U.S. v. Werner
| Decision Date | 19 September 1994 |
| Docket Number | No. 93-1738,93-1738 |
| Citation | 36 F.3d 1095 |
| Court | U.S. Court of Appeals — Fourth Circuit |
| Parties | NOTICE: Fourth Circuit I.O.P. 36.6 states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Fourth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robert Stanton WERNER, Defendant-Appellant, v. 175.76 ACRES OF LAND, more or less, situated in the County of Jefferson, State of West Virginia; Unknown Owners, Defendants. |
Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert Earl Maxwell, District Judge. (CA-80-7-M)
Argued: R. Edwin Brown, Brown & Sturm, Rockville, MD. On brief: Laurie R. Hanig, Brown & Sturm, Rockville, MD, for appellant.
Argued: Jacques B. Gelin, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C. On brief: Myles E. Flint, Acting Asst. Atty. Gen., John A. Bryson, Michael K. Baker, Joy Ryan, Environment and Natural Resources Division, United States Department of Justice, Washington, D.C., for appellee.
Before RUSSELL and WILLIAMS, Circuit Judges, and OSTEEN, United States District Judge for the Middle District of North Carolina, sitting by designation.
Robert Stanton Werner appeals the district court's judgment awarding $395,500 as just compensation for the condemnation of 175.76 acres of his property in Jefferson County, Virginia. Werner claims that the district court committed several errors, including: (1) informing the second Land Condemnation Commission (the "Second Commission") in its order of appointment of the award granted by the first Land Condemnation Commission (the "First Commission"); (2) entering two ex parte orders requested by the Government; (3) providing erroneous instructions to the Second Commission; and (4) adopting the Second Commission's inadequate and conclusory report. For reasons set forth below, we find that the district court did not commit reversible error, and, therefore, we affirm the lower court's determination of just compensation.
On February 5, 1980, the United States filed a complaint and declaration of taking, acquiring 175.76 acres of a 596-acre tract in Jefferson County, West Virginia, owned by Werner (the "landowner"). The property taken was a plateau of mountainous land located across the Shenandoah River from the Harpers Ferry community. The United States obtained the land "for the proper administration, preservation, and development of the Appalachian National Scenic Trail for the benefit and enjoyment of the public." (J.A. at 15.)
On October 6, 1982, the district court appointed the First Commission to determine just compensation for the condemned land, pursuant to Fed.R.Civ.P. 71A(h). The First Commission held a hearing and filed its report on June 12, 1985, awarding the landowner $263,640. The district court adopted the report in November 1988, and the landowner appealed to this court. This court reversed the judgment and remanded for "a new determination of [just] compensation," finding that the district court had appointed a biased commissioner to the three-person panel and had refused to replace him upon the landowner's objection. United States v. Werner, 916 F.2d 175, 179 (4th Cir.1990).
On July 11, 1991, the district court issued an order appointing the Second Commission, which was made up of a new three-member panel. The order included the same instructions previously given to the First Commission, and the opening paragraph informed the Second Commission of the award rendered by the First Commission. The landowner filed a motion objecting to the inclusion of the prior award, and requesting that the relevant pages be removed from the possession of each commissioner and a cautionary instruction be given. The district court denied the motion, finding that "[t]he prior award [was] a matter of public knowledge" since it was contained in a published Fourth Circuit opinion, and that the instructions already given to the Second Commission adequately addressed the proper grounds for determining an award. (J.A. at 99.)
The Second Commission held a trial for six days in September and October 1991. In order to accomplish its assigned task, the Second Commission focused on evidence regarding the highest and best use of the land at the time of the taking, and the fair and reasonable market value of the landowner's property both before and after the taking of the 175-acre tract.
In reaching its determinations, the Second Commission limited each party to four valuation witnesses. 1 The landowner and William Malcolm, an expert real estate witness, both testified that the best use of the land before the taking was as a ski resort, that the best use after the taking was for residential development, and that just compensation was between $8,010,000 and $10,785,142. Another landowner witness, real estate expert Paul Payne, testified that the best use of the land before the taking was for a recreational and residential development, that the best use after the taking was for a large lot subdivision, and that just compensation was approximately $1,260,334. The fourth landowner witness, C. William Hensell, asserted that the best use of the land before the taking was for residential development, the best use after the taking was for a development of three-to five-acre residential homes, and that just compensation was $1,667,268.
The Government presented only two valuation witnesses. Richard Bowers testified that the best use before and after the taking was as a large lot residential subdivision and determined just compensation to be $211,000. Gregory Didden, another expert real estate appraiser for the Government, testified that the highest and best use of the property before and after the taking was for five-acre residential lot sales. He calculated just compensation as $158,400.
After four days of testimony and the conclusion of the direct cases of both parties, the Second Commission took a three-week recess. During this period, the landowner subpoenaed William Bowen, a real estate appraiser identified as a potential Government witness but not called to testify. The Government filed a motion to quash the subpoena and a motion in limine in the district court, along with a letter requesting an expedited ruling. The district court complied and issued an ex parte order granting the Government's motion to quash because the time for discovery had elapsed when the trial began. The court also granted the Government's motion in limine because the landowner had already presented four valuation witnesses, the maximum number allowed under the rules set forth by the Second Commission. Therefore, although Bowen was called as a rebuttal witness before the Second Commission, he was prohibited from testifying on highest and best use and on value.
On October 24, 1991, the Second Commission filed its report, rejecting the landowner's position as to the highest and best use of the land and finding that the highest and best use was as a large lot residential development. The Second Commission calculated the value of the landowner's property before the taking and the value of the landowner's remaining property after the taking, the difference between the two values constituting "just compensation." It determined that the market value of the entire tract of land before the taking was $791,300, and that the market value of the portion remaining after the taking was $395,500. Accordingly, the Second Commission awarded the landowner $395,500 2 as just compensation for the land taken. The landowner filed objections to the report and the Government filed a response. On April 15, 1993, the district court entered an order denying the landowner's objections and adopting the report and award of the Second Commission. The landowner filed a timely appeal on May 10, 1993.
Initially, we must decide whether the district court committed reversible error by informing the Second Commission of the dollar amount of the award reached by the First Commission, and by denying the landowner's request for a cautionary instruction. The landowner contends that the district court's inclusion of the amount awarded by the First Commission in its order of appointment and instructions to the Second Commission was prejudicial, and tainted the Second Commission's determination of just compensation. This is a question of law which we review de novo. See Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir.1991). We find that the district court did not err when it informed the Second Commission of the outcome of the prior condemnation proceeding, and, to the extent that there was any error, it was harmless.
The landowner relies on the general rule that it is improper and prejudicial to inform a jury in a civil action of a prior award in an earlier adjudication of the same case. See Olitsky v. Spencer Gifts, Inc., 964 F.2d 1471, 1475-76 (5th Cir.) (recognizing that disclosure of the result of the first trial to the jury could be grounds for reversal, although the district court's curative instruction was sufficient to correct the error), cert. denied, 113 S.Ct. 1253 (1993); Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338, 1351 (3d Cir.1975) (). However, even accepting the validity of this principle, the landowner's reliance thereon is misplaced because the trier of fact in this action was not a jury, but rather a commission appointed pursuant to Fed.R.Civ.P. 71A(h).
In the context of a condemnation action, Rule 71A(h) provides that the issue of compensation is determined in a trial by...
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