Opinion
No. 3D10-2024 Lower Tribunal No. 03-8255
09-12-2012
Florida Department of Agriculture and Consumer Services, etc., Appellant, v. Evelyn Lopez-Brignoni, et al., Appellees.
Clarke Silverglate and Wesley R. Parsons, for appellant. Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph Serota; Grossman Roth and Robert C. Gilbert; Lytal, Reiter and William S. Williams (West Palm Beach); Berman DeValerio and Michael J. Pucillo (Palm Beach Gardens), for appellees.
Not final until disposition of timely filed motion for rehearing.
An appeal from a non-final order from the Circuit Court for Miami-Dade County, Pedro P. Echarte, Jr., Judge.
Clarke Silverglate and Wesley R. Parsons, for appellant.
Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph Serota; Grossman Roth and Robert C. Gilbert; Lytal, Reiter and William S. Williams (West Palm Beach); Berman DeValerio and Michael J. Pucillo (Palm Beach Gardens), for appellees. Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
LAGOA, J.
The Florida Department of Agriculture and Consumer Services ("Department") appeals a non-final order granting an amended motion for class certification filed by the representatives of a putative class of Miami-Dade County homeowners ("homeowners") affected by the Department's Citrus Canker Eradication Program ("CCEP").
I. FACTUAL AND PROCEDURAL HISTORY
The proceedings below were initiated on behalf of the homeowners to recover compensation for the destruction of healthy residential citrus trees by the Department pursuant to its CCEP. After this Court remanded the matter for a hearing on class certification, Fla. Dep't of Agric. v. In re Citrus Canker Litig., 941 So. 2d 461 (Fla. 3d DCA 2006), the trial court conducted a three-day evidentiary hearing on the issue of certification. The homeowners sought to certify the following class under Florida Rule of Civil Procedure 1.220:
All owners of citrus trees situated within Miami-Dade County, incorporated or otherwise, not used for commercial purposes, which were not determined by the Department to be infected with citrus canker and were destroyed under the CCEP on or after January 1, 2000 (the "Class").
Following the hearing, the trial court entered a detailed, twenty-six page order granting the homeowners' amended motion for class certification and certified the class. This appeal followed. Because we find no abuse of discretion we affirm the certification.
A trial court's order certifying a class and determining the adequacy of the putative class representatives is reviewed for abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 98 (Fla. 2011); United Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So. 2d 23, 25 (Fla. 3d DCA 2006); Neighborhood Health P'ship, Inc. v. Fischer, 913 So. 2d 703, 706 (Fla. 3d DCA 2005). Absent an abuse of that discretion, the trial court's order must be affirmed.
II. ANALYSIS
On appeal, the Department raises four arguments. Specifically, the Department asserts that: (1) the loss of the trees is not compensable because the destroyed citrus trees constituted a public nuisance; (2) the homeowners have neither a private cause of action for additional compensation under section 581.1845, Florida Statutes, nor a claim for inverse condemnation under Patchen v. Florida Department of Agriculture & Consumer Services, 906 So. 2d 1005 (Fla. 2005); (3) the trial court applied an improper measure of damages for the destroyed trees; and, (4) the homeowners are not suitable class representatives because they are not committed or able to pay the costs of the litigation. We find no merit to any of the Department's four arguments, and affirm the trial court's order granting class certification. We do, however, address the Department's second and third arguments. A. Private Right of Action vs. Inverse Condemnation
With regard to its second argument, the Department asserts that section 581.1845, Florida Statutes (providing for "compensation to eligible homeowners whose citrus trees have been removed under a citrus canker eradication program") does not create a private cause of action, and further, that the homeowners' inverse condemnation claim is precluded by Patchen. The Department's argument essentially challenges the homeowners' standing to assert their statutory and inverse condemnation claims and is relevant to its argument in the certification context to the extent it implicates that threshold question of law. See Ferreiro v. Phila. Indem. Ins. Co., 928 So. 2d 374, 376 (Fla. 3d DCA 2006).
The provision of the Florida Constitution providing that "[n]o private property shall be taken except for a public purpose and with full compensation," Art. X, § 6(a), Fla. Const., is self-executing; therefore, "it is immaterial that there is no statute specifically authorizing recovery for loss." Dep't of Agric. & Consumer Servs. v. Mid-Florida Growers, Inc., 521 So. 2d 101, 103 n.2 (Fla. 1988). "[T]he point is that the common law and statutory provisions for inverse condemnation do not displace the constitutional requirement for just compensation . . . ." Dep't of Agric. & Consumer Servs. v. Bogorff, 35 So. 3d 84, 90 (Fla. 4th DCA), review denied, 48 So. 3d 835 (Fla. 2010), cert. denied, 131 S. Ct. 2874 (2011).
The relevant compensation portion of Florida's Citrus Canker Law, § 581.1845(4), Fla. Stat. (2006), provides:
Section 581.1845, Florida Statutes (2006), was repealed in 2010. See Ch. 10-35, § 1, at 316, Laws of Fla.
The specification of a per-tree amount paid for the residential citrus canker compensation program does not limit the amount of any other compensation that may be paid by another entity or pursuant to court order for the removal of citrus trees as part of a citrus canker eradication program.As the Florida Supreme Court has stated:
[The] Citrus Canker Law sets a compensation floor that is consistent with the established principle that "the determination of what is just compensation . . . is a judicial function that cannot be performed by the Legislature."Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So. 2d 774, 785 (Fla. 2004) (quoting State Plant Bd. v. Smith, 110 So. 2d 401, 407 (Fla. 1959)); see also Patchen, 906 So. 2d at 1008 ("[W]e conclude that the schedule established by the Legislature sets a floor but does not determine the amount of compensation. When the State destroys private property, the State is obligated to pay just and fair compensation as determined in a court of law." (quoting Haire, 870 So. 2d at 785)).
In sum, it is not only beyond legislative purview to displace the constitutional requirement of just compensation upon a taking, but section 581.1845 expressly contemplates the entry of a court order obligating the State to compensate a homeowner for the destruction of his or her residential citrus trees under the CCEP in excess of the statutory per-tree amount. The Florida Supreme Court, finding the statute remedial, gave section 581.1845 its plain meaning, "which is to provide compensation to homeowners who had trees destroyed on or after January 1, 1995." Patchen, 906 So. 2d at 1008. Although the concurring and dissenting opinions in Patchen suggest concern over whether the majority opinion impliedly eliminated the right to pursue an inverse condemnation claim for the destruction of residential citrus trees, the majority opinion limits the scope of its opinion to the certified question posed. See Patchen, 906 So. 2d at 1005-09. Accordingly, "[i]f the compensation required by the Constitution exceeds a statutory amount, the State will have to pay that amount." Bogorff, 35 So. 3d at 91. B. Measure of Damages
The certified question that the Supreme Court in Patchen answered in the negative was the following:
Does the Florida Supreme Court's decision in Department of Agriculture & Consumer Services v. Polk, 568 So. 2d 35 (Fla. 1990), which held that the Department's destruction of healthy commercial citrus nursery stock within 125 feet of trees infected with citrus canker did not compel state reimbursement, also apply to the Department's destruction of uninfected, healthy noncommercial, residential citrus trees within 1900 feet of trees infected with citrus canker?
With regard to the proper measure of damages, the Department argued below that the exclusive lawful measure of damages for the destroyed trees was the diminution in value of the homeowners' real property. The homeowners, instead, sought only the "replacement cost" of their lost trees as full compensation. The trial court adopted the replacement cost of the destroyed citrus trees as the measure of damages. On appeal, the Department argues that the trial court abused its discretion when it failed to adopt the diminution in value of the homeowners' real property as the proper measure of damages. For the following reasons, we cannot find that the trial court abused its discretion by using replacement cost as the measure of damages in determining whether to certify the class.
First, although the Department would limit damages to the diminution in value of the homeowners' real property, it is widely accepted that an award measured by the cost of replacing the destroyed property is a proper measurement of damages. See, e.g., Atl. Coast Line R.R. Co. v. Saffold, 178 So. 288, 290 (Fla. 1938) ("If property on the land is injured or destroyed, the measure of damages is the value of the property injured or destroyed."); Fiske v. Moczik, 329 So. 2d 35 (Fla. 2d DCA 1976) (proper measure of plaintiff's damages was the replacement cost of the trees removed from the plaintiff's property).
Indeed, this measure of damages has been approved by the Fourth District in a pair of decisions arising out of the same case. In Florida Department of Agriculture & Consumer Services. v. City of Pompano Beach, 829 So. 2d 928, 931 (Fla. 4th DCA 2002), the Fourth District affirmed an order certifying a class of Broward County homeowners challenging the destruction of citrus trees under the CCEP, and held that the trial court did not abuse its discretion in adopting the replacement cost of the destroyed trees as the correct measure of damages. After that case proceeded to final judgment, in Bogorff, 35 So. 3d at 91, the Fourth District again affirmed as to the measure of damages and found that replacement cost was proper.
Likewise, the nature of the damages awarded in an inverse condemnation case is "dictated by the particular facts of the case." Pompano Beach, 829 So. 2d at 931; see, e.g., Dep't of Agric. & Consumer Servs. v. Polk, 568 So. 2d 35, 43 (Fla. 1990) (affirming an award of damages for the "prospective net revenue" the immature citrus trees would have produced if allowed to reach maturity); Dade Cnty. v. Gen. Waterworks Corp., 267 So. 2d 633 (Fla. 1972). Thus, the trial court did not abuse its discretion when it adopted the replacement cost as the measure of damages in determining whether to certify the class.
The Department next argues that even if the appropriate measure of damages is replacement cost, this methodology for compensating the homeowners lacks the commonality required for class treatment because the homeowners are seeking damages that are entirely subjective. We find the Department's argument without merit as the homeowners have specifically limited their claim for damages in the amended motion for class certification to the replacement cost of the destroyed trees, and the homeowners are not seeking subjective damages such as loss of shade, ornamentation, fruit, or privacy. As the trial court found in its order granting the amended motion for class certification, although the amount of compensation for the replacement cost of the destroyed trees may differ among homeowners, "the methodology for establishing compensation will result in a uniform result, thus avoiding the necessity of holding individual damage hearings." Therefore, the replacement cost measure of damages serves as an adequate methodology for determining any possible compensation to the homeowners. See Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 113 (Fla. 2011) (stating that predominance requirement was met where any variance in damage recovery between the class members was calculable by using a systematic formula); Morgan v. Coats, 33 So. 3d 59, 65 (Fla. 2d DCA 2010) ("[I]ndividualized damages inquiries do not preclude class certification."); Ouellette v. Wal-Mart Stores, Inc., 888 So. 2d 90, 91 (Fla. 1st DCA 2004) ("[T]he individualized nature of their damages claims should not bar certification of the class."); see also Broin v. Philip Morris Cos., 641 So. 2d 888, 891 (Fla. 3d DCA 1994) ("Entitlement to different amounts of damages is not fatal to a class action."). Compare Castin v. Fla. Dep't of Agric. & Consumer Servs., 901 So. 2d 1020, 1021 (Fla. 4th DCA 2005) (affirming denial of certification where damages sought included severance damages to real estate, the fruit provided by the trees, as well as the shade, aroma, blossoms, and "other values for which people treasure citrus in Florida" because it would require individual trials for each homeowner); Kia Motors Am. Corp. v. Butler, 985 So. 2d 1133 (Fla. 3d DCA 2008) (reversing class certification where individual inquiry would be necessary to determine liability and damages in the case of each class member); Execu-Tech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So. 2d 19, 22 (Fla. 4th DCA 1999) (affirming denial of class certification where record supported trial court's determination that there was "no reasonable methodology for generalized proof of class-wide impact and damages").
Because the trial court did not abuse its discretion, we affirm the order certifying the class.
Affirmed.
SUAREZ, J., concurs. ROTHENBERG, J. (dissenting).
INTRODUCTION
While I agree with the bulk of the majority's opinion, I respectfully disagree with its analysis in section II.B approving the damages methodology advanced by the homeowners. The majority correctly notes that the determination regarding the proper measure of damages is dictated by the facts and circumstances of each case, Dep't of Agric. & Consumer Servs. v. Bogorff, 35 So. 3d 84, 91 (Fla. 4th DCA 2010); the "replacement cost" methodology has been approved as a measure of damages in cases where trees are removed from real property, id.; Fla. Dep't of Agric. & Consumer Servs. v. City of Pompano Beach, 829 So. 2d 928, 931 (Fla. 4th DCA 2002); Fiske v. Moczik, 329 So. 2d 35, 37 (Fla. 2d DCA 1976); and these principles apply in inverse condemnation cases, Bogorff, 35 So. 3d at 91; City of Pompano Beach, 829 So. 2d at 931.
I do not take issue with these well supported propositions. I take issue with the damages formula crafted by the homeowners, which they contend can accurately and uniformly calculate the replacement cost of each of their 247,927 trees. As I will demonstrate below, this is simply not true. The formula is deficient as a matter of law. Accordingly, I would reverse class certification on the basis that the homeowners have failed to satisfy their burden of proffering an accurate and uniform methodology to calculate damages on a class-wide basis. See Castin v. Fla. Dep't of Agric. & Consumer Servs., 901 So. 2d 1020, 1021 (Fla. 4th DCA 2005); Execu-Tech Bus. Sys., Inc. v. Appleton Papers Inc., 743 So. 2d 19, 21-22 (Fla. 4th DCA 1999); see also Klay v. Humana, Inc., 382 F.3d 1241, 1259-60 (11th Cir. 2004), abrogated in part on other grounds by Bridge v. Phoenix Bond & Indem. Co., 553 U.S. 639 (2008).
THE CITRUS CANKER ERADICATION PROGRAM
In November 1995, citrus canker was discovered on residential properties in Broward, Dade, and Manatee counties. Patchen v. Fla. Dep't of Agric. & Consumer Servs., 906 So. 2d 1005, 1006 (Fla. 2005). "Citrus canker is a disease that is caused by citrus canker bacteria, which attack the fruits, leaves and stem of citrus plants." Haire v. Fla. Dep't of Agric. & Consumer Servs., 870 So. 2d 774, 778 (Fla. 2004). "Although the fruit of an infected tree remains edible, the disease causes defoliation, fruit drop and loss of yield, as well as blemishes on the fruit and a loss of quality." Id.
The Florida Department of Agriculture and Consumer Services (the "Department") was assigned the task of eradicating the citrus canker strain. Ultimately, the task would be challenging because citrus canker is "difficult to control," as it is "spread from tree to tree primarily by wind-driven rain or the contamination of equipment or plant material." Id. To remedy the problem, the Department established the Citrus Canker Eradication Program, pursuant to which the Department removed all citrus trees infected with or exposed to citrus canker. Initially, a tree was determined to be "exposed" to citrus canker if it was located within a 125-foot radius of an infected tree. However, the 125-foot radius proved to be "inadequate," as "it only captured about thirty to forty-one percent of infection that spread from a diseased tree." Id.
In March 1999, the Citrus Canker Technical Advisory Task Force, a body of regulatory individuals, scientists, and citrus industry representatives, unanimously recommended that the Department adopt a policy to destroy trees within a 1900-foot radius of a diseased tree. Id. at 779. On January 1, 2000, the Commissioner of Agriculture adopted the recommendation, and the 1900-foot buffer zone policy went into effect. Patchen, 906 So. 2d at 1006; see also § 581.184(2)(a), Fla. Stat. (2002) ("The department shall remove and destroy all infected citrus trees and all citrus trees exposed to infection."); § 581.184(1)(b), Fla. Stat. (2002) ("'Exposed to infection' means citrus trees located within 1,900 feet of an infected tree."). Pursuant to this policy, the Department destroyed hundreds of thousands of citrus trees across the state.
THE CLASS ACTION
In late 2000, Miami-Dade County homeowners filed the instant lawsuit, alleging that the Department's destruction of their healthy, uninfected residential citrus trees constituted a taking, requiring full compensation under Article X, section 6(a) of the Florida Constitution. In June 2010, the trial court granted the homeowners' motion for class certification, defining the class as:
The ten year delay was the result of procedural issues that are not relevant to my analysis.
All owners of citrus trees situated within Miami-Dade County, incorporated or otherwise, not used for commercial purposes, which were not determined by the Department to be infected with citrus canker and were destroyed under the CCEP on or after January 1, 2000 . . . .The class is comprised of 83,630 homeowners, whose 247,927 healthy citrus trees were destroyed pursuant to the Citrus Canker Eradication Program.
THE TRIAL COURT'S CONCLUSION THAT PREDOMINANCE WAS
SATISFIED
The trial court premised its determination that the homeowners satisfied the "predominance" requirement set forth in Florida Rule of Civil Procedure 1.220(b)(3) on its conclusion that "the damage methodology proposed by Plaintiffs represents a simple, straightforward and effective method for calculating the replacement cost of the destroyed trees on a classwide basis." The trial court explained its reasoning as follows:
Mr. Hoyer explained that he will determine the replacement cost of the homeowners' trees on the date they were destroyed by using records created by the Department which memorialize the variety, height, condition and location of the Class members' trees shortly before their destruction, and various sources of pricing information commonly utilized by professional tree appraisers. Mr.
Hoyer testified that these are the same factors he uses in appraising other residential trees: tree size, species, condition and location.
. . . .
Contrary to the Department's arguments, this Court finds that the determination of compensation will not involve individualized determinations, requiring thousands of mini-trials. In any event, difference in damages will not ordinarily preclude class certification. While the amount of compensation applicable to each Class member - the replacement cost for each uninfected citrus tree destroyed - is unknown at this stage of the proceedings, the Court concludes, based on the testimony of Mr. Hoyer, that the amount of compensation will be easily calculable through the use of a simple, straightforward methodology making use of the Department's own records as well as readily available information concerning the replacement cost of citrus trees.
(citation omitted). These findings are belied by the record. In reality, the testimony of Eric Hoyer plainly demonstrates that there is no practicable, uniform way of accurately calculating the replacement value of each of the 247,972 trees in this case.
Contrary to the trial court's finding, the Department's records do not contain information regarding the location of the trees.
Contrary to the trial court's finding, the Department's records do not contain information regarding the location of the trees.
MR. HOYER'S PROPOSED FORMULA
In devising his proposed formula, Mr. Hoyer relied on the Guide for Plant Appraisal ("the Guide"), which he admitted is the only authoritative text concerning the appraisal of trees. Mr. Hoyer acknowledged that, under the Guide, the "ideal" method for calculating the replacement cost of citrus trees is "the trunk formula method," which prices the replacement value of a "tree based on its cross sectional area, which is related to the trunk diameter." Mr. Hoyer, however, could not proceed under the "trunk formula method" because the Department did not collect information regarding the trunk diameters in this case.
Mr. Hoyer was thus forced to settle on one of the alternative replacement cost formulas set forth in the Guide, which requires an individualized analysis of four factors: height, species, condition, and location. According to Mr. Hoyer, however, the "species" factor is not relevant in this case, since his review of the citrus market apparently revealed that all citrus trees of comparable heights share an equal value, regardless of species.
Thus, the starting point in Mr. Hoyer's proposed formula is height. After studying the market for citrus trees, Mr. Hoyer proposed to establish an initial value for each tree based on height, on a foot-by-foot basis. The Guide would then require that the initial value be depreciated by each tree's condition and location attributes, purportedly yielding its replacement value. As Mr. Hoyer stated:
Mr. Hoyer testified that he was forced to "extrapolate" an initial value for trees over eight feet tall because there were no citrus trees over eight feet tall available in the citrus market. In my view, this calls into question whether replacement value is the correct measure of compensatory damages for citrus trees above eight feet tall.
In Polk, the Florida Supreme Court determined that "when there is no market [for a growing crop] at the time of the taking due to the crops' partial state of development, it is necessary to consider other evidence bearing on value." Dep't of Agric. & Consumer Servs. v. Polk, 568 So. 2d 35, 42 (Fla. 1990). In that case, for instance, the Court concluded that because there was no market for immature citrus trees, it was proper for the jury to consider "the prospective net revenue which could have been derived from the crop at maturity [a]s a proper measure of valuation." Id.
The principles set forth in Polk are applicable here. Because there is no market for citrus trees over eight feet tall, such trees cannot be replaced. It follows that the damages incurred by homeowners who lost trees over eight feet tall should not be measured by replacement cost. As in Polk, "it is necessary to consider other evidence bearing on value." Id.
[The height] would establish a base, what we call a basic value or replacement value for those plants, for those citrus trees. And then the value would be depreciated by the condition and the location factors. That is a subjective value determined by the appraiser.
The validity of this formula as a measure of replacement cost is of no moment because Mr. Hoyer admittedly deviated from it. While the plaintiffs have data reflecting the height and general condition of each tree, they do not possess, and cannot practicably obtain, sufficient information to accurately apply a location discount to each tree in this case.
I have serious reservations about factoring a tree's location into a replacement cost analysis. The goal of the replacement cost methodology is to provide the landowners sufficient compensation to replace their trees with similar ones. It follows that the focus should be on each tree's physical characteristics, which can be compared to those of trees available in the marketplace and priced accordingly. There is no association between a tree's location and the amount of money it would cost to replace it. The record reflects that the trial court initially shared my reservations, as evidenced by the following exchange:
THE COURT: But replacing a ten-foot average tree is going to cost you X whether it's in the side yard, front yard or backyard. If it's the replacement cost, it doesn't appear to me that location would be an appropriate consideration.
THE WITNESS: I understand. And again, I debated that question going through this process, and because the Guide for Plant Appraisal considers . . . the size, the species, the condition and location of the tree, I wanted to use a defensible methodology and follow the appraisal methodology through as outlined in the Guide, so I went ahead and used the location value.
. . . .
THE COURT: Before we go there, if we're talking about diminution to the real estate, I can understand location being a significant factor. If we're talking about replacement cost, you explain to me why I would consider that at all. . . . It just doesn't appear to the Court that it's an appropriate consideration . . . . It seems to me, replacement value is X. It's going to cost me X to replace this 10-foot tree. . . . How can you replace it for less . . . ?
To correctly apply a location discount, the Guide requires individualized consideration of three location attributes: site; contribution; and placement. On direct examination, Mr. Hoyer explained:
Mr. Hoyer illustrated the importance of a tree's individual location attributes with the following example:
[L]et's say you have this beautiful large Poinciana tree in the front of your house and it's the focal point of your house, it blooms every summer, and everybody oohs and aahs as they drive by, it's the central point of your landscaping. If I were to appraise that tree, I would give it a much higher location value than if that tree were stuck in the corner of your yard and didn't . . . have the aesthetic . . . [or] visual appeal, and didn't contribute as much to the overall landscaping of your property.
So if that tree were stuck in the side yard, . . . [or] if you had a hundred trees in your yard and you lost that one tree, I wouldn't give it the location value that I would give it if that was the only tree in your yard, it was the focal point of your landscaping and you lost it. It would have . . . more of a significant impact.
Well, there are three sub-parameters under location. There's what's called the site, and there's the contribution and the placement. The site is the site itself of the home, you know, the type of neighborhood that it's in, how expensive is the home, this type of thing.
The contribution is what are individual trees, what is that tree contributing to the, to that property. Is it providing shade. Is it a buffer; that type of thing. Is it under a power line, and so on and so forth.
And the placement of the tree. Is the tree placed in such a manner that it is contributing to the property. And you take in a number of factors, there's a lot of factors that play into that.
Unfortunately, the plaintiffs do not possess any information regarding the site, contribution, or placement of any of the trees. More importantly, Mr. Hoyer admitted that obtaining such particularized information and accurately applying the location discount to each tree would not be "practical" in a case featuring 247,972 trees spread across Miami-Dade County.
A. I didn't have the advantage of looking at each and every property and because of the number of properties involved, it wouldn't be practical to go through that exercise. . . . [W]e didn't have much information on location. And it wouldn't be practical to do that for a quarter of a million trees.
. . . .
Q. Instead of using a 75 percent code across the board for every single tree in Dade County, instead of doing that, if you were to really make an actual assessment of the percentage location discount for a specific particular tree, but do that for every tree, that would not be a practical thing you could do?
A. Not very practical. That's correct. Which is one of the reasons we came up with a, I came up with a generic location factor in dealing with the class here.
Mr. Hoyer's proposed solution was to alter the formula by crafting an "across-the-board" location discount and applying it to all of the 247,972 trees, without regard to their actual location attributes. Specifically, Mr. Hoyer "came up with" a location discount multiple of .75 to be applied uniformly to each tree—in other words, a diminishment of twenty-five percent of each tree's value after it is discounted for its condition.
So I came up with a range of location percentages; again, it's from zero to a hundred percent, I came up with a range of location percentages that I thought would be reasonable in a class situation.
Generally speaking, there's one to three trees on a property. In general, they're in the side yard or back yard, you know. In general, the trees are 10 to 20 feet tall and so forth. So with that information, taking an average situation for the class, I came up with a range of about 67 to 85 percent for location value and settled on a median of 75 percent.
When asked to elaborate how he "came up with" the multiple of .75, Mr. Hoyer explained:
I just - - again, an appraisal is a subjective art, and I felt that was a reasonable discount. . . . And because most of these trees were in the side yard or in the backyard, they weren't necessarily a focal point of someone's landscaping, but the trees did have value to the homeowners, as we heard earlier, I felt that was a reasonable discount.
On cross examination, counsel for the Department emphasized the obvious problems with applying a location discount in an across-the-board fashion, rather than on an individual basis.
Q. So for location . . . we would be looking at the particular location on someone's property and coding that from zero to 100 percent, right?
A. No. I used 75 percent location for all of the trees. There was no variation like there was for condition.
Q. So even though some trees may have been in a great location and some trees may have been in a terrible location, everybody gets the same?
A. Well, A, we didn't have a location, we didn't have much information on location. And it wouldn't be practical to do that for a quarter of a million trees.
Q. Now the first thing the guide tells us about the location factor is that you have to rate the overall quality of the general area, and of the buildings, landscape structures and plantings of the site. Right?
A. Yes, I said that before.
Q. That's going to vary from neighborhood to neighborhood in Dade County, isn't it?
A. Oh, yes. Absolutely.
Q. Number two, rate the contribution of the plant in providing each of the functional and aesthetic benefits identified.
A. Yes, I said that.
Q. So that is very specific to an individual property, isn't it?
A. Yes.
Q. Number three, rate how effectively the placement of the plant provides its functional and aesthetic benefits. Again, it's very specific to the property, isn't it?
A. Yes, I mentioned site contribution and placement earlier.
Q. So of the three factors here, number one is specific to the neighborhood, and number two and three are specific to the particular lot?
A. Yes.
Q. And you're just going to use one location factor exactly the same for every single lot in Miami-Dade County we're dealing with?
A. Well, I had to make modifications, based on a quarter million trees. There has to be some practical way to do this on a class basis.
Mr. Hoyer also admitted that applying an across-the-board location discount would under-compensate some class members and over-compensate others.Nevertheless, Mr. Hoyer found solace in the fact that "it would probably not have an impact in the total amount of compensation" the class, as a whole, would receive, or the Department would have to pay, "because it would average out."
In reality, every class member would be undercompensated by the application of the location discount because, as I explained above, a tree's location has no bearing on the amount of money it would cost to replace it.
LEGAL ANALYSIS
A trial court's order certifying a class is reviewed for an abuse of discretion. Sosa v. Safeway Premium Fin. Co., 73 So. 3d 91, 102-03 (Fla. 2011). However, in this case, the trial court premised its certification of the class on its acceptance of the plaintiffs' damages methodology, the validity of which we review de novo. R & B Holding Co. v. Christopher Adver. Grp., Inc., 994 So. 2d 329, 331 (Fla. 3d DCA 2008) ("Determining whether a particular methodology is a proper method for computing damages is a question of law . . . . The appropriate measure of damages, as compared with the amount of damages awarded, involves a legal question reviewable on appeal.").
The takings provision of the Florida Constitution dictates that "[n]o private property shall be taken except for a public purpose and with full compensation therefor paid to each owner or secured by deposit in the registry of the court and available to the owner." Art. X, § 6(a), Fla. Const. "The constitutional requirement of full compensation means that the landowner must be completely paid for that which is taken, and compensated for the whole loss occasioned by the taking." Polk, 568 So. 2d at 41 (quoting Dep't of Transp. v. Nalven, 455 So. 2d 301, 307 (Fla.1984)). Accordingly, the damages methodology employed in any inverse condemnation suit should be consistent with the doctrine of compensatory damages, the purpose of which is "to restore the injured party to the position it would have been [in] had the wrong not been committed." Engle v. Liggett Grp, Inc., 945 So. 2d 1246, 1279-80 (Fla. 2006) (quoting Laney v. Am. Equity Inv. Life Ins. Co., 243 F. Supp. 2d 1347, 1354 (M.D. Fla. 2003)); see also R.J. Reynolds Tobacco Co. v. Townsend, 90 So. 3d 307, 310 (Fla. 1st DCA 2012) (quoting Mercury Motors Exp., Inc. v. Smith, 393 So. 2d 545, 547 (Fla. 1981) ("The purpose of compensatory damages is 'to make the injured party whole to the extent that it is possible to measure his injury in terms of money.'")).
As the law has long recognized, "all land is considered unique," both in terms of its physical characteristics and intended uses. Bermont Lakes, LLC v. Rooney, 980 So. 2d 580, 586 (Fla. 2d DCA 2008). Thus, "[i]n takings cases, 'the proper valuation method or methods for any given case are inextricably bound up with the particular circumstances of the case.'" Bogorff, 35 So. 3d at 91 (quoting Fla. Dep't of Agric. & Consumer Servs. v. Mid-Fla. Growers, Inc., 570 So. 2d 892, 895 (Fla. 1990)); City of Pompano Beach, 829 So. 2d at 931; see also Dade Cnty. v. Gen. Waterworks Corp., 267 So. 2d 633, 639 (Fla. 1972). Florida appellate courts have approved of a variety of damages methodologies in cases where trees are removed from real property, including those quantifying compensatory damages based on: the diminution in the value of the real estate, Nat'l Rating Bureau, Inc. v. Fla. Power Corp., 94 So. 2d 809, 811 (Fla. 1956) (en banc); Watson v. Jones, 36 So. 2d 788, 788-89 (Fla. 1948); Elowsky v. Gulf Power Co., 172 So. 2d 643 (Fla. 1st DCA 1965); Clark v. J.W. Conner & Sons, Inc., 441 So. 2d 674, 676 (Fla. 2d DCA 1983); the cost of replacing the trees, Bogorff, 35 So. 3d at 91; City of Pompano Beach, 829 So. 2d at 931; the loss of "creature comforts" provided by the trees, including shade and fruit, Watson, 36 So. 2d at 788-89, Elowsky, 172 So. 2d at 645; Clark, 441 So. 2d at 676-77; and even the loss of "prospective net revenues" the citrus trees would have produced if allowed to reach maturity, Polk, 568 So. 2d at 43.
In rule 1.220(b)(3) class actions, the damages methodology advanced by the plaintiffs is relevant to a court's analysis of "predominance." Among other requirements, plaintiffs seeking certification under rule 1.220(b)(3) must demonstrate that "the questions of law or fact common to the claim or defense of the representative party and the claim or defense of each member of the class predominate over any question of law or fact affecting only individual members of the class." Fla. R. Civ. P. 1.220(b)(3). "The predominance requirement is similar to commonality because 'both require that common questions exist,' but the 'predominance requirement is more stringent since common questions must pervade,' rather than merely exist." Miami Auto. Retail, Inc. v. Baldwin, 37 Fla. L. Weekly D1527, D1529 (Fla. 3d DCA June 27, 2012) (quoting Wyeth, Inc. v. Gottlieb, 930 So. 2d 635, 639 (Fla. 3d DCA 2006)). The law is clear that in cases where common issues "break down into individual factual and legal issues," common issues do not predominate. Morgan v. Coats, 33 So. 3d 59, 66 (Fla. 2d DCA 2010).
As the majority notes, individualized questions relating to damages, as opposed to liability, generally do not preclude a finding that common issues predominate. Ouellette v. Wal-Mart Stores, Inc., 888 So. 2d 90, 91 (Fla. 1st DCA 2004). However, Florida courts have recognized two limiting principles in this context. First, plaintiffs bear the burden of proffering an accurate damages methodology that can be applied uniformly to each member of the class. See Castin, 901 So. 2d at 1021 (holding that "the trial court did not abuse its discretion in denying class certification, because the evidence showed no reasonable methodology for generalized proof suitable for a class action"); Appleton Papers, 743 So. 2d at 21-22 (affirming the trial court's determination that the appellants failed to show predominance because "the issue of damages and impact in the case simply 'does not lend itself to [a mechanical calculation] but requires separate mini-trials, of an overwhelming large number of individual claims' and that 'the staggering problems of logistics thus created make the damage aspect of the case thus predominate. . . .'"); see also Klay, 382 F.3d at 1259 (quoting In re Terazosin Hydrochloride Antitrust Litig., 220 F.R.D. 672, 698 (S.D. Fla. 2004) (noting that plaintiffs must "come forward with plausible statistical or economic methodologies to demonstrate impact on a class-wide basis," and that "[i]n assessing whether to certify a class," the court must consider "whether or not the proposed methods [for computing damages] are so insubstantial as to amount to no method at all")); see also Sosa, 73 So. 3d at 113 (determining that predominance was strengthened because "any variance in damage recovery between the class members is calculable by using a systematic formula"). Second, Florida Courts have held that "[c]lass certification becomes inappropriate . . . when the need to prove damages on an individualized basis will play such a predominant role in the litigation as to significantly outweigh any benefits to be gained by a class action lawsuit." Equity Residential Props. Trust v. Yates, 910 So. 2d 401, 403 (Fla. 4th DCA 2005) (emphasis added); see also Klay, 382 F.3d at 1260 (noting that there are "extreme cases in which computation of each individual's damages will be so complex, fact-specific, and difficult that the burden on the court system would be simply intolerable").
In this case, the trial court determined that predominance was satisfied based on its conclusion that the plaintiffs' proposed damages methodology "represents a simple, straightforward and effective method" for calculating the replacement cost of "each" tree on a classwide basis. While the methodology may represent a simple and straightforward method, it certainly does not represent an "effective" method. The methodology's across-the-board application of a location discount, by definition, ignores crucial individual characteristics—the site, contribution, and placement—bearing on the value of each tree, and thus does not provide an accurate assessment of the replacement value of each tree. Consequently, the plaintiffs have failed to proffer an accurate damages methodology that can be applied uniformly to each member of the class.
Without a methodology capable of accurately and uniformly calculating the replacement cost of each tree, the "need to prove damages on an individualized basis will play such a predominant role in the litigation as to significantly outweigh any benefits to be gained by a class action lawsuit." Yates, 910 So. 2d at 403. As Mr. Hoyer stated, obtaining information regarding the site, contribution, and placement of each tree, and correctly factoring these characteristics into each replacement cost assessment, would not be practical in this case.
I didn't have the advantage of looking at each and every property and because of the number of properties involved, it wouldn't be practical to go through that exercise. . . . [W]e didn't have much information on location. And it wouldn't be practical to do that for a quarter of a million trees.Doing so would require a tree appraiser or appraisers to travel to at least 83,630 homes, which are spread across Miami-Dade County, and make individualized
assessments regarding the location attributes of 247,927 trees that are no longer there, all while ensuring uniformity in such evaluations. The plaintiffs would then bear the burden of proving the accuracy of each of these assessments.
As Mr. Hoyer candidly admitted, the very reason he "came up with" the methodology was to manufacture predominance so as to avoid the burdensome, individualized assessments necessary to accurately calculate and prove the replacement cost of each tree.
Q. Instead of using a 75 percent code across the board for every single tree in Dade County, instead of doing that, if you were to really make an actual assessment of the percentage location discount for a specific particular tree, but do that for every tree, that would not be a practical thing you could do?Accuracy, however, cannot be so blatantly sacrificed in the name of judicial economy. The litigation process demands more precision than that offered by the plaintiffs in this case.
A. Not very practical. That's correct. Which is one of the reasons we came up with a, I came up with a generic location factor in dealing with the class here.
. . . .
Q. And you're just going to use one location factor exactly the same for every single lot in Miami-Dade County we're dealing with?
A. Well, I had to make modifications, based on a quarter million trees. There has to be some practical way to do this on a class basis.
Finally, Mr. Hoyer acknowledged that his across-the-board treatment of trees in this case would under-compensate many of the class members.Nevertheless, he attempted to justify the methodology by opining that the overall compensation provided to the class as a whole would likely average out, and that, consequently, the Department would not be overcharged in damages. Mr. Hoyer's justification is legally without merit. As stated by the Florida Supreme Court, in an action seeking damages for the wrongful cutting of trees, "the rule of damages adopted should be such as to more carefully guard against failure of compensation to the injured party than against possible overcharge upon the wrongdoer." Watson, 36 So. 2d at 789 (citing Gilman v. Brown, 91 N.W. 227, 229 (Wis. 1902)).
As I explained above, the methodology would actually under-compensate every class member.
--------
In sum, the plaintiffs have failed to proffer a damages methodology capable of accurately and uniformly calculating the replacement cost of each of the 247,927 trees in this case. A careful review of the record demonstrates that "the proposed methods [for computing damages] are so insubstantial as to amount to no method at all." Klay, 382 F.3d at 1259. Without a proper methodology, class treatment in this case is improper because the "need to prove damages on an individualized basis will play such a predominant role in the litigation as to significantly outweigh any benefits to be gained by a class action lawsuit." Yates, 910 So. 2d at 403.
Accordingly, I would reverse the trial court's order certifying the class.