First Nat. Realty Corp. v. State Roads Commission

• Decision Date: 12 November 1969
• Docket Number: No. 49,49
• Citation: 255 Md. 605,258 A.2d 419
• Court: Maryland Court of Appeals
• Parties: FIRST NATIONAL REALTY CORPORATION v. STATE ROADS COMMISSION of Maryland.

Page 605

255 Md. 605

258 A.2d 419

FIRST NATIONAL REALTY CORPORATION v.STATE ROADS COMMISSION of Maryland.

No. 49.

Court of Appeals of Maryland.

Nov. 12, 1969.

Hal C. B. Clagett, Upper Marlboro, (Thomas A. Farrington and Sasscer, Clagett, Powers & Channing, Upper Marlboro, on the brief) for appellant.

Carl Harrison Lehmann, Spec. Atty., Upper Marlboro (Francis B. Burch, Atty. Gen., and Joseph D. Buscher, Spec. Asst. Atty. Gen., Baltimore, on the brief), for appellee.

Before MAMMOND, C. J., and BARNES, McWILLIAMS, SINGLEY and SMITH, JJ.

SINGLEY, Judge.

This case is a reprise of the controversy which was before us in First National Realty Corp. v. State Roads Comm'n, 247 Md. 709, 234 A.2d 577(1967) where we reversed the judgment entered in a condemnation case in the Circuit Court for Prince George's County and remanded the case for further proceedings.

In that case, the record showed that State Roads Commission(the Commission), which proposed to take 1.28 acres in fee and .13 acre in revertible slope easements for road widening purposes from a tract of nearly 70 acres on Greenbelt Road in Prince George's County, had filed plats on 10 November 1961 and had deposited in court an amount equivalent to its valuation of the property which it was taking from First National Realty Corporation(First National).On 5 September 1962, First National timely filed its notice of dissatisfaction with the award made by the Board of Property Review.The Commission did not institute condemnation proceedings within 30 days of 5 September, but itself filed a notice of dissatisfaction on 13 September and filed a petition for condemnation within 30 days of 13 September.

We reversed, holding that because the Commission had neither acquired title to the condemned property within one year from the day of recording the plat nor filed a condemnation suit within 30 days of the filing of the notice of dissatisfaction by First National, the time of valuation of the property should have been the time of trial and not, as the lower court had ruled, the time when the plat was recorded.In so holding, we relied on Maryland Code(1957, 1964 Repl.Vol.) Art. 89B § 18; on Maryland Rules U27 f 1 and 2, and on State Roads Comm'n v. Orleans, 239 Md. 368, 211 A.2d 715(1965)andVolz v. State Roads Comm'n, 221 Md. 209, 156 A.2d 671(1959).

First National, dissatisfied with the amount of the judgment entered in its favor in the trial of the case on remand, has appealed.First National argues that the judgment should be reversed, because the jury's verdict was tainted by certain evidence improperly adduced at the trial which had the effect of frustrating our prior holding that valuation of the property must be that the time of trial and not at some earlier date.

First National assigns as error:

i. The court's admission of evidence as to the purchase price of the property.

ii.The court's refusal to strike the testimony of the Commission's expert witness, because he failed to to cite comparable sales.

iii.The court's allowing the Commission to impeach the testimony of an adverse witness.

Because we find no prejudicial error in the record, taken as a whole, State Roads Comm'n v. Kuenne, 240 Md. 232, 235, 213 A.2d 567(1965);Hance v. State Roads Comm'n, 221 Md. 164, 176, 156 A.2d 644(1959), we shall affirm.

i.

First National complains that its president, Sidney J. Brown, called bt the State as an adverse witness, was permitted to testify over strenuous objection 'Q Mr. Brown, when did you purchase this subject property?

(Mr. Clagett (counsel for First National)): I object.

(The Court): Overruled.

(The Witness): The property was purchased in December of 1959.

By Mr. Lehmann (counsel for the Commission):

'Q From who did you purchase it?

'A It was purchased from Harry Boswell, Jr., and Sr., Philip Lustine and A. H. Smith.

'Q How much did you pay for it?

(Mr. Clagett): I object.

(The Court): Overruled.

(The Witness): The property sold for, as I recollect, something in the neighborhood of five hundred and-$550,000, I believe.'

Mr. Brown was then permitted to testify on cross examination, over the Commission's objection, that subsequent to the purchase, First National spent $3,000,000 on site preparation and $6,000,000 on improvements.

We do not believe that the admission of Brown's testimony regarding original cost was error.Whatever probative value it might have had was tempered when Brown was permitted to testify as to subsequent expenditures, and by the testimony of the experts produced by both parties.To the extent that it was not, the court's instruction left the jury in no doubt about the weight to be given it:

'Well, the law recognizes that you can take the property as a whole, a little less than eighty acres, and you put a value on the whole thing before, including this strip that they are taking, and then you put a value on the whole thing minus the strip.The difference between the two should be the value of the strip.So that is the approach.

'You note I said the market value of this property first, before, including the strip, and the property minus the strip.Market value each time.Well, the next thing is the market value as of when?There has been a lot of bickering back and forth, and so forth, about all these dates.I tell you as a matter of law as of today, december the 10th, 1968; that is the date you are dealing with.

'What do I mean by market value?In other words, when I say 'market value' what do I mean?Well, it means simply what a buyer, willing but not compelled to buy,-there is nothing making him buy this particular piece of property, but he is willing to buy it-would pay for it; and which a seller, willing but not compelled at some forced sale with the sheriff looking down his throat or something,-not compelled to sell but willing to sell-would take for it.In other words, it is what would it bring on the market when there exists this willing seller and willing buyer and dealing fairly, uncoerced by any outside force, what would it bring in that situation and what would it bring today, December the 10th, 1968.

'But there is another factor you have to take into account.It is what would be the fair market value before and after, that is, with and without this strip being deducted from it, as of today's date, but creating no increased value because of this dualization project itself.In other words, even though you view it as of today you have got to use the legal fiction or magic that instead of the dual road being there it is the two-lane road of whatever width it was prior thereto, if you feel that the dualization project increased it in and of itself.'(emphasis added).

But even assuming, arguendo, that the admission of the evidence was error we do not think that this would justify a reversal.As Judge Prescott, speaking for this Court in Hance v. State Roads Comm'n, 221 Md. 164, 156 A.2d 644(1959), said:

'Courts are reluctant to set aside verdicts for errors in the admission or exclusion of evidence unless they cause substantial injustice.This is especially true in condemnation proceedings.Such cases usually consume much time in trial, and are expensive in nature.As a rule, they are determined by a myriad of different items of evidence.The exclusion or admission of small items of evidence of doubtful materiality are not likely to be of great importance in the outcome of the case, and most courts refuse to set aside a verdict in cases of this kind, for error in the rulings on questions of evidence, unless, as indicated above, substantial prejudice be shown. * * *.'221 Md. at 176, 156 A.2d at 650.

See alsoState Roads Comm'n v. Kuenne, 240 Md. 232, 235, 213 A.2d 567(1965).No such prejudice has been shown to exist in this case.

ii.

First National's second point is that the court erred in refusing to strike the testimony of the Commission's expert witness, John Frederick Wormcke, because of his failure to substantiate his testimony by showing that he had knowledge of comparable sales.

Wormcke testified, in his direct examination, that he had been an appraiser for 13 years; described the courses which he had taken, outlined his experience in appraisal work and detailed his appearances as an expert witness.Over objection, he defined fair market value:

'Well, the fair market value for condemnation shall be the price as of the valuation date for the highest and best use of such property which a seller, willing but not obligated to sell, would accept for the property, and which a buyer, willing but not obligated to buy, would pay therefor excluding any increment in value proximately caused by the public project for which the property condemned is needed.

'Now, my interpretation is that you must have the willing buyer and willing seller, but you also must exclude or take out any increment, any increase.'

'The willing buyer and willing seller concept, but excluding any increment in value, taking out any increase in value proximately caused by the public improvement for which the condemnation is needed.'

No question was raised by First National as to Wormcke's professional qualifications, nor was he cross examined on them, except as respecting his definition of fair value.

Counsel for the Commission then proceeded to question him as to the value of the property taken.The essence of his testimony before the jury, which was unduly extended by repeated objections and interrupted by an examination of the witness out of the presence of the jury, was that the damages sustained by First National as a result of the taking by the Commission, but determined as of the date of trial, were $19,820.00, which he arrived at by deducting the value which he attributed to the property after the taking, $741,213, from his estimate of value before the taking, $761,033, excluding, in each case, the enhancement in value attributable to the dualization of Greenbelt Road.There is no doubt that Wormcke's opinion was...