           Case: 12-16006   Date Filed: 07/15/2013   Page: 1 of 12


                                                         [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      __________________________

                              No.12-16006
                         Non-Argument Calendar
                      __________________________

                 D.C. Docket No. 4:11-cv-00450-RH-CAS

ROBERT BARNHART,

                                                               Plaintiff-Appellee,

                                  versus

LAMAR ADVERTISING COMPANY,

                                                                      Defendant,

THE LAMAR COMPANY, LLC,

                                                          Defendant-Appellant.

                      __________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                     __________________________
                              (July 15, 2013)


Before HULL, JORDAN, and COX, Circuit Judges.

PER CURIAM:
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         The Lamar Company, LLC (Lamar) challenges on appeal the district court’s

denial of its motion for attorney’s fees and costs. After review, we affirm.

                                               I.

         Robert Barnhart used to work for Lamar, a company that builds and

maintains billboards. (Dkt. 25 at 2.) In September 2011, Barnhart sued Lamar,

alleging that Lamar violated the Florida Whistleblower Act, Fla. Stat. §§ 448.101–

.105. (Dkt. 1.) In his third amended complaint (the operative pleading), Barnhart

essentially alleges that his supervisor told him to poison trees that blocked Lamar’s

billboards. (Dkt. 25 at 3–5.) Barnhart eventually informed his supervisors in July

2011 that he refused to continue this practice. (Id. at 5.) As a result, he alleges

that he “received written notice from . . . Lamar that he had been terminated.”

(Id.)1

         Other pertinent facts emerged during the litigation. One such fact was that

before he filed suit or complained about the tree poisoning, Barnhart suffered a

back injury in June 2011. (Dkt. 31 at 4–6.) As a result of the injury, he filed

petitions for workers’ compensation benefits in which he claimed that he was

disabled. (Id. at 7.) He also repeatedly told Lamar that he could not return to his




         1
         This allegation turned out to be false—Lamar never sent him a written termination letter
before he filed this action.
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former job. (Id. at 7–8.) In this case, however, Barnhart takes the opposite

position—he could return to work, and Lamar fired him anyway in retaliation for

complaining about the tree poisoning. (Dkt. 32 at 16–17; Dkt. 37 at 7–9.)

       Lamar moved for summary judgment, and so did Barnhart. (Dkts. 31 & 32.)

The district court granted summary judgment in favor of Lamar and denied

summary judgment for Barnhart. (Dkt. 68.) It reasoned that Barnhart had failed to

prove that Lamar fired him because of his tree-poisoning complaint and not

because of his inability to return to his former job.                 (Id. 68 at 5–7.)       Soon

thereafter, Lamar moved for attorney’s fees. (Dkt. 73.) The district court denied

the motion. (Dkt. 76.) Lamar appeals.2

                                                II.

       On appeal, Lamar argues that the district court erroneously denied its motion

for an award of attorney’s fees. Lamar’s motion sought an award of fees against

Barnhart’s counsel under 28 U.S.C. § 1927. The motion also sought, in the

alternative, an award of fees against Barnhart personally under Fla. Stat. § 448.104.

Lamar contends that the cost of defense exceeded $180,000.



       2
          On January 3, 2013, we issued a jurisdictional question to the parties asking whether
there is subject-matter jurisdiction. We are satisfied that subject-matter jurisdiction exists under
28 U.S.C. § 1332. The record indicates that the parties are completely diverse. Lamar LLC’s
sole member is Lamar Media Corp., which is incorporated under the laws of Delaware with its
principal place of business in Louisiana. And, Barnhart is a citizen of Florida.
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      Both parties agree that we review this issue for an abuse of discretion—a

highly deferential standard of review, see United States v. Frazier, 387 F.3d 1244,

1259 (11th Cir. 2004) (en banc). A district court abuses its discretion if it applies

an incorrect standard or bases its decision on findings of fact that are clearly

erroneous. See Peer v. Lewis, 606 F.3d 1306, 1311 (11th Cir. 2010).

                                          A.

      Lamar argues that the district court’s order does not provide enough

explanation to allow for meaningful appellate review, and for that reason, we

should vacate the court’s order and remand the case. But, the court explained its

reasons for denying fees. After considering the facts, the court determined that

“[a]n employee and his attorney could reasonably conclude under these

circumstances that there were good grounds to pursue a whistleblower claim.”

(Dkt. 76 at 4.) To be sure, the order is concise, but it provides enough analysis for

us to conduct a meaningful review. Cf. McMahan v. Toto, 256 F.3d 1120, 1128

(11th Cir. 2001) (reviewing a district court’s denial of fees despite the fact that the

district court said “simply that [the parties] have not unreasonably extended the

proceedings”(internal quotation marks omitted)).




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                                        B.

      Lamar’s next argument is that the court erroneously denied its request for

fees under 28 U.S.C. § 1927. Section 1927 provides, in relevant part, that “[a]ny

attorney . . . who so multiplies the proceedings in any case unreasonably and

vexatiously may be required by the court to satisfy personally the excess costs,

expenses, and attorneys’ fees reasonably incurred because of such conduct.” 28

U.S.C. § 1927. Congress designed § 1927 “to sanction attorneys who ‘willfully

abuse the judicial process by conduct tantamount to bad faith.’” Schwartz v.

Millon Air, Inc., 341 F.3d 1220, 1225 (11th Cir. 2003) (quoting Malautea v. Suzuki

Motor Co., 987 F.2d 1536, 1544 (11th Cir. 1993)). For a court to justify an award

of sanctions under § 1927, three conditions must be satisfied: (1) the attorney must

engage in unreasonable and vexatious conduct, (2) that conduct must have

multiplied the proceedings, and (3) the amount of sanctions must bear a financial

nexus to the excess proceedings. Peterson v. BMI Refractories, 124 F.3d 1386,

1396 (11th Cir. 1997).

      Lamar argues that the district court abused its discretion in denying fees

under § 1927 because it “apparently” failed to apply the correct legal standard.

(Appellant’s Br. at 15.) We disagree. Our review of the court’s order does not




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reveal any application of an incorrect legal standard. And, the order correctly lays

out the law concerning an award of fees under § 1927. (See Dkt. 76 at 2.)

       But in any event, the district court did not clearly err in finding that Barnhart

and his counsel had “good grounds” to pursue this claim. (Id. at 4.) That is,

counsel did not engage in unreasonable and vexatious conduct because this claim

was not frivolous, and this claim did not become frivolous during the course of the

litigation.

       An attorney engages in unreasonable and vexatious conduct when the

conduct is “so egregious that it is tantamount to bad faith.” Norelus v. Denny’s,

Inc., 628 F.3d 1270, 1282 (11th Cir. 2010) (quoting Amlong & Amlong, P.A. v.

Denny’s, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007)) (internal quotation marks

omitted). An attorney acts in bad faith when he “knowingly or recklessly pursues a

frivolous claim.” Peer, 606 F.3d at 1314. Negligent conduct is not enough.

Amlong & Amlong, 500 F.3d at 1241–42. “Determinations regarding frivolity are

to be made on a case-by-case basis.” Sullivan v. Sch. Bd. of Pinellas Cnty., 773

F.2d 1182, 1189 (11th Cir. 1985). A case may be weak, but as long as it is not

“without circumstantial foundation,” it is not frivolous. Hudson v. Int’l Computer

Negotiations, Inc., 499 F.3d 1252, 1265 (11th Cir. 2007) (quoting Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1187 (11th Cir. 2005)). When deciding if a claim is


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frivolous, we ask “whether th[e] evidence was so obviously deficient that [the

party] and her counsel should be forced to pay . . . attorney’s fees and expenses.”

Cordoba, 419 F.3d at 1180. Moreover, whether an attorney acts in bad faith is a

question of fact that we review for clear error.     See Malautea, 987 F.2d at 1544

(concluding that the district court did not clearly err in finding that the attorney had

acted in bad faith).

      Here, we cannot say that the court clearly erred in finding that Barnhart’s

counsel did not act in bad faith because he had “good grounds” for bringing and

pursuing this claim under the Florida Whistleblower Act. (Dkt. 76 at 4.) Under

the Act, “[a]n employer may not take any retaliatory personnel action against an

employee because the employee has . . . [o]bjected to, or refused to participate in,

any activity, policy, or practice of the employer which is in violation of a law, rule,

or regulation.” Fla. Stat. § 448.102.

      There was a good faith basis for bringing this claim. As the district court

points out, no one seems to dispute that Lamar poisoned trees. (Dkt. 76 at 4.)

Indeed, Barnhart participated in the poisoning, then objected to it, and then Lamar

“replaced” him after his complaint. (Dkt. 31 at 8.)

      We cannot conclude that the district court clearly erred in finding that there

was a good faith basis for pursuing this claim. We acknowledge that Barnhart filed


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workers’ compensation petitions in which he claimed that he was medically unable

to do his former job and repeatedly told Lamar that he did not think he could return

to his former job. Like the district court, we too find this to be a “curious”

position. (See Dkt. 68 at 6.) But it is not frivolous. Barnhart reasonably argued

that Lamar might permanently assign him to a light-duty position and that he was

not permanently reassigned in retaliation for his complaint about the tree

poisonings. (Dkt. 73 Ex. A, at 15, 26, 28–29.) This argument does not entirely

lack a factual basis. Lamar’s Vice President of Human Resources said that light-

duty positions are offered to employees on a case-by-case basis and that Lamar

does not have a written policy on whether a disabled employee may receive a light-

duty position. (Dkt. 74 Ex. A, at 14.)

      In addition, conflicting medical testimony existed—some of Barnhart’s

doctors said he could not return to work and at least one of his doctors (Dr. Carr)

said he could return to work. Before the district court, Barnhart argued that while

he was not aware of his doctor’s instruction that he could return to work (he first

received this information through discovery), Lamar was aware of it and still fired

him because of his complaint about the tree poisoning, (see Dkt. 73 Ex. 1, at 16–

17, 19.) According to Barnhart, Lamar’s workers’ compensation carrier received




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Dr. Carr’s record, and therefore Lamar knew there was evidence that Barnhart

could return to work. (Id. at 8, 16–17, 27.)

      Barnhart lost at summary judgment because he could not prove that Lamar

permitted employees to permanently work in light-duty assignments or that Lamar

knew that, arguably, he could return to work at his former position. (Dkt. 68 at 5–

7.) But that does not mean that he “willfully abuse[d] the judicial process” in

pursuing his claim. See Schwartz, 341 F.3d at 1225. Indeed, “[s]omething more

than a lack of merit is required for § 1927 sanctions.” McMahan, 256 F.3d at

1129. On the record before us, we cannot conclude that the district court abused its

discretion in failing to find bad faith.

      Further, the incorrect allegation in Barnhart’s complaint that he received a

termination letter, while an indication of sloppy pleading, does not amount to bad

faith. Lamar fails to point us to any convincing evidence that suggests that the

inclusion of the false allegation was more than simple negligence. See Schwartz,

341 F.3d at 1225 (noting that § 1927 “is not about mere negligence”). Lamar also

contends that Barnhart’s counsel acted in bad faith by engaging in frivolous

motions practice and making unnecessary discovery demands.                 Lamar fails,

however, to indicate which motions or demands were frivolous and exactly why

those motions or demands lacked a legal or factual basis. See Doe v. Moore, 410


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F.3d 1337, 1349 n.10 (11th Cir. 2005) (“[W]e require appellants to not only state

their contentions to us, but also to give the reasons for them, with citations to

authorities and parts of the record on which the appellant relies.” (internal

quotation marks omitted)).

      For these reasons, we cannot conclude that the district court abused its

discretion in denying an award of fees under § 1927.

                                          C.

      Finally, Lamar argues that the court erred in denying an award of fees

against Barnhart personally under Fla. Stat. § 448.104. Section 448.104 says that

“[a] court may award reasonable attorney’s fees, court costs, and expenses to the

prevailing party.” Fla. Stat. § 448.104. Awarding fees under § 448.104 is within

the court’s discretion. New World Commc’ns of Tampa, Inc. v. Akre, 866 So. 2d

1231, 1235 (Fla. Dist. Ct. App. 2003).

      Lamar makes three arguments in support of the contention that the district

court abused its discretion in denying fees under Fla. Stat. § 488.104. First, it

contends that the district court erred in not considering any of the factors laid out in

Blanco v. Transatlantic Bank, No. 07-20303-CIV, 2009 WL 2762361, at *2 (S.D.

Fla. Aug. 31, 2009). However, in its motion for attorney’s fees, Lamar says that

the “consideration of these neutral factors is not mandatory upon this Court.” (Dkt.


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73 at 12.) Lamar cannot now argue that the district court erred in failing to

consider the Blanco factors when it told the district court that it did not have to

consider those factors. 3 See Ford ex rel. Estate of Ford v. Garcia, 289 F.3d 1283,

1293–94 (11th Cir. 2002) (“It is a cardinal rule of appellate review that a party may

not challenge as error a ruling or other trial proceeding invited by that party.”

(quoting United States v. Ross, 131 F.3d 970, 988 (11th Cir. 1997))).

       Lamar next argues that the district court wrongly applied the heightened

standard from Christianburg Garment Co. v. EEOC, 434 U.S. 412, 422, 98 S. Ct.

694, 701 (1978), which requires a defendant seeking attorney’s fees to prove that

the plaintiff’s claim was “frivolous, unreasonable, or groundless, or that the

plaintiff continued to litigate after it clearly became so.” But this argument fails

because the district court’s order expressly says that it assumes that Lamar does not

have to meet the Christianburg standard. (Dkt. 76 at 3.)

       Third, Lamar contends that the court clearly erred in denying fees. We see

no clear error for the same reasons that we could not conclude that the court erred




       3
          But assuming for the sake of argument that the district court should have applied the
Blanco factors, the order implicitly addresses three of the five non-exhaustive factors. The
district court concluded that Barnhart’s claim was not frivolous (Blanco factor #1), that awarding
fees in this case would frustrate the purposes of the Florida Whistleblower Act (Blanco factor
#4), and that Barnhart did not act in bad faith (Blanco factor #5). (See Dkt. 76 at 4.)
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in denying fees under § 1927. In short, the court’s decision to deny fees was not an

abuse of discretion.

                                        III.

      This is a close case, but one in which we are heavily guided by the standard

of review.   See Frazier, 387 F.3d at 1259 (“[U]nder the abuse of discretion

standard of review there will be occasions in which we affirm the district court

even though we would have gone the other way had it been our call.”). We find no

abuse of discretion.

      AFFIRMED.




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