On March 09, 2018 a
Trial Materials
was filed
involving a dispute between
Taylor, Cynthia,
and
Been, Stephen,
Burnett, Douglas N,
Bush, Kelly,
Cate, Henry Vasse Iii,
Edward M. Segars, Llc,
Environmental Services Inc,
Gulfstream Design Group, Inc.,
Lahti, Matthew,
Nicholson, Willard Barlow Iii,
Nicholson-Williams, Inc. D B A Coldwell Banker,
Rock Springs Farm, Llc,
Segars, Edward Marshall,
Smith, Charles Kelly,
Southeast Georgia Acquisitions, Llc,
St. Johns Law Group, P.A.,
for Contracts and Indebtedness
in the District Court of St. Johns County.
Preview
Filing # 195111880 E-Filed 03/29/2024 03:12:05 PM
IN THE CIRCUIT COURT OF THE
7TH JUDICIAL CIRCUIT, IN AND FOR
ST. JOHNS COUNTY, FLORIDA
CYNTHIA TAYLOR
Plaintiff,
vs.
Case No.: CA18-292
SOUTHEAST GEORGIA ACQUISITIONS,
LLC, et al.
Defendants.
DEFENDANTS STEPHEN BEEN & HENRY VASSA CATE III’S RESPONSE IN
OPPOSITION TO PLAINTIFF CYNTHIA TAYLOR’S MOTION TO STRIKE THEM
FROM DEFENDANT EDWARD SEGARS’ EXPERT WITNESS LIST
Defendants STEPHEN BEEN and HENRY VASSA CATE III, by and through
undersigned counsel, respond to plaintiff CYNTHIA TAYLOR’s motion to strike them from
defendant EDWARD SEGARS’ expert witness list as follows:
BACKGROUND
Segars’ Expert Witness Disclosure. On March 10, 2022, Mr. Segars filed an expert
witness list identifying (among others) Mr. Been and Mr. Cate as expert witnesses. Their areas of
expertise were identified as: “Commercial Real Property Value; Development of land and lot yield
evaluation.” See Segars’ Expert Disclosure, ¶¶ 4, 5.
As this Court knows, Mrs. Taylor initially sued Mr. Been’s company Southeast Georgia
Acquisitions, LLC (“SGA”) for breach of contract (now Count I of the Fourth Amended
Complaint) after SGA did not purchase her property for $5 million pursuant to two vacant land
sales contracts. Mr. Been -- an experienced real estate developer for over 25 years -- made that
decision as SGA’s principal because Ms. Taylor’s property ultimately could not yield sufficient
developable lots to justify a $5 million purchase price. Ms. Taylor initially claimed that the actions
1
of SGA and others involved in that transaction caused her property to lose $1 million in value
because it had become encumbered by a PUD with a public park dedication during its rezoning.
Since this lawsuit was filed, Mrs. Taylor’s damage theory has changed multiple times and has
become complex and difficult to understand with the addition of multiple claims against Mr. Been,
Mr. Cate and others involved in the subsequent $4 million “Big Island” transaction.
Hybrid Witnesses. To defend Mr. Been, SGA, and Rock Springs Farms against Mrs.
Taylor’s various claims -- all predicated primarily on her lay opinion that her property was worth
$5 million until the PUD -- Mr. Been needs to explain to the jury why SGA walked away, and he
and Mr. Cate need to explain why Big Island entered into a contract for her property for $4 million.
Mr. Been and Mr. Cate have personal knowledge of the underlying facts of both transactions. But
they also are experts in land development and valuation. Moreover, Mr. Been vis-a-vis Rock
Springs is the current owner of the property at issue. It is well-settled that a “an owner is qualified
to testify as to the value of his property and that “an officer of a corporation is qualified to testify
regarding value if he has experience in the management of the affairs of the corporation and has a
knowledge of relevant values.” Witchell v. Londono, 707 So.2d 796, n.2 (Fla. 1st DCA 1998);
see also Morsch v. JP Morgan Chase Bank, Case No: 6:18-cv-148-Orl-40DCI (M.D. Fla. Nov. 07,
2018) (“Under Florida law, ‘[a]n owner is always competent to give h[er] opinion on the value of
h[er] property’…The owner need not be an expert, she need only be familiar with the
characteristics of the property, have knowledge or acquaintance with its uses and purposes, and
experience in dealing with it.”).
Accordingly, Mr. Been and Mr. Cate are “hybrid witnesses” -- those with personal
knowledge of relevant facts who also provide expert opinion testimony based on those facts. See
Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011); see also State Farm
Page | 2
Mutual Automobile Ins. Co. v. German, 12 So.3d 1286 (Fla. 5th DCA 2009, Torpy, J., concurring).
Florida law permits the use of “hybrid witnesses” at trial, even if they have a financial interest in
the outcome of the case. Contrary to Mrs. Taylor’s claim in her motion, Florida courts have
addressed this issue. This was the upshot of Katzman, where the Fourth DCA affirmed a trial
court’s order permitting limited financial bias discovery of a testifying physician who had agreed
to treat the plaintiffs/patients under a letter of protection (LOP). Ultimately, alleged financial bias
goes to the weight and not admissibility of “hybrid witness” testimony, and Mrs. Taylor is free to
cross-examine Mr. Been and Mr. Cate on any alleged financial bias. See German (recognizing that
a hybrid witness “may be questioned at trial concerning any bias he or she might have for or against
a party…”).
MRS. TAYLOR’S MOTION TO STRIKE
The best Mrs. Taylor could muster to support the proposition that financial bias precludes
Mr. Been and Mr. Cate from testifying at trial -- which conveniently would result in her spurious
damage theories going largely unrebutted -- is a non-binding order from Perfect 10, Inc. v.
Giganews -- a federal copyright infringement case from California where a district judge precluded
the owner of an adult website (Dr. Zada) from testifying at trial about copyright law and technical
matters. Dr. Zada was not excluded as an expert just because he had a financial interest in the case
(all parties do). Rather, he was excluded first and foremost because he was wholly unqualified to
testify about the scientific and legal matters about which he claimed to be an expert. Indeed, the
District Court’s description of Dr. Zada’s specious expertise could just as easily describe Ms.
Taylor’s claimed expertise in land development and valuation, zoning, and criminal law:
“Dr. Zada has never testified as an expert witness in any litigation
before, has never published any books or peer-reviewed articles on
any relevant topics at issue in this action…has no relevant academic
training…and has virtually no understanding of Usenet technologies
Page | 3
or Defendants’ server-side operations…However, in light of his
experience owning and operating Perfect 10, Dr. Zada considers
himself an expert on ‘the issuance of DCMA notices,’ the ‘response
of service providers to those notices,’ Perfect 10’s catalogue of adult
images, the content found on Giganews’ servers, the ‘damage that
has been caused to the industry by piracy,’ how ‘from a user
standpoint, the Usenet operates’ and ‘how other pay sites operate,
how other infringers operate,’ and ‘[t]he level of infringement…on
the Usenet.’
To begin with, the Court shares Judge Collins’ skepticism that Dr.
Zada qualifies as an expert for the purposes of this litigation at all.
(See Dkt. No. 180, p. 5 (raising ‘serious questions’ about Dr. Zada’s
prior testimony in declaration which rose to the level of ‘expert
testimony that Zada is not qualified to give’). To the extent Dr.
Zada’s testimony on Defendants’ ‘repeat infringer’ policies and the
amount of infringement found on Defendants’ Usenet servers
amounts to anything more than raw speculation, it is only because
he is testifying from his own observations as a lay witness. Dr.
Zada’s ‘expert’ opinions arising from those observations appear to
be little more than an attempt to add the gloss of expert opinion to
what are, at their core, factual questions that the jury must decide on
their own. The chance that excluding Dr. Zada’s expert opinions will
deny Perfect 10 access to an expert witness is infinitesimal because
Mr. Zada almost certainly lacks the specialized knowledge to
qualify as an expert…”
The District Court excluded Dr. Zada’s testimony “[u]nder all the circumstances of this
case.” Moreover, the District Court expressly acknowledged authority which recognizes that “the
fact that a party testifying as his own expert is not disinterested does not distinguish him from any
other party who testifies in his own behalf; and hired experts, who generally are highly
compensated-and by the party on whose behalf they are testifying-are not notably disinterested.”
Id. (quoting Tagatz v. Marquette University, 861 F.2d 1040, 1042 (7th Cir. 1988)).
Adoption of Co-Defendant(s)’ Response(s). The response(s) filed by any other co-
defendant(s) to the instant motion are incorporated by reference and adopted herein.
WHEREFORE, defendants STEPHEN BEEN and HENRY VASSA CATE III move this
Court for an Order denying plaintiff CYNTHIA TAYLOR’s motion to strike them from defendant
Page | 4
EDWARD SEGARS’ expert witness list, and for such other and further relief the Court deems just
and proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on March 29, 2024, a true and correct copy of the foregoing has
been electronically filed with the Clerk of Court and has been served pursuant to Florida Rule of
Judicial Administration 2.516, via the Florida Courts E-Filing Portal System.
THE FREVOLA LAW FIRM, PLLC
900 SE 3 Avenue
Suite 202
Fort Lauderdale, FL 33316
Direct: (407) 601-4755
Office: (407) 723-0256
By: /s/ ALBERT L. FREVOLA, JR.
ALBERT L. FREVOLA, JR.
Florida Bar No. 857416
Email: Al@frevolalaw.com
E-Service:
service@frevolalaw.com
al@frevolalaw.com
cricket@frevolalaw.com
And,
IVAN JOHN KOPAS, P.A.
530 38th Street
West Palm Beach, FL 33407
Telephone: (954) 614-0611
Facsimile: (954) 206-2266
By: /s/ IVAN JOHN KOPAS
IVAN JOHN KOPAS
Florida Bar No. 503711
Email: kopaspa@gmail.com
Page | 5
Preview
Filing # 195111880 E-Filed 03/29/2024 03:12:05 PM IN THE CIRCUIT COURT OF THE 7TH JUDICIAL CIRCUIT, IN AND FOR ST. JOHNS COUNTY, FLORIDA CYNTHIA TAYLOR Plaintiff, vs. Case No.: CA18-292 SOUTHEAST GEORGIA ACQUISITIONS, LLC, et al. Defendants. DEFENDANTS STEPHEN BEEN & HENRY VASSA CATE III’S RESPONSE IN OPPOSITION TO PLAINTIFF CYNTHIA TAYLOR’S MOTION TO STRIKE THEM FROM DEFENDANT EDWARD SEGARS’ EXPERT WITNESS LIST Defendants STEPHEN BEEN and HENRY VASSA CATE III, by and through undersigned counsel, respond to plaintiff CYNTHIA TAYLOR’s motion to strike them from defendant EDWARD SEGARS’ expert witness list as follows: BACKGROUND Segars’ Expert Witness Disclosure. On March 10, 2022, Mr. Segars filed an expert witness list identifying (among others) Mr. Been and Mr. Cate as expert witnesses. Their areas of expertise were identified as: “Commercial Real Property Value; Development of land and lot yield evaluation.” See Segars’ Expert Disclosure, ¶¶ 4, 5. As this Court knows, Mrs. Taylor initially sued Mr. Been’s company Southeast Georgia Acquisitions, LLC (“SGA”) for breach of contract (now Count I of the Fourth Amended Complaint) after SGA did not purchase her property for $5 million pursuant to two vacant land sales contracts. Mr. Been -- an experienced real estate developer for over 25 years -- made that decision as SGA’s principal because Ms. Taylor’s property ultimately could not yield sufficient developable lots to justify a $5 million purchase price. Ms. Taylor initially claimed that the actions 1 of SGA and others involved in that transaction caused her property to lose $1 million in value because it had become encumbered by a PUD with a public park dedication during its rezoning. Since this lawsuit was filed, Mrs. Taylor’s damage theory has changed multiple times and has become complex and difficult to understand with the addition of multiple claims against Mr. Been, Mr. Cate and others involved in the subsequent $4 million “Big Island” transaction. Hybrid Witnesses. To defend Mr. Been, SGA, and Rock Springs Farms against Mrs. Taylor’s various claims -- all predicated primarily on her lay opinion that her property was worth $5 million until the PUD -- Mr. Been needs to explain to the jury why SGA walked away, and he and Mr. Cate need to explain why Big Island entered into a contract for her property for $4 million. Mr. Been and Mr. Cate have personal knowledge of the underlying facts of both transactions. But they also are experts in land development and valuation. Moreover, Mr. Been vis-a-vis Rock Springs is the current owner of the property at issue. It is well-settled that a “an owner is qualified to testify as to the value of his property and that “an officer of a corporation is qualified to testify regarding value if he has experience in the management of the affairs of the corporation and has a knowledge of relevant values.” Witchell v. Londono, 707 So.2d 796, n.2 (Fla. 1st DCA 1998); see also Morsch v. JP Morgan Chase Bank, Case No: 6:18-cv-148-Orl-40DCI (M.D. Fla. Nov. 07, 2018) (“Under Florida law, ‘[a]n owner is always competent to give h[er] opinion on the value of h[er] property’…The owner need not be an expert, she need only be familiar with the characteristics of the property, have knowledge or acquaintance with its uses and purposes, and experience in dealing with it.”). Accordingly, Mr. Been and Mr. Cate are “hybrid witnesses” -- those with personal knowledge of relevant facts who also provide expert opinion testimony based on those facts. See Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011); see also State Farm Page | 2 Mutual Automobile Ins. Co. v. German, 12 So.3d 1286 (Fla. 5th DCA 2009, Torpy, J., concurring). Florida law permits the use of “hybrid witnesses” at trial, even if they have a financial interest in the outcome of the case. Contrary to Mrs. Taylor’s claim in her motion, Florida courts have addressed this issue. This was the upshot of Katzman, where the Fourth DCA affirmed a trial court’s order permitting limited financial bias discovery of a testifying physician who had agreed to treat the plaintiffs/patients under a letter of protection (LOP). Ultimately, alleged financial bias goes to the weight and not admissibility of “hybrid witness” testimony, and Mrs. Taylor is free to cross-examine Mr. Been and Mr. Cate on any alleged financial bias. See German (recognizing that a hybrid witness “may be questioned at trial concerning any bias he or she might have for or against a party…”). MRS. TAYLOR’S MOTION TO STRIKE The best Mrs. Taylor could muster to support the proposition that financial bias precludes Mr. Been and Mr. Cate from testifying at trial -- which conveniently would result in her spurious damage theories going largely unrebutted -- is a non-binding order from Perfect 10, Inc. v. Giganews -- a federal copyright infringement case from California where a district judge precluded the owner of an adult website (Dr. Zada) from testifying at trial about copyright law and technical matters. Dr. Zada was not excluded as an expert just because he had a financial interest in the case (all parties do). Rather, he was excluded first and foremost because he was wholly unqualified to testify about the scientific and legal matters about which he claimed to be an expert. Indeed, the District Court’s description of Dr. Zada’s specious expertise could just as easily describe Ms. Taylor’s claimed expertise in land development and valuation, zoning, and criminal law: “Dr. Zada has never testified as an expert witness in any litigation before, has never published any books or peer-reviewed articles on any relevant topics at issue in this action…has no relevant academic training…and has virtually no understanding of Usenet technologies Page | 3 or Defendants’ server-side operations…However, in light of his experience owning and operating Perfect 10, Dr. Zada considers himself an expert on ‘the issuance of DCMA notices,’ the ‘response of service providers to those notices,’ Perfect 10’s catalogue of adult images, the content found on Giganews’ servers, the ‘damage that has been caused to the industry by piracy,’ how ‘from a user standpoint, the Usenet operates’ and ‘how other pay sites operate, how other infringers operate,’ and ‘[t]he level of infringement…on the Usenet.’ To begin with, the Court shares Judge Collins’ skepticism that Dr. Zada qualifies as an expert for the purposes of this litigation at all. (See Dkt. No. 180, p. 5 (raising ‘serious questions’ about Dr. Zada’s prior testimony in declaration which rose to the level of ‘expert testimony that Zada is not qualified to give’). To the extent Dr. Zada’s testimony on Defendants’ ‘repeat infringer’ policies and the amount of infringement found on Defendants’ Usenet servers amounts to anything more than raw speculation, it is only because he is testifying from his own observations as a lay witness. Dr. Zada’s ‘expert’ opinions arising from those observations appear to be little more than an attempt to add the gloss of expert opinion to what are, at their core, factual questions that the jury must decide on their own. The chance that excluding Dr. Zada’s expert opinions will deny Perfect 10 access to an expert witness is infinitesimal because Mr. Zada almost certainly lacks the specialized knowledge to qualify as an expert…” The District Court excluded Dr. Zada’s testimony “[u]nder all the circumstances of this case.” Moreover, the District Court expressly acknowledged authority which recognizes that “the fact that a party testifying as his own expert is not disinterested does not distinguish him from any other party who testifies in his own behalf; and hired experts, who generally are highly compensated-and by the party on whose behalf they are testifying-are not notably disinterested.” Id. (quoting Tagatz v. Marquette University, 861 F.2d 1040, 1042 (7th Cir. 1988)). Adoption of Co-Defendant(s)’ Response(s). The response(s) filed by any other co- defendant(s) to the instant motion are incorporated by reference and adopted herein. WHEREFORE, defendants STEPHEN BEEN and HENRY VASSA CATE III move this Court for an Order denying plaintiff CYNTHIA TAYLOR’s motion to strike them from defendant Page | 4 EDWARD SEGARS’ expert witness list, and for such other and further relief the Court deems just and proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that on March 29, 2024, a true and correct copy of the foregoing has been electronically filed with the Clerk of Court and has been served pursuant to Florida Rule of Judicial Administration 2.516, via the Florida Courts E-Filing Portal System. THE FREVOLA LAW FIRM, PLLC 900 SE 3 Avenue Suite 202 Fort Lauderdale, FL 33316 Direct: (407) 601-4755 Office: (407) 723-0256 By: /s/ ALBERT L. FREVOLA, JR. ALBERT L. FREVOLA, JR. Florida Bar No. 857416 Email: Al@frevolalaw.com E-Service: service@frevolalaw.com al@frevolalaw.com cricket@frevolalaw.com And, IVAN JOHN KOPAS, P.A. 530 38th Street West Palm Beach, FL 33407 Telephone: (954) 614-0611 Facsimile: (954) 206-2266 By: /s/ IVAN JOHN KOPAS IVAN JOHN KOPAS Florida Bar No. 503711 Email: kopaspa@gmail.com Page | 5