Town of Montville v. Leo Antonio, et al.

In this eminent domain action, initiated
pursuant to General Statutes § 7-247, the plaintiff, the
town of Montville (town), appeals from the judgment
rendered following a trial to the court. On appeal to this
court, the town claims that the trial court improperly
(1) denied its motion to correct and alter the court's
memorandum of decision, and (2) determined the damages
sustained by the defendant owners (owners).1
Although we conclude that the memorandum of decision
contained minor factual, typographical and proof-reading errors, the court's decision was not clearly
erroneous. We therefore affirm the judgment of the
trial court.

The following facts are not in dispute. The town initiated
this action by and through its water pollution control
authority to acquire a portion of the owners' real
property, where additional waste water treatment facilities
were to be constructed. At the time, November,
2000, the owners' property consisted of approximately
thirty-one acres of land adjacent to the existing waste
water treatment plant just off Route 32 in the town.
Pursuant to the condemnation, the town took six distinct
parcels of the owners' land totaling six acres. In
addition to acquiring a fee simple interest in the owners'
property, the town also obtained slope easements and
a permanent right of way over the land of the defendants.
On November 7, 2000, the town filed a statement
of compensation and deposited $100,000 with the clerk
of the Superior Court for the judicial district of New
London. The owners filed an appeal and application for
review of the statement of compensation.

The court held a hearing on the owners' appeal at
which time it heard testimony from three real estate
appraisers, two testifying for the town and one testifying
for the owners. The court also viewed the subject
real property. The court found the testimony of the
owners' appraiser to be more accurate and appropriate,
and that his comparisons appeared to be closer to the
actual demographics of the land in question. The court
awarded the owners $452,000 in damages as a result
of the loss they sustained due to the taking. The town
subsequently filed a motion to correct the court's memorandum
of decision, which the court denied. The town
appealed to this court.

Our Supreme Court has stated the scope of appellate
review and the purpose of condemnation proceedings.
See Commissioner of Transportation v. Towpath Associates,
255 Conn. 529, 767 A.2d 1169 (2001). ‘‘[T]he scope
of our appellate review depends upon the proper characterization
of the rulings made by the trial court. To
the extent that the trial court has made findings of fact,
our review is limited to deciding whether such findings
are clearly erroneous. When, however, the trial court
draws conclusions of law, our review is plenary and
we must decide whether its conclusions are legally and
logically correct and find support in the facts that
appear in the record. . . .

‘‘Article first, § 11, of the Connecticut constitution
provides that [t]he property of no person shall be taken
for public use, without just compensation therefor. This
court has stated consistently that [t]he question of what
is just compensation is an equitable one rather than a
strictly legal or technical one. The paramount law
intends that the condemnee shall be put in as good
condition pecuniarily by just compensation as he [or she] would have been in had the property not been
taken. . . .

‘‘The 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.
. . . The fair market value is the price that a willing
buyer would pay a willing seller based on the highest
and best possible use of the land assuming, of course,
that a market exists for such optimum use. . . . The
highest and best use of a given parcel contemplates the
use which will most likely produce the highest market
value, greatest financial return, or the most profit . . . .
In determining its highest and best use the [trier of
fact] must consider whether there was a reasonable
probability that in the reasonably near future the subject
property would be put to that use, and the effect, if
any, that such a prospective use may have on market
value at the time of the taking. . . . [Q]uestions of highest
and best use and reasonable probability of future
changes affecting value are factual determinations for
trier . . . .

‘‘In an eminent domain proceeding, a trial court may
seek aid in the testimony of experts, but must ultimately
make its own independent determination of fair compensation
. . . on the basis of all the circumstances
bearing upon value. . . . Our cases have reaffirmed
the principle that, because each parcel of real property
is in some ways unique, trial courts must be afforded
substantial discretion in choosing the most appropriate
method of determining the value of a taken property.''
(Citations omitted; internal quotation marks omitted.)
Id., 539–41.

I.

The town's first claim is that the court improperly
denied its motion to correct or alter the memorandum
of decision to correct the factual and editorial errors
it contained. Although the court's memorandum of decision
contains minor factual and editorial mistakes, none
of the errors, as the town concedes in its brief, is relevant
to the court's judgment.

The town has pointed out three typographical errors
in the court's memorandum of decision. Inasmuch as
the errors were committed by a typist and overlooked
by a proofreader, they are recognized by the reader as
errors of that nature. ‘‘It is axiomatic that courts have
the power and the duty to correct judgments which
contain clerical errors or judgments which have issued
due to inadvertence or mistake. . . . If a memorandum
incorrectly formalizes the decision that was reached in
deliberation, it should be corrected.'' (Internal quotation
marks omitted.) Jetmore v. Jetmore, 6 Conn. App.
632, 635, 507 A.2d 116 (1986). The mistakes in the court's
memorandum do not go to the formalization of the
court's decision, unlike the mistake in Jetmore, a marital dissolution action in which the court stated that the
marital home was owned jointly by the parties but, in
fact, was held in the name of the plaintiff only. The
editorial mistakes at issue here do not go to the substance
of the court's decision, and the court did not
improperly deny the town's motion to correct on
those bases.

In addition to the editorial errors contained in the
memorandum of decision, the town also has pointed
out five additional misstatements of the court with
respect to the testimony presented at the hearing.
Although the town claims that these errors are more
serious than the editorial mistakes previously
addressed, it concedes that in and of themselves, they
are relatively minor. To resolve the town's more serious
claims, we have reviewed the transcript of the hearing
before the court. We will address each of the town's
assertions of error.

The first factual error noted by the town is the court's
statement that the ‘‘plaintiff retained F. Jerome Silverstein''
as its expert real estate appraiser. In a manner
of speaking, the court misspoke. The error is one that
commonly occurs in the trial court when the court, and
sometimes the parties,2 confuses the positions of the
parties. As the case caption is styled, the town is the
plaintiff because it initiated the condemnation proceeding.
The owners are defendants, but the owners took
the appeal and had the burden going forward at the
hearing. The owners, therefore, presented evidence
first. Although the statement is technically inaccurate,
the inaccuracy has no bearing on the court's ultimate
conclusion.

The town also has pointed out inaccuracies in the
court's recitation of facts related to a comparable sale
noted by the owners' appraiser. The court wrote ‘‘a sale
of 10.1 acres with a value of $44,000 per acre.'' This
statement contains another typographical error in that
the average value per acre contained in the appraiser's
report is $44,600. The parcel of land in question contained
10.1 acres of land of which only 7.5 acres was
usable. The appraiser noted the average price per acre
for the total parcel and the average price per acre of
useable land. In reading the appraiser's report, we can
see how one's eye could skip a line and cause the
mistake made. The error, however, is not consequential.
Although we urge trial courts to read and to quote from
exhibits with care, and to proofread memoranda of
decision punctiliously to avoid the type of mistake that
occurred here, the misstatement at issue, again, does
not go to the essence of the court's ultimate decision
as to the value of the loss sustained by the owners.

The town also claims that the court improperly stated
that in the opinion of one of the town's expert appraisers,
Robert H. Silverstein, the value of the taking was
$72,000, rather than $100,000 as stated in Robert Silverstein's written report. We note that the court is the
arbiter of facts. During the hearing, Robert Silverstein
testified that the value of the taking was $72,000, that
sum being the difference between the pretaking value
of the real estate and the posttaking value of the land.
Robert Silverstein also testified that at a later time, he
determined the value of the taking to be $100,000. We,
therefore, cannot conclude that the court misstated
Robert Silverstein's value of the taking. Whether his
appraisal of the taking was $72,000 or $100,000, it did
not tip the scales with respect to the court's decision.

The town's fourth claim concerns yet another misstatement
of the court that fails to go to the crux of its
decision. The court's memorandum of decision states
that one of the town's testifying expert witnesses was
Robert J. Flanagan. Robert J. Flanagan participated in
the preparation of the town's appraisal, but Stephen
Flanagan testified at the hearing.

The last of the town's claims of incorrect statements
made by the court is that Stephen Flanagan did not
comment on the effect of the property's proximity to
the waste water treatment plant. In fact, Stephen Flanagan
did testify that the waste water treatment plant
was a negative factor with respect to the value of the
property, and his written appraisal contains that opinion
as well. Again, although the court's memorandum
of decision contains factual inaccuracies with respect
to the evidence, those inaccuracies do not rise to the
level of reversible error.

Although we agree with the town that it would have
been ‘‘good housekeeping'' for the court to have granted
the town's motion to correct the misstatements and
editorial errors in its memorandum of decision, we cannot
conclude that the court's judgment should be
reversed on the basis of the mistakes drawn to our
attention by the town.

II.

The town's second claim is that the court improperly
determined the amount of damages sustained by the
owners due to the taking of their real property. More
specifically, the town claims that the court improperly
relied on the appraisal of the owners' real estate
appraiser because the appraisal was excessive and
speculative, and that the court's reliance on that
appraisal was clearly erroneous. We disagree.

‘‘This is an issue of valuation. Valuation is a matter
of fact to be determined by the trier's independent judgment.
See Bridge Street Associates v. Water Pollution
Control Authority, 15 Conn. App. 140, 147, 543 A.2d
1351 (1988). Because this is a challenge to the court's
finding of facts, we apply a clearly erroneous standard
of review. A finding of fact is clearly erroneous when
there is no evidence in the record to support it . . .
or when although there is evidence to support it, the reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed. . . . Connecticut National Bank v. Giacomi,
242 Conn. 17, 70, 699 A.2d 101 (1997). It is axiomatic
that we defer to the trial court's assessment of the
credibility of witnesses and the weight to afford their
testimony. Briggs v. McWeeny, 260 Conn. 296, 327, 796
A.2d 516 (2002).'' (Internal quotation marks omitted.)
New London v. Picinich, 76 Conn. App. 678, 685,
A.2d (2003).

F. Jerome Silverstein, a real estate appraiser, testified
on behalf of the owners. In reaching his opinion as to
the value of the town's taking of the owners' real property,
he used the comparative sales method of analysis.
He cited four properties he considered comparable to
the owners' land. On appeal, the town claims that the
four other parcels of land are not comparable to the
land in question and that the appraisal therefore
lacks credibility.

The town first attacks the access characteristic of the
five parcels of land. According to F. Jerome Silverstein,
access to the owners' property is good. The town claims
that the other four properties are within a very short
distance from the interstate highway system because
they are accessible from the interstate highway over a
short stretch of state highway. With respect to the four
comparable properties, the town describes accessibility
with adjectives such as short or very short. With respect
to the accessibility of the owners' property to the interstate
highway system, the town describes the distance
in feet. It claims that the owners' land is more than
3500 feet from the interstate highway system and can
be reached by traveling 2000 feet over each of two state
highways. This court takes judicial notice that there
are 5280 feet in one mile. In concluding that the five
properties were comparable, the trial court obviously
found no difference between a very short distance, a
short distance and less than one mile. We do not conclude
that the court's finding of the properties to be comparable to be clearly erroneous.

The town also takes exception to F. Jerome Silverstein's
conclusion that the best use of the property
would be a retail and office center. The town's real
estate appraisers concluded that the best use of the
land was for commercial development, according to
Robert Silverstein, or secondary commercial or industrial
use, according to Stephen Flanagan. Robert Silverstein
opined that the subject land was in the town's
main retail area. The town has failed to make clear
to this court how F. Jerome Silverstein's opinion is
inconsistent with the opinions of its own appraisers.

F. Jerome Silverstein also opined that the fact that
the owners' property was adjacent to the waste water
treatment plant was not a negative factor. Both Robert
Silverstein and Stephen Flanagan testified to the contrary. They also opined that the presence of an old
cemetery on the property was a negative, as did F.
Jerome Silverstein. The town therefore claims that F.
Jerome Silverstein's testimony is not credible. In its
report, the court noted the differences in the opinions
of the various appraisers. Courts of appeal do not pass
on the credibility of witnesses. Credibility is a matter
for the trier of fact to determine and, on the basis of
the record before us, we cannot say that the court's
conclusion was clearly erroneous.

In its conclusion, the court noted that all three
appraisers considered the same factors as to the area,
zoning, location and demographics. The primary difference
in their analyses was the value of the owners' real
property prior to the taking and the market value of it
after the taking. The court found that the difference in
the valuations of the three appraisers varied by as much
as 25 percent. The court concluded that the values
expressed by F. Jerome Silverstein were more accurate
and appropriate because his comparisons were closer
to the actual demographics of the land in question. On
the basis of our review of the evidence and the transcript
of the hearing, we do not conclude that the court's
finding was clearly erroneous.

* * *

Click the case caption above for the full text of the court's opinion.