Palmer Litigation: An Exercise in Superfluousness and Futility

by SDM

The verdict is in and… (drumroll) …Palmetto Bay lost to Palmer, again!

In the now immortal words of Judge Schwartz:

In essence, therefore, everything in the circuitous legal journey which followed [Palmer's hearing] was an exercise in superfluousness and futility. Since the effect of the order now under review, however fashioned, was to require what was required from the beginning, I concur in denying the petition. (Emphasis added.)

That, good readers, is the sound of a judge figuratively and forcefully slapping Palmetto Bay’s tuchus (that’s rear end or behind for those of you not familiar with Yiddish).

Of course, SDM will not be surprised if the three amigos attempt to find some way to locate a silver lining in this ominous storm cloud. Unfortunately for them, such a ray of hope does not exist. Here is Judge Wells’ exceedingly clear and devastating conclusion:

In sum, Palmer Trinity sought a special exception which would permit expanding its student enrollment to 1150. At the public hearing which followed, Palmer Trinity adduced competent substantial evidence to support its 1150 student request; no competent substantial evidence was submitted to support either denying or limiting the school’s enrollment request. Palmetto Bay nonetheless denied the 1150 number, lowered the acceptable number to 900 students, and granted the exception. Based on its finding of the lack of competent substantial evidence supporting a “cap” below 1150, the circuit court appellate division ordered the limitation deleted. Palmetto Bay claimed that its compliance with that ruling required only that it delete the 900 student figure, making it free to leave its “denial” of special exception for 1150 students in place. A simple straight forward reading of the circuit court’s ruling contradicts that conclusion. When Palmetto Bay amended Resolution 2010-48, on July 19, 2011, that resolution should have reflected acceptance and incorporation of the circuit court’s decision rejecting any “cap” below 1150. In other words, Palmetto Bay is wrong in arguing its denial of the special exception for 1150 students could remain in place after the circuit court’s February 11, 2011 ruling. Palmetto Bay’s denial of the special exception for 1150 students should have been excised from its Amended Resolution, just as was the 900 student “cap.” Any other interpretation of the circuit court’s February 11, 2011 ruling amounted to wishful thinking at best, and more likely a willful disobedience of that court’s instructions. The circuit court’s order enforcing its earlier mandate was therefore entirely proper and in no way justifies the issuance of the writ sought herein.

For these reasons, the petition for writ of certiorari is denied. (Emphasis added.)

Now, in a community like Greater Miami if you hunt around long enough, you may find a lawyer who will convince you to appeal a ruling like this one. So some on the village council may want to delay the inevitable (say, until after the election) and take another appeal. They should not be permitted to do so and here’s why.

First, if SDM is counting correctly, six senior judges have rejected Palmetto Bay’s arguments so far. These are not a bunch of dopes either. Some of the names on this opinion could easily be serving on the federal bench. They are persons of high repute in the legal community and their opinions have been coherent though not always perfectly drafted. Nothing in these opinions stands out as a serious legal error. To take another appeal means finding a demonstrable error – good luck.

Second, village residents have been left in the dark about whether the most recent appeal really had any chance of success. To paraphrase Winston Churchill: an iron curtain has descended on Palmetto Bay shielding its attorneys from the public. If there is any serious thought about further appeals, the public is owed an explanation by the village attorney and the hired guns from White & Case. They need not discuss tactics, but they must tell the public why another appeal is necessary and how and why it would succeed.

Third, there still may be time to settle with Palmer. Ok, maybe SDM is still a little hung over from the 4th, but why not make a serious attempt? Exempt Palmer from future village stupidity - that alone may be enough to induce a settlement. Palmetto Bay tax payers are facing a monster legal bill from Palmer and may be facing a damages claim. Settling now can limit further litigation over damages and costs (i.e., we’re in a hole so stop digging!).

Here is a final plea from SDM to the only attorney on the village council (you know who you are): It’s time for the big boys and girls to take over from the nut jobs and close this case down. If you continue to pursue this futile case, it is you who will become superfluous.

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