Recommendation Concerning Approval of Settlement in the Matter of Escambia County v. Robert Chapman Enterprises, Inc., Case No. 2011 CA 000345.
That the Board take the following action:
A. Approve a settlement of $90,000.00 to Robert Chapman Enterprises, Inc. (RCEI) in Case No. 2011 CA 000345 for payment of attorney's fees and costs in exchange for the entry of a stipulated final judgment of dismissal with prejudice; and
B. Authorize the entry of a stipulated order determining attorney's fees and costs in the sum of $90,000.00 requiring payment to Robert Chapman Enterprises, Inc. |
An eminent domain proceeding to obtain a drainage easement so as to alleviate flooding in the Perdido Bay Estates subdivision, especially along Choctaw Avenue, was filed by the County on February 28, 2011. Mediation took place on January 31, 2012 in which the County agreed to pay additional compensation and to increase the size of certain stormwater drainage pipes that were being installed as part of the flood mitigation project so as to allow RCEI to develop its property for a residential subdivision should it ever obtain a development permit and FDEP permitting.
The County's contractor, Roads, Inc. installed the stormwater drainage pipes within reasonable tolerances, according to our project engineer, but some of the pipe segments had a small negative incline in draining to Perdido Bay. RCEI's engineer rendered an opinion that the negative incline of certain stormwater pipe segments would adversely affect stormwater drainage capacity and RCEI refused to execute a general release and dismiss the eminent domain proceeding according to the terms of the mediation agreement of January 31 2012. (MA). County moved to enforce settlement as did RCEI.
Both motions were heard before Circuit Judge Ross Goodman on May 13, 2014. After an all day evidentiary hearing, Judge Goodman found that the County had violated the terms of the MA because certain pipe segments had negative inclines and were draining away from Perdido Bay. Judge Goodman entered an order giving RCEI the option of specific performance, in other words, a reinstall of the stormwater drainage pipes, or setting the case for trial and having a jury determine adequate compensation. RCEI chose the reinstall which was completed in February 2016.
RCEI then moved for attorney's fees and payment of out-of-pocket expenses such as expert witness fees for its successful bringing of a motion to enforce settlement. At a hearing on October 5, 2017, Circuit Judge John Miller, the successor to Judge Ross Goodman, determined that RCEI was entitled to attorney's fees and expert witness costs because the granting of the motion to enforce settlement was in the nature of a supplementary proceeding. He cited to a Florida Supreme Court case that held, without payment of attorney's fees and costs, the compensation received by RCEI for the drainage easement would be substantially diminished. The Court then ordered that the parties to engage in settlement negotiations to resolve the amount of attorney's fees and costs to be paid by County.
This office is recommending resolution of the amount of attorney's fees and costs in the sum of $90,000.00. On November 20, 2017, RCEI had demanded the sum of $105,343.22 for payment of attorney's fees and costs. Attached to this recommendation is a proposed stipulated order determining attorney's fees and costs in the sum of $90,000.00. Once this sum is paid to RCEI, through its attorney, RCEI's attorney has notified this office that it will allow the stipulated final judgment of dismissal with prejudice to be entered which will bring this case to a close.
Attached is a copy of the proposed Stipulated Final Judgment of Dismissal with Prejudice. It should be noted that there are certain obligations set forth in the MA which will continue after the entry of the final judgment of dismissal with prejudice which includes waiver of stormwater impact fees for future development, withholding comment during the permitting process, should one occur, either with the Army Corps of Engineers or the Florida Department of Environmental Protection and not diminishing the stormwater capacity now in existence.
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