New Haven Savings Bank v. Valley Investors , 174 Conn. 77 ( 1977 )

Speziale, J.

The issue here is whether the trial court in a foreclosure action erred in refusing to accept the report of appraisers appointed pursuant to General Statutes § 49-14.¹

On January 17, 1975, a judgment of strict foreclosure was rendered against the defendants,² and, upon their failure to redeem, the plaintiff took title to the mortgaged property (a forty unit apartment building in West Haven) on June 13, 1975. The plaintiff sought a deficiency judgment and made a timely motion, pursuant to § 49-14, for the appointment of three disinterested appraisers. The appraisers were duly appointed and filed their report within the ten-day time limit. The plaintiff moved for acceptance of the appraisers’ report. The defendant Richard R. Splain filed an objection entitled a “remonstrance”^* to the acceptance of the report, and, after a full hearing, the court sustained the objection and denied the plaintiff’s motion to accept the appraisal report.

The remonstrance represented that one of the appraisers, Joseph A. Bishop, “did not personally do a formal evaluation, hut relied upon the advice and opinion of other persons not appointed by the court in arriving at a value.” The court found that Bishop had consulted with and was influenced by an outside appraiser, and on this basis concluded that Bishop failed to exercise his own independent judgment in arriving at conclusions of value; it also concluded that the outside consultation constituted a divergence from strict compliance with § 49-14.

The plaintiff claims on appeal that the conclusions of the court are not supported by the facts found and that the actions of appraiser Bishop were proper under General Statutes § 49-14. We agree. The remonstrance should have been overruled and the appraisal report accepted.

As required by the statute, the court appointed “three disinterested appraisers,” Louis E. Durocher, George J. Houser, and Joseph A. Bishop. Of the three, two, Bishop and Houser, were nominated by the defendants. In the course of reaching a determination as to the value of the property, Bishop consulted Philip W. Ball, a professional appraiser, and agreed to pay him a fee. Ball indicated to Bishop that he would estimate the value of the property as $450,000. The court found that “Bishop did not accept Mr. Ball’s opinion of value in this matter”; also in its finding, however, the court quoted a statement by Bishop that part of the basis for his appraisal was made “purely on the recommendation of Mr. Ball, that he thought it was worth $450,000 . . . .” The plaintiff represents that this latter finding is of doubtful meaning because the court has quoted only part of Bishop’s statement, thereby creating the impression that his appraisal was based solely on Ball’s recommendation. Bishop’s statement, read in full, indicates that the basis for his appraisal was not only Ball’s recommendation, but also a reading of the reports of the other appraisers, and his own experience and knowledge in real estate investment. Upon an examination of the evidence presented, this court may correct any finding to which error has been assigned if the facts have been found in language of doubtful meaning. Practice Book § 627. Such a correction is appropriate in a case such as this, where the language of the finding is such that its real significance does not clearly appear. Practice Book § 628 (b); cf. Southern New England Contracting Co. v. State, 165 Conn. 644, 653 n.2, 345 A.2d 550 (1974).

Section 49-14 of the General Statutes does not prescribe a particular appraisal procedure. It simply sets forth that “the court shall appoint three disinterested appraisers, who shall, under oath, . . . appraise the mortgaged property and shall make written report of their appraisal to the clerk of the court.” Although the three court-appointed appraisers were acting in a quasi-judicial capacity as public agents doing a public duty; Congress Bank & Trust Co. v. Brockett, 111 Conn. 490, 492, 150 A. 742 (1930); see Buck v. Morris Park, Inc., 153 Conn. 290, 292, 216 A.2d 187 (1965), appeal dismissed, 385 U.S. 2, 87 S. Ct. 33, 17 L. Ed. 2d 2;³ the court did not instruct them to follow any special appraisal procedures, nor did it caution them that outside consultation was improper.

Under the statute, the appraisers “are appointed that they may, in the light of such personal knowledge as they have or may acquire, bring to bear upon the matter of value their own judgment.” (Emphasis added.) Equitable Life Assurance Society v. Slade, 122 Conn. 451, 458, 190 A. 616 (1937). It is obvious that the words “may acquire” negate any possible interpretation that the appraisers must act in a vacuum, completely isolated from any outside influences. A reasonable, logical, and natural method for an appraiser to “acquire” personal knowledge is from outside sources, such as texts, public records, and consultations with realtors or professional appraisers. This is the kind of personal knowledge that appraisers, whether they be appointed under § 49-14 or not, may draw upon to “determine the value of property upon their own experience and judgment.” Buck v. Morris Park, Inc., supra, 293.⁴ In fact, the court found that it is common practice for real estate appraisers to consult with other appraisers in arriving at an opinion of value. As noted, personal knowledge may be acquired in a variety of ways, and, among appraisers, outside consultation is considered a helpful source of information. In the absence of controlling language in the statute, or special instructions from the court, the practice and custom of consulting with another appraiser is a legitimate means of acquiring the personal knowledge upon which to base an independent judgment of value.

Bishop personally inspected the property and arrived at his appraisal figure by employing an income approach. There has been no claim raised that Bishop failed to meet with the other appraisers to discuss the valuation opinion, or that any of the appraisers was denied the opportunity to participate fully at the valuation meeting. See Congress Bank & Trust Co. v. Brockett, supra, 492-93.

The facts show that Bishop inspected the property, reached a conclusion as to value, and was one of two appraisers to agree on a figure of $470,000. When an objection to an appraisal is filed, the inquiry of the court is limited to claimed errors of law. Connecticut Savings Bank v. Hanoman Realty Corporation, 168 Conn. 554, 558, 362 A.2d 827 (1975); Equitable Life Assurance Society v. Slade, supra, 456. The facts as found do not support the conclusions of the court that Bishop failed to exercise his own independent judgment in arriving at conclusions of value for the court, that the appraisal report was not the joint act of all three appraisers bringing to bear upon the problem the individual knowledge and judgment of each appraiser, or that the actions of appraiser Bishop in consulting with a fourth appraiser constituted a divergence from strict compliance with § 49-14 of the General Statutes. Because there was no error of law in the appraisal report, it should have been accepted.

Only brief comment need be made on the defendant Splain’s tardy constitutional attack on the statute. The constitutionality of General Statutes § 49-14 was first challenged by that defendant in the appeal to this court. The issue was initially raised by the trial court in its memorandum of decision. Having sustained the objection to the appraisers’ report on other grounds, the court ventured the opinion that the statute was constitutionally defective. Generally, issues not raised in the trial court will not be considered on appeal. Practice Book § 652; Silverman v. St. Joseph’s Hospital, 168 Conn. 160, 176, 363 A.2d 22 (1975); Pizzola v. Planning & Zoning Commission, 167 Conn. 202, 209, 355 A.2d 21 (1974). This rule is applicable even when the constitutionality of a statute is being challenged. Morris v. Timenterial, Inc., 168 Conn. 41, 43, 357 A.2d 507 (1975); Pizzola v. Planning & Zoning Commission, supra.

There is nothing in the circumstances of this case which would justify an exception to the rule. “Only in most exceptional circumstances can and will this court consider a claim, constitutional or otherwise, that has not been raised and decided in the trial court.” State v. Evans, 165 Conn. 61, 69, 327 A.2d 576 (1973). Since no new, unforeseeable, constitutional right has arisen since the trial, and •the record does not indicate a clear deprivation of a fundamental constitutional right and a fair trial, this claim need not be considered. Id., 69-70. Moreover, the fact that the defendant Splain has introduced the issue as an afterthought in a terse statement in his brief⁵ is in itself sufficient reason for deferring any consideration of the constitutionality of the statute.

The judgment of the trial court is reversed and the case is remanded with instructions to accept the appraisers’ report and grant the plaintiff’s motion for a deficiency judgment.

In this opinion House, C. J., Loiseule and Longo, Js., concurred.

1 “[General Statutes] See. 49-14. appraisal of mortgaged property AFTER FORECLOSURE. DEFICIENCY JUDGMENT. Upon the motion of any party to a foreclosure, the eourt shall appoint three disinterested appraisers, who shall, under oath, within ten days after the time limited for redemption has expired, appraise the mortgaged property and shall make written report of their appraisal to the clerk of the court where such foreclosure was had. Such report shall be a part of the files of such foreclosure suit, and such appraisal shall be final and eonelusive as to the value of such mortgaged property. The mortgage creditor, in any further action upon the mortgage debt, note or obligation, shall recover only the difference between the value of the mortgaged property as fixed by such appraisal and the amount of his claim; and the court in which such action is pending may, if such appraisal and report thereof have been made, render judgment for the plaintiff for the difference between such appraisal and the plaintiff’s claim, provided application for such deficiency judgment has been made by the plaintiff within ninety days after the time limited for redemption has expired. Tn reckoning such period of ninety days, the months of July and August shall be excluded from the computation.”

2 The partnership of Valley Investors, John V. DiBiaso, Michael T. Civitello, and Robert H. Biondi, individually and as partners, and Richard R. Splain were ali named as defendants.

* Although the proper term is not “remonstrance” but “objection” (P.B. § 360), the former term is employed here because the parties used it.

3 The trial eourt relied on Buck as authority for the proposition that § 49-14 appraisers should be distinguished from other appraisers regarding the manner in which they make their appraisals. The dissent adopts the trial court’s reasoning. A perusal of Buck and the cases cited therein clearly shows that this reliance is misplaced. Buck merely states that appraisers, unlike committees or referees, do not hold evidentiary hearings to determine the value of property; rather, they rely on “their own experience and judgment” and set a value on property at their estimate of what it is worth. Buck v. Morris Park, Inc., 153 Conn. 290, 292-93, 216 A.2d 187 (1965).

4 See footnote 3.

5 The full text of the defendant Splain’s argument on this issue is set forth here: “The Statute In Question Is Unconstitutional, As The Taking Of The Defendant’s Property Is At Issue And He Has ,No Opportunity To Submit Evidence Or To Otherwise Be Heard As To Value Prior To Potential Assessing Of A Deficiency Judgment. Contrary to any statements or holdings in Buck v. Morris, it is suggested that the more recent decisions of the Supreme Court of the United States are controlling as noted in the court’s Memorandum of Decision below. The present case should be decided on this issue alone in fairness to all litigants of this State.”