DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
INDIAN RIVER COUNTY,
Appellant,
v.
OCEAN CONCRETE, INC. and GEORGE MAIB,
Appellees.
No. 4D19-3611
[November 25, 2020]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Janet Croom, Judge; L.T. Case No.
312007CA011589.
Dylan Reingold, County Attorney, and Paul R. Berg of Vocelle & Berg,
L.L.P., Vero Beach, for appellant.
Geoffrey D. Smith, Susan C. Smith, and Stephen B. Burch of Smith &
Associates, Melbourne, for appellee George Maib.
FRINK, KEATHAN, Associate Judge.
Appellant, Indian River County Board of County Commissioners (“the
County”), raises several issues on appeal following the trial court’s entry
of final judgment in favor of Appellee, George Maib (“the landowner”),
stemming from a jury trial to determine damages under the Bert J. Harris,
Jr., Private Property Rights Protection Act (“Bert Harris Act”). 1 We affirm
on all issues, but write to address the County’s arguments concerning the
exclusion of two of the County’s expert witnesses and the admission of the
landowner’s opinion testimony as to the value of his property.
Background
The landowner purchased approximately 8.5 acres of real estate in
Indian River County, intending to build a concrete batch plant. When the
landowner bought the land, it was zoned as light industrial, and a concrete
batch plant was an allowable use under the then-existing land
1 The Bert Harris Act is codified in section 70.001, Florida Statutes (2008).
development regulations. However, after the landowner took steps to
develop and build the concrete batch plant on his property, the County
amended the zoning regulations to exclude concrete batch plants as an
allowable use. Doing so precluded the landowner from building a concrete
batch plant on the property as planned.
The landowner sued the County under the Bert Harris Act, seeking
compensation for the loss of his ability to construct the concrete batch
plant, attaching an appraisal report in support. See § 70.001(4)(a), Fla.
Stat. (2008). However, the County declined to settle, and the claim
ultimately proceeded to trial alongside the landowner’s Penn Central 2
taking and procedural and substantive due process violation claims.
Importantly, the trial court limited trial to liability only, with a jury
considering the procedural due process claim and the trial court
considering the landowner’s Penn Central taking, Bert Harris Act, and
substantive due process violation claims. Both the jury and the court
found in the County’s favor on all counts.
The landowner appealed, raising three issues, and this Court affirmed
on two and reversed on one. Ocean Concrete, Inc. v. Indian River Cty., Bd.
of Cty. Comm’rs, 241 So. 3d 181, 183 (Fla. 4th DCA 2018). Specifically,
this Court held that the trial court erred in concluding that the landowner
failed to prove entitlement to relief under the Bert Harris Act. Id. We held
that the landowner had a reasonable investment-backed expectation in
constructing a concrete batch plant and that the trial court erred in finding
that a concrete batch plant was not an “existing use” for the property. Id.
at 188–90. We therefore reversed and remanded to the trial court for a
trial on damages under the Bert Harris Act. Id. at 190.
Prior to the trial on damages, both the landowner and the County filed
a multitude of motions in limine. Specifically, the landowner sought to
exclude testimony from two of the County’s expert witnesses, Dr. Fishkind
(“economist”) and Mr. Underwood (“appraiser”). The County intended to
offer the economist to testify on the market for concrete batch plants and
whether the proposed plant was economically feasible, and intended to
offer the appraiser to testify that the concrete batch plant was not the
highest and best use either before or after the change in land development
regulations. The County, in turn, sought to exclude the landowner’s
opinion testimony as to his property’s value.
The trial court granted the landowner’s motions in limine to exclude
the testimony of the economist and the appraiser. The court ruled that
2 Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104 (1978).
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the economist’s proffered testimony was contrary to the Bert Harris Act,
which requires that the property be valued as though the owner had the
ability to attain his reasonable investment-backed expectation (in this case
as a concrete batch plant). The court also ruled that the economist’s
testimony was contrary to this Court’s prior decision in Ocean Concrete
Inc., which found that a concrete batch plant was considered an “existing
use” that created a value in the property greater than the fair market value
of the actual, present use or activity on the real property as vacant land.
241 So. 3d at 188. Similarly, the court excluded the appraiser’s testimony
because it sought to value the property as vacant land with a potential use
other than as a concrete batch plant. The trial court also excluded the
appraiser’s testimony because it was based in part on the economist’s
testimony as to the economic feasibility of concrete batch plants.
The trial court, however, denied the County’s motion in limine to
exclude the landowner’s opinion testimony as to the value of his own
property. The trial court reasoned that it is the general rule in Florida that
a property owner may testify as to the value of his or her own property.
Subsequently, at trial, the court denied the County’s requests to
reconsider the exclusion of the economist and the appraiser. After hearing
testimony from other witnesses—including the landowner’s opinion
testimony as to his property’s value—the jury found the landowner’s favor,
awarding him $2 million in damages. The trial court thereafter denied the
County’s “Motion to Set Aside the Verdict and in the Alternative Motion for
new Trial,” and issued a Final Judgment, awarding the landowner $2
million plus $1,302,577.00 in prejudgment interest. From this Final
Judgment, the County now seeks our review.
Analysis
The County mainly appeals the trial court’s exclusion of the economist
and the appraiser based on its interpretation of the Bert Harris Act. The
County also appeals the trial court’s finding that the Bert Harris Act allows
a property owner to testify as to his or her property’s value.
We review an issue involving statutory interpretation de novo. Bair v.
City of Clearwater, 196 So. 3d 577, 581 (Fla. 2d DCA 2016); City of
Jacksonville v. Smith, 159 So. 3d 888, 889 (Fla. 1st DCA 2015). Further,
“[a] trial judge’s ruling on the admissibility of evidence will not be disturbed
absent an abuse of discretion . . . [and] is limited by the rules of evidence.”
Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124, 126 (Fla. 4th DCA 2006)
(quoting Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003)). We must
determine if the trial court’s exclusion or allowance of the witnesses was
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based on an erroneous view of the law or a clearly erroneous assessment
of the evidence. See Salazar v. State, 991 So. 2d 364, 373 (Fla. 2008). We
do not reach that conclusion as to either issue.
A. The Exclusion of the Economist and the Appraiser
The Bert Harris Act addresses circumstances when the government
enacts laws, regulations or ordinances that “may inordinately burden,
restrict, or limit private property rights without amounting to a taking
under the State Constitution or the United States Constitution.” §
70.001(1), Fla. Stat. (2008). We previously held that the landowner’s
concrete batch plant was an “existing use,” that he had a reasonable,
investment-backed expectation in constructing the concrete batch plant,
and that the County inordinately burdened the property. Ocean Concrete,
Inc., 241 So. 3d at 188–90. Our holding became the law of the case.
Under the law of the case doctrine, questions of law that
have actually been decided on appeal “must govern the case
in the same court and the trial court, through all subsequent
stages of the proceedings.” This doctrine includes not only
issues explicitly ruled upon by the court, but also those issues
which were “implicitly addressed or necessarily considered by
the appellate court’s decision.”
Langer v. Fels, 93 So. 3d 1069, 1072 (Fla. 4th DCA 2012) (quoting Fla.
Dep’t of Transp v. Juliano, 801 So. 2d 101, 105–06 (Fla. 2001)).
Accordingly, the only issue remaining following our holding was damages.
The Legislature, in enacting the Bert Harris Act, provided the method
and formula which courts must use to determine damages under the Act:
Following its determination of the percentage of
responsibility of each governmental entity, and following the
resolution of any interlocutory appeal, the court shall impanel
a jury to determine the total amount of compensation to the
property owner for the loss in value due to the inordinate
burden to the real property. The award of compensation shall
be determined by calculating the difference in the fair market
value of the real property, as it existed at the time of the
governmental action at issue, as though the owner had the
ability to attain the reasonable investment-backed expectation
or was not left with uses that are unreasonable, whichever the
case may be, and the fair market value of the real property, as
it existed at the time of the governmental action at issue, as
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inordinately burdened, considering the settlement offer
together with the ripeness decision, of the governmental entity
or entities. In determining the award of compensation,
consideration may not be given to business damages relative
to any development, activity, or use that the action of the
governmental entity or entities, considering the settlement
offer together with the ripeness decision has restricted,
limited, or prohibited. The award of compensation shall
include a reasonable award of prejudgment interest from the
date the claim was presented to the governmental entity or
entities as provided in subsection (4).
§ 70.001(6)(b), Fla. Stat. (2008) (emphasis added).
The County first argues the trial court misinterpreted the “as though
the owner had the ability to attain the reasonable investment-backed
expectation” language as an instruction on how to value the property and
not when to value the property. The County maintains this language
requires the jury to determine the property’s fair market value when the
landowner had the ability to use the property for the intended use as a
concrete batch plant rather than, as the trial court ruled, an instruction
that the property must be valued with the landowner’s intended use as a
concrete batch plant as the highest and best use. According to the County,
a concrete batch plant was not the property’s highest and best use before
it was inordinately burdened, resulting in no diminution in value.
A statute must be given its plain and obvious meaning when the
language “is clear and unambiguous and conveys a clear and definite
meaning.” Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000) (quoting
Modder v. Am. Nat’l Life Ins. Co., 688 So. 2d 330, 333 (Fla. 1997)). “Every
statute must [also] be read as a whole with meaning ascribed to every
portion and due regard given to the semantic and contextual
interrelationship between its parts.” Fla. Dep’t of Envtl. Prot. v.
ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008) (quoting
Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455
(Fla. 1992)).
The Bert Harris Act’s plain meaning compels a rejection of the County’s
position. The Bert Harris Act clearly provides that the calculation of the
loss in fair market value of a property that has been inordinately burdened
is the difference between: 1) “the fair market value of the real property, as
it existed at the time of the governmental action at issue, as though the
owner had the ability to attain the reasonable investment-backed
expectation”; and 2) “the fair market value of the real property, as it existed
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at the time of the governmental action at issue, as inordinately burdened.”
§ 70.001(6)(b), Fla. Stat. (2008). While both parts are similar, the
distinguishing clauses are “as though the owner had the ability to attain
the reasonable investment-backed expectation” and “as inordinately
burdened.” We must read these clauses in conjunction with the rest of
the statute.
The Bert Harris Act defines an inordinate burden as:
an action of one or more governmental entities [that] has
directly restricted or limited the use of real property such that
the property owner is permanently unable to attain the
reasonable, investment-backed expectation for the existing use
of the real property or a vested right to a specific use of the
real property with respect to the real property as a whole, or
that the property owner is left with existing or vested uses that
are unreasonable such that the property owner bears
permanently a disproportionate share of a burden imposed for
the good of the public, which in fairness should be borne by
the public at large.
§ 70.001(3)(e) Fla. Stat. (2008) (emphasis added).
The damages provision under section 70.001(6)(b), Florida Statutes
(2008), read along with the definition of inordinate burden, tells us that
“as inordinately burdened” essentially means as though the owner did not
have the ability to attain the reasonable investment-backed expectation.
Thus, the statute’s damages provision anticipates a valuation before and
after the investment-backed expectation loss. In other words, the
valuation is focused on the investment-backed expectation itself, rather
than a potentially higher value use. It is important to remember that the
Bert Harris Act’s purpose is to determine the investment-backed
expectation loss. To value the property otherwise would result in an
unnecessary and irrelevant valuation.
With that in mind, the trial court properly excluded the economist’s and
the appraiser’s testimony, in part, based upon the Bert Harris Act’s plain
meaning. Doing so did not constitute an abuse of discretion. 3 The
economist sought to testify as to the concrete batch plant’s economic
3 Because we hold that the trial court’s exclusion of these witnesses based on its
interpretation of the statute’s “as though the owner had the ability to attain the
reasonable investment-backed expectation” provision was appropriate, we do not
address whether the trial court misinterpreted “existing use.”
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feasibility to demonstrate that it was not the highest and best use, and the
appraiser—whose testimony relied upon the the economist’s analysis—
sought to value the property as something other than a concrete batch
plant. Neither expert offered testimony complying with section
70.001(6)(b), Florida Statutes (2008).
We note that the County was not without remedy following the trial
court’s exclusion of the testimony of the economist and the appraiser. The
motions in limine excluding these witnesses were initially heard and ruled
upon before the start of trial. 4 The County could have requested leave
from the trial court to speak with its witnesses, or to inform them of the
trial court’s ruling and determine if they could offer testimony in
compliance therewith. However, the record does not reflect any such
attempt by the County.
To the extent the County’s proffered testimony from the appraiser
concerning the property’s value as inordinately burdened would not have
violated the trial court’s interpretation of the statute’s “as though the
owner had the ability to attain the reasonable investment-backed
expectation” language, we further note that any such testimony would not
implicate the full damages calculation under section 70.001(6)(b), Florida
Statutes (2008). Moreover, the appraiser’s proffered testimony
demonstrated that he sought to value the property, as inordinately
burdened, with a value lower than the value to which the landowner’s
expert testified. Thus, any potential error in excluding this testimony was
harmless. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla.
2014). Accordingly, we hold the trial court correctly interpreted the Bert
Harris Act, and that the exclusion of both the economist and the appraiser
was therefore not based on an erroneous interpretation of the law.
B. The Landowner’s Opinion Testimony
The County also argues the trial court erred in permitting the
landowner to testify as to his property’s value because the Bert Harris Act
allegedly precludes such testimony. We disagree.
The statute requires a property owner, who is burdened by the action
of a governmental entity and thus seeking compensation, to first submit a
claim in writing to the head of the governmental entity along with a “valid
4The four-day trial was held from September 23 through September 26, 2019.
The trial court first ruled on the motion in limine as to the economist during an
August 15, 2019 pretrial hearing and ruled on the motion in limine as to the
appraiser in a September 20, 2019 pretrial order.
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appraisal that supports the claim and demonstrates the loss in fair market
value to the real property.” § 70.001(4)(a), Fla. Stat. (2008). While the
statute does not state who may testify as to the property’s fair market value
at trial, legal precedent allows a property owner to testify as to its value.
Craig v. Craig, 982 So. 2d 724, 729 (Fla. 1st DCA 2008) (“Generally, an
owner of property can testify as to its value, whether or not the owner is
qualified as an expert.”); Reliance Ins. Co. v. Pro-Tech Conditioning &
Heating, 866 So. 2d 700, 701 (Fla. 5th DCA 2003) (“Florida and other
jurisdictions permit an owner to testify as to property damages and
value.”). However, this legal precedent is not without restriction.
An owner is qualified to testify to the value of his property
based on a presumed familiarity with the characteristics of
the property, knowledge or acquaintance with its uses and
purposes, and experience in dealing with it. An owner must
be shown to have knowledge regarding the property and its
value sufficient to qualify him.
B & B Tree Serv., Inc. v. Tampa Crane & Body, Inc., 111 So. 3d 976, 978
(Fla. 2d DCA 2013) (internal quotation marks and alterations in original
omitted) (quoting Craig, 982 So. 2d at 729).
The County argues the Bert Harris Act requires that a property owner
submit only a valid appraisal in support of the claim demonstrating the
loss in fair market value, without allowing the property owner to testify at
trial concerning the property’s value. But the County’s position conflicts
with the entire purpose of a trial on damages to determine the
compensation amount. The statute references only that the appraisal
must demonstrate the loss in the fair market value. § 70.001(4)(a), Fla.
Stat. (2008). Nothing precludes the owner from testifying as to his or her
own knowledge of the property. The statute did not override legal
precedent allowing the landowner to testify as to his property’s value. See
Reliance Ins. Co., 866 So. 2d at 701.
Moreover, the landowner demonstrated familiarity with and knowledge
of the property that sufficiently qualified him to testify as to his property’s
value. B & B Tree Serv., Inc., 111 So. 3d at 978. The landowner testified
that after he purchased the property, he hired a team of professionals,
surveyors, and individuals to advise him on the property. He testified that
he made physical alterations and improvements to the property after
purchasing it, such as clearing the land, re-sleeving an old well, putting in
two five-inch wells, installing another well for potable water, and relocating
473 palm trees to the property’s perimeter to act as a buffer. He also
testified his concrete batch plant was going to be state of the art and the
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property’s slope and triangular design along its rail side, plus its natural
buffer zones, added value for his intended use.
We further note the County was not prejudiced as a result of the
landowner’s testimony because it thoroughly cross-examined him, and the
jury had ample opportunity to weigh his testimony. With these
considerations in mind, we hold the trial court did not abuse its discretion
in allowing the landowner to testify about his property’s value.
Conclusion
Because we hold that the trial court properly interpreted the Bert Harris
Act to exclude the testimony of both the economist and the appraiser, and
because we hold the trial court did not abuse its discretion in allowing the
landowner to testify as to the value of his property both before and after
the inordinate burden, we affirm as to those issues. We also affirm as to
all other issues on appeal.
Affirmed.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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