Cite as 2026 Ark. App. 517
ARKANSAS COURT OF APPEALS
DIVISIONS I & IV
No. CV-25-110
ARKANSAS STATE HIGHWAY Opinion Delivered October 28, 2026
COMMISSION
APPELLANT APPEAL FROM THE FAULKNER
COUNTY CIRCUIT COURT
V. [NO. 23CV-15-754]
HONORABLE SUSAN K. WEAVER,
WILLIAM LEWIS AND CODY LEWIS, JUDGE
CO-TRUSTEES OF THE WILLIAM
MAJOR LEWIS TRUST U/T/D
12/21/2000
APPELLEES AFFIRMED
MIKE MURPHY, Judge
This is an eminent-domain appeal from a $3 million jury verdict entered in the
Faulkner County Circuit Court in favor of the property owners, appellees William Major
Lewis and Cody Lewis, as co-trustees of the William Major Lewis Trust (hereinafter “the
Lewises”) against the appellant Arkansas State Highway Commission. The case concerned a
condemnation and taking of portions of land owned by the trust. On appeal, the Highway
Commission argues that (1) the court erred when it allowed testimony regarding roads and
roundabouts the Lewises claimed they had to build due to the taking; (2) substantial evidence
does not support the verdict; and (3) the amount and manner in which attorney’s fees were
awarded was improper. We affirm.
I. Facts and Procedural History
On August 7, 2015, the Highway Commission condemned portions of two tracts
owned by the Lewises, taking a right-of-way and controlling access across both. The taking
eliminated the tracts’ direct, unrestricted frontage access to Dave Ward Drive, which the
Lewises and their tenant had used to reach the property before the taking. After the taking,
the Lewises were limited to an unpaved, unimproved road on the east side and an access
point on the old Amity Road on the west side of tract 1. The Highway Commission deposited
$417,825 into the registry of the court as its estimate of just compensation.
The case proceeded through several years of appraisal work and discovery before its
first pretrial hearing. On April 9, 2018, the circuit court heard the parties’ cross-motions in
limine and, as relevant here, granted the Lewises’ motion to admit evidence of the cost of
constructing replacement roads and roundabouts to restore access to Dave Ward Drive. The
court simultaneously denied the Highway Commission’s motion to exclude that evidence. It
admitted proof that the Lewises spent roughly $4–$4.5 million constructing a relocated
Amity Road and an east-west connector road, which the City of Conway required before it
would authorize any road restoring access to the Dave Ward Drive-fronting remainder. The
court found that the Lewises could not use the cost-to-cure or betterment evidence directly
as the measure of damages but could otherwise present evidence of the roads and their cost
at trial.
2
The Highway Commission renewed its motion in limine on May 2, 2024, again
seeking to exclude the Lewises’ cost-to-cure evidence. The circuit court again denied the
motion, and the case proceeded to a jury trial beginning June 4.
At trial, the Lewises’ appraiser, Diana Thompson, opined that the total amount of
just compensation for both tracts was $3.8869 million using a comparable-sales approach
with adjustments for size, location, and time and, for tract 1, an income-capitalization
approach reflecting the lost rental income when the Lewises’ tenant relocated. Trustee Cody
Lewis gave lay-opinion testimony that the market value of tract 1 was $16 a square foot (about
$14 million) before the taking and $10 a square foot after the taking (about $8.564 million).
Lewis testified that the market value of tract 2 was $14 a square foot (about $4.592 million)
before the taking and $8 a square foot (about $2.411 million) after the taking. He explained
that the City of Conway required the Lewises to build a relocated Amity Road and
connecting drive at a cost of several million dollars before they could make commercial use
of the property abutting Dave Ward Drive. They additionally had to use seven acres from
their remaining land for the construction. Audie Alumbaugh, the Lewises’ accountant,
echoed this testimony. At the close of the Lewises’ case, the circuit court denied the Highway
Commission’s motion for a directed verdict, explaining that the Highway Commission’s
objections went “to the credibility and weight for the jury to give” the evidence.
The Highway Commission’s appraiser, Cheslyn Bartlett, testified that access
remained to both tracts after the taking and opined that total just compensation was
$417,825. To arrive at this figure, she used a comparable-sales approach only with no
3
severance-damage component. The Highway Commission renewed its motion for a directed
verdict at the close of all the evidence; the court again denied it, and the case went to the
jury with instructions that it could consider restoration or cost-to-cure evidence “only as an
aid in arriving at the amount of just compensation” and that such costs “are not the measure
of damages.” The jury returned a verdict of $3 million.
On June 20, 2024, postverdict but before entry of the final judgment, the Lewises
moved for prejudgment interest at “a proper rate,” attorney’s fees, costs, and appraiser’s fees,
relying on Arkansas Code Annotated section 27-67-317(b) (Repl. 2022), and Wilson v. City
of Fayetteville, 310 Ark. 154, 838 S.W.2d 366 (1992). The motion included the Lewises’
contingency-fee agreement, counsel’s affidavit and itemized billing records, a second
attorney’s affidavit opining that the rate, time, and fees claimed were reasonable, and a CPA’s
affidavit opining that a reasonable rate of return on a moderately invested portfolio ran from
7.7 percent to 8.2 percent, compounded annually. The Highway Commission responded on
July 30, making several arguments; it did not, however, contest the reasonableness of the
rate, hours billed, or requested amount.
On August 12, the circuit court entered judgment on the jury’s verdict, awarding the
Lewises the roughly $2.582 million balance remaining after the Highway Commission’s
deposit plus interest at 8 percent, compounded annually, accruing from August 7, 2015, the
date of the taking. The court separately awarded $123,195.68 in attorney’s fees, costs, and
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appraiser’s fees plus interest at 8 percent, compounded annually, accruing from the date of
the judgment. From this, the Highway Commission timely appealed.1
II. Evidence of Road Building
The Highway Commission first argues that the court abused its discretion by
admitting evidence that the Lewises built roads and roundabouts after the taking. We review
a circuit court’s decision to admit or exclude evidence for abuse of discretion. Dovers v.
Stephenson Oil Co., 81 Ark. App. 92, 98 S.W.3d 462 (2003).
Cost-to-cure evidence has long been admissible in Arkansas condemnation cases as
an aid to determining the diminution in market value a taking caused and as evidence of a
landowner’s efforts to mitigate that diminution. Ark. State Highway Comm’n v. Ptak, 236 Ark.
105, 364 S.W.2d 794 (1963); Ark. State Highway Comm’n v. Dean, 244 Ark. 405, 425 S.W.2d
306 (1968). The controlling authority is Arkansas State Highway Commission v. Speck, 230 Ark.
712, 324 S.W.2d 796 (1959). In Speck, a controlled-access taking left a farm without direct
access to a severed tract, and our supreme court approved evidence of the cost to build a
replacement road and bridge restoring that access as “a proper element to consider” in
valuing the remainder. Id. at 718, 324 S.W.2d at 799.
We measure just compensation as of the date of taking, comparing the value of the
property immediately before the taking with its value immediately after, as though the
condemnor’s project were then complete. Ark. State Highway Comm’n v. Littlefield, 247 Ark.
1
The Lewises filed a notice of cross-appeal but explicitly abandoned it in their response brief.
5
686, 447 S.W.2d 146 (1969). That rule fixes the valuation date; it does not require every
item of cost-to-cure evidence to be contemporaneous with the taking. Speck contemplated
this. In Speck, the supreme court explained that the jury determines “the type of
improvement that will more nearly restore the property to its original status,” with such
“prospective expenditures” serving “only [as] an aid in determining the difference in the
before and after value of the property.” Speck, 230 Ark. at 720, 324 S.W.2d at 800. The
timing of construction accordingly bears on the weight of cost-to-cure evidence and is not a
categorical bar to its admission.
That is the finding the court made on this record twice. The Highway Department’s
taking extinguished the Lewises’ direct frontage access to Dave Ward Drive, the property’s
“most prime” access. The roads the Lewises built were the means of restoring functional
access to the part of the property fronting the highway. Cody Lewis testified that if the
Lewises were “going to use this property at all,” they had no choice but to build the road the
City designed.
Whether that testimony—and the City’s demand—in fact flowed from the taking or
instead reflected development costs the Lewises would have borne regardless of it was
squarely contested. At the 2024 hearing on the Highway Commission’s renewed motion in
limine, its counsel read into the record Thompson’s 2018 deposition testimony. When asked
directly whether the Lewises would still have had to put in a road had the Commission’s
project never happened, she answered yes. The circuit court heard that argument and denied
the motion anyway for the reasons it had already given in 2018. At trial, the Commission
6
put the same proposition to Thompson again, and her answer was more qualified than the
deposition excerpt, standing alone, suggests. She agreed that, because the property had no
internal roads and a preexisting ditch already blocked travel between its northern and
southern portions, part of the Lewises’ development plans “would have needed” some road
work regardless of the taking, but she maintained throughout that the taking of the Dave
Ward Drive frontage was what “took away [the Lewises’] ability to commercially develop it
the way [they] wanted to” since, absent the taking, “[t]hey would have had frontage off of
Dave Ward Drive.” The Commission pressed its contrary theory directly to the jury in closing
argument: “[T]hey would have needed a road anyway. . . . How else are you going to get up
there?” The jury heard both sides of that dispute and was entitled to resolve it either way.
The fact that the $3,000,000 verdict came in below Thompson’s own $3,886,900 opinion
of total just compensation is consistent with a jury that weighed the Commission’s causation
argument and discounted for it, not one that disregarded it. Resolving that kind of causal
dispute is the jury’s task, not ours. See Ark. State Highway Comm’n v. Fowler, 240 Ark. 595,
401 S.W.2d 1 (1966) (affirming a condemnation verdict against a substantial-evidence
challenge where the landowners’ and the Commission’s valuation testimony conflicted).
The dissent would go further and hold that any relevance of the road-building
evidence was conditioned on a showing, under Ark. R. Evid. 104(b), that a willing buyer
could have determined from regulations or ordinances in force on the date of taking that
this specific cost would follow. That argument is not before us. Neither of the Highway
Commission’s two motions in limine asked the circuit court to apply a Rule 104(b)
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conditional-relevance screen, and neither of its briefs on appeal mentions Rule 104(b). We
do not reverse a circuit court’s decision that fails to apply a framework no party asked it to
apply, and we do not construct an appellant’s argument for it where the appellant has not
made it.
The Highway Commission’s principal authority, Arkansas State Highway Commission v.
Barker, 326 Ark. 403, 931 S.W.2d 138 (1996), does not require a different result. Barker
reversed a verdict built on a betterment with no tie to restoring any access or utility the taking
itself had impaired. Our supreme court held that a landowner is entitled to just
compensation, not to be “unjustly enriched at the expense of the public purse.” Id. at 407,
931 S.W.2d at 141.
In Barker, Barker’s circular driveway, like the Lewises’ roads, was built in part to
restore access the taking had impaired. What our supreme court condemned was not that
connection but the appraiser’s method. The appraiser deducted the driveway’s $10,300 cost
and maintenance directly from his comparable-sales after-taking value so that the cost of the
cure became, in effect, the measure of damages rather than an aid to the jury’s own
determination of diminution.
Here, by contrast, the circuit court instructed the jury that restoration costs “are not
the measure of damages to which the landowners are entitled, but may be an aid in
determining the difference between the before and after value of the property,” and neither
Thompson nor the Lewises asked the jury to award the roughly $8 million in construction
costs and land value the City’s design required—or any other cost-to-cure figure—as damages
8
in its own right. Again, the $3,000,000 verdict that came in below Thompson’s own
$3,886,900 opinion of total just compensation suggests the jury did what the instruction
asked, not what Barker forbids.
Finally, the record itself surfaces a genuine conflict over whether Enterprise Road,
one of the Lewises’ two remaining points of access after the taking, was, as the Lewises’
appraiser testified, a private road unsuited to commercial use; or, as the Lewises’ own
accountant testified on cross-examination, a road the family’s predecessors dedicated to the
City in 1990. Both versions are in the record, and it was for the jury, not this court, to weigh
them. But the conflict does not change our result because, regardless of either version, the
undisputed evidence was that Enterprise existed to let a utility reach a power station with a
roundabout the City “specially designed” for that single purpose—not to serve as
commercially zoned highway frontage. A reasonable jury could find that whether or not the
underlying right-of-way was privately held or publicly dedicated, Enterprise did not
functionally replace the direct, by-right frontage access to Dave Ward Drive that the taking
eliminated.
We find no abuse of discretion in admitting the cost-to-cure evidence, and we affirm
on this point.
III. Substantial Evidence
The Highway Commission next argues that the circuit erred in allowing evidence of
severance damages because the Lewises still had reasonable access. It explains this error
resulted in an excessive judgment not supported by substantial evidence. As explained above,
9
an actual taking of an access right can support compensation for the resulting impairment
of the remainder even where some other access remains. Ark. State Highway Comm’n v.
Billingsley, 247 Ark. 49, 444 S.W.2d 259 (1969). Whether the remaining access was, in fact,
reasonably equivalent is a question of fact. Ark. State Highway Comm’n v. Rye, 255 Ark. 223,
499 S.W.2d 624 (1973).
The record supports the jury’s resolution of that question, including the causation
dispute addressed above. The Lewises’ appraiser, Diana Thompson, an experienced,
credentialed appraiser, opined that total just compensation was $3.8869 million. To arrive
at this figure, she used a comparable-sales approach for both tracts and, for tract 1, an
income-capitalization approach reflecting lost rental income. Trustee Cody Lewis testified as
a landowner familiar with property his family had held for decades that without the citymandated roads, the property was much less valuable and had little commercial use after the
taking. Neither witness’s testimony was struck, and a landowner’s opinion of his own
property’s value is competent evidence without further qualification. Ark. State Highway
Comm’n v. Person, 258 Ark. 379, 525 S.W.2d 77 (1975). Against that testimony, the Highway
Department’s own appraiser valued the taking at $417,825. To arrive at that figure, he used
comparable sales alone without a time adjustment and without any severance-damage
analysis. The jury’s $3 million verdict sits within the range framed by the parties’ valuation
witnesses. Facts in dispute and determinations of credibility are solely within the province of
the fact-finder. City of Jacksonville v. Nixon, 2014 Ark. App. 485, at 6, 442 S.W.3d 906, 911.
We are unable to say the damages on this record are excessive, and we affirm on this point.
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IV. Attorney’s Fees
The Highway Commission argues that Ark. R. Civ. P. 54(e)(2) required separate
litigation because the Lewises moved for fees on June 20, 2024—before the August 12, 2024
judgment—and the Highway Commission’s response argued the motion was not yet ripe.
The construction of a court rule is a question of law, which we review de novo. State ex rel.
Rutledge v. Purdue Pharma L.P., 2021 Ark. 133, 624 S.W.3d 106.
Rule 54(e)(2) sets an outer deadline for a fee motion, “no later than 14 days after
entry of judgment,” to guard against tardy requests. Nothing in the rule forbids moving
earlier, so long as the opposing party has fair notice and a meaningful opportunity to respond
before the matter is resolved. We reached the same conclusion in Vaughn v. Bates, 2010 Ark.
App. 98, 379 S.W.3d 1, holding that the rule’s core concern is satisfied once the opposing
party has notice and an opportunity to be heard, regardless of whether the motion technically
preceded the judgment.
The Highway Commission attempts to distinguish Vaughn because, unlike the silent
litigant there, it did object below. But the character of that objection matters. The Highway
Commission’s response argued only that the motion was premature; it did not dispute the
hours billed, the hourly rate, the reasonableness of the expenses, or the supporting affidavits,
and it did not seek a hearing or additional time to respond to the merits. Having had a full
opportunity to contest the substance of the request and declining to do so, the Highway
Commission demonstrates no prejudice from the timing of the motion.
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The Highway Commission also argues that the circuit court erroneously awarded
attorney’s fees, costs, and expenses plus interest at 8 percent compounded annually.
Under Arkansas Code Annotated section 27-67-317(b), attorney’s fees are authorized
when the jury’s award exceeds the amount deposited into the court’s registry by more than
20 percent. That condition was met here because the Highway Commission deposited only
$417,825 as its estimate of just compensation, and the jury’s award exceeds that amount by
more than 20 percent..
The Highway Commission argues that the Lewises were not entitled to 8 percent
compounded interest on this award because Ark. Code Ann. § 27-67-316(e)(1) (Repl. 2022)
caps the rate at 6 percent per annum. But § 27-67-316(e)(1) expressly applies to interest
included as part of the just-compensation award—interest on the value of the property itself—
not to collateral awards of fees, costs, and expenses under § 27-67-317(b). And the Highway
Commission correctly acknowledges that attorney’s fees, costs, and expenses are not a
component of just compensation. See Ellis v. Ark. State Highway Comm’n, 2010 Ark. 196, at
11, 363 S.W.3d 321, 327–28 (declining to extend the just-compensation interest rationale
of Wilson v. City of Fayetteville, 310 Ark. 154, 838 S.W.2d 366 (1992), to attorney’s fees).
Section 27-67-316(e)(1) is therefore inapplicable.
The Highway Commission has not identified an alternative rate that would displace
the circuit court’s choice of 8 percent. It has thus failed to carry its burden of demonstrating
that the circuit court’s interest rate was erroneous.
Affirmed.
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KLAPPENBACH, C.J., and ABRAMSON, VIRDEN, and HIXSON, JJ., agree.
HARRISON, J., dissents.
BRANDON J. HARRISON, Judge, dissenting. Even in Arkansas State Highway
Commission v. Barker, 326 Ark. 403, 931 S.W.2d 138 (1996), the record did not establish the
landowners would have built the same access “cure” if there had been no condemnation.
This record does. The Lewises’ appraiser admitted at deposition they would have had to
build a road along this route to develop this property whenever they did so. The “cure”
evidence that was wrongly admitted in Barker was a forty-foot driveway that unjustly enriched
the landowners by $10,000. Here, it is almost a mile of paved development roads and
roundabouts through raw dirt. Some might call that a windfall. What contributed to it?
Testimony the circuit court allowed (over two motions in limine) that an employee of the
City of Conway told the Lewises after the condemnation that “to use this property at all”
they would have to build and dedicate a network of roads through their holdings. A
convenient demand, perfectly timed. The Lewises put the cost of the roads at $4 million,
$4.5 million, or $8 million. But for the taxpayer-funded highway work, they’d have had to
pay for it all themselves. The litigation toll is more than $2.5 million—plus prejudgment
interest at 8 percent compounding since August 2015, about $3.5 million as I reckon it.
*
On 7 August 2015, the Arkansas State Highway Commission condemned, in two
strips, 1.62 acres of “the last developable corner lot on an intersection in Conway” close to
I-40, which fronted Dave Ward Drive (Highway 286) to the south. The Lewises owned the
13
twenty-nine adjoining acres and dozens more to the north. The land was “developable”
because they hadn’t developed it yet. It was fenced but unimproved—the kind of place you’d
put a fireworks stand.
The Commission condemned the land to widen Dave Ward and turn two
intersections into roundabouts. The new highway plan controlled access to Dave Ward near
the intersections. Because of the nine-year trial delay, the record includes aerial photos before
and after the highway construction that illustrate the change. In the images below, the
condemned tracts (marked 1 and 2) are enclosed by blue lines at the bottom and sides and
red lines on top; they are separated by the right-of-way to Enterprise Avenue running north.
The red segments with triple hash marks indicate where the Commission condemned
highway access to Dave Ward, the road at the bottom. That’s the “loss” of access we’re
talking about.
First before condemnation:
14
Now after:
In the “before” image, Tract 1 is rented to a mobile-home dealership. You can see
four dirt driveways to Tract 1 from Dave Ward or the curved frontage road to the left, and
one from Dave Ward to Tract 2. The “after” image shows that the three driveways to Tract
1 are gone and the driveway to Tract 2 has moved. But there is a new paved outlet from the
new roundabout into the Lewises’ property. And to replace the dirt driveways, the
Commission built a paved driveway to Tract 2 from Enterprise and two more to Tract 1 west
of this area.
15
If this was the access loss, what was the “cure”? The network of paved roads and
roundabouts is shaded below in blue and green. I added the dotted rectangle to show where
the aerial photos fit.1
The area the Lewises paved begins on Enterprise at the roundabout outlet the Commission
built. Best I can tell, the parts of their property that are considered remainder Tracts 1 and
1
This important diagram—the only depiction of the roads charged to the
Commission—appears in the record at RP 149 and 236. For some reason, both pages have been rotated upside down, RP number and all.
16
2 end to the north about where Enterprise starts to curve left.2 The bell-shaped symbols
beneath Tract 1 are paved access points on the frontage road. 3 The Lewises retained access
to Dave Ward on Tract 2. The orange highlight shows where.
Some cure. The Lewises’ lawyer asked in closing, “Would a businessperson, in
deciding what to pay for the property, consider the fact that the City of Conway is going to gig
them for $8 million to use any of the property?” (Emphasis added.) Well, a few problems with
that.
The Lewises were seeking compensation from the Commission, not the City.
The City made that demand months or years after the condemnation.
Nothing linked it to the condemnation causally in any previously recognized
way.
The only people gigged were the taxpayers.
The measure of damages for a partial taking is the difference between the market
value of the whole tract immediately before the taking and the market value of the part that
2
I should not have to guess. For a case with veteran Commission lawyers on both sides—condemnation specialists all, in other words—the appellate record is no bueno. For that matter, neither was the trial record. The need to decipher where the Commission had condemned access on Dave Ward from hash marks on highway engineering schematics left the lawyers for both sides and many witnesses confused throughout these proceedings about how many access points remained—just a $4 to $8 million issue.
3
The relevant roads had multiple names before condemnation, and those names changed by the trial date:
Old Names Current Names
I-40 Frontage Road / Amity Road / South Crain Drive
Amity Road
Enterprise Avenue / Exchange Road New Amity Road / South Amity Road
17
remains afterward, less any enhancements peculiar to the lands. Barker, 326 Ark. at 407,
931 S.W.2d at 141. The aerial photos above were taken years apart; but the important
question is how the property changed over two consecutive days in August 2015—August 6,
the day before condemnation, and August 7, when we pretend the Commission’s planned
construction was retroactively complete. Ark. State Highway Comm’n v. Littlefield, 247 Ark.
686, 690, 447 S.W.2d 146, 148 (1969) (“An appraiser, in viewing the lands after a partial
taking, must consider the remainder as if the improvements were in place according to the
plans and specifications.”).
Losing sight of the time limits of that comparison—Condemnation Day versus
Condemnation Eve, if you will—is how this case left the rails. On Condemnation Day, this
was still a big dirt lot.
The Lewises rooted their $8 million severance-damages claim in testimony from their
appraiser, Diana Thompson. The supporting rationale seems to require freedom to take the
best of both conflicting sides of the issues. At least Thompson did that in her deposition,
which reads like the transcript of a shell game.4
For example, describing access before the taking, Thompson treated the dirt lot that
became Tract 1 as offering, like overflow parking at the fair, limitless options to drive from
Dave Ward to the rest of the Lewises’s holdings. The Lewises “had driveways down here on
Dave Ward that [they] could drive across to get to it.” They could do that because they “had
The deposition transcript was attached to the Commission’s renewed motion in limine to
4
exclude evidence of roadbuilding costs.
18
not developed it yet.” Okay, agreed. She said they could also use Enterprise, which was then
a gravel road, to access both tracts and their northern holdings. See this postcondemnation
pre-road photo:
In fact, Cody Lewis said at deposition that before the condemnation, Enterprise was the only
way to access their northern holdings from Dave Ward.
In Thompson’s Condemnation Eve analysis of what access the Lewises had lost to
condemnation, the right to drive from dirt driveways across a dirt lot was access good enough
to lose.
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Not so on the Condemnation Day side. After condemnation, crossing the same dirt
lot from the remaining driveways—now paved—would no longer do. “That’s not the
maximum use of his land[,]” she said. On Condemnation Day, the Lewises could still use
Enterprise the same way they had on Condemnation Eve. But that would no longer do
either. They could use it, but “not commercially,” she said. They “could privately, because
that was a private road.” Of course, at the time there was still no commerce here to do. But
the Lewises were ready to change that.
Their bookkeeper, Audie Alumbaugh, testified that when they approached the City
later about getting a road built, a city employee said the Lewises would have to build it
themselves because “the City doesn’t build roads, they maintain roads.” The Lewises wanted
the blue road in the diagram above. But the City told them they “couldn’t build a road to
nowhere. So it was all or none at that point.” That testimony is hard to swallow. Why?
Because the road plan the City itself drew up for the Lewises afterward includes two roads to
nowhere—and a roundabout between:
20
I digress.
Why did the City require this? “They just did,” according to Bill Lewis. “You’d have
to ask them,” said Alumbaugh. Sounds like a taking all right—by the City. Sometimes it
must pay for its own roads, it seems. At Thompson’s deposition, she confused two road
names. She explained her confusion: “I’m doing another appraisal, I’m sorry, for the City
of Conway on Enterprise.” At trial, she testified the City considered Enterprise a private
road “not to be used for commercial development.” How did she know? Because she had
“worked on 18 of the roundabouts for the City of Conway.”
But Alumbaugh testified Enterprise was a dedicated road, not a private road. A deed
at page 386 of the record confirms that. The Lewises’ predecessors deeded it to the City in
1990—a 60-by-2100-foot strip—“as and for use as a public thoroughfare.”
Now pull that thread and pretend they had not done so. This condemnation left two
remainder tracts instead of one because the right-of-way to Enterprise separated the affected
remainder of the Lewises’ property. If their predecessors had not granted Enterprise to the
City, a condemnation for the same highway plan would have left one remainder tract.
By any measure, the paved outlet from the Dave Ward roundabout into one
remainder tract would be direct access to Dave Ward. Functionally it is anyway. If it was an
outlet into raw dirt, so what? So were the driveways the Commission condemned. The
paved outlet would give the Lewises the same kind of access on Condemnation Day they’d
had on Condemnation Eve. Indeed, better access at that spot. Nor would that be their only
21
access to Dave Ward on one remainder tract: the Lewises retained access, remember, at the
orange highlight below Tract 2.
The tract would still be undeveloped, of course. And driving across raw dirt would
still not be “the maximum use” of the land in Thompson’s formulation. But could there be
any pretense that “just compensation” required the Commission to subsidize $8 million of
development roads through it? I submit not. Where would that have left the Lewises?
Whatever road they built, Thompson testified, “ha[d] to be like all of the other roads
in that area.” We know the City would not be paying for it. And there was no evidence the
City’s road specifications would have been more lenient, or the roadbuilding cheaper, if the
Lewises could have built a road somewhere else. Thompson seemed to concede in her
deposition that, to the contrary, the Lewises would have had to build a road along this route
whenever they developed the property.
Now put Enterprise back. On Condemnation Day, did the Lewises have worse access
to these two tracts than to the hypothetical one? No. The paved outlet met a gravel road
running through their property, not raw dirt. Did they show it cost more to improve
Enterprise than to build a road north from elsewhere on Dave Ward? Again no. In fact, it
almost certainly cost less. How do we know?
The cost of construction was only half the $8 million severance damages the Lewises
asked the jury to consider. Four million was the value they gave seven acres of land they had
to donate to the City for New Amity Road. Enterprise, which already bisected their land,
22
sat on 2.9 acres.5 I concede the Lewises might have preferred that the City build and pay for
a road there. But they could not get the land back either way. Though it may be true that
before the taking the Lewises could have built a road north on a different route, who would
have done so? Every square foot of development road they could fit within the Enterprise
right-of-way saved a square foot of C-3 real estate they could sell instead.
What’s left of their severance-damages theory is a logical fallacy so old it was named
in Latin: post hoc ergo propter hoc, or “after this, therefore because of this.” Because the
condemnation limited the options to connect to Dave Ward, the whole cost to build a road
afterward was the Commission’s fault. Their counsel made this explicit after Thompson
answered yes to the question, “Did [the Lewises] only have to drive a few extra feet to get to
access off of either Enterprise or Amity?”
LEWISES’ COUNSEL: But in order to go that extra [few] feet and just build
the road through there, they had [to] spend $8 million;
is that fair to say?
THOMPSON: Yes.
The majority is right that condemning access along one side of highway frontage is a
compensable taking even if no land is left orphaned on the other side. Ark. State Highway
Comm’n v. Rye, 255 Ark. 223, 499 S.W.2d 624 (1973) (quarter mile of frontage reduced to
two fifty-foot access points). But that does not make the cost of whatever the landowner does
afterward the measure of compensation due. The requirement to pay just condemnation
5
I assume the seven claimed acres do not include the portion of New Amity Road within the 1990 grant; if the record includes a legal description of the New Amity Road donation, I have missed it.
23
“does not stand for the proposition that a landowner is entitled to be unjustly enriched at
the expense of the public purse.” Barker, 326 Ark. at 407, 931 S.W.2d at 141.
The focus of the change-in-value analysis, again, is Condemnation Eve versus
Condemnation Day. Past expenditures on improvements that no longer exist on
Condemnation Day are irrelevant. Ark. State Highway Comm’n v. Byrd, 237 Ark. 905, 908,
377 S.W.2d 165, 167 (1964) (property’s before-taking value “was neither greater nor less
because of the fact that a building had been located thereon for about four years”). So are
expenditures made after condemnation that are not needed to restore some function or
utility that existed then. Barker, supra.
In Barker, there was not much analysis of why evidence of the improvements should
not have been admitted. One answer is timing. The property should have been valued as
of the date of condemnation, but the landowners’ appraiser valued it as of fifteen months
later. 326 Ark. at 407, 931 S.W.2d at 141. In the meantime, the landowner had poured a
$10,000 concrete slab that was incorporated in the appraisal. The Lewises’ road project came
even longer after this condemnation; their first documented expense in the record is dated
January 2017, about seventeen months later.
In Arkansas State Highway Commission v. Speck, the supreme court approved the
admission of testimony about the cost to restore functional access and utilities (like irrigation)
to the severed part of what had been one working farm:
[W]e think it proper for the jury, after hearing the evidence, to determine the
type of improvement that will more nearly restore the property to its original status.
Let it be borne in mind that these prospective expenditures are not the
24
measure of damages, but are only an aid in determining the difference in the
before and after value of the property.
230 Ark. 712, 720, 324 S.W.2d 796, 800 (1959) (emphasis added). I hope the pivotal point
has been made clearly enough. The Lewises did not build these roads to restore the
property’s original status; the condemnation hadn’t changed it. They built them to improve
dozens of acres of dirt they had waited longer to develop commercially than any similar
landowner in the area.
Causation and common sense are part of this analysis. Ark. State Highway Comm’n v.
McNeill, 238 Ark. 244, 381 S.W.2d 425 (1964). That is why the attempt to bill the
Commission with the cost of this road should be rejected. The Commission argued that the
Lewises’ development plans, not the taking of access rights, caused them to improve the road
between these tracts. And it was right.
Roadbuilding expenses the Lewises would have borne before condemnation are not
the Commission’s responsibility just because the roads were built afterward. 6 Particularly
when the roads extend far past the boundaries of the affected tracts, and the demand to
build them all was made after condemnation by a different governmental body. That
demand might be a separate taking, after all. Calabria v. City of Fayetteville, 277 Ark. 489,
644 S.W.2d 249 (1982). On this record, the Lewises could either fight the City or roll over.
What they could not do is roll over for the City and stick the Commission with the bill.
6
Had the Lewises stopped at introducing evidence of the cost of the blue road on the diagram—$749,081, according to Thompson’s appraisal report—I would affirm.
25
A regulation or ordinance imposed by one government body can affect the damage a
landowner suffers in a condemnation by a different body. In Barnes v. Arkansas State Highway
Commission, 10 Ark. App. 375, 664 S.W.2d 884 (1984), we held that evidence that city
ordinances required a developer of land abutting a controlled-access highway to build and
dedicate a service road was properly admitted in a condemnation to build one. Our supreme
court had since held in Calabria, supra, that the same ordinances effected an unconstitutional
taking. But what happened after the taking was irrelevant: “The issue was whether the fact
that [the ordinances] existed, unchallenged and presumptively valid at the time of taking was
a factor that an ordinary prudent person would consider before purchasing the property.”
Barnes, 10 Ark. App. at 378, 664 S.W.2d at 886.
I cannot ignore the incentives created by treating a condemnation by one government
body as an open tab for whatever demands others decide to make later. I would hold that
any relevance of the roadbuilding costs here was conditional on a finding under Arkansas
Rule of Evidence 104(b) that a buyer could have determined from the published regulations
and ordinances in place on Condemnation Eve that this loss of access to Dave Ward would
change the cost to develop commercial access through the affected tracts. Evidence of the
marginal cost would then be relevant.7
7
The Commission did not argue that any part of the roadbuilding costs was even conditionally relevant. I would give it half a loaf because, as in Barnes, supra, the legal condition of the property at the time of condemnation can affect the change in value that results.
26
That would be in line with Barnes and our supreme court’s approach in Arkansas State
Highway Commission v. Hawkins, where it approved allowing a landowner who had begun
developing a subdivision before condemnation “to show the extra [or marginal] cost involved
in installing the sewer and water after the taking.” 246 Ark. 55, 64, 437 S.W.2d 218, 223
(1969) (emphasis added). That marginal cost “would classify as special damages not suffered
by the public in general, for Mr. Hawkins was obligated under the subdivision regulations of
the City of Morrilton to install the utilities before the different parcels could be put to a
residential use.” Id..
Here, the Lewises relied on what the City “just did” after the taking, not on what its
ordinances required then. This let them ask the jury to “consider the fact that the City of
Conway is going to gig them for $8 million to use any of the property”—in the Condemnation
Day value of the remainder—without subtracting from the Condemnation Eve value what
the City might have gigged them for anyway. Because I cannot conclude on this record that
those costs were a result of the condemnation, I would reverse the circuit court’s decision to
admit evidence of the roadbuilding costs and remand for a new trial.
*
Though reversing as we should would moot the interest-rate and fee issues (at least
for now), I note my concern about the incredible delay getting this nine-year case to a oneday trial. The condemnation was in August 2015. The matter was originally set for trial 8
May 2018. But the Lewises did not provide Thompson’s appraisals until March 22. Those
revealed that the parties’ valuations were about $3.5 million apart. Naturally, Thompson
27
had not been deposed yet either. The Commission represented that she said the Lewises’
counsel had told her not to do the appraisal until after the job was complete. The circuit
court quite appropriately granted a continuance. The order promised the case would be
reset in 2018.
But nothing happened for five years. Finally, in June 2023 the court entered a notice
that it would dismiss for want of prosecution under Arkansas Rule of Civil Procedure 41
unless good cause was shown. The Commission responded that the parties were waiting on
a trial date. When the case was finally tried in June 2024, the jury’s award retroactively
triggered nine years of prejudgment interest at 8 percent. Incredible. If my math is correct,
the accrued interest alone exceeds the unconscionable excess of “just compensation” in this
case. I would reverse and remand for a new trial.
*
Finally, a practice reminder. Much of this record consists of witnesses pointing to
unidentified parts of unidentified exhibits. Here are some ways to avoid that in a deposition,
for example:
ATTORNEY: Mr. Witness, we have an easel here with an enlargement of
an aerial photo the parties have stipulated will be admitted
at trial as Exhibit B-7. Do you see that?
WITNESS: Yes.
ATTORNEY: Do you recognize the area depicted in this photo?
WITNESS: Yes. This photo accurately depicts the layout of my property
as it appeared from the air on the date reflected in the label
here.
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ATTORNEY: I’m handing you a photocopy of an aerial photo. Could you
please compare it with Exhibit B-7 and tell me whether they
appear to be the same?
WITNESS: Yes, they’re the same.
ATTORNEY: Great. I will mark the copy Exhibit 1. Just in case, I also
have here about 500 more identical copies. Agreed?
WITNESS: Do I need to count the copies? [Laughter.]
ATTORNEY: Yes! JK. Let’s move on. Now, you testified earlier that on
the date shown in the label of this exhibit, your driveway
intersected with Mister Witness Road. I’m handing you
what I just marked as Exhibit 1. What color Sharpie do you
like best?
WITNESS: Black.
ATTORNEY: Please take the black Sharpie and mark a D on Exhibit 1
where your driveway intersected with Mister Witness Road.
WITNESS: Here.
ATTORNEY: Super. Now please write your initials next to the place you
marked.
WITNESS: Here.
ATTORNEY: Understood. Mr. Court Reporter, I’ll make this Exhibit 1
to the deposition.
The duplicate copies, of course, allow counsel to repeat this process for other features of the
property. That way, if testimony on some point proves unnecessary—or the court orders it
excluded—the parties do not confuse the jury with unnecessary marks or risk losing the
exhibit altogether.
When the court reporter supplies the transcript, the exhibits (or copies of them) will
be included. Ark. R. Civ. P. 30(f)(1). These certified transcripts and copies can be attached
29
to motion papers as proof of where the features are. The exhibits can be introduced at trial
through the testifying deponent without requiring him to mark them up in open court.
Enlargements can be prepared in advance. If everyone agreed where the relevant things were
and counsel wanted to earn the gratitude of the jury and the appellate courts, the parties
could even stipulate to a legible summary exhibit with premarked labels for the witnesses to
refer to.
But anything would be better than “Here. (Indicating.).”
I respectfully dissent.
Angela R. Dodson, Arkansas Department of Transportation, for appellant.
Lawrence W. Jackson, for appellees.
30