Brown v. MISSISSIPPI TRANSP. COM'N

• Decision Date: 09 September 1999
• Docket Number: No. 98-CA-00455-SCT.,98-CA-00455-SCT.
• Citation: 749 So.2d 948
• Parties: Wendell L. BROWN and Hazel Brown v. MISSISSIPPI TRANSPORTATION COMMISSION.
• Court: Mississippi Supreme Court

749 So.2d 948

Wendell L. BROWN and Hazel Brown v. MISSISSIPPI TRANSPORTATION COMMISSION.

No. 98-CA-00455-SCT.

Supreme Court of Mississippi.

September 9, 1999.

Rehearing Denied December 2, 1999.

Pro se, Appellants.

Gary White, Gulfport, James B. Wright, Jr., Ocean Springs, Attorneys for Appellee.

BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.

SMITH, Justice, for the Court:

¶ 1. This case comes to this Court from the Special Court of Eminent Domain of Harrison County, in which landowners, Wendell L. and Hazel Brown, dispute the amount awarded by a jury for their property. The Browns fail to cite supporting authority concerning most of the issues raised; and therefore, we do not consider those issues. The Browns were entitled to relocation expenses but failed to follow the statutory scheme to recover those funds. We also find that the trial court erred in instructing the jury concerning the landowners' valuation testimony Instruction 6, but this was harmless error as the jury verdict of $57,365 fell between the $54,000 value of the property submitted by the Mississippi Department of Transportation's appraiser and the $61,500 value submitted by the Browns appraiser. We affirm the trial court's judgment.

FACTS

¶ 2. In order to widen U.S. Highway 49, the Mississippi Transportation Commission (hereinafter "Commission"), filed a complaint in the Harrison County Special Court of Eminent Domain to condemn the Browns property located in Harrison County. After the parties were unable to reach an agreement, the Commission sought to receive the right of immediate title and possession. On May 16, 1996, the trial court granted the right of immediate title and possession and entry upon the lands sought to be condemned. The Browns were given thirty days after the deposit of the compensation to vacate the property.

¶ 3. On the property sought were two buildings, a converted house and a storage building. Approximately one-half of the Browns converted house rested on the strip of the subject property.

¶ 4. On October 23, 1996, the Commission filed a Motion for Contempt Citation for the Browns failing to vacate the property. The Commission stated that a sum of $55,100 was deposited into the registry of the court on June 19, 1996, but the Browns failed to vacate.

¶ 5. On November 1, 1996, the Browns filed a Response to Motion for Contempt Citation. The Response alleged that the Browns had made forty-eight trips in attempting to get moved, but had run out of funds. The Browns therefore, requested either part or all of the funds deposited to be released. Further, the Browns alleged that they were entitled to 90 days to vacate.

¶ 6. On November 12, 1996, the Browns filed a Motion to Restrain the Commission from entering the property not taken and from taking a portion of the house structure not found on the property taken.

¶ 7. After a hearing, an order was entered allowing the Browns to retain title and possession of the building partially located on the condemned property. The order stated that the Browns elected to move the building rather than seek compensation from the Commission for the value of the building. It was stated that the Commission does not, nor ever had title or possession to the building. The order gave the Browns twenty-one days to remove the building, and further, the Commission was not liable to the Browns for the expense of moving the building.

¶ 8. On July 14, 1997, the Commission filed a Motion in Limine to prevent the Browns from entering any evidence to an alleged loss to a building and prevent an appraiser from testifying to the value of the property including the building. Further, the Commission wanted to prevent testimony regarding the cost incurred in relocating the building. The Browns claim that in addition to the amount of the jury verdict, they are entitled to $12,000 moving expenses and $25,000 relocation expenses.

¶ 9. On January 15, 1998, an Order Sustaining Motion in Limine was filed. On January 16, 1998, the Browns filed a Petition for Interlocutory Appeal.

¶ 10. After a trial on the matter, the jury returned a verdict fixing the Browns' compensation at $57,365, and judgment was entered accordingly. The Browns filed a Motion for Additur or in the Alternative for a New Trial which was denied. Feeling aggrieved, the Browns appeal to this Court raising the following issues:

I. WHETHER THE BROWNS WERE DENIED DUE PROCESS IN NOT BEING NOTIFIED OF THE ORIGINAL HEARING IN THIS CASE.

II. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS FROM RECOVERING MARKET VALUE OF THE HOUSE ON THE PROPERTY TAKEN, AND/OR COSTS OF MOVING THE HOUSE FROM THE PREMISES AND COSTS OF RECONNECTING THE HOUSE UTILITIES.

III. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS FROM PRESENTING TO THE JURY THE FACTS THAT THERE WAS A HOUSE ON THE PROPERTY AT THE TIME OF THE TAKING AND THAT AN ANTIQUE BUSINESS WAS BEING CONDUCTED THEREFROM.

IV. THE SPECIAL COURT OF EMINENT DOMAIN ERRED IN SUSTAINING MDOT'S MOTION IN LIMINE IN AN ORDER DATED JANUARY 20, 1998 WHICH PROHIBITED THE BROWNS FROM MENTIONING THE HOUSE.

V. THE COURT ERRED IN REFUSING TO ORDER THE MDOT TO PRODUCE ANY AND ALL DOCUMENTS REQUESTED IN THE SUBPOENA DUCES TECUM SERVED ON DONALD DAVIS, EMPLOYEE OF MISSISSIPPI DEPARTMENT OF TRANSPORTATION.

VI. THE COURT ERRED IN REFUSING TO ALLOW CROSS EXAMINATION OF PROPERTY PURPORTEDLY USED BY MDOT FOR IT APPRAISAL, THAT OF SALE OF 10/16/89, COFIELD TO CAIN IN DEED BOOK 1143, PAGE 501 WHEN IT WAS SENT TO BROWNS AS DISCOVERY AND THE FIGURES

OF THAT AND THE OTHER PROPERTY TALLY, BUT THE SUBSTITUTED PROPERTY OF WHICH NO COMPARABLE DATA SHEET WAS EVER FURNISHED DOESN'T TALLY.

VII. THE COURT ERRED IN ALLOWING MDOT TO USE THE PROPERTY SOLD BY SAWYER REAL ESTATE TO JOHN FORETICH ON 2/22/96 WHEN THE COMPARABLE DATA OF THIS PROPERTY WAS NEVER FURNISHED UNTIL THE DAY OF TRIAL IN VIOLATION OF THE COURT ORDER TO MDOT TO FURNISH SUCH DATA ON 1/20/98.

VIII. THE COURT ERRED IN REFUSING TO ALLOW ANY MENTION OF THE HOUSE LOCATED PARTIALLY ON THE PROPERTY TAKEN AND PARTIALLY ON THE PROPERTY REMAINING, ON THE DATE OF TAKING, APRIL 17, 1996.

IX. THE COURT ERRED IN REFUSING TO ALLOW APPRAISER FRED LEWIS TO TESTIFY IN REBUTTAL OF MDOT'S COMPARABLE SALES DATA # 1, WHICH WAS SOLD 3/2/95, DEED BOOK 1298 PAGE 580 WHEN LEWIS WAS FAMILIAR WITH THE PROPERTY AND WOULD OFFER PROOF THAT IT WAS NOT A COMPARABLE SALE OF PROPERTY.

X. THE COURT ERRED IN ALLOWING INTO EVIDENCE COMPARABLE SALES DATA #1.

XI. THE COURT ERRED IN REFUSING TO ALLOW EVIDENCE OF MOVING AND RELOCATION EXPENSES.

XII. THE COURT ERRED IN REFUSING TO ALLOW THE BROWNS APPRAISER, LEIS, TO TESTIFY AS TO THE EFFECT OF THE CURB BEING PLACED BY MDOT AND ITS FURTHER EFFECT ON THE AFTER VALUE OF BROWNS PROPERTY.

XIII. THE COURT ERRED IN REFUSING TO ALLOW EVIDENCE BY BROWNS OF THE PROPERTY'S UNSALABLENESS.

XIV. THE COURT ERRED IN REFUSING TO ALLOW HAZEL BROWN TO TESTIFY IN DETAIL OF HER FAMILIARITY WITH REAL ESTATE AND SIMILAR PROPERTIES.

XV. THE COURT ERRED IN REFUSING TO ALLOW WENDELL BROWN TO TESTIFY IN DETAIL OF HIS FAMILIARITY OF VARIOUS SIMILAR PROPERTIES OF WHICH HE HAD KNOWLEDGE AND ESPECIALLY ABOUT THE CONDITION OF THE PROPERTY NEXT DOOR WHICH HAD UNDERGROUND GASOLINE TANKS AND TWO BUILDINGS THAT HAD EXTENSIVE FIRE DAMAGE WHICH GREATLY REDUCED THE VALUE.

XVI. THE COURT ERRED IN RESTRICTING THE LATITUDE OF BOTH BROWNS TESTIMONY.

XVII. THE COURT ERRED IN GRANTING MDOT INSTRUCTION P-6.

XVIII. THE COURT ERRED IN ALLOWING MDOT TO CROSS EXAMINE LEWIS ABOUT HIS ORIGINAL APPRAISAL WHICH INCLUDED THE HOUSE THEREIN AND HIS AFTER VALUE OF $75,000 OF THE PROPERTY AND NOT ALLOWING AN EXPLANATION BY LEWIS WHEN IN FACT THE MDOT HAD

OPENED THE DOOR TO THE COURTS ORDER IN LIMINE THEREIN.

XIX. THE COURT ERRED IN ALLOWING SCHOOL TEACHERS, WHO ARE EITHER EMPLOYEES OF THE STATE OF MISSISSIPPI, OR PREJUDICED TO WANT MDOT TO WIN BECAUSE OF THEIR STATE PENSION PLANS, ON THE JURY.

XX. THE COURT ERRED IN NOT ORDERING THE REQUESTED ADDITUR OR IN THE ALTERNATIVE, A NEW TRIAL.

XXI. THE COURT ERRED IN SUBORNING THE PERJURIOUS TESTIMONY OF THE MDOT APPRAISER, DANIEL H. LOFLIN, AND ALLOWING THE MDOT COUNSEL, GARY WHITE TO SUBORN THE PERJURY AND OBSTRUCT JUSTICE.

LEGAL ANALYSIS

I. WHETHER THE BROWNS WERE DENIED DUE PROCESS IN NOT BEING NOTIFIED OF THE ORIGINAL HEARING IN THIS CASE.

¶ 11. The Browns contend that they were denied due process contrary to Sections 14 and 24 of Article 3 of the Mississippi Constitution and the due process clause of the fourteenth amendment to the U.S. Constitution when they were not served notice of the original hearing in this case. However, the Browns failed to present this argument to the lower court. The trial judge cannot be put in error on a matter which was not presented to him for decision. Cossitt v. Federated Guar. Mut. Ins. Co., 541 So.2d 436, 446 (Miss.1989). The Browns cite to page 2 of the record. However, there is nothing in the record to indicate that the Browns were not notified of an original hearing. Therefore, this assignment of error is without merit.

II. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS FROM RECOVERING MARKET VALUE OF THE HOUSE ON THE PROPERTY TAKEN, AND/OR COSTS OF MOVING THE HOUSE FROM THE PREMISES AND COSTS OF RECONNECTING THE HOUSE UTILITIES.

¶ 12. The Browns argue that they were entitled to compensation for the portion of the house taken and for damages to the remainder. The Browns contend that they never agreed to give up any compensation in order to move the whole house. Once the house was loaded on the house movers truck, the Browns contend that it became personal property and they were entitled to the $12,000 expense of moving the house. In the process of moving the house, the plumbing and electrical wiring had to be removed. The Browns contend that the costs of rewiring and replumbing the house and constructing the steps should be paid to them under the Mississippi Relocation Assistance Law Miss.Code Ann. §§...