Winston v. United States

• Decision Date: 04 May 1965
• Docket Number: No. 19106.,19106.
• Citation: 342 F.2d 715
• Parties: Norman K. WINSTON, David Muss, Joshua A. Muss, Helene Muss Harpman, et al., Appellants, v. UNITED STATES of America, Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

342 F.2d 715 (1965)

Norman K. WINSTON, David Muss, Joshua A. Muss, Helene Muss Harpman, et al., Appellants, v. UNITED STATES of America, Appellee.

No. 19106.

United States Court of Appeals Ninth Circuit.

March 2, 1965.

Rehearing Denied May 4, 1965.

Barry Brannen, Beverly Hills, Cal., for appellants.

Ramsey Clark, Asst. Atty. Gen., Roger P. Marquis, Robert M. McKee, Edmund B. Clark, Attys., Dept. of Justice, Washington, D. C., Francis C. Whelan, U. S. Atty., Los Angeles, Cal., for appellee.

Before POPE and BARNES, Circuit Judges, and THOMPSON, District Judge.

THOMPSON, District Judge:

This is a Wherry Act condemnation case. The housing project in question, known as the Bayview Project, situated near the San Diego Naval Base, was completed in December, 1954. The federal legislation under which the project was constructed and the legal relationships created for the purpose of the construction and subsequent leasing, control, operation and maintenance of the housing project are identical with those which have been fully discussed, described and analyzed in other Wherry Act condemnation cases. See, for example, Fairfield Gardens, Inc. v. United States (9 CCA 1962), 306 F.2d 167; Likens-Foster Monterey Corporation v. United States (9 CCA 1962), 308 F.2d 595; United States v. Certain Interests in Property (2 CCA 1964), 326 F.2d 109. Here, again, the leasehold interests of Appellants, subject to the existing FHA insured mortgages, have been condemned pursuant to the mandatory provisions of the Capehart Act (42 U.S.C. § 1594). The date of taking was June 1, 1959, and the issue, tried before a jury, was just compensation for the interests taken.

The ground rules for the jury trial were laid by a pre-trial order entered after comprehensive pre-trial proceedings. Pertinent portions of this order are quoted in the margin.¹ After entry of the pre-trial order, a separate court trial of the "windfall" issue was held pursuant to stipulation.² The Court entered findings of fact and found that there was a windfall. The findings are quoted in the margin.³ Finally, a Supplemental Pre-Trial Order was entered⁴ and the stake was set for the jury trial.

COURT'S COMMENTS TO THE JURY

Appellants' first Specification of Error attacks a comment made by the trial court in the course of its instructions to the jury. The particular comment, a portion of eleven transcript pages of comments, was:

"Wherry legislation had for its purpose the providing of low-cost housing for military and Naval personnel and for civilian personnel employed by the armed forces. The purpose of the legislation was to make the building and operation of Wherry housing attractive to sponsors, builders and operators. It was not the purpose of the legislation to drop any vast amount of money into the pockets of the sponsors. You will have to decide whether, as contended by the defendant owners, upon the completion of the project and four or five years\' operation it was then worth in excess of two million dollars as fair market value, or whether, as contended by the plaintiffs, it had a value of two hundred fifty thousand dollars to two hundred eighty thousand dollars plus the reserve fund which defendants had retained, or whether it had some other amount as fair market value.

"This is the end of my comments. You may disregard them entirely. I am certainly not telling you what kind of verdict to bring in, in this case. I am trying to give you some help in how to approach this problem. You may disregard these comments entirely, because they are not instructions of law."

In addition to the concluding remarks quoted, the Court had also prefaced its comments on the evidence with a like warning that the jurors were the sole judges of the facts and might entirely disregard the comments. Before the jury retired for deliberation, Appellants excepted to the comment, and after the jury retired, by motion, sought to have the Court recall the jury for reception of additional evidence and clarification of the instructions relevant to the comment.

In the context of this trial, we do not consider the comment to be wrong, unfair or prejudicial. Both parties had elicited considerable testimony regarding the purpose of the Wherry legislation. Such purpose, and the Federal Housing Administration policies implementing the purpose, were treated as questions of fact to be considered by the jury for their impact upon issues of the probability of approved rental increase schedules and mandatory garage occupancy with each unit — issues which had been injected into the case by Appellants. Appellants rely upon a criminal case, Quercia v. United States, 1933, 289 U.S. 466, 53 S. Ct. 698, 77 L.Ed. 1321, for their conclusion that the verdict should be reversed because of the trial judge's allusion to "any vast amount of money" in his factual comment. In Quercia, the trial judge, referring to the defendants' testimony, had said: "I think that every single word that man said, except when he agreed with the Government's testimony, was a lie." Before the Supreme Court, the defendant was assisted by the Solicitor General's confession of error, and the Court held the flat statement to be not an analyzation of the evidence and not a fair comment, but a hostile, argumentative denunciation of the defendant's testimony. We agree with Appellee that this civil case falls within the rule enunciated in Doyle v. Union Pacific Railroad Co., 1893, 147 U.S. 413, 13 S.Ct. 333, 37 L.Ed. 223:

"It is true that the remarks made by the judge must have indicated to the jury that his own view was against the plaintiff\'s right to recover. But it has often been held by this court that it is not a reversible error in the judge to express his own opinion of the facts, if the rules of law are correctly laid down, and if the jury are given to understand that they are not bound by such opinion. Baltimore & P. R. R. Co. v. Fifth Baptist Church, 137 U.S. 568, 11 Sup.Ct.Rep. 185, 34 L.Ed. 784; 34:784; Simmons v. United States, 142 U.S. 148, 12 Sup.Ct.Rep. 171, 35 L.Ed. 968."

Viewing the comment as a whole, we think the trial court here specifically left it to the jury's judgment to return any verdict within the entire scope of the opinion testimony of the valuation experts.

To buttress their assertion of error, Appellants quote copiously from the record to show that outside the presence of the jury, the trial court had plainly announced its opinion that Appellants' claims for just compensation were exorbitant. A trial court's comments outside the jury's hearing are irrelevant.

INADEQUACY OF VERDICT

The jury returned a verdict of $692,300 as just compensation for the leasehold interests condemned, subject to outstanding mortgages of $6,549,937. The most liberal government appraiser's opinion of value was $281,511 as contrasted with the top opinion of Appellants' appraisers, $2,111,063. Appellants assign as error that the award was grossly inadequate. Unless we conclude that the jury's verdict was based on opinion testimony of an expert witness whose stated reasons for his opinion were "patently unsound and without support in the record" United States v. Certain Interests in Property (4 CCA 1951), 296 F. 2d 264; Likens-Foster Monterey Corporation v. United States (9 CCA 1962), 308 F.2d 595, this case is governed by the principle adopted by this Court in Simmonds v. United States (9 CCA 1952), 199 F.2d 305, and United States v. Johnson (9 CCA 1960), 285 F.2d 35. "The jury's award of $1,820,000 is supported by competent evidence and is within the range of expert testimony, and, therefore, will not be disturbed on appeal." As will be shown in our further discussion, we believe that the reasons advanced by the experts were not patently unsound and were supported by a record free from reversible error. The jury award within the scope of the expert opinions is not inadequate.

EVIDENCE OF OTHER WHERRY SALES

Following paragraph 6 of the Pre-Trial Order (supra, Footnote 1), the trial court permitted the government experts to testify to information they had obtained regarding the price received for the sale of all the capital stock of two other Wherry Housing Act lessee corporations and of the income experience of these corporations before the sales, and also with respect to two projects constructed under Section 608 of the federal housing legislation. The projects so relied upon were Buena Vista Gardens, San Diego, California; Park La Jolla, San Diego, California; Barksdale Airforce Base, Shreveport, Louisiana; and Quantico Marine Base, Quantico, Virginia. The government experts relied upon this information as a guide to a proper multiplier to be used in capitalizing net income after debt service to arrive at an opinion of the fair market value of Appellants' interest in the Bayview Project as of the date of taking. Appellants objected to, and assign as error, the reception of this testimony, affirming that it represents a patently unsound basis for expert opinion.

In Fairfield Gardens, supra, this Court carefully reserved its opinion as to whether the admission of such testimony would be an abuse of the trial court's discretion. Now that the problem is presented, we find the reasoning of the Court in United States v. Certain Interests in Property (2 CCA 1964), 326 F.2d 109, most persuasive. The factors relied upon there to sustain the use of such information as a basis for expert opinion are equally applicable here and are sustained by the evidence. The evidence is uncontradicted that the market for an investment of the kind here involved is nationwide in scope. The factors affecting the risk of an assured annual minimum net income for forty-six years or more were, in the opinion of the government experts, the prime determinant of market value. Their reasons for using this approach to value were not patently ridiculous and unsound and the Court did not abuse its discretion in permitting the testimony and in limiting...