IN THE SUPREME COURT OF MISSISSIPPI N O. 2014-SA-01181-SCT MISSISSIPPI TRANSPORTATION COMMISSION

v. UNITED ASSETS, LLC

DATE OF JUDGMENT: 05/30/2014 TRIAL JUDGE: HON. MICHAEL W . McPHAIL TRIAL COURT ATTORNEYS: JACK H. PITTMAN CHRISTOPHER M. HOW DESHELL MARK D. HERBERT SABRINA RUFFIN COURT FROM W HICH APPEALED: FORREST COUNTY SPECIAL COURT OF EMINENT DOMAIN ATTORNEYS FOR APPELLANT: CHRISTOPHER M. HOW DESHELL JACK H. PITTMAN ATTORNEYS FOR APPELLEE: LISA A. REPPETO MARK D. HERBERT NATURE OF THE CASE: CIVIL - EMINENT DOMAIN DISPOSITION: AFFIRMED - 02/11/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE DICKINSON, P.J., LAMAR AND MAX W ELL, JJ. LAMAR, JUSTICE, FOR THE COURT: ¶1. The Mississippi T r a n s p o rtation Com m i ssion (MTC) f i led a c o m

plaint to condem n 11. 5 a c r e s o f highway f

rontage property owned by United Assets, LLC, leaving United Assets with 12.02 a cres. Af ter a trial in the F o r r e s t C ounty Special Court of Em inent
Dom ain, the jury a warded $ 1,620,060.66 as just com p ensation f

or the taking. MTC appeals,a r g u i n g t h a t the trial court erred when it allowed United Assets’ appraiser to testif y to the value of t h e r e ma i n i n g property without supporting m arket data, and when it denied its

m otion f or judgm ent notwithstanding the verdict (JNOV) a nd/or a n ew trial. W e f ind that MTC’s f ailure t o object contem

poraneously to t he a d m ission of the appr a i ser’s testim ony waived the issue, and we theref ore af f irm

. FACTS ¶2. U n i t e d A s s e t s owned 23.52 a cres at the n ortheast intersection of E v e l y n G a n d y Parkway (Highway 42) and Interstate 59 in Forrest C o unty

. The property was accessible by

a f rontage road a long Evely

n Gandy Parkway and was unim proved except f

or an abandoned house and shed. MTC f

iled a com

plaint to condem n 11.5 acres of the property , i ncluding all of the highway

f rontage. ¶3. The taking was part of a two-phase construction p roject to f acilitate f aster traf f ic f low

at the intersection. P h a s e 1 included building a new access ram p on the taken property leading f rom Evely

n Gandy Parkway to I-59. Phase 2 included building a f ly over that would
span the length of the taken property a nd blo c k t h e v i s i b i lity of the rem ainder f rom the highway s. Paul Purvis, a p roject engineer f or t he M ississippi Departm ent of T r ansportation (MDOT), testif

i ed t hat Phase 1 c o n s t r u c tion was scheduled to begin in 2018, and that the tim ing of Phase 2 was not def

inite. ¶4. The t aking rendered the rem ai n i ng 12.02 acres landlocked. At the tim e of the trial, United A ssets had been using a gravel r oad that crossed MTC’s no-access line to get to the property

. B ut United Assets had no perm i t t o cross the no-access line. Purvis testif ied that,

2if United Assets applied f or a tem porary access perm it, the perm it application m i ght or m ight

not be appro v ed. As of the trial date, United Assets had not a p plied f or a p erm it. Purvis f urther testif

ied that the construction plans called f or a perm anent access r oad t hat would not be constructed until Phase 1, in 2018. MTC’s expert appraiser adm itted that c o nstruction of this perm anent access road could be delay ed or canceled. ¶5. B e c ause the parties could not agree on just c om pensatio n f

o r t h e t a k i n g , a j u r y determ ined just com

pensation, c alculated as the d i f fe r e n c e b e t

w e e n t h e p r o p e r ty ’s f air m arket value bef ore the taking and the rem ainder’s f air m arket value af

ter the taking. S

ee Miss. State Highway Com m ’

n v. Hillm an , 189 Miss. 850, 198 So. 565 (1940). The j ury viewed the property during the trial. ¶6. Jonathan Null, MTC’s expert real estate appraiser, testif ied that, bef

ore t he taking, the highest and best use of the property was f or com m ercial developm e n t, due to its location of f the I-59 e x it ram

p. Null testif

ied that he conside r e d t h r e e valuation approaches: the sales

com parison approach, the incom e approach, a n d the cost approach. He determ ined that the sales com parison a pproach was m ost appropriate to value the property bef ore and af ter the taking. Null explained that, when t aking the sales c om parison approach, the appraiser arrives

at a value using sales of real estate s im ilar to the subject pr o p e r t y , m aking adjustm ents as needed f or d i f f e r e n c e s between each sale and the subject p roperty

. Using the sales

com parison approach, Null a rriv e d a t a b ef ore-taking value o f $60,000 per acre af ter adjustm ents, with a total bef ore-taking value of

$1,411,200.

3¶7. Null testif ied that the h i ghest and best use of the property rem ained t he sam e af ter the taking, because the property still was adjacent to the interstate and because there was little change in the access to t he propert y . H e f o u n d the rem ainder f

ully viable f

or com m ercial developm ent, but he adm itted that his appraisal assum ed that United A ssets had legal access
to the rem ainder using the gravel road. Using the sam e com parable sales, he f

ound that the
per-acre v alue af

ter the taking rem ained $60,000 per acre. Null testif i ed t hat, because United Assets had lost f

ive hundred f

eet o f highway f

rontage along the f

rontage road, he s ubtracted f rom the value $75,000 to build a service road, $30,780 to com pensate f o r the land used to build the road, and $30,255 to pave the g ravel road to provide paved tem porary access. The

new service road would not f ront Evely

n G a n d y P a r k w a y or I-59. Null testif ied that the af ter-taking value was $585,165, and that the dif f erence in the bef

ore and af ter values was $826,035. ¶8. Louis Tortorich, a m anaging m em ber of U nited A ssets, testif ied that it had purchased the property i n 2006 f

or $1,355,000. He stated that United Assets h ad in v e s ted in the property because of the potential f or high-end c o m m ercial d evelopm ent, such as f ast-f ood

c h a ins, hotels, a nd “big-box” s tores. Tortorich testif ied that, now, “no one in t h e i r r i g h t

m ind” would want to develop the rem aining land in that m anner. ¶9. John Stribling, a com m ercial real estate b roker, testif ied as an expert in com m ercial real estate dev e lopm ent about highest and best use. Stribling t estif ied that access and visibility are vital to a comme r c i al site, and that the property bef ore t he t aking was a good site f or c om m ercial developm ent, with f ive hundred f

eet of f r ontage along Evely

n Gandy

4Parkway and f ive hundred f

eet o f f rontage o n I-59. Stribling testif ied that the taken portion of the property was the m o st d e s i r a b l e portion. He stated that the rem ainder would not be viable f o r c om m ercial developm e nt because it lies three to f o ur hundred f

eet away f

rom Evely n G andy Parkway , and t he p l anned f ly o ver would block visibility f rom highway traf

f ic. ¶10. Joe Parker appraised the property bef ore and af ter the taking f

or United Assets. He also c onsidered the t hree approac h e s t o valuation and f o und that the sales com

parison approach was m ost appropriate f or the property

. P arker testif ied t hat, bef

ore the taking, the property was f

irst-of f -the-interstate property with good visibility

. He f ound that, bef

ore the taking, the highest a

n d b e s t use was high-end, m ixed-use com m ercial developm ent. He stated that the p roperty would h ave been appropriate f or f a st-f ood restaurants, convenience stores, and lodging f

acilities, with a large retail store in the back. A f ter adjusting the com

parable sales, he reached a v alue of $ 2.25 per square f oot, or $2,305,195, f

rom which h e s ubtracted $20,000 to dem olish the house and shed, f or a f inal value of

$2,285,195 bef

ore the taking. ¶11. The trial court ruled on the a dm issibility of each appraiser’s com parable sales outside the presence o f the jury

. It excluded several o f t h e com parable sales on which Null had relied and on which Parker h ad relied to reach his bef o re-taking v alue. But the tr i a l c ourt excluded all of the com

p arable sales supporting Parker’s af t e r - t a k ing value. Parker then testif i ed that the t aking of t he highway f rontage and access elim inated the p o s s i b i lity of

com m ercial use, and that t he h ighest and b est use o f the rem a i n d e r w o u l d b e t o hold i t f or f uture developm ent once the perm ane n t a ccess road has been constructed. Parker also testif i ed t hat the af

ter-taking value was zero. Af ter hearing all the testim ony , the jury f ound

5that just c o m pensation f

or t he taking was $1,620,060.66. MTC f iled a m o tion f

or JNOV or a new trial, which the trial court denied. ¶12. As m entioned above, M T C has now appealed and raises two issues. United Assets has cross-appealed, but it specif ically requests th a t th is C o u rt tak e u p its cro s s-ap p eal o n ly if it f in d s th at a n ew trial is w arran ted

. DISCUSSION 1. MTC’s failure to object c o n t e m poraneously w aived its opportunity to argue on appeal t hat Park er’s testim ony w as e rroneously adm itted. ¶13. M T C a r g u e s t h a t , b e c a u s e t he trial court excluded all of Parker’s af te r - t a k i n g

com parables, it should not have allowed Parker to testif y that the af

ter-taking value was zero. It argues that the adm ission of Parker’s testim ony contravened this Court’s decision in Gulf South Pipeline Co., L.P. v. Pitre , 35 So. 3d 494, 499 (Miss. 2010), where this Court held that

an appraiser’s v aluation testim ony was unrelia b l e and inadm issible because the appraiser had not f ollowed a recognized m ethod or procedure accepted in the appraisal industry

. United Assets counters that t h i s issue is procedurally barred because MTC did not m ake a
contem poraneous objection to this testim ony . ¶14. It is true that MTC d id not object when the testim ony f i rst w as presented to the jury

. During the v oir dire of the af ter-taking com

parables outside the presence o f the jury , Parker stated that the pr o p e r t y w a s essentially worthless in the af ter condition due to the lack of

access, and that it only c ould be h e ld f or f uture use. Once the af

ter-taking com

parables were excluded, Parker testif

ied bef o re the jury

that, due to the lack of

access, the rem ainder had

6“inconsequential v alue” a nd was “virtually worthless.” Parker also testif ied that he “[ didn’t]

see any b uy ers com i ng in there and buy ing [ t he property ] today at any price, period.” MTC

m ade no objection. The trial court then excused the jury to allow United Assets to prof f er the excluded com

parables. ¶15. W h en the trial recom m enced, United Assets again asked Parker i f the rem ainder had
any s ignif icant value, a nd M T C objected f o r t he f i rst tim e. The trial c ourt f ound that Parker already h ad testif

ied t h a t the rem ainder had no value. MTC com plained that, because the af ter-taking com

p arables had been excluded, Parker could not testif y about his af

t er-taking appraisal. The trial court allowed voir d ire on Parker’s ability to testif y that the property had

no value, and Parker s tated that, based on the t estim o ny so f ar a n d the inf

o rm a t ion f

urnished

to him , he was able to render an op inion t hat the v alue was zero. T he trial c ourt then
perm itted Parker to testif

y bef ore the jury

that the property

had zero value af

ter the taking. ¶16. If no contem

poraneous o b

jection is m ade, any error i s w aive d

. InTown L essee Assoc., LLC v. Howard , 67 So. 3d 711, 719 (Miss. 2011) (citing M.R.E. 103(a)(1)). A p a r ty m ust object “as soon a s it appears that the evidence i s o b j e ctionable, or as s oon as it could reasonably have b een k

n own to t he objecting p a r t y , u n l ess som e special reason m akes a postponem ent desirable f o r him which is not u n f a i r t o the proponent of t he evidence.” Sum ner v. S

t a t e , 3 1 6 S o. 2d 926, 927 (Miss. 1975). A nd “[ w]hile the t rial judge has d i s c r e t i o n with r egard to w hen and how t o d ecide whether an expert’s testim ony i s suf f i ciently reliable t o be h e a r d by a jury , t his d oes not elim inate the requirem ent that the

7party opposing the evidence m ake a tim ely objection to it s b e i n g a dm itted into evidence.”

Hyundai Motor v. Applewhite , 53 So. 3d 749, 755 (Miss. 2011). ¶17. MTC adm i ts that it did not object contem poraneously when Parker t estif ied that the property had inconsequential value and was virtually worthless. But MTC explains that it did

not object th e n b e c a use Parker’s testim ony concerned only the highest and best use of the property , and he h ad opined that the rem ainder had no commer c i a l value, not zero value.
Because this testim ony on com m e rcial v alue w as cum ulative of Tortorich’s and Stribling’s testim o ny , MTC argues, it did not object. MTC cont e n d s that its objection properly cam e once Parker testif

ied that the property

had no value f

or any purpose. ¶18. W e are not convinced. Af ter caref ul r eview of the transcript, we f ind that MTC did

not object as soon as i t “reasonably appeared the evidence was o bjectionable.” Contrary to MTC’s a rgum ent, Parker’s initial testim ony about the rem ainder w as not lim ited to highest and b est use. Parker provided s e v eral opinions on value: that t he r em ainder had “inconsequential val u e , ” that “[ it was] virtually worthless,” that he saw no r easonable potential c om m ercial value, and that he could not see “any buy e rs com i ng in there and buy ing [ the property ] today at any price, period.” Further, Parker discussed both com m ercial and residential use, c ontrary to MTC’s assertions. Parker also had stated during voir dire that the

rem ainder was essentially worthless, so MTC was on n otice of the content of h is testim ony . bef ore the jury would be. B ut MTC did not o bject until after Parker had testif ied several tim es that the rem ainder had no value. W e f i nd t hat MTC w aived any error in the adm ission of Parker’s valuation testim ony by f ailing to object contem

poraneously

.

8¶19. N o twithstanding M TC’s waiver of t his issue, we also f in d t h a t a n y e r r o r i n t h e adm ission of P arker’s testim ony was harm less and does not warrant a new t rial. Error m ay

n o t b e p r edicated on the adm ission of evidence unless “a substantial right of the part y ” i s af f ected. M.R.E. 103(a). “This Court has a l ong-standing history of not disturbing jury verdicts in em inent dom ain p roceedings, especially when the jury has viewed t he property being taken and t he e vidence in the record supports the jury ’ s f inding.” T r o w b r i dge P artners, L.P. v . Miss. Transp. Com m ’n , 9 54 S o. 2d 935, 943 (Miss. 2007) (cit i n g M i s s. Highway C o m m ’ n v . Havard , 508 So. 2 d 1099, 1105 (Miss. 1987)). Courts are “loathe to disturb a jury ’s em inent dom ain award w here, as here, t he jury has personally viewed the p rem ises.” Crocker v. Miss. State Highway Com m ’n , 534 So. 2d 549, 554 (Miss. 1988). ¶20. In f

act, “where the jury has viewed the property being t aken, any substantial evidence in the record supporting the jury ’s dam age assessm ent w ill preclude reversal.” Id. The jury is not required t o accept the e xact f igures given by the apprai s ers. Miss. State Highway Com m ’ n v. Franklin Cty. Tim b er Co. , 488 So. 2d 782, 787 ( Miss. 198 6 ) ( q u o ting Miss. State Highway Com m ’n v. Terry , 288 So. 2d 465, 466 (Miss. 1 974)). And opinion testim ony

on value is not lim ited to qualif i ed expert appraisers; other witnesse s w i t h “substantial f am iliarity with the f

air m arket values of properties of the ty pe in i ssue and a like f

am iliarity with the property

in issue” m ay

so testif y . Franklin Tim ber , 488 So. 2d at 786. ¶21. The jury ’ s v erdict here of $1,620,060.66 was s upported by substantial evidence. The jury viewed the p r operty

. All the witnesses questioned agreed that the h ighest and best use of the property bef

o re the taking w as f

or com m ercial developm ent. Testim ony established

9that, af

ter the taking, the rem ainder would have no access at least until 2 018. Tortorich and Stribling testif

ied that the r em ainder had no com m ercial value, and Parker testif ied that its highest and best use would be to hold f or f uture developm ent. ¶22. Parker t estif

ied that the bef

ore-taking value was $2,285,195, and that the af ter-taking value was zero—so in e ssence, h e testif ied that the j ust com

pensation due was $2,285,195. Null testif ied that t he bef

ore-taking value was $1,411,200, a nd that the af ter-taking value was $585,165, 1 resulting i n just com pensation due of $826,035. The jury ’s verdict was between these two values. Also, United Assets’ am ended stateme n t o f values, w hich went unchallenged by M TC, stated an af ter-taking value o f $30,050. So even if Parker had not been allowed to testif

y that the a f

ter-taking value was zero, h e presum ably would h a v e testif i ed that it was w orth only $30,050 at m ost. In short, we f ind t hat, even if MTC properly had preserved the issue, any error in adm itting Parker’s testim ony was harm less. 2. The trial c o u r t d i d n o t e r r w hen he denied MTC’s Motion for JNOV/New Trial. ¶23. MTC argues that the trial c ourt erred by d eny ing its m otion f or a JNOV because the evidence was insuf

f icient t o support the verdict. It also argues that it is e n titled to a new trial because the verdict was against the overwhelm i ng weight of the evidence. W e disagree. ¶24. “ T h i s C o u r t a p p l i e s a de novo standard of review to a t rial court’s denial o f a judgm ent notwithstanding the verdict (JNOV).” Adcock v. M iss. Transp. C

om m ’n , 981 So. 2d 942, 948 (Miss. 2008) ( c itation om itted). “A m o tion f or JNOV is a challenge to the legal

1 A n d th is v alu e assu m ed th at U n ited A s s ets w o u ld h av e access. 1 0suf

f i ciency of the e vidence, a nd this Court will af f irm the denial of a J

NOV if there is substantial evidence to support the verdict.” Id. (citation om itted). ¶25. “The standard of r eview on a m otion f o r a new trial is abuse of discretion.” Johnson

v. St. Dom inics-Jackson Mem ’l Hosp. , 967 So. 2d 20, 23 (Miss. 2007) (citation om itted). “The weight of t he evidence, rather than the legal suf f iciency , is tested i n a m otion f or a new trial,” and this Court ‘“will only disturb a verdict when it is so contrary to the overwhelm ing weight of the evidence that to a llow it to stand would sanction a n unconscionable injustice.’” Id. (citation om itted). ¶26. H e r e , M T C ’ s p o s t

- t r i al and appellate argum ents rest wholly o n t he p rem ise t h a t Parker’s testim ony was unreliable and should not h ave been adm itted. And b ecause Parker’s opinion as to the af

ter-taking value was unsupported and theref ore unreliable, MTC argues, the j ury ’s verdict w as “based upon insuf f icient evidence.” MTC argues that the only legally suf f i cient evidence bef

or e t h e j u ry was Null’s valuation of $826,035. But as discussed above, MTC h as waived its argum ent that P a r k e r’s testim ony was im proper. As such, we f ind that suf

f icient e vidence existed to support t he jury ’s verdict, and that it w as not against the overwhelm ing weight of the evidence. United Assets’ Cross-Appeal ¶27. As m entioned above, United Assets r aises two issu e s o n cross-appeal. But United Assets specif

ically requests that this Court af f irm the verdict, and that it consider its crossappeal only if it d ecides to reverse and rem and f or a n e w trial. So b ecause we f ind no reversible error, we do not consider United Assets’ cross-appeal.

1 1CONCLUSION

¶28. W e f

ind that M T C waived any challenge to the adm ission o f P a r k e r ’ s a f t er-taking valuation when it f

ailed to objec t c o n tem

poraneously

. W e also f

i nd that any error in the adm ission of Parker’s testim o ny was harm less. And we d o n o t consider United Assets’ cross-appeal, at its request. W e theref ore af f irm the judgm ent of t he F orrest County Special Court of Em inent Dom ain. ¶29. AFFIRMED. WALLER, C.J., DICKINSON, P .J., KITCHENS, KING, C OLEMAN AND MAX W ELL, JJ., CONCUR. RANDOLPH, P.J., CONCURS IN RESU L T O N L Y WITHOUT SEPARATE WRITTEN OPINION.

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