IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO CA ON APPEAL ApPEAL FROM THE SPECIAL COURT OF EMINENT DOMAIN, DESOTO COUNTY, MISSISSIPPI

E-Filed Document May 15 2014 09:38:09 2013-CA-01161 Pages: 26 IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO. 2013-CA-01161 LAVON W. COLEMAN APPELLANT v. MISSISSIPPI TRANSPORTATION COMMISSION APPELLEE ON APPEAL ApPEAL FROM THE SPECIAL COURT OF EMINENT DOMAIN, DESOTO COUNTY, MISSISSIPPI JUDGE OF THE SPECIAL COURT OF EMINENT DOMAIN, ALLEN B COUCH, JR. BRIEF OF APPELLANT ApPELLANT Oral Argument Requested SUBMIITED By: BY: MICHAELN. WAITS (MSB # 7002) BRADLEY T. GOLMON (MSB #10261) HOLCOMB, DUNBAR, WAITS, BEST, MASTERS & GOLMON, P.A. Post Office Drawer 707 Oxford, Mississippi 38655 (662) 234-8775 COUNSEL FOR ApPELLANT APPELLANT

IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO. 2013-TS-01161 LAVON W. COLEMAN APPELLANT v. MISSISSIPPI TRANSPORTATION COMMISSION APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned attorney of record certifies that the following persons have an interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification or recusal. 1) Lavon W. Coleman, Appellant. 2) Michael N. Watts and Bradley T. Golmon, HOLCOMB, DUNBAR, WATTS, BEST, MASTERS & GOLMON, P.A., counsel for Appellant. 3) Mississippi Transportation Commission, Appellee. 4) Richard G. Noble, CROSTHWAIT, TERNEY & NOBLE, PLLC, counsel for Appellee. 5) Honorable Allen B. Couch, Jr., Trial Court Judge.

IN THE SUPREME COURT OF MISSISSIPPI CAUSE NO. 2013-TS-01161 LAVON W. COLEMAN APPELLANT v. MISSISSIPPI TRANSPORTATION COMMISSION APPELLEE STATEMENT REGARDING ORAL ARGUMENT Pursuant to Rule 34(b) of the Mississippi Rules of Appellate Procedure, Appellant Lavon W. Coleman respectfully requests that oral argument be granted. The issues presented in this appeal would be significantly aided by oral argument inasmuch as this appeal involves the issue of the taking of property without due process of law contrary to the Fifth Amendment of the United States Constitution and oppression of the public by the Mississippi Transportation Commission. Oral argument should be granted in the case sub judice in an effort to promote a just and fair adjudication ofthe issues presented. 11

TABLE OF CONTENTS Page CERTIFICATE OF INTERESTED PERSONS...................... i STATEMENT REGARDING ORAL ARGUMENT................. ii TABLE OF CONTENTS... iii TABLE OF AUTHORITIES......... iv STATEMENT OF ISSUES... 1 STATEMENT OF THE CASE... 2 COURSE OF PROCEEDINGS BELOW... 4 STATEMENT OF FACTS... 5 SUMMARY OF THE ARGUMENT... 6 ARGUMENT................. 7 1. The Trial Court improperly excluded evidence of the sum of the "quick take" deposit 7 2. The Trial Court improperly excluded questioning of the Transportation Commission's chief witness 11 3. The Trial Court erred in granting the Motion for a Directed Verdict on the basis of the unrebutted testimony of the MTC appraiser 13 4. The Trial Court erred in granting the Motion for a Directed Verdict 18 CONCLUSION... 21 CERTIFICATE OF FILING AND SERVICE... 19 111

TABLE OF AUTHORITIES Cases Page Morley v. Jackson Redevelopment Authority, 632 So. 2d 1284 (Miss. 1994)........ 7,8,9, 12 United States v. 320.0 acres of land, 605 F.2d 762 (5 th Cir. 1979)............ 9, 10, 12 North Biloxi Development Co. v. MTC, 912 So. 2d 1118 (Miss. App. 2005).............. 10 Toyota Motor Company, LTD. v. Sanford, 375 So.2d 1036,1039 (Miss. 1979)........... 14 Dickey v. Parham, 295 So.2d 284,286 (Miss. 1974)......................... 14 Williams v. State, 354 So.2d 266, 268 (Miss. 1978).......................... 15 Pounders v. State, 335 So.2d 904, 905 (Miss. 1976)................................ 15 Sheldon v. Metro-Goldwyn Pictures Corp., 390 U.S. 390,408-09 (1949)........... 15 Eason v. Weaver, 484 F.2d 459, 460 (5 th Cir. 1973)............ 15 Davis v. Hill Engineering, Inc. 549 F.2d 314,321 (5 th Cir. 1977)...................... 16 Hoover v. United Services Automobile Assoc., No. 2011-CA-01486-SCT, ~ 15 (Miss. November 2013)...................................... 16 Tunica County v. Matthews, 926 So.2d 209, 215 (Miss. 2006)....... 17 Constitution U.S. CONST. Amend. V.......................... passim Statutes and Rules Mississippi Rule of Evidence 408.................................. 8 Mississippi Rule of Evidence 801 (a)(2)..................... 9 Mississippi Code Section 11-27-85(1)-(2)....................... 9, 11 IV

STATEMENT OF ISSUES 1. Whether or not the Trial Court improperly excluded evidence of the sum of the "quick take" deposit? 2. Whether or not the Trial Court improperly excluded impeachment questioning of the Mississippi Transportation Commission's appraiser? 3. Whether or not the Trial Court erred in basing the grant of the Motion for Directed Verdict on the unrebutted testimony of Mississippi Transportation Commission's expert appraiser? 4. Whether or not the Trial Court erred in granting the Motion for a Directed Verdict? 1

STATEMENT OF THE CASE In this eminent domain case there was a stark variance between the "quick take" deposit, in the sum of $380,300.00, and the sum of the just compensation position taken by the Mississippi Transportation Commission ("MTC") in the amount of only $289,400.00. At trial the landowner, Lavon Coleman ("Coleman") attempted to enter into evidence public records from the Court's own file showing the sum of the "quick take" deposit and the notation of "FMVO" in that amount. That attempt was denied by the Court. When Coleman subsequently attempted to ask MTC's appraiser about any prior appraisal or the time frame of the just compensation appraisal, MTC objected and the Trial Court sustained the objection, denying the jury the right to hear this potential impeachment. MTC successfully moved to exclude Coleman's appraiser and on that basis alone was granted a Motion for Directed Verdict and a judgment for damages against Coleman. That Judgment, and the Order Granting Directed Verdict, were based solely on the finding that Defendant had no factual proof to contradict the opinion testimony of MTC's expert, William Milton, and as MTC had made its primajacie case, Coleman would be unable to carry her burden without some factual evidence of value. Coleman was improperly restricted from submitting contrary factual evidence of value when the Court excluded any reference to the $381,300.00 deposited by the government. Had the fact of that deposit been allowed into evidence and had it been allowed for cross examination then the valuation supporting that deposit would have come to light and Defendant would have had factual proof contrary to the testimony of Milton and the 2

Directed Verdict would have been denied. Further, the Directed Verdict was based on the unrebutted expert testimony of the MTC appraiser but that expert testimony was not conclusive, it was only advisory and the jury had the right to accept or reject it. The grant of the Motion for Directed Verdict was improper. This was a manifest injustice and requires reversal and remand. 3

COURSE OF PROCEEDINGS BELOW Mississippi Transportation Commission ("MTC") filed this eminent domain suit in the Special Court of Eminent Domain, DeSoto County, Mississippi. Excercising it's "quick take" powers pursuant to Mississippi Code Annotated Section 11-27-85, MTC deposited the "quick take" sum of$380,300.00. Lavon W. Coleman ("Coleman") accepted those funds and the Court entered an Order for Immediate Possession. Despite the sum of its "quick take" deposit, at trial MTC took the position that just compensation for the taking amounted only to $289,400 and demanded judgment against Coleman for the difference. Coleman attempted to enter into evidence public records showing the sum of the "quick take" deposit but that attempt was denied by the Court. MTC put on proof of the $289,400 valuation, but none about the basis for the $381,300 "quick take" deposit. The Trial Court prevented Coleman from asking the MTC appraiser about any other appraisal he had done, about the basis for the "quick take" deposit, or even about the time frame of the $289,400 valuation. MTC successfully moved to strike Coleman's appraisal and on that basis moved for a Directed Verdict. The Trial Court granted the motion and on March 8, 2013 entered its Order Granting Directed Verdict. Coleman filed her Motion for a New Trial on March 15, 2013. The Trial Court denied that Motion for a New Trial. Coleman then filed her Notice of Appeal. 4

STATEMENT OF FACTS Mississippi Transportation Commission filed its eminent domain complaint against Coleman on September 7, 2010. (R. 9) Later that month, on September 30, an independent appraiser was appointed. (R. 23) On October 8, 2010 that appraiser returned his valuation in the sum of$288,455.00. (R. 28). The Court granted MTC immediate possession on October 21, 2010. (R. 45). On November 5, 2010, MTC made its "quick take" deposit in the sum of $381,300.00, $1,000 of which was intended to pay the court appointed appraiser. (R. 20, Exhibit 13-I.D.) A notation on a copy ofthe Order for Immediate Possession contains the handwritten notation "$380,300.00 FMVO." (R.20, Exhibit 13-I.D.) That $1,000 was used in that fashion leaving $380,300.00 as the actual "quick take" deposit. (R. 20, Exhibit 13-I.D.) According to Mississippi Code Annotated Section 11-27-85(2) that deposit must be at least 85% of the "amount of compensation and damages as determined by the appraiser...." MTC filed a Statement of Value on December 22,2010 in the sum of $289,400.00. (R.51). MTC never sought to draw down those funds and on February 23, 2011 the Court authorized Coleman, by order, to withdraw the entirety of the "quick take" deposit. MTC refused, at the trial of the case, to explain to the Court the marked difference between the "quick take" deposit and the Statement of Value and prevented Coleman from asking about the contradictory evaluations and positions taken by MTC. 5

SUMMARY OF THE ARGUMENT The trial court erred in excluding reference to the sum of the "quick take" deposit and further erred in refusing to allow Coleman to cross-examine the MTC appraiser about any appraisal that may have supported the deposit or the time frame of the appraisal that supported the Statement of Value. If the Trial Court had properly allowed the public record evidence of the sum of the "quick take" deposit or if the Trial Court had allowed cross examination of MTC's appraiser on those points, then contrary evidence, factual evidence that would impeach the testimony ofmtc's appraiser would have been presented and would have prevented the granting of the Motion for Directed Verdict. Further, expert appraiser testimony is only advisory to the jury and is not conclusive. The fact that it was unrebutted did not entitle MTC to a Directed Verdict. 6

ARGUMENT 1. The Trial Court improperly excluded evidence of the sum of the "quick take" deposit In its ruling prior to the beginning of testimony, the Court excluded all reference to any valuation that might support the "quick take" deposit. THE COURT: Okay. Well, in any event, what I do know is that this money was deposited after the filing of the complaint. Eminent domain cases are unique in that some of these offers are mandated by statute. They're required to be made, and they've got -- there's a foundation for that, and so you may not necessarily be able to escape Rule 408 - Mississippi Rule of Evidence 408. All I do know based on what has been presented to me this morning, the morning of the trial, is that this money was tendered after the claims had arisen, and the claim arises when the complaint is filed, September 17, 2010. The money was deposited a couple of months later. And, therefore, I find on what is before me that this is an offer of settlement and compromise and should be excluded. Transcript, Page 57, Lines 1-16. This rationale was specifically rejected by the Mississippi Supreme Court in Morley v. Jackson Redevelopment Authority, 632 So. 2d 1284 (Miss. 1994) where the Court said to do so would prevent "the owner from entering into evidence or using as impeachment [a] highly relevant appraisal... " Morley 632 So.2d at 1292. In that case the Court reversed and remanded the case on the basis of the trial court's decision to grant a Motion in Limine to exclude a prior valuation done by an alternate government appraiser. ld. at 1291. This case had to do with the King Edward hotel in downtown Jackson. ld. at 1287. The Development Authority first hired Tate who returned an appraisal in the amount of$375,500.00. ld. The Development Authority then offered that sum to the property owners and it was rejected. ld. Subsequent to 7

that date the Development Authority hired Davis who returned a valuation of $865,500.00. Id. The Authority offered that to the landowners and the landowners rejected it.!d. At trial, the government presented only the appraisal of Tate in the amount of $375,500.00.!d. at 1288. A Motion in Limine was filed to exclude all reference to the higher valuation prepared by Davis.!d. at 1291. The Court granted that Motion in Limine, excluding the higher valuation prepared by the condemning authority.!d. The owner appealed. The issue on appeal was whether or not the trial court erred in excluding the Davis appraisal. The Supreme Court stated that the decision was error. "[T]he trial court's decision to grant the Motion in Limine improperly prevented the owners from entering into evidence or using as impeachment the highly relevant appraisal done by Davis."!d. at 1292. The ultimate result was that the case was reversed and remanded back to the Special Court of Eminent Domain.!d. at 1298. That should be the resolution of this appeal. The basis for the exclusion of this fact, not opinion, evidence was that Mississippi Rule of Evidence 408 excludes offers of settlement. The error is that Rule 408 was applied far more broadly than it is even written. MTC argued that any reference to the $380,300.00 on deposit would violate Mississippi Rule of Evidence 408 and the Court agreed. However, the Court in Morley stated just the opposite. "[T]his does not dispose of the question of whether the appraisal on which the offer is based is inadmissible, since Rule 408 further provides that, 'This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."'!d. at 1291-92. The appraisal behind the "quick take" sum, and the "quick take" sum itself was a statement against interest. In Morley, the Mississippi Supreme Court also found that the decision 8

of the "condemning authority supporting the valuation was a statement against interest under Mississippi Rule of Evidence 804(b)(3). Id. at 1293. In the case below, no one forced the government to deposit $380,300.00 just one month after the Brewer appraisal was filed, with a valuation of$288,455.00, and six or seven weeks before the government's own SOY was filed, with a valuation of $289,400.00. The government never sought to draw down those funds to 85% of $289,400.00. Under Mississippi Rule of Evidence 801 (a)(2) nonverbal conduct can be a statement if "it is intended by the person to be an assertion." What is the point of a deposit of funds in a quick take action? The point is to comply with Mississippi Code Section 11-27-85(2), which mandates a deposit of at least 85% of the "amount of the compensation and damages as determined by the appraiser..." Subsection (1) provides that upon that deposit, the Court may enter an order for immediate title and entry. In this case, the Order Granting Immediate Possession was filed more than two weeks before the deposit was even made. If the deposit is 85% of "the amount of the compensation and damages as determined by the appraiser" then the government may have a valuation in the amount of$447,411.76, but Coleman was not allowed to question the government about this valuation. The United States Circuit Court of Appeals for the Fifth Circuit agrees with Morley. The Court in Morley, relied on United States v. 320.0 acres of land, 605 F.2d 762 (5th Cir. 1979). In that case, the Fifth Circuit was dealing with a series of bench trials, consolidated for appeal, which had to do with condemnation ofland for Everglades National Park. 320.0 acres, 605 F.2d at 768. The trial court excluded testimony relating to the pre-trial offers by the government. Id. at 822-823. Early offers to two landowners were in the amount of $80,000.00 and $20,000.00 respectively. Id. at 823. At trial the government only presented evidence that the just 9

compensation was $64,000.00 and $12,000.00 for these two landowners. Id. at 824. One of the landowners sought to introduce the earlier valuation as a statement against interest, but the trial court excluded that proof. Id. at 823-24. The Fifth Circuit found that the trial court committed error in excluding that proof, stating that while such pre-trial valuations were not binding on the government, they were admissible to impeach the government. Id. at 825. The government could present testimony to explain the difference, but the difference was admissible. Id. "[T]he Government is not completely free to play fast and loose with landowners in telling them one thing in the office and something else in the courtroom." Id. That's just what MTC did in this case, and those actions were contrary to Morley and contrary to 320.0 acres a/land. MTC is hiding something and it could be a valuation in the sum of$447,411.76, if the "quick take" deposit is 85% of the valuation. Another decision by the Mississippi Court of Appeals informs that the details of the "quick take" process may generally be disclosed to the jury. In North Biloxi Development Co. v. MTC, 912 So. 2d 1118 (Miss. App. 2005), MTC sought jury instruction P-2: The Mississippi Transportation Commission is entitled to acquire property for highway purposes through statutory procedures and the deposit of funds for the benefit of the landowner as ordered by the Court. In this case, the Mississippi Transportation Commission was awarded title and possession of the property on October 18, 2001 by Order ofthis Court. In your decision to award just compensation you shall not consider the fact that the Mississippi Transportation Commission has acquired the subject property and begun construction of the new highway. North Biloxi, 912 So.2d at 1123-24. The landowner objected to this instruction, Id. at 1124, but the trial court allowed it, finding that it was proper. On appeal, the Court stated "Instruction P-2 was necessary to explain the authority of MTC to take a property by eminent domain and was a correct statement of the so called 'quick 10

take law.' The fact that the instruction tells the jury that there has been a deposit of funds to the benefit of the landowner by MTC is no more than a summary of Mississippi Code Annotated Section 11-27-85 (2) (Rev 2004)." Id. at 1124. The instruction provided a true and correct statement of the statutory procedure involving the eminent domain quick take process and there was no error in disclosing that the truth of that process to the jury. In the court below Coleman was attempting to disclose the truth of the "quick take" process to the jury, but the court prevented her from making any reference whatsoever to the "quick take" deposit of $380,300.00. Despite the highly relevant fact that it was deposited by the government and was bookended on either side by statements relating to value that were approximately $100,000.00 less, Coleman could not pursue that line of questioning and was denied the powerful impeachment value of it. This is a monumental discrepancy and the government must have had some reason why it made this deposit. The reasons for this deposit and the truth about this deposit were hidden from the jury. Why did MTC deposit those funds? No one knows because the government is hiding that information. No one knows because they would not answer that question in discovery. No one knows because the Defendant could not ask about it at trial. Because this highly relevant proof never got to the jury, this case should be reversed and remanded. 2. The Trial Court improperly excluded questioning of the Transportation Commission's chief witness After the Court excluded the public record evidence of the "quick take" deposit, Coleman attempted to question MTC's appraiser about any other valuation he may have performed. The testimony, objection and ruling were as follows: Q. Yes, sir, and I'm going to read this. 11

"Were you involved in any kind of initial preliminary appraisals on this property?" MR. NOBLE: Your Honor, may we - THE COURT: Approach. MR. NOBLE: May we approach? THE COURT: Approach. (WHEREUPON, A CONFERENCE WAS HELD AT THE BENCH AMONG COURT AND ALL COUNSEL OUTSIDE THE HEARING OF THE JURY AS FOLLOWS:) MR. NOBLE: You've already ruled. We've already argued it. Prenegotiation, fair market value offer, that's where he's going, Your Honor. MR. WATTS: No, it's not. MR. NOBLE: I object completely. MR. WAITS: That's not where I'm going. It's going to the fact that he testified that his -- that his opinion was done close in time. It wasn't done close in time. It was done in February of 2009. He admitted it in his deposition. He just testified on direct that the closer in time you get the more accurate it is. Yet, he did it In February of 2009. MR. NOBLE: Your Honor, we've ruled -- you've ruled on the prenegotiation, fair market. You've got by Federal mandate to make that prenegotiation appraisal, to make that offer. MR. WATTS: It has nothing to do with the -- MR. NOBLE: It's exactly -- Mike, it's exactly what it is. THE COURT: Let me see the deposition. MR. NOBLE: Look at it. He's got to do that before by statute, Your Honor. THE COURT: I understand. He's also testified that he did one after the date of filing. MR. NOBLE: After filing my appraisal came in. THE COURT: Okay. In addition to that? MR. NOBLE: Right. MR. WATTS: I didn't hear him say it in direct, Your Honor. Maybe I missed it. THE COURT: I heard it. I'm going to sustain that. Do not go anywhere near that. Transcript Page 133, lines 12-29 and 134 lines 1-23. The witness for the MTC clearly performed an earlier appraisal and a later appraisal. On direct he testified that he performed an appraisal after the date of filing and the Court confirmed that above. Under Morley and 230.0 acres of 12

land Coleman should have been allowed to question this witness concerning the time frame of his examination and whether he had performed any other examinations and if he knew of any valuation that supported the "quick take" deposit. But the court told Coleman "Do not go anywhere near that." It was error to do so. This case should be reversed and remanded. 3. The unrebutted testimony of the appraiser was insufficient for the grant of a Motion for Directed Verdict The court below granted the Motion for a Directed Verdict because the expert appraisal opinion testimony of the MTC appraiser was unrebutted. THE COURT: Well, a motion for direct verdict is, I guess, very similar to a summary judgment in that there are no disputed facts left to present to a jury, and that it only -- what remains is a question of law. Eminent domain is a bit unique in civil law in that there is a shifting of burdens in the trial. Citing this Petri case, again, that I mentioned a couple of times, Gulf South Pipeline vs. Petri, 35 So.3d 494, which cites a much older case, Ellis vs. Mississippi State Highway Commission found at 487 So.2d 1339, puts forth the rule in eminent domain that once the plaintiff, the condemning authority, makes a prima facie case for damages the burden shifts to the landowner, and for the landowner to receive more compensation than is shown, he must go forward with evidence showing such damage. And in this particular case, the defendant landowner will be unable to do so because of the exclusion of the appraisal testimony. So with that I'm going to grant the plaintiffs motion for directed verdict in the amount established by Mr. Milton, $289,400. If you will, prepare an order to that effect. MR. NOBLE: Yes, sir. Transcript Page 175, Lines 5-27. The testimony of the MTC appraiser was that, in his expert opinion, the value of the taken property was $289,400. This was his opinion. The jury should have been allowed to consider that opinion and accept or reject it. The Mississippi Model Jury instruction states the proposition in this way: During the trial, you heard testimony from an expert witness. The law allows an expert witness to give [hislher] opinion about issues in [hislher] area of expertise even if [he/she] did not witness any ofthe actions or events involved in this trial. 13

You do not have to accept the expert witness's opinion. As with any other witness, it is up to you to decide whether you believe the expert witness's testimony and whether you choose to use it as a basis for your decision in this case. You may believe all, a part, or none of the expert witness's testimony. Model Instruction No. 213 Expert Witness testimony MTC's expert appraisal testimony was just opinion testimony and was merely advisory to the JUry. The Mississippi Supreme Court, in Toyota Motor Company, LTD. v. Sanford, reinstated a jury verdict that had been increased by the trial judge to a dollar figure described by an unrebutted expert economist. 375 So.2d 1036,1039 (Miss. 1979). The expert economist had testified that damages amounted to $157,894.00. Sanford, 375 So.2d at 1037. This was "based largely, if not entirely upon the testimony of an 'expert economist.,,, Id The jury had returned a verdict of only $40,000.00. Id The Supreme Court ruled that the unrebutted testimony of the expert economist was merely advisory and the jury was well within its rights to return a verdict at variance with that unrebutted expert testimony. Id at 1039. The additur was reversed and the jury verdict reinstated. Id In Dickey v. Parham there was expert economist testimony on the issue of future earnings and that testimony, unrebutted, was that the proper sum was $162,845.65. 295 So.2d 284,286 (Miss. 1974). The Court there stated "[o]f course, such testimony is only advisory and is not binding upon the court." Dickey, 295 So.2d 286. In that case the jury verdict was so "grossly inadequate as to require reversal" but the unrebutted expert testimony was not substituted for the jury verdict, it was remanded, so that a subsequently impaneled jury could assess the damages. Id 14

This principle, that unrebutted expert testimony is not conclusive, can also be found in criminal cases. Unrebutted expert testimony on the issue of the sanity of a criminal defendant is not conclusive. Williams v. State, 354 So.2d 266, 268 (Miss. 1978); Pounders v. State, 335 So.2d 904,905 (Miss. 1976). In both of those cases expert psychiatrists testified that the accused did not appreciate the nature and consequences of his actions and did not know those actions were wrong and in both cases the Mississippi Supreme Court stated "[t]he expert opinions of the psychiatrists were not conclusive upon that issue." Williams, 354 So.2d at 268; Pounders, 335 So.2d at 905. This principle has also been affirmed by the United States Supreme Court. In Sheldon v. Metro-Goldwyn Pictures Corp., the Court affirmed a lower court decision to select a 20% profit margin, rather than the unrebutted testimony ofthe experts. 390 U.S. 390, 408-09 (1949). Experts had testified that the profit margin was between 5% and 12%. Sheldon, 390 U.S. at 408. That testimony was entirely unrebutted. Id. It was, however, rejected by the trial court and the trial court imposed a 20% profit margin. Id. This was affirmed with the following statement: "But the court below was not willing to accept the experts' testimony 'at face value.'"!d. The finder of fact, whether the Court or the jury, is free to accept or reject unimpeached expert valuation testimony. The United States Circuit Court for the Fifth Circuit has stated that unimpeached expert opinion testimony may be actually ignored by the find of fact. In Eason v. Weaver, the finder of fact was a judge. "The weight to be accorded to unimpeached expert opinion evidence is solely for the judge sitting without a jury. While he may consider such testimony, he is not bound to accept it." Eason v. Weaver, 484 F.2d 459,460 (5 th Cir. 1973). While that was an automobile 15

accident diversity case, it did involve a damages calculation on lost wages. Eason, 484 F.2d at 460. An expert for the plaintifftestified as to that calculation, but the trial judge, sitting as the finder of fact, rejected that testimony and on appeal the Fifth Circuit affirmed. Id. at 460. This proposition was again repeated by the Fifth Circuit in Davis v. Hill Engineering, Inc. 549 F.2d 314,321 (5 th Cir. 1973). In that case the Court entered a damages verdict varying from the unimpeached expert testimony that was presented. Davis, 549 F.2d at 321. That expert had testified to a discount rate of 2.9 percent, but the trial court applied a rate of 5.4 percent. On appeal the Fifth Circuit, affirmed, but on remand asked the trial court to recalculate using a discount rate of 6 percent. Id. at 335. The Fifth Circuit did not require the finder of fact to accept the unimpeached expert testimony. Our Supreme Court recently rejected the kind of argument made by MTC, finding that even in the face of "overwhelming" proof that damage to a structure was of an excluded type, homeowners were still entitled to a jury determination of the sum of damages. Hoover v. United Services Automobile Assoc., No. 2011-CA-01486-SCT, ~ 15 (Miss. November 2013). In that case homeowners sued their insurer for failure to pay a claim. ~ 1. At trial they put on proof of damages. ~ 2. The defendant then put on proof, uncontradicted and "overwhelming" that the cause of the casualty was excluded by the terms of the policy. ~ 5. The trial court agreed and directed a verdict for the insurer, specifically finding that the Plaintiff "should have put on something to show that it was other than surge..." and because they did not, the insurer should prevail. ~ 15. On appeal the Mississippi Supreme Court reversed and remanded. ~ 30. Despite the "overwhelming" proof and the fact that the Plaintiff had not evidence to contradict the 16

insurer's expert, the Court found that it was for the jury to decide, specifically stating that for remand. ~ 3 1. The Mississippi Supreme Court, even within the boundaries of an eminent domain case, allows the jury to accept or reject expert opinion testimony. We have long held that the jury may reject or accept any expert testimony it chooses in cases involving land valuation. "The jury in the trial of a case of this kind is not required to accept the opinion evidence of an expert witness who testifies for the land owner or the county. The jury may disregard the testimony of a witness whose testimony the jury has reasonable grounds to believe is worthless." Warren County v. Harris, 211 Miss. 80, 88, 50 So.2d 918,920 (1951). In addition, the jury had the opportunity to inspect the subject land in this case, and was to use this, too, in coming to its decision. "The opinions of experts as to values in cases of this kind are not to be passively received and blindly followed, but are to be weighed by the jury and judged in view of all of the testimony in the case and the jury's own general knowledge of affairs, and are to be given only such consideration as the jury may believe them entitled to receive." Id. at 921. This rule is often cited in Mississippi case law. See, e.g., Miss. State Highway Comm In v. Madison County, 242 Miss. 471, 480, 135 So.2d 708, 712 (1961); N. Biloxi Dev. Co., L.L.C. v. Miss. Transp. Comm'n, 912 So.2d 1118,1126 (Miss. Ct. App. 2005); Bishop v. Miss. Transp. Comm 'n, 734 So.2d 218,222 (Miss. Ct. App.1999). Tunica County v. Matthews, 926 So.2d 209,215 (Miss. 2006)(emphasis added). The Court below granted the Motion for Directed Verdict on the basis of unrebutted opinion testimony, when the jury was seated as the finder of fact. In this case the jury even went to the site and examined the property themselves, acquiring first hand factual knowledge of the premises. This personal knowledge and investigation was entirely ignored by the Trial Court when the Motion for Directed Verdict was granted. Expert opinions are only advisory, but the Court below treated this testimony as fact. The only facts in the record are the knowledge gained by the jury members as they viewed the premises and the jury should have had the fact of the 17

prior MTC valuation and admission of value, also a fact. The opinion of the MTC appraiser was just opinion, and not fact at all. The jury had factual knowledge of the premises and the unrebutted expert testimony of the MTC appraiser. The jury should have had the fact of the sum ofthe "quick take" deposit. The only reason the MTC expert appraisal testimony was unrebutted was because the Trial Court did not allow Coleman to pursue the line of questioning described above. But even unrebutted, the jury was free to accept or reject this expert opinion testimony. The grant ofthe Directed Verdict took that choice away and was improper. 4. The Trial Court erred in granting the Motion for a Directed Verdict The trial court should have allowed Coleman to introduce the factual proof regarding the "quick take" deposit made by MTC. The trial court should have allowed Coleman to cross examine MTC's appraiser about the "quick take" deposit and the valuation behind that deposit. Even without this evidence, the grant of the Motion for a Directed Verdict was improper as the basis for it was the unrebutted expert testimony ofmtc's expert appraiser. That testimony was only advisory and non binding on the jury. The fact ofthe $380,300.00 "quick take" deposit is very important. It is not an opinion, it is a fact and a statement against interest. That fact, when coupled with rudimentary mathematics, leads to some very interesting figures, demonstrating the relevance of that fact. $380,300.00 divided by 18.61 acres, the total acreage of the take, is $20,435.25. This per acre value is just 2% higher per acre than Coleman Statement of Value but it is one-third higher than the MTC Statement of Value. This is a fact, and would have mandated the denial of the motion for directed verdict. $380,300.00 divided by.85 amounts to $447,41l.76. On remand 18

the MTC should answer whether or not it has a valuation in this sum or any other valuation other than what their appraiser testified to at trial. MTC can vary the proof it presents at trial from its course of dealing with the landowner, but they cannot pretend that the course of dealing never happened. They are not free to play fast and loose with Coleman by asserting a later lower valuation while hiding a prior higher valuation. CONCLUSION The only incontrovertible truth available regarding value is that the government deposited $380,300.00. MTC's expert appraiser was just providing opinion testimony and that testimony was merely advisory. The deposit of the $380,300.00 is a fact and a statement against interest, but the jury was not given that fact. If the truth regarding that $380,300.00 deposit had been presented to the jury, and, according to Morley and 320.. 0 acres of land it should have been, and if Defendant had been afforded the opportunity to cross examine MTC' s appraiser regarding that deposit, and she should have been, then she would have had a factual basis with which to oppose the MTC valuation and the case would not have been proper for a directed verdict as this fact supports a possible valuation of $447,411.76. The Court based the grant of a directed verdict on the unrebutted testimony of the MTC appraiser. That unrebutted testimony was just advisory to the jury, it was not conclusive. The jury had its own examination of the premises, and should have had the evidence of the "quick take" deposit. The grant of the Motion for Directed verdict was improper. This matter should be remanded with instructions that Coleman should be able to inquire into the basis of the "quick 19

take" deposit of the $380,300.00 and Coleman should be allowed to cross examine the MTC appraiser regarding any other MTC valuation of the premises. RespectfuUy submitted this the J~~ of ~ 2014. BY~~ MI ~. WATTS,MSB#7002 BRADLEY T. GOLMON, MSB #10261 Attorneys of Record for Appellant Of Counsel: HOLCOMB, DUNBAR, WATTS, BEST, MASTERS & GOLMON, P.A. 400 South Lamar Boulevard, Suite A Post Office Drawer 707 Oxford, Mississippi 38655 Telephone: (662)234-8775 Facsimile: (662)238-7552 20

CERTIFICATE OF FILING AND SERVICE I, Bradley T. Golmon of HOLCOMB, DUNBAR, WATTS, BEST, MASTERS & GOLMON, P.A., attorney of record for the Appellant, Lavon W. Coleman, certify that I have this day filed via MEC filing system and forwarded via Federal Express, Overnight Delivery, the original and four (4) copies, along with one (1) copy contained on electronic media, of the foregoing Brief of Appellant to the Clerk of the Mississippi Supreme Court, and one (1) true and correct copy of the same to the following individuals via United States Postal Service, First Class Mail: Hon. Judge Allen B. Couch, Jr. Special Court of Eminent Domain, DeSoto County, MS 2535 Hwy. 51 South Hernando, MS 38671 Richard G. Noble Crosthwait, Terney & Noble, PLLC Post Office Box 29 Indianola, Mississippi 38751 Attorney for Plaintiff/Appellee This the /~~ fmay, 2014. 21