City of Tallahassee v. Boyd

• Decision Date: 17 February 1993
• Docket Number: No. 91-810,91-810
• Citation: 616 So.2d 1000
• Parties: 18 Fla. L. Weekly D540 CITY OF TALLAHASSEE, Appellant, v. William W. BOYD, Weaver Oil Company, et al.
• Court: Florida District Court of Appeals

Page 1000

616 So.2d 1000

18 Fla. L. Weekly D540

CITY OF TALLAHASSEE, Appellant, v. William W. BOYD, Weaver Oil Company, et al.

No. 91-810.

District Court of Appeal of Florida First District.

Feb. 17, 1993.

Rehearing Denied May 14, 1993.

Edwin R. Hudson of Henry, Buchanan, Mick & English, P.A., Tallahassee, for appellant.

Alan E. DeSerio of Brigham, Moore, Gaylord, Wilson, Ulmer, Schuster & Sachs, Tampa, Joe W. Fixel, and A.J. Spalla, Tallahassee, for appellees.

PER CURIAM.

The City of Tallahassee (City) appealed a final judgment entered on a jury verdict awarding business damages to Appellee Weaver Oil Company (Weaver Oil). Having determined that Appellees failed to allege a basis for an award of statutory business damages, we reverse and remand with instructions for the trial court to enter a directed verdict and a judgment allowing no business damages. See Section 73.071(3), Florida Statutes (1989); Palm Beach County v. Tessler, 538 So.2d 846 (Fla.1989).

This case originated as an eminent domain action wherein the City condemned certain real property as part of the widening of Ocala Road. Parcel 142 is a 14-foot wide, 176-foot long strip of land bordering the Ocala Road right-of-way. Weaver Oil leased the parent property, from which Parcel 142 was taken, and operated a gas station/convenience store doing business as Hogly Wogly. The property is located at the southeastern corner of Ocala Road and Tennessee Street. The City's Ocala Road project and related construction resulted in the following: 1) Parcel 142 was taken, allowing the widening of Ocala Road and the right-of-way. 2) The Ocala Road entrance to the Weaver Oil leasehold was widened from about 72 feet to 91 feet. 3) A utility pole was relocated and a portion of the curb and grass traffic control island at the southeastern corner of Ocala Road and Tennessee Street was reconstructed on existing public right-of-way, not on the land acquired by condemnation. 4) The reconstruction of the traffic control island caused that portion of public right-of-way available for Weaver Oil's use, as the westerly of two Tennessee Street entrances, to be reduced from 44 feet to 27 feet at its narrowest point, although greater width was maintained at the mouth of the entrance. The easterly entrance on Tennessee Street was undisturbed.

Prior to the trial, the City entered into a Stipulated Partial Final Judgment with the fee title owner and Weaver Oil, whereunder the City agreed to pay $77,300 "in full payment for the property (designated Parcel Nos. 142, 742 herein) taken and for all other damages of any nature, with the exception of statutory business damages and attorney's fees and costs." Parcel 742 was a temporary construction easement. That agreement was approved by the trial court on February 1, 1991, and recognized that the sole unresolved issue was statutory business damages claimed by Weaver Oil pursuant to section 73.071(3)(b), Florida Statutes (1989).

Throughout the proceedings below, Weaver Oil asserted its entitlement to business damages as a result of an alleged loss of access caused by the narrowed westerly Tennessee Street entrance. There was testimony that the westerly entrance was the main entrance. The City contended that business damages were not recoverable for a loss of access unless that loss was attributable to the loss of use of the physical property condemned, Parcel 142, and that alleged damages resulting from the reconstruction of the traffic control island were not recoverable because the construction occurred on existing right-of-way.

The City objected to the requested jury instructions and proposed verdict of Weaver Oil and requested its own, based on the language in section 73.071(3)(b). Over the City's objections, the trial court used Weaver Oil's proposed verdict form and granted an instruction that Weaver Oil was entitled to be compensated for claimed business damages resulting from the alleged loss of access caused by the narrowing of the westerly Tennessee Street entrance, without the requirement that the loss result from the denial of the use of the physical property so taken.

At the conclusion of Weaver Oil's case-in-chief, the City moved for a directed verdict, which was denied. At the conclusion of the trial, the City renewed its motion for a directed verdict and alternatively moved for judgment non obstante veredicto, which motions were denied. The jury returned a verdict finding business damages of $94,000 and judgment was entered on that verdict.

Where appropriation of less than the entire property is sought, as occurred here, section 73.071(3)(b) requires the jury to determine the amount of compensation to be paid for "any damages to the remainder caused by the taking, including, ... the probable damages to such business which the denial of the use of the property so taken may reasonably cause; ..." In Division of Admin., Dep't of Transp. v. Ness Trailer Park, Inc., 489 So.2d 1172, 1180-81 (4th DCA), rev. den., 501 So.2d 1281 (Fla.1986), the appellate court recognized that "[s]everance and business damages are both available in appropriate cases" pursuant to section 73.071(3)(b), so long as an award of both will not result in a duplicative recovery. The City seeks reversal of the trial court's decision, on the grounds that damages for loss of access are limited to severance damages, and that the parties' stipulation settled any such claim.

"Business damages" are "in the nature of lost profits attributable to the reduced profit-making capacity of the business caused by a taking of a portion of the realty or the improvements thereon," LeSuer v. State Road Dep't, 231 So.2d 265, 268 (Fla. 1st DCA 1970), and are considered a matter of statutory largesse. Tampa-Hillsborough County Expressway Auth'ty v. K.E. Morris Alignment Service, 444 So.2d 926, 928 (Fla.1983); Ness Trailer Park, 489 So.2d at 1180. "Severance damages," on the other hand, are generally measured by "the reduction in value of the remaining property." Kendry v. Div. of Admin,, Dep't of Transp., 366 So.2d 391, 393 (Fla.1978); Mulkey v. Div. of Admin., Dep't of Transp., 448 So.2d 1062, 1065 (Fla. 2nd DCA 1984). Severance damages "are considered to be a part of the just compensation to be given for public taking of private property," pursuant to the Florida Constitution. Ness Trailer Park, 489 So.2d at 1180; Daniels v. State Road Dep't, 170 So.2d 846, 851 (Fla.1964). See Fla. Const. art. X, Sec. 6(a).

We agree that severance damages are not an issue in the case sub judice because the parties stipulated to a partial final judgment resolving that question. The issue is whether the trial court erred in not granting the City's motions for a directed verdict or judgment n.o.v. on Weaver Oil's claim of statutory business damages resulting solely from the alleged taking of access rights on Tennessee Street. The broader legal question is whether the restriction of access along the northerly boundary of Weaver Oil's property constituted a taking through denial of the use of "property" pursuant to section 73.071, for which business damages are awardable.

The City argues the prevailing law precludes recovery of business damages for a loss of access unless the physical property that provided the access is taken. Parcel 142 was not used in the construction of the redesigned and narrowed entrance that fronted on Tennessee Street, and no testimony or evidence was presented suggesting otherwise. The driveway at the westerly entrance on Tennessee Street, and the construction that caused the driveway to be narrowed, do not lie on Parcel 142 or on any other real property leased by Weaver Oil, but on property that was and still is public right-of-way.

Weaver Oil relies on decisional law holding governmental action causing a substantial loss of access to one's property is compensable, even though the physical property is not appropriated. See, e.g., Tessler, 538 So.2d at 849; State Dep't of Transp. v. Lakewood Travel Park, Inc., 580 So.2d 230, 233 (Fla. 4th DCA 1991) ("access" is a property right in Florida). In Tessler, the property owner claimed damages arising from construction of a retaining wall along the main thoroughfare providing access to the owner's business, a change that necessitated customers' traveling a circuitous route to get to the business.

The Florida Supreme Court acknowledged the right to be compensated in an inverse condemnation proceeding where "governmental action causes a substantial loss of access to one's property even though there is no physical appropriation of the property itself." Id. 538 So.2d at 849. No taking occurs where governmental action reduces the flow of traffic on an abutting road, because "a landowner has no property right in the continuation or maintenance of traffic flow past the property." Division of Admin. v. Capital Plaza, Inc., 397 So.2d 682, 683 (Fla.1981); State Dep't of Transp. v. Stubbs, 285 So.2d 1, 4 (Fla.1973). The court in Tessler noted "[t]he extent of the access which remains after a taking is properly considered in determining the amount of the compensation. In any event, the damages which are recoverable are limited to the reduction in value of the property which was caused by the loss of access." 538 So.2d at 849. That language essentially articulates the test for severance damages. Mulkey; Kendry. Appellees did not pursue that avenue here, but instead sought statutory business damages in an eminent domain action.

The court in Tessler considered only the question of whether the restriction of access may constitute a taking sufficient to support an award of severance damages. Significantly, that court distinguished a claim for business damages, which "continue to be controlled by section 73.071." Id. 538 So.2d at 849-50. That is, the right to business damages is not constitutionally based, but instead depends on legislative authorization. Department of Agric. & Consum. Serv. v. Mid-Florida Growers, Inc....