Williams v. State Dept. of Transp.

579 So. 2d 226, 1991 WL 65355
CourtDistrict Court of Appeal of Florida
DecidedApril 29, 1991
Docket90-1624
StatusPublished
Cited by14 cases

This text of 579 So. 2d 226 (Williams v. 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
Williams v. State Dept. of Transp., 579 So. 2d 226, 1991 WL 65355 (Fla. Ct. App. 1991).

Opinion

579 So.2d 226 (1991)

Kenneth Leslie WILLIAMS and Betty J. Williams and Williams Communications, Appellants,
v.
STATE of Florida DEPARTMENT OF TRANSPORTATION, Appellee.

No. 90-1624.

District Court of Appeal of Florida, First District.

April 29, 1991.

*227 Will J. Richardson of Richardson Law Offices, P.A., Tallahassee, for appellants.

Thornton J. Williams, Gen. Counsel, and Thomas F. Capshew, Asst. Gen. Counsel, Florida Dept. of Transp., Tallahassee, for appellee.

ZEHMER, Judge.

Kenneth and Betty Williams and Williams Communications, Inc. (collectively referred to as Williams) appeal a final judgment entered pursuant to a jury verdict determining the amount of severance damages and business damages owed by the Department of Transportation to Williams for the Department's taking of their property. On this appeal, appellants seek a new trial on grounds that the trial court committed reversible error in: (1) denying their motion to strike the testimony of Presley, the Department's expert witness in real estate appraising, concerning Williams's damages; (2) overruling Williams's objections to the testimony of Biddle, the Department's expert in the electronics communications business, with regard to his evaluation of the Williams business and the effect the Department's proposed cures would have on that business; (3) denying their motions to strike testimony of the Department's witnesses that the proposed cures would comply with city and county codes and ordinances; (4) denying their requested jury instruction on business damages caused by the Department's proposed cures; and (5) denying their motion for a new trial on the ground that the Department's expert in civil engineering and site planning engineering, Varnum, *228 gave false and misleading testimony.[1] Finding error in several of these points, we reverse and remand for a new trial.

Williams Communications, Inc., is a paging and radio telecommunications business located on Tharpe Street in Tallahassee. As part of a project to widen Tharpe Street, the Department found it necessary to "take" a 20-foot-wide strip of the property on which the Williams business is located. The property in issue is located in front of the Williams business and has been used as a parking lot for Williams customers and employees.[2] Williams claimed business and severance damages resulting from the taking in this eminent domain action by the Department.[3] At trial, the Department presented four alternate "cost to cure" proposals in an attempt to mitigate the claimed business and severance damages. Each of these proposals involved replacing the lost parking spaces with new parking spaces on the remainder of the property. Williams presented one cost to cure proposal premised on the complete redevelopment of the remainder of the property to replace the lost parking. At the close of the trial, the jury returned a verdict assessing severance damages at $72,000, the amount the Department's expert real estate appraiser, Presley, testified would fully restore Williams, and assessing business damages at $42,840, the amount of expenses the parties agreed Williams would incur as a result of having to temporarily relocate the business during construction of one of the Department's cures. The trial court entered a final judgment in accordance with this verdict, and denied Williams's motion for a new trial.

We first address whether the trial court erred in denying Williams's motion to strike Presley's damages testimony on the ground that such testimony was based on an inaccurate interpretation of the law. In testifying for the Department as an expert in real estate appraising, Presley stated that the loss of the 20-foot-wide strip from the front of the Williams property would result in severance damages of $177,000 if nothing was done to correct the loss of parking problem. But a rear parking area could be placed on Williams's remaining property to replace the lost front parking, he opined, at a construction cost of approximately $24,000. The rear parking area would require usage of about 8,000 square feet of the property remainder, which equates to $48,000 for this land, based on a valuation of $6 a square foot. Thus, according to Presley, this cost to cure would be $72,000. He further stated that this or any of the Department's other three proposals would cure the severance damages on the parcel. He stated that he did not appraise any aspect of business damages but had taken into consideration "all effects" that the loss of the 20-foot-wide strip would have on the remainder of the property. In his opinion, all of the damages and effects to the remainder could be *229 cured by the payment of $72,000, which would "fully restore" Williams. Williams argues that Presley's damages testimony is based on an inaccurate interpretation of law as stated in Department of Transportation v. Byrd, 254 So.2d 836 (Fla. 1st DCA 1971), and thus the court erred in denying the motion to strike it.

Section 73.071(3), Florida Statutes (1989), authorizes an award of severance and business damages for a taking of less than the whole of business property. Severance damages and business damages are generally viewed as distinct and separate types of damages. "The cost of effecting physical changes or modifications in the premises necessitated by a taking are in the nature of damages to the remainder or severance damages ...," while business damages "are more in the nature of lost profits attributable to the reduced profit-making capacity of the business caused by a taking of a portion of the realty or improvements thereon." LeSuer v. State Road Department of Florida, 231 So.2d 265, 268 (Fla. 1st DCA 1970). Both severance damages and business damages may be recovered except when they are identical in nature, as double compensation is disallowed. Department of Transportation v. Ness Trailer Park, 489 So.2d 1172 (Fla. 4th DCA), rev. denied, 501 So.2d 1281 (Fla. 1986). This necessarily recognizes that both types of damages may be based to some extent on overlapping considerations.

In Department of Transportation v. Byrd, 254 So.2d 836 (Fla. 1st DCA 1971), this court affirmed a trial court's refusal to admit testimony of an appraiser to the effect that no severance damages were sustained by a motel owner as a result of the Department of Transportation's taking the motel's parking spaces because those parking spaces could be relocated on a portion of the remainder on which a shuffleboard court was then located. This court stated that the expert's opinion on damages and cure was properly excluded because it was based on a misconception of the law in that it ignored the reality of the missing shuffleboard court, ignored the reduction in value of a motel with smaller grounds for its guests to enjoy, and ignored the lesser area for expansion. The court concluded that the appraiser's testimony was impermissibly based on a premise that would require destruction by the property owners of property that is outside the area of taking as a means of theoretical mitigation of damages.

Applying these legal principles to Presley's opinion testimony, we conclude that it is similarly based on a misconception of the law.

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Bluebook (online)
579 So. 2d 226, 1991 WL 65355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-state-dept-of-transp-fladistctapp-1991.