On appeal from Superior Court, Law Division, Morris County.
Antell, Deighan and Landau. The opinion of the court was delivered by Antell, P.J.A.D.
Plaintiff appeals from an order dismissing its condemnation proceeding against defendants, owners of a parcel of improved real estate in Morristown. The action was dismissed for plaintiff's failure to comply with the following provision of the Eminent Domain Act:
In concluding that plaintiff had failed to negotiate in good faith the trial court found that defendants were never furnished with a copy of either of the two appraisals during negotiations and were never advised of the manner in which the original offered amount was calculated. We affirm substantially for the reasons stated by the Law Division in its oral opinion of December 8, 1986. See State v. Hancock, 208 N.J. Super. 737 (Law Div.1985), aff'd o.b. 210 N.J. Super. 568 (App.Div.1985). See also, N.J. Housing & Mtg. Fin. Agency v. Moses, 215 N.J. Super, 318, 329 (App.Div.1987), certif. den. 107 N.J. 638 (1987).
Defendants cross-appeal from an order dated March 5, 1987 denying their application for expenses incurred in defending
the proceeding, relying upon the following two provisions of the Eminent Domain Act.
If, after the filing of a declaration of taking, a judgment shall be entered dismissing the action, title to and possession of the property shall revest in the condemnee, subject to the same right, title, interest and liens as existed as of the date of the filing of the declaration of taking. In such event, condemnor shall file and record the judgment and pay any damages sustained by the condemnee as a result of the action of the condemnor, and the expenses of the condemnee. [ N.J.S.A. 20:3-24].
If the court renders final judgment that the condemnor cannot acquire the real property by condemnation or, if the condemnation action is abandoned by the condemnor, then the court shall award the owner of any right, or title to, or interest in such real property . . . such sum as will reimburse such owner for his reasonable costs, disbursements and expenses actually incurred, including reasonable attorney, appraisal, and engineering fees. [ N.J.S.A. 20:3-26(b)].
Plaintiff filed its declaration of taking with the court on September 4, 1986 and the suit was dismissed by order dated December 18, 1986.
The court gave as its reason for denying the application the fact that it did not regard its order of dismissal as a "final judgment" within the meaning of the statute. It expressed its intent that the dismissal should be "without prejudice" and that plaintiff was to be free to institute a new condemnation action after it satisfied its obligation to attempt to acquire the property through bona fide negotiations. We note, parenthetically, that although the court clearly expressed its intention during the hearing that the dismissal should be without prejudice to the bringing of a new action, this is nowhere stated in the order of dismissal. R. 4:37-2(d) provides that an order of dismissal which does not otherwise specify "operates as an adjudication on the merits." On the premise that the order imperfectly expressed the intention of the court, we are nevertheless of the view that it was a "final judgment" within the meaning of N.J.S.A. 20:3-26(b), and a "judgment . . . dismissing the action . . ." within the meaning of N.J.S.A. 20:3-24 so as to entitle defendants to reimbursement for their reasonable expenses. Indeed, even plaintiff's notice of appeal states that the appeal is being taken from a "judgment" of the Law Division which
disposed of "all issues as to all parties," thereby satisfying the requirement for an appeal of right that it be from a ...