Levitsky v. Prince George's County

Thompson, J., delivered the opinion of the Court. Dr. Leon Levitsky, appellant, appeals from an adverse judgment following a bifurcated trial in the Circuit Court for Prince George’s County with respect to the condemnation of 6,380 square feet of property. A hearing was initially held before Judge James M. Rea regarding the necessity of the taking. Judge Rea concluded that the taking was neither arbitrary, oppressive, nor so unreasonable as to suggest bad faith.

A jury subsequently awarded appellant $5,300 in damages. The appellant raises four issues on appeal: 1. "Did the trial court err in finding that the decision of the condemnor was not so oppressive, arbitrary or unreasonable as to suggest bad faith and that there existed a necessity to justify taking the slope easement? 2. Did the trial court err in permitting the County to call the appellant’s appraiser, Paul J. Gilroy, as witness during their case in chief and in disclosing the fact that he was retained by appellant? 3.

Did the trial court err in refusing to instruct the jury in accordance with appellant’s prayers regarding valuation of proximity damages? 4. Did the trial court err in not granting a directed verdict at the close of the appellee’s case in ⁴⁸⁶ chief or in the alternative, by not granting the appellant’s Motion for Judgment N.O.V. or in the alternative new trial?” FACTS As a part of a project to widen a two-lane highway and to construct a sidewalk and gutter, Prince George’s County, appellee, condemned 6,380 square feet of land belonging to Dr. Leon Levitsky, appellánt. The County’s proposal included the resloping of appellant’s property to a 2:1 slope easement. The appellant, in an effort to retain his land in its natural state, protested the proposed 2:1 slope easement and sought to have the County construct a retaining wall in its stead.

At trial, the County presented the testimony of Robert C. Kelley, Chief of the Design Division of the Department of Public Works. He testified that the determination as to the mode of construction was based on "value engineering,” i.e., the most economical means available. While admitting that an independent cost analysis was not conducted with respect to the construction on the appellant’s land, he asserted that the retaining walls were more costly "nine out of ten times.” He further testified that the County makes use of a retaining wall in only one of two situations: first, where there is a structure existing on the land which would be adversely affected by the implementation of a 2:1 slope, or second, where the land itself evidences some "special” problem or instability and thus would not adhere to the slope. Mr. Kelley averred that he could not recall an occasion where the County had used a retaining wall merely to avoid having to slope the property.

Finally, he testified that had a retaining wall been necessitated with respect to appellant’s property, it would have been implemented. Mr. Leroy Fey, a Right-Of-Way engineer for the County, additionally testified that the decision as to the manner in which to "take” property was an economic determination. He stated that the engineers’ expertise in the area of con ⁴⁸⁷ struction costs, enabled them to render "instant decisions” as to the most economical means of accomplishing their task. Mr. Fey further testified as to his belief that the County acted in good faith and in a reasonable manner in its determinations with respect to appellant’s property.

The appellant’s witness, Bernard J. Bovelsky, an engineer, was questioned on cross-examination with respect to a statement rendered at a pre-trial deposition whereupon he testified as to the soundness of the County’s plan, stating, "I see nothing engineeringly wrong with it. It was designed properly.” When asked at trial whether such statements continued to be true, he responded that while he may have investigated the possibility of alternative modes of construction, he would have done "exactly what the County did.” Finally, Mr. Kenneth Adelberg, a consulting engineer, testified on behalf of the appellant. He opined that the County’s plans to reslope the appellant’s property were unnecessary. He stated that as an alternative the County could construct a retaining wall which would eliminate the need for a slope easement or they could straighten the road, thereby eliminating the need to affect appellant’s property entirely.

He further stated that the County’s plans as they exist on the construction drawings indicate a steeper slope than the asserted 2:1 and would in certain areas result in a slope closer to a 1:1. Mr. Adelberg admitted that aside from the possible difficulties stemming from the slope drawings, he could not say the basic engineering practices were wrong. At the conclusion of all the evidence, the trial court ruled in favor of the appellee holding that the projected plans were neither arbitrary nor unreasonable. The following week additional evidence was adduced before a jury for determination of the amount to be due as damages.

The jury traveled to the appellant’s property and viewed the subject area as well as adjacent property. Upon returning to the courtroom, the jury heard the testimony of Mr. Fey regarding the purpose of the entire project and the ⁴⁸⁸ manner in which the County intends to stabilize the 2:1 slope. The County thereafter called two appraisers, Richard Pierce, who valued damages at $800, and Paul Gilroy, who valued the damages at $5,185. Mr. Gilroy had originally been retained by the appellant to appraise the subject property.

Appellant chose not to call Mr. Gilroy as a witness but in accord with Md. Rule U12 subsection b (1) furnished the County with a copy of his appraisal. Over objection by appellant and Mr. Gilroy, his testimony was permitted. Additionally, over objection, the County was allowed to question Gilroy as to his earlier involvement with the appellant. The appellant proceeded with the testimony of Dr. Levitsky who testified as to his plans for the property.

He estimated the value of the property as between $50,000 and $60,000 and estimated the damage percentage at 100%. This testimony was followed by that of architect William Trujillo, who further testified as to the proposed plans of Dr. Levitsky. Kenneth Adelberg was called as a witness to discuss the mode of engineering proposed by the County and the effect of such methods on proximity damages. Appellant’s last witness was appraiser, Michael Hagen, who, using a market value approach, arrived at an estimated value of $27,043 in damages.

The jury thereupon retired and returned with an inquisition in the amount of $5,300. I Necessity for the Taking Where a municipal corporation exercises its power to take property courts generally will not interfere unless: (1) there is no necessity for the taking, and (2) the decision of the condemnor is so oppressive, arbitrary or unreasonable as to suggest bad faith. Washington Suburban Sanitary Commission v. Santorios, 234 Md. 342 , 199 A.2d 206 (1964). The necessity for the taking need not be absolute as long as it can be shown to be reasonable under the circumstances.

Id. at ⁴⁸⁹ 346; Johnson v. Consolidated Gas, Electric Light and Power Co., 187 Md. 454 , 50 A.2d 918 (1947). It is uncontroverted that a necessity exists for the County to widen the road adjoining appellant’s property and to construct a sidewalk and gutter. Thus, the aspect of necessity focused upon at the trial level was the decision of the County to proceed by method of slope easement rather than building a retaining wall as requested by appellant. Appellant urges that the County’s resloping of his property will have the proximate effect of rendering the land unfit for a planned residence, pool and tennis court, while the implementation of a retaining wall would allow him to proceed as intended.

In response to similar protestations, the Court of Appeals observed in Boswell v. Prince George’s County, 273 Md. 522, 523-24 , 330 A.2d 663 (1975): "Landowners when faced with a proposed acquisition of their land for public improvements, whether by way of easement or in fee simple, have often suggested to the courts that they saw a better way to do the improvement than that proposed by the condemning authority. See, e.g., Director v. Oliver Beach Imp. Ass’n., 259 Md. 183 , 269 A.2d 615 (1970); State Roads Comm. v. Franklin, 201 Md. 549 , 95 A.2d 99 (1953); Johnson v. Gas & Electric Co., 187 Md. 454 , 50 A.2d 918 (1947); and Murphy v. State Roads Comm’n., 159 Md. 7 , 149 A. 566 (1930). They have been uniformly unsuccessful in this Court.” In the present case the appellant’s assertion of bad faith on the part of the County will be equally unsuccessful.

The appellant urges that bad faith is evidenced by the failure of the County to perform cost estimates of the various procedures prior to its decision to implement a particular mode of construction. The absence of such computation was logically explained by Mr. Fey, a Right-of-Way engineer for the County who stated: "Our design engineers know what basic construction costs are, such as walls. They know ⁴⁹⁰ basically what construction costs are such as slopes, and in the orderly process of designing a roadway, they can virtually tell like you quoting from some case history out of your head, that the costs of a wall far exceeds the cost of grading. And as a result, they don’t sit down and say, well this square foot of land on Dr. Levitsky versus this square foot of wall on Dr. Levitsky is thus and so.

They do not do that. They know they, because they are experts, they are designers, roughly, what the costs are going and, and as a result they make instant decisions on the drafting board.” It is not unreasonable for the County to rely on decisions rendered by their engineers without computing a separate cost analysis for every project contemplated. These decisions are not the result of instinct, as alleged by appellant, but rather expertise acquired through years of engaging in similar projects. Further evidence as to the reasonableness of the actions by the County is found in the testimony of appellant’s own expert, Mr. Bernard Bovelsky, a civil engineer.

Mr. Bovelsky averred at his deposition: "I see nothing engineeringly wrong with it [the County’s plan]. It was designed properly.” When later questioned at trial as to whether he agreed with this previous statement he responded that while he personally would have investigated other alternatives he would have done "exactly what the County did.” It is clear that the construction of the retaining wall may have been more conducive to the plans of the appellant, however, individual preference or convenience is not sufficient to overturn the decision of the County. We find no evidence indicating that the County acted arbitrarily or unreasonably in its decision making processes. Without such showing the judiciary is without liberty to substitute its judgment for that of the County.

We see no error in the trial judge’s ruling with respect to reasonableness and necessity of the taking. 1 ⁴⁹¹ II Expert Witness’s Testimony The appellant contends that the trial judge erred in first, permitting the County to call the appellant’s appraiser, Paul Gilroy, as a witness in violation of the attorney-client privilege and second, in permitting the County to elicit from Gilroy the fact that he had originally been employed by the appellant. Appellant asserts that the disclosure of the latter prejudiced the jury into giving undue weight to Gilroy’s opinion as evidenced by their award of damages within $200 of his appraisal. The attorney-client privilege is the oldest of the privileges for confidential communications. 8 Wigmore, Evidence § 2290 at 542 (McNaughton rev. 1961). In the State of Maryland, the privilege is one of statute, found in Md. Cts. & Jud.

Proc. Code Ann. § 9-108 (1980). 2 It is a rule of evidence which prohibits the disclosure of the substance of a communication made in confidence by a client to his attorney for the purpose of obtaining legal advice. See, State v. Pratt, 284 Md. 516 , 398 A.2d 421 (1979); Harrison v. State, 276 Md. 122 , 345 A.2d 830 (1975); 8 Wigmore, supra, § 2292 at 554. The privilege is grounded on the policy of encouraging individuals needing legal advice to disclose information freely to their attorney without fear that such facts will be made public.

See, State v. Pratt, supra, 284 Md. at 520 ; Harrison v. State, supra 276 Md. at 135 ; People ex rel. Department of Public Works