City of Lafayette v. Mark and Ruby Hammock

CITY OF LAFAYETTE, ) ) Appeal No. Plaintiff-A ppellant, ) 01A01-9901-CV-00056 ) v.

MARK & RUBY HAMMOCK, ) ) Maco n Circuit ) FILED ) June 2, 1999 Defendants-Appellees. ) ) Cecil Crowson, Jr. Appellate Court Clerk

COURT OF APPEALS OF TENNESSEE MIDDLE SECTION AT NASHVILLE

APPEALED FROM THE CIRCUIT COURT OF MACON C OUNTY AT LAFAYETTE, TENNESSEE

THE HONORABLE BOBBY CAPERS, JUDGE

LISA COTHRON STINNETT 100 E. Locust street Lafayette, TN 37083 Attorney for Plaintiff-Appellant

WILLIAM JOSEPH BUTLER and E. GUY HOLLIMAN FARRAR & HOLLIMAN 102 Scottsville Highway P.O. Box 280 Lafayette, TN 37083 Attorney for Defendants-Appellees

AFFIRMED AND REMANDED

HERSCHEL P. FRANKS, JUDGE

CONCUR: GODD ARD, P.J. CAIN, J.

O P I N IO N

In its eminent domain proceeding, the City of Lafayette (City) took a small strip of Mark and Ruby Hammock’s land along the City’s right-of-way for an existing s treet.

The Trial Court awarded damages of $1,500.00 for the land taken, and incidental damages to the remainder in the amount of $11,000.00.

The City has raised the fo llowing issu es on app eal:

1. Whether the Court abused is discretion by interfering with the presentation of the City’s case?

2. Whether excessive weight was given to the testimony of an unlicensed real estate broker?

3. Whether the Court erred by admitting as an expert on land valuation, a real estate broker who was not licensed as an appraiser, and who did not follow accepted appraisal techniques in arriving at this opinion of value?

4. Whether there w as any credible material evidence to s upport the Court’s ruling as damage value.

Essentially, the City argues that the Trial Judge, by questioning witnesses “interfered” w ith the presentation of its case. Our rev iew of the record does establish that the Trial Judge was proactive in questioning witnesses.

Tenness ee Rules o f Eviden ce, Rule 61 4(b), perm its the Judge to interrogate witnesses, and it does not appear that the Judge’s questioning prevented counsel fr om askin g any question s of the w itnesses, nor w as any objectio n made to the procedures. Judges have broad discretion in conducting trials. However, the better practice is to permit counsel to present his or her evidence without interruption, and if the Court then feels further information should be developed, *3 the Judge then can further interrogate the witness.

Since the City was not denied the right to offer evidence or question its witnesses, w e find this issu e to be with out merit.

The Ha mmock s called J.T. S hrum as a n expert w itness, and the City asserts that it was error for the Court to allow Shrum to testify as an expert, and further that “exce ssive we ight” wa s giv en to his te stimony.

The weight to be given to testimony is essentially for the trier of fact to determ ine. See Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996) .

The witness testified that he had fifteen years experience as a real estate broker1 in Macon County, had personally bought and sold real estate in that county for several years, and that he had long been familiar with the particular piece of p roperty own ed by the Ha mmock s. He also sta ted that he h ad previou sly testified and been accepted as an expert witness on land valuations by numerous courts, including that trial court and other trial courts in the district, as well as the Federal District Court. The Trial Judge properly permitted this witness to offer opinio ns on v alue on the issue s befo re the C ourt.

The City relies o n Tenne ssee Cod e Anno tated §62-3 9-103, as a basis to disqualify Sh rum from testifying becau se he doe s not hold a real estate appraiser’s lice nse. We c annot agre e. T.C.A. § 62-39-33 5 allows a real estate broker to offer an opinion of value in the courts of this State.

As to the final issue, the amount of just compensation is a question of fac t for the trier of f act to de termine . Schook & Fletcher Supply Co. v. City of

1 There is nothing in the record to indicate that the witness was “an unlicensed real estate broker”.

Nashville , 47 Tenn. App . 339, 338 S.W.2d 237, 238-243 (1 960).

We conclude the evidence does not preponderate against the awards of dam ages, T .R.A.P . Rule 1 3(d).

The property owner testified that the fair market value of the property actually taken was $2,000.00 and the City’s appraiser testified that the value was $550.00. The owners testified that the remainder of their property was damage d betwee n $20,00 0.00 and $ 30,000.00 and their ex pert Shrum offered h is opinion that the remainder of their property had diminished in value of $19,500.00, which amount did include the property actually taken. The City’s appraiser was of the opinion there were no incidental damages, although plaintiff offered proof of severe flooding and erosion, due to the City’s project, and reduced access to the remain der of th eir prop erty.

Hammock testified that after the City finished the project, there had been sev ere erosion , and since th e comple tion of the p roject, water h ad floode d his driveway and accumulated near the rental house on the property on several occasions . He testified th at prior to the tak ing he had two sepa rate drivew ays to his property, one to his home and the other to the rental house. The project had restricted access to the property, i.e., one shared driveway and the City’s erection of a guard rail had essentially eliminated any road frontage on the undeveloped portion of his property, which could have been used as a building lot. We note that Shrum, in arriving at his opinion of value, took into account the flooding testified to by the owner, and he was further of the opinion that the lack of access to the vacant lot rendered it no more than a “garden spot” in his calculation of values.

We affirm the awards of damages made by the Trial Court and remand w ith costs of the appeal asse ssed to the a ppellant.

________________________ Herschel P. Franks, J.

CONCUR:

___________________________ Houston M. Godd ard, P.J.

___________________________ William B. Cain, J.