Roger Cleveland Golf Company Inc v. Prince et al

Filing 140

RESPONSE in Opposition re 131 MOTION for New Trial MOTION for Judgment as a Matter of Law Motion for New Trial, Motion for Relief from Judgment, 135 Supplemental MOTION for Judgment as a Matter of LawSupplemental MOTION for New TrialSupplemental MOTION for Relief from Judgment Response filed by Roger Cleveland Golf Company Inc.Reply to Response to Motion due by 5/19/2011 (Attachments: # 1 Exhibit A - Prince Trial Testimony Excerpts, # 2 Exhibit B - Gingrich Trial Testimony Excerpts, # 3 Exhibit C - Jury Charges & Motions Excerpts, # 4 Exhibit D - Campbell v. BP, # 5 Exhibit E - Golson v. Green Tree Financial, # 6 Exhibit F - Laubach v. Khajawai, M.D., # 7 Exhibit G - East Tennessee Natural Gas v. Acres in Wythe County, VA, # 8 Exhibit H - Coach v. Gata)(McElwaine, John)

Exhibit G

Page 1

EAST TENNESSEE NATURAL GAS COMPANY, Plaintiff - Appellant, versus 7.74
ACRES IN WYTHE COUNTY, VIRGINIA; HAROLD HART; LARRY S. BALL,
Defendants - Appellees, and MARY CASEL, Commissioner of Revenue; JOHN
DOE; UNKNOWN OWNERS, Defendants.
No. 06-1716
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
228 Fed. Appx. 323; 2007 U.S. App. LEXIS 11991
March 15, 2007, Argued
May 22, 2007, Decided
NOTICE:
[**1] PLEASE REFER TO FEDERAL
RULES OF APPELLATE PROCEDURE RULE 32.1
GOVERNING THE CITATION TO UNPUBLISHED
OPINIONS.
PRIOR HISTORY:
Appeal from the United States
District Court for the Western District of Virginia, at
Danville. Jackson L. Kiser, Senior District Judge.
(4:02-cv-00104-jlk).
East Tenn. Natural Gas Co. v. 7.74 Acres, 2006 U.S.
Dist. LEXIS 33895 (W.D. Va., May 26, 2006)
DISPOSITION: AFFIRMED.

COUNSEL: Lela Merrell Hollabaugh, WALLER,
LANSDEN, DORTCH & DAVIS, Nashville, Tennessee,
for Appellant.
Henry Evans Howell, III, WALDO & LYLE, Norfolk,
Virginia, for Appellees.
JUDGES: Before TRAXLER, KING, and GREGORY,
Circuit Judges.
OPINION BY: GREGORY
OPINION
[*324] GREGORY, Circuit Judge:

A jury in Roanoke, Virginia, awarded approximately
$1.8 million to Appellees Harold Hart and Larry S. Ball
("Appellees") as just compensation for the easements
taken by Appellant East Tennessee Natural Gas Company
("East Tennessee"). The district court denied East
Tennessee's motion for a new trial or, in the alternative,
remittitur, a decision East Tennessee now appeals.
Finding no abuse of discretion by the district court, we
affirm.
I.
In 2003, the court below granted East Tennessee a
fifty-foot wide permanent [*325] easement across 7.74
acres of Appellees' land and a temporary easement across
10.31 acres of Appellees' land so that [**2] East
Tennessee could install a natural gas pipeline. That
decision, which this Court affirmed, is not before us. See
East Tenn. Natural Gas Co. v. Sage, 361 F.3d 808 (4th
Cir. 2004); see also id. at 818 (explaining that the Natural
Gas Act, 15 U.S.C. § 717f(h) (2000), grants gas
companies the power to acquire property by eminent
domain). The taking has affected approximately 378
acres of Appellees' 700-acre real estate. Those 378 acres
("Appellees' property") are comprised of a 364-acre
parcel and a 14-acre parcel beside State Route 629 and at
the intersection of Interstate Routes 77 and 81 in Wythe
County, Virginia.
In March 2006, the district court impaneled a

Page 2
228 Fed. Appx. 323, *325; 2007 U.S. App. LEXIS 11991, **2

six-person jury to determine the amount of just
compensation owed to Appellees as a result of the taking.
Before trial began, East Tennessee filed motions in
limine to exclude the appraisal testimony of Appellees'
two expert witnesses, Frank Porter and Dennis Gruelle.
The motions argued that Porter and Gruelle's testimony
about the value of Appellees' property before and after
the taking was not based upon sufficient facts and was
not the product of reliable [**3] methods as required by
Federal Rule of Evidence 702. After a hearing on the
motions, the court denied them.
On the first day of trial, the jury visited Appellees'
property. When the jury returned, Appellees called
Robert Cellell Dalton, Wythe County Administrator and
a civil engineer by trade. Dalton indicated that
commercial development was the highest and best use for
Appellees' property before the taking. In 2002, he
recalled, a large sporting goods retailer approached
Appellees about commercial use of their property
because of its high visibility from two interstates. The
county's marketing efforts resulted in the retailer's
narrowing its choice for a location on which to build to
Appellees' property and a site in West Virginia that the
retailer ultimately chose for tax reasons. Dalton admitted
that the negotiations did not progress beyond a general
stage, that there would be costs (albeit costs the county
was willing to undertake) associated with developing
Appellees' property for commercial use, and that no one
was looking at the property when the pipeline was
announced. Dalton further testified that if the pipeline
had not been built, the [**4] county would have
continued to show the property to commercial and
industrial buyers interested in interstate visibility. Now
the county does not.
Appellees next called John Fowler, an engineering
consultant who testified that before the taking, it would
have been practically and economically feasible to build
interstate on/off ramps on Appellees' property, thereby
increasing its suitability for commercial and industrial
development. Now, he testified, Appellees' property is
unsuitable for such development because an access road
cannot be built over the pipeline. Fowler relied on his
visit to the site, maps supplied by East Tennessee and the
U.S. Geological Survey, and a video shown at trial to
reach his conclusions.
Appellees called appraisers Porter and Gruelle to
establish a fair market value for the property before and

after the taking. Porter testified that the highest and best
use of Appellees' property before the taking was "to hold
it for an industrial/commercial type of use." J.A. 560.
Porter relied on three industrial sales in the Virginia
counties of Rockingham, Warren, and Wythe to
determine the before-take value of Appellees' property.
He reduced the values of those [**5] three properties by
52%, 66%, and 75%, respectively, to make them
comparable to Appellees' property, a "unique property"
for appraisal purposes. [*326] J.A. 560-61. In assessing
the value of Appellees' property, Porter assumed that
interstate ramps which currently do not exist would be
constructed. Porter concluded that the placement of the
pipeline in the middle of Appellees' property now limited
the property to agricultural or residential use.
Accordingly, he relied on agricultural and residential
sales from Wythe County to calculate the value of
Appellees' property after the taking.
Like Porter, Gruelle testified that the highest and best
use of Appellees' property before the taking was
commercial development and that the property's location
made it unique for appraisal purposes. Gruelle used five
sales of property for commercial or industrial use to
establish the before-take value of Appellees' property.
The first sale was the same Rockingham County sale
used by Porter. The second, third, and fourth sales
involved property between 16.69 and 20 acres in size, a
contrast to Appellees' 378 acres. The fifth sale was the
same Wythe County sale used by Porter. In addition, two
of the five [**6] sales Gruelle used were sales of
property for the construction of convenience stores or
truck stops; Gruelle admitted that Appellees' property is
not suited to such use. Gruelle reduced the values of the
five properties by 55%, 85%, 55%, 35%, and 60%,
respectively, in order to establish a value for Appellees'
property before the taking. Gruelle concluded that the
property's diminished utility after the installation of the
pipeline made its highest and best use residential and
agricultural use. Like Porter, Gruelle used three sales of
agricultural and residential property in Wythe County to
calculate the value of Appellees' property after the taking.
East Tennessee called appraiser Warren Klutz, who
gave extensive testimony about the improper application
of professional appraising standards by Porter and
Gruelle. Klutz testified that Porter and Gruelle did not
provide sufficient data or evidence to support their
conclusions that the highest and best use of Appellees'
property before the taking was commercial or industrial

Page 3
228 Fed. Appx. 323, *326; 2007 U.S. App. LEXIS 11991, **6

development. Klutz opined that the highest and best use
before the taking was agricultural or residential use.
Klutz did not appraise Appellees' property, visit the [**7]
property, review the files prepared by Porter and Gruelle
(as opposed to reading only their reports), or talk to any
of the parties involved in the transactions on which Porter
and Gruelle relied.
East Tennessee also presented the videotaped
deposition of John Harris to establish that Appellees'
property outside of the easement could still be developed.
Lastly, East Tennessee called appraiser James Johnston.
Johnston testified that because of poor access to the
property and because of its topography, the property's
highest and best use was agricultural or residential use.
Johnston admitted that the property's proximity to the
interstate was an advantage and that he had not consulted
an engineer in forming his conclusion that it would be too
expensive to develop access to Appellees' property.
Johnston further testified that based on market practices,
he accounted only for the loss in value to the 200 feet on
each side of the pipeline, not the loss in value to
Appellees' entire property.
The jury returned a verdict in favor of Appellees in
the amount of $1,875,986. East Tennessee then filed a
motion for a new trial or, in the alternative, remittitur,
pursuant to Rule 59 of the Federal Rules of Civil
Procedure. [**8] After a hearing, the district court
denied the motion. In this appeal, East Tennessee charges
that the district court abused its discretion in denying its
motion for a new trial or, in the alternative, remittitur,
and in admitting the expert testimony of Porter and
[*327] Gruelle. We consider the latter charge first.
II.
We review a trial court's decision whether to admit
expert testimony for abuse of discretion. O'Neill v.
Windshire-Copeland Assocs., 372 F.3d 281, 284 (4th Cir.
2004). In making its decision, the trial court "exercises a
gate keeping function to assess whether the proffered
evidence is sufficiently reliable and relevant." Westberry
v. Gislaved Gummi AB, 178 F.3d 257, 261 (4th Cir.
1999). East Tennessee argues that the court below
abdicated its gate-keeping function when it admitted
expert testimony that, for two reasons, was flawed from
the start. 1
1
We reject Appellees' suggestion that East
Tennessee's failure to object to the admission of

the expert testimony at trial has ruined the issue
for appeal. "Motions in limine preserve issues that
they raise without any need for renewed
objections at trial, just so long as the movant has
clearly identified the ruling sought and the trial
court has ruled upon it." Rice v. Cmty. Health
Ass'n, 203 F.3d 283, 286 (4th Cir. 2000); see also
Fed. R. Evid. 103(a) ("Once the court makes a
definitive ruling on the record admitting or
excluding evidence, either at or before trial, a
party need not renew an objection or offer of
proof to preserve a claim of error for appeal.").
East Tennessee has met this standard.
[**9] First, according to East Tennessee, Porter and
Gruelle failed to establish that the highest and best use of
Appellees' property before the taking was industrial or
commercial use. This Court presumes the highest and
best use of a property to be its current use--here,
agricultural and residential--unless the landowner shows
that a different highest and best use is "reasonably
probable" within the "reasonably foreseeable future," not
merely "within the realm of possibility." United States v.
69.1 Acres of Land, 942 F.2d 290, 292 (4th Cir. 1991).
East Tennessee contends that Porter and Gruelle have not
met this standard: the last offer for the property was made
in 2002, at a price-per-acre nearly half of that appraised
by Porter and Gruelle, and the property would have
required extensive improvements in access and
topography to accommodate industry and commerce.
Second, according to East Tennessee, Porter and
Gruelle did not use truly "comparable" sales to determine
the value of Appellees' property before the taking,
making their opinions untrustworthy and misleading. East
Tennessee alleges that one of Porter's three comparable
sales is unreliable because it was not [**10] an
arms-length transaction and that his other two sales took
place in counties that he has not established are similar to
Wythe County. East Tennessee finds similar fault with
two of Gruelle's comparable sales and complains that the
remainder of his comparable sales are of properties too
small to be compared to Appellees' 378 acres. Both
experts' "drastic" downward adjustments demonstrate, in
East Tennessee's view, precisely how dissimilar their
chosen comparable sales are to Appellees' property.
Where, as here, an expert's factual basis, data,
principles, methods, or application are called into
question, Federal Rule of Evidence 702 2 and Daubert v.

Page 4
228 Fed. Appx. 323, *327; 2007 U.S. App. LEXIS 11991, **10

Merrell [*328] Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), require a
trial court to determine whether the expert's testimony
"has a reliable basis in the knowledge and experience of
[his or her] discipline." Kumho Tire Co., Ltd. v.
Carmichael, 526 U.S. 137, 149, 119 S. Ct. 1167, 143 L.
Ed. 2d 238 (1999) (quotation marks omitted). In making
this determination, the court must focus on the "principles
and methodology employed by the expert, not on the
conclusions reached. [**11] " Westberry, 178 F.3d at
261 (quotation marks omitted). The court "should be
mindful that Rule 702 was intended to liberalize the
introduction of relevant expert evidence." Id.
Accordingly, we have held that:
the court need not determine that the
expert testimony a litigant seeks to offer
into evidence is irrefutable or certainly
correct. As with all other admissible
evidence, expert testimony is subject to
being
tested
by
[v]igorous
cross-examination,
presentation
of
contrary evidence, and careful instruction
on the burden of proof.
Id. (quotation marks and citations omitted). At the same
time, the court should be mindful that, "given the
potential persuasiveness of expert testimony, proffered
evidence that has a greater potential to mislead than to
enlighten should be excluded." Id. We give "great
deference" to the trial court's ultimate decision. United
States v. Barnette, 211 F.3d 803, 816 (4th Cir. 2000). It
will not be disturbed unless the court acted arbitrarily or
irrationally. United States v. Jones, 913 F.2d 174, 177
(4th Cir. 1990).
2 Federal Rule of Evidence 702 states in its
entirety:
If scientific, technical or other
specialized knowledge will assist
the trier of fact to understand the
evidence or to determine a fact in
issue, a witness qualified as an
expert by knowledge, skill,
experience, training, or education,
may testify thereto in the form of
an opinion or otherwise, if (1) the
testimony is based upon sufficient
facts or data, (2) the testimony is

the product of reliable principles
and methods, and (3) the witness
has applied the principles and
methods reliably to the facts of the
case.
Fed. R. Evid. 702.
[**12] In denying East Tennessee's motions in
limine, the district judge remarked that he would need to
hear the full expert testimony before deciding whether the
experts used incorrect methodology to determine the
highest and best use of Appellees' property. The judge
also observed that, because he was not the trier of fact, he
"would be on a very slippery slope to start saying what is
a proper comparable and what is not a proper
comparable." J.A. 298. He concluded: "I am not prepared
to say that because the comparables are open to very
severe cross-examination, that they're not proper
comparables. At this point in time, I think that is an issue
for the jury to determine, not the Court." Id.
This ruling was not an abuse of discretion. The
district judge was not obligated to determine whether
Porter and Gruelle's conclusions about highest and best
use were "irrefutable" or whether the comparable sales
Porter and Gruelle chose were "certainly correct"
measurements. Westberry, 178 F.3d at 261. Porter and
Gruelle's choices and conclusions were thoroughly tested
on cross-examination, East Tennessee presented its own
witnesses to contradict Porter and Gruelle's testimony,
[**13] and the judge instructed the jury on the burden of
proof and the weight to be given expert testimony. Cf. id.
In these circumstances, we do not find present the
competing consideration in admitting expert testimony:
the potential for the testimony to mislead rather than to
enlighten.
We further note that, in their written motions and at
the hearing on the motions, East Tennessee produced no
evidence that would have weighed in favor of excluding
Porter and Gruelle's testimony as unreliable. East
Tennessee presented no evidence that Porter and
Gruelle's starting point for a before value or their
rationale in determining highest and best use has not been
tested, has not been subject to peer review, has not been
accepted by the appraisal community, or has a known rate
of error. See generally id. at 261 n.1 (listing "tools" that
are valuable in assessing the reliability of an expert's
opinion); [*329] accord TFWS, Inc. v. Schaefer, 325

Page 5
228 Fed. Appx. 323, *329; 2007 U.S. App. LEXIS 11991, **13

F.3d 234, 240 (4th Cir. 2003) (upholding the decision to
admit testimony where the plaintiff "[did] not argue that
[the expert's] methods have not been tested, have not
withstood peer review and publication, have [**14]
excessive rates of error, have no standards for their
application, or have not been accepted in their field").
East Tennessee admits that it has never questioned
Porter's and Gruelle's qualifications or their method of
determining just compensation by calculating the
difference between before and after values. Rather, East
Tennessee maintains, it is merely questioning the basis
for Porter's and Gruelle's just compensation calculations.
Upon closer examination, however, it is apparent that
East Tennessee is really challenging the proper weight to
be given the evidence presented at trial. Excerpts from
East Tennessee's briefs are telling:
Contrary to the speculative opinions of
Mr. Porter and Mr. Gruelle, the clear
weight of the evidence at trial established
that the highest and best use of the
property was for agricultural or residential
use.
Appellant's Br. 29; and
As stated in East Tennessee's opening
brief, the evidence presented at trial
arguably
suggests
that
commercial/industrial use may occur at
some point in the future. However, the
evidence failed to establish that it was
reasonably probable in the reasonably near
future.
Appellant's Reply [**15] Br. 1. In other words, East
Tennessee "does not mount a true Daubert challenge."
TFWS, 325 F.3d at 240; see id. (upholding decision to
admit testimony where the plaintiff mounted "a challenge
to the proper weight to be given to [the expert's]
evidence, not to its admissibility"). Accordingly, the
district court did not abuse its discretion in admitting
Porter and Gruelle's testimony.
III.
We review the decision to deny a motion for a new
trial for abuse of discretion and "will not reverse absent
exceptional circumstances." Dennis v. Columbia Colleton
Med. Ctr., Inc., 290 F.3d 639, 650 (4th Cir. 2002). 3 A

court should grant a new trial only if the verdict (1) "is
against the clear weight of the evidence, or (2) is based
on evidence which is false, or (3) will result in a
miscarriage of justice, even though there may be
substantial evidence which would prevent the direction of
a verdict." Knussman v. Maryland, 272 F.3d 625, 639
(4th Cir. 2001). East Tennessee draws our attention to the
first and third prongs of this standard.
3
We reject Appellees' contention that our
standard of review is actually even more forgiving
because East Tennessee failed to move for a
directed verdict at trial pursuant to Federal Rule
of Civil Procedure 50(a). East Tennessee was not
required to make a Rule 50(a) motion because
East Tennessee does not challenge whether there
is an issue for the jury--that is, whether Appellees
have the right to just compensation. East
Tennessee concedes the right to just
compensation; instead, it challenges the
sufficiency of the evidence supporting the amount
of compensation determined by the jury. Thus,
this Court's standard of review is unchanged.
[**16] East Tennessee first argues that the jury
verdict is against the weight of the evidence because
every appraiser who testified at trial stated that there were
agricultural or residential properties in Wythe County
that sold for approximately $1,800 per acre. Yet, East
Tennessee argues, Porter and Gruelle suggested a
before-take value for Appellees' property of $10,000 and
$11,500 per acre, respectively, based on incomparable
sales of industrial and commercial property in other
counties. Second, East Tennessee argues that the [*330]
verdict will result in a miscarriage of justice because in
the six trials and multiple land commission proceedings
convened to date to determine the compensation owed to
landowners affected by East Tennessee's pipeline, no
landowner--regardless of the size of his or her
property--has been awarded more than $135,800. Given
this, East Tennessee argues, fairness requires setting
aside or reducing Appellees' award.
These arguments fail. As the district court noted in
its order denying the motion, there was evidence at trial,
contrary to East Tennessee's assertions, demonstrating
that the highest and best use of Appellees' property before
the taking was industrial [**17] and commercial use. In
addition to Porter and Gruelle, Dalton and Fowler
testified as much. Although East Tennessee called

Page 6
228 Fed. Appx. 323, *330; 2007 U.S. App. LEXIS 11991, **17

witnesses to contradict the conclusions drawn by these
four individuals, it was, as the district court noted, the
jury's decision to weigh the credibility of the witnesses
presented by both sides. Cf. United States v. Smoot Sand
& Gravel Corp., 248 F.2d 822, 829 (4th Cir. 1957)
(upholding a verdict "not consistent with either party's
theory of valuation" where, among other things, the "jury
heard the experts presented by the parties and could
accept or reject any part of their testimony"). As for East
Tennessee's fairness argument, we find nothing irrational
or arbitrary about the district court's conclusion that
fairness must be put into context when each just
compensation case involves different parcels of land,
different owners, different witnesses, and so on. The
mere fact that the jury's verdict in this case exceeds any
previous verdict does not mean that there has been a
miscarriage of justice. Furthermore, even if the previous
awards represent a fraction of the award here, East
Tennessee has provided no evidence about the
characteristics [**18] of the other properties affected by
the pipeline or the testimony, expert and otherwise, that
the other juries and land commissioners heard. East
Tennessee's motion was properly denied.

offer a figure because he did not appraise the property;
Johnston testified that Appellees were owed a total of
$82,652 for the three parcels. Given this testimony,
which the jury was free to accept or reject as it pleased,
an award of $1.8 million is entirely reasonable and is not
excessive compensation for the diminution in Appellees'
property which the jury could reasonably determine,
based on the evidence presented at trial, the pipeline
caused. Cf. Conner, 227 F.3d at 202; see also Klein v.
Sears Roebuck & Co., 773 F.2d 1421, 1428 (4th Cir.
1985) (noting that [**19] a district court "in its
discretion may set aside a verdict and grant a new trial if
the verdict is so excessive that it cannot be justified by
anything in the record or of which the [c]ourt can take
judicial notice" (quotation marks omitted)); Smoot Sand,
248 F.2d at 829 (refusing to grant a new trial where the
jury's verdict was within the range of the credited
testimony, "which should not be reweighed on appeal").
The district court properly denied East Tennessee's
request for remittitur.

IV.

V.

Whether the jury's award is excessive is a question of
law that we review de novo. Conner v.
Schrader-Bridgeport Intern., Inc., 227 F.3d 179, 202 (4th
Cir. 2000). Appellees' appraiser-witnesses, Porter and
Gruelle, estimated that just compensation for Appellees'
364-, 14-, and 40-acre parcels 4 would exceed $3 million.
Of East Tennessee's appraiser-witnesses, Klutz could not

For the foregoing reasons, we conclude that the
district court did not abuse its [*331] discretion in
denying East Tennessee's motions in limine and motion
for a new trial. We therefore affirm the decision below.

4 Just compensation for the 40-acre parcel is not
at issue in this appeal.

AFFIRMED