Davis v. South Florida Water Management Dist., s. 96-3941

• Decision Date: 08 July 1998
• Docket Number: 97-0127,Nos. 96-3941,s. 96-3941
• Citation: 715 So.2d 996
• Parties: 23 Fla. L. Weekly D1613 Nancy Jean DAVIS, individually and as Trustee for Nancy Jean Davis, et al., Appellants, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, et al., Appellees.
• Court: Florida District Court of Appeals

Page 996

715 So.2d 996

23 Fla. L. Weekly D1613

Nancy Jean DAVIS, individually and as Trustee for Nancy Jean Davis, et al., Appellants, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT, et al., Appellees.

Nos. 96-3941, 97-0127.

District Court of Appeal of Florida Fourth District.

July 8, 1998.

Rehearing and Rehearing En Banc

Denied Sept. 3, 1998.

Andy Schuster, Toby Prince Brigham, and Amy Brigham Boulris of Brigham, Moore, Gaylord, Schuster, Merlin & Tobin, Miami, for appellants.

Ruth P. Clements of South Florida Water Management District, West Palm Beach, for Appellee-South Florida Water Management District.

STONE, Chief Judge.

We affirm the final judgment in this condemnation proceeding involving a large tract of land taken for Everglades Restoration purposes.

At trial, Appellants' expert testified that the fair market value of the land was $18 million dollars, while the expert of the South Florida Water Management District ("District") testified that it was worth only $10 million. On the date of the taking, the land was zoned for agricultural residential use, which allows a maximum of 146 homesites on the property. District's expert testified that maintaining the current zoning designation of one unit per ten acres was the highest and best use of the property at the time of the taking. His calculation of fair market value is based on this use by comparing the sales of six similar parcels in similar locations.

Appellants' expert also used a comparable sales approach to determine fair market value. He based his calculations on his opinion that a residential development on the property with a density of 1.65 units per acre, or 2,339 units, was the highest and best use of the land. To determine whether this proposed use would be financially feasible, Appellants' expert looked to the comparable sales data. To double check his conclusion as to feasibility, he employed a "discounted cash flow" model. That model calculates the rate of return on investment that is potentially yielded by Appellants' proposed use of the subject property. The calculation is used to determine whether a project will produce an adequate rate of return compared to the amount of an investor's capital investment.

Appellants initially assert that evidence based on a discounted cash flow model was erroneously admitted as evidence of fair market value, as evidence of comparable sales exists. They contend that the court should have prohibited District from questioning Appellants' expert during cross-examination about his use of the discounted cash flow model. However, prior to their expert's taking the stand, Appellants requested a ruling in limine from the court based on this argument. The trial court advised that the subject would be proper cross-examination. Without knowing whether that evidence would be offered by District, Appellants then elected to preemptively question their expert on the matter during direct examination. Appellants adopted a strategy opening the door to District's cross-examination. Therefore, we need not resolve what role the discounted cash flow model might otherwise play in considering highest and best use and fair market value had Appellants not raised the matter. ¹

We also reject Appellants' challenge to the testimony of a District witness who was not a licensed appraiser. The trial court has broad discretion in determining whether a witness is qualified to offer opinion testimony. See Harrison Land Dev., Inc. v. R & H Holding Co., 518 So.2d 353, 355 (Fla. 4th DCA 1987). Here, the witness had an extensive background in both economics and real estate. Cf. Porter v. Columbia County, 75 So.2d 699, 700 (Fla.1954) (witness was incompetent because he was neither an appraiser, a real estate expert, nor a person with any necessary qualifications to express an opinion as to the value of property).

Appellants further seek a new trial for improper and prejudicial remarks by District's counsel during closing argument, in which, Appellants assert, the attorney injected his own credibility into the argument, offered his personal opinion to the jury, and suggested that the jurors would ultimately pay for the verdict as taxpayers. District's attorney stated:

Ladies and gentlemen of the jury, it's easy to make an appeal that the property owner ought to receive a full bucket. And as a lawyer and an officer of the court, and an attorney who is proud to represent South Florida Water Management District and other condemning authorities and private property owners, I will tell you that $18 million overflows that bucket by $8 million because they're asking you to pay, they're asking you to consider the value of this property with elements of risk, and elements that aren't there and may never be there.

Appellants' counsel objected to the comment and moved for a mistrial on the basis that it improperly suggested that the jurors would pay an inflated amount in their role as taxpayers. The court reserved ruling on the mistrial and allowed District to correct that impression. District continued:

Ladies and gentlemen of the jury, it's very clear that none of you have to pay anything, and when I said you, I meant you in the role of a willing buyer would have to pay. I understand that none of you are the buyers. This hypothetical buyer would have to pay that amount of money, and that would overflow, that would reduce the compensation, using Mr. Brigham's analogy, more than overflow the barrel, the bucket, by almost $8 million or $9 million.

The "full bucket" analogy to which District's attorney...