CITY OF ASBURY PARK v. VINCENT ALVINO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6457-08T26457-08T2

CITY OF ASBURY PARK, a Municipal

Corporation of the State of New

Jersey,

Plaintiff-Appellant,

v.

VINCENT ALVINO,

Defendant-Respondent,

and

J.V. HIGGENBOTTS, INC., a New Jersey

Corporation, JOHN FERRARA, CULMAC

INVESTORS, INC., STATE OF NEW JERSEY

and CITY OF ASBURY PARK SEWERAGE

AUTHORITY,

Defendants.

________________________________________________

Argued May 19, 2010 - Decided June 1, 2010

Before Judges Fisher, Sapp-Peterson and Espinosa.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-1185-06.

Lawrence H. Shapiro argued the cause for appellant (Ansell, Zaro, Grimm & Aaron, attorneys; Mr. Shapiro, on the brief).

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

PER CURIAM

In this appeal of a judgment entered following a trial that determined the value of condemned property, plaintiff City of Asbury Park argues that the trial judge should have granted a new trial or ordered a remittitur because: (1) defense counsel inflamed the jury's emotions by accusing the City of "eminent domain abuse"; (2) defense counsel utilized documents that misrepresented certain facts or otherwise misled the jury; and (3) the verdict was excessive. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add only the following comments regarding defendant's first argument.

On March 13, 2006, the City filed its complaint to condemn defendant Vincent Alvino's 11,000 square foot plot, which is located within the City's waterfront redevelopment area and upon which sits a one-story bar/restaurant. A declaration of taking was later filed, at which time the City deposited into court $250,000, the amount its appraiser deemed to be the property's fair market value. After an evidentiary hearing, court-appointed commissioners awarded $322,000. Both parties appealed that award to the Law Division.

At the outset of the jury trial, Judge John R. Tassini warned counsel not to argue "eminent domain abuse" because the case did not involve the right of the City to condemn the property, only the property's value. The judge was apparently concerned, and correctly so, about the considerable controversy surrounding the condemnation of property in shoreline communities in Monmouth County and elsewhere.

At trial, the parties hotly disputed the method and manner of valuation and, as a result, presented to the jury evidence and argument suggesting vastly different values for the property. The City's expert testified that the property's fair market value was $250,000; defendant's expert opined that the property was worth $1,544,000.

At the outset of his summation, defense counsel correctly advised the jury that "this case is not about the right to take the property[, . . .] [w]e're not here to re-litigate that issue," and reminded the jury that the issue for it to decide was the property's value. He then argued:

Now, you've heard a lot of testimony over the last several days, and when you look at the methods that the City utilized to value the property, while it's not about the right to take, their method is eminent domain abuse on its face. That the City's method to value this property was eminent domain abuse.

Defense counsel then in detail asserted what he contended was wrong with the City's approach in evaluating this property, and soon thereafter rhetorically asked, "Now, why do I say that it's eminent domain abuse?" With that the judge interrupted and the following colloquy occurred in front of the jury:

THE COURT: I want to say, Mr. Fernicola, I think you referred earlier to the method of taking --

MR. FERNICOLA: I said the method of valua-tion, I believe.

THE COURT: I think you said the method of taking. This case is not about how it was taken; it's about fair compensation on the date of taking.

MR. FERNICOLA: If I said method of taking I misspoke.

THE COURT: It is also not about eminent domain abuse; it is about fair compensation on the date in question, March 2006. Go ahead.

MR. FERNICOLA: That's right.

Defense counsel thereafter continued to focus his arguments on valuation and heeded the judge's direction by never again uttering the phrase "eminent domain abuse."

During his charge, Judge Tassini again addressed the objectionable portion of defense counsel's summation, cautioning the jury in the following way:

You heard the phrase earlier, "eminent domain abuse." That should not have been stated. That is not what this case is about. It's about the value and fair compensation on the relevant date, March 13th, 2006.

The City's attorney did not object or ask for additional instructions to the jury on this point.

The jury returned a verdict in favor of defendant in the amount of $1,544,000, the full amount sought by defendant and nearly five times what the court-appointed commissioners had awarded.

The City moved for a new trial. In denying the motion, the judge observed that defense counsel's use of the phrase "eminent domain abuse" was "troublesome" in light of his earlier instructions but concluded that his own sua sponte interruption of defense counsel's summation and the cautionary instructions that followed were more than sufficient to eliminate any prejudice. Indeed, as the judge noted, the City did not ask for any additional cautionary instruction than that given, thus suggesting its satisfaction with the judge's response to the problem. See, e.g., State v. Timmendequas, 161 N.J. 515, 576 (1999); Jackowitz v. Lang, 408 N.J. Super. 495, 505 (App. Div. 2009).

We agree that the interjection of the concept of "eminent domain abuse" in this trial, which was dedicated solely to the condemned property's value, was regrettable. However, Judge Tassini swiftly and properly addressed defense counsel's comments by discussing the matter in front of the jury with counsel as it occurred and again when he charged the jury. In reviewing such matters, we are obligated to assume that the jury adhered to the judge's instructions. See State v. Winder, 200 N.J. 231, 256 (2009); State v. Manley, 54 N.J. 259, 270 (1969); McRae v. St. Michael's Med. Ctr., 349 N.J. Super. 583, 599 (App. Div. 2002). We are satisfied that the judge's swift interruption of defense counsel's summation, his firm direction that the phrase not again be used, and his clear and unambiguous instructions to the jury eviscerated any sting caused by defense counsel's unfortunate reference to "eminent domain abuse."

 
Affirmed.

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