“That the power to tax involves the power to destroy … [is] not to be denied” – Supreme Court Justice John Marshall.

Florida’s Constitution is one of only a few that recognizes a landowner should not be put in a worse position after a condemnation than before. Full compensation, as the Constitution requires, includes attorneys fees as calculated under Chapter 73 of the Florida Statutes. This calculus is based on the ‘betterment’ achieved for a client, namely the difference between a first offer and the ultimate settlement or jury award.

But what happens when the condemning authority doesn’t play fair, forcing the property owner’s attorney to spend an exorbitant amount of time combating excessive litigation tactics?

Every case starts with the scales tilted in favor of the condemning authority.

Until this month, that was the risk owners’ attorneys took in accepting any case. However, after years of appeals, one particularly noteworthy case involving Orlando’s own Central Florida Expressway Authority has finally wound its way to the Florida Supreme Court for their review and opinion.

Our team’s newest member, Summer DeGel picks it up from there:

On November 5, 2015, the Supreme Court of Florida decided what will likely be considered a landmark eminent domain case in Florida.  In the case, Doerr v. Central Florida Expressway Authority the Court fundamentally changed the playing field between owners and condemning authorities.

The Central Florida Expressway Authority began a condemnation proceeding to take 9.81 acres of land belonging to the Joseph B. Doerr Trust.  The jury in that case found that the owner was entitled to $5.74 million for the land taken and damages.  After the trial, the Landowner moved for attorneys’ fees under the applicable Florida laws.

Although an award of attorneys’ fees to the landowner is standard in every eminent domain action in Florida, this case was different.  Per the Supreme Court, the Central Florida Expressway Authority’s attorneys had engaged in tactics that the courts deemed excessive litigation.  The Court also found that the landowner’s attorney would not be compensated for responding to these tactics under the current statutory scheme, known as the benefits achieved formula, found in Section 73.092(1) of the Florida Statutes.  Thus, on appeal, the Supreme Court set out to answer the question of whether the benefits achieved formula was unconstitutional when used to calculate attorneys’ fees for the hours incurred in defending against excessive litigation in an eminent domain proceeding.

In the opinion, the Supreme Court reaffirmed that a landowner is entitled to full compensation under the Florida Constitution, which includes an award of attorneys’ fees.  In addition, the Supreme Court reiterated the “importance of fair play in eminent domain proceedings because of the inherent disadvantage to the property owner.”  The Supreme Court noted that limiting the attorneys’ fees to the benefits achieved formula in this case would deny the landowner his right to full compensation under the Florida Constitution.

Therefore, the Supreme Court concluded that when a private property owner must defend against excessive litigation by the condemning authority, that property owner will be compensated for that defense.

The Supreme Court declined the opportunity to list what would or would not qualify as excessive litigation techniques on the part of the condemning authority, but did state that litigation that differs from what the legal community would expect in a normal or usual condemnation case meets this test.