ANGELO REALI, ET AL., APPELLANTS/CROSS-APPELLEES,
v.
MARIO VELOCCI, ET AL., APPELLEES/CROSS-APPELLANTS
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The trial court erred in rejecting the special master's damage finding without reviewing the evidence or record.
[1] A trial court errs by rejecting a special master's damage finding without hearing the evidence directly or reviewing the record of the master's hearing.
[2] A special master's report is presumed to be correct when presented to the trial court.
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Join FLexlaw to unlock all legal intelligencePlaintiffs sought partition of property against their co-owner, who claimed set-off for dumping concrete. The special master found the concrete consti…
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COBB, Judge.
The appellants — Angelo Reali, Joseph Raponi, Albert Mariani and Mario Maria-ni — were the plaintiffs below. As owners of an undivided one-half interest in a parcel of industrial property located north of Orlando, Florida, they sought partition against the co-owner, Mario Velocci. Vel-occi claimed a set-off for betterment on the basis of unused and rejected concrete he had allowed to be dumped on the property over an extended period of time. The Reali group claimed the concrete diminished the value of the property and constituted waste.
By stipulation, the disputed issues were submitted to a special master. After an extensive hearing, the master found substantially in favor of the Reali group, and determined that the layers of concrete on the property constituted “gross waste” rather than an improvement, resulting in damages to the Reali group of $65,000.00 as compensation for the diminished value of their interest in the property.
The court found, contrary to the report of the master, that the waste committed by Velocci did not appreciably depreciate the market value of the property. There was competent, substantial evidence to support the master’s findings; nevertheless, the trial court, without hearing the evidence directly and without reviewing the record of the master’s hearing, rejected the damage finding. This was error. See Ben-Hain v. Tacher, 418 So. 2d 1107 (Fla. 3d DCA 1982); Sitomer v. Sitomer, 397 So. 2d 373 (Fla. 4th DCA 1982); Claughton v. Claughton, 347 So. 2d 437 (Fla. 3d DCA 1977), approved in part, quashed in part, 393 So. 2d 1061 (Fla.1980). A special master’s report comes to a trial court clothed with a presumption of correctness. Mahan v. Mahan, 88 So. 2d 545 (Fla.1956); see also, Harmon v. Harmon, 40 So. 2d 209 (Fla.1949).
The finding by the special master that the Reali group suffered $65,000.00 in damages due to waste should have been confirmed as part of a judgment against Vel-occi.
REVERSED AND REMANDED.
GOSHORN and PETERSON, JJ., concur.
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de Clements v. de Clements, 662 So. 2d 1276 (Fla. 3d DCA 1995)…hese findings and conclusions if they are clearly erroneous or if the Master has misconceived the legal effect of the evidence presented. Mahan v. Mahan, 88 So. 2d 545 (Fla.1956); Kersh v. Kersh, 613 So. 2d 585 (Fla. 4th DCA 1993); Reali v. Velocci, 563 So. 2d 1106 (Fla. 5th DCA 1990), review denied, 576 So. 2d 294 (Fla.1991); Reece v. Reece, 449 So. 2d 1295 (Fla. 4th DCA 1984); Landis v. Landis, 486 So. 2d 28 (Fla. 3d DCA 1986); Ben-Hain, 418 So. 2d at 1108; Sitomer v. Sitomer, 397 So. 2d 373 (Fla. 4th DCA 19…
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Millie M. Wigginton v. Wigginton, 575 So. 2d 233 (Fla. 2d DCA 1991)…12.F. of the dissolution judgment that would have been binding upon the partition court, which we do not find,1 there was competent, substantial evidence to support the partition court’s approval of the ex-husband’s accounting. See Reali v. Vetoed, 563 So. 2d 1106 (Fla. 5th DCA 1990); Bailey v. Parker, 492 So. 2d 1175 (Fla. 1st DCA 1986). We affirm the final judgment of partition, except that we reverse the trial court’s finding that the parties waived any right to profits realized prior to the dissolution j…
Authorities Cited
- Harmon v. Harmon, 40 So.2d 209 (Fla. 1949)
- Claughton v. Claughton, 393 So. 2d 1061 (Fla. 1980)
- Perez v. State, 418 So. 2d 1107 (Fla. 3d DCA 1982)
- Claughton v. Claughton, 347 So. 2d 437 (Fla. 3d DCA 1977)
- Sitomer v. Sitomer, 397 So. 2d 373 (Fla. 4th DCA 1981)
- Mahan v. Mahan, 88 So. 2d 545 (Fla. 1956)