City of Winston-Salem v. Cooper

323 S.E.2d 750, 72 N.C. App. 173, 1984 N.C. App. LEXIS 3994
CourtCourt of Appeals of North Carolina
DecidedDecember 28, 1984
DocketNo. 8421SC414
StatusPublished
Cited by1 cases

This text of 323 S.E.2d 750 (City of Winston-Salem v. Cooper) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Winston-Salem v. Cooper, 323 S.E.2d 750, 72 N.C. App. 173, 1984 N.C. App. LEXIS 3994 (N.C. Ct. App. 1984).

Opinion

BRASWELL, Judge.

The City of Winston-Salem (hereinafter the City) has appealed from a judgment awarding the defendants, Norman L. Cooper and Ruth S. Cooper, $278,500.00 as compensation for property acquired by condemnation. The City alleges as error three rulings of the trial court relating to evidentiary matters. Because the trial court erred by denying the City an opportunity to adequately cross-examine defendants’ experts, we reverse and remand for a new trial.

This condemnation proceeding was instituted by the City to acquire approximately 51 acres of land owned by the defendants. On 21 August 1981, the City took possession of the property by depositing $144,200.00 with the court. In August 1982, the defendants filed an answer. Following the entry of a 7 July 1983 order which settled all issues other than damages, a Commissioners’ hearing was conducted. The Commissioners awarded the defendants $144,840.00 compensation. Defendants excepted and demanded a jury trial. The trial was conducted at the 28 November 1983 term of Forsyth County Superior Court. During the trial each party offered extensive testimony from various experts, much of which was objected to, regarding the value of the taken property. Based upon this evidence, the jury awarded the defendants $278,500.00. From the judgment entered upon the verdict, the City appealed.

The City brings forth and argues three questions relating to the admission or the exclusion of certain testimony of the parties’ expert witnesses. We believe that question two relating to the refusal of the court to allow cross-examinations of two of Mr. [175]*175Cooper’s experts regarding their knowledge of property values in the subject area is dispositive of the City’s appeal.

Defendants offered and the court accepted Mr. Shavitz and Mr. Peters as expert witnesses in the field of real estate appraisals. After testifying that they had examined the sale values of other properties in the area, each witness testified as to his opinion regarding the fair market value of the subject property. Mr. Shavitz placed the value at $4,600.00 per acre and Mr. Peters estimated the value to be $4,850.00 per acre. On cross-examination the City asked the following question of Mr. Shavitz.

Q. Mr. Shavitz, could you, to begin with, would you please step over to the aerial photo [Defendants’ Exhibit 5] and point out to the jury any vacant acreage tract on the entire aerial photo that has ever sold in any time in history for $3,000 or more?

The City posed essentially the same question to Mr. Peters. Each time the defendants objected and each time the court sustained their objection. On voir dire examination, each witness admitted that they knew of no property shown on Defendants’ Exhibit 5, an aerial photograph of the 600-800 acres around the subject property, which had ever sold for as much as $3,000 per acre.

The City contends that the court’s ruling denied them the opportunity to sift the witnesses with regards to their knowledge of property values in the subject area. They argue that they are not attempting to put before the jury prices of non-comparable real estate, but were merely attempting to show that the experts’ opinions were not based upon a knowledge of prices in the area.

The defendants respond that the trial court properly sustained the objections based upon the law established by our Supreme Court in Power Company v. Winebarger, 300 N.C. 57, 265 S.E. 2d 227 (1980). Justice Exum writing for the Court stated:

The impeachment purpose of the cross-examination is satisfied when the witness responds to a question probing the scope of his knowledge. Any further inquiry which states or seeks to elicit the specific values of property dissimilar to the parcel subject to the suit is at best mere surplusage. At worst it represents an attempt by the cross-examiner to con[176]*176vey to the jury information which should be excluded from their consideration. When wilful and persistent, such an attempt undercuts the applicable rule of evidence and tends to confuse the jury. It was undoubtedly for these reasons that the rule was explained by Justice (later Chief Justice) Sharp in Carver v. Lykes, 262 N.C. 345, 356-57, 137 S.E. 2d 139, 148 (1964), as follows:
“The ‘utmost freedom of cross-examination’ to test a witness’ knowledge of values . . . does not mean that counsel may ask a witness if he doesn’t know that a certain individual sold his property for a stated sum with no proof of the actual sales price other than the implication in his question. . . . Where such information is material it is easy enough to establish by the witness himself, whether a certain property has been sold to his knowledge and, if so, whether he knows the price. If he says he does not know, his lack of knowledge is thus established by his own testimony and doubt is cast on the value of his opinion. ... If he asserts his knowledge of the sale and, in response to the cross-examiner’s question, states a totally erroneous sales price, is the adverse party bound by the answer or may he call witnesses to establish the true purchase price? Unless per chance the purchase price of the particular property was competent as substantive evidence of the value of the property involved in the action, it would seem that the party asking the question should be bound by the answer. To hold otherwise would open a Pandora’s box of collateral issues.” (Citations omitted).
For clarity we here restate the following controlling principles:
(1) Where the value of a particular parcel of realty is directly in issue, the price paid at voluntary sales of land similar in nature, location, and condition to the land involved in the suit is admissible as independent evidence of the value of the land in question, if the sales are not too remote in time. Whether two properties are sufficiently similar to admit the sales price of one as circumstantial evidence of the value of the other is a question to be determined by the trial [177]*177judge, usually upon voir dire. State v. Johnson, supra; Redevelopment Commission v. Panel Co., 273 N.C. 368, 159 S.E. 2d 861 (1968).
(2) Conversely, where a particular property is markedly dissimilar to the property at issue, the sales price of the former may not be introduced or alluded to in any manner which suggests to the jury that it has a bearing on the estimation of the value of the latter.
(3) Where a witness has been offered to testify to the value of the property directly in issue, the scope of that witness’ knowledge of the values and sales prices of dissimilar properties in the area.may be cross-examined for the limited purposes of impeachment to test his credibility and expertise. Templeton v. Highway Commission, supra.
(4) Under these limited impeachment circumstances, however, it is improper for the cross-examiner to refer to specific values or prices of noncomparable properties in his questions to the witness. Carver v. Lykes, supra. Moreover, if the witness responds that he does not know or remember the value or price of the property asked about, the impeachment purpose of the cross-examination is satisfied and the inquiry as to that property is exhausted. Highway Commission v. Privett, supra.

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Related

City of Winston-Salem v. Cooper
340 S.E.2d 366 (Supreme Court of North Carolina, 1986)

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Bluebook (online)
323 S.E.2d 750, 72 N.C. App. 173, 1984 N.C. App. LEXIS 3994, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-winston-salem-v-cooper-ncctapp-1984.