Filed: Oct. 30, 2008
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1443 EAST TENNESSEE NATURAL GAS COMPANY, Plaintiff - Appellee, v. JERRY S. THOMAS, Defendant - Appellant, and 3.04 ACRES IN PATRICK COUNTY, VIRGINIA; BETTY B. THOMAS; C. JERRY LOVE, Commissioner of Revenue; JOHN DOE, et al.; UNKNOWN OWNERS, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:02-cv-00146-jlk) Argued: September
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 07-1443 EAST TENNESSEE NATURAL GAS COMPANY, Plaintiff - Appellee, v. JERRY S. THOMAS, Defendant - Appellant, and 3.04 ACRES IN PATRICK COUNTY, VIRGINIA; BETTY B. THOMAS; C. JERRY LOVE, Commissioner of Revenue; JOHN DOE, et al.; UNKNOWN OWNERS, Defendants. Appeal from the United States District Court for the Western District of Virginia, at Danville. Jackson L. Kiser, Senior District Judge. (4:02-cv-00146-jlk) Argued: September ..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1443
EAST TENNESSEE NATURAL GAS COMPANY,
Plaintiff - Appellee,
v.
JERRY S. THOMAS,
Defendant - Appellant,
and
3.04 ACRES IN PATRICK COUNTY, VIRGINIA; BETTY B. THOMAS; C.
JERRY LOVE, Commissioner of Revenue; JOHN DOE, et al.;
UNKNOWN OWNERS,
Defendants.
Appeal from the United States District Court for the Western
District of Virginia, at Danville. Jackson L. Kiser, Senior
District Judge. (4:02-cv-00146-jlk)
Argued: September 23, 2008 Decided: October 30, 2008
Before MOTZ and AGEE, Circuit Judges, and James C. CACHERIS,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Henry Evans Howell, III, WALDO & LYLE, Norfolk,
Virginia, for Appellant. Lela Merrell Hollabaugh, WALLER,
LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellee. ON
BRIEF: Joseph T. Waldo, WALDO & LYLE, Norfolk, Virginia, for
Appellant.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
In this condemnation action, the landowner Jerry Thomas
appeals from a jury verdict following the district court’s grant
of a new trial. Thomas alleges that the district court abused
its discretion by granting a new trial. Finding no abuse of
discretion, we affirm.
I.
East Tennessee Natural Gas Company (“ETNG”) filed this
condemnation action against Betty and Jerry Thomas 1 on December
6, 2002. ETNG sought to condemn an easement for the
construction and operation of an underground gas pipeline, part
of which ran through the Thomases’ 400 acres in Patrick County,
Virginia. On May 8, 2003, the district court granted the
easement pursuant to its equitable authority; we subsequently
affirmed this ruling. See E. Tenn. Natural Gas Co. v. Sage, 361
F.3d 808 (4th Cir. 2004). Although Thomas then sold the land to
John Hopkins for $1.25 million, he retained the right to any
compensation for ETNG’s taking.
The case proceeded to trial on October 10, 2005, with the
amount of just compensation owed as the sole remaining issue.
1
Betty Thomas died after the action was filed but before
the first trial. Thus Jerry Thomas is now the sole defendant in
interest.
3
At the first trial, the only direct evidence offered by the
defendants was the testimony of Thomas Childress, a real estate
appraiser. Childress opined that compensation in excess of one
million dollars was appropriate. ETNG responded with several
witnesses opining compensation values ranging from $0 to
$63,000. The jury returned a verdict for $770,554. The
district court granted ETNG’s motion for a new trial, finding
that this verdict was against the clear weight of the evidence
and would result in a miscarriage of justice.
The second trial began on January 16, 2007. The parties
presented different evidence to the new jury. Childress was not
called; the defendants instead relied on two other appraisers,
who similarly opined values over one million dollars. Most
notably, ETNG offered the testimony of purchaser John Hopkins,
who stated that the pipeline did not impact the purchase price
he would have been willing to pay. ETNG also offered testimony
from many of the witnesses that it had relied on in the first
trial. At the conclusion of the six-day trial, the jury
returned a verdict for $118,859. Thomas timely appeals,
alleging error in the district court’s grant of a new trial. 2
2
Thomas also alleges error in the district court’s refusal
to revoke its prior grant of a new trial. Under the
circumstances of this case, this claim is identical to his claim
of error in the grant of a new trial.
4
II.
We review a district court’s grant of a new trial for abuse
of discretion. See Cline v. Wal-Mart Stores, Inc., 144 F.3d
294, 301 (4th Cir. 1998). A district court may use its sound
discretion to grant a new trial when (1) the verdict is against
the clear weight of the evidence, (2) the verdict is based on
evidence which is false, or (3) the verdict will result in a
miscarriage of justice. See Conner v. Schrader-Bridgeport
Int’l, Inc.,
227 F.3d 179, 200 (4th Cir. 2000); Aetna Cas. &
Sur. Co. v. Yeatts,
122 F.2d 350, 352–53 (4th Cir. 1941). The
district court relied on the first and third grounds in its
decision. In deciding whether or not to grant a new trial, a
court may properly weigh the strength of the evidence and
consider the credibility of witnesses.
Conner, 227 F.3d at 200.
The district court described its reasons for granting a new
trial at some length. In particular, the court provided a
number of reasons that led it to doubt that the valuation of the
landowners’ primary witness, Thomas Childress, found support in
reliable evidence. For example, the court noted that
Childress’s calculations assumed that the land was suitable for
a golf course, even though the defendants had abandoned this
position. In addition, Childress relied “largely on the
opinions of others,” including the landowners, in determining
the compensation owed. In contrast, the district court found
5
that the witnesses offered by ETNG were “more substantive” and
based their opinions on “specific data and facts.” Given that
these ETNG witnesses opined values much lower than the $770,554
award, the district court was within its discretion to hold that
the verdict was against the clear weight of the evidence.
Thomas’s contentions to the contrary are unavailing.
Thomas first argues that the district court applied the wrong
test for excessiveness of the verdict. This argument
misconstrues the district court’s opinion. Although the court
noted that the verdict was “excessive,” it did so in the course
of reaching its conclusion that the verdict was against the
clear weight of the evidence. The district court did not rest
its decision solely on the excessiveness of the first verdict.
Thomas’s second contention, that the district judge could
not properly grant a new trial because the judge did not see all
the evidence, is equally meritless. Thomas is correct that the
district judge declined to travel with the jury to view the
Thomases’ land in person. But Thomas did not raise any
objection to this decision at trial, and so he bears the burden
of demonstrating that this decision constituted plain error.
See In re Celotex Crop., 124 F.3d 619, 631 (4th Cir. 1997)
(holding that correction of forfeited error in civil case
required showing that, at minimum, the error was plain and
affected substantial rights). In fact, it is clear from the
6
record that any error by the district court in refusing to visit
the property was harmless. The condemnation at issue was for an
underground pipe, and Thomas does not explain how a viewing of
the property would have affected the district court’s opinion of
the underground pipe.
Thomas’s final contention, that sufficient evidence existed
to support the jury’s verdict, might present a close issue were
we reviewing a grant of judgment as a matter of law. Here,
however, the district court did not direct a verdict for either
party -- it merely granted a new trial. To do so, the court did
not need to conclude that the evidence insufficiently supported
the verdict, but only that the verdict was against the clear
weight of the evidence.
III.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
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