Free Motion in Limine - District Court of Arizona - Arizona

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John A. Weil, Bar No. 005621 Lori A. Butler, Bar No. 016139 W EIL & W EIL, PLLC 1600 S. Fourth Avenue, Suite C Yuma, Arizona 85366-1977 Tel: (928) 783-2161 Fax: (928) 783-6082 Attorneys for Defendants Curtis UNITED STATES DISTRICT COURT

7 DISTRICT OF ARIZONA 8 9 10 11 12 13 14 15 16 17 18 Defendants, Glen G. Curtis, Trustee of Curtis Family Trust and Sam Perricone, 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 M ary Louise Perricone; et al., Defendants. DEFENDANTS' MOTION IN LIMINE (DEFENDANTS' FINANCIAL STATUS) United States of America, Plaintiff, CIV-03-2006-PHX-SRB

19 Trustee of Amended and Restated Declaration of Revocable Trust of Sam Perricone 20 and Mary Louise Perricone ("Defendants Curtis"), herein move in limine to limit the 21 evidence presented at trial. This motion is supported by the attached Memorandum of 22 Points and Authorities. 23 24 25 26 27 28 By: /s/ John A. Weil John A. Weil Attorney for Defendants DATED this 10th day of July, 2006. WEIL & WEIL, PLLC

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Memorandum of Points and Authorities INTRODUCTION Defendants Curtis move the Court, in limine, for an order prohibiting the

4 introduction of evidence by Plaintiff, or reference in any manner during the course 5 of trial, to financial status and business activities of Defendants Curtis and their 6 family members. 7 8 FACTUAL BACKGROUND This is a condemnation action for the acquisition by the United States of the

9 Property described in the Complaint and previously owned by Defendants Curtis in 10 Yuma, Arizona. 11 The issue to be determined at trial is the just compensation to be paid by

12 United States to Defendants Curtis for all of their interest in the Property. 13 This case has a companion case, United States v. 33.845 Acres of Land, et

14 al., Case No. CIV-03-2007-PHX-SRB. The parties have conducted discovery on 15 both cases simultaneously. 16 In United States v. 33.845 Acres of Land, the property acquired by the

17 United States was owned by G-12, L.L.C. The membership of G-12, L.L.C. 18 consists of the twelve children of Glen G. Curtis. Glen G. Curtis is one of the 19 Defendants in the instant case. 20 It is Defendants Curtis' belief that Plaintiff will seek to introduce evidence

21 of financial status and business activities of Defendants Curtis, G-12, L.L.C. and 22 their family members. This information and belief is gleaned from the inquiries of 23 Plaintiff's counsel at the deposition of Glen T. Curtis. 24 Glen T. Curtis is the son of Defendant Glen G. Curtis. Glen T. Curtis will

25 testify at this trial on behalf of the owners in the instant case as well as on behalf of 26 the owners in United States v. 33.845 Acres of Land. Glen T. Curtis is the Manager 27 28 2

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1 of G-12, L.L.C., and is one of the twelve members of this company. 2 On April 4, 2006, Sue Klein deposed Glen T. Curtis in both condemnation

3 cases. Glen T. Curtis is a real estate broker. Mr. Curtis explained that in this 4 position he is responsible for subdivision sales and buying and selling real property. 5 He purchases all types of properties, but indicated that he primarily purchases 6 developmental land or farm land to be converted to developmental land. Deposition 7 of Glen T. Curtis, p.15 8 9 10 Ms. Klein questioned Mr. Curtis regarding "what trusts and LLC's and/or other entities [] you are involved with that are related to your family."

11 Depo., p. 17. She also asked questions regarding business activities and number of 12 properties owned (30-40 properties) between Curtis entities and Sam Perricone, 13 who is one of the Defendants in this case. See Depo., p. 17-19. None of these 14 business activities are relevant to the issue of just compensation in this case. 15 Ms. Klein inquired as to names of LLCs, partnerships or corporate entities in

16 which Mr. Curtis is involved. Depo. pp. 21-22. Mr. Curtis was also questioned as 17 to entities in which his family members are involved, the business activities of 18 those entities and the properties owned. Depo., p. 22-43. These entities hold 3,000 19 to 4,000 acres of property, including subdivisions and ranches. Depo., p.25-27. 20 The entities own and operate packing plants as well. Depo., p.42-43. Again, none 21 of these business activities are relevant to the issue of just compensation. 22 The Curtis family is involved in numerous business activities and has

23 substantial debt related to those activities. Any evidence regarding the financial 24 status and business activities of the Curtis family is not relevant to the issue of just 25 compensation. If this evidence is introduced at trial then Defendants Curtis will 26 suffer prejudice because it may cause the jury to be biased against Defendants 27 28 3

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1 Curtis due to alleged wealthy financial status as shown by ownership of numerous 2 entities and properties. As stated, the business activities of the Curtis family also 3 incur substantial debt but Defendants Curtis should not be forced to provide 4 business debt information to contradict any prejudicial evidence of wealth 5 introduced by Plaintiff. None of the evidence on wealth or business activities of the 6 Curtis entities is relevant to the issue of just compensation. 7 Defendants Curtis will intentionally limit their direct examination to facts

8 that have nothing to do with their ownership of other properties. In addition, 9 Defendants Curtis are not claiming special damages of business loss on the part of 10 any of the entities. Furthermore, there is no issue regarding crops, trees or farming 11 on the other properties owned because the highest and best use of the Property in 12 this case is industrial property use and not agricultural use. 13 In sum, evidence of the entities owned by the Curtis family, the financial

14 status of these entities, and the business activities of these entities are not relevant 15 to the issue of just compensation and should be excluded from trial. 16 17 LEGAL ANALYSIS Argument and evidence as to the financial status of the parties in eminent Argument or evidence as to the wealth of the

18 domain proceedings is improper.

19 landowner is given solely for the purpose of influencing the jury to grant a small 20 award. 21 There are two reasons to preclude evidence of financial status. First,

22 evidence as to the wealth of the landowner is prejudicial. Second, financial status 23 is not relevant to the issue of just compensation, i.e., valuation and damages. 24 The general rule is that during trial no reference shall be made to the wealth

25 or poverty of a party. Brough v. Imperial Sterling, Ltd., 297 F.3d 1172, 1178 (11th 26 Cir. 2002); see Eisehauer v. Burger, 431 F.2d 833, 837 (6 th Cir. 1970)(evidence of 27 wealth or poverty of a party inadmissible in negligence action); Tesser v. Board of 28 4

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1 Educ. of City of School Dist. of City of New York, 370 F.3d 314 (2d Cir. 2004) 2 (evidence of wealth inadmissible in trials not involving punitive damages); 3 Whiteley v. OKC Corp., 719 F.3d 1051 (19 th Cir. 1983)(inadmissible evidence 4 includes financial condition of party). 5 Courts have held that argument or evidence presenting the financial status of

6 the parties in an eminent domain proceeding constitutes prejudicial error. See 7 Pryor v. Limestone County, 144 So. 18 (1932); Chicago v. Martin, 186 N.E.2d 228 8 (1962); Schober v. Milwaukee, 119 N.W.2d 316 (Wis. 1963); Masson v. Kansas 9 City Power & Light Co., 642 P.2d 113 (Kan.App. 1982); Jack Loeks Theatres, Inc. 10 v. Kentwood, 474 N.W.2d 140 (Mich. App. 1991); M&A Electric Power 11 Cooperative v. True, 480 S.W.2d 310 (Mo. App.); see also 21 A.L.R.3d 936, 12 Propriety and effect of argument or evidence as to financial status of parties in 13 eminent domain proceeding, § 4. 14 The impropriety of argument and evidence of the wealth of the landowner

15 and its probable harmful effect against the landowner in the mind of the jury are 16 manifest, since whether the landowner was wealthy or poor could not be considered 17 in determining the value of the property taken from him. Pillot v. Houston, 51 18 S.W.2d 794 (Tex Civ App. 1932), disapproved on other grounds State v. Meyer, 19 403 S.W.2d 366 (Tex.). The argument was calculated to prejudice the minds of the 20 jury against the landowner. Id. 21 Defendants Curtis contend that evidence or argument of their interest in

22 business entities and the financial status of those entities, including ownership of 23 property, should be excluded by the Court due to its prejudicial effect on the jury. 24 Furthermore, this evidence or argument is not relevant to the issue of just

25 compensation, valuation of the Property and damages. 26 As stated above, Mr. Curtis' knowledge of value of the Property is based

27 upon his experience as a real estate broker, and not due to his ownership or his 28 5

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1 family's ownership of other properties. 2 The issue of relevance as to evidence of wealth and other business entities is

3 whether this evidence has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable 5 or less probable than it would be without the evidence." Federal Rules of Evidence Rule 401. 6 The parties agree that the sole issue at trial is just compensation to be paid to 7 Defendants Curtis. In this case a determination of just compensation includes 8 evidence of valuation of the Property and damages to landowners. There is no 9 claim of damage to other businesses of the Curtis family and thus, argument or 10 evidence of the Curtis family entities or financial condition is not relevant. 11 Lastly, even relevant evidence may be excluded by the trial judge if its 12 probative value is substantially outweighed by the danger of unfair prejudice. Rule 13 403, Federal Rules of Evidence. As set forth above, this evidence is prejudicial to 14 Defendants Curtis and should be excluded. 15 CONCLUSION 16 Defendants Curtis respectfully request the Court to instruct the Plaintiff and 17 its counsel not to mention, refer to, interrogate concerning, or attempt to convey to 18 the jury in any manner, either directly or indirectly, any of the above-mentioned 19 facts concerning the Curtis family business entities, activities or financial status. 20 DATED this 10th day of July, 2006. 21 22 23 24 25 26 27 28 6 By: /s/ John A. Weil John A. Weil Attorneys for Defendants WEIL & WEIL, PLLC 4

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