Former Cape Coral mayor John Sullivan and his co-defendants in a lost lawsuit to have a redux of the Nov. 5, 2013 municipal election have filed an appeal to overturn a court ruling that they pay legal and court costs.
Sullivan and his team filed the paperwork Monday, saying their case had merit and that they shouldn't be on the hook for an estimated $175,000-plus.
Sullivan lost to Mayor Marni Sawicki by 121 votes after which he and a handful of supporters sued, alleging, among other things, that the city's canvassing board was illegally constructed, that a precinct had closed before the 7 p.m. scheduled closing time, that some voted illegally, and that early voting results were too heavily in Sawicki's favor.
Judge Alane Laboda heard the case in February and called the lawsuit "meritless." She ordered the plaintiffs to pay court costs and legal fees.
Sullivan then asked for reconsideration of the ruling in favor of the defendants, which was denied.
Reaction to his latest effort, the appeal to the Court of Appeals, was swift.
Supervisor of Elections Sharon Harrington's response was a sarcastic, "OMG."
"I thought it was an April Fool's joke," she said in a telephone interview Wednesday. "I don't understand it because we showed them documentation of everything they thought was wrong. I didn't pick the canvassing board and he served on one just like it."
Harrington called the appeal a waste of time, especially at a time when special elections are coming up for the District 19 Congressional seat left vacant by the resignation of former congressman Trey Radel. The Republican primary is April 22 with early voting set to open April 12.
Cape Coral Councilmember Rana Erbrick, another defendant in the case as a member of the canvassing board, said this is simply round 2.
Although he filed the paperwork, attorney Leigh Fisher will not be handling the appeal due to a possible conflict with representation.
Fisher filed papers with the court requesting to be released from the case, citing an "ethical problem in that there will have to be a hearing in regards to the awarding of fees and how much, which could have an adverse affect on his client."
"It's not that I quit or that we're fighting, I'm just not able to do it," Fisher said Wednesday. "The Bar prohibits you from representing a client where you might have a conflict."
Fisher said he didn't want to be placed in a situation where, should Sullivan's camp lose again, there might be an action placed against him. He added there is no indication of that.
Any potential conflict lies with the fees. There is no set amount yet, as the defendants in the case still have to prove their costs at a hearing yet to be held.
Fisher said it's unusual to have payment of court costs and fees ordered in a case like this, especially since they brought a judiciable issue to the court regarding the appointment of the canvassing board.
"We thought we brought up an issue, the judge didn't think so and ruled otherwise," Fisher said. "But that's up to those guys, and I won't be able to represent them."
Fisher said he informed the Sullivan group Tuesday that he had to withdraw and gave them some names as to who could take over the case and their fee schedules.
Co-defendant William Deile confirmed the information, saying the next move is to talk to the other side and reach an agreement on fees.
If they can't do that, a judge will rule at a hearing, followed by an appeal of that ruling.
"The judge can apportion the fees between the parties, so it's a benefit to have the award held against Fisher, and it's his benefit to have them pushed on Sullivan," Deile said.
He said the $175,000 estimate by those who were sued isn't so cut and dry.
"We have to look at the billings. The other side had so many lawyers doing the same thing. Sawicki had her own and there was some Democratic PAC money that came down from someplace," Deile said. "Her lawyer is in charge of 20-some PACs."
Deile also asked whether $400 an hour was a reasonable fee to which the court would agree, could a paralegal have done the job, and should the travel of Sawicki's attorney from Tallahassee be included?
If Sullivan and his supporters are successful with their appeal, the legal fees and court costs will be paid by the city and Elections Office, both of which are taxpayer-funded.