Dep't Of Agriculture & Consumer Serv. v. Bogorff

• Decision Date: 12 May 2010
• Docket Number: No. 4D08-4474.,4D08-4474.
• Citation: 35 So.3d 84
• Parties: DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, State of Florida, Appellant,v.Toby BOGORFF, Robert Bogorff, Timothy Farley, Beth Garcia, Roald Garcia, Robert Pearce, and Barbara Pearce, as representatives of the certified class, Appellees.
• Court: Florida District Court of Appeals

35 So.3d 84

DEPARTMENT OF AGRICULTURE & CONSUMER SERVICES, State of Florida, Appellant,v.Toby BOGORFF, Robert Bogorff, Timothy Farley, Beth Garcia, Roald Garcia, Robert Pearce, and Barbara Pearce, as representatives of the certified class, Appellees.

No. 4D08-4474.

District Court of Appeal of Florida Fourth District.

May 12, 2010.

COPYRIGHT MATERIAL OMITTED

Wesley R. Parsons and Jack R. Reiter of Adorno & Yoss, LLP, Miami, for appellants.

Bruce S. Rogow and Robert C. Gilbert of Alters Boldt Brown Rash & Culmo, P.A., Miami, Julie H. Littky-Rubin of Lytal Reiter Clark Fountain & Williams, LLP, West Palm Beach, Jamie Alan Cole of Weiss Serota Helfman Pasoriza Cole & Boniske, P.A., Fort Lauderdale, and Michael J. Pucillo of Berman Devalerio, LLP, Palm Beach Gardens, for appellees.

Steven Geoffrey Gieseler, Stuart, for Pacific Legal Foundation, Amicus Curiae.

FARMER, J.

The Florida Department of Agriculture and Consumer Services (DACS) appeals a final judgment in favor of a class of more than 50,000 owners of healthy citrus trees in Broward County cut down and destroyed by DACS as part of its citrus canker eradication program (CCEP).¹ The trial judge found that over 100,000 non-commercial trees in the County not affected with citrus canker had been taken and destroyed by DACS during the covered period, that the taking was for a public purpose, and that the owners of these residential trees were entitled to just and fair compensation for their healthy trees. A jury then found that just compensation for the class was $11,531,463. After applying certain setoffs and adding pre-judgment interest, the court entered judgment against DACS and the State of Florida in the amount of $8,043,542.

On appeal, DACS essentially argues:

A. The trial court improperly rejected its evidence in favor of the evidence offered by the plaintiff class.

B. No inverse condemnation was shown because the trees lacked any compensable value, citrus canker being deemed a public nuisance as a matter of law, and the trial court applied the wrong test for determining whether there had been a taking.

C. The legislature has abolished any common law claim of inverse condemnation and replaced it with a statutory claim.

D. The court applied the wrong measure of damages for the healthy trees destroyed in the CCEP.

E. No pre-judgment interest is allowed in this case.

There is no merit in any of these arguments.

A. Whose evidence and science was more reliable and credible?

When the contention is that the trier of fact has rejected what a party believes is the better evidence, both lay and expert, the supreme court has explained:

“It is clear that the function of the trial court is to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses appearing in the cause. It is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test ... is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court's right to reject ‘inherently incredible and improbable testimony or evidence,’ ... it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court.” [e.s.]

Shaw v. Shaw, 334 So.2d 13, 16 (Fla.1976). Moreover, when specific findings of fact on discrete conflicts in the evidence are not made by the trial judge or by a jury in a special interrogatory verdict, we are required to accept those facts shown by the evidence as favoring the prevailing party. ² On all the factual claims made by DACS in this appeal, the settled facts are not as it represents. Instead the evidence establishes quite the contrary.

There is substantial competent evidence that healthy, privately owned citrus trees are not harmful or destructive, even though found within 1,900 feet of a tree having citrus canker. There is evidence in the record that the healthy trees taken under the CCEP had continued to produce the fruit, the juice, the shade, the pleasing aromas, the agreeable vistas-all the virtues for which their owners carefully planted and tended them. There was expert testimony that no study using an acceptable scientific method supports a conclusion that healthy trees so situated will necessarily develop citrus canker or bring trouble or damage to anybody. DACS has failed to show error here.

Moreover the finder of fact is free to determine the reliability and credibility of expert opinions and, if conflicting, to weigh them as the finder sees fit.³ Even when expert testimony is unchallenged, the finder of fact is free to weigh the opinion, just as it does with any other witness, and reject such testimony.⁴ We routinely instruct juries that it is their function to resolve conflicts and to reject an expert's testimony and rely on other record evidence.⁵ Although an expert's opinion may seem forcefully and unequivocally influential, in weighing all the evidence the jury may still apply its knowledge and experience and rely on other evidence. ⁶

By its argument, DACS is attempting to have a reviewing court decide which side's evidence-scientific and otherwise-should be accepted as a matter of law, and which to reject. We are not able to engage in that kind of review. As the foregoing authorities establish, it is solely the province of the finder of fact to determine which science is real, which evidence is most reliable. None of the evidence supporting the judgment is inherently incredible or improbable. Both the judge (as to the takings) and the jury (as to just compensation) simply thought the evidence and science of the class of plaintiffs was the more reliable and credible. We must accept those decisions, for they are based on substantial competent evidence.

B. Inverse condemnation; value of trees; public nuisance; test for taking.

DACS argues it is not liable for any damages as a matter of law because healthy trees exposed to citrus canker constitute a public nuisance having no value, that exposed citrus will itself develop canker and become worthless. It is apparent from the history of this case that DACS destroyed these privately owned healthy trees not because they were really “imminently dangerous” to anybody but instead to benefit the citrus industry in Florida. See Dep't of Agric. & Consumer Servs. v. Haire, 836 So.2d 1040, 1050 (Fla. 4th DCA 2003) (“because protecting the citrus industry benefits the public welfare, it is within the state's police power to summarily destroy trees to combat citrus canker”). To be a public nuisance, property must cause “inconvenience or damage to the public generally.” ⁷ If trees are destroyed not to prevent harm but instead to benefit an industry, it is difficult to understand how DACS can argue on appeal that the trees legally constituted a nuisance without any value. Property with any value cannot be deemed a nuisance, the nature of which perforce lacks that redeeming quality.

Here again DACS asks us to prefer evidence it presented to the takings judge, and then to the jury, and disregard the contrary evidence on which both relied in making their decisions. “Whether regulatory action of a public body amounts to a taking must be determined from the facts of each case ... and the trial judge in an inverse condemnation suit is the trier of all issues, legal and factual, except for the question of what amount constitutes just compensation.” Dep't of Agric. & Consumer Servs. v. Mid-Florida Growers Inc., 521 So.2d 101, 104 (Fla.1988) (“ Mid-Florida Growers I ”). A trial court's finding of liability in an inverse condemnation suit is presumed correct and its findings will not be disturbed on appeal if supported by competent, substantial evidence. Atl. Int'l Inv. Corp. v. State, 478 So.2d 805, 808 (Fla.1985).

It has long been acknowledged that a “physical invasion” of private property is the clearest example of a governmental taking for which just compensation is due. See e.g. United States v. Gen. Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (destruction of property constitutes a taking); United States v. Welch, 217 U.S. 333, 339, 30 S.Ct. 527, 54 L.Ed. 787 (1910) (agency destroyed easement by flooding: “if it were ... destroyed and ended, a destruction for public purposes may as well be a taking as would be an appropriation for the same end”); Corneal v. State Plant Bd., 95 So.2d 1, 6 (Fla.1957) (“We have found no case-and none has been cited-holding that a healthy plant or animal, not imminently dangerous, may be destroyed without compensation to the owner in order to protect a neighbor's plant or animal of the same specie” [e.o.] ); Kendry v. State Rd. Dept., 213 So.2d 23 (Fla. 4th DCA 1968) (flooding resulted in taking).⁸

DACS argues that the trial judge used the wrong legal test for regulatory takings. Frankly it is difficult to understand how the test used would be error. It is true that whether a regulation amounts to a taking may depend on the unique circumstances of the case, and the court's factual inquiry may change from case to case. See Rubano v. Fla. Dep't of Transp., 656 So.2d 1264, 1266 (Fla.1995). But in Graham v. Estuary Properties Inc., 399 So.2d 1374 (Fla.1981) cert. denied, 454 U.S. 1083, 102 S.Ct. 640, 70 L.Ed.2d 618 (1981), the court recognized no settled formula to determine where a valid exercise of the police power ends and a taking of property begins. The court did discuss some non-exclusive factors, the first of which (physical invasion or destruction) is dispositive under the facts of this case.

The facts of this case require no application of multi-part, recondite tests to decide whether the State regulation has gone too far and must pay just compensation. Cutting down and destroying healthy non-commercial trees of private citizens could hardly be more definitively a taking.⁹...