On appeal from Superior Court, Chancery Division, Burlington County.
Shebell, Long and Landau. The opinion of the court was delivered by Landau, J.A.D.
[270 NJSuper Page 461] These consolidated appeals by plaintiff Nancy Fisher (plaintiff) arise from the denial of plaintiff's motion, heard just one week before trial, to amend the pleadings to join an additional party and to assert new contradictory theories of liability (Fisher I),*fn1 and from the Law Division's dismissal of plaintiff's subsequent complaint
on grounds of collateral estoppel. (Fisher II).*fn2 The second complaint asserted theories precluded by the denial of plaintiff's motion to amend the pleadings in Fisher I against different defendants. We consider these two appeals in a single opinion because both cases involve substantially similar operative facts, and affirm.
Plaintiff is the owner of landlocked real property known as Block 3201, Lot 14 on the Tax Map of Southampton Township. The property, used mainly for logging purposes, has been owned by plaintiff's family for the past 150 years. For public road access, plaintiff and her family have used a ten to twelve foot wide sand road that traverses the adjacent Block 3201, Lot 3 ("the servient tenement") to Friendship Road, formerly Powell Place Road.
On April 6, 1987, Allen Joyce and Mary H. Joyce, the previous owners of the servient tenement, signed an ingress/egress easement agreement conveying to plaintiff and her since deceased husband, their successors and assigns, and to the owners of lots 8, 13, and 16, use of the sand road in perpetuity. Under the agreement, the Joyces reserved the right to relocate the sand road on their property, so long as such relocation "provide[s] access to Powell Place Road or New Road for ingress and egress of the same type and quality that presently exists."
It later became known that when the Joyces executed the agreement they were not the record owners of the servient tenement because, three weeks prior to executing the April 1987 agreement, the Joyces, who owned a substantial amount of land in the area, executed a deed to the Yates transferring a parcel of property which included the servient tenement. The Yates assert that the deed was in error, to the extent it purported to transfer the servient tenement. They note that, although the deed's metes
and bounds description included the servient tenement located in Southampton Township, it described all property conveyed as being in Tabernacle Township, where the lands intended to be conveyed were located. The copy of the deed contained in the record on appeal has the name "Southampton" crossed out, supposedly before the deed was executed. Significantly, on May 10, 1988, the Yates executed a deed which reconveyed to the Joyces for the nominal consideration of $1.00 the property located in Southampton (the servient tenement). The Yates retained all property located in Tabernacle township.
On the same date, the Joyces transferred to Yates Enterprises of New Jersey, Inc. (Yates Enterprises) one portion of Block 3201 Lot No. 3, located in Southampton Township, for $37,488. On January 31, 1989, the Joyces transferred the remainder of Block 3201, Lot No. 3, including the servient tenement, to Yates Enterprises for an additional consideration of $575,000.00. This, according to the Yates, evidenced the Joyces' obvious original intent in 1987 to transfer to them only the property located in Tabernacle Township, and not the Southampton property containing the servient tenement.
Following their 1989 purchase, the Yates sought to obtain a major subdivision approval from the Township of Southampton in order to build a residential development in Block 3201, Lot 3. To facilitate development, the Yates sought to relocate the easement given by the 1987 agreement. The relocated easement was over a fifty foot wide asphalt-paved roadway which required plaintiff to make a left turn from the sand road into the paved right of way leading through a partial cul-de-sac to a road which provided direct access to Powell Place Road. Over plaintiffs' objection, the local planning board gave final approval to the Yates for the entire subdivision, including the relocated easement.
On April 26, 1991, plaintiff filed a complaint for declaratory judgment that the relocated easement was not "of the same type and quality that presently exists," as required by the April 1987 agreement, and also sought other relief of an equitable nature.
At the time that complaint was filed, the servient tenement was owned by the Yates' corporate entity, Yates Enterprises. However, the Yates' responsive pleadings admitted personal ownership of the servient tenement as alleged in the complaint. The Yates counterclaimed for a judgment declaring the relocated easement of the "same type and quality" as the one given by the agreement.
On March 17, 1992, plaintiff sought a temporary restraining order to prevent the Yates from physically blocking the sand road. In a letter opinion dated March 19, 1992, Judge Myron H. Gottlieb denied the application for a temporary restraining order. The opinion also memorialized an agreement between both counsel (plaintiff was then represented by different counsel) to enter into a stipulation of facts and to resolve the case on cross-motions for summary judgment.
On May 22, 1992, a hearing on the cross-motions was held. The sole issue raised and considered at the hearing was whether the relocated easement was "of the same type and quality" as the easement granted by the agreement. Plaintiff's counsel argued that the new easement was not of the same type or quality because of the likelihood that children would be playing in the area due to residential development planned along the relocated easement. The Judge found that factually and legally, the relocated easement was of the same type and quality as the old easement as it provided ready road access. In consequence, the Judge entered summary judgment for the Yates and ordered that a previously filed lis pendens be lifted.
Plaintiff then dismissed her attorney, and on May 29, 1992, filed a pro se motion seeking a stay pending appeal of the lis pendens order. Plaintiff's new counsel filed a motion for reconsideration, and Yates cross-moved for attorneys' fees. Following oral argument, the ...