Utah State Road Commission v. Johnson

550 P.2d 216, 1976 Utah LEXIS 848

• Court: Utah Supreme Court
• Decided: May 20, 1976
• Docket: 14225
• Status: Published

Opinions

ELLETT, Justice:

This is a condemnation matter. The jury awarded damages to the landowner in the amount of $95,000. The trial court ordered a new trial unless the owner would consent to a remittitur in the amount of $3,000.

The Road Commission appeals claiming that the trial court had no authority to grant a new trial conditionally. There is no merit to this claim. The appellant has the same right to appeal which he would have had, had the court denied the motion for a new trial outright. The fact that the landowner consented to a reduction of $3,000 does not harm the appellant — it has no effect on the chances of reversal; and if it loses the appeal it is $3,000 better off by reason of the remittitur.

The law is set out in 25A C.J.S. Damages § 201 as follows:

Where a verdict is excessive, the prevailing party may voluntarily remit the excess and judgment may be entered for the residue. Also a conditional provision for a remittitur is frequently made by the court, as where the trial court makes a remittitur a condition of the denial of a new trial . . .

(See also 66 C.J.S. New Trial § 209.) Utah follows the rule set out above. In the case of Duffy v. Union Pacific R. Co.,¹ this court said:

Section 104-40-2(5), U.C.A.1943 [Now Utah Rules of Civil Procedure, Rule 59(5)], provides that a verdict of a jury may be vacated and a new trial granted by the trial judge when damages are excessive and appear to have been given under the influence of passion and prejudice. Trial courts of this and other states grafted on to that provision the right of the trial court to refuse to grant a new trial when the damages were excessive, if the winning party would consent to a reduction. The provision was thus extended by judicial decision to permit trial courts to require a remission of part of the damages or suffer the consequences of a new trial.

The appellant also claims it was error for the court to allow the landowner to testify that the property was worth $120,000 to $125,000. The basis he gave for the value was: “Well, it is my life’s work and it provided me a good living. . . . I know what it is worth tq me.” Counsel then asked the witness: ■ “And is that what your testimony is based on, Mr. Johnson, is that what the subject property is worth to you ?” and the witness answered, “yes.”

The basis upon which the owner stated the value of the property was not permitted by law. What the property is worth to a seller is not a correct basis for an opinion,² and the motion to strike the answer should have been granted.

An expert witness for the landowner testified that the value of the taking was $92,000, while the expert for the appellant placed the value at $54,000. The jury awarded $95,000 showing that the testimony of the landowner had an influence on the verdict.

The court refused to grant a new trail if the landowner would consent to a $3,000 remittitur. The remittitur was agreed to by the respondent and this appeal followed.

This court has said:

An owner of property is always entitled to testify as to its value, and to express an opinion as to its value in condemnation proceedings. An owner does not have to qualify as an expert, nor be engaged in buying and selling real estate.³

However, in the case of Utah State Road Commission v. Steele Ranch⁴ an exception to the rule announced in the Provo River case was noted.

The case of State v. Larson⁵ shows the trend of the recent decisions and we think it correctly sets forth the law:

An owner of property may testify as to its value, . . . upon the assumption that he is particularly familiar with it and, because of his ownership, knows of the uses for which it is particularly adaptable. . . . However, when, as here, the owner has not used his intimate experience with and knowledge of the land’s uses as a basis for determining its fair market value, but has obviously determined it upon the application of an improper formula, his opinion fails to meet the test and, therefore, has no probative value.

Another case in point is that of Commonwealth, etc. v. Hopson⁶ which holds:

The landowner should not be permitted to testify as to market values unless he qualifies in accordance with the holding in Commonwealth v. Fister.

That case ⁷ held: “The net effect of our decision on this question is that the owner of real estate shall not be presumed adequately qualified to express an opinion of market values by reason of ownership alone.”

Another case of interest on the point is that of Rotge v. Murphy,⁸ wherein the court stated:

Appellant next complains because she was not permitted to testify to the market value of the lots in question. Appellant did not show herself to be sufficiently familiar with the cash market value of these lots to qualify her to express an opinion as to their value, and therefore the court did not err in excluding her testimony as to the value of the lots.

Because the court permitted the testimony of the owner to be given over objection and failed to strike it on motion it committed error which clearly had an improper effect on the jury. The reduction of the verdict to the figure testified to by the respondent’s expert witness does not cure the error. No one knows what the verdict would have been without the evidence given by the owner.

The judgment is reversed and the case is remanded for a new trial. Costs are awarded to the appellant.

HENRIOD, C. J., and CROCKETT, J., concur.

1 . 118 Utah 82, 218 P.2d 1080 (1950).

2 . U. S. v. Petty Motor Co., 327 U.S. 372, 66 S.Ct. 596, 90 L.Ed. 729 (1946).

3 . Provo River Water Users Assn. v. Carlson et al., 103 Utah 93, 133 P.2d 777 (1943).

4 . 533 P.2d 888 (Utah 1975).

5 . 54 Wash.2d 86, 338 P.2d 135 (1959).

6 . 396 S.W.2d 805 (Ky.1965).

7 . 373 S.W.2d 720 (Ky.1963).

8 .198 S.W.2d 932 [Court of Civil Appeals (Texas 1946)].