Date: 01-25-2002

Case Style: Department of Transportation v. Enterprising Professional Investment Company

Case Number: 2D01-160

Judge: Fulmer

Court: Florida Court of Appeals, Second District

Plaintiff's Attorney: Pamela S. Leslie, General Counsel, and Richard A. Weis, Assistant General Counsel, Tallahassee, for Appellant.

Defendant's Attorney: George N. Meros, Jr., Mark N. Miller, and Lori S. Rowe of Gray, Harris & Robinson, P.A., Tallahassee, Florida, for Appellee.

Description: The Department of Transportation appeals from the award of litigation costs and an expert appraiser's fee to Enterprising Professional Investment Company (EPIC) in an eminent domain proceeding.

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On February 11, 2000, a final judgment was entered that incorporated a jury verdict awarding EPIC $65,000 for the value of land taken and severance damages. The final judgment also reserved jurisdiction to award fees, costs, and interest to be determined by the trial court at a later hearing.

Four months after entry of the final judgment, EPIC filed a Motion to Tax Fees and Costs seeking an expert appraiser's fee and litigation costs incurred. At the hearing on EPIC's Motion to Tax Fees and Costs, counsel for both parties confirmed, upon questioning by the trial judge, that the final judgment award was less than the amount of an offer of judgment made by the Department. The Department argued that because the final judgment award was less than the offer of judgment, EPIC was precluded, under section 73.032(5), Florida Statutes (1999), from recovering any fees or costs incurred after rejection of the offer of judgment. EPIC objected to any reference to the offer of judgment, arguing that the Department had not timely filed a motion for sanctions under Florida Rule of Civil Procedure 1.442(g).2 The Department responded that it was not seeking sanctions as contemplated by the rule.

The trial judge sustained EPIC's objection and ruled that the nonpayment of fees and costs is a sanction, that the Department had not made a timely motion for sanctions pursuant to rule 1.442(g), and, thus, the offer of judgment would not be considered. The Department then sought, unsuccessfully, to state an ore tenus motion for sanctions. The trial court informed counsel for the Department that it would not entertain any ore tenus motions, but that the Department could file the motion later. Upon conclusion of the testimony related to the incurring and reasonableness of the expert fees and litigation costs, the Department renewed its objection.

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Click the case caption above for the full text of the Court's opinion.

Outcome: We reverse because, in determining EPIC's entitlement to costs, the trial court failed to properly apply section 73.032(5), Florida Statutes (1999).

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: E-mail suggested corrections, comments and/or corrections to: Kent Morlan

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