November 18th, 2015

Florida’s Supreme Court Levels the Playing Field.

“That the power to tax involves the power to destroy … [is] not to be denied” – Supreme Court Justice John Marshall.

Florida’s Constitution is one of only a few that recognizes a landowner should not be put in a worse position after a condemnation than before. Full compensation, as the Constitution requires, includes attorneys fees as calculated under Chapter 73 of the Florida Statutes. This calculus is based on the ‘betterment’ achieved for a client, namely the difference between a first offer and the ultimate settlement or jury award.

But what happens when the condemning authority doesn’t play fair, forcing the property owner’s attorney to spend an exorbitant amount of time combating excessive litigation tactics?


Every case starts with the scales tilted in favor of the condemning authority.

Until this month, that was the risk owners’ attorneys took in accepting any case. However, after years of appeals, one particularly noteworthy case involving Orlando’s own Central Florida Expressway Authority has finally wound its way to the Florida Supreme Court for their review and opinion.

Our team’s newest member, Summer DeGel picks it up from there:

On November 5, 2015, the Supreme Court of Florida decided what will likely be considered a landmark eminent domain case in Florida.  In the case, Doerr v. Central Florida Expressway Authority the Court fundamentally changed the playing field between owners and condemning authorities.

The Central Florida Expressway Authority began a condemnation proceeding to take 9.81 acres of land belonging to the Joseph B. Doerr Trust.  The jury in that case found that the owner was entitled to $5.74 million for the land taken and damages.  After the trial, the Landowner moved for attorneys’ fees under the applicable Florida laws.

Although an award of attorneys’ fees to the landowner is standard in every eminent domain action in Florida, this case was different.  Per the Supreme Court, the Central Florida Expressway Authority’s attorneys had engaged in tactics that the courts deemed excessive litigation.  The Court also found that the landowner’s attorney would not be compensated for responding to these tactics under the current statutory scheme, known as the benefits achieved formula, found in Section 73.092(1) of the Florida Statutes.  Thus, on appeal, the Supreme Court set out to answer the question of whether the benefits achieved formula was unconstitutional when used to calculate attorneys’ fees for the hours incurred in defending against excessive litigation in an eminent domain proceeding.

In the opinion, the Supreme Court reaffirmed that a landowner is entitled to full compensation under the Florida Constitution, which includes an award of attorneys’ fees.  In addition, the Supreme Court reiterated the “importance of fair play in eminent domain proceedings because of the inherent disadvantage to the property owner.”  The Supreme Court noted that limiting the attorneys’ fees to the benefits achieved formula in this case would deny the landowner his right to full compensation under the Florida Constitution.

Therefore, the Supreme Court concluded that when a private property owner must defend against excessive litigation by the condemning authority, that property owner will be compensated for that defense.

The Supreme Court declined the opportunity to list what would or would not qualify as excessive litigation techniques on the part of the condemning authority, but did state that litigation that differs from what the legal community would expect in a normal or usual condemnation case meets this test.

Stay tuned for what this ultimately means for the CFX in regards to total cost of this case. Thank you Summer, and welcome aboard.

October 21st, 2015

Back to the Future Day Special: Highways and Skyways edition

The Future is Now

City of Tomorrow by Jonas de Ro, 2012

Great Scott!

Today is October 21, 2015 and any of you on Twitter or Facebook have by now been buried in fun facts and comparisons making you keenly aware that it is “Back to the Future Day” – the exact date Marty McFly landed in the future. That colorful 1980s vision of 2015, complete with 3-D movies, hoverboards, the Cubs winning the World Series, and lots of Pepsi.

So in honor of this historic occasion, we’re taking a look at the future of transportation infrastructure, since it is inexorably intertwined with condemnation and its use in the US.


The most likely of the future tech to find its way into american transportation in the next few decades is Maglev. Maglev is magnetic levitation, typically of trains, which allows ridiculously high speeds. If you want to really understand and dig into the science side of Maglev, check out this awesome handbook*.

Maglev in Japan. Photo by Yosemite via Wikimedia.

Maglev in Japan. Photo by Yosemite via Wikimedia.

High speeds means more buffer and, consequently, more right of way. Surprisingly, as far back as 1992 the U.S. GAO has been looking at the potential avenues of right of way acquisition for Maglev. Some of their suggestions seem more realistic than others (using abandoned rail ROW seems like it may work – using existing utility easements is unlikely to give enough space and will likely require additional condemnation). Here in Orlando, there’s talk of a Maglev train running from the airport to the Orange County convention center, and possibly beyond.


The Flying car

“Where we’re going, we don’t need roads.”

  • Doc, “Back to the Future”

While 1980s visions of 2015 included a Delorean levitating above suburban neighborhoods, we’re not quite there yet.True, there have been quite a few forays into flying cars, including the new-ish Terrafugia models which look pretty cool. However, all of these concepts are the ‘crossover’ between airplane and car. Even if these are suddenly the hot new personal transportation option, I wouldn’t anticipate much of a change to infrastructure, other than maybe a local airstrip opening behind your neighborhood Wal-Mart (or maybe in the parking lot).

Terrafugia in flight

Terrafugia in flight. Photo courtesy of Michael Pereckas Milwaukee, WI via Wikimedia.


What is really intriguing is the technology we see in that iconic Back to the Future scene – a levitating car with VTOL (vertical takeoff and Landing) capabilities. What would this do to right of way?

While personal levitation vehicles seem far fetched, Lexus is at least toying with the technology. Check out their cool hoverboard video here. The video leaves the impression you can use this anywhere, which is not the case. Since this technology is magnet based, it requires changes to the surface being “skate-hovered” or driven – i.e. the insertion of magnets or magnetic materials into the paving.

Equally intriguing is the Omini hoverboard which uses wind rather than magnets. This video shows why this technology is probably not going to be a viable transportation option for a while. In its current configuration it is about as loud as a Kiss concert and about as stable as the backwards brain bicycle.

But what happens to roads and right-of-way in a world with VTOL cars? We’ve seen iterations in a whole slew of ubiquitous in the future movies – The Fifth Element, Minority Report.

Without some sort of “right of way” the sky becomes an all out free for all. No traffic signals seems like a bad idea, and no designated routes as well. Do hovercars fly above current highways? Do current highways eventually become parks, greenspace, buildings, or houses? Will condemnation of air rights be in order?


Tesla, Leaf and the monthly news stories of “car of the future runs on seawater” could have an impact on transportation infrastructure as well. New access points for battery recharge or governmentally encouraged alternative fuels will change the landscape of your typical highway exits and rest areas. The technology being used in these new cars is intriguing as well. Tesla in particular brought hands free driving to its vehicles this week. Not surprisingly, it had mixed reviews. However, experts in transportation will tell you traffic locked into the same speed will alleviate congestion much more effectively than adding lane after lane after lane. See this Australian video explaining the mathematics behind traffic jams. (how about that 2 week traffic jam in China!)

As the technology changes and shifts, transportation infrastructure can be expected to do the same. However, our highway system servicing the internal combustion engine have been around for 70+ years and is undoubtedly going to be here for a while. Even after we are all rehydrating our food and installing flux capacitors.

Have a different view? Feel we forgot to mention some emerging technology? Email us!


*Editor’s Note: In the interest of full disclosure, I just might know the author of that handbook.  For more on 2015 Tesla award winner Ion Boldea, check here. Never hurts to cross market.

Constitutional Law,Florida Eminent Domain,National Eminent Domain News

October 5th, 2015

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We’re up cropped-Constitution_signatures.jpgand running on Twitter now. Keep up to date on Florida and federal eminent domain, property rights, and constitutional law news. Click on the link below or picture on the left to be taken to our Twitter page.


Constitutional Law,Florida Eminent Domain,National Eminent Domain News,Recent Decisions

September 29th, 2015

Update: Are the Auto Bailouts a Taking?

Update – 9/29/15. At least one court has considered and determined that there is something to this whole “bailout as a taking” issue. The Court of Federal Claims recently denied the government’s motion to dismiss the claims of Colonial Chevrolet Co. (Colonial Chevrolet Co. v. U.S.) and other former dealers who were kicked to the curb per the requirements of the bailout agreement. Apparently, the bailout ended with Chrysler tearing up a little less than 800 franchise agreements and General Motors doing the same for almost 1,500.

A previous motion to dismiss went up on appeal where the Circuit Court held that the motion to dismiss was properly denied, but remanded on the issue that if the franchise agreements were worth nothing (as a result of the pending insolvency of GM and Chrysler) the claims could not stand:

The Circuit stated that to survive a motion to dismiss the plaintiffs must make “specific allegations” establishing that their franchise agreements would have retained value in a scenario known as the “but-for world” in which the government did not enter into an agreement with the manufactures to provide financing, conditioned upon closing dealerships, to save the companies.

Everyone amended their complaints and the government predictably asserted the very grounds the Circuit court discussed in their opinion.

The government argues that plaintiffs have failed to allege sufficient facts in their amended complaints to meet the “economic loss” requirement for establishing a taking under the Fifth Amendment. According to the government, nothing was taken from plaintiffs because, in the but-for worlds where the alleged taking did not occur, GM and Chrysler would have been liquidated, making plaintiffs’ franchise agreements worthless. The government contends that plaintiffs’ but-for world allegations are either inconsistent with the Circuit’s holding or lack sufficient detail to meet the “plausibility” standard set by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662 (2009).

A 20+ page trip through the looking glass into the mysterious “but-for” world of eminent domain left the Court denying the motion to dismiss and allowing the case to go forward. Check back with GrayRobinson’s Florida Eminent Domain blog to keep apprised of the latest on these fascinating cases.


Originally published April 11, 2014

Another victim on the Boulevard of Broken Dreams
Photo by John Martinez Pavliga, Berkeley, USA

Here’s an unusual takings (maybe?) case making its way through the Federal Courts:

A&D Auto Sales v. U.S.

The issue goes something like this. As part of the bailouts of GM and Chrysler, the Feds mandated that these two automakers cancel franchise agreements with certain dealerships, including the Plaintiffs.

Plaintiffs brought suit alleging a taking of their franchise agreements. But are these franchise agreements ‘property’ as defined by the Constitution and case law protecting property? The government argued no, moving to dismiss the case and also argued that the terminations were not causally linked to the government demands.

The Court of Federal Claims refused to dismiss, and the Federal Circuit agreed, saying this unique case of first impression warranted a continued look, but sent the case back down for the Plaintiffs to amend their complaint to more clearly define and explain that the government action, not the financial situation for GM and Chrysler, caused the loss in value.

Stay tuned, this could get interesting as more facts are developed in the case.


September 21st, 2015

Unsuccessful Inverse Condemnation Claims May Expose Property Owner to Paying Other Side’s Costs

In the latest round of opinions stemming from Flagler Beach’s ongoing dispute with one of the local golf courses (see the earlier opinion here), last Friday, Florida’s Fifth District Court of Appeal issued an opinion regarding a condemning authority’s entitlement to recover court costs incurred in inverse condemnation actions.  In Caribbean Condominium Ltd. Partnership v. City of Flagler Beach, Case No. 5D14-205, 2015 WL 5456819 (Sept. 18, 2015), the Fifth District faced the question of whether a condemning authority – in this case, the City of Flagler Beach – is entitled to recover its court costs under Florida’sSeems like a chip shot “prevailing party” statute, Section 57.041, when the condemning authority successfully defends against a private property owner’s inverse condemnation claim.  In Caribbean Condominium, the City argued that it was entitled to recover its costs as the prevailing party, while the property owners argued that under Florida’s eminent domain-specific statutes, condemning authorities are solely responsible for paying court costs.  In other words, the City argued that general civil procedure rules should apply, while the property owner argued that eminent domain procedure should apply.  The Court ultimately found in favor of the City, reasoning that because the owner’s inverse condemnation claim failed – i.e., that no taking occurred – the condemnation statutes do not apply.  The Court held that the City was entitled to recover its costs from the owners as the “prevailing party” under 57.041, Florida Statutes.