J.E. Robert Co. v. Signature Properties, LLC

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J.E. ROBERT COMPANY, INC. v. SIGNATURE
PROPERTIES, LLC, ET AL.
(SC 19483)
Rogers, C. J., and Palmer, Zarella, Eveleigh, McDonald,
Espinosa and Vertefeuille, Js.
Argued October 8, 2015—officially released January 5, 2016
Richard J. Buturla, with whom was Brian A. Lema,
for the appellants (defendants Andrew J. Julian and
Michael Murray).
Eric S. Goldstein, with whom, on the brief, was Pat-
rick M. Fahey, for the appellee (substitute plaintiff
Shaw’s New London, LLC).
Opinion
ZARELLA, J. In this appeal, we are asked to determine
whether the trial court properly relied on the appraisal
submitted by the substitute plaintiff, Shaw’s New Lon-
don, LLC (plaintiff), and the testimony of the plaintiff’s
appraiser in granting the plaintiff’s motion for a defi-
ciency judgment against the named defendant, Signa-
ture Properties, LLC (Signature), and the defendants
Andrew J. Julian, Maureen Julian, and Michael Murray.1
The defendants Andrew J. Julian and Murray (defen-
dants) appeal from the trial court’s judgment and claim
that it was improper to rely on the appraisal and the
appraiser’s testimony because they expressed an opin-
ion on the value of the leased fee interest in the mort-
gaged property and the plaintiff was required to
establish the value of the fee simple interest. The defen-
dants further argue that the value of the leased fee
interest and fee simple interest of the mortgaged prop-
erty are not equivalent. The plaintiff responds that it was
proper to appraise the value of the leased fee interest in
the mortgaged property because the day title to the
property vested in the plaintiff, it was encumbered by
three leases.2 Alternatively, the plaintiff contends that
the value of the leased fee and fee simple interests in
the mortgaged property are equal because the leases
were at market rates. We conclude that the trial court’s
reliance on the appraisal and the appraiser’s testimony
was proper and affirm its judgment.
On April 13, 2005, Signature executed a promissory
note secured by a mortgage and security agreement on
Signature’s property at 6 Shaw’s Cove in the city of
New London.3 The note and mortgage were guaranteed
by Andrew J. Julian, Maureen Julian, and Murray (guar-
antors). In August, 2007, an action was commenced to
foreclose the mortgage, and, on February 3, 2010, the
trial court, Shapiro, J., granted the plaintiff’s motion
for partial summary judgment. The court granted the
plaintiff, among other things, the relief of foreclosure
and an order permitting the plaintiff to seek a deficiency
judgment against the guarantors. The trial court, Bright,
J., rendered a judgment of strict foreclosure on October
20, 2011, which was affirmed by this court on July 16,
2013. See J.E. Robert Co. v. Signature Properties, LLC,
309 Conn. 307, 342, 71 A.3d 492 (2013). The trial court,
Sheridan, J., then granted the plaintiff’s motion to open
the judgment of strict foreclosure and set new law days
for Signature and the guarantors. Neither Signature nor
the guarantors redeemed by their respective law days,
and title to the foreclosed property vested in the plaintiff
on September 27, 2013.
The plaintiff subsequently filed a timely motion seek-
ing a deficiency judgment against Signature and the
guarantors, and a hearing was scheduled. At the hear-
ing, the plaintiff offered the testimony of Daniel Barber,
the senior vice president of Northeast Property Group,
Inc., the court-appointed receiver, and Mark Bates, the
plaintiff’s appraiser. The plaintiff also submitted nine
exhibits, including Bates’ appraisal report. Barber testi-
fied regarding the current conditions of the mortgaged
property. On the basis of this testimony, the court found
that the property had three tenants on September 27,
2013, the day title to the property vested in the plaintiff,
who occupied approximately 60 percent of the building.
The remaining 40 percent of the property was vacant,
and it had been since 2008, despite Barber’s efforts to
lease the vacant space.
Bates’ testimony and appraisal report ‘‘presented an
opinion concerning ‘the market value as is of the leased
fee interest’ of the mortgaged property . . . .’’ In reach-
ing his opinion, Bates utilized the sales comparison and
income capitalization approaches. The income capital-
ization approach employed two analyses, direct capital-
ization and discounted cash flow. To determine the
projected income stream generated by the property,
Bates utilized the contract rents for the occupied space,
after determining they were at or near market rates,
and applied market rent to the vacant space.4 Bates did
not use the cost approach, determining that it would
be an inappropriate methodology in this case due to
the age of the building and limited comparable land
transactions. Moreover, the cost approach is generally
employed only when valuing new or nearly new proper-
ties. Bates concluded, after considering the value indi-
cations from the sales comparison and income capital-
ization approaches, ‘‘that the market value as is of the
leased fee interest in the mortgaged property was $5.3
million as of September 27, 2013,’’ the day title to the
mortgaged property vested in the plaintiff. In addition,
Bates testified that there would be no significant differ-
ence in the valuation of the leased fee interest and the
fee simple interest because the current contract rents
were close to the market rents.
The defendants did not present any evidence to con-
tradict or discredit Bates’ valuation of the property but,
instead, argued that the valuation was flawed because
it valued the leased fee interest, and not the fee simple
interest, in the property. The trial court credited Bates’
testimony that the contract rents for the leased space
were similar to the market rent for comparable space
and concluded: ‘‘Under those circumstances, the value
of the leased fee estate will be equivalent to the value
of the fee simple estate, and the court is justified in
using the valuation as is of the leased fee interest in
arriving at its determination of the fair market value of
the mortgaged property.’’ The court therefore found the
fair market value of the mortgaged property to be $5.3
million and rendered a deficiency judgment in the
amount of $13,264,318.57.
The defendants appealed, claiming, in essence, that
the trial court improperly relied on Bates’ appraisal and
his testimony in determining the fair market value of
the foreclosed property because they valued the leased
fee interest of the property rather than the fee simple
interest. The defendants make a number of arguments,
but their arguments are all derivative of two underlying
claims: (1) General Statutes § 49-14 (a) required the
plaintiff to establish the fair market value of the fee
simple interest of the mortgaged property; and (2) the
valuation of the fee simple interest and leased fee inter-
est of mortgaged property is not equal, even though the
leases are at market rate.
We begin our analysis by setting forth the proper
standard of review. It is in the trial court’s province to
determine the valuation of mortgaged property, usually
guided by expert witnesses, relevant circumstances
bearing on value, and its own knowledge. See, e.g.,
Eichman v. J & J Building Co., 216 Conn. 443, 451,
582 A.2d 182 (1990). The trial court also determines the
credibility and weight accorded to the witnesses, their
testimony, and the evidence admitted. See, e.g., id.,
451–52. Thus, the trial court’s conclusion regarding the
fair market value of the mortgaged property will be
upheld ‘‘unless there was an error of law or a legal or
logical inconsistency with the facts found.’’ (Internal
quotation marks omitted.) New Haven Savings Bank
v. West Haven Sound Development, 190 Conn. 60, 70,
459 A.2d 999 (1983). Its determination of valuation will
stand unless ‘‘it appears on the record . . . that the
[trial] court misapplied or overlooked, or gave a wrong
or improper effect to, any test or consideration which
it was [its] duty to regard.’’ (Internal quotation marks
omitted.) Id.
The defendants contend that § 49-14 (a) requires the
plaintiff, in order to receive a deficiency judgment, to
establish the fair market value of the fee simple interest
of the mortgaged property on September 27, 2013, the
date title vested in the plaintiff. Their argument is as
follows: First, § 49-14 (a) requires the party seeking a
deficiency judgment to ‘‘establish a valuation for the
mortgaged property . . . .’’ (Emphasis added.) Sec-
ond, Connecticut follows the title theory of mortgages,
meaning that, when a mortgage is executed, the mort-
gagee receives legal title to the property in the form of
a vested fee simple subject to complete defeasance by
the mortgagor’s compliance with the mortgage condi-
tions, i.e., timely payment of the debt secured by the
mortgage. Third, ‘‘the mortgaged property’’ referred to
in § 49-14 (a) is the fee simple interest because, under
the title theory of mortgages, that is what vests in the
mortgagee when the mortgage is executed. Therefore,
§ 49-14 (a) requires the plaintiff to establish the value
of the fee simple, not the leased fee. We need not decide,
however, whether § 49-14 (a) requires the plaintiff to
establish the value of the fee simple interest in the
mortgaged property because, as we discuss further in
this opinion, when contract rents are at market rates,
the value of the leased fee and fee simple interests of
mortgaged property is equivalent.
In the trial court, the defendants argued that the plain-
tiff’s appraisal was flawed because it valued the leased
fee interest rather than the fee simple interest of the
mortgaged property. The trial court responded that a
‘‘leased fee interest is simply the fee simple interest
encumbered by a lease. If the lease is at market rent,
then the leased fee value and the fee simple value are
equal.’’ The defendants now argue before this court that
the trial court’s statement was an incorrect conclusion
of law. We do not agree.
When employing the income capitalization approach
to value the fee simple interest in an income producing
property, such as the property at issue in the present
case, an appraiser utilizes market rents. See Appraisal
Institute, The Appraisal of Real Estate (12th Ed. 2001)
pp. 480, 500. By multiplying the market rent by all rent-
able space, the appraiser can estimate the income the
property would generate. See id., p. 480. Similarly, to
value owner occupied properties under the income cap-
italization approach, market rent estimates are utilized.
Id., p. 500. To value the leased fee interest in such
property, however, contract rents—that is, those deter-
mined by current leases—are used for space under
existing leases and market rents are used for vacant
space. Id. Thus, when market rents and contract rents
are equal, the valuation of the fee simple interest in a
particular property and the leased fee interest in the
same property will likewise be equal. The authors of
The Appraisal of Real Estate support this conclusion:
‘‘When an [appraisal] involves the valuation of a leased
fee interest, the appraiser often must also appraise the
fee simple interest. If the rent and/or terms of the lease
are favorable to the landlord (lessor), the value of the
leased fee interest will usually be greater than the value
of the fee simple interest, resulting in a negative lease-
hold interest. If the rent and/or terms of the lease are
favorable to the tenant (or lessee), the value of the
leased fee interest will usually be less than the value of
the fee simple interest, resulting in a positive leasehold
interest . . . . The negative or positive leasehold
interests will cease if contract rent and/or terms equal
market rent and/or terms any time during the lease
or when the lease expires.’’ (Citation omitted; emphasis
added.) Id., p. 82. Put another way, when contract rents
are at market rates, the value of the leased fee and fee
simple will be equal.
The holdings of other courts also support this conclu-
sion. In Walgreen Co. v. Madison, 311 Wis. 2d 158,
752 N.W.2d 687 (2008), a tax assessment appeal, the
Supreme Court of Wisconsin quoted with approval a
state property assessment manual: ‘‘If the contract rent
is at the same level as the market, the leased fee interest
has the same value as a full interest (fee simple inter-
est).’’5 (Internal quotation marks omitted.) Id., 177; see
also id., 176 (‘‘[i]f the contract rents are at market levels
. . . the leased fee interest is the same as a fee simple
interest’’ [internal quotation marks omitted]). Similarly,
in In re Prieb Properties, L.L.C., 47 Kan. App. 2d 122,
275 P.3d 56 (2012), also a tax assessment appeal, the
Court of Appeals of Kansas stated that ‘‘it is clear that
the legislative intent underlying the statutory scheme
of ad valorem taxation in [Kansas] has always been
to appraise the property as if in fee simple, requiring
property appraisal to use market rents instead of con-
tract rents if the rates are not equal.’’ (Emphasis added.)
Id., 130. Implicit in the court’s statement is the point
that, when contract rents are equal to market rates,
they do not affect the valuation of the fee simple interest
in the appraised property. Our research has not uncov-
ered any cases that hold to the contrary.
This conclusion is also consistent with our cases
addressing valuation issues. For example, in First
Bethel Associates v. Bethel, 231 Conn. 731, 651 A.2d
1279 (1995), we considered whether the contract rent
a subject property receives should factor into the analy-
sis of the market value of the property for tax assess-
ment purposes. See id., 733. In First Bethel Associates,
the defendant town contended that actual or contract
rents should be considered only when they are equiva-
lent to the market rents the property would command.
Id., 740. We rejected that argument, explaining that such
a rule ‘‘would mean that contract rent would factor
into the analysis only if it had no effect on the overall
valuation . . . .’’ Id. Implicit in our statement is the
understanding that, when contract rents are at market
rates, they do not impact the fair market value of the
property. It follows, then, that, because a leased fee
interest is valued using contract rents for leased space
and market rents for vacant space, and a fee simple
interest is valued using market rents for all rental space,
when contract rents are at market rates, the leased fee
and fee simple value will be equal.
The defendants cite to First Fiscal Fund Corp. v.
Manchester, Superior Court, judicial district of Hart-
ford-New Britain, Docket No. CV-91-0396739 (April 4,
1996), in support of their contention that the value of
the leased fee interest and the fee simple interest in
the subject property are not, as a matter of law, equiva-
lent. That case, however, is inapposite. First Fiscal
Fund Corp. was an appeal from the Board of Tax
Review of the Town of Manchester and concerned the
valuation of property located in Manchester. The plain-
tiffs’ appraiser in that case valued both the leased fee
interest and the fee simple interest in the subject prop-
erty under the income capitalization approach. The
appraiser valued the fee simple interest at $5.75 million
and the leased fee interest at $4.12 million. The defen-
dants in the present case point to this difference as
evidence that the trial court’s conclusion that the values
of the leased fee interest and fee simple interest are
equal when contract rents are at market rates is incor-
rect. What the defendants overlook, however, is that
the market rents and contract rents in First Fiscal Fund
Corp. were not equal, as they are in the present case.
That does not matter, the defendants assert, because
the variance in the rents was only one difference that
distinguished the appraisal of the fee simple interest
from that of the leased fee interest. The defendants
argue that, in addition to the different rent rates utilized
in valuing the fee simple and leased fee interests in
First Fiscal Fund Corp., the appraiser also employed
different assumptions under the fee simple valuation
than he did under the leased fee valuation. There is
nothing in First Fiscal Fund Corp., however, to suggest
that the different assumptions were based on the differ-
ence in the interest valued (fee simple or leased fee)
rather than the difference in market lease rent rates
and lease terms, and the actual rent rates and lease
terms in that case.
At oral argument, the defendants contended that the
valuation of the fee simple interest and leased fee inter-
est would not be equal, even if rents are at market rates,
because valuation of the leased fee interest ignores the
possibility that the property may be purchased by an
owner-occupier. The defendants explained that, if the
property was purchased to be occupied by the owner,
there would be no need for certain adjustments. We
assume the defendants are referring to the lease-up
expenses and the vacancy and collection loss. They
provide no support for their argument, however, and
we have found none. In fact, The Appraisal of Real
Estate notes that, when valuing the fee simple interest
in owner occupied properties under the income capital-
ization approach, the appraiser should use market rent
estimates for the space. Appraisal Institute, supra, p.
500. Further, it indicates that it is appropriate ‘‘to make
a deduction in the forecast time for the market to
achieve 100 [percent] use and occupancy of the build-
ing. (This is analogous to the lease-up time needed to
achieve stabilized occupancy in the tenanted proper-
ties.)’’ Id. Thus, when market rents and contract rents
are equal, the valuation of the fee simple interest of
an owner occupied property will be the same as the
valuation of the leased fee interest in the property.6
Finally, the defendants claim that the trial court’s
finding of the fee simple value of the subject property
was clearly erroneous because the plaintiff submitted
no evidence of the value of the fee simple interest, that
the plaintiff did not meet its burden of establishing
the fair market value of the mortgaged property, and,
therefore, that it is not entitled to a deficiency judgment.
At trial, the plaintiff presented Bates’ appraisal report
and testimony, both of which noted that the value of
the as is leased fee interest in the mortgaged property
was $5.3 million. Bates also testified that the contract
rents for leased space at the mortgaged property were
at market rates. The trial court credited Bates’ appraisal
report and his testimony.7 In light of our conclusion
that, when contract rents are at market rates, the value
of the leased fee interest and fee simple interest in
property is equal, and given the finding of the trial court
that the terms of the existing leases in this case were
similar to market terms, we cannot say that the trial
court’s fair market value finding was erroneous or
improper, or that the plaintiff did not satisfy its burden
of establishing the value of the mortgaged property.8
The judgment is affirmed.
In this opinion the other justices concurred.
1
Stephanie Lord Drake and 280 Atlantic Street, LLC, also were named as
defendants. Drake was, along with Andrew J. Julian, Maureen Julian and
Murray, one of the guarantors of the note executed by Signature. The plaintiff
did not pursue a deficiency judgment against Drake, however, because her
liability was discharged in bankruptcy. She is not a party to this appeal.
Moreover, 280 Atlantic Street, LLC, was defaulted for failure to appear and
also is not a party to this appeal.
2
We need not reach this argument because we decide this case on the
plaintiff’s alternative argument.
3
The original note was payable to the order of JPMorgan Chase Bank,
N.A. It was assigned, along with the mortgage and security agreement, to
the plaintiff, Shaw’s New London, LLC, on October 17, 2007.
4
Bates concluded that the market rent for comparable space was $20 per
square foot, and the contract rents for the leased space at the mortgaged
property averaged $20.03 per square foot.
5
We acknowledge that the Supreme Court of Wisconsin was relying on
a 2007 state property assessment manual; see Walgreen Co. v. Madison,
supra, 311 Wis. 2d 165 n.3; however, the authors of that manual draw on
recognized practices of the appraisal profession. See, e.g., Wisconsin Dept.
of Revenue, Wisconsin Property Assessment Manual (2014) introduction,
available at https://www.revenue.wi.gov/slf/wpam/wpam14.pdf (last visited
December 18, 2015). Moreover, the court also relied on the same edition of
The Appraisal of Real Estate that we rely on in the present case. See, e.g.,
Walgreen Co. v. Madison, supra, 164–65, 168 and n.5.
6
It is important to note that there does not appear to be any reason why
Bates should have valued the subject property as an owner occupied facility.
He concluded that the most likely buyer for the subject property would be
an investor, and the defendants did not offer any evidence to contradict
that conclusion.
7
The defendants did not present any evidence to contradict Bates’ testi-
mony on this matter, or any other fact, and they do not challenge the trial
court’s finding that the contract terms were similar to the market terms.
8
The defendants also argue that the trial court appears to have credited
Bates’ testimony that there would be no significant difference in the value
of the leased fee interest and fee simple interest in the subject property
and that crediting such testimony was clearly erroneous because Bates did
not value the fee simple interest. After examining the trial court’s memoran-
dum of decision, however, we believe that the trial court credited Bates’
testimony that the contract and market rents were equal and concluded, as
a matter of law, that, under such circumstances, the value of the leased fee
and fee simple will be equal. Thus, we do not address this argument.
We also conclude that the defendants’ argument that the trial court’s
finding of fair market value was clearly erroneous because it was based
on selected portions of the appraisal report is without merit. As we have
explained, our examination of the trial court’s memorandum of decision
leads us to believe that its determination was based on the factual finding
that market and contract rents were similar and the legal conclusion that,
under such circumstances, the leased fee and fee simple values are equal
rather than on selected portions of the appraisal report.