Ocean Concrete Inc.’s attorney criticized Indian River County’s request for a do-over after losing its appeal of a $3.3 million court award as “an effort to delay the finality” of the 13-year-old lawsuit.
Attorney Stephen Burch urged the 4th District Court of Appeals to reject Indian River County’s motion for a rehearing by the three-judge panel that ruled for Ocean Concrete on Nov. 25, or by the entire 12-judge court.
Burch also asked the court to reject the county’s motion to certify the key question in the appeal as an issue of great public importance for review by the Florida Supreme Court.
“While the county may be the first in the Bert Harris Act’s quarter of a century of enactment to try to overturn a jury’s award based on a trial judge’s evidentiary rulings, that does not make the case one of ‘exceptional importance,'” Burch wrote.
“This is not the type of issue that is routinely being encountered by the court, or the public, nor is it likely to reappear again anytime soon,” Burch wrote in his Dec. 17 response to the county’s rehearing motion.
The 4th District Court of Appeals rejected Indian River County’s appeal claiming a circuit judge erred by allowing Ocean Concrete owner George Maib to testify about the value of his proposed concrete batch plant near Sebastian, while excluding testimony by the county’s economist and property appraiser during the September 2019 trial.
The county filed its rehearing motion on Dec. 10, arguing the case is important statewide because “there is no other reported decision on the calculation of damages” under the Bert J. Harris Private Property Protection Act of 1995.
But Burch’s response said the county’s motion “appears to be nothing more than the county expressing its displeasure with this court’s opinion in an effort to delay the finality of this lawsuit.”
“The county’s entire motion is improper,” Burch wrote. “It offers over 20 pages of arguments when this court has clearly stated no arguments should be made, it raises issues for the first time in the motion and it fails to delineate what relief it is requesting with what argument.”
“Worse, the improper arguments are based on strained and incorrect statements of this court’s opinions and the express language of the Bert Harris Act,” Burch wrote.
Ocean Concrete filed suit against the county in November 2007 after county commissioners removed concrete batch plants from the list of permitted uses in light industrial zones. At that time, county planners were reviewing Maib’s site plan for just such a plant on an 8.5-acre site in a light industrial zone on Old Dixie Highway near Sebastian.
The judge and jury in the first trial in November 2015 ruled against Ocean Concrete and Maib, but he won in the appellate and supreme courts.
Ocean Concrete and Maib were awarded $3.3 million by the jury and judge in the second trail, which concluded in September 2019.
The court rejected the county’s appeal of that judgement on Nov. 25. The county’s latest action, the Dec. 10 motion for rehearing, is an attempt to overturn the appeals court decision.
The motion also asks the 4th District Court of Appeals remand the case to the trial court with directions to enter judgement in the county’s favor or allow for a new trial on damages with testimony by the county’s expert witnesses.
But County Attorney Dylan Reingold declined to say whether the county intends to appeal to the Florida Supreme Court if its motion for rehearing is denied by the 4th DCA.
“I cannot say whether the court would send it to the Supreme Court as a certified question,” Reingold said in an interview on Dec. 15 after the county filed its rehearing motion. “We hope the court will request it.”
“This is, as we noted, to our knowledge, the first case on damages under the Bert J. Harris Act in its 25-year history,” Reingold said. “We think the ruling will have a significant impact on local governments, both municipalities and counties, and the state.”
“We don’t file motions for rehearing, or rehearing en banc lightly,” Reingold said. “We think this is an important issue and want to be sure the courts get it right.”
