93 Conn. App. 799 | Conn. App. Ct. | 2006
Opinion
The defendant Cromwell Development Associates (Cromwell Associates) and certain of its defendant partners
The following facts and procedural history are relevant to the defendants’ appeal and the plaintiffs cross appeal.
The defendants defaulted on the note in 1982. Although some payments continued, no payments have been made since December 25, 1987.
On November 14,1995, the plaintiff, pursuant to General Statutes § 49-14, filed a timely motion for deficiency judgment. The court denied the plaintiffs motion on the ground that the postdefault interest rate on the note was usurious under General Statutes § 37-4. After the plaintiff appealed, we reversed the court’s judgment and ordered a new deficiency hearing. Our decision was affirmed by our Supreme Court on March 24,1998, and the case was remanded for a hearing.
Despite the remand order, a substantial delay in the proceedings ensued and, consequently, the deficiency hearing did not begin until April 8, 2004.
In contrast, the defendants’ appraiser, Gary Olcha, used the assemblage doctrine of valuation and concluded that the fair market value of the two parcels totaled $400,000. Under the assemblage doctrine, Olcha considered the adjacent thirty-one acre parcel and its potential for consolidation with the West Street and Shunpike Road parcels. This consolidation, in Olcha’s view, would create a thirty-four acre parcel with great development potential and, consequently, a much higher fair market value.
In its January 7, 2005 memorandum of decision, the court rendered judgment in favor of the plaintiff. The court agreed with the defendants that assemblage was the proper method of valuation. The court concluded that the “defendants presented a compelling argument to establish that the doctrine of assemblage is a reasonable and realistic way to determine what the true fair market value of the subject property was at the time of vesting.”
The dispositive issue is the plaintiffs claim that it was improper for the court to treat the two subject parcels as an assemblage with the thirty-one acre parcel because no evidence was presented to suggest that it was reasonably probable that the three parcels would be combined. We agree and therefore reverse the judgment and remand the case for a new deficiency hearing.
“The doctrine of assemblage applies when the highest and best use of separate parcels involves their integrated use with lands of another. Pursuant to this doctrine, such prospective use may be properly considered in fixing the value of the property if the joinder of the parcels is reasonably practicable. If applicable, this
“Our Supreme Court . . . accepted the applicability of the assemblage doctrine for valuation purposes in the context of a condemnation case. See Commissioner of Transportation v. Towpath Associates, 255 Conn. 529, 767 A.2d 1169 (2001). In Towpath Associates . . . it appears that the concept of assemblage was implicit in the trial court’s analysis, rather than explicitly applied. . . . According to the Supreme Court, [t]he fact that the most profitable use of a parcel can be made only in combination with other lands does not necessarily exclude that use from consideration if the possibility of combination is reasonably sufficient to affect market value. . . . There must be a reasonable [probability] that the owner could use this tract together with the other [parcels for such] purposes or that another could acquire all lands or easements necessary for that use. . . .
“[I]f a prospective, integrated use is the highest and best use of the land, can be achieved only through combination with other parcels of land, and combination of the parcels is reasonably probable, then evidence concerning assemblage, and, ultimately, a finding that the land is specially adaptable for that highest and best use, may be appropriate.” (Citations omitted; internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App. 114, 120-21, 807 A.2d 519 (2002), cert. granted on other grounds, 262 Conn. 923, 812 A.2d 864 (2002) (appeal withdrawn October 21, 2003). “If the combination of parcels is reasonably probable and the prospective, integrated use is not speculative or remote,
To determine whether assemblage was the proper valuation approach in the present case, we must first consider whether there was evidence that the combination of the three parcels was reasonably probable. “[Although the possibility of a change . . . always exists in some degree, it [is often] difficult to prove that such a possibility has become a reasonable probability. . . . Because of uncertainties necessarily attending the determination of the probability of the happening of such an event in the future, claims and evidence regarding the probability must be scrutinized with care and examined with caution.” (Citation omitted; internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, supra, 255 Conn. 551; see Route 188, LLC v. Middlebury, 93 Conn. App. 120, 126-27, 887 A.2d 958 (2006); Norwich v. Styx Investors in Norwich, LLC, 92 Conn. App. 801, 807-808, 887 A.2d 910 (2005).
The court heard evidence that until October, 1995, Cromwell Associates marketed the subject parcels for sale together with the thirty-one acre parcel. Evidence that the parties were willing to combine the subject parcels with the thirty-one acre parcel at some prior
Although the plaintiff has been the exclusive owner of the subject parcels
It is axiomatic that “[wjishful thinking, optimistic conjecture, speculation, rumor and unfounded prognostications do not furnish a proper basis for a finding that a litigant has proved the reasonable probability of a future [event].” (Internal quotation marks omitted.) Commissioner of Transportation v. Towpath Associates, supra, 255 Conn. 554. There is no evidence, in the record before us, to support the finding that it was reasonably probable that the West Street and Shunpike Road parcels would have been combined with the thirty-one acre parcel. The court’s use of the assemblage doctrine, therefore, was clearly erroneous. Accordingly, we
The judgment is reversed and the case is remanded for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
Cromwell Associates is a Connecticut partnership. Its general partners were also named as defendants. Eight of the defendant partners, Steven Chemock, Jr., John R. Chemock, Philip'Gaynes, Jane E. Miller, Elliot Miller, Janice Miller, Maynard A. Selmon and Dram Realty, have joined the appeal. We refer in this opinion to Cromwell Associates and the partners who have joined the appeal as the defendants.
This case has an extensive procedural and factual history, which is set forth in Ferrigno v. Cromwell Development Associates, 44 Conn. App. 439, 689 A.2d 1150 (1997), aff'd, 244 Conn. 189, 708 A.2d 1371 (1998).
Payments by the defendant partners ceased some time prior to March 17, 1987. The plaintiff submitted payments to himself for his share until December 25, 1987.
At trial, the defendant Steven Chemock, Jr., testified as follows: “[The plaintiff] wouldn’t communicate with [Cromwell Associates]. He seemed very distraught during this period of time. He wouldn’t answer any of the phone calls. He wouldn’t answer any letters. . . . [He] made [marketing the properties] very difficult. Every time [Cromwell Associates] had a broker, a developer or anyone who came to us with an interest to procure the property, we had to tell them in all honesty we had a disgruntled partner and that seemed to scare them away.”
The court took judicial notice of the reasons for the delay, which included a mistrial, as well as numerous scheduling conflicts and continuances.
The Shunpike Road parcel was valued at 580,000, and the West Street parcel was valued at $10,000.
Olcha testified that he did not know the parties involved in the case and that he did not value the parcels separately because he believed it would not be appropriate.
In relying on an assemblage theory of valuation, the court, explained that “[tjhere was evidence and testimony offered to establish that the two parcels were purchased and marketed for sale as part of an assemblage with the thirty-one acre piece. The three parcels share the same zoning designation and, in fact, one of the two subject parcels (West Street), standing alone, does not meet the existing minimum lot size requirement of two acres for the zone where it is situated.
*804 “The thirty-one acre parcel is owned by partners who are also partners of [Cromwell Associates], The two subject parcels were purchased by the partners, who owned the thirty-one acre parcel, because of their location relative to the thirty-one acre parcel. There was testimony by a witness for the plaintiff that the best thing that could be done with the West Street property, which has no access to a public highway, is to assemble it with the thirty-one acre parcel.
“The Cromwell tax assessor has valued the three parcels based upon the assemblage of the three parcels together. . . . There was no evidence that the said assessment was ever appealed by the plaintiff or the defendants.”
On cross appeal, the plaintiff claims that the $332,000 figure was a miscalculation. Although our decision does not require us to decide that claim, we note that it does appear from the memorandum of decision that the court miscalculated when totaling the fair market value of the West Street and Shunpike Road properties. The court adopted the Cromwell assessor office’s appraisals of $112,000 for the West Street parcel and $210,000 for the Shunpike Road parcel, and then incorrectly added those figures to total $332,000. The correct total is $322,000.
On appeal, the defendants claim that the court improperly concluded that the evidence did not support the special defense of laches. An adequate record for review of that claim does not exist.
We first note the standard of review. “The defense of laches, if proven, bars a plaintiff from seeking equitable relief in a case in which there has been an inexcusable delay that has prejudiced the defendant. . . . First,
In the present case, although the court, took judicial notice of the reasons for the delay, the court made no findings of fact with respect to the defendants’ claim of laches. Rather, the court stated: “Delays caused by appeal are a practical consequence in lawsuits. This court does not intend to apportion blame or responsibility to either the plaintiff or the defendants for the time it has taken to reach this point in a case originally returnable in 1988. The defendants’ request in their posthearing reply brief that the court recognize their defense of laches is denied.”
Because the court summarily denied the claim of laches without finding any subordinate facts, we conclude that an adequate record for review of that claim does not exist.
Furthermore, the court in Towpath Associates suggested that in order for the combination of parcels to be reasonably probable, the combination must take place in the reasonably near future: “From the record before us in these cases, we cannot conclude that the trial court properly determined that it was reasonably probable that someone other than the department would have assembled these properties in the near future to construct a bridge thereon. The trial court in this case failed to address the reasonable probability that, but for the taking of the defendants’ properties, a prudent investor would have obtained, in the reasonably near future, both parcels in order to pursue a bridge project.” (Emphasis added.) Commissioner of Transportation v. Towpath Associates, supra, 255 Conn. 551-52.
Although assemblage analysis is most commonly applied in the area of eminent domain, we note that it also has been employed to value property in other contexts. See Franc v. Bethel Holding Co., supra, 73 Conn. App. 126.
“Although common ownership of the parcels sought to be integrated would be a factor weighing in favor of a finding that assemblage analysis is appropriate, its presence or absence is not necessarily dispositive of the inquiry.” Franc v. Bethel Holding Co., supra, 73 Conn. App. 123.
In light of the foregoing, we need not reach the defendants’ claim that the court miscalculated the deficiency judgment.