B. ADAM BERLIN, individually and as trustee of the B. Adam BerlinRevocable Trust dated April 11, 2007, and as trustee of the B. AdamBerlin 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 andas trustee of the Susan Berlin Green 2009 Irrevocable Trust dated
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Nineteenth Judicial Circuit,
St. Lucie County; Janet Carney Croom, Judge; L.T. Case No.
Michael 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.
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.
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.
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
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 non-monetary benefit of
eliminating the jug handle; rather, the change was due solely
to DOT's 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 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.
hearing on the motion to strike, the DOT argued that
appellants' attorney had not requested the removal of the
jug handle and that the change was solely the result of
efforts by the DOT. Appellants objected that a motion to
strike was procedurally improper. Moreover, appellants argued
that an evidentiary hearing was required because of factual
issues. Counsel also explained the efforts that they had made
to increase the compensation, including obtaining the
non-monetary benefit of eliminating the jug handle.
Nevertheless, the court granted the motion to strike,
determining that the appellants had failed to meet the
requirements of the statute. Appellants have filed this
contend that the court erred by striking their motion for
attorneys' fees. We agree. Florida Rule ...