Rover Pipeline LLC v. ROVER TRACT NO(S). WV-MA-ML-056.500-ROW et al
Filing
90
MEMORANDUM OPINION AND ORDER DENYING 84 PLAINTIFF'S MOTION TO EXCLUDE AND GRANTING IN PART AND DENYING IN PART 85 MOTION FOR SUMMARY JUDGMENT. The Clerk is directed to DISMISS all remaining defendants (other than the Fosters) and unkno wn owners WITH PREJUDICE. John B. McCuskey (West Virginia State Auditor), ROVER TRACT NO(S). WV-MA-ML-056.500-ROW and WV-MA-ML--056.500-ATWS (Comprised of Permanent Easement(s) Totaling 0.20 Acres, more or less, and Temporary Easement(s) Totaling 0.70 Acres, more or less, over a Parcel of Land in Union District, Marshall County, West Virginia, Consisting 4.00 Acres), Unknown Owners, Christine R. Yanen, John R. Yanen, Kevin Cecil (Sheriff of Marshall County, West Virginia) and Marshall Land LLC terminated. Signed by District Judge John Preston Bailey on 8/5/2021. (ag)
Case 5:18-cv-00068-JPB-JPM Document 90 Filed 08/05/21 Page 1 of 17 PageID #: 1532
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
Wheeling
ROVER PIPELINE LLC,
Plaintiff,
v.
CIVIL ACTION NO. 5:18-CV-68 (LEAD)
Judge Bailey
ROVER TRACT NO(S). WV-MA-ML-056.500-ROW
AND WV-MA-ML-056.500-ATWS, ET AL.,
P
Defendants.
and
ROVER PIPELINE LLC,
Plaintiff,
v.
CIVIL ACTION NO. 5:18-CV-72
ROVER TRACT NO(S). WV-MA-ML-057.000-ROW-T,
WV-MA-ML-057.000-ATWS, AND WV-MA-ML-057.000-ATWS-2, ET AL.,
Defendants.
MEMORANDUM OPINION AND ORDER DENYING PLAINTIFF’S MOTION
TO EXCLUDE AND GRANTING IN PART AND DENYING IN PART
MOTION FOR SUMMARY JUDGMENT
Pending before this Court are two motions—Plaintiff’s Motion to Exclude Expert
Witness Testimony of Lee C. Paull, IV [Doc. 84] and Plaintiff’s Motion for Summary Judgment
as to Just Compensation Owed to Defendants [Doc. 85]. Defendants filed an Omnibus
Response to Rover Pipeline’s Motion for Summary Judgment and Motion to Exclude Expert
Testimonyof Lee Paull, IV [Doc. 86]. Thereafter, plaintiff filed a Reply in Support of Plaintiff’s
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Motion to Exclude Expert Witness Testimony of Lee C. Paul!, IV [Doc. 88], and a Reply in
Support of Plaintiff’s Motion for Summary Judgment as to Just Compensation Owed to
Defendants [Doc. 89]. Accordingly, these matters are ripe for adjudication, and given the
overlap in argument between the motions, this Courtwill addressthem in one order. Forthe
reasons contained herein, the Motion in Limine will be denied, and the Motion for Summary
Judgment will be granted in part and denied in part.
BACKGROUND
On February3, 2017, Roverfiled its Verified ComplaintforCondemnation [CivilAction
No. 5:1 7-CV-1 5, Doc. JJ seeking an order of condemnation for permanent pipeline, temporary
workspace, surface site, permanent and temporary road access, and/or other rights-of-way
and easements (“easements”), which it subsequently amended on February 23,2017 [Civil
Action No. 5:17-CV-15, Doc. 46]. On February 7, 2017, Rover filed its Motion for Partial
Summary Judgment and Immediate Access and Possession of Easements to be Condemned
[Civil Action No. 5:1 7-CV-1 5, Doc. 33] seeking immediate access to and possession of the
easements described in its complaint. On February 23, 2017, Rover filed its Supplement to
Motion for Partial Summary Judgmentto incorporate the easements added in its February 23,
2017, Amended Verified Complaint in Condemnation [Civil Action No. 5:1 7-CV-1 5, Doc. 61].
On March 3, 2017, this Court entered its Order Granting Rover Pipeline LLC’s Motion for
Partial Summary Judgment and Immediate Access and Possession of Temporary Easements
to be Condemned [Civil Action No. 5:17-CV-15, Doc. 208] confirming Rover’s right to
condemn and permitting Roverto immediately access and possess the easements while the
issue of just compensation was determined.
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Pursuant to this Court’s March 3, 2017, Order, Rover deposited $7,000.00 for the
easements with the court. See [Civil Action No. 5:1 7-CV-1 5, Doc. 209]. The March 3, 2017,
Order provided thatthe remaining defendants were “entitled to drawfrom the funds deposited
by [Rover] with the Clerk of the Court [their] ownership share of the amount of estimated just
compensation deposited by [Rover].” See [Civil Action No. 5:17-CV-15, Doc. 208]. The
March 3, 201 7, Order further provided that the defendants “shall be entitled to interest
calculated pursuantto 28 U.S.C.
§ 1961 from and afterthe date of entry of this Order on the
difference between the principal amount deposited with the Court by [Rover] and the amount
ofjust compensation determined by the Court, if such determination ofjust compensation to
be paid exceeds the amount deposited by [Rover].” [Id.].
On March 22, 2018, this Court entered its Order Directing Plaintiff to File Separate
Amended Complaints for Unresolved Tracts, Economic Units or Ownership. See [Civil Action
No. 5:17-CV-15, Doc. 494].
ON May 1, 2018, Rover filed its Verified Complaint for
Condemnation of Easement(s) Known as Tract No(s) WV-MA-ML-056.500-ROW and WV
MA-ML-056.500-ATWS [Civil Action No.5:1 8-CV-68, Doc. 1], which it subsequently amended
on March 29, 2019 [Doc. 31]. Also, on May 1,2018, Roverfiled its Verified Complaint for
Condemnation of Easement(s) Known as Tract No(s) WV-MA-ML-057.000-ROW-T [Civil
Action No. 5:18-CV-72, Doc. 1], which it subsequently amended on June 11, 2018 [Doc. 8],
and which it amended for a second time on March 29, 2019 [Doc. 60].
On June 11, 2018, and March 30, 2019, Rover filed its Motions for Partial Summary
Judgment and Immediate Access and Possession in the 2018 civil actions [Civil Action
5:18-CV-68, Doc. 33, and Civil Action No. 5:18-CV-72, Docs. 9 & 62] seeking immediate
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access to and possession of the easements. On August 13, 2018, and April 23, 2019, this
Court entered its Orders Granting Rover’s Motion for Partial Summary Judgment and
ImmediateAccessand Possession in CivilAction Nos. 5:18-CV-68 [Doc. 39] and 5:18-CV72 [DoGs. 48 & 69] (collectively the “Orders Granting Possession”). This Court’s Orders
Granting Possession confirmed Rover’s right to condemn and permitted Roverto immediately
access and possess the easements while the issue of just compensation was determined.
Pursuant to the Court’s Orders Granting Possession, Rover deposition an additional
$5,400.00 [Civil Action No. 5:18-CV-68, Doc. 40], $3,300.00 [Civil Action No. 5:18-CV-72,
Dcc. 50], and $7,180.00 [Civil Action No. 5:18-CV-72, Doc. 70]. The Orders Granting
Possession provided that the Remaining Defendants were “entitled to draw from the funds
deposited by [Rover] with the Clerk of the Court [their] ownership share of the amount of
estimated just compensation deposited by [Rover].” See [Civil Action No. 5:1 8-CV-68, Doc.
39; and Civil Action No. 5:18-CV-72, Docs. 48 & 69]. The Orders Granting Possession further
provided that the defendants “shall be entitled to interest calculated pursuant to 28 U.S.C.
§
1961 from and afterthe date of entryof this Orderon the difference between the principal
amount deposited with the Court by [Rover] and the amount ofjust compensation determined
by the Court, if such determination of just compensation to be paid exceeds the amount
deposited by [Rover].” [Id.].
On August 18, 2020, this Court consolidated Civil Action Nos. 5:1 8-CV-68 and 5:18CV-72 and designated the former as the lead case.
The total amount that Rover deposited with the Court in the consolidated actions,
$22,880.00, represented an aggregate estimate ofjust compensation due to all owners. The
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aggregate estimate was based on appraisal data and/or offers made to the surface owners
and did not include any amount specifically attributable to the interests of owners besides the
surface owners, such as owners of mineral interests, easement interests, or lien interests.
Although owners besides the surface owners were named as defendants pursuant to Federal
Rule of Civil Procedure 71.1(c)(3), such owners had not alleged any compensable
interference with their interests in the subject property bythe taking; accordingly, none of the
estimated deposit amount was specifically attributable to the interests of owners besides the
surface owners. The remaining defendants are comprised of those owners with an interest
in the surface of the subject property, Kerry Foster, Cindy Foster, and Ryne Foster (“the
Fosters” or”defendants”), an ownerwith an interest in the coal in-place underlying the subject
property (“coal owner”), those owners other than surface owners or the coal owner with an
interest in the subject property, such as mineral interests, easement interests, or lien interests
(“other interest owners”), and unknown owners. Pursuant to Federal Rule of Civil Procedure
71 .1(c)(3), Rover named the unknown owners as defendants outof an abundance of caution.
The identities, interests, and whereabouts of the unknown owners remain unknown.
The easements Rover is seeking to condemn and the property upon which the
easements are located are more specifically described in Rover’s Amended Verified
Complaints for Condemnation of Easements and Exhibits A thereto [Civil Action No.
5:1 8-CV-68, Docs. 31 & 31-1; and Civil Action No. 5:1 8-CV-72, Docs. 60 & 60-1]. As Rover
has already taken possession of the easements, the only remaining issue before this Court
is that ofjust compensation to the remaining defendants for the subject takings. As indicated
by the subject pleadings, a dispute amongst the parties exists concerning the amount of just
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compensation to be awarded. The competing valuations asserted by the parties stem from
conflicting expert opinions concerning the same and, in turn, the propriety of summary
judgment hinges on whether defendants’ expert evidence is admissible before this Court.
STANDARDS OF REVIEW
I.
Admissibility of Expert Evidence
The admissibility of expert testimony is governed by Federal Rule of Evidence 702,
which provides:
A witness who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise if:
(a)the expert’s scientific, technical, orotherspecialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the
case.
Fed. R. Evid. 702.
Once qualified, an expert’s testimony is admissible under Rule 702 if(1) it concerns
reliable “scientific, technical, orotherspecialized knowledge” that (2) will “aid thejury orother
trier of fact to understand or resolve a fact at issue.” Westberry v. Gislaved GummiAB, 178
F.3d 257, 260 (4th Cir. 1999) (citing Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579,
592 (1993)). The first prong requires that this Court examine whether the reasoning or
methodology underlying the expert’s proffered opinion is reliable, and the second prong
requires this Court to evaluate whether the proffered testimony is relevant to the issues in
controversy. Daubert, 509 U.S. at 590—92, 597.
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In assessing whether an expert’s opinion is sufficiently reliable and relevant, this Court
acts as a gatekeeper and conducts a flexible inquiry focusing on the principles and
methodology employed by the expert ratherthan the conclusions reached. Id.at 594—95. As
the gatekeeper, the trial court must ensure that speculative and unreliable opinions do not
reach the jury. Id. at 589, n.7. The proponent of expert testimony “must come forward with
evidence from which the court can determine that the proffered testimony is properly
admissible.” Maryland Cas. Co. v. Therm-O-Disc, Inc., 137 F.3d 780, 783(4th Cir. 1998);
see also Cooper v. Smith & Nephew, Inc., 259 F.3U 194, 199 (4th Cir. 2001) (“The
proponent of the testimony must establish its admissibility by a preponderance of proof.”)
(citing Daubert, 509
u.s. at 592 n.10).
Declining to establish a definitive checklist to assess “reliability,” the Daubert Court
nevertheless articulated four, non-exhaustive factors to consider: (1) whether a theory or
technique “can be (and has been) tested”; (2) “whether the theory or technique has been
subjected to peer review and publication”; (3) “the known or potential rate of error”; and (4)
“general acceptance.” Id. at 593—94.
The overarching objective of the gatekeeping
requirement is to ensure that expert witnesses employ the “same level of intellectual rigor that
characterizes the practice of an expert in the relevant field” in the courtroom. Kumho Tire Co.
v. Carmichael, 526
u.s.
137, 152 (1999).
To be considered reliable, an expert must employ a methodologythat is “recognized
in the scientific community for rendering an opinion on the subject under consideration.”
Oglesbyv. General Motors Corp., 190 F.3d 244, 250 (4th Cir. 1999) (“A reliable expert
opinion must be based on scientific, technical or other specialized knowledge and not on
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belief orspeculation, and inferences must be derived using scientific orothervalid methods.”).
Expert opinions that are ‘bare conclusions without reliable support” are subject to exclusion.
Stolting v. Jolly Roger Amusement Park, Inc., 37 F.App’x 80, 83 (4th Cir. 2002); see
McEwen v. Baltimore Washington Med. Ctr. Inc., 404 F.App’x 789, 791—92(4th Cir. 2010)
(“Nothing in either Daubertorthe Federal Rules of Evidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit of the expert.”)
(quoting Gen. Elec. Co. v. Joiner, 522
II.
u.s.
136, 146 (1997)).
Just Compensation
Just compensation is a reimbursement to the landowner forthe property interest taken.
United States v. Va. Elec. & Power Co., 365 U.5. 624, 633 (1961). It is the amount of
money necessary to put a landowner in as good a pecuniary position, but no better, as if his
property had not been taken. United States v. 69.1 Acres of Land, 942 F.2d 290,292(4th
Cir. 1991). The landowner has the burden of proving the value of the land taken. Id.
Just compensation consists of: (1)the fair market value of the property taken; and (2)
the damage, if any, to the landowner’s remaining property as a result of the taking. See
United States v. 97.17 Acres of Land, 582 F.2d 878, 881 (4th Cir. 1978).
Just
compensation is “measured by ‘the market value of the property at the time of the taking.”
United States v. 100.01 Acres of Land, 102 F.App’x 295, 297 (4th Cir. 2004) (quoting
United States v. 50 Acres of Land, 469
u.s. 24, 29 (1984)).
The measure of damages to
the landowner’s remaining property is the difference between the fair market value of the
property immediately before the taking and its fair market value immediately afterthe taking.
United States v. Banisadr Bldg. Joint Venture, 65 F.3d 374, 378 (4th Cir. 1995).
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Where the property interest condemned is only a partial taking of the property, “just
compensation is determined bythe diminution in marketvalue as measured bythe difference
between the fair market value of the land before condemnation and the fair market value after.”
Hardy Storage CoW, LLC v. Property Interests Necessary to Conduct Gas Storage
Operations in the OriskanySandstone Subterranean Geological Formation, 2009 WL
689054, at*5(N.D. W.Va. Mar. 9,2009) (Keely, J.); see also Columbia Gas Transmission,
LLC v. 76 Acres, 701 F.App’x 221, 228 (4th Cir. 2017) (“[T]he measure of damages for a
partial taking isthe fair market value of the parcel actuallytaken plus the severance damages;
severance damages are defined as the difference in market value of the residue before and
after taking.”) (internal quotation marks omiffed).
When a permanent easement is condemned, “the Court must consider not only the
market value of the property and the amount of land taken, but also the percentage of the
original bundle of ownership rights that the owner retains on the encumbered land.” Portland
Natural Gas Transmission Sys. v. 19.2Acres ofLand, 195 F.Supp.2d 314, 322(D. Mass.
2002). When a temporary easement is condemned, compensation is measured by “the rental
value of the propertyforthe period of occupation,” which “commonly measured by the rental
value of the property as a whole.” Id. at 322—23.
III.
Summary Judgment
Federal Rule of Civil Procedure 56 provides that summary judgment is appropriate “if
the pleadings, depositions, answers to interrogatories, and admissions on file, togetherwith
the affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” The party seeking summary
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judgment bears the initial burden of showing the absence of any genuine issues of material
fact. See Celotex Corp. v. Catrett, 477 U.S. 317,322—23(1986). If the moving party meets
this burden, the nonmoving party “may not rest upon the mere allegations or denials of its
pleading, but must set forth specific facts showing there is a genuine issue for trial.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.
“The inquiry performed is the threshold inquiry of determining whetherthere is the need fora
trial—whether, in other words, there are any genuine factual issues that properly can be
resolved only by a finder of fact because they may reasonably be resolved in favor of either
party.” Id. at250.
In reviewing the supported underlying facts, all inferences must be viewed in the light
most favorable to the party opposing the motion. See Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574,587(1986). Additionally, the party opposing summary judgment
“must do more than simply show that there is some metaphysical doubt as to the material
facts.” Id. at 586. That is, once the movant has met its burden to show absence of material
fact, the party opposing summary judgment must then come forward with affidavits or other
evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c);
Celotex Corp., 477 U.S. at 323—25; Anderson, 477 U.S. at 248. “If the evidence is merely
colorable, or is not significantly probative, summary judgment may be granted.” Anderson,
477 u.s. at 249 (citations omitted). Although all justifiable inferences are to be drawn in favor
of the non-movant, the non-moving party “cannot create a genuine issue of material fact
through mere speculation of the building of one inference upon another.” Beale v. Hardy, 769
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F.2d 213,214(4th Cir. 1985). Further, “the plain language of Rule 56(c) mandates the entry
of summary judgment.. against a party who fails to make a showing sufficient to establish
.
the existence of an element essential to that party’s case, and on which that partywill bearthe
burden of proof at trial.” Celotex Corp., 477 U.S. at 322.
DISCUSSION
Much of plaintiff’s argument in its Motion for Summary Judgment hinges on the
admissibility of testimony offered by the Fosters’ expert witness—Lee Paull, IV. This testimony
is the subject of plaintiff’s Motion in Limine and, accordingly, this Court will address the merits
of that motion as a threshold matter before turning to the Motion for Summary Judgment.
I.
Plaintiff’s Motion in Limine
In the pending Motion in Limine, plaintiff asserts that Paull is not qualified to provide
expert testimony in this case. [Doc. 84-1 at 8]. As identified by plaintiff, Paull is a licensed
real estate agent and broker in West Virginia and Ohio. [Doc. 84-5 at 13:4—9]. Plaintiff
contends that despite his experience as a real estate agent and broker, Paull is not qualified
to render an expert opinion regarding the market value of the Fosters’ property because he
is not a licensed appraiser and is unfamiliar with valuation in condemnation proceedings.
[Doc. 84-1 at 8].
Further, plaintiff contends that despite Paull’s assertion that he has functioned as a
“developer,” Paull admits that he is “not in th[eJ business” of preparing raw land for residential
real estate development; therefore, plaintiff asserts Paull is incapable of estimating the costs
associated with developing the Foster’s property into a residential subdivision. [Id. at 9].
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Plaintiff also arguesthat Paull is not qualified to comment upon the safety of its pipeline
because Paull admits he does not have specialized experience or knowledge regarding
pipelines or pipeline safety. [Id.].
Plaintiff goes on to assert that even if Paull was qualified to render an opinion in the
case subjudice, his testimony must be excluded because it is wholly speculative, unreliable,
unsubstantiated, and lacks a sufficient methodology. [Id.]. More specifically, plaintiff alleges
that Paull’s opinions concerning future development of the Fosters’ property into a residential
subdivision is purely speculative as no steps have been taken concerning the proposed
development. [Id. at 9—10]. Additionally, plaintiff’s claim that Paull’s opinions concerning the
valuation of the property are unsubstantiated and untestable because he fails to identifywith
sufficient particularitythe sales upon which he relied to reach his valuation calculations. [Id.
at 12—13].
Moreover, plaintiff asserts that Paull’s opinions concerning buyerfear, pipeline safety,
and pipeline impacts on property valuations are also inadmissible because they are not
based on market data and instead rely on an impermissible “lot method” valuation. [Id. at
13—15]. Plaintiff then contends that Paull’s opinions are otherwise irrelevant and unhelpful
because they will not assist the trier of fact in determining the value of the property at the time
of the subject taking, and that they will subject plaintiff to unfair prejudice. [Id. at 16—23].
This Court rejects plaintiffs arguments in its Motion in Limine forthe reasons asserted
in defendants’ Omnibus Response. First, this Court notes that Paull is qualified to proffer
expert testimony concerning the fair and reasonable market value of the portion of the Fosters’
properties remaining afterthe subject taking because he is an expert in selling property in the
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Ohio Valley. As identified by defendants, Paull testified that he performed a comparative
market analysis on the subject property and computed the sales value of the property.
[Dcc. 84-5 at 19:17—20:12]. Further, Paull explained that the purpose of the comparative
market analysis is “to get an idea of what to list a property for,” to “put the property on the
market.” [Id. at 20:13—20:18]. Paull also opined that plaintiff significantly devalued the subject
property by running a gas line through the majority of the lots. See [Doc. 84-2 at 2]. Paull
continued to explain that “between five and nine lots are undevelopable, and the other lots are
compromised by their close proximity to this gas line,” rendering the development of the
property non-feasible. [Id.].
It is entirelywithin Paull’s scope of expertise to testify in front ofajury concerning what
he believes the subject propertyto be worth based on his personal knowledge of Ohio Valley
real estate. This includes testimony concerning Paull’s perceived valuation of the property if
it were to be developed as planned in the Breckenridge Plat showing a proposed twenty-two
lot subdivision. Furthermore, Paull is entitled to testified concerning his opinions on whether
the existence of the pipeline will devalue the subject real estate as it exists currently.
It is abundantly clear that plaintiff contests and disagrees with Paull’s opinions
concerning the property and whetherdefendants actually had a cognizable plan to develop the
property priorto the subjecttaking. However, the proper course is notto preclude testimony
to this effect through a motion in limine. Rather, Paull will be permitted to testify before the jury
and will be subject to cross-examination concerning his opinions. Additionally, the jury will
hear testimony from plaintiff’s expert, who will in all likelihood present a starkly differing
account concerning the property’s valuation. It is within the purview of the jury to hear the
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evidence presented and weigh its credibility and methodology used to ascertain value. The
jury can then considerthe conflicting accounts and determine whose value is more accurate
based on a consideration of the competing testimony, including he testimony concerning the
purported plan for property development, viewed as a whole. Accordingly, this Court will deny
the Motion in Limine.
II.
Plaintiffs Motion for Summary Judgment
A.
There are genuine issues of material fact with respect to the Fosters.
In support of its Motion for Summary Judgment, plaintiff first asserts that there is no
genuine issue of material fact as to the valuation of just compensation because Paull’s
testimony is inadmissible. [Doc. 81-1 at 12]. This Court rejects that argumentforthe reasons
contained in the discussion on plaintiff’s Motion in Limine.
Next, plaintiff contends thatthere is no genuine issue of material fact concerning the
valuation ofjust compensation because the Fosters’ landownertestimony is also inadmissible
as irrelevant and not genuine. [Id. at 12]. According to plaintiff, the Fosters failed to provide
anytestimonyfrom their own perception regarding compensation, but “instead parroted the
opinions of their proffered expert or offer purely speculative statements regarding potential
‘lost’ developments.” [Doc. 85-1 at 13]. This Court disagrees.
The common law presumes that a property owner is “competentto testify on the value
of his own property.” Christopher Phelps & Assocs., LLC v. Galloway, 492 F. 3d 532,542
(4th Cir. 2013). Here, Kerry Fostertestified that he personally learned that his neighbor sold
a half-acre property adjacent to his own for approximately $70,000.00. [Doc. 84-6 at
33:18—34:3]. Kerry Foster further expounded on the differences between his property and his
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neighbors stating that his property has a better view of the Ohio River Valley. [Id. at
34:4—34:101. Further, Kerry Foster opined that based on the money his neighbor had
received, if he were to divide up his property and sell lots, he would have “88 half-acre lots at
$70,000.00.” [Id. at 34:14—34:161. This seems to be a stretch. However, it is not for this
Court to decide this contested issue of material fact. Rather, Kerry Fosterwill be permitted
to testify as to his own perception of the valuation of his own property, subject to crossexamination, and the jury can considerthe credibility of his proffered testimony concerning the
same.
B.
There are no genuine issues of material fact with respect to the other
defendants.
Plaintiff also asserts it is entitled to summary judgment on its claims concerning the
other defendants, which include the coal owner and the other interested owners as previously
defined. See [Doc. 85-1 at 191. This Court agrees. In this instance, the other defendants
have failed to file an answerorotherwise defend this matter. Moreover, the otherdefendants
have failed to designate an expert witness to testify regarding the value of the easements and
have offered no evidence of the amount of just compensation due to them. As noted by
plaintiff, all discovery deadlines have passed in this matter, including the date for the other
defendants to disclose an expert witness. Therefore, the other defendants have no evidence
with which to meet their burden of proof, and summary judgment must be granted to plaintiff
insofar as its claims concerning the other defendants.
With respect to the amount of just compensation owed to the other defendants, this
Court will award nominal damages to the other defendants in light of the other defendants’
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failure to contest the condemnation or offer a valuation. As to the other interest owners’
interests, they have not filed any answers or otherwise defended this matter, nor have they
offered any expert disclosures or other admissible evidence in this matter. Accordingly, this
Court will award the other interest owners nominal damages.
Further, as to the coal owner’s interests affected by the easements, the only offered
evidence before this Court indicates that the coal reserves underlying the subject property
have no development potential and no appreciable value. See [Doc. 85-1 0]. Therefore, the
total measure of just compensation to be awarded to the coal owner is nominal only.1
CONCLUSION
For the reasons contained herein, Plaintiff’s Motion to Exclude Expert Witness
Testimony of Lee C. Paull, IV [Doc. 84] is DENIED, and Plaintiff’s Motion for Summary
Judgment as to Just Compensation Owed to Defendants [Doc. 85] is GRANTED IN PART
AND DENIED IN PART.
Based on the rulings contained herein, the Clerk is directed to DISMISS all remaining
defendants (other than the Fosters) and unknown owners WITH PREJUDICE.
It is so ORDERED.
The Clerk isfurtherdirected to provide copies of this Memorandum Opinion and Order
to all counsel of record herein.
1Given the ongoing litigation concerning the Fosters’ alleged damages, this Court will
issue a final order at the conclusion of this suit articulating all specific damages awarded to
each defendant upon the final outcome of this suit.
16
Case 5:18-cv-00068-JPB-JPM Document 90 Filed 08/05/21 Page 17 of 17 PageID #: 1548
DATED: August
2021
N BAILEY
UNITED STATES DISTRICT JUDGE
17
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