Denver Urban Renewal Authority v. Hayutin

583 P.2d 296
CourtColorado Court of Appeals
DecidedAugust 28, 1978
Docket76-295
StatusPublished
Cited by20 cases

This text of 583 P.2d 296 (Denver Urban Renewal Authority v. Hayutin) is published on Counsel Stack Legal Research, covering Colorado Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Denver Urban Renewal Authority v. Hayutin, 583 P.2d 296 (Colo. Ct. App. 1978).

Opinion

583 P.2d 296 (1978)

DENVER URBAN RENEWAL AUTHORITY, a body corporate and politic of the State of Colorado, Petitioner-Appellee and Cross-Appellant,
v.
Maurice HAYUTIN, Respondent-Appellant and Cross-Appellee.

No. 76-295.

Colorado Court of Appeals, Division III.

April 27, 1978.
Rehearing Denied June 29, 1978.
Certiorari Granted August 28, 1978.

*298 Benedetti, Opperman & Martinez, P. C., Marlin D. Opperman, Denver, for petitioner-appellee and cross-appellant.

Gelt & Webster, P. C., Louis E. Gelt, Richard H. Goldberg, Denver, for respondent-appellant and cross-appellee.

VanCISE, Judge.

Petitioner, Denver Urban Renewal Authority (DURA), instituted this eminent domain proceeding in the trial court in November 1974 to acquire real property, consisting of 26,294 square feet of land and five buildings located at 775 Champa Street within the Aurari Urban Renewal Project, and owned and used by respondent, Maurice Hayutin (owner), in his auto parts business. Following a hearing before a commission of three freeholders on the issue of valuation, the commission filed a certificate of ascertainment and assessment which determined the reasonable market value of the property as of January 3, 1975, to be $170,000, and judgment was entered thereon. The owner appeals the denial of certain costs, expenses, and interest. DURA cross-appeals the amount of the valuation award. We reverse the judgments on the valuation award and the interest, and remand the cause with directions as to the award, costs, and interest.

THE VALUATION AWARD

DURA bases its appeal on the reception of certain evidence, over objection, from the three witnesses who testified for the owner as to the valuation of the property—the owner himself, his wife, and a real estate appraiser—and on the denial of its motions to strike the testimony of each.

I

DURA contends that the commission erred in allowing the owner's real estate appraiser, admitted to be an expert, to testify to allegedly comparable sales without complying with § 38-1-118, C.R.S.1973, and then to give an opinion as to value of the subject property ($215,000) based on these other sales.

Section 38-1-118, C.R.S.1973, provides:
"Any witness in a proceeding . . . wherein the value of real property is involved, may state the consideration involved in any recorded transfer of property, otherwise material and relevant, which was examined and utilized by him *299 in arriving at his opinion, if he has personally examined the record and communicated directly and verified the amount of such consideration with either the buyer or seller. Any such testimony shall be admissible as evidence of such consideration and shall remain subject to rebuttal as to the time and actual consideration involved and subject to objections as to its relevancy and materiality." (emphasis added)

The appraiser indicated that the market data approach was the most credible indication of value for the subject property. In arriving at his opinion as to the market value, he considered ten land sales and six improved property sales, and testified to the sale price of each. In at least four of the land sales he did not personally verify the sale price with either the buyer or the seller. Of the six improved property sales, two were, and four were not, personally confirmed by the witness. He stated that most of the sales, if not personally verified by him, had been checked by someone on his staff. On that basis, the commission overruled DURA's objections and denied its later motion to strike the appraiser's testimony as to the sales not personally confirmed by him and his opinion as to value based on those sales.

In City of Denver v. Quick, 108 Colo. 111, 113 P.2d 999 (1941), an appraisal witness in a condemnation case was prohibited from testifying as to comparable sales data because it was hearsay. Thereafter, what is now § 38-1-118, C.R.S.1973, was enacted by the General Assembly. By this statute a legislative exception to the hearsay rule was created, but it is limited in its application. The use in the statute of the terms "personally" and "communicated directly" do not mean by or through someone other than the witness.

Quick has never been overruled, and under it other sales price testimony not rendered admissible under the terms of the statute must be excluded as hearsay. Therefore, the sales data based on verification by others was inadmissible, and the opinion testimony, being based at least in part on this evidence, should have been stricken.

Since the commission's ascertainment of value ($170,000) appears to have been based primarily on the valuation testimony of the two appraisers, $132,000 by DURA's and $215,000 by the owner's appraiser, receiving and refusing to strike the owner's appraiser's opinion testimony was reversible error.

Since the other issues raised on appeal may come up again on the retrial, we will address them at this time.

II

DURA asserts that the owner's opinion as to value ($250,000 to $275,000) was based upon improper considerations and therefore should not have been received in evidence. We agree.

Over DURA's objections, the owner was allowed to testify concerning his five year search for a replacement property, including his investigation of a number of properties that were on the market for sale. He was not permitted to relate the prices at which they were being offered, although he knew. He said that the information as to the asking prices for these properties assisted him in arriving at his conclusion or opinion as to what his own property was worth.

Also, over objections, the owner was allowed to testify to the $300,000 price he paid for the property purchased by him as a replacement for the property being taken, even though he admitted that it was not comparable. He stated that his experience in the acquisition of the new property helped him to determine the value of the old.

The general rule is that an owner may state his opinion of the reasonable market value of his own property without having to be qualified as an expert witness. DURA v. Berglund-Cherne Co., Colo., 568 P.2d 478 (1977); Board of Directors of the Baker Metropolitan Water & Sanitation District v. Calvaresi, 156 Colo. 173, 397 P.2d 877 (1965). However, an owner's opinion is *300 not admissible where it is based upon improper considerations. Testimony regarding the price paid for replacement property in a transaction that was not a comparable sale is incompetent. See Board of County Commissioners v. Vail Associates, Ltd., 171 Colo. 381, 468 P.2d 842 (1970); Department of Highways v. Schulhoff, 167 Colo. 72, 445 P.2d 402 (1968). And opinion testimony based almost entirely on the offering prices as distinguished from the sale prices of replacement properties and on the price paid for a non-comparable property is inadmissible. See City & County of Denver v. Hinsey, 177 Colo. 178, 493 P.2d 348 (1972); Ruth v. Department of Highways, 145 Colo.

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Bluebook (online)
583 P.2d 296, Counsel Stack Legal Research, https://law.counselstack.com/opinion/denver-urban-renewal-authority-v-hayutin-coloctapp-1978.