CITY OF ASBURY PARK v. DANIEL MCLOUGHLIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3964-07T13964-07T1

CITY OF ASBURY PARK, a Municipal Corporation of the State of New Jersey,

Plaintiff-Respondent,

v.

DANIEL MCLOUGHLIN and SETH NEMEROFF,

Defendants-Appellants,

and

WACHOVIA BANK, ASBURY PARK SEW ERAGE AUTHORITY, and CITY OF ASBURY PARK,

Defendants.

________________________________

 

Submitted: February 25, 2009 - Decided:

Before Judges Cuff, Fisher and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-3390-06.

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

Lawrence Shapiro argued the cause for respondent (Ansell Zaro Grimm & Aaron, attorneys; Mr. Shapiro, of counsel and on the brief).

PER CURIAM

Defendants Daniel McLoughlin and Seth Nemeroff appeal from a judgment awarding $375,000 as just compensation for their property, which was taken by plaintiff City of Asbury Park in 2006 to further its waterfront redevelopment efforts. Because the trial judge did not abuse his discretion in charging the jury to consider the effect of project influence on the property since 1984 or in admitting evidence of a 2002 comparable sale of property immediately adjacent to the subject property, we affirm.

I.

On November 12, 2002, defendants purchased property in Asbury Park located at 207 Second Avenue, Block 162, Lot 3 (the subject property), between Kingsley and Ocean Avenues for $225,000. The house on the property was a classic Victorian single-family house with approximately 3179 square feet of liv ing space. Defendants, both of whom lived in Manhattan, pur chased the property to use as a beach home in order to avoid paying exorbitant rates for summer rentals.

The subject property had fifty feet of frontage along Sec ond Avenue, and the lot had a depth of 132 feet. The house had a wrap-around porch; a large, open foyer with high tin ceilings in the Victorian style; a library; fireplaces; hardwood floor ing; and Victorian moldings throughout. The house also had a partial view of the ocean from the second floor, and was approximately a block from the Asbury Park public beach. Unfor tunately, the surrounding block was less than desirable: immedi ately adjacent to the property was an older apartment building on one side; on the other was an old multifamily home that suf fered a burnout after transients jury-rigged a battery-powered stove and caused a flash fire. Indeed, McLoughlin characterized the latter property as a "rat[-]infested nightmare."

Like the neighborhood, the subject property had fallen into a state of disrepair. In 2002, McLoughlin began to renovate it with the help of Nemeroff, neighborhood children whom he would hire, and occasionally professional contractors. McLoughlin pulled down the plaster walls due to the unacceptable knob-and-tube wiring that otherwise would have been extremely expensive to replace, and put up new sheetrock. He cut the shrubs down in front of the house and removed a bedroom on the front porch, which had been partially torn from the house; put in new PVC plumbing throughout the entire house; installed new "cable and telecom in every bedroom," as well as ceiling fans; installed approximately fifty-three new windows and twenty-six new six-panel doors; put in a new kitchen with appliances, although he did not finish the countertop; sanded down the salvageable hard wood floors and stained them; upgraded the heating system; and replaced the siding on the fa ade of the house at the direction of Asbury Park. McLoughlin spent every weekend and usually one or two days during the week renovating the property. All told, McLoughlin incurred between $73,000 and $75,000 in out-of-pocket renovation expenses. He completed about ninety-five percent of the renovation work and estimated that finishing the work would have cost about $4000.

Unbeknownst to defendants at the time of purchase, the sub ject property was in the middle of the City's waterfront rede velopment zone (WRZ), which was created under its 1984 water front redevelopment plan (Plan) to cure the area's blight. On August 1, 1984, the Mayor and City Council adopted a resolution providing that certain areas of the City were "areas in need of redevelopment." While several efforts were made over the years to redevelop the area, by the mid-1990s, the area was "a ghost town" in an advanced state of disrepair. However, in the late 1990s, refurbishing became more popular, the economy began to rebound, and interest rates dropped causing the prices of properties to rise.

In August 2001, the City signed a Memorandum of Understand ing (MOU) with a new developer. After the MOU was signed, the real estate market in Asbury Park experienced a boom, which was augmented by historically low interest rates. As a result of a general regional stimulus coupled with increased local specula tion based on the WRZ, Asbury Park waterfront property rapidly began to appreciate in value at unprecedented rates.

While the subject property was physically located almost squarely in the middle of the 1984 WRZ, it was not originally listed among the specific properties the Plan earmarked for pos sible condemnation. Five months before defendants purchased the subject property, the City adopted an amendment to the Plan on June 5, 2002, that identified the subject property as subject to potential acquisition. In preparing to exercise its takings powers, the City sent its appraiser, Dr. Donald Moliver, to appraise the property several times both before and after con demnation proceedings. Dr. Moliver's May 8, 2003, appraisal of the property was $235,000; his December 30, 2005, and February 1, 2007, appraisals were $350,000; and his final, July 24, 2006, appraisal was $335,000.

On July 24, 2006, the City filed a complaint pursuant to its eminent domain powers to acquire the property. Prior to instituting the action, defendants and the City agreed that the City would adopt an ordinance authorizing the condemnation pro ceedings and would institute the action by verified complaint no later than May 31, 2006. Defendants agreed to waive any and all objections to the City's authority to acquire title to the sub ject property and further agreed "the sole remaining issue[] shall be the amount of just compensation to be paid to the[m] for the acquisition of [their] property."

On July 28, 2006, a judge entered an order directing the City to appoint three disinterested commissioners pursuant to N.J.S.A. 20:3-12 to make an equitable appraisal of the property. The same day, the judge entered an order directing the City to deposit $235,000 with the clerk of the court and giving the City the right to exclusive possession and title after serving a Dec laration of Taking upon defendants. The City filed and served a Declaration of Taking on August 9, 2006, and deposited $350,000 with the clerk of the court as its estimate of fair and just compensation.

On September 8, 2006, the judge entered an order appointing three commissioners to examine and appraise the land and to file a report before January 2007; he later ordered an extension until February 28, 2007. On that latter date, the commissioners filed a report setting the just compensation to be paid at $375,500. Both the City and defendants subsequently filed appeals from the commissioners' award. The judge set an initial trial date of July 23, 2007; trial began on February 5, 2008.

Defendants' counsel made three motions to limit the testi mony and evidence presented to the jury. Defendants asked the court to prohibit the jury from viewing the property, arguing that it would be unfairly prejudicial; to instruct the jury that project influence did not apply until the 2002 redevelopment plan amendment, which identified the subject property as one that was subject to condemnation; and to exclude Dr. Moliver's fourth comparable sale as not sufficiently similar. The trial judge denied all three motions.

First, with regard to the jury viewing the property, the judge accepted the City's argument, noting that Rule 4:73-7 pro vides that the "jury shall view the land and property to be taken, unless the court otherwise orders." The judge stated for the record, "I certainly don't find the probative value is out weighed by any prejudice at all. I don't know how the jury can possibly decide this case without a viewing of the property. They have to see it." The City stipulated to limiting the view ing to the exterior of the home, and the jury subsequently viewed the property's exterior on February 7, 2008, accompanied by counsel and the court. Prior to his charge, the trial judge instructed the jury that its view of the property was only to be used to better help them understand the evidence presented in the courtroom.

Next, with respect to the applicability of the project-influence doctrine, the trial judge found that it applied from the 1984 redevelopment plan to the July 24, 2006, condemnation action. Although the document was not included in the record on appeal, counsel for the City quoted from the 1984 Plan's pream ble, which stated that within "the renewal area, properties may be acquired for . . . rehabilitation by the City using its power of eminent domain if necessary, in order to execute this rede velopment plan." After citing United States v. Miller, 317 U.S. 369, 63 S. Ct. 276, 87 L. Ed. 2d 336 (1943), for the proposition that subsequently condemned lands need only "probably" be within the scope of the initial redevelopment plan for the project-influence doctrine to apply, the trial judge denied defendants' motion. Ultimately, he instructed the jury that they might con sider the effects of project influence on the property's value beginning in 1984.

Finally, with regard to Dr. Moliver's fourth comparable sale, the trial judge found that similarity of a comparable property to a subject property went to the weight of the evi dence, not its admissibility, citing Ford Motor Co. v. Township of Edison, 127 N.J. 290, 308 (1992). Defendants had objected to the fourth sale, which was the adjacent "rat[-]infested prop erty," on the basis that it was a "five-family house which was in extremely poor physical condition" and because "there were plenty of other single-family houses" Dr. Moliver could have used instead. The judge disagreed, finding that if Dr. Moliver chose a bad comparable, it would come out on cross-examination, and denied the motion.

At trial, both parties called expert witnesses to the stand to testify to the true value of the property as of July 24, 2006. Both experts utilized a "sales comparison approach" to value the property, and agreed that this approach should be based upon the "highest and best" use of the property as a sin gle-family home. The experts also agreed, as a matter of law, that they could not consider the effects of project influence in their valuations. However, the parties disagreed on the valid ity of the properties used for the sales-comparison approach and the valuation of the subject property at the time of the taking.

Dr. Moliver, the City's expert, utilized four matched-pair sales of properties in 2002 that, in his opinion, were substan tially similar to the subject property to develop his opinion of value. In doing so, he utilized a per-square-foot methodology, which he opined was the "most common methodology that's employed" and testified that using only the gross sales price was not the industry standard. After adjusting the comparable properties' values for condition, location, and size, he ulti mately opined that the subject property had a value of $105 per square foot and was worth $335,000 as of July 24, 2006.

When questioned why the sales Dr. Moliver utilized were all consummated in 2002 rather than 2006, he explained that he chose them in order to factor out impermissible inflation resulting from the project influence of the City's redevelopment efforts. Although he admitted that more similar sales occurred in 2006, he opined that "the concept of discounting back current sales is awkward" and that he would "rather take the sales that I know or believe that were not project influenced and then bring them forward . . . , based upon what I think is a well-researched six-month study of hundreds of sales, plus independent validation, which I got from the Division of Taxation[.]"

Dr. Moliver explained that his study showed a dramatic upswing in property values in the Asbury Park WRZ after the City signed the 2001 MOU. The data in his report asserted that the rate of appreciation in Asbury Park was "relatively stable" at approximately one percent per month until August 2001. After the MOU, appreciation increased to nine percent per month, or 108 percent per year. Accordingly, Dr. Moliver opined that the data points in his study could be used to develop a discount factor to measure project influence on property value appreciation.

Utilizing a survey of matched-pair sales and trend lines, Dr. Moliver concluded that a discount factor for project influ ence could be done by subtracting the "normalized post MOU trend line from the actual post MOU data." Thus, "a post MOU sale can be discounted back to an earlier sale date one which is gener ally recognized to have been minimally impacted by project influence. If the current sale is properly discounted it should generally be compatible in value with the earlier sale." Dr. Moliver testified that, after applying the discount rate, the true value of appreciation from 2000 to 2006 ranged from thir teen to fifteen percent per year. He concluded that $335,000 was the actual value of the subject property, based on his ear lier $350,000 estimate and the fact that defendants did not complete the renovation work as he expected.

Defendants' expert appraiser, Maurice J. Stack, valued the property at $750,000. Stack utilized five comparable homes located near the subject property that sold in 2005 and resold in 2006. Like Dr. Moliver, he evaluated the properties on a price-per-square-foot basis after adjusting them for condition, location, and other similarities or differences. However, unlike Dr. Moliver, he opined that the best way to determine a property's true value was to consider contemporaneous sales. His report concluded a "straight-line change rate of 24% per year or 2.0% monthly" represented pure appreciation from the general market. He also assigned a seventy-three percent premium to the property, as it was on a beach block.

Stack testified that he also was required to discount any benefit or detriment to property value conferred by project influence. However, he opined that there was no additional appreciation throughout the 2002-2006 period as the result of post-MOU project influence. When asked whether he had included a component of positive project influence when coming up with his comparable sales prices, he stated "[t]here was noth ing . . . in the prices that needed to be taken out in order to come up with a figure that's applicable for this appraisal . . . . [T]hese are prices . . . that I've been able to confirm are pure and reflective of the market for this loca tion . . . ." Stack admitted he did not conduct a statistical study that could confirm this opinion.

On February 8, 2008, the jury returned a verdict, valuing the property at $375,000. Defendants subsequently moved for additur or a new trial; the judge entered an order denying their motion on March 28, 2008. This appeal followed.

II.

Defendants contend on appeal that the trial judge errone ously instructed the jury to consider the effect of project influence on the subject property beginning in 1984 when the City adopted its Plan. They argue that because the property was not itself specifically identified as one that may be acquired by the City until 2002, they are entitled to any appreciation in value that occurred from 1984 until 2002. The City counters that the trial judge correctly applied the applicable law regarding the project-influence doctrine, and that his jury instruction was proper.

At trial, defendants did not object to the jury instruc tion. Therefore, we review the instruction for plain error. R. 2:10-2; Fitzgerald v. Stanley Roberts, Inc., 186 N.J. 286, 317-18 (2006). "Under that standard, the issue is whether the [instruction] had the 'clear capacity for producing an unjust result.'" Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 493 (2001) (quoting State v. Melvin, 65 N.J. 1, 18 (1974); citing Rule 2:10-2); accord Tartaglia v. UBS PaineWebber Inc., 197 N.J. 81, 128 (2008); Kvaerner Process, Inc. v. Barham-McBride Joint Venture, 368 N.J. Super. 190, 201 (App. Div. 2004).

The Fifth Amendment to the Federal Constitution provides that private property shall not be taken for public use without just compensation. United States v. Reynolds, 397 U.S. 14, 15-16, 90 S. Ct. 803, 805, 25 L. Ed. 2d 12, 15 (1970). "The owner is to be put in the same position monetarily as he would have occupied if his property had not been taken." Ibid. However, in a condemnation proceeding, the correct measurement is not the value to the government, but rather the fair market value at the time of condemnation. United States v. 50 Acres of Land, 469 U.S. 24, 29, 105 S. Ct. 451, 454-55, 83 L. Ed. 2d 376, 382 (1984); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53, 81, 33 S. Ct. 667, 678-79, 57 L. Ed. 1063, 1082 (1913).

Fair market value is "the value that would be assigned to the acquired property by knowledgeable parties freely negotiat ing for its sale under normal market conditions based on all surrounding circumstances at the time of taking." Hous. Auth. of New Brunswick v. Suydam Investors, L.L.C., 177 N.J. 2, 20 (2003) (internal quotations omitted). This inquiry is not based upon the actual use of the property, but rather its "highest and best use": the most profitable or likely use at the time of appraisal or alternately a future use that produces the highest land value. Ibid.; see also County of Monmouth v. Hilton, 334 N.J. Super. 582, 587-88 (App. Div. 2000) (highest and best use must be (1) legally permissible; (2) physically possible; (3) financially feasible; and (4) maximally productive), certif. denied, 167 N.J. 633 (2001).

The project-influence doctrine was developed to protect both landowners and the government from appreciation or diminu tion in value due to an impending taking. Reynolds, supra, 397 U.S. at 16, 90 S. Ct. at 805, 25 L. Ed. 2d at 15-16. Any increase or decrease in value attributable to the government project for which the property is to be acquired may not be con sidered in calculating just compensation. Jersey City Redevel opment Agency v. Kugler, 58 N.J. 374, 378-79 (1971); cf. Twp. of W. Windsor v. Nierenberg, 150 N.J. 111, 128 (1997) ("The gener ally prevailing rule [during Kugler] dictated that any deprecia tion or inflation due to a public announcement [of condemnation] should not be reflected in the value set for the parcel.").

In New Jersey, condemnations are governed by the Eminent Domain Act of 1971, N.J.S.A. 20:3-1 to -50, and N.J. Const. art. I, 20. Twp. of W. Orange v. 769 Assocs., LLC, ___ N.J. ___, ___ (2009) (slip op. at 19). In turn, the Local Redevelopment and Housing Law, N.J.S.A. 40A:12A-1 to -49, grants a municipal governing body the authority to identify areas within its jurisdiction that are in need of redevelopment, acquire property by eminent domain, and convey property to developers without private bidding. Bryant v. City of Atl. City, 309 N.J. Super. 596, 602-03 (App. Div. 1998). The plan must indicate certain local objectives; provide land uses and building requirements within the project area; provide for relocation of residents; identify the property which is proposed for acquisition; and note any significant relationship of the plan to the master plans of other municipalities, the county, and the State. Id. at 617-18.

Turning back to the matter before us, the subject property has always been physically located within the WRZ, although the property was not specifically listed in the 1984 Plan as one that was to be immediately taken. However, simply because a parcel of land is not specifically so listed does not necessar ily mean that it is outside the scope of the redevelopment pro ject and thus excluded from the project-influence doctrine. Defendants rely on Reynolds to support their contention that the project-influence doctrine did not apply until the 2002 Plan amendment was adopted, which identified the subject property for taking. Although this may be true where a property was "merely adjacent" to a redevelopment project that was subsequently enlarged to include the property, Reynolds, supra, 397 U.S. at 17-18, 90 S. Ct. at 806, 25 L. Ed. 2d at 16, the doctrine is not as limited as defendants suggest.

As the Reynolds Court explained, when a public project con templates the taking of certain tracts of land, but not all of them are initially taken, the owners of the subsequently taken tracts should not enjoy an artificially inflated value. Id. at 17, 90 S. Ct. at 805, 25 L. Ed. 2d at 16. Under this "scope-of-the-project rule,"

The question then is whether the respon dent's lands were probably within the scope of the project from the time the Gov ernment was committed to it. If they were not, but were merely adjacent lands, the subsequent enlargement of the project to include them ought not to deprive the respondents of the value added in the mean time by the proximity of the improvement. If, on the other hand, they were, the Gov ernment ought not to pay any increase in value arising from the known fact that the lands probably would be condemned. The own ers ought not to gain by speculating on probable increase in value due to the Government's activities.

Id. at 17-18, 90 S. Ct. at 806, 25 L. Ed. 2d at 16 (emphasis added).]

Further, the scope-of-the-project rule "does not require a show ing that the land ultimately taken was actually specified in the original plans for the project. It need only be shown that dur ing the course of the planning or original construction it became evident that land so situated would probably be needed for public use." Id. at 21, 90 S. Ct. at 807-08, 25 L. Ed. 2d at 18.

This is clearly not a case where the City extended a munici pal redevelopment plan to include an unsuspecting land owner's discrete adjacent parcel of land. Instead, the subject property was physically located almost squarely in the middle of the WRZ. The preamble from the 1984 Plan plainly stated that "[w]ithin the renewal area, properties may be acquired for clearance or rehabilitation by the city using its power of emi nent domain if necessary in order to execute the redevelopment plan." We are satisfied that the subject property was "probably within" the scope of the project, beginning with the 1984 Plan. It was not plain error for the judge to instruct the jury that they could consider the effects of project influence on the value of the property between 1984 and 2006. We also find no legal error in the denial of defendants' in limine motion in this respect.

III.

Defendants next contend that the trial court erred not only in allowing the City to present Dr. Moliver's Comparable Sale No. 4 ("Sale No. 4"), but also in admitting his other comparable sales. They reason that because all of Dr. Moliver's comparable sales occurred in 2002, those sales cannot accurately predict the subject property's value at the date of the taking, which was about four years later. Thus, they assert that because the "City utilized sales which required significant adjust ments . . . from the City's appraisal expert," it failed "to perform the necessary function of [providing] 'comparable sale[s].'" We disagree.

At the outset, we note that defendants at trial only moved to exclude Sale No. 4, rather than all of the City's comparable sales. "It is a well-settled principle that our appellate courts will decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available . . . ." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). The exceptions to Nieder's gen eral proscription against late-raised issues are matters that go to the court's jurisdiction, Alloway v. Gen. Mar. Indus., L.P., 149 N.J. 620, 643 (1997), or subject matters of sufficient pub lic concern to warrant consideration, Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 230 (1998). Neither exception is triggered here. Consequently, we limit our consideration to whether the judge erred in allowing the jury to consider Sale No. 4.

A "trial court is vested with wide discretion in passing upon the question of comparable sales." Twp. of Wayne v. Kosoff, 73 N.J. 8, 16 (1977). Therefore, we review the judge's decision to admit Sale No. 4 for a misapplication of that dis cretion. Although that standard of review "defies a precise definition," our Supreme Court has commented that "it arises when a decision is 'made without a rational explanation, inex plicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Imm'n & Nat'n Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)); see also Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005) (same). Under this deferential standard of review, "the exercise of discretion by a trial judge in ruling on the admissibility of comparable sales is [ordinarily] sustained on appeal." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 483 (App. Div.), certif. denied, 165 N.J. 607 (2000).

It is true that comparable-sales evidence "is effective in determining value only where there is a substantial similarity between the properties so as to admit of reasonable comparison." City of Atl. City v. Boardwalk Regency Corp., 19 N.J. Tax 164, 186 (App. Div. 2000) (citation omitted). However, deference to the trial court's discretion remains appropriate because of the inherent difficulty in comparing one property's distinct characteristics to another. As we have explained,

"Obviously, no two properties can be exactly alike, and no general rule can be laid down regarding the degree of similarity that must exist to make such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the prop erties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jury, must nec essarily rest largely in the sound discre tion of the trial court, which will not be interfered with unless abused."

[Casino Redevelopment, supra, 332 N.J. Super. at 483 (quoting County of Ocean v. Lan dolfo, 132 N.J. Super. 523, 528 (App. Div. 1975)).]

With regard to Sale No. 4, Dr. Moliver testified it was particularly useful because it was physically adjacent to the subject property. His report considered and applied adjustments for the building's condition and other dissimilarities. These adjustments included a twenty-percent reduction in value for its poor condition, which he testified was because the property was partially destroyed by a flash fire and had human feces on the steps.

The trial judge found that the differences in properties used for sales comparisons and the subject property goes to the weight of the evidence, not admissibility. Although we note that a comparable sale that is so completely dissimilar as to be useless to the jury may not be admissible, Boardwalk Regency Corp., supra, 19 N.J. Tax at 186, we find no reason to reverse here. Sale No. 4. was of a comparable size, could be used as a single-family home, and was located directly adjacent to the subject property. The judge was well within his discretion to find that it was of "sufficient similarity to the [subject prop erty] so that [it] lent logical, coherent support to [Dr. Mol iver's] opinion of the [subject property's] value." Casino Redevelopment, supra, 332 N.J. Super. at 484. His decision to admit Sale No. 4 rested upon a solid foundation and did not fly in the face of established policy, Flagg, supra, 171 N.J. at 571; therefore, we will not disturb it on appeal.

IV.

After carefully reviewing the record in the light of the written arguments advanced by the parties, we con clude that the remaining issues presented by defendants are without suffi cient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(1)(E). These issues are (1) that the trial court abused its discretion by allowing the jury to view the subject prop erty; and (2) that the jury verdict was against the weight of the evidence. We add only the following brief comments.

Jury views in general are controlled by N.J.S.A. 2B:23-16(a), which grants the trial judge discretion to order a site visit of the "lands, places or property in question to under stand the evidence better." However, in a condemnation action, Rule 4:73-7 provides that if "a jury is demanded, the . . . jury shall view the land and property to be taken, unless the court otherwise orders." Ibid. (emphasis added). Thus, sub ject to an exercise of discretion, a jury view is ordinarily required by this court rule. See Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 325 (2000) (holding under rules of statutory construction, "the word 'shall' generally is mandatory"); Wiese v. Dedhia, 188 N.J. 587, 592 (2006) (applying canons of statu tory construction when interpreting court rules). McLoughlin and the experts testified to the condition of the property while owned by defendants, the judge did not consider irrelevant or inappropriate factors in deciding the issue, and there is no clear error of judgment in denying defendants' motion in this respect. Thus, we find no mistaken exercise of discretion.

Last, Rule 4:49-1 provides that a new trial may be granted on any or all of the issues at trial upon motion to the trial judge within twenty days of the return of a jury's verdict. A judge is directed to grant the motion if "having given due regard to the opportunity of the jury to pass upon the credibil ity of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). This high standard mandates that jury verdicts are set aside "with great reluctance, and only in cases of clear injus tice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). When a jury returns a verdict for damages, the trial court "should not interfere with the quantum of damages assessed by a jury unless it is so disproportionate . . . as to shock [the judicial con science so that] to sustain the award would be manifestly unjust." Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977); see also Jastram v. Kruse, 197 N.J. 216, 229-30 (2008) (jury award that has reasonable support in the record should not be disturbed).

The jury in the instant matter returned a verdict of $375,000. That award was higher than Dr. Moliver's valuation of $335,000, but significantly lower than Stack's estimate of $775,000. Of course, the jury was free to accept all or reject all or any part of the experts' competing analyses. Boryszewski, supra, 380 N.J. Super. at 383. The quantum of the jury's award could simply be a result of their crediting Dr. Moliver's sales analyses as well as McLoughlin's testimony regarding his renovations. A jury verdict somewhat in excess of the State's valuation was supported by trial testimony and does not shock our judicial conscience. The trial judge did not err in this respect.

Affirmed.

 

Improperly plead as Meneroff.

A matched-pair sale is the sale and resale of the same property within a given time period.

(continued)

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A-3964-07T1

June 25, 2009