Lobao v. Commonwealth

Massachusetts Appeals Court

Lobao v. Commonwealth

346 N.E.2d 922, 4 Mass. App. Ct. 809, 1976 Mass. App. LEXIS 598

DecidedMay 12, 1976

StatusPublished

This text of 346 N.E.2d 922 (Lobao v. Commonwealth) is published on Counsel Stack Legal Research, covering Massachusetts Appeals Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lobao v. Commonwealth, 346 N.E.2d 922, 4 Mass. App. Ct. 809, 1976 Mass. App. LEXIS 598 (Mass. Ct. App. 1976).

Pincite

Opinion

1. Passing the absence of an offer of proof (see Ford v. Worcester, 339 Mass. 657, 658-662 [1959]), we hold that the judge did not abuse his discretion (Muzi v. Commonwealth, 335 Mass. 101, 106 [1956]) in refusing to allow the witness Mass to express his opinion (if he had one) of the highest and best use of the industrially zoned land lying along Route 1 in Danvers. No effort was made to qualify him as an appraiser. Contrast the Muzi case, supra, at 102-105. On the evidence, the witness’ experience as the owner of similarly zoned land in the vicinity had been confined to a single parcel which had been sold at some unspecified time. His experience as a developer of industrial parks (as opposed to his experience in constructing buildings in such parks) was limited to a single instance in Florida at another unspecified time. See Lee Lime Corp. v. Massachusetts Turnpike Authy. 337 Mass. 433, 437 (1958). Compare R.H. White Realty Co. Inc. v. Boston Redevelopment Authy. 3 Mass. App. Ct. 505, 508-509 (1975). 2. The case was tried prior to July 1, 1974, and no exception was saved to either of the other exclusions still complained of. See Jones v. Bailey, 1 Mass. App. Ct. 41, 44-45 (1973). There is no merit to either of the contentions advanced. 3. The naked fact that Lee had purchased his parcel from a trustee in bankruptcy (as to which see 11 U.S.C. § 110[f], 76 Stat. 572) did not overcome the presumption (Epstein v. Boston Housing Authy. 317 Mass. 297, 301 [1947]) that the sale price of that parcel had been fixed freely and not under compulsion. See United-Carr Inc. v. Cambridge Redevelopment Authy. 362 Mass. 597, 599-601 (1972). Compare Atherton v. Emerson, 199 Mass. 199, 210 (1908). 4. The evidence of the prices fixed by juries for other properties similarly taken would not have been admissible in evidence (Amory v. Commonwealth, 321 Mass. 240, 257 [1947]) and did not require the granting of the motion for a new trial. Nor does a review of the entire transcript disclose any abuse of discretion in the denial of that motion. See Appelstein v. Boston Redevelopment Authy. 359 Mass. 746 (1971); Loschi v. Massachusetts Port Authy. 361 Mass. 714, 715-716 (1972). Judgment is to be entered in accordance with the verdict.

So ordered.

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

1. Passing the absence of an offer of proof (see Ford v. Worcester, 339 Mass. 657, 658-662 [1959]), we hold that the judge did not abuse his discretion (Muzi v. Commonwealth, 335 Mass. 101, 106 [1956]) in refusing to allow the witness Mass to express his opinion (if he had one) of the highest and best use of the industrially zoned land lying along Route 1 in Danvers. No effort was made to qualify him as an appraiser. Contrast the Muzi case, supra, at 102-105. On the evidence, the witness’ experience as the owner of similarly zoned land in the vicinity had been confined to a single parcel which had been sold at some unspecified time. His experience as a developer of industrial parks (as opposed to his experience in constructing buildings in such parks) was limited to a single instance in Florida at another unspecified time. See Lee Lime Corp. v. Massachusetts Turnpike Authy. 337 Mass. 433, 437 (1958). Compare R.H. White Realty Co. Inc. v. Boston Redevelopment Authy. 3 Mass. App. Ct. 505, 508-509 (1975). 2. The case was tried prior to July 1, 1974, and no exception was saved to either of the other exclusions still complained of. See Jones v. Bailey, 1 Mass. App. Ct. 41, 44-45 (1973). There is no merit to either of the contentions advanced. 3. The naked fact that Lee had purchased his parcel from a trustee in bankruptcy (as to which see 11 U.S.C. § 110[f], 76 Stat. 572) did not overcome the presumption (Epstein v. Boston Housing Authy. 317 Mass. 297, 301 [1947]) that the sale price of that parcel had been fixed freely and not under compulsion. See United-Carr Inc. v. Cambridge Redevelopment Authy. 362 Mass. 597, 599-601 (1972). Compare Atherton v. Emerson, 199 Mass. 199, 210 (1908). 4. The evidence of the prices fixed by juries for other properties similarly taken would not have been admissible in evidence (Amory v. Commonwealth, 321 Mass. 240, 257 [1947]) and did not require the granting of the motion for a new trial. Nor does a review of the entire transcript disclose any abuse of discretion in the denial of that motion. See Appelstein v. Boston Redevelopment Authy. 359 Mass. 746 (1971); Loschi v. Massachusetts Port Authy. 361 Mass. 714, 715-716 (1972). Judgment is to be entered in accordance with the verdict.

So ordered.

Cite This Page — Counsel Stack

Bluebook (online)

346 N.E.2d 922, 4 Mass. App. Ct. 809, 1976 Mass. App. LEXIS 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lobao-v-commonwealth-massappct-1976.

Opinion

Related

Cite This Page — Counsel Stack