U.S. v. 0.161 Acres of Land, more or less, situated in City of Birmingham, Jefferson County, Ala.

• Decision Date: 19 February 1988
• Docket Number: No. 87-7141,87-7141
• Citation: 837 F.2d 1036
• Parties: 25 Fed. R. Evid. Serv. 446 UNITED STATES of America, Appellee. v. 0.161 ACRES OF LAND, MORE OR LESS, SITUATED IN THE CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, et al., Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1036

837 F.2d 1036

25 Fed. R. Evid. Serv. 446

UNITED STATES of America, Appellee. v. 0.161 ACRES OF LAND, MORE OR LESS, SITUATED IN THE CITY OF BIRMINGHAM, JEFFERSON COUNTY, ALABAMA, et al., Appellants.

No. 87-7141.

United States Court of Appeals Eleventh Circuit.

Feb. 19, 1988.

Charles E. Sharp, Sadler, Sullivan, Sharp & Stutts, P.C., Paul L. Sotherland, Birmingham, Ala., for appellants.

William C. Knight, Jr., Birmingham Bar Ass'n, L. Drew Redden, Birmingham, Ala., amicus curiae for Birmingham Bar Ass'n.

Frank W. Donaldson, U.S. Atty., Caryl P. Privett, Asst. U.S. Atty., Vicki L. Plaut, U.S. Dept. of Justice, Jacques B. Gelin, Washington, D.C., for appellee.

Appeal from the United States District Court Northern District of Alabama, Southern Division.

Before HILL and EDMONDSON, Circuit Judges and ARONOVITZ ^*, District Judge.

ARONOVITZ, District Judge:

This appeal involves the district court's refusal to admit evidence in a jury condemnation trial for land taken to build a new federal courthouse in downtown Birmingham, Alabama. Also raised are issues accompanying the inevitable docket conflicts which arise between state and federal courts when attorneys have conflicting trial appearances in these courts.

Conflict in Trial Dates

The concerns raised by the first issue pressed on appeal are sure to reoccur with increasing frequency in our litigious society. Although the number of attorneys has increased significantly over the past decade, the explosion of cases filed and proceeding to trial has, remarkably, left each individual attorney with greater obligations and increased caseloads. This deluge has also made it much more difficult for courts to balance the needs for dispatch and increased efficiency in caseload management, against the sometimes conflicting requirement that such efficiency be without substantial prejudice to the parties. When imbalance results, attorneys may have conflicting and overlapping obligations which require them to be, literally, in two courtrooms at the same time.

Following the pretrial conference on June 26, 1986, the District court set this matter for trial on September 2, 1986. Several days later, the attorney for the property owners, Charles Sharpe, Esq., advised the court of a trial conflict, and asked that trial be continued for one week. This was granted, but then the Assistant United States Attorney, Caryl Privett, requested the court to continue trial again. The court then set trial for Monday, September 29, 1986, with jury selection only on Monday, September 22, 1986.

On Friday, September 19, 1986, Sharpe filed a motion to continue both the trial and jury selection, due to a conflicting state court trial which he had commenced during the week of September 15, 1986, and which was expected to last from four to six weeks.

The court held a hearing on the property owners' motion for continuance on Monday, September 22, 1987, immediately prior to jury selection. Sharpe did not participate in this hearing or in the voir dire which followed due to his involvement with the state court trial. Two lawyers from Sharpe's firm represented the property owners, and they urged the district court to abide by the "Birmingham Council on Federal-State Judiciary Statement on Docket Conflicts," (the "Accord"), which several local state and federal trial judges and representatives of the Birmingham Bar Association composed. The Birmingham Bar Association has filed an amicus curiae brief urging this Court to support and apply the principles of the Accord.

The Accord contains a list of principles which attorneys and judges are to follow in order to manage and avoid docket conflicts between state and federal courts. The Accord states that when jury trials in state and federal courts are set for approximately the same time, the federal case normally will be given priority. But the first principle outlined in the Accord is that, in general, each court will defer to the other to complete a trial already in progress. The smooth operation of these principles is dependent upon another principle in the Accord: A lawyer with a potential or actual conflict is to keep both the state and federal courts advised of potential conflicts.

The Birmingham Accord represents a common-sensical codification of reasonable procedures for preventing friction between state and federal courts. As a matter of courtesy to Alabama's courts and to the Bar, this Court gives great weight to the Accord's principles in considering the present dispute. On Monday, September 22, 1986, the district court rejected the defendants' motion for continuance and jury selection took place that day as scheduled, with trial set to commence the following Saturday, September 27, 1987. In rejecting defendants' motion for continuance, the district court prominently considered Sharpe's own failure to abide by the Accord by not informing the court of the potential conflict with the state court trial as soon as he was aware it existed. At the hearing on defendants' motion for continuance, defendants' counsel informed the court that Sharpe had been aware of the potential conflict for about a month, though Sharpe had expected the state case to settle.

Sharpe's failure promptly to advise the district court of the potential trial conflict in state court precludes a finding that the court below abused its discretion by failing to grant a continuance. Nonetheless, it can be stated that ordinarily, setting trial for a Saturday while defense counsel is embroiled in a complicated state court trial certainly strains the spirit of the Accord.

Preclusion of Expert Economist's Trial Testimony

Defendants' second point of error involves objections to the district court's decision to preclude their expert economist, Sheldon Schaffer, from testifying about the fair market value of the courthouse property. It is well-settled that in an eminent domain proceeding, a landowner may prove the market value of his property either by submitting direct evidence of comparable sales, or by presenting the testimony of an expert witness qualified to appraise the property's market value. U.S. v. 429.59 Acres of Land,, 612 F.2d 459, 462 (9th Cir.1980); U.S. v. 320.0 Acres of Land, More or Less, Etc., 605 F.2d 762, 798 n. 64 (5th Cir.1979). ¹

Schaffer holds a masters degree in economics from Yale University, and has been a professional economist for over 40 years, 27 of them in Birmingham. He has conducted a number of economic studies of industries and of local economies, particularly in Jefferson County. In addition, Schaffer has conducted studies relating to real estate development, construction, housing and land use, including six projects in the last six years concerning land use or prices.

As preparation for his testimony in the trial below, Schaffer spent over 200 hours researching 145 land sales during the years 1976-84 in the downtown Birmingham area and reviewing economic data on the downtown area. Schaffer obtained the raw data for the 145 sales from a computer printout from the Board of Appraisers, but he did not have personal familiarity with specific parcels. Based upon his research, Schaffer concluded that the fair market value of the courthouse property was $50.00 per square foot. The government raises essentially two grounds for objecting to Schaffer's testimony.

The government first argues that Schaffer is a land use expert, and that a stipulation entered into shortly before trial by the government that the courthouse property's highest and best use was a commercial office building completely took land use out of contention. But the testimony excluded by the court did not concern land use; rather, the court excluded Schaffer's proposed testimony that the courthouse property was worth $50.00 per square foot. While the defendants certainly would have sought to have Schaffer testify as to the property's highest and best use if the parties had not entered into their pretrial stipulation, his study of downtown property sales was designed to support his opinion of the property's value for its highest and best use. Consequently, the fact that land use was no longer contested has no bearing on whether Schaffer should have been allowed to testify as to the property's value.

The government next suggests that Schaffer's unfamiliarity with the nature of the transactions underlying his study precludes his testimony. Schaffer's failure to study the particulars of each of these sales, plaintiff argues, opens the door to allow indirect evidence of types of sales traditionally disfavored as evidence of fair market value because they are not comparable: condemnation sales, and sales not at arm's length. Plaintiff suggests that the potential existence of these undesirable types of sales in Schaffer's study of 145 downtown sales, and Schaffer's inability to identify which, if any, of these sales are unfairly biased, justifies the district court's exclusion of his testimony.

Comparable sales are "sales from a willing seller to a willing buyer of similar property in the vicinity at or about the same time as the taking." 320.0 Acres, 605 F.2d at 798. Consequently, it is not surprising that sales made under the threat of condemnation, where the seller is not necessarily or probably willing, are highly suspect as direct evidence of comparable value. United States v. 3,727.91 Acres of Land, Etc., 563 F.2d 357, 362 (8th Cir.1977). In a jury trial, if a court admits a forced sale as direct evidence of comparable value, then the jury should be instructed as to the weakness of its probative force. United States v. 74.60 Acres of Land, Miami Co. v. State of Ind., 358 F.2d 143, 144 (7th Cir.1966). Similarly, where a sale is not made at arm's length, it provides scant evidence of comparable value. ²

The fundamental goal of the trial proceeding, of course, is to supply to the jury evidence of the courthouse property's fair market value. In ruling against Schaffer's...