Filed: Nov. 05, 2015
Latest Update: Mar. 02, 2020
Summary: Supreme Court of Florida _ No. SC14-1007 _ JOSEPH B. DOERR TRUST, et al., Petitioners, vs. CENTRAL FLORIDA EXPRESSWAY AUTHORITY, et al., Respondents. [November 5, 2015] 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
Summary: Supreme Court of Florida _ No. SC14-1007 _ JOSEPH B. DOERR TRUST, et al., Petitioners, vs. CENTRAL FLORIDA EXPRESSWAY AUTHORITY, et al., Respondents. [November 5, 2015] 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 h..
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Supreme Court of Florida
____________
No. SC14-1007
____________
JOSEPH B. DOERR TRUST, et al.,
Petitioners,
vs.
CENTRAL FLORIDA EXPRESSWAY AUTHORITY, et al.,
Respondents.
[November 5, 2015]
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.
FACTS AND BACKGROUND INFORMATION
Introduction
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 by section 73.092, Florida
Statutes (2014),1 which provides, in pertinent part:
(1) Except 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.
(a) As used in this section, the term “benefits”
means the difference, exclusive of interest, between the
final judgment or settlement and the last written offer
made by the condemning authority before the defendant
hires an attorney. If no written offer is made by the
condemning authority before the defendant hires an
attorney, benefits must be measured from the first written
offer after the attorney is hired.
....
(b) The court may also consider nonmonetary
benefits obtained for the client through the efforts of the
attorney, to the extent such nonmonetary benefits are
specifically identified by the court and can, within a
reasonable degree of certainty, be quantified.
(c) Attorney’s fees based on benefits achieved
shall be awarded in accordance with the following
schedule:
1. Thirty-three percent of any benefit up to
$250,000; plus
2. Twenty-five percent of any portion of the
benefit between $250,000 and $1 million; plus
1. The statute has not been amended since the condemnation proceeding in
this case commenced in 2006.
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3. Twenty percent of any portion of the benefit
exceeding $1 million.
(2) In assessing attorney’s fees incurred in defeating an order
of taking, or for apportionment, or other supplemental proceedings,
when not otherwise provided for, the court shall consider:
(a) The novelty, difficulty, and importance of the
questions involved.
(b) The skill employed by the attorney in
conducting the cause.
(c) The amount of money involved.
(d) The responsibility incurred and fulfilled by the
attorney.
(e) The attorney’s time and labor reasonably
required adequately to represent the client in relation to
the benefits resulting to the client.
(f) The fee, or rate of fee, customarily charged for
legal services of a comparable or similar nature.
(g) Any attorney’s fee award made under
subsection (1).
(3) In determining the amount of attorney’s fees to be paid by
the petitioner under subsection (2), the court shall be guided by the
fees the defendant would ordinarily be expected to pay for these
services if the petitioner were not responsible for the payment of those
fees.
Tuscan Ridge I
The Orlando-Orange County Expressway Authority, now the Central Florida
Expressway Authority (the Authority),2 began a condemnation proceeding to
acquire 9.81 acres of land identified as Parcel 406. Orlando/Orange Cnty.
2. See ch. 2014-171, § 3, Laws of Fla. (amending section 348.753, Florida
Statutes, to redesignate the Orlando-Orange County Expressway Authority as the
Central Florida Expressway Authority).
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Expressway Auth. v. Tuscan Ridge, LLC (Tuscan Ridge I), 84 So. 3d 410, 411
(Fla. 5th DCA 2012). Parcel 406 was owned by Joseph B. Doerr, as Trustee of
The Joseph B. Doerr Revocable Living Trust dated 9/9/94 (Doerr).
Id. In
December 2005, Doerr conveyed fifteen percent of the Trust’s interest in the land
to Ministry Systems, Inc. (Ministry), but the transfer was not recorded until July
31, 2006.
Id.
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.3 In February
2008, a jury trial was held to determine the value of Parcel 406.
Id. at 412. The
jury found that the land had a fair market value of $5,744,830.
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
3. At the time of the presuit offer, a company named Florida Container
Services, Inc. (Florida Container), was leasing the property on a month-to-month
basis. Id. Any claims Florida Container pursued against the Authority were settled
at mediation, see
id. at 412, and that entity is not part of this case.
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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:
For the valuation proceedings, [the Landowners’ law firm] claimed it
was entitled to be paid for 2,700.3 attorney hours at the rate of $350 or
$375 per hour, and 460 paralegal hours at the rate of $120 per hour.
Nearly 2,000 of the attorney hours pertained to services performed by
[the] Landowners’ lead counsel . . . . The fees collected by [the
Authority’s] attorneys were similarly sizable. [n.5]
[N.5.] For the valuation proceedings alone, [the
Authority] incurred 2,888 attorney hours and 1,005
paralegal hours, for which it compensated its attorneys a
total of $672,000. It was also paid $150,000 for the cost
phase of the trial.
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
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application of the benefits achieved formula violated their constitutional right to
full compensation because the Authority caused excessive litigation. Id. at 418-19.
Tuscan Ridge II
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:
Early on in these proceedings, after the Order of Taking was entered
in August of 2006, [the Authority] made a decision to aggressively
litigate this case to the potential detriment of [the Landowners’] right
to full compensation. Previously, the parties had agreed as to the
highest and best use of the property, each side had a real estate
appraiser to value the property as though vacant, and had agreed to try
the case in early 2007. [The Authority] retained an economist, Henry
Fishkind. [The Authority] then submitted Fishkind’s report in late
November of 2006.
In his November 2006 report, Fishkind employed an economic
development approach to value the Doerr property based upon a
hypothetical redevelopment of the property, although the property had
been appraised by both parties’ property appraisers as though vacant.
Using the development approach, Fishkind made 16 assumptions
(e.g., the maximum square footage of buildings that could be built on
the Doerr property; the cost of constructing such buildings; rental
rates for buildings; vacancy rates for such buildings; insurance costs
for such buildings; utility costs for such buildings; and real estate
taxes for such buildings). The most important assumption was that
56,800 square feet of improvements was the maximum amount of
building space that could be built on the property. Fishkind relied on
other sources as well in making his assumptions which formed the
predicate underlying his analysis.
To competently represent [the Landowners], it was necessary
for [their] attorneys to determine and then rebut any faulty
assumptions of Fishkind. In order to do so it was necessary for [the
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Landowners] to retain additional expert witnesses and request further
services of previously retained experts to challenge Fishkind’s faulty
assumptions. Challenging Fishkind’s assumptions greatly increased
the number of hours [the Landowners’] attorneys spent on the case.
[The Landowners’] efforts to have Fishkind stricken as a
witness throughout the pre-trial period to avoid unnecessary excessive
litigation were vigorously contested by [the Authority]. Fishkind was
ultimately not allowed to testify before the jury due to a ruling made
by the Court.
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.4 The court explained:
Applying this Court’s conclusion that $350 an hour is a
reasonable rate to such a fee would mean that [the Landowners] could
only expend 650 attorney hours and no paralegal hours to defend its
claim against [the Authority], whose attorneys expended 2,888 hours,
and paralegal hours of 1005, for a total of 3,893 hours (for which they
were paid $672,000). [The Landowners] could not have litigated on
an equal footing with [the Authority] under the circumstances of this
4. The trial court stated that a second expert for the Authority did not offer
an opinion on this issue because his testimony was limited to “what the reasonable
number of hours were for a whole-take case in which one disregards the particular
facts of the litigation.”
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case, if [the Authority] was permitted to expend more than five (5)
times the number of hours than [the Landowners].
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:
remains valid and applicable to the facts and circumstances of this
case, based upon a property owner’s constitutional right to full
compensation. This is especially true since it was [the Authority] that
was primarily responsible for the excessive litigation because of its
decision to use Fishkind.
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
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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:
IN AN EMINENT DOMAIN PROCEEDING, WHEN THE
CONDEMNING AUTHORITY ENGAGES IN LITIGATION
TACTICS CAUSING EXCESSIVE LITIGATION AND THE
APPLICATION OF THE STATUTORY FEE FORMULA RESULTS
IN A FEE THAT COMPENSATES THE LANDOWNER’S
ATTORNEYS AT A LOWER-THAN-MARKET FEE, WHEN
MEASURED BY THE TIME INVOLVED, IS THE STATUTORY
FEE DEEMED UNCONSTITUTIONAL AS APPLIED, ENTITLING
THE LANDOWNER TO PURSUE A FEE UNDER SECTION
73.092(2)?
Id. For purposes of our review, we rephrase the question as follows:
IN AN EMINENT DOMAIN PROCEEDING, WHEN THE
CONDEMNING AUTHORITY ENGAGES IN TACTICS THAT
CAUSE EXCESSIVE LITIGATION, IS THE BENEFITS
ACHIEVED FORMULA IN SECTION 73.092(1), FLORIDA
STATUTES, UNCONSTITUTIONAL AS APPLIED TO
CALCULATE ATTORNEY’S FEES FOR THE HOURS
INCURRED IN DEFENDING AGAINST THE EXCESSIVE
LITIGATION?
ANALYSIS
Standard of Review
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).
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However, statutes carry a presumption of constitutionality and must be construed
whenever possible to achieve a constitutional outcome. Crist v. Fla. Ass’n of
Criminal Def. Lawyers, 978 So. 2d 134, 139 (Fla. 2008).
Eminent Domain and Attorney’s Fees
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.”).5
5. The right of private property owners to full compensation in eminent
domain proceedings under the Florida Constitution is more expansive than that of
the Fifth Amendment to the United States Constitution, which provides that private
property shall not be taken for a public use “without just compensation.” U.S.
Const. amend V. The Supreme Court has held that “just” compensation under the
Fifth Amendment does not include attorney’s fees. United States v. Bodcaw Co.,
440 U.S. 202, 203 (1979); Dohany v. Rogers,
281 U.S. 362, 368 (1930).
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In Florida eminent domain proceedings, the goal is to render the private property
owner as whole as possible because:
the owner of private property sought to be condemned is forced into
court by one to whom he owes no obligation, [and] it cannot be said
that he has received “just compensation” for his property if he is
compelled to pay out of his own pocket the expenses of establishing
the fair value of the property, which expenses in some cases could
conceivably exceed such value. The plight of the land owner in this
situation is well stated by the New York court in [In] Re Water
Supply in City of New York, 125 A.D. 219,
109 N.Y.S. 652,
654[-55 (N.Y. App. Div. 1908)], as follows:
He does not want to sell. The property is taken
from him through the exertion of the high powers of the
[state], and the spirit of the Constitution clearly requires
that he shall not be thus compelled to part with what
belongs to him without the payment, not alone of the
abstract value of the property, but of all the necessary
expenses incurred in fixing that value. This would seem
to be dictated by sound morals, as well as by the spirit of
the Constitution; and it will not be presumed that the
Legislature has intended to deprive the owner of the
property of the full protection which belongs to him as a
matter of right.
Dade Cnty. v. Brigham, 47 So. 2d 602, 604-05 (Fla. 1950) (emphasis supplied).
Section 73.092
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
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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:
[T]he legislature essentially decided that a percentage of the benefits
is a reasonable fee [in eminent domain cases], and in Schick[ v.
Department of Agriculture and Consumer Services, 599 So. 2d 641
(Fla. 1992)], the supreme court stated that the legislature can enact
attorney’s fees provisions which “it deems will result in a reasonable
award.” Id. at 644.
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
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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.
Excessive Litigation in Eminent Domain Proceedings
We have previously emphasized the importance of fair play in eminent
domain proceedings because of the inherent disadvantage to the property owner:
It must be borne in mind that in a condemnation proceeding the
property of the land owner is subject to taking by the condemnor
without the owner’s consent. The condemnee is a party through no
fault or volition of his own. Our Declaration of Rights, Section 12,
Constitution of the State of Florida, F.S.A., makes it incumbent upon
the condemnor to award “just” compensation for the taking. In view
of this constitutional mandate, the awarding of compensation which is
“just” should be the care of the condemning authority as well as that
of the party whose land is being taken.
Unlike litigation between private parties condemnation by any
governmental authority should not be a matter of “dog eat dog” or
“win at any cost.” Such attitude and procedure would be decidedly
unfair to the property owner. He would be at a disadvantage in every
instance for the reason that the government has unlimited resources
created by its inexhaustible power of taxation. Moreover it should be
remembered that the condemnee is himself a taxpayer and as such
contributes to the government’s “unlimited resources.”
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.
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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 of this case, it would be unreasonable to limit the
Landowners to the capped fee generated by the formula in section 73.092(1).
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,6 possess potentially unlimited resources
to allocate to abusive litigation and legal representation. See generally Shell, 135
So. 2d at 861. Further, it is important to note that section 73.092 applies only to
attorney’s fees for private property owners. Thus, attorneys for government
entities can still bill a substantial number of hours and charge substantial fees
without the risk of having their fees reduced in any way or subject to a statutory
cap or percentage. We conclude that where private property owners are forced to
defend against excessive litigation caused by a condemning authority, a mandatory
statutory formula that generates a fee award below that which is considered
reasonable denies those property owners their right to the full compensation that is
guaranteed by the Florida Constitution. Art. X, § 6(a), Fla. Const.; Tosohatchee,
6. The Authority is a State agency. See § 348.753(1), Fla. Stat. (2014).
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265 So. 2d at 684-85;
JEA, 978 So. 2d at 845. Accordingly, without a remedy to
protect private property owners under such circumstances, section 73.092(1) would
be unconstitutional as applied.
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
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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.7 The trial
courts of this state are in the best position to determine, based on evidence
presented and legal experience, whether excessive litigation activity has occurred.
Application to This Case
Although the attorneys for the Landowners unquestionably expended a
significant number of hours defending against certain litigation tactics, it does not
appear that every action taken by the Authority during this entire eminent domain
proceeding caused excessive litigation. To the contrary, the trial court referenced
two tactics utilized by the Authority, both of which occurred during the case
proceedings: (1) the use of Dr. Fishkind, and related evidence, and (2) prolonged
deposition times of the Landowners’ experts. Nevertheless, the trial court did not
attempt to identify the number of hours that the attorneys for the Landowners
expended in defending against that portion or those actions that would be in the
category of excessive litigation that resulted from the excessive tactics. There was
no need for the trial judge to do so at that time because the limits established by
this decision were not in place. The trial court concluded that section 73.092(1)
7. This definition is sufficiently broad to be applicable to other areas of the
law.
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was unconstitutional as applied and did not employ the benefits achieved formula
to calculate any portion of the attorney’s fee award. As a result, 2,200 attorney
hours and 400 paralegal hours were multiplied by reasonable hourly rates under
section 73.092(2) to obtain an award of $816,000.
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.
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Sanctions
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 or was
motivated by improper considerations. Therefore, we reject the contention that the
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Landowners were required to pursue sanctions in lieu of challenging the
constitutionality of section 73.092(1) as applied where the Authority was
responsible for excessive litigation.
CONCLUSION
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.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
Application for Review of the Decision of the District Court of Appeal - Certified
Great Public Importance
Fifth District - Case No. 5D13-1164
(Orange County)
Craig B. Willis and Joe W. Fixel of Fixel & Willis, Tallahassee, Florida; and
Major Best Harding of Ausley & McMullen, P.A., Tallahassee, Florida,
for Petitioners
Beverly A. Pohl of Broad and Cassel, Fort Lauderdale, Florida; Richard Nash
Milian and Edgar Lopez of Broad and Cassel, Orlando, Florida,
for Respondents
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