ORLANDO/ORANGE COUNTY EXPRESSWAY AUTHORITY, APPELLANT,
v.
PETER G. LATHAM, ETC., ET AL., APPELLEES
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The Expressway Authority appeals a jury verdict awarding $2 million in severance damages in a condemnation proceeding. The court reversed because the trial judge improperly excluded the Authority's expert testimony rebutting the claimant's severance damage theory, denying the Authority a fair opportunity to defend against the claim.
The court reversed because the excluded testimony was relevant to SWJV's severance damage claim and the Authority was improperly deprived of the opportunity to rebut that claim. The court concluded that the threshold issue of whether SWJV has any valid severance damage claim must be reconsidered on remand in light of recent Florida case law.
[1] A trial court errs by excluding relevant expert testimony offered in rebuttal to a severance damages claim in a condemnation proceeding.
[2] A proffer of expert testimony is generally sufficient to preserve an issue for appeal when the trial court considers the proffer and makes a ruling based upon it.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“SWJV's claim for severance damages was based upon expert testimony concerning its claimed "vested right" to an at-grade east-west arterial road to be built at some unspecified time in the future”
Establishes the problematic foundation of SWJV's severance damage claim—reliance on a future governmental improvement rather than existing property characteristics
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Join FLexlaw to unlock all legal intelligenceThe Authority condemned property owned by the Southcase Warehouse Joint Venture (SWJV) in a condemnation proceeding. SWJV claimed $4 million in severa…
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PER CURIAM.
The Orlando/Orange County Expressway Authority [“Authority”] appeals a jury verdict awarding the Southcase Warehouse Joint Venture [“SWJV”] $2,000,000 in severance damages in a condemnation proceeding. We reverse. SWJV’s claim for severance damages was based upon expert testimony concerning its claimed “vested right” to an at-grade east-west arterial road to be built at some unspecified time in the future1 — one which would provide access to the Florida Turnpike via an interchange on adjacent land.
When the Authority sought to introduce expert testimony to rebut SWJV’s case on severance damages, SWJV urged that the testimony should be excluded as irrelevant. After hearing the Authority’s proffer, made by counsel, summarizing the testimony of their two experts, the lower court ruled they could not testify. This effectively left the Authority without a case in defense of SWJV’s $4,000,000 severance damage claim. As the court expressed it: “[The Authority’s counsel] is resting because I eliminated his rebuttal.”2 We reverse because, based on our review of the record, it appears that much of the proffered testimony was relevant to the severance damage claim put on by SWJV,3 which depended on SWJV’s claim of a right to an east-west arterial access.
The issue of whether SWJV has a claim for severance damages at all was not presented to the lower court, nor was the record well developed because of the severe limitations placed on the Authority’s evidence. We conclude this issue is most appropriately considered on remand, taking into account recent developments in Florida case law, including Department of Transportation v. Gefen, 636 So. 2d 1345 (Fla.1994) and Broward County v. Patel, 641 So. 2d 40 (Fla.1994).
Finally, even though the Authority has prevailed on appeal, Florida law requires that SWJV be awarded attorneys’ fees. § 73.131, Fla.Stat. (1993). Denmark v. Department of Transportation, 389 So. 2d 201 (Fla.1980).
REVERSED AND REMANDED.
DAUKSCH, GRIFFIN and DIAMANTIS, JJ., concur. . As expressed in SWJV’s brief, “SWJV's witnesses concluded not only that the construction of such a road was probable, but that it was specifically required by the applicable governmental agencies.”
. The Authority's counsel then asked to be allowed not to rest until the following morning before the jury view of the property to see if he had any other appropriate rebuttal. The following day, possibly in recognition that the breadth of the lower court’s order was error, SWJV's counsel attempted to "clarify” the scope of its objection, but the court did not modify its order. .We are not persuaded by SWJV's contention on appeal that the Authority failed to preserve this error by making the proffer himself rather than by offering the witnesses’ testimony. The colloquy between the Authority’s counsel and the court, however, shows that the court was asked by counsel if the witnesses should testify and the court considered counsel’s proffer adequate for the puipose of making his ruling. There was no objection from SWJV to the proffer by counsel. Furthermore, we find the proffer provides sufficient detail that the relevancy of the testimony and the lower court's error in excluding it are not in doubt. See Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988).
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Schrimsher Land Fund 1986-11, Ltd. v. Dep't OF Transp., 715 So. 2d 291 (Fla. 5th DCA 1998)…se listed in such appraisals was residential. This fact has not been challenged. For the purpose of this appeal, such proffer is sufficient and we do not need the actual appraisals before us. See Orlando/Orange County Expressway Authority v. Latham, 643 So. 2d 10 (Fla. 5th DCA 1994). The failure to permit cross-examination on this point is not harmless. The jury returned an award in the exact amount testified to by the State’s appraiser. The landowner should have been permitted to make the appraiser either…
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Cooney v. Pearl, 755 So. 2d 742 (Fla. 4th DCA 2000)…did find things wrong. This statement, along with the context in which it was made, sufficiently informed the trial court of the nature, substance, [*745] and relevancy of Dr. Jacobs’ testimony. See Orlando/Orange County Expressway Auth. v. Latham, 643 So. 2d 10, 11 n. 3 (Fla. 5th DCA 1994). The record further shows that the trial court did not specifically address appellants’ arguments that Dr. Jacobs’ testimony was “cumulative,” “repetitive,” and “prejudicial,” but excluded his testimony solely because D…
Authorities Cited
- Dep't OF Transp. v. L.I. Gefen, 636 So. 2d 1345 (Fla. 1994)
- Reaves v. State, 531 So. 2d 401 (Fla. 5th DCA 1988)
- Broward Cnty. v. Bharat Patel, 641 So. 2d 40 (Fla. 1994)
- Denmark v. State of Fla. Dep't OF Transp., 389 So. 2d 201 (Fla. 1980)