### IN THE COURT OF APPEALS OF TENNESSEE AT JACKSON NOVE MBER 19, 2002 Session STATE OF TENNESSEE, ON RELATIO N OF THE COMMISSIONER, DEPARTMEN T OF TRANSP ORTATION, FOR AND ON BEHAL F OF SAID DEPAR TMENT v. SAMM Y HANNA, E T UX, YVONNE HANNA.

Direct Appeal from the Circuit Court for Hardin County No. 3206 Honorable C. Creed McGinley, Judge

No. W2002-00152-COA-R3-CV - Filed August 5, 2003

This is a condemn ation case. The Tennessee Depar tment of Transportation alleges that the trial judge commi t ted error by allowing the landowners to discover the opinions of an appra iser not designated

to testify at trial and that these errors require over turning the jury ’s verdict because of the prejudice they

caused. We find tha

t errorswere c ommitted in the cour t below, b ut that the se errors were harmless. Therefore, w e affirm the verdict of the jury

.

Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Circuit Court Affirmed

A LAN E. H IGHERS , J., delivered the opinion of the cour t, in w hich W. F RANK C RAWFORD , P.J., W.S., and D AVID R. F ARMER , J., joined.
George G. Boy

te, Jr., Assistant Attorney Genera l, Jackson, TN, for Appellant
Richard W. Vaughn, Jr., Milan, TN, John J. Ross, Savannah, TN, for Appellees

OPINION
Facts and Procedural History

As par t of a hig

hway construction proje ct, the Te nnessee Departm ent of Tr ansporta tio n (TDOT) conde mned a secti on of p ropert y running t hrough the middle of Mr. and Mrs. Hanna’s (the Hannas) 2.4 acre

commercial prope

rty in Savann ah, Tennessee. T his conde mn ation included the two commercial buildings standing on the prope rty, a Fr ed ’s Discount Store and another building formerl y used as a Pizza Hut. The cond

emnation left the H annas with two irr egular shaped tr acts divided by the highw ay. During the condemnation process, TDOT hired an independent appraiser to estimate

the value of the Ha nna’s pr operty in order to make c ompensat

ion to the H annas. D avid Wh al le y, a

certifi ed appra

iser, ca lculated the amoun

t to be $722,426.00. This amount was reviewed,-2-

approved, and deposited with the court by TDOT e mployee Fr

ed Vinson (Mr. Vinson) who is also
a certified appraiser. The

H annas did not accept this amount and after some litigation in the trial court, an Order of Condemnation an d Appro priation was entered on October 12, 1999 giving possession of the property to TD OT, but leaving the amount of compensation to be litigated.

Su bs eq ue nt ly, TDOT hir ed anothe

r indepe ndent app

raiser, Earl Ran dle Bouldi n who determinedthe Hannas should receive $500,000.00. Durin g this time, M r. Whalley

modified h

is appraisal downwar

d to $673,6 05.00 bec ause he m iscalc ulated the s ize of the F red’s sto re. The se a ppraisa ls were re

viewed a nd appro ved by

Mr. Vinson . Mr. Vinso n’s job wa s not to deter min e whether the appraisal was correct or why the appraisals varied, but

only to see if the

y me t applica ble guidelines and were appropriate for trial testimony . He determined that they were acceptable and set aside a condemnation deposit in the amou nt of the hig her estimate. TDOT chose to use Mr. Bouldin’s appraisal and designated him as their e xpert for trial.
During discovery, the H annas asked for and received, over TDOT’s objections, the various document s prepared by

Mr. Vinson showing the amounts of both Mr. Whalley’s and Mr. Bouldin’s apprais als. Mr. Bouldin’s opinion was that value of the remaining properties left to the Ha nnas was diminished because of their irregular shapes, but that value had been added to each since each now had highway

frontage. Mr. Bouldin determined that the a mount that the property ha d been damaged
was equal to the amount that the property ha d been enhanced creating a wash. Mr. Whalley, on the other hand, felt that both of the re ma in in g p ie ce s o f p ro pe rt y had bee n damag ed consid

erably , fifty percent to one remainder and sixty percent to the other.

At trial, Mr. Vinson was called to the stand by the Hannas and

was asked about the opinions of the state’s appraisers, though not by name, on the issu e of dam age to the remaining property . Mr. Vinson acknowl e dged that one opinion stated that there was damag e, that Mr. Vinson agreed that there was probably

damage, but that he did not agree with the amount of damage.

Mr. Hanna testified that the condemnation award should be $1,500,000.00 and then put on the expert t

estimony of c ertified appraiser Michael Deal that it should be at lea st $1,100,000.00. TDOT presented Mr. Bouldin’s expert testimony that the value should be $500,000.00. TDOT als o presented the expert

testimony of Finley

Timm Stubbs who testified that the Fred’s store could have been leased for $3.00 to $4.00 dollars per square f oot or tha t it could ha

ve been sold for $30.00 per square foot. The jury re

turned with a verdict for the Hannas in the amount of $930,176.00. The trial court denied TDOT’s motion for new trial and explicitly approved the verdict in t he role of the thirteen th juror. TDOT filed a timely appeal and presents the

following two issues for our review:

I. Did th e C ou rt er r b y allowing the opponent’s deposition of a party ’s em ployee an d production of his records to include disclosure of his review and impressions of a consulting expert’s repo

rt, e ffectivel

y c ircumven

ting the r ule [T ENN

. R. C IV

. P. 26.02(4)(B)] preventing the disco very

of a non- testify

ing exper t’s opinion s?-3-

II

. Did

the Court err by a

llowing the owner of

condemne d land to call an employee of the condemning agency

to testify about determinations he made i n the process of setting the amount of the condemnation deposit, effectively using the deposit process as an admission against the condemn[e]r?

Standard of Review

Our standar d of revi ew as to f

in dings of fact

by a jury in a civil a

ction is limi

ted to determin ing whe ther the re is any materia

l evidence to support

the verdict. T ENN

. R. A PP

. P. 13(d). Appellat e courtsdo not determine the credibility of witnesses or

weigh e vidence on appea l from a jury verdict. Pullen v. Textron, Inc. , 845 S.W.2d 777, 780 (Tenn . Ct. App. 1 992) ( citi ng Crabtree Masonry Co. v. C &

R Constr ., Inc. , 575 S.W.2d 4 , 5 (Tenn . 1978)). We will “ta ke the str ongest possible view of the evidence in favor of the pre vailing party

and discard evidence to the contrary .” Hickman v. Jordan , 87 S.W.3d 496, 498 (Tenn. Ct. App. 2002). A judgment based on a jury verdict will not be disturbed on appeal where the record

containsmateria

l evidenc e support

ing that verdict

. Reynolds v. Ozark Motor Lines, Inc. , 887 S.W.2d 822, 823 (Tenn. 1994).
Law and Analysis

TDOT has as ked fo r a new t rial c itin g T ENN

. R. A PP

. P. 36(b) which states that “[a] final judgment from whic h relief is availa ble and ot

herwise appropr iate sha ll not be se

t aside un less, considering the whole record, error i nvol ving a substantial right more probably than not affected the judgment or would result in prejudice to the judicial process.” TDOT has alleged two errors that it contends , when either tak en separ ately or together, were error s involving a “substantial right” and “more pr obably than not a

ffecte d the judgment.” We will first determine if

error d id occur, a

nd if so, then de

termine i f it more p

robably than not a

ffecte d the judgment.

TDOT f irst alleges that the trial court erred by allowing the Hannas to depose TD O T employee Vinson and to obtain unredacted copies of Mr. Vinson’s reports. TDOT contends that the unredacted

reports and s u bsequent questioning of Mr. Vinson allowed the Hannas to circumve nt Tennessee Rule of

Civil Procedure 26.02(4)(B) because the Ha nnas were able to learn the opinions of appra iser Dav id Whalley , a TDOT e

xpert not de signate d as a tria l witness. Tenness ee Rule o f Civil Proc edure 26 .02(4)( B) state s:

A party may

not discover the identity of, fa cts known by, or opinions held by an expert who has been consulte d by another party in anticipation of litigation or preparation for trial and who is not to be called as a witness at trial except as provided in Rule 35.02 or upon a showing that the party see king discovery

cannot obtain facts or

opinions on the same subject by other mea

ns.

In the case at bar, the Hannas wer e allowed, despite the repeated protestations of TDOT , to discover the opini ons of

TDOT cons ultin g exp ert, D avid Whalley, and more specifically, Mr. Whalley ’s opinion that the two remainders of the Hanna’s proper ty had suffer

ed incident

al damag es as a

result-4-

of the condemnation. Mr. Whalley opined tha t one remainder had suffered fi ft y percent damages and that the other had

suffered sixty percent. Mr. Whalley ’s opinion was submitted to TDOT and reviewed by Mr. Vinson. After initially prov idi ng Mr. Vinson’s reports with Mr. Whalley ’s opinions redacted, the trial court granted the Hanna’s motion to compel and ordered complete copies of the reports to be furnished to the Hannas. The trial court also denied TDOT’ s motion for a protective order limiting the scope of

Mr. Vinson’s deposition in such a way tha tMr. Whalle

y’ s opinions w ould notbe discovered. The trial court stated in its orders as a ba sis for these rulings that “a liberal construction of Rule 26 lends itself to settlement and facilitation of moving the case forw ard.”

Our Supreme Court has stated that

“[i]t is well settled that decisions with regard to pre-trial discovery matters rest within the sound discreti on of the t rial cou rt. The decision of the trial court in discover

y ma tters will not be reversed o n appea l unless a

clear a buse of di scretion

is demonstrated.” Benton v. Snyder , 825 S.W.2d 409, 416 (Tenn. 1992). Here we find that the trial judge refused TDOT’s very reasonable r equests to conce al the ide ntity and the op inions of it s c onsulting expert as provided by Tennesse e Rule of C ivil Procedure 26. 02(4)(B ). While the rule provides for two exceptions, neither is found in th

is case. Thus, we f

ind that the

trial cou rt erre d in ruling that TD OT must pro vid e unredacted copies of Mr. Vinson’s repor ts and that the trial court erred by a llowing t he depos ition of Mr . Vinso n to include questions relating to Mr. Whalley ’s opinions.

TDOT next

contends that any infor

mation received by

TDOT employee

Vinson was for the purpose of setting the condemnation deposit. TDOT a lleges , therefore, that because Tenne ssee courts have found the deposit itself to be inadmissible at trial, any of the “opinions or determin ations” Mr. Vinson made whil e reviewing the apprais a l repor ts and set ting the deposit amount should not have b een allo wed at the trial. TD OT cites Clinton Livestoc k Auction Co. v. City of Knoxville , 376 S.W.2d 7 43 (Tenn . Ct. App. 1 964) for this propo sition. Tha

t case sta tes: In sustaining the Act against attack on constitutional groundsthe Supreme Court in an opinion by Mr. Justice Burnett, now Chief Justice, said:

'Of course, the amount deposited by the condemner

is an amount that is judged by his appr aisers as to the value

under the

formula s et forth in Section 1 0, above refer red to. Whe

n th is comes to trial before th e j ur y, naturally the conde mner is going to use appraisers to try to establi sh that va

lue at les s value while the property

owner or landowner is going to use va rious appraisers to t ry to show an increased valuation. All this amounts to is purely a question of evidence

. What the condemner deposits in cou rt, doe s no t fi x t he d ama ges in any w ay in th e wo rld . It is purely what his side of the lawsuit testifie s as to wha

t they think the la

nd is worth. Th

is is rebutted, or just the other way around because, of cours e, the bur den is alw ay s on the la

ndowner to prove t he damag es he is entitled to for the taking of his property , which is to be rebutted by the c ondemner. Town of Erin v. Brooks, 190 Tenn. 407, 230 S.W.2d 397.' Cattlett v. State, 200 Tenn. 1, 336 S.W.2d 8. The construction advanced by defendant would frustrate the legisla tive inten t and purp ose to benefit both the condemner and the owner. The condemne r has the option of paying an amount

into court upon filing of the petition. It is not required to do so and it would never exercise this right if to do
so would confer a unil ateral advan tage upon the land owner by placing a floor under the final award.-5-

The de fendant in this case, having received the bene fit of the Act by taking

down the amount tendere d into court, now seeks to tie the hands of the condemner contrary to the manifest intent of the Act to insure fairness and equality to both. As observe d by

the Supre

me Court in Cattlett v. State, supra, the determination of the amount to be paid into court has nothing to do with the proof to be offered at the trial by either par

ty. I n the absence of an express provision of the statute, it should not be given the effect of circumscribing the proof offered by

the condemner, while leaving the owner completely unrestricted in the development of proof on the question of value. To escape the payment of intere st in case of a larger awa rd by the ju ry, the condemner may fix an amount somewhat in excess of its appraisal reports. Under defend ant's construction of the Act prag

matic con siderati ons would a ll but depr

ive it of th

is privilege. Clinton Livestoc

k Auction Co. v. City

of Knoxville , 376 S.W.2d 743,744 - 45 (Tenn. Ct. App.1964).

TDOT reads t he abo ve lan guage stating “the determination of the amount to be paid into court has nothing to do wit

h the proof to be offered at the trial by either party ” as authority prohibiting Mr. Vinson’s testimony. We think that TDOT has taken

this phrase somewhat out of context and placed
a different meaning and more empha sis on the language than was intended. The above cited ca se reflec ts t he sound policy of not allowing the landowner to use the condemnation deposit amount agains tthe co ndemn er. Th e langu age cited by TDOT me rely re flects the fact that

the determination of the conde

mnation de

posit will le ad, in

all likelihood, to a d

iffere nt number

than that used at tr ial. It was not intended to limit anyone’s testimony , and does not deal with matters other than theamount of the conde

mnation de

posit. We find no merit in th i s argument presented by TDOT and instead agree withTDOT’s statem ent found earlier in its brief that reads “[w]ithout the discovery of the Whalley opinions, Hanna could still have called Fred Vinson to testify, but likely

to only to testify to his own opinions, and the weight of hi s opinions wo uld be limited, as he admitted he had not appraised the prope rty and he ha d no opinion s as to the property’ s market value.” As stated in White v. Vande rbilt Univ ersity , 21 S.W.3d 215, 224 (Tenn. Ct. App. 1999):

The third classification includes experts who were not specifically retained in anticipation of litigation or in preparation for trial, such a s regu lar employee s of a party or treating phy sicians. Because thes e expe rts do not fit within Tenn. R. Civ. Proc. 26.02(4)(A) or 26.02(4)(B), their identity, as well as their facts a nd opinions , are fr

eely discover able as with any ordinar

y witness.
That Mr. Vinson is a regular employ ee of TDOT is undisputed.

TDOT al so all eges th at Mr. Vinso n’s te stim ony was us ed imp ermis sibl y as an admi ssio n aga i nst TDOT because

Tennessee law holds that the depos it amount c annot be u sed as an admission a

gainst the condemne

r. TDOT c ites Kennedy v. City of Chattanooga , 405 S.W.2d 653 (Tenn. C t. A pp. 1966) (“we can not re gard th e fix ing o f an amou nt in the petition . . . as an admission by the condemner”). TDOT points to the following portion of Mr. Hanna’s closing argument a s evidence that the c ondemnat

ion deposi

t was used

as an adm

ission ag ainst TDO T:1 The appraiser s presen ted ext ensiv e test imony as to how th ey reached their conclusi ons, including various valuatio n meth ods . W e do not find it necessa ry to ou r con clusion s to rec ount this in form ation.
-6- See, we can’t go out and hire a bunch of experts. We don’t have the resources. If the state wants to go find a

guy like Mr . Stubbs 18 months after the lawsuit is filed, they can g o find them. They’ve got the money

to pay for it, but when y

ou talk about

damage s, allI can say

is the Attorney Genera l needs to talk to the

ir own cli ent, Mr. V

inson, bec ause

he’s told you what he thoug ht. A rep resenta tive of TD OT has tol d yo u what he thought, thinks about.

We do not find

this to be using the condemnation deposit as an admission. The amount deposited by TDO T was never mentioned during the entire trial. The above quoted portion of Mr . Hanna’s closing argument

refers the jurors to Mr. Vinson’s own opinion stating he felt that the remainders suffered incidental damages a nd does not refer to the condemnation deposit itself.
Having found that error existed in the court below, we must next decide, after considering the whole re cord, wh

ether it “more pro

bably than not affected the judgment.” See T ENN

. R. A PP

. P. 36(b). We have before us in therecord the testim

ony of all se ve n w it ne ss es pr es en te d t o t he ju ry. The first witness was TDOT employee Char les Green who presented TDOT’s hig hway plan

and the particulars of prope

rty involved in the condemnation. Mr. Gree n testifie d that the

origina l proper ty consisted of

2.4 acres and

that after the condemnation, the Hannas were left with one remainder of 0.66 acres on one side of the highwa y, and another remainder of 0.879 acres on the other. Ad di ti on al ly, TDOT had taken a construction easement of 2/10 of an acre and a slope easement of 3729 square feet, both of which would revert back to the Hannas three y ears after completion of

the project.

Mr. Hanna took the stand next. He testified that he had purchased the land i n 1970, ha

d built the Fred’s store in 1973, had made several sig nificant additions to the store over the year s, and was still operating the store when it was condemned. Mr . Hanna also testified that he had built a building for a Pizza Hut franchise tha

t opened in 1976. He testified that the Pizza Hut moved out to a larger building in 199 6 and th at he h ad been appro ached b y a Wendy’s fra nchis e inte reste d in b uild ing. Mr. Hanna purchased an additional five foot strip of

land adja cent to the building

to accom modate
a drive through fo r the Wend y’ s but the de al fell th

rough o nce new s of the c ondemnat ion beca me public shortly thereaf

ter. Mr. Hanna testified

that he felt his buildings were worth $1,000,000.00. He felt the remainders were wor thless because they

had large areas o f fillmaterial that Mr. Hanna testified he would not build on. Mr. Hanna also testified the remainders were to s mall to re build his Fred’s store. Mr. Hanna’s opinion was that the damage to the re mainders amounted

to $150,000.00. He also stated that his opinion of the value of the land taken by TDOT was $350,000.00.

The next witn esses were th e oppo sing s ides’ apprai sers. 1 First was Michael R. Deal, a certified general appraiser hire d by Mr. Hanna to appraise the property

. Mr. Deal opined that the Hannas were du e $1,100, 000.00 fo r just comp ensation . Mr. Dea l stated th at he inc luded thir ty percent damage s to the re

mainder s in his ca

lculation s but on cr

oss e xaminat ion stated that the-7-

number could be fifty per

cent to one of the remainders. Next was Finley Timm Stubbs, a real es tate practitioner

call ed by TDOT w ho had done extensive work for Fred’s Stores, I nc. involving the buying or selling of existing stores and the purchase of construction materials for buildi ng n ew stores. Mr. Stubbs testified that in his opinion the store would sell for a price in the range of $30.00 to $38.00 p er squar

e foot and could

be leased for a price in the rang e of $3.00 to $4.00 dollars per square foot. Mr. Stubbs also testified that he felt the remainders had been damag ed althoug h he did not have an opinion on t

he amount

of damag es. Next, T

DOT call ed its des ignate d expert wi tness, Earl Ran d Bouldin . Mr . Bouldin testifie d that he w as a cer tified g eneral

apprais er and th at his opinion was that the Hannas should receive $500,000.00 in compen sation. Mr . Bouldin testified that the two remainder properties we re very desi rable because of their location and while they had sustained damages , any damag es were offset by the benefits created by

each remainder having highway frontage. Next the Hannas called Fr ed Vinson to the stand. Mr. Vinson testified that he had workedfor TDOT for nineteen ye ars. He was a certified g eneral appraiser, and he made apprais als for TDOT as well as reviewed the rep orts of independent appraisers. Mr. Vinson stated that his job wasto make su

re the in depende

nt appra isals comp lied with th

e applic able gu

idelines. Mr. Vinson confirmed that the appraisal work done on the Hanna’s proper ty met all the ap plicable guidelines and that he had a pproved the appraisal work for court testimony . Next followed an exch ange between counsel for the H annas and Mr. Vinso n that is the crux of TDOT’s a

ppeal in t his matter:
Q. Now, you ag

ree with the opinion that the Hanna tract – the remainder – well, let me ba ck up. You didn’t do an appraisal on this property , did you? A. Right. I did not do an ap praisal. Q. You reviewed the appraisals done on beha lf of the state? A. Right. Q. And one

of the opinions was that these remaind ers suff ered som e damag es? A. That’ s right. Q. One of them 50 percent damage to one remainder and

one 60 percent to another remainder, right? A. Right. Q. And you ag

ree with that opinion? MR. BOYTE: Objection, lack of foundation. THE COURT: Overruled. Q. You agree with that opinion in your role as a review appraiser? A. My answer to that que stion is that I agree that there probably

are damages. The amount – I persona lly may not agr ee with th e amount. Q. All right. Well, let’s do it this way. You ag ree that there are damag es to the remainder? A. [Ye s]. Q. I don’t

know any

other way to a sk it. There was a second appraiser [sic] done on the Hanna property, wa sn’t there, by the sta te? MR. BOYTE: Objection, Your Honor. May we approach? (WHEREUPON, there was a conference at the bench.)-8-

Q. Let’s leave it at this, Mr. Vinson. Without stating an amount y ou feel in your pr

ofessional opinion that those remainders have suffered some damag e? A. Right.

The last witness, John Gilbert Parrish, Jr., was called by the Ha nnas. Mr. Parrish testified about his purchas e of a vacant Wal-Mart building in Savannah. This building had bee n used by Mr. Bouldin
as a comparison sale for placing value on the Hanna’s property . Mr. Parrish testified that he bought the building for $440,000.00. He testified that he had heard that a local church wanted to buy the pr op er ty, but did not h ave thei r financ es in orde

r and tha t a third pa

rty was also wanting to buy the buil ding. Mr. Parrish testified that he was familiar with the church and approv ed of the ir work in the community

and decided to buy

the building with the intention of eithe r holding the building until the church worked out its finances and then selling the building to the church at his cost, or, if that didnot work out, selling

it to anothe

r buyer for p

rofit. Mr. Parrish testified that he sold the building to the church some three months later at his cost.
We have previously he

ld that
[o ]r di na ri ly, an error i n admitting evidence is harmless if the fact shown by the offending evidence is also shown by other evidenc e in the record which is competent. If it appear s to the reviewing court from an examination of the whole record that the verdict is unlikely

to be diffe rent in the

event of a retria l, the er ror must be

consider ed harml ess. Brown v. Daly , 83 S.W.3d 153, 158 (Tenn. Ct. App. 2001).
In this case, if we we

re to discard Mr. Vinson’s testimony c ompletely, there still would have been testimonyfrom eve

ry witness givin g an opinion on the matter that the remainders of the Hanna propert y suf fered dam ages. TDOT contended, howeve r, through Mr. Bouldin, that the increased highway front age bene fitt ed the remai nders in th e same a moun t as th ey were dama ged creat ing a wash. The jury chose to disagree with this opinion, and TDOT allege s that this is because of a prejudice create d by

Mr. Vinson ’s testimo ny. Mr. Vinson testified that, in his opinion, the remainders were damaged, but he woul d no t give a n opinion a s to the amo

unt of the

damage s. Another TDOT witness, Mr. Stubbs, also testified that he felt the remainders were da maged, but that he did not have an opinion as to the extent of the damages. TDO T’s main obj ection is that Mr. Vinson was questioned about an opinion that one of the remainders suffered f ifty perce nt damages and the other

sixty percent damages. Howeve r, a similar number was placed before the jur y by Mr. Deal, the Hannas’ expert, who testified that in calculating his appraisa l he has used thirty per

cent damages for

both of the remainders, but that one of the remainders more tha n likely had fifty

percent damage s. Thus, from our review of the testimony, we see that e ach of the persons testify ing about the remainders testified that they suffered damages. The jury ’s verdict was not rendered in such

a way that we know what percentage damages they

attributed to incidental damages suffered by two remaining pieces of the Hanna’s property , nor can we know if they assigned any

incidental benefit s to offset those dama

ges. Ev en if we w ere to ho ld that Mr. Vin son ’s testimony was prejudicial, a retrial would still find each and every witness testifying that the r emainders suffered

damages, and only one witness testifying

that the damages were offse t by benefits. Thus, we findthe errors alleged-9-

by TDOT ar e harmle ss errors bec ause the verdict is unlikely to be different on retrial. Moreover, much of the “offending evidence” would have been heard

by t he jury from othe

r witness es, even

if Mr. Vinson had never testified. Because the e rrors are harmless , we find th at they “more pr obably than not” did not affect the judgment entered in this case

. Furthermore, the jury ’s verdict of $93 0,176.00 is well within the range of the evidence presented. The evidence presente d to the jury range d from Mr. Bouldin’ s estimate of $500,0 00 to Mr. Hanna’s estimate of $1,500,000. “The amount of incident al d amages to be awarded is a jury question, and unless the award is ‘shown to be wholly unfair and unreasonabl e’, it wi ll not be disturbed on appeal.” Tenn. Dept. of Transportation v. Wheeler, No. M1999-00088-COA-R3-CV, 2002 LEXI S 727, at *19 (Tenn. Ct. App. Oct. 11, 2002) (holding that it was error in condemnation
case to admit va

luation te stimony

of landowner’s e

xpert bec ause expe

rt w as not l icensed

in Tennessee, that this error was harmless under T.R.A.P. 36(b), and that jury ’s verdi ct of $200 ,000 in damage s, which fell between landowne

r’s estimate of $2 23,379 in damage s and TDO T’s estima te of $5,250 in damag es, was w ithin rang e of rea sonableness established by competent evide nce and should be upheld).

Conclusion For the foregoing r

easons, we find that there was error c ommitted in the court below, but that such error was harmless and did not affect the judgment below. Thus, we affirm the verdict of the jury . Costs are

taxed to the

Appellan t, State of Tenness ee, for

which exe cution ma

y is sue if necessary

.

___________________________________ ALAN E. HI

GHERS, JUDGE