Department of Transportation v. Fox

389 S.E.2d 640, 98 N.C. App. 61, 1990 N.C. App. LEXIS 298
CourtCourt of Appeals of North Carolina
DecidedApril 3, 1990
DocketNo. 899SC651
StatusPublished

This text of 389 S.E.2d 640 (Department of Transportation v. Fox) 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
Department of Transportation v. Fox, 389 S.E.2d 640, 98 N.C. App. 61, 1990 N.C. App. LEXIS 298 (N.C. Ct. App. 1990).

Opinions

ARNOLD, Judge.

Appellant makes a number of assignments of error, but we examine only two.

The State contends it was prejudicial error for the trial court to allow cross-examination of the State’s appraisal witness concerning his knowledge of the sale prices of several noncomparable properties located in the area. This Cross-examination was an attempt to impeach the witness by testing his knowledge of nearby property.

[63]*63Larry Bowes, a licensed auctioneer and insurance agent, testified for DOT that the appropriation of appellee’s five acres had increased the value of their remaining property by more than $500,000. On cross-examination, the following exchanges occurred between Mr. Maxwell, defendants’ counsel, and Mr. Bowes:

Q: (Mr. Maxwell) . . . Now, are you aware Mr. Whitfield bought that particular piece of property for the Express Mart for about five thousand dollars an acre—
HARRIS (plaintiff’s counsel): Objection.
MAXWELL: I’m asking if he’s aware of it.
COURT: Go ahead and finish your question.
Q: Okay. And, that he actually sold it in 1986 for sixty-five thousand dollars an acre?
COURT: You may answer that question.
A: I was aware that he bought it, but not of the figures he got for it.
Q: Well, let’s put it this way. Have you had a chance in preparation for this to actually check the sale of a property that was about one mile from the subject property we’re talking about, the Fox property. The Express Mart, purchased in 1987 for ninety-seven thousand dollars —
HARRIS: Objection. Objection, Your Honor.
COURT: He’s just asking if he’s aware of it.
HARRIS: Well, I’m objecting to him giving the figures.
COURT: Objection is overruled.
Q: And, if they sold that for ninety-seven thousand dollars according to the tax stamps downstairs, for sixty-four thousand dollars per acre —
HARRIS: Objection.
COURT: Overruled.
Q: —are you aware of that?
A: No, sir. I wasn’t aware of that figure.
[64]*64Q: Okay. And, you mentioned Neb King’s property in your testimony, did you not? That particular piece of property is about one point two miles from this property. It’s between, closer to the Fox property than Mr. Chambers’ property and a little bit further than the Express Mart, is it not?
A: Yes, sir.
Q: Okay. Were you aware that that particular piece of property sold for fifty-two thousand—
HARRIS: We object to the figures, Your Honor.
COURT: If he is aware, he may answer.
Q: Were you aware that that particular piece of property sold for fifty-two thousand dollars?
A: I was aware of that particular property.
Q: And, based on what you know about the properties, you’re not surprised, or wouldn’t be surprised, that Mr. Chambers paid eighty-five thousand dollars for —
HARRIS: Objection.
COURT: Well, sustained as to that.
Q: Okay. You used that as a comparable. You know that one sold for a hundred and twenty-five thousand dollars?
A: Yes, sir.
Q: Which is eighty-five thousand dollars an acre?
A: Yes, sir. I have on there that average.
Q: Okay. And, what do you know about Mr. Chambers’ property selling for eighty-five thousand dollars an acre?
HARRIS: Objection.
Q: The Neb King selling for fifty-two thousand dollars? HARRIS: Objection.
Q: Is the Express Mart selling for sixty-four thousand dollars an acre—
HARRIS: Objection.
[65]*65Q: —closer to this property?
COURT: The three objections are overruled.

In Power Co. v. Winebarger, 300 N.C. 57, 265 S.E.2d 227 (1980), the Supreme Court, in a similar situation, ordered a new trial for the defendants when improper references were made to values and sales prices of property not comparable to the land at issue. During cross-examination in Winebarger of defendants’ value experts, plaintiffs counsel continually alluded to alleged sales prices of parcels of land not involved in the case. Id. at 59-61, 265 S.E.2d at 229-30.

As in the case before us, there was no showing in Winebarger that any of the properties referred to in the questions were comparable to defendants’ land. Generally, if a proper foundation is laid showing similarity in nature, location, and condition to the land involved, the price paid at a voluntary sale of land is admissible as substantive evidence of the value of the property in question. 1 Brandis on North Carolina Evidence § 100 (3d ed. 1988); Winebarger, at 62, 265 S.E.2d at 230. Whether two properties are sufficiently similar is a question to be determined by the trial judge. Id. at 65, 265 S.E.2d at 232. “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.” Id. at 66, 265 S.E.2d at 232.

If a witness has offered testimony concerning the value of property directly in issue, that witness’ knowledge of the values and sales prices of dissimilar properties in the area may be cross-examined to impeach his credibility and expertise. Id.

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 (citation omitted). 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 (citation omitted). If, on the other hand, the witness asserts his knowledge on cross-examination of a particular value or sales price of noncomparable property, he may be asked to state that value or price only when the trial judge [66]*66determines in his discretion that the impeachment value of a specific answer outweighs the possibility of confusing the jury with collateral issues (emphasis added).

Id. at 66, 265 S.E.2d at 232-33.

Applying Winebarger to the case before us, it is clear that appellees’ counsel committed reversible error. During his cross-examination of Mr.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Duke Power Co. v. Winebarger
265 S.E.2d 227 (Supreme Court of North Carolina, 1980)
Pigott v. City of Wilmington
280 S.E.2d 453 (Supreme Court of North Carolina, 1981)
Barnes v. North Carolina State Highway Commission
126 S.E.2d 732 (Supreme Court of North Carolina, 1962)
State Highway Commission v. Yarborough
170 S.E.2d 159 (Court of Appeals of North Carolina, 1969)
Board of Transportation v. Chewning
274 S.E.2d 902 (Court of Appeals of North Carolina, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
389 S.E.2d 640, 98 N.C. App. 61, 1990 N.C. App. LEXIS 298, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-transportation-v-fox-ncctapp-1990.