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House Bill 3313

Florida House of Representatives - 1998 HB 3313 By Representative Ritter 1 A bill to be entitled 2 An act relating to eminent domain; amending s. 3 73.021, F.S.; providing that other actions 4 relating to condemned property may be included 5 in eminent domain actions; providing for joint 6 condemnation actions by two or more condemning 7 authorities; amending s. 73.032, F.S.; 8 providing preemption for rules of the Florida 9 Supreme Court relating to offers of judgment; 10 providing that any party may serve an offer of 11 judgment regardless of the amount at issue; 12 deleting a provision authorizing a defendant to 13 make offers to enter judgment under $100,000; 14 expanding contents of an offer of judgment; 15 excluding attorney's fees in determining 16 certain costs; amending s. 73.051, F.S.; 17 providing for filing written defenses to 18 eminent domain petitions after entry of an 19 order of taking; amending s. 73.0511, F.S.; 20 requiring a fee owner's counsel to be provided 21 prelitigation notice; requiring notice of the 22 Department of Environmental Protection or water 23 management districts; amending s. 73.071, F.S.; 24 requiring a defendant claiming fixtures or 25 trade fixture damages to provide an inventory 26 identifying the items claimed; clarifying the 27 determination of enhancement values in setoff 28 of severance damages; requiring consideration 29 of certain cleanup costs and sources in 30 determining the value of property; prohibiting 31 recovery of special damages under certain 1 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 circumstances; limiting business damages to 2 parties with an actual ownership interest in 3 the property taken; providing criteria; 4 creating s. 73.074, F.S.; providing for the 5 valuation and apportionment of awards relating 6 to condominium units and condominium common 7 elements; creating s. 73.075, F.S.; providing 8 legislative findings; creating s. 73.076, F.S.; 9 providing standards for discovery of documents, 10 property visits, and other items; authorizing 11 presuit settlement offers by the condemning 12 authority and each owner; providing procedures; 13 providing sanctions for failure to comply with 14 presuit discovery requirements; creating s. 15 73.077, F.S.; providing for court ordered 16 mediation; requiring monetary claims to be 17 quantified before mediation; requiring parties 18 to exchange valuation reports and summaries 19 before mediation; providing sanctions for 20 failure to comply with court ordered mediation; 21 amending s. 73.091, F.S.; providing a 22 definition; requiring payment of costs incurred 23 in a sale in settlement of pending 24 condemnation; prohibiting award of certain fees 25 and costs; excluding recovery of certain costs; 26 amending s. 73.092, F.S.; providing for 27 attorney's fees based on certain criteria; 28 providing a definition; requiring the filing of 29 certain information by a condemnee's attorneys; 30 requiring a defendant's attorney to provide for 31 certain fee agreements; amending s. 73.093, 2 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 F.S.; providing for written valuation reports; 2 providing for compensation for certain 3 valuation reports; precluding expert testimony 4 inconsistent with written reports; amending s. 5 73.131, F.S.; exempting a condemning authority 6 from liability for certain costs and attorney's 7 fees; providing conditions for attorney's fees 8 or costs on the appeal of a business damages 9 claim; amending s. 74.031, F.S.; providing for 10 contents of declarations of taking; amending s. 11 74.041, F.S.; eliminating authorization to 12 combine certain summonses for certain purposes; 13 providing that certain petitions are not 14 required to meet certain constructive service 15 requirements; amending s. 74.051, F.S.; 16 requiring a court to enter an order of taking 17 under certain circumstances; providing for 18 budgeting of certain expert witness costs; 19 providing for acquisition of certain property; 20 amending s. 74.071, F.S.; providing for 21 interest on judgments; amending s. 127.01, 22 F.S.; clarifying that counties may condemn land 23 for certain purposes; authorizing state 24 agencies to delegate eminent domain power for 25 programs and projects to local governments 26 under certain conditions; providing an 27 effective date. 28 29 WHEREAS, when a condemning authority acquires property 30 under the powers of eminent domain, the owners are entitled to 31 3 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 full compensation and reasonable costs including attorney's 2 fees, and 3 WHEREAS, when contaminated property is condemned, the 4 cost of cleanup is a factor influencing value and 5 consideration of any monetary sources to defray the cost of 6 contamination cleanup assures that the public pays one time 7 for the cleanup with the owner being fully compensated, and 8 WHEREAS, public improvement projects frequently enhance 9 property values in the general area of the project, and 10 WHEREAS, condominium units, timeshare units, and 11 condominium common areas present unique valuation issues and 12 apportionment of condominium awards assures an equitable 13 distribution of the compensation due unit owners, and 14 WHEREAS, presuit discovery and early mediation of 15 eminent domain proceedings may substantially reduce the 16 court's case load, delay, and costs, including attorney's 17 fees, while preserving each owner's right to compensation for 18 the property acquired, and 19 WHEREAS, when the public pays costs, including 20 attorney's fees, those fees and costs should be objectively 21 measurable and properly reflect the economic benefit that 22 accrues to attorneys and experts paid by the public, and 23 WHEREAS, attorneys and expert witnesses paid by the 24 public benefit from timely payment, assured payment at the 25 outset of the case, and reduced office costs of collection of 26 fees due attorneys and expert witnesses as a result of public 27 payment, and 28 WHEREAS, it is the intent of the Legislature by 29 adoption of this act to assure full compensation to each owner 30 while reducing costs of acquiring property under the powers of 31 eminent domain, NOW, THEREFORE, 4 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 Be It Enacted by the Legislature of the State of Florida: 2 3 Section 1. Section 73.021, Florida Statutes, is 4 amended to read: 5 73.021 Petition; contents.--Those having the right to 6 exercise the power of eminent domain may file a petition 7 therefor in the circuit court of the county wherein the 8 property lies, which petition shall set forth: 9 (1) The authority under which and the use for which 10 the property is to be acquired, and that the property is 11 necessary for that use.; 12 (2) A description identifying the property sought to 13 be acquired. The petitioners may join in the same action all 14 properties involved in a planned project whether in the same 15 or different ownership, or whether or not the property is 16 sought for the same use. A petition may assert alternative 17 claims with regard to requesting partial takings and total 18 takings if the authorizing resolution of the condemning 19 authority provides for such a result and the condemning 20 authority is proposing to undertake a total acquisition under 21 the authority of s. 337.27(2), if the testimony at the hearing 22 on the order of taking justifies a total acquisition of a 23 parcel of property.; 24 (3) The estate or interest in the property which the 25 petitioner intends to acquire, except a petitioner may, under 26 s. 337.27(2), describe an entire lot, block, or tract of land 27 or alternatively describe a portion of the property to be 28 acquired.; 29 (4) The names, places of residence, legal 30 disabilities, if any, and interests in the property of all 31 owners, lessees, mortgagees, judgment creditors, and 5 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 lienholders, so far as ascertainable by diligent search, and 2 all unknown persons having an interest in the property when 3 the petitioner has been unable to ascertain the identity of 4 such persons by diligent search and inquiry. If any interest 5 in the property, or lien thereon, belongs to the unsettled 6 estate of a decedent, the executor or administrator shall be 7 made a defendant without joining the devisee or heir; if a 8 trust estate, the trustee shall be made a defendant without 9 joining the cestui que trust. The court may appoint an 10 administrator ad litem to represent the estate of a deceased 11 person whose estate is not being administered, and a guardian 12 ad litem for all defendants who are infants or are under other 13 legal disabilities; and for defendants whose names or 14 addresses are unknown. A copy of the order of appointment 15 shall be served on the guardian ad litem at least 10 days 16 before trial unless he or she has entered an appearance.; 17 (5) Whether any mobile home is located on the property 18 sought to be acquired and, if so, whether the removal of that 19 mobile home will be required. If such removal shall be 20 required, the petition shall name the owners of each such 21 mobile home as defendants. This subsection shall not apply to 22 any governmental authority exercising its power of eminent 23 domain when reasonable relocation or removal expenses must be 24 paid to mobile home owners under other provisions of law or 25 agency rule applicable to such exercise of power. 26 (6) A statement that the petitioner has surveyed and 27 located its line or area of construction, and intends in good 28 faith to construct the project on or over the described 29 property.; 30 31 6 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (7) A demand for relief that the property be condemned 2 and taken for the uses and purposes set forth in the petition, 3 and that the interest sought be vested in the petitioner. 4 (8) Any other cause of action relating to the property 5 to be condemned, its parent parcel or the property, roadway, 6 or right-of-way which it abuts, in whole or part, including, 7 but not limited to, claims pertaining to environmental matters 8 of any nature. 9 10 Two or more condemning authorities may combine to condemn 11 property. Although the entire property is not necessary for 12 an individual condemning authority's project, the combined or 13 coordinated use of the property to be condemned shall satisfy 14 the requirement that the property be acquired for a public 15 purpose notwithstanding the fact that only one of the 16 condemning authorities acts as the petitioner pursuant to an 17 agreement between the condemning authorities. A condemning 18 authority may exercise the powers of eminent domain granted to 19 the Department of Transportation by s. 337.27(1) and (2) and 20 this section. 21 Section 2. Section 73.032, Florida Statutes, is 22 amended to read: 23 73.032 Offer of judgment.-- 24 (1) This section shall provide the exclusive offer of 25 judgment provisions for eminent domain actions unless the 26 Florida Supreme Court adopts procedural rules to the contrary. 27 (2) Any party The petitioner may serve a defendant 28 with an offer of judgment upon the other party no sooner than 29 120 days after the date the applicable defendant has filed an 30 answer and no later than 20 days prior to trial. 31 7 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (3) A defendant may make an offer to have judgment 2 entered against defendant for payment of compensation by 3 petitioner only for an amount that is under $100,000, and such 4 offer may be served on petitioner no sooner than 120 days 5 after the defendant has filed an answer and no later than 20 6 days prior to trial. 7 (3)(4)(a) The offer of judgment must: 8 1. Be in writing; 9 2. Settle all pending claims in defense of the eminent 10 domain proceeding with that party subject to apportionment 11 claims if there are multiple parties claiming an interest in 12 the land being condemned or parties exclusive of attorney's 13 fees and costs; 14 3. Offers of judgment relating to business damages or 15 other special damages must be made to any party asserting such 16 claims and are subject to apportionment claims if there are 17 multiple parties claiming an interest in the damage claims; 18 4.3. State that the offer is made pursuant to this 19 section; 20 5.4. Name the parties to whom the offer is made; 21 6.5. Briefly summarize any relevant conditions; 22 7.6. State the total amount of the offer; and 23 8.7. Include a certificate of service. 24 (b) The offer of judgment must be served in the same 25 manner as other pleadings upon the parties to whom it is made, 26 but may not be filed with the court unless it is accepted or 27 unless filing is necessary to enforce this section. 28 (c) The offer of judgment shall be deemed rejected 29 unless accepted by filing both a written acceptance and the 30 written offer with the court within 30 days after service of 31 the offer, or before the trial begins if less than 30 days. 8 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 Upon proper filing of both the offer and acceptance, the court 2 shall enter judgment thereon. A rejection of an offer 3 terminates the offer. 4 (d) The party making the offer may withdraw the offer 5 in a writing served on the opposing party before a written 6 acceptance is filed with the court. Once withdrawn in this 7 manner, an offer is void. 8 (e) An offer of judgment which is rejected or which is 9 withdrawn does not preclude the making of a subsequent offer 10 of judgment; however, any such subsequent offer of judgment 11 shall automatically void the prior offer of judgment as if the 12 same had never been made. 13 (4)(5) If a defendant does not accept the offer of 14 judgment made by the petitioner and the judgment obtained by 15 the defendant, exclusive of any interest accumulated after the 16 offer of judgment was initially made, is equal to or less than 17 such offer, then the court shall not award any costs, 18 including attorney's fees, incurred by the defendant after the 19 date the offer of judgment was rejected. 20 (5)(6) If the petitioner rejects the offer of judgment 21 made by defendant and the judgment obtained by defendant, 22 exclusive of any interest accumulated after the offer of 23 judgment was initially made, is equal to or is more than such 24 offer, then the court shall consider such factor in evaluating 25 the difficulty of the case when determining the amount to 26 award as a reasonable attorney's fee to the defendant based on 27 the factors set forth in s. 73.092(2) and (3). 28 (6)(7) At the time an offer of judgment is made by the 29 petitioner, the petitioner shall identify and make available 30 to the defendant the construction plans, if any, for the 31 project on which the offer is based. 9 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (7)(8) Evidence of an offer of judgment is admissible 2 only in proceedings to enforce an accepted offer or to 3 determine the costs to be awarded a defendant pursuant to 4 subsection (5) or a reasonable attorney's fee pursuant to 5 subsection (6). 6 Section 3. Section 73.051, Florida Statutes, is 7 amended to read: 8 73.051 Returns; defaults.--Any person interested in or 9 having a lien upon the property, whether named as a defendant 10 or not, may file his or her written defenses to the petition, 11 as a matter of right, on or before the return date set in the 12 notice or thereafter by leave of court subsequent to the order 13 of taking being entered if the proceedings are under chapter 14 74. If a defendant does not file his or her defenses on or 15 before the return date, defaults may be entered against the 16 defendant, but nothing shall prevent any person who is shown 17 by the record to be interested in the property from appearing 18 before the jury to claim the amount of compensation that he or 19 she conceives to be due for the property. 20 Section 4. Section 73.0511, Florida Statutes, is 21 amended to read: 22 73.0511 Prelitigation notice.-- 23 (1) Prior to instituting litigation, the condemning 24 authority shall notify the fee owners of statutory rights 25 under s. 73.091 or the fee owner's legal counsel if the fee 26 owner is known to be represented by legal counsel. 27 (2) The condemning authority shall notify the 28 department or governing board of a water management district 29 as provided in s. 373.023. 30 Section 5. Section 73.071, Florida Statutes, is 31 amended to read: 10 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 73.071 Jury trial; compensation; severance damages.-- 2 (1) When the action is at issue, and only upon notice 3 and hearing to set the cause for trial, the court shall 4 impanel a jury of 12 persons as soon as practical considering 5 the reasonable necessities of the court and of the parties, 6 and giving preference to the trial of eminent domain cases 7 over other civil actions, and submit the issue of compensation 8 to them for determination, which issue shall be tried in the 9 same manner as other issues of fact are tried in the circuit 10 courts. 11 (2) The amount of such compensation shall be 12 determined as of the date of trial, or the date upon which 13 title passes, whichever shall occur first. 14 (3) The jury shall determine solely the amount of 15 compensation to be paid, which compensation shall include: 16 (a) The value of the property sought to be 17 appropriated.; 18 (b) The cost of cleanup of contamination, if any, on 19 the property shall be considered when determining the value of 20 the property, together with any monetary sources to defray the 21 cost of contamination cleanup that are available to the 22 property owner. 23 (c)(b) Where less than the entire property is sought 24 to be appropriated, any damages to the remainder caused by the 25 taking, including, when the action is by the Department of 26 Transportation, county, municipality, board, district or other 27 public body for the condemnation of a right-of-way, and the 28 effect of the taking of the property involved may damage or 29 destroy an established business of more than 5 years' 30 standing, owned by the party whose lands are being so taken, 31 located upon adjoining lands owned or held by such party, the 11 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 probable damages to such business which the denial of the use 2 of the property so taken may reasonably cause; any person 3 claiming the right to recover such special damages shall set 4 forth in his or her written defenses the nature and extent of 5 such damages, however, if an entire lot, block, or tract of 6 land which encompasses the business is acquired, no special 7 damages shall be allowed.; and 8 (d)(c) Where the appropriation is of property upon 9 which a mobile home, other than a travel trailer as defined in 10 s. 320.01, is located, whether or not the owner of the mobile 11 home is an owner or lessee of the property involved, and the 12 effect of the taking of the property involved requires the 13 relocation of such mobile home, the reasonable removal or 14 relocation expenses incurred by such mobile home owner, not to 15 exceed the replacement value of such mobile home. The 16 compensation paid to a mobile home owner under this paragraph 17 shall preclude an award to a mobile home park owner for such 18 expenses of removal or relocation. Any mobile home owner 19 claiming the right to such removal or relocation expenses 20 shall set forth in his or her written defenses the nature and 21 extent of such expenses. This paragraph shall not apply to 22 any governmental authority exercising its power of eminent 23 domain when reasonable removal or relocation expenses must be 24 paid to mobile home owners under other provisions of law or 25 agency rule applicable to such exercise of power. 26 (e) Business damages are limited to those parties that 27 have an actual ownership interest in the property taken. The 28 party claiming business damages must specifically plead in his 29 or her written defenses to the condemnation petition the exact 30 dollar amount of business damages. The party claiming business 31 damages must also set forth in his or her written defenses the 12 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 specific basis or theory upon which they are claiming business 2 damages. 3 (4) When the action is by the Department of 4 Transportation, county, municipality, board, district, or 5 other public body for the condemnation of a road, canal, 6 levee, or water control facility right-of-way, the 7 enhancement, if any, in value of the remaining adjoining 8 property of the defendant property owner by reason of the 9 construction or improvement made or contemplated by the 10 petitioner shall be offset against the damage, if any, 11 resulting to such remaining adjoining property of the 12 defendant property owner by reason of the construction or 13 improvement. However, such enhancement in the value shall not 14 be offset against the value of the property appropriated, and 15 if such enhancement in value shall exceed the damage, if any, 16 to the remaining adjoining property, there shall be no 17 recovery over against such property owner for such excess. 18 Enhancement need not be unique to the property which is the 19 subject of the condemnation but may be general to the area. 20 It is the intent of the Legislature that property owners not 21 receive windfalls which result from actions of government 22 which benefit property owners by enhancing property values. 23 When the actions of government enhance property values, the 24 enhanced value of the remainder of a parcel of property shall 25 offset any damages resulting to the remainder of a parcel 26 resulting from acquisition by eminent domain. 27 (5) Any increase or decrease in the value of any 28 property to be acquired which occurs after the scope of the 29 project for which the property is being acquired is known in 30 the market, and which is solely a result of the knowledge of 31 the project location, shall not be considered in arriving at 13 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 the value of the property acquired. For the purpose of this 2 section, the scope of the project for which the property is 3 being acquired shall be presumed to be known in the market on 4 or after the condemnor executes a resolution which depicts the 5 location of the project or includes the project in the capital 6 improvements element of a local government comprehensive plan. 7 (6) Any person claiming the right to recover for the 8 taking of, or damages to, fixtures or trade fixtures shall set 9 forth in his or her written defenses an inventory identifying 10 each item claimed as a fixture or trade fixture and the nature 11 and extent of such damages. 12 (7)(6) The jury shall view the subject property upon 13 demand by any party or by order of the court. 14 (8)(7) If the jury cannot agree on a verdict the court 15 shall discharge them, impanel a new jury, and proceed with the 16 trial. 17 Section 6. Sections 73.074, 73.075, 73.076, and 18 73.077, Florida Statutes, are created to read: 19 73.074 Valuation and apportionment related to 20 condominium units and common elements.-- 21 (1) Notwithstanding any other provision of this 22 chapter or any other provision of law, the valuation of 23 condominium units including timeshare units, common elements, 24 and apportionment of compensation with respect to the 25 acquisition of a unit, part of a unit, or an acquisition of a 26 portion of the common elements of a condominium shall comply 27 with the provisions of this section. 28 (2) If a unit or part of a unit including timeshare 29 units, excluding common elements, is acquired by eminent 30 domain, the award must compensate for damages to the unit and 31 its common element interest. Appraisal valuations shall 14 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 separately value the unit or part of a unit including its 2 common element interest when a unit or part of a unit, 3 excluding common elements, is acquired. 4 (3) If part of the common elements is acquired by 5 eminent domain, an appraisal valuation shall value the common 6 elements and damages to the condominium property in respect to 7 all or an abbreviated part of the condominium property as 8 appropriate. Damages to individual units including timeshare 9 units resulting from the acquisition of common elements of 10 condominium property may be apportioned to individual units 11 within the appraisal valuation if the damage to individual 12 units is different in kind or degree from other units within 13 the condominium property. 14 (4) The declaration or bylaws of a condominium 15 association may provide for the apportionment of any award for 16 an acquisition of all or a part of the condominium property. 17 (5) Unless otherwise provided in the declaration or 18 bylaws of a condominium association, any compensation for the 19 acquisition of all or part of condominium property shall be 20 apportioned as follows: 21 (a) Each unit owner shall be awarded the entire award, 22 or apportioned share as to timeshare units, for the 23 acquisition of all or part of an individual unit and for 24 damages to the unit when all or part of the individual unit is 25 acquired. 26 (b) If the declaration or bylaws establish limited 27 common areas, the award for limited common elements shall be 28 apportioned to the unit owners of the units to which the use 29 of those limited common elements is restricted in proportion 30 to their respective percentage interests in the limited common 31 elements. 15 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (c) Any award for the acquisition of general common 2 elements shall be allocated to all unit owners in proportion 3 to their respective percentage interest in the general common 4 elements. 5 73.075 Legislative findings and intent.-- 6 (1) The Legislature makes the following findings: 7 (a) The costs of condemnation proceedings have 8 increased in recent years, present post-litigation discovery 9 and mediation practices have contributed to increased costs 10 for acquiring property necessary for road construction and 11 other public improvement projects. 12 (b) The high cost of condemnation proceedings can be 13 substantially alleviated by quantifying the claims of owners 14 early in the proceedings, by presuit discovery of information 15 and documents, and by early mediation of claims, thereby 16 reducing delay and costs, including attorney's fees, while 17 preserving each owner's right to compensation for the property 18 taken and special damages. 19 (c) The intent of presuit discovery and court-ordered 20 mediation is to encourage prelitigation negotiations, 21 voluntary exchange of information and documents related to the 22 determination of compensation due each owner, mediated 23 settlements, and to deter discovery and mediation abuse in 24 condemnation proceedings, and to protect condemning 25 authorities, the public, and property owners from unnecessary 26 litigation. 27 73.076 Presuit discovery of condemnation claims and 28 making presuit settlement offers.-- 29 (1) After written notice of pending condemnation 30 proceedings is provided to the fee owners by the condemning 31 authority, each owner and the condemning authority shall 16 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 provide to the other party reasonable access to the property 2 and information within its possession or control in order to 3 facilitate evaluation of compensation due each owner, 4 negotiated settlements, and mediation. 5 (2) Access to the property and information shall be 6 provided without formal discovery and the failure of any party 7 to comply with presuit discovery shall constitute evidence of 8 failure of that party to comply with good faith presuit 9 discovery requirements and the court shall impose appropriate 10 sanctions, including payment of the costs of the discovery, 11 the disallowance of payment of all or part of the costs 12 including attorney's fees under s. 73.091, or other sanctions 13 appropriate to discovery abuse. 14 (3) By written request after the notice of pending 15 condemnation proceedings, the condemning authority and each 16 owner shall request discovery of documents or things. The 17 documents or things must be produced within 30 days after the 18 date of receipt of the request. The condemning authority and 19 each owner are required to produce discoverable documents and 20 things within that party's possession or control. 21 (4) The condemning authority may conduct property 22 visits and request information and documents relating to any 23 owner's property and business interests, including, but not 24 limited to, leases, financial, and business records kept by 25 each owner in the ordinary course of business, trade fixture, 26 and equipment inventories and other information and documents 27 related to valuation of each owners' interests in the property 28 sought to be condemned. The owners may in writing request that 29 the condemning authority provide related right-of-way maps, 30 construction plans, and other information and documents 31 related to the property sought to be condemned. 17 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (5) It shall not be grounds to refuse property visits 2 or information or documents on the basis that they are not yet 3 completed or available. 4 (6) Within 60 days following the production of 5 documents or things under this section, the condemning 6 authority and each owner shall each serve written settlement 7 offers with supporting documentation on the other. If there 8 are multiple owners of the land being condemned or multiple 9 interests in business damages or other special damages, then 10 settlement offers shall be made subject to apportionment among 11 the multiple interests. 12 (7) Following service of the settlement offers, the 13 condemning authority and owners are encouraged to engage in 14 voluntary negotiations and mediation to achieve presuit 15 settlements or sales in settlement of pending or threatened 16 condemnation proceedings. 17 (8) The written settlement offers made under this 18 section shall not be admissible in any subsequent proceeding. 19 (9) The actual costs of presuit discovery shall be 20 paid by the condemning authority unless an owner fails to 21 comply with the requirements of this section. A failure of 22 the condemning authority or any owner to comply with this 23 section shall constitute evidence of failure of that party to 24 comply with good faith presuit discovery requirements and the 25 court shall impose appropriate sanctions, including requiring 26 an owner to pay costs of presuit discovery, the disallowance 27 of payment of all or part of the costs, including attorney's 28 fees under s. 73.091, or other sanctions appropriate to a 29 failure to comply with discovery practice. 30 73.077 Court ordered mediation.-- 31 18 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (1) Upon motion by the condemning authority or any 2 owner, the court shall refer all valuation issues to 3 mediation. The parties may submit a list of recommended 4 mediators to the court. The court, after consideration of the 5 lists of recommended mediators, shall appoint a qualified 6 mediator. The costs of mediation shall be paid by the 7 condemning authority unless a party fails to comply with the 8 requirements of this section. 9 (2) At least 20 days prior to the date of the 10 mediation, the condemning authority and each owner shall file 11 with the court, the mediator, and serve each other with a 12 mediation statement stating with particularity: 13 (a) The experts employed in the case, and the areas of 14 expertise. 15 (b) The condemning authority shall quantify its 16 monetary position and each owner shall quantify its claims by 17 dollar amount specific to each element of compensation, 18 including the amount to be paid for the property taken, and 19 when applicable, the damage to the remainder caused by the 20 taking, business damages, moving costs, separate compensation 21 for permanent improvements made by a mobile home owner under 22 s. 73.072, or other special damages. 23 (3) At least 20 days prior to the date of the 24 mediation, the condemning authority and each owner shall 25 mutually exchange written valuation reports prepared by 26 valuation experts. 27 (4) Failure of the condemning authority or any owner 28 to comply with this section shall constitute evidence of 29 failure of that party to comply with good faith mediation 30 requirements and the court shall impose appropriate sanctions, 31 including requiring an owner to pay the costs of mediation, 19 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 costs of discovery, the disallowance of payment of all or part 2 of the costs, including attorney's fees under s. 73.091, or 3 other sanctions appropriate to a failure to comply with 4 mediation practice. 5 Section 7. Subsections (1) and (2) of section 73.091, 6 Florida Statutes, are amended, and subsections (6), (7), (8), 7 (9), and (10) are added to said section, to read: 8 73.091 Costs of the proceedings.-- 9 (1) The petitioner shall pay attorney's fees as 10 provided in s. 73.092 as well as all reasonable costs, 11 including attorney's fees, incurred in the defense of the 12 eminent domain proceedings in the circuit court, including, 13 but not limited to, reasonable appraisal fees and, when 14 business damages are compensable, a reasonable accountant's 15 fee, to be assessed by that court. As used in this chapter, 16 the term "costs in the defense of the eminent domain 17 proceedings" means costs incurred in defeating an order of 18 taking or, in the event of a taking, costs limited to the 19 determination of the value of the land acquired. 20 (2) At least 30 days prior to a hearing to assess 21 costs under this section, the condemnee's attorney shall 22 submit to the condemning authority for each expert witness 23 complete time records and a detailed statement of services 24 rendered by date, nature of services performed, time spent 25 performing such services, and costs incurred, and a copy of 26 any fee agreement which may exist between the expert and the 27 condemnee or the condemnee's attorney. 28 (6) Costs, including, but not limited to, attorney's 29 fees and other fees, shall not be awarded for time, work, or 30 effort directed toward the amount of fees or costs to be 31 20 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 awarded unless the condemning authority denies entitlement to 2 the costs. 3 (7) Costs in defense of the eminent domain proceedings 4 may include costs, including attorney's fees actually incurred 5 in a sale in settlement of any pending or threatened 6 condemnation proceedings. 7 (8) Attorneys and experts entitled to fees resulting 8 from a sale in settlement of any pending or threatened 9 condemnation proceeding shall have a statutory cause of action 10 in the circuit court to determine reasonable fees. 11 (9) Costs in defense of the proceedings shall not 12 include travel expenses of attorneys and experts except where 13 it is shown that a lack of attorneys or expertise exists in 14 the judicial circuit where the petition was filed. 15 (10) Costs in defense of the eminent domain 16 proceedings shall not include office expenses of attorneys and 17 expert witnesses, such as, but not limited to, travel 18 expenses, postage, copy costs, facsimile expenses, express 19 delivery, courier services, long distance telephone service, 20 tolls, computer research costs, and other similar office 21 expenses. Court reporter services and exhibit preparation 22 when the exhibits are actually used at a mediation, 23 evidentiary hearing, or trial shall be compensable if 24 necessarily incurred in defense of the eminent domain 25 proceeding. 26 Section 8. Section 73.092, Florida Statutes, is 27 amended to read: 28 (Substantial rewording of section. See 29 s. 73.092, F.S., for present text.) 30 73.092 Attorney's fees.-- 31 21 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (1) In assessing attorney's fees incurred in defense 2 of eminent domain proceedings, inverse condemnation, or 3 prelitigation settlement of any pending or threatened 4 condemnation proceeding, the court shall consider: 5 (a) An objective determination of the attorney's time 6 reasonably required to adequately represent the owner and the 7 reasonable hourly rate for attorneys in the community in cases 8 in which fees are not contingent upon the success of the 9 claim. 10 (b) The skill employed by the attorney in conducting 11 the cause. 12 (c) The "result obtained" by the attorney's work 13 efforts. The term "result obtained" means the difference, 14 exclusive of interest, between the final judgment or 15 settlement and the total compensation claim of the defendant 16 based on the defendant's written appraisals, business damage, 17 and other valuation reports. 18 (d) The responsibility incurred and fulfilled by the 19 attorney. 20 (e) The novelty, difficulty, and importance of the 21 questions involved, including whether an order of taking was 22 defeated, whether the case went to trial, whether the parties 23 participated in voluntary negotiations and mediation, and 24 other similar matters. 25 (2) In assessing costs, including attorney's fees, at 26 least 30 days prior to a hearing on costs the condemnee's 27 attorney shall file with the court and serve on the condemning 28 authority: 29 (a) Complete time records for each attorney and expert 30 witness including a detailed statement of services rendered by 31 22 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 date, nature of services performed, time spent performing such 2 services and actual costs incurred. 3 (b) An itemized statement indicating the amount of 4 money recovered as compensation, including the property 5 acquired, severance damage, business damages, and each element 6 of special damages claimed and a similarly itemized accounting 7 of the amount of money claimed by the owner in the proceeding. 8 (3) As an exhibit to any motion for costs, including 9 attorney's fees, the defendant's attorney shall provide to the 10 condemning authority and the court a copy of any fee agreement 11 that may exist between the defendant and his attorney and the 12 defendant and each expert. 13 Section 9. Section 73.093, Florida Statutes, is 14 created to read: 15 73.093 Valuation reports in eminent domain 16 proceedings.-- 17 (1) Property appraisers, including fixture appraisers, 18 shall prepare written reports and comply with the requirements 19 of chapter 475. Business damage experts shall prepare written 20 reports and comply with the requirements of Florida 21 Administrative Code, Rule 61 HI-20.0098. Experts relied upon 22 by appraisers, fixture appraisers, business damage experts or 23 other valuation experts, such as, but not limited to, 24 marketing analysts, engineers, planners, and surveyors, shall 25 be referenced in the written valuation reports with the 26 written marketing surveys, reports, plans, surveys, or other 27 reference material of the expert relied upon attached as an 28 appendix to the appraisal, fixture appraisal, business damage, 29 or other valuation report. Written reports prepared in 30 compliance with this section shall satisfy the requirements of 31 s. 119.07. 23 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (2) Upon trial or any evidentiary proceeding, all 2 parties shall be limited in their affirmative proof of value 3 to matters set forth in their respective appraisal, fixture 4 appraisal, business damage, or other valuation reports. Any 5 party who fails to exchange written appraisal, business 6 damage, or other valuation reports for court ordered 7 mediation, or prior to filing a notice or motion for trial 8 shall be precluded from offering any testimony on value as to 9 the element of compensation being valued. 10 (3) The owner may obtain one written valuation report 11 by a real property appraiser and one report by a fixture 12 appraiser and business damage expert, if those elements of 13 damage are compensable. If record title exists in more than 14 one person or if a business is owned by more than one person, 15 then the condemning authority shall not be required to 16 reimburse more than one owner for valuation reports unless 17 multiple reports are ordered by the court or required in 18 apportionment proceedings. 19 (4) Upon motion of any party, the court may, upon good 20 cause shown, relieve a party of a default in exchanging 21 valuation reports, extend the time for exchanging reports, or 22 allow an amended or supplemental report to be exchanged upon 23 such conditions as the court may direct. The court may 24 compensate the owner for more than one valuation report upon 25 good cause shown with consideration given to the number of 26 reports and types of reports prepared by the condemning 27 authority. 28 Section 10. Subsection (2) of section 73.131, Florida 29 Statutes, is amended, and subsection (3) is added to said 30 section, to read: 31 73.131 Appeals; costs.-- 24 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (2) The petitioner shall pay all reasonable costs of 2 the proceedings in the appellate court, including a reasonable 3 attorney's fee to be assessed by that court, except upon an 4 appeal taken by a defendant in which the judgment of the lower 5 court shall be affirmed, or upon an appeal taken by a 6 defendant or defendant's attorneys or experts relating to 7 costs, including attorney's fees, unless the condemning 8 authority denies entitlement to attorney's fees or other 9 costs. 10 (3) No attorney's fees or costs shall be awarded on an 11 appeal of a business damages claim unless the property owner 12 prevails, regardless of which party appeals the trial court's 13 decision. 14 Section 11. Section 74.031, Florida Statutes, is 15 amended to read: 16 74.031 Declaration of taking; contents.--Those having 17 the right to take possession and title in advance of the entry 18 of final judgment in eminent domain actions, as provided by 19 law, may file, either with the petition or at any time prior 20 to the entry of final judgment, a declaration of taking signed 21 by the petitioner, or its duly authorized agent or attorney, 22 stating that the property sought to be appropriated is thereby 23 taken for the use set forth in the petition. A declaration of 24 taking made under s. 337.27(2) may describe an entire lot, 25 block, or tract of land and alternatively describe a portion 26 of the property to be acquired. The petitioner shall make a 27 good faith estimate of value, based upon a valid appraisal of 28 each parcel in the proceeding, which shall be made a part of 29 the declaration of taking. 30 31 25 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 Section 12. Subsection (3) of section 74.041, Florida 2 Statutes, is amended, and subsection (4) is added to said 3 section, to read: 4 74.041 Process; service and publication.-- 5 (3) The petition date provided in this section may be 6 combined with the summons to show cause and the published 7 summons provided in s. 73.031, but In no event shall the 8 petition date provided in this section be noticed for a date 9 earlier than 1 day following the date specified in the summons 10 to show cause and the published summons provided in s. 73.031 11 for the defendants to serve written defenses to the petition 12 in eminent domain proceedings and, if a defendant requests, a 13 hearing on the petition for order of taking. 14 (4) A petitioner who complies with the requirements of 15 this section is not required to comply with the constructive 16 service requirements of chapter 49. 17 Section 13. Subsections (1) and (2) of section 74.051, 18 Florida Statutes, are amended, and subsections (4) and (5) are 19 added to said section, to read: 20 74.051 Hearing on order of taking.-- 21 (1) If a defendant requests a hearing pursuant to s. 22 74.041(3), said defendant may appear and be heard on all 23 matters properly before the court which may be determined 24 prior to the entry of the order of taking, including the 25 jurisdiction of the court, the sufficiency of pleadings, 26 whether the petitioner is properly exercising its delegated 27 authority, and the amount to be deposited for the property 28 sought to be appropriated. Any defendant failing to timely 29 file a request for hearing, failing to comply with presuit 30 discovery, or failing to serve a settlement offer under s. 31 73.076 shall waive any right to object to the order of taking, 26 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 and title shall be vested in the petitioner, upon deposit as 2 hereinafter provided, which date shall be the date of 3 valuation. 4 (2) If a hearing is timely requested, the court shall 5 make such order as it deems proper, securing to all parties 6 the rights to which they may be entitled, not inconsistent 7 with the provisions of this section. If no defendant makes a 8 timely request for hearing, or if a defendant fails to comply 9 with presuit discovery or fails to serve a settlement offer, 10 the court shall enter the order of taking. The court may make 11 such orders in respect of encumbrances, liens, rents, taxes, 12 assessments, insurance, amount of the good faith deposit, and 13 other charges, if any, as shall be just and equitable. If the 14 court finds that the petitioner is entitled to possession of 15 the property prior to final judgment, it shall enter an order 16 requiring the petitioner to deposit in the registry of the 17 court such sum of money as will fully secure and fully 18 compensate the persons entitled to compensation as ultimately 19 determined by the final judgment. Said deposit shall not be 20 less than the amount of the petitioner's estimate of value, if 21 the petitioner be the state or any agency thereof, any county, 22 the city, or other public body; otherwise, double the amount 23 of petitioner's estimate of value. 24 (4) At the hearing for an order of taking, each 25 defendant filing an answer shall identify each expert by area 26 of expertise necessary to determine the value of the property 27 taken and damage to the remainder, as well as each special 28 damage claim of that defendant. Each defendant shall propose 29 a cost budget for consideration by the court. After 30 consideration of the experts proposed, the areas of expertise, 31 the possible use of joint experts by one or more defendants, 27 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 and the defendants' proposed cost budgets, the court shall 2 establish a monetary cost budget for each defendant which may 3 include use of joint experts by one or more defendants. The 4 cost budget shall not be exceeded; however, upon good cause 5 shown, a defendant may move the court for additional expert 6 witnesses or an increase in the cost budget. The court shall 7 enter such orders as the court deems proper to manage expert 8 costs while securing to all parties the rights to which they 9 are entitled. 10 (5) If a declaration of taking describes an entire 11 lot, block, or tract of land and alternatively describes a 12 portion of the property to be acquired, the court shall 13 determine whether the acquisition costs for an entire lot, 14 block, or tract of land will be equal to or less than the 15 court of acquiring a portion of the property. If the court 16 finds that the petitioner is entitled to acquire an entire 17 lot, block, or tract of land, the court shall enter an order 18 requiring the petitioner to deposit in the registry of the 19 court such sum of money as will fully secure compensation to 20 persons entitled to compensation. If the court finds that the 21 petitioner is not entitled to acquire an entire lot, block, or 22 tract of land, the court shall upon affirmative proof of 23 public purpose and necessity, determine what portion, if any, 24 of the property may be acquired and enter an order requiring 25 the petitioner to deposit such sum of money as will fully 26 secure compensation to persons entitled to compensation. The 27 jury shall determine solely the amount of compensation to be 28 paid for the property acquired under the court's order of 29 taking. 30 Section 14. Section 74.071, Florida Statutes, is 31 amended to read: 28 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 74.071 Paying over funds in court.--At any time, prior 2 to the entry of final judgment, and upon motion by the proper 3 defendants, the court may direct that the sum of money set 4 forth in the declaration of taking be paid forthwith to such 5 defendants from the money deposited in the registry of the 6 court. If the compensation awarded for the property by the 7 final judgment shall exceed the amount withdrawn by the 8 defendant, the court shall enter judgment against the 9 petitioner for the deficiency with interest, at the same 10 interest rate as provided in all circuit court judgments, 11 running from the date of withdrawal. If the amount withdrawn 12 exceeds the compensation awarded for the property by the final 13 judgment, the court shall enter a judgment against such 14 defendant for the excess, and such judgment shall be a lien 15 against any of the defendant's property except his or her 16 homestead. 17 Section 15. Paragraph (a) of subsection (1) of section 18 127.01, Florida Statutes, is amended, and subsection (3) is 19 added to said section, to read: 20 127.01 Counties delegated power of eminent domain; 21 recreational purposes, issue of necessity of taking.-- 22 (1)(a) Each county of the state is delegated authority 23 to exercise the right and power of eminent domain in the 24 interest of the public health, safety, and welfare of the 25 county and for the county land acquisition program; that is, 26 the right to appropriate property, except state or federal, 27 for any county purpose. The absolute fee simple title to all 28 property so taken and acquired shall vest in such county 29 unless the county seeks to condemn a particular right or 30 estate in such property. 31 29 CODING: Words stricken are deletions; words underlined are additions. Florida House of Representatives - 1998 HB 3313 585-114A-98 1 (3) Each agency of the state may delegate its eminent 2 domain powers for programs or projects within its jurisdiction 3 to the counties and municipalities of the state. Such 4 delegation shall occur pursuant to an intergovernmental 5 agreement between the parties. 6 Section 16. This act shall take effect upon becoming a 7 law. 8 9 ***************************************** 10 HOUSE SUMMARY 11 With respect to eminent domain, revises provisions 12 relating to: condemned property actions, joint condemnation actions, preemption for rules of the Florida 13 Supreme Court, offers of judgment, written defenses to eminent domain petitions, prelitigation notice, 14 determination of property values, recovery of special damages, county condemnation of land, state agency 15 delegation of eminent domain power to local governments, valuation and apportionment of awards relating to 16 condominium units and condominium common elements, standards for discovery, presuit settlement offers, court 17 ordered mediation, payment of settlement costs, written valuation reports, costs and attorney's fees, 18 declarations of taking, expert witness costs, and interest on judgments. 19 20 21 22 23 24 25 26 27 28 29 30 31 30