Florida/Georgia Personal Injury & Workers Compensation

...(2004) (“In any eminent domain action, properly instituted by and in the name of ... the Department of Transportation ..., the petitioner may avail itself of the provisions of this chapter to take possession and title in advance of the entry of final judgment.” (emphasis supplied)). Pursuant to section 74.051(2) and a stipulated order of taking entered on July 13, 2004, FDOT deposited into the circuit-court registry a good-faith estimate of the “full compensation” due to System Components under article X, section 6 of the Florida Consti...

...Respondent is a city possessing the right of eminent domain. The City, by the usual steps, undertook to condemn petitioners' land to include a Declaration and Order of Taking. In due course the City deposited the required monies into the registry of the court as provided by Section 74.051, F.S....

...Using the procedures found there, we notice that the court may determine that the condemnor is entitled to possession prior to final judgment and the amount of a deposit to be made by the condemnor to preliminarily indemnify the land owners is determined. See Section 74.051, F.S....

...*866 Ronald Sales and Ronald E. Jones, West Palm Beach, for petitioners. C. Ray Greene, Jr., Jacksonville, for respondent. DREW, Justice. Petitioners in this case were defendants in an eminent domain proceeding in the circuit court under F.S. Chapter 73 and Section 74.051, F.S.A....

...ctly involved." [8] The opinion of the district court in this cause states a classic case for the exercise of discretionary certiorari jurisdiction to resolve the issue of statutory validity at the time of entry of an order of taking under F.S. Sec. 74.051, F.S.A....

...Petitioner's remaining contentions are without merit, and the writ should accordingly be discharged. It is so ordered. ROBERTS, ERVIN and ADAMS, JJ., and WALKER and POPPER, Circuit Judges, concur. CALDWELL, C.J., concurs in judgment only. NOTES [1] "74.051 Hearing on order of taking....

...The allegations of the instant petition failed to meet the requirements of Section 73.021 and failed to set forth the facts necessary for the trial judge to determine whether petitioner is properly exercising its delegated authority prior to entering the order of taking as required by Section 74.051....

...[3] Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145 (1938). [4] Ibid.; Osceola County v. Triple E Development Co., 90 So.2d 600 (Fla. 1956). [5] Demeter Land Co. v. Florida Public Service Co., 99 Fla. 954, 128 So. 402 (1930). [6] Section 74.051, Florida Statutes, F.S.A....

...Concurrently, the Utility sought possession in advance of judgment as provided for by Fla. Stat. § 74.011, F.S.A.; a Declaration of Taking was filed pursuant to Fla. Stat. § 74.031, F.S.A. Hearings on the Declaration were entertained by the Circuit Court, Dade County, in accord with Fla. Stat. § 74.051, F.S.A., and subsequently, by Order of that Court, upon payment of proper deposit, title of the condemned land vested in the Utility under Fla....

...rida Statutes, the taking in this case occurred when Florida Power Corporation first actually used the plaintiff's property without the plaintiff's consent and not when the plaintiff surrendered possession under an order of taking issued pursuant to Section 74.051, Florida Statutes....

...The statutes did not require the county clerks to invest the funds and appropriate the interest; the statutes only authorized the clerks to do so. Consequently, each clerk who elected to collect interest assumed the risk that these statutes would ultimately be found unconstitutional. Moreover, when section 74.051 became effective in 1965, at least one state's highest court had already found a similar statute to violate the federal Constitution....

...he parcel taken. The mortgagee was not served with a copy of that motion nor was he given any notice of hearing on that motion. At the hearing the trial judge granted the request for quick taking and directed the condemning authority, as required by Section 74.051(2), to deposit the sum of $62,600 into the registry of the court....

...Furthermore, as the mortgagors point out, had the funds not been withdrawn by the mortgagors, but left on deposit in the registry of the court, the mortgagee would not have been entitled to interest earned on the deposit. Any such interest must be credited to the secondary road fund of the county as provided in Section 74.051(3)....

...ty for him to be heard. Thereafter, when the city's petition to condemn is filed in court, nothing concerning the city's decision-making power is at issue (except fraud or bad faith which must be proven by the landowner) inasmuch as, Florida Statute 74.051(1) F.S.A....

...ble. We think that the Florida procedure as outlined within the challenged statutes does provide a landowner with adequate notice and an opportunity to be heard at a meaningful time and in a meaningful manner. A reading of Florida Statutes, Sections 74.051 and 74.061, F.S.A., clearly reveals that a property owner is afforded notice and a hearing prior to an order of taking and prior to the time when either possession or title may vest in the condemning authority. Florida Statute § 74.051(1) F.S.A., entitled "Hearing on order of taking," provides: "(1) On the date specified in the notice of hearing, all parties may appear and be heard on all matters properly before the court which must be determined prior to the entry of the...

...e property encumbered by the mortgage is taken by eminent domain proceedings. The trial court held that the mortgagee was entitled to his prepayment penalty from the funds on deposit in the registry of the court, pursuant to an order of taking under § 74.051, Fla....

...If the court determines that the petitioner is entitled to the possession of the land prior to final judgment, it will enter an order requiring the petitioner to deposit in the registry of the court a sum not less than the amount of the good-faith estimate of value. § 74.051, Fla....

...filed an answer setting up six affirmative defenses including the defense of prior public use, namely, that the property sought to be condemned was necessary for the successful operation of the railroad. The trial court thereafter held an extensive eight day hearing under Section 74.051, Florida Statutes (1977), on the propriety of the taking herein at which testimony and argument of the parties were received....

...plemental proceeding, in advance of final judgment in the main proceeding. A sum of money double the value of the utility's estimate of the land in issue was deposited by the utility in the court registry, as ordered by the Circuit Court pursuant to Section 74.051(2)....

...mmissions or poundage." *262 The foregoing statute clearly forbade the exaction of a commission on any sum paid into the court registry pursuant to the "quick taking" provisions of Chapter 74, Florida Statutes. But in 1967, after the Burch decision, Section 74.051(3) was amended by Chapter 67-370, Laws of Florida, [4] to prohibit the exaction of a clerk's commission on "quick taking" sums "refunded to the petitioner" rather than on all "quick taking" sums "paid into the registry." Circuit Court...

...n a Chapter 74 proceeding except for those refunded to the eminent domain petitioner, and, therefore, it was proper to exact a commission on that portion of the utility's deposit disbursed to the defendants. The District Court held otherwise because Section 74.051(3) had been amended a second time to authorize Clerks to invest "quick taking" deposits and to provide that the interest from such investments be credited to the county secondary road fund....

...The Court reasoned that since the second amendment allowed Clerks to receive income from monies on "quick taking" deposits and since this amendment occurred in 1967, the same year as the first amendment, "... the legislative intent in changing the language of Fla. Stat. § 74.051(3) was to allow the clerk of the court to make investments and not to authorize the collection of commissions." 335 So.2d at 350....

...Among the services to be charged is the receipt of money into the registry of the Court. [5] Since the language of the statute is mandatory, "The Clerk of the Circuit Court shall make the following charges for services rendered by his office," (emphasis ours) any exception to the statute should be clear. Section 74.051(3), Florida Statutes, upon which the utility pins its refusal to pay the commission does not except "quick taking" sums disbursed to eminent domain defendants from deposits received in the court registry....

...Second, the "investment" amendment was not enacted in the same year as the amendment which narrowed the exception to the Clerk's charge. The latter amendment was enacted in 1967, Chapter 67-370, Laws of Florida, while the former amendment was not enacted until three years later in 1970. Chapter 70-365, Laws of Florida. Section 74.051(3) by its plain language does not except from Clerk charges funds disbursed to defendants....

..." a commission on those "quick taking" monies deposited in the registry which are disbursed to the landowner. Exaction of a commission on the monies deposited in the "quick taking" proceeding that are refunded to the taker is clearly in violation of Section 74.051(3), Florida Statutes, and, of course, is forbidden....

...[T]he trial court enters an order allowing the taking and directing the petitioner “to deposit in the registry of the court such sum of money as will fully secure and fully compensate the persons entitled to compensation as ultimately determined by the final judgment.” § 74.051(2)....

...stry of the court. The funds were deposited on August 30, 2007, and released to Mallards Cove, net of property taxes, on September 13, 2007. While the funds were on deposit in the court registry, the Clerk elected to invest the funds as permitted by section 74.051(4), 3 which stated in pertinent part: “The clerk is authorized to invest such deposits so as to earn the highest interest obtainable under the circumstances in state or national financial institutions in Florida insured by the Federal Government....

...Ninety percent of the interest earned shall be paid to the petitioner.” 4 The Clerk earned investment interest on the deposit in the amount of $4396.49, and subsequently transferred ninety percent of that sum to the Department and retained ten percent, as provided by section 74.051(4)....

...n amount of “full, just and reasonable compensation” for the property. 5 No appeal was taken in that case, and Mallards Cove does not challenge that taking here. In 2009, Mallards Cove initiated the case now on appeal, seeking a declaration that section 74.051(4) of the quick-take eminent domain statute is unconstitutional in that it directs clerks to pay ninety percent of interest earned on the quick-take deposit funds to the condemning authority and asserting a claim of inverse condemnatio...

...h this opinion. Reversed and remanded. KELLY and BLACK, JJ., Concur. . We refer to Mallards Cove throughout as the purported class representative. . Chapter 74, Florida Statutes (2007).. . At the time the funds were invested the statute at issue was section 74.051(3). The statute was renumbered in 2008, but the operative language is identical. Throughout this opinion, -the statutory reference will be to section 74.051(4). .The last sentence of section 74.051(4) has since been amended, effective July 1, 2013, to provide: "Ninety percent of the interest earned shall be allocated in accordance with the ultimate ownership in the deposit.” See ch....

...Florida Water next argues that the Utilities Commission was required to amend its declaration of taking to reflect the changes in its estimate of value. A property owner is entitled to a hearing to challenge any aspect of the declaration of taking, including the amount to be deposited in the court registry for the property. § 74.051, Fla....

...efore the court. [3] Id. Rather, the amount of the deposit represents the trial court's judgment of the amount necessary to fully compensate the property owner based on the evidence presented, subject to a final determination by a jury at trial. See § 74.051(2), Fla....

...ets are situated and other miscellaneous components that comprise the entire system. [2] The statute does not define the term "valid appraisal." [3] However, the amount of the deposit cannot be less than the condemning authority's estimate of value. § 74.051(2), Fla....

property should vest in the power company. Fla. Stat. § 74-051, F.S.A. The Petition for Writ of Certiorari is

...n of the Landlord, shall forthwith terminate and the Tenant shall have no claim or interest in or to any award of damages for such taking. On May 11, 1994, the County made its good faith deposit of its estimate of the value of the taking pursuant to section 74.051(2), Florida Statutes (1993)....

...After service on the defendants in the condemnation action, if a defendant requests a hearing, the court may determine, among other matters, whether the department is properly exercising its delegated authority and determine whether the amount to be deposited is a good faith estimate of value of the property to be taken. See § 74.051(2), Fla....

...If and when the court determines that the petitioner is entitled to possession prior to final judgment, deposit must be made into the registry of the court of a sum, not less than the good faith estimate mentioned, representing full recompense for the taking. § 74.051, Fla....

...ht to take land for the construction of a reinforced masonry vault or chamber, the purpose of which would be to remove methane and hydrogen sulfide gas and air which might collect in the pipeline and create a possible air lock. Pursuant to F.S.1967, section 74.051, F.S....

...main proceeding filed by the School Board against Lurline S. Bow-ein and others. Upon the entry of the order of taking in the eminent domain proceeding, the School Board made the required good faith deposit into the court registry in accordance with section 74.051(2), Florida Statutes (2005). The Clerk received the deposit and invested the funds to earn interest. Section 74.051(3) specifically authorized the Clerk to invest the funds. Section 74.051(B) provides, in pertinent part, as follows: The clerk is authorized to invest such deposits so as to earn the highest interest obtainable under the circumstances in state or national financial institutions in Florida insured by the Federal Government....

...receipt of them in his capacity as the Clerk of the Circuit Court of Collier County. The Clerk also alleged, in pertinent part, as follows: 3.The School Board is a governmental body that possesses the power of eminent domain, and, which, pursuant to Section 74.051( [3]), F.S., is entitled to ninety percent (90%) of the investment interest monies currently held in the registry of the court in the Quick Taking Case as to Parcel “A,” and has previously made claim to said monies and may claim so...

...Bowein also sought recovery of additional amounts of interest held by the Clerk on behalf of a class defined as follows: [A]ll property owners who were originally defendants in eminent domain cases brought pursuant to Chapters 73 and 74, Fla. Stat.[,] in Collier County, Florida, where a registry deposit was made pursuant to Section 74.051(4), Fla....

...Bowein’s alternative request for the consolidation of the Clerk’s interpleader action with the putative class action. Reversed and remanded. NORTHCUTT and DAVIS, JJ., Concur. . The quoted portion of the statute now appears in subsection (4) of section 74.051....

...Where a hearing is requested on the petition for eminent domain, the *1081 trial court may, prior to the entry of the final judgment, enter an order of taking requiring the respondents to surrender possession provided the petitioner deposits the estimated value of the property into the court's registry. See § 74.051, Fla....

...The allegations of the instant petition failed to meet the requirements of Section 73.021 and failed to set forth the facts necessary for the trial judge to determine whether petitioner is properly exercising its delegated authority prior to entering the order of taking as required by Section 74.051.” As quoted above, another provision of Section 73.021, Florida Statutes, F.S.A., requires that a petition in condemnation “shall set forth,” among other things, “The estate or interest which the petitioner intends to acquire....

surrender possession of the property to the condemnor. § 74.051(3), Fla.Stat. (1983). The condemnee who owns the

...On or about 24 August 1970 the State of Florida through the Department of Transportation acquired by eminent domain 9.905 acres which were subject to the option agreement. To accomplish the taking of the 9.905 acres before final judgment, the State paid into the registry of the court in accordance with § 74.051, F.S.1969, F.S.A., $181,692.00....

...y needed to widen a road. After a hearing, the trial court entered a written order of quick-taking and directed the County to deposit a good-faith estimate of the value of the property into the registry of the court within 20 days, as is required by section 74.051(3) of the Florida Statutes (2005)....

...was entered (and thus five days late). On the same day that the deposit was made by the County, the landowners filed *21 a motion to vacate the trial court’s quick-take order. The motion argued that, pursuant to the specific language set forth in section 74.051(3) of the Florida Statutes, the County’s failure to timely make the deposit voided the trial court’s quick-take order....

...Here, the County proceeded with its eminent domain claim against the landowners pursuant to the quick-take provisions set forth in Chapter 74 of the Florida Statutes. Said provisions authorize the County to take possession and title to real property in advance of the entry of a final eminent domain judgment. Section 74.051(3) states that a quick-take order “shall not become effective unless the deposit of the required sum is made in the registry of the court” and that, if “the deposit is not made within 20.days from the date of the order of taking, the order shall be void and of no further effect.” § 74.051(3), Fla. Stat. (2005). Here, the trial court erred in reinstating its quick-take order because the evidence was undisputed that the County failed to timely deposit its good-faith estimate and, thus, pursuant to the express language of section 74.051(3), the court’s quick-take order was rendered “void and of no further effect”....

...5th DCA 2005). The landowners argue that, since the trial court’s quick-take order is a nullity, it necessarily follows that the entire proceeding below was void and, therefore, the trial court must dismiss the County’s eminent domain petition. We disagree. Section 74.051(3) of the Florida Statutes, expressly states that an untimely deposit of good-faith funds results in a quick-take order that is void....

...f good-faith funds results in “the *22 proceeding” being “null and void”. Since the Legislature specifically opted to use the word “order,” not “proceeding”, in its quick-take statute, it would be improper for this court to interpret section 74.051 broadly so as to void the entire proceeding below....

...Jurisdiction is proper pursuant to rule 9.130(a)(3)(C)(ii) of the Florida Rules of Appellate Procedure which authorizes review of orders determining the right to immediate possession of property. See Security Management Corp. v. State, Dept. of Transp., 718 So.2d 339 (Fla. 4th DCA 1998). . Section 74.051(3) of the Florida Statutes (2005) provides: 74.051....

taking” proceedings under section 74.051(3). However, reasoning that section 74.051(3) created a clear exception

...full compensation under Article X, section 6(a) of the Florida Constitution. In the case on appeal, which was filed in 2011, Mr. Livingston argues that the funds placed on deposit with the Clerk during the eminent domain proceedings pursuant to section 74.051, Florida Statutes (2007), became his property when title to the real property vested in the City pursuant to section 74.061....

...itioner "to deposit in the registry -3- of the court such sum of money as will fully secure and fully compensate the persons entitled to compensation as ultimately determined by the final judgment." § 74.051(2). Upon making the deposit, the petitioner is vested with title and takes possession of the property and, in exchange, the right to full compensation for the property vests in the property owner....

...chapter 74, the City deposited funds into the court's registry, representing its good faith estimate of the value of each parcel. The Clerk chose to deposit these quick-take deposit funds into an interest bearing account, as was the Clerk's sole prerogative pursuant to section 74.051(4). Section 74.051(4) stated in pertinent part: "The clerk is authorized to invest such deposits so as to earn the highest interest obtainable under the circumstances in state or national financial institutions in Florida insured by the Federal Government....

...ated orders of taking and disbursement of funds, the Clerk distributed a portion of the deposit funds to the county tax collector for unpaid ad valorem taxes due on Mr. Livingston's parcels and disbursed the The last sentence of section 74.051(4) has since been amended, 3 effective July 1, 2013, to provide: "Ninety percent of the interest earned shall be allocated in accordance with the ultimate ownership in the deposit." See ch....

...13-23, §§ 1, 2, at 220-21, Laws of Fla. -4- remaining principal to the trust account of Mr. Livingston's lawyer. The Clerk retained ten percent of the interest earned on the deposit funds as authorized by section 28.33, Florida Statutes (2007), and section 74.051(4), and transferred the remaining ninety percent of the earned interest to the City, as authorized by section 74.051(4). Mr....

...Thus, he further argued, the Clerk and the City had jointly and severally committed a per se taking of his private property and must therefore disgorge all investment interest.5 The first count of Mr. Livingston's complaint sought a declaration that the portion of section 74.051(4) directing the Clerk to pay the condemning authority ninety percent of all interest earned on quick-take deposit funds constituted a taking of private property in violation of the Takings Clause of the United States and Florida Co...

...Livingston's argument that a second taking resulted from the Clerk's investment of the quick-take deposit funds and the payment of that investment interest to the City, entitling Mr. Livingston to full compensation under the Takings Clause. The provision in section 74.051(4) directing payment of interest to the -9- condemning authority could be a taking under the Takings Clause of the two constitutions or a matter of inverse condemnation only if the deposit belonged to Mr. Livingston at the time the interest accrued....

cannot collect such a commission. Florida Statutes § 74.051 (1965) provided in part that: “. . . [N]o sum

City’s declaration of taking filed pursuant to section 74.051, Florida Statutes (1977), FEC contended that

of the circuit court investing such moneys. Section 74.051 is not repealed by implication by the provisions

landowners.” The appellees also point out that Section 74.051, subdivision (1), Florida Statutes, F.S.A.

receiving money into the registry of the court. Section 74.051(2), F.S., specifically provides, among other

...The statutes did not require the county clerks to invest the funds and appropriate the interest; the statutes only authorized the clerks to do so. Consequently, each clerk who elected to collect interest assumed the risk that these statutes would ultimately be found unconstitutional. Moreover, when section 74.051 became effective in 1965, at least one state’s highest court had already found a similar statute to violate the federal Constitution....

...(1995). If the court decides that the condemning authority is entitled to possession of the land before final judgment, it will order the condemning authority to deposit a sum not less than the good faith estimate of value into the court registry. § 74.051....

...The taking would result in Mr. Ward retaining 3.78 acres near this intersection, 3.39 acres of which Mr. Ward could develop. The County initially deposited $221,500 into the registry of the court based upon its estimate of the value of the land taken. See § 74.051(2), .061, Fla....

...Kirehhoff filed his petition for writ of prohibition. It is clear the trial court departed from the essential requirements of the law when it failed to allow Mr. Kirehhoff to be heard on the ■ petition for taking. Because SFWMD named Mr. Kirehhoff as a defendant, he was entitled to certain rights. Section 74.051(1), Florida Statutes (2000), states: If a defendant requests a hearing pursuant to s....

...prior to the entry of the order of taking, including the jurisdiction of the court, the sufficiency of the pleadings ... and the amount to be deposited for the property sought to be appropriated. The trial court did not adhere to the requirements of section 74.051....

...cock in Polk County. The Sheas did not accept the offer and in August 2009, the District filed its eminent domain petition to take the Sheas’ property. The Sheas objected to the District’s order of *584 taking and requested a hearing pursuant to section 74.051, Florida Statutes (2009)....

WIGGINTON, Acting Chief Judge. Petitioners seek review by certiorari of an interlocutory order entered in an eminent domain proceeding which denied their motion to dismiss the action on the grounds (1) that F.S. Section 74.051, F.S.A., authorizing the entry of an order or judgment based upon a declaration of taking is unconstitutional; (2) that the complaint is insufficient because of a failure to attach thereto as exhibits certain items of proof deemed by p...

...ss for the purpose of establishing facts alleged by them to show fraud or bad faith in the institution of this action. Since the principal point raised by the petition for certiorari challenges the correctness of the trial court’s ruling that F.S. Section 74.051, F.S.A., authorizing the entry *842 of judgment on declaration of taking, is constitutional and valid, this action was first commenced in the Supreme Court of Florida....