Florida/Georgia Personal Injury & Workers Compensation

...These cases stand for the proposition that the good faith estimate is not binding on the condemning authority's position at trial. This holding does not persuade me on the issue at hand because offers are seldom admissible or binding on a party's position at trial. See, e.g., § 45.061 (offers of settlement); § 73.032 (offers of judgment in eminent domain actions); § 768.79 (offer of judgment)....

...Two months later, the county made a written offer to A & G to acquire the property for $836,000. The offer was refused and the condemnation proceedings continued. An order of taking was entered and an amount equal to the good-faith estimate was deposited in the registry of the court. Thereafter, pursuant to section 73.032, Florida Statutes (1993), the county served A & G with an offer of judgment for $836,000, which was accepted....

...THREADGILL, A.C.J., and FULMER, J., concur. NOTES [1] This award was based on the factors in section 73.092(2). It is coincidental that the attorneys' fees equal the jury's verdict on business damages. [2] In addition to amending section 73.092, chapter 94-162 also amended section 73.032 in order to allow a defendant in an eminent domain proceeding to make an offer of judgment. If a defendant is successful in obtaining a judgment in excess of its offer, the Department must pay fees pursuant to subsections (2) and (3), even if the Department has made a written offer under subsection (1). See § 73.032(6), Fla....

...Because Smithbilt made no offer of judgment, this provision has no direct application in this case. [3] The written offer required by section 73.092(1) includes written offers that do not comply with all of the requirements to create an offer of judgment under section 73.032....

...ocedural or substantive. If procedural, the timing is controlled by the Florida Supreme Court’s adopted rule, Florida Rule of Civil Procedure 1.442, which requires that an offer be served no later than forty-five days before trial. If substantive, section 73.032, Florida Statutes (1997), controls and requires that an offer be served no later than twenty days before trial....

...This rule ... supersedes those sections of the Florida Statutes and the prior decisions of the court, where reconciliation is impossible .... Fla. R. Civ. P. 1.442 committee note (emphasis added). Because the differing time requirements between rule 1.442 and section 73.032 are impossible to reconcile, the rule must control....

presented an offer of judgment pursuant to section 73.032, Florida Statutes, in the amount of $126,400

...The department filed a petition to condemn property in June 1989. In December 1992, it made an offer of judgment of $181,-000.00 which Daystar rejected. The department’s offer stated that it was being made “pursuant to Florida Statutes Sections 73.032, 73.092 and the Rules of the Florida Supreme Court.” Daystar recovered a judgment, including interest, of $179,772.83....

...plicable procedure, because Timmons , incorporating section 768.79, supplied the applicable procedural rules controlling this offer of judgment. We also agree with the department’s assertion that it need not be penalized for including reference to section 73.032 in its offer, “in an abundance of caution,” even though that statute was not effective as to previously filed actions. Section 73.032 supplies procedural rules for offers made in an eminent domain proceeding that were previously found in section 73.092 and the rules of civil procedure....

...1st DCA 1993), but find it distinguishable, as that appeal involved an action for personal injuries to which substantive aspects of section 768.79, there in question, were applicable. We also reject Daystar’s argument that by the department’s reference, in the offer of judgment to the later-adopted section 73.032, it must be inferred that the offer was not intended to refer to the 1989 version of section 73.092, which was in effect at the time of filing the petition....

...uity, as Timmons directs application of the procedure in section 768.79. By referring to section 73.092 in its offer of judgment, the department placed Daystar on notice of the substantive section on which it was relying. The additional reference to section 73.032 was mere surplus-age, as that statute by its terms could not be applied to this previously filed case....

...The Department of Transportation appeals from the award of litigation costs and an expert appraiser’s fee to Enterprising Professional Investment Company (EPIC) in an eminent domain proceeding. We reverse because, in determining EPIC’s entitlement to costs, the trial court failed to properly apply section 73.032(5), Florida Statutes (1999)....

...ing by the trial judge, that the final judgment award was less than the amount of an offer of judgment made by the Department. The Department argued that because the final judgment award was less than the offer of judgment, EPIC was precluded, under section 73.032(5), Florida Statutes (1999), from recovering any fees or costs incurred after rejection of the offer of judgment....

...behalf of [the Department’s] counsel. And therefore, the motion ... is denied. In a written order denying the renewed motion for sanctions, the trial court stated that “sanctions are not imposed in accordance with the provisions of Rule 1.442 or section 73.032, Florida Statutes.” The court then entered its order awarding EPIC both litigation costs and an expert appraiser’s fee. On appeal, the Department asserts that the trial court erred in refusing to consider the offer of judgment because section 73.032(5) divested the court of any discretion to award costs incurred after the rejection of the offer of judgment. EPIC responds that application of section 73.032(5) constitutes a sanction that must be invoked by the timely filing of a motion pursuant to rule 1.442(g), which the Department failed to do. Thus, the question raised by this appeal is whether section 73.032(5) constitutes a sanction, the imposition of which is controlled by the procedural requirements of rule 1.442(g). We hold that section 73.032(5) is not a sanction as that term is used in rule 1.442....

...Furthermore, its application need not be invoked by the filing of any motion. Therefore, the trial court erred as a matter of law in granting EPIC’s motion for expert fees and costs without a determina *22 tion as to whether any of those costs were prohibited by section 73.032(5)....

...The Department of Transportation appeals from the award of litigation costs and an expert appraiser's fee to Enterprising Professional Investment Company (EPIC) in an eminent domain proceeding. We reverse because, in determining EPIC's entitlement to costs, the trial court failed to properly apply section 73.032(5), Florida Statutes (1999)....

...ing by the trial judge, that the final judgment award was less than the amount of an offer of judgment made by the Department. The Department argued that because the final judgment award was less than the offer of judgment, EPIC was precluded, under section 73.032(5), Florida Statutes (1999), from recovering any fees or costs incurred after rejection of the offer of judgment....

...on behalf of [the Department's] counsel. And therefore, the motion ... is denied. In a written order denying the renewed motion for sanctions, the trial court stated that "sanctions are not imposed in accordance with the provisions of Rule 1.442 or section 73.032, Florida Statutes." The court then entered its order awarding EPIC both litigation costs and an expert appraiser's fee. On appeal, the Department asserts that the trial court erred in refusing to consider the offer of judgment because section 73.032(5) divested the court of any discretion to award costs incurred after the rejection of the offer of judgment. EPIC responds that application of section 73.032(5) constitutes a sanction that must be invoked by the timely filing of a motion pursuant to rule 1.442(g), which the Department failed to do. Thus, the question raised by this appeal is whether section 73.032(5) constitutes a sanction, the imposition of which is controlled by the procedural requirements of rule 1.442(g). We hold that section 73.032(5) is not a sanction as that term is used in rule 1.442....

...Furthermore, its application need not be invoked by the filing of any motion. Therefore, the trial court erred as a matter of law in granting EPIC's motion for expert fees and costs without a determination *22 as to whether any of those costs were prohibited by section 73.032(5)....