                               UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                               No. 07-1443


EAST TENNESSEE NATURAL GAS COMPANY,

                 Plaintiff - Appellee,

           v.

JERRY S. THOMAS,

                 Defendant - Appellant,

           and

3.04 ACRES IN PATRICK COUNTY, VIRGINIA; BETTY B. THOMAS; C.
JERRY LOVE, Commissioner of Revenue; JOHN DOE, et al.;
UNKNOWN OWNERS,

                 Defendants.



Appeal from the United States District Court for the Western
District of Virginia, at Danville.   Jackson L. Kiser, Senior
District Judge. (4:02-cv-00146-jlk)


Argued:   September 23, 2008                 Decided:   October 30, 2008


Before MOTZ and AGEE, Circuit Judges, and James C. CACHERIS,
Senior United States District Judge for the Eastern District of
Virginia, sitting by designation.


Affirmed by unpublished per curiam opinion.


ARGUED: Henry       Evans Howell, III, WALDO & LYLE, Norfolk,
Virginia, for      Appellant.   Lela Merrell Hollabaugh, WALLER,
LANSDEN, DORTCH & DAVIS, Nashville, Tennessee, for Appellee. ON
BRIEF: Joseph T. Waldo, WALDO & LYLE, Norfolk, Virginia, for
Appellant.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

     In   this   condemnation      action,       the   landowner       Jerry   Thomas

appeals from a jury verdict following the district court’s grant

of a new trial.         Thomas alleges that the district court abused

its discretion by granting a new trial.                     Finding no abuse of

discretion, we affirm.



                                         I.

     East    Tennessee     Natural       Gas    Company     (“ETNG”)    filed    this

condemnation action against Betty and Jerry Thomas 1 on December

6,   2002.       ETNG    sought     to     condemn     an     easement     for    the

construction and operation of an underground gas pipeline, part

of which ran through the Thomases’ 400 acres in Patrick County,

Virginia.     On   May    8,    2003,     the    district     court    granted    the

easement pursuant to its equitable authority; we subsequently

affirmed this ruling.          See E. Tenn. Natural Gas Co. v. Sage, 361

F.3d 808 (4th Cir. 2004).          Although Thomas then sold the land to

John Hopkins for $1.25 million, he retained the right to any

compensation for ETNG’s taking.

     The case proceeded to trial on October 10, 2005, with the

amount of just compensation owed as the sole remaining issue.

     1
       Betty Thomas died after the action was filed but before
the first trial. Thus Jerry Thomas is now the sole defendant in
interest.



                                          3
At the first trial, the only direct evidence offered by the

defendants was the testimony of Thomas Childress, a real estate

appraiser.        Childress opined that compensation in excess of one

million dollars was appropriate.                   ETNG responded with several

witnesses        opining    compensation          values     ranging     from     $0     to

$63,000.         The     jury   returned    a     verdict     for     $770,554.         The

district court granted ETNG’s motion for a new trial, finding

that this verdict was against the clear weight of the evidence

and would result in a miscarriage of justice.

      The second trial began on January 16, 2007.                         The parties

presented different evidence to the new jury.                       Childress was not

called; the defendants instead relied on two other appraisers,

who   similarly        opined   values     over    one     million    dollars.         Most

notably, ETNG offered the testimony of purchaser John Hopkins,

who stated that the pipeline did not impact the purchase price

he would have been willing to pay.                    ETNG also offered testimony

from many of the witnesses that it had relied on in the first

trial.      At     the     conclusion    of     the    six-day       trial,   the      jury

returned     a    verdict       for   $118,859.          Thomas      timely     appeals,

alleging error in the district court’s grant of a new trial. 2


      2
       Thomas also alleges error in the district court’s refusal
to revoke its prior grant of a new trial.             Under the
circumstances of this case, this claim is identical to his claim
of error in the grant of a new trial.



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                                          II.

        We review a district court’s grant of a new trial for abuse

of discretion.         See Cline v. Wal-Mart Stores, Inc., 144 F.3d

294, 301 (4th Cir. 1998).               A district court may use its sound

discretion to grant a new trial when (1) the verdict is against

the clear weight of the evidence, (2) the verdict is based on

evidence which is false, or (3) the verdict will result in a

miscarriage      of   justice.          See       Conner     v.    Schrader-Bridgeport

Int’l, Inc., 227 F.3d 179, 200 (4th Cir. 2000); Aetna Cas. &

Sur. Co. v. Yeatts, 122 F.2d 350, 352–53 (4th Cir. 1941).                              The

district court relied on the first and third grounds in its

decision.       In deciding whether or not to grant a new trial, a

court    may    properly   weigh        the       strength    of    the    evidence   and

consider the credibility of witnesses.                  Conner, 227 F.3d at 200.

        The district court described its reasons for granting a new

trial    at    some   length.      In    particular,         the    court    provided   a

number of reasons that led it to doubt that the valuation of the

landowners’ primary witness, Thomas Childress, found support in

reliable       evidence.        For      example,          the     court    noted     that

Childress’s calculations assumed that the land was suitable for

a golf course, even though the defendants had abandoned this

position.        In    addition,        Childress       relied      “largely    on     the

opinions of others,” including the landowners, in determining

the compensation owed.           In contrast, the district court found

                                              5
that the witnesses offered by ETNG were “more substantive” and

based their opinions on “specific data and facts.”                              Given that

these ETNG witnesses opined values much lower than the $770,554

award, the district court was within its discretion to hold that

the verdict was against the clear weight of the evidence.

       Thomas’s       contentions       to     the     contrary         are    unavailing.

Thomas first argues that the district court applied the wrong

test    for     excessiveness          of     the     verdict.           This     argument

misconstrues the district court’s opinion.                         Although the court

noted that the verdict was “excessive,” it did so in the course

of   reaching     its   conclusion          that    the    verdict      was    against    the

clear weight of the evidence.                 The district court did not rest

its decision solely on the excessiveness of the first verdict.

       Thomas’s second contention, that the district judge could

not properly grant a new trial because the judge did not see all

the evidence, is equally meritless.                    Thomas is correct that the

district judge declined to travel with the jury to view the

Thomases’      land     in   person.          But    Thomas       did    not    raise     any

objection to this decision at trial, and so he bears the burden

of   demonstrating       that    this       decision      constituted         plain   error.

See In re Celotex Crop., 124 F.3d 619, 631 (4th Cir. 1997)

(holding      that    correction       of     forfeited         error    in    civil     case

required      showing    that,    at    minimum,          the   error    was    plain    and

affected substantial rights).                  In fact, it is clear from the

                                              6
record that any error by the district court in refusing to visit

the property was harmless.   The condemnation at issue was for an

underground pipe, and Thomas does not explain how a viewing of

the property would have affected the district court’s opinion of

the underground pipe.

     Thomas’s final contention, that sufficient evidence existed

to support the jury’s verdict, might present a close issue were

we reviewing a grant of judgment as a matter of law.        Here,

however, the district court did not direct a verdict for either

party -- it merely granted a new trial.   To do so, the court did

not need to conclude that the evidence insufficiently supported

the verdict, but only that the verdict was against the clear

weight of the evidence.



                               III.

     For the foregoing reasons, the judgment of the district

court is

                                                        AFFIRMED.




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