Opinion
Case No. CL18-2169
10-31-2019
VIRGINIA NATURAL GAS, INC., a Virginia public service corporation, Petitioner, v. COLONNA'S SHIP YARD INCORPORATED, Respondent.
OPINION AND ORDER
Virginia Natural Gas ("VNG") brought this eminent domain proceeding by a Petition for Condemnation filed March 14, 2018, to acquire a thirty-foot-wide permanent easement (the "Easement") over property owned by Colonna's Shipyard Incorporated ("CSI") located at 100 South Main Street in Norfolk. By Order dated September 18, 2018, the Court approved VNG's Petition for early entry onto the property to construct a natural gas Pipeline (the "Pipeline"). The issue remaining for trial is the amount of just compensation owed to CSI for the partial taking.
The matter comes before the Court on multiple motions in limine by both parties, followed by extensive briefing and oral argument on October 7, 2019.
Standard of Review
In just compensation cases, "[t]he test of damages to the land remaining after the taking is the difference in the residue's value immediately before and immediately after the taking." Lynch v. Commonwealth Transp. Comm'r, 247 Va. 388, 391, 442 S.E.2d 388, 390 (1994). The court may consider "every circumstance, present or future, that affects the residue's value at the time of the take." Id. The court cannot, however, consider "[r]emote or speculative advantages or disadvantages." Id.
While neither statute nor rule expressly give authority to Virginia trial courts to decide motions in limine, Park v. Robinson, No. L 164003, 1998 WL 972288, at *1 (Va. Cir. Ct. July 30, 1998), trial courts regularly rule on such motions to "narrow[] issues, prevent[] trial delay, avoid[] expense, and promot[e] judicial efficiency." Harward v. Commonwealth, 5 Va. App. 468, 475, 364 S.E.2d 511, 514 (1998). A court should rule on pretrial motions in limine "to prevent prejudice, promote judicial economy, and reduce the expenses of the parties and prospective witnesses" under two scenarios: (1) when the court can conclusively resolve an issue pretrial and (2) when a ruling allows parties to conserve trial preparation resources and "insulate[s] juries from inadmissible and prejudicial evidence." Id. at *2. "When appropriate, a court should state in its order that the ruling is intended to be absolutely determinative at trial." Id. If "a judge believes that certain evidence will be inadmissible and prejudicial but should be subject to potential review by the trial judge upon consideration of the evidence actually presented at trial," then "the court should enter an order precluding the party tendering the evidence from mentioning the evidence in the party's opening statement or seeking to elicit testimony concerning the evidence without the express permission of the judge at trial." Id.
The Court addresses the thirteen motions in turn.
Analysis
I. Motion to Exclude Evidence Based on the Possibility of a Leak or Rupture of Pipeline
CSI has identified two appraisers, Dennis Gruelle and Matthew Ray, to testify about the amount of severance damages to CSI's property caused by the taking of the Easement. Gruelle opines that this amount includes $30,729,887 of "adjustment costs" that he believes CSI will incur. (Pet'r Mot. Limine Exclude Evid. & Arg. Based on Possibility of Leak or Rupture of Pipeline 3.) He bases this calculation on his opinion that the installation of the Pipeline requires CSI to consider a 660-foot buffer zone, which he refers to as an "impact area." (Id., see also Gruelle Dep. 144:5-16, 157:11-22, May 3, 2019.) The referenced "impact" relates to the possibility of an "unintended release" of natural gas from the Pipeline that could migrate through eighty to ninety feet of earth and combust on the surface. (See Gruelle Dep. 144:5-16, 157:11-22, May 3, 2019.) VNG avers that CSI has decided not to engage in hot work in the "impact area," which results in the impact area being "less functional." (Gruelle Dep. 184:3-10.) Similarly, Ray has reached his conclusion regarding severance damages based on the same 660-foot buffer zone or "impact area," which again refers to the risk of an unintended release of natural gas that gets to the surface, intersects with hot work, ignites, and causes an explosion. (Pet'r Mot. Limine Exclude Evid. & Arg. Based on Possibility of Leak or Rupture of Pipeline 4.)
VNG moves to exclude evidence or argument based on or related to: (i) the possibility of a leak or rupture of the Pipeline, including any reference to "buffer zones," "impact zones," or "potential impact radius;" (ii) any evidence or argument based on any safety issues or risks related to the presence of the Pipeline; and (iii) any claims for severance damages based on either of the above. Neither of the two appraisers has analyzed the probability of natural gas leaking from the Pipeline. Ray testified that the probability of an incident or explosion does not matter for the purpose of his opinion. Neither appraiser cites any law or regulation that limits or prevents CSI from using its property, including conducting hot work, just as it did before VNG constructed the Pipeline.
Well-accepted principles of eminent domain law preclude the recovery of remote or speculative severance damages. As the United States Supreme Court held in Olson v. U.S., 292 U.S. 246 (1934):
Elements affecting value that depend upon events or combinations of occurrences which, while within the realm of possibility, are not fairly shown to be reasonably
probable should be excluded from consideration for that would be to allow mere speculation and conjecture to become a guide for the ascertainment of value—a thing to be condemned in business transactions as well as in judicial ascertainment of truth.Id. at 257.
In a case that is squarely on point, the Virginia Supreme Court reversed a trial court which had admitted testimony (from two of the same experts identified by CSI) of remote and speculative damages in an eminent domain action. The landowner in City of Virginia Beach v. Oakes, 263 Va. 510, 561 S.E.2d 726 (2002), claimed severance damages relating to a drainage easement used to create a detention pond. Id. at 513-15, 561 S.E.2d at 726-28. The Court held that the trial court "should not have considered, in its award of damages to the residue, evidence that pollution spills might occur and contaminate the residue due to a potential failure of the detention pond." Id. at 517, 561 S.E.2d at 729. The Court stated:
Not only was this evidence of possible contamination speculative, but we have consistently held that the 'eminent domain provisions in the Virginia Constitution have no application to tortious or unlawful conduct, whether by contractors engaged in constructing public improvements, governmental agents, or third parties who are strangers to the condemnation proceedings.'Id. at 517-18, 561 S.E.2d at 729-30 (quoting State Highway & Transp. Comm'r of Va. v. Lanier Farm, Inc., 233 Va. 506, 511, 357 S.E.2d 531, 534 (1987)). Evidence or argument in this case that the underground Pipeline might leak or rupture does not differ from the Oakes evidence that a pollution spill might occur from the subject detention pond.
* * *
In this case, the landowners' purported damages to the residue, consisting of ... possible future contamination of a detention pond due to negligent or criminal acts, and the cost of monitoring such pond, are speculative and cannot be recovered.
The Court also notes that another Virginia circuit court excluded similar evidence in Virginia Natural Gas, Inc. v. Kipps, 29 Va. Cir. 196 (Va. Cir. Ct. 1992), aff'd 247 Va. 162, 441 S.E.2d 4 (1994). In that case, the landowner sought to introduce testimony from a real estate appraiser to testify "that the residue of the landowner's property ha[d] been damaged by the perception of fear of explosion associated with the natural gas Pipeline constructed by the condemnor." Id. at 196. The trial court excluded that opinion: "To discuss the 'hazards,'i.e., the possibility of explosions, is to venture into the realm of speculation." Id. at 197.
CSI argues strenuously that VNG itself admits in public statements that natural gas is flammable, that it should be isolated from ignition sources, and that its transportation carries inherent risks. CSI represented that its property has 228 ignition sources of flames or sparks at any given time. CSI claims that its "case and expert testimony are not about 'explosions,' but about the changed operational and safety conditions brought about by VNG's high-pressure transmission line running through a working shipyard." (Resp't Mem. Opp'n Pet'r Mot. Limine Exclude Evid. & Arg. Based on Possibility of Leak or Rupture of Pipeline 8).
VNG's Pipeline lies eighty to ninety feet below ground. VNG posits that natural gas becomes flammable when its concentration reaches between 5% and 15% in the air. Thus, even if the Pipeline leaked natural gas, and the natural gas migrated to the surface of the earth, and it contacted an ignition source, the natural gas would still not ignite if the concentration was too high or too low. Neither party has designated a witness to testify that such an incident is likely to occur. The Olson holding requires exclusion of evidence regarding future occurrences affecting the value of land unless those occurrences are shown to be "reasonably probable." Olson, 292 U.S. at 257. VNG argues that the appraisers have not met that showing either in their reports or their deposition testimony.
The admittedly remote possibility of an explosion caused by a leak or a rupture therefore has little probative value under Virginia law; and what value it may have is "outweighed by the danger of unfair prejudice, or its likelihood of confusing or misleading the trier of fact." Virginia Supreme Court Rule 2:403 therefore requires its exclusion.
The Court SUSTAINS the motion and excludes evidence and argument by counsel based on or related to the possibility of a leak or rupture of the Pipeline, including any reference to "buffer zones," "impact zones," or "potential impact radius;" safety issues or risks related to the presence of the Pipeline; and any claims for severance damages based on either of the above.
II. Motion in Limine to Exclude Evidence or Argument Regarding Damages to Fixtures , Furniture, or Equipment
VNG moves to exclude evidence or argument relating to purported damages to CSI's fixtures, furniture, or equipment because of VNG's acquisition of the Easement. Alternatively, VNG moves to exclude expert opinion testimony that any given piece of equipment is a fixture under Virginia law.
VNG argues that "it is undisputed" that none of CSI's fixtures or equipment have been taken or physically damaged or destroyed in any way because of the Easement; therefore, it argues that the diminution in value assigned by CSI's appraisers to all such items lacks any factual foundation and must be excluded.
The Court received only brief excerpts of appraisal reports with the motion and has thus not reviewed them in their entireties. VNG's counsel asserts that CSI has valued as "fixtures" many movable items such as laptop computers, bicycles, and highlighters. VNG argues:
[B]oth appraisers determined that the Equipment has been damaged as a result of the Easement because, according to them, a buyer purchasing CSI's real property would purchase all of the Equipment as well. And because the Easement damages the remainder of CSI's property, then the Equipment must be damaged too, according to the appraisers.
* * *
Their theory is simple: the Equipment is included in the value of CSI's property; the Easement damages the remainder of CSI's property by 15%; therefore, the Equipment is damaged.(Pet'r Mot. Limine Exclude Evid. or Arg. Regarding Damages to Fixtures, Furniture, or Equipment 5, 8.) VNG seeks exclusion of the appraisers' opinions as unsubstantiated and unreliable, lacking factual foundation, and based on speculation and conjecture.
The Court has already ruled that evidence about potential explosions, buffer zones, impact areas, and safety fears is speculative and inadmissible. To the extent that the appraisers' opinions about values relate to such evidence, which the Court cannot glean from the pleadings and the excerpts, CSI may not present those opinions to the jury.
The Court agrees with VNG that the determination of whether equipment is a fixture under Virginia law constitutes a question of fact about which an expert cannot testify. If the evidence conflicts as to whether an item satisfies the three-part test announced in Danville Holding Corp. v. Clement, 178 Va. 223, 16 S.E.2d 345 (1941) (establishing rules for determining when an article of tangible personal property is a fixture), then the jury must resolve that conflict based on the facts presented and not the opinion of any expert. Id. at 231, 232, 16 S.E.2d at 349. The Court will not permit the appraisers to offer expert opinion testimony that any particular item constitutes a fixture, absent some stipulation or agreement by counsel (which the Court encourages counsel to reach).
VNG's motion asks the Court to reject CSI's premise that undamaged fixtures at the shipyard have diminished in value as a result of the installation of the underground Pipeline. Based on the motions and the pleadings, however, the Court has an insufficient basis to exclude such evidence. The appraisers must lay the appropriate foundation before the Court will admit their opinions; but VNG has not established that they will inevitably fail to do so. Therefore, the motion to exclude this evidence is OVERRULED.
III. Motion In Limine to Exclude Revised Appraisals of Dennis Gruelle and Matthew Ray , or in the Alternative, Exclude Opinions on Severance Damages Based on Hearsay Communications
VNG moves to exclude the revised appraisal reports of CSI's two appraisers, Gruelle and Ray, on several bases.
First, VNG complains that CSI filed the reports on May 1 and May 8, 2019, two months after the March 4, 2019, expert disclosure deadline established in the Scheduling Order. As CSI points out in its opposition, however, VNG itself filed an Amended Petition for Condemnation on March 14, 2019, and thereafter produced a new appraisal on April 17, 2019, without seeking an extension of the deadline for filing expert disclosures. CSI argues that the law required it to produce a new appraisal based on the changed description of the property being taken in the Amended Petition.
In reply, VNG acknowledges that it filed an Amended Petition and a new appraisal after the expert disclosure date but argues that CSI's additions and changes in its new appraisal reports went far beyond the limited changes that VNG made in the Amended Petition. CSI notes the many items of new information and data in VNG's new appraisal that address matters beyond the amendment to the easement language: "VNG asks this Court to exclude CSI's new appraisals, but not its own new appraisals, in response to the changed taking in the Amended Petition." (Resp't Mem. Opp'n To Pet'r Am. Mot. Limine Exclude Revised Appraisals of Dennis Gruelle & Matthew Ray 5).
It appears that neither party, therefore, has strictly complied with the deadlines established by the agreed Scheduling Order or sought leave of court before departing from them. In this case, VNG—the party that filed the Amended Petition—did not seek to modify the Scheduling Order to permit the filing of additional reports made necessary by its amendments or otherwise seek to limit the subject areas upon which the experts authoring the new appraisals could add to or change previously-disclosed opinions. Inasmuch as both parties have filed new appraisals, the Court declines to exclude CSI's based on the Scheduling Order noncompliance.
VNG next argues that the Court must exclude the new appraisals because Gruelle and Ray based them on inadmissible hearsay. The appraisals reference interviews with certain shipyard owners soliciting their views on the desirability of owning a shipyard adjacent to an underground natural gas pipeline. For example, Gruelle's appraisal report states:
Three of the shipyards with whom I spoke stated they would not consider acquiring the subject property for operation as a shipyard due to the presence of the VNG Pipeline. All of the individuals with whom I spoke confirmed that they would pay considerably less, if anything at all, to acquire the property for a shipyard.(Gruelle Appraisal Report 61).
VNG argues further that an expert must base his or her opinion testimony on sufficient facts and data and must use reliable principles and methods. See, e.g., Keesee v. Donigan, 259 Va. 157, 161, 524 S.E.2d 645, 647 (2000) (an expert must have an "adequate foundation" for his or her opinion); Kannankeril v. Terminix Int'l Inc., 128 F.3d 802, 806 (3d Cir. 1997) (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 744 (3d Cir. 1994)) ("In order for the expert testimony to be 'reliable,' we have required that the testimony be based on the 'methods and procedures of science,' rather than on 'subjective belief or unsupported speculation.'"). VNG contends that a handful of conversations with shipyard operators handpicked by CSI's Chief Executive Officer falls short of the requirement that experts base their opinions on a sufficient factual basis and reliable methods.
CSI responds that it does not plan to present inadmissible hearsay declarations at trial "but only [wants] to allow the appraisers to describe the supporting evidence for their opinions." (Resp't Mem. Opp'n To Pet'r Am. Mot. Limine Exclude Revised Appraisals of Dennis Gruelle & Matthew Ray 6.) The Court intends to adhere to the controlling precedent of McMunn v. Tatum, 237 Va. 558, 565, 379 S.E.2d 908, 911-12 (1984), as well as Virginia Code § 8.01-401.1. If CSI lays the appropriate foundation to establish that these types of interviews are "of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences," then the experts may testify to opinions that they formed in reliance upon such information. Va. Code § 8.01-401.1. However, the Court will not admit the hearsay statements themselves into evidence.
Likewise, the Court cannot determine in this motion in limine that selected interviews with shipyard owners contravene the requirement of a reliable method or procedure for forming an expert opinion as to property value. The Court will require CSI to demonstrate the sufficiency of the experts' methods in acquiring a basis for the opinions that they intend to offer. If, as VNG argues, the conversations with shipyard owners are not shown to be a method normally relied upon by experts in the field, then the Court will exclude the opinions.
The remaining bases for the motion to exclude these revised appraisals, primarily relating to the bias and impermissible tainting of the interviewees, relate to matters that go to the weight of the evidence and not its admissibility. The motion to exclude these revised appraisals is OVERRULED.
IV. Omnibus Motion In Limine to Exclude Certain Evidence and Testimony
VNG's Omnibus Motion In Limine to Exclude Certain Evidence and Testimony consists of six separate motions that ask the Court to exclude evidence that CSI plans to introduce at trial. The Court addresses these motions in turn.
A. Motion to Exclude Evidence or Argument Claiming that VNG Referred to the Pipeline as a Distribution Line
CSI seeks to introduce evidence that VNG previously referred to the Pipeline as the "Southside Connector Distribution Pipeline" because market participants' knowledge about the prior name might have affected CSI's property's value and because "the project name change is impeachment evidence to be used in showing a lack of credibility, bias, and inconsistent statements by VNG." (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 1-3.) VNG asks the Court to exclude this evidence as it is irrelevant. (Pet'r Omnibus Mot. Limine 1.)
Again, a court may not consider "[r]emote or speculative" circumstances that may affect a property's value in just compensation cases. Lynch, 247 Va. 391, 442 S.E.2d at 390. A party may impeach the credibility of an opposing party's witness "with any proof that is relevant to the witness's credibility," including evidence of a witness's bias, prior inconsistent statements, or credibility. Va. Sup. Ct. R. 2:607(a) (emphasis added).
Both in its opposition brief and at oral argument, CSI offered nothing to substantiate its claim that VNG's previous references to the Pipeline as the Southside Connector Distribution Line affect the market value of CSI's property. Therefore, CSI may not introduce evidence of the Pipeline's previous name to demonstrate how that name affected its property's market value. Additionally, CSI does not explain how evidence that VNG previously called the Pipeline the Southside Connector Distribution Line bears relevance to any witness's credibility. Therefore, the Court SUSTAINS VNG's motion.
CSI does not identify which of VNG's witnesses they would impeach with the evidence that VNG previously referred to the Pipeline as the Southside Connector Distribution Line. However, such evidence does not appear relevant to the credibility of any witness.
B. Motion to Exclude Any Testimony or Expert Opinions Regarding a FERC , EPA, or PHMSA "Buffer Zone," "Safety Buffer," or "Safety Zone"
CSI intends to introduce evidence of buffer zones referred to in Pipeline and Hazardous Materials Safety Administration ("PHMSA") and Environmental Protection Agency ("EPA") regulations "as information considered by CSI's experts when opining on adjustments to [CSI's shipyard] due to VNG's easement." (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 3.) VNG argues that the Court should exclude this evidence because the so-called "buffer zones" refer to PHMSA and EPA requirements that relate only to the design and construction of the Pipeline. They do not require CSI to consider a buffer zone when operating its shipyard. (Pet'r Omnibus Mot. Limine 2-3.) CSI's Chief Executive Officer, Thomas Godfrey, admits that the PHMSA and EPA regulations do not require CSI to impose any buffer zone for the safe operation of the shipyard and that CSI made a "judgment call" when it decided to create a "no hot work zone." (Godfrey Dep. 76:6-19, Apr. 18, 2019). Nonetheless, CSI asks the Court to admit testimony that it needs to implement a "buffer zone" because of the installation of the Pipeline. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 4-5.)
VNG also asked the Court to exclude any reference to a FERC "buffer zone," "safety buffer," or "safety zone," but CSI says that it "does not intend to present evidence on a 'FERC Buffer' at trial." (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 4.)
Courts generally admit expert testimony in a civil case "if it will aid the trier of fact in understanding the evidence." Keesee, 259 Va. at 161, 524 S.E.2d at 647. Such testimony must have "adequate foundation" to be admissible. Id. An expert may rely on inadmissible facts, data, or circumstances to form the basis of his or her opinion if such evidence is "of a type normally relied upon by others in the particular field of expertise in forming opinions and drawing inferences." Va. Code § 8.01-401.1. However, a court will not admit expert testimony "that is founded on assumptions that have an insufficient factual basis." Keesee, 259 Va. at 161, 524 S.E.2d at 648. In other words, "when an expert '"assume[s] a fiction and base[s] his opinion of damages upon that fiction[,]" . . . that testimony [is] "speculative and unreliable as a matter of law."'" Blue Ridge Serv. Corp. of Va. v. Saxon Shoes, Inc., 271 Va. 206, 217, 624 S.E.2d 55, 61 (2006) (quoting Vazquez v. Mabini, 269 Va. 155, 161, 606 S.E.2d 809, 812 (2005)).
Here, CSI's own Chief Executive Officer admits that the PHMSA and EPA regulations that VNG relied on to construct the Pipeline do not apply to CSI's shipyard operations. Rather, CSI self-imposed the "buffer zones" as a matter of business judgment. Any expert opinion suggesting that the PHMSA or EPA regulations required CSI to account for a buffer zone when operating the shipyard has "an insufficient factual basis" and "assumes a fiction" as at least part of the basis of his or her opinion, which makes such testimony "speculative and unreliable as a matter of law." Therefore, the Court SUSTAINS VNG's motion and excludes any testimony or evidence regarding a FERC, PHMSA, or EPA "buffer zone," "safety buffer," or "safety zone."
C. Motion to Exclude Evidence Regarding Other Pipeline Incidents and Any Opinions Based on Such Evidence
CSI seeks to introduce evidence "that VNG's natural gas network has experienced, and regularly experiences, unintentional releases as facts the market would consider in evaluating whether" VNG's condemnation has changed CSI's property value. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 5.) VNG asks the Court to exclude this evidence because the "unintentional releases" did not occur under substantially similar circumstances to those that exist at CSI. (Pet'r Omnibus Mot. Limine 3-4.) VNG further claims that evidence of other Pipeline incidents "is unfairly prejudicial and is likely to divert the trial from an evaluation of compensation for the Easement to a re-litigation of Pipeline safety." (Id. at 4.) CSI counters that excluding evidence about unintentional releases would require jurors "to speculate, without knowing it, that incidents of unintended releases do not occur." (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 5.)
CSI notes that VNG has publicly reported, as required by the PHMSA, over 13,500 leaks since 2016. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 5.) VNG reponds that it has reported twenty-four leaks from a transmission pipeline and only one leak from an underground transmission pipeline like the one in the Easement. (Pet'r Reply Br. Supp. Omnibus Mot. Limine 4 & n.4.)
When determining the difference between the fair market value of the residue of a property before and after a taking, a court may consider "both present and future circumstances which actually affect the value of the property at the time of the taking," but it may not consider "remote and speculative damages." E. Term. Nat. Gas Co. v. Riner, 239 Va. 94, 100, 387 S.E.2d 476, 479 (1990). "[D]amages to the residue from a partial taking are those that flow directly from the taking and not damages that are merely speculative." Oakes, 263 Va. at 516-17, 561 S.E.2d at 729. An expert may not opine that market fears about a natural gas pipeline explosion diminish the value of a landowner's property because discussing "the possibility of explosions . . . venture[s] into the realm of speculation." Kipps, 29 Va. Cir. at 197.
Courts that regularly adjudicate eminent domain cases involving pipelines exclude testimony about damages associated with the "environmental stigma" resulting from a pipeline on one's property, particularly testimony that attempts to quantify the market devaluation caused by the Pipeline, when such testimony lacks "a foundation of market data" to support the alleged reduction in property value. See, e.g., Condemnation of Permanent & Temp. Rights of Way for the Transp. of Nat. Gas in Buffalo Twp. v. Nat'l Fuel Gas Supply Corp., No. 1093 C.D. 2017, 2018 WL 2945112, at 8-9 (Pa. Commw. Ct. June 13, 2018) (upholding trial court's decision to exclude expert testimony about decreased market value of landowners' property caused by market fears about pipeline explosion, because landowners' expert appraisers "did not base their stigma valuations on a foundation of market data indicating an actual fear in the community of a possible gas Pipeline explosion").
CSI believes that the market's knowledge of previous pipeline leaks at different properties diminishes the fair market value of its shipyard. Yet, any diminution in market value related to those past pipeline leaks could only stem from fears that a similar leak will occur on CSI's property. The Court has already excluded evidence about the possibility of future leaks or ruptures as speculative. Supra Part I. CSI may not circumvent that ruling by presenting data about previous leaks for the sole purpose of suggesting to jurors that the likelihood or fears of a similar leak have reduced the market value of CSI's property. Furthermore, CSI offers no support for their assertion that the publicly-available leak data has affected its property's market value, making such an opinion based not on market data but on speculation. Therefore, the Court SUSTAINS VNG's motion.
D. Motion to Exclude Evidence Regarding the Atlantic Coast Pipeline or the Southside Connector Pipeline as Part of the Atlantic Coast Pipeline
VNG asks the Court to exclude evidence regarding the Atlantic Coast Pipeline or suggestions that the Southside Connector Pipeline is part of the Atlantic Coast Pipeline. (Pet'r Omnibus Mot. Limine 5-6.) VNG worries that CSI will attempt to suggest "that VNG has tried to skirt federal regulation by constructing the [Southside Connector Pipeline] under a different name." (Id. at 5.) CSI states that it does not intend to mention the Atlantic Coast Pipeline other than in the context of the Pipeline's previous name as the Southside Connector Distribution Line, evidence which the Court excludes, and as part of a discussion of the experience of one of its experts, Thomas Stokes. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 6.) Therefore, aside from allowing CSI to mention the Atlantic Coast Pipeline when outlining Stokes's experience, the Court SUSTAINS this motion.
E. Motion to Exclude Evidence Regarding CSI's Alleged Business Losses , Including Any Reference to Potential Loss of Business to CSI from the Navy
CSI stipulated that it would not seek "to recover any business losses or lost profits in this case." (Godfrey Dep. 154:13-17, Apr. 18, 2019; see also id. at 6 ("CSI stipulated that it would not seek lost profits in this case, and is not doing so.").) Despite making that stipulation, CSI opposes this motion because it "may seek to exclude evidence which CSI is legally entitled to present," like evidence that the Pipeline prevents CSI from operating its shipyard at its highest and best use. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 6-7.) Specifically, CSI seeks to present evidence that it "must make adjustments to restore the margin of safety" to its property to remediate the decreased margin of safety that resulted from VNG's taking. (Id. at 7.) Notwithstanding CSI's concerns, VNG does not ask the Court to exclude any evidence other than that which refers to business losses. Because CSI stipulated that it would not seek to recover any business losses stemming from VNG's acquisition of the Pipeline, evidence regarding business losses is irrelevant for determining the just compensation award that VNG must pay to CSI. The Court therefore SUSTAINS VNG's motion.
F. Motion to Exclude Evidence that the Easement or Pipeline Interferes with CSI's Ability to Build Improvements in the Elizabeth River
CSI intends to introduce evidence about how it planned to develop the Easement area, particularly how it planned to construct a pier in the Elizabeth River. (Id.) VNG asks the Court to exclude this evidence because CSI's ability to construct these improvements depends on future events beyond CSI's control, like additional permitting, and because VNG's acquisition of the Easement does not prevent CSI from making the improvements. (Pet'r Omnibus Mot. Limine 7-8; Pet'r Reply Br. Supp. Omnibus Mot. Limine 5-6.) In fact, VNG argues that "none of the proposed improvements are in VNG's easement area, which stops at the mean-low water mark pursuant to Virginia Code § 28.2-1202." (Pet'r Reply Br. Supp. Omnibus Mot. Limine 6.)
CSI contends that it can present evidence of the planned future development of its property, including development that requires additional permits, for five reasons. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine 7-12.) First, CSI cites a February 2016 drawing showing plans to make various improvements to the Easement area, (Id. Ex. E), and a January 2018 drawing showing plans to build both a pier and a crane on the shipyard. (Id. Ex. F.) Both drawings predate the take that occurred on March 14, 2018, and demonstrate that planned improvements to the Easement area are not speculative. (Id. at 8.) Second, CSI notes that it "has never been denied a permit to build any improvement into the Elizabeth River," making it likely that it would receive the necessary permits to build improvements in the Easement area. (See id.) Arguing that the need for additional permitting does not render its planned development of the Easement area inherently speculative, CSI cites a recent Supreme Court of Virginia case holding that a requirement for rezoning or government approval does not make planned future developments inherently speculative. (Id. at10-11 (citing Helmick Family Farm, LLC v. Comm'r of Highways, P832 S.E.2d 1 (Va. 2019).). Third, CSI argues that Virginia law "has consistently allowed" a landowner to present evidence of the planned future development of his or her property. (Id. at 9-10.) Fourth, CSI contends that the Court should allow its appraisers to testify about how the need to obtain VNG's permission to build in the Easement area affects the fair market value of its property. (Id. at 12.) Fifth, CSI claims that the Court should allow it to introduce evidence that safety concerns associated with building near the Pipeline prevent CSI from pursuing its planned development of the Easement area. (Id.)
When determining a just compensation award, the court should consider "everything which affects the market value" of the condemned property, Appalachian Elec. Power Co. v. Gorman, 191 Va. 344, 354, 61 S.E.2d 33, 38 (1950) (quoting Galax v. Waugh, 143 Va. 213, 229, 129 S.E. 504, 509 (1925)), including "the property's adaptability and suitability for any legitimate purpose in light of conditions and circumstances that exist at the time of the take or that reasonably may be expected in the near future." Lynch, 247 Va. at 391, 442 S.E.2d at 390. "[T]he reasonable possibility of a rezoning should be taken into consideration in compensating landowners" because "a willing buyer will pay more for property that presents a fair prospect for more favorable zoning than a property that offers no such prospect," Helmick, 832 S.E.2d at 4, 7. A court cannot, however, consider "remote and speculative" damages. See, e.g., Oakes, 263 Va. at 516, 561 S.E. 2d at 729.
Numerous cases from the Supreme Court of Virginia have established principles to guide Virginia courts when determining whether to admit evidence of planned future developments in just compensation cases. In Waamco, Inc. v. Commonwealth Transportation Commissioner of Virginia, 251 Va. 132, 465 S.E.2d 584 (1996), the court held that a landowner could not introduce evidence of increased development costs necessitated by a condemnation because the "development of the property [was] contingent on future acts beyond [the landowner's] control which are remote and speculative," namely "the improvement of off-site roads in the vicinity of the residue and the acquisition of property of others to provide access to the site." Id. at 138, 465 S.E.2d at 587 (emphasis added). In Virginia Electric & Power Co. v. Hylton, 292 Va. 92, 787 S.E.2d 106 (2016), the court deemed evidence about a potential surface mine on condemned property inadmissible because the landowner developed plans for the surface mine during discovery and after the take. Id. at 108, 787 S.E.2d at 115 (holding that because "a surface mine did not exist on the property nor had one been contemplated" "at the time of the take" it "would necessarily be speculative" to consider the value that the hypothetical mine would create).
Conversely, in Appalachian Electric Power Co. v. Gorman, the Supreme Court of Virginia affirmed a trial court's decision to admit evidence about a condemnation's effect on a landowner's proposal to develop his property into a subdivision. Id. at 356-57, 61 S.E.2d at 39. There, the landowner had platted his property for a proposed subdivision but had neither sold any lots nor improved the land for use as a subdivision because the start of World War II halted such development. Id. at 348, 350, 61 S.E.2d at 35-36. The Supreme Court upheld the trial court's decision to admit the 1940 plat because it "set out the basis of the most advantageous and valuable use of the tract." Id. at 356, 61 S.E.2d at 39. Importantly, the Court did not rely exclusively on the rule that a court should award compensation "upon the basis of the most advantageous and valuable use of the land," but rather heeded its own admonishment that courts must consider "each case . . . under its own peculiar circumstances." Id. at 354-55, 61 S.E.2d at 38-39. To that end, when justifying its decision to uphold the trial court's decision to admit evidence of the plat, the Court made the crucial observation that the landowner did not make the plat "for the purpose of boosting the value of the tract, but for a development prevented by circumstances beyond the control of the landowners." Id. at 356, 61 S.E.2d at 39 (emphasis added).
Before CSI offers evidence about damages from its purported inability to develop the Easement area, it must first demonstrate that the Easement actually affects its ability to develop the Easement area. The Amended Petition for Condemnation requires CSI to obtain VNG's permission to build in the Easement area, but that language alone does not foreclose CSI's ability to build in the Easement area. (Resp't Mem. Opp'n Pet'r Omnibus Mot. Limine Ex. G.) CSI says that "[s]afety considerations around VNG's high-pressure natural gas transmission line . . . prevent the planned construction of the pier," (id. at 12), but when pressed on the matter CSI Chief Executive Officer Thomas Godfrey could not identify anything "from an engineering perspective" that prevented CSI from building the pier. (Godfrey Dep. 134:18-22, Apr. 18, 2019.) In fact, Godfrey admitted that even if CSI received engineering plans showing that it could construct the Pipeline safely, it would not do so. (Id. at 134:5-10.) Furthermore, it remains unclear whether any of the proposed improvements require CSI to build in the Easement area. CSI must satisfy all these foundational prerequisites before introducing any evidence about the damages it incurred to its proposed development of the Elizabeth River area because of the Easement. If CSI satisfactorily establishes the foundation needed to introduce evidence of damages relating to its proposed development of the Elizabeth River area, it then must offer that evidence to show the property's "highest and best use" and not for some other, impermissible reason, like to artificially inflate the value of its property. The Court therefore OVERRULES VNG's motion.
V. Motion to Exclude the Legal Opinions of Arthur Rood and Jeffrey Hammaker
"CSI intends to call Mr. Hammaker and Mr. Rood to present evidence based on the chain of title on [its] property, the existing easements on [its] property, and other matters related to title to the riparian area." (Resp't Mem. Opp'n Pet'r Mot. Limine Exclude Legal Ops. Arthur Rood & Jeffrey Hammaker 1.) VNG opposes Rood and Hammaker's testimony "about the extent of CSI's riparian rights in the Elizabeth River, as well as opinions as to their interpretation of the easement that VNG is acquiring in this matter." (Pet'r Mot. Limine Exclude Legal Ops. Arthur Rood & Jeffrey Hammaker 1.) VNG argues that the Court should not allow Rood and Hammaker to testify about CSI's riparian rights because Virginia statutes and case law define the extent of those rights and, thus, any such opinions amount to inadmissible legal conclusions. (Id. at 1-2.) VNG contends that the Court should not permit Rood and Hammaker to offer their interpretation of the Easement, because such testimony would allow those experts "to offer their interpretation of how the Easement terms will interfere with CSI's preexisting property rights," which would allow them "to offer favorable legal arguments and conclusions under the guise of expert testimony." (Id. at 2-3.)
In its Reply in Further Support of Its Motion In Limine to Exclude the Legal Opinions of Arthur Rood and Jeffrey Hammaker, VNG claims that CSI concedes that Rood and Hammaker cannot testify to the following legal matters:
• All river beds are property of the Commonwealth unless conveyed by special grant or compact according to law (Va. Code § 28.2-1200);(Pet'r Reply Further Supp. Mot. Limine Exclude Legal Ops. Arthur Rood & Jeffrey Hammaker 1-2.) The Court agrees that opinions regarding these four points of law require Rood and Hammaker to offer inadmissible legal conclusions. Therefore, the Court SUSTAINS VNG's motion as to these matters.
• Riparian property extends to the mean low-water mark but no further (Va. Code § 28.2-1202);
• 'Any person owning land upon a watercourse may erect a private wharf on the same, or private pier or landing, in such watercourse opposite his land; provided, such wharf, pier or land is for noncommercial purposes and navigation be not obstructed, nor the private rights of any person be otherwise injured thereby.' (Va. Code § 62.1-164); and
• The five riparian rights under Virginia law (Taylor v. Commonwealth, 102 Va. 759, 773 (1904)).
CSI counters that neither Rood nor Hammaker will offer legal opinions. (Resp't Mem. Opp'n Pet'r Mot. Limine Exclude Legal Ops. Arthur Rood & Jeffrey Hammaker 1-2.) CSI says that Rood will testify to: (i) "his extensive review of historical surveys of the property, as well as his own survey work on the property;" (ii) CSI receiving deeded "property rights extending to the pierhead line, and that the deeding is consistent for over 100 years;" (iii) "CSI's past and present use of the deeded area;" and (iv) "the relative locations of easements on CSI's property." (Id.) According to CSI, Hammaker will testify about (i) the effect of past and present easements on CSI's property, including the easement VNG acquired; (ii) CSI's historic claim to a King's grant in the Elizabeth River; and (iii) "CSI's use of their riparian area." (Id. at 2.) CSI argues that the Court must permit it to offer so-called "easement impact testimony" because "[a]ppraisers and others must determine the impact of the rights taken to render an opinion on just compensation." (Id. at 3.) CSI highlights that VNG's appraiser—like Rood and Hammaker—interprets the effect of the Easement on CSI's property's value to determine that the Easement did not damage the remainder of CSI's property. (Id. Ex. D.)
An expert witness may not offer "any opinion which constitutes a conclusion of law." Va. Sup. Ct. R. 2:704(a). However, an expert in a civil matter may testify about the "facts, circumstances or data" he or she used in forming his or her opinion. See. Va. Code § 8.01-401.1; see also Foley v. Harris, 223 Va. 20, 29, 286 S.E.2d 186, 191 (1982) ("It is permissible for an expert witness to give reasons for his opinion, but if he testifies to information received from other sources, such information may be considered only for the purpose of determining what weight should be given to the expert's conclusion.") A court should admit testimony that "assist[s] the trier of fact to understand the evidence or to determine a fact in issue." Va. Code § 8.01-401.3.
The information about which Rood and Hammaker intend to testify, and which VNG asks the Court to exclude, largely pertains to the facts, circumstances, and data that affect their opinions about the just compensation that VNG owes CSI. For instance, testimony about the location of easements on CSI's property and how CSI uses its property provide context for Rood's opinion about the effect of the Easement on CSI's property; Hammaker's testimony about CSI's use of its riparian area serves a similar function. None of that testimony constitutes a legal opinion. Moreover, the jury must determine the just compensation that VNG owes CSI because of the Easement VNG acquired on CSI's property. Just as VNG may offer its appraiser's opinion about the extent of damage the Easement caused to the remainder of VNG's property, so too may CSI offer its experts' interpretations of how the Easement affected the value of CSI's property.
VNG identifies only one instance where CSI seeks to offer a legal opinion through Rood or Hammaker, namely where it hopes to have Rood testify about whether CSI owns property past the mean low-water mark. Rood himself concedes that such a determination requires him to make a legal determination, something which the law does not allow. (See Rood Dep. 23:8-26:9, May 7, 2019.) The Court therefore SUSTAINS VNG's motion as to Rood's legal opinion about whether CSI's ownership rights extend past the mean low-water mark, but it otherwise OVERRULES VNG's motion.
VI. Motion to Exclude Expert Opinions of Thomas Stokes
CSI plans to call Thomas Stokes as an expert on environmental matters to testify that VNG's acquisition of the Easement required CSI to make certain adjustments to its property. (Resp't Mem. Opp'n Pet'r Mot. Limine Exclude Expert Ops. Thomas Stokes Ex. A.) These adjustments include:
• Moving the Spotico drydock as far from the easement as possible;(Id.)
• Erecting a barrier wall on the property;
• Moving the offices in the West Yard to the Southern [sic] edge of the Spotico parcel;
• Creating a zone around the easement free from "hot work" (welding, grinding, cutting, etc.);
• Installing an automatic early detection and warning system on the property to [identify] the presence of natural gas, and to alert employees and workers; and
• Safety training pertaining to the VNG easement for employees and workers.
CSI identified numerous bases for Stokes's opinions, four of which VNG challenges: (1) his ALOHA methodology, (2) his reliance on an EPA publication entitled "Risk Management Program Guidance for Offsite Consequence Analysis," (3) his reliance on PHMSA statistics and historical data about other Pipeline incidents, and (4) his reliance on certain Occupational Safety and Health Administration ("OSHA") standards. (Pet'r Mot. Limine Exclude Expert Ops. Thomas Stokes 1-5.) VNG claims that CSI has not established a factual foundation for his "ALOHA analysis, his reliance on the 'Risk Management Program Guidance for Offsite Consequence Analysis' published by the EPA . . . , or his reliance on PHMSA statistics regarding historic Pipeline incidents." (Pet'r Reply Mem. Supp. Mot. Limine Exclude Expert Ops. Thomas Stokes 1.) VNG also asserts that CSI has laid inadequate foundation for Stokes's opinion that OSHA regulations regarding "hot work" necessitate CSI's mitigation efforts. VNG argues that Stokes's "interpretation of OSHA regulations is an inadmissible legal opinion," and that the "OSHA regulations do not apply because, among other reasons, gas in the Pipeline is more than 35 feet from the area of hot work; it is shielded by a steel pipe; and it is physically prevented from entering any work area at CSI." (Id. at 2.) CSI argues that VNG's complaints about the foundation for Stokes's opinion go to the weight the factfinder should ascribe to his opinion and not its admissibility. (See Resp't Mem. Opp'n Pet'r Mot. Limine Exclude Expert Ops. Thomas Stokes 3.)
At the October 7 hearing, CSI counsel stated that Stokes would not testify about the ALOHA analysis. For the reasons stated in Part IV.C, where the Court sustained VNG's Motion to Exclude Evidence Regarding Other Pipeline Incidents and Any Opinions Based on Such Evidence, the Court excludes any of Stokes's opinions based on PHMSA statistics or historical reports. Thus, the Court addresses only the admissibility of Stokes's opinions based on the EPA "Risk Management Program Guidance for Offsite Consequence Analysis" and his reliance on certain OSHA provisions.
The EPA "Risk Management Program Guidance for Offsite Consequence Analysis" upon which Stokes relies has no applicability to this case. It applies to "owners or operators of stationary sources." 40 C.F.R. § 68.1 (2019). "The term stationary source does not apply to transportation . . . of any regulated substance . . . under the provisions of this part [of the CFR]." 40 C.F.R. § 68.3 (2019). "Transportation includes . . . transportation subject to regulation under 49 CFR part[] 192, (Id.) which includes "pipeline facilities and the transportation of gas." 49 C.F.R § 192.1(a) (2019). Thus, the "Risk Management Program Guidance for Offsite Consequence Analysis" does not apply to the transportation pipeline at issue here, let alone to CSI's operation of its shipyard. Therefore, the Court excludes any of Stokes's opinions based upon that EPA Guidance.
Regarding his opinions about OSHA regulations requiring CSI's mitigation efforts, CSI designated Stokes to testify as follows:
Mr. Stokes is also expected to testify that in his knowledge and experience, the Federal requirements for a safe workplace propagated by OSHA require [CSI] to adapt operational practices and employee training to meet safety requirements. It is Mr. Stokes' opinion that one such adaptation is a safety program to ensure OSHA compliance. ...(Rep't Mem. Opp'n Pet'r Mot Limine Exclude Expert Ops. Thomas Stokes Ex. A 40-41).
29 CFR 1915.503(a)(1) requires that employers designate areas for hot work that are "free of fire hazards," and 29 C.F.R. 1915.503(b)(1) which states that "the employer must keep all hot work areas free of new hazards that may cause or contribute to the spread of fire." Mr. Stokes is expected to rely on his knowledge and experience to testify that compliance with those federal requirements in the light of the introduction of VNG's high-pressure natural gas transmission line in his opinion will require the vacating of the area around the easement from hot work, and other similar ignition sources, as well as additional employee and worker training on safety and fire alert and suppression practices in the impacted area.
The first referenced OSHA regulation, 29 C.F.R. 1915.503 (a)(1), provides:
Designated Areas. The employer may designate areas for hot work in sites such as vessels, vessel sections, fabricating shops, and subassembly areas that are free of fire hazards.
VNG argues, citing CSI's Fire Protection Plan, that CSI has not designated any areas for hot work under these regulations, and 29 C.F.R. 1915.503(a)(1) therefore does not apply. The Court agrees.
The second referenced regulation, 29 C.F.R. 1915.503(b)(1), states:
Maintaining fire hazard-free conditions. The employer must keep all hot work areas free of new hazards that may cause or contribute to the spread of fire.
Mr. Stokes's designation makes no reference to the relevant OSHA standard at 29 C.F.R. 1915.503(a)(2)(ii), which states:
The employer shall authorize employees to perform hot work only in areas that are free of fire hazards, or that have been controlled by physical isolation, fire watches, or other positive means.(emphasis added).
Both 29 C.F.R. § 1915.509 ("Fire Protection in Shipyard Employment") and CSI's own fire protection plan define physical isolation as "the elimination of a fire hazard by removing the hazard from the work area (at least 35 feet for combustibles), by covering or shielding the hazard with a fire-resistant material, or physically preventing the hazard from entering the work area."
VNG argues that CSI does not need to take additional steps to comply with these OSHA regulations because the fire hazard in this case (the natural gas in the Pipeline) has been controlled by physical isolation within the meaning of the regulation. It flows inside a steel pipe eighty-five feet below ground. Stokes plans to testify that the OSHA regulations require CSI to take additional steps, like "vacating the area around the easement from hot work," to ensure the safety of its employees. (Resp't Mem. Opp'n Pet'r Mot. Limine Exclude Expert Ops. Thomas Stokes Ex. A.) Based on the information before the Court, 29 C.F.R. § 1915.503(a)(2) does not provide a basis for Stokes's opinion. Therefore, Stokes can offer his opinion only if he identifies either (i) another OSHA regulation that requires CSI to implement additional safety measures or (ii) evidence that VNG has inaccurately represented where it located or how it constructed the Pipeline that the natural gas has not been physically isolated.
Similarly, before Stokes can opine that 29 C.F.R. § 1915.503(b)(1) requires CSI to take additional protective measures to mitigate the safety risks associated with the Pipeline, he must first establish that the natural gas contained in the subterranean steel pipe is a "new hazard that may cause or contribute to the spread of a fire." The Court therefore SUSTAINS VNG's motion to exclude Stokes's opinions other than as it pertains to the OSHA regulations, which the Court RESERVES pending supplementation by CSI about the matters identified herein.
VII. Motion to Exclude Evidence Regarding Tax Assessments , Tax Valuations, or Tax Categorizations of CSI Property
CSI moves to exclude evidence of property tax assessments from the City of Norfolk, as well as "other City tax-related documents as evidence of the value or categorization" of any property at issue in this case. (Resp't Mot. Limine Exclude Evid. or Arg. Regarding Tax Assessments, Tax Valuations, or Tax Categorizations of Colonna's Ship Yard, Inc.'s Property 1.) VNG responds that it seeks admission of evidence of personal property tax bills to show that CSI has been paying personal property taxes on most of the equipment it now claims as fixtures. VNG does not intend to offer CSI's personal property tax bills to show the value of any of the equipment but only to show whether certain items are fixtures.
The test in Virginia for determining whether an item is a fixture, as articulated in Danville Holding Corp., 178 Va. at 232, 16 S.E.2d at 349, includes no reference to the locality's treatment of that item for local taxation purposes. The Court agrees that any probative value that the personal property tax bills might have is substantially outweighed by the likelihood that they would confuse the jury. The Court SUSTAINS this motion and excludes VNG's evidence of CSI's local tax assessments and related documents regarding the tax categorization of personal property at the shipyard.
VIII. Motion to Exclude Evidence Regarding Previous Appraisals of CSI's Property
CSI moves to exclude four appraisal reports that VNG intends to offer at trial, which were prepared in 2013, 2014, 2015 and 2016, respectively. CSI argues that all appraisals showing a valuation as of a date other than the date of filing of the petition for condemnation are irrelevant and not representative of the value at issue in this matter. It also argues that the appraisal reports do not address the same property at issue in this matter but only parts of the property. Finally, CSI argues that the appraisal reports constitute inadmissible hearsay.
VNG responds that it intends to offer the appraisal reports to show that no prior appraiser hired to value CSI's real property has ever included the value of the shipyard's equipment in the appraised amount. It is unclear from VNG's filing whether it intends to offer the prior appraisers' opinions as to the value of any part of CSI's property.
The two Virginia Supreme Court cases on which CSI relies are not on point and do not require exclusion of prior appraisal reports. VNG has not addressed CSI's argument that any statements contained in those reports represent hearsay statements that CSI has not adopted and that an exception to the hearsay rule does not cover.
The Court OVERRULES the motion with respect to CSI's relevance objection relating to the date of the valuation. The Court makes no determination as to whether it should exclude the appraisal reports as hearsay and asks VNG to provide further legal argument respecting that issue. The motion will remain under advisement pending further briefing by VNG.
Conclusion
The Court's rulings herein are determinative at trial. Where the Court has indicated that a party must provide additional foundation to support the admissibility of evidence, the proponent of such evidence shall neither mention the evidence in its opening statement nor seek to elicit testimony concerning the evidence without the Court's express permission.
Counsel are directed to file written objections to this Order within fourteen days. Further endorsements by counsel are waived.
The Clerk is DIRECTED to mail and email a copy of this Order to all counsel of record.
It is so ORDERED.
Entered: October 31, 2019
/s/_________
Mary Jane Hall, Judge