ERNA FLEISSNER, APPELLANT,
v.
DIVISION OF ADMINISTRATION, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, AND LEE COUNTY, APPELLEES

Fla. 2d DCA | 1974-08-09
No. 73-932
HOBSON and BOARDMAN, JJ., concur.
298 So. 2d 547 Florida District Court of Appeal, Second District (1974) Positive Treatment
Cited by 4 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.

Synopsis

In a condemnation case involving the widening of U.S. 41 in front of Mrs. Fleissner's motel, the court reversed a jury verdict awarding $4,250 for the taking and $2,800 for severance damages because the taking award fell below the range of expert testimony and because the trial court erroneously excluded testimony from a witness with direct operational experience regarding the motel's viability post-taking.


Holding

The court held that a verdict on the taking cannot stand when it falls below the range of expert testimony on that element, even if the total award is within the combined range of evidence on all elements, and that the trial court erroneously excluded the witness's testimony regarding the motel's operational viability after the taking.


Headnotes

[1] A jury verdict awarding damages for the taking of property must be within the range of evidence presented for the value of the taking, even if the total award for taking…

[2] A landowner may present testimony from a witness experienced in operating similar businesses to establish the feasibility of continued operation after a taking, even if t…

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Key Quotes

“When both elements of damage were combined in a single verdict, a verdict beyond the range of evidence was clearly disapproved by the Supreme Court... The decisions in other states where separate verdicts are required are in harmony with our view that the verdict as to the value of the taking cannot stand.”

Establishes that each damage element must fall within the range of expert testimony on that element, not just the combined total

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Facts & Procedural History

The state widened the right-of-way for U.S. 41 by 50 feet in front of Mrs. Fleissner's small motel. Expert testimony on the taking ranged from $5,100 …

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Opinion of the Court
MANN, Chief Judge.

MANN, Chief Judge.

The right-of-way for U.S. 41 was widened by 50 feet in front of Mrs. Fleiss-ner’s small motel. The jury awarded her $4250 for the taking and $2800 for severance damages. As to the taking, the range of expert testimony was $5100 to $11,686. As to severance, the range was $900 to $47,314. Thus, although the total awarded Mrs. Fleissner exceeds the total of the state’s appraiser’s estimate, the jury, being required to determine spearately the value of the taking from that of severance damages, brought in a verdict for less than the minimum amount sustained by the evidence as to the taking. The appellee argues that if the total value awarded is within the range of evidence as to the elements of damage conbined, such a verdict can stand. We disagree. When both elements of damage were combined in a single verdict, a verdict beyond the range of evidence was clearly disapproved by the Supreme Court.1 The decisions in other states where separate verdicts are required are in harmony with our view that the verdict as to the value of the taking cannot stand. In Re: Ohio Turnpike Commission, 1955, 101 Ohio App. 474, 140 N.E. 2d 328; Commonwealth Dept. of Highways v. Milby-Farmer, Inc., Ky.1973, 494 S.W. 2d 88; Commonwealth Dept. of Highways v. Doolin, Ky.1967, 411 S.W. 2d 44.

The appellee, with admirable candor, recognizes the difficulty it has in sustaining this verdict, but argues that in any event the question to be retried is the value of the taking. If this were the only error, we might agree, but there is more.

The property owner offered one appraiser who testified as to value. This witness was an experienced and competent real estate appraiser who testified as to the difficulty which the owner of this motel would have after the taking because the motel building lies so close to the new right-of-way that it would be impossible for automobiles to park in front of the motel units. It became a crucial question whether the motel could survive this circumstance. Mrs. Fleissner tendered a witness whose experience includes the ownership and management of three motels comparable to that involved in this case, including this particular motel, which the witness and her husband had operated for four years. She was not tendered as a witness as to value. She was tendered solely as a witness on the question whether this motel could successfully operate as such after the taking. This was a crucial element. As we have pointed out, the condemning authority suggested that the severance damage was only $900 while the landowner claimed it to be $47,314. The sole purpose in offering this testimony was to persuade the jury that one could not operate a motel whose patrons were obliged to park at some distance from their rooms and carry their bags to a room situated very close to the road right-of-way. The state’s appraisers offered evidence of other motels which had successfully overcome this obstacle. Under the principles laid down by our Supreme Court in Orange Belt Realty Co. v. Craver,2 and Sullivan v. Lear,3 we think that this witness’ testimony was erroneously excluded. See also Annotation, 159 A.L.R. 7.

There being no reason to anticipate that at the retrial of this cause the other irregularities complained of will recur, we do not treat them.

Reversed and remanded.

HOBSON and BOARDMAN, JJ., concur. . Dade County v. Renedo, Fla.1962, 147 So. 2d 313. See also, Meyers v. Daytona Beach, 1947, 158 Fla. 859, 30 So. 2d 354; Garvin v. State Road Dept., Fla.App.1st 1963, 149 So. 2d 869.

. 1893, 32 Fla. 28, 13 So. 444.

.1887, 23 Fla. 463, 2 So. 846.


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Cited By

  • Causeway Vista, Inc. v. State, 918 So. 2d 352 (Fla. 2d DCA 2005)
    …82 (Fla.1976). In a case involving both taking damages and severance damages, the jury is required to determine the value of the taking damages separately from the value of the severance damages. Fleissner v. Div. of Admin., State Dep’t of Transp., 298 So. 2d 547, 548 (Fla. 2d DCA 1974). In such a case, the jury may not return a verdict on taking damages in an amount less than the minimum amount testified to as the value of the taking. Id. Likewise, the jury may not return a verdict on severance damages in a…
  • …factual issue to the jury with the appropriate charge that the [*1126] jury must make such a factual determination prior to addressing the issue of compensation for damage to such a business. See Fleissner v. Div. of Admin., State Dep’t of Transp., 298 So. 2d 547 (Fla. 2d DCA 1974). Section 73.071(3)(a), (b) provides as follows: (3) The jury shall determine solely the amount of compensation to be paid, which compensation shall include: (a) The value of the property sought to be appropriated; (b) Where le…

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