Reverse Chronology

January 27, 2010. As the Third DCA granted our motion for appellate attorneys' fees in this case, to be determined by the trial court, the State requested copies of our time and billing worksheets a couple of weeks ago. Today we received compromise offers from the State that are about 35% less than our billed hours. Looks like this issue is headed for an evidentiary hearing.

January 25, 2010. With no amicable resolution in sight, the "interest-on-interest," or "delay damages," issue has been set for a hearing before Judge Garcia on March 4, 2010, at 10:45 AM.

January 20, 2010. The trial Court, Garcia, J., approved the disbursement of the State's $8,854,580.34 deposit, despite the unresolved "interest-on-interest" issue, and the Clerk's office cut the check on Friday, January 22, 2010. Finally, 15 years after this eminent domain proceeding was filed in 1995, it has come to an end.

January 5, 2010. The State of Florida deposited $8,854,580.34 into the registry of the Court, as its calculation of the Just Compensation and attorneys' fees owed to the landowners in the West/Richardson eminent domain case. (Attorneys' fees are paid directly to counsel according to statute, and do not come out of the landowners' award.) The State's deposit did not include $273,268.47 in delay damages (or, as the State argues, interest-on-interest) incurred up to January 5, 2010. This issue will be taken up in supplemental proceedings before the trial court. The District Court of Appeal also awarded appellate attorneys' fees to landowners' counsel. If the State refuses to honor counsel's bills, these amounts will be determined by the trial court.

December 16, 2009. For two days we have been corresponding with opposing counsel regarding the amount of interest to be paid to the Landowners in the West/Richardson case. One issue was readily resolved by statute. Fla. Stat. 55.03 requires a losing party to pay interest on a judgment, usually involving an appeal, at the statutory rate in effect on the date of the judgment. In this case, the 2008 statutory interest rate was 11%, and that rate applies until the judgment is paid. A second issue, that has not been resolved, is characterized by the State as "interest-on-interest." Our argument is that "pre-judgment interest" is not "interest" per se, but simply represents liquidated damages for delay in payment. In these cases, the State paid small sums to "quick-take" the subject properties in 2004 ($550,000 for Parcel 1, $80,000 for Parcel 7). When the jury verdicts came in at $5.05 million and $450,000, in 2008, the State became liable for the shortages -- and the landowners were entitled to additional compensation based on what that money would have been worth to them had it been paid in 2004. We contend, and the treatises agree, that this amount is not "interest," but is really delay damages. Most litigants use the state statutory interest rules as a proxy for delay damages, because it is easier than putting on an expert witness, but that does not make the sum awarded "interest."

December 11, 2009.  Motions Denied in DEP v West, et al. On December 2, 2009, the 3d District Court of Appeal denied the State's Motion for Rehearing and for Certification of Conflict. See Order. On December 4, 2009, the State's attorney sent us emails that strongly suggest the State has no intention to pursue a request for discretionary review by the Florida Supreme Court. The Third DCA will issue its mandate on December 17, 2009, and the State will then have 30 days in which to file a "petition for discretionary review," or to January 18, 2010.

November 16, 2009.  We served a 4-page Response to the State's Motion for Rehearing, etc. The State's Motion for Rehearing brings nothing new to the table. This is a "deer-in-the-headlights" situation, in which the State cannot believe that the Florida and United States Constitutions can require it to compensate landowners at the "fair market value" that would have existed if the government, itself, had not destroyed the market.

November 6, 2009. Yesterday, the State filed a Motion for Rehearing with the 3d District Court of Appeal. The State also asked the 3d DCA to "certify conflict" with a decision from another Florida appellate court. (Read the State's Motion for Rehearing and Certification.) Motions for Rehearing are rarely granted, and the 3d DCA has a long history of not certifying conflict. (A "certification of conflict" improves one's chances the Florida Supreme Court will review a decision.)

On October 8, 2008, when Judge Garcia signed the final judgments in this case, the State was on the hook for $8,659,197, that included $630,000 deposited with the trial court in 2004, pre-judgment interest, and attorneys' fees. As of yesterday, 393 days of post-judgment interest has increased that sum by $714,413, to $9,373,610. Presuming the DEP is dissatisfied with the 3d DCA's response to yesterday's motions, and seeks "discretionary review" by the Florida Supreme Court, we estimate the supreme court's denial of review will not occur until April 21, 2010 (based on the identical scenario in the Collins appeal earlier this year). If so, the State's outlays will total $9,677, 190 ($1,017,993 due only to the appeal).

October 21, 2009. Landowners in the Florida Keys have something to cheer about today, as the Third District Court of Appeal affirmed Judge Luis Garcia's courageous decision to require the jury in DEP v West, et al., to value undeveloped (and undevelopable) North Key Largo land as if it had the "highest and best use" it had in 1982 -- before the State began a series of development moratoria (on February 9, 1982) on North Key Largo, that remain in place today, 27 years later! The Third DCA's opinion demonstrates that the Landowners' "Condemnation Blight" argument was correct, and Judge Garcia's decision to enforce it was the right thing to do.

The final judgments were rendered October 8, 2008, with $5,060,000 awarded to the West heirs and $480,000 to Richardson and UNCIA, for a total of $5,540,000. As of today, the State's appeal has cost it over $631,000 in interest (at 11%) that it must pay to the landowners, plus attorneys' fees. (Attorneys' fees are awarded separately in eminent domain actions in Florida.) Of course, the State has the option of filing a "petition for discretionary review" with the Florida Supreme Court. That process, based on our recent analysis of discretionary review cases, takes an average of six months (at 11% interest). And only 11% of such petitions were successful in the 12 months preceding July 2009.

June 22, 2009. Oral argument was had Monday, June 22, 2009, in Key West. The Third District Court of Appeal's panel consisted of Chief District Judge David Gersten, District Judge Leslie Rothenberg, and District Judge Richard Suarez. Chief Judge Gersten and Judge Suarez were on the panel a year ago, also in Key West, in Collins, et al., v. Monroe County and Shands v. City of Marathon. The panel had read the briefs and were not impressed with the State's theory that the North Key Largo properties had been "taken" by regulations first adopted in 1982, the 4-year statute of limitation had run in 1986, and the State should be able to acquire the properties without paying anything. Chief Judge Gersten asked the State's lawyer, Joe Spejenkowski, whether his theory was "fair." Mr. Spejenkowski responded with "no, it's not fair."

June 12, 2009. The State served its Reply Brief. It's not much to look at, just a string of pot-shots and a complete misunderstanding of the law.

May 29, 2009. Landowners served their Answer Brief. The State's Initial Brief argues that North Key Largo landowners, whose properties were subject to 15 development moratoria from 1982 until the present, had been "taken" by the State in 1982, and that the statute of limitation for such a regulatory taking ran in 1986. The State relies on the trial court's Condemnation Blight Order, that finds the Landowners had been "deprived of all beneficial use" of their land since February 9, 1982, as a result of the continuing series of moratoria. The State argues that  the phrase, deprived of all beneficial use, means that a "categorical" regulatory taking took place in 1982, i.e., as in Lucas v. South Carolina Coastal Council (1992). Had anyone read the Supreme Court's regulatory taking decisions since 1992, they would have discovered the 2002 Tahoe-Sierra decision. That decision held "development moratoria" are "temporary regulatory takings," and cannot be "categorical" (Lucas) takings. There is also a body of regulatory takings case law that makes it clear "temporary takings" do not accrue (which is when the statute of limitation starts to run), until the temporary taking ends.  In this case, the temporary takings ended when the State acquired the subject properties in 2004, nine years after this lawsuit was filed. An Appendix to the Answer Brief includes the trial court's Condemnation Blight Order.

May 21, 2009. The District Court of Appeal set this case for oral argument 9:30 AM, Monday, June 22, 2009, in Key West. Argument will be limited to 10 minutes per side (which usually means the court does not think this is a complex case). The arguments will be in the new County Courthouse, a/k/a the Freeman Justice Center, 2nd Floor, Courtroom C, 302 Fleming Street, Key West, FL. (Behind the old courthouse.) The District Court also extended the deadline to file the Answer Brief to June 1, 2009.

May 15, 2009. The Third District Court of Appeal -- after waiting the requisite 15 days for a response -- granted our April 27, 2009, Motions to Supplement and Correct the Record. Not surprisingly, counsel for the State of Florida chose not to respond to our motions. We computed our filing deadline to be May 25, 2009.

April 27, 2009. We took a closer look at the State's Initial Brief as we finished assembling the 13-year Record on Appeal. (This eminent domain case was filed in 1995, tried in 2008, and the record fills three file drawers.) We confirmed the State had improperly moved to include two expert witness deposition transcripts -- that had neither been introduced in evidence nor considered by the trial court -- into the ROA. And then proceeded to quote liberally from those non-record transcripts in its Initial Brief. We also discovered the State had not filed a key transcript of the pretrial "Condemnation Blight" hearing -- that is the basis of its appeal. When we realized the State had filed transcripts of only two of the three hearings on our Condemnation Blight motion in limine, and the State's counsel refused to give us a copy or agree to have it added to the ROA, we had a problem. Under the circumstances, we felt it was necessary to file a Motion to Correct the Record, that would strike the two non-record deposition transcripts from the ROA, and a Motion to Supplement the Record with the hearing transcript the State is attempting to hide. In addition, we needed to place the depositions of Ed Swift and Ken Sorensen, two former County Commissioners -- that were introduced into evidence during the Condemnation Blight hearings -- into the ROA.

April 24, 2009. The State served an objection to our yet-unwritten Motion to Supplement the ROA with the January 31, 2007 transcript.

April 20, 2009. Appellees requested another 15-day extension of time, to May 5, 2009. On April 24, 2009, we received a copy of the transcript of the third (Jan. 31, 2007) Condemnation Blight hearing. This transcript confirms some issues concerning the record on appeal (ROA) that we need to bring to the District Court's attention; either in our Brief or by Motion to Strike. We will also have to supplement the ROA with the January 31, 2007 transcript and the depositions of former Commissioners Swift and Sorensen.

April 3, 2009. Appellees requested a 15-day Extension of Time for serving the Answer Brief, to April 21, 2009. The State had no objection, and Counsel for the State requested an Extension of Time, in advance, for service of its Reply Brief, to which Appellees had no objection.

March 3, 2009. Appellees requested a 30-day Extension of Time in which to serve their Answer Brief.

February 9, 2009. The State of Florida served its Initial Brief.

January 2, 2009. Counsel for the State, Joe Spejenkowski, filed a Motion to Supplement the Record, and a companion motion for an extension of time to serve his Initial Brief. We wondered about his supplementation of the record with deposition transcripts that were never made part of the record (i.e., were not introduced in evidence). But we will deal with that after we get the transcripts of the Condemnation Blight hearings.

October 30, 2008. Not unexpectedly, the State filed Notices of Appeal of both the West and Richardson Final Judgments. The State's Initial Briefs are due 70 days from the Notices of Appeal, or January 8, 2009. I can attest that nobody ever gets their Briefs in "on time." And, the Third DCA is known for its liberal policy on requests for extensions of time. Fortunately for the former landowners, these judgments are earning interest at 11% per year until paid.

October 8, 2008. Judge Garcia entered judgments totaling $6,877,257 plus costs and attorneys fees as Just Compensation for the West and Richardson parcels. The West heirs were awarded $5,050,000 plus $1,848,114 interest, for the States 2004 condemnation of 21 acres (+5.6 acres of submerged land). Richardson, et al., were awarded $450,000 plus $149,142 interest, for a 4-acre parcel. Yet neither parcel has had any development rights since 1983, when the County began a series of rolling development moratoria in the Keys. In 1986, the State and County adopted a one-year moratorium on all development on North Key Largo (except Ocean Reef, Anglers Club, and some subdivisions). The 1986 moratorium remains in effect today over 22 years after it was imposed.

June 2, 2008. The former (as the State did a "quick-take" in 2004) Landowners filed a Motion for New Trial in this case, based on information that the jury did not apply the correct law in reaching its verdict. The State filed a Motion for entry of a "gag order" to prevent us from revealing this fact on this website or my Blog site. On June 18, 2008, Judge Garcia DENIED the gag order motion.

May 19-22, 2008. The DEP v. West, et al., and Richardson, et al. , eminent domain trial took place before a 12-person jury, in Judge Garcia's courtroom on Plantation Key. The jury's verdicts were $5,060,000 for the West Parcel and $450,000 for the Richardson parcel -- 9.2 and 5.6 times the State's deposits. The State's attorneys vowed to appeal.

May 9, 2008. Judge Garcia set the case for trial from May 19 -- 23, 2008.

August 31, 2007. Judge Garcia heard the State's Motion for Clarification. State wanted to be able to reduce 2004 appraisal by arguing effect of Federal regulations enacted after February 1982. Judge Garcia entered an Order clarifying his order, stating that regulations in effect on February 8, 1982, are to be presumed in effect on date of taking in 2004.

April 9, 2007. On April 9th, Judge Garcia entered a 23-page Order Granting Defendants' Motion in Limine on the Issue of Condemnation Blight. The following is only an excerpt of the Order.

The Court ORDERS the parties to value the subject properties at the Fair Market Value[1] they would have had on the dates of the de jure takings (Parcel 1: March 17, 2004; Parcel 7: April 21, 2004), had the Countys and States legislative enactments and regulations, in effect on February 8, 1982, been in effect on the dates of the de jure takings. The parties may not raise by testimony, nor make any statements to the jury, regarding the effect of any County or State enactment or regulation, promulgated, enacted, or amended after February 8, 1982. The jury shall be instructed to determine the Fair Market Value of each parcel as of the de jure takings in Spring 2004, according to the highest and best uses they would have had on February 8, 1982.

The parties are ORDERED to exchange their witness lists and copies of their appraisers and other experts reports, within 45 days after entry of this Order. Unless excepted by the Court, the parties shall not be permitted to present testimony to the jury that is not contained in their experts reports. The parties shall have fifteen (15) days following the exchange of appraisal reports to file motions in limine directed to those reports. The Court is aware that experts reports usually contain hearsay, and experts reports that contain hearsay are inadmissible in evidence. Should a party intend to move admission of an appraisal report, that party shall file a motion in limine to that effect at least 15 days before the first scheduled commencement of trial.

[1] Fair Market Value does not include sales to government, conservation entities, or third-parties whose purpose in purchasing land is to garner points by agreeing to transfer said acquisitions for less than what they paid for them. The parties are ORDERED to use, as comparable sales, arms-length transactions between private parties for properties outside of the North Key Largo area. The parties comparable sales may not include transactions that are affected in any way by any restrictions on land use that were not part of the zoning regulations applicable to North Key Largo properties on February 8, 1982.

January 31, 2007. Judge Garcia conducted a third hearing on the Condemnation Blight motion. In addition to oral argument, Landowners' counsel raised, by a Motion to Reconsider Evidentiary Ruling, the fact that the State had admitted some 27 documents that the court had declined to admit into evidence at the September 15, 2006, evidentiary hearing. In light of the admissions, Judge Garcia reversed his earlier ruling.

September 15, 2006. Following the first two hearings before 16^th Circuit Judge Luis Garcia, the State and Landowners finished all but their closing legal arguments on the landowners' claim that North Key Largo land (outside Ocean Reef) has been subjected to "condemnation blight" for 25 years, and that the State of Florida was at least equally responsible for the development moratoria and downzonings that have continued since February 1982. Their arguments will be heard at a hearing yet to be scheduled, and the jury trial in this case will be #1 on the March 2007 docket.

There were three hearings on the Motion in Limine, on August 2, 2006, September 15, 2006, and January 31, 2007. The initial cause for delay was unavailability of two key witnesses, Ken Sorensen and Ed Swift, who were Monroe County Commissioners from 1980-84 and 1982-86, respectively. After their depositions were taken, a second, evidentiary hearing was had on September 15, 1986, where expert witnesses Donald L. Craig, AICP, and Robert Gallaher, MAI, testified, and the former Commissioners' depositions were introduced in evidence.

September 10, 2006. This 1995 "slow take" case is headed for a compensation decision within the next few months. The State tip-toed into buying this property for 9 years until 2004, when it figured out that real estate values were rising. Judge Garcia will decide whether the State must pay for these North Key Largo properties under the land development regulations in effect in 1982, or those in effect in 1995 (when the eminent domain action was filed). In either case, the properties will be valued as if the owners could build, in 2004, what they could have built under the regulations in effect in 1982 or 1995. The difference is substantial. The issue also has a name "condemnation blight." 

March 14, 2006. We dismissed the Regulatory Taking Counterclaim. It was no longer needed to prevent the State from "walking away" from a slow-take.

April  2004 October 2005. Hearings on our Motion for Partial Summary Judgment were set and cancelled. The Condemnation Blight issue was argued on October 3, 2005. The State insisted the issue was not properly before the court, as it should be characterized as a Motion in Limine rather than a Motion for Partial Summary Judgment. The Court agreed to "re-hear" the motion as a Motion in Limine.

March 9 & April 21, 2004. The State converted its slow-takes into quick-takes by depositing $550,000 into the court's registry for Parcel 1, and $80,000 for Parcel 7. In both instances, the State stipulated that we retained the right to litigate our Condemnation Blight claims. See the Parcel 1 Order of Taking (West, et al.) and the Parcel 7 Order of Taking (Richardson and UNCIA).

November 18, 2003. Landowners filed a Motion for Summary Judgment on Liability on the Regulatory Taking Claim, and on the issue of Condemnation Blight, and filed a Statement of Uncontested Facts.

1997-2002. The case meandered on, with discovery, mediation, two changes of lawyers on the State's side, and not much else. (See the Court's Docket Sheet.) Eventually, on November 13, 2002, Judge Garcia set the case for jury trial on March 17, 2003, but later cancelled that order. (By then, this had become the oldest case on his docket.)

September 9, 1996. The state offered $200,000 or $250,000 for Parcel 1. I do not remember what they offered for Parcel 7, but it wasn't much. (The owners of Parcel 14 settled on November 22, 1996.)

1996. Parcel 1's owners and Mr. Richardson, co-owner of Parcel 7, retained Mattson & Tobin. We filed Answers to the State's Petition, in which we alleged that  Condemnation Blight had  depressed the value of the subject properties and more importantly filed Counterclaims for Regulatory Takings against the State. The Counterclaims were intended to protect the landowners from the government abandoning its condemnation action after the jury verdict came in.

Note: The State's condemnation action was a "slow-take." In a slow-take, the government retains the option to abandon the condemnation if the jury verdict is higher than they wanted to pay. In  "quick-take," the government deposits into the registry of the Court what it "estimates" is the Fair Market Value (FMV) of the property and title promptly passes to the condemning authority. In a quick-take, the government cannot abandon the condemnation later, regardless of the jury verdict.

March 24, 1995. The State of Florida filed a Petition in Eminent Domain to acquire two acreage tracts on North Key Largo.  Parcel 1, 21 acres of uplands and 6 acres of submerged land, runs from CR-905 to the Atlantic Ocean. Parcel 7 consists of about four upland acres and two acres of submerged land, north of the first tract, and abutting the ocean. The larger tract is owned by heirs of the original owner. We will identify the heirs as "West-Freeman." Parcel 7 is owned by R Furman Richardson and UNCIA, a Panamanian corporation. We refer to these owners as "Richardson." There were two owners of a Parcel 14, that consisted of two platted lots in the Largo-Edmar Subdivision, the same subdivision that contained the Richardson parcel as  unplatted acreage.