The opinion
TAX COURT OF NEW JERSEY
JOSEPH M. ANDRESINI, P.J.T.C. 125 State Street, Suite 100
PRESIDING JUDGE Hackensack, NJ 07601
Tel: (609)815-2922 ex. 54570
Fax: (201) 996-8052
NOT FOR PUBLICATION WITHOUT APPROVAL OF
THE TAX COURT COMMITTEE ON OPINIONS
January 14, 2020
William F. Rupp
Chasan Lamparello Mallon & Cappuzzo, PC
300 Lighting Way, Suite 200
Secaucus. NJ 07094
Christopher John Stracco
Day Pitney LLP
One Jefferson Road
Parsippany, NJ 07054-2891
Re: Sony Corporation of America v. Park Ridge Borough
Docket No. 009341-2014
Hornrock Properties, LLC v. Park Ridge Borough
Docket No. 005960-2015; 003144-2016; 001911-2017; 002996-2018
Dear Counsel:
This letter constitutes the court’s findings of fact and conclusions of law regarding the
Plaintiff’s, Sony Corporation of America and Hornrock Properties, LLC (“Plaintiff”), request to
permit testimony by witness Robert Mewis as excluded evidence under R: 1:7-3 in order to
preserve the testimony on the record for appeal. For the reasons stated more fully below, the
court will not permit Mr. Mewis to offer testimony as to the reliability of R.S. Means Online as
excluded evidence under R. 1:7-3 but will permit Plaintiff to submit the certification of Mr.
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Mewis 1 as a proffer to preserve the evidence for appellate review in satisfaction of R. 1:7-3
instead.
FINDINGS OF FACT AND PROCEDURAL HISTORY
Following the testimony offered by Plaintiff’s cost expert, Mr. Devennie, Plaintiff sought
to introduce testimony comparing cost expert Mr. Devennie’s analysis reached through R.S.
Means Online with an analysis made using the R.S. Means Manual. Mr. Devennie did not utilize
the manual in drafting his report or verifying his conclusions, instead relying solely on R.S.
Means Online. Plaintiff asserted that the manual and the online version were near identical,
reaching their conclusions of valuation from the same data sources. (Pl. Br. 11/8/2019). The
court sustained Defendant’s objection to this type of testimony, stating that,
“[Mr. Devennie] cannot provide any kind of comparison of the unit costs or any of the
costs by utilizing the manual here today or any other day in this courtroom in this matter
for the concerns I expressed, but mostly because he didn’t rely on it in producing [his
report]. He relied on the computer programming.” (Tr. 7/16/2019 21:16-23:9).
Plaintiff then moved for reconsideration of the court’s decision barring the requested testimony.
At the conclusion of oral argument, the court concluded that, “[the court’s] ruling is that we’re
staying within the four corners of the report.” (Tr. 7/16/2019 28:16-29:3).
Thereafter, Plaintiff sought to introduce testimony of Robert Mewis, a longstanding
employee of R.S. Means who is purportedly qualified to testify as to the reliability of the R.S.
Means Online software. Plaintiff then filed a motion for an N.J. Evid. R. 104 hearing as to the
admissibility of R.S. Means data and on the admissibility of expert testimony or in the
alternative, to permit the testimony as to R.S. Means data as excluded evidence pursuant to R.
1:7-3. The court heard oral argument on the matter and accepted briefs from the parties resulting
in an Order being entered on December 2, 2019 setting conditions on any testimony by Mr.
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See Certification by Robert Mewis to Authenticate Electronic Data dated 5/10/2019.
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Mewis as well as laying out the timeline for the parties to respond. 2 The Order filed by the court
on December 2, 2019 indicated that in order for Mr. Mewis to be allowed to testify as an expert
witness, Plaintiff must provide the R.S. Means Online source code to the court and to Defendant
as well as an expert report produced by Mr. Mewis.
On December 9, 2019, Plaintiff responded to the court that neither would be provided to
Defendant. As such, pursuant to the court’s Order dated December 2, 2019, Mr. Mewis will not
be permitted to testify as an expert witness. Accordingly, the court now considers Plaintiff’s
alternative request to allow Mr. Mewis to offer testimony as excluded evidence under R. 1:7-3.
CONCLUSIONS OF LAW
N.J. R. 1:7-3 states:
If an objection to a question propounded to a witness is sustained by the court, the
examining attorney may, out of the hearing of the jury (if there is a jury), make a specific
offer of what is expected to be proved by the answer of the witness, and the court may
add such other and further statement as clearly shows the character of the evidence, the
form in which it was offered, and the ruling thereon. In actions tried without a jury the
court shall upon request permit the evidence and any cross-examination relating thereto
or evidence in rebuttal thereof to be taken down by the court reporter in full, or otherwise
preserved, unless it clearly appears to the court that the evidence is not admissible on any
ground or that the witness is privileged or unless the interest of justice otherwise requires.
In actions tried with a jury the court may, in its discretion and in the absence of the jury,
permit such taking and preservation of the excluded evidence.
The purpose of R. 1:7-3 is to preserve evidence excluded by the trial court on the record for
subsequent appellate review so that the appellate court may more efficiently and cost effectively
determine error or abuse of discretion by the lower court in excluding the evidence. The
comment on R. 1:7-3 elaborates that, “[t]he rule affords the option to counsel, not the court, to
preserve the excluded evidence by way of a proffer, and the court is ordinarily obliged, within
the terms of the rule, to permit the offer of proof to be spread upon the record.” Pressler,
2
See Order dated December 2, 2019.
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Verniero, Current N.J. Court Rules, comment on R. 1:7-3 (2020) (citing State v. Johnson, 46
N.J. 289, 291 (1966)). Current N.J. Court Rules (2020), comment on R. 1:7-3 further explains
that:
If the trial is without a jury, the rule requires that the excluded evidence be adduced and
preserved upon a party’s request unless it is clearly not admissible or is privileged or
“unless the interest of justice otherwise requires.” The last of these exceptions is
intended, e.g., to avoid inordinate time consumption where the excluded evidence is
voluminous, or requires production of a number of witnesses, or would be inordinately
prejudicial. Ordinarily, however, and where no such special circumstances exist, the
adducing of the excluded evidence should be permitted so that if a prejudicial
exclusionary ruling is reversed on appeal, the appellate court may either find the facts
therefrom itself or require findings thereon by the trial court, thus avoiding the expense,
delay and harassment of a remand for a new trial.
The importance of preserving evidence for appellate review has a longstanding history and is
applicable through several statutes 3 in multiple jurisdictions, both state and federal. Federal Rule
of Evidence 103 is analogous to N.J. R. 1:7-3 which reads as follows:
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit
or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof,
unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on
the record—either before or at trial—a party need not renew an objection or offer of proof
to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any
statement about the character or form of the evidence, the objection made, and the ruling. The
court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court
must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial
right, even if the claim of error was not properly preserved.
The advisory committee notes for FRE 103 similarly explain that:
3
See South Carolina Rule of Evidence 103; Texas Rule of Evidence 103(a); North Carolina 8C-1. Rules of
Evidence 103; Federal Rule of Evidence 103.
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Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of
what occurred in the trial court… It is designed to resolve doubts as to what testimony the
witness would have in fact given, and, in nonjury cases, to provide the appellate court
with material for a possible final disposition of the case in the event of reversal of a
ruling which excluded evidence. See 5 Moore’s Federal Practice § 43.11 (2d ed. 1968).
Application is made discretionary in view of the practical impossibility of formulating a
satisfactory rule in mandatory terms.
In applying R. 1:7-3, the Appellate Division has established a preference for the trial court to err
on the side of preserving any evidence for appellate review. In State v. Rowe, 316 N.J. Super.
425, A.2d 612 (App. Div. 1998), the court held that:
The best technique is to make the offer of proof and preserve the record of excluded
evidence in some more formal manner, either by testimony, if possible, or an affidavit or
certification, or by preserving the proposed witness's written or adopted statement in the
record by marking it for identification. See R. 1:7-3; Evid.R. 8(1) (N.J.E.R. 104(a)). The
"proper ground work" for consideration of the question on appeal must be laid by counsel
or the point can be forfeited on appeal. See Duffy v. Bill, 32 N.J. 278, 294, 160 A.2d 822
(1960); see also State v. Johnson, 46 N.J. 289, 291, 216 A.2d 392 (1966). The more
specific and tangible the offer, the more likely appropriate preservation for appeal.
The New Jersey Supreme Court has also held in favor of the importance of counsel
making a specific offer of proof to preserve any excluded evidence on the record, stating that:
Without such a specific offer of proof… it is virtually impossible for the appellate court
in reviewing the case to determine whether the exclusion had a prejudicial effect, and, the
burden of such a showing being on the appellant, there can be no remand for a new trial
because of the exclusion without an offer of proof. See Steffler v. Schroeder, 12 N.J.
Super. 243, 248 (App. Div. 1951); Gibson v. Pennsylvania R.R., 14 N.J. Super. 425, 434
(App. Div. 1951); New Jersey Highway Authority v. Johnson, 35 N.J. Super. 203, 214
(App. Div. 1955); State ex rel. State Highway Com'r v. Gorga, 54 N.J. Super. 520, 525
(App. Div. 1959).
Accordingly, both the language of R. 1:7-3 as well as subsequent holdings by the New Jersey
Supreme Court and the Appellate Division establish that the proper practice is to preserve the
excluded evidence on the record. In the present case, however, the Plaintiff seeks to introduce
excluded evidence in the form of new testimony before the court without affording counsel for
the Defendant adequate ability to effectively cross examine the witness or offer rebuttal
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evidence. Despite Plaintiff’s reassurance that Defendant can be provided with the opportunity to
depose Mr. Mewis and furnish its own expert to rebut Mr. Mewis’s testimony, the court agrees
with Defendant’s contention that allowing Mr. Mewis to testify as to the reliability of R.S.
Means Online without first providing the Defendant with the source code would lead to undue
prejudice. It is the reasoning of this court that allowing Mr. Mewis to testify as to the underlying
data and methodologies of the software, in his capacity as an expert for R.S. Means Online and
with intimate familiarity with the program, without first providing the Defendant access to the
underlying R.S. Means Online source code and data, will neuter effective cross examination.
Although in the context of a criminal trial, the Appellate division has held that a proffer
for excluded evidence can be inadequate if not done in a timely fashion. See State v. Sanders,
2009 N.J. Super. Unpub. Lexis 3168 (App. Div. 2009) (Upheld the denial of introduction of
witness requested as excluded evidence for the first time at the conclusion of trial due to lateness
and absence of any indication that the witness would be beneficial, or its exclusion would lead to
prejudice.) See also State v. Pittman, 2009 N.J. Super. Unpub. LEXIS 2754 (App. Div. 2009)
(State’s attempt to introduce witness as excluded evidence “too little, too late.”)
CONCLUSION
In the instant matter, Mr. Mewis was not identified by Plaintiff as a potential witness
until late in the trial. Further, there has been no expert report provided, nor was the source code
for the R.S. Means Online computer software made accessible to Defendant – both of which
would be essential in permitting effective cross examination by the Defendant. Given both the
significant delay in attempting to introduce Mr. Mewis’s testimony, as well as Defendant’s
inability to adequately cross examine the witness, the court in its discretion cannot permit the
introduction of testimony by Mr. Mewis as excluded evidence under R. 1:7-3. Allowing Mr.
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Mewis to testify at this stage of the proceedings without providing the Defendant a meaningful
ability to cross examine and rebut his testimony would lead to the inordinate prejudice cautioned
in applying R. 1:7-3 in accordance with the interest of justice.
In accordance with the above, however, the court understands the importance of
adequately preserving excluded evidence for appellate review. Although the court holds that
testimony by Mr. Mewis would lead to inordinate prejudice to the Defendant, it is the opinion of
this court that the introduction of the certification by Mr. Mewis onto the record as a proffer
would adequately preserve the issue for appeal. 4
For the reasons stated above, Plaintiff will be permitted to offer the certification of Mr.
Robert Mewis of R.S. Means as a proffer to preserve the testimony excluded by this court for
appellate review under R. 1:7-3.
Very truly yours,
Hon. Joseph M. Andresini, P.J.T.C.
4
Defendant has indicated their acquiescence to the same in their brief dated December 23, 2019.
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