RESOLUTION 90-20018 RESOLUTION NO. 90-20018
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF MIAMI BEACH, FLORIDA APPROVING AND ACCEPTING
THE SETTLEMENT OFFER IN CITY OF MIAMI BEACH V.
HERRERA, ET AL, CONCERNING PAYMENT OF
$107 , 500. 00 FOR THE TAKING OF PARCEL NUMBERS
12 AND 13 THEREIN, LEGALLY DESCRIBED AS LOTS
1 AND 2 LESS THE EAST 180 FEET THEREOF, BLOCK
101, OCEAN BEACH ADDITION NO. 3 , AS RECORDED
IN PLAT BOOK 2 AT PAGE 81 OF THE PUBLIC RECORDS
OF DADE COUNTY, FLORIDA, SAID FIGURE
REPRESENTING PAYMENT IN FULL FOR SAID
PROPERTY 'S VALUE AS WELL AS DEFENDANT'S
ATTORNEY 'S FEES AND COSTS; AND FURTHER
AUTHORIZING THE FUNDS FOR THIS ACQUISITION TO
BE TAKEN FROM THE SOUTH POINTE ELEMENTARY
SCHOOL EXPANSION PROJECT WORK ORDER 2970.
BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF MIAMI
BEACH, FLORIDA THAT:
WHEREAS, on November 3 , 1988 , the City of Miami Beach instituted
an eminent domain action styled City of Miami Beach v. Herrera, et
al, Case No. 88-46741, for the purpose of acquiring 16 parcels of
property in Miami Beach for the South Pointe Elementary School
Expansion Project; and
WHEREAS, on December 28 , 1988, Petitioner City of Miami Beach
deposited the sum of $70, 000. 00 into the Registry of the Court,
representing the Petitioner's deposit of funds regarding parcel
numbers 12 and 13 pursuant to the Order of Taking; and
WHEREAS, Attorney J. Michael Fitzgerald (Counsel for parcel
number 12 and 13 in the subject lawsuit, said parcel being legally
described as Lots 1 and 2 less the East 180 feet thereof, Block
101, Ocean Beach Addition No. 3 , as recorded in Plat Book 2 at Page
81 of the Public Records of Dade County, Florida) has made an offer
to fully settle parcel nos. 12 and 13 upon receipt of $107, 500. 00,
said figure representing the subject parcels ' property value,
Defendant' s attorney' s fees and costs; and
WHEREAS, the City Attorney of the City of Miami Beach has
recommended acceptance of this offer.
NOW, THEREFORE, BE IT DULY RESOLVED BY THE CITY COMMISSION OF
THE CITY OF MIAMI BEACH, THAT:
1. The City of Miami Beach finds, determines and declares that
those matters set out in the foregoing recitals are true and
correct, and they are hereby incorporated as a portion of this
Resolution; and
2 . The City Attorney's recommendation concerning acceptance
of the settlement offer from Attorney J. Michael Fitzgerald,
concerning parcel numbers 12 and 13 (legally described as Lots 1
1
and 2 less the east 180 feet thereof, in Block 1010, Ocean Beach
Addition No. 3 , as recorded in Plat Book 2 at Page 81 of the Public
Records of Dade County, Florida) in City of Miami Beach v. Herrera,
et al, is hereby accepted and approved; and
3 . The City of Miami Beach thus authorizes the appropriation
of $37 , 500. 00 as balance due for parcel numbers 12 and 13 in City
of Miami Beach v. Herrera, et al, said funds representing total
remaining payment for the taking of said property including
Defendant's attorney's fees and costs, and further authorizes that
the appropriation of said funds be taken from the South Pointe
Elementary School Expansion Project Work Order 2970.
PASSED and ADOPTED this 20th day of June , 1990.
ATTEST: '°•°:://;2/
, .Ye .
lilt---/
CITY CLERK r.
LF/JKO/rg
FORM APPROVED
LEGAL DEP .
Ft ( ,By i b. Al.
Date .--- f Y--- 0
2 .
OFFICE OF THE CITY ATTORNEY
60,4 vor.:818Amo weed
4
O
F L O R I D A v
r�\P •9ry‘
*IINCOR(GRAM
LAURENCE FEINGOLD P.O. BOX 0
CITY ATTORNEY CH26;\c% MIAMI BEACH, FLORIDA 33119-2032
TELEPHONE (305)673-7470
TELECOPY (305)673-7002
COMMISSION MEMORANDUM.*33`i-
+ 0
DATE: JUNE 20, 1990
TO: Mayor Alex Daoud and
Members of the City Commission
, 6;/.„?
FROM: Laurence Feingold 'viz
City Attorney
SUBJECT: CITY OF MIAMI BEACH V. HERRERA, ET AL. , CIRCUIT COURT
CASE NO. 88-46741, PARCEL NOS. 12 AND 13 - DEFENDANT'S
•
OFFER OF SETTLEMENT OF PROPERTY VALUE
Attached hereto is correspondence from Attorney J. Michael
Fitzgerald (Exhibit "A" hereto) , counsel representing the property
owner for parcel nos. 12 and 13 in the above-styled cause; said
correspondence contains the property owner's formal demand for
settlement of property value regarding parcel nos. 12 and 13 in the
amount of $100, 000. 00. In this regard, also attached is
correspondence from outside counsel John Lukacs, Esquire (Exhibit
"B" hereto) , outlining his reasons for recommending denial of the
settlement offer.
For purposes of establishing property valuation, the date of taking
in this action is December 28 , 1988 (the date on which the court
entered its Order of Taking) . The City of Miami Beach' s appraised
value of the subject parcels as of October, 1988 was $80, 000. 00.
The only appraisal figures submitted by Defendant to date was in
the amount of $77 , 270. 00--this figure, however, was provided by an
appraiser who passed away earlier this year.
In light of the above, I concur with Attorney Lukacs '
recommendation that the City not accept Defendant' s offer of
settlement.
LF/J KO/rg
•
AGENDA
ITEM
•
DATE
1700 CONVENTION CENTER DRIVE - FOURTH FLOOR - MIAMI BEACH, FLORIDA 33139
...la.c,,. ....,.74 s": .,y .. ... _... ,.. .,._.• ,t.. -. .... :!' Y•'. ' + .... j-::Y......._a:...s`ae:t++i�rr: •l^_i.-.�••..1.r.-_..rY.
.:e.r.Jc 6 � } 1-.: .._ .a.ls r - ..-..' ._✓:'Y i -;. - _ +'•i F'fGr.''K r.. .. ,:.b•.-....:: •�.r_::.a.i�`a.::
• - ._- < •'. .''`...: ",'. .t:a.. - s1�.'.%.t �' .t_:il.d...t �-t.� �n3c:a.::v=l:.C:+.�t�' Lam.
4
•
.FITZGEIZAL ), POP TELA 8: t( r r, i it
A. pr FFS!,3t(t 4
'se) :v. F-1.AC.L.En nTnECT. n JI I
MTAMI,FLORIDA :3:x]')11 up. gr.Ar t.E_, �AC.E.
r♦ ►' EAC- F 3714 q'
-ELTrAr. 3F.A•3A4r,
P1'?PT.Y To
Miami
June 11, 1990
John Lukacs
Lukacs and Lukacs •
1825 Coral Way
Suite 102
Miami, FL 33145
Re: City of Miami Beach v. Herrera (Co r.c i.()iin)
FPP File #6086. 1
Dear Mr. Luckas:
As we discussed on the telephone and as I related in my •
prior correspondence, Mr. Corcione will not settle this case for
less than $100, 000. In his opinion, that is its fair market
value. He has now authorised me to make a formal demand f'ol:
settlement in that amount. Please consider this letter such
demand. Realizing that you will have to confer with a pro riate
p p
City officials, we will not put any time limits on this demand .
However, I would appreciate it if you would adv isITIP as corn a
it -has been either accepted or rejected . Thanks.
Very truly yours,
4,/1.,/4‘/‘/\-----Y .1' 41'1'9
J. Michael Fitzgerald
JMF/ml b
`1 •
cc: James Corcione
f }
to •
4 .
I 0
12
EXHIBIT "A"
1_ 1 17 '90 17: -17 g77 ' C1o2 :4. Li_fi.N�._ � �=H f-�rxr_ r-. ��f
LUKACS & LUKACS , R.A.
ATTORNEYS AT LAV.
1SE5 CORAL WAY
MIAMI, FLORIDA 331415
�OFN LUKACS MIAPM; (305) 556 0600 ORLANDO OFFICE
JOHN CHARLES LUKACS TELECOP,ER(305) 256-304 f407) 648-9601
POR!N ALAN LUKACS
June 13 , 1990
Laurence Feingold, Esquire
City Attorney
City of Miami Beach
1700 Convention Center Drive
P.O. Box 0
Miami Beach, Florida 33139-2032
Attn: Jean K. Olin, Esquire
First Assistant City Attorney
RE: City of Miami Beach v. Herrera, et al .
Case No. 88-46741 CA 06
Parcels 12 and 13 (M & N)
Demand for Settlement $100 , 000. 00
Dear Mr., Feingold:
With respect to the foregoing Parcel the City obtained an appraisal
in the amount of $66 , 000. 00 in November, 1986 from Mr. Waronker which
value remained the same on his update at January, 1988 but was
increased to $70, 000 . 00 in October, 1988 . Mr. Leonard Bisz , a second
appraiser, initially appraised the property at $80 , 000 . 00 in December,
1986 and remained the same in March, 1988 .
The offers of settlement and attempts to negotiate with the owner
being unsuccessful, an offer of judgment was submitted at $80, 500 . 00
in April , 1990. In May a verbal offer was transmitted in the amount
of $85, 000. 00 and, at the Court ordered mediation conference, the offer
of settlementtwas raised to $92 , 000. 00.
The owner had no figure until the filing of his Affidavit in
opposition to a Motion for Summary Judgment, in which he stated his
opinion of value at $125, 000. 00, albeit based on an erroneous concept
that he owned 7 , 000 square feet of land instead of the actual 5, 259
square feet of land. Upon learning of this error at the mediation
conference he reduced his demand to $100 , 000. 00 .
A new offer of judgment in the amount of $92 , 000 . 00 is currently
being served upon the owner' s attorney.
•
13
EXHIBIT "B"
•
�..._ ._•. •._.. ..._5... -•..r.. - •.._..:t.. _ .4.1". ..... . _ -. ... _.....ate..-... v.. `a...1.. 1 ..1 w•s_1...ai.-.. ...••. ._-. - .Y.. _.._-t. _12.'1 .-1 _.. _.-a.-... .__..r ' � - ..
T I__It J 17 '90 17: 18 ,TO 705 673 Tim:, r-F-1 X11'1 LI + L_I it P�_ . PP T P �.
Laurence Feingold, Esquire Page Two June 13 , 1990
The present "demand" for $100, 000 . 00 cannot be deemed to be other
than an offer of settlement at the owner' s figure. He has no current
appraisal. Should this case go to a jury trial the owner will
presumably testify that the property is worth $125, 000. 00 . The City' s
appraiser Mr. Waronker will testify to $70, 000. 00.
The jury may derive a verdict no lower than the lowest testimony nor
higher than the highest testimony. Therefore the range is $70, 000. 00
to $125, 000. 00. Should the jury gravitate to the mid point in its
Solomon-like wisdom, the judgment would be for $97, 500. 00. The owner
would be entitled to 12% interest on $27 , 500. 00 being the difference
between the deposit and the verdict, at 12% per annum from December 28 ,
1988 to the date of the judgment in September of 1990. This is 24
months or an additional 24% which equals $6, 600 . 00 of interest.
Additionally the owner will be entitled to his attorney 's fees and
costs at the trial having exceeded our current offer of judgment.
There has already been one trial preparation and a second such
preparation plus additional appraiser' s fees and costs could escalate
the cost somewhat higher. The jury verdict plus interest would equal
$104 ,100. 00.
On the other hand, a jury verdict less than $92 , 000. 00 would result
in an interest add-on of . 24% of the excess over $70, 000. 00 and no
attorney's fees or costs that are incurred after the expiration of the
offer of judgment.
It is therefore my suggestion that the offer of judgment remain as
is while we continue to negotiate with the attorney possibly for a sum
to include costs and fees, without the necessity of additional interest
charges.
Respectfully submitted,
Lukacs ; Luk. s, P.A.
John Lukacs
90-1452 : 01/mej : 15
L QCT K A C S $c L TJ K A C S. P.A.
i -
14
1
OFFICE OF THE CITY ATTORNEY
624 iy:Amme ward
F L O R I D A
;\pMl BEq�
-;!%„
1il
LAURENCE FEINGOLD
RATED
P.O. BOX 0
GO �� �..��q�`'_= MIAMI BEACH FLORIDA 33119-2032
CITY ATTORNEY 'f,CH26_ '
TELEPHONE(305)673-7470
TELECOPY (305)673-7002
COMMISSION MEMORANDUM NO.
DATE: JUNE 20 , 1990
TO: Mayor Alex Daoud and
Members of the City Com ssion
FROM: Laurence Feingold )/1
City Attorney
SUBJECT: SUPPLEMENT TO AGENDA ITEM R 10-C: CITY OF MIAMI BEACH V.
HERRERA, ET AL. , CIRCUIT COURT CASE NO. 88-46741, PARCEL
NOS. 12 AND 13 - DEFENDANT' S OFFER OF FULL SETTLEMENT
INCLUDING PROPERTY VALUE, ATTORNEY' S FEES AND COSTS
Attached hereto is correspondence from Attorney J. Michael
Fitzgerald (Exhibit "A" hereto) , counsel representing the property
owner for parcel nos. 12 and 13 in the above-styled cause; said
correspondence contains the property owner' s offer of settlement
in full regarding parcel nos. 12 and 13 in the amount of
$107 , 500 . 00, said figure representing property value, Defendant ' s
attorney' s fees and costs. In this regard, also attached is
correspondence from outside counsel John Lukacs, Esquire (Exhibit
"B" hereto) , outlining his reasons for recommending acceptance of
the settlement offer.
In light of the fact that this settlement would resolve the subject
parcel ' s valuation, including fees and costs, I concur with
Attorney Lukacs ' recommendation that the City accept Defendant' s
offer of settlement in that acceptance thereof would be more
economically advantageous than proceeding to trial .
LF/J KO/rg
1700 CONVENTION CENTER DRIVE- FOURTH FLOOR - MIAMI BEACH, FLORIDA 33139
loose
FITZGERALD, PORTELA SC PORTVONDO
A PROFESS,0N L ASSOClATIOt,
ATTORNEYS AT LAW
MUSEUM TOWER
'50 W. FL.AGLER STREET, SUITE 2701
F,A,.M BEACH OFFICE
MIAMI,FLORIDA 033.30 59 BRADLEY PLACE
PALM BEACH+, FLORIDA 33480
TE.EPHONE (305)358-0737 (407)659-6438
TELEFAX(305)358-5845
REPLY TO:
Miami
June 14, 1990
John Lukacs
Lukacs & Lukacs, PA
1825 Coral Way
Miami, FL 33145
Re: Miami Beach v. Herrera (Corcione/Parcels 12 & 13)
FPP File #6086. 1
Dear John:
I have received your letter of June 12th and the City' s new
offer of judgment in the amount of .$9-2 , 0-00. 00
John, I want to get this matter resolved and I want Mr.
Corcione to receive his $100, 000. In order to do that, I am
willing to reduce my fees. I have reviewed my time sheets and
have 75 hours on the file. If the matter continues through
additional mediation and trial, that number should double.
Further, there will be additional expert witness fees to pay as
well as the City's increased costs and fees. If we can settle
this for $100, 000 at this time, I will reduce my fees to $7 , 500
and will assume the costs myself., Please discuss it with the
City and let me know.
L.,41A00,_Very truly yours,
J. Michael Fitzgerald
JMF/mlb
cc: James Corcione
Dsk63 :Corcione. ltr
EXHIBIT A
L T T x A C S & .I,..,U K A C S, P.A.
ATTORNEYS AT LAW
1025 CORAL WAY
MIAMI. FLORIDA 3:114ts
JOHN LU,tACS MIAMI (305) 856-9600
ORLANDO OFFICE
JOHN CHARLES -UKACS TEI ECOPIEFR(305) e56.3041
ROBIN ALAN L:JKACS
(407) 648-980i
June 19 , 1990
Laurence Feingold, Esquire
City Attorney
City of Miami Beach
1700 Convention Center Drive
P.O. Box 0
Miami Beach, Florida 33139-2032
RE: City of Miami Beach v . Herrera, et a l .
Case No. 88-46741 CA 06
Parcels M & N (12 and 13) Corcione
Dear Mr. Feingold:
The attached letter from Mr. Fitzgerald on behalf of his client
Corcione, appears to be an offer of settlement for the lump sum of
$107, 500. 00 including all claims.
If this is, his intention I would recommend settlement on that basis
for the following reasons.
There is presently an outstanding offer of judgment in the amount of
$92 , 000. 00. If Mr. Fitzgerald' s client were to accept this
� p i offer at
the
present time the attorney's fees and costs would be in addition
thereto. Assuming that Mr. Fitzgerald's stated hours are correct
a
reasonable attorney's fee could be calculated at $175. 00p er hour for
75 hours which would be approximately $13 , 125. 00; his appraiser' s fee
based on the same scale charged on the other parcels is $3 , 000. 00;
miscellaneous costs taxable against the condemnor are .estimated at 2%
or about $1, 840. 00 bringing a grand total of $109, 965. 00.
Furthermore, if we were to proceed to trial and the jury were to
return a verdict of less than the offer of judgment even, say, at our
appraisers figure of $70, 000. 00, the total cost to the Citycounting
g
its own appraiser's trial preparation time and costs, exhibits and
trial attorney's fees, resource costs (City employee time and trial
testimony and time loss from other work) and similar charges could
amount to some $15, 000. 00Fitzgerald' s or more. Added to Mr. Fitzgerald s current
costs and fees of some $18 , 000. 00 the final cost would be about
$103 , 000. 00 or more. The savings is about $4 , 500. 00. Thisp otential
savings does not, in my opinion, warrant the risk of thejury. coming
in at a higher verdict. Any amount above $70, 000. 00 would bear
interest at 12% which would be 24% by the time of trial .
EXHIBIT B
Laurence Feingold, Esquire Page Two
g June 19, 1990
Please understand that I am ready toroce
this case, however, p ed to trial and to win
I feel i t is incumbent upon me to bring
foregoing matters to the attention of the the
afford the cost of winning. client who may not wish to
Respectfully submitted,
Lukac_ . _
P.A.
A4011
0! 1
John Lukacs
90-1452 : 0]/mej : 17
Enclosures
.
LtTKACS & LITE.ACS, P.A.
ORIGINAL
RESOLUTION NO. 90-20018
Approving and accepting the settlement
offer in C.M.B. V. Herrera, ET AL, con-
cerning payment of $107,500.00 for the
taking of Parcel Numbers 12 and 13
therein, legally described as Lots 1 and
2 less the east 180 feet thereof, Block
101, Ocean Beach Addition No. 3, as
recorded in Plat Book 2 at Page 81 of the
Public Recors of Dade County, Florida,
said figure representing payment in full
for said property's value as well as
defendant's attorney's fees and costs;
and further authorizing the funds for
this acquisition to be taken from the
South Pointe Elementary School Expansion
Project Work Order 2970.