DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

INDIAN RIVER COUNTY,

Appellant,

v.

OCEAN CONCRETE, INC. and GEORGE MAIB,

Appellees.

No. 4D19-3611

[November 25, 2020]

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, 

Indian River County; Janet Croom, Judge; L.T. Case No. 

312007CA011589.

Dylan Reingold, County Attorney, and Paul R. Berg of Vocelle & Berg, 

L.L.P., Vero Beach, for appellant.

Geoffrey D. Smith, Susan C. Smith, and Stephen B. Burch of Smith & 

Associates, Melbourne, for appellee George Maib.

FRINK, KEATHAN, Associate Judge.

Appellant, Indian River County Board of County Commissioners (“the 

County”), raises several issues on appeal following the trial court’s entry 

of final judgment in favor of Appellee, George Maib (“the landowner”), 

stemming from a jury trial to determine damages under the Bert J. Harris, 

Jr., Private Property Rights Protection Act (“Bert Harris Act”).1 We affirm 

on all issues, but write to address the County’s arguments concerning the 

exclusion of two of the County’s expert witnesses and the admission of the 

landowner’s opinion testimony as to the value of his property.

Background

The landowner purchased approximately 8.5 acres of real estate in 

Indian River County, intending to build a concrete batch plant. When the 

landowner bought the land, it was zoned as light industrial, and a concrete 

batch plant was an allowable use under the then-existing land 

1 The Bert Harris Act is codified in section 70.001, Florida Statutes (2008).
2

development regulations. However, after the landowner took steps to 

develop and build the concrete batch plant on his property, the County 

amended the zoning regulations to exclude concrete batch plants as an 

allowable use. Doing so precluded the landowner from building a concrete 

batch plant on the property as planned. 

The landowner sued the County under the Bert Harris Act, seeking 

compensation for the loss of his ability to construct the concrete batch

plant, attaching an appraisal report in support. See § 70.001(4)(a), Fla. 

Stat. (2008). However, the County declined to settle, and the claim 

ultimately proceeded to trial alongside the landowner’s Penn Central2

taking and procedural and substantive due process violation claims. 

Importantly, the trial court limited trial to liability only, with a jury 

considering the procedural due process claim and the trial court 

considering the landowner’s Penn Central taking, Bert Harris Act, and 

substantive due process violation claims. Both the jury and the court 

found in the County’s favor on all counts. 

The landowner appealed, raising three issues, and this Court affirmed

on two and reversed on one. Ocean Concrete, Inc. v. Indian River Cty., Bd. 

of Cty. Comm’rs, 241 So. 3d 181, 183 (Fla. 4th DCA 2018). Specifically, 

this Court held that the trial court erred in concluding that the landowner

failed to prove entitlement to relief under the Bert Harris Act. Id. We held 

that the landowner had a reasonable investment-backed expectation in 

constructing a concrete batch plant and that the trial court erred in finding 

that a concrete batch plant was not an “existing use” for the property. Id.

at 188–90. We therefore reversed and remanded to the trial court for a 

trial on damages under the Bert Harris Act. Id. at 190.

Prior to the trial on damages, both the landowner and the County filed 

a multitude of motions in limine. Specifically, the landowner sought to 

exclude testimony from two of the County’s expert witnesses, Dr. Fishkind 

(“economist”) and Mr. Underwood (“appraiser”). The County intended to 

offer the economist to testify on the market for concrete batch plants and 

whether the proposed plant was economically feasible, and intended to 

offer the appraiser to testify that the concrete batch plant was not the 

highest and best use either before or after the change in land development 

regulations. The County, in turn, sought to exclude the landowner’s 

opinion testimony as to his property’s value.

 

The trial court granted the landowner’s motions in limine to exclude

the testimony of the economist and the appraiser. The court ruled that 

2 Penn Cent. Transp. Co. v. City of N.Y., 438 U.S. 104 (1978).
3

the economist’s proffered testimony was contrary to the Bert Harris Act,

which requires that the property be valued as though the owner had the 

ability to attain his reasonable investment-backed expectation (in this case 

as a concrete batch plant). The court also ruled that the economist’s 

testimony was contrary to this Court’s prior decision in Ocean Concrete 

Inc., which found that a concrete batch plant was considered an “existing 

use” that created a value in the property greater than the fair market value 

of the actual, present use or activity on the real property as vacant land. 

241 So. 3d at 188. Similarly, the court excluded the appraiser’s testimony 

because it sought to value the property as vacant land with a potential use 

other than as a concrete batch plant. The trial court also excluded the 

appraiser’s testimony because it was based in part on the economist’s 

testimony as to the economic feasibility of concrete batch plants.

The trial court, however, denied the County’s motion in limine to 

exclude the landowner’s opinion testimony as to the value of his own 

property. The trial court reasoned that it is the general rule in Florida that 

a property owner may testify as to the value of his or her own property.

Subsequently, at trial, the court denied the County’s requests to 

reconsider the exclusion of the economist and the appraiser. After hearing 

testimony from other witnesses—including the landowner’s opinion 

testimony as to his property’s value—the jury found the landowner’s favor,

awarding him $2 million in damages. The trial court thereafter denied the 

County’s “Motion to Set Aside the Verdict and in the Alternative Motion for 

new Trial,” and issued a Final Judgment, awarding the landowner $2 

million plus $1,302,577.00 in prejudgment interest. From this Final 

Judgment, the County now seeks our review.

Analysis

The County mainly appeals the trial court’s exclusion of the economist

and the appraiser based on its interpretation of the Bert Harris Act. The 

County also appeals the trial court’s finding that the Bert Harris Act allows

a property owner to testify as to his or her property’s value. 

We review an issue involving statutory interpretation de novo. Bair v. 

City of Clearwater, 196 So. 3d 577, 581 (Fla. 2d DCA 2016); City of 

Jacksonville v. Smith, 159 So. 3d 888, 889 (Fla. 1st DCA 2015). Further, 

“[a] trial judge’s ruling on the admissibility of evidence will not be disturbed 

absent an abuse of discretion . . . [and] is limited by the rules of evidence.” 

Hayes v. Wal-Mart Stores, Inc., 933 So. 2d 124, 126 (Fla. 4th DCA 2006)

(quoting Johnston v. State, 863 So. 2d 271, 278 (Fla. 2003)). We must 

determine if the trial court’s exclusion or allowance of the witnesses was 
4

based on an erroneous view of the law or a clearly erroneous assessment 

of the evidence. See Salazar v. State, 991 So. 2d 364, 373 (Fla. 2008). We 

do not reach that conclusion as to either issue. 

A. The Exclusion of the Economist and the Appraiser

The Bert Harris Act addresses circumstances when the government 

enacts laws, regulations or ordinances that “may inordinately burden, 

restrict, or limit private property rights without amounting to a taking 

under the State Constitution or the United States Constitution.” §

70.001(1), Fla. Stat. (2008). We previously held that the landowner’s 

concrete batch plant was an “existing use,” that he had a reasonable, 

investment-backed expectation in constructing the concrete batch plant, 

and that the County inordinately burdened the property. Ocean Concrete, 

Inc., 241 So. 3d at 188–90. Our holding became the law of the case.

Under the law of the case doctrine, questions of law that 

have actually been decided on appeal “must govern the case 

in the same court and the trial court, through all subsequent 

stages of the proceedings.” This doctrine includes not only 

issues explicitly ruled upon by the court, but also those issues 

which were “implicitly addressed or necessarily considered by 

the appellate court’s decision.”

Langer v. Fels, 93 So. 3d 1069, 1072 (Fla. 4th DCA 2012) (quoting Fla. 

Dep’t of Transp v. Juliano, 801 So. 2d 101, 105–06 (Fla. 2001)). 

Accordingly, the only issue remaining following our holding was damages.

The Legislature, in enacting the Bert Harris Act, provided the method 

and formula which courts must use to determine damages under the Act: 

Following its determination of the percentage of 

responsibility of each governmental entity, and following the 

resolution of any interlocutory appeal, the court shall impanel 

a jury to determine the total amount of compensation to the 

property owner for the loss in value due to the inordinate 

burden to the real property. The award of compensation shall 

be determined by calculating the difference in the fair market 

value of the real property, as it existed at the time of the 

governmental action at issue, as though the owner had the 

ability to attain the reasonable investment-backed expectation

or was not left with uses that are unreasonable, whichever the 

case may be, and the fair market value of the real property, as 

it existed at the time of the governmental action at issue, as 
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inordinately burdened, considering the settlement offer 

together with the ripeness decision, of the governmental entity 

or entities. In determining the award of compensation, 

consideration may not be given to business damages relative 

to any development, activity, or use that the action of the 

governmental entity or entities, considering the settlement 

offer together with the ripeness decision has restricted, 

limited, or prohibited. The award of compensation shall 

include a reasonable award of prejudgment interest from the 

date the claim was presented to the governmental entity or 

entities as provided in subsection (4).

§ 70.001(6)(b), Fla. Stat. (2008) (emphasis added). 

The County first argues the trial court misinterpreted the “as though 

the owner had the ability to attain the reasonable investment-backed 

expectation” language as an instruction on how to value the property and 

not when to value the property. The County maintains this language

requires the jury to determine the property’s fair market value when the 

landowner had the ability to use the property for the intended use as a 

concrete batch plant rather than, as the trial court ruled, an instruction 

that the property must be valued with the landowner’s intended use as a 

concrete batch plant as the highest and best use. According to the County, 

a concrete batch plant was not the property’s highest and best use before 

it was inordinately burdened, resulting in no diminution in value.

A statute must be given its plain and obvious meaning when the 

language “is clear and unambiguous and conveys a clear and definite 

meaning.” Rollins v. Pizzarelli, 761 So. 2d 294, 297 (Fla. 2000) (quoting 

Modder v. Am. Nat’l Life Ins. Co., 688 So. 2d 330, 333 (Fla. 1997)). “Every 

statute must [also] be read as a whole with meaning ascribed to every 

portion and due regard given to the semantic and contextual 

interrelationship between its parts.” Fla. Dep’t of Envtl. Prot. v. 

ContractPoint Fla. Parks, LLC, 986 So. 2d 1260, 1265 (Fla. 2008) (quoting 

Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452, 455

(Fla. 1992)). 

The Bert Harris Act’s plain meaning compels a rejection of the County’s 

position. The Bert Harris Act clearly provides that the calculation of the 

loss in fair market value of a property that has been inordinately burdened 

is the difference between: 1) “the fair market value of the real property, as 

it existed at the time of the governmental action at issue, as though the 

owner had the ability to attain the reasonable investment-backed 

expectation”; and 2) “the fair market value of the real property, as it existed 
6

at the time of the governmental action at issue, as inordinately burdened.” 

§ 70.001(6)(b), Fla. Stat. (2008). While both parts are similar, the 

distinguishing clauses are “as though the owner had the ability to attain 

the reasonable investment-backed expectation” and “as inordinately 

burdened.” We must read these clauses in conjunction with the rest of 

the statute.

The Bert Harris Act defines an inordinate burden as:

an action of one or more governmental entities [that] has 

directly restricted or limited the use of real property such that 

the property owner is permanently unable to attain the 

reasonable, investment-backed expectation for the existing use 

of the real property or a vested right to a specific use of the 

real property with respect to the real property as a whole, or 

that the property owner is left with existing or vested uses that 

are unreasonable such that the property owner bears 

permanently a disproportionate share of a burden imposed for 

the good of the public, which in fairness should be borne by 

the public at large.

§ 70.001(3)(e) Fla. Stat. (2008) (emphasis added).

The damages provision under section 70.001(6)(b), Florida Statutes

(2008), read along with the definition of inordinate burden, tells us that 

“as inordinately burdened” essentially means as though the owner did not 

have the ability to attain the reasonable investment-backed expectation. 

Thus, the statute’s damages provision anticipates a valuation before and 

after the investment-backed expectation loss. In other words, the 

valuation is focused on the investment-backed expectation itself, rather 

than a potentially higher value use. It is important to remember that the 

Bert Harris Act’s purpose is to determine the investment-backed 

expectation loss. To value the property otherwise would result in an 

unnecessary and irrelevant valuation. 

With that in mind, the trial court properly excluded the economist’s and 

the appraiser’s testimony, in part, based upon the Bert Harris Act’s plain 

meaning. Doing so did not constitute an abuse of discretion.3 The 

economist sought to testify as to the concrete batch plant’s economic 

3 Because we hold that the trial court’s exclusion of these witnesses based on its 

interpretation of the statute’s “as though the owner had the ability to attain the 

reasonable investment-backed expectation” provision was appropriate, we do not 

address whether the trial court misinterpreted “existing use.”
7

feasibility to demonstrate that it was not the highest and best use, and the 

appraiser—whose testimony relied upon the the economist’s analysis—

sought to value the property as something other than a concrete batch 

plant. Neither expert offered testimony complying with section 

70.001(6)(b), Florida Statutes (2008). 

We note that the County was not without remedy following the trial 

court’s exclusion of the testimony of the economist and the appraiser. The 

motions in limine excluding these witnesses were initially heard and ruled 

upon before the start of trial.4 The County could have requested leave 

from the trial court to speak with its witnesses, or to inform them of the 

trial court’s ruling and determine if they could offer testimony in 

compliance therewith. However, the record does not reflect any such 

attempt by the County. 

To the extent the County’s proffered testimony from the appraiser

concerning the property’s value as inordinately burdened would not have 

violated the trial court’s interpretation of the statute’s “as though the 

owner had the ability to attain the reasonable investment-backed 

expectation” language, we further note that any such testimony would not 

implicate the full damages calculation under section 70.001(6)(b), Florida 

Statutes (2008). Moreover, the appraiser’s proffered testimony 

demonstrated that he sought to value the property, as inordinately 

burdened, with a value lower than the value to which the landowner’s 

expert testified. Thus, any potential error in excluding this testimony was 

harmless. See Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 

2014). Accordingly, we hold the trial court correctly interpreted the Bert 

Harris Act, and that the exclusion of both the economist and the appraiser

was therefore not based on an erroneous interpretation of the law.

B. The Landowner’s Opinion Testimony

The County also argues the trial court erred in permitting the 

landowner to testify as to his property’s value because the Bert Harris Act 

allegedly precludes such testimony. We disagree.

 

The statute requires a property owner, who is burdened by the action 

of a governmental entity and thus seeking compensation, to first submit a 

claim in writing to the head of the governmental entity along with a “valid 

4 The four-day trial was held from September 23 through September 26, 2019. 

The trial court first ruled on the motion in limine as to the economist during an 

August 15, 2019 pretrial hearing and ruled on the motion in limine as to the 

appraiser in a September 20, 2019 pretrial order.
8

appraisal that supports the claim and demonstrates the loss in fair market 

value to the real property.” § 70.001(4)(a), Fla. Stat. (2008). While the 

statute does not state who may testify as to the property’s fair market value

at trial, legal precedent allows a property owner to testify as to its value. 

Craig v. Craig, 982 So. 2d 724, 729 (Fla. 1st DCA 2008) (“Generally, an 

owner of property can testify as to its value, whether or not the owner is 

qualified as an expert.”); Reliance Ins. Co. v. Pro-Tech Conditioning & 

Heating, 866 So. 2d 700, 701 (Fla. 5th DCA 2003) (“Florida and other 

jurisdictions permit an owner to testify as to property damages and 

value.”). However, this legal precedent is not without restriction.

An owner is qualified to testify to the value of his property 

based on a presumed familiarity with the characteristics of 

the property, knowledge or acquaintance with its uses and 

purposes, and experience in dealing with it. An owner must 

be shown to have knowledge regarding the property and its 

value sufficient to qualify him.

 

B & B Tree Serv., Inc. v. Tampa Crane & Body, Inc., 111 So. 3d 976, 978 

(Fla. 2d DCA 2013) (internal quotation marks and alterations in original 

omitted) (quoting Craig, 982 So. 2d at 729).

The County argues the Bert Harris Act requires that a property owner 

submit only a valid appraisal in support of the claim demonstrating the 

loss in fair market value, without allowing the property owner to testify at 

trial concerning the property’s value. But the County’s position conflicts

with the entire purpose of a trial on damages to determine the 

compensation amount. The statute references only that the appraisal 

must demonstrate the loss in the fair market value. § 70.001(4)(a), Fla. 

Stat. (2008). Nothing precludes the owner from testifying as to his or her 

own knowledge of the property. The statute did not override legal 

precedent allowing the landowner to testify as to his property’s value. See 

Reliance Ins. Co., 866 So. 2d at 701.

Moreover, the landowner demonstrated familiarity with and knowledge 

of the property that sufficiently qualified him to testify as to his property’s 

value. B & B Tree Serv., Inc., 111 So. 3d at 978. The landowner testified 

that after he purchased the property, he hired a team of professionals, 

surveyors, and individuals to advise him on the property. He testified that 

he made physical alterations and improvements to the property after 

purchasing it, such as clearing the land, re-sleeving an old well, putting in 

two five-inch wells, installing another well for potable water, and relocating 

473 palm trees to the property’s perimeter to act as a buffer. He also

testified his concrete batch plant was going to be state of the art and the 
9

property’s slope and triangular design along its rail side, plus its natural 

buffer zones, added value for his intended use. 

We further note the County was not prejudiced as a result of the 

landowner’s testimony because it thoroughly cross-examined him, and the 

jury had ample opportunity to weigh his testimony. With these 

considerations in mind, we hold the trial court did not abuse its discretion 

in allowing the landowner to testify about his property’s value.

Conclusion

Because we hold that the trial court properly interpreted the Bert Harris 

Act to exclude the testimony of both the economist and the appraiser, and 

because we hold the trial court did not abuse its discretion in allowing the 

landowner to testify as to the value of his property both before and after 

the inordinate burden, we affirm as to those issues. We also affirm as to 

all other issues on appeal.

Affirmed.

DAMOORGIAN and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.