State Highway Com'n of Mississippi v. Warren, 57932

• Citation: 530 So.2d 704
• Decision Date: 31 August 1988
• Docket Number: No. 57932,57932
• Court: United States State Supreme Court of Mississippi
• Parties: STATE HIGHWAY COMMISSION OF MISSISSIPPI v. W.W. WARREN, et al.

Page 704

530 So.2d 704

STATE HIGHWAY COMMISSION OF MISSISSIPPI v. W.W. WARREN, et al.

No. 57932.

Supreme Court of Mississippi.

Aug. 31, 1988.

Edwin Lloyd Pittman and Mike Moore, Attys. Gen. by Kenneth E. Crawford, Sr. and Alan M. Purdie, Asst. Attys. Gen., John H. Price, Jr., Thomas, Price, Alston, Jones & Davis, Jackson, for appellant.

John M. Mooney, Jr., McAllister & Mooney, Jackson, for appellees.

Before ROY NOBLE LEE, C.J., and SULLIVAN and ANDERSON, JJ.

SULLIVAN, Justice, for the Court:

The State Highway Commission of Mississippi filed a condemnation proceeding on November 8, 1985, in the Special Court of Eminent Domain, First Judicial District of Hinds County, Mississippi, seeking to condemn for public use .145 acres of a 1.88 acre tract of land owned by W.W. Warren. Also named as party defendants in the condemnation proceeding were Steak and Ale of Mississippi, Inc., Donald Wayne Cooper and Win Vaughn, d/b/a The Silver Mine, and Perry N. Duggar and Carol A. Duggar, d/b/a The Wedding Gallery, Inc., each of whom held a leasehold interest in a part of the condemned property.

The trial commenced on March 25, 1986. At the conclusion of the evidence, the case was submitted to the jury, which returned a unanimous verdict finding that $375,000.00 was due the defendants because of the taking. The jury allocated compensation to each defendant as follows: $200,000.00 to W.W. Warren, $150,000.00 to Steak and Ale of Mississippi, Inc., $15,000.00 to The Silver Mine, and $10,000.00 to The Wedding Gallery, Inc.

Judgment was entered on April 1, 1986, and on April 7, 1986, Warren filed a motion to amend judgment or, alternatively, for a new trial. At the conclusion of this post-trial hearing, the order of the court entered April 30, 1986, provided that a new trial would be awarded unless the Commission accepted an additur of $96,645.00 in favor of Warren.

The Commission promptly filed its rejection of additur on May 8, 1986, and has now appealed to this Court as authorized by Section 11-7-213, Mississippi Code Annotated (1972), requesting a reinstatement of the jury verdict. In addition, the Commission asks this Court to notice plain error under Mississippi Supreme Court Rule 6(b), and either reverse and remand for a new trial, or grant a remittitur, on the basis that it was error for the lower court to allow compensation for loss of access to the interstate frontage road. The Commission assigns only one error bearing discussion:

1. The trial court abused its discretion in entering an Order granting Appellee W.W. Warren a new trial on condition that Appellant, State Highway Commission of Mississippi, rejected an additur of $96,645.00 in that the jury's verdict was not against the overwhelming weight of the evidence or so inadequate as to evince bias, passion or prejudice;

Warren cross-appeals and assigns the following errors:

1. The damages awarded by the jury were inadequate and contrary to the overwhelming weight of the credible evidence and reflected bias, passion, and prejudice against W.W. Warren; and

2. The lower court erred in failing to grant an adequate additur to W.W. Warren.

Prior to the institution of this action, W.W. Warren owned a commercial site composed of approximately 1.88 acres next to the I-55 South Frontage Road, and within 150 feet of Northside Drive. The property contained roughly 450 feet of frontage on the I-55 South Frontage Road, and was divided into three separate parcels with five driveways connecting to the frontage road. The acquired .145 acre strip of land lies on the east side of Warren's property, and is triangular in shape. In addition to the five driveways providing access to the frontage road, there was an additional 115 feet of accessible frontage on Office Park Drive, a public street contiguous to the west side of the property. The acquisition resulted in the loss of all five driveways leading onto the Interstate 55 Frontage Road. Notwithstanding, access remains via Office Park Drive.

As of the date of acquisition on November 8, 1985, the Warren property was leased to three lessees. The southernmost tract, of which .117 acres was acquired, was leased to Steak and Ale of Mississippi, Inc., which operates Bennigan's Restaurant on that location. The other two parcels were leased to The Silver Mine, a pawn brokerage shop, and The Wedding Gallery, Inc., a bridal and formal wear shop. The acquired right of way necessitated the removal of the majority of a six foot roof overhang in front of The Silver Mine building, and a sidewalk underneath it. The walls of The Silver Mine building remain unaffected, and Bennigan's and The Wedding Gallery building likewise remain outside the affected area.

On March 5, 1986, pursuant to Mississippi Code Annotated, Section 11-27-7 (1972), the Commission filed its Statement of Values reflecting that, as of the date of filing of the application, the total compensation due was $285,400.00.

As is often the case, estimates at trial of the damage resulting from the condemnation varied widely. Mr. Bobby L. Cloud testified on behalf of the Commission. Mr Cloud is a real estate appraiser with over 22 years of experience, having a senior real property appraiser designation from the Society of Real Estate Appraisers. He testified that the total property had a value before the acquisition of $1,527,800.00, and a value after the acquisition of $1,242,400.00. The difference between the before and after values, $285,400.00, was Mr. Cloud's estimate of due compensation for the acquisition. In arriving at this figure, Mr. Cloud considered all three approaches to value which appraisers are authorized to use, specifically the cost approach, the market data approach, and the income approach. He adopted the cost approach.

Mr. Cloud recommended that total due compensation be apportioned among the parties as follows: Warren, $157,100.00; Steak and Ale, $121,500.00; The Silver Mine, $5,775.00; and The Wedding Gallery, $1,025.00.

The landowner, Warren, called three value witnesses. Mr. James V. Davis, Jr., testified that, in the before condition, the property's value was $1,690,000.00. Mr. Davis surmised that the after value of the property was $692,032.00, yielding rounded total due compensation of $998,000.00. Mr. Davis allocated $212,000.00 of this amount to Steak and Ale, with the balance of $786,000.00 going to Mr. Warren. In Mr. Davis' opinion, no compensation was due to The Silver Mine or to The Wedding Gallery for the reason that each lessee was paying market rent, and therefore, had no rent advantage.

Mr. Joe William Parker also testified for the landowner. His appraisal, however, related only to the raw land, exclusive of improvements. Mr. Parker estimated that the entire tract was damaged in the amount of $680,632.00. Parker did not apportion damages among the interested parties.

Finally, Mr. Warren testified that in his non-expert opinion, the before value of the property was $2,000,000.00, and that the value of the remaining land and improvements after the acquisition would be $850,000.00, the difference being damages of $1,150,000.00. As to the allocation, Mr. Warren testified that Steak and Ale would be due $300,000.00, The Silver Mine $20,000.00, and The Wedding Gallery $10,000.00, with the remainder going to himself. Mr. Warren later testified, however, that he meant the $1,150,000.00 figure to represent his entire share only. Mr. Warren based his large damage assessment on his belief that the property could not continue to be used for commercial retail purposes in its after condition.

Following entry of final judgment in the amount of $375,000.00, the parties filed various motions. One of the grounds assigned by Warren in his post-trial motion to amend judgment, or alternatively, for a new trial, was that "the verdict of the jury was against the overwhelming weight of the evidence and reflects bias, passion, and prejudice against Warren." At the post-trial hearing, Mr. Warren testified as to an offer of May 13, 1985, by the State Highway Department showing fair market value of Warren's damages to be $296,645.00. Admissibility aside for the moment, the record reflects that the fair market value offer was not in evidence at trial, and was not even sought to be introduced by Warren at trial.

At the conclusion of the post-trial hearing, the trial judge determined that the Commission had assigned due compensation to Warren in the amount of $296,645.00 on May 13, 1985, and therefore, was bound by that figure. Consequently, Warren was...