By: William Warmke

Joseph B. Doerr Trust v. Central Florida Expressway Authority considers the process of eminent domain under Florida law and how attorney fees should be included in the award when the process sought is excessively litigious.[1]

The Orlando–Orange County Expressway Authority (“Authority”) began a condemnation proceeding to acquire 9.81 acres of land, identified as Parcel 406, for the construction, maintenance, and operation of a toll road across Florida.[2] Parcel 406 was owned by Joseph B. Doerr, who was the Trustee of The Joseph B. Doerr Revocable Living Trust (“Doerr”).[3]

Doerr shared ownership of the land with Ministry Systems, Inc. (“Ministry”).[4] On June 5, 2006, the Authority offered to buy Parcel 406 from Doerr, but Doerr rejected this offer and the Authority filed an action to condemn the property for the construction of the toll road.[5] A jury trial was held to determine the value of Parcel 406 owed to Doerr.[6] After the trial court’s decision, Doerr and Ministry, as the collective landowners (“Landowners”), filed a motion for attorney’s fees.[7] The Authority sought to limit attorney fees by using the benefits achieved formula outlined under Florida law, section 73.092(1).[8] The Landowners, however, asserted that they were entitled to attorney’s fees under section 73.092(2), which requires a trial court to consider “qualitative and quantitative factors in determining the amount of a fee award.”[9]

Applying the factors listed in section 73.092(2), the trial court awarded the Landowners desired attorney’s fees.[10] The Fifth District Court of Appeal reversed the trial court’s decision, concluding that the attorney’s fees for the valuation proceedings were limited to those allowed by the benefits achieved formula in section 73.092(1).[11] Although the Fifth District did note that this case had been “over-litigated,” it remanded the case back to the trial court for consideration of another claim raised by the Landowners.[12] This claim was that the application of the benefits achieved formula in 73.092(1) of Florida law violated their constitutional right to full compensation because the Authority intentionally caused excessive litigation.[13] On remand from the Fifth District, the trial court found that the Authority had engaged in a “clear pattern of excessive litigation.”[14]

The Authority appealed this finding and the Fifth District again reversed the decision of the trial court, holding that the trial court had erred.[15] At this point, the Fifth District asked the Florida Supreme Court to resolve whether excessive litigation triggers the benefits achieved formula in section 73.092(2).[16] The Florida Supreme Court answered in the affirmative, in a unanimous opinion, holding that “when a condemning authority engages in tactics that cause excessive litigation, section 73.092(2) shall be used separately and additionally to calculate a reasonable attorney’s fee for the hours expended which are attributable to defending against the excessive litigation or actions.”[17]

The Florida Supreme court began their analysis by looking Article X, Section 6(a) of the Florida Constitution, which provides that “[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner.”[18] Precedent established that that “full compensation” includes the right to a reasonable attorney’s fee for the property owner.[19] The Court then turned to analyzing section 73.092 of the Florida Statutes, which was hotly disputed in this case.[20] Although the Legislature may establish “reasonable parameters for the award of attorney’s fees in eminent domain proceedings,” the Court held that a statute “cannot operate in a manner to so reduce a fee award that it runs afoul of the constitutional guarantee that private property owners receive full compensation for a taking of their property.”[21]

The decision in this case is a win for all property owners in Florida. Property owners no longer have to fear excessive litigating tactics when disputing eminent domain proceedings knowing that attorney’s fees are now included in the “full compensation” demanded by the Florida Constitution. The Court’s decision also means that if the government chooses excessive litigation tactics, then attorney’s fees can be increased beyond what Florida law typically allows for in these scenarios. While litigating these cases will still take their toll on all of the involved parties, both emotionally and financially, there is now a system in place, in Florida, to recoup some of those financial losses.

[1] Joseph B. Doerr Trust v. Cent. Florida Expressway Auth., No. SC14-1007, 2015 WL 6748858, at *1 (Fla. Nov. 5, 2015).

[2] Orlando/Orange Cnty. Expressway Auth. v. Tuscan Ridge, LLC, 84 So.3d 410, 411 (Fla. 5th DCA 2012).

[3] See Id.

[4] See Id.

[5] See Id.

[6] See Id. at 412.

[7] See Id.

[8] See Id. See also Fla. Stat. Ann. § 73.092(1) (West).

[9] See Id. See also Fla. Stat. Ann. § 73.092(2) (West).

[10] Tuscan Ridge, LLC, 84 So.3d at 412-13.

[11] See Id. at 413.

[12] See Id. at 418-19

[13] See Id.

[14] Joseph B. Doerr Trust, No. SC14-1007, 2015 WL 6748858, at *3 (finding that the Authority spent twice as much time deposing the Landowners’ experts as the Landowners spent deposing the Authority’s experts).

[15] See Id. at 4.

[16] See Id. at 5.

[17] See Id. at 9.

[18] See Id. at 5; See also Fla. Const. art. X, § 6.

[19] See Id. at 5 (citing Tosohatchee Game Pres., Inc. v. Cent. & S. Fla. Flood Control Dist., 265 So.2d 681, 684–85 (Fla.1972)).

[20] See Id. at 6.

[21] See Id.


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