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Berlin v. State of Florida Department of Transportation

Florida Court of Appeals, Fourth District

January 8, 2020

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
v.
STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Janet Carney Croom, Judge; L.T. Case No. 562016CA000612.

          Michael J. Tomkiewicz, Gino A. Luzietti and Ashley H. Lukis of GrayRobinson, P.A., Tallahassee, for appellants.

          Marc Peoples, Assistant General Counsel, Department of Transportation, Tallahassee, for appellee.

          WARNER, J.

         After 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.

         The 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.

         After 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) provide:

(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.

         At the 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 appeal.

         Appellants contend that the court erred by striking their motion for attorneys' fees. We agree. Florida Rule ...


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