On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Bergen County, Docket No. DC-003883-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2008
Before Judges A. A. Rodríguez and Waugh.
Megan Healy filed a suit pro se in the Special Civil Part, seeking reimbursement from adjoining landowners Alan and Suzie Antaki for "damages incurred due to illegal trespassing and defacing of [her] property." She now appeals from a judgment of no cause of action following a bench trial. We affirm.
Healy alleged that the Antakis destroyed the natural tree and shrub buffer on her property that bordered their lots. She also alleged that the Antakis attempted to claim it as their own, pursuant to adverse possession, by landscaping it to match their property and widening their gravel driveway over the property line. This buffer consisted of mature Maple, Ash and Atlantis trees, and of many bush species, including primarily Burning bushes. The Antakis filed an answer denying the allegations and asserting that Healy's "statements are completely untrue."
At trial, Healy and her boyfriend Fred Guido testified. According to Healy, after an absence from her home due to health problems, she noticed a "hole" in the buffer because trees and shrubs had been cut down. She also discovered a portion of the Antakis' landscape encroached on her property. Fearing an adverse possession claim by the Antakis, Healy erected a fence around the perimeter of her property and sued for its costs. Guido testified that Mr. Antaki admitted, in his presence, that he had cut down the buffer and that this constituted a favor to Healy. The Antakis and their babysitter, Katrina Hutton, testified that any trees cut down were on their property. The only thing removed from Healy's property was a little bit of brush and a Sumac tree that Ms. Antaki characterized as a weed.
The Antakis sought to clear debris and overgrowth from their area of the property adjoining Healy's property. Mr. Antaki admitted going onto Healy's property to clear some of the overgrowth, but he denied cutting any shrubs or trees on Healy's property. He also admitted that three small lilac bushes were planted on Healy's side of the line. He offered to remove them when Healy notified him of this encroachment. He denied widening his driveway or that it encroached on Healy's property. Hutton testified that Healy was very pleased for the work the Antakis had done.
The judge dismissed the complaint, finding the Antakis' version more credible, specifically, that no trees or shrubs, except the Sumac tree, had been removed from Healy's property. The judge found that Mr. Antaki had trespassed on Healy's property, but that no damages resulted.
Healy moved for reconsideration. The judge denied the motion.
Healy appeals from the denial of her motion to reconsider the trial decision. She contends that "adverse possession law does exist" and "it was initiated by defendant who should be liable for damages;" there was no accountability for trespassing and property damage; and "buffer and privacy are not worthless."
Essentially, Healy is challenging the facts as found by the judge. However, credibility is always for the factfinder to determine. Ferdinand v. Agric. Ins. Co. of Watertown, N.Y., 22 N.J. 482, 491, 494 (1956). And "a case may present credibility issues requiring resolution by a trier of fact even though a party's allegations are uncontradicted." D'Amato by McPherson v. D'Amato, 305 N.J. Super. 109, 115 (App. Div. 1997), quoted in CPC Int'l, Inc. v. Hartford Accident and Indem. Co., 316 N.J. Super. 351, 375 (App. Div. 1998), certif. denied, 158 N.J. 73-74 (1999). When error in a judge's factfinding is alleged, the scope of appellate review is limited. State v. Locurto, 157 N.J. 463, 470 (1999). We will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. Id. at 471 (quoting State v. Johnson, 42 N.J. 146, 162 (1964). We must give "due regard" to the ability of the factfinder to judge credibility. Locurto, supra, 157 N.J. at 474.
Here, we conclude from a careful reading of the record that the judgment of the trial court is based on findings of fact, which are adequately supported by the evidence. R. 2:11-3(e)(1)(A); Rova Farms Resort, Inc. v. Investors Ins. Co. of America, 65 N.J. 474, 484 (1974).
We agree with Healy that the concept of adverse possession does exist in the law. However, we fail to see its application here. The minor encroachment by the three lilac bushes, assuming that it exists for the statutory period of thirty years*fn1 without protest,*fn2 could constitute adverse possession. However, a simple protest is sufficient to defeat such claim. ...