                                NOT FOR PUBLICATION WITHOUT THE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-1424-16T1

JESSE D. SADEJ,

          Plaintiff,

and

CARLA SADEJ,

          Plaintiff-Appellant,

v.

ANTHONY X. ARTURI, JR., ESQ.,
BARRY S. GUAGLARDI, ESQ., and
ARTURI, D'ARGENIO, GUAGLARDI
& MELITI, LLP,

     Defendants-Respondents.
___________________________________

                    Argued March 7, 2019 – Decided May 7, 2019

                    Before Judges Simonelli, Whipple and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-2077-12.
              Mitchell B. Seidman argued the cause for appellant
              (Seidman & Pincus, LLC, attorneys; Mitchell B.
              Seidman and Andrew J. Pincus, on the briefs).

              Walter F. Kawalec, III, argued the cause for
              respondents (Marshall Dennehey Warner Coleman and
              Goggin, LLC, attorneys; Walter F. Kawalec, III, and
              Howard B. Mankoff, on the brief).

PER CURIAM

        In this legal malpractice matter, plaintiff Carla Sadej appeals from various

orders and a final judgment entered after a jury verdict in favor of defendants

Barry S. Guaglardi, Esq. and Arturi, D'Argenio, Guaglardi & Meliti, LLP

(collectively defendants). We affirm.

                                          I.

                              The Underlying Action

        In August 2001, plaintiff and her husband, Jesse Sadej (Sadej),1 filed five

pages of plans with the Borough of Seaside Park (Borough) outlining the scope

of the improvements they sought to make on their eight-bedroom Victorian

home. The improvements included expanding the house and existing detached

garage, connecting the expanded garage to the house, and constructing an in-

ground pool.



1
    Sadej was a plaintiff in this matter but does not appeal.
                                                                            A-1424-16T1
                                          2
      In August 2001, Borough zoning official Michael Marcinczyk issued a

zoning approval notice for the improvements, and Borough Construction Code

official James Erdman reviewed and approved the plans. Erdman initialed and

dated each of the five pages of the plans, wrote the words "Inspector Job Copy"

in red ink, attached the Building Department's red sticker on the first page of

one set of plans, and gave that set of plans to Sadej to be kept on site. Erdman

retained a copy of the plans for the Borough and issued a construction permit .

Thereafter, the Sadejs obtained a mortgage to pay for the improvements and

commenced construction in accordance with the approved plans.

      Approximately eight months later, on April 17, 2002, Erdman issued a

stop work order to the Sadejs for "lost zoning approval." At that point, the

Sadejs had completed approximately eighty percent of the improvements at a

cost of $268,219. The Sadejs did not stop the construction, and on April 18,

2002, the police escorted the contractors off the site.

      On May 2, 2002, Borough Administrator Joseph J. Delaney, Jr. met with

Sadej in Delaney's office. Delaney told Sadej that Erdman issued the stop work

order because the construction did not conform to the plans the Borough had on

file. Delaney also explained that the Borough's land use policy did not permit




                                                                        A-1424-16T1
                                        3
connection of a detached garage to the main dwelling because the Borough was

trying to discourage having renters in garages.

      It is undisputed that the plans the Borough had on file differed from the

set of plans Erdman gave to Sadej. The second, third, fourth, and fifth pages of

the plan the Borough had on file did not have Erdman's initials and date notations

on them, and the fifth page contained different wording and a different drawing

regarding the expansion of the garage, connection of the garage to the house,

and rear yard setback. Sadej told plaintiff that the Borough had "fraudulently

altered" the plans and Delaney had threatened Sadej by stating that a contractor

had gone bankrupt by challenging the Borough in litigation. The individual who

altered the plans was not identified, and it was not determined whether the

alteration was an intentional fraud or an innocent mistake.

      In any event, on May 8, 2002, the Borough filed a verified complaint and

order to show cause in the Chancery Division seeking to restrain the Sadejs from

any further construction, compel them to dismantle the improvements already

made without valid permits or approvals, and pay the Borough's attorney's fees

and costs. Relying on the altered plans, the Borough alleged that the Sadejs had

"substantially increased the scope, intensity, use and character" of the

improvements "from that which was shown on the original permitted plans.


                                                                          A-1424-16T1
                                        4
Specifically, it appears that the work that is being conducted may violate

Borough setback, height, area and lot coverage [but not building coverage]

requirements of its zoning ordinance." Further, Erdman alleged in a supporting

certification that the Sadejs had "substantially deviated from the plans submitted

as part of the original construction permit." Erdman attached a copy of the

altered plans, but not the original plans, to his certification.

      On May 9, 2002, the court issued an order temporarily restraining the

Sadejs from any further construction. That same day, Sadej sent a letter to

Delaney, the Borough mayor and council, and the police chief alleging his plans

had been fraudulently altered to support the Borough's position that the Sadejs'

construction activities constituted building code and zoning violations.

      The Sadejs retained defendants to represent them in the underlying action.

In a May 16, 2002 order, the court granted the Sadejs' application to lift the

temporary restraints, but advised them "that any continued construction on the

site shall proceed at [their] peril."

      Approximately one year later, on May 28, 2003, defendants, on the Sadejs'

behalf, filed an answer to the Borough's complaint and asserted separate

defenses, including promissory and equitable estoppel. The Sadejs also asserted

a counterclaim against the Borough for declaratory judgment, promissory


                                                                           A-1424-16T1
                                          5
estoppel/detrimental reliance and fraud. Defendants did not file a notice of tort

claim with the Borough pursuant to the New Jersey Tort Claims Act, N.J.S.A.

59:1-1 to 12-3. The Borough filed an answer to the counterclaim and asserted

separate defenses, including the two-year statute of limitations (SOL) and the

Sadejs' failure to file a notice of tort claim.

      On October 3, 2003, the Sadejs filed an amended answer, affirmative

defenses, and an amended counterclaim reasserting claims against the Borough

for declaratory judgment and promissory estoppel/detrimental reliance, and

adding a claim under 42 U.S.C. § 1983 for the deprivation of their property

rights. The Sadejs did not reassert a fraud claim.

      In three separate May 10, 2004 orders, the court granted the Sadejs' motion

for partial summary judgment, finding the improvements did not violate the

Borough's zoning ordinance regarding building height, rear yard setback, and

side yard setback. However, the judge also granted the Borough's motion for

partial summary judgment, finding the improvements violated the building

coverage zoning ordinance – a violation the Borough did not assert in its

complaint. The court found the building, which it determined included the

existing attached porch, violated the maximum allowable building coverage.




                                                                         A-1424-16T1
                                          6
The court ordered the building coverage zoning violation to proceed to trial

along with the Sadejs' separate defenses and counterclaim.

      On May 13, 2004, five days after the SOL expired, the Sadejs filed a

second amended counterclaim against the Borough and a third-party complaint

against the Borough's mayor and council, Erdman, Marcinczyk, and Delaney,

both individually and as municipal officials, for declaratory judgment, estoppel,

violation of 42 U.S.C. § 1983, fraud, malicious prosecution, and malicious abuse

of process.

      The Borough and municipal officials filed a motion for summary

judgment and to dismiss the second amended counterclaim and third-party

complaint based on the SOL and the Sadejs' failure to file a notice of tort claim.

Thereafter, on July 9, 2004, the Sadejs filed a notice of tort claim with the

Borough.

      The case was transferred to the Law Division, where the court granted the

motion and dismissed the second amended counterclaim and third-party

complaint with prejudice. The court found the asserted causes of action were

barred by the two-year SOL because they accrued prior to May 9, 2002, the date

of both Sadej's letter to Delaney, and the Borough mayor, council and police




                                                                          A-1424-16T1
                                        7
chief and the date the Chancery court issued the restraining order. The court

also found the Sadejs failed to timely file a notice of tort claim with the Borough.

      The court subsequently denied the Sadejs' motion for reconsideration

making the additional finding that the Sadejs failed to establish a prima facie

case of malicious prosecution. The court determined the only remaining issue

for trial was whether the Borough was estopped from enforcing the building

coverage zoning violation.

      The Sadejs subsequently moved for summary judgment, arguing the

Borough was estopped from enforcing the building coverage zoning violation

because they had, in good faith, relied on the building permit and zoning

approvals issued by the Borough in making the improvements.              The court

granted the motion and dismissed the Borough's complaint. The court found the

Borough was estopped from enforcing the building coverage zoning violation in

light of the court's earlier ruling permitting the Sadejs to make the improvements

to the garage as a pre-existing nonconforming use. The court explained that the

Borough was estopped from arguing that the Sadejs had to remove the existing

porch because "[the Borough], in essence, permitted [the Sadejs] to build a

garage which caused the [building] coverage problem." Thus, the court ordered

the Borough to immediately reissue the building permit and zoning approvals,


                                                                            A-1424-16T1
                                         8
and authorized the Sadejs to complete the improvements without any further

permits or approvals from the Borough.

      The Sadejs filed a motion to for frivolous litigation sanctions under the

Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1, alleging the Borough filed its

complaint despite knowing the fraudulent nature of the building plans on which

it relied. The court denied the motion finding that municipalities are not subject

to liability under the statute.

      The parties appealed from various orders. We affirmed the dismissal of

the Sadejs' fraud claims against the municipal officials as time-barred under the

SOL and the dismissal of their claims against the Borough for failure to timely

file a notice of tort claim. Borough of Seaside Park v. Sadej, No. A-6596-06

(App. Div. July 17, 2009) (slip op. at 22-23).       However, we reversed the

dismissal of the malicious abuse of process claim against the municipal officials,

finding it was timely because the claim did not accrue until June 9, 2007, when

the court entered the order granting the Sadejs' motion for summary judgment.

Ibid. Nonetheless, we affirmed the dismissal of the malicious prosecution claim

against the Borough, not for failure to timely file a notice of tort claim, but

because a municipality cannot entertain malice as a public corporation. Id. at

18.


                                                                          A-1424-16T1
                                        9
      We also reversed and remanded the frivolous litigation sanction issue to

the trial court for consideration of whether the Sadejs complied with the safe

harbor provision of Rule 1:4-8(b)(1). Id. at 42. We directed the court to conduct

a practicality analysis as to whether the circumstances require strict adherence

to Rule 1:4-8, and consider whether the Borough's conduct fell within the

statutory definition of frivolous in N.J.S.A. 2A:15-59.1(b). Ibid. We also

directed that if the court found, after consideration of the above issues, that the

Sadejs were entitled to a frivolous litigation counsel fee award against the

Borough, the court should revisit the question of whether the Borough was

immune from liability. Ibid.

      The Sadejs retained a new attorney to represent them on remand. Their

malicious abuse of process claim against the municipal officials was tried before

a jury. At the conclusion of the trial, but before the jury announced the verdict,

they accepted a settlement offer of $125,000, apparently with the understanding

that they would pursue a legal malpractice action against defendants.

                             The Malpractice Action

      The trial in the malpractice action began in August 2016. By that time,

the Sadejs were divorced and plaintiff had received the property in equitable

distribution. See Sadej v. Sadej, No. A-2347-10 (App. Div. May 16, 2012) (slip


                                                                           A-1424-16T1
                                       10
op. at 11). Plaintiff testified at the trial as to her damages, but Sadej did not

testify.

       Plaintiff's expert, William Michelson testified that defendants deviated

from the standard of care in failing to: (1) timely file a notice of tort claim as to

the counterclaim against the Borough for promissory estoppel; (2) timely assert

claims against the municipal officials for declaratory judgment, estoppel, and

deprivation of property rights under 42 U.S.C. § 1983; and (3) assert claims

against the Borough and municipal officials for inverse condemnation and

deprivation of property rights under the United States and State Constitutions.

Michelson conceded, however, that there was no viable basis for the Sadejs'

fraud claim.

       Michelson opined that the Sadejs would have been successful in pursuing

the above claims. Regarding the claims for deprivation of property rights under

the United States and State Constitutions, he testified there was a viable claim

for a partial taking and for interference with the enjoyment of the Sadejs'

property. He explained that the Borough's action violated the Sadejs' "rights, it

was a taking, a partial taking or temporary taking, of their property interest and

it's also been described as an estoppel." He opined that damages included the




                                                                             A-1424-16T1
                                        11
stop work order, the demand to dismantle the completed improvements, and the

length of time the Sadejs could not proceed with the work.

      Michelson also asserted that the dismissal of these claims was the

proximate cause of the Sadejs' damages. He explained that if the claims had not

been dismissed, the jury in the underlying action would have returned a verdict

in the Sadejs' favor and they would have had a stronger case, which would have

been reflected in the verdict or settlement.       He admitted, however, that

"[n]obody could know" whether the Sadejs would have actually achieved a

verdict in excess of $125,000, or would have been able to negotiate a higher

settlement. He also admitted that on remand, the Sadejs could have recovered

damages for loss of rent and emotional distress, counsel fees, and punitive

damages under the malicious abuse of process claim.

      Lastly, Michelson opined that defendants deviated from the standard of

care in failing to serve a "Safe Harbor" notice under Rule 1:4-8(b)(1) in pursuing

their claim for frivolous litigation sanctions against the Borough. Michelson

testified that this deviation proximately damaged the Sadejs because it made it

impossible for them to recover the approximately $287,000 in counsel fees they

incurred in the underlying action.




                                                                          A-1424-16T1
                                       12
      Defendants' malpractice expert, Brian Molloy, conceded that defendants

deviated from the standard of care in failing to timely file a notice of tort claim

and in failing to timely file the counterclaim. However, he opined that these

deviations did not proximately cause the Sadejs any damages because on remand

they were able to pursue both their claim for malicious abuse of process against

the municipal officials and their claim for frivolous litigation sanctions. He

explained that the same conduct (the Borough filing suit based on the altered

plans) gave rise to different causes of action, and the Sadejs could not recover

double damages.

      Defendants' land use expert, Steven Tripp, opined that the Sadejs did not

have a viable claim for a temporary taking because they were able to use the

property throughout the underlying litigation.

      The jury found that the Sadejs proved defendants deviated from the

applicable standard of care by not timely filing affirmative claims against the

Borough or municipal officials for promissory estoppel, violation of 42 U.S.C.

§ 1983, and violation of the Sadejs' property rights under the State Constitution.

However, the jury found the deviations did not proximately cause the Sadejs to

suffer damages.




                                                                           A-1424-16T1
                                       13
      On August 26, 2016, the court entered final judgment in defendants' favor

and dismissed the complaint with prejudice. On November 9, 2016, the court

entered an order denying the Sadejs' motion for a new trial on damages and

causation or for judgment notwithstanding the verdict (JNOV). This appeal

followed.

                                       II.

      The Sadejs moved prior to the malpractice trial for partial summary

judgment on their claim that defendants committed malpractice by failing to

timely file a notice of tort claim as to the claim against the Borough in the

underlying action for promissory estoppel. At the close of all evidence, the

Sadejs moved for judgment under Rule 4:40-1 on liability and damages on their

claim that defendants committed malpractice in failing to timely prosecute their

claim against the Borough for promissory estoppel.

      In denying the motion for partial summary judgment, the court found that

although the Sadejs were successful in pursuing an estoppel defense in the

underlying action, this did not mean they would have succeeded on the

affirmative promissory estoppel claim, particularly on the issue of proximate

cause. The court also found it was a jury question as to what the Sadejs' success

on the estoppel defense meant in terms of causation and damages on the


                                                                         A-1424-16T1
                                      14
affirmative promissory estoppel claim. In denying the motion for judgment

under Rule 4:40-1, the court held that the liability and damages issues should go

to the jury.

      On appeal, plaintiff contends that the court erred in denying the motions.

Despite the jury verdict in the malpractice action, she argues that because she

was successful on her estoppel defense in the underlying action, it follows that

she would also have been successful under those same factual circumstances on

the affirmative promissory estoppel claim. We disagree.

      Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Conley v. Guerrero, 228 N.J. 339, 346

(2017). Thus, we consider, as the trial judge did, "whether the evidence presents

a sufficient disagreement to require submission to a jury or whether it is so one-

sided that one party must prevail as a matter of law." Liberty Surplus Ins. Corp.

v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995)). Summary judgment

must "be granted 'if the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law.'" Templo Fuente De Vida


                                                                          A-1424-16T1
                                       15
Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199 (2016) (quoting R. 4:46-

2(c)).

         "To defeat a motion for summary judgment, the opponent must 'come

forward with evidence that creates a genuine issue of material fact.'" Cortez v.

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "If

there is no genuine issue of material fact, we must then 'decide whether the trial

court correctly interpreted the law.'"       DepoLink Court Reporting & Litig.

Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting

Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007)). We

review issues of law de novo and accord no deference to the trial judge's legal

conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).

         Under Rule 4:40-1, "[a] motion for judgment . . . may be made by a party

. . . at the close of the evidence offered by an opponent." The standard of review

is the same as that for a motion for Rule 4:37-2(b) involuntary dismissal and

Rule 4:40-2 JNOV. Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on

R. 4:40-2 (2019).

         In deciding the motion, the court "must accept as true all evidence

supporting the position of the party defending against the motion and must


                                                                          A-1424-16T1
                                        16
accord that party the benefit of all legitimate inferences which can be deduced

[from the evidence]." Besler v. Bd. of Educ. of W. Windsor-Plainsboro Reg'l

Sch. Dist., 201 N.J. 544, 572 (2010) (alteration in original) (quoting Lewis v.

Am. Cyanamid Co., 155 N.J. 544, 567 (1998)). If reasonable minds could reach

different conclusions, the motion must be denied. Rena, Inc. v. Brien, 310 N.J.

Super. 304, 311 (App. Div. 1998). If the evidence is so one-sided, however, that

one party must prevail as a matter of law, then a directed verdict is appropriate.

Frugis v. Bracigliano, 177 N.J. 250, 270 (2003). The trial judge may not

consider issues of witness credibility in making the determination. See Rena,

310 N.J. Super. at 311. We utilize the same standard as the trial court. Frugis,

177 N.J. at 269. Applying the above standards, we discern no reason to reverse.

      To establish a claim of legal malpractice, the plaintiff must prove: (1) the

existence of an attorney-client relationship creating a duty of care upon the

attorney; (2) the breach of that duty; and (3) damages proximately caused by

that breach. Conklin v. Hannoch Weisman, 145 N.J. 395, 416 (1996) (quoting

Lovett v. Estate of Lovett, 250 N.J. Super. 79, 87 (Ch. Div. 1991)). There is no

dispute that the first two elements were met here. At issue is the third element,

proximate causation.




                                                                          A-1424-16T1
                                       17
      It is well established that "[t]he issue of causation is ordinarily left to the

factfinder." Townsend v. Pierre, 221 N.J. 36, 59 (2015). It may, however, "be

removed from the factfinder in the highly extraordinary case in which reasonable

minds could not differ on whether that issue has been established." Id. at 60

(quoting Fluehr v. City of Cape May, 159 N.J. 532, 543 (1999)).                Here,

reasonable minds clearly differed in that ultimately the jury found the Sadejs

failed to establish the third element. That finding by the jury, which is amply

supported by the credible evidence, forecloses plaintiff's argument on appeal

that the judge erred in denying the motion for partial summary judgment.

      For the sake of completeness we address additional reasons why the denial

of partial summary judgment was proper. "Where . . . the claim of malpractice

alleges a failure to meet a time-bar, 'a client must establish the recovery which

the client would have obtained if malpractice had not occurred.'" Garcia v.

Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 358 (2004) (quoting

Frazier v. N.J. Mfrs. Ins. Co., 142 N.J. 590, 601 (1995)). "For example, if a

lawyer misses a statute of limitations and a complaint is dismissed for that

reason, a plaintiff must still establish that had the action been timely filed it

would have resulted in a favorable recovery." Conklin, 145 N.J. at 417. "The

most common way to prove the harm inflicted by such malpractice is to proceed


                                                                             A-1424-16T1
                                        18
by way of a 'suit within a suit' in which a plaintiff presents the evidence that

would have been submitted at a trial had no malpractice occurred." Garcia, 179

N.J. at 358. That "approach aims to clarify what would have taken place but for

the attorney's malpractice." Ibid.

      Ordinarily, the measure of damages is what result the client would have

obtained in the absence of attorney negligence. Ibid. To prove such injury, "the

client must demonstrate that he or she would have prevailed, or would have won

materially more . . . but for the alleged substandard performance." Lerner v.

Laufer, 359 N.J. Super. 201, 221 (App. Div. 2003). "When plaintiff has settled

the underlying action, the measure of damages is the difference between the

settlement and the amount of money that would have been obtained by

judgment." Kranz v. Tiger, 390 N.J. Super. 135, 146 (App. Div. 2007).

      Plaintiff argues it was error to deny her motion because it was a "foregone

conclusion" that she would have prevailed on the affirmative promissory

estoppel claim based on the success she achieved on the estoppel defense.

However, the court in the underlying action did not, as plaintiff argues,

adjudicate the estoppel defense on the same basis as an affirmative claim for

promissory estoppel.




                                                                         A-1424-16T1
                                      19
      The Sadejs had obtained approvals to construct improvements to the

existing main dwelling and garage. The record does not show the Sadejs sought

to make any improvements to the existing porch. Based on the altered plans,

the Borough issued a stop work order and brought suit against the Sadejs

alleging that the work violated the setback, height, area and lot coverage

requirements of the zoning ordinance.       The court in the underlying action

granted the Sadejs' motion for partial summary judgment, not on the basis of

estoppel, but because the court found there was no building height, rear yard and

side yard setback zoning violations. The court also granted the Borough's

motion for partial summary judgment finding the building, which included the

expanded garage and the porch, exceeded the allowable building coverage.

      Thereafter, the court found the Borough was estopped from enforcing the

remaining claim for a building coverage zoning violation, not because the Sadejs

had relied on the Borough's permits and approval in making the improvements,

but rather in light of the court's prior ruling permitting the improvements to the

garage as a pre-existing nonconforming use. Thus, the court did not, as plaintiff

argues, apply "the critical elements of the defense [of] equitable estoppel to the

facts and circumstances of the Borough's conduct" and therefore it was not a




                                                                          A-1424-16T1
                                       20
"foregone conclusion" that if properly filed the Sadejs would have been

successful on their affirmative promissory estoppel claim.

      Further, equitable estoppel, asserted as a defense in the underlying action,

is a distinct legal concept from promissory estoppel, asserted as an affirmative

claim in the counterclaim. See Segal v. Lynch, 211 N.J. 230, 253-54 (2012)

(differentiating between promissory and equitable estoppel).       "Estoppel" is

listed as an affirmative defense under Rule 4:5-4. The doctrine of equitable

estoppel "is designed to prevent injustice by not permitting a party to repudiate

a course of action on which another party has relied to his detriment." Knorr v.

Smeal, 178 N.J. 169, 178 (2003). The doctrine "is based on the principles of

fairness and justice." D'Agostino v. Maldonado, 216 N.J. 168, 200 (2013).

      "To establish equitable estoppel, parties must prove that an opposing party

'engaged in conduct, either intentionally or under circumstances that induced

reliance, and that [they] acted or changed their position to their detriment.'"

Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 189 (2013) (alteration in

original) (quoting Knorr, 178 N.J. at 178). "Equitable estoppel may be invoked

against a municipality 'where interests of justice, morality and common fairness

clearly dictate that course.'" Middletown Twp. Policemen's Benevolent Ass'n




                                                                          A-1424-16T1
                                      21
Local No. 124 v. Twp. of Middletown, 162 N.J. 361, 367 (2000) (quoting Gruber

v. Mayor & Twp. Comm. of Raritan, 39 N.J. 1, 13 (1962)).

      Our courts "have applied equitable estoppel to prevent municipalities from

revoking valid permits or approvals from builders who had justifiably relied on

those permits or approvals to their substantial detriment." Palatine I v. Planning

Bd. of Montville, 133 N.J. 546, 560 (1993). Nonetheless, the doctrine is "rarely

invoked against a governmental entity." Twp. of Middletown, 162 N.J. at 367

(quoting Wood v. Borough of Wildwood Crest, 319 N.J. Super. 650, 656 (App.

Div. 1999)).

      In contrast, promissory estoppel is often asserted as a claim or

counterclaim, although it can be asserted as an affirmative defense. See Pop's

Cones, Inc. v. Resorts Int'l Hotel, Inc., 307 N.J. Super. 461, 469 (App. Div.

1998) (asserting claim for promissory estoppel seeking monetary damages). To

establish promissory estoppel, the plaintiff must "show that there has been '(1)

a clear and definite promise; (2) made with the expectation that the promisee

will rely on it; (3) reasonable reliance; and (4) definite and substantial

detriment.'" Segal, 211 N.J. at 253 (quoting Toll Bros., Inc. v. Bd. of Chosen

Freeholders of Burlington, 194 N.J. 223, 253 (2008)).




                                                                          A-1424-16T1
                                       22
      To that end, the doctrines of equitable estoppel and promissory estoppel

differ, in that "[e]quitable estoppel does not require a definite promise, but may

be invoked when there is 'conduct, either express or implied, which reasonably

misleads another to his prejudice so that a repudiation of such conduct would be

unjust in the eyes of the law.'" Id. at 254 (quoting McDade v. Siazon, 208 N.J.

463, 480 (2011)). It was thus not a "foregone conclusion" that the Sadejs would

have been successful on their affirmative promissory estoppel claim because the

basis for the estoppel defense in the underlying action differed both factually,

as set forth above, and legally from the affirmative promissory estoppel claim.

      Lastly, and significantly, not only are the doctrines legally distinct, but

the types of proof required to assert a defense of equitable estoppel and/or

promissory estoppel is different than the proofs required to assert an affirmative

promissory estoppel claim for money damages based on the doctrines. Notably,

in asserting a counterclaim against the Borough, the Sadejs had to prove they

incurred damages by reasonably relying to their detriment on the Borough's

promise (promissory estoppel) or the Borough's conduct (equitable estoppel).

See Pop's Cones, 307 N.J. Super. at 472. The Sadejs presented no proofs as to

damages, nor did they move for summary judgment on that basis, because they

were asserting the equitable doctrine as a defense, not as an affirmative claim.


                                                                          A-1424-16T1
                                       23
Thus, even if the court in the underlying action had found the Borough was

estopped from enforcing the building coverage zoning violation based on the

issuance of the permits and approval, it would not follow that the Sadejs were

entitled to judgment in the malpractice action.

      Moreover, as the court in the malpractice action properly found, there was

a genuine issue of material fact as to whether defendants' conduct was a

proximate cause of economic damages sustained by the Sadejs. In fact, the jury

later found the Sadejs failed to meet their burden of proof on this issue—a

verdict amply supported by the evidence. The Sadejs were required to establish

that if defendants had timely filed a notice of tort claim as to their affirmative

promissory estoppel claim, the Sadejs would have been able to settle the

underlying action for more than $125,000. They failed to do so.

      However, it was undisputed that the Sadejs were barred only from

completing the improvements for seven days and were not compelled to remove

any of the completed improvements. They also were not deprived of the use of

the property in that, during the course of the litigation they used the home for

family vacations as planned, completed the majority of the improvements,

refinanced the home for $1.2 million, and received $110,400 in rental income

even though they had not intended to rent out the property. At best, the Sadejs


                                                                          A-1424-16T1
                                       24
established that they completed some of the improvements at their "peril," and

did not complete the improvements to the garage; however, there was no

evidence as to how much value the improvement to the garage would have added

to the property or how the Sadejs intended to use the improved space. Thus, the

court did not err in denying the motion for partial summary judgment because

the facts supported a verdict in defendants' favor. For all of these reasons, the

court also did not err in denying plaintiff's motion for judgment under Rule 4:40-

1.

                                       III.

      Plaintiff contends as plain error that the court erred in charging the jury

on the issue of "taking" without compensation in violation of the United States

and State Constitutions. She argues the charge misstated the law and defendants

waived their right to the charge and abandoned the issue of a partial taking. She

also argues the court erred in denying the motion for a new trial on this basis.

We reject these arguments.

      Prior to the trial in the malpractice action, the parties each submitted

proposed jury charges. Neither party included a proposed charge on partial

taking. Thereafter, the issue of whether the Borough's actions constituted a

partial taking evolved during the course of the trial. For example, plaintiff


                                                                          A-1424-16T1
                                       25
sought to admit an appraiser's testimony as to the value of the property in

November 2011 ($1.29 million) and April 2015 ($1.134 million), in support of

her claim of a complete taking, and as to the amount of rental income she could

have received between 2002 and 2007, in support of her partial taking claim.

      Defendants objected based on relevancy because plaintiff did not lose the

entire value of the property, and based on hearsay because the appraiser simply

stated in his report that "he called around to a bunch of different realtors" to

ascertain how much rental income plaintiff could derive from the property.

Plaintiff's counsel admitted, "there wasn't a full loss of value" in this case but

argued he wanted to elicit testimony from the appraiser as to the loss of value in

measuring damages.

      The court barred the appraiser from testifying as to the value of the

property in 2011 and 2015 based on relevancy, barred the appraiser from

testifying as to the rental value based on hearsay, and dismissed plaintiff's claim

that there was a complete taking of the property. However, the court permitted

plaintiff to call realtors to testify as to the rental values. Plaintiff did not call

any realtors and instead relied on her own testimony as to the rents she received

in 2009, 2014, and 2015.




                                                                             A-1424-16T1
                                        26
      At the close of plaintiff's case, the court denied defendants' motion to

dismiss the loss of rent claim. The court found that although plaintiff testified

she did not intend to lease the property, that was not the end of the inquiry, as

the issue was not whether she intended to lease, but rather the damages for a

partial taking should be measured. The court noted that case law indicated a

determination can be made by looking at the difference in the rental value with

and without the carriage house and/or garage, and the jury would have to make

that determination.

      At the close of all evidence, the court granted defendants' motion to

dismiss the Sadejs' claim that defendants deviated from the standard of care in

failing to pursue a claim against the Borough for inverse condemnation .

However, the court denied defendants' motion to dismiss the claim that they

deviated in failing to timely file a notice of tort claim as to the 42 U.S.C. § 1983

and State constitutional takings claims.       The judge found that an inverse

condemnation claim

            requires more than simply a partial taking. I think it
            requires . . . a taking of substantially all of the property
            and in this case there seems to be no dispute . . . that
            there was not . . . a taking of substantially all of the
            property. . . . [I]f there was a taking, it was only with
            respect to the garage, and . . . I don't mean to minimize
            it but I don't think it rises to the level of inverse
            condemnation.

                                                                            A-1424-16T1
                                        27
      The court conducted an informal charge conference on August 15, 2016.

On August 16, 2016, immediately prior to closing arguments, defense counsel

asked the court to charge the jury on a partial temporary taking "as to the

elements necessary to prove that claim, both for liability and damages ." The

Sadejs' counsel responded he had "no substantive objection to it, so that if

[defense counsel] wants to write something up, [he'll] be glad to consider it."

      That same morning, defense counsel submitted the following request to

charge, which the Sadejs' counsel, but not the court, reviewed prior to closing

arguments:

             There is a claim for a partial temporary taking. This is
             the basis of the [42 U.S.C. § 1983] claim and the [S]tate
             constitutional claims. To prove that there was a
             temporary partial taking, you must find that [plaintiffs]
             were deprived of all or substantially all of the beneficial
             use of the property. This is not limited to the addition
             [the garage]. It refers to all of the property.

             Just compensation for a temporary partial taking must
             be based on the fair market value of the owners' loss,
             calculated by looking at the difference between the
             value of the property before and after the taking.

      During closing arguments, defense counsel stated that the Sadejs had to

prove they had been "deprived of all or substantially all of the economic value

of the property during the time at issue here[,]" and argued that they presented


                                                                           A-1424-16T1
                                        28
no evidence as to "the difference in the value before and after the temporary

taking," or the loss of rent. The Sadejs' counsel objected and requested a

curative instruction.   The judge issued a curative instruction that defense

counsel's view of the law may not be accurate, and that the court would instruct

the jury on the law.

      During closing argument, the Sadejs' counsel argued they were entitled to

an award "for the temporary partial taking of their property."             Counsel

maintained that lost rent was "just a mechanism to measure the loss of use of the

property whether it's a complete taking or a partial taking. . . ." He argued that

the jury

            should award some amount for loss of use, lost rent,
            only for the five years while they were living in peril of
            having to dismantle. Once the [B]orough's case was
            over, we do not contend that there are any damages that
            should be awarded in this trial for that. So, for loss
            use/rent . . . I'm just going to note the rent amounts . . .
            which is [in] . . . the range of $5,000 [per week] until it
            got up to $7400 [per week].

                   And it's up to you as jurors to do the allocation to
            the extent you find it appropriate as to what portion of
            the rent is attributable to the portion of the house that
            they lost the use of. Whatever allocation you feel is or
            is not appropriate, you should do. And then based on
            that, you have the numbers to do the calculation. . . .
            [The house] was rented on a weekly basis throughout
            the season, during the season when it was rented. And


                                                                           A-1424-16T1
                                       29
            so, we ask you do that calculation for five years that
            they lived in peril of having to dismantle.

      After closing argument, the court overruled defendants' request to charge,

and instead, based on the factors set forth in Penn Central Transportation

Company v. City of New York, 438 U.S. 104, 124-26 (1978), as adopted in

Mansoldo v. State of New Jersey, 187 N.J. 50, 58 (2006), proposed to charge as

follows:

            This is a claim for a partial temporary taking. This is
            the basis of the [42 U.S.C. §] 1983 claim and the [S]tate
            constitution . . . claims. To prove that there was a
            temporary partial taking plaintiffs must show that there
            was a diminishment in the rental value of the property
            during the period from April 2002 to July 2007. Just
            compensation for a partial temporary taking can be
            based upon the difference in rental value of the property
            both with and without the carriage house. You . . . are
            to determine if the plaintiffs have shown the difference
            in the rental value.

      The Sadejs' counsel had no objection and said the charge was satisfactory.

Defense counsel objected, stating:

            rental value is not a measure of the damages in a partial
            taking. The jury should be instructed that to measure
            the damages in a partial temporary taking there needs
            to be testimony which would have established the value
            of the property before the partial taking and during the
            temporary taking. The jury should be further instructed
            that no such evidence was offered.



                                                                        A-1424-16T1
                                      30
      The court overruled the objection, acknowledging that it had barred the

appraiser from testifying as to the fair market value of the property as of

particular dates. Thereafter, the court charged the jury without objection as

follows:

           Plaintiffs specifically claim that the Borough or its
           officials violated their Fifth Amendment Right by
           taking plaintiffs' property without just compensation
           and violated their [Fourteenth] Amendment Rights by
           depriving them of their property without due process of
           law.

                This is a claim by the plaintiff for a partial
           temporary taking . . . .

                 To prove that there was a temporary partial
           taking plaintiffs must show that there was a
           diminishment in the rental value of their property
           during the time period from April 2002 to July 2007.
           Just compensation for a partial temporary taking can be
           based upon the difference in the rental value of the
           property both with and without a carriage house or
           garage that has been described in this case.

                 ....

                 Plaintiffs have the burden of proving
           compensatory damages by a preponderance of the
           evidence. Plaintiffs claim the following items of
           damages under [42 U.S.C. § 1983]: [t]he emotional and
           mental harm to plaintiffs during and after the events at
           issue including fear, humiliation, and mental anguish
           from April 2002 to Jul[y] 2007. . . . The reasonable
           value of the medical and psychological care and
           supplies that the plaintiff Carla Sadej reasonably

                                                                      A-1424-16T1
                                     31
            needed and actually obtained. The reasonable value of
            the [deprivation] of plaintiffs' property from April 2002
            until July of 2007. And the reasonable value of the
            legal services . . . .

      During deliberations, the jury initially submitted two questions: (1) "Do

we have to determine 'partial taking' of property before considering punitive

damages against Borough officials?" and (2) "[I]s showing diminishment in

rental value the only way to prove 'temporary taking?'" In response, the Sadejs'

counsel said that the court should give no further instruction other than to refer

the jury to the written jury instructions. Defense counsel argued that in response

to question two, the jury should be told "yes," because "that's the only

measurement of temporary taking we've given them." The court agreed with the

Sadejs' counsel and instructed the jury to refer to the written charge.

      The jury then asked: "[M]ust the plaintiff have shown explicit diminished

rental value of the property [under the instruction regarding the 42 U.S.C. § 1983

claim] or may we the jury use inference [as set forth in the general charge]. . .

combined with evidence?" The court advised the jury that they could draw

inference as to the diminished rental value so long as such inferences were drawn

from some evidence in the case. The Sadejs' counsel agreed with the response

and defendants' counsel objected, which objection was overruled.



                                                                          A-1424-16T1
                                       32
      In denying the Sadejs' motion for a new trial, the court rejected their

argument that the jury charge was erroneous, finding it was only after the jury

returned a verdict in defendants' favor that they raised alleged errors in the

charge.    The court further found the charge accurately described the

requirements of a temporary partial taking consistent with Mansoldo and Penn

Central, and the evidence presented during the trial.

      "It is fundamental that '[a]ppropriate and proper charges to a jury are

essential for a fair trial.'" Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 256

(2015) (alteration in original) (quoting Velazquez ex rel. Velazquez v. Portadin,

163 N.J. 677, 688 (2000)).        "[T]he jury charge should set forth in clear

understandable language the law that applies to the issues in the case." Toto v.

Ensuar, 196 N.J. 134, 144 (2008). "To accomplish these goals, the jury charge

should be tailored to the specific facts of the case." Estate of Kotsovska ex rel.

Kotsovska v. Liebman, 221 N.J. 568, 591-92 (2015). "As a general rule, [we]

will not disturb a jury's verdict based on a trial court's instructional error 'where

the charge, considered as a whole, adequately conveys the law and is unlikely

to confuse or mislead the jury, even though part of the charge, standing alone,

might be incorrect.'" Wade v. Kessler Inst., 172 N.J. 327, 341 (2002) (quoting

Fischer v. Canario, 143 N.J. 235, 254 (1996)).


                                                                             A-1424-16T1
                                        33
       The Sadejs waived their right to challenge the charge on appeal because

they did not object to it below. R. 1:7-2. "Where there is a failure to object, it

may be presumed that the instructions were adequate." State v. Morais, 359 N.J.

Super. 123, 134-35 (App. Div. 2003). "The absence of an objection to a charge

is also indicative that trial counsel perceived no prejudice would result." Id. at

135.

       In fact, not only did the Sadejs fail to object, they also expressly agreed

with the instruction and asked the court to repeat it in response to the jury

question. Under the invited error doctrine, "trial errors that 'were induced,

encouraged or acquiesced in or consented to by defense counsel ordinarily are

not a basis for reversal on appeal. . . .'" State v. Bailey, 231 N.J. 474, 490 (2018)

(quoting State v. A.R., 213 N.J. 542, 561 (2013)).

       Moreover, even if not waived, plaintiff is not entitled to relief on appeal

unless she can show plain error, that is, error "capable of producing an unjust

result . . . ." R. 2:10-2. For a jury charge, "plain error is 'legal impropriety in

the charge prejudicially affecting the substantial rights of the [party] and

sufficiently grievous to justify notice by the reviewing court and to convince the

court that of itself the error possessed a clear capacity to bring about an unjust

result.'" Mason v. Sportsman's Pub, 305 N.J. Super. 482, 495 (App. Div. 1997)


                                                                             A-1424-16T1
                                        34
(quoting State v. Hock, 54 N.J. 526, 538 (1969)). The failure to provide clear

and correct jury charges "may constitute plain error." Das v. Thani, 171 N.J.

518, 527 (2002).

      "The first step in assessing the sufficiency of a contested jury charge . . .

requires an understanding of the legal principles pertinent to the jury's

determination." Estate of Kotsovska, 221 N.J. at 592. At issue here is whether

the Borough's issuance of a stop work order and an action to enforce it, after it

had issued the permits and approvals, constituted a taking of private property

without just compensation in violation of the Federal and State Constitutions.

See U.S. Const. amend. V ("[N]or shall private property be taken for public use,

without just compensation."); N.J. Const. art. I, ¶ 20 ("Private property shall not

be taken for public use without just compensation.").          "The New Jersey

Constitution provides protections against governmental takings of private

property without just compensation, coextensive with the Takings Clause of the

Fifth Amendment of the United States Constitution." Klumpp v. Borough of

Avalon, 202 N.J. 390, 405 (2010). The Takings Clause requires the government

to compensate the property owner where a taking occurs. Ibid.




                                                                           A-1424-16T1
                                       35
      A constitutional taking can occur by either a regulatory taking, as in this

case, or a "physical taking, in which the government takes title to private

property. . . ." Ibid.

             When the government physically takes possession of an
             interest in property for some public purpose, it has a
             categorical duty to compensate the former owner,
             regardless of whether the interest that is taken
             constitutes an entire parcel or merely a part thereof.
             Thus, compensation is mandated when a leasehold is
             taken and the government occupies the property for its
             own purposes, even though that use is temporary.

             [Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg'l
             Planning Agency, 535 U.S. 302, 322 (2002) (citation
             omitted).]

      Deciding whether a regulatory taking has occurred is more "complicated.

. . . As Justice Holmes stated, 'while property may be regulated to a certain

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

187 N.J. at 58 (quoting Pa. Coal Co. v. Mahon, 260 U.S. 393, 415 (1922)). "'One

example of a governmental regulation that has been held to go 'too far' is 'where

[the] regulation denies all economically beneficial or productive use of [the]

land.'" Ibid. (alterations in original) (quoting Lucas v. S.C. Coastal Council,

505 U.S. 1003, 1015 (1992)). "Regulatory takings are fact-sensitive, and the

landowner has the burden of establishing that the regulations have destroyed all



                                                                         A-1424-16T1
                                      36
economically viable use of the property." Moroney v. Mayor & Council of Old

Tappan, 268 N.J. Super. 458, 463 (App. Div. 1993) (citation omitted).

      However, if, as here, "the regulation does not deny all economically

beneficial use under Lucas, then the determination whether the regulation

otherwise constitutes a compensable taking is governed by the standards set

forth in [Penn Central, 438 U.S. at 124]." Mansoldo, 187 N.J. at 59. Under that

analysis, "Penn Central provides '[a]n ad hoc factual inquiry . . . for regulatory

action that diminishes but does not destroy the value of property by restricting

its use.'" Ibid. (alteration in original) (quoting Bronco Wine Co. v. Jolly, 29 Cal.

Rptr. 3d 462, 497 (Ct. App. 2005)). The Penn Central factors include: (1) "[t]he

economic impact of the regulation on the claimant"; (2) "the extent to which the

regulation has interfered with distinct investment-backed expectations"; and (3)

"the character of the governmental action [e.g., physical invasion]."           Penn

Central, 438 U.S. at 124.

      Plaintiff argues as plain error that the judge erred in failing to instruct the

jury to "determine whether a taking had occurred upon consideration of [the]

multiple factual factors" set forth in Penn Central. She contends that "lost value

is only one factor in the determination. It is neither the sole nor critical factor."

However, she does not argue on appeal, nor did she argue before the trial court,


                                                                             A-1424-16T1
                                        37
what specific other factors would have been appropriate. In fact, she only

argued before the trial court that the jury should consider the "loss of use, lost

rent." The court appropriately attempted to tailor the charge to that argument

and the evidence by instructing the jury that to establish a partial taking the

Sadejs must show there was a diminishment in the rental value of their property

during the time period from April 2002 to July 2007. See Komlodi v. Picciano,

217 N.J. 387, 420 (2014).

      The court also did not, as plaintiff argues, "hopelessly muddle[]" "the

proper measure of damages into a critical element of the claim itself." Under

Penn Central, 438 U.S. at 124, the "economic impact of the regulation on the

claimant" is a factor in determining whether a taking has occurred. Further, the

value by which the remaining part has been diminished as a consequence of a

partial taking is also a measure of damages. See Borough of Harvey Cedars v.

Karan, 214 N.J. 384, 417 (2013) (damages in partial taking calculated as

difference between value of entire tract before taking and the value of remainder

area after taking); see also Model Jury Charges (Civil), "Condemnation—Partial

Taking (Severance Damages)" (1996).

      Further, even if, as plaintiff argues, it would have been clearer to

specifically refer to the Penn Central factors, that failure does not constitute


                                                                          A-1424-16T1
                                       38
plain error because it had no clear capacity to bring about an unjust result. See

Mason, 305 N.J. Super. at 495. The Sadejs did not establish that the issuance of

the stop work order had an "economic impact" on the property. See Penn

Central, 438 U.S. at 124. They presented no evidence as to the value of the

property that was temporarily removed by the Borough, that is, the property they

were unable to improve without "peril" from 2002 to 2007. In fact, after the

court in the underlying action lifted the stop work order in 2002, the Sadejs

chose to complete all of the improvements except the expansion of the garage.

The Sadejs also presented no evidence as to the diminished rental value of the

property. Plaintiff testified only as to rents she later received in 2009, 2014, and

2015, but presented no evidence she would have received a greater amount if

the garage had been completed. The Sadejs could have called the realtors to

establish that loss, but chose not to.

      Plaintiff further argues that defendants waived their right to a jury charge

on a partial taking because they did not submit the charge in accord with the

"Firm Jury Trial" order. We disagree.

      Defendants initially submitted a request to charge in accord with the order,

which provided that:




                                                                            A-1424-16T1
                                         39
            On or before the scheduled trial date, all attorneys shall
            file and provide the trial judge and their adversaries
            with the following:

                  ....

                   Proposed jury charges, with legal authority,
            which charges must be tailored to the facts involved in
            the instant case.       "Boilerplate" charges, those
            referenced in Model Charge 1.12, need not be
            submitted unless counsel believes a special instruction
            is warranted by the facts of the instant case. Any
            substantive issue which is not included in the requests
            to charge may, in the discretion of the [c]ourt, be
            deemed abandoned or may be viewed as an issue for
            determination by the [c]ourt rather than by a jury.
            Failure to tailor any request to charge to the facts
            involved in this case may be viewed as constituting a
            request for a general charge and a waiver of a request
            for a tailored charge.

      Thereafter, immediately before closing arguments, defendants submitted

a request to charge regarding the "partial temporary taking." The court rejected

that charge, and charged the jury, without objection, as set forth above . In

denying the Sadejs' motion for a new trial on this basis, the court found that

            the issue of a partial taking evolved during the course
            of the trial. Defendants disputed that [p]laintiffs
            suffered any taking, whether complete or partial.
            Experts on behalf of both sides opined on the issue,
            both in their reports and in their testimony to the jury.
            This matter was hotly litigated during the trial and
            [p]laintiffs' argument that the Firm Trial Order
            precludes such issue is simply incorrect.


                                                                          A-1424-16T1
                                       40
      Rule 1:8-7(a) provides as follows:

            In Civil Cases. Either within the time provided by
            [Rule] 4:25-7 or thereafter but before the close of the
            evidence, as to issues not anticipated prior to trial any
            party may submit written requests that the court instruct
            the jury on the law as set forth in the requests. The
            requests shall make specific reference to the Model
            Civil Jury Charges, if applicable, or to applicable law.
            Copies of the requests shall be provided to all parties at
            the time they are submitted to the court. The court
            shall, on the record, rule on the requests prior to closing
            arguments to the jury.

      The court rejected defendants' proposed charge and thus the Sadejs were

not prejudiced by its late submission. Moreover, the court found the issue of a

partial taking evolved during the trial, including by the Sadejs' proposed

witnesses, and thus the Sadejs had ample notice of defendants' position on this

issue. Further, the Sadejs agreed with the court's charge on this issue, which the

court appropriately tailored to the evidence submitted at trial, and thus cannot

show prejudice.

      Next, plaintiff argues that defendants "effectively abandoned" the issue of

a partial taking and thus this should have been an uncontested issue at trial. She

contends that the question of whether or not diminished rental income controlled

the issue of a taking had not been raised at any time in the case. However, as

set forth above, the issue evolved over the course of the trial and neither party


                                                                          A-1424-16T1
                                       41
clearly abandoned it. Moreover, the only evidence the Sadejs submitted in

support of their partial taking claim was the rent they received, and thus they

should not have been surprised when defendants proposed a jury charge on the

issue, and the court tailored the instruction to that evidence. Further, the court

did not, as plaintiff argues, find that defendants had effectively abandoned this

issue in denying defendants' motion for judgment. Instead, the court denied

defendants' motion for judgment on the 42 U.S.C. § 1983 claim.

      Lastly, plaintiff argues that the court erred in denying her motion for a

new trial on the same grounds as set forth above. A trial court shall grant a

motion for a new trial "if, having given due regard to the opportunity of the jury

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). We must

adhere to essentially the same standard when reviewing the trial court's decision.

Dolson v. Anastasia, 55 N.J. 2, 7 (1969). We find no plain error in the charge

or in the procedures surrounding the charge. Accordingly, the court did not err

in denying plaintiff's motion for a new trial.

                                         IV.

      Plaintiff argues, in the alternative, that she is entitled to attorney's fees for

defendants' pursuit of "worthless claims" in the underlying action, and for the


                                                                               A-1424-16T1
                                         42
fees incurred in the legal malpractice action. She claims defendants took the

position that her claims were viable in the underlying action but argued "exactly

the opposite" during the malpractice action.       In support of that argument,

plaintiff cites to French v. Armstrong, 80 N.J.L. 152, 155 (Sup. Ct. 1910).

However that case did not hold that a plaintiff is entitled to attorney's fees for

the pursuit of "worthless claims."

      Further, defendants did not, as plaintiff argues, assert during the

malpractice action that the 42 U.S.C. § 1983 and promissory estoppel claims

were "worthless." Instead, defendants posited that the dismissal of those claims

was immaterial because the claims that were preserved were more than sufficient

to provide the Sadejs with their full measure of damages. Accordingly, both

legally and factually, plaintiff's argument is without merit.

      Affirmed.




                                                                          A-1424-16T1
                                       43
