KW-DW PROPERTIES, LLC; DEBRA A. LANG, IN HER OFFICIAL CAPACITY AS WHITE COUNTY TAX ASSESSOR; SUE LILES, IN HER OFFICIAL CAPACITY AS WHITE COUNTY TAX COLLECTOR; CERTAIN LANDS BEING 2.363 ACRES, MORE OR LESS, IN WHITE COUNTY, ARKANSAS; AND ANY AND ALL PERSONS OR ENTITIES CLAIMING AN INTEREST THEREIN APPELLANTS
v.
ARKANSAS STATE HIGHWAY COMMISSION APPELLEE
APPEAL
FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73CV-16-305-1]
HONORABLE THOMAS M. HUGHES, JUDGE
The
Miller Firm, by: Carla L. Miller; and Hopkins, Headlee &
Casteel, PLLC, by: Stewart Headlee, for appellant.
M.
Todd Elder; and David S. Long, for appellee.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE
Appellants
KW-DW Properties, LLC; Debra A. Lang, in her official
capacity as White County Tax Assessor; Sue Liles, in her
official capacity as White County Tax Collector; certain
lands being 2.363 acres, more or less, in White County,
Arkansas; and any and all persons or entities claiming an
interest therein (collectively KW-DW), [1] appeal the White
County Circuit Court's entry of a $650 deficiency
judgment against the Arkansas State Highway Commission (the
Commission) after a jury determined that the Commission owed
KW-DW $36, 000 for just compensation in an eminent domain
action. We granted the Commission's motion to transfer
the case from the court of appeals and now affirm.
I.
Factual and Procedural Background
On June
21, 2016, the Commission filed a declaration taking
approximately 2.363 acres of KW-DW's property. The
Commission sought the land in connection with what is
commonly known as the Highway 36-Highway 16 project in White
County. After the Commission took the acreage needed for the
highway, KW-DW's property was divided into two
"remainders." The left remainder, located to the
west of the future highway, consisted of approximately 5.91
acres after the taking. The right remainder totaled
approximately 57.4 acres after the taking. The right
remainder included a narrow, approximately two-acre peninsula
running south along the highway right of way.
The
Commission deposited $35, 350 with the circuit court as the
estimated just compensation for the taking. The matter
proceeded to an August 30, 2017 jury trial for final
determination of the compensation due. Four witnesses
testified at trial. KW-DW's first witness, Adam Whitlow,
testified that he is a registered professional land surveyor.
Whitlow did not offer an opinion on the value of the property
but testified that he was only asked to draw a boundary.
Keith Webb, one of the members of KW-DW, testified that
before the taking, the value of the entire tract KW-DW owned
was $1, 608, 670 at $24, 500 per acre. Webb's opinion was
based in part on two recent sales of neighboring property at
sales prices of $24, 500 per acre and $25, 000 per acre. In
Webb's opinion, the value of the property after the
taking was $1, 393, 500. Webb testified that he was entitled
to the difference of about $215, 000, which included the
value of the property actually taken, as well as damages to
the remaining land. KW-DW's expert, Diana L. Thompson, a
certified general real estate appraiser, testified that the
KW-DW property as a whole had a before-taking value of $18,
000 per acre, for a total value of $1, 181, 880. Thompson
acknowledged that the report of the Commission's
appraiser concluded that the KW-DW property was worth $15,
000 per acre. Thompson further testified that, after the
taking, the KW-DW property was worth $1, 023, 795, for a
just-compensation calculation of $158, 085. Thompson's
estimate included damages of a 75 percent reduction to the
value of the left remainder and a 100 percent reduction to
the value of the two-acre portion of the right remainder.
David Hall, a surveyor and licensed professional engineer
employed by the Commission, testified concerning the
possibility of using the remaining property for residential
development. Hall determined that the left remainder was
suitable for ten residential lots and that the two-acre
portion of the right remainder to which Thompson assigned
zero value was suitable for three residential lots. Hall did
not testify as to a per-acre value.
The
jury determined the final, just compensation due to be $36,
000. The Commission prepared a judgment for the court
reflecting an award of $650 to be paid to KW-DW, which
represented the difference in the jury's final award and
the estimated amount deposited by the Commission. KW-DW did
not agree to the proposed judgment, instead arguing that it
was entitled to the full $36, 000 in addition to the amount
previously deposited. On September 14, 2017, after giving the
Commission credit for the $35, 350 already deposited with the
court, the circuit court entered judgment against the
Commission for the deficiency of $650. On September 22, 2017,
KW-DW filed a motion to modify or vacate the judgment
pursuant to Rule 60 of the Arkansas Rules of Civil Procedure.
That motion was deemed denied after thirty days when the
circuit court took no action. KW-DW filed a motion for a new
trial on September 28, 2017. The circuit court denied that
motion on October 3, 2017. KW-DW filed a timely notice of
appeal.
II.
Analysis
A. The
Judgment
1.
The verdict
KW-DW
first argues that the circuit court erred by entering
judgment for the $650 deficiency rather than for the full
$36, 000 reflected in the jury verdict. KW-DW argues that the
circuit court was not authorized to enter judgment against
the Commission pursuant to Arkansas Code Annotated §
27-67-317(b) (Supp. 2017). That section provides that
[i]f the compensation finally awarded exceeds the amount of
money deposited by twenty percent (20%) or more, the court
shall enter judgment against the State of Arkansas and in
favor of the party entitled thereto for the amount of the
deficiency and shall award the party entitled to judgment its
costs, expenses, and reasonable attorney's fees incurred
in preparing and conducting the final ...