Palazzolo v. Rahill

• Decision Date: 21 November 1978
• Docket Number: No. 75-231-A,75-231-A
• Citation: 394 A.2d 690,121 R.I. 31
• Parties: Anthony M. PALAZZOLO et al. v. Robert J. RAHILL, Director of Public Works. ppeal.
• Court: Rhode Island Supreme Court

Page 690

394 A.2d 690

121 R.I. 31

Anthony M. PALAZZOLO et al. v. Robert J. RAHILL, Director of Public Works.

No. 75-231-Appeal.

Supreme Court of Rhode Island.

Nov. 21, 1978.

[121 R.I. 39] Raymond J. Surdut, Providence, for petitioners.

Frank Caprio, Dept. of Transp., Johnston, for respondent.

OPINION

DORIS, Justice.

This is a petition under the provisions of G.L.1956 (1977 Reenactment) ch. 6 of tit. 37 and G.L.1956 (1968 Reenactment) ch. 10 of tit. 24 for an assessment of damages resulting from a taking for highway and freeway purposes of a portion of the petitioners' land by the respondent, and for severance damages to the remainder of said land. The case was heard before a justice of the Superior Court sitting with a jury. The only issue was the assessment of damages. The jury awarded the petitioners the sum of $43,000 as compensation for the land taken and severance damages to the remainder of said land. The case is before us on the petitioners' appeal from the judgment entered pursuant to said award.

On May 8, 1970, the statement of taking and the accompanying condemnation plat was filed and recorded by respondent in the office of the Town Clerk of Westerly.

The petitioners at the time of the taking were the owners of certain land located on the Westerly-Bradford Road, so-called, in the town of Westerly. At that location they operated a business called Polly's Auto Sales-Auto Salvage and engaged in the sale of used automobiles, automobile salvage parts and junk. The respondent appropriated 2.1 acres of petitioners' land including 680 feet of frontage for highway purposes. Included in the taking were four buildings and the entry road to the property as well as a portion of a long screening fence surrounding the junkyard.

The petitioners raise three errors on appeal. First, they contend that the trial court improperly refused to allow petitioners' witness, J. Clifton O'Reilly Jr., a realtor and appraiser, to testify as an expert concerning the cost of replacing a portion of fence lost in the taking. Prior testimony had established that aesthetic fencing was required to shield the junkyard. Mr. O'Reilly had been accepted by the court as an expert in real estate appraisal and had testified at length concerning petitioners' property loss. The trial justice refused, however, to allow Mr. O'Reilly to testify concerning what the cost of replacing the lost fence would be.

In an attempt to preserve their appellate rights, petitioners made the following offer of proof:

"MR. SURDUT: We offer to show that Mr. O' Reilly would testify that that figure would be for the cost of the fence, approximately $11,000.00, and this would be for a Cyclone-type screen fence, and that further, a wooden fence would be even more expensive, and this would be a sensibly economical and satisfactory fence for the purpose and that that would be the price of the fence at that time on the date of taking.

"THE COURT: Now, I knew Mr. O' Reilly's daddy, he was an outstanding lawyer and a good friend of mine, and I've known Mr. O'Reilly since he went to Fort Knox to be a shavetail with the Artillery out there in 1953, but I don't recognize him as a qualified fence builder who can give an opinion as to the cost of putting up a fence; it would be hearsay."

The petitioners contend that their offer provides us with a sufficient basis for review of the trial court's ruling. We disagree. The petitioners' offer of proof contains those facts to which the witness would have testified had he been accepted by the court as an expert witness. It omits, however, facts establishing the witness's qualifications to testify as a fence expert the threshold question and the question addressed by the trial court. Accordingly, we need not address the propriety of the trial justice's reference to his personal knowledge in assessing Mr. O'Reilly's qualifications. For under the posture of the record before us, if this were error it was harmless error.

An offer of proof is a litigant's tool for getting an answer to a question before the court after an objection to the question has been sustained. Trial counsel is permitted to state for the record what he or she believes the witness would have answered had the question been allowed. In Manning v. Redevelopment Agency, 103 R.I. 371, 238 A.2d 378 (1968), we outlined the nature of an offer of proof:

"While an offer of proof is sometimes defined as a statement of the purport of the expected evidence, proponents would do well to observe something more than the mere ritualistic formalism which the rule as stated may suggest is all that is demanded. Normally, and certainly if the stated purpose of providing the reviewing court with a clear picture of what was intended to be proved is to be realized, the offer should be reasonably specific, rather than general, Ostmo v. Tennyson, 70 N.D. 558, 296 N.W. 541; should include a statement of the facts to which the witness would testify, Douillard v. Woodd, 20 Cal.2d 665, 128 P.2d 6; should indicate the purpose and object of the proof offered, Callan v. Peck, 37 R.I. 227, 91 A. 34; and should establish that the evidence sought to be elicited is admissible. See Garneau v. Garneau, 63 R.I. 416, 428, 9 A.2d 15, 20, and Williams v. Rhode Island Hospital Trust Co., 88 R.I. 23, 46, 143 A.2d 324, 337." Id. at 379, 238 A.2d at 382-83.

The record before us in the instant case is devoid of facts showing Mr. O'Reilly's qualifications to testify about fence costs. The offer of proof states Mr. O'Reilly's opinion about the cost of the fence but is silent concerning his qualifications to give that testimony the sine qua non for the admissibility of this evidence.

We cannot speculate about the witness's qualifications in this area. Expertise in evaluating fence replacement costs is not necessarily contained in real estate appraisal qualifications. See Pittsburgh Terminal Warehouse & Transfer Co. v. City of Pittsburgh, 330 Pa. 72, 198 A. 632 (1938).

A trial court has wide discretion in ruling on the qualifications of a witness to testify as an expert. Morgan v. Washington Trust Co., 105 R.I. 13, 249 A.2d 48 (1969); Redding v. Picard Motor Sales, Inc., 102 R.I. 239, 229 A.2d 762 (1967). Since the record discloses no abuse in the exercise of this discretion, we will not disturb the trial court's ruling.

The second issue that petitioners press on appeal concerns the court's ruling that petitioners were not entitled to damages for an alleged loss of access to their remaining land. The court determined that since the condemned land abutting the residue of petitioners' land was for highway use as distinguished from freeway use petitioners were not deprived of access by the taking. ¹ We have held that highway abutters have access to and from state highways. Honig v. Director of Public Works, 106 R.I. 199, 258 A.2d 73 (1969). Whereas freeway abutters, on the other hand, lack this right. Id.; cf. Narciso v. State, 114 R.I. 53, 328 A.2d 107 (1974), noted in 10 Suffolk U.L.Rev. 938 (1976). See generally Stoebuck, The Property Right of Access Versus the Power of Eminent Domain, 47 Tex.L.Rev. 733 (1969).

It is manifest that a substantial denial of access is a compensable taking under both the United States and Rhode Island Constitutions. ² The petitioners argue that since the condemnation documents do not expressly guarantee access, they must be strictly construed as denying access. In support of this contention they argue that the case sub judice is controlled by our opinion in Sullivan v. Marcello, 100 R.I. 241, 214 A.2d 181 (1965). In Sullivan we affirmed the trial court's finding that the intended use for land taken in that case was for freeway use. We stated that a court must look at the four corners of the documents of taking to determine whether access has been appropriated. Id. at 251, 214 A.2d at 186. See Nasco, Inc. v. Director of Public Works, 116 R.I. 712, 360 A.2d 871 (1976).

In the case at bar, however, the written instrument of taking, describing what was taken, was not put into evidence and is not before us. ³ The trial justice made his decision based on the one statutory condemnation document before him, the plat of the land. That document indicated and the trial justice so held that access was preserved because the taken land directly adjacent to petitioners' remaining property was for a highway, not a freeway. If the condemnation documents that petitioners refer to in their brief do not assure them of access, then they have the burden of...