Opinion
DOCKET NO. A-2732-13T4
07-18-2016
RICHARD DANZIS and MICHELE KELLY DANZIS, Plaintiffs-Appellants/Cross-Respondents, v. HIGHLAND LAKES COUNTRY CLUB and COMMUNITY ASSOCIATION, Defendant-Respondent/Cross-Appellant.
Andrew R. Turner and Hugh A. Keffer argued the cause for appellants/cross-respondents (Turner Law Firm, LLC and Fidelity National Law Group, attorneys; Mr. Turner, of counsel and on the briefs; Mr. Keffer, on the brief). Eileen McCarthy Born argued the cause for respondent/cross-appellant (Dolan and Dolan, P.A., attorneys; Ms. Born, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Yannotti and Haas. On appeal from Superior Court of New Jersey, Chancery Division, Sussex County, Docket No. C-14-12. Andrew R. Turner and Hugh A. Keffer argued the cause for appellants/cross-respondents (Turner Law Firm, LLC and Fidelity National Law Group, attorneys; Mr. Turner, of counsel and on the briefs; Mr. Keffer, on the brief). Eileen McCarthy Born argued the cause for respondent/cross-appellant (Dolan and Dolan, P.A., attorneys; Ms. Born, on the brief). PER CURIAM
Plaintiffs Richard and Michele Danzis appeal from the Chancery Division's December 6, 2013 order granting defendant Highland Lakes Country Club and Community Association's motion for summary judgment, and requiring plaintiffs to remove certain encroachments from defendant's property. Plaintiffs also appeal from a December 15, 2014 order, enforcing the requirement that they remove the encroachments and ordering plaintiffs to pay defendant $3502.40 in attorney's fees. Finally, defendant has filed a cross-appeal, challenging the court's January 10, 2014 order requiring defendant to grant plaintiffs an easement on its land to accommodate plaintiffs' existing well in return for plaintiffs' payment of $255 to defendant. We affirm all three orders.
I.
The material facts of this matter are not in dispute. Highland Lakes is a private, single-family residential lake community located in Vernon Township. Defendant is an incorporated, private, nonprofit lake association. All property owners in Highland Lakes are required to be members of this association. Defendant owns common properties in Highland Lakes, including lakes, dams, beaches, and approximately thirty-eight miles of roads.
Plaintiffs purchased their property in Highland Lakes in 1997. As required, plaintiffs became members of the association when they purchased their home. Plaintiffs' property is adjacent to one of the roads owned by defendant.
When Highland Lakes was established, property owners were granted an easement that ran with the property "for ingress to and egress from the premises [described in their deed] over and along the private roads, as now or hereafter exist, connecting the premises with the public highway." At the same time, defendant's "Rules and Regulations" state: "Since the width of the right of way of [defendant's] roads generally exceeds that of the actual road bed, no obstruction shall be placed nor structures built beyond any individual property line so as to extend into the right of way."
Plaintiffs' home, which borders one of the lakes, is located approximately twenty-five feet below one of defendant's roads. Plaintiffs can access the road by using their paved driveway. When plaintiffs purchased their home in 1997, there were also wooden stairs leading up from their property to the road. Approximately two feet of the stairway structure encroached onto defendant's property at the top of the stairs. In addition, there was a retaining wall near the road. Most of this wall was on plaintiffs' property. However, there were several "dead men" anchors that were placed on defendant's property. Finally, plaintiffs' well, which supplied their home with water, encroached approximately three feet upon defendant's property.
All three of these encroachments were depicted in a survey plaintiffs obtained prior to purchasing the property. Plaintiffs did not advise defendant of these encroachments.
In 2008, plaintiffs applied for a building permit from Vernon Township to reconstruct their stairs. The Township advised plaintiffs that they first had to seek defendant's permission because of the three encroachments. Defendant refused to consent to plaintiffs' plan to rebuild the stairs unless they removed the well and the other encroachments from defendant's property. Plaintiffs declined to do so.
On April 9, 2012, plaintiffs filed a complaint against defendant, seeking a declaration granting them title to defendant's land where the well was located or, in the alternative, requiring defendant to sell them that land for fair market value. Defendant filed an answer, together with a counterclaim, demanding that plaintiffs "remove all encroachments, including the well, retaining wall[,] and staircase, from [defendant's] right of way[.]" The parties then filed cross-motions for summary judgment.
Following oral argument on December 6, 2013, Judge Hansbury rendered a thorough oral opinion addressing each of the three encroachments. In reviewing the issues raised by the parties, the judge relied upon the Supreme Court's decision in Mannillo v. Gorski, 54 N.J. 378 (1969). In Mannillo, the Court held that
if the innocent trespasser of a small portion of land adjoining a boundary line cannot without great expense remove or eliminate the encroachment, or such removal or elimination is impractical or could be accomplished only with great hardship, the true owner [of the property] may be forced to convey the land so occupied upon payment of the fair value thereof without regard to whether the true owner had notice of the encroachment at its inception.
[Id. at 389.]
Applying the rule in this case, Judge Hansbury found that plaintiffs submitted uncontradicted evidence that it would cost at least $25,000 to decommission their existing well and construct a new well at the rear of their property. Plaintiffs also obtained estimates indicating that it would cost between $350,000 and $450,000 to connect to the Township's water supply if they did not have a well. The judge found that "water [was] essential to the habitability of the house" and, therefore, he ordered defendant to convey an interest in the property where the well was located to plaintiffs in return for its fair market value.
In so ruling, the judge rejected defendant's argument that it should be treated like a municipal, rather than a private, entity to which the Mannillo rule might not apply.
The judge reached a different conclusion with regard to the stairs and the anchors on the retaining wall. The judge observed that, unlike the well which had been in existence since 1976, the record demonstrated that the stairs were not installed until thirty years after the home was built. The judge found that the easement in plaintiffs' deed only permitted homeowners to use defendant's roads to access the public highways, and that defendant's rules and regulations specifically prohibited homeowners from placing any obstructions in these rights of way.
It is not clear when the wall anchors were placed on defendant's property. However, plaintiffs did not submit any evidence demonstrating that it would be prohibitively expensive to remove or reconfigure either the stairs or the wall anchors. Indeed, this litigation started because plaintiffs were seeking to reconstruct their stairs. Plaintiffs also failed to present any proofs indicating that property damage would occur if either the stairs or the wall anchors were removed. Therefore, the judge ordered plaintiffs to remove these encroachments when the weather permitted.
The parties then submitted expert reports concerning the fair market value of the approximately three feet of defendant's property where the well was partially situated. Judge Hansbury considered these reports and conducted oral argument on December 18, 2013. Defendant took the position that it should be awarded the value of the well to plaintiffs, which they pegged at approximately $48,000. On the other hand, plaintiffs suggested that defendant was only entitled to a modest payment for whatever slight diminution in value having the well on its property caused.
In another oral opinion, Judge Hansbury ruled that requiring defendant to grant plaintiffs an easement for the use of about three feet of property for their well was the most practical and equitable resolution. The judge accepted plaintiffs' expert's assessment that such an easement was worth $255 to defendant, and ordered plaintiffs to pay defendant that amount. On January 10, 2014, the judge entered a "final judgment to quiet title to land" setting forth the terms of the easement for the well and plaintiffs' obligation to pay $255 to defendant.
In February 2014, plaintiffs paid defendant the $255 for the easement, and defendant accepted the payment. The parties prepared and executed a warrant to satisfy judgment, but it was not dated and there is no indication that it was ever filed with the court. The warrant also does not indicate that either party was waiving their right to appeal by signing the document. Under these circumstances, we do not view the execution of the warrant as a waiver of either party's right to appeal. Cf. Sturdivant v. Gen. Brass & Mach. Corp., 115 N.J. Super. 224, 225-28 (App. Div.) (warrants dated and filed with the court), certif. denied, 59 N.J. 363 (1971).
Plaintiffs filed a notice of appeal concerning the court's December 6, 2013 order requiring them to remove the stairs and wall anchors from defendant's property. Defendant then filed a cross-appeal challenging the January 10, 2014 order, which permitted plaintiffs to retain the well pursuant to an easement.
While these appeals were pending, defendant brought an enforcement action against plaintiffs because they refused to remove the remaining two encroachments from defendant's property. They also sought attorney's fees for having to file the motion.
On December 15, 2014, Judge Hansbury granted defendant's motion and ordered plaintiffs to remove the encroachments no later than April 15, 2015. In an attached written statement of reasons, the judge explained that the December 6, 2013 order, directing plaintiffs to remove the encroachments, had never been stayed and plaintiffs were well aware that they had to remove both the stairs and the wall anchors that were on defendant's property. Because plaintiffs' non-compliance with the December 6, 2013 order was willful, the judge ordered plaintiffs' to pay defendant $3502.40 in attorney's fees and costs. On January 28, 2015, we granted plaintiffs' motion to amend their notice of appeal to include the December 15, 2014 enforcement order.
As Judge Hansbury observed, these fees and costs were fully documented in the certification of services submitted by defendant's attorney. --------
II.
On appeal, plaintiffs argue the trial judge "erred by granting relief not sought in the pleadings and failing to explain the reason [his] decision was inconsistent with the facts presented and defendant's testimony." In its cross-appeal, defendant asserts the judge "erred in ordering [it to] grant an easement for the continued use of the well, which encroached into [defendant's] right of way."
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59 (2015). "Summary judgment must be granted if 'the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show . . . there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment . . . as a matter of law.'" Town of Kearny v. Brandt, 214 N.J. 76, 91 (2013) (quoting R. 4:46-2(c)).
Thus, we consider, as the trial judge did, whether "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Ibid. (quoting Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)). If there is no genuine issue of material fact, we must then "decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). We accord no deference to the trial judge's conclusions on issues of law and review issues of law de novo. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
We have considered plaintiffs' and defendant's contentions in light of the record and applicable legal principles and conclude they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are satisfied that Judge Hansbury properly granted partial summary judgment to both parties, and affirm substantially for the reasons expressed in his December 6 and 18, 2013 oral opinions, and his December 15, 2014 written opinion. However, we make the following brief comments.
Turning first to defendant's cross-appeal, we discern no basis for disturbing Judge Hansbury's principled determination to permit plaintiffs to maintain their well in its current location, while requiring them to pay defendant the fair market value of the easement necessary for them to do so. The judge followed the rule established by the Supreme Court in Mannillo, supra, that permits a trespasser to retain the right to use a small portion of another's property where "removal or elimination [of a minor encroachment on that property] is impractical or could be accomplished only with great hardship[.]" 54 N.J. at 389; see also Symczak v. Laferrara, 280 N.J. Super. 223, 229-30 (App. Div. 1995) (applying a "balancing of the equities" test to award the defendant, the owner of a vacant lot, monetary damages rather than requiring the plaintiffs to destroy their home, which they had mistakenly built on part of the defendant's lot).
In doing so, the court balanced the equities between the parties and arrived at a fair and equitable solution to the problem. Here, the well had been in existence for over thirty-five years and extended only about three feet onto defendant's property. Plaintiffs would have to expend tens of thousands of dollars to decommission and replace the well in another location on their property, or hundreds of thousands of dollars for a connection to its water supply. On the other hand, defendant failed to demonstrate any palpable harm the location of the well caused to it or the other association members. Under these circumstances, we are satisfied the judge properly permitted plaintiffs to retain the wall.
The record also fully supports the judge's finding that the fair value of the easement plaintiffs needed to retain the well was $255, rather than the $48,000 sought by defendant. Defendant did not establish any significant diminution of value to its property by the existence of the well. Therefore, the judge properly rejected its unreasonable claim for damages that it calculated as the difference between the value to plaintiffs of having a home with or without a well. The judge also correctly concluded that defendant, a private organization, was definitely not a public or quasi-public entity entitled to exemption from the rule established in Mannillo, supra.
Plaintiffs' arguments on its appeal also lack merit. Contrary to plaintiffs' assertion, the judge did not "vastly expand" the relief sought by defendant in its counterclaim. As noted above, the counterclaim clearly demanded that plaintiffs "remove all encroachments, including the wall, retaining wall[,] and staircase, from [defendant's] right of way[.]" The well, stairs, and wall anchors were the only encroachments that were the subject of the proceedings, and are the only encroachments covered by the judge's orders. Therefore, plaintiffs' attempt to feign confusion as to what encroachments needed to be removed (the stairs and the wall anchors placed on defendant's property) has no basis in the record.
The judge correctly rejected plaintiffs' argument that the easement in the original deed, permitting them "ingress to and egress from the premises [described in their deed] over and along the private roads, as now or hereafter exist, connecting the premises with the public highway," meant they could install obstructions in defendant's right of way, such as stairs, to better enable them to access the road. "Questions concerning the extent of the rights conveyed by an easement require a determination of the intent of the parties as expressed through the instrument creating the easement, read as a whole in light of the surrounding circumstances." Rosen v. Keeler, 411 N.J. Super. 439, 451 (App. Div. 2010) (citing Poblette v. Towne of Historic Smithville Cmty. Ass'n, Inc., 355 N.J. Super. 55, 63 (App. Div. 2002)). "[W]hen the intent of the parties is evident from an examination of the instrument, and the language is unambiguous, the terms of the instrument govern." Ibid. (alteration in original) (quoting Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957)).
Here, the terms of the easement are clear. Plaintiffs, like all other homeowners with property in Highland Lakes, may use defendant's roads to access the public highways outside the community. The easement simply does not contain any language permitting homeowners to build structures on defendant's property, like the stairs and wall anchors involved in this case. Indeed, defendant's rules and regulations specifically prohibit association members from building or placing any obstruction "beyond any individual property line so as to extend into the right of way." Therefore, we reject plaintiffs' contention on this point.
Finally, the judge properly granted defendant's request for attorney's fees and costs when plaintiffs willfully failed to comply with the December 6, 2013 order requiring it to remove the portion of the stairs and the wall anchors that were on defendant's property. "[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). The record supports the judge's determination that plaintiffs acted unreasonably in ignoring the December 6 order, and the fees and costs sought by defendant's attorney were fully documented in the attorney's certification of services. Therefore, we conclude the judge appropriately exercised his discretion in granting defendant's request.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION