Porco v. Love, s. 75--1733

• Decision Date: 20 December 1976
• Docket Number: 75--1734,Nos. 75--1733,s. 75--1733
• Citation: 340 So.2d 1245
• Parties: Al PORCO and Tom Werner, Appellants, v. David R. LOVE et al., Appellees. Al PORCO and Tom Werner, Appellants, v. Richard H. KEES et al., Appellees.
• Court: Florida District Court of Appeals

Page 1245

340 So.2d 1245

Al PORCO and Tom Werner, Appellants, v. David R. LOVE et al., Appellees.

Al PORCO and Tom Werner, Appellants, v. Richard H. KEES et al., Appellees.

Nos. 75--1733, 75--1734.

District Court of Appeal of Florida, Third District.

Dec. 20, 1976.

Rehearing Denied Jan. 12, 1977.

Noriega, Bartel, Chopp, Schatz, Levine & Shuford, Miami, for appellants.

Magill & Sevier, Taylor, Brion, Buker & Greene, Miami, for appellees.

Before HENDRY and NATHAN, JJ., and CHARLES CARROLL (Ret.), Associate Judge.

PER CURIAM.

Appellants Porco and Werner appeal from an adverse final judgment awarding the appellees Kees and Love damages for the conversion of fill which was taken from the appellees' property. Appellants assert as error the fact that the appellee-plaintiffs failed to show that they owned the fill, specifically urging that the trial court should not have ruled on the question of ownership without having heard testimony relative to that issue by appellants' expert witness. Appellants also claim that the damage award was not supported by the evidence and that counsel for the adverse parties made improper appeals to the jury during their closing arguments.

The fill in question was deposited on the appellees' land by the Central and Southern Florida Flood Control District pursuant to an easement from the original owner of the property, Arvida Corporation. The Flood Control District was in the process of digging a canal across a strip of land which bordered on Arvida's property. According to the terms of the easement, Arvida was to keep 'all dredged or excavated materials' placed upon the land which were not needed for the project. The canal excavation was completed by 1968.

In 1966, Arvida conveyed title to the property bordering on the canal to Pan American Citrus Corporation. Pan American subsequently transferred portions of its parcel to the appellees Love and Kees.

In late December 1972 or early January 1973, Frisa Corporation (an appellee herein and defendant below) contacted Porco concerning Frisa's need for land fill for a development project. Porco contacted Werner, who advised that he owned property along the canal and that he was interested in selling fill to Frisa. In addition, he offered to check as to the willingness of other property owners in the area to sell fill.

Frisa began extracting fill from the land along the canal in 1973, pursuant to an agreement with Werner. Porco was to collect payment from Frisa for removed fill at a purchase price of twenty-two cents per cubic yard. Of that price, Porco and Werner were to receive six cents apiece for their labor and services, with the balance going to the various real property...