The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

THE NEXT CASE ON THE COURT'S CALENDAR IS DOROTHY MURPHY, AND BRA BRA'S CREATIVE JEWELRY -VS- FLORIDA DEPARTMENT OF TRANSPORTATION. THESE CASES HAVE BEEN CONSOLIDATED. FOR ARGUMENT.

MS. BOULRIS, I UNDERSTAND YOU ARE GOING FIRST.

YES, URNS. -- YES, YOUR HONOR.

I, ALSO, UNDERSTAND YOU HAVE ASKED FOR SEVEN MINUTES, AND THEN MR. ULMER FOR SIX MINUTES FOR BARBARA'S CREATIVE JEWELRY.

THAT'S CORRECT, YOUR HONOR.

AND SEVEN MINUTES, THEN, FOR REBUTTAL.

THAT'S CORRECT.

YOU MAY PROCEED.

MAY IT PLEASE THE COURT, I AM AIM BRIGHAM BOULRIS. I -- I AM AIM BRIGHAM BOULRIS. I AM HERE REPRESENTING SEVERAL OF THE TENANTS. WITH ME IS MR. ULMER, WHO REPRESENTS SEVERAL OF THE TENANTS. WE HAVE A CERTIFIED QUESTION FOR YOU THIS MORNING WHICH QUERIES WHETHER A COURT MAY DEFER ITS RULING REGARDING EXTENT OF A TAKING UNTIL AFTER A JURY DETERMINES THE AMOUNTS OF COMPENSATION FOR A WHOLE OR PARTIAL TAKING, WHERE EXCESS CONDEMNATION IS SOUGHT BY THE GOVERNMENT.

LET ME ASK YOU, FIRST OF ALL, HOW WOULD THAT WORK, IN PRACTICE? WELL, IN REALITY, IF YOU ARE GOING TO DEFER THE -- WHETHER OR NOT A WHOLE TAKING SHOULD TAKE PLACE? ALLEGEDLY THE DEPARTMENT HAS AN ONGOING PROJECT, AND THEY WOULD AT LEAST NEED A PORTION OF THAT PARCEL FOR PURPOSES OF THE PROJECT. CORRECT?

CORRECT.

SO HOW WOULD IT WORK? THEY WOULD GET THE PORTION THAT THEY NEED FOR THE PROJECT? AND THEN WE WOULD DETERMINE WHETHER OR NOT THEY GET THE WHOLE PORTION?

WELL, THERE IS TWO WAYS THAT IT COULD WORK, YOUR HONOR. ONE WOULD BE FOR THE DEPARTMENT TO PLAN AHEAD AND FILE ITS PETITION FOR CONDEMNATION, PLEADING IN THE ALTERNATIVE, ENOUGH IN ADVANCE, TO HAVE THE JURY TRIAL THAT IS NECESSARY PRIOR TO ITS RIGHT-OF-WAY CLEARANCE NEEDS. CLEARLY THAT IS POSSIBLE, AS IT WAS IN THIS CASE.

IN THAT SITUATION, IN THE QUICK-TAKE STATUTE, IT WOULD BE OUT THE WINDOW?

NO, YOUR HONOR, AND I AM GLAD TO CLARIFY. THAT THE QUICK-TAKE STATUTE IS NOT REPUGNANT TO THAT PROCEDURE, LEGALLY OR AS WE HAVE ARGUED IN OUR BRIEFS. A QUICK-TAKE POSITION IS OBTAINING TITLE IN ADVANCE OF A FINAL JUDGMENT, NOT IN ADVANCE AFTER JURY TRIAL OR A VERDICT. I KNOW THAT SOUNDS LIKE AN ACADEMIC ANSWER, BUT IT IS TRUE, AND, ALSO, THE PRACTICAL ANSWER IS THAT, BECAUSE OF THE STATUTORY PREFERENCE GIVEN TO IMMINENT DOMAIN TRIALS OVERALL OTHER CIVIL ACTIONS, PROVIDED FOR IN 73.071, THE SAME SECTION THAT PROVIDES FOR JURY TRIAL, THE DEPARTMENT HAS THE ABILITY TO COME TO THE COURT AND EXPLAIN THE PROBLEM AND GET A JURY TRIAL.

IN QUICK-TAKE, I MAY BE USING THE WRONG TERM, SO FORGIVE ME, THIS IS NOT MY AREA OF SPECIALTY, ISN'T THE IDEA THAT THE D.O.T., IN ADVANCE OF THE DETERMINATION OF COMPENSATION, GETS TITLE TO THE PARCEL THAT THEY ARE SEEKING TO CONDEMN?

THAT WAS ALWAYS THE CASE, YOUR HONOR, BEFORE THE ENACTMENT OF THE EXCESS CONDEMNATION STATUTE, BECAUSE THE ONLY ISSUE EVER TO REACH A JURY WAS COMPENSATION AFTER THE COURT HAD DETERMINED THAT THE TAKING WAS A PUBLIC PURPOSE, BUT WHEN THE LEGISLATURE ENACTED 337.27, IT NECESSARILY REVERSED THEORD OTHER OF DISCUSSION OF THESE TWO ISSUES.

THAT IS MY -- ARE YOU, THEN, SAYING THAT, WHAT THE TRIAL JUDGE DID HERE AND WHAT JUDGE PAUL, IN HIS DISSENTES POUZ, IS AMATO-IN HIS DISSENT, ESPOUSES, IS A MEASURE OF WHAT THE LEGISLATURE INTENDED WHEN THEY ENACTED THE WHOLE QUICK QUICK-TAKE STATUTE? WE ARE NOT TALKING ABOUT A YIRB. WE ARE TALKING ABOUT LEGISLATE -- ABOUT AN ISSUE. WE ARE TALKING ABOUT LEGISLATIVE INTENT, AS TO HOW THEY INTENDED THE PROCEDURE TO TAKE PLACE?

THIS BOILS DOWN TO A QUESTION OF STATUTORY CONSTRUCTION AND LEGISLATIVE INTENT, NO DOUBT, AND OUR ARGUMENTS ARE THAT THE QUICK-TAKING STATUTE AND THE EXCESS CONDEMNATION CAN ALL BE GIVEN EFFECT IN THIS CASE, BUT THE CASE, ALSO, HAS IMPORTANT CONSTITUTIONAL ISSUES, BECAUSE THE ANSWER WILL BEAR DIRECTLY ON A CITIZEN'S RIGHT TO A JURY TRIAL AS A CIVIL LIBERTY ISSUE. THAT IS, ALSO, IMPORTANT TO US AND, I HOPE, TO THE COURT.

HOW DO YOU ANSWER THE ISSUE THAT IT HAS ALREADY BEEN DETERMINED THAT IT A VALID PUBLIC PURPOSE TO TAKE MORE THAN IS NEEDED FOR A PUBLIC USE. CORRECT? THAT THAT IS --

IT HAS BEEN DETERMINED AS A MATTER OF LAW.

CONSTITUTIONALLY. SO THEREFORE, THE PERSON WHO IS THE PROPERTY OWNER, THEIR RIGHT IS TO RECEIVE FULL COMPENSATION FOR THEIR PROPERTY AND NOT -- THERE IS NO CONSTITUTIONAL RIGHT TO RECEIVE BUSINESS DAMAGES OR SEVERANCE DAMAGES, SO HOW DO YOU -- THAT IS WHERE I AM HAVING TROUBLE, TO SEE WHERE THE CONSTITUTIONAL PROBLEM IS, AS OPPOSED TO SAYING THE LEGISLATURE COULDN'T ADMIT THAT THE DOT GETS TO JUST DETERMINE THIS, AND IT IS A GOOD FAITH. THEY HAD TO MEAN THAT THE JURY SHOULD DETERMINE WHAT THE TWO VALUES WERE?

I AM MORE THAN GLAD TO EXPLAIN THAT, BECAUSE THAT IS THE THEME OF THE MAJORITY OPINION AND THE DECHT'S BRIEF THAT, IF THE -- AND THE DEPARTMENT'S BRIEF, THAT IF THE COURT GRANTS EXCESS CONDEMNATION AND IN ORDER TO LEAVE TO THE JURY THE ISSUE OF THE WHOLE TAKING, THE MAJORITY BELOW AND THE DEPARTMENT CONTEND THAT ALL THE PROPERTY OWNER HAS LOST IS BUSINESS DAMAGES, TO WHICH HE IS NOT CONSTITUTIONALLY ENTITLED, AND I BELIEVE THAT IS A GLARING OVERSIGHT OF THE PRIMARY CONSTITUTIONAL PROPERTY RIGHT, WHICH IS NOT TO HAVE ONE'S PROPERTY TAKEN AT ALL, UNTIL A VALID PURPOSE, PUBLIC PURPOSE, IS ESTABLISHED, SO WHILE THE SAVINGS INTENDED BY THE STATUTE HAVE BEEN UPHELD AS A GENERAL NOTION, TO BE A VALID PUBLIC PURPOSE, THERE STILL NEEDS TO BE THAT PUBLIC PURPOSE THAT NEEDS TO BE ESTABLISHED ASAP APPLIED IN EACH CASE.

AND ONLY THE JURY -- BUT THERE, IF THE VALID PUBLIC PURPOSE HAS TO BE MET, AREN'T WE, REALLY, DEALING WITH, THOUGH, WHO THE TRIAL COURT OR THE JURY DETERMINES WHETHER IT IS A VALID PUBLIC PURPOSE?

CORRECT, AND WHILE THERE IS NOT A CONSTITUTIONAL RIGHT TO A JURY TRIAL IN THIS STATE, THERE IS A LONG-ESTABLISHED RIGHT TO A STATUTE BY JURY TRIAL. IF YOU GIVE FULL FORCE AND EFFECT OF BOTH OF THESE PROVISIONS WITH THE STATUTORY PREFERENCE I MENTIONED, IT IS QUITE POSSIBLE TO HAVE A JURY TRIAL THAT WILL ACTUALLY BE MORE EFFICIENT THAN THE PROCEDURE ADVOCATED BY THE D.O.T., PRIOR TO THE COURT'S APPLICATION OF THE EXCESS CONDEMNATION STATUTE, BUT BACK BACK TO YOUR VERY IMPORTANT QUESTION ABOUT WHAT IS AT STAKE HERE CONSTITUTIONALLY, NOT ONLY IS THE DUE PROCESS RIGHT TO RETAIN THE OWNERSHIP AND ENGIANT OF PRIVATE PROPERTY -- PRIOR TO PUBLIC PURPOSE, WHICH IS USING THE WORDING OF 9 THE STATUTE "WILL BE" THERE IS THAT CERTAINTY, ACCORDING TO PROCEDURES, ESTABLISHED BY LAW, OF HAVING THAT PROPERTY, ITSELF, WHAT IS LOST IN BUSINESS DAMAGE, WHICH IS NOT MERELY AN IN REM THING. IT IS A PERSONAL RIGHT AND AMONG THE FIRST FAMILY OF OUR CIVIL LIBERTIES. THE SECOND THING THAT IS LOST, AS TO BUSINESS DAMAGES, IS TO HAVE THEM QUANTIFIED BY A JURY. I DON'T CONTEST THE FACT THAT BUSINESS DAMAGES ARE NOT CONSTITUTIONALLY GUARANTEED IN THIS STATE, BUT THEY ARE GUARANTEED BY STATUTE, UNDER CERTAIN CONDITIONS, WHICH EXISTED IN THIS CASE. IF THEY DIDN'T, WE WOULDN'T BE HERE ON AN EXCESS CONDEMNATION. WE ARE ALSO TO PROVIDE THAT A JURY EQUATE COMPENSATION, AND SPECIFICALLY IN THAT IS BUSINESS DAMAGES. SO THE TWO THINGS LOST ARE THE PROPERTY, ITSELF, AND THE RIGHT TO HAVE THE JURY QUANTIFY BUSINESS DAMAGES. I HOPE THAT ANSWERS YOUR QUESTION. YOUR HONORS, THIS IS NOT JUST ABOUT THE TRIER OF FACT. THAT IS A VERY IMPORTANT CONSIDERATION, BUT IT IS, ALSO, ABOUT THE STATUTE OF REBUKE. EVEN IF YOU WERE TO DON'T THE NOTION THAT THIS SHOULD BE IN THE DISCRETION OF THE TRIAL JUDGE, CLARIFICATION ISN'T STILL NEEDED ON THE ISSUE OF WHAT STANDARD OF REVIEW WOULD GOVERN THE EXERCISE OF THAT DISCRETION? WOULD THE JUDGE BE REVIEWING THE FACTS FOR AN ABUSIVE DISCRETION FRAUD OR BAD FAITH, OR WOULD HE BE MAKING MORE OF ASSUMERY JUDGMENT ANALYSIS FOR A GENUINE -- MORE OF SUMMARY JUDGMENT ANALYSIS FOR A GENUINE CONTENTION OF FACT, AND THAT IS THE ISSUE HERE. I SEE I AM IN MY REBUTTAL TIME. ON THAT POINT I WOULD JUST SUGGEST THAT THE REASONS FOR DEFERENCE TO AGENCY DISCRETION NORMAL ENGINEERING NECESSITY ISSUES DON'T EXIST, WITH RESPECT TO CONDEMNATION, AND I WILL RESERVE THE REST OF MY TIME.

THANK YOU, COUNSEL. MR. ULMER.

GOOD MORNING, YOUR HONORS. MAY IT PLEASE THE COURT. MY NAME IS MARK ULMER. I AM HERE REPRESENTING TWO TEN AGETS INVOLVED IN THIS -- TENANTS INVOLVED IN THIS CONDEMNATION CASE, ARMANO CABRERA, WHICH WAS NOT INVOLVED IN THE AREA OF TAKING, AND BRA'S CREATIVE JEWELRY, INC., WHICH WAS INVOLVED IN THE TAKING. TO ANSWER THE QUESTION TO THE JURY IS THIS TAKING, JUST FOR THE ROAD, WOULD HAVE CAUSED THE LOSS OF NEARLY ALL OF THE JEWELRY PREMISES, BUT THE ACCOUNTANT IN THE BACK WOULD NOT HAVE BEEN TAKEN AT ALL. HE WOULD HAVE STILL BEEN THERE. HOWEVER, BECAUSE OF A POTENTIAL FOR HIM AND OTHER TENANTS IN THE BUILDING TO ASSERT A BUSINESS DAMAGE CLAIM, THE D.O.T. SOUGHT TO TAKE THE ENTIRE PROPERTY, THERE PIE TAKING THE ACCOUNTANT'S BUSINESS PREMISES, HIS LEASE HOLD -- THERE BY TAKING THE ACCOUNTANT'S BUSINESSES NES PREMISE, THERE BY TAKING THE ACCOUNTANT'S BUSINESS HOLDING, HIS LEASE HOLD IN THE BUSINESS, THERE BY TAKING ALL OF THE TENANTS ---.

WE DON'T HAVE THAT HERE, INSOFAR AS THE PROPERTY. REALIZING THAT WE HAVE IT IN THE BRIEF, BUT IT STRUCK ME, YOU KNOW, THE SIZE OF THE PROPERTY, THE SIZE OF THE BUILDING, BE -- AND, YOU KNOW, HOW MUCH OF THE TAKING OF THE PROPERTY WAS NECESSARY?

THE BUILDING WAS ESSENTIALLY CUT IN HALF.

HAURGE A BUILDING WAS IT?

A LITTLE -- HOW LARGE A BUILDING WAS IT?

A LITTLE OVER 2000 SQUARE FEET, AND A LITTLE LESS THAN HALF WOULD BE LEFT.

WOULD HAVE BEEN PHYSICALLY LEFT?

YES. IT IS STILL OUT THERE.

IS THEIR PROPERTY ADJACENT TO THE --

YES. THE EXHIBIT, WHICH IS ATTACHED TO THE DOT'S BRIEF IN BOTH CASES, SHOWS THE PARK WRAPPED AROUND THE BUILDING. THERE IS, ALSO, LAND AREA WRAPPED AROUND THE BACK. WHAT THE DOT'S PICTURE DOES NOT SHOW IS THE AMOUNT TAKEN, BUTES ESSENTIALALLY WHAT IS LEFT IS -- BUT ESSENTIALLY WHAT IS LEFT IS WHAT WAS OUT IN FRONT, IS WHAT WAS TAKEN.

AS FAR AS THE MOOT ISSUE, DO I UNDERSTAND THAT THERE WAS A PARTIAL TAKING, AND THEN HAS COMPENSATION FOR THE PARTIAL TAKING, INCLUDING BUSINESS DAMAGES, BEEN DETERMINED OR AGREED TO, THAT THEY ARE GOING TO PAY THAT, OR WHAT IS THE STATUS, SO THAT WE UNDERSTAND WHETHER THIS CASE IS --

THIS CASE WAS ORIGINALLY FILED AS SLOW TAKING. IT WAS, THEN, CONVERTED TO A QUICK TAKING. WE, THEN, HAD THE TRIAL BEFORE THE JUDGE. THE JUDGE DENIED --

A VERY SLOW TAKING. RIGHT?

YES. THE JUDGE DID NOT DENY THE ORDER OF TAKING, BY THE WAY. THE JUDGE MERELY SAID NOT NOW. HE DEFERRED IT UNTIL AFTER HE COULD ANSWER THE PREDICATE QUESTION, WHICH IS IS THE STATE GOING TO GOING TO SAVE MONEY BY TAKING THE ENTIRE PROPERTY? THE D.O.T., RATHER THAN PRESSING FORWARD WITH AN EXPEDITED TRIAL, TO HAVE THOSE ISSUES RESOLVED AND THE TAKING ISSUES FINALIZED, IS TO TAKE IT AND APPEAL IT, AND HERE WE ARE. DURING THE PENDENCY OF THE CASE THE JUDGE OFFERED TO TAKE HIM UP ON THE ROAD PARCEL TAKING THAT HE REMAND. THE JUDGE ORDERED A TAKING AS TO THE PARTIAL TAKING. THE D.O.T. MADE ITS DEPOSIT. THE PARTIAL TAKING OCCURRED AT THAT TIME. ALL OF THE TITLE ELEMENTS THAT YOU HAVE TO MEET FOR BUSINESS DAMAGES WERE MET. PARTIAL TAKING FOR A ROAD, IN BUSINESS FOR MORE THAN FIVE YEARS, ALL OF THESE CRITERIA WERE MET. THE APPEAL BECAME MOOT, BECAUSE A PARTIAL TAKING DID OCCUR. THE FOURTH DCA CAME TO A CONCLUSION AND USED WORDS OF ART IN THE OPINION THAT, EVEN THOUGH WE ASSERTED IT AS MOOT, IT WAS A POSITION THAT WAS YET CAPABLE OF REPETITION.

IS IT GOING TO BE, NOW, THOUGH, THAT THEY HAVE A RIGHT TO TAKE THE WHOLE PROPERTY, AND ARE WE BACK TO WHETHER THAT GETS DETERMINED BY A JURY OR NOT? IS THAT STILL OUT THERE?

I EXPECT THAT, IN THIS CASE, IF YOU DO WHAT WE ASK, WHICH IS QUASH THE DISTRICT COURT OPINION, AFFIRM THE TRIAL JUDGE'S RULING AND REMAND FOR A JURY TRIAL, THAT WE WILL GO FORWARD WITH A JURY TRIAL, SEEKING BUSINESS DAMAGES AND SEVERANCE DAMAGES. THE D.O.T. WILL, IN THE INTERIM, AFTER THE JURY VERDICT COME BACK, THEY WILL ASK THE JUDGE TO ENTER A TAKING AS TO THE REMAINDER, THERE BY MAKING IT A TOTAL TAKING, AND THEN ASSERT THAT WE ARE NOT ENTITLE ODD TO A BUSINESS DAMAGE.

I MEAN, IN A -- ENTITLED TO A BUSINESS DAMAGE.

IN A TRIAL LIKE THAT, YOU WOULD WANT TO BE ASSERTING HOW LARGE THE BUSINESSES ARE, THAT THE PROPERTY, HOW GREAT THE SEVERANCE DAMAGE IS. AREN'T YOU AND THE D.O.T. ON THE SIM SIDE, ONCE YOU ARE IN A TRIAL SITUATION?

ACTUALLY NOT. THE DO. IT IS IN THE -- THE D.O.T. IS IN THE EXACT OPPOSITE. THEY ARE COMING TO TRIAL ASSERTING THE PROCEDURE HERE, WHICH REQUIRES TWO TRIALS, HAS TURNED THE ENTIRE EMINENT DOMAIN PROCEEDING UPSIDE DOWN, AND IT PUTS THE PROPERTY OWNERS ON THE SIDE OF SEEKING THE LOWEST DAMAGES AND THE STATE ON THE SIDE OF SEEKING THE HIGHEST DAMAGES, AND THERE IS A SOLUTION, AND I BELIEVE IT WAS THE SOLUTION THE LEGISLATURE ADOPTED AT THE OUTSET AND THAT IS ONLY HAVE ONE TRIAL JUDGE AND IT IS ADOPTED AT TRIAL AND THAT WAY THE JURY MAKES A DETERMINATION AS TO PARTIAL TAKE AND TOTAL TAKE, WHICH THEY HAVE TO DO IN EVERY CIRCUMSTANCE.

ARE YOU SAYING THAT IS A BETTER IDEA? MAYBE I COULD AGREE AND SAY, WELL, THAT DOES SOUND LIKE A LOGICAL WAY TO DO IT, BUT AREN'T WE DEALING HERE WITH WHAT THE LEGISLATURE REALLY INTENDED AND WHETHER THIS IS A QUESTION THAT GOES TO PUBLIC PURPOSE AND NECESSITY, RATHER THAN COMPENSATION, AND THAT THE COURTS HAVE ALREADY SPOKEN ON THAT, AND WE NEED TO INTERPRET THOSE PRINCIPLES, IN LIGHT OF THE STATUTE, AS OPPOSED TO WHAT WE THINK IS THE BETTER IDEA?

NO, JUDGE. THIS DOES NOT DEAL WITH NECESSITY AT ALL. THIS WHOLE CASE IS ABOUT PUBLIC PURPOSE, AND THE PUBLIC PURPOSE IS DOES THE D.O.T. SAVE MONEY PIE TAKING THE ENTIRE PROPERTY, AND WE CAN'T ANSWER THE QUESTION UNTIL WE KNOW WHAT THE ALTERNATIVE TAKING COMPENSATION CLAIMS ARE GOING TO BE, BUT MY ARGUMENT, AND THIS IS WHERE I DO DI VERGE WITH THE PROPERTY OWNER,, I AGREE WITH THE PROPERTY OWNER'S ARGUMENTS ON JURY TRIAL, DUE PROCESS AND ALL OF THOSE, BUT I THINK THERE WAS A THRESHOLD ISSUE THAT THE FOURTH DCA MISSED COMPLETELY, AND THEY WERE WRONG, AND THAT IS THE TRIAL JUDGE FASHIONED A PROCEDURE TO ENSURE DUE PROCESS TO ALL OF THE PARTIES. HE HAS BROAD DISCRETION TO CONDUCT THE PROCEDURES IN HIS TRIAL COURT. THE FOURTH DCA DID NOT REVIEW HIM ON AN ABUSE OF DISCRETION STANDARD. THEY THREW HIM OUT THE DOOR, AND THEY WENT RIGHT DOWN TO THE FACTS THAT HE HAD BEFORE HIM, AT TRIAL, ON A TWO-DAY TRIAL, AND THEY REWEIGHED THE FACTS AND CAME TO THE OPPOSITE CONCLUSION THAT HE DID, AND ON THAT BASIS THEY REVERSED. THAT WAS IMPROPER, AND IT VIOLATES KINAKARIS -VS- KINAKARIS. THAT IS MY BELIEVE THAT THE APPELLATE COURT ISSUED THE WRONG REVIEW, THAT THE TRIAL COURT DID NOT ISSUE THE WRONG OPINION AND HE COULD HAVE BEEN AMPLED. ALL HE SAID -- AFFIRMED. ALL HE SAID WAS WHY HAVE TWO TRIALS? LET'S HAVE ONE TRIAL. THEY WILL TELL US WHAT THE COMPENSATION COSTS, THEN, ARE, AND I WILL TAKE THOSE NUMBERS AND PLUG IT INTO THE FORMULA AND SAY THIS IS GREAT ARE AND THIS IS LESS, AND THAT -- THIS IS GREATER AND THIS IS LESS, AND THIS IS WHERE WE WOULD HAVE BEEN A YEAR AGO, HAD THE FOURTH DCA NOT ISSUED ITS OPINION. I AM IN MY REBUTTAL TIME.

YES. MY NAME IS MARIANNE TRUSSELL AND WITH US IS THE TRIAL COUNSEL FROM FT. LAUDERDALE, SEVERAL THINGS WERE SAID ABOUT THIS STATUTE AND HOW TO GO ABOUT APPLYING T ALTHOUGH STATUTE WAS APPLIED BACK IN 1984, HOW TO DO ANYTHING ABOUT IT IS FEDERAL, AND THE REASON FOR THAT IS NOT AS ALLUDED TO IN SOME OF THE INITIAL BRIEFS, IS HOW IT WORKS AND EVERYBODY KNOWS IT WORKS PERFECT. THE REASON IS IT WAS UNWORKABLE AND EVERYTHING WE HAVE TRIED NEVER WORKED. MISS BOULRIS SAID IN THE ALTERNATIVE, WHEN WE TRIED IT, THE TRIAL JUDGE SAID YOU CAN'T MAKE UP YOUR MIND WHETHER YOU NEED A WHOLE TAKE OR A PART TAKE, YOU DON'T NEED THE WHOLE AND SO THEREFORE YOU ONLY GET THE PART TAKE, ANYWAY.

WOULD YOU EXPLAIN THAT, BECAUSE YOU MENTION IN YOUR BRIEF AND YOU SAY THE STATUTE IS NOT WORKING, BECAUSE YOU CAN'T FIND OUT, IN MOST CASES, WHAT THE BUSINESS DAMAGES ARE. YOU GO TO THE LANDOWNERS OR THE PROPERTY OWNERS AND THEY ARE NOT GIVING UP THEIR RECORDS, AND THAT IS CREATING A PROBLEM.

ABSOLUTELY.

WELL, THEN, ISN'T THE SOLUTION, TO GO TO THE LEGISLATURE, TO READJUST THE STATUTE, RATHER THAN HAVE US TRY TO FIGURE OUT -- I MEAN, WHY ISN'T THIS AN ABUSE OF DISCRETION ISSUE, AND WAS JUST MENTIONED, THAT THE TRIAL COURT, AFTER TWO DAYS, REALLY COULDN'T FIGURE IT OUT AND SAID, YOU KNOW, IT IS JUST GOING TO BE A BETTER PROCESS, IF WE HAVE GOT THIS ALL FERRETED OUT IN FRONT OF A JURY, AND THEN I WILL MAKE MY DECISION?

WELL, THERE ARE SEVERAL QUESTIONS THAT YOU ASKED IN THERE. ONE IS UNFORTUNATELY THE LEGISLATURE USUALLY FIXED THIS, BY THROWING OUT THE STATUTE EFFECTIVE JANUARY. IT IS NOT THERE ANY MORE, AS OF JANUARY 1, 2000. THE STATUTE IS GONE.

SO SHOULD THIS CASE BE GONE, THEN?

NO. I WOULD LIKE THIS CASE TO STAY JUST AS IT IS, AND I WOULD LIKE --

THAT SOUNDS MOOT TO ME.

IT IS NOT FOR THIS CASE, AND THERE ARE, STILL, A FEW CASES OUT THERE, ALTHOUGH THIS OPINION PROBABLY WON'T REACH IT BEFORE JANUARY 1, BECAUSE NOBODY IS GOING TO FILED THEM AFTER JANUARY 1, BUT, SO -- IS GOING TO FILE THEM AFTER JANUARY 1, BUT, SO TO FIX IT ANY OTHER WAY IS MEANINGLESS AT THIS POINT, UNLESS SOME LEGISLATURE, A FEW YEARS FROM NOW, DECIDES IT WANTS SOMETHING DIFFERENT AND WE CRAFT A NEW STATUTE ALL TOGETHER.

SO THERE IS NOT GOING TO A WHOLE TAKE.

THERE WILL ONLY BE WHOLE TAKE WHEN IT IS NECESSITATED FOR THE PROJECT. THERE WILL NO LONGER BE EXCESS CONDEMNATION IN ORDER TO SAVE MONEY?

CAN YOU ADVISE WHY THIS COURT SHOULD BE ANSWERING THIS QUESTION. APPARENTLY THIS STATUTE DIDN'T WORK FOR 15 YEARS, AND WHY SHOULD WE ANSWER THE QUESTION OF THE 4TH DISTRICT?

WELL, I THINK IT NEEDS TO BE ANSWERED FOR THIS CASE, AND TO PREVENT THE CASES THAT ARE IN THE WORKS NOW FROM BEING TAKEN UP ON APPEAL, WHEN THIS COURT'S DECISION IS RENDERED. ONCE --

WHY DID MR. ULMER HAVE A PRETTY GOOD POINT HERE AS TO THE FACT THAT YOU STREAMLINE THIS PROCESS, BY ALLOWING THIS MATTER TO PROCEED TO A FACTUAL DETERMINATION, BY THE JURY, BY JURY, IMMEDIATELY, AND THEREFORE THESE QUESTIONS THAT ARE WRAPPED UP IN VALUE, WHETHER THEY ARE RECOGNIZING THEY ARE NOT COMPENSATION ISSUES BUT THEY ARE QUESTIONS OF VALUE, WHY DON'T YOU JUST -- WHY ISN'T IT A BETTER PROCEDURE TO ALLOW THOSE IMMEDIATELY TO BE DETERMINED, AND THEN YOU HAVE THE WHOLE PICTURE, THERE, BEFORE THE TRIAL JUDGE?

THAT WAS PRECISELY WHAT JUDGE WARN HE, WHEN SHE -- JUDGE WARNER, WHEN SHE WROTE FOR THE MAJORITY IN THE CASE, SAID YOU ARE CONFUSING. THE JURY WASN'T DECIDING, AND JUSTICE PARIENTE SAID THAT THIS CASE, LIKE MILLER AND A BUNCH, ISN'T NECESSARILY FOR THE TRIAL JUDGE TO DECIDE.

THAT IS A MIXED QUESTION OF FACT AND LAW, ISN'T IT, IN THIS INSTANCE, IN THE WAY THIS STATUTE WAS CRAFTED? THAT BECOMES A FACTUAL DETERMINATION, DOES IT NOT, A PART OF IT THEN?

WELL, A PART OF IT HAS TO BE FACTUAL, BUT THE CASES THAT COME BEFORE FORTUNE FEDERAL AND THE STATUTE ALL SAY THAT THE DEPARTMENT HAS THE CONDEMNING AUTHORITY, NOT ALL CONDEMNING AUTHORITIES HAD THE FORTUNE OR THE WHOLE TAKE EXCESS CONDEMNATION AUTHORITY, SO IT IS, USUALLY, THE DEPARTMENT, AND WE DO MOST OF THE CONDEMNATION IN THE STATE, SO THE STATE HAS THE BURDEN OF COMING FORTH AND SHOWING A REASONABLE NECESSITY AND PUBLIC PURPOSE, AND THAT IS WHAT THE STATUTE SAYS, THAT THERE IS A PUBLIC PURPOSE TO SAVING ALL OF THESE ACQUISITION COSTS, AND SO IF THAT IS PUBLIC PURPOSE DETERMINATION, THEN THAT IS DETERMINATION TAKE THE -- THAT THE CASE LAW SAYS THAT IS A QUESTION FOR THE TRIAL COURT TO DETERMINE. THE JUDGE RECOGNIZED THAT YOU BUT HE WASN'T ABLE TO TAKE THE BULL BY THE HORNS SANE I AM NOT GETTING WHAT I WANT FROM THE EXPERTS. WHY DOESN'T SOMEBODY COME UP HERE AND SAY THE D.O.T. IS WRONG IN ALL OF THEIR NUMBERS? AND THE EXPERTS WOULDN'T. THE EXPERTS GAVE A WHOLE NUMBER SO THEY COULD ARRANGE FOR A TAKE, AND THEN THEY GAVE A HIGH NUMBER, SO THEY COULD GO IN FRONT OF A JURY AND GET EXCESS COMPENSATION. THAT IS JUST LIKE JUSTICE PERRY. THAT IS WHAT IS GOING ON HERE. EXPERTS AREN'T GIVING A PARTICULAR RANGES WITH A $150,000 SPREAD. THE EXPERTS GAVE WHAT THEY WANT HERE NOT TO LOCK THEMSELVES INTO BUSINESS DAMAGE, IF THEY WOULD LOSE THE WHOLE ISSUE AND THEN WE WOULD HAVE TO GO AND TRY IT, BECAUSE THEN THEY WOULD COME UP WITH THE TESTIMONY YOU ARE SAYING $50,000 HERE AND NOW WHY ARE YOU SAYING IT IS $1350,000?

BUT IN THE -- YOU SAYING IT IS NOW $150,000?

BUT IN THE TRIAL PROCESS, THE D.O.T. WOULD BE ARGUING FOR THE HIGH NUMBER AND THE PROPERTY OWNER FOR THE LOWER NUMBER, AND THEN, IF IT IS -- EVERYONE IS, REALLY, SCREWED UP, IF THE OPPOSITE RESULT OCCURS. RIGHT?

WHICH IS WHY YOU HAVE TO JUST SAY DID THE D.O.T. PUT ON A NUMBER AND THE JUDGE SAYS THAT IT SHOWS REASONABLE NECESSITY, REASONABLE PUBLIC PURPOSE. ALL 69 THE CASES SAY YOU CAN'T -- ALL OF THE CASES SAY YOU CAN'T GET ABSOLUTE. THERE ARE NO ABSOLUTES. THEN YOU GET THE PROPERTY OWNER TO COUP AND SAY WAS THERE DISCRETION? WAS THERE BAD FAITH? AND THE CASES SAY, NOT FORTUNE FEDERAL CASES, BECAUSE WE DON'T. WE HAVE TO EXTRAPOLATE THIS LUNG FROM BUNCH AND MILLER AND THOSE THAT TALK ABOUT -- WE HAVE TO EXTRAPOLATE THIS FROM BUNCH AND MILLER AND THOSE. IF THERE WAS A CHOICE TO BE MADE, THEN YOU ARE ASSUMING THAT THE CONDEMNING AUTHORITY MADE THE CHOICE AND THE CHOICE WAS REASONABLE AND IT STAYED IN PLACE. NOW, TO SAY THAT WE CAN GO AND USE THIS AS PROBABLY, SO THAT -- USE THIS AS WILL PROCEDURAL, SO THAT YOU GET IN FRONT OF ONE TRIAL JUDGE AND SAY I WILL DECIDE TODAY BASED ON THESE NUMBERS, BUT THEN DO YOU ARGUE TO THE JURY THAT THE REASON FOR THESE NUMBERS IS YOU ARE TRYING TO DETERMINE WHETHER IT IS GOING TO BE PARTIAL TAKING OR ALL OF THE PROPERTY?

IT MIGHT MAKE YOUR LIFE EASIER FOR THE FEW DAYS CASES THAT ARE IN THE -- FOR THE FEW CASES THAT ARE IN THE PIPELINE, BUT AS I SIT HERE, IF IT IS GOING TO BE OFF THE RADAR SCREEN IN ANOTHER FEW MONTHS, WHAT OTHER PRINCIPLE OF LAW, I GUESS, IS OPERATING HERE THAT SHOULD COMPEL US TO DECIDE THIS CASE? IF IT IS A STATUTORY INTERPRETATION AND IT IS JUST A SIMPLE, YOUR ISSUE IS THAT, BECAUSE IT GOES TO PUBLIC PURPOSE, IT HAS GOT TO BE A JUDGE DETERMINATION, AND THAT IS WHAT HAS BEEN TRADITIONALLY THE LAW. IS THAT WHAT IT BOILS DOWN TO?

THAT IS CORRECT, AND THAT IS WHAT THE MAJORITY OPINION SAID IN THE FOURTH, JUDGE WARNER AND JUDGE DEL AGREED AND JUDGE PAUL DISSENTED AND SAID, NO, YOU ARE PUTTING THE CART BEFORE THE HORSE.

BUT ISN'T THERE A PROBLEM HERE, AS I THINK YOU INDICATED, THAT EVERYBODY, EVEN THOUGH THIS STATUTE WAS ENACTED IN, WHAT, '84?

'84, YES, SIR.

THAT IT HAS PROVEN TO BE UNWORKABLE, BUT HASN'T PART OF THAT BEEN THAT DOT HASN'T TAKEN THE SAME POSITION, HERE, THROUGHOUT THE HISTORY OF THIS, AND THAT IF THE D.O.T., IN THE VERY BEGINNING, HAD SAID, ALL RIGHT, WE ARE GOING TO HAVE OUR FIRST TEST CASE, AND THIS IS THE WAY WE ARE GOING TO INTERPRET IT, TO BE THAT WE HAVE TO JUST GO AND SHOW GOOD FAITH AND LET THIS THING GET CHALLENGED, YOU KNOW, THROUGH THE COURTS, AND THEN WE WILL HAVE ONE WAY TO GO. WE WILL GET THE COURTS TO HAVE TO INTERPRET THIS STATUTE WITHIN THE CONSTITUTIONAL FRAMEWORK OR WHATEVER, BUT, INSTEAD, HASN'T THERE BEEN, REALLY, DO THE D.O.T., IN APPARENTLY TRYING TO MAKE IT WORK, HA TAKEN ALL KINDS OF DIFFERENT POSITIONS, HAVE THEY NOT?

WE ARE A CENTRALIZED AGENCY. WE HAVE SEVEN DISTRICTS THROUGHOUT THE STATE, AND IT IS HARD TO GET CONSENSUS, BECAUSE INSERT COURTS, THE D.O.T. CAN GO IN AND MAKE A SHOWING, JUST LIKE WE TRIED TO DO HERE, AND THE TRIAL JUDGE SAID YOU MADE YOUR SHOWING. THERE IS NO ABUSE OF DISCRETION. THERE IS NO SHOWING OF BAD FAITH. YOU GET THE WHOLE TAKING. OTHER COURTS SAY, NO, YOU HAVE GOT TO GO THROUGH THIS, AND EVERY TENANT AND PROPERTY OWNER KNOWS THAT THE D.O.T. IS PRODUCTION DRIVEN. ALL THEY HAVE TO DO IS DRAG THEIR FEET AND NOT GIVE US ANY BUSINESS RECORD, WHICH GOES BACK TO YOUR QUESTION, JUSTICE PARIENTE, IS BUSINESS RECORD. THEY WAIT AND WAIT. HOW CAN YOU MAKE A DETERMINATION HOW MUCH MONEY YOU COULD SAVE AND WHAT THE ACQUISITION COSTS ARE, IF THE BUSINESS --

CONVINCE ME, AGAIN, WHY WE SHOULD KEEP THIS CASE, NOW THAT THE LEGISLATURE HAS THROWN UP THEIR HANDS? IN OTHER WORDS WE ARE NOT USUALLY IN THE BUSINESS OF JUST KEEPING THE CASE SO THAT WE CAN RESOLVE ONE DISPUTE OR EVEN TWO. THIS CASE, IN ESSENCE, BY DT GOING BACK DOWN A -- BY THE D.O.T. GOING BACK DOWN AND ACCEPTING IT, YOU KNOW, AS A QUICK TAKE, HAS REALLY RESOLVED IT, HAS IT NOT? SO WE ARE JUST GOING TO TAKE THAT PART?

WE TRIED OUR BEST. YOU SAID THE D.O.T. TRIES DIFFERENT THINGS, AND YOU WAITED SO LONG, BUT WE DID TRY, THE BEST THAT WE COULD DO, TO GET A CASE THAT WAS CLEAN, AND WE HAD NO IDEA THE STATUTE WAS GOING TO BE GOTTEN RID OF IN THIS LAST LEGISLATIVE SESSION, BUT WE DIDN'T WANT TO AGREE, IN THE BEGINNING, TO TAKE A PARTIAL, BECAUSE WE WANTED TO COME TO THE COURT WITH THE CASE, AS WE WOULD ENVISION IT.

I AM NOT FAULTING, YOU KNOW, BELIEVE ME, WITH ALL OF THE HEADACHES OUT THERE AND ALL, WHAT I AM TALKING ABOUT, NOW, THOUGH, IS WHAT REAL PURPOSE IS THERE IN US GOING AHEAD AND ENUNCIATING THE LAW, INTERPRETING THIS STATUTE, WHEN IT IS GONE?

WELL, OTHER THAN THE FACT THAT IT WOULD BE GREAT TO SAY WE WERE RIGHT. BUT THAT DOESN'T SOLVE THE PROBLEM FOR THIS COURT. ONLY THAT IT WOULD RESOLVE THIS CASE AND ANY OTHER CASES THAT ARE IN OUR DISTRICTS THAT ARE IN THE WORKS NOW, THAT WOULD RESULT IN AN APPEAL.

BUT FROM YOUR POINT OF VIEW, IF WE DISCHARGE JURISDICTION, THE FOURTH DISTRICT OPINION WOULD STAND, CORRECT?

THAT'S CORRECT.

SO THAT WOULDN'T HARM YOU. HOW ABOUT THE MOOTNESS ISSUE? THERE IS A CLAIM BY THE D.O.T. THAT THE EXCEPTION IS BECAUSE IT IS COLLATERAL LEGAL CONSEQUENCES, AND I DON'T UNDERSTAND WHAT THAT MEANS, AS REGARDS TO THIS CASE.

COLLATERAL LEGAL CONSEQUENCES DOESN'T SOUND LIKE A PHRASE I USE. MAYBE IT WAS --

WHY IS THIS NOT MOOT?

WELL, I THINK THAT THE FOURTH DCA'S OPINION IS THE FOOTNOTES THAT MAKE IT CONFUSING. ALTHOUGH THEY SAY, YES, WE ARE GOING TO LET IT GO BACK FOR THE PARTIAL TAKE, WHICH WE HAVE DONE, AND I BELIEVE THEY HAVE EVEN BOARDED UP AND FIXED THE SIDE OF THE BUILDING, BECAUSE YOU COULDN'T JUST LEAVE IT LIKE THABS, BECAUSE GRIFFIN ROAD HAS TO BE WIDENED, AND IT HAS TO BE DONE NOW, SO THEY HAVE TO DO SOMETHING IN THE INTERIM, BUT IT IS THE FOOTNOTE THAT SAYS SOMETHING ABOUT WE ARE GOING TO SEND IT BACK AND WE ARE GOING TO LET THEM HAVE THE PARTIAL TAKING, EXCEPT THAT, IN THE RELIEF, IT DOESN'T SAY, "AND THEREFORE THIS CASE IS MOOT AND THE D.O.T. SHALL NOT HAVE A WHOLE TAKE." IT SAYS THAT THEY REVERSE THE ORDER OF THE TRIAL COURT, WHO SAID THAT WE COULDN'T HAVE A WHOLE TAKE.

BUT, AGAIN, YOU ARE JUST TALKING ABOUT THIS CASE, NOW, ARE YOU NOT? AS FAR AS THE LAW IS CONCERNED, YOU HAVE WON LIKE KING KONG OUT IN THE 4TH DISTRICT. HAVE YOU NOT? YOU HAVE GOT A RULE COMING OUT OF THERE THAT SAYS, AS LONG AS WE ARE IN GOOD FAITH, THE TRIAL JUDGE DECIDES IT INITIALLY, NO JURY INVOLVEMENT, I MEAN, THAT IS --

YES. WE ARE IN BETTER SHAPE THAN WE HAVE EVER BEEN.

YOU ARE JUST TALKING ABOUT PROBLEMS WITH A PARTICULAR CASE. ARE YOU NOT?

NOT THIS PARTICULAR CASE, BUT FOR THE PROCEDURE FOR THE REST OF THE YEAR. THAT EVEN THOUGH THIS CASE WON'T BE DECIDED BEFORE THE END OF THE YEAR, OUR DISTRICTS WILL BE OUT THERE, TRYING TO DO FORTUNE FEDERAL WHOLE TAKES, AND DEPENDING ON THE OPINION THAT COMES OUT OF THIS COURT OR NO OPINION TO HOLD ON TO THE FOURTH, WILL DETERMINE WHETHER THE D.O.T. OR PROPERTY OWNERS WILL BE ENTITLED TO SEEK FURTHER REVIEW FROM THOSE TRIAL JUDGE DECISIONS, SO WHATEVER NUMBER OF CASES WE ARE TALKING ABOUT THAT ARE IN THE WORKS NOW, OR HAVE BEEN IN SINCE, PROBABLY, EARLY SPRING, THAT THEY HAVE BEEN WORKING TOWARD SOME OF THESE CASES, AND THE ONES THAT WILL BE FILED FROM NOW UNTIL THE END OF THE YEAR. THOSE ARE THE ONLY ONES THAT ARE GOING TO BE IMPACTED. YES, I WILL HAVE TO ACKNOWLEDGE THAT IT IS A LIMITED NUMBER OF CASES AND IT WILL BE LIMITED IMPACT THAT WOULD COME FROM THIS COURT.

THAT WOULD MEAN THAT WE WOULD HAVE TO GET OUR DECISION OUT BEFORE JANUARY 1, FOR THIS TO HAVE ANY SIGNIFICANCE FOR THE DOT.

WELL, IT WOULD AD AT LEAST DECIDE, AT LEAST FOR THE D.O.T., WOULD FILE ANY NOISE OF APPEAL ON WHAT TRIAL JUDGES HAVE RENDERED AND DETERMINE WHETHER TO GO FORWARD WITH THEM, AFTER THE FIRST OF THE YEAR, IF THIS COURT HASN'T RENDERED A DECISION PRIOR TO THAT TIME, YES, SO NOTWITHSTANDING THE FACT THAT THIS CASE DOES NOT HAVE THE IMPACT THAT IT ORIGINALLY THOUGHT TO DO, WHICH IS WHAT WE WERE TRYING TO DO IN THE FIRST PLACE, IS WHY WE TOOK THE STEPS THAT WE DID, AND WE TOOK THE TIME THAT WE DID WITH THIS CASE. WE ASKED FOR EXPEDITED DISPOSITION IN THE FOURTH DCA, HOPING THAT THIS CASE COULD MOVE ALONG, AND ONCE AGAIN, PRODUCTION OVERRODE EVERYTHING THAT COULD HAPPEN IN THIS CASE AND THROUGHOUT THE YEAR, IN EFFECT, THAT THEY WOULD DELAY LONG ENOUGH AND THE D.O.T. COULD SAY, FINE, WE WILL TAKE THIS PROPERTY AND WELL GO AHEAD AND GET THE ROAD -- AND WE WILL GO AHEAD AND GET THE ROAD BUILT AND WE WILL PAY ALL DAMAGES, WHICH IS SEVERANCE FEES AND DAMAGES AND BUSINESS DAMAGES, WHICH IS WHY THIS COURT THOUGHT THEY WOULD HAVE THE OPPORTUNITY TO DO WHEN THEY ENACKED 327 IN THE FIRST PLACE, SO I WOULD ASK THE COURT TO AFFIRM WHAT THE FOURTH DCA SAID THAT PUBLIC PURPOSES SHOULD BE DETERMINED BY THE TRIAL COURT NOT BY A JURY, THAT THESE ARE NOT COMPENSATION ISSUES, THAT TO AT LEAST AFFIRM THE FOURTH DCA'S OPINION.

DO YOU KNOW WHY IT WAS REPEALED?

ALL I CAN SAY IS THERE WAS A LOT OF NEGOTIATIONS GOING ON WITH ALL OF IMMINENT DOMAIN CASES, WHICH WAS THE LAST SESSION, ALSO, AND I THINK IT JUST GOT INTO THE BARGAINING POOL, AND IT WAS ONE OF THE STATUTES THAT WAS -- THE TWO FAX OF BUSINESS OWNERS AND CONDEMNING AUTHORITIES SAW THAT IT WASN'T BEING UTILIZED AS MUCH AND THAT IT WAS NOT FIGHTING OVER IN EXCHANGE FOR SOMETHING ELSE THAT -- THAT IS ONLY MY SUMMATION BECAUSE I HATED TO BE IN ON ANY OF THOSE MEETINGS THAT TALKED ABOUT IT. THANK YOU.

THANK YOU. REBUTTAL.

MY TIME IS VERY SHORT BUT I MAY DEVOTE IT ENTIRELY AS TO EXPLAINING WHY THIS COURT SHOULD STILL DECIDE THIS CASE, BECAUSE I DO BELIEVE THE JURY BELOW DID A KING KONG ON THE CONSTITUTIONAL DUE PROCESS RIGHTS AND THE STATUTORY RIGHT TO TRIAL, AND WHILE THAT IS VERY IMPORTANT TO CASES IN THE PIPELINE, I WOULD NOTE THE REVEAL PEEL -- THE REPEAL ONLY AFFECTS CASES FILED AFTER JANUARY 2000 AND THERE IS NOT ONLY CASES IN THE WORKS BY THE DEPARTMENT BUT BY COUNTIES AND MUNICIPALITIES THAT HAD THE SAME RIGHT, UNDER 337.27 THAT ARE STATEWIDE, BUT, ALSO, BECAUSE, AND THIS IS PROBABLY MOST SIGNIFICANT TO THE COURT, THIS COURT, IN 1992, ISSUED THE OCALA -VS- NIGH DECISION, WHICH HELD THAT MUNICIPALITIES, OF WHICH THERE ARE MANY IN THIS STATE, DO NOT NEED A SPECIFIC LEGISLATIVE GRANT OF EXCESS CONDEMNATION POWER, IN ORDER TO PURSUE IT, BECAUSE OF THEIR UNIQUE CONSTITUTIONAL HOME RULE POWERS. STATE AGENCIES AND COUNTIES NEED A LEGISLATIVE GRANT, BECAUSE THE POWER REMAINS IN THE LEGISLATURE, BUT NOT IN MAUN MUNNIESPALITIES, SO IT STILL REMAINS A VERY IMPORTANT QUESTION AND A DIRE NEED FOR COMMUNICATION. THIS IS BEING HANDLED DIFFERENTLY AROUND THE STATE, SO I URGE THE COURT TO RETAIN THE JURY DICTION AND DECIDE THE ISSUE. I WILL DEVOTE MY REMAINING TEN SECONDS TO NOTE THAT THE PROBLEMS ENCOUNTERED AT TRIAL LEVEL, HERE, ARE THE VERY REASON WHY WE NEED ONE SINGLE TRIAL, SOUGHT PARTIES TAKE ONE POSITION, AND THESE ARE NOT ENGINEERING ISSUES ON WHICH THE CONDEMNOR HAS EXPERTISE. I THANK THE COURT FOR ITS TIME.

THANK YOU. MR. ULMER.

MR. CHIEF JUSTICE, THIS IS NOT MOOT, BECAUSE THE STATUTE WAS REPEALED, AS MISS BOULRIS SAID, IT CONTINUES TO BE APPLICABLE TO MUNICIPALITIES, DUE TO THE HOME RULE CASE AND THE CASE THAT YOU DECIDED, SO IT MAY BE MOOT AS TO DOT, BUT IT IS CERTAINLY NOT MOOT AS TO THESE PROPERTY OWNERS AND TENTS TENANTS.

DO THE PROPERTY OWNERS NOT HOLD TO THE SAME STATUTE?

NO. THIS COURT, IN THE NIGH -VS- THE CITY OF OCALA THAT THE CITIES DERIVE THEIR POWER DIRECTLY FROM THE CONSTITUTION AND AS LONG AS IT SERVES A MUNICIPAL PURPOSE, THAT IT CAN EFFECT CONDEMNATION, AND THIS COURT FOUND MUNICIPAL PURPOSE AS TAKING MORE THAN NECESSARY, IF BY SO DOING THE ACQUISITION COMES ARE SO BEEN REDUCED.

BUT ARE WE REALLY CONSTRUING THE STATUTE THAT THIS IS THE EXTENT THAT THE OPINION IS NARROW, BY SAY HAD GONE THIS IS THE STATUTORY CONSTRUCTION. THAT WOULD NOT AFFECT THE MUNICIPAL?

IT WOULD NOT AFFECT MUNICIPALITIES. DIFFERENT STATUTE. THAT STATUTE IS STILL ON THE BOOKS. IT IS THE HOME RULE PROVISIONS. ADDITIONALLY, YOU HEARD FROM THE DOT THERE WILL AND RUSH TO THE COURTHOUSE BEFORE JANUARY, WHEN THE NEW STATUTE GOES INTO EFFECT. THEY ARE LOOKING AT ALL OF THE CASES, TO SEE WHICH ONES NEED TO GET IN NOW. THEY ARE LOOKING AT THIS. IT IS NOT JUST THIS CASE. THEY ARE LOOKING AT OTHER CASES THAT NEED TO BE LOOKED AT. THERE IS STILL AN ISSUE OUT THERE THAT NEEDS TO BE CLARIFIED. ON THE PERSONAL LEVEL, WE ARE THE PETITIONERS HERE AND WE ARE THE ONES THAT SOUGHT REVIEW OF THIS CERTIFIED QUESTION. AT A MINIMUM, IF YOU WANT TO FIND THAT YOU DON'T WANT TO ANSWER THE CERTIFIED QUESTION, AT LEAST FIND THAT IT IS MOOT AS TO THESE PETITIONERS, DUE TO THE ENTRY OF A PARTIAL TAKING, ORDER OF TAKING, THE FACT THAT THE BUILDING HAS BEEN CUT. THE BUILDING HAS BEEN REFACED. THE DAMAGES WERE INFLICTED. THE DAMAGES WERE VESTED. WE NEED TO GO ON TO TRIAL.

ISN'T THAT SOMETHING, REALLY, THE 4TH DISTRICT SHOULD BE CONSIDERING, AND THAT IS WHETHER YOU CAN GO AHEAD AND NOW GET YOUR BUSINESS DAMAGES, AND I ASSUME THAT IS WHAT YOU ARE SAYING, GET YOUR BUSINESS DAMAGES -VS- THEY PURSUE A WHOLE TAKE. IS THAT SOMETHING --

I BELIEVE THAT THEY HAVE SAID IT, AND I BELIEVE THAT THEY HAVE SAID IT IN THE FOOTNOTES OF THE ONE BRIEF. CAPABLE OF REPETITION YET REMAINING REVIEW. THERE IS A LARGE DIFFERENCE BETWEEN PUBLIC NECESSITY AND PUBLIC PURPOSE. IF I COULD JUST TELL YOU ONE HYPOTHETICAL, I KNOW MY TIME IS UP, BUT LET ME GIVE A HYPOTHETICAL. LET'S SAY THAT THE D.O.T. CAME TO TRIAL AND THEY SAID THE TOTAL VALUE OF THIS PROPERTY IS $100,000, AND A PARTIAL TAKING, JUST FOR THE ROAD PARCEL, IS $80,000 WORTH OF SEVERANCE DAMAGES AND $40,000 WORTH OF BUSINESS DAMAGES. THEREFORE IN A PARTIAL TAKING, 80 PLUS 40 IS $120,000. THAT IS MORE THAN A TOTAL TAKING OF $100,000. THEREFORE WE WILL SAVE MONEY WITH A TOTAL TAKING. GIVE US A TOTAL TAKING. THE JUDGE SAYS FINE. WE GO TO TRIAL. WE COME TO TRIAL AND SAY THE TOTAL TAKING THAT, PROPERTY IS WORTH $200,000. THE D.O.T. SAYS, NO, IT IS $100,000, AND THE JURY AWARDS $200,000. BECAUSE IT WAS A TOTAL TAKING, THE STATE HAS SPENT MORE MONEY. THERE IS NO PUBLIC PURPOSE. THAT IS THE PROBLEM WITH THE DOT'S INTERPRETATION.

THANK YOU, COUNSEL.

THANK YOU TO ALL COUNSEL IN THIS ISSUE.