B. Adam BERLIN, individually and as trustee of the B. Adam Berlin Revocable Trust dated April 11, 2007, and as trustee of the B. Adam Berlin 2009 Irrevocable Trust dated December 29, 2009, Charles L. LaFevers, Jr., individually and as trustee of the Charles L. LaFevers, Jr. Trust, dated January 6, 1995, Susan E. Berlin, individually and as trustee of the Susan Berlin Green 2009 Irrevocable Trust dated December 29, 2009, Appellants,
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Janet Carney Croom, Judge; L.T. Case No.
J. Tomkiewicz, Gino A. Luzietti and Ashley H. Lukis of
GrayRobinson, P.A., Tallahassee, for appellants.
Peoples, Assistant General Counsel, Department of
Transportation, Tallahassee, for appellee.
a stipulated final judgment was entered in a condemnation
case, appellants filed a claim for attorneys fees. The
appellee Department of Transportation moved to strike the
claim on grounds it failed to meet the requirements of
section 73.092(1)(b), Florida Statutes (2017). The trial
court agreed and struck the claim, prompting this appeal.
Because the motion was legally sufficient, we reverse.
DOT sought to condemn a portion of appellants property for a
road widening project along Kings Highway in St. Lucie
County. The project included construction of a retention pond
and truck turnaround "jug handle," which would
allow large trucks to make U-turns. This would cut off access
to Kings Highway from the property. DOT made a formal offer
to appellants which included an amount for taking the jug
handle. Appellants believed that the loss of access would
cause millions of dollars in severance damage to the
remainder of their property, making it less valuable for
commercial development. The DOT appraisals, however, did not
recognize any severance damages. DOT filed a condemnation
action and obtained a quick taking but the amount of the good
faith deposit of $208,000 did not include severance damages.
Appellants produced an appraisal showing millions of dollars
in severance damages, and the parties scheduled a mediation.
Minutes before the mediation, the DOT presented a revised
project which eliminated the jug handle. Mediation proceeded
and the DOT representative asked whether the removal of the
truck turnaround would eliminate the multi-million dollar
severance claim. Appellants counsel agreed that it would,
and they would drop their severance damage claim if the truck
turnaround were removed. The mediation ended. Subsequently,
the DOT revised its right-of-way map to eliminate the jug
handle. At a second mediation, the parties agreed to
$441,349.20 as full compensation for the taking. Removal of
the truck turnaround from the DOT plan was an express
condition of settlement. Appellants reserved the right to
seek attorneys fees based upon non-monetary benefits.
the entry of a final judgment, which incorporated the
settlement reached at mediation, appellants filed a motion
seeking attorneys fees pursuant to section 73.092(1)(b),
Florida Statutes (2017). The DOT filed a motion to strike
appellants motion to tax attorneys fees and costs on
grounds it failed to meet the requirements of section
73.092(1)(b), Florida Statutes, because the efforts of the
attorneys had not produced the nonmonetary benefit of
eliminating the jug handle; rather, the change was due solely
to DOTs efforts. Section 73.092(1) and subsection (b)
(1) Except as otherwise provided in this section and s.
73.015, the court, in eminent domain proceedings, shall award
attorneys fees based solely on the benefits achieved for the
(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 ...