Solko v. State Roads Com'n of State Highway Admin.

• Decision Date: 01 September 1989
• Docket Number: No. 979,979
• Citation: 570 A.2d 373,82 Md.App. 137
• Parties: John D. SOLKO, et ux. v. STATE ROADS COMMISSION OF the STATE HIGHWAY ADMINISTRATION. ,
• Court: Court of Special Appeals of Maryland

Page 137

82 Md.App. 137

570 A.2d 373

John D. SOLKO, et ux. v.STATE ROADS COMMISSION OF the STATE HIGHWAY ADMINISTRATION.

No. 979, Sept. Term, 1989.

Court of Special Appeals of Maryland.

March 5, 1990.

Carl Harrison Lehman, Upper Marlboro, for appellants.

Henry F. Leonnig, Asst. Atty., Upper Marlboro (J. Joseph Curran, Jr., Atty. Gen. and Edward S. Harris, Asst. Atty. Gen., on the brief), Baltimore, for appellee.

Argued before ALPERT, ROSALYN B. BELL and WENNER, JJ.

ROSALYN B. BELL, Judge.

In this appeal we address a familiar situation where a property owner contends the State was not willing to pay adequate compensation in a quick-take condemnation proceeding.On April 6, 1987, the State Roads Commission of the State Highway Administration(the State) filed a Land Acquisition Petition for part of the property owned by John D. and Patti Ann Solko(the Solkos).The land was required in order to widen part of Maryland Route 197.The State deposited $22,200 as the estimated fair market value of the land taken.

The matter went to the Board of Property Review for Prince George's County(the Board).The Board held a hearing on August 6, 1987 and awarded the Solkos $65,974.Both parties noted their dissatisfaction with this result.A condemnation proceeding was filed on August 24, 1987 and amended on November 6, 1987.The amended petition increased the area of perpetual easement being acquired from .014 to .161 acres.The Solkos did not oppose the amendment and filed an answer to the amended condemnation petition on January 27, 1989.

The case was heard before a jury in the Circuit Court for Prince George's County in April of 1989.There was an initial question regarding the proper date for valuation of the land taken.The court found the operative date of valuation for all the land to be the date of the filing of the amended condemnation proceeding, November 6, 1987.The jury returned the inquisition for $30,700, $8,500 more than the State's estimated fair market value for the land.At that time, a counter claim was still pending, but was dismissed one week later, without prejudice.This appeal followed.This Court, sua sponte, ordered final judgment in the case under Rule 8-602(e).

On appeal, the Solkos contend:

--The court erroneously ruled that the date of valuation was November 6, 1987.

--The court erred by refusing to instruct the jury that the burden of proof in a quick-take case is on the condemnor.

--The court erred by refusing them surrebuttal.

--The court erred by permitting rebuttal testimony by one of the State's expert witnesses.

--The court erred by refusing their litigation expenses.

We disagree with the Solkos on all of these contentions and affirm the judgment of the trial court.

FACTS

In 1970, the Maryland-National Capital Park and Planning Commission and the Prince George's County Council enacted the Bowie-Collington Area Master Plan.The plan designated Route 197 as an arterial road which had been improved from Route 450 north to approximately a quarter-mile south of the Solkos' property; the improvements began again at Bowie State College, north of the Solkos' property.The condemnation proceedings were instituted against the Solkos because their property constituted part of the gap between these two areas already improved.

The Solkos purchased their property for $38,000 in 1984.The 5.186-acre parcel fronted on the west side of Route 197 and was zoned Rural Residential.At the April, 1989 trial the Solkos and the State agreed that the best use of the Solkos' property prior to the taking was development for detached single family dwellings.The parties disagreed, however, on the number of homes that could be built on the land.The State argued that, at most, two houses could be built, since the property fronted on a planned arterial highway, while the Solkos contended that five single family residential houses could be built on their parcel.

At trial, the State presented witnesses who testified to the characteristics of the area taken and its value.The Solkos' witnesses consisted of Casimir Bazis, who was their engineer, and Mr. Solko.In response to the Solkos' case, the State put on rebuttal witnesses, one of whom was Bruce Yoder.Mr. Yoder is an expert in the area of land planning; he testified to the cost of developing the Solkos' property.Melville Peters was another rebuttal witness for the State.Mr. Peters is an expert in the field of real estate appraisal and testified to the cost of developing the Solkos' property.His main point was that it was not economically feasible to subdivide the property.The trial court told the Solkos' attorney that he would be allowed to counter by recalling Mr. Solko as a surrebuttal witness, depending on the evidence presented.The trial judge later denied this request based on counsel's proffer of the specifics of Mr. Solko's testimony.

DATE OF VALUATION

The Solkos challenge the trial court's ruling that the date of valuation regarding the land acquired was November 6, 1987.They contend that the correct valuation date is the date of the trial, April, 1989, which would substantially increase the value of the land.The State, on the other hand, argues that the trial court was correct.

Both parties point to Md.Transp. CodeAnn. § 8-330(1977), as the governing provision.This section provides:

"If, within 1 year after payment is made under § 8-323 of this subtitle, the Commission fails to ascertain the entire amount to be paid for the property and acquire title to it by deed or condemnation or, within that same 1-year period, fails to file timely a petition for condemnation as required by the Maryland Rules, then the fair value of the property shall be the greater of the values determined as of:

"(1) The date the title to the property is acquired; and

"(2) The date the payment was made under § 8-323 of this subtitle."(Emphasis added.)

The Solkos contend that the State failed to comply with the part of the statute requiring it to "ascertain the entire amount to be paid" within one year of the filing date of the petition.Consequently, the Solkos assert that the trial date becomes the date of valuation.The State, however, argues that § 8-330 must be read within the context of the alternatives it sets forth.We agree with the State's reading of the alternatives.

The trial date becomes the valuation date only if the State fails to comply with both alternatives.The first alternative is payment and acquisition of title.The second alternative, the State continues, is "or within the same 1-year period, fails to file timely a petition for condemnation."The State argues that it did not fail to file a timely petition.The State has clearly fulfilled this second requirement since it filed both the original and the amended condemnation within one year of the original filing date of April 6, 1987.Thus, the State maintains that the date of the amended petition, November 6, 1987, is the proper valuation date for the property and not the date of trial.

The State reinforces its argument by referring to the Revisor's Note after § 8-330.The Revisor's Note states that § 8-330 was revised to conform with the Court of Appeals' interpretation of this section in two cases, one of which was State Roads Commission v. Orleans, 239 Md 368, 211 A.2d 715(1965).¹In Orleans, 239 Md. at 375, 211 A.2d 715, the Court said:

"A second reasonable reading of Sec. 18[of former Art. 89B] is that it gives the Commission one year to acquire title to and pay for the land taken by agreement with the owner or acquiescence in the Board's award and thirty days after the award of the Board, if the Commission is dissatisfied, or thirty days after the filing of notice of dissatisfaction by the owner, within which to file suit.On this reading of the section, the words 'as aforesaid' following the reference to the filing of suit would refer to the procedural provisions as to manner and time of filing suit of Rule U27."

Thus, the State argues that as long as it timely filed the condemnation petition and the amendment and the filing occurs within one year of the payment, then the date of value would normally be the date the original petition was filed, April 6, 1987 in this case.The trial court, however, moved the date of evaluation to November 6, 1987 when the State posted the additional money for the additional portion of the Solkos' land being "taken."The State does not contest the change of the date from April to November, 1987 and believes the November, 1987 date is correct.We agree with the State that this date, not the trial date, is the proper one for valuation.To hold otherwise would encourage one party or the other to delay the time of trial in "takings" suits to secure the advantage of an increase or decrease in the value of the property pendente lite.²

JURY INSTRUCTION

In their brief, the Solkos baldly claim that the trial court erred by refusing to instruct the jury that the burden of proof in a "quick-take" condemnation case is on the condemnor.They offer no direct support for this statement and arguably have waived it.Nonetheless, because this is an important issue which we have not previously addressed, we explain why we disagree with the Solkos.

First, the Solkos contend that the burden of proof of the value of the property taken is on the State since they have the right to open and close the case.In Harford Building Corp. v. City of Baltimore, 58 Md.App. 85, 90, 472 A.2d 479, cert. denied, 300 Md. 153, 476 A.2d 722(1984), Judge Getty, formerly of this Court, quoted 1 Thompson on Trials, § 247:

" 'In a proceeding to condemn land for public uses and for the assessment of the compensation to be made to the landowner, the petitioner holds the affirmative of the issue, and consequently has the right to begin and reply, both in the introduction of evidence and in the argument to the jury.' "

Harford clearly established the State's...