Free Order on Motion in Limine - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 192.019 Acres of Land, et al., 13 Defendants. 14 15 United States of America, 16 Plaintiff, 17 vs. 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-02006-SRB

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

United States of America, Plaintiff, vs.

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

No. CV03-2006-PHX-SRB ORDER

No. CV03-2007-PHX-SRB

33.845 Acres of Land, et al., Defendants.

Pending before the Court are three Motions in Limine taken under advisement at the time of the Final Pretrial Conference held on July 24, 2006. The Court now rules on each of these motions.

Document 146

Filed 08/11/2006

Page 1 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

I. Motion in Limine Regarding Prices Paid For Similar Property The United States moved in limine for the Court to preclude the Defendants from introducing evidence of prices paid by the United States for similar properties in the project area. Defendants objected conceding that the purchases are not substantive evidence of comparable sales but suggesting that the Government has opened the door for the admission of this evidence because of the alleged utilization of these transactions by the Government's expert. The Defendants also suggest that the recent trend in the case law is to admit evidence of these transactions with a condemning authority. In support Defendants cited cases from 1929, 1960, 1967, 1971, 1973, and 1982. None of these cases were from the Ninth Circuit. In support of their motion the United States cites United States v. 10.48 Acres of Land, 621 F.2d 338 (9th Cir. 1980). In that case the court held that the district court had not abused its discretion in sustaining objections to the admission into evidence of the prices paid by a condemning authority as part of comparable sales. The Court noted The price paid by a condemnor in settlement of condemnation proceedings or in anticipation of such proceedings is inadmissible to establish value of comparable land, as 'such payments are in the nature of compromise to avoid the expense and uncertainty of litigation and are not fair indications of market value.' (citations omitted). 621 F.2d at 339. Despite what Defendants characterize as a recent trend to admit such evidence, in 1997 the Court of Appeals cited with approval U.S. 10.48 Acres of Land in U.S. v. 4.59 Acres of Land, 109 F.3d 1493, 1498 (9th Cir. 1997) finding that the district court properly granted the Government's motion in limine to exclude from evidence prices paid by the Government for properties similar to those condemned. IT IS ORDERED granting Plaintiff's Motion in Limine Regarding Prices Paid for Similar Property. (CV03-2006 doc. 128 and CV03-2007 doc. 122). Defendants will not be permitted to offer in their case in chief evidence of the prices paid by the Government for other property condemned for the expansion of the Yuma Marine Corp. Air Station. If Defendants believe that testimony is offered at trial by the Government that opens the door to the admission of this evidence, defense counsel may notify the Court about the evidence

-2Case 2:03-cv-02006-SRB Document 146 Filed 08/11/2006 Page 2 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

it believes the Government offered. At that time the Court will consider whether the Government's expert can be cross-examined or a rebuttal expert called to discuss these sales. II. Motion in Limine to Exclude Offers to Purchase The United States asks that the Defendants be preluded from introducing into evidence offers they may have received to purchase the subject property. At the time of his deposition, Glen T. Curtis testified about an offer that the Dune Company had made to purchase the property. He did not testify that there was a contract to purchase the property and only stated that the asking price was $25,000.00 an acre and the parties were in the due diligence period when they learned that the Government was planning to acquire the property. Defendants concede that offers to purchase should not be admitted but argue that the transaction referenced in Glen T. Curtis' deposition was an actual contract to purchase the property subject to re-zoning. In a declaration attached to the opposition, Mr. Curtis describes the contract and the re-zoning proceedings and acknowledges that he does not have a copy of this alleged contract. Without the signed contract Mr. Curtis will not be permitted to testify concerning the existence of an agreement to purchase the property for $25,000.00 per acre. IT IS ORDERED granting Plaintiff's Motion in Limine to Exclude Offers to Purchase. (CV03-2007 doc. 121). III. Defendants' Motion in Limine (Arizona Board of Appraisal) Defendants request that the Court preclude the United States from inquiring at trial concerning disciplinary actions taken against Defendants' expert Jim L. Sanders by the Arizona Board of Appraisal. The United States opposes the motion and argues that the final order of the Board of Appraisal finding Mr. Sanders in violation of some of the standards listed in Uniform Standards of Appraisal Practice applicable to certified appraisers in Arizona places Mr. Sanders' credibility and qualifications at issue and should be admitted pursuant to Federal Rules of Evidence 607, 608, 702 and 703. The Court has reviewed the Findings of Fact, Conclusions of Law and Order of Probation attached to the United States' response to Defendants' motion. Mr. Sanders was -3Case 2:03-cv-02006-SRB Document 146 Filed 08/11/2006 Page 3 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

found to be in violation of A.R.S. § 32-3631(6) and (7). They are violations of one or more of the standards of the development or communication of appraisals and negligence or incompetence in developing an appraisal, in preparing an appraisal report, or in communicating an appraisal. It appears to the Court that the Board did not conclude that Mr. Sanders was incompetent but only negligent in connection with the appraisal reports considered by the Board. The Conclusions of Law noted that conduct of an appraiser is negligent if it falls below the recognized standard of care of good appraisal practice. The Order of Probation orders Mr. Sanders to complete 40 hours of qualifying education in report writing and 15 hours in highest and best use. While on probation Mr. Sanders was restricted from acting as a supervising appraiser for other appraisers and from teaching appraisal related classes and from acting as a mentor. He was not restricted from doing appraisals. From the information submitted by Defendants the probationary period is over and the requisite classes have been completed. The Court rejects the United States' argument that disciplinary proceedings before the Board are admissible on the issue of Mr. Sanders credibility under Rule 607 and 608. There is no hint in any of the findings and conclusions of the Board that there was concern about Mr. Sanders' character for truthfulness or untruthfulness or that the matters at issue involved truthfulness or untruthfulness. Although the Board found Mr. Sanders violations to be Level III violations and Level III violations can include minor violations of ethics there is no suggestion in the Board's finding that it found ethical violations. The violations found by the Board related only to the credibility of the assignment and not the credibility of Mr. Sanders. The findings by the Board and the resulting discipline are arguably admissible concerning the qualifications of Mr. Sanders as an expert. His being found to have been negligent in connection with another assignment and having been instructed to take classes in report writing and highest and best use, might be relevant to whether he is the best qualified of the experts at trial. The Court finds this arguable relevance marginal at best and believes the evidence should be excluded pursuant to Rule 403. Its probative value is substantially outweighed by the danger of unfair prejudice. Moreover, its admission would -4Case 2:03-cv-02006-SRB Document 146 Filed 08/11/2006 Page 4 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

confuse the issues before the jury and would result in a mini-trial on a collateral issue that would require a substantial amount of time. If the Court were to admit this evidence Mr. Sanders would be entitled to give a full explanation of the circumstances leading to the violations that were found together with his view of the reasons these complaints were made. The technical nature of the errors in the reports would be needlessly confusing to the jury. The report written by Mr. Sanders and the reviews of two other reports were found to contain negligent errors that the United States has not suggested are errors repeated in the report prepared for this case. IT IS ORDERED granting Defendants' Motion in Limine (Arizona Board of Appraisal). (CV03-2006 doc. 125 - CV03-2007 doc 117).

DATED this 11th day of August, 2006.

-5Case 2:03-cv-02006-SRB Document 146 Filed 08/11/2006 Page 5 of 5