To the editor:

The article in The Breeze Nov. 22 “Three Fishermen” should really have the label of “Three Fishermen and their two Attorneys.” The reason is the three petitioners (plaintiffs) in the action (lawsuit) against the city are represented by two attorneys who potentially share in paying any recovery by the city.

These people brought a lawsuit against the City of Cape Coral in opposition to the removal of the Chiquita Lock. That action has cost the taxpayers of Cape Coral over $1 million in legal fees, expert fees, court cost, and related expenses.

Florida has a statutory law that governs the recovery of fees by the prevailing party, should the petitioner/plaintiff bring a frivolous lawsuit. The purpose is to discourage frivolous lawsuits that tie up the courts and cost taxpayers or defendants significant sums of money

I am not an attorney, but it is clear from reading commentary —

Fla. Stat. 57.105 allows someone who wins a lawsuit to recover attorney’s fees in certain circumstances. At its core, the statute allows a court to award “a reasonable attorney’s fee” to a party that wins a lawsuit based on its own initiative “or a motion of any party.” If this happens, the losing party and his or her lawyer may each be responsible for paying the prevailing party’s fees and costs.   

I am not sure why the “Three Fishermen” are not mentioning that their two attorneys may also be responsible for any fees awarded, maybe oversight, but it wasn’t mentioned in their comments before city council, or in The Breeze article.

The central issue to decide as to whether this is a frivolous lawsuit is the responsibility of the judge, not the people in the City Council. The new council has a lot on its plates, this should not be one of them. Judge Suzanne Van Wyk from Tallahassee has been a judge for 12 years. She took copious notes during the hearing (trial), she made her rulings throughout the discovery period and the hearing, in line with the law. She is unbiased. She ruled on behalf of the City of Cape Coral because the two experts presented by the petitioners and their attorneys were “irrelevant,” “his testimony … was neither credible nor reliable”, “presented no substantive testimony or other evidence, including any analyses,” “during cross -examination, he (petitioner’s expert) apologized for this ‘oversight.'”

Despite the above being developed during discovery and the hearing, and the attorneys for the city of Cape Coral offering the petitioners the opportunity to withdraw their action and no recovery of fees would be pursued, the petitioners and their two attorneys pressed on causing additional expense for the taxpayers of Cape Coral. In other words, they had an opportunity to withdraw and would not be in this situation, but they made a conscious decision to continue. Now they do not want to be responsible for the decisions they (or their attorneys) made.

The hearing on whether this was a frivolous lawsuit is set to present evidence before Judge Van Wyk the last week of February 2025. As citizens of Cape Coral, we should allow Judge Van Wyk to hear evidence and render her opinion. That is what the judicial process is for.

Not allowing the judicial process to move forward would be a slap in the face to the taxpayers of Cape Coral.

Dennis Costello

Cape Coral