State, Dept. of Transp. v. Skidmore

720 So. 2d 1125, 1998 Fla. App. LEXIS 13883, 1998 WL 765377
CourtDistrict Court of Appeal of Florida
DecidedNovember 4, 1998
Docket97-4219
StatusPublished
Cited by17 cases

This text of 720 So. 2d 1125 (State, Dept. of Transp. v. Skidmore) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State, Dept. of Transp. v. Skidmore, 720 So. 2d 1125, 1998 Fla. App. LEXIS 13883, 1998 WL 765377 (Fla. Ct. App. 1998).

Opinion

720 So.2d 1125 (1998)

STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant,
v.
Robert J. SKIDMORE, Appellee.

No. 97-4219.

District Court of Appeal of Florida, Fourth District.

November 4, 1998.
Rehearing Denied December 21, 1998.

*1126 Pamela S. Leslie and Marianne A. Trussell, Tallahassee, for appellant.

Jack J. Aiello and Leigh E. Dunston of Gunster, Yoakley, Valdes-Fauli & Stewart, P. A., West Palm Beach, for appellee.

POLEN, Judge.

The Florida Department of Transportation ("DOT") timely appeals three final orders awarding $900,000 in attorney's fees, $52,180 in taxable costs, and $56,400 in expert appraisal costs in favor of Robert Skidmore ("Skidmore"). With the exception of certain taxable costs awarded, we reverse the orders.

This case arises out of an eminent domain proceeding necessitated by the building of the Roosevelt Bridge in Stuart. Skidmore owned several parcels of land near the bridge. He first learned of DOT's plan to condemn four of those parcels in February, 1992. Those parcels included the Doss Pier and, according to DOT, several thousand square feet of illegally filled sovereignty submerged lands. DOT initially offered Skidmore $285,500 for the parcels at issue. Rejecting the offer, Skidmore hired the law firm of Gunster, Yoakley, Valdes-Fauli & Stewart, P.A. ("Gunster Yoakley") to represent him.

In December, 1992, DOT filed eminent domain proceedings, but dropped the issue of the filled lands. In February, 1993, DOT issued its Order of Taking irrespective of the filled lands and deposited $883,950, its good faith estimate of value, into the court registry.

By 1994, DOT changed its strategy. In July, 1994, one month before trial was supposed to begin, it re-raised the filled lands issue in an appraisal report, and also decided to rebuild Doss Pier instead of taking it on a fee simple basis. As a result, DOT's proposed compensation to Skidmore decreased from $883,950 to $205,000. Based on these *1127 changes in strategy, which Skidmore later unsuccessfully fought through a motion in limine, the court continued trial.

In March, 1995, the trial court entered an order to show cause why the case should not be dismissed for failure to join the Florida Department of Environmental Protection ("DEP") as an indispensable party with respect to the filled lands issue. Skidmore then filed a third party complaint against DEP and the Trustees of the Internal Improvement Fund. In June, 1996, DEP and Skidmore settled their dispute, whereby Skidmore acquired clear title to 13,000 square feet of the 22,000 square feet of land DOT claimed was illegally filled. After a five-day jury trial between DOT and Skidmore in May, 1997, the jury awarded Skidmore $810,750 for the overall taking, requiring Skidmore to return roughly $73,000 of DOT's good faith deposit.

In October, 1997, the trial court held a three-day evidentiary hearing on Skidmore's motions for attorney's fees, expert fees, and costs. It was undisputed that Skidmore's total monetary benefits were $525,250, the difference between the jury verdict of $810,750 and DOT's initial offer of $285,500. Skidmore's expert appraiser, Burl Wilson, testified Skidmore also received at least $700,000 in nonmonetary benefits, consisting primarily of the reconstruction and return of the Doss Pier. He also cited other, unquantifiable nonmonetary benefits, including promises made by DOT to Skidmore at trial regarding allowable uses under the Bridge and within its easement across the river.

DOT argued the Skidmore's attorneys spent an excessive amount of time (3,974.5 hours) on this case. In contrast, Skidmore's expert, Robert Byrne, testified that the total number of hours of attorney's time was reasonable, and, at a blended hourly rate of $200, yielded a lodestar figure of $794,900. He also opined that the 1,184.6 hours of certified legal assistant time was reasonable and, when multiplied by a standard hourly rate of $90, yielded $106,560 in additional fees. Thus, he opined that the total of the combined hours and rates, $901,460, which he rounded to $901,000, was reasonable. Byrne testified that, in arriving at this amount, he also considered the complexity of the case, skill involved, and his opinion that Skidmore received a $700,000 nonmonetary benefit from the rebuilding of the Doss Pier.

DOT's expert, Weiner, disagreed with Byrne's approach and figures. Weiner testified that a reasonable fee in this case was $423,000. He arrived at this amount by first taking 33% of the benefit, multiplying that number by two, adding the lodestar amount, which he determined was $919,000, and dividing that sum by three. He also opined that Skidmore did not receive any nonmonetary benefits from the giving back of Doss Pier because Skidmore fought DOT's plans to replace the pier. In any event, he testified that $423,000 was reasonable because it constituted 80% of $525,250, which he believed was Skidmore's total benefit.

Skidmore also sought $54,062.50 in fees and $584.76 in costs for work performed by Klusza & Associates ("Klusza") in the valuation. While Skidmore's experts testified that Klusza assisted Skidmore's attorneys in determining value and litigation strategy, DOT argued that Klusza merely assisted with litigation strategy.

After considering all of the evidence, the court concluded that Skidmore received at least $700,000 in nonmonetary benefits due to the reconstruction and giving back of Doss Pier. It further found that his attorneys should be compensated for the time in dealing with the "filled lands" issue because it found that the issue was "vigorously pursued by DOT in an attempt to reduce the compensation to be paid Skidmore." In this regard, it concluded that DOT and its experts fueled the claim by communicating directly with the other agencies and causing the issue to be pursued. Opining that the issue would not have arisen but for DOT's actions in the case, the court determined that the filled lands issue was an "ancillary issue arising out of the eminent domain case and upon which attorneys' fees should be paid."

The court also found that Skidmore's paralegals contributed substantial non-clerical, meaningful legal support to the representation of Skidmore and that DOT should be responsible for a reasonable fee for those *1128 services. It found that assistants provided similar support to DOT, but for which no time records were kept.

Based on these factors and Byrne's calculations, it determined the lodestar amount to be $900,000. It rejected Weiner's contrary computations, finding that the method he used was outdated and that he failed to consider any nonmonetary benefits obtained for Skidmore. It noted that, in any event, Weiner's lodestar calculation was slightly higher than Byrne's calculation. In all, it decided not to adjust the $900,000 figure upward or downward based on the $1.225 million in benefits it found Skidmore's attorneys obtained.

The court also reviewed Skidmore's detailed receipts and statements for costs, which Skidmore claimed totaled $75,180.80. In awarding Skidmore $52,180.86 in costs, it reduced only the 4% surcharge that Gunster Yoakley's lawyers testified the firm regularly charged its clients for copying, long-distance telephone charges, and postage, from $36,799.90 to $13,799.96. It awarded the full sums Skidmore sought for travel, mileage, food, and hotel expenses for trial, and for miscellaneous photocopies.

Finally, the court rejected DOT's argument that Klusza served only in a litigation consultant capacity and, therefore, that DOT should not have to pay its appraisal costs.

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720 So. 2d 1125, 1998 Fla. App. LEXIS 13883, 1998 WL 765377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-dept-of-transp-v-skidmore-fladistctapp-1998.