DOMINICK J. SALFI ET AL., PETITIONERS,
v.
DIVISION OF ADMINISTRATION, STATE OF FLORIDA, DEPARTMENT OF TRANSPORTATION, RESPONDENT
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.
Property owners challenged an eminent domain proceeding seeking to acquire their land for a highway rest area. The court held that while the condemning authority has power to condemn for rest areas as limited access facilities, the proceeding must be dismissed because the Resolution of Necessity was adopted after the condemnation proceedings were initiated, contrary to established precedent requiring prior adoption.
The court held that: (1) the condemning authority has authority to condemn property for a rest area as a limited access facility under Florida Statute § 338.04 (1973), but (2) the proceeding must be dismissed because under Tosohatchee Game Preserve, Inc., the Resolution of Necessity must be adopted prior to initiating the eminent domain proceedings, and a subsequent resolution adopted after filing cannot cure this jurisdictional defect.
[1] A condemning authority has the power to acquire property for use as a rest area incident to a limited access highway.
[2] An eminent domain proceeding dismissed for want of jurisdiction due to a defective Resolution of Necessity cannot be revived by an amended complaint attaching a resolutio…
Previewing 2 of 3 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“in order to withstand a motion to dismiss a petition in condemnation must be accompanied by an authorizing resolution adopted prior to the initiation of eminent domain proceedings”
Establishes the governing legal standard from Tosohatchee that a resolution must predate the filing of condemnation proceedings
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceThe Department of Transportation sought to acquire Parcel No. 112 owned by the petitioners for use as a rest area on a limited access highway. The ini…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Eminent Domain Proceedings cases and more on FLexlaw
WALDEN, Judge.
Eminent Domain proceedings. The trial court denied the property owners’ Motion to Dismiss the condemning authority’s Amended Complaint and to strike the condemning authority’s Amended Declaration of Taking. The trial court went on to enter the Order of Taking. Based on these decisions the property owners sought this Court’s common law writ of certiorari. We grant the writ and quash the orders in question.
The first question challenges the condemning authority’s power to condemn a rest area for a limited access highway. The property owners’ position is that the source of the power is found in Fla.Stat. § 337.27 (1973), and that rest areas are not there specified. We need not decide that point as there is an alternate source, Fla. Stat. § 338.04 (1973), which empowers the acquisition of property for limited access facilities. It is our opinion that rest areas qualify as a limited access facility and we so hold.
The second question:
Where a proceeding in eminent domain is dismissed for want of jurisdiction in the Court to hear and maintain such proceeding by reason of a defective and insufficient Resolution of Necessity by the governing head or body of the condemnor, can the cause be revived and jurisdiction created by an Amended Complaint to which is attached a Resolution adopted subsequent to the date of the initial institution of the proceedings.
The setting is correctly projected in the property owners’ brief, “[u]pon the initial institution of these proceedings Respondent filed its Complaint seeking the fee title in Petitioners’ land it designated as Parcel No. 112.
“In due course the proceedings were dismissed upon a finding that the Resolution of the Secretary of Transportation made and adopted May 22, 1974, was insufficient to confer jurisdiction upon the Court to hear and entertain the proceedings with leave granted to Respondent to amend as it might be advised.
“Thereafter Respondent filed its Amended Complaint to which was attached a new Resolution made by the Secretary of Transportation on September 11, 1974, which was subsequent to the filing of the original Complaint.
“The question, therefore, is squarely present of whether the proceedings having once been dismissed for want of jurisdiction can be revived and can jurisdiction be created by the filing of an Amended Complaint to which is attached a resolution subsequently adopted on September 11, 1974.”
The issue is governed by Tosohatchee Game Preserve, Inc. v. Central and Southern Fla. Flood Control District, 265 So. 2d 681 (Fla.1972), see also Gulf Power Co. v. Stack, 296 So. 2d 572 (1st DCA Fla. 1974). In Tosohatchee it was held that in order to withstand a motion to dismiss a petition in condemnation must be accompanied by an authorizing resolution adopted prior to the initiation of eminent domain proceedings. Applying this principle, we recall that the original resolution made prior to the filing of the condemnation proceedings was deemed insufficient. The authority, after the filing of the proceedings, adopted a new amended resolution and it is thereon that it rests its right to condemn.
While we dislike the result we reach, as it prefers form over substance, we feel bound under Tosohatchee to order the dismissal of the cause, even though it will likely result simply in the mere filing of a new proceeding with its resolution in satisfactory sequence.
The condemning authority has invited us in several ways to distinguish Tosohatchee —and we were tempted. However, upon consideration, we became convinced that in the long run it would be more desirable to have an absolute and clear method of procedure rather than a muddy and uncertain standard for trial court use.
In conclusion, we hold:
1. The Respondent has the authority to condemn property for use as a rest area incident to a limited access highway. Fla. Stat. § 338.04 (1973). 2.The proceeding must be dismissed because the Resolution of Necessity was adopted subsequent to the initiation of the eminent domain proceedings. Tosohatchee Game Preserve, Inc. v. Central and Southern Fla. Flood Control District, supra.
The petition for certiorari is granted; the orders in question are quashed; and the cause is remanded with instructions to dismiss the proceeding.
It is so ordered.
CROSS and DOWNEY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Fla. Power & Light Co. v. The Canal Auth. OF the State OF Fla., 423 So. 2d 421 (Fla. 5th DCA 1982)…FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur. . See, e.g., Tucker v. Dianne Elec., Inc., 389 So. 2d 683 (Fla. 5th DCA 1980). . Gulf Power Co. v. Stack, 296 So. 2d 572 (Fla. 1st DCA 1974). . Salfi v. Division of Admin., State Dep’t of Transp., 312 So. 2d 781 (Fla. 4th DCA 1975). . Florida E. Coast Ry Co. v. City of Miami, 346 So. 2d 621 (Fla. 3d DCA 1977). . If a court has jurisdiction in a case but simply errs in its decision, its action is merely voidable and, if not timely corrected, is final and b…
-
Fla. E. Coast Ry. Co. v. City OF Miami, 346 So. 2d 621 (Fla. 3d DCA 1977)…s. See Section 73.021, Florida Statutes (1975); Tosohatchee Game Pres., v. Central & So. Fla. Fl. C.D., 265 So. 2d 681 (Fla. 1972); Gulf Power Company v. Stack, 296 So. 2d 572 (Fla. 1st DCA 1974); Salfi v. Division of Admin., State Dept. of Transp., 312 So. 2d 781 (Fla. 4th DCA 1975). In addition, the authorizing resolution must set forth, inter alia, the use for which the property is to be acquired and that the property is necessary for that use, an adequate description of the lands sought to be taken, and t…
-
GIL Eriksen Props., LLC v. Pompano Beach Cmty. Redev. Agency, 997 So. 2d 522 (Fla. 4th DCA 2009)…was aware of the amounts. His objection a year later on the ground that [*524] his lawyer did not have authority was waived. As to the lack of subject matter jurisdiction, in Salfi v. Division of Administration, State, Department of Transportation, 312 So. 2d 781 (Fla. 4th DCA 1975), a condemning authority had filed a condemnation case with a defective resolution of necessity. We held that this was insufficient to confer jurisdiction on the court and that this could not be cured during the lawsuit by a new r…
Authorities Cited
- Tosohatchee Game Preserve v. Cent. & S. Fla. Flood Control Dist., 265 So. 2d 681 (Fla. 1972)
- Gulf Power Co. v. Stack, 296 So. 2d 572 (Fla. 1st DCA 1974)