Expert Witness Profiler

Tag: nuisance

  • Real Estate Expert’s Use of the Sales Comparison Approach is Permissible

    Real Estate Expert’s Use of the Sales Comparison Approach is Permissible

    Residents near a biomass power plant in Madison County, Georgia, owned and operated by the defendants, allege that the plant’s noise, vibrations, light, smoke, and soot are negatively impacting their property values. They have filed nuisance and negligence claims. The Defendants are challenging the admissibility of the Plaintiffs’ expert witness, real estate appraiser Kenneth Cantrell, under Federal Rule of Civil Procedure 702. While not disputing Cantrell’s qualifications, the Defendants argued that his appraisal, which assesses the decrease in property values due to plant noise, lacks sufficient factual basis and employs an unreliable methodology.

    Real Estate Expert Witness

    Kenneth Cantrell, a Georgia-based certified real estate appraiser, boasts a career spanning more than thirty years.

    Cantrell possesses a robust educational background in real estate and finance, demonstrated by his successful completion of coursework covering essential areas such as real estate valuation, finance, law, brokerage, and investment analysis. Furthermore, he has consistently pursued advanced professional development, either completing or successfully challenging numerous courses offered by esteemed organizations like the Appraisal Institute (AI) and the Commercial Investment Real Estate Council (CI), underscoring his commitment to maintaining a high level of expertise.

    Want to know more about the challenges Kenneth Cantrell has faced? Get the full details with our Challenge Study report. 

    Discussion by the Court

    Real estate appraiser Kenneth Cantrell used the sales comparison approach to assess the impact of the biomass plant on the Plaintiffs’ property values, claiming his work adheres to the Appraisal Institute’s Uniform Standards of Professional Appraisal Practice and the Appraisal Institute’s Code of Professional Ethics and Standards of Professional Appraisal Practice. 

    The Defendants challenged his methodology on three main points:

    1) They argued he failed to properly verify sales data for comparable properties. The Plaintiffs countered that Cantrell’s associate verified the data, which is permissible.

    2) The Defendants criticized the distance between comparable and appraised properties. The Plaintiffs responded that the rural setting justified the use of such comparables, under applicable appraisal standards.

    3) The Defendants claimed Cantrell relied on a biased report about the Madison plant’s impact. However, the Court found Cantrell’s use of that study as a factor, to determine the size of the impacted area, was permissible.

    The Court concluded that the Defendants’ criticisms pertain to the weight of Cantrell’s testimony, not its admissibility. Finding that Cantrell’s testimony is based on sufficient facts and reliable methodology, and would assist the jury, the Court denied the Defendants’ motion to exclude his testimony.

    Held

    The Court denied the Defendants’ motion to exclude Kenneth Cantrell’s testimony.

    Key Takeaways:

    • The Court recognized that in rural settings, broader geographic comparisons for real estate appraisals may be necessary and permissible, according to professional appraisal standards.
    • Criticisms regarding the methodology, data verification, and comparable properties were deemed to affect the weight of the appraisal evidence, not its admissibility.

    Case Details:

    Case Caption: Fowler Et Al V. Georgia Renewable Power LLC Et Al
    Docket Number: 3:23cv62
    Court: United States District Court for the Middle District of Georgia, Athens Division
    Order Date: March 15, 2025
  • Real Estate Valuation Expert Witness’ Testimony on Appreciation Impairment Damages Admitted

    Real Estate Valuation Expert Witness’ Testimony on Appreciation Impairment Damages Admitted

    108 named Plaintiffs admitted that they purchased their Shipyard properties for residential purposes.

    Plaintiffs each bought units on Parcel A of the former Hunters Point Naval Shipyard (“HPNS”). HPNS is a Superfund site where Tetra Tech EC, Inc. (“TtEC”) conducted environmental remediation work in certain areas years before the Plaintiffs bought their units. Plaintiffs now bring claims against the Tetra Tech Defendants for purported lost profits, in addition to other damages, under theories of fraud and misrepresentation (among other claims not addressed in this motion).

    Plaintiffs sought class certification, citing their claims for negligence, nuisance, common law fraud, and California statutory fraud.

    In support of their motion for class certification, the Plaintiffs submitted a nine-page declaration from their expert, Brett Reynolds. He investigated multiple areas of potential damages including appreciation impairment, and excess charges incurred by impacted Shipyards homeowners.

    The Defendants moved to exclude Reynolds’ opinions under Federal Rule of Evidence 702. They argued that Reynolds lacked the necessary expertise to offer the opinions in his declaration and that the methodology underlying his conclusions was fundamentally flawed, rendering his testimony unreliable.

    Real Estate Valuation Expert Witness

    Brett Reynolds is a licensed appraiser with almost 18 years of experience in the real estate industry, with an emphasis on valuation, acquisition, and asset management.

    He has a degree in economics from the University of Southern California and holds the top designations in the appraisal profession. Reynolds has been a Designated Member of the Appraisal Institute (MAI) since 2008 and a Certified Commercial Investment Manager (CCIM) since 2009. He has been a licensed appraiser in the State of California (Certified General License 042466) since 2007. He has testified as an expert witness in both Federal Tax Court and California State Court.

    Want to know more about the challenges Brett Reynolds has faced? Get the full details with our Challenge Study report.

    Discussion by the Court

    Reynolds opined on the two primary sources of economic damages incurred by the class members: (1) appreciation impairment/ diminution in value of the Parcel A homes owned by the putative class members, and (2) excess tax charges/ Mello-Roos damages.

    For the appreciation impairment damages, Reynolds stated that he was provided with a list of 241 market-rate homes that had been sold on Parcel A as of August 2, 2018. Assuming an average appreciation impairment of 20.4%, he concluded that these units have suffered a total appreciation impairment of $55,523,536. Additionally, Reynolds calculated the amount of past Mello-Roos liabilities incurred by each of the 241 market-rate homes sold on Parcel A on the same date. Assuming certain Communities Facilities District (CFD) rates as specified in his declaration, Reynolds opined that the Parcel A homeowners have incurred $8,393,735.00 in Mello-Roos liabilities.

    Defendants said that Reynolds “has no relevant expertise on which to base his opinion on the cutoff date Plaintiffs use for the class definition.”

    However, Reynolds did not express a substantive opinion about the cutoff date for Plaintiffs’ class definition. Reynolds mentioned events that took place in 2018, but that is not in the context of giving an opinion as to why August 2, 2018, and not, say, another date in 2018, might be the proper cut-off date. Consequently, the Court overruled this objection.

    For Reynolds’ methodology, Defendants’ main contention is that Reynolds’ choice of index was wrong because it “measures different types of homes than those present at the shipyard” and also “measures non-representative neighborhoods.” The Court decided that the details of what Reynolds “did or didn’t take into account in running his analysis . . . may be grist for a good cross-examination at trial, but they do not play a material role in deciding whether [Reynolds’] work should be admitted under Rule 702.”

    According to the Court, Plaintiffs have not identified any common evidence that might warrant class certification. This shortfall is particularly problematic for causation, which is a necessary element of each of the claims for which they are seeking certification. Plaintiffs relied solely on the Reynolds declaration as the ostensible common proof of causation. The Reynolds declaration is also identified as the only common evidence of the damages the class suffered because of Defendants’ alleged fraud and negligent misrepresentation. But the Reynolds’ declaration did not even try to supply class-wide proof on these issues. Also, Reynolds did not offer any opinions whatsoever about causation. 

    Held

    The Court denied Defendants’ motion to exclude the testimony of Brett Reynolds.

    Key Takeaway:

    Reynolds investigated multiple areas of potential damages. Exclusion is denied because it was the Court’s opinion that the details of what Reynolds “did or didn’t take into account in running his analysis . . . may be grist for a good cross-examination at trial, but they do not play a material role in deciding whether [Reynolds’] work should be admitted.”

    Case Details:

    Case Caption: Pennington Et Al V. Tetra Tech, Inc. Et Al
    Docket Number: 3:18cv5330
    Court: United States District Court for the Northern District of California
    Order Date: December 23, 2024