Greater Baltimore Consol. Wholesale Food Market Authority v. Duvall

• Decision Date: 07 October 1969
• Docket Number: No. 182,182
• Parties: The GREATER BALTIMORE CONSOLIDATED WHOLESALE FOOD MARKET AUTHORITY v. Marland W. DUVALL et ux.
• Court: Maryland Court of Appeals

Page 90

255 Md. 90

256 A.2d 882

The GREATER BALTIMORE CONSOLIDATED WHOLESALE FOOD MARKET AUTHORITY v. Marland W. DUVALL et ux.

No. 182.

Court of Appeals of Maryland.

Oct. 7, 1969.

John J. Ghingher, Jr., Baltimore (Jack N. Zemil and Weinberg & Green, Baltimore, on the brief), for appellant.

C. Maurice Weidemeyer, Annapolis, and Bernard F. Goldberg, Ellicott City, for appellees.

Before HAMMOND, C. J., and MARBURY, BARNES, FINAN and SMITH, JJ.

MARBURY, Judge.

The appellant, The Greater Baltimore Consolidated Wholesale Food Market Authority (Authority), an instrumentality of the State of Maryland, instituted condemnation proceedings in the Circuit Court for Howard County on December 24, 1968, against land owned by the appellees, Marland W. Duvall and Charlotte M. Duvall, his wife. As a result of these proceedings a jury returned a verdict against the appellant on April 7, 1968, in the amount of $561,599.50. Appellant's motion for a new trial was denied; judgment absolute in the same amount was entered on April 29, 1969; and this appeal followed.

The appellant sought to acquire 77.462 acres of unimproved land zoned M-2 (Heavy Industrial) which is a part of a 97.262 acre parcel owned by the appellees, thereby leaving a remainder in the appellees of 19.8 acres of land. The land fronts on the westernmost side of Dorsey Run (Tomato) Road at a point south of the intersection of Maryland Route 175 (Waterloo Road), in the 6th Election District of Howard County, Maryland.

Expert witnesses for both sides testified that the highest and best use of the land was for industrial development. There was testimony that some 8 acres of the property to be taken was a 'flood plain' and worth substantially less per acre than the firm land. Appellant's expert witnesses testified that in their opinions the firm ground was worth $5,250 and $5,500 per acre, respectively. As to the flood plain area one of them testified that this area was worth $1,250 per acre, and the other $1,000 per acre. The appellees' experts agreed on a figure of $6,000 per acre for the entire acreage to be acquired. The appellee, Mr. Duvall, was allowed to testify to his estimate of the fair market value and fixed it at $8,500 per acre. The jury's verdict computed on a per acre basis amounted to $7,250 per acre.

The appellant first contends that the trial court erred in its rulings on the admissibility of the property owner's testimony, on appellant's objections to the jury argument thereon, and that these errors resulted in substantial injustice to it. The Authority says that the jury's verdict is an inflated figure produced as a result of errors by the trial court.

The main thrust of appellant's contention concerns testimony by Mr. Duvall as to the price of lots in a nearby industrial park. In this park extensive development had been completed and the finished sites were allegedly being marketed at $25,000 per acre. Mr. Duvall made a proffer of testimony as to his intention to ultimately develop his land in a comparable manner and, based upon this proposed industrial subdivision, arrived at a figure of $8,500 per acre for the present undeveloped land. The trial judge, out of the presence of the jury, we think properly refused this proffer as being too speculative a basis for valuation. Holy Trinity Russian Independent Orthodox Church v. State Roads Comm., 249 Md. 406, 240 A.2d 255 (1968); Smith v. Potomac Electric Power Co., 236 Md. 51, 202 A.2d 604 (1964).

However, in the course of the trial Mr. Duvall was asked his opinion of the value of his land. The owner of land is at least presumptively competent to testify to his estimate of its value, however unreasonable that estimate may sometimes be. State Roads Com. of Md. v. Novosel, 203 Md. 619, 102 A.2d 563 (1954); Jackson v. Linthicum, 192 Md. 272, 64 A.2d 133 (1949); Bresnan v. Weaver, 151 Md. 375, 135 A. 584 (1926). The jury is, of course, not compelled to accept this figure set by the owner. Duvall testified that he thought the fair valuation of the land being taken was $8,500 per acre. He was then asked on direct examination how he arrived at this figure. Counsel of appellant objected. After a bench conference, the following occurred:

'Q. Are you aware, Mr. Duvall of other prices on other properties? A. Yes, sir, I'm quite aware of other prices and there has been a twenty-five thousand dollars an acre price, for instance, established, for instance, by the industrial park next door, the Arundel Industrial Park. This is a known fact insofar as I've been informed and I, this, I've set my sales price on my lots at-

(Mr. Ghinger) Objection, Your Honor, they're getting into the same area again.

(Mr. Goldberg) Well, we're satisfied with that. Thank you Mr. Duvall.

(Mr. Ghinger) I only have one question.' ¹

At this juncture an objection had been made by Mr. Ghinger to the statement made by Mr. Duvall as he began to refer to sales prices on lots, and thereafter Mr Ghinger, without requesting a ruling from the court or moving to strike the testimony, immediately began cross examination. With this statement in evidence before the jury, appellees' counsel made several references to the figure of $25,000 per acre in his closing argument to the jury.

In the case of State Roads Comm. v. Bare, 220 Md. 91, 94, 151 A.2d 154, 155-156 (1959), this Court stated:

'* * * Rule 522 d 2 reads that '(e)very objection to the admissibility of evidence shall be made at the time when such evidence is offered, or as soon thereafter as the objection to its admissibility shall have become apparent, otherwise the objection shall be treated as waived.' The committee's note states: 'Counsel are cautioned that in the light of the Court of Appeals construction of its former Rule 17, which is the foundation for Rule 522, a ruling of the court must be obtained upon each objection, in order to lay the proper foundation for an appeal.' Generally speaking, specific objection should be made to each question propounded, if the answer thereto is claimed to be inadmissible.'

If we assume without deciding that the testimony complained of was inadmissible, the appellant waived its objection to its admission by not moving to strike out the nonresponsive answer of the witness so that the alleged error, if any, has not been preserved for our consideration on this appeal.

The record before us discloses that after the conclusion of the argument of counsel, appellant's counsel asked the trial court to instruct the jury to disregard that portion of appellees' counsel's argument in which he alluded to the testimony of Mr. Duvall with reference to his $25,000 per acre figure. However, as pointed out above, since this testimony was before the jury and no action taken to eliminate it, it was the subject of fair comment by opposing counsel, and a request made to the trial court after closing argument to instruct the jury to disregard it came too late, so that the court was justified in denying this request. Gault v. State, 231 Md. 78, 188 A.2d 539 (1963); Martin v. State, 206 Md. 66, 98 A.2d 8 (1953).

Appellant next claims error in the trial court's...