August 2, 2012
HAWES REALTY, INC., AND HACO, INC., D/B/A BUNCHER'S HARDWARE, PLAINTIFFS-APPELLANTS/ CROSS-RESPONDENTS,
SEBASTIAN CUPO AND EVELYN CUPO, DEFENDANTS/THIRD-PARTY PLAINTIFFS-RESPONDENTS/ CROSS-APPELLANTS, AND 3 GIGIONI, INC., ANGELO (A/K/A MARIO) DELBECCHI AND MARIO DEMARCO, DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS,
PHYLLIS TIGER PAARDEKAMP AND JOHN HENRY TIGER, THIRD-PARTY DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-1084-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 17, 2012
Before Judges Payne, Simonelli and Hayden.
Plaintiffs, Hawes Realty, Inc. and Haco, Inc., owners of Buncher's Hardware, located at 320 Millburn Avenue in Millburn, filed suit against Sebastian and Evelyn Cupo, the owners of 322-24 Millburn Avenue, and 3 Gigioni, Inc. and its principals, Angelo Delbecchi and Mario DeMarco (collectively, 3 Gigioni), the owners of Basilico Restaurant, operated at 324 Millburn Avenue since 1999, asserting claims of trespass and nuisance and claiming a right to a prescriptive easement. At the conclusion of discovery, defendants and third-party defendants, Phyllis Tiger Paardekamp and John Henry Tiger, the former owners of 322-24 Millburn Avenue, moved for summary judgment. Following an initial argument, the motion judge dismissed plaintiffs' easement and nuisance claims in an order dated February 9, 2011. After further argument, the judge dismissed the trespass claim in an order dated February 22, 2011. Additionally, in a February 23, 2011 order, the judge ruled that a motion to bar the testimony of plaintiffs' expert, Dennis M. Stainken, Ph.D., was moot in light of the orders of summary judgment. Plaintiffs appeal those orders. Defendants Sebastian and Evelyn Cupo and 3 Gigioni cross-appeal from the denial of their motion for attorney's fees pursuant to the frivolous litigation rule, Rule 1:4-8. We affirm the judge's orders.
A history of the properties is necessary for an understanding of these disputes by plaintiffs with their commercial neighbors. The facts will be set forth as they relate to each of plaintiffs' causes of action.
A. The Alleged Easement: In 1920, Buncher's Hardware was established by a family of that name and operated by them until 1981, when Irwin Buncher sold the business to Ray Cabrera, who in turn sold it in 1983 to Haco Industries, Inc., a company owned by Frank Hawes and his wife. In 1993, Hawes Realty, a company in which Frank Hawes is the majority owner, purchased the Buncher property.
In 1921, Harvey J. Tiger, the owner of the adjoining property at 322-24 Millburn Avenue, also opened a hardware store called Tiger's Hardware at 324 Millburn Avenue. The building located at 322 Millburn Avenue was initially occupied by an A&P grocery store, and later by a beauty parlor called Mixed Company. In the late 1980s, the Tigers sold their hardware business to Martie Cohen, who became a tenant at the 324 Millburn Avenue location. The property was sold in 1997 to the Cupos.
Before the ownership change at both family businesses, the Bunchers and the Tigers had a cooperative relationship. The Tigers allowed their neighbors to use their driveway for store deliveries, garbage pick-up and customer traffic. However, there was never a formal agreement between the Bunchers and the Tigers establishing an easement. When Frank Hawes bought the Buncher's hardware business in 1983, he told John Tiger, in the presence of Irwin Buncher, that he would only buy Buncher's if the easement in the back of Tiger's would stay open, and Tiger told him he "didn't have to worry about it." Nonetheless, at least once a year, on a holiday, the Tigers would barricade the passage between their property and that of the Bunchers out of concern that they would otherwise "lose ownership of the property."
Fred Buro, who owned the hair salon business at 322 Millburn Avenue since 1966, also owned a business called Summer Fun Pool Service, which he operated first from the beauty salon and later from Tiger's Hardware. In the late 1980s, the relationship between Summer Fun and Buncher's turned sour. Summer Fun allegedly "started accusing [Buncher's] of stealing their equipment." In 1996, Summer Fun put up a chain link fence at Buncher's property line in the back to prevent vehicle traffic reaching Buncher's by way of the Tigers' property. Phyllis Tiger Paardekamp testified at her deposition that, starting around 1985, access by car to Buncher's had become difficult because of the number of cars parked at the back of the Tigers' property. However, Jack Hawes testified that the obstruction existed only on Saturdays.
The Cupos bought 322-24 Millburn Avenue in 1997, one year after the chain-link fence had been erected. At that time, Jack Hawes spoke to the Cupos about taking down the chain link fence, and Sebastian Cupo responded: "we'll talk about it." Following their purchase of the property, the Cupos planned to renovate the second-floor apartments and to construct a restaurant at 324 Millburn Avenue where Tiger's Hardware had been. In February and March 1998, after township hearings on requested variances, Lawrence Levitt, the Hawes' attorney, raised the issue of the passage behind the buildings with the Cupos' attorney and with Millburn's construction official. The Cupos' attorney indicated that the Cupos would consider executing cross-licenses, but would not consider an easement; the construction official stated: "We'll work it out." However, no written or definitive verbal agreement was ever reached.
During construction, which commenced in 1998, the relationship between the Cupos and the Hawes became adversarial and, as this litigation demonstrates, that relationship has not improved. In 2003, with municipal approval, the Cupos erected an eight-foot high wooden fence in place of the four-foot chain link fence that had been erected previously. Jack Hawes and the Hawes' attorney were present at the hearing at which the fence erection application was approved, but neither objected then, and the Hawes did not file an appeal. At that point, Jack Hawes admitted that it became clear to him that an easement was not going to be granted.
B. The Trespass Claim: Following their purchase of 322-24 Millburn Avenue in 1997, the Cupos hired various companies to convert the second-floor apartment at 324 Millburn Avenue into three studio apartments, to renovate the building's plumbing, heating, electrical, and cooling systems, demolish a garage, and install pavement in the back. All necessary municipal permits were obtained. Additionally, the Cupos joined with 3 Gigioni to establish a restaurant in the space formerly occupied by Tiger's Hardware at 324 Millburn Avenue. The restaurant, called Basilico, opened in about June 1999. In January 2001, 3 Gigioni contracted for the renovation of the restaurant's basement and bathroom. Again, all necessary municipal approvals were obtained. Finally, in May 2003, 3 Gigioni erected a pergola for outdoor dining in the back of the property.
Plaintiffs claim that the defendants' various projects, starting in 1998, caused dust and dirt to fly onto plaintiffs' property. In 1998, Frank Hawes collected samples of the soil on his property, which he stored in three plastic bags, kept behind a filing cabinet. Finally, in 2003, he had the samples tested by EMSL Analytical, Inc. One test disclosed the presence of asbestos.
In 1999, the area in which the properties at issue are located was severely flooded as the result of Hurricane Floyd. In 2007, the Hawes undertook, with township approval, renovations to their own building, including the addition of another apartment to the second floor.
In August and September 2009, plaintiffs' environmental expert, Dr. Stainken, collected multiple samples from plaintiffs' property for analysis by EMSL Analytical. One of the samples collected in August was found to contain less than one percent chrysotile asbestos. None of the ten samples collected in September was found to contain asbestos.
In a report written in December 2010, Dr. Stainken opined that the asbestos found in the back of plaintiffs' property originated from 224 Millburn Avenue and was deposited on plaintiffs' property during the 1998 renovation project. Additionally, Dr. Stainken recognized the flooding caused by the September 1999 hurricane, and he stated that "[t]he flood would have altered the distribution of deposited fibers. Such a flood would have been expected to re-suspend/distribute deposited materials over the area."
The Cupos, in turn, hired EnviroVision Consultants, Inc. to conduct a visual inspection, photo documentation and soil sampling at 320 Millburn Avenue. In a September 22, 2009 report, that organization stated that its sampling had not revealed the presence of asbestos-containing material. However, it noted that "the designated area of concern was obstructed with construction equipment and materials, scaffolding, wood, shelves etc."
C. The Nuisance Claims: In the fourth count of their third-amended complaint, plaintiffs seek damages on a theory of nuisance allegedly arising from (1) improperly removing debris containing hazardous substances; (2) failing to construct a retaining wall between the properties; (3) expelling water through a hose onto plaintiffs' property; (4) maintaining an improper roof on the pergola; (5) permitting certain parking spaces to be used for non-parking purposes; (6) reserving spaces in an adjoining municipal lot for Basilico's customers; (7) parking across the sidewalk in front of their property; (8) placing seats and tables on the public sidewalk; (9) permitting excessive noise and crowding at Basilico after 9:00 p.m.; (10) failing to accommodate large party patron parking; (11) maintaining improper heating in outside dining areas; and (12) failing to maintain two seasonal parking spaces in the outside dining area.
Prior to and at oral argument, plaintiffs withdrew all allegations of nuisance except their claim that a hose from the hair salon improperly discharged on their property. At argument, counsel for the Cupos stated that the hose had been moved. In his order, the judge required that, if it had not been re-directed, that should be done within ten days.
On appeal, plaintiffs again assert their claims regarding the hose, and they additionally argue that the roof of the pergola intensified water runoff onto their property. However, we note that, at oral argument in the trial court, plaintiffs' counsel acknowledged that "the roof has been remedied."
As stated previously, the judge granted defendants' and third-party defendants' motions for summary judgment and declared a motion by 3 Gigioni to bar plaintiffs' expert's report to be moot. Addressing plaintiffs' easement claim, the judge found that plaintiffs had failed to establish the continuous use required to prove an easement by prescription; that they waived their rights to an easement when the fence was installed; and they failed to address their rights in subsequent permit applications. The judge dismissed the remaining nuisance claim, alleging the discharge of water onto plaintiffs' property from a hose, but directed that if a hose were still directed onto plaintiffs' property, it should be removed within ten days. The judge also dismissed plaintiffs' trespass claim on the grounds that plaintiffs could not establish that the asbestos found on their property had come from 322-24 Millburn Avenue, and that any such claim was barred by the statute of limitations. In a separate written opinion, the judge also denied defendants' motions for sanctions pursuant to Rule 1:4-8. These appeals followed.
On appeal, we employ the same standard as utilized by the trial court, viewing the evidence in a light most favorable to plaintiffs. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
On appeal, plaintiffs first address their claim of trespass, arguing that the judge erred in ruling that the claim was barred by the statute of limitations. "[A]ccepting, for purposes of argument" defendants' contention that there was no continuing violation, plaintiffs claim that, because the construction of the pergola occurred in 2003, their cause of action is not time barred. As a factual matter, they rely on deposition testimony by Frank Hawes that a mix of dust and dirt came onto plaintiffs' property during the nine months that it took to construct the pergola and upon the report of their expert, Dr. Stainken.
However, there is no evidence that the dust and dirt emanating from the 2003 construction contained asbestos. Further, there is no evidence that the speck of asbestos found on plaintiffs' property in 2009 came from 322-24 Millburn Avenue and that it was not brought there from another source in the floodwaters following Hurricane Floyd in 1999 or by other means, or for that matter, from plaintiffs' own construction in 2008, occurring in a building of an age and condition similar to that of the structures owned by the Cupos. As a result, we concur with the motion judge's conclusion that claims arising from alleged trespass occurring prior to February 5, 2002 are time barred, N.J.S.A. 2A:14-1, and that evidence of any more recent trespass of asbestos-containing materials from 322-24 Millburn Avenue is wholly speculative, given the other potential sources of such material, including plaintiffs' own property.
Plaintiffs next contend that the judge erred in granting summary judgment on their claim of a right to a prescriptive easement over the property owned by the Cupos, relying in that regard on testimony by Jack Hawes that he used the rear passage daily and on a claim that Phyllis Tiger Paardekamp "knew that the passage had been used for years."*fn1 However, Hawes admitted that he could no longer drive through the passageway after it was obstructed by a chain-link fence in 1996, although a small space remained for foot traffic. As previously stated, Paardekamp testified that the passage was obstructed by cars from approximately 1985 on.
We have held that:
In order to establish an easement by prescription, a litigant must prove elements similar to those associated with adverse possession. Thus, the proponent of an easement by prescription must prove an adverse use of land that is visible, open and notorious for at least thirty years.
The proponent of the easement must establish the elements by the preponderance of the evidence. [Yellen v. Kassin, 416 N.J. Super. 113, 119-120 (App. Div. 2010) (citations omitted).]
Here, plaintiffs are unable to establish that the use of the passage during the ownership of 320 Millburn Avenue by the Bunchers and by plaintiffs up to 1996 was "adverse," and "under a claim of right," rather that "indulgent and permissive in character." Id. at 120-21.
"'A use is adverse or hostile if a person uses the property of another under a claim of right, pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed.'" [Id. at 120 (quoting A.J. and O.J. Pilar, Inc. v. Lister Corp., 22 N.J. 75, 80 (1956) (quoting Predham v. Holfester, 32 N.J. Super. 419, 424 (App. Div. 1954)).]
The record of this matter demonstrates none of the adversity required to establish a right to a prescriptive easement across 322-24 Millburn Avenue. In the period during which the Tigers owned the property, they permitted access to 320 Millburn Avenue through the rear of their property. However, the record demonstrates unequivocally that they took steps to preserve their ownership interest and to avoid any grounds for a claim that an easement had been established. No evidence suggests that either the Bunchers or the plaintiffs asserted a claim of right to utilize the passage. By the time that the Cupos purchased the property in 1997, a chain-link fence had been erected that barred vehicular traffic into the rear of Buncher's from 322-24 Millburn Avenue.
Thereafter, the record fails to establish any assertion of right by plaintiffs to an easement or any agreement by the Cupos to plaintiffs' use of the now-blocked passage. As a consequence, we concur with the motion judge's determination that no prescriptive easement was created.
We decline to address plaintiffs' argument regarding its one remaining claim of nuisance arising from the mis-direction of the hose at 322 Millburn Avenue, determining that the argument lacks sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Addressing the cross-appeal, we affirm the decision of the trial judge not to award sanctions for frivolous litigation pursuant to Rule 1:4-8 substantially on the basis of the judge's comprehensive written decision.
The orders from which the appeal and cross-appeals have been taken are affirmed.