METROPOLITAN DADE COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, AND JOE WOODARD AND LOUISE WOODARD, HIS WIFE, APPELLANTS/APPELLEES,
v.
CURELLI, DOUGLAS, MCCLASKEY, COLLINS N/K/A SASSER AND L & M AUTO PARTS AND CHARLES SASSER, ET AL., APPELLEES/APPELLANTS

Fla. 3d DCA | 1987-06-02
Nos. 85-2174, 85-2571 and 86-88
Before HUBBART, NESBITT and FERGUSON, JJ., HUBBART and NESBITT, JJ., concur.
511 So. 2d 602 Florida District Court of Appeal, Third District (1987) Caution
Cited by 10 cases

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Synopsis

In an eminent domain proceeding, the Florida Third District Court of Appeal affirmed the trial court's final judgment and cost orders, rejecting property owners' claims for business inventory damages in a total taking and affirming expert appraiser fees awarded to property owners.


Holding

Property owners are not entitled to compensation for business inventory damages where there is a total taking of real property rather than a partial taking. The trial court did not abuse its discretion in awarding expert appraiser fees, as the fees were supported by expert testimony regarding reasonableness.


Headnotes

[1] Business damages are not compensable in an eminent domain proceeding involving a total taking of real property.

[2] An appellate court will not reverse a judgment based on an alleged evidentiary error if no reversible error is shown.

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Key Quotes

“Business damages of this nature are not compensable where, as here, there is a total taking of real property, as opposed to a partial taking.”

Establishes the key principle that inventory loss damages are not recoverable in total takings under Florida law

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Facts & Procedural History

Metropolitan Dade County condemned property in an eminent domain action. The property owners, including Clarence McClaskey, sought compensation for lo…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

This is a consolidated appeal from a final judgment and cost orders entered in an eminent domain proceeding. The property owners appeal the final judgment; Metropolitan Dade County, the condemning authority, appeals the cost orders.

The property owners raise five points on appeal. First, it is urged that the trial court erred in denying the appellant Clarence McClaskey compensation for the loss in value of his business inventory allegedly caused by the taking in this case. We cannot agree. Business damages of this nature are not compensable where, as here, there is a total taking of real property, as opposed to a partial taking. See Tampa-Hillsborough County Expressway Authority v. K.E. Morris Alignment Service, Inc., 444 So. 2d 926 (Fla.1983); § 73.-071(3)(b), Fla.Stat (1985). Second, it is urged that an evidentiary error was committed below. No discussion here would be useful as, plainly, no reversible error is shown by this point. Third, the remaining three points urged on appeal relating to (a) the jury verdict, (b) the service of summons on appellant Charles Sasser, and (c) the final argument of Dade County’s counsel to the jury — have not been preserved for appellate review by proper objection below and do not otherwise present fundamental error. Dubowitz v. Century Village East, Inc., 385 So. 2d 1116, 1117 (Fla. 4th DCA 1980); Nelson v. Reliance Insurance Co., 368 So. 2d 361 (Fla. 4th DCA 1978); Florida Antilles Properties, N. V. v. Rose & Rose, Inc., 324 So. 2d 129 (Fla. 3d DCA 1976).

Dade County, in turn, attacks the propriety of the trial court’s costs award of certain fees to two expert property appraisers hired by the property owners. Dade County presents no persuasive reason as to why these awards are excessive. It instead argues that the fees awarded are more than the fees paid by Dade County to its expert property appraiser and that the trial court did not otherwise explain how it arrived at its figures. This showing, in our view, falls far short of establishing that the trial court abused its discretion in making these awards. Moreover, the fee awards are otherwise fully supported by expert testimony adduced below as to the reasonableness of the fees. See Dade County v. Brigham, 47 So. 2d 602 (Fla.1950).

The final judgment and costs orders under review are in all respects

Affirmed.

HUBBART and NESBITT, JJ., concur.

Dissent
FERGUSON, Judge

FERGUSON, Judge

(dissenting).

I would reverse and remand for a new trial.

During closing argument to the jury the assistant county attorney, using a pad or easel, wrote the words “Greatest Real Estate Eminent Domain” vertically in large letters. Counsel for property owners say they were unable to see the writing without moving away from their seats. After the jury retired, counsel saw that the first letters of the words were enclosed in one circle to spell “GREED.” At the time the words were written and encircled the county was making an argument that the property owners were making excessive claims.

At another point during the trial the assistant county attorney referred to a property owner’s auto salvage business, derogatorily, as a junkyard. Then the county caused a civil service summons to be served on one of the property owners in the presence of the jury. When the owner sought to confer with his attorney the officer threw the papers at his feet.

In another argument, designed to appeal to the jurors’ personal interest as taxpayers, it was said:

When the government takes funds out of its coffer, out of its accounts and pays it to property owners for full compensation, it is not yellow, pink, orange or white. It is green. It is real. It is dollar bills.

Appellants-property owners complain that the remarks and actions of the County created an atmosphere in the courtroom which so infected the trial that they had no chance to fairly demonstrate that the compensation offered for their lands was unjust.

The Florida Supreme Court in Conner v. State Road Dept, of Florida, 66 So. 2d 257, 259-60 (Fla.1953), condemned similar prejudicial remarks of the government in an eminent domain action:

There was no excuse whatever for making such remarks. They were out of context, impertinent and had no place in the argument, neither was there any basis in the evidence or the record for them_ They contained a sectional appeal, an unfair and a prejudicial implication _if it is a fact that just compensation for the lands taken and damage to those left was not awarded, the owner should have a chance to demonstrate it to a jury free from bias or prejudice.... Attorneys should not permit their zeal and enthusiasm for their client’s cause to lead them into making argument to the jury, appealing to their personal, or selfish, interest, or to inflame prejudice....

Even in the absence of contemporaneous objections the acts and remarks, considered collectively, made for a proceeding which was so fundamentally unfair as to require reversal. Seaboard Air Line R.R. v. Strickland, 88 So. 2d 519 (Fla.1956); Borden Inc. v. Young, 479 So. 2d 850 (Fla. 3d DCA 1985), review denied, 488 So. 2d 832 (Fla.1986).


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Citator

Cited By

  • …ctice and Procedure § 9.46, at 9-61, 9-62 (7th ed.2008). . “Business damages ... are not compensa-ble where .. . there is a total taking of real property, as opposed to a partial taking." Metro. Dade County v. Curelli, Douglas, McClaskey & Collins, 511 So. 2d 602, 603 (Fla. 3d DCA 1987). . “[T]he legislative intent is to allow business damages only to concerns having a physical existence for more than [tire requisite number of] years at the location where the partial taking is alleged to have caused busines…
  • State v. SUN Island Boats, Inc., 510 So. 2d 603 (Fla. 3d DCA 1987)
    …min., Fla. Dep’t of Transp., 448 So. 2d 1062 (Fla. 2d DCA 1984). Sun Island was unable to show either physical contiguity or unity of use. Section 73.071(3)(b), Florida Statutes (1985), is therefore inapplicable. Metropolitan Dade County v. Curelli, 511 So. 2d 602 (Fla. 3d DCA 1987). Our attention has been called to other authority, Baldwin Park Re-Development Agency v. Irving, 156 Cal.App.3d 428, 202 Cal.Rptr. 792 (1984), which allowed compensation for loss of value of personal property caused by the taking…
  • Dade Cnty. v. Midic Realty, Inc., 549 So. 2d 1207 (Fla. 3d DCA 1989)
    …ounty v. Brigham, 47 So. 2d 602, 604 (Fla.1950). The allowance of appraiser’s fees is a matter for the trial judge to decide in the exercise of sound judicial discretion. Brigham. In Metropolitan Dade County v. Curelli, Douglas, McClaskey, Collins, 511 So. 2d 602 (Fla. 3d DCA 1987), review denied, 520 So. 2d 585 (Fla.1988), this court faced a similar issue. There, Dade County attacked the reasonableness of appraiser’s fees on the ground that the fee paid by the county to its appraiser was lower, and that the…

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