TOWNSHIP OF MANALAPAN VS. ANTHONY GENTILE (L-3821-10, MONMOUTH COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5302-16T1

TOWNSHIP OF MANALAPAN,
a Municipal Corporation of the
State of New Jersey,

Plaintiff-Appellant/
Cross-Respondent,

v.

ANTHONY GENTILE, Individually
and as Executor of THE ESTATE
OF EUGENE GENTILE, EUGENE
GENTILE, and FRANK GENTILE,
Administrator of the ESTATE OF
EUGENE JOHN GENTILE,

Defendants-Respondents/
Cross-Appellants.
_______________________________

Argued January 7, 2019 – Decided June 4, 2019

Before Judges Sabatino and Mitterhoff.

On appeal from Superior Court of New Jersey, Law
Division, Monmouth County, Docket No. L-3821-10.

William J. Wolf argued the cause for appellant/cross-
respondent (Bathgate Wegener & Wolf, PC, attorneys;
 William J. Wolf, Peter H. Wegener, and Ryan S. Malc,
on the briefs).

Lawrence B. Sachs argued the cause for
respondents/cross-appellants.

PER CURIAM

The Township of Manalapan ("the Township") appeals from a jury verdict

in a condemnation action initiated against owners of a forty-nine acre plot of

land. The jury returned a verdict that the fair market value of the property was

$4,500,000. The Township seeks a new trial, alleging that the jury award

exceeds the fair market value opined by its appraiser and is therefore against the

weight of the evidence. In addition, the Township claims multiple trial errors.

Defendants Anthony Gentile, the Estate of Eugene Gentile, and Frank Gentile

(collectively "defendants") cross-appeal from a grant of partial summary

judgment that dismissed their inverse condemnation claim, and the trial court's

determination of an interest rate applicable to the jury award. Having considered

the evidence from the record, and in light of the prevailing legal principles, we

affirm.

We recite the relevant facts and procedural history from the record.

Defendants owned a 48.94 acre plot of real property in Manalapan, New Jersey

("the subject property"). Prior to May 2002, the subject property was zoned in

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the R-40/20 Residential District and in the Limited Business-Tenant District,

which allows for residential subdivisions on half-acre lots. On May 22, 2002,

the Township adopted zoning ordinance 2002-16, which changed the zoning of

several properties, including the subject property, to RE – Residential

Environmental, providing for a minimum of three acres per single-family

residential lot. The areas surrounding the subject property are still zoned in the

R-40/20 Residential District.

In April 2010, the Township adopted a bond ordinance to acquire the

subject property for $2,800,000. On August 4, 2010, the Township commenced

a condemnation action against the subject property, and subsequently filed a

declaration of taking on September 14, 2010. Defendants filed an answer to the

condemnation complaint and a counterclaim for inverse condemnation.1 The

Township permitted defendants to continue operating their farm and produce

stand on the subject property during this time, until June 30, 2012.

1
Defendants had previously sued the Township for inverse condemnation on
July 3, 2002. On June 22, 2009, the Honorable Lawrence M. Lawson, A.J.S.C.,
entered an order dismissing the 2002 complaint but preserving defendants' rights
to pursue inverse condemnation damages against the Township in subsequent
litigation.

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 On May 18, 2015, the Honorable Lisa P. Thornton, A.J.S.C., set a trial

date in the instant action and ordered "[t]hat the issues to be tried by jury

between the parties hereto is the value of the lands taken and the damages, if

any, including damages from inverse condemnation resulting from such taking

to any remaining property as of May, 2008."

On July 29, 2016, the Township filed a motion for partial summary

judgment on defendants' inverse condemnation claim. During oral argument,

defendants conceded that the subject property could be subdivided into

marketable parcels, although the lot yield would be less than under the zoning

that existed prior to the change in May 2002.

The Honorable Katie A. Gummer, J.S.C., granted the Township's motion.

Judge Gummer noted that in order to state a claim for inverse condemnation, a

party must be "deprived of all or substantially all of the beneficial use of the

totality of his property." Defendants "conceded at oral argument that they have

not been deprived of all or substantially all of the beneficial use of the totality

of the property. . . . [T]he property could have been subdivided, though at a

different density. They could have continued farming, though chose not to."

On December 27, 2016, the Township filed five motions in limine,

requesting the following relief: (1) declaration that defendants waived all claims

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and issues, other than fair market value, as of the date of taking; (2) limiting

expert opinion on fair market value to a 2010 valuation date; (3) barring

respondents from utilizing a 2008 valuation date; (4) barring respondents from

utilizing a 2002 valuation date; and (5) barring respondents from presenting

testimony pertaining to offers to purchase their property.

Judge Gummer, after giving the parties an opportunity to brief the issue,

denied the Township's motions in limine. Specifically, with respect to setting

the valuation date as April 2010, the court found that granting the motion would

effectively dispose of the entire case because defendants relied on the May 18,

2015 order in building their case. Judge Gummer continued,

It would be highly prejudicial to [defendants] on the
morning of trial to say that [defendants were] supposed
to have a 2010 valuation and didn't. That issue could
have been raised before the Court in any of the number
of conferences before this Court, in any aspect of the
motions filed by [the Township], it could have been
raised. And it never was. Not until this motion [in]
limine.

The matter proceeded to trial beginning on January 9, 2017.

The Township presented its retained appraiser, James Stuart, MAI, SRA,

to opine on the subject property's market value. Stuart testified that as part of

his assignment, the Township instructed him to assume that the property could

yield twelve lots.

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 Stuart used the market approach in appraising the property. To determine

the value of the subject property on a per-lot, rather than a per-acre, basis, Stuart

examined comparable properties. Based on the comparable properties, Stuart

determined that the value of the lots ranged from $203,000 and $236,250. He

then took a lot value of $236,000 and multiplied it by twelve lots.

In determining the per lot value, Stuart took the subject property's location

and the fact that the property has access to sanitary municipal water and the

sewer system into account. The sites he compared to the subject property had

well water and septic systems. Sanitary municipal water and sewer access are

not typically available in rural areas such as where the subject property is

located.

When asked, Stuart was initially unsure if he visited the subject property

prior to the May 2008 appraisal. He denied having met defendants. Eventually,

after being confronted with a prior appraisal from 2003, Stuart admitted to

conducting an appraisal of the subject property for defendants and to having met

defendants previously.

Defendants presented an urban planner, Paul Phillips, AICP, PP, to testify

regarding the subject property's highest and best use. Prior to Phillips'

testimony, the Township objected because Phillips' expert report was created for

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the 2002 litigation and he did not create an updated report for the instant

litigation. After listening to arguments from defendants and the Township, the

trial court permitted Phillips to testify about a limited portion of his expert

report. The court first expressed concern that Phillips' report was created for a

prior litigation. However, this concern was alleviated when the court learned

that both parties intended to use expert reports created for the prior litigation in

the instant matter. The court limited Phillips' testimony to the following issues:

(1) the physical characteristics of the subject property and the surrounding areas,

and (2) his opinion regarding the highest and best use of the subject property.

The trial court instructed defendants' counsel that Phillips was not permitted to

opine about how to obtain a variance or the likelihood that defendants would be

granted a variance.

Regarding the highest and best use of the subject property, Phillips

testified that

given where this site is located, given the surrounding
development context, given the fact that there's sewer
service available to the property, that I believe it's
ideally suited for a development that would be
generally consistent with that R20 half acre designation
and that would amount to essentially a density that
would be, if my math is correct, up to six times the
density of the underlying RE three acre zoning.

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 On cross-examination, Phillips conceded that the subject property is zoned

for three-acre lots, not half-acre lots. To create half-acre lots on the subject

property, defendants would need to change the zoning designation or obtain a

variance.

Prior to trial, defendants had provided an expert market value appraisal by

Russell Sterling, MAI, CRE to the Township in discovery, and listed Sterling as

a witness in its pretrial disclosures. However, defendants did not call Sterling

at trial. The Township made a motion to compel Sterling's testimony. The trial

court denied the Township's motion, noting

[T]hat a party lists a witness in their pretrial disclosures
does not require that party to call that person as a
witness at trial. . . .

So there's no guarantee in that, that any of the witnesses
in fact would be called[.]

Additionally, defendants examined Anthony Gentile primarily regarding

the physical characteristics of the subject property. On cross-examination, the

Township attempted to elicit the market value of the subject property that

Sterling provided in his appraisal. The trial court also refused to allow

questioning on the contents of Sterling's appraisal, finding that the contents of

the report were hearsay as the report was furnished in discovery, but not in

response to interrogatories.

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 After the Township and defendants concluded their cases, the Township

moved for entry of judgment in the amount of $2,830,000. The Township argued

that the sole issue at trial was the fair market value of the subject property in

May 2008 and that the Township's expert offered the only testimony on that

issue. The trial court granted the motion in part and denied the motion in part.

To prevent "rank speculation," the trial court limited defendants' summation by

preventing them from suggesting that the jury could find that the highest and

best use of the subject property was half-acre lots. The trial court noted that

there was no expert testimony regarding the value of lots smaller than three

acres, nor was there expert testimony that the jury would be able to simply divide

the value of a three-acre lot to get the value of a half-acre lot. However, the trial

court denied the entry of judgment for $2,830,000 because it found that the jury

would not need to reach that specific amount based on the evidence presented.

The jury returned a verdict that the fair market value of the subject

property in May 2008 was $4,500,000.

On January 12, 2017, the Township filed a post-trial motion for judgment

notwithstanding the verdict, pursuant to Rule 4:40-2, and a motion for a new

trial, pursuant to Rule 4:49-1. During oral argument, the Township argued that

the jury should not have been allowed to hear Phillips' testimony regarding

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smaller lots without a Rule 104 hearing to determine the likelihood that a zoning

change would occur. The Township argued that Phillips' testimony allowed the

jury to speculate as to the fair market value of the subject property.

The trial court denied both motions. Considering the standard for a

motion for a new trial, the trial court concluded that a reasonable jury could have

determined that the value was more than what the Township presented. The trial

court reasoned that there were credibility issues with Stuart's testimony that a

reasonable jury could have considered in weighing the evidence. The jury

charge, which the Township provided, stated that the jury could accept all of the

expert's testimony, accept the parts it determined were credible, or reject all of

it. The charge provided that the jury's conclusions must be based on the

evidence.

On May 17, 2017, defendants applied for an order setting pre-judgment

interest. In an oral decision setting the interest rate in accordance with Rule

4:42-11(a)(ii), the trial court acknowledged the Township's argument that the

"the jury verdict was significantly higher than the amount set forth" by the

Township's appraiser. Defendants argued that "the interest rate to be utilized

should at the very least be the prime rate, or perhaps the commercial rate of

interest." However, "defendants provided no expert statement as to what those

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rates are, provided really no submission whatsoever as to what those rates are."

In setting the rate, the trial court reasoned that New Jersey courts have affirmed

setting the interest rate in accordance with Rule 4:42-11(a)(ii) when a jury

maximized on the award.

This appeal and cross-appeal followed.

Standards of Review

An appellate court reviews a trial court's evidentiary rulings for abuse of

discretion. Brenman v. Demello, 191 N.J. 18, 31 (2007). Thus, an appellate

court will not disturb a trial court's evidentiary rulings unless they are "so wi de

off the mark that a manifest denial of justice resulted." Green v. N.J. Mfrs. Ins.

Co., 160 N.J. 482, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)).

However, an appellate court will review questions of law de novo. Balsamides

v. Protameen Chem., Inc., 160 N.J. 352, 372 (1999).

Trial errors that were brought to the attention of the court are reviewed

for harmful error. "Any error or omission shall be disregarded by the appellate

court unless it is of such a nature as to have been clearly capable of producing

an unjust result[.]" R. 2:10-2. Thus, if a trial judge is found to have abused his

or her discretion, or otherwise erred, the appellate court must then determine

whether that error amounted to harmful error, provided the alleged error was

A-5302-16T1
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brought to the trial judge's attention. See State v. Prall, 231 N.J. 567, 581 (2018)

("Our review of the evidentiary determinations cannot end our analysis when we

find an abuse of discretion; rather, we must then determine whether any error

found is harmless or requires reversal.").

Condemnation Generally

In a condemnation case, the State is required to pay just compensation to

the property owner for the property taken. State by Comm'r of Transp. v. Caoili,

135 N.J. 252, 260 (1994). "Just compensation is 'the fair market value of the

property as of the date of the taking, determined by what a willing buyer and a

willing seller would agree to, neither being under any compulsion to act.'" Ibid.

In condemnation cases,

[j]ust compensation shall be determined as of the date
of the earliest of the following events: (a) the date
possession of the property being condemned is taken by
the condemnor in whole or in part; (b) the date of the
commencement of the action; (c) the date on which
action is taken by the condemnor which substantially
affects the use and enjoyment of the property by the
condemnee; or (d) the date of the declaration of blight
by the governing body upon a report by a planning
board pursuant to section 38 of P.L.1971, c. 361 (C.
20:3-38)[.]

[N.J.S.A. 20:3-30.]

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 "[A]ll reasonable uses of the property bear on its fair market value.

However, most relevant in ascertaining fair market value is the property's

highest and best use." Caoili, 135 N.J. at 260. The highest and best use "is that

use that is 1) legally permissible, 2) physically possible, 3) financially feasible,

and 4) maximally productive." Cty. of Monmouth v. Hilton, 334 N.J. Super.

582, 588 (App. Div. 2000). "The reasonableness of a use of condemned

property, including its highest and best use, must be considered in light of any

zoning restrictions that apply to the property. Hence, the zoning restrictions that

govern the use of the property are material factors in determining its fair market

value." Caoili, 135 N.J. at 260.

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." That evidence encompasses
all "relevant facts at the time of the taking[, which] may
include those that have a bearing on an available future
use of the property."

[Id. at 260-61 (citations omitted).]

Juries need not find that a zoning change is likely in order to consider the

available future uses of real property when determining the fair market value.

Id. at 264. "[T]he critical inquiry is the reasonable belief by a buyer and seller

engaged in voluntary negotiations over the fair market value of property that a

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change may occur and will have an impact on the value of the property

regardless of the degree of probability." Id. at 264-65. See also State by Comm'r

of Transp. v. Silver, 92 N.J. 507, 515 (1983) ("[T]he inquiry into relevant facts

at the time of the taking may include those that have a bearing on an available

future use of the property.").

Further,

[w]hile it is true that the concept of just compensation
should be flexible, . . . and a trial judge should have
considerable discretion in a condemnation case in
determining the method of proof and the materiality of
evidence, that flexibility and the exercise of discretion
must always result in the jurors being instructed to
reach a measure of damages capable of reasonable
ascertainment so that they will be prevented from
speculation in reaching a verdict.

[State by Comm'r of Transp. v. Cooper Alloy Corp.,
136 N.J. Super. 560, 570 (App. Div. 1975) (citations
omitted).]

Motion in Limine as to Valuation Date

The Township argues that the trial court erred in denying its motion in

limine to set the valuation date for the subject property as April 2010. We

disagree and conclude that the trial court correctly set the valuation date as May

2008.

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 A motion in limine is a "pretrial request that certain inadmissible evidence

not be referred to or offered at trial." Cho v. Trinitas Reg'l Med. Ctr., 443 N.J.

Super 461, 470 (App. Div. 2015) (quoting Black's Law Dictionary 791 (9th ed.

2009)). "Even when a limited issue is presented, '[o]ur courts generally disfavor

in limine rulings on evidence questions,' because the trial provides a superior

context for the consideration of such issues." Ibid. (alteration in original)

(quoting State v. Cordero, 438 N.J. Super. 472, 484-85 (App. Div. 2014)).

However, trial judges retain the discretion to grant evidentiary motions when

appropriate. Ibid. Trial judges are cautioned to use their discretion sparingly,

especially when a party seeks to exclude expert testimony because such

exclusion "has the concomitant effect of rendering a [party's] claim futile." Id.

at 470-71 (citing Bellardini v. Krikorian, 222 N.J. Super. 457, 463-64 (App. Div.

1988)).

A motion in limine "is not a summary judgment motion that happens to

filed on the eve of trial." Id. at 471. Thus, "[w]hen granting a motion will result

in the dismissal of a plaintiff's case or the suppression of a defendant's defenses,

the motion is subject to Rule 4:46, the rule that governs summary judgment

motions[,]" which requires that motions be returnable at least thirty days prior

to the scheduled trial date, unless otherwise ordered by the court. Ibid.

A-5302-16T1
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 Furthermore, we have found that a trial court correctly exercised its

discretion when it denied a motion to compel discovery which was made for the

first time at trial where "the moving party had knowledge of the document

[requested], failed to file a timely motion and offered no explanation of such

failure." Id. at 471-72.

In the instant matter, we conclude that the trial court properly exercised

its discretion by denying the Township's in limine motion to set the valuation

date as April 2010 and to bar expert testimony regarding the May 2008 valuation

date. See Brenman, 191 N.J. at 31; Cho, 443 N.J. Super. at 470-71. We

emphasize that motions in limine are meant to be granted sparingly and we have

previously warned trial judges about granting motions in limine that would

render a party's claim futile. See Cho, 443 N.J. Super. at 470-71.

Here, the Township's motions would have amounted to an effective

disposal of the case, in violation of the legal principles expressed in Cho. See

id. at 471. As the trial court ordered on May 18, 2015 that the valuation date for

trial purposes was May 2008, defendants' expert testimony was based on the

May 2008 valuation date only. Had the trial court granted the Township's

motions in limine, defendants would have had no expert testimony with which

to defend the case.

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 In addition, the Township received the May 2015 order and made no

attempt to appeal from it for over one year, until the eve of trial. Thus, the

Township failed to respond to the order setting the valuation date in a timely

manner, despite having notice of the order. See id. at 471-72.

For these reasons, we find that the trial court correctly denied the motion

to bar evidence of the May 2008 valuation date.

Defendant's Planning Expert

The Township next argues that allowing defendants' planning expert to

testify amounted to harmful error. We disagree and conclude that the trial court

properly exercised its discretion by allowing defendants' planning expert to

testify in a limited manner.

"The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015)

(citing State v. Berry, 140 N.J. 280, 293 (1995)). Expert testimony is governed

by Rule 702, which

imposes three basic requirements for the admission of
expert testimony: (1) the intended testimony must
concern a subject matter that is beyond the ken of the
average juror; (2) the field testified to must be at a state
of the art such that an expert's testimony could be
sufficiently reliable; and (3) the witness must have
sufficient expertise to offer the intended testimony.

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 [State v. Kelly, 97 N.J. 178, 208 (1984).]

"Trial judges have discretion to preclude an expert from testifying to

opinions not contained in his or her report or in any other discovery material."

Anderson v. A.J. Friedman Supply Co., Inc., 416 N.J. Super. 46, 72 (App. Div.

2010) (citing Ratner v. Gen. Motors Corp., 241 N.J. Super. 197, 202 (App. Div.

1990)).

Further, in condemnation cases, a Rule 104 hearing may be necessary, if

one party wants to elicit testimony regarding a zoning change. See Borough of

Saddle River v. 66 East Allendale, LLC, 216 N.J. 115, 143 (2013). In Allendale,

the trial court did not hold a Rule 104 hearing before allowing experts to testify

that a bulk variance would likely be granted to the property owners. Id. at 140.

The Supreme Court reversed and held that "only when the trial court has first

determined that the evidence is of a quality to allow the jury to consider the

probability of a zoning change should the jury be permitted to assess a premium

based on that zoning change[.]" Id. at 142. The Court noted that this

"gatekeeping function was assigned to the judge specifically to screen the jury

from hearing mere speculation." Ibid.

Here, the trial court properly exercised its discretion in allowing Phillips

to testify in a limited manner on the opinions expressed in his expert report. See

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Townsend, 221 N.J. at 52. As the trial court found, the Township did not dispute

that Phillips was qualified to render an expert opinion on planning.

Furthermore, while Phillips did not submit an expert report written for the

current litigation, defendants did furnish his expert report from the prior 2002

litigation to the Township during discovery. After argument from both parties'

attorneys, the trial court limited Phillips' testimony to the section in his report

where he opines on the "highest and best use" for the subject property. Thus,

Phillips was not permitted to testify beyond the opinions expressed in his expert

report. See Anderson, 416 N.J. Super. at 72.

Moreover, contrary to the Township's argument, a Rule 104 hearing was

not required before allowing Phillips to testify. See Allendale, 216 N.J. at 143.

Unlike the expert in Allendale, Phillips did not present testimony regarding the

likelihood of a variance being granted to the subject property. See id. at 140.

He merely confirmed that while his opinion was that the subject property is best

suited for half-acre lots, a variance, or other zoning change, would be required

before such lots would be permitted on the subject property. Thus, Phillips'

testimony did not make any speculative comments regarding the likelihood of

defendants' obtaining a variance. See id. at 142.

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Defendant's Appraisal

The Township next argues that the trial court erred in refusing to allow

the Township to present evidence of defendants' appraisal during the trial. We

disagree and conclude that the trial judge correctly exercised its discretion in

refusing to allow the Township to present such evidence.

An expert listed as a testifying witness may be called by an adversary, if

the party who listed the witness decides not to call him. See Fitzgerald v.

Stanley Roberts, Inc., 186 N.J. 286, 301-02 (2006). The Court has held "that

access to the testifying witness is allowed and the adversary may produce a

willing expert at trial." Id. at 302. However, one party's expert witness cannot

be compelled to testify on behalf of an adverse party. See Graham v.

Gielchinsky, 126 N.J. 361, 369 (1991). The court thus did not err in denying

the Township's motion to compel Sterling to testify.

Likewise, the court properly sustained an objection to questioning of

Anthony Gentile on cross-examination of the results of Sterling's appraisal. In

that regard, a statement that would otherwise be hearsay may be admissible if it

is an adoptive admission, or "a statement whose content the party has adopted

by word or conduct or in whose truth the party has manifested belief[.]" N.J.R.E.

803(b)(2).

A-5302-16T1
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 A hearsay statement qualifies as an adoptive admission
if two criteria are satisfied. First, the party to be
charged must be aware of and understand the content of
the statement allegedly adopted. . . . Second, it must be
clear that the party to be charged with the adoptive
admission 'unambiguously assented' to the statement.

[McDevitt v. Bill Good Builders, Inc., 175 N.J. 519,
529 (2003) (citations omitted) (citing State v. Briggs,
279 N.J. Super. 555, 563 (App. Div. 1995)).]

For purposes of the "adoptive admission" exception to the hearsay rules,

"[t]he report of an expert is also a statement. However, unlike an answer to an

interrogatory it is not a statement of a party and therefore cannot be treated as

an admission simply because a party furnished it in discovery." Skibinski v.

Smith, 206 N.J. Super. 349, 353 (App. Div. 1985). "An expert's report can be

admissible as an adoptive admission of a party pursuant to N.J.R.E. 803(b)(2)

in some instances when the party provides the report in response to specific

interrogatories and thus adopts the contents as its admission." Corcoran v. Sears

Roebuck and Co., 312 N.J. Super. 117, 126-27 (App. Div. 1998) (citing Ratner,

241 N.J. Super. at 201 n.2).

Here, as acknowledged by the trial court, and all parties, the Township did

not propound any interrogatories on defendants. Thus, defendants cannot be

said to have adopted their expert's appraisal merely because it was furnished in

discovery. See Skibinski, 206 N.J. Super. at 353. Therefore, the trial court

A-5302-16T1
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correctly precluded questioning on cross-examination about Sterling's appraisal

as inadmissible hearsay.

Motion for Judgment and Renewed Motion for Judgment notwithstanding the

Verdict

The Township next argues that the trial court erred by denying its motion

for judgment and renewed motion for judgment notwithstanding the verdict

because the jury heard only one expert opine on the value of the subject property.

We disagree and conclude that the trial court properly denied the Township's

motions.

"A motion for judgment, stating specifically the grounds therefor, may be

made by a party either at the close of all the evidence or at the close of the

evidence offered by an opponent." R. 4:40-1. In determining whether a motion

for judgment under Rule 4:40-1 or Rule 4:40-2 was properly granted, appellate

courts apply the same standard the trial court applied. Frugis v. Bracigliano,

177 N.J. 250, 269 (2003).

If a motion for judgment is denied and the case
submitted to the jury, the motion may be renewed in
accordance with the procedure prescribed by R. 4:49-1
(new trial) within 20 days after the verdict or the jury's
discharge. A motion so renewed may include in the
alternative a motion for a new trial, and every motion
made by a party for a new trial shall be deemed to
include, in the alternative, a renewal of any motion for

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 judgment made by that party at the close of the
evidence.

[R. 4:40-2(b).]

The standard for a motion for judgment under Rules 4:40-1 and 4:40-2 is the

same standard governing motions for involuntary dismissal:

whether "the evidence, together with the legitimate
inferences therefrom, could sustain a judgment in
favor" of the party opposing the motion, i.e., if
accepting as true all the evidence which supports the
position of the party defending against the motion and
according him the benefit of all inferences which can
reasonably and legitimately be deduced therefrom,
reasonable minds could differ, the motion must be
denied. The point is that the judicial function here is
quite a mechanical one. The trial court is not concerned
with the worth, nature or extent (beyond a scintilla) of
the evidence, but only with its existence, viewed most
favorably to the party opposing the motion.

[Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) (citations
omitted).]

Motions for judgment are generally "denied when the case rests upon

issues of credibility." Alves v. Rosenberg, 400 N.J. Super. 553, 566 (App. Div.

2008) (citing Johnson v. Salem Corp., 97 N.J. 78, 92 (1984)). That "proofs are

undisputed is insufficient in and of itself to warrant the grant of a motion for

judgment . . . in situations in which credibility is at issue, since the fact -finder

A-5302-16T1
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is free to reject those uncontested proofs on credibility grounds." Ibid. (quoting

Johnson, 97 N.J. at 92).

Here, we conclude that the trial court correctly denied entry of judgment.

Applying the relevant legal principles, and affording all inferences in favor of

defendants, a jury could find that the subject property was worth more than the

stated $2,830,000. See Dolson, 55 N.J. at 5-6.

By moving for entry of judgment, the Township principally argued that

the jury had no choice but to find that the subject property could not yield

anything other than twelve lots which would each be valued at approximately

$236,000. See ibid. However, Stuart, the Township's appraiser, conceded that

his appraisal was based on the assumption that the subject property would yield

twelve lots. He subsequently admitted that the lot could yield more than twelve

lots. Thus, reasonable minds could differ on how many lots the subject property

would yield. See ibid.

Additionally, Stuart testified that the properties to which he compared the

subject property had septic systems, used well water, and had no access to sewer

lines or municipal water, while the subject property has such access. He also

conceded that developers prefer sites with access to sewer lines and municipal

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water. Thus, reasonable minds could differ on how much each individual lot

could be worth. See ibid.

Moreover, given the contradictory nature of some of Stuart's testimony,

it is of no moment that defendants did not call an appraiser as an expert witness

because the jury was free to reject some or all of Stuart's testimony on credibility

grounds. See Alves, 400 N.J. Super. at 566. Importantly, the jury was

specifically instructed that they had the ability to evaluate all of the expert

testimony for credibility and reject any testimony that they found incredible.

Thus, applying the same standard as the trial court, we conclude that the

court properly denied the Township's motions for judgment and judgment

notwithstanding the verdict.

Motion for New Trial

The Township next argues that the trial court erred in denying its motion

for a new trial because the jury was bound by its appraisal as defendants did not

offer expert testimony on the fair market value of the subject property. We

disagree and conclude that the trial court correctly denied the Township's motion

for a new trial.

A new trial may be granted to all or any of the parties
and as to all or part of the issues on motion made to the
trial judge. . . . The trial judge shall grant the motion if,
having given due regard to the opportunity of the jury

A-5302-16T1
25
 to pass upon the credibility of the witnesses, it clearly
and convincingly appears that there was a miscarriage
of justice under the law.

[R. 4:49-1(a).]

"The standard governing an appellate tribunal's review of a trial court's action

on a new trial motion is essentially the same as that controlling the trial judge."

Dolson, 55 N.J. at 7 (citing Hager v. Weber, 7 N.J. 201, 212 (1951)).

Analyzing whether a verdict is against the weight of the evidence

calls for a high degree of conscientious effort and
diligent scrutiny. The object is to correct clear error or
mistake by the jury. Of course, the judge may not
substitute his judgment for that of the jury merely
because he would have reached the opposite
conclusion; he is not a thirteenth and decisive juror.

[Id. at 6.]

"[T]he trial judge must . . . canvass the record, not to balance the persuasiveness

of the evidence on one side as against the other, but to determine whether

reasonable minds might accept the evidence as adequate to support the jury

verdict." Ibid. (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 445 (1962)). A

motion for a new trial considers "not only tangible factors relative to the p roofs

as shown by the record, but also appropriate matters of credibility, generally

peculiarly within the jury's domain, so-called 'demeanor evidence,' and the

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26
intangible 'feel of the case' which he has gained by presiding over the trial."

Ibid.

Here, the trial court correctly denied the Township's motion for a new trial

because there was no "clear error or mistake by the jury" that needed to be

corrected. See ibid. While the Township repeatedly argues that the jury had no

choice but to accept its appraisal of fair market value at $2,830,000, a reasonable

jury could disagree. See Dolson, 55 N.J. at 7. As explained above, Stuart's

credibility was undermined concerning the number of lots the subject property

would yield and the comparability of the subject lot to the lots used to determine

the fair market value. Further, the jury was specifically instructed that it could

accept the expert testimony or deny it, if it found the testimony to be incredible.

Moreover, Phillips, defendants' expert, testified that the subject property

was best suited for zoning in accordance with the surrounding area, which

allowed for smaller lots. While "the zoning restrictions that govern the use of

the property are material factors in determining its fair market value," Caoili,

135 N.J. at 260, the jury here would not need to find that a zoning change is

likely to consider such future uses when determining the fair market value of the

subject property. See id. at 264.

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 For the aforementioned reasons, we conclude that none of the challenged

legal rulings amount to an abuse of discretion, and we affirm the jury verdict.

On cross-appeal, defendants raise two arguments. We will address them

in turn.

Inverse Condemnation

Defendants first argue that the trial court improperly granted summary

judgment to the Township on defendants' inverse condemnation claim, which

arose as a result of the May 2002 re-zoning of the subject property. We disagree

and affirm the trial court's order granting summary judgment.

The standard of review for a grant of summary judgment is de novo.

Conley v. Guerrero, 228 N.J. 339, 346 (2017) (citing Templo Fuente De Vida

Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016)).

[W]hen deciding a motion for summary judgment under
Rule 4:46–2, the determination whether there exists a
genuine issue with respect to a material fact challenged
requires the motion judge to consider whether the
competent evidential materials presented, when viewed
in the light most favorable to the non-moving party in
consideration of the applicable evidentiary standard,
are sufficient to permit a rational factfinder to resolve
the alleged disputed issue in favor of the non-moving
party.

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
523 (1995).]

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"[S]ummary judgment will be granted if there is no genuine issue of material

fact and 'the moving party is entitled to a judgment or order as a matter of law.'"

Conley, 228 N.J. at 346 (citing Templo Fuente, 224 N.J. at 199).

"In an inverse condemnation action, a landowner is seeking compensation

for a de facto taking of his or her property. To establish an inverse

condemnation, requires the plaintiff to demonstrate that the governmental action

destroyed all beneficial use of the plaintiff's property." Dock St. Seafood, Inc.

v. City of Wildwood, 427 N.J. Super. 189, 202 (App. Div. 2011) (citations

omitted). However, "not every impairment in property value establishes a

taking." Ibid. (citing Karam v. Dep't of Envtl. Prot., 308 N.J. Super. 225, 235

(App. Div. 1998), aff'd 157 N.J. 187 (1999)).

In the context of regulating private property, the United States Supreme

Court has "stated, 'while property may be regulated to a certain extent, if

regulation goes too far it will be recognized as a taking.'" Mansoldo v. State,

187 N.J. 50, 58 (2006) (quoting Penn. Coal Co. v. Mahon, 260 U.S. 393, 415

(1922)). A regulation amounts to a taking if it "denies all economically

beneficial or productive use of [the] land." Ibid. (quoting Lucas v. South

Carolina Coastal Council, 505 U.S. 1003, 1015 (1992)) (emphasis and

alterations in original). However, "[d]iminution of land value itself does not

A-5302-16T1
29
constitute a taking. Similarly, impairment of the marketability of land alone

does not effect a taking. Also restrictions on uses do not necessarily result in

taking even though they reduce income or profits." Gardner v. N.J. Pinelands

Comm'n, 125 N.J. 193, 210 (1991) (citations omitted).

In the instant matter, the trial court correctly granted summary judgment

to the Township on defendants' inverse condemnation claim. Defendants cannot

state a claim for inverse condemnation because they cannot demonstrate that the

May 2002 re-zoning of the subject property deprived them of substantially all

economically beneficial or productive use of their land. See Mansoldo, 187 N.J.

at 58; Dock St. Seafood, 427 N.J. Super. at 202. Defendants conceded that

between May 2002, when the subject property was re-zoned, and September

2010, when the Township filed its declaration of taking, defendants were able

to continue to use their land for farming.

Further, defendants primarily argue that the re-zoning of the subject

property reduced the value of their land. However, "not every impairment in

property value establishes a taking," Dock St. Seafood, 427 N.J. Super. at 202,

and diminution in value, alone, does not amount to a taking that would give rise

to a cognizable inverse condemnation claim. See Gardner, 125 N.J. at 210.

Thus, defendants failed to establish a claim for inverse condemnation, and the

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trial court thus correctly granted the Township judgment as a matter of law on

that claim. See Conley, 228 N.J. at 346.

Interest Rate

Defendants next argue that the trial court erred by setting the interest rate

pursuant to Rule 4:42-11(a)(ii) because the court should have used the

commercial rate or the prime rate of interest. We disagree and conclude that the

trial court correctly set the interest rate in the instant matter.

An appellate court reviews the setting of an interest rate in condemnation

cases for abuse of discretion. Allendale, 424 N.J. Super. at 540. In

condemnation cases,

[i]nterest as set by the court upon the amount of
compensation determined to be payable hereunder shall
be paid by the condemnor from the date of the
commencement of the action until the date of payment
of the compensation; provided, however, that there
shall be excluded from the amount upon which interest
shall be calculated, all moneys deposited pursuant to
Article V hereof; and provided, further, that interest
payable hereunder shall be subject to abatement for
rents and profits derived from the property by the
condemnee during the period for which interest is
payable hereunder, and/or for the fair rental value of
such property or any portion thereof occupied by the
condemnee during such period.

[N.J.S.A. 20:3-31.]

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 Post-judgment interest rates are set pursuant to Rule 4:42-11, Brown v.

Davkee Inc., 324 N.J. Super. 145, 147 (App. Div. 1999), which states:

(ii) For judgments not exceeding the monetary limit of
the Special Civil Part at the time of entry, regardless of
the court in which the action was filed: commencing
January 2, 1986 and for each calendar year thereafter,
the annual rate of interest shall equal the average rate
of return, to the nearest whole or one-half percent, for
the corresponding preceding fiscal year terminating on
June 30, of the State of New Jersey Cash Management
Fund (State accounts) as reported by the Division of
Investment in the Department of the Treasury, but the
rate shall be not less than 0.25%.

(iii) For judgments exceeding the monetary limit of the
Special Civil Part at the time of entry: in the manner
provided for in subparagraph (a)(ii) of this Rule until
September 1, 1996; thereafter, at the rate provided in
subparagraph (a)(ii) plus 2% per annum.

[R. 4:42-11(a).]

In determining the interest rate, the trial judge "should consider the

prevailing commercial interest rates, the prime rate or rates, and the applicable

legal rates of interest." Allendale, 424 N.J. Super. at 540 (quoting Hauck, 317

N.J. Super. at 594). The judge should then "select that rate or rates of interest

which will best indemnify the condemnee for the loss of use of the compensation

to which he has been entitled from the date on which the action for condemnation

was instituted, less interest on all amounts previously deposited." Ibid. (quoting

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Hauck, 317 N.J. Super. at 594). "[T]he Legislature has not provided a uniform

rate of interest in condemnation actions[.]" Id. at 541. Without such guidance,

trial courts are left to decide "the issue on a case-by-case basis without regard

to some unifying framework of analysis[, which] poses substantial dangers to

the rights of property owners, public entities and the judicial process itself." Id.

at 541-42.

Further, the enhancement of an interest rate under section (a)(iii) typically

requires some unusual circumstances. Litton Industries, Inc. v. IMO Industries,

Inc., 200 N.J. 372, 390-91 (2009).

Moreover, in Allendale, the court affirmed a trial judge's setting the

interest rate pursuant to Rule 4:42-11(a)(ii). 424 N.J. Super. at 540-42. The

court noted that the trial judge rejected a compounded interest rate and that

"[t]he jury maximized the amount of compensation, gave the defendant every

dollar it sought through its experts, and in fact awarded $250,000 more than the

defense counsel asked for in his summation." Id. at 541.

Here, we conclude that the trial court properly exercised its discretion in

setting the interest rate pursuant to Rule 4:42-11(a)(ii). Initially, there were no

"unusual circumstances" in the instant matter that would warrant enhancing the

interest rate. See Litton Industries, 200 N.J. at 390-91. Defendants argued that

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the delay in the case from the April 2010 filing to the January 2017 trial

constitutes an unusual circumstance. However, as the trial court found, there is

often delay in trial matters and both parties conceded that they were each

responsible for delays.

Additionally, as in Allendale, the jury here "maximized the amount of

compensation" and awarded defendants above and beyond the market value

opined by the Township's appraiser. See 424 N.J. Super. at 541. Thus, the trial

court properly exercised its discretion in setting the interest rate in accordance

with Rule 4:42-11(a)(ii), without the enhancements of Rule 4:42-11(a)(iii).

To the extent any arguments are not addressed herein, they are without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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