Lynwood and Myrtle Viverette v. State of Florida Department of Transportation and Robert McCarthy

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
LYNWOOD AND MYRTLE NOT FINAL UNTIL TIME EXPIRES TO
VIVERETTE, FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellants,
v. CASE NO. 1D17-0618
STATE OF FLORIDA,
DEPARTMENT OF
TRANSPORTATION,
Appellee.
_____________________________/
Opinion filed October 6, 2017.
An appeal from the Circuit Court for Washington County.
Timothy Register, Judge.
Charles S. Stratton and Joshua S. Stratton of Broad and Cassel LLP, Tallahassee,
for Appellants.
Marc Peoples, Assistant General Counsel, Department of Transportation,
Tallahassee, for Appellee.
JAY, J.
Appellants, Lynwood and Myrtle Viverette, challenge an order granting a
petition filed by the Department of Transportation (“the Department”) to condemn
a portion of their property through eminent domain. Appellants raise two issues for
our consideration. We find only one has merit. The Department’s petition was
defective because the authorizing resolution attached to the petition referenced out-
of-date right-of-way maps that did not reflect the parcel of appellants’ land the
Department sought to condemn. Due to this defect in the petition, we reverse.
I. Facts
In February 2016, the Department filed a petition to condemn a portion of
appellants’ property referred to as parcel 121. The Department attached to its
petition a “project resolution” and a “parcel resolution.” The project resolution
authorized a road-widening project. It stated that the Department had prepared
right-of-way maps reflecting the project, which were “adopted as the official Right
of Way maps” for the project. The project resolution was dated December 2014.
Also attached to the petition was a parcel resolution, which listed the specific
parcels of land the Department deemed necessary for the completion of the project,
including parcel 121.
The circuit court denied the petition, finding the Department failed to show
that it needed to condemn the entirety of parcel 121. Therefore, in November 2016,
the Department filed a second petition seeking to condemn a smaller portion of
appellants’ property, referenced as parcel 121R. The second petition attached an
updated parcel resolution reflecting parcel 121R, but retained, as an additional
attachment, the original 2014 project resolution.
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Appellants argued that the second petition was also defective because the
Department attached the 2014 project resolution, which adopted the now out-of-
date right-of-way maps reflecting parcel 121, not parcel 121R. They argued the
Department should have attached an updated project resolution adopting the
current right-of-way maps. The trial court rejected this argument and granted the
petition.
II. Analysis
The Florida Constitution prohibits the taking of private property “except for
a public purpose and with full compensation.” Art. X, § 6(a), Fla. Const. Section
73.021, Florida Statutes (2016), provides in pertinent part:
Those having the right to exercise the power of eminent domain
may file a petition . . . which . . . shall set forth:
(1) The authority under which and the public use or purpose for
which the property is to be acquired, and that the property is necessary
for that public use or purpose; [and]
(2) A description identifying the property sought to be acquired
....
Section 73.021 “must be strictly construed in favor of the landowner and . . .
substantial compliance with its provisions is required to sustain a petition for
condemnation” because eminent domain “‘is one of the most harsh proceedings
known to the law.’” Tosohatchee Game Preserve, Inc. v. Cent. & S. Fla. Flood
Control Dist., 265 So. 2d 681, 683 (Fla. 1972) (quoting P[e]avy-Wilson Lumber
Co. v. Brevard Cty., 31 So. 2d 483 (1947)). “Nothing short of a petition which
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adheres to the statutory guidelines will commence condemnation proceedings
under chapter 73.” Dep’t of Envtl. Prot. v. Gibbins, 696 So. 2d 888, 890 (Fla. 5th
DCA 1997).
In Tosohatchee, the Florida Supreme Court interpreted section 73.021 as
requiring that “a petition in condemnation must be accompanied by an authorizing
resolution (where one is required) adopted prior to the initiation of eminent domain
proceedings.” 265 So. 2d at 684. The supreme court reasoned that “[t]o permit the
condemning authority to adopt a resolution authorizing condemnation after
initiating proceedings in court would, in our view, frustrate the purpose intended to
be served by orderly procedure in an eminent domain action.” Id. “If an agency
cannot condemn without first resolving to do so through its governing board, it is
the height of frivolity for such agency to initiate court action against the landowner
before adoption of an authorizing resolution. No other purpose than harassment is
served by such a practice.” Id.
As part of the Tosohatchee analysis, a trial court is “required to consider
any exhibit attached to, or incorporated” into a condemning authority’s petition.
Bott v. City of Marathon, 949 So. 2d 295, 296 (Fla. 3d DCA 2007). Any attached
exhibit is controlling, and if the allegations of the petition are contradicted by the
exhibit, the “plain meaning” of the exhibit prevails. Ginsberg v. Lennar Fla.
Holdings, Inc., 645 So. 2d 490, 494 (Fla. 3d DCA 1994). Stated another way, any
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inconsistency between the pleading and the attached exhibit has the effect of
“neutralizing” the allegations of the petition, rendering the pleading deficient.
Harry Pepper & Assoc., Inc. v. Lasseter, 247 So. 2d 736, 736-37 (Fla. 3d DCA
1971).
Because the 2014 project resolution was attached to the Department’s
second petition, the resolution became an integral part of the pleading “for all
purposes.” See Fladell v. Palm Beach Cty. Canvassing Bd., 772 So. 2d 1240, 1242
(Fla. 2000). The project resolution adopted the original right-of-way maps, which
were outdated and did not reflect the portion of appellants’ land the Department
currently seeks to condemn. Because “[a] defective petition will not allow a
landowner’s property to be taken,” City of Ocala v. Red Oak Farm, Inc., 636 So.
2d 81, 83 (Fla. 5th DCA 1994), and because the 2014 resolution could not
authorize the acquisition of a parcel that was not drawn up until 2016, the
Department’s petition should have been dismissed.
We next consider the connected question of whether the Department can
cure the pleading defect by requesting leave to file an amended petition or whether
the pleading requirements of section 73.021 are jurisdictional. If the latter were
true, the trial court would be divested of jurisdiction to entertain a motion to amend
after the dismissal of the Department’s second petition. Our answer to this question
is guided by two key decisions.
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Florida Power & Light Co. v. Canal Authority, 423 So. 2d 421 (Fla. 5th
DCA 1982), involved an appeal from the denial of a motion for relief from
judgment that contested condemnation judgments, which had been entered over a
decade before. Id. at 422. The motion for relief alleged that because the
condemnation petitions did not attach the authorizing resolutions, the trial court
lacked subject matter jurisdiction over the petitions, thereby invalidating the
judgments. Id.
In affirming the denial of the motion for relief, the Fifth District
emphasized that “the test for whether a pleading sufficiently [invokes] the
jurisdiction of a court is not as stringent as the test as to whether . . . the pleading is
subject to a motion to dismiss for failure to state a cause of action.” Id. at 425
(citing Lovett v. Lovett, 112 So. 768, 775-76 (Fla. 1927)). As a result, “[e]ven if . .
. the failure of the condemning authority to attach resolutions to their petitions for
condemnation made those petitions subject to motions to dismiss, such deficiencies
in the pleading invoking the jurisdiction of the trial court did not deprive the court
of jurisdiction.” Id. (footnotes omitted) (emphasis added). Instead, “the trial court .
. . being the circuit court, had subject-matter jurisdiction over the class of cases
known as condemnation suits.” Id.
Later, in Cunningham v. Standard Guaranty Insurance Co., 630 So. 2d 179
(Fla. 1994), the Florida Supreme Court reaffirmed the principle that subject matter
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jurisdiction is the “‘power lawfully conferred to deal with the general subject
involved in the action’” and “‘does not depend upon the ultimate existence of a
good cause of action in the plaintiff, in the particular case before the court.’” Id. at
181 (quoting Malone v. Meres, 109 So. 677, 683 (1926)). Stated differently, “[i]t is
the power to adjudge concerning the general question involved, and is not
dependent upon the state of facts which may appear in a particular case.” Id.
(citation and internal quotations marks omitted).
In finding that the circuit court in Cunningham had jurisdiction over bad
faith claims against insurance companies, the supreme court relied on Florida
Power’s holding that “‘deficiencies in the pleading invoking the jurisdiction of the
trial court [do] not deprive the court of jurisdiction.’” 630 So. 2d at 181 (quoting
Fla. Power, 423 So. 2d at 425). In doing so, it specifically referenced the fact that
the condemning authority in Florida Power failed to attach the authorizing
resolutions to its petitions and recognized that this failure was the basis for the
claim that the trial court lacked subject matter jurisdiction when it entered the
condemnation judgments. Id. at 181. As a result, we believe it is clear that
Cunningham approved Florida Power’s conclusion that pleading deficiencies in a
condemning authority’s petition do not revoke the circuit court’s subject matter
jurisdiction “‘over the class of cases known as condemnation suits.’” Id.; see Hon.
Scott Stephens, Florida’s Third Species of Jurisdiction, 82 Fla. Bar J. 11, 19-20
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(March 2008) (“The Supreme Court [in Cunningham] perceived that the district
courts had strayed from the actual meaning of subject matter jurisdiction and
approvingly cited Florida Power and Light for the proposition that ‘deficiencies in
the pleading invoking the jurisdiction of the trial court did not deprive the court of
jurisdiction.’”); see also Paulucci v. Gen. Dynamics Corp., 842 So. 2d 797, 801 n.3
(Fla. 2003) (holding “[s]ubject matter jurisdiction ‘means no more than the power
lawfully existing to hear and determine a cause,’” quoting Cunningham, 630 So. 2d
at 181)); In re Adoption of D.P.P., 158 So. 3d 633, 636-37 (Fla. 5th DCA 2014)
(“[A] challenge to subject matter jurisdiction is proper only when the court lacks
authority to hear a class of cases, rather than when it simply lacks authority to
grant the relief requested in a particular case.”).
Based on Cunningham, we hold that the pleading requirements of section
73.021 are not jurisdictional insofar as a pleading defect does not deprive the trial
court of subject matter jurisdiction to entertain a motion to amend to cure the
deficiency. To the extent that this Court held to the contrary in Gulf Power Co. v.
Stack, 296 So. 2d 572 (Fla. 1st DCA 1974), we conclude Stack is inconsistent
with, and effectively overruled by, the supreme court’s decision in Cunningham.
Accordingly, we reverse the Order of Taking and remand with instructions that the
trial court dismiss the petition without prejudice to the Department’s seeking leave
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to file an amended petition, thereby allowing the Department to potentially cure the
pleading defect under section 73.021.
REVERSED and REMANDED.
ROWE, J., and GRIFFIS III, STANLEY H., ASSOCIATE JUDGE, CONCUR.
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