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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...