FLAGSTONE DEVELOPMENT, LLC, an Arizona limited liability company; LAWRENCE A. HEATH v. Wayne Joyner

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLAGSTONE DEVELOPMENT, LLC, an
Arizona limited liability company;
LAWRENCE A. HEATH,
Plaintiffs-Appellants,
v.
WAYNE JOYNER; JUSTIN JOYNER, as
individuals; ROCKY MOUNTAIN
TIMBERLANDS, LLC, a Montana
corporation,
Defendants-Appellees.
No. 18-35240
D.C. No. 1:08-cv-00100-SEH
MEMORANDUM*
FLAGSTONE DEVELOPMENT, LLC, an
Arizona limited liability company;
LAWRENCE A. HEATH,
Plaintiffs-Appellees,
v.
WAYNE JOYNER; JUSTIN JOYNER, as
individuals,
Defendants,
and
No. 18-35246
D.C. No. 1:08-cv-00100-SEH
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
DEC 9 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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ROCKY MOUNTAIN TIMBERLANDS,
LLC, a Montana corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted November 7, 2019
Seattle, Washington
Before: GOULD and NGUYEN, Circuit Judges, and PRESNELL,** District
Judge.
Flagstone Development, LLC and Lawrence A. Heath (collectively,
“Flagstone”) appeal from the district court’s dismissal of Flagstone’s tort claims,
exclusion of Flagstone’s expert witnesses, and grant of summary judgment in favor
of Rocky Mountain Timberlands, LLC (“RMT”). RMT conditionally cross-
appeals from the district court’s denial of its motion for a new trial. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm in part and dismiss in part.
1. Flagstone waived its right to appeal the dismissal of its tort claims by
failing to do so when the case was first appealed to this court, 545 F. App’x 602
(9th Cir. 2013) (“Flagstone I”). Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir.
** The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.

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1999) (“[O]n appeal, arguments not raised by a party in its opening brief are
deemed waived.”). The tort claims were at issue in Flagstone I because the district
court had entered final judgment for RMT and the Joyners. Moreover, we
expressly remanded only “on the issue of breach of contract.”
2. The district court did not abuse its discretion by excluding the testimony
of Sheryl Sacry and James Foley. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141–
42 (1997). The district court properly excluded Sacry’s testimony under Federal
Rule of Evidence 702 because, like Dale Grabois’ excluded testimony in Flagstone
I, it was based on data with undisclosed methods and unknown reliability, and
Sacry offered no independent basis for her calculations. The district court also
properly excluded Foley’s testimony pursuant to Rule 702. His report was based
on materials—provided in large part by Heath—with undisclosed methods and
principles. Further, his report addressed only project feasibility and thus was not
relevant to the calculation of lost profits.
3. The district court did not err by granting summary judgment in favor of
RMT. See Rearden LLC v. Rearden Commerce, Inc., 683 F.3d 1190, 1202 (9th
Cir. 2012). Of the eighteen documents that Flagstone offered as evidence of lost
profits, only two—Flagstone’s Investment Prospectus and RMT’s cash flow
analysis—are relevant to the calculation of lost profits. Even if the two documents

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were reliable,1 they are not self-explanatory; no reasonable jury could rely on the
documents, which use technical and specialized terminology, to make a reasonable
calculation of lost profits without an expert to guide it. See West v. State Farm
Fire & Cas. Co., 868 F.2d 348, 351 (9th Cir. 1989) (citing McKenzie v. Lamb, 738
F.2d 1005, 1008 (9th Cir. 1984)) (“[S]ummary judgment is proper if no reasonable
jury could differ.”).
4. In light of our disposition of Flagstone’s appeal, RMT’s cross-appeal is
moot. We therefore dismiss it.
The orders and judgment of the district court are AFFIRMED. RMT’s
cross-appeal is DISMISSED as moot.
1 They are largely speculative. In Flagstone I, for example, we affirmed the
district court’s exclusion of Grabois, whose testimony relied on Flagstone’s
Investment Prospectus, on the ground that the Prospectus had been “created before
several costly development issues were uncovered.”

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