It’s Only an Opinion

An Appraiser in Court

This is a review of Henry J. Wise’s, MAI, CBA, BVAL, CRE (Retired) recently released book, It’s Only an Opinion: An Appraiser in Court. In this book, comprised of 23 chapters, Mr. Wise is not only humorous but also insightful. He shares several nuggets from his 35-years of experience testifying in court on real estate controversies. He offers valuable information to business appraisers, real estate attorneys, and real property appraisers.

This is a review of Henry J. Wise’s, MAI, CBA, BVAL, CRE (Retired), recently released book, It’s Only an Opinion: An Appraiser in Court. In this book, comprised of 23 chapters, Mr. Wise is not only humorous but also insightful. He shares several nuggets from his 35-years of experience testifying in court.

What sets the book apart from others marketed and sold to business appraisers is that he illustrates several controversies where his real property and business valuation appraisal expertise complimented each other. In his own words, Mr. Wise tells us he has written the book for “commercial real estate appraisers working in the U.S. and in other countries, the thousands of attorneys in eminent domain condemnation or real estate practice bond financing, estates, and tax professionals, it is written too for business appraisers that will find themselves in court because the value of something is an issue.”

Though he reminisces, he has included chapters that illustrate how he was called, as an expert, to resolve eminent thorny disputes involving easements, fractional interests discounts for lack of control, senior living, bond financing leaseholds, business loss (an adult enterprise), and consequential benefits and damages. As an attorney and business valuation professional, I learned something and found comfort knowing how much I have in common with Mr. Wise’s approach handling controversies.

In my opinion, the first few chapters of the book are directed to aspiring experts and/or attorneys who have not worked with experts.  Chapter 3, The Expert Witness, explains what is litigation support, the role of the expert, and the qualifying process. In Chapter 4, Appraisal is a Stinking Business, recounts a condemnation case involving a rendering plant—a favorite case of his—that involved a battle of appraisers. What set Mr. Wise apart in this case was his understanding of the industry and businesses that were impacted by the closure of the rendering plant. Chapter 5, More Appraisals of Stinking Businesses, involves the appraisal of a sewer plant. Again, understanding the economics and industry enabled Mr. Wise to properly represent a financial institution that had lent money to a developer to acquire and develop a treatment plant. Here, “the economic value of the sewer plant depend[ed] on three features. One feature is the potential capacity of the river to accept treated sewage. A second is the capital cost of improving and operating the plant to treat sewage to the extent that the effluent does not exceed the limits established by the Environmental Protection Division (EPD). The third is that there is demand for sewage treatment within a reasonable market area.” Here, he believed that “the residential and commercial growth of the area would support a 5-mgd plant, but that it would take between 15 to 20 years to fully absorb the 5-mgd capacity. We thought that a plant of this size was technologically possible and economically feasible. We assigned an 80% probability that the 5-mgd plant is the most economically feasible alternative. We assigned a 20% probability that a 2-mgd plant is the most economically feasible alternative.” This damages case settled favorably despite Mr. Wise opining that the pant was worth four times more than what the county offered.

Chapter 6, Litigation Support, provides a caution to experts. Mr. Wise recounts that, “I’ve learned over the years that as a witness you will have about two minutes of the jury’s attention. They will listen to your qualifications during the voir dire, but when you start to testify, you only get a minute or two before the jury members’ eyes glaze over. The jury isn’t really going to listen to and weigh all your cogent arguments. What the jury is really going to decide is whether they like you better than they like the expert on the other side. If they like you, they are more likely to trust you. If they trust you, they will be much more likely to accept your opinion.” The remainder of the chapter provides an overview of USPA and ethical considerations and what to expect in court. This is a review for experienced experts.

In the ensuing chapters, Mr. Wise describes the nuances of real property valuation and shares an engagement where the U.S. Department of Justice wanted to acquire all land south of Alligator Alley (I-75 crossing Florida from the east coast to the west coast) to expand the Everglades National Park and the Big Cypress. Chapter 10 delves into an engagement where he was asked to appraise a cave that was popular with tourists. Chapter 11 involves an appraisal of 60 miles of a privately held, short-line railroad that was being used to store boxcars. A three-page M&E appraiser had prepared a three-page appraisal—which was the basis of a loan—and Mr. Wise was retained on account that a regulator was coming and this report was not USPAP compliant. The complication in this case was that the power poles on the corridor were owned by the power plant and the power plant owned an easement in this corridor. At this point too, the Telecommunications Act of 1996 had passed and CATV companies were attaching lines to the power poles. So, the matter was further complicated by a new question, that is, “what is the fair market value of rent for the right to attach a cable to a power pole?” This latter issue is the one that Mr. Wise focused on since he was hired to develop evidence of the appropriate charge.

In Chapter 12, Mr. Wise shares an eminent domain story; the local Development Authority condemned private property for another private purpose. Here, a local pharmacy was condemned so a larger Walgreens could go in and pay more property tax and hire more employees. In this chapter, he also discusses inverse condemnation and the measure of damages in those cases. It is a short chapter designed to instruct readers on the various types of eminent domain actions. Chapter 13 builds on that foundation.

Chapter 14, I Know What the Whole Thing’s Worth. What is My Part Worth?, focuses on LPs, FLPs, LLCs, and REITS. The reader is introduced to fractional interests’ discounts for lack of control, discounts for lack of marketability, tenancy in common, publicly registered but privately traded limited partnerships, and sales of undivided interests. Chapter 15 focuses on senior living and covers continuing care retirement communities (CCRC) and certificate of need (CON).

Chapter 16, Consequential Benefits and Consequential Damages, discusses how these arise in connection with eminent domain actions. Here, the appraiser may be tasked with determining compensation for the acreage being taken and would have two very different rules to follow, depending on the jurisdiction of the taking authority. Mr. Wise explains these in this chapter as well as consequential damages. This chapter is one of the lengthiest and very insightful. He illustrates the issues recounting the Midtown Plaza Shopping Center case, the Silver Skillet Grill, Ritz Camera, Wolf Camera, and 14^th Street Bridge cases. In Chapter 17, Proximate Damages, he returns to the 14^th Street Bridge case to explain the appraisal problem to be solved; the appraiser must consider whether this is a case involving the “before and after” problem or “but for problem”.

Chapter 18, Business Loss, discusses the issues encountered appraising a business that has real estate. Here, he recounts the appraisal of an adult business and highlights a portion of the cross-examination. Mr. Wise concludes the book discussing a bond financing leasehold dispute and valuation of an easement. Here, he discusses permanent and temporary easements and how these can impact businesses.

Conclusion

Mr. Wise provides readers with far more than just an Opinion. This is a humorous, yet insightful book that provides business appraisers, real estate attorneys and property appraisers with information on unique valuation issues presented when real estate is the subject of a valuation dispute.

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Roberto H Castro, JD, MST, MBA, CVA, CPVA, is an appraiser of closely held businesses, machinery, and equipment, and Managing Member of Central Washington Appraisal, Economics and Forensics, LLC. Mr. Castro is also a Senior Attorney with the Gravis Law, PLLC group North Central Washington Offices where he focuses on real estate, tax, wills and trust law, business litigation, and succession planning. 

He is also Technical Editor of QuickRead and previously wrote the federal case law columns for The Value Examiner.

Mr. Castro can be contacted at (509) 679-3668 or by e-mail to rcastro@gravislaw.com.