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Blanton v. Board of Supervisors of Copiah County

August 20, 1998

BLANTON
v.
BOARD OF SUPERVISORS OF COPIAH COUNTY



Before Sullivan, P.j., Roberts And Mills, JJ.

The opinion of the court was delivered by: Roberts, Justice, For The Court

HERBERT E. BLANTON AND BARBARA M. BLANTON v. BOARD OF SUPERVISORS OF COPIAH COUNTY, MISSISSIPPI AND BILLY MATHIS

DATE OF JUDGMENT: 11/22/96

TRIAL JUDGE: HON. LAMAR PICKARD

COURT FROM WHICH APPEALED: COPIAH COUNTY SPECIAL COURT OF EMINENT DOMAIN

NATURE OF THE CASE: CIVIL - EMINENT DOMAIN

DISPOSITION AFFIRMED

STATEMENT OF THE CASE

¶1. This case comes before this Court from a Special Court of Eminent Domain in Copiah County, Mississippi. On January 29, 1996, the Board of Supervisors of Copiah County, (hereinafter "Appellees") filed a Petition for a Special Court of Eminent Domain. The Appellees sought to condemn 2.69 acres of real property belonging to Herbert E. and Barbara M. Blanton (hereinafter "Appellants"), to be used in the widening of a county road.

¶2. A hearing was held on this matter on April 19, 1996, and the court granted the Appellees the right to immediate title and possession of the property. The only issue left for trial was that of damages. On May 17, 1996, the matter was noticed for trial on July 30, 1996. On July 15, 1996, the Appellants moved for a continuance. An order was filed on August 27, 1996 and set the case for hearing on November 18, 1996. On August 29, 1996, the Appellees noticed the depositions of the Appellants' appraiser, Connley D. Moak ("hereinafter Moak"), for September 25, 1996.

¶3. In response to the information provided in Moak's deposition and his appraisal report, the Appellees filed a motion in limine on November 7, 1996. The motion sought to prevent Moak from testifying as to elements of damage considered by the Appellees to be improper and inadmissible.

¶4. A hearing on the motion in limine was set for November 15, 1996. In response to the Appellees' motion in limine, Moak filed an amended appraisal report on November 12, 1996. The Appellees objected to Moak's amended report on the grounds that it was not "seasonably supplemented" according to Rule 26(f) of the M.R.C.P. The Appellees complained that the new report, received six days before the trial, was unfair surprise. The Appellants proposed that the new information was minimal and that there was no surprise or prejudice to the Appellees.

¶5. At the motion in limine hearing on November 15, 1996, the Appellees sought to have the court prevent Moak from testifying about certain specific elements of damage. The Appellees asserted that items such as aesthetic damage, access to the property, availability of parking space, and an increase in noise or traffic were not compensable as separate items of damage, but only insofar as they affected the fair market value of the remainder after the taking. Two (2) of the major costs to cure included the cost to move the Appellants' house back from the road ($12,000) and to replace trees and shrubs ($24,000). The Appellees argued that these individual elements of damage could not be considered under the before and after rule. The Appellants argued that Moak's inclusion of the expenses of moving the house and replacing the trees and shrubs were permissible cost to cure elements of damage.

¶6. On the morning of the trial, November 18, 1996, the trial Judge ruled on the Appellees' motion in limine and held that Moak's initial appraisal was not a proper measure of damages. The trial court found that Moak's report did not reflect the value of the overall property before and after the taking, but instead listed individual items of damage. The lower court also excluded Moak's supplemental report as it was untimely filed. Since the bulk of Moak's testimony had been excluded, the Appellants did not call the appraiser to testify in the trial to determine damages. The jury awarded the Appellants $6,050 in total damages and compensation for the condemned 2.69 acres. Aggrieved by the trial Judge's ruling on the motion in limine, the Appellants raise the following points of error to this Court: I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR WHEN IT GRANTED THE APPELLEES' MOTION IN LIMINE, AS THE EXCLUDED EVIDENCE WAS ADMISSIBLE.

II. THE SUPPLEMENTAL APPRAISAL WAS SEASONABLY DELIVERED AND DID NOT UNFAIRLY SURPRISE OR PREJUDICE THE APPELLEES AS THE NEW INFORMATION IT CONTAINED WAS MINIMAL.

¶7. This Court finds that the Appellants' cost to cure items in the initial appraisal were improper and correctly excluded by the lower court. The Appellants claimed that they were attempting to mitigate damages, but their initial appraisal did not adhere to the before and after rule. Additionally, the supplemental report filed by the Appellants was not seasonable because its admission would have prejudiced the Appellees by preventing them from preparing an adequate defense. Therefore, the lower court's granting of the Appellees' motion in limine was correct and its holding is affirmed.

STATEMENT OF FACTS

¶8. The Appellants' property consisted of 431 acres on Mathis Road near Crystal Springs, in Copiah County, Mississippi. The Appellees condemned 2.69 acres of this property in order to widen Mathis Road from 18 to 22 feet while obtaining a right-of-way 50 feet from either side of the road's centerline in the area of the Appellants' residence. The proposed widening of the road brought the new right-of-way within 11 feet from the porch of the Appellants' residence.

¶9. A trial was required in order to determine the damages. Both parties hired appraisers to determine the value of the property taken. The Appellees hired Hugh Hogue (hereinafter "Hogue") and the Appellants hired Connley Moak. As required by law, both appraisers filed a statement of values.

¶10. Hogue's appraisal, which valued the land taken at $750 per acre, added a nominal sum for temporary construction easements, and included $3,925 in cost to cure items. The items included the replacement of fencing and $1,000 for landscaping and replacement of a residential fence. Hogue basically appraised the total value of the property before the 2.69 acres was taken and after the land was taken to arrive at the overall damages owed to the Appellants. Hogue's total estimate of damages was $6,050.

ΒΆ11. Moak valued the land taken at $1500 per acre. Additionally, his original appraisal estimated the damage to the remainder of the property at $42,819.50 which included the following ...


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