Behm v. Division of Administration, State Dept. of Transp.

• Decision Date: 08 July 1976
• Docket Number: No. 45431,45431
• Citation: 336 So.2d 579
• Parties: Ray G. BEHM and Frances K. Behm, Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: Florida Supreme Court

Page 579

336 So.2d 579

Ray G. BEHM and Frances K. Behm, Petitioners, v. DIVISION OF ADMINISTRATION, STATE of Florida DEPARTMENT OF TRANSPORTATION, Respondent.

No. 45431.

Supreme Court of Florida.

July 8, 1976.

Rehearing Denied Sept. 21, 1976.

James J. Richardson, of Henderson, Richardson, Henry, Buchanan, Munroe & Rodman, Tallahassee, for petitioners.

Geoffrey B. Dobson, Tallahassee, Barbara Dell McPherson, Jacksonville, and Winifred Sheridan Smallwood, Tallahassee, for respondent.

OVERTON, Chief Justice.

This cause is before the Court upon petition for writ of certiorari to review the decision of the Fourth District Court of Appeal reported at 292 So.2d 437 (Fla.4th DCA 1974). The decision sought to be reviewed acknowledges direct conflict with City of Jacksonville v. Yerkes, 282 So.2d (645 Fla.1st DCA 1973), Cert. den. 291 So.2d 9 (Fla.1974). We have jurisdiction. ¹ The First District Court of Appeal by another panel in Tuttle v. Division of Administration, State of Florida Department of Transportation, Fla.App., 327 So.2d 841, (1976), reaffirmed but qualified the decision in City of Jacksonville v. Yerkes, supra. The Tuttle decision is now before this Court upon the asserted contention that it conflicts with the Yerkes decision and a certification of the First District that it passed upon a question of great public interest.

The issue before this Court concerns the latitude an eminent domain jury has in awarding compensation when the only evidence on an element of compensation is the testimony of one expert witness.

The petitioners were the property owners in an eminent domain proceeding below, and challenge the jury's verdict of $9,500 for business damages. Evidence offered by the property owners' expert at trial valued the business damages at $19,500. The property owners assert that the jury was without authority to award them less than the sum of $19,500. The specific facts were well summarized by Judge Walden in his decision for the Fourth District:

'The owners of a hardware store claim business damages because the taking prevented the display of sales merchandise outside the building out in front of the store. The property owner's expert witness testified that in order to cure the lack of display space it would be necessary as a substitute for the store to advertise in some way somewhere to the tune of $100 to $150 per month. More specifically, he testified:

"A I started an investigation, and what I did is I went to other hardware stores, Singer Hardware, Park Center Hardware, Sewell Hardware, Hower and Engine Repair, Hall Hardware, Ace Hardware, and asked them what they through (sic) this area in front of their store where they put their merchandise was worth to them.

"Q Mr. Holden, please don't testify as to what they told you. Now, did you find that they characteristically put items out front of the same nature that we have here?

"A They use it exactly the same and the first thing any one of these stores did was put their merchandise out in the morning because that to them was their most valuable asset and the best way of displaying their merchandise for sale.

"Q Based on your investigation did you arrive at an opinion of what this is worth as advertising to a business, this area in front where you display your wares?

"A On acquiring these facts from these different people, they estimated that to take up the loss, if they lost that area, They would have to advertise $100 to $150 a month some place to regain what they are losing in that advertising space and this was what my investigation showed.

"So that I decided then I would use the in between figure of $125 a month, which is what a person would pay then for advertisement they had in front of their store.

"Q In connection with this did you make an examination of Mr. Behm's advertising, did you see some of the bills, what he ordinarily spends for advertising?

"A I did. I then took the $125 which they would spend per month, multiplied it by 12 and arrived at $1,500 a year, which would be an additional advertising campaign that they would, one would put on, due to the lack of that space he had.

"Taking that amount for 25 years at 6 per cent, which gave me a figure of 12,783, that's what it would be worth if someone handed it to you today, it gave me $19,175.

"That $19,175 is Estimated business loss due to this loss in advertising space. To show you what I mean, if someone was given $1,500 a year for 25 years they would arrive at $37,500. But you would have to wait the 25 years to get all that money, so this is what we would do to find out what it's worth if it was given to you today.' (Emphasis supplied.)

'In summary, the witness picked the figure of $125 per month, based on what somebody told him, multiplied it by 12 to reach the yearly figure of $1,500. He then multiplied this yearly figure By 25 years to reach a total of $37,500, which he reduced to a present value of $19,175. Thus, the witness in his tenuous equation necessarily relied upon the premise that the building had yet a life of 25 years. It is not shown where or how he obtained this critical ingredient of 25 years to structure his hypothetical workup. But this overlooks other testimony adduced. Furthermore, the witness himself, and properly so, termed the fruit of his calculations as being only an estimate.'

The Fourth District Court of Appeal held the verdict was within the proper range for the compensation of business loss. We agree and affirm.

The petitioner property owners contend that the jury was without authority to award them less than the fugure testified to by their expert witness since the state failed to present any expert testimony on the element of business loss compensation. This contention is predicated upon their interpretation of this Court's decisions in Meyers v. City of Daytona Beach, 158 Fla. 859, 30 So.2d 354 (1947), and Dade County v. Renedo, 147 So.2d 313 (Fla.1962). These decisions established a rule of law in condemnation proceedings requiring that 'the jury verdict must be not less than the lowest estimates nor more than the highest.' Dade County v. Renedo, supra at 316. This rule was necessitated by the uniqueness of condemnation proceedings, and is expressed in instructions to the jury as 'your verdict shall not be less than the lowest value testified to by any witness nor shall it be higher than the highest value testified to by any witness.' See Florida Eminent Domain Practice and...