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State v. Shalom Money Street, LLC

Superior Court of New Jersey, Appellate Division

June 25, 2013

STATE OF NEW JERSEY, by the COMMISSIONER OF TRANSPORTATION, Plaintiff-Appellant,
v.
SHALOM MONEY STREET, LLC, a Revoked New Jersey Limited Liability Company, Defendant-Respondent, and EDEN UNIQUE AUTOS, LLC, a New Jersey Limited Liability Company; BIROL BAUELVACI, d/b/a SELIN AUTO EXCHANGE; BOROUGH OF LODI, in the County of Bergen, a Municipal Corporation of New Jersey, Defendants.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 29, 2013

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2269-09.

Jeffrey S. Chiesa, Attorney General, attorney for appellant (Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief).

Respondent Shalom Money Street, LLC, has not filed a brief.

Before Judges Graves, Espinosa and Guadagno.

OPINION

ESPINOSA, J.A.D.

In this condemnation case, both the State and the property owner filed appeals from the commissioners' award fixing just compensation for a temporary taking. The issue before us is whether the trial court may reinstate the commissioners' award over the parties' objection after dismissing their appeals sua sponte. For the reasons that follow, we conclude the trial court may not do so.

Defendant, Shalom Money Street, LLC (Shalom)[1] owns a commercial property on Route 46 that measures in the Borough of Lodi 0.728 acre. In March 2009, the State filed a complaint in condemnation and declaration of taking for a temporary construction easement on Shalom's property to address the fact that certain driveways on Shalom's property did not conform to the state highway access code. The State estimated the amount of compensation due the property owner as $500 and deposited that amount with the court.

In May 2009, Shalom withdrew its objections to the State's right to take and a consent order was entered, stating the State had duly exercised its power of eminent domain as to the property and appointing three commissioners to fix just compensation for the taking.

Following a hearing, the commissioners issued a report in which they set the amount of just compensation as $9000. Both the State and Shalom filed notices of appeal from that award pursuant to Rule 4:73-6(a).

Shalom was permitted to retain an expert to value the taking. The State filed a motion in limine to bar Shalom's expert opinion. Noting that the question to be decided was the fair market value of the property actually taken, [2] the State argued that Shalom's expert had appraised the entire 0.728 acres of Shalom's property and not the property actually taken. Shalom also filed a motion to bar the State's expert opinion, contending that it was a net opinion.

The court granted both motions, and noted that the parties needed expert testimony to try "the only issue . . . the value of the easement taken" at the time of the taking. The State and Shalom jointly requested an adjournment of the trial for 100 days to permit each to retain experts and schedule depositions. The court denied the adjournment request and asked the parties to submit briefs on why it should not enter an order confirming the award of the condemnation commissioners.

Relying upon N.J.S.A. 20:3-12(h), both the State and Shalom argued that the commissioners' award can only become a final judgment if no appeal is taken. They argued further that, because the appeal is a trial de novo, N.J.S.A. 20:3-13(b), the appeal rendered the commissioners' award void. Both parties contended that, since the award ceased to exist once their appeals were filed, the court could not reinstate the award as a final judgment. Both the State and Shalom submitted that, without the jury trial ...


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