TOWNSHIP OF MONTCLAIR VS. FRANK CERINO (L-4479-15, ESSEX COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2531-18T3
TOWNSHIP OF MONTCLAIR,
Plaintiff-Appellant,
v.
FRANK CERINO, MARY ANN
CERINO, and DECOZEN
CHRYLSER JEEP DODGE,
Defendants-Respondents,
and
NEW YORK COMMUNITY BANK,
Defendant.
_______________________________
Argued January 28, 2020 – Decided February 28, 2020
Before Judges Yannotti, Currier and Firko.
On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-4479-15.
Rudy S. Randazzo argued the cause for appellant (Riker
Danzig Scherer Hyland & Perretti, LLP, attorneys;
Stuart M. Lederman, of counsel and on the briefs; Rudy
S. Randazzo, on the briefs).
John J. Reilly argued the cause for respondents
(Bathgate Wegener & Wolf, PC, attorneys; John J.
Reilly, on the brief).
PER CURIAM
In this condemnation matter, which comes before us for the second time,
plaintiff Township of Montclair (Township) appeals from a February 5, 2019
order entered by the Law Division, dismissing its complaint with prejudice. For
the reasons that follow, we reverse and remand to the trial court for further
proceedings.
I.
The parties are familiar with the procedural history and facts of this case
and, therefore, they will not be repeated in detail here. 1 By July 13, 2016, the
Township took possession of the subject property owned by the Cerinos and
1
The chronology is set forth in this court's May 9, 2017 unpublished opinion,
in which we affirmed the trial court's determination and concluded there was no
dispute over the actual, physical property the Township sought to condemn for
municipal court and police department parking. Rather, we concluded the
dispute concerned the valuation of the subject property and the extent of any
damages which the prior trial judge preserved "by expressly authorizing the
commissioners to make 'a determination as to integration as disputed . . . and the
amount of severance damages, if any [. . . .]'" Twp. of Montclair v. Cerino, No.
A-0753-15 (App. Div. May 9, 2017) (slip op. at 18-19). We incorporate, by
reference, the facts stated in our prior opinion.
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converted it into a parking lot for its municipal court and police department.
The commissioners conducted a hearing to determine the amount of just
compensation owed to the Cerinos. At the commissioners' hearing, the
Township presented its November 2014 appraisal report as evidence of just
compensation. The Cerinos raised no objection to the November 2014
evaluation. The commissioners entered an award from which the Cerinos
appealed and demanded a jury trial.
Just prior to trial, the Cerinos filed a motion to exclude the Township's
2014 appraisal, arguing that the appraiser had valued the property eight months
before the date of taking. The Cerinos asserted the date of taking was June 25,
2015—the date the Township filed its complaint. Following oral argument, the
trial court found the correct date of valuation was June 25, 2015, when the action
was commenced, and that the Township did not value the taking using that date.
Additionally, the trial court found that because the Township's expert only
conducted a valuation as of November 2014, "[the Township] cannot determine
as . . . of the . . . date of the commencement of the action, in fact, the valuation
[of] just compensation, which is required by the statute -- and required . . . ."
The court stated:
That being the case, and in the fact that the [Township]
cannot comply with N.J.S.A. 20:3-30, and provide a
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just compensation determined as of the date of the
earliest in the event, which is . . . the date of the
commencement of the action, the [c]ourt does not have
jurisdiction to move the case forward, and, therefore,
the . . . case is dismissed.
The trial court granted the Cerinos' motion, and ruled that the Township had to
file a new complaint and start the process over.
On appeal, the Township argues that the trial court erred by holding that
its appraisal must coincide with the June 25, 2015 date of taking under the
Eminent Domain Act, 2 or alternatively, the trial date should have been adjourned
to provide the Township with an opportunity to update its report to conform with
the June 25, 2015 date of taking ruling.
II.
An appellate court reviews a trial court's evidentiary rulings for abuse of
discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007) (citing Green v. N.J.
Mfrs. Ins., 160 N.J. 480, 492 (1999)). Thus, an appellate court will not disturb
a trial court's evidentiary rulings unless they are "so wide of the mark that a
manifest denial of justice resulted." Green, 160 N.J. at 492 (quoting State v.
Carter, 91 N.J. 86, 106 (1982)). However, an appellate court will review
2
N.J.S.A. 20:3-1 to -50.
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questions of law de novo. Balsamides v. Protameen Chems., Inc., 160 N.J. 352,
372 (1999).
In a condemnation case, the State is required to pay just compensation to
the property owner for the property taken. State v. Caoili, 135 N.J. 252, 260
(1994). "Just compensation is 'the fair market value of the property as of the
date of the taking, determined by what a willing buyer and a willing seller would
agree to, neither being under any compulsion to act.'" Ibid. (quoting State v.
Silver, 92 N.J. 507, 513 (1983)). In condemnation cases,
[j]ust compensation shall be determined as of the date
of the earliest of the following events: (a) the date
possession of the property being condemned is taken by
the condemnor in whole or in part; (b) the date of the
commencement of the action; (c) the date on which
action is taken by the condemnor which substantially
affects the use and enjoyment of the property by the
condemnee; or (d) the date of the declaration of blight
by the governing body upon a report by a planning
board pursuant to section 38 of P.L. 1971, c. 361 (C.
20:3-38)[.]
[N.J.S.A. 20:3-30.]
"A condemnation action involves the issuance of two final judgments by
the Superior Court . . . ." Hous. Auth. of New Brunswick v. Suydam Inv'rs,
L.L.C., 177 N.J. 2, 16 (2003). Under N.J.S.A. 20:3-2(j), "judgment" means "the
adjudication by the court of any issue of fact or law, or both, arising under this
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act." The first judgment "declares that the condemnor is duly vested with and
has duly exercised its authority to acquire the property being condemned ," while
"[t]he other deals exclusively with the valuation of the condemned property."
Suydam Inv'rs, 177 N.J. at 16 (internal quotations and citations omitted). The
date of taking is a question of law for the trial court. N.J. Sports & Exposition
Auth. v. Giant Realty, 143 N.J. Super. 338, 346 (App. Div. 1976). We review
the trial court's decision as to the date of taking de novo. Ibid. The
determination of value is a question for the trier of fact. State v. 200 Route 17,
L.L.C., 421 N.J. Super. 168, 172-73 (App. Div. 2011).
In the trial court, the Township argued that the property should be valued
as of November 3, 2014 because at that time, the Township took certain actions
that substantially affected the use and enjoyment of the property. We note that
the Township is not pursuing that issue on appeal. Therefore, June 25, 2015 is
confirmed as the established date of taking. Instead, the Township now contends
that the court had jurisdiction to proceed with the trial, and asserts the court
should have ordered the parties to update their appraisal reports for trial . We
agree.
A motion in limine is a "pretrial request that certain inadmissible evidence
not be referred to or offered at trial." Seoung Ouk Cho v. Trinitas Reg'l Med.
A-2531-18T3
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Ctr., 443 N.J. Super. 461, 470 (App. Div. 2015) (quoting Black's Law Dictionary
791 (9th ed. 2009)). "Even when a limited issue is presented, '[o]ur courts
generally disfavor in limine rulings on evidence questions,' because the trial
provides a superior context for the consideration of such issues." Ibid.
(alteration in original) (quoting State v. Cordero, 438 N.J. Super. 472, 484-85
(App. Div. 2014)).
However, trial judges retain the discretion to grant evidentiary motions
when appropriate. Ibid. Trial judges are cautioned to use their discretion
sparingly, especially when a party seeks to exclude expert testimony because
such exclusion "has the concomitant effect of rendering a [party's] claim futile."
Id. at 470-71 (citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463-64 (App.
Div. 1988)).
A motion in limine "is not a summary judgment motion that happens to be
filed on the eve of trial." Id. at 471. Thus, "[w]hen granting a motion will result
in the dismissal of a plaintiff's case or the suppression of a defendant's defenses,
the motion is subject to Rule 4:46, the rule that governs summary judgment
motions[,]" which requires that motions be returnable at least thirty days prior
to the scheduled trial date, unless otherwise ordered by the court. Ibid.
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In the instant matter, we conclude that the trial court mistakenly exercised
its discretion by granting the Cerinos' motion in limine insofar as it barred the
Township from updating its November 2014 appraisal report to reflect the
judicially determined date of taking, June 25, 2015, and dismissing the
complaint with prejudice. See Brenman, 191 N.J. at 31; Cho, 443 N.J. Super. at
470-71.
Here, the court's ruling on the Cerino's motion resulted in the dismissal of
the Township's case. In barring the expert valuation report, the Township could
not support its case. As a result, the court dismissed its complaint with
prejudice. We conclude this was an abuse of discretion. Because a date of
taking had not been previously established, the prudent course would have been
for the court to permit a short adjournment for the updating of the valuation
report. Furthermore, there was no basis to dismiss the complaint with prejudice
because there was no adjudication of the merits. See R. 4:37-2(d).
We therefore reverse and vacate the February 5, 2019 order and reinstate
the Township's complaint. On remand, the court shall conduct a case
management conference within thirty days to set dates for service of an updated
appraisal report from the Township, utilizing the June 25, 2015 date of taking
established by the court, a rebuttal report, and set a new trial date.
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To the extent any arguments are not addressed herein, they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Reversed and remanded for further proceedings consistent with this
opinion. We do not retain jurisdiction.
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