Davidson, et al. v. Tarpon Whitetail Gas Storage, LLC


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Docket Number: 2010-CA-01655-COA

Court of Appeals: Opinion Link
Opinion Date: 06-19-2012
Opinion Author: Irving, P.J.
Holding: Affirmed

Additional Case Information: Topic: Eminent domain - Quick take statute - Section 11-27-81 - Expert testimony - Before and after rule - Statement of values - Section 11-27-7 - Amendment of pleadings - Continuance - Inspection of property - Section 11-27-19
Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Carlton, Maxwell, Russell and Fair, JJ.
Procedural History: Bench Trial
Nature of the Case: CIVIL - EMINENT DOMAIN

Trial Court: Date of Trial Judgment: 09-29-2010
Appealed from: Monroe County Special Court of Eminent Domain
Judge: Jim S. Pounds
Disposition: $13,000 AWARDED TO APPELLANTS
Case Number: CV-2009-308-P-M

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Edna Blanchard Davidson, Mary Alice Blanchard, Michael Blanchard, Elizabeth Blanchard, Ferdinand Blanchard, Earnest Blanchard, Jessie Blanchard, Mary A. Blanchard Evans, Sherry Blanchard, Billy Blanchard, Bryant Elbert Blanchard, Dorothy Jean Blanchard, Walter Blanchard, III, Catherine Heard, Narhan E. Bafford, Jessica Carouthers Clifton, Tina Blanchard, Gracie Harrell Polk, Richie Lee Cunningham, Jessica Cunningham, Ezell Brandon, Leon Brandon, Willie Charles Brandon, Yvonne Mitchell Blanchard, Shirley Moore Gadson and Mary Blanchard




JAMES JEFFREY LEE BRADLEY J. BLALOCK



 
  • Appellant #1 Brief

  • Appellee: Tarpon Whitetail Gas Storage, LLC J. JEFFREY TROTTER MICHELE MCCAIN  

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    Topic: Eminent domain - Quick take statute - Section 11-27-81 - Expert testimony - Before and after rule - Statement of values - Section 11-27-7 - Amendment of pleadings - Continuance - Inspection of property - Section 11-27-19

    Summary of the Facts: Tarpon Whitetail Gas Storage, LLC filed a complaint to acquire by eminent domain an easement to store natural gas in a depleted gas reservoir 3,400 feet below ground. The Blanchards each own a fractional interest in a twenty-five-acre tract of land above the reservoir. A jury awarded the Blanchards $13,000 as just compensation for the partial taking of the easement. The Blanchards appeal.

    Summary of Opinion Analysis: Issue 1: Quick take statute The Blanchards argue that the trial court failed to comply with the procedural safeguards set forth in section 11-27-81, Mississippi’s quick-take statute. However, as Tarpon points out in its brief, it did not proceed under the quick-take statute, nor is it an entity eligible to do so. Only particular government entities are eligible to proceed under the quick-take statute. Issue 2: Expert testimony The Blanchards argue that the trial court erred in allowing Tarpon’s statement of values and the testimony of its real-estate appraiser, because the expert erroneously relied on Ohio case law in determining fair market value. The Mississippi Supreme Court has yet to address acceptable methods for determining the fair market value of underground gas-storage rights. For this reason, the expert in this case considered the valuation methodologies announced in an Ohio Supreme Court case involving condemnation of gas-storage rights. While the Blanchards take exception to the expert’s reliance on Ohio law in determining fair market value, the valuation method selected mirrors the income-capitalization approach previously recognized by our Supreme Court as an appropriate method for valuing real property. As such, this issue is without merit. The Blanchards also argue that the expert erred in departing from the before-and-after rule in determining just compensation. Under the before-and-after rule, when a portion of a larger tract of land is taken for public use, the owner is entitled to be awarded the difference between the fair market value of the entire tract immediately before the taking and the fair market value of the remaining tract immediately after the taking. However, there are exceptions to the rule, which may apply in specific situations. In this case, the expert testified that Tarpon’s taking of the subsurface would not damage the surface of the Blanchards’ tract. Therefore, application of the before-and-after rule would have had no impact on his calculation of just compensation. Issue 3: Statement of values The Blanchards argue that the trial court erred in refusing to admit their statement of values or allow them to testify regarding the value of their property. The Blanchards filed their statement of values three days before trial. The trial court excluded the statement because it was untimely under section 11-27-7, which requires defendants to an eminent-domain proceeding to file a statement of values no less than ten days prior to trial. The Blanchards had notice and ample time to comply with the statutory deadlines, and they have provided no reason for their failure to comply other than their attorney’s health issues. The trial court attempted to accommodate the Blanchards, given their attorney’s failing health, by rescheduling the trial. This necessarily gave the Blanchards additional time to prepare and file a statement of values. Therefore, the court did not err in excluding the Blanchards’ statement of values. The Blanchards also argue that as the owners of the twenty-five-acre tract, they should have been able to offer lay testimony regarding the land’s value. To give an opinion of the fair market value of his property, the landowner must be familiar with the land and cognizant of land values of comparable property as to quality, use, and location. The Blanchards would have had to show knowledge of the value of gas-storage rights in a depleted reservoir. Even if the Blanchards had such knowledge, they failed to disclose the nature of their testimony during discovery. Issue 4: Amendment of pleadings The Blanchards argue that the trial court erred in allowing Tarpon to proceed with condemnation rights at trial that differed from the rights contained in the pleadings. The Blanchards were not prejudiced by the trial court’s decision to allow Tarpon to amend its pleadings and condemn a lesser interest in the Blanchards’ property. Furthermore, it was their attorney who initially asked that the pleadings be amended to conform with testimony. Issue 5: Continuance The Blanchards argue that the trial court erred in denying their motion for a continuance. The Blanchards’ attorney filed a motion to continue the trial, requesting a 120-day extension to complete discovery and prepare for trial. The trial court granted the motion and rescheduled the trial. Despite obtaining a continuance, the Blanchards failed to provide Tarpon with responses to the outstanding discovery requests or comply with the deadlines in the scheduling order. In fact, the Blanchards’ only response following the first continuance was to file a second motion for a continuance four days before the rescheduled trial date. Based on these facts, the trial court did not abuse its discretion in denying the Blanchards’ second motion for a continuance. Issue 6: Inspection of property The Blanchards argue that the trial court erred in denying their request for an inspection of the premises. Section 11-27-19 permits jury views of property in an eminent-domain proceeding. However, whether to allow a jury view is a matter left to the sound discretion of the judge. Viewing the premises would not have aided the jury in this case. Tarpon sought to condemn an easement in a depleted gas reservoir located 3,400 feet below the Blanchards’ property. Furthermore, Tarpon stipulated that it would not take or use the surface of the Blanchards’ property. Therefore, the circuit court did not err in refusing a jury view of the property.


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