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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