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Agenda 06/24/2014 Item #16K26/24/2014 16.K.2. EXECUTIVE SUMMARY Recommendation to approve three payments of fees and costs claimed by the property owners' attorneys and expert witnesses in connection with the taking of Parcels 116FEE, 116TCE1, 116TCE2, and 116TCE3 in the lawsuit styled Collier County v RTG, LLC, a Nebraska limited liability company, et al., Case No. 2013 -CA -259 (US -41 /Collier Boulevard Intersection Improvement Project 960116). (Fiscal Impact: $571,207). OBJECTIVE: That the Board approves the payment of attorney fees and expert witness costs claimed under the provisions of Sections 73.091 and 73.092, Florida Statutes, wherein the condemning authority is responsible for payment of the property owners' attorney fees and expert witness costs. CONSIDERATIONS: Collier County, under its authority to take private property for public purposes, pursuant to Chapters 73, 74 and 127, Florida Statutes, acquired Parcels l 16FEE, l 16TCE1, I I6TCE2, and 116TCE3 in the eminent domain lawsuit styled Collier County v. RTG, LLC, a Nebraska limited liability company, et al., Case No. 2013 -CA -259, in order to construct at -grade improvements to the intersection of Collier Boulevard and US -41. Attachments to this executive summary (Parcel Sketches and metes and bounds legal descriptions with sketches) illustrate the parcels of right -of -way and the temporary construction easements taken from the land owners, RTG, LLC (RTG) and ABC Liquors, Inc. (ABC), upon which Holiday CVS, LLC (CVS) has been operating a CVS drugstore for the past 8 years, and qualifying it therefore to make a claim for recovery of business damages from Collier County, along with the property owners' claims to receive full compensation as determined by a 12- person jury. It is well established law in the state of Florida that the condemning authority's constitutional mandate to fully compensate the owner for the losses sustained as a result of the taking of private property for public purposes include those fees and costs incurred in the defense of the proceedings. Copies of Sections 73.091 and 73.092, Florida Statutes are attached for reference along with the1950 landmark case Dade County v. Brigham, 47 So.2d 602 (Fla. 1950) concerning the condemning authority's obligation to pay the owners' fees and costs. After the week -long trial held this past January, Collier County was presented with invoices for expert witness fees and costs, along with attorney fees and costs for supplemental proceedings as defined under Section 73.092 (2) totaling $582,470.39. Through continued negotiations and a mediation ordered by the circuit court and held on May 27, 2014, the fees and costs were reduced to $542,099. The invoices and statements from the expert witnesses and the attorneys on the case are available for review by clicking on the following link: linn:/r�N- n,w.colIiemov. net' ftr)/ A ^endaJune24 /GrowthXfizmt/Affidav tslnvoi_ c_ es &Staementsoffees &Costs.pdf. Subsequent to the mediation, additional invoices and statements were received from Buell and Elligett (attorneys for CVS), in the amount of $23,490, Calhoun, Collister and Parham, Inc. (real estate appraisers for CVS), in the amount of $3,518 and Boyd, Schmidt, and Brannum (appraiser for RTG) in the amount of $2,100, related to the apportionment proceeding between RTG, LLC (the property owner /record titleholder) and CVS (the business proprietor holding a long term lease and a substantial interest in the real property taken by the County). A hearing on the apportionment between the owner and tenant was scheduled in the circuit court before Judge Brodie on May 30, 2014, but was avoided (along with the attendant costs to Collier County) as a result of a settlement reached by the parties. Hearings on the fees and costs incurred by the RTG, LLC, and by CVS, and by ABC Liquors, Inc., are scheduled under court order for this coming June 266' and 27"'. With the Board's approval of these Mediated Settlement Agreements the hearings may be cancelled and further costs avoided. It is important to point out that Collier County (the condemning authority) is responsible for payment of the expert Packet Page -2014- 6/24/2014 16.K.2. witnesses' legal representation at such cost hearings, as well as the payment of any witnesses that the expert or attorney present to the court in support of their claims. In addition, the County is, of course, responsible for the payment of its own rebuttal witnesses at such proceedings. FISCAL IMPACT: Funds in the amount of $571,207 are available in transportation impact fees and /or gas taxes. Project: US -41 /Collier Boulevard Intersection Improvement. The acquisition of this right -of- way will not add any cost to the annual operating and maintenance budget as the easement area will not be maintained before the Project is constructed. Operating and maintenance costs were considered when the construction contract was brought before the Board on October 8, 2013. GROWTH MANAGEMENT IMPACT: None. LEGAL CONSIDERATIONS: This item has been approved as to form and legality and requires a majority vote for Board approval. - ERP RECOMMENDATION: That the Board of County Commissioners of Collier County, Florida: l) Approves the three (3) Mediated Settlement Agreements attached hereto; 2) Authorizes the entry into the circuit court of an Agreed Order regarding payment of the referenced fees and costs; and 3) Authorizes the Clerk of Court to make payment upon receipt of the Order. PREPARED BY: Emily R. Pepin, Assistant County Attorney Attachments: l) Mediated Settlement Agreements (3) 2) Case Summary (Dade County v. Brigham) 3) Florida Statutes Sections 73.091, 73.092 and Chapter 127 Packet Page -2015- 6/24/2014 16.K.2. COLLIER COUNTY Board of County Commissioners Item Number: 16.16.K.16.K.2. Item Summary: Recommendation to approve three payments of fees and costs claimed by the property owners' attorneys and expert witnesses in connection with the taking of Parcels 116FEE, 116TCE1, 116TCE2, and 116TCE3 in the lawsuit styled Collier County v. RTG, LLC, a Nebraska limited liability company, et al., Case No. 2013 -CA -259 (US -41 /Collier Boulevard Intersection Improvement Project #60116). (Fiscal Impact: $570,207). Meeting Date: 6/24/2014 Prepared By Name: CrotteauKathynell Title: Legal Secretary, CAO Office Administration 6/6/2014 2:18:36 PM Approved By Name: AhmadJay Title: Director - Transportation Engineering, Transportation Engineering & Construction Management Date: 6/9/2014 8:23:25 AM Name: HendricksKevin Title: Manager - Right of Way, Transportation Engineering & Construction Management Date: 6/9/2014 11:13:40 AM Name: TaylorLisa Title: Management/Budget Analyst, Transportation Administration Date: 6/11 /2014 4:31:43 PM Name: ShueGene Title: Director - Operations Support, Transportation Administration Date: 6/12/2014 12:13:49 PM Name: KearnsAllison Title: Manager Financial & Operational Support, Transportation Administration Date: 6/12/2014 3:58:15 PM Name: PepinEmily Packet Page -2016- 6/24/2014 16.K.2. Title: Assistant County Attorney, CAO Litigation Date: 6/12/2014 4:29:34 PM Name: MarcellaJeanne Title: Executive Secretary, Transportation Planning Date: 6/12/2014 4:29:41 PM Name: KlatzkowJeff Title: County Attorney, Date: 6/12/2014 5:06:11 PM Name: UsherSusan Title: Management/Budget Analyst, Senior, Office of Management & Budget Date: 6/16/2014 5:34:54 PM Name: OchsLeo Title: County Manager, County Managers Office Date: 6/17/2014 11:09:51 AM Packet Page -2017- IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL DIVISION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, V. RTG, LLC, et al. 6/24/2014 16.K.2. Petitioner, Case No.: 13 -CA -259 Parcel No.: 116FEE, 116TCE1, 116TCE2, 116TCE3 Respondents. MEDIATED SETTLEMENT AGREEMENT At the Mediation Conference held on May 27, 2014, the parties reached the following Settlement Agreement: 1. Petitioner will pay to the trust account of counsel for Respondent, RTG, LLC, the sum of $32,000.00 in full settlement and satisfaction of all attorney's fees and attorney's litigation costs related to all supplemental proceedings in this case. 2. In addition to the above- referenced attorney's fees and attorney's litigation costs, Petitioner will pay to the trust account of Respondent's attorney the sum of $185,000.00 in full settlement and satisfaction of all expert witness costs incurred by Respondent in this case, excluding any additional appraisal costs related to apportionment from Boyd, Schmidt & Brannum after the date of this Agreement. 3. This Settlement Agreement is subject to and conditioned upon final approval by the Board of County Commissioners of Collier County. 4. Counsel for Petitioner and Respondent will jointly submit to the Court a mutually approved Order containing the terms and conditions of this Settlement Agreement within ten days following the final approval of this Settlement Agreement by the Collier County Board of County Commissioners. Packet Page -2018- 6/24/2014 16.K.2. 5. This Settlement Agreement, dated May 27, 2014, contains all of the agreements of the parties. Kevin. HeWaggeron s, Right o Way Acquisition behalf o Petitioner, Collier County Emily R Pep Esq. Attorney for Petitioner William B. Smith, sq. Circuit Court Mediator D. Tobyn DeYo g, Esq., on behalf of R pondent, RT , LLC D. Tobyn DeY Attorney for P Packet Page -2019- IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL DIVISION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, v. RTG, LLC, et al. 6/24/2014 16.K.2. Petitioner, Case No.: 13 -CA -259 Parcel No.: 116FEE, 116TCE1, 116TCE2, 116TCE3 Respondents. MEDIATED SETTLEMENT AGREEMENT At the Mediation Conference held on May 27, 2014, the parties reached the following Settlement Agreement: 1. Petitioner will pay to the trust account of counsel for Respondent, Holiday CVS, LLC the following sums in full settlement and satisfaction of all experts costs incurred by Respondent in this case, excluding costs related to apportionment: Morgenstern Phifer & Messina, P.A.- $71,250.00 Mesimer and Associates- $132,500.00 Calhoun, Collister & Parham- $89,391.00 Realmark Research- $10,000.00 Buell & Elligett litigation costs- $14,698.00 The above - referenced costs do not include any attorney's fees related to supplemental proceedings in this case. 2. This Settlement Agreement is subject to and conditioned upon fmal approval by the Board of County Commissioners of Collier County. 3. Counsel for Petitioner and Respondent will jointly submit to the Court a mutually approved Order containing the terms and conditions of this Settlement Agreement within ten days following the final approval of this Settlement Agreement by the Collier County Board of County Commissioners. Packet Page -2020- 6/24/2014 16.K.2. 4. This Settlement Agreement, dated May 27, 2014, contains all of the agreements of * parties. Kevin E. Henpicks, Right of Way Acquisition Manager,on behalf of LLC Petitioner, Collier County y mily R. Pe Esq. Attorney for Petitioner William B. Smith, Esq. Circuit Court Mediator Mark P. Buell, Es 4., on behalf of Respondent, Holiday CVS, � X/W/ Mark P. Buell, Esq. Attorney for Respondent, Holiday CVS, LLC Packet Page -2021- IN THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR COLLIER COUNTY, FLORIDA CIRCUIT CIVIL DIVISION COLLIER COUNTY, FLORIDA, a political subdivision of the State of Florida, V. RTG, LLC, et al. 6/24/2014 16.K.2. Petitioner, Case No.: 13 -CA -259 Parcel No.: I I6FEE, I I6TCE1, 116TCE2, 116TCE3 Respondents. MEDIATED SETTLEMENT AGREEMENT At the Mediation Conference held on May 27, 2014, the parties reached the following Settlement Agreement: 1. Petitioner will pay to the trust account of counsel for Respondent, ABC Liquors, Inc., the sum of $ U.100, bo in full settlement and satisfaction of all attorney's fees, including fees related to monetary benefits, non - monetary benefits and supplemental proceedings, related to ABC Liquors, Inc.'s apportionment claim in the above - referenced parcels in this case. 2. This Settlement Agreement is subject to and conditioned upon final approval by the Board of County Commissioners of Collier County. 3. Counsel for Petitioner and Respondent will jointly submit to the Court a mutually approved Order containing the terms and conditions of this Settlement Agreement within ten days following the final approval of this Settlement Agreement by the Collier County Board of County Commissioners. Packet Page -2022- 6/24/2014 16.K.2. 4. This Settlement Agreement, dated May 27, 2014, contains all of the agreements of Petitioner, Collier County i Emily R. PejAn, Esq. Attorney for Pethioner William B. Smith, Esq. Circuit Court Mediator Chri phe . Conley,`�sq., on behalf of Respondent, ABC Liquors, Inc. Chn per 106 , Attorney for Respon en�A��Liquors Inc. Packet Page -2023- A Ilia Caution As of: June 6, 2014 1:46 PM EDT 6/24/2014 16.K.2. Dade County v. Brigham Supreme Court of Florida March 14, 1950; On Rehearing July 25, 1950 [NO DOCKET NUMBER] Reporter: 47 So. 2d 602; 1950 Fla. LEXIS 1049; 18 A.L.R.2d 1221 DADE COUNTY v. BRIGHAM et al. Core Terms costs, expert witness, general rule, proceedings, sound judicial discretion, condemnation proceeding, trial judge, expenses, services, witnesses', condemned, charges Case Summary Procedural Posture Plaintiff county filed a petition for a writ of certiorari for review of an order of the trial court which ordered plaintiff to pay the fees of expert witnesses who testified for defendant land owners in a condemnation proceeding. Overview Plaintiff county was ordered to pay the fees of expert witnesses who testified for defendant land owners in a condemnation proceeding. Plaintiff filed a petition for writ of certiorari. The court denied the petition, holding that the phrase "all costs of proceedings" in Fla. Stat. Ann. § 73.16 must be held, in a proper case, to include fees of expert witnesses for defendants. The court held that the allowance or disallowance of such fees should be a matter for the trial judge to decide in the exercise of sound judicial discretion. Outcome The court denied plaintiff county's petition for a writ of certiorari, holding that the trial court properly ordered plaintiff to pay the fees of defendant land owners' expert witnesses because they were a reasonable cost associated with the condemnation proceedings. LexisNexis® Headnotes Governments > Courts > Judicial Precedent HNI To recite and approve a general rule in one case is not the equivalent of establishing it as an unyielding, inflexible guide in every case. Governments > Courts > Judicial Precedent HN2 An opinion emanating from the court must be construed in the light of the facts and circumstances of the case which was then before the court for decision. Real Property Law > Eminent Domain Proceedings > General Overview Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > General Overview Real Property Law > Eminent Domain Proceedings > Elements > Just Compensation Real Property Law > ... > Elements > Just Compensation > Property Valuation HN3 Freedom to own and hold property is a valued and guarded right under the United States government. Full compensation is guaranteed by the United States Constitution to those whose property is divested from them by eminent domain. Civil Procedure > Judicial Officers > Judges > General Overview Civil Procedure > Judicial Officers > Judges > Discretionary Powers Real Property Law > Eminent Domain Proceedings > General Overview Emily Pepin Packet Page -2024- 6/24/2014 16.K.2. Page 2 of 4 47 So. 2d 602, *602; 1950 Fla. LEXIS 1049, * *1049 HN4 Fla. Stat. Ann. § 73.16, which provides that all costs of proceedings shall be paid by the petitioner, including a reasonable attorney's fee, should be construed in the light of Section 12 of the Florida Declaration of Rights which declares that private property shall not be taken without just compensation. When so construed the language "all costs of proceedings' in Fla. Stat. Ann. § 73.16 must be held, in a proper case, to include fees of expert witnesses for the defendants. The allowance or disallowance of such fees should be a matter for the trial judge to decide in the exercise of sound judicial discretion. Civil Procedure > Special Proceedings > Eminent Domain Proceedings > General Overview Real Property Law > Eminent Domain Proceedings > General Overview Real Property Law > Eminent Domain Proceedings > Constitutional Limits & Rights > General Overview Real Property Law > Eminent Domain Proceedings > Elements > Just Compensation Real Property Law > ... > Elements > Just Compensation > Property Valuation HN5 Since the owner of private property sought to be condemned is forced into court by one to whom he owes no obligation, 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. Counsel: [ * *1] Hudson & Cason, Miami, John W. McWhirter, Calvin Johnson, Tampa, and A. M. Black, Dania, David V. Kerns, Tampa and Risdon Boykin, Chattahoochee, for appellant. E. F. P. Brigham, and T. C. Britton, Miami, for appellees. Judges: HOBSON, Justice, ADAMS, C.J., and TERRELL, SEBRING and ROBERTS, JJ., concur; CHAPMAN and THOMAS, JJ., dissent. Opinion by: HOBSON Opinion EN BANC [ *603] HOBSON, Justice. This case is before us on petition for writ of certiorari. The primary and controlling question presented for our determination is whether the Circuit Judge erred in taxing the fees of expert witnesses who testified for the appellees, defendants below, as costs against the appellant, petitioner below, in a condemnation proceeding. The appellant insists that expert witnesses' fees are not legal costs as contemplated by the statutes of the State of Florida and are wholly unauthorized by law. In support of its position the appellant relies heavily upon our opinion and judgment in the case of Inland Waterways Development Co v City of Jacksonville. Fla., 38 So.2d 676. 678, and entertains the view that the opinion and judgment in that case concluded the question raised in this case favorable to appellant's [ * *2] position. We do not believe that the holding in the case of Inland Waterway Development Co v City of Jacksonville, supra, is necessarily or inevitably controlling. In that case this Court, speaking through Mr. Justice Terrell simply stated the general rule as follows: "As to the cost of expert witnesses, the rule generally approved is that the condemnor is not required to pay such costs beyond the amount allowed by law as per diem for ordinary witnesses, the reason for the rule being, that expert witnesses sell their services much as law services and other professional services are sold, he is not required by law to testify, hence he must be paid by the one who produces him." HNI To recite and approve a general rule in one case is not the equivalent of establishing it as an unyielding, inflexible guide in every case. We clearly indicated we were not deciding that the general rule with reference to expert witnesses' fees would obtain without exception. The question as stated by Mr. Justice Terrell was "Whether or not the petitioner is required to pay the charges of expert witnesses, including the Emily Pepin Packet Page -2025- 47 So. 2d 602, *603; 1950 Fla. LEXIS 1049, * *2 cost of photographs and certified copies of public records * * *." (Italics [ * *3] supplied). We have held that HN2 an opinion emanating from this Court must be construed in the light of the facts and circumstances of the case which was then before us for decision. Pearson et al. v. Taylor 159 Fla. 775, 32 So.2d 826; Kahn v American Surety Co. of New York, 120 Fla. 50, 162 So. 335; Shelfer v. American Agr. Chemical Co., 113 Fla. 108, 152 So. 613. After stating the question above quoted the writer of that opinion then said: "We can think of no reason why photographs and certified copies of public records would have any place in the proof of 'full compensation' or 'just value' for lands condemned for public use, but if in the discretion of the trial court such instruments were of use value in a condemnation proceeding, we would not be inclined to hold him in error except upon a very strong .showing of abuse of discretion." (Italics supplied.) The effect of our ruling was an affirmance of the Circuit Judge who disallowed expert witnesses' fees. In the present case the Circuit Judge allowed expert witnesses' fees and included them in the judgment. He gave sound, logical and cogent reasons therefor and determined that in this case expert witnesses [ * *4] definitely were of "use value" for they were essential in order for the defendants below to meet the plaintiff, Dade County, upon equal footing. We quote from this order: [ *604] "HN3 Freedom to own and hold property is a valued and guarded right under our government. Full compensation is guaranteed by the Constitution to those whose property is divested from them by eminent domain. The theory and purpose of that guaranty is that the owner shall be made whole so far as possible and practicable. "The courts should not be blind to the realities of the condemnation process. Any excuse which the Court might have for disclaiming knowledge of just what goes on, is entirely removed by the 6/24/2014 16.K.2. Page 3 of 4 fact that the Court itself views the trial and proceedings and has personal knowledge of all such matters. The Court sees that the County is armed with engineering testimony, engineering data, charts and drawings prepared by expert draftsmen. "The court sees that the County produces appraisers, expert witnesses relating to value, usually more than one in number, whose elaborate statement of their qualifications, training, experience and clientele indicate a painstaking and elaborate appraisal [ * *5] by them calling for an expenditure by the County of fees to such experts and appraisers which are commensurate therewith, and customary for like services of such persons. A lay defendant whose property is to be taken is called upon to defend against such preparation and expert testimony of the County. It is unreasonable to say that such a defendant must suffer a disadvantage of being unable to meet this array of able, expert evidence, unless he shall pay for the same out of his own pocket. "Can the County contend that such high priced evidentiary items are not a part of the 'costs of the proceedings' when they themselves by presentation of the same in their case, make them a part of the proceedings in their behalf?" ** "It does not follow that all expenses to which the defendant elects to put himself in connection with the defense of such a case may be collected on a costs judgment It is the duty of the Court to inquire into the items of cost, to be satisfied, for example that the appraisers are not too numerous, and that their charges are proper, that the engineering fees and charts, drawings, maps, photographs etc. were reasonably considered necessary by counsel for defendants [ * *6] in their handling of the case and that they appear to the Court to have been reasonably deemed necessary as to kind and quantity, and the same applied to other costs which the Court may be called upon to allow which are outside of the Emily Pepin Packet Page -2026- 47 So. 2d 602, *604; 1950 Fla. LEXIS 1049, * *6 customary law suit type of court costs consisting of clerk's and sheriff's charges and witness per diem fees and simple reporting charges." "The evidence presented before me established that the charges of the various experts were reasonable and within the range of those customarily charged and paid in this community for services of similarly qualified persons for similar services. "To the extent that costs are reasonably and necessarily incurred in the defense of a condemnation case like this they should be allowed, subject to court reviews thereof, and determination as to the necessity and propriety by the Court as indicated above." The foregoing observations of the learned Circuit Judge need but slight amplification. We approve the logic of his pronouncements. We might, and do, add thereto the thought that HN4 Section 73.16, Florida Statutes 1941, F.S.A., which provides "All costs of proceedings shall be paid by the petitioner, including a reasonable [ * *7] attorney's fee * * *" should be construed in the light of Section 1.2 of our Declaration of Rights, F.S.A., which declares that private property shall not be taken "without just compensation." (Italics supplied.) When so construed the language "All costs of proceedings * *" must be held, in a proper case, to include fees of expert witnesses for the defendants. The allowance or disallowance of such fees should be a matter for the trial judge to decide in the exercise of sound judicial discretion. HN5 Since the owner of private property sought to be condemned is forced into court by one to whom he owes no obligation, 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 [ *605] 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 6/24/2014 16.K.2. Page 4 of 4 Re Water Supply in City of New York. 125 A.12.1' Div 219 109 N.Y.S. 652. 654, as follows: "He does not want to sell. The property is taken from him through the exertion of the high powers of the statute, and the spirit of [ * *8] 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." It is our view that we should deny certiorari and uphold the order entered by the Circuit Judge. In so doing we are not running counter to our conclusion in the Inland Waterway Co. suit for there we upheld the general rule and the opinion in that case does not indicate that the ruling of the Circuit Judge was challenged on the ground of abuse of discretion. Had the circumstances there justified an exception to the general rule, abuse of discretion might have entered into that picture and conceivably our opinion might have been different. We sustained the invocation by the trial judge of the "general rule" and his exercise of sound judicial discretion in applying it. In this case we sustain [ * *9] the trial judge for recognizing an exception to the "general rule" and his exercise of sound judicial discretion. Certiorari denied. Dissent by: CHAPMAN; THOMAS Dissent CHAPMAN and THOMAS, Justices (dissenting). We dissent. See Inland Waterway Development Company et al v City of Jacksonville. Fla., 38 So.2d 676. Emily Pepin Packet Page -2027- Statutes & Constitution :View Statutes : Online Sunshine 6/24/2014 16.K.2. Select Year: The 2013 Florida Statutes Title VI Chapter 73 View Entire Chapter CIVIL PRACTICE AND PROCEDURE EMINENT DOMAIN 73.091 Costs of the proceedings. — (1) The petitioner shall pay attorney's fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court, including, but not limited to, reasonable appraisal fees and, when business damages are compensable, a reasonable accountant's fee, to be assessed by that court. No prejudgment interest shall be paid on costs or attorney's fees. . (2) At least 30 days prior to a hearing to assess costs under this section, the condemnee's attorney shall submit to the condemning authority for each expert witness complete time records and a detailed statement of services rendered by date, nature of services performed, time spent performing such services, and costs incurred, and a copy of any fee agreement which may exist between the expert and the condemnee or the condemnee's attorney. (3) In assessing costs, the court shalt consider all factors relevant to the reasonableness of the costs, including, but not limited to, the fees paid to similar experts retained in the case by the condemning authority or other parties and the reasonable costs of similar services by similarly qualified persons. (4) In assessing costs to be paid by the petitioner, the court shall be guided by the amount the defendant would ordinarily have been expected to pay for the services rendered if the petitioner were not responsible for the costs. (5) The court shall make specific findings that justify each sum awarded as an expert witness fee. History. —s. 1, ch. 65.369; s. 2, ch. 87.148; s. 52, ch. 90 -136; s. 1, ch. 90 -303; s. 2, ch. 94 -162; s. 60, ch. 99 -385. Copyright ® 1995 -2014 The Florida Legislature • Privacy Statement • Contact Us http: / /www.leg.state.fl.us /STATUTES /indPX Packet Pra�� 20u8= Display _Statute &Search_Stri... 6/6/2014 Statutes & Constitution :View Statutes : Online Sunshine 6/24/2014 16.K.2. Select Year: 2013 The 2013 Florida Statutes Title VI Chapter 73 View Entire Chapter CIVIL PRACTICE AND PROCEDURE EMINENT DOMAIN 73.092 Attorney's fees.— (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. 1. In determining attorney's fees, if business records as defined in s. 73.015(2)(c)2. and kept by the owner in the ordinary course of business were provided to the condemning authority to substantiate the business damage offer in s. 73.015(2)(c), benefits for amounts awarded for business damages must be based on the difference between the final judgment or settlement and the written counteroffer made by the condemning authority provided in s. 73.015(2)(d). 2. In determining attorney's fees, if existing business records as defined in s. 73.015(2)(c)2. and kept by the owner in the ordinary course of business were not provided to the condemning authority to substantiate the business damage offer in s. 73.015(2)(c) and those records which were not provided are later deemed material to the determination of business damages, benefits for amounts awarded for business damages must be based upon the difference between the final judgment or settlement and the first written counteroffer made by the condemning authority within 90 days from the condemning authority's receipt of the business records previously not provided. (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 shalt 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 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 shalt 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. http : / /www.leg.state.fl.us /STATUTES /ind Packet, ,1T.e i20u9- Display_Statute &Search Stri... 6/6/2014 Statutes & Constitution :View Statutes : Online Sunshine 6/24/2014 16.K.2. (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. (4) At least 30 days prior to a hearing to assess attorney's fees under subsection (2), the condemnee's attorney shall submit to the condemning authority and to the court complete time records and a detailed statement of services rendered by date, nature of services performed, time spent performing such services, and costs incurred. (5) The defendant shall provide to the court a copy of any fee agreement that may exist between the defendant and his or her attorney, and the court must reduce the amount of attorney's fees to be paid by the defendant by the amount of any attorney's fees awarded by the court. History. —s. 1, ch. 76.158; s. 37, ch. 85 -180; s. 3, ch. 87.148; s. 54, ch. 90.136; s. 3, ch. 90 -303; s. 3, ch. 94 -162; S. 1370, ch. 95 -147; s. 61, ch. 99 -385. Copyright O 1995 -2014 The Florida Legislature • Privacy Statement • Contact Us http: / /www.leg.state.fl.us /STATUTES /in�P� Packet Prapp_20 uO- Display_Statute &Search Stri... 6/6/2014 Statutes & Constitution :View Statutes: Online Sunshine Select Year: 2� 013 2��; The 2013 Florida Statutes 6/24/2014 16.K.2. Title XI Chapter 127 View Entire COUNTY ORGANIZATION AND RIGHT OF EMINENT DOMAIN Chapter INTERGOVERNMENTAL RELATIONS TO COUNTIES CHAPTER 127 RIGHT OF EMINENT DOMAIN TO COUNTIES 127.01 Counties delegated power of eminent domain; recreational purposes, issue of necessity of taking; compliance with limitations. 127.02 County commissioners may authorize acquirement of property by eminent domain. 127.01 Counties delegated power of eminent domain; recreational purposes, issue of necessity of taking; compliance with limitations. — (1)(a) Each county of the state is delegated authority to exercise the right and power of eminent domain; that is, the right to appropriate property, except state or federal, for any county purpose. The absolute fee simple title to all property so taken and acquired shall vest in such county unless the county seeks to condemn a particular right or estate in such property. (b) Each county is further authorized to exercise the eminent domain power granted to the Department of Transportation by s. 337.27(1), the transportation corridor protection provisions of s. 337.273, and the right of entry onto property pursuant to s. 337.274. (2) However, no county has the right to condemn any lands outside its own county boundaries for parks, playgrounds, recreational centers, or other recreational purposes. In eminent domain proceedings, a county's burden of showing reasonable necessity for parks, playgrounds, recreational centers, or other types of recreational purposes shall be the same as the burden in other types of eminent domain proceedings. (3) A county shall strictly comply with the limitations set forth in ss. 73.013 and 73.014. History. —s. 1, ch. 7338, 1917; RGS 1503; CGL 2281; s. 1, ch. 22802, 1945; s. 18, ch. 63 -559; s. 5, ch. 73 -299; s. 1, ch. 84- 319; s. 17, ch. 85 -80; s. 4, ch. 88 -168; s. 1, ch. 91 -141; s. 62, ch. 99 -385; s. 4, ch. 2006 -11. 127.02 County commissioners may authorize acquirement of property by eminent domain.— The board of county commissioners may not exercise its power of eminent domain unless the board adopts a resolution authorizing the acquisition of a property, real or personal, by eminent domain for any county use or purpose designated in such resolution, subject to the limitations set forth in ss. 73.013 and 73.014. History. —s. 2, ch. 7338, 1917; RGS 1504; CGL 2282; s. 5, ch. 2006 -11. Copyright © 1995 -2014 The Florida Legislature • Privacy Statement • Contact Us http: / /www.leg.state.fl.us /STATUTES /ind A Packet , P 2 ,app 0u�= Display_Statute &URL= 0100... 6/6/2014