Lovett v. City of Jacksonville Beach
| Decision Date | 02 June 1966 |
| Docket Number | No. G--501,G--501 |
| Citation | 187 So.2d 96 |
| Parties | W. R. LOVETT, Appellant, v. The CITY OF JACKSONVILLE BEACH, Florida, a municipal corporation, Appellee. |
| Court | Florida District Court of Appeals |
McCarthy, Adams & Foote, Jacksonville, for appellant.
Stephen Stratford, Greene, Greene & Kennelly, and Jack F. Wayman and Steven A. Werber, Jacksonville, for appellee.
This is an appeal by W. R. Lovett who was owner of the reversionary fee of property acquired by the appellee city under chapter 73, Florida Statutes, 1963, F.S.A. The appellant seeks reversal of an order dated May 10, 1965, (1) apportioning among the several parties having interests in the property including appellant, the sum of $193,500.00 which was fixed by the jury and adjudged by the trial court to be the total compensation to be made for the condemned property, (2) fixing $15,900.00 as the amount of attorney's fees to be allowed for the services of the several attorneys representing the defendants in the cause and apportioning $6,400.00 thereof to the attorneys for appellant for their services in his behalf, and (3) requiring said attorney's fees and the costs of court (theretofore taxed) to be paid by the condemning authority directly to said attorneys without further order. In making said apportionment of compensation to the parties in interest, the court adopted the verdict of the jury which found that the amount to be paid to appellant W. R. Lovett for his reversionary interest in the fee was $165,000.00, and by way of an advisory verdict found that the amounts which would constitute just compensation to be paid to the several defendant tenants for their leasehold interests were as follows:
To William Doerr and
Betty Doerr $8,000.00
To Stewart Bros. Pharmacy
Inc. $7,500.00
To Robert D. McNamara $8,000.00
To J. R. Newberry $5,000.00
On March 2, 1965, appellant filed a motion for new trial on sundry grounds, but the same was not disposed of prior to entry of the 'Judgment' referred to in the next paragraph. It was formally denied by an order entered April 2, 1965, which order, as will be seen, was subsequent to certain motions of appellant filed March 19, 1965, and prior to the order appealed.
Consequent upon said jury verdict and prior to the order appealed, the trial court on March 17, 1965, entered an order captioned 'Judgment' in which the jury verdict is quoted verbatim and by which the subject property was appropriated to the city in fee simple, conditioned upon payment of the amounts specified by the judgment, totaling $193,500.00. Appellant did not enter an appeal from said 'Judgment' within the 60-day period from date thereof as allowed by the rules of practice, and asserts his right to prosecute this appeal from said order date May 10, 1965, on the premise that it, rather than the 'Judgment' entered March 17, 1965, is in fact and in law the only final and appealable judgment in this cause.
Germane to our inquiry is the fact that on March 19, 1965, two days subsequent to the entry of said 'Judgment,' appellant filed in the trial court motions as follows:
1. For an order distributing to him 'his compensation for the taking of his property herein in accordance with the itemization of the total over-all compensation rendered by the Jury in its Verdict and pursuant to the Final Judgment entered herein,' without prejudice to his separate motion of that date entitled 'Motion to Alter or Amend Final Judgment.'
2. For an order altering or amending the said 'Judgment' of March 17, 1965 (described by the pleader as 'the Final Judgment entered herein'), by increasing to $197,000.00 'the total compensation to be paid to all of the parties herein,' and by increasing to $168,500.00 the compensation to be awarded to the movant. Said motion was based on the grounds: (a) that the verdict of the jury with respect to the compensation to be awarded movant was not supported by the evidence; (b) that the lowest evidence of value of his reversionary interest as owner of the fee was $168,500.00; and (c) that the verdict with respect to the total compensation awarded to him is less than the lowest value of his interest as adduced by the evidence at the trial of this cause.
3. For an order assessing a reasonable fee to be paid by the city for the services of movant's attorneys in this cause and 'to tax same as an item of costs to be paid by the Petitioner (city) herein.' (Prior to the order appealed, the parties holding leasehold interests had also moved the trial court to assess and tax as costs a reasonable fee to be paid by the condemning authority for the services of their respective attorneys in said proceedings.)
On April 2, 1965, the trial court denied appellant's said motion to alter or amend the final judgment of March 17, 1965.
On May 4, 1965, appellant filed in the trial court his petition to have the court determine his reghts and the rights of all other parties in interest 'in respect to the compensation heretofore awarded' to said parties in interest by the jury verdict in said cause and the judgment thereon. Pursuant thereto the trial court on May 10, 1965, entered the 'Order' designated by appellant as the order appealed, by which it is provided:
'1. Pursuant to F.S. 73.12 (F.S.A.) the compensation awarded by the jury for the entire property taken in this proceeding, to-wit: the sum of $193,500.00 shall be apportioned among the interested parties in the following manner and amounts, to-wit:
'a. To the City of Jacksonville Beach, Florida, as ad valorem taxes for the year 1965, the sum of $746.10.
'b. To Duval County, Florida, for ad valorem taxes for the year 1965, the sum of $1,946.15.
'c. To W. R. Lovett the sum of $162,307.75.
'd. To William Doerr and Betty Doerr the sum of $8,000.00.
'e. To Robert D. McNamara the sum of $8,000.00.
'f. To Stewart Bros. Pharmacy, Inc. the sum of $7,500.00.
'g. To J. R. Newberry the sum of $5,000.00.
'2. The Clerk of this Court is hereby directed to disburse from the funds deposited in the registry of this Court by the Petitioner, to the Defendants designated in sub-paragraphs 'a' through 'g' of paragraph 1 above, the sums so apportioned to such Defendants respectively, without further Order of this Court, on May 18, 1965, if no Notice Of Appeal has been filed in this cause by any party to this suit prior to said date. Provided, however, the Clerk shall disburse to Defendant, W. R. Lovett, the sum provided in sub-paragraph 'c' of paragraph 1 above only upon said Defendant, or his attorney, exhibiting to the Clerk paid receipts from the City of Jacksonville Beach and Duval County, Florida, for ad valorem taxes for the year 1964.
Assuming we have jurisdiction to hear this appeal, to which question our first consideration will be devoted, the following points of law are presented for determination:
I. Whether the trial court erred in charging the jury that it should not determine the total compensation to be paid for the condemned property by the device of totaling the compensation to which each party in interest was entitled.
II. Whether the trial court erred in charging the jury that appellant's fee simple interest was 'encumbered by the lesses' on the subject property.
III. Whether the amount awarded to appellant is less than the minimum to which he was entitled under the evidence adduced at the trial.
IV. Whether the fee assessed as part of the costs to be paid by appellee for the services of appellant's counsel is inadequate.
Of primary consideration on any appeal is the question of the appellate court's jurisdiction. It abides throughout the appellate process and is subject to inquiry at any time at the instance of any interested party or of the court ex mero motu. Since it derives only from constitutional or...
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