ORANGE COUNTY, FLORIDA, APPELLANT,
v.
BERYLE S. BUCHMAN, ET AL., APPELLEES
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Orange County appeals a final judgment in an eminent domain case awarding severance damages to property owners whose 77-acre tract was partially taken. The appellate court reverses on the issue of severance damages, finding the trial court improperly instructed the jury to disregard the County's expert testimony about potential future road vacation, violating the prohibition on judicial comment regarding weight of evidence.
The trial court erred in issuing the special jury instruction. The instruction violated Florida Statute section 90.106's prohibition against judicial comment on the weight of evidence by instructing the jury to give part of the County's evidence no weight, and it conflicted with the standard jury instruction permitting jurors to accept, reject, or weigh expert testimony as they saw fit.
[1] A jury instruction is improper if it comments on the weight of the evidence presented.
[2] A jury instruction that instructs the jury to give specific evidence no weight violates the prohibition against judicial comment on the weight of the evidence.
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Join FLexlaw to unlock all legal intelligence“Orange County is bound by the construction plans it has introduced into evidence regarding the design and construction of the road. You may not consider testimony from the county about what access might be permitted in the future, in an attempt to reduce severance damages.”
The improper jury instruction that the trial court issued, which violated the prohibition on judicial comment on the weight of evidence
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Join FLexlaw to unlock all legal intelligenceOrange County acquired 3.5 acres of a 77-acre tract owned by Buchman and others, who retained the remaining acreage. The parties disputed severance da…
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In this eminent domain proceeding, Orange County appeals a final judgment awarding compensation for its taking of land owned by Beryle S. Buchman, Kenneth W. Buchman, J. Miles Buchman, Carol Ann Cole, Thomas Cole, Elise A. Della Rocca, Robert B. Solomon, and Alfred F. Barrett (owners). Determining that the trial court erred by issuing an improper jury instruction affecting severance damages, we affirm in part and reverse in part.
The County acquired a 3.5-acre portion of a 77-acre tract of land from the owners. The owners retained the remaining acreage. The parties disputed the amount of the owners’ severance damages, which are calculated as “the difference between the value of the [remaining] property before and after the taking.” Fla. Dep’t of Transp. v. Armadillo Partners, Inc., 849 So.2d 279, 283 (Fla.2003). The owners presented evidence that the decrease in value was approximately $4 million, whereas the County presented evidence that there was no decrease in value.
Part of the County’s evidence was expert testimony that a particular road could be vacated at a later time, even though it was shown on the County’s construction plans as remaining in place. This testimony suggested that such a road vacation would permit future access to the remaining property, thus reducing severance damages. The owners’ objection to the admission of the expert’s testimony was overruled. However, the trial court later issued the following special jury instruction, over the County’s objection:
Orange County is bound by the construction plans it has introduced into evidence regarding the design and construction of the road. You may not consider testimony from the county about what access might be permitted in the future, in an attempt to reduce severance damages.
The County contends that the trial court erred in issuing this instruction. We agree. The instruction was improper because it violated the prohibition against judicial comment set forth in section 90.106, Florida Statutes (2010), and contradicted the standard jury instruction on expert witnesses.
*522Section 90.106 provides that a judge may not comment to the jury upon the weight of the evidence. § 90.106, Fla. Stat. (2010). The instruction here did so, instructing the jury to give part of the County’s evidence no weight. The instruction had the effect of striking the expert’s testimony, even though the evidence had closed and closing arguments had been made. The owners had never asked the trial court to reconsider its admission of the testimony or to strike it.
The special instruction also directly conflicted with a standard instruction provided to the jury:
You have heard opinion testimony from persons referred to as expert witnesses. You may accept such opinion testimony, reject it, or give it the weight you think it deserves....
Fla. Std. Jury Instr. (Civ.) 601.2(b) (2010).
Accordingly, we reverse and remand for a new trial on the issue of severance damages. We otherwise affirm.
AFFIRMED in part, REVERSED in part, and REMANDED.
MONACO and COHEN, JJ„ concur.
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Citator
Cited By
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Orange Cnty. v. Beryle S. Buchman, 183 So. 3d 457 (Fla. 5th DCA 2016)
Authorities Cited
- Fla. Dep't OF Transp. v. Armadillo P'rs, Inc., 849 So. 2d 279 (Fla. 2003)