Underhill's Amended Compaint and Petition for Writ of Mandamus Gets "Vaporized"by Attorney Rick Figlio

Rick Figlio's assessment of Doug Underhill's latest request for taxpayer money to fund his legal costs looks a lot like this picture, above....

Like a devastating wrecking ball job--- with the "building" being Doug Underhill's amended complaint and petition for Writ of Mandamus in the circuit court (another attempt to get his legal fees paid by the taxpayers)---Tallahassee powerhouse attorney Rick Figlio demolishes every argument Underhill makes. Piece by piece, item by item, line by line, down to the granular and then the atomic detail.  I mean, it is an absolute evisceration.

Local businessman David Bear requested this written opinion from his attorney Figlio, and recently received it.  

I am copying the opinion here for interested persons to download and read what a well-written, concise, and solid opinion this is.  It's going to spell trouble for Doug and his quest for taxpayer funding for his legal costs and fees---if the county's response looks anything like this well written rebuttal (which the county's opinion now should 😜).  Big trouble for the quest for cash from Underhill.

Highlights from the document:

“I believe that each of the counts of the Amended Complaint

has little legal merit. I would characterize Count II, seeking recovery of fees under section 111.07,

Florida Statutes, and Count III, seeking mandamus, as specious because each of these counts relies

on either a fundamental misconstruction of Florida statutes, settled precedent, or both..

 

the Board’s decision to pay legal fees is an

inherently discretionary act, which would preclude issuance of a writ of mandamus as a matter of

axiomatic Florida law. It is also clear from the attachments to the Amended Complaint that no

amount of argument or evidence can overcome the Amended Complaint’s plain deficiencies..

 

Count I likewise fails to state a claim for which relief

can be granted. In order to be entitled to reimbursement under the common law, Underhill must

plead and prove that the litigation for which he seeks reimbursement (1) arose out of or in

connection with the performance of his official duties and (2) served a public purpose. Thornber

v. City of Ft. Walton Beach, 568 So. 2d 914, 917 (Fla. 1990). The claim’s failure relates to the

second prong, as the Amended Complaint acknowledges that the Defamation Suit alleged that

Underhill committed the intentional tort of defamation against one of his constituents and further

acknowledges that Underhill was not vindicated in the action, but rather was able to escape liability

irrespective of guilt by virtue of the trial court’s finding that he was immune from suit. Put simply,

commission of the intentional tort of defamation against a constituent cannot be said to “serve a

public purpose,” and the Amended Complaint does not allege Underhill was innocent—only that

he was immune..

 

Underhill’s request for mandamus must fail. Mandamus is a civil

remedy to compel a public official to discharge a ministerial duty. Browning v. Young, 993 So. 2d

64, 65 (Fla. 1st DCA 2008). To prevail, the party petitioning for mandamus must plead ultimate

facts showing (1) the public official has a clear legal duty to perform a ministerial act; (2) the

petitioner has a clear legal right to have the duty performed; and (3) the petitioner does not have

another legal remedy available. See RHS Corp. v. City of Boynton Bch., 736 So. 2d 1211, 1213

(Fla. 4th DCA 1999) (affirming dismissal of petition for mandamus to compel city to inspect

certain property and enforce land development regulations against a private property owner).

Here, Commissioner Underhill does not, and cannot, allege facts to support a clear legal

entitlement to the payment of his attorneys’ fees, and, therefore, cannot state a cause of action for

mandamus. A party seeking mandamus must demonstrate a clear legal right to performance of the

act requested. Butler v. City of Melbourne Police Dep’t, 812 So. 2d 547, 548 (Fla. 3d DCA 2002).

A “clear legal right” must be one not subject to differing reasonable interpretations. See Sancho

v. Joanos, 715 So. 2d 382, 385 (Fla. 1st DCA 1998)....."