Opinion
HHBCV115015392
11-13-2015
State of Connecticut Department of Transportation v. Cheriha, LLC et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR APPRAISAL FEES
Arnold W. Aronson, Judge Trial Referee.
On August 7, 2013, this court issued a memorandum of decision following a trial on the issue of a reassessment of damages related to the taking of a parcel of real estate owned by the defendant and located in the city of New Britain.
The plaintiff, department of transportation (DOT), filed a notice of condemnation of the defendant's real estate and its assessment of damages for the taking in the amount of $125,000. Following a trial on the defendant's application for reassessment of damages the court increased the amount of compensation to $243,840, an increase of $118,840.
The decision of the trial court to award an increase in compensation was appealed by the defendant to the Appellate Court which affirmed the trial court's decision. See Dept. of Transportation v. Cheriha, LLC et al., 155 Conn.App. 181, 112 A.3d 825 (2015).
Following the appellate court decision on January 27, 2015, the defendant filed a motion, dated April 1, 2015, for appraisal fees, interest and costs. In its motion for fees, the defendant recites that since the defendant has exhausted all of its rights to appeal the trial court's decision, the defendant now seeks to have the trial court enter an order requiring DOT to pay interest, appraisal fees and costs related to the case. The defendant, in its motion for fees, requests the court to award a total of $4,750 to cover the appraisal fees of Mr. Kerin, referring to fee invoices attached to the motion as exhibit H. The defendant further cites to two Superior Court cases that awarded Mr. Kerin a fee of $6,600 and $7,500 respectively, to show Mr. Kerin's fees to be reasonable.
The defendant subsequently filed a second amended motion for appraisal fees, interest and costs dated July 27, 2015. In this second amended motion, the defendant acknowledges that " (o)n April 2013, DOT paid the judgment and interest, totaling one hundred nineteen thousand, five hundred eighty dollars and one cent ($119,580.01 to the Defendant . . .)."
On September 25, 2015, the defendant filed a motion for clarification of the court's decision of August 7, 2013. The defendant noted in its motion that the trial court did not " explicitly state that appraisal fees were part of the damages awarded . . . even though the amount of damages awarded by the court exceeded the amount of the assessment by the Commissioner."
The defendant, seeking to have appraisal fees awarded, relies on the decision in Mickey v. Mickey, 292 Conn. 597, 974 A.2d 641 (2009), that " (C)ourts have continuing jurisdiction to fashion a remedy appropriate to the vindication of a prior . . . judgment . . . pursuant to [their] inherent powers . . . a trial court may, at any time, exercise its continuing jurisdiction to effectuate its prior [judgment] . . . by interpreting [the] ambiguous judgment and entering orders to effectuate the judgment as interpreted." As the defendant further notes, General Statutes § 13a-76 states, in relevant part, " If the amount of the reassessment of such damages awarded to any such property owner exceeds the amount of the assessment of such damages by the Commissioner for such land, the court or such judge trial referee shall award to such property owner such appraisal fees as the court or such judge trial referee determines to be reasonable." (Emphasis added.)
In the motion for clarification, the defendant recites as follows: " In its trial brief, the Defendant requested that the Court award the Defendant a total of $7,000 to cover the appraisal fees of Mr. Kerin, and indicated that appraisal fees would be furnished upon request. The trial court did not rule on this request, but rather, remained silent on the issue. The defendant subsequently appealed and the Appellate Court ruled in favor of the appellee." Motion for clarification, p. 2. On October 2, 2015, the Commissioner filed an objection to the motion to award appraisal fees in response to the defendant's motion for clarification. In support of his objection, the Commissioner noted that the defendant, pursuant to General Statutes § 12-76, would have been entitled to appraisal fees " had it presented any evidence of those costs during the trial. No evidence concerning the cost of the appraisal reports or the testimony of Appraiser Kerin was ever presented at the trial. The defendant inappropriately tried to introduce evidence of these costs in an affidavit by Christopher Kerin attached to its Second Amended Motion." (Objection p. 2.)
See Affidavit of Christopher Kerin dated April 2, 2015 reporting an appraisal fee of $4,500 and court time fee of $2,750.
There are two issues arising from the question of whether the court may award appraisal fees in a condemnation matter, postjudgment. The first issue is whether the motion for clarification filed by the defendant is substantive in nature or a clarification of a prior decision. The second issue is whether the defendant has sustained its burden of providing evidence supporting a claim for appraisal fees. The first issue is a legal one. The second issue is a factual one.
Substantive here means whether the change or alteration of the judgment adding appraisal fees adds something new to the judgment. Clarification, on the other hand, does not add something new to the judgment, but rather makes more clear what is already there. See Perry v. Perry, 130 Conn.App. 720, 725-26, 24 A.3d 1269 (2011).
As previously noted, § 13a-76 requires a judge or a judge trial referee to award appraisal fees where the court finds that the condemnation award is too low. In the context of this case, the defendant's post-trial brief dated June 5, 2013 stated, " (f)inally, pursuant to Conn. Gen. Stat. 13a-76, Cheriha, LLC seeks reasonable appraisal fees, which will be furnished upon request." This request of the court is, in itself, ambiguous or inarticulately drawn since it appears to place the burden upon the court to request documentation to support the award of appraisal fees. Cf. Smith v. Snyder, 267 Conn. 456, 479, 839 A.2d 589 (2004). As a result of this request, the court took no action in regard to appraisal fees.
Recognizing that the defendant was entitled to an award of reasonable appraisal fees but which was never considered by the court due to a misunderstanding by the defendant, the question before the court is whether an award of appraisal fees here is substantive or a clarification of the court's decision. The court concludes that an award of appraisal fees is, in this case, a clarification of its prior decision and not a substantive change in its prior decision.
In a condemnation case, a property owner is entitled to just compensation for the taking of his or her land because in such a taking, a property owner is entitled to be placed in as good a condition pecuniarily as if his or her land had not been taken. See Northeast Ct. Economic Alliance v. ATC Partnership, 256 Conn. 813, 828, 776 A.2d 1068 (2001). Because § 13a-76 requires the property owner to be compensated for the payment of appraisal fees once the court has determined that the Commissioner's award was too low, depriving the defendant of the payment of appraisal fees would not be placing the defendant in the same position as if its land had not been taken.
Of particular note is the case of Commissioner of Transportation v. Vega, 109 Conn.App. 16, 21, 949 A.2d 1288 (2008), in which the trial court failed to award appraisal fees in a condemnation case even though the award by the court was greater than that awarded by the Commissioner. In that case, the Vega court held: " the defendant was entitled to be awarded appraisal fees deemed to be reasonable by the court. The court, however, failed to award the defendant any appraisal fees. With regard to appraisal fees, however, the court is entrusted with discretion in assessing a reasonable amount of appraisal fees. In the present case, the defendant's appraiser testified at trial that he charged $1,800 for his appraisal of the defendant's property and was charging $125 per hour for his trial testimony. Therefore, the court was presented with facts from which it could have determined a reasonable appraisal fee in the exercise of its discretion. Because evidence regarding the appraisal fees incurred by the defendant was presented in this case, the court was obligated to make an award of reasonable appraisal fees to the defendant . . . the court's failure to award any fees pursuant to the statute was improper."
In the present case, the defendant offered no documentation for its claim for appraisal fees at the time of trial. It was only at the completion of the appellate process undertaken by the defendant that the court was presented with such a claim for the payment of appraisal fees due Christopher Kerin. Kerin did not testify at trial as to his fee. The only evidence in regard to Kerin's appraisal fee is contained in exhibit H attached to the defendant's motion to award appraisal fees.
At a hearing on defendant's second amended motion for appraisal fees, interest and costs and on the commissioner's objection filed pursuant to defendant's motion, the commissioner cites to Commissioner of Transportation v. Vega, supra, arguing that in the Vega case, the defendant introduced evidence at the time of trial supporting the claim for appraisal fees, whereas here evidence as to appraisal fees was introduced in a postjudgment motion.
Recognizing that a condemnation proceeding is an equitable action; Redevelopment Agency v. Norwalk Aluminum Foundry Corp., 155 Conn. 397, 402, 233 A.2d 1 (1967); given the factual circumstances here, the court concludes that it may award appraisal fees where such an award was required by statute. It is well recognized that our courts have continuing jurisdiction to fashion a remedy where a prior judgment was lacking in a remedy required by statute. See Lawrence v. Cords, 159 Conn.App. 194, 198, 122 A.3d 713 (2015).
Turning to the second issue, the question is whether the defendant's reference in its trial brief to other Superior Court cases in which certain amounts of fees awarded by the court in those cases provides a sufficient basis for the court to determine Kerin's fees in this case. They do not. Since each judicial decision is based on the facts peculiar to each case, appraisal fees awarded in other condemnation matters are not relevant to the facts herein determining the amount of appraisal fees to be awarded.
At the hearing on the defendant's motion for clarification, the commissioner had an opportunity to challenge the amount of the appraisal fees to be awarded. However, rather than challenging the amount of fees, the commissioner argues that the award of appraisal fees must be based on evidence presented at the time of trial citing the Vega case, supra, rather than presented in a postjudgment motion.
In the present case, the defendant postponed the claim of appraisal fees until the completion of the unsuccessful appellate process taken by the defendant. Following the decision of the Appellate Court affirming the decision of the trial court, the defendant filed its motion for appraisal fees supported by exhibit H recited above seeking an appraisal fee of $4,750.
The court notes that in practice, the taxation of costs, in civil cases, may be taxed postjudgment. See Practice Book § 18-5. The only distinction between the facts in the Vega case, in which the court awarded postjudgment appraisal fees and the present case, is the submission of documents supporting the request being made postjudgment and not during the course of the trial. Since the objection to the award of appraisal fees is founded on the argument that such fees cannot be awarded postjudgment contrary to the holding in Vega, the objection is overruled. The defendant's request for appraisal fees in the amount of $4,750 is granted. See Alemany v. Commissioner of Transportation, 215 Conn. 437, 449, 576 A.2d 503 (1990).