City of Tucson v. LaForge

Decision Date29 October 1968
Docket NumberNo. 2,CA-CIV,2
Citation446 P.2d 692,8 Ariz.App. 413
PartiesCITY OF TUCSON, a municipal corporation, Appellant, v. Reuben LaFORGE and Jane Doe LaForge, husband and wife, Appellees. 503.
CourtArizona Court of Appeals

Dino DeConcini, City Atty., William N. Sherrill, Asst. City Atty., Tucson, for appellant.

Dunseath, Stubbs & Burch, by Robert C. Stubbs, Tucson, for appellees.

HATHAWAY, Chief Judge.

The City of Tucson seeks review of a judgment entered in condemnation proceedings instituted by it in superior court, Pima County. The questions presented for review are directed to the trial court's rulings as to evidence and instructions.

The defendants was the owner of a parcel of land located on the south side of West Grant Road, one block west of Miracle Mile. Before condemnation, the property had 150 feet of frontage on Grant Road and a depth of 140.5 feet. The property was improved with a 5,000 square foot building (see illustrative drawing) which was specially disigned for use as a warehouse-distribution facility.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In the 'before' situation, there was no curbing along Grant Road and large trucks, approximately 50 to 60 feet in length, were used by lessees of the property. From August, 1958, until shortly before the condemnation action was filed, the property was continuously rented without any effort on the part of the property owner. Upon learning, in 1965, of the widening of Grant Road, a tenant who was paying $350 a month rental to the defendant did not exercise its option to renew the lease, and moved out in March, 1966. The property, which was zoned for industrial uses, was shown to numerous prospective tenants, both by the property owner and a real estate broker, and was finally rented to a janitorial supply business for $200 per month. As a result of the condemnation the City acquired the frontage on Grant Road to a depth of 30 feet. In the 'after' situation, there remained only 34.4 feet in front of the building and a curb was constructed along the roadway with three curb cuts providing access to the LaForge property. (The center one was approximately 20 feet in width and the other two were 30 feet in width.) There was testimony to the effect that in the 'before' situation, it was possible to bring in at least one 50 to 60 foot truck for loading or unloading purposes but that it was impossible to do so in the 'after' situation.

The property owner testified that he had sustained damages in the amount of $35,000 to the property remaining and that the value of the property taken was $7,200. The property owner's appraiser testified that in her opinion the damages for the part taken were $7,200 and the severance damages were $16,452. The opinion of the City's appraiser, on the other hand, was that the damages for the part taken were $5,100 and severance damages were only $1,500. The latter amount was the cost of constructing a dock which would make it possible to rent the property, in his opinion, for $370 per month. The jury returned a verdict for the property owner of $23,000, consisting of $6,000 for the land taken and $17,000 in severance damages.

The City contends that it was error to permit the property owner's appraiser to testify as to sale of certain other properties since they were either non-comparable or too remote in time. Initially, it must be pointed out that evidence of the sale price of similar property in the vicinity of the condemned property may be admissible for two different and distinct purposes, i.e., as substantive proof of value of the condemned property or in support of and as background for an expert witness's opinion as to the value of the property taken. United States v. Smith, 355 F.2d 807 (5th Cir. 1966); State Roads Commission v. Adams, 238 Md. 371, 209 A.2d 247 (1965); City of Trenton v. Penn-Jersey Auto Stores, Inc., 90 N.J.Super. 221, 217 A.2d 17 (1966); West Kentucky Coal Company v. Commonwealth, Ky., 368 S.W.2d 738 (1963).

Comparability is a question of fact and trial judges have broad discretion in ruling on the admissibility of evidence of comparable sales. Town of Williams v. Perrin, 70 Ariz. 157, 217 P.2d 918 (1950); United States v. Certain Interests in Property, 326 F.2d 109 (2d Cir. 1964), cert. denied, 377 U.S. 978, 84 S.Ct. 1884, 12 L.Ed.2d 747. This is equally true where the other sales are used as a basis for the expert's opinion. State Roads Commission of Maryland v. Smith, 224 Md. 537, 168 A.2d 705 (1961); Berry v. State, 103 N.H. 141, 167 A.2d 437 (1961); State Highway Commission v. Newton, Wyo., 395 P.2d 606 (1964); Routh v. State Highway Commission, Wyo., 402 P.2d 706 (1965); Crouch v. State, 413 S.W.2d 141 (Tex.Civ.App.1967); Department of Public Works and Buildings v. Lankford, 65 Ill.App.2d 133, 212 N.E.2d 14 (1965). Where, as here, the other sales were offered not as direct indicia of value, but rather to serve as a basis for the expert's opinion, the comparability requirement is less strict. United States v. 60.14 Acres of Land, etc., 362 F.2d 660 (3d Cir. 1966); United States v. Johnson, 285 F.2d 35 (9th Cir. 1960); State ex rel. Price v. 0.0673 Acres of Land, etc., 224 A.2d 598 (Del.1966); State Highway Commission v. Hayes Estate, 140 N.W.2d 680 (S.D.1966); State Highway Commission v. Newton, supra.

We find no merit to the City's objection, predicated upon lack of probative value, to the admission of these other sales. 1 The fallacy of the City's argument and that resultant inappositeness of the authorities cited in support thereof, is that these other sales were not offered as substantive proof of the value of the condemned property but merely as foundation for the expert opinion of value. If the sales were not comparable, which could be brought out on cross-examination and called to the jury's attention in final argument, such factor merely bears upon the weight to be accorded the expert's opinion. South San Francisco Unified School District v. Scopesi, 187 Cal.App.2d 45, 9 Cal.Rptr. 459 (1960); State v. Helvey, 375 S.W.2d 744 (Tex.Civ.App.1964); Weeden v. City of Beloit, 29 Wis.2d 662, 139 N.W.2d 616 (1966); Rockland Electric Company v. Bolo Corporation,66 N.J.Super. 171, 168 A.2d 817 (1961); see also International Paper Company v. United States, 227 F.2d 201 (5th Cir. 1955).

The City also challenges the propriety of permitting cross-examination of the City's appraiser with regard to two other property appraisals he had made in connection with this same construction project. Wide latitude is allowed in cross-examination of expert witnesses on the subject of value for purposes of testing their knowledge, judgment, bias and the validity of their opinions. People ex rel. Dept. of Public Works v. Wasserman, 240 Cal.App.2d 716, 50 Cal.Rptr. 95 (1966); State by Lord v. Pearson, 260 Minn. 477, 110 N.W.2d 206 (1961). These other appraisals, the subject of this cross-examination, were both nearby to the LaForge property and had frontage on Grant Road. We find no error in allowing the cross-examination of the State's expert with regard to his appraisals made of other nearby property in order to test, for impeachment purposes, his knowledge of land and his qualifications as an expert witness. Commonwealth, Dept. of Highways v. Eubank, Ky., 369 S.W.2d 15 (1963); State v. Weidel, 385 S.W.2d 625 (Tex.Civ.App.1964); County of Contra Costa v. East Bay Municipal District, 175 Cal.App.2d 834, 1 Cal.Rptr. 60 (1959).

As heretofore noted, the property owner testified as to his opinion of value. Of course, as an owner he was competent to so testify. Board of Regents, etc. v. Cannon, 86 Ariz. 176, 342 P.2d 207 (1959); State ex rel. Herman v. Lopez, 8 Ariz.App. 61, 442 P.2d 884 (1968). The City now complains that the trial court erred in restricting its cross-examination of the property owner and that 'the continual restrictions resulted in prejudicial error to the City.' In State v. Lopez, supra, we recognized the right of the condemnor to cross-examine an owner to expose the method utilized in arriving at his value figure. The City contends that the questions propounded sought to elicit answers which would serve to discredit the witness's estimate of value.

The property owner had testified that he based his opinion of value on the difference in rental income before and after the taking, i.e., $350 a month before and $200 per month after. The only question, as to which an objection was sustained, which bears any relation to the landowner's Method in computing value, was an attempt to obtain an average annual rental figure by averaging the $200 per month six-month rental for one half the building with the $350 per month six-month rental for the entire building. We agree with the trial court's termination of this line of inquiry. Counsel for the City admitted that the testimony revealed that $200 per month had been paid for the first six months and $350 per month thereafter. He stated that he merely wanted to correct a misconception that the property was rented for $350 per month. Averaging a rental paid for one half a building together with the rental paid for the entire building would not produce an average monthly rental for the entire building.

The trial court refused to allow the City to cross-examine the owner as to whether he owned any other property in Tucson and as to his knowledge of other truck terminal operations. Although we believe the City should have been afforded an opportunity to test the owner's expertise, we conclude that the error was merely harmless and did not 'affect the substantial rights' of the City. Rule 61, Rules of Civil Procedure, 16 A.R.S.; see also State ex rel. Morrison v. Jay Six Cattle Company, 88 Ariz. 97, 353 P.2d 185 (1960).

The City complains of the fact that the trial court permitted Mr. Tregonis, city engineer, to testify, over objection, concerning the amount that Grant Road property owners would be assessed for costs of the...

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