On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2729-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Axelrad and Fisher.
In this condemnation appeal, defendant Anthony C. Catanzaro (defendant), the property owner, argues he was denied a fair trial because a juror failed to disclose her relationship with his stepson. He also argues the jury's verdict represents an improper averaging of the parties' competing appraisals rather than an actual determination of the property's value. We reject these arguments and affirm.
Plaintiff Borough of Cliffside Park filed this action seeking to condemn real property owned by defendant. The property consisted of a 2,643 square foot lot and a 4,488 square foot building with a restaurant on the first floor and residential apartments on the second and third floors. The court appointed commissioners made a determination of the property's value, which Cliffside Park rejected. Thereafter, Judge Menelaos Toskos presided over a four-day jury trial, at the conclusion of which the jury awarded defendant $850,000. Defendant unsuccessfully moved for a new trial or additur, and thereafter filed this timely appeal.
The trial predominantly consisted of the presentation of the opinions of the parties' appraisers. Robert McNerney, Cliffside Park's expert, valued the property at $590,000, and Donald Helmstetter, defendant's expert, valued the property at $1,225,000. At trial, McNerney explained that he analyzed comparable sales of four other similar multiple-use commercial properties. He also considered the property's fixtures and calculated the potential income an owner would expect to receive from the rental of the apartments and the use of the restaurant. Helmstetter testified that he used the direct sales and income approaches to establish a base value of $1,100,000 for the property's status as a "general commercial mixed use building." He then added $125,000 to account for the additional value attributable to special restaurant-related improvements, such as the "extensive restaurant plumbing and drainage" to reach his final figure of $1,225,000. Defendant also presented extensive testimony about the value of restaurant-related renovations made to the property by defendant in the 1980's.
Defendant first argues he is entitled to a new trial because, in his view, the jury did not weigh the evidence but simply took an average of the values placed on the property by the parties' experts. He bases this contention not only on the fact that an averaging of the appraisals is almost precisely what the jury awarded, but also because the jury deliberated for only approximately thirty minutes, which would suggest the jury did not take the time to adequately weigh the evidence.
Jury verdicts should be set aside "only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Clear injustice exists "when upon examination the verdict is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it is the result of mistake, passion, prejudice or partiality...." Klawitter v. City of Trenton, 395 N.J. Super. 302, 325 (App. Div. 2007) (quoting Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594 (1965)). In other words, "a jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)). When reviewing a motion for a new trial, the court is obligated to accept all evidence supporting the verdict as true and draw all reasonable inferences in favor of upholding the verdict. Boryszewski, supra, 380 N.J. Super. at 391.
In this setting, we recently held that "averaging, whether of appraisals or comparable sales, is not an appropriate methodology for assessing divergent values." Pansini Custom Design Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 146 (App. Div. 2009). There, the judge, as the finder of fact, after excluding high and low comparable sales, averaged the values of the remaining comparables to arrive at a fair market value. Id. at 139. In disapproving this methodology, we held that "[p]roperties are not fungible[,] [and] [e]ven with adjustments during the appraisal process, there are sufficient differences that must be weighed and considered by the fact- finder in addressing the ultimate issue in dispute." Id. at 146. We also found averaging in this setting to be pernicious because it could result in appraisals slanted to the extreme. Averaging will generate appraisals that will intentionally distort and skew the values to insure a high or low number without concern that the fact finder must resolve the issue with a careful analysis of data that may result in adoption of one appraisal figure over another. [Id. at 146-47.]
However, Pansini does not require reversal here. There, as we have noted, it was clear the finder of fact had used averaging in obtaining a value. Here, there is no evidence that the jury averaged the appraisals other than what the verdict might superficially suggest.
A deeper examination of the record, however, reveals that the jury may not have averaged the expert's opinions. For example, McNerney provided four comparable sales: a property with a lot "almost identical to the subject property's lot size" that sold for $825,000; a second property "very similar to the subject" with a building "built approximately the same time as the subject" that sold for $485,000; a third property in Lyndhurst that sold for $950,000; and a fourth property in Hackensack that was "[b]uilt approximately the same time as the subject property" that sold for $585,000. To some degree or ...