Manatee County Government Administrative Center Honorable Patricia M. Glass Chambers, First Floor 9:00 a.m. - October 22, 2019
October 22, 2019 - Regular Meeting
Agenda Item #12

Proposed Eminent Domain Settlement; Manatee County v. Russell A. Boncoski, Sr., Case No. 2012 CA 5530; Parcels 139A, 139B, and 739

Briefing Provided Upon Request

Contact and/or Presenter Information
Pamela J. D’Agostino, Assistant County Attorney, Ext. 3750

Action Requested
Motion to: 
  1. Approve the proposed settlement with Paul A. Blucher, Esquire, as attorney for Defendants Russell A. Boncoski, Sr., Julie D. Boncoski, and Bestway Truck Repair, LLC, and Defendant Brian Sehlke in Manatee County Circuit Case No. 2011 CA 5530 as delineated in the attached proposed Settlement Agreement;
  2. Authorize the County Attorney or his designee to execute the attached Settlement Agreement and all other necessary paperwork associated with said settlement; and
  3. Authorize the County Attorney or his designee to take any other action in furtherance of or to enforce the terms of this settlement.

Enabling/Regulating Authority

Article X, Section 6 of the Florida Constitution

Chapters 73, 74 and 127, Florida Statutes

Resolutions R-12-134 and R-12-135

Background Discussion
The County needed to acquire fee simple title to Parcels 139A and 139B and a temporary construction easement for three years for Parcel 739 all to improve 44th Avenue East from 15th Street East to 19th Street Court East.  The parcels are located at 4004 East 15th Street in Bradenton, Florida, and are 335 square feet, 1,030 square feet, and 230 square feet in size, respectively.  In 2012, the County acquired the necessary interests for the project after depositing $12,600 into the registry of the Court.  The amount deposited was equal to the value of the property according to the County’s appraiser.  At the time of the taking, the owners of the parent parcel were Russell A. Boncoski, Sr., and Julie D. Boncoski.  The Boncoskis were also the owners and operators of a business, Bestway Truck Repair, LLC.  The parent parcel was improved with a warehouse and office used for repairing trucks.  Paul A. Blucher, Esquire, represents the Boncoskis and Bestway Truck Repair, LLC, and answered the County’s Petition in Eminent Domain on behalf of his clients.  Brian Sehkle is also a defendant in this matter as he was the holder of a mortgage on the parent parcel.

This case is still in the discovery phase, which has been delayed as the Boncoskis have abandoned the litigation and are nonresponsive to their attorney.  The County Attorney’s Office (CAO) has sought relief from the Court in an effort to move the case forward toward a resolution despite the failure of the Boncoskis to participate in the litigation.  Mr. Sehkle recently asked the Court to declare him the real party in interest and order the County to mediate with him in the place of the Boncoskis.  The Court denied his request, but did authorize Mr. Sehkle to appear at the jury trial to claim the amount of compensation he conceives is due for the taking.  The CAO has found no case in Florida which supports the proposition that a mortgage lender like Mr. Sehkle is entitled to appear at a jury trial to claim the amount of compensation due for the taking, and therefore, would recommend that this order be appealed at the appropriate time.  

Presently, there is outstanding discovery and two hearings scheduled for November.  The first hearing is on a motion where Mr. Blucher is asking the Court to appoint a guardian ad litem to represent the interests of the Boncoskis and Bestway Truck Repair.  If granted, the County would be responsible for paying for the services of the guardian ad litem and would likely be forced to mediate with the guardian ad litem as to just compensation.  The second hearing is for the Court to determine whether the failure of the Boncoskis and Bestway Truck Repair to provide all outstanding discovery and otherwise comply with prior Court orders regarding discovery is willful or a conscious disregard of the Court’s orders.  Regardless of how the Court rules on either of these motions, both may become appellate matters as well.

In lieu of proceeding with the hearings described above, Mr. Blucher and Mr. Sehkle have agreed to settle certain matters as outlined in the attached Settlement Agreement.  Specifically, Mr. Blucher has agreed to:
  1. Join the County in requesting that the Court vacate its prior ruling authorizing Mr. Sehkle to appear at the jury trial; 
  2. Withdraw his motion to appoint a guardian ad litem;
  3. Deposit $1,510 from his trust account back into the registry of the Court (this is the balance of the County’s good faith estimate of value which had not been disbursed to the Boncoskis); and
  4. Petition the Court to withdraw from the case.
Mr. Sehkle has agreed to:
  1. Join the County in requesting that the Court vacate its prior ruling authorizing him to appear at the jury trial; 
  2. Waive any right to appeal the Court’s order on his motion to set aside default and determine real party in interest; and
  3. Not seek to recover attorneys’ fees and costs from the County for any apportionment proceedings or otherwise.
In exchange for the above, Mr. Blucher and Mr. Sehkle request that the County:
  1. Pay $2,000 in full and final settlement to Mr. Blucher for attorneys’ fees and costs;
  2. Pay $15,000 in full and final settlement to Mr. Blucher for experts’ fees and costs provided no other experts appear in this case on behalf of the Boncoskis or Bestway Truck Repair; and
  3. Not oppose any disbursement of registry funds to Mr. Sehkle provided no other party, person, or entity appears at a properly noticed apportionment hearing.
The CAO believes that the amounts to resolve attorneys’ fees and costs and experts’ fees and costs are reasonable under the circumstances and considers disbursement of the registry funds to Mr. Sehkle appropriate in light of the terms of the mortgage.  Approval of this Settlement Agreement will not conclude the eminent domain litigation relative to this parcel as the matter of compensation for the taking must still be determined, likely at a jury trial.  However, the CAO believes that approving this Settlement Agreement is in the best interests of the County and therefore recommends it to the Board.  The recommendation to accept the terms of this settlement agreement considers the complexities of the procedural posture of the case in light of the Boncoskis having abandoned the litigation and the goal of bringing this litigation to a resolution in spite of their absence.  If approved, the CAO will continue to proceed to trial to determine the amount owed for the taking.  

If the County were to reject this settlement, the CAO will proceed with the hearings currently scheduled in November and continue to try to bring this case to a final resolution.  In addition, the County may incur the additional expense of a guardian ad litem being appointed for the Boncoskis and Bestway Truck Repair.

As in all eminent domain matters, the County is ultimately responsible for paying the reasonable fees (per the statutory formula) and costs for the Boncoskis’ attorneys and reasonable fees for the Boncoski’s experts, as well as certain attorney’s fees for apportionment matters.

County Attorney Review
Other (Requires explanation in field below)

Explanation of Other
This is a County Attorney item.

Reviewing Attorney

Instructions to Board Records
If approved by the Board, please e-mail an approved copy of this agenda item to Pamela J. D'Agostino, Assistant County Attorney, at pamela.dagostino@mymanatee.org, and to Alicia M. Stull, Paralegal, at alicia.stull@mymanatee.org. 

Cost and Funds Source Account Number and Name
$17,000; 854-6045661; 2018 Transportation Revenue Impact Note

Amount and Frequency of Recurring Costs

Attachment:  Proposed Settlement Agreement.pdf
Attachment:  Legal Descriptions and Sketches.pdf
Attachment:  Aerial Map.pdf