DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GENERAL COMMERCIAL PROPERTIES, INC.,

Appellant,

v.

STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION,

Appellee.

No. 4D14-0699

[October 14, 2015]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Janis Brustares Keyser, Judge; L.T. Case No. 

2013CA001015XCXXXMB.

S. Brian Bull and John L. Bryan, Jr. of Scott, Harris, Bryan, Barra & 

Jorgensen, P.A., Palm Beach Gardens, for appellant.

Marc Peoples, Tallahassee, for appellee.

CONNER, J.

In this appeal, we decide whether the trial court erred in determining 

the amount of attorney’s fees awarded to the property owner under section 

73.092, Florida Statutes (2012), in eminent domain proceedings brought 

by the Florida Department of Transportation. The statute requires the trial 

court to use the first written offer made by DOT prior to initiating the 

eminent domain proceeding in calculating the amount of fees to be 

awarded. General Commercial contends the trial court erred by not using 

a written purchase offer made by DOT in 2005 under its Early Acquisition 

Program. Because (1) DOT made the 2005 offer in an attempt to acquire 

the property as a voluntary acquisition and (2) DOT expressly conditioned

that offer as not being usable in calculating attorney’s fees if an eminent 

domain proceeding was subsequently necessary, we affirm the trial court’s

use of a written offer made by DOT in 2012.
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Factual Background and Trial Court Proceedings

DOT developed an Early Acquisition Program (“EAP”) to acquire 

properties it anticipated would be needed for a road expansion project, 

before the project was fully funded. The program offered property owners 

the opportunity, without any obligation, to sell their property to DOT prior 

to any formal agency decision being made to initiate eminent domain 

proceedings. The program sought property through arms-length 

negotiations during the early phases of project planning, when no threat 

of eminent domain proceeding was imminent because the project plans 

were far from final. DOT designed the program for properties that were 

currently vacant so as not to affect ongoing businesses. The EAP was 

outside of the regular acquisition program that is connected with 

condemnation proceedings. 

In 2005, prior to any agency decision to initiate eminent domain 

proceedings, DOT identified that it may need several parcels owned by 

General Commercial for a road expansion project in Riviera Beach. At that 

time, DOT did not have a project resolution authorizing it to go forward 

with the highway construction and to engage in the regular acquisition 

process used for eminent domain proceedings. In 2005, DOT did not 

anticipate that it would be initiating eminent domain proceedings earlier 

than October 2007. 

After DOT contacted General Commercial about the EAP in relation to 

a vacant parcel it owned General Commercial, in December 2004,

contacted DOT expressing an interest in using the program for parcel 192, 

which it also owned. By that time, DOT had identified parcel 192 as a 

property it expected to need, but General Commercial was not approached 

about the EAP for that parcel because the property was not vacant, and

an ongoing business was operating on the property. However, after 

General Commercial expressed an interest in using the EAP for parcel 192, 

in January 2005, DOT sent a letter to General Commercial inviting it to 

participate in the program for that parcel. After General Commercial 

acknowledged, through counsel, that it wanted to proceed, DOT made a 

formal offer under the program in March 2005 to purchase parcel 192 for 

$400,000 (“EAP offer”). Despite further negotiations, no agreement was 

reached and the offer was abandoned.

In 2013, DOT initiated its eminent domain suit to acquire parcel 192. 

As required by statute, prior to initiating suit, DOT offered to purchase the 

parcel in May 2012 for $699,000 using its “regular acquisition” process 

(“RAP offer”). The RAP offer was rejected. Subsequently, the final 
3

judgment awarded $800,000 for the parcel.1 

General Commercial sought an award of attorney’s fees using the 

“benefits” achieved standard set forth in section 73.092, Florida Statutes

(2012). Section 73.092(1)(a) defines “benefits” as the difference between 

the final judgment amount and the “first written offer” made after the 

defendant hired an attorney, if no offer was made prior to the defendant 

hiring an attorney. As such, General Commercial contended that the “first 

written offer” was made in March 2005 for $400,000 during the EAP. It 

further contended it was entitled to attorney’s fees in the amount of 

$120,000, as determined by applying the applicable statutory percentage 

to the difference between the $800,000 final judgment and the EAP offer. 

DOT contended that the first written offer was the $699,800 RAP offer, 

which would entitle General Commercial to attorney’s fees in the amount 

of $33,000, after applying the statutory percentage. The trial court agreed 

with DOT and awarded fees using the RAP offer. The details of the 

argument by both sides in the trial court and the trial court determinations 

are discussed in more detail below. 

Appellate Analysis

Whether a trial court properly applied the law in determining which 

writing constituted the first written offer for calculating attorney’s fees is 

a question of law subject to de novo review. Pompano Beach Cmty. 

Redevelopment Agency v. Holland, 82 So. 3d 1034, 1036 (Fla. 4th DCA 

2011).

As part of full compensation for a taking, the condemning authority 

must pay the property owner’s attorney’s fees. § 73.091, Fla. Stat. (2012). 

Before seeking to acquire property through eminent domain power, the 

condemning authority is required by statute to “attempt to negotiate in 

good faith” with a property owner. § 73.015(1), Fla. Stat (2012). During 

such negotiations, the condemning authority must provide the owner with 

a written offer. Id. The award of fees in an eminent domain proceeding is 

tied to the amount offered to purchase the property by the condemning 

authority prior to suit being filed. 

Section 73.092, Florida Statutes (2012), details the method for 

calculation of fees:

(1) Except as otherwise provided in this section and s. 73.015, 

1 The $800,000 amount included an award for two other parcels as well, but the

motion for attorney’s fees and computation of attorney’s fees by the trial court 

referenced only parcel 192, and not the other parcels.
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the court, in eminent domain proceedings, shall award 

attorney’s fees based solely on the benefits achieved for the 

client.

(a) As used in this section, the term “benefits” means 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. If no written 

offer is made by the condemning authority before the 

defendant hires an attorney, benefits must be measured from 

the first written offer after the attorney is hired.

§ 73.092, Fla. Stat. (2012). Once the amount of “benefit” is determined, 

the statute provides that a percentage of the benefit is the amount of fees 

owed. Id. 

However, when a condemning authority engages in an ordinary arm’s 

length transaction to purchase property, the property owner has no 

entitlement to attorney’s fees, and attorney’s fees pursuant to section 

73.092 does not apply. JEA v. Williams, 978 So. 2d 842, 845 (Fla. 1st DCA 

2008) (“It is undisputed that public entities with eminent domain powers 

have the authority to purchase property to complete their projects as if 

they were an ordinary purchaser of real estate. . . . In an ordinary arm’s 

length purchase, the landowner is not entitled to attorney’s fees.”). A

purchase or attempt to purchase using an ordinary arm’s length 

transaction can be distinguished from a purchase through eminent 

domain proceedings in that there may be no binding offer, no threat of 

condemnation, no definite need for the property, or no pressure on the 

property owner to obtain litigation counsel. See City of Boynton Beach v. 

Janots, 929 So. 2d 1099, 1102 (Fla. 4th DCA 2006).

General Commercial argues that the trial court erred in its calculation 

of the attorney’s fee award in its favor because the court based the award 

using DOT’s 2012 RAP offer as the “first written offer,” instead of the 2005 

EAP offer. DOT makes several counterarguments to support affirmance of 

the trial court. We discuss the two most pertinent counterarguments. 

DOT asserts that the EAP offer was its attempt to acquire properties 

outside of its eminent domain power, using a voluntary process when no 

threat of taking is pending; thus, the EAP offer cannot serve as the basis 

for the calculation of attorney’s fees under section 73.092. DOT also 

asserts General Commercial expressly agreed to not seek attorney’s fees 

based on the EAP offer. Although we view DOT’s second argument 
5

differently, we agree with both arguments.2

The trial court admitted into evidence a letter from DOT to General 

Commercial dated January 3, 2005. The letter was sent after General 

Commercial expressed, through its counsel, that it was interested in 

participating in the EAP. The letter stated that “[b]ased on your favorable 

response we will proceed to have your property appraised.” The letter also 

clearly stated three things: 

DOT was interested in acquiring parcel 192 using the EAP 

because it was “expected” that the property would be needed 

for a road widening project;

“[I]n the ordinary course of business, [DOT] would not be 

seeking to acquire your property until approximately October 

2007;” and

If an agreement was not reached using the EAP, when the 

project was fully funded, DOT “will pursue condemnation, 

provided your parcel is still needed.” 

(emphasis added). The letter further explained, in italicized font as 

indicated below, that

[a]ny offer made in the Early Acquisition Program will NOT be 

considered the initial offer under the “regular acquisition”

process, and will NOT be used as a basis for an attorney fee to 

be paid in the “regular acquisition” process. We will assume 

that you are agreeable to this condition if we do not hear 

from you to the contrary in the next ten (10) days.

(bold emphasis added). A copy of the letter was sent to General 

Commercial’s counsel.

On March 22, 2005, after an appraisal was conducted, DOT delivered

2 DOT argued to the trial court and on appeal that General Commercial agreed 

by silence that the EAP offer would not be used in eminent domain proceedings 

to calculate the amount of attorney’s fees to be awarded. The trial court agreed 

with that position as part of its reasoning in using the RAP offer in calculating 

the fees awarded. Although we agree there is competent substantial evidence to 

support the trial court’s finding that General Commercial agreed by silence that 

the EAP offer would not be used in eminent domain proceedings, we conclude 

that the better analysis is that use of the EAP offer was precluded as an explicitly 

stated condition of extending the offer, rather than an agreement by silence.
6

a statement of offer and a purchase agreement to purchase parcel 192, 

pursuant to the EAP, for the sum of $400,000. The statement of offer and 

purchase agreement were delivered with a cover letter. Similar to the letter 

sent by DOT in January, the cover letter indicated it was “expected” that 

parcel 192 would be needed for road widening, but if an agreement was 

not reached using the EAP, condemnation would be pursued sometime 

after October 2007, “provided your parcel is still needed.” (emphasis 

added). Also similar to the January letter, the March letter contained the 

following language, italicized as indicated below:

Any offer made in the Early Acquisition Program will NOT be 

considered the initial offer under the “regular acquisition” 

process, and will NOT be used as a basis for an attorney fee to 

be paid in the “regular acquisition” process. Your acceptance 

of this provision is acknowledged since we did not hear 

from you to the contrary within ten (10) days of our last 

letter to you.

(bold emphasis added). 

The trial court properly found that the March 2005 offer was made 

under the EAP as an attempt to acquire the property in an arms-length 

transaction, rather than a presuit offer pursuant to section 73.015. The 

trial court also properly found that the offer was extended on the condition 

that it would not be used against DOT as a basis for attorney’s fees in the 

event it was necessary to acquire parcel 192 through eminent domain

proceedings. There was competent substantial evidence to support both 

findings. 

Section 73.015(1)(a)1., requires that a presuit offer be made prior to 

eminent domain proceedings after it is determined that “all or a portion of 

[the owner’s] property is necessary for a project.” (emphasis added). Both 

the January and March 2005 letters clearly indicate parcel 192 was 

“expected” to be needed, and eminent domain proceedings would be 

sought sometime after October 2007, if it “is still needed.” Thus, it is clear 

that the March 2005 offer was not made because it had been determined 

parcel 192 was “necessary for a project.” Moreover, the trial court found 

it significant that seven years elapsed between the March 2005 offer and 

the initiation of eminent domain proceedings.

DOT had the right, during arms-length negotiations, when there was 

no threat of condemnation proceedings, to condition any offer with 

limitations on the use of the offer. General Commercial asked to 

participate in the EAP and wanted the opportunity to consider an offer 
7

under the program. DOT complied with the request by extending an offer 

with a condition limiting its liability for attorney’s fees if the offer was not 

accepted. General Commercial sought and obtained the benefit of having 

an offer extended, which prompted further negotiations. Even though the 

negotiations proved to be unsuccessful to obtain a sale and condemnation 

proceedings were initiated, General Commercial is bound by the 

conditions imposed on the offer it sought in 2005. See 13 Williston on 

Contracts § 38:3 (4th ed.) (explaining that conditions are typically inserted 

for the promisor’s protection); see also Hendricks v. Stark, 126 So. 293, 

297 (Fla. 1930) (“It has been repeatedly held that a person by the 

acceptance of benefits may be estopped from questioning the validity and 

effect of a contract.”). General Commercial has made no argument that 

the cover letter was not part of the March 2005 offer extended. Because

the offer was extended on the specific condition that it could not be used 

to determine attorney’s fees in a condemnation proceeding, General 

Commercial cannot alter the terms of the offer.

Additionally, the trial court agreed with DOT and determined that 

General Commercial expressly waived the right to consider the EAP offer 

for parcel 192 as the first written offer for awarding attorney’s fees in the 

eminent domain proceeding by language included in an addendum to the 

purchase agreement the parties entered into, using the EAP, for parcel 

206, also owned by General Commercial. Parcel 206 was successfully 

purchased by DOT prior to the eminent domain proceedings, using the 

EAP. There was competent substantial evidence for the trial court’s ruling 

on waiver.

Having determined there is competent substantial evidence to support 

the trial court’s determinations, we affirm.

Affirmed.

DAMOORGIAN and FORST, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.