Tunica County v. Matthews, 2004-CA-02352-SCT.

• Decision Date: 13 April 2006
• Docket Number: No. 2004-CA-02352-SCT.,2004-CA-02352-SCT.
• Citation: 926 So.2d 209
• Parties: TUNICA COUNTY, Mississippi, Town of Tunica, Mississippi, and Tunica County Airport Commission v. Ann MATTHEWS, Trustee and John Pritchard, Jr.
• Court: Mississippi Supreme Court

926 So.2d 209

TUNICA COUNTY, Mississippi, Town of Tunica, Mississippi, and Tunica County Airport Commission v. Ann MATTHEWS, Trustee and John Pritchard, Jr.

No. 2004-CA-02352-SCT.

Supreme Court of Mississippi.

April 13, 2006.

COPYRIGHT MATERIAL OMITTED

W. Whitaker Rayner, Jackson, James E. Woods, Olive Branch, attorneys for appellants.

Paul R. Scott, Batesville, attorney for appellees.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. This appeal focuses on the issue of the proper methodology for the valuation of land and the determination of the proper amount of just compensation in an eminent domain case. Tunica County brought this action to take certain property from the landowners to use in expanding the existing airport in Tunica County. After a trial, the jury determined the value of the land in question. The only contested issue at trial, and here on appeal, is the value of the land. A hotly contested issue in this case is certain expert testimony concerning the value of the land taken in these eminent domain proceedings. Finding no error, we affirm the final judgment entered by the Tunica County Special Court of Eminent Domain.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. Tunica County, the Town of Tunica, and the Tunica County Airport Commission (referred to collectively as Tunica) filed this action in The Special Court of Eminent Domain in Tunica County to condemn certain property being used for agricultural purposes in Tunica County and to acquire the property to use as part of an expansion of the existing airport. That the land was being acquired for public use was not contested. Instead, the only dispute was the amount of money owed to the landowners for the land. The landowners' expert witness, Henry Dunklin, valued the land as having a highest and best use, which is the most feasible use that will produce the greatest profit of commercial or industrial property, and arrived at a price of $4,500 per acre, using comparable sales of commercial or industrial land. Granting in part a motion to exclude this testimony, the trial court precluded Dunklin from using comparable sales of the commercial or industrial property, or from testifying that the highest and best use for the property was commercial or industrial.

¶ 3. Nonetheless, the landowners prevailed at trial with a judgment that the land should be valued at $4,500 per acre. Using this valuation, the final judgment entered by the special court of eminent domain stated in pertinent part:

Now, therefore, judgment is entered herein against Tunica County, Mississippi, the Town of Tunica, Mississippi, and the Tunica County Airport Commission in the amount of Ninety-Seven Thousand Six Hundred and 00/100 Dollars ($97,600.00). The sum of $54,225.00 was deposited by the Plaintiff with the Clerk of this Court on October 16, 2000, under Order of the Court granting Plaintiff immediate title and possession and entry upon said property and appropriating it to the public use.

Now, upon payment of the additional sum of $43,375.00 with legal interest on said $97,600.00 at the rate of eight percent (8%) per annum from the date of filing of the complaint on August 4, 2000, until October 16, 2000, and with legal interest on the sum of $43,375.00 at the rate of eight percent (8%) per annum from November 29, 2000, until the payment of the balance of said award, with legal interest thereon as aforesaid, this Judgment shall have been satisfied by payment in full and ownership of the property shall be vested in the plaintiffs and it may be appropriated for the public use as prayed for in the complaint.

¶ 4. To support their valuation of the subject property, the landowners relied on the expert testimony of Dunklin. Using a comparable sales approach method to value the land, which was stipulated by both parties to be the proper method, Dunklin identified a highest and best use of the land as industrial or commercial, concluding that the land should be valued at $4,500 per acre. Tunica's expert, Rip Walker, identified a highest and best use of limited residential or institutional with an interim use of agricultural, arguing for a price of $2,000 per acre. Tunica filed a motion to exclude Dunklin's testimony, and the trial court granted the motion in part, preventing Dunklin from offering an opinion as to the highest and best use of the land as to industrial or commercial, and from basing his opinion on any comparable sales which were commercial or industrial. Nonetheless, Dunklin's opinion as to the value of the land remained the same. Dunklin claimed to have been using a different approach and to have abandoned reliance on five highest-valued comparable sales he initially used. Dunklin also based his opinion in part on a study concerning the use of the land for an airport expansion. Tunica filed another motion to exclude his testimony because it essentially remained unchanged. The trial court denied this motion. Tunica also appeals this ruling, arguing that case law from the United States Supreme Court and from this Court prevent this testimony from being used as it is not based on scientific principles. Tunica raises four issues in this appeal. The first three focus on whether the expert testimony should have been excluded under existing case law, namely, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and Mississippi Transportation Comm'n v. McLemore, 863 So.2d 31 (Miss.2003). The final issue is whether the trial court erred in admitting certain photographs into evidence. Because the first three questions raised fall under the category of the admissibility of the expert's testimony, and for ease of analysis, we will address the four issues raised as only two issues, with the former subdivided into parts.

DISCUSSION

¶ 5. Our well-established standard of review for the trial court's admission or suppression of evidence, including expert testimony, is abuse of discretion. McLemore, 863 So.2d at 34. We give great deference to the discretion of the trial judge. "Unless we conclude that the discretion was arbitrary and clearly erroneous amounting to an abuse of discretion, that decision will stand." Crane Co. v. Kitzinger, 860 So.2d 1196, 1201 (2003).

I. WHETHER THE TESTIMONY OF THE LANDOWNERS' EXPERT WAS PROPERLY ADMITTED.

¶ 6. Rule 702 of the Mississippi Rules of Evidence addresses the admissibility of expert testimony.

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Miss. R. Evid. 702. In McLemore, this Court adopted the standard initially laid out by the United States Supreme Court in Daubert, and later modified in Kumho Tire Co. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). McLemore, 863 So.2d at 35, 39. That standard is a two-pronged test. For expert testimony to be admissible, it must be both relevant and reliable. Id. at 38. The party offering the testimony must show that the expert based his opinion not on opinions or speculation, but rather on scientific methods and procedures. Id. at 36. The trial judge enjoys a role as a gatekeeper in assessing the value of the testimony. Id. at 39. To be relevant and reliable, the testimony must be scientifically valid and capable of being applied to the facts at issue. Id. at 36. See also Poole ex rel. Poole v. Avara, 908 So.2d 716, 721-25 (Miss. 2005).

A. Whether Dunklin's testimony was reliable, thus satisfying Daubert and McLemore.

¶ 7. The landowners' expert, Henry Dunklin testified that the highest and best use of the land was commercial or industrial, and Dunklin initially used comparable sales from commercial or industrial property to reach his conclusion that the fair market value of the land should be $4,500 per acre. Tunica's expert, Rip Walker, meanwhile identified the highest and best use of the property as residential or institutional, with an interim use of agricultural. The land has always been used for agricultural purposes. Granting in part Tunica's motion to exclude, the trial court precluded Dunklin from testifying using these comparables or using this highest and best use. Tunica contends that because the trial court prevented Dunklin from basing his testimony on comparable sales that are commercial, his new valuation of the land should have been much lower, and, that the testimony therefore lacked reliability and was not the product of proper methodology.

¶ 8. The trial court found that commercial sales were not reliably comparable and should be excluded from evidence, referring to Dunklin's opinion as speculative that the highest and best use of the property was commercial or industrial, as it was incompatible with the property characteristics and area development history. Because there was no evidence presented of a probability of a change in zoning, the trial court excluded and prohibited comparable sales of commercial property and any testimony or statement of values based in whole or in part on such comparables. Later, after Dunklin's results remained the same, Tunica filed a second motion to exclude Dunklin's testimony, and the trial court denied this motion to exclude.

¶ 9. The comparable sales the trial court initially ordered excluded were five "per acre" values of $100,000, $56,000, $40,000, $32,000, and $26,000. Thus, the remaining "per acre" values were $18,500, $7,000, $5,500, and $5,000, plus one other new comparable of $7,500 per acre. Dunklin's appraised value of the land at $4,500 per acre remained the same after the trial...