SABAL TRAIL TRANSMISSION LLC v. REAL ESTATE et al

Filing 157

ORDER granting in part and denying in part Motion to Exclude testimony of Jeanne Easom in Jones (120 in 4:16-cv-97); granting Motion to Exclude testimony of Jeanne Easom in Lasseter to the extent set forth in th e Order (57 in 4:16-cv-102); granting Motion to Exclude testimony of Thomas Rowell in Isaacs (47 in 4:16-cv-104) and GBA Associates (48 in 4:16-cv-107); granting motions in limine to the extent set forth in the Order (124 in 4:16-cv-97, 60 in 4:16-cv-102, 59 in 4:16-cv-104, 56 in 4:16-cv-107, 60 in 4:16-cv-113). Ordered by US DISTRICT JUDGE CLAY D LAND on 05/21/2018. (CCL)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
SABAL TRAIL TRANSMISSION, LLC,
Plaintiff,

*
*

vs.

*

REAL ESTATE, et al.,

*

Defendants.

CASE NO.
4:16-cv-097
4:16-cv-102
4:16-cv-104
4:16-cv-107
4:16-cv-113

(Jones)
(Lasseter)
(Isaacs)
(GBA Associates)
(Bell)

*
O R D E R

These five Natural Gas Act condemnation actions are ready for
trial on the issue of just compensation.

Presently pending before

the Court are the motions in limine and motions to exclude filed by
Plaintiff

Sabal

Trail

Transmission,

LLC.

Resolution

of

these

motions requires an understanding of the proper measure of just
compensation, so that is where the Court will begin.

I.

Measure of Just Compensation
The parties do not agree on whether federal or state law

governs the measure of just compensation.

Defendants assert,

without citing any authority, that Georgia law applies to the
issue of just compensation.

Sabal Trail contends that just

compensation is a matter of federal law, but it did not cite any
binding authority on this issue.1

1

In support of its argument, Sabal Trail cites United States v.
Easement & Right-of-way Over 6.09 Acres of Land, More or Less,
Madison Cty., Ala., 140 F. Supp. 3d 1218, 1232 (N.D. Ala. 2015).
that case, the United States filed condemnation actions for the use

An
in
In
of

In this Circuit, “the law of the state where the condemned
property is located is to be adopted as the appropriate federal
rule for determining the measure of compensation when a licensee
exercises the power of eminent domain pursuant to Section 21 of
the Federal Power Act.”

Ga. Power Co. v. Sanders, 617 F.2d

1112, 1124 (5th Cir. 1980) (en banc).2

Under the rationale of

Sanders, the Court finds that Georgia law should be adopted as
the federal rule to determine the measure of just compensation
in this Natural Gas Act condemnation proceeding.

See

Sabal

Trail Transmission, LLC v. Real Estate, No. 1:16-CV-063-MW-GRJ,
2017 WL 2783995, at *2-*6 (N.D. Fla. June 27, 2017) (providing a
detailed

analysis

substantive

law

and

concluding,

governs

the

under

compensation

Sanders,
measure

that
in

“state

eminent-

domain condemnation proceedings” under the Natural Gas Act).
Under Georgia law, just compensation means “the fair market
value of the property at the time of the taking.”

Dep’t of

the Tennessee Valley Authority.
The case does not establish that
federal law governs in an action where a private company condemns an
easement pursuant to authority granted by the Natural Gas Act. Sabal
Trail also cites Columbia Gas Transmission, LLC v. 252.071 Acres, More
or Less, in Baltimore Cty., Md., No. ELH-15-3462, 2016 WL 7167979, at
*3 (D. Md. Dec. 8, 2016). In that case, an out-of-circuit magistrate
judge concluded that federal law applied because her circuit did not
apply state law to determinations of just compensation in Natural Gas
Act proceedings.
It is not persuasive authority, particularly in
light of Georgia Power Co. v. Sanders, 617 F.2d 1112, 1119 (5th Cir.
1980) (en banc).
2
In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981)
(en banc), the Eleventh Circuit adopted as binding precedent all
decisions of the former Fifth Circuit handed down prior to the close
of business on September 30, 1981.

2

Transp. v. Mendel, 517 S.E.2d 365, 367 (Ga. Ct. App. 1999).

If

“there is a partial taking of property by condemnation, just and
adequate compensation is the sum of the market value of the
property that is taken and the consequential damage, if any, to
the property that remains, both measured as of the time of the
taking.”

Gwinnett Cty. v. Ascot Inv. Co., 726 S.E.2d 130, 132

(Ga. Ct. App. 2012).

“The consequential damage to the property

that remains is the difference between its fair market value
before the taking and its fair market value after the taking.”
Id.
“Just compensation must be based on the value of the rights
taken, without regard to the owner’s personal relationship to
the property taken.”

Mendel, 517 S.E.2d at 367.

In general,

the cost to cure damage to property caused by the taking “may be
considered

a

factor

in

establishing

the

reduced

fair

value of the remaining property after the taking.”
Dep’t

of

Transp.,

671

S.E.2d

275,

278

(Ga.

Ct.

market

Steele v.
App.

2008)

(quoting Dep’t of Transp. v. Ogburn Hardware & Supply, Inc., 614
S.E.2d 108, 110 (Ga. Ct. App. 2005)).

Although cost to cure

“may be an important factor used by an appraiser in determining
the value of the remainder [of property after a partial taking],
it is not recoverable as a separate element of damage.”

3

Id.

II.

The Burden of Proof
The parties also do not agree on which side has the burden

of proof.

Defendants argue that under Georgia law, Sabal Trail

as the condemnor has the burden to prove just compensation.
Sabal Trail asserts that under federal law, the landowners have
the burden of proof.
The federal cases generally state that in condemnation cases,
the landowner has the burden to prove fair market value of the land
taken, including severance damages (damages to the remaining land
in a partial taking).

See, e.g., U. S. ex rel. Tenn. Valley Auth.

v. Powelson, 319 U.S. 266, 273 (1943) (“The burden of establishing
the

value

of

the

lands

sought

to

be

condemned

was

on

[the

landowner].”); United States v. Smith, 355 F.2d 807, 809 (5th Cir.
1966) (stating that the land owners have the “burden of proving”
fair market value of the land taken and severance damages).

Both

Powelson and Smith were concerned chiefly with whether some of the
landowners’ evidence should have been excluded in determining the
fair

market

remanded

for

value

of

further

the

property

proceedings

taken,
without

and
that

both

cases

were

evidence.

The

implication of these cases is clear: if the landowner contends that
he

is

entitled

Government’s

to

a

evidence

larger

just

shows,

the

compensation
landowner

must

award

than

present

the

valid

evidence to prove that amount.
Georgia courts have concluded that since the condemnor must
pay before taking private property for public use, the condemnor

4

has the burden of proving fair market value of the property taken.
Glover v. Dep't of Transp., 304 S.E.2d 567, 568 (Ga. Ct. 1983).3
But

that

burden

is

evidence of value.

met
Id.

“as

soon

as”

the

condemnor

introduces

And, if “the condemnee contends that the

value or the amount of the damage is greater than is shown by the
condemnor’s proof and seeks a verdict for some greater amount he
must introduce evidence that will itself or together with other
evidence in the case support the verdict, else if a verdict is
returned

for

condemnor’s

an

amount

evidence

it

greater
will

than

fall

is

authorized

because

under

unsupported.”

the
Id.

(quoting Lewis v. State Highway Dep’t, 140 S.E.2d 109, 110 (Ga. Ct.
App. 1964)).

Nonetheless, the Georgia courts have stated that it

would be error to instruct a jury that the condemnee has the burden
to prove fair market value.

Id.; accord Gen. Lighting Distrib.,

Inc. v. Cobb Cty., 538 S.E.2d 807, 809 (Ga. Ct. App. 2000) (“In the
usual condemnation case, where the measure of damages is the fair
market value of the property, the condemnor bears the burden of
proving that value, and the burden of proof does not shift to the
condemnee even if the condemnee disputes the figures offered by the
condemnor.”).
The Court finds no actual conflict between the federal rule
and the Georgia rule.

Under both federal law and Georgia law, a

landowner who contends that the just compensation award should be
3

In contrast, if the landowner seeks business losses, the landowner
has the burden of proof on that issue.
Gen. Lighting Distrib.,
Inc. v. Cobb Cty., 538 S.E.2d 807, 808 (Ga. Ct. App. 2000).

5

greater than what the condemnor’s evidence shows has the burden to
present

evidence

Failure

to

do

unsupported.

supporting

so
So,

renders
even

the
any

larger

just

compensation

excess

jury

verdict

the

Georgia

though

award.

invalid

courts

deny

as

that

landowners have a burden of proof on fair market value, landowners
actually do have the burden to show fair market value in excess of
the condemnor’s valuation.

The Court therefore plans to instruct

the jury that Defendants have the burden to prove just compensation
in excess of Sabal Trail’s valuation evidence.

III. Common Motion in Limine
Sabal Trail filed nearly identical motions in limine on five
issues in these five actions, and Defendants filed nearly identical
responses.

The Court will address all of the common motions in

limine together.

A.

Amounts Sabal Trail Paid Other Landowners

Sabal Trail moved to exclude evidence of how much it paid
other landowners for easements along the pipeline’s route.
motion is granted.

This

“Fair market value is defined as the price

that a seller who desires but is not required to sell and a
buyer who desires but is not required to buy would agree is a
fair

price

after

due

consideration

of

all

the

elements

reasonably affecting value.” Thornton v. Dep’t of Transp., 620
S.E.2d 621, 624 (Ga. Ct. App. 2005) (quoting Dep’t of Transp. v.
Old

Nat’l

Inn,

345

S.E.2d

853,

6

856

(Ga.

Ct.

App.

1986)).

Defendants argue that evidence of the amounts Sabal Trail paid
other landowners before resorting to condemnation proceedings is
the best evidence of the value of the easements.

Defendants did

not cite any condemnation cases adopting this view.

The Court

is not convinced that sales made under threat of condemnation
proceedings are voluntary or that they accurately reflect the
fair market value of the property.

See, e.g., U.S. ex rel.

Tenn. Valley Auth. v. Reynolds, 115 F.2d 294, 296 (5th Cir.
1940)

(“We

think

it

too

clear

to

require

citation

of

authorities, that neither the award made to [the landowner’s
sister] nor the amounts paid by the government for other tracts
acquired by it for the project, was admissible in evidence in
this proceeding[.]”).

Evidence of the amounts Sabal Trail paid

other landowners is excluded.
B.

Amounts Sabal Trail Offered to Defendants

Sabal Trail moved to exclude evidence of pre-suit offers to
Defendants.
initiated

This

these

motion

eminent

is

granted.

domain

actions,

purchase the easements from Defendants.

Before
it

Sabal

made

Trail

offers

to

Several courts have

concluded that such offers are offers of compromise that must be
excluded under Federal Rule of Evidence 408.

Defendants agree

that they should not be permitted to introduce these offers to
prove or disprove the validity or amount of a disputed claim.
They do ask that the evidence be allowed if it is introduced for

7

another purpose, as permitted under Federal Rule of Evidence
408(b).

If any Defendant wishes to introduce evidence regarding

the pre-suit offers from Sabal Trail, the Defendant should first
raise the issue to the Court outside the presence of the jury.
C.

Evidence of Alleged Pipeline Dangers

Sabal Trail anticipates that Defendants will try to testify
that they are afraid the pipeline may be dangerous, and Sabal
Trail moved to exclude this testimony.

This motion is granted.

Some courts do permit lay witnesses to provide evidence on how
fear in the marketplace affects the value of property.

See,

e.g., Ryan v. Kan. Power & Light Co., 815 P.2d 528, 534 (Kan.
1991).
Corp.,

But see Dixie Textile Waste Co. v. Oglethorpe Power
447

exclusion

S.E.2d
of

328,

testimony

330

(Ga.

regarding

Ct.

App.

general,

1994)
public

(affirming
fear

of

electric power lines and their impact on property values because
it was speculative).

Even under Defendants’ cases, a witness

cannot use his own personal fear as a basis for testifying about
fear in the marketplace.

See Ryan, 815 P.2d at 534 (“[N]o

witness . . . may use his or her personal fear as a basis for
testifying about fear in the marketplace.”).

The Court thus

excludes Defendants’ testimony regarding their subjective fears
about the pipeline.

8

D.

Cost of the Pipeline Project

Sabal Trail moved to exclude evidence regarding the cost of
the pipeline project.

This motion is granted because the cost

of the pipeline project is not relevant to the matter that the
jury

must

decide:

the

measure

of

just

easements on Defendants’ property.

compensation

for

the

Defendants argue that the

cost of the project is important to show that Sabal Trail’s
pipeline is not a government-funded project.
not

be

prohibited

from

pointing

out

that

Defendants shall
Sabal

Trail

is

a

private company, but they shall not be permitted to introduce
the cost of the project.
E.

Other Litigation between Sabal Trail and Defendants

Sabal Trail moved to exclude evidence of other litigation
between it and Defendants.

This motion is granted.

None of the

prior litigation is relevant to the issue that the jury must
decide:

just

compensation

in

these

condemnation

actions.

Evidence of other litigation is excluded.
IV.

Motions to Exclude in the Jones Action (4:16-cv-97)
The

Jones

action

(4:16-cv-97)

concerns

two

parcels

of

property owned by Sandra G. Yarbrough Jones: the “Farm Property”
and the “House Property.”

The Farm Property is approximately

140 acres and includes about seventy-four acres of cultivated
cropland.

Sabal Trail’s permanent easement on the Farm Property

is 2.64 acres, and the temporary easement is 3.84 acres.

9

The

House Property is the site of Jones’s home and is approximately
twenty-one acres.

Sabal Trail’s permanent easement on the House

Property is .66 acres, and the temporary easement is .63 acres.
Sabal

Trail

moved

evidence at trial.
A.

to

prevent

from

introducing

certain

The Court addresses each issue in turn.

Loss of Future Farm Income (ECF No. 124 in 4:16-cv-97)

Jones

intends

to

introduce

losses to J&M Produce, LLC.
evidence.

Jones

evidence

of

anticipated

crop

Sabal Trail moved to exclude this

The motion is granted.

Between 1986 and 2016, Jones’s cousin Jimmy Dykes rented
approximately seventy-four acres of the Farm Property and grew
various crops, including cotton, peanuts, tobacco, and corn.

In

2017, however, Jones did not lease the Farm Property to Dykes or
to anyone else.

Jones asserts that J&M Produce planned to grow

vegetables on the Farm Property starting in 2017 but was delayed
in converting the fields from cotton fields to produce fields
because of Sabal Trail’s pipeline project.

Jones contends that

J&M Produce will not be able to begin the vegetable farming
operation

until

2020

due

to

the

pipeline

project,

and

she

believes that there may be crop losses due to the easements once
the vegetable farming operation begins.
The

managing

partner

of

J&M

Produce

estimates

that

J&M

Produce will lose about $5 million in income due to the pipeline
project: $739,206 per season in total crop loss for two broccoli

10

growing seasons per year until Sabal Trail’s temporary workspace
is released in September 2019 and $1,087,889 in partial crop
loss

for

the

portion

of

the

broccoli

crop

grown

over

the

easement, assuming a 28% crop loss for the next thirty years.
Jones argues that she can recover business losses caused by
the taking and that she should be permitted to introduce the
estimate of anticipated crop losses for the vegetable farming
operation

for

the

next

thirty

years.

Under

Georgia

law,

a

landowner may recover business losses only if there is a “total
destruction” of an established business.

Dep’t of Transp. v.

Dixie Highway Bottle Shop, Inc., 265 S.E.2d 10, 10 (Ga. 1980)
(per curiam).

If the business “belongs to a separate lessee,

the lessee may recover for business losses as an element of
compensation separate from the value of the land whether the
destruction of his business is total or merely partial, provided
only that the loss is not remote or speculative.”

Id.; accord

Toler v. Ga. Dep’t of Transp., 761 S.E.2d 550, 553 (Ga. Ct. App.
2014).

Either

way,

a

condemnee

cannot

“recover

separate

business loss damages for projected profits from an unexecuted
business plan, even if the plan is well-developed.”

Ga. Power

Co. v. Jones, 626 S.E.2d 554, 557 (Ga. Ct. App. 2006).
Here, there was not a total destruction of any established
business on the Farm Property, so Jones cannot recover business
losses under Georgia law.

J&M Produce has not asserted any

11

interest

in

the

business

losses

property,
to

an

and

it

established

has

not

business,

demonstrated
so

cannot recover business losses under Georgia law.

J&M

any

Produce

For these

reasons, Jones shall not be permitted to recover business losses
and shall not be permitted to introduce the crop loss estimate
prepared by the managing partner of J&M Produce.
Jones may still introduce evidence that the Farm Property
was used as farmland in the past.

Jones’s expert may consider

that fact in determining the highest and best use of the Farm
Property and in rendering her opinion on the fair market value
of the easement.

But Jones shall not be permitted to rely on

the anticipated future lost profit evidence, which is for a
vegetable farming operation that has not even started yet, to
establish fair market value of the Farm Property.

The Court

notes that Jones’s expert, Jeanne Easom, does not appear to have
relied on the crop loss estimate in reaching her conclusion that
the total compensation for the Farm Property should be $81,000.
B.

Future Farm Road Maintenance Costs (ECF No. 124 in
4:16-cv-97)

Jones seeks damages for possible future costs associated
with maintaining a farm road that crosses Sabal Trail’s easement
on the Farm Property.

Jones testified that she might at some

point need to get heavy equipment across Sabal Trail’s easement
to harvest timber or build a cabin.

12

She further testified that

the existing access road will have to be modified to enable
heavy equipment to cross the easement.
modifications
potential

might

be

necessary

modifications

might

Jones does not know what

or

cost,

how
but

much
she

any

of

seeks

the

$800,000

because she “figured it was worth 10,000 a year” for the next
eighty years.
4:16-cv-97.

Jones Dep. 124:12-14, 125:14-23, ECF No. 123 in
Half of that figure is based on “stress and not

being able to use the road” over the next eighty years.
125:21-126:4.
possibly

Id. at

Jones’s off-the-cuff estimate of the cost for

doing

some

undetermined

road

maintenance

at

some

unknown point in the future is not based on any concrete facts.
It is purely speculative and shall not be admitted.
The jury shall, of course, be permitted to consider nonspeculative

evidence

about

ability to farm the land.
non-speculative

evidence

how

the

easement

affects

Jones’s

And, if Jones’s appraiser relied on
regarding

the

cost

to

cure

damage

caused by the taking as a factor in determining the value of the
remainder

of

the

Farm

Property,

that

evidence

shall

be

permitted.
C.

Cost of Soil Replacement (ECF No. 124 in 4:16-cv-97)

Jones
replacing

also
twelve

seeks

damages

inches

of

for

the

topsoil

cost

from

of

the

removing

and

permanent

and

temporary easements on the Farm Property; adding fertilizer to
recondition

the

soil;

and

loosening

13

soil

that

was

allegedly

compacted by Sabal Trail’s equipment.

Jones contends that the

cost to cure is approximately $400,000.

Sabal Trail moved to

exclude this evidence of the cost to cure the topsoil on the
Farm Property.
may

not

This motion is granted to the extent that Jones

recover

the

cost

to

cure

as

a

separate

element

of

damages.
As discussed above, the cost to cure damage to property
caused by the taking “may be considered a factor in establishing
the reduced fair market value of the remaining property after
the

taking.”

Hardware,

Steele,

614

S.E.2d

671

at

S.E.2d

110).

at

Thus,

278

(quoting

evidence

of

Ogburn
how

the

pipeline project affected the soil and Jones’s ability to farm
the

Farm

actual

Property,

cost

of

including

necessary

non-speculative

soil

remediation,

evidence
may

because it is relevant to the value of the land.
cost

to

cure

“is

not

recoverable

as

a

separate

be

of

the

admitted

But because
element

of

damage,” id., the jury will be instructed that it may not apply
the cost of cure as the measure of consequential damages.

See

Dep’t of Transp. v. Morris, 588 S.E.2d 773, 776 (Ga. Ct. App.
2003) (reversing trial court based on jury charge that “tended
to mislead the jury into applying cost of cure as the measure of
consequential damages”).

14

D.

Cost of Stump Removal (ECF No. 124 in 4:16-cv-97)

Jones

seeks

damages

associated

with

removing

stumps

of

trees that were cleared from the easements on the House Property
and for regrading that part of the land.

Jones got an estimate

for that work on June 22, 2016, before the pipeline was built.
Sabal Trail moved to exclude this estimate because Jones admits
that Sabal Trail did remove at least some of the stumps and that
the estimate “probably needs to be reevaluated.”
222:23-25.

Accordingly,

the

June

22,

2016

Jones Dep.

stump

removal

estimate is excluded.
To the extent that Jones seeks to introduce evidence of
stump removal and grading issues
Sabal

Trail

remaining

did

tree

not

fix,

stumps

she

and

on the House Property

may

grading

do

so.
issues,

Evidence

of

including

that
any
non-

speculative evidence of the actual cost of stump removal and
regrading on the House Property, is relevant to the value of the
land.

But Jones may not recover the cost to cure as a separate

element of damages, so the jury will be instructed that it may
not

apply

the

cost

of

cure

as

the

measure

of

consequential

damages.
E.

Value of Removed Trees (ECF No. 124 in 4:16-cv-97)

Jones seeks to recover the replacement cost of the trees
that were removed from her property for the pipeline project.
Her arborist expert calculated how much it would cost to replant

15

the

trees

using

the

largest

available

transplantable

nursery

tree. He then added a multiplier based on trunk diameter to
account

for

the

fact

that

the

nursery

smaller than the removed mature trees.
exclude the arborist’s estimate.

transplants

are

much

Sabal Trail moved to

This motion is granted to the

extent that Jones may not recover the replacement cost of the
trees as a separate element of damages.
Again,

the

proper

measure

of

damages

is

the

difference

between the pre-taking fair market value and the post-taking
fair market value.

So here, the proper measure of damages is

the difference between the fair market value of the property
with the trees and the fair market value of the property without
the trees.4

The value of the trees may affect that calculation,

although it is not determinative.

Furthermore, to the extent

that Jones is permitted to replant some of the trees, the value
of the trees based on replacement cost could be relevant because
the cost to cure “may be considered a factor in establishing the
reduced fair market value of the remaining property after the
taking,”

even

though

element of damage.”

it

“is

not

recoverable

Steele, 671 S.E.2d at 278.

as

a

separate

Based on the

present record, it appears that Jones’s appraisal expert did
consider

the

value

of

the

removed

4

trees

as

a

factor

in

Another way to determine just compensation in cases involving trees
is to determine the value of the timber if it were cut down and sold.
Jones is not pursuing this method of determining just compensation.

16

determining the reduced fair market value of the House Property
after

the

taking,

and

the

Court

thus

declines

to

exclude

evidence of the value of the trees.
F.

Possible Future Damage to Camellias (ECF No. 124 in
4:16-cv-97)

Sabal Trail moved to exclude evidence of possible future
damage to Jones’s camellia bushes.

This motion is granted to

the extent set forth below.
Jones is an avid camellia grower.

According to Jones, the

trees Sabal Trail removed for the pipeline project provided her
camellias with protection from wind and sun.

Jones is concerned

that half of her camellia bushes might someday be damaged due to
Sabal Trail’s removal of trees.

Jones had a past president of

the American Camellia Society appraise the camellias.

Jones

testified that she wants to recover half of the appraised value
to

account

for

potential

future

damage.

Jones’s

purely

speculative testimony will not be admitted.
If there is evidence that any of Jones’s camellia bushes
were actually damaged because of the pipeline project, then that
evidence may be relevant on the difference between the fair
market value of the property with those camellia bushes and the
fair market value of the property without.
Dep’t

of

(“Although

Transp.,
evidence

620
of

S.E.2d
the

621,
value

17

See Thornton v.

624

(Ga.

Ct.

App.

of

improvements

2005)

may

be

admissible as it pertains to the issue of the value of the
property as improved, such evidence does not demand a finding
that the market value of the property is equal to or more than
the cost of improvements.” (footnote omitted)).
ruling

would

not

preclude

an

expert

from

And, today’s

testifying

about

probable future damage to the camellias based on the current
growing conditions if there is a reasonable likelihood that such
damage will occur.
G.
Sabal

Landscaping Costs (ECF No. 124 in 4:16-cv-97)
Trail

moved

to

exclude

evidence

of

the

cost

of

landscaping projects that Jones wants to undertake on the House
Property because of the easements.

This motion is granted.

First, Jones asserts that she cannot plant new camellia
bushes in her back yard, where the pipeline is, because Sabal
Trail cut down the trees she needed for wind and sun protection.
Therefore, Jones wishes to plant eight mature oak trees in her
front yard to provide shade so that she can plant additional
camellia bushes.

Although the removal of the trees from Jones’s

back yard may have some impact on the value of the property and
the jury may consider non-speculative evidence of that impact,
the cost of planting mature trees on a different part of the
property is not relevant because it is not a recoverable element
of damages in this action.

This evidence is excluded.

18

Second, Jones wants to install sod and an irrigation system
on the permanent easement, and she obtained estimates for the
cost of this project.

This evidence is excluded.

The proper

measure of damage is the difference between the fair market
value of the property as it was before the taking (easement area
with woodlands) and the fair market value of the property after
the taking (easement surface restored with natural vegetation,
at least according to Sabal Trail).

The cost of converting the

previously wooded area into a lawn is not relevant.
H.

Testimony of Jeane Easom (ECF No. 120 in 4:16-cv-97)

Jones retained Jeane Easom, a certified real estate appraiser,
to provide expert testimony on her two properties.

Sabal Trail

does not object to Easom’s testimony about the Farm Property, so
Easom shall be permitted to provide an expert opinion with regard
to the value of the Farm Property.
Sabal
Property.

Trail

objects

to

Easom’s

testimony

about

the

House

First, Sabal Trail objects to Easom’s testimony because

her “before” valuation includes the arborist expert’s replacement
cost of the trees that were removed from Jones’s property for the
pipeline project.

As discussed above, Jones may not recover the

replacement cost of the trees as a separate element of damages,
but her expert may consider the value of the trees as a factor
in

determining

the

reduced

fair

19

market

value

of

the

House

Property after the taking.

This portion of Sabal Trail’s motion

to exclude is denied.
Sabal
“other

Trail

also

damages”

to

objects

the

to

House

Easom’s

Property

testimony

of

regarding

$330,000.

These

damages include the cost of moving Jones’s house, pool, patio,
and porches to another location on her property.

But Jones made

it clear that she does not have any intention of moving her
house or other improvements.
$330,000

“other

valuation.

damages”

Jones Dep. 256:9-13.

cannot

form

the

basis

Thus, the
for

Easom’s

This evidence is excluded.

Given that the Court has excluded some of the evidence Easom
relied on in reaching her valuation opinion, the Court will permit
Easom to amend her report.

The amended report shall be provided to

Sabal Trail by June 11, 2018.

V.

Motion to Exclude in the Lasseter Action (4:16-cv-102)
Defendant W. Lynn Lasseter owns 75.10 acres near Moultrie,

Georgia.
expert,

Sabal
Jeanne

Trail
Easom,

filed
from

a

motion
offering

to

prevent

testimony

Lasseter’s
based

on

Lasseter’s plan to subdivide 34.59 acres of his property and
develop

a

gated

community

because

Easom

did

not

determine

whether the gated community is financially feasible.
Under Georgia law, there must be “at least a reasonable
probability

. . .

that

condemned

property

could

be

used

for

subdivision purposes to authorize a jury to consider subdivision

20

use in determining the value of land; the mere possibility of
such use is not sufficient to authorize the jury to consider
subdivision use in determining the value.”

State Highway Dep’t

v. Thomas, 128 S.E.2d 520, 522–23 (Ga. Ct. App. 1962) (finding
no abuse of discretion when trial judge admitted evidence of a
proposed subdivision, including testimony regarding population
growth

in

the

subdivisions).

area

and

testimony

regarding

other

nearby

“The fact that the property is merely adaptable

to a different use is not in itself a sufficient showing in law
to consider such different use as a basis for compensation; it
must be shown that such use of the property is so reasonably
probable as to have an effect on the present value of the land.”
Dep’t of Transp. v. Patten Seed Co., 660 S.E.2d 30, 32 (Ga. Ct.
App. 2008) (quoting Ga. Transmission Corp. v. Barron, 566 S.E.2d
363, 365 (Ga. Ct. App. 2002)).
In Patten Seed, the landowner sought compensation based on
the potential commercial use of its land.

There was evidence

that although the property at issue was zoned for agricultural
use, the land had 3,400 feet of frontage on a highway, the
landowner was contacted frequently by developers interested in
purchasing

the

property,

the

highest

and

best

use

of

the

property was as commercial property, the property was located
beside or across from parcels that were zoned commercial, and
county zoning officials believed it was highly likely that the

21

property would be rezoned as commercial.

Id. at 32-33.

Thus,

the jury could consider the potential commercial use of the land
in determining just compensation.

In contrast, in Barron, the

fact that the landowner’s residential property might, at some
point

in

the

future,

be

rezoned

for

commercial

use

was

not

enough to establish a reasonable probability that the property
was best suited for commercial use, particularly in light of
testimony from a county official who stated that any application
to rezone the property to commercial would likely be denied
because of the county’s long-term land use plan.

Barron, 566

S.E.2d at 364-365.
Here, Lasseter provided Easom with an undated plat for a
twelve-lot proposed subdivision on 34.59 acres of his property.
Easom conducted a discounted cash flow analysis to determine the
value of the subdivision lots,5 and she conducted a comparable
sales analysis of the 40.51 acres that were not part of the
proposed

subdivision.

valuation

testimony

Sabal
about

Trail

the

only

proposed

objects

to

Easom’s

subdivision.

No

improvements like roads or utilities have been constructed for
the proposed subdivision.

Easom did not consider subdivision

5

Easom concluded that two of the lots on Lasseter’s plat could not be
sold because they each had an existing South Georgia Natural Gas
Company easement running through the middle of the lot. She conducted
a discounted cash flow analysis to determine the value of the
subdivision without those two lots. Easom also determined that six of
the remaining ten lots would be lost due to Sabal Trail’s easement,
and she conducted a discounted cash flow analysis to determine the
value of the subdivision with only the four remaining lots.

22

development costs in reaching her opinion.
determine

whether

Lasseter’s

And, Easom did not

proposed

subdivision

was

financially feasible.
In

response

to

Sabal

Trail’s

motion

to

exclude

Easom,

Lasseter did not point to any evidence to establish a proper
foundation

for

feasibility

of

Easom’s
the

testimony,

proposed

gated

such

as

evidence

community.

The

of

the

Court

is

unaware of any evidence in the present record suggesting that
there is a reasonable probability that the 34.59 acres could be
used for a subdivision.
consider

subdivision

compensation
regarding

and

the

Without such evidence, the jury cannot
use

thus

in

determining

cannot

potential

consider

gated

Lasseter’s
Easom’s

community.

Given

just

testimony
that

Easom

cannot testify about the potential subdivision use of the 34.59
acres, the Court will permit Easom to amend her report.

The

amended report shall be provided to Sabal Trail by June 11, 2018.

VI.

Motions to Exclude in the Isaacs and GBA Associates Actions
(4:16-cv-104 and 4:16-cv-107)
Sabal Trail filed a motion to exclude Thomas Rowell, the

valuation expert for Defendants Kenneth Gregory Isaacs and GBA
Associates,

LLC.

Sabal

Trail

argues

qualified to give an expert opinion.
that

Rowell’s

opinion

should

be

unreliable.

23

that

Rowell

is

not

Sabal Trail further argues
excluded

as

unhelpful

and

Rowell has been in the real estate business in Colquitt
County

for

University

more
of

than

Georgia

forty
with

years.
a

He

business

graduated

from

administration

the

degree,

emphasis on real estate, and is a licensed real estate broker in
Georgia and five other states.

Rowell is a licensed auctioneer

in Georgia and five other states, and he has served as president
of the board of realtors.

Therefore, even though Rowell is not

a licensed real estate appraiser, the Court concludes that he is
qualified to testify about the value of land in a county where
he has been in the real estate business for forty years.
Turning to his opinion, Rowell provided auction assessment
reports to Isaacs and GBA Associates.

Those reports set forth a

plan for marketing the properties via auction.

Part of each

auction assessment report is a “broker’s price opinion,” which
Rowell describes as “the knowledgeable opinion of a real estate
broker as to what they feel the values may be.”
43:12-14, ECF No. 54 in 4:16-cv-104.

Rowell Dep.

It is a range of values so

that the seller will “have realistic expectations with a full
understanding that [the auctioneer’s] opinion of value does not
make up the market.”

Id. at 45:7-11.

Rowell emphasized that an

auction would produce market value for each property and that
that the broker’s price opinion is not an appraisal of the fair
market value based on accepted appraisal methodologies.

24

Id. at

45:23-46:9, 111:20-21 (“[W]e want to make certain that people do
not interpret these as appraised values.”).
As discussed above, the measure of just compensation in a
partial taking case like this one is the difference between the
property’s “fair market value before the taking and its fair
market value after the taking.”
132.

Rowell’s

auction

Ascot Inv. Co., 726 S.E.2d at

assessment

report

does

not

offer

an

opinion on the fair market value of the easement because it does
not offer an opinion on the fair market value of the property
before Sabal Trail’s taking.

And, Rowell himself stated that

his “broker’s price opinion” is not an appraisal of the “after”
fair market value.
happen

in

an

Rather, it is a range of what could possibly

auction.

opinion is simply that.
we

tell

our

conservative

clients,
in

auction day.”).

these

Rowell

Dep.

45:23-46:2

(“A

broker’s

As a broker going into an auction sale,
this

is

values

our
or

we

opinion,
may

be

we

may

be

very

disappointing

on

Given that Rowell’s testimony does not address

the question that the jury must decide—the fair market value of
the easement—the Court is not persuaded that his testimony will
assist the jury “to understand the evidence or to determine a
fact in issue.”

Fed. R. Evid. 702(a).

testimony is excluded.

25

Therefore, Rowell’s

VII. Motion to Exclude in the Bell Action (4:16-cv-113)
The

Bells’

property

has

been

used

for

farming

timber.

Because of Sabal Trail’s easement, the Bells will no longer be
able to plant trees or harvest timber from certain areas of
their property.

Sabal Trail anticipates that the Bells will

seek to introduce evidence of lost future revenue from the sale
of timber.

According to the Bells’ timber expert, the Bells

will lose $72,270 in future revenue over the next 100 years
because

they

will

not

be

able

to

timber on Sabal Trail’s easements.

replant

trees

and

harvest

Sabal Trail objects to this

evidence.
Under Georgia law, business losses are recoverable as a
separate element of damages in special circumstances that do not
exist here.

A landowner may recover business losses only if

there is a “total destruction” of an established business at the
location.
265

Dep’t of Transp. v. Dixie Highway Bottle Shop, Inc.,

S.E.2d

10,

10

(Ga.

1980)

(per

curiam);

accord

Dep’t

Transp. v. Acree Oil Co., 467 S.E.2d 319, 320 (Ga. 1996).
the

business

recover

for

“belongs
business

to

a

losses

separate
as

an

lessee,
element

the
of

lessee

of
If
may

compensation

separate from the value of the land whether the destruction of
his business is total or merely partial, provided only that the
loss is not remote or speculative.”

Dixie Highway Bottle Shop,

265 S.E.2d at 10; accord Acree Oil, 467 S.E.2d at 320; Toler v.

26

Georgia Dep’t of Transp., 761 S.E.2d 550, 553 (Ga. Ct. App.
2014).

Either way, the property must be “unique” and the loss

may not be remote or speculative.

Here, there was no total

destruction of any established business, and this action does
not involve the taking of a leasehold interest.

Thus, the Bells

cannot recover business losses under Georgia law.
The Bells argue that even if they cannot seek business
losses

as

a

separate

element

of

damages,

they

should

be

permitted to introduce evidence of the anticipated future losses
as evidence of the fair market value of the easement.

The fact

that the Bells’ property has been used to grow trees for timber
harvest in the past is
market value.
introducing
property.

certainly

relevant to the property’s

Therefore, the Bells shall not be prohibited from
evidence

of

past

timber

production

on

their

But the anticipated future lost profit evidence the

Bells wish to introduce, which is for potential timber harvests
over

the

next

100

years,

is

too

speculative

to

be

used

in

determining the fair market value of the Bells’ property and
shall not be admitted.

The Court notes that the Bells’ expert,

Jeanne Easom, does not appear to have relied on the crop loss
estimate in reaching her conclusion that the total compensation
for the Bells’ property should be $38,000.00.

27

CONCLUSION
Sabal Trail’s motions in limine (ECF No. 124 in 4:16-cv-97;
ECF No. 60 in 4:16-cv-102; ECF No. 59 in 4:16-cv-104; ECF No. 56 in
4:16-cv-107; ECF No. 60 in 4:16-cv-113) are granted to the extent
set forth above.

Sabal Trail’s motion to exclude the testimony of

Jeanne Easom in the Jones action (ECF No. 120 in 4:16-cv-97) is
granted

in

part

and

denied

in

part.

Sabal

Trail’s

motion

to

exclude the testimony of Jeanne Easom in the Lasseter action (ECF
No. 57 in 4:16-cv-102) is granted to the extent set forth above.
Sabal Trail’s motions to exclude the testimony of Thomas Rowell in
Isaacs (ECF No. 47 in 4:16-cv-104) and GBA Associates (ECF No. 48
in 4:16-cv-107) are granted.

IT IS SO ORDERED, this 21st day of May, 2018.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

28