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City of Asbury Park v. Alvino

June 1, 2010

CITY OF ASBURY PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
VINCENT ALVINO, DEFENDANT-RESPONDENT, AND J.V. HIGGENBOTTS, INC., A NEW JERSEY CORPORATION, JOHN FERRARA, CULMAC INVESTORS, INC., STATE OF NEW JERSEY AND CITY OF ASBURY PARK SEWERAGE AUTHORITY, DEFENDANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1185-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 19, 2010

Before Judges Fisher, Sapp-Peterson and Espinosa.

In this appeal of a judgment entered following a trial that determined the value of condemned property, plaintiff City of Asbury Park argues that the trial judge should have granted a new trial or ordered a remittitur because: (1) defense counsel inflamed the jury's emotions by accusing the City of "eminent domain abuse"; (2) defense counsel utilized documents that misrepresented certain facts or otherwise misled the jury; and (3) the verdict was excessive. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments regarding defendant's first argument.

On March 13, 2006, the City filed its complaint to condemn defendant Vincent Alvino's 11,000 square foot plot, which is located within the City's waterfront redevelopment area and upon which sits a one-story bar/restaurant. A declaration of taking was later filed, at which time the City deposited into court $250,000, the amount its appraiser deemed to be the property's fair market value. After an evidentiary hearing, court-appointed commissioners awarded $322,000. Both parties appealed that award to the Law Division.

At the outset of the jury trial, Judge John R. Tassini warned counsel not to argue "eminent domain abuse" because the case did not involve the right of the City to condemn the property, only the property's value. The judge was apparently concerned, and correctly so, about the considerable controversy surrounding the condemnation of property in shoreline communities in Monmouth County and elsewhere.

At trial, the parties hotly disputed the method and manner of valuation and, as a result, presented to the jury evidence and argument suggesting vastly different values for the property. The City's expert testified that the property's fair market value was $250,000; defendant's expert opined that the property was worth $1,544,000.

At the outset of his summation, defense counsel correctly advised the jury that "this case is not about the right to take the property[, . . .] [w]e're not here to re-litigate that issue," and reminded the jury that the issue for it to decide was the property's value. He then argued:

Now, you've heard a lot of testimony over the last several days, and when you look at the methods that the City utilized to value the property, while it's not about the right to take, their method is eminent domain abuse on its face. That the City's method to value this property was eminent domain abuse.

Defense counsel then in detail asserted what he contended was wrong with the City's approach in evaluating this property, and soon thereafter rhetorically asked, "Now, why do I say that it's eminent domain abuse?" With that the judge interrupted and the following colloquy occurred in front of the jury:

THE COURT: I want to say, Mr. Fernicola, I think you referred earlier to the method of taking --

MR. FERNICOLA: I said the method of valuation, I believe.

THE COURT: I think you said the method of taking. This case is not about how it was taken; it's about fair ...


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