CITY OF MIAMI BEACH, A FLORIDA MUNICIPAL CORPORATION, APPELLANT,
v.
A. J. CUMMINGS AND SADIE BELK CUMMINGS, HIS WIFE, BERTRAM M. GERSON AND CLARA D. GERSON, HIS WIFE, AND CLARA D. CLEMENTS, AMELIA KING BUCKLEY AND MARY JANE KING, APPELLEES
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The City of Miami Beach appealed judgments awarding attorney's fees to landowners after the city dismissed eminent domain proceedings against their property. The court held that attorney's fees may be awarded regardless of whether dismissal is initiated by the condemning authority or the defendants, and that the trial court did not abuse its discretion in awarding the fees.
Attorney's fees may be properly assessed against a condemning authority regardless of whether the suit is dismissed at the condemning authority's instance or at the defendants' motion. The awards were not an abuse of discretion because they fell within the limits testified to by expert witnesses.
[1] Attorney's fees may be awarded to a landowner when a condemnation proceeding is dismissed, regardless of whether the dismissal is at the instance of the condemning author…
[2] Dismissing an eminent domain suit at the landowner's motion does not preclude the landowner from recovering attorney's fees.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“There is no authority for appellant's proposition that a suit in eminent domain dismissed at the defendant's motion should be treated differently from a suit dismissed at the instance of a condemning authority. Such a holding would penalize a defendant for advancing a defense to which he is legally entitled and would therefore not be in accordance with due process.”
Establishes the core holding that defendants may recover attorney's fees whether dismissal is by the city or by defendants' motion, and that denying fees would violate due process.
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Join FLexlaw to unlock all legal intelligenceThe City of Miami Beach brought two separate suits to condemn the same property owned by the appellees. In the first suit, the city abandoned the proc…
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These appeals by the City of Miami Beach are from judgments each of which awarded attorney’s fees to a landowner after the dismissal of proceedings in eminent domain. The city brought a suit to take the appellees’ property, but because the awards were higher than the city’s available money the city abandoned the proceeding. See City of Miami Beach v. Cummings, Fla.App.1969, 228 So.2d 109, where an award of attorney’s fees in that suit was affirmed.
Later the city brought the present suit to condemn the same land for the same purpose. The second suit was dismissed upon the motion of the appellees. Thereafter appellees sought a judgment for their attorney’s fees as costs. See Section 73.091, Fla.Stat.1 F.S.A. The trial court took testimony and entered the judgments which are now appealed from.
Appellant’s first point urges that attorney’s fees are not properly assessed against the condemning authority when the suit is dismissed at the instance of the defendants. The city recognizes that under the law of this state attorney’s fees may be allowed when the condemning authority dismisses its own suit. See City of Hallandale v. Chatlos, Fla.1970, 236 So.2d 761, and cases cited therein.
There is no authority for appellant’s proposition that a suit in eminent domain dismissed at the defendant’s motion should be treated differently from a suit dismissed at the instance of a condemning authority. Such a holding would penalize a defendant for advancing a defense to which he is legally entitled and would therefore not be in accordance with due process. Cf. State ex rel. Paoli v. Baldwin, 159 Fla. 165, 31 So.2d 627, 630 (1947).
Appellant’s point urging that the amounts awarded as attorney’s fees were so large as to demonstrate an abuse of discretion by the trial judge must fail. The awards were proper because they were within the limits testified to by expert witnesses. City of Miami Beach v. Cummings, Fla.App.1969, 228 So.2d 109.
Affirmed.
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Est. of Eunice G. Hampton v. Fairchild-Florida Constr. Co., 341 So. 2d 759 (Fla. 1976)…, regardless of whether the con-demnee’s land is actually taken, Dade County v. Oolite Rock Company, 311 So. 2d 699 (Fla. 3d DCA 1975); City of Sunrise v. West Broward Utilities, Inc., 311 So. 2d 175 (Fla. DCA 1975); City of Miami Beach v. Cummings, 239 So. 2d 501 (Fla.3d DCA 1970). . The present situation differs from the delegation of the power of eminent domain to railroad, canal, telephone, and telegraph companies. See generally Sections 73.151 and 73.161, Florida Statutes (1975).…
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Dade Cnty. v. Oolite Rock Co., 311 So. 2d 699 (Fla. 3d DCA 1975)…gs at the trial level has committed an abuse of discretion. See, Florida East Coast Railway Co. v. Martin County, Fla.1965, 171 So. 2d 873; Dean v. State Road Department, Fla.App. 1966, 184 So. 2d 517; City of Miami Beach v. Cummings, Fla.App. 1970, 239 So. 2d 501; City of Miami Beach v. Manilow, Fla.App.1971, 253 So. 2d 910; City of Miami Beach v. Liflans Corporation, Fla.App. 1972, 259 So. 2d 515; City of Miami v. Culbertson, Fla. App.1973, 281 So. 2d 578. In City of Miami Beach v. Liflans Corporation, thi…
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City OF Miami Beach v. Manilow, 253 So. 2d 910 (Fla. 3d DCA 1971)…re discussed together. To begin with, the court may award reasonable attorney’s fees in eminent domain cases involving dismissal before trial. City of Hallandale v. Chatlos, Fla.1970, 236 So. 2d 761 and City of Miami Beach v. Cummings, Fla.App.1970, 239 So. 2d 501; § 73.091, Fla.Stat.1969, F.S.A.; cf. § 73.131(2), Fla.Stat.1969, F.S.A. Next, the trial court could consider the value of the property as an element in the computation of reasonable attorney’s fees. City of Miami Beach v. Cummings, Fla.App.1969, 22…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Baldwin, 159 Fla. 165 (Fla. 1947)
- Culbertson v. Seacoast Towers E., Inc., 236 So. 2d 761 (Fla. 1970)
- City OF Hallandale v. Wiliam F. Chatlos, 236 So. 2d 761 (Fla. 1970)
- City OF Miami Beach v. Cummings, 228 So. 2d 109 (Fla. 3d DCA 1969)