MISSISSIPPI TRANSP. COMM. v. Highland Dev. LLC

Decision Date05 December 2002
Docket NumberNo. 2001-CA-00883-SCT.,2001-CA-00883-SCT.
Citation836 So.2d 731
PartiesMISSISSIPPI TRANSPORTATION COMMISSION v. HIGHLAND DEVELOPMENT, LLC and Highland Development General Partnership.
CourtMississippi Supreme Court

Barry Stuart Zirulnik, Jackson, Hollaman Martin Raney, Clarksdale, Billy Don Hall, Jackson, attorneys for appellant.

Paul R. Scott, Hernando, attorney for appellees.

Before McRAE, P.J., EASLEY and GRAVES, JJ.

McRAE, P.J., for the court.

¶ 1. A jury in the Special Court of Eminent Domain in DeSoto County awarded Highland Development, LLC and Highland Development General Partnership ("Highland" collectively) damages in the amount of $2,300,000 for the condemnation of 37.3 acres of its land for public use and damages to the remaining property. On appeal, the Mississippi Transportation Commission ("MTC") asserts that the trial court erred in (1) denying a new trial because the jury award is not based on credible facts and is so excessive as to evince bias, passion and prejudice, (2) allowing portions of Highland's expert testimony, (3) denying its motion for a new trial because Highland's valuation expert allegedly failed to adhere to proper appraisal principles, and (4) refusing to strike for cause potential jurors.

¶ 2. While this was not the best tried case, we find no prejudicial error or any abuse of discretion that warrants reversal. The disparity in the experts' valuations alone is not indicative of bias, passion and prejudice. Both expert opinions were attacked through direct and cross-examination and with rebuttal testimony in the presence of the jury. A close review of the record indicates fault in both opinions, and the jury decided whether the respective testimony was credible. More importantly, the jury had the opportunity to view the property and assess their own damages independent of the experts' opinions. We find no reason to disturb those findings. Finally, we find that the trial court did not impede upon MTC's right to exercise peremptory challenges. We, therefore, affirm the judgment based on the jury verdict.

FACTS

¶ 3. Neil Burckart, a principal of Highland, obtained an option to purchase 462.3 acres in DeSoto County for residential development. Currently, 134 acres of the land is developed, and 328 acres contains a 102 acre lake and is otherwise undeveloped. Nine lots were sold from August through December of 1994, seventeen in 1995, seventeen in 1996, thirteen in 1997, two in 1998, and two in 1999. In 2000, MTC initiated condemnation proceedings for 37.3 acres to be used in the relocation and reconstruction of Mississippi Highway 304. At that time, there were 79 unsold subdivision lots which were from 1/5 to 3/4 mile away from the highway.

¶ 4. MTC's expert valuation appraiser, Dan Loflin, Jr., estimated the before value of the entire tract to be $2,813,700. He valued the undeveloped 226 acres, excluding the lake, at $4,000 per acre for a total of $906,500. He valued the unsold lots at $29,500 each and allowed for an absorption period of 4 years at a sales rate of 18 lots per year to reach the estimated net present cash value of the unsold lots at $1,907,200.

¶ 5. Loflin's total after value estimation is $2,615,925. He found that the value of the subdivision lots and the remaining undeveloped acres was unaffected by the project. He valued the 189 remaining acres (226 acres minus the acquired 37 acres) at the same $4,000 per acre for a total of $757,200. Loflin determined that the cost of relocating the sewage lagoon, including engineering and design costs to be $48,475. The difference between Loflin's before ($2,813,700) and after ($2,615,925) values equals $197,775, his estimation of just compensation. Loflin attributed the drop in lot sales to varying topography, competition from other developments, or interest rates.

¶ 6. Kip Walker, Highland's valuation expert, estimated the total value of the land before the taking to be $4,260,000. He valued the 79 developed lots at $32,000 per lot totaling $2,528,000; 211.6 acres of undeveloped land at $8,000 per acre totaling $1,693,298; 15 acres with low elevation at $2,500 per acre totaling $37,500; and gave no value to the 102 acre lake.

¶ 7. Walker estimated the total value after the taking to be $1,960,000. This figure includes the 79 developed lots at $17,500 per lot totaling $1,382,500; 50 acres of undeveloped land south of the new highway within 750 feet of the new highway line at $2,500 per acre totaling $125,000; 109.34 acres of undeveloped land south of the new highway fronting on Green River Road at $4,000 per acre totaling $437,344; 20 acres of undeveloped land north of the new highway at $1,000 per acre totaling $20,000; 15 acres of land with low elevation at $2,500 per acre totaling $37,500; and no value to the 97 acres left of the lake for a subtotal of $2,002,344. From this subtotal, Walker subtracted $45,000 for the cost to reconstruct the sewer lagoon for the rounded total of $1,960,000. The difference between Walker's before ($4,260,000) and after ($1,960,000) values equals $2,300,000, his estimation of just compensation.

¶ 8. Hartley Fairchild, an expert, rebutted much of Walker's testimony. He basically concluded that the subdivision was poorly planned and that the remaining lots did not sell because the topography made grading more expensive and the lots less desirable. He also testified that the highway plans had a positive impact on the subdivision due to close proximity.

¶ 9. MTC filed several motions in limine and a motion to strike much of Walker's testimony, all of which the trial court denied. After viewing the property and hearing testimony for five days, the jury unanimously awarded Highland $2.3 million as just compensation and damages to the remainder. In accordance with the verdict, the trial court entered judgment for Highland. After being denied a new trial, MTC timely appealed to this Court.

DISCUSSION

I. Whether the jury award of $2,300,000 was based on conjecture, supposition or mere possibilities and was so grossly excessive as to evince bias, passion and prejudice.

¶ 10. We review the denial of a new trial for abuse of discretion. Alpha Gulf Coast, Inc. v. Jackson, 801 So.2d 709, 722 (Miss.2001). Also, in eminent domain cases, we must be satisfied that the award was not so excessive as to evince bias, passion, or prejudice and that it is supported by competent facts, not conjecture, supposition, or mere possibilities. Miss. State Highway Comm'n v. Viverette, 529 So.2d 896, 900 (Miss.1988) ¶ 11. This entire case boils down to a battle of the experts. MTC argues that the disparity in valuations1 evinces bias, passion and prejudice or at least raises a red flag of doubt as to whether the jury was furnished with a reasonable basis upon which to fix the value of the property. To support this contention, MTC submits that Walker's testimony was based on conjecture, supposition or mere possibilities. MTC complains that Walker used "judgment" where there was no factual data, and therefore he was speculating. The trial court allowed Walker's testimony noting that Walker could be questioned on cross-examination.

¶ 12. MTC notes that this Court has held that a "disparity in value could only have bias and prejudice for the jury in their duty of reaching a fair valuation." McDuffie v. Miss. State Highway Comm'n, 239 Miss. 518, 522, 124 So.2d 284, 285-86 (1960). No explanation is provided for the holding. There were two witnesses for the State whose valuations were within $50 of each other. The landowners' witness testified that the property was worth almost five times as much. Id. at 285. However, in the case sub judice only two valuation experts testified; there was not a third expert to corroborate or discount the two experts' figures.

¶ 13. MTC also cites four other cases where this Court has reversed the jury award or suggested a remittitur when there has been a vast discrepancy in valuation amounts. See Miss. Power Co. v. Walters, 204 So.2d 471 (Miss.1967); Miss. State Highway Comm'n v. Trammell, 252 Miss. 413, 174 So.2d 359 (1965); Miss. State Highway Comm'n v. Hillcrest Farm, Inc., 252 Miss. 154, 171 So.2d 491 (1965); Miss. State Highway Comm'n v. Pepper, 250 Miss. 347, 164 So.2d 911 (1964).

¶ 14. However, more recently we have noted that it is not uncommon for damages estimates to vary widely in condemnation cases. State Highway Comm'n v. Warren, 530 So.2d 704 (Miss.1988), Smith v. Miss. State Highway Comm'n, 423 So.2d 808 (Miss.1982). Also, we have hesitated to interfere with jury verdicts in eminent domain cases especially when the jury has viewed the land. Miss. Transp. Comm'n v. Bridgforth, 709 So.2d 430, 441 (Miss. 1998); State Highway Comm'n v. Havard, 508 So.2d 1099, 1105 (Miss.1987).

¶ 15. MTC claims that it was merely taking 37 acres of undeveloped land and was doing no damage to the remainder. Highland asked the jury to consider damage to the whole property. We have noted that

the rule in this State is that when a part of a larger tract of land is taken for public use, the owners should be awarded the difference between the fair market value of the whole tract immediately before the taking and the fair market value of the remaining property immediately after the taking, without considering the general benefits or injuries to the use of the taken land.

Miss. State Highway Comm'n v. Hancock, 309 So.2d 867, 870 (Miss.1975). Also in eminent domain cases we are "not at liberty to order a new trial unless the verdict is so at variance with the evidence as to shock the conscience of the court ..." Id. Further, if there is any substantial evidence supporting the award, we will not interfere, especially when the jury has viewed the property. See Bridgforth, 709 So.2d at 441; Miss. State Highway Comm'n v. Franklin County Timber Co., 488 So.2d 782, 787 (Miss.1986) (citing City of Jackson v. Landrum, 217 Miss. 10, 63 So.2d 391 (1953)).

¶ 16. The jury...

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