Opinion
DOCKET NO. A-1495-14T2
04-18-2016
MARY ANN RINALDO, Plaintiff-Appellant, v. NICHOLAS DELUCA and KATHY DELUCA, Defendants-Respondents.
Leonard J. Artigliere argued the cause for appellant (McDonnell Artigliere, attorneys; Mr. Artigliere, of counsel and on the briefs; John F. McDonnell, on the briefs). Brian M. Cige argued the cause for respondents.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Espinosa. On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1459-12. Leonard J. Artigliere argued the cause for appellant (McDonnell Artigliere, attorneys; Mr. Artigliere, of counsel and on the briefs; John F. McDonnell, on the briefs). Brian M. Cige argued the cause for respondents. PER CURIAM
The central issue raised in this appeal is whether defendants violated the terms of an easement agreement. Plaintiff Mary Ann Rinaldo appeals from an order that granted summary judgment to defendants, dismissing her claims that defendants violated the easement agreement, intentionally interfered with her use and enjoyment of the property, and committed trespass by "dump[ing] . . . various unwanted materials" on her property. For the reasons that follow, we affirm.
Rinaldo passed away in October 2014. According to the Case Information Statement, Rinaldo's estate filed a letter with this court on December 1, 2014, stating Rinaldo had passed away and the attorney was seeking to amend the caption in the trial court. There is no evidence in the Case Information Statement that the caption was amended or that the estate has been substituted for Rinaldo.
I.
In 1977, Rinaldo deeded property to her brother. The property was adjacent to her own and the transfer was subject to an easement agreement, which was duly recorded, that granted Rinaldo the following:
[A]n easement and right of way 19 feet in width on and over the lands and premises . . . . Said easement and right of way shall be used in common with the parties of the first part, their heirs and assigns, for all purposes of ingress and egress to and from Main Street.
[(Emphasis added).]
A 1977 survey shows no encroachments placed in the easement by either property. There is, however, some evidence that a dilapidated retaining wall extended slightly into the easement before the property was sold to defendant Nicholas DeLuca in 2009.
Although Kathy DeLuca is named as a defendant, Nicholas DeLuca is the sole owner of the home. --------
DeLuca knew the easement existed when he purchased the property. He was also advised by his attorney that "any future modification to the common driveway easement must be undertaken with the consent of the adjoining neighbor" and he could not "unilaterally require that [his] neighbor accept any modification." DeLuca negotiated a $10,000 price reduction for the property due to the easement, the location of the property on a main road, and the "severe slope in the backyard."
DeLuca knocked down the existing structure and built a new home. He built a retaining wall, a stone wall and a patio that entered into the easement, and planted three arborvitaes near the retaining wall.
Each of the parties had complaints about the other's use of the easement. DeLuca complained that Rinaldo obstructed his property by parking on the easement. Rinaldo's son, Richard Rinaldo, certified he "personally objected to [DeLuca] constructing the walls, planting trees, and installing a patio within the easement."
The complaint was filed approximately three years after DeLuca bought the property. In addition to the claims asserted, Rinaldo sought an injunction precluding DeLuca from interfering with the easement, an order removing all objects placed therein, and damages. Thereafter, DeLuca filed a motion for summary judgment and Rinaldo filed a cross-motion for summary judgment.
The trial judge granted DeLuca's motion, denied Rinaldo's cross-motion and set forth his reasons in a written decision. Noting both parties contended there were "no factual disputes," the judge held that Rinaldo had failed to demonstrate "she has been prevented from using the easement for its intended purpose due to Defendant's actions, nor has she suffered any damages." The court reasoned that:
so long as Defendant does not act in a way that affects the intended use of the easement - for Plaintiff to access the rea[r] yard - nor changes the character or location of the easement, then Defendant has acted within his rights as a property owner in making improvements upon his property.
II.
In this appeal, Rinaldo argues: (1) the trial judge erred in considering extrinsic evidence to interpret the easement agreement because it was unambiguous and that material issues of fact existed to preclude summary judgment (Points I and III); (2) defendant's modifications are "a clear violation of the easement" (Point II); and (3) the trial court "fail[ed] to address the second and third counts of the complaint" (Point III). All of these arguments lack merit.
We review an order granting summary judgment de novo. Townsend v. Pierre, 221 N.J. 36, 59 (2015). Like the trial court, we draw all legitimate inferences in favor of plaintiff, the non-moving party here, R. 4:46-2(c), to determine whether the movant is entitled to judgment as a matter of law. Ibid.
"An easement creates a non-possessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the uses authorized by the easement." Caribbean House, Inc. v. N. Hudson Yacht Club, 434 N.J. Super. 220, 226 (App. Div. 2013) (citation omitted). "An easement appurtenant is created when the owner of one parcel of property (the servient estate) gives rights regarding that property to the owner of an adjacent property (the dominant estate)," Rosen v. Keeler, 411 N.J. Super. 439, 450 (App. Div. 2010) (citation omitted), and "cannot exist separate from the land itself." Ridgewood v. Bolger Found., 104 N.J. 337, 340 (1986). An "express grant of a right to use the adjoining property," Leach v. Anderl, 218 N.J. Super. 18, 28 (App. Div. 1987), is analyzed following principles of contract interpretation. Borough of Princeton v. Bd. of Chosen Freeholders, 333 N.J. Super. 310, 324-25 (App. Div. 2000), aff'd, 169 N.J. 135 (2001).
To determine the extent of the rights conveyed under an easement, the primary rule of construction is that "the intent of the conveyor is normally determined by the language of the conveyance read as an entirety and in the light of the surrounding circumstances." Khalil v. Motwani, 376 N.J. Super. 496, 503 (App. Div. 2005) (quoting Hammett v. Rosensohn, 26 N.J. 415, 423 (1958)). When the terms of the easement are unambiguous and "the intent of the parties is evident," the "terms of the instrument govern." Rosen, supra, 411 N.J. Super. at 451 (citation omitted). However, "[w]hen the language is ambiguous, the surrounding circumstances, including the physical conditions [and character] of the servient tenement and the requirements of the grantee, play a significant role in the determination of the controlling intent." Ibid., see Khalil, supra, 376 N.J. Super. at 503. The court may consider the course of conduct of the parties as evidence of what was intended under the agreement. Savarese v. Corcoran, 311 N.J. Super. 240, 248 (Ch. Div. 1997), aff'd, 311 N.J. Super. 182 (App. Div. 1998). Ambiguities in the easement must be construed against the grantor. Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957).
Two competing principles guide a court's interpretation of an easement: (1) the landowner cannot, absent consent of the dominant estate, "unreasonably interfere with the latter's rights or change the character of the easement so as to make the use thereof significantly more difficult or burdensome"; and (2) the dominant estate's "implied right to do what is reasonably necessary for its complete enjoyment" must be exercised "in such reasonable manner as to avoid unnecessary increases in the burden upon the landowner." Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 605 (1964); see also Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 479 (App. Div. 1993); Restatement (Third) of Property § 4.9 (2000) ("Except as limited by the terms of the servitude . . ., the holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with the enjoyment of the servitude.").
In moving for summary judgment, defendants argued the record established that they had not interfered with Rinaldo's reasonable use of the subject easement for its stated purpose. As both parties maintain the easement language is clear, we reiterate its terms:
[A]n easement and right of way 19 feet in width on and over the lands and premises . . . . Said easement and right of way shall be used in common with the parties of the first part, their heirs and assigns, for all purposes of ingress and egress to and from Main Street.
[(Emphasis added).]
Thus, the right granted to Rinaldo was to share with DeLuca a right of way "19 feet in width . . . for all purposes of ingress and egress to and from Main Street." It is this use that DeLuca could not unreasonably abridge.
Rinaldo argues that DeLuca violated its terms by unilaterally "turn[ing] the severely sloped easement area into an obstacle course," "render[ing] it dangerous and unsafe to use, especially in winter." To support this contention that DeLuca deprived plaintiff of the use provided by the easement, Rinaldo relies upon certifications submitted by Richard Rinaldo, which include the following representations:
• The property slopes from the DeLuca side to my mother's side. The wall and trees planted within the easement make it difficult and dangerous to use the easement. It also caused me to have to cut down a pine tree on my mother's property to make it passable without scraping on vehicles. This in addition to the parking area we constructed in order to limit our use of the easement.
• On or about May 30, 2012, my brother Stephen blew out his tire on a large rock that Mr. DeLuca placed at the
bottom of the easement. The repair invoice is attached.
• On December 31, 2012, my van slid off the driveway, again while attempting to avoid the wall in the easement. My van had to be towed. A copy of the receipt is attached.
• There was never any erosion problem requiring construction of walls within the easement areas for my entire life.
• There were the remains of a small concrete area as was noted on the survey attached to the original Motion as Exhibit K (re-attached hereto). This area was overgrown, not used, and vehicles could drive right over it.
• I am also attaching a photo of the easement prior to the purchase by the Defendant. This photo clearly shows that no impediments existed or extended into the easement area prior to those constructed by Mr. DeLuca.
• It is incorrect to assert this as an alleged pre-existing impediment to the easement area.
• Also attached hereto are two recent photographs taken on February 27, 2014. These photos not only show the complete and utter failure of the Defendant to maintain the easement (a van is stuck in the background of the photo), but also show why it is necessary that the easement remain unimpeded.
• The impediments (the trees shown are clearly visible) which have so reduced the area in which to pass that it makes its use impossible. Moreover, the snow that has been moved has been placed in
a careless manner, blocking entryways into my mom's house, as well as through the Bilco doors to the basement.Rinaldo contends that these statements, corroborated by photographs, showed the easement was interfered with and created a material issue of fact.
Because Rinaldo filed a cross-motion in this matter, her argument that material issues of fact existed, precluding summary judgment, is substantially undermined. See Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 177 (App. Div.), certif. denied, 196 N.J. 85 (2008); Morton Int'l, Inc. v. Gen. Accident Ins. Co. of Am., 266 N.J. Super. 300, 323 (App. Div. 1991), aff'd, 134 N.J. 1 (1993), cert. denied, 512 U.S. 1245, 114 S. Ct. 2764, 129 L. Ed. 2d 878 (1994).
Moreover, the evidence Rinaldo relies upon fails to establish the existence of material facts sufficient to defeat summary judgment. While the court must view the evidence in the light most favorable to the non-movant, "it is evidence that must be relied upon to establish a genuine issue of fact. 'Competent opposition requires competent evidential material beyond mere speculation and fanciful arguments.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (emphasis omitted) (quoting Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 425-26 (App. Div. 2009)), certif. denied, 220 N.J. 269 (2015). "[B]are conclusions in the pleadings without factual support in tendered affidavits, will not defeat a meritorious application for summary judgment." Id. at 606 (quoting Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999)).
Rinaldo did not present any objective evidence that DeLuca unreasonably interfered with her use of the easement. She did not provide an expert report, survey or other data that showed the width of the easement at the points at which DeLuca's walls, patio and trees encroached the common driveway. In her reply brief, Rinaldo asserts for the first time that the "wall and trees extend approximately ten (10) feet into the easement." However, there is no citation to the record supporting this assertion. The photographs relied upon were inconclusive and failed to illuminate Rinaldo's contentions. Although expert testimony was not required to establish the allegedly dangerous condition created by DeLuca, it would have been helpful. In its place, Rinaldo relied upon Richard's subjective opinion that DeLuca's encroachments upon the easement caused a van to get stuck, his van to slide off the driveway and his brother to have a tire blown "on a large rock that Mr. DeLuca placed at the bottom of the easement." Similarly, there is no objective evidence regarding the size of the arborvitae or the extent to which they allegedly interfered with the use of the easement.
The record clearly shows that Rinaldo objected to DeLuca's modifications, just as DeLuca objected to Rinaldo's use of the area for parking. So, it is undisputed that DeLuca lacked the consent of Rinaldo for the modifications made. What is absent here is competent, credible evidence that DeLuca "unreasonably interfere[d] with [Rinaldo's] rights or change[d] the character of the easement so to make the use thereof significantly more difficult or burdensome." Tide-Water Pipe Co., supra, 42 N.J. at 605. We therefore conclude summary judgment was properly granted, dismissing Rinaldo's claim that DeLuca unreasonably interfered with her rights under the easement agreement.
Rinaldo also argues the trial judge erred in failing to provide reasons for the dismissal of count two, alleging trespass, and count three, alleging intentional and malicious interference with Rinaldo's use and enjoyment of her property. These arguments lack sufficient merit to warrant discussion beyond the following brief comments. R. 2:11-3(e)(1)(E). In count two, Rinaldo alleged that DeLuca trespassed onto plaintiff's land on or about April 19, 2012 and that such trespass "included the intentional and wrongful dumping of various unwanted materials from the Defendants' property onto the Plaintiff's property." Rinaldo has identified no evidence to support this allegation. The third count is plainly derivative of Rinaldo's claim that DeLuca unreasonably interfered with her rights under the easement agreement, adding only that DeLuca's conduct was "knowing, willful and intentional," warranting punitive damages and other relief. As we conclude that summary judgment was properly granted, dismissing the underlying claim, this count was properly dismissed as well.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION