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Court restricts comments by landowners in trial

Virginia Lawyers Weekly//July 1, 2022

Court restricts comments by landowners in trial

Virginia Lawyers Weekly//July 1, 2022

Where land was condemned for an easement required for construction of a natural gas pipeline, any evidence or statements by landowners or counsel bearing on the land’s “value to me,” or that they are being forced to sell, cannot afford to compromise and will have to “live with this forever” were excluded from the damages trial.

Background

Mountain Valley Pipeline or MVP, is constructing an interstate natural gas pipeline. MVP commenced a condemnation action under the Natural Gas Act to acquire a permanent easement and temporary easements on numerous properties, including this property located in Roanoke County and owned by the Flores.

Before the court are: (1) MVP’s motion in limine; (2) MVP’s plan for a jury view and (3) the landowners’ motion to submit the larger parcel issue to the jury.

MVP motion in limine

MVP argues that the court should limit publication of any photographs of the pipeline marker to prevent misuse and prejudice to MVP. If photographs of the marker are allowed at all, they should be shown to the jury only once.

MVP’s motion in this case will be granted in part and denied in part. Landowners may show photographs of the pipeline marker with the language on the marker, but they may not do so in connection with excluded evidence. The court, however, will not limit the landowners to only showing a pipeline marker photograph once. If appropriate, it may be shown more than once. As with every exhibit, the exhibit should not continue to remain before the jury following its use.

MVP argues that the court should prevent defendants from presenting personal information about themselves or counsel. The court agrees to the extent any comments are irrelevant, are designed to elicit sympathy, are disparaging of the opposing party or counsel or are otherwise inappropriate. The court, however, will not prohibit the mention of family members when making analogies in closing argument, for example, but cautions counsel regarding excessive or irrelevant references.

MVP argues that the court should exclude any evidence or statements by landowners or counsel bearing on “value to me.” The court has excluded such evidence in previous cases and will do so again. A landowner is permitted to testify to his or her knowledge of the land and attributes of the property.

MVP argues that the court should prevent landowners and counsel from making statements that they do not desire to sell easements to MVP. Such statements could include comments that landowners are being forced to sell, cannot afford to compromise and will have to “live with this forever.” The court agrees that such comments are not related to the market value concept. They will be excluded.

MVP asks the court to instruct landowners and counsel not to make any verbal or nonverbal statements to the jury during the jury view and not to display signs or make gestures to the jury. The court will instruct all parties and counsel not to speak to the jury during the jury view. Of course, it would be impossible for the court to limit all nonverbal conduct during the view. Looking in one direction and not another could be construed as a nonverbal gesture.

The court, however, will not permit antics designed to call attention to particulars during the view, such as pointing repeatedly at a sign or waving a sign in front of the jurors. Also, the court will not permit the showing of a map during the view unless the parties agree upon the map.

Jury view

MVP has submitted a plan for a proposed jury view. Landowners already moved for a jury view, and the court granted that motion subject to the conditions during the trial dates regarding logistics (including, but not limited to, access to the property, weather and transportation), security (including, but not limited to, the health and safety of the jurors, parties, counsel and court personnel) and time constraints. The court takes MVP’s plan under advisement pending a pre-view of the property and any agreements reached by the parties.

Landowners motion in limine

Landowners ask the court to submit the issue of the larger parcel to the jury. Although not styled as such, landowners’ motion is essentially a motion to reconsider, as they previously argued that the larger parcel issue should be submitted to the jury, and the court rejected that argument. Landowners offer no grounds to justify reconsideration of the court’s previous order.

MVP’s motion in limine granted in part, denied in part. Landowners’ motion in limine denied. MVP’s plan for jury view taken under advisement.

Mountain Valley Pipeline LLC v. 5.88 acres of land owned by Wendell Wray Flora and Mary McNeil Flora, Case No. 7:19-cv-00225, June 16, 2022. WDVA at Roanoke (Dillon). VLW 022-3-255. 9 pp.

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