Agenda 05/23/2017 Item #16K10 Proposed Agenda Changes
Board of County Commissioners Meeting
May 23, 2017
Withdraw Item 16A19: Recommendation to approve an Agreement for Special Magistrate
Services for Code Enforcement with the law firm of Patrick Neale&Associates. (Staff's request)
Move Item 17B to Item 9A: This item requires that ex parte disclosure be provided by
Commission members.Should a hearing be held on this item,all participants are required to be
sworn in. Recommendation to approve Petition VAC-P120170000440 to disclaim, renounce and
vacate the County and the public interest in a portion of the 60-foot wide road right-of-way known
as 25th Avenue Northwest,approximately 665 feet in length, being a part of Tracts 1,2&3,Golden
Gate Estates Unit No.21, Plat Book 7, Page 81 of the Public Records of Collier County, Florida.The
subject road right-of-way is located west of 8th Street Northwest,just north of Immokalee Road in
Section 21,Township 48 South, Range 27 East,Collier County,Florida. (Commissioner McDaniel's
request)
Item 16K10: Recommendation to authorize the County Attorney to
pursue an Appeal in the Eleventh Circuit Court of Appeals in the
litigation styled Collier County v. Holiday CVS, LLC and RTG,
LLC, against one party, Realty Trust Group, LLC, and to settle the
litigation with Holiday CVS, LLC.
The County Attorney requests two changes be made to the Settlement Agreement with CVS on Item
16K10. Pursuant to agreement of the parties, the language "Underlying Condemnation Action"
appears in two places in Paragraph 2 of the Settlement Agreement, and it should be removed in both
places.
2. Mutual Release. The Parties shall mutually release each other and their respective successors,
assigns,servants, affiliates, subsidiaries, divisions,parents,predecessors,employees, agents, independent
contractors, consultants, affiliates, officers,directors,members, attorneys, and all other persons,
partnerships,firms,corporations or legal entities of whatsoever kind or nature in privity therewith,who
are or might be liable in any way,from any and all claims,actions,causes of action, legal, equitable or
administrative proceedings, demands, rights, damages, losses,relief of whatsoever kind or nature,costs,
expenses,fees and compensation whatsoever,which the Parties now have or which may hereafter accrue
on account of or in any way growing out of any and all known and unknown, foreseen and unforeseen,
developed and undeveloped damage(s)or loss(es)and the consequences thereof resulting from the
•. . - . . •-• • - ':•,Action,Fee Claim and Appeal,from the beginning of the world to the
date this agreement is last signed including,but not limited to,all claims which were asserted or could
have been asserted, and all relief sought or that could have been sought in the Action. In making this
release,the Parties agree they had the advice of counsel in so doing, and do so freely and voluntarily. It is
also understood that the settlement terms under this Agreement are not construed as an admission of
liability,but as a compromise of the . •:- - . • •- •=•,Action,Fee Claim and Appeal.
5/25/2017 8:56 AM
05/23/2017
EXECUTIVE SUMMARY
Recommendation to authorize the County Attorney to pursue an Appeal in the Eleventh Circuit
Court of Appeals in the litigation styled Collier County v. Holiday CVS, LLC and RTG, LLC,
against one party, Realty Trust Group, LLC, and to settle the litigation with Holiday CVS, LLC.
OBJECTIVE: To pursue an appeal in the Eleventh Circuit Court of Appeals against RTG, LLC and
approve and authorize the Chairman to execute a Settlement Agreement with Holiday CVS, LLC.
CONSIDERATIONS: Collier County began intersection improvements at US 41 and Collier Blvd. (CR
951) in January 2013. As part of the project, the County commenced an eminent domain proceeding
against CVS and RTG to condemn certain property owned by RTG and leased by CVS. In response, CVS
requested full and just compensation and business damages and/or relocation damages. CVS terminated
its lease with the landlord, RTG, based on the loss of 11 parking spaces, despite the County’s offer to
provide 6 additional parking spaces, but continued operating on the property as a month-to-month tenant.
RTG also claimed business and severance damages. The Court granted the taking, and the County paid
what it believed to be full compensation.
Following the taking, a jury trial was held in January 2014 to determine the amount of the business and
severance damages for CVS and RTG. On January 10, 2014, the jury awarded CVS $1,933,000 in lost
future business income, and RTG was awarded $3,100,000 for loss of future rental income from CVS . As
a direct result of the verdict, pursuant to Florida statute, the Court later ultimately awarded in excess of
$1.5 million for CVS’s and RTG’s attorneys’ fees, expert witness fees and costs.
On January 28, 2014, I brought an Executive Summary to the Board recommending that the County
accept the jury verdict and not appeal. During my presentation, I stated to the Board as follows:
“It is my recommendation that the County not appeal…If indeed they stay in business, I’ll
be coming back here with some different proposals….”
Despite “terminating” the lease and claiming that CVS would be closing on January 1, 2015, CVS
remains in business as a tenant of RTG.
On October 25, 2016 (Agenda item 12A), the Board provided direction to the County Attorney to pursue
litigation to seek repayment of a jury award, attorneys’ fees, expert witness fees and costs in excess of
$6.5 million from Holiday CVS, LLC a corporate subsidiary of CVS Health Corp. (“CVS”) and Realty
Trust Group, LLC (“RTG”). Collier County filed a Complaint in the Collier Circuit Court against both
entities on the theory of unjust enrichment and seeking to recover the total amount of damages awarded to
CVS and RTG. CVS and RTG had the case transferred to the Federal District in Ft. Myers, where thei r
Motion to Dismiss Collier County’s Complaint was granted by the Federal Court Judge on April 10,
2017. A copy of the Order dismissing the case is attached.
The basis for the dismissal was the Court’s finding that this was a collateral attack on a jury verdict. The
County’s position is that this is not an attack on a jury award, but a separate action based on fairness; that
the landlord was now in essence getting double rent and that CVS was receiving profits after they had
been compensated for such profits as lost.
At this time, Collier County’s only remedy to challenge the Order granting the Motion to Dismiss is with
an appeal to the Eleventh Circuit Court of Appeals.
The Court found that since the County’s claim started with the original eminent doma in action, both CVS
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and RTG are entitled to supplemental damages in defending against their jury award, which is largely
attorney fees. CVS has agreed to waive its claim for attorneys’ fees in exchange for the County not
pursuing an appeal and otherwise dropping this matter. RTG is not willing to do this. Both CVS and RTG
are claiming well in excess of $100,000 in attorneys’ fees, whose reasonableness would be determined by
the Court.
Historically, only about 15% of civil cases are reversed by the Eleventh Circuit Court of Appeals.
It has been my observation over many years (and I started practicing in New York as an eminent domain
attorney) that claims by property owners can be both inflated and imaginative. In Florida, the condemning
authority pays for all of the property owner’s costs in an eminent domain proceeding, including legal fees,
appraisals, and other expert costs. Accordingly, it is prohibitively expensive to take these cases to trial,
and settlements tend to be weighed favorably to the property owner.
It is the County Attorney’s opinion that although it is a long-shot, getting a Court to recognize that unjust
enrichment applies in an eminent domain case will benefit the County not only in this case, but in many
of our condemnation cases for years to come. Since RTG is insisting on its attorneys’ fees whether or not
the County pursues an appeal, and since RTG received 62% of the jury’s award, it is the County
Attorney’s recommendation to pursue an appeal in the Eleventh Circuit Court of Appeals against RTG
alone. If the County is unsuccessful, any award of attorneys’ fees will be substantially less than if the
appeal was also brought against CVS, and if the appeal is successful, the County should not only recoup
the majority of its total award, but will have a stronger basis to negotiate against certain claims made by a
property owner in the future.
FISCAL IMPACT: Defendant RTG’s claim for attorneys’ fees at this time are $148,000, which claim
will increase with an appeal. The Court would need to later rule on the reasonableness of the amount.
GROWTH MANAGEMENT IMPACT: None.
LEGAL CONSIDERATIONS: This item has been prepared by the County Attorney. It is approved as
to form and legality and requires majority vote for approval. -JAK
RECOMMENDATION: That the Board of County Commissioners authorizes the County Attorney to
pursue an Appeal in the Eleventh Circuit Court of Appeals in the litigation styled Collier County v.
Holiday CVS, LLC and RTG, LLC, against one party, Realty Trust Group, LLC, and to approve and
authorize the Chairman to execute the Settlement Agreement with Holiday CVS, LLC.
Prepared by: Jeffrey A. Klatzkow, County Attorney
ATTACHMENT(S)
1. Order dated 4-10-17 (PDF)
2. CVS Settlement Agreement (PDF)
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COLLIER COUNTY
Board of County Commissioners
Item Number: 16.K.10
Doc ID: 3226
Item Summary: Recommendation to authorize the County Attorney to pursue an Appeal in the
Eleventh Circuit Court of Appeals in the litigation styled Collier County v. Holiday CVS, LLC and RTG,
LLC, against one party, Realty Trust Group, LLC, and to settle the litigation with Holiday CVS, LLC.
Meeting Date: 05/23/2017
Prepared by:
Title: Legal Assistant/Paralegal – County Attorney's Office
Name: Virginia Neet
05/17/2017 2:54 PM
Submitted by:
Title: County Attorney – County Attorney's Office
Name: Jeffrey A. Klatzkow
05/17/2017 2:54 PM
Approved By:
Review:
Office of Management and Budget Valerie Fleming Level 3 OMB Gatekeeper Review Completed 05/17/2017 2:57 PM
Budget and Management Office Mark Isackson Additional Reviewer Completed 05/17/2017 3:06 PM
County Attorney's Office Jeffrey A. Klatzkow Level 3 County Attorney's Office Review Completed 05/17/2017 3:21 PM
County Manager's Office Leo E. Ochs Level 4 County Manager Review Completed 05/17/2017 3:22 PM
Board of County Commissioners MaryJo Brock Meeting Pending 05/23/2017 9:00 AM
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Packet Pg. 1106 Attachment: Order dated 4-10-17 (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1107 Attachment: Order dated 4-10-17 (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1108 Attachment: Order dated 4-10-17 (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1109 Attachment: Order dated 4-10-17 (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1110 Attachment: Order dated 4-10-17 (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1111 Attachment: Order dated 4-10-17 (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1112 Attachment: CVS Settlement Agreement (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1113 Attachment: CVS Settlement Agreement (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1114 Attachment: CVS Settlement Agreement (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)
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Packet Pg. 1115 Attachment: CVS Settlement Agreement (3226 : Appeal - Realty Trust Group, LLC/Settlement - CVS, LLC)