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Barbara J. Hertz v. Michael Nowacki


July 26, 2012


On appeal from Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-55-99.

Per curiam.


Argued December 12, 2011

Before Judges Grall, Alvarez and Skillman.

In April and August 2004, Judge MacKenzie entered orders declaring plaintiff Barbara J. Hertz's rights in an access easement that crosses separate properties then owned by Michael and Ruth Nowacki, John and Caroline McLoughlin and Kenneth and Lynne Travers. On a prior appeal challenging the final orders, we affirmed Judge MacKenzie's dismissal of plaintiff's claims against defendant Borough of Lincoln Park based on an allegation that a portion of the easement was a public road and rejected her challenges to the width and use of the easement as authorized by the judge. Hertz v. Nowacki, No. A-2305-04 (App. Div. Oct. 30, 2006) (slip op. at 1-2), certif. denied, 189 N.J. 650 (2007).

In April 2010, plaintiff filed a post-judgment motion in the initial action to enforce the orders against various parties: two of the individual defendants in the initial action; the successors in interest of the McLoughlin defendants, Seigfried Feury and Laura Oliverio; and Lincoln Park. This is plaintiff's appeal from orders entered by another judge denying her motion to enforce and her subsequent motion for reconsideration. We affirm in part and reverse in part. In our prior opinion, we described plaintiff's route of access to the fifteen-acre lot she owns and uses for agriculture as follows: "The dirt path leading to plaintiff's lot is an extension of a roadway that defendant Borough of Lincoln Park paved around 1958 and has maintained since that time. Both the paved roadway and the dirt path are referred to as Orchard Drive." Id. at 2. In the initial action she sought "a declaration that the dirt path is a public road and an order compelling Lincoln Park to grade, gravel, upgrade, maintain and properly improve the portion of Orchard Drive leading up to her premises to 'a condition equal to the existing improved portion of Orchard Drive.' In the alternative, plaintiff sought a declaration that she has a private easement over the individual defendants' lots along the route of the dirt path." Ibid. Following discovery, Judge MacKenzie granted Lincoln Park summary judgment on the ground that plaintiff "had not established that the dirt path had ever been used as a public road or that Lincoln Park had accepted a dedication of the path as a public road." Id. at 3. On that ground, the judge dismissed the municipality from the action. Ibid.

Subsequently, on cross-motions for summary judgment filed by the individual defendants and plaintiff, Judge MacKenzie entered orders defining plaintiff's rights.

On April 30, 2004, the judge ordered:

Plaintiff Barbara Hertz has the right to use the right of way now known as Orchard Drive for ingress and egress to her property consistent with modern uses. Further, Barbara Hertz will be responsible for any maintenance and improvements necessary in order to meet the minimum standards as set forth within the Borough of Lincoln Park's ordinance[s] concerning driveways.

On August 16, 2004, Judge MacKenzie supplemented and modified his prior articulation of the parties' respective rights and responsibilities:

1. The implied easement granted to Plaintiff for access to her property shall include the right to traverse over the full extent of the existing paved portion of the private road, which extends beyond Orchard Drive.

2. The implied easement granted to the Plaintff shall also include the use of the unpaved portion of the unimproved path, which extends past the paved portion over the properties of McLoughlin and Travers.

3. The [c]court holds that Plaintiff may improve a 14-foot-driveway within the heretofore unpaved route respecting constraints of "mature" trees and property improvements and located with the centerline as close to the Defendants' common boundary lines.

4. In accordance with the [c]court's prior ruling and the modifications made herein, Plaintiff is entitled to improve the dirt path to the condition of a 14-foot-driveway capable of accommodating a modern motor vehicle including an emergency vehicle.

5. Plaintiff shall be allowed to apply for driveway construction permits and shall be responsible for any and all costs associated with any such permits or improvement of the area at issue.

6. Plaintiff shall be responsible for providing to Defendants a survey and staking of the area to be improved.

7. Plaintiff shall provide Defendants with no less that twenty (20) days advanced notice, in writing, of her intentions to commence work to improve the dirt path together with a copy of the survey as contemplated in Paragraph (6) above and a copy of applications and any other supporting plans or documents.

8. The [c]court further reiterates that consistent with its prior ruling the Plaintiff has failed to demonstrate that the existing private road and dirt path constitute a public road. Plaintiff shall be subject to sanctions if this issue is brought before the [c]court again.

There is no dispute that plaintiff, at the time she filed the post-judgment motion in April 2010, had not obtained the survey required by paragraph 6.

In her notice of motion, plaintiff requested the relief specified in the proposed form of Order for compensation and relief due to Defendants Michael Nowacki, Sr.; Kenneth & Lynne Travers (H/W); Siegfried Feury & Laura Oliverio (co-owners) interference with Plaintiff's established rights to unrestricted use of the paved roadway and unpaved continuation, beyond the pavement leading to the Plaintiff's farm property, and against the Borough of Lincoln Park to enjoin the Borough from attempting to enforce non-existent violations against the Plaintiff's established rights to use the paved private roadway and unpaved continuation beyond the pavement leading to the Plaintiff's farm property, including the route along the southern boundary of property owned by Lincoln Park, seeking removal of felled trees and an abandoned vehicle obstructing the Plaintiff from accessing her east field.

Plaintiff has now provided at the court's request, through the clerk of the court, the proposed order setting forth the relief she sought, but the question whether the court erred in dismissing her motion to enforce in its entirety depends on whether plaintiff's moving papers established a prima facie case of a violation of the orders she sought to enforce, requiring a hearing to resolve any disputed facts, or an order in her favor in the absence of a factual dispute. See Hand v. Hand, 391 N.J. Super. 102, 106 (App. Div. 2007) (noting that, where the need for a plenary hearing is not apparent, the threshold issue is whether the movant has made a prima facie showing that it is); see also Loigman v. Twp. Comm. of Twp. of Middletown, 308 N.J. Super. 500, 503-04 (App. Div. 1998) (reversing a trial court's denial of an enforcement motion because a hearing was required to address the alleged violations of a prior judgment and response, if any, to those allegations).

In support of her motion, plaintiff submitted a sworn affidavit that includes 48 numbered paragraphs. The first 6 provide background information on the prior litigation and assertions about how her easement had been blocked over the years. Her allegations of grievances suffered since entry of the order are set forth in the remaining paragraphs. Since a number of the paragraphs contain allegations regarding multiple individuals and forms of conduct, some paragraphs are referenced more than once in the discussion below. Plaintiff's allegations are as follows:

7. Since the Chancery Court determined my rights, the paved roadway over Orchard Drive is where my car has been repeatedly vandalized.

8. My own mailbox on the neighborhood "mailbox stand" has been repeatedly vandalized, torn off and crushed, and the neighbor (defendants) have placed multiple mailboxes, not leaving me a mailbox space.

9. The Chancery Court directed that I may construct a fourteen (14) foot wide driveway, however, Lincoln Park immediately adopted a Driveway Ordinance creating conditions impossible for me to meet.

10. Although there is no public road and contrary to the Declaratory Judgment, Lincoln Park Police have repeatedly issued false parking and moving violations, which have required my defensive appearances and multiple court appeals.

11. Kenneth Travers had installed boulders, dug a trench, [installed] a fence on the boundary line, midline of the concrete slab foundation that should have served for my parking: this fence should be removed to allow me a safe parking space (within the seven feet on each side of the boundary lines) as my defined "easement."

12. The location where I should be permitted to improve the route with a driveway, "close to the boundary lines," presents formidable obstacles - including the sheer drop from the back of the concrete slab and additional topographic limitations.

13. The fourteen (14) foot wide easement is also insufficient width for a modern emergency vehicle to pass a car, as the Court defined its width.

14. A driveway is also insufficient to permit subdivision of my 15.5 acre farm property and may be insufficient even for one replacement house.

15. Seigfried Feury and Laura Oliverio purchased the property of former defendant McLoughlin, however they were on notice by their deed attachment, and also a joinder motion in the Appellate Division.

16. Seigfried Feury has threatened to blow me up and to blow up my car: thereafter, someone commenced to persistently and repeatedly vandalize my car when no such damage had been done before the threat.

17. Seigfried Feury filed complaints against me alleging I was trespassing, parking on his private property (road), littering on his property, etc.; these were all dismissed or reversed on appeal.

18. The defendants have engaged police presence and Lincoln Park Police and the zoning officer have also filed false and baseless complaints alleging obstruction of traffic, parking violations and littering, which were dismissed in municipal courts or vacated on appeals by Hon. Judge Dangler, J.S.C. and Hon. Judge Manahan, J.S.C.

19. After I had made a private arrangement with another neighbor (Laura Strippoli) to permit me to park on that private property driveway, Seigfried Feury interfered and threatened Mrs. Strippoli.

20. On April 19, 2008 at 4:17 pm Laura Strippoli, described what she perceived was a threat against her and her family for permitting to accommodate my safe parking.

LAURA STRIPPOLI: One of the neighbors (Seigfried Feury) knocked on our door and he said: "Do you know that Barbara Hertz is parked in your driveway?"

LAURA STRIPPOLI: And I said: "Ya." And he said: "And you're condoning it? You're letting her get away with it?"

LAURA STRIPPOLI: I said: "Ya, so." And he said: "Don't you understand what's going on, on this street?" Well I can explain to you." -

LAURA STRIPPOLI: Well I said: "Listen. I get along fine with Barbara. What's going on because I've been hearing it for fifteen of the twenty-five years I've been living here. And I really don't want to get involved with it. She asked if she could park and I said yes." And he said: "Well you're a party to it." Or whatever the hell he said.

BARBARA HERTZ: Oh, that was the guy Feury, down the street, the bald guy?

LAURA STRIPPOLI: Ya. The bald guy. Ya. Him.

21. On Saturday, June 21, 2008 [at] 8:30 a.m., Seigfried Feury telephoned Lincoln Park police complaining that I had brought buckets to my farm.

22. After completing my farm work, when I returned to the parked car (at the public road), at about 2 pm, I noticed the rear window was pulverized as well as the driver's side front window was smashed and the broken glass was on the seat.

23. On the same date that I had reported the improperly deposited air conditioner at Feury's, thereafter, both road-side car tires were slashed with a knife: my car was parked at the public road portion in front of Strippoli's house. Police Officer Simone arrived and put his own 2 inch knife into the tires to show they were cut with a similar knife.

24. On July 12, 2008 my car tires were vandalized after Kenneth Travers threatened he would "screw (me) over": two screws were driven into one tire (one inch apart); I observed Seigfried Feury by my car and photographed him walking away.

25. On July 17, 2008, Police were called on some complaint when I was harvesting my raspberries. Officers Clemens & Simone questioned me at my property; they refused to disclose what neighbor had called or the nature of the alleged complaint.

26. In August 2008, Lincoln Park Police Officer Mark Bosland issued a citation for my car parking on a public highway and not leaving 15 feet for an emergency vehicle to pass, where my car was on the end of the private roadway, not subject to Title 39.

27. Officer Mark Bosland issued a citation to me alleging a littering violation due to a rubbish bag placed at that location by Seigfried Feury. (Both complaints were dismissed on Appeal by Judge Dangler).

28. On Friday, August 15, 2008, as I was driving up Orchard Drive, I noticed improper (unauthorized) sign-posts placed in the easement. Michael Nowacki rushed to my car with threatening and menacing gestures and grimaces. I took a picture of him through the car window. When I opened the car door to take a picture of the signs, Nowacki grabbed the car door and attempted to break it off, and forcibly slammed it against me. His dog was off its leash.

29. Police Officers Bosland and Karback refused to remove the offending (unauthorized) signs.

30. A police citation was placed on my car windshield the following day, alleging parking on a public highway, when I was parked on the easement.

31. I hired a driver for many months to deliver and pick me up at my farm to avoid the continued onslaught by these neighbors and damage to my car.

32. When I commenced to park on the public road and walk the l/4 miles to my farm, incidents resumed.

33. On November 16, 2009, the air was let out of both roadside tires, the "valve- cap" had been removed and the car had been "keyed."

34. On November 17, 2009, as I was leaving my farm on foot, Seigfried Feury drove his car past me on Orchard Drive.

35. When I reached the top of the hill, I observed Seigfried Feury's car door was closing, where he had stopped along-side my car. The tire valve cap was again removed and the air had again been let out of the tire.

36. On November 29, 2009 there were several incidents: At 8:30 a.m., as I was walking down Orchard Drive, Michael Nowacki was approaching me from his house.

He said: "Why don't you grab this?" as he was grasping his genital area. I did not respond.

37. After having made a delivery to my farm, at 9:15 a.m. I was clearing leaves that Kenneth Travers and/or Seigfried Feury had dumped on the passageway, Kenneth Travers approached to within two feet of me, swinging his fist menacingly close to my face:

Kenneth Travers said: "Get off of my property you shit!"

I shouted: "What are you going to do with your fist? You are violating the court's order."

38. At 9:20 a.m. my driver arrived and drove me up the road to get my electric fence charger from my car. She drove me back and I carried the charger to my fence to install it.

39. After installing the charger, when I returned, Officer Mark Bosland had his police car parked on Travers' driveway and he approached, saying that he wanted to talk with me. I advised him that Carol needed to get to Church and I would be right back, which I did.

40. Officer Mark Bosland had filed a parking complaint against me that was heard at Parsippany Court - I was found not guilty and the complaint was dismissed.

41. When I was walking down the road to my farm later that day, Michael Nowacki was again waiting on the road.

42. Michael Nowacki was gesturing loops around his head saying "coo coo." I said "you certainly are."

43. During the week of December 6 through December 10, 2009, the passageway was vandalized by every dead tree limb that I had been removing from the walking route, creating a safety hazard for me.

44. In February I engaged a helper who assisted me for several hours, dragging the dead wood off the passageway.

45. After the trees had been again returned to block the passageway, on March 19, 2010, I hired a woodland manager to cut the dead trees with a chain saw.

46. Lynne Travers promptly reported to police that there was damage to her property: neither the passageway nor the gulley where dead trees had been, were on the Travers' property, nor were they being placed on her property.

47. On March 19, 2010, three police cars and Officer Mark Bosland directed that the removal of dead trees from my passageway is "littering" on citations SC-002204 and alleging violation due to a black plastic

bag under a stack of dead trees.

48. These incidents are demonstrative of the offending neighbors and police violations of the Chancery Court Orders and failure of Lincoln Park police and government to protect my rights to freely use the only access to my farm property.

We have reviewed these allegations to discern whether all or some of plaintiff's assertions are sufficient to require a hearing. That review leads us to conclude that a portion of the alleged violations asserted in paragraphs 28, 36, 37, 41 and 42 are sufficient to require further proceedings. The remainder are either inadequate to establish a prima facie violation of the order or assert violations by defendants who were not parties to the initial action.

Judge MacKenzie's orders define the respective rights and obligations of plaintiff and the owners of the property over which the easement runs. The owner of the land on which an easement lies "may not, without the consent of the easement holder, unreasonably interfere with the latter's rights . . . ." Tide-Water Pipe Co. v. Blair Holding Co., 42 N.J. 591, 604 (1964). While plaintiff may enforce the rights she acquired in the easement through Judge MacKenzie's orders against subsequent owners in a separate action, she cannot vindicate those rights against persons who were not parties to the orders by way of a motion to enforce litigant's rights. A motion to enforce litigant's rights pursuant to Rule 1:10-3 is tried in the cause of action that led to the order and only available to address a violation by a party to that action. See generally State v. Roberts, 212 N.J. Super. 476, 485 (App. Div. 1986) (distinguishing civil and criminal contempt prosecutions and relying on a passage from Gompers v. Buck's Stove & Range Co., 221 U.S. 418, 444-45, 31 S. Ct. 492, 499, 55 L. Ed. 797, 807 (1911)). In this case, Seigfried Feury and Laura Oliverio were not parties to the initial action and Lincoln Park was dismissed from the action before the order was entered.

Because Lincoln Park, Feury and Oliverio were not parties and thus not bound by the orders, the violations by Lincoln Park and its agents alleged in paragraphs 9-10, 18, 25-27, 29-30, 34- 35, 39-40, and 47-48, and those against Feury or Oliverio alleged in paragraphs 15-21, 23, 24 and 37 were all properly dismissed.*fn1

Other allegations were properly dismissed because they did not assert a violation of the orders or a violation by any identifiable person. They include paragraphs 7, 8, 12-14, 22- 24, 31-33, 38, 41, 43-46, 48.

The violation alleged in paragraph 11 was also properly dismissed but requires separate discussion. Plaintiff's assertion that defendant Kenneth Travers "had installed boulders, dug a trench [and installed] a fence" in an area within the easement where she should have been able to park is deficient in two respects. First, it is not clear whether these installations were done after the entry of the order. Second, without the survey that plaintiff was required but failed to obtain, she cannot establish that these structures are in an area that interferes with the easement as it would be depicted on a survey comporting with paragraphs 3-6 of Judge MacKenzie's August 16, 2004 order.

There are, however, paragraphs alleging violations that were improperly dismissed because plaintiff included information within her personal knowledge that, if believed, would be sufficient to establish violations of the orders defining her rights. In those paragraphs, plaintiff reports harassing conduct by specified individuals who were defendants in the initial action that directly interfered with her use of the easement known as Orchard Drive. They are found in paragraphs 28, 36, 37, 41 and 42 collectively. On those allegations against defendants Kenneth Travers and Michael Nowacki, plaintiff is entitled to a hearing.

The orders dismissing the enforcement motion and denying reconsideration are affirmed in major part. The orders are reversed as to dismissal of the allegations against Travers or Nowacki in paragraphs 28, 36, 37, 41 and 42 and the motion is remanded for further proceedings on those claims. We do not retain jurisdiction.

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