NELLIE MAY YOUNG AND JAMES O. YOUNG, HER HUSBAND, PETITIONERS,
v.
HILLSBOROUGH COUNTY, A POLITICAL SUBDIVISION OF THE STATE OF FLORIDA, RESPONDENT
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The Florida Supreme Court granted certiorari in this condemnation case to resolve whether business damages should be awarded when a partial taking of property destroys an established business. The Court held that Florida Statute Section 73.071(3)(b) expressly provides for business damage compensation in partial takings that destroy a business, contrary to the lower court's application of Guarria v. State Road Department.
The statute expressly provides for business damage compensation in cases of partial takings that destroy a business. The statute makes a distinction between partial and total takings, and compensation for business damages is required when a partial taking destroys an established business on adjoining land owned by the property owner.
“The statute expressly provides that compensation shall be awarded for the probable damages of a business "where less than the entire property is * * * "appropriated * * * and the effect of the taking * * * may damage or destroy an established business * * *.”
Establishes the express statutory language distinguishing partial takings that warrant business damage compensation
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Join FLexlaw to unlock all legal intelligenceHillsborough County brought a condemnation proceeding against the Youngs for a parcel of land that passed through the front of their business building…
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Petitioners in this certiorari proceeding were defendant landowners in a condemnation proceeding brought by Hillsborough County. From a judgment based on pretrial order excluding recovery of business damage under F.S. Sec. 73.071(3) (b), F. S.A.,1 defendants appealed.
The appellate court opinion2 recited evidence that defendant’s business was destroyed by taking the parcel in question, which passed through the front of the business building and required its entire removal. The decision of the trial court was affirmed by reference to the rationale of Guarria v. State Road Dept., Fla.App.1960, 117 So.2d 5, holding the statute does not require award of business damages in case of destruction of a business by “an entire taking of both the business and the land.”
Certiorari has been granted on the basis of decisional conflict created by application of the Guarria decision as controlling precedent in a factual situation materially at variance,3 in that the condemnation award in the present case is not one for an entire taking of both the business and the land. The statute expressly provides that compensation shall be awarded for the probable damages of a business “where less than the entire property is * * * “appropriated * * * and the effect of the taking * * * may damage or destroy an established business * * *.” (E.S.)
In view of the express provision for business damages when a partial taking destroys a business, we are unable to follow the reasoning by which the court below denies such damages, in case of a partial taking which destroys a business, on the ground that the value of the land taken “was enhanced by the operation of a business thereon and we do not see any distinction between a partial taking and a total taking where the business was destroyed.” 4 The statute makes precisely this distinction, whether the business is destroyed or only damaged, and requires compensation under the prescribed circumstances for business damage on adjoining land, which can only refer to damage independent of or in addition to the value of the land actually taken. No issue is presented as to the validity of the statute involved, and we conclude that the court erred in affirming the order and judgment in the present case.
The decision should accordingly be quashed and the cause remanded with directions that the District Court direct that the award be vacated and total damages *302in accordance with the views herein expressed be determined anew.
It is so ordered.
CALDWELL, C. J., and THOMAS, THORNAL and HOPPING, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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O.J. NYE v. City OF Ocala, 559 So. 2d 360 (Fla. 5th DCA 1990)…(3)(b), Florida Statutes, which authorizes special damages for a taking which damages or destroys an established business, is only applicable when less than the entire business premises is sought to be appropriated. See Young v. Hillsborough County, 215 So. 2d 300 (Fla.1968); State Road Department v. Bramlett, 189 So. 2d 481 (Fla.1966); Douglass v. Hillsborough County, 206 So. 2d 402 (Fla.2d DCA 1968); and Palm Beach County v. Awadallah, 538 So. 2d 142 (Fla. 4th DCA 1989), rev. denied, 548 So. 2d 662 (1989).…
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9863 W. Atl. Ave., Inc. v. State of Fla. Dep't OF Transp., 851 So. 2d 191 (Fla. 4th DCA 2003)…dard Oil Co., 510 So. 2d 324, 326-27 (Fla. 2d DCA 1987)(to recover business damages, business must be “solicited, accepted, or conducted” on remainder). The cases relied on by the property owner are distinguishable. In Young v. Hillsborough County, 215 So. 2d 300 (Fla.1968), the entire building in which the business was operated was not taken, but rather the taking resulted only in the loss of a portion of the building. Night Flight, Inc. v. Tampa-Hillsborough County Expressway Authority ex rel. State DOT,…
Authorities Cited
- Pinkerton-Hays Lumber Co., Inc. v. Doyle Pope, 127 So. 2d 441 (Fla. 1961)
- Guarria v. Duke, Jr., 117 So. 2d 5 (Fla. 3d DCA 1960)
- Young v. Hillsborough Cnty., 206 So. 2d 405 (Fla. 2d DCA 1968)