Wheelabrator Bridgeport, L.P. v. City of Bridgeport (2012)

MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO STRIKE

In this property tax appeal, the defendant, city of Bridgeport (city), moves to strike the testimony of two witnesses presented by the plaintiffs, Wheelabrator Bridgeport, L.P. et al., during the course of the trial.   The witnesses, Alexander Hazen (Hazen) and Joseph Kettell (Kettell), were offered as real estate expert appraisers to testify as to the value of the plaintiffs' real estate and personal property.

The city moves to strike Hazen and Kettell's testimony, as well as their appraisal report for the International Appraisal Company, because they were not licensed appraisers by the Connecticut Real Estate Appraisal Commission during the trial.¹  General Statutes § 20–501(a) requires that “[n]o person shall act as real estate appraiser or provisional appraiser or engage in the real estate appraisal business without the appropriate certification, license, limited license or provisional license issued by the commission.”

The city argues that testifying in court as an appraiser is the equivalent of engaging in the practice of an appraiser in the real estate appraisal business;  therefore, an unlicensed appraiser cannot give expert testimony as an appraiser in Connecticut courts.

The plaintiffs, in opposing the city's motion to strike, cite Connecticut cases finding that an appraiser not licensed in Connecticut is qualified as an expert witness based on the witness' skill, knowledge and experience.

The city, in support of its argument, relies on General Statutes § 20–500(17) that defines a “[r]eal estate appraiser” or “appraiser” to mean “a person engaged in the business of estimating the value of real estate for a fee or other valuable consideration.”   The city also relies on § 20–500(12) that defines “[e]ngaging in the real estate appraisal business” to mean “the act or process of estimating the value of real estate for a fee or other valuable consideration.”   The city further notes that General Statutes § 20–523(a) and (b) provide for criminal penalties when a person engages in the real estate appraisal business in Connecticut without obtaining a license.

The issue in this motion to strike is whether an expert witness who qualifies as a real estate appraiser for the purpose of testifying in court as to the value of real estate, for a fee, can do so without first obtaining a license to engage in an appraisal business.

A number of cases have considered this issue and have concluded that so long as an appraiser qualifies as an expert witness, no other qualification is needed.

For example, in Hutchinson v. Andover, 49 Conn.App. 781, 715 A.2d 831 (1998), the court allowed a witness who was a real estate developer and broker, not a licensed real estate appraiser, to testify as to value of real estate.   As the Hutchinson court noted,”[§ ]20–501 is a licensing statute and does not preclude a witness from testifying as to his opinion of the diminution in the value of the plaintiffs' property, where the trial court found that the witness' education, training and experience qualified him to testify as an expert and the defendant points to no evidence that showed that [the witness] was engaged in the business of real estate appraising as defined in § 20–500(11).”  (Emphasis in original.)  Id., 789.   The Hutchinson case points out that the issue is whether the witness qualifies as an expert in his or her field, not whether the witness is engaged in the real estate business when testifying as a real estate appraiser in court.

Of particular note is South Central Conn. Regional Water Authority v. Bethany, Superior Court, judicial district of New Haven (November 25, 1991, Mignone, J. T.R.) [5 Conn. L. Rptr. 296], in which there was a challenge to Michael J. Remsha's testifying as an expert witness.   Remsha was employed by American Appraisal Associates, a real estate appraisal firm with its headquarters in Milwaukee, Wisconsin.   He was not licensed as an engineer or real estate appraiser in Connecticut or Wisconsin.   The South Central court found as follows:

(1) The thorough examination of the plaintiff's witness, Remsha, both on direct and cross-examination, shows that he is qualified as an engineer and is competent to appraise reservoirs and dams by reason of his knowledge, training and experience.

(2) Remsha's lack of licensure in Connecticut, and in Wisconsin, does not detract from the fact that he is a competent engineer with the desired qualifications of education, training and experience, to render his opinion as to the valuation of the subject dam and reservoir.

The South Central court also noted that other jurisdictions have held that an expert witness need not be licensed to testify in court.²

Noting that the Hutchinson case was decided approximately 14 years ago, there is no indication from the legislature that it would prohibit a witness from testifying in court as an expert witness if he or she is not licensed in Connecticut in his or her relevant field of expertise.

Accordingly, the city's motion to strike is denied.

Arnold W. Aronson

Judge Trial Referee

FOOTNOTES

FN1. General Statutes § 20–500(8) defines “Commission” to mean the “Connecticut Real Estate Appraisal Commission[.]”  General Statutes § 20–503(b)(1) provides that “[t]he commission shall authorize the Department of Consumer Protection to issue certification, licenses, limited licenses and provisional licenses to real estate appraisers.”.  FN1. General Statutes § 20–500(8) defines “Commission” to mean the “Connecticut Real Estate Appraisal Commission[.]”  General Statutes § 20–503(b)(1) provides that “[t]he commission shall authorize the Department of Consumer Protection to issue certification, licenses, limited licenses and provisional licenses to real estate appraisers.”

FN2. The South Central court listed sixteen decisions from states other than Connecticut, spanning Alabama to Washington.Another case of particular note, Lance v. Luzerne County Mfrs. Ass'n, 77 A.2d 386, 388 (Pa.1951), allowed an engineer, not licensed in Pennsylvania, to testify as an expert witness.   The Lance court found that “an expert is one who qualifies as such by reason of special knowledge and experience, and it is quite obvious that an individual may possess knowledge and experience of a special nature whether or not he is authorized to practice in his special field by virtue of any restriction or licensing requirement imposed by law.   The inquiry by the trial judge ․ as to qualifications ․ should be whether or not the witness possesses the special knowledge and experience.   As a result of this inquiry, usually conducted as examination and cross-examination by the respective counsel, ․ the trial judge may reach the conclusion that the witness does not possess the requisite qualifications entitling him to be classed as an expert, but the test must be as to the alleged expert's possession of knowledge and experience and not of a piece of paper which authorizes him to practice a profession.”  (Internal quotation marks omitted.).  FN2. The South Central court listed sixteen decisions from states other than Connecticut, spanning Alabama to Washington.Another case of particular note, Lance v. Luzerne County Mfrs. Ass'n, 77 A.2d 386, 388 (Pa.1951), allowed an engineer, not licensed in Pennsylvania, to testify as an expert witness.   The Lance court found that “an expert is one who qualifies as such by reason of special knowledge and experience, and it is quite obvious that an individual may possess knowledge and experience of a special nature whether or not he is authorized to practice in his special field by virtue of any restriction or licensing requirement imposed by law.   The inquiry by the trial judge ․ as to qualifications ․ should be whether or not the witness possesses the special knowledge and experience.   As a result of this inquiry, usually conducted as examination and cross-examination by the respective counsel, ․ the trial judge may reach the conclusion that the witness does not possess the requisite qualifications entitling him to be classed as an expert, but the test must be as to the alleged expert's possession of knowledge and experience and not of a piece of paper which authorizes him to practice a profession.”  (Internal quotation marks omitted.)

Aronson, Arnold W., J.T.R.