United States Court of Appeals

For the Eighth Circuit

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No. 12-3459

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Southern Club Enterprises, Inc.; 250 Central Avenue, LLC

lllllllllllllllllllll Plaintiffs - Appellants

v.

United States of America

lllllllllllllllllllll Defendant - Appellee

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 Appeal from United States District Court 

for the Western District of Arkansas - Hot Springs

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 Submitted: September 3, 2013

Filed: September 10, 2013

[Unpublished]

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Before WOLLMAN, BOWMAN, and GRUENDER, Circuit Judges. 

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PER CURIAM.

Southern Club Enterprises, Inc., and 250 Central Avenue, LLC (collectively

Southern Club), appeal the order entered after a bench trial, in which the district court

found the United States liable for damages to Southern Club’s business (caused by

a blocked culvert draining water from federal land), but awarded damages in an

amountsignificantly lower than wasrequested. SouthernClub argues that the district
court clearly erred in determining the damages. We remand for reconsideration of

one category of the damages calculation.

We hold that the court did not clearly err in reducing the outside remediation

expenses by 50% based on its finding that some of the business’s embankment had

eroded over time. Southern Club’s expert testified that he could not determine the

depth of the backyard debris which was “freshly disturbed soil,” and that his

calculation was based in part on speculation. See Gonzalez v. United States, 681 F.3d

949, 952 (8th Cir. 2012) (standard of review); Wilkinson v. United States, 564 F.3d

927, 934 (8th Cir. 2009) (damages are set according to appropriate state law);

Minerva Enters., Inc. v. Howlett, 824 S.W.2d 377, 381 (Ark. 1992) (under Arkansas

law, burden of proving damages rests on party claiming them). Further, we cannot

find that the court clearly erred in reducing the requested damages for the building

contents by 87.5%. While the court did not fully explain the extent of the reduction,

the court noted that some items appeared to have a salvage value that was not taken

into account, and the record did not include evidence of the value of other items

immediately before the damage occurred. See id. at 380-81 (when personal property

is damaged, owner is entitled to recover difference in fair value immediately before

and after damage). Following a careful review of the record, we are not left with a

firm and definite conviction that a mistake has been made. See Kingman v. Dillard’s,

Inc., 721 F.3d 613, 616 (8th Cir. 2013) (under clear-error standard, court will

overturn factual finding only if it is not supported by substantial evidence in record,

it is based on erroneous view of law, or court is left with definite and firm conviction

that error was made).

We agree with Southern Club, however, that the record did not support the

87.5% reduction of the requested amount for building damage. As the court noted,

the applicable measure of damages was the reasonable expense of necessary repairs

to the property. See Morton v. Park View Apartments, 868 S.W.2d 448, 450 (Ark.

1993). Although the court noted that owner Stacy Roberts had not testified about

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how much time or money he had spent making repairs, or the extent of future repairs

he intended to make, Southern Club provided an appropriate measure of building

damage through the detailed testimony of insurance adjuster Adam Jones, who

estimated the flood loss using software widely used in the industry, and the

government did not provide an alternative method of estimating the damage. Further,

Southern Club should not be penalized for not having the funds to make some of the

repairs that were necessary to restore the property to its former state. If the court

believes that some reduction in the amount for building damage is appropriate, the

court should specify how the requested amount is overstated and why any alternative

measure of damages should be used.

Accordingly, we affirmthe district court’s reduction in the outside remediation

and building contents expenses; we reverse the reduction in the building damage

expenses; and we remand for further proceedings consistent with this opinion.

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