Ward v. Collier County, 2D01-4845.

• Decision Date: 06 August 2003
• Docket Number: No. 2D01-4845.,2D01-4845.
• Citation: Ward v. Collier County, 852 So.2d 892 (Fla. App. 2003)
• Parties: Owen M. WARD, Individually and as Trustee under a Declaration of Land Trust dated June 18, 1986, Appellant, v. COLLIER COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

852 So.2d 892

Owen M. WARD, Individually and as Trusteeunder a Declaration of Land Trust dated June 18, 1986, Appellant, v.COLLIER COUNTY, a political subdivision of the State of Florida, Appellee.

No. 2D01-4845.

District Court of Appeal of Florida, Second District.

August 6, 2003.

Richard D. Yovanovich and Jonathan D. Fishbane of Goodlette, Coleman & Johnson, P.A., Naples, for Appellant.

David C. Weigel, County Attorney, and Heidi F. Ashton, Assistant County Attorney, Naples, for Appellee.

ALTENBERND, Chief Judge.

Owen M. Ward, individually and as trustee under a declaration of land trust dated June 18, 1986, appeals a circuit court order that denies his request for an award of attorneys' fees based upon the value of a nonmonetary benefit his attorneys achieved in the settlement of an eminent domain proceeding.Although we are inclined to believe that the nonmonetary benefit achieved in this case had some economic value, the record supports the circuit court's decision that Mr. Ward did not quantify that benefit with reasonable certainty as required by section 73.092(2)(b), Florida Statutes(2001).

Collier County filed an eminent domain proceeding in 1999 to take a portion of Mr. Ward's property located between Radio Road and Davis Boulevard near the intersection of these two roads.The County sought to take 1.13 acres of this 4.91-acre parcel.The taking would result in Mr. Ward retaining 3.78 acres near this intersection, 3.39 acres of which Mr. Ward could develop.The County initially deposited $221,500 into the registry of the court based upon its estimate of the value of the land taken.See§ 74.051(2), .061, Fla. Stat.(1999).Following discovery and negotiations, the County and Mr. Ward entered into a mediated settlement agreement in March 2001.The County agreed to pay $380,540 for the land.The County also agreed to include a performance clause within the mediation agreement under which it would either complete construction of the improvement project at this intersection on or before September 30, 2002, or pay Mr. Ward $10,000 per month, prorated daily, for the delay.

The County and Mr. Ward agreed that his attorneys were entitled to a statutory fee of $52,483.20 for the monetary component of this award.See§ 73.092(1)(c), Fla. Stat.(2001).They could not agree on the fee, if any, that should be awarded for the inclusion of the performance clause in the mediation agreement.As a result, that dispute was submitted to the circuit court for resolution.Section 73.092(2)(b) permits a circuit court considering the proper award of attorneys' fees in an eminent domain proceeding to "consider nonmonetary benefits obtained for the client through the efforts of the attorney, to the extent such nonmonetary benefits are specifically identified by the court and can, within a reasonable degree of certainty, be quantified."

In order to establish Mr. Ward's right to this fee, Mr. Ward and his real estate appraisal expert both testified that the performance clause in the mediation agreement was worth $100,000 to Mr. Ward because he was anxious to establish a date when the project would be finished and the land could be developed.Although it may be true that Mr. Ward was anxious to develop the project, from our limited record it does not appear that he provided any logical explanation why his desire to develop the property caused this performance clause to have an economic value of $100,000.The circuit court rejected this testimony as an opinion without a proper foundation in fact.¹The circuit court was permitted to disregard this testimony.SeeThompson v. Dep't of Children & Families,835 So.2d 357, 360(Fla. 5th DCA2003)(affirming hearing officer's decision to reject party's expert testimony regarding fair market value; holding trier of fact may accept or reject all or any part of an expert's testimony and is in no way bound by uncontroverted expert opinion...