FIRST DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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No. 1D2023-0477

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DESTIN FISHING FLEET, INC.,

Appellant,

v.

CITY OF DESTIN, a Florida 

Municipal Corporation,

Appellee.

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On appeal from the Circuit Court for Okaloosa County.

Jan Shackelford, Judge.

June 12, 2024

PER CURIAM.

Appellant challenges the amended final judgment that denied 

its claims brought under the Bert J. Harris, Jr., Private Property 

Rights Protection Act, section 70.001, Florida Statutes (2018). We 

affirm the amended final judgment in all respects but one, the 

award of reasonable costs and attorney’s fees. 

Appellant owns a three-acre parcel of land on the Destin 

Harbor, which is within the City of Destin. The land is improved 

with, among other things, a restaurant, real estate office, and boat 

slips. In 2009, Appellant applied to build a 160-foot-high-rise 

development on the land. Appellant put significant efforts into its 

development application costing it approximately $291,457. But 
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because of an economic downturn, the development was tabled by 

Appellant before the City ever acted on the application. 

In 2015 and again in 2018, the City amended its 

comprehensive plan. Appellant did not apply to build on its parcel. 

Instead, in 2018 Appellant submitted a claim to the City for 

$14,590,000 alleging diminution in value to its property under the 

Harris Act. Because of the amendments, Appellant alleged that 

any building’s height would be limited to 75 feet. The claim 

included an appraisal as required by subsection 70.001(4)(a) of the 

Harris Act. The City made a $12,000 settlement offer and issued 

a statement of allowable uses. See § 70.001(4), (5)(a), Fla. Stat. 

After Appellant and the City failed to reach a resolution of 

Appellant’s claim, Appellant sued the City under the Harris Act 

bringing two counts for relief. After protracted litigation the trial 

court entered a 61-page amended final judgment. 

In the amended final judgment, the trial court determined 

that the City was entitled under section 70.001(6)(c)2. to its 

reasonable costs and attorney’s fees. This subsection provides: 

In any action filed pursuant to this section, the 

governmental entity or entities are entitled to recover 

reasonable costs and attorney fees incurred by the 

governmental entity or entities from the date of the filing 

of the circuit court action, if the governmental entity or 

entities prevail in the action and the court determines 

that the property owner did not accept a bona fide 

settlement offer, including the statement of allowable 

uses, which reasonably would have resolved the 

claim fairly to the property owner if the settlement 

offer had been accepted by the property owner, 

based upon the knowledge available to the governmental 

entity or entities and the property owner during the 90-

day-notice period. 

Id. (emphasis added). 

The trial court determined that the settlement offer to 

Appellant from the City was bona fide. But the trial court did not 

determine whether the offer “reasonably would have resolved the 

claim fairly to the property owner if the settlement offer had been 
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accepted by the property owner.” Id. The trial court needed to 

have made that determination. “Sitting as an appellate court, we 

are precluded from making factual findings ourselves in the first 

instance.” Douglass v. Buford, 9 So. 3d 636, 637 (Fla. 1st DCA 

2009) (citations omitted). 

Therefore, while we otherwise affirm the judgment in favor of 

the City, it is necessary to vacate paragraph 13 on page 60 of the 

amended final judgment where the trial court determined that the 

City is entitled to reasonable costs and attorney’s fees under 

section 70.001(6)(c)2. That leaves open the City’s request for an 

award of reasonable costs and attorney’s fees under section 

70.001(6)(c)2., which along with the City’s motion for appellate 

costs and fees, must be determined in a manner consistent with 

this opinion. 

AFFIRMED in part, VACATED in part. 

B.L. THOMAS, BILBREY, and TANENBAUM, JJ., concur.

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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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D. Kent Safriet and Joshua E. Pratt of Holtzman Vogel Baran 

Torchinsky & Josefiak, PLLC, Tallahassee, for Appellant.

William G. Warner and Eric A. Krebs of Warner Law Firm, P.A., 

Panama City; Kimberly Romano Kopp of Romano Kopp Law, P.A., 

Destin; Kyle S. Bauman of Anchors Smith Grimsley, Fort Walton 

Beach, for Appellee.