Opinion
No. 61-197.
March 1, 1962.
Appeal from the Circuit Court for Dade County, George E. Holt, J.
Brigham, Wright, Goodwin Dence and Toby Prince Brigham, Miami, for appellant.
Robert D. Canada, Tallahassee, for appellee.
Before PEARSON, TILLMAN, C.J., and HORTON and CARROLL, JJ.
This appeal is by the property owner in a condemnation proceeding.
The crucial question is whether the trial court committed reversible error by denying the appellant's motion for new trial. The principal ground of the motion for new trial was newly discovered evidence tending to show that the testimony of the State's appraisers relative to the inclusion of architect's fees in the estimate of reproduction costs was erroneous, if not false.
The factual basis from which this question arose evolved out of a contractor's estimate of the reproduction costs of improvements located on the appellant's land. One of the State's appraisers used an estimate furnished by a local contractor. On cross-examination this appraiser stated that the estimate included "architectural fees and the whole works". The State's other appraiser, although having the benefit of the same contractor's estimate, made his own independent estimate. When cross-examined regarding architect's fees, this other appraiser indicated he believed the contractor's estimate included such fees. Appellant's witnesses included architect's fees as a separate item in their estimate of reproduction cost.
The State's two appraisers estimated reproduction costs, damages, etc., ranging from $125,288 to $127,288. Appellant's evidence placed just compensation at $150,288. The jury returned a verdict for appellant in the sum of $130,288.
The appellant contends it has been denied just compensation for its property by the trial court's refusal to grant a new trial where the testimony of the State's appraisers misled the jury as to the fact of the inclusion of architect's fees in the contractor's estimate of reproduction costs of improvements. This contention we conclude is without merit.
The premise upon which appellant's contention rests is that the erroneous or false testimony of the State's appraisers resulted in the jury rendering a verdict for less than it would have otherwise. This of course is pure conjecture. The fact that the jury's verdict was within the range of the evidence certainly does not support appellant's contention. Obviously the jury did not rely wholly upon the State's appraisers because its verdict exceeded the State's lowest estimate by $5,000 and its highest by $3,000. The appellant's appraisers allowed architect's fees as a separate item of reproduction cost and specific testimony relating to the usual and reasonable percentage fee charged by architect is contained in the record.
Assuming that appellant's contention is correct, we have been unable to find any basis in this record, and none has been called to our attention, upon which we could conclude that another jury viewing the evidence would return a different verdict. If the jury was misled it has not been demonstrated by the record here.
The briefs, oral argument and record have been carefully considered. We concluded that appellant was accorded a fair trial, received just compensation at the hands of a jury and justice does not demand or require a new trial.
Affirmed.
The conclusion which I have reached in this case is contrary to that reached by the majority. I must respectfully dissent and briefly declare my reasons.
Appellant-owner's motion for new trial was on the basis of newly discovered evidence. At the trial the real estate appraisers for the State Road Department and the appraiser for the church used the cost approach in arriving at the amount of full compensation guaranteed to the church under the Constitution and laws of the State of Florida. The formula used by each appraiser was: the sum of the market value of the land taken as though unimproved, together with severance damage, if any, to the remaining property; plus the value which the landscaping and similar improvements contributed to the real estate; plus the depreciated reproduction cost new of the building; plus any special expenses allowable by law.
The largest single element of the formula was the depreciated reproduction cost new of the church buildings. Therefore, the completeness of the determination of what it would cost an owner to construct the buildings as though new was of paramount importance. The testimony of the appraisers for the State Road Department was in agreement that the architect's fees should be included in the cost new of the church buildings. They used in their testimony of construction costs new to the owner, the estimate of a contractor. The State did not put the contractor on the stand nor did it introduce a written estimate into evidence. Upon cross-examination it was stated that the contractor's estimate included architect's fees and overhead costs such as a builder's bond.
After verdict the owner discovered from the contractor whose estimate was used that the estimate did not include either architect's fees or builder's bond. The church promptly moved for a new trial upon the basis of this newly discovered evidence. The motion was denied and the owner appealed from the final judgment.
All are agreed that nothing less than full compensation will satisfy the law of Florida. Jacksonville Expressway Authority v. Henry G. Du Pree Co., Fla. 1958, 108 So.2d 289, 69 A.L.R.2d 1445. I am of the view that appellant-owner's motion met all the requirements of a good motion for new trial upon the grounds of newly discovered evidence. As set forth in Howard v. State, 36 Fla. 21, 17 So. 84, they are:
"(1) The evidence must have been discovered since the former trial; (2) the party must have used due diligence to procure it on the former trial; (3) it must be material to the issue; (4) it must go to the merits of the cause, and not merely to impeach the character of a witness; (5) it must not be merely cumulative; (6) it must be such as ought to produce on another trial an opposite result on the merits."
It appears: (1) that the evidence was in fact discovered after the trial; (2) the owner could not by the use of diligence have discovered the error before or at the trial. In the latter connection it is clear that the erroneous testimony of the State's witnesses barred the discovery at trial; (3) the evidence was material because it appears the jury might reasonably have been misled; (4) full compensation is the whole cause, and there was no possible evidence to impeach the misleading statements to the jury; (5) the evidence is not cumulative in that it does not tend to prove a point already proved and (6) we do not know that a new jury will include these costs but we may reasonably conclude that they will follow the law. The law of Florida provides: "`* * * the owner shall be made whole so far as possible and practicable.'" Dade County v. Brigham, Fla. 1950, 47 So.2d 602, 18 A.L.R.2d 1221. I would hold the architect's fee and the builder's bond as much a part of the cost of constructing a modern church building as the stones and mortar.
I would reverse.