MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 7/21/2016

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1 MISSISSIPPI SUPREME COURT OPINIONS HAND DOWN DATE: 7/21/2016 BAY POINT PROPERTIES, INC. v. MISSISSIPPI TRANSPORTATION COMMISSION, NO CA SCT Civil Topics: Eminent domain - Release of easement - Section (5) - Abandonment by nonuse - M.R.E M.R.E Value of property - Motion in limine - Appraisal of buffer - Jury instructions - Section Substantial evidence - Unencumbered value - Attorney's fees - Section Additur HON. JOHN C. GARGIULO HARRISON COUNTY CIRCUIT COURT WILLIAM ALEX BRADY, II, CHARLES STERLING LAMBERT, JR. CHRISTOPHER M. HOWDESHELL, JACK HOMER PITTMAN Presiding Justice Randolph Affirmed in part, reversed in part and remanded. Analysis: Bay Point Properties Inc. filed inverse condemnation proceedings against the Mississippi Transportation Commission, claiming the easement MTC had across Bay Point s property had terminated and that MTC was required to pay Bay Point the unencumbered value of the property. The jury determined that the easement, for which the Commission had paid $50,000, continued to encumber the property, but that the use by MTC was not a highway purpose. The jury awarded Bay Point the encumbered value of $500. Bay Point appeals. Issue 1: Release of easement Bay Point argues the trial court erred in granting MTC s motion in limine, limiting evidence of abandonment of the easement to the minutes of the Commission. Section (5) provides the process by which an easement for highway purposes terminates: All easements for highway purposes shall be released when they are determined on the minutes of the commission as no longer needed for such purposes[.] Per the statute, the easement could not have been abandoned by nonuse. Release (i.e., termination or abandonment) requires a determination on the minutes. Therefore, any evidence of abandonment other than minute entries is irrelevant and inadmissible under M.R.E. 401 and 402. Thus, the trial court did not err in limiting evidence of abandonment to what the statute requires. Issue 2: Value of property Bay Point argues that it filed a supplemental motion in limine to strike any testimony that its property was worth a nominal sum. However, Bay Point mischaracterizes its own motion. Bay Point s supplemental motion in limine requested only that the trial court bar the expert testimony of John Jeb Stewart[.] While the trial court denied the motion, Stewart did not Page 1 of 8

2 testify. Thus, Bay Point did not suffer any prejudice. Issue 3: Appraisal of buffer Bay Point argues the trial court erred in excluding evidence of an appraisal by MTC of the value of the five-foot buffer around Bayou Boisdore reserved to Walker in the agreed judgment. The five-foot buffer was reserved to Walker, and thus he retained rights in that property that he did not retain in the property subject to MTC s easement. The trial court found the evidence would be irrelevant and would serve only to confuse the jury, as the value of the buffer was not related to the value of the property, whether encumbered or not. Moreover, neither the park nor the highway sits on the buffer. Thus, there is no error. Issue 4: Jury instructions Bay Point argues the full and clear evidence standard in the instructions was erroneous. However, evidence of abandonment must be full and clear. D-7A presented the jury with three alternative findings. This instruction contains a correct statement of the law that was warranted by the evidence, given the testimony offered of the necessity to repair and/or replace the Highway 90 bridge that spans the Bay of St. Louis. Thus, there is no error. P-4 is a long and convoluted instruction. Among other things, it gives the jury a summary of Bay Point s position along with a summary of MTC s position. Instruction P-4 is premised on Bay Point s position that the easement terminated when MTC used the property for a nonhighway purpose, which fails to consider section s requirement that easements be declared as no longer necessary on Commission minutes before they are released. An instruction that incorrectly states the law, is covered fairly in another instruction or is without foundation in the evidence need not be given. Thus, the court did not err in refusing the instruction. Issue 5: Section Section provides that [t]he commission may acquire and have the Transportation Department develop publicly owned and controlled rest and recreation areas and sanitary and other facilities within or adjacent to the highway right-of-way reasonably necessary to accommodate the traveling public. Bay Point argues this section requires MTC to buy property used for rest and recreation areas in fee, and that the trial court erred in not instructing the jury to that effect. Even if MTC was required to acquire the property used for the park in fee, the value of the property depended on the existence, vel non, of the easement. If the easement continued to exist, compensation due to BayPoint would be the value of the property, subject to the easement. If the easement no longer existed, compensation due to Bay Point would be the value of the property, unencumbered by the easement. The jury determined the easement continued to exist and awarded Bay Point $500. That being the case, instructing the jury that MTC was required to acquire land used for rest and recreation areas in fee would not have affected the final result of the case, and therefore did not prejudice Bay Point. Issue 6: Substantial evidence The jury s verdict of $500 was supported by substantial evidence. The jury viewed the property. The appraiser-witnesses agreed that the unencumbered value of the property was $26 per square foot. Bay Point s appraiser refused to give an encumbered value. MTC s appraisers testimony about encumbered value was the only value presented to the jury. Page 2 of 8

3 Issue 7: Attorney s fees MTC used federal funds to finance construction of the park. Bay Point was the plaintiff in this inverse-condemnation proceeding. The jury rendered a verdict for the plaintiff in the amount of $500. Based on the jury verdict, the trial court rendered a judgment for the plaintiff in the amount of $500. Accordingly, all the requirements of section were met for an award of reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceeding. While it was within the trial court s discretion not to grant Bay Point s request for $680,000 in full, the court erred by failing to award any reimbursement at all. Such a result is in direct violation of the statute and therefore manifestly wrong. Issue 8: Additur Bay Point argues that the court erred by denying its motion for additur. An additur can be granted where the damages are inadequate because the jury was influenced by bias, prejudice, or passion; or the damages awarded were contrary to the overwhelming weight of the evidence. Here, the jury award of $500 was supported by substantial evidence. Thus, the refusal to grant an additur was not error. DISSENT Justice Kitchens joined by Justice King Page 3 of 8

4 Topics: Real property - Notice of appeal - M.R.A.P. 4(a) - Excusable neglect - M.R.A.P. 4(g) NUNNERY v. NUNNERY, NO CT SCT Civil - ON WRIT OF CERTIORARI HON. DEBBRA K. HALFORD PIKE COUNTY CHANCERY COURT DAVID NEIL MCCARTY, JEFFREY A. VARAS DAVID RYAN BRUHL, JOSEPH M. STINSON, DENNIS L. HORN Justice Coleman Affirmed. Analysis: After a final judgment was entered by the chancellor in a land dispute among family members, David and Jené Nunnery retained Attorney Jeffery Varas, who promptly filed a motion for new trial. Fifteen months after the motion was filed, the chancellor entered an order denying the motion. Less than a month later, Varas learned that his brother had been in a serious car accident and was in a coma in South Carolina. For the next four weeks, Varas traveled back and forth from Mississippi to South Carolina. He was unable to delegate his work responsibilities to anyone else. Consequently, he missed filing the notice of appeal in the case by the October 31, 2013, deadline. After his brother passed away, Varas returned to work and, realizing he had missed the deadline to file the notice of appeal, filed a motion on behalf of his clients for an extension of time to file a notice of appeal. The chancellor ruled from the bench that she was going to deny Varas s motion. Varas appealed the chancellor s order and the Court of Appeals affirmed. The Supreme Court granted certiorari. M.R.A.P. 4(a) requires that a notice of appeal... shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from. M.R.A.P. 4(g) allows a party additional time upon a finding of excusable neglect. In Pioneer Inv. Serv. Co. v. Brunswick Assocs. Ltd. P ship, 507 U.S. 380, 397 (1993), the U.S. Supreme Court adopted a four-part, excusable-neglect test: (1) the danger of prejudice to the [nonmovant], (2) the length of the delay and its potential impact on judicial proceedings, (3) the reason for the delay, including whether it was within the reasonable control of the movant, and (4) whether the movant acted in good faith. It is an appropriate guide for our courts. Here, from her bench ruling, it is clear that the chancellor rendered a factually driven decision that addressed at least three of the four factors - danger of prejudice, length of delay and its impact on the proceedings, and the reason for the delay. She noted her sympathy for Varas, but she also weighed the interests of the other parties to the litigation. She noted that two of the plaintiffs are elderly and remarked on the length of the trial and pretrial proceedings. She noted that another attorney had tried the case for Varas s clients. She noted that Varas had filed a motion for a new trial on June 29, 2012, but did not call up the motion for a hearing. In truth, the chancellor s expression of sympathy for Varas could be read as a finding that the defendants did not act in bad faith. If so, she considered all four of the factors. There was no error of law, and the chancellor s fact-based determination does not leave the Court with the definite and firm conviction that she erred. Page 4 of 8

5 DISSENT Presiding Justice Dickinson joined by Chief Justice Waller and Justice King Page 5 of 8

6 Topics: Possession of amphetamine - Lindsey brief - URCCC Section Habitual offender status RUSHING v. STATE, NO KA SCT HON. DAVID H. STRONG, JR. LINCOLN COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER: ERIN ELIZABETH PRIDGEN, GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS Justice Beam Affirmed. Criminal Analysis: Rodney Rushing was convicted of unlawful possession of six dosage units of amphetamine and sentenced to three years as a habitual offender. He appeals. Appellate counsel submitted a Lindsey brief stating no arguable issues existed on appeal. A review of the record shows that the only potential arguable issue in this case was the fact that Rushing s indictment was amended two days before trial to contain section habitual-offender status. URCCC 7.09 provides that amendments to indictments are permissible as long as the defendant is not unfairly surprised and has reasonable notice for preparation of a defense. Here, through formal pleadings filed two days in advance of trial, the State informed Rushing of its intent to seek enhanced punishment under section The State s motion provided details of Rushing s two prior felony convictions and sentences. The State submitted a sentencing order for each prior conviction in its motion to amend. At the pretrial hearing, Rushing s trial counsel indicated to the trial court that she and Rushing previously had discussed his prior convictions. At the conclusion of the hearing, the trial court found that Rushing s two prior convictions and sentences fall within the confines of section Based on the record, the State did not fail to provide Rushing adequate notice of its intent to seek enhanced punishment for Rushing as a recidivist under section nor was Rushing unfairly surprised by the State s amendment request. Thus, his conviction and sentence are affirmed. Page 6 of 8

7 RODGERS v. STATE, NO M Criminal - EN BANC ORDER Topics: Application for Leave of Supreme Court to Proceed on Motion for Post- Conviction Collateral Relief - Jury instruction - Ineffective assistance of counsel Presiding Justice Randolph Denied. James Rodgers has filed an Application for Leave of Supreme Court to Proceed on Motion for Post-Conviction Collateral Relief in Trial Court. Analysis: The Application is denied. Rodgers raises three claims of ineffective assistance of counsel failure to object to at peril language in the jury instructions, failure to raise the Castle Doctrine as a defense, and failure to rebut testimony of the State s forensic pathologist. The jury instruction claim was raised on direct appeal and in the petition for writ of certiorari. Thus, the claim is barred under the doctrine of res judicata. The remaining claims fail to meet the standard for ineffective assistance of counsel claims. OBJECT Justice Kitchens joined by Presiding Justice Dickinson and Justice King Page 7 of 8

8 WHITE v. STATE, NO CT SCT Criminal - ON WRIT OF CERTIORARI Topics: Burglary of dwelling - Meaning of larceny - Jury instruction - Intent HON. ALBERT B. SMITH, III QUITMAN COUNTY CIRCUIT COURT OFFICE OF THE STATE PUBLIC DEFENDER: ERIN ELIZABETH PRIDGEN, GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: JEFFREY A. KLINGFUSS Justice Beam Affirmed. Analysis: Richard White was convicted of burglary of a dwelling. The Court of Appeals affirmed his conviction. The Supreme Court granted certiorari. The jury found White guilty of burglary but acquitted him of aggravated assault. White appealed, arguing the trial court had erred in failing to instruct the jury regarding the elements of larceny and assault. In affirming White s conviction, a majority of the Court of Appeals found that the jury had been instructed on the elements of aggravated assault, and also found the jury had been fairly instructed on the underlying offenses of burglary, because [i]t was undisputed that the intruder stole the Inmans property and assaulted Newell. Complying with precedent, the trial court identified the specific crime White s indictment alleged he intended to commit, when it instructed the jury on the elements of burglary at the conclusion of White s trial. In defining intent, the trial court used the word larceny as a shorthand statement of its definition, i.e., to steal, take and carry away the goods of another with the intent to deprive the owner of his or her goods permanently and to convert same to the use of the taker. White s jury did not need a formal definition of the term larceny to understand its meaning and to apply that meaning to the evidence presented in this case. The State clearly met its burden on the second element, based upon the evidence presented at trial. Thus, use of the word larceny as it is commonly used and understood by the general public was sufficient in this case to define for the jury the requisite intent needed to support a conviction of burglary. DISSENT Justice King joined by Presiding Justice Dickinson and Justice Kitchens Page 8 of 8