LEWIS, J.
This case is before the Court for review of the decision of the Fifth District Court of Appeal in Orlando/Orange County Expressway v. Tuscan Ridge, LLC (Tuscan Ridge II), 137 So.3d 1154 (Fla. 5th DCA 2014). In the decision, the district court ruled upon a question that it certified to be of great public importance. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Article X, section 6, of the Florida Constitution governs eminent domain. Subsection (a) of that provision states that "[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner."
This case involves an award of attorney's fees in an eminent domain proceeding. The award of such fees is governed
The Orlando-Orange County Expressway Authority, now the Central Florida Expressway Authority (the Authority),
On June 5, 2006, the Authority submitted to Doerr a presuit written offer to purchase Parcel 406 for $4,914,221. Id. Doerr rejected the offer, and in August 2006, the Authority filed an action to condemn the property. Id.
Thereafter, Doerr and Ministry (collectively the Landowners) filed a motion for attorney's fees. Id. The Authority sought to limit the fees to the benefits achieved formula under section 73.092(1), which generated an award of $227,652.25. Id. On the other hand, the Landowners asserted that they were entitled to attorney's fees under section 73.092(2), which requires a trial court to consider qualitative and quantitative factors in determining the amount of a fee award. Id. The trial court awarded fees under subsection (2) because it concluded that the Authority's presuit written offer was insufficient to calculate the benefits achieved by each Landowner in the final judgment so as to permit a fee award under subsection (1). Id. at 414. Applying the factors listed in section 73.092(2), the trial court awarded the Landowners $816,000 in attorney's fees for the proceedings that involved the valuation of Parcel 406. Id. at 412-13.
The Fifth District Court of Appeal reversed. Id. at 411. The district court concluded that the presuit offer was not so indefinite that the benefits achieved by the Landowners could not be determined. Id. at 416. In its decision, the Fifth District noted that this case had been over-litigated, and the parties blamed each other for the significant attorney's fees incurred:
Id. at 413. Although the Fifth District concluded that the attorney's fees for the valuation proceedings were limited to those allowed by section 73.092(1), it remanded to the trial court for consideration of the Landowners' claim that the application of the benefits achieved formula violated their constitutional right to full compensation because the Authority caused excessive litigation. Id. at 418-19.
On remand from the Fifth District, the trial court found that the Authority had engaged in a "clear pattern" of excessive litigation. The first source of excessive litigation was described as follows:
The trial court also found that the Authority caused excessive litigation by spending twice as much time deposing the Landowners' experts as the Landowners spent deposing the Authority's experts.
The trial court noted that all of the attorney's fees expert witnesses who testified as to what would constitute a reasonable fee, including the Authority's expert, agreed that it would be unreasonable, given the circumstances of this case, to limit the Landowners to the $227,652.25 capped fee that the benefits achieved formula in section 73.092(1) generated.
The trial court held that section 73.092(1) was unconstitutional as applied under the facts of this case because it operated to deny the Landowners their right to full compensation. The court found that the Landowners reasonably incurred 2,200 attorney hours and 400 paralegal hours through the entry of final judgment. It then determined that the original fee award of $816,000:
The court noted that in determining the fee, it had considered and applied the factors delineated in sections 73.092(2) and (3).
On appeal, the Fifth District again reversed. Tuscan Ridge II, 137 So.3d at 1155. The district court noted that the $227,652.25 fee award under the benefits achieved formula amounted to a blended rate of eighty-seven dollars per hour for attorney and paralegal time, and opined that such a fee did not appear to be "patently unconstitutional." Id. at 1156. The court suggested that the Landowners could have sought sanctions that would have compensated them above the statutory fee. Id. The district court stated that instead of using other mechanisms to address the "purportedly" abusive tactics of the Authority, the Landowners "successfully convinced the trial court to scrap the entire fee formula as unconstitutional." Id. at 1156. The Fifth District held that the trial court erred when it awarded the Landowners $816,000 in attorney's fees and remanded the case with instructions that judgment in the amount of $227,652.25 be entered. Id. at 1157. However, the district court certified the following question to this Court as one of great public importance:
Id. For purposes of our review, we rephrase the question as follows:
The determination as to the constitutionality of a statute is reviewed de novo. Fla. Dep't of Revenue v. City of Gainesville, 918 So.2d 250, 256 (Fla.2005). However, statutes carry a presumption of constitutionality and must be construed whenever possible to achieve a constitutional
In clear and direct terms, article X, section 6(a), of the Florida Constitution provides that "[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner." (Emphasis supplied.) It is also fundamentally clear that full compensation under the Florida Constitution includes the right to a reasonable attorney's fee for the property owner. Tosohatchee Game Pres., Inc. v. Cent. & S. Fla. Flood Control Dist., 265 So.2d 681, 684-85 (Fla.1972); see also JEA v. Williams, 978 So.2d 842, 845 (Fla. 1st DCA 2008) ("A landowner's constitutional right to full compensation for property taken by the government includes the right to a reasonable fee for the landowner's counsel.").
Dade Cnty. v. Brigham, 47 So.2d 602, 604-05 (Fla.1950) (emphasis supplied).
The benefits achieved formula set forth in section 73.092 has encroached on this fundamental right, but has previously withstood a facial constitutional challenge. In Seminole County v. Coral Gables Federal Savings & Loan Ass'n, 691 So.2d 614, 614 (Fla. 5th DCA 1997), the Fifth District rejected an assertion that section 73.092 is unconstitutional because it divests the judiciary of the ability to determine reasonable attorney's fees for a private property owner. The district court held that the Legislature has the authority to establish a sliding-percentage scale for attorney's fees awards:
Id. at 615. Subsequent to Seminole County, this Court addressed the benefits achieved formula in section 73.092(1) and notwithstanding the compromise of "full compensation" allowed the Florida Legislature to enact "reasonable" provisions to govern attorney's fees awards in eminent domain proceedings. Pierpont v. Lee Cnty., 710 So.2d 958, 960 (Fla.1998). Consistent with Pierpont and Seminole County, and in accordance with the directives of the statute, Florida courts have awarded attorney's fees pursuant to section 73.092(1) where subsection (2) has no application. See, e.g., Dep't of Transp. v. Knaus, 737 So.2d 1130, 1131 (Fla. 2d DCA 1999); Teeter v. Dep't of Transp., 713 So.2d 1090, 1091-92 (Fla. 5th DCA 1998); Dep't of Transp. v. LaBelle Phoenix Corp., 696 So.2d 947, 948 (Fla. 2d DCA 1997).
Nonetheless, although the Legislature may establish reasonable parameters for the award of attorney's fees in eminent domain proceedings, a statute cannot operate in a manner to so reduce a fee award that it runs afoul of the constitutional guarantee that private property owners receive full compensation for a taking of their property. Indeed, in Pierpont we acknowledged the possibility that section 73.092 could be unconstitutional as applied in certain situations. 710 So.2d at 961. While the landowners in Pierpont offered two scenarios, see id. at n. 2, we did not indicate that these were the only potential areas for constitutional concern.
We have previously emphasized the importance of fair play in eminent domain proceedings because of the inherent disadvantage to the property owner:
Shell v. State Rd. Dep't, 135 So.2d 857, 861 (Fla.1961). Here, the trial court found that it was the Authority which had caused the excessive litigation that operated to the detriment of the Landowners' right to full compensation. Moreover, the trial court noted that all of the attorney's fees experts who testified as to what would be a reasonable fee, including the expert for the Authority, agreed that given the circumstances
We agree with the Landowners that where a condemning authority is responsible for excessive litigation, the application of subsection (1) to limit a fee award places private property owners at a considerable disadvantage because government entities, such as the Authority,
Therefore, to construe section 73.092(1) in a manner that preserves its constitutionality, as we have a duty to do, see Crist, 978 So.2d at 139, while simultaneously protecting the right of private property owners to full compensation, we hold that when a condemning authority engages in tactics that cause excessive litigation, the trial court shall utilize section 73.092(2) to calculate a reasonable attorney's fee, but only for those hours incurred in defending against the excessive litigation or that portion that is considered to be in response to or caused by the excessive tactics. The remainder of the fee shall be calculated pursuant to the benefits achieved formula delineated in section 73.092(1). The two amounts added together shall be the total fee. This bifurcated calculation strikes a fair balance by ensuring that private property owners receive the full compensation to which they are entitled under the Florida Constitution, without disregarding the legislative directive that attorney's fees for the valuation portion of an eminent domain proceeding are to be calculated using the benefits achieved formula.
We decline to attempt to define with absolute precision each and every element or item that could constitute or be considered excessive litigation in eminent domain cases other than to state it is litigation that diverges from what both trial courts and the legal community would normally expect in a normal or usual condemnation case with regard to the work performed, theories and evidence advanced, and the number of attorney and paralegal hours expended.
Although the attorneys for the Landowners unquestionably expended a significant number of hours defending against
We conclude that application of a simple and normal hourly multiplication to calculate the attorney's fee award is inconsistent with the language of section 73.092(1), which provides that "[e]xcept as otherwise provided in this section and s.73.015, the court, in eminent domain proceedings, shall award attorney's fees based solely on the benefits achieved for the client" (emphasis supplied). To implement our holding today, an evidentiary hearing is required, during which the trial court is to determine the number of hours that were expended by the attorneys and related personnel for the Landowners that corresponds with the excessive litigation conduct caused by the Authority and may be determined to be that portion of the total work performed attributable to the excessive actions of the condemning counsel or party. For solely those hours, the trial court shall calculate a fee pursuant to section 73.092(2). This additional amount shall be added to the amount resulting from the application of section 73.092(1), which must be applied to determine the remainder of the fee based on benefit, which in this case is $227,652.25.
The Fifth District criticized the Landowners for their failure to rely on sanctions to secure attorney's fees above the statutory fee. Tuscan Ridge II, 137 So.3d at 1156. However, we disagree that the Landowners were required to pursue only sanctions and conclude that they are not sufficient to protect the constitutional right at issue here. We reiterate that there is a constitutional right to full compensation for the taking of private property, art. X, § 6(a), Fla. Const., and a reasonable attorney's fee is part of that compensation. Tosohatchee, 265 So.2d at 684-85; JEA, 978 So.2d at 845. The award of attorney's fees as a sanction is a discretionary, punitive concept that is completely separate and distinct from this right under the Florida Constitution we consider today.
Additionally, the over-litigation or excessive litigation of a case does not necessarily equate with bad faith or illegal motives. While the trial court found that Dr. Fishkind's valuation of Parcel 406 was based on faulty assumptions that had to be rebutted by the Landowners' attorneys, this does not mean that the Authority acted in bad faith or with evil intent when it retained him. Similarly, the fact that the Authority's attorneys may have been overzealous and spent an inordinate amount of time deposing the Landowners' experts does not lead to an automatic conclusion that the Authority engaged in bad faith conduct
Based on the foregoing, we answer the rephrased certified question in the affirmative. We hold that when a condemning authority engages in tactics that cause excessive litigation, section 73.092(2) shall be used separately and additionally to calculate a reasonable attorney's fee for the hours expended which are attributable to defending against the excessive litigation or actions. This will result in an amount that must be added to the remainder of the fee calculated utilizing the benefits achieved formula delineated in section 73.092(1). This is a two-step process that results in a total fee that is based both on benefit and any excessive litigation.
The decision of the Fifth District is quashed. This case is remanded with directions that the trial court conduct an evidentiary hearing to determine the total attorney's fees based on both the benefit and the portion of the work attributable to the excessive litigation and actions.
It is so ordered.
LABARGA, C.J., and PARIENTE, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.
