City of Jacksonville v. Nixon

2014 Ark. App. 485, 442 S.W.3d 906, 2014 Ark. App. LEXIS 666
CourtCourt of Appeals of Arkansas
DecidedSeptember 24, 2014
DocketCV-14-65
StatusPublished
Cited by4 cases

This text of 2014 Ark. App. 485 (City of Jacksonville v. Nixon) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Jacksonville v. Nixon, 2014 Ark. App. 485, 442 S.W.3d 906, 2014 Ark. App. LEXIS 666 (Ark. Ct. App. 2014).

Opinion

ROBERT J. GLADWIN, Chief Judge.

| jThis eminent-domain action returns to this court after a previous dismissal for lack of a final order. City of Jacksonville v. Nixon, 2013 Ark. App. 302, 2013 WL 1919577. The City of Jacksonville (“City”) claims that the circuit court’s order merits reversal because of an irregularity in the proceedings and improper damages awards. After considering each of the City’s arguments, we affirm the circuit court’s ruling in its entirety.

On September 17, 2010, and pursuant to Arkansas Code Annotated section 18-15-201 (Repl.2003), the City filed an application for condemnation and a request for immediate possession against several defendants including Graham Dewitt Nixon, Walter W. Nixon III, and Dana Nixon (“Nixons”). The City sought partial condemnation of twelve parcels of property for the Graham Road Project. The project would create a four-lane road with sidewalks and replace and relocate utility lines. The Nixons owned three parcels of the land | ato be condemned — Tracts 35, 36, and 74. The circuit court issued an order of immediate possession on September 28, 2010. Later, an amended and agreed order of immediate possession was filed wherein the Nixons agreed that the City had the authority to take immediate possession of their property but reserved adjudication of their additional monetary-damages claims.

The circuit court held a bench trial to determine the Nixons’ just compensation and awarded the Nixons a total of $73,868.84 in damages in an order entered on April 3, 2012. The City appealed the circuit court’s order, and this court dismissed the appeal because the order was not final. City of Jacksonville, supra. Upon return to the circuit court, a judgment and Rule 54(b) certificate were entered as to the Nixons on September 26, 2013. The substance of this judgment was the same as the order rendered in April 2012. The City’s timely appeal followed.

I. Standard of Review

In reviewing the findings after a bench trial, we reverse only if the findings are clearly erroneous or clearly against the preponderance of the evidence. Center-Point Energy Gas Transmission Co. v. Green, 2012 Ark. App. 326, at 9, 413 S.W.3d 867, 873. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake was committed. Id.

13II. Irregularity in the Proceedings

The City proceeded first in the trial of this matter and contends that this caused an irregularity in the proceedings necessitating reversal. Arkansas Code Annotated section 16-64-110(3)(a) (Repl. 2005) requires the party with the burden of proof to produce his or her evidence first. In eminent-domain proceedings, it has long been the law in this state that the defendant is accorded the opening and conclusion of a case. Springfield & Memphis Ry. v. Rhea, 44 Ark. 258 (1884). The extent of the damage is the object of the inquiry, and the landowner bears the burden of proving this. Id.; see also Ark. State Highway Comm’n v. Post, 330 Ark. 369, 372-73, 955 S.W.2d 496, 498 (1997).

The circuit court clearly failed to conduct this trial in the procedurally appropriate manner. However, we do not reach the merits of this issue. No objection to the irregularity was raised during the trial of this matter. The City raised its objection in a motion for new trial. However, the City’s notice of appeal was filed before its motion for new trial was deemed denied. Therefore, the City’s failure to amend its notice of appeal to include the circuit court’s denial of the new-trial motion left only the circuit court’s final order of September 2013 for our review. A notice of appeal should designate the judgment, decree, order or part thereof appealed from. Ark. R.App. P.-Civ. 3(e)(ii). It must be judged by what it recites and not what it was intended to recite, and it must state the order appealed from with specificity as orders not mentioned in it are not properly before the court. Ark. Dep’t of Human Sews. v. Shipman, 25 Ark.App. 247, 756 S.W.2d 930 (1988). The City’s challenge to the irregularity was not preserved for our review.

|4II. Damages

A. The Living Fence

• The circuit court awarded $41, 226.25 in damages as compensation for the destruction of a living fence on Tract 36. In partial-takings cases, the landowner is entitled to the value of the lands taken, plus damages to the lands not taken. Young v. Ark. State Highway Comm’n, 242 Ark. 812, 415 S.W.2d 575 (1967). There is no Arkansas case law regarding living fences, but guidance from another jurisdiction provides that “[p]eople do have a basis in common practice and understanding for knowing what a fence is,” and “if the growth serve[s] the purposes of confinement, means of protection or use as a boundary, it would constitute a ‘fence.’ ” Town of Clyde Hill v. Roisen, 111 Wash.2d 912, 767 P.2d 1375, 1378 (1989). The removal of the trees on Tract 36 is compen-sable if it caused damage to the lands not taken.

For years, the property was marketed and rented as an event center — the Nixon Flower Farm. Dana Nixon testified that the condemnation of Tract 36 resulted in the removal of trees that operated as a living fence and made the property a desirable event venue. She claimed that the trees provided noise and sight protection by blocking the view of the house and the gardens. She further contends that the lack of privacy caused by the removal of the trees lessened the value of the property. The City’s witnesses asserted that it fully compensated the Nixons for the loss of the trees and testified that the trees on Tract 36 were nondescript, of varying sizes, and did not act as a living fence. Facts in dispute and determinations of credibility are solely within the province of the fact-finder. City of Rockport v. City of Malvern, 2010 Ark. 449, at 6, 374 S.W.3d 660, 663. There is sufficient evidence to 1 ¡¡support the circuit court’s finding that Tract 36 included a living fence and that the removal of the fence caused damages to the lands.

We now determine whether the award of $41,226.25 for the living fence was clearly erroneous. The Nixons must show the value of the loss because establishment of the value of loss is a requirement for an award of damages. Revels v. Knighton, 305. Ark. 109, 805 S.W.2d 649 (1991). The Nixons provided an estimate from Bemis Tree Service for $41,226.25 representing the amount it would charge to plant trees and shrubbery and begin restoring the living fence. Dana Nixon testified that this estimate did not represent the replacement value of the trees taken because the estimate would only begin to fill in the dense screen that was previously on the property.

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2014 Ark. App. 485, 442 S.W.3d 906, 2014 Ark. App. LEXIS 666, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-jacksonville-v-nixon-arkctapp-2014.