                                                             [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS
                                                                   FILED
                        FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                          ________________________ ELEVENTH CIRCUIT
                                                               OCTOBER 3, 2005
                           Nos. 05-10844 & 05-10846           THOMAS K. KAHN
                            Non-Argument Calendar                 CLERK
                          ________________________

                   D. C. Docket No. 01-00258-CV-FTM-29SPC

NANCY A. KUZMA,
TIMOTHY A. KUZMA,

                                                          Plaintiffs-Counter-
                                                          Defendants-Appellants,

                                        versus

CITY OF FORT MYERS,
a Florida municipal corporation,

                                                          Defendant-Counter-
                                                          Claimant-Appellee.

                          ________________________

                   Appeals from the United States District Court
                        for the Middle District of Florida
                         _________________________

                                   (October 3, 2005)

Before CARNES, MARCUS and WILSON, Circuit Judges.


PER CURIAM:
      This case arises out of the seizure and demolition of the Edisonian Court

Motel (“Motel”) by the City of Ft. Myers (“City”). Nancy and Timothy Kuzma,

the owners and operators of the Motel, filed a multi-suit claim against the City,

alleging procedural due process and unreasonable seizure violations under 42

U.S.C. § 1983, and a state-law inverse condemnation claim based on the Motel’s

demolition. This is the second time this case has been before this Court. When we

last considered this case, we remanded the case back to the district court.

      There were three factual issues to be resolved on remand: 1) whether the

Kuzmas had equity in the Motel at the time the City closed it; 2) whether the City’s

closure of the Motel caused the Kuzmas to lose their equity, if any; and 3) the

amount of just compensation for the demolished Motel buildings, if the trial court

were to find that the City’s demolition amounted to a taking.

      At the close of the evidence, the district court instructed the jury that the

Kuzmas had brought two claims: first, that they suffered economic damages in the

form of lost equity because the City unreasonably closed the Motel; and second,

that they were entitled to just compensation from the City for the demolition of the

improvements. The jury was instructed to calculate the equity the Kuzmas had in

the Motel property at the time of the closure, by determining the fair market value

of the land and the improvements, less the encumbrances, and to determine



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whether the Kuzmas lost their equity, if any, as a result of the City’s unreasonable

closure of the Motel. The jury was instructed further to determine the amount of

just compensation, as measured by the value of the improvements on the day they

were demolished, to which the Kuzmas would be entitled if the court found that a

taking had occurred.

      The jury found that, as of December 6, 2000, the Kuzmas had $27,000 of

equity. The jury, however, found that City’s closure of the Motel did not cause the

Kuzmas to lose any equity through mortgage foreclosure. In addition, the jury

found that $0 would constitute “full compensation” for the value of the Motel

structures at the time of the Motel’s demolition.

      The Kuzmas present the following issues on appeal: 1) whether the jury’s

verdict was based upon the evidence; 2) whether the Kuzmas were entitled to a

twelve member jury under Florida law; 3) whether Florida law required the

Kuzmas to exhaust administrative remedies before filing inverse condemnation

proceedings against the City; 4) whether the jury instructions were defective; and

5) whether the district court should have admitted certain exhibits into evidence

over the Kuzmas’s objections regarding the exhibits’ relevancy, materiality, and

potential prejudicial effect. For the following reasons, we affirm the district court.

      We find that the jury’s verdict was based upon the evidence. The standard



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for reviewing a denial of a motion for judgment notwithstanding the verdict is the

same as that applied by the trial court. King v. Exxon Co., U.S.A., 618 F.2d 1111,

1116 (5th Cir. 1980). The denial must be upheld unless all of the evidence, viewed

in the light most favorable to the nonmoving party, cannot support the jury’s

verdict. Id.

       Expert testimony provided by both sides indicated that the improvements

could potentially have a zero value or a negative value because the Motel was ten

years past its forty year useful life and because a buyer would likely want to

remove the improvements to put the land to a different use. Mrs. Kuzma’s

statement that, in the two years the property was actively for sale, it only attracted

two written offers, both of which contemplated demolishing the buildings, also

indicated potential zero value. Thus, while the evidence could have potentially

supported a finding that the improvements had value, it also could have supported

the jury’s actual finding that the improvements had zero value.1

       We also find that the Kuzmas’ waived their right to a twelve person jury.


       1
         One of the Kuzmas’s arguments relies on the fact that the jury established a value of
$72,000 for the Motel structures on the verdict form while it simultaneously returned a $0
verdict for the compensation for the improvements. These two findings could have possibly
been inconsistent, although they could have also possibly been consistent because the evidence
supported the jury finding that the value may have deteriorated to $0 from closing to demolition.
Nevertheless, the Kuzamas have stated in their reply brief that they are not raising inconsistency
as grounds for appeal. Furthermore, even if they were, this claim would be barred by their
failure to raise it before the jury was discharged. See Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d
185, 186 (11th Cir. 1996) (per curiam).

                                                4
Because this issue involves a ruling as a matter of law, we will review it de novo.

See Mich. Millers Mut. Ins. Corp v. Benfield, 140 F.3d 915 (11th Cir. 1998). In

Florida, there is a statutory right to have a twelve person jury determine just

compensation in condemnation cases. Fla. Stat. § 73.071(1) (2004). That right,

however, may be validly waived by written or oral stipulation in open court. Div.

of Admin. State of Fla. Dep’t of Transp. v. Davis, 511 So. 2d 686, 688 (Fla. 4th

DCA 1987). At the pretrial conference prior to the first trial, which included the

inverse condemnation claim, the Kuzmas expressly stipulated to a jury of seven.

The Kuzmas’s only demanded a jury of twelve on the first day of trial, after the

court had called a venire only large enough to produce a seven-person jury. The

district court properly rejected the demand because the Kuzmas had waived this

right.

         We also find that we do not need to rule on the validity of the Kuzmas’

inverse condemnation claim because we agree with the district court that this claim

is moot because the jury found the motel improvements did not have any value as

of the date of demolition.

         Finally, we find that the district court’s jury instructions and evidentiary

rulings were in fact proper, and that any potential error in the jury instructions is

moot. We review these rulings and instructions under an abuse of discretion



                                              5
standard. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1339-

40 (11th Cir. 2003); Eskra v. Prvident Life and Accident Ins. Co., 125 F.3d 1406,

1415 (11th Cir. 1997). If the jury instructions do not accurately reflect the law, we

review them under a de novo standard. Eskra, 125 F.3d at 1415.

      We find that the district court’s jury instructions accurately stated for the

jury why the Kuzmas were seeking damages. The jury instructions specifically

stated that a prior proceeding had determined that the City had unreasonably closed

the Motel. In addition, the jury instruction on causation accurately reflects the law

with respect to the element of causation in § 1983 cases, which requires that “[f]or

damages to be proximately caused by a constitutional tort, a plaintiff must show

that, except for that constitutional tort, such injuries and damages would not have

occurred and further that such injuries and damages were the reasonably

foreseeable consequences of the tortious acts or omissions in issue.” Jackson v.

Sauls, 206 F.3d 1156, 1168 (11th Cir. 2000).

      We do note, without deciding, that the jury instruction stating that the jury

should determine equity “at or near” the time of the Motel’s closure, rather than at

the time of its demolition, may have been erroneous. We believe that it could have

been foreseeable that the value of the Kuzmas’s equity could have increased or

decreased from the time the Motel was closed to the time the Kuzmas lost their



                                           6
equity when the Motel was demolished. Nevertheless, we do not need to address

this issue further because the jury determined that the closing of the Motel did not

cause the mortgage foreclosure, thus making any equity determination moot.

         Turning to the evidentiary issues, the district court properly admitted

Exhibits 8, the Standard Unsafe Building Code, and 20, the City of Fort Myers

Notice of Unsafe Certificate. The Kuzmas never objected to these exhibits on the

exhibit list, and the Case Management and Scheduling Order required that all

objections to exhibits appear on the exhibit lists or be waived. Therefore, the

district court properly determined that the Kuzmas waived any objections to these

exhibits. See Iervolino v. Delta Air Lines, Inc., 796 F.2d 1408, 1419-20 (11th Cir.

1986).

         The district court also properly found that the Kuzmas waived their

objections to the admission of Exhibits 21 and 22, both of which were

correspondence between the Kuzmas’ attorney and the Assistant City Attorney

regarding the demolition. The Kuzmas withdrew their pretrial objections to these

exhibits at trial, and consented to their admission, which waived their right to

object on appeal under Fed. R. Evid. 103(a).

         The district court also properly admitted Exhibit 18. This exhibit was a

letter from Fort Myers Fire Department Chief Randolph Jordan to the Assistant



                                             7
City Attorney which described a meeting with the Kuzmas at which the Kuzmas

indicated their willingness to have the Fire Department burn the motel as a training

exercise. Such a letter is probative of the Motel’s value, which was directly at

issue in this case.

       The district court’s admission of Exhibits 23-32 and Exhibit 52 was also

proper. These exhibits were the tax returns for Kuzma Properties, Inc. and the

Kuzmas individually, for the years 1996 through 2000. These exhibits were

relevant to the issue of whether or not the closure of the Motel or the Kuzmas

independently dire financial situation caused the foreclosure. These exhibits thus

had considerable probative value, were not unfairly prejudicial, and were properly

admitted.

       For similar reasons, the district court properly admitted Exhibit 33, a letter

that Mrs. Kuzma wrote to the then-mayor of Fort Myers, Bruce Grady, seeking his

assistance in getting a traffic light installed at the intersection where the Motel was

located. The letter described the decline of business at the motel, the increase in

violent crime in the area surrounding the Motel, the pledge of equity in the Motel

property to finance new business in Cape Coral, the Kuzmas’s inability to keep up

with their bills, and their desire to destroy the Motel and get their equity out.

Because this letter was probative as to the value of the Motel and the land, as well



                                            8
as to what might have caused the foreclosure (i.e., the closure of the Motel or the

Kuzmas’ independent financial problems), the district court properly admitted it,

and it did not unfairly prejudice the Kuzmas.

      Finally, the Kuzmas object to the admission of Exhibit 14, the Notice of

Unsafe Building, but the district court did not in fact admit this exhibit. Therefore,

we do not need to rule on this issue.

Therefore, we AFFIRM.

AFFIRMED.




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