Warren v. Waterville Urban Renewal Authority

• Citation: 235 A.2d 295
• Parties: Rose WARREN v. WATERVILLE URBAN RENEWAL AUTHORITY.
• Decision Date: 21 November 1967
• Court: Supreme Judicial Court of Maine (US)

Page 295

235 A.2d 295

Rose WARREN v. WATERVILLE URBAN RENEWAL AUTHORITY.

Supreme Judicial Court of Maine.

Nov. 21, 1967.

Jerome G. Daviau, Waterville, for appellant.

Lester T. Jolovitz, and William Niehoff, Waterville, for appellee.

Before WILLIAMSON, C. J., and WEBBER, TAPLEY, MARDEN, DUFRESNE and WEATHERBEE, JJ.

DUFRESNE, Justice.

This is an eminent domain case. By reason of a change of venue under 14 M.R.S.A. § 508, an Androscoggin County jury awarded the plaintiff sixty thousand ($60,000) dollars as just compensation for the taking by the Waterville Urban Renewal Authority, defendant, of plaintiff's real estate situated on Temple Court, so-called, in the City of Waterville. Constitution of Maine, Art. I, § 21. Dissatisfied with the jury award, Mrs. Warren appeals on grounds which may be consolidated as follows: (1) the trial court erred in denying plaintiff's motion to strike the value opinion of the defendant's sole expert witness and in instructing the jury to consider it in their deliberations, for the reason 'that the basic hearsay facts upon which he based his opinion was (sic) not found in the evidence and therefore that his opinion was without supporting evidence'; (2) such error deprived the plaintiff of her constitutional rights of due process and the resulting jury award failed to come up to the just compensation required under both the Constitutions of the State of Maine and of the United States. We disagree on both counts.

In order to resolve the first issue raised on this appeal, we must review to some extent the conduct of the trial below. Heyward Sawyer, the defendant's expert witness, testified in direct examination, in explanation of the methods followed by him in arriving at his land and building values, that he used factual information gleaned from records in the assessors' office in Waterville and at the County Registry of Deeds office in Augusta; that he got his leads as to comparable properties from brokers in the community; that he made personal inspection of the reference comparables; that he obtained the sale price, the date of sale, the dimensions of the lot and the special circumstances of the sale, if any, from either the buyer or the seller, the broker or banker who participated in the deal; that he secured the gross rental charge from the owner or tenant.

In connection with his land value, he gave the details on 5 separate sales of properties in Waterville which he identified and asserted as comparable to the Warren land. From the data which he had procured as above indicated and from his examination of the lands taken together with his personal inspection of the lands used for value analyses, he testified that in his expert judgment the sum of $25 per front foot represented the fair market value of the Warren land at the time of taking, with adjustments made for depth of the various Warren lots.

This witness further added that he reached his fair market value of the Warren buildings by using several recognized and sound approaches to market values, such as the reproduction cost less depreciation, sales of comparable properties, and capitalization of income obtained by use of a gross rent multiplier. He explained to the jury the intricate workings of these several scientific devices available for value ascertainment and indicated that in estimating the fair market value of the Warren buildings, he used all three test-formulas as an assist in his ultimate determination as well as a proof-check on the accuracy of the results reached in each of the tests. Counsel for the plaintiff-owner raised no objections to the introduction on direct examination of the details of the selected sales of comparable properties testified to by the defendant's expert, including the sales price, rental charge and other data. He cross-examined fully thereon and had the witness admit that if his sources of information as to the rental charges and sales prices of the comparable properties were in error, then he would be in error, his estimates would vary and his opinion of value would not be accurate. Defendant's expert used 5 sales of comparable properties in fixing the fair market value of the Warren buildings. His ultimate opinion of the fair market value of the Warren property before the taking was, $6,350 for the land and $41,450 for the building, on an aggregate value of $47,800.

It is true that the opinion of an expert as to value should be stricken and not be considered as evidence where it is demonstrated during his testimony that his opinion rests wholly or chiefly upon reasons or matters which are legally incompetent or upon principles which are unsound. Boston Gas Co. v. Assessors of Boston, 1956, 334 Mass. 549, 137 N.E.2d 462, at page 480; San Diego Land & Town Co. v. Neale, 1891, 88 Cal. 50, 25 P. 977, 11 L.R.A. 604; Commonwealth, Department of Highways v. Darch, 1964, Ky., 374 S.W.2d 490. If it appears that the witness has no reasonable basis whatever for his opinion, then his testimony should be stricken. Arkansas State Highway Commission v. Russell, 1966, 240 Ark. 21, 398 S.W.2d 201. The testimony of a professional appraiser properly to be accepted must be based upon sound principles. Farrington v. Maine State Highway Commission, 1963, 159 Me. 95, at page 96, 188 A.2d 483.

In the instant case, the expert opinion was aided by factual data, such as the sales prices and rental charges of comparable properties, which the witness obtained from hearsay sources. He did not have personal knowledge of these details. His qualifications however were not in issue and he was permitted to testify to such facts without any objection from the plaintiff either on the ground that such evidence was hearsay or for any other reason. As a matter of fact, counsel for the plaintiff during his direct examination of plaintiff's own expert witness countered the defendant's objections that the evidence sought to be introduced was hearsay, with the argument to the Court that he thought it well-accepted law that an expert expresses his opinion first and then explains the basis for it. And the Court siding with the plaintiff on this issue permitted plaintiff's expert to use such hearsay information and express his opinion of value to the jury, even though he had based the same on comparables the factual details of which he also had obtained from hearsay sources. Furthermore, at an early stage in the plaintiff's direct examination of her own expert witness, defendant's counsel repeatedly objected to certain evidence on the ground that the expert's sources of information were hearsay. In order to speed up the trial and resolve the proper procedural course to be taken, the trial judge conferred with counsel in chambers in the absence of the jury on this very issue. He laid down the ground rules and policy to be followed concerning expert testimony. He indicated that he was going to be liberal in allowing expert witnesses to testify and that all the plaintiff needed to do was to produce experts that in the opinion of the Court possessed sufficient qualifications to express an opinion and that such expert opinion would go to the jury for them to pass upon the weight thereof. The trial judge stated that the same liberality in receiving expert testimony would be extended to the defendant's expert witnesses. Upon inquiry by the Court as to whether counsel took issue with the Court's intended procedural conduct of the trial respecting the reception of expert testimony, no objections were raised and both counsel manifested acquiescence therein.

Thus, the factual information, such as the sales prices or the rental charges of the comparable properties used by both expert witnesses, even though hearsay, was in the case by consent of both parties. As stated in Goldthwaite v. Sheraton Restaurant et al., 1958, 154 Me. 214, at page 221, 145 A.2d 362, at page 366, 79 A.L.R.2d 881, '(I)t has frequently been held by our court that when evidence is admitted without objection and no motion is made to strike it from the record, it becomes what has been designated as 'consent evidence'.' Moore v. Protection Ins. Co., 29 Me. 97; Brown v. Moran, 42 Me. 44; Tomlinson v. Clement Bros., 130 Me. 189, 154 A. 355; Watkins Co. v. Brown and McPherson, 134 Me. 473, 188 A. 212.

Plaintiff, after acceding to the announced liberal approach to be used by the Court in the reception of expert testimony and receiving the benefits thereof whereby her own expert witness was permitted to express his ultimate opinion of value to the jury, notwithstanding that his detailed information respecting comparable properties was obtained through hearsay sources, cannot successfully object to the admissibility of the condemnor's expert's ultimate opinion of value secured in similar fashion. The plaintiff had gotten her estimates of fair market value before the jury on an agreed procedure acted upon by the trial court, even though her expert had tapped sources of information of a hearsay nature and she had allowed similar testimony of the condemnor's expert witness to reach the jury without objection; to permit her thereafter to change her position, adopt a different tack and seek to remove her adversary's expert's opinion of value in the case from consideration by the jury, would not only be unfair to the trial court but manifestly unjust to the opposing litigant. She had agreed to a settled course of trial procedure and she should not be relieved therefrom to the prejudice of the other party, except for compelling reasons. See Portland Flying Service, Inc. v. Smith, Me., 1967, 227 A.2d 446. A party cannot claim aggrievement from trial conduct which he actively seconded or tacitly tolerated. See Thompson v. Perkins, 1869, 57 Me. 290.

Our Court in Goldthwaite has clarified the rule respecting the probative value of 'consent evidence.' Such hearsay evidence 'may properly be considered and given its natural and logical probative effect. The fact finder...