Malone v. DIV. OF ADMIN., STATE, DEPT. OF TRANSP.

438 So. 2d 857
CourtDistrict Court of Appeal of Florida
DecidedSeptember 6, 1983
Docket81-1840
StatusPublished
Cited by9 cases

This text of 438 So. 2d 857 (Malone v. DIV. OF ADMIN., STATE, DEPT. OF TRANSP.) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Malone v. DIV. OF ADMIN., STATE, DEPT. OF TRANSP., 438 So. 2d 857 (Fla. Ct. App. 1983).

Opinion

438 So.2d 857 (1983)

Harry MALONE and Vonice Malone, His Wife, D/B/a Acme Processors, Inc., Appellants,
v.
DIVISION OF ADMINISTRATION, STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.

No. 81-1840.

District Court of Appeal of Florida, Third District.

September 6, 1983.
Rehearing Denied November 2, 1983.

*859 Brigham, Reynolds, Moore, Muire & Gaylord and Toby Prince Brigham, Miami, for appellants.

Margaret-Ray Kemper and Alan E. DeSerio, Tallahassee, for appellee.

Before HUBBART, NESBITT and BASKIN, JJ.

NESBITT, Judge.

This appeal arises from an eminent domain proceeding in which the trial court ordered a partial new trial. We have jurisdiction. Fla.R.App.P. 9.110(a)(3).

The Malones owned a parcel of land adjacent to State Road 25 in Dade County. They had constructed thereon a processing plant which converted waste cooking grease into an ingredient used in animal feed. The state Department of Transportation (DOT) condemned the entire ownership for purposes of expanding the road. DOT agreed that the Malones could move their facility to a new site and the parties stipulated as to what items at the old site would be removed.

At trial, the issue of property valuation was bifurcated with separate compensation to be alloted for the movable items and for the remainder of the condemned property. The jury award for the latter, comprising the real property, the shell of the factory building and certain immovables, was $53,690. Concerning the former, an expert was permitted to testify as to the costs involved in relocating the Malones' plant and in putting it back into operation. The jury awarded $170,155 for moving expenses. DOT filed a motion for new trial claiming, inter alia, that the issue of moving costs was improperly presented to the jury. The trial court granted a new trial solely on the issue of moving expenses. The Malones appealed.

Our inquiry begins with Article X, Section 6(a) of the Florida Constitution which provides:

No private property shall be taken except for a public purpose and with full compensation therefor. .. .

Both parties, being aware of Jacksonville Expressway Authority v. Henry G. Du Pree Co., 108 So.2d 289 (Fla. 1958), agree that full *860 compensation contemplates moving costs, but the parties diverge in their suggested applications of Du Pree to the present case. The Malones urge that moving costs include every expense involved in moving their plant to a new location and in making it functional again. These expenses, which are detailed later in this opinion, run from fees for real estate agents to search for a suitable new site to alterations needed to conform the plant to new safety and pollution standards. DOT takes a much more restrictive view of moving costs, as did the trial court after the new trial motion was argued. DOT contends that moving costs involve only the actual expense of physically moving property from one location to another and do not even contemplate costs of reassembly. The parties spent a significant portion of their briefs and oral argument attempting to interpret Du Pree to favor their respective views, but an examination of that case demonstrates that it is not particularly helpful to deciding the one sub judice.

In DuPree, the condemnee received a $110,000 award, including $6,000 for the reasonable cost of moving equipment and supplies to a new location. The equipment and supplies in Du Pree were personal property of the condemnee which could be removed to a new site without any loss in value. Permitting costs for their removal had nothing to do with their valuation. The present case, on the other hand, involves a maze of machinery, part of which was trade fixtures,[1] and the rest of which was so completely integrated as to constitute a single functional unit. To merely take this factory apart and deposit it in another location would nearly destroy its value, especially since it served a unique purpose when assembled.

Although the question is novel in Florida, several other jurisdictions have been faced with the problems that arise from condemnation of properties containing trade fixtures or functional units worth much while in place but worth little when disassembled. These jurisdictions all recognize that in such situations the condemnee must be compensated for the machinery involved in the taking. State v. Gallant, 42 N.J. 583, 202 A.2d 401 (1964); Housing Authority of the Borough of Clementon v. Myers, 115 N.J. Super. 467, 280 A.2d 216 (1971); Rose v. State, 24 N.Y.2d 80, 246 N.E.2d 735, 298 N.Y.S.2d 968 (1969); Schnaible v. City of Bismarck, 275 N.W.2d 859 (N.D. 1979); Gottus v. Redevelopment Authority of Allegheny County, 425 Pa. 584. 229 A.2d 869 (1967). Ordinarily when, as here, the machinery is removed, the amount allowed is the difference between the value of the machinery in place and its salvage value, but in the alternative, the cost of disassembling, trucking and reassembling the machinery may be calculated. When the latter method is used, the amount actually awarded should not exceed the valuation reached under the first method, Housing Authority of the Borough of Clementon v. Myers, 280 A.2d at 223; Rose v. State, 298 N.Y.S.2d at 976, 246 N.E.2d at 740; Schnaible v. City of Bismarck, 275 N.W.2d at 866, the rationale being that the condemnee should not be compensated in a greater amount than the value of the property condemned. We adopt the reasoning of these foreign cases. Thus, a remand is necessary and the jury must be presented with evidence of the value of the Malones' machinery in place as well as its salvage value in order to calculate the upper limit beyond which an award for moving expenses may not rise.

Of course, this disposition does not relieve us of the responsibility of determining whether the moving expense computation itself was based upon proper evidence. That issue was the focus of DOT's new trial motion.

The only testimony on the issue of moving expenses was that of the Malones' expert, Ivan Butler. Mr. Butler testified as to the anticipated total cost of the Malones' *861 relocation based on six cost items. Certain of the costs had already been incurred because the Malones' plant had been dismantled and at least partially trucked away. The remainder were estimated by Butler. His estimates were derived from detailed examinations of the plant while it was functioning, bids received for work to be done and his extensive experience in moving and valuing the cost of moving other industrial plants. His qualifications in this last regard were unassailed and indeed unassailable.

DOT, again relying on DuPree, supra, at 292, argues that the moving costs were speculative because not "definitely ascertained" and that the condemnee's burden of moving costs cannot be proved by mere speculative testimony. In the alternative, DOT argues that the expert's evaluations should have been based on costs as they existed at the time of the taking and not at the time that the costs were or would be incurred.

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438 So. 2d 857, Counsel Stack Legal Research, https://law.counselstack.com/opinion/malone-v-div-of-admin-state-dept-of-transp-fladistctapp-1983.