United States v. 2.739 Acres of Land , 609 F. App'x 436 ( 2015 )


Menu:
  •                                                                             FILED
    NOT FOR PUBLICATION                               JUL 01 2015
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No. 13-15953
    Plaintiff - Appellee,              D.C. No. 4:09-cv-00488-AWT-
    DTF
    v.
    2.739 ACRES OF LAND, more or less,               MEMORANDUM*
    situated in the City of Nogales, County of
    Santa Cruz, State of Arizona, and HOLY
    CROSS HOSPITAL, INC.,
    Defendants - Appellants.
    Appeal from the United States District Court
    for the District of Arizona
    A. Wallace Tashima, Senior Circuit Judge, Presiding
    Argued and Submitted June 11, 2015
    San Francisco, California
    Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN,** Senior
    District Judge.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
    U.S. District Court for the Western District of Washington, sitting by designation.
    Page 2 of 5
    This is a matter in which Appellants contest the valuation of land being
    condemned by Appellee. The issues on appeal involve the district court judge’s
    rulings on the admissibility of certain testimony and appropriateness of two
    proposed jury instructions.
    1. The district court did not abuse its discretion in admitting the testimony
    of Philip Aries, a real estate broker but not an appraiser, as to the value of the
    subject property. Holy Cross’ own real estate broker, Gabriel Gastelum, also
    testified as to the value of the property, and Aries’ testimony was elicited as a
    response. Any issues with respect to Aries’ qualifications thus apply to both
    parties’ experts. See United States v. 4.85 Acres of Land, 
    546 F.3d 613
    , 617 (9th
    Cir. 2008) (requiring prejudice to reverse evidentiary rulings).
    Judicial estoppel does not apply. The government’s opposition brief
    promised that Aries would not testify as to the “value of the subject property in the
    before and after condition,” and at the motion in limine hearing, the government
    promised that “Aries will not testify as to an ultimate opinion of value. He’s not
    going to say that the property is worth a dollar a square foot or place some value on
    the property.” Aries did not offer a before-and-after valuation at trial. Aries did
    assert a valuation of $1 per square foot, but he at first appeared to discuss only the
    approximately $1 per square foot price of a previous sale of Holy Cross property,
    Page 3 of 5
    and he later applied this value to the subject property only in response to a question
    concerning Gastelum’s $2 to $2.50 valuation. The government gained no unfair
    advantage from the $1 valuation, because the government had asserted, at the
    motion in limine hearing, that Aries’ opinion was that the bulk of the land “isn’t
    worth the cost of improvement” at all. Cf. Hamilton v. State Farm Fire & Cas.
    Co., 
    270 F.3d 778
    , 783 (9th Cir. 2001). Aries’ opinion that the hospital property
    was “basically useless” had previously been disclosed.
    Any error that may have resulted from admission of Aries’ undisclosed
    calculations supporting his opinion of the property’s value was not prejudicial.
    Aries’ opinion that the land was worthless was also supported by his statements
    regarding the difficulty of access to the subject property and potential Clean Water
    Act permitting issues associated with access.
    2. The district court did not abuse its discretion in admitting Aries’
    testimony about the IHOP sale. That sale was not used as a comparable, and no
    prejudice would have resulted if it had, given its $12 per square foot sale price.
    3. Holy Cross argues that testimony regarding Holy Cross’ earlier sale to
    the Arizona Department of Transportation (ADOT) and ADOT’s sale to the
    General Services Administration (GSA) should have been excluded because of the
    buyers’ condemnation powers. However, it was not an abuse of discretion to admit
    Page 4 of 5
    the sale to ADOT, because that sale was not used as a comparable and was instead
    offered to rebut testimony that Holy Cross was reluctant to sell its property. That
    sale was properly disclosed in a letter by Aries that Holy Cross attached to its
    motion to exclude Aries’ testimony. It was also not an abuse of discretion to admit
    the sale to GSA, given the government’s evidence that the sale had been voluntary.
    See United States v. 10.48 Acres of Land, 
    621 F.2d 338
    , 339 (9th Cir. 1980).
    4. The district court did not abuse its discretion in rejecting Holy Cross’
    proposed Jury Instructions Nos. 6 and 7. Holy Cross argues that the jury should
    have been instructed that Holy Cross’ sale to ADOT and ADOT’s sale to the GSA
    might have been impacted by condemnation blight. But the proposed instructions
    are not responsive to that concern, because they instruct the jury to consider the
    potential impact of condemnation only on the valuation of the subject property, not
    on that of comparable sales.
    5. The district court did not abuse its discretion in allowing Jay Vance to
    calibrate his valuation by considering differences in development costs between the
    comparable and subject properties. See United States v. 100 Acres of Land, 
    468 F.2d 1261
    , 1266 (9th Cir. 1972) (allowing consideration of selling, advertising,
    development, and other expenses to ensure that comparable sales were indeed
    comparable). The district court also properly found that Vance had not double-
    Page 5 of 5
    counted development costs, but had instead deducted $1 per square foot in addition
    to the previous reduction to account for the subject property’s comparatively
    greater topography issues.
    AFFIRMED.