# FILED June 2, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk CITY OF LAFAYETTE, ) ) Appeal No. Plaintiff-A ppellant, ) 01A01-9901-CV-00056 ) v. ) ) Maco n Circuit MARK & RUBY HAMMOCK, ) ) Defendants-Appellees. ) )

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF MACON C OUNTY AT LAFAYETTE, TENNESSEE THE HONORABLE BOB BY CAPERS, JUDGE

LISA COTHRON STINNETT 100 E. Locust street Lafayette,

TN 37083 Attorney for Plaintiff-Appell ant WILLIAM JOSEPH BUTLER and E. GUY HOLLI

MAN FARRAR & HOLLI

MAN 102 Scottsvill

e Highway P.O. Box 280 Lafayette,

TN 37083 Attorney for Defendant s-Appellees

AFFIRMED AND REMANDED

HERSCHEL P.FRANKS, JUDGE CONCUR: GODD ARD, P.J. CAIN, J.2 O P I N I O N

In its eminent

domain proceeding, t

he City of Lafay

ette (City

) took a small stri p of Mark and Ruby Hammock’s land along the Cit y’s right -of-way for an existing s treet.

The Trial Court awarded damages of $1, 500.00 for the land t aken, and incidental

damages to the remainder in the amount of $11,000. 00. The City has raised the fo llowing issu es on app eal: 1. Whether the Court abused i s discretion by interf ering with the presentation of the City’ s case? 2. Whether excessive weight was given to the testimony of an unlicensed real estate broker? 3. Whether the Court erre d by admitti

ng as an expert on land valuation, a

real estat

e broker who was not licensed as an appraiser, and who did not follow accepted a ppraisal techniques in ar

riving at t

his opinion of val

ue? 4. Whether there w as any credible material evidence to s upport the Court’s rul

ing as damage value. Essentiall

y, the Cit y argues that

the Trial Judge,

by questioni

ng witnesses “interfered” w ith the presentation of its case. Our rev iew of the record does establish that the Trial Judge was proactive in questioning witnesses.

Tenness ee Rules o f Eviden ce, Rule 61 4(b), perm its the Judge to interrogat

e witnesses, and i

t does not appear t

hat the Judge’s questioning prevent ed counsel fr om askin g any question s of the w itnesses, nor w as any objectio n made to the procedures. Judges have broad discr etion in conduct

ing trial s. However, the better pract

ice is to per

mit counsel to pr

esent his or her

evidence without interrupt ion, and if the

Court then feels fur

ther informati

on should be developed,1 There is nothing in the record t

o indicate that

the witness w

as “an unlicen

sed real estate broker”.
3 the Judge then can further interrogate the witness.

Since the City

was not denied the right to offer evide nce or question its witnesses, w e find this issu e to be with out merit.

The Ha mmock s called J.T. S hrum as a n expert w itness, and the City asserts t hat it was error

for the Court to al

low Shrum to testif

y as an expert , and furt her t hat “ exce ssiv e we ight ” wa s giv en to his te stim ony.

The weight to be given to t estimony i s essential

ly for the trier of fact to determ ine. See Kellerman v. Food Lion, I nc. , 929 S.W.2d 333, 335 (Tenn. 1996)
. The witness test ified that he

had fifteen years experience a s a real estate broker 1 in Macon County, had persona lly bought

and sold real est

ate in that county for seve

ral years, and that he had l ong been familiar wit

h the particular piece of p roperty own ed by the Ha mmock s. He also sta ted that he h ad previou sly testified and been accepted as an exper t witness on land va

luations by

numerous courts, including that t

rial court and other tri al courts i

n the distri

ct, as well as

the Federal Distri

ct Court. The Trial

Judge properly

permitted thi s witness to offer opinio ns on v alue on the issue s befo re the C ourt.

The City relies o n Tenne ssee Cod e Anno tated §62-3 9-103, as a basis to disqualify Sh rum from testifying becau se he doe s not hold a real estate appraiser’s lice nse. We c annot agre e. T.C.A. § 62-39-33 5 allows a real estate broker to offer an opi

nion of value in the

courts of this

State. As to the final i ssue, the amount of j ust compensation i s a question of fac t for the trier of f act to de termine
. Schook & Fletcher Supply Co. v. City of4

Nashville , 47 Tenn. App . 339, 338 S.W.2d 237, 238-243 (1 960).

We conclude the evidence does not preponderate agai

nst the awards of dam ages, T .R.A.P . Rule 1 3(d).

The property owner t

estified t hat the fair mar

ket value of the property ac

tually taken was $2,000.00 and the City’s appr

aiser test ified that t

he value was $550.00. The owners te stified t hat the remainder

of their proper

ty was damage d betwee n $20,00 0.00 and $ 30,000.00 and their ex pert Shrum offered h is opinion that t

he remainder of thei

r property

had diminished in val

ue of $19,500.00, which amount did include t he property a

ctually taken. The City ’s appraiser was of the opinion ther

e were no incidental

damages, although pl aintiff offer ed proof of severe flooding and er

osion, due to t

he City’s pr

oject, and reduced access to the remain der of th eir prop erty.

Hammock testified that after the Cit

y finished t

he project, t

here had been sev ere erosion , and since th e comple tion of the p roject, water h ad floode d his driveway and accumulat ed near the renta

l house on the propert

y on several occasions . He testified th at prior to the tak ing he had two sepa rate drivew ays to his property , one to his home and the other to the r

ental house. The pr

oject had restrict ed access to the pr

operty, i.e., one

shared driveway a

nd the City’ s erection of a guard rail had e ssentiall y eliminat

ed any road front

age on the undeveloped portion of his pr

operty, which could have been used as a bui lding lot. We note that Shrum, in arrivi

ng at his opini on of value, took i nto account the fl

ooding testified to by the owner,and he was further of the opi nion that the lack of access to the vacant lot rendered it no more than a “garden spot” in his calculation of values.

We affirm the awards of damages made by t he Trial Court and remand w ith costs of the appeal asse ssed to the a ppellant.5 ________________________ Herschel P. Franks, J.
CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William B. Cain, J.