DIAMOND REGAL DEVELOPMENT, INC., v. MATINNAZ CONSTRUCTION, INC.
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DIAMOND REGAL
DEVELOPMENT, INC.,
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D07-4786/1D07-5580
v.
MATINNAZ CONSTRUCTION,
INC.,
Appellee.
_____________________________/
Opinion filed January 12, 2009.
An appeal from the Circuit Court for Alachua County.
Robert E. Roundtree, Jr., Judge.
Philip M. Burlington of Burlington & Rockenbach, P.A, West Palm Beach; and
Robert A. Lash of Moody, Salzman & Lash, P.A., Gainesville, for Appellant.
Jefferson M. Braswell of Scruggs & Carmichael, P.A., Gainesville, for Appellee.
PER CURIAM.
Diamond Regal Development, Inc. (“Diamond Regal”) appeals from a
judgment based on a jury verdict in favor of Matinnaz Construction, Inc.
(“Matinnaz”) in a contract dispute regarding the construction of a condominium
complex, Eagle Trace. Diamond Regal asserts that the trial court erred in holding
that a general contractor who had been an unsuccessful bidder on the contract
could not testify, as an expert, to the cost of constructing Eagle Trace because of
his relationship to the litigation. We agree. Therefore, we reverse and remand for a
new trial. We affirm the remaining issues on appeal without further discussion.
Diamond Regal contracted with Matinnaz to construct Eagle Trace in May
2005 for $20,568,000.00. The contract provided that Matinnaz would substantially
complete the project within 703 working days and that progress payments would
be paid based on the percentage of work completed. Approximately six months
into construction, the parties began having disputes regarding the performance of
the contract. Diamond Regal alleged that Matinnaz was not working quickly
enough, and Matinnaz argued that it was not receiving sufficient compensation for
the work it was completing as the construction progressed. Matinnaz ceased
construction in November 2005.
Both parties filed complaints against each other alleging breach of contract
and other claims. The cases were consolidated and proceeded to trial. Diamond
Regal argued that Matinnaz was not entitled to any damages under the contract
because it had completed only 4.5% of Eagle Trace even though 26% of the total
building period had passed. Diamond Regal alleged that Matinnaz had grossly
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underbid the project and refused to continue construction when it realized its error,
thus breaching the contract. Matinnaz argued that it ceased construction because
Diamond Regal refused to make progress payments pursuant to the terms of the
contract. Matinnaz presented expert testimony that it had completed 7.9% of Eagle
Trace. Matinnaz argued it was owed over $3,000,000.00 under the contract,
including more than $1,500,000.00 in lost profits.
Diamond Regal called James Walker, who had been a certified building
contractor for seventeen years, to testify as an expert witness. Diamond Regal
intended to introduce Walker’s expert opinion that the cost of constructing Eagle
Trace exceeded Matinnaz’s bid by approximately $6,000,000.00 and that, as such,
Matinnaz was entitled to no lost profits or damages under the contract. Walker
based his opinion on the bid he had submitted in his unsuccessful attempt to win
the Eagle Trace contract. The trial court ruled Walker could not testify as an
expert because he was an unsuccessful bidder and had an interest in the contract at
issue. The trial court instructed the jury that Walker was not testifying as an expert
witness.1
Diamond Regal argues on appeal that the trial court erred in instructing the jury
that Walker was not an expert, but its counsel suggested the trial court give
essentially the same instruction. Therefore, any error in the trial court’s jury
instruction was invited error and is not a basis for reversal on appeal. See Glabvo
Dredging Contractors v. Brown, 374 So. 2d 607, 608 (Fla. 3d DCA 1979) (“A
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During Matinnaz’s closing argument, counsel repeatedly emphasized that
Matinnaz had provided the only expert testimony as to the amount it was owed
under the contract. The jury instructions did not indicate that expert testimony was
to be given the same weight as lay testimony. The jury entered a verdict in favor of
Matinnaz, finding Diamond Regal in breach of contract and awarding Matinnaz
damages of $2,209,206.00, including lost profits. This appeal follows.
We review the trial court’s determination of whether a witness may testify as
an expert for abuse of discretion. See Doctors Co. v. Dep’t of Ins., 940 So. 2d 466,
469 (Fla. 1st DCA 2006). Expert testimony may be admitted on an issue if
technical or specialized knowledge will assist the jury in determining an issue of
fact. § 90.702, Fla. Stat. (2007). A witness must have sufficient knowledge, skill,
experience, training, or education regarding the evidence being introduced at trial
to testify as an expert. § 90.702.
A witness should not be excluded as an expert merely because he or she was
involved in the facts of the underlying case. See Weese v. Pinellas County, 668 So.
2d 221, 222-23 (Fla. 2d DCA 1996). It is also improper to exclude an otherwise
qualified expert from testifying because of the witness’ perceived bias. See Moore
party who submits a proposed jury instruction which is adopted by the trial court
and given to the jury may not be heard to urge, on appeal, error in such
instruction.”).
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v. Huntington Nat’l Bank of Columbus, 352 So. 2d 589, 590 (Fla. 3d DCA 1977).
In Weese, the trial court excluded the testimony of one of the plaintiffs who was
proffered as an expert on the issue of business damages stemming from the
county’s taking of his used car lot. 668 So. 2d at 222-23. The plaintiff was familiar
with the used car business in general and was aware of the specific damages his lot
incurred. Id. The Weese court held that the plaintiff should have been able to
testify as an expert. Id. Similarly, in Moore, the court determined that the trial
court could not exclude an otherwise qualified expert witness from testifying due
to perceived bias, as the jury determines witness credibility. 352 So. 2d at 590. The
trial court in Moore had excluded the witness because he acted as “more of an
advocate” than an expert in other cases where he had testified as an expert witness.
Id.
In the instant case, the cost to construct Eagle Trace was a technical issue
about which an expert’s testimony could assist the jury’s determination. Diamond
Regal established that Walker had sufficient knowledge and experience regarding
this issue because he had been a certified building contractor for seventeen years.
Based on the authority of Weese and Moore, the trial court’s exclusion of Walker
from testifying as an expert witness simply because he was a frustrated bidder on
the project was improper. Any perceived bias on Walker’s part is an issue of
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credibility to be determined by the jury. Accordingly, we hold that the trial court
abused its discretion in excluding Walker from testifying as an expert.
We must next determine whether the trial court’s exclusion of Walker from
testifying as an expert was harmless, in light of the fact that Walker was able to
testify to his lay opinion of the cost to construct Eagle Trace. The trial court
instructed the jury that Walker was not considered an expert. In closing arguments,
counsel for Matinnaz further highlighted the fact that Walker was not an expert by
repeatedly stating that it had presented the only expert testimony as to costs and
lost profits. Additionally, the trial court did not instruct the jury that expert
testimony was to be given the same weight as lay testimony. We cannot find that
the exclusion of Walker’s expert opinion did not influence the jury’s award of
damages to Matinnaz. Therefore, the trial court’s failure to allow Walker to testify
as an expert was not harmless. AFFIRMED in part, REVERSED in part, and
REMANDED for a new trial.
LEWIS and THOMAS, JJ., and LAWRENCE, JR., L. ARTHUR, SENIOR JUDGE,
CONCUR.
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