State of New Jersey, Etc. v. 1.581-Acres of Land in the Borough of Point Pleasant Beach ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-1761-22
STATE OF NEW JERSEY, by the
DEPARTMENT OF
ENVIRONMENTAL PROTECTION,
Plaintiff-Appellant,
v.
1.581-ACRES OF LAND IN THE
BOROUGH OF POINT PLEASANT
BEACH, OCEAN COUNTY, NEW
JERSEY, and BAY POINTE DUNES
HOMEOWNERS ASSOCIATION,
INC., a New Jersey Corporation, Fee
Owner,
Defendants-Respondents.
_______________________________
Submitted October 9, 2024 – Decided November 4, 2024
Before Judges Mayer, Rose and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2898-17.
Rutter & Roy, LLP, attorneys for appellant (Brian W.
Keatts, on the briefs).
Bathgate, Wegener & Wolf, attorneys for respondent
Bay Point Dunes Homeowners Association, Inc. (Peter
H. Wegener, on the brief).
PER CURIAM
Plaintiff New Jersey Department of Environmental Protection
(Department) appeals from a September 27, 2022 jury verdict awarding
$964,000 to defendant Bay Pointe Dunes Homeowners Association, Inc. (Bay
Pointe) as just compensation for the Department's taking of 1.581 acres of
beachfront property owned by Bay Pointe (Property). The Department also
appeals from a January 4, 2023 order denying its motion for a new trial or,
alternatively, remittitur. We affirm both orders on appeal.
We recite the facts from the trial record. Bay Pointe owns property in
Point Pleasant Beach, known as Lots 2, 3, and 4 in Block 179.04. The
Department sought to construct a dune and berm system to protect coastal
communities from storm damage (Project). To complete the Project, the
Department required a Storm Damage Reduction Easement (SDRE) across the
Property.
The Department exercised the power of eminent domain and filed a
condemnation action to acquire the Property to complete the Project. The parties
A-1761-22
2
agreed the valuation date for the Department's taking of the Property was
October 16, 2017.
As of the taking date, there were no structures on the Property. The parties
acknowledged the Property was once a privately owned beach. However, the
Department used federal funds for the Project, the parties acknowledged the
Property allowed unrestricted beach accessible to the general public.
The Project included construction of a twenty-two-foot dune and
extension of existing berms. According to the Department, the Project would
create 42,000 square feet of additional beach area.1 Further, under the Project,
the Department would renourish the area, if needed, every four years at no cost
to Bay Pointe.
Because the parties did not agree on the amount of compensation due Bay
Pointe as a result of the Department's taking of the Property, the matter was
scheduled for a trial. Prior to trial, the parties exchanged expert appraisal reports
proffering divergent opinions regarding the value, or "just compensation," to be
paid to Bay Pointe. In anticipation of trial, the Department retained Donald
1
The Department proffered evidence that the Property's usable beach area
would increase by thirty-eight percent upon the Project's completion.
A-1761-22
3
Moliver, Ph.D., as its expert appraiser and Bay Pointe retained Robert Gagliano
as its expert appraiser.
Prior to trial, the Department moved in limine to preclude Gagliano's use
of an "Easement Impact Chart" (Chart). In partially granting the Department's
motion, the judge prohibited Gagliano from referring to any outside expert
resources in generating the Chart. Further, the judge allowed Gagliano to use
the Chart so long as Gagliano did not mention the name of the Chart's original
creator or the creator's article explaining the purpose of the Chart. The judge
also permitted Gagliano to tell the jury the Chart reflected his methodology in
arriving at an award of just compensation.
The jury heard testimony from September 20, 2022 through September
27, 2022. In addition to the expert appraisal testimony, the jury heard testimony
from Dr. Stewart Farrell, the Department's expert in marine science and coastal
research. Dr. Farrell described the benefits to be conferred on the Property as a
result of the Project. Specifically, Dr. Farrell explained the Project's enhanced
storm damage protection for the area.
The Department also presented testimony from Keith Watson, who
worked at the United States Army Corps of Engineers and managed the Project.
Watson testified the SDRE required public access to the Property based on the
A-1761-22
4
use of federal funds to complete the Project. Watson agreed the SDRE was a
"perpetual and assignable easement . . . to . . . operate, maintain, . . . and replace
a public beach." Watson told the jury the "perpetual" language meant the
Property was "subject to public use and access in perpetuity."
The Department also offered testimony from William Dixon, who was the
director of the Department's Division of Coastal Engineering. Dixon explained
the SDRE allowed Bay Pointe to operate the beach subject to the right of public
access. According to Dixon, Bay Pointe could not profit from any fees collected
for the public's use of the Property.
In support of its valuation for the Property, the Department presented
Moliver's appraisal testimony. Moliver admitted the Property's only reasonable
use after the Department's taking was as a public beach, and the Property lacked
any economic use "on a commercial basis." Further, before the taking, Moliver
agreed Bay Pointe "could always sell the [P]roperty for a private use."
According to Moliver, the Property's market value prior to the taking was
$880,000, and its market value after the taking, with mitigation,2 was $923,700.
2
In his appraisal report, Moliver explained mitigation "consider[ed] the added
benefit of the expanded beach area that [would] be constructed as part of the
Project and a Tidelands license that the owner may obtain from the [S]tate to
use the new beach area for its operation."
A-1761-22
5
Using these values, Moliver concluded $6,300 represented just compensation
for the Property.
In support of its valuation for the Property, Bay Pointe presented
Gagliano's testimony. In arriving at his calculation of just compensation,
Gagliano prepared an appraisal report and Chart.3 According to Gagliano, the
Property lost ninety-five percent of its value as a result of the Project.
Specifically, Gagliano testified the market value of the Property before the
taking was $1,530,000, and the market value after the taking was $80,000. Thus,
he calculated $1,450,000 as just compensation for the Department's taking of
the Property.
After considering the testimony, reviewing the documentary evidence,
and hearing the judge's instructions, the jury awarded the sum of $964,000 to
Bay Pointe representing just compensation for the Property.
Three weeks later, the Department filed a motion for a new trial or,
alternatively, remittitur. In a January 4, 2023 order, the judge denied the motion
in its entirety.
The Department appeals from the jury's awarding $964,000 as just
compensation for its taking of the Property. Specifically, the Department argues
3
The Chart was the subject of the Department's in limine motion.
A-1761-22
6
the judge used a confusing jury verdict sheet and provided flawed jury
instructions. It further contends the judge made incorrect evidentiary rulings
during the trial. The Department also asserts comments by Bay Pointe's counsel
during summation were improper and inflammatory. Based on these asserted
trial missteps, the Department contends the judge erred in denying its motion
for a new trial or remittitur. We reject these arguments.
I.
The Department first asserts the judge abused his discretion in allowing
Gagliano to use the Chart as part of his testimony. It argues the Chart should
have been excluded under N.J.R.E. 808 and James v. Ruiz, 440 N.J. Super. 45(App. Div. 2015), because the Chart "was taken from a prior article by a well-
known appraiser, Donnie Sherwood," who did not testify at trial.
The Department claimed Bay Pointe's counsel "inflict[ed] extreme
prejudice on the Department when he told the jury, repeatedly, that . . .
Gagliano's 'Easement Impact' [C]hart was utilized by other appraisers." The
Department noted Bay Pointe's counsel "told the jury that [the] [C]hart, used by
other appraisers, supported . . . Gagliano's methodology–and that the other
appraisers' opinions were 'consistent' with . . . Gagliano's."
A-1761-22
7
In denying the new trial motion on this issue, the judge found the
Department's reliance on James was misplaced. As the judge explained, James
precluded a testifying expert from discussing the findings or opinions of a no n-
testifying expert to bolster the testifying witness' credibility. The judge, relying
on his in limine ruling, stated he "act[ed] in an abundance of caution
because . . . Bay Pointe[] was not seeking to bootstrap any opinion per se of that
non-testifying expert on the ultimate issue. [The Chart] was a part of the
methodology used by [Gagliano]."
We cite the well-settled law governing our review of a trial judge's
disposition on a motion for a new trial. "The standard of review on appeal from
decisions on motions for a new trial is the same as that governing the trial
judge—whether there was a miscarriage of justice under the law." Hayes v.
Delamotte, 231 N.J. 373, 386 (2018) (quoting Risko v. Thompson Muller Auto.
Grp., Inc., 206 N.J. 506, 522 (2011)). "[A] 'miscarriage of justice' can arise
when there is a 'manifest lack of inherently credible evidence to support the
finding,' when there has been an 'obvious overlooking or under-valuation of
crucial evidence,' or when the case culminates in 'a clearly unjust result.'" Ibid.,
(quoting Risko, 206 N.J. at 521).
A-1761-22
8
A "jury verdict is entitled to considerable deference." Risko, 206 N.J. at
521. "On a motion for a new trial, all evidence supporting the verdict must be
accepted as true, and all reasonable inferences must be drawn in favor of
upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App.
Div. 2005). In reviewing a decision on a motion for a new trial, we give "due
regard to the opportunity of the jury to pass upon the credibility of the
witnesses," R. 4:49-1(a), and "'due deference' to the trial court's 'feel of the
case,'" Risko, 206 N.J. at 522 (quoting Jastram v. Kruse, 197 N.J. 216, 230
(2008)).
Additionally, we accord substantial deference to a trial judge's evidentiary
rulings. State v. Morton, 155 N.J. 383, 453 (1998). We review a trial judge's
evidentiary rulings, including rulings on the admissibility of expert testimony ,
for abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 371-72 (2011). An abuse of discretion arises when a "decision [was] made
without a rational explanation, inexplicably departed from established policies,
or rested on an impermissible basis." United States by U.S. Dep't of Agric. v.
Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002)). "[W]e will reverse an evidentiary
ruling only if it 'was so wide off the mark that a manifest denial of justice
A-1761-22
9
resulted.'" Griffin v. City of East Orange, 225 N.J. 400, 413 (2016) (quoting
Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).
Here, the judge granted the Department's in limine motion and prohibited
both appraisal experts from referencing any specific outside sources and limited
the experts to stating that appraisers may consider outside resources. As the
judge explained, "appraisers . . . rely on outside sources to help them make their
determinations. They just can't . . . reference that study or the author by name
or try[] to bootstrap that opinion to bolster their own." The judge noted he
allowed Gagliano to adopt the Chart as his own and inform the jury he used the
Chart to arrive at the amount of just compensation provided Gagliano did not
mention the Chart's source. While the judge submitted Gagliano "may be guilty
of plagiarizing" by adopting the Chart as his own, the judge concluded
Gagliano's adoption of the Chart without referencing the source of the Chart did
not run afoul of our decision in James.
Consistent with the judge's in limine ruling, Gagliano did not mention
Sherwood or refer to Sherwood's article during his trial testimony. Gagliano
told the jury that he used the Chart as a "tool" to arrive at a value for the Property.
Specifically, Gagliano relied on the Chart to explain the impact of the SDRE on
Bay Pointe's ability to use the remaining Property after the taking. He also stated
A-1761-22
10
appraisers used charts as a common method of valuing easements. Based on the
foregoing, the jury had no reason to disbelieve Gagliano's Chart was his own.
Thus, Bay Pointe did not violate the judge's in limine ruling warranting a new
trial.
Moreover, we agree with the judge that the Department's reliance on
N.J.R.E. 808 and James is misplaced. Neither N.J.R.E. 808 nor James precluded
Gagliano's use of the Chart.
N.J.R.E. 808 provides:
Expert opinion that is included in an admissible hearsay
statement shall be excluded if the declarant has not been
produced as a witness unless the court finds that the
circumstances involved in rendering the opinion tend to
establish its trustworthiness. Factors to consider
include the motive, duty, and interest of the declarant,
whether litigation was contemplated by the declarant,
the complexity of the subject matter, and the likelihood
of accuracy of the opinion.
Because Gagliano's expert report and Chart did not refer to Sherwood or
Sherwood's opinions, the jury did not hear any information proffered by a
declarant who was not a testifying witness at trial. Therefore, the judge's in
limine ruling comported with N.J.R.E. 808.
Nor are the facts in this case similar to those in James. In James, a party
attempted to introduce through the "back door" the opinion of a non-testifying
A-1761-22
11
expert. 440 N.J. Super. at 72. We held a "testifying expert may not serve as an
improper conduit for substantive declarations (whether they be objective or
subjective in nature) by a non-testifying expert source." Id. at 66.
Here, Gagliano did not testify as to another expert's opinion regarding the
value of the Property. In reviewing the trial transcripts, Gagliano never referred
to Sherwood, Sherwood's chart, or Sherwood's article. Consistent with the
judge's in limine ruling, the jury heard only that Gagliano had experience as a
real estate appraiser and used the Chart as a tool to aid jurors in understanding
how he arrived at his valuation opinion. On this record, the judge's admission
of Gagliano's Chart did not result in a miscarriage of justice warranting a new
trial.
II.
We next consider the Department's argument that the jury verdict sheet
was confusing and prejudicial warranting a new trial. We disagree.
The Department argues the verdict sheet improperly asked the jurors to
perform additional calculations to arrive at the amount of just compensation.
The Department also asserts the form of the jury verdict sheet had not been used
in other condemnation actions in Ocean County. The Department claims the
verdict sheet should have been limited to one or three inquiries: the amount of
A-1761-22
12
just compensation, or the market value of the Property before taking, the market
value of the Property after the taking, and the amount of just compensation.
In rejecting the Department's new trial motion on this issue, the judge
concluded the jury verdict sheet was not confusing or prejudicial. The judge
explained the jury verdict sheet mirrored the verdict sheet used in Borough of
Harvey Cedars v. Karan, 214 N.J. 384 (2013). In following the Court's decision
in Karan, the judge noted the jury in this case had to "consider and discount . . .
the value of the benefit that was being bestowed by the State on the land[]owner
to the [P]roperty in question."
Unlike most condemnation matters, where there is no benefit to the
property owner after the taking, Bay Pointe benefitted from the Project. Based
on Bay Pointe's receipt of a benefit after the taking, the judge concluded verdict
sheets used in traditional condemnation actions were not suited to the facts in
this matter. Further, the judge stated he reviewed the verdict sheet with the jury
before their deliberations and "there was no indication from the jury that they
did not understand what their task was before them or in the verdict sheet
specifically."
"Because a verdict sheet constitutes part of the trial court's direction to the
jury, defects in the verdict sheet are reviewed on appeal under the same 'unjust
A-1761-22
13
result' standard of Rule 2:10-2 that governs errors in the jury charge." State v.
Galicia, 210 N.J. 364, 388 (2012). However, "[w]hen there is an error in a
verdict sheet, but the trial court's charge has clarified the legal standard for the
jury to follow, the error may be deemed harmless." Id. at 387.
"In examining whether mistakes made in jury instructions require
intervention, a court must determine whether the charge, 'considered as a whole,
adequately conveys the law and is unlikely to confuse or mislead the jury, even
though part of the charge, standing alone, might be incorrect.'" Maleki v.
Atlantic Gastroenterology Assocs., P.A. 407 N.J. Super. 123, 128 (App. Div.
2009) (quoting Fischer v. Canario, 143 N.J. 235, 254 (1996)). "This same
approach is taken with regard to mistakes in a jury verdict sheet." Ibid. (citing
Mogull v. CB Com. Real Est. Grp., Inc., 162 N.J. 449, 467-68 (2000)).
Similar to the facts in this case, the Karan jury had to determine the value
of a partial taking of land for the purpose of constructing a dune for storm
protection. 214 N.J. at 388. In arriving at just compensation for a public project
based on a partial taking of property, the Karan Court held a jury must consider
any benefit received by the property owner after the taking. Id. at 389.
Specifically, the Court stated:
[W]hen a public project requires the partial taking of
property, "just compensation" to the owner must be
A-1761-22
14
based on a consideration of all relevant, reasonably
calculable, and non-conjectural factors that either
decrease or increase the value of the remaining
property. In a partial-takings case, homeowners are
entitled to the fair market value of their loss, not to a
windfall, not to a pay out that disregards the home's
enhanced value resulting from a public project. To
calculate that loss, we must look to the difference
between the fair market value of the property before the
partial taking and after the taking. In determining
damages, the trial court did not permit the jury to
consider that the dune would likely spare the Karans'
home from total destruction in certain fierce storms and
from other damage in lesser storms. A formula—as
used by the trial court and Appellate Division—that
does not permit consideration of the quantifiable
benefits of a public project that increase the value of
the remaining property in a partial-takings case will
lead to a compensation award that does not reflect the
owner's true loss. Compensation in a partial-takings
case must be "just" to both the landowner and the
public. United States v. Commodities Trading Corp.,
339 U.S. 121, 123 . . . (1950). A fair market value
approach best achieves that goal.
[Ibid.]
Here, the verdict sheet asked the jury to answer the following
interrogatories:
A) What was the market value of the subject property
before the taking?
....
B) What is the market value of the property interest
taken by the State of New Jersey?
A-1761-22
15
....
C) What is the market value of the benefit to the
remaining property interest?
....
D) What is the market value of the subject property
after the taking?
....
E) What is the amount of just compensation to be paid
to the property owner?
The Department objected to the verdict sheet because it differed from
verdict sheets used in other Ocean County condemnation cases. Because the
Department objected, we review for harmless error. Under that standard, we
may reverse if we find "a reasonable doubt as to whether [the error] le d the jury
to a verdict it otherwise might not have reached." Willner v. Vertical Reality,
Inc., 235 N.J. 65, 79 (2018) (alteration in original) (quoting State v. Lazo, 209
N.J. 9, 26 (2012)).
Having reviewed the record as a whole, including the judge's instructions
to the jury, we are satisfied the judge did not err in submitting the verdict sheet
to the jury as worded. The judge explained the jury had to value the interest
A-1761-22
16
taken and then offset that value by any benefits bestowed on the Property to
arrive at a just compensation value.
Here, the verdict sheet amply explained the jury's task for calculating the
value of the Property taken and offsetting that value by any benefit conferred on
the Property as a result of the taking. While the jury heard "wildly varying
views" from the valuation experts, we discern no error in the jury's performance
of the required calculations reflected in the jury verdict sheet to arrive at an
award of just compensation based on the evidence.
Additionally, we are satisfied the jury verdict sheet was not confusing or
prejudicial. The verdict sheet asked the jurors to determine "the market value
of the property interest taken by the State of New Jersey" and "the market value
of the benefit to the remaining property interest." Those were the exact
calculations the jury undertook to determine the amount of just compensation.
Further, the Department's contention that the jury was confused by the
wording in the verdict sheet is speculative. After considering the experts'
testimony, the jurors unanimously determined the market value of the Property
before the taking was $1,205,000–an amount exactly in between Gagliano's
appraisal value of $1,530,000 and Moliver's appraisal value of $880,000.
A-1761-22
17
Based on the trial testimony, the jurors then determined the market value
of the Property interest taken by the Department was $1,084,500–which
represented ninety percent of the market value of the Property before the taking.
Consistent with the jury verdict sheet and the judge's instructions, the jury
next determined the market value of the benefit conferred to Bay Pointe's
remaining Property interest after the partial taking. The jury arrived at a benefit
value of $120,500, which represented ten percent of the Property's market value
before the taking.
Next, the jurors determined the market value of the Property after the
taking was $241,000, which, as the verdict sheet instructed, was calculated by
using the market value of the Property before the taking, subtracting the market
value of the Property interest taken by the Department, and then adding the
market value of the benefit to the remaining Property interest: $1,205,000 -
$1,084,500 + $120,500 = $241,000.
After performing these calculations, the jurors arrived at a value for just
compensation. Consistent with the verdict sheet and judge's jury instructions,
the jury took the market value of the Property before the taking and subtracted
the market value of the Property after the taking ($1,205,000 - $241,000) and
determined $964,000 represented just compensation.
A-1761-22
18
On this record, we are satisfied the verdict sheet was straightforward, and
the jury evinced no confusion regarding its task. The jurors did as the verdict
sheet instructed to determine the award of just compensation. By showing their
mathematical calculations, the jurors clearly understood the calculations they
were required to perform and correctly determined the amount of just
compensation. Because the jury verdict sheet was neither confusing nor
prejudicial, the judge properly denied the Department's motion for a new trial.
III.
We next consider the Department's argument that the judge's jury
instructions were flawed and warranted a new trial. The Department claims the
judge erred in adopting a new jury charge, not based on the model jury charge,
by including a definition of "easement." The Department also argues the judge
erred by declining to include the Department's requested supplemental charge
language. Again, we disagree.
The Department claimed the jury instructions proposed by the judge were
never used in any other condemnation cases and, therefore, were improper. In
response, the judge noted there were no model jury instructions concerning a
partial taking of property resulting in the extremely limited use of the remaining
property, as in this case.
A-1761-22
19
Regarding the Department's objection to defining the term "easement" in
the jury instruction, the judge explained, "the instruction that was given to the
jury was sound and in accordance with the law."
The judge further stated both parties presented suggested supplemental
jury instructions to be included as part of the charge, and he made the final
determination whether to accept or reject the parties' suggestions. The judge
concluded there were no "errors in . . . the instructions that were given to the
jury." Thus, the judge rejected the Department's argument that the jury charge
was flawed and warranted a new trial.
We review a trial court's jury instructions de novo. Fowler v. Akzo Nobel
Chems., Inc., 251 N.J. 300, 323 (2022). Appropriate and proper jury instructions
are essential for a fair trial. Prioleau v. Kentucky Fried Chicken, Inc., 223 N.J.
245, 256 (2015). "Nonetheless, not every improper jury charge warrants
reversal and a new trial." Id. at 257.
A jury charge must be read as a whole, not just the challenged portions,
to determine its overall effect. Viscik v. Fowler Equip. Co., 173 N.J. 1, 18
(2002). "There is no reversible error 'where the charge, considered as a whole,
adequately conveys the law and is unlikely to confuse or mislead the jury, even
A-1761-22
20
though part of the charge, standing alone, might be incorrect.'" Mogull, 162 N.J.
at 464 (quoting Fischer, 143 N.J. at 235).
A. Easement Instruction
The Department claims the judge's easement instruction was unclear and
prejudicial. The judge gave the following instruction to the jury: "An easement
constitutes an interest in the land, and the owner must be compensated for the
value of the easement taken from it." The Department argues the jury charge
used in a different condemnation case involving a beach club in Ocean County
lacked any similar language and, therefore, the charge in this case was improper.
During the colloquy with counsel regarding the proposed easement
instruction, the judge asked the Department, "[W]hat is it that's objectionable?
[I]t's black letter law as to what an easement is. I don't see anything
objectionable in it." The Department's attorney responded that including the
definition of an easement could "lead[] to a double recovery" and suggested the
jury might award separate money for an easement in addition to just
compensation for the partial taking. Ultimately, the judge declined to alter the
easement language in the jury charge because he determined the language
reflected Moliver's testimony during the trial. The judge agreed with defense
A-1761-22
21
counsel that the easement language in the jury charge was "clearly the evidence
in the case and [was] clearly the law."
Having reviewed the jury charge as a whole, we are satisfied the
Department's concerns regarding the jury charge were unfounded. The easement
language in the judge's recitation of the jury instruction was consistent with case
law and the evidence presented during the trial. Moreover, upon reviewing the
jury instructions and the jury verdict sheet, the easement instruction did not lead
the jury to award a double recovery or impermissibly compound the awarded
damages.
B. The Department's Proposed Supplemental Jury Instructions
The Department further contends the judge erred in rejecting its proposed
supplemental jury charges. The Department's proposed supplemental charges
included language taken from United States Supreme Court and New Jersey
cases. The Department argued its "supplemental charges were simply
statements of law that should have been included, and the Department was
prejudiced by their absence," warranting a new trial.
In reviewing the requested supplemental jury instructions, the judge
denied both parties' proposed charges. The judge concluded the parties'
language was "surplusage and . . . defined in the charge as presently constituted
A-1761-22
22
in terms of market value, just compensation. So . . . it's . . . saying the same
thing a different way."
Having reviewed the transcript of the charge conference and the jury
instructions provided by the judge, we are satisfied the charge, read as a whole,
was clear, accurate, and fairly set forth the controlling principles of law. Thus,
the judge did not abuse his discretion in denying the parties' proposed
supplemental jury instructions. We discern no error in the judge's jury
instructions capable of producing an unjust result or prejudicing the Department
so as to warrant a new trial.
IV.
The Department next argues the judge erred in admitting in evidence
Exhibit D-9A, a one-page excerpt from the SDRE. We decline to address the
Department's argument on this point because it failed to adequately brief the
issue or cite any supporting legal authority. See Weiss v. Cedar Park Cemetery,
240 N.J. Super. 86, 102 (App. Div. 1990) ("The failure to adequately brief the
issues requires [the claim] to be dismissed as waived."). See also State v. Hild,
148 N.J. Super. 294, 296 (App. Div. 1977) (stating the "absence of any reference
to the law" in a brief "suggests a like paucity of authority helpful to the party.").
A-1761-22
23
Even if we were to consider the Department's arguments on this point, we
review a judge's evidentiary rulings for abuse of discretion. See Est. of Hanges
v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 383-84 (2010). We will uphold
a trial court's evidentiary rulings absent a clear error in judgment or rulings so
wide of the mark they result in a manifest denial of justice. See Hrymoc v.
Ethicon, Inc., 254 N.J. 446, 463 (2023).
We discern no abuse of discretion in the judge's decision to admit both the
entire SDRE as reflected in Exhibit D-9 and the excerpt from the SDRE as
reflected in Exhibit D-9A. In requesting the admission of Exhibit D-9A as
evidence, defense counsel simply sought to highlight the provision in the SDRE
relevant to the issue in this case. Thus, we discern nothing improper in the
judge's evidentiary ruling allowing Exhibit D-9A to be admitted as evidence.
V.
The Department next argues Bay Pointe's counsel made improper
references during closing argument. Specifically, the Department argues
defense counsel's references to Supreme Court and other court decisions were
prejudicial and resulted in a miscarriage of justice requiring a new trial. Again,
we decline to address the Department's arguments on this point because the
A-1761-22
24
Department failed to adequately brief the issue and provided no legal authority
in support of its argument.
Even if we were to consider the Department's arguments on this issue, the
references by Bay Pointe's counsel to case law during summation were simply
legal arguments. The judge instructed the jury that comments by counsel during
summation were not evidence. The jury is presumed to have understood and
followed that instruction. State v. Gandhi, 201 N.J. 161, 197 (2010).
Based on the judge's express instruction to the jury that statements by
counsel during summation were not evidence, we are satisfied the judge properly
denied the Department's request for a new trial based on defense counsel's
citation to case law during summation.
VI.
We next consider the Department's contention that Bay Pointe's attorney
made misleading and inflammatory comments during summation warranting a
new trial. The Department asserts defense counsel disparaged the government
and distorted the facts and evidence during closing argument. We disagree.
"As a general matter, 'counsel is allowed broad latitude in summation
[and] counsel may draw conclusions even if the inferences that the jury is asked
to make are improbable, perhaps illogical, erroneous or even absurd.'" Bender
A-1761-22
25
v. Adelson, 187 N.J. 411, 431 (2006) (alteration in original) (quoting Colucci v.
Oppenheim, 326 N.J. Super. 166, 177 (App. Div. 1999)). However,
"[s]ummation commentary . . . must be based in truth, and counsel may not
'misstate the evidence nor distort the factual picture.'" Ibid. If comments during
summation stray from these limits and are so prejudicial as to clearly and
convincingly constitute a miscarriage of justice under the law, the court shall
grant a new trial motion. Ibid.A trial court "has broad discretion in the conduct of the trial, including the
scope of counsel's summation." Litton Indus., Inc. v. IMO Indus., Inc., 200 N.J.
372, 392 (2009). We apply an abuse of discretion standard to a judge's ruling
related to summations. Id. at 392-93. "An appellate court, however, may view
counsel's failure to object to summation remarks as 'speaking volumes about the
accuracy of what was said.'" Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81,
128 (2008) (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 495
(2001)).
Here, the Department failed to object to comments made by Bay Pointe's
attorney during closing argument. When opposing counsel fails to object to
alleged improper comments during summation, we review those remarks under
the plain error standard. R. 2:10-2. An unchallenged error constitutes plain
A-1761-22
26
error if it was "of such a nature as to have been clearly capable of producing an
unjust result." Ibid.We discern no error, let alone plain error, warranting a new trial based on
defense counsel's comments during summation. Defense counsel's summation
represented fair comment on the trial evidence. In reviewing the transcript of
the closing arguments, we note Bay Pointe's attorney focused on the conflicting
valuation opinions of the appraisal experts. Nothing in defense counsel's closing
constituted plain error clearly capable of leading to an unjust result.
Additionally, the judge instructed the jury that defense counsel served as
an advocate for his client, and statements by counsel during summation did not
constitute evidence. Again, nothing in the record suggests the jury failed to
understand and follow the judge's instruction on this point. Therefore, the judge
properly denied the Department's motion for a new trial based on defense
counsel's comments during summation.
VII.
We next address the Department's argument that cumulative errors during
the course of the trial warranted a new trial. "[E]ven when an individual error
or series of errors does not rise to reversible error, when considered in
combination, their cumulative effect can cast sufficient doubt on a verdict to
A-1761-22
27
require reversal." State v. Jenewicz, 193 N.J. 440, 473 (2008). "Where the
aggregation of legal errors renders a trial unfair, a new trial is required." State
v. T.J.M., 220 N.J. 220, 238 (2015). However, this principle does not apply
"where no error was prejudicial and the trial was fair." Ibid. (quoting State v.
Weaver, 219 N.J. 131, 155 (2014)).
The judge rejected the Department's cumulative error argument in support
of the new trial motion. The judge explained the parties "both received a fair
trial and that there were no errors . . . leading to a result that shocked the
conscience of the [c]ourt."
Having rejected the Department's arguments on appeal regarding the
alleged trial errors, we reject its cumulative error argument. We are satisfied
there were no trial errors, and the Department received a fair trial.
VIII.
Because we reject the Department's arguments related to the judge's denial
of its motion for a new trial, we consider the Department's alternative argument
that the judge erred in declining to remit the amount awarded by the jury. We
disagree.
"Judicial review of the correctness of a jury's damages award requires that
the trial record be viewed in the light most favorable to plaintiffs." Cuevas v.
A-1761-22
28
Wentworth Grp., 226 N.J. 480, 488 (2016). "The standard for reviewing a
damages award that is claimed to be excessive is the same for trial and appellate
courts, with one exception—an appellate court must pay some deference to a
trial judge's 'feel of the case.'" Id. at 501 (quoting Johnson v. Scaccetti, 192 N.J.
256, 282 (2007)). As our Supreme Court held in Orientale v. Jennings, "[I]n the
unusual case where a damages award was grossly excessive or grossly
inadequate, the trial court retains the power to declare that a jury's damages
award shocks the conscience and to grant a new trial or offer the parties a
remittitur or an additur." 239 N.J. 569, 593 (2019). The Court explained, "When
a judge declares that a jury's damages award is so grossly excessive or grossly
inadequate 'that it shocks the judicial conscience,' see Cuevas, 226 N.J. at
485, the jury's appraisal of the evidence leading to an erroneous verdict should
not be entitled to any deference," ibid.After denying the Department's new trial motion, the judge addressed the
request for remittitur. The judge stated his reasons for rejecting the
Department's remittitur request in his January 4, 2023 decision placed on the
record. The judge explained:
[V]erdicts can vary greatly with regard to [the]
evaluation of the evidence and coming up with a before-
and-after value. And after taking into account the
benefit that was bestowed by the State on the
A-1761-22
29
construction of the dune, the $964,000 jury award was
within, I think, reason. It certainly was closer to
what . . . [Bay Pointe] believed that . . . fair market . . .
value was, and . . . I don't believe that it at all shocks
the conscience because it was in compliance -- or that
[the jury] for whatever reason chose to in this case . . .
put more credence in the methodology that was used by
[Bay Pointe]'s expert as opposed to that of the State,
and made its determination. And . . . I find that whether
I agree with that decision, that verdict, or not, it
certainly is in conformance with the evidence as
presented during the course of the trial.
In this case, the jury had to determine just compensation for the
Department's taking of the Property. In resolving that issue, the jury considered
the conflicting testimony of the parties' experts. The assessment of expert
testimony is uniquely within the province of the jury. State v. Vandeweaghe,
177 N.J. 229, 239 (2003). A jury is not bound by the testimony of an expert
witness. State v. M.J.K, 369 N.J. Super. 532, 549 (App. Div. 2004). A jury may
accept portions of an expert's testimony and reject other portions. Todd v.
Sheridan, 268 N.J. Super. 387, 401 (App. Div. 1993).
In this matter, the jury heard the experts' testimony, weighed that
testimony along with the testimony of the other trial witnesses, considered the
documentary evidence, and rendered an award. Based on our review of the
record, we are satisfied the jury credited the testimony of Bay Pointe's expert
appraiser over the testimony proffered by the Department's expert appraiser to
A-1761-22
30
render its award. The amount awarded by the jury did not shock the judicial
conscience. Thus, on this record, remittitur was unnecessary and unwarranted.
After carefully reviewing the entire record, we are satisfied the jury's
award of just compensation did not constitute a manifest denial of justice under
the law. The jury's awarded amount was supported by sufficient credible
evidence in the record. We discern no reason to disturb the verdict or the judge's
denial of the Department's motion for a new trial or, alternatively, remittitur.
To the extent we have not addressed any arguments raised by the
Department, they lack sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-1761-22
31