Case Law Summaries

Casino Reinvestment Development Authority v. Marks

• Opinion Date: July 6, 2000
• Real Property Law
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CONDEMNATION; ATTORNEYS FEES—Court Rules do not mandate the award of attorneys’ fees in condemnation cases even if the condemning authority rejects an offer from a condemnee and the court awards a higher sum.

The Casino Reinvestment Development Authority condemned a property and a jury determined the property’s fair market value. The judgment included counsel fees to the property owner. On appeal, the condemning authority argued that the lower court’s award of counsel fees under Rule 4:58 “contravened the legislative scheme of compensation set forth in the Eminent Domain Act.” Rule 4:58, commonly called the “offer of a judgment rule,” permits attorneys’ fees to a claimant who obtains a verdict determination at least as favorable as the best one rejected prior to trial. Under case law, attorneys’ fees and expenses are not embraced within the amount included in determining just compensation for the taking of land. According the United States Supreme Court, “such compensation is a matter of legislative grace rather than constitutional command.” Further, as the Court pointed out, there is no statute or rule providing for the allowance of attorneys’ fees in condemnation cases in New Jersey, and “[a]bsent express authorization, [the Court saw] nothing in this case requiring [it] to engraft an exception to the general principle that ‘sound judicial administration [is] best ... advanced by having each litigant bear his own counsel fee.’” Further, the Court noted that an amendment to the legislative act had been proposed and withdrawn whereby a condemnee would be entitled to attorneys’ fees when a verdict exceeds by twenty-five percent the amount of money placed in deposit by the condemnor. Finally, the Court could not find a definition within Rule 4:58 of a “claimant” and it found that the condemnee is not a claimant in the context of a condemnation case. Rather, it is the “condemnor who is asserting the right of condemnation.” While the New Jersey Supreme Court could exercise its rule making power to provide for attorneys’ fee in action involving condemnation, inasmuch as it had not done so, the condemnee was not entitled to attorneys’ fees and the decision of the lower court was reversed in that regard.

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