Robert A. Bliesmann v. William Duda ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2526-22
ROBERT A. BLIESMANN
and the Estate of LORETTA M.
BLIESMANN,
Plaintiffs-Respondents,
v.
WILLIAM DUDA,
Defendant-Appellant.
___________________________
Argued April 15, 2024 – Decided April 29, 2024
Before Judges Mawla and Chase.
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
C-000027-22.
Michael J. Pifko argued the cause for appellant.
Lauren Murray Dooley argued the cause for respondent
(Novins, York, Jacobus & Dooley, PA, attorneys;
Lauren Murray Dooley, on the brief).
PER CURIAM
Defendant William Duda appeals from an April 19, 2023 order granting
summary judgment in favor of plaintiffs Robert A. Bliesmann and the Estate of
Loretta M. Bliesmann and ordering defendant to execute a utility easement. We
affirm.
I.
Plaintiffs own a property located at 900 Ridge Road in Brick Township
("Ridge Road Property"). The Ridge Road Property fronts Ridge Road.
Defendant is the owner of a property located at 810 Bristol Lane in Brick
Township ("Bristol Lane Property"). The Ridge Road Property and the Bristol
Lane Property sit back-to-back from one another. The Bristol Lane Property is
currently developed with a single-family residence, while the Ridge Road
Property is a vacant wooded parcel.
Both properties were created by a minor subdivision approval by the Brick
Township Planning Board obtained by plaintiffs in 1989. The minor subdivision
map depicts a twenty-foot-wide utility easement running from a Bristol Lane
right-of-way along the easterly property line of the Bristol Lane Property and
terminating at the rear of Ridge Road Property. The subdivision plan was duly
executed after obtaining Planning Board approval and was filed in May 1989
with the Ocean County Clerk.
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On June 16, 1989, a deed was executed for the sale of the Bristol Lane
Property from plaintiffs to defendant. The deed contains the following
description: "Subject to a [twenty foot] wide utility easement running along the
easterly line of [the Bristol Lane Property] from the northerly line of Bristol
Lane to the northerly line of [the Bristol Lane Property]" ("Easement"). Over
the years, defendant has executed multiple mortgages on the Bristol Lane
Property, which all include the same language used in the deed. While the
Easement was granted and referenced in the deed and defendant's mortgages,
there is no separate, written recording of the Easement in the Ocean County
Clerk's Office.
Plaintiffs are attempting to sell the Ridge Road Property, and the title
company requires a separate written recording of the Easement to convey clear
title. There is no other public utility access to the Ridge Road Property. Thus,
the Easement would provide typical water and sewer service lines to a main,
which is located on Bristol Lane, so that the Ridge Road Property can be
developed. Plaintiffs requested defendant's execution of the Easement multiple
times, and defendant continuously refused.
Plaintiffs filed a complaint and order to show cause for specific
performance of the execution of the Easement. Attached to the complaint was
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a certification of plaintiffs' expert witness, Robert C. Burdick, P.E., a licensed
State engineer, which states, if plaintiffs were prevented from running utility
lines from the main located on Bristol Lane, there would be substantial cost to
otherwise run the lines. Defendant filed an answer and counterclaim.
Defendant's counterclaim argued plaintiffs failed to disclose the right to a utility
easement, a material fact he asserted was known to them, when contracting for
the sale of the Bristol Lane Property. In March 2023, both parties moved for
summary judgment.
On April 19, 2023, after oral argument, the trial judge granted plaintiffs'
motion for summary judgment and denied defendant's cross-motion. The judge
ordered defendant execute the Easement within seven days of the order's filing,
and if he failed to do so, plaintiffs were permitted to file a motion to enforce
litigant's rights. In his oral opinion, the judge found a valid and enforceable
easement existed and found plaintiffs clearly reserved a utility easement through
the deed for sale of the Bristol Lane Property. The judge further found defendant
was placed on notice of the reservation of the Easement for utility purposes by
the deed itself and by the mortgages entered into and signed by defendant. And,
neither laches nor the statute of frauds applied because the deed constituted a
written document satisfying both doctrines.
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II.
We review a trial court's summary judgment decision de novo. DeSimone
v. Springpoint Senior Living, Inc., 256 N.J. 172, 180 (2024). A motion for
summary judgment must be granted if the moving party can demonstrate "there
is no genuine issue as to any material fact challenged and that the moving party
is entitled to judgment or order as a matter of law." R. 4:46-2(c). "To decide
whether a genuine issue of material fact exists, the trial court must 'draw[] all
legitimate inferences from the facts in favor of the non-moving party.'"
Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting
Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)); see also Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "The court's function
is not 'to weigh the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm., Inc.,
247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. 520, 540 (1995)).
An easement is a "nonpossessory incorporeal interest in another's
possessory estate in land, entitling the holder of the easement to make some use
of the other's property." Leach v. Anderl, 218 N.J. Super. 18, 24 (App. Div.
1987). The landowner burdened by the easement, or the servient owner, "may
not, without the consent of the easement holder, unreasonably interfere with the
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[other party's] rights or change the character of the easement so as to make the
use thereof significantly more difficult or burdensome." Tide-Water Pipe Co.
v. Blair Holding Co., 42 N.J. 591, 604 (1964). "Equally well recognized is the
corollary principle that there is, arising out of every easement, an implied right
to do what is reasonably necessary for its complete enjoyment, that right to be
exercised, however, in such a reasonable manner as to avoid unnecessary
increases upon the landowner." Ibid.III.
Defendant argues the trial judge's finding was erroneous because it
incorrectly determined he had knowledge of the Easement when purchasing the
Bristol Lane Property. The judge also wrongfully allowed plaintiffs to enforce
the Easement without first complying with the Planning Board's requirement the
Easement be recorded as a condition of approval for their application for minor
subdivision.
Defendant posits the publicly recorded documents referenced by plaintiffs
lack the specificity required to establish an express grant of an easement on his
property for the purpose of placing water and sewer lines. He further contends
plaintiffs failed to reference the Easement their attorney prepared in the deed of
sale and did not record an easement agreement with the Ocean County Clerk,
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notwithstanding the condition imposed by the Planning Board for approval of
the minor subdivision plan. Taken together, these facts demonstrate plaintiffs'
request for specific performance of execution of the Easement was fatally
flawed.
It is well-settled an easement can be created by grant or by reservation to
the grantor. Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534,
551 (App. Div. 1957). "[W]hen there is any ambiguity or uncertainty about an
easement grant, the surrounding circumstances . . . play a significant role in the
determination of the controlling intent." Hyland v. Fonda, 44 N.J. Super. 180,
187 (App. Div. 1957).
Defendant's claim he lacked knowledge of the Easement is belied by the
record. Here, it is clear from several of the documents submitted by both
plaintiffs and defendant a utility easement existed and was described in
documents that would sufficiently place defendant on notice of its existence.
First, the 1988 minor subdivision approval from the Brick Township Planning
Board and the respective tax map and plans demonstrating the size and location
of the Easement placed defendant on sufficient notice of the Easement.
Essentially, the incorporation of the Easement into the minor subdivision plan
benefitted defendant because it enabled plaintiffs to subdivide their land, sell a
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lot to defendant, and allowed defendant to then build his home on the Bristol
Lane Property.
Next, the original deed for the sale of the Bristol Lane Property to
defendant includes a description of the Easement. So do two mortgages for the
Bristol Lane Property executed by defendant in 1989, a mortgage for the Bristol
Lane Property executed by defendant in 2014, the current tax map of the
Township of Brick, and a survey performed on the Bristol Lane Property in June
2021. Many of these documents contain defendant's signature, further
evidencing his notice of the Easement since his purchase of the land in 1989.
Defendant further asserts the trial court's granting plaintiffs summary
judgment incorrectly relied on the certification of Robert C. Burdick, P.E .,
because the certification failed to satisfy Rule 1:4-4(b), requiring certifications
to swear to the truthfulness of the statements contained therein. Defendant
argues because Burdick did not swear to the truthfulness of his statements, the
trial court should have disregarded the certification in its entirety. However,
this, too, is belied by the record.
The trial court relied on the certification only to explain what main utility
lines were currently available for the Ridge Road Property and how those lines
would be accessed by the Easement. The trial court explained its limited use of
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the certification for these reasons and did not find the need to rely on the
certification for any other purpose. The certification had no impact on the
court's determination as the record is replete with other documents describing
and illustrating the location and terms of the Easement.
Defendant next argues plaintiffs' action is for the enforcement of a
contract dating back to 1989, which is well beyond the six-year statute of
limitations under N.J.S.A. 2A:14-1. This statute governs certain actions,
including claims for: trespass; the taking, detaining, or converting personal
property; replevin actions; and recovery on claims or liability under contractual
agreements. We are unpersuaded.
Plaintiffs are attempting to exercise their rights as easement holders,
which does not implicate N.J.S.A. 2A:14-1. The right to use of a granted
easement is different from other causes of action, such as recovery under
contract. Since the rights of an easement holder are not subject to this statute,
the six-year statute of limitations does not apply.
Lastly, defendant argues plaintiffs' action should be barred under the
doctrine of laches. Defendant explains plaintiffs possessed knowledge of the
Easement prior to conveying title for the Bristol Lane Property to him in 1988,
and their failure to disclose the Easement, appropriately record it in the Ocean
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County Clerk's Office, and failure to act on the Easement in any manner in over
thirty years all caused him "extreme detriment."
The doctrine of laches "is invoked to deny a party enforcement of a known
right when the party engages in an inexcusable and unexplainable delay in
exercising that right to the prejudice of the other party." Knorr v. Smeal, 178
N.J. 169, 180-81 (2003). "Laches may only be enforced when the delaying party
had sufficient opportunity to assert the right in the proper forum and the
prejudiced party acted in good faith believing that the right had been
abandoned." Id. at 181. "The core equitable concern in applying laches is
whether a party has been harmed by the delay." Ibid.Here, plaintiffs obtained the Easement as a result of a condition imposed
by the Brick Township Planning Board for minor subdivision approval in 1988.
The Easement was required in the event the Ridge Road Property was ever to be
developed so that the property would have access to water and sewer. The fact
that plaintiffs had obtained the Easement and never took action to utilize it until
now does not harm defendant. Defendant was aware of the Easement at its
creation, and plaintiffs were free to use the Easement as it became appropriate.
Now, as the Ridge Road Property is set to be sold and developed out of its
wooded and unoccupied status, the need for the Easement has finally become
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appropriate, and defendant must abide by the terms he agreed to, as set forth
under the deed and the minor subdivision approvals created in 1989.
To the extent we have not specifically addressed any other contentions
raised by defendant, it is because they lack sufficient merit to warrant discussion
in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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