Sill Corporation v. United States

• Decision Date: 27 April 1965
• Docket Number: No. 7607.,7607.
• Citation: 343 F.2d 411
• Parties: The SILL CORPORATION, Appellant, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

343 F.2d 411 (1965)

The SILL CORPORATION, Appellant, v. UNITED STATES of America, Appellee.

No. 7607.

United States Court of Appeals Tenth Circuit.

March 4, 1965.

Rehearing Denied April 27, 1965.

COPYRIGHT MATERIAL OMITTED

John J. Geraghty (Josiah G. Holland, Denver, Colo., William VanDercreek, Dallas, Tex., and Roland Boyd, on brief), for appellant.

Raymond N. Zagone, Washington, D. C. (Ramsey Clark, Washington, D. C., B. Andrew Potter, David A. Kline, Jr., Oklahoma City, Okl., Roger P. Marquis, Robert M. McKee, Washington, D. C., on brief), for appellee.

Before MURRAH, Chief Judge, and PHILLIPS and LEWIS, Circuit Judges.

MURRAH, Chief Judge.

The Sill Corporation, owner-sponsor of a Wherry housing project (See 63 Stat. 570, 12 U.S.C. § 1748 et seq.) appeals from a judgment on a jury verdict awarding it "just compensation" for the taking of its interest in the project. The Owner's interest was taken pursuant to the amended provisions of the Capehart Act See 70 Stat. 1111, 42 U.S.C. (1952 ed., Supp. V), § 1594(b), whereunder the Secretary of Defense was directed to acquire all Wherry projects where Capehart housing had been approved and constructed.¹ Under the Wherry Act, the Federal Housing Authority (FHA) was authorized to insure mortgages up to 90 percent of the estimated cost of construction. All mortgagor-owners were subject to FHA regulations in such matters as rents, charges, capital structure, rate of return and methods of operation. See Buena Vista Homes, Inc. v. United States (CA 10), 281 F.2d 476.

The Sill Corporation was formed as a sponsor solely to take advantage of the unique economic benefits available under the Act. It constructed 500 such rental units on 122 acres of leased Government property near Ft. Sill, Oklahoma. The ground lease, drawn in 1950, was for 75 years at an annual rental of $100. It provided that title to all improvements constructed by the sponsor remained in its name for the duration of the lease, but upon expiration or termination, the improvements became the sole property of the Government, unless the sponsor elected to remove them and restore the premises. Financing of the project was accomplished by an FHA insured mortgage of $4,300,000 for 34 years from the date of its issuance in October, 1951.

Acting under authority of the amended provisions of the Capehart Act, the Government instituted these proceedings, took possession of the property and, at the same time, assumed the unpaid mortgage balance of $3,822,104.55.

On pretrial, the parties apparently agreed that capitalization of net income was an appropriate method for determining the fair market value of the Owner's interest in the project. But the parties disagreed on the factors to be taken into account in determining the net income to be capitalized. The Government took the position that fair market value was determinable by capitalizing net income after deduction of debt service, i. e., the cost of mortgage amortization and insurance. The Owner contended for capitalization of net income before deduction of debt service. Paragraph 21 of the proposed pretrial order recited that "the following methods shall be considered as proper approaches to the determination of the value of the estate being condemned:

"(a) Market data; determined by comparison with actual comparable sales of like property prior to September 1, 1959.

"(b) Capitalization of net income before debt service.

"(c) Capitalization of net income after debt service."

The Owner first objected to paragraph 21 in its entirety, specifically complaining that subparagraph (c) was improper because it permitted the jury to choose between capitalization before or after deduction of debt service. However, the Owner finally acquiesced in the pretrial order, provided it was not restricted in any way on cross-examination to demonstrate the "mathematical fallacy" of subparagraph (c) as a principle of capitalization of income to arrive at fair market value as a measure for just compensation. A parenthetical addendum providing, "with full right of proper cross-examination covering the above approaches." was attached to subparagraph (c), and the parties proceeded to trial under the pre-trial order as a part of the trial blueprint.²

Upon trial to the Jury, the parties were permitted without objection to produce expert testimony of fair market value based upon their respective theories of net income for purposes of capitalization. Making application of the Government's theory of capitalization of net income or "cash flow", two appraisal experts testified that the fair market value of the estate taken was $294,000 and $302,000, respectively.³ Applying the Owner's theory for determining net income, its four appraisers testified that the fair market value of the estate taken was $1,100,000, $1,111,000, $1,200,000 and $1,379,895, respectively.⁴ Each of the appraiser-witnesses was cross-examined extensively, without let or hindrance, concerning his theory of evaluation.

Consistent with its pretrial order, the Court specifically instructed the Jury, "All of the expert witnesses for both parties have used the capitalization of income approach and all have applied this approach in one or both of the following methods of capitalization:

"The projected net income, after payment of fixed charges, all expenses, and the annual amount required by the commitment for the reserve for replacements fund, and before allowance for depreciation and debt service, which includes principal and interest payments and the mortgage insurance premium is capitalized, producing the capitalized value of the net income, and thus the indicated value of the conditional ownership in the leasehold estate. The indicated value of the equity, that is, the interest of the sponsors or defendant here as encumbered by the mortgage, is then determined by deducting from the capitalized value of the net income the unpaid balance of the mortgage.

"The projected net income, after payment of fixed charges, all expenses, the required payment to the reserve for replacement, the debt service, which includes principal, interest and mortgage insurance premiums, but before any allowance for depreciation, is capitalized producing the capitalized value of the net cash flow and, therefore, the indicated capitalized value of the ownership interest which earns such net cash flow.

"You will note that the words `indicated value' are used to define the results reached by these methods of capitalization. This `indicated value' may or may not be the fair market value. This approach, under either method, contemplates that the seller would receive and the buyer would give the price indicated provided that the income is free and clear of further charges and free and clear of further payments other than the purchase price. If there are charges in addition to that allowed in reaching the net income before debt service, or the net income after debt service, or if there are payments required other than the purchase price, further adjustments may be required."

We must assume, of course, that the Jury understood and intelligently applied these instructions. In oral argument Owner's counsel exorted the Jury not to compromise the divergent theories on net income capitalization, but to accept one and reject the other. The Jury apparently accepted counsel's plea and, by its verdict of $302,000, obviously chose the Government's theory of net income for capitalization purposes.

The Owner now strenuously complains of that part of the Court's instructions which permitted the Jury to determine fair market value by capitalization of net income after deduction of debt service. Although the Court's instructions were submitted to the parties and suggestions solicited, neither party objected to the submission of the choice of methods for determining net income for capitalization purposes.⁵ The Owner did request the Court to instruct the Jury that "payments on the principal of the mortgage indebtedness * * * are not an expense item and to treat them as such would improperly reduce the evaluation." It is not entirely clear whether this request was intended to challenge the Court's instructions on choice of capitalization theories. If so, we seriously doubt whether it meets the requirements of Rule 51, F.R.Civ.P. See Downie v. Powers, 9 Cir., 193 F.2d 760. But, even so, we think the challenge comes too late in view of the apparent pretrial agreement of the parties on the blueprint of the lawsuit embodying their respective theories of income capitalization and the introduction without objection of testimony in support of those respective theories. No one should be heard to object to an instruction on the law of the case on which it was tried and submitted by agreement of the parties. We ought not to disturb the Jury's verdict unless we are convinced that it is made to rest upon a palpably erroneous rule of capitalization used to measure fair market value for the purposes of just compensation.

We know, of course, that the law is not wedded to any particular formula or method for determining fair market value as the measure of just compensation. See: United States v. Miller, 317 U.S. 369, 63 S.Ct. 276, 87 L.Ed. 336; and United States of America v. Sowards et al. (10 C.A.), 339 F.2d 401. It may be based upon comparable sales, reproduction costs, capitalization of net income, or an interaction of these determinants. The parties agreed in this case that the capitalization of income is the most satisfactory method. The parties also agree, as they must, that the test of fair market value is the amount of money a willing buyer would pay for the future net income, when computed at its present value.

It is indeed unfortunate that the divergent theories of income capitalization on which this case was submitted to the Jury inevitably result in a wide disparity on the amount of money a willing buyer would pay for income producing property. Under the two...