On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-472-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Parrillo and Lihotz.
The parties are tenants in two adjacent buildings, located on contiguous lots, on the southern side of Route 37 in Toms River, which form a single shopping center with a common parking lot. The dispute centers on a large pylon sign (sign) positioned at the entrance of the shopping center on the lot rented by plaintiff but used by defendants to advertise their respective businesses. Plaintiff Raven Associates - Toms River (Raven) filed a complaint seeking sole possession of the sign as part of its leasehold, ejectment of defendants, and payment of damages for trespass.
On cross-motions for summary judgment, the Law Division entered a September 7, 2007 order denying plaintiff's motion and granting summary judgment to defendants Holualoa Toms River, LLC (Holualoa), Toms River Fitness for Women (Fitness for Women), McIntyre's Pub (McIntyre's), Spirits Unlimited (Spirits) and West Marine Products, Inc. (West Marine).*fn1 The court concluded defendants held a leasehold interest in the sign, even though it was physically located on the adjacent tract of land rented by plaintiff. Plaintiff appeals from that determination. On behalf of all defendants, Holualoa cross-appealed from the same order challenging the court's failure to make findings and conclusions regarding defendants' easement claims. We affirm.
These facts are taken from the motion record. Plaintiff is a lessee of a ten-acre tract, designated as Block 647, Lot 26.01 on the Dover Township Tax Map, commonly known as 207 Route 37 East (Parcel I). Plaintiff's building, erected on Parcel I, houses a Kmart retail store; the land, however, is owned by DHG, LLC (DHG), which is not a party to this matter.
Holualoa owns an adjoining seven-acre tract, designated as Block 647, Lot 26.02, on the Dover Township Tax Map, commonly known as 213 Route 37 East (Parcel II). The structure on Parcel II has been divided into smaller retail stores leased to defendants Fitness for Women, McIntyre's, Spirits and West Marine.
As noted, the sign is a free standing structure located near the Route 37 entrance of the shopping center on Parcel I. The sign was constructed over thirty years ago when the shopping center was developed. It displays marquees for Kmart, Fitness for Women, McIntyre's, Spirits and West Marine. It is illuminated and has separate electric meters so that each tenant pays its pro rata share of the lighting costs.
To better understand the controversy, historical context of the creation and terms of the respective leaseholds is necessary. In the early '70s, Parcels I and II were a single tract owned by Walter Reade, who leased the property to Goodriver Associates (Goodriver). On November 2, 1972, Goodriver leased the entire seventeen-acre tract to S.S. Kresge to operate a Kmart retail store and garden shop (Kmart lease), which Goodriver was to construct. Additionally, it was anticipated that a grocery store would open concurrently with the Kmart in the adjacent building. A rider to the Kmart lease provided:
Tenant may erect a pylon sign, to which Tenant may affix, light and maintain its Kmart identification sign, at Tenant's sole cost and expense. It is understood and agreed that said pylon sign may contain thereon the names or identification signs of the food supermarket occupying the building area [.]
A document labeled "Declaration of Easement" and described as a "memorandum of lease," (memorandum) was executed between Goodriver and Kresge on November 2, 1972. When construction was completed, the document was recorded in the Office of the Ocean County Clerk on October 25, 1974. The memorandum stated:
Landlord [Goodriver] may erect a shopping center pylon sign bearing the name of the shopping center, to which Tenant may affix, light and maintain its Kmart identification sign, at Tenant's sole cost and expense. It is understood and agreed that said shopping center pylon sign may contain thereon the names or identification signs of other tenants of the shopping center.
On December 12, 1973, Goodriver assigned its interest in the Kmart lease to its general partner, Goodrich Realty Group of New Jersey (Goodrich). That same day, the property was sold by Walter Reade's estate to Goodrich. Goodrich informally divided the property into Parcel I and Parcel II. Thereafter, Goodrich amended the ...