White v. Department of Transportation

District Court of Appeal of Florida

White v. Department of Transportation

645 So. 2d 114, 1994 Fla. App. LEXIS 10827, 1994 WL 627377

CourtDistrict Court of Appeal of Florida

DecidedNovember 10, 1994

DocketNo. 94-276

StatusPublished

This text of 645 So. 2d 114 (White v. Department of Transportation) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

White v. Department of Transportation, 645 So. 2d 114, 1994 Fla. App. LEXIS 10827, 1994 WL 627377 (Fla. Ct. App. 1994).

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Opinion

GRIFFIN, Judge.

We reverse the final judgment because we agree with appellants that it was error for the lower court to permit appellee, Department of Transportation [“DOT”], to “cross-examine” appellant, W. Garnett White [“White”], by having him publish to the jury portions of a report prepared by an appraiser he had hired as a testifying expert but had elected not to call as a witness. Appellant White did not testify he had relied on the report or made use of it in forming his own opinions of the value of his property. Further, this procedure violates the rule set forth in Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938, 940-41 (Fla. 5th DCA 1981). There, in the context of condemnation, we authorized the landowner’s use of an expert hired by the condemning authority but we expressly disallowed any inference that the party who hired but then failed to call the expert was covering up harmful evidence or concealing bad facts. Id. at 940. Such an inference is unmistakable here. We find no merit in DOT’s argument that this was a permissible measure to alleviate DOT’s surprise at appellant’s last minute decision not to call his expert MAI appraiser and instead to rely on appellant’s own testimony as a real estate broker.

REVERSED and REMANDED.

COBB and PETERSON, JJ., concur.

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GRIFFIN, Judge.

We reverse the final judgment because we agree with appellants that it was error for the lower court to permit appellee, Department of Transportation [“DOT”], to “cross-examine” appellant, W. Garnett White [“White”], by having him publish to the jury portions of a report prepared by an appraiser he had hired as a testifying expert but had elected not to call as a witness. Appellant White did not testify he had relied on the report or made use of it in forming his own opinions of the value of his property. Further, this procedure violates the rule set forth in Sun Charm Ranch, Inc. v. City of Orlando, 407 So.2d 938, 940-41 (Fla. 5th DCA 1981). There, in the context of condemnation, we authorized the landowner’s use of an expert hired by the condemning authority but we expressly disallowed any inference that the party who hired but then failed to call the expert was covering up harmful evidence or concealing bad facts. Id. at 940. Such an inference is unmistakable here. We find no merit in DOT’s argument that this was a permissible measure to alleviate DOT’s surprise at appellant’s last minute decision not to call his expert MAI appraiser and instead to rely on appellant’s own testimony as a real estate broker.

REVERSED and REMANDED.

COBB and PETERSON, JJ., concur.

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645 So. 2d 114, 1994 Fla. App. LEXIS 10827, 1994 WL 627377, Counsel Stack Legal Research, https://law.counselstack.com/opinion/white-v-department-of-transportation-fladistctapp-1994.

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