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County of Bergen v. Iris Cooper-Shepard and Rod Shepard

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 23, 2011

COUNTY OF BERGEN, PLAINTIFF-RESPONDENT,
v.
IRIS COOPER-SHEPARD AND ROD SHEPARD, DEFENDANTS-APPELLANTS.

On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-233-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 18, 2011

Before Judges Fuentes, Nugent and Kestin.

This controversy has been before us on several prior occasions in appeals filed by defendants, Iris Cooper-Shepard and Rod Shepard. In each instance we have affirmed, essentially, the relief granted by the trial court to plaintiff, the County of Bergen, in respect of defendants' 1,220 square feet encroachment on County parkland with structures and improvements.

In an unreported opinion dated May 22, 2008, citing Rule 2:11-3(e)(1)(E), we affirmed, substantially for the reasons expressed in the trial court's opinion explaining its June 19, 2007 summary judgment orders rejecting defendants' adverse possession claim and requiring them to remove the encroaching structures within six months. We remanded, however, so the trial court could modify the judgment to include a metes and bounds description. Defendants filed a petition for certification, which the Supreme Court denied on October 28, 2008, in an order reported at 196 N.J. 600 (2008). We had stayed our decision pending the outcome of the petition for certification, providing that the stay would "be deemed resolved if the petition is dismissed, or if the certification is denied."

In the meantime, plaintiff filed a motion in the trial court seeking entry of an amended judgment pursuant to our direction. Defendants opposed the motion and filed a motion of their own, pursuant to Rule 4:50-1, seeking to vacate the judgment on the basis that the complaint had been untimely filed. The trial court granted plaintiff's motion and denied defendants' motion, subsequently entering an amended judgment with the mandated metes and bounds description and a provision requiring defendants to remove all encroachments within ninety days from the expiration our stay.

On defendants' appeal from the amended judgment, we, on March 22, 2010, in an unpublished opinion, affirmed, again on the basis of the "without sufficient merit" provision of Rule 2:11-3(e)(1)(E). Also, on March 22, 2010, in another unpublished opinion, we dismissed as untimely defendants' appeal from the trial court's September 15, 2008 denial of their June 2008 motion seeking to vacate the June 19, 2007 summary judgment orders on the ground that defendants had discovered new evidence tending to establish that plaintiff's complaint was time-barred.

On August 11, 2010, defendants moved, pursuant to Rule 4:50-1(f), for relief from the modified judgment. Plaintiff filed a cross-motion for counsel fees and other relief. On August 27, 2010, the trial court denied both motions. Defendants then moved for reconsideration and plaintiff cross-moved again for counsel fees and other relief. Both of those motions were denied as well, in an order entered on November 5, 2010, for reasons expressed on the record. Tracing the history of the case, Judge Contillo stated that all the issues had been fully considered and resolved, that defendants were seeking, again, to raise the same issues as had already been adjudicated and had been subject to extensive consideration on several levels on repeated occasions. He stated that although he regarded the motion as frivolous he refrained from awarding monetary relief in the form of counsel fees to plaintiff, but would order such relief in respect of any future frivolous application.

On this appeal, defendants raise a number of arguments that, on analysis, seek to relitigate questions previously raised and already determined both in the trial court and on appeal. During the course of this appeal, in an order entered on March 8, 2011, we denied defendants' motion for a stay. The Supreme Court, in an order entered on June 14, 2011, also denied defendants' motion for a stay.

We discern no merit in any of the arguments raised by defendants in this appeal sufficient to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We are in essential agreement with Judge Contillo's expressed reasons for entering the November 5, 2010 order.

Affirmed.

20110823

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