In General Commercial Properties, Inc. v. Florida Dep't of Transportation, No. 4D14-0699 (Fla. Dist. App. Oct. 14, 2015), the court held that a statute which requires the trial court to use the "first written offer" by the condemnor made prior to the initiation of the eminent domain case as the benchmark when it is calculating attorneys' fees, does not mean that the DOT is stuck with a very early offer it made under the "Early Acquisition Program."
Under this program, the DOT made early offers to owners for properties it wanted to acquire. There was no obligation on the part of the owners to sell. As the court phrased it, it was an "arms-length negotiation[]" with no eminent domain threat. (Yeah, right.) This was supposedly outside the usual eminent domain-related acquisition program, and if the owner said no thank you, there was nothing the DOT could have done. So in 2005, DOT made such an offer for $400,000 to the owner, who said no thank you.
Nearly a decade later, DOT filed a condemnation action to take the property, making an offer of $699,000. That too was rejected, and after trial, the final judgment awarded the owner $800,000.
Under Florida's fee-shifting statute, the owner sought attorneys' fees keyed to the EAP offer of $400,000. The statute allows recovery of fees based on the difference between the "first written offer" and the final award, and that early offer was the "first written offer" according to the property owner.
The court of appeals said no, there's a difference between the EAP written offer and the first written offer made during the condemnation process, since the EAP offer is really more like an attempt to purchase (without the threat of eminent domain), and not like the sell-or-else "negotiations" that occur precondemnation.
Besides (and this is what we think really convinced the court of appeals), the DOT's EAP offer contained the condition that it was not to be used for calculating attorneys' fees, and the property owner agreed.
General Commercial Properties, Inc. v. State of Florida Dep't of Transportation, No. 4D14-6099 (Fla. D...
