Eller Media v. MISS. TRANSP. COM'N

• Decision Date: 29 July 2004
• Docket Number: No. 2003-CA-01248-SCT., No. 2003-CA-01246-SCT
• Citation: 882 So.2d 198
• Parties: ELLER MEDIA COMPANY, v. MISSISSIPPI TRANSPORTATION COMMISSION.
• Court: Mississippi Supreme Court

882 So.2d 198

ELLER MEDIA COMPANY, v. MISSISSIPPI TRANSPORTATION COMMISSION.

Nos. 2003-CA-01246-SCT, 2003-CA-01248-SCT.

Supreme Court of Mississippi.

July 29, 2004.

Rehearing Denied September 30, 2004.

Mark D. Herbert, Lisa Anderson Reppeto, Jackson, attorneys for appellant.

Barry Stuart Zirulnik, Jackson, Hollaman Martin Raney, attorneys for appellee.

Before WALLER, P.J., CARLSON and DICKINSON, JJ.

DICKINSON, Justice, for the Court.

¶ 1. Eller Media Company was granted compensation for loss, through eminent domain, of its billboards and its leasehold interest in two parcels of real property in DeSoto County it leased from Entergy Service, Inc. (Entergy), and The Prudential Insurance Company (Prudential), respectively. Eller claims that the compensation awarded by the DeSoto County Special Court of Eminent Domain was inadequate and that summary judgment for the Mississippi Transportation Commission (MTC) should not have been granted. We disagree and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2. This dispute is more easily understood and resolved by first establishing a time line of relevant events:

September 1, 1994 Eller, through its predecessor-in-interest, Tanner Outdoor, entered into a lease agreement with Entergy, for the purpose of erecting two outdoor advertising sign structures upon the leased premises.

November 1, 1997 Eller, through its predecessor-in-interest, Tanner, entered into a lease agreement with Prudential, for the purpose of erecting one outdoor advertising sign structure upon the leased premises.

March 7, 2000 (DATE OF PRUDENTIAL COMPLAINT) MTC filed its Complaint, seeking to acquire through eminent domain, real property owned by Prudential, as well as the leasehold interest and a sign structure owned by Eller.

March 8, 2000 (DATE OF ENTERGY COMPLAINT) MTC filed a Complaint, seeking to acquire through eminent domain, real property owned by Entergy, as well as the leasehold interest and two sign structures owned by Eller.

July 10, 2000 The Special Court of Eminent Domain entered orders in both the Prudential and Entergy matters granting MTC right of immediate title and possession upon the deposit of 85% of the value of the property condemned, as determined by a court appointed appraiser.

August 1, 2000 (DATE OF POSSESSION) MTC deposited the required funds and took title to, and possession of, both the Entergy and Prudential property, including Eller's leasehold interest and sign structures.

August 27, 2001 MTC filed a Motion for Partial Summary Judgment in the Prudential matter seeking to adjudicate that the only remaining issue is the determination of the cost new, less depreciation, of the sign structures.

October 12, 2001 MTC filed a nearly identical Motion for Partial Summary Judgment in the Entergy matter.

March 1, 2002 The Special Court of Eminent Domain entered orders granting MTC's Motion in both the Prudential and Entergy matters. Specifically, the court held that "the only remaining issue is the determination of the value of a new billboard, less depreciation, that was acquired as a result of these proceedings."

March 28, 2003¹ The parties stipulated that the value of each billboard at issue, using the cost approach, was $57,700.00.

April 1, 2003 MTC filed a Motion for Summary Judgment in both actions, requesting the court to set the amount of just compensation at $57,700.00 per sign structure (cost of a new sign, less depreciation).

May 21, 2003 The Special Court of Eminent Domain granted both summary judgments.

DISCUSSION

¶ 3. Under M.R.C.P. 56, summary judgment should be granted where "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." When reviewing a trial court's decision "to grant summary judgment, this Court will conduct a de novo review." Lamar Corp. v. State Highway Comm'n, 684 So.2d 601, 604 (Miss.1996) (citations omitted). In determining whether the trial court appropriately granted summary judgment this Court reviews all evidence "in a light most favorable to the non-moving party." Id."[T]he burden of demonstrating that no genuine issue of fact exists is on the moving party. That is, the non-movant should be given the benefit of every reasonable doubt." Short v. Columbus Rubber & Gasket Co., 535 So.2d 61, 64 (Miss.1988).

¶ 4. This appeal of summary judgment presents us with the following issues:

(1) Whether the trial court erred in granting partial summary judgment;

(2) Whether the trial court erred in its interpretation of the leases; and

(3) Whether the trial court erred in granting summary judgment.

These issues are inextricably intertwined and, therefore, will be discussed together.

Eminent Domain.

¶ 5. Article 3, Section 17 of the Mississippi Constitution provides that "[p]rivate property shall not be taken or damaged for public use, except on due compensation being first made to the owner or owners thereof, in a manner to be prescribed by law; ..."

¶ 6. Section 43-37-11 of the Mississippi Code Annotated addresses the constitutionally required "due compensation" for "structures," as follows:

(1) Where any interest in real property is acquired, an equal interest in all buildings, structures, or other improvements located upon the real property so acquired and which are required to be removed from such real property or which are determined to be adversely affected by the use to which such real property will be put shall be acquired.

(2) For the purpose of determining the just compensation to be paid for any building, structure or other improvement required to be acquired as above set forth, such building, structure or other improvement shall be deemed to be a part of the real property to be acquired notwithstanding the right or obligation of a tenant, as against the owner of any other interest in the real property, to remove such building or improvement at the expiration of his term. The fair market value which such building, structure or improvement contributes to the fair market value of the real property to be acquired, or the fair market value of such building, structure or improvement for removal from the real property, whichever is the greater, shall be paid to the tenant therefor.

Miss.Code Ann. § 43-37-11(1), (2) (Rev.2000) (emphasis added).

¶ 7. Eller analyzes the statute as follows: When real property is acquired through eminent domain, an adversely affected sign structure located on the real property must also be acquired. The sign structure cannot be valued in the abstract because it is "deemed" to be a part of the real property, notwithstanding anything to the contrary in any lease between the parties. That said, Eller maintains that compensation under the statute for the structure is the greater of: (a) the value which it contributes to the fair market value of the land; or (b) the fair market value of the structure itself. In effect, says Eller, the fair market value of the sign is to be determined as if it were owned by the landowner rather than the tenant.

¶ 8. MTC contends that Miss.Code Ann. § 43-37-11 does not apply at all, because the leases terminated by their own terms, and because Eller contracted away its right to receive any compensation, other than the value of the structures. Therefore, says MTC, Eller is not entitled to compensation except for the cost new, less depreciation, of the billboard sign structures.

The Leases.

¶ 9. Both lease agreements in issue addressed eminent domain. Paragraph 14 of the Prudential Lease states:

In the event that all or a part of the Leased Premises is taken or condemned for public or quasi-public use under any statute or by the right of eminent domain or, in lieu thereof, all or a part of the Leased Premises is sold to a public or quasi-public body under threat of condemnation, this Lease shall terminate as to the part of the Leased Premises so taken, condemned or sold on the date possession is transferred to the condemning authority. All Rent for such part shall be paid up to date of transfer of possession to the condemning authority, and all compensation awarded or paid for the taking or sale in lieu thereof shall belong to and be the sole property of Lessor and Lessee shall have no claim against lessor for the value of any unexpired portion of the lease Term; provided, however, that Lessee shall be entitled to any award expressly made to Lessee.

(emphasis added).

¶ 10. Paragraph 7 of the Entergy Lease states:

(A) If all or a substantial part of the Premises shall be taken by right of eminent domain, this Lease shall terminate and the rent and all other charges which are TENANT's responsibility shall be abated during the unexpired portion of this Lease, effective as of the date when the physical taking of the Premises occurs....

(B) TENANT shall not be entitled to any part of the payment or award for any such taking; provided, however, that TENANT may file a claim for any taking of its Outdoor Advertising Signs, trade fixtures or removable personal property owned by TENANT or moving expenses or damages for cessation or interruption of TENANT's business.

(emphasis added).

Partial Summary Judgment.

¶ 11. Based on the language of these provisions, and the statutory language providing for compensation for structures, MTC filed motions for partial summary judgment, asserting that the only remaining issue was the determination of the cost new, less depreciation, of the Eller sign structures.

¶ 12. The Special Court of Eminent Domain entered orders granting both motions for partial summary judgment. Eller filed motions to reconsider in both matters, and submitted the affidavit of its designated expert appraiser, Dr. Rodolfo Aquilar, who opined: "It is my expert opinion that the sign structure at issue ... should be appraised using the cost, income and sales comparison...