Cravero v. Florida State Turnpike Authority

• Decision Date: 16 November 1956
• Citation: 91 So.2d 312
• Parties: George CRAVERO, Jr., and Dennis Cravero, Appellants, v. FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State of Florida, Seymour Rosenberg, Samuel M. Edelstein, Margaret Edelstein, George Edelson, and North Dade Water Company, a Florida corporation, Appellees.
• Court: Florida Supreme Court

Page 312

91 So.2d 312

George CRAVERO, Jr., and Dennis Cravero, Appellants, v. FLORIDA STATE TURNPIKE AUTHORITY, a body corporate and politic of the State of Florida, Seymour Rosenberg, Samuel M. Edelstein, Margaret Edelstein, George Edelson, and North Dade Water Company, a Florida corporation, Appellees.

Supreme Court of Florida, Division B.

Nov. 16, 1956.

Rehearing Denied Jan. 10, 1957.

J. M. Flowers, Miami, and Caldwell, Parker, Foster & Wigginton, Tallahassee, for appellants-petitioners.

Wm. P. Simmons, Jr., of Shutts, Bowen, Simmons, Prevatt & Julian, Miami, for Florida State Turnpike Authority.

J. V. Niemoeller, Boardman & Bolles and Myers, Heiman & Kaplan, Miami, for other appellees-respondents.

ROBERTS, Justice.

This is an appeal by George and Dennis Cravero, defendants below, from a judgment and supplementary order entered in condemnation proceedings instituted by the appellee, Florida State Turnpike Authority, against the Craveros and others to condemn land for a road right of way. The Craveros were maned parties defendant as to Right-of-Way Parcel No. 4 because of a recorded instrument entitled 'Contract of Purchase and Sale' by which the appellees Rosenberg et al., as owners, agreed to sell and the Craveros agreed to buy seven parcels of land in Cravero Cloverleaf Estates. Parcels 6 and 7 of the contract included lots in Blocks 8, 12 and 13 of the subdivision; and a portion of the property described as Right-of-Way Parcel No 4 lay in these three blocks and was subject to the contract of purchase and sale.

After the condemnation suit was filed, the attorney for Rosenberg et als. advised the Craveros, by letter, that his clients were unable to perform or to comply with the terms or provisions of the contract 'with regard to Blocks 8, 12 and 13, said declaration [of taking] having rendered it impossible to convey said property to your clients at the times provided in said instrument.' The letter also stated that Rosenberg et als. 'are declaring said instrument null and void and of no further force and effect,' and offered to credit an advance payment of $20,000 'against the unpaid portion of said contract.'

The Craveros then filed in the condemnation proceeding an answer, alleging the fact of the agreement and the attempted rescission thereof by Rosenberg et als., averring that they had a right under the contract to obtain the fee simple title to the property in question upon the payment of the purchase price and that they had no intention of defaulting under the contract, and listing various items of damages, over and above the market value of the land, which they would sustain by virtue of the taking. They moved the court to enter a summary judgment, adjudicating that they were the owners of that portion of Right-of-Way Parcel No. 4 covered by the agreement and, as such, entitled to a separate verdict of the jury as to such property. The trail judge was of the opinion that Rosenberg et al., the fee simple title holders, were the 'owners' of the property in question within the meaning of Sec. 73.11 and 73.12, Fla.Stat.1955, F.S.A., and denied the motion. Upon the motion of Rosenberg et als., he ruled that the allegations of the Craveros' answer 'which do not pertain to the issue of the value of the land taken and damage to the remainder are hereby stricken with leave to reassert them by appropriate petition after the rendition of the Jury's verdict and in light of the Court's findings made above.'

The condemnation suit was tried, the Craveros electing not to participate in the trial, and a verdict awarding damages of some $90,000 to the Craveros and Rosenberg et als. as to Parcel No. 4 was entered. Thereafter, Rosenberg et als. filed in the cause a 'Petition of Fee Owners for determination of Rights in Respect to Awarding.' Counsel for the Craveros did not appear at the hearing originally set on this petition, nor at the hearing on the date to which it was continued because of his absence, although noticed to do so.

The trial judge entered an order on the petition, awarding the entire amount of the damages as to Parcel No. 4 to Rosenberg et als. and allocating to their attorney the attorney's fee awarded by the jury as to Parcel No. 4. His order also declared the contract of purchase and sale to be rescinded as of March 29, 1956, the date of the letter of rescission referred to above. The Craveros have appealed.

The principal contention of the Craveros here is that they were denied due process of law by the trial judge's action in refusing to adjudicate, in advance of the condemnation suit, that they were the owners of that portion of Right-of-Way Parcel No. 4 covered by the 'Contract of Purchase and Sale,' so that the jury could return a separate verdict as to the value of this portion of Parcel No. 4. This contention cannot be sustained, on the basis of the record here presented.

It is settled law in this jurisdiction that, where questions of title are raised in a condemnation suit, a trial judge may postpone a determination of these questions until after the condemnation suit has been tried. 'It is not the purpose of an eminent domain proceeding to try title to the property. See Peeler v. Duval County, Fla., 66 So.2d 247. The purpose of the eminent domain proceeding is to determine the value us of the property taken and damage to the remainder, irrespective of ownership. Such questions as interest in the property, ownership, liens on property, may be determined in the same action in a summary proceeding after the jury has ascertained and rendered a verdict as to the value of the property taken and damages to the remainder.' Porter v. Columbia County, Fla.1954, 75 So.2d 699, 700. See also Shavers v. Duval County, Fla.1954, 73 So.2d 684; 2 Lewis on Eminent Domain, 3d Ed., Sec. 716, p. 1253; 2 Nichols on Eminent Domain, 3d...