Utah Court of Appeals Affirms Trial Court’s Ruling That Section 78B-6-510 Prohibits Cross-Examination Of Expert Appraiser Regarding Prior Appraisal Prepared To Obtain Immediate Occupancy.

On August 20, 2015, the Utah Court of Appeals in UDOT v. TBT Property Management, Inc., affirmed a district court’s finding that Section 78B-6-510 of the Utah Code (“Section 78B-6-510”) prohibits a private property owner from cross-examining an expert appraiser regarding a prior appraisal of the subject property that the expert prepared to support a motion for immediate occupancy.  Section 78B-6-510 states:  “If a condemning authority seeks immediate occupancy of the condemned property, the condemner must file with the clerk of the court a sum equal to the condemning authority’s appraised valuation of the property sought to be condemned.  That amount shall be for the purposes of the motion only and is not admissible in evidence on final hearing.” 

During trial, TBT Property Management, Inc. (“TBT”), the private property owner, attempted to cross-examine UDOT’s expert appraiser on a prior appraisal that he had performed of the subject property in connection with a motion for immediate occupancy.  UDOT’s counsel objected to the questioning, arguing that it was prohibited by Section 78B-6-510, and the district court sustained the objection.

On appeal, TBT challenged the district court’s ruling, arguing that the line of questioning “would have fallen outside of Section 78B–6–510’s bar because TBT did not seek to elicit the amount UDOT tendered to obtain occupancy of the property but rather sought only to question [UDOT’s expert appraiser] about how he arrived at the fair market value of the property in [a] 2008 appraisal.”  TBT further argued “that the question posed to [UDOT’s expert appraiser] was a legitimate attempt to impeach [UDOT’s expert appraiser] on his subsequent valuation and that it was therefore error for the trial court to restrict its cross-examination on this point.”  The Utah Court of Appeals rejected these arguments, stating:  “Even if TBT did not seek to elicit testimony prohibited by Section 78B–6–510 by asking [UDOT’s expert appraiser] to confirm the amount of the 2008 valuation, TBT’s question placed before the jury the precise information that Section 78B–6–510 bars from evidence. The trial court therefore did not abuse its discretion in striking the testimony and ruling that TBT could not inquire as to the specific valuation reached by [UDOT’s expert appraiser] in his 2008 appraisal.”

It is currently unclear whether TBT will seek certiorari from the Utah Supreme Court to appeal the Court of Appeal’s decision.  The full text of the Court’s opinion can be found here:    https://www.utcourts.gov/opinions/appopin/UDOT%20v.%20TBT%20Property%20%20Management,%20Inc.20150820.pdf