Opinion
June 29, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 580
Murray, Baker & Wendelken, Gerald W. Bennett, Ben S. Wendelken, Colorado Springs, for defendant in error, Archibald G. Barron.
Tarter & Tarter, Joseph M. Montano, Colorado Springs, for plaintiff in error.
Hartley Murray, Colorado Springs, for defendant in error, Alamo Properties, Inc.
Haney, Howbert & Akers, Colorado Springs, for defendant in error, The First National Bank of Colorado Springs.
COYTE, Judge.
This case was transferred from the Supreme Court pursuant to statute.
The parties to this action appear in the same order as below and shall be referred to in the same manner or by name.
This is an action in condemnation, whereby the county, hereafter referred to as petitioner, sought to acquire property owned by the respondent, Archibald G. Barron, located in the center of Colorado Springs and in which the other respondents claimed an interest. The issue of value was tried to the jury, which determined the land sought by the petition to be worth $380,000. Judgment was entered and the petitioner has brought appeal.
The land desired by the county consists of seven lots totaling 38,000 square feet, located in the business section in Colorado Springs. Directly across the street is the Alamo Hotel, located on approximately five lots. These five lots, and seven lots across the street, were purchased at the same time by the respondent, almost three years before the condemnation proceedings were initiated. The total purchase price was $360,000.
As part of his demands, respondent sought damages which he claimed would result when the seven lots were severed from the five lots occupied by the hotel. The petitioner resisted this claim, alleging the land underlying the Alamo Hotel was not a residue of the seven lots sought and therefore respondent could not claim damages to the five remaining lots. The petitioner requested an In limine proceeding on the question of whether or not the Alamo Hotel was a residue of the condemned property. The court refused, stating it would hear the evidence first and then determine the matter.
At the conclusion of the evidence, the trial court ruled as a matter of law that the Alamo Hotel was not a residue, and the jury was then instructed not to take the value of this property into account when determining the value of the seven condemned lots.
The petitioner, however, argues that reversal is required even though the jury was instructed to disregard the Alamo Hotel in its deliberations as to value. It acknowledges the fact that if a portion of respondent's property is seized and the remaining property is decreased in value as result, the respondent is entitled to compensation for this diminution in value. However, the county asserts that, as an initial step, the trial court should hold In limine hearing on whether or not the property not condemned is in fact a residue subject to a decrease in value, or whether it is a separate entity unaffected by the condemnation.
The petitioner claims that although the trial court correctly ruled at the end of the evidence that the Alamo Hotel property was not a residue, by allowing extensive evidence on this point to be given to the jury, the jury was irretrievably misled, and the instruction to disregard the evidence could not correct its error.
On reviewing this issue, we need not determine whether an In limine proceeding was a necessity, or whether the instructions to disregard were sufficient. If the petitioner felt the evidence on the question of residue was prejudicial it should have moved for a mistrial at the time the trial court ruled the Alamo Hotel was not a residue. Instead, the petitioner remained silent, awaiting the outcome of the verdict. When the verdict was announced, the petitioner claimed the prejudice cited above.
We consider this objection to come too late. Counsel cannot remain silent and await the outcome of the jury's deliberations and then determine to urge error if the results are not to his liking. If error is perceived, the time to notify the court is before the jury deliberates, not after.
For similar reasons we find the petitioner's next allegation that the closing remarks of respondent's counsel were prejudicial and justify a new trial, to be without merit. The petitioner points to eight statements which it deems as improper, and which would prejudice a jury. But the record fails to disclose where counsel objected to these alleged offensive remarks before the jury's verdict was returned. The objection comes too late. Error perceived is error waived if unobjected to in time to allow the trial judge opportunity to correct. Baker Metropolitan Water and Sanitation District v. Baca, 138 Colo. 239, 331 P.2d 511. Additionally, we have reviewed the record and in view of the instructions relative to arguments of counsel, neither we nor the trial court felt that remarks of counsel in his closing argument were sufficiently prejudicial to merit the awarding of a new trial.
The petitioner's next broad allegation of error deals with the award itself, which is claimed to be excessive as a matter of law. The petitioner argues that respondent purchased the entire tract, including the seven lots in question and the Alamo Hotel situate on five lots, for $360,000 about three years before this suit; that the award for only part of this tract was $20,000 in excess of the purchase price for the entire tract, proving, according to the petitioner, that the jury verdict was a result of passion and prejudice.
However, respondent argues that he putchased the property at a figure far below the actual market value of the property because of a forced sale. Even one of petitioner's witnesses on direct examination stated that the $360,000 figure paid for the entire tract was below the market value at the time. The reason it was low, according to this witness, was the fact it was a distress sale brought about by reason of a bank's threatened foreclosure, which the respondent was quick to act upon.
We conclude that the jury might properly have inferred that this $360,000 figure was not an accurate gauge of the true value of the property at the time the petitioner sought to obtain it. Merely because the respondent was fortunate enough to purchase property at an extremely favorable price, is no reason to hold this price to be the only one to be used in determining the actual value of the property. The jury might properly have disregarded this figure in arriving at the value of the property at the time of condemnation, and therefore we do not consider this to be proof of the jury's prejudice in this regard.
Insofar as the other evidence is concerned, four of respondent's experts testified the value of the property condemned was between $334,500 to $380,000. The two experts of the petitioner stated the value was somewhere between $274,000 and $282.000. The range thus given as value for this property varied from $274,000 to $380,000. Simply because the jury chose one end of the spectrum rather than the middle or lower end is not in itself grounds for reversal, provided there is competent evidence to support the higher figure. Denver v. Minshall, 109 Colo. 31, 121 P.2d 667.
Petitioner maintains that there is no competent evidence to support the verdict. The first reason given is that one of respondent's expert witnesses testified that a comparable piece of property was offered for sale at $55,000, but that there was no evidence of an acceptance of the offer. This figure if divided by the square footage involved to determine the dollar per square foot value, and then multiplied by the 38,000 square feet contained in the condemned property, would be approximately the figure arrived at by the expert of $360,000. The petitioner claims that this figure was arrived at by using the offered price instead of a sale price for comparable property as a base, which it claims to be an improper method of arriving at the true value.
Conceding the petitioner's argument on this point would not automatically require a reversal of the decision, for we note that this was but one of respondent's experts, and his determined value of $360,000 was not the one relied upon by the jury, which obviously used the figure given by another of respondent's experts. If one would eliminate this testimony entirely, the fact remains that there still exists evidence to support the actual award from the testimony of the witness who testified that the true value of the property was $380,000. In the case of Downing v. Ernst, 40 Colo. 137, 92 P. 230, the Supreme Court noted that where it affirmatively appears of record that the trial court as trier of fact did not use certain evidence in arriving at its determination of fact, any error in the admission of such evidence was harmless. We conclude that any error in the admission of this evidence was harmless in view of the other testimony presented.
Finally, on this issue the petitioner argues that the testimony of respondent's expert witness who valued the land at $380,000, was improper and should not have been used in determining the value of the land. We have reviewed this testimony and find no error.
To reach this figure of $380,000, the witness testified as to comparable sales in the area, as well as the worth of respondent's land if used for certain commercial uses. First, he testified that several other tracts of commercial property were sold up to three years previous to this suit, from about six dollars to a little over seven dollars per square foot. He then testified that none of these tracts used as comparables were as valuable as respondent's land because they were either smaller in area, not as well located, or were oddly shaped. For these reasons, the witness stated that the respondent's land was worth far more, because of its corner location, even shape, and excellent business location. The witness then went on to state that since 1967 the value of land in the area has increased sharply due in part to the fact that more of these tracts in the area were being acquired by large investors, who did not sell as readily as others. Therefore, the land available for potential purchasers had become more scarce and had increased in value.
When questioned about respondent's purchase of the property, the witness stated that this purchase price was not a good comparison because of the fact the respondent purchased it at a distress sale. The conclusion reached by this witness was that the property in question, if used for a combination downtown motel, subterranean parking and certain commercial activities, would be worth an estimated $380,000. When questioned about certain other similar projects in financial difficulties in Colorado Springs, the witness attributed their financial distress to either bad management or excessive costs. Thus, his value given for this property remained at the figure of $380,000.
There were obviously a number of variable factors used by this witness in arriving at his valuation of ten dollars per square foot. First, there were the comparable tracts of commercial property sold in the immediate area. This factor, in conjunction with the decreasing availability of land, and the factor of excellent location and size led to this expert's conclusion that the value of the property was $380,000. Certain of these factors were demonstrated facts, while others were based upon the witness's personal knowledge and experience. We conclude this estimate was based upon sufficient competent evidence, and therefore forms a valid basis for the jury, as trier of fact, to use in reaching its verdict.
Finally, it is urged that there was prejudicial error committed in examination of the petitioner's witnesses concerning the off-street parking ordinance. The petitioner introduced this ordinance so as to establish that the property being condemned could not be developed without off-street parking. According to the petitioner, the cross-examination of its witness was designed to insinuate that this ordinance was unconstitutional, and therefore to be ignored in determining property value. It is further argued by the petitioner that if in fact this ordinance had been given due weight, the verdict would have been lower because the comparable property which did not require off-street parking is indisputably more valuable than property which does require off-street parking. The petitioner argues that the jury would have had to ignore the ordinance in order to have found this property to be as valuable as property that does not require off-street parking.
The record does not support these contentions. Respondent's counsel asked the witness of the petitioner if he were familiar with the case known as Denver v. Denver Buick, Inc., 141 Colo. 121, 347 P.2d 919 (a case holding an off-street parking ordinance to be illegal). Counsel for the petitioner objected on the grounds this was an improper collateral attack on the constitutionality of the off-street parking ordinance. Respondent denied collaterally attacking the ordinance, stating he wished merely to inquire as to the factors used by the witness in distinguishing the value between properties permitting off-street parking, and properties not permitting such parking.
The objection was overruled and the petitioner's witness then answered that knowledgeable purchasers of property do take into consideration the Denver Buick case. When further questioned as to his own determinations of value of the subject property, the witness stated that this particular case was a factor he used in arriving at the value of the property.
Taken in its entirety, we find nothing objectionable in this testimony. The only reference to Denver Buick, supra, made by respondent was in asking whether or not it was a factor to be considered in arriving at the value of property. The petitioner's witness admitted that it was a factor and that he used it in his own determinations. Nothing was insinuated by the respondent concerning the holding of Denver Buick, supra. The entire gist of his questioning was merely to elicit from petitioner's witness the factors upon which he based his valuation. The only intimation that Denver Buick, supra had held off-street parking ordinances to be unconstitutional came from the petitioner, who stated as much before the jury.
Furthermore, we also note that upon cross-examination of one of respondent's witnesses concerning the difference in value of property requiring off-street parking, and property not requiring such parking, this witness stated:
'* * * I have legal opinion that the off-street parking requirement would likely fail under test in this area. * * *'
The petitioner's counsel made no objection to this statement, but merely reiterated the question, at which point the witness stated the difference in value would be 'very small.'
Thus, we find in the record testimony, brought about by petitioner's questioning, that the ordinance might be invalid; in addition, there are statement made by petitioner's counsel in the jury's presence that the respondent was attacking the constitutionality of the ordinance. If there were indeed an impression left with the jury that the ordinance might be ignored, it occurred not through the respondent, but by reason of the petitioner's counsel's questions and statements made in the presence of the jury, and therefore is no basis for reversal.
In summation, we find the evidence sufficient and competent to support the award of $380,000 for the subject property. None of the alleged errors have sufficient merit to warrant reversal.
Judgment affirmed.
ENOCH and DUFFORD, JJ., concur.