Stickell v. Mayor of Baltimore

BarnEs, J., delivered the opinion of the Court. The appeal in this case was taken from a judgment rendered by the Superior Court of Baltimore City (Perrott, J.) awarding damages for the taking of property owned by the appellants, Clarence M. Stickell, Sr. and his wife, Katherine W. Stickell (the Stickells) by the appellee, the Mayor and City Council of Baltimore (the City) in a condemnation proceeding. The jury having returned an inquisition finding damages in the amount of $81,000, the trial court, on October 30, 1967, entered a judgment in that amount. After argument, the appellants requested us to indicate as early as possible our decision in the case.

Accordingly, we passed a per curiam order on January 29, 1969, indicating that we affirmed the judgment of the lower court, with costs, and that our opinion would be thereafter filed. Our opinion follows: The subject property, known as 1614-1622 Mount Royal Avenue, is located in Baltimore City and is part of the Mount ⁴⁶⁶ Royal-Fremont Project of the Baltimore Urban Renewal Program. It consists of two separate parcels of land, the first of which is a rectangular lot, beginning at a point 106 feet 10 inches northwest of the intersection of the western line of Mount Royal Avenue and the northern line of McMechen Street, running 72 feet along the western line of Mount Royal Avenue, with a depth of 100 feet extending to the east side of an alley running parallel to Mount Royal Avenue, then 72 feet along the alley and 100 feet back to the point of beginning. The second parcel is immediately adjacent to and northwest of the first and is also a rectangle, having a frontage of 16 feet, 3% inches on Mount Royal Avenue, and a depth of 100 feet running to the same alley.

Together the two pieces of land have a frontage of 88 feet, 3j4 inches and a rectangular depth of 100 feet. The first parcel is improved by a large structure, 1614-1620 Mount Royal Avenue, which was originally built in 1894 and in 1905 as a church, and by a smaller one-story brick garage-shop building at the rear of the main building. The church is a one story and basement stone construction building, which has been converted to use as a retail store and showroom with auxiliary office and storage space. The second parcel, 1622 Mount Royal, is improved by a three-story brick row-type structure, originally designed for use as a dwelling house, but presently used as a storage area in conjunction with the retail business on the adjacent property.

All of the property is zoned first commercial. For the past 21 years, since the conversion of the church to its present use, the Stickells have conducted a retail marine equipment and supplies business on the premises. In addition to the conversion of the church and the erection of the small building in the rear, the only other recent improvement is the enclosing of the front yard by a chain-link fence, topped with barbed wire, to provide additional display space, primarily for boats. At the trial below, the city introduced two expert witnesses: Leslie S. Wilson, Jr. and Charles M. Schwartz.

Both qualified as expert appraisers. Mr. Wilson testified that the highest and best use for the property was its present use. He then appraised the subject property, first using the “comparable sales” method. He analyzed ¡several sales of other property in the area; all zoned first ■commercial, and all sold within a few years ⁴⁶⁷ preceding.

Having found that on a square footage basis, they had sold for between $9.96 to $14.99 per square foot, and that the subject property was a less desirable piece of property, he concluded that the subject property was worth $12.55 a square foot or a total of $77,000.00. He then used the “income approach.” He testified that the gross income generated by the property was $11,342.00 and that the net income after expenses was $7,791.00. Capitalizing this at 10%, he concluded that the value of the property was $77,900.00. He also testified to a third method of appraisal, the “replacement cost less depreciation” approach, which he stated he “didn’t put too much faith in.” Using this method of calculating, he found that the total value of the three buildings on the subject property was $50,-903.00 which added to the land valuation of $30,800.00 yielded a total of $81,703.00.

The second witness for the condemning authorities was Mr. Schwartz. He also testified that “the highest and best use of the property is the use [to which] it is being put, a retail distribution and sales.” He specifically denied that a church use was a higher and better use, which he felt was evidenced, among other factors, by the fact that the present owners had spent a considerable amount of money converting it from a church to its present use, and that accordingly, a large amount of money would be required to re-convert it back to a church use. He used the same three methods of appraisal as Mr. Wilson. Using the comparative sales approach (based on the same sales that Mr. Wilson used) he found that the value of the subject property was $81,000.00.

Using the cost approach, he stated that the combined replacement cost less depreciation of the buildings was $48,576.00 which added to the land valuation of $35,300.00 yielded a total of $83,800.00. Under the income approach, he capitalized $4,546.00 income which he felt the buildings generated at 10% and added to this $35,300.00 valuation of the land which gave a total value of $80,760.00. This testimony completed the City’s case. The appellants then called to the stand George W. Rokos, whom they attempted to qualify as an expert appraiser.

Mr. Rokos stated that he had done appraising while he was in the Right-Of-Way Department of the Bureau of Planning and Sur ⁴⁶⁸ veys for seven years, and that for the past ten and one-half years, he had been a real estate broker and had done appraising for private clients, some of whom he identified. Next, counsel asked Mr. Rokos to define “fair market value of property.” The following colloquy then transpired: “Q. Will you give the Court your definition of fair market value of property ? A. I couldn’t hear you. “Q. Would you give the Court your definition of fair market value of the property? A. My appraisal shows that we have arrived — • “Q. Not what the figures are.

Your definition of fair market value. How did you arrive at fair market value? A. I take the cubic footage of the building — .” At this point the court called for a recess during which time, he conferred with counsel for both parties. He then stated, it being Friday afternoon, that the court would recess until Monday morning.

He admonished Mr. Rokos not to discuss the case with anyone. Before recessing, Judge Perrott also said to counsel for the appellants, “I trust you are going to bring in Mr. Marion Cox” (who had been listed in the answers to interrogatories as an expert witness for the appellants). Counsel answered, “Yes sir, I’m going to try to bring him.” At the continuation of the trial, on the following Monday, Mr. Rokos was recalled to the stand. The following then took place: “Q. Would you tell the Court the experience that you’ve had in real estate appraising?

A. Well, I have given my opinion many times as to the value of property here in the City of Baltimore. Buyers ask you to find property for them as to “X” dollars per square foot and we do this. “Q. Were you qualified in this Court or any other Court, Baltimore City, County? A. Just as an appraiser, no, sir, not as an appraiser. I have been asked many times what I thought the value of property was. “Q. In a Court?

A. Pre-court work, but in Court a few times. ⁴⁶⁹ “Q. Would you give the Court your opinion of fair market value? A. Well, I would have to qualify that. If I could see my notes — I haven’t seen my notes or talked to anyone since we met Friday on instructions of the Court. I would have to refresh my memory as to the value that I put on it. “Q. How did you arrive at the fair market value?

A. I arrived at the fair market value by taking the Boech’s Index and — which is our bible in the establishment of property values — and bringing it up to date, and taking the cubic feet of the church structure and then multiplying that, of course, coming up with the answer as to the per dollar value of the property. The Index is based on the prices of 1926-1929, that is, prices of brick, mortar, concrete, labor, electrical, wiring, so forth, in that area 1926-1929, and then we have to bring it up to date as to the exact cost based on a hundred multiplied by that factor. I think I came up with 2.68, and that enabled me to arrive at a figure that I did in that opinion that I gave you.” At this point, counsel for the City moved that Mr. Rokos be excluded as an expert appraiser. After hearing arguments by counsel, the court agreed and stated : “I think Mr. Rokos has been completely candid with the Court.

He has established himself as probably a very competent procurer of real estate for clients; he goes out and looks it over and advises the client as to the worth of it and probably negotiates it. Based on qualifications that you have sought to elicit from him, I cannot see where he does qualify as an expert appraiser. “(Mr. Schafer) (counsel for plaintiffs) Your Hon- or, we are trying to establish — this is a difficult and odd type of property, and we’ve had the appraisers for the City— “(The Court) Mr. Schafer, unless you can rehabilitate Mr.-again, Mr. Rokos, please understand, this is nowise criticism of you. I commend you for your ⁴⁷⁰ complete candor with the Court. You apparently did not know even the definition of fair market value which was propounded to you by Mr. Schafer.

Now, either you are an expert appraiser or you are not, and that’s what we’ve got to determine. “(Mr. Rokos) Isn’t a broker an appraiser? “(The Court) No, no, he isn’t, Mr. Rokos. And again, please don’t feel that the Court is in anywise critical of you. I know you by reputation; you are a very fine gentleman. “(Mr. Rokos) Thank you. “(The Court) Sorry that I find myself in this position, because I know that you may interpret it as casting a reflection on you, which it isn’t, but I must say I have to agree with Mr. Harrison. I don’t believe that you qualified, Mr. Rokos, as an expert appraiser.

Now, if you want to try to elicit some more questions, Mr. Schafer, I’ll be happy to have you do it. I don’t think anything further should go to this