BOROUGH OF CLIFFSIDE PARK v. ESTATE OF IGNATIUS CATANZARO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5761-08T25761-08T2

BOROUGH OF CLIFFSIDE PARK, A

Municipal Corporation of the

State of New Jersey,

Plaintiff-Respondent,

v.

ESTATE OF IGNATIUS CATANZARO,

ALFRED C. CATANZARO, VINCENT

CATANZARO and his heirs, FRANK

CATANZARO and his heirs, LORENZA

CATANZARO a/k/a FLORENCE CATANZARO

a/k/a LORENZA GIANNATTASSIO a/k/a

FLORENCE GIANNATTASSIO and her

heirs, IGNAZIO CATANZARO, EDWARD

MONANI, RICHARD MONANI, STELLA

LUISA, INC. d/b/a FULTON CRAB

HOUSE, ALFRED MARTINVIC, LORINE

GIANNATTASIS, WACHOVIA BANK, N.A.,

successor in interest to County

Trust Company of North Jersey,

N.A., improperly identified as North

Fork Bank, TD BANKNORTH, as successor

in interest to Hudson United Bank,

THEMISTOCLES PSOMIADIS, NANCY S.

CATANZARO, 18 EAST 77th STREET

ASSOCIATES, A LIMITED PARTNERSHIP,

ENGLEWOOD HOSPITAL & MEDICAL CENTER,

BLANCHE TORNICHIA, ALFRED F. MAURICE,

STATE OF NEW JERSEY, BENEFICIAL

NEW JERSEY, INC., CENTRAL JERSEY BANK &

TRUST CO., TWIN OAKS FUEL CORPORATION,

AND ANDREW RAZIN, M.D., ESTATE OF

IGNAZIA CATANZARO, her heirs and others

as their interests may appear, ESTATE

OF PHYLLIS CATANZARO, her heirs and

others as their interest may appear,

Defendants,

and

ANTHONY C. CATANZARO,

Defendant-Appellant.

_________________________________________________

 

Submitted June 9, 2010 - Decided

Before Judges Axelrad and Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-2729-06.

Michael S. Kasanoff, attorney for appellant.

Diktas Schandler Gillen Morejon, P.C., attorneys for respondent (Christos J. Diktas, of counsel; Christine Gillen, on the brief).

PER CURIAM

In this condemnation appeal, defendant Anthony C. Catanzaro (defendant), the property owner, argues he was denied a fair trial because a juror failed to disclose her relationship with his stepson. He also argues the jury's verdict represents an improper averaging of the parties' competing appraisals rather than an actual determination of the property's value. We reject these arguments and affirm.

I

Plaintiff Borough of Cliffside Park filed this action seeking to condemn real property owned by defendant. The property consisted of a 2,643 square foot lot and a 4,488 square foot building with a restaurant on the first floor and residential apartments on the second and third floors. The court appointed commissioners made a determination of the property's value, which Cliffside Park rejected. Thereafter, Judge Menelaos Toskos presided over a four-day jury trial, at the conclusion of which the jury awarded defendant $850,000. Defendant unsuccessfully moved for a new trial or additur, and thereafter filed this timely appeal.

The trial predominantly consisted of the presentation of the opinions of the parties' appraisers. Robert McNerney, Cliffside Park's expert, valued the property at $590,000, and Donald Helmstetter, defendant's expert, valued the property at $1,225,000. At trial, McNerney explained that he analyzed comparable sales of four other similar multiple-use commercial properties. He also considered the property's fixtures and calculated the potential income an owner would expect to receive from the rental of the apartments and the use of the restaurant. Helmstetter testified that he used the direct sales and income approaches to establish a base value of $1,100,000 for the property's status as a "general commercial mixed use building." He then added $125,000 to account for the additional value attributable to special restaurant-related improvements, such as the "extensive restaurant plumbing and drainage" to reach his final figure of $1,225,000. Defendant also presented extensive testimony about the value of restaurant-related renovations made to the property by defendant in the 1980's.

Defendant first argues he is entitled to a new trial because, in his view, the jury did not weigh the evidence but simply took an average of the values placed on the property by the parties' experts. He bases this contention not only on the fact that an averaging of the appraisals is almost precisely what the jury awarded, but also because the jury deliberated for only approximately thirty minutes, which would suggest the jury did not take the time to adequately weigh the evidence.

Jury verdicts should be set aside "only with great reluctance, and only in cases of clear injustice." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App. Div. 2005), certif. denied, 186 N.J. 242 (2006). Clear injustice exists "when upon examination the verdict is found to be so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it is the result of mistake, passion, prejudice or partiality . . . ." Klawitter v. City of Trenton, 395 N.J. Super. 302, 325 (App. Div. 2007) (quoting Aiello v. Myzie, 88 N.J. Super. 187, 194 (App. Div.), certif. denied, 45 N.J. 594 (1965)). In other words, "a jury verdict, from the weight of the evidence standpoint, is impregnable unless so distorted and wrong, in the objective and articulated view of a judge, as to manifest with utmost certainty a plain miscarriage of justice." Doe v. Arts, 360 N.J. Super. 492, 502-03 (App. Div. 2003) (quoting Carrino v. Novotny, 78 N.J. 355, 360 (1979)). When reviewing a motion for a new trial, the court is obligated to accept all evidence supporting the verdict as true and draw all reasonable inferences in favor of upholding the verdict. Boryszewski, supra, 380 N.J. Super. at 391.

In this setting, we recently held that "averaging, whether of appraisals or comparable sales, is not an appropriate methodology for assessing divergent values." Pansini Custom Design Assocs., LLC v. City of Ocean City, 407 N.J. Super. 137, 146 (App. Div. 2009). There, the judge, as the finder of fact, after excluding high and low comparable sales, averaged the values of the remaining comparables to arrive at a fair market value. Id. at 139. In disapproving this methodology, we held that "[p]roperties are not fungible[,] [and] [e]ven with adjustments during the appraisal process, there are sufficient differences that must be weighed and considered by the fact-finder in addressing the ultimate issue in dispute." Id. at 146. We also found averaging in this setting to be pernicious because it could result in

appraisals slanted to the extreme. Averaging will generate appraisals that will inten-tionally distort and skew the values to insure a high or low number without concern that the fact finder must resolve the issue with a careful analysis of data that may result in adoption of one appraisal figure over another.

[Id. at 146-47.]

However, Pansini does not require reversal here. There, as we have noted, it was clear the finder of fact had used averaging in obtaining a value. Here, there is no evidence that the jury averaged the appraisals other than what the verdict might superficially suggest.

A deeper examination of the record, however, reveals that the jury may not have averaged the expert's opinions. For example, McNerney provided four comparable sales: a property with a lot "almost identical to the subject property's lot size" that sold for $825,000; a second property "very similar to the subject" with a building "built approximately the same time as the subject" that sold for $485,000; a third property in Lyndhurst that sold for $950,000; and a fourth property in Hackensack that was "[b]uilt approximately the same time as the subject property" that sold for $585,000. To some degree or another, the jurors could have been influenced that one or more of these comparable sales provided persuasive evidence of the value of the property in question.

We, thus, find insufficient grounds upon which to intervene or upset the jury's verdict in this case.

II

Defendant also argues a new trial is required because of juror misconduct. A new trial is warranted whenever juror misconduct or irregular influences could have had "a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Panko v. Flintkote Co., 7 N.J. 55, 61 (1951).

The following facts are relevant to defendant's argument. David E. Marrone, defendant's adult stepson, attended the second day of trial for a few hours. David works as a manager at a bar and restaurant in Englewood. Five days after the trial's conclusion, one of the jurors (Juror #7) approached David at the Englewood restaurant. David knew the juror for approximately four years as both a customer and through her friendship with David's former girlfriend. A videotape taken from the restaurant's security surveillance camera revealed that Juror #7 had a brief conversation with David; no audio of the conversation was contained on the disc provided to the trial judge and included in the record on appeal. The grainy video shows a blonde woman (apparently Juror #7) approach a man (apparently David) standing at a cash register. The ensuing unrecorded conversation lasted several minutes; the two participants hugged twice during the conversation.

According to David's certification, Juror #7 told him "you were never going to get that money," "they were never going to get the money," and "that it wasn't in the jury's eyes for them to get the money." David claimed he did not realize she was a juror in the case until this encounter and, if he had recognized her when he attended the trial, he would have advised his father. The day after the restaurant encounter, David advised his father, who moved for a new trial.

Defendant contends the juror's failure to disclose her relationship with David denied him the right to a fair trial because, had he known, he would have exercised a preemptory challenge to remove her from the jury. Judge Toskos correctly determined that the juror did not fail to honestly answer all questions during voir dire because the venire was never asked whether they knew David. Moreover, the judge noted that David had a different last name than defendant, and there was no evidence to suggest that Juror #7 knew defendant or his relationship with David during voir dire or at any other time during the course of the trial.

The fundamental right of a fair trial by an impartial jury is "jealously guarded by the courts." Panko, supra, 7 N.J. at 61. "[T]he parties to the action are entitled to have each of the jurors who hears the case, impartial, unprejudiced and free from improper influences." Ibid. In State v. Scherzer, 301 N.J. Super. 363, 486 (quoting Panko, supra, 7 N.J. at 61), we reiterated the well-settled test to determine if jury misconduct impermissibly tainted the verdict:

a new trial will be granted when jury misconduct or the intrusion of irregular influences into jury deliberations "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." . . . The test is "not whether the irregular matter actually influenced the result but whether it had the capacity of doing so." . . . Where the record does not show whether the irregularity was prejudicial, it will be presumed to be so.

A motion for a new trial may be granted on the basis that a juror omitted or falsified material information during voir dire that "had the potential to be prejudicial" and if disclosed, would have given counsel a reasonable basis to exercise a peremptory challenge to exclude the juror. State v. Cooper, 151 N.J. 326, 349 (1997), cert. denied, 528 U.S. 1084, 120 S. Ct. 809, 145 L. Ed. 2d 681 (2000). Therefore,

[w]here a juror on voir dire fails to disclose potentially prejudicial material . . . a party may be regarded as having been denied [a] fair trial. This is not necessarily because of any actual or provable prejudice to his case attributable to such juror, but rather because of his loss, by reason of that failure of disclosure, of the opportunity to have excused the juror by appropriate challenge, thus assuring with maximum possible certainty that he be judged fairly by an impartial jury.

[In re Kozlov, 79 N.J. 232, 239 (1979) (citing State v. Deatore, 70 N.J. 100, 105-06 (1976)).]

Once sworn, "the law presumes that every juror in a case is indifferent and above legal exception, or otherwise he would have been challenged for cause." Wright v. Bernstein, 23 N.J. 285, 294 (1957).

Several cases inform our rejection of defendant's argument. In Wright, a personal injury case, a juror remained silent when asked if he or anyone in his family had been involved in "accident cases." 23 N.J. at 291. When it was discovered the juror's mother was then a plaintiff in a personal injury case, the defendants moved for a mistrial, which the trial court denied. Id. at 292-93. The Supreme Court, however, found that had the juror answered the question truthfully, the defendants would have undoubtedly exercised a preemptory challenge. Id. at 294. The Court determined that "[w]hat happened in this case had the effect of nullifying the purpose of the examination and was as effective as though the trial court had denied the right of challenge." Id. at 295. The Court, thus, concluded that the trial court should have granted the mistrial "as a safeguard to or vindication of the fundamental principle that the administration of justice be kept free of all suspicion of corrupting practices or extraneous influences." Id. at 296.

Likewise, in State v. Thompson, 142 N.J. Super. 274, 278-79 (App. Div. 1976), a juror failed to disclose that he had once been a correctional officer, even after he was asked during voir dire if he had ever been employed in law enforcement. We held that "the question was clear and important in the context of the criminal issue involved, and the silence of the juror, whether deliberate or inadvertent, was misleading to defendant and prejudiced him in a valuable incident of the trial process -- the exercise of a peremptory challenge." Id. at 280. We concluded "the misleading silence of the juror herein amounted to a denial of the right of peremptory challenge -- a substantial right in the concept of a fair and impartial trial[,]" and ordered a new trial "even in the absence of a showing of actual prejudice." Id. at 281.

In Cooper, the question was whether a juror's failure to disclose during voir dire her cousin's imprisonment in a federal prison deprived the defendant of the opportunity to exercise a preemptory challenge. 151 N.J. at 349. The Supreme Court noted that "[a]lthough the rule does not require a litigant to demonstrate prejudice by showing that an improperly empaneled juror did not decide the case fairly . . . it does require a litigant to demonstrate that, had he or she known of the omitted information, he or she would have exercised a peremptory challenge to exclude the juror." Ibid. (citing Wright, supra, 23 N.J. at 294-95). The Court then determined that even equipped with the knowledge of the juror's imprisoned cousin, the defendant probably would not have excused the juror because she "did not appear to be in any way a 'bad' defense juror." Id. at 351. The Court concluded that the defendant had not demonstrated any prejudice suffered as a result of the omission and affirmed the conviction. Ibid. See also State v. Scher, 278 N.J. Super. 249, 259-60 (App. Div. 1994).

More recently, we examined a circumstance where a juror realized during deliberations that he knew the defendant, but did not make that fact known to the trial judge and ultimately participated in the deliberations that resulted in a guilty verdict. State v. Bianco, 391 N.J. Super. 509, 511 (App. Div. 2007). In rejecting the defendant's argument that he was denied a fair trial as a result of the juror's failure to disclose his acquaintance with the defendant, we distinguished Cooper, Thompson, and Scher on the basis that "[t]he type of information that was misrepresented or omitted during jury selection in those cases suggested the potential for the juror's bias against defendant, unlike here, where the judge found that the omitted information suggested that the juror might be biased in favor of defendant." Id. at 520-21.

The circumstances at hand are far more similar to Bianco and Cooper than Wright and Thompson in that Juror #7's relationship with David suggested that if she was biased, it was likely in favor of defendant. The information provided to the trial judge when defendant moved for a new trial reveals that the juror and David were acquainted with each other; it also suggests that their relationship was friendly. That would demonstrate only that any influence resulting from this relationship would likely inure in defendant's favor. Moreover, this evidence does not show that Juror #7's relationship with David "could have a tendency to influence the jury in arriving at its verdict in a manner inconsistent with the legal proofs and the court's charge." Scherzer, supra, 301 N.J. Super. at 486. Accepting as true the statements attributed to Juror #7 by David does not demonstrate the jury was impacted by outside influence but only that the jury had not been persuaded by defendant's proofs or arguments. And, as stated earlier, unlike the circumstances in Wright and Thompson, where the jurors misled the court by failing to accurately respond to direct questioning during voir dire, the venire here was never asked whether they knew or had a relationship with David. In the final analysis, defendant has "not elaborate[d] even in the most hypothetical way on the prejudice that he suffered. . . ." Cooper, supra, 151 N.J. at 351.

 
For these reasons, and because we find insufficient merit in defendant's other arguments to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), we affirm.

(continued)

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A-5761-08T2

June 23, 2010