ORDER ON EX PARTE APPLICATION FOR ORDER AUTHORIZING THE RETENTION AND EMPLOYMENT OF JOHN GALL, AZ AGRICULTURE SOLUTIONS LLC, AS WATER AND FARMING EXPERT FOR DEBTOR NUNC PRO TUNC TO NOVEMBER 1, 20161

MIKE K. NAKAGAWA, Bankruptcy Judge.

On January 26, 2017, a hearing was held on the Ex Parte Application for Order Authorizing the Retention and Employment of John Gall, AZ Agriculture Solutions LLC, as Water and Farming Expert for Debtor Nunc Pro Tunc to November 1, 2016 ("Ex Parte Application"), filed on behalf of the above-captioned debtor in possession ("Debtor"). (ECF No. 313). An objection to the Ex Parte Application ("Objection") was filed of Contrail Holdings, LLC ("Contrail"). (ECF No. 344).2 The appearances of counsel were noted on the record. After oral arguments were presented, the matter was taken under submission.

This instant Ex Parte Application was filed in anticipation of a scheduled evidentiary hearing on five separate matters: (1) the Debtor's motion to value (ECF No. 94) its primary asset consisting of approximately 8,888 acres of real property located in or near Mohave County, Arizona ("the Property"), (2) the confirmation of the Debtor's proposed Chapter 11 plan of reorganization (ECF Nos. 136, 300), (3) the Debtor's motion to sell certain portions of the Property to Encore Investments, LLC (ECF No. 208), (4) the Debtor's motion to sell certain other portions of the Property to James D. Hammer (ECF No. 219), and (5) Contrail's motion for relief from stay (ECF No. 140) with respect to the Property. Central to the disposition of all five matters is a determination of the fair market value of the Property.3

The Debtor and Contrail dispute the value of the Property and will offer testimony from separate appraisers. The appraised values must take into account a variety of factors, including, inter alia, the ability of the Property to sustain viable agricultural operations, the availability of sufficient water resources, the marketability of the Property for agricultural purposes, and other considerations. In addition to their respective appraisers, the Debtor and Contrail have offered the testimony of other individuals as experts under FRE 702 whose opinion testimony might assist the court to understand the evidence presented or to determine an issue of fact.

John Gall ("Gall") previously was authorized by the court to provide services as a real estate agent in this case ("Gall Employment Order"). (ECF No. 89). The Gall Employment Order was obtained by duly notice application of the Debtor (ECF No. 63) that was supported by a verified statement from Gall ("Gall Statement"), along with a declaration from James M. Rhodes. (ECF Nos. 64 and 65). Contrail filed written opposition to the application. (ECF Nos. 75 and 76). Debtor filed a reply that was supported by a supplemental verified statement from Gall ("Gall Supplemental Verification") and a further declaration from James M. Rhodes. (ECF Nos. 78 and 79). As part of the reply to the issues raised by Contrail's opposition, the supplemental materials filed by the Debtor attested that Gall occasionally had "worked for Kingman Farms, LLC on water and zoning issues." See, e.g., Gall Supplemental Verification at ¶ 6.4 The Gall Employment Order, however, authorizes his employment as a real estate agent, and not as an expert with respect to water and zoning issues.

With respect to the matters that are subjects of the Combined Hearing,5 a deadline of November 1, 2016, was set for the parties to designate their expert witnesses. (ECF No. 190). On November 1, 2016, the Debtor designated Gall as an expert, but the designation did not indicate the particular matter in which he would testify as an expert. The designation did include a copy of a letter dated 11/01/2016 written by Gall to James Rhodes and that letter included several attachments.6 See Exhibit "A" to Hamm Declaration. On November 17, 2016, the Debtor provided a supplemental designation that again listed Gall as an expert in the same manner and with the same information as the prior designation. See Exhibit "C" to Hamm Declaration. Apparently, Contrail conducted a deposition of Gall on December 7, 2016, see Exhibit "B" to Hamm Declaration, and a prior deposition of Rhodes on November 8, 2016. See Exhibit "D" to Hamm Declaration. It does not appear that Gall was regarded as a water expert in either deposition.

On January 20, 2017, six days prior to the Combined Hearing, Debtor filed the Ex Parte Motion, the title of which seeks authorization to employ Gall as a "water and farming expert," see Ex Parte Application at 1:17-18, nunc pro tunc to November 1, 2016.7 On January 25, 2017, Contrail filed its objection, arguing that the designation of Gall as a water or farming expert violates the November 1, 2016, designation deadline. Moreover, Contrail argues that Gall does not possess the knowledge, skill, experience, training, education, or specialized knowledge that would qualify him as an expert in the area of water accessibility or farming.8

The court having considered the record, as well as the written and oral arguments and representations of counsel, concludes that the Debtor has violated the expert disclosure deadline and that Gall cannot be permitted to testify as an expert in connection with water or farming matters. Although Contrail had the opportunity to depose Gall in connection with his testimony to be presented at the Combined Hearing, it is evident that not even the Debtor believes that Gall previously had been designated as an expert in water and farming issues. Although any prejudice from the belated designation might be minimized by permitting Contrail to depose Gall as a proposed expert on water and farming matters, such a deposition appears to be of little utility given that Gall has no formal education or training in either area.9

Under these circumstances, the court will deny the Ex Parte Application and Gall will be precluded from offering testimony as a water expert. The court will not, however, preclude Gall from testifying as the Debtor's real estate agent, including about his efforts to market the subject Property.10

IT IS THEREFORE ORDERED that the Ex Parte Application for Order Authorizing the Retention and Employment of John Gall, AZ Agriculture Solutions LLC, as Water and Farming Expert for Debtor Nunc Pro Tunc to November 1, 2016, Docket No. 313, be, and the same hereby is, DENIED.