                                                                            FILED
                           NOT FOR PUBLICATION                               JUL 01 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 13-15953

              Plaintiff - Appellee,              D.C. No. 4:09-cv-00488-AWT-
                                                 DTF
 v.

2.739 ACRES OF LAND, more or less,               MEMORANDUM*
situated in the City of Nogales, County of
Santa Cruz, State of Arizona, and HOLY
CROSS HOSPITAL, INC.,

              Defendants - Appellants.


                  Appeal from the United States District Court
                           for the District of Arizona
               A. Wallace Tashima, Senior Circuit Judge, Presiding

                        Argued and Submitted June 11, 2015
                             San Francisco, California

Before: CHRISTEN and WATFORD, Circuit Judges, and ROTHSTEIN,** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable Barbara Jacobs Rothstein, Senior District Judge for the
U.S. District Court for the Western District of Washington, sitting by designation.
                                                                             Page 2 of 5
      This is a matter in which Appellants contest the valuation of land being

condemned by Appellee. The issues on appeal involve the district court judge’s

rulings on the admissibility of certain testimony and appropriateness of two

proposed jury instructions.

      1. The district court did not abuse its discretion in admitting the testimony

of Philip Aries, a real estate broker but not an appraiser, as to the value of the

subject property. Holy Cross’ own real estate broker, Gabriel Gastelum, also

testified as to the value of the property, and Aries’ testimony was elicited as a

response. Any issues with respect to Aries’ qualifications thus apply to both

parties’ experts. See United States v. 4.85 Acres of Land, 546 F.3d 613, 617 (9th

Cir. 2008) (requiring prejudice to reverse evidentiary rulings).

      Judicial estoppel does not apply. The government’s opposition brief

promised that Aries would not testify as to the “value of the subject property in the

before and after condition,” and at the motion in limine hearing, the government

promised that “Aries will not testify as to an ultimate opinion of value. He’s not

going to say that the property is worth a dollar a square foot or place some value on

the property.” Aries did not offer a before-and-after valuation at trial. Aries did

assert a valuation of $1 per square foot, but he at first appeared to discuss only the

approximately $1 per square foot price of a previous sale of Holy Cross property,
                                                                           Page 3 of 5
and he later applied this value to the subject property only in response to a question

concerning Gastelum’s $2 to $2.50 valuation. The government gained no unfair

advantage from the $1 valuation, because the government had asserted, at the

motion in limine hearing, that Aries’ opinion was that the bulk of the land “isn’t

worth the cost of improvement” at all. Cf. Hamilton v. State Farm Fire & Cas.

Co., 270 F.3d 778, 783 (9th Cir. 2001). Aries’ opinion that the hospital property

was “basically useless” had previously been disclosed.

      Any error that may have resulted from admission of Aries’ undisclosed

calculations supporting his opinion of the property’s value was not prejudicial.

Aries’ opinion that the land was worthless was also supported by his statements

regarding the difficulty of access to the subject property and potential Clean Water

Act permitting issues associated with access.

      2. The district court did not abuse its discretion in admitting Aries’

testimony about the IHOP sale. That sale was not used as a comparable, and no

prejudice would have resulted if it had, given its $12 per square foot sale price.

      3. Holy Cross argues that testimony regarding Holy Cross’ earlier sale to

the Arizona Department of Transportation (ADOT) and ADOT’s sale to the

General Services Administration (GSA) should have been excluded because of the

buyers’ condemnation powers. However, it was not an abuse of discretion to admit
                                                                           Page 4 of 5
the sale to ADOT, because that sale was not used as a comparable and was instead

offered to rebut testimony that Holy Cross was reluctant to sell its property. That

sale was properly disclosed in a letter by Aries that Holy Cross attached to its

motion to exclude Aries’ testimony. It was also not an abuse of discretion to admit

the sale to GSA, given the government’s evidence that the sale had been voluntary.

See United States v. 10.48 Acres of Land, 621 F.2d 338, 339 (9th Cir. 1980).

      4. The district court did not abuse its discretion in rejecting Holy Cross’

proposed Jury Instructions Nos. 6 and 7. Holy Cross argues that the jury should

have been instructed that Holy Cross’ sale to ADOT and ADOT’s sale to the GSA

might have been impacted by condemnation blight. But the proposed instructions

are not responsive to that concern, because they instruct the jury to consider the

potential impact of condemnation only on the valuation of the subject property, not

on that of comparable sales.

      5. The district court did not abuse its discretion in allowing Jay Vance to

calibrate his valuation by considering differences in development costs between the

comparable and subject properties. See United States v. 100 Acres of Land, 468

F.2d 1261, 1266 (9th Cir. 1972) (allowing consideration of selling, advertising,

development, and other expenses to ensure that comparable sales were indeed

comparable). The district court also properly found that Vance had not double-
                                                                         Page 5 of 5
counted development costs, but had instead deducted $1 per square foot in addition

to the previous reduction to account for the subject property’s comparatively

greater topography issues.

      AFFIRMED.
