Blankenship v. Dept. of Transportation
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JULY TERM 2004
CHUCK BLANKENSHIP,
Appellant,
CASE NO. 5D03-4126
v.
DEPARTMENT OF TRANSPORTATION,
ET AL.,
Appellee.
___________________________________/
Opinion filed December 3, 2004
Appeal from the Circuit Court
for Seminole County,
Nancy F. Alley, Judge.
Thomas P. Callan, G. Robertson Dilg and Alison M.
Yurko of Thomas P. Callan, P.A., Orlando, for
Appellant.
Pamela S. Leslie, General Counsel and Gregory G.
Costas, Assistant General Counsel of Department of
Transportation, Tallahassee, for Appellee.
ORFINGER, J.
Chuck Blankenship appeals a final judgment entered in an eminent domain valuation
proceeding. Blankenship contends that the trial court erred when it prohibited him from
"introducing any evidence as to his allegation that the Florida Department of Transportation's
[“FDOT”] taking of parcel 835 would cause the flooding of his remainder property and to the
severance damages that would result therefrom." We agree and reverse for a new trial on
damages.
FDOT acquired a perpetual drainage easement, parcel 835, over a portion of
Blankenship's property for the purpose of constructing a storm water pipeline below ground
level. Prior to trial, FDOT filed a motion in limine regarding Blankenship’s flooding claim in
which it argued, in pertinent part:
[I]t is believed that Respondent [Blankenship] will attempt to
introduce testimony or documentary evidence at the trial of this
cause that suggests FDOT's taking will cause flooding to
Respondent's property.
3.
Evidence regarding the possible flooding of
Respondent's property is speculative in nature and, therefore, not
ripe for adjudication in this eminent domain full compensation
trial. Walters v. State Road Dept., 239 So. 2d 878 (Fla. 1970),
Florida Outdoor, Inc. v. Stewart, [318 So. 2d 414] (Fla. 2d DCA
1975).
4.
Furthermore, a claim for flooding is properly
brought as an inverse condemnation claim if and only if the
flooding actually does occur. Kendry v. State Road Dept [sic] of
Florida, 213 So. 2d 23 (Fla. 4th DCA 1968), Dudley v. Orange
County, 137 So. 2d 859 (Fla. 2d DCA 1962). To allow such a
speculative claim at the jury trial on full compensation would be
highly inflammatory and prejudicial and would constitute
reversible error.
Over Blankenship's objection, the trial court granted FDOT’s motion in limine,
concluding that the potential flooding alleged by Blankenship would not allow for severance
or consequential damages, and would, therefore, be irrelevant to the eminent domain
damages trial. In light of the trial judge's ruling, the parties resolved the remaining valuation
issues. A final judgment was then entered against FDOT "for damages resulting to the
remainder if less than the entire property was taken, and for all other damages of any nature,
including interest, subject to claims for apportionment, if any." In his motion for rehearing,
Blankenship argued that the inclusion of the language quoted from the final judgment would
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bar him from ever seeking damages for flooding, even though his flooding claim had not been
tried and was not the subject of any settlement. After the motion for rehearing was denied, this
appeal followed.
Article X, Section 6 of the Florida Constitution provides for "full compensation" to a
land owner for property taken for a public purpose. "There is no single test for determining
what is full compensation. Fla. Power & Light Co. v. Jennings, 518 So. 2d 895, 897 n.2 (Fla.
1987). "[A]ll facts and circumstances which bear a reasonable relationship to the loss" must
be taken into consideration determining full compensation. Jacksonville Expressway Auth.
v. Henry G. DuPree Co., 108 So. 2d 289, 291 (Fla. 1958). The issue in eminent domain
proceedings is to determine what is full compensation for both the property taken and for
damages to the remaining property. Jennings, 518 So. 2d at 898. Any factor which impacts
on the market value of the land taken for a public purpose may be considered to explain the
basis for an expert's valuation opinion. Id. at 899.
In the proceedings below and in this court, FDOT argues that Blankenship's flooding
claim should be brought as an inverse condemnation claim, if and when flooding occurs. In
support of that argument, FDOT cites Kendry v. State Road Department of Florida, 213 So.
2d 23 (Fla. 4th DCA 1968). Notably, however, FDOT fails to consider that Kendry did not
involve a direct taking claim. As a result, theKendry landowners’ only avenue of recourse was
an inverse condemnation claim. We reject FDOT’s argument that the same rule should apply
here because it has long been recognized that "injury by the condemnor to remaining land
caused by obstructing, diverting or increasing the flow of surface waters, but which do not
amount to a permanent deprivation by the owner of the use of such remaining lands, is a
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consequential damage resulting from the taking in an eminent domain proceeding, and must
be recovered in that proceeding if at all." Poe v. State Rd. Dep’t, 127 So. 2d 898, 901 (Fla.
1st DCA 1961).
Accordingly, we reverse the judgment and remand this matter for a new trial on
damages.
REVERSED and REMANDED.
PALMER and TORPY, JJ., concur.
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