Wendell L. Brown v. Mississippi Transportation Commission ( 1998 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 98-CA-00455-SCT
WENDELL L. BROWN AND HAZEL BROWN
v.
MISSISSIPPI TRANSPORTATION COMMISSION
DATE OF JUDGMENT: 01/26/1998
TRIAL JUDGE: HON. DANIEL D. GUICE
COURT FROM WHICH HARRISON COUNTY SPECIAL COURT OF
APPEALED: EMINENT DOMAIN
ATTORNEY FOR PRO SE
APPELLANTS:
ATTORNEYS FOR GARY WHITE
APPELLEE:
JAMES B. WRIGHT, JR.
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
DISPOSITION: AFFIRMED - 09/09/1999
MOTION FOR REHEARING 10/08/99; denied 12/02/99 & Paras. 28 & 29 modified
FILED:
MANDATE ISSUED: 12/09/99
BEFORE PRATHER, C.J., BANKS AND SMITH, JJ.
SMITH, JUSTICE, FOR THE COURT:
¶1. This case comes to this Court from the Special Court of Eminent Domain of Harrison County, in which
landowners, Wendell L. and Hazel Brown, dispute the amount awarded by a jury for their property. The
Browns fail to cite supporting authority concerning most of the issues raised; and therefore, we do not
consider those issues. The Browns were entitled to relocation expenses but failed to follow the statutory
scheme to recover those funds. We also find that the trial court erred in instructing the jury concerning the
landowners' valuation testimony Instruction P-6, but this was harmless error as the jury verdict of $57,365
fell between the $54,000 value of the property submitted by the Mississippi Department of Transportation's
appraiser and the $61,500 value submitted by the Browns appraiser. We affirm the trial court's judgment.
FACTS
¶2. In order to widen U.S. Highway 49, the Mississippi Transportation Commission (hereinafter
"Commission"), filed a complaint in the Harrison County Special Court of Eminent Domain to condemn the
Browns property located in Harrison County. After the parties were unable to reach an agreement, the
Commission sought to receive the right of immediate title and possession. On May 16, 1996, the trial court
granted the right of immediate title and possession and entry upon the lands sought to be condemned. The
Browns were given thirty days after the deposit of the compensation to vacate the property.
¶3. On the property sought were two buildings, a converted house and a storage building. Approximately
one-half of the Browns converted house rested on the strip of the subject property.
¶4. On October 23, 1996, the Commission filed a Motion for Contempt Citation for the Browns failing to
vacate the property. The Commission stated that a sum of $55,100 was deposited into the registry of the
court on June 19, 1996, but the Browns failed to vacate.
¶5. On November 1, 1996, the Browns filed a Response to Motion for Contempt Citation. The Response
alleged that the Browns had made forty-eight trips in attempting to get moved, but had run out of funds. The
Browns therefore, requested either part or all of the funds deposited to be released. Further, the Browns
alleged that they were entitled to 90 days to vacate.
¶6. On November 12, 1996, the Browns filed a Motion to Restrain the Commission from entering the
property not taken and from taking a portion of the house structure not found on the property taken.
¶7. After a hearing, an order was entered allowing the Browns to retain title and possession of the building
partially located on the condemned property. The order stated that the Browns elected to move the building
rather than seek compensation from the Commission for the value of the building. It was stated that the
Commission does not, nor ever had title or possession to the building. The order gave the Browns twenty-
one days to remove the building, and further, the Commission was not liable to the Browns for the expense
of moving the building.
¶8. On July 14, 1997, the Commission filed a Motion in Limine to prevent the Browns from entering any
evidence to an alleged loss to a building and prevent an appraiser from testifying to the value of the property
including the building. Further, the Commission wanted to prevent testimony regarding the cost incurred in
relocating the building. The Browns claim that in addition to the amount of the jury verdict, they are entitled
to $12,000 moving expenses and $25,000 relocation expenses.
¶9. On January 15, 1998, an Order Sustaining Motion in Limine was filed. On January 16, 1998, the
Browns filed a Petition for Interlocutory Appeal.
¶10. After a trial on the matter, the jury returned a verdict fixing the Browns' compensation at $57,365, and
judgment was entered accordingly. The Browns filed a Motion for Additur or in the Alternative for a New
Trial which was denied. Feeling aggrieved, the Browns appeal to this Court raising the following issues:
I. WHETHER THE BROWNS WERE DENIED DUE PROCESS IN NOT BEING
NOTIFIED OF THE ORIGINAL HEARING IN THIS CASE.
II. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS FROM
RECOVERING MARKET VALUE OF THE HOUSE ON THE PROPERTY TAKEN,
AND/OR COSTS OF MOVING THE HOUSE FROM THE PREMISES AND COSTS OF
RECONNECTING THE HOUSE UTILITIES.
III. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS
FROM PRESENTING TO THE JURY THE FACTS THAT THERE WAS A HOUSE ON
THE PROPERTY AT THE TIME OF THE TAKING AND THAT AN ANTIQUE
BUSINESS WAS BEING CONDUCTED THEREFROM.
IV. THE SPECIAL COURT OF EMINENT DOMAIN ERRED IN SUSTAINING
MDOT'S MOTION IN LIMINE IN AN ORDER DATED JANUARY 20, 1998 WHICH
PROHIBITED THE BROWNS FROM MENTIONING THE HOUSE.
V. THE COURT ERRED IN REFUSING TO ORDER THE MDOT TO PRODUCE ANY
AND ALL DOCUMENTS REQUESTED IN THE SUBPOENA DUCES TECUM SERVED
ON DONALD DAVIS, EMPLOYEE OF MISSISSIPPI DEPARTMENT OF
TRANSPORTATION.
VI. THE COURT ERRED IN REFUSING TO ALLOW CROSS EXAMINATION OF
PROPERTY PURPORTEDLY USED BY MDOT FOR IT APPRAISAL, THAT OF SALE
OF 10/16/89, COFIELD TO CAIN IN DEED BOOK 1143, PAGE 501 WHEN IT WAS
SENT TO BROWNS AS DISCOVERY AND THE FIGURES OF THAT AND THE
OTHER PROPERTY TALLY, BUT THE SUBSTITUTED PROPERTY OF WHICH NO
COMPARABLE DATA SHEET WAS EVER FURNISHED DOESN'T TALLY.
VII. THE COURT ERRED IN ALLOWING MDOT TO USE THE PROPERTY SOLD BY
SAWYER REAL ESTATE TO JOHN FORETICH ON 2/22/96 WHEN THE
COMPARABLE DATA OF THIS PROPERTY WAS NEVER FURNISHED UNTIL THE
DAY OF TRIAL IN VIOLATION OF THE COURT ORDER TO MDOT TO FURNISH
SUCH DATA ON 1/20/98.
VIII. THE COURT ERRED IN REFUSING TO ALLOW ANY MENTION OF THE
HOUSE LOCATED PARTIALLY ON THE PROPERTY TAKEN AND PARTIALLY ON
THE PROPERTY REMAINING, ON THE DATE OF TAKING, APRIL 17, 1996.
IX. THE COURT ERRED IN REFUSING TO ALLOW APPRAISER FRED LEWIS TO
TESTIFY IN REBUTTAL OF MDOT'S COMPARABLE SALES DATA #1, WHICH WAS
SOLD 3/2/95, DEED BOOK 1298 PAGE 580 WHEN LEWIS WAS FAMILIAR WITH
THE PROPERTY AND WOULD OFFER PROOF THAT IT WAS NOT A
COMPARABLE SALE OF PROPERTY.
X. THE COURT ERRED IN ALLOWING INTO EVIDENCE COMPARABLE SALES
DATA #1.
XI. THE COURT ERRED IN REFUSING TO ALLOW EVIDENCE OF MOVING AND
RELOCATION EXPENSES.
XII. THE COURT ERRED IN REFUSING TO ALLOW THE BROWNS APPRAISER,
LEWIS, TO TESTIFY AS TO THE EFFECT OF THE CURB BEING PLACED BY MDOT
AND ITS FURTHER EFFECT ON THE AFTER VALUE OF BROWNS PROPERTY.
XIII. THE COURT ERRED IN REFUSING TO ALLOW EVIDENCE BY BROWNS OF
THE PROPERTY'S UNSALABLENESS.
XIV. THE COURT ERRED IN REFUSING TO ALLOW HAZEL BROWN TO TESTIFY
IN DETAIL OF HER FAMILIARITY WITH REAL ESTATE AND SIMILAR
PROPERTIES.
XV. THE COURT ERRED IN REFUSING TO ALLOW WENDELL BROWN TO
TESTIFY IN DETAIL OF HIS FAMILIARITY OF VARIOUS SIMILAR PROPERTIES
OF WHICH HE HAD KNOWLEDGE AND ESPECIALLY ABOUT THE CONDITION OF
THE PROPERTY NEXT DOOR WHICH HAD UNDERGROUND GASOLINE TANKS
AND TWO BUILDINGS THAT HAD EXTENSIVE FIRE DAMAGE WHICH GREATLY
REDUCED THE VALUE.
XVI. THE COURT ERRED IN RESTRICTING THE LATITUDE OF BOTH BROWNS
TESTIMONY.
XVII. THE COURT ERRED IN GRANTING MDOT INSTRUCTION P-6.
XVIII. THE COURT ERRED IN ALLOWING MDOT TO CROSS EXAMINE LEWIS
ABOUT HIS ORIGINAL APPRAISAL WHICH INCLUDED THE HOUSE THEREIN
AND HIS AFTER VALUE OF $75,000 OF THE PROPERTY AND NOT ALLOWING AN
EXPLANATION BY LEWIS WHEN IN FACT THE MDOT HAD OPENED THE DOOR
TO THE COURTS ORDER IN LIMINE THEREIN.
XIX. THE COURT ERRED IN ALLOWING SCHOOL TEACHERS, WHO ARE EITHER
EMPLOYEES OF THE STATE OF MISSISSIPPI, OR PREJUDICED TO WANT MDOT
TO WIN BECAUSE OF THEIR STATE PENSION PLANS, ON THE JURY.
XX. THE COURT ERRED IN NOT ORDERING THE REQUESTED ADDITUR OR IN
THE ALTERNATIVE, A NEW TRIAL.
XXI. THE COURT ERRED IN SUBORNING THE PERJURIOUS TESTIMONY OF THE
MDOT APPRAISER, DANIEL H. LOFLIN, AND ALLOWING THE MDOT COUNSEL,
GARY WHITE TO SUBORN THE PERJURY AND OBSTRUCT JUSTICE.
LEGAL ANALYSIS
I. WHETHER THE BROWNS WERE DENIED DUE PROCESS IN NOT BEING
NOTIFIED OF THE ORIGINAL HEARING IN THIS CASE.
¶11. The Browns contend that they were denied due process contrary to Sections 14 and 24 of Article 3
of the Mississippi Constitution and the due process clause of the fourteenth amendment to the U.S.
Constitution when they were not served notice of the original hearing in this case. However, the Browns
failed to present this argument to the lower court. The trial judge cannot be put in error on a matter which
was not presented to him for decision. Cossitt v. Federated Guar' Mut' Ins. Co., 541 So. 2d 436, 446
(Miss. 1989). The Browns cite to page 2 of the record. However, there is nothing in the record to indicate
that the Browns were not notified of an original hearing. Therefore, this assignment of error is without merit.
II. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS FROM
RECOVERING MARKET VALUE OF THE HOUSE ON THE PROPERTY TAKEN,
AND/OR COSTS OF MOVING THE HOUSE FROM THE PREMISES AND COSTS OF
RECONNECTING THE HOUSE UTILITIES.
¶12. The Browns argue that they were entitled to compensation for the portion of the house taken and for
damages to the remainder. The Browns contend that they never agreed to give up any compensation in
order to move the whole house. Once the house was loaded on the house movers truck, the Browns
contend that it became personal property and they were entitled to the $12,000 expense of moving the
house. In the process of moving the house, the plumbing and electrical wiring had to be removed. The
Browns contend that the costs of rewiring and replumbing the house and constructing the steps should be
paid to them under the Mississippi Relocation Assistance Law Miss. Code Ann. §§ 43-39-1 to -29 (1993
& Supp. 1998). The Browns assert that if they had purchased another property that needed utilities, the
costs would be covered under the above statute. Additionally, the Browns argue that Hazel Brown, as a
displaced person or business as described in § 43-39-5 is entitled to the additional $25,000 payment under
§ 43-39-9. The Browns contend that the business has been shut down since the taking in April 1996, and
the inventory and equipment are still in storage because the moving and relocation expenses have not been
paid. Finally, the Browns contend that they have had to spend money on moving the house and attorney
fees trying to get just compensation for their property that was taken.
¶13. The Commission argues that in sustaining it's Motion in Limine, the trial court was enforcing a court-
approved settlement agreement between the Browns and the Commission. The Commission, in accordance
with the statute, had also offered $4,394, plus an additional maximum of $1,000 re-establishment expenses
by letter date December 13, 1995. The Commission contends that the record is clear that the Browns,
through their attorney, asked the trial court to prevent the MDOT from destroying the building and further
asked the trial court to allow the Browns to be given and to move the building. MDOT argues that the trial
court made clear that if the court signed the order giving them the building and allowing them to move the
building, the Browns would have no claim for damages to the building or for expenses associated with
moving the building.
¶14. MDOT argues that the doctrine of estoppel applies to preclude the Browns from asserting any
entitlement to damages or expenses because the Browns led the trial court and the MDOT to believe that
they agreed to the terms stated by counsel for MDOT.
¶15. MDOT condemned a portion of the Browns property upon which a building was partially located.
MDOT planned to tear down the building, which would have displaced the Browns antique business.
However, the Browns requested that they be given the entire building and be allowed to move the building
since it was of no use to MDOT. MDOT agreed to give them the building. Concerning the MDOT allowing
the Browns to move the house, the trial judge stated that there was an agreement that MDOT would not be
held responsible for moving expenses nor that MDOT ever had title to the building. The Browns now
dispute this supposed agreement and assert that they should have received market value for the house
and/or received relocation expenses under Mississippi Relocation Assistance Law.
¶16. Relocation assistance as provided for in the Mississippi Relocation Assistance Law was adopted in
1972 to comply with the federal Uniform Relocation Assistance in Real Property Acquisition Policies Act
of 1970. This Act attempted to set out fair and equitable treatment of those displaced by acquisition of
private property for federally funded projects. Relocation assistance includes moving expenses for the
dislocated person, his family, business, farm operation, his personal property, replacement housing for a
home owner displaced from his dwelling, replacement housing for tenants, relocation assistance and
advisory services. Mississippi State Highway Comm'n v. Waller, 353 So. 2d 755, 757 (Miss. 1977).
Since the parties agreed that the Browns could have the building and remove it, then it should be considered
their personal property of which relocation expenses should be provided. Miss. Code Ann. § 43-39-7(1)
(a) provides:
If a displacing agency acquires real property for public use, it shall make fair and reasonable relocation
payments to displaced persons and businesses as required by this chapter for: (a) Actual reasonable
expenses in moving himself, his family, business, farm operation or other personal property....
¶17. The question that arises is whether the Browns waived any rights to claim for expenses associated with
moving the building. The following took place with regard to the agreement:
Mr. Berry [attorney for the Browns]: My understanding is that the house will be moved in two weeks;
that the DOT will- - that they will put in there that they never had ownership of the house, and that the
DEQ will be notified immediately.
The Court: Yes, sir.
Mr. Berry: And I would just like to put in the order that neither party is giving up any of their rights.
The Court: And I think he is talking about putting in the order the fact that they don't claim any
ownership in the house.
Mr. Berry: I understand.
The Court: And you're agreeing to that?
Mr. White [attorney for the Commission]: And I am also saying that the order should state that the
house should be excluded from any appraisals and that the Department of Transportation will not be
liable for the moving expenses.
The Court: That's the main thing we need in there, that they won't be liable for the moving expenses.
Mr. Berry: I don't know if they are liable for it or not, to tell the truth, judge.
The Court: Well, I'll agree that your people should be responsible for moving it if they want the house.
That's clear enough to me.
Mr. Berry: Okay. You would be more experienced at this than I am. You know, I'm just pleading
ignorance here today.
The Court: I don't believe that.
Mr. Berry: But I'm trying to represent my clients the best I can. However, I don't want to exclude any
of their rights.
¶18. MDOT and the trial judge obviously thought that the matter was settled and that the Browns had
agreed to all terms. The record indicates, however, that the Browns counsel did not waive their rights with
regard to relocation and re-establishment expenses. In a letter dated December 13, 1995, MDOT stated
that because the Browns were owners of a displaced business, the Department, through its Relocation
Assistance Program will reimburse expenses incurred to move and reinstall personal property in the amount
of $4,394 plus $1,000 on re-establishment expenses.
¶19. Not waiving their rights, the Browns were entitled to relocation and re-establishment expenses.
However, since the Browns disagreed with the amount offered by MDOT, the proper procedure would
have been an appeal within the Relocation Assistance Program, in which the landowner, aggrieved by the
amount offered, as such assistance may, according to Miss. Code Ann. § 43-39-17(1)(c) (Supp. 1993),
seek review by the appropriate administrative agency. 353 So.2d at 757.
¶20. Additionally, Miss. Code Ann. § 43-39-25 (Supp. 1998) provides the following:
Any person or business concern aggrieved by the determination of a displacing agency concerning
eligibility for relocation payments authorized by this chapter shall have the right of appeal to the court
that would have had jurisdiction if the cause were in eminent domain from such decision at any time
within 20 days after actual notice to the aggrieved party....
The Browns were entitled to relocation assistance but should have followed the proper procedure in
attempting to acquire that assistance by pursuing administrative remedies and if dissatisfied, then appeal. The
Browns failed to follow the statutory guidelines to claim their relocation and reestablishment expenses and
are not entitled to such expenses at this late date in this eminent domain proceeding. There is no merit to this
issue.
III. WHETHER THE TRIAL COURT ERRED IN PROHIBITING THE BROWNS
FROM PRESENTING TO THE JURY THE FACTS THAT THERE WAS A HOUSE ON
THE PROPERTY AT THE TIME OF THE TAKING AND THAT AN ANTIQUE
BUSINESS WAS BEING CONDUCTED THEREFROM.
IV. THE SPECIAL COURT OF EMINENT DOMAIN ERRED IN SUSTAINING
MDOT'S MOTION IN LIMINE IN AN ORDER DATED JANUARY 20, 1998 WHICH
PROHIBITED THE BROWNS FROM MENTIONING THE HOUSE.
VIII. THE COURT ERRED IN REFUSING TO ALLOW ANY MENTION OF THE
HOUSE LOCATED PARTIALLY ON THE PROPERTY TAKEN AND PARTIALLY ON
THE PROPERTY REMAINING, ON THE DATE OF TAKING, APRIL 17, 1996.
¶21. The Browns argue that the court erred in not allowing them to testify completely. Apparently the
Browns argue that they were not allowed to testify in court that there was a house on the property used as
an antique business, that the court erred in sustaining MDOT's motion in limine, and that the court erred in
preventing them from testifying that there was a house located partially on the taken property and partially
on the remaining property at the date of taking.
¶22. MDOT contends that the Browns are mistaken concerning issues III, IV and VII. MDOT contends
that the motion in limine did not prohibit the Browns from mentioning the fact that there was a building on
the property originally. However, the order prohibited the Browns from offering evidence regarding the
value of the building or the expenses associated with moving the building.
¶23. MDOT contends that witnesses for the Browns several times made the jury aware that there was a
building on the property which was being used as an antique store.
¶24. The Browns cite no authority in support of the above contentions. As a result, We refuse to consider
these issues for failure to support the already sparse argument without any authority. Cook v. Mardi Gras
Casino Corp., 697 So. 2d 378, 382 (Miss. 1997); Brown v. State, 534 So. 2d 1019, 1023 (Miss. 1988)
; Sumrall v. Mississippi Power Co., 693 So. 2d 359, 368 (Miss. 1997) (holding that appellant bears
burden of persuasion on appeal and that appellate courts will not consider issues on appeal for which no
supporting authority has been cited).
V. THE COURT ERRED IN REFUSING TO ORDER THE MDOT TO PRODUCE ANY
AND ALL DOCUMENTS REQUESTED IN THE SUBPOENA DUCES TECUM SERVED
ON DONALD DAVIS, EMPLOYEE OF MISSISSIPPI DEPARTMENT OF
TRANSPORTATION.
¶25. The Browns argue that they were not furnished the requested documents of Donald Davis specifically,
certain appraisals. The Browns cite Hudspeth v. State Highway Comm'n, 534 So. 2d 210 (Miss. 1988)
to support their contention.
¶26. MDOT contends that apparently the Browns complain about the court's refusal to require production
of prices paid by MDOT for other condemned property. Further, MDOT contends that the trial court was
correct in refusing to require the production of such prices inasmuch as sales to an agency with condemning
authority are not admissible in evidence and cannot be used as comparable sales by an appraiser.
¶27. The Browns filed a Motion to Compel and Motion for Continuance seeking an order compelling
MDOT to produce certain documents which were the subject of two subpoenas issued by the Browns in
July 1997. After issuing the two subpoenas, the trial was continued on at least five occasions. The issuance
of the subpoenas was the only discovery taken in this case by the Browns.
¶28. On January 20, 1998 at a hearing on the motion, the trial judge denied the motion for continuance and
directed MDOT to provide information from its appraisal of the subject property, but not prices paid to
other landowners in the area for condemned property.
¶29. The discovery tools, rules and procedures available in other civil proceedings are available in eminent
domain proceedings. State Highway Comm'n v. Jones, 649 So. 2d 201, 203 (Miss. 1995); Barrett v.
State Highway Comm'n., 385 So. 2d 627, 628 (Miss. 1980). The trial court was correct in denying the
production of prices paid for other condemned property. Because they are more in the nature of a
compromise and are not, therefore, fair indicators of market value, sales to an agency with condemning
authority are not admissible in evidence and cannot be used as comparable sales by an appraiser. State
Highway Comm'n, v. Hyman, 592 So. 2d 952, 957 (Miss. 1991). This issue is without merit.
VI. THE COURT ERRED IN REFUSING TO ALLOW CROSS EXAMINATION OF
PROPERTY PURPORTEDLY USED BY MDOT FOR ITS APPRAISAL, THAT SALE OF
10/16/89, COFIELD TO CAIN IN DEED BOOK 1143, PAGE 501 WHEN IT WAS SENT
TO BROWNS AS DISCOVERY AND THE FIGURES OF THAT AND THE OTHER
PROPERTY TALLY, BUT THE SUBSTITUTED PROPERTY OF WHICH NO
COMPARABLE DATA SHEET WAS EVER FURNISHED DOESN'T TALLY.
VII. THE COURT ERRED IN ALLOWING MDOT TO USE THE PROPERTY SOLD BY
SAWYER REAL ESTATE TO JOHN FORETICH ON 2/22/96 WHEN THE
COMPARABLE DATA OF THIS PROPERTY WAS NEVER FURNISHED UNTIL THE
DAY OF TRIAL IN VIOLATION OF THE COURT ORDER TO MDOT TO FURNISH
SUCH DATA ON 1/20/98.
IX. THE COURT ERRED IN REFUSING TO ALLOW APPRAISER FRED LEWIS TO
TESTIFY IN REBUTTAL OF MDOT'S COMPARABLE SALES DATA #1, WHICH WAS
SOLD 3/2/95, DEED BOOK 1298 PAGE 580, WHEN LEWIS WAS FAMILIAR WITH
THE PROPERTY AND WOULD OFFER PROOF THAT IT WAS NOT A
COMPARABLE SALE OF PROPERTY.
X. THE COURT ERRED IN ALLOWING INTO EVIDENCE COMPARABLE SALES
DATA #1 AS STATED ABOVE.
¶30. In Issue VI, the Browns argue that they were not allowed to cross examine the MDOT appraiser
about property used by MDOT for its appraisal, when it was sent to the Browns as discovery.
¶31. MDOT contends that one of the comparables sent by counsel for MDOT was the wrong comparable.
Further, MDOT contends that the trial court was correct in refusing to allow counsel for the Browns to
cross-examine MDOT's appraiser about the comparable which was not used by the appraiser.
¶32. Generally, the admission or exclusion of testimony based on relevancy is within the discretion of the
trial judge, and this Court will reverse only if it finds that an abuse of discretion has occurred. Mississippi
Transportation Comm'n, v. Fires, 693 So. 2d 917, 920 (Miss. 1997); Terrain Enter's. Inc. v.
Mockbee, 654 So. 2d 1122, 1128 (Miss. 1995).
¶33. In this case, the trial judge stated that there were only two comparables used and that the subject
comparable was not one of them. Further, the judge sustained the objection to the cross examination and
limited it to the comparables that were introduced. However, the trial judge did allow counsel to make a
proffer on it.
¶34. By limiting the cross-examination on comparables to the ones introduced, the trial court did not abuse
its discretion.
¶35. In Issue VII, the Browns argue that the court erred in allowing MDOT to use the property sold on
February 22, 1996, when the comparable data was not furnished until the day of trial in violation of the
court order to furnish the data on January 20, 1998.
¶36. Although the Browns objected to the comparable of February 22, 1996, counsel later accepted it.
Further, the Browns' appraiser used the same comparable. This issue is without merit.
¶37. In Issue IX, the Browns argue that the court erred in not allowing Lewis, their appraiser, to testify in
rebuttal of MDOT's comparable sales data (1) when he was familiar with the property and would offer
proof that it was not comparable. However, during a proffer made by the Browns, the appraiser testified
that he would not use the comparable in his appraisal because it is inferior. Counsel for the Browns cross-
examined the MDOT appraiser about comparable (1) in front of the jury. It was the jury's province to
determine the reliability of the comparable offered by MDOT. It was error to deny the landowner's expert
testimony concerning the value of the comparable used by MDOT's expert. It appears that the jury award
was quite close to the value of the loss according to the Brown's appraisal. The small difference would
indicate that the exclusion of that testimony was harmless. Such an error hardly justifies the expense of a
new trial.
¶38. In Issue X, the Browns argue that the court erred in allowing into evidence comparable (1) but no
evidence was offered other than the testimony of their expert disagreeing with the use of the comparable.
This issue is without merit.
XI. THE COURT ERRED IN REFUSING TO ALLOW EVIDENCE OF MOVING AND
RELOCATION EXPENSES.
¶39. The Browns contend that the court erred in refusing to allow evidence of moving expenses. During trial
the Browns attempted to present evidence about relocation expenses. However, the trial judge refused but
allowed counsel to make a proffer. During the proffer, counsel stated that Mrs. Brown was prepared to
testify that there was an estimate for $15,500, that each item in her business had to be wrapped and that
she made trips to move the items. The Browns did not produce an actual bill of the cost of moving, nor was
there a mover there to testify about the estimate. Actual expenses were not produced by the Browns.
However, Mrs. Brown's testimony concerning the value of her efforts should have been allowed. As the
whole question of relocation expenses was not before the court, the failure to allow this testimony is
harmless error.
XII. THE COURT ERRED IN REFUSING TO ALLOW THE BROWNS APPRAISER,
LEWIS, TO TESTIFY AS TO THE EFFECT OF THE CURB BEING PLACED BY MDOT
AND ITS FURTHER EFFECT ON THE AFTER VALUE OF BROWNS PROPERTY.
¶40. The Browns argue that the trial court erred in not allowing the appraiser to testify concerning
placement of the curb on the property and its further effect on the property. However, the Browns failed to
give support for their argument. Absent authority in support of an assignment, we will not consider the
assignment. Ellis v. Ellis, 651 So. 2d 1068, 1073 (Miss. 1995).
XIII. THE COURT ERRED IN REFUSING TO ALLOW EVIDENCE BY THE BROWNS
OF THE PROPERTY'S UNSALABLENESS.
XIV. THE COURT ERRED IN REFUSING TO ALLOW HAZEL BROWN TO TESTIFY
IN DETAIL OF HER FAMILIARITY WITH REAL ESTATE AND SIMILAR
PROPERTIES.
XV. THE COURT ERRED IN REFUSING TO ALLOW WENDELL BROWN TO
TESTIFY IN DETAIL OF HIS FAMILIARITY OF VARIOUS SIMILAR PROPERTIES
OF WHICH HE HAD KNOWLEDGE AND ESPECIALLY ABOUT THE CONDITION OF
THE PROPERTY NEXT DOOR WHICH HAD UNDERGROUND GASOLINE TANKS
AND TWO BUILDINGS THAT HAD EXTENSIVE FIRE DAMAGE WHICH GREATLY
REDUCED THE VALUE.
XVI. THE COURT ERRED IN RESTRICTING THE LATITUDE OF BOTH BROWNS
TESTIMONY.
¶41. The Browns seem to argue that they were prevented from establishing their expertise in real estate and
that their testimony was restricted. Again, the Browns have failed to support their arguments with any
authority. Therefore, we will not consider these arguments.
XVII. THE COURT ERRED IN GRANTING MDOT INSTRUCTION P-6.
¶42. The Browns argue that with instruction P-6, the jury was instructed to disregard their testimony even
though Wendell Brown had extensive experience in appraising properties. The Browns cite Trustees of
Wade Baptist Church. v. Mississippi State Highway Comm'n, 411 So. 2d 761, (Miss. 1982), to
support their position.
¶43. It is settled in eminent domain practice that a landowner may give his opinion of the fair market value
of his property. Potters II v. State Highway Comm'n of Mississippi, 608 So. 2d 1227, 1235 (Miss.
1992); Mississippi State Highway Comm'n v. Spencer, 209 So. 2d 821, 824 (Miss. 1968);
Mississippi State Highway Comm'n v. Magee, 186 So. 2d 238, 239 (Miss. 1966). This does not,
however, mean the landowner can get on the witness stand and say anything he wants. Properly
understood, the rule exempts the landowner from showing that he possesses the qualifications necessary in
law to be accepted as an expert witness. See M.R.E. 702. It proceeds on the premise that the landowner
has acquired a unique view of the property and that he can and ought be allowed to share this view with the
jury. Because landowners ordinarily are not experts and trained in the field of property valuation, we do not
hold them to precise modes of articulation of the way in which they arrived at the values they give. Nothing
in this rule, however, empowers a landowner to present an opinion based upon legally irrelevant factors.
Potters, 608 So.2d at 1235.
¶44. The following instruction P-6 was given:
The Court instructs the jury that a landowner may testify to the before and after value of his land
without showing he has the same qualifications necessary under the law to be accepted as an expert
witness. This does not mean, however, that the landowner may get on the witness stand and say
anything he wants.
For the members of the jury to find the landowners testimony of value to be of any assistance, the
landowner must first establish by competent facts not conjecture or supposition, his substantial
familiarity with the fair market values of properties of the type in issue and a like familiarity with the
property in issue.
The mere opinion of a landowner as to the value of or damages caused to his property is of little use
unless he shows familiarity with the type of land in issue or gives some evidence on which he bases his
fair market value testimony. Unless the landowner provides the jury with any substantial evidence to
support his testimony, then you the members of the jury may choose to disregard the landowner's
testimony on fair market value of his property.
¶45. Instruction P-6 appears to limit the weight that the jury should give the testimony of the landowners.
Further, the second and third paragraphs seem to suggest that the landowners should be held to the precise
mode of articulation of which they arrived at the values as that of an expert.
¶46. Instruction P-6 did not instruct the jury to disregard the Browns' testimony. The instruction seems to
tell the jury that the Browns were attempting to give semi-expert opinion on land values. The Browns were
not experts and were not required to adhere to the requirements for experts. As owners, however, they
could testify to the before and after value of their property. It was error to give Instruction P-6 as the
instruction appears confusing. However, the error was harmless and does not justify reversal. "No trial is
free of error; however, to require reversal the error must be of such magnitude as to leave no doubt that the
appellant was unduly prejudiced." Davis v. Singing River Electric Power Ass'n, 501 So. 2d 1128,
1131 (Miss. 1987).
¶47. The Browns' testimony never established a basis upon which the jury could base a verdict. The
measure of damages in a eminent domain case is the difference between the fair market value of the
property before the taking and the fair market value of the property after the taking. Blanton v. Board of
Supervisors of Copiah County, 720 So. 2d 190, 193 (Miss. 1998). Although both of the Browns
testified as to their opinion of the value of the property before the taking, neither testified as to the fair
market value of the property after the taking. Regarding the value of the remainder property, Hazel Brown
stated "Not very much, being that I'm unable to do a lot with it." Posed the same question, Wendell Brown
simply agreed that the property was almost valueless.
¶48. However, the Browns expert appraiser salvaged their case because he testified that the before value
of the property was $110,250 and the after taking value was $48,750. Notwithstanding the Browns expert
appraisers testimony, their attorney argued to the jury that the proper verdict would be arrived at by using
the Browns expert's opinion of the before taking value in the amount of $110,250, but the jury should then
use the MDOT's appraisers opinion that the after value taking was only $32,750 and they should then
return a verdict for $77,500. The jury awarded an amount that fell in between the values submitted by the
Brown's appraiser and that submitted by the MDOT appraiser. Thus the granting of Instruction P-6 was
harmless.
¶49. In addition, considering all the instructions as a whole, the jury was adequately instructed. Defects in
specific jury instructions do not require reversal where all instructions taken as a whole fairly, although not
perfectly, announce applicable primary rules of law. Snapp v. Harrison, 699 So. 2d 567, 569 (Miss.
1997). There is no merit to this issue.
XVIII. THE COURT ERRED IN ALLOWING MDOT TO CROSS EXAMINE LEWIS
ABOUT HIS ORIGINAL APPRAISAL WHICH INCLUDED THE HOUSE THEREIN
AND HIS AFTER VALUE OF $75,000 OF THE PROPERTY AND NOT ALLOWING AN
EXPLANATION BY LEWIS WHEN IN FACT THE MDOT HAD OPENED THE DOOR
TO THE COURT'S ORDER IN LIMINE THEREIN.
¶50. The Browns argue that the court erred in allowing MDOT to cross-examine Lewis about his original
appraisal and not allowing an explanation by Lewis. This assignment of error is without merit. The record
reveals that MDOT cross-examined Lewis about the original appraisal without objection from the Browns,
and further, the trial judge required MDOT to allow an explanation about the original appraisal.
XIX. THE COURT ERRED IN ALLOWING SCHOOL TEACHERS, WHO ARE EITHER
EMPLOYEES OF THE STATE OF MISSISSIPPI, OR PREJUDICED TO WANT MDOT
TO WIN BECAUSE OF THEIR STATE PLANS, ON THE JURY.
¶51. The Browns failed to offer any argument as to how the court erred in allowing school teachers on the
jury panel. Further, the record reveals that both parties accepted the jury. Therefore, this assignment of
error is without merit.
XX. THE COURT ERRED IN NOT ORDERING THE REQUESTED ADDITUR OR IN
THE ALTERNATIVE, A NEW TRIAL.
¶52. The Browns argue that the court erred in not granting the requested Motion for Additur or in the
alternative a New Trial based on counsel's argument in that motion.
¶53. In reviewing a trial court's grant or denial of an additur, this Court's standard of review is limited to an
abuse of discretion. Maddox v. Muirhead, No. 97-CA-01152-SCT,1999 WL 191698 (Miss. Apr. 8,
1999); Rodgers v. Pascagoula Pub. Sch. Dist., 611 So. 2d 942, 945 (Miss. 1992); State Highway
Comm'n v. Warren, 530 So. 2d 704, 707 (Miss. 1988).
¶54. In determining whether the trial court abused its discretion, we ask whether the verdict of the jury is
"so paltry as to evince bias, passion or prejudice." Id.
¶55. In this case, the jury returned a verdict of $57,365. This amount is between the values presented by
the parties' expert witnesses and thus is not so inferior as to evince bias, passion, or prejudice by the jury.
The trial court did not err in denying an additur or a new trial.
XXI. THE COURT ERRED IN SUBORNING THE PERJURIOUS TESTIMONY OF THE
MDOT APPRAISER, DANIEL H. LOFLIN, AND ALLOWING THE MDOT COUNSEL,
GARY WHITE TO SUBORN THE PERJURY AND OBSTRUCT JUSTICE.
¶56. The Browns argue that the court suborned the perjurious testimony of the MDOT appraiser and
allowed MDOT counsel to suborn the perjury and obstruct justice. However, the Browns do not support
their argument with any authority and further, counsel for the Browns failed to raise this issue in their motion
for new trial. Also the record reveals that there was no objection by counsel for the Browns to the alleged
perjurious testimony. Therefore this assignment of error is without merit.
CONCLUSION
¶57. The Browns fail to cite supporting authority for most of their numerous points of error. Those
unsupported arguments are without merit. The Browns are entitled to some relocation expenses, however,
the proper procedure is to appeal to the court that would have had jurisdiction if the cause were in eminent
domain from such decision at any time within 20 days after actual notice to the aggrieved party. Although it
was error for the lower court to grant instruction P-6, it was harmless error because the jury fairly weighed
all of the evidence and granted an award of $57,365, which fell between the value of $61,500 offered by
the Browns' appraiser and $54,000 offered by the MDOT appraiser. Therefore, the judgment of the lower
court is affirmed.
¶58. JUDGMENT AFFIRMED.
PRATHER, C.J., SULLIVAN AND PITTMAN, P.JJ., BANKS, McRAE,
MILLS, WALLER AND COBB, JJ., CONCUR.