       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

             GENERAL COMMERCIAL PROPERTIES, INC.,
                         Appellant,

                                    v.

     STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,
                         Appellee.

                             No. 4D14-0699

                           [October 14, 2015]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Janis Brustares Keyser, Judge; L.T. Case No.
2013CA001015XCXXXMB.

   S. Brian Bull and John L. Bryan, Jr. of Scott, Harris, Bryan, Barra &
Jorgensen, P.A., Palm Beach Gardens, for appellant.

   Marc Peoples, Tallahassee, for appellee.

CONNER, J.

   In this appeal, we decide whether the trial court erred in determining
the amount of attorney’s fees awarded to the property owner under section
73.092, Florida Statutes (2012), in eminent domain proceedings brought
by the Florida Department of Transportation. The statute requires the trial
court to use the first written offer made by DOT prior to initiating the
eminent domain proceeding in calculating the amount of fees to be
awarded. General Commercial contends the trial court erred by not using
a written purchase offer made by DOT in 2005 under its Early Acquisition
Program. Because (1) DOT made the 2005 offer in an attempt to acquire
the property as a voluntary acquisition and (2) DOT expressly conditioned
that offer as not being usable in calculating attorney’s fees if an eminent
domain proceeding was subsequently necessary, we affirm the trial court’s
use of a written offer made by DOT in 2012.
             Factual Background and Trial Court Proceedings

   DOT developed an Early Acquisition Program (“EAP”) to acquire
properties it anticipated would be needed for a road expansion project,
before the project was fully funded. The program offered property owners
the opportunity, without any obligation, to sell their property to DOT prior
to any formal agency decision being made to initiate eminent domain
proceedings.     The program sought property through arms-length
negotiations during the early phases of project planning, when no threat
of eminent domain proceeding was imminent because the project plans
were far from final. DOT designed the program for properties that were
currently vacant so as not to affect ongoing businesses. The EAP was
outside of the regular acquisition program that is connected with
condemnation proceedings.

   In 2005, prior to any agency decision to initiate eminent domain
proceedings, DOT identified that it may need several parcels owned by
General Commercial for a road expansion project in Riviera Beach. At that
time, DOT did not have a project resolution authorizing it to go forward
with the highway construction and to engage in the regular acquisition
process used for eminent domain proceedings. In 2005, DOT did not
anticipate that it would be initiating eminent domain proceedings earlier
than October 2007.

   After DOT contacted General Commercial about the EAP in relation to
a vacant parcel it owned General Commercial, in December 2004,
contacted DOT expressing an interest in using the program for parcel 192,
which it also owned. By that time, DOT had identified parcel 192 as a
property it expected to need, but General Commercial was not approached
about the EAP for that parcel because the property was not vacant, and
an ongoing business was operating on the property. However, after
General Commercial expressed an interest in using the EAP for parcel 192,
in January 2005, DOT sent a letter to General Commercial inviting it to
participate in the program for that parcel. After General Commercial
acknowledged, through counsel, that it wanted to proceed, DOT made a
formal offer under the program in March 2005 to purchase parcel 192 for
$400,000 (“EAP offer”). Despite further negotiations, no agreement was
reached and the offer was abandoned.

   In 2013, DOT initiated its eminent domain suit to acquire parcel 192.
As required by statute, prior to initiating suit, DOT offered to purchase the
parcel in May 2012 for $699,000 using its “regular acquisition” process
(“RAP offer”). The RAP offer was rejected. Subsequently, the final



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judgment awarded $800,000 for the parcel.1

    General Commercial sought an award of attorney’s fees using the
“benefits” achieved standard set forth in section 73.092, Florida Statutes
(2012). Section 73.092(1)(a) defines “benefits” as the difference between
the final judgment amount and the “first written offer” made after the
defendant hired an attorney, if no offer was made prior to the defendant
hiring an attorney. As such, General Commercial contended that the “first
written offer” was made in March 2005 for $400,000 during the EAP. It
further contended it was entitled to attorney’s fees in the amount of
$120,000, as determined by applying the applicable statutory percentage
to the difference between the $800,000 final judgment and the EAP offer.
DOT contended that the first written offer was the $699,800 RAP offer,
which would entitle General Commercial to attorney’s fees in the amount
of $33,000, after applying the statutory percentage. The trial court agreed
with DOT and awarded fees using the RAP offer. The details of the
argument by both sides in the trial court and the trial court determinations
are discussed in more detail below.

                              Appellate Analysis

   Whether a trial court properly applied the law in determining which
writing constituted the first written offer for calculating attorney’s fees is
a question of law subject to de novo review. Pompano Beach Cmty.
Redevelopment Agency v. Holland, 82 So. 3d 1034, 1036 (Fla. 4th DCA
2011).

   As part of full compensation for a taking, the condemning authority
must pay the property owner’s attorney’s fees. § 73.091, Fla. Stat. (2012).
Before seeking to acquire property through eminent domain power, the
condemning authority is required by statute to “attempt to negotiate in
good faith” with a property owner. § 73.015(1), Fla. Stat (2012). During
such negotiations, the condemning authority must provide the owner with
a written offer. Id. The award of fees in an eminent domain proceeding is
tied to the amount offered to purchase the property by the condemning
authority prior to suit being filed.

   Section 73.092, Florida Statutes (2012), details the method for
calculation of fees:

      (1) Except as otherwise provided in this section and s. 73.015,

1 The $800,000 amount included an award for two other parcels as well, but the
motion for attorney’s fees and computation of attorney’s fees by the trial court
referenced only parcel 192, and not the other parcels.

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      the court, in eminent domain proceedings, shall award
      attorney’s fees based solely on the benefits achieved for the
      client.

      (a) As used in this section, the term “benefits” means the
      difference, exclusive of interest, between the final judgment or
      settlement and the last written offer made by the condemning
      authority before the defendant hires an attorney. If no written
      offer is made by the condemning authority before the
      defendant hires an attorney, benefits must be measured from
      the first written offer after the attorney is hired.

§ 73.092, Fla. Stat. (2012). Once the amount of “benefit” is determined,
the statute provides that a percentage of the benefit is the amount of fees
owed. Id.

   However, when a condemning authority engages in an ordinary arm’s
length transaction to purchase property, the property owner has no
entitlement to attorney’s fees, and attorney’s fees pursuant to section
73.092 does not apply. JEA v. Williams, 978 So. 2d 842, 845 (Fla. 1st DCA
2008) (“It is undisputed that public entities with eminent domain powers
have the authority to purchase property to complete their projects as if
they were an ordinary purchaser of real estate. . . . In an ordinary arm’s
length purchase, the landowner is not entitled to attorney’s fees.”). A
purchase or attempt to purchase using an ordinary arm’s length
transaction can be distinguished from a purchase through eminent
domain proceedings in that there may be no binding offer, no threat of
condemnation, no definite need for the property, or no pressure on the
property owner to obtain litigation counsel. See City of Boynton Beach v.
Janots, 929 So. 2d 1099, 1102 (Fla. 4th DCA 2006).

    General Commercial argues that the trial court erred in its calculation
of the attorney’s fee award in its favor because the court based the award
using DOT’s 2012 RAP offer as the “first written offer,” instead of the 2005
EAP offer. DOT makes several counterarguments to support affirmance of
the trial court. We discuss the two most pertinent counterarguments.
DOT asserts that the EAP offer was its attempt to acquire properties
outside of its eminent domain power, using a voluntary process when no
threat of taking is pending; thus, the EAP offer cannot serve as the basis
for the calculation of attorney’s fees under section 73.092. DOT also
asserts General Commercial expressly agreed to not seek attorney’s fees
based on the EAP offer. Although we view DOT’s second argument




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differently, we agree with both arguments.2

   The trial court admitted into evidence a letter from DOT to General
Commercial dated January 3, 2005. The letter was sent after General
Commercial expressed, through its counsel, that it was interested in
participating in the EAP. The letter stated that “[b]ased on your favorable
response we will proceed to have your property appraised.” The letter also
clearly stated three things:

      DOT was interested in acquiring parcel 192 using the EAP
      because it was “expected” that the property would be needed
      for a road widening project;

      “[I]n the ordinary course of business, [DOT] would not be
      seeking to acquire your property until approximately October
      2007;” and

      If an agreement was not reached using the EAP, when the
      project was fully funded, DOT “will pursue condemnation,
      provided your parcel is still needed.”

(emphasis added). The letter further explained, in italicized font as
indicated below, that

      [a]ny offer made in the Early Acquisition Program will NOT be
      considered the initial offer under the “regular acquisition”
      process, and will NOT be used as a basis for an attorney fee to
      be paid in the “regular acquisition” process. We will assume
      that you are agreeable to this condition if we do not hear
      from you to the contrary in the next ten (10) days.

(bold emphasis added).         A copy of the letter was sent to General
Commercial’s counsel.

    On March 22, 2005, after an appraisal was conducted, DOT delivered


2 DOT argued to the trial court and on appeal that General Commercial agreed
by silence that the EAP offer would not be used in eminent domain proceedings
to calculate the amount of attorney’s fees to be awarded. The trial court agreed
with that position as part of its reasoning in using the RAP offer in calculating
the fees awarded. Although we agree there is competent substantial evidence to
support the trial court’s finding that General Commercial agreed by silence that
the EAP offer would not be used in eminent domain proceedings, we conclude
that the better analysis is that use of the EAP offer was precluded as an explicitly
stated condition of extending the offer, rather than an agreement by silence.

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a statement of offer and a purchase agreement to purchase parcel 192,
pursuant to the EAP, for the sum of $400,000. The statement of offer and
purchase agreement were delivered with a cover letter. Similar to the letter
sent by DOT in January, the cover letter indicated it was “expected” that
parcel 192 would be needed for road widening, but if an agreement was
not reached using the EAP, condemnation would be pursued sometime
after October 2007, “provided your parcel is still needed.” (emphasis
added). Also similar to the January letter, the March letter contained the
following language, italicized as indicated below:

      Any offer made in the Early Acquisition Program will NOT be
      considered the initial offer under the “regular acquisition”
      process, and will NOT be used as a basis for an attorney fee to
      be paid in the “regular acquisition” process. Your acceptance
      of this provision is acknowledged since we did not hear
      from you to the contrary within ten (10) days of our last
      letter to you.

(bold emphasis added).

    The trial court properly found that the March 2005 offer was made
under the EAP as an attempt to acquire the property in an arms-length
transaction, rather than a presuit offer pursuant to section 73.015. The
trial court also properly found that the offer was extended on the condition
that it would not be used against DOT as a basis for attorney’s fees in the
event it was necessary to acquire parcel 192 through eminent domain
proceedings. There was competent substantial evidence to support both
findings.

    Section 73.015(1)(a)1., requires that a presuit offer be made prior to
eminent domain proceedings after it is determined that “all or a portion of
[the owner’s] property is necessary for a project.” (emphasis added). Both
the January and March 2005 letters clearly indicate parcel 192 was
“expected” to be needed, and eminent domain proceedings would be
sought sometime after October 2007, if it “is still needed.” Thus, it is clear
that the March 2005 offer was not made because it had been determined
parcel 192 was “necessary for a project.” Moreover, the trial court found
it significant that seven years elapsed between the March 2005 offer and
the initiation of eminent domain proceedings.

   DOT had the right, during arms-length negotiations, when there was
no threat of condemnation proceedings, to condition any offer with
limitations on the use of the offer. General Commercial asked to
participate in the EAP and wanted the opportunity to consider an offer


                                      6
under the program. DOT complied with the request by extending an offer
with a condition limiting its liability for attorney’s fees if the offer was not
accepted. General Commercial sought and obtained the benefit of having
an offer extended, which prompted further negotiations. Even though the
negotiations proved to be unsuccessful to obtain a sale and condemnation
proceedings were initiated, General Commercial is bound by the
conditions imposed on the offer it sought in 2005. See 13 Williston on
Contracts § 38:3 (4th ed.) (explaining that conditions are typically inserted
for the promisor’s protection); see also Hendricks v. Stark, 126 So. 293,
297 (Fla. 1930) (“It has been repeatedly held that a person by the
acceptance of benefits may be estopped from questioning the validity and
effect of a contract.”). General Commercial has made no argument that
the cover letter was not part of the March 2005 offer extended. Because
the offer was extended on the specific condition that it could not be used
to determine attorney’s fees in a condemnation proceeding, General
Commercial cannot alter the terms of the offer.

    Additionally, the trial court agreed with DOT and determined that
General Commercial expressly waived the right to consider the EAP offer
for parcel 192 as the first written offer for awarding attorney’s fees in the
eminent domain proceeding by language included in an addendum to the
purchase agreement the parties entered into, using the EAP, for parcel
206, also owned by General Commercial. Parcel 206 was successfully
purchased by DOT prior to the eminent domain proceedings, using the
EAP. There was competent substantial evidence for the trial court’s ruling
on waiver.

   Having determined there is competent substantial evidence to support
the trial court’s determinations, we affirm.

   Affirmed.

DAMOORGIAN and FORST, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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