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Keywords

damagestrialpartnership
contractplaintiffdefendantdamagesstatutetrialcompensatory damagesappellee

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Fiske v. Moczik, 329 So.2d 35

Facts

Mrs. Moczik, a limited partner in a partnership that owned land, sold palm trees to the Nursery without authority. The partnership later sold the land to Fiske, who claimed that 55 trees were removed from his property after his purchase. Fiske sued the Nursery for damages, which led to a series of claims and counterclaims involving the authority to sell the trees and the proper measure of damages for their removal.

On August 10, 1972, Mrs. Moczik sold the appellee Nursery some palm trees growing on land where she lived. The contract price was $50 per tree; however, the contract did not specify any date for their removal.

Issue

The main legal issue was the proper measure of damages to be assessed against the Nursery for the unauthorized removal of palm trees from Fiske's property.

The main legal issue was the proper measure of damages to be assessed against the Nursery for the unauthorized removal of palm trees from Fiske's property.

Rule

The court applied the principle that the measure of damages for the removal of trees can be based on the difference in value of the property before and after the removal, or the replacement cost of the trees themselves.

The measure of damages for removal of ornamental trees is the difference in value of the property immediately before and after the taking.

Analysis

The court found that the trial court erred in limiting damages to loss of comfort and convenience rather than considering the actual value of the trees removed. It emphasized that the reasonable cost of replacing the trees should be the basis for damages, as the removal of the trees would decrease the market value of the land.

The court found that the trial court erred in limiting damages to loss of comfort and convenience rather than considering the actual value of the trees removed.

Conclusion

The court affirmed the findings that the Nursery had no authority to remove the trees and that Mrs. Moczik lacked authority to sell them. However, it reversed the trial court's determination of damages and remanded for a new trial to assess the replacement cost of the trees.

We affirm the trial judge's findings that the defendant Moczik had no authority to sell and the defendant Nursery was without authority to remove 55 palm trees from the plaintiff's land.

Who won?

Fiske prevailed in the case as he was entitled to recover damages for the unauthorized removal of his trees, with the court recognizing the need for a new trial to determine the appropriate amount.

Fiske is awarded compensatory damages in the sum of $1,500.00 and is under Florida Statute 821.221, awarded an additional $1,500.00 making a sum total of $3,000.00.

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