Adcock v. Mississippi Transp. Com'n, No. 2007-CA-00078-SCT.

• Decision Date: 20 March 2008
• Docket Number: No. 2007-CA-00078-SCT.
• Citation: 981 So.2d 942
• Parties: Robert D. ADCOCK and Shirley Dean Adcock v. MISSISSIPPI TRANSPORTATION COMMISSION.
• Court: Mississippi Supreme Court

981 So.2d 942

Robert D. ADCOCK and Shirley Dean Adcock v. MISSISSIPPI TRANSPORTATION COMMISSION.

No. 2007-CA-00078-SCT.

Supreme Court of Mississippi.

March 20, 2008.

Rehearing Denied May 29, 2008.

James C. Mayo, Louisville, attorney for appellants.

Josh Freeman, Alan M. Purdie, Grenada, attorneys for appellee.

EN BANC.

WALLER, Presiding Justice, for the Court.

¶ 1. Aggrieved by the judgment of $17,900 awarded by the Special Court of Eminent Domain of Winston County, Mississippi, as compensation for 4.65 acres condemned by the Mississippi Transportation Commission (MTC), Robert and Shirley Adcock file this appeal. Finding that the trial court did not err in denying the Adcocks' Motion for New Trial, or in the Alternative, a Judgment Notwithstanding the Verdict, and did not abuse its discretion in allowing the expert testimony of MTC's appraiser, we affirm.

FACTS

¶ 2. The Adcocks owned 122 acres of real property in Winston County, Mississippi. Highway 25 splits the southeast corner of their 122-acre tract, leaving approximately ten acres on the eastern side of the highway. The Adcocks' home is located on the western side of the highway, and a garden lies on the eastern side. Prior to the Highway 25 expansion project, the Adcocks could drive across Highway 25 to access the ten-acre tract. Additionally, both the eastern and western portions of the property had access to Highway 25.

¶ 3. In 1998, MTC sought to expand a section of Highway 25 and filed a complaint in the Special Court of Eminent Domain seeking a 4.65-acre portion of the Adcocks' property. The expansion widened Highway 25 from two lanes to four lanes and left the Adcocks with no direct access to Highway 25.

¶ 4. On May 4, 2006, a jury trial was held in which MTC and the Adcocks presented expert appraisal testimony. MTC's appraiser, Tommy Madison, determined that the highest and best use of the property was agricultural. Madison considered the income¹, cost², and market data/comparable sales³ methods of appraisal, but ultimately applied the comparable sales method. Madison compared the sales of three properties to the Adcocks' property. All three comparison properties were located in Winston County and were chosen based on factors such as size, location, access, topography, and the time of the sales. Madison made slight adjustments to account for differences between the comparable properties and the Adcocks' property.⁴

¶ 5. Madison appraised the fair market value of the Adcocks' 122 acres in its "before" condition at $276,830. This amount was based on 122 acres valued at $1,350 per acre, which totals $164,700; plus improvements, such as structures, in the amount of $104,530, and the cost of timber in the amount of $7,600.

¶ 6. Madison appraised the "after" condition of the remaining 117 acres at $258,930. This amount was based on 117.35 acres of real property at $1,350 per acre for an estimated total of $158,400; plus improvements, such as structures, in the amount of $104,530, and a deduction of $4,000 for the cost to cure fencing. Based on these figures, Madison estimated $17,900 to be just compensation for taking the 4.65 acres.

¶ 7. Madison acknowledged that the "after" condition left the Adcocks with no access to Highway 25 from either portion of their property. However, he did not assess damages for the lack of access on the western side of the property because the Adcocks still had access to Highway 19. Likewise, Madison did not diminish the value of the remaining 6.74 acres on the eastern side of the property, since he had recently traveled to that parcel and considered it to have access, as well.

¶ 8. The Adcocks' appraiser, Larry Caraway, considered the highest and best use of the property to be both residential and agricultural. Caraway, like Madison, considered all three appraisal methods before selecting the comparable sales method as the best approach in this case. He appraised the fair market value of the Adcocks' 122 acres in its "before" condition at $301,750. This amount was based on 121 acres of real property valued at $1,750 per acre for a total of $211,750; plus one acre and the home in the amount of $75,000, and other buildings and improvements in the amount of $15,000.

¶ 9. Caraway appraised the "after" condition of the remaining 117 acres at $239,290. This amount was based on 117.35 acres of real property valued at $1,400 per acre for a total of $164,290; plus the home in the amount of $60,000, and other buildings and improvements in the amount of $15,000. Caraway then added $4,000 in damages for the cost to replace fencing. Based on these figures, Caraway estimated just compensation for taking the 4.65 acres at $66,460.

¶ 10. Caraway reduced the per-acre cost from $1,750 to $1,400 an acre because approximately 3,200 feet of frontage were lost with the condemnation. Caraway also reduced the value of the Adcocks' home from $75,000 to $60,000 based on their lack of access to Highway 25. Caraway acknowledged that the Adcocks still had access to and from their home, but said that "it wasn't near as good."

¶ 11. The jury returned a verdict in favor of the Adcocks in the amount of $17,900, and a final judgment was entered on July 17, 2006. The Adcocks filed a Motion for New Trial; or in the Alternative, a Judgment Notwithstanding the Verdict; or, in the Alternative, an Additur, which the trial court denied on December 27, 2006. The Adcocks now appeal to this Court.

DISCUSSION

I. Whether the trial court abused its discretion in allowing MTC's appraiser to testify.

¶ 12. A trial court's decision to admit expert testimony is reviewed on an abuse-of-discretion standard. Roberts v. Grafe Auto Co., 701 So.2d 1093, 1098 (Miss.1997) (citing Seal v. Miller, 605 So.2d 240, 243 (Miss.1992)).

¶ 13. The Adcocks assert that the trial court should not have allowed the testimony of MTC's expert appraiser, Tommy Madison, because his testimony was not reliable. The Adcocks charge that Madison's testimony was "purely speculative and not grounded by any rational basis."

¶ 14. To determine the admissibility of expert testimony, this Court has adopted the standard initially set out by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and later modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Webb v. Braswell, 930 So.2d 387, 397 (Miss.2006) (citing Miss. Transp. Comm'n v. McLemore, 863 So.2d 31 (Miss.2003)). Under the modified Daubert standard, the trial court must first determine whether expert testimony is relevant and, second, whether the proffered testimony is reliable. Daubert, 509 U.S. at 589, 113 S.Ct. 2786; McLemore, 863 So.2d at 38 (citing Mathis v. Exxon Corp., 302 F.3d 448, 460 (5th Cir.2002); Pipitone v. Biomatrix, Inc., 288 F.3d 239, 244 (5th Cir.2002)).

¶ 15. Relevant evidence is that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." M.R.E. 401. Rule 401 favors admission if the evidence has any probative value at all. Holladay v. Holladay, 776 So.2d 662, 676 (Miss.2000). Because Madison's testimony regarding damages and the methods he used to arrive at those amounts are relevant to an eminent domain case, we find that his testimony satisfied the first prong of the modified Daubert standard. See Daubert, 509 U.S. at 589, 113 S.Ct. 2786; McLemore, 863 So.2d at 40.

¶ 16. The party offering the expert testimony also must show that the expert's opinion is based upon scientific methods and procedures, not unsupported speculation. Id. at 36 (citing Daubert, 509 U.S. at 590, 113 S.Ct. 2786). Factors to consider may include "whether the theory or technique can be and has been tested; whether it has been subjected to peer review and publication; whether ... there is a high known or potential rate of error; whether there are standards controlling the technique's operation; and whether the theory or technique enjoys general acceptance" within the expert's particular field. McLemore, 863 So.2d. at 37 (citing Daubert, 509 U.S. at 592-94, 113 S.Ct. 2786).

¶ 17. "[F]air market value is an opinion best formed by competent persons pursuing not just one, but three separate and distinct but nevertheless interrelated, approaches to value: the cost approach, the market data or sales comparison approach, and the income approach." Potters II v. State Highway Comm'n, 608 So.2d 1227, 1231 (Miss.1992) (citing e.g., American Institute of Real Estate Appraisers, The Appraisal of Real Estate, 62-63 (9th ed.1987)). However, all three methods of valuation need not be considered in every appraisal, particularly those of non-commercial property. See Eller Media Co. v. Miss. Transp. Comm'n, 882 So.2d 198, 203 (Miss.2004) (for example, the income approach would be useless and irrelevant for the appraisal of a residence).

¶ 18. Madison considered all three approaches before applying the comparable sales method to arrive at his "before" and "after" values for the Adcocks' property. The comparable sales approach is an accepted appraisal method which provides a value estimate based "upon prices actually paid in open market transactions for various properties similar to the one at issue in the appraisal." Rebelwood, Ltd. v. Hinds County, 544 So.2d 1356, 1360-61 (Miss.1989). The comparable properties do not have to be identical in every respect. Howell v. State Highway Comm'n, 573 So.2d 754, 757 (Miss.1990) (citing Miss. State Highway Comm'n v. Franklin County Timber Co., Inc., 488 So.2d 782, 785 (Miss.1986)). To require exact similarities would make it almost impossible to find a comparable tract of land or sale. Miss. Transp. Comm'n v. Fires, 693 So.2d 917, 923 (Miss.1997) (citing Pearl River Valley Supply Dist. v. Wood, 252 Miss. 580, 172 So.2d 196 (1965)).

¶ 19. A trial judge has wide...