
    Union Trust Company v. Edwin C. Fordham
    (13391)
    O’Connell, Heiman and Cretella, Js.
    Argued December 1, 1994
    decision released January 17, 1995
    
      James M. Nugent, for the appellant (defendant).
    
      Kristi M. Agniel, for the appellee (plaintiff).
   Per Curiam.

This appeal by the defendant from a deficiency judgment in a mortgage foreclosure action claims that the plaintiff did not sustain its burden of proof properly to establish a deficiency, and further claims that any such deficiency was improperly calculated since it reflected evidence not properly submitted to the trial court. We agree in part.

As the finder of fact, the trial court had discretion to accept or to reject any or all of the testimony of the opposing expert appraisers. Neither its finding that the value of the property was $300,000 nor its restriction of testimony from a witness relating to zoning procedures was an abuse of that discretion.

We conclude, however, that the court’s use of the tax lien data that was provided to the court and to opposing counsel by letter after the conclusion of the hearing was improper. The defendant who filed a written objection to such evidence had no opportunity to question such data or to cross-examine any witness concerning it. Since the total of the tax liens was a sum certain in the amount of $14,218.75, further proceedings are not required.

The deficiency judgment is reversed in part and the case is remanded with direction to render judgment reducing the deficiency to $74,440.25.  