Collier Cnty. v. RTG, LLC, Case No: 2:17-cv-14-FtM-38CM

• Decision Date: 10 October 2018
• Docket Number: Case No: 2:17-cv-14-FtM-38CM
• Parties: COLLIER COUNTY, a political subdivision of the State of Florida, Plaintiff, v. RTG, LLC, Defendant.
• Court: U.S. District Court — Middle District of Florida

COLLIER COUNTY, a political subdivision of the State of Florida, Plaintiff,
v.
RTG, LLC, Defendant.

Case No: 2:17-cv-14-FtM-38CM

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA FORT MYERS DIVISION

October 10, 2018

REPORT AND RECOMMENDATION¹

This matter comes before the Court upon review of Defendant, RTG LLC's ("RTG"), Motion for Attorneys' Fees (Doc. 55)² filed on March 8, 2018; Plaintiff, Collier County's, response in opposition (Doc. 57) filed on March 22, 2018; and Appellee RTG's Motion for Attorneys' Fees (Doc. 59) transferred to this Court on April 19, 2018. Through its two motions, RTG seeks a total of $214,452.50 for attorneys' fees incurred both in the district court and on appeal. See Docs. 55, 59. Collier

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County does not dispute RTG's entitlement to fees incurred at the district court level, but Collier County does oppose the reasonableness of the amount of such fees requested. See Doc. 45; Doc. 57 at 1. Collier County did not respond to RTG's request for fees incurred during the appeal, and thus the Court deems that request as unopposed.³ See Hicks v. Deepwater Global Distrib., Inc., No. 6:17-cv-1472-Orl-41TBS, 2018 WL 3427876, at *1 (M.D. Fla. July 16, 2018) ("When a party fails to respond, that is an indication that the motion is unopposed."). For the reasons stated herein, RTG's Motion for Attorneys' Fees incurred at the district court level will be granted in part and denied in part, and RTG's Motion for Attorneys' Fees incurred on appeal will be granted in part and denied in part.

I. Background

This litigation began as an eminent domain action to acquire land needed to expand an intersection. Doc. 2 ¶¶ 8-9; Doc. 43 ¶¶ 1-2. As part of the expansion project, Collier County sought a temporary construction easement and filed a petition to commence an eminent domain proceeding against RTG and Holiday CVS, LLC ("CVS") to condemn certain property owned by RTG and leased by CVS. Doc. 2 ¶ 9, 11; Doc. 43 ¶ 2. The taking and easement eliminated or adversely impacted a total of fourteen parking spaces used for CVS customer parking. See Doc. 2 ¶ 12, 14; Doc. 43 ¶ 3. In March 2013, the Circuit Court of the Twentieth Judicial Circuit in and for

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Collier County, Florida "found that the County had complied with all requirements for the taking" and entered an order of taking. Doc. 2 ¶ 20.

In May 2013, CVS unilaterally terminated its lease with RTG due to the loss of parking spaces. Id. ¶ 14; Doc. 43 ¶ 4. "CVS and RTG each claimed that, in addition to 'full compensation' for the taking, they were entitled to business and severance damages for anticipated lost business as a result of the 'taking.'" Doc. 2 ¶ 21. Therefore, the case proceeded to a jury trial on CVS's and RTG's damages claims in January 2014. Id. ¶ 22; Doc. 43 ¶ 5. At the trial, "CVS and RTG represented that CVS would be leaving [the RTG property] because of the 'taking[,]' thereby leaving RTG without a tenant." Doc. 2 ¶ 24. The jury rendered a verdict awarding RTG $3,483,000.00 for the takings and severance damages. Doc. 43 ¶ 6; Doc. 43-2. The jury awarded CVS $1,933,000.00 in business damages. Doc. 2 ¶ 29; Doc. 2-2. Collier County also was ordered to pay approximately $1,500,000.00 to CVS and RTG for attorneys' fees and expert fees. Doc. 2 ¶ 29. Collier County did not appeal the final judgment and paid RTG the awarded damages in full. Id. ¶ 30; Doc. 43 ¶ 7.

On November 23, 2016, Collier County filed the present case in the Twentieth Judicial Circuit "to recover the monies paid pursuant to the jury verdict and final judgment in the underlying eminent domain trial on the grounds that CVS and RTG were unjustly enriched and that CVS and RTG conspired to commit extrinsic fraud on the court because CVS has yet to close the store." Doc. 43 ¶ 9. Collier County subsequently withdrew its claim against RTG for civil conspiracy to commit extrinsic fraud on the court. Id. ¶ 10. On January 10, 2017, CVS removed the case to this

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Court, and on January 17, 2017, RTG filed a motion to dismiss the Amended Complaint. Id. ¶ 11; see Docs. 1, 2, 9. Finding Collier County's claim barred under the doctrine of res judicata, the Court granted RTG's motion to dismiss and denied Collier County's request for leave to file a Second Amended Complaint. Doc. 33.

On May 9, 2017, Collier County appealed the dismissal Order. Doc. 39. On May 15, 2017, RTG filed a motion for attorneys' fees seeking fees pursuant to Sections 73.091 and 73.092 of the Florida Statutes. Doc. 43. RTG contemporaneously filed an Affidavit of Attorneys' Fees Incurred with attorneys' time records indicating RTG incurred $133,750.00 in attorneys' fees. Doc. 44-1 at 2. On May 30, 2017, Collier County filed a Notice of Consent as to Entitlement to Attorneys' Fees, indicating Collier County would agree that RTG was entitled to attorneys' fees, conditioned on RTG being the prevailing party following Collier County's appeal to the Eleventh Circuit. Doc. 45. Collier County indicated that notwithstanding the stipulation, it contested the amount of fees sought by RTG. Id. The undersigned entered a Report and Recommendation recommending RTG's motion for attorneys' fees be denied without prejudice with leave to refile within thirty days of the entry of a mandate by the Eleventh Circuit on Collier County's pending appeal, which Judge Chappell adopted over RTG's objections on June 27, 2017. Docs. 46, 51; see also Docs. 49, 50.

The Eleventh Circuit affirmed the Order dismissing the case, and the mandate was entered on February 13, 2018. Docs. 53, 54. On March 8, 2018, RTG re-filed its motion for attorneys' fees, seeking an award of $162,675.00. Doc. 55. Collier County filed a response in opposition, indicating it does not dispute RTG is entitled

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to attorneys' fees but arguing the amount sought is not reasonable. Doc. 57. On April 19, 2018, the Eleventh Circuit transferred a motion for attorneys' fees RTG filed with the appellate court to the district court "for consideration of the issues of entitlement and the reasonable amounts of appellate attorney's fees, if any, to be awarded." Doc. 58; see Doc. 59. Collier County did not respond to the motion at the appellate or district court level, and the time to do so has passed. The matter is ripe for judicial review.

II. Analysis

Parties generally are required to bear their own litigation expenses regardless of who wins or loses. Fox v. Vice, 563 U.S. 826, 832 (2011). Exceptions exist, however, where Congress has authorized courts to deviate from this rule in certain types of cases by shifting fees from one party to another. Id. And "in diversity cases[,] a party's right to attorney's fees is determined by reference to state law." Prime Ins. Syndicate, Inc. v. Soil Tech Distribs., Inc., 270 F. App'x 962, 963 (11th Cir. 2008). Here, RTG argues it is entitled to attorneys' fees incurred at the district court and appellate court levels under Sections 73.091 and 73.131 of the Florida Statutes, respectively. The Court will address each in turn.

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a. Motion for Fees Incurred at District Court Level (Doc. 55)

i. Entitlement to Fees

Under the Florida Constitution, "[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner . . . ." Fla. Const. art. X, § 6. As such, "[i]t is . . . fundamentally clear that full compensation under the Florida Constitution includes the right to a reasonable attorney's fee for the property owner." Joseph B. Doerr Trust v. Cent. Fla. Expressway Auth., 177 So. 3d 1209, 1215 (Fla. 2015). Section 73.091(1) of the Florida Statutes indicates that in eminent domain cases, "[t]he petitioner [seeking condemnation of private land] shall pay attorney's fees as provided in [§] 73.092[,]" and "[n]o prejudgment interest shall be paid on costs or attorney's fees." As discussed below, § 73.092 explains how reasonable attorneys' fees should be calculated.

Florida courts have held that "[a]ttorney's fees incurred in proceedings in the trial court and on appeal that arise out of and are ancillary to the original proceeding in condemnation are . . . payable by the state pursuant to sections 73.091 and 73.131." Schick v. Fla. Dep't of Agric. & Consumer Srvs., 586 So. 2d 452, 454 (Fla. Dist. Ct. App. 1991) (emphasis added) (citing State Dep't of Transp. v. Shaw, 303 So. 2d 75, 77 (Fla. 1st DCA 1974)). A proceeding arises out of or is ancillary to the original condemnation action if it involves a dispute "arising as a direct result of the condemnation proceedings." Seminole Cty. v. Butler, 676 So. 2d 451, 454 (Fla. 5th DCA 1996) (internal quotation marks omitted) (quoting Terry v. Conway Land, Inc., 508 So. 2d 401, 404 (Fla. 5th DCA 1987), approved, 542 So. 2d 362 (Fla. 1989)); see

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also Schick, 586 So. 2d at 453 (finding attorneys' fees incurred during mandamus action compensable under § 73.091 because it was "a proceeding supplemental or ancillary to the condemnation suit necessarily filed to obtain full compensation for the taking of appellant's property as guaranteed by [the Florida Constitution]."); Shaw, 303 So. 2d at 77 (finding attorneys' fees incurred during action to receive replacement housing allowance related to compensation for residential taking compensable under § 73.091 because the suit was "a direct outgrowth of the eminent domain proceeding" that would not have happened but for the taking of the residential property).

Here, it is undisputed that RTG is entitled to recover attorneys' fees. See Doc. 45; Doc. 55 at 9; Doc. 57 at 1. The Honorable Sheri Polster Chappell implicitly acknowledged this case arises out of the original condemnation proceeding:

The Amended Complaint indicates Plaintiff "has paid CVS and RTG the damages awarded in full." Plaintiff had ample time to appeal the state court judgment, but it did not. Plaintiff now brings its claim close to three years later. This is not the typical unjust enrichment claim. Rather, this claim is a

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