August 14, 2008
AUGUST HOFLING, JR. AND SHIRLEY HOFLING, PLAINTIFFS-RESPONDENTS,
ELIZABETH CSAKI, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Chancery Division, General Equity Part, Monmouth County, Docket No. C-176-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 5, 2008
Before Judges Sapp-Peterson and Baxter.
Defendant Elizabeth Csaki appeals from an October 18, 2007 order that established a real property boundary line between her property and that of the plaintiffs. The order in question awarded plaintiffs a disputed thirty-five foot strip of land along the common border.*fn1 We affirm.
Plaintiffs August and Shirley Hofling purchased property in Upper Freehold Township on February 5, 1969, by deed from Louis and Cora Valpreda. Defendant's parents owned an adjoining parcel from 1966 through 1995, when they conveyed it to defendant. At the time plaintiffs purchased their property from the Valpredas, they relied upon a survey prepared by Mitchell Mastrangelo dated January 28, 1969. A few years later, plaintiffs questioned the accuracy of that survey after discovering that the Mastrangelo survey was contrary to a hedge row that divided the two properties. Consequently, plaintiffs hired James Newell, who in March 1976 issued a survey that was at variance with the earlier Mastrangelo survey. The Newell survey concluded that a strip of land approximately thirty-five feet wide along the common boundary between the two properties belonged to plaintiffs and not to defendant. At an unspecified time between 1969 and 1995, plaintiffs cut down the orchard that defendant's parents had planted in the thirty-five foot strip because they believed the land belonged to them rather than to defendant.
In 2004, plaintiffs hired surveyor Harris Surveying, Inc. (Harris) to prepare another survey. Like the Newell survey, the Harris survey concluded that the disputed property belonged to plaintiffs.
On June 27, 2005, plaintiffs filed a complaint in the Chancery Division in which they sought to quiet title and reform their deed description to include the disputed thirty-five foot parcel. Defendant answered, acknowledging the dispute, but asserting that she was the rightful owner of the disputed property. She also asserted that if the land was not hers by deed, then it had become so through adverse possession. After the litigation commenced, defendant hired Princeton Junction Engineering (PJE) to survey the property. On October 10, 2005, Ted Pivovarnick of PJE issued a survey that supported defendant's claim that she owned the thirty-five foot strip.
By agreement of the parties, on January 24, 2006, the judge issued an order appointing a Survey Commission pursuant to N.J.S.A. 2A:28-1. Three members were appointed, two of whom were land surveyors and the third an attorney with considerable experience in real estate matters. On February 14, 2006, the three commissioners took their oaths of office and commenced their work. They held hearings on June 1 and July 31, 2006,*fn2 during which the parties and their experts provided testimony and referred to the voluminous documents that had been previously submitted to the commissioners. Plaintiffs had submitted the 1969 Mastrangelo survey, the 1976 Newell survey and the 2004 Harris survey as well as more than fifty deeds, surveys, field notes and photographs. Defendant had submitted the February 23, 2006 and October 12, 2006 survey opinions prepared by PJE, a letter report dated October 16, 2006 by R. Niels Sperling of L.G.A. Engineering, Inc. (LGA), and approximately seven other deeds and surveys. The boundary commissioners also conducted a site inspection of the two properties during which they walked all the boundaries for both properties.
After the boundary commissioners had completed their site visit to the properties and taken testimony on June 1, 2006, defendant's surveyor, Ted Pivovarnick of PJE, re-visited the site and issued a second survey on July 18, 2006, in which he opined that plaintiffs' deed description should be amended in order to grant them even more land than they were seeking. Pivovarnick returned to the Boundary Commission and testified accordingly on July 31, 2006. Consequently, at the conclusion of the proceedings before the Boundary Commission, three surveys, the Newell survey, Harris survey, and the July 18, 2006 Pivovarnick survey, all favored plaintiffs' position.
Before the boundary commissioners rendered their decision, defendant requested a ten-day extension to permit her to search for the actual "Point of Beginning" stone (POB) that was referenced in her deed description. Ultimately, the Chancery Division granted that additional ten-day extension. Defendant attempted to find that POB because, as she testified before the Boundary Commission, the surveyors had all ignored a stone marker which she knew from accounts from her parents was the point of beginning referenced in her and her parents' deed descriptions. Within a month or so, defendant claimed to have found the stone and asked the boundary commissioners to return and inspect it. According to their report, they did so on November 30, 2006.
On December 4, 2006, the commissioners issued a detailed ten-page report in which they concluded that: the boundary between the tract in question is as located by the Harris survey. That conclusion is founded upon the location and long dependence upon the Ancient Stone Monument, the geometry between them in accordance with the deed descriptions and the evidence of possession and treatment of the physical improvements as an acceptance and acquiescence on the ground as to the boundary location.
In the course of its report, the Commission explained in painstaking detail the reasons why its members concluded that the various surveys prepared over the years were either correct or in some cases, incorrect. The commissioners supported their conclusions with references to monument calls and deed descriptions.
On December 3, 2006, defendant filed an objection to the report of the boundary commissioners and requested a trial de novo in the Chancery Division on the following grounds: 1) the commissioners focused entirely on the purported starting point of the defendant's property and failed to take into account that plaintiffs' property line along Millers Mill Road was originally established as a straight line, but that Millers Mill Road, as currently laid out, curves approximately thirty feet toward plaintiffs' property and consequently, the commissioners improperly took thirty feet of defendant's property and proposed to transfer it to plaintiffs; 2) the commissioners failed to thoroughly uncover and examine a stone across Burlington Path Road to determine whether or not it was intended as a property marker; and 3) the commissioners failed to take into account defendant's and her predecessors' in title occupancy and possession of the thirty-foot strip for more than two centuries even though such possession was "open, notorious, hostile, adverse and under claim of right, thereby establishing title . . . ."
After receiving defendant's objections and request for a trial de novo, the Chancery Division issued an order on May 23, 2007, in which it afforded defendant additional time to commission a new survey. The court directed the commissioners to reconvene if any new survey obtained by defendant conflicted with the commissioners' report. The order of May 23, 2007 also specified that in accordance with the controlling statutes, if defendant did not request a jury trial, the matter would proceed to trial in a summary fashion based on the record made before the Boundary Commission, with defendant bearing the burden of establishing that the findings of the commissioners were "inaccurate or wrong and should be set aside."
Defendant was unable to obtain an expert opinion that supported her position that she was the owner of the disputed strip of land. The record reflects that defendant, through her attorney, agreed to proceed in a summary manner with the record being limited to the commissioners' report and the record made before the commissioners. On August 3, 2007, plaintiffs filed a motion for summary judgment in which they sought to dismiss defendant's exceptions to the Boundary Commission Report and file an amended deed utilizing a survey description consistent with the survey descriptions prepared by their three experts.
After hearing oral argument on October 16, 2007, Judge Cavanagh issued an oral ruling the next day in which he made detailed findings of fact and conclusions of law and granted plaintiffs' motion for summary judgment. A confirming order was entered on October 18, 2007. The judge reasoned:
[This] entire case began because there is a belief that the original survey done by Mr. Mastrangelo in 1969 appeared to the plaintiffs to be incorrect. Then began a series of additional surveys. We have the Newell survey, the Harris survey, the two PJE surveys, and the final survey, the Pivovarnick survey. Each of those were dealt with at length [already] and I am not going to dwell on them any further except to point out that [all four] as well as the conclusion of the two surveyors on the Commission, Mr. Smith and Mr. Sypniewski, all came to the same conclusion regarding the situation in question. . . . The strip in question is the property of the plaintiff[s].
It is also pertinent to note that the defendant's family engaged two of the surveyors, Mr. Pivovarnick and Mr. Sperling of LGA. As a result, the defendant finds herself in the rather unique position of having engaged two experts that agree with the plaintiffs . . . .
I confirmed yesterday that [defendant is unable] to produce anyone with an engineering background or a survey background to support [her] claim. This is not because defendant didn't try. It is because on several occasions people with the expertise to conduct surveys and analyze drawings and measurements in a professional capacity did not agree with her assertions regarding the thirty-three foot strip. [My predecessor, retired] Judge Lehrer in an . . . in an attempt to accommodate defendant and give her every reasonable opportunity . . . put off the trial date in May 2007 . . . .
So that not only is there an inability of the defendant to produce expert testimony to support [her] position, but the defendant would ask that the court essentially disregard the findings of six experts, two on the Commission, two surveyors, two hired by each of the parties, all of which come to the same conclusion, and allow her assessment as a layman having no expertise in that field to triumph. That is essentially the proposition that the defendant seeks to have the court [accept].
So my assessment of the arguments of the defendant is really affected substantially by the fact that there isn't a scintilla of professional testimony offered through the exhibits or through the surveys [to support defendant's position].
Now unlike most cases where the court is presented with a battle among experts or at least between two experts, here . . . I'm evaluating a neutral finding [by the members of the Boundary Commission]. Of those three parties, only Mr. Eastman is not a surveyor, although he is an attorney who practices extensively in the real estate field . . . . But the Commission undertook to visit the property and go through a substantial amount of effort in order to try and evaluate and resolve the questions that were raised.
They discussed the [stone] monument. They discussed the stone the defendant speaks of.
They discussed the Harris survey and how they reached their conclusions. There are approximately six pages of actual findings, some twelve paragraphs, which I would characterize as findings and which I am going to accept as accurate, which delineate their reasoning and their findings. They distinguish the Mastrangelo survey for the reasons set forth in paragraph ten [of their report]. They enumerate all of the different exhibits that they reviewed and quite frankly, I am quite impressed with the amount of effort and time spent.
The exhibits contain a list of documents submitted by the defendant. Again, it makes it patently clear that she actively participated, testified and submitted documentation. Frankly, she just doesn't concur with the result.
After explaining his reasons for accepting the report of the Boundary Commission and concluding that there were no genuine issues of material fact, for the sake of completeness, Judge Cavanagh also explained his reasons for rejecting defendant's claim of adverse possession. He explained that the aerial photograph of the two pieces of property showed a hedge row between the properties which, according to the testimony of an independent witness, always served as the boundary line between the two properties. That hedge row was located in a manner that supported plaintiffs' position. Second, the judge observed that a claim of adverse possession requires thirty years of uninterrupted adverse use. The judge noted that defendant herself conceded that her parents first bought the property in 1965 and at some time before the thirty years of adverse possession would have expired in 1995, plaintiffs destroyed the orchard that defendant claimed would have afforded her the right to adverse possession. For those reasons, the judge rejected her claim.
On appeal, defendant argues that the judge erred when he refused to permit her to present witnesses in the Chancery Division proceedings, a right which she contends was especially important because the commissioners' report was based upon a number of impermissible net opinions.
We review the trial court's grant of summary judgment de novo. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Employing the same standard the trial court uses, ibid., we review the record to determine whether there are material factual disputes and, if not, whether the undisputed facts viewed in the light most favorable to the party opposing the motion nonetheless entitle the moving party to judgment as a matter of law. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
Although phrased in different ways, defendant's principal argument is that she was prevented, on motion for summary judgment, from challenging the report of the Boundary Commission because she was not permitted to cross-examine the Commissioners in the proceedings before the Chancery Division. Indeed, she argues that cross-examination of the Boundary Commissioners is as much a part of the right of due process as is the right to cross-examine a court-appointed expert in a child custody dispute. We disagree.
First, as plaintiffs correctly argue, defendant had the right and the opportunity to cross-examine anyone, the Commissioners or the plaintiffs' experts, by way of depositions in the six-week period afforded by the judge. She chose not to do so.
Second, the record amply supports Judge Cavanagh's conclusion that there were no genuine issues of material fact. Accordingly, the matter was ripe for determination by way of a motion for summary judgment. Ibid. A party is only entitled to defeat a motion for summary judgment and proceed to a trial with the attendant right of cross-examination when there are such genuine issues. Id. at 540. The judge must decide whether: the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact-finder to resolve the alleged disputed issue in favor of the non-moving party . . . . If there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2. Ibid. The import of our holding is that when the evidence "is so one-sided that one party must prevail as a matter of law," the trial court should not hesitate to grant summary judgment." [Ibid. (citations omitted)]
That was exactly the situation existing at the time Judge Cavanagh granted plaintiffs' motion. There were no genuine issues of material fact. Every expert report, including those procured by defendant herself, favored plaintiffs. There was but one "unavoidable resolution" of the dispute. See ibid. And that one resolution favored plaintiffs. Accordingly, the judge was entitled, and indeed required, to grant summary judgment in their favor. Under those circumstances, defendant was not entitled to a trial.
Third, the Boundary Commission statute itself contemplates the very procedure Judge Cavanagh used here. N.J.S.A. 2A:28-3 provides that if a party notifies the court of its intention to challenge the report of a Boundary Commission, "the court shall hear the matter in a summary manner with a jury, if a jury be demanded . . . and the issue shall be tried and determined as in other cases of a civil nature at law, in said court." N.J.S.A. 2A:28-3 (emphasis added). Were we to accept defendant's argument that she was entitled to a full trial in the Chancery Division with the opportunity to present and cross-examine witnesses, the summary proceedings contemplated by the Boundary Commission statute would be defeated. Indeed, the expertise of the three Boundary Commissioners is the very reason why a summary proceeding, rather than a plenary trial, is provided for by N.J.S.A. 2A:28-3. Were we to conclude otherwise, the hearings before the Boundary Commission, at which both sides were entitled to call witnesses and cross-examine opposing witnesses, would be rendered a virtual nullity. We have been presented with no meritorious basis upon which to conclude that where three duly qualified members of the Boundary Commission and three experts all supported the position of plaintiffs, that defendant should have been afforded the opportunity for a plenary hearing. As Judge Cavanagh aptly observed, defendant "actively participated, testified and submitted documentation [before the Boundary Commission]. . . . [S]he just doesn't concur with the result."
Nor are we persuaded by defendant's argument that the report of the Boundary Commission consists of a net opinion. An opinion is deemed a net opinion when the expert fails to provide the "'why and wherefore'" supporting his or her opinion and provides instead "'just a mere conclusion.'" Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Here, we are satisfied, as was Judge Cavanagh, that the boundary commissioners satisfied the Jimenez requirements and provided detailed reasons to support their conclusions. We reject defendant's characterization of their report as a mere net opinion.