                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-CA-02167-SCT

TROWBRIDGE PARTNERS, L.P., A MISSISSIPPI
LIMITED PARTNERSHIP; PHIL MOORE; AND
NEAL CLEMENT

v.

MISSISSIPPI TRANSPORTATION COMMISSION


DATE OF JUDGMENT:                         09/07/2005
TRIAL JUDGE:                              HON. WILLIAM STRATTON AGIN
COURT FROM WHICH APPEALED:                MADISON COUNTY SPECIAL COURT OF
                                          EMINENT DOMAIN
ATTORNEYS FOR APPELLANTS:                 W. WHITAKER RAYNER
                                          STEPHEN W. RIMMER
ATTORNEYS FOR APPELLEE:                   RICKY L. BOGGAN
                                          ALAN M. PURDIE
NATURE OF THE CASE:                       CIVIL - EMINENT DOMAIN
DISPOSITION:                              AFFIRMED - 03/22/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    This appeal arises from an eminent domain proceeding brought by the Mississippi

Transportation Commission (hereinafter “the Commission”).         On April 22, 2004, the

Commission filed a complaint in the Madison County Special Court of Eminent Domain

against Trowbridge Partners (hereinafter “Trowbridge”) to condemn 5.05 acres of 8.45 acres

of undeveloped land in the City of Madison. The purpose of the condemnation was to

reconstruct and relocate a segment of State Route 463 from east of Interstate 55 to US 51 in
Madison, Mississippi. On November 15, 2004, the Madison County Special Court of

Eminent Domain awarded the Commission title and immediate possession of the condemned

5.05 acres. At the trial to establish just compensation, the Commission and Trowbridge

submitted differing evidence as to the value of the land taken. The jury returned a verdict

of $1,108,941, upon which judgment was entered. Trowbridge appeals the judgment of the

trial court.

                        FACTS AND PROCEDURAL HISTORY

¶2.     The condemned 5.05 acres are a part of an 8.45-acre tract of undeveloped land owned

by Trowbridge Partners, L.P., a Mississippi Limited Partnership, with two limited partners -

Phil Moore of Madison, Mississippi and Neal Clement of Jackson, Mississippi. The 5.05

acres that the Commission sought to condemn are located directly in the center of the 8.45-

acre tract of land. After the taking, the remainder of the subject property included two

smaller parcels of land. The parcel located in the northern corner of the subject property was

approximately 1.47 acres fronting Hoy Road. The parcel located in the southern corner of

the subject property was approximately 1.93 acres.

¶3.     The trial commenced on August 9, 2005, to establish the total amount of

compensation due to Trowbridge. At trial, the expert appraiser for the Commission, Terry

Wells, testified that size is an important factor in determining the value of property and that

smaller parcels are worth more per square foot than larger parcels. Wells also testified that

the subject property was zoned for C-2 or general commercial development. However, he

opined that despite the zoning restrictions, the highest and the best use of the remaining

property was for restricted commercial development.             During Trowbridge’s cross


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examination of Wells, he explained “that the remaining property would only be developed

as restricted commercial [development] for [an] office building or a dentist office or [a]

barber shop because it lacks access [to] a heavily-traveled road.” Wells opined that the fair

market value of the entire 8.45 acres immediately before the taking was $1,582,800, and that

the value of the remaining property immediately after the taking was $631,200, for a

difference of $951,600 total compensation due to Trowbridge.

¶4.    At the conclusion of Wells’s testimony, Trowbridge moved to strike his testimony

regarding the valuation of the subject property on two grounds. First, Trowbridge contended

that Wells’s testimony regarding the general appraisal guideline that smaller parcels are

worth more per square foot improperly enhanced the fair market value of the remainder

property. Secondly, Trowbridge asserted that Wells improperly disregarded the zoning

restrictions when determining the highest and best use of the remainder property.

¶5.    The trial court judge denied Trowbridge’s motion. The trial court ruled that Wells did

not offer any testimony stating that the remaining property would be enhanced by the

highway expansion project. The court further concluded that Wells testified only as to the

general appraisal rule when determining the value of smaller parcels of land. Lastly, the

court concluded that the Commission had no requirement to establish a potential zoning

change, because C-1 restricted commercial development is a lesser included use of C-2

general commercial development.

¶6.    The appraiser for Trowbridge, Hugh Hogue, offered his opinion that, because the

remainder property was zoned for C-2 development, the highest and best use of the property

was for retail commercial development. Hogue further testified that the fair market value of


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the 8.45 acres immediately before the taking was $2,208,492 and that the value of the

remaining property immediately after the taking was $286,189, for a difference of

$1,922,303 total compensation due to Trowbridge.

¶7.    After hearing the evidence and viewing the property, the jury returned a verdict in

favor of Trowbridge in the amount of $1,108,941 as just compensation. Trowbridge filed

a motion for Judgment Notwithstanding the Verdict (JNOV), with alternative motions for

Amendment of Judgment, or a New Trial and Additur. The trial court denied Trowbridge’s

motions. Trowbridge filed a timely notice of appeal. On appeal, Trowbridge raises two

issues: (1) Whether the trial court erred in allowing the Commission’s expert appraiser,

Wells, in his valuation to consider benefits conferred on the remainder property by the

taking; and (2) Whether the trial court erred in allowing Wells to testify that, although the

remainder property is zoned for C-2 general commercial development, the lesser included

use of C-1 restricted commercial development was the highest and best use of the property.

                                       DISCUSSION

¶8.    Generally, the admission or exclusion of expert testimony is within the discretion of

the trial judge. Terrian Enter. v. Mockbee, 654 So. 2d 1122, 1128 (Miss. 1995). However,

“[w]here a court has exercised its discretionary authority in such a way that it misperceives

the correct legal standard for admitting the evidence, the deference customarily afforded trial

courts in decisions concerning the admissibility of evidence is precluded, because the error

has become one of law.” Miss. Transp. Comm’n v. Fires, 693 So. 2d 917, 920 (Miss. 1997)

(citing Bean v. Broussard, 587 So. 2d 908, 913 (Miss. 1991)). This Court “will reverse for

erroneous interpretation or applications of the law.” Banks of Miss. v. Hollingworth, 609 So.

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 2d 422, 424 (Miss. 1992). Evidentiary objections which concern the appropriate legal

 standard to apply when determining the value of property in eminent domain proceedings are

 questions of law. Fires, 693 So. 2d at 920.

        I.      Whether the Trial Court Erred in Allowing the Commission’s
                Expert Appraiser, Terry Wells, During his Determination of Value,
                to Consider Benefits Conferred on the Remainder Property by the
                Taking.

¶9.     Trowbridge argues that Wells’s testimony that smaller parcels of land are worth more

per square foot enhanced the value of the two remaining parcels. Trowbridge cites two errors

in support of its position. First, Trowbridge alleges that the trial court committed error by

allowing Wells to make adjustments to the comparable sales used to determine the value of the

property before the taking, when he did not make any adjustments to the comparable sales used

to determine the value of the remaining property. The improper adjustments enhanced the per-

square-foot value of the two remaining parcels. Second, Trowbridge claims that Wells

improperly reduced Trowbridge’s award of damages by the alleged enhanced value of the

remaining parcels.

¶10.     In Mississippi State Highway Commission v. Hancock, the Commission condemned

the landowners’ property on both sides of Highway 49, to widen it to four lanes. Mississippi

State Highway Commission v. Hancock, 309 So. 2d 867 (Miss. 1975). The Commission

contended that the highway expansion project enhanced the value of the landowners’

remaining property. Id. at 871. After the taking, the landowners’ remaining land, although

previously classified by the Commission as farmland, was now also suitable and adaptable for

residential property. Id. “Thus, [the Commission contended that] the landowners will still have



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as much residential property as they had before the taking.” Id. The Commission sought to set

off the value of the enhancement from the value of the land taken. This Court held that:

        The rule in this state is that when a part of a larger tract of land is taken for
        public use, the owners should be awarded the difference between the fair
        market value of the whole tract immediately before the taking and the fair
        market value of the remaining property immediately after the taking, without
        considering the general benefits or injuries to the use of the taken land. This
        rule leaves no room for a deduction for any enhancement of the remaining land
        due to the nature of the facility to be built on the land taken. Furthermore, the
        landowner is entitled to due compensation not only for the value of the property
        actually taken, but also for the damages, if any, which may result to the
        landowner as a consequence of the taking without any deduction therefrom on
        account of any supposed benefits incident to public use for which the
        application is made.

Hancock, 309 So. 2d at 871 (citing Pearl River Water Supply Dist. v. Wood, 172 So. 2d 196

(Miss. 1965)).

¶11.    In Mississippi Transportation Commission v. Bridgforth, this Court reiterated its

previous holding in Hancock, that expert appraisers may not seek to set off the value of the

enhancement from the value of the land taken. Miss. Transp. Comm’n v. Bridgforth, 709 So.

2d 430 (Miss. 1998). In Bridgforth, the Commission asserted that the landowners’ property

in the “after” condition was still suitable for high intensity commercial purposes, although less

of the land was available for large-scale development. Id. at 440. This Court held that the

Commission’s argument was essentially the same as in Hancock. Id. Accordingly, the Court

ruled against the Commission. Id.at 440-41.

¶12.    Unlike the expert appraisers in Hancock and Bridgforth, Wells gave no testimony

stating that the value of the remainder parcels was enhanced by the taking. Wells testified only

that smaller parcels are worth more per square foot than larger parcels. This Court has held



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that size, use, location, topography, and other, like factors determine the value of land in

eminent domain proceedings. Sanderson Farms v. Miss. Highway Comm’n, 324 So. 2d 243,

244 (Miss. 1975). Additionally, this Court in Miss. Highway Comm’n v. Harvard, also held

that:

        the fair market value of the remainder of the property following the taking is a
        matter of common sense [sic] a product of the influence that numerous specifics
        respecting the taking may have in the market place. Accordingly, witnesses
        may testify concerning any specific quality, item or change in the property or
        its attributes, so long as this is ultimately related to the value of the property
        remaining after the taking.

Mississippi Highway Commission v. Harvard, 508 So.2d 1099 at 1101 (citing Wade Baptist

Church v. Miss. Highway Comm’n, 469 So.2d 1241, 1245 (Miss. 1985)). Wells’s testimony

that smaller parcels are worth more per square foot was relevant to the issue of the fair market

value of the remainder property. Because there is no evidence that Wells testified that the

highway expansion project would enhance the value of the remainder property or that he

reduced his assessment of compensation by the alleged enhancements, and for the reasons

discussed below, Trowbridge’s arguments are without merit.




                                               7
       A.      Adjustments for size to the comparable sales

¶13.   Wells considered seven comparable sales, with similar qualities to the sale in question,

to determine the fair market value of the property. Wells made positive adjustments for size

to the comparable sales that involved larger tracts of land than the condemned property.

However, in his determination of the value of the remainder property, Wells relied solely upon

the comparable sales that were similar in size to the remaining parcels. He did not consider

the comparable sales involving larger tracts of land, so he did not make adjustments for size.

Trowbridge alleges that the court erred in allowing Wells to make adjustments for size to the

comparable sales during his determination of value of the property before the taking, when he

did not make any adjustments for size to the comparable sales during his determination of

value of the remaining property. According to Trowbridge, Wells’s adjustments to the

comparable sales used to determine the fair market value of the property before the taking

improperly enhanced the fair market value of the remaining parcels. Trowbridge’s arguments

are without merit.

¶14.   Comparable sales must relate to and possess similar qualities to the land involved in

the sale. Miss. Transp. Comm’n v. Fires, 693 So. 2d 917, 923 (citing Miss. Highway Comm’n

v. Daniel, 108 So.2d 854 (Miss. 1959)). Moreover, recognizing the difficulty in finding

comparable real estate transactions with similar size, location, topography, and other like

factors, this Court allows appraisers to make adjustments to comparable sales to determine the

value of the subject property in eminent domain proceedings. See Fires, 693 So. 2d at 923,

Bridgforth, 709 So. 2d at 433. Therefore, the trial court did not err in allowing Wells during




                                              8
his determination of value of the remainder property to consider only the comparable sales

similar in size to the remaining parcels.

        B.     Deductions from just compensation for the enhanced value of the
               remaining property.

¶15.    In Hancock and Bridgforth, the Commission’s expert appraisers asserted that the

value of the remaining property was enhanced by the taking. Hancock, 309 So. 2d at 870.

Bridgforth, 709 So. 2d at 440. The expert appraisers also contended that the landowners’

damages should be reduced by the enhanced value of the remaining property. Hancock, 309

So. 2d at 870; Bridgforth, 709 So. 2d at 440. However, in both Hancock and Bridgforth, this

Court held that expert appraisers may not consider the enhanced value of the remaining

property when determining its fair market value. Hancock, 309 So. 2d at 870; Bridgforth, 709

So. 2d at 440. In this case, the Commission’s expert appraiser gave no testimony requesting

that Trowbridge’s damages be reduced by the enhanced value of the remaining property.

Moreover, the judge instructed the jurors not to consider any enhancements conferred on the

property by the taking.

¶16.    Despite the lack of evidence to support Trowbridge’s claim, it alleges that Wells

testified that there were various damages to the remainder property. Because Wells concluded

that the per-acre value of the remainder property was the same before the taking and after the

taking, Trowbridge finds error with his assessment of compensation. Trowbridge asserts that

Wells’s assessment of compensation did not account for all of the alleged damages to the

remainder property. Trowbridge directs this Court’s attention to Wells’s testimony and

explanation of his opinion as to the value of the remainder property.



                                              9
       Q.     What is that opinion?

       A.     It was the same as the value in the before, $4.30.

       Q.     And I’d like to point out that although we’re talking about the property
              in the before and the property in the after being two different sizes, the
              property in the after being a lot smaller than the before, I’m still
              indicating the same value per square foot; but you have a “different
              scenario” in the after as you did in the before.

       Q.     Mr. Wells, did you take into consideration the change in the access

              from 51 as opposed to the before and the after?

       A.     Yes, I did.

       Q.     All right. Now what if any other damage did you determine the

              landowner were [sic] due?

       A.     In the before scenario, we said that this property had frontage of
              approximately 1100 feet that ran along Hoy Road where any
              development could access the availability of utilities — water,
              electrical, and gas – that were, you know within easement along this
              right of way.

(Emphasis added).

¶17.   Trowbridge contends that Wells’s “different scenario” testimony supports its position

that he did not account for all the damages to the remainder property and that he reduced his

assessment of damages by the enhanced value of the remaining parcels. However, Trowbridge

takes Wells’s “different scenario” testimony out of the context in which it occurred. Before

giving his assessment of compensation, Wells explained that he relied on comparable sales to

determine the fair market value of the property. Wells further explained each comparable sale

and the adjustments made to ensure that they were similar to this sale. In each of the




                                             10
comparable sales, Wells made a positive adjustment for the irregular shape of the remaining

parcels and the additional cost of development.

¶18.    Wells’s testimony regarding the “different scenario” in the before and the after

condition of the remaining property relates to the irregular shape of the parcels and the

increased development cost. Although Wells did not agree with Trowbridge regarding the

extent of the damages to the remainder property, he made no error in testifying that the fair

market value of the remainder property was the same before and after the taking. Green Acres

Mem. Park v. Miss. Highway Comm’n, 246 Miss. 855, 863, 153 So. 2d 286, 289-90 (1963)

(holding that there is no requirement in eminent domain proceedings that an expert appraiser

regard the taking as damaging to the remainder).

        II.    Whether the Trial Court Erred in Allowing the Commission’s
               Expert Appraiser, Terry Wells, to Testify that the Remainder
               Property is Zoned for General Commercial Development but that
               the Lesser Included Use Restricted Commercial Development is the
               Highest and Best Use of the Property.

¶19.    Trowbridge argues that Wells improperly disregarded the zoning classifications when

determining the highest and the best use of the remainder property. Trowbridge relies on

Dennis v. City Council of Greenville, 646 So. 2d 1290 (Miss. 1994) and Mississippi Highway

Commission v. Wagley, 231 So. 2d 507, 509 (Miss. 1970) to support its argument that property

must be evaluated under the existing zoning restrictions; therefore, Trowbridge asserts, the trial

judge erred in allowing Wells to testify that the highest and best use was a lesser included use

of restricted commercial development, when the subject property was zoned for general

commercial development. Trowbridge also argues that Wells did not provide any evidence




                                               11
that a change in zoning was likely to occur, and instead, acted as if the subject property had

already been rezoned for restricted commercial development.

¶20.    In Dennis v. City Council of Greenville, the City’s appraiser testified that the highest

and best use of the property was for agricultural development, although the zoning

classification for the property was for residential development. Dennis v. City Council of

Greenville, 646 So. 2d 1290, 1291 (Miss. 1994). In Dennis, this Court reiterated its holding

in Mississippi Highway Commission v. Wagley that property in eminent domain proceedings

must be evaluated in accordance with the restrictions of existing zoning classifications, and

that consideration must be given to the impact potential zoning changes may have on the fair

market value of the subject property. Dennis, 646 So. 2d at 1294 (citing Wagley, 231 So. 2d

507, 509 (Miss. 1970)). This Court further held that the trial judge disregarded the existing

zoning restrictions. Id. The City’s appraiser evaluated the land under the restrictions of

agricultural development, although the property was zoned for residential development. Id.

This Court concluded that even if there was a potential change of the zoning classification of

the landowners’ property from residential to agricultural development, the City’s appraiser

evaluated the property as if the rezoning had already occurred, when no such changed had

occurred. Id.

¶21.    Clearly, this is not the same factual situation as the present case. Trowbridge’s reliance

on Dennis is misplaced for two reasons. First, in contrast to Dennis, the Commission’s expert

appraiser, Wells, did not conclude that the highest and best use of the property was a potential

use not allowed by the existing zoning restrictions. Instead, Wells opined that, although the

property was zoned for C-2 general commercial development, the highest and best use of

                                               12
property was for C-1 restricted commercial development, a lesser included use of property

zoned for general commercial development.

¶22.      Second, unlike this case, the trial court in Dennis refused to consider the valuation of

the landowner’s appraisers. Dennis, 646 So. 2d at 1293. The Court stated:

          [T]he trial court, by not allowing the landowners to put the testimony of expert
          appraisers into evidence regarding sales of lots for single-family residences,
          thereby prevented the landowners from substantiating their valuation and
          appraisals with comparables. Consequently, the landowners' evidence, which
          would have provided an alternative valuation for consideration and which may
          have refuted the City's valuation testimony which was supported by comparables
          of distant agricultural sales, was excluded from evidence by the trial judge.


Id. In the present case, the testimony of Trowbridge’s expert appraiser that the best use of

the subject property was retail commercial use was allowed. Therefore, valuations by both

parties’ expert appraisers were admitted to be considered by the jurors in reaching their

decision.

¶23.      Further, this Court’s discussion of expert valuation testimony in Potters II v. State

Highway Comm’n is particularly relevant to Mr. Well’s testimony in this case. Potters II v.

State Highway Commission, 608 So. 2d 1227, 1233 (Miss. 1992) The Court in Potters II

stated:

          Oftentimes parties to eminent domain proceedings proceed within broad, general
          use categories and talk of commercial use and residential use and the like. See,
          e.g., Howell v. State Highway Commission of Mississippi, 573 So. 2d 754, 755
          (Miss. 1990); Dykes v. State Highway Commission of Mississippi, 535 So. 2d
          1349, 1351 (Miss. 1988). On other occasions, not inappropriately, these broad
          categories are narrowed so that a highest and best use for a given property may
          be for multi-family residences as distinguished from single-family dwellings,
          see, e.g., Hudspeth v. State Highway Commission of Mississippi, 534 So. 2d
          210, 211 (Miss. 1988). Within commercial properties, there are many uses of


                                                13
       differing values. Franklin County Timber talks of sawmilling as the most
       profitable use. We think it fair on the present facts that expert valuation
       testimony may assume the highest and best use of subject property was as a fast
       food restaurant. We say this notwithstanding that MSHC Appraiser Pritchard
       limited himself to the broader characterization: commercial. Obviously, the
       extent to which the categories are narrowed is a matter of professional judgment
       and, within limits, experts may give their opinion regarding the appropriate
       level of specificity. (Emphasis added).


Id. Accordingly, we find that Well’s testimony that a lesser included use of the existing

zoning restrictions was the highest and best use of property for purposes of valuation was

permissible. Because Wells evaluated the subject property in accordance with the legal

parameters of the existing zoning restrictions, there was no requirement that any consideration

should have been given to potential zoning changes.

                                       CONCLUSION

¶24.   The trial court did not err in denying Trowbridge’s motion to strike the testimony of

Wells, the Commission’s expert appraiser. Where the testimony of the expert appraisers is

competent and relevant, the jury has the responsibility of considering the weight and credibility

of their testimony. Hancock, 309 So. 2d at 870. Wells is a competent expert appraiser, and

his testimony regarding the fair market value of the property was relevant to the issue of just

compensation. The jury evaluated the weight and credibility of Wells’s testimony and returned

a verdict in favor of Trowbridge in the amount of $1,108,941. This Court has a long-standing

history of not disturbing jury verdicts in eminent domain proceedings, especially when the jury

has viewed the property being taken and the evidence in the record supports the jury’s finding.

Miss. Highway Comm’n v. Harvard, 508 So.2d 1099, 1105 (Miss 1987) (citing Miss.

Highway Comm’n v. Franklin County Timber Co., Inc., 488 So. 2d 782, 787 (Miss.1986)).

                                               14
Since the jury had the opportunity to view the property, and its findings are supported by the

record, this Court affirms the judgment of the trial court.

¶25.   AFFIRMED.

     WALLER, P.J., EASLEY, CARLSON, DICKINSON AND RANDOLPH, JJ.,
CONCUR. DIAZ, J., CONCURS IN RESULT ONLY. COBB, P.J., AND GRAVES, J.,
NOT PARTICIPATING.




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