Opinion
DOCKET NO. A-1787-14T2 DOCKET NO. A-3470-14T2
07-08-2016
BARBARA J. HERTZ, Plaintiff-Appellant, v. KENNETH TRAVERS, LYNNE TRAVERS and ESTATE OF MICHAEL NOWACKI, SR., Defendants-Respondents, and SIEGFRIED FEURY, LAURA OLIVIERO, BOROUGH OF LINCOLN PARK, A Municipal Corporation; BOROUGH ENGINEER; ZONING OFFICER and POLICE CHIEF, Defendants.
Barbara J. Hertz, appellant pro se. A. Michael Rubin, attorney for respondents Kenneth Travers and Lynne Travers in Docket No. A-1787-14. Graham Curtin, attorneys for respondent Estate of Michael Nowacki in A-3470-14 (James J. O'Hara, of counsel; Brian B. McEvoy, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-57-13 in A-1787-14, and Docket No. C-121-14 in A-3470-14. Barbara J. Hertz, appellant pro se. A. Michael Rubin, attorney for respondents Kenneth Travers and Lynne Travers in Docket No. A-1787-14. Graham Curtin, attorneys for respondent Estate of Michael Nowacki in A-3470-14 (James J. O'Hara, of counsel; Brian B. McEvoy, on the brief). PER CURIAM
Plaintiff Barbara J. Hertz has appealed the final disposition of two separate chancery matters she filed in the wake of an earlier chancery suit regarding the same property. We consolidate the appeals solely for the purpose of filing a single opinion as to both.
"What's past is prologue." In an earlier unpublished decision, we described the circumstances that generated the parties' dispute:
Plaintiff Barbara Hertz owns an approximately fifteen-and-a-half acre lot in Lincoln Park. This lot is located at the end of a meandering dirt path that crosses lots owned by defendants Michael and Ruth Nowacki, John and Caroline McLoughlin[,] and Kenneth and Lynn Travers . . . . The dirt path leading to plaintiff's lot is an extension of a roadway that defendant Borough of Lincoln Park paved around 1958 and has maintained since that time. Both the paved roadway and the dirt path are referred to as Orchard Drive.Plaintiff commenced an action seeking a declaration that the dirt path is a public road as well as an order compelling Lincoln Park to grade and maintain the portion of Orchard Drive leading up to her property; in the alternative, plaintiff sought a private easement over the neighboring property owners' lots along the route of the dirt road. Id. at 2. Lincoln Park obtained summary judgment because of a lack of evidence that the dirt path had ever been used as a public road or that it had ever accepted a dedication of the path as a public roadway. Later, however, on cross-motions for summary judgment, Judge Kenneth C. MacKenzie determined that plaintiff established "an implied grant of a quasi-easement" on the defendants' land "as well as an easement by necessity." Ibid. We affirmed substantially for the reasons given by Judge MacKenzie. The Supreme Court denied plaintiff's petition for certification. 189 N.J. 650 (2007).
[Hertz v. Nowacki, No. A-2305-04 (App. Div. Oct. 30, 2006) (slip op. at 1-2).]
MRS-C-55-99.
In 2010, plaintiff unsuccessfully moved in the same action for enforcement of Judge MacKenzie's orders. We mostly affirmed but also concluded a few of the forty-eight violations alleged by plaintiff warranted further development. Hertz v. Nowacki, No. A-0557-10 (App. Div. July 26, 2012). In response to that mandate, Judge Deanne M. Wilson ordered, on October 9, 2012, that Judge MacKenzie's determinations of the parties' rights remain unchanged; Judge Wilson also enjoined plaintiff from "stop[ping] for any reason" within the easement, and she appointed a surveyor to provide parameters for the easement.
The order also provided for the shifting of responsibility for the surveyor's fees depending upon the location of plaintiff's vehicle.
With that truncated description of the prior proceedings, we turn to the two appeals at hand.
I
On or about June 10, 2013, plaintiff filed a complaint that chiefly, if not entirely, sought relief regarding her alleged right to park her vehicle within, and the removal of all obstacles from, the implied easement. Following a two-day trial, Judge Stephan C. Hansbury entered judgment on August 11, 2014, declaring that: (1) "[p]arking is not included within the rights granted to plaintiff . . . in . . . MRS-C-55-99"; and (2) "boulders may be maintained on the grassy area prohibiting vehicles from crossing from the paved area of Orchard Drive onto the grassy area." Judge Hansbury provided a thorough written opinion in support of his judgment. On November 18, 2014, the judge denied Hertz's motion for reconsideration.
Plaintiff filed a timely appeal in MRS-C-57-13, arguing:
I. JUDGE MacKENZIE HAD AFFIRMED THE PLAINTIFF HAS ESTABLISHED[] RIGHTS IN THE PRE-EXISTING RIGHT OF WAY, ALSO FOR PARKING.
II. JUDGE MacKENZIE FOUND THE SERVIENT ESTATE LOTS ARE BURDENED, AND DENIED THEIR CLAIMS: THEY HAVE NO PRIVATE RIGHTS IN THE RIGHT-OF-WAY.
III. JUDGE WILSON'S ORDERS CHALLENGING JUDGE MacKENZIE'S FINDINGS AND DECISION[] WERE ADOPTED BY JUDGE HANSBURY.
IV. JUDGE HANSBURY NEGLECTED TO DISTINGUISH BETWEEN (A) THE PLAINTIFF'S APPURTENANT PAVED AND UNPAVED ROADWAY AND (B) AN OPTIONAL RIGHT TO CONSTRUCT A FUTURE DRIVEWAY WITHIN THE UNPAVED ROUTE.
V. THE COURT BELOW DID NOT APPROPRIATELY CONSIDER THE TITLE ISSUE WHICH HAD ESTABLISHED THE LAW OF THE CASE.
VI. SANCTIONS SHOULD RESULT AGAINST DEFENDANTS DUE TO THEIR RE-ASSERTING DENIED CLAIMS OF PRIVATE PROPERTY RIGHTS IN THE ROADWAY.
VII. PERMANENT RIGHTS IN THE DEDICATED PRIVATE VS. TRANSITORY WILD DEED EASEMENTS.
VIII. THE TOTALITY OF THE CIRCUMSTANCES SHOULD DIRECT AN APPROPRIATE JUDICIAL RESOLUTION.
IX. JUDGE HANSBURY'S INTERPRETATIONS OF LEGAL PRINCIPLES IN [THE] AUGUST 11, 2014 STATEMENT OF REASONS ARE CONTRARY TO ESTABLISHED PRINCIPLES OF LAW.
X. THE LOWER COURT'S MIS-INTERPRETATION OF THE LAW AND MIS-APPLICATION OF COURT RULES,
SHOULD BE PROVIDED NO DEFERENCE BY THE REVIEWING APPELLATE DIVISION COURT.We find insufficient merit in these arguments to warrant further discussion, R. 2:11-3(e)(1)(E), and affirm substantially for the reasons set forth in Judge Hansbury's thorough and well-reasoned opinions of August 11, 2014, and November 18, 2014.
For brevity's sake, we have omitted the many sub-headings in Hertz's points.
II
On August 21, 2014, plaintiff filed another complaint, which was assigned Docket No. MRS-C-121-14, against the same neighboring property owners, as well as others, seeking among other things: amendments of defendants' deeds to identify the easement declared by Judge MacKenzie's earlier judgment in various specific ways; removal of obstructions from the easement; dedication of the easement, or parts of it, to the public; and designation of a utility easement alongside the existing easement. Plaintiff filed a notice of lis pendens as well. Judge Hansbury granted the Estate of Michael Nowacki, Sr.'s motion to dismiss the complaint, pursuant to Rule 4:6-2(e), as well as the motion to discharge the notice of lis pendens; because his ruling logically extended to the claims against all defendants, the judge's January 13, 2015 order dismissed with prejudice the complaint as to all defendants.
Plaintiff appeals, arguing:
I. JUDGE MacKENZIE HAD AFFIRMED THE PLAINTIFF HAS ESTABLISHED, PRE-EXISTING RIGHTS IN THE RIGHT OF WAY, ALSO FOR PARKING.We find insufficient merit in these arguments to warrant further discussion, R. 2:11-3(e)(1)(E), and, as with the other appeal, affirm substantially for the reasons set forth in Judge Hansbury's well-reasoned decision. As the judge recognized, everything plaintiff sought in this new action was either resolved in the original action or could have then been considered and adjudicated. The entire controversy doctrine prohibits a litigant from filing successive lawsuits in pursuit of alternate claims or different forms of relief that arise from the same transactional facts presented to the same or different court in a prior lawsuit. See Joel v. Morrocco, 147 N.J. 546, 548 (1997) (recognizing that the entire controversy doctrine "requires parties to a controversy before a court to assert all claims known to them that stem from the same transactional facts, even those against different parties").
II. WHEN DISCOVERY WAS NOT COMPLETED, ISSUES RAISED IN C-121-14, WERE NOT RIPE FOR SUMMARY MOTION.
III. THE PLAINTIFF'S COMPLAINTS AUGHT NOT TO HAVE BEEN DISMISSED, BUT SHOULD HAVE BEEN PERMITTED TO BE AMENDED, RE: DEFENDANT MICHAEL NOWACKI.
IV. JUDGE WILSON['S] ORDERS INTERFERED WITH JUDGE MacKENZIE['S] FINDINGS AND DECISIONS.
V. THE TITLE ISSUE WAS NOT CONSIDERED: PERMANENT RIGHTS IN A PRIVATE DEDICATED ROAD[] VS. TRANSITORY WILD DEEDS.
VI. IN RE: SIEGFRIED FEURY'S DISMISSAL WITHOUT PREJUDICE IN C-157-13, AND LATER DEFAULT IN C-121-14, LEAVES HIM WITHOUT STANDING CONTRARY TO HIS CLAIMS (Not Argued Below).
VII. COURT RULE 1:7-5 GOVERNING TRIAL ERRORS, SHOULD BE CONSIDERED IN LIGHT OF JUDGE HANSBURY'S RELIANCE ON THE SAME INCORRECT REASONING IN BOTH CASES.
VIII. LIS PENDENS SHOULD HAVE REMAINED TO PROTECT FUTURE PURCHASERS UNTIL THE ISSUES ARE RESOLVED.
IX. JUDGE HANSBURY'S MISINTERPRETATION OF THE LAW AND MISAPPLICATION OF COURT RULES SHOULD BE PROVIDED NO DEFERENCE BY THE REVIEWING APPELLATE DIVISION COURT.
X. THE LOWER COURT'S DISMISSAL WITH PREJUDICE IMPROPERLY INTERFERES WITH THE "SUBJECT OF APPEAL."
Again, we have omitted the many sub-headings in these points. --------
The orders under review in both appeals are affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION