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City of Long Branch v. Liu

May 20, 2009

CITY OF LONG BRANCH, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JUI YUNG LIU AND ELIZABETH LIU, HIS WIFE, ADELINA'S PIZZA, JIMMY'S PIZZA, JIMMY JETTY, INC., AND JIMMY'S FAMOUS BOARDWALK HOTDOGS, DEFENDANTS-APPELLANTS, AND ADMINISTRATOR OF SMALL BUSINESS ADMINISTRATION, HOROAPH CO., L.L.C. T/A DAIRY KING, GIFTED SARA, WIZARD WORLD, INC., SPECIALTY MERCHANDISE ASSOCIATION, FUNHOUSE, AND CLUB 115, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, No. L-2235-01.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 28, 2008

Before Judges Wefing, Parker and LeWinn.

Defendants appeal from a judgment entered following a jury trial on plaintiff's eminent domain complaint. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendants Jui Yung Liu and his wife owned a parcel of beachfront property in Long Branch that was approximately 1.2 acres in size. The property was in the RC-3 Waterfront Mixed District in which a variety of different uses were permitted, including mid-rise apartment buildings, hotels, waterfront mixed residential units, convention center, health spas, retail uses, arcades, and eating and drinking establishments. On the property was a large building, a portion of which was one-story, another portion of which was two-story. Defendants operated several businesses at the site, including a nightclub, a pizza place, and a hotdog place, and rented out portions of the premises for other, similar businesses.

In 1996 Long Branch declared the area as one in need of redevelopment and in May 2001 it filed a complaint seeking to take defendants' property through eminent domain. In October 2001, the City filed a declaration of taking and deposited the sum of $900,000 with the Clerk of the Superior Court. Defendants contended that sum was wholly inadequate and thus the matter proceeded to trial.

The City's expert testified in support of his calculation of $900,000. Defendants' expert testified that in his opinion the property was worth between $2.7 and $2.8 million. The jury rejected the opinions of both experts and awarded defendants $1.45 million. This appeal followed.

On appeal, defendants raise the following issues for our consideration.

POINT I.

WHETHER THE JURY'S DETERMINATION TO MAKE NO AWARD FOR THE ENHANCEMENT VALUE REPRESENTED BY THE FURNITURE, FIXTURES AND EQUIPMENT FUNCTIONALLY RELATED TO THE BUSINESS WAS AGAINST THE WEIGHT OF THE EVIDENCE AND WAS A MISCARRIAGE OF JUSTICE?

1. THE PROBLEM OF AUTHENTICATION UNDER N.J.R.E. 901

2. THE VIDEO SHOULD HAVE BEEN EXCLUDED UNDER RULE 403

3. THE ENTIRE LINE OF TESTIMONY RELATING TO RELOCATION SHOULD HAVE BEEN EXCLUDED FROM THE CASE

POINT II.

WHETHER THE UNETHICAL CONDUCT OF CONDEMNOR'S COUNSEL DESTROYED ANY SEMBLANCE OF A FAIR TRIAL BY THE UNFAIR USE OF PRIVILEGED MATERIAL CAUSING THE TOTAL EMBARRASSMENT AND LOSS OF CREDIBILITY TO DEFENDANTS' APPRAISAL EXPERT?

1. The Condemnor's Counsel's Questioning of Appellant[s'] Appraisal Expert Was Unethical and Improper and Was Designed to Confuse and Embarrass the Witness

2. Counsel inappropriately referred to privileged information before the jury in violation of the Court's ethics and discovery rules

3. Counsel's questions were a breach of R.P.C. 3.4

4. The Trial Judge's Curative Instruction To the Jury Was Insufficient and Amounted to Reversible Error

POINT III.

WHETHER A SERIES OF CONTRADICTORY EVIDENCE RULINGS ALLOWED IMPROPER EVIDENCE AND UNFAIRLY LIMITED THE PROPERTY OWNERS' PROOFS?

1. THE TRIAL COURT SHOULD NOT HAVE PERMITTED EVIDENCE THAT THE UPSTAIRS SHOULD NOT BE VALUED AS OFFICE SPACE BUT SHOULD ONLY BE TREATED AS "STORAGE"

2. EVIDENCE OF THE SALE AND RESALE OF THE HILTON OR OCEAN PLACE HOTEL WAS IMPROPERLY EXCLUDED

3. EVIDENCE THAT RICHARD SENINSKY, LIUS['] TENANT IN THE ARCADE HAD PAID $100,000 TO BUY INTO THE LEASE OF THE ARCADE WAS APPROPRIATE EVIDENCE INDICATING THAT THE LEASE WAS IN FACT BELOW MARKET VALUE AND WOULD HAVE SUPPORTED DR. MOLIVER'S OPINION OF "MARKET RENT"

4. THE DEMOLITION OF THE FIRE DAMAGED PIER WAS CLEARLY PART OF THE BEACH REPLENISHMENT PROGRAM AND SHOULD NOT HAVE BEEN EXCLUDED UNDER THE DOCTRINE OF "SCOPE OF THE PROJECT"

POINT IV.

WHETHER THE MOTION JUDGE ERRED IN FAILING TO REQUIRE THAT THE CITY'S VALUATION OF THE PROPERTY INCLUDE PROPERTY THAT CAME INTO EXISTENCE THROUGH THE BEACH REPLENISHMENT EFFORTS OF THE U.S. ARMY CORPS OF ENGINEERS?

1. The Lius' Property Extends to Mean High Water

2. The High Water Mark Delineates Ownership of Lands Along the Atlantic Ocean 4 [sic]. Artificial Changes to the Shoreline Inure to the Benefit of the Littoral Owner Provided the Changes Were Not in Aid of Navigation and Were Not Implemented by the Littoral Owner Himself 5 [sic]. The Motion Judge Incorrectly Interpreted The ...


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