Gonzalez v. Barrenechea

Full title: R. Randy Gonzalez, Appellant/Cross-Appellee, v. Carlos M. Barrenechea…

Court: Third District Court of Appeal State of Florida

Date published: Jan 21, 2015

No. 3D12-3430 (Fla. Dist. Ct. App. Jan. 21, 2015)

Opinion

No. 3D12-3430 No. 3D13-987

01-21-2015

R. Randy Gonzalez, Appellant/Cross-Appellee, v. Carlos M. Barrenechea, etc., et al., Appellees/Cross-Appellants.

Coffey Burlington P.L., and Kevin C. Kaplan, for appellant/cross-appellee. Cole, Scott & Kissane, P.A., and Scott A. Cole and Anne Sullivan Magnelli, for appellees/cross-appellants.

LOGUE, J.

Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 10-46125 Appeals from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge. Coffey Burlington P.L., and Kevin C. Kaplan, for appellant/cross-appellee. Cole, Scott & Kissane, P.A., and Scott A. Cole and Anne Sullivan Magnelli, for appellees/cross-appellants. Before SUAREZ, SALTER, and LOGUE, JJ. LOGUE, J.

R. Randy Gonzalez ("homeowner") appeals from a final judgment in his action against Ramon Pacheco and his design firm, Ramon Pacheco and Associates, Inc. (collectively, "the Pacheco defendants"). The trial court awarded the homeowner direct damages for his costs in redesigning and replacing the air conditioning system in his newly constructed home, but denied the homeowner's request for loss of use damages for his lost use of the home during the twenty-month period in which the system was replaced. Because the trial court erred in denying loss of use damages, we reverse.

FACTS AND PROCEDURAL HISTORY

On March 9, 2005, the homeowner and the Pacheco defendants entered into a contract, under which Pacheco and his firm were responsible for the design of the homeowner's new home, including the air conditioning system. After the home was completed, the homeowner discovered that the air conditioning system did not adequately cool the home. As a result, the homeowner could not move into the home. Pacheco was advised of the problems with the air conditioning system, but did not take actions to remedy them.

The homeowner hired a new design firm to address the problems. The air conditioning system was subsequently repaired, requiring a twenty-month process that the homeowner claimed to be destructive, messy, and intrusive. During this period, the homeowner asserted, the home was unsuitable for living.

The homeowner made limited use of the home during the repair period. The homeowner's son slept in the home intermittently, serving as a de-facto security guard and allowing the construction crews access to the home when necessary. The homeowner also docked his boat behind the home, parked his cars in the garage, and stored furniture that had been purchased for the home inside the home.

On August 24, 2010, the homeowner filed a complaint against the Pacheco defendants and others for the negligent and defective design of the air conditioning system. With respect to the Pacheco defendants, the complaint brought claims of breach of contract, negligence, and negligent misrepresentation.

At trial, the homeowner sought both direct damages for the costs incurred in replacing the faulty air conditioning system and loss of use damages stemming from his inability to move into the home during the repair period. With respect to loss of use damages, the homeowner presented the testimony of Britt Rosen, a real estate appraiser. Rosen testified that the rental value of the home during the repair period, based on comparable rentals in the area, was $15,500 per month. On cross-examination, Rosen admitted that he was unaware of the limited uses that the homeowner was making of the home during the repair period—docking his boat, parking his cars, storing his furniture, and allowing his son to sleep in the home intermittently. When asked if there would be a rental value for a home with those uses being made, Rosen testified that "[t]here would be a rental market for it, but it would be somewhat diminished for that needed garage storage and needed use of the dock." He also admitted that he had not conducted that analysis.

Following a bench trial, the trial court entered a detailed findings of fact and conclusions of law. The trial court concluded that "the preponderance of the evidence at trial was that the System's design was defective, in breach of the [Pacheco] Defendants' legal obligations." The trial court found that the homeowner and his family "were unable to move into the home during this 20 month period." The trial court awarded the homeowner $77,919 in direct damages for the redesign and repair of the air conditioning system. The trial court denied loss of use damages, however, finding that such damages were "not supported by the evidence." Specifically, the trial court noted that Rosen had admitted on cross-examination that his opinion was based on "flawed assumptions," because he had not taken the homeowner's limited uses of the house during the repair period into account in his damage calculation. The trial court added that Rosen had admitted that the rental value would be lower for the home, considering these uses. The trial court expressed concern that to award the homeowner loss of use damages would permit the homeowner a windfall.

The trial court entered a final judgment reflecting these damages. On rehearing, the homeowner sought as alternative relief to reopen the case to permit him to present evidence of these adjustments. The trial court denied rehearing on this point. These timely appeals followed.¹

1 We affirm, without discussion, the issues raised on appeal by the Pacheco defendants.

ANALYSIS

The primary issue presented on appeal is whether the trial court erred in finding the loss of use damages too speculative because the homeowner's expert did not consider the homeowner's limited use of the home during the repair period to adjust the damage calculation. Because the expert's testimony met the homeowner's burden with respect to establishing these types of damages, the trial court erred in denying loss of use damages.

Under Florida law, a homeowner that loses the use of a structure because of delay in its completion is entitled to damages for that lost use. Russo v. Heil Constr., Inc., 549 So. 2d 676, 677 (Fla. 5th DCA 1989). Florida courts have held that "[d]amages for delay in construction are measured by the rental value of the building under construction during the period of delay." Fisher Island Holdings, LLC v. Cohen, 983 So. 2d 1203, 1204 (Fla. 3d DCA 2008); see also Vanater v. Tom Lilly Constr., 483 So. 2d 506, 508 (Fla. 4th DCA 1986) ("Where a contractor breaches a contract by failing to complete an improvement, the owner is entitled to damages for delay in completion measured by its rental value during the period of delay.").

In this case, the homeowner provided Rosen's estimation of the reasonable rental value of the home to establish the amount of loss of use damages. Rosen used the rental values of three comparable properties to establish the reasonable rental value of the home during the repair period. This testimony was sufficient to constitute a prima facie case for the value of the lost use of the home during the repair period. See Fisher Island Holdings, 983 So. 2d at 1204.

There are undoubtedly instances where an expert's testimony on loss of use damages would be unreliable, such as where the "comparable" properties are not truly comparable or where the expert fails to make necessary adjustments to take into account significant differences between the home at issue and the comparable homes. But that is not the case here. The Pacheco defendants did not challenge the properties Rosen used as the comparable properties in his analysis, or the adjustments that Rosen made to determine the reasonable rental value of the home at issue, assuming that the entire home was available for rental.

The Pacheco defendants, instead, challenged Rosen's damage calculation as lacking adjustments for four limited uses that the homeowner had made of the property during the repair period—storing furniture in the home, parking cars in the garage, docking a boat behind the home, and allowing his son to sleep in the home intermittently to serve as a de-facto security guard. We note that none are so large as to negate the rental value arrived at by Rosen. And, significantly, had the homeowner not made these limited uses of the home during the repair period, each use would likely have been subject to a counter-adjustment. For example, if the furniture, boat, and cars were not stored at the home, the homeowner would likely have had to pay to store these items elsewhere.

Most importantly though, once the homeowner had established his prima facie case of loss of use damages, the burden of proof shifted to the Pacheco defendants to establish any set-off. Fla. Farm Bureau Cas. Ins. Co. v. Mathis, 33 So. 3d 94, 97 (Fla. 1st DCA 2010); Azemco, Inc. v. Brown, 553 So. 2d 1245, 1246 (Fla. 3d DCA 1989). Here, the Pacheco defendants merely highlighted during Rosen's cross-examination that Rosen had not considered these adjustments in his damage calculation—they neither presented evidence of the value of these adjustments nor cooperated with the homeowner in his attempt to reopen his case to present such evidence. Because the homeowner presented a sufficient prima facie case of loss of use damages, the Pacheco defendants could not defeat this claim by highlighting missing adjustments for which the Pacheco defendants did not present any evidence of value.

Although an award of the full amount of loss of use damages claimed by the homeowner here would arguably result in a small windfall to the homeowner, because that damage calculation does not account for adjustments for his limited use of the home during the repair period, we analogize this situation to the rule used with respect to payments to a tort plaintiff from a collateral source. In these situations, the defendant tortfeasor is not entitled to a set-off for such payments, to prevent the defendant tortfeasor from getting a windfall. Restatement (Second) of Torts § 920A cmt. b (1979) ("[I]t is the position of the law that a benefit that is directed to the injured party should not be shifted so as to become a windfall for the tortfeasor."); see also Robert E. Owen & Assocs., Inc. v. Gyongyosi, 433 So. 2d 1023, 1025 (Fla. 4th DCA 1983).

Here too, although the Pacheco defendants may have been entitled to a set-off for the limited uses that the homeowner made of the home during the repair period, given the choice between a small windfall for the injured plaintiff and a large windfall to the Pacheco defendants as tortfeasors, the law favors a windfall for the injured plaintiff. Moreover, the Pacheco defendants could have mitigated this windfall by meeting their own burden of establishing value for the adjustments at issue.

CONCLUSION

For the foregoing reasons, we find that the trial court erred in denying loss of use damages where the testimony of the homeowner's expert established a prima facie case for loss of use damages.

Reversed and remanded. Salter, J., concurs.

SUAREZ, J.

I concur in part and respectfully dissent in part from the majority's opinion in this appeal. I join the majority in affirming the trial court's findings as to the architect's liability and the damages awarded to redesign and reconstruct the air conditioning system in the new house. I must respectfully dissent from the majority's reversal of the trial court's order on the loss of use claim. I agree with the trial courts' denial of the loss of use damages claim as the claim was not supported by the evidence and the applicable law.

The Homeowner chose to claim rental value of the home as his basis for the loss of use damages. The problem at trial was that the Homeowner's expert witness testified as to the rental value of comparable residences, but learned at trial that, in fact, during the time in question the Homeowner was using parts of the property for his own use. The Homeowner kept his boat tied up to the dock behind the house. He stored over $500,000 worth of furniture in the house and stored his cars in the garage. The expert testified that his comparables did not include homes where the docks, garage and rooms of the house were not available to the renter. He stated at the trial that he was not prepared to give a valuation of the loss of use with those factors. The Homeowner did not ask for a continuance when the new information came to light at trial. The trial court found that the Homeowner entirely failed to prove his damages for loss of use because the values testified to were inaccurate. The trial court, therefore, denied the loss of use claim. I agree. To find otherwise, the trial court would have had to guess at the accurate amount of damages. The finder of fact cannot do so.

The majority bases the reversal on a factual assumption that none of the damage calculation adjustments for the Homeowner's use of the building during the loss of use period is "so large as to negate the rental value arrived at by Rosen." There is no factual basis in the record for so concluding. The panel also concludes that the defendant could have pled set-offs. This is true, had the defendant been made aware of the all the facts prior to trial - facts that were not fully set forth in the Complaint. If the defendant had been made aware of the facts, it could have asserted set-off and counter-adjustments in its Answer. Florida Rule of Civil Procedure 1.110(b)(2) requires that "[a] pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." [e.s.]; see Collins v. Bannon, 774 So. 2d 66, 67 (Fla. 2d DCA 2000) (holding that a judgment may not be based on an issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties). Apparently, additional facts not set forth in the Complaint came out at trial during the expert's cross-examination, i.e., the Homeowner did not disclose in the Complaint his partial use of the property over the time period for which he claimed a total loss of use. Thus, as the expert witness Rosen admitted, the comparable rental values on which he based his opinion were inaccurate. The defendant should not be penalized for not pleading affirmative defenses to a cause of action set forth in the Complaint but not accurately supported by all the facts.

As an initial matter, the trial court was correct to deny the plaintiff Homeowner's motion for rehearing in order to reopen the issue of damages. A party's failure to prove damages is not a proper ground for rehearing; rehearing is not intended as a device to present additional new evidence not presented at the original trial. Allard v. Al-Nayem Int'l, 59 So. 3d 198 (Fla. 2d DCA 2011). See St. Petersburg Hous. Auth. v. J.R. Dev., 706 So. 2d 1377, 1377 (Fla. 2d DCA 1998) (reversing an order granting a rehearing on damages because such a hearing "improperly allows appellee a 'second bite at the apple' at proving damages"). As the court in St. Petersburg stated,

[A] rehearing is to be granted in order to correct errors in the first decision. There were no errors here. There was only an absence of proof or, as the court stated, there were "deficiencies" in the proof. Rehearing is not intended as a device to present additional evidence that was available, although not presented, at the original trial. Moreover, the law presumes that litigants who have concluded a trial on the merits have presented all available, competent, material evidence in support of their case. Once the parties rested here, in the absence of legal or factual error or newly-discovered evidence, the case was concluded, and the parties had a right to rely on that fact, especially given the lengthy pendency of the action. Since there was no error to correct, the trial was completed and the parties had rested.

While this was not a jury trial, that fact does not affect our determination as to finality.

St. Petersburg Hous. Auth., 706 So. 2d at 1378. Cf. Emerald Pointe Prop. Owners' Ass'n, Inc. v. Commercial Const. Indus., Inc., 978 So. 2d 873, 879 (Fla. 4th DCA 2008) (finding insufficient evidence to support a damage award where plaintiff failed to prove the value of its labor, services and materials actually furnished, but only introduced evidence as to what it normally charged). Finally, the sole and only purpose of a motion for rehearing is to call to the attention of the court some fact, precedent, or rule of law the court has overlooked in rendering its decision. State ex rel. Jaytex Realty Co. v. Green, 105 So. 2d 817, 818 (Fla. 1st DCA 1958). Where there was no error in law or fact to correct, it was entirely within the trial judge's discretion to deny the plaintiff's motion on rehearing to reopen the case to allow additional discovery of evidence of revised rental valuation damages.

A trial court must base its valuation of [an asset] upon competent substantial evidence. Greer v. Greer, 438 So. 2d 535 (Fla. 2d DCA 1983); Novak v. Novak, 429 So. 2d 414 (Fla. 4th DCA 1983). When property valuation is an integral part of the court's entire plan of distribution, confusion as to value requires reversal of the property award. Saxton v. Saxton, 454 So. 2d 575 (Fla. 4th DCA 1984). Or, in this case, the court determined that no award could be made because the Homeowner's expert admitted his data were based on flawed facts and assumptions, that as a result he could not make an accurate rental valuation, and that a revised rental valuation would likely decrease. Significantly, the trial court determined that the Homeowner's expert "did not offer an opinion about the estimated rental value based on the actual, restricted use of the property that would have been available to prospective renters during the presumed rental period." Which is to say, the facts necessary to an accurate rental valuation do not exist in this record. See Smith v. Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA 1989) (finding testimony that $15,000 would be a "fair assessment" or "good gauge" of expense of restoration of leased premises recoverable against lessee was insufficient to satisfy "reasonable certainty" test for damage award against lessee, holding that damages cannot be based upon speculation or guesswork, but must have some reasonable basis in fact). Where there are no facts to support a financial conclusion, that conclusion must fail.

In Ross v. Bandi, 566 So. 2d 55 (Fla. 4th DCA 1990), the appellate court reversed where the record reflected that appellant's expert accountant could not determine the corporation's value because the books that she needed to make this valuation were not made available to her. Appellee presented no expert testimony as to the corporation's value and there was no shifting of the burden to the appellee to prove otherwise. In the case before us, the Homeowner's expert admitted that his comparable property evaluations were inaccurate based on new facts that the Homeowner had occupied the dock, the garage, and space within the residence sufficient to store $500,000 worth of furniture and occasionally house his son. The Homeowner's expert was unable to say what the rental value was for the property with these revised space considerations. The testimony as to what he believed the rental value to be based on a total loss of use - without the additional facts of partial loss of use - was thus inadequate to enable the trial court to make a fair determination, and the trial court correctly found that the plaintiff had not proven damages for total loss of use.

"Even if the set-off issue could be raised for the first time on appeal, 'appellate review is only possible when resolution of the issues does not require factual determinations.'" Florida Farm Bureau Cas. Ins. Co. v. Mathis, 33 So. 3d 94 (Fla. 1st DCA 2010) [e.s.] In Mathis, there was no evidence in the record as to the amount of flood damage [read, no comps for rental valuation based on the new reduced space considerations], and "the jury was not asked to allocate what portion of the damage was caused by flood [read, what portion of the damages from loss of use would result from revised comps], which is a question of fact for the jury [read, fact-finder] to determine." Mathis, at 98. In the case before us, there is certainly enough record evidence to say the rental valuation comparables presented by plaintiff's expert were not accurate; thus there are not sufficient facts in evidence as to the actual rental value where the plaintiff Homeowner made a claim for total loss of use for a specific period of time. The appellate court cannot be the fact-finder on appeal. See also Trailer Ranch v. Levine, 523 So. 2d 629 (Fla. 4th DCA 1988) (reversing damage award where the evidence of loss of business was insufficient to support that aspect of the jury verdict and judgment awarding damages for loss of business value).

An appellate court does not retry a case but accepts a determination of facts made by the trial judge where the record discloses testimony from which the trial judge could have determined the facts, which was done in this case. The truth or falsity of the testimony of the expert witness, and the weight to be given the testimony are matters for the trier of fact to determine, not an appellate court. Pergament v. Pergament, 117 So. 2d 26, 29 (Fla. 2d DCA 1959). Furthermore, an appellate court will not substitute its judgment for that of the trial court when there is sufficient evidence to support the judgment entered. Mason v. Martino, 336 So. 2d 396, 397 (Fla. 3d DCA 1976).

Loss of use is recoverable under Florida law.² Loss of use damages are only recoverable, however, when an owner suffers a complete deprivation of use of his property. Schryburt v. Olesen, 475 So. 2d 715, 717 (Fla. 2d DCA 1985); AT&T Corp. v. Lanzo Const. Co., Fla.; 74 F. Supp. 2d 1223, 1224-25 (S.D. Fla. 1999). In Schryburt, the Court stated that

2 Florida has adopted the Restatement of Torts as the rule of damages applicable to injuries to chattels. Meakin v. Dreier, 209 So. 2d 252, 253-254 (Fla. 2d DCA 1968). Section 928 of the Restatement of Torts provides: When one is entitled to a judgment for harm to chattels not amounting to a total destruction of value, the damages include compensation for....(b) loss of use. Restatement (Second) of Torts § 928 (1979). Florida law recognizes that a party is entitled to recover loss of use damages even if a substitute chattel is not utilized. See Meakin, 209 So. 2d at 255 (holding that the plaintiff was entitled to damages for loss of use of a motor vehicle even though a substitute vehicle was not rented); Finkel v. Challenger Marine Corp., 316 F. Supp. 549 (S.D. Fla. 1970) (awarding loss of use damages to the owner of a private yacht even though no substitute vehicle was used).

Second, the court awarded $57,722 for loss of use from February 1980 through December 1983, based upon expert testimony of the cost of renting a similar home for that period of time. Appellees continued to reside in the home throughout most of this time period. We recognize that in order to recover for loss of use it is not necessary to actually obtain comparable property. See Meakin v. Dreier, 209 So. 2d 252 (Fla. 2d DCA 1968), and Alonso v. Fernandez, 379 So. 2d 685 (Fla. 3d DCA 1980). However, in both Meakin and Alonso, the plaintiff was deprived of complete use of the property, thus distinguishing those cases from the case before us. In our case, there was no such deprivation of complete use of the property. We hold that the court erred in awarding damages for loss of use in these circumstances. This item is also stricken from the award.

Schryburt, 475 So. 2d at 717. Here, the plaintiff Homeowner did not set forth in the initial pleading all facts necessary to support the issue of total loss of use. The defendant was thus precluded from the outset from asserting any affirmative defense of set-off or adjustment.

The trial court determined that the evidence was insufficient to prove the actual damages incurred for loss of use because there were no facts presented regarding the reduction in rental value, however great or small, as a result of the owner's use of certain aspects of the house. The plaintiff's expert's testimony was admittedly based on incorrect assumptions and facts. Plaintiff proved damages for loss of use of a much larger space than what actually existed during the timespan sued for. He should not be overpaid for what the record shows is an admittedly faulty loss of use rental valuation. The appellate court cannot speculate that the rental valuation reduction is "limited" or that the windfall to the plaintiff owner would be "small" - that is a factual determination and where there are no data and no facts in the record to support that conclusion, the appellate court must allow the trial court's ruling to stand.

SUAREZ, J.

I concur in part and respectfully dissent in part from the majority's opinion in this appeal. I join the majority in affirming the trial court's findings as to the architect's liability and the damages awarded to redesign and reconstruct the air conditioning system in the new house. I must respectfully dissent from the majority's reversal of the trial court's order on the loss of use claim. I agree with the trial courts' denial of the loss of use damages claim as the claim was not supported by the evidence and the applicable law.

The Homeowner chose to claim rental value of the home as his basis for the loss of use damages. The problem at trial was that the Homeowner's expert witness testified as to the rental value of comparable residences, but learned at trial that, in fact, during the time in question the Homeowner was using parts of the property for his own use. The Homeowner kept his boat tied up to the dock behind the house. He stored over $500,000 worth of furniture in the house and stored his cars in the garage. The expert testified that his comparables did not include homes where the docks, garage and rooms of the house were not available to the renter. He stated at the trial that he was not prepared to give a valuation of the loss of use with those factors. The Homeowner did not ask for a continuance when the new information came to light at trial. The trial court found that the Homeowner entirely failed to prove his damages for loss of use because the values testified to were inaccurate. The trial court, therefore, denied the loss of use claim. I agree. To find otherwise, the trial court would have had to guess at the accurate amount of damages. The finder of fact cannot do so.

The majority bases the reversal on a factual assumption that none of the damage calculation adjustments for the Homeowner's use of the building during the loss of use period is "so large as to negate the rental value arrived at by Rosen." There is no factual basis in the record for so concluding. The panel also concludes that the defendant could have pled set-offs. This is true, had the defendant been made aware of the all the facts prior to trial - facts that were not fully set forth in the Complaint. If the defendant had been made aware of the facts, it could have asserted set-off and counter-adjustments in its Answer. Florida Rule of Civil Procedure 1.110(b)(2) requires that "[a] pleading which sets forth a claim for relief ... must state a cause of action and shall contain ... a short and plain statement of the ultimate facts showing that the pleader is entitled to relief." [e.s.]; see Collins v. Bannon, 774 So. 2d 66, 67 (Fla. 2d DCA 2000) (holding that a judgment may not be based on an issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties). Apparently, additional facts not set forth in the Complaint came out at trial during the expert's cross-examination, i.e., the Homeowner did not disclose in the Complaint his partial use of the property over the time period for which he claimed a total loss of use. Thus, as the expert witness Rosen admitted, the comparable rental values on which he based his opinion were inaccurate. The defendant should not be penalized for not pleading affirmative defenses to a cause of action set forth in the Complaint but not accurately supported by all the facts.

As an initial matter, the trial court was correct to deny the plaintiff Homeowner's motion for rehearing in order to reopen the issue of damages. A party's failure to prove damages is not a proper ground for rehearing; rehearing is not intended as a device to present additional new evidence not presented at the original trial. Allard v. Al-Nayem Int'l, 59 So. 3d 198 (Fla. 2d DCA 2011). See St. Petersburg Hous. Auth. v. J.R. Dev., 706 So. 2d 1377, 1377 (Fla. 2d DCA 1998) (reversing an order granting a rehearing on damages because such a hearing "improperly allows appellee a 'second bite at the apple' at proving damages"). As the court in St. Petersburg stated,

[A] rehearing is to be granted in order to correct errors in the first decision. There were no errors here. There was only an absence of proof or, as the court stated, there were "deficiencies" in the proof. Rehearing is not intended as a device to present additional evidence that was available, although not presented, at the original trial. Moreover, the law presumes that litigants who have concluded a trial

on the merits have presented all available, competent, material evidence in support of their case. Once the parties rested here, in the absence of legal or factual error or newly-discovered evidence, the case was concluded, and the parties had a right to rely on that fact, especially given the lengthy pendency of the action. Since there was no error to correct, the trial was completed and the parties had rested. While this was not a jury trial, that fact does not affect our determination as to finality.

St. Petersburg Hous. Auth., 706 So. 2d at 1378. Cf. Emerald Pointe Prop. Owners' Ass'n, Inc. v. Commercial Const. Indus., Inc., 978 So. 2d 873, 879 (Fla. 4th DCA 2008) (finding insufficient evidence to support a damage award where plaintiff failed to prove the value of its labor, services and materials actually furnished, but only introduced evidence as to what it normally charged). Finally, the sole and only purpose of a motion for rehearing is to call to the attention of the court some fact, precedent, or rule of law the court has overlooked in rendering its decision. State ex rel. Jaytex Realty Co. v. Green, 105 So. 2d 817, 818 (Fla. 1st DCA 1958). Where there was no error in law or fact to correct, it was entirely within the trial judge's discretion to deny the plaintiff's motion on rehearing to reopen the case to allow additional discovery of evidence of revised rental valuation damages.

A trial court must base its valuation of [an asset] upon competent substantial evidence. Greer v. Greer, 438 So. 2d 535 (Fla. 2d DCA 1983); Novak v. Novak, 429 So. 2d 414 (Fla. 4th DCA 1983). When property valuation is an integral part of the court's entire plan of distribution, confusion as to value requires reversal of the property award. Saxton v. Saxton, 454 So. 2d 575 (Fla. 4th DCA 1984). Or, in this case, the court determined that no award could be made because the Homeowner's expert admitted his data were based on flawed facts and assumptions, that as a result he could not make an accurate rental valuation, and that a revised rental valuation would likely decrease. Significantly, the trial court determined that the Homeowner's expert "did not offer an opinion about the estimated rental value based on the actual, restricted use of the property that would have been available to prospective renters during the presumed rental period." Which is to say, the facts necessary to an accurate rental valuation do not exist in this record. See Smith v. Austin Dev. Co., 538 So. 2d 128, 129 (Fla. 2d DCA 1989) (finding testimony that $15,000 would be a "fair assessment" or "good gauge" of expense of restoration of leased premises recoverable against lessee was insufficient to satisfy "reasonable certainty" test for damage award against lessee, holding that damages cannot be based upon speculation or guesswork, but must have some reasonable basis in fact). Where there are no facts to support a financial conclusion, that conclusion must fail.

In Ross v. Bandi, 566 So. 2d 55 (Fla. 4th DCA 1990), the appellate court reversed where the record reflected that appellant's expert accountant could not determine the corporation's value because the books that she needed to make this valuation were not made available to her. Appellee presented no expert testimony as to the corporation's value and there was no shifting of the burden to the appellee to prove otherwise. In the case before us, the Homeowner's expert admitted that his comparable property evaluations were inaccurate based on new facts that the Homeowner had occupied the dock, the garage, and space within the residence sufficient to store $500,000 worth of furniture and occasionally house his son. The Homeowner's expert was unable to say what the rental value was for the property with these revised space considerations. The testimony as to what he believed the rental value to be based on a total loss of use - without the additional facts of partial loss of use - was thus inadequate to enable the trial court to make a fair determination, and the trial court correctly found that the plaintiff had not proven damages for total loss of use.

"Even if the set-off issue could be raised for the first time on appeal, 'appellate review is only possible when resolution of the issues does not require factual determinations.'" Florida Farm Bureau Cas. Ins. Co. v. Mathis, 33 So. 3d 94 (Fla. 1st DCA 2010) [e.s.] In Mathis, there was no evidence in the record as to the amount of flood damage [read, no comps for rental valuation based on the new reduced space considerations], and "the jury was not asked to allocate what portion of the damage was caused by flood [read, what portion of the damages from loss of use would result from revised comps], which is a question of fact for the jury [read, fact-finder] to determine." Mathis, at 98. In the case before us, there is certainly enough record evidence to say the rental valuation comparables presented by plaintiff's expert were not accurate; thus there are not sufficient facts in evidence as to the actual rental value where the plaintiff Homeowner made a claim for total loss of use for a specific period of time. The appellate court cannot be the fact-finder on appeal. See also Trailer Ranch v. Levine, 523 So. 2d 629 (Fla. 4th DCA 1988) (reversing damage award where the evidence of loss of business was insufficient to support that aspect of the jury verdict and judgment awarding damages for loss of business value).

An appellate court does not retry a case but accepts a determination of facts made by the trial judge where the record discloses testimony from which the trial judge could have determined the facts, which was done in this case. The truth or falsity of the testimony of the expert witness, and the weight to be given the testimony are matters for the trier of fact to determine, not an appellate court. Pergament v. Pergament, 117 So. 2d 26, 29 (Fla. 2d DCA 1959). Furthermore, an appellate court will not substitute its judgment for that of the trial court when there is sufficient evidence to support the judgment entered. Mason v. Martino, 336 So. 2d 396, 397 (Fla. 3d DCA 1976).

Loss of use is recoverable under Florida law.³ Loss of use damages are only recoverable, however, when an owner suffers a complete deprivation of use of his property. Schryburt v. Olesen, 475 So. 2d 715, 717 (Fla. 2d DCA 1985); AT&T Corp. v. Lanzo Const. Co., Fla.; 74 F. Supp. 2d 1223, 1224-25 (S.D. Fla. 1999). In Schryburt, the Court stated that

3 Florida has adopted the Restatement of Torts as the rule of damages applicable to injuries to chattels. Meakin v. Dreier, 209 So. 2d 252, 253-254 (Fla. 2d DCA 1968). Section 928 of the Restatement of Torts provides: When one is entitled to a judgment for harm to chattels not amounting to a total destruction of value, the damages include compensation for....(b) loss of use. Restatement (Second) of Torts § 928 (1979). Florida law recognizes that a party is entitled to recover loss of use damages even if a substitute chattel is not utilized. See Meakin, 209 So. 2d at 255 (holding that the plaintiff was entitled to damages for loss of use of a motor vehicle even though a substitute vehicle was not rented); Finkel v. Challenger Marine Corp., 316 F. Supp. 549 (S.D. Fla. 1970) (awarding loss of use damages to the owner of a private yacht even though no substitute vehicle was used).
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Second, the court awarded $57,722 for loss of use from February 1980 through December 1983, based upon expert testimony of the cost of renting a similar home for that period of time. Appellees continued to reside in the home throughout most of this time period. We recognize that in order to recover for loss of use it is not necessary to actually obtain comparable property. See Meakin v. Dreier, 209 So. 2d 252 (Fla. 2d DCA 1968), and Alonso v. Fernandez, 379 So. 2d 685 (Fla. 3d DCA 1980). However, in both Meakin and Alonso, the plaintiff was deprived of complete use of the property, thus distinguishing those cases from the case before us. In our case, there was no such deprivation of complete use of the property. We hold that the court erred in awarding damages for loss of use in these circumstances. This item is also stricken from the award.

Schryburt, 475 So. 2d at 717. Here, the plaintiff Homeowner did not set forth in the initial pleading all facts necessary to support the issue of total loss of use. The defendant was thus precluded from the outset from asserting any affirmative defense of set-off or adjustment.

The trial court determined that the evidence was insufficient to prove the actual damages incurred for loss of use because there were no facts presented regarding the reduction in rental value, however great or small, as a result of the owner's use of certain aspects of the house. The plaintiff's expert's testimony was admittedly based on incorrect assumptions and facts. Plaintiff proved damages for loss of use of a much larger space than what actually existed during the timespan sued for. He should not be overpaid for what the record shows is an admittedly faulty loss of use rental valuation. The appellate court cannot speculate that the rental valuation reduction is "limited" or that the windfall to the plaintiff owner would be "small" - that is a factual determination and where there are no data and no facts in the record to support that conclusion, the appellate court must allow the trial court's ruling to stand.