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New Hampshire Department of Transportation v. Pasquale Franchi

July 18, 2012


The opinion of the court was delivered by: Hicks, J.

a.m. on the morning of their release. The direct address of the court's home page is:

Argued: April 5, 2012

The appellant in this eminent domain case, Pasquale Franchi (the landowner), appeals an order of the Superior Court (Brown, J.) denying his motion in limine to preclude expert testimony, as well as several other Superior Court (Wageling, J.) rulings at trial. We affirm.

The record supports the following facts. In the 1980s, the landowner purchased a 77.2 acre parcel of land in Conway, abutting the Cranmore

Mountain ski area. On June 6, 2007, the State filed a declaration of taking with the New Hampshire Board of Tax and Land Appeals (BTLA) acquiring from the landowner's property approximately 6.38 acres, consisting of a strip of land, approximately 200 feet wide, running north and south through the center of the property.

Following a hearing, the BTLA awarded the landowner $1,000,000 as just compensation. See RSA 498-A:25 (2010). The State and the landowner both filed petitions in superior court for a reassessment of damages. See RSA 498-A:27 (2010). On December 13, 2010, a jury returned a verdict awarding $560,000 as just compensation. The landowner now appeals.

In an eminent domain proceeding, the preferred method for determining condemnation damages for a partial taking is the "before and after method, whereby the value of the remainder of the tract after the taking is deducted from the value of the whole tract before the taking." Daly v. State, 150 N.H. 277, 280 (2003) (quotation omitted). The owner is entitled to have the land appraised at the most profitable or advantageous use to which it could be put on the day of the taking. Id. at 279. The landowner is compensated "not only [for] the fair market value of the property actually taken, but also . . . for the effect of the taking, if any, on the entire property, which is referred to as severance damages." Id. at 280 (quotation omitted). Use of the "before and after" method automatically accounts for severance damages. Id.

There is no dispute in this case that there was a taking of the landowner's property, and that he is entitled to compensation. Rather, the landowner contends that certain errors made both before trial and at trial require that we reverse and remand for a new trial to determine just compensation. Specifically, he argues that the trial court's rulings on a motion in limine and his request for jury instructions, as well as several evidentiary rulings, were erroneous.

Several of the challenged rulings arose out of the testimony of the State's expert, Duane Cowall, a certified commercial property appraiser. Cowall produced two separate appraisals assessing the value of the property as of the date of the taking, June 6, 2007. Both used the "comparative sales approach," which determines the fair market value of property "by comparing similar properties that have recently been sold with the property being appraised, identifying appropriate units of comparison, and making adjustments to the sale prices (or unit prices, as appropriate) of the comparable properties, based on relevant, market-derived elements of comparison." Appeal of Pennichuck Water Works, 160 N.H. 18, 38 (2010) (quotation omitted). Because this was a partial taking, Cowall determined the amount of damages by determining the difference between the fair market value of the property before the taking and the fair market value after the taking. See Daly, 150 N.H. at 280.

In his first appraisal, completed on June 5, 2008, Cowall determined that the landowner's property was worth $635,000 before the taking and $475,000 after the taking, resulting in $160,000 in damages. The State provided the landowner with a copy of the appraisal, and the landowner provided the State with his own appraisal, based upon "a very dense development," valuing damages at $3,070,000.

In light of the substantial disparity between the parties' appraisals, the State asked Cowall to prepare a second appraisal and assess the physical, legal, and economic viability of a higher density development. Cowall's second appraisal, prepared on July 17, 2009, concluded that the value of the landowner's property was $1,690,000 before the taking and $1,130,000 after the taking, resulting in $560,000 in damages. On July 9, 2010, Cowall included a feasibility report with the second appraisal. At trial, Cowall testified about the second appraisal and explained his conclusions from it. He also testified that prior to completing the analysis for the second appraisal, he had completed an earlier appraisal and explained his reasons for changing it. He also explained to the jury his feasibility report regarding the second appraisal.

Prior to trial, the landowner moved in limine to exclude Cowall's testimony, arguing that pursuant to New Hampshire Rules of Evidence 401 and 702, the second appraisal was irrelevant and did not meet the required threshold level of reliability. The trial court denied the motion.

On appeal, the landowner argues that the trial court erred in denying his motion in limine to exclude Cowall's expert testimony related to the second appraisal because it did not rise to the threshold level of reliability required by New Hampshire Rule of Evidence 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See State v. Pelletier, 149 N.H. 243, 252 (2003).

Expert testimony is admissible if "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue," N.H. R. Ev. 702, so long as the testimony "rise[s] to a threshold level of reliability," State v. Cressey, 137 N.H. 402, 405 (1993). We review a trial court's ...

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