Opinion
14-P-296
12-11-2014
PESU, INC. v. CITY OF PITTSFIELD & another.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
After a jury-waived trial, a judge found that the plaintiff PESU, Inc. (PESU), suffered no damages due to the illegal demolition of a building on PESU's property that resulted from the actions of the defendants, the city of Pittsfield and its board of health (collectively, the city). PESU argues on appeal primarily that (1) the judge abused his discretion by admitting testimony from the city's expert witness on valuation, and (2) the judge's findings with respect to the property's value were clearly erroneous. We affirm.
A different judge previously had decided on summary judgment that the city had illegally demolished the building because it had not given proper notice of the demolition, a determination from which the city has not appealed.
Relying on Russell v. New Bedford, 74 Mass. App. Ct. 715, 724 (2009), PESU contends the city's expert's testimony on the "as-complete" value of the property was impermissibly speculative because the building was not income-producing at the time of demolition. Although "a trial judge has a large measure of discretion in deciding whether to admit or exclude expert opinion testimony . . . [a]n expert should not be permitted to give an opinion that is based on conjecture or speculation from an insufficient evidentiary foundation." Van Brode Group, Inc. v. Bowditch & Dewey, 36 Mass. App. Ct. 509, 520 (1994).
The issue is preserved.
The general rule for the measure of damages in actions for negligent injury to property is the difference in fair market value before and after the loss. Russell, 74 Mass. App. Ct. at 722-723. However, "market value does not in all cases afford a correct measure of indemnity, and is not therefore 'a universal test.'" Trinity Church in the City of Boston v. John Hancock Mut. Life Ins. Co., 399 Mass. 43, 48 (1987), quoting from Wall v. Platt, 169 Mass. 398, 405-406 (1897).
It is true, as PESU argues, that we held in Russell that lost future rental income can be recovered as damages "only in cases in which the property had actual future income, as opposed to only a possibility of future income." 74 Mass. App. Ct. at 724. However, that legal proposition does not bear on the city's expert's testimony in this case. Here, the city's expert did not project future rental income as a component of recoverable damages. Instead, he projected that rental income only as part of determining the property's fair market value. This he did by positing a best-case scenario for PESU (in which the building was rehabilitated and rented), and concluded that the building would not generate enough rental income to justify the substantial investment required for its rehabilitation. In other words, because the property had reached the end of its economic life, its fair market value before demolition was effectively zero.
Moreover, the judge did not abuse his discretion in accepting the expert's testimony, which was based on thirty years of experience as a property owner and manager in the city in addition to his work as a residential appraiser and a tax assessor. In forming his opinion, the expert examined contractors' quotes, purchase and sale agreements, assessor's cards, tax abatement applications, and other materials.
PESU also contends that the testimony of Anthony Contenta, a second witness for the city, on the minimum expenditure required to bring the building up to code was overly speculative. To the contrary, Contenta's testimony that it would cost "in the $400,000 range" was sufficiently definitive. See Curreri v. Isihara, 80 Mass. App. Ct. 193, 198 (2011). Finally, PESU argues that the other evidence concerning the cost-to-cure was inadmissible. However, "[e]vidence having a tendency to prove a proposition is not inadmissible simply because it does not wholly prove the proposition. It is enough if in connection with other evidence it helps a little." Commonwealth v. Tucker, 189 Mass. 457, 467 (1905).
Secondly, although PESU concedes that the judge was not required to accept its expert's testimony on the property's fair market value, see Romano v. Weiss, 26 Mass. App. Ct. 162, 169 (1988), it argues the judge should not have disregarded the city's own tax assessment value. PESU further contends that the judge's ultimate finding that the property had no value was clearly erroneous in light of the tax assessment value. PESU has cited no authority for the proposition that the judge was required to accept the tax assessment value as conclusive evidence of fair market value. Indeed, it was the judge's prerogative to weigh, reject, or accept the evidence. Thurlow v. Shaw's Supermarkets, Inc., 49 Mass. App. Ct. 175, 177 (2000) ("Appellate review of the facts found at a bench trial does not permit the weighing of the evidence anew").
"A finding is clearly erroneous when there is no evidence 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.'" Custody of Eleanor, 414 Mass. 795, 799 (1993), quoting from Building Inspector of Lancaster v. Sanderson, 372 Mass. 157, 160 (1977). Here, the judge carefully weighed and explained the city's tax assessment value against the other evidence introduced at trial, including a tax abatement application filed by PESU's principal that attributed a nominal value to the property. The judge's findings were not clearly erroneous. See NationsBanc Mort. Corp. v. Eisenhauer, 49 Mass. App. Ct. 727, 730-731 (2000).
Judgment affirmed.
By the Court (Green, Wolohojian & Blake, JJ.),
The panelists are listed in order of seniority.
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Clerk Entered: December 11, 2014.