Rice v. City of Fort Lauderdale

• Decision Date: 29 June 1973
• Docket Number: Nos. 71--272 and 71--284,s. 71--272 and 71--284
• Citation: 281 So.2d 36
• Court: Florida District Court of Appeals
• Parties: S. A. RICE and Pauline C. Rice, his wife, Appellants, v. CITY OF FORT LAUDERDALE et al., Appellees. CASINO REALTY, INC., Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, and Ocean Front, Inc., a Florida corporation et al., Appellees.

Page 36

281 So.2d 36

S. A. RICE and Pauline C. Rice, his wife, Appellants, v. CITY OF FORT LAUDERDALE et al., Appellees.

CASINO REALTY, INC., Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, and Ocean Front, Inc., a Florida corporation et al., Appellees.

Nos. 71--272 and 71--284.

District Court of Appeal of Florida, Fourth District.

June 29, 1973.

Rehearings Denied July 27, 1973.

Samuel L. Heller, Johnson & Heller, Ft. Lauderdale, for appellants, S. A. Rice and Pauline C. Rice, his wife.

John A. Thabes, Saunders Curtis Ginestra & Gore, Ft. Lauderdale, for appellant and appellee.

Dea Andrews, Ronald B. Sladon, Fort Lauderdale, Attys. for the City of Fort Lauderdale, and Donald H. Norman, Ross, Norman & Cory, Ft. Lauderdale, for appellee, City of Fort Lauderdale.

MAGER, Judge.

This is a consolidated appeal from a final judgment in condemnation. Appellants, S. A. and Pauline Rice, ¹ and Casino Realty, Inc., were the defendants below and the City of Fort Lauderdale and State Road Department, as the condemning authorities, were the petitioners below. An action in eminent domain was filed against the defendants under Chapter 74, Florida Statutes, for the purpose of condemning a portion of their property for the widening of U.S. Highway A--I--A in Fort Lauderdale. The subject property consisted of a tract of land with approximately 200-foot frontage on Highway A--I--A on which was situate a restaurant or supper club; petitioners were seeking to condemn the westerly 20 feet of defendants' property.

Defendants hold undivided interests in the fee as well as leasehold interests as follows: (1) The Rices are the owners of an undivided one-third interest and Casino was the owner of the remaining two-thirds interest of the fee; (2) the Rices leased their one-third interest to Casino (Casino Restaurants, Inc., was a sub-lessee of Casino Realty and operated the restaurant on the premises).

Defendants sought damages for the taking and severance damages for the remainder. The claim for damages was based primarily on loss of parking to the restaurant, interference with the egress and ingress and difficulty in getting to related parking. In attempting to establish their measure of full compensation defendants sought to have their lease agreement introduced into evidence and sought to present testimony as to the capitalized value of such lease which the trial court rejected. In arriving at a value of defendants' damages, petitioners' appraisers did not give any consideration to the lease. Defendants also sought to introduce evidence of the cost to cure the taking of the parking area, which the trial court also rejected.

In addition to assigning as error the aforementioned rulings the defendants raised several other points. We have considered and discussed only those points which have merit, except as may be otherwise hereinafter indicated.

At the beginning of the trial defendants requested leave of court to present their case and also requested the right to open and close the case, which requests were rejected by the trial court. We are of the opinion that there is merit to defendants' request notwithstanding the holding of Parker v. Armstrong, Fla.App.1960, 125 So.2d 138, cert. den., 133 So.2d 321 (Fla.1961). In Parker, the Second District court held that the right to open and close rests with the Condemnor and not with the owner-defendant. The court reasoned that the condemning authority has the duty to come forward with the evidence so that the jury may determine the value of the property taken before a judgment can be obtained on the question of damages, and that having this burden to proceed in the case, condemnor should have the right to open and to close. The Second District referred to an Annotation appearing in 73 A.L.R.2d 618, et seq.: Condemnation--Right to Open and Close, and placed great emphasis upon the 'rule in Illinois'.

The rationale of Parker, when considered in the context of eminent domain proceedings initiated under Chapter 74 does not preclude the right of an owner to open and close. This is so because there is a distinction between proceedings under Chapter 73 and the procedure authorized in Chapter 74. It is this distinction that mitigates the decision in Parker v. Armstrong, supra. The purpose of Chapter 74 is to allow public agencies to obtain title to and possession of property Before the entry of the final judgment. Chapter 74 utilizes what is referred to as a 'quick taking' mechanism. An analysis of Parker v. Armstrong, clearly reflects that the court did not construe the 'quick taking' procedures under Chapter 74--it could not consider this procedure inasmuch as Chapter 74 was not enacted until (1965 (Parker was decided in 1960).

The difference between the procedures outlined under Chapters 73 and 74 bears directly on the question of which party has the burden of proof. As it is pointed out in 73 A.L.R.2d 618, 619:

'Most of the cases are in agreement that the right to open and close the argument should be accorded to the party upon whom rests the burden of proof, that is, the party who would suffer defeat if no evidence was given on either side'.

In pointing out that the distinction between the proceedings under Chapters 73 and 74 and in recognizing the strong arguments to support the view that the owner under certain circumstances should have the right to open and close it is noted in Florida Eminent Domain Practice and Procedure, 2d ed., published by The Florida Bar, Section 7.9:

'1. When the condemning authority employs the procedure authorized by F.S. Chapter 74, which is supplemental to the procedure authorized by F.S. Chapter 73, F.S. Chapter 73 allows all instrumentalities in Florida vested with the power of eminent domain, whether governmental, corporate or individual, to proceed with the acquisition to final judgment. Upon payment of the judgment, title to the land sought to be condemned vests in the condemnor. However, the condemnor may elect not to pay the judgment, and thus waive the right to acquire the property. When the condemnor utilizes the privileges granted by F.S. Chapter 74, however, and deposits its estimate of full compensation in the registry of the court pursuant to an order of taking, it is irrevocably bound to conclude the proceeding. In such a situation, the burden, it is argued, Immediately shifts to the owner to show that the estimate does not represent full compensation. The owner therefore, should have the right to open and close.

'2. In all situations when damages are sought over and above the value of the actual land being acquired, such as compensation for business damage, moving costs and Particularly severance damages, it is argued that the primary burden rests on the owner. Thus, if the owner fails to establish his claim to these special damages by competent proof, the owner will lose. For this reason, attorneys for the owner assert that the owner should have the right to open and close.' (Emphasis added.)

One of the underlying factors in the Parker decision was the so-called 'Illinois rule' which permitted the condemnor to open and close. The more recent Illinois decisions have receded from the earlier Illinois cases which were cited in support of the Second District's decision in Parker. See Department of Business & Economic Dev. v. Brummel, 1972, 52 Ill.2d 538, 288 N.E.2d 392; Department of Public Works & Buildings v. Tinsley, 1970, 120 Ill.App.2d 95, 256 N.E.2d 124, and Department of Public Works and Buildings v. Dixon, 1967, 37 Ill.2d 518, 229 N.E.2d 679. In Department of Public Works and Buildings v. Dixon, supra, at p. 681, the court specifically held that under the 'quick take' provisions of the Illinois eminent domain act the landowners had the right to open and close argument. The court observed:

'. . . We are of the opinion, however, that in a condemnation proceeding following the immediate vesting of title (quick-take) the condemnee should have the right to open and close argument. It is he who is seeking just compensatisation guaranteed to him by the constitution for property over which he has unwillingly lost possession and control and for damages to his remaining land not taken.'

See also Village of Penn Yan U.R. Ag. v. Penn Yan Rlty. Corp., 1968, 57 Misc.2d 1033, 294 N.Y.S.2d 66.

Following, therefore, what we believe to be the view supported by a majority of the jurisdictions we conclude that under the 'quick-take' condemnation proceedings contained in Chapter 74, Florida Statutes, the landowner-condemnee has the right to open and close. Cf. Department of Business and Economic Dev. v. Brummel, supra. On this basis alone, the final judgment must be reversed for a new trial.

As heretofore indicated there are, however, several additional points which merit further discussion and which must be considered in connection with any...