THE STATE OF MISSISSIPPI, BY AND THROUGH DELBERT HOSEMANN, IN HIS OFFICIAL CAPACITY AS SECRETARY OF STATE AND TRUSTEE OF THE PUBLIC TIDELANDS TRUST v. KENNETH F. MURPHY, RAY J. MURPHY AND AUDIE R. MURPHY
NO. 2015-CA-00598-SCT
IN THE SUPREME COURT OF MISSISSIPPI
10/27/2016
DATE OF JUDGMENT: 03/19/2015
TRIAL JUDGE: HON. LISA P. DODSON
TRIAL COURT ATTORNEYS: PAUL R. SCOTT, HUGH D. KEATING, MELISSA WINFIELD, DONALD J. RAFFERTY, JE‘NELL B. BLUM
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: HUGH D. KEATING, JE‘NELL B. BLUM, JONATHAN P. DYAL, K.C. HIGHTOWER, OFFICE OF THE ATTORNEY GENERAL BY: LEE DAVIS THAMES, JR.
ATTORNEYS FOR APPELLEES: PAUL R. SCOTT, ROBERT E. QUIMBY
NATURE OF THE CASE: CIVIL - REAL PROPERTY
DISPOSITION: AFFIRMED - 10/27/2016
WALLER, CHIEF JUSTICE, FOR THE COURT:
FACTS & PROCEDURAL HISTORY
¶2. This litigation arises from a dispute between brothers Ray, Audie, and Ken Murphy (“the Murphys“), and the State of Mississippi1 and City of Bay St. Louis over the ownership of beachfront property located within the City. The property is comprised of two adjoining parcels situated on parts of Lots 2 and 4 in the Second Ward of the City of Bay St. Louis, Hancock County, Mississippi.2 The property is bounded to the west by Beach Boulevard (formerly Front Street) and to the east by the Bay of St. Louis, generally speaking. The exact eastern boundary of the property is the subject of the litigation.
Legal Description and History of the Property
¶3. The record in this case contains deeds dating back to 1905 for Lot 4 and 1924 for Lot 2. The 1905 deed to Lot 4 describes the relevant boundaries of the property as follows:
Beginning at an iron rod at a point [illegible] of the North boundary line of the [illegible] on a course South 70° East intersecting the East line of Front Street, thence South 70° East eighty one and five tenths feet more or less to an iron rod at average high water tide on the Western bank of the Bay of St. Louis;
thence South 29° 25’ West sixty four and seven tenths feet (64.7 ft.) to an iron rod; thence North 70° West eighty-one and five tenths feet (81.5 ft.) more or less to a stake on the Eastern line of Front Street, thence North 29° 25’ East along the Eastern Line of said Front Street sixty four and seven tenths feet (64.7 ft.) to the place of beginning.
The 1924 deed to Lot 2 contains a similar description of the relevant boundaries:
Having a frontage on the eastern line of Front Street of sixty four and forty two hundredths (64.42) feet, more or less and extending back thence between parallel lines, running on a course south seventy (70) degrees east, a distance of eighty one and five-tenths (81.5) feet, more or less, to the water‘s edge of the Bay of St. Louis[.]
Between 1915 and 1917, a concrete seawall (“the Old Seawall“) was built along oceanfront property in Bay St. Louis, including Lots 2 and 4. The Old Seawall is depicted in the first (and only) official plat of the City of Bay St. Louis, which was completed by E.S. Drake in November 1922 (“the Drake Plat“). On the Drake Plat, the property lines for Lots 2 and 4 extend beyond the Old Seawall.3
¶4. The legal descriptions of Lots 2 and 4 have changed over time. In 1932, A.A. Kergosien conveyed Lot 2 to his wife by warranty deed and altered the legal description of the property so that the north and south boundary lines ran “81.5 feet, more or less, or to the water‘s edge,” rather than “81.5 feet, more or less, to the water‘s edge[.]” This change appears in later deeds conveying Lot 2. In addition, deeds to Lot 4 began incorporating the
The Murphy family acquires the property.
¶5. The Murphy family acquired the property in question through three separate transactions. First, in 1983, the Murphys’ mother and stepfather each acquired an undivided one-half interest in the southern 35.7 feet of Lot 4. In 1989, Ray, Audie, and three other family members acquired Lot 2. Finally, in 1994, Audie Murphy acquired the remaining northern portion of Lot 4 via warranty deed. In 1999, Ray acquired sole ownership of Lot 2 from the other owners via quitclaim deed. Property tax maps admitted at trial reveal that Hancock County taxed the Murphys for property extending well beyond the Old Seawall.
¶6. The Murphy family used the property in question to run a beachfront restaurant called Dan B‘s, or Daniel‘s South Beach Restaurant & Bar (“the Restaurant“). The Murphys bought the Restaurant from their parents in 2004. A set of stairs was built over the Old Seawall to give the Restaurant‘s customers easier access to the beach, and the Murphys eventually constructed a sixty-foot deck onto the back of the Restaurant that extended beyond the Old Seawall and onto the beach. The Restaurant was destroyed by Hurricane Katrina in 2005, and the Murphys never rebuilt it.
The Clarke Survey
¶8. In 2001, Ray executed a “Specific Power of Attorney” appointing his son Darrell Murphy “my true and lawful agent and attorney-in-fact” and authorizing him to “contract for the sale of, sell, convey and warrant upon such terms and conditions and under such covenants as he shall think fit,” Lots 2 and 4. Acting under this authority, Darrell ordered a survey of Lots 2 and 4, which was conducted by James Clarke. According to the testimony at trial, the Clarke Survey is the only survey that was conducted on the property prior to the commencement of the instant litigation. The Clarke Survey significantly changed the legal descriptions of Lots 2 and 4, apparently to account for the accretion of almost two hundred feet of fastlands east of the Old Seawall. The Clarke Survey provides the following legal description for the property:
Part of Lot 2, Second Ward, City of Bay St. Louis, Ms., as per Drake‘s Plat of May 1, 1923 and more particularly described as: beginning at the intersection of the extension of the south margin of Main St. and the east margin of Front St.; thence S 34° 03’ 16” W along said east margin 1.73 ft. to the point of
beginning; thence S 70° 00’ 18” E 77.80 ft. to the concrete seawall; thence continue S 70° 00’ 18” E 191.72 ft., more or less, to the mean high water line of the Bay of St. Louis; thence S 37° 44’ 58” W along the meandering of said mean high water line of the Bay of St. Louis 48.74 ft., more or less; thence N 69° 35’ 16” W 181.24 ft., more or less, to the concrete seawall; thence continue N 69° 35’ 16” W 85.04 ft. to the east margin of Front St.; thence N 34° 37’ 38” E along said east margin 45.97 ft. to the point of beginning. Part of Lots 2 & 4, Second Ward, City of Bay St. Louis, Ms., as per Drake‘s Plat of May 1, 1923 and more particularly described: commencing at the intersection of the extension of the south margin of Main St. and the east margin of Front St.; thence S 34° 03’ 16” W along said east margin 1.73 ft.; thence continue along said east margin S 34° 37’ 38” W 46.97 ft. to the point of beginning; thence S 69° 35’ 16” E 181.23 ft., more or less, to the mean high water line of the Bay of St. Louis; thence S 37° 44’ 57” W along the meandering of said mean high water line 47.84 ft., more or less; thence N 69° 28’ 20” W 171.09 ft. to the concrete seawall; thence continue N 69° 28’ 20” W 90.58 ft. to the east margin of Front St.; thence N 31° 09’ 35” E along said east margin 28.74 ft.; thence continue N 34° 37’ 38” E along said east margin 17.24 ft. to the point of beginning.
The Clarke survey was incorporated by reference in all subsequent deeds among the Murphys.
The Murphys’ Attempts to Lease Property Beyond the Old Seawall
¶9. The record reveals that, on two separate occasions, the Murphys attempted to lease property beyond the Old Seawall from the Secretary of State. First, in 1996, the Murphys filed an application to lease property beyond the Old Seawall for the purpose of building a hotel development on the water. However, after a negative feasibility study, the Murphys ultimately abandoned this project. Margaret Bretz, an attorney in the Public Lands division of the Secretary of State‘s Office, wrote a letter in response to the Murphys’ application noting that the State “would not have been able to offer a lease of the adjacent tidelands for the hotel site.” At trial, Ken explained that they had intended to build a pier from the hotel
¶10. In 2009, the Murphys filed a second application to lease property east of the Old Seawall for the purpose of rebuilding the deck that had been attached to the Restaurant. The Murphys’ application indicated that the deck would “be used in conjunction with the operation of our restaurant.” Notably, the survey attached to the Murphys’ application indicates that the deck was to be built on property either currently or previously owned by the Murphys. The record does not reveal what become of this application.
The Alleged Taking
¶11. As stated previously, the Murphys did not rebuild the Restaurant after it was destroyed by Hurricane Katrina. Beginning in 2009, the United States Army Corps of Engineers constructed a new seawall (“the New Seawall“) in Bay St. Louis east of the Old Seawall, which also had been destroyed by Hurricane Katrina. The New Seawall did not block the Murphys’ access to or view of the beach. Then, on April 6, 2011, the State executed a rent-exempt Public Trust Tidelands lease to the City for approximately forty-four acres of property east/seaward of the Old Seawall for the purpose of building a municipal harbor. The portion of the Murphys’ property that allegedly extends east of the Old Seawall was included in the property leased to the City. The lease names the State as the owner and lessor of the property. On January 3, 2012, the City began construction of the harbor.
The Instant Litigation
¶13. The case was tried before a jury in August 2014. At the conclusion of the trial, the jury returned a verdict finding the State liable for taking and damaging the Murphys’ property and awarding the Murphys $644,000 in damages. The jury found the City not liable for the Murphys’ damages. Following resolution of post-trial motions, the trial court awarded the Murphys $214,666.66 in attorneys’ fees, $48,676.32 in expenses, and interest on the judgment at eight percent per annum from the date of the filing of the complaint.
¶14. The State now appeals to this Court, raising the following issues:
Whether the Murphys’ claims fail as a matter of law because all property east of the Old Seawall is public trust tidelands. - Whether the Murphys’ claims are time-barred.
- Whether the trial court erred in admitting expert testimony on damages that deviated from the “before and after rule.”
- Whether the jury‘s award against the State was against the overwhelming weight of the evidence or was the result of bias, prejudice, and passion, requiring either a new trial or a remittitur.
- Whether the trial court erred in awarding attorneys’ fees, expenses, and interest against the State.
Additional facts will be provided in the Discussion section as they become relevant.
DISCUSSION
I. Whether the Murphys’ claims fail as a matter of law because all property east of the Old Seawall is public trust tidelands.
¶15. The
The specific property must be established in the record and the tidelands boundary related to that specific property must be established. That has not been done. There is nothing in this record that would indicate where the State maintains that the tidelands boundary is as that boundary affects, abuts or relates to the subject property. Regardless of which tidelands boundary is accepted (i.e. toe of the seawall or mean high tide), it is not possible on this record to say whether the subject property is wholly within the area designated as tidelands, wholly outside of tidelands boundaries, or partially within tidelands boundaries and partially outside of tidelands boundaries.
Because genuine issues of fact still existed regarding the boundaries of the Murphys’ property and of the public trust tidelands adjacent to the property, the trial court found that summary judgment was inappropriate. The State repeated this same argument in its post-trial motion for judgment notwithstanding the verdict (JNOV), which the trial court also denied. On appeal, the State argues that it was entitled to judgment as a matter of law because it owns the property east of the Old Seawall.
¶16. We view this argument from the perspective of the trial court‘s denial of the State‘s motion for JNOV, as that was the last occasion on which the trial court considered the argument. The standard of review for the denial of a motion for JNOV is de novo. Mine Safety Co. v. Holmes, 171 So. 3d 442, 446 (Miss. 2015). “[J]udgments as a matter of law present both the trial court and the appellate court with the same question – whether the
¶17. The State‘s claim that it owns all land east of the Old Seawall is based generally on the public trust doctrine, which provides that the State is the “absolute owner of the beds of its shores of the sea, wherever the tide ebbs and flows, as trustee for the people.” Hosemann v. Harris, 163 So. 3d 263, 269 (Miss. 2015). “[W]hen Mississippi entered the Union in 1817, title to the tidelands and navigable waters which had been held by the United States prior to statehood was conveyed to Mississippi in trust and became immediately vested, subject to the trust.” Sec‘y of State v. Wiesenberg, 633 So. 2d 983, 987 (Miss. 1994) (citations omitted). Tidelands are defined as “those lands which are daily covered and uncovered by water by the action of the tides, up to the mean line of the ordinary high tides.”
¶19. Margaret Bretz, an attorney in the Public Land Division of the Secretary of State‘s office, testified that she personally visited the coastal areas that were subject to the Final Map and that her division was in charge of notifying landowners whose property was in violation of the Final Map. She explained that the Murphys were not considered “violators” of the Final Map because they did not have any structures encroaching over the Old Seawall at that time the map was being drafted. Bretz also maintained that the Secretary of State used the Old Seawall as the public tidelands boundary in Bay St. Louis, and that the Murphys received general notice of this fact through the publication of the Final Map. As evidence of this notice, the State presented evidence that Ken Murphy had submitted a comment form on the Final Map stating that he wanted the public tidelands boundary to remain at the mean high water line, and that changing the boundary would interfere with his family‘s business.
¶21. The State‘s argument is not supported by the Final Map or the Public Trust Tidelands Act. The eastern boundary of the Murphys’ property is marked by a solid line on the Final Map, indicating that the public trust tidelands boundary adjacent to their property is either (1) the mean high water line, or (2) the toe of the Old Seawall. The Final Map‘s legend clearly states that the public trust tidelands boundary is the toe of the seawall only “in areas where beach renourishment has occurred.” The term “beach renourishment” can refer only to artificial renourishment, because the Tidelands Act specifically recognizes that “the gradual and imperceptible accumulation of land by natural causes . . . diminish[es] the land subject to the public trust and increase[es] the property owned by the contiguous upland owner.”
¶22. In addition, the Final Map appears to support the Murphys’ position that the public tidelands boundary adjacent to their property is not the Old Seawall. Ken Murphy took an aerial photograph of the general area encompassing the property in question in 1994, the same year that the Final Map was published. This photograph was admitted into evidence. The photograph was shot from a point south of the Bay St. Louis Rail Bridge, which is south of the property in question, and shows that the Old Seawall runs essentially in a straight line from the Rail Bridge to a point well north of the Murphys’ property. In contrast, the boundary line depicted on the Final Map is not straight at all, but appears to bulge into a sort of peninsula directly north of the Rail Bridge that roughly matches the area depicted in Ken‘s photograph. For these reasons, we find that the trial court did not err in denying the State‘s motion for summary judgment and allowing the case to go to trial. Moreover, the trial court did not err in denying the State‘s motion for JNOV, as the evidence was not so deficient as to remove the need for a trier of fact. At the very least, a factual dispute existed as to the relevant public trust tidelands boundary, and that dispute was resolved by the jury in the Murphys’ favor.
¶24. We decline to take judicial notice of the Guidelines for the Preliminary Map. The State did not present the Guidelines to the trial court, nor did it provide a copy of the Guidelines for this Court to review; rather, the State simply quoted a single sentence from the Guidelines in its appellate brief. “This Court cannot consider evidence that is not in the record.” Pratt v. Sessums, 989 So. 2d 308, 309-10 (Miss. 2008) (citing Shelton v. Kindred, 279 So. 2d 642, 644 (Miss. 1973)). But even if this Court did take judicial notice of the Guidelines, they appear to apply only to the Preliminary Map, which was drafted four years prior to the completion of the Final Map and was presented for inspection and revision prior to the drafting of the Final Map.
¶26. For all these reasons, we find that the State was not entitled to judgment as a matter of law on the basis that the public trust tidelands boundary adjacent to the Murphys’ property was the Old Seawall.
¶27. As an alternative argument to the above issue, the State asserts that the Murphys are time-barred from bringing an action for inverse condemnation because they failed to challenge the public trust tidelands boundaries established by the Final Map within three years after the map‘s publication. Statutes of limitation issues present questions of law, which this Court reviews de novo. Koestler v. Miss. Baptist Health Sys., Inc., 45 So. 3d 280, 282 (Miss. 2010).
¶28. The State argues that, because the Murphys’ property was not in violation of the Final Map5 at the time it was published, the instant case is governed by the “catch-all” statute of limitations set forth in Section 15-1-49. That statute provides, “All actions for which no other period of limitation is prescribed shall be commenced within three (3) years next after the cause of such action accrued, and not after.”
¶29. The State‘s argument is without merit. “A cause of action accrues only when it comes into existence as an enforceable action; that is, when the right to sue becomes vested.” Estate of Kidd v. Kidd, 435 So. 2d 632, 635 (Miss. 1983) (citations omitted). The Murphys’ cause of action did not accrue when the Final Map was published, as the State suggests,
III. Whether the trial court erred in admitting expert testimony on damages that deviated from the “before and after rule.”
¶30. Finding that the State is not entitled to judgment as a matter of law, we now address the State‘s alternative arguments. First, the State asserts that the trial court erred in failing to exclude inadmissible testimony by Robert Crook, the Murphys’ expert witness on the subject of real estate appraisal.
¶31. On direct examination, Crook testified that he calculated the Murphys’ damages using the “before and after rule,” which has been defined by this Court as follows:
When part of a larger tract of land is taken for public use, the owner should be awarded the difference between the fair market value of the whole tract immediately before the taking, and the fair market value of that remaining immediately after the taking, without considering general benefits or injuries resulting from the use to which the land taken is to be put, that are shared by the general public.
Miss. State Highway Comm‘n v. Hillman, 198 So. 565, 569 (Miss. 1940) (citations omitted). After conducting an appraisal study, Crook determined that, prior to the taking, the Murphys owned 14,460 square feet of real property valued at $60 per square foot, for a total
I applied the same market conditions adjustment as I did in the before condition and then the after condition I adjusted the sales for location because the Murphy‘s property no longer is a beach property. It‘s an interior lot that has a bridge on the south side, a raised ramp bridge, concrete bridge, that curves and goes down to the parking lot that was built where the Murphy‘s property, beach property, was previously located. So if you were standing in the middle of the Murphy‘s property looking out towards the bay to the east you see a concrete bridge. If you look south down Beach Boulevard you see a concrete bridge above you. You see no beach. The beach is not there. And the comparable sales were adjusted for the fact that this is a much less desirable property in the after condition after the taking. There‘s not that much demand for a property with physical characteristics that the property has today or as of the date of taking.
Crook calculated just compensation for the taking to be $800,000, of which $661,560 represented actual compensatory damages for the taking of the property east of the Old Seawall. The remaining $138,440 represented consequential damages to the value of the remaining property.
¶32. On cross-examination, the State asked Crook if the Murphys held riparian and littoral rights to the property east of the Old Seawall. The following exchange then took place:
| Q. | So what rights do you – is it your opinion that the rights then that are east of the seawall, southeast of the seawall, relate to riparian – the right to exercise ripatiran and littoral rights? |
| A. | Partially, yes, sir. |
| Q. | And what value did you assign to the value of those or what dollar amount – let me ask it that way, did you assign to the riparian and littoral rights in your appraisal? |
| A. | Again that would be improper appraisal practice. I appraised the value as a whole property, no individual rights of the 14,460 square feet. |
| Q. | But you did, in your opinion, establishing $60 per square foot value in the before condition take into consideration value for riparian and littoral rights, did you not? |
| A. | I did take into consideration that it had access to the water, yes. |
| Q. | So that would be a yes? |
| A. | Yes. |
| Q. | Riparian and littoral rights? |
| A. | Yes. |
| Q. | In the after condition you have a different per square foot value. I believe you said $20 per square foot, and you assigns [sic] consequential damages if I understand you correctly of $138,000 and change? |
| A. | Yes, sir. |
| Q. | Let‘s be specific. $138,440, is that the consequential damages, is that related to the taking of the riparian and littoral rights? |
| A. | Partially. |
| Q. | Can you tell me how much of that $138,400 was related to the taking of riparian and littoral rights? |
| A. | No, I cannot. |
| Q. | Can you give me some type of idea? I mean, are you just saying it‘s all lumped in there, in the $138,440? |
| A. | That‘s correct. |
A. No I cannot.
Q. But it is a part and component of your estimate of damages, consequential damages to the remainder, correct?
A. Yes, sir.
On redirect examination, Crook clarified his prior statements concerning riparian and littoral rights:
Q. You were asked questions about littoral and riparian rights to the water. In your understanding, and if you don‘t know as an appraiser maybe it‘s a legal question, but your understanding is ownership rights and are those rights the same thing?
A. Yes, sir.
Q. Fee simple ownership of property?
A. Yes, if it‘s on navigable.
Q. Mr. Crook, if this jury finds based upon the deeds, the records, the other testimony from experts that are title people that at the time this project was built, at the time that the city came on the property and took possession of the property and began building the harbor, if they find that the fee simple title was in the Murphy‘s [sic] and you‘ve value [sic] that property do you value the ownership of that property for the entire property or just a portion of the property?
A. You have to value it as the whole property and not just part.
Q. Is that what you did with the 14,000 plus square feet that you measured off that went from the right-of-way to the edge of the water?
A. 14,460 square feet, yes, sir.
¶34. On appeal, the State argues that Crook erroneously reduced the property‘s “after” value by an unspecified amount for loss of littoral rights, even though such loss is not compensable under Mississippi law. This Court has held that the application of the before-and-after rule and whether the trial court erred in allowing a departure from the rule are questions of law subject to de novo review. Miss. Transp. Comm‘n v. Fires, 693 So. 2d 917, 920 (Miss. 1997).
¶35. “The ‘before-and-after rule’ swallows and absorbs all damages of every kind and character.” Miss. State Highway Comm‘n v. Hall, 174 So. 2d 488, 492 (Miss. 1965). “[W]e have consistently enforced this conclusive presumption in after-the-fact inverse condemnation actions.” King v. Miss. State Highway Comm‘n, 609 So. 2d 1251, 1253 (Miss. 1992). “Aesthetics enter into an eminent domain proceeding only insofar as they affect the fair market value of the property . . . .” Miss. State Highway Comm‘n v. Viverette, 529 So. 2d 896, 900 (Miss. 1988). In addition, “[t]his Court has held that [littoral] rights are not property rights, per se; instead, they are mere licenses or privileges.” Gilich, 609 So. 2d at 375 (citing Catchot v. Zeigler, 92 Miss. 191, 45 So. 707 (1908)). “[W]here the State has exercised its power to impose an additional public use on property already set aside for public purpose, the injury to riparian or littoral licenses is not a taking of private property for which compensation must be made.” Id. (emphasis added).
¶36. After reviewing Crook‘s testimony in context, we find that Crook did not include noncompensable elements of damages in his calculations. The State‘s argument, that Crook improperly included the loss of littoral rights in his calculation of damages, is based on a mischaracterization of Crook‘s testimony. Crook did not even mention littoral or riparian rights during his direct examination. He simply explained the characteristics of the property that he considered in calculating fair market value before and after the taking, including the fact that the property no longer had access to or a view of the ocean after the taking. “[W]itnesses 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.” State Highway Comm‘n v. Havard, 508 So. 2d 1099, 1101-02 (Miss. 2014). In addition, to the extent that landowners “can show diminution in value from loss of view or access due to alteration of the use of that land, they are entitled to compensation.” Gilich, 609 So. 2d at 375. While the State was able to get Crooks to say the phrase “riparian and
¶37. Ultimately, though, it appears that any reference to littoral rights during Crook‘s testimony would be harmless error, if any. The trial court affirmatively instructed the jury that it could not consider the loss of littoral rights in calculating just compensation for the taking if it found that those rights were revoked for the greater public good. “Generally speaking, our law presumes that jurors follow the trial judge‘s instructions, as upon their oaths they are obliged to do.” Parker v. Jones Cty. Cmty. Hosp., 549 So. 2d 443, 446 (Miss. 1989). This presumption is supported by the jury‘s verdict. Crook testified on cross-examination the Murphys’ loss of “littoral rights” was included in his calculation of consequential damages, which totaled $138,440. The jury‘s award of damages was $644,000, which is $17,560 less than Crook‘s calculation of compensatory damages alone, and $156,000 less than Crook‘s total calculation when consequential damages are included. Thus, even if Crook did improperly include the loss of littoral rights in his calculations, it does not appear that the jury considered those rights in its ultimate determination of just compensation. See K.M. Leasing, Inc. v. Butler ex rel. Butler, 749 So. 2d 310, 324-25 (Miss. 1999) (finding that any error in allowing hedonic damages expert to testify was harmless, as the testimony was not indispensable to the jury‘s verdict, and there was sufficient other evidence on which the jury could have based its verdict).
¶38. In its post-trial motion for a new trial, the State raised several arguments supporting the reversal of the jury‘s verdict. First, the State argued that the Murphys’ claim of ownership to the property between the Old Seawall and the water‘s edge was not supported by the weight of the evidence. Second, the State argued that the trial court erred in allowing certain discovery responses by the City to be presented to the jury. Finally, the State argued that the jury‘s decision to hold it wholly liable for the Murphys’ damages was the result of bias, prejudice, or passion, because it did not build the New Seawall or the harbor. Alternatively, the State asked the trial court to order a remittitur of the jury‘s award of damages. The trial court rejected each of these arguments and upheld the jury‘s verdict as rendered. On appeal, the State reasserts each of the arguments presented in its motion for a new trial.
¶39. “A new trial may be granted in a number of circumstances, such as when the verdict is against the substantial or overwhelming weight of the evidence.” White v. Yellow Freight Sys., Inc., 905 So. 2d 506, 510 (Miss. 2004) (citing Shields v. Easterling, 676 So. 2d 293, 298 (Miss. 1996)). This Court reviews the denial of a motion for a new trial under the abuse-of-discretion standard. Steele v. Inn of Vicksburg, Inc., 697 So. 2d 373, 376 (Miss. 1997) (citations omitted). This Court must view the evidence in the light most favorable to the jury‘s verdict. Dependable Abrasives, Inc. v. Pierce, 156 So. 3d 891, 895 (Miss. 2015) (citations omitted). Additionally, because this Court affords great deference to jury
A. Whether the Murphys’ claim of ownership to the disputed property is supported by the weight of the evidence.
¶40. While the State bore the burden of proving that the property in dispute was public trust tidelands, it maintains that the Murphys bore an equal burden of proving that they actually owned all of the land in question, because they cannot claim compensation for that which they do not own. See Gilich, 609 So. 2d at 375 (citing State Highway Comm‘n v. McDonald‘s Corp., 509 So. 2d 856, (Miss. 1987)). The State argues that the overwhelming weight of the evidence does not support the Murphys’ claim of title to the property from the Old Seawall to the water‘s edge.
¶41. At trial, the Murphys presented the original deeds to Lots 2 and 4, which referenced the “mean high water tide” or “water‘s edge” as the eastern boundary of the property. The Murphys also admitted the Drake Plat, which reflects that the property boundaries for Lots 2 and 4 extended beyond the Old Seawall around 1922. The Murphys also argued that the Final Map published by the State in 1994 established the mean high water line as the eastern
¶42. The State argues that the Murphys’ “self-serving” deeds are insufficient to establish their claim that they owned any property east of the Old Seawall. At trial, the State called Robert Schwartz, a real estate lawyer, as an expert witness. Schwartz conducted a title search for Lots 2 and 4 and examined the records for the properties going back to 1905 (Lot 4) and 1924 (Lot 2). Schwartz testified that, prior to 2001, the legal descriptions of the properties were consistent and conveyed only property from Front Street to the Old Seawall. Based on his review of the chain of title, Schwartz opined that the State owned the land east of the Old Seawall. In addition, the State hired Robert Cassady to conduct a survey of the property.6 The Cassady survey confirms that the distance between Front Street and the Old Seawall on Lot 2 was 85.04 feet, and the distance on Lot 4 was 91.27 feet. These distances are longer than the call measurements for the north and south boundary lines in the original legal descriptions for Lots 2 and 4. Finally, the State presented evidence showing that the Murphys had attempted to lease property east of the Old Seawall from the Secretary of State
on two occassions. In 1996, the Murphys filed an application to lease property east of the Old
¶43. While the evidence is conflicting, we find that the weight of the evidence supports the jury‘s finding that the Murphys owned the property in question. The State focuses on the fact that the deeds to Lots 2 and 4 historically contained consistent boundary measurements reflecting the distance from Front Street to the Old Seawall, or a few feet west of the Old Seawall. But this argument overlooks the fact that these same deeds also reference the “mean high water tide of the western bank of the Bay of St. Louis” or “water‘s edge of the Bay of St. Louis” as the eastern boundary of the property in question. We also note that the oldest deed in the record for Lot 4 was executed in 1905, twelve years before the Old Seawall was completed. The State‘s expert witness admitted on cross-examination that every deed in the Murphys’ chain of title lists the Bay of St. Louis as the eastern boundary of the property. On the other hand, none of the deeds in the chain of title makes any reference to
B. Whether the State was prejudiced by the admission of the City‘s deemed discovery admissions.
¶44. During pretrial discovery, the Murphys propounded a series of requests for admission to the State and the City. Among other things, the Murphys sought an admission that the tidelands boundary depicted in the Final Map meanders along the mean high water line; that the Murphy property extends to the mean high water line; that the City and State took full possession of the Murphy property on January 3, 2012; that the City did not seek permission from upland owners for the development of the municipal harbor; and that public funds were being used for the construction of the harbor. The State timely responded to the Murphys’ requests; the City, however, did not. Accordingly, the trial court held that the Murphys’ requests for admission would be deemed admitted by the City.
¶45. At trial, the Murphys requested that the City‘s deemed admissions be presented to the jury. The State objected, arguing that it would be unduly prejudicial to present the City‘s admissions without also including the State‘s responses. The trial court agreed that the jury needed to be instructed that any admissions by the City did not bind the State. Thus, the trial court ordered the Murphys to draft the City‘s deemed admissions in a format precisely
¶46. On appeal, the State argues that the admission of the City‘s deemed admissions at trial resulted in extreme prejudice to its defense, causing the jury to find the State wholly liable for taking the Murphys’ property. We review the trial court‘s rulings on discovery matters for an abuse of discretion. Earwood v. Reeves, 798 So. 2d 508, 514 (Miss. 2001) (citing Dawkins v. Redd Pest Control Co., 607 So. 2d 1232, 1235 (Miss. 1992)). We find that the State‘s argument is without merit. Because the City failed to respond to the Murphys’ requests for admissions, the trial court clearly acted within its discretion to deem those requests admitted by the City. See
C. Whether the verdict was the result of the jury‘s bias, prejudice, or passion against the State.
¶47. The City took full possession of the Murphys’ property on January 3, 2012, and no evidence in the record suggests that the State played any part in the actual construction of the harbor. Nevertheless, at the conclusion of the trial, the jury returned a verdict finding the State wholly liable for taking and damaging the Murphys’ property. The jury found that the City was not liable, even though the City was forced to make several admissions due to its failure to respond to the Murphys’ discovery requests. The State argues that the jury‘s decision not to allocate any liability to the City was so contrary to the weight of the evidence as to exhibit prejudice or bias against the State.
¶48. We find that the State‘s argument is without merit. The State claimed true ownership of the property under the authority of the Tidelands Act, or alternatively, its sovereign power of eminent domain. As such, the State is listed as the lessor of the property in the Public Trust Tidelands lease to the City, and the lease states that “fee simple title to LEASE PREMISES is vested in LESSOR.” While the City is the entity that ultimately built the harbor, it could not have done so without the State‘s consent. Stated another way, there is no evidence in the record indicating that the City could have constructed the harbor without the State first exercising a claim of ownership over the property. Because the State‘s claim
D. Whether the State is entitled to a remittitur.
¶49. While not set out in a separate issue in its brief, the State asserts throughout this section of its brief that it is entitled to a remittitur. This argument is based on the Murphys’ testimony at trial that the construction of the New Seawall by the Army Corps of Engineers caused approximately ninety percent of the damage to their property.7 In reliance on this testimony, the State argues that the jury was limited to awarding the Murphys ten percent of whatever total damages were proven at trial. Because Crook testified that just compensation for the taking of the Murphys’ property would be $800,000, the State asserts that this Court should reduce the jury‘s award of damages to $80,000.
¶50. This Court has explained the standard for reviewing a claim for a remittitur as follows:
There are no fixed standards as to when an additur or remittitur is proper. Leach v. Leach, 597 So. 2d 1295, 1297 (Miss. 1992). Therefore, we proceed on a case-by-case basis in determining whether a jury award is excessive. Biloxi Elec. Co. v. Thorn, 264 So. 2d 404, 405 (Miss. 1972). We will not disturb a jury‘s award of damages unless its size, in comparison to the actual amount of damage, shocks the conscience. City of Jackson v. Locklar, 431 So. 2d 475, 481 (Miss. 1983). The standard of review for the denial of a remittitur is abuse of discretion. Odom v. Roberts, 606 So. 2d 114, 121 (Miss. 1992). A remittitur is appropriate when either (1) the jury or trier of fact was influenced by bias, prejudice, or passion, or (2) the damages were contrary to the overwhelming weight of the evidence. Rodgers v. Pascagoula Pub. Sch. Dist., 611 So. 2d 942, 944 (Miss. 1992). “The bias, prejudice or passion standard is purely a circumstantial standard[.]” Cade v. Walker, 771 So. 2d 403, 407 (Miss. Ct. App. 2000). “[E]vidence of corruption, passion, prejudice
or bias on the part of the jury (if any) is an inference . . . to be drawn from contrasting the amount of the verdict with the amount of the damages.” Rodgers, 611 So. 2d at 944-45.
Entergy Miss., Inc. v. Bolden, 854 So. 2d 1051, 1058 (Miss. 2003). Based on these standards, we find that the State is not entitled to a remittitur. The State‘s argument regarding the New Seawall takes the Murphys’ deposition testimony out of context. Ray clarified the aforementioned statements during his testimony at trial, explaining that he and his brothers considered the New Seawall and the municipal harbor to be part of one project. The Murphys testified that other upland property owners had received permits to build over the New Seawall, and they believed that they would have the same option, since the seawall did not completely block their access to or view of the beach. The construction of the harbor, however, did completely cut off their access to and view of the beach. Thus, in the Murphys’ estimation, these projects combined caused a ninety percent devaluation of their property. In addition, the jury was instructed that it could not hold the State liable if it found that the damage to the Murphys’ property was caused solely by the Army Corps of Engineers. Finally, we note that the jury‘s award of damages was lower than the Murphys’ calculation of compensatory damages caused by the taking. Accordingly, we find that the jury‘s verdict should not be disturbed.
V. Whether the trial court erred in awarding attorneys’ fees, expenses, and interest against the State.
¶51. In addition to just compensation for the taking of their property, the Murphys’ complaint requested attorneys’ fees and expenses pursuant to
¶52. “A trial court‘s decision on attorneys’ fees is subject to the abuse of discretion standard of review.” Bank of Miss. v. S. Mem‘l Park, Inc., 677 So. 2d 186, 191 (Miss. 1996) (citing Barber v. Barber, 105 So. 2d 630 (Miss. 1958)). However, a party is not entitled to attorney‘s fees unless a statute or other authority so authorizes. McLain v. West Side Bone & Joint Ctr., 656 So. 2d 119, 123 (Miss. 1995). “Costs and fees are not recoverable in eminent domain cases as a matter of constitutional right, . . . but are a matter of Legislative grace.” City of Gulfport v. Anderson, 554 So. 2d 873, 878 (Miss. 1989) (citing State Highway Comm‘n v. Hayes, 541 So. 2d 1023, 1026 (Miss. 1989)). Thus, whether the Legislature has authorized an award of attorneys’ fees under the facts of this case is a question of law to be reviewed de novo. Bank of Miss., 677 So. 2d at 191.
¶53.
Where an inverse condemnation proceeding is instituted by the owner of any right, title or interest in real property because of use of his property in any program or project in which federal and/or federal-aid funds are used, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the state‘s attorney effecting a settlement of any such proceeding, shall determine and award or allow to such plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the state‘s attorney, reimburse such plaintiff for his reasonable costs, disbursements and expenses, including reasonable attorney, appraisal, and engineering fees, actually incurred because of such proceeding.
¶54. The State‘s argument runs contrary to the plain language of
CONCLUSION
¶55. For the foregoing reasons, we affirm the jury‘s verdict.
¶56. AFFIRMED.
DICKINSON AND RANDOLPH, P.JJ., LAMAR, KITCHENS, KING, COLEMAN, MAXWELL AND BEAM, JJ., CONCUR.