Bern-Shaw v. Baltimore

• Decision Date: 08 October 2003
• Docket Number: No. 1,1
• Citation: 833 A.2d 502,377 Md. 277
• Parties: BERN-SHAW LIMITED PARTNERSHIP v. MAYOR and City Council OF BALTIMORE.
• Court: Maryland Court of Appeals

833 A.2d 502

377 Md. 277

BERN-SHAW LIMITED PARTNERSHIP v.MAYOR and City Council OF BALTIMORE.

No. 1, Sept. Term, 2003.

Court of Appeals of Maryland.

October 8, 2003.

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

Andrew G. Bailey, PrincipalCounsel, and Elva E. Tillman, Special Solicitor (Thurman W. Zollicoffer, Jr., City Solicitor, Baltimore), on brief, for respondent.

Argued before BELL, C.J., and ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ CATHELL, Judge.

This case arises out of a "quick-take" condemnation¹ by the Mayor and City Council of Baltimore, respondent, of a property located at 324 West Baltimore Street in Baltimore City then owned by Bern-Shaw Limited Partnership, petitioner.Respondent filed the condemnation on October 3, 2000, and paid into court $234,000.00, which was the higher of two appraisals it had obtained, thereby "taking" the property on that date.²On December 10-12, 2001, more than fourteen months after the "taking," a jury trial was held in the Circuit Court for Baltimore City to determine the fair market value of the property.The jury found the value of the property to be $140,000.00.³After the petitioner filed a motion for a new trial, which was denied.Petitioner filed an appeal of the final judgment and the denial of the motion for a new trial with the Court of Special Appeals.On December 3, 2002, that court affirmed the trial court's judgment.Bern-Shaw P'Shp v. Mayor and City Council of Baltimore,148 Md.App. 313, 811 A.2d 869(2002).Petitioner then filed a Petition for Writ of Certiorari with this Court, and, on April 9, 2003, we granted the petition.Bern-Shaw v. Mayor and City Council of Baltimore,374 Md. 82, 821 A.2d 369(2003).Petitioner presents four questions for our review:

"1.Is a remote sale of the condemned property, unadjusted to reflect current value, generally admissible to prove the property's fair market value defined in Real Property ArticleSection 12-105?

"2.Where property is acquired by the quick take process, authorized by Article III, Section 40A of the Maryland Constitution, (a) does Rule 5-403 authorize a court to order that the view of the property provided for by Rule 12-207 not take place where prejudicial conditions exist?(b) Should the court have ordered that the view not take place in this case?(c) Should a new trial have been granted where, during the course of the view, rats frightened jury members, causing the view to be aborted?

"3.Does the elaboration of a report by an expert witness at trial authorize the testimony by a rebuttal expert witness whose existence and report were not disclosed during discovery?

"4.Should a new trial have been ordered because the only exhibits that depicted the property prior to the date of condemnation were missing from the courtroom at the time of the owner's testimony?"

We answer in the negative the first of petitioner's questions and hold that the trial court was in error for allowing into evidence the price paid by petitioner in 1982 for the property in question.Absent an adjustment of the 1982 purchase price to reflect the current value, and considering that twelve comparable sales were entered into evidence by the parties to prove the property's value at the time of the taking, we hold that the evidence regarding the 1982 purchase price was not relevant to show the fair market value of the property as it existed in October of 2000.

We also hold that the trial court was in error for allowing a jury view of the property, over petitioner's objection, and that, in a "quick-take" condemnation proceeding, a jury view of the property is not mandatory under Maryland Rule 12-207(c) where the view would be unfairly prejudicial to the former owner.Under the specific facts of the casesub judice, the jury view of the property fourteen months after petitioner relinquished control over the premises was unfairly prejudicial.Given our holdings with respect to petitioner's first two questions necessitating a new trial, it is unnecessary to address petitioner's third and fourth questions.Accordingly, we reverse the judgment of the Court of Special Appeals.

I.Facts

Petitioner owned property at 324 West Baltimore Street consisting of a five-story (with 20-foot ceilings) mixed commercial and residential use building that was more than 100 years old and contained 25,000 square feet of space.On October 3, 2000, respondent instituted a "quick-take" condemnation action for immediate possession and title of the property.At the time of respondent's "quick-take" acquisition, the property was occupied by a photography studio on the first floor, an apartment on the second floor, storage on the third floor, and a sewing machine company on the fourth floor.

Shortly after taking possession of the five-story building, respondent proceeded to evict the tenants and to turn off the electricity to the building.In the process of moving out, the tenants apparently ripped fixtures from the walls and left trash scattered over the floors.At this point, title, possession, and responsibility for the premises was in respondent.At the time of trial fourteen months later, the building was full of trash and infested with rats.This was the building's condition at the time of the jury view on December 11, 2001.

The jury view appears to have been the cause of some concern at trial.Petitioner objected to the jury being allowed to view the building's interior, as it was at the time of trial filled with trash, adequate lighting would not be available because of the lack of electricity, the building was then infested by rats, and the jury would not be able to see all five floors.At trial, petitioner argued:

"[Petitioner]: And the problem is really two fold.One is, it's a big five story building.I don't think we can really expect the jury to climb—the elevators are not working.

THE COURT: Right.

[Petitioner]: To climb to the top.Part of the back of the building, because there's been a whole [sic] in the roof, the ceiling's coming down.I don't think you want a jury back there.So they really can't see the whole building.And the other problem is ... as often happens and I'm sure the City didn't intend this.There were tenants on the first floor and when they moved out the City took the building and you look at the first floor now and you say well, this has been trashed.It looks terrible.There's trash thrown around.I went in the building the other day and saw a dead rat.You know, I just think it will be hard and very prejudicial for the jury to be in there and see this.It wasn't, this is not the way—it's been over a year since they took the property so it's really not, you really can't see what it was like when they took it.And I, I'm just very concerned about them going in because they can't see it and because it's been trashed."

Respondent asked that the jury be allowed to see the interior of the building.Over objection by petitioner, the trial court ordered that the jury view the first two floors of the building.⁴

The resulting jury view was somewhat unusual.Due to the fact that there was no electric lighting in the building, flashlights were distributed to each of the jury members to illuminate the darkened interior.Because of the assorted refuse left behind by the evicted tenants, the jurors had to use caution in watching where they stepped.Also, upon reaching the second-floor landing, it appears that some of the jurors came upon the unwelcome sight of several rats and quickly fled down the stairs, unwilling to continue their tour of the premises.

At the trial itself, respondent called two expert appraisal witnesses.The first expert testified that the value of the property was $225,000.00 while the second testified that the value was $234,000.00.Petitioner also called two expert appraisal witnesses.Petitioner's first expert appraisal witness testified that the value was $500,000.00 and the second testified that the value was $513,000.00.To determine these valuations, all four of the expert appraisal witnesses used comparable sales approximately within five years of October 3, 2000, the day of the "quick-take" acquisition.Several of these comparisons were of buildings within the same block, and all of the expert appraisal witnesses adjusted the sales prices to account for the lapse of time between the date of the comparable sale and the date of the take.In all, twelve comparable sales were introduced at trial.

A representative of petitioner, Harry Shapiro, was also called to testify as to the value of the building in question.It was during the cross-examination of Mr. Shapiro by respondent that Shapiro was asked how much had been paid for the property when petitioner acquired it in 1982, 18 years prior to the condemnation.Petitioner objected on the grounds that an 18 year old sale was too remote in time to be of value to the jury, i.e., was irrelevant.The trial court overruled the objection, and Shapiro testified that the building had been purchased in 1982 for $85,000.00.⁵The deed of conveyance showing this remote purchase price was then moved into evidence.

The jury returned a verdict of $140,000.00.This verdict was considerably lower than any of the valuations given by either petitioner's or respondent's expert appraisal witnesses.The only evidence of any value less than the appraisals was the testimony that the purchase price of the 18-year-old sale had been $85,000.00.Petitioner moved for a new trial, but the motion was denied.Petitioner then appealed to the Court of Special Appeals.As previously mentioned, the Court of Special Appeals affirmed the trial court's judgment as to both the jury verdict and the denial of a motion for a new trial.

II.Discussion

A.Evidence Regarding the 1982 Sale Price of the Property

It is the jury's task to determine the fair market value of a condemned property, including determinations of value in "quick...