Opinion
No. 340.
September 14, 1966. Rehearings Denied December 2, 1966.
Appeal from the Circuit Court for Broward County, Ted Cabot, J.
P.A. Pacyna and V. Carroll Webb, Tallahassee, for appellants.
Francis D. O'Connor and Harry G. Carratt, of Morgan, Carratt O'Connor, Fort Lauderdale, for appellees.
A final judgment awarding compensation to property owners was entered in eminent domain proceedings. The condemning authority appeals.
We are called upon to determine the proper application and effect of section 74.09, F.S. 1963, F.S.A. as it existed prior to its amendment in 1965. The 1963 section provides:
"74.09 Proceedings as evidence in main suit.
The declaration of taking, the amount of the deposit and the report of the appraisers appointed by the court, shall not be admissible in evidence in any cause and shall not be exhibited to any jury empaneled for the purpose of assessing the value of any land in condemnation. The appraisers appointed by the court shall be competent witnesses in the cause when said cause is submitted to the jury for the purpose of fixing an award." (Emphasis added.)
The condemnor filed a declaration of taking and exercised its right to take immediate possession and title to the property in question. This was done prior to trial and judgment as was authorized by chapter 74, F.S. 1963, F.S.A. The trial judge tracking the pretrial procedures found in this chapter proceeded to determine the amount of the security deposit to be placed in the registry by the condemnor and, as a part of that undertaking, appointed Mr. E.V. Jackson and another to appraise the property. These appraisers duly functioned and reported their estimated value to the court at a hearing as statutorily provided, and their testimony was transcribed by a court reporter. This supplemental proceeding was completed in due course and without event.
As the date for trial of the main issue approached, the property owners subpoenaed Mr. Jackson to appear and testify on their behalf as an expert witness. They had a right to do this as Mr. Jackson was deemed competent as a witness by the terms of section 74.09, F.S. 1963, F.S.A., supra.
Mr. Jackson died prior to trial, and the property owners were permitted, over the condemnor's objection, to read into evidence at the trial of the main suit the estimate of value which Mr. Jackson had earlier reported to the court in the supplemental pre-trial proceeding under chapter 74, F.S. 1963, F.S.A. We find this act to be a violation of the explicit statutory prohibition found in section 74.09, F.S. 1963, F.S.A., supra, and further find that it is of a severity sufficient to require a reversal.
Whatever the wisdom and possible underlying purpose of this statutory provision, the legislative wish there expressed is clear and unequivocal and counsel and the courts must give heed and effect to it. We have found no exception. Appraisals, estimates and statements of value, garnered under chapter 74, F.S. 1963, F.S.A., supra, pre-trial taking procedure, have been determined by the courts to be inadmissible in evidence in the main case. See: Bennett v. Jacksonville Expressway Authority, Fla. 1961, 131 So.2d 740, quashing Jacksonville Expressway Authority v. Bennett, Fla.App. 1960, 124 So.2d 307, on other grounds; Jacksonville Expressway Authority v. Bennett, Fla.App. 1963, 158 So.2d 821; Bainbridge v. State Road Department, Fla.App. 1962, 139 So.2d 714; State ex rel. State Road Dept. v. Wingfield, Fla.App. 1958, 101 So.2d 184.
The property owners urge that the statute in question applies only to the appraiser's written report. They say that the oral report is without the statutory bounds so that it should be treated simply as a run of the mill deposition as where the matter is noticed with the witness testifying under oath and with the opposite side having the opportunity to cross examine. We reject this thesis.
Sections 74.03 and 74.04, F.S. 1963, F.S.A., provide for the appointment of the appraisers and the method whereby their reports are returned to the court. Our review of these sections leaves us with the firm impression that they contemplate the filing of a written report by the appraisers, together with the presentment of oral testimony as to it. In this light, we hold that the words, "report of the appraisers", found in section 74.09, F.S. 1963, F.S.A., mean, in sum, the appraiser's expressed opinion of the land's value and that same may be expressed orally, in writing or both ways and in all such events the appraiser's expressions of value are included within the statutory bar. To adopt the property owners' argument would be, in effect, to repeal the provisions of section 74.09, F.S. 1963, F.S.A., supra, as the property owner could simply avoid the provision by appearing at the appraisers' hearing and orally asking them for their opinion as to the value of the property sought to be condemned.
Travelling further, the condemnor did not have, in our opinion, such right of cross-examination as would qualify the testimonial report of the appraiser as a deposition. The condemnor was not on notice that the testimony would be used at trial. To the contrary, it was on notice as a matter of statute law that the report could not be so used. Also, the report was elicited as an aid to the court in determining the amount of the security deposit to be required, and the amount of this deposit was in nowise material or determinative of the jury's ultimate award. As reflected in section 74.07, F.S. 1963, F.S.A., an under or over payment of the deposit is adjusted to coincide with the jury's ultimate award. In this light, a condemnor would not be under any, or certainly not the same, compulsion to examine or challenge the testimony of the appraiser as it would be at the main suit trial where the amount of money to be paid over is decided.
In addressing ourselves to this problem, we observe, as a matter of hindsight, that the property owners could have taken the deposition of Mr. Jackson as an expert witness in accordance with the formalities prescribed by the Florida Rules of Civil Procedure, 30 F.S.A. In so doing, his testimony would have been properly and effectively preserved for use at the main trial, with the only limitation being that set forth in section 74.09 F.S. 1963, F.S.A., supra, — they could not elicit Mr. Jackson's pre-trial report to the court. In other words, they could have obtained, in this fashion, his independent appraisal — his appraisal rendered without reference to his court appointed function, the mention of which might tend to give it special weight and credence.
Is the error harmful? We think so. Mr. Jackson's valuation was $17,525.00. The condemnor's appraiser testified to a valuation of $13,400.00. These were the only two expert appraisal figures before the jury. The jury returned a verdict in the sum of $16,000.00. Thus, the award was $2,565.00 in excess of the only legitimate appraisal figure, indicating that Mr. Jackson's appraisal had been considered and used by the jury. Because of this overage which has no proper support in the record, we feel that the matter should be re-tried.
The other points raised by these litigants have been considered, and it is believed that they are without merit and not such as would require comment by this court.
Reversed.
ANDREWS, Acting C.J., and GONZALEZ, JOSE A., Jr., Associate Judge, concur.
UPON PETITION FOR REHEARING
The condemnor asks us to reconsider and reverse our order which awarded attorney fees to the condemnees for the services of their attorney which were rendered in this appeal.
It is to be remembered that the condemnor was the successful appellant and that a reversal of the trial court judgment resulted.
Condemnor suggests that the award was contrary to law and supports this stance with the cases of State Road Department v. Mutillo, Fla.App. 1963, 155 So.2d 179; State Road Department v. Peter, Fla.App. 1964, 165 So.2d 771. Indeed, these two cases do deny an award of fees to condemnees where the condemnor was the successful appellant. The rationale for these decisions is found in the Mutillo case:
"In Conner v. State Road Department of Florida, Fla. 1953, 66 So.2d 257, the Supreme Court of Florida noted that as a general rule attorney fees for services to a condemnee on appeal may be awarded only where the statute or special contract so provides. Subsequently, in Jacksonville Expressway Authority v. Henry G. Du Pree Company, Fla. 1959, 108 So.2d 289 at 294, 69 A.L.R.2d 1445 the majority of the Supreme Court was of the opinion that an exception should be made to the general rule in cases where the condemnees are successful in appeals prosecuted by the condemning authority. The instant condemnees are not successful on the condemnor's appeal. Accordingly their motion for attorney fees does not come within the exception and is not supported by Jacksonville Expressway Authority v. Henry G. Du Pree Company, supra. The motion for fees is denied." 155 So.2d 179, 180.
Because our view conflicts with that expressed in the Mutillo case which was followed in the Peter case, we have examined the matter with special care, searching for a basis whereby our respective views might be accommodated or reconciled. Having done this without success, we announce with regret that we must depart from the position taken by our sister court. We do this because we are persuaded that F.S.A. § 73.131 authorizes the award of these fees and because we place a different construction upon the case of Jacksonville Expressway Authority v. Henry G. Du Pree Company, Fla. 1959, 108 So.2d 289, which was cited as authority for the holding in the Mutillo case.
We believe that the requirements of our organic law which provide for "full" and "just" compensation for the condemnees would authorize an award of attorney fees under the circumstances at hand even without the auspices of statute or special contract. In the case of Jacksonville Expressway Authority v. Henry G. Du Pree Company, supra, we notice that an award of fees to a successful condemnee in an appeal brought by the condemnor was approved. Upon consideration we are not able to make a meaningful distinction between that situation and the case of an unsuccessful condemnee appellee, and, thus, we believe that the reasoning provided in the Jacksonville Expressway case applies equally well here. In our case the condemnees obtained judgment satisfactory to them, and the same represented the law of the case until it was reversed. The condemnor appeals. What is the condemnee to do? Obviously, he is bound to guard and protect the trial court judgment. To this end he requires the services of counsel and the expenditure of necessary costs. Parenthetically, the appellate court needs the services of counsel on both sides in order that it may receive the benefit of advice in seeking a solution to the sometimes complicated problems that attend eminent domain proceedings. The penalty of costs and fees should not be placed at the property owner's door in the event the appellate court disagrees and reverses the trial court judgment upon an appeal initiated by the condemnor.
Next, and even more compellingly, F.S.A. § 73.131, which is applicable to this appeal, affords a clear mandate for the award of these contested fees. The substance of that statute is that the condemnor must pay all appellate costs and attorney fees except in the instance of an unsuccessful appeal taken by the condemnee. The facts in the instant case do not in anywise fit the exception mentioned in the statute. We know by the rules of statutory construction that express exceptions made in a statute give rise to a strong inference that no other exceptions are intended and that exceptions will not be implied where, as here, the words of the statute are free from ambiguity. 30 Fla.Jur., Statutes, §§ 84 and 129.
" 73.131 Appeals. * * *
"The petitioner shall pay all reasonable costs of the proceedings in the appellate court, including a reasonable attorney's fee to be assessed by that court, except upon an appeal taken by a defendant in which the judgment of the trial court shall be affirmed."
Sections 73.16 and 74.10, F.S. 1963, F.S.A., were the forerunners of F.S.A. § 73.131 and a comparison of them reveals no material differences with reference to the issue. The case of Jacksonville Expressway Authority v. Henry G. Du Pree Company, supra, had occasion to construe Section 73.16 and 74.10, F.S. 1963, F.S.A., with reference to an award of fees to successful condemnees in appeals prosecuted by the condemnor. While the specifics of that factual situation were not found in the statutes dealing with the matter, the court there recognized the specific exception and held that, since its facts did not fit the definition of the exception, the statutes would authorize the payment of the fees. We think such construction lends comfort to the view we take as to the application of the statute. More exactly, the Supreme Court said there:
"73.16(1963) Costs of proceedings.
"All costs of proceedings shall be paid by the petitioner, including a reasonable attorney's fee to be assessed by the court, except the cost upon the appeal taken by a defendant, in which the judgment of the circuit court shall be affirmed."
"74.10(1963) Costs and attorneys' fees. * * *
"All cost of proceedings shall be paid by the petitioner, including reasonable attorneys' fees for the defendant to be assessed by the court, except the cost upon review taken by a defendant, on which the judgment of the circuit court shall be affirmed."
"[8] Moreover, although no statute is needed to implement the organic law which provides for `full' and `just' compensation, as those terms have been interpreted by this court, nevertheless it would seem to be a proper interpretation of Sections 73.16 and 74.10, F.S.A., that in condemnation appeals the condemnor must pay the condemnee's reasonable attorney's fees, except in those cases where the appeal is taken by the condemnee and the judgment of the circuit court is affirmed. Such an interpretation was adopted by this court in the case of State Road Department of Florida v. Hartman, Fla., 1957, 94 So.2d 742. In an unpublished order annexed to our per curiam opinion we said:
"Upon motion of the landowners, who were defendants in the eminent domain proceeding under Chapter 74 Florida Statutes 1955 and who were awarded compensation in the lower court which has been affirmed by this Court in an appeal brought by the petitioners, State Road Department and Alachua County; it is Ordered that attorney's fees for services rendered to the landowners in defending their cause on this appeal are hereby awarded as follows: $350.00 to Lazonby, Dell, Graham Wilcox as attorneys for T.A. Wallace and $350.00 to Clayton, Arnow, Duncan Johnston as attorneys for John Frances Hartman and wife, Martha Evelyn Hartman, M.T. Hartman, Jr. and wife, Ina T. Hartman.
`§ 74.10 Florida Statutes 1955 provides:
`"All cost of proceedings shall be paid by the petitioner, including a reasonable attorney's fee for the defendant to be assessed by the jury, except the cost upon the writ of error taken by a defendant, on which the judgment of the circuit court shall be affirmed."
`The legislative intent in the statute is clear. All cost of the proceedings (which contemplates appellate proceedings, since the sole exception is to cost on writ of error under circumstances not present in the case at bar) is required to be paid by the petitioners. It is also clear that reasonable attorney's fees are included by the statute as a cost. See DeSoto County v. Highsmith, Fla., 1952, 60 So.2d 915; cf. Dade County v. Brigham, Fla., 1950, 47 So.2d 602, [18 A.L.R.2d 1221] the principles of which were reaffirmed in the order on rehearing granted in Dade County v. Houk, Fla., 1956, 89 So.2d 649.'" 108 So.2d 289, 294.
We, therefore, hold that the condemnees are entitled to an award of fees and costs where the condemnor is the successful appellant.
Appellant's petition for rehearing is denied.
ANDREWS, Acting C.J., and GONZALEZ, JOSE A., Jr., Associate Judge, concur.