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Presidential Hills, LLC v. Township of Hopewell


June 18, 2010


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2907-05.

Per curiam.


Submitted May 19, 2010

Before Judges Sabatino and Kestin.

Plaintiffs and third-party defendant, a related partnership, appeal from an order granting Hopewell Township's post-judgment motion to enforce litigant's rights. The matter arose from an action in lieu of prerogative writs, Rule 4:69, in which the Township had prevailed. After considering the motion, returnable January 23, 2009, on the papers, Judge Feinberg articulated the reasons for the order in an oral opinion rendered on January 30, 2009. We affirm.

In addition to the substantive provisions of the order, Judge Feinberg memorialized her denial of plaintiffs' motion for an indefinite adjournment of the motion, made on the basis that the corporate principal, plaintiff Merrick Wilson, was abroad. That denial was "based upon the history of this case" and the absence of any indication in the letter whether or when Wilson planned to return. We summarize the factual background with the benefit of the record on appeal and the case history Judge Feinberg provided in her oral opinion.

The matter focuses on a construction/sales trailer formerly on the site of plaintiffs' subdivision, placed there as a "temporary" structure in 1996. According to Judge Feinberg, "[t]he facts of this matter date back almost twenty years[,]" from July 1989, when plaintiffs "appeared before the planning board to apply for a preliminary major subdivision approval."

The trailer was located on the property following final approval in May 1994. Via a series of agreements, the plaintiffs and the Township established that the trailer would be removed "no later than" June 30, 2001.

In July 2002, more than a year beyond the agreed-upon removal date, the Township sent plaintiffs a notice requiring removal of the trailer. The trailer was not removed. Some three years later, the Township served another notice of violation and order to terminate. Once again, there was no compliance. Plaintiffs, instead, filed a challenge to the order. Following a hearing, the Mercer County Construction Board of Appeals affirmed the order and instructed plaintiffs to remove the trailer by October 10, 2005. Plaintiffs sought review of that determination via their complaint in the underlying action in lieu of prerogative writs. The Law Division, after due consideration, for reasons articulated in a written opinion, dismissed that complaint. In a subsequent order entered on April 7, 2006, the court directed removal of the trailer by April 21, 2006.

On April 21, 2006, Wilson filed a bankruptcy petition, claiming the trailer as the sole asset of Roblyn Development Corporation. The automatic stay associated with bankruptcy matters applied. During the ensuing time period, the Township relocated the trailer to the site of its Public Works Building, where it was when the instant proceedings occurred. Eventually, on May 9, 2006, the bankruptcy petition was dismissed, according to Judge Feinberg, for debtor's failure to file the necessary documents. That same day, Wilson requested he be permitted to remove the trailer from the Township's property. The Township replied by asking him to sign a hold harmless agreement before removing the trailer. Wilson never responded to this request.

Additional dealings between the parties followed. For example, in October and December 2007, the Township again requested removal of the trailer, and received no response. Further legal proceedings eventuated, resulting in the entry of certain judgments, and culminating in the instant motion seeking, inter alia, an order requiring plaintiffs to remove and relocate the trailer to a place outside the Township, and providing that, on plaintiffs' failure to act, the Township could dispose of the trailer in any appropriate manner with all costs and fees to be assessed against plaintiffs. It is from the grant of this motion that plaintiffs pursue the instant appeal, arguing that the trial court "committed an error of law and/or abuse of discretion" by denying the request for an adjournment and in granting the relief sought in the motion.

Our evaluation of plaintiffs' arguments, in light of the record in the matter, is that the issues raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A),(E). We affirm on the basis of Judge Feinberg's disposition and substantially for the reasons she provided.

We do not address the Township's argument that the appeal was untimely filed. In most instances, such an argument should be raised in an early motion filed soon after the service of the notice of appeal, not saved for presentation as a point in the brief on appeal. It is inappropriate, and an avoidable waste of resources and energy, to wait to raise such a ground for disposition until after the parties have expended the effort and cost of briefing and plenary presentation of the issues. Cf. Mango v. Pierce-Coombs, 370 N.J. Super. 239, 245 n.1 (App. Div. 2004); Miller v. Passaic Valley Water Comm'n, 259 N.J. Super. 1, 9 (App. Div.), certif. denied, 130 N.J. 601 (1992); McGowan v. Barry, 210 N.J. Super. 469, 472 n.2 (App. Div. 1986), certif. denied, 107 N.J. 123 (1987); Pressler, Current N.J. Court Rules, comment on R. 2:4-4(b) and comment 1.2.7 on R. 2:8-2 (2010).



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