Childers v. United States

In the United States Court of Federal Claims

No. 08-1981

No. 07-4262

(Filed: July 28, 2014)

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NATHAN and DEBORAH *

CHILDERS, et al., *

*

Plaintiffs, *

*

v. *

Motion for Reconsideration; Rule

*

59(a)(1); Fifth Amendment Taking;

THE UNITED STATES, *

National Trails System Act, 16 U.S.C.

*

§ 1241 et seq.; Severance Damages; Loss

Defendant. *

of Access; Sufficient Support for Expert

*

Opinion; Proper Scope of Expert

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Opinion; Fed. R. Evid. 702; Post-Trial

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Admission of Deposition; Fed. R. Civ. P.

CALUSA LAKES COMMUNITY *

32.

ASSOCIATION, et al., *

*

Plaintiffs, *

*

v. *

*

THE UNITED STATES, *

*

Defendant. *

*

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Mark F. (Thor) Hearne, II, Lindsay S.C. Brinton, and Meghan S. Largent, Arent Fox

LLP, 112 S. Hanley Road, Suite 200, Clayton, MO 63105; Debra J. Albin-Riley, Arent Fox LLP,

555 West Fifth Street, 48th Floor, Los Angeles, CA 90013, for Plaintiffs.

Robert G. Dreher and Kristine S. Tardiff, United States Department of Justice,

Environment & Natural Resources Division, Natural Resources Section, 53 Pleasant Street, 4th

Floor, Concord, NH 03301, for Defendant. Carol L. Draper, Lary C. Larson, and Charlotte M.

Youngblood, United States Department of Justice, Environment & Natural Resources Division,

Natural Resources Section, 601 D Street, N.W., Room 3131, Washington, D.C. 20044, Of

Counsel.

_________________________________________________________________

MEMORANDUM OPINION AND ORDER DENYING PLAINTIFFS’

MOTION FOR RECONSIDERATION

_________________________________________________________________

WILLIAMS, Judge.

This matter comes before the Court on Plaintiffs’ “motion under Rule 59 to reconsider

and amend opinion and order.” In this Fifth Amendment taking(s) case, the Court awarded

Plaintiffs compensation in the amount of $5,751,579.73 stemming from the imposition of a

recreational trail across their properties pursuant to the Rails-to-Trails Act.

On reconsideration, Plaintiffs seek an additional award of $1,400,000 - $900,000 in

severance damages to Palmer Ranch Holdings, Ltd. (“Palmer Ranch”) for lost access to

McIntosh Road and $500,000 to JMC-Real Estate Holdings, LLC (“JMC”) for lost access to the

Mission Valley Golf and Country Club (“Mission Valley”).

To prevail on a motion to reconsider or amend the judgment, Plaintiffs must show

extraordinary circumstances that justify the relief sought, as reconsidering or amending a

judgment after its entry should be done sparingly. See Caldwell v. United States, 391 F.3d 1226,

1235 (Fed. Cir. 2004) (quoting Fru–Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300

(1999)), reh’g en banc denied (Fed. Cir. 2005), cert. denied, 546 U.S. 826 (2005). To show

extraordinary circumstances, a litigant must establish a manifest error of law or mistake of fact.

Fru-Con Constr. Corp. v. United States, 44 Fed. Cl. 298, 300 (1999) (quoting Bishop v. United

States, 26 Cl. Ct. 281, 286 (1992)), aff’d, 250 F.3d 762 (Fed. Cir. 2000) (per curiam). To

demonstrate a manifest error of law or fact, Plaintiffs must show “(1) the occurrence of an

intervening change in the controlling law; (2) the availability of previously unavailable evidence;

or (3) the necessity of allowing the motion to prevent manifest injustice.” Matthews v. United

States, 73 Fed. Cl. 524, 526 (2006) (citation omitted). “Manifest” injustice means “clearly

apparent or obvious” and “refers to injustice that is apparent to the point of almost being

indisputable.” Martin v. United States, 103 Fed. Cl. 445, 448 (2012) (citations and quotation

marks omitted).

Palmer Ranch

On reconsideration, Plaintiffs ask the Court to award Palmer Ranch an additional

$900,000 in severance damages for lost access to McIntosh Road. At the time of the taking,

Palmer Ranch did not have direct access to McIntosh Road. In denying these lost access

damages the Court reasoned:

It is well settled that a takings plaintiff can recover damages when the taking

causes access to the remainder to be diminished. . . . However, in this case,

Plaintiffs seek compensation for unspecified western access to and from Palmer

Ranch that had not been constructed or planned. In order to recover damages for

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a potential future use, a takings plaintiff must establish that the potential future

use was reasonably probable on the date of valuation. [Bd. of Cnty. Supervisors],

276 F.3d 1359 (Fed. Cir. 2002). Plaintiffs failed to meet their burden here. At the

outset, the specifics of how this access via an easement relocation was to occur

remain fuzzy. The only evidence Plaintiffs adduced on the probability of access

in the before condition was the conclusory opinion of Mr. [Chad] Durrance

without an adequate factual predicate. This expert testified in response to a

leading question that County approval would have to be given for the easement

relocation and could be secured. Tr. 353. But the expert’s only support for this

conclusion was his testimony that he had contacted WilsonMiller, and some

unidentified employee told him so. Plaintiffs’ other expert who had worked for

Sarasota County and currently works for WilsonMiller was silent on this point.

In McCann Holdings, Ltd. v. United States, this Court articulated the type of

evidence required to demonstrate that future access would have been reasonably

probable in the before condition, stating:

Here, Plaintiff has marshaled sufficient evidence to establish there was a

reasonable probability that Sarasota County would have used its dedicated

rights-of-way to extend Bay and Preymore Streets, which would have

afforded access to McCann North at those two locations. Plaintiff

proffered plats showing the County had dedicated rights-of-way and

would not need to condemn private property to extend either street. PX

18, PX 19. Mr. Culverhouse credibly testified that based on his

discussions with the county, he believed the county would have extended

Bay and/or Preymore Streets . . . .

McCann Holdings, 2013 WL 3326646, at *25. Here, in contrast, there was no

factual testimony on the likelihood of the County’s approval, and an inadequate

description of what exactly access in the before condition would have been.

Moreover, as Defendant points out, the land through which access would have to

pass is designated as a wildlife corridor, raising a question as to the likelihood of

Sarasota County permitting road construction to provide such access. Nor did

Plaintiffs present evidence that similar access had been provided in similar

situations. See Bd. of Cnty. Supervisors, 276 F.3d at 1365-66.

Childers v. United States, No. 08-1981, slip op. at 89-90 (Fed. Cl. Apr. 2, 2014). The Court

further recognized that while Plaintiffs acknowledged that the land between southwestern Palmer

Ranch and McIntosh Road was owned by Prestancia, there was no evidence of Prestancia’s

position on the probability of the easement relocation referenced by Mr. Durrance. Id. at 87, 89.

In seeking reconsideration, Plaintiffs contend the Court erred in concluding that the only

evidence Plaintiffs adduced on the probability of access in the before condition was the

conclusory opinion of Mr. Durrance without an adequate factual predicate. Plaintiffs argue that

the Court ignored the January 6, 2012 report of Stantec WilsonMiller (“WilsonMiller”), a

consulting firm retained by Plaintiffs that provides services in planning, engineering,

architecture, surveying, and project management, and the testimony of James Paulmann.

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Plaintiffs argue that Mr. Durrance’s appraisal and testimony, the WilsonMiller report, and Mr.

Paulmann’s testimony established it was reasonably probable that Palmer Ranch could have had

access to McIntosh Road in the before condition.

In order to prevail, Plaintiffs must establish both that at the time of the taking the land

could have been “readily converted” to afford such access and that there was a need or demand

for such use in the reasonably near future. United States ex rel. TVA v. Powelson, 319 U.S. 266,

275 (1943) (citations omitted); Bd. of Cnty. Supervisors v. United States, 276 F.3d 1359, 1366

(Fed. Cir. 2002) (citation omitted).

Mr. Durrance’s appraisal of Palmer Ranch addressed the issue of access from Palmer

Ranch to McIntosh Road as follows:

Consultation with the primary planning/engineering firm for the Palmer Ranch

DRI, Stantec (f/k/a [WilsonMiller]), indicates that before imposition of the new

easement, access to McIntosh Road was reasonably probable. McIntosh Road,

along with Honore Avenue, is one of the primary north-south connectors through

the Palmer Ranch Community. Although there is an intervening ownership

between [southwestern Palmer Ranch] and McIntosh Road, given the particulars

of [Prestancia’s] ownership, access/entry from McIntosh Road was not only

probable, but the most desired access point of the available options. Access via

other connections, while adequate, would not be the preferred access points.

PX 19B (BB-PLTF-12814) (emphasis added). Mr. Durrance failed to identify in his report the

person(s) with whom he consulted at WilsonMiller to reach his conclusions. Nor did Mr.

Durrance explain the “particulars” of Prestancia’s “intervening ownership” that could have made

“access/entry” from McIntosh Road probable, or how permission for such access could have

been secured from Prestencia.

At trial, Mr. Durrance testified:

Q [H]ow is it that . . . [Palmer Ranch could have had] access to McIntosh road

when there’s a 50-foot strip of land between this property and McIntosh Road

that’s actually owned by TPC Prestancia?

A . . . It’s reasonably probable in the before condition with TPC having ownership

of the 50-foot strip of land and Palmer Ranch abutting that and then McIntosh

Road. In the before condition, McIntosh Road is a road easement, and TPC owns

the lands underneath McIntosh Road in this area because it’s an easement.

McIntosh Road is currently two lanes, but it’s planned for four lanes, and there is

[a] right-of-way easement reserved for the eventual widening of the four lanes.

In the before condition, the build out of McIntosh Road, this strip of land on the

east side of McIntosh Road, uses that strip for the eventual four laning of this,

which releases this 50-foot strip over here that is currently reserved for the

widening of McIntosh Road to four lanes, so is it reasonably probable given the

situation, the particulars of this property that access to McIntosh Road could be

achieved for the Palmer Ranch property? My answer is yes, and I consulted also

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with [WilsonMiller] regarding that as well since they are the primary engineers

and planners for this community.

Q And so your conclusion is based on the understanding that the road easement

would be relocated from the west side of McIntosh Road on the TPC Prestancia

property over to the east side of McIntosh Road on the east side of the currently-

paved road, is that correct?

A Yes, that is.

Q And that would require the county to agree to that, would they not?

A Yes, sure.

Q Do you know if the county agrees to those kind of road easement relocations?

A Yes, they do. Again, I consulted with [WilsonMiller]. I didn’t just operate in a

vacuum and assume, and the answer is yes. Yes.

Tr. 351-53.

This was the extent of Mr. Durrance’s testimony on Palmer Ranch’s potential for access

to McIntosh Road. While Mr. Durrance opined that access from Palmer Ranch to McIntosh

Road was reasonably probable based on his understanding that the McIntosh Road easement

could be relocated, he did not substantiate the basis for his understanding that such a relocation

could have been accomplished. Tr. 353. Mr. Durrance likewise did not identify the “particulars”

of the Prestancia ownership that caused him to opine that access to McIntosh Road from Palmer

Ranch before the taking was reasonably probable. See Alost v. United States, 73 Fed. Cl. 480,

504-05 (2006) (finding expert testimony to be of little weight because it was based on a

conclusory expert report that lacked independent analysis), aff’d sub nom. Morgan v. United

States, 254 Fed. App’x 823 (Fed. Cir. 2007) (per curiam).

Plaintiffs introduced no testimony other than Mr. Durrance’s regarding how Palmer

Ranch could have sought to relocate the McIntosh Road easement on Prestancia from the west

side of McIntosh Road to the east side or to effect the mechanics of this relocation. Nor did

Plaintiffs submit any evidence on the specifics of how a two-lane highway easement could be

relocated -- they did not provide either the dimensions of the expanse to be relocated or evidence

as to why Prestancia could have likely agreed to such relocation. The owner of Prestancia,

Tournament Players Club at Prestancia, Inc. is a plaintiff in this action. The Court awarded this

plaintiff $772,794 as damages for this taking. Yet, Plaintiffs did not call the owner of Prestancia

to testify on this aspect of their damages claim. By failing to articulate how the easement could

have been relocated, Plaintiffs failed to demonstrate that at the time of the taking, the McIntosh

Road easement could have been “readily converted” to a four-lane roadway affording access to

Palmer Ranch.

Plaintiffs’ contention here that nothing in the trial record contradicted Mr. Durrance’s

conclusion does not preclude this Court from assessing the persuasiveness of that expert opinion

or from discounting it. Piscopo v. Sec’y of Health and Human Servs., 66 Fed. Cl. 49, 53 (2005)

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(citing Kumho Tire Co. v. Carmichael, 526 U.S. 137, 152 (1997)) (“determinations as to the

qualification of experts and the admissibility of their testimony, including an evaluation of

whether the opinion is reliable and relevant, are generally within the discretion of a trial judge,

and are reviewed for an abuse of discretion, only overturned if manifestly erroneous.”); see

generally Terran v. Sec’y of Health and Human Servs., 195 F.3d 1302, 1316 (Fed. Cir. 2000).

The Court admitted Mr. Durrance as an expert in real estate appraisal, not in land use planning.

Tr. 185. As Mr. Durrance’s reliance on his consultation with unidentified representatives from

WilsonMiller indicates, the probability of Palmer Ranch achieving access to McIntosh Road in

the before condition by widening this two-lane road to a four-lane road, relocating the road

easement, and securing approval from the county and Prestancia were matters of land use

planning. Mr. Durrance testified that he consulted with WilsonMiller regarding the probability

of access to McIntosh Road in the before condition “since they are the primary engineers and

planners for this community.” Tr. 352. An expert may only testify on matters within his

expertise. Fed. R. Evid. 702; Kumho, 526 U.S. at 141; Wheeling Pittsburgh Steel Corp. v.

Beelman River Terminals, Inc., 254 F.3d 706, 715 (8th Cir. 2001) (“[A] district court must . . .

perform its gatekeeping role by ensuring that the actual testimony does not exceed the scope of

the expert’s expertise”). Because Mr. Durrance’s reference to his consultation is uncorroborated

by testimony from anyone at WilsonMiller -- when two of the authors of the WilsonMiller

reports testified on other matters -- the Court did not find WilsonMiller’s opinion or Mr.

Durrance’s reliance on it to be persuasive.

Nor did the WilsonMiller reports provide a sufficient factual predicate for Mr. Durrance’s

conclusion that access to McIntosh Road was reasonably probable in the before condition. The

WilsonMiller reports are hearsay. While this Court admits expert reports into evidence where

both parties agree and waive their hearsay objections, this does not establish the reliability and

validity of the opinions in the expert report.1 Two of the WilsonMiller employees who authored

these reports, Crystal Allred and James Paulmann, testified but did not address the probability of

the relocation of this easement. Ms. Allred, an expert in long-range planning and zoning in

Sarasota, Florida, did not have expertise on whether a roadway easement could have been

relocated, and did not author the portions of the reports addressing access to McIntosh Road. Tr.

762, 766, 857-58, 860-61. Ms. Allred testified that Mr. Paulmann, with the assistance of

WilsonMiller’s Francisco Domingo, prepared the discussion in WilsonMiller’s February 24,

2012 report regarding access from Palmer Ranch to McIntosh Road by means of an easement

relocation on Prestancia. Although Plaintiffs identified Mr. Paulmann as an expert land use

planner, Mr. Paulmann was not qualified as an expert and did not testify on any aspect of the

WilsonMiller reports. Mr. Paulmann testified only as a lay witness regarding a wholly different

topic -- the Palmer Ranch Development of Regional Impact. Tr. 903. Accordingly, because the

WilsonMiller authors -- Plaintiffs’ experts -- did not testify regarding the reasonable probability

of access from McIntosh Road to Palmer Ranch, the Court accords no weight to the statements in

the reports on this issue. See Brace v. United States, 72 Fed. Cl. 337, 352 (2006) (recognizing

that while “a testifying expert may rely upon ‘facts or data’ made known to the expert before the

hearing and even may rely upon opinions, if reasonably relied upon by experts in the particular

1

Typically, in this scenario, the Court permits the parties to use the expert report as a

roadmap to facilitate the expert’s direct testimony. Here, there was no testimony by the author of

the portion of the WilsonMillers report addressing this potential easement relocation.

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field,” “the ipse dixit of that reliance does not make those facts, data or opinions true, particularly

where . . . they are derived largely from hearsay”), aff’d, 250 F. App’x 359 (Fed. Cir. 2007).

Alternatively, Plaintiffs request that the Court reopen the trial record under Rule 59(a)(2)

and accept post hoc the deposition of Francisco Domingo, a senior project manager at

WilsonMiller who authored portions of the January 6, 2012 and February 24, 2012 WilsonMiller

reports regarding access and the easement relocation. Rule 59(a)(2) provides:

Further Action After a Trial. The court may, on motion under this rule, open the

judgment if one has been entered, take additional testimony, amend findings of

fact and conclusions of law or make new ones, and direct the entry of a new

judgment.

According to Plaintiffs, Mr. Domingo’s deposition is “additional evidence” that Palmer

Ranch could have obtained access to McIntosh Road in the before condition. While Plaintiffs

listed Mr. Domingo on their witness list as an expert transportation planner and engineer, they

did not call Mr. Domingo to testify at trial. Because Defendant deposed Mr. Domingo, Plaintiffs

contend that there would be “no hardship, unfairness or prejudice” to Defendant if the Court

were to amend the trial record under Rule 59 to include Mr. Domingo’s deposition, and amend

its judgment based on this evidence. Plaintiffs do not cite any cases to support this proposition.

The litigation process rests on the assumption that both parties present their case once, to

their best advantage, and allowing a party to revive claims on motions for reconsideration based

on facts that could have been argued when the matter was ruled upon negates the role of

advocacy in litigation. Keeton Corr., Inc. v. United States, 60 Fed. Cl. 251, 253 (2004) (quoting

White Mountain Apache Tribe of Ariz. v. United States, 9 Cl. Ct. 32, 35 (1985)). Here,

Defendant took Mr. Domingo’s deposition one month before trial but neither party characterized

the deposition as de bene esse or suggested it might be used at trial. Pls.’ Mem. Mot. Recons.

(“Pls.’ Mem.”) Exh. A. Nor did Plaintiffs seek to admit Mr. Domingo’s deposition testimony

into the record at trial.

As Defendant correctly argues, Mr. Domingo’s deposition testimony would have been

inadmissible at trial under Rule 32(a) and should not be admitted now after the record has closed.

See Martinez v. United States, 101 Fed. Cl. 686, 688 (2012) (finding proffered depositions were

inadmissible where there were no exceptional circumstances to justify their admission into the

record). Plaintiffs cannot use a Rule 59 motion to bypass the dictates of Rule 32 and rely on Mr.

Domingo’s deposition to relitigate Palmer Ranch’s lost access claim. Fontenot v. Mesa

Petroleum Co., 791 F.2d 1207, 1220 (5th Cir. 1986) (upholding district court’s decision denying

admission of evidence that was “readily available” at trial to amend the court’s findings of fact

and reverse judgment); Crawford v. Clarke, 578 F.3d 39, 44 (1st Cir. 2009) (affirming district

court’s decision to deny motion for reconsideration seeking to introduce evidence that “could

have been advanced at trial”); Vasapolli v. Rostoff, 39 F.3d 27, 36 (1st Cir. 1994). As such, Mr.

Domingo’s deposition cannot be admitted into the record on reconsideration. Matthews v.

United States, 73 Fed. Cl. 524, 526 (2006) (citation omitted).

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In sum, Plaintiffs failed to establish that there was reasonable probability of access from

Palmer Ranch to McIntosh Road in the before condition.2

JMC

Plaintiffs ask the Court to award JMC an additional $500,000 in severance damages for

its lost access to Mission Valley Golf and Country Club following the imposition of the Trails

Act easement. The western 50-feet portion of the Legacy Trail runs the entire length of the

eastern edge of JMC’s 229.4185-acre property. PX 21B (BB-PLTF-13013).3 The eastern 50-

foot segment of the Legacy trail encumbers the land owned by Mission Valley. See PX 24B

(BB-PLTF-11809). No private or public road connected JMC to Mission Valley before the

taking.

Plaintiffs argue that before the taking, JMC abutted Mission Valley’s golf course,

wooded lands, and single-family homes to the east, and the owner of JMC enjoyed potential

access to those abutting lands. After the taking, however, Plaintiffs state that because the eastern

edge of JMC was encumbered by the trail corridor, it was no longer possible to “develop[] the

JMC property in conjunction with the adjoining country club property.” Pls.’ Mem. 22

Plaintiffs submitted Mr. Durrance’s appraisal and testimony to support this lost-access

claim. When asked to explain why he attributed damages to JMC for lost access, Mr. Durrance

testified:

A: Well, for a couple of reasons. The potential for these owners or these

properties, I should say, to connect, if so desired, that’s number one, and there’s

been discussion in the past about potentially doing that. With the taking, the

severing here, this public corridor? That’s gone. Number 2, [JMC] abuts, I

guess, a desirable land use for lack of a better term, having a golf course and

extensive frontage or abutting ownership with it.

Tr. 369-70; see also Tr. 541-43.

In denying JMC damages for lost access to adjoining lands, the Court reasoned:

Plaintiffs have not demonstrated entitlement to damages for lost access to

adjoining lands. First, Plaintiffs have not established it was reasonably probable

that they would have obtained access to Mission Valley Golf and Country Club

2

While the Court remarked in the Opinion that there was a question as to the likelihood

of Sarasota County permitting construction through the wildlife corridor on Palmer Ranch, the

underpinning of the Court’s decision denying Palmer Ranch lost access damages was the lack of

evidence supporting Mr. Durrance’s conclusory opinion on the probability of access in the before

condition. As such, the Court does not reconsider this aspect of its decision.

3

An aerial map of JMC is in Appendix 2 to this Opinion.

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from JMC before the taking when the rail corridor ran the entire length of the

eastern edge of JMC, completely separating it from the country club. See PX

21C. No private or public roads connected JMC to the country club, and

Plaintiffs did not present evidence that there was a plan or an agreement to build

any roads. Plaintiffs have not demonstrated that the conversion of the railroad

corridor to the Legacy Trail affected access between JMC and the adjoining

properties at all. A plaintiff in a takings case cannot recover damages for lost

potential access unless the plaintiff establishes that there was a reasonable

probability that access would have been provided in the before taking scenario in

the reasonably near future. United States ex rel. TVA v. Powelson, 319 U.S. 266,

275-76 (1943); see also Bd. of Cnty. Supervisors, 276 F.3d at 1365, 1368.

Plaintiffs did not offer any evidence that JMC would have had access to Mission

Valley Country Club but for the rail-trail corridor.

Childers, slip op. at 78. The Court also noted:

Plaintiffs cite Mr. Dellos’ testimony that Mission Valley lost western access

because of the trail as evidence of JMC’s decrease in property value because of

lost access. Pls.’ Post-Trial Br. 38. However, Mr. Dellos, the president of the

Mission Valley Country Club, testified about how the trail affected the club’s

access -- not JMC’s access.

Id. at n.47.

Plaintiffs ask the Court to reconsider awarding JMC lost access damages, claiming that

the Court premised its finding on a conclusion “contrary” to the Court’s opinion on appraisal

methodology holding that “[b]y operation of federal law, the “before” condition of the property

in this Trails Act taking was the unencumbered fee simples Plaintiffs would have enjoyed under

the Honore deed absent the taking.” Rogers v. United States, 101 Fed. Cl. 287, 296 (2011).

Specifically, Plaintiffs contend that in the “‘unencumbered fee simple’ before-taken condition,

JMC would have owned the land abutting [Mission Valley] free of any easement.” Pls.’ Mem.

20. In this limited regard, Plaintiffs are correct. In its liability decision, this Court, construing

the 1910 deed from Adrian C. Honore to Seaboard Air Line Railway, held that the Trails Act

blocked the abandonment of the railroad easement, and prevented the fee simple Plaintiffs would

have obtained upon discontinuance of railroad use from reverting to Plaintiffs. Rogers, 101 Fed.

Cl. at 294. Thus, the Court clarifies that in the before condition, JMC owned the land underlying

the corridor in fee.

A plaintiff in a takings case cannot recover damages for lost access unless the plaintiff

establishes that there was a reasonable probability that the property was “plainly adaptable” to

such access, and that the proposed access would have been provided in the before taking scenario

in the reasonably near future. Powelson, 319 U.S. at 275-76; Bd. of Cnty[.] Supervisors, 276

F.3d at 1366 (citation omitted). In the instant case, while the Legacy Trail separated JMC from

Mission Valley after the taking, Plaintiffs failed to establish that access in the form of potential

connection or joint development of these properties was reasonably probable in the before

condition, that JMC was “plainly adaptable” for such access to Mission Valley or that there was

a need for access from JMC to Mission Valley in the reasonably near future.

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Plaintiffs contend the testimony of Messrs. Durrance and Dellos evinced “a history of

discussions between the country club and a developer in which the JMC property was considered

for residential development in conjunction with the adjoining country club land.” Id. at 21. In

denying JMC lost access damages, the Court considered the testimony of Messrs. Durrance and

Dellos, but was not persuaded that access to Mission Valley was reasonably probable in the

before condition based on the “potential for these owners or these properties . . . to connect, if so

desired.” Tr. 369 (Durrance). Plaintiff’s expert, Mr. Durrance, testified that “there’[d] been

discussion in the past about potentially” connecting the properties. Id. at 369-370. However,

Mr. Dellos had no personal knowledge of such discussions. Id. at 170. Mr. Dellos testified:

The only growth, residential growth that’s going to take place [on the west side of

the property where Mission Valley is located], because the east side of the course

is totally developed, would be from the west and from the northwest. So it’s

important to us as that development takes place that it poses the potential for

additional members for the country club. There was even some conversation,

although I can’t officially state it, that apparently one of the developers had talked

about linking with Mission Valley.

Tr. 175. Messrs. Durrance and Dellos did not describe what such access would have entailed in

the before condition.

The gravamen of Plaintiffs’ claim for lost access damages was JMC’s severance by the

rails corridor from “native wooded lands, well maintained single family homes, and [a] golf

course” on Mission Valley. PX 21B (BB-PLTF-13050); Pls.’ Post-Trial Br. 38. The mere

adjacency of JMC to Mission Valley does not equate to potential access or the right to severance

damages. See United States v. Mattox, 375 F.2d 461, 463 (4th Cir. 1967) (recognizing that mere

proximity or possibility of an integrated use of two separate tracts use will not confer upon the

owner a right to severance damages without reasonable probability that the separate tracts could

have been combined for such integrated use before the taking). Plaintiffs have not established a

manifest error of law or mistake of fact warranting an award of lost access damages to JMC.

Conclusion

Plaintiffs’ motion to reconsider and amend the Opinion is DENIED.

s/Mary Ellen Coster Williams

MARY ELLEN COSTER WILLIAMS

Judge

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