Glendale LLC v. Amco Insurance Company

Filing 54

ORDER granting in part and denying in part 36 Motion in Limine; granting 42 Motion in Limine; granting 47 Motion to Take Deposition from Nicole Jones. Signed by Chief Judge Robert J. Conrad, Jr on 7/23/2012. (eef)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:11-cv-3-RJC-DCK
GLENDALE LLC d/b/a WESTERN
SIZZLIN,
Plaintiff,

)
)
)
)
v.
)
)
AMCO INSURANCE COMPANY d/b/a )
NATIONWIDE MUTUAL INSURANCE )
COMPANY,
)
Defendant.
)
)

ORDER

THIS MATTER comes before the Court on Plaintiff’s Motion in Limine for the Court to
Allow Owners’ Valuation Testimony, (Doc. No. 42), and Defendant’s Motions in Limine, (Doc.
No. 36; 47).
A.

Plaintiff’s Motion

Plaintiff Glendale filed a motion in limine to allow its owner to testify as to the value of
his property. (Doc. No. 42). Plaintiff shows that the North Carolina rules of evidence would
allow such opinion testimony and argues that the North Carolina rules govern this case because
the Court’s jurisdiction is based on diversity. (Doc. No. 43 at 7). However, the Federal Rules of
Evidence govern in diversity cases unless a “question of admissibility of evidence is so
intertwined with a state substantive rule that the state rule will be followed in order to give full
effect to the state's substantive policy.” Hottle v. Beech Aircraft Corp., 47 F.3d 106, 109-110
(4th Cir. 1995) (citing Erie R.R. v. Tompkins, 304 U.S. 64 (1938)). Here, no state substantive
policy is implicated and the Court will apply federal law.

Nonetheless, the testimony should be allowed under the Federal Rules assuming Plaintiff
lays a proper foundation. Persuasive authority can be found in several places. The Eastern
District of North Carolina has held that:

An owner’s opinion can be evidence as to the value of real property. See
Evidence as to owner’s opinion, admission. See United States v. Sherrill, 626 F.
Supp. 2d 1267, 1270 n.1 (M.D. Ga.2009) (citing United States v. 68.94 Acres of
Land, 918 F. 2d 389, 397 (3d Cir.1990) (“The Federal Rules of Evidence
generally permit landowners to give opinion evidence as to the value of their land
due to the special knowledge of property which is presumed to arise out of
ownership.”); LaCombe v. A–T–O, Inc., 679 F. 2d 431, 433 (5th Cir.1982)
(“[T]he owner of property if qualified by his ownership alone to testify as to its
value.”)). The court deems the amount of coverage obtained by Jackie and Tony,
Sr., for the Turniptown Road Property is evidence as to their opinion of the value
of the property.
United States v. Pritchett, No. 5:09-cv-322-F, 2011 WL 197763, at *12 n.3 (E.D.N.C. Jan. 20,
2011). The Bankruptcy Court for the Middle District of North Carolina has also found that:
Pursuant to Fed. R. Evid. 701, an opinion of a lay witness is admissible if the
opinion is “(a) rationally based on the perception of the witness, (b) helpful to a
clear understanding of the witness’ testimony or the determination of a fact in
issue, and (c) not based on scientific, technical, or other specialized knowledge
within the scope of [expert testimony].” If the requirements of Rule 701 are met,
then the general rule is that an owner of real property may give his or her opinion
as to its value without having to qualify the owner as an expert. E.g., Hidden
Oaks v. City of Austin, 138 F.3d 1036, 1051 (5th Cir.1998) (“[W]e adhere to the
general rule that an owner [of real property] always may testify as to value,
whether assessed as of the time of trial, or at some definitive point in the past.”);
In re Petrella, 230 B.R. 829, 834 n.5 (Bankr. N.D. Ohio 1999) (“[A]n owner is
competent to give his opinion as to the value of his property, often by stating the
conclusion without stating a reason.”).
In re Deep River Warehouse, Inc., No. 04-52749, 2005 WL 1287987, at *13 n.7 (Bankr.
M.D.N.C. Mar. 14, 2005). If Plaintiff otherwise satisfies Rule 701's requirements, the current
and former owners of the Western Sizzlin’ restaurant may testify as to its value. Plaintiff’s
Motion in Limine for the Court to Allow Owners’ Valuation Testimony, (Doc. No. 42), is
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GRANTED.

B.

Defendant’s Motion

Defendant filed its first Motion in Limine on July 12, 2012. (Doc. No. 36). The Court
largely resolved the motion by GRANTING IN PART AND DENYING IN PART during the
Pretrial Conference on Friday, July 13, 2012. The only remaining portion of Defendant’s motion
concerned the Sislers’ ability to testify regarding the value of their property. For the reasons
explained above, this last remaining portion of Defendant’s July 12 Motion in Limine is
DENIED at this time.
Defendant filed its second Motion in Limine on July 18, 2012 to allow Nicole Jones to
testify out of order on the first day of trial or, in the alternative, to allow Defendant to take her
deposition by video this week for use in Defendant’s case-in-chief. (Doc. No. 47). The Court
GRANTS both requests to the extent that Defendant intends to offer substantive evidence
through Ms. Jones. However, any impeachment evidence or testimony about certain witnesses’
character for truthfulness will not be admissible until after that witness testifies. Also, the Court
cannot guarantee that the trial of this case will begin before the week of July 30, 2012. Thus,
Defendant should plan to take Jones’s deposition this week in case this trial does not begin until
Jones is unavailable.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion in Limine for the Court to Allow Owners’ Valuation
Testimony, (Doc. No. 42), is GRANTED;

2.

Defendant’s July 12 Motion in Limine, (Doc. No. 36), is GRANTED IN PART
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AND DENIED IN PART; and
3.

Defendant’s July 18 Motion in Limine regarding Nicole Jones, (Doc. No. 47), is
GRANTED.
Signed: July 23, 2012

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