Fla. Dep't of Agric. & Consumer Servs. & the Fla. Comm'r of Agric. v. Bogorff
| Decision Date | 22 January 2014 |
| Docket Number | No. 4D12–1550.,4D12–1550. |
| Citation | 132 So.3d 249 |
| Parties | FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and The Florida Commissioner of Agriculture, Appellants, v. Toby BOGORFF, et al., Appellees. |
| Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
Wesley R. Parsons and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for appellant.
Robert C. Gilbert of Grossman Roth, P.A., Coral Gables and Jamie Alan Cole of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Fort Lauderdale, for appellees.
The Department of Agriculture appeals an award of attorney's fees in a class action for inverse condemnation in which the class prevailed. Primarily, it argues that the court erred by not using the “benefits achieved” standard of section 73.091, Florida Statutes (2009), when the Department made a “written offer” to the class members by sending each of them a letter enclosing an application for compensation provided under section 581.1845, Florida Statutes (2001). We hold that the letter was not a written offer as contemplated by the statute. With the exception of fees incurred by the class attorney representing other clients in related litigation, we affirm the award. With respect to costs, we reverse the expert witness fee incurred in providing testimony as to the amount and reasonableness of the fee, as this is not a recoverable cost.
To combat citrus canker disease, a threat to the commercial citrus industry, the Department developed a citrus canker eradication program (CCEP), which was eventually enacted into statute in section 581.1845, Florida Statutes (2001). It provided for the destruction of citrus trees within a 1900–foot radius of any tree infected with the canker virus. Haire v. Department of Agriculture, 870 So.2d 774, 778–80 (Fla.2004), documents the history of eradication efforts in Florida.
The plaintiffs, homeowners who owned trees which the Department destroyed, brought a class action for inverse condemnation of all the residential citrus trees destroyed in Broward County under CCEP. The trial court certified a class, which this court affirmed in Florida Department of Agriculture and Consumer Services v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002).
While class certification was pending, a couple in Miami, the Patchens, brought an action for inverse condemnation of their citrus trees. In that case, the trial court granted summary judgment to the Department, which the Third District affirmed in Patchen v. State Department of Agriculture and Consumer Services, 817 So.2d 854 (Fla. 3d DCA 2002)( Patchen I ), holding that the Department was not liable for compensation for destroying uninfected trees within the 1900–foot radius of an infected tree. The court relied on Department of Agriculture and Consumer Services v. Polk, 568 So.2d 35 (Fla.1990), which held that trees, within the radius of an infected tree, for which the Department compelled destruction, had no marketable value. Because the ruling in Patchen I would have eliminated compensation in this suit, class counsel filed an amicus brief on behalf of the class in the Third District court. When that court certified a question to the supreme court, class counsel then represented the Patchens before the supreme court. The supreme court held that the rule of Polk did not apply to homeowners who were entitled to seek compensation pursuant to section 581.1845, Florida Statutes (2004). See Patchen v. Fla. Dep't of Agric. & Consumer Servs., 906 So.2d 1005, 1008 (Fla.2005)( Patchen II ).
The class action in Broward County then proceeded to a non-jury trial in which the trial court determined that a taking had occurred when the Department destroyed the homeowners' uninfected citrus trees. A jury trial followed to determine just compensation for the taking. The jury awarded $11,531,463 in compensation for the trees, less the $7,196,370 which the Department had already paid out as compensation based upon section 581.1845, Florida Statutes (2001), and the Department's earlier Shade Tree Program, resulting in a net verdict of $4,335,093. Class counsel then moved for attorney's fees. 1
Subsequently, the Department appealed the final judgment in Department of Agriculture and Consumer Services v. Bogorff, 35 So.3d 84 (Fla. 4th DCA 2010). This court affirmed on all issues raised by the Department. We also awarded class counsel attorney's fees on appeal.
When the case returned to the trial court, the trial court conducted a five day hearing on attorney's fees, in which the property owners requested an award of fees for the entire ten year period of litigation. The Department argued that fees should be computed under the sliding scale of section 73.092(1), Florida Statutes (2009), rather than under the multi-factor analysis of section 73.092(2), Florida Statutes (2009). Section 73.092(1) requires that an attorney's fee award be based solely on the benefits received by the property owner, measured from the condemning authority's last written offer to the property owner prior to the owner hiring an attorney. The Department contended that it made written offers when it sent applications for the statutorily authorized payments and Shade Florida debit cards to all of the affected property owners in Broward County.
The Department sent two different letters to homeowners on whose property the Department destroyed citrus trees during the CCEP. The record is unclear as to when the first letter was sent, but it advised homeowners of the opportunity to obtain a replacement tree through the Shade Florida program authorized by the State of Florida and United States Department of Agriculture. Homeowners could receive plastic cards which would allow them to purchase new trees at Wal–Mart if they would return a completed postcard. This letter never mentioned compensation nor any other rights the homeowner may have for destruction of the trees.
The Department sent the second letter after the Legislature had enacted section 581.1845, Florida Statutes (2001). This letter was sent after the class in this case was certified. The letter advised the homeowner of a cash payment allowed for destroyed trees by virtue of the enactment of section 581.1845. Homeowners could participate in the program by returning a postcard with necessary information in order to receive the payment. In bold, the letter said, “By signing the postcard and receiving the payment, you do not waive your right to participate in litigation that may arise as a result of the Citrus Canker Eradication Program.”
The trial court rejected the Department's position that the letters were “written offers” within the meaning of section 73.092(1). Not only did it find that the offer of Shade Tree cards was “gratuitous,” it also relied on the testimony of Deputy Commissioner of Agriculture Craig Meyer, who was in charge of the CCEP. Meyer testified that the cash payments and Shade Tree cards were the Legislature's effort to show “respect” to the homeowners who lost their trees. In other words, he maintained that the payments were not compensation for the destroyed trees.
Alternatively, the Department also argued that class counsel's compensation should be limited by the rules of professional conduct and the contract between one member of class counsel and one client. The court also dismissed these contentions.
In two orders, one 12 pages long and one 57 pages long, which thoroughly analyzed all of the issues, the trial court ultimately awarded attorney's fees using the multi-factor analysis of section 73.092(2). The court awarded $4,245,445.75 for 7890.76 hours of work performed by multiple attorneys. The court used the hourly rates to which the plaintiffs' expert testified, as those rates were close to the hourly rates charged by most of class counsel for non-contingent matters. Based on the Supreme Court's decision in Perdue v. Kenny A., 559 U.S. 542, 556, 130 S.Ct. 1662, 176 L.Ed.2d 494 (2010), the court used the class counsels' current hourly rates, rather than historic rates, to calculate the amount of fees. The Department appeals the final judgment awarding fees.
Just as the state must pay for the landowner's attorney's fees in cases where it initiates a taking of private property, so too must the state pay attorney's fees when a property owner proves that the state has taken the landowner's property in an inverse condemnation case. See Schick v. Dep't of Agric. & Consumer Servs., 599 So.2d 641, 642 n. 3 (Fla.1992). Because the right to fees in an eminent domain proceeding is statutory, fees awarded in an inverse condemnation also must be determined within the statutory framework of section 73.091 and 73.092. Id. Section 73.092 contains two different methods of determining attorney's fees in eminent domain proceedings. Section 73.092(1) provides that attorney's fees must be calculated based upon benefits achieved:
(1) Except as otherwise provided in this section and s. 73.015, the court, in eminent domain proceedings, shall award attorney's fees based solely on the benefits achieved for the client.
(a) As used in this section, the term “benefits” means the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney. If no written offer is made by the condemning authority before the defendant hires an attorney, benefits must be measured from the first written offer after the attorney is hired.
The statute also provides in 73.092(2) for a multi-factor analysis in cases where section 73.092(1) does not apply:
(2) In assessing attorney's fees incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for, the court shall consider:
(a) The novelty, difficulty, and importance of the questions involved.
(b) The skill...
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