or for the these two but i will give you a little more than what we would give an ordinary case and have forty minutes so mr harris understand you're going to open with sixteen minutes court my name is bruce harrison i represent the appellant sable trail when it comes to the standard of compensation in this federal condemnation case there is no choice of law to be made jurisdiction right i think we clearly have jurisdiction over the issue about the witnesses testimony but it's not clear to me that we have jurisdiction over the attorneys fees issue because the amount the amounts of attorney's fees in both cases have not been determined right that's correct your honor but the rule was decided by the supreme court  those cases hold that when there is a finding of liability for attorney's fees at the same time as the final judgment if that issue is not appealed within the thirty dollars days after the final judgment it's waived and so that was a situation we were in in both of these cases we had a final appealable judgment in sundram and had we not addressed the standard of compensation in the attorney's fees element that went with it it would have been waived under those decisions and both of those darn at least the heloc gravel co abrogates an th circuit decision that finds inconsistent with it well it seems to me that that decision does resolve that we have jurisdiction over that about the landowners testimony right yes your honor but but what i don't i don't see how that case resolves the question about whether we have jurisdiction over the determination that attorneys fees are to be awarded as part of just compensation when the amount of attorney's fees has not yet been determine i understand the th circuit preference to have the issues decided on appeal at the same time both the liability and the amount the problem is where the liability has been decided becomes clear then there can be no liability for attorneys fees and so the court said we can go ahead and resolve that because having resolved this other issue over which we clearly station that necessarily means there should not have been an attorney's feel ward that's not our situation no your honor and i'm maybe i'm not being clear in home explaining the supreme court case is that those cases hold that failure to appeal a judgment that has a finding of liability for attorney's fees if that's not done within the thirty days after the final judgment is entered its way in fact that's precisely what happened in the in the bud in a case it was a th circuit decision and the the there was a final judgment that found entitlement to attorneys fees there was some post final judgment litigation that occurred and ultimately the litigate the attorneys fees were liquidated and from that order the appellant appeal the th circuit dismissed the appeal and said there was no jurisdiction because they hadn't appealed the original final judgment that had resolved all of the underlying case and resolve the issue of liability for attorney's fees budnick the supreme court affirmed the th circuit took some issue with that and subsequent cases and dealt with whether or not the attorneys fees issue went to the merits of the case  whether it applied if it was based on a contractual provision and there was some uncertainty among the circuits and uncertainty really in the th circuit the halak gravel company case supreme court case  the attorneys fees were should have been awarded or not right the issue in those cases were that failure to appeal it with the final judgment resulted in waiver you know free with when it comes to the witness's testimony the landowners testimony i think if you didn't appeal you would waive the right ok so as i said earlier i think there is jurisdiction over that and i think to that ok but but but in turn in so far is our review of the attorneys fees determination i don't see how under our precedents we can have jurisdiction to resolve that until the amount is determined and i don't see how any of the spring court the supreme court cases say otherwise i understand your point now your honor and with respect to the sunderland  testimony the court can exercise pendent jurisdiction and here the attorneys fees question even though it is not a completely resolved attorney's fees liability and amount how are those two issues next intertwined you have an entry issue in the attorneys to the attorney the attorney's fees issue goes to the standard of compensation that the should be applied in the case and that is an extra completely involved in the finding in the final judgment regarding compensation so it's not necessarily directly an expert in mind with the evidentiary question but it is with the merits of the final judgment because i say it was testimony was admissible and that there was nowhere right if we make that determination in no way speaks one way or another to the issue about attorney's fees does it it does not your honor but which means they're not  intertwined failure to have appealed the attorneys fees issue would have resulted in waiver of that issue and so we had to appeal that in order to not wa not put or klein a position where that way that's your you know you thought that but if we say that's not right then we don't have a problem right because then then you can appeal once the amounts to terminate right provided that the now and so if that's the courts preference then i think we would need that clarity that we can appeal it after the determination of the amount you want to talk about the testimony is s owners are presumed qualified to testify about the before value of their property that's opinion testimony and they're presumed to have that that skill to and the knowledge to testify about before  their property but that presumption does not apply to the after value where that after value is based on a stigma in an eminent domain case the what the after value does they specifically denoted the amount of severance damages and it was not supported by the landowners expert witness who was only supported by the landowners testimony  that's true but but the amount of the severance damages that led to that final amount in the iraq atory verdict was only supported by the landowners testimony  opinion is not something that can come in under rule seven hundred and one because it's not something that's within the reason reasoning familiar in everyday life and since it can't come in under seven i wanted has to come in an hour seven o two and been didn't establish that she had the requisite predicate so just like the owner and williams v mosaic show she had worked with potential buyers right and had her on her look own knew they were looking for a place  and unlike williams she did not say that the letter that her home had no present value from this was a situation where she said look i thought i could it could sell for one hundred and forty thousand dollars it just lacked value for residential purposes it could be sold for other uses she had experience with selling the land she acted basically as a defacto real estate agent for her land right no if she did not your honor she had experience selling the land and that may go to her ability to testify about the before value but she didn't have any experience dealing with property that had been encumbered by a natural gas pipeline in the things that you just referred to would go to a general statement which would have been admissible that she thinks the value of her property is less if you could make that general statement and that would have been acceptable but when she went to quantify it she had to have a specific predicate predicate that she lacked and so the qualification and the after value are the problem and because there was no predicate it was error to allow that and since it was the the landowners burden of proof on severance damages and her testimony was the only thing that established enough evidence or amount for the award of severance damages that error was fundamental to the to the verdict and for that reason the case should be remanded i thought the the old precedents that still bind us make clear that a landowner can testify to the before and after value without further qualification we doesn't say that your honor and that's a more recent decision what william's away as though is to me distinguishable because william's is the situation that i mentioned earlier where the landowner says that it has no present value at all and we said that that was pure speculation that's not that's pretty different from what occurred here what the what the landowner testified to here right i respectfully disagree your honor the landowner testified here that as a result of the pipeline two thirds of our property twenty of the thirty developable acres was not suitable for residential development that's exactly what mr williams said it's not suitable for a house said it was no it had no present value period that in williams that's not what this land said just for residential purposes it wasn't going to be suitable admitted that it could be that it could have value for other purposes right that's different for simply agricultural that's right that's right testimony there was that it was pure quote pure value less and it had no present value that's not that's not the same it is there is a distinction because there is a value that it's remaining and sunderland's testimony but where they are similar and i would say the same is that it was no value for residential purposes and that equates to my home residence is worth nothing without any predicate without ever trying to buy or sell the property which she admitted she never tried to buy or sell property that had a natural gas pipeline associated with it he gave reasons why he thought it would be unacceptable for residential she did in that the nature of the people who are looking to buy land like the reason they're buying and she did have a base that she had a basis that would lead to a conclusion that she thought the value was less what she didn't have a basis for pretty clear indication we're going on that your honor in our view we actually would see this decision as a final judgment on the question of the payment the obligation to include attorneys fees as part of the full compensation that is owed under florida law but the question of the specific dollar amount would be something that would be resolved remained with a hearing and i don't know what that that prevents the court from addressing the liability of including the attorneys fees as part of compensation so i would suggest respectfully that the court could take that up could affirm the lower judge moody's order and i'm looking at it right now which styles as a final judgment and has a very specific procedure to determine the amount of the attorney's fees is provided under florida's law and that the court could remain and it to him with instructions just to determine if held before the haven't we that if you determine at the district court determines liability for attorney's fees without determining the amount that's non final water then again i was he styled it as a final judgment and retain that jurisdiction i don't know that the issue the legal issues change with the fact that if he awards one hundred thousand dollars or fifty thousand dollars or whatever of the amount would be that that would change the merits that this court's asked to pass upon so but again i do understand where you seem to be inclined to go on that issue your honor i will address the ability of gnc wunderman to testify and you brought up some very good points here on her about her background  qualifications this is nothing like rhonda williams in the williams mosaic case because jean sentiment did have a foundation of knowledge about her property familiarity with their property familiarity with property owners or property purchasers what they wanted what she could sell the property for how she could subdivide it and that background certainly as an owner qualifies her to testify and certainly not reversible error to justify remain ending in having a new trial just because she testified and as you noted as well the testimony that she provided and i have the numbers in front of me she said it about three hundred and sixty thousand dollars total compensation for the diminished in value for her property the jury awarded three hundred and nine thousand five hundred the expert her expert testified to a total of three hundred and fifteen thousand dollars so it really is harmless error in terms of her testimony to the real outlier was what sable trails appraiser said which was it was fifty six thousand so this distinction which you noted is about nine thousand dollars between what the jury awarded and some of the testimony certainly doesn't justify ending reversing and overturning this jury verdict the jury had an opportunity in sable trailhead knopper to ninety to cross examine her when she was on the stand that's where the should bring up those issues not trying to exclude her from testifying entirely so they had the opportune to cross examine her if they wanted to ask what her foundation was or additional questions they certainly could do that the jury did not simply rubber stamp what she testified to but the jury considered all the information and all the testimony about the property value so it's certainly not a basis to overturn in is i noted you know the williams case simply is not applicable here because as you noted judge pryor that was where she said the property had no value at all she really didn't have a foundation it also says in that opinion that run to williams never talked to an appraiser never talk to real estate agent never sold the property that is certainly not the foundation the g m sentiment brought to her testimony i can discuss that point further if the court wishes or i can address the point about the choice of law issue as well i know it seems that you're not going to want to get into that but so i leave that to into what the owner wants for compensation not based on fair market value and that's what happened here but just because the owner testifies to it doesn't mean that the the fact finder has to credit the testimony it only means that the testimony is admissible and can be considered for whatever weight the court records it doesn't mean that the district court will accept it as is correct well the district court doesn't whether or not the jury accepted and i understand i mean whoever the fact finder is in where the condom nor is a private entity day can private property and the owner is a sympathetic witness and someone whose land is being taken that's the effect of allowing this quantification it's the reason that other courts have excluded after testimony especially in the context of stigma damages just as was done in williams beam is a again in cases that we've cited in our brief the rule if there is a rule is that owners are permitted to testify about the before value of property but they are not qualified to testify about the after value and that that is best left to experts who have the training have the skill to do paired sales and that's exactly what happened in this case both the both of the experts use that type of analysis to come up with their opinions of value and it should be left at that your honor you made it clear that you don't wan hear the issue on the standard of compensation it wasn't addressed in the opening and it wasn't addressed in the rebuttal so you can't reply about something that hasn't been discussed thank you your honor and the court has no further questions no thank you we're in recess until tomorrow morning