to welcome our colleague from the southern district of florida chief district judge michael moore to sit with us today and friday is not the st time chief judge moore has sat with us and we appreciate his willingness to do so again and to add this this work assisting us to his regular duties in cal so we're familiar with your cases we've read your brief the authority cited in your praise at least a portion of the record so you have limited time this morning you should feel listen out for the court room deputy to tell you when your time is about to expire and be mindful of that if you're finishing an answer to a question from the court of course she contends that answer if it had been under fair compensation or just compensation for the same anyway and you all could not object to the jury instructions so why does it matter to the trial  judge the standard of compensation was made a feature of the trial in this case and sable tail did object to the jury instructions and proposed that the standard be just compensation just compensation and that is fair compensation and but even if you would put in even if it is just compensation what the jury was deciding that is the instructions that they actually used to reach decision would have been the same regard as far as what the verdict was if they were turned well we didn't agree with the terminology of the standard florida  jury instructions regarding making the completely whole my question more of a practical how did that is that what the jury was deciding well as i said it became a feature of the trial and in fact the counsel for the landowners said that there was a difference between just in full compensation that full compensation was more robust and titling the owner to please hold the problem with that is that there was never any explanation of what difference what that difference was and when and when the jury was instructed about the substance full compensation it was that it was instructed that full compensation includes the fair market value of the property taken plus whatever damages result to the owners remaining lands as a result of the taking is the instruction one of the instructions went on to say that market value is a tool that can be used for determining the full compensation but the object should be to make the owner completely whole and that's different than the just compensation standard that sable trail believed should have been used in and in our view should have been used so it did matter in the the outcome of the jury and the district court erred in treating the standard of compensation as a choice of law and applying florida's full compensation because the verdict was clearly based on the wrong standard and the standard full compensation was argued to be a greater standard let's go back just because the wrong label that is the phraseology was full compensation as opposed to just compensation i don't think is going to get you there counsel you've got to explain how it made a difference here how it caused prejudice to your client and without any explanation of what the difference would be or without any explanation of how the substance of the instructions would have differed i just don't see how pal your client was prejudiced even if there was an  well respectfully your honor the the prejudice was in the wrong terminology being used and the suggestion that the florida standard is more rob compensation standard you would get x y and z versus under a federal standard of just compensation you it only get say x and y they were never there was no explanation like that and when you was whether it was called just compensation or full compensation if what they were told the definition was for how to arrive at an award was the same i think i'm failing to see the owner be made completely whole as different than the just compensation standard should apply that made me i'm saying that immediately after saying that in an argument council explained quote the important phraseology is that full compensation includes the fair market value of the property to be taken in any damages to the remainder property which is the very standard the district court used to instruct and to which your client a lodge no objection but the but he also said that the owner must be made completely whole and that because they will travel as a private entity they should be held to the more r civil trial is also objected to the owner testimony that was submitted and b was the basis for the jury verdict when it came to severance damages this case is different than the sentiment case where the circuit court allowed the owner testimony because there the owners lay opinion testimony was based on personal knowledge of selling property over forty over twenty five years and twenty five different properties were here the basis for the specific quantification of severance damages was in the case of le property in the county over the years and knew what purchasers would be looking for in a piece of property i think that there was evidence to that effect your hon but the basis for lee's opinion was that he wanted a one million dollars and he worked backwards to get to twelve percent severance damages to the entire remainder and that was of value to me the credibility of that testimony but the real question is whether the district court admitting that testimony and looks to me like each of the witnesses had at least enough experience with real estate and the area to provide some opinion testimony agree that they did have experience that would allow them to provide opinion testimony but not opinion testimony specifically quantifying a diminish value as a result of the season that's beyond what is contemplated for a lay opinion to the money under seven i won and i see that my time is up ok appellee landowners if i'm jumping right into the most critical point we were hopeful on behalf of our clients that the court might consider exercising discretion in using penda jurisdiction to address both issues on appeal if i look at the st and we did so because we thought it was a fitting final chapter to the framework that you judge prior had kind of set forth in some prior decisions that you made both in the black  whittington case in the carbone versus c n n case we thought that our case here was distinguished from the original earlier cases sable trail three point one two one acres decided earlier this january the summer meant case and that there let me speak to that and then i'll address the nd issue which is the owner's testimony as to the choice of all issue i really look most carefully at the decision of georgia power the circuit decision in  arguing about the attorneys to be or your honor i i think at this point the choice of law issue ties to the entitlement of attorney c d s but it would all but but but there's been no actual year yes sir except for the instance of the jury instruction also relying on the choice of law issue and i see from the questions that were given to mr harris that that the court may be inclined to see that there was no substantial difference between the just compensation measure under federal law and the state comp tell us whether the that we don't have we don't have the final determination of the amount of attorneys fees and costs and the absence of that i don't see how we get to the review of that or i understand your honor i understand that the court's framework here is to keep separate train tracks for the marriage issue that wouldn't engage the jury verdict in the final judgment and the attorneys the issue which the work of the court is not yet complete two separate train tracks final decision on the merits not a final appeal word on attorneys fees and costs and and and this jury instruction which is as best i can tell the substance of which was the same no matter what label was used i don't see how that gets you  there and we would only prefer to have the matter decided in a final format under this appeal as opposed to bouncing back at some time in the future that will take up judicial resources and the resources of the party and that was the argument we heard earlier this year yes or if it's moving specifically then to the question that the court gave mr harris i think the court's best view of this case is that there was no harmful error whether you use the state jury instructions or the federal jury instructions the difference perhaps mr harris is pointing to is that florida's full compensation standard gives a picture of making the owner whole and that fair market value isn't an exclusive tool of measurement but the jury certainly is instructed to consider fair market value as a helpful tool  rubric i think the jury made a solid decision here and i also believe as to the nd issue that there was absolutely no abuse of discretion by judge walker or judge hoc in the administration of this case  those two judges and particularly judge walker's order below denying a new trial gives a play by play of how the court considered whether there was a strong enough sufficiently strong enough foundation for the owners to give testimony and both judge walker during the preliminary motions before trial at establish the parameters and which he would consider or the trial judge should consider what would be sufficiently and miscible of the foundation judge just during the course of the trial heard both bench arguments and proffers and then heard the testimony there was no contemporaneous objection to what was objectionable that sable trial has issued on appeal there was there was no opportunity for curative instruction but really when it comes down to it this case is very much looking at the trial judge who's there to have to make the calls between what's a ball and what's a strike and after the ball game if we try to go back and in you know look at each decision that the trial court may on hold and in context i think judge walker said it well sable trails only highlighting those very questionable calls but they're ignoring that we had a complete trial that allowed both sides fair opportunity to present their cases i think it's very important for the court to understand that if there's any allegation that testimony was speculative or didn't have a substantial basis and market data that is more lodged against the sable trail pipeline company who put on an appraiser who testified to zero damages on the basis of only having two pairs of data pairings of impacted property would not impact property to arrive in an opinion paid two  was over a mile long it cleared a quarter of one hundred feet clear cutting trees and going through the fields it went through a grove of trees mature oaks and removed twenty five and left in its path a noticeable air strip looking clearing which was marked by a pipeline in orange marking saying warning every so often in the line of sight no damage for removing those oak trees that were framing a beautiful pond next to the home and land for which the owners paid a premium of twenty thousand dollars compared to the other simple pieces of the farm which average five thousand dollars an acre the pipeline quarter also went diagonally through the farmer's fields the farm grew watermelons primarily and peanuts when you irrigate for a watermelon it's very important that the soil content on and throughout the field is the same the pipeline construction disrupted that pictures showed the jury that the crops growing within the easement area were a different color and had different water characteristics in the soil than the field around it very difficult to program a computerized drip line where you have a diagonal cut through the field all of that again zero damages from sable trail the owner testimony was in to full it included the appraiser and it included the owners themselves the appraiser on the farm and the only objection here as i understand been listening to all of this and trying to figure out how it pertains to the issue we have to side with the only argument is that the district court and admitting your client's valuation testimony  seems to me they get over the low hard row for the admission of that kind of testimony but that's all we're really talking about right yes your honor and an owner doesn't need any further qualification because he's familiar the court and the case law here deems an owner to be able to give a valuation opinion of his own property both before taking and after taking yes there has to be some places that i mean these judge and in their testimony in the jury heard that and decided to either reject or accept their opinions but absolutely these were owners that testified that they had assembled the very farm in two thousand and three to two thousand and six buying each piece at different prices and these both leave thomas the father did have the appraisal training although his career was in business and he bought it so that other lands besides the farm that was made clear to the jury the testimony on the damages from lee included the fact that he felt that the pipeline compromised the exclusivity of the property if there was a loss of security there was a loss in the productivity of the crops because of the diagonal cut of the cord or through the farmer's fields his son ryan is a certified crop advisor someone that advises other farmers on forty thousand acres of land in florida and ryan's opinion was well informed even over the appraiser because he was very familiar with the improvements made to the property after purchase some of the appraisers did not consider the improvements that were made by the farmer to the condition of the land or to the improvements of the home in the guest house all of that was testified by ryan thomas and the jury apparently felt that that was persuasive so again we're dealing in an instance where the question is was there a sufficient foundation and judge and judge walker believe that the war they distinguish the two cases that were cited by sable trail the st of the th circuit decision and ones versus  the owner testified without any market basis and actually the owner testified to zero damages saying her home was completely worthless she said it had no value but she was also aware of other properties that sold in the neighborhood nearby where she was complaining that the proximity to a factory and its its use had devalued her property come plea so that case is highly distinguishable because in this instance the owners had sufficient foundation with the other case it was a northern district of alabama decision and us versus six point zero nine acres in that case if the court reached through  facts there was absolutely no reference to any market data so that sports were giving opinions without any pointing to sales that were either impacted or not impacted which is kind of the standard damage study it takes place in these proximity cases that was not done and six nine acres and owners were given opinions that had no basis in terms of looking at other properties and what their sale prices w that's different from our case where our client's testimony was in line with the range of percentage losses that the appraiser who had done a study had also prepare in this case the appraiser for the owners had fifty four dollars pairings of impact and non impact properties and if looking at the size of the property looking at this remaining yes looking at the highest and best use of the property looking at the location of the pipeline as it affected the remainder all of those elements were considered and assigning a percentage loss the owners here for the eight hundred and thirty seven acres a pine to a twelve percent damage the appraiser applying to an eight percent damage the jury awarded a nine percent damage as to the home forty acres the owner testified to a sixty percent damage the appraiser testified to a forty five percent damage in the jury arrived at a fifty percent damage fi and the jury instructions the jury was advised that they could have a verdict that was between the highest testimony a value given or the lowest and that's what they did so this is a case that i think  court particularly judge the judge walker should be commended they did an excellent job and we had a fair day in court for both sides and we have a final verdict ok thank you counsel  thank you the standard compensation became the center point of the trial was referenced nine times in the opening statement full compensation was referenced another eleven times during the the presentation of the evidence and multiple times during the closing and as i've already articulated the the argument was made that sable trailer was responsible for paying more than just compensation more than what was required under the law because it was a private entity and the combination of those factors along with the actual instruction that was given the jury instruction requiring full compensation that the owner be made completely whole for the loss and that the full compensation guaranteed by the florida constitution  make him completely whole for the loss became as a feature of the trial and that standard was not the right standard and it affected the verdict i can't explain the quote can't were allowed to testify regarding items that were allegedly same let's assume for this answer that that is that testimony was  the testimony was admissible but the standard would have remained just compensation and the market evidence would have been what determined in the market evidence is what was presented by the appraisers and so the only evidence of market evidence that could have supported it could have supported the verdict because it was below what the the owners own expert well with respect to that specific as to your honor that was the for the area of the property that was actually taken the easement area and sable trails paid for the value of that property and so any definition to that easement area was paid for and would have been included in the part taken not in damages or severance damages to the remainder which is the area that went beyond what the market evidence was differences to your view of why why aren't those things fair components the fair market value your honor those are components that could be admissible to support a diminished in value in general in fact judge walker suggested that and i think my time is running on that finish to my answer you may wrap it up just judge walker acknowledged that general feelings of  diminishing in value there might be sufficient foundation but specific quantification would require a greater foundation which was not present here ok i think we understand your