Pope v. Overton

2011 Ark. 11

376 S.W.3d 400

Ricky and Christine POPE, Appellants

v.Michael OVERTON and Entergy Arkansas, Inc., Appellees.

No. 10–63.

Supreme Court of Arkansas.

Jan. 20, 2011.

Gary Holt & Associates, P.A., by: Breean Walas, Little Rock, for appellants.

Wood, Smith, Schnipper, Clay & Vines, Hot Springs National Park, by: Don M. Schnipper, and Janan Honeysuckle, Entergy Arkansas, Inc., for appellees.

PAUL E. DANIELSON, Justice.

Appellants Ricky and Christine Pope appeal from the order and judgment of the Hot Spring County Circuit Court granting a directed verdict in favor of appellee Entergy Arkansas, Inc.; granting a directed verdict in favor of appellee Michael Overton to set the maximum amount of damages for the Popes' conversion claim against him at $188.95, trebled; and dismissing the Popes' trespass claim and cause of action against Overton and Overton's claim and cause of action against the Popes following a jury verdict. Additionally, the Popes appeal from the circuit court's order awarding costs pursuant to Ark. R. Civ. P. 68 to Overton. We affirm in part and reverse in part.

The relevant facts are these. In September 2004, the Popes purchased 31.5 acres of land in Hot Spring County, Arkansas, for $57,500. They purchased the property as an investment, as well as for their own personal, recreational use. In 2007, the Popes listed their property for sale. The property was listed for $159,000, but was later reduced to $129,000.

After the Popes' property was listed, Overton, the Popes' neighbor, contacted Entergy to request that electrical service be extended to his property. Entergy and Overton agreed upon a route across the Popes' property, and Entergy informed Overton that he needed to acquire a right-of-way easement from the landowner. Overton never obtained the right-of-way from the Popes and proceeded to hire a contractor to clear the Popes' property.

When the Popes learned that the power lines had been put through their property, they filed suit against Entergy and Overton. The Popes then moved for summary judgment against Entergy on the issue of liability, which was denied by the circuit court. The case proceeded to trial and, at the close of the Popes' case, Entergy moved for directed verdict. The circuit court granted the motion.

Overton also moved for directed verdict after the close of the Popes' case, but his motion was denied. At the close of all the evidence, Overton again moved for directed verdict and stipulated to liability on the conversion claim and to an award of damages in the amount of $188.95, trebled, which the court granted. The trespass claim was submitted to the jury and, upon the verdict of the jury, the trespass claim was dismissed with prejudice.

Judgment was entered on September 25, 2009. The Popes filed a timely notice of appeal. Entergy and Overton then filed a joint petition for costs. The Popes objected to any costs being awarded under Rule 68 of the Arkansas Rules of Civil Procedure. However, on November 30, 2009, the court awarded Rule 68 costs to Overton. The Popes supplemented their notice of appeal and included the court's judgment for costs. The circuit court denied the Popes' objection to the entry of the proposed judgment for costs and, therefore, the Popes supplemented their notice of appeal to include that denial. We now reach the merits of the Popes' appeal.

The Popes first argue that the circuit court applied the wrong standard for damages to be recovered by a plaintiff in an inverse condemnation proceeding and, therefore, erred in granting Entergy's motion for directed verdict. Entergy responds that the Popes failed to provide facts to support their contented value of their property and failed to provide evidence of the value of the land taken or any damage to the remainder of their property. Therefore, Entergy contends, the circuit court did not abuse its discretion in granting Entergy's motion for directed verdict. We agree.

In deciding whether the grant of a motion for directed verdict was appropriate, appellate courts review whether there was substantial evidence to support the circuit court's decision. See One Nat'l Bank v. Pope, 372 Ark. 208, 272 S.W.3d 98 (2008). A motion for directed verdict should be granted only if there is no substantial evidence to support a jury verdict. See id. Stated another way, a motion for directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury's verdict for the party to be set aside. See id. Where the evidence is such that fair-minded persons might reach different conclusions, then a jury question is presented, and the directed verdict should be reversed. See id.

An electric utility may exercise the power of eminent domain by filing a condemnation petition in court, and, in that proceeding, damages for the taking are assessed. SeeArk.Code Ann. § 18–15–503(b) and § 18–15–504(a) (Repl.2003). However, if the utility takes an owner's land but does not file an eminent domain proceeding, the owner may initiate his own inverse condemnation action. See DeBoer v. Entergy Arkansas, Inc., 82 Ark. App. 400, 109 S.W.3d 142 (2003). Inverse condemnation is a cause of action to recover the value of the property which has been taken in fact, although not through eminent domain procedures. See id. (citing Robinson v. City of Ashdown, 301 Ark. 226, 783 S.W.2d 53 (1990)). Inverse condemnation actions against utilities are governed by Ark.Code Ann. § 18–15–102 (Repl.2003). See DeBoer, supra. Subsection (b) provides that “[t]he measure of recovery in the action shall be the same as that governing proceedings by corporations for the condemnation of property.” Ark.Code Ann. § 18–15–102(b). In other words, the same measure of damages is used whether the proceeding is an eminent domain action filed by the utility or an inverse condemnation action filed by the landowner. See DeBoer, supra.

As our court of appeals explained in DeBoer:

The measure of damages in a condemnation case depends on whether the land is taken by the sovereign or by another entity. When the sovereign exercises its right to take a portion of a tract of land, the proper measure of compensation is the difference in fair market value of the entire tract immediately before and after the taking. Property Owners Improvement Dist. v. Williford, 40 Ark. App. 172, 843 S.W.2d 862 (1992). When another entity such as a railroad, telephone company or, in this case, an electric company, exercises the right of eminent domain, just compensation is measured by the value of the portion of the land taken plus any damage to the remaining property. See id.; see also Arkansas La. Gas Co. v. Howell, 244 Ark. 86, 423 S.W.2d 867 (1968); Arkansas La. Gas Co. v. James, 15 Ark. App. 184, 692 S.W.2d 761 (1985). Fault has nothing to do with eminent domain or inverse condemnation; it is the taking of property that is actionable. See Thompson v. City of Siloam Springs, 333 Ark. 351, 969 S.W.2d 639 (1998). Further, recovery under the inverse condemnation statute is exclusive. Missouri & N. Ark. R.R. Co. v. Chapman, 150 Ark. 334, 234 S.W. 171 (1921). Additionally, the value of trees destroyed by a utility in constructing a right-of-way is not a separately compensable item of damage. See Cramer v. Arkansas Okla. Gas Corp., 316 Ark. 465, 872 S.W.2d 390 (1994); Arkansas La. Gas Co. v. Maxey, 242 Ark. 698, 415 S.W.2d 52 (1967).

82 Ark. App. 400, 404–05, 109 S.W.3d 142, 144–45.

The Popes' remedy for the taking of their property was to recover the value of the portion of the land taken plus any damage to the remaining property. In granting Entergy's motion for directed verdict, the circuit court found:

Entergy has alleged and has moved and argued that the most that this is an inverse condemnation case and that is why they are involved in this lawsuit. [ sic ] And the Court believes that without doubt that is correct. The Court is also convinced and in reading and re-reading the [DeBoer ] case, that the only recovery for such a taking is by Arkansas Code 18–15–102 and I'm reading from the head notes of that case that I mentioned. It says that [they are permitted] to recover only the value of the portion of the land taken plus any damage to the remaining property. The statute did not permit recovery of replacement value of the trees nor just the removal of the trees. And it even goes so far to say that the tree service and obviously, that's the group that cut the trees in this instance working at the request or involvement of Entergy. [ sic ] That the only recovery even as against them would be the damages allowed under eminent domain and inverse condemnation. That is the difference into the before and after values of the land taken. There is absolutely no testimony, none, much less credible, as regards the value of the land taken before and after. If anything, it's obvious that the land is worth more than it's ever been. Motion is granted as to Entergy.

While the Popes argue that the circuit court used the before and after value of the entire property as the standard for the measure of damages, the court specifically stated that the standard was the value of the portion of the land taken plus any damage to the remaining property. However, it was the circuit court's conclusion that there was no substantial evidence presented as to the value of the land before and/or after the taking.

The Popes contend that a reasonable jury could have concluded and assessed damages from Christine Pope's testimony regarding the listing price of their property with a real estate company and Ricky Pope's testimony that they were unable to sell their property after the real estate agent stopped bringing people to the land. However, regardless of whether that testimony was substantial evidence as to the value of their property as a whole, the circuit court found that the Popes failed to present any credible evidence of the value of the land taken or of any damage to the...