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Carlos represents business clients in partner/shareholder disputes, fraud and intentional interference claims, and various contract-based claims. He also represents clients in eminent domain, inverse condemnation, Bert J. Harris, Jr., Private Property Rights Protection Act claims, purchase and sale disputes, real estate broker/agent defense, and commercial landlord/tenant claims.

Carlos received his undergraduate degree from Florida State University, magna cum laude, and his J.D. from Emory University. He may be reached at carlos.kelly@henlaw.com.

A large part of my law practice deals with “takings”—a situation where a government authority with the power to condemn, or a private entity with the power to condemn, has taken private property. Takings falls primarily into one of two large categories:

  1. “Direct takings,” which is when a government or private entity, like a utility, files a lawsuit to acquire private property through the court system; and
  2. “Inverse” or indirect condemnation, which is when a government or private entity has taken private property without using the court system.

In the case, Orlando Bar Group, LLC d/b/a The Basement, The Attic and the Treehouse v. DeSantis, the Fifth District Court of Appeal decided that Governor DeSantis’s executive orders from March 2020 did not amount to a taking of private property. Even though Governor DeSantis’s executive orders:

  • suspended all sales of alcoholic beverages by entities deriving more than fifty percent of their gross revenue;
  • suspended the sale of such beverages for on-premises consumption;
  • limited the operation of bars to seated service; and
  • restricted operational capacity to half of the typical occupancy previously permitted,

the Fifth DCA determined that those executive orders did not amount to a taking of private property.Continue Reading Governor DeSantis’s COVID-19 Closings Not a Taking of Private Property

Claim of LienA business trial lawyer may hear this question or something similar a number of times. The short answer is, “It depends.”

Most of the time, a person or business doesn’t have a right to record a claim of lien in the public records unless the person or business is a contractor, materialman, or supplier. In those circumstances, if the person or business meets other requirements of Florida’s lien law, then it may be appropriate to record a claim of lien.

It’s important to recognize that in most circumstances, however, there is no pre-judgment right to record a lien against real property just because the owner may owe money to a person or business.

A word of caution

Recording a claim of lien, in the absence of a valid basis to do so, can subject a person or business to a claim for attorneys’ fees or damages for slander of title. In the case of a fraudulent lien, the party against whom the lien was recorded has a complete defense to the foreclosure of the fraudulent lien. This can be decisive in a lawsuit against a debtor, as the creditor may have to compromise his or her total amount of damages sought in order to account for the damages or attorneys’ fees incurred in by the debtor defending against a fraudulent lien. The state attorney may even prosecute the filer of a fraudulent lien for a third degree felony.

While a minor mistake in preparing an otherwise valid claim of lien won’t render the lien fraudulent, the law of liens can be complicated. It’s important to consult your lawyer.

Legal options to collect a debt

Continue Reading “Can I put a lien on them?”

You may recall that we blogged about a rare trial court victory for property owners back on May 23, 2018.  Since then, that case has been to the Fourth District Court of Appeal, yet again. The most recent opinion from the Fourth District upheld the trial court’s jury verdict awarding the land owner $2,000,000, plus pre-judgment interest in the amount of $1,302,577.

Interestingly, the Fourth District Court of Appeal also upheld the trial court ruling that excluded Indian River County’s economist and appraiser. The Fourth District concluded that the trial court “properly excluded the economist’s and the appraiser’s testimony, in part, based upon the Bert Harris Act’s plain meaning.”Continue Reading Bert J. Harris, Jr. Private Property Rights Protection Act Update

I regularly preach that a condemning authority must make sure the legal description in the resolution must match the legal description appraised by the appraiser, and must match the legal description in the petition in eminent domain. Pretty straight-forward.

A decision from this summer points out that the legal description must be clear, also.

In the Altman v Brevard County decision, the County used an easement description having two possible boundaries for one side of the easement. The Fifth District Court of Appeal found that the conflicting easement boundaries in the legal description rendered the County’s petition in eminent “fatally defective” and reversed the trial court’s order of taking.Continue Reading Legal Descriptions for a Condemnation: They Gotta Match — But They Need to be Clear, Too!

Do you remember the 80’s? I sure do, Blondie sang Call Me and The Empire Strikes Back came out and we learned that Darth Vader was Luke’s father (still unbelievable nearly 40 years later)! More importantly, the First District Court of Appeal remembers the 80’s and recently referred to a decision it handed down in 1980 when ruling on an inverse condemnation claim.

Who owns an inverse condemnation claim?

In the case from this summer, Robert and Susan Simon owned property in Jacksonville that included a pond into which storm water drained. After owning the property for more than ten years, the Simons decided it was time for the City of Jacksonville to maintain the pond. The Simons filed an inverse condemnation suit against the City, claiming that the City’s drainage of water into the pond amounted to a taking of the pond. The trial court disagreed, saying that if a taking had occurred, it took place years before the Simons acquired the property. (I have talked about inverse condemnation before on this blog.)Continue Reading 1980 — still crankin’ out the hits…and the case law!

There are ways to do this, and I shared a few with the good folks in the Florida Association of County Engineers and Road Superintendents at their Annual Meeting in Orlando. They call themselves “FACERS, ” by the way, which is a rare case of an acronym that you can easily pronounce!

First things first, though: during my remarks, the crowd and I disposed of several myths:
Continue Reading How to $ave Money as a Condemning Authority

Buck Owens, country music legend, famous for, among other things, plucking a red, white and blue guitar on the variety show Hee Haw, wrote and performed the song “Who’s Gonna Mow Your Grass?” which hit No. 1 on the country charts in 1969. My wife and I liked Buck Owens so much that we picked his hit “I’ve Got a Tiger by the Tail” for our walk up song to be played after exchanging our wedding vows. Later, we named our cat after Buck Owens.

Anyway, the song “Who’s Gonna Mow Your Grass?” is about love lost, a common theme in popular music. This blog post is about land lost, a common theme in inverse condemnation cases.

Can the State Take Your Land Simply By Mowing the Grass?

Continue Reading “Who’s Gonna Mow Your Grass?”

Growing up out West, discussed a bit in my post about The Magnificent Seven and the Freedom to Choose, I remember going with my granddad and my dad when they hunted.  Like many families, we had a special nickname for granddad; we grandkids knew him as “Pompa,” from a name my oldest cousin, as a toddler, gave him.

When I was a kid, the first day of hunting season was a state or school holiday, if I remember right.  I was too little to carry a rifle, so I got up early, put on orange, froze my fingers and toes off, and had to be quiet and sit still.  Pompa would get his limit every year, which meant lots of venison and home-made jerky.  I remember the year my dad got a cow elk—lots of elk steak and elk burger for months! 
Continue Reading Dogs, Hunting, and Inverse Condemnation, Oh my!

Merriam-Webster’s on-line dictionary defines “ripe” in several ways. One example is “fully grown,” as in the case of ripe fruit. The Black’s Law Dictionary, 7th edition, on my credenza defines “ripeness” as:

[t]he circumstance existing when a case has reached, but has not passed, the point when the facts have developed sufficiently to permit an intelligent and useful decision to be made.”

That’s a lot of fruit in one bite.

According to a recent decision of Florida’s Fourth District Court of Appeal in GSK Hollywood Development Group, LLC v. The City of Hollywood, Florida, in order to bring a claim under the Bert J. Harris, Jr., Private Property Rights Protection Act, the claim must be ripe.

What Does “Ripe” Mean Under the Bert Harris Act?

Continue Reading Fruit Should be Ripe; Your Bert Harris Act Claim Must be Ripe, Too!