        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CA-00404-COA


JIMMY W. ZEIGLER                                                            APPELLANT

v.

TIM NOLAN AND NANETTE NOLAN                                                 APPELLEES

DATE OF JUDGMENT:                          01/08/2013
TRIAL JUDGE:                               HON. JANNIE M. LEWIS
COURT FROM WHICH APPEALED:                 YAZOO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES H. POWELL III
ATTORNEY FOR APPELLEES:                    CHARLES W. WRIGHT JR.
NATURE OF THE CASE:                        CIVIL - CONTRACT
TRIAL COURT DISPOSITION:                   JURY VERDICT IN FAVOR OF APPELLEES
DISPOSITION:                               AFFIRMED – 09/16/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., ISHEE AND ROBERTS, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    Jimmy W. Zeigler filed a complaint against his sister and brother-in-law, Tim and

Nanette Nolan, in the Yazoo County Circuit Court, seeking damages for breach of contract.

The Nolans answered, claiming that the contract was unenforceable. After a trial on the

merits, the jury returned a verdict in favor of the Nolans. Zeigler filed a motion for a

judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial, which was

denied by the circuit court. Feeling aggrieved, Zeigler appeals and argues: (1) the circuit

court improperly excluded expert testimony at trial; (2) the verdict is contrary to the

overwhelming weight of the evidence; and (3) the verdict is the result of the jury’s bias and

prejudice.

¶2.    Finding no error, we affirm.
                                           FACTS

¶3.    In 1984, Zeigler moved out of his home, where he was living alone, and moved in

with his parents. At that time, Zeigler’s house had multiple defects, but according to Zeigler,

the house was livable. In 1985, Tim asked Zeigler if he and his family could rent Zeigler’s

house until they were able to build or buy a new home of their own. Zeigler stated that he

did not charge the Nolans rent, as the house needed some repairs. Zeigler claimed that Tim

agreed to finish the bedroom, fix the hole in the ceiling, finish the garage, and work on

anything else that needed to be finished in the house. The Nolans moved into the house, and

Zeigler explained that he believed that they would only be in the house for a few months.

¶4.    A couple of years later, the Nolans were still living in Zeigler’s house and, according

to Zeigler, had made some, but not all, of the repairs that they had agreed to make.

According to Zeigler, he spoke with Tim about the other repairs that Tim had agreed to

make. Zeigler contends that Tim gave an excuse but did not make the remaining repairs and

continued to live in the house after that conversation. At some point, Zeigler claims that Tim

told him that Tim could not afford to build a house for his family at that time and that it

would be four or five more years before they could move out of Zeigler’s house. Zeigler

testified that he agreed to let the Nolans stay another four or five years; however, the Nolans

lived in the house for a total of twenty-five years. Zeigler stated that he rarely visited the

house while the Nolans were living there. He added that he was guilty of being easy-going

and that he never made complaints about the lack of repairs that Tim had agreed to make.

He stated that he passed the house often and could recognize that the house was in bad shape.

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¶5.    Zeigler stated that by the time the Nolans moved out in June 2009, the house was “full

of clutter and in a state of total disarray.” According to Zeigler, he had another conversation

with Tim regarding repairs after Tim and his family moved out; however, Tim did nothing.

In December 2009, Zeigler had several pictures taken of the house that he claims depicted

the condition of the house at the time the Nolans moved out. Zeigler claimed that after the

photographs were taken, he talked to Nanette regarding damages to the house and asked her

to find out if they were going to pay him for the damages. About two weeks later, Zeigler

stated that he called Nanette, and she informed him that she and Tim would pay him for the

damages. Zeigler also told Tim during that same phone call that he would examine the house

to determine what needed to be fixed and how much it would cost to make the repairs. A

couple of weeks later, according to Zeigler, he told the Nolans that it would cost $50,000 to

repair the house, but no other conversations were had between him and the Nolans. The

Nolans did not pay Zeigler. In April 2010, Zeigler received $30,000 from his insurance

company for damage done to the house by a tornado. Zeigler claims that he did not spend

the money to repair the house because the house was practically worthless after the tornado.

¶6.    According to Tim, Zeigler and Nanette’s father insisted that the Nolans move into

Zeigler’s house in 1985. Tim maintained that he never agreed with Zeigler that, in lieu of

rent, he would maintain and improve the house while Tim and Tim’s family were living

there. Tim explained that after he and his family moved into Zeigler’s house, Zeigler came

to visit regularly. Tim claimed that Zeigler told him that he and his family could stay in the

house as long as they needed to, that Zeigler never asked for rent, and that Zeigler never

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made any complaints about the condition of the house. Tim also stated that he spent about

$75,000 working on Zeigler’s house over the twenty-five-year period that he and his family

lived in the house. Tim further stated that when Zeigler told him that Zeigler wanted $50,000

to repair his house, he told Zeigler that he did not have $50,000. Tim claimed that he and

Zeigler did not make an agreement obligating Tim to pay the $50,000 and that he had not

signed any such agreement.

¶7.    Nanette affirmed that after talking to her father, she and her family decided to move

into Zeigler’s house in September 1985. She claimed that they never had any discussion

with Zeigler about a rental agreement or contract. When they moved in, the condition of the

house was fair, but unfinished. Nanette stated that they paid for all of the improvements

made to the house during their stay there.

¶8.    As stated, after the trial, the jury found in favor of the Nolans. Zeigler filed a motion

for a JNOV or, in alternative, a new trial, which the circuit court denied. This appeal

followed.

                                       DISCUSSION

       I. Real Estate Expert’s Appraisal and Report

¶9.    Before the trial, the Nolans filed a motion in limine, requesting the exclusion of

evidence and testimony of Russell Perry, Zeigler’s real estate expert. During a Daubert1

hearing, Perry testified that he did an appraisal on the house in 2011. He explained that he



       1
           Daubert v. Merrell Dow Pharm. Inc., 509 U.S. 579 (1993).

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had to base his report on the pictures that had been taken in 2009, as the house had been

damaged by the 2010 tornado to such a degree that he would not have been able to do the

appraisal when he examined the house in 2011. Perry stated that he used market data from

the retrospective date, June 1, 2009, when appraising the property. He added that he did not

know if he was the first appraiser that ever utilized the methodology of relying on pictures

that depicted a home before it was destroyed to determine the value of the home. The Nolans

objected and stated that because Perry’s opinion was merely speculative and based on

assumptions, neither his testimony nor his report should be admitted. The circuit court held

that, under Rule 702 of the Mississippi Rules of Evidence, Perry’s report was inadmissible

and his appraisal was not reliable.

¶10.   Zeigler claims that the court erred in finding that Perry’s appraisal was not reliable

and that his testimony and report were inadmissible. Appellate courts review the admission

or exclusion of expert testimony for abuse of discretion. Hubbard ex rel. Hubbard v.

McDonald’s Corp., 41 So. 3d 670, 674 (¶14) (Miss. 2010). Rule 702 provides:

       If scientific, technical, or other specialized knowledge will assist the trier of
       fact to understand the evidence or to determine a fact in issue, a witness
       qualified as an expert by knowledge, skill, experience, training, or education,
       may testify thereto in the form of an opinion or otherwise, if (1) the testimony
       is based upon sufficient facts or data, (2) the testimony is the product of
       reliable principles and methods, and (3) the witness has applied the principles
       and methods reliably to the facts of the case.

“Expert testimony admitted at trial must be based on scientific methods and procedures, not

on unsupported speculation or subjective belief.” Hubbard, 41 So. 3d at 675 (¶16) (citing

Miss. Dep’t of Mental Health v. Hall, 936 So. 2d 917, 928 (¶31) (Miss. 2006)).

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       “The trial judge assumes the critical role as a gatekeeper in assessing the value
       of proffered expert testimony.” Webb v. Braswell, 930 So. 2d 387, 397 (¶16)
       (Miss. 2006). “The trial judge has the sound discreion to admit or refuse
       expert testimony[,] and the judge’s decision will stand unless the discretion he
       used is found to be arbitrary and clearly erroneous.” Troupe v. McAuley, 955
       So. 2d 848, 856 (¶19) (Miss. 2007) (quoting Poole v. Avara, 908 So. 2d 716,
       721 (¶8) (Miss. 2005)).

Coastal Hardware & Rental Co. v. Certain Underwriters at Lloyds, London, 120 So. 3d

1017, 1027 (¶46) (Miss. Ct. App. 2013).

¶11.   Perry explained that he based his report and his appraisal on photos of the home that

were taken in 2009, right after the Nolans had moved out, but before the tornado severely

damaged the house. He stated, “My appraisal is based on those photos, okay. But I can’t be

for certain because I did not take the photos, nor did I see the house at that time, okay.”

However, in 2011, Perry examined the house in person to verify that the floor plans matched

the pictures. He offered no authority for the proposition that it is acceptable in the real-

estate-appraisal industry to render an appraisal based solely on pictures taken by someone

else, although he did testify that followup appraisals, where a personal inspection of the

property is not done, are common. He explained that in those cases, the initial inspection is

done by an appraiser who actually inspected the premises and took pictures of the property.

In the case before us, the pictures were taken for the property owner approximately two years

prior to the property being appraised by Perry. As stated, when Perry performed the

appraisal, the house had been largely destroyed. On these facts, we cannot find that the

circuit court abused its discretion in not allowing Perry to testify as an expert concerning the

value of the house in 2009 or in not allowing his report to be admitted into evidence. This

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issue is without merit.

       II. Weight of the Evidence

¶12.   Zeigler argues that the verdict in this case is contrary to the overwhelming weight of

the evidence. “The standard of review for deciding whether or not a jury[’s] verdict is

against the overwhelming weight of the evidence is that [appellate courts] must accept the

evidence which supports the verdict as the truth and will reverse only if convinced that the

circuit court abused its discretion in not granting a new trial.” Richardson ex rel. Richardson

v. DeRouen, 920 So. 2d 1044, 1047-48 (¶7) (Miss. Ct. App. 2006) (citation omitted). A new

trial will not be ordered unless allowing the verdict to stand would sanction an

unconscionable injustice. Id. at 1048 (¶7).

¶13.   Zeigler offers no argument as to how the verdict is against the overwhelming weight

of the evidence. The court instructed the jury to return a verdict in favor of the Nolans if it

found that (1) the parties did not enter into a valid and binding contractual agreement, or (2)

the parties entered into a binding contractual agreement, but the Nolans did not breach the

contractual agreement. Although the parties gave conflicting testimony, the evidence is

sufficient to support a finding that the Nolans did not enter into a contract with Zeigler to

maintain or improve Zeigler’s home in lieu of rent or enter into an agreement to pay Zeigler

$50,000 for repairs after they moved out of the home. It is the responsibility of the jury to

resolve issues of credibility.    “When evidence is conflicting, we defer to the jury’s

determination of the credibility of witnesses and the weight of their testimony.” Phillips 66

Co. v. Lofton, 94 So. 3d 1051, 1061 (¶23) (Miss. 2012) (quoting Bickham v. Grant, 861 So.

                                              7
2d 299, 307 (¶34) (Miss. 2003)). Here, the jury apparently accepted Tim’s testimony as true.

Therefore, the jury’s verdict is not against the overwhelming weight of the evidence, and

allowing the verdict to stand will not sanction an unconscionable injustice. This issue is

without merit.

       III. Bias and Prejudice

¶14.   Zeigler further contends that the verdict is the result of the jury’s bias and prejudice

because the circuit court allowed the Nolans to introduce irrelevant and prejudicial testimony.

He argues that questions on cross-examination regarding the age of Zeigler’s farm

equipment, whether Zeigler paid his parents rent after he moved in with them, and whether

Zeigler’s father deeded him some land for a business, are all unrelated to his dispute with the

Nolans.

¶15.   “A new trial may be granted where the verdict is against the overwhelming weight of

the evidence, or when the jury has been confused by faulty instruction, or when the jury has

departed from its oath and its verdict is a result of bias, passion[,] or prejudice.” Id. at 1070

(¶58) (quoting Coho Res. Inc. v. Chapman, 913 So. 2d 899, 908 (¶28) (Miss. 2005)). Zeigler

does not provide any explanation as to how the testimony prejudiced him or created a bias

among the members of the jury. Zeigler merely argues that some of the questions that were

asked by the Nolans’ counsel were not relevant to his dispute with the Nolans. However, the

relevancy and admissibility of evidence are within the discretion of the circuit court. Byrom

v. State, 863 So. 2d 836, 878 (¶150) (Miss. 2003). Based on the record, we cannot say that

there was an abuse of discretion by the circuit court in allowing those questions and the

                                               8
respective answers or that the questions and answers invoked bias or prejudice by the jury

against Zeigler. This issue is without merit.

¶16. THE JUDGMENT OF THE YAZOO COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

   LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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