New Haven Sav. Bank v. West Haven Sound Development

• Decision Date: 10 May 1983
• Citation: 459 A.2d 999,190 Conn. 60
• Parties: NEW HAVEN SAVINGS BANK v. WEST HAVEN SOUND DEVELOPMENT et al.
• Court: Connecticut Supreme Court

Page 999

459 A.2d 999

190 Conn. 60

NEW HAVEN SAVINGS BANK v. WEST HAVEN SOUND DEVELOPMENT et al.

Supreme Court of Connecticut.

Argued Feb. 9, 1983.

Decided May 10, 1983.

Charles A. Sherwood, New Haven, for appellants (defendants).

Judy A. Rabkin, New Haven, for appellee (plaintiff).

Before PETERS, PARSKEY, SHEA, GRILLO and DALY, JJ.

GRILLO, Associate Justice.

This appeal from a deficiency judgment rendered subsequent to a judgment of strict foreclosure attacks the methods employed by the trial court in its valuation of the subject real estate.

The relevant facts are not in dispute. On November 19, 1973, the defendants ¹ executed in favor of the plaintiff a promissory note in the principal amount of $1,100,000, with interest payable at the rate of 9 percent during the first year and, thereafter, at the rate of 8 1/2 percent per annum. As security, the defendants mortgaged to the plaintiff their real property known as "Phyllis' Inc.," a restaurant located on the shore in West Haven. The note described the security interest as including all "apparatus, fixtures, furniture, furnishings and equipment now hereafter attached to or used or procured for use in connection with the operation or maintenance of any such building."

The plaintiff instituted mortgage foreclosure proceedings against the defendants on November 24, 1976. A judgment of strict foreclosure was rendered on April 15, 1977, and the amount of the debt was established at $1,201,401.66 as of February 25, 1977. ² The named defendant's law day was set as May 5, 1977, requiring it to redeem $1,201,401.66 plus interest thereon from February 25, 1977. At the expiration of the final redemption date, title to the property vested in the plaintiff on May 16, 1977. ³

Anticipating a deficiency judgment, the plaintiff filed a motion for appointment of appraisers on April 15, 1977. See General Statutes § 49-14 (Rev. to 1979). The trial court appointed three appraisers on April 22, 1977, and after physical examination of the property on May 16, 1977, the appraisers duly filed their report dated May 23, 1977, wherein they valued the subject realty at $600,000.

On September 14, 1977, the plaintiff filed a motion for deficiency judgment. An objection to the motion was filed by the defendants on February 8, 1979, ⁴ relying on a decision by this court declaring General Statutes § 49-14 unconstitutional. Society for Savings v. Chestnut Estates, Inc., 176 Conn. 563, 576, 409 A.2d 1020 (1979). Subsequently, the plaintiff, relying on the present version of General Statutes § 49-14 enacted by the legislature in 1979, filed a second motion for deficiency judgment on October 3, 1979. ⁵ A hearing was held before the Honorable A. Frederick Mignone, state trial referee, sitting as the trial court. After hearing the parties' respective evidence, the court rendered a deficiency judgment in favor of the plaintiff in the amount of $294,097.82. From this judgment the defendants appealed and the plaintiff cross appealed to this court. ⁶

The relevant evidence introduced before the trial court is as follows: The defendant Stephen Iovanna, Jr., testified that during the first two years of the note the restaurant did quite well financially. During the third year, however, the defendants found it difficult to meet their loan payments due to a drop in business occasioned by economic recession. As a result, the restaurant was listed for sale in September, 1976.

The defendants' real estate broker testified that extensive advertising and marketing campaigns were undertaken in an effort to sell the property. As a result, prior to the defendants' law day in the underlying mortgage foreclosure action, an interested buyer was found. Extensive negotiations followed, culminating in an offer by the prospective buyer, contingent on approval by the bank, to assume with certain modifications the defendants' mortgage. The plaintiff countered with an offer by letter dated April 28, 1977. ⁷ Despite agreement on several material items, this sale was never consummated. A dispute arose between the defendants and the prospective buyer concerning who would pay the real estate commission, and there were no further negotiations between these parties.

After the plaintiff took title to the subject real estate, marketing efforts continued. In July of 1977, the same buyer who had failed to consummate the earlier sale with the defendants contacted the plaintiff in an effort to purchase the property directly from the bank. Negotiations followed, culminating in a sale of the restaurant in November, 1977. The buyers agreed to assume the outstanding mortgage (then $1,178,808) under the following conditions: (1) during the first three months, the note bore no interest and no payments were due; (2) during the next nine months, payments were limited to 6 percent of gross sales, payable at the end of the nine month period, but in no event was payment to exceed 4 1/2 percent of the principal amount of the note; (3) beginning with the second year, monthly payments were to consist of interest only at the rate of 6 percent; (4) commencing in the third year, monthly payments of principal and interest were to be at the rate of 8 1/2 percent. Additionally, the buyers' joint and several liability was limited to $60,000, the buyers were required to invest $80,000 toward renovation, and the plaintiff paid the entire real estate commission.

In addition to testimony and exhibits concerning the November, 1977 sale, the opinions of five expert witnesses addressing the value of the subject realty were offered into evidence. Robert Parente, Donald Nitz and Albert Franke, the three appraisers appointed by the trial court in April, 1977, testified that in their opinion the value of Phyllis' in the spring of 1977 was $600,000. Each appraiser reached this amount by relying primarily on the income approach to valuation. ⁸ Under this approach, the net rental value per square foot of the subject property is determined through a comparison of rentals of other similarly situated properties. This figure is then multiplied by the square foot area of the real estate to produce an annual net rental figure. Next a capitalization rate, the rate a reasonable investor would seek on his capital or equity, is established. By dividing the annual net rental figure by the capitalization rate, market value is ascertained. ⁹

Parente, Nitz and Franke all testified that they were aware of the November, 1977 sale of the subject realty. In their opinion, however, because of the unusual financing terms the sales price was not an accurate reflection of market value. Accordingly, each continued to adhere to the $600,000 valuation figure. Nitz testified that if the sales price were adjusted to reflect the favorable financing arrangement, the cash equivalent of the sales price would fall between $700,000 and $770,000.

The plaintiff further introduced into evidence a report of Durocher Associates, which had appraised Phyllis' for purposes of the foreclosure action. In its appraisal of the subject real estate, Durocher Associates utilized all three methods of valuation: the cost approach, the income approach and the direct sales comparison (market data) approach. In its opinion the market value of the realty, as of January 25, 1977, was $648,000.

The defendants produced as an expert witness Norman Benedict, who testified that in his opinion the value of the subject realty as of September, 1977 was $1,200,000. In reaching his conclusion, Benedict relied primarily on the income approach to valuation. To reach a rental value per square foot, however, Benedict did not compare rentals of similarly situated properties, instead relying on past income and expense statements from both the subject realty and other restaurants in order to reach the rental figure the property could command. Moreover, Benedict utilized a 10 percent capitalization rate, found the square footage of Phyllis' to be 12,500, and further included as rental space the basement of Phyllis', which the plaintiff's appraisers had construed as unusable space. Because of these differences, Benedict's appraisal value was double that of the plaintiff's appraisers. ¹⁰

In light of this record, it is clear that the trial court was confronted with conflicting expert opinion testimony concerning valuation of the subject property. The trial court could reasonably conclude that its valuation efforts were further muddied by the sale of the realty six months after foreclosure at a price inflated by atypical financing arrangements.

The trial court, in a comprehensive memorandum of decision, weighed and balanced the diverse evidence presented. It concluded that due consideration should be given to the November, 1977 sale as one indicator of the property's market value. With regard to the appraisal testimony, it determined that the income approach, which was primarily relied upon by all appraisers, was the most feasible approach to utilize in arriving at a valuation of the subject property. Weighing the conflicting evidence concerning this approach, the court concluded that, given all the evidence presented, a deficiency judgment of $294,079.82 was warranted under the circumstances. ¹¹

Although the defendants' brief purports to address a plethora of issues on appeal, their arguments may be effectively reduced to one: Whether the trial court erred in utilizing the income approach to valuation where the subject realty was sold six months after foreclosure. ¹² Under the circumstances of this case, we find this claim unpersuasive.

We note, first, that the statutory changes effected by Public Acts 1979, No. 79-110 and occasioned by this court's decision in Society for Savings v. Chestnut Estates, Inc., supra, significantly change the role of the trial court in the valuation process. Prior to 1979, the report of the court-appointed appraisers was "final and conclusive as to the value of such mortgaged...