my name is mark demarest i represent the defendant appellant karl thomas in this matter i'd like to reserve three minutes for rebuttal this is the case where the tennessee valley authority condemned to an easement to install a power line across our client easement across one point seven two acres of land and we had a trial in front of the magistrate judge to determine the amount of just compensation to be paid to the property o excluded but our client who is the property owner also has his own expertise he has other property in businesses in coffee county tennessee which gives him expertise and he has also been involved in rezoning property coffee county and is the owner of several hotels around the country and has been involved in developing hotels present the starting point is that the as an expert witness i believe he has expertise honor is not a retained expert but in condemnation cases it's well recognized that the property owner can testify as to the value of the property and the effect of an easement across the property on the value and and about the background and knowledge just just because he's a property owner doesn't have the right to express an opinion side is field of expertise that i just restrung your honor there's there's case law dating back decades that that the owner of a property has the right to testify about the value of that property i think that's well established whether or not even if your party in the case i don't agree with it your honor i think that that in the case of of property value different from a lot of other situations there's a lot of case law that the property owner can testify and give opinions as to the value in addition to that mr thomas in this case had particular expertise but the i think that my starting point here your honour's is that we have an expert witness who testified and appraise r who testified on behalf of the t v and essentially what the magistrate judge said was that because we didn't have a paid appraiser on the other side that there was nothing for the jury to decide in the case the case law indicates that a jury is not required to accept the testimony of an expert witness and here we cross examined the expert witness and gave the jury reasons to question number one his impartiality number two his conclusions that he reached that there was a twenty five percent diminution in value of the one point seven two acres and that the easement had zero effect on the remainder of the property and we believe that that the decision the magistrate judge erred by taking those questions for the jury the jury was not required to accept that expert witnesses testimony they were they were allowed to evaluate his testimony evaluate his credibility and they could have decided for example that the one point seven two acres was entirely diminished in value and if they had done that that would have resulted in even if you accepted the appraiser's valuation of six thousand dollars per acre as egger cultural land would have resulted in about a one thirty increase of the amount of compensation over what the district court awarded live put on any evidence at all as to the before versus after a value of the property no not not in that sense your honor but that's not the only method by which property can be valued so did we did we have an expert witness that said you know we different testimony than the appraiser about before and after no but we did strongly cross examine their appraiser and i think indicated several flaws in his analysis which we believe that the jury should have been allowed to consider for you for example the appraiser acknowledged that this was a permanent easement and that the t v a could have done and has the right to do more within that easement area than it is actually done in he he he took some pictures and said well i don't think these power lines look too bad but he also acknowledged that that the t v it would have the right to put ten fifteen twenty fifty one hundred more power poles in that he's meant in that clearly would affect the value of the property because one of the things that this appraiser said in the board before and after he said this property is fifteen percent more valuable than the comparable properties because it has a view of from the highway and there billboards on the property you know that debt produce rental income and in the so he said on the one hand this property is more valuable because it's located next to the interstate highway between chattanooga nashville at the same time he said that that the easement which affected that view had no or the government the demolition of i guess yeah that's an interesting question judge and we actually talked about in the tri don't think that's clearly established in the law but i also don't think it makes any difference your honor you're the one requesting th e compensation for the taking right now the constitution requires just compensation and the question is what is the proper amount ok i can see that it's your burden to establish the proper amount or just compensation i do kind of mission cases are very unusual judge griffin and i don't think it's not clearly established as to who bears the ultimate burden persuasion and so mean well you have the burden of proof and burden of persuasion assuming it's your burden which i always assumed it was even if you completely impeached the government expert  and so there is no expert at all there is no testimony as to the diminution that you mean how can you prove how can you go to the jury just going to let the jury guess what the just compensation was worth six thousand dollars per acre even if the jury had accepted they had they could have determined based on the other than evidence in the record that they thought that there was more than a seventy five percent diminution in value of the  of one point seven two acres and that there was some effect on the remainder of the property because there was a face if you don't have any expert testimony they just allowed to guess they can base that on the evidence in the record what evidence is there that if you don't have you don't have experts either way out of how do they base the verdict well let me say first of all that this sort of comes back to your question about do we know who is our client an expert our client testified let's talk that's what we're left with is your client lost money that's the only way that the jury could have a reasonable basis for their no i think the jury is not required to just accept at face value the ex evidence to support a verdict ok well let's let them speculate and guess can't can we well the question is then is depending on what verdict they come back with it may be a verdict that the trier the judge or the the judge attorneys is within the range of the evidence if they came back with five million dollars i would say that since we're not supported by evidence they came back with twenty thousand dollars one hundred thousand dollars i believe that there's evidence in the record that would support such a verdict let's talk about the one point seven two acres our client testified as to how he believed that you know why he believed that the restrictions of the easement essentially took all the value of the one point seven two acres the appraiser said it took seventy five percent so the jury could decide somewhere in there they could say that based on the scope of the easement the fact it was permanent our client's testimony that he really can't the that one point seven two acres for anything but he still has to maintain it he still has to pay the property taxes he still has to ensure that the jury could have decided that that one point seven two acres was totally taken based upon the evidence and therefore even if they accepted the appraiser's testimony that the land was only worth six thousand dollars an acre they could have concluded that the amount of just compensation was insufficient  were no but you could have put potentially put a dish no billboards or different sizes you know there are a number of a number of issues that the jury could have taken into consideration what we're really saying alternately here is that what the what the magistrate judge did was to accept at face value the testimony of an expert witness whose opinions we believed were undermined by cross examination and didn't allow the jury the trier of fact to decide whether they believed that expert witness or not that that essentially is the crux of the argument the other issue is  know thank you in terms of the exclusion of our expert is his testimony was limited in scope to whether the presence of the electric transmission lines is high voltage lines  essentially prohibited the or and negatively affected and effectively prevented the use of this property for a hotel and he had the expertise to give such an opinion based upon his experience in the hotel industry and we believe that we are prejudiced by his not being allowed to give that testimony our client or his testimony provided the rest of the story about the alternative ruling by the district court that your expert maybe you didn't comply  army it is your honor but it but it's not it's a narrow conclusion it's a narrow what he's essentially saying is i'm an expert in the hotel industry i've done fifty feasibility studies i run hotels all over the country  have authored a book on feasibility studies i understand what the requirements are for a hotel and that this the presence of this high voltage power line along the hotel makes this not a viable site was his testimony it wasn't  a situation that required a fifty page report it was a very narrow opinion based upon his experience well the district judge ruled that report didn't comply with the court  is about the burden of proof in a condemnation matter the law is very well established going back all the way to the supreme court's decision and united states ex real t v versus paulson in one thousand nine hundred three that the landowner does in fact have the burden of proof in a condemnation action and actually in relation to the question about what is the scope of allowable testimony for a landowner that was discussed in the opening that's actually a very interesting question because what the advisory comments to rule seven two to do say is that a landowner is permitted to testify as to land value and that's a can two seven o two type testimony however i think it's a very different question as to whether a landowner is allowed to hold forth on various and sundry topics which actually happened here with that landowner as here has not been disclosed as a twenty six a to c witness and there's been a tory that they rely on an expert testimony and i think some guidance on this point would would be very helpful for little gains in condemnation proceedings because it is an issue that often arises is what is the proper scope for a landowner to address also wanted to address a point that was raised about whether or not the jury could could have concluded that the interest was totally taken one hundred percent taken here this is a partial takings case and going all the way back to the supreme court's decision in the united states versus cress the court said that if there's any substantial value left in  the interest then it is treated as a partial takings case and therefore one hundred percent damage cannot be accorded the third point i would make is that in answer to the question i believe judge gilman asked was whether there was before and after evidence from the land value of land after the taking so that has been held by this court i would i would also just briefly mention the billboard issue that did come up at trial but there was no evidence put on by the landowner as to what value or what damages should be for the billboard issue so we argued in our brief that that issue has in fact been waived on appeal under thurmond versus yellow freight and even if it had there was testimony at trial from from the landowner himself and from the government's expert that the billboards in fact had not been taken they're still sitting there today and as a matter of tennessee law they cannot be expanded in any way so what i think is very helpful here in the court's analysis of all the issues before today is the supreme court's decision in the united states versus reynolds that is really the lens through which these issues must be analyzed and in riddles what the court said was that except for the single issue of just compensation all of the issues factual and legal or for the trial judge the court went on to point out that the jury's role is constrained to the narrow issue of determining just compensation within the ground rules established by the trial judge the court said that in a condemnation proceed in a trial judge occupies a much broader role then in a conventional jury trial setting in here the second fundamental error with appellate court theory is this this notion that on the day the property was purchased it magically transformed into a hope hotel business property despite the fact that the record showed that the landowner the appellant bought a farm and paid farmland prices for it and despite the fact that he purchased the property with knowledge that t v a intended to construct a transmission line and needed the easement right away over the subject property and this erroneous notion permeated this entire case because it resulted in th decisions made by the district court that are before you want to appeal today the first that was alluded to was the decision to exclude the landowners proffered expert mr wilson under under riddles and the decisions of this  court that was well within the the trial judge's gatekeeping function which provides that the trial judge has considerable leeway to either admit or exclude evidence and i would just point the court to the first circuits decision in the thirty three acres case where they said that ga keeping function is particularly pronounced in a condemnation proceeding under reynolds and so here the court found there were two bases for excluding mr wilson both of those were well within the trial court's discretion should be affirmed the second issue before the court today is that is the highest and best use issue whether the district court properly exercised its discretion to preclude the appellant's highest and best use testimony that is the hotel business idea this court in the city is simply a concept whereby the relevant market is determined the supreme court has been very clear that only transferable value is compensable that fair market value does not depend on the landowners particular needs for a property and that value doesn't fluctuate based on the demands of the condom nor or the landowner and so here when we're dealing with a vacant tract of raul land the only thing that matters is what is the fair market value of that roland and so the it doesn't matter who buys it or for what purpose and the district court correctly bought correctly began its analysis with the rule that there's a presumption in condemnation cases that the use as of the date of taking is that propert his and that's us here the evidence was overwhelming that the property was being used for agricultural purposes it was situated in a rural part of coffee county tennessee and there was discussion that it was near the interstate but the closest exit was one of those exit where there are no men it is simply access to a two lane road highway and the evidence also showed a trial that the first thing the landowner did upon purchasing the property was to sign a new three year form lease for the property and to have the property green belted for a lower agricultural tax assessment and so let me ask you land on our purchase of the property knowing that there was going to be a was for continued agricultural purposes and with that highest and best use of the property being used as an agricultural tract the testimony from the government's appraiser was that the easement could continue to be used for that  agricultural purpose though it was that's correct and there and there was ample testimony that that could continue to be farmed and used in that manner yes your honor so here the court based its highest and best use decision on two factors the first was the trial judge found the landowners testimony about the hotel business to be speculative and unsupported by market data that decision is clearly supported by this court's decision in the city of detroit case where in a somewhat analogous fact pattern the landowner there had purchased the property with knowledge  government project that resulted in the condemnation case in the lower court excluded the landowners proposed highs and best use find it unsupported by market data this court affirmed as an exercise of the trial judge with broad discretion under the supreme court's decision and reynolds the second basis for the trial judge a determination here was he found that the proposed use for a hotel was not legally permissible here there was testimony that the property was zone for agriculture or agriculture related purposes and there is simply no testimony from the landowner that that restriction could be removed any time in the reasonably near future and there was no testimony that a variance could have been obtained there is simply no evidence on that point and i would just point to the first circuit decision in the thirty three acres case as being directly on point for that proposition where similar testimony was excluded and so these cases support the trial judge's decision to preclude that testimony from consideration as an appropriate exercise of discretion leslie i would come to the issue of the trial judge's decision to grant the government's motion for judgment as a matter of law he was that is the parent was fully heard on that issue and he had an  option to understand that this was a serious issue even at the close of the government's motion for judgment as a matter of law the trial judge specifically said this is a significant event and there are two issues those two issues are highest and best use and whether the landowner has come forward with any viable evidence any legally sufficient evidence on the issue of valuation and so the landowner was fully apprised of that and hear what the court concluded was the the appellant's testimony and what it cost to park a car and what the court concluded the trial judge concluded was that bore no discernable relationship to the fair market value of land and for that reason and under this court's precedent alluded to earlier that before and after values required which landed or did not offer and this court's precedent that that says that sales of comparable properties are the best evidence of market value there was none of that from the appellate side there was only testimony to that effect from the government's appraiser mr york and so based on that the court concluded that the only legally sufficient evidence was that offered by the government that just compensation should be ten thousand dollars and i would just say under reynolds the supreme court said it is for the trial judge to tell the jury the criteria it must follow and determine what amounts will constitute just compensation so it is the government's position that that decision falls within the ambit of reynolds lastly i would just point out briefly that  as this court pointed out in the city of detroit there's a fairness component to the just compensation clause in the fifth amendment and here that was it hared to with the trial judge's decision to grant judgment as a matter of law because the landowner had purchased the property in december of two thousand and twelve for about forty seven hundred dollars per acre and then the date of taking was about six months later in may of two thousand and thirteen and ultimately the just compensation award was six thousand dollars per acre so the was made whole here and so the trial judge's decision really accords with that principle as set out the city of detroit in conclusion i would like to thank the court for the opportunity to address it here today and would request that the court affirmed the decision to exclude mr reynolds excuse me mr wilson as an appropriate exercise of the court's discretion to preclude consideration of the landowners highest and best use testimony also as an appropriate exercise of discretion and to affirm the decision granting the government's motion for judgment as a matter of law because the only legal as to legally sufficient evidence was that offered by the government's appraiser mr york that just compensation was ten thousand dollars was there any other questions the government rest on the argument think it comes back to my fundamental theme here which is the case law we say to our in our brief that a jury may reject expert testimony even if one contradicted and substitute its own common sense judgement for that of the expert in light of all the evidence in the case the jury in this case wasn't allowed to do that there's also another flaw in the ruling by the magistrate judge which was any one of the components for rule fifty a in a jury trial is to advise the plaintiff if there's a deficiency in the evidence and give them an opportunity to cure that deficiency that did not occur in that case in this case terms of that issue of highest and best use there was evidence in the record that supported a hotel use is highest and best use in our client did have the expertise to give that testimony testified about the visibility of the site from the highway but for this power line the lack of any hotel competition there that the other hotels in the area were old and run down that there were significant demand generators nearby including industrial park an air force base an automotive plant and also a large festival that's held annually called bonna route which brings about two hundred thousand people into the area and he testified the one of these other hotels is in daytona florida and he testified about that what a significant effect the daytona five hundred other you know a one time event per year can have on the viability of the hotel their expert also indicated that he really didn't look into any great degree weather could be used as a hotel or not he simply came to the conclusion that it was it was started as agricultural and that he essentially disregarded all the evidence  that it could be used as a hotel again i think it was a doubt that utilities were a problem water was a problem soil was a problem he assumed that they were judge he didn't do a perfect test for example i mean he didn't he did no investigation is what is the point i'm making is he he came to search certain conclusions but there wasn't any basis for those conclusions and that's why we think that the judge erred in just not letting the jury decide this case that's what should have mean i've not or wait i'm not sure that it that it's i think the two issues are are intertwined that is not i mean the court rule as pacific requirements that must be in reports for an expert testified and the judge here said judge to your expert cannot be permitted to testify as to opinions and conclusions which were not included in his actual report and we weren't asking him to we were asking him to be permitted to testify to exactly what was in his report and in the end the judge concluded that the report was is just go and pointed out it was a short report but it was because it was only on one specific point we were not asking him we were not proffering just testimony come in and say anything about you know to do a feasibility study your demand generators his is he was only going to make the one point that was in his report which was i believe that the presence of this power line disqualifies this as a hotel site based on my experience said that would have been the sum and substance of his testimony