Weese v. Pinellas County, 94-04428

• Decision Date: 31 January 1996
• Docket Number: No. 94-04428,94-04428
• Citation: 668 So.2d 221
• Parties: 21 Fla. L. Weekly D331 Rollie L. WEESE and Henry J. Weese, Appellants, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 221

668 So.2d 221

21 Fla. L. Weekly D331

Rollie L. WEESE and Henry J. Weese, Appellants, v. PINELLAS COUNTY, a political subdivision of the State of Florida, Appellee.

No. 94-04428.

District Court of Appeal of Florida,

Second District.

Jan. 31, 1996.

Rehearing Denied Feb. 21, 1996.

Appeal from the Circuit Court for Pinellas County; John S. Andrews, Judge.

Suzanne LaBerge of Gruskin & LaBerge, P.A., St. Petersburg, for Appellants.

Carol B. Abernathy, Senior Assistant County Attorney, Clearwater, for Appellee.

RYDER, Acting Chief Judge.

Rollie and Henry Weese claim the trial court erred when it excluded the testimony of their business damage expert during the trial of this eminent domain action. They also challenge the court's refusal to allow Rollie Weese, the former owner of the business, to give his opinion on business damages. We agree with their contentions, reverse and remand for a new trial.

In April 1991, Pinellas County filed an eminent domain petition, seeking to condemn a portion of Rollie Weese's land for a road construction project. Henry Weese owned and operated a business, Guarantee Auto Sales, on the property. The order of taking was entered July 2, 1991. Rollie and the County settled the issue of compensation for the land taken, so a trial was held on the issue of business damages only.

This case centers around the testimony of David A. Salverson, an accountant and the Weeses' business damage expert. After the court qualified him as an expert, the County conducted a voir dire about the date of value used in his damages calculation. The majority of the voir dire took place out of the jury's presence. Salverson testified that he first met the Weeses in the summer of 1992. Although the order of taking had been entered in July 1991, the road construction project had not yet reached Rollie's property. In fact, Guarantee continued to use the condemned property to display cars until September 1993 when construction began in its vicinity. The construction was completed in February 1994. Mr. Salverson testified that although the transfer of title to Pinellas County occurred in July 1991, and was the legal cause of the business damages, actual damages did not occur until completion of the road project in February 1994.

Mr. Salverson stated that the business damages resulted from a loss of automobile display spaces on the land condemned. In order to calculate the amount of damages, he reviewed Guarantee's business records for several years before the 1991 condemnation. He did his own traffic observation in 1992 before construction altered the site and determined that Guarantee would lose twelve of its eighty-seven display spaces as a result of the condemnation. Salverson then examined Guarantee's profits for five years before the date of condemnation and for seven years before the denial of the use of the land taken. He arrived at an annual average profit margin for each display space. He proffered his opinion that the damages would continue ten years. Because the County would pay the award in a lump sum, he calculated the present value of the damages at a seven percent discount rate over ten years.

The County argued, and the court agreed, that Mr. Salverson had used the wrong date as the beginning point of his calculation of the business damages. Section 73.071(2), Florida Statutes (1991), states that "compensation shall be determined as of the date of trial, or the date upon which title passes, whichever shall occur first." We agree that the Weeses' compensation must be based on the damage to Guarantee's business as it existed on July 2, 1991. We disagree, however, with the...