Harris Propane, Inc. v. MISSISSIPPI TRANS. COMMISSION, No. 2000-CA-01353-COA.

• Decision Date: 07 May 2002
• Docket Number: No. 2000-CA-01353-COA.
• Citation: 827 So.2d 6
• Parties: HARRIS PROPANE, INC., William T. Harris and Joseph P. Harris, Appellants, v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
• Court: Mississippi Court of Appeals

827 So.2d 6

HARRIS PROPANE, INC., William T. Harris and Joseph P. Harris, Appellants, v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.

No. 2000-CA-01353-COA.

Court of Appeals of Mississippi.

May 7, 2002.

Certiorari Denied September 26, 2002.

Kenneth B. Rector, Vicksburg, attorney for Appellants.

Jack Homer Pittman, Hattiesburg, Jerry Campbell, Vicksburg, attorneys for Appellee.

EN BANC.

ON MOTION FOR REHEARING

KING, P.J., for the court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion with specially concurring opinion is substituted.

¶ 2. This is the second appeal of this eminent domain case by Harris Propane, William Harris and Joseph Harris (the Harrises). In the first appeal, this Court found error in the failure to consider what, if any, impact, the "Development Agreement" should have upon the value of the property subjected to condemnation. Accordingly, this case was "remanded for a new trial on all issues."

¶ 3. Upon remand and a new trial, in the Warren County Special Court of Eminent Domain, the jury having heard the evidence, and being instructed to decide what, if any, impact the development agreement had upon the property subjected to condemnation, found that the Harrises had suffered no monetary impact.

¶ 4. Aggrieved by this decision, the Harrises have appealed and alleged five assignments of error. However, these issues are inextricably interwoven, and in reality boil down to one issue. That one issue is whether the prior opinion of this Court mandates that the Harrises be awarded damages for the "Development Agreement."

¶ 5. Finding that it did not, the decision of the trial court is affirmed.

STATEMENT OF THE CASE

¶ 6. The facts of this case are not in dispute. The Harrises owned a tract of land of 3.6 acres. Johnny Jabour owned a smaller tract of 0.149 acres. Together, Jabour and the Harrises subsequently purchased a third tract, comprised of 6.56 acres. Only Jabour's individually owned tract had access to Mississippi State Highway 27. The Harrises' property's only access to Highway 27 was a narrow easement across Jabour's tract, which was too small to permit commercial development. The Harrises and Jabour entered into a "Development Agreement," in which they stated their "intent" to pool the properties into one larger piece in order to make commercial development of the property more feasible. While the agreement did not in itself actually convey any property from one party to another, it did give each party the option to match the purchase price and buy any of the pooled property that one of the parties might seek to sell to any third party.

¶ 7. The Mississippi Transportation Commission (MTC) took the majority of the parcel owned by Jabour individually, and smaller portions of the two other parcels. MTC valued the land by Jabour individually at a much higher price per square foot than the two other parcels of land. The Harrises contend that, because of the development agreement in which the parties agreed to develop all the land together, their land should have been valued higher than MTC's determination.

¶ 8. In the first trial, the jury never considered the effect of the development agreement on the value of two tracts in which the Harrises had an ownership interest. The circuit court held that the development agreement was not admissible because an executory contract was not subject to taking, and valuation, pursuant to eminent domain. This Court disagreed, holding that an executory contract was compensable. Thus, the case was remanded for a new trial on all issues, including a jury determination of what, if any, was the value of the development agreement.

¶ 9. A second trial was held, in which the development agreement was introduced into evidence. The Harrises and MTC each introduced expert witnesses who testified regarding the Harrises' property and any affect or value it might be afforded because of the development agreement. Following the presentation of this evidence, the jury was instructed to construe the development agreement to determine whether its effect was to provide some value to the Harrises' property, and if so determine the amount. The jury's verdict was that the development agreement gave no value to the Harrises' property. The issues presented in this appeal pertain to the construction given to the development agreement and whether the expert testimony was properly admissible.

ANALYSIS

I

¶ 10. The Harrises contend that upon remand from this Court's prior holding, and the resulting law of the case, the trial court erred in allowing MTC to argue that the development agreement did not make the parcels of property they held in their own names and jointly with Jabour more valuable. The Harrises contend that this Court's prior opinion found as a matter of law that the development agreement created an ascertainable property right. This assertion misreads the prior opinion, in which this Court held "[w]e rule that whether the contract rights of the Harris brothers in this case are subject to present evaluation is a question of fact to be determined after testimony is presented on this issue." In that opinion, this Court relied upon Hemphill v. Mississippi State Highway Comm'n, 245 Miss. 33, 50, 145 So.2d 455, 463 (1962), in which our supreme court held that a future interest in property was subject to recompense in an eminent domain taking, if the future interest is not "speculative" and was so certain to result in value to an individual that its value was "capable of present evaluation." Hemphill also explicitly found that the determination of whether a future interest was, or was not, so speculative to be "capable of present evaluation" was a jury question. Id. at 52, 145 So.2d 455. Contrary to the Harrises' contention, the intent and effect of this Court's prior opinion was to directly place the question of what, if any, value the contract conveyed before a jury. This Court finds the Harrises' suggestion that this Court's prior opinion limited the Special Court of Eminent Domain to a calculation of the damages due to be erroneous.

II

¶ 11. Having determined that the matter was an issue to be resolved by the jury, it naturally follows that each side was entitled to present competent testimony as to its view of the issue. That holding is in accord with general determinations of questions of law and of fact in cases involving contracts. If the terms of a contract are subject to more than one reasonable interpretation, it is a question properly submitted to the jury. Mississippi Transp. Comm'n v. Ronald Adams Contractor, Inc., 753 So.2d 1077, 1087(¶ 32) (Miss.2000); Garner v. Hickman, 733 So.2d 191, 195(¶ 15) (Miss.1999). In this case, MTC asserted that under the terms of the development agreement, it was not certain that the tracts would be developed in common. The development agreement stated that if Jabour sought to sell his tract to a third party, the Harrises had a right to meet the price and purchase it for themselves. However, MTC argued, if one assumed that the Harrises desired to sell all three properties to a third party for a specific price, they would have no legal right to compel Jabour to sell his property if he simply disagreed with the hypothetical proposed offer, and desired to hold onto his property. This is a rational reading of the development agreement. MTC argued to the jury, through Boackle's testimony, that the development agreement did not create a certainty that the three tracts would be developed as one, and given this ambiguity the development agreement did not operate as to make the two tracts without access to Highway 27 more valuable than that appraised by MTC. The factual issues of a contract susceptible to more than one interpretation are not properly put before an appellate court, but are questions for a jury to resolve. See Smith v. Noble Drilling, 784 So.2d 1003, 1004

(¶ 6) (Miss.Ct.App.2001).

¶ 12. The Harrises assert that M.R.E. 702 should have required the trial court to find that Boackle's testimony as to the legal conclusion of whether the development agreement conveyed enforceable legal rights was inadmissible. This state's case law is replete with cases in which expert witnesses testify to the legal conclusion of the value of a specific tract of land and the various uses for which it can best be applied. See, e.g., Oughton v. Gaddis, 683 So.2d 390, 394 (Miss.1996)

; Mississippi State Highway Comm'n v. Hancock, 309 So.2d 867, 869 (Miss.1975); Mississippi State Highway Comm'n v. Brooks, 239 Miss. 308, 317, 123 So.2d 423, 427 (1960). As such, the trial court did not err allowing expert testimony as to what effect the development agreement had on the properties' values.

¶ 13. Accordingly, this matter is affirmed.

¶ 14. THE JUDGMENT OF THE WARREN COUNTY SPECIAL COURT OF EMINENT DOMAIN IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANTS.

BRIDGES, THOMAS, IRVING, MYERS, CHANDLER and BRANTLEY, JJ., CONCUR. LEE, J., CONCURS IN RESULTS ONLY. SOUTHWICK, P.J., CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY McMILLIN, C.J., BRIDGES AND LEE, JJ.

SOUTHWICK, P.J., concurring:

¶ 15. As the majority explains, this is the second appearance of this case before the Court. In 1998, we reversed the refusal of the special court of eminent domain to permit consideration of the contract as a compensable interest in property. Harris Propane Inc. v. Mississippi Transportation Comm'n, 708 So.2d 103 (Miss.Ct.App. 1998) (mem.). I dissented to that conclusion and continue to believe that it was a misreading of the relevant precedents. Nonetheless, I also find that on this second appeal, the law of the case doctrine applies.

¶ 16. The law of the case principle was discussed by the Supreme Court in a decision that, as here, resolved issues raised in the second appeal of a suit. The Court rejected the appellant's demand that the analysis in the first appeal be overturned:

The

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