United States District Court, D. Nevada
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT
(ECF NO. 112)
P. GORDON UNITED STATES DISTRICT JUDGE.
State of Nevada exercised its eminent domain powers and
condemned property needed for a public roadway project called
Project Neon. Included in the condemned property was a
portion of a vacant lot at 1404 S. Martin Luther King
Boulevard in Las Vegas. Defendants Darrell E. Jackson; Thomas
M. Strawn, Jr.; and Andrew S. Levy (the
“Landowners”) own the property.
addition to condemning a portion of the property, the State
also obtained a four-year temporary construction easement of
approximately 1, 728 square feet or 0.04 acres. ECF Nos.
112-1 at 4; 112-2 at 3. The State's expert opined that
the just compensation owed for the temporary construction
easement was a four-year rental value of $9, 000. ECF No.
117-1 at 5. The Landowners' expert, Tio DiFederico,
reached a similar value ($10, 000) using a similar
methodology. Id. at 8-10.
granted the State's motion for occupancy on April 4,
2016. ECF No. 8. However, the State did not begin using the
temporary construction easement until January 16, 2017. ECF
No. 112-1 at 4. Dale Keller, the project manager for Project
Neon, avers that he never received a complaint from the
Landowners about not being able to access or use the
unencumbered remainder of the property. Id. at 4-5.
in February 2017, the Landowners disclosed a new expert
report opining that the Landowners are entitled to $265, 000
in compensation for four years' rent of the unencumbered
remainder because the State has exceeded the temporary
construction easement and blocked access to the remainder of
the property. DiFederico visited the site a few times and
noted that the State's use of the temporary construction
easement had “completely blocked access to the
unencumbered remainder” due to fencing and the
placement of trucks and a crane on the easement. ECF No.
112-2 at 4-5. Landowner Strawn testified that he saw workers
parking their vehicles on the remainder of the property, not
in the easement. ECF No. 117-8 at 3-4. DiFederico suggests
that 48 months of rent of the remainder are due, given the
State's four-year temporary easement. ECF No. 112-2 at 5.
State moves for summary judgment on the Landowners'
request for four years' rent for the remainder. The State
admits it owes rent for the temporary construction easement.
But it argues it should not have to pay rent on the
unencumbered remainder of the property because it is not
using it nor will it. The State argues that to the extent the
Landowners contend the State's activities damage the
Landowners' ability to use the remainder of the property,
there is no evidence the Landowners have suffered actual
losses because the lot is vacant so there is no
non-speculative proof of damages. Finally, the State argues
that even if damages could be shown, there is no basis to
request four years' worth of rent. The State did not
start actually using the property until January 16, 2017, so
any request for rent before that date is unsupported.
Landowners respond that once their expert realized that he
erroneously assumed that access to the remainder would not be
blocked, he applied the same valuation methodology to the
remainder to determine the rental value owed. The Landowners
also assert that contrary to the State's assertion, the
State is using part of the remainder in addition to the
temporary easement, such as parking cars and trucks there.
The Landowners thus contend that they are properly seeking
just compensation for the area actually being occupied by the
State, which is larger than what was set forth in the
temporary easement. As for the appropriate time frame for how
long rents should be paid, the Landowners argue that the
State identified that it would need the temporary easement
for four years. Alternatively, the Landowners argue the
compensation owed is a fact question for the jury.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Landowners have presented evidence raising a genuine dispute
about whether the State (1) used a greater area as the
easement than it said it would and (2) occupied the remainder
by blocking access to it. Landowner Strawn testified under
oath that he saw cars parked on the remainder. DiFederico
states that he saw equipment and fencing blocking access to
the property.Whether the State in fact took more than it
anticipated is a question of fact for the jury to resolve.
State, through its own expert, concedes it must pay just
compensation in the form of rent for the temporary
construction easement. Whether the State's occupation of
the remainder, in whole or in part, constitutes a taking for
a public purpose, or was the result of discrete acts of
trespass by State employees, is a matter for the finder of
fact. Likewise, it will be for the jury to
determine how much of the property the State took for the
temporary construction easement and for how long.
Consequently, I deny the State of Nevada's motion for
partial summary judgment regarding the four years' rent
for the remainder.
THEREFORE ORDERED that plaintiff State of Nevada's motion
for partial summary judgment (ECF No. 112) is
FURTHER ORDERED that the parties shall prepare and file a
proposed joint pretrial ...