SABAL TRAIL TRANSMISSION LLC v. 18.27 ACRES OF LAND IN LEVY COUNTY

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

GAINESVILLE DIVISION

SABAL TRAIL

TRANSMISSION, LLC,

Plaintiff,

v. Case No.: 1:16cv93-MW/GRJ

18.27 ACRES OF LAND

IN LEVY COUNTY, et al.,

Defendants.

______________________________/

ORDER GRANTING IN PART AND DENYING IN PART

DEFENDANTS’ MOTION FOR ATTORNEY’S FEES AND COSTS1

This Court previously held that state substantive law governs the measure of

compensation in eminent domain cases brought by private parties against private

property owners under the Natural Gas Act. Accordingly, Florida’s full

compensation measure applies here, which includes reasonable attorney’s fees. See

1 This Court recognizes that this Order coming from this judge is unusual for two reasons;

namely, because this Court did not handle the trial in this case—rather Judge Huck from the

Southern District of Florida presided over the trial—and because, typically, fee motions are

referred to magistrate judges in other divisions within this District and in other district courts. But

while this Court did not sit in the trial for this case, it did handle the pretrial litigation—including

the determination of the measure of compensation, motions in limine, and Daubert motions—and

post-trial litigation, including the motion for new trial. Accordingly, this Court is well-versed on

the disputed issues, what transpired at trial, and the attorneys’ efforts in litigating this case. In

addition, consistent with longstanding tradition in the Tallahassee Division initiated by Judge

Hinkle, this Court directly addresses fee motions rather than refer them to a magistrate judge. This

Court acknowledges that this tradition is somewhat unique to this Division; however, this Court

has a bird’s eye view of the case, which assists in the orderly and efficient resolution of the issues,

obviating the need to refer the matter to a magistrate judge.

Art. X, § 6(a), Fla. Const. (“No private property shall be taken except for a public

purpose and with full compensation therefor paid to each owner . . . .”) (emphasis

added); Joseph B. Doerr Trust v. Cent. Fla. Expressway Auth., 177 So. 3d 1209,

1215 (Fla. 2015) (holding that it is “fundamentally clear” that the definition of full

compensation under Florida’s Constitution includes reasonable attorney’s fees

(citations omitted)).

Several courts have reached the same conclusion—that state substantive law

governs the measure of compensation—both before and after this Court conducted

its analysis. See, e.g., Tenn. Gas Pipeline Co., LLC v. Permanent Easement, 931

F.3d 237 (3d Cir. 2019); Columbia Gas Transmission Corp. v. Exclusive Nat. Gas

Storage Easement, 962 F.2d 1192 (6th Cir. 1992); Sabal Trail Transmission LLC v.

Real Estate, 2018 WL 2305768 (M.D. Ga. May 21, 2018); Equitrans LP v. Real

Estate, 2017 WL 1455023 (N.D.W.V. Apr. 21, 2017).

Without waiving its argument that this Court decided this issue incorrectly,

Plaintiff challenges Defendants’ motion for costs and fees, asserting, among other

things, that Defendants improperly seek additional fees beyond the “benefits-

achieved” amount allowed under Florida law, and that federal law—not Florida

law—provides the governing standard for awarding reasonable costs.2 This Court

2 Plaintiff reserves the right to appeal this Court’s determination of entitlement to

attorney’s fees and costs. See ECF No. 290 at 1 n.1.

will address fees and costs in turn, beginning with a discussion of how Florida law

determines the amount of attorney’s fees as a component of “full compensation”

pursuant to section 73.092, Florida Statutes, and the amount of fees to which

Defendants are entitled.

I. “Benefits Achieved” Fee Award under § 73.092(1), Fla. Stat.

In eminent domain proceedings, Florida law provides “the measure to set an

award of fees based solely on the benefits achieved for the client.” City of North

Miami Beach v. Reed, 863 So. 2d 351, 354 (Fla. 5th DCA 2003) (internal quotation

marks omitted). Section 73.092(1)(a) defines “benefits” as “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.” § 73.092(1)(a),

Fla. Stat. The statute sets a sliding scale, taking into consideration the “benefits

achieved,” to calculate attorney’s fees. Eligible fee awards include 33% of any

benefit up to $250,000, plus 25% of any portion of the benefit between $250,000

and $1 million. See § 73.092(1)(c)1.-2., Fla. Stat.

“Section 73.092 is intended to promote settlements and deter litigation.”

Seminole Cnty. v. Coral Gables Fed. Sav. & Loan Ass’n, 691 So. 2d 614, 615 (Fla.

5th DCA 1997). Accordingly, when “the condemning authority acknowledges there

has been a taking from the outset,” it may preserve a statutory right to limit the

landowner’s attorney’s fee award by making a written offer of settlement. Reed, 863

So. 2d at 354. Thus, the higher the last written offer of settlement relative to the final

judgment, the lower the potential “benefit” and resulting fee award.

Finally, additional fees may be awarded in cases where the opposing party has

dragged the property owner through “excessive litigation.” See Doerr, 177 So. 3d at

1219 (holding that “when a condemning authority engages in tactics that cause

excessive litigation, section 73.09(2) shall be used separately and additionally to

calculate a reasonable attorney’s fee for the hours expended which are attributable

to defending against the excessive litigation or actions”). However, this is not

Defendants’ position. ECF No. 283 at 21-27.

As an initial matter, the parties have agreed upon the calculation, based on the

statutory sliding scale, and the amount of “benefits achieved” fees totaling

$220,391. This is based on a benefit achieved totaling $801,564 (the difference

between the final judgment of $861,264 and the last written offer before Defendants

hired an attorney of $59,700). Applying the statutory sliding scale to this “benefit

achieved” yields $82,500 (33% of $250,000) plus $137,891 (25% of ($801,564 -

$250,000 = $551,564)) for a total “benefits achieved” fee award of $220,391. See

ECF No. 281 at 3 n.1. Accordingly, based on the parties’ agreement and the

application of section 73.092(1)(c), Florida Statutes, Defendants’ motion, ECF No.

283, is GRANTED as to the amount of “benefits achieved” attorney’s fees totaling

$220,391 as a component of Defendants’ full compensation.

This Court will not pass on the issue of whether Defendants are entitled to

additional fees under section 73.092(2) due to “excessive litigation,” because

Defendants do not claim to have been the victims of such tactics. Instead, as will be

explained in more detail below, Defendants seek to squeeze this exception to the

statutory percentage cap on fees into a different box with a different label, claiming

they are entitled to fees for “supplemental proceedings” that were actually just a part

of the original action. This Court is impelled to reiterate that the corollary, under

Florida law, to allowing attorney’s fees in eminent domain proceedings is that the

condemning authority has a statutory right to limit that recovery by engaging in good

faith settlement negotiations and providing a written settlement offer. Section

73.092(1) applies in this case because Plaintiff made a written offer of settlement—

effectively limiting the amount of fees Defendants can recover. As this Court has

already explained, Defendants are entitled to fees based upon the “benefits

achieved,” which encompasses the success obtained in the original proceeding, and

all work that Defendants put into litigating their case—including early matters

regarding choice of law and whether this case would be tried by a jury. Such matters

are not “supplemental proceedings.” They are simply the natural result of

Defendants’ well-fought defense of this case.

II. Pre-Trial “Supplemental Proceeding” Fees under § 73.092(2), Fla. Stat.

Aside from the “benefits achieved” award under section 73.092(1)(c), a

landowner may also pursue “fees incurred in defeating an order of taking, or for

apportionment, or other supplemental proceedings, when not otherwise provided for

. . . .” § 73.092(2), Fla. Stat. (emphasis added). This is where the parties’ agreement

ends in this case. Defendants do not seek fees incurred for defeating an order of

taking or for apportionment. Instead, Defendants seek additional fees for “pre-trial

supplemental proceedings,” totaling $27,610, and fees for “post-trial supplemental

proceedings,” totaling $84,107.50. Both amounts are the result of an hourly lodestar

calculation taking into consideration factors set out in section 73.092(2).3

Defendants assert the “pre-trial supplemental proceedings” relate to counsel’s

work in successfully litigating two issues for their clients; namely, whether this case

would proceed to trial before a commission or a jury, and whether federal or state

substantive law controls the measure of compensation. ECF No. 281 at 4 n.2.

Defendants note that when attorney’s fees are incurred for required proceedings that

do not result in a monetary benefit upon which to base a fee award, section 73.092(2)

3 These factors include (1) the novelty, difficulty, and importance of the questions involved,

(2) the skill employed by the attorney in conducting the cause, (3) the amount of money involved,

(4) the responsibility incurred and fulfilled by the attorney, (5) the attorney’s time and labor

reasonably required to adequately represent the client in relation to the benefits resulting to the

client, (6) the fee, or rate of fee, customarily charged for legal services of a comparable or similar

nature, and (7) any attorney’s fee award made under section 73.092(1). § 73.092(2)(a)-(g), Fla.

Stat.

applies to determine the “reasonable amount of attorneys’ [fees] for the primary fee

or additional supplemental fees.” ECF No. 283 at 22. Defendants claim the best

support for their position that this pre-trial work is separately compensable is the

language of section 73.092(2).

Plaintiff opposes any pre-trial fee award under section 73.092(2) on the basis

that this pre-trial work is already accounted for under the “benefits achieved” award.

Plaintiff argues that “supplemental proceedings” in eminent domain actions

generally “occur post-judgment and address rights resulting from the judgment, such

as apportionment of the compensation.” ECF No. 290 at 9. Moreover, Plaintiff

claims, the two pre-trial issues that Defendants rely on for an award of supplemental

proceeding fees were a “fundamental part of the proceedings that led to the final

order of taking,” and thus are not additionally compensable. Id. (quoting Sw. Fla.

Water Mgmt. Dist. v. Shea, 86 So. 3d 582, 585 (Fla. 2d DCA 2012). As alluded to

earlier, this Court agrees with Plaintiff.

The question is whether pre-trial litigation in the original eminent domain

action concerning the issue of trial by jury and the law governing the measure of

compensation can be construed as “supplemental proceedings” for which fees are

“not otherwise provided” under Chapter 73, Florida Statutes. The answer is no. To

reach this answer, this Court looks to how Florida courts have interpreted this statute

in determining what constitutes a “supplemental proceeding” under Chapter 73,

Florida Statutes. In so doing, and despite Defendants’ urging, this Court will not

interpret Florida law more broadly than the state courts which have already spoken

on this issue.

First, Florida courts have routinely interpreted “supplemental proceedings” in

the eminent domain context as those which generally “occur[] at the end of a

proceeding, usually after a final judgment has been entered.” Shea, 86 So. 3d at 584-

85 (quoting Fla. Dep’t of Transp. v. Smithbilt Indus., Inc., 715 So. 2d 963, 967 (Fla.

2d DCA 1998)). In Shea, the Water Management District commenced an eminent

domain proceeding, during which the property owners objected to the District’s

order of taking and requested a hearing on the matter. The parties ultimately settled

on an amount for full compensation ahead of trial. The property owners then filed a

motion for attorney’s fees and asserted that their objection to the order of taking in

the original action constituted a “supplemental proceeding,” for which they were

entitled to additional fees along with their “benefits achieved” fee award. The Court

of Appeal rejected this argument, noting that “contesting the order of taking was a

fundamental part of the proceedings that led to the final order of taking.” Id. at 585.

Finding that the property owners had already been fully compensated for fees based

on their “benefits achieved” award, the court reversed the trial court’s order

awarding fees under section 73.092(2).

In other cases, Florida courts have found the supplemental proceeding

provision applies in situations where attorney’s fees are “not otherwise provided for”

by law, even though they may not have been incurred in a separate or subsequent

proceeding. For example, in Smithbilt Industries, the court held that while “[i]n

normal usage, a supplemental proceeding occurs at the end of a proceeding,” “in the

absence of a successful offer of judgment or a written offer, . . . subsection (2) should

be used to determine attorneys’ fees in an eminent domain trial that is limited to the

issue of business damages.” 715 So. 2d at 967. In that case, unlike the circumstances

before this Court, the condemning authority never made a written offer to settle;

accordingly, the property owner was unable to recover any fees under the “benefits

achieved” provision. Id. at 966 (noting section 73.092 “contains a gap because it

contains no method to establish fees in the event that the condemning authority

makes no written offer and the proceeding is not supplemental in nature”); see also

State, Dept. of Transp. v. ABS Props. P’ship, 693 So. 2d 703 (Fla. 2d DCA 1997)

(holding that trial court should have calculated fees based on factors set out in section

73.092(2) when condemning authority voluntarily dismissed eminent domain

proceeding and the property owner was not otherwise entitled to “benefits achieved”

fees).

Defendants point to ABS Properties in support of their position that the

statutory language is broad in defining supplemental proceedings—or, rather, this

Court should broadly construe it. But this is a nonstarter. In ABS Properties, the

court held that the language “when not otherwise provided for” was “broad enough

to encompass” the specific facts of that case, which are entirely distinguishable from

the case before this Court. Id. at 705. There, the Florida Department of

Transportation (“DOT”) initiated a condemnation action against the landowner as

part of a project to widen a highway. After engaging in mediation and ultimately

reaching a settlement agreement that permitted attorney’s fees for the landowner that

were capped at a percentage of the benefits received based on full compensation

measuring $1.3 million, the deal fell apart when DOT postponed the project and

voluntarily dismissed its case. The trial court awarded attorney’s fees pursuant to the

“benefits achieved” formula in section 73.092(1), but on appeal, the court held that

section 73.092(2)’s provision for fees for supplemental proceedings “when not

otherwise provided for” applied. The court concluded that section 73.092(1) clearly

did not apply because the landowners’ attorneys did not achieve any “benefits” due

to DOT’s decision to voluntarily dismiss the case. Id. at 704. Ultimately, the court

concluded that attorney’s fees were “not otherwise provided for” and reversed and

remanded for the trial court to conduct an evidentiary hearing and lodestar analysis

based on the factors set out in section 73.092(2).

Defendants also rely upon the Report and Recommendation in Collier Cnty.

v. RTG, LLC, No. 2:17-cv-14-FtM-38CM, 2018 WL 5300200, *2-3 (M.D. Fla. Oct.

18, 2018), as another example of “required proceedings that are, in part, related to

proceedings arising from the exercise of eminent domain, for which an owner was

also required to engage in litigation with the condemnor.” ECF No. 283 at 24

(internal quotation marks omitted). But again, Defendants’ reliance is misplaced.

In Collier County, the County had previously sued a landlord and its tenant—

Holiday CVS, LLC (“CVS”)—in an eminent domain action for land to be used to

expand an intersection. The taking included fourteen parking spaces that CVS used

for customer parking, and ultimately led to CVS unilaterally terminating its lease

with the property owner. The condemnees then claimed severance and business

damages, and the case proceeded to a jury trial. A jury awarded several million

dollars to the property owner and CVS for the taking and other damages, along with

$1.5 million in attorney’s fees and expert fees. The County never appealed the final

judgment, and it paid the moneys in full. However, the County later filed a separate

action against the condemnees for unjust enrichment, claiming the condemnees

committed fraud on the court because CVS had yet to close its store. The

condemnees removed the action to federal court, which subsequently dismissed it.

Specifically, the district court noted that the second action was a collateral attack on

the jury verdict in the eminent domain case and dismissed the case with prejudice.

See Collier Cnty. v. RTG, LLC, No. 2:17-cv-14-FtM-38CM, 2017 WL 1318459

(M.D. Fla. Apr. 10, 2017) (order on the motion to dismiss).

Following dismissal, the condemnees moved for attorney’s fees under section

73.092, Florida Statutes. See 2018 WL 5300200. The magistrate judge applied

Florida law based on the invocation of the court’s diversity jurisdiction and

recommended awarding fees for a supplemental proceeding pursuant to section

73.092(2), rather than “benefits achieved” fees under 73.092(1). In so doing, the

magistrate judge noted that “a supplemental proceeding [generally] occurs after a

final judgment has been entered.” Id. at *4 n.5. Moreover, “[b]ecause a final

judgment was entered in the eminent domain case prior to the instant action, the

parties evidently agree[d] this case constitute[d] a supplemental proceeding with the

meaning of § 73.092(2).” Id. (internal quotation marks omitted).

Despite Defendants’ reliance upon them, both ABS Properties and Collier

County are distinguishable from this case. First, unlike the landowners in ABS

Properties, Defendants have achieved a substantial benefit in this case—over

$800,000—upon which their statutory fee award is based. An award for fees based

on the success of Defendants’ pre-trial litigation is “otherwise provided for”—

indeed, it has already been provided for under section 73.092(1) and encompassed

in the “benefits achieved” fee award. Moreover, while the Collier County case is an

example of when section 73.092(2) properly applies—i.e., in a subsequent civil

action collaterally attacking the jury verdict in an eminent domain proceeding—it

does no good in advancing Defendants’ position that the pre-trial litigation they

conducted in the original eminent domain proceeding here constitutes a

supplemental proceeding for which they are entitled to additional fees beyond the

“benefits achieved” award. The pre-trial work for which Defendants seek additional

compensation was neither ancillary nor supplemental to the original eminent domain

proceeding. Rather, determining whether to try the case before a jury and which law

governs the measure of compensation were both “fundamental” to the original

proceeding and led to the final judgment in this case.

For these reasons, Defendants cannot recover additional fees for pre-trial work

that is already encompassed in the “benefits achieved” fee award. Litigating whether

to try the case before a jury and which law governs the measure of compensation

were not “supplemental proceedings” in this case. Rather, the work put into litigating

those issues was simply what was required of Defendants to provide a competent

defense to this action. Simply litigating pre-trial matters does not automatically

transform that work into supplemental proceedings—nor, based on the absence of

argument from Defendants on this point, does it automatically amount to excessive

litigation. Accordingly, Defendants’ motion for $27,610 of fees incurred for “pre-

trial supplemental proceedings,” is DENIED.

III. Post-Trial “Supplemental Proceeding” Fees under § 73.092(2), Fla. Stat.

Defendants also seek $84,107.50 in attorney’s fees incurred through “post-

trial supplemental proceedings.” ECF No. 283 at 3. These fees encompass, among

other things, work performed in defending against Plaintiff’s motion for new trial,

ECF No. 209, litigating the entitlement to fees and costs, litigating prejudgment

interest, and defending against PNC Bank’s motion to enjoin disbursement of the

funds, ECF No. 242. See, e.g., ECF No. 281-4 (post-trial supplemental proceeding

time records). Without waiving its objection that Defendants are not entitled to

attorney’s fees at all, Plaintiff agrees to Defendants’ request in part, but asks this

Court to limit the recovery for post-trial supplemental proceedings by reducing both

the amount of time spent on certain matters and the hourly rates for the attorneys

doing the work. See ECF No. 290 at 19. Plaintiff seeks an overall reduction in post-

trial fees under section 73.092(2) from $84,107.50 to $29,080. ECF No. 290 at 8.

Both sides agree, to an extent, that at least some of Defendants’ post-trial work

is compensable under section 73.092(2) as post-judgment “supplemental

proceedings.” The questions are what exactly is compensable, and what amount of

fees this Court should award to Defendants.

As an initial matter, this Court agrees with Plaintiff that Defendants are not

entitled to fees for work performed in defending against Plaintiff’s motion for new

trial, nor is Defendants’ litigation relating to the joint motion to amend the judgment

and motions for prejudgment interest properly considered compensable as

“supplemental proceedings.” Instead, like the pre-trial matters discussed above,

these three matters are fundamental to the original proceeding, the final judgment in

this case, and the overall “benefits achieved,” and have already been included in the

“benefits achieved” fee award. Defendants have provided no authority to the

contrary. Accordingly, Defendants’ motion for fees is DENIED in part as it relates

to amounts for work performed on the motion for new trial, motion to amend the

judgment, and motions for prejudgment interest.

Next, this Court will address the method for calculating reasonable fees for

post-trial supplemental proceedings before addressing Plaintiff’s arguments for

reducing fees for work that is compensable under section 73.092(2).

A. Lodestar Method for Determining Reasonable Fees Under

§ 73.092(2), Fla. Stat.

Florida has adopted the lodestar method to determine the reasonableness of

an award of attorney’s fees under section 73.092(2), Florida Statutes. State, Dep’t of

Transp. v. LaBelle Phoenix Corp., 696 So. 2d 947, 948 (Fla. 2d DCA 1997). This

Court “must expressly determine the number of hours reasonably expended on the

litigation and the reasonable hourly rate for the type of litigation involved.” Lee Cnty.

v. Tohari, 582 So. 2d 104, 105 (Fla. 2d DCA 1991) (citations omitted). “These two

factors are then multiplied to determine the basic lodestar fee.” Id. (citation omitted).

In computing the lodestar amount, this Court “shall consider” a number of

factors, including (1) the novelty, difficulty, and importance of the questions

involved, (2) the skill employed by the attorney conducting the case, (3) the amount

of money involved, (4) the responsibility incurred and fulfilled by the attorney, (5)

the attorney’s time and labor reasonably required adequately to represent the client

in relation to the benefits resulting to the client, (6) the fee, or rate of fee, customarily

charged for legal services of a comparable or similar nature, and (7) any attorney’s

fee award made under the “benefits achieved” provision in section 73.092(1). §

73.092(2)(a)-(g), Fla. Stat.

This Court begins with an analysis of the hourly rates that Defendants’

attorneys seek. This Court then considers whether Defendants’ submissions

demonstrate that the number of hours claimed is reasonable. Finally, this Court

considers whether the results in the case warrant adjustment of the lodestar figure

based on the remaining factors set out in section 73.092(2).

i. Reasonable Hourly Rates

The parties dispute whether Defendants’ attorneys’ rates for their work on

post-trial supplemental proceedings are reasonable. Having considered this issue in

depth in previous cases, this Court is familiar with the notion that a “reasonable

hourly rate” is “the prevailing market rate in the relevant legal community for similar

services by lawyers of reasonably comparable skills, experience, and reputation.”

Maner v. Linkan LLC, 602 F. App’x 489, 493 (11th Cir. 2015) (unpublished)

(quoting Norman v. Hous. Auth. of City of Montgomery, 836 F.2d 1292, 1299 (11th

Cir. 1988)). Moreover, section 73.092(2), Florida Statutes, similarly requires this

Court to consider the fee, or rate of fee, customarily charged for legal services of a

comparable or similar nature when calculating fees for supplemental proceedings in

an eminent domain case. § 73.092(2)(f), Fla. Stat. Finally, the Eleventh Circuit has

recognized that this Court itself is an expert regarding the hourly rates charged in the

local community. Norman, 836 F.2d at 1303.

The parties generally agree that the Northern District of Florida is the relevant

market for purposes of comparing rates to those charged by lawyers of reasonably

comparable skills, experience, and reputation. More specifically, Gainesville is the

appropriate market, given that this dispute concerned land in the Gainesville

Division of the Northern District of Florida, the case was filed in Gainesville, and

the jury trial occurred in Gainesville. See ACLU of Ga. v. Barnes, 168 F.3d 423, 437

(11th Cir. 1999) (“The general rule is that the ‘relevant market’ for purposes of

determining the reasonable hourly rate for an attorney’s service is ‘the place where

the case is filed.’ ” (quoting Cullens v. Ga. Dep’t of Transp., 29 F.3d 1489, 1494

(11th Cir. 1994))).

Defendants seek the following hourly rates for the attorneys who worked on

the post-trial supplemental proceedings: $450/hour for Andrew Prince Brigham,

$350/hour for Trevor Hutson, $325/hour for E. Scott Copeland, and $275/hour for

Chris C. Bucalo. ECF No. 280 at 13. Defendants have provided the Affidavit of

Andrew Prince Brigham, setting out the relevant experience of the attorneys who

have requested the above-listed rates. See ECF No. 281 at 3-10; see also ECF No.

281-2. Defendants’ attorneys’ qualifications are as follows.

Mr. Brigham is a senior attorney with 29 years of experience primarily in

representing property owners with property issues, including eminent domain cases.

ECF No. 280 at 3. He has been lead counsel in at least 40 valuation jury trials in

eminent domain, some of which involved record-high jury verdicts against DOT. Id.

at 4-5. Mr. Brigham’s experience extends to representing clients in condemnation

actions related to both interstate and intrastate natural gas pipelines, as well as

appellate work with at least eight reported opinions to his name. Id. at 5-6.

Mr. Hutson began practicing in 2013 and had about 2.5 years of experience at

the commencement of this action in 2016. Id. at 8. As of the date of this order, he

has nearly eight years of experience including two years working with landowners

and developers on real estate development and planning issues and five years of

experience in eminent domain and other property issues, including this case, a

related Natural Gas Act case, a 2014 jury trial with Mr. Brigham, and a record-setting

settlement with DOT in another eminent domain case. Id. at 8-9.

Mr. Copeland began practicing in 2015, with about a year of experience when

this case was first filed. ECF No. 280 at 9. Prior to becoming a lawyer, Mr. Copeland

earned a degree in Chemistry in 1993 and spent several years in church ministry.

ECF No. 280-2 at 2. Mr. Copeland has spent essentially his entire time in practice

on property issues, including this case, the related Natural Gas Act case, and two

jury trials with Mr. Brigham in 2016. ECF No. 280 at 9. As of the date of this order,

Mr. Copeland has almost six years of experience in the practice of law, essentially

all of which pertain to property rights and eminent domain.

Finally, Mr. Bucalo began practicing in 2018, in the middle of this litigation.

ECF No. 280 at 10. He has spent essentially all his time in practice working on

property issues, including this case, the related Natural Gas Act case, and a separate

jury trial in 2018 involving DOT and the Wekiva Parkway. Id. As of the date of this

order, Mr. Bucalo has almost three years of legal experience.

Defendants have also provided the declaration of Charles Stratton, an attorney

with over 40 years of experience and who has practiced eminent domain law in

Florida. ECF No. 277. Mr. Stratton opines that the hourly rates Defendants seek for

tasks performed on supplemental proceedings are reasonable and well within the

range of reasonable rates for this type of work in the Northern District of Florida.

He attests that he has experience as the chief eminent domain attorney for DOT,

followed by his entry into private practice and representation of property owners and

condemning authorities at the trial-court and appellate levels. Id. at 2. Mr. Stratton

now works in Tallahassee and charges his own hourly rate of $610. Id. at 3. Over

the course of his 40+ years of practice, Mr. Stratton has handled “dozens” of trials

and appeals throughout Florida, and attests to his familiarity with rates charged

throughout the Northern District of Florida. Id. at 2-3. Accordingly, I find Mr.

Stratton well qualified to opine as to the reasonableness of Defendants’ attorneys’

proposed rates, as he has decades of experience in the area of eminent domain in the

Northern District of Florida, including Gainesville, and knowledge of rates charged

for similar services by lawyers of comparable skill, experience, and reputation.

Mr. Stratton opines that, based on his knowledge and experience, a survey he

conducted of practitioners in the Northern District of Florida, and his review of Mr.

Brigham’s affidavit, he believes reasonable rates in the Northern District of Florida

for associate attorneys with less than five years of experience range from $250 to

$300, associates with greater than five years of experience range from $350 to $400,

and senior attorneys range from $450 to $800. ECF No. 277 at 3-4. Mr. Stratton

further opines that his review of the requested rates in this case are well within the

range of reasonable fees with which Mr. Stratton is familiar. Id.4

Plaintiff objects to these rates, citing past decisions by this Court granting fee

awards for rates only as high as $375/hour in Gainesville. Plaintiff asserts that

Defendants rely on non-local rates for work performed throughout the state of

4 Mr. Stratton opines that Mr. Brigham’s fee of “$400” is reasonable. ECF No. 277 at 4.

But this Court is operating with the understanding that Mr. Brigham has proposed a rate of

$450/hour. Whether or not Mr. Stratton’s declaration contains a scrivener’s error or a

misunderstanding as to the rate Mr. Brigham is seeking, this Court is not bound by his opinion.

Moreover, Mr. Brigham’s proposed rate of $450 is still well within the range of reasonable rates

that Mr. Stratton opines are charged for senior attorneys in the Northern District of Florida, i.e.,

$450 to $800.

Florida, which do not reflect the reasonable rates associated with comparable work

performed in Gainesville. Ultimately, Plaintiff asks this Court to cap the rates at

$375/hour for Andrew Prince Brigham, $250/hour for Trevor Hutson, $200/hour for

E. Scott Copeland, and $200/hour for Chris C. Bucalo.

In effect, Plaintiff is arguing that all reasonable hourly rates in Gainesville are

capped at $375/hour, regardless of the nature of the services provided, the

complexity of the issues, or the attorney’s experience and reputation. This does not

make sense, nor is it the law. Moreover, Plaintiff takes the untenable position that

because Defendants’ attorneys charge the same rates for work performed throughout

Florida, these rates are automatically unreasonable in the Gainesville market. But

just because an attorney charges $450/hour for similar work in Miami and Pensacola,

or Key West and Live Oak, does not mean that hourly rate is unreasonable per se.5

Plaintiff’s argument also implicitly ignores this Court’s findings from another

case that Plaintiff cites for other purposes. Specifically, in Beta Upsilon Chi v.

Machen, No. 1:07cv135-MW/GRJ, 2014 WL 4928902, *1 (N.D. Fla. Oct. 1, 2014),

this Court awarded $235,278.25 in district-level attorney’s fees to the plaintiff in a

First Amendment challenge to the University of Florida’s refusal to grant the

plaintiff status as a registered student organization. Beta Upsilon Chi did not involve

5 Nor, for that matter, does it make a per se reasonable rate. Again, the relevant inquiry

here is whether the proposed rate is in line with the prevailing market rate for similar work

performed by attorneys with reasonably comparable skill, experience, and reputation.

a full-blown jury trial like this case, but it did involve a preliminary injunction

hearing, an interlocutory appeal, and two additional appeals related to the district

court’s orders on attorney’s fees. Thus, it is not a perfect analog, but it is a better

analog to this case than the cases Plaintiff cites involving straightforward FLSA

settlements and defaulting defendants, because the fee award contemplated services

(like oral argument at a preliminary injunction hearing) that are more akin to trial

time than negotiating an FLSA settlement.

Moreover, Beta Upsilon Chi undermines Plaintiff’s argument that the legal

market in Gainesville is some monolith that sets a ceiling for fees at $375 an hour.

The fee award in Beta Upsilon Chi included hourly rates ranging from $200 for new

associates to $400 and $425 for more experienced lawyers with 17 to 32 years’

experience and who specialized in First Amendment law. Id. at *8; see also Case

No. 1:07cv135-MW/GRJ, ECF No. 383-2 (Supplemental Declarations in Support of

Amended Motion for Attorney Fees). Mind you, these rates were set in 2014.

Though inflation is by no means astronomical, Defendants’ claimed rates ranging

from $275 for an associate with almost three years’ experience at the date of the fee

request to $450 for a senior attorney with 29 years of specialized experience for a

complex eminent domain action are entirely in line with the $200-$425 range this

Court approved in 2014 in Beta Upsilon Chi.

And yet, Plaintiff hangs its hat on the fact that this Court has reduced rates in

other, non-comparable Gainesville cases. Specifically, Plaintiff points to this Court’s

decision in Brown v. Lawn Enforc. Agency, Inc., 369 F. Supp. 3d 1224 (N.D. Fla.

2019), which involved an FLSA dispute that this Court noted was not particularly

time-consuming, novel, or difficult, and which did not require exceptional skill. Id.

at 1227 n.1. Though Plaintiff sought $425/hour for the work performed in Brown,

this Court credited the Defendant’s fee expert and ultimately held that $375/hour

was reasonable given the circumstances. See id. at 1227 n.2 (noting that “this Court

disagrees that $375 would be a maximum” and finding that $375 “is closer to the

midrange given the circumstances” (emphasis added)).

Similarly, Plaintiff points to this Court’s decision in Choice Hotels Int’l v.

S&V Enters. of Gainesville, No. 1:17cv177, 2018 WL 5818372, *5 (N.D. Fla. Mar.

29, 2018), where this Court approved a fee request in a Lanham Act case where the

Defendant was a defaulted nonparticipator in the action. There, the plaintiff sought

fees ranging in rates from $195 to $350/hour, and this Court agreed that the requested

rates were reasonable. But this case provides little in support of Plaintiff’s request to

cap Defendants’ attorney’s rates at $375 in an utterly distinguishable case that

involves entirely different and complex issues.

Plaintiff’s remaining citations similarly fail to persuade this Court that a rate

reduction is in order. Instead, Plaintiff continues to rely on distinguishable cases

from the Pensacola Division that involved (1) a relatively straightforward contract

dispute and (2) an FLSA action that involved another nonparticipating defendant

who did not contest the claimed rate of $375/hour. See ECF No. 290 at 5-6.

Certainly, Plaintiff cannot reasonably contend that the rates approved in these cases

are representative of the rates “customarily charged for legal services of a

comparable or similar nature” to the complex, years-long Natural Gas Act

proceeding that Plaintiff filed in Gainesville. See § 73.092(2)(f), Fla. Stat. Instead,

they are inapposite examples of reasonable rates charged for legal services of an

entirely different nature in a different legal market. Indeed, Plaintiff’s citation to

cases and rates approved in the Pensacola Division does nothing to support its

argument that rates should be capped at $375 in the Gainesville Division.

Ultimately, this Court finds Defendants’ proposed rates for the work they

performed in post-trial supplemental proceedings to be reasonable. This finding is

based on both the materials filed in support of Defendants’ fee request setting out

the attorneys’ respective skill and years of experience, the opinion of Mr. Stratton

finding Defendants’ requested fees to be within the range of reasonable rates in this

legal market, and taking into consideration this Court’s own knowledge and

experience regarding hourly rates charged by attorneys in Gainesville.

Specifically, Mr. Brigham, seeking the highest rate of $450/hour, has decades

of experience and specialized knowledge gleaned from representing landowners in

eminent domain cases in Florida at both the trial level and on appeal. He represented

Defendants as lead counsel, seeing this case through from the beginning in 2016, to

a jury trial in 2018, on appeal, and in post-trial litigation through 2021. His work

involved litigating novel issues of national importance and complexity—the nature

of which is unlike the simple FLSA or default cases Plaintiff cites.

Similarly, Mr. Hutson is a knowledgeable attorney with nearly eight years of

experience in the areas of property rights and eminent domain. He has assisted Mr.

Brigham throughout this case. Based on Mr. Stratton’s affidavit and this Court’s

knowledge of reasonable rates charged in Gainesville, Mr. Hutson’s proposed rate

of $350/hour is reasonable given the complexity of this case and his own specialized

experience.

This Court agrees with Mr. Stratton’s opinion that Mr. Copeland’s rate of

$325 is on the higher end for an attorney with only about a year of experience when

he began working on this case in 2016; however, this Court finds the rate properly

reflects what other attorneys would reasonably charge with the amount of experience

Mr. Copeland currently possesses. Similarly, this Court finds Mr. Bucalo’s rate of

$275 is reasonable for an associate of roughly three years’ experience.

Here, it is appropriate to apply current rates to account for the delay in

receiving payment. Gray ex rel. Alexander v. Bostic, 613 F.3d 1035, 1045 (11th Cir.

2010). The litigation in this case has been protracted and involved an extraordinary

outlay of hours in the trial-level litigation, along with Plaintiff’s unsuccessful appeal.

To compensate for the exceptional and unanticipated delay in payment, it is

appropriate to use current rates when calculating the fee award. Therefore, fees based

on Defendants’ proposed, current rates will be awarded here.

ii. Number of Hours Reasonably Expended

The next step in the computation of the lodestar is a determination of

reasonable hours expended on the litigation. Excluding 2.1 hours related to appellate

work, which will be addressed separately below, Defendants expended 221.5 hours

in litigating post-trial matters purported to be “supplemental proceedings.”6 As this

Court already noted, Defendants cannot be compensated for fees incurred in

litigating the motions for new trial, to amend the judgment, and for prejudgment

interest, as these issues are encompassed in the “benefits achieved” fee award. This

Court’s analysis of Defendant’s post-trial time sheets, ECF No. 281-4, yields a rough

cut of 31.5 hours of work by Mr. Brigham and 6.6 hours of work by Mr. Copeland

for time entries related to work on these matters.7 This leaves 183.4 hours expended

6 The 2.1 hours of appellate work—a separate category of fees available under section

73.131, Florida Statutes, discussed in more detail below—includes 2 hours that Mr. Brigham spent

“review[ing the] Notice of Appeal” on February 21, 2019, and 0.1 hours spent “review[ing]

[Plaintiff’s] Transmittal of Appeal to USCA” on February 22, 2019. These fees are excluded from

the supplemental proceedings fee award as they are separately encompassed by Defendants’

appellate fee award.

7 Importantly, this Court is not expected to be a “green-eyeshade accountant” seeking to

“achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). Rather, this Court endeavors

“to do rough justice” in calculating the reasonable fee award. Id.

in litigating post-trial matters. Multiplied by these attorneys’ reasonable hourly rates

yields a lodestar of $66,842.50.8

Plaintiff raises two remaining objections to certain billing entries submitted

by Defendants. See ECF No. 290 at 14-19. After a careful review of the objections,

this Court will make the following reductions in calculating the lodestar figure.

First, Plaintiff asserts that Defendants’ time litigating fees and costs must be

reduced. Plaintiff concedes that time spent litigating entitlement to fees, costs, and

the amount of costs is compensable under section 73.092. See ECF No. 290 at 14-

15 (“The parties agree post-trial time litigating entitlement to costs, the amount of

costs, and entitlement to fees is awardable.”). However, Plaintiff asserts a fee award

for time litigating the amount of fees is not allowed under Florida law. Id. at 15.

Plaintiff is correct that time spent litigating the amount of attorney’s fees is

not compensable. See Dep’t of Transp., State of Fla. v. Robbins & Robbins, Inc., 700

So. 2d 782, 785 (Fla. 5th DCA 1997). Defendants assert, however, that they have

already excluded time spent litigating the amount of fees from their computations.

See ECF No. 280 at 46 (“Only time relating to the entitlement to attorneys’ fees (so

that, when appropriate, time entries were prorated at 50% to exclude time relating to

the amount of attorneys’ fees) is recorded or time relating to either entitlement or

8 (65.2 x $450 = $29,340) + (34.7 x $325 = $11,277.50) + (43.5 x $350 = $15,225) + (40

x $275 = $11,000). See, e.g., ECF No. 281-4 (charting total hours expended on post-trial matters).

amount of those items of costs (so that, relating to costs, there was no proration).”).

Plaintiff rejects this assertion and contends that Defendants essentially block-billed

compensable and non-compensable tasks, and that even after reducing their time by

50%, the amount of time spent litigating entitlement to fees post-judgment is

unreasonable. See ECF No. 290 at 16. Plaintiff objects to 141.6 hours, totaling

$51,207.50 in fees, for the allegedly block-billed tasks related to entitlement to fees

and costs and amount of fees.9 ECF No. 290 at 16. Specifically, Plaintiff asserts

Defendants have inadequately segregated recoverable fees from nonrecoverable

fees.

A review of Defendants’ billing entries reveals eight entries exceeding four

hours: one logged by the highest paid trial attorney, Mr. Brigham, and seven by a

less-senior attorney and the lowest-paid trial attorney. See ECF No. 281-4. The

description of the tasks completed in these entries allow this Court to ascertain the

services rendered.10 Accordingly, this Court will not deduct these time entries from

9 40 hours by Bucalo ($11,000), 48.8 hours by Brigham ($21,960), 43.5 hours by Hutson

($15,225) and 9.3 hours by Copeland ($3,022.5) totaling $51,207.50.

10 For example, see Mr. Brigham’s entry at ECF No. 281-4 at 3 (“Continue Draft Amended

Affidavit of Attys’ Fees and Costs (Statement of Claim) and amended exhibit thereto; Continue

Draft Declaration of Andrew Prince Brigham; Review/Comment on Other Declarations; Continue

Draft Motion for Attys’ Fees and Costs and Supporting Memorandum of Law”). See also id. at 6

(“Research Case law for Def’s Motion for Atty’s Fees and Cost and Supporting Memorandum re:

Expert Costs; Continue Draft Def’s Motion for Atty’s Fees and Cost and Supporting Memorandum

re: Costs; Review Declaration of Andrew Brigham re: Def’s Motion for Atty’s Fees and Cost and

Supporting Memorandum”) and id. (“Research Caselaw re Cost Analysis and Issues relating to

Pltf’s Statement of Position (Ray, Harris, Samnik); Continue Draft/Review Def’s Motion for

Atty’s Fees and Cost and Supporting Memorandum; Prepare Exhibits re: Def’s Motion for Atty’s

Defendants’ lodestar amount on the basis that they are impermissibly “block billed.”

See Home Design Servs., Inc. v. Turner Heritage Homes, Inc., No. 4:08-cv-355,

2018 WL 4381294, at *6 (N.D. Fla. May 29, 2018) (declining to eliminate requested

fees for block-billed time entries occurring in the days immediately before trial

because the court was able to ascertain from the billing descriptions in the block

entries the services rendered).

In addition, Mr. Bucalo’s and Mr. Hutson’s combined seven entries for time

exceeding four-hour blocks are specifically related to litigating costs and identify

the respective expert witnesses for whose work they seek compensation—a

compensable category of post-judgment “supplemental proceedings.” See, e.g., FN

10; see also ECF No. 281-4 at 6-7. Mr. Brigham’s single entry for more than four

hours generally entails litigating fees—though he has attested that he has already

deducted time spent on tasks related to litigating the amount, rather than entitlement,

to fees. See ECF No. 280 at 47. While this Court resolved the overarching matter of

entitlement to fees when it determined the choice of law for measuring compensation

ahead of trial, Defendants were left to litigate which categories of compensable fees

to which they are entitled following the trial in this case. Accordingly, having

reviewed the time sheets submitted in support of Defendants’ motion, this Court

Fees and Cost and Supporting Memorandum; Prepare/Review Exhibits re: Declaration of Andrew

Brigham”).

finds Mr. Brigham’s 50% reduction of time spent litigating fees to preclude recovery

for time spent on the amount of fees rather than entitlement to fees to be reasonable.

This Court also concludes that the remaining billing entries that Plaintiff has

objected to as “block billed” are compensable because the entries contain enough

detail to enable this Court to ascertain the work performed and because the amount

of time expended on the tasks was reasonable. Cf. Kearney v. Auto-Owners Ins. Co.,

713 F. Supp. 2d 1369, 1377–78 (M.D. Fla. 2010) (reducing requested attorneys’ fees

because “block billing” prevented an evaluation of whether or not the attorney spent

a reasonable amount of time on a task).

Finally, Plaintiff asserts this Court should reduce Defendants’ time related to

PNC Bank’s motion regarding disbursement of funds. ECF No. 290 at 18-19.

Specifically, Plaintiff seeks a 25% across-the-board reduction in Mr. Brigham’s and

Mr. Copeland’s time spent on this issue, as the relevant time entries are “vague and

not easily identifiable as compensable or non-compensable.” Id. at 18. Citing Ryan

v. City of Boynton Beach, 157 So. 3d 417 (Fla. 4th DCA 2015), Plaintiff asserts the

dispute between PNC Bank and Defendants regarding the alleged default on a

mortgage and resulting litigation regarding disbursement of condemnation proceeds

in the court registry “is entirely private,” and therefore not compensable. ECF No.

290 at 18. Ultimately, Plaintiff asks this Court to reduce Mr. Copeland’s time by 5.6

hours and Mr. Brigham’s time by 2.6 hours, representing a total reduction of $2,990

in fees.

The Ryan case is illuminating here. In that case, the City of Boynton Beach

recorded two orders imposing fines for code enforcement violations against a

property owner, whose property later became the subject of an eminent domain

proceeding initiated by the City. A consent judgment for $99,000 for the property at

issue was entered and the City deposited that amount into the court registry. Later,

the property owner sought disbursement of the $99,000, but the City filed its own

motion to withdraw funds to satisfy its liens for the code enforcement violations that

had been recorded before the eminent domain action began. On appeal, the property

owner sought fees from the condemnor for trial-level time spent litigating the issue

of disbursement and enforcement of the liens in the condemnation action. The court

held that he “was entitled to recover those trial level fees he incurred litigating

whether the City’s filing of a motion in the eminent domain proceedings was a

proper vehicle for the City to collect on its lien.” Id. at 421-22. This was so because

“[t]he issue of whether [the property owner] or the condemning authority was

entitled to the funds in the court registry simply would not exist but for the eminent

domain proceedings.” Id. at 422. However, the court also held that time spent

litigating the validity and enforceability of the liens was not additionally

compensable under section 73.092(2), because these issues “existed regardless of

the eminent domain proceedings and cannot be said to have directly arisen from, or

have been directly related to, the eminent domain proceedings.” Id.

Here, like in Ryan, time spent litigating PNC Bank’s entitlement to

condemnation proceeds deposited with the Clerk would not exist but for this eminent

domain proceeding. However, issues associated with the validity or enforceability

of the mortgage with PNC Bank exist regardless of the eminent domain case—

indeed, PNC Bank filed a separate mortgage foreclosure action to enforce its rights

under the loan. Accordingly, tasks performed in responding to the bank’s motion to

determine entitlement to the proceeds are compensable; however, any work

performed to determine the validity or enforceability of the mortgage agreement is

not compensable.

Here, PNC Bank’s motion specifically sought “an opportunity to show its

entitlement to the Proceeds.” ECF No. 242 at 3. Mr. Brigham expended roughly 11

hours and Mr. Copeland expended roughly 22.5 hours addressing PNC Bank’s

“emergency motion for disbursement of funds,” ECF No. 242, issues related to

disbursement, and apportionment. See ECF No. 281-4. This Court ordered

Defendants to file an expedited response, ECF No. 243, which they did on October

2, 2020, ECF No. 244, in addition to a sur-reply, ECF No. 251, which they filed on

November 6, 2020, ECF No. 252. Nearly all the time expended on apportionment

and disbursement of condemnation proceeds corresponds with the briefing deadlines

this Court set. The only time entry with which this Court takes issue is the two hours

Mr. Copeland spent “review[ing] documents in [the] PNC Bank Foreclosure

Action,” on October 1, 2020. ECF No. 281-4 at 4. As this Court has already

explained, this matter—the mortgage foreclosure action—is not wholly dependent

upon the eminent domain case and therefore not compensable under the court’s

reasoning in Ryan. Accordingly, Defendants’ time spent litigating the PNC Bank

apportionment and disbursement issue shall be reduced by two hours—or $650 of

Mr. Copeland’s time—yielding a total time expended on compensable, post-

judgment “supplemental proceedings” of 181.4 hours. This Court finds this number

of hours to be a reasonable amount of time expended on the post-trial matters.

Multiplied by these attorneys’ reasonable hourly rates yields a lodestar of

$66,192.50 for compensable post-judgment “supplemental proceedings.”11

iii. Remaining Factors under § 73.092(2)(a)-(g)

Finally, in considering a reasonable fee award for post-trial supplemental

proceedings, this Court considers the remaining factors set out in section

73.092(2)(a)-(g).

11 (65.2 x $450 = $29,340) + (32.7 x $325 = $10,627.50) + (43.5 x $350 = $15,225) + (40

x $275 = $11,000). See, e.g., ECF No. 281-4 (reducing total hours expended on compensable post-

trial matters by two hours re: Mr. Copeland’s time spent reviewing foreclosure action documents).

1. The novelty, difficulty, and importance of the questions involved:

This case involved novel, difficult, and important questions pertaining to the

choice of law for determining the proper compensation measure when a private

entity takes a private citizen’s property pursuant to its authority under the Natural

Gas Act. The importance of this question cannot be understated given the interests

the property owners have in receiving just compensation for their property.

2. The skill employed by the attorney conducting the case:

Defendants’ attorneys were skilled litigators who ultimately achieved a good

result for their clients at trial in this case.

3. The amount of money involved:

An enormous amount of time and money were involved in this case from the

perspective of the property owners—ultimately, the jury awarded almost a million

dollars to Defendants when Plaintiff originally offered a small fraction of that

amount to purchase their property. See ECF No. 280-6 (initial offer of $59,700).

4. The responsibility incurred and fulfilled by the attorney:

The case was defended by Mr. Brigham’s firm and each of the attorneys

seeking fees for post-trial work shared responsibilities in litigating entitlement to

fees and costs and defending against PNC Bank’s motion regarding disbursement of

the condemnation proceeds.

5. Any attorney’s fee award made under § 73.092(1):

The parties have agreed that Defendants are entitled to a “benefits achieved”

fee award under section 73.092(1). This award exceeds $220,000 and encompasses

the work performed leading up to and including trial, and the benefits achieved at

trial and defending the verdict. While Defendants are entitled to this award, it does

not warrant any adjustment in the fee award for post-trial “supplemental

proceedings,” as these supplemental proceeding fees are not otherwise provided for

under section 73.092(1).

In short, this Court finds Defendants’ proposed hourly rates and the time

expended with certain adjustments excluding non-compensable tasks to be

reasonable.12 Accordingly, Defendants’ fee request for post-trial supplemental

proceedings is GRANTED in part. Defendants are entitled to $66,192.50 in

“supplemental proceeding” fees for 181.4 hours of time expended on these

proceedings multiplied by their reasonable hourly rates.

IV. Appellate Fees under § 73.131, Fla. Stat.

Defendants also seek attorney’s fees for time expended in defending the

judgment on appeal pursuant to section 73.131, Florida Statutes. Specifically,

12 These exclusions include time expended on the motion for new trial, motion to amend

the judgment, and motions for prejudgment interest (31.5 hours for Mr. Brigham and 6.6 hours for

Mr. Copeland), appellate tasks that Mr. Brigham performed (2.1 hours), and Mr. Copeland’s

review of documents from the separate foreclosure action (2 hours).

Florida law entitles a defendant in an eminent domain action to recover reasonable

appellate fees, except when the defendant takes an appeal wherein the lower court’s

judgment is affirmed. See § 73.131(2), Fla. Stat. (“The petitioner shall pay all

reasonable costs of the proceedings in the appellate court, including a reasonable

attorney’s fee to be assessed by that court, except upon an appeal taken by a

defendant in which the judgment of the lower court shall be affirmed.”). “[T]he

lodestar approach should be used in establishing the amount of the reasonable

appellate fees.” State, Dep’t of Transp. v. Skinners Wholesale Nurs., Inc., 736 So.

2d 3, 7 (Fla. 1st DCA 1998).

A fee applicant must set out the general subject matter of the time expended

by the attorney “with sufficient particularity so that the court can assess the time

claimed for each activity.” Norman, 836 F.2d at 1303. Excessive, redundant, or

otherwise unnecessary hours should be excluded from the amount claimed. Id. at

1301. A fee applicant must exercise billing judgment by excluding “excessive,

redundant, or otherwise unnecessary [hours].” Hensley v. Eckerhart, 461 U.S. 424,

434 (1983). Where a fee applicant does not exercise billing judgment, “courts are

obligated to do it for them.” ACLU of Ga., 168 F.3d at 428. When a request for

attorneys’ fees is unreasonably high, the court “may conduct an hour-by-hour

analysis or it may reduce the requested hours with an across-the-board cut,” but it

cannot do both. Bivins v. Wrap It Up, Inc., 548 F.3d 1348, 1350–51 (11th Cir.

2008).13 The Eleventh Circuit has “recognized that in cases ‘where fee

documentation is voluminous,’ it will not be feasible to require a court to ‘engage in

such a precise [hour-by-hour] review.’ ” Villano v. City of Boynton Beach, 254 F.3d

1302, 1311 (11th Cir. 2001) (quoting Loranger v. Stierheim, 10 F.3d 776, 783 (11th

Cir. 1994)) (finding 569.3 hours to be sufficiently voluminous that no hour-by-hour

analysis was required). Accordingly, this Court will address each of Plaintiff’s

specific objections, performing an hour-by-hour analysis where “feasible” and an

across-the-board cut where appropriate.

Here, Defendants seek $103,404.22 in appellate fees, including $53,895 for

work performed by Mr. Brigham’s firm and William K. Crispin, plus $49,800 for

work performed by attorneys at Larson O’Brien and True North, LLC. ECF No. 281

at 6. Plaintiff raises numerous objections to Defendants’ appellate time entries and

hourly rates and ultimately seeks a reduction in appellate fees to $44,441.25.

Once again, this Court begins with an analysis of the hourly rates that

Defendants’ appellate attorneys seek. This Court then considers whether

Defendants’ submissions demonstrate that the number of hours claimed for work on

the appeal is reasonable.

13 To be clear, this Court may apply both an hour-by-hour reduction to calculate the lodestar

and an across-the-board reduction after computing the lodestar to account for the results obtained

in the litigation. See Fiedler v. Anglin’s Beach Café, LLC, No. 15-60989, 2017 WL 1278632, at

*3 (S.D. Fla. Apr. 3, 2017) (construing Bivens).

A. Reasonable Hourly Rates

The parties dispute whether the rates that Defendants’ attorneys seek for their

appellate work are reasonable. Defendants seek the following hourly rates for the

attorneys who worked on the appeal: $650/hour for Thor Hearne, $525/hour for

Stephen Davis, $500/hour for Tim Belz, $450/hour for Andrew Prince Brigham,

$400/hour for Matt Belz, $325/hour for E. Scott Copeland, $200/hour for William

Crispin, and $180/hour for Kathryn Payne. See ECF No. 281-9 (appellate time

entries for Hearne, Davis, Belz, Belz, and Payne) & ECF No. 281-8 (appellate time

entries for Brigham, Copeland, and Crispin).14 Defendants have provided the

Affidavits of Andrew Prince Brigham and Thor Hearne setting out the relevant

experience of the attorneys who have requested the above-listed rates. See ECF No.

281 at 3-10, ECF No. 281-2, and ECF No. 266. Their qualifications are as follows.15

Thor Hearne is an experienced attorney with over thirty years of practice. ECF

No. 266 at 1. He has been lead counsel in many high-stakes and complex federal

trial-level and appellate cases throughout the United States, including numerous

14 Mr. Brigham’s time sheets list an hourly rate of $425/hour. See ECF No. 281-8 at 6. But

the math to reach a total of $48,825 in appellate fees for Mr. Brigham requires a rate of $450 x

108.5 hours. See id. Nowhere else in Defendants’ fee request is there mention of a proposed rate

of $425/hour for Mr. Brigham’s appellate work. Accordingly, this Court construes the $425 fee in

Mr. Brigham’s billing records to be a scrivener’s error and will proceed with the understanding

that Mr. Brigham seeks a fee of $450/hour for his appellate work.

15 Mr. Brigham’s and Mr. Copeland’s qualifications are the same as detailed in the

“supplemental proceedings” fee section of this Order and apply with equal force to their appellate

fee request.

cases involving property rights and eminent domain in Florida. Id. at 1-2, 7. Further,

Mr. Hearne has worked with Mr. Brigham on many matters and opines that Mr.

Brigham has an “outstanding reputation as a trial attorney in eminent domain

litigation.” Id. at 13.

Stephen Davis is a partner with Mr. Hearne’s firm. ECF No. 281-7 at 1. He

concentrates his practice in federal appeals at the Federal Circuit Court and U.S.

Supreme Court, with specialization in election law. Id. Timothy Belz and Matt Belz

are both Of Counsel to Mr. Hearne’s firm. Id. at 2. Timothy Belz is an experienced

attorney who was previously a partner of 24 years elsewhere before joining Mr.

Hearne. Id. Before that, he was a trial attorney with the U.S. Department of Justice.

Id. His work largely focuses on commercial, probate, and constitutional disputes at

the trial and appellate levels. Id. And, finally, Matt Belz is an attorney with roughly

13 years of experience as a litigator. Id. His focus is on federal litigation and appeals.

Id.

Defendants have also provided the declaration of M. Stephen Turner, an

attorney with over 50 years of experience, including appellate litigation. ECF No.

279. Mr. Turner has worked as a federal law clerk, Air Force JAG Officer, special

assistant Florida Attorney General, state agency general counsel, and in private

practice. Id. at 2. He has broad appellate experience and has appeared before Florida

appellate courts, the Florida Supreme Court, and the Eleventh Circuit in a variety of

cases. Id. Mr. Turner practices in the Northern District of Florida, and currently

charges rates ranging from $500-650 when retained for matters involving appellate

litigation. Id. at 2-3. Accordingly, I find Mr. Turner to be familiar with appellate

rates charged throughout the Northern District of Florida and well qualified to offer

his opinion on the reasonableness of Defendants’ appellate attorneys’ rates.

Mr. Turner opines that, based on his knowledge and experience,

communication with other practitioners in the Northern District of Florida, and his

review of Mr. Brigham’s and Mr. Hearne’s affidavits and accompanying exhibits,

he believes reasonable rates in the Northern District of Florida for associate attorneys

with three to five years of experience range from $250 to $300, associates with five

to seven years of experience range from $300 to $350, associates with eight to ten

years of experience range from $325-375, and senior attorneys with greater than ten

years of experience range from $450 to $650. ECF No. 279 at 3-4. Mr. Turner further

opines that his review of the requested rates in this case are well within the range of

reasonable appellate rates with which Mr. Turner is familiar. Id.

Plaintiff again objects to the rates Defendants request, relying on past

decisions by this Court granting fee awards for rates as high as $375/hour in

Gainesville. Plaintiff asserts this Court should set an artificial ceiling on appellate

rates without taking into consideration the experience or reputation of the attorneys,

the nature of the services provided, or the complexity of the issues involved, and

without comparison to rates awarded in cases involving comparable issues. Once

again, this is not the law.

Plaintiff asserts that Defendants rely on non-local rates, which do not reflect

the reasonable rates associated with comparable work performed in Gainesville.

Plaintiff specifically takes issue with Defendants’ request for rates for non-local

attorneys with “specialized expertise.” ECF No. 290 at 7. Ultimately, Plaintiff asks

this Court to cap the rates at $375/hour for Andrew Prince Brigham, Thor Hearne,

and Tim Belz, $350/hour for Stephen Davis, $300/hour for Matt Belz, and $200/hour

for E. Scott Copeland and William Crispin. Id. at 8.

Plaintiff’s request to cap appellate rates at $375/hour has nothing to do with

the services provided, the subject matter of the appeal, or the experience and

reputation of the attorneys. Instead, Plaintiff seeks to cap rates that any lawyer can

charge for appellate work in Gainesville at $375, irrespective of the nature of the

services provided. Plaintiff also asserts that Defendants are seeking non-local rates

for attorneys with Mr. Hearne’s firm, given that these lawyers are based in

Washington, D.C. But this assertion is belied by Defendants’ fee expert, who

practices in this district and charges up to $650 in appellate matters. The fact that

Defendants hired some non-local attorneys does not automatically transform their

proposed hourly rates into “non-local rates.” Simply put, just because a rate is higher

than one would like to pay does not make it a “non-local rate.” In addition, Plaintiff

does not address Defendants’ fee expert in its response to Defendants’ motion, nor

does Plaintiff offer any evidence to challenge Mr. Turner’s opinion that Defendants’

attorneys’ proposed rates are reasonable.

Despite Plaintiff’s arguments to cap rates at $375/hour, this Court finds

Defendants’ proposed rates for their appellate work to be reasonable. This Court’s

finding is based on both the materials filed in support of Defendants’ fee request

setting out the attorneys’ respective skill, reputation, and years of experience and

taking into consideration this Court’s knowledge of hourly rates charged by

attorneys in Gainesville. Moreover, this Court is mindful that Mr. Hearne, Mr. Davis,

Mr. T. Belz, and Mr. M. Belz have already exercised billing judgment and reduced

their non-local rate of $899 and $747 to more reasonable local rates of $650, $525,

$500, and $400, respectively.

B. Number of Hours Reasonably Expended

The next step in computing the lodestar is a determination of reasonable hours

expended on the litigation. Defendants expended roughly 304.5 hours in litigating

the appeal in this case.16 Multiplied by these attorneys’ reasonable hourly rates yields

a lodestar of $155,545.17 But Mr. Hearne’s firm limited their requested fee award—

16 This includes about 134 combined hours for Mr. Brigham, Mr. Copeland, and Mr.

Crispin, and about 170 combined hours for attorneys with Mr. Hearne’s law firm.

17 $99,600 requested for attorneys with Mr. Hearne’s firm, $48,825 for Mr. Brigham,

$5,070 for Mr. Copeland, and $2,050 for Mr. Crispin. See, e.g., ECF No. 281-8 and ECF No. 281-

9 (charting total hours expended on appeal).

taking into consideration time spent on a separate appeal of another Natural Gas Act

case that involved similar parties—by reducing by half their hours expended and

yielding a total reduction in fees of $49,800. In addition, for reasons that are not

clearly explained, Defendants have omitted Mr. Crispin’s time from their final

lodestar calculation. Compare ECF No. 281 at 6 with ECF No. 281-8. Accordingly,

the total adjusted loadstar is $103,695, based on the $49,800 sought for attorneys

working with Mr. Hearne at Larson O’Brien and True North, plus $48,825 for Mr.

Brigham, and $5,070 for Mr. Copeland. See id.

Plaintiff raises numerous objections to specific billing entries submitted by

Defendants. See ECF No. 290 at 19-27. After a careful review of the objections, this

Court will make the following reductions in calculating the lodestar figure.

First, Plaintiff asserts this Court should reduce the time that some attorneys

spent solely reviewing the work of others. Specifically, Plaintiff asks this Court to

exclude all the time that Mr. Copeland and Mr. Crispin expended in working on the

appeal as their time was spent in short increments, either corresponding with other

attorneys or reviewing drafts without making any significant contributions to the

briefs or oral argument preparations. ECF No. 290 at 20-21. But based on the total

amount of fees that Defendants seek for work performed by Mr. Brigham and his

co-counsel, it appears Mr. Crispin’s time has already been excluded from

Defendants’ lodestar calculation. Moreover, Defendants’ fee agreements apparently

did not contemplate Mr. Crispin’s scope of work to include appellate matters.

Compare ECF No. 281-1 (trial-level employment agreement listing Law Offices of

William K. Crispin) and ECF No. 281-6 (addendum to employment agreement for

appellate work listing Brigham Property Rights Law Firm PLLC and Larson

O’Brien, LLC and letter of engagement from True North). Based on the exclusion

of Mr. Crispin’s time in Defendants’ proposed lodestar amount and the exclusion of

Mr. Crispin from the appellate addendum to the fee agreement with Defendants, this

Court agrees with Plaintiff’s objection and will not include Mr. Crispin’s time in the

final lodestar calculation.

Mr. Copeland’s time, though, is a different matter. A review of his appellate

billing records shows he worked on the appeal at numerous half-hour-or-less

intervals with a couple of larger chunks of time devoted to more substantial

contributions. See ECF No. 281-8 at 1-2. Specifically, Mr. Copeland expended a

combined three hours in drafting an appellate mediation letter and attending the

appellate mediation, in addition to an hour and a half reviewing Plaintiff’s appellate

brief, a half hour drafting a motion for extension of time to file Defendants’ brief, a

half hour reviewing supplemental authority, and a combined three hours reviewing

Defendants’ draft brief, attending oral argument, and corresponding regarding

appellate costs. This time, combined with the remaining short intervals spent

reviewing filings and corresponding about the appeal, amounts to a mere 15.6 hours

spread across 18 months. Contrary to Plaintiff’s position, Mr. Copeland’s time is not

excessive, nor is it comparable to the 53.3 hours of “highly questionable” time an

attorney spent conferencing and reviewing filings in Wilson v. Dep’t of Child. &

Fams., No. 3:02-cv-357-J-32TEM, 2007 WL 1100469, *4 (M.D. Fla. April 11,

2017). Accordingly, this Court will not exclude all of Mr. Copeland’s time.

However, this Court has concerns regarding the reasonableness of some billing

entries pertaining to frequent internal communications. This Court will address these

concerns below.

Plaintiff objects to billing for “extensive internal communications,” and

ultimately asks this Court to reduce Defendants time by 13.3 hours for Mr. Brigham,

4.4 hours for Mr. Copeland, 10.8 hours for Mr. Davis, 4.9 hours for Mr. Hearne, and

0.4 hours for Mr. T. Belz, for a combined 33.8 hour reduction. Plaintiff asserts that

while some internal communication is necessary, billing for more than 30 hours is

improper and should not be permitted.

Here, Mr. Brigham expended 108.5 hours on the appeal—roughly 90% of

which was spent on substantial contributions to conferencing with co-counsel on

strategy, preparing and editing Defendants’ appellate brief, and preparing for and

attending oral argument. See ECF No. 281-8 at 4-9. Mr. Hearne expended 45.5 hours

on the appeal (reduced by 50% so as not to include time spent on the related

appeal)—almost all of which was spent on substantial contributions to conferencing

on appellate strategy, researching, drafting, and editing the appellate brief, and

preparing for oral argument. See ECF No. 281-9 at 1-5. Mr. Davis expended about

37 hours on the appeal (reduced by 50% so as not to include time spent on the related

appeal)—roughly 14.5 hours of which was related to conferencing, corresponding,

and strategizing with co-counsel. Id. Mr. T. Belz expended 0.45 hours on the appeal

(reduced by 50% so as not to include time spent on the related appeal)—half of

which involved a “conference with team members” ahead of a court hearing. Id. Mr.

M. Belz expended 0.5 hours on the appeal (reduced by 50% so as not to include time

spent on the related appeal)—all of which involved drafting a reply to Plaintiff’s

response to Defendants’ motion to transfer consideration of attorney’s fees and costs.

Id. And Ms. Payne—a “project assistant”—expended 1.5 hours on the appeal

(reduced by 50% so as not to include time spent on the related appeal). Id.; see also

ECF No. 281-7 (True North firm employee qualifications listing Ms. Payne as a

“project assistant”).

As an initial matter, Ms. Payne’s time should be excluded from Defendants’

appellate attorney’s fees award. Purely clerical or secretarial tasks should not be

billed regardless of who performed them. Bromagen v. Comm’r of Soc. Sec., No.

6:10-cv-1617, 2011 WL 1519940, at *1 (M.D. Fla. Mar. 28, 2011) (citing Missouri

v. Jenkins, 491 U.S. 274 (1989)). Here, Ms. Payne, a “project assistant,” billed time

preparing “research materials” and “appeals materials” for Mr. Hearne. This appears

to be purely clerical work, which is not compensable with attorney’s fees.

As for a reduction based on the many “internal communications,” this Court

agrees that some of appellate counsel’s time entries are imprecise in the manner they

group tasks together and that the billing records, particularly Mr. Copeland’s and

Mr. Davis’s, lack a degree of billing judgment when it comes to seeking

compensation for numerous conferences. This Court finds a minor reduction for

excessive billing is appropriate with respect to Mr. Copeland and Mr. Davis based

on their many internal conferences and reviews. Accordingly, Mr. Copeland’s time

shall be reduced by 3 hours—representing an approximately 50% reduction in his

many time entries spent reviewing or drafting emails at 0.1- and 0.2-hour intervals.

Mr. Davis’s time shall be reduced by 4.5 hours—representing an approximately 50%

reduction in his many entries involving conferencing and corresponding with other

attorneys and administrative personal with the Eleventh Circuit. This leaves Mr.

Copeland with 12.6 hours and Mr. Davis with 32.5 hours, yielding a final lodestar

amount of $99,982.50.18

Finally, Plaintiff asserts this Court should reduce Defendants’ appellate fee

award due to “limited results” at the Eleventh Circuit. ECF No. 290 at 23-25. Florida

18 Including $52,920 for attorneys Brigham and Copeland ((12.6 x $325 = $4,095) + (108.5

x $450 = $48,825)) and $47,062.5 for attorneys Hearne, Davis, T. Belz, and M. Belz ((45.5 x $650

= $29,575) + (32.5 x $525 = $17,062.5) + (0.45 x $500 = $225) + (0.5 x $400 = $200)).

courts have recognized that in calculating a fee award under section 73.131, “it may

be appropriate for the trial court to consider the result obtained [on appeal].”

Seminole Cnty. v. Boyle Inv. Co., 724 So. 2d 645, 646 (Fla. 5th DCA 1999) (citing

Lee Cnty. v. Tohari, 582 So. 2d 104, 105 n.1 (Fla. 2d DCA 1991)). This is so, perhaps

because section 73.131 mandates an appellate fee award in any case where the

condemnor is responsible for taking the appeal, even if the property owner has zero

success on appeal. See Denmark v. State Dep’t of Transp., 389 So. 2d 201 (Fla.

1980); see also Skinners, 736 So. 2d at 9 (“[I]t seems clear that the trial court is

authorized to increase or decrease the lodestar fee by a specific dollar amount to

reflect the attorney’s unusual success or failure in the case.”) (quoting Tohari, 582

So. 2d at 105)). Here, Plaintiff specifically asks this Court to reduce the fee award

by 30% considering the fact that the Eleventh Circuit—though affirming the

judgment in Defendants’ favor on appeal—found it lacked jurisdiction to consider

this Court’s ruling on entitlement to attorney’s fees absent a final order setting out

the amount of fees to be awarded. As explained below, Plaintiff’s request for a

“results obtained” reduction lacks merit.

Following entry of the amended judgment for Defendants, Plaintiff filed

notice that it was appealing the amended judgment, this Court’s order denying the

motion for new trial, and several interlocutory orders, including this Court’s order

denying Plaintiff’s motion for partial summary judgment, several evidentiary

rulings, and orders pertaining to jury instructions. See ECF No. 228. On August 3,

2020, the Eleventh Circuit issued a 13-page per curiam opinion holding that this

Court did not err in admitting the landowner testimony and any errors in the jury

instructions or Defendants’ arguments did not prejudice Plaintiff. See ECF No. 233.

The Eleventh Circuit affirmed Defendants’ award of compensation. Id. However,

since this Court had not yet determined an amount of fees to be awarded to

Defendants, the Eleventh Circuit held it lacked jurisdiction to consider the issue of

entitlement and dismissed that aspect of Plaintiff’s appeal. Id.

According to Plaintiff, the Eleventh Circuit’s dismissal of Plaintiff’s appeal

with respect to entitlement to attorney’s fees equates to a “limited” result for

Defendants, even though the judgment and compensation award was affirmed in

their favor. Moreover, Plaintiff asserts, the other issues that Defendant “won” on

appeal were already fully developed at the district court level and in earlier appeals

by Defendants’ same counsel, therefore their success is similarly “limited” given the

groundwork the attorneys had already laid. However, this Court is not persuaded

that the Eleventh Circuit’s dismissal of the fee issue that Plaintiff appealed translates

to “unusual failure” on the part of Defendants. Indeed, Defendants successfully

defended the amended judgment and their condemnation award on appeal. Had the

Eleventh Circuit ruled in Defendants’ favor on the issue of entitlement to attorney’s

fees, they would have been entirely successful, and Plaintiff would have been

entirely unsuccessful. Defendants’ success was not complete in this limited

respect—but this does not amount to an unusual failure that warrants a reduction in

Defendants’ appellate fee award. Accordingly, this Court, in its discretion, will not

reduce the appellate fee award based on the results obtained on appeal.19

For these reasons, Defendants’ motion for attorneys’ fees is GRANTED in

part with respect to their appellate fee request. Defendants are awarded $99,982.50

in appellate fees for 121.1 hours of work that attorneys Brigham and Copeland

performed and 78.95 hours that attorneys Hearne, Davis, T. Belz, and M. Belz

performed.20

V. Costs under § 73.091, Fla. Stat.

Finally, Defendants seek costs amounting to $108,404.22 as part of Florida’s

“full compensation” measure. ECF No. 283 at 28; see also ECF No. 281-5

(“Amended Renewed and Supplemented Bill of Costs”). Subject to Plaintiff’s

preserved objection regarding the choice of law determining the measure of

compensation under the Natural Gas Act, the parties have stipulated to an award of

costs for court reporting services amounting to $5,619.50. ECF No. 283 at 34.

19 Likewise, the results obtained on appeal were not unusually successful—nor have

Defendants sought a percentage increase in the fee award based on the results obtained on appeal—

accordingly, this Court finds an increase in the fee award is unwarranted.

20 $52,920 for attorneys Brigham and Copeland ((12.6 x $325 = $4,095) + (108.5 x $450

= $48,825)) and $47,062.5 for attorneys Hearne, Davis, T. Belz, and M. Belz ((45.5 x $650 =

$29,575) + (32.5 x $525 = $17,062.5) + (0.45 x $500 = $225) + (0.5 x $400 = $200)).

However, Plaintiff objects to additional amounts under Defendants’ remaining

categories of costs, and asserts this Court is limited by federal law when in it comes

to what costs it can award to Defendants. ECF No. 290 at 27-45.

To start, Florida law allows for recovery of reasonable costs in eminent

domain actions. Section 73.091, Florida Statutes, specifically provides:

(1) 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 and, when business damages are

compensable, a reasonable accountant's fee, to be assessed by that

court. No prejudgment interest shall be paid on costs or attorney’s fees.

. . .

(3) In assessing costs, the court shall consider all factors relevant

to the reasonableness of the costs, including, but not limited to, the fees

paid to similar experts retained in the case by the condemning authority

or other parties and the reasonable costs of similar services by similarly

qualified persons.

(4) In assessing costs to be paid by the petitioner, the court shall

be guided by the amount the defendant would ordinarily have been

expected to pay for the services rendered if the petitioner were not

responsible for the costs.

(5) The court shall make specific findings that justify each sum

awarded as an expert witness fee.

§ 73.091, Fla. Stat. (emphasis added).

Without question, reasonable expert witness fees are included in the

computation of reasonable costs. Moreover, expert witness fees are included in the

measure of “just compensation” in eminent domain actions. Seminole Cnty. v.

Chandrinos, 816 So. 2d 1241, 1244 (Fla 5th DCA 2002) (citing Dade Cnty. v.

Brigham, 47 So. 2d 602 (Fla. 1950)) (“Owners are entitled to expert witness fees,

which go to the establishment of just compensation.”).

On the other hand, Plaintiff argues that this Court is prohibited from resorting

to state law to determine the amount of compensable costs and may award only those

costs available under 28 U.S.C. § 1821 and 28 U.S.C. § 1920. Section 1920 limits

recoverable costs to certain categories; namely, (1) fees of the clerk and marshal, (2)

fees for printed or electronically recorded transcripts necessarily obtained for use in

the case, (3) fees and disbursements for printing and witnesses, (4) fees for

exemplification and the costs of making copies of any materials where costs are

necessarily obtained for use in the case, (5) docket fees, (6) compensation of court

appointed experts, interpreters, and other interpretation costs. See 28 U.SC. §

1920(1)-(6). In turn, section 1821(b) limits witness fees to $40 a day for attendance

in court or at a deposition. 28 U.S.C. § 1821(b). Plaintiff further asserts Defendants’

failure to address this argument or explain which remaining costs are awardable

under federal law leaves this Court with little to do but deny Defendants’ costs claim.

Plaintiff comes armed with case law showing costs—especially expert witness

fees—are generally limited by federal law. Specifically, the Supreme Court has held

“that absent explicit statutory or contractual authorization for the taxation of the

expenses of a litigant’s witness as costs, federal courts are bound by the limitations

set out in § 1821 and § 1920.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.

437, 445 (1987). In addition, the Eleventh Circuit has unequivocally held that in an

ordinary diversity action, “it is well settled that expert fees cannot be assessed in

excess of witness fees provided in § 1821.” Kivi v. Nationwide Mut. Ins. Co., 695

F.2d 1285, 1289 (11th Cir. 1983).

But Plaintiff’s argument implicitly hinges on application of Federal Rule of

Civil Procedure 54(d), which awards costs to “prevailing parties,” “[u]nless federal

statute, these rules, or a court order provides otherwise.” Fed. R. Civ. P. 54(d).

Specifically, the Supreme Court in Crawford interpreted the “logical conclusion

from the language and interrelation of” 28 U.S.C. §§ 1821 and 1920, and Rule 54(d),

to be that Ҥ 1821 specifies the amount of the fee that must be tendered to a witness,

§ 1920 provides that the fee may be taxed as a cost, and Rule 54(d) provides that the

cost shall be taxed against the losing party unless the court otherwise directs.”

Crawford, 482 U.S. at 441 (emphasis added). But this Court has already explained

that, by operation of Rule 71.1(l), this Court is not bound by Rule 54(d) in this case.

See Sabal Trail Transmission, LLC v. Real Estate, et al., No. 1:16cv63-MW/GRJ,

2017 WL 2783995, * (N.D. Fla. June 27, 2017) (“In any event, all that can be

gleaned from Rule 71.1(1)—and, more broadly, Rule 71.1 generally—is that this

Court is not bound by Rule 54(d).”). Rule 71.1(l) explicitly states that “[c]osts are

not subject to Rule 54(d).” Fed. R. Civ. P. 71.1(l). As this Court noted in its earlier

order, this provision is necessary to protect private property owners from a reduction

of their compensation awards, as the condemnors in such cases will typically be

“prevailing parties” ordinarily entitled to costs under Rule 54(d). Id.

Moreover, the Eleventh Circuit has recently explained that Kivi and cases like

it do not require automatic application of sections 1920 and 1821 in every federal

case. See Off Lease Only, Inc. v. Lakeland Motors, LLC, --- F. App’x ---, 2021 WL

485706, *3 (11th Cir. Feb. 10, 2021) (affirming award of expert witness costs as a

curative condition of a Rule 41(a)(2) dismissal). Further, Kivi notes an old Fifth

Circuit case where the court affirmed the district court’s decision to award expert

witness fees in excess of the federal cap even though the district court heard the case

by virtue of its diversity jurisdiction. See id. (discussing Henning v. Lake Charles

Harbor & Tunnel Dist., 387 F.2d 264, 265 (5th Cir. 1968)). Specifically, in Henning,

the Fifth Circuit affirmed an award of expert witness fees as costs in an eminent

domain case under Louisiana law. 387 F.2d at 267. The Fifth Circuit rejected the

argument that because the case had been removed to the district court based on the

court’s diversity jurisdiction, the district court had no authority to tax costs in excess

of the daily witness costs allowed under federal law. Id. (citing Kirby Lumber Corp.

v. Louisiana, 293 F.2d 82, 83 (1961) and Green v. Am. Tobacco Co., 304 F.2d 70

(5th Cir. 1962)). The Fifth Circuit held, instead, that the Louisiana Supreme Court

had found such expert witness fees were necessary and compensable as part of the

measure of just compensation in eminent domain proceedings, and were therefore

“a substantive requirement of Louisiana law, a substantive right of the landowners,

and binding upon this Court.” Id. at 267 (citing Erie R.R. Co. v. Tompkins, 304 U.S.

64 (1938)). In distinguishing Henning from the case before it in Kivi, the Eleventh

Circuit simply noted that the “entitlement to expert witness fees under Florida

Statutes is not a substantive right” like the costs at issue in Henning. 695 F.2d at

1289.

But neither Kivi nor Henning answer the question of whether Defendants’

claimed costs are compensable here. Henning involved the application of state law

by virtue of the Erie doctrine in diversity cases.21 And while cases like Crawford

and Kivi make broad pronouncements concerning the limitation on taxing witness

fees as costs to the losing party, they do not fit the context presented here.

This case is before this Court pursuant to its federal question jurisdiction under

the Natural Gas Act and is subject to Federal Rule of Civil Procedure 71.1, which

explicitly excludes application of Rule 54(d). Moreover, as this Court has already

held, where a private company vested with the power of the state seeks to take

property from private citizens for public use under the Natural Gas Act, the

substantive law of the state where the condemnation action is brought applies to

21 Moreover, Plaintiff points out that Fifth Circuit later called into question the logic

employed in Henning in a subsequent eminent domain case in which the United States was the

condemnor.

determine the measure of compensation. In Florida, just compensation includes

expert witness fees and other costs.

In an analogous case, the Third Circuit Court of Appeals noted Pennsylvania

law similarly allows for “recovery of professional fees such as appraisal, attorney,

and engineering fees,” in eminent domain actions, when it also held that state

substantive law applied to determine the measure of compensation in a Natural Gas

Act case. See Tenn. Gas, 931 F.3d at 245, 255. Though the Third Circuit did not

state in exact terms that costs included in a given state’s measure of compensation

are compensable in a federal case notwithstanding limitations set by sections 1821

and 1920, the recognition that “professional fees” for appraisals and engineering are

compensable inherently recognizes as much. Accordingly, this Court rejects

Plaintiff’s argument that sections 1821(b) and 1920 apply to bar taxation of certain

costs in this case. Instead, Defendants’ costs—including reasonable expert witness

fees as provided for under Florida law—are a necessary component of the just

compensation Plaintiff must pay for taking the Defendants’ property pursuant to the

Natural Gas Act.22

22 If Plaintiff were to have its way, not only would it completely ignore Rule 71.1(l), it

would effectively mean that Defendants’ “just compensation” would essentially be cut in half

based on the costs—including attorney’s fees and expert witness fees—due for defending their

case. More importantly, Plaintiff’s proposed rule would lead to a dystopian David-and-Goliath

scenario where the Government—by virtue of granting private entities the power to take property

from private citizens and severely limiting those citizens’ recoverable costs by operation of

sections 1821 and 1920—hands private company “Goliaths” an impenetrable shield to deflect any

resistance from small property owner “Davids.” In future eminent domain cases that involve

A. Reasonable Expert Witness Fees

The largest category of costs Defendants seek are expert witness fees.

“[C]ondemning authorities are able to provide expert witnesses and appraisers, and

if the defendant in condemnation proceedings is to be assured of full compensation[,]

he should have the same tools available to him in a defense of his right.” Cheshire

v. State Road Dep’t, 186 So. 2d 790, 791 (Fla. 4th DCA 1966). However, “[s]uch

costs . . . are subject to the close scrutiny of the court for the purpose of determining

that such costs are reasonable and were necessarily incurred in the defense of the

proceeding[.]” Id. (citations omitted). Accordingly, “[t]o be recoverable, experts’

fees must be reasonable, and the experts’ services must have been necessary.”

Garber v. State, Dep’t of Transp., 687 So. 2d 2, 3 (Fla. 1st DCA 1996) (citing Dade

Cnty. v. Midic Realty, Inc., 549 So. 2d 1207 (Fla. 3d DCA 1989) and Sarasota Cnty.

v. Burdette, 524 So. 2d 1064 (Fla. 2d DCA 1988)). Moreover, “such fees [must] be

reasonably and necessarily incurred in relation to a proper issue in the case.” Leeds

v. City of Homestead, 407 So. 2d 920, 921 (Fla. 3d DCA 1981) (emphasis added)

(citing Hodges v. Div. of Admin., State, Dep’t of Transp., 323 So. 2d 275 (Fla. 2d

DCA 1975)).

lower-valued property, landowners would be less inclined to risk hiring an attorney and

challenging a lowball offer, recognizing that they would be on the hook for fees and costs if they

fought for their just compensation. This would have the deleterious effect of allowing—even

incentivizing—private companies, vested with the power of the state, to strongarm small property

owners into giving up their land for lower-than-fair-market value.

This Court must make specific findings justifying each award of expert

witness fees. State Dep’t of Transp. v. Nassau Partners, Ltd., 878 So. 2d 1286, 1288

(Fla. 1st DCA 2004). Namely, this Court must list “the hours, rate, and total fee

owed to each expert.” Id.

Defendants claim separate amounts for each of their four experts; namely, (a)

$43,435 in fees for Matthew Ray (real estate appraiser)—but Defendants are willing

to discount his firm’s fees by 10% to $39,091.50 as a “fair compromise,” in light of

revisions to Mr. Ray’s opinion and the facts and circumstances of this case, ECF No.

281 at 59; (b) $10,117.87 in fees for Joshua Harris (real estate economist)—but in

light of this Court’s limitation on Dr. Harris’s opinion and the facts and

circumstances of this case, Defendants are willing to discount Dr. Harris’s fees by

10% to $9,106.08, as a “fair compromise,” ECF No. 280 at 62; (c) $9,000 in fees for

Joseph Samnick (arborist)—but Defendants are willing to discount his fees by 20%

to $7,200 as a “fair compromise” in light of this Court’s limitation on his opinion

regarding the individual values of trees and the facts and circumstances of this case,

ECF No. 280 at 65 ; and (d) $17,611.32 in fees for Dr. Thomas Spreen (agricultural

economist)—but in light of this Court’s limitation on the specifics of Dr. Spreen’s

testimony and after several amendments to his expert report, Defendants are willing

to reduce Dr. Spreen’s fee by 20% to $14,089.06 as a “fair compromise,” ECF No.

280 at 68. This Court will address each expert’s fee in turn, along with Plaintiff’s

specific objections thereto and any reductions this Court deems appropriate.

i. Matthew Ray—Real Estate Appraiser

In support of Defendants’ claim for Mr. Ray’s fees, Defendants attach

declarations from Matthew Ray, ECF No. 267, and Andrew Brigham, ECF No. 280,

providing details about the tasks Mr. Ray’s firm performed, the connection those

tasks had to Defendants’ case, the rates Mr. Ray’s firm charged, and the time his

firm spent on each task. Mr. Ray, along with others at his firm, Cantrall Ray Real

Estate (“CRRE”), billed a total of $43,435 in appraisal fees, which included

revisions and amendments to Mr. Ray’s expert report based on this Court’s exclusion

of certain aspects of his opinion. Plaintiff raises several objections to the requested

fees—calling into question both the reasonableness of the time spent on the appraisal

and the hourly rates charged by employees at CRRE.

Mr. Ray’s appraisal was the result of work performed by three individuals.

Matthew Ray performed 118.73 hours of work for $295/hour; Rikke L. Mihos

performed 29.68 hours of work for $190/hour; and Sarah Pinkepank performed 9.55

hours of work for $190/hour. See ECF No. 267-3. Mr. Ray attests that these rates are

within the range of reasonable rates charged by appraisers of similar experience.

ECF No. 267 at 7. CRRE also invoiced $955.97 for out-of-pocket expenses for

mileage to inspect the property, comparable and paired sales, and the market area,

and costs for mailings and attendance at the trial. Id. at 7, 9.

Plaintiff points out several billing errors in CRRE’s earlier invoices—

mistakes that Mr. Ray admits to in his declaration—and accuses Mr. Ray of making

a “patently doubtful claim” that he worked 12 to 15.75 hours on 26 days, which were

included in the corrected invoice. ECF No. 290 at 30. In so doing, Plaintiff urges

this Court to find Mr. Ray’s invoicing to be unreliable and reduce his firm’s claimed

fees by half.

Plaintiff also questions Ms. Mihos’s and Ms. Pinkepank’s claimed rates of

$190/hour, asserting they were both research assistants until January and April 2018.

Id. at 33. Ultimately, Plaintiff asks this Court to reduce the two appraiser’s rates to

a blended pre- and post-licensure rate of $150/hour, and award costs totaling only

$20,454.60—representing a reduction of $18,636.90 from Defendants’ proposed

“compromise” fee of $39,091.50. This reduced amount excludes the out-of-pocket

expenses as non-compensable absent any detail regarding the distance travelled for

mileage. Id. at 33 (citing Dep’t of Transp. v. Skidmore, 720 So. 2d 1125, 1130 (Fla.

4th DCA 1998) (holding it was an abuse of discretion for trial court to award travel

expenses for experts whose records did not indicate whether they had to travel for

trial or discovery purposes from out of state)).

As an initial matter, this Court agrees with Plaintiff regarding CRRE’s

claimed out-of-pocket expenses. Mr. Ray has not provided a detailed breakdown of

these expenses, including mileage travelled, and the balance of which appears to

consist of office expenses. Accordingly, in this Court’s discretion, it will exclude

these expenses, totaling $955.97, from the final award of costs. See Skidmore,

720 So. 2d at 1130 (noting an award of costs is left to the court’s sound discretion,

but office expenses such as, postage, should not be taxed as costs).

Contrary to Plaintiff’s attacks on the reasonableness of the claimed fees,

Defendants make a compelling case for the time expended by Mr. Ray’s firm in

preparing and defending Mr. Ray’s appraisal at trial. This is most clearly reflected

in the jury’s rejection of Plaintiff’s “zero damage” estimate in favor of a

compensation award falling between Mr. Ray’s opinion and the landowners’

evaluation, and over ten times the last written offer before Defendants hired an

attorney. See ECF No. 280 at 55. Further, Mr. Ray has adequately explained his

exercise of billing judgment and correction of billing mistakes that Plaintiff

previously objected to, ECF No. 267 at 7-8; accordingly, this Court finds much of

the time Mr. Ray and associates expended, including 118.73 hours for Ray, 29.68

hours for Mihos, and 9.55 hours for Pinkepank, see ECF No. 267-3, was indeed

necessary to put Defendants on equal footing with Plaintiff in this case. However, as

this Court notes below, a reduction is necessary to account for unnecessary time

spent on matters that were excluded at trial. This Court finds a 20% reduction

reasonably accounts for the portions of Mr. Ray’s appraisal that were not considered

“proper issues” at trial.

As to the reasonableness of the claimed hourly rates, this Court finds Mr.

Ray’s rate of $295/hour to be reasonable based on the materials Defendants have

attached in support of their costs claim and the absence of any objection from

Plaintiff.

Plaintiff objects to the $190/hour rate charged for Ms. Mihos and Ms.

Pinkepank, but attaches no evidence to support the assertion that these individuals

charged lower rates between 2015 and their licensures in 2018 or that another

licensed CRRE appraiser charged $150-165/hour in other cases. On the other hand,

Defendants provide no other evidence to support the claimed rates, aside from Mr.

Ray’s affidavit attesting to their reasonableness. See ECF No. 267 at 7.

This Court’s own review of the CRRE invoice, ECF No. 281-5 at 8-10, yields

a count of 38 time entries for Ms. Mihos and 20 time entries for Ms. Pinkepank, of

which roughly half were logged after both individuals became licensed appraisers.

Specifically, Ms. Mihos logged 18 time entries in 2018, for approximately 10.5

hours of post-licensure work. Of her total time, Ms. Mihos expended approximately

4.5 hours of apparently clerical work before she became licensed—including time

entries for “research and organiz[ing] files,” “organize file and client information,”

and “organize electronic files.” Id. at 9. While this Court finds Ms. Mihos’s present-

day rate is appropriate and reasonable, this Court will exclude the 4.5 hours of

clerical work Ms. Mihos performed while she was still a research assistant, for a

total reasonable time expended of 25.18 hours and a total fee of $4,784.20.

Similarly, Ms. Pinkepank logged 11 of her 20 time entries after she became

licensed in 2018. Nearly three-quarters of her time was incurred while she was a

licensed appraiser, accordingly this Court finds her requested rate of $190 to be

reasonable as well. But like Ms. Mihos, Ms. Pinkepank performed some clerical

work early in the case that should be excluded from her fee award. Specifically, time

entries for tasks like compiling and organizing files, “prepar[ing] mailings for

verification,” and “planning route and organizing info for confirmation/inspections,”

shall be excluded from the final award—a total of 1.1 hours. This leaves 8.45 hours

of time reasonably expended in this case at a rate of $190/hour for a total fee award

for Ms. Pinkepank of $1,605.50.

While Defendants assert a 10% reduction is a fair compromise in recognition

of the time spent on matters that were ultimately excluded, this Court finds a 20%

reduction is reasonable and necessary to reflect the limitations this Court imposed

and work performed on “proper issues” in this case. For these reasons, Defendants’

motion for costs with respect to appraisal fees is GRANTED in part. Combined

with Mr. Ray’s total fee of $35,025.35, comprising 118.73 hours of time at

$295/hour, the total fee award for Mr. Ray’s appraisal, reduced by 20%, is

$33,132.04.

ii. Joshua Harris—Real Estate Economist

Defendants move to recover expert fees totaling $9,106.08 for Dr. Joshua

Harris, taking into consideration a 10% reduction for court-imposed limitations on

the scope of his testimony. ECF No. 283 at 28. In support of their motion, Defendants

attach Dr. Harris’s declaration, ECF No. 268, along with Mr. Brigham’s declaration

attesting to the work that Dr. Harris performed in assisting with the defense of this

proceeding, ECF No. 280 at 59-62. Mr. Brigham describes Dr. Harris as a “real estate

economist,” who studied and testified to the impact that the presence of a natural gas

pipeline would have on the value of real estate based on the behavior of market

participants. Id. at 60. An invoice from Dr. Harris’s firm, the Lakemont Group,

shows that Dr. Harris billed for approximately 25.5 hours of work on this case, plus

$570.70 in travel expenses for trial in Gainesville. ECF No. 281-5 at 11-13.

Defendants also attach the affidavit of Timothy Savage, Ph.D. in economics and

Clinical Assistant Professor of Real Estate at the NYU Schack Institute of Real

Estate, in support of their claim for Dr. Harris’s fees. ECF No. 269. Dr. Savage

opines that based on his knowledge of Dr. Harris’s background and experience, his

claimed rate of $375 is reasonable compared to similarly qualified experts in the

field. Id. Further, Dr. Savage opines that the time Dr. Harris spent on this case was

a reasonable number of hours to complete the assignment. Id.

Plaintiff objects to the request for Dr. Harris’s fees, asserting his expert

opinion was largely excluded at trial, and the balance of which he was permitted to

testify about was essentially duplicative of Mr. Ray’s appraisal testimony. ECF No.

290 at 34. But Plaintiff overstates its case. Though this Court limited Dr. Harris’s

testimony on the impact that a pipeline would have on the value of land, this Court

did so to prevent Dr. Harris from testifying to direct quotes from materials he

reviewed in reaching his opinions and from survey participants that he interviewed

while formulating his report. See ECF No. 133. Nonetheless, this Court found Dr.

Harris to be qualified to conduct the survey that he used in formulating his report

and permitted him to testify to his ultimate opinion in the case. Id. Moreover, this

Court agrees with Defendants that Dr. Harris served as a predicate expert for Mr.

Ray’s appraisal, who added context and understanding regarding the asserted

negative impact that Plaintiff’s pipeline would have on land value based on the

perceptions of market participants. However, based on the court-imposed limitations

on Dr. Harris’s testimony, this Court finds that a 20% reduction in his total fee award

is necessary to reasonably account for the evidence that was excluded at trial. .

Accordingly, this Court finds, based on the materials Defendants have

provided in support of their motion, that Dr. Harris spent a reasonable amount of

time—approximately 25.5 hours—on this case and that his rate of $375/hour is

reasonable given his qualifications and expertise, but that a 20% reduction in the

overall fee is appropriate to reflect the limitation on Dr. Harris’s testimony. And like

this Court noted with respect to Mr. Ray’s fees, Dr. Harris’s travel expenses are

properly excluded absent a breakdown with respect to mileage. See Skidmore, 720

So. 2d at 1130 (holding it was an abuse of discretion for trial court to award travel

expenses for experts whose records did not indicate whether they had to travel for

trial or discovery purposes from out of state)). Accordingly, Defendants’ motion for

costs as to Dr. Harris’s expert fees is GRANTED in part, for a total award of

$7,637.74.23

iii. Joseph Samnik—Arborist

Defendants move to recover expert fees for Joseph Samnik, asserting a total

invoice amount of $9,000 for 60 hours of work, but requesting a compromised fee

of $7,200. ECF No. 283 at 28; see also ECF No. 281-5 at 16-17 (Samnik invoice).

In support of this request, Defendants attach Mr. Samnik’s declaration, see ECF No.

272, along with the affidavit of Ira Padgett, an ISA certified arborist with five years’

experience who is currently employed with the City of Safety Harbor, ECF No. 276.

Mr. Padgett attests that he is familiar with Mr. Samnik’s experience, background,

23 This amount reflects a 20% reduction from $9,547.17 in fees, minus $570.70 in travel

expenses. See ECF No. 281-5 at 11.

and achievements and that Mr. Samnik’s rate of $150 is reasonable. Id. This Court

agrees, based on the materials provided, that Mr. Samnik’s hourly rate is reasonable.

Plaintiff asserts Mr. Samnik’s fee award should be reduced to reflect the fact

that much of his opinion was excluded and his testimony limited at trial based on

this Court’s ruling that he could not testify to the value of individual trees on the

subject property. ECF No. 290 at 35. Plaintiff proposes that this Court cut 27.75

hours related to work on the excluded portion of Mr. Samnik’s opinion and apply an

additional 75% cut to remaining time entries to yield a total reduced fee award of

$3,093. Id. at 35-36.

This Court agrees that some reduction for time spent on individual tree values

is appropriate, as this Court previously deemed that to not be a “proper issue” in the

case. See Leeds, 407 So. 2d at 921. Specifically, in November 2017, this Court ruled

that Defendants could not seek damages for the value of individual trees that were

lost because of the pipeline construction. See ECF No. 76. Defendants and Mr.

Samnik agree that his opinion was limited by the exclusion of this evidence;

however, they urge this Court to find that the total time Mr. Samnik spent studying

the property, preparing his report, attending deposition, and preparing for and

testifying at trial was reasonably and necessarily incurred despite the limitation on

his testimony. See ECF Nos. 272 and 280 at 65. Even so, Defendants agree to a 20%

reduction in Mr. Samnik’s fees—from $9,000 to $7,200—based on the exclusion of

the individual-tree-value portion of his opinion.

This Court’s review of Mr. Samnik’s invoice, ECF No. 281-5 at 16-17, leads

it to conclude that a reduction for time spent appraising the value of individual trees

is appropriate. Mr. Samnik’s expert report, ECF No. 64-5, lists three methods for

appraising tree values—pursuant to Rule Chapter 14-40, the “Trunk Formula

Method,” and the “6” Replacement Tree” method—each of which is referenced in

invoice entries for January 12, 2017, January 13, 2017, and January 16, 2017.

Compare ECF No. 64-5 at 2 with ECF No. 281-5 at 16-17. The combined time spent

on these individual tree value appraisals is 24.5 hours. Accordingly, Mr. Samnik’s

hours shall be reduced by 24.5 hours, yielding a balance of 35.5 hours. This Court

finds this remaining time that Mr. Samnik spent on the case was reasonable and

necessary to study the property, prepare and refine his report, further refine the issues

at deposition, and testify at trial. This is true notwithstanding the excluded portion

of Mr. Samnik’s opinion. Accordingly, Defendants’ claim for expert fees is

GRANTED in part with respect to Mr. Samnik’s services as an expert arborist in

this case. This Court finds $5,325, representing 35.5 hours multiplied by $150/hour,

to have been reasonably and necessarily incurred in the defense of this proceeding.

iv. Thomas Spreen—Agricultural Economist

Defendants also move to recover expert fees for work that Dr. Thomas Spreen

performed in this case, including a total invoiced amount of $17,611.32; however,

Defendants assert that a 20% reduction is appropriate for the limitations placed on

Dr. Spreen’s testimony and seek a reduced fee award of $14,089.06. ECF No. 283

at 28, 34. Defendants attach the affidavit of Michael Martin, an attorney of 40 years,

with “substantial experience in valuation of Agricultural lands.” ECF No. 271. Mr.

Martin attests to his familiarity with Dr. Spreen’s background and experience, and

having reviewed his invoices in this case, Mr. Martin opines that his claimed rates

are reasonable and commensurate with similar rates charged in Mr. Martin’s own

cases. Id. Defendants also attach Mr. Brigham’s declaration, which explains that he

hired Dr. Spreen to provide an opinion on whether Plaintiff’s pipeline easement

would impact the use of the subject property for crop production, given that the

property is a working farm. ECF No. 280 at 66.

Plaintiff objects to a majority of Dr. Spreen’s claimed fees based on the

numerous revisions he made to his report and this Court’s limitation on his

testimony, as well as the frequent travel Dr. Spreen charged for splitting his

residency between Indiana and Florida, notwithstanding his place of business at the

University of Florida in Gainesville. ECF No. 290 at 67-68. This Court agrees that

it is inappropriate to hire a “local” expert and then charge Plaintiff for that expert’s

travel to and from his out-of-state residence, accordingly, this Court will exclude Dr.

Spreen’s travel-related expenses.

Dr. Spreen provided seven invoices. See ECF No. 281-5 at 2. Based on this

Court’s review of the invoices, Dr. Spreen billed $1,162.5 for travel time to and from

his home in Indiana to his home in Gainesville, along with $677.10 for his flight,

and $149.54 in mileage and cab fares in April 2017. ECF No. 281-5 at 24. He also

billed another $1,125 for travel time to and from Indiana and Gainesville, $109.54

for mileage and cab fares, and $670 for his flight in January 2018. Id. at 31. Dr.

Spreen billed a third trip in March of 2018, for $1,275 for travel time, $195.98 for

his flight from Indiana to Tampa, and $321.04 for rental car expenses. Id. at 38. Dr.

Spreen’s fourth trip in November 2018 included $1,125 for travel time, $689.50 for

his flight, and $165.62 for rental car expenses and cab fare. Id. at 45. This all amounts

to $7,665.82 in unnecessary travel expenses.

As for time incurred for work on “proper issues” in this case, this Court agrees

that a reduction is necessary to exclude time spent on matters that this Court

determined were inadmissible. This Court recognizes that it did not clarify its ruling

about the admissibility of certain aspects of Dr. Spreen’s opinion until September of

2018, after he had already put 50.25 hours of work in on his research and report,

including attendance at depositions which helped refine the issues discussed in his

report. Accordingly, this Court finds a 40% reduction is reasonable to reflect a

reduction of unnecessary work prior to September 2018. This leaves Dr. Spreen with

30.15 hours of time reasonably and necessarily incurred on his expert report prior to

this Court’s order on certain issues pertaining to compensable damages and

admissibility of evidence, ECF Nos. 126 & 128. This time, along with four hours of

research and preparation time in November 2018 at Dr. Spreen’s $150 rate, and 2.75

hours of testimony time at Dr. Spreen’s $225 rate, yields a reasonable total fee

award of $5,741.25.24

B. Fleming and England

Defendants seek $7,200 for the services performed by project manager and

drone pilot, Ken Fleming, ECF No. 23 at 28, and a compromised fee amount of

$2,400 for GIS mapping consultant, Bradley England, and his company, Terra Alta

Group, id. Defendants attach declarations and attachments by Andrew Brigham,

ECF No. 280, Mr. Fleming, ECF No. 275, and Mr. England, ECF No. 273, in support

of these claimed costs. Defendants also provide the affidavit of Shawn Barnett, a

certified GIS executive with 30 years’ experience, who attests that Mr. England’s

rate of $100 for work performed is reasonable given his certification and experience.

ECF No. 274. This Court will address each claim for costs in turn, starting with Mr.

England.

24 This includes 34.15 hours billed at $150/hour, plus 2.75 hours billed at $225/hour. This

Court excludes the $8 billed for courthouse parking as another “cost of doing business.”

ii. Bradley England/Terra Alta Group

Defendants engaged Bradley England and his company, Terra Alta Group, for

GIS services as a predicate for Mr. Ray’s appraisal. ECF No. 280 at 69. Reasonable

costs include reasonable expert fees charged by Defendants’ appraiser as well as fees

incurred by predicate experts, the opinions of which the appraiser relies upon in

making his or her appraisal. See Garber, 687 So. 2d 2. Here, Mr. England is a GIS

consultant with 21 years of experience in mapping, who prepared scores of exhibits

from aerial photographs, which were put to useful purposes in Mr. Ray’s appraisal,

at mediation, and during the trial in this case. Id. at 69-70. Mr. England invoiced

$2,650 in fees for the services he and his firm performed for Defendants. ECF No.

283 at 28. Mr. England’s hourly rate is $100, which this Court finds reasonable for

a GIS consultant of his background and experience. See ECF No. 274 (opining that

Mr. England’s $100 rate is reasonable).

Mr. England performed a total of 26.5 hours of work on creating maps for use

in Mr. Ray’s appraisal and as exhibits at trial in this case; however, Defendants

acknowledge that a two-and-a-half-hour reduction is appropriate to account for work

Mr. England performed on mapping information for Defendants’ expert witnesses

which this Court later deemed inadmissible at trial. ECF No. 280 at 71. Accordingly,

Defendants have agreed to reduce their costs claim by $250 to account for this time,

resulting in a compromised cost claim of $2,400 in fees for work that Mr. England

and his company performed. See ECF No. 280 at 71. Plaintiff poses no objection to

this reduced amount. ECF No. 290 at 38. For these reasons, this Court finds Mr.

England’s services were necessary to place Defendants on equal footing with

Plaintiff and served as a useful predicate for Defendants’ expert opinions.

Defendants’ motion for costs is GRANTED as to the claim for $2,400 for work

performed by Bradley England and the Terra Alta Group.

ii. Ken Fleming

Defendants also move to recover costs for services that Ken Fleming

performed to assist Mr. Ray with his appraisal and his rebuttal of Plaintiff’s expert’s

appraisal. ECF No. 275 at 1. Mr. Brigham’s declaration states that Ken Fleming is a

project manager with Mr. Brigham’s law firm and a certified drone pilot. ECF No.

280 at 72. Defendants are seeking costs for 48 hours of Mr. Fleming’s time taking

ground and aerial photographs, both of the subject property, and of sales considered

by Plaintiff’s and Defendants’ appraisers Id. at 73-74. These photographs were

created for use as exhibits during the trial in this case, of which Defendants assert

over 100 were admitted into evidence. Id. at 74-75. Defendants agree to reduce Mr.

Fleming’s usual rate of $195/hour to $150/hour and seek $7,200 for the work he

performed in this case.

Plaintiff objects to any award for Mr. Fleming’s services for several reasons.

The primary contention is that Mr. Fleming’s work is duplicative of work performed

by Bradley England and the Terra Alta Group. ECF No. 290 at 39. Additionally,

Plaintiff takes issue with the fact that Mr. Fleming is an employee of defense

counsel’s law firm and the work he performed as part of that employee relationship

should be categorized as either pre-judgment, paralegal work encompassed by the

“benefits achieved” fee award or non-compensable overhead expenses that

Defendants cannot claim as recoverable costs. Id. at 40-41. Plaintiff also disputes

the number of Mr. Fleming’s exhibits that were admitted at trial, alleges Mr. Fleming

engaged in “questionable billing” practices, and points out that he did not become

an FAA-certified drone pilot until April 2018. Id.

Defendants go to great lengths to explain why Mr. Fleming’s services were

distinct from Mr. England’s, and yet, still necessary to place Defendants on equal

footing with Plaintiff at trial. ECF No. 280 at 72-79; ECF No. 275. Mr. Brigham

explains that Mr. Fleming’s aerial and ground photographs differed from the

publicly-sourced information Mr. England used to create maps for Mr. Ray’s

appraisal, as Mr. Fleming’s photographs were used to show the jury the “aesthetic

qualities” of the property at issue, both before and after the taking. ECF No. 280 at

77-78. On the other hand, Mr. England’s mapping provided “flat aerial” views,

useful in demonstrating boundaries, the location of easements, and for measuring

distances and areas. Id. Essentially, Mr. England’s maps provided a view of the

“forest,” while Mr. Fleming’s photographs captured the beauty of the individual

“trees.”

But while Mr. England served essentially as a predicate expert in GIS

mapping to support the preparation of Mr. Ray’s appraisal and testimony at trial, Mr.

Fleming is held out as an employee of the law firm hired to defend this case. This

Court agrees with Plaintiff to the extent that Mr. Fleming’s services, though adding

value to the Defendants’ case and certainly helpful in demonstrating the value of the

subject property, is properly accounted for already under the “benefits achieved” fee

award. The fact that Mr. Fleming did not testify, on its own, “does not preclude the

award of a reasonable fee.” Sarasota Cnty. v. Burdette, 524 So. 2d 1064, 1066 (Fla.

2d DCA 1988). However, he “was not hired as an expert witness, but to assist the

landowner[s’] attorney in the litigation,” nor was his function “to render an opinion

on just valuation.” State, Dep’t of Transp. v. Woods, 633 So. 2d 94, 95 (Fla. 4th DCA

1994). Defendants’ costs claim appears to be shifting the overhead expenses of Mr.

Brigham’s firm by charging the costs of a non-attorney or paralegal employee’s trial

preparation services to Plaintiff under the guise of litigation costs. Taxing general

overhead expenses as costs in an eminent domain case is improper. Chandrinos, 816

So. 2d at 1246; see also Skidmore, 720 So. 2d at 1130 (noting computer research

costs are “overhead” and not compensable as costs). Accordingly, Defendants’ claim

of $7,200 for Mr. Fleming is DENIED.

C. Printing Costs

Defendants seek $10,163.10 for copying and exhibit printing costs incurred

from Copy Right, “a litigation support and printing company.” ECF No. 283 at 28,

34-35. Defendants assert these costs are “[o]verwhelmingly . . . traceable to board-

mounted exhibits entered into evidence or used for demonstrative purposes at trial.”

Id. at 35. Such costs are taxable so long as they are reasonable. See Orlando Reg’l

Med. Ctr. v. Chmielewski, 573 So. 2d 876, 883 (Fla. 5th DCA 1990), abrogated on

other grounds by Boulis v. Fla. Dep’t of Transp., 733 So. 2d 959 (Fla. 1999).

Plaintiff agrees to prorated copying costs included under two of four invoices,

totaling $296.80; however, Plaintiff asserts costs from a third invoice should be

completely excluded as they relate to copies used only in mediation, and costs from

the fourth invoice should be reduced to account for only those copies of exhibits that

were actually admitted at trial, instead of including costs for pricey demonstrative

aids. See ECF No. 290 at 42-44; see also ECF No. 281-5 at 3 (listing invoice numbers

and corresponding costs). Ultimately, Plaintiff asks this Court to reduce the

$10,163.10 in copying costs to a total award of $462.41. Id. at 44. However, Plaintiff

acknowledges that this Court may find some expenses for demonstrable aids to be

taxable and proposes that a reasonable amount for such costs is $2,070. Id. at n.25.

This Court agrees with Plaintiff that Defendants’ expenses for printing

documents used at mediation should not be taxed as costs—instead, these charges

are properly subsumed as overhead expenses. This Court also agrees, to an extent,

that over $9,000 in fees for printing dozens of demonstrative aids for trial appears to

be excessive. It is impossible to determine with precision the usefulness of such

exhibits and aids at trial, or whether, after a number of these aids were shown to the

jury, they began to provide diminishing returns with respect to persuading or

educating the jury regarding the value of the subject property. Instead, this Court

agrees with Plaintiff that a reduction in the amount claimed for printing

demonstrative aids for necessary use at trial is appropriate to arrive at a reasonable

cost. Accordingly, this Court adopts Plaintiff’s proposed reduction from $9,025.28

to $2,070, representing costs for one-third of Defendants’ demonstrative aids

invoiced at $90 for 24x36” foam boards.

Accordingly, in sum, Defendants’ cost claim for printing costs is GRANTED

in part for a total award of $2,366.81.25

D. Miscellaneous Expenses

Finally, Defendants’ move for $1,861.17 in costs for “miscellaneous

expenses.” ECF No. 283 at 28. Specifically, Defendants seek costs for hotel rooms

for four individuals during the trial in this case. See ECF No. 281-5 at 4. This Court

is persuaded by the First District Court of Appeal’s interpretation that attorneys’

25 This represents a total of $296.80 for invoice #s 40828 and 43970 and costs for invoice

# 44298 reduced to $2,070. See ECF No. 281-5 at 3.

travel expenses are not the sort of costs that should be taxed to the condemning

authority in eminent domain actions, and instead “represent litigation expenses

voluntarily incurred by [Defendants] who elected to employ counsel to represent

them who lived a considerable distance from the city in which the case was being

litigated.” Plante v. Canal Auth., 218 So. 2d 243, 248 (Fla. 1st DCA 1969).

Accordingly, Defendants’ motion for costs is DENIED as to travel and hotel

expenses amounting to $1,861.17.

VI. Conclusion

For the reasons set out above,

IT IS ORDERED:

1. Defendants’ motion for attorney’s fees and costs, ECF No. 283, is

GRANTED in part and DENIED in part.

2. Defendants are entitled to “benefits achieved” attorney’s fees, under section

73.092(1), Florida Statutes, totaling $220,391 as a component of Defendants’ full

compensation.

3. Defendants’ motion for pre-trial supplemental proceeding fees pursuant to

section 73.092(2), Florida Statutes, is DENIED.

4. Defendants are entitled to post-trial supplemental proceeding fees, pursuant

to section 73.092(2), Florida Statutes, totaling $66,192.50.

5. Defendants are entitled to appellate fees, pursuant to section 73.131, Florida

Statutes, totaling $99,982.50 for 121.1 hours of work that attorneys Brigham and

Copeland performed, and 78.95 hours that attorneys Hearne, Davis, T. Belz, and M.

Belz performed.

6. Defendants are entitled to taxable costs, pursuant to section 73.091, Florida

Statutes, as a component of their full compensation, including the following:

a. $5,619.50 for court reporting services;

b. $3,827.36for 25.18 hours, payable at $190/hour, reduced by 20%, for

Ms. Mihos;

c. $1,284.40for 8.45 hours, payable at $190/hour, reduced by 20%, for

Ms. Pinkepank;

d. $28,020.28, for 118.73 hours, payable at $295/hour, reduced by 20%,

for Mr. Ray;

e. $7,637.74, for 25.5 hours, payable at $375/hour, followed by a 20%

reduction in the total amount of $9,547.17 for Dr. Harris;

f. $5,325, representing 35.5 hours multiplied by $150/hour, for Mr.

Samnik;

g. $5,741.25, representing 34.15 hours billed at $150/hour, plus 2.75

hours billed at $225/hour, for Dr. Spreen;

h. $2,366.81 for printing costs; and

i. $2,400, representing 24 hours billed at $100/hour, for Bradley

England and the Terra Alta Group.

7. Defendants’ motion for costs, ECF No. 283, as it pertains to Ken Fleming’s

fees and miscellaneous expenses is DENIED.

8. The Clerk shall enter judgment for fees and costs stating, “Defendants are

entitled to judgment against Plaintiff in the amount of $386,566 in attorneys’ fees,

and $62,222.34 in costs, for a total judgment amount of $448,788.34, for which sum

let execution issue.”26

9. This Court recognizes that a motion to tax interest, ECF No. 289, remains

pending. This Court will address that motion by separate order.

SO ORDERED on May 11, 2021.

s/Mark E. Walker

Chief United States District Judge

26 The Clerk previously entered an amended judgment, ECF No. 198, reflecting the jury’s

verdict that Plaintiff must pay Defendants $861,264. Plaintiff has satisfied this judgment by paying

the required amount into the court registry. See ECF Nos. 221, 222, & 223.