Dedeaux Util. Co. Inc. v. the City of Gulfport, Nos. 2008–CA–02105–SCT

CourtUnited States State Supreme Court of Mississippi
Writing for the CourtWest Codenotes
Citation63 So.3d 514
PartiesDEDEAUX UTILITY COMPANY, INC. and Any and All Parties Having or Claiming Any Legal or Equitable Interest in the Property Described Thereinv.The CITY OF GULFPORT, Mississippi, a Municipal Corporation.Dedeaux Utility Company, Inc.v.The City of Gulfport, Mississippi, a Municipal Corporation.
Decision Date30 June 2011
Docket Number2010–CA–00290–SCT.,Nos. 2008–CA–02105–SCT

63 So.3d 514

DEDEAUX UTILITY COMPANY, INC. and Any and All Parties Having or Claiming Any Legal or Equitable Interest in the Property Described Therein
v.
The CITY OF GULFPORT, Mississippi, a Municipal Corporation.Dedeaux Utility Company, Inc.
v.
The City of Gulfport, Mississippi, a Municipal Corporation.

Nos. 2008–CA–02105–SCT

2010–CA–00290–SCT.

Supreme Court of Mississippi.

April 7, 2011.Rehearing Denied June 30, 2011.


West CodenotesUnconstitutional as AppliedWest's A.M.C. § 11–27–19

[63 So.3d 518]

Peter C. Abide, Biloxi, Harry R. Allen, Michael Clark McCabe, Jr., Gulfport, James H. Herring, Canton, attorneys for appellants.Gary White, Gulfport, attorney for appellee.Before CARLSON, P.J., RANDOLPH and KITCHENS, JJ.RANDOLPH, Justice, for the Court:

¶ 1. In 1996, the City of Gulfport, Mississippi (“Gulfport”) filed a complaint of eminent domain against Dedeaux Utility Company (“Dedeaux”), a privately-owned, public utility company, in the Special Court of Eminent Domain, Harrison County, Mississippi, First Judicial District. For the following eight years, Dedeaux continued to operate the utility. A physical taking did not occur until December 20, 2004, after a jury in the Special Court of Eminent Domain, Harrison County, Mississippi, Second Judicial District, awarded Dedeaux $3,634,757 for the taking. Dedeaux appealed and Gulfport cross-appealed. See Dedeaux Utility Co., Inc. v. City of Gulfport, 938 So.2d 838, 840 (Miss.2006) (“ Dedeaux I ”). In September 2006, this Court reversed and remanded for a new trial. See id. at 846. On retrial, the jury awarded Dedeaux $5,131,676 for the taking. Following the trial court's denial of post-trial motions by both parties, Dedeaux filed notice of appeal and Gulfport filed notice of cross-appeal.

FACTS

¶ 2. Regarding Cause No. 2008–CA–02105–SCT, Dedeaux possessed a Certificate of Public Convenience and Necessity (“Certificate”) from the Mississippi Public Service Commission (“PSC”) to provide certain water and sewer services within a 2.6–square–mile area of Harrison County. On January 2, 1994, the territory served by Dedeaux was annexed by Gulfport. On December 3, 1996, Gulfport filed a complaint of eminent domain against Dedeaux in the Special Court of Eminent Domain, First Judicial District of Harrison County. It is undisputed that the Dedeaux utility system was of high quality, well-maintained, and well-functioning at this time. For the following eight years, Dedeaux continued to operate the utility. Prior to

[63 So.3d 519]

trial, the court granted Dedeaux's “Motion for Change of Venue,” transferring the case from the First Judicial District to the Special Court of Eminent Domain, Second Judicial District of Harrison County (“trial court”). On December 13, 2004, final judgment was entered on the jury's award of $3,634,757 to Dedeaux. On December 20, 2004, Gulfport took possession of the physical assets and assumed operation of the utility. Thereafter, Dedeaux appealed and Gulfport filed a cross-appeal. See id. at 840.

¶ 3. On September 28, 2006, this Court reversed the trial court and remanded for a new trial. See id. at 846. This Court held that the trial court had erred in denying Dedeaux's motion to strike the testimony of Gulfport's expert, James Stokes. We found that the data relied upon “excludes consideration of the value of contribution property[,]” 1 which “must be included in the plant value[,]” and Stokes's testimony “was not based on sufficient facts and data and was therefore unreliable.” Dedeaux I, 938 So.2d at 841–42 (quoting Julius L. Sackman, Nichols on Eminent Domain § 15.07, at 15–48 (3d ed.2000)). Additionally, this Court held that the trial court had erred in failing to follow the directive of Mississippi Code Section 11–27–19 “when it compounded the interest [on the eminent domain judgment] and when it made a distinction between pre-judgment interest and post-judgment interest.” Dedeaux I, 938 So.2d at 846 (citing Miss.Code Ann. § 11–27–19 (Rev.2004)).

¶ 4. On September 22, 2008, the jury trial in the present case commenced. The jury awarded $5,131,676 to Dedeaux. Thereafter, Dedeaux filed a “Motion for New Trial and for Judgment Notwithstanding the Verdict” and Gulfport filed a “Motion for New Trial,” both of which were denied by the trial court. Dedeaux then filed notice of appeal and Gulfport filed notice of cross-appeal.

¶ 5. Following the trial court's denial of its “Motion to Dismiss, or, Alternatively, for Declaratory Judgment on the Issue of Contributions in Aid of Construction After December 3, 1996, and Other Matters Constituting Inverse Condemnation,” Dedeaux filed a separate action in the Chancery Court of Harrison County, Mississippi, First Judicial District, “out of an abundance of caution.” In so doing, Dedeaux sought to cover its bases and “protect this [claim] procedurally” should this Court “determine that assertion of ‘inverse condemnation’ in the eminent domain proceeding is premature since the actual inverse condemnation did not occur until final judgment” in September 2008, and “therefore would be a separate cause of action.” In January 2010, the chancery court entered an “Order” granting Gulfport's “Motion to Dismiss” that action, concluding that, under “the Doctrine of Priority of Jurisdiction,” it lacked subject-matter jurisdiction because the issues raised therein were “presently on appeal before the Mississippi Supreme Court.”

¶ 6. Following Dedeaux's appeal of that ruling, this Court consolidated the appeal

[63 So.3d 520]

in that case, Cause No. 2010–CA–00290–SCT, with the appeal in Cause No. 2008–CA–02105–SCT.2

ISSUES

¶ 7. This Court will consider: 3

I. Whether the trial court erred in admitting contested expert testimony on the valuation of a privately owned, public utility.

II. Whether the trial court erred in denying Dedeaux's request for declaratory judgment on its inverse-condemnation claim.

III. Whether the trial court erred in excluding evidence of Gulfport using a depreciated cost methodology which included the cost of overcoming existing constraints.

IV. Whether the trial court erred in prohibiting Dedeaux from cross-examining Stokes regarding his testimony at the first trial, deemed “unreliable” in Dedeaux I, and other prior related opinions.

V. Whether the trial court erred in overruling Gulfport's objection to Elliott's testimony regarding “alternatives and substitutes.”

VI. Whether the trial court erred in admitting evidence, and then erred in peremptorily instructing the jury, that the “highest and best use” of the Dedeaux utility system is as an unregulated utility.

VII. Whether the trial court erred in granting jury instructions which emphasized specific elements of damages.

VIII. Whether the trial court erred in overruling Dedeaux's objection to Gulfport's closing argument.

IX. Whether the trial court erred in denying Dedeaux's request for declaratory judgment on its equal-protection claim.

X. Whether the trial court erred in denying Gulfport's “Motion to Recover Excess Interest.”

XI. Whether the trial court erred in denying Gulfport's “Motion to Reconsider Change of Venue.”

ANALYSIS
I. Whether the trial court erred in admitting contested expert testimony on the valuation of a privately owned, public utility.

¶ 8. This Court has stated that:

“[w]hen reviewing a trial court's decision to allow or disallow evidence, including expert testimony, we apply an abuse of discretion standard.” Canadian Nat'l/Ill. Cent. R.R. v. Hall, 953 So.2d 1084, 1094 (Miss.2007). Unless this Court concludes that a trial court's decision to admit or exclude evidence was arbitrary and clearly erroneous, that decision will stand. Irby v. Travis, 935 So.2d 884, 912 (Miss.2006). Under Mississippi Rule of Evidence 702, trial courts are charged with being gatekeepers in evaluating the admissibility of expert testimony. Id. “We are confident that our learned trial judges can and will properly assume the role as gatekeeper on questions of admissibility of expert testimony.” Miss. Transp. Comm'n v. McLemore, 863 So.2d 31, 40 (Miss.2003).

[63 So.3d 521]

Watts v. Radiator Specialty Co., 990 So.2d 143, 145–46 (Miss.2008).

¶ 9. Mississippi Rule of Evidence 702 provides that:

[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. “This rule makes it necessary for a trial court to apply a two-pronged inquiry when evaluating the admissibility of expert testimony: (1) is the witness qualified, and (2) is the testimony relevant and reliable?” Watts, 990 So.2d at 146 (citing McLemore, 863 So.2d at 35).
(A) Expert Qualification

¶ 10. Dedeaux challenges whether Gulfport's experts, Dax Alexander and James Stokes, were qualified “by knowledge, skill, experience, training, or education....” 4 Miss. R. Evid. 702. The testimony of Alexander and Stokes was interrelated because Alexander provided per-unit replacement-cost estimates and useful-life estimates for the components of the Dedeaux utility system as of December 3, 1996, which were then used by Stokes in his comprehensive valuation.

Dax Alexander

¶ 11. Alexander is a Mississippi-licensed engineer and the president of an engineering firm. According to Alexander, his experience included involvement in approximately twenty major sewer projects in south Mississippi. Alexander conceded that, prior to 2007, he had never provided a replacement-cost estimate for a utility system “in a court-related setting....” After hearing Dedeaux's motion in limine to exclude Alexander's testimony, that motion was denied. At trial,...

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18 practice notes
  • Hyundai Motor Am. v. Applewhite, 2015-CA-01886-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 11, 2021
    ...parties may thus present evidence differently." White , 932 So. 2d at 33 (¶ 18) ; see also Dedeaux Util. Co. v. City of Gulfport , 63 So. 3d 514, 539 (¶ 69) (Miss. 2011). Hyundai's challenge to the merits of Webb's opinion was not properly before the Court in Applewhite I , nor is it p......
  • Ill. Cent. Gulf R.R. Co. v. Travis, No. 2011–CA–00091–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 14, 2013
    ...same case, continues to be the law of the case, so long as there is a similarity of facts.” Dedeaux Util. Co., Inc. v. City of Gulfport, 63 So.3d 514, 539 (Miss.2011) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 960 (Miss.2002) (citation omitted)). But, “if the facts a......
  • Hyundai Motor Am. v. Applewhite, NO. 2015-CA-01886-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 11, 2021
    ...may thus present evidence differently."Page 98 White, 932 So. 2d at 33 (¶ 18); see also Dedeaux Util. Co. v. City of Gulfport, 63 So. 3d 514, 539 (¶ 69) (Miss. 2011). Hyundai's challenge to the merits of Webb's opinion was not properly before the Court in Applewhite I, nor is it proper......
  • Ill. Cent. Gulf R.R. Co. v. Travis, NO. 2011-CA-00091-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 29, 2012
    ...continues to be the law of the case, so long as there is a similarity of facts." Dedeaux Util. Co., Inc. v. CityPage 7of Gulfport, 63 So. 3d 514, 539 (Miss. 2011) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So. 2d 953, 960 (Miss. 2002) (citation omitted)). But, "if the......
  • Request a trial to view additional results
18 cases
  • Hyundai Motor Am. v. Applewhite, 2015-CA-01886-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 11, 2021
    ...parties may thus present evidence differently." White , 932 So. 2d at 33 (¶ 18) ; see also Dedeaux Util. Co. v. City of Gulfport , 63 So. 3d 514, 539 (¶ 69) (Miss. 2011). Hyundai's challenge to the merits of Webb's opinion was not properly before the Court in Applewhite I , nor is it p......
  • Ill. Cent. Gulf R.R. Co. v. Travis, No. 2011–CA–00091–SCT.
    • United States
    • United States State Supreme Court of Mississippi
    • February 14, 2013
    ...same case, continues to be the law of the case, so long as there is a similarity of facts.” Dedeaux Util. Co., Inc. v. City of Gulfport, 63 So.3d 514, 539 (Miss.2011) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So.2d 953, 960 (Miss.2002) (citation omitted)). But, “if the facts a......
  • Hyundai Motor Am. v. Applewhite, NO. 2015-CA-01886-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • March 11, 2021
    ...may thus present evidence differently."Page 98 White, 932 So. 2d at 33 (¶ 18); see also Dedeaux Util. Co. v. City of Gulfport, 63 So. 3d 514, 539 (¶ 69) (Miss. 2011). Hyundai's challenge to the merits of Webb's opinion was not properly before the Court in Applewhite I, nor is it proper......
  • Ill. Cent. Gulf R.R. Co. v. Travis, NO. 2011-CA-00091-SCT
    • United States
    • United States State Supreme Court of Mississippi
    • November 29, 2012
    ...continues to be the law of the case, so long as there is a similarity of facts." Dedeaux Util. Co., Inc. v. CityPage 7of Gulfport, 63 So. 3d 514, 539 (Miss. 2011) (quoting Moeller v. Am. Guar. & Liab. Ins. Co., 812 So. 2d 953, 960 (Miss. 2002) (citation omitted)). But, "if the......
  • Request a trial to view additional results

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