Gateway United Methodist Church of Gulfport, Missi v. Mississippi Transportation Commission ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CA-00638-COA
GATEWAY UNITED METHODIST CHURCH OF APPELLANT
GULFPORT, MISSISSIPPI
v.
MISSISSIPPI TRANSPORTATION APPELLEE
COMMISSION
DATE OF JUDGMENT: 04/16/2013
TRIAL JUDGE: HON. GASTON H. HEWES JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY SPECIAL COURT OF
EMINENT DOMAIN
ATTORNEY FOR APPELLANT: VIRGIL G. GILLESPIE
ATTORNEY FOR APPELLEE: CHRISTOPHER M. HOWDESHELL
NATURE OF THE CASE: CIVIL - EMINENT DOMAIN
TRIAL COURT DISPOSITION: APPELLEE GRANTED RIGHT OF
IMMEDIATE TITLE AND POSSESSION OF
PROPERTY; APPELLANT AWARDED JUST
COMPENSATION IN THE AMOUNT OF
$46,450 FOR ACQUISITION OF ITS
PROPERTY
DISPOSITION: AFFIRMED: 09/23/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. The Mississippi Transportation Commission (MTC) filed a “Complaint to Condemn”
in the Special Court of Eminent Domain in Harrison County, Mississippi, against Gateway
United Methodist Church (Gateway) in Gulfport, Mississippi. The suit was initiated because
MTC was unable to reach an agreement with Gateway for the acquisition of .12 acres of land
along a sight flare for the improvement of an intersection at United States Highway 49 and
South Swan Road. The special court granted MTC the right of immediate title and
possession of the property at issue under Mississippi Code Annotated section 11-27-83 (Rev.
2004). After discovery was conducted, MTC filed a motion in limine and supplemental
motion in limine to preclude any testimony on damages to the remainder of the property
based upon restrictions of access along the sight flare. The court granted the supplemental
motion in limine, and a non-jury trial occurred. The court entered a judgment consistent with
MTC’s statement of values, finding just compensation for the acquisition of the property in
the amount of $46,450. From this judgment, and the order granting the motion in limine,
Gateway appealed. Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. In December 1990, Gateway purchased a 5.7 acre parcel of property located on the
northeast corner of U.S. Highway 49 and South Swan Road in Gulfport, Mississippi.1 The
church building and its facilities are located on the eastern side of the property, accessed by
South Swan Road.2 On September 29, 2011, MTC filed “quick take” eminent-domain
proceedings against Gateway in Harrison County, Mississippi. MTC desired immediate title
and possession of .12 acres of property for safety improvements to the intersection of
1
The property included all of Block 20 of the original Lyman Subdivision, which lay
east of Highway 49. The original plat for the Lyman subdivision was filed in 1901.
Between 1901 and the date of the filing of this lawsuit against Gateway, there were several
acquisitions by the MTC.
2
Gateway claims it made the decision to build the church and its facilities on the east
side of the property, so it would have a 1.8-acre tract available to sell as a commercial parcel
along Highway 49.
2
Highway 49 and South Swan Road. A plat entered into evidence shows an area designated
“no access” runs across a diagonal portion of the western boundary of the property along
Highway 49, which is the “sight flare” for the intersection of Highway 49 and South Swan
Road.3
¶3. In November 2011, in response to an ore tenus motion by MTC, the special court
issued an order granting MTC the right of immediate title and possession of the property.
MTC deposited funds of $169,500 in a court registry for compensation and damages
determined by a court-appointed appraiser, pending resolution of the matter. Gateway claims
any access to Highway 49 has now been taken by MTC, and all access to the church property
must be from South Swan Road. Gateway contends it acquired access to Highway 49 when
it bought the property, and before the taking by MTC, it had full rights to access the highway
for 357.45 feet. After the taking, Gateway claims it has only 57.5 feet in the northwest
corner of the property for access to Highway 49, which does not meet MTC specifications
for an entrance to the property, or county requirements for the width of a street or right-of-
way.4
¶4. After discovery concluded, in November 2012 and January 2013 respectively, MTC
filed a motion in limine and supplemental motion in limine to preclude any testimony on
3
A deed from 1959 was entered into evidence that MTC claims established the sight
flare.
4
However, the record shows the church’s current access to the property is on South
Swan Road, and there has never been any attempt to gain access to Highway 49.
3
damages to the remainder of the property based upon restrictions of access along the no-
access sight flare.5 In his deposition, Allen Purvis, Gateway’s expert real-estate appraiser,
testified the property suffered $151,054 in damages as a result of MTC taking the no-access
sight flare. In the motion, MTC argued that Gateway had no access rights available prior to
the condemnation; so no access rights were being acquired, and thus there could be no
damages.
¶5. MTC also offered, in support of its motion, the testimony of David Gray, the senior
permit officer for the Mississippi Department of Transportation. He stated that as of
September 29, 2011, Gateway would not have been eligible for a permit allowing access to
the property along the no-access line described in the complaint. Gray further explained that
because the no-access line was the same as the sight-flare line, a permit would be denied to
prevent traffic from pulling out into the intersection, as well as to prevent obstacles
interfering with the sight view of traffic at the intersection. In short, Gray testified that
granting a permit within a sight flare would be a safety hazard. He was also not aware of any
permit being granted along any sight flare in Harrison County on Highway 49.
¶6. Gateway responded that if it had no right to access, then MTC had no need to
condemn the property. Gateway claimed that nothing in any of the deeds entered into
evidence indicated MTC had taken access to Highway 49. Further, it argued that if the
property had been “taken” by the MTC prior to its purchase by the church via the 1958 deed,
5
At a hearing, MTC’s counsel noted there was no dispute regarding the value of the
.12 acres at issue, but only the damages to the remainder.
4
there was no due process because no just compensation was ever paid to the church.
Gateway claimed the parcel has had access to Highway 49 or its predecessor road (Fifth
Avenue) since 1901.
¶7. On March 28, 2013, the special court granted MTC’s supplemental motion in limine,
and agreed with MTC that since no access was available to Gateway before the taking, no
access rights were being acquired. A non-jury trial ensued on April 16, 2013.6 MTC’s
expert appraiser, Jamie Shotts, valued the property before the taking at $3,536,400, and after
the taking at $3,489,950, determining just compensation to be $46,450.7 Gateway proffered
the testimony of its appraisal expert, Purvis, about damages due to the loss of access to
Highway 49. He appraised the property before the taking at $1,710,816 and after the taking
at $1,518,163, determining just compensation to the church to be $192,653 for acquisition
of the property and damages. Of this figure, Purvis assigned damage to the remaining
property of $151,054 as a result of taking the “no access” area along Highway 49, and a land
value of $41,599.
¶8. The court entered a judgment accepting MTC’s amount of just compensation of
$46,450. Also confirmed was the November 2011 order granting title and possession of the
property at issue to the MTC for public use. Gateway timely appealed both the April 2013
judgment and the March 2013 grant of MTC’s supplemental motion in limine.
6
The parties waived a jury trial.
7
This figure represents land value only, and does not include damages to the
remainder.
5
STANDARD OF REVIEW
¶9. An appellate court’s standard of review regarding the admission or exclusion of
evidence is abuse of discretion. There is no abuse of discretion by the trial court in granting
a motion in limine if: “(1) the material or evidence in question will be inadmissible at trial
under the rules of evidence; and (2) the mere offer, reference, or statements made during trial
concerning the material will tend to prejudice the jury.” Ware v. Entergy Miss. Inc., 887 So.
2d 763, 766 (¶6) (Miss. 2004) (internal citation omitted). For questions of law, the standard
of review is de novo. Id.ANALYSIS
¶10. Gateway argues the special court erred in disallowing its expert witness Purvis’s
appraisal testimony, which would have shown damages of approximately $151,054 to the
remainder of the church property for the MTC’s taking of access along Highway 49.
Gateway claims the MTC has taken Gateway’s only access to Highway 49 without just
compensation in violation of due process under Article 3, Section 17 of the Mississippi
Constitution.
¶11. It has long been established by the Mississippi Constitution that “it is beyond the
power of the state or any corporation to take or damage the property of any person, even for
a public use, without due compensation being first made.” Hill v. Woodward, 100 Miss. 879,
889, 57 So. 294, 295 (1911). In determining just compensation in eminent-domain cases, the
Mississippi Supreme Court has created the following formula: “When part of a larger tract
of land is taken for public use, the owner should be awarded the difference between the fair
6
market value of the whole tract immediately before the taking, and the fair market value of
that remaining immediately after the taking . . . .” Miss. State Highway Comm’n v. Hillman,
189 Miss. 850, 866, 198 So. 565, 569 (1940). Evidence of fair market value is established
as of the date of the filing of the complaint. Miss. Code Ann. § 11-27-19 (Rev. 2004).
However, a landowner is not entitled to compensation under the Mississippi Constitution for
diminution of access where the action taken by the State constitutes a reasonable exercise of
police power and where the landowner is left with reasonable access. Maples v. Miss. State
Highway Comm’n, 617 So. 2d 265, 270 (Miss. 1993) (citing Miss. State Highway Comm’n
v. Hale, 531 So. 2d 623, 626 (Miss. 1988)).
¶12. Gateway maintains that the valuable right of access to Highway 49 has never been
purchased or acquired by MTC before the instant taking, and that the just compensation MTC
is required to pay for the taking should include damages for the loss of access. Gateway
states that when the MTC acquired the “sight flare” parcel in a deed dated from 1959, there
was no such thing as limited or no-access highways; therefore, the MTC could not have
acquired any access rights at that time.8
¶13. MTC counters that there were never landowner access rights to Highway 49 along the
described “no access sight flare line”; therefore, there was no change in access rights after
the taking. Accordingly, the court did not abuse its discretion in limiting testimony on
damages to the remainder of the church property. MTC claims no just compensation can be
8
Gateway claims the property originally had access on its western edge along Fifth
Avenue, which is now Highway 49.
7
awarded except as to the .12-acre tract, for which Gateway was awarded $46,450.
¶14. At the non-jury trial on this matter, Gateway made an offer of proof through its
appraiser, Purvis, who opined that the amount of total compensation due Gateway was
$192,653, with $151,054 of that amount as damages to the remaining property.9 Gateway
maintains it must be compensated for its loss of access along Highway 49.
¶15. It is well established that “the abutting landowner on a conventional public highway
has a special right of access and user in the highway; and that right is a property right which
cannot be damaged or taken from him without due compensation.” Muse v. Miss. State
Highway Comm’n, 233 Miss. 694, 713, 103 So. 2d 839, 846 (1958). In Muse, however, the
Mississippi Supreme Court held that an abutting landowner is not entitled to compensation
for a reasonable exercise of police power. The Muse court explained:
[T]here is also a coexistent right belonging to the public, to use and improve
the highway for the purpose of travel; and the owner of the abutting land has
no absolute right, as against the public, to insist that the adjacent highway
always remain available for his use in the same manner and to the same extent
as when it was constructed. . . . [T]he abutting landowner’s right of access
and user are subject to the right of the state under the police power to regulate
and control the traffic on the highway in the interest of safety, and to restrict
in a reasonable manner entrances from abutting property.
Id. at 713-14, 103 So. 2d at 847 (emphasis added). Moreover, an “[a]ppellant cannot claim
damages for the claimed taking of a right that never existed.” Morris v. Miss. State Highway
Comm’n, 240 Miss. 783, 790, 129 So. 2d 367, 370 (1961).
9
Gateway’s appraised value of $41,599 for the .12-acre property was actually less
than MTC’s value.
8
An abutting landowner has no right to the continuation of the flow of traffic
past his property and the diminution in the value of land occasioned by public
improvements that diverts the flow of traffic past an owner’s property is not
compensable. Such changes are made in the exercise of the police power and
do not constitute the taking or damaging of a property right.
Id. at 789, 129 So. 2d at 369 (emphasis added).
¶16. Gateway claims that Muse is factually distinguishable to the instant case, as the Muse
taking dealt with a limited access highway instead of a conventional highway, without a sight
flare and with access to a service road, unlike here. Muse, 233 Miss. at 699, 103 So. 2d at
841. In Muse, the Mississippi Supreme Court held that the State Highway Commission had
a right to construct a median strip in a four-lane highway without payment of compensation
to the appellant for damages, even though the construction of the strip would restrict the
appellant’s right of access and cause inconvenience to the abutting property owners. Id. at
715, 103 So. 2d at 848. We find Muse analogous to the instant case in spite of these factual
distinctions. The condemned land in Muse was at all times under the control of the highway
authorities, and the abutting landowner’s access rights were subject to the right of the state’s
police powers for safety regulation. Id. at 713-14, 103 So. 2d at 846-47.
¶17. Gateway acknowledges the MTC’s authority to exercise its police powers to regulate
traffic and designate points of access. Gateway also concedes that if it wanted access along
the sight flare to Highway 49, it would have to apply for and obtain a permit from the MTC.
The evidence shows that Gateway would have been unable to obtain such an access permit
prior to the instant taking.
¶18. Gateway’s access to its property was from South Swan Road. The MTC’s permit
9
officer, Gray, testified in an affidavit that Gateway would not have been eligible for a permit
granting access to Highway 49 on the area designated “no access” along the sight flare
“because of the proximity of the property owned by the church to the intersection of
Highway 49 and South Swan Road.” Gray stated that granting any access to that portion of
the property would have created a safety hazard. Purvis, the appraiser for Gateway, testified
in his deposition that he “believed that no access restriction was a new restriction as to
preventing access there, and, therefore, believed that prior to that access was possible.”
Purvis based this belief on “the documents that described the take.” However, he admitted
that he did not investigate it, and did not admit to familiarity with the permitting process;
therefore, he had nothing upon which to base his findings. The appraiser for MTC, Shotts,
testified that “there was no difference in value of the improvements” as a result of the
acquisition.
¶19. Mississippi State Highway Commission v. Blackwell, 350 So. 2d 1325 (Miss. 1977),
is analogous to this case. In Blackwell, the MTC took a .05-acre tract of land and a drainage
easement from a 2.42-acre tract owned by the Blackwells. The jury awarded the Blackwells
$12,750. Similar to the present case, the land abutted Highway 49, and the MTC obtained
the land by deed from the Blackwells’ predecessors in 1958 for the purpose of widening the
highway and locating a sight flare at an intersection. Id. at 1325. In 1974, the MTC installed
barricades on the east margin of the flare, effectively cutting off the Blackwells’ direct access
to the highway. Id. at 1326. No permit for access had ever been applied for, not even by the
Blackwells’ predecessors in title. The Blackwell court noted that when the sight flare was
10
purchased, “the area became subject to Commission control under police powers.” Id. at
1327. The court reasoned that land acquired by the Commission through warranty deed, not
condemnation, gives the Commission “the same right to control the land as if it had
‘condemned’ the property.” Id. at 1328. The court in Blackwell held that it was error to
allow the Blackwells to introduce evidence concerning loss of access to the highway, and
ordered a retrial with that evidence excluded. Id.
¶20. Similarly, we find it was not error for the special court to preclude testimony on
damages to Gateway’s remaining property based on loss of access because Gateway did not
have the right of access along the sight flare in the before condition. Purvis’s assigned
damages to the property of $151,054 were based on the assumption that access rights were
being acquired along the sight flares. However, as the testimony of Gray and Shotts attests,
there was no change in access in the after condition of the property as compared to the before
condition. If there was no change in the access, there could be no compensation for damages
regarding loss of access. Additionally, Gateway retained access along South Swan Road and
along Highway 49 outside of the sight flare. Finally, the right of MTC to regulate entrances
into the highway under the police power is well established, and not a compensable taking.
Thus, the court did not abuse its discretion in disallowing testimony on damages to the
remainder.
¶21. THE JUDGMENT OF THE HARRISON COUNTY SPECIAL COURT OF
EMINENT DOMAIN IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ROBERTS, CARLTON, MAXWELL,
11
FAIR AND JAMES, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.
12