City of Worcester v. Eisenbeiser

• Decision Date: 06 April 1979
• Citation: 7 Mass.App.Ct. 345,387 N.E.2d 1154
• Parties: CITY OF WORCESTER v. John H. EISENBEISER (and a companion case).
• Court: Appeals Court of Massachusetts

Page 1154

387 N.E.2d 1154

7 Mass.App.Ct. 345

CITY OF WORCESTER v. John H. EISENBEISER (and a companion case).

Appeals Court of Massachusetts, Worcester.

Argued Feb. 15, 1979.

Decided April 6, 1979.

Bennett S. Gordon, Asst. City Sol., for plaintiff.

Kevin T. Byrne, Worcester, for defendant.

Before BROWN, GREANEY and KASS, JJ.

BROWN, Justice.

This is an appeal by the city of Worcester (city) from judgments entered in the Superior Court which (1) annulled a demolition order issued by the city pursuant to G.L. c. 139, § 1, and (2) awarded the defendant Eisenbeiser damages in the amount of $23,000 for the wrongful demolition of his building. The city also appeals from an order denying its motion for a new trial and for a remittitur.

The following facts appear from the record. Eisenbeiser owned a multi-unit residential building located in Worcester. In January, 1976, the building was damaged by fire and the city, pursuant to G.L. c. 139, § 1, determined that the building was dilapidated and dangerous and ordered that the building be demolished. After receiving notice of the demolition order Eisenbeiser, pursuant to G.L. c. 139, § 2, filed a timely complaint in the Superior Court, appealing the order and claiming a trial by jury. While the appeal was pending, however, the city caused the building to be demolished. Eisenbeiser then moved to amend his complaint to include a claim for damages for the wrongful demolition of his building; his motion was allowed. In March, 1977, the city brought an action against Eisenbeiser, pursuant to G.L. c. 139, § 3A, to recover the costs incurred in demolishing the building. The two actions were consolidated, and a trial was held in the Superior Court before a judge and jury. At the close of all the evidence Eisenbeiser moved for directed verdicts in both actions. In Eisenbeiser's action, the judge annulled the demolition order of the city and submitted that case to the jury on the question of damages. The judge directed a verdict for Eisenbeiser in the city's action against him on the grounds that the "demolition was (not) done in conformity to the laws of the Commonwealth and that such demolition is therefore illegal." The jury returned a verdict for Eisenbeiser in his action in the amount of $23,000. We find no error.

1. The city argues that the judge erred in permitting Eisenbeiser's expert witness to testify. See generally Venini v. Dias, 5 Mass.App. ---, --- - --- ^A, 369 N.E.2d 1026 (1977). The city claims that on voir dire and before the jury the witness displayed such a lack of knowledge of real estate appraisal techniques that the judge abused his discretion in permitting him to testify. The question whether a person is qualified to testify as an expert is one for the trial judge, and it is within his broad discretion to determine whether the proposed expert "has a proper basis, in terms of adequate information and preparation, to render an opinion on the matter in dispute." Louise Caroline Nursing Home, Inc. v. Dix Constr. Corp., 362 Mass. 306, 309, 285 N.E.2d 904, 906 (1972). Muzi v. Commonwealth, 335 Mass. 101, 106, 138 N.E.2d 578 (1956). Contrast R. H. White Realty Co. v. Boston, Redevelopment Authy., 3 Mass.App. 505, 508-509, 334 N.E.2d 637 (1975). The judge determines the qualifications of the witness and his decision, being one of fact, will not be disturbed unless there is no evidence to warrant his conclusion. Arena v. John P. Squire Co., 321 Mass. 423, 425, 73 N.E.2d 836 (1947). Catania v. Barnstable, 3 Mass.App. 321, 325, 329 N.E.2d 140 (1975). We are unable to say that as matter of law there was no evidence to support the judge's decision. The witness testified that he had been a licensed real estate broker in Massachusetts since 1963. During that time he had acted as a broker in "hundreds" of real estate transactions and had conducted "several hundred appraisals" of property in the Worcester area. He was the owner of twenty-two parcels of income producing property in the area. And, he was familiar with the defendant's building, having gone through it in 1974, prior to the fire, and after the fire he again went through the building at the request of Eisenbeiser. In light of the witness' real estate experience we cannot say that the judge abused his discretion in permitting him to give his opinion of the building's value after the fire. Consolini v. Commonwealth, 346 Mass. 501, 503, 194 N.E.2d 407 (1963). See Amory v Melrose, 162 Mass. 556, 558, 39 N.E. 276 (1895); Lee Lime Corp. v. Massachusetts Turnpike Authy., 337 Mass. 433, 436, 149 N.E.2d 905 (1958).

2. The city claims that the judge also erred when he (1) "ordered that the demolition order by the city . . . is annulled" and (2) directed a verdict for Eisenbeiser in the city's action against him. We do not agree. The city's demolition order was properly annulled by the judge because of the city's failure to comply with the procedural requirements for the demolition of dilapidated and dangerous buildings. Section 2 of G.L. c. 139 provides that a person aggrieved by an order issued under c. 139, § 1, may appeal the order to the Superior Court, where a jury trial shall be held. "The jury may affirm, annul or alter such order, and the court shall render judgment in conformity with said verdict, which shall take effect as an original order." G.L. c. 139, § 2, as appearing in St.1973, c. 1114, § 8. The city is given the same power to abate a nuisance by G.L. c. 139, § 3, as is given to a town's board of health under G.L. c. 111, §§ 123-125. The procedure set forth in G.L. c. 111, §§ 123-125, provides that the owner or occupant of any private premises shall be ordered to remove, at his own expense and within twenty-four hours or such other reasonable time, any nuisance found thereon. G.L. c. 111, § 123. It is only upon a failure by the owner or occupant to comply with such order that the city may cause the removal of the nuisance. G.L. c. 111, § 125. The notice given to Eisenbeiser stated that his building had "been declared to be a dilapidated and dangerous building and it shall be demolished." The notice failed to inform him that he could or should remove the nuisance himself, and it did not specify any time period, as required by G.L. c. 111, § 123, within which he could remove the nuisance prior to the city's taking action under G.L. c. 111, § 125, to remove it. Further, the notice informed him that he had three days in which to appeal the order to the Superior Court. Eisenbeiser filed a timely appeal, but while the appeal was pending the city caused the building to be demolished. Section 125 of G.L. c. 111, as appearing in St.1970, c. 649, § 1, provides that the board (here the city pursuant to G.L. c. 139, § 3) may cause the nuisance to be removed "(i)f the owner or occupant fails to comply with such order." There is nothing in the record before us to suggest any failure on the part of Eisenbeiser to comply with the order of the city. ¹ And without a showing of such failure the city was without authority to demolish the building. Therefore, we conclude that in these circumstances there was...