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 (ARIZONA BOARD OF APPRAISAL) 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 exclude 21 evidence presented at trial regarding a complaint pending before the Arizona Board of 22 Appraisal. This motion is supported by the attached Memorandum of Points and 23 Authorities. 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 collateral matter concerning a complaint filed against Jim Sanders before 6 the Arizona Board of Appraisal. 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 Defendants Curtis' expert witness is Jim L. Sanders. Over four years ago

14 Mr. Sanders acted as mentor, under a mentorship program with the Arizona Board 15 of Appraisal, to another appraiser ­ Mr. Benson. Mr. Benson was asked to conduct 16 a review of another individual's appraisal in a bankruptcy case. The appraisal on 17 the other side of the case was prepared by Mr. Sanders. Due to the mentorship 18 program Mr. Sanders would have to sign Mr. Benson's review; this was explained 19 to the attorney in the bankruptcy case and the attorney explained this to the 20 Bankruptcy Court. This fact was fully disclosed. However, opposing counsel 21 believed this to be a conflict of interest and filed a complaint against M r. Sanders. 22 This matter reached the Administrative Law Judge and he ruled that there was no 23 violation of ethics. The ethics issue (the most serious issue) has been resolved. 24 A collateral matter regarding this complaint involves the Administrative Law

25 Judge's decision that because Mr. Sanders did not include a hypothetical condition 26 in his appraisal he had to take a class to obtain resolution of the matter. However, 27 28 2

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1 Mr. Sanders knows that the hypothetical condition was plainly stated in the 2 appraisal and, in order to take the class he must acknowledge the condition was not 3 stated in the appraisal. Mr. Sanders cannot acknowledge what he knows to be false, 4 so he is trying to resolve this final issue with the Arizona Board of Appraisal by 5 their review of the hypothetical condition in the appraisal. 6 Defendants Curtis believe that Plaintiff may attempt to elicit testimony on

7 the subject of the complaint because Plaintiff's counsel questioned Mr. Sanders 8 regarding this matter at his deposition on March 21, 2006. 9 If Plaintiff refers to or interrogates Mr. Sanders regarding this matter then

10 great prejudice will be suffered by Defendants Curtis. This evidence may cause the 11 jury to be biased against Defendants Curtis due to alleged questions regarding the 12 complaint against Mr. Sanders. None of the evidence regarding this complaint is 13 relevant to the issue of Mr. Sander's qualifications as an appraiser or his veracity. 14 15 LEGAL ANALYSIS A party may not inquire regarding an unresolved and disputed administrative

16 hearing matter where no sanctions against the witness have resulted. 17 First, this matter does not reflect on Mr. Sander's qualifications as an

18 appraiser. Under Federal Rules of Evidence Rule 702, in order to qualify as an 19 expert one must possess the "knowledge, skill, experience, training or education 20 relevant to such evidence or fact in issue." United States v. Chang, 207 F.3d 1169, 21 1172 (9 th Cir. 2003). The complaint against Mr. Sanders, with no imposition of 22 sanctions does not reflect on any of the qualification of knowledge, skill, 23 experience, training or education. 24 Second, the unresolved matter is not relevant to this trial. The matter is not

25 probative of truthfulness or untruthfulness. See Federal Rules of Evidence Rule 26 608(b)(permits inquiry, at the court's discretion, into specific instances of witness's 27 28 3

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1 conduct that are probative of truthfulness or untruthfulness); see Ad-Vantage 2 Telephone Directory Consultants, Inc. v. GTE Directories Corporation, 37 F.3d 3 1460, 1464 (11th Cir. 1994)(whether proceeding involves forgery, perjury or fraud). 4 Nor is there any ethical violation, as the Administrative Law Judge has already 5 ruled in Mr. Sander's favor on this issue. Id. (untruthfulness from an unethical act 6 may lead to exception allowing admissibility of act). 7 Furthermore, the accusation in the complaint lacks relevance to survive any

8 balancing test of Rule 403, Federal Rules of Evidence. Any probative value of an 9 alleged act of Mr. Sanders, even with the absence of sanctions, is greatly 10 outweighed by the prejudicial effect it will have on the jury. The jury may believe 11 that because the complaint was brought Mr. Sanders must have engaged in some 12 type of wrongdoing. No jury instruction will be sufficient to outweigh the 13 prejudice of this line of questioning. 14 In sum, the danger is great that the jury will infer more from the

15 investigation at the Arizona Board of Appraisal than was fairly inferable. See Ad16 vantage Telephone Directory Consultants, 37 F.3d at 1464-65 (grievance 17 proceedings by the Florida Bar and accounting institutes, which did not result in 18 sanctions, should have been excluded from line of questioning of expert witness 19 under Rule 403). 20 21 CONCLUSION Based on the foregoing, Defendants Curtis respectfully request the Court to

22 instruct the Plaintiff and its counsel not to mention, refer to, interrogate concerning, 23 or attempt to convey to the jury in any manner, either directly or indirectly, any of 24 the above-mentioned facts concerning the complaint filed against Mr. Sanders in 25 the Arizona Board of Appraisal. 26 27 28 4

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1 DATED this 10th day of July, 2006. 2 WEIL & WEIL, PLLC 3 4 By: 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 /s/ John A. Weil John A. Weil Attorneys for Defendants

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