Arkansas State Highway Com'n v. Frisby, 96-1360
| Decision Date | 18 September 1997 |
| Docket Number | No. 96-1360,96-1360 |
| Citation | 951 S.W.2d 305,329 Ark. 506 |
| Parties | ARKANSAS STATE HIGHWAY COMMISSION, Appellant, v. Raymond L. FRISBY and Virginia H. Frisby, Appellees. |
| Court | Arkansas Supreme Court |
Robert L. Wilson, Barbara A. Griffin, Maria L. Schenetzke, Lawrence W. Jackson, Little Rock, for Appellant.
William I. Prewett, El Dorado, for Appellee.
This is an eminent domain case. For the purpose of widening U.S. Highway 167 from two to four lanes in Union County, the Arkansas State Highway Commission ("the Commission") condemned the .97 acres constituting the highway frontage of a 6.3-acre tract of land belonging to Raymond L. and Virginia H. Frisby. With its condemnation complaint, the Commission deposited $57,550 into the registry of the Circuit Court as compensation. The Frisbys requested a jury trial to determine the value of the land. A judgment, based on a jury determination, awarded the Frisbys $86,050. The Commission has appealed, arguing that the Frisbys failed to update discovery responses with respect to the proposed testimony of their expert appraiser. We agree that the Commission was entitled to have an updated response and that the two-hour continuance granted by the Trial Court on the day of trial was inadequate to remedy the problem. We also agree that the testimony of Raymond L. Frisby should have been stricken and that the Frisbys' expert gave improper evidence concerning comparable sales. The judgment is thus reversed and remanded.
As we said in Arkansas State Highway Comm'n v. Barker, 326 Ark. 403, 405, 931 S.W.2d 138, 140 (1996),
The 6.3-acre tract owned by the Frisbys was the site of a truck stop composed of a service station, store, and restaurant. The Commission requested that it be supplied with information forming the basis of expert testimony to be presented by the Frisbys. In response, the Frisbys furnished a "preliminary report" compiled by Ron Robinson, the expert who was to testify. The Commission thereafter took Mr. Robinson's deposition in which he was examined with respect to his preliminary-report conclusion, applying the before-and-after value rule, that the 6.3 acres was worth either $113,000 or $117,000 prior to the taking. One figure was based on the "cost" method, and the other on the "income capitalization" method of evaluating the before and after values.
At the trial, Mr. Robinson gave his pre-taking evaluation as $158,000 and the value of the property remaining as $32,000. During cross-examination of Mr. Robinson, counsel for the Commission noted that Mr. Robinson was testifying from a document labeled "final report" containing facts and figures which had not been furnished to the Commission. Mr. Robinson discussed comparable sales, of which Commission counsel were unaware, in the process of establishing his opinion as to the value of the Frisbys' land before and after the taking.
Counsel for the Commission informed the Trial Court that, in view of the fact that the report as to which Mr. Robinson had been deposed was labeled "preliminary," she had, by letter, asked the Frisbys' counsel to supply any additional reports to be made. She also informed the Trial Court that the Frisbys' counsel had responded in a letter stating that there would be no further reports and that the deposition testimony would be sufficient. The Frisbys' counsel did not contest those remarks by the Commission's counsel.
Although there was a reference to a mistrial, counsel for the Commission moved, in lieu thereof, for a continuance sufficient to allow investigation of the new information. Counsel for the Frisbys said that he was not introducing Mr. Robinson's final report, which he too had received the day of the trial, into evidence and that it should be sufficient to allow counsel for the Commission to cross-examine Mr. Robinson with respect to his testimony.
The Trial Court granted a two-hour continuance, which amounted to an extended lunch break, to allow Commission counsel to examine Mr....
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