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City of Long Branch v. Strahlendorf

A-2009-03T5 (N.J. Super. App. Div. 2004) (Unpublished)

EMINENT DOMAIN; JUDGMENTS—The time within which to appeal a jury’s condemnation award is not tolled by a delay in being served with the final judgment because the time to appeal runs from the date of the jury’s verdict and not frm entry of the judgement.

In a condemnation action, a jury awarded an owner compensation for the taking of his property. Final judgment was entered on July 24, 2003, but the municipality did not file its notice of appeal until November 6, 2003, over one hundred days later. Court Rules 2:4-1 and 2:4-4 provide that an appeal must be filed within seventy-five days. Despite this, the municipality argued that the appeal was timely for three reasons: because a post-judgment motion filed in the lower court tolled the time to appeal; because the Appellate Division previously found the appeal timely; and because the owner failed to serve a copy of the final judgment upon the municipality’s attorney for a significant period of time after its entry.

According to the Appellate Division, R. 4:49-1 requires that, to be timely, a motion for a new trial must be filed no later than twenty days after the return of a jury verdict. The municipality filed its motion approximately three months after the verdict was handed down. Therefore, it was time-barred, and its filing could not toll the time to appeal. Knowing this, the municipality argued that its motion was also based on R. 4:49-2, which provides that a motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than twenty days after service of the judgment or order upon all parties by the party obtaining it. Accordingly, it claimed that since it was not served with the final judgment until September 22, 2003, its motion was timely. The Court held that under R. 4:49-2, had the motion been filed by October 10, 2003, it would have been timely and would have tolled the time within which an appeal could be filed. Nonetheless, the Court concluded that the motion was not based on R. 4:49-2, but rather on R. 4:49-1.

A motion to amend a judgment pursuant to R. 4:49-2, does not call a jury verdict into question but is used to question when a judgment, entered as a result of a jury verdict, should be amended or altered because it was not faithful to the verdict. Here, the Court pointed out that the municipality’s post-judgment motion did not question the accuracy or correctness of the judgment’s memorialization of the jury’s verdict; instead, the municipality only argued that the jury’s verdict was tainted by improper factual contentions or erroneous evidence rulings made during the course of the trial. Therefore, the municipality’s motion could not be considered to be a R. 4:49-2 motion and, as a result, its filing could not toll the time to file an appeal.

The municipality also argued that the Court previously determined that its appeal was timely. Although that was true, the Court stated that its prior ruling was not conclusive. It was only interlocutory and was subject to revision at any time before the entry of the Court’s final judgment.

The Court also rejected the municipality’s argument that the owner’s failure to serve a copy of the final judgment upon the municipality’s attorney for a significant period of time after its entry also caused tolling because a motion for a new trial is triggered by the jury’s verdict and not by the entry of the judgment. Lastly, the Court found that the municipality’s attorney was aware of the proposed final judgment submitted by the owner’s attorney on July 18, 2003, and even argued to the lower court why the owner’s proposed order should have been modified. Therefore, entry of the final judgment on or about July 24, 2003 should have been no surprise to the municipality. The submission of the proposed order a week earlier should have alerted the municipality that its time to appeal would soon be triggered.

Even at that, the municipality’s attorney received a copy of the final judgment on September 22, 2003, well within the extension period allowed by R. 2:4-4(a). Despite this, the municipality delayed in filing its notice of appeal until November 6, 2003. That was well beyond the maximum seventy-five day period for filing an appeal of a civil judgment. Therefore, because its notice of appeal was not timely filed, the Appellate Division dismissed the municipality’s appeal.


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