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Eminent domain law does not provide for recovery of attorney's fees related to threatened condemnation action that was not filed or settled.  [Added 1/11/10]

    County threatened to bring a condemnation action against landowners.  County later "abandoned the project before settling with the property owners or filing a condemnation action against them."  Landowners requested reimbursement of their attorney's fees and costs.  County refused.  Landowners brought suit.  The trial court "trial court agreed with [Landowners] that perhaps fees and costs should be compensable under these circumstances, but found that they were not compensable under present Florida law."  (Emphasis by court.)

    Landowners' law firm, appraisal firm, and land planning company appealed.  The Fifth DCA affirmed, rather reluctantly.

    F.S. sec. 73.015(4) "expressly authorizes an award of attorney's fees and costs to landowners only when 'settlement is reached . . . prior to a [condemnation] lawsuit being filed.'  Here, Appellants allege that no pre-suit settlement occurred.  Thus, section 73.015(4), by its plain language, does not authorize a recovery in this case."

    Nor did F.S. sec. 73.091(1) provide a basis for the fees and costs.  That statute "states in pertinent part that:  'The petitioner shall pay attorney's fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court, including, but not limited to, reasonable appraisal fees . . .'  (Emphasis added [by court]).  This statute plainly authorizes only fees and costs 'incurred in the defense of the proceedings in the circuit court.'  Such proceedings are initiated by the filing of a petition.  For purposes of awarding fees under this statute, this court has previously held that '[n]othing short of a petition which adheres to the statutory guidelines will commence condemnation proceedings under chapter 73.'  Dep't of Envtl. Protection v. Gibbins, 696 So.2d 888, 890 (Fla. 5th DCA 1997)."

    The court, however, did express sympathy with the appellants' position.  "Finally, we note that both Appellants and the County make policy arguments as to why fees and costs should or should not be recoverable in this context.  Although we agree with the trial judge that Appellants arguments appear more persuasive, they are not proper considerations for an appellate court called upon to apply an unambiguous statute.  Rather, these arguments should be advanced to the Legislature."  Calhoun, Dreggors & Associates v. Volusia County, __ So.3d ___ (Fla. 5th DCA, No. 5D09-547, 12/31/2009).

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