Case Law Summaries
Jay W. Small
Attorney
Mateer & Harbert, P.A.
225 E. Robinson Street, Suite 600
Orlando, FL 32801
jsmall@mateerharbert.com
(407) 425-9044
1
Hillcrest Property, LLP v. Pasco County, 939 F. Supp. 2d 1240 (M.D. Fla. 2013), reversed, 754 F.3d
1279 (11th Cir. 2014).
Facts: In 2005, Pasco County adopted an ordinance that required an owner applying for a development
permit to dedicate to the County the fee simple interest in land within a transportation corridor in
exchange for the issuance of the permit. The ordinance established an elaborate and costly variance and
waiver procedure for an owner seeking relief from the strict application of the ordinance. An applicant
for development permits had the burden of proof under both procedures.
In 2006, Hillcrest began efforts to develop its 16 acre parcel of property into a retail commercial
development. Application of the ordinance required the owner to dedicate a strip of land along the
property’s State Road 52 frontage. During this time frame, negotiations among the owner, the County,
and the Florida Department of Transportation took place, lasting until 2007, resulting in the Department
also requiring a building setback. In 2007, the owner submitted a site plan application with a written
reservation of rights to the dedication although it did not appeal the dedication requirement or use the
variance and waiver procedures. After the site plan was approved, the owner submitted a series of
construction permit applications which were conditionally approved subject to the County’s demanded
dedication.
Procedural Posture: The owner sued the County alleging federal and state claims for relief including
due process, equal protection, denial of access to the courts, and denials of a right to a jury trial, and
other state claims for relief, including inverse condemnation. The owner asserted no federal takings
claim. In a related state court litigation, the appellant sued the Department alleging state takings claims.
The parties filed motions for summary judgment, and the magistrate judge determined that the ordinance
could be challenged as a substantive due process violation. The Federal District Court adopted virtually
intact the magistrate judge’s report and recommendation. The District Court entered a summary
judgment for the owner, granting its facial due process claim. It declined ruling the state takings claim
because of the separate suit in state court against the Department and the possible jurisdictional splitting
of claims.
The County appealed the District Court’s final judgment, arguing that the District Court erred in holding
that Hillcrest’s facial challenge not accrue on the date that the ordinance was enacted and was thus time
barred.
Issue: Whether the County’s variance and waiver provisions satisfied federal exaction, criteria, and
whether the owner had exhausted its administrative remedies before filing its lawsuit and whether the
facial challenge was barred by the statute of limitations.
Analysis and Holding: The District Court resolved the case on substantive due process grounds,
relying heavily on the reasoning of Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and
Dolan v. City of Tigard, 512 U.S. 374, 114 S.Ct. 2309, 129 L.Ed. 2d 304 (1994). As a general rule, a
governmental accommodation cannot be conditioned on the relinquishment of a constitutional right.
Land use exactions conditioning development approval on dedication of a property interest to public
uses are limited exceptions to this general rule. Nollan involved a situation in which the dedication did
not advance the justification for the exaction and there was no rational nexus between the exaction and
the state’s interest. Unlike Nollan, the County’s ordinance did further a public interest in road widening
programs by decreasing future acquisition costs. Dolan provided a safe harbor to Nollan if the
dedication was roughly proportional to the impact of the proposed development. However, unlike both
2
Dolan and Nollan, Pasco County’s ordinance shifted the burden of proof to the owner to prove the
disproportionate impact during the variance and waiver application process. Relying on Florida map of
reservation cases, the District Court ruled that the Pasco County ordinance deprived the owner of its
substantive due process rights. While decreasing acquisition costs is a justifiable state interest, the
means crafted to achieve that interest ran afoul of due process. In the Florida map of reservation cases,
the statute at issue froze property values in anticipation of future condemnation. Even more insidious
than the moratoriums imposed by the map of reservation statutes, according to the District Court, was
the County’s ordinance required an owner immediately to convey the fee simple interest in property at
no cost in exchange for a development permit.
The Circuit Court reversed the lower court’s ruling imposing an injunction on the County prohibiting its
enforcement of ordinance based on the facial challenge to the ordinance. The Circuit Court ruled that
the facial challenge cause of action accrued on the date of the ordinance’s adoption and was barred by
the statute of limitations.
3
Theodore Ryan v. City of Boynton Beach, ____ So.3d ____, 40 Fla. L. Weekly D345a (Fla. 4th Cir.
2015).
Facts: Before filing its condemnation suit, the City of Boynton Beach recorded two orders imposing
fines for code violations which resulted in two liens attaching to Ryan's real and personal property.
Thereafter the City filed a condemnation suit to take the property, and the parties stipulated to the entry
of a final judgment in the amount of $99,000.00, with the court reserving jurisdiction over the
apportionment claims of lienholders with respect to the award of full compensation.
Several years later, Ryan filed a motion to disburse the final judgment proceeds still held in the registry
of the court, and the City sought to satisfy its prior code enforcement liens from the settlement. The trial
court denied the City's motion on the basis that it had failed to file a separate petition to enforce the lien
under Chapter 162, and the City successfully appealed that decision. On appeal Ryan's motion to tax
appellate attorneys' fees was granted, and on remand the lower court was directed to consider the result
obtained on appeal in setting the fee.
Procedural posture: Following the appeal, Ryan filed a motion to tax fees and costs incurred in
connection with the motions for disbursement and for appellate attorneys' fees. The trial court denied
Ryan's motion in its entirety.
Issue: The issue on appeal concerned the extent to which Ryan was entitled to attorneys’ fees for
handling the apportionment proceeding.
Analysis and holding: Concerning the appellate attorneys' fees, the appellate court's earlier order
awarding Ryan fees resolved that matter and became the law of the case. The appellate court rejected
the trial court's rational that, based on the appellate court's ruling to consider the result obtained on
appeal, Ryan was not entitled to a fee because he did not prevail on appeal. Section 73.131, Fla. Stat.,
requires a condemning authority to pay all reasonable costs including attorneys' fees, except up on
appeal taken by a defendant in the judgment of the lower court is affirmed.
Concerning the fees for the motions for disbursement, section 73.092(2), Fla. Stat., governed the award
of fees for apportionment or for claims arising as a direct result of the eminent domain proceeding.
Ryan insisted that the trial court could not deny his motion for attorneys' fees for apportionment because
the appellate court had inherently ruled that all matters related to the disposition of the lien claim were
directly related to the condemnation. Notwithstanding the fact that the appellate court had earlier ruled
that disposition of the funds in the registry of the court could not be denied for the reason that the City
failed to filed an independent action, this did not mean that all attorney efforts were directly related to
the eminent domain case. Time spent, however, researching issues concerning the validity of the lien
would have existed irrespective to the filing of the condemnation proceedings and was not taxable as
attorneys’ fees.
4
Horne v. United States Department of Agriculture, 750 F.3d 1128 (9th Cir. 2014), certiorari granted,
2015 WL 213643 (U.S. 2015).
Facts: In the early 1900s, the California raisin market experienced dramatic surges and collapses in the
per ton value of raisins. Upheavals in the raisin markets persuaded Congress to enact the Agricultural
Marketing Agreement Act of 1937, 7 U.S.C. Section 601, et seq., (“Act”), which sought to bring
predictability to the nation's raisin market. The Act established a raiser reserve pool which required
either the diversion of excess raisins to a reserve pool or the release of raisins from the pool to smooth
out peaks and valleys in the supply curve.
The Act distinguished between raisin "producers" and "handlers." Producers grew grapes until they are
sun-dried to the point of being raisins after which they sold to handlers for a fee. Handlers cleaned,
sorted, and packaged raisins for market. Handlers bore the obligation of complying with a marketing
order which established a required percentage of raisins to be held in a reserve account. The remaining
raisins, called "free tonnage" raisins, were sold on the open market under the marketing order. Handlers
who did not divert a predetermined percentage of the annual raisin production to the raisin reserve were
subject to a fine.
The Hornes devised a novel way to avoid being classified as “handlers.” They bought handling
equipment to process, clean, and stem raisins they produced themselves. As to third-party producers,
instead of buying raisins outright, they charged a service fee to process them. After a protracted
administrative hearing, an administrative law judge found the Hornes liable for a monetary penalty of
almost $700,000.00. They sought judicial review of the final agency action, alleging that the penalty
violated the Fifth Amendment’s takings clause.
Procedural Posture: The Hornes appealed the District Court’s order affirming the administrative fine.
Issue: The issues presented on appeal are (1) whether the scope of the Fifth Amendment's requirement
to pay compensation for a physical taking of personal property is any different than for real property and
(2) whether the imposition of a fine or penalty for failure to comply with a governmental regulatory
requirement constitutes a taking.
Analysis and holding: Instead of arguing that the Act affected a partial regulatory taking under Penn
Central’s ad hoc analysis, the Hornes argued that the Act authorized a per se taking like the regulation
which authorized the physical invasion in Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S.
419 (1982). The Ninth Circuit declined to categorize the case as a Loretto type of taking because the
Act operated on personal rather than real property under the takings clause. It also reasoned that the Act
did not deprive the Hornes of each strand of their bundle of property rights because they still retained the
right to retain the proceeds from their sale of raisins.
The Ninth Circuit viewed the marketing order as a "mere restriction" on property use as opposed to a
physical taking and applied the "nexus and rough proportionality" tests of Nollan/Dolan. According to
the court, like the permits in Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan
v. City Tigard, 512 U.S. 374 (1994), the reserve program conditionally granted a governmental benefit
in exchange for the surrender of a constitutionally protected property right. Under the Act, the Hornes
faced the loss of dispositional control of their raisins.
5
Under Nollan, regulating the amount of raisins annually grown in the market had an essential nexus to
the government's interest in eliminating the peaks and valleys in the raisin supply curve. Under Dolan,
by annually modifying the amount of raisins in the marketplace to keep pace with changing market
conditions, the Act balanced the ability of raisin producers to compete while reducing potential
instability in the raisin market. Central to the ruling was the Court’s decision in Koontz v. St. Johns
River Water Management District, 133 S. Ct. 2586 (2013), which linked the government’s demand in
that case for a monetary exaction to pay for off-site wetlands mitigation to the specific parcel of property
for which the owner sought a development permit. Horne reasoned that the Department linked a
specific monetary exaction (imposition of a fine) to specific property (reserved raisins) just as the
monetary payment in Koontz was linked to the development parcel.
6
Orange County v. Hewlings, 152 So.3d 812 (Fla. 5th DCA 2014).
Facts: Hewlings filed a public information request under Chapter 119 with Orange County seeking
copies of documents related to a dangerous dog investigation of her dog. After numerous delays, the
County said that it would arrange a time within fourteen days for Hewlings to inspect and designate the
records she wanted for copying. Hewlings made clear that she did not want to inspect the records but
that she wanted copies of them. She offered to pay the costs of copying and asked for an invoice. After
a period of two weeks without a response, Hewlings filed a writ of mandamus alleging that the County
had failed to respond to her request for copies with either cost information or copies of the documents.
The trial court granted the petition, directed the County to produce the documents within forty-eight
hours but failed to award Hewlings’ attorneys’ fees based on the County’s argument that it did not
refuse to produce the documents but simply did not copy them as quickly as Hewlings wanted them
copied. The County argued that it could not be held liable for fees for refusing to delay furnishing
copies if it otherwise permitted a citizen the opportunity to personally inspect and copy the records. On
appeal, the District Court reversed the trial court order denying attorneys’ fees on the basis that the
County’s delay in complying with the request was tantamount to a refusal to furnish them, and it
remanded to the Circuit Court which conducted further proceedings and concluded that the County had
unreasonably delayed in complying with the request. It thereafter entered an order finding that
Hewlings was entitled to attorneys’ fees without fixing an amount.
Procedural Posture: The County appealed the Circuit Court order awarding attorneys’ fees on the
basis that Chapter 119 did not authorize an award of attorneys’ fees for a delay in responding to a public
information request.
Issue: Whether the County was liable for attorneys’’ fees for unreasonably delaying the production of
documents.
Analysis and Holding: The County raised the same arguments about entitlement to fees as it did during
the first appeal, and the District Court imposed sanctions on the County for filing a frivolous appeal.
As a threshold issue, the District Court determined that it had no jurisdiction to consider an appeal of an
order which determined entitlement but not the amount of attorneys’ fees at the trial court level, an issue
which Hewlings raised in her answer brief.
Reciting the facts from the initial appeal, the District Court opinion stated that the public records law is
designed to provide citizens with a simple and expeditious method of assessing public records, but the
County chose to interpose bureaucratic hurdles on Hewlings by forcing her to comb through offices,
mark records, and wait for a written estimate of costs, and then wait for the records to be mailed to her.
Rather than simply providing the records, the County’s actions caused the litigation to span four years,
and required depositions, motions, hearings, and two appeals.
Based on Rule 9.410, Fla. R. App. P., sanctions were imposed on the County for filing a frivolous
appeal to litigate issues previously decided by the court.
7
Consumer Rights, LLC v. Union County, Florida, ___So.3d ____, 40 Fla. L. Weekly (Fla. 1st DCA
2015).
Facts: A public records request was made bearing the email address, ask4records@gmail.com, and sent
to the County at UCBOCC@windstream.net, an email address on the County’s website, albeit not
associated with any particular County employee. The email purported to be made on behalf of an
unidentified company. The email request did not contain any information as to how the County could
contact the requester. The request directed the County to provide electronic copies of the responsive
documents to the email address. The County did not immediately respond to the request because it
appeared to constitute “phishing.” The plaintiff then filed suit under section 119.12, Fla. Stat. (2013),
some four months later. Thereafter the County provided the documents. The trial court held a hearing
on the plaintiff’s motion to tax attorneys’ fees and costs. It concluded that the request was intentionally
designed to appear deceptive, and that as a result the County did not unreasonably delay in producing
the documents.
Procedural posture: The plaintiff appealed the trial court’s order denying attorney’s fees and costs.
Issue: The issue on appeal was whether the County unreasonably delayed in producing documents
responsive to the public information request.
Analysis and holding: According to the District Court, the mere delay in responding to a public
information request did not in and of itself give rise to liability for violating the public records law.
Here the request came from a suspicious email address that might not have had any relation to the
person seeking the records, especially in light of the fact that the email address was not easily verified.
From the County’s perspective, the email could have contained a virus. Based on the record, the
District Court concluded that it had no reason to believe that the County would not have timely
responded to the request if the email address was easily verifiable.
8
Kentner v. City of Sanibel, 750 F.3d 1274 (11th Cir. 2014, cert denied, 21 WL 132980 (U.S. 2015).
Facts: The owners of riparian property in a beach zone brought a suit in state court, alleging that the
City’s ordinance which prohibited the construction of any new docks or accessory piers in an area
fronting a beach zone violated their substantive due process rights under the Florida and U.S.
Constitutions. They challenged the ordinance on the ground that it made no specific finding as to the
ecological conditions of submerged land, made no allowance for new dock technology that would not
harm seagrass, did not identify the boundaries of the beach zone, and allowed for no variance from the
operation of the ordinance. The City removed the case to federal district court which granted the City’s
motion to dismiss the substantive due process claims based on the fact that the riparian rights were based
on state law and therefore not fundamental rights that could support a substantive due process claim.
Procedural Posture: The owners appeal the dismissal of their complaint to the Circuit Court which
reviewed it under a de novo standard of review.
Issue: The issue was whether state created property rights were fundamental rights for purposes of
substantive due process.
Analysis and Holding: The Circuit Court’s decision first considered the substantially advances test
under Agins v. City of Tiburon, 447 U.S. 225 (1980).
A brief discussion of the U.S. Supreme Court’s weaving of substantive due process and takings
jurisprudence together is in order. In the years following Agins, its holding had been read to mean that a
land use restriction, which failed to advance a legitimate state interest, was facially unconstitutional
under the takings clause, thereby entitling the owner to compensation. Joint Ventures, Inc., v.
Department of Transportation, 563 So.2d 622 (Fla. 1992).
The Court resolved the longstanding debate about the validity of the “substantially advances” test’s
application to takings cases. Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005). It discarded the
Agins test in land use decisions because that test was logically derived from due process analysis.
According to Lingle, Agins commingled due process and takings inquiries. Before Lingle, the Court
never had the occasion to consider the “substantially advances” formula as a freestanding takings test.
Lingle rejected the substantially advances inquiry in the context of regulatory takings cases. Justice
O’Conner, writing for the majority, expressed the policy concern that this test could create serious
practical difficulties because it could be read as demanding a heightened level of scrutiny of virtually
any regulation of private property. This would immerse the federal judiciary into a sea of constant
scrutiny about the efficacy of a vast array of state and federal land use regulations--a task for which it
was ill-suited. Florida anticipated Lingle’s rejection of the Agins test in regulatory takings cases several
years earlier in Tampa – Hillsborough County Expressway Authority v. A.G.W.S. Corp., 650 So.2d 54
(Fla. 1994). The owners argued that Lingle created a new substantive due process test that applied to
state created property rights.
The Circuit Court observed that the substantive due process component of the Due Process Clause
protects those rights that are implicit in the concept of ordered liberty and are those right created by
Constitution. It distinguished fundamental rights from property rights created by state law, such as
riparian rights. As it relates to state created property rights, the substantive component of the Due
Process Clause protects the owner against the government’s arbitrary and irrational action.
9
Since the rights in this case were not fundamental rights, the Circuit Court reviewed the ordinance under
the rational basis standard. Under a rational basis standard, those challenging a governmental act must
convince the court that the legislative facts on which the classification is based could not reasonably be
conceived to be true by the governmental decision maker. On its face, the ordinance’s protection of
seagrass and aesthetic preservation offered a rational basis for the ordinance.
10
Kirby v. North Carolina Department of Transportation, ___ N.E. ___, ___S.E. 2d___, No. COA14 –
184 (N.C. App. 17 February 2015).
Facts: In order to prevent property owners from developing property in the pathway of a proposed
limited access beltway facility which would loop around the City of Winston-Salem, North Carolina
enacted a Map Act statute which prevented owners from obtaining development permits to improve their
property. The state was authorized to record in the public records a map, and after its recording no
building permits or subdivision approvals could be obtained unless the owner could obtain relief from
the act by filing an application for a variance and proving that the owner could obtain no reasonable
return could be obtained from the land. Alternatively an owner could file a hardship application which
would allow the state to make an advance acquisition of specific properties.
Procedural posture: A group of affected property owners filed a multicount complaint alleging inverse
condemnation, equal protection violations, and a declaration that the Map Act was unconstitutional as an
invalid exercise of the state’s legislative power. The trial court granted the Department’s motions to
dismiss and for summary judgment on the various claims on several bases including ripeness, and the
owners appealed to the North Carolina Court of Appeals.
Issue: The issue on appeal was whether the recording of the corridor maps in the public records caused
a taking for purposes of fixing inverse condemnation liability.
Analysis and Holding: The issue on appeal was whether the Map Act effected a taking of property. I
wanted to give you another perspective on the Kirby case. In my opinion, although the state should lose
in some existential sense, I'm not sure the court reached the right result based on the cases it cited.
Kirby cited to Joint Ventures, Inc. v. Department of Transportation, 563 So.2d 622 (Fla. 1990) which
declared Florida's right of way reservation map statute unconstitutional. Kirby declared the North
Carolina Map Act unconstitutional because, like Joint Ventures, it concluded that depressing property
value in anticipation of a proposed taking did not advance a legitimate state interest. Kirby did not
discuss any of the Florida case law decided in the wake of Joint Ventures.
Shortly after its decision, Joint Ventures had been construed by many by practitioners to stand for the
proposition that the mere recording of a map of reservation constituted an impermissible taking because
the statute did not advance a legitimate state interest. This argument was founded on the U. S. Supreme
Court’s
decision
in
Agins
v.
City
of
Tiburon,
447
U.S.
255
(1980).
Like many property owners’ counsel in Florida post-Joint Ventures, the plaintiffs in Kirby argued in
their motion for summary judgment that the mere recording of the map in their case amounted to a de
facto taking. See n. 1, on page 12 of the slip opinion.
As noted above, the Court’s decision in Lingle v. Chevron U.S.A., Inc., 544 U.S. 528 (2005), reframed
Agins as a due process case. Florida’s Supreme Court anticipated the U.S. Supreme Court’s repudiation
of the theoretical underpinning of Agins in Tampa – Hillsborough County Expressway Authority, 640
So.2d 54 (Fla. 1994) cast map of reservation statutes in due process terms.
In Florida a plaintiff would have to prove either a categorical or ad hoc Penn Central type taking.
Usually those sorts of issues are not resolved by a motion for summary judgment under a partial
regulatory taking theory at least. The plaintiffs' affidavits in Kirby did not to include any economic
expert testimony about the law’s economic impact on the owners’ use of the property.
11
Without mentioning substantive due process, Kirby concluded that depressing values in anticipation of
later acquisition did not pass constitutional muster, and the court wrote, "that the Map Act [was] a costcontrolling mechanism. . .[to] decrease the future price the State must pay to obtain those affected
parcels."
12
City of Jacksonville v. Smith, ____So.3d____, 40 Fla. L. Weekly D516a (Fla. 1st DCA 2015).
Facts: The Smiths bought a vacant water front lot in a neighborhood with multimillion dollars homes.
Next door was a parcel of property owned by the City which was subject to deed restrictions limiting the
property to leisure and recreational uses by Duval County employees. After the Smiths bought their
property, and unbeknownst to them, the City removed the restriction and rezoned the property. The City
ultimately improvement its property with a fire station and a berth to accommodate fire boats and marine
rescue boats. The Smiths filed a claim under section 70.001 of the Bert Harris Act, alleging that the
construction of the fire station inordinately burdened their property because it made the property
unmarketable and diminished its value by $470,000.00. After a bench trial on the liability issue, the trial
court ruled that the Smiths had a vested right to build on the property or sell it, but after construction of
the fire station, the City imposed an inordinate burden on their property. The court directed a jury to
determine the amount of compensation the Smiths were entitled to receive
Procedural posture: The City appealed the trial court order under Rule 9.130(a)(3)(c)(viii).
Issue: As framed by the majority, the issue on appeal was whether a property owner may maintain an
action under the Bert Harris Act if that owner has not had a law, regulation, or ordinance applied to the
owner’s property or, stated somewhat differently, whether the Act is subject to a limitation on
governmental action that affects owner’s private property that is the subject of the governmental action.
Analysis and holding: The majority ruled that the plain language of the Bert Harris Act indicates that
only real property that is directly affected by a governmental regulation is covered by the provisions of
the Act. The majority relied on Op. Att’y Gen. Fla 95 – 78 (1995) which concluded that the inherent in
the definition of “inordinate burden” and the Act is the requirement that the rule or regulation at issue
must be directly applied to the plaintiff’s property.
According to the majority, the trial court improperly isolated one section of the statute, the definition of
“action of a governmental entity” without reading that language together with language in the statute
specifying that the governmental action, as applied, must unfairly affect real property. See e.g., sections
70.001(1) and (3)(d). The court was concerned that the trial court’s ruling could open the floodgates for
claims under the Act against any state, regional, or local governmental entity whenever it approves a
development on one property or conduct activities which could adversely impact the value of another
property.
The dissenters relied, in part, on the plain language of the statute which by its express terms did not limit
the Act only to situations in which damage is caused to the property that is the subject of the regulation
or governmental action. The dissent pointed out the Texas’ own Bert Harris-type statute expressly
limited its statute’s application to a specific action of a governmental entity that affects property that is
the subject of the governmental action.
13
Randy Thompson, et a., v. Dave Heineman, in his Official Capacity as Governor of the State of
Nebraska, ___N. W. 2d ___, No. S14-158 (Neb. S. Ct. January 9, 2015).
Facts: A Nebraska statute permitted TransCanada to obtain route approval for the Keystone Pipeline
without approval from the state’s Public Service Commission. Under the statute, route approval was
made by the Governor. The statute authorizing gubernatorial approval of the route siting and the
common carrier’s eminent domain powers, which was enacted by the Nebraska legislature one day after
the President initial denial of TransCanada’s federal permit, only applied to TransCanada.
Procedural Posture: The trial court granted motions for summary judgment against the plaintiffs.
Issue: The issue on appeal was whether the plaintiffs had standing to bring suit against the Governor
when none of the plaintiffs’ property had yet been taken in an eminent domain proceeding.
Analysis and holding: The narrow substantive issue was whether the recently enacted Nebraska statute
permitting allowed the Governor, rather than the Legislature, to delegate the power of eminent domain
to a publically regulated utility. Several property owners sued, challenging the statute’s
constitutionality, and the lower court ruled that the statute had unconstitutionally divested the PSC of its
authority over common carriers. The court avoided the substantive question.
Four out of seven of the court’s justices concluded that the statute was unconstitutional, but, because of
what the court described as the Nebraska Constitution’s “unusual supermajority requirement” which
required a five justice concurrence to hold a statute unconstitutional, the legislation had to stand by
default. Three of the justices concluded that the owners lacked standing because their property had not
yet been taken and lacked taxpayer standing. According to the dissent, to the extent the plurality’s
decision discussed the constitutionality of the siting statute, the plurality’s decision was merely advisory
(although it must be said, the dissent did not disagree with anything in the majority’s “advisory”
opinion).
Under Nebraska’s condemnation law (just like Florida’s), a property owner whose property is taken by
eminent domain has a right to contest not only the amount of compensation to be paid, but also whether
the taking is legal and for a valid public purpose.
14
Orlando/Orange County Authority Expressway Authority, etc. v. Tuscan Ridge, LLC, etc. 137 So.3d
1154 (Fla. 5th DCA 2014), review granted, 147 So.3d 524 (Fla. 2014).
Facts: After the Fifth District’s decision in Orlando/Orange County Expressway Authority v. Tuscan
Ridge, LLC, 84 So.3d 410 (Fla. 5th DCA 2012), the trial court, following instructions on remand,
determined that the application of subsection 73.092(1), Fla. Stat. (2012) resulted in an unreasonable
fee. It also declared that statute unconstitutional, as applied, to the facts of the case. Instead of using the
fee formula set forth in subsection 73.092(1), the trial court used subsection 73.092(2) to set the fee by
multiplying the number of hours expended by a reasonable hourly rate. The owner’s lawyers spent in
excess of 2,600 lawyer and paralegal hours litigating the case.
The trial court identified two specific reasons in support of its ruling and finding that the condemning
authority had excessively litigated the case. First, it observed that the condemning authority’s attorneys
spent twice as much time deposing the owner’s experts as the owner’s attorneys did when they deposed
the condemning authority’s witnesses. Second, the trial court observed that late in the litigation the
condemning authority decided to use an expert witness who interjected an entirely new theory into the
case. That trial tactic caused a delay in the trial date and resulted in the owner’s attorneys spending
considerable time to refute the new theory.
Procedural Posture: The condemning authority appealed the trial court’s order awarding an attorney’s
fee under subsection 73.092(2) and ruling subsection 73.092(1) unconstitutional, as applied.
Issue: Whether the trial court correctly ruled that subsection 73.092(1) was unconstitutional, as
applied, and whether it correctly applied subsection 73.092(2) to the facts of the case.
Ruling and Analysis: The appellate court rejected the owner’s arguments. Assuming for the sake of
argument that the condemning authority had engaged in excessive litigation tactics, the court reasoned
that the owner never sought sanctions that would have been otherwise available to them to compensate
them over and above the statutory fee by utilizing subsection 57.105(2), Fla. Stat. (2013), or Rules
1.280(e) and 1.380(a)(4), Fla. R. Civ. P. Moreover, the owner’s attorneys never availed themselves of
the opportunity to use Rule 1.380(e), Fla. R. Civ. P., to promulgate requests for admissions directed to
the expert’s opinions. That rule would have entitled them to additional fees for proving or disproving
matters not admitted.
The trial court’s order taxing fees of $816,000.00 was reversed, and the case was remanded to the trial
court to enter a judgment in the amount of $227,652.25. This yielded an attorney’s fee with a blended
hourly rate of about $87.00 which the court did not deem to be patently unconstitutional, especially
when considered in the light of effective hourly rates in capital murder cases.
The court certified to the Florida Supreme Court the following question as one of great public
importance:
In an eminent domain proceeding, when the condemning authority
engages in litigation tactics causing excessive litigation and the
application of the statutory fee formula results in the fee that compensates
the landowner’s attorneys at a lower-than-market fee, when measured by
the time involved, is the statutory fee deemed unconstitutional as applied,
entitling the landowner to pursue a fee under section 73.092(2)?
15
Florida Department of Transportation v. Mallards Cove, LLP, ___ So.3d ___, 40 Fla. L. Weekly
D597a (Fla. 2d DCA 2015).
Facts: In 2007, the Department filed a quick-take condemnation proceeding to take property owned by
Mallards Cove. On August 30, 2007, the Department deposited $42,004,320.00 into the registry of the
court. The initial deposit was disbursed to Mallards Cove on September 13, 2007. The Clerk of the
Court elected to invest the amount of the initial deposit under section 74.051(4), Fla. Stat. (2007), and
the earned interest on the investment was $4,396.49. The Clerk then disbursed ninety percent of the
earned interest to the Department and retained ten percent. A stipulated final judgment was entered on
December 13, 2007.
In 2009, Mallards Cove filed an action to declare section 74.051(4) unconstitutional in that it directed
the clerk to pay ninety percent of the interest to the Department instead of Mallards Cove and to assert
an inverse condemnation claim that basis of which was that the investment interest was property entitled
to constitutional protection and that the Clerk took property without paying compensation. Under Rule
1.220, Fla. R. Civ. P., the circuit court granted class certification.
Procedural posture: The Department and Clerk appealed the trial court order on class certification
arguing that, because Mallards Cove did not own the deposit funds at the time the interest was earned,
the action was barred by res judicata due to the entry of the stipulated final judgment. The appellants
argued that the requirements for class certification were not met.
Issue: The issue on appeal was whether Mallards Cove had an ownership interest in the funds on
deposit such that the requirement to pay compensation was triggered by Article X, Section 6(a) of the
Florida Constitution.
Analysis and holding: Noting that under the Fifth Amendment to the U.S. Constitution and Article X,
Section 6(a), the right to compensation is triggered by a taking of property which entitles a property
owner to receive the fair market value of the property taken. In this case, while the interest on the
property was a component of compensation under either the federal or state constitutions, the District
Court held that the circuit court erred in determining that the deposit funds were the personal property of
Mallards Cove while they were on deposit. See, Livingston v. Frank, 150 So.3d 239 (Fla. 2nd. DCA
2014). Upon deposit of the initial estimate of value, the owner’s right to compensation vests, not the
right to the specific funds on deposit.
In addition, the stipulated final judgment rendered the underlying condemnation case final, and Mallards
Cove could not in effect seek additional compensation in a second action.
Facts may have driven the result in Mallards Cove because there was very little delay between the time
that the funds were deposited into the court registry and the time that they were disbursed. A question
left unresolved by Mallards Cove is what would happen if the Clerk had inordinately delayed
disbursement of the initial deposit or had left the funds on deposit in order to accrue an even larger
amount of interest. Even if a property owner is not entitled to compensation in the form of the interest
earned on the deposit, an inordinate delay in the disbursement would cause the owner lose the time
value of the funds to which it was entitled.
4829-6364-8802, v. 1
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