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Mahony v. Danis

December 23, 1983

LEO H. MAHONY, EDWARD SAMUELSEN AND 3530 REALTY CORPORATION, PLAINTIFF-RESPONDENTS,
v.
STEPHEN DANIS AND CLAIRE DANIS, HUSBAND AND WIFE, DEFENDANTS-APPELLANTS



For dismissal -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For reversal and remandment -- Justice Schreiber. Handler, J., concurring. Schreiber, J., dissenting. Handler, J., concurring in the result.

Per Curiam

ORDER

This matter having been duly considered and the Court having determined that certification was improvidently granted;

It is ORDERED that the within appeal be and hereby is dismissed.

HANDLER, J., concurring.

Following presentation of briefs and oral argument on the merits of this controversy, the Court has determined that certification of this case was improvidently granted. I agree with this disposition.

The case involves a dispute between principals of a realty corporation that acquired property, secured a municipal zoning variance and erected and operated an office building. In conjunction with this enterprise a portion of the adjoining property of the defendants was used for parking necessary for the office building use. The individual defendant husband was a principal of the corporation. He personally undertook to secure the necessary zoning variance on behalf of the corporation and his co-owners. At this time, the availability of defendants' adjoining property for office building parking purposes was expressly made known to the local Board of Adjustment. Such additional parking was made a condition to the grant of the variance.

This state of affairs continued for approximately ten years. The defendants thereafter refused to acknowledge that a portion

of their property had thus been committed to the office building parking use. The resulting lawsuit eventuated in the trial court determination that defendants' property was dedicated to parking incidental to the operations of the adjoining office building consistent with the original grant of the variance and its continuous unbroken use for that purpose. Perceiving no special issues or significant reversible error, the Appellate Division affirmed this judgment without opinion. I am now satisfied that this case requires no further appellate treatment and should not have been certified by this Court.

In exercising our discretionary authority to decide which cases should be certified for final adjudication by the Supreme Court, we must be governed by the standards prescribed for the discharge of this responsibility. R. 2:12-4. The application of these standards in this case reveals no substantial grounds for certification. See In re Route 280 Contract, 89 N.J. 1 (1982).

There are in this matter, arguably, several reasons that could be advanced to justify the grant of certification. One is that the appeal "presents a question of general public importance which has not been but should be settled by the Supreme Court." R. 2:12-4.

The trial court purported to resolve the conflicting claims of the parties upon the pleadings and affidavits, without a plenary hearing. The challenge to this procedural disposition goes only to the validity of the grant of a motion for summary judgment. The legal standards for summary judgment have been long settled. So viewed, the appeal presents no question of "general public importance" meriting our review and resolution. R. 2:12-4.

The trial court also characterized its judgment in favor of plaintiffs as involving the doctrine of "easement by estoppel." Our courts previously may not have considered or applied a legal doctrine so identified or denominated. Nevertheless, it seems clear that general equitable considerations dominated the trial court's determination of the controversy. There is little doubt that the trial court reached its ultimate conclusion in this case by applying traditional, well-understood principles of equity. It

is not remarkable that such equitable principles were applied to resolve a controversy involving interests in real property. In assessing the significance of a case for appellate purposes, this Court need not be bound by the labels, or even the rationale, utilized by the court below. Here, the trial court's characterization of its conclusion in terms of a novel legal doctrine does not transmute the case into one of "general public importance" demanding further exposition by this Court.

Another plausible ground for certification might be that the subject matter of this litigation "calls for an exercise of the Supreme Court's supervision." R. 2:12-4. The controversy here is devoid of any problems that invite the supervision or superintendence of this Court. It is a case that hardly transcends the immediate interests of the litigants. Their dispute should have been steered to settlement long before it engaged the considerable efforts and attention of three courts -- the Superior Court, Law Division, the Superior Court, Appellate Division, and this Court.

I am not persuaded that this case should invoke our certification authority in the "interest of justice." R. 2:12-4. The record fairly suggests that for a good many years the defendants knowingly derived advantages from the arrangement, which now has resulted in an encumbrance upon a portion of their property consistent with the benefits they enjoyed. The result reached by the trial court, regardless of the legal doctrine employed, is not palpably wrong, unfair or unjust. As noted, the judgment affects only the parties to this particular dispute. The rights of innocent persons, or an unwary public, are not jeopardized. Additionally, as between the parties, there has been no showing of an egregious miscarriage of justice. Consequently, whether the result is reached by the construct of an easement by estoppel or by an estoppel predicated on traditional principles of equity, I am unconvinced that the case presents any judicial imperative to which we must respond by granting certification.

Typically, a case for certification encompasses several of the relevant factors controlling the exercise of the Court's discretionary appellate jurisdiction. Even though satisfaction of any one of the criteria governing certification would suffice to invoke the affirmative exercise of this Court's discretionary appellate authority, none forcefully appears in this appeal. We ought not to divert judicial attention from worthy cases to those offering only "noetic perjinkities." Nottelson v. Smith Steel Wkrs. D.A.L.U. 19806, 643 F.2d 445, 457 (7 Cir.1981), cert. den. 454 U.S. 1046, 102 S. Ct. 587, 70 L. Ed. 2d 488 (1981) (Pell, J., dissenting, criticizing majority in religion discrimination case). While it is theoretically possible to identify an issue of some intellectual novelty or academic curiosity in this case, I find it difficult to escalate such an issue, without more, into a matter of general public significance requiring resolution by this Court. I find similar difficulty in regarding the matter as calling for this Court's supervision or attention or otherwise implicating the clear interests of justice.

Notwithstanding an initial grant of certification, a current assessment of the issues reveals that significant grounds for entertaining this appeal are wanting. Accordingly, I believe we act correctly and responsibly in rescinding the grant of certification. This course conforms to the purpose and spirit of our rules of practice. It also comports with the conventional wisdom inherent in the conservation of finite judicial resources. See Idaho Dept. of Employment v. Smith, 434 U.S. 100, 103, 98 S. Ct. 327, 329, 54 L. Ed. 2d 324, 329 (1977) (Stevens, J., dissenting in part) (inappropriate to grant certiorari with respect to a decision that does not create a conflict and does not involve a question of national importance). Where, as in this case, a further consideration of the matter brings us to a belated realization that a cause is not truly certifiable, it would, in my view, be a ...


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