July 16, 2010
RAVEN ASSOCIATES-TOMS RIVER, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
HOLUALOA TOMS RIVER, LLC, DEFENDANT-RESPONDENT/CROSS-APPELLANT, AND FITNESS AQUATIC CENTER & FITNESS FOR WOMEN, MCINTYRE'S PUB, SPIRITS UNLIMITED, AND WEST MARINE, DEFENDANTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 2, 2010
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 Kmart lease to reflect the reduced size of the lease, from seventeen acres to ten acres.
On June 30, 1975, Goodrich sold Parcels I and II to a California limited partnership known as 21915 South Western Property (South Western), subject to the terms and conditions of the Kmart lease, its amendments and the memorandum. Later, effective, July 1, 1975, Goodrich assigned the Kmart lease to South Western and leased back Parcel II.
Goodrich sublet a portion of Parcel II's building to the Great Atlantic & Pacific Tea Company, Inc. (A&P). The A&P lease was for twenty years with five renewal options: the first for a term of ten years and the others for a term of five years. The lease was made subject to the terms of Goodrich's lease with South Western and also provided:
[A&P] may erect at its own cost and expense its logo on the pylon sign to be erected by others at the location depicted on the Plot Plan, provided the erection, maintenance and lighting of [A&P]'s logo is solely at [A&P]'s cost and expense . . . . In the event that the pylon sign is not erected by others, then [A&P] may erect its own free standing sign at the same location.
Other portions of the building were sublet to Dante Restaurant & Pizzeria, Morse Shoe, Inc., and Daniel D'Orofrio II.
Formal subdivision of the land was obtained and South Western sold Parcel II to Tomver Associates (Tomver) on July 25, 1977. Holualoa purchased Parcel II from Tomver on July 31, 2003. Thereafter, on March 6, 1979, South Western sold Parcel I to John Bruce Investment Trust (Bruce). Bruce leased the ten-acre parcel to plaintiff on July 2, 1979 (plaintiff's lease) and, on the same date, assigned the November 1, 1972 lease between Goodrich and Kresge "as amended, a memorandum of lease thereof having been recorded" to plaintiff. On May 15, 1996, Bruce sold Parcel I to DHG.
In 1986, A&P vacated the building on Parcel II. A&P's space was sublet to Big M, Inc. (Big M). Big M divided the building as various new tenants were located. On April 15, 1986, a portion of the space was sublet to West Marine's predecessor, E&B Marine Supply, Inc. (E&B), under a sublease agreement, which provided that Big M would "use its best efforts to obtain . . . permission to place [E&B]'s name on any pylon sign." Fitness for Women also sublet space under the terms of an agreement requiring that the tenant not install any sign on the demised premises without Big M's prior consent. As new tenants were added to the shopping center, their names were placed on the sign.
In September 1995, a dispute arose between plaintiff and Tomver regarding maintenance of the sign. Attempts to negotiate a resolution were unsuccessful. Disagreements continued following Holualoa's purchase of Parcel II. Plaintiff asserted it held an exclusive right to use the sign. Defendants challenge this contention and assert that they, as the successors-in-interest under the A&P lease, have a continued right of use. Plaintiff filed its complaint for ejectment and trespass on February 7, 2005.*fn2 After a proposed settlement was set aside, the parties filed their respective summary judgment motions immediately before trial.
The motion judge issued a March 6, 2007 letter opinion determining plaintiff's assertion of an exclusive right to use the sign was unfounded, and the sign's use was subject to the terms of the memorandum allowing A&P, the other tenant in the shopping center, to use the sign. Therefore, the current tenants, pursuant to subleases from the original A&P lease, were equally entitled to have their businesses advertised on the sign.
The trial court entered an order on March 6, 2009 denying plaintiff's motion for summary judgment. An April 2, 2007 order granted Holualoa's cross-motion and dismissed plaintiff's complaint. The court replaced the April 2, 2009 order with an order entered on June 7, 2007, R. 4:42-1, which restated that plaintiff's motion was denied and its complaint was dismissed, and that defendant's motion was granted. The amended order eliminated a provision in the prior order granting defendants an easement over plaintiff's property to utilize the sign and another characterizing the sign as "a common facility" located "in a common area." Instead, it stated plaintiff was not "to destroy or impede any of the [d]defendants' abilit[ies] to use the pylon sign, and [p]laintiff has an obligation to replace or rebuild said pylon sign in the event that the pylon sign is destroyed, by act of God or otherwise[,]" so long as the memorandum remained in effect.
Holualoa's motion for reconsideration was denied "to the extent [its motion sought] to establish an easement for the use of the sign in question." The trial judge restated his determination that "businesses located on  Holualoa's property obtained the right to use the sign through the successors of leases with the original A&P, which is dated August 25, 1975[.]"
A summary judgment motion must be granted if "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). See also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "The trial court cannot decide issues of fact but must decide whether there are any such issues of fact." Agurto v. Guhr, 381 N.J. Super. 519, 525 (App. Div. 2005) (citing R. 4:46-2(c)).
A determination of whether a genuine issue of material fact precluding summary judgment exists "requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540. In doing so, although the motion judge does not engage in the typical weighing of evidence as would a factfinder, he or she is required to analyze and sift through evidential materials and "determine the 'range of permissible conclusion that may be drawn'", id. at 531 (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 596, 106 S.Ct. 1348, 1361, 89 L.Ed. 2d 538, 558 (1986)), to determine whether a genuine issue of material fact exists. See Millison v. E.I. du Pont de Nemours & Co., 101 N.J. 161, 167 (1985) (requiring a motion judge to make a "discriminating search" of the evidence); see also Tomeo v. Thomas Whitesell Constr. Co., 176 N.J. 366, 370 (2003) (stating summary judgment necessitates some weighing of the evidence). Inevitably, the judge must consider not just the quantum of proof, but the quality of evidence as well. Schiavone Constr. Co. v. Time, Inc., 847 F.2d 1069, 1089 (3d Cir. 1988); Brill, supra, 142 N.J. at 534; Costello v. Ocean County Observer, 136 N.J. 594, 614 (1994).
Also, determining what is substantial requires an analytical process where the motion judge is "guided by the same evidentiary standard of proof . . . that would apply at the trial on the matters when deciding whether there exists a genuine issue of material fact." Brill, supra, 142 N.J. at 533-34 (citation omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55, 106 S.Ct. 2505, 2513, 91 L.Ed. 2d 202, 215-16 (1986).
Our review of a motion for summary judgment is guided by the same standard as used by a trial court. Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406 N.J. Super. 524, 538 (App. Div.), certif. denied, 200 N.J. 209 (2009) (quotations and citations omitted). In our de novo review, we first decide whether there was a genuine issue of material fact; if so, we then decide whether the lower court's ruling on the law was correct. Marrone v. Greer & Polman Constr., Inc., 405 N.J. Super. 288, 293 (App. Div. 2009) (citations omitted); Sealed Air Corp. v. Royal Indem. Co., 404 N.J. Super. 363, 374 (App. Div.) (citing Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998)), certif. denied, 196 N.J. 601 (2008). We "owe no deference to the trial court's interpretation of the law and the legal consequences that flow from established facts and, hence, [our] review of legal issues is de novo." Pressler, Current N.J. Court Rules, comment 3.1 on R. 2:10-2 (2010) (internal quotation omitted).
Plaintiff seeks reversal, arguing the court erred in deciding the matter without a trial, as the issues presented were fairly fact-sensitive and decidedly disputed, precluding summary judgment. In advancing its arguments, plaintiff suggests the "trial court's analysis of the documents . . . was faulty" and its conclusions were unsupported by legal analysis. Although we agree with this latter point, noting the trial court's opinion included limited discussion in support of its legal conclusions, see e.g., Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 300 (App. Div. 2009) (directing "neither the parties nor the appellate court is 'well-served by an opinion devoid of analysis or citation to even a single case'") (quoting Great Atl. & Pac. Tea Co. v. Checchio, 355 N.J. Super. 495, 498 (App. Div. 2000)), we need not disturb the judgment entered, for the reasons explained below. See Division of Youth & Family Servs. v. G.M., 198 N.J. 382, 387 (2009); Jamgochian v. N.J. State Parole Bd., 196 N.J. 222, 228 (2008).
Plaintiff generally argues the intentions of the parties and the scope of any agreements or undertakings were disputed material facts. However, it does not articulate the specific nature of the alleged dispute or demonstrate the conflict by the provision of divergent documents. Plaintiff submits no evidence supporting its exclusivity claims over the sign and does not state why the memorandum's provisions do not define the parties' rights. Plaintiff's overarching suggestion of factual disputes is insufficient to defeat the entry of summary judgment.
In opposing summary judgment, the non-moving party cannot merely identify any fact in dispute. Brill, supra, 142 N.J. 529. The Court has stressed that "where the party opposing summary judgment points only to disputed issues of fact that are 'of an insubstantial nature,' the proper disposition is summary judgment." Ibid. (quoting Judson v. Peoples Bank & Trust Co., 17 N.J. 67, 75 (1954)). This is particularly so, in light of the fact that plaintiff too requested summary judgment and agreed with defendants that neither would present testimony allowing the judge to "dispose of this case with . . . a written opinion[.]"
The Law Division's analysis concisely stated the facts agreed upon by the parties surrounding their dispute and correctly noted the controversy implicated basic contract interpretation principles and property rights. See Maglies v. Estate of Guy, 193 N.J. 108, 143 (2007) (Hoens, J. dissenting) (noting that "a lease is a contract and its terms are governed by contract principles"). These rights, allowing the tenants of Parcel II to identify their businesses on the sign, are expressly set forth in the documents presented. First, both parties rely on the Kmart lease as the controlling document. Second, plaintiff concedes it was assigned the lease, as amended by the memorandum, by the July 2, 1979 assignment agreement between plaintiff and Bruce (DHG's predecessor in interest), which references that Bruce "does grant, convey, assign, transfer and set over" to plaintiff the Kmart lease "as amended, a memorandum of lease thereof having been recorded[.]" Third, the memorandum, as cited, is the document recorded on October 25, 1974, which discusses that a sign would be erected by the landlord Goodriver in the common parking lot area of the shopping center. Further, the memorandum states "the shopping center pylon sign" would bear the name of the shopping center, to which Kmart's identification would be affixed and "may contain thereon the names or identification signs of other tenants of the shopping center."
Finally, the A&P lease provides that "[A&P] may erect at its own cost and expense its logo on the pylon sign to be erected by others at the location[.]" Holualoa, as the owner of Parcel II, in the chain of title from South Western and Tomver, obtained ownership subject to the A&P lease. We determine the language expressed by these agreements is clear and unambiguous and taken together, they grant a right to Holualoa's tenants to have their businesses included on the sign.
Courts enforce contracts as written and "will not rewrite contracts to favor a party, for the purpose of giving that party a better bargain." Lucier v. Williams, 366 N.J. Super. 485, 491 (App. Div. 2004) (citing Vasquez v. Glassboro Serv. Ass'n, 83 N.J. 86, 101 (1980); Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)). "Therefore, if the contract into which the parties have entered is clear, then it must be enforced . . . without regard to whether we would have made a different agreement had we been asked." Maglies, supra, 193 N.J. at 143. Following our review, we conclude defendants' rights with respect to the sign are unmistakable, making summary judgment appropriate.
We also reject plaintiff's suggestion that these terms depict a revocable license. Defendants' use of the sign is not based on a permissive use but from contractual provisions. See Mandia v. Applegate, 310 N.J. Super. 435, 444 (App. Div. 1998) (determining permissive use of plaintiffs' property resulted in a revocable license).
Holualoa's cross-appeal is limited to the argument that the court erred in failing to make findings and conclusions on whether an easement was created. Maintaining that the sign is part of the common facilities of the shopping center, resulting in an easement over Parcel I, Holualoa requests the matter be remanded to determine this claim.
Plaintiff challenges Holualoa's standing to present the easement claim, asserting "[w]here a party claims an easement, the owner of the adjoining land is a necessary party and where the owner has not been made a party, the claimant cannot obtain an adjudication of declaration of easement." The motion judge accepted this rationale and denied Holualoa's request, stating "my decision only affected the rights between the parties who are named plaintiffs or defendants. My opinion did not affect the property rights of the owners of the land upon which the sign is located."
"An easement is a 'non-possessory incorporeal interest in another's possessory estate in land, entitling the holder of the easement to make some use of the other's property.'" Mandia, supra, 310 N.J. Super. at 442-43 (quoting Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div. 1987)). By definition, the owner of the servient tenement must be a party to any action brought to define the nature and scope of a claimed easement. See Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473, 478 (App. Div. 1993).
Following our review, we have no basis to interfere with the motion judge's determination to decline adjudication of this issue. Holualoa failed to join DHG, even though it is an indispensable party in this matter. As the owner of the realty over which an easement was claimed, DHG would be affected by any determination of the existence and extent of defendants' alleged easement, making it an indispensable party.