Free Motion in Limine - District Court of Arizona - Arizona

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PAUL K. CHARLTON United States Attorney District of Arizona SUE A. KLEIN Assistant U.S. Attorney Arizona State Bar No. 11253 Two Renaissance Square 40 North Central Ave., Ste. 1200 Phoenix, Arizona 85004-4408 Telephone: (602) 514-7500 E-mail: [email protected]

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA United States of America, Plaintiff, v. 192.019 Acres of Land, more or less, located in Yuma County, State of Arizona; Glen G. Curtis, Trustee of Curtis Family Trust; Sam Perricone, Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone and Mary Louise Perricone; Earl O. Zion and Esther E. Zion; Yuma County Tax Assessor, Yuma Hospital District No. 1; Yuma County Citrus Pest Control District; Yuma County Pest Abatement District; Yuma County Flood Control District; Farm Credit Services Southwest; Intangible property rights, Yuma Mesa Irrigation and Drainage District; and Unknown Owners, Defendants. The United States requests the Court to preclude defendants from introducing evidence of prices paid by the United States for similar property in the project area, as such evidence is not an indication of the fair market value of the subject property. This motion is supported by the attached Memorandum of Points and Authorities. Respectfully submitted this 10th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein ____________________________ SUE A. KLEIN Assistant U.S. Attorney CIV-03-2006-PHX-SRB

MOTION IN LIMINE REGARDING PRICES PAID FOR SIMILAR PROPERTY

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MEMORANDUM OF POINTS AND AUTHORITIES Defendants list as potential witnesses several Curtis family members and others,

3 specifically Sam Perricone and Robert Woodman, who have knowledge of or 4 participated in sales of other properties acquired by the United States for this project. 5 Additionally, Mr. Sanders includes two sales in the appendix to his report which are 6 sales to the government for this project. (See Exhibit A, Sanders Sales Data). The 7 United States believes some or all of the witnesses may testify to their knowledge, if 8 any, of prices paid by the United States for other properties in the project area which 9 were acquired through direct purchase. This evidence is inadmissible as it is not 10 relevant to the fair market value of the subject property. The project which expanded 11 the Yuma Marine Corps Air Station, encompassed approximately 1,641 acres. The 12 property at issue in this case is for 33.845 acres. The prices paid for properties 13 acquired by the United States without the need for condemnation proceedings are not 14 admissible. 15 "The price paid by a condemnor in settlement of condemnation proceedings or in

16 anticipation of such proceedings is inadmissible to establish value of comparable land, 17 as 'such payments are in the nature of compromise to avoid the expense and 18 uncertainty of litigation and are not fair indications of market value.'" United States v. 19 10.48 Acres of Land, 621 F.2d 338, 339 (9th Cir. 1980)(citing Slattery Company v. United 20 States, 231 F.2d 37, 41 (5th Cir. 1956)(citations omitted)). The trial judge has the 21 discretion to reject such evidence as not relevant to the issue of fair market value. 22 United States v. 10.48 Acres of Land, 621 F.2d at 340. The trial judge may also exclude 23 such evidence if its probative value is outweighed by the risk that its admission would 24 confuse the issues or mislead the jury. United States v. 10.48 Acres of Land, 621 F.2d at 25 340. "Because of the substantial danger in condemnation cases that the jury will 26 consider evidence of the price paid by the condemning authority in a comparable sale 27 on the issue of value, it was within the wide discretion allowed the trial judge to 28
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1 control the extent of cross-examination to limit inquiry into such information." United 2 States v. 10.48 Acres of Land, 621 F.2d at 340, see also United States v. 46,672.96 Acres of 3 Land, 521 F.2d 13, 17 (10th Cir. 1975). Therefore, the price paid by the government 4 for the purchase of other land in connection with a project cannot be received. Such 5 payments are in the nature of a compromise and are not evidence of fair market value. 6 If admitted, sales to condemning authorities may be taken as an indication of fair

7 market value when, in fact, they do not indicate fair market value. A condemnor may 8 be willing to pay more and a landowner may be willing to take less in order to avoid 9 a lawsuit. Transwestern Pipeline Company v. United States, 418 F.2d 15, 18 (5th Cir. 10 1969). "Since a landowner would prefer to reach an agreement rather than be 11 subjected to a lawsuit by a condemnor, a sale to a company possessing the power of 12 eminent domain is more likely to show a compromise value than the true market value 13 of the land. It would also be to the benefit of the company to avoid a time-consuming 14 and asset-wasting lawsuit and, thus, the condemnor, too, is likely to compromise and 15 perhaps pay more than the market value." Transwestern Pipeline Company v. United 16 States, 418 F.2d at 18, see also Nichols on Eminent Domain, § 21.33. 17 As the only issue at trial of this case is the issue of just compensation to be

18 awarded for the subject property, prices paid by the United States as the condemning 19 authority to other landowners should not be admitted as they do not reflect the fair 20 market value of the subject property. 21 WHEREFORE, the United States respectfully requests that the Court preclude the

22 landowners from introducing any evidence of prices paid by the United States as 23 condemning authority to other landowners for this project. 24 25 26 27 28
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Respectfully submitted this 10th day of July, 2006. PAUL K. CHARLTON United States Attorney District of Arizona s/Sue A. Klein

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____________________________ SUE A. KLEIN Assistant U.S. Attorney

CERTIFICATION I hereby certify that on July 10, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants:
John A. Weil Attorneys at Law

9 Weil & Weil 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

10 1600 S. Fourth Ave., Ste. C
Yuma, Arizona 85364
s/Nancy Stotler

_____________________

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