Torromeo Industries v. State of New Hampshire

THE STATE OF NEW HAMPSHIRE

SUPREME COURT

In Case No. 2020-0483, Torromeo Industries v. State of New
Hampshire, the court on May 13, 2021, issued the following
order:

Having considered the parties’ briefs and the record submitted on appeal,
we conclude that oral argument is unnecessary in this case. See Sup. Ct. R.
18(1). The plaintiff, Torromeo Industries (Torromeo), appeals an order of the
Superior Court (Schulman, J.) issued after we vacated the trial court’s award of
$70,800 in condemnation damages and remanded to the trial court for further
proceedings consistent with our opinion. See Torromeo Indus. v. State of N.H.,
173 N.H. 168 (2020). We affirm.

We recite the background facts as necessary to decide this appeal.
Torromeo owns several acres of land in Plaistow on which there is a 4,000-
square-foot light industrial building and a 1,500-square-foot single-family
residence. Id. at 170. Before the taking at issue, Torromeo’s lot consisted of
11.88 acres; the residence occupied approximately .36 acres and the light
industrial use occupied approximately 2 acres, leaving approximately 9.52
acres for potential development. Id. The residence rented for $1,500 monthly,
net of utilities. Id.

In 2015, the State took approximately 1.9 acres of Torromeo’s land by
eminent domain and also took approximately 30,000 square feet for permanent
and temporary easements. Id. As a result of the taking, Torromeo’s property
became three, independent parcels: (1) a .36-acre lot on which the residence
sits; (2) an approximately 10-acre site on which the light industrial building
sits of which approximately 6.55 to 8 acres are considered to be surplus land;
and (3) a .28-acre “gore” or uneconomic remnant. Id.

The State offered Torromeo $500 as just compensation for the taking. Id.
Torromeo declined the offer and sought a determination of condemnation
damages from the New Hampshire Board of Tax and Land Appeals (BTLA). Id.
Thereafter, the State offered, consistent with the view of its appraiser, and the
BTLA ordered, $35,000 in just compensation. Id. Torromeo petitioned the
superior court for de novo review of the BTLA award. Id.

Both parties submitted appraisal reports from their experts, who were
the only witnesses at the bench trial. Id. at 171. Relying upon the residential
portion of the property’s rental value and using the income capitalization
approach to value, the State’s expert opined that, before the taking, the
residential portion was worth $155,000. Id. at 172. The State’s expert
assumed that, after the taking, the residence would be sold. Id. Therefore, he
used the sales comparison approach to estimate its selling price. Id. Under
that approach, the residential lot’s value was $190,000. Id. The State’s expert
opined that the surplus land sustained approximately $70,000 in damages,
which was offset by the approximately $35,000 that the value of the residential
lot increased as a result of becoming a separate, saleable lot after the taking.
Id.

Using the cost approach to value, Torromeo’s expert opined that the
“before taking” value of the residential lot was $184,000 and its “after taking”
value was $70,000. Id. Using the sales comparison approach, the expert
opined that the “before taking” value of the residential lot (including the
dwelling) was $237,500, and its “after taking” value was $112,500. Id.

Following a hearing and a view, the trial court accepted the State’s
appraisal except as it related to the residential portion of the property. Id. at
173. The court found that the highest and best use of that portion of the
property, both before the taking and afterwards, was as a “saleable residential
lot.” Id. (quotation omitted). Although the court recognized that, because of
the lot’s size, waivers and variances would be required, both before and after
the taking, the court decided that “Torromeo would be entitled to subdivision
regulation waivers and zoning variances.” Id. (quotation and brackets omitted).
Because the court concluded that the residential portion of the lot could have
become a separate, saleable lot both before and after the taking, the court
rejected the State appraiser’s opinion that the taking increased the lot’s value.
Id. at 174. Instead, the court found that the value of the residential lot
remained the same, both before and after the taking. Id. Therefore, the court
awarded Torromeo $70,800 as just compensation for the taking based upon
the State appraiser’s opinion that the taking caused the surplus land to
sustain $70,000 in damages and upon the $800 value the court gave to a
temporary construction easement. Id.

The State appealed the trial court’s determination that the residential lot
could have become a separate, saleable lot before the taking, contending that
the evidentiary record did not support this determination. Id. at 176. We
agreed with the State, explaining that “[b]ecause there was no evidence that it
was reasonably probable that the property could have been subdivided before
the taking, thereby rendering the residential lot separate and saleable, there
was no support for the trial court’s finding that the lot’s ‘before taking’ value
was $190,000, the same as its ‘after taking’ value under the sales comparison
approach.” Id. at 178. We also explained that, to the extent that the trial court
determined that, before the taking, Torromeo would have been entitled to a
waiver from the subdivision regulations, that determination was similarly
without record support. Id.

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 Because we were unable to discern how the trial court would have ruled
had it not found that the residential lot could have been a separate, saleable lot
both before and after the taking, and because we could not determine, as a
matter of law, the “before taking” and “after taking” value of that lot, we
vacated the trial court’s condemnation damages award and remanded for
further proceedings consistent with our opinion. Id. at 179-80.

On remand, Torromeo, armed with a new expert witness, filed a motion
requesting that the trial court hold a new evidentiary hearing. The trial court
denied the motion, reasoning that nothing in our opinion suggested that we
“envisioned either a new trial on the merits or a new evidentiary hearing.”
Based upon its review of the already-developed record, the trial court adopted
the opinion of the State’s expert that the residential lot with the dwelling and
improvements was worth $155,000 before the taking and $190,000 after the
taking, and that the non-residential land suffered a $70,000 diminution in
value as a result of the taking. Because the residential lot increased in value
by $35,000 as a result of the taking, the trial court subtracted $35,000 from
the $70,000 diminution in value sustained by the non-residential lot, and
awarded Torromeo $35,000 in condemnation damages. Torromeo
unsuccessfully moved for reconsideration, and this appeal followed.

On appeal, Torromeo first argues that our opinion in Torromeo
“require[d] the State to try the case de novo.” We disagree.

“As a general proposition, the trial court is bound by the mandate of an
appellate court on remand. Augur v. Town of Strafford, 158 N.H. 609, 612
(2009).” “[A] trial court is barred from acting beyond the scope of the mandate,
or varying it, or judicially examining it for any other purpose than execution.”
Id. at 613 (quotation omitted). However, in implementing the mandate,
“the trial court need not read the mandate in a vacuum, but rather has the
opinion of this court to aid it. In this way, the trial court may examine the
rationale of an appellate opinion in order to discern the meaning of language in
the court’s mandate.” Id. (quotation and brackets omitted). “Indeed, the
proceedings on remand must be in accordance with both the mandate of this
court and the result contemplated in the opinion.” Id.

“Generally, a trial court is free upon remand to take such action as law
and justice may require under the circumstances as long as it is not
inconsistent with the mandate and judgment of this court.” Id. (quotation and
brackets omitted). “Because appellate judgments are not self-executing, trial
courts have some degree of flexibility in their implementation.” Id. “Therefore,
insofar as our opinion in a case does not conclusively decide the parties’ rights
in the subject matter of the suit, the trial court has some discretion in
implementing the mandate.” Id. “Where, however, our opinion conclusively
determines the parties’ rights, the trial court has no discretion in implementing
the mandate.” Id.

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 “Upon a subsequent appeal to this court following remand, our review is
limited to whether the trial court’s ruling is consistent with our mandate.” Id.
The determination of whether the trial court correctly interpreted our prior
opinion and mandate is a matter of law, and we review the trial court’s ruling
de novo.” Id.

Here, we conclude that the trial court correctly interpreted our prior
opinion and mandate. As the trial court aptly concluded, we held in Torromeo
that the trial court had erred in determining the highest and best use of the
residential portion of Torromeo’s lot before the taking because the record did
not support the trial court’s finding that this portion of the lot “could have been
subdivided into a saleable residential lot prior to the taking.” See Torromeo,
173 N.H. at 178. We, therefore, vacated the trial court’s award of
condemnation damages and remanded the case because we could not decide
the “before taking” and “after taking” values of the residential lot as a matter of
law, and because we could not discern how the trial court would have ruled
had it not found that the residential lot could have been a separate, saleable lot
both before and after the taking. Id. at 179-80.

We did not require the trial court to hold a new evidentiary hearing to
make those findings. Rather, we remanded to the trial court to make the
findings in the first instance because we could not do so ourselves as a matter
of law. Id. at 179; see Augur, 158 N.H. at 614 (“Ordinarily, we will remand
unresolved factual issues for analysis . . . , unless the record reveals that a
reasonable fact finder necessarily would reach a certain conclusion, in which
case we may decide the issue as a matter of law.”); see also Dunn v. CLD
Paving, 140 N.H. 120, 123 (1995) (“We do not find facts in the first instance,
especially where to do so would require an evaluation of the credibility of
witness testimony.”).

Torromeo next contends that the trial court violated its constitutional
rights to due process by failing to hold a new evidentiary hearing. Torromeo
argues that “[n]o final decision should stand until the condemnee has had an
opportunity to put the State to its burden of proof to establish the before and
after taking damages.” The State counters that Torromeo was afforded due
process in the bench trial at which the State had the burden to prove, by a
preponderance of the evidence, that its deposit of compensation was just, and
at which Torromeo presented expert testimony, participated in a view of the
property, cross-examined the State’s expert witness, and was given the
opportunity to introduce any admissible evidence it desired to support its view
and to file post-trial memoranda. The State argues that “Torromeo has been
afforded every protection and opportunity to be heard,” and, therefore, “cannot
credibly claim any due process violation.”

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 “To determine whether due process required an evidentiary hearing in
the superior court, we normally would examine the following three factors: (1)
the private interest affected by the official action; (2) the risk of an erroneous
deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and (3) the
government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural
requirements would entail.” State v. Korean Methodist Church of N.H., 157
N.H. 254, 258 (2008); see Mathews v. Eldridge, 424 U.S. 319, 335 (1976).
However, Torromeo “neither cites nor discusses the foregoing three-factor
analysis, and points to no controlling precedent establishing that, in the face of
the process that [Torromeo] indisputably received, it also had a right to an
evidentiary hearing in superior court.” Korean Methodist Church of N.H., 157
N.H. at 258 (quotation and citation omitted). “Under these circumstances,
therefore, we consider this argument undeveloped and decline to review it.” Id.

Affirmed.

Hicks, Bassett, Hantz Marconi, and Donovan, JJ., concurred.

Timothy A. Gudas,
Clerk

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