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COMMISSIONER OF TRANSPORTATION v. ROCKY MOUNTAIN, LLC, ET AL. (SC 17317)
Borden, Norcott, Katz, Vertefeuille and Zarella, Js. Argued September 22, 2005--officially released April 11, 2006

Gregory F. Servodidio, with whom was Laura A. Bellotti, for the appellant (defendant Viacom Outdoor, Inc.). Peter R. Huntsman, assistant attorney general, with whom, on the brief, was Richard Blumenthal, attorney general, for the appellee (plaintiff).
Opinion

VERTEFEUILLE, J. The defendant Viacom Outdoor, Inc. (Viacom), a business that sells outdoor advertising,1 appeals from the judgment of the trial court awarding Viacom damages for the taking by eminent domain of an easement for two billboards by the plaintiff, the commissioner of transportation (commissioner). The two dispositive issues in this appeal are whether the trial court: (1) possessed subject matter jurisdiction to make a separate damages award for the loss of the billboards; and (2) improperly failed to award damages for the loss of all of the income generated by the billboards when the trial court reassessed damages for the taking of the easement. We conclude that the trial court did not have subject matter jurisdiction to make a separate damages award for the loss of the billboards and that the trial court properly declined to award damages for all of the lost billboard income when it reassessed damages for the taking of the easement. We therefore vacate the trial court's order with respect to the amount of damages awarded separately for the billboards and we affirm the judgment in all other respects. The record reveals the following facts and procedural history that are relevant to our resolution of this appeal. In 1998, Viacom's predecessor in interest was granted an easement2 permitting it to maintain two billboards3 for a term of ninety-nine years on certain land located in Waterbury. Both the fee interest in the land, which was owned by the named defendant, Rocky Mountain, LLC (Rocky Mountain), in 2001, and Viacom's easement were condemned by the commissioner in 2002 for a highway reconstruction project. In August, 2001, prior to the taking, the commissioner had sent a letter to Viacom informing Viacom that the reconstruction project required removal of its billboards from the property. The letter had offered Viacom $40,300 if it chose to abandon the billboards and a lesser amount if Viacom chose to remove and retain the billboards. Viacom did

not accept either amount. On February 8, 2002, the commissioner filed a notice of condemnation and an assessment of damages for taking the land, including the easement, of $326,500. Viacom and Rocky Mountain both appealed from the assessment to the trial court, seeking a reassessment of damages. Viacom sought damages for the taking of both the easement and the billboards. The commissioner thereafter filed a motion to dismiss Viacom's appeal for lack of subject matter jurisdiction, arguing that the billboards constituted personal property that was not acquired by the condemnation and that Viacom failed to allege that it was aggrieved by the taking of the easement. The trial court denied the motion to dismiss, concluding that Viacom's loss of the easement was sufficient to establish aggrievement. The trial court did not rule on the commissioner's claim that the billboards had not been taken as a result of the condemnation. The commissioner then filed an answer and special defenses, including a defense that the billboards are personal property and were not part of the taking described in the notice of condemnation. At trial, Viacom's appraiser, Donald Sutte, testified that he had valued Viacom's easement interest at $192,300, which he calculated by relying on a portion of the income generated by the billboards. The commissioner's appraiser for the land, Walter Kloss, agreed that Sutte's valuation of $192,300 constituted a reasonable value for the easement. Sutte further testified that, in his opinion, Viacom possessed a separate real property interest in the billboards, which he called a ``leasehold interest.''4 Sutte defined this ``leasehold interest'' as the value of the billboards as well as the right to use and occupy the billboards. Sutte separately appraised the ``leasehold interest,'' ascribing values of $234,900 and $201,000, respectively, to the two billboards, which he had calculated by relying largely upon the income generated by the billboards. Sutte combined these values for the ``leasehold interest'' with the value ascribed to the easement for a total valuation of $628,200. Charles Floyd, the commissioner's expert witness concerning valuation methodologies, testified that the billboards and their income are components of Viacom's outdoor advertising business, and do not constitute a separate compensable interest in real property. The commissioner's billboards appraiser, Bruce Cowdrey, testified that the value of the billboards was $40,300. Cowdrey valued the billboards as personal property and considered only the cost of the component parts, without considering the income generated by them.5 After trial, by judgment dated May 14, 2004, the court reassessed the damages from the taking and awarded

$192,300 to Viacom.6 The judgment file indicated that the trial court would issue a memorandum of decision at a later time. On June 3, 2004, Viacom appealed from the trial court judgment.7 In its subsequent memorandum of decision, dated July 2, 2004, the trial court found that $192,300 was the fair market value of the easement ``improved with the billboard structures . . . .'' The trial court rejected Viacom's contention that the billboards constituted an independently compensable interest in real property, finding that ``the billboards are not real estate but personal property.'' In the final paragraph of its memorandum of decision, the trial court stated that ``the court does not consider [the billboards] to be real property, and the offer of compensation by the commissioner, conditioned on Viacom's abandonment of the [billboards], is reasonable.'' On October 4, 2004, Viacom moved for rectification of the judgment, requesting that the trial court increase the amount of the judgment by $40,300, the amount of the commissioner's offer based on the abandonment of the billboards. Viacom argued that the judgment should include that amount because the trial court had found in its memorandum of decision that the commissioner's offer of compensation for the billboards was reasonable, but failed explicitly to award that amount as damages. After a hearing on October 26, 2004, the trial court granted the motion for rectification and, in an oral ruling from the bench, amended the judgment by increasing the damages awarded to Viacom by $40,300 in compensation for the billboards, which the court again found to be personal property. Thereafter, on March 24, 2005, the trial court issued a written ``Order Re Motion for Rectification'' in which the court stated that its decision to grant the motion was based on its consideration of General Statutes

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