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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-6088-08T2

CITY OF LONG BRANCH, A Municipal Corporation of the State of New Jersey,

Plaintiff-Appellant,

v.

STEPHEN ANGELIDES, JOHN ANGELIDES, and EMMANUEL VLASTAKIS,

Defendants-Respondents,

and

NEW JERSEY AMERICAN WATER CO., CITIZEN'S FEDERAL BANK, and TRUMP PLAZA ASSOCIATES,

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Defendants.

______________________________________ November 17, 2010 Argued November 4, 2010 - Decided

Before Judges R. B. Coleman and J. N. Harris.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2080-06.

Paul V. Fernicola argued the cause for appellant (Paul V. Fernicola & Associates, LLC, attorneys; Mr. Fernicola of counsel; Robert E. Moore, on the brief).

Peter H. Wegener argued the cause for respondents Stephen Angelides, John Angelides and Emmanuel Vlastakis (Bathgate, Wegener & Wolf, attorneys; Mr. Wegener, on the brief).

PER CURIAM

This is an eminent domain case. Plaintiff City of Long Branch (Long Branch) appeals from a jury verdict that awarded just compensation for the condemnation of three properties of defendants Stephen Angelides, John Angelides, and Emmanuel Vlastakis in the aggregate amount of $2,025,000. We affirm. I. A. In 2001, Long Branch authorized the acquisition of certain real property within its Beachfront North Sector of the Oceanfront-Broadway Redevelopment Area. Among the parcels to be acquired were defendants'
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three properties that are involved in this case: 38, 44-46, and 52 Seaview Avenue. Although defendants did not contest the authority of Long Branch to take their properties in this case, they vehemently challenged the amount of just compensation that was offered to them. Plaintiff filed a verified complaint on May 4, 2006, seeking to confirm its authority to exercise the power of eminent domain and to determine the just compensation required to be paid for that privilege. After the appointment of condemnation commissioners and the completion of their work pursuant to the dictates of the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -47, defendants remained aggrieved by the just compensation award. They subsequently filed a notice of appeal from the award of the commissioners and demanded a jury trial. That trial was held before Judge John R. Tassini over the course of several days. It yielded a final determination by the jury of just compensation in the aggregate amount of $2,025,000. B. As noted, defendants' properties comprise a small part of Long Branch's redevelopment zone. The neighborhood that surrounds the properties is bounded by North Bath Avenue to the south, the Atlantic Ocean to the east and Ocean Boulevard on the west, and Joline Avenue to the north. The date of valuation for eminent domain purposes was stipulated as May 4, 2006. See N.J.S.A. 20:3-30. During trial, both sides repeatedly described the character of the neighborhood to the jury. In his opening remarks, counsel for Long Branch portrayed the neighborhood as in economic decline, with many properties vacant and boarded up. He noted the paucity of construction permits in the vicinity as evidence of its undesirability. To the contrary, defendants' counsel's opening statement sought to depict the locale as well maintained and markedly dissimilar to the rundown portions of the redevelopment area. The attorneys clashed over the appropriate background information that should be conveyed to the jury. Ultimately, Judge Tassini ordered, "I don't want mention of [the] redeveloper. You can mention [the] redevelopment zone." Furthermore, the trial court held, "[I] [d]on't want mention of litigation challenging the redevelopment." The parties presented appraisers, together with their expert opinions of fair market value, to the jury for its consideration. Long Branch's appraiser, Hugh A. McGuire, Jr., opined that the fair market values of the single-family homes at 38 and 52 Seaview Avenue, as of the date of valuation, were respectively $547,000 and $475,000. McGuire found that the two-family dwelling at 44-46 Seaview Avenue was worth

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$612,000 as of the same date. Arithmetically, the aggregate sum of the three properties' fair market value was $1,634,000. Using the same date of valuation, defendants' appraiser, John Brody, opined that 38 Seaview Avenue was worth $875,000, 44-46 Seaview Avenue had a fair market value of $933,000, and 52 Seaview Avenue's fair market value was $810,000. Mathematically, these amounts added up to $2,618,000. The spread between Long Branch's and defendants' opinions was almost $1,000,000. The jury returned a split verdict. In a pair of six-to-one votes, it determined just compensation for 38 Seaview Avenue to be $675,000 and just compensation for 44-46 Seaview Avenue to be $755,000. Unanimity was achieved regarding the just compensation of $595,000 for 52 Seaview Avenue. The final judgment reflected the aggregate just compensation for the three properties as of May 4, 2006, to be $2,025,000. II. On appeal, Long Branch raises the following points for our consideration: POINT I: THE PROPERTY OWNERS PRESENTED INAPPROPRIATE ARGUMENTS TO THE JURY REGARDING THE CITY OF LONG BRANCH'S RIGHT TO TAKE.

POINT II: THE TRIAL COURT ERRED IN ALLOWING THE PROPERTY OWNERS' APPRAISAL EXPERT TO UTILIZE VARIOUS SALES WHICH DID NOT MEET THE REQUIREMENTS TO QUALIFY AS COMPARABLE TO THE SUBJECT PROPERTY.

1. THE TRIAL COURT FAILED TO EXCLUDE SALES WHICH OCCURRED SUBSEQUENT TO THE DATE OF VALUATION.

2. THE TRIAL COURT FAILED TO EXCLUDE SALES WHICH DID NOT REFLECT THE HIGHEST AND BEST USE OF THE SUBJECT PROPERTY.

3. THE TRIAL COURT FAILED TO EXCLUDE SALES WHICH DID NOT CONSTITUTE "ARMS-LENGTH" TRANSACTIONS.
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From our review of the record, we discern nothing about the trial court's management of the trial, including its evidentiary rulings, which engendered undue prejudice to Long Branch. Accordingly, we are unpersuaded that our intervention is either necessary or appropriate. Long Branch's grievances stem from discrete events that occurred during the trial. It casts blame for the alleged errors upon the failure of the trial court to adequately police the conduct of defendants' attorney. Our review of trial management decisions ---- be they evidentiary rulings or other determinations affecting interchanges with the jury ---- are reviewed under the abuse of discretion standard. See State by Comm'r of Transp. v. Inhabitants of Town of Phillipsburg, 240 N.J. Super. 529, 547 (App. Div. 1990) (noting that the trial judge is given wide discretion in determining the admissibility of evidence). "A trial judge has the ultimate responsibility to control the trial in the courtroom and is given wide discretion to do so." Horn v. Vill. Supermarkets, Inc., 260 N.J. Super. 165, 175 (App. Div. 1992), certif. denied, 133 N.J. 435 (1993). "But this responsibility must be exercised reasonably and within constitutional bounds." Ryslik v. Krass, 279 N.J. Super. 293, 297-98 (App. Div. 1995). A. Long Branch argues first that the jury verdict was improperly tainted because defendants' counsel, in his remarks to the jury, once mentioned litigation regarding other residents near the subject property stating, you were told that there [was] certain litigation going on and it had to do with whether this neighborhood . . . should have been included in that redevelopment zone. And some of those people contested that . . . and that case is still going on. Defense counsel continued in another vein, "[l]et me just say that [there's] . . . no evidence of blight." Long Branch's attorney immediately objected. During the ensuing sidebar conference outside the hearing of the jury, the court found that it was improper to mention prior litigation. Defense counsel responded that all jurors were asked whether they were aware of the litigation, so any comment was harmless. Long Branch's attorney also objected to the use of the word "blight," arguing that it had legal significance. Defendants' counsel responded that blighted

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was synonymous with "in need of redevelopment," a term heavily used during Long Branch's opening. Most significantly, defendants' attorney stressed that his comments were responding to his adversary's opening remarks about the supposed vacant and boarded up properties in the neighborhood. He argued to the trial court, "[s]o the jury has to ---- if they're going to have a jury view, the jury has to understand and we have to be able to demonstrate that those houses that are boarded up are as a result of the [redevelopment] project." At the conclusion of the discussion, Judge Tassini warned: I don't want mention of the redeveloper. You can mention redevelopment zone. . . . I'll allow the discussion of conditions before January [20]06, that's to say, December [20]05, because that's before possible project or probable project influence, because in January of [19]96, the redevelopment zone was recreated. [I don't] want mention of litigation challenging the redevelopment.

The court never stated that the term "blighted" could not be used. Immediately following the sidebar, defense counsel continued his opening, stating, "there's no substantial evidence that that neighborhood was blighted or in need of redevelopment." Plaintiff's attorney made no objection to this last remark. Not every improper comment by counsel during trial warrants a reversal. Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009) (noting, "[f]leeting comments, even if improper, may not warrant a new trial, particularly when the verdict is fair."); but cf. Szczecina v. PV Holding Corp., 414 N.J. Super. 173, 185 n.5 (App. Div. 2010) (new trial ordered due to particularly outrageous nature of the conduct at issue combined with a disproportionate verdict). It is only when the comments of counsel transgress the boundaries of broad latitude and "the comments are so prejudicial that 'it clearly and convincingly appears that there was a miscarriage of justice under the law[,]'" that a new trial must be ordered. Bender v. Adelson, 187 N.J. 411, 431 (2006) (quoting R. 4:49-1(a)) (comments to the jury must be based in truth, and counsel may not misstate evidence or distort facts). The condition of the subject neighborhood, as well as a fair understanding of how it got that way in light of the date of valuation, were important issues argued by both sides. Defense counsel's passing comment about litigation and his stray use of the word "blight" had no objective potential to undermine a fair consideration of the just compensation issues by the jury. Although these were not considerations directly relevant to a determination of the fair market value of the properties, they were sufficiently

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connected that the trial court's treatment produced, at worst, harmless error not warranting a new trial. Even applying the indulgent standard that tests "not whether the irregular matter actually influenced the result, but whether it had the capacity of doing so," Panko v. Flintkote Co., 7 N.J. 55, 61 (1951), we are satisfied that Long Branch's urgings are unconvincing. B. Long Branch's other arguments all address the trial court's decisions concerning certain comparable sales as part of appraiser Brody's opinions of value. First, plaintiff contends that the trial court erred by allowing Brody to use sales of two-family dwellings that took place on September 18, 2006 and December 28, 2006, as part of the appraisal opinion regarding the fair market value of 44-46 Seaview Avenue. These sales ---- occurring four and seven months after the valuation date ---- were under contract three to four months before closing. Thus, in the opinion of the appraiser, the values reflected in the later deeds were relevant indicators of value because of their close proximity to the date of value for just compensation purposes. Brody was closely cross-examined concerning this issue and explained that appraisers take into consideration the time of the contract for sale or "the meeting of the minds." The jury was fully aware of the pros and cons of the post-date-of-valuation sales, and how they figured in Brody's ultimate opinion of value. Naturally, the jury was not bound to follow that opinion. Indeed, "[i]n determining valuation the jury is under no obligation to accept an expert's opinion; it may accept such testimony as appears reasonable, reject all of it or accept all of it." State by Comm'r of Transp. v. Interpace Corp., 130 N.J. Super. 322, 332 (App. Div. 1974); see also State v. Vacation Land, Inc., 92 N.J. Super. 471, 478 (App. Div. 1966). The trial court in its discretion may allow comparable sales occurring after the date of valuation. Our courts have considered the issue of comparable sales after a date of valuation in terms of remoteness. See Rek Inv. Co. v. City of Newark, 80 N.J. Super. 552, 560 (App. Div. 1963) (sale of subject property two months after assessment date "entitled to great weight"); Samuel Hird & Sons, Inc. v. City of Garfield, 87 N.J. Super. 65, 70-71 (App. Div. 1965) (sale eight and a half months after assessing date considered); Almax Builders, Inc. v. City of Perth Amboy, 1 N.J. Tax 31, 37 (Tax 1980) (sale seven months after assessing date "admitted for its rational probative valuation inference"); Glen Wall Assocs. v. Twp. of Wall, 99 N.J. 265, 283 (1985) (holding a sale less than three months after assessment date as an indicator of

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value). Brody's use of sales from September and December 2006 was unremarkable and the trial court's allowance of that information was proper. Long Branch further argues that although Brody correctly determined the highest and best use of the properties was as continuations as one and two-family dwellings, he nonetheless used a comparable sale that was not intended for continuation as a single-family home. The municipality claims that this too was reversible error, warranting a new trial. Defendants contend that the sale was not subject to any approval contingencies, and land development approvals for an assembled multi-family project (the non-comparable use identified by Long Branch) were not obtained prior to the consummation of the sale. "Because the inquiry into the uses of property is usually wide-ranging, 'courts in this state have shown considerable liberality in admitting evidence of market value, particularly in terms of the highest and best use of the subject property.'" State by Comm'r of Transp. v. Caoili, 135 N.J. 252, 260-61 (1994) (quoting State by Comm'r of Transp. v. Silver, 92 N.J. 507, 515 (1983)). "Most relevant in determining fair market value is the property's highest and best use, which should be considered in light of applicable land restrictions." State by Comm'r of Transp. v. Shein, 283 N.J. Super. 588, 596 (App. Div. 1995), certif. denied, 143 N.J. 325 (1996). Highest and best use is defined as, the use that at the time of the appraisal is the most profitable, likely use or . . . the available use and program of future utilization that produces the highest present land value provided that use has as a prerequisite a probability of achievement.

[Hous. Auth. v. Suydam Investors L.L.C., 177 N.J. 2 (2003) (citing County of Monmouth v. Hilton, 334 N.J. Super. 582, 587 (App. Div. 2000) (internal quotations omitted)).]

To be the highest and best use, the use must be "1) legally permissible, 2) physically possible, 3) financially feasible, and 4) maximally productive." Hilton, supra, 334 N.J. Super. at 588. Long Branch objected to Brody's use of the putative assemblage-related sale. The trial court found the sale sufficiently relevant and exhorted counsel to impeach the expert's opinion. Indeed, during crossexamination, counsel for Long Branch extensively questioned Brody's use of the property in his analysis. Brody explained that he considered the sale comparable because the assemblage, of which the comparable sale property was to become a part, was not being acquired subject to any approvals.
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Considering the fulsome reservoir of discretion retained by trial courts in the admission of evidence of comparable sales and highest and best use, and because plaintiff had the opportunity to fully crossexamine Brody, we find that Long Branch is not entitled to a new trial. Brody explained his rationale behind his decision to use the sale as a comparable, and his use of the sale "goes to the weight rather than to the admissibility of this evidence." Casino Reinv. Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 485 (App. Div. 2000). The weight accorded this evidence was a determination to be made by the fact finder in this case, the jury. The trial court did not err by permitting the transaction to be treated as part of Brody's opinion. Long Branch's last argument revolves around testimony about another sale that it claims was not comparable to the subject properties as a matter of law. It contends that Brody's use of a transaction between siblings as a comparable sale was erroneously allowed by the trial court because it violated the requirement that comparable sales be at arms-length. We have addressed this issue thoroughly: It is conceivable that some sales, although of similar properties in the same neighborhood as that of the requisitioned property, do not exhibit a monetary consideration or purchase or exchange price evidential of fair market value. Notable examples are forced sales, intercorporate sales, family sales, and combination sales including both real and personal property for a single price. Again, in such instances the trial judge must exercise his sound discretion in the light of all the circumstances and conditions surrounding the particular transactions.

[In re Port of N.Y. Auth., 28 N.J. Super. 575, 581 (App. Div. 1953).]

Brody mentioned the sale as between brother and sister in his initial testimony on direct examination. Long Branch's counsel cross-examined Brody and questioned his use of a sale between siblings as comparable. Brody explained that sales between family members should not be disregarded categorically because although the rate of appreciation should be disregarded, the sales price itself, when compared with others in the area, was in his expert opinion representative of market value. The record shows that Long Branch had an unbridled opportunity to explore the inconsistency of the sibling sale and Brody explained his reasoning for using the sale during his testimony. The credibility afforded such testimony is the responsibility of the trier of fact. State by State Highway Comm'r v. Speare, 86 N.J. Super. 565, 575 (App. Div. 1965). "[T]he jury ha[s] the right to consider, inter alia, [the expert's]

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analysis of the sales in question, the availability of other sales which were more comparable, and the extent of comparability of each of the parcels cited with reference to time of sale, location and size." Ibid. Thus, because the sibling sale and Brody's opinion concerning it were not barred as a matter of law, we are unable to agree with Long Branch's contention that it was unduly prejudiced. III. In conclusion, we affirm the challenged decisions of Judge Tassini. Long Branch received all that it was due in the admeasurement of just compensation by the jury. The verdict is unassailable. Affirmed.

1 According to the acquisition-enabling ordinance adopted by Long Branch, a Redevelopment Plan for the Oceanfront-Broadway Redevelopment Area was adopted in 1996. Presumably, Long Branch was exercising its powers conferred by the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49.

2 44-46 Seaview Avenue was used as a two-family home. The other two properties were improved with single-family dwellings. These were treated as the properties' highest and best uses.

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