Vlx Properties, Inc. v. Southern States Utilities, Inc., 5

CourtCourt of Appeal of Florida (US)
PartiesVLX PROPERTIES, INC., Appellant, v. SOUTHERN STATES UTILITIES, INC., et al., Appellees. CaseJULY TERM 2000 IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT Opinion filed
Docket Number99-3314,5
Decision Date21 July 2000

VLX PROPERTIES, INC., Appellant,
v.
SOUTHERN STATES UTILITIES, INC., et al., Appellees.

Case No. 5D99-3314

JULY TERM 2000

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

Opinion filed July 21, 2000

Appeal from the Circuit Court for Volusia County, Edwin P.B. Sanders, Judge.

Bruce A. Hanna and C. Allen Watts of Cobb Cole & Bell, Daytona Beach, for Appellant.

Gordon H. Harris and Tracy A. Marshall and Kent Hipp of Gray, Harris & Robinson, P.A., Orlando, for Appellees.

SAWAYA, J.

VLX Properties, Inc. (VLX) appeals a final judgment rendered in favor of Southern States Utilities, Inc. (SSU) denying VLX's petition for inverse condemnation. VLX contends that the lower court erred in concluding as a matter of law that it had to prove ouster or deprivation of all reasonable use of its property in order to recover. We reverse because the lower court applied the wrong legal standard to the facts of this case.

We are aware of the general rule that the "trial court's determination of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent substantial evidence." Department of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So. 2d 101, 104 (Fla. 1988) (citations omitted). However, the issue that we must resolve in these proceedings is one of law and this requires that we review the lower court's decision de novo. See Rittman v. Allstate Ins. Co., 727 So. 2d 391 (Fla. 1st DCA 1999).

This is the second time the parties to this litigation have appealed to this court issues relating to the underlying inverse condemnation action. See VLX Properties, Inc. v. Southern States Utils., Inc., 701 So. 2d 391 (Fla. 5th DCA 1997) (VLX-I). We will not burden this opinion with all of the facts involved in the prior appeal other than to recite those facts that are relevant to the instant appeal. We note that the factual findings in the trial court's order of March 13, 1996, that were reviewed by this court in VLX-I were not challenged by either party in the prior appeal. Therefore, those factual findings constitute the law of this case. See, e.g., Couture Fashions, Inc. v. Romay, 461 So. 2d 235 (Fla. 1st DCA 1984); see also Mulato v. Mulato, 734 So. 2d 477 (Fla. 4th DCA 1999); Thomas v. Perkins, 723 So. 2d 293 (Fla. 3d DCA 1998); School Bd. of Seminole County v. Unemployment Appeals Comm'n, 522 So. 2d 556 (Fla. 5th DCA 1988).

VLX is currently the owner of certain property that includes part of a pond called James Pond which is located in the Glen Abbey subdivision. VLX purchased this property from Lawyers Title Investment Fund, Inc. (LTIF), which owned multiple parcels of land in the Glen Abbey subdivision including nine holes of the golf course which it had contracted to sell to Glen Abbey Golf Course, Inc. (GAGC). SSU is a utility company with eminent domain powers which owns and operates a wastewater treatment plant which it acquired from Deltona Utilities. At the time of the acquisition, Deltona Utilities was ordered by the Department of Environmental Regulation to find an environmentally sound method for disposing of its wastewater. Thus, in June of 1990, SSU entered into an Easement and Reclaimed Water Delivery Agreement with GAGC which granted to SSU the right to discharge reclaimed water onto its golf course. Included within the confines of the golf course was a part of James Pond which was to be used pursuant to the agreement as a holding pond for SSU's reclaimed water. The other portion of the pond was included in the tract of land LTIG subsequently conveyed to VLX for development into single family residences.

Since LTIF still owned nine holes of the golf course, LTIF entered into a Joinder and Consent Addendum to the Delivery Agreement that permitted SSU to discharge its reclaimed water over the nine holes of the golf course prior to closing on the purchase agreement with GAGC. However, due to a scrivener's error, the legal description in the delivery agreement and the addendum included not only the golf course, but lands owned by LTIF that were not under contract to GAGC including the land and part of James Pond that LTIG subsequently conveyed to VLX.

Sometime around the middle of 1995, SSU began delivering its reclaimed water to holding ponds located on the golf course. VLX contends that SSU directly discharged water into James Pond. SSU contends, on the other hand, that it discharged water into other holding ponds on the golf course which spilled over into James Pond during periods of high rainfall. The findings contained in the March 12...

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