SEMINOLE COUNTY, APPELLANT,
v.
CORAL GABLES FEDERAL SAVINGS AND LOAN ASSOCIATION, APPELLEE

Fla. 5th DCA | 1997-04-18
No. 95-3210
GRIFFIN, J., and PERRY, B., Jr., Associate Judge, concur.
691 So. 2d 614 Florida District Court of Appeal, Fifth District (1997) Positive Treatment
Cited by 5 cases

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Holding

The court held that section 73.092, Florida Statutes, is constitutional and does not unconstitutionally infringe on judicial powers, allowing the legislature to set attorney's fees as a percentage of the benefit obtained in eminent domain cases.


Headnotes

[1] The legislature may require an award of attorney's fees in eminent domain cases based on a percentage of the benefit obtained.

[2] A specific statute governing attorney's fees in eminent domain cases prevails over a general statute prohibiting the introduction of evidence of offers to compromise a cl…

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Facts & Procedural History

Seminole County appealed an attorney's fee award to CGF in an eminent domain case, arguing the statute used to calculate the fee was unconstitutional.…

The full statement of facts, procedural history, and disposition for this case are member content.

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Opinion of the Court
THOMPSON, Judge.

THOMPSON, Judge.

In this eminent domain case, Seminole County appeals an attorney’s fee award to Coral Gables Federal Savings and Loan Association (“CGF”) entered pursuant to section 73.092, Florida Statutes (Supp.1994). Section 73.092 provides, in part, that attorney’s fees should be based on a percentage of the “benefit” obtained after negotiations. Seminole County argues that section 73.092 is unconstitutional because it deprives trial courts of the ability to determine a reasonable fee to a landowner based upon the criteria listed in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla.1985). We affirm.

After the county made a written offer of $475,000, the county and CGF agreed that the county would purchase the property for $680,000.

The trial court determined the “benefits achieved by counsel for [CGF] ... pursuant to section 73.092(l)(a) and (b), Florida Statutes (1994) to [be] $205,000.00.” The court further held, “Given the foregoing determination of benefits achieved, the court awards attorney’s fees to CGF, in the amount of $67,650.00.” This was 33% of the difference between ’$680,000 and $475,000 ($680,000 — $475,000 = $205,000 X 33% = $67,650). “Benefit” is defined by the statute as the difference “between the final judgment and settlement and the last written offer made by the condemning authority before the defendant hires an attorney.” § 73.092(l)(a), Fla.Stat. (Supp.1994).

First, Seminole County argues that attorney’s fees statutes are surplusage in eminent domain eases because courts possess constitutional authority to assure representation and reasonable compensation. The county states that Article X, section 6(a) of the Florida Constitution provides the right to counsel and reasonable attorney’s fees for the owner in eminent domain cases. Seminole County urges that the judiciary is the only entity that can determine attorney’s fees in eminent domain cases, and that the legislature cannot engage in fee-setting. This argument was made previously by Seminole County in Seminole County v. Delco Oil, Inc., 669 So. 2d 1162 (Fla. 5th DCA), rev. denied, 682 So. 2d 1100 (Fla.1996), and Seminole County v. Clayton, 665 So. 2d 363 (Fla. 5th DCA 1995).

We rejected the argument then and we reject it now.

Although the statute under consideration in Delco Oil and Clayton, section 73.02, Florida Statutes (1993), contained Rowe factors, our reasoning still applies. The legislature may require an award of fees in accordance with a sliding-percentage scale. See In re Estate of Platt, 586 So. 2d 328, 335 (Fla.1991) (pointing out that if legislature had desired to set fees in probate cases in accordance with a sliding-percentage scale, it could have retained or modified prior statute). Where the legislature is silent on the factors it considers important in determining a reasonable fee, courts may look to the criteria enumerated in rule 4-1.5 of the Rules Regulating The Florida Bar. Schick v. Dept. of Agriculture & Consumer Services, 599 So. 2d 641, 643 (Fla.1992).

However, where the legislature specifically sets forth the criteria it deems will result in a reasonable award and will further the purpose of the fee-authorizing statute, only the statutory factors may be considered. Id. at 643-644. See also, Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990) (holding that lodestar method unnecessary where legislature is specific in setting criteria to be used in determining fee, and citing as example worker’s compensation cases in which legislature set forth sliding-percentage scale); Division of Admin., State Dept. of Transp. v. Ruslan, Inc., 497 So. 2d 1348, (Fla. 4th DCA 1986) (award of attorneys’ fees in condemnation proceedings governed by provisions of Chapter 73, Florida Statutes (1985) rather than Rowe).

In the instant case, the legislature essentially decided that a percentage of the benefits is a reasonable fee, and in Schick, the supreme court stated that the legislature can enact attorney’s fees provisions which “it deems will result in a reasonable award.” Id. at 644.

Accordingly, we find this issue has no merit.

Seminole County next argues that the trial court erred when it admitted into evidence the county’s written offer of $475,000.

We disagree. The county argues that section 90.408, Florida Statutes (1995), prohibits the introduction of any evidence of an offer to compromise a claim.

Section 73.092 is intended to promote settlements and to deter litigation. It prevails over section 90.408 because the specific prevails over the general and because a later enactment prevails over an earlier enactment. See Starr Tyme, Inc. v. Cohen, 659 So. 2d 1064, 1067 (Fla.1995) (when two statutes, whether general or specific, are hopelessly in conflict, the more recent prevails); People Against Tax Revenue Mismanagement, Inc. v. County of Leon, 583 So. 2d 1373,1377 n. 5 (Fla.1991) (specific statute always prevails over general statute to the extent of any irremediable inconsistency, and, in effect, the former is construed as an exception to the latter).

We find the other argument raised by the county also to be without merit.

We affirm the attorney’s fees order and hold that section 73.092 does not unconstitutionally infringe on the powers of the judiciary, and that it is within the power of the legislature to require that attorney’s fees be set as a percentage of the benefit.

AFFIRMED.

GRIFFIN, J., and PERRY, B., Jr., Associate Judge, concur.


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Cited By

  • Dep't of Transp. v. Robbins & Robbins, Inc., 700 So. 2d 782 (Fla. 5th DCA 1997)
    …y’s fees should be based upon a specific percentage of the "benefit” obtained after negotiations. Where the legislature [*784] sets forth criteria, only the criteria may be considered. See Seminole County v. Coral Gables Federal Sav. and Loan Ass’n, 691 So. 2d 614 (Fla. 5th DCA 1997) (citing Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828 (Fla.1990); Division of Admin., State Dept. of Transp. v. Ruslan, Inc., 497 So. 2d 1348 (Fla. 4th DCA 1986)). Here, the court was required to follow the 1993 version of…
  • …d). Section 73.092 The benefits achieved formula set forth in section 73.092 has encroached on this fundamental right, but has previously withstood a facial constitutional challenge. In Seminole County v. Coral Gables Federal Savings & Loan Ass’n, 691 So. 2d 614, 614 (Fla. 5th DCA 1997), the Fifth District rejected an assertion that section 73.092 is unconstitutional because it divests the judiciary of the ability to determine reasonable attorney’s fees for a private property owner. The district court held…
  • …$250,000, plus 25% of any portion of the benefit between $250,000 and $1 million. See § 73.092(1)(c)1.-2., Fla. Stat. “Section 73.092 is intended to promote settlements and deter litigation.” Seminole Cnty. v. Coral Gables Fed. Sav. & Loan Ass’n, 691 So. 2d 614, 615 (Fla. 5th DCA 1997). Accordingly, when “the condemning authority acknowledges there has been a taking from the outset,” it may preserve a statutory right to limit the landowner’s attorney’s fee award by making a written offer of settlement. Re…

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