On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, C-179-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sapp-Peterson.
This is an appeal and cross-appeal from orders of the Chancery Division denying defendant Gregorio Spinelli counsel fees and costs pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1(a)(1), and Rule 1:4-8, and denying reimbursement for costs he incurred to remove a brick wall and barbecue pit encroaching upon his property. Plaintiff Katherine Blekicki cross-appeals the court's denial of her application for counsel fees and costs.
Judge MacKenzie denied defendant's claim for counsel fees and costs, finding that plaintiff, in good faith, believed that the encroachments were "grandfathered" and therefore exempt from removal. In addition, the judge determined that because defendant resorted to self-help to remove the encroachments while the dispute was pending, he was not entitled to reimbursement for costs he incurred to remove the encroachments. In denying counsel fees and costs to plaintiff, the court found that plaintiff failed to establish any damages. We affirm both the appeal and cross-appeal.
The salient facts are not disputed. Defendant purchased the property located at 6 Bradley Road, Morris Township, in 2003. The property survey noted the existence of a barbecue pit and a brick wall that encroached on the property by approximately two and one-half feet. The seller's disclosure statement did not indicate that the adjacent property owner asserted or threatened to assert a claim of right over that portion of defendant's property where the barbecue pit and wall encroached.
Shortly after taking possession, defendant commenced discussions with plaintiff about his intention to remove the encroachments because of his landscaping plans. According to defendant, plaintiff agreed with his plans but did not take any action to remove the encroachments. Defendant offered to sell to plaintiff a portion of his land, which would include the area where the barbecue pit and brick wall were located, but plaintiff declined the offer.
In April 2004, defendant secured estimates to have the brick wall and barbecue pit removed ranging from $1,400 to $2,200. Plaintiff advised defendant that she felt the estimates were too high and told defendant that she and her sister would remove the encroachments. According to defendant, following this discussion, rather than removing the encroachments, plaintiff avoided him, causing him to seek resolution by way of written correspondence in June 2004. Plaintiff did not respond to this correspondence.
Two months later, defendant's attorney sent a letter to plaintiff requesting that she remove the encroachments. Plaintiff's attorney responded to this correspondence, indicating that plaintiff wanted to secure her own survey of the property. Plaintiff's survey also revealed that the barbecue pit and brick wall encroached onto defendant's property.
Subsequent to that survey, defendant spent $2,300 to remove the encroachments. Plaintiff then filed a complaint in the Chancery Division claiming adverse possession.
Defendant moved for summary judgment, contending that (1) plaintiff could not prevail on her claim for adverse possession, (2) he was entitled to take action to abate a nuisance that interfered with the reasonable use of his property, and (3) he was also entitled to be reimbursed for the costs he incurred to abate the nuisance, as well as counsel fees. Plaintiff filed a cross-motion for summary judgment premised upon her claim of adverse possession of the disputed property.
In a written decision, Judge MacKenzie denied defendant's motion, ruling that "defendant has not established that the [barbecue pit and brick wall] were such substantial nuisances which permitted him to remove them himself, without absolute prior notice to the plaintiff." The court also concluded, "at this time this court does not believe that defendant is entitled to reimbursement for his costs and counsel fees since at the time the defendant removed the items, they were removed voluntarily while a clear dispute as to who owned the property and the items was occurring."
Likewise, the judge also denied plaintiff's cross-motion for summary judgment. The court viewed plaintiff's claims that her use of the encroachments was known throughout her family and neighborhood for years as unsubstantiated and insufficient "to create an adverse claim of title to the property." Nonetheless, the court concluded that "[p]laintiff has left the court with several unanswered material questions that must be resolved before judgment could be entered in her favor." The court also denied plaintiff's counsel fee application because the ...