State of New Jersey, by the Commissioner of Transportation v. Shalom Money Street, L.L.C., A-4205-11T2; Appellate Division; opinion by Espinosa, J.A.D.; decided and approved for publication June 25, 2013. Before Judges Graves, Espinosa and Guadagno.On appeal from the Law Division, Bergen County, L-2269-09. DDS No. 26-2-0419 [9 pp.]

In this condemnation case, both the state and the property owner filed appeals from the commissioners' award fixing just compensation for a temporary taking. The issue is whether the trial court may reinstate the commissioners' award over the parties' objection after dismissing their appeals sua sponte.

Defendant Shalom Money Street, L.L.C., owns a commercial property on Route 46 in Lodi that measures 0.728 acres. In March 2009, the state filed a complaint in condemnation and declaration of taking for a temporary construction easement on Shalom's property to address the fact that driveways on Shalom's property did not conform to the state highway access code.

In May 2009, Shalom withdrew its objections to the state's right to take and a consent order was entered, stating the state had duly exercised its power of eminent domain as to the property and appointing three commissioners to fix just compensation for the taking. Following a hearing, the commissioners issued a report in which they set the amount of just compensation as $9,000. Both the state and Shalom filed notices of appeal from that award.

The state filed a motion in limine to bar Shalom's expert opinion on the value of the taking, arguing that Shalom's expert had appraised the entire 0.728 acres of Shalom's property and not the property actually taken.Shalom also filed a motion to bar the state's expert opinion, contending that it was a net opinion. The court granted both motions, and noted that the parties needed expert testimony to try the only issue — the value of the easement taken. The state and Shalom jointly requested an adjournment of the trial for 100 days to permit each to retain experts and schedule depositions. The court denied the adjournment request and asked the parties to submit briefs on why it should not enter an order confirming the award of the condemnation commissioners.

Relying on N.J.S.A. 20:3-12(h), both the state and Shalom argued that the commissioners' award can only become a final judgment if no appeal is taken. They argued further that, because the appeal is a trial de novo, the appeal rendered the commissioners' award void and since the award ceased to exist once their appeals were filed, the court could not reinstate the award as a final judgment. Both the state and Shalom submitted that, without the jury trial required by their appeals, the property owner would be denied the just compensation guaranteed under N.J. Const. art. I, § 20.

The court rejected the parties' arguments. Relying on State v. Tenenbaum, and State v. Stark, the court concluded that, on the dismissal of an appeal, judgment may be entered in the amount of the commissioners' award. Finding that without expert testimony, the trial could not proceed, the court entered judgment dismissing the appeals and fixing the condemnation commissioners' award of $9,000 as compensation to Shalom.

In this appeal, the state argues that the trial court erred in transforming the commissioners' award into a judgment of just compensation and abused its discretion in denying its motion for an adjournment.

Held: Where both the state and the property owner filed appeals from the commissioners' award fixing just compensation for a temporary taking, the trial court may not reinstate the commissioners' award over the parties' objection after dismissing their appeals sua sponte.

In a condemnation action, there are two alternatives for the entry of final judgment fixing compensation to be paid. Pursuant to N.J.S.A. 20:3-12(h), the commissioners' award becomes a final judgment if it is not objected to within 60 days of its filing. Plainly, an appeal constitutes an objection to the award and, as a result, the commissioners' award does not become a final judgment. When an appeal is filed, a trial de novo is required. At the trial, the commissioners' award is entitled to no deference; it may not even be admitted into evidence. Following the trial, the amount of the judgment on the appeal will be entered as a final judgment.

Because the commissioners' award only becomes a final judgment if no timely objection is made, the filing of the appeal renders the commissioners' award "nugatory." In short, there is no final judgment to be reinstated.

The cases relied on by the trial court here do not support a contrary view. In both Stark and Tenenbaum, the sole objection to the commisioners' award was withdrawn, thus the only impediment to the award becoming a final judgment was removed. In contrast, neither the state nor Shalom has withdrawn its objection to the award here. Although the exclusion of expert reports had a damaging impact on the ability to try the case, that fact related to the strength of the parties' cases and not to whether their objections to the award had been withdrawn. Because the commissioners' award did not become a final judgment pursuant to N.J.S.A. 20:3-12(h), or as the result of the parties withdrawing their objections to the award, the trial court erred in reinstating the commissioners' award.

The trial court's decision to bar both expert reports stripped both parties of their ability to present a case as to the just compensation to be awarded. Both parties agreed that an adjournment of 100 days would be appropriate and the court provided no reasons on the record for denying the adjournment.Therefore, the denial of the joint adjournment request was a mistaken exercise of discretion.

The appellate panel reverses and remands for entry of an order vacating the judgment and granting the adjournment request.

For appellant — Jeffrey S. Chiesa, Attorney General (Melissa H. Raksa, Assistant Attorney General, of counsel; Sharon Price-Cates, Deputy Attorney General, on the brief). Respondent Shalom Money Street, L.L.C., has not filed a brief.