July 11, 2013
J. PAUL SMITH, Plaintiff-Respondent,
HELEN B. KINLEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 12, 2013
On appeal from Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-48-10.
Robert J. Hensler, attorney for appellant.
Steven J. Richardson, attorney for respondent.
Before Judges Messano and Kennedy.
Defendant appeals from summary judgment entered in favor of plaintiff on March 14, 2012, declaring that an earlier judgment defendant had obtained establishing the metes and bounds of her property in Deptford Township to be "null and void in its entirety and of no effect against plaintiff[, ]" an adjoining landowner; and also declaring that plaintiff is entitled to the "quiet and peaceful possession" of his property, described by a metes and bounds description that, in effect, reduces the frontage of defendant's claimed property line along Wenonah Avenue by approximately ten feet. Defendant argues that "genuine issue[s] of material fact" existed which warranted denial of summary judgment. We agree and reverse the grant of summary judgment for plaintiff and remand for further proceedings consistent with this opinion.
In reviewing a grant of summary judgment, we apply the same standard as the motion judge. EMC Mortgage Corp. v. Chaudhri, 400
N.J.Super. 126, 136 (App. Div. 2008) (citing Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007)). We first determine whether the moving party has demonstrated there were no genuine disputes as to material facts. Alt. Mut. Ins. Co. v. Hillside Bottling Co., 387
N.J.Super. 224, 230, (App. Div.), certif. denied, 189 N.J. 104 (2006).
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.
[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).]
We then decide "whether the motion judge's application of the law was correct." Atl. Mut. Ins. Co., supra, 387
N.J.Super. at 231. In doing so, we owe no deference to the motion judge's conclusions on the issues of law, and review those de novo. Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995)).
What follows is a brief statement of facts, derived from the record and viewed in a light most favorable to defendant. In April 1985, defendant purchased from Deptford Township a piece of property designated as Block 561, Lot 13, on the municipal tax map. The deed contained no metes and bounds description, and merely recited that it was the same land obtained by the municipality "by final decree of foreclosure . . . recorded May 26, 1976 in Book 1202, page 1105 in the Gloucester County Clerk's Office." The tax map showed the property had 163 feet of frontage along Wenonah Avenue.
In 1985, preparatory to a possible development application, defendant commissioned a survey of her property. Believing that the owners of the adjacent property, designated as Block 561, Lot 14, on the Deptford Township tax map, had made improvements that encroached onto her property, defendant filed a quiet title action against the owners of the adjacent property, Earle and Dorothy Payton. After the Paytons defaulted, defendant obtained judgment in 1995 setting forth a metes and bounds description which confirmed her property line with 163 feet of frontage on Wenonah Avenue and declaring that the Paytons, "and all persons claiming under them, " have no "title, lien, or interest in . . any part" of defendant's property. The judgment also permanently enjoined the Paytons and their successors "from asserting any adverse claim to [defendant's] title . . . ."
Defendant concedes she never filed the 1995 judgment with the Gloucester County Clerk, although it was filed with the Clerk of the Superior Court in Trenton.
By deed dated June 29, 2007, plaintiff acquired the adjacent property from the Paytons. The deed described the property by its tax block and lot numbers, and referenced a prior lot and block number on a 1927 "Plan of J. Owen Carter." Plaintiff claimed he had no "actual or constructive notice" of the 1995 judgment prior to his acquisition of title, but conceded that he did examine the tax map prior thereto. Defendant, on the other hand, contended that prior to the conveyance of title to the adjoining property, plaintiff contacted her and stated he was interested in buying property in the area. Defendant stated she did not give him a copy of her deed, but did provide "several other documents at the time[, ]" including the 1995 judgment.
After the conveyance, plaintiff commissioned two surveys which showed that the frontage of his property on Wenonah Avenue was 153.08 feet. If the surveys were accurate, according to plaintiff, the frontage of defendant's property on Wenonah Avenue would not be 163 feet, but would be reduced to 153.08 feet. Plaintiff contended that the combined frontage of the two properties along Wenonah Avenue was 306.16 feet, and that prior deeds on his property showed a Wenonah Avenue frontage of 153.08 feet.
Plaintiff filed a quiet title action against defendant in which he sought, among other things, a declaration that the 1995 judgment was "null and of no effect" because it had not been recorded and he had no notice of it. Defendant hired counsel and answered the complaint, denying, among other allegations, plaintiff's claimed lack of notice. She also signed a certification dated March 15, 2011, stating that she had given plaintiff a copy of the 1995 judgment prior to his acquisition of the adjoining property.
Following discovery, plaintiff filed a motion for summary judgment, supported by a statement of material facts, exhibits, and a certification of Andrew C. Putnam, a professional land surveyor. Putnam opined on the basis of his own surveys and an examination of title that the metes and bounds description in the 1995 judgment was "incorrect" and that the actual Wenonah Avenue frontage on defendant's property is 153.08 feet. He also stated that defendant's survey was inaccurate. Defendant, ninety-one years of age and, at this point in the litigation, proceeding pro se, opposed the summary judgment motion and filed a responding set of papers. It is unclear on this record precisely what was before the court on the motion.
In granting summary judgment, the judge reviewed and accepted as accurate plaintiff's survey and the deeds in the chain of title to plaintiff's property. She also concluded that the 1995 judgment did not bar plaintiff's claims for relief because defendant "did not file the judgment with the County Clerk as would be required to enforce the [f]inal [j]udgment against third parties. N.J.S.A. 46:22-1; Sonderman v. Remington Constr. Co., 127 N.J. 96, 110-11 (1992)."
This appeal followed.
N.J.S.A. 46:22-1 provides as follows:
Every deed or instrument of the nature or description set forth in section 46:16-1 of this title shall, until duly recorded or lodged for record in the office of the county recording officer in which the affected real estate or other property is situate, be void and of no effect against subsequent judgment creditors without notice, and against all subsequent bona fide purchasers and mortgagees for valuable consideration, not having notice thereof, whose deed shall have been first duly recorded or whose mortgage shall have been first duly recorded or registered; but any such deed or instrument shall be valid and operative, although not recorded, except as against such subsequent judgment creditors, purchasers and mortgagees.
N.J.S.A. 46:16-1 sets forth a list of instruments a party may present to a county officer for recording. N.J.S.A. 46:16-2 expands that list to include "[a]ll instruments of every kind" affecting title to real estate. Clearly, a quiet title judgment with a metes and bounds description, like the 1995 judgment at issue here, is recordable and, therefore, subject to N.J.S.A. 46:22-1.
Under the statute, a bona fide purchaser for valuable consideration is bound by the terms of an unrecorded judgment if the bona fide purchaser for valuable consideration had notice of the judgment or if a "reasonable" search of its chain of title would have led to the judgment. Island Venture Assocs. v. N.J. Dep't of Envtl. Prot., 179 N.J. 485, 493 (2004); Palamarg Realty Co. v. Rehac, 80 N.J. 446, 456 (1979). See also Scult v. Bergen Valley Builders, Inc., 76
N.J.Super. 125, 135 (Ch. Div. 1962) (prospective purchaser is obligated "to make a reasonable and diligent inquiry in connection with claims or rights in and to real estate -- or be charged with facts as such an inquiry would uncover -- . . . where facts are brought to the knowledge of that person which are sufficient to apprise him of the existence of an outstanding title or claim"), aff'd, 82
N.J.Super. 378 (App. Div. 1964).
While plaintiff claims "the notice issue was not before the court, " we observe that plaintiff pled a lack of notice in the complaint to quiet title, and defendant's answer included a denial of this assertion. Also, notice is a critical element under N.J.S.A. 46:22-1. Accordingly, we are not persuaded that we should ignore this critical factual issue on appeal.
As we noted earlier, an appellate court must "view the evidence in the light most favorable to the non-moving party." Calco Hotel Management Group, Inc. v. Gike, 420
N.J.Super. 495, 502-03 (App. Div.), certif. denied, 208 N.J. 600 (2011). An appellate court's "duty upon review of a summary judgment motion is to independently canvass the record and determine whether the trial court's grant of summary judgment is correct as a matter of law." Id. at 507. While defendant did not specifically reference the notice issue in a responding statement of material facts, plaintiff certainly knew from the pleadings and other documents that this critical issue was contested by defendant.
The issue of whether plaintiff had actual or constructive notice of the 1995 judgment is a genuine issue of material fact and should have barred entry of summary judgment for the plaintiff. Thus, summary judgment for plaintiff must be reversed. In addition, on remand, the trial court must not restrict its consideration of the case to the issue of notice, alone, but must consider both parties' contentions and evidence pertaining to the question of the frontage of each property along Wenonah Avenue, in the event the trial court resolves the issue of notice against defendant.
The trial court's determination that "[t]he chain of title for lot 14 supports that the frontage for lot 14 is 153.08 feet" and "the metes and bounds description in the recorded deed are consistent with the survey prepared by Mr. Putnam[, ]" is cursory and did not address defendant's various factual averments respecting the records pertaining to the frontage of the two properties along Wenonah Avenue, or indeed, plaintiff's knowledge prior to conveyance or his review of the tax map. Such fact-sensitive issues require a trial for resolution. The trial court must resolve, as well, the equitable issues that arise in such cases. See Sonderman, supra, 127 N.J. at 108 (wherein the Court explained that "'[g]enerally speaking, and absent any unusual equity, a court should decide a question of title such as this in the way that will best support and maintain the integrity of the recording system.'" (quoting Palamarg Realty Co., supra, 80 N.J. at 453)).
Reversed and remanded for further proceedings consistent with this opinion.