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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT,
IN AND FOR SARASOTA COUNTY, FLORIDA
MAJOR TRIAL DIVISION T
McCANN HOLDINGS, LTD.,
Plaintiff,
V. | , CASE NO. 2011-CA-003897-NC
SDC COMMUNITIES, INC.,
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC, HENRY
RODRIGUEZ, AND RANDALL BENDERSON,
Defendants,
/
ORDER ON DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE
RELATED TO FUTURE LAND USE CHANGES AS SPECULATIVE; ORDER ON
DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE OF
CONSEQUENTIAL DAMAGES RELATED TO THE SARASOTA BOARD OF
COUNTY COMMISSIONERS’ CONSIDERATION OF COMPREHENSIVE PLAN
AMENDMENT, 2010-02-E
This matter came before the Court on Defendants SDC Communities, Inc., and Henry
Rodriguez’s Motion in Limine to Exclude Evidence Related to Future Land Use Changes as
Speculative, filed on January 26, 2015; and Defendants Vott-A, LLC, Vott-B, LLC, Vott-C,
LLC, Vott-D, LLC, and Randall Benderson’s Motion in Limine to Exclude Evidence of
Consequential Damages Related to the Sarasota Board of County Commissioners’ Consideration
of Comprehensive Plan Amendment, 2010-02-E, filed on February 13, 2015. On February 23,
2015, the Plaintiff filed McCann’s Response to SDC’s and Vott’s Motions in Limine as to
Damages, Future Land Use Changes and Expert Testimony. On February 25, 2015, the Court
held a hearing on the Defendants’ Motions, and the Plaintiff's Response. The Court has
carefully reviewed the Defendants’ Motions, the Plaintiff's Response, the Court file, the
applicable law, considered oral argument from counsel, and is otherwise duly advised in the
Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLpremises.
At this point, the Court understands the Plaintiff's measure of damages in this case to be
the value of the land owned by the Plaintiff had the Sarasota Board of County Commissioners
adopted Comprehensive Plan Amendment, 2010-02-E, compared to the value of the land owned
by the Plaintiff without the adoption of Comprehensive Plan Amendment, 2010-02-E. The
Court’s understanding at this time is that the Plaintiff is not presently seeking to measure
damages in this case based on the highest and most valuable use of the land, had the
Comprehensive Plan Amendment passed.
Instead, the Court’s present understanding is that the Plaintiff is merely seeking to
introduce evidence with respect to what the Plaintiff could have reasonably expected to receive
from the sale of the land if the Sarasota Board of County Commissioners had adopted
Comprehensive Plan Amendment, 2010-02-E, compared to what the Plaintiff could reasonably
expect to receive from the sale of the land without the adoption of that amendment. Therefore,
based on the Court’s present understanding of the measure of damages in this case, it is hereby,
ORDERED AND ADJUDGED that the Defendants SDC Communities, Inc., and Henry
Rodriguez’s Motion in Limine to Exclude Evidence Related to Future Land Use Changes as
Speculative, and Defendants Vott-A, LLC, Vott-B, LLC, Vott-C, LLC, Vott-D, LLC, and
Randall Benderson’s Motion in Limine to Exclude Evidence of Consequential Damages Related
to the Sarasota Board of County Commissioners’ Consideration of Comprehensive Plan
Amendment, 2010-02-E, are DENIED, as set forth below:
1. The Defendants’ Motions are DENIED to the extent that they seek to exclude testimony
from witnesses Chad G. Durrance and David W. DePew on the basis that they do not
qualify to present expert testimony on the Plaintiff's damages pursuant to Fla. Stat. §
90.702.
Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2. The Defendants’ Motions are DENIED to the extent that they seek to exclude testimony
from witnesses Chad G. Durrance and David W. DePew, regarding the Plaintiff's
measure of damages in this case, on the basis that such testimony would be too
speculative. The Court finds that the proposed testimony from Chad G. Durrance and
David W. DePew on the Plaintiff's measure of damages is not too speculative to be
admissible.
3. The Defendants’ Motions are DENIED with respect to the assertion that the Plaintiff's
damages are not ripe for adjudication. The Court finds that the Plaintiff's damages are
ripe for adjudication at this time.
4. The Defendant’s Motions are DENIED to the extent that they seek to exclude evidence
regarding the Plaintiff's damages based on the contention that the Plaintiff did not plead
special damages. The Court agrees that special damages have not been plead by the
Plaintiff in this case. The Court finds, however, that it was not necessary for the Plaintiff
to plead special damages in this case based on the underlying facts, and the Court’s
present understanding of how the Plaintiff seeks to measure its damages at trial.
5. To the extent that the damages sought by the Plaintiff in this case may be construed as
special damages, the Plaintiffs oral motion to amend the Third Amended Complaint to
add a claim for special damages, made in Court on February 26, 2015, is GRANTED.
6. Should it become clear to the Court during trial that the Court’s present understanding of
the measure of damages in this case is inaccurate, in light of the evidence and testimony
presented by the parties, the Court will revisit the rulings contained in this Order at that
time.
DONE AND ORDERED in Chambers in Sarasota, Sarasota County, Florida, on this
Uo day of February 2015.
THE HONORAGLE PETER A ENSKY
CIRCUIT COURT JUDG
Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLCERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing Order has been furnished on this
ZL day of February 2015, to:
Alan W. Roddy, Esq.
Deputy County Attorney
Office of the County Attorney
1660 Ringling Blvd., 2nd Floor
Sarasota, FL 34236
Steven D. Hutton, Esq.
Przemyslaw L. Dominko, Esq.
Steven D. Hutton PL
240 Pineapple Avenue, Ste. 801
Sarasota, FL 34236
Morgan R. Bentley, Esq.
Bentley & Bruning PA
783 S. Orange Avenue
Sarasota, FL 34236
Edward Vogler, II, Esq.
Vogler Ashton PLLC
2411 A Manatee Avenue West
Bradenton, FL 34205
Steven J. Chase, Esq.
Hunter G. Nerton, Esq.
Shumaker Loop & Kendrick LLP
240 S. Pineapple Avenue
Sarasota, FL 34230-6948
By: | DUsG4
Judicial Assistant
Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
Preview
oo IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT, IN AND FOR SARASOTA COUNTY, FLORIDA MAJOR TRIAL DIVISION T McCANN HOLDINGS, LTD., Plaintiff, V. | , CASE NO. 2011-CA-003897-NC SDC COMMUNITIES, INC., VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, HENRY RODRIGUEZ, AND RANDALL BENDERSON, Defendants, / ORDER ON DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE RELATED TO FUTURE LAND USE CHANGES AS SPECULATIVE; ORDER ON DEFENDANTS’ MOTION IN LIMINE TO EXCLUDE EVIDENCE OF CONSEQUENTIAL DAMAGES RELATED TO THE SARASOTA BOARD OF COUNTY COMMISSIONERS’ CONSIDERATION OF COMPREHENSIVE PLAN AMENDMENT, 2010-02-E This matter came before the Court on Defendants SDC Communities, Inc., and Henry Rodriguez’s Motion in Limine to Exclude Evidence Related to Future Land Use Changes as Speculative, filed on January 26, 2015; and Defendants Vott-A, LLC, Vott-B, LLC, Vott-C, LLC, Vott-D, LLC, and Randall Benderson’s Motion in Limine to Exclude Evidence of Consequential Damages Related to the Sarasota Board of County Commissioners’ Consideration of Comprehensive Plan Amendment, 2010-02-E, filed on February 13, 2015. On February 23, 2015, the Plaintiff filed McCann’s Response to SDC’s and Vott’s Motions in Limine as to Damages, Future Land Use Changes and Expert Testimony. On February 25, 2015, the Court held a hearing on the Defendants’ Motions, and the Plaintiff's Response. The Court has carefully reviewed the Defendants’ Motions, the Plaintiff's Response, the Court file, the applicable law, considered oral argument from counsel, and is otherwise duly advised in the Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLpremises. At this point, the Court understands the Plaintiff's measure of damages in this case to be the value of the land owned by the Plaintiff had the Sarasota Board of County Commissioners adopted Comprehensive Plan Amendment, 2010-02-E, compared to the value of the land owned by the Plaintiff without the adoption of Comprehensive Plan Amendment, 2010-02-E. The Court’s understanding at this time is that the Plaintiff is not presently seeking to measure damages in this case based on the highest and most valuable use of the land, had the Comprehensive Plan Amendment passed. Instead, the Court’s present understanding is that the Plaintiff is merely seeking to introduce evidence with respect to what the Plaintiff could have reasonably expected to receive from the sale of the land if the Sarasota Board of County Commissioners had adopted Comprehensive Plan Amendment, 2010-02-E, compared to what the Plaintiff could reasonably expect to receive from the sale of the land without the adoption of that amendment. Therefore, based on the Court’s present understanding of the measure of damages in this case, it is hereby, ORDERED AND ADJUDGED that the Defendants SDC Communities, Inc., and Henry Rodriguez’s Motion in Limine to Exclude Evidence Related to Future Land Use Changes as Speculative, and Defendants Vott-A, LLC, Vott-B, LLC, Vott-C, LLC, Vott-D, LLC, and Randall Benderson’s Motion in Limine to Exclude Evidence of Consequential Damages Related to the Sarasota Board of County Commissioners’ Consideration of Comprehensive Plan Amendment, 2010-02-E, are DENIED, as set forth below: 1. The Defendants’ Motions are DENIED to the extent that they seek to exclude testimony from witnesses Chad G. Durrance and David W. DePew on the basis that they do not qualify to present expert testimony on the Plaintiff's damages pursuant to Fla. Stat. § 90.702. Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL2. The Defendants’ Motions are DENIED to the extent that they seek to exclude testimony from witnesses Chad G. Durrance and David W. DePew, regarding the Plaintiff's measure of damages in this case, on the basis that such testimony would be too speculative. The Court finds that the proposed testimony from Chad G. Durrance and David W. DePew on the Plaintiff's measure of damages is not too speculative to be admissible. 3. The Defendants’ Motions are DENIED with respect to the assertion that the Plaintiff's damages are not ripe for adjudication. The Court finds that the Plaintiff's damages are ripe for adjudication at this time. 4. The Defendant’s Motions are DENIED to the extent that they seek to exclude evidence regarding the Plaintiff's damages based on the contention that the Plaintiff did not plead special damages. The Court agrees that special damages have not been plead by the Plaintiff in this case. The Court finds, however, that it was not necessary for the Plaintiff to plead special damages in this case based on the underlying facts, and the Court’s present understanding of how the Plaintiff seeks to measure its damages at trial. 5. To the extent that the damages sought by the Plaintiff in this case may be construed as special damages, the Plaintiffs oral motion to amend the Third Amended Complaint to add a claim for special damages, made in Court on February 26, 2015, is GRANTED. 6. Should it become clear to the Court during trial that the Court’s present understanding of the measure of damages in this case is inaccurate, in light of the evidence and testimony presented by the parties, the Court will revisit the rulings contained in this Order at that time. DONE AND ORDERED in Chambers in Sarasota, Sarasota County, Florida, on this Uo day of February 2015. THE HONORAGLE PETER A ENSKY CIRCUIT COURT JUDG Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLCERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Order has been furnished on this ZL day of February 2015, to: Alan W. Roddy, Esq. Deputy County Attorney Office of the County Attorney 1660 Ringling Blvd., 2nd Floor Sarasota, FL 34236 Steven D. Hutton, Esq. Przemyslaw L. Dominko, Esq. Steven D. Hutton PL 240 Pineapple Avenue, Ste. 801 Sarasota, FL 34236 Morgan R. Bentley, Esq. Bentley & Bruning PA 783 S. Orange Avenue Sarasota, FL 34236 Edward Vogler, II, Esq. Vogler Ashton PLLC 2411 A Manatee Avenue West Bradenton, FL 34205 Steven J. Chase, Esq. Hunter G. Nerton, Esq. Shumaker Loop & Kendrick LLP 240 S. Pineapple Avenue Sarasota, FL 34230-6948 By: | DUsG4 Judicial Assistant Filed 03/02/2015 10:11 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL