DEPARTMENT OF TRANSPORTATION v. CHERIHA, LLC, ET AL.
(AC 36041)
Connecticut Appellate Court
Argued October 28, 2014—officially released January 27, 2015
Sheldon, Keller and Prescott, Js.
(Appeal from Superior Court, judicial district of New Britain, Hon. Arnold W. Aronson, judge trial referee.)
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Michael J. Dyer, with whom was Ryan P. Barry, for the appellant (named defendant).
Eileen Meskill, assistant attorney general, with whom, on the brief, was George Jepsen, attorney general, for the appellee (plaintiff).
Opinion
SHELDON, J. The principal issue in this appeal is whether the trial court erred in reassessing the amount of damages to which the defendant Cheriha, LLC,1 was entitled as just compensation for the taking of its 0.44 acre parcel of commercial property in New Britain, which the plaintiff, the Department of Transportation,2 had condemned for the purpose of reconstructing an adjacent roadway. The plaintiff initially assessed damages for the taking in the amount of $125,000. The defendant thereafter appealed to the Superior Court, alleging that the plaintiff’s assessment was inadequate. After a hearing on the defendant’s claim, Hon. Arnold W. Aronson, judge trial referee, awarded the defendant
The following facts and procedural history are relevant to the disposition of this appeal. The subject property is a triangle shaped parcel of land, approximately 0.44 acres in total area, located in the northeastern part of the downtown district of New Britain at the intersection of Beaver Street and Washington Street. The property is zoned B-3, Secondary Business District, which permits residential and commercial use.3 On the date of the taking, improvements on the property consisted of a free-standing masonry building, approximately 2032 square feet in size, that included an attached, three bay automotive repair garage with supporting offices and a sales area. Prior to the taking, the property was occupied by the defendant’s business, Cars R Us Used Cars Sales & Service.
On July 14, 2011, the plaintiff filed in the Superior Court a notice of condemnation and an assessment of damages for the taking in the amount of $125,000. On January 26, 2012, under the same docket number, the defendant filed an application for a reassessment of damages pursuant to
Using a sales comparison approach, the defendant’s first appraiser, Kerin, determined that the fair market value of the property at the time of the taking was $320,000. Kerin based his determination on recent sales of four properties in New Britain that he considered comparable to the subject property. The defendant’s second appraiser, Arotsky, also using a sales comparison approach, concluded that the fair market value of the property was $340,000. Arotsky based his conclusion on the recent sales of four other local properties that he considered comparable to the subject property, although no such property was in New Britain. Cheriha testified as to his purchase of the property in 1998, his subsequent use of the property for his business, the defendant LLC, and his personal opinion as to the fair market value of the property. He opined that the fair market value of the property at the time of its taking was approximately $850,000.
The plaintiff’s appraiser, LoMonte, also employed a sales comparison approach to assess the value of the property. Using three sales of properties in New Britain that he considered to be comparable to the subject property, LoMonte concluded that the fair market value of the property at the time of its taking was approximately $125,000.
In his memorandum of decision dated August 7, 2013, Judge Aronson found that two of the properties used as comparables by the testifying experts were most similar to the subject property. The first such property, on which Kerin had relied, was a 0.39 acre parcel with a three bay
We begin by setting forth certain relevant legal principles. ‘‘The owner of land taken by condemnation is entitled to be paid just compensation.
I
The defendant first claims that the court erred in precluding its witness, Ahmed, from testifying personally to a letter of intent to purchase the property for $850,000, which he had prepared on or about February 3, 2010, approximately
dant acknowledges that Ahmed’s letter of intent was subsequently admitted into evidence as a partial basis for Cheriha’s testimony on fair market value. It claims, however, that the evidence, so presented, carried less weight than it would have had it been presented personally by Ahmed. In addition, the defendant argues that Ahmed’s testimony as to his own intended use of the property in 2010, which was ‘‘different than that which [the defendant’s] experts considered to be [its] highest and best use,’’ could have assisted the trial court in ‘‘determining how the property could be used most advantageously.’’ We are not persuaded.
We review the defendant’s claim in accordance with certain well settled legal principles. The court has broad discretion in determining what evidence is properly allowed in an eminent domain proceeding. See West Haven v. Norback, 263 Conn. 155, 172, 819 A.2d 235 (2003). ‘‘[A] trial court may exercise its discretion with regard to evidentiary rulings, and the trial court’s rulings will not be disturbed on appellate review absent abuse of discretion. . . . In our review of these discretionary determinations, we make every reasonable presumption in favor of upholding the trial court’s ruling. . . . Evidentiary rulings will be overturned on appeal only where there was an abuse of discretion and a showing by the [appellant] of substantial prejudice or injustice.’’ (Internal quotation marks omitted.) Cote v. Machabee, 87 Conn. App. 627, 630, 866 A.2d 639 (2005). A party seeking a new trial because of an improper evidentiary ruling has ‘‘the burden of demonstrating that the error was harmful. . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result.’’ (Internal quotation marks omitted.) Washington v. Christie, 58 Conn. App. 96, 100, 752 A.2d 1127, cert. denied, 254 Conn. 906, 755 A.2d 884 (2000).
Evidence in eminent domain proceedings consists primarily of the opinions of experts who are well informed on the subject of property valuation. ‘‘The role of an expert witness is to furnish the trier with special guidance drawn from his or her particular training, knowledge or experience.’’ DiBella v. Widlitz, 207 Conn. 194, 202, 541 A.2d 91 (1988) (expertise in property appraisal generally is predicated on specialized training coupled with study of subject property to determine its value). A property owner is also allowed to testify to the value of his own property on the theory that he has unique knowledge with respect to its value by virtue of his ownership. See Misisco v. La Maita, 150 Conn. 680, 684, 192 A.2d 891 (1963). Property ownership usually entails knowledge of the original price paid for
In this case, the defendant asserts that Ahmed’s proffered testimony should have been admitted because it related solely to the fact of Ahmed’s intended purchase of the property for $850,000. It further argues that such testimony should not have been excluded as an inadmissible opinion of a nonexpert nonowner as to the property’s value.
The defendant’s argument is belied by the record in this case, which discloses that the defendant sought to introduce Ahmed’s testimony regarding his preliminary offer as expressed in the letter of intent on the basis that it was ‘‘indicative of the fair market value’’ of the property. In addition, in its offer of proof, the defendant suggested that Ahmed should be permitted to testify because of his extensive background in the buying and selling of commercial properties.5 In light of this, it is clear that although the defendant identified Ahmed as a fact witness, it predicated the usefulness of his testimony on his asserted ability to assess the value of the property as an expert. Accordingly, it was not an abuse of discretion for the court to preclude his testimony on the basis that he lacked the expert qualifications to do so.
We also reject the defendant’s argument that Ahmed’s ability to testify to facts establishing the highest and best use of the property would have assisted the trier of fact in determining the value of the property, and thus that it should have been admitted. There are two problems with the defendant’s assertion. First, as the plaintiff points out, Ahmed’s proposed use of the property, expressed seventeen months prior to the taking, is speculative. The record reveals that there was no firm offer to purchase the property for that amount, let alone an actual agreement between Ahmed and the defendant to purchase the property.6 Second, the highest and best use of a property, again, is a concept that is used by expert appraisers; see United Technologies Corp. v. East Windsor, 262 Conn. 11, 25, 807 A.2d 955 (2002); and Ahmed was never sufficiently shown to have any expertise on that subject.
Moreover, there is no evidence that the court’s ruling impacted the outcome in this case. As indicated previously, the property owner, Cheriha, testified to the letter of intent and Ahmed’s apparent willingness, based upon it, to enter into discussions concerning the possible purchase of the property for $850,000. The letter was admitted into evidence as a full exhibit at that time.
II
Next, the defendant challenges the trial court’s decision to base its reassessment of the fair market value of the property in part on LoMonte’s sales comparison analysis. We disagree.
With these principles in mind, we address the defendant’s claim. The defendant argues that LoMonte’s method of determining the fair market value of the property was inherently flawed because he mistakenly indicated in his appraisal report that the property is located in a T Residential District zone, when in fact the property is located in a B-3 Secondary Business District zone. More particularly, the defendant asserts that ‘‘given the incorrect zoning, [LoMonte] neglected to consider a whole body of comparable sales that would have had higher property values and would have been comparable to the subject property.’’ Thus, he argues, ‘‘the court’s consideration of his sales comparison analysis was clearly erroneous.’’7 The defendant’s argument lacks merit.
At trial, LoMonte acknowledged that he incorrectly identified the zone of the property in his report. LoMonte testified, however, that the error had no impact on his sales comparison analysis because the criteria he used to select comparables was the highest and best use of the property, which he determined was its continued use for automotive related services. Accordingly, LoMonte testified that he selected properties that were commercially zoned and adapted for similar purposes.8
The court adopted the sales comparison approach to assess the value of the property.9 The court selected one property in LoMonte’s appraisal that it deemed comparable to the subject property: an automotive
dant’s expert, Kerin, a three bay automotive repair garage situated on 0.39 acres located in a B-3 Secondary Business District zone that sold for $337,000 in September, 2010. On the basis of these two sales, the court concluded that a fair determination of the market value of the property on the date of the taking was $243,840.
To the extent that the defendant argues that LoMonte’s sales comparison improperly excluded other legally conforming potential uses for B-3 properties and, thus, the court’s reliance on limited aspects of his report somehow tainted the court’s valuation, the defendant stands on weak footing. Here, the court found that the defendant’s own experts, like LoMonte, narrowed the highest and best use of the property to automotive related purposes, thus the defendant’s claim with respect to LoMonte’s allegedly failed methodology is strained at best.10 Moreover, the sales comparables that the court ultimately relied on to reach an opinion as to the fair market value of the property were both commercially zoned and put to similar use for automotive related purposes.
Although LoMonte incorrectly referred to zone T in his report, he identified the existing use of the subject property and found comparable properties based on their use for similar purposes. In so doing, he used a methodology that was similar to that of the defendant’s own experts. ‘‘The [court] was at liberty to accept and give effect to the testimony of . . . the witnesses as he believed to be helpful to him, and to so much of the recognized methods employed by the expert witnesses as a basis for their testimony as he considered most applicable to the situation before him.’’ Moss v. New Haven Redevelopment Agency, supra, 146 Conn. 425. The court credited certain aspects of LoMonte’s testimony that it deemed credible and reliable, weighed the evidence and reached an independent determination as to the property’s value. ‘‘There is nothing to show that in determining the value of the [defendant’s] land the [trial court] misapplied or overlooked, or gave a wrong or improper effect to, any test or consideration, which it was his duty to regard.’’ (Internal quotation marks omitted.) A & M Realty v. Dahms, 217 Conn. 95, 101, 584 A.2d 466 (1991). On the basis of the record before us, we do not find that the court erred in considering LoMonte’s report and reaching its determination as to the value of the property utilizing certain elements of that report.
III
Last, the defendant claims the court erred in its valuation because it did not consider Cheriha’s testimony. With respect to the court’s purported lack of consideration, the defendant points to the absence of any explicit reference to his testimony in its memorandum of decision. We reject the defendant’s claim.
Cheriha testified to his acquisition of the property in 1998 and its subsequent use as a location for his business. In addition, the court, over the plaintiff’s objection, permitted Cheriha to testify to offers that had been made on the property by three different individuals going back as far as 2007, including Ahmed’s aforementioned
‘‘It is true that the trier must consider each factor which may reasonably affect the value of the property, as the [defendant] maintains, but it is not essential that each element be meticulously recited in the memorandum.’’ McDermott v. New Haven Redevelopment Agency, 184 Conn. 444, 446, 440 A.2d 168 (1981). Our rules of practice require only that the court recite its conclusion and the factual basis therefor. See Practice Book § 6-1 (a). The facts found and the conclusions reached must be adequate to support the judgment. Garofalo v. Argraves, 147 Conn. 685, 687, 166 A.2d 158 (1960). Contrary to the defendant’s assertion, there is no requirement that the trial court report in its decision the evidence adduced at trial.
In the present case, the court issued a comprehensive decision describing the basis for its independent determination as to the fair market value of the property. The court was not required to discuss Cheriha’s opinion testimony on that issue in reaching or explaining that independent determination. There is no error.
The judgment is affirmed.
In this opinion the other judges concurred.