CHARLES GUARRIA AND HELEN GUARRLA, TERESA PICCHI, ARTHUR CALORE AND ROSE CALORE, WALTER M. TURNHAM AND EUNICE O. TURNHAM, BYRD V. DUKE, JR., AND PAUL H. LAUFER, ELY WEIL AND EDITH WEIL, ELLAS A. HELD AND LOUISE HELD, LESTER M. BARLOW AND BERYL B. BARLOW, ZELMER F. GRINER AND ODESSA J. GRINER, APPELLANTS,
v.
STATE ROAD DEPARTMENT OF FLORIDA, AN AGENCY OF STATE OF FLORIDA, APPELLEE
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Property owners appealed a condemnation judgment by the State Road Department of Florida, challenging whether damages for destruction of an established business are compensable when the entire property is taken, and whether attorneys' fees awarded were grossly inadequate. The court affirmed the judgment, holding that business damages are not separately compensable when the entire property is condemned, and that the attorneys' fees issue was procedurally barred.
Business damages are not separately compensable from real property damages when the condemnation entirely destroys both the business and the land. The question of alleged inadequacy of attorneys' fees cannot be reviewed on appeal because the notice of appeal was filed before the trial judge's order denying the motion for new trial, constituting an abandonment of that motion.
“where the suit is by a governmental agency for the condemnation of a right of way, and the effect of the taking is to injure or destroy an established business of more than five years standing owned by the party whose lands are being taken, located on adjoining, adjacent, or contiguous lands owned by such party, the jury must consider the probable effect the use of such property may have on the business, and assess, in addition to the amount awarded for the taking, the probable damages to such business which the use of the property may reasonably cause.”
Establishes that jury must consider business damage effects in condemnation cases, but distinguishes this from cases involving entire takings
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Join FLexlaw to unlock all legal intelligenceThe State Road Department instituted eminent domain proceedings to take certain lands for a limited access facility. Multiple property owners owned bu…
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This is an appeal by several defendants, from a judgment in eminent domain proceedings instituted by the appellee for the taking of certain lands for a limited access facility.
*6Two questions are posed by the appellants in this appeal, namely: (1) is the destruction or damage to a business of more than five years’ standing compensable under § 73.10(4), Fla.Stat., F.S.A., where the land upon which the business is located is being condemned in its entirety? and (2) were the attorneys’ fees awarded by the jury to the attorneys for the defendants grossly inadequate and unreasonable?
As to the first question posed, we consider the rule to be well settled that “ * * * where the suit is by a governmental agency for the condemnation of a right of way, and the effect of the taking is to injure or destroy an established business of more than five years standing owned by the party whose lands are being taken, located on adjoining, adjacent, or contiguous lands owned by such party, the jury must consider the probable effect the use of such property may have on the business, and assess, in addition to the amount awarded for the taking, the probable damages to such business which the use of the property may reasonably cause.” 12 Fla.Jur., Eminent Domain, § 100. We do not consider the applicable statutes to require the award of damages for a going business of five years or more to be severable from the damages to be awarded for the condemnation of the real property where the effect of the condemnation is to destroy the business by reason of an entire taking of both the business and the land.
On the second question, the record discloses that notice of appeal was filed on June 5 from the judgment rendered on May 8, 1959. After the notice of appeal had been filed from the final judgment, a ruling was made by the trial judge on the appellants’ motion for new trial as evidenced by an order dated June 12,1959.. Although the record does not contain the motion for new trial, we must presume that the recitation contained in the trial judge’s order of June 12, 1959, as to the filing of such motions by the appellants is correct. Upon the state of the record before this court, we are constrained to point out that the question of the alleged inadequacy of the attorneys’ fees awarded by the jury cannot be reviewed. The filing of the notice of appeal on June 5, 1959, prior to the entry of the trial judge’s order denying the motion for new trial, constituted in law an abandonment of the motion for new trial. See Frank v. Pioneer Metals, Inc., Fla.App. 1959, 114 So.2d 329, 330. Further, we point out that in order to obtain a review on appeal of the question of inadequacy or ex-cessiveness of a verdict, there must be presented to the trial judge a motion for new trial containing such ground, a ruling thereon adverse to the movant, as well as an assignment of error directed to the court’s action in denying the motion for new trial upon that ground. See Red Top Cab & Baggage Company v. Grady, Fla.App.1958, 99 So.2d 871, p. 873.
Accordingly, the judgment appealed from should be and it is hereby affirmed.
Affirmed.
PEARSON and CARROLL, CHAS., JJ., concur.
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Fay S. Paul v. Risa Bonnie Kanter & the Hertz Corp., 155 So. 2d 402 (Fla. 3d DCA 1963)…ial Co., Ltd. v. Re-Mark Chem. Co., Inc., Fla.1953, 67 So. 2d 540. An exception is allowed in the instance of the denial of a motion fc_ new trial upon the grounds of inadequacy of the verdict. See Guarria v. State Road Dep’t. of Fla., Fla.App.1960, 117 So. 2d 5. One of the firmest principals of appellate procedure is that in order to hold a trial court in error, that trial court must have had an opportunity to rule upon the question presented to the appellate court for review. We find here that the trial c…
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Forrest L. Bannister and Pattie R. Bannister v. Deane Loes Hart, Jr., 144 So. 2d 853 (Fla. 2d DCA 1962)…eriod prescribed by the rules.” The Court then denied the appellee’s motion to dismiss. The result was that the appellant’s appeal was “salvaged” and heard on the merits. Of like effect is Guarria v. State Road Department of Florida, Fla.App.1960, 117 So. 2d 5, also decided in the Third District. In Guarria, after notice of appeal had been filed from the judgment, a ruling was made by the trial judge on appellant’s motion for new trial. Apparently, the ap-pellee was not attacking the appeal as being prema…1 / 2
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Tampa Transit Lines, Inc. v. Smith, 155 So. 2d 557 (Fla. 2d DCA 1963)…he raised in the trial court on motion for new trial precedent -to appellate review, so the question here is whether or not the trial court abused its discretion in ruling on the motion. See Guarria v. State Road Department of Florida, Fla.App.1960, 117 So. 2d 5; Freeman v. Bandlow, Fla.App.1962, 143 So. 2d 547, 549; Morin v. Halpern, Fla. App.1962, 139 So. 2d 495. There appears no such abuse of discretion. Affirmed. SMITH, C. J., and SHANNON, J., concur.…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- RED TOP CAB & Baggage Co., Inc. v. Grady, 99 So. 2d 871 (Fla. 3d DCA 1958)
- Anne Frank v. Pioneer Metals, Inc., 114 So. 2d 329 (Fla. 3d DCA 1959)