Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tulsa Zoo Management, Inc. v. Peckham Guyton Albers & Viets, Inc.

United States District Court, N.D. Oklahoma

March 4, 2019




         Before the court is the Substitute Combined Motion for Summary Judgment and Opening Brief in Support [Doc. 53');">53] of defendant Peckham Guyton Albers & Viets, Inc. (PGAV). For the reasons set forth below, the motion is granted in part and denied in part.

         I. Background

         This is a breach of contract and professional negligence case arising from a surveying error that occurred during the planning and construction of the Lost Kingdom project at the Tulsa Zoo. The Zoo is owned by the City of Tulsa and has been managed by plaintiff Tulsa Zoo Management Inc. (TZMI) since late 2010. In March of 2012, TZMI adopted a twenty-year master plan to build new exhibits and infrastructure and to improve guest experiences. In 2011, TZMI hired PGAV— an architectural and planning firm experienced in planning and designing zoo improvements—to perform design services related to the master plan. PGAV prepared the concept for the master plan, including five independent large-scale projects addressing different areas of the Tulsa Zoo.

         The first of the five major projects was an Asian-inspired exhibit complex known as the Lost Kingdom. PGAV9;s design for the Lost Kingdom exhibit imitated an ancient temple structure overrun by nature, with various species of animals commonly found in Asia, including Malayan tigers, snow leopards, Komodo dragons, and various indigenous Asian birds housed in an aviary. Designs for the Lost Kingdom required construction of new animal enclosures and the integration of an existing concession stand, the Trunk Stop. Additionally, the plan included a new structure, the Special Events Pavilion, with a dining area view of an outdoor tiger enclosure.

         TZMI hired White Surveying Co. to perform the survey of the Lost Kingdom site that PGAV used to create design drawings for the project. The White survey contained elevation errors, and, as a result, the foundation for the Special Events Pavilion was poured with finished floor elevations below the required elevation of new construction in a flood plain. Additionally, the finished floor elevation of the Trunk Stop was approximately 2.5 feet lower than the new improvements.

         TZMI settled with White and subsequently filed this case against PGAV for breach of contract and professional negligence. TZMI claims PGAV breached its contract and professional tort duties in three ways: (1) failing to notify TZMI of an inconsistency between the White survey and 2011 elevation certificates obtained by the City of Tulsa and provided to PGAV; (2) failing to exercise due care in advising TZMI of an inconsistency between the White survey and the Trunk Stop9;s original design drawings, prepared by Imel & Graber; and (3) failing to select NAVD 88 reference datum on the survey requirements form PGAV submitted to TZMI.

         PGAV now moves for summary judgment on TZMI9;s claims or, alternatively, for partial summary judgment on three of its affirmative defenses regarding damages.

         II. Evidentiary Issues

         Before considering PGAV9;s motion for summary judgment, the court must address five evidentiary issues associated with TZMI9;s response. PGAV raised the first issue in its reply [Doc. 70');">70');">70');">70], and the remaining four issues in its Objections to Plaintiff9;s Evidence Submitted in Opposition to Summary Judgment [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71].

         A. Compliance with LCvR 56.1(c)

         PGAV argues in its reply that TZMI9;s response does not comply with Local Civil Rule 56.1, the local rule governing summary judgment procedure. [Doc. 70');">70');">70');">70, pp. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1-2]. PGAV9;s motion for summary judgment offers seventy-nine (79) paragraphs of material facts which it asserts are undisputed. [Doc. 53');">53, pp. 8-21]. The factual portion of TZMI9;s response has two parts: an eight-four (84) paragraph “Statement of Facts” section [Doc. 63');">63');">63');">63, pp. 6');">p. 6');">p. 6');">p. 6-26], and an eight (8) paragraph “Disputed Facts” section [Doc. 63');">63');">63');">63, pp. 26-27]. The “Statement of Facts” section does not state which of its paragraphs create a genuine issue of material fact or specify which of PGAV9;s material facts are in dispute. The “Disputed Facts” section identifies seven of PGAV9;s material facts that TZMI asserts are disputed—fact nos. 16 (fourth sentence), 9');">29-30, 41, 69, 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, and 79—and states that TZMI disputes all of PGAV9;s material facts “to the extent they conflict” with TZMI9;s “Statement of Facts.” [Doc. 63');">63');">63');">63, p. 2');">p. 2');">p. 2');">p. 26, ¶¶ 85-92].

         Local Civil Rule 56.1(c) provides that “[a]ll material facts set forth in the statement of the material facts of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of material facts of the opposing party.” LCvR 56.1(c). It is well-established that respondent bears the burden of ensuring that a factual dispute is portrayed with particularity, and the court “is not required to comb through Plaintiff[9;]s[] evidence to determine the bases for a claim that a factual dispute exists.” Bootenhoff v. Hormel Foods Corp., No. CIV-11-1368-D, 2014 WL 381039');">29, at *2 n.3 (W.D. Okla. Aug. 1, 2014) (citing Mitchell v. City of Moore, 90');">218 F.3d 1190, 1199 (10th Cir. 2000)).

         Under this rule, TZMI has “specifically controverted” only the seven facts identified as disputed in its “Disputed Facts” section—fact nos. 16 (fourth sentence), 9');">29-30, 41, 69, 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, and 79. TZMI9;s statement that it disputes PGAV9;s material facts “to the extent they conflict” with its “Statement of Facts” would, as a practical matter, require the court to compare each of the 84 paragraphs in TZMI9;s “Statement of Facts” with each of PGAV9;s 79 material facts to detect potential conflicts. Such a burdensome procedure does not satisfy the particularity requirements of LCvR 56.1(c). See Murphy, 2018 WL 4088071');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, at *3. The court will therefore consider all but the following of PGAV9;s material facts to be undisputed for summary judgment purposes: fact nos. 16 (fourth sentence), 9');">29-30, 41, 69, 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, and 79.[1]

         Turning to the objections, PGAV also argues in several places that evidence presented in TZMI9;s “Statement of Facts” section should be disregarded. PGAV objects to the following evidence cited in TZMI9;s “Statement of Facts”: (1) Scott Shope9;s Declaration [Doc. 63');">63');">63');">63-30]; (2) Scott Shope9;s Deposition Testimony [Doc. 63');">63');">63');">63-5]; (3) Tom Hayne9;s Deposition Testimony [Doc. 63');">63');">63');">63-3]; and (4) Terrie Correll9;s Declaration [Doc. 63');">63');">63');">63-20]. The court separately considers each objection.

         B. Scott Shope9;s Declaration [Doc. 63');">63');">63');">63-30]

         PGAV argues the court should disregard the declaration of TZMI vice president Scott Shope [Doc. 63');">63');">63');">63-30] because it is an attempt to create a sham fact issue. [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, pp. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1-7]. PGAV9;s material fact no. 79 states: “The new Trunk Stop has greater value than the old one.” [Doc. 53');">53, p. 21, ¶ 79]. In support, PGAV cites the following portion of Shope9;s deposition testimony:

Q: Do you have any understanding—do you have enough knowledge to say whether or not the new Trunk Stop is more valuable and better than the 20-year-old previous Trunk Stop?
MR. WILSON: Object to the form.
A: Can you repeat the question?
Q: (By Mr. Wilson) Yeah.
MR. WILSON: Could you restate it?
(Whereupon, the court reporter read back the previous question.)
A: I would say yes.

[Doc. 53');">53-7, pp. 88:20 to 89:5]. The exchange continued:

Q: (By Mr. Wilson) Okay. How so?
A: Construction methods are more efficient now than they were back then. We could be saving money on utilities things like that.
Q: Was there any added improvements to the current Trunk Stop that were not part of the old Trunk Stop?
A: Still family restrooms on both sides still selling concessions.

[Doc. 53');">53-7, p. 89:6-14].

         As noted above, TZMI disputes PGAV9;s material fact no. 79. [Doc. 63');">63');">63');">63, p. 2');">p. 2');">p. 2');">p. 27, ¶ 92]. In support, TZMI cites paragraph 8 of Shope9;s declaration:

The problems created by PGAV9;s reliance on the survey required TZMI to demolish the existing Trunk Stop and replace it with a substantially similar structure that was built at a higher elevation. The new Trunk Stop was not appreciably larger or built of better materials, and it did not have different functionality. The previous Trunk Stop building contained restrooms, a cooking area, and a service counter. The new Trunk Stop likewise consists of restrooms, a cooking area, and a service counter. Other than the potential for savings on utilities as a result of more modern construction methods, the new Trunk Stop was not an “improvement” over the existing Trunk Stop.

[Doc. 63');">63');">63');">63-30, pp. 2');">p. 2');">p. 2');">p. 2-3, ¶ 8].

         Under the sham affidavit rule, courts will disregard an affidavit that conflicts with the affiant9;s prior sworn statements if it “constitutes an attempt to create a sham fact issue.” Wicks v. United States, 304 F.Supp.3d 1079, 1090 (N.D. Okla. 2018) (quoting Franks v. Nimmo, 96 F.2d 1230');">796 F.2d 1230, 1237 (10th Cir. 1986)).

Factors relevant to the existence of a sham fact issue include whether the affiant was cross-examined during his earlier testimony, whether the affiant had access to the pertinent evidence at the time of his earlier testimony or whether the affidavit was based on newly discovered evidence, and whether the earlier testimony reflects confusion which the affidavit attempts to explain.

Id. (quoting Franks, 796 F.2d at 1237). The sham affidavit rule “is generally not applied when there is independent evidence in the record to bolster an otherwise questionable affidavit.” 11 James Wm. Moore et al., Moore9;s Federal Practice § 56.94[5][c] (3d ed. 2014).

         Here, PGAV has not shown that Shope9;s declaration is an attempt to create a sham fact issue. First, the sham affidavit rule does not apply because Shope9;s deposition is supported by independent evidence in the record. For instance, in contesting PGAV9;s material fact no. 79, TZMI also cites to deposition testimony from TZMI president Terrie Correll. [Doc. 63');">63');">63');">63, p. 2');">p. 2');">p. 2');">p. 27, ¶ 92 (citing Doc. 63');">63');">63');">63-7, 40:14-20, 42:1-25)]. Second, even if the rule did apply, Shope9;s declaration does not create a “clear, irreconcilable conflict” with his deposition testimony; rather the declaration simply clarifies in what sense Shope agreed that the new Trunk Stop was more “valuable and better” than the old one. Durtsche v. Am. Colloid Co., 958 F.2d 1007, 1010 n.2 (10th Cir. 1992); see also Cornaby9;s LLC v. Carnet, LLC, No. 14-CV-00462-JNP, 2017 WL 14370');">70');">70');">7063');">63');">63');">63, at *3 (D. Utah Apr. 21, 2017) (rejecting sham affidavit argument where the affidavit did not directly contradict the deposition testimony). The court therefore declines to disregard Shope9;s declaration under the sham affidavit rule.

         PGAV takes issue with several other aspects of Shope9;s declaration. [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, pp. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4-7]. First, PGAV argues paragraph 9 should be entirely disregarded because it is cited in support of paragrap. 6');">p. 6');">p. 6');">p. 60 of TZMI9;s Statement of Facts section, which “does not indicate which, if any, of PGAV9;s facts the statement is intended to controvert.” [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4');">p. 4]. Nothing prevents a plaintiff from attempting to show the existence of a genuine issue of material fact by offering additional facts. See Fed. R. Civ. p. 5');">p. 56; LCvR 56.1; see also 11 James Wm. Moore et al., Moore9;s Federal Practice § 56.70');">70');">70');">70[5][c][i] (3d ed. 2014) (“The opposing party may also raise additional facts, with specific citations to the evidentiary record, that the opposing party claims are relevant to resolution of the motion.”). Although paragrap. 6');">p. 6');">p. 6');">p. 60 does not specifically controvert any specific undisputed fact offered by PGAV, TZMI may offer additional material facts—facts omitted by PGAV—to demonstrate that a genuine dispute of material fact exists with respect to an element of its claim such that PGAV is not entitled to judgment as a matter of law. See Fed. R. Civ. p. 5');">p. 56(a). If the rule were not so, a movant could obtain summary judgment simply by omitting material facts.

         PGAV also accuses Shope9;s declaration of being self-serving, conclusory, and lacking foundation. The mere fact that evidence is favorable or self-serving to a party does not render it inadmissible. See Fed. Trade Comm9;n v. Affiliate Strategies, Inc., 9 F.Supp.2d 1085');">849 F.Supp.2d 1085, 1096 n.20 (D. Kan. 2011); see also 11 James Wm. Moore et al., Moore9;s Federal Practice § 56.94[3] (3d ed. 2014) (“[T]here is nothing wrong with self-serving affidavits and declarations, provided they are supported by the facts in the record and satisfy the usual requirements for affidavits and declarations.”).

         However, conclusory affidavits are insufficient to preclude summary judgment. See Hall v. Bellmon, 935 F.2d 1106');">935 F.2d 1106, 1111 (10th Cir. 1991). An affidavit is conclusory if it draws inferences. Servants of the Paraclete, Inc. v. Great Am. Ins. Co., p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1560');">866 F.Supp. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1560, 1565 (D.N.M. 1994). The Tenth Circuit9;s prohibition against conclusory affidavits arises from Rule 569;s requirement that an affidavit used to oppose summary judgment “be made on personal knowledge” and “set out facts that would be admissible in evidence.” Fed.R.Civ.p. 5');">p. 56(c)(4). Paragra9');">p. 9 consists of six (6) sentences, four sentences of which are contested, and the court separately analyzes each contested sentence.

         The first sentence of paragra9');">p. 9 states “[t]he new Trunk Stop was a substantial, unexpected expense, and would not have been necessary in the absence of PGAV9;s reliance on the survey.” [Doc. 63');">63');">63');">63-30, p. 3');">p. 3, ¶ 9]. Shoppe9;s declaration establishes that he was employed by TZMI, first as the Director of Facilities and Grounds, then as the Vice-President of Facilities and Construction [Doc. 63');">63');">63');">63-30, p. 1, ¶ 1]; that, as such, he was involved in many aspects of the planning and implementation of the Lost Kingdom project for which PGAV served as architect [Id. ¶ 2]; that from the beginning of the Lost Kingdom project, TZMI communicated to PGAV that it intended to integrate the Trunk Stop into the Lost Kingdom in an effort to save money and resources [Id. ¶ 3]; and that problems created by reliance on the erroneous survey resulted in replacement of the Trunk Stop [Id. pp. 2');">p. 2');">p. 2');">p. 2-3, ¶ 8]. As a TZMI employee “involved in many aspects” of the Lost Kingdom, Shoppe unquestionably had knowledge of expenses incurred by TZMI to construct the new Trunk Stop.

         PGAV contends “no foundation has been laid for Shope to testify as to this subject involving causation.” [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, p. 5');">p. 5]. However, paragra9');">p. 9 follows averments that “[a]s construction on the Lost Kingdom project progressed, it became clear that PGAV had relied on an inaccurate survey in developing its plans for the project, ” as a result, “[t]he existing Trunk Stop, which was below the flood plain to begin with, was at an even lower elevation than the rest of the already partially constructed Lost Kingdom, ” and the disparity required modification to comply with ADA requirements, the predicted cost of which “made it impossible to preserve the existing Trunk Stop.” [Doc. 63');">63');">63');">63-30, p. 2');">p. 2');">p. 2');">p. 2, ¶¶ 6-7]. PGAV does not specifically object to these averments. Further, as previously stated, the affidavit establishes Shope9;s involvement in the planning and implementation of the Lost Kingdom project. [Id. p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1, ¶ 2]. When read in context, the declaration provides sufficient factual basis for Shope9;s statement and the court concludes sufficient foundation exists to establish that paragra9');">p. 9 reflects matters of which Shope would have personal knowledge based on his own observations and experiences during his employment.

         The second and third sentences of paragra9');">p. 9 state as follows: “In the summer of 2012, during the planning phase for the Lost Kingdom, before PGAV received the inaccurate survey, PGAV had knowledge of the true elevation of the Trunk Stop, ” and “PGAV recognized that the Lost Kingdom design it was working with at the time would not accommodate the Trunk Stop9;s true elevation.” [Doc. 63');">63');">63');">63-30, p. 3, ¶ 9]. PGAV again asserts a foundation objection, arguing TZMI has not established the foundation for Shope to testify to PGAV9;s knowledge or recognition of the Trunk Stop9;s true elevation. [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, p. 6');">p. 6');">p. 6');">p. 6]. However, the declaration includes citation to specific evidence in the record to support Shope9;s statements, which themselves are admissible evidence. See [Doc. 62-1, pp. 7');">p. 7');">p. 7');">p. 7-33]. Thus, sentences two and three satisfy the requirements of Rule 56 and are not “conclusory.”

         Finally, PGAV contends the court must disregard the sixth (and last) sentence of paragra9');">p. 9 as a “baseless conclusion.”[2] In the sixth sentence, Shope declares “. . . after it received the inaccurate survey, PGAV discarded the alterations and reverted to a design that, based on the true elevation of the Trunk Stop, would ultimately not allow the Trunk Stop to be retained.” [Doc. 63');">63');">63');">63- 30, p. 3');">p. 3, ¶ 9]. TZMI cites no evidence in the record to support the sixth sentence. Nor does the declaration include any other factual averments from Shope, a TZMI employee, regarding his knowledge of PGAV9;s decision making after discovery of the inaccurate survey. Thus, the court is not persuaded that the last sentence of paragra9');">p. 9 reflects information known to Shope through his own experience at TZMI or derived from his personal observation. Rather, the last sentence of paragra9');">p. 9 is an impermissible inference, which the court does not consider.

         PGAV also argues Shope has no foundation to testify to the facts contained in paragraphs 10 and 11 of his declaration. Paragraphs 10 and 11 are not cited in TZMI9;s response, and PGAV9;s objection as to them is therefore moot. To the extent that TZMI relies on paragraphs 10 and 11 in objecting to PGAV9;s motions in limine, the court will consider PGAV9;s objections in ruling on those motions.

         C. Shope9;s Deposition Testimony [Doc. 63');">63');">63');">63-5]

         PGAV next objects to a portion of Shope9;s deposition testimony claiming it contains hearsay and inadmissible lay opinion testimony.[3] [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, pp. 7');">p. 7');">p. 7');">p. 7-8]. The relevant deposition states as follows:

Q: And what problem or problems prevented, from what your recollection was, prevented preserving the Trunk Stop?
A: Initially we ran into diminished seating, diminished view shed. We tried to work around that. ADA compliance was pretty much the nail in the coffin. For it to be ADA compliant and the ramp that we had to construct, it had two issues. Number one, when I contacted Gary Schellhorn, the Director for Special Projects for the City of Tulsa, can I exclude that ramp and all of that work to get to the building from the cost incurred against the 50 percent value of that building. And he said, no, you cannot. It has to—it9;s part of it because it feeds the building. It9;s required to and attaches to. I said, okay. . . .
Q: Let me go back to the very first one you raised and that9;s the 50 percent threshold.
A: Yes.
Q: If you exceed the 50 percent in costs over the lifetime of the building.
A: Yes.
Q: You can9;t remodel. You9;ve got to do something else. Usually rebuild?
A: Yes.
Q: Had somebody done any costs evaluation for the ramp and for the other contemplated improvements to the existing Trunk Stop and came up with we9;re going to exceed 50 percent?
A: Yes, it was obvious just a few modifications we were definitely going to exceed 50 percent, but the ramp was a pretty big one.

[Doc. 63');">63');">63');">63-5, pp. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 19');">29:24 to 131:19].

         The court first considers PGAV9;s hearsay objection. PGAV argues Shope9;s testimony regarding Schellhorn9;s statement that the cost of an ADA-compliant ramp could not be excluded from the substantial improvement calculation is inadmissible hearsay. [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, p. 7');">p. 7');">p. 7');">p. 7; see also Doc. 49]. In response, TZMI asserts it is asking the court to consider Schellhorn9;s statement for its impact on TZMI9;s decision-making process regarding the feasibility of modifying the Trunk Stop—not the truth of the matter asserted. [Doc. 77');">77, 9');">p. 9].

         TZMI cites Shope9;s deposition testimony to support ¶ 73 in its “Statement of Facts” section which states:

While evaluating the feasibility of these modifications, TZMI was notified by City officials that any such changes, including any ADA ramps, would count towards the City9;s monetary limit on improving existing structures within a floodplain. At the time, the total cost of the changes needed to salvage the Trunk Stop were well in excess of that limit.

[Doc. 63');">63');">63');">63, p. 24, ¶ 73 (emphasis added)]. Paragrap. 7');">p. 7');">p. 7');">p. 73 is immediately followed by ¶ 74, which states, in part, “[f]or the foregoing reasons, TZMI ultimately determined that its only viable option was to demolish the Trunk Stop and rebuild it at an elevation matching the rest of Lost Kingdom.” [Id. ¶ 74 (emphasis added)]. When read in context, the court agrees that, for purposes of summary judgment, TZMI offers Shope9;s testimony regarding his conversation with Schellhorn for its effect on the listener and therefore the prohibition against hearsay is inapplicable.

         PGAV also objects to Shope9;s testimony that the cost of an ADA-compliant ramp would have exceeded fifty percent (50%) of the market value of the Trunk Stop as impermissible lay opinion. It is well-established that a property owner is competent to testify regarding the reasonable market value of the owner9;s real property. Poteete v. MFA Mut. Ins. Co., 527 P.2d 18, 21 (Okla. 1974) (“An owner of property is not required to prove his qualifications in order to testify as to the value of property in the same degree as a stranger . . . . An owner is competent to testify as to his opinion as to the value of his property . . ., but his opinion is not conclusive.”); State ex rel. St. Highway Comm9;n v. Johnson, 63');">63');">63');">63 S.W.2d 100');">563');">63');">63');">63 S.W.2d 100, 103 (Mo.Ct.App. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1978). The general rule “rests on the assumption that [the owner] is particularly familiar with the characteristics of the land as well as its actual and potential uses.” Cohen v. Bushmeyer, 251 S.W.3d 345, 349 (Mo.Ct.App. 2008); see also Minick v. Rhoades Oil Co., 33 P.2d 598');">533 P.2d 598 (Okla. 1975) (requiring familiarity with the property and purposes for which it may be used).

         PGAV asserts the general rule is inapplicable because the City of Tulsa, not TZMI, owns the Zoo9;s real property. PGAV cites United States v. Easements & Rights-of-Way Over a Total of 15.66 Acres of Land, More or Less, in Gordon, Cnty., 53');">53');">315 F.Supp.3d 1353');">53, 1363');">63');">63');">63 (N.D.Ga. 2018), in support of a broad prohibition of testimony regarding fair market value by non-owners. However, in that case, the witness, the owner9;s daughter, purported to base her testimony on familiarity with property in close proximity to the subject property, not familiarity with the subject property itself. Id. at 1361. Here, TZMI is necessarily familiar with the Zoo9;s real property through its management of the Zoo9;s operations. TZMI has been responsible for the management of the Zoo9;s operations since the Zoo9;s privatization in 2010. As property manager for the Zoo, TZMI is necessarily familiar with the Zoo9;s real property and its potential uses. In fact, TZMI adopted and began implementing a long-term plan to update and improve the Zoo9;s facilities, infrastructure, and exhibits—including the Lost Kingdom. Thus, the principles underlying a property owner9;s competence to testify regarding property9;s market value equally apply to TZMI as a property manager and the Easements and Rights-of-Way decision is unpersuasive. The court applies the general rule under these facts.

         D. Tom Haynes9; Deposition Testimony [Doc. 63');">63');">63');">63-3]

         Next, PGAV objects to a portion of deposition testimony by White Surveying Co. president Tom Haynes. [Doc. 71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71');">71, pp. 8-9]. In ¶ 37 of its “Statement of Facts” section, TZMI states:

During his deposition, Haynes testified that he would have performed the survey using NAVD 88 datam [sic] had PGAV requested it on it [sic] Survey Requirements form.

[Doc. 63');">63');">63');">63, p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 1');">p. 14, ¶ 37]. In support, TZMI cites the following deposition testimony by Haynes:

Q: Okay. If the survey requirements form had said to use NAVD 9;88 datum, what would you have done differently?
MR. DRAKE: Object to the form.
A: Considerably different. At that point we would have had to tie into a known NGVD monument that has an established elevation on it. Generally we used two control points, that and then transfer that elevation back to the site.
Q: (By Mr. Fitzgerald) So to put it in simple terms, if PGAV's survey requirements form had said to use the NAVD '88 datum, that's exactly ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.