Escambia Cnty. v. Stanberry, 864 So. 2d 575 (Fla. 1st DCA 2004).
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Escambia Cnty. v. Stanberry, 864 So. 2d 575 (Fla. 1st DCA 2004). Book View Copy Cite
ESCAMBIA COUNTY, Florida, Appellant/Cross-Appellee
v.
Earnest STANBERRY, Jr., Appellee/Cross-Appellant
Nos. 1D02-4558, 1D02-4559.
District Court of Appeal of Florida, First District.
Feb 2, 2004.
864 So. 2d 575
Charles V. Peppier, Escambia County Attorney’s Office, Pensacola, for Appellant., Lisa S. Minshew, Pensacola, for Appel-lee.
Barfield, Benton, Nortwick.
Published

ON MOTION FOR CLARIFICATION

BARFIELD, J.

We withdraw our opinion filed on November 19, 2003, and substitute the following opinion. We reject the argument of the cross-appellant regarding the applicability of section 768.28, Florida Statutes, to the claims of nuisance and trespass. We find no reversible error except for the trial court’s instruction to the jury regarding real property damages, which we find to have been an incorrect statement of the law which led the jury to a finding that was not supported by the evidence. We therefore REVERSE the $225,000.00 award of damages for “cost of repair or replacement of the damaged property,” and REMAND the case to the trial court for a new trial on this element of damages. In all other respects, the final judgment awarding damages is AFFIRMED.

The award of attorney fees and costs based on section 768.79, Florida Statutes, is VACATED and the trial court is ordered to determine, after a final judgment has been rendered on remand, whether the appellee is entitled to attorney fees.

BENTON, and VAN NORTWICK, JJ., Concur.