More than one year ago the Florida Supreme Court held Oral Arguments on the case of Marvin Castellanos v. Next Door which challenges the constitutionality of statutory attorney’s fees in workers’ compensation.  After one year no decision, which to me it means that a decision has been written but some Justices are working on dissents and concurrences.  This is obviously guessing on my part but I clerked at the Florida Supreme Court and at the Third District Court of Appeal, and based on my experience there this is my only explanation for taking so long.

But which way will the Supreme Court rule?  Who knows but it is interesting that the Florida Supreme Court last week issued an opinion on fees in the case of Joseph B. Doerr Trust, et. al. v. Central Florida Expressway Authority (Case No. SC14-1007).  The case involved fees in an eminent domain case.  Attorney’s fees in eminent domain cases are controlled by Section 73.092 of the Florida Statutes.  Note that such section provides for attorneys’ fees based on “benefits achieved,” and further delineates a statutory fee percentage based on such “benefits achieved.”  Sounds familiar?

The case involved facts where the condemning authority engaged in tactics causing excessive litigation, and the Court was faced with the issue of whether it should be limited to awarding a fee per Section 73.092.   One possible difference between that case and workers’ compensation is that the Court recognized the fundamental right of a property owner to be compensated if private property is taken by the State and a right to reasonable attorney’s fee.

Legislature may establish reasonable parameters for the award of attorney’s fees in eminent domain proceedings, a statute cannot operate in a manner so as to reduce a fee award that it runs afoul of the constitutional guarantee that private property owners receive full compensation for taking their property.

Court statutes that where a condemning authority is responsible for excessive litigation limiting a fee under Section 73.092 on benefits achieved places the property owner at a considerable disadvantage because governmental entities possess potentially unlimited resources to abuse litigation and legal representation.    Attorneys for the government can bill a substantial number of hours and charge substantial fees without the risk of having their fees reduced in any way or subject to a statutory cap.

Court held that mandatory statutory formula that generates a fee award below what is considered reasonable denies the property owner’s right to full compensation for the taking of his/her property which is guaranteed by the Florida Constitution.  Section 73.092 was held unconstitutional as applied to this case.

Does it mean anything.  Opinion is not necessarily on point, but language used is interesting considering the following Justices concurred with the opinion:  Labarga, Pariente, Quince, Canady, Polston and Perry.  Lewis wrote the opinion.

We continue to wait.

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