North Biloxi Dev. V. Miss. Transp. Com'n, No. 2004-CA-00781-COA.

Citation912 So.2d 1118
Decision Date18 October 2005
Docket NumberNo. 2004-CA-00781-COA.
PartiesNORTH BILOXI DEVELOPMENT CO., L.L.C., f/k/a Highway 67 Development Co., L.L.C., Appellant v. MISSISSIPPI TRANSPORTATION COMMISSION, Appellee.
CourtUnited States State Supreme Court of Mississippi

Virgil G. Gillespie, Gulfport, attorney for appellant.

Jack Homer Pittman, Hattiesburg, attorney for appellee.

EN BANC.

KING, C.J., for the Court.

¶ 1. This appeal comes to this Court from the Special Court of Eminent Domain of the Second Judicial District of Harrison County. The landowner, North Biloxi Development Co., LLC, disputes the amount awarded to it by a jury for about seventy-two acres its property taken by eminent domain by the Mississippi Transportation Commission for construction of a highway. North Biloxi Development Co., LLC appeals and asserts the following errors:

I. Whether the trial court erred in granting instruction No. P-2 over the objection of the appellant.

II. Whether the trial court erred in granting instruction No. P-4 over the objection of the appellant.

III. Whether the trial court erred in granting instruction No. P-5 over the objection of the appellant.

IV. Whether the trial court erred in granting instruction No. P-6 over the objection of the appellant.

V. Whether the trial court erred in failing to grant instruction No. D-6 in favor of the appellant.

VI. Whether the trial court erred in allowing the jury to hear testimony less than the sum of $594,700, which was the amount of the original statement of value and the approved appraisal. This question was presented to the court at various times throughout the court and the court consistently held against the appellant in this regard.

VII. Whether the trial court erred in its ruling on the motion to limit filed by the appellant prior to trial regarding the appellee's use or nonuse of timber values in the appraisal.

VIII. Whether the trial court erred in overruling the appellant's motion for new trial.

Finding no error, we affirm.

FACTS

¶ 2. On August 2, 2001, the Mississippi Transportation Commission, (MTC), filed a complaint to condemn about seventy-two acres owned by North Biloxi Development Company, LLC (North Biloxi Development) in Harrison County for construction of a new highway from Interstate-10 to the Cowan-Lorraine Road Extension. MTC sought 71.814 acres for the project of North Biloxi Development's total acreage of 987.952. The acquisition also included limiting access to and from the new highway except in seven designated locations.

¶ 3. On the date of the taking, August 2, 2001, North Biloxi Development's land was in a single contiguous parcel undivided except that Mississippi Highway 15 ran through the easternmost part of the land placing approximately 16 acres on the east side of Highway 15 and the rest of the property on the west side. The MTC taking made an arc through the landowner's property dividing it into six separate and non-contiguous parcels. The nearly 988 acres of the landowner was located approximately two miles north of Interstate-10 and near the city limits of Biloxi and D'Iberville. Twenty eight acres of the approximate seventy-two acres of land to be taken by MTC was wetlands. North Biloxi Development total wetlands acreage is 347.

¶ 4. Shortly after August 2, 2001, the date of the taking, the court-appointed appraiser, Jeanne S. Adams of Gulfport, placed the value of the property at $323,000. On October 18, 2001, a quick take order was entered by the court giving MTC title to the property and the right of immediate possession. On November 16, 2001, MTC deposited a total of $589,515 into the registry of the Circuit Clerk of Harrison County for the quick take. The court allowed $1,000 of the funds to be paid to the court-ordered appraiser. By order filed January 3, 2002, the court directed the clerk to disburse $588,515 and any accrued interest to Gulfport attorney Virgil G. Gillespie, in trust, in order to obtain a release of a deed of trust on the property held by Peoples Bank of Biloxi, and upon such release being obtained the court ordered to disburse the balance of the funds to North Biloxi Development. (Peoples Bank and Lyle M. Page, trustee under the deed of trust, had been originally named as defendants.)

¶ 5. On August 16, 2002, MTC filed its statement of value, pursuant to Mississippi Code Annotated section 11-27-7 (Rev.2004), placing the fair market value of the property at the date of the taking at $461,865 with damages to the remainder of the property valued at $132,835 for a total compensation to the landowner of $594,700. The statement listed the elements of damages as "proximity damages." The statement said the highest and best use of the property was for residential development.

¶ 6. On January 14, 2003, MTC filed an amended statement of value placing the fair market value of the property at $461,860 and damages to the remainder at $6,365 for a total compensation of $468,225. The amended statement listed the elements of damage as "loss in value due to shape and uneconomic remnant." On April 29, 2003, MTC filed a second amended statement of value placing the fair market value of the acreage to be taken at $462,735, with damages to the remainder at $6,365, for a total compensation of $469,100. The second amended statement of value listed the elements of damage as "proximity damage." (The reasons for changes in MTC's statement of value will be set out in our discussion of the issues.) MTC's statement said the highest and best use for the property was residential development. On February 4, 2004, North Biloxi Development filed its statement of value placing the fair market value of the property to be taken at $466,791 and damage to the remainder at $1,488,485 for a total compensation of $1,955,276. The landowner listed the elements of damages as "severance, dividing the property into smaller parcels, taking the high ground of the property, increase in wetlands factor, decrease in highlands, market diminution in value, and other depreciation factors resulting from a severance and taking of this nature and magnitude." The statement said the highest and best use of the land was for a residential subdivision or golf course/residential development.

¶ 7. On May 8, 2003, an order was entered dismissing the Peoples Bank from the action since the bank had no further interest in the property and adding BankcorpSouth and J. Patrick Caldwell as defendants due to a deed of trust on the property recorded on October 11, 2001.

¶ 8. On May 9, 2003, the three judges of the County Court of Harrison County recused themselves because two of the litigants, William L. Guice, III, and Bobby G. O'Barr, were members of the bar practicing before the county court. T. Larry Wilson of Pascagoula was appointed to preside over the case.

¶ 9. A two-day trial began on February 18, 2004, before twelve jurors. The second day of trial the jury was taken to view the property. Construction on the new highway had already begun. Following the viewing, MTC called three witnesses, Bradley K. Anderson, project engineer for the Mississippi Department of Transportation (MDOT); Charles Walters, an environmental scientist; and William B. Milton, a real estate appraiser who had twenty-five years of prior experience with MDOT. Milton testified that the value of North Biloxi Development's total acreage (987.952 acres) before the taking was $5,977,110, and he said the value of the remaining 914.171 acres after the taking was $5,536,270. Milton testified that the fair market value of the property taken by MTC was the difference in the before value and the after value or $440,840. The landowner called but one witness, J. Daniel Schroeder, a certified general appraiser from Biloxi. Schroeder testified that the before value of North Biloxi Development's acreage was $6,421,688 and the after value was $4,466,411.95 with the difference between the two being $1,955,276 which he said was just compensation. The jury returned a verdict in the amount of $572,221.14 as just compensation to North Biloxi Development for MTC's acquisition of about seventy two acres of its property. A final judgment was entered on April 8, 2004. North Biloxi Development's motion for a new trial was denied and this appeal ensued. Further facts will be set out during the discussion of the issues.

ISSUES AND ANALYSIS

ISSUES I., II., III., AND IV.

Whether the trial court erred in granting instructions No. P-2, P-4, P-5 and P-6 over the objection of the appellant

¶ 10. Because issues I., II., III., and IV. deal with instructions given to the jury over the objection of North Biloxi Development, we will address these four assignments of error together.

¶ 11. The standard of review which we employ when reviewing jury instructions on appeal is that we must read the instructions as a whole. Entergy Mississippi, Inc. v. Bolden, 854 So.2d 1051, 1054(¶ 6) (Miss.2003). An instruction that incorrectly states the law, is covered fairly in another instruction or is without foundation in the evidence need not be given. Heidel v. State, 587 So.2d 835, 842 (Miss.1991). The main query we make when reviewing jury instructions is whether (1) the jury instruction contains a correct statement of the law and (2) whether the instruction is warranted by the evidence. Seigfried v. State, 869 So.2d 1040, 1044(¶ 11) (Miss.Ct.App.2003).

(a) Jury Instruction P-2

¶ 12. North Biloxi Development alleges that the trial court erred in granting MTC's Jury Instruction P-21. The landowner contends that it was unnecessary for the jury to be told there was a deposit of funds for the benefit of the landowner. It argues that the instruction was confusing in that by telling the jury that there had been a deposit of funds for the landowner, the instruction implied that the landowner had already received some money over and above what the jury may award. North Biloxi Development asserts that because of the...

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