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Ellison v. Evergreen Cemetery

Decided: July 9, 1993.

BARRIE B. ELLISON, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF CARL B. ELLISON; LOUIS FRIEDMAN AND CHERYL A. FRIEDMAN, T/A FRIEDELL ASSOCIATES, A NEW JERSEY PARTNERSHIP, PLAINTIFFS-APPELLANTS-CROSS-RESPONDENTS,
v.
THE EVERGREEN CEMETERY, A CEMETERY ASSOCIATION INCORPORATED UNDER THE LAWS OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT-CROSS-APPELLANT, AND BARBARA W. DOWNS, *FN1INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF HARRY P. DOWNS, JR.; AND WARNOCK AUTOMOTIVE GROUP, INC., A NEW JERSEY CORPORATION, DEFENDANTS-RESPONDENTS. THE EVERGREEN CEMETERY, A CEMETERY ASSOCIATION INCORPORATED UNDER THE LAWS OF THE STATE OF NEW JERSEY, PLAINTIFF, V. CARL B. ELLISON, BARRIE ELLISON, LOUIS FRIEDMAN, DAVID FRIEDMAN, AND HEADQUARTERS DATSUN, INC., DEFENDANTS



On appeal from Superior Court, Law Division, Morris County.

Petrella, D'Annunzio and Keefe. The opinion of the court was delivered by Petrella, P.J.A.D.

Petrella

Summary judgment was granted in the Law Division in favor of defendant The Evergreen Cemetery (Evergreen), resulting in the dismissal of plaintiffs' complaint. Plaintiffs had sought certain declaratory and equitable relief regarding the validity of 1964, 1965 and 1968 leases of cemetery land along Ridgedale Avenue in Morristown from Evergreen to their predecessor in interest. The motion Judge assumed for purposes of the summary judgment motion that Evergreen lacked capacity to enter into certain ground leases between 1964 and 1968 under the then extant Rural Cemetery Act, N.J.S.A. 8:1-1 et seq., but nonetheless refused to fashion a remedy because the alleged statutory incapacity (since removed by the 1971 adoption of Title 8A) on the part of Evergreen was essentially irrelevant to the plaintiffs' problems with their subleases.

As indicated, plaintiffs sued to invalidate certain ground leases its predecessor in interest entered into with Evergreen on August 7, 1964, November 1, 1965, and May 1, 1968, for portions of land owned by the cemetery along Ridgedale Avenue and to obtain the opportunity to renegotiate the rental terms. Those leases, which terminate in the year 2009, contain provisions which allow for decennial redetermination of the annual rental amount. Subleases of the property from plaintiffs' predecessor in interest to various entities do not provide for increases in rental value under the same formula. It developed that, at least from and after 1989, plaintiffs may be disadvantaged in their lease arrangements with the subtenants.

On appeal plaintiffs argue that the uncontradicted "fact" was that Evergreen lacked any authority to enter into the ground leases and that this, as well as the defenses asserted by Evergreen, allegedly raised fact issues as to the state of mind of the lessees, and therefore requires reversal of the June 12, 1992 order for summary judgment. Plaintiffs also challenge the September 11, 1992 order of the trial court awarding litigation costs and

counsel fees (amounting to approximately $25,000) against them under the "Frivolous Litigation Statute," N.J.S.A. 2A:15-59.1.

In its cross-appeal, Evergreen asks us to decide the validity of the three leases which were entered into in 1964, 1965 and 1968 between Evergreen and Carl B. Ellison, plaintiffs' predecessor in interest. It asserts there are at least five other leases that might be questioned based on the motion Judge's assumption that the cemetery violated the Rural Cemetery Act. We might well question the propriety of a request in this court for such a declaratory ruling where there is no case and controversy yet, and those other lessees are not parties to the litigation. There may also be a question of the standing of Evergreen to cross-appeal since the judgment on appeal was entirely in its favor as to the three leases involved here. Generally, only a party aggrieved by a judgment may appeal from it. See Howard Savings Institution v. Peep, 34 N.J. 494, 499, 170 A.2d 39 (1961); see also Vassallo v. Bell, 221 N.J. Super. 347, 355, 534 A.2d 724 (App.Div.1987); Tassie v. Tassie, 140 N.J. Super. 517, 524-525, 357 A.2d 10 (App.Div.1976). Moreover, appeals are taken from judgments, not from oral opinions or reasons. Glasser v. Downes, 126 N.J. Super. 10, 15, 312 A.2d 654 (App.Div.1973), certif. denied, 64 N.J. 513, 317 A.2d 726 (1974). Our usual rule is that an order or judgment will be affirmed on appeal if it is correct, even though the Judge gave the wrong reasons for it. Isko v. Planning Board of Tp. of Livingston, 51 N.J. 162, 175, 238 A.2d 457 (1968).

We need not burden this opinion with an extensive review of the three leases, their provisions and the history of the arbitrations.*fn2 We do note the plaintiffs' argument with respect to the fact that the same law firm represented both Evergreen, as the original lessor, and the original lessees at the inception of the ground

leases in 1964 and for some time thereafter. Contemporary standards of practice recognize that dual representation is fraught with dangers and is generally disapproved.*fn3 The record does not disclose the details of what transpired at that time, but that issue does not affect our determination with respect to the judgment entered in this case.

I.

At the time of the three Evergreen-Ellison leases, the Revised Statutes provided in N.J.S.A. 8:2-47 (L. 1878, c. 137, § 1) (upon which plaintiffs rely):

A cemetery association incorporated under sections 8:1-1 to 8:1-5 of this title or under any special act may sell and dispose of such part of its lands as have not been laid out into burial plots or lots, and use the proceeds of such sales to pay its debts and liabilities and to improve its cemetery. [ Ibid. (emphasis added).]*fn4

The word "dispose" does not necessarily mean sell. See Black's Law Dictionary 423 (5th ed. 1979). As subsequent statutes use the words rents or leases, it is therefore at least a debatable question whether the term "dispose" as used in the above-quoted statute means something different than "sell." For example, L. 1881, c. 133, § 1 (N.J.S.A. 8:2-29), provided:

The rents, issues, profits, income and revenues derived from any and all lands lying within the bounds of any cemetery or burial ground belonging to, or used by or held in trust for any incorporated cemetery association, may be taken and sequestered under and by virtue of the orders and decrees of the court of chancery, according to the rules and practice of such court, and applied by such court to the payment of any judgment recovered in any of the courts of this state against the cemetery association owning or using such lands; and the court of chancery may appoint a receiver of such rents, issues, profits, income and revenues, and make such order regarding the same as may be just and equitable.

This section shall not be construed to make such lands liable to seizure, taking or sale by virtue of any judgment, decree, order, execution or other process made, rendered by or issued out of any court in this state. [Emphasis added.]

Although plaintiffs argue that Evergreen lacked statutory authority to lease (as opposed to sell) land in 1964, 1965 and 1968 under the plain language of N.J.S.A. 8:2-47 (L. 1878, c. 137, ยง 1), another section of former Title 8 dealt with the sale or other Disposition of cemetery ...


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