State Dept. of Natural Resources v. Hudson Pulp & Paper Corp., II-68
363 So.2d 822|
18 September 1978|
STATE of Florida DEPARTMENT OF NATURAL RESOURCES, Appellant, v. HUDSON PULP & PAPER CORPORATION, Frank A. Ford, as trustee, Hercules Power Company, now known as Hercules Inc. of Delaware, Rotaler Corporation, Formerly Cousins Investment Company, and Barnett Bank of Hollywood, as trustee, Appellees.|
Court of Appeal of Florida (US)|
Jack W. Pierce and Kent A. Zaiser, Tallahassee, for appellant.
David W. Foerster of Foerster & Hodge, Jacksonville, for appellees.
A brief chronological recitation of this case is necessary to an understanding of the legal issues involved. Notwithstanding the several parties designated as appellees, the real parties to this appeal are the State of Florida Department of Natural Resources, hereinafter called the Department, and Frank A. Ford, as Trustee for Emma Garrard Ford, Ray Ford Veech, Jean Ford Penrod and Frank A. Ford, hereinafter called Ford.
In 1975 the Legislature of the State of Florida passed Chapter 75-251, Laws of Florida, which provides in material part as follows:
Acting on said motions, the trial judge granted Ford's motion for summary judgment and his motion to strike the Department's notice of dismissal, reciting that "Judgment is hereby entered against (the Department) and in favor of (Ford) as to liability for the payment of full compensation for the taking of the ownership interest of said (Ford) by (the Department) in the lands described in the complaint heretofore filed herein." The order further recited that jurisdiction was retained for the purpose of empaneling a jury to determine the issue of full compensation as to Ford's ownership interest. It is from that order that this appeal is taken.
The complaint describes parcel one and alleges the owner to be Hudson Pulp and Paper Corporation subject to "oil, gas and mineral reservations * * * rights of ingress and egress, rents and royalties now vested in Frank A. Ford, Trustee, * * *." Parcel two is described by legal description, the owner alleged to be Rotaler Corporation, formerly Cousins Investment Company, subject to "oil, gas and mineral reservations * * * rights of ingress and egress and royalties now vested in Frank A. Ford, Trustee, * * * ". Neither the answer It is noted that the statute vesting authority for the subject eminent domain action specifically provided that the taking should be in accordance with Chapter 73 of the Florida Statutes. That chapter generally provides the manner of exercising the power of eminent domain, while chapter 74 provides a discretionary means of taking possession and title to lands sought to be condemned by an order of taking prior to entry of final judgment establishing compensation therefor. Under chapter 74, upon payment of a sufficient deposit, title to the lands may be vested in the condemnor. In the case sub judice, however, the condemnation proceedings were pursuant to chapter 73. As a result, no title or interest whatsoever passed to the appellant by condemnation prior to the filing of its notice of dismissal.
filed by Ford, his motion for summary judgment nor motion to strike the notice of dismissal are under oath, therefore they cannot be given the dignity of an affidavit or sworn statement. There is nothing in the record, other than the bare allegations of the answer and motion for summary judgment, to substantiate Ford's assertions that he is entitled to oil, gas and other minerals "on" the subject lands nor the "top-soil, muck, peat, humus and sand". It is pertinent to note that in his motion for summary judgment Ford did not pray for a judgment of liability for compensation for any interest owned by him and Taken or condemned by the Department; but, instead, prayed for compensation for the interest "held" by him. The difference is not a matter of semantics, for there is not one iota of evidence in the record that the Department has, will or intends to condemn or take any interest owned by Ford. Indeed, the record clearly reveals that at the time the summary judgment was entered, and the motion striking the voluntary notice of dismissal was granted, Ford was in the identical position that he was in prior to the passage by the legislature of Chapter 75-271, Florida Statutes and prior to the filing by the Department of this action. The summary judgment was, therefore, premature. If and when the Department takes, abridges or interferes with Ford's property rights then, unless the Department proceeds by way of eminent domain, Ford has an appropriate remedy by inverse condemnation or, if the invasion of his rights be by tort, such other remedy as the lay may afford. However, until such time as such an event occurs, Ford being in the identical position that he was in prior to the time that the suit was filed, the taxpayers of the State of Florida should not be required to pay.
Rule 1.420, Fla.R.Civ.P., entitled "Dismissal of Actions", provides as follows:
In accordance with that rule a plaintiff has the absolute right to voluntarily...
To continue reading
Request your trial
State, Dept. of Transp. v. Fortune Federal Sav. and Loan Ass'n
... ... of Natural ... Resources v. Hudson Pulp & Paper Corp., 363 ... ...
ORMOND BEACH ASSOCIATES LTD. v. CITATION MORTG., LTD.
...notice of dismissal. Marine Contractors, Inc. v. Armco, Inc., 452 So.2d 77 (Fla. 2d DCA 1984); State Dep't. of Natural Resources v. Hudson Pulp & Paper Corp., 363 So.2d 822 (Fla. 1st DCA 1978); Meyer v. Contemporary Broadcasting Co., 207 So.2d 325 (Fla. 4th DCA 1968). The only recognized co......
Rassi v. Dispatch Service Group, BO-120
...and the trial court has no discretion in granting or denying such a dismissal by a plaintiff. State Department of Natural Resources v. Hudson Pulp & Paper Corp., 363 So.2d 822 (Fla. 1st DCA 1978). Once a plaintiff takes a voluntary dismissal, the suit terminates and the trial court is witho......