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


January 18, 2013


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

Per curiam.


Argued October 11, 2012

Before Judges Fuentes and Ashrafi.

Defendants appeal from a May 31, 2011 order of the Chancery Division requiring once again that they remove encroachments from the property of plaintiff County of Bergen and also imposing a sanction of $1,575 upon defendants for failure to comply with prior orders. We affirm.

The dispute first arose in 2001 after defendant Iris Cooper-Shepard became the owner of property formerly owned by her deceased father. The County of Bergen determined that a fence and certain other outdoor structures encroached upon parkland the county owned. The County sent notice that the encroachments must be removed. Five years later, the encroachments remained in place. The county filed suit in the Chancery Division to compel their removal.

On June 19, 2007, the Chancery Division granted summary judgment to the county, and defendants were ordered to remove the encroachments within six months. After numerous additional orders and four prior appeals, all decided in favor of the county, the encroachments were still not removed at the end of 2010. Several times during the litigation, the county had sought imposition of monetary sanctions against defendants for filing and pursuing frivolous pleadings. The court did not impose monetary sanctions until the order from which this appeal is taken.

In March 2011, the county moved to hold defendants in contempt and, again, to impose sanctions for their continuing failure to remove the encroachments. Defendants responded that they had begun the removal process, but they gave the court no indication during oral argument on April 29, 2011, of a date by which the encroachments would be removed. The court viewed defendants' excuses as more purposeful foot-dragging, demonstrating that they had no intent to honor the court's order and remove all the encroachments.

By its May 31, 2011 order and an accompanying statement of reasons, the Chancery Division directed defendants to pay $1,575 to the county, that amount calculated for 10.3 hours of legal services at the rate of $150 per hour, plus a filing fee of $30. The court also noted defendants' request for more time to complete the removal, granting until July 15, 2011. The county informs us in its appellate brief that the encroachments have finally been removed so that only the monetary sanction remains at issue on appeal.

We reject defendants' argument that the Chancery Division did not follow required procedures set forth in Rule 1:10-2(b) when the court held them in contempt and imposed a monetary penalty. The county's motion was considered and decided under Rule 1:10-3 as a motion in aid of litigant's rights. That rule expressly authorizes the court to require a party that has violated a prior order to pay reasonable attorney's fees of the aggrieved party.

Here, the $1,575 sanction is very reasonable. Not only is it justified by the lengthy record of defendants' failure to comply with prior orders, it is supported by appropriate documentation of the legal services provided by the county's attorney. We do not find sufficient merit in any of defendants' lengthy arguments on this latest appeal to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).



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