Sun Yung Lee v. Zom Clarendon, L.P.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 10-1344

SUN YUNG LEE,

Plaintiff - Appellant,

v.

ZOM CLARENDON, L.P.,

Defendant - Appellee.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. T. S. Ellis, III, Senior
District Judge. (1:09-cv-00402-TSE-JFA)

Argued: January 26, 2011 Decided: May 6, 2011

Before WILKINSON and KEENAN, Circuit Judges, and Irene C.
BERGER, United States District Judge for the Southern District
of West Virginia, sitting by designation.

Affirmed by unpublished per curiam opinion.

ARGUED: Nini Tin, Mark Davis Cummings, SHER, CUMMINGS & ELLIS,
Arlington, Virginia, for Appellant. John E. Rinaldi, WALSH
COLUCCI LUBELEY EMRICH & WALSH, PC, Prince William, Virginia,
for Appellee. ON BRIEF: E. Andrew Burcher, G. Evan Pritchard,
WALSH COLUCCI LUBELEY EMRICH & WALSH, PC, Prince William,
Virginia, for Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

The instant appeal involves a dispute over a 14-foot

wide L-shaped portion of property located in the Clarendon

subdivision in Arlington, Virginia. Here, we consider whether an

express or prescriptive easement exists over the property. We

also review the district court’s ruling to disallow expert

opinion with respect to the creation of the purported express

easement. For the reasons that follow, we affirm the district

court’s judgment.

I.

Plaintiff-Appellant, Sun Yung Lee (hereinafter “Lee”),

the proponent of the disputed easement, owns the putative

dominant estate, which for purposes of this opinion will be

referred to as lots 238, 239, 240 of the Clarendon subdivision

and portions of lots 217 and 241 (the “Reamy House”). Relevant

to this dispute, the sole Defendant-Appellee, Zom Clarendon,

L.P. (“Zom”), a Delaware limited partnership, owns the remainder

of lots 217 and 241, as well as, lots 242 through 247 of the

Clarendon Subdivision property. The parties’ land is contiguous.

Lee’s property forms a triangle which faces both Washington

Boulevard and North Irving Street. (Appellant’s Brief at 10). A

portion of this property consists of commercial business spaces

which are front-facing on North Irving Street. Lee claims she is

2
entitled to use the paved driveway across Zom’s property for

access to the rear of the buildings located on her property.

Prior to discussing the litigation before the district

court, a brief discussion of the relevant conveyances critical

to the ownership history of the disputed land is warranted.

A.

In 1900, a large tract of land in Arlington, Virginia,

was subdivided into approximately 300 lots, currently known as

the Clarendon Subdivision. (Joint Appendix (“J.A.”) at 34.) Lulu

Cameron Follansbee purchased lot 217 and lots 238-242 of the

Clarendon subdivision in January 1924. (Id. at 35.) By deed

recorded on July 7, 1926, Follansbee conveyed portions of lots

217 and 241 to Judson Reamy. (Id. at 37-38.) This conveyance

included a building constructed over portions of lots 217 and

241 which is referred to by the parties as the Reamy House or

Reamy property. The balance of Follansbee’s lots was transferred

through various mesne conveyances which resulted in Dick

Missakian’s purchase of the lots on October 29, 1927. (Id. at

42-43.) On July 10, 1928, Missakian recorded a deed of trust on

lots 238-240, 242, and the portions of lots 217 and 241 that did

not include the Reamy property. (Id. at 45-48.) This deed of

trust secured a loan in the amount of $32,500 made by Mary

Hutchison to Missakian with respect to forty promissory notes.

3
Claude H. Woodward and H. Glenn Phelps were named as trustees

(the “Woodward trustees”). The Woodward Deed of Trust authorized

the trustees to release and re-convey the property back to

Missakian, his heirs and assigns, upon full payment of the

notes. However, upon default, the trustees were permitted to

sell the property. (Id.)

By deed dated July 14, 1928, Missakian sold the

parcels to Kristopher Dadaian subject to the Woodward deed of

trust. (Id. at 50.) 1 In September 1929, Dadaian conveyed the

properties to B.M. Hedrick, who likewise purchased the

properties subject to the Woodward deed of trust. (Id. at 55.)

Critical to the instant dispute, on March 1, 1932, the Woodward

trustees and Hutchison, the note holder, executed a deed

partially releasing Hedrick from the terms of the Woodward deed

of trust. (Id. at 31.) This deed of partial release revealed

that Hedrick had sold portions of lots 241 and 242 and paid

$4,500 to Hutchinson. 2 (Id.) Hutchinson “directed” the trustees

1
The property was also encumbered by a second deed of trust
which named Frank L. Ball and Lawrence Douglas as trustees and
Follansbee as beneficiary. (Id. at 52.) This second deed of
trust was subordinate to the Woodward Trust and is not material
to the instant dispute given the Woodward Trustees’ foreclosure
on the property in 1932.
2
By deed dated January 8, 1932, Hedrick sold portions of
lots 241 and 242 to Enoch A. Norris. (Id. at 61-62.) This deed
did not include any language respecting an easement.
(Continued)
4
to “release, relinquish, grant and convey” to Hedrick title to

lot 242 and the portions of lots 217 and 241 that did not

include the Reamy property,

subject however, to a right of way for ingress and
egress purposes for the benefit of the owners of lots
238, 239, and 240 over the following portion of land
hereby released and contiguous thereto said right of
way being bounded and described as [lot 217].

(Id.) (Emphasis added). Lots 238-240 remained subject to the

Woodward deed of trust. Only the Woodward trustees and the note

holder, Hutchison, signed this deed of partial release. It is

upon this document that Lee relies for the assertion that an

express easement over Zom’s land was reserved.

By 1936, title to lots 217, 241 and 242 sans the Reamy

House was united in Charles G. Schott. After a series of

conveyances, Zom ultimately purchased this property in 2006 from

the family of Channing Strother.

Lots 238-240 remained subject to the Woodward deed of

trust until May 1935, when Hedrick defaulted on the loan. At

the direction of the note holder, Hutchinson, the Woodward

Additionally, on May 27, 1932, Hedrick sold the portions of lots
217, 241 and 242 that he still owned to Hannah F. M. Hedrick,
subject to “the restrictions and reservations of record.” (Id.
at 63-64.) Notably, this deed did not include a specific
reference to the purported easement created in the deed of
partial release made just months earlier.

5
trustees foreclosed on the property and sold the lots, “less and

except, the land released by deed[,]” at a public auction to

Union Investment Company of Washington for $20,000. (Id. at 69-

71.) It is upon this foreclosure that Lee contends that an

easement was created. Remarkably, the Trustee’s Deed did not

include a reference to any reservation or creation of an

easement. In 1943, Teck Construction Co. purchased these lots

and in 1958, purchased the Reamy property, thereby merging title

to the Reamy property and lots 238-240 in a single owner. In

1963, Teck sold these lots to Lee’s family. (See id. at 79-87.)

B.

On or about March 19, 2007, as part of its plans to

develop its property, Zom erected a chain link fence blocking

access to the driveway utilized by Lee. (J.A. at 27.) Zom plans

to construct a high rise building with both residential and

retail space over the disputed land. (Appellant’s Brief at 2-3.)

Lee advised Zom that the fence interfered with her right of way

and requested that it be moved. (J.A. at 28.) The fence was not

moved and on March 17, 2009, Lee commenced this civil action in

Arlington County Circuit Court seeking a declaration confirming

that she has a valid easement with a legal right of use without

interference from Zom and an injunction enjoining Zom from

blocking her access to the easement.

6
 Zom removed the case to the United States District

Court for the Eastern District of Virginia invoking the court’s

diversity jurisdiction. Upon consideration of Lee’s motion to

remand and following jurisdictional discovery, the district

court ultimately determined that it had subject matter

jurisdiction pursuant to 28 U.S.C. § 1332.

The parties thereafter filed cross motions for summary

judgment. Lee advanced three theories to support her assertion

that an easement existed which allowed her to cross Zom’s land

to access portions of her land lots. Generally, Lee claimed that

an easement for the benefit of lots 238-240 was expressly

reserved and created in a deed of partial release.

Alternatively, Lee claimed she has an easement by prescription

or implication to a separate area of land surrounding a building

known between the parties as the Reamy House. The district

court granted in part and denied in part the parties’ motions.

Pertinent to the discussion that follows, the district court

found that an express easement was not created because neither

the trustees nor the note holder of the Woodward deed of trust

had the authority to create an easement in the deed of partial

release; that Lee inappropriately relied on expert opinion to

support the legal conclusions that a valid easement was created

in the deed of partial release and that the deed of partial

release was within Zom’s chain of title; that, pursuant to

7
Virginia law, Lee’s claim of an easement by implication fails

because she could not establish that the easement existed at the

time of severance in 1926; and that genuine issues of material

fact existed which precluded an award of summary judgment on

Lee’s claim of easement by prescription. Lee v. Zom Clarendon,

L.P., 665 F. Supp. 2d 603 (E.D. Va. 2009), judgment clarified

(Nov. 20, 2009). 3

The district court thereafter conducted a bench trial

with respect to Plaintiff’s claim of prescriptive easement and

found in favor of Zom. The court determined that Lee’s use of

the paved driveway was continuous, uninterrupted and with the

knowledge and acquiescence of the driveway’s owners, but her use

was not adverse, exclusive or under a claim of right. Lee v. Zom

Clarendon, L.P., 689 F. Supp. 2d 814 (E.D. Va. 2010).

3
On November 5, 2009, Lee moved to alter the judgment to
clarify the parties’ property descriptions and to assert that
the court mischaracterized her attorney’s statements during the
hearing with respect to her claim of an express easement. The
court, on November 20, 2009, granted the modification of the
description of Lee’s property, but denied her motion to
reconsider the court’s ruling with respect to whether the
easement was expressly created.

On December 22, 2009, Lee sought to appeal the court’s
October 22, 2009 and November 20, 2009 Order to this Court.
However, on February 1, 2010, she moved to dismiss the appeal,
pursuant to Rule 42(b) of the Federal Rules of Appellate
Procedure, on “terms agreed to by the parties.” We dismissed
the action the following day.

8
 On March 23, 2010, Lee filed the instant notice of

appeal to seek appellate review from the district court’s

February 24, 2010 Order entering judgment for defendant Zom.

(J.A. 1063). 4 Lee seeks our review of the district court’s grant

of summary judgment with respect to her claim of an express

easement, as well as the evidentiary ruling on her expert

opinion reports. She also appeals the district court’s

determination that a prescriptive easement does not exist over

Zom’s land. 5

II.

We review a district court’s award of summary judgment

de novo. Jennings v. Univ. of N.C., 482 F.3d 686, 694 (4th Cir.

2007) (en banc) (citing Hill v. Lockheed Martin Logistics Mgmt.,

Inc., 354 F.3d 277, 283 (4th Cir. 2004) (en banc)). Summary

judgment shall be granted if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to summary judgment as a matter of law. Fed.R.Civ.P.

56(a). We review a district court’s decision whether to admit

4
On July 29, 2010, Lee moved this Court to certify two
questions to the Supreme Court of Virginia. Appellee contested
the motion and on August 27, 2010, this Court denied the
request.
5
Lee does not appeal the district court’s ruling with
respect to her theory of an easement by implication.

9
expert testimony for abuse of discretion. O'Neill v. Windshire-

Copeland Assocs., 372 F.3d 281, 284 (4th Cir. 2004). Finally, we

review a district court’s judgment entered after a bench trial

under a “mixed standard of review.” Universal Furniture Int’l,

Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 427 (4th Cir.

2010). Pursuant to this standard, factual findings may be

reversed only if clearly erroneous, while conclusions of law are

reviewed de novo. (Id.)

III.

A.

Lee contends that she is “the holder of an express

Right of Way [or easement] validly reserved in the Deeds of

Partial Release.” (Appellant’s Brief at 17; see also J.A. 57-

58, 59-60.) Generally, Lee asserts that in 1932, the note

holder, Mary B. Hutchinson, the Trustees, Claude M. Woodward and

H. Clarke Phelps, and fee simple owner, B.M. Hedrick, entered

into a partial release of a portion of the property encumbered

by the Woodward Deed of Trust. Lee contends that this deed of

partial release included a reservation of an easement to benefit

lots 238-240 of her property. She asserts that, upon Hedrick’s

default, the Woodward Trustees foreclosed upon his property and

proceeded to sell the land by public auction. She contends that,

upon this foreclosure, the easement reserved in the deed of

10
partial release created an easement on what is now Zom’s

property. While this Court finds suspect Lee’s contention that

an easement springs forth as a result of a Trustee’s

foreclosure, the initial consideration must begin with Lee’s

assertion that the easement was validly reserved in the deed of

partial release.

As an initial matter, Lee, in her opening brief,

contends that the district court erred in its grant of summary

judgment by finding that neither the trustee nor the note holder

independently had the power to reserve an express easement in

the 1932 Deed of Partial Release. Instead, Lee asserts that the

district court ignored the “fee simple owner’s role as a party

to the reservation of the easement” in the deed of partial

release because his signature was not on the deed of partial

release. (Appellant’s Brief at 14.) Lee argues that B.M. Hedrick

was a named party to the Woodward Trustee’s Deed of Partial

Release and that the release and re-granting of certain property

to Hedrick was for his benefit. Lee also argues that as a

“beneficiary/grantee, B.M. Hedrick’s signature is not required

on Deeds of Partial Release.” (Id.) Perhaps, seeking a way to

sidestep the district court’s ruling that neither the trustee

nor the note holder had the authority to create an easement, Lee

seeks to carve out a distinction in her argument, now asserting

that the reservation of the easement is valid due to the fee

11
simple owner’s role in the “transaction” involving the deed of

partial release. Zom, however, contends that Lee makes the

argument, that the role of the fee simple owner was ignored, for

the first time on appeal. We agree.

“Absent exceptional circumstances, of course, we do not

consider issues raised for the first time on appeal. Rather, we

consider such issues on appeal only when the failure to do so

would result in a miscarriage of justice.” Robinson v. Equifax

Info. Serv., LLC, 560 F.3d 235, 242 (4th Cir. 2009)(internal

citations and quotations omitted). The principle applied in this

rule is that appellate courts “should not be considered a

second-shot forum, a forum where secondary, back-up theories may

be mounted for the first time. Parties must be encouraged to

‘give it everything [they have]. . . at the trial level.” Tele-

Communications, Inc. v. C.I.R., 104 F.3d 1229, 1234 (10th Cir.

1997)(internal quotations omitted). “Propounding new arguments

on appeal in an attempt to prompt us to reverse the trial court

undermines important judicial values.” (Id.)

Before this Court, Lee’s argument is distinct in that

she contends the issue is “whether the fee simple owner, Judge

B.M. Hedrick, reserved the express easement in the Deeds of

Partial release as a non-signatory named party.” (Appellant’s

Reply at 3.) This is an argument that was not squarely raised or

addressed by the district court.

12
 A review of the record before the district court

reveals that Lee initially asserted the express easement was

reserved by the note holder through the deed of partial release.

(See Memorandum in Support of Plaintiff’s Motion for Summary

Judgment at 1, Lee v. Zom Clarendon, L.P., 665 F. Supp. 2d 603

(E.D. Va. 2009) (No. 1:09cv402), judgment clarified (Nov. 20,

2009)). She later stated that the “note-holder (lienor) and

trustee validly granted, executed and recorded the Deeds of

Partial release . . . by the powers vested in them[.]” (Id. at

14); see id. at 16 (“In order to retain the best value of the

property remaining under the Deeds of Trust, the note-holder

expressly created the [easement] and did not release [the

easement] from the lien of the Deeds of Trust.”)) During a

hearing on the parties’ motions for summary judgment, Lee,

through counsel, conceded that the “trustees by themselves, in a

vacuum, couldn’t create an easement, I agree with that.”

(Transcript Motions Hearing at 21, Zom Clarendon, L.P., 665 F.

Supp. 2d 603 (E.D. Va. 2009) (No. 1:09cv402), judgment clarified

(Nov. 20, 2009)). Instead, Lee argued that the note holder had

the power to create the easement. (Id.) When prompted by the

court to explain the note holder’s power, Lee pressed that the

power to create the easement existed because “the note holder

has an interest to get the full value [of the property] . . . in

the event of default.” (Id. at 22.) Lee likened the deed of

13
partial release to a contract and stated that the easement was

retained as consideration with the fee simple owner’s consent.

(Id. at 23.) The district court appropriately concluded that a

note holder does not hold any legal interest or estate in the

property and thereby has no authority to create an easement.

Now, Lee wishes to shift this Court’s focus from the Trustee and

the note holder to the fee simple owner.

In response to Zom’s assertion that she is proffering

a new argument on appeal, Lee argues that the deeds of partial

release, which included Hedrick as a named party, were provided

to the court as part of its joint exhibits (Appellant’s Reply at

6); that her arguments were made during the October 9, 2009

motions hearing and pursuant to her motion to alter the court’s

judgment pursuant to Rule 59(e) of the Federal Rules of Civil

Procedure (Id. at 7); and that the district court ruled on the

issue when it stated “[a]lthough named a ‘party of the second

part’ in the deed of partial release, Hedrick did not sign the

instrument.” (Id.) We find Lee’s position tightly drawn and

unpersuasive. To be sure, the district court made no specific

finding or conclusion of law about the fee simple owner’s part

in the transaction. The district court merely observed in its

discussion of the conveyances underlying this dispute that the

deed of partial release was not signed by the fee simple owner.

Additionally, the mere inclusion of an exhibit and an

14
undeveloped argument are not sufficient to preserve an issue on

appeal. This is so where an issue is raised but not pursued. 6

Therefore, we decline to consider Lee’s new argument in support

6
At the hearing on Lee’s motion to alter the district
court’s judgment, the district court provided Lee with an
opportunity to explain what she considered as the district
court’s misunderstanding of her argument. The following colloquy
occurred:

THE COURT: Now, let’s turn to the next
point that you want to reargue, which is that
you want to reargue your position that the note
holder had the power to agree to the creating
[of] this easement.

ATTORNEY CUMMINGS: I don’t want to reargue
anything, your Honor. I am not permitted to
reargue.

THE COURT: Right.

ATTORNEY CUMMINGS: I just wanted to bring
to your attention, and you just stated it on
the record. I am satisfied.

THE COURT: Well, I have stated it in the
opinion.

ATTORNEY CUMMINGS: Your Honor, as my
client and I went over, she said, “he don’t
understand.” I said, “I think he does.” But . .
. “

THE COURT: Oh, I clearly do.

ATTORNEY Cummings: And when you stated
it, your Honor, there goes my argument. I am
going to sit down.

(Transcript of Motions Hearing at 9-10, Lee v. Zom Clarendon,
L.P., No.1:09cv402 (E.D. Va. Nov. 20, 2009). Even at a hearing
on her motion to alter the judgment, Lee did not press the
argument she has crafted here.

15
of an express easement. She has not presented any exceptional

circumstance necessitating appellate review of this issue and we

find that no miscarriage of justice would result. Moreover,

after having the benefit of oral argument and carefully

reviewing the briefs, record, and controlling legal authorities,

we conclude that the district court properly considered and

rejected Lee’s contention that either the trustee or note

holder, independently or collectively, had any authority to

create an express easement in the Woodward Deed of Partial

Release. 7

B.

Lee argues next that the district court erred by

excluding her “three expert witnesses and nine expert reports”

from its consideration of her summary judgment motion.

7
Even if we were to accept Lee’s invitation for this Court
to view B.M. Hedrick as the grantee or beneficiary of the deed
of partial release because he received the benefit of the
transaction (or the re-granting of the property), this view
would necessarily mean that the Trustees or the note holder
would serve in the role as the grantor in the deed of partial
release. Lee has conceded that the trustees lacked the
authority to create an easement and the district court found,
without specific challenge from Lee here, that the note holder
did not have that authority either. Therefore, we submit that it
would be inappropriate to consider the fee simple owner as a
grantee or beneficiary in this instance. Moreover, upon these
facts, and the lack of ambiguity in the language of the deed of
partial release, there is no need to look outside of the deed of
partial release, the document in which Lee asserts the
reservation was made, for any intent of the parties.

16
(Appellant’s Reply at 8). Lee contends that the reports included

expert testimony that “analyze complicated instruments, many

using obscure language and the effect of whether in ancient

practice the parties did not always execute the deed in

question.” (Appellant’s Brief at 39). She asserts that this

information and the “effect of subsequent deeds in recordation

practices during the depression and standards in the title

industry” would have been helpful to the court in determining

the effectiveness of the partial release. (Id.) Specifically,

she argues that one of her experts, Kirk Foster, could have

provided the court with a “modern example of a recorded

easement” (id. at 40), which was “created in the same manner as

the 1932 partial release transaction” which she contends

established the reserved easement. (Id. at 39; Appellant’s Reply

at 8.) While Attorney Douglas Mackall’s report “reli[ed] on

subsequent deeds in the record that show that B.M. Hedrick

ratified the reserved Right of Way” (Id.), Lee contends that

this information is relevant to the issue of the creation of a

valid easement. Zom contends that Lee has not presented any

claim to this Court that the district court abused its

discretion. Zom argues that the reports were properly excluded

in that it is immaterial that the deed of partial release was in

Zom’s chain of title if the easement was not validly created.

17
 District courts have “broad latitude in ruling on the

admissibility of evidence, including expert opinion,” and such

rulings will not be overturned “absent an abuse of discretion.”

Bryte ex rel. Bryte v. Am. Household, Inc., 429 F.3d 469, 475

(4th Cir. 2005). “A district court abuses its discretion when it

acts arbitrarily or irrationally, fails to consider judicially

recognized factors constraining its exercise of discretion,

relies on erroneous factual or legal premises, or commits an

error of law.” United States v. Delfino, 510 F.3d 468, 470 (4th

Cir. 2007). However, even if a district court’s evidentiary

ruling constitutes an abuse of discretion, such a ruling “is

reversible only if it affects a party’s substantial rights.”

Schultz v. Capital Int’l Sec., Inc., 466 F.3d 298, 310 (4th Cir.

2006); accord Fed. R. Evid. 103(a). In making its evidentiary

determinations, the trial court “exercises a gate keeping

function to assess whether the proffered evidence is

sufficiently reliable and relevant.” Westberry v. Gislaved Gummi

AB, 178 F.3d 257, 261 (4th Cir. 1999).

Federal Rule of Evidence 702 provides the focal point

for determining the admissibility of expert testimony.

Generally, expert testimony of “scientific, technical, or other

specialized knowledge” is admissible if it “will assist the

trier of fact to understand the evidence or to determine a fact

in issue.” Fed. R. Evid. 702. Conversely, such testimony is

18
inadmissible if it does not aid the trier of fact. United States

v. Barile, 286 F.3d 749, 760 (4th Cir. 2002). Whether an expert

will assist the factfinder is a question the trial court has

“wide discretion” to decide. Mercado v. Austin Police Dep’t,

754 F.2d 1266, 1269 (5th Cir. 1985). This is true “particularly

when the court sits as the trier of fact, for [it] is then in

the best position to know whether expert testimony would help

[it] understand the case.” (Id.)

We conclude on the record in this case that the

district court was well within its discretion to exclude Lee’s

expert reports. A review of the Foster and Douglas reports

indicates that they opine on the very nature of the dispute in

this matter, whether an easement can validly be created in a

deed of partial release, who has the authority to create the

easement in such an instrument (i.e., trustee or note holder)

and whether the fee simple owner’s signature is required. All of

these issues involve pure questions of law which are well within

the parameters reserved for the district court on a motion for

summary judgment and are inappropriate subjects for expert

testimony. The court simply had to look to the document

purporting to create the conveyance and determine the authority

of the parties to make its determination. “While expert

witnesses may testify as to the ultimate matter at issue, Fed.

R. Evid. 704(a), this refers to testimony on ultimate facts;

19
testimony on ultimate questions of law, i.e., legal opinions or

conclusions, is not favored.” Anderson v. Suiters, 499 F.3d

1228, 1237 (10th Cir. 2007) (citation omitted). Notably, there

were no factual questions at issue. Indeed, Lee has not

identified any before this Court. The expert reports did not

opine on any archaic language that would have provided the court

with pertinent information. The district court resolved the

issue of whether the easement was validly created as a matter of

law and on the basis of facts which were not in dispute by the

parties. Upon a determination that the easement was not validly

created, expert testimony on the proper boundaries of a search

of Zom’s chain of title became immaterial. Moreover, although

the reports may have included information regarding property

conveyances during the 1930’s, the time during which the deed of

partial release was made and while this information may have

been helpful, the district court, as the arbiter on summary

judgment motions, apparently found the testimony unnecessary.

This Court is not positioned to alter such a determination.

Further, Lee has failed to demonstrate an abuse of discretion or

that a substantial right was affected by the court's evidentiary

ruling. For these reasons, the exclusion of the expert reports

supporting Lee’s summary judgment motion is affirmed. See

Adelman v. Baker, Watts & Co., 807 F.2d 359, 366 (4th Cir. 1986)

(affirming the exclusion of testimony by expert witness which

20
included legal conclusions), disapproved on other grounds in

Pinter v. Dahl, 486 U.S. 622 (1988).

C.

Finally, we turn to Lee’s assertion that the district

court erred in finding that she failed to establish that an

easement exists by prescription for the benefit of the Reamy

Property.

In Virginia, to establish a claim of easement by

prescription, a claimant must prove that her use of the

purported servient estate was (1) adverse, (2) under a claim of

right, (3) exclusive, (4) continuous and uninterrupted and (5)

with the knowledge and acquiescence of the owners of the

servient estate. Hafner v. Hansen, 279 Va. 558, 563 (Va. 2010)

(citations omitted). Additionally, there is a temporal

requirement in that the claimant has to prove that this use

occurred for a period of twenty years. (Id.) “A party claiming

a prescriptive easement bears the burden of proving that

easement by clear and convincing evidence.” (Id.) “The essence

of an adverse use is the intentional assertion of a claim

hostile to the ownership right of another.” Chaney v. Haynes,

250 Va. 155, 159, 458 S.E.2d 451, 453 (Va. 1995).

Further, “[w]here there has been an open, visible,

continuous and unmolested use of a road across the land of

21
another for at least twenty years, the use will be presumed to

be under claim of right, and places upon the owner of the

servient estate the burden of rebutting this presumption by

showing that the use was permissive, and not under claim of

right.” Johnson v. DeBusk Farm, Inc., 272 Va. 726, 730, 636

S.E.2d 388, 391 (Va. 2006) (quoting Rives v. Gooch, 157 Va. 661,

663, 162 S.E. 184, 184 (1932)); see also Pettus v. Keeling, 232

Va. 483, 485, 352 S.E.2d 321, 323-24 (1987).

As the Supreme Court of Virginia has oft said, where

the use of a roadway, or in this case, driveway “ha[s] been in

common with such use by the general public, the element of

exclusiveness, requisite for a prescriptive right, would be

negated. In such a case, the right of each user of the way is

dependent upon the enjoyment of similar rights by others, and no

private prescriptive rights will arise.” Burks Bros. of

Virginia, Inc. v. Jones, 232 Va. 238, 246, 349 S.E.2d 134, 139

(Va. 1986). (citation omitted). However, “prescriptive rights

will arise where each user independently asserts his right to

enjoy the right-of-way for himself, because such use is

exclusive even though others assert similar rights for

themselves, but rights asserted by users in common are

dependent, not exclusive.” (Id.) (citing Totten v. Stuart,143

Va. 201, 203-04, 129 S.E. 217, 218 (1925). The term “exclusive”

was expounded upon by the Virginia Supreme Court in Totten.

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 The use [is] ‘exclusive’ when it is proprietary, not a
use by the public generally, and is exercised under
some claim which is independent of and does not depend
for enjoyment upon similar rights by others. It is not
necessary, however, that the claimant be the only one
to enjoy the right of way, as other persons may
acquire a prescriptive right to use it. When a way has
been so used for a period of more than twenty years,
the origin of the way not being shown, the bona fides
of the claim of right is established and a presumption
of a right to the use arises from the long
acquiescence of the owner of the servient estate, and
the burden is on him to rebut that presumption by
showing permission or license from him or those under
whom he claims.

Totten, 143 Va. at 203-204, 129 S.E. at 218 (citations omitted).

The district court found that the evidentiary record

at the bench trial supported a finding that Lee’s use of the

driveway was continuous and uninterrupted and with the knowledge

and acquiescence of the driveway’s owners, but that she failed

to show by clear and convincing evidence that her use was

adverse, exclusive or under a claim of right. Additionally, the

district court found that Lee could not satisfy the temporal

requirement, contrary to Lee’s assertion here on appeal.

In reaching this conclusion, the district court made

fifteen (15) enumerated findings of fact. 8 The United States

Supreme Court has instructed that “findings of fact of a

8
During the bench trial, the district court received
testimony from Lee, her daughter and son-in-law, Jeannie and
Donald Williams, as to the driveway’s use. Zom proffered the
testimony of John Strother, the previous owner of the purported
servient estate, from whom it acquired its property.

23
district court, especially when the judge has heard the

witnesses ore tenus in open court, shall not be set aside unless

clearly erroneous, with due regard being given to the

opportunity of the trial court to judge the credibility of the

witnesses.” Anderson v. City of Bessemer City, N.C., 470 U.S.

564 (1985). In Anderson, the Court reminded us that “a

reviewing court [must not] reverse the finding of the trier of

fact simply because it is convinced that it would have decided

the case differently,” 470 U.S. at 573; “appellate courts must

constantly have in mind that their function is not to decide

factual issues de novo,” (id.); and “[w]here there are two

permissible views of evidence, the factfinder’s choice between

them cannot be clearly erroneous[.]” (Id. at 574.)

Here, we must harmonize this deferential standard of

review of factual findings, as set forth in Anderson, with the

law. Our task is simplified by the parties. Before this Court,

neither party has assigned any error to the district court’s

findings of fact with respect to Lee’s prescriptive easement

claim. (Appellant’s Reply at 10; Appellee’s Brief at 26, 31).

Instead, they have each relied upon them in their dispute of the

district court’s conclusion of law. We have reviewed the record

in this matter, and we adopt the factual findings of the

district court as reflected herein as they are based on

substantial evidence, are not clearly erroneous and are without

24
objection by the parties. Anderson, 470 U.S. 564 (1985); see

also Mom n Pops, Inc. v. City of Charlotte, N.C., 162 F.3d 1155

(4th Cir. 1998) (unpublished table decision); Abex Corp. /

Jetway Div. v. Controlled Sys., Inc., 983 F.2d 1055(4th

Cir.1993)(unpublished table decision)(citing); Fed. R. Civ. P.

52(a)(6). For context of the discussion that follows, here are

the enumerated district court findings:

1. Plaintiff is the owner of two adjoining parcels
of real property in Arlington, Virginia. The
first parcel consists of Clarendon Subdivision
lots 238-240 and portions of lots 217 and 241.
More familiarly, this property is located at
the intersection of N. Irving Street and
Washington Boulevard. The second parcel
consists of portions of lots 217 and 241 of the
Clarendon Subdivision, and bears the address
1122 N. Irving Street. This second parcel is
described by the parties as the Reamy house.
The putative easement runs alongside the
northwest and southwest sides of the Reamy
house, thus providing access to the rear of the
Reamy house. Notably, the rear of the Reamy
house is also accessible by passing through the
structure or via a parking lot bordering the
southeast side of the Reamy house. Plaintiff
purchased these parcels in 1963.

2. The sole defendant is Zom Clarendon, L.P., a
limited Delaware partnership authorized to do
business in Virginia. Defendant owns the
putative servient estate, which consists of
Clarendon Subdivision lots 206-216, 242-247,
and those portions of lots 217 and 241 that do
not include the Reamy house. In 2006, defendant
purchased this property, which is immediately
adjacent to plaintiff’s property, from the

25
 family of Channing Strother. Defendant intends
to build a mixed-use high rise with both
residential units and retail space on these
lots.

3. In 1956, plaintiff’s husband and father-in-law,
as lessors, opened a Chinese restaurant located
at 3211 Washington Boulevard. The restaurant
and the Reamy house are located on adjoining
parcels of land. The restaurant, which faces
Washington Boulevard, is also accessible from
the rear through the driveway at issue on N.
Irving Street. In 1956, plaintiff owned none of
these properties.

4. Plaintiff began regularly visiting the
restaurant in 1956 to eat dinner. Between 1956
and 1959, plaintiff did not observe any cars
parked on the purported easement.

5. In 1959, plaintiff began working at the
restaurant four to five days a week. Although
the restaurant was located on Washington
Boulevard, plaintiff entered the restaurant
using a rear entrance. On occasion, plaintiff’s
husband, with plaintiff as a passenger in the
car, was unable to reach the rear entrance
because cars were parked on the driveway.
Plaintiff’s father-in-law would then ask the
Reamy house's tenants to move their cars, which
they did, allowing plaintiff and her husband to
access the restaurant’s rear entrance.
Plaintiff worked at the restaurant until 1996.

6. On November 15, 1963, plaintiff’s family
purchased the Reamy house. Plaintiff’s family
believed that a survey given to them at the
closing conveyed the right to use the driveway
and that they nonetheless had an inherent right
to use the driveway in light of the property's
physical layout.

26
7. In 1965, plaintiff’s parents-in-law moved into
the Reamy house’s second story and resided
there until 1979. During this period,
plaintiff’s parents-in-law would clear garbage,
trash, leaves, and sometimes snow from the
driveway. In addition, plaintiff’s mother-in-
law planted a garden on the driveway containing
beans, mint, and leeks.

8. Also in 1965, other tenants began to occupy the
ground floor of the Reamy house. Specifically,
the ground floor housed an antique store from
1965-1980, housed a bed frame store from 1980-
1990, and was used by two carpenters around
1998 to store materials and tools. The antique
store tenants parked on the purported easement
from 1965-1980, and the bed frame store and
carpenter tenants used the driveway to access
the rear of the Reamy house from 1980-1990. In
addition, visitors to the Reamy house—such as
plaintiffs daughter, Jeannie Williams, and
plaintiff’s son-in-law, Donald Williams—
sometimes parked on the driveway. In
particular, Donald Williams used the driveway
when he assisted plaintiff’s husband in
periodically repairing or repainting the Reamy
house beginning in the late 1970s. Plaintiff
did not receive any complaints or objections
with respect to the use of the driveway in this
manner.

9. In 1979, plaintiff and her husband began
maintaining the driveway and grew vegetables
there. Furthermore, plaintiff and her husband
would also park on the driveway. Twice a year,
beginning at an unspecified time, plaintiff
used the driveway for a Chinese ceremony in
which she would spread rice and coins on the
ground.

27
10. Also in 1979, the family of Channing Strother
purchased the property currently owned by
defendant and thus became the owners of record
of the driveway-easement at issue. Channing
Strother and his son, John Strother, opened a
printing store on their property in 1979.
Notably, the shop could only be reached via the
driveway off N. Irving Street because the store
did not front Washington Boulevard, and as such
the Strothers and their customers regularly
used the driveway to reach the printing store.
In an effort to ensure that customers could
find and access the printing store, which was
set back from N. Irving Street, the Strothers
maintained the driveway, including having it
repaved at one point.

11. In 1990, Donald and Jeannie Williams opened a
delicatessen named “Sam’s Corner” on an
adjoining parcel of land east of the Reamy
house and restaurant. Since 1990, the ground
floor of the Reamy house has been used to store
materials related to the operation of Sam's
Corner, and plaintiff and her family have used
the driveway to access these materials.

12. The members of plaintiff’s family were not the
only people to use the driveway; rather, the
driveway was regularly used by others to access
buildings on both plaintiff’s and defendant's
lots.

13. Plaintiff’s family and the Strothers had a
neighborly, friendly relationship. At no time
did they become entangled in a dispute or
disagreement relating to the driveway's use.
Plaintiff’s family, particularly Donald
Williams, saw and conversed with the Strothers
on the driveway in a cordial manner. At no time
did plaintiff’s family represent to the

28
 Strothers that they, plaintiff’s family, had a
right to use the driveway.

14. On at least one occasion, Donald Williams and
John Strother discussed Williams’s intention to
use the driveway to facilitate repair of the
Reamy house. Although Williams claims that he
never asked the Strothers for permission to use
the driveway, Strother testified more credibly
that permission was sought and granted on this
occasion. Whether Williams actually sought
permission from Strother, or simply advised
Strother of the driveway's use consistent with
their neighborly relationship, is not a factual
dispute that requires resolution here, as this
fact is not dispositive of plaintiff’s claim.

15. No witness testimony supports a factual finding
that plaintiff’s family used the driveway in a
manner that interfered with the Strothers’ use
of the driveway. At most, Donald Williams asked
Charming Strother at one point to move his car
along the driveway so that maintenance could be
performed on the Reamy house, and Strother
obliged without incident. Williams’s use of the
driveway in this regard is consistent with the
neighborly relationship between plaintiff’s
family and the Strothers.

Lee v. Zom Clarendon, L.P., 689 F. Supp. 2d 814 (E.D. Va. 2010).

With our canvas properly framed, we now consider Lee’s

argument for a prescriptive easement. The parties do not

challenge the district court’s determination that Lee’s use of

the purported easement was continuous and uninterrupted and with

the knowledge and acquiescence of the driveway’s owners.

However, Lee asserts that she adequately demonstrated that her

29
use was (1) adverse, (2) under a claim of right, and (3)

exclusive for the duration of the prescriptive period from 1963

to 1983 by clear and convincing evidence. Lee argues that the

district court used the wrong legal definitions to determine

that her use of the driveway was not “exclusive” and “adverse.”

She also argues that she was deserving of a rebuttable

presumption of having a claim of right to the driveway and that

the district court’s findings support that her use was not

permissive.

We disagree. Lee fails to show an exclusive use of the

driveway necessary to establish an easement over Zom’s land

because the right of Lee and her family to use the driveway was

dependent upon the similar use of Strother and the general

public, his customers. The evidentiary record provides that

Lee, her daughter and son-in-law used the driveway for parking.

Additionally, from 1965-1990, commercial tenants leasing the

ground floor of the Reamy House used the driveway to access the

rear of the Reamy House. This use, of parking or driving across

the easement, is consistent with the use of the general public

who visited the businesses owned by the servient owner, the

Strothers. There is no dispute that, in 1979, the Strothers

operated a print shop business on their property which could

only be accessed by their customers via the driveway because the

store did not front Washington Boulevard. On these facts, Lee

30
cannot show a right to use the driveway independent of that use

by Strother. Indeed, her use of the driveway is dependent upon

the use of Strother and his customers. Lee also argues that her

father-in-law maintained the cleanliness of the driveway during

the fourteen year period of 1965-1979. Again, maintenance of the

driveway is not inconsistent with the Strothers’ actions. John

Strother testified, and Donald Williams agreed, that Strother

maintained the driveway, as well. Indeed, Strother and his

father had the driveway repaved. Lee’s assertions of use are

common to that of Strother and are not readily distinguishable.

Finally, Lee asserts that she used the driveway for a garden

and, twice a year, for a Chinese ceremony in which she would

spread rice and coins on the ground. While this use may have

been unique to Lee, it is obvious that both neighbors used the

driveway in common and this use does not rise to an independent

assertion of a right to use the driveway.

Therefore, we agree with the well-reasoned opinion of

the district court, Lee’s claim of a prescriptive easement is

fatally flawed in that she has not shown by clear and convincing

evidence that her use of the driveway was exclusive. 9

9
Lee’s contention that the district court used a
colloquial, rather than legal definition of “exclusive,” is
wholly without merit. The district court applied Nelson v.
Davis, 262 Va. 230, 546 S.E.2d 712 (Va. 2001), which is wholly
(Continued)
31
 Finally, Lee argues that she should have been given

the benefit of the shifting presumption that she used the

driveway adversely and under a claim of right. We disagree.

Based on the foregoing, Lee has failed to show that her use of

the driveway was unmolested or exclusive. Lacking such a

demonstration, she is not entitled to any presumption,

rebuttable or otherwise. This finding is consistent with the

reasoned analysis of the district court. Given the failure of

evidence with respect to exclusivity, a finding on the remainder

of the factors required to establish a prescriptive easement is

not necessary.

IV.

For the foregoing reasons, we affirm the district

court’s judgment on Lee’s claims for an express or prescriptive

easement. Additionally, we find that the district court did not

abuse its discretion in its decision to exclude Lee’s expert

reports.

AFFIRMED

consistent with the instruction the Supreme Court of Virginia
provided in Totten.

32