Davis v. Property Owners Assn. at Moodus Lake Shores, Inc.

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KIRK B. DAVIS ET AL. v. PROPERTY OWNERS
ASSOCIATION AT MOODUS LAKE
SHORES, INC., ET AL.
(AC 39163)
DiPentima, C. J., and Keller and Elgo, Js.
Syllabus
The plaintiff homeowners sought a declaratory judgment to determine, inter
alia, that they had an easement by implication over certain real property
of the defendants, a property owners association and certain of its
officers. The plaintiffs, whose real property abutted a portion of the
association’s property, claimed that the only means of access from their
property to a certain public road was via a driveway over a portion of the
association’s property. The trial court summarily denied the plaintiffs’
motions in limine to preclude testimony by certain of the defendants’
expert witnesses and, following a trial to the court, rendered judgment
for the defendants, from which the plaintiffs appealed to this court. Held:
1. The trial court did not abuse its discretion in denying the plaintiff’s motions
in limine, which sought to preclude the testimony of the defendant’s
experts, H, a surveyor, and D, a photogrammetrist, on the ground that
they were disclosed too late; the plaintiffs, who received notice that the
defendants planned to call a surveyor ten months before trial and that
the defendants planned to present the testimony of a photogrammetrist
nine months before trial, failed to demonstrate that the lengthy delay
between the time of disclosure and the time when trial resumed did
not afford them an ample opportunity to rebut the testimony at issue, as
the lengthy delay gave them ample opportunity to mitigate any purported
harm caused by the timing of the defendants’ disclosure in that the
plaintiffs were able to depose the defendants’ experts and to consult
their own expert in order to present rebuttal evidence, and the plaintiffs
never alerted the court that they needed an additional continuance for
the purposes of rebutting the untimely disclosed evidence, did not renew
their objection when the defendants’ experts testified and, in fact, stipu-
lated to the admissions of D’s photogrammetric analysis and H’s compos-
ite map.
2. The plaintiffs’ claim that the trial court improperly failed to find that
they had an easement by implication over the defendants’ property was
unavailing; the trial court having thoroughly addressed the issues raised
by the plaintiffs with respect to this claim in a thorough and well rea-
soned memorandum of decision, this court adopted the trial court’s
memorandum of decision as a proper statement of the facts and the
applicable law on those issues.
Argued April 17—officially released July 24, 2018
Procedural History
Action for, inter alia, a judgment declaring that the
plaintiffs have an easement over certain of the named
defendant’s real property, and for other relief, brought
to the Superior Court in the judicial district of Middle-
sex, where the court, Aurigemma, J., granted the defen-
dants’ motion for a nonsuit as to certain counts of the
complaint; thereafter, the matter was tried to the court,
Domnarski, J.; subsequently, the court denied the plain-
tiffs’ motions to preclude certain evidence; judgment
for the defendants, from which the plaintiffs appealed
to this court. Affirmed.
Scott W. Jezek, with whom, on the brief, was Deborah
L. Barbi, for the appellants (plaintiffs).
Troy A. Bataille, for the appellees (defendants).
Opinion
KELLER, J. The plaintiffs, Kirk B. Davis and Elyssa
J. Davis, appeal from the judgment of the trial court in
favor of the defendant Property Owners Association at
Moodus Lake Shores, Inc.1 The plaintiffs claim on
appeal that the court erred by (1) denying their motions
in limine seeking to preclude the defendants’ experts
from testifying and (2) not finding that the plaintiffs
had an easement by implication over the defendants’
property. We affirm the judgment of the trial court.
On January 19, 2012, the plaintiffs commenced a ten
count action against the defendants seeking to quiet
title on a parcel of land, a declaratory judgment for an
easement, and monetary damages for tortious conduct.
In the first count of the complaint, the plaintiffs sought
a declaratory judgment establishing an easement over
the association’s property. In support, the plaintiffs
alleged the following: In 2003, the plaintiffs purchased
a ‘‘certain . . . parcel of land, with the buildings and
other improvements thereon, known as 38 Hilltop Road,
Moodus’’; the association is ‘‘the incorporated associa-
tion of owners of land at Moodus Lake Shores, charged
with the responsibility of maintenance as a residential
resort area’’; the plaintiffs are members of the associa-
tion; the association owns the parcel of land abutting
the eastern edge of the plaintiffs’ property; Alan B.
Collette is a member of the board of directors and the
current president of the association; Donald Sama is a
member of the board of directors for the association;
Gail Sama is a member of the board of directors of the
association and the current secretary; since 1962, the
only means of access to a public road from the plaintiffs’
property is by crossing over the northwest corner of
the association’s parcel; between 1962 and 2007, the
plaintiffs’ and their predecessors had ‘‘unfettered
access and egress’’ from their property to Hilltop Road
via a driveway over the northwest corner of the associa-
tion’s lot; in 2007, the defendants installed wheel stops
on the association’s parcel, affecting the plaintiffs’
access to their property; in 2009, the wheel stops were
removed and the plaintiffs installed a planter ‘‘on or
near the boundary line’’ of the association’s and the
plaintiffs’ properties; in August, 2010, the defendants
removed the planter and built a fence that substantially
blocked the plaintiffs’ ability to gain access to their
property; in November, 2011, the defendants extended
the fence, completely blocking off the plaintiffs’ access
and entrapping their vehicles, leading to police involve-
ment on multiple occasions; the plaintiffs no longer
have a practical method of reaching a public road; and
the defendants no longer acknowledge that the plain-
tiffs have an easement over the association’s property.
In the second count, the plaintiffs sought a judgment
quieting title to a northwestern portion of the associa-
tion’s parcel pursuant to General Statutes § 47-21.2 In
count three, the plaintiffs claimed that an easement
by implication3 over that northwestern portion of the
association’s property is reasonably necessary for the
plaintiffs in order for the plaintiffs to have access to a
public road. In the fourth count, the plaintiffs claimed
an easement by prescription over the same portion of
the association’s lot.
In the fifth count, the plaintiffs alleged that the defen-
dants have ‘‘maliciously erected fences, barriers or
other structures blocking the access and egress rights
of the plaintiffs, and trapping their motor vehicles inside
of said fences and barriers . . . .’’ In addition, the plain-
tiffs alleged that the fences ‘‘have no purposes and/or
are useless to the defendants,’’ and have impaired the
value of the plaintiffs’ property and diminished the
plaintiffs’ enjoyment of it. The plaintiffs sought relief
pursuant to General Statutes §§ 52-5704 and 52-480.’’5
In counts six through nine, the plaintiffs brought
causes of action seeking monetary damages from the
defendants. In count six, the plaintiffs claimed that the
defendants were liable for the intentional infliction of
emotional distress for their conduct toward the plain-
tiffs associated with the construction and alterations
to the fence. In count seven, the plaintiffs alleged that
the defendants, by constructing the fence, created an
unreasonable risk of physical and emotional harm. In
the eighth count, the plaintiffs alleged that the defen-
dants’ use of their property amounted to a private nui-
sance. In the ninth count, the plaintiffs alleged that the
defendants were liable for civil conspiracy for having
performed the unlawful acts described in counts six,
seven, and eight.
In the tenth count, the plaintiffs sought to remove
Collette, Donald Sama, and Gail Sama as directors of
the association. In support of this count, the plaintiffs
stated, among other things, that Collette, Donald Sama,
and Gail Sama breached their fiduciary duty to the
association by ignoring valid votes of the board of direc-
tors/members, failing to provide full details of board
actions and meeting minutes to members, taking unau-
thorized actions, eliminating the bidding process for
roadwork contracts, ‘‘making or breaking rules as they
deem fit,’’ removing other board members, and ‘‘treating
the [association] as their own personal fiefdom by ignor-
ing votes, ignoring budgets, and holding secret or illegal
meetings . . . .’’6
The defendants answered on November 20, 2012, and
denied the plaintiffs’ claims. In addition, the defendants
raised nine special defenses. Specific to the plaintiffs’
easement by implication claim, the defendants asserted
that the plaintiffs ‘‘could and can’’ access their property
without crossing over the association’s property.
On June 25, 2014, the defendants filed a motion for
nonsuit pursuant to Practice Book §§ 13-14 and 17-31.
The defendants argued that, despite court orders to do
so, the plaintiffs had not provided evidence to support
their causes of action seeking damages for personal
injuries and emotional distress. The plaintiffs did not
respond to this motion. On September 2, 2015, the court,
Aurigemma, J., granted this motion for nonsuit on
counts six through nine, and the portion of count five
seeking monetary damages. See footnote 6 of this
opinion.
Following a bench trial, the court found the following
facts. The plaintiffs purchased their lakefront property
in 1998; at this time, there was a small seasonal house
on the property. The association’s property, which is
comprised of a parking lot and a beach area, abuts the
eastern edge of the plaintiffs’ property. Hilltop Road
runs along the northern edge of the plaintiffs’ property.
When the plaintiffs’ predecessors in interest, Joseph
A. Querion and Frances B. Querion, purchased the par-
cel that now comprises a majority of the plaintiffs’ prop-
erty, it could be accessed only by foot. In order to gain
vehicle access to the lot, the Querions purchased a
parcel of land from the defendants’ predecessors in
interest. The ‘‘deed for the land acquired by the Queri-
ons, to be used to access their property, did not contain
any grant of easement to use the adjoining land of the
association for purposes of ingress and egress. . . .
Furthermore, there are no later deeds or grants in the
chains of title for the plaintiffs’ or [association’s] prop-
erty that establish a right-of-way or easement over the
defendants’ property in favor of the plaintiffs.’’ ‘‘A drive-
way was constructed in 1966, which involved the
removal of [a] ledge in the vicinity of Hilltop Road. To
prevent erosion of the driveway, an erosion wall [made]
of rocks was constructed in the vicinity of the thirty-
five foot long common boundary [between the plaintiffs’
and defendants’ property].’’ This erosion wall was con-
structed entirely on the plaintiffs’ property. As this ero-
sion wall was sited between the historical driveway and
the association’s property, ‘‘the historical location of
the subject driveway was entirely on the plaintiffs’ prop-
erty, and no portion was located on the [associa-
tion’s] property.’’
In 2003, the plaintiffs renovated their property. The
plaintiffs extensively remodeled their house to convert
it into a larger, year-round residence. In addition, the
plaintiffs made alterations to the slope of their property
and constructed a new driveway. The regrading efforts
eliminated a two foot ledge between the plaintiffs’ and
the association’s properties. A portion of the new drive-
way encroached on the association’s property.
The renovations to the plaintiffs’ property made it
possible for vehicles to travel from the new driveway
to the ‘‘vicinity of stairs on the [association’s] property,
which provided access to the beach. Between 2006 and
2011, the parties discussed the issue of the plaintiffs’
new driveway and the stairs. Several arrangements for
protecting the safety of people using the stairs [were
put in place by both parties], including a curb stop, a
large planter, and a short barricade style fence. None of
these arrangements produced long-lasting results that
were acceptable to both parties. In September, 2011
. . . Collette, president of the . . . association, con-
sulted an attorney about the rights and obligations of
the association regarding the safety of members using
the beach area . . . . In a letter to Collette, dated Sep-
tember 20, 2011, the attorney [wrote]: ‘[T]he [a]ssocia-
tion is within its legal rights and authority to act in
connection with the use of its property by any party.
. . . [T]he [a]ssociation is required to act in connection
with the safety and protection of its members. . . .
[F]ailure [to] act may result in a liability claim against
the [a]ssociation. . . . Further, failure of the [a]ssocia-
tion to assert its rights may result in a future claim of
easement by extended use.’ ’’ After receiving this letter,
the association installed a fence along the common
boundary.
The court ruled in favor of the defendants on all
remaining counts. This appeal followed. Additional
facts will be set forth as necessary.
I
The plaintiffs claim that the court erred by denying
their motions in limine seeking to preclude two of the
defendants’ expert witnesses, John L. Heagle, a sur-
veyor, and Edward A. Dilport, a photogrammetrist,7
from testifying at trial. The plaintiffs’ main assertion is
that these experts should not have been allowed to
testify because they were disclosed too late.8 The defen-
dants argue that the plaintiffs were not prejudiced
because they had sufficient time to prepare before the
experts testified and had a chance to present rebuttal
evidence. We agree with the defendants.
The following additional facts are relevant to this
claim. On November 14, 2014, the plaintiffs filed a pro-
posed scheduling order, which the court accepted. This
order required the defendants to disclose their wit-
nesses by April 1, 2014. Trial commenced on November
12, 2014, and continued on November 13, 18 and 19,
2014. The plaintiffs provided the defendants with an
overlay map created by their expert, Ronald C. Hurlburt,
a surveyor, as the trial commenced. After a discussion
with the parties in a chambers conference, the court
offered the defendants time to review this map and
consult an expert of their own. The defendants dis-
closed that they planned to present the testimony of
Heagle, a land surveyor, on December 2, 2014. In
response, on January, 16, 2015, the plaintiffs requested
a continuance, seeking more time to investigate the
content of Heagle’s proposed testimony, which the
court granted. The trial resumed on September 15, 16
and 17, 2015.
On December 2, 2014, the defendants disclosed
Heagle, a land surveyor and civil engineer, as an expert
witness. Heagle was expected to testify about ‘‘the
boundary issues and questions relevant to [the present
case] and, specifically, including the location and evi-
dence pertaining to the easement or right-of-way at
issue.’’ On January 20, 2015, the defendants again filed
a motion to disclose Heagle as an expert witness, essen-
tially listing the same expected testimony.
On January 20, 2015, the defendants disclosed Lemuel
G. Johnson, Jr., a photogrammetrist, as an expert. The
defendants disclosed that Johnson was ‘‘expected to
testify concerning aerial photographs taken of the prop-
erty in 2001, which . . . are maintained in the ordinary
course of Golden Aerial Survey’s9 business and con-
tained in its photographic inventory not expressly for
the purpose of this litigation. In addition, [Johnson] is
expected to testify concerning digital photogrammetric
elevation measurements taken from the 2001 aerial pho-
tography of the subject site as depicted on the photo-
grammetric map of the subject area. . . . Finally,
[Johnson] is expected to testify concerning the contents
of [the] photogrammetric map of the subject area on
[Hilltop Road] . . . .’’ (Footnote added.)
Due to concerns about Johnson’s health, on June 4,
2015, the defendants filed a motion to disclose Dilport,
another photogrammetrist and employee of Golden
Aerial Surveys, Inc. The listed subject matter of Dil-
port’s expected testimony was, in substance, the same
as the proposed subject matter of Johnson’s testimony.
Specifically, the defendants disclosed that Dilport was
expected to testify about the location of the historic
driveway by analyzing aerial photographs taken in 2001.
The plaintiffs deposed Heagle once on December 3,
2014, and, again, on February 11, 2015. The plaintiffs
deposed Dilport on July 2, 2015. On September 4, 2015,
the plaintiffs disclosed Terry LeRoux, a photogramme-
trist, as an expert witness. The plaintiffs stated that
LeRoux would be a rebuttal witness and was expected
to testify about high resolution photographs and ana-
glyphs10 of the site.
On September 11, 2015, the plaintiffs filed motions
in limine to preclude the testimony of Heagle and Dil-
port. The plaintiffs premised their arguments in support
of these motions on the fact that Dilport and Heagle
were disclosed late, and that it would be prejudicial
to allow them to testify because there would not be
sufficient time to prepare for their testimony. They
asserted that the late disclosure was particularly harm-
ful with respect to Dilport because the January 20, 2015
disclosure was the first time that the defendants had
mentioned that a photogrammetrist would testify. The
plaintiffs noted that the scheduling order accepted by
the court required the parties to disclose expert wit-
nesses by April 1, 2014. In addition, they argued that
Practice Book § 13-4 prohibits the late disclosure of
experts. The defendants did not file a motion in opposi-
tion to the plaintiffs’ motions in limine. The court sum-
marily denied the plaintiffs’ motions, without prejudice,
and trial resumed on September 15, 2015.11
Johnson and Dilport both testified at trial. After John-
son and Dilport testified, the plaintiffs presented the
testimony of LeRoux in rebuttal. The court found John-
son and Dilport to be credible and relied on their opin-
ions in making factual findings. The court noted that
LeRoux’ testimony ‘‘generally agreed with Dilport’s tes-
timony and opinions.’’ The court found, however, that
LeRoux’ lack of ‘‘any control point data . . . dimin-
ished the weight of his testimony.’’
We begin by setting forth the standard of review and
principles of law pertinent to this claim. ‘‘[T]he motion
in limine . . . has generally been used in Connecticut
courts to invoke a trial judge’s inherent discretionary
powers to control proceedings, exclude evidence, and
prevent occurrences that might unnecessarily prejudice
the right of any party to a fair trial. . . . The trial court’s
ruling on evidentiary matters will be overturned only
upon a showing of a clear abuse of the court’s discre-
tion. . . . We will make every reasonable presumption
in favor of upholding the trial court’s ruling, and only
upset it for a manifest abuse of discretion. . . . [Thus,
our] review of such rulings is limited to the questions
of whether the trial court correctly applied the law and
reasonably could have reached the conclusion that it
did.’’ (Citation omitted; internal quotation marks omit-
ted.) McBurney v. Paquin, 302 Conn. 359, 378, 28 A.3d
272 (2011).
Practice Book § 13-4 (h) provides: ‘‘A judicial author-
ity may, after a hearing, impose sanctions on a party
for failure to comply with the requirements of this sec-
tion. An order precluding the testimony of an expert
witness may be entered only upon a finding that: (1)
the sanction of preclusion, including any consequence
thereof on the sanctioned party’s ability to prosecute
or to defend the case, is proportional to the noncompli-
ance at issue, and (2) the noncompliance at issue cannot
adequately be addressed by a less severe sanction or
combination of sanctions.’’ The plaintiffs argue that
they were denied a fair trial because the defendants
disclosed Heager and Dilport too late.12 The plaintiffs
assert that the defendants, by disclosing these experts
in the manner in which they did, engaged in the ‘‘cat
and mouse game’’ that timely disclosure is meant to
prevent. See Pool v. Bell, 209 Conn. 536, 541, 551 A.2d
1254 (1989). In Pool, our Supreme Court decided that
a trial court’s decision to preclude an expert witness
from testifying when a party elected to disclose that
witness only three weeks prior to the start of trial,
having consulted with that expert for more than one
year and having received a court order to disclose
experts during that time, was not an abuse of discretion
on the basis of the facts of that case. Id., 540–42. The
present case does not contain the same facts that sup-
ported affirming the preclusion of the untimely dis-
closed expert in Pool. In the present case, the plaintiffs
received notice that the defendants planned to call a
surveyor ten months before trial resumed and that the
defendants planned to present the testimony of a pho-
togrammetrist nine months before trial resumed. Unlike
Pool, the plaintiffs in the present case have failed to
demonstrate that the lengthy delay between the time
of disclosure and the time when trial resumed did not
afford them an ample opportunity to rebut the testi-
mony at issue. This lengthy delay gave the plaintiffs
ample opportunity to mitigate any purported harm
caused by the timing of the defendants’ disclosure.
Indeed, the record reveals that the plaintiffs took advan-
tage of this opportunity to do so. The plaintiffs were
able to depose the defendants’ experts and they were
also able to consult their own expert in order to present
rebuttal evidence.
The defendants correctly assert that the plaintiffs
could have sought a continuance to seek more time to
prepare for trial. ‘‘A continuance is ordinarily the proper
method for dealing with a late disclosure. . . . A con-
tinuance serves to minimize the possibly prejudicial
effect of a late disclosure and absent such a request
by the party claiming to have been thus prejudiced,
appellate review of a late disclosure claim is not war-
ranted.’’ (Citations omitted; internal quotation marks
omitted.) Rullo v. General Motors Corp., 208 Conn. 74,
79, 543 A.2d 279 (1988). If the plaintiffs believed that
they needed additional time, instead of filing motions
in limine on the ground that disclosure was untimely,
or after those motions were denied, the plaintiffs could
have asked the court for more time to prepare for trial.
Regardless, they cannot persuade us that the court
abused its discretion by allowing Heagle and Dilport to
testify on the ground that the defendants disclosed
these witnesses late, when they never alerted the court
that they needed an additional continuance for the pur-
poses of rebutting the untimely disclosed evidence.
Also, although invited by the court, the plaintiffs never
renewed their objection when the defendants’ experts
testified and in fact stipulated to the admissions of
Dilport’s photogrammetric analysis and Heagle’s com-
posite map.
Thus, the court did not abuse its discretion by denying
the plaintiffs’ motions in limine seeking to preclude the
testimony of Heagle and Dilport because by the time
that those motions were presented to the court, which
was just before the trial was set to resume, the plaintiffs
could not demonstrate how they were prejudiced.
II
The plaintiffs’ second claim is that the court erred
by not granting them an easement by implication. After
examining the record and the briefs and considering
the arguments of the parties, we are persuaded that
the court correctly rendered judgment in favor of the
defendants. The issues raised by the plaintiffs in this
claim were resolved properly in the trial court’s thor-
ough and well reasoned memorandum of decision. We
therefore adopt the memorandum of decision as the
proper statement of the relevant facts, issues and appli-
cable law with respect to this issue only. Davis v. Prop-
erty Owners Association at Moodus Lake Shores, Inc.,
Superior Court, judicial district of Middlesex, Docket
No. CV-XX-XXXXXXX-S (February 24, 2016) (reprinted at
183 Conn. App. 704). It would serve no useful purpose
for us to repeat the discussion contained therein. See
Seminole Realty, LLC v. Sekretaev, 162 Conn. App. 167,
169, 131 A.3d 753 (2015), cert. denied, 320 Conn. 922,
132 A.3d 1095 (2016).
The judgment is affirmed.
In this opinion the other judges concurred.
1
Alan B. Collette, Donald Sama, and Gail Sama also are defendants in
this case. The Property Owners Association at Moodus Lake Shores, Inc.,
individually, will be referred to as the association. The term defendants will
refer to Collette, the Samas and the association, collectively.
2
General Statutes § 47-21 provides: ‘‘Any conveyance or lease, for any
term, of any building, land or tenement, of which the grantor or lessor is
ousted by the entry and possession of another, unless made to the person
in actual possession, shall be void.’’
3
‘‘[A]n implied easement is typically found when land in one ownership
is divided into separately owned parts by a conveyance, and at the time of
the conveyance a permanent servitude exists as to one part of the property
in favor of another which servitude is reasonably necessary for the fair
enjoyment of the latter property. . . . In the absence of common ownership
. . . an easement by implication may arise based on the actions of adjoining
property owners. . . . There are two principal factors to be examined in
determining whether an easement by implication has arisen: (1) the intention
of the parties; and (2) whether the easement is reasonably necessary for
the use and normal enjoyment of the dominant estate.’’ (Internal quotation
marks omitted.) Sanders v. Dias, 108 Conn. App. 283, 288, 947 A.2d 1026(2008).
4
General Statutes § 52-570 provides: ‘‘An action may be maintained by
the proprietor of any land against the owner or lessee of land adjacent, who
maliciously erects any structure thereon, with intent to annoy or injure the
plaintiff in his use or disposition of his land.’’
5
General Statutes § 52-480 provides: ‘‘An injunction may be granted against
the malicious erection, by or with the consent of an owner, lessee or person
entitled to the possession of land, of any structure upon it, intended to
annoy and injure any owner or lessee of adjacent land in respect to his use
or disposition of the same.’’
6
Only the court’s decision on the plaintiffs’ easement by implication allega-
tions, the third count of their complaint, is at issue on appeal.
7
A dictionary defines photogrammetry as the ‘‘science of making reliable
measurements by the use of usu[ally] aerial photographs in surveying and
map making.’’ Webster’s New International Dictionary (3d Ed. 2002). A
photogrammetrist is ‘‘a specialist in photogrammetry.’’ Id.
8
The defendants argue that the plaintiffs, by not objecting during the
evidentiary portion of the trial, waived their claim that Dilport and Heagle
should have been precluded from testifying. This assertion, however, is
incorrect because, prior to the defendants’ having presented the testimony
of Dilport, the plaintiffs renewed their objection, stating: ‘‘[F]or the record,
we had filed two motions in limine with respect to the disclosure of two
expert witnesses by the defendant[s], [Heagle and Dilport], the essence of
both being that they were untimely.’’
9
Johnson, at the time the motion to disclose was filed, was an employee
of Golden Aerial Surveys, Inc.
10
A dictionary defines anaglyph as ‘‘a stereoscopic motion or still picture
in which the right component of a composite image usu[ally] red in color
is superimposed upon the left component in a contrasting color (as bluish
green) to produce a three-dimensional effect when viewed through corres-
pondingly colored filters in the form of spectacles.’’ Webster’s New Interna-
tional Dictionary (3d Ed. 2002).
11
The court instructed the plaintiffs that it would reconsider their objec-
tion when the defendants’ experts testified. At trial, the plaintiffs did not
object when Heagle and Dilport testified, and they stipulated to the admis-
sions of Dilport’s photogrammetric analysis and Heagle’s composite map.
12
The plaintiffs also argue that they were especially prejudiced by Heagle
and Dilport testifying because the court relied on their testimony in making
findings favorable to the defendants. The issue on appeal, however, is
whether the court erred by allowing Heagle and Dilport to testify by evaluat-
ing whether the plaintiffs had sufficient time to prepare for trial. The credibil-
ity of Heagle and Dilport does not factor into this determination. The inquiry
as to whether the testimony provided by Heagle and Dilport was credible
would only be relevant to determine if it was erroneous to allow them to
testify, and, if so, was the harm caused by that error of such magnitude to
warrant reversal.