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Houston Holdings, LLC v. City of Portsmouth

Supreme Court of New Hampshire

October 9, 2013

Houston Holdings, LLC
v.
City of Portsmouth

Submitted September 19, 2013.

Rockingham.

Flynn & McGee, P.A., of Portsmouth ( John P. McGee, Jr. on the brief), for the plaintiff.

[165 N.H. 341] Suzanne M. Woodland, assistant city attorney, by brief for the defendant.

HICKS, J. DALIANIS, C.J., and CONBOY and BASSETT, JJ., concurred.

OPINION

Page 523

Hicks, J.

The defendant, City of Portsmouth (City), appeals a jury verdict awarding $128,111 as just compensation for the defendant's taking by eminent domain of easement rights in property of the plaintiff, Houston Holdings, LLC (Houston). The defendant challenges the Superior Court's ( Wageling, J.) ruling on a motion in limine and the Superior Court's ( Delker, J.) denial of a motion to set aside the verdict. We affirm.

The record supports the following facts. On June 24, 2009, the City filed a declaration of taking with the New Hampshire Board of Tax and Land Appeals (BTLA) for the acquisition of an approximately 1,922 square-foot permanent easement and an approximately 1,244 square-foot temporary

Page 524

easement over property owned by Houston in Portsmouth. The property was taken as part of the Bartlett-Islington Sewer Separation Project.

In October 2010, the BTLA held a two-day " just compensation" hearing, see RSA 498-A:25 (2010), at which it heard testimony and received documentary evidence including appraisals submitted by the parties. The City's appraiser, Dale Gerry, of Shurtleff Appraisal Associates, Inc., estimated the damages from the taking to be $18,500. Houston, on the other hand, introduced an appraisal from The Stanhope Group LLC that estimated total damages to be $125,100.

The BTLA issued a report finding total just compensation for both the permanent and temporary easements to be $27,000. See RSA 498-A:26 (2010). Houston appealed to the superior court, and a jury trial was held in June 2012. See RSA 498-A:27 (2010). Prior to trial, the City filed a motion in limine seeking to admit the BTLA report. The trial court denied the motion. At the end of trial, the jury returned a $128,111 verdict in Houston's favor. The City moved to set aside the verdict, arguing that the court's " decision to exclude the BTLA's decision was in error, the result of which can be seen by the jury's excessive verdict." The court denied the motion, and the City now appeals. See RSA 498-A:28 (2010).

The City argues that the BTLA report should have been admitted into evidence " [a]s a matter of law," or, alternatively, that exclusion of the report constitutes an unsustainable exercise of the trial court's discretion. " We review the trial court's rulings on admissibility of evidence for an unsustainable exercise of discretion, reversing only if the rulings are clearly untenable or unreasonable to the prejudice of the ...


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