DocketNumber: No. 29 88 05
Judges: MIGNONE, STATE TRIAL REFEREE.
Filed Date: 11/25/1991
Status: Non-Precedential
Modified Date: 4/18/2021
The original complaint also challenged the Town's assessment of the Lake Chamberlain Dam and Reservoir. The plaintiff's Amended Complaint, dated September 24, 1991, deleted all claims relating to the Lake Chamberlain Dam and the issue now concerns only the Bethany Lake Dam.
At trial the plaintiff called as its expert witness, Michael J. Remsha, of American Appraisal Associates, a real estate appraisal firm with its headquarters in Milwaukee, Wisconsin. Remsha testified at length as to his educational background and experience as an expert witness in the appraisal and evaluation of reservoirs and dams. Cross examination of this witness revealed that he was not licensed, as an engineer or real estate appraiser, in either Wisconsin or Connecticut. The defendant's attorney, thereupon, challenged the plaintiff's right to have Remsha's testimony considered as relevant evidence.
The plaintiff's attorney pressed his claim that the evidence of the expert, Remsha, was admissible. The undersigned thereupon interrupted the trial, holding in abeyance any decision as to the relevance and admissibility of the Remsha testimony. He requested submission of legal memoranda on the issue of whether an expert witness engineer, not licensed in either Connecticut or Wisconsin, can be considered qualified to testify in a Connecticut trial, and state his opinion as to his appraisal valuation of the dam and reservoir involved herein.
Both parties have submitted legal memoranda to support their CT Page 9560 claims. The defendant Town of Bethany bases its objection to the admissibility of the Remsha testimony on the ground that there is no provision in the Connecticut Statutes that would allow such testimony. The defendant Town's legal memorandum provides an indepth analysis of the provisions of Title 20 of the Connecticut General Statutes, as set forth in Chapter 392 of 1991 Cumulative Annual Pocket Part. Section
Section
Special note may be made of Sec.
"[t]he appropriate commission shall recognize a current, valid license or certification, as the case may be, issued to a currently practicing, competent. . .real estate appraiser. . .by another state as satisfactorily qualifying him for a license as a . . . real estate appraiser under this chapter. . . . "
The provisions of Chapter 392 are indeed rigorous in their supervision and control of "Real Estate Brokers, Salesmen, and [real estate] Appraisers." At first perusal these provisions would seem to preclude anyone who is not licensed in Connecticut, to testify in court as to appraisal valuation of real estate unless he has a current valid license or certification in another state whose licensing requirements "are substantially similar to, or higher than those of this state [Connecticut]." And the relevant Section
Section
With this introductory background, the respective contentions of the parties are as follows: The defendant Town, relying on the provisions of Chapter 392 referred to, claims the witness Remsha's testimony is not admissible because he is not licensed in either Connecticut or Wisconsin. The plaintiff claims that case law in various states gives ample legal precedent for the admission of the Remsha testimony, despite the fact that he is not licensed in either Wisconsin or Connecticut.
The undersigned concludes that the plaintiff correctly claims that
The significant change must be noted that although the 1953 enactment of Chap. 392 was captioned and related only to "Real Estate Brokers and Salesmen", the present Chap. 392 (set out in Vol. 11 A of Title 20, 1991, now bears the "caption" "Real Estate Brokers, Salesmen, and Appraisers". (underlining added.)
But aside from this interpretation of the present, 1991, Chap. 392, the plaintiff's counsel in his Memorandum of Law, has cited a lengthy list of 16 decisions in states, other than Connecticut — mostly in the south, middle and far west — that do support the plaintiff's claim that it is the qualifications of an appraiser, as brought out by his education, training and experience, that should be the test of whether the appraiser in the instant matter, Remsha, can testify in the complicated valuation of the Bethany Lake reservoir and dam, the subject of the instant case. For reference, the decisions cited may be referred to:
ALABAMA
Basin Coal Company v. Gulledge
470 So. 2d 1258 (Court of Civil Appeals, Ala. 1985)Federal Mogul Corporation v. Universal Const. Co.
376 So. 2d 716 (Ala. Ct of Civil Appeals 1979) P. 717 — Engineers not licensed in Alabama were competent to testify as expert witnesses.
CALIFORNIA
Geophysical Systems v. Seismograph Services Corp. CT Page 9562
FLORIDA
Paradise Prairie Land Co. v. U.S.
212 F.2d 170 (Fla. Ct. of App. ) Lee County Electric Co-Operative, Inc. v. Lowe344 So. 2d 308 (1987 — Fla. App). P. 309 — Holds that "an expert, if otherwise qualified, be licensed in his specialty in the State of Florida in order to qualify for expert testimony.
GEORGIA
Longino v. City of Atlanta
193 S.E.2d 190 (Ct. of Appeals of Ga. 1992) P. 791 — Person need not be a licensed real estate appraiser to qualify as such.
INDIANA
State v. Totty 423 N.E.2d (Ind.App. 1981) P. 143 — Upheld allowing an expert witness to testify on engineering matters although not licensed in Indiana but is licensed in Texas and Louisiana.
State v. Maudlin
416 N.E. 477 (Indiana App. 1981) P. 643 — Held that "a qualified practitioner was not barred from testifying as an expert because not admitted to practice in Indiana.
IOWA
Ganrud v. Smith
206 N.W.2d 311 (Iowa 1973)
MICHIGAN
W. W. White Co. v. LeClaire, et al
181 N.W.2d 790 (Ct. Appeals Mich.) P. 791 — Allowed a graduate architect not licensed m CT Page 9563 Michigan to testify as expert on "variance between planned and actual construction of bowling alley addition."
MINNESOTA
Hagen v. Swenson
236 N.W.2d 161 (Minn. 1975) P. 161 — Decision allowed expert medical witness who was not a licensed psychologist in state to testify as an expert.
NEBRASKA
HiWay 20 Term. v. Tri-County Agri-Supply443 N.W.2d 872 (Neb. 1989) Pp. 874, 875 — This was a negligence action against contractor in the construction of a grain storage building. Involved right to indemnification.
NEVADA
Wright v. Las Vegas Hacienda, Inc.720 P.2d 696 (Nev. 1986) Pg. 697 -Expert not licensed to practice psychology or engineer was not allowed to testify —
Court found error.
NEW JERSEY
Hake v. Manchester Tp.486 A.2d 83 (N.J. 1985)
OREGON
State Dept. of Trans. v. Montgomery Ward Dev.719 P.2d 507 (Or.App. 1986)
PENNSYLVANIA
U.S. v. 60.14 Acres of Land235 F. Sup. 401 Appeal of New Castle Cent. Renewal Assoc.
389 A.2d 225 (P.A. Commw. 1970)
SOUTH CAROLINA CT Page 9564
Manning v. City of Columbia377 S.E.2d 335 (S.C. 1989)South Carolina Department of Highways v. Manning
323 S.E.2d 775 (So. Carolina S.C. 1984) P. 775 — Expert witness from Illinois allowed to testify as expert witness although not a licensed landscape architect in South Carolina.
TEXAS
State v. Taylor721 S.W.2d 541 (Tex.App. 1986)
WASHINGTON
Keegan v. Grant City Public Utility District No. 2681 P.2d 146 (1983) (Washington App. 1989) Found error in court's refusal to allow expert not licensed to sell real estate, to testify as to fair market value of real estate.
Particular mention may be made of the decision in HiWay 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc., supra, where the Nebraska Supreme Court allowed an appraiser not licensed in Nebraska to testify as to his valuation of a grain storage structure, despite the fact that the appraiser was not licensed in Nebraska. The decision emphasizes that the valuation of a public utility requires specialized knowledge by the appraiser. And the Nebraska Supreme Court points out, p. 874, that a Nebraska state statute specifically provided that "no person shall testify as an appraiser before any tribunal, judge, referee or judicial committee without being licensed. . . ."
FINDING OF FACTS
1) The thorough examination of the plaintiff's witness, Remsha, both on direct and cross-examination, shows that he is qualified as an engineer and is competent to appraise reservoirs and dams by reason of his knowledge, training and experience.
2) Remsha's lack of licensure in Connecticut, and in Wisconsin, does not detract from the fact that he is a competent engineer with the desired qualifications of education, training and experience, to render his opinion as to the valuation of the subject dam and reservoir.
CONCLUSION CT Page 9565
The trial in the instant matter is ordered to continue for further testimony by both parties, on the trial dates to be set.
A. Frederick Mignone State Trial Referee
Federal Mogul Corp. v. Universal Const. Co. ( 1979 )
BASIN COAL CO., INC. v. Gulledge ( 1985 )
Paradise Prairie Land Co. v. United States ( 1954 )
LEE CTY. ELEC. CO-OPERATIVE, INC. v. Lowe ( 1977 )
State Ex Rel. Department of Transportation v. Montgomery ... ( 1986 )
South Carolina Department of Highways & Public ... ( 1984 )
Wright v. Las Vegas Hacienda, Inc. ( 1986 )
Manning v. City of Columbia ( 1989 )
Hiway 20 Terminal, Inc. v. Tri-County Agri-Supply, Inc. ( 1989 )