How Is That for Chutzpa?

The Florida Court of Appeal made short work of a state Department of of Agriculture and Consumer Services appeal, claiming a right to attorneys’ fees in a losing case. No, we are not making it up. Some property owners in Florida sued the state for the destruction of their citrus trees in an effort to eradicate citrus canker – that program is described in Haire v. Florida Department of Agriculture, 870 So.2d 774 (Fla. 2004). The owners won, in spite of the state’s argument that no compensable taking had occurred, and eventually recovered $4,000,000 which was less than what they sought.

So the state demanded an award of attornes’ fees on the theory that the owners sought substantially more than the courts evetually awarded, so this meant that the state prevailed and was therefore entitled to an award of attorneys’ fees. Nothing doing, said the court.

 “We find the Department’s arguments to be frivolous. No matter how one looks at the facts, the owners prevailed on the significant issues. The mere fact that the owners sought more in damages than the jury awarded does not mean that they did not prevail on both issues of liability and damages.”

And as if that were not enough, the court noted that the state was proceeding under the wrong statute. In Florida, eminent domain and inverse condemnation fee awards are governed by special statutes (Sections 73.091 and 73.092), not the general one on which the state relied (Section 57.041).

The case is Florida Department of Agricultural and Consumer Services v. Cox, Fla. Court of Appeal, Docket No. 4DO-979, January 26, 2011. The opinion says nothing about who will have to pay the attorneys’ fees incurred in this frivolous appeal.

For the full text of this one-page opinion, go to