Sabal Trail Transmission, LLC v. 3.921 Acres of Land in Lake County Florida et al

Filing 204

ORDER denying 202 Defendant's renewed motion to compel discovery related to its request for attorney's fees and costs. Signed by Magistrate Judge Philip R. Lammens on 2/11/2021. (SA)

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UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION
SABAL TRAIL TRANSMISSION,
LLC,
Plaintiff,
v.

Case No: 5:16-cv-178-Oc-30PRL

3.921 ACRES OF LAND IN LAKE
COUNTY FLORIDA, SUNDERMAN
GROVES, INC and UNKNOWN
OWNERS,
Defendants.
ORDER
In this eminent domain proceeding, Defendant, Sunderman Groves, Inc. has filed a
renewed motion to compel discovery related to its request for attorney’s fees and costs. (Doc.
202). For the reasons discussed below, the motion is denied.
I.

BACKGROUND

This case was tried before a jury, which found that Defendant was entitled to $309,500
in compensation for the condemnation of its property. (Doc. 133). The District Court
determined that section 73.091, Florida Statutes, governed Defendant’s right to attorney’s
fees and costs. (Id.). On April 26, 2018, Defendant filed a motion seeking attorney’s fees.
(Doc. 141). On June 6, 2018, Defendant filed its initial motion to compel seeking discovery
related to its request for attorney’s fees. (Doc. 155). This court denied the motion without
prejudice to Defendant filing a renewed motion more narrowly tailored to the issue. (Doc.
161). The court then granted Sabal Trail’s motion to continue the hearing and associated

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deadlines related to the request for attorney’s fees pending the result of Sabal Trail’s appeal of
the final judgment. (Doc. 181).
The Eleventh Circuit has since issued its opinion (Doc. 183) and granted Defendant’s
motion to transfer consideration of appellate attorney’s fees to this court. (Doc. 188). Now,
Defendant has filed a renewed motion to compel discovery related to its request for attorney’s
fees and costs. (Doc. 202).
II.

LEGAL STANDARD

Motions to compel discovery under Rule 37(a) of the Federal Rules of Civil Procedure
are committed to the sound discretion of the trial court. See Commercial Union Ins. Co. v.
Westrope, 730 F.2d 729, 731 (11th Cir. 1984). “The overall purpose of discovery under the
Federal Rules is to require the disclosure of all relevant information so that the ultimate
resolution of disputed issues in any civil action may be based on a full and accurate
understanding of the true facts, and therefore embody a fair and just result.” Oliver v. City of
Orlando, No. 6:06-cv-1671, 2007 WL 3232227, at *2 (M.D. Fla. Oct. 31, 2007).
The moving party “bears the initial burden of proving that the information sought is
relevant.” Douglas v. Kohl’s Dep’t Stores, Inc., No. 6:15-cv-1185, 2016 WL 1637277, at *2 (M.D.
Fla. Apr. 25, 2016) (quoting Moore v. Lender Processing Servs. Inc., No. 3:12-cv-205, 2013 WL
2447948, at *2 (M.D. Fla. June 5, 2013)). Relevancy is based on the “tendency to make a fact
more or less probable than it would be without the evidence, and the fact is of consequence
in determining the action.” Garcia v. Padilla, No. 2:15-cv-735, 2016 WL 881143, at *2 (M.D.
Fla. March 8, 2016) (quoting Fed. R. Evid. 401).
Proportionality requires counsel and the court to consider whether relevant
information is discoverable in view of the needs of the case. In making this determination, the

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court is guided by the non-exclusive list of factors in Rule 26(b)(1). Graham & Co., LLC v.
Liberty Mut. Fire Ins. Co., No. 2:14-cv-2148, 2016 WL 1319697, at *3 (N.D. Ala. April 5, 2016).
“Any application of the proportionality factors must start with the actual claims and defenses
in the case, and a consideration of how and to what degree the requested discovery bears on
those claims and defenses.” Id. (quoting Witt v. GC Servs. Ltd. P’ship, 307 F.R.D. 554, 569 (D.
Colo. 2014)).
In order to frame the discovery on this issue, it is essential to determine what the
purpose of the discovery is. As the commentary to Rule 26 explains, “A party claiming that a
request is important to resolve the issues should be able to explain the ways in which the
underlying information bears on the issues as that party understands them.” Fed. R. Civ. P.
26. Then, of course, it is the “Court’s responsibility, using all the information provided by the
parties, . . . to consider these and all the other factors in reaching a case-specific determination
of the appropriate scope of discovery.” Id.
III.

DISCUSSION

Rule 54 provides the procedure for seeking attorney’s fees post-judgment. The
comments to the Rule allow that: “On rare occasion, the court may determine that discovery
under Rules 26–37 would be useful to the parties.” But it is well established that a “request
for attorney’s fees should not result in a second major litigation.” Hensley v. Eckerhart, 461
U.S. 424, 437 (1983).
A. Florida Substantive Law
The Florida Constitution entitles property owners to “full compensation” for any land
taken for a public purpose. Fla. Const. art. 10, § 6. Under Florida law, full compensation

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includes a reasonable attorney’s fee in order to “render the property owner as whole as
possible.” Joseph B. Doerr Tr. v. Cent. Fla. Expressway Auth., 177 So. 3d 1209, 1215 (Fla. 2015).
By statute, attorney’s fees in condemnation cases are calculated based on the “benefits
achieved for the client.” Fla. Stat., § 73.092(1). To determine the benefits achieved, the statute
instructs the court to determine the difference “between the final judgment or settlement and
the last written offer made by the condemning authority before the defendant hires an
attorney.” Fla. Stat., § 73.092(1)(a). The statue then provides a schedule for determining the
amount of the attorney fee as a percentage of the amount of the benefit. Id. § 73.092(1)(c).
The Florida Supreme Court has held, however, that this procedure has the potential
to undercompensate a property owner if the condemning authority leverages its superior
resources to engage in “excessive litigation,” unreasonably driving up the landowner’s cost of
litigating the case. Doerr, 177 So. 3d at 1215–16. Because of the constitutional requirement to
provide property owners with full compensation, the Florida Supreme Court has construed §
73.092 to allow property owners to recover their attorney’s fees for those hours spent
defending against excessive litigation. Id. at 1219. The Court held “when a condemning
authority engages in tactics that cause excessive litigation, the trial court shall utilize section
73.092(2) to calculate a reasonable attorney’s fee, but only for those hours incurred in defending
against the excessive litigation or that portion that is considered to be in response to or caused by
the excessive tactics.” Id. at 1217.
Section 73.09(2) provides that in awarding attorney’s fees, the court should consider:
(a) The novelty, difficulty, and importance of the questions
involved.
(b) The skill employed by the attorney in conducting the cause.
(c) The amount of money involved.
(d) The responsibility incurred and fulfilled by the attorney.

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(e) The attorney’s time and labor reasonably required
adequately to represent the client in relation to the benefits
resulting to the client.
(f) The fee, or rate of fee, customarily charged for legal services
of a comparable or similar nature.
(g) Any attorney’s fee award made under subsection (1).
Fla. Stat. § 73.09(2).
Further, the statute provides that “in determining the amount of attorney’s fees to be
paid by the petitioner under subsection (2), the court shall be guided by the fees the defendant
would ordinarily be expected to pay for these services if the petitioner were not responsible
for the payment of those fees.” Fla. Stat. § 73.092(3).
Therefore, to be awarded fees beyond those provided for under the ‘benefits achieved
formula,’ Defendant must show that Sabal Trail engaged in tactics that caused excessive
litigation. Once that showing is made, Defendant will need to demonstrate which of its
attorney’s fees and costs were caused by, or incurred in response to, that excessive litigation.
B. Defendant’s Motion to Compel
Defendant primarily claims that Sabal Trail engaged in excessive tactics relating to its
challenge of the level of comparison between sales in direct comparison and paired sales
comparison considered by Defendant’s appraiser, both in its Daubert motion and during trial,
in addition to having numerous attorneys present during the hearings and trial.
To show that Sabal Trail engaged in tactics that caused excessive litigation, Defendant
seeks the production of Sabal Trail’s counsel’s time records, billings, invoices, or receipts of
payment relating to: 1) Sabal Trail’s Daubert motion (Doc. 51); 2) Sabal Trail’s response to
Defendant’s motion for reconsideration (Doc. 86); and 3) Sabal Trail’s preparation for or
attendance at the pretrial conference and the jury trial. (Doc. 202-2). Additionally, Defendant
requests documentation of the hourly rate charged Sabal Trail’s counsel. (Doc. 202-2).
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Defendant contends that this information will also be helpful to the court in determining the
amount in attorney’s fees that Defendant is entitled.
First, the hourly rate that Sabal Trail paid its attorneys is not relevant to whether Sabal
Trail engaged in tactics that caused excessive litigation. Although Defendant claims that the
rate will assist the court in determining the rate Defendant’s attorneys are entitled, this is
simply not the case. Even if Sabal Trail retained private attorneys that specialize in eminent
domain, that does not mean that Defendant’s counsel is entitled to the same hourly rate.
Accordingly, Defendant’s request for Sabal Trail’s counsel’s hourly rate is denied.
Next, the number of hours that Sabal Trail’s counsel spent preparing its Daubert
motion (Doc. 51), its response to Defendant’s motion for reconsideration (Doc. 86), and for
the pretrial conference and the jury trial are not relevant. The primary issue is whether Sabal
Trail engaged in tactics that caused “excessive litigation.” Doerr, 177 So. 3d at 1217. As Sabal
Trail points out:
Regardless of whether Sabal Trail spent 1 hour or 50 hours
preparing its Daubert motion or preparing for and attending a
pretrial conference or trial, such facts would not help determine
the only two issues in an “excessive litigation” claim: whether
the condemnor took “excessive actions” and the time the
landowner’s counsel incurred as a result.
(Doc. 203, at 19). The court agrees. The number of hours spent by Sabal Trail’s counsel on
its Daubert motion and the response to Defendant’s motion for reconsideration will not assist
the court in determining whether Sabal Trail caused excessive litigation.
Importantly, the court ultimately granted Sabal Trail’s Daubert motion on multiple
grounds, including the “level of comparison” argument that Defendant claims resulted in
excessive litigation. (Doc. 71). Defendant then filed a motion to reconsider and argued that
the level of comparison was a “question of weight for the trier-of-fact” and not a “true Daubert
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challenge.” (Doc. 76). The court granted Defendant’s request for an oral argument and then
entered an Order stating: “After reconsideration, the Court’s Order (Doc. 71) striking
Sunderman Groves’s experts Ray and Harris stands.” (Doc. 89).
Even so, Defendant continues to claim that Sabal Trail’s challenge was not a “true
Daubert challenge” and Defendant’s counsel was forced to expend time and resources to
respond to the allegations. (Doc. 202). Regardless, the number of hours Sabal Trail’s counsel
spent preparing and drafting the first meritorious motion and second meritorious response are
not probative to whether it caused excessive litigation with these filings.
Additionally, Defendant contends that because of Sabal Trail’s Daubert motion, its
counsel was “forced” to prepare trial exhibits to show the level of comparison between sales
used in direct comparison or in a paired-sales analysis, demonstrate the qualitative
considerations by its new appraiser, cross examine Sabal Trail’s appraiser, and show
deficiencies in Sabal Trail’s appraisal. (Doc. 202, p. 7-8). Even if this were the case, Sabal
Trail’s time spent preparing for the pretrial conference and trial will not inform the court of
whether there was excessive litigation.
Notably, in Doerr, the court did not have to look at the condemnor’s counsel’s time
records, tasks performed, or hourly rate when it found two instances where the condemnor
caused excessive litigation. Doerr, 177 So. 3d at 1213. The first instance involved the use of
an appraiser who made 16 assumptions in order to determine the value of the property. Id. To
overcome these faulty assumptions, the landowner had to retain additional expert witnesses
and request further services of previously retained experts. Id. Ultimately, the court
determined the condemnor’s appraiser should not be allowed to testify before the jury. Id. The

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second instance involved the condemnor’s counsel spending twice as much time deposing the
landowners’ experts as the landowners’ counsel spent deposing the condemnor’s experts. Id.
Moreover, although Defendant also claims that the amount of time that Sabal Trail
spent on the purportedly excessive litigation will determine the fees that Defendant is entitled,
the Eleventh Circuit has “generally expressed doubt about ‘whether the number of hours spent
on a case by [opposing] counsel is relevant to a determination of the reasonable fees.’” Mock
v. Bell Helicopter Textron, Inc., 456 F. App'x 799, 803 (11th Cir. 2012) (quoting Henson v. Col.
Bank & Trust Co., 770 F. 2d 1566, 1574 (11th Cir. 1985)). Indeed, this court can make a
determination of hours reasonably expended without knowing how many hours Sabal Trail
has spent on the issues. Defendant’s billing records would determine how much time
Defendant spent in responding to “excessive litigation,” not Sabal Trail’s billing records.
IV.

CONCLUSION

Accordingly, Defendant’s renewed motion to compel discovery related to its request
for attorney’s fees and costs (Doc. 202) is denied.
DONE and ORDERED in Ocala, Florida on February 11, 2021.

Copies furnished to:
Counsel of Record
Unrepresented Parties

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