Carlor Co. v. City of Miami

62 So. 2d 897, 1953 Fla. LEXIS 2095
CourtSupreme Court of Florida
DecidedJanuary 30, 1953
StatusPublished
Cited by25 cases

This text of 62 So. 2d 897 (Carlor Co. v. City of Miami) is published on Counsel Stack Legal Research, covering Supreme Court of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carlor Co. v. City of Miami, 62 So. 2d 897, 1953 Fla. LEXIS 2095 (Fla. 1953).

Opinion

62 So.2d 897 (1953)

CARLOR CO., Inc.
v.
CITY OF MIAMI.

Supreme Court of Florida, en Banc.

January 30, 1953.

*898 Evans, Mershon, Sawyer, Johnston & Simmons, Miami, Keen, O'Kelley & Spitz, Tallahassee, Otho S. Bowling, New York City, Herbert S. Sawyer, Miami, J. Velma Keen, Tallahassee and M. Lewis Hall, Miami, for appellant.

Walton, Hubbard, Schroeder, Lantaff & Atkins, John H. Wahl, Jr., John E. Cicero and S.O. Carson, Miami, for appellee.

*899 MATHEWS, Justice.

This is an appeal from a final decree in a suit making a collateral attack upon a final judgment in an eminent domain proceeding in the Circuit Court of Dade County.

An able and experienced Circuit Judge rendered an opinion, contained in the decree dismissing the complaint, dated February 21, 1952. The opinion, among other things, contained the following:

"In April 1943 the City of Miami instituted condemnation proceedings to acquire plaintiff's lands `for port and airport purposes to be used by the City of Miami and its inhabitant.'

"The case was tried to (sic) a jury which, on August 11, 1944, returned a verdict awarding the Carlor Company, Inc. the sum of $255,000.00 as compensation for the taking. On August 14, 1944, final judgment was entered. On August 17, 1944, the City deposited the award in the registry of the court, and pursuant to an order of disbursal dated August 21, 1944, Carlor Company, Inc., accepted the award.

"There was neither a motion for a new trial nor an appeal from the final judgment.

"The lands involved were situated on Virginia Key, an island separated from the mainland by Biscayne Bay. At the time of the condemnation proceedings these lands were inaccessible except by boat and they were undeveloped and unimproved.

"Since the conclusion of the condemnation proceedings a causeway has been erected between the mainland and Virginia Key. Being now thus readily accessible the value of the lands on Virginia Key has been tremendously enhanced.

"As the reasons for setting aside the final judgment of condemnation, Carlor Company, Inc., asserts:

"1. That there was an insufficiency of description in the Resolutions authorizing the taking;

"2. That the quality of the title sought by the City was not properly determined, i.e., its Resolutions did not specify a fee simple title so that the City acquired at most a mere easement;

"3. That the condemnation should have been effected by the Greater Miami Port Authority rather than the City itself; and

"4. That fraud on the part of the City permeated the proceedings.

"A final judgment in condemnation cannot be collaterally attacked by such objections as (1), (2) and (3). Nichols on Eminent Domain, 2nd Ed., Vol. 2, Sec. 395; 29 C.J.S., Eminent Domain, § 326, pp. 1363-1364.

"The remaining objection, i.e., that fraud permeated the proceedings and vitiates the final judgment is based upon the proposition that while the City condemned these lands for the obtensible purpose of utilizing them for port and airport purposes, the fact remains that they have never been so utilized, and the City knew but did not disclose that such would be the inevitable result; this for the reason that the Secretary of War of the United States had flatly rejected the City's request for Federal funds to finance the port and airport project because the project was not necessary in the interests of national defense. Plaintiff asserts that this information was given to the City in a letter from the Secretary of War dated October 10, 1943, which letter, in the interests of national security, was restricted or classified as a military secret and was not unclassified or released as public information until 1945 and not printed until 1947. In passing it might be noted that this suit was not instituted until July 11, 1951, seven years after final judgment was entered, six years after the Secretary's letter was released, and four years after it was printed. Meanwhile, and for the main part, since the information became public, the Causeway to Biscayne Key has been completed with the result, as previously stated, that the lands which were formerly inaccessible and undeveloped, have now increased in value several fold.

"Be that as it may, the objection is based upon a letter which was entirely irrelevant. The condemnation proceeding did not recite that the City's purpose in taking these lands was for or in any way connected with the National Defense. It recited an intended *900 municipal use as, indeed, it could only recite.

"Concerning the failure of the City up to this time to utilize the lands for the purpose stated in the condemnation petition, it should be observed that substantially the same challenges against the good faith of the City were either raised or could have been raised and adjudicated in the condemnation proceedings. Charges of bad faith of the same general character were included in the answer and amended answer of Carlor Company, Inc., in the condemnation suit. The complaint in the instant proceedings merely goes into greater details and particulars. The substance is the same. If the Court, in the condemnation proceedings, erred in striking such matter from Carlor Company's answer and amended answer, that error should have been corrected by an appeal from the final judgment. It is well established that the rules governing the application of the doctrine of res judicata are applicable to condemnation judgments and that the parties are concluded as to all matters which were put in issue or might have been put in issue or were necessarily implied in the decision of the trial court such as the right to condemn and the legality of the proceedings. It is immaterial that the point adjudicated may have been erroneously decided. If it was, the owner should have corrected the error by appeal and cannot now do so by a collateral attack upon the final judgment. 29 C.J.S., Eminent Domain, § 328, pp. 1368-1369; City of Miami v. Osborne, Fla., 55 So.2d 120, decided November 20, 1951. It is likewise established law that there is no reversion where the fee simple title is taken and there is either a failure to use or a discontinuance of the use which impelled the taking. Nichols on Eminent Domain, 2nd Ed., Vol. 2, page 1421; McQuillan on Municipal Corporations 3rd ed., Vol. 11; page 518, and cases there cited; 18 Am.Juris. 750, Eminent Domain, Section 127."

Thereafter the appellant, with the permission of the court, filed an amendment to the complaint. The appellee then filed motion to dismiss the complaint, as amended, and a motion for summary final decree. In due course summary final decree was entered against the appellant and, among other things, said decree contained the following:

"Ordered, adjudged and decreed that in respect of the Complaint as Amended the Court adheres to its Opinion and Order dated February 21, 1952 and for the reasons stated therein hereby enters a Summary Final Decree in favor of the defendant and against the plaintiff."

There can be no question that under Section 11, Article V of the Constitution and Section 73.01 et seq., F.S.A., the Circuit Court had exclusive jurisdiction of the original suit in eminent domain. The description of the property sufficient for identification, the estate or interest in the property sought to be acquired by the petitioner, parties, nonjoinder and misjoinder, and necessity for taking, were matters cognizable by and within the jurisdiction of the Circuit Court in the original eminent domain proceedings, and were determined by it. There was no appeal from the final judgment.

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62 So. 2d 897, 1953 Fla. LEXIS 2095, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carlor-co-v-city-of-miami-fla-1953.