BERN-SHAW LIMITED PARTNERSHIP v. BALTIMOREMAYOR AND CITY …

• Decision Date: 03 December 2002
• Docket Number: No. 2363 Sept. Term, 2001.,2363 Sept. Term, 2001.
• Citation: 811 A.2d 869,148 Md. App. 313
• Parties: BERN-SHAW LIMITED PARTNERSHIP v. MAYOR AND CITY COUNCIL OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

811 A.2d 869

148 Md. App. 313

BERN-SHAW LIMITED PARTNERSHIP v. MAYOR AND CITY COUNCIL OF BALTIMORE.

No. .

Court of Special Appeals of Maryland.

December 3, 2002.

John C. Murphy (John Cannan on the brief), Baltimore, for appellant.

Andrew G. Bailey, Principal Counsel and Elva E. Tillman, special Solicitor (Thurman W. Zollicoffer, Jr., City Solicitor on the brief), Baltimore, for appellee.

Argued before JAMES R. EYLER, BARBERA, and CHARLES E. MOYLAN, JR. (Ret., specially assigned), JJ. JAMES R. EYLER, Judge.

On October 3, 2000, the Mayor and City Council of Baltimore, appellee, filed a petition for condemnation and a petition for immediate possession and title in the Circuit Court for Baltimore City. The petition was to acquire property known as 324-326 W. Baltimore Street, owned by Bern-Shaw Limited Partnership, appellant. The acquisition was part of the West Side Redevelopment Project in Baltimore City. Appellee deposited $234,000 with the court, the higher of two appraisal values it had obtained.

On December 10-12, 2001, a jury determined the value of the property to be $140,000. Appellant filed a motion for new trial, which was denied. Appellant noted an appeal to this Court.

The property was improved by a five-story building over 100 years old. When taken by appellee, the building was occupied by a photography studio on the first floor, an apartment on the second floor, a storage area on the third floor, and a sewing machine company on the fourth floor. Appellee evicted the tenants and turned off the electricity. At the time of the trial, the building was full of trash, and it was infested with rats. The jurors viewed the first two floors of the building.

Appellee called two expert witnesses to testify as to value. One testified that the value of the property was $225,000, and the other testified that the value was $234,000. Appellant called two expert witnesses to testify. One witness testified that the value was $500,000, and the other testified the value was $513,000. On cross-examination, appellant's representative testified, over objection, that appellant purchased the property in 1982 for a price of $85,000.

During trial, appellee stated that it intended to call a civil engineer as an expert rebuttal witness. Appellant objected that the witness had not been disclosed in a timely manner, but the court ruled that appellant could depose the witness and the witness could then testify.

Questions Presented

The questions, as phrased by appellant, are:

1. Was it error to allow into evidence an 18-year-old sale, unadjusted to account for the increase in real estate prices over 18 years?

2. Was it error to allow the jury to view the interior of the property when, as a result of the City's quick take action, it was filled with trash, the electricity was off, and rats were running around freely inside the property?

3. Was it error to deny a new trial when it was discovered after the trial that, during the view, several members of the jury had been frightened by rats and had fled from the second floor?

4. Was it error to allow the testimony of an expert whose existence and report were only disclosed on the last day of trial and who testified as to the condition of the building with no analysis as to what effect, if any, the condition had on fair market value?

5. Should the jury verdict have been reversed when there was no evidence to support it, by way of expert testimony of the four appraisers or of any comparable sale, other than the unadjusted 18-year-old sale?

6. Was the owner denied a fair trial when the City's expert witness removed photographs, introduced into evidence, from the courtroom, and when the City subsequently discovered where they were but did not notify the court of their location in time for the owner's witness to use them in his testimony?

Discussion

1.

Appellant argues that it was error to allow an eighteen-year-old sale into evidence because it was not relevant to establish the value of the property in this quick-take action. Appellant relies on the Maryland Pattern Jury Instructions (MPJI) and the cases cited therein: State Roads Comm'n v. Adams, 238 Md. 371, 209 A.2d 247 (1965); Taylor v. State Roads Comm'n, 224 Md. 92, 167 A.2d 127 (1961); Lustine v. State Roads Comm'n, 217 Md. 274, 142 A.2d 566 (1958). See Maryland Pattern Jury Instructions, Fourth Edition, MICPEL, MPJI-Cv 13:3(c)(3)(c) (2002).

The pattern jury instructions provide that "as a rule of thumb only, sales more than five years prior to the date of taking... can be excluded." Id. (emphasis ours). The cases referred to in the MPJI hold that the trial court should be given ample discretion to determine what sales are comparable to the property in question, making it clear that the five-year rule is simply a general guideline.

State Roads Comm'n v. Adams, 238 Md. at 378-79, 209 A.2d 247, and Taylor v. State Roads Comm'n, 224 Md. at 94-5, 167 A.2d 127, cite Lustine as the leading case in this area. In Lustine, 217 Md. at 277-78,142 A.2d 566, a landowner and tenant both objected to condemnation of part of the subject parcel for use as a highway. At the trial, the landowner and tenant sought to introduce testimony by an expert relating to comparable properties used for similar purposes. Id. at 280, 142 A.2d 566. On appeal, the Lustine Court held that keeping the information relating to those properties out of evidence at the trial was "unduly restrictive." Id. The Court stated that the settled principle is that there is "considerable latitude in the exercise of discretion by the lower court in determining comparable sales." Id. (citing Patterson v. Mayor and City Council of Baltimore, 127 Md. 233, 241, 96 A. 458 (1915); Williams v. New York, P. & N. R. Company, 153 Md. 102, 108, 137 A. 506 (1927)). The Lustine Court reasoned that

real estate parcels have a degree of uniqueness which make comparability, one with the other, in a strict sense, practically impossible. We think it the better policy, where there are any reasonable elements of comparability, to admit testimony as to the sales, and leave the weight of the comparison for the consideration of the jury, along with such distinguishing features as may be brought out on cross-examination or otherwise.

Lustine, 217 Md. at 281, 142 A.2d 566.

The sale objected to by the appellant in the case before us is comparable to the property being valued—they are, in fact, the same property. The eighteen-year-old sale is simply the sale pursuant to which the appellant acquired title. Such conveyances are generally recognized as admissible in condemnation cases. See 5 David Schultz, Nichols on Eminent Domain § 21.01[2] (3d ed.2001). Any differences in the condition of the building went to the weight of that evidence and were properly before the jury for consideration. Lustine, 217 Md. at 281, 142 A.2d 566. The appellant had ample ability to cross-examine the appellee's experts about the comparison and the property's value adjusted for time. In fact, on re-direct, appellant's counsel elicited testimony from appellant's representative that the sale eighteen years ago was an estate sale of the property "as-is." Appellant's representative also testified to extensive repairs made to the property by appellant.

Relying on Colonial Pipeline v. Gimbel, 54 Md.App. 32, 43-44, 456 A.2d 946 (1983), appellant claims that when appellee offered the previous sale of the property eighteen years ago, it needed to adjust the sales price using the consumer price index or another method that would account for the age of the sale. The burden of proof to establish value, however, falls on neither party. Solko v. State Roads Comm'n, 82 Md.App. 137, 147, 570 A.2d 373 (1990) ("once the necessity for the taking has been established, the focus of the fact finder is upon `just compensation' which the State is required to pay for that taking. It matters not who bears the burden of proof as the concept has no place in the inquiry.") Id. at 147, 570 A.2d 373. See Solko, 82 Md.App. at 147, 570 A.2d 373. The party opposing the introduction of a sale for comparison can cross-examine the witness with respect to the age of the sale. See Lustine, 217 Md. at 281, 142 A.2d 566; see also Hance v. State Roads Comm'n, 221 Md. 164, 168, 156 A.2d 644 (1959).

In Colonial Pipeline, this Court addressed the admissibility of the purchase price of property for purposes of valuing it. Colonial Pipeline, 54 Md.App. at 41,456 A.2d 946. The trial court allowed the owners of the property to elicit testimony from their expert about the purchase, which had occurred eighteen years prior to the trial. Id. at 34, 456 A.2d 946. The owner's expert in that case expressed his opinion as to the value of the eighteen-year-old sale and adjusted the price, using the consumer price index. Id. at 36, 456 A.2d 946. The condemnor's rebuttal expert stated that adjustments using the consumer price index were not accepted in the trade, and he gave his own valuation of the property. Id. On appeal, this Court indicated that adjustment of the sales price by an expert was evidence to be elicited on cross-examination and weighed by the jury. Id. at 40, 456 A.2d 946. We held that "although `[t]here is no fixed period of time in which the purchase price of property sought to be condemned should be either admitted or excluded from evidence,' the trial courts are given considerable latitude and discretion in this area." Id. (citing Mayor and City Council of Baltimore v. Schreiber, 243 Md. 546, 551, 221 A.2d 663 (1966)); see also Belworth, Inc. v. Baltimore, 256 Md. 369, 374, 260 A.2d 284 (1970). We stated that the trial judge should consider whether the original purchase price would be helpful to the jury, looking at such factors as changes in the property, changes in the surrounding neighborhood, and economic growth of the area. Colonial Pipeline, 54 Md.App. at 41,456 A.2d 946. Although the sale in Colonial Pipeline was eighteen years old,...