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                                                          [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE ELEVENTH CIRCUIT
                        ________________________

                              No. 19-10705
                        ________________________

                  D.C. Docket No. 1:16-cv-00093-MW-GRJ


SABAL TRAIL TRANSMISSION, LLC,

                                                            Plaintiff-Appellant,

                                   versus

18.27 ACRES OF LAND IN LEVY COUNTY,
LEE A. THOMAS, as successor sole Trustee of the Trust Agreement for Lee A.
Thomas and Beverly J. Thomas Dated October 1, 2003, et al.,

                                                         Defendants-Appellees.
                        ________________________

                              No. 19-10722
                        ________________________

                  D.C. Docket No. 1:16-cv-00095-MW-GRJ



SABAL TRAIL TRANSMISSION, LLC,

                                                            Plaintiff-Appellant,

                                   versus

2.468 ACRES OF LAND IN LEVY COUNTY, FLORIDA,
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RYAN B. THOMAS, et al.,

                                                                    Defendants-Appellees.

                              ________________________

                     Appeals from the United States District Court
                         for the Northern District of Florida
                            ________________________

                                     (August 3, 2020)

Before WILLIAM PRYOR, Chief Judge, ROSENBAUM, Circuit Judge, and
MOORE, * District Judge.

PER CURIAM:

       Sabal Trail Transmission, LLC, appeals from the judgments awarding two

landowners compensation for the easement interests it acquired by eminent domain

to construct a natural-gas pipeline on their lands. After a five-day trial, a jury

awarded $861,264 to Lee Thomas and $463,439 to Ryan Thomas. Sabal Trail

seeks a new trial on the grounds that the landowners lacked a sufficient foundation

to testify about the value of their land after the pipeline encumbered it and that the

district court gave erroneous jury instructions and permitted improper arguments of

opposing counsel. Sabal Trail also challenges the ruling that the landowners are

entitled to recover their attorney’s fees and costs. We conclude that the district

court committed no error in admitting the landowner testimony and that any errors



       *
          Honorable K. Michael Moore, Chief United States District Judge for the Southern
District of Florida, sitting by designation.


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in the jury instructions or arguments of opposing counsel did not prejudice Sabal

Trail, so we affirm the awards of compensation. And because the district court has

not set the amount of attorney’s fees and costs to award, we conclude that the

ruling on attorney’s fees and costs is not final and dismiss the appeals of that

ruling.

                                 I. BACKGROUND

      Sabal Trail commenced these actions to condemn easements needed to build

a natural-gas pipeline through two adjacent properties in Levy County, Florida: an

837-acre farm owned by Lee Thomas and a 40-acre residential tract owned by

Lee’s son, Ryan Thomas. The Thomas family grows watermelons and peanuts,

tends cattle, and boards horses on the farm. Ryan operates the farm and lives on the

adjoining 40-acre tract with his two children. After Sabal Trail filed the

condemnation actions, the district court granted it immediate possession of the

land. Sabal Trail then built the pipeline across the two properties.

      Sabal Trail and the Thomas family could not agree on compensation for the

taking, so the district court held a jury trial on that issue. The jury awarded

$861,264 to Lee Thomas, including $782,083 in severance damages for the loss in

value the pipeline caused to the remainder of the property. It awarded $463,439 to

Ryan Thomas, including $451,654 in severance damages.

      Sabal Trail challenges only the awards of severance damages, which



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exceeded the expert opinions on severance damages but fell below the opinions of

the landowners. Lee and Ryan both testified that the pipeline reduced the value of

the farm property by 12 percent, for a total of $955,250 in severance damages. And

Ryan testified that the pipeline reduced the value of his residential property by 60

percent, for a total of $541,989 in severance damages.

      Lee testified that he earned a degree in agricultural economics and then

trained as an appraiser and lender for farm property after college. Throughout his

life, he bought and sold property in Levy County, including farm property.

Because of the pipeline, he explained, market participants would now perceive the

farmland as having less use and value. He testified that “you never know when”

pipeline maintenance workers might show up and interrupt “family get-togethers

. . . , fish fries, Thanksgiving, and stuff like that.” The “anticipation” and

“uncertainty” of danger from the pipeline could also negatively affect the value of

the land.

      Ryan testified that he is a farmer and certified crop adviser with a bachelor’s

degree in food and resource economics. He worked with his father over the years

to purchase the property that makes up the farm and to sell property in Levy

County. Ryan helped his father improve the farmland to optimize it for running a

commercial watermelon and peanut growing operation. He also improved and

renovated the existing home where he now lives on the adjacent residential



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property. He testified that certain parts of the farm are less productive because of

water issues the pipeline caused. And because Sabal Trail removed trees from his

residential property to build the pipeline, his home was now visible from the

highway. Finally, Ryan expressed his opinion that people would not want to live in

a house that was 300 feet from a pipeline because “something could really

seriously go wrong.”

      Sabal Trail objected to Lee’s and Ryan’s opinion testimony before, during,

and after trial. It agreed that the landowners could offer general opinion testimony

about the impact of the pipeline on their property values—that is, they could testify

that the pipeline reduced their property values. But Sabal Trail argued that Lee and

Ryan were not qualified to testify about how much their properties declined in

value after the pipeline encumbered them because they had never bought or sold

pipeline-encumbered property. The district court overruled Sabal Trail’s objections

at trial and denied its motion for a new trial.

      Sabal Trail also objected to some language in the jury instructions. Before

trial, the district court ruled that state law, not federal law, governed the

compensation the landowners were due. Consistent with that ruling, the jury

instructions referred to “full compensation” under the Florida Constitution as the

relevant standard instead of “just compensation” under the Fifth Amendment to the

United States Constitution. Sabal Trail objected to the term “full compensation”



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and the references to the Florida Constitution in the jury instructions. It argued that

the instructions should instead use the term “just compensation” and should

reference the United States Constitution. But Sabal Trail did not object to the

substance of the instructions about how to determine the “full compensation” due

the landowners; it objected only to the terms “full compensation” and “Florida

Constitution.”

      Consistent with the jury instructions and the pretrial ruling that state law

applied, counsel for the landowners consistently referred to “full compensation”

under the Florida Constitution as the applicable standard in opening statements,

during trial, and in closing arguments. During closing arguments, counsel for the

landowners suggested that “full compensation” under the Florida Constitution

provided greater protection for property rights than “just compensation” under the

United States Constitution. Sabal Trail never objected to this argument or other

references to “full compensation” by opposing counsel.

      Following trial, the landowners moved for attorney’s fees and costs. The

district court ruled that the landowners were entitled to recover their litigation

expenses from Sabal Trail based on its prior ruling that Florida’s “full

compensation” standard applied. But it deferred consideration of the amount of

fees and costs to award until a later date.




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                          II. STANDARDS OF REVIEW

      A few different standards govern our review. We review evidentiary rulings

for an abuse of discretion. Cook ex rel. Estate of Tessier v. Sheriff of Monroe Cty.,

, 1103 (11th Cir. 2005). “We review jury instructions de novo to

determine whether they misstate the law or mislead the jury to the prejudice of the

objecting party, but the district court is given wide discretion as to the style and

wording employed in the instructions.” Goldsmith v. Bagby Elevator Co., 

, 1276 (11th Cir. 2008) (citations omitted). When a litigant fails to object in

the district court to the statements or arguments of opposing counsel, we review

them only for plain error. Oxford Furniture Cos. v. Drexel Heritage Furnishings,

Inc., 

, 1128 (11th Cir. 1993).

                                 III. DISCUSSION

      Sabal Trail raises three different arguments on appeal. It first argues that the

district court abused its discretion by allowing the landowners to testify about the

impact of the pipeline on their property values. Second, it seeks a new trial on the

ground that the district court gave erroneous jury instructions and allowed

opposing counsel to make improper arguments. Third, Sabal Trail challenges the

ruling on attorney’s fees and costs.

      “As a general rule, an owner of property is competent to testify regarding its

value.” Sabal Trail Transmission, LLC v. 3.921 Acres of Land in Lake Cty., 947



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, 1368 (11th Cir. 2020) (internal quotation marks omitted). But this

general rule has an important qualification: a landowner must have some basis for

his valuation testimony and cannot testify based on pure speculation. See Williams

v. Mosaic Fertilizer, LLC, 

, 1250–51 (11th Cir. 2018). In 3.921

Acres, for example, we upheld the admission of landowner opinion testimony

about the value of property after a pipeline encumbered it because the testimony

rested on the landowner’s “personal knowledge” from selling unencumbered

nearby 

. In contrast, Williams upheld the exclusion of

landowner testimony that a home was “valueless” after contamination because that

testimony was “pure 

–51.

      Lee and Ryan Thomas satisfied the low bar of providing some basis for their

valuation testimony. Lee trained as a land appraiser early in his career. Both men

bought and sold property in Levy County over the years and knew what

prospective purchasers would be looking for in a piece of property. And they

explained the negative impact of the pipeline on their farming operations and

residential life. Although Lee and Ryan provided little explanation for the specific

values they testified to, we cannot say their testimony was purely speculative or

that the district court abused its considerable discretion in admitting it. See United

States v. Frazier, 

, 1258 (11th Cir. 2004) (“[T]he deference that is

the hallmark of abuse-of-discretion review requires that we not reverse an



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evidentiary decision of a district court unless the ruling is manifestly erroneous.”

(internal citations and quotation marks omitted)).

      Sabal Trail bases its argument for a new trial on the premise that the correct

standard for compensation in this condemnation proceeding is “just compensation”

under the Fifth Amendment, U.S. Const. amend. V, not “full compensation” under

the Florida Constitution, Fla. Const. art. X, § 6(a). For that reason, it complains

about the references to “full compensation” in the jury instructions and arguments

of opposing counsel. This argument fails.

      We conclude that neither the jury instructions nor the arguments of opposing

counsel warrant a new trial. When considering a challenge to jury instructions,

“[w]e will reverse the verdict of the jury only where the appellant shows both error

and prejudice.” Mosher v. Speedstar Div. of AMCA Int’l, Inc., 

, 824

(11th Cir. 1992). Even if the references to “full compensation” were erroneous,

Sabal Trail has not established prejudice.

      Sabal Trail has not identified any differences between the federal and state

standards for measuring land value or severance damages that are relevant to this

case. Indeed, Sabal Trail did not object to the substance of the jury instructions,

which explained that “[f]ull compensation includes the fair market value of the

property taken plus whatever damages result to the owner’s remaining lands as a

result of the taking.” It argued only that that the references to “full compensation”



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should be changed to “just compensation,” without advocating any change in how

to determine the relevant amount of compensation. There is no reason to think that

substituting the words “just compensation” for “full compensation”—without

altering the substance of the instructions—would have caused the jury to return a

different verdict. So Sabal Trail has failed to establish prejudice and is not entitled

to a new trial based on the jury instructions. See 

–27.

      To obtain a new trial based on the opening statements or closing arguments

of opposing counsel, “the challenged argument must be plainly unwarranted and

clearly injurious.” Knight ex rel. Kerr v. Miami-Dade Cty., 

, 818

(11th Cir. 2017) (internal quotation marks omitted). “The comments must have

been of a nature to impair calm and dispassionate consideration by the jury.”

omitted). And because Sabal Trail did not object to the

arguments of opposing counsel in the district court, we review only for plain error,

a finding that “is seldom justified in reviewing argument of counsel in a civil

case.” Oxford Furniture 

(internal quotation marks omitted).

      The references to “full compensation” by opposing counsel were not plainly

unwarranted and clearly injurious, let alone prejudicial enough to rise to the level

of plain error. Although counsel suggested in closing argument that Florida’s “full

compensation” standard provides greater protection to landowners than the “just

compensation” standard of the Fifth Amendment, the jury never received any



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information about how those standards might differ. And immediately after making

the challenged statements, counsel explained that “[t]he important phraseology is

that full compensation includes the fair market value of the property to be taken

and any damages to the remainder property”—the very standard the district court

used to instruct the jury and to which Sabal Trail lodged no objection. Sabal Trail

is not entitled to a new trial because the references to “full compensation” did not

plainly “impair calm and dispassionate consideration by the jury.” 

(internal quotation marks omitted).

      Finally, Sabal Trail challenges the ruling that it must pay the landowners’

attorney’s fees and costs. But the district court has not set the amount of fees and

costs to award, so no final decision yet exists on this issue. 3.921 Acres of 

. Without a final decision, we lack jurisdiction to review this

ruling. See 28 U.S.C. § 1291.

      Sabal Trail contends that we may exercise pendent appellate jurisdiction to

review this ruling, but we disagree. We may exercise pendent jurisdiction over an

otherwise unappealable issue only if the issue “is inextricably intertwined with or

necessary to ensure meaningful review of [an] appealable issue.” Carbone v. Cable

News Network, Inc., 

, 1357 (11th Cir. 2018) (internal quotation

marks omitted). The issue whether the landowners may recover their attorney’s

fees and costs from Sabal Trail does not fall under either category.



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      Only two appealable issues are before us: the admissibility of landowner

opinion testimony and whether the jury instructions and arguments of counsel

warrant a new trial. We have already held that the first issue is neither inextricably

intertwined with nor necessary to ensure meaningful review of the recoverability of

attorney’s fees and costs. 3.921 

–72. And as we explain,

the second issue likewise supplies no basis to exercise pendent appellate

jurisdiction.

      If “we may resolve” an appealable issue “without reaching the merits” of the

unappealable issue, then the latter issue does not fall within either category of

pendent appellate jurisdiction. 

(quoting Summit Med.

Assocs., P.C. v. Pryor, 

, 1335 (11th Cir. 1999)). To resolve the

appealable issue—whether the jury instructions and arguments of opposing counsel

warrant a new trial—all we must decide is whether Sabal Trail suffered prejudice

from the instructions or arguments. To answer that question, we need not pass

upon the landowners’ entitlement to attorney’s fees, an issue that turns on whether

federal or state law supplies the applicable rule of decision. So we lack pendent

appellate jurisdiction to decide whether the landowners are entitled to attorney’s

fees and costs.

                                 III. CONCLUSION

      We AFFIRM the judgments awarding compensation to the landowners. We



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DISMISS the appeals of the ruling that Sabal Trail must pay the landowners’

attorney’s fees and costs.




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