Opinion

Five Liver Company v. City of Portland

Court
Superior Court of Maine
Filed
Sep 5, 2006
Status
Unpublished
On the bench
Thomas E. Delahanty II
Cited by
0 cases

The opinion

.- - .

STATE OF MAINE S U P E ~ O RCOURT

CUMBERLAND, SS. ' . CIVIL-ACTION

DOCKET NO. CV-02-410

FIVE LIVER COMPANY,

Plaintiff

v. DECISION AND JUDGMENT

CITY OF PORTLAND,

Defendant

I. NATURE OF CASE

The plaintiff is a Maine corporation that owns real estate on Marginal Way in the

Bayside area of the City of Portland, which has been targeted by the City for

redevelopment. Pursuant to its sovereign authority and Maine statutes regarding

eminent domain,' the City of Portland acquired a portion of plaintiff's property for the

purpose of establishng a public way in the Bayside area. Five Liver Company (FLC)

asserts that it has not received fair value for the taken property and initiated this action.

The propriety of the talung is not at issue, only the valuation and amount of

compensation.

11. BACKGROUND

The taking of the property was on July 3, 2002, and consists of an area of

approximately 50 feet by 180 feet, which would extend the course of Chestnut Street, an

existing way, to intersect with Marginal Way, the major thoroughfare in the Bayside

' Title 23 M.R.S.A. § 3021, et seq. deals with the requirement that any land to be taken for highway

purposes, including a town way, must be based on a determination "that [a] public exigency requires the

immediate taking of [the property]" and that the owner be compensated "at what the municipal officers

deem reasonable valuation." 23 M.R.S.A.§ 3023.

To the extent that the court sets out facts, they constitute the findings of the court unless stated

otherwise.

area. The City determined the "reasonable valuation," 23 M.R.S.A. § 3029, of the

property to be $215,000.

FLC contends that the property is of significantly greater value because the City

did not consider the income potential of the property. FLC bases its greater claim on its

earlier application to the Portland Planning Department and the grant of approval for a

single-story 18,000 sq. ft. building it intended to lease out as retail property. The taking

of the land made it impossible to construct the building as planned.

Prior to its application to the Planning Board, FLC was aware that the City was

actively promoting redevelopment of the area, including the probability that Chestnut

Street would be extended; however, specifics were not available. The City was

attempting to obtain other property, including an unused railroad corridor running

through Bayside.

After FLC received its initial go-ahead from the City, it voluntarily agreed to

several stays and delays to permit the City more time to work out other acquisition

problems.

The City encountered a number of problems with its plans and FLC was,

justifiably, getting impatient. In fact, Peter Quesada, a principal in Five Liver, believed

that the City was deliberately stalling to condemn the land and to prevent him from

building.

On June 2, 2002, FLC sought and received reinstatement of its buildng permit

and commenced site work and construction activity. The City then proceeded with the

final steps of the talung including the filing of the requisite certificate in the Registry of

Deeds and by tendering payment of $215,000 as just compensation.

The initial taking divided the property and made construction of the original

plan impossible; however, after the talung, the parties continued to negotiate which

resulted in an "Exchange and Partial Settlement Agreement" (pl. ex. 20) with the result

that the City actually received a wider strip, 58 feet, for the Chestnut Street extension

and FLC received additional land from the City acquired from an abutter of which Peter

Quesada was also a principal.

The after-talung exchange increased the total size of the two bi-furcated parcels

and allows for more parlung, subject to an easement to the abutter, or the east, to serve

the principal lot.

111. DISCUSSION OF VALUE AND FINDINGS

The issue for determination is the amount of just compensation, if any, over and

above the $215,000 paid by the City to FLC after consideration of the effect of the

Exchange and Partial Settlement Agreement.

The court received evidence from three persons regarding the appropriate

valuation.

Over objection by the City's attorney, the court heard an opinion of value from

Peter Quesada that FLC is entitled to an additional sum in excess of $1,040,000.

Quesada is not licensed as an appraiser or realtor in Maine and bases h s opinion

on his educational background (B.A. Harvard, M.B.A. Yale) and years of substantial

experience and involvement with commercial real estate transactions and development.

It is well settled in Maine that the owner of property is qualified to offer opinion

evidence as to the value of his property. In h s instance, however, the property is not

personally owned, but Quesada is a principal in FLC and is as familiar with the

property as if he owned it personally. In addition, it appears from the evidence that he

possesses the general qualifications to obtain an appraisal license should he choose to

do so. Notwithstanding his background, however, the court rejects his opinion of

value.

At the time of the formal talung, the City maintains that the commercial real

estate market had been negatively effected by the terrorist attacks of September 11,

2001, but due to the passage of time to the taking in July 2002, the court does not believe

h s is a factor in the valuation of the property. Another event, however, is of more

significance; that is, the proposed changes by the Maine Department of transportation

(MDOT) whch had proposed major traffic pattern changes on Marginal Way and other

area streets. Quasada expressed concern of the substantial impact on area real estate

and proposed retail development, which was a key component of h s plans. Although

MDOT later abandoned their proposal, it was still a viable idea, albeit with substantial

opposition.

FLC's original parcel included slightly over 300 feet of frontage on Marginal

Way. The land, whch the city acquired through the taking, consists of a strip,

approximately 50 feet wide, running from the front of FLC's property on Marginal Way

to the rear line of the parcel. The talung split the parcel into two pieces, both of which

abut Chestnut Street and extended and Marginal Way. The eastern most parcel that

was cut off is approximately 70 feet wide and a little over 300 feet in depth. The

western parcel where FLC wanted to erect its building3borders Margnal Way on the

North and Chestnut Street on the East and is approximately 186 feet wide and 177 feet

deep.

The City's damage award was based on an appraisal by Dirk Thomas, a licensed

State of Maine appraiser. Thomas' original appraisal was completed in January 2002. It

was later updated to the date of the taking, July 3, 2002. In the update, he determined

FLC has now constructed a building on this site that is smaller than their original plan.

4

that no relevant changes had developed in the interim. He made no changes from h s

original estimate of $215,000, whch was paid to FLC by the City.

In connection with its review and challenge of the talung award, FLC retained

the services of an experienced licensed commercial appraiser, Norman Gosline. Gosline

provided FLC with an appraisal report and initially offered his opinion that the value of

the taken parcel was $570,000.

The project to extent Chestnut Street to Marginal Way required the City to seek

to acquire another strip of land to the rear of FLC's property owned by 161 Marginal

Way, LLC.4 By acquiring this parcel, the City would create parking problems at 161

Marginal Way and the mortgage holder for the property objected. The City determined

that it could remedy the problem by using part of the land area of the former railroad

right-of-way that it was attempting to obtain from NIDOT and Guilford (railroad)

Transportation.

After the taking, the city began negotiations with FLC to acquire additional land

to alleviate the problems. After a lengthy process the parties reached an agreement in

March 2005 entitled "Partial Settlement and Exchange Agreement". ("Agreement")

Under terms of the Agreement there would be a three-way exchange of land between

FLC, the City and 161 Marginal Way, LLC. The three-way exchange would allow the

City to acquire the strip of land over the 161 Marginal Way lot as necessary for he

extension of Chestnut Street, allow 161 Marginal Way to continue to provide parlung

for its tenants and would convey an additional land area (approximately 18,000 square

feet) to FLC that would increase the total size of FLC's property.

The Agreement also directed that the additional land area to be included as part

of the post-talung land area for analysis and assessment of damages in h s action. For

Peter Quesada and his brother Ricardo are the principals in this entity.

5

the porpose of calculating damages here, the Agreement directs that FLC's more

easterly post-talung remainder lot should therefore be reviewed as being comprised of

slightly more than 50,000 square feet as opposed to the original 32,000 square feet.

Tkus exchange resulted in new and updated appraisals by Thomas and Gosline.

The burden of proof, that the City's compensation is inadequate, rests solely

upon the property owner, FLC. To determine the adequacy of compensation, the court

necessarily relies upon experts. FLC rests its claim on Peter Quesada's opinion that is

rejected by the court. The court finds his testimony to be too self-serving and without a

firm basis in the law. FLC did not call any other expert to testify. FLC has failed to

satisfy its burden, but the court must still determine an appropriate value.

Although Gosline was retained by FLC and performed his analysis at FLC's

request, he was called to testify by the City. At the conclusion of the case, the court

considers the evidence as a whole.

Gosline and Thomas followed the normal appraisal procedures to determine

damages by contrasting the fair market value of the property immediately before and

after the City's taking. Both appraisers reviewed market evidence and conditions

immediately before and after the time of the tahng and considered the three accepted

appraisal methods: Comparative sales / market analysis; income or capitalization; and,

cost analysis.

Both Gosline and Thomas agree that FLC significantly benefited from the added land

area under the terms of the Agreement. Gosline's revised estimate, however, includes

in h s pre-taking valuation an additional $400,000 that represents his opinion of the

value of the permits, design and partial construction completed on the site before the

building could be constructed.

The City argues against h s inclusion because a good portion of t h ~ swork was

done after the formal notice of the city's intent to take the property and after the City

had re-issued the building permits in June 2002. As noted above, notwithstanding the

City's action in March through June 2002, Quesada was understandably anxious to

proceed with some development.

It is somewhat disingenuous for the City to argue against the inclusion of these

costs in the face of the delay that caused Quesada to act and that the City actually

reissued the building permit to allow FLC to go forward. It is apparent that one part of

the City's development team didn't know what another part of city government was

doing.

Although Gosline was initially retained by the plaintiff, but presented by the

defendant, his testimony is a matter of record. At the close of evidence, the court

considers all of the evidence in the record. In this light, the court has rejected the

testimony of Peter Quesada as to h s opinion of valuation and finds that the "premium"

(as it is referred to by the City) of $400,000 as the value of the permits is appropriate.

Absent this factor, the difference between the opinions of Thomas and Gosline are

slight, although their methodology my differ somewhat.

IV. DECISION AND JUDGMENT

The court finds that the fair market value for the land ($940,000) and the included

permits ($400,000) before the talung is $1,340,000 and that the post-talung value is

$950,000 for a net value for the taking of $390,000.

After deduction of the sum previously paid by the City ($215,000), the plaintiff is

entitled to judgment in the amount of $175,000.

The clerk will make the following entry as the Decision and Judgment of the

court:

- Judgment for plaintiff Five Live company in the amount of $175,000

against the defendant City of Portland.

- The plaintiff is awarded interest and costs as allowed by rule and

statute.

SO ORDERED.

Dated: September 5,2006

Thomas E. De

Justice, Superior ~o;rt

FIVE LIVER COMPANY - PLAINTIFF SUPERIOR COURT

CUMBERLAND, ss.

Attorney for: FIVE LIVER COMPANY Docket No PORSC-CV-2002-00410

JERROL CROUTER - RETAINED 08/21/2002

DRUMMOND WOODSUM & MACMAHON

245 COMMERCIAL ST. DOCKET RECORD

PO BOX 9781

PORTLAND ME 04104-5081

VS

CITY OF PORTLAND - DEFENDANT

Attorney for: CITY OF PORTLAND

REBECCA FARNLTM - WITHDRAWN 10/16/2003

THOMPSON & BOWIE

THREE CANAL PLAZA

PO BOX 4630

PORTLAND ME 04112-4630

Attorney for: CITY OF PORTLAND

GARY C WOOD - WITHDRAWN 01/23/2004

OFFICE OF CORPORATION COUNSEL

389 CONGRESS STREET

PORTLAND ME 04101

Attorney for: CITY OF PORTLAND

ROBERT CRAWFORD - RETAINED 01/16/2004

BERNSTEIN SHUR SAWYER & NELSON

100 MIDDLE ST

PO BOX 9729

PORTLAND ME 04104-5029

Filing Document: COMPLAINT Minor Case Type: OTHER STATUTORY ACTIONS

Filing Date: 08/21/2002

Docket Events:

08/22/2002 FILING DOCUMENT - COMPLAINT FILED ON 08/21/2002

WITH SUMMARY SHEET

08/22/2002 Party(s): FIVE LIVER COMPANY

ATTORNEY - RETAINED ENTERED ON 08/21/2002

Plaintiff's Attorney: JERROL CROUTER

08/30/2002 Party(s) : FIVE LIVER COMPANY

SUMMONS/SERVICE - CIVIL SUMMONS FILED ON 08/30/2002

08/30/2002 Party(s): FIVE LIVER COMPANY

SUMMONS/SERVICE - CIVIL SUMMONS SERVED ON 08/23/2002

UPON CITY OF PORTLAND TO ANITA ROBINSON

09/17/2002 Party (s): CITY OF PORTLAND

RESPONSIVE PLEADING - ANSWER FILED ON 09/16/2002

DEFENDANT, CITY OF PORTLAND

Page 1 of 8 Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

09/17/2002 Party(s) : CITY OF PORTLAND

ATTORNEY - RETAINED ENTERED ON 09/16/2002

Defendant's Attorney: REBECCA FARNUM

09/30/2002 ORDER - SCHEDULING ORDER ENTERED ON 09/30/2002

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

DISCOVERY DEADLINE IS MAY 30, 2002. PARTIES TO SELECT ADR PROCESS AND NEUTRAL. ON 09-30-02

COPIES MAILED TO JERROL CROUTER, AND REBECCA FARNUM, ESQS.

12/02/2002 Party (s): FIVE LIVER COMPANY

ADR - NOTICE OF ADR PROCESS/NEUTRAL FILED ON 12/02/2002

MEDIATION WITH PATRICK COUGHLAND, ON 1-15-03.

12/13/2002 ASSIGNMENT - SINGLE JUDGE/JUSTICE ASSIGNED TO JUSTICE ON 09/30/2002

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

12/16/2002 Party(s): FIVE LIVER COMPANY

MOTION - MOTION TO AMEND PLEADING FILED ON 12/13/2002

PLAINTIFF, FIVE LIVER COMPANY ASSENTED TO MOTION TO AMEND SCHEDULING ORDER

12/17/2002 Party(s): FIVE LIVER COMPANY

MOTION - MOTION TO AMEND PLEADING GRANTED ON 12/17/2002

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

COPIES TO PARTIES/CoUNSEL

12/17/2002 ORDER - COURT ORDER ENTERED ON 12/17/2002

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

PLAINTIFF, FIVE LIVER COMPANY'S ASSENTED TO MOTION TO AMEND THE SCHEDULING ORDER IN THIS

CASE BY EXTENDING ALL DEADLINES BY 45 DAYS IS GRATNED BY AGREEMTN OF THE PARTIES. THE

SCHEDULING ORDER IS HEREBY MODIFIED TO PROVIDE FORTHE FOLLOWING DEADLINES: JOINDER OF

PARTIES/AMENDMENT OF PLEADINGS, MAR. 17, 2003, PLAINTIFF'S EXPERT DESIGNATION, FEBRUARY

14, 2003. DEFENDANT'S EXPERT DESIGNATION, APRIL 14, 2003. DEADLINE FOR MEDIATION, MAR. 14,

2003. JURY FEE DEADLINE, APR. 14, 2003. DISCOVERY DEADLINE JUNE 16, 2003. ON 12-17-02

COPIES REBECCA FARNUM, ESQ. AND JERROL CROUTER, ESQ.

02/07/2003 Party ( 6 ) : CITY OF PORTLAND

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 02/07/2003

DEFENDANT, CITY OF PORTLAND REQUESTS FOR PRODUCTION OF DOCUMENTS PROPOUNDED TO PLAINTIFF

INTERROGATORIES PROPOUNDED TO PLAINTIFF SERVED ON JERROL A. CROUTER, ESQ. ON FEBRUARY 6,

2003.

04/14/2003 Party(s) : CITY OF PORTLAND

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 04/14/2003

PLAINTIFF'S ANSWERS AND OBJECTIONS TO INTERROGATORIES PROPOUNDED BY DEFENDANT SERVED ON

REBECCA H. FARNUM ON 4-11-03.

04/14/2003 Party(s): CITY OF PORTLAND

MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 04/10/2003

UNOPPOSED MOTION FOR EXTENSION OF TIME TO DESIGNATE EXPERTS.

04/14/2003 Party(s): FIVE LIVER COMPANY

JURY FILING - DEMAND FOR JURY TRIAL FILED ON 04/14/2003

BY LETTER FROM PLANTIFF'S ATTORNEY. $300.00 FEE PAID.

Page 2 of B Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

04/15/2003 Party (s): CITY OF PORTLAND

MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 04/15/2003

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

IT IS HEREBY ORDERED THAT THE TIME WITHIN WHICH DEFENDANT DESIGNATE EXPERTS BE EXTENDED

FROM APRIL 14, 2003 TO AND INCLUDING MAY 1, 2003. ON 04-15-04 COPIES MAILED TO JERROL

CROUTER AND REBECCA FARNUM, ESQS.

05/07/2003 Party(s): CITY OF PORTLAND

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 05/07/2003

DEFENDANT CITY OF PORTLAND EXPERT WITNESS DESIGNATION SERVED ON JERROL CROUTER ESQ. 05-01-

03.

05/13/2003 ORDER - REPORT OF ADR CONF/ORDER UNRESOLVED ON 05/07/2003

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

CASE IS UNRESOLVED. ORDER ENTERED. ON 05-13-03 COPIES MAILED TO JERROL CROUTER, ESQ. AND

REBECCA FARNUN, ESQ.

07/01/2003 Party (s): FIVE LIVER COMPANY

MOTION - MOTION STAY OF PROCEEDINGS FILED ON 06/30/2003

PLAINTIFF, FIVE LIVER COMPANY MOTION FOR STAY OF PROCEEDINGS.REQUEST FOR HEQRING AND

PROPOSED ORDER.

08/08/2003 Party(s): FIVE LIVER COMPANY

MOTION - MOTION STAY OF PROCEEDINGS GRANTED ON 08/07/2003

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

CONDUCTED A TELEPHONE CONFERENCE WITH COUNSEL ON 8-7-03 AND IT IS HEREBY ORDERED THAT AS A

RESULT OF THE DEFENDANT'S CONSIDERATION OF THE TAKING BY EMINENT DOMAIN A STRIP OF LAND ON

A PARCEL ADJACENT TO PLAINTIFF'S PROPERTY, FOR AN EXTENSION OF CHESTNUT IN PORTLAND, THIS

PROCEEDING IS STAYED THROUGH SEPTEMBER 30, 2003. JOINT MOTION TO STAY IS GRANTED UNTIL

JUNE 21, 2004. ON 03-31-04 COPIES MAILED TO ROBERT CRAWFORD, ESQ. AND JERROL CROUTER, ESQ.

10/02/2003 ORDER - COURT ORDER ENTERED ON 10/02/2003

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

IT IS HEREBY ORDERED THAT THE STAY IN THIS MATTER BE EXTENDED THROUGH JANUARY 5, 2004. ON

10-03-03 COPIES MAILED TO REBECCA FARNUM, ESQ. AND JERROL CROUTER, ESQ.

10/10/2003 Party (s): CITY OF PORTLAND

OTHER FILING - ENTRY OF APPEARANCE FILED ON 10/10/2003

OF GARY C. WOOD, ESQ. FOR DEFENDANT. DB

10/10/2003 Party(s): CITY OF PORTLAND

ATTORNEY - RETAINED ENTERED ON 10/10/2003

Defendant's Attorney: GARY C WOOD

10/16/2003 Party (6): CITY OF PORTLAND

ATTORNEY - WITHDRAWN ORDERED ON 10/16/2003

Defendant's Attorney: REBECCA FARNUM

10/16/2003 Party (s): CITY OF PORTLAND

OTHER FILING - NOTICE WITHDRAWAL OF COUNSEL FILED ON 10/16/2003

OF REBECCA H. FARNUM ESQ., AS COUNSEL FOR THE DEFENDANT, CITY OF PORTLAND.(LLS)

Page 3 of 8 Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

01/15/2004 Party (s): CITY OF PORTLAND

LETTER - FROM PARTY FILED ON 01/15/2004

FROM ROBERT CRAWFORD, ESQ. REQUESTING A TELEPHONE CONFERENCE WITH JUSTICE HUMPHREY. (AD).

01/15/2004 Party(s): FIVE LIVER COMPANY

OTHER FILING - OTHER DOCUMENT FILED ON 01/15/2004

REPLACEMENT SIGNATURE PAGE TO COMPLAINT (D'C)

01/16/2004 Party (s): CITY OF PORTLAND

OTHER FILING - ENTRY OF APPEARANCE FILED ON 01/16/2004

OF ROBERT J. CRAWFORD ESQ O/B/O CITY OF PORTLAND (GA)

01/16/2004 Party(s): CITY OF PORTLAND

ATTORNEY - RETAINED ENTERED ON 01/16/2004

Defendant's Attorney: ROBERT CRAWFORD

01/23/2004 Party (s): CITY OF PORTLAND

OTHER FILING - NOTICE WITHDRAWAL OF COUNSEL FILED ON 01/23/2004

OF GARY WOOD, ESQ. ON BEHALF OF DEFENDANT (DC)

01/23/2004 Party (s): CITY OF PORTLAND

ATTORNEY - WITHDRAWN ORDERED ON 01/23/2004

Defendant's Attorney: GARY C WOOD

01/23/2004 HEARING - OTHER HEARING HELD ON 01/21/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

THE COURT HELD A CONFERENCE CALL WITH COUNSEL FOR ALL PARTIES ON JANUARY 15, 2004. COUNSEL

PRESENTED THE COURT WITH A JOINT ORAL MOTION TO CONTINUE AND AMEND THE SCHEDULING ORDER.

(SEE COURT ORDER. ) (AD)

01/23/2004 ORDER - COURT ORDER ENTERED ON 01/21/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

ORDER CONTINUING TRIAL AND AMENDING SCHEDULING ORDER. (AD) IT IS HEREBY ORDERED THAT: 1.

THE JOINT MOTION TO CONTINUE IS GRANTED. THIS CASE IS CONTINUED FROM THE FEBRUARY-MARCH,

2004 CIVIL TRIAL LIST. THE CASE WILL BE SCHEDULED FOR TRIAL ON JUSTICE HUMPHREY'S MAY-

JUNE, 2004 CIVIL TRIAL LIST. 2. THE JOINT MOTION TO AMEND SCHEDULING ORDER IS GRANTED. THE

DISCOVERY DEADLINE IS EXTENDED UNTIL MARCH 15, 2004. THE DEADLINE FOR FILING DISPOSITIVE

MOTIONS IS MARCH 25, 2004. 3. BY AGREEMENT OF THE PARTIES TRIAL IN THIS CSE WILL BE JURY-

WAIVED, AND THE CLERK WILL REMOVE THIS MATTER FROM THE CIVIL JURY LIST. (AD). ON 01-23-04

COPIES MAILED TO JERROL CROUTER AND ROBERT CRAWFORD, ESQS.

01/27/2004 Party (s): FIVE LIVER COMPANY

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 01/27/2004

PLAINTIFF'S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS SERVED ON ROBERT J. CRAWFORD 01-26-

04. (LLS)

02/25/2004 Party (s): CITY OF PORTLAND

MOTION - MOTION TO AMEND PLEADING FILED ON 02/23/2004

DEFENDANT, CITY OF PORTLAND'S CONSENTED TO MOTION TO AMEND THE ANSWER TO ADD AFFIRMATIVE

DEFENSES, DEFENDANT CITY OF PORTLAND'S ADDITIONAL AFFIRMATIVE DEFENSES, PROPOSED ORDER.

(AD).

02/25/2004 Party(s): CITY OF PORTLAND

Page 4 of 8 Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

MOTION - MOTION TO AMEND PLEADING GRANTED ON 02/25/2003

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

DEFENDANT, CITY OF PORTLAND'S CONSENTED TO MOTION TO AMEND THE ANSWER TO ADD AFFIRMATIVE

DEFENSES IS HEREBY GRANTED. THE PLEADING ATTACHED TO DEFENDANT CITY OF PORTLAND'S MOTION

IS ACCEPTED FOR FILING. ON 02-25-04 COPIES MAILED TO JERROL CROUTER, ESQ AND ROBERT

CRAWFORD, ESQ .

02/26/2004 Party(s): CITY OF PORTLAND

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 02/26/2004

DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST REQUEST FOR PRODUCTION FO DOCUMENTS SERVED ON

JERROL A . CROUTER, ESQ. 02-25-04. (LLS)

03/09/2004 Party (s): FIVE LIVER COMPANY

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 03/09/2004

NOTICE OF DEPOSITION OF LEE D. URBAN SERVED ON ROBERT J. CRAWFORD ON 3-4-04 (DC)

03/10/2004 Party(s) : CITY OF PORTLAND

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 03/09/2004

DEPOSITION NOTICES FOR FIVE LIVER COMPANY, NORMAN GOSLINE AND PETER QUESADA SERVED ON

JERROL A. CROUTER, ESQ. ON 3-15-04 (DC)

03/11/2004 ORDER - FINAL PRETRIAL ORDER ENTERED ON 03/11/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

RULE 16(B) PRETRIAL ORDER ENTERED. AD. ON 03-11-04 COPIES MAILED TO MICHAEL BOSSE, ESQ.,

ROBERT CRAWFORD, ESQ. AND JERROL CROUTER, ESQ.

03/17/2004 Party (s): CITY OF PORTLAND

MOTION - MOTION TO CONTINUE FILED ON 03/17/2004

DEFENDANT, CITY OF PORTLAND CONSENTED TO MOTION TO POSTPONE PRETRIAL MANAGEMENT

CONFERENCE. AD

03/17/2004 Party (s): CITY OF PORTLAND

MOTION - MOTION TO CONTINUE GRANTED ON 03/17/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

DEFENDANT, CITY OF PORTLAND'S CONSENTED TO MOTION TO POSTPONE THE TRIAL MANAGEMENT

CONFERENCE SCHEDULED FOR MARCH 24, 2004, IS HEREBY GRANTED. ON 03-17-04 COPIES MAILED TO

JERROL CROUTER, ESQ AND ROBERT CRAWFORD, ESQ. AD

03/31/2004 ORDER - SCHEDULING ORDER AMENDED ON 03/31/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

THE DISCOVERY DEADLINE IS EXTENDED TO JULY 30, 2004 WITH CORRESPONDING DEADINES FOR THE

CONFERENCE OF COUNSEL TO ESTIMATE TIME FOR TRIA, WITNESS AND EXHIBIT LISTS, MOTION

FILINGS. ON 03-31-04 COPIES MAILED TO ROBERT CRAWFORD, JERROL CROUTER, ESQS.

03/31/2004 ORDER - COURT ORDER ENTERED ON 03/31/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

ORDER CONTINUING TRIAL, STAYING PROCEEDING AND AMENDING SCHEDULING ORDER: IT IS HEREBY

ORDERED: 1. THE JOINT MOTION TO CONINTUE IS GRANTED. THIS CASE IS CONTINUED FROM THE MAY-

JUNE, 2004 CIVIL TRIAL LIST. THE CASE WILL BE SCHEDULED FOR TRIAL ON THIS COURT'S

SEPTEMBER-OCTOBER, 2004 CIVIL TRIAL LIST. 2. THE JOINT MOTION FOR STAY IS GRANTED, AND THE

CASE IS STAYED UNTIL JUNE 21, 2004 TO ENABLE TO PARTIES TO OBTAIN UPDATED APPRAISALS. 3.

THE JOINT MOTION TO AMEND THE STANDING SCHEDULING ORDER OF SEPTEMBER 30, 2002 IS GRANTED.

THE DISCOVERY DEADLINE IS EXTENDED TO JULY 30, 2004 WITH CORRESPONDING DEADLINES FOR THE

Page 5 of 8 Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

CONFERENCE OF COUNSEL TO ESTIMATE TIME FOR TRIAL, TO EXCHANGE WITNESS AND EXHIBIT LISTS

AND FOR MOTION FILINGS THAT FOLLOW THE CLOSE OF DISCOVERY TO ALSO BE EXTENDED ACCORDING TO

THE SAME TERMS AND PERIODS AS SET FORTH IN THE SEPTEMBER 30, 2003 SCHEDULING ORDER. ON 03-

31-04 COPIES MAILED TO JERROL CROUTER, ESQ. AND ROBERT CRAWFORD, ESQ.

08/12/2004 ORDER - FINAL PRETRIAL ORDER ENTERED ON 08/11/2004

G ARTHUR BRENNAN , JUSTICE

RULE 16(B) PRETRIAL ORDER ENTERED. ON 08-11-04 COPIES MAILED TO JERROL CROUTER AND ROBERT

CRAWFORD, ESQS .

08/16/2004 OTHER FILING - STATEMENT OF TIME FOR TRIAL FILED ON 08/16/2004

OF PLAINTIFF (DC)

08/19/2004 Party(s): FIVE LIVER COMPANY

MOTION - MOTION TO CONTINUE FILED ON 08/18/2004

ASSENTED TO MOTION TO CONTINUE CASE FROM CIVIL TRIAL LIST. AD

08/24/2004 Party (s): FIVE LIVER COMPANY

MOTION - MOTION TO CONTINUE GRANTED ON 08/20/2004

THOMAS E HUMPHREY , SUPERIOR COURT CHIEF JUSTICE

AFTER A CONFERENCE WITH COUNSEL, THE COURT IS SATISFIED THAT A FINAL CONTINUANCE OUGHT BE

GRANTED. ACCORDINGLY, THE ASSENTED TO MOTION TO CONTINUANCE IS GRANTED AND THE CASE IS

ASSIGNED TO THE NEXT CIVIL TRIAL LIST, WHICH IS ANTICIPATED TO BE JANUARY - FEBRUARY 2005

ON 08-24-04 COPIES MAILED TO JERROL CROUTER, ESQ. AND ROBERT CRAWFORD, ESQ. AD

10/01/2004 Party ( 6 ) : FIVE LIVER COMPANY

DISCOVERY FILING - NOTIFICATION DISCOVERY SERVICE FILED ON 10/01/2004

AMENDED DEPOSITION NOTICES FOR FIVE LIVER COMPANY AND PETER QUESADA SERVED ON JERROL A.

CROUTER ESQ. ON 9-30-04 (GA)

02/09/2005 Party(s): CITY OF PORTLAND

MOTION - OTHER MOTION FILED ON 02/08/2005

OF DEFENDANT, CITY OF PORTLAND MOTION TO ACCEPT TRIAL BRIEF WITH INCORPORATED MEMORANDUM

OF LAW; REQUEST FOR HEARING; PROPOSED ORDER. AD

02/09/2005 Party(s): CITY OF PORTLAND

OTHER FILING - TRIAL BRIEF FILED ON 02/08/2005

OF DEFENDANT, CITY OF PORTLAND'S TRIAL BRIEF. AD

02/09/2005 Party (s): FIVE LIVER COMPANY

OTHER FILING - TRIAL BRIEF FILED ON 02/08/2005

OF PLAINTIFF FIVE LIVER COMPANY'S TRIAL BRIEF. AD

02/09/2005 Party(s): CITY OF PORTLAND

OTHER FILING - WITNESS LIST FILED ON 02/08/2005

OF DEFENDANT'S LIST OF WITNESSES. AD

02/09/2005 Party(s): CITY OF PORTLAND

OTHER FILING - EXHIBIT LIST FILED ON 02/08/2005

OF DEFENDANT'S LIST OF EXHIBITS. AD

02/15/2005 Party(s): CITY OF PORTLAND

OTHER FILING - TRANSCRIPT ORDER FORM FILED ON 02/11/2005

Page 6 of 8 Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

ORIGINAL TRANSCRIPT ORDER SENT TO BANGOR ELECTRONIC RECORDING WITH COPY OF DOCKET SHEET

AND RECORDING LOG. COPY OF TRANSCRIPT ORDER FORM IN FILE. AD

02/18/2005 LETTER - FROM NON-PARTY FILED ON 02/18/2005

FROM GAYLE W. KENNEY TO MICHAEL BOSSE ESQ REGARDING TRANSCRIPT COSTS (GM)

02/22/2005 TRIAL - BENCH HELD ON 02/09/2005

THOMAS E DELAHANTY 11, JUSTICE

Defendant's Attorney: ROBERT CRAWFORD

Plaintiff's Attorney: JERROL CROUTER

NON-JURY TRIAL BEGINS; OPENING STATEMENTS BY BOTH COUNSEL; PLAINTIFF'S TESTIMONY BEGINS

TRIAL CONTINUED TO 2/9/05; DELAHANTY, J. PRESIDING; TAPE 2472 INDEX 10 - 2563; MICHAEL

BOSSE, ESQ. ALSO PRESENT FOR DEFENDANT.

02/22/2005 TRIAL - BENCH HELD ON 02/10/2005

THOMAS E DELAHANTY 11, JUSTICE

Defendant's Attorney: ROBERT CRAWFORD

Plaintiff's Attorney: JERROL CROUTER Reporter: PHILIP GALUCKI

DAY 2 OF NON-JURY TRIAL CONTINUES. PLAINTIFF'S TESTIMONY CONTINUES; PLAINTIFF RESTS;

DEFENDANT MOVES FOR JUDGMENT AS MATTER OF LAW; MOTION DENIED. DEFENDANT'S TESTIMONY

BEGINS; TRIAL CONTINUED TO 2/11/05; TAPE 2472 INDEX 2574- 4649; TAPE 2473 INDEX 1 - 1141;

MICHAEL BOSSE, ESQ. ALSO PRESENT FOR DEFENDANT. AD

02/22/2005 TRIAL - BENCH HELD ON 02/11/2005

THOMAS E DELAHANTY II, JUSTICE

Defendant's Attorney: ROBERT CRAWFORD

Plaintiff's Attorney: JERROL CROUTER Reporter: PHILIP GALUCKI

NON- JURY TRIAL CONTINUES; DEFENDANT'S TESTIMONY CONTINUES; DEFENDANT RESTSJERROL CROUTER,

ROBERT CRAWFORD AND MICHAEL BOSSE, ESQS. TO SUBMIT BRIEF FOR THE CLOSING ARGUMENTS; COURT

TAKES MATTER UNDER ADVISEMENT; MICHAEL BOSSE, ESQ. ALSO PRESENT FOR DEFENDANT. AD

PLAINTIFF AND DEFENDANT EXHIBITS FOR TRIAL HELD ON 2/9/05 THRU

2/11/05 ARE ENCLOSE IN FILE ON EXHIBIT SHEETS. AD

03/02/2005 OTHER FILING - TRANSCRIPT FILED ON 03/02/2005

THOMAS E DELAHANTY 11, JUSTICE

OF TRIAL DATED FEBRUARY 10-11, 2005 (TRIAL DATES - FEB 9, 10, 11) THIS TRIAL WAS TAPED BY

ELECTRONIC RECORDING ON FEB 9 AND PART OF FEE 10, 2005. BEFORE THE HONORABLE THOMAS E.

DELAHANTY II . AD

03/14/2005 Party(6): CITY OF PORTLAND

MOTION - MOTION FOR ENLARGEMENT OF TIME FILED ON 03/14/2005

CONSENTED-TO MOTION TO EXTEND TIME FOR FILING OF POST-TRIAL CLOSING BRIEF. AD

03/17/2005 Party(s): CITY OF PORTLAND

MOTION - OTHER MOTION MOOT ON 02/08/2005

OF DEFENDANT, CITY OF PORTLAND MOTION TO ACCEPT TRIAL BRIEF WITH INCORPORATED MEMORANDUM

OF LAW; REQUEST FOR HEARING; PROPOSED ORDER. AD BRIEF FILED ON 02-08-05.NO

NEED TO ACT ON THIS MOTION. AD

03/18/2005 OTHER FILING - TRANSCRIPT FILED ON 03/16/2005

THOMAS E DELAHANTY 11, JUSTICE

OFFICIAL TRANSCRIPT FROM ELECTRONIC RECORDING DIVISION; BEFORE THE

HONORABLE THOMAS E. DELAHANTY, 11, JUSTICE OF THE SUPERIOR COURT, IN PORTLAND, MAINE, ON

Page 7 of 8 Printed on: 09/06/2006

PORSC-CV-2002-00410

DOCKET RECORD

WEDNESDAY, FEBRUARY 9, 2005 AND THURSDAY, FEBRUARY 10, 2005. AD

03/21/2005 Party(s) : CITY OF PORTLAND

MOTION - MOTION FOR ENLARGEMENT OF TIME GRANTED ON 03/21/2005

THOMAS E DELAHANTY 11, JUSTICE

DEFENDANT, CITY OF PORTLAND'S CONSENTED-TO MOTION TO EXTEND TIME FOR FILING OF POST-TRIAL

CLOSING BRIEFS IS GRANTED. THE PARTIES SHALL HAVE UNTIL MARCH 24, 2005 TO COMPLETE THE

BRIEFING IN THIS MATTER. ON 03-21-05 COPIES MAILED TO JERROL CROUTER, ESQ. AND ROBERT

CRAWFORD, ESQ. AD

03/24/2005 Party(s): FIVE LIVER COMPANY

OTHER FILING - PROPOSED FINDINGS OF FACT FILED ON 03/24/2005

OF PLAINTIFF WITH CONCLUSIONS OF LAW. (LH)

03/25/2005 Party(s): CITY OF PORTLAND

OTHER FILING - PROPOSED FINDINGS OF FACT FILED ON 03/24/2005

OF DEFENDANT, CITY OF PORTLAND'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH

EXHIBITS A AND B. AD

09/06/2006 FINDING - JUDGMENT DETERMINATION ENTERED ON 09/06/2006

THOMAS E DELAHANTY 11, JUSTICE

DECISION AND JUDGMENT: THE COURT FINDS THAT THE FAIR MARKET VALUE FOR THE LAND ($940,000)

AND THE INCLUDED PERMITS ($400,000)BEFORE THE TAKING IS $1,340,000AND THAT THE POST-

TAKING VALUE IS $950,000 FOR A NET VALUE FOR THE TAKING OF $390,000. AFTER DEDUCTION OF

THE SUM PREVIOUSLY PAID BY THE CITY ($215,000),THE PLAINTIFF IS ENTITLED TO JUDGMENT IN

THE AMOUNT OF $175,000. THE CLERK WILL MAKE THE FOLLOWING ENTRY AS THE DECISION AND

JUDGMENT OF THE COURT: JUDGMENT FOR PLAINTIFF FIVE LIVER COM-

ORDER - COURT JUDGMENT ENTERED ON 09/06/2006

THOMAS E DELAHANTY 11, JUSTICE

DECISION AND JUDGMENT: THE COURT FINDS THAT THE FAIR MARKET VALUE FOR THE LAND ($940,000)

AND THE INCLUDED PERMITS ($400,000)BEFORE THE TAKING IS $1,340,000AND THAT THE POST-

TAKING VALUE IS $950,000 FOR A NET VALUE FOR THE TAKING OF $390,000.AFTER DEDUCTION OF

THE SUM PREVIOUSLY PAID BY THE CITY ($215,000),THE PLAINTIFF IS ENTITLED TO JUDGMENT IN

THE AMOUNT OF $175,000. THE CLERK WILL MAKE THE FOLLOWING ENTRY AS THE DECISION AND

JUDGMENT OF THE COURT: JUDGMENT FOR PLAINTIFF FIVE LIVER COM- IN THE AMOUNT OF $175,000

AGAINST THE DEFENDANT, CITY OF PORTLAND. THE PLAINTIFF IS AWARDED INTEREST AND COSTS AS

ALLOWED BY RULE AND STATUTE. SO ORDERED. ON 09-06-06 COPIES MAILED TO JERROL CROUTER, ESQ.

AND ROBERT CRAWFORD, ESQ. AD AND MS. DEBORAH FIRESTONE, THE DONALD GARBRECHT LAW

LIBRARY, GOSS MIMEOGRAPH, LOISLAW.COM, INC. AD

Judgment entered for FIVE LIVER COMPANY and against CITY OF PORTLAND in the amount of

$175000.00.

09/06/2006 FINDING - FINAL JUDGMENT CASE CLOSED ON 09/06/2006

ATTEST :

iY Clerk

Page 8 of 8 Printed on: 09/06/2006

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.