                             UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                             No. 10-1344


SUN YUNG LEE,

                Plaintiff - Appellant,

           v.

ZOM CLARENDON, L.P.,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   T. S. Ellis, III, Senior
District Judge. (1:09-cv-00402-TSE-JFA)


Argued:   January 26, 2011                    Decided:   May 6, 2011


Before WILKINSON and KEENAN, Circuit Judges, and Irene C.
BERGER, United States District Judge for the Southern District
of West Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Nini Tin, Mark Davis Cummings, SHER, CUMMINGS & ELLIS,
Arlington, Virginia, for Appellant.     John E. Rinaldi, WALSH
COLUCCI LUBELEY EMRICH & WALSH, PC, Prince William, Virginia,
for Appellee.   ON BRIEF: E. Andrew Burcher, G. Evan Pritchard,
WALSH COLUCCI LUBELEY EMRICH & WALSH, PC, Prince William,
Virginia, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             The instant appeal involves a dispute over a 14-foot

wide    L-shaped    portion         of    property    located      in    the    Clarendon

subdivision in Arlington, Virginia. Here, we consider whether an

express or prescriptive easement exists over the property.                               We

also    review   the     district         court’s    ruling   to    disallow       expert

opinion with respect to the creation of the purported express

easement. For the reasons that follow, we affirm the district

court’s judgment.



                                             I.

             Plaintiff-Appellant, Sun Yung Lee (hereinafter “Lee”),

the     proponent   of    the       disputed      easement,     owns      the    putative

dominant     estate,     which      for    purposes    of   this    opinion       will   be

referred to as lots 238, 239, 240 of the Clarendon subdivision

and portions of lots 217 and 241 (the “Reamy House”). Relevant

to    this   dispute,    the     sole      Defendant-Appellee,           Zom    Clarendon,

L.P. (“Zom”), a Delaware limited partnership, owns the remainder

of lots 217 and 241, as well as, lots 242 through 247 of the

Clarendon Subdivision property. The parties’ land is contiguous.

Lee’s    property   forms       a    triangle       which   faces       both   Washington

Boulevard and North Irving Street. (Appellant’s Brief at 10).                            A

portion of this property consists of commercial business spaces

which are front-facing on North Irving Street. Lee claims she is

                                             2
entitled to use the paved driveway across Zom’s property for

access to the rear of the buildings located on her property.

            Prior to discussing the litigation before the district

court, a brief discussion of the relevant conveyances critical

to the ownership history of the disputed land is warranted.



                                     A.

            In 1900, a large tract of land in Arlington, Virginia,

was subdivided into approximately 300 lots, currently known as

the Clarendon Subdivision. (Joint Appendix (“J.A.”) at 34.) Lulu

Cameron Follansbee purchased lot 217 and lots 238-242 of the

Clarendon    subdivision   in    January   1924.   (Id.    at   35.)   By   deed

recorded on July 7, 1926, Follansbee conveyed portions of lots

217 and 241 to Judson Reamy. (Id. at 37-38.) This conveyance

included a building constructed over portions of lots 217 and

241 which is referred to by the parties as the Reamy House or

Reamy property. The balance of Follansbee’s lots was transferred

through     various   mesne     conveyances   which       resulted     in   Dick

Missakian’s purchase of the lots on October 29, 1927. (Id. at

42-43.)     On July 10, 1928, Missakian recorded a deed of trust on

lots 238-240, 242, and the portions of lots 217 and 241 that did

not include the Reamy property. (Id. at 45-48.) This deed of

trust secured a loan in the amount of $32,500 made by Mary

Hutchison to Missakian with respect to forty promissory notes.

                                      3
Claude H. Woodward and H. Glenn Phelps were named as trustees

(the “Woodward trustees”). The Woodward Deed of Trust authorized

the   trustees     to     release    and    re-convey        the   property      back    to

Missakian,    his      heirs   and    assigns,        upon    full    payment     of    the

notes.     However, upon default, the trustees were permitted to

sell the property.         (Id.)


            By     deed    dated     July    14,      1928,    Missakian        sold    the

parcels to Kristopher Dadaian subject to the Woodward deed of

trust. (Id. at 50.) 1          In September 1929, Dadaian conveyed the

properties       to     B.M.   Hedrick,         who    likewise        purchased        the

properties subject to the Woodward deed of trust. (Id. at 55.)

Critical to the instant dispute, on March 1, 1932, the Woodward

trustees     and      Hutchison,     the    note      holder,        executed    a     deed

partially releasing Hedrick from the terms of the Woodward deed

of trust. (Id. at 31.) This deed of partial release revealed

that Hedrick had sold portions of lots 241 and 242 and paid

$4,500 to Hutchinson. 2 (Id.) Hutchinson “directed” the trustees



      1
       The property was also encumbered by a second deed of trust
which named Frank L. Ball and Lawrence Douglas as trustees and
Follansbee as beneficiary. (Id. at 52.) This second deed of
trust was subordinate to the Woodward Trust and is not material
to the instant dispute given the Woodward Trustees’ foreclosure
on the property in 1932.
      2
       By deed dated January 8, 1932, Hedrick sold portions of
lots 241 and 242 to Enoch A. Norris. (Id. at 61-62.) This deed
did   not   include  any  language   respecting  an  easement.
(Continued)
                                            4
to “release, relinquish, grant and convey” to Hedrick title to

lot   242   and   the   portions    of    lots     217   and   241   that   did   not

include the Reamy property,


      subject however, to a right of way for ingress and
      egress purposes for the benefit of the owners of lots
      238, 239, and 240 over the following portion of land
      hereby released and contiguous thereto said right of
      way being bounded and described as [lot 217].


(Id.) (Emphasis added).            Lots 238-240 remained subject to the

Woodward deed of trust. Only the Woodward trustees and the note

holder, Hutchison, signed this deed of partial release.                       It is

upon this document that Lee relies for the assertion that an

express easement over Zom’s land was reserved.

              By 1936, title to lots 217, 241 and 242 sans the Reamy

House   was    united    in   Charles      G.    Schott.   After     a   series   of

conveyances, Zom ultimately purchased this property in 2006 from

the family of Channing Strother.

              Lots 238-240 remained subject to the Woodward deed of

trust until May 1935, when Hedrick defaulted on the loan.                          At

the   direction    of   the   note       holder,    Hutchinson,      the    Woodward



Additionally, on May 27, 1932, Hedrick sold the portions of lots
217, 241 and 242 that he still owned to Hannah F. M. Hedrick,
subject to “the restrictions and reservations of record.” (Id.
at 63-64.) Notably, this deed did not include a specific
reference to the purported easement created in the deed of
partial release made just months earlier.



                                          5
trustees foreclosed on the property and sold the lots, “less and

except, the land released by deed[,]” at a public auction to

Union Investment Company of Washington for $20,000. (Id. at 69-

71.)   It   is    upon   this    foreclosure        that    Lee     contends     that    an

easement was created.            Remarkably, the Trustee’s Deed did not

include     a    reference      to   any     reservation       or     creation    of     an

easement. In 1943, Teck Construction Co. purchased these lots

and in 1958, purchased the Reamy property, thereby merging title

to the Reamy property and lots 238-240 in a single owner. In

1963, Teck sold these lots to Lee’s family. (See id. at 79-87.)



                                             B.

            On or about March 19, 2007, as part of its plans to

develop its property, Zom erected a chain link fence blocking

access to the driveway utilized by Lee. (J.A. at 27.) Zom plans

to   construct     a   high   rise     building      with     both    residential       and

retail space over the disputed land. (Appellant’s Brief at 2-3.)

Lee advised Zom that the fence interfered with her right of way

and requested that it be moved. (J.A. at 28.)                        The fence was not

moved and on March 17, 2009, Lee commenced this civil action in

Arlington County Circuit Court seeking a declaration confirming

that she has a valid easement with a legal right of use without

interference      from   Zom     and    an       injunction    enjoining       Zom   from

blocking her access to the easement.

                                             6
            Zom removed the case to the United States District

Court for the Eastern District of Virginia invoking the court’s

diversity jurisdiction. Upon consideration of Lee’s motion to

remand    and    following    jurisdictional         discovery,      the    district

court     ultimately      determined        that   it    had      subject     matter

jurisdiction pursuant to 28 U.S.C. § 1332.

            The parties thereafter filed cross motions for summary

judgment. Lee advanced three theories to support her assertion

that an easement existed which allowed her to cross Zom’s land

to access portions of her land lots. Generally, Lee claimed that

an   easement    for   the   benefit    of     lots     238-240    was     expressly

reserved     and    created        in   a     deed      of     partial      release.

Alternatively, Lee claimed she has an easement by prescription

or implication to a separate area of land surrounding a building

known between the parties as the Reamy House.                        The district

court granted in part and denied in part the parties’ motions.

Pertinent to the discussion that follows, the district court

found that an express easement was not created because neither

the trustees nor the note holder of the Woodward deed of trust

had the authority to create an easement in the deed of partial

release; that Lee inappropriately relied on expert opinion to

support the legal conclusions that a valid easement was created

in the deed of partial release and that the deed of partial

release    was   within    Zom’s    chain     of   title;    that,    pursuant    to

                                        7
Virginia law, Lee’s claim of an easement by implication fails

because she could not establish that the easement existed at the

time of severance in 1926; and that genuine issues of material

fact existed which precluded an award of summary judgment on

Lee’s claim of easement by prescription. Lee v. Zom Clarendon,

L.P., 665 F. Supp. 2d 603 (E.D. Va. 2009), judgment clarified

(Nov. 20, 2009). 3

          The district court thereafter conducted a bench trial

with respect to Plaintiff’s claim of prescriptive easement and

found in favor of Zom.   The court determined that Lee’s use of

the paved driveway was continuous, uninterrupted and with the

knowledge and acquiescence of the driveway’s owners, but her use

was not adverse, exclusive or under a claim of right. Lee v. Zom

Clarendon, L.P., 689 F. Supp. 2d 814 (E.D. Va. 2010).

     3
       On November 5, 2009, Lee moved to alter the judgment to
clarify the parties’ property descriptions and to assert that
the court mischaracterized her attorney’s statements during the
hearing with respect to her claim of an express easement.   The
court, on November 20, 2009, granted the modification of the
description of Lee’s property, but denied her motion to
reconsider the court’s ruling with respect to whether the
easement was expressly created.

          On December 22, 2009, Lee sought to appeal the court’s
October 22, 2009 and November 20, 2009 Order to this Court.
However, on February 1, 2010, she moved to dismiss the appeal,
pursuant to Rule 42(b) of the Federal Rules of Appellate
Procedure, on “terms agreed to by the parties.”     We dismissed
the action the following day.




                                8
            On March 23, 2010, Lee filed the instant notice of

appeal    to    seek   appellate        review   from    the    district        court’s

February 24, 2010 Order entering judgment for defendant Zom.

(J.A. 1063). 4      Lee seeks our review of the district court’s grant

of summary judgment with respect to her claim of an express

easement,      as   well    as    the   evidentiary     ruling      on    her    expert

opinion     reports.        She    also     appeals     the    district         court’s

determination that a prescriptive easement does not exist over

Zom’s land. 5



                                           II.

            We review a district court’s award of summary judgment

de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir.

2007) (en banc) (citing Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc)). Summary

judgment shall be granted if the movant shows that there is no

genuine   dispute      as    to   any     material    fact    and   the    movant   is

entitled to summary judgment as a matter of law. Fed.R.Civ.P.

56(a). We review a district court’s decision whether to admit

     4
       On July 29, 2010, Lee moved this Court to certify two
questions to the Supreme Court of Virginia. Appellee contested
the motion and on August 27, 2010, this Court denied the
request.
     5
       Lee does not appeal the district court’s ruling                             with
respect to her theory of an easement by implication.



                                            9
expert testimony for abuse of discretion. O'Neill v. Windshire-

Copeland Assocs., 372 F.3d 281, 284 (4th Cir. 2004). Finally, we

review a district court’s judgment entered after a bench trial

under a “mixed standard of review.” Universal Furniture Int’l,

Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 427 (4th Cir.

2010).     Pursuant    to   this    standard,   factual      findings    may    be

reversed only if clearly erroneous, while conclusions of law are

reviewed de novo. (Id.)



                                     III.

                                      A.

              Lee contends that she is “the holder of an express

Right of Way [or easement] validly reserved in the Deeds of

Partial Release.”      (Appellant’s Brief at 17; see also J.A. 57-

58,    59-60.)    Generally,   Lee    asserts    that   in    1932,     the   note

holder, Mary B. Hutchinson, the Trustees, Claude M. Woodward and

H. Clarke Phelps, and fee simple owner, B.M. Hedrick, entered

into a partial release of a portion of the property encumbered

by the Woodward Deed of Trust.             Lee contends that this deed of

partial release included a reservation of an easement to benefit

lots 238-240 of her property. She asserts that, upon Hedrick’s

default, the Woodward Trustees foreclosed upon his property and

proceeded to sell the land by public auction. She contends that,

upon   this    foreclosure,   the   easement    reserved     in   the    deed   of

                                      10
partial    release      created      an     easement      on    what      is    now    Zom’s

property. While this Court finds suspect Lee’s contention that

an   easement      springs         forth     as   a      result      of     a    Trustee’s

foreclosure,      the    initial     consideration         must      begin      with    Lee’s

assertion that the easement was validly reserved in the deed of

partial release.

            As    an    initial      matter,      Lee,    in     her      opening      brief,

contends that the district court erred in its grant of summary

judgment by finding that neither the trustee nor the note holder

independently had the power to reserve an express easement in

the 1932 Deed of Partial Release. Instead, Lee asserts that the

district court ignored the “fee simple owner’s role as a party

to   the   reservation        of   the     easement”     in    the     deed     of    partial

release because his signature was not on the deed of partial

release. (Appellant’s Brief at 14.) Lee argues that B.M. Hedrick

was a named party to the Woodward Trustee’s Deed of Partial

Release and that the release and re-granting of certain property

to   Hedrick     was    for   his    benefit.     Lee     also    argues        that    as   a

“beneficiary/grantee, B.M. Hedrick’s signature is not required

on Deeds of Partial Release.” (Id.) Perhaps, seeking a way to

sidestep the district court’s ruling that neither the trustee

nor the note holder had the authority to create an easement, Lee

seeks to carve out a distinction in her argument, now asserting

that the reservation of the easement is valid due to the fee

                                             11
simple owner’s role in the “transaction” involving the deed of

partial     release.   Zom,   however,     contends    that      Lee    makes    the

argument, that the role of the fee simple owner was ignored, for

the first time on appeal. We agree.

            “Absent exceptional circumstances, of course, we do not

consider issues raised for the first time on appeal. Rather, we

consider such issues on appeal only when the failure to do so

would result in a miscarriage of justice.”              Robinson v. Equifax

Info. Serv., LLC, 560 F.3d 235, 242 (4th Cir. 2009)(internal

citations and quotations omitted). The principle applied in this

rule   is   that   appellate    courts     “should    not   be    considered      a

second-shot forum, a forum where secondary, back-up theories may

be mounted for the first time.             Parties must be encouraged to

‘give it everything [they have]. . . at the trial level.”                   Tele-

Communications, Inc. v. C.I.R., 104 F.3d 1229, 1234 (10th Cir.

1997)(internal quotations omitted). “Propounding new arguments

on appeal in an attempt to prompt us to reverse the trial court

undermines important judicial values.” (Id.)

             Before this Court, Lee’s argument is distinct in that

she contends the issue is “whether the fee simple owner, Judge

B.M.   Hedrick,    reserved    the   express   easement     in    the    Deeds    of

Partial release as a non-signatory named party.”                   (Appellant’s

Reply at 3.) This is an argument that was not squarely raised or

addressed by the district court.

                                      12
            A    review    of   the      record       before       the    district    court

reveals that Lee initially asserted the express easement was

reserved by the note holder through the deed of partial release.

(See Memorandum in Support of Plaintiff’s Motion for Summary

Judgment at 1, Lee v. Zom Clarendon, L.P., 665 F. Supp. 2d 603

(E.D. Va. 2009) (No. 1:09cv402), judgment clarified (Nov. 20,

2009)).   She     later    stated     that      the    “note-holder         (lienor)     and

trustee   validly      granted,     executed          and   recorded       the   Deeds    of

Partial release . . . by the powers vested in them[.]” (Id. at

14); see id. at 16 (“In order to retain the best value of the

property remaining under the Deeds of Trust, the note-holder

expressly       created   the   [easement]            and    did    not    release     [the

easement] from the lien of the Deeds of Trust.”))                                During a

hearing   on     the   parties’     motions       for       summary       judgment,    Lee,

through counsel, conceded that the “trustees by themselves, in a

vacuum,     couldn’t      create    an    easement,          I     agree    with     that.”

(Transcript Motions Hearing at 21, Zom Clarendon, L.P., 665 F.

Supp. 2d 603 (E.D. Va. 2009) (No. 1:09cv402), judgment clarified

(Nov. 20, 2009)). Instead, Lee argued that the note holder had

the power to create the easement. (Id.) When prompted by the

court to explain the note holder’s power, Lee pressed that the

power to create the easement existed because “the note holder

has an interest to get the full value [of the property] . . . in

the event of default.”             (Id. at 22.)             Lee likened the deed of

                                           13
partial release to a contract and stated that the easement was

retained as consideration with the fee simple owner’s consent.

(Id. at 23.) The district court appropriately concluded that a

note holder does not hold any legal interest or estate in the

property and thereby has no authority to create an easement.

Now, Lee wishes to shift this Court’s focus from the Trustee and

the note holder to the fee simple owner.

          In response to Zom’s assertion that she is proffering

a new argument on appeal, Lee argues that the deeds of partial

release, which included Hedrick as a named party, were provided

to the court as part of its joint exhibits (Appellant’s Reply at

6); that her arguments were made during the October 9, 2009

motions hearing and pursuant to her motion to alter the court’s

judgment pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure (Id. at 7); and that the district court ruled on the

issue when it stated “[a]lthough named a ‘party of the second

part’ in the deed of partial release, Hedrick did not sign the

instrument.”    (Id.)   We   find   Lee’s   position    tightly    drawn   and

unpersuasive. To be sure, the district court made no specific

finding or conclusion of law about the fee simple owner’s part

in the transaction. The district court merely observed in its

discussion of the conveyances underlying this dispute that the

deed of partial release was not signed by the fee simple owner.

Additionally,    the    mere    inclusion     of   an    exhibit     and   an

                                     14
undeveloped argument are not sufficient to preserve an issue on

appeal.   This is so where an issue is raised but not pursued. 6

Therefore, we decline to consider Lee’s new argument in support

    6
       At the hearing on Lee’s motion to alter the        district
court’s judgment, the district court provided Lee         with an
opportunity to explain what she considered as the         district
court’s misunderstanding of her argument. The following   colloquy
occurred:

               THE COURT: Now, let’s turn to the next
          point that you want to reargue, which is that
          you want to reargue your position that the note
          holder had the power to agree to the creating
          [of] this easement.

               ATTORNEY CUMMINGS: I don’t want to reargue
          anything, your Honor. I am not permitted to
          reargue.

               THE COURT: Right.

               ATTORNEY CUMMINGS: I just wanted to bring
          to your attention, and you just stated it on
          the record. I am satisfied.

               THE COURT: Well, I have stated it in the
          opinion.

               ATTORNEY CUMMINGS: Your Honor, as my
          client and I went over, she said, “he don’t
          understand.” I said, “I think he does.” But . .
          . “

               THE COURT: Oh, I clearly do.

               ATTORNEY Cummings:  And when you stated
          it, your Honor, there goes my argument. I am
          going to sit down.

(Transcript of Motions Hearing at 9-10, Lee v. Zom Clarendon,
L.P., No.1:09cv402 (E.D. Va. Nov. 20, 2009). Even at a hearing
on her motion to alter the judgment, Lee did not press the
argument she has crafted here.



                               15
of an express easement.                    She has not presented any exceptional

circumstance necessitating appellate review of this issue and we

find       that    no     miscarriage        of    justice       would    result.      Moreover,

after       having        the    benefit          of    oral     argument       and    carefully

reviewing the briefs, record, and controlling legal authorities,

we   conclude           that    the    district         court    properly    considered          and

rejected          Lee’s    contention         that       either     the    trustee         or   note

holder,       independently           or     collectively,         had    any    authority        to

create       an    express       easement         in    the    Woodward    Deed       of   Partial

Release. 7

                                                   B.

                  Lee    argues       next    that       the    district    court      erred      by

excluding her “three expert witnesses and nine expert reports”

from       its      consideration            of        her     summary     judgment         motion.


       7
       Even if we were to accept Lee’s invitation for this Court
to view B.M. Hedrick as the grantee or beneficiary of the deed
of partial release because he received the benefit of the
transaction (or the re-granting of the property), this view
would necessarily mean that the Trustees or the note holder
would serve in the role as the grantor in the deed of partial
release.    Lee has conceded that the trustees lacked the
authority to create an easement and the district court found,
without specific challenge from Lee here, that the note holder
did not have that authority either. Therefore, we submit that it
would be inappropriate to consider the fee simple owner as a
grantee or beneficiary in this instance. Moreover, upon these
facts, and the lack of ambiguity in the language of the deed of
partial release, there is no need to look outside of the deed of
partial release, the document in which Lee asserts the
reservation was made, for any intent of the parties.



                                                   16
(Appellant’s Reply at 8). Lee contends that the reports included

expert      testimony       that    “analyze         complicated      instruments,             many

using    obscure       language     and       the    effect    of    whether       in    ancient

practice         the   parties      did    not       always     execute       the       deed     in

question.”         (Appellant’s Brief at 39).                   She asserts that this

information and the “effect of subsequent deeds in recordation

practices        during     the    depression         and     standards      in       the   title

industry” would have been helpful to the court in determining

the effectiveness of the partial release. (Id.) Specifically,

she argues that one of her experts, Kirk Foster, could have

provided         the   court      with    a    “modern        example       of    a     recorded

easement” (id. at 40), which was “created in the same manner as

the     1932      partial      release        transaction”          which     she       contends

established the reserved easement. (Id. at 39; Appellant’s Reply

at    8.)    While     Attorney     Douglas         Mackall’s       report       “reli[ed]       on

subsequent        deeds   in      the    record      that     show    that       B.M.    Hedrick

ratified the reserved Right of Way” (Id.), Lee contends that

this information is relevant to the issue of the creation of a

valid easement.           Zom contends that Lee has not presented any

claim       to    this    Court     that       the     district       court       abused        its

discretion. Zom argues that the reports were properly excluded

in that it is immaterial that the deed of partial release was in

Zom’s chain of title if the easement was not validly created.



                                               17
           District courts have “broad latitude in ruling on the

admissibility of evidence, including expert opinion,” and such

rulings will not be overturned “absent an abuse of discretion.”

Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 475

(4th Cir. 2005). “A district court abuses its discretion when it

acts arbitrarily or irrationally, fails to consider judicially

recognized      factors    constraining          its   exercise         of    discretion,

relies on erroneous factual or legal premises, or commits an

error of law.”       United States v. Delfino, 510 F.3d 468, 470 (4th

Cir.   2007).     However,      even   if    a    district    court’s         evidentiary

ruling constitutes an abuse of discretion, such a ruling “is

reversible only if it affects a party’s substantial rights.”

Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 310 (4th Cir.

2006); accord Fed. R. Evid. 103(a). In making its evidentiary

determinations,      the     trial      court      “exercises       a    gate     keeping

function     to     assess       whether         the   proffered             evidence    is

sufficiently reliable and relevant.” Westberry v. Gislaved Gummi

AB, 178 F.3d 257, 261 (4th Cir. 1999).

           Federal Rule of Evidence 702 provides the focal point

for    determining        the     admissibility         of        expert       testimony.

Generally, expert testimony of “scientific, technical, or other

specialized     knowledge”       is    admissible      if    it    “will       assist   the

trier of fact to understand the evidence or to determine a fact

in issue.”        Fed. R. Evid. 702.             Conversely, such testimony is

                                            18
inadmissible if it does not aid the trier of fact. United States

v. Barile, 286 F.3d 749, 760 (4th Cir. 2002). Whether an expert

will assist the factfinder is a question the trial court has

“wide discretion” to decide.               Mercado v. Austin Police Dep’t,

754 F.2d 1266, 1269 (5th Cir. 1985). This is true “particularly

when the court sits as the trier of fact, for [it] is then in

the best position to know whether expert testimony would help

[it] understand the case.” (Id.)

            We   conclude      on    the    record      in   this     case    that   the

district court was well within its discretion to exclude Lee’s

expert reports.        A review of the Foster and Douglas reports

indicates that they opine on the very nature of the dispute in

this matter, whether an easement can validly be created in a

deed of partial release, who has the authority to create the

easement in such an instrument (i.e., trustee or note holder)

and whether the fee simple owner’s signature is required. All of

these issues involve pure questions of law which are well within

the parameters reserved for the district court on a motion for

summary    judgment    and     are    inappropriate          subjects    for    expert

testimony.       The   court    simply      had    to    look    to     the    document

purporting to create the conveyance and determine the authority

of   the   parties     to    make     its       determination.        “While    expert

witnesses may testify as to the ultimate matter at issue, Fed.

R. Evid. 704(a), this refers to testimony on ultimate facts;

                                           19
testimony on ultimate questions of law, i.e., legal opinions or

conclusions,      is     not    favored.”      Anderson      v.    Suiters,      499     F.3d

1228, 1237 (10th Cir. 2007) (citation omitted). Notably, there

were    no   factual         questions    at      issue.     Indeed,       Lee     has   not

identified any before this Court. The expert reports did not

opine on any archaic language that would have provided the court

with    pertinent       information.      The     district        court     resolved     the

issue of whether the easement was validly created as a matter of

law and on the basis of facts which were not in dispute by the

parties. Upon a determination that the easement was not validly

created, expert testimony on the proper boundaries of a search

of Zom’s chain of title became immaterial. Moreover, although

the    reports    may    have     included       information       regarding       property

conveyances during the 1930’s, the time during which the deed of

partial release was made and while this information may have

been   helpful,       the    district     court,     as     the   arbiter     on    summary

judgment     motions,        apparently     found    the     testimony       unnecessary.

This   Court     is    not     positioned    to     alter    such      a   determination.

Further, Lee has failed to demonstrate an abuse of discretion or

that a substantial right was affected by the court's evidentiary

ruling. For these reasons, the exclusion of the expert reports

supporting       Lee’s      summary   judgment       motion       is   affirmed.         See

Adelman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir. 1986)

(affirming the exclusion of testimony by expert witness which

                                            20
included        legal       conclusions),             disapproved           on   other          grounds    in

Pinter v. Dahl, 486 U.S. 622 (1988).



                                                      C.

                Finally, we turn to Lee’s assertion that the district

court erred in finding that she failed to establish that an

easement exists by prescription for the benefit of the Reamy

Property.

                In    Virginia,         to      establish          a    claim         of    easement       by

prescription,           a    claimant           must       prove        that      her      use     of     the

purported servient estate was (1) adverse, (2) under a claim of

right, (3) exclusive, (4) continuous and uninterrupted and (5)

with      the    knowledge          and      acquiescence              of     the      owners      of     the

servient estate. Hafner v. Hansen, 279 Va. 558, 563 (Va. 2010)

(citations           omitted).          Additionally,                  there        is      a     temporal

requirement in that the claimant has to prove that this use

occurred for a period of twenty years. (Id.)                                      “A party claiming

a    prescriptive           easement         bears         the     burden         of       proving      that

easement by clear and convincing evidence.” (Id.) “The essence

of   an    adverse          use    is     the    intentional             assertion          of    a     claim

hostile to the ownership right of another.”                                      Chaney v. Haynes,

250 Va. 155, 159, 458 S.E.2d 451, 453 (Va. 1995).

                Further,          “[w]here       there      has        been      an    open,      visible,

continuous       and        unmolested          use    of    a    road        across       the     land    of

                                                      21
another for at least twenty years, the use will be presumed to

be   under      claim    of    right,     and      places   upon   the       owner    of    the

servient     estate      the     burden      of    rebutting     this    presumption         by

showing that the use was permissive, and not under claim of

right.” Johnson v. DeBusk Farm, Inc., 272 Va. 726, 730, 636

S.E.2d 388, 391 (Va. 2006) (quoting Rives v. Gooch, 157 Va. 661,

663, 162 S.E. 184, 184 (1932)); see also Pettus v. Keeling, 232

Va. 483, 485, 352 S.E.2d 321, 323-24 (1987).

             As the Supreme Court of Virginia has oft said, where

the use of a roadway, or in this case, driveway “ha[s] been in

common    with    such     use    by    the       general   public,     the     element      of

exclusiveness,          requisite      for    a     prescriptive      right,        would    be

negated.        In such a case, the right of each user of the way is

dependent upon the enjoyment of similar rights by others, and no

private      prescriptive        rights       will     arise.”          Burks       Bros.    of

Virginia, Inc. v. Jones, 232 Va. 238, 246, 349 S.E.2d 134, 139

(Va.    1986).    (citation       omitted).         However,    “prescriptive          rights

will arise where each user independently asserts his right to

enjoy     the     right-of-way         for      himself,      because        such    use     is

exclusive        even     though       others        assert    similar        rights        for

themselves,       but     rights        asserted       by     users     in     common       are

dependent, not exclusive.”                (Id.) (citing Totten v. Stuart,143

Va. 201, 203-04, 129 S.E. 217, 218 (1925).                       The term “exclusive”

was expounded upon by the Virginia Supreme Court in Totten.

                                              22
      The use [is] ‘exclusive’ when it is proprietary, not a
      use by the public generally, and is exercised under
      some claim which is independent of and does not depend
      for enjoyment upon similar rights by others. It is not
      necessary, however, that the claimant be the only one
      to enjoy the right of way, as other persons may
      acquire a prescriptive right to use it. When a way has
      been so used for a period of more than twenty years,
      the origin of the way not being shown, the bona fides
      of the claim of right is established and a presumption
      of a right to the use arises from the long
      acquiescence of the owner of the servient estate, and
      the burden is on him to rebut that presumption by
      showing permission or license from him or those under
      whom he claims.

Totten, 143 Va. at 203-204, 129 S.E. at 218 (citations omitted).

             The district court found that the evidentiary record

at the bench trial supported a finding that Lee’s use of the

driveway was continuous and uninterrupted and with the knowledge

and acquiescence of the driveway’s owners, but that she failed

to   show   by   clear    and   convincing   evidence   that    her   use   was

adverse, exclusive or under a claim of right. Additionally, the

district court found that Lee could not satisfy the temporal

requirement, contrary to Lee’s assertion here on appeal.

            In reaching this conclusion, the district court made

fifteen (15) enumerated findings of fact. 8 The                United States

Supreme     Court   has   instructed    that   “findings   of    fact   of   a

      8
        During the bench trial, the district court received
testimony from Lee, her daughter and son-in-law, Jeannie and
Donald Williams, as to the driveway’s use.     Zom proffered the
testimony of John Strother, the previous owner of the purported
servient estate, from whom it acquired its property.



                                       23
district      court,       especially       when      the     judge       has    heard       the

witnesses ore tenus in open court, shall not be set aside unless

clearly      erroneous,           with   due        regard    being       given       to     the

opportunity of the trial court to judge the credibility of the

witnesses.” Anderson v. City of Bessemer City, N.C., 470 U.S.

564    (1985).        In     Anderson,      the       Court       reminded      us    that    “a

reviewing court [must not] reverse the finding of the trier of

fact simply because it is convinced that it would have decided

the case differently,” 470 U.S. at 573; “appellate courts must

constantly have in mind that their function is not to decide

factual      issues    de    novo,”      (id.);      and     “[w]here     there       are    two

permissible views of evidence, the factfinder’s choice between

them cannot be clearly erroneous[.]” (Id. at 574.)

              Here, we must harmonize this deferential standard of

review of factual findings, as set forth in Anderson, with the

law. Our task is simplified by the parties. Before this Court,

neither party has assigned any error to the district court’s

findings of fact with respect to Lee’s prescriptive easement

claim. (Appellant’s Reply at 10; Appellee’s Brief at 26, 31).

Instead, they have each relied upon them in their dispute of the

district court’s conclusion of law. We have reviewed the record

in    this    matter,       and    we    adopt      the    factual     findings        of    the

district      court     as    reflected        herein        as    they    are       based    on

substantial evidence, are not clearly erroneous and are without

                                               24
objection by the parties. Anderson, 470 U.S. 564 (1985); see

also Mom n Pops, Inc. v. City of Charlotte, N.C., 162 F.3d 1155

(4th   Cir.   1998)    (unpublished    table    decision);   Abex   Corp.   /

Jetway   Div.     v.   Controlled     Sys.,    Inc.,   983   F.2d   1055(4th

Cir.1993)(unpublished table decision)(citing); Fed. R. Civ. P.

52(a)(6).     For context of the discussion that follows, here are

the enumerated district court findings:

         1.     Plaintiff is the owner of two adjoining parcels
                of real property in Arlington, Virginia. The
                first parcel consists of Clarendon Subdivision
                lots 238-240 and portions of lots 217 and 241.
                More familiarly, this property is located at
                the intersection of N. Irving Street and
                Washington    Boulevard.  The    second    parcel
                consists of portions of lots 217 and 241 of the
                Clarendon Subdivision, and bears the address
                1122 N. Irving Street. This second parcel is
                described by the parties as the Reamy house.
                The   putative   easement  runs   alongside   the
                northwest and southwest sides of the Reamy
                house, thus providing access to the rear of the
                Reamy house. Notably, the rear of the Reamy
                house is also accessible by passing through the
                structure or via a parking lot bordering the
                southeast side of the Reamy house. Plaintiff
                purchased these parcels in 1963.

         2.     The sole defendant is Zom Clarendon, L.P., a
                limited Delaware partnership authorized to do
                business  in   Virginia.  Defendant   owns  the
                putative servient estate, which consists of
                Clarendon Subdivision lots 206-216, 242-247,
                and those portions of lots 217 and 241 that do
                not include the Reamy house. In 2006, defendant
                purchased this property, which is immediately
                adjacent to plaintiff’s property, from the

                                      25
     family of Channing Strother. Defendant intends
     to build a mixed-use high rise with both
     residential units and retail space on these
     lots.

3.   In 1956, plaintiff’s husband and father-in-law,
     as lessors, opened a Chinese restaurant located
     at 3211 Washington Boulevard. The restaurant
     and the Reamy house are located on adjoining
     parcels of land. The restaurant, which faces
     Washington Boulevard, is also accessible from
     the rear through the driveway at issue on N.
     Irving Street. In 1956, plaintiff owned none of
     these properties.

4.   Plaintiff   began    regularly    visiting the
     restaurant in 1956 to eat dinner. Between 1956
     and 1959, plaintiff did not observe any cars
     parked on the purported easement.

5.   In 1959, plaintiff began working at the
     restaurant four to five days a week. Although
     the   restaurant   was   located   on Washington
     Boulevard, plaintiff entered the restaurant
     using a rear entrance. On occasion, plaintiff’s
     husband, with plaintiff as a passenger in the
     car, was unable to reach the rear entrance
     because cars were parked on the driveway.
     Plaintiff’s father-in-law would then ask the
     Reamy house's tenants to move their cars, which
     they did, allowing plaintiff and her husband to
     access    the    restaurant’s    rear  entrance.
     Plaintiff worked at the restaurant until 1996.

6.   On   November 15,   1963,   plaintiff’s  family
     purchased the Reamy house. Plaintiff’s family
     believed that a survey given to them at the
     closing conveyed the right to use the driveway
     and that they nonetheless had an inherent right
     to use the driveway in light of the property's
     physical layout.


                        26
7.   In 1965, plaintiff’s parents-in-law moved into
     the Reamy house’s second story and resided
     there   until   1979.   During   this   period,
     plaintiff’s parents-in-law would clear garbage,
     trash, leaves, and sometimes snow from the
     driveway. In addition, plaintiff’s mother-in-
     law planted a garden on the driveway containing
     beans, mint, and leeks.

8.   Also in 1965, other tenants began to occupy the
     ground floor of the Reamy house. Specifically,
     the ground floor housed an antique store from
     1965-1980, housed a bed frame store from 1980-
     1990, and was used by two carpenters around
     1998 to store materials and tools. The antique
     store tenants parked on the purported easement
     from 1965-1980, and the bed frame store and
     carpenter tenants used the driveway to access
     the rear of the Reamy house from 1980-1990. In
     addition, visitors to the Reamy house—such as
     plaintiffs daughter, Jeannie Williams, and
     plaintiff’s    son-in-law,    Donald     Williams—
     sometimes    parked   on    the    driveway.    In
     particular, Donald Williams used the driveway
     when   he   assisted   plaintiff’s    husband   in
     periodically repairing or repainting the Reamy
     house beginning in the late 1970s. Plaintiff
     did not receive any complaints or objections
     with respect to the use of the driveway in this
     manner.

9.   In 1979, plaintiff and her husband began
     maintaining the driveway and grew vegetables
     there. Furthermore, plaintiff and her husband
     would also park on the driveway. Twice a year,
     beginning at an unspecified time, plaintiff
     used the driveway for a Chinese ceremony in
     which she would spread rice and coins on the
     ground.




                        27
10.   Also in 1979, the family of Channing Strother
      purchased the property currently owned by
      defendant and thus became the owners of record
      of the driveway-easement at issue. Channing
      Strother and his son, John Strother, opened a
      printing store on their property in 1979.
      Notably, the shop could only be reached via the
      driveway off N. Irving Street because the store
      did not front Washington Boulevard, and as such
      the Strothers and their customers regularly
      used the driveway to reach the printing store.
      In an effort to ensure that customers could
      find and access the printing store, which was
      set back from N. Irving Street, the Strothers
      maintained the driveway, including having it
      repaved at one point.

11.   In 1990, Donald and Jeannie Williams opened a
      delicatessen   named  “Sam’s   Corner”  on   an
      adjoining parcel of land east of the Reamy
      house and restaurant. Since 1990, the ground
      floor of the Reamy house has been used to store
      materials related to the operation of Sam's
      Corner, and plaintiff and her family have used
      the driveway to access these materials.

12.   The members of plaintiff’s family were not the
      only people to use the driveway; rather, the
      driveway was regularly used by others to access
      buildings on both plaintiff’s and defendant's
      lots.

13.   Plaintiff’s family and the Strothers had a
      neighborly, friendly relationship. At no time
      did they become entangled in a dispute or
      disagreement relating to the driveway's use.
      Plaintiff’s    family,     particularly   Donald
      Williams, saw and conversed with the Strothers
      on the driveway in a cordial manner. At no time
      did   plaintiff’s   family   represent  to   the



                         28
              Strothers that they, plaintiff’s family, had a
              right to use the driveway.

        14.   On at least one occasion, Donald Williams and
              John Strother discussed Williams’s intention to
              use the driveway to facilitate repair of the
              Reamy house. Although Williams claims that he
              never asked the Strothers for permission to use
              the driveway, Strother testified more credibly
              that permission was sought and granted on this
              occasion. Whether Williams actually sought
              permission from Strother, or simply advised
              Strother of the driveway's use consistent with
              their neighborly relationship, is not a factual
              dispute that requires resolution here, as this
              fact is not dispositive of plaintiff’s claim.

        15.   No witness testimony supports a factual finding
              that plaintiff’s family used the driveway in a
              manner that interfered with the Strothers’ use
              of the driveway. At most, Donald Williams asked
              Charming Strother at one point to move his car
              along the driveway so that maintenance could be
              performed on the Reamy house, and Strother
              obliged without incident. Williams’s use of the
              driveway in this regard is consistent with the
              neighborly   relationship  between  plaintiff’s
              family and the Strothers.

Lee v. Zom Clarendon, L.P., 689 F. Supp. 2d 814 (E.D. Va. 2010).

           With our canvas properly framed, we now consider Lee’s

argument   for    a    prescriptive   easement.       The   parties   do   not

challenge the district court’s determination that Lee’s use of

the purported easement was continuous and uninterrupted and with

the   knowledge       and   acquiescence   of   the     driveway’s    owners.

However, Lee asserts that she adequately demonstrated that her


                                      29
use   was    (1)    adverse,          (2)    under    a    claim    of    right,         and   (3)

exclusive for the duration of the prescriptive period from 1963

to 1983 by clear and convincing evidence. Lee argues that the

district court used the wrong legal definitions to determine

that her use of the driveway was not “exclusive” and “adverse.”

She   also    argues           that    she     was    deserving          of    a     rebuttable

presumption of having a claim of right to the driveway and that

the   district      court’s         findings     support      that       her    use      was   not

permissive.

             We disagree. Lee fails to show an exclusive use of the

driveway     necessary         to     establish      an    easement      over       Zom’s      land

because the right of Lee and her family to use the driveway was

dependent     upon       the    similar       use    of    Strother      and       the   general

public, his customers.                  The evidentiary record provides that

Lee, her daughter and son-in-law used the driveway for parking.

Additionally,        from      1965-1990,       commercial         tenants         leasing      the

ground floor of the Reamy House used the driveway to access the

rear of the Reamy House.                This use, of parking or driving across

the easement, is consistent with the use of the general public

who   visited      the    businesses         owned    by     the   servient         owner,     the

Strothers.      There     is     no    dispute       that,    in   1979,       the    Strothers

operated a print shop business on their property which could

only be accessed by their customers via the driveway because the

store did not front Washington Boulevard. On these facts, Lee

                                               30
cannot show a right to use the driveway independent of that use

by Strother. Indeed, her use of the driveway is dependent upon

the use of Strother and his customers. Lee also argues that her

father-in-law maintained the cleanliness of the driveway during

the fourteen year period of 1965-1979. Again, maintenance of the

driveway is not inconsistent with the Strothers’ actions.              John

Strother testified, and Donald Williams agreed, that Strother

maintained   the   driveway,   as   well.   Indeed,   Strother   and    his

father had the driveway repaved. Lee’s assertions of use are

common to that of Strother and are not readily distinguishable.

Finally, Lee asserts that she used the driveway for a garden

and, twice a year, for a Chinese ceremony in which she would

spread rice and coins on the ground. While this use may have

been unique to Lee, it is obvious that both neighbors used the

driveway in common and this use does not rise to an independent

assertion of a right to use the driveway.

          Therefore, we agree with the well-reasoned opinion of

the district court, Lee’s claim of a prescriptive easement is

fatally flawed in that she has not shown by clear and convincing

evidence that her use of the driveway was exclusive. 9



     9
        Lee’s contention that the district court used a
colloquial, rather than legal definition of “exclusive,” is
wholly without merit.   The district court applied Nelson v.
Davis, 262 Va. 230, 546 S.E.2d 712 (Va. 2001), which is wholly
(Continued)
                                    31
           Finally, Lee argues that she should have been given

the   benefit    of    the    shifting      presumption            that    she   used    the

driveway   adversely        and    under    a    claim   of    right.       We   disagree.

Based on the foregoing, Lee has failed to show that her use of

the   driveway    was       unmolested      or     exclusive.         Lacking     such    a

demonstration,        she     is    not     entitled          to     any    presumption,

rebuttable or otherwise. This finding is consistent with the

reasoned analysis of the district court.                       Given the failure of

evidence with respect to exclusivity, a finding on the remainder

of the factors required to establish a prescriptive easement is

not necessary.



                                           IV.

           For    the       foregoing      reasons,      we    affirm      the   district

court’s judgment on Lee’s claims for an express or prescriptive

easement. Additionally, we find that the district court did not

abuse its discretion in its decision to exclude Lee’s expert

reports.

                                                                                 AFFIRMED




consistent with the instruction the Supreme Court of Virginia
provided in Totten.



                                           32
