ALSA Associates v. City of New Haven

873 A.2d 1025, 89 Conn. App. 504, 2005 Conn. App. LEXIS 228
CourtConnecticut Appellate Court
DecidedJune 7, 2005
DocketAC 25000
StatusPublished

This text of 873 A.2d 1025 (ALSA Associates v. City of New Haven) is published on Counsel Stack Legal Research, covering Connecticut Appellate Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
ALSA Associates v. City of New Haven, 873 A.2d 1025, 89 Conn. App. 504, 2005 Conn. App. LEXIS 228 (Colo. Ct. App. 2005).

Opinion

Opinion

HENNESSY, J.

This is an appeal by the plaintiff, ALSA Associates, from the judgment of the trial court increasing the statement of compensation filed by the defendant, the city of New Haven, as a result of a condemnation proceeding involving the plaintiffs real property. On appeal, the plaintiff claims that the court improperly failed to consider several factors in its valuation of the property. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiffs appeal. On November 21, 2002, pursuant to General Statutes §§ 7-148 and 8-129 et seq., the defendant filed a statement of compensation in the amount of $150,000 for the taking of the property known as 243 Grand Avenue (property). The plaintiff appealed to the Superior Court pursuant to General Statutes § 8-132 (a), claiming that it was aggrieved by the inadequacy of the award.

At the hearing before the court, the plaintiff presented evidence of the fair market value of the property, including the lease between the plaintiff and Connecticut Con[506]*506venience, Inc.,1 for a convenience store on the property, a purchase agreement for the property between the same parties2 and an appraisal by the Michaud Company (Michaud) valuing the property at $320,000. The defendant presented an appraisal by O. R. & L. Appraisals and Consulting, valuing the property at $150,000. After a hearing, the court increased the amount of compensation by $50,000, plus interest. This appeal followed.

I

The plaintiff first claims that the court improperly found that the purchase agreement for the property was unexecuted and that the option to renew the lease had not been exercised. We disagree.

“To the extent that the trial court has made findings of fact, our review is limited to deciding whether such findings were clearly erroneous. . . . The trial court’s findings are binding upon this court unless they are clearly erroneous in light of the evidence.” (Internal quotation marks omitted.) Stohlts v. Gilkinson, 87 Conn. App. 634, 642, 867 A.2d 860, cert. denied, 273 Conn. 930, 873 A.2d 1000 (2005). “It is well established that [i]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony. . . . On appeal, we do not retry the facts or pass on the credibility of witnesses. . . . We afford great weight to the trial court’s findings because of its function to weigh the evidence and determine credibility.” (Internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, 272 Conn. 14, 53, 861 A.2d 473 (2004).

[507]*507A

The plaintiff argues that the court’s finding that the purchase agreement for the property was unexecuted3 is clearly erroneous. We are not persuaded.

Black’s Law Dictionaiy defines executed as “[completed; carried into full effect; already done or performed; signed . . . .” Black’s Law Dictionary (6th Ed. 1990). Similarly, an executed contract is defined as a “[c]ontract which has been fully performed by the parties.” Id. The plaintiff argues that because the contract was signed by the parties, it was executed, and the court’s finding that the contract was unexecuted is clearly erroneous. It is undisputed, however, that the contract was never performed fully by the parties due to the eminent domain proceedings initiated by the defendant. As Black’s Law Dictionary indicates, there is more than one meaning for the term “execute.” Because the plaintiff failed to seek an articulation as to which of the two equally plausible meanings the court intended, we cannot conclude that the court’s finding of fact was clearly erroneous. As a result, the plaintiffs claim must fail.

B

The plaintiff next argues that the court’s finding that the option to renew the lease had not been exercised was clearly erroneous. Again, we are not persuaded.

At trial, the plaintiff presented evidence via the testimony of Sam Levine, the plaintiffs general manager, that Connecticut Convenience, Inc., exercised the option to renew the lease of the property. After [508]*508acknowledging Levine’s testimony, however, citing the terms of the lease,4 the court stated that “[i]f the tenant wishes to exercise [the option to renew], it must do so by finnishing the landlord with written notice of exercise of the option to renew no later than 180 days prior to the expiration of the term of the lease. I pointed out to you that there was nothing put in evidence to establish that the exercise had taken place for the option.”

As stated previously: “[I]n a case tried before a court, the trial judge is the sole arbiter of the credibility of the witnesses and the weight to be given specific testimony.” (Internal quotation marks omitted.) Northeast Ct. Economic Alliance, Inc. v. ATC Partnership, supra, 272 Conn. 53. Given that role, we must give great weight to the court’s refusal to rely on the self-serving statement of Levine regarding the exercise of the option to renew. Even after the plaintiff was notified that Levine’s testimony alone would be insufficient, the plaintiff did not seek to introduce either corroborating testimony or the written notice of the exercise of the option required by the lease. We therefore cannot conclude that the court’s finding that the option to renew had not been exercised was clearly erroneous.

II

The plaintiff next claims that the court failed to consider the sales contract, the lease agreement and its appraiser’s use of historical sales data, and improperly relied on the opinion of the defendant’s appraiser in arriving at the valuation of the property. We disagree.

[509]*509“In condemnation proceedings, the referee is charged with the duty of making an independent determination of the value of the property involved and its fair compensation. ... He may accept or reject the testimony of an expert offered by one party or the other in whole or in part.” (Citations omitted; internal quotation marks omitted.) Hayes v. Coventry, 2 Conn. App. 351, 353-54, 478 A.2d 620 (1984). “[N]o one method of valuation is controlling and . . . the [court] may select the one most appropriate in the case before [it]. . . . Moreover, a variety of factors may be considered by the trial court in assessing the value of such property. [T]he trier arrives at his own conclusions by weighing the opinions of the appraisers, the claims of the parties, and his own general knowledge of the elements going to establish value, and then employs the most appropriate method of determining valuation. . . . The trial court has broad discretion in reaching such conclusion, and [its] determination is reviewable only if [it] misapplies or gives an improper effect to any test or consideration which it was [its] duty to regard. Such determinations are findings of fact, and therefore must stand unless clearly erroneous.” (Internal quotation marks omitted.) Franc v. Bethel Holding Co., 73 Conn. App.

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Related

Stohlts v. Gilkinson
867 A.2d 860 (Connecticut Appellate Court, 2005)
Eljay Realty Co. v. Argraves
177 A.2d 677 (Supreme Court of Connecticut, 1962)
Hayes v. Town of Coventry
478 A.2d 620 (Connecticut Appellate Court, 1984)
Northeast Ct. Economic Alliance, Inc. v. ATC Partnership
861 A.2d 473 (Supreme Court of Connecticut, 2004)
Franc v. Bethel Holding Co.
807 A.2d 519 (Connecticut Appellate Court, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
873 A.2d 1025, 89 Conn. App. 504, 2005 Conn. App. LEXIS 228, Counsel Stack Legal Research, https://law.counselstack.com/opinion/alsa-associates-v-city-of-new-haven-connappct-2005.