Sun Yung Lee v. Zom Clarendon, L.P. , 453 F. App'x 270 ( 2011 )


Menu:
  •                              UNPUBLISHED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    Affirmed by unpublished per curiam opinion.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    Unpublished opinions are not binding precedent in this circuit.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.
    22
    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