Dept. of Transportation v. Cheriha, LLC ( 2015 )

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DEPARTMENT OF TRANSPORTATION v.
CHERIHA, LLC, ET AL.
(AC 36041)
Sheldon, Keller and Prescott, Js.
Argued October 28, 2014—officially released January 27, 2015
(Appeal from Superior Court, judicial district of New
Britain, Hon. Arnold W. Aronson, judge trial referee.)
Michael J. Dyer, with whom was Ryan P. Barry, for
the appellant (named defendant).
Eileen Meskill, assistant attorney general, with
whom, on the brief, was George Jepsen, attorney gen-
eral, for the appellee (plaintiff).
Opinion
SHELDON, J. The principal issue in this appeal is
whether the trial court erred in reassessing the amount
of damages to which the defendant Cheriha, LLC,1 was
entitled as just compensation for the taking of its 0.44
acre parcel of commercial property in New Britain,
which the plaintiff, the Department of Transportation,2
had condemned for the purpose of reconstructing an
adjacent roadway. The plaintiff initially assessed dam-
ages for the taking in the amount of $125,000. The defen-
dant thereafter appealed to the Superior Court, alleging
that the plaintiff’s assessment was inadequate. After
a hearing on the defendant’s claim, Hon. Arnold W.
Aronson, judge trial referee, awarded the defendant
damages in the amount of $243,840. The defendant
appeals from that judgment, claiming that the trial court
made several legal errors in admitting or evaluating
certain evidence in the course of reaching its decision.
We affirm.
The following facts and procedural history are rele-
vant to the disposition of this appeal. The subject prop-
erty is a triangle shaped parcel of land, approximately
0.44 acres in total area, located in the northeastern
part of the downtown district of New Britain at the
intersection of Beaver Street and Washington Street.
The property is zoned B-3, Secondary Business District,
which permits residential and commercial use.3 On the
date of the taking, improvements on the property con-
sisted of a free-standing masonry building, approxi-
mately 2032 square feet in size, that included an
attached, three bay automotive repair garage with sup-
porting offices and a sales area. Prior to the taking, the
property was occupied by the defendant’s business,
Cars R Us Used Cars Sales & Service.
On July 14, 2011, the plaintiff filed in the Superior
Court a notice of condemnation and an assessment of
damages for the taking in the amount of $125,000. On
January 26, 2012, under the same docket number, the
defendant filed an application for a reassessment of
damages pursuant to General Statutes § 13a-76. A hear-
ing on the defendant’s application took place over the
course of two days, beginning on January 25 and ending
on February 25, 2013. The court heard testimony at
the hearing from the defendant’s real estate appraisers,
Christopher Kerin and Jeff Arotsky, and from the plain-
tiff’s appraiser, John LoMonte. Mohammed Cheriha, the
former owner of the property, also testified as the per-
sonal representative of the defendant.
Using a sales comparison approach, the defendant’s
first appraiser, Kerin, determined that the fair market
value of the property at the time of the taking was
$320,000. Kerin based his determination on recent sales
of four properties in New Britain that he considered
comparable to the subject property. The defendant’s
second appraiser, Arotsky, also using a sales compari-
son approach, concluded that the fair market value of
the property was $340,000. Arotsky based his conclu-
sion on the recent sales of four other local properties
that he considered comparable to the subject property,
although no such property was in New Britain. Cheriha
testified as to his purchase of the property in 1998, his
subsequent use of the property for his business, the
defendant LLC, and his personal opinion as to the fair
market value of the property. He opined that the fair
market value of the property at the time of its taking
was approximately $850,000.
The plaintiff’s appraiser, LoMonte, also employed a
sales comparison approach to assess the value of the
property. Using three sales of properties in New Britain
that he considered to be comparable to the subject
property, LoMonte concluded that the fair market value
of the property at the time of its taking was approxi-
mately $125,000.
In his memorandum of decision dated August 7, 2013,
Judge Aronson found that two of the properties used
as comparables by the testifying experts were most
similar to the subject property. The first such property,
on which Kerin had relied, was a 0.39 acre parcel with
a three bay automotive repair garage in New Britain,
which had sold for $337,000, or $167.16 per square foot
in September, 2010. The second such property, on
which LoMonte had relied, was a 0.4 acre parcel with
an automotive garage, also in New Britain, which had
sold for $300,000 dollars, or $73.96 per square foot, in
October, 2009. Based upon the sales of these similar
properties, at what he calculated to be the average unit
price of $120 per square foot, Judge Aronson concluded
that the fair market value of the subject property at the
time of its taking was $243,840. Judge Aronson thereby
increased by $118,400 the amount of damages awarded
to the defendant. Thereafter, the defendant filed this
appeal challenging the court’s judgment on three
grounds. The defendant claims: first, that the court
improperly precluded one of its witness, Dr. Sheik
Ahmed, from testifying personally as to a letter of intent
to purchase the property that he had prepared seven-
teen months prior to the taking; second, that the court
should not have considered LoMonte’s appraisal
because he listed the incorrect zone for the property
in his report; and third, that the court failed to give
proper weight to Cheriha’s personal opinion as to the
fair market value of the property. We reject each of the
defendant’s claims and, thus, affirm the judgment of
the trial court.
We begin by setting forth certain relevant legal princi-
ples. ‘‘The owner of land taken by condemnation is
entitled to be paid just compensation. Conn. Const.,
art. I, § 11.’’ Lynch v. West Hartford, 167 Conn. 67, 73,
355 A.2d 42 (1974). ‘‘The paramount law intends that
the condemnee shall be put in as good condition pecu-
niarily by just compensation as he would have been in
had the property not been taken.’’ Colaluca v. Ives, 150
Conn. 521, 530, 191 A.2d 340 (1963). ‘‘[T]he amount that
constitutes just compensation is the market value of
the condemned property when put to its highest and
best use at the time of the taking.’’ (Internal quotation
marks omitted.) Northeast Ct. Economic Alliance, Inc.
v. ATC Partnership, 256 Conn. 813, 828, 776 A.2d 1068
(2001). ‘‘Generally speaking, market value is the price
that would in all probability—the probability being
based upon the evidence in the case—result from fair
negotiations, where the seller is willing to sell and the
buyer desires to buy.’’ (Internal quotation marks omit-
ted.) Budney v. Ives, 156 Conn. 83, 88, 239 A.2d 482
(1968).
Section § 13a-76 provides for a reassessment of dam-
ages where the property owner claims the amount of
compensation assessed for the taking is insufficient.
Pursuant to § 13a-76, the court ‘‘shall hear the applicant
and the commissioner, may view the land, and shall
take such testimony as the court or . . . judge trial
referee deems material and shall thereupon reassess
such damages . . . .’’ See Branford v. Santa Barbara,
294 Conn. 785, 795–96, 988 A.2d 209 (2010). In condem-
nation hearings, the trial court, ‘‘sitting as a court [of]
appeals . . . is more than just a trier of fact or an
arbitrator of differing opinions of witnesses. He is
charged by the General Statutes and the decisions of
[our Supreme Court] with the duty of making an inde-
pendent determination of value and fair compensation
in the light of all the circumstances, the evidence, his
general knowledge and his viewing of the premises.’’
Birnbaum v. Ives, 163 Conn. 12, 21, 301 A.2d 262 (1972).
I
The defendant first claims that the court erred in
precluding its witness, Ahmed, from testifying person-
ally to a letter of intent to purchase the property for
$850,000, which he had prepared on or about February
3, 2010, approximately seventeen months prior to the
taking. More specifically, the defendant claims that the
court erred in determining that the proffered evidence
required expert testimony, and thus in concluding that
it could not be presented through Ahmed because he
lacked sufficient expertise to testify as an expert in
property valuation. The defendant argues on appeal
that the court’s preclusion of Ahmed’s testimony was
a prejudicial error, because it prevented it from pre-
senting its theory of the case, namely, that Ahmed’s
interest in the property for retail use4 and related estima-
tion of its value for that purpose demonstrated that the
property was worth considerably more than it had been
appraised for by the plaintiff, or even by its own experts,
all of whom had based their appraisals on the property’s
current use for automotive-related services. The defen-
dant acknowledges that Ahmed’s letter of intent was
subsequently admitted into evidence as a partial basis
for Cheriha’s testimony on fair market value. It claims,
however, that the evidence, so presented, carried less
weight than it would have had it been presented person-
ally by Ahmed. In addition, the defendant argues that
Ahmed’s testimony as to his own intended use of the
property in 2010, which was ‘‘different than that which
[the defendant’s] experts considered to be [its] highest
and best use,’’ could have assisted the trial court in
‘‘determining how the property could be used most
advantageously.’’ We are not persuaded.
We review the defendant’s claim in accordance with
certain well settled legal principles. The court has broad
discretion in determining what evidence is properly
allowed in an eminent domain proceeding. See West
Haven v. Norback, 263 Conn. 155, 172, 819 A.2d 235
(2003). ‘‘[A] trial court may exercise its discretion with
regard to evidentiary rulings, and the trial court’s rulings
will not be disturbed on appellate review absent abuse
of discretion. . . . In our review of these discretionary
determinations, we make every reasonable presump-
tion in favor of upholding the trial court’s ruling. . . .
Evidentiary rulings will be overturned on appeal only
where there was an abuse of discretion and a showing
by the [appellant] of substantial prejudice or injustice.’’
(Internal quotation marks omitted.) Cote v. Machabee,
87 Conn. App. 627, 630, 866 A.2d 639 (2005). A party
seeking a new trial because of an improper evidentiary
ruling has ‘‘the burden of demonstrating that the error
was harmful. . . . When determining that issue in a
civil case, the standard to be used is whether the errone-
ous ruling would likely affect the result.’’ (Internal quo-
tation marks omitted.) Washington v. Christie, 58
Conn. App. 96, 100, 752 A.2d 1127, cert. denied, 254
Conn. 906, 755 A.2d 884 (2000).
Evidence in eminent domain proceedings consists
primarily of the opinions of experts who are well
informed on the subject of property valuation. ‘‘The
role of an expert witness is to furnish the trier with
special guidance drawn from his or her particular train-
ing, knowledge or experience.’’ DiBella v. Widlitz, 207
Conn. 194, 202, 541 A.2d 91 (1988) (expertise in property
appraisal generally is predicated on specialized training
coupled with study of subject property to determine its
value). A property owner is also allowed to testify to
the value of his own property on the theory that he has
unique knowledge with respect to its value by virtue
of his ownership. See Misisco v. La Maita, 150 Conn.
680, 684, 192 A.2d 891 (1963). Property ownership usu-
ally entails knowledge of the original price paid for
the property, of improvements that have been made
subsequent to its purchase, and of the current condition
of the property. On the basis of such knowledge, the
owner, although a layperson, is deemed to have a suffi-
cient basis in personal experience to support an opinion
about the property’s value that may assist the court in
making its determination on that subject.
In this case, the defendant asserts that Ahmed’s prof-
fered testimony should have been admitted because it
related solely to the fact of Ahmed’s intended purchase
of the property for $850,000. It further argues that such
testimony should not have been excluded as an inadmis-
sible opinion of a nonexpert nonowner as to the proper-
ty’s value.
The defendant’s argument is belied by the record in
this case, which discloses that the defendant sought to
introduce Ahmed’s testimony regarding his preliminary
offer as expressed in the letter of intent on the basis
that it was ‘‘indicative of the fair market value’’ of the
property. In addition, in its offer of proof, the defendant
suggested that Ahmed should be permitted to testify
because of his extensive background in the buying and
selling of commercial properties.5 In light of this, it is
clear that although the defendant identified Ahmed as
a fact witness, it predicated the usefulness of his testi-
mony on his asserted ability to assess the value of the
property as an expert. Accordingly, it was not an abuse
of discretion for the court to preclude his testimony on
the basis that he lacked the expert qualifications to
do so.
We also reject the defendant’s argument that Ahmed’s
ability to testify to facts establishing the highest and
best use of the property would have assisted the trier
of fact in determining the value of the property, and
thus that it should have been admitted. There are two
problems with the defendant’s assertion. First, as the
plaintiff points out, Ahmed’s proposed use of the prop-
erty, expressed seventeen months prior to the taking,
is speculative. The record reveals that there was no
firm offer to purchase the property for that amount, let
alone an actual agreement between Ahmed and the
defendant to purchase the property.6 Second, the high-
est and best use of a property, again, is a concept that
is used by expert appraisers; see United Technologies
Corp. v. East Windsor, 262 Conn. 11, 25, 807 A.2d 955
(2002); and Ahmed was never sufficiently shown to
have any expertise on that subject.
Moreover, there is no evidence that the court’s ruling
impacted the outcome in this case. As indicated pre-
viously, the property owner, Cheriha, testified to the
letter of intent and Ahmed’s apparent willingness, based
upon it, to enter into discussions concerning the possi-
ble purchase of the property for $850,000. The letter
was admitted into evidence as a full exhibit at that time.
II
Next, the defendant challenges the trial court’s deci-
sion to base its reassessment of the fair market value
of the property in part on LoMonte’s sales comparison
analysis. We disagree.
‘‘Ultimately, the determination of the value of the
property [is] a matter of opinion and depend[s] on the
considered judgment of the [trial court], taking into
account the divergent opinions expressed by the wit-
nesses and the claims advanced by the parties.’’ Moss
v. New Haven Redevelopment Agency, 146 Conn. 421,
425, 151 A.2d 693 (1959). Accordingly, we review the
court’s findings under the highly deferential, clearly
erroneous standard of review. ‘‘[W]e do not examine
the record to determine whether the trier of fact could
have reached a conclusion other than the one reached.
Rather, we focus on the conclusion of the trial court,
as well as the method by which it arrived at that conclu-
sion, to determine whether it is legally correct and factu-
ally supported. . . . A finding of fact is clearly
erroneous when there is no evidence to support it . . .
or when although there is evidence in the record to
support it, the reviewing court on the entire evidence
is left with the definite and firm conviction that a mis-
take has been committed.’’ (Citation omitted; internal
quotation marks omitted.) St. Joseph’s Living Center,
Inc. v. Windham, 290 Conn. 695, 706–707, 966 A.2d
188 (2009).
With these principles in mind, we address the defen-
dant’s claim. The defendant argues that LoMonte’s
method of determining the fair market value of the
property was inherently flawed because he mistakenly
indicated in his appraisal report that the property is
located in a T Residential District zone, when in fact
the property is located in a B-3 Secondary Business
District zone. More particularly, the defendant asserts
that ‘‘given the incorrect zoning, [LoMonte] neglected
to consider a whole body of comparable sales that
would have had higher property values and would have
been comparable to the subject property.’’ Thus, he
argues, ‘‘the court’s consideration of his sales compari-
son analysis was clearly erroneous.’’7 The defendant’s
argument lacks merit.
At trial, LoMonte acknowledged that he incorrectly
identified the zone of the property in his report.
LoMonte testified, however, that the error had no
impact on his sales comparison analysis because the
criteria he used to select comparables was the highest
and best use of the property, which he determined was
its continued use for automotive related services.
Accordingly, LoMonte testified that he selected proper-
ties that were commercially zoned and adapted for simi-
lar purposes.8
The court adopted the sales comparison approach to
assess the value of the property.9 The court selected
one property in LoMonte’s appraisal that it deemed
comparable to the subject property: an automotive
garage located on 0.4 acres in a B-1 Business District
zone that sold for $300,000 in October, 2009. The court
also relied on a sale of property identified by the defen-
dant’s expert, Kerin, a three bay automotive repair
garage situated on 0.39 acres located in a B-3 Secondary
Business District zone that sold for $337,000 in Septem-
ber, 2010. On the basis of these two sales, the court
concluded that a fair determination of the market value
of the property on the date of the taking was $243,840.
To the extent that the defendant argues that
LoMonte’s sales comparison improperly excluded other
legally conforming potential uses for B-3 properties and,
thus, the court’s reliance on limited aspects of his report
somehow tainted the court’s valuation, the defendant
stands on weak footing. Here, the court found that the
defendant’s own experts, like LoMonte, narrowed the
highest and best use of the property to automotive
related purposes, thus the defendant’s claim with
respect to LoMonte’s allegedly failed methodology is
strained at best.10 Moreover, the sales comparables that
the court ultimately relied on to reach an opinion as to
the fair market value of the property were both commer-
cially zoned and put to similar use for automotive
related purposes.
Although LoMonte incorrectly referred to zone T in
his report, he identified the existing use of the subject
property and found comparable properties based on
their use for similar purposes. In so doing, he used a
methodology that was similar to that of the defendant’s
own experts. ‘‘The [court] was at liberty to accept and
give effect to the testimony of . . . the witnesses as
he believed to be helpful to him, and to so much of the
recognized methods employed by the expert witnesses
as a basis for their testimony as he considered most
applicable to the situation before him.’’ Moss v. New
Haven Redevelopment Agency, supra, 146 Conn. 425.
The court credited certain aspects of LoMonte’s testi-
mony that it deemed credible and reliable, weighed the
evidence and reached an independent determination as
to the property’s value. ‘‘There is nothing to show that
in determining the value of the [defendant’s] land the
[trial court] misapplied or overlooked, or gave a wrong
or improper effect to, any test or consideration, which
it was his duty to regard.’’ (Internal quotation marks
omitted.) A & M Realty v. Dahms, 217 Conn. 95, 101,
584 A.2d 466 (1991). On the basis of the record before
us, we do not find that the court erred in considering
LoMonte’s report and reaching its determination as to
the value of the property utilizing certain elements of
that report.
III
Last, the defendant claims the court erred in its valua-
tion because it did not consider Cheriha’s testimony.
With respect to the court’s purported lack of consider-
ation, the defendant points to the absence of any
explicit reference to his testimony in its memorandum
of decision. We reject the defendant’s claim.
Cheriha testified to his acquisition of the property in
1998 and its subsequent use as a location for his busi-
ness. In addition, the court, over the plaintiff’s objec-
tion, permitted Cheriha to testify to offers that had been
made on the property by three different individuals
going back as far as 2007, including Ahmed’s aforemen-
tioned letter of intent. Cheriha testified that he believed
the fair market value of the property at the time of the
taking in July, 2011, was $850,000—a figure he based
in part on Ahmed’s letter of intent and his own prior
sale of two other gas stations, one in New Britain and
the other in Vernon. The $850,000 sum was considerably
higher than the value expressed by the defendant’s
experts, Kerin and Arotsky, who assessed the value of
the property at $320,000 and $340,000, respectively.
‘‘It is true that the trier must consider each factor
which may reasonably affect the value of the property,
as the [defendant] maintains, but it is not essential that
each element be meticulously recited in the memoran-
dum.’’ McDermott v. New Haven Redevelopment
Agency, 184 Conn. 444, 446, 440 A.2d 168 (1981). Our
rules of practice require only that the court recite its
conclusion and the factual basis therefor. See Practice
Book § 6-1 (a). The facts found and the conclusions
reached must be adequate to support the judgment.
Garofalo v. Argraves, 147 Conn. 685, 687, 166 A.2d 158
(1960). Contrary to the defendant’s assertion, there is
no requirement that the trial court report in its decision
the evidence adduced at trial.
In the present case, the court issued a comprehensive
decision describing the basis for its independent deter-
mination as to the fair market value of the property.
The court was not required to discuss Cheriha’s opinion
testimony on that issue in reaching or explaining that
independent determination. There is no error.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Source One Financial Corporation, Homeowner’s Finance Co., and the
City of New Britain, Tax Collector, were named in the plaintiff’s notice of
condemnation, but they are not parties to this appeal. We refer to Cheriha,
LLC, as the defendant.
2
Because the Commissioner of Transportation acts on behalf of the
Department of Transportation, references in this opinion to the plaintiff
include both the commissioner and the department.
3
Permitted uses in B-3 zone include apartments above first story nonresi-
dential use, animal hospitals, banks, offices, retail space, restaurants,
research laboratories, and bus shelters. Uses permitted via special exception
include gas stations, motor vehicle sales, and automotive service and
repair garages.
4
Ahmed purportedly intended to use the property for a brewery.
5
The defendant specifically identified Ahmed’s ‘‘knowledge base’’ as a
‘‘savvy commercial investor’’ and his related ability ‘‘to make an offer on the
property, assess the property and make an adequate offer on the property.’’
6
The letter of intent specifically states that it ‘‘is intended solely as a
preliminary expression of general intentions and is to be used for discussion
purposes only.’’ In addition, the letter was not signed by the defendant.
7
In its initial brief to this court, the defendant averred that LoMonte only
considered properties zoned for residential use. The defendant acknowl-
edges in its reply brief that in fact none of LoMonte’s selected sales compara-
bles were zoned residential, thus rendering the defendant’s previous
assertion inaccurate. Nonetheless, the defendant persists in this argument,
claiming, that LoMonte limited his search for comparable sales as a result
of the zoning error.
8
LoMonte’s comparables were all located in either a business or indus-
trial zone.
9
Although other methods of valuation were also utilized in the expert
appraisals that were presented at the hearing, the court relied on the sales
comparison approach to reach an opinion as to the value of the property
on the basis that it was the most credible method of valuation given the
relevant facts. Factors that affect the comparability of sales and bear on
their usefulness in determining the value of the subject property include,
location, size, shape, time of the sale, similarity of use to which the property
is put, adaptability, zoning and available utilities. 27 Am. Jur. 2d, Eminent
Domain § 538 (2014). Differences as to these factors generally go to the
weight of the evidence of the comparable sale, rather than its admissibility.
Id., § 539. Moreover, the weight to be given to the evidence is for the trier
of fact. Id.
10
It is difficult to reconcile the defendant’s argument that LoMonte’s meth-
odology was ‘‘inherently flawed’’ with the record in this case, which discloses
that the defendant did not object to the admission of LoMonte’s report
at trial.