Rich v. Harper Neon Co., 2077

• Decision Date: 23 November 1960
• Docket Number: No. 2077,2077
• Citation: 124 So.2d 750
• Parties: Emory G. RICH, Petitioner, v. HARPER NEON COMPANY, Incorporated, a corporation, and State Road Department of Florida, an Agency of the State of Florida, Respondents.
• Court: Florida District Court of Appeals

Page 750

124 So.2d 750

Emory G. RICH, Petitioner, v. HARPER NEON COMPANY, Incorporated, a corporation, and State Road Department of Florida, an Agency of the State of Florida, Respondents.

No. 2077.

District Court of Appeal of Florida, Second District.

Nov. 23, 1960.

Donald Walker, Orlando, William D. Jones, Jr., Jones & Foerster, Jacksonville, for petitioner.

Robert L. Powe, Orlando, for respondent Harper Neon Co., Inc.

Clyde G. Trammell, Jr., Bryan Henry, Tallahassee, for respondent State Road Dept.

ALLEN, Chief Judge.

The State Road Department brought eminent domain proceedings against several tracts of land in the City of Orlando for use in the construction of a limited access state highway. The petitioner, Rich, is the owner of one of the tracts of land. The respondent, Harper Neon Company, Incorporated, is a tenant of an unexpired lease on the tract of land owned by the petitioner, Rich.

Petitioner, Rich, requested by motion that the trial court defer considering the claim of the tenant for damages until after the jury had first returned its verdict upon the issue of damages to the owner. The court entered an order denying this request and held that the owner's and the tenant's claims for damages should be tried simultaneously and that the jury could consider both claims and award an appropriate verdict. It is to this order that the instant petition for writ of certiorari is directed.

At the outset the petitioner is confronted with the fact that this is in effect an attempt to appeal an interlocutory order in a common-law action, contrary to the rules of appellate practice in Flordia. However, exceptions have been made by the appellate courts to permit certiorari to review interlocutory orders under exceptional circumstances. See Brooks v. Owens, Fla.1957, 97 So.2d 693, 695, wherein the Supreme Court of Florida said:

'* * * Where it clearly appears that there is no full, adequate and complete remedy by appeal after final judgment available to the petitioner, this court will consider granting the writ, as where the lower court acts without and in excess of its jurisdiction, or the order does not conform to essential requirements of law and may cause material injury throughout subsequent proceedings for which the remedy by appeal will be inadequate. Kauffman v. King, Fla.1956, 89 So.2d 24; Huie v State, Fla.1956, 92 So.2d 264. See also 5 Fla.Jur. Certiorari Sec. 12.'

Since there are numerous condemnation cases arising all over the State of Florida, we think that this question should be passed upon and not await the trial of the action, which probably would result in numerous appeals if the action of the lower court was incorrect. We shall, therefore, entertain certiorari in this case as we did in a somewhat similar question in the case of State Road Department v. Shell, Fla.App.1960, 122 So.2d 215.

The primary question involved in this case is whether in the trial of an eminent domain case a jury should apportion the damages to a tract of land between the owner of the fee and various other interested parties, such as mortgagees, tenants, lienholders, etc., or should the verdict of the jury only include the damages suffered by the owner of the particular tract and subsequently thereafter the trial judge apportion the jury verdict between the various claimants.

Florida Statutes, § 73.12, F.S.A., states:

'The judgment shall recite the verdict in full and shall be that the property therein described be appropriated to the petitioner in fee simple, or the particular right or estate in said property sought, be appropriated to the petitioner, upon the petitioner paying or securing by deposit of money the compensation found by the verdict of the jury. The court upon appropriate petition shall determine the rights of any mortgagees, judgment creditors and lienholders in respect to the compensation awarded to each owner by the verdict.'

The Florida Legislature in 1959 amended Section 73.12 (Chapter 59-450, Laws of Florida, 1959) by providing that the jury should determine the value of the tract taken in condemnation and the damage to the owner of the property, and that the court, upon petition, should then determine the amount of the compensation awarded by the jury that should go to each of the claimants due an interest in the property or as creditors, such as judgment creditors, lessees,...