### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Novem ber 9, 1999 Session
TENNESSEE DEPARTMENT OF TRANSPORTATION v

.

JOHN H. WHEELER, SR., ET AL 

### . Appeal from the Circuit Court for Sequatchie County

No. 4086 Buddy D. Perry, Judge

No. M1999-00088-COA-R3-CV - Filed October 11, 2002

This appeal involves a

dispute between a farmer and

the Department of Transportation arising fr om the Department’s condemnation of a portion of his farm for a new hig hway and br

idge. Theparties agreed on the fa ir marke t value of the prope

rty taken but

d isagree d on the amount of incidental damages to the remai ni ng pr op er ty. Fo ll ow in g a tr ia l i n t he Ci rc ui t C ou rt fo r S eq ua tc hi e C ou nt y, a jury awarded the far

m owner $ 200,000 in

incident al damages. The D epartme nt asse rts on thi s appeal (1) that there is no evidence that the remaining property suff

ered incidental damages, (2) tha t the trial court erred by

permitting an u nl icensed real estate appraiser to off er an expert opinion regarding the value of the remaining property , and (3) that the evidence does not support the jury’s damage award. Whil e we hav e deter mined that t he tri al cou rt erre d by admit ting the o pinion testimonyof the unlicensed appraiser, we have determined that this error did not affect the judgment andthat the evidence supports thejury’s decision regardingthe existence and amount of incidental damages.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed

W IL LI AM C. K OCH , J R ., J., delivered the opinion of the court, in which B EN H. C ANT RELL , P.J., M.S., and W IL LI AM B. C AIN , J., joined.

Paul G. Summers , Attorne y General

and Repor

ter, and William E. Jame s, Sen ior Counse l, Chattanooga, Tennessee, for the a ppellant, Tennessee Department of Transporta tion.
L. Thomas Austin, Dunlap, Tennessee, for the appellees, John H. Wheeler, Sr., Nona C. Wheeler, Sally F. W heeler, N icholas L. Wheeler, Janna L . Wheeler Robbs, Jack M. Wheeler, Cindy A. Wheeler , Thurman

Davis, Elise Davis , Thurston Davis, a nd Aline D avis.

OPINION

I.

In November 1979, John and Nona Wheeler bought a 332-acre farm

adjacent to Brush Creek in no rt he rn Se qu at ch ie Co un ty. Mr. Wheeler, a life-long farmer , row cropped the land, raising corn, soy beans, and wheat. In Octobe r 1983, the Tennessee Department of Tra nsportation filed a condemnation proce eding in the Circuit Court for Sequatchie County see king to condemn 12.8861 The Department’ s condemnati on petit ion named othe r member s o f the Wh eelers’ family as defendan ts because they had a pr opert y i nter est in t he f arm. Fo r the sa ke of convenience, we willrefer to John and Nona W heeler as the

own ers of the pro perty.

2 One of the t

wo tract s south of Corri dor J was a 1 a -acre, tria ngular piece of pro perty.
-2- acres of the Wheelers’ farm to construct a two-lane hig hway re ferred to as “Corridor J.” 1 The tract taken by the

Department effectively

bisected the Wheelers’ farm. One 86.09 -acre tract wa s north of C orr ido r J, a nd t wo s epa rat e tract s to tal ing

233 acr es w ere south o f Corri dor

J. 2

The portion of the Corridor J project affecting the Wheelers’ farm inv olved not only the construction of a port

ion of the

tw o-lane, res tricted access undivided highway but also the construction of a 132-foot bridge spanning B rush Creek and the condemned property . In addition to the road

and bridge, the De

partmen t constru cted sev eral other improv ements to facil itat e drain age from one side of the road to another, including a triple box culvert

and a thirty-inch pipe

beneath the new road.
The damages portion

of the condemnation proceedings was not tried until May 1998, after the construction project had been completed. At issue in this proceeding were the fair market value of the 12.886 acres that

were actually

taken and the amount of incidental damages to the remainde r of the Wheelers’ farm. The parties stipulated at trial that the fair market value of the propert y actually taken was $18,040; ho wev er, they we re unable to agree on whe ther the remainder of the property ha

d been incidentally da

maged and, if so, how much these damag es were.
The Departm

ent insisted that t

he Wheelers’ farm was low-ly ing bottom land located in a flood plain and that the property had been subject to frequent flooding and the deposit of rock, sand, andgravel before the construction of the roadand bridge. I t asserted that the construction of the road andbridge

had cau sed little

additiona l damag e to the Wheelers’ farm, although it conceded (1) that the road and bridge caused the water to rise to a great depth on te

n acresof the pr

operty to the nor th of the road and

(2) that the improvements slightly inc reased the velocity

of the water

downstream from the bridge for approximately thirty feet

beyond the rig

ht of way. The

Department argued that th e p ro je ct ha d c au se d $ 5, 25 0 i n d am ag es to th e W he el er s’ re ma in in g p ro pe rt y.
The Wheeler s’ asses sment of th eir incid ental da mages d iffere d signif

icantly from t he Stat e’s. They insisted th at their p

roperty did not flo od very

often pr ior to the c onstr

uctio n of the road and bridge and that t

he flooding was gentle

when Brush Creek overran its banks. They asser ted that the construction of the road and bridge had cr eated a dam effect on Br

ush Creek causing more frequent flood ing. They

also asserted that the road improvements caused raging flood waters that deposited large quantitie s of stone s, sand, and gravel on their property a

nd that the bifurcation of their farm had caused t hem s ignificant severance damages. To support their claims, the Wheelers introduced photographs and a videotape recording de picting the effe cts of fou r separ ate floo ding inc idents occurring after the completion of the road and bridge . Mr. Wheeler testified that the effects of the constru ction of the ro ad and br idge ha d substant

ially decrea sed the f

arm’s va lue by $200,970 t

o $233,000.3 The Department bas es its argument on Tenn. Code Ann. § 62-39-103(a) ( 1997) which provi des, i n part, that

“[e] xcept as p rovided i n § 62-39-104 . . . it is un lawf

ul f or anyone t o solic it a n apprais al ass ignment , or prep are a n appraisal or an apprai sal repo rt relating to real esta te or re al pro perty in th is state, witho ut first obta ining a re al estate app raiser’s lic ense or certif icat e.” Accordi ng t o the st ate, the onlyexcept ion t o thi s re striction i s Tenn. Code Ann. § 62- 39-335 (1997), which permits l icensed real est ate brokers to test ify as expert witness es regarding the value o f prop erty.
-3- A jury returned a

verdict awarding the Wheelers’ $18,040 f or the 12.886 acres of prope rty actually taken and $200,000 in incidental damages. The trial cour t ap pr oved the verdict after denying the Department’s motion for a n ew trial or, in the

alterna tive, for a remittit

ur. On this appeal, the Department insists that the verdict must be vacated because the trial court erred by permitting the Wheelers to present inadmissible expert opinion evidenceregarding the eff ect of the construction of

th e r oa d a nd br id ge on th e v al ue of th ei r p ro pe rt y. The Department also asserts that the record contains no “ materia l or cre dible” evidence

of incide

ntal dama

ges to th e Wheele rs’ propert y and that the amount of the verdict was so excessive tha t it reflects the jury’ s passion, prejudice, and caprice.

II.

T HE A DMISSIBILITY OF THE W HEELE RS ’ E XPERT ’ S V ALUATI ON O PINI ON
The Wheelers’ proof consisted of the testimony of three persons in addition to Mr. Wheeler himself. One of these witnesses was Jerry Harris, the real estate broker who handled the sale of the propert y to the Wheelers in 1979. Sometime after this condemnat io n proceeding began in Nove mber 1983, Mr . Harris moved away from Tennessee and allowed his Tennessee lice nse as a realestat e broker to lapse. The Wheelers pro posed to c all Mr. Ha

rris not on

ly a s a fact

witness bu

t also to render an expert opinion regarding the eff ect of the construction of the road and bridge on the value of th e W he el er s’ re ma in in g p ro pe rt y.
The Department objected to allowing Mr. Harris to g ive a valuation opinion on the ground that state law

permitte d only

certifi ed real

e state appra isers and licensed real e state bro kers to apprais e the value of real property in Tennessee. The Department insisted that Mr. Harris wa s not competent

to render a valuation opinionbecause he was not license d in Tenne ssee as a real es tate broker at the time of trial. The Wheelers responded that Tenn. R. Evid. 702 effectively trumped the statutory licensure requirement and that Mr. Harris qualified as an expert based on his knowledge , skill, experience, and education. The trial c ourt overruled the Department’s objection, reasoning that Mr. Harris was competent to give an expert valuation opinion beca use he had been a

licensedreal estate broker in Tennessee in 1983 when the conde mnation proceeding was filed.

The Wheelers do not take issue with the Department’s argument on appeal that Tennessee statut es prohibit persons who are not licensed either as a ce rtified real estate appraiser or a s a real estate broker to give an opinion regar ding the value of real property locatedin Tennessee. 3 However, th eyins ist that Te

nn. R. Evid. 702 super

cedes th ese statu tes and pe

rmits tria l courts, in their discretion, to permit non-licensed persons to give a valuation opinion as along as they

demonstr ate that they are

qualified to do so basedon their knowledge, skill, experience, training, or education. To support their

position, th

ey cite dec isions fro m Mississipp i and West Virginia upholding a trial court’s decision

to permit unlicensed persons to testify as expert appraise rs. Watts v. Lawrence , 703 So. 2d 236 (

Miss. 1997) ; Teter v. Old Colony Co. , 441 S.E.2d 728 (W. Va. 1994).4 De spite its ori ginal assertion that the record conta ins no m aterial ev idenc e to sup por t the W heele rs’ claim for inci dental dam ages to their pro perty o n either th e nor th or so uth side of the ro ad, the De partm ent ap pea rs to co nced e in its brief that “the Defend ants’ [the Wheelers’] theory may not be i mplausible as to the r oad holding back flood waters

on the north side of t

he farm . . . .” In li ght of thi s concession, we wil l focus our attenti on on the evidence regarding the eff ect of the new road an d bridg e on t he Wheeler s’ propert y l yi ng sou th of

the road.
-4- The decision s of the c ourts in Mississippi and West Virginia are not relevant to Tennessee procee dings because the relationship between the rules of e vidence and contrary

statutory require ments in t hese two states differs from the relationship between the Tennessee Rules of Evid ence and contrary

statutory provisions. I

n both Mississippi and West Virginia, the rules o f evidence control over conflicting statutory requ irem ents. Miss. R. Evi d. 110 3; W. Va. R. Evid. 101; White hurst

v. State , 540 So. 2d 1319, 1323-24 ( Miss. 1989) ; State v. D err , 451 S.E.2 d 731, 743 ( W. Va. 1994). I

n Tennes s ee, how ever, statutory r equirements control over the Tennessee Rules of Evidence. Tenn. R. Evid. 101 clearly states that “[t]he se rulesshall go vern evi dence r ulings in all trial cou rts of Te nnessee except asotherwis e provided by statute or rules of the Supreme Court of Tennessee.” Applying Tennessee law, as we must, we conclude that pe rsons see kin g to give an expert opinion regarding the value of real property

located in Tennessee must meet bot h the speci fic statutory requirements of Tenn. Code Ann. § 62-39-103(a) a nd the general req

uirem ents of Tenn. R. Evid. 702 at the time they ar e c al le d u po n t o t es ti fy r eg ar di ng th ei r e xp er t o pi ni on . A cc or di ng ly, the trial court erred by

permitting Mr. Harris to give an expert opinion r egarding the value of the Wheelers’ farm because Mr. Har ris was no longer a licensed rea l estate broker when he testified.
Concluding that the tr

ial cour t erred by p ermitting

Mr. Harr is to give a valuation

opinion does notnecessarily

end the matter. Not every erroneous admission of evidence requires reversal. A final judgment should be set aside only when the error more pr obab ly th an not af fected the judg ment. Tenn. R. A

pp. P. 36(b ); State v. Hampton , 24 S.W.3d 823, 830 (Tenn. Crim. App. 2000); Keith v. Murfree sboro Livestock Market , 780 S.W.2d 751, 758 (Ten n. Ct. App. 1989). Whe

ther an e rror in admi tting evidence is sufficiently prejudicial to require reversal depends on the evidence’s substance , its relation to other evidence, and each case’s peculiar facts. Blankenship v. Sta te , 219 Tenn. 355, 360, 410 S.W.2d 159, 161 ( 1966). Aswe will discuss in our analysis of the evide ntiary support for the jury’s assessment of

the amount of the Wheelers’ incidental damages, we have concluded that the erroneous admission of Mr. Harris’s valuation opinion, more probably than not, had negligible effect on the jury ’s assessment of incidental damages in this case.

III. E VIDENT IARY S UPPORT FOR THE E XISTENCE OF I NCIDENTAL D AMAG ES
The Department argues that the rec ord contains no cre di ble material evidence that the construction of the road and bridge ca used flood-rel ated damage to t he Wheele

rs’ rema ining pr operty
on the south side of the new road. 4 It ins ists that th is court sho uld now dis count the Wheeler s’ evidence regarding the flooding on their prope rty

south of the new ro ad beca use it is inh

erently improbab le and is “absolutely at va riance with well-established and universally re

cognized physica

l laws.” While the Wheelers’ evidence rega rding flooding is certainly at odds with the testimony of the Department’s engineer, we do not find it to be impossible or palpably improbable.-5- A.

When reviewing the e

videntia ry foundati on of a jur

y’ s verdic t, our tas k

under Te nn. R. App. P. 13(d) is to

review t he reco rd to dete rmine whe

ther it c ontains any materia l evidence to support the jury 's verd

ict. We do n ot re -weigh the evidence. Barnes v. Goodyear Tire &Rubber Co., 48 S.W.3d 698, 704 (Tenn. 2000); Ross v. Vanderbilt Univ. Med. Ctr., 27 S.W.3d 523 , 530 (Te nn. Ct. App. 2000). Rather, we take the strongest leg itimate view of

the evide nce that favors t he verdi ct, Mills v. Solomon, 43 S.W.3d 503 , 507-08 (Tenn. Ct. A pp. 2000) ; Wood

s v. Herm an Wa lldorf &

Co., 26 S.W.3d 868, 874 (Tenn. Ct. App. 1999), and we a ffirm t he verdict if the record contains any material evidence to support it. Next Generation, Inc. v. Wal-Mart, Inc., 49 S.W.3d 860, 863 (Tenn. Ct. App. 2000).

When we use Te

nn. R. App. P. 13(d) to examine t he reco rd of a ju ry trial, we must keep

in mind that the responsibility for assessing the weight, faith, and credibility to be g iven the witnesses lies with the trier-of-fact and that the trier-of-fact's decisions on these ma tters must be given great weight on appeal. McCarley v. West Quality Food Serv., 960 S.W.2d 58 5, 588 (Te nn. 1998) ; Kim
v. Boucher

, 55 S.W.3d 551 , 555 (Te nn. Ct. App . 2001); Kinnard v. Taylor, 39 S.W.3d 120, 122 (Tenn. Ct. App. 2000). Accord ingly , we will neither r

e-eval uate the witnesse s' cre dibility

on appea l, Reynolds v. Ozark Motor Lines, Inc., 887 S.W.2d 822, 823 (Ten n. 1994); Grissom v. Metropolitan Gov't, 817 S.W.2d 67 9, 684 (Te nn. Ct. App . 1991), n or will we analy ze the con flicting evidenc e to determine where the truth lies. D.M. Rose & Co. v. Sny

der, 185 Tenn. 499, 508, 206 S.W.2d 897, 901 (1947 ); Goodman v. Balthrop Constr. Co., 626 S.W.2d 21, 24 (Tenn. Ct. App. 1981).
Despite Tenn. R. App. P. 13(d)’s deferential standard for revie wing the factual foundation of a jury’s ver

dict, the appellate courts are not required to “pa ssively sit by and al low pa tently impossible, incoherent, or perjured testimony to support a jury

verdict.” Lowe v. Preferred Truck Leasing, Inc. , 528 S.W. 2d 38, 41 (Tenn. Ct. App. 1975). Evidence is “material” for the pur poses of Tenn. R. App. P. 13( d) only if it is credible. Thus, when assay ing the evidentiary

support for a jury’s verdict, the appellate courts may disregard testimony

that ca nnot possib ly b e true, t hat is inheren tly unbeliev able, or

that is opposed to natural laws. Gilbreath v. Herring , No. 02A01-9311- CV-00239, 1994 WL 591766, at *4 (Tenn. Ct. App. Oct. 31, 1994) (No Ten n. R. App. P. 11 application filed); Nelms v. Tennessee Farmers Mut. Ins. Co. , 613 S.W.2d 481, 483 (Tenn. Ct. App. 1978).

Te stimonythat is entirely inconsistent with undisputed phy sical facts is one vari et y o f evidence that appellate courts may disregard. McCray v. Hug hes , 53 Te nn. App. 533, 538, 385 S.W.2d 124, 126 ( 1964); Gord on’s Transps., Inc. v. Bailey , 41 Tenn. App. 365, 402, 294 S.W.2d 313, 330 (1956). However, while this “phy sical facts rule” may be invoked in both criminal and civilproceedings, it should be used with great caution because of the risk of invading the province of the jury. State v. Hornsby , 858 S.W.2d 892, 895 ( Tenn . 1993). Under the phy sical facts rule, chal lenged testimony may be disregarded only

when it is inconsistent with “well-established and
u niversa lly recognized laws,” State v. Radley , 29 S.W.3d 532, 535 n.4 (Tenn. Crim. App. 19 99) ; Nelms v. Tennessee Farmers Mut. Ins. Co. , 613 S .W. 2d at 483, and when it is “inhe

rently improbab le and impossible of belief.” State v. Hornsby , 858 S.W.2d a t 895; Nashville, Chattanooga & St. Louis R.R . v. Justice , 5 Tenn. Civ. App. 69, 71 (1914) (holding that appellate courts may disregard impossible or palpably improbable testimony).-6- B.

The Department asserts that we should invoke the p hys ic al facts rule to disregard the testimonypresented by

the W heelers. As b est we ca n determ ine, the w ell-esta

blished a nd univer sally recogniz ed law s on which the Department relies consist of the “common knowledg e that creeks forming in mo un ta in s a nd de sc en di ng in to va ll eys ma y, during periods of heavy rain, become prone to flood andspill out ont

o lowland s. This is especially so in the winter and spring, as in this case.” Even if we we

re to tre at the pos sibility

that mounta

in stream s might ov erflow t h eir bank s d uring periods of heavy

rain as a “well-established and universally recognized phy sical law,” we do not find the testimony

offered by

the Wheel ers reg arding the flood

ing of th eir prop erty

to be enti

rely inconsistent with this proposition.

The Wheelers did not argue at trial that Brush Cree k never flooded t heir property be

fore the construction of the road and bridge. Their argument was simply that the construction of the road and bridge caused their property to be more prone to flooding. They also argued

that the velocity of the flood waters is greater than it had bee n in the past and that increased force of the f lood waters has resultedin incre ased damage to t heir pro perty . Their

evidence supporting these claims is not complete ly inconsiste

nt with any sort of natural law regarding

the behavior of mountain streams and, accord ingly , we dec line to invo

ke the physical fa

cts rule t o disreg ard it.

The Wheeler s presen

ted ey ewitnessaccoun

ts, photographs, and a videotape recor ding of the flooding both upst ream an d down strea m of th e new ro ad and bridge along with expert testimony regarding the incr eased ve locity of the wa

ter cau sed by

the const ruction. T his evidence showed flood waters eight to nine feet high cove ring the property

north of the road that had washed away a n existing tree line. It al so showed how the da

mming ef fect of the road and bridge cause

the water on the north side of the road to r un acros s the nort

h side of t he prope rty , down the

road, and onto the propert y on the south side of the road. The evidence also showed how the high water had pushed debris consisting

of rocksand pave

ment from

the road through the box culv ert and o nto the pr operty south of the road. All this evidence regar ding the flooding of the Whe elers’ p

roperty and the effects of the flooding was relevant to the Wheelers’ cla im for incidental damages and provi ded the jury with mate rial evid ence up on which t

o base itsverdict

.
In addition to the evidence regarding the flooding, the Wheelers presented material evide nce regarding the sever

ance damage to their far

m. Before the construction of the road, their farm was
a contiguous tract of land. Mr. Wheeler testified that working the fa rm was more difficult after the roadbisecte d it

into two tracts. He explained how he was required to leave his property

and travel down the new road to reach the rest o f his prop erty . He also describ ed how he

was req uired to d rill
a new well to serve the property north of the new road because the spring he had used prior to the construction of the road was on the prope rty south of the road. This evidence, like the evidence regarding the flooding, provided the jury with a satisfactory

evidentiary ba sis for awarding incidental damage s.5 As far as monetary damages are concerned, the “range of reasonab leness” is t he range of

damages betwee n the upper and lower

limits estab lished b y the evid ence

. Elli s v. White Frei ghtl iner Corp. , 603 S.W .2d 125, 126 (Tenn. 198 0).
-7- IV. T HE A MOUN T OF THE I NCIDENTAL D AMAG E A WARD

Fi na ll y, the Department takes issue with the amount of th e ju ry’s ver di ct. It

asserts that the $200,000 award of incidental damages is so excessive that it reflects the jury ’s passion, prejudice, andcaprice. After considering the record as a whole, we have determined that the admission of the valuation evidenc e offer

ed by the rea l estate broker who was no longer licensed in Tennessee , more probably than not, did not influence the amount of the incidental damage awar d. After disregarding this evidenc e, we ha

ve deter mined tha

t the incid

ental da mage a ward is w ithin the ran ge of reasonableness established by the competent evidence.

A.

The proper measure

of incide ntal dama ges to a remai ning t ract of

real pr opert y followi ng a partial taking is the declinein the fair market value of the remaining pr operty ca used by the ta king. City of Memp his v. Hood , 208 Tenn . 319, 327, 345 S.W.2d 88 7, 891 (19 61); Shelby County v. Kingsway Greens o

f A m., Inc. , 706 S.W.2d 634, 638 (Tenn. Ct. App. 1985). The amount of incidental damages to be awarded is a jury question, and unless the award is “shown to be wholly unfair and unreasonable,” it will not be disturbed on appeal. Davidson County Bd. of Educ. v. First Am. Nat’l Bank , 202 Tenn. 9, 22, 301 S.W.2d 905, 911 (1957). In condemnation cases, a s in other civilcases, we must take the strongest legitimate view of th e e vi de nc e f av or in g t he pr ev ai li ng pa rt y, discarding the contrary

evidence, and allow all reasonable infer ences to uphold the jury ’s ver dict. Smith Count

y v. Eath erly , 820 S.W.2d 366, 369 (Tenn. Ct. App. 1991).
Damag e awar

ds incondemnation cases cannot outstrip the evidence. The amount of

these awards must be based on the evidence presented and c annot be the result of the jur y’ s pass ion, prejudice, or caprice. Shelby County v. Mid-South Title Co. , 615 S.W.2d 6 77, 680-8 1 (Tenn. Ct. App. 1980); State ex

rel. S haw v. Shofner , 573 S.W.2d 169, 174 (Tenn. Ct. App. 1978). Ac co rd in gl y, appellate courts will decline to affirm a damag e award that is bey ond any reasona ble view of the evidence. Magness v. B. Hitt Elec. Co. , 604 S.W.2d 44, 46 (Tenn. 1980). However , when the credible evidence establishes a “rang e of rea sonableness” 5 for the damages in a jury case, the appellate courts will not disturb a jury’ s damage award if it falls within the range of
reasona bleness because “it is the exclusive provi nce of t he jur y to asses s dama ges wit hin t he range of reasonableness established by the credible proof. Smith v. Shelton , 569 S.W.2d 421, 427 (Tenn. 1978).

B.

Three witnesse s testifie d about the diminished

fair market value of theWheelers’ remaining pr op er ty. Mr. Wheel er testif ied that th

e value o f his far

m had dec

rease d by 45 to 50% which amountedto monetary damages between $200,900 and $223,379. The Departm ent’s appraiser6 The appraiser stat ed that increased flooding on ten acres of the tract north of the new road had decreased the valu e of t

hat tra ct by $4,200 an d quantif ied t he se veran ce damag e at$1,050.

-8- placed the monetary va

lue of the incidental damage s to the Wheelers’ r emaining propert y at $5,250. 6 The third witness, the real estate broker wh ose Tennessee license had lapsed, testified that the construction had diminished the value of the Wheeler s’ remain ing prop erty

by 4 0% or app

roximately $178,073.

We have already

concluded in Section II

that the trial c ourt should not have permitted the unlicensedreal estate agent to give an opinion regarding the eff ect of the construction project on the value of the Wheeler s’ remaining prope rty . Accor

dingly , this testimony

must be co mpletely disregarded

and cannot be used to establish the range of reasonable ness with regard to the incidental damage s. Because this witness’s testimony regarding the amount of the incident al damag es was le ss than Mr. Wheeler’s calculation of the incidental damag es, we conclude that the erroneously admitted te st im on y, more probably tha n not, did notinfluence the jury ’s calculation of the incid ental da mages.
The competent evidenceregar ding the measure of the Whe elers’ incidental damages ranged from $5 ,2 50 to $2 23 ,3 79 . T he ju ry o bviously ac credited Mr. Wheeler’s testimony regarding the damage to his rema

ining pr operty because it used a ro unded down version

of his lowe

r estimat e to set the Wheelers’ damages. Mr. Wheeler’ s testimonywas buttressed by dra matic photographic and videotapedevidence of post-construction flooding on the property. B arring an error of law , a jury’s award of incidental damages that falls with in th e range of reasonableness established by the evidence will not be set aside on appeal. In lig ht of Mr. Wheeler’s testimony regarding the decline in the fair market value of his own property , we find that the jury’ s decision to award the Wheelers $200,000 in incident

al damag es is supported by materia l evidence and does not reflect that passion, prejudice, or capr ice on the jury ’s part.

V.

For the reasons stated he

rein, we affirm t he judg ment awa

rding th e Wheele rs $197, 8 40 in addition to the funds the Department had already paid into court and remand the case to the trial court for wh atever furth er proc eedin gs may be requi red. We ta

x the costs o f this appeal t o the State of Tennessee.

_____________________________ WILL IAM C. KOCH, JR., JUDGE