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CityPlace Retail, LLC. v. Wells Fargo Bank, N.A.

United States District Court, S.D. Florida

October 31, 2019




         This matter is before the Court on Defendant's ore tenus motion in limine made at trial on October 30, 2019. Defendant's ore tenus motion essentially renews a prior motion in limine that was denied by the Court at docket entry 140. The Court previously denied the parties' respective motions in limine so that the Court could evaluate the arguments therein in the context of the evidence at trial. After having the opportunity to consider several days' worth of testimony at trial, after consideration of the arguments of the parties on October 30, 2019, and after review of the Court's prior order and the parties' written motions in limine, the Court VACATES its prior order denying the parties' motions in limine without prejudice and substitutes this Order in its place.[1]

         Defendant's Motion in Limine

         Defendant moves to exclude certain historical appraisals prepared by Plaintiff's expert, Mr. Val Chiasson. At trial, Defendant represented to the Court that it was not moving to exclude background testimony from Mr. Chiasson about those appraisals, but Defendant did seek to exclude testimony from Mr. Chiasson that attributed the conclusions or analysis in those appraisals to Defendant.[2] Defendant also renewed its position (from its filed motion in limine) that the appraisals should not be admitted as substantive evidence in this case.

         Defendant argues the evidence should be excluded on multiple grounds, including Rule 37 of the Federal Rules of Civil Procedure. Under Rule 37, Defendant contends that the appraisals cannot be used as evidence because the appraisals did not further Mr. Chiasson's expert opinion and because those appraisals were not disclosed as grounds supporting Mr. Chiasson's report. An expert witness must produce a report that contains, among other things, “a complete statement of all opinions the witness will express and the basis and reasons for them, ” and “the facts or data considered by the witness in forming them.” Fed.R.Civ.P. 26(a)(2)(B). Such disclosures are mandatory as Rule 37(c)(1) states: “If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” E.g., United States ex rel. TVA v. Scott, 324 F.R.D. 267, 273-74 (N.D.Ga. 2017).

         Plaintiff produced the Chiasson expert report on April 8, 2019. The scope of Mr. Chiasson's retention as an expert was “to opine on the appraisal procedures and standards that apply to the appraisal of CityPlace located in West Palm Beach, and which is referenced as the ‘subject property' in this report.” DE 118-4. Mr. Chiasson offered expert opinion regarding “whether an appraisal of ‘fair market value' of a property as of a specific date, to be performed in compliance with FIRREA, can consider the contributory value of a potential future zoning change.” Id. Among the materials that Mr. Chiasson disclosed that he reviewed in preparing his report were the Loan Modification Agreement, Title XI of FIRREA, the Interagency Appraisal and Evaluation Guidelines, the Uniform Standards of Professional Appraisal Practice, and the Dictionary of Real Estate Appraisal. Id. at 5. He also read Cushman & Wakefield's appraisal report, CBRE's September 2018 and November 2018 appraisal reports, and Stuart Lieberman's deposition and the accompanying exhibits. DE 118-5 at 8-9. Mr. Chiasson did not consider or rely on any other materials. Thus, the Court can see no basis for Mr. Chiasson's historical appraisals to be admitted as evidence under Rule 37.

         In response, Plaintiff takes the position that, even though the appraisals were not disclosed in Mr. Chiasson's report, [3] Plaintiff should be able to admit the appraisals as evidence because of Defendant's litigation strategy:

THE COURT: What about 703 and 26 and 37 whereby, in essence, I understand the argument to be he was deposed, he didn't disclose that he relied upon them, they are not the basis of his opinion, and it would, you know, the notion is that it is unfair to either party if after you have expert reports and depositions new opinions, new materials that you relied upon, come out.
MR. HARRISON: I will note for the record that at least in this case CityPlace and our expert was deprived of the opportunity to submit a rebuttal report based on the way Wells Fargo decided to handle the provision of their expert report. We were supposed to exchange simultaneous expert reports and each side would have an opportunity to file a rebuttal report to each others expert report. Wells Fargo didn't file an expert report and all they filed was a rebuttal report, which we never had an opportunity to file a rebuttal report.
But taking that aside, these documents have been involved in the case since at least April 30th. At no time has Wells Fargo either tried to depose Mr. Chiasson.
THE COURT: He had been deposed.

         (Internal Transcript). The potential prejudice to Defendant is exemplified by the following e-mail sent from counsel for the Defendant to counsel for the Plaintiff. After Mr. Chiasson's deposition, Plaintiff took the position that Mr. Chiasson was both an expert witness and a fact witness and, because he was also a fact witness, Mr. Chiasson's old, prior appraisals could be used as substantive evidence in support of Plaintiff's case. In response to that position, Defendant's counsel sent the following:

I am puzzled as to how Mr. Chiasson can be a “fact” witness given the statements in both his report and at his deposition. He has not been involved in any of the transactions, and lacks personal knowledge of any events. He can be testifying only in a capacity as an expert witness. Since that limited role i[n] the case, if you want to call him for further testimony, under Rule 26, we are first entitled to a supplemental report before any testimony. We will consent to such a report, provided that we receive it in at least three business days in advance of Mr. Chiasson's deposition. If you do not proceed in accordance with Rule 26, we reserve our rights to move to preclude any purported ‘fact' testimony by Mr. Chiasson in the motions in limine to be filed with the Court.

DE 118-1 at 2. Despite having the opportunity to amend the expert report, Plaintiff never accepted Defendant's offer. Upon review of Mr. Chiasson's report and the evidence in this case, the Court is persuaded that, pursuant to Rule 37, Plaintiff is precluded from offering Mr. Chiasson's historical, prior appraisals as substantive evidence in this case. Plaintiff could have amended Mr. Chiasson's expert report to make the appraisals part of Mr. ...

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