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Glorious Food, Inc. (New York) v. Georgetown Prospect Place Associates

October 20, 1994

GLORIOUS FOOD, INC. (NEW YORK), APPELLANT
v.
GEORGETOWN PROSPECT PLACE ASSOCIATES AND ROBERT R. ELLIOTT, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Trial Judge)

Before Terry and Steadman, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor

PRYOR, Senior Judge: In a conversion action brought against a lessor of commercial property, appellant, a former lessee who initially operated a restaurant and catering business at the leased premises, sought to recover the fair market value of its restaurant equipment, which remained on the premises after a default under the lease agreement. The trial court granted the lessor's motion for a directed verdict on the ground that appellant failed to establish its damages. Appealing from this ruling, appellant contends the trial Judge abused his discretion by (1) disqualifying its proffered expert witness on the valuation of restaurant equipment, and (2) subsequently disallowing this same witness from testifying as a fact witness. Finding merit in appellant's latter contention, we reverse the trial court's order for a directed verdict and remand for a new trial.

I. Facts

Glorious Food, Inc. ("Glorious Food"), a corporation, leased retail office space in the District from Georgetown Prospect Place Associates ("Georgetown Prospect"), a-limited partnership, *fn1 in order to operate a restaurant and catering business. Glorious Food subsequently sold this business to Douglas DeRosa, but retained a security interest in certain restaurant equipment which remained at the leased premises as security for payment. Under the amended lease agreement, Glorious Food agreed to guarantee payments of rent owed by DeRosa. DeRosa subsequently defaulted in his payments to both Glorious Food and Georgetown Prospect, and as a consequence, Georgetown Prospect initiated a landlord-tenant action to recover possession of the leased premises. The parties ultimately resolved this matter by entering into a settlement agreement which granted possession of the leased premises to Georgetown Prospect. This settlement agreement also provided that Georgetown Prospect could elect to purchase from Glorious Food the restaurant equipment for its fair market value.

In January of 1988, Georgetown Prospect notified Glorious Food of its interest in buying the used restaurant equipment. When the parties could not agree on the price for restaurant equipment, Glorious Food requested the return of the equipment. Georgetown Prospect failed to relinquish the equipment. On November 21, 1991, Glorious Food filed a conversion action seeking to recover the fair market value of the equipment as of January 1988. At trial, Glorious Food proffered Kenneth R. Gill as an expert on the valuation of restaurant equipment. In support of his qualification to testify as an expert, Mr. Gill testified that during the past twenty-five years, he was involved with supplying restaurant equipment and designing restaurants in the Washington-Baltimore area. In addition, Mr. Gill testified that he obtained recognition in this area from the National Association of Manufacturers and that he was a commissioned salesman of restaurant equipment for approximately ten years. He further stated that he had previously testified as an expert in other cases. However, several times during his cross-examination, Mr. Gill was confronted with his earlier deposition testimony in which he stated that he had no experience in valuing or pricing restaurant equipment.

In light of these inconsistencies regarding Mr. Gill's qualifications, the trial Judge found that Mr. Gill did not have appropriate experience in purchasing or selling restaurant equipment, and therefore concluded that Mr. Gill was not qualified to testify as an expert on the valuation of restaurant equipment.

After the trial court declined to qualify Mr. Gill as an expert, Glorious Food attempted to introduce him as a fact witness since he took photographs of the restaurant equipment in August of 1992. *fn2 Relying upon this court's decision in Beach v. United States, 466 A.2d 862 (D.C. 1983) (per curiam), the trial court reasoned that this jurisdiction prohibits the same person from testifying as an expert and a fact witness in the same proceeding, and therefore, denied Glorious Food's request to allow Mr. Gill to testify as a fact witness. The trial Judge also relied upon the fact that Mr. Gill was not listed as a fact witness in the pretrial statement.

At the close of the evidence, Georgetown Prospect moved for a directed verdict on several grounds, one of which included the lack of evidence establishing damages. In considering this motion, the trial court stated:

This case concerns a claim for lost damages of property used in a commercial restaurant. The type of property that a jury would have no experience with and would have no basis to evaluate absent some showing of what used restaurant equipment is worth some five to ten years after it was installed . . . . No such evidence has been presented by the . . . . The only person who might have had that knowledge was an expert witness, Mr. Gill. But . . . Mr. Gill was not qualified to give that opinion.

Persuaded by the argument that Glorious Food failed to demonstrate its damages, the trial court granted Georgetown Prospect's motion for a directed verdict. Glorious Food filed a timely appeal.

II. Discussion

A. Qualification of Expert Testimony

The threshold determination as to whether a witness is qualified to testify as an expert is within the trial court's discretion, and it is subject to reversal only upon finding an abuse. See Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1256 (D.C. 1992); In re Melton, 597 A.2d 892, 897 (D.C. 1991) (en banc); Bell v. Jones, 523 A.2d 982, 990 (D.C. 1986); Waggaman v. Forstmann, 217 A.2d 310, 311 (D.C. 1966); JOHN W. STRONG, MCCORMICK ON EVIDENCE § 13, at 55 (4th ed. 1992). "To qualify as an expert witness and render an opinion, the witness must have sufficient skill, knowledge, or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth." Tuerr, supra, 616 A.2d at 1256 (internal quotations and citations omitted) (emphasis added); see Street v. Hedgepath, 607 A.2d 1238, 1244 (D.C. 1992); In re Melton, supra, 597 A.2d at 897; Dyas v. United States, 376 A.2d 827, 832 (D.C.), cert. denied, 434 U.S. 973, 54 L. Ed. 2d 464, 98 S. Ct. 529 (1977). While a witness may be qualified to testify as an expert on the basis of his experience in a particular field, *fn3 a trial Judge is not obliged to qualify a proffered expert when there are ...


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