ACKERLY COMMUNICATIONS, INC., APPELLANT,
v.
CITY OF WEST PALM BEACH, APPELLEE
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This eminent domain case involves compensation for advertising signs taken by the City of West Palm Beach during condemnation of leased property. The trial court awarded $1,500 using the cost of reproduction less depreciation and salvage value formula, but erred by applying a 50% depreciation rate after striking the opposing expert's testimony supporting that rate, leaving only unrebutted testimony of 5% depreciation.
Interest was not properly presented on appeal because it was never raised in pleadings, proof, argument, or post-trial motions, so that issue lacks merit. The claim for overhead and profit was without merit. The trial court erred in applying a 50% depreciation rate because after striking the City's expert testimony, only the unrebutted 5% depreciation testimony remained for the court to apply.
[1] A claim for interest in an eminent domain proceeding must be properly presented in the pleadings, proof, argument, or post-trial motions to be considered on appeal.
[2] In eminent domain proceedings, the proper measure of compensation for advertising structures is the cost of reproduction less depreciation and salvage value.
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Join FLexlaw to unlock all legal intelligence“The trial court entered a final judgment finding $1,500 to be the total compensation due for the advertising structures.”
Establishes the lower court's judgment that is being appealed
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Join FLexlaw to unlock all legal intelligenceThe City of West Palm Beach condemned leased real estate containing appellant's outside advertising signs. The parties agreed to a non-jury trial limi…
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PER CURIAM.
This is an eminent domain proceeding involving the City’s taking of appellant’s outside advertising signs. The signs were located on leased real estate which was the subject of a City condemnation proceeding. The parties agreed to a separate non-jury trial relating solely to the issue of compensation to the sign owner. The parties agree that the correct formula employed by the trial court was the cost of reproduction less depreciation and salvage value. The trial court entered a final judgment finding $1,500 to be the total compensation due for the advertising structures. On appeal, the sign owner contends the court erred by refusing to award interest and an amount representing overhead and profit. We find both of these arguments to be without merit. Although interest would have been an allowable element, there was never a request or even a mention of it in the pleadings, proof, argument, or post trial motions. The issue is thus not properly presented on appeal.
Appellant also asserts error in that the trial court employed a 50% depreciation figure. The evidence as to depreciation came from two witnesses. The sign owner’s expert testified to a 5% depreciation figure, and the City’s expert testified to a 50% depreciation figure. On motion of the sign owner, the court struck the testimony of the City’s expert on depreciation. The expert was shown to be unqualified to render an opinion. Upon striking of the 50% depreciation figure, the court was left with only the unrebutted testimony of the sign owner’s expert which was 5%. The court thus erred in employing the 50% depreciation figure. The judgment is vacated and the matter remanded to the trial court for further proceedings which shall include a recomputation of just compensation by use of a 5% depreciation amount.
REVERSED AND REMANDED.
DOWNEY and BERANEK, JJ., and GARRETT, EUGENE S., Associate Judge, concur.
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Reid v. In re Est. OF Edgar Sonder, 63 So. 3d 7 (Fla. 3d DCA 2011)…l Bank of Miami, N.A. v. Roca, 534 So. 2d 736, 738 (Fla. 3d DCA 1988) (“A trial court cannot arbitrarily reject unrebutted testimony. In re Estate of Hannon, 447 So. 2d 1027 (Fla. 4th DCA 1984); see also Ackerly Comm., Inc. v. City of W. Palm Beach, 427 So. 2d 245 (Fla. 4th DCA 1983). Where the testimony adduced is not ‘essentially illegal, contrary to natural laws, inherently improbable or unreasonable, opposed to common knowledge, or inconsistent with other circumstances in evidence,’ Laragione v. Hagan, 19…
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Republic Nat'l Bank OF Miami, N.A. v. Roca, 534 So. 2d 736 (Fla. 3d DCA 1988)…ed the uncontro-verted evidence and again entered judgment for Roca. A trial court cannot arbitrarily reject unrebutted testimony. In re Estate of Hannon, 447 So. 2d 1027 (Fla. 4th DCA 1984); see also Ackerly Comm., Inc. v. City of West Palm Beach, 427 So. 2d 245 (Fla. 4th DCA 1983). Where the testimony adduced is not “essentially illegal, contrary to natural laws, inherently improbable or unreasonable, opposed to common knowledge, or inconsistent with other circumstances in evidence,” Laragione v. Hagan, 19…
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In re the Est. OF Frank J. Hannon, 447 So. 2d 1027 (Fla. 4th DCA 1984)…$35,000. The trial court totally ignored this testimony although it was uncontradicted and the only testimony heard. The trial court cannot arbitrarily ignore unrebutted testimony. See Ackerly Communications, Inc. v. [*1029] City of West Palm Beach, 427 So. 2d 245 (Fla. 4th DCA 1983), and Laragione v. Hagan, 195 So. 2d 246 (Fla. 2d DCA 1967). The court erred in this regard. The matter is thus remanded for further proceedings consistent with this opinion. REVERSED AND REMANDED. HERSEY, J., concurs. LETTS, J…
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