Florida Gas Transmission Company, LLC v. Sylvia Johnson

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-863
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FLORIDA GAS TRANSMISSION
COMPANY, LLC,

Appellant,

v.

SYLVIA JOHNSON,

Appellee.
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On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

February 5, 2019

PER CURIAM.

Florida Gas Transmission (“FGT”) appeals a final order
awarding attorney’s fees related to a protracted eminent domain
action. FGT argues the trial court erred in awarding attorney’s
fees pursuant to subsection (2), rather than subsection (1), of
section 73.092, Florida Statutes (2018). We agree and reverse.

FGT is a natural gas transmission pipeline company which
sought to construct and operate a pipeline on Johnson’s property.
On or about January 13, 2010, FGT submitted a written offer to
Johnson, offering $12,127.80 as full compensation for the
easement it required for construction of a pipeline. Johnson
rejected the offer, and FGT filed a Petition in Eminent Domain on
April 5, 2010. On June 9, 2010, the parties filed a Joint Motion for
Entry of a Stipulated Order of Taking, which reduced the scope
and size of the taking from what was originally anticipated. It was
not until August 15, 2017, that the parties filed a Joint Motion for
Entry of Proposed Final Judgment in which FGT ultimately
agreed to pay Johnson $420,000.00. Thereafter, Johnson filed a
Motion to Tax Fees and Costs. Johnson argued FGT’s initial offer
of $12,127.80 was invalid as the scope of the easement changed
following the offer, and that the attorney’s fee award under
subsection (1) of the statute was unconstitutionally low.
Ultimately, the trial court awarded Johnson hourly attorney’s fees
pursuant to subsection (2) of the statute in the amount of
$611,441.50.

On appeal, FGT argues the trial court erred by calculating
attorney’s fees pursuant to section 73.092(2), the lodestar method,
rather than section 73.092(1), the benefits achieved method, as
there is no valid offer. Section 73.092(1) provides, in pertinent
part:

(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 . . . .

Under subsection (1), once the benefits achieved is
determined, a formula is applied to determine the attorney’s fees
owed. § 73.092(1)(c), Fla. Stat. Under subsection (2), a defendant
may be awarded attorney’s fees “incurred in defeating an order of
taking, or for apportionment, or other supplemental proceedings”
using the lodestar method. § 73.092(2), Fla. Stat.

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 Based on the plain reading of the statute, the benefits
achieved method must be applied where there is a written offer
and subsequent final judgment. However, section 73.092 does not
define what constitutes a “written offer.” Here, Johnson argues
the initial offer submitted by FGT is not a valid offer because there
was a change in the scope of the easement after the offer was made.
However, we are constrained by this Court’s decision in JEA v.
Williams, 978 So. 2d 842 (Fla. 1st DCA 2008), and, thus, must
disagree.

In JEA, JEA argued attorney’s fees should be based on the
difference between the third offer and the settlement obtained,
claiming the first offer “sought to acquire a different interest on
the original property and less total property than the final taking.”
Id. at 845. This Court affirmed the lower court’s order holding the
first letter offering to purchase an easement was a written offer in
pre-suit eminent domain proceedings for the purposes of
calculating attorney’s fees. Id. at 846. This Court held:

[S]uch a construction is not supported by the text of
section 73.092 and judicial interpretation of the statute is
not appropriate where the language of the statute is clear
and unambiguous. Section 73.092 states that attorney’s
fees are computed based on the difference between the
last written offer before the landowner has hired counsel
and the final judgment. As such, this Court is bound to
give effect to the statute’s clear and unambiguous
language.

Id. at 845-46 (internal citations omitted). Thus, based on JEA, this
Court finds the offer in the instant case was valid at the time it
was made, and a subsequent change to the scope of the easement
did not invalidate the offer.

As the initial offer was valid for the purposes of calculating
attorney’s fees under the benefits achieved method, the trial court
erred in applying the lodestar method set forth in subsection (2) of
the statute. On remand, the trial court should calculate the
attorney’s fees owed utilizing the benefits achieved method.
However, should the trial court find on remand additional
attorney’s fees were incurred by Johnson in supplemental
proceedings, additional fees may be awarded for the time spent
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related to those issues. Additional fees arising from supplemental
proceedings should be awarded pursuant to the lodestar method.
We do not address the issue of whether application of the benefits
achieved method is unconstitutional, as applied, as the issue was
not ruled on by the trial court and, thus, is not before us.

We REVERSE and REMAND for further proceedings consistent
with this opinion.

MAKAR, WINOKUR, and M.K. THOMAS, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Ethan J. Loeb, Jon P. Tasso, and Michael J. Labbee of Smolker,
Bartlett, Loeb, Hinds & Thompson, P.A., Tampa, for Appellant.

Michael J. Tomkiewicz, Gino Luzietti, and Ashley H. Lukis of
GrayRobinson, P.A., Tallahassee; James W. Anderson and Jeffrey
H. Savlov of Savlov & Anderson, P.A., Tallahassee, for Appellee.

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