Opinion
Case No. 1D03-2506.
Opinion filed June 3, 2004.
An appeal from the Circuit Court for Nassau County, Brian J. Davis, Judge.
Pamela S. Leslie, General Counsel, and Gregory G. Costas, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellant.
William S. Graessle of William S. Graessle Associates, P.A., Jacksonville, for Appellee.
Appellant, the Department of Transportation (DOT), appeals from two orders awarding supplemental fees and costs to the landowner, appellee Nassau Partners, Ltd., in an eminent domain proceeding. We affirm the first two issues relating to Nassau's entitlement to fees and costs, but reverse and remand the order granting its motion to tax reasonable costs as to parcels 209/805, with directions to the lower court to make explicit findings justifying the awards therein entered, as required by section 73.091(5), Florida Statutes (2001).
Following the entry of a stipulated final judgment, the landowner filed two motions, one to tax the reasonable costs of expert witnesses in defense of the proceeding as to parcels 209/805, and one to tax supplemental costs and attorney fees associated with the expenses of the hearing pertaining to the prior motion. One hearing was held as to both motions. In regard to the first motion, although DOT stipulated as to the reasonableness of an expert's fee on behalf of the owner in preparing a property appraisal, it disputed its responsibility to pay expert witness fees for an engineering consultant and a land-planning expert hired by the landowner for assistance with the condemnation proceeding, on the ground that the owner had incurred no contractual obligation to pay its experts for their efforts, and thus DOT could not acquire any obligation for same. We disagree.
Initially, we observe that the issue of an owner's entitlement to fees in an eminent domain proceeding is reviewed by a de novo standard, whereas the amount of fees awarded is reviewed by that of abuse of discretion. See Univ. of Fla., Bd. of Trustees v. Sanal, 837 So.2d 512 (Fla. 1st DCA 2003); Thomas v. Perkins, 723 So.2d 293 (Fla. 3d DCA 1998). The amount of fees is not at issue before us. Looking solely to the pertinent provisions of sections 73.091 and 73.092, Florida Statutes (2001), it is clear that a contractual obligation need not exist between the condemnee and those it employs to defend the public taking.
Section 73.091(1) makes it clear that the condemning authority is obligated to pay the condemnee's attorney's fees and expert-witness fees. For the purpose of establishing expert-witness fees, subsection (2) requires the landowner's attorney to submit supporting evidence such as time records and a complete statement of services. Such evidence may include "a copy of any fee agreement which may exist between the expert and the condemnee or the condemnee's attorney." (Emphasis added.) It is obvious from the above that a fee agreement is not essential. Subsection (4) also states: "In assessing costs to be paid by the petitioner [condemning authority], the court shall be guided by the amount the defendant would ordinarily have been expected to pay for the services rendered if the petitioner were not responsible for the cost." Identical provisions are found in section 73.092(3), (4), and (5) regarding proof of attorney's fees. These provisions unmistakably manifest the legislative intent that the condemnor be required to pay expert-witness and attorney's fees, regardless of whether there is an agreement between the expert and the landowner.
We similarly reject DOT's argument that we should not follow this court's opinion in Amoco Oil Co. v. Department of Transportation, 765 So.2d 111 (Fla. 1st DCA 2000), stating that a post-judgment costs hearing is included within "other supplemental proceedings" contemplated by section 73.092(2), at which any cost related to the taking, whether or not generated by conflicting claims to the compensation awarded, may be considered. Although we agree with DOT that the language in Amoco relating to the consideration of non-conflicting claims at a supplemental hearing was not essential to the holding in the case and was consequently dictum, we find nothing in the court's interpretation at variance with the statutory provisions. We also note that the Second District has expressly followed Amoco in Enterprising Professional Investment Corp. v. Department of Transportation, 29 Fla. L. Weekly D555 (Fla. 2d DCA Mar. 5, 2004) (holding that a post-trial proceeding to recover attorney's fees and costs under section 73.091(1) is a "supplemental proceeding" under section 73.092(2)). We therefore affirm the trial court's two post-judgment orders, insofar as they find entitlement to reasonable expert witness fees for services rendered to the landowner in defense of the condemnation proceeding, as well as fees and costs associated with the litigation over the entitlement of the experts to the payment of reasonable fees.
Subsection (2) provides that "[i]n assessing attorney's fees incurred in defeating an order of taking . . . or other supplemental proceedings, when not otherwise provided for, the court shall consider" certain enumerated factors.
In its argument under the second issue, DOT asserts that the condemnee has no right to an award of costs for time incurred in litigating the amount of fees, and it relies on cases so holding. See Seminole County v. Chandrinos, 816 So.2d 1241 (Fla. 5th DCA 2002); Dep't of Transp. v. Patel, 768 So.2d 1173 (Fla. 2d DCA 2000). It is clear from the record before us, however, that DOT was in fact disputing the owners' entitlement to such awards, thereby necessitating the hearing on the motions for costs and fees.
We do agree with DOT that the lower court erred by failing to make the findings required by section 73.091(5), when it entered the order granting the motion to tax reasonable costs as to parcels 209/805. Section 73.091(5) specifically states: "The court shall make specific findings that justify each sum awarded as an expert witness fee." (Emphasis added.) What "specific findings" means is an issue of first impression.
In the above order, the court listed only the total amount awarded each expert. In contrast, in the Order Taxing Supplemental Attorney's Fees And Costs, the court listed the hours, rate, and total fee owed to each expert. DOT does not challenge the latter order, and it appears from subsections (2), (3), and (4) of section 73.091 that these are the findings necessary for an award of expert-witness fees. The case must therefore be remanded as to the awards entered in the order granting expert witness fees as reasonable costs as to parcels 209/805 for the purpose of reciting the findings required by the statute. The orders are otherwise affirmed.
AFFIRMED in part, REVERSED in part, and REMANDED.
WOLF, C.J., and VAN NORTWICK, J., CONCUR.
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED