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City of Jersey City v. Washington Commons


June 6, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1957-11.

Per curiam.


Argued March 26, 2012

Before Judges Alvarez and Skillman.

This is an appeal from a final judgment entered September 7, 2011, awarding title to seven condominium units at 311 Washington Street, Jersey City, to plaintiff, the City of Jersey City. Defendant Washington Commons appeals, and we affirm.

By way of preamble, we note that the dispute commenced in 2004, when Washington Commons obtained variances from the City of Jersey City Board of Adjustment (Board) for the construction of a sixty-eight-apartment residential building. The final plan approved by the Board included seven units to be conveyed to Jersey City as rental units for "low and/or moderate income certified artists." The Board's memorializing resolution provided that the conveyance would be made "in accordance with such terms and conditions as are negotiated by [Washington Commons] and the City." Years of litigation have followed, including two appeals, regarding the price of the seven units.*fn1

Since the beginning, Jersey City has contended that Washington Commons agreed to convey the seven artists' units for $1 each in exchange for the right to add nine units to the project. Washington Commons, however, claims the agreement was that the units would be conveyed at cost, or $463,235.29 per unit. At least twice in the Law Division and, certainly, twice on appeal, it has been stated that the Board's November 8, 2007 clarifying resolution settled the issue of price at $1 per unit, and that the Board's decision was neither arbitrary, capricious, nor unreasonable. Washington Commons, supra, 416 N.J. Super. at 563 (citing Washington Commons, LLC, supra, slip op. at 10).

As we have previously explained, Washington Commons cannot relitigate the issue of price per unit because of the doctrine of the law of the case. Ibid. The doctrine is applied more strictly when the prior decision was rendered by an appellate court. Id. at 564 (quoting SMB Assocs. (Anchoring Point) v. N.J. Dep't of Envtl. Prot., 264 N.J. Super. 38, 60 (App. Div. 1993), aff'd, 137 N.J. 58 (1994)).

In the last round of litigation, Washington Commons prevailed by obtaining a reversal of the trial court's order requiring conveyance of the units to Jersey City. The reversal, however, was due solely to the fact that no counterclaim had been filed by Jersey City enabling it to obtain affirmative relief by way of a judgment compelling Washington Commons to execute deeds. See id. at 561-62. The reversal in no way affected the prior decisions finding that the price per unit was $1.

This proceeding, involving the same parties and precisely the same issues, was initiated by Jersey City in response to the reversal. Jersey City's complaint only seeks the affirmative relief it was previously awarded - the conveyance by Washington Commons of fee simple absolute title to the seven still vacant artist units to the City for $1.

On July 8, 2011, at the first hearing in this case, the trial judge granted Jersey City's motion to convert the action to a summary one pursuant to Rule 4:67-2(b), and denied Washington Commons' request for discovery. The trial judge did so because she interpreted our prior decisions to mean that the only affirmative relief that could be granted was the conveyance of the property, because all other factual and legal issues had been previously decided. She specifically relied upon the law of the case doctrine in reaching her conclusions: "[E]ven limited discovery . . . would . . . be a disservice to the interest and the expediency that [t]he [c]court favors by unnecessarily prolonging litigation that seems well-settled . . . ." The judge went on to state the obvious, that "little actually [remained] in dispute."

The judgment compelling conveyance to Jersey City issued after a brief hearing on August 25, 2011, during the course of which Washington Commons called two witnesses. The first witness was Clare Davis, a Jersey City professional planner for seven years. She had no knowledge regarding the negotiations over the price of the seven units. The second witness was Neil Sorrentino, a managing partner of Washington Commons, who adamantly restated the position that Washington Commons would never have agreed to convey the units at issue for $1 each. When asked if there were any negotiations regarding the terms of conveyance other than cost, Sorrentino answered in the negative.

Now on appeal, Washington Commons asserts the following points of error:



THE COURT BELOW VIOLATED APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, TAKING OF PROPERTY WITHOUT JUST COMPENSATION AND CONFRONTATION CONFERRED BY THE STATE AND FEDERAL CONSTITUTIONS IN FAILING TO ALLOW ADEQUATE DISCOVERY ON ISSUES OF MERIT Despite contending that the trial judge erred by failing to allow discovery, Washington Commons does not suggest any benefit that could have accrued from discovery or any prejudice that resulted from the failure to permit it. Since the principal point in dispute is the price per unit, an issue long ago laid to rest, it is not surprising that Washington Commons cannot articulate any reason discovery was necessary. The opportunity and need for discovery disappeared once the price was fixed at $1 per unit. The trial judge's decision is therefore unimpeachable.

Washington Commons also asserts the failure to permit discovery resulted in an unconstitutional taking without just compensation. This argument also lacks merit. The price per unit was long ago fixed at $1. Discovery would not have changed that essential fact, and that fact was the product of multiple proceedings in which Washington Commons participated. There simply is no logical connection between the court's refusal to allow discovery and the concept of an unconstitutional taking.

The law of the case, not to mention res judicata, effectively bars defendant from pursuing the matter further. See Walker v. Choudhary, 425 N.J. Super. 135, 150-51 (App. Div. 2012).


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