Respondents Brief — Schram v. Dade County

Office-Supreme Court, U.S.

7-stLE D

) JUL 21-1984

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ALEXANDER L STEVAS,

CASE NO. 83-2116 CLERK

in the

Supreme Court

of the

Rnited States

October Term, 1984

MICHELE R. SCHRAM, as Personal Representative

of the Estate of MICHAEL GAYDOS, deceased, and

individually; MILLER ADAMS and MARY ADAMS,

his wife; and NICK ADAMS and JOSIE ADAMS,

his wife,

Petitioners,

vs.

DADE COUNTY, a political subdivision of

the State of Florida,

Respondent.

On Petition for a Writ of Certiorari to the

District Court of Appeal of Florida, Third District

BRIEF OF RESPONDENT

ROBERT A. GINSBURG

Dade County Attorney

16th Floor

Dade County Courthouse

73 West Flagler Street

Miami, Florida 33130

(305) 375-5151

By

Stephen J. Keating

Assistant County Attorney

QUESTIONS PRESENTED FOR REVIEW

(1) Whether the Petition for a Writ of Certiorari

should be denied because the Petitioners have failed to

take the case first to the Florida Supreme Court, the

highest state court to which the case could be taken.

(2) Whether the Petition for a Writ of Certiorari

should be denied because, under the Fifth Amendment

to the United States Constitution, it is well settled that

“just compensation” means the fair market value of

property taken, and the challenged Florida statute is

not inconsistent with that principle.

TABLE OF CONTENTS

Pages

Questions Presented For Review ............... i

Table of Contents .............. MPR ee ii

Lf RI rer re sec onic iii

Seaton of Ti CO... i ici ketene Seawe sas 2

Reasons For Denying Petition For

8 ff. rrr eer rrrrr rey ris ys 3

Genes... . ev eees ssnese ee eee 16

ree cre Se 17

ii

TABLE OF AUTHORITIES

Cases Pages

Banks v. California,

395 U.S. 708, 89 S.Ct. 1901, 23 L.Ed.2d653.... 4

Dodi Publishing Co. v. Editorial America, S.A..,

385 So.2d 1369 (Fla. 1980) .................. 6,7

Equitable Life Assurance Society v. Brown,

oe Se ee 8

Georgia-Pacific v. United States,

ee 12-14

Ogden v. Saunders,

25 U.S. 213, 12 Wheat. 213,

a 12

Robles Del Mar, Inc. v. Town of Indian River Shores,

379 So.2d 967 (Fla. App. 4th 1979) ............ 7

State Road Department v. Abel Investment Co.,

165 So.2d 832 (Fla. 2d DCA 1964),

cert. den., 160 50.20 465 .............2200, 9,11

State Road Department v. Bramlett,

189 So.2d 481 (Fla. 1966) ................ 5, 9, 11

Stratton v. Stratton,

239 U.S. 55, 36 S.Ct. 26,59 L.Ed.55.......... 3, 4

iii

TABLE OF AUTHORITIES (Continued)

Cases Pages

United States v. 564.54 Acres of Land,

441 U.S. 506, 99 S.Ct. 1854,

8 | aaa area ar 15

United States v. 499.472 Acres of Land More or

Less in Brazoru,

701 F.2d 545 (5th CCA 1983) ................ 14

United States v. Miller,

317 U.S. 369, 63 S.Ct. 276,

iss cnc ecucaseumus 8, 9, 11,

12, 15

Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446..... 3

OTHER

IE, sk % Vo Cav Woah e Sh eae 8% 3, 6, 7, 8

Ee WP er 3

Florida Rules of Appellate Procedure

RRA Rt gata yh <5 nes SN enn eRe 4

I Rese Sr ers nee ceniad on cies 4

aa, an ce seg hi nee 5

GID 5 os 5 hee ese ev ewe ues 4,5,7

Ne ce ee or 6,7

iv

TABLE OF AUTHORITIES (Continued)

Cases Pages

Florida Constitution, 1968, as amended 1980:

iT Fe eee 4,6

pe ey eee 5

Florida Statutes §73.071(3Mb) (1981) ............ 5, 8,

10, 11

4 Nichols on Eminent Domain,

$13.3 @Wev. Srd ed., 1976) ................... 9

Ne iN 5 NS URL os Mo Wy TRY

NA NLT tt AE BE SE NCEA AIOE hh tn Dae aw 0 te se aa Al ODL INGAI | nt ngewe BBE AS CN Wn

CASE NO. 83-2116

in the

Supreme Court

of the

United States

October Term, 1984

MICHELE R. SCHRAM, as Personal Representative

of the Estate of MICHAEL GAYDOS, deceased, and

individually; MILLER ADAMS and MARY ADAMS,

his wife; and NICK ADAMS and JOSIE ADAMS,

his wife,

Petitioners,

vs.

DADE COUNTY, a political subdivision of

the State of Florida,

Respondent.

On Petition for a Writ of Certiorari te the

District Court of Appeal of Florida, Third District

BRIEF OF RESPONDENT

STATEMENT OF THE CASE

The Petitioners’ Statement of the Case is adequate

for the purpose of the Petition. Three points only need

to be added:

1) The properties taken by the condemnor under

the eminent domain power were both total, not partial

takings.

2) The trial court allowed the jury to award to

the owners the fair market value of their properties

totally taken, and excluded the property owners’ proffered

testimony of what it would cost them to purchase other

replacement properties.

3) As the case involved “total takings” no business

damages were allowed to be awarded.

REASONS FOR DENYING PETITION

FOR WRIT OF CERTIORARI

I

The Petition, in its “Jurisdiction” statement, invokes

Title 28 U.S.C.A, §1257(2) and (3). The Petition is for a

Writ of Certiorari, however, and subsection (2) of that

Title is therefore inapplicable.

Under Title 28, §1257, the Certiorari section,

Final judgments or decrees rendered by the

highest court of a State in which a decision

could be had, may be reviewed by the Supreme

Court as follows:

(3) by writ of certiorari,.. .

The decision of the Court of Appeals, Third District,

of the State of Florida, which is the subject of this

Petition for Certiorari, is not from the highest court of

the State of Florida, nor is it from the “highest court

of [the] state in which a decision could be had.” For that

reason, therefore, this Petition should be denied.

Under this Court’s certiorari jurisdiction, Title 28

U.S.C.A., §1257(3), the judgment of an intermediate

state appellate court is that of the highest court in

which decision can be had if the state law makes its

decision final and non-reviewable. Williams v. Florida,

399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446. If, however,

there is discretionary review by a higher state court,

the exercise of such discretion must be sought in the

state courts. Stratton v. Stratton, 239 U.S. 55, 36 S.Ct.

26, 59 L.Ed. 55; Banks v. California, 395 U.S. 708, 89

S.Ct. 1901, 23 L.Ed.2d 653.

The Petitioners have made no application to the

Florida Supreme Court for a Writ of Certiorari, as they

could have done, pursuant to Florida Appellate Rule

9.030(aX2A Mi) & (ii).

Proceedings in the appellate courts of Florida,

including the Florida Supreme Court, are governed by

the Constitution of the State of Florida, 1968 as amended,

Art. V, §3(b)(3), and by the Florida Rules of Appellate

Procedure. Copies of the pertinent Florida Rules and

the Florida constitutional section cited are appended

hereto as Exhibit A.

Rule 9.010 of the Florida Rules states that “these

rules . . . shall govern all proceedings commenced on

or after [March 1, 1978] in the Supreme Court. . .”

Fla.R.App.P. 9.030(a\(2) states as follows:

(2) Discretionary Jurisdiction. The dis-

cretionary jurisdiction of the Supreme

Court may be sought to review:

(A) decisions of district courts of

appeal that:

(i) expressly declare valid a state

statute;

(ii) expressly construe a

provision of the state or federal

constitution; ... .”

In the case sub judice, as the Petitioners admit,

the trial court upheld the constitutionality of a state

statute, §73.071(b), Fla.Stat., [sic] under the Fifth and

Fourteenth Amendments to the United States

Constitution and under §6 of Art. X of the Constitution

of the State of Florida. (This appears in the stipulated

statement of parties to appeal, in petitioners’ brief

Exhibit G, p. 25.) The District Court of Appeals, Third

District, affirmed, per curiam, citing State Road

Department v. Bramlett, 189 So.2d 481 (Fla. 1966), and

§73.071(3Xb), Fla.Stat. (1981), (which is the correct citation).

A copy of that statute is contained herein as Exhibit B.

With reference to Rule 9.030(aX2AVMi)&(ii) cited,

supra, it should be pointed out that the “stipulated

statement of parties to appeai” referred to above is a

permissible device under Florida Appellate Rules to

assist the appellate Court in limiting the bulk of the

record on appeal. Fla.R.App.P. 9.200(a)\(3) states:

“Stipulated Statement. The parties may

prepare a stipulated statement showing how

the issues to be presented arose and were

decided in the lower tribunal, attaching a copy

of the order to be reviewed and as much of the

record in the lower tribunal as is necessary to

a determination of the issues to be

”

presented... .

The per curiam opinion of the District Court of

Appeals, Third District, which is the subject of this

Petition for Writ of Certiorari, cited, inter alia, Section

73.071(3Xb), Fla.Stat. (1981). Exhibit F to Petitioner's

Brief sets forth the evidence that the unconstitutionality

of a cited statute under the Fifth and Fourteenth

Amendments to the United States Constitution was

raised in the Third District Court of Appeals.

The Third District Court of Appeals, therefore,

specifically upheld the constitutionality of a state statute.

This was specifically raised by the Petitioner herein as

is set forth in the Stipulated Statement. (Exhibit G to

the Petition for Writ of Certiorari.) The opinion of the

Third District Court of Appeals is reviewable by petition

for writ of certiorari to the Florida Supreme Court

under Fla.R.App.P. 9.030(a(2AMi) and (ii). For that

reason, therefore, the case should properly have been

brought, if at all, to the Florida Supreme Court, and

not to the United States Supreme Court. Accordingly,

it is respectfully suggested that the Petition for Writ

of Certiorari should be denied for a lack of jurisdiction

under Title 28, U.S.C.A. §1257.

II

The Petitioners’ sole basis for their claim that this

Court should allow certiorari jurisdiction is the pair of

cases cited in the footnote to page 3 of Petitioners’

Brief.

The Dodi case, Dodi Publishing Co. v. Editorial

America, S.A., 385 So.2d 1369 (Fla. 1980), deals with

conflict certiorari. The Florida Supreme Court refused,

in that case, to re-examine a case cited by a lower court

in a per curiam affirmed opinion to see if it conflicted

with other appellate decisions in the intermediate Florida

Courts.

The case sub judice is not a “conflict” case, which

would be covered by Fla.R.App.P. 9.030(aX2AMiv), but

one which may be taken to the Florida Supreme Court

under Florida Constitution, Art. V, §3(b)(3) as amended

1980, and Fla.R.App.P. 9.030(a)2)A)(i) or (ii). (The rule,

setting forth §§i, ii and iv is appended hereto as Exhibit

C.)

The other case cited by Petitioners, Robles Del

Mar, Inc. v. Town of Indian River Shores, 379 So.2d 967

(Fla.App. 4th 1979), but appearing later at 385 So.2d

1371, Supreme Court of Florida 1980, is also inapplicable.

Petitioners contend that the Robles case supports their

contention that the Third District Court of Appeals is

the “highest court in which the decision could be had”,

but that case also apparently, but not clearly, deals

with “conflict” certiorari, like the Dodi case on which

they rely.

Neither Dodi nor Robles deal with Fla.R.App.P.

9.030(aX2AMi) and (ii), decisions of District Court of

Appeals that “expressly declare valid a state statute,”

or “expressly construe a provision of the state or federal

constitutions.”

On the preliminary question of federal jurisdiction,

therefore, the Petition should be denied, at least until

such time as the Petitioners have attempted to have

the case reviewed by the Florida Supreme Court.

Ill

In their Brief, Petitioners raise three “Questions

Involved”. As to the first, the “substantial federal

question”, the Petitioners devote only one one-sentence

paragraph, at page 7 of the Brief. It is essential to the

jurisdiction of the Supreme Court under §1257 of Title

28 U.S.C.A. that a substantial federal question has

been properly raised in the state court proceedings.

This federal question must be more than a formal one.

It must not be so absolutely devoid of merit as to be

frivolous. Nor can it be so explicitly foreclosed by prior

decisions of the Supreme Court as to leave no room for

real controversy. Equitable Life Assurance Society v.

Brown, 187 U.S. 308, 311, 47 L.Ed. 308, 311.

The just compensation clause of the Fifth

Amendment to the United States Constitution has been

dealt with very specifically by the federal courts in

eminent domain cases. The so-called “federal issue”

has been fully settled previously. United States v. Miller,

317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336 (1943).

It is, therefore, urged that there is no substantial

federal question.

Next, in their “Questions Involved”, numbers 2 and

3, Petitioners invoke the Fifth and Fourteenth

Amendments to the United States Constitution in a

mixed fashion. The “just compensation” requirement

of the Fifth Amendment is the basis for question 2. In

question 3, Petitioners throw in a reference to the

Equal Protection Clause of the Fourteenth Amendment,

but nowhere in the text is equal protection of the laws

discussed further.

As the “rulings in the District Court of Appeal of

Florida, Third District, limiting petitioners’ damages”

were based expressly on the constitutionality of §73.071(b),

Fla.Stat., (Stipulated Statement of Parties to Appeal,

Exh. G to Petitioners’ Brief), and correctly cited also in

Exhibit A to Petitioner’s Brief as §73.071(3Xb), Fla.Stat.

(1981), the questions numbered 2 and 3 by the Petitioners

8

are really one and the same. Petitioners’ question 2

amounts to a claim that “just compensation” includes

in addition to the fair market value of the property an

extra increment for the purchase of “replacement

properties.” The third argument seems to be that just

compensation must also include business damages.

The question involves whether, where under state

law in total takings neither the cost of purchasing

other replacement properties nor business damages

are compensable, the statute in question violates the

Fifth and Fourteenth Amendments of the federal

constitution. :

As the Petitioners are measuring the Florida Statute

against the Fifth Amendment to the United States

Constitution, the federal decisions concerning the meaning

of the “just compensation” clause of the Fifth Amendment

are controlling.

“Just compensation” means the “market value of

the property”. United States v. Miller, supra.

The prevailing rule in the United States is the

payment of compensation for damage to or destruction

of a business, attributable to the taking of property in

a condemnation proceeding, is payable only when

authorized by statute. 4 Nichols on Eminent Domain,

§13.3 (rev.3rd ed., 1976). Indeed, the Florida courts

have followed this rule, that is that business damage

does not constitute a part of the constitutionally protected

concept of “just” or “full” compensation and is compensable

only if allowed by statute. State Road Department v.

Bramlett, 189 So.2d 481 (Fla. 1966); State Road Department

v. Abel Investment Co., 165 So.2d 832 (Fla. 2d DCA

1964), cert. den., 169 So.2d 485.

9

There is no authority in Florida for the proposition

that a property owner is entitled, in addition to the fair

market value of his property totally taken, also to an

increment calculated on a basis of costs of purchasing

replacement properties.

The sole discernible reason for Petitioners’ claim

that §73.071(3Xb), Fla.Stat., as applied, deprived an

owner of real property of equal protection or due process

of law is that the statute lacks a rational relationship

to constitutionally permitted goals.

The Petitioners’ claim that on its face (or for that

matter otherwise) §73.071, Fla.Stat. is illogical or lacking

in a rational relationship to the goal of achieving “just

compensation” is erroneous.

The most obvious rational basis for the statute as

it relates to business damages can be seen by reference

to the statute’s treatment of severance damages.

Under §73.071(3Xb), Fla.Stat., if, in an eminent domain

case an entire parcel of real property is taken by a

government agency, the condemning authority must

pay the owner the value of the real property —land

plus improvements—taken. If only a part of the real

property is taken, in addition to the value of the property

taken another amount may be awarded, called “severance

damages”. This is an estimate of the damage caused by

the partial taking to the remaining portion of the property

still owned by the condemnee.

The prime reason for granting severance damages

in partial taking cases is that the owner has been left

10

=

“stuck with” his damaged remaining property. In total

takings he has no such problem.

The same distinction exists with regard to business

damages, which are in any event not an element of

constitutionally protected damages but are in Florida

awarded as a matter of legislative grace in certain

circumstances. State Road Department v. Bramlett,

supra; State Road Department v. Abel Investment Co,

supra.

In total takings, under Florida law, as under federal

law, United States vs. Miller, supra, no business damages

are allowed. Under §73.071(3\b), Fla.Stat., in partial

takings (for established businesses of more than five

years’ duration) business damages may be assessed

because the business owner is still possessed of a business

which must be run on the piece of real estate which has

been diminished in size because of the taking.

Where a total taking takes place the owner is paid

fully for the real property and is enabled, if he desires

to do so, to do business elsewhere, untrammelled by

ownership of a business on property which has been

reduced in size because of the taking.

The basis for the distinction between partial and

total takings is, therefore, entirely rational.

In the Petition for Writ of Certiorari, the Petitioners

claim that they should have received an award based

not upon severance damages but for business damages.

Both are excluded by the statute §73.071(3\b), Fla.Stat.,

in “total” taking cases.

11

The claim is that “business damages” are part of

“just compensation” for property taken for the purposes

of the Fifth Amendment of the United States Constitution,

and that the statute is therefore unconstitutional. In

support of that proposition, the Petitioners cite several

cases which are inapplicable and one of which strongly

supports the decision of the trial court, affirmed below

by the Florida Court of Appeals, Third District.

Petitioners cite the case of Georgia-Pacific v. United

States, 640 F.2d 328 (1980), in support of the “rule” of

Ogden v. Saunders, 25 U.S. 213, 12 Wheat. 213, 6 L.Ed.

606 (1827). The respondent has no objection to the

general “rule” set forth in Ogden, but fails to see the

significance of Georgia-Pacific.

Georgia-Pacific was a federal case involving a partial,

not a total taking, of forested lands for a national park.

The discussion in Georgia-Pacific involved a complicated

factual dispute concerning severance, not business

damages. Although much evidence was offered concerning

the extra expense which the condemnees claimed they

would have to incur to harvest the redwood timber on

their remaining land, these expenses were an index of

~ severance damage — damage to the property —and were

not claimed as business damages, which are in any

event not obtainable under federal law. United States

v. Miller, supra.

To the contrary, however, two passages from the

Georgia-Pacific opinion quoted by the Petitioners set

forth the correct rule under federal eminent domain

law:

12

“ “The owner must be compensated for what is

taken from him, but that is done when he has

paid its fair market value for all available uses

and purposes.’ United State v. Chandler-Dunbar

Water Power Company, 229 U.S. 53, 81, 33

S.Ct. 667, 679, 57 L.Ed. 1063 (1913). It has been

said that a condemnee ‘is entitled to receive

the value of what he has been deprived of, and

no more. To award him less would be unjust to

him; to award him more would be unjust to

the public.” Bauman v. Ross, 167 U.S. 548, 574,

17 S.Ct. 966, 976, 42 L.Ed. 270 (1897). Plaintiff

has been paid the fair market value of the

gravel deposit site and the gravel located thereon

taken from it. It is not entitled to more.

“It is settled that not all losses suffered by the

owner are compensable under the Fifth

Amendment. The government must pay only

for what it takes, not for opportunities which

the owner may have lost. United States ex rel.

TVA v. Powelson, supra, 319 U.S. at 281, 283-84,

63 S.Ct. at 1056-57. Since alternative gravel

was available to plaintiff, the fact that plaintiff

may have had to pay more for said gravel

after the taking would suggest a business loss

or the loss of future profits on its timber

operations. Such losses are not compensable.

(Citations omitted). Finally, it would not be

unreasonable, in my opinion, to view this claim

essentially as one for the recovery of

13

consequential damages. Under federal law,“

there can be no recovery for consequential

damages as a result of a taking. Mitchell v.

United States, 267 U.S. 341, 345-46, 45 S.Ct.

293, 294, 69 L.Ed. 644 (1925); United States v.

91.90 Acres of Land, (69 F.Supp. 328, 332 (D.P.R.

1947)).”

The Court in Georgia-Pacific, supra, went on to

add at pages 364-65:

“In any event, it seems to me that this severance

damages claim is, in essence, one for

consequential damages and thus not

compensable. . . . The claim as advanced by

plaintiff seems to rest more on anticipated

business operation frustrations or anticipated

readjustment of business operations on the

remainder lands because of the partial taking.

Such business frustrations and readjustments

have been held non-compensable.” (Citations

omitted).

Petitioners’ citation to the case of United States v.

499.472 Acres of Land More or Less in Brazoria, 701

F.2d 545 (5th CCA 1983) is to a dictum which has no

relationship to the Ogden case cited by the Petitioners,

or to any other relevant point.

footnote” The measure of just compensation is governed ;

by the United States Constitution. The Constitution

has never been construed as requiring the payment

of consequential damages. See United States v.

Miller, 317 U.S. 369, 376, 379-80, 63 S.Ct. 276, 282-83,

87 L.Ed. 336 (1943)... .”

14

Finally, in support of their claim under the Fifth

Amendment, the Petitioners cite the case of United

States v. 564.54 Acres of Land, 441 U.S. 506, 99 S.Ct.

1854, 60 L.Ed.2d 435 (1979). That case is fully supportive

of the decision of the trial court and the court of appeals,

State of Florida, Third District, in the case sub judice.

That case fully supports the well established rule

of law set forth in the Miller case, supra, which they

also cite. At page 1857 this Court said:

“The court therefore has employed the concept

of fair market value to determine the

condemnee’s loss. Under this standard the owner

is entitled to receive ‘what a willing buyer will

pay in cash to a willing seller’ at the time of

the taking.” (citations omitted).

Nothing in 564.54 Acres suggests any law to the contrary,

and the case is totally consistent with the Respondents’

position herein.

15

CONCLUSION

For the reasons set forth in the above arguments,

the Petition for a Writ of Certiorari should, it is

respectfully requested, be denied.

Respectfully submitted,

ROBERT A. GINSBURG

Dade County Attorney

16th Floor

Dade County Courthouse

73 West Flagler Street

Miami, Florida 33130

(305) 375-5151

By: 4 | Meeting

Wi

tepHen J. Keating

Assistant County Attorney

Attorney for Respondent

16

Append ix

17

INDEX TO APPENDIX

EXHIBIT A:

(1) Article V, §3(b\3), Florida Constitution

(2) Article X, §6, Florida Constitution

(3) Rule 9.010, Florida Rules of Appellate Procedure

(4) Rule 9.200(a\3), Florida Rules of Appellate

Procedure

(5) Rule 9.030 (aX2), Florida Rules of Appellate

Procedure

EXHIBIT B:

Section 73.071(3\b), Florida Statutes (1981)

EXHIBIT C:

Rule 9.030(aX2KAXixiiXiv), Florida Rules of Appellate

Procedure

18

EXHIBIT A(1)

Article V, §3(bX3), Florida Constitution

ARTICLE V

JUDICIARY

” ” ”

SECTION 3. Supreme court.—

* * '*

(b) JURISDICTION.—The supreme court:

” * ”

(3) May review any decision of a district court of

appeal that expressly declares valid a state statute, or

that expressly construes a provision of the state or

federal constitution, or that expressly affects a class of

constitutional or state officers, or that expressly and

directly conflicts with a decision of another district

court of appeal or of the supreme court on the same

question of law.

19

EXHIBIT A(2)

Article X, $6, Florida Constitution

ARTICLE X

MISCELLANEOUS

SECTION 6. Eminent domain. —

(a) No private property shall be taken except for

a public purpose and with full compensation therefor

paid to each owner or secured by deposit in the registry

of the court and available to the owner.

(b) Provision may be made by law for the taking

of easements, by like proceedings, for the drainage of

the land of one person over or through the land of

another.

EXHIBIT A(3)

Rule 9.010, Florida Rules of Appellate Procedure

Rule 9.010. Effective Date and Scope

These rules, cited as “Florida Rules of Appellate

Procedure”, and abbreviated “Fla.R.App.P.”, shall take

effect at 12:01 a.m. on March 1, 1978. They shall govern

all proceedings commenced on or after that date in the

Supreme Court, the district courts of appeal, and the

circuit courts in the exercise of the jurisdiction described

by Rule 9.030(c); provided that any appellate proceeding

commenced before March 1, 1978, shall continue to its

conclusion in the court in which it is then pending in

accordance with the Florida Appellate Rules, 1962

Revision. These rules shall supersede all conflicting

rules and statutes.

21

EXHIBIT A(4)

Rule 9.200(aX3), Florida Rules of Appellate Procedure

Rule 9.200. The Record

(a) Contents.

(3) Stipulated Statement. The parties may

prepare a stipulated statement showing how the

issues to be presented arose and were decided in

the lower tribunal, attaching a copy of the order to

be reviewed and as much of the record in the

lower tribunal as is necessary to a determination

of the issues to be presented. The parties shall

advise the clerk of their intention to rely upon a

stipulated statement in lieu of the record as early

in advance of filing as possible. The stipulated

statement shall be filed by the parties and

transmitted to the court by the clerk of the lower

tribunal within the time prescribed for transmittal

of the record.

22

EXHIBIT A(5)

Rule 9.030(aX2), Florida Rules of Appellate Procedure

Rule 9.030. Jurisdiction of Courts.

(a) Jurisdiction of Supreme Court.

* * *

(2) Discretionary Jurisdiction. The discre-

tionary jurisdiction of the Supreme Court may be

sought to review:

(A) decisions of district courts of appeal that;°

(i) expressly declare valid a state statute;

(ii) expressly construe a provision of the state

or federal constitution;

(iii) expressly affect a class of constitutional

or state officers;

(iv) expressly and directly conflict with a

decision of another district court of appeal or of

the Supreme Court on the same question of law;

(v) pass upon a question certified to be of

great public importance.

(vi) are certified to be in direct conflict with

decisions of other district courts of appeal;

23

(B) orders and judgments of trial courts certified

by the district court of appeal in which the appeal

is pending to require immediate resolution by the

Supreme Court, and;°

(i) to be of great public importance, or

(ii) to have a great effect on the proper

administration of justice;

(C) questions of law certified by the Supreme

Court of the United States or a United States

Court of Appeals that are determinative of the

cause of action and for which there is no controlling

precedent of the Supreme Court of Florida.’

24

EXHIBIT B

Section 73.071(3Xb), Florida Statutes (1981)

73.071 Jury trial; compensation, severance damages. —

* * *

(3) The jury shall determine solely the amount of

compensation to be paid, which compensation shall include:

« x *

(b) Where less than the entire property is sought

to be appropriated, any damages to the remainder

caused by the taking, including, when the action is by

the Division of Road Operations of the Department of

Transportation, county, municipality, board, district or

other public body for the condemnation of a right-of-

way, and the effect of the taking of the property involved

may damage or destroy an established business of more

than 5 years’ standing, owned by the party whose

lands are being so taken, located upon adjoining lands

owned or held by such party, the probable damages to

such business which the denial of the use of the property

so taken may reasonably cause; any person claiming

the right to recover such special damages shall set

forth in his written defenses the nature and extent of

such damages; and

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EXHIBIT C

Rule 9.030(aX2XAXiXxiiXiv)

Florida Rules of Appellate Procedure

Rule 9.030. Jurisdiction of Courts

(a) Jurisdiction of Supreme Court.

* * *

(2) Discretionary Jurisdiction. The discre-

tionary jurisdiction of the Supreme Court may be

sought to review:

(A) decisions of district courts of appeal that;°

(i) expressly declare valid a state statute;

(ii) expressly construe a provision of the state

or federal constitution;

7 * *

(iv) expressly and directly conflict with a

decision of another district court of appeal or of

the Supreme Court on the same question of law;

* * *

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