Barnini v. Sun Oil Co.

• Decision Date: 30 March 1971
• Citation: 161 Conn. 59,283 A.2d 217
• Parties: John B. BARNINI et al. v. SUN OIL COMPANY.
• Court: Connecticut Supreme Court

Page 217

283 A.2d 217

161 Conn. 59

John B. BARNINI et al. v. SUN OIL COMPANY.

Supreme Court of Connecticut.

March 30, 1971.

Harry Cooper, Hartford, for appellant (defendant).

Leon Podrove, Manchester, for appellees (plaintiffs).

Before ALCORN, C.J., and HOUSE, THIM, RYAN and SHAPIRO, JJ.

SHAPIRO, Associate Justice.

The plaintiffs' land in Bolton was taken by the state highway commissioner for highway purposes by eminent domain under General Statutes § 13a-73(b). The land had upon it a service station which was under lease from the plaintiffs to the defendant with an option to renew. The commissioner assessed damages for the taking, and after an appeal the value of the property was found to be $85,000, for which amount judgment was rendered. No appeal was taken from that judgment. This sum was placed on deposit in the office of the clerk of the Superior Court. A dispute arose between the plaintiffs and the defendant as to the amount due the defendant, under its lease, from this fund. The plaintiffs brought suit in the Superior Court to determine the rights of the parties under General Statutes § 48-21. ¹ The court determined the value of the lease to be $2040.30, and from a judgment rendered thereon the defendant has appealed, assigning as error the court's refusal to find certain facts, various findings and its conclusions, in overruling its claims of law and in rendering judgment as on file.

The defendant has assigned error in the failure of the court to find nineteen paragraphs of its draft finding which it claims are admitted or undisputed. To secure an addition on this ground it is necessary for the defendant to point to some part of the appendix, the pleadings, or an exhibit properly before us, which discloses that the plaintiffs admitted that the fact in question was true or that its truth was conceded to be undisputed. Martin v. Kavanewsky, 157 Conn. 514, 515, 255 A.2d 619; State v. Dukes, 157 Conn. 498, 500, 255 A.2d 614; Maltbie, Conn.App.Proc. § 158. Most of the additions sought are in dispute. The others involve facts which are immaterial to our disposition of the appeal. See Greenwich Contracting Co. v. Bonwit Construction Co., 156 Conn. 123, 128, 239 A.2d 519. The defendant has not established any failure on the part of the trial court to include in its finding any fact which was material and was admitted or undisputed.

The defendant assigns error in the finding by the court of certain of the following facts as being without evidence or in language of doubtful meaning. The court found the following facts: On August 3, 1967, the plaintiffs owned land in Bolton which was condemned on that day by the state highway commissioner. There was a complete taking, and upon appeal, a state referee, acting as a court, made an award of $85,000 and rendered judgment accordingly. The defendant leased the land from the plaintiffs for a term of fifteen years from July 25, 1956, with a five-year renewal option, at a monthly rental of $325. The defendant had the right to sublet and did sublet the premises for the purpose of conducting thereon a gasoline service station. The defendant included in its sublease a right to terminate if all or any part of the leased premises should be condemned or otherwise taken for public or quasi-public use. The monthly rent fairly due the defendant for monthly use of the sublet premises is $350. At the time of the taking, the unexpired portion of the lease was for a period of nine years, and its value is a sum which would not be available to the defendant except as realized annually during that period. The true equivalence of the value of the defendant's lease is maintained by discounting the sums payable in the future at six percent Inwood Factor 6.801.

'It is a well-settled rule that this court will not look beyond the appendices to the briefs in order to find supporting evidence. Practice Book §§ 645, 721. 'It is the duty of both parties to print all material evidence in the appendices to their briefs.' Pass v. Pass, 152 Conn. 508, 511, 208 A.2d 753, 755; Cushing v. Salmon, 148 Conn. 631, 632, 173 A.2d 543; State v. Pundy, 147 Conn. 7, 9, 156 A.2d 193.' Solari v. Seperak, 154 Conn. 179, 183, 224 A.2d 529, 531. Only the defendant filed an appendix to its brief.

An examination of the evidence as summarized there shows the following: Richard Barry, a real estate appraiser, testified on July 22, 1969, at the trial of this case, that the lease had nine years to run which included the five-year option; that a method of arriving at the value of the leasehold interest is the difference between the contract rent as provided in the lease and the economic rent being the fair market value. In determining the market value, the best method he could arrive at was based upon the sublease with Albert Pullo, which Barry used to determine a comparable economic rent. Due to the location of the station, the sublease was a basis on which to arrive at the going economic rent that would be paid in the area. This analysis is a standard appraisal method. He never used gallonage at the station to determine the value of the leasehold, although that is an accepted method of determining the fair market value of the entire property. That does not determine the fair market value to the lessee. The gallonage method of arriving at a value is a method of arriving at the value of the entire fee. To arrive at the value of the lease, the accepted method is the difference between the contract rent and the economic rent. This would amount to an annual difference of $300, which, projected over the nine years and discounted at the Inwood Factor of 6.801 ($300 6.801) results in a value of the lease of $2040.30.

From the foregoing, it is apparent that the finding under attack is fully supported by evidence. Although there was differing testimony by other expert witnesses as to the commencement date of the lease and methods of determining the value of the lease, the...