THEODORE IMFELD VS. THOMAS BUTTERY (DC-015679-19, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2690-19
THEODORE IMFELD and
W&F PROPERTIES, LLC,
Plaintiffs-Respondents,
v.
THOMAS BUTTERY and
LENORE BUTTERY,
Defendants-Appellants.
________________________
Submitted May 3, 2021 – Decided July 29, 2021
Before Judges Currier and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. DC-015679-
19.
Lawrence M. Centanni, attorney for appellants.
The Law Office of Piro, Zinna, Cifelli, Paris &
Genitempo, attorneys for respondents (Richard A.
Grodeck, of counsel and on the brief).
PER CURIAM
Defendants Thomas Buttery and Lenore Buttery appeal from two orders
of the Special Civil Part: (1) a January 30, 2020 order for possession of the house
in which they reside; and (2) a January 30, 2020 order denying their motion to
dismiss this ejectment action for lack of subject matter jurisdiction. Having
concluded that the Special Civil Part lacked jurisdiction to hear the matter, we
vacate both orders and remand for entry of an order dismissing the complaint.
I.
The following facts are derived from the record. In 1985, plaintiff
Theodore Imfeld and Buttery 1 acquired title to a parcel in South Plainfield.
Although the property is zoned for commercial use, a house situated on the
parcel was a non-conforming use at the time of the purchase. After the transfer
of title, Buttery resided in the house. He was later married and his wife moved
into the residence. Imfeld and Buttery were also co-owners of Ted's
Landscaping & Paving, Inc., which operated at the property.
The parties intended to further develop the property for their business
operations. On July 16, 1985, the municipal planning board approved the
parties' site plan application for a commercial development, subject to the
condition that the residence be demolished within five years. Buttery thereafter
1
Defendants are married. We refer to Thomas Buttery as "Buttery."
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obtained from the planning board a series of extensions of the demolition based
on hardships caused by his poor health. The last extension expired in January
1993. The residence was never demolished and the Butterys continued to live
in the house.
In December 2001, Imfeld acquired Buttery's interest in the property. In
the contract of sale, Imfeld granted Buttery a life estate entitling him to live in
the house rent free. The agreement provides that Imfeld is to pay Buttery an
additional $100,000 in the event Buttery elects to terminate his life estate and
vacate the property.
In May 2019, Imfeld formed plaintiff W&F Properties, LLC (W&F), to
which he transferred his interest in the property. The transfer of title appears to
have alerted the municipality to the fact that the home had not been demolished.
On August 5, 2019, a municipal official served Imfeld and W&F a
summons for violating the demolition requirement in the 1985 resolution. In
addition, the municipality demanded that the home be demolished. Imfeld
appeared in municipal court on the summons and secured a continuance to
explore the possibility of obtaining a use variance for the house. After
determining that obtaining a use variance would be impossible, Imfeld
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demanded possession of the home from the Butterys. They refused to vacate the
property.2
On November 26, 2019, Imfeld and W&F filed a verified complaint for
ejectment against the Butterys in the Special Civil Part. They sought resolution
of the matter in a summary proceeding. The trial court subsequently issued an
order to show cause why the Butterys should not be ejected from the property.
The Butterys opposed the order to show cause and objected to resolution
of the matter in a summary fashion, given the complexity and nature of the facts
surrounding their occupancy of the home. In addition, they argued that the life
estate granted to Buttery in the December 2001 contract was a colorable claim
of right to possess the property pursuant to Rule 6:1-2(a)(4) outside the
jurisdiction of the Special Civil Part. The Butterys requested that the matter be
transferred to the Law Division or Chancery Division.
At about the same time, the Butterys filed a complaint in the Chancery
Division alleging Imfeld breached various provisions of the December 2001
contract for the transfer of Buttery's interest in the property. The Butterys
2
Ultimately, Imfeld entered a guilty plea to the charge of failing to comply with
the resolution requiring demolition of the home. The court imposed a $1000
fine. Imfeld argues that he faces daily fines and further enforcement action,
including incarceration, as long as the home is not demolished.
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alleged, among other claims, that Imfeld's formation of W&F and his transfer of
title to the property to that entity were intended to defeat and subvert Buttery's
life estate. They also alleged that Imfeld's filing of the ejectment action in the
Special Civil Part constituted malicious prosecution and abuse of civil process.
The Butterys demanded: (1) specific performance of various provisions of the
December 2001 contract, including recognition of Buttery's life estate in the
property; (2) application of promissory estoppel to prevent their removal from
the property; (3) partition of the life estate and the compelled purchase of the
life estate by Imfeld; (4) reformation of the contract; and (5) damages.
The Butterys moved in the Special Civil Part to dismiss the ejectment
action for want of subject matter jurisdiction because Buttery asserted a
colorable claim to a possessory interest in the property. They argued that
Buttery's claim to a life estate, if proven, would provide a complete defense to
the ejectment action. In the alternative, the Butterys requested: (1) that the
matter not proceed in a summary fashion; (2) that they be allowed to file an
answer and counterclaim; or (3) that the matter be transferred to the Chancery
Division for consolidation with their breach of contract and malicious
prosecution action, which, they alleged, involved claims arising out of
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ownership of the same parcel and intertwined issues that should be resolved
together.3
During the summary proceeding on the ejection action, Imfeld and W&F
argued that the life estate granted in the December 2001 agreement was invalid
because it is contrary to the 1985 resolution and subsequent extensions, which
require demolition of the home. Buttery countered that he had at the very least
a colorable claim to possession of the home, which deprived the Special Civil
Part of jurisdiction to hear the ejectment action.
On January 30, 2020, the trial court issued an oral opinion. The court
denied Butterys' motion to dismiss the ejectment action for want of subject
matter jurisdiction. The court concluded the Butterys did not have a colorable
claim to possession of the property because the provision of the December 2001
contract granting him a life estate was void as contrary to law and public policy.
The court severed that provision from the remainder of the contract. As a result,
the court granted Imfeld and W&F's request for an order for possession.
3
The Butterys also moved in the Chancery Division to transfer the ejectment
action to the Chancery Division for consolidation with their pending breach of
contract and malicious prosecution action. On March 9, 2020, the Chancery
Division denied the motion to transfer as moot, given the January 30, 2020
orders of the Special Civil Part.
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On January 30, 2020, the court entered an order denying the Butterys'
motion to dismiss the ejectment action. In addition, on that date the court
entered an order for possession in favor of Imfeld and W&F. The court stayed
the January 30, 2020 order for possession until March 16, 2020 and directed that
the order "may be stayed or otherwise modified by the judge handling" the
Butterys' Chancery Division action. The record does not indicate whether the
stay of the order for possession was subsequently extended.
This appeal follows. The Butterys make the following arguments.
POINT ONE
THE TRIAL COURT LACKED SUBJECT MATTER
JURISDICTION TO HEAR AND CONSIDER [THE]
COMPLAINT. PURSUANT TO RULE 6:2-3(4)(a)[,
THE] ACTION, GIVEN ISSUES RELATED TO
[BUTTERY'S] CLAIMS OF RIGHT PURSUANT TO
A LIFE ESTATE, WAS NOT COGNIZABLE IN THE
SPECIAL CIVIL PART.
POINT TWO
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN HANDLING THE INSTANT MATTER IN
A SUMMARY FASHION, RATHER THAN
ORDERING A FULL PLENARY TRIAL.
POINT THREE
THE TRIAL COURT ABUSED ITS DISCRETION IN
NOT DEFERRING ADJUDICATION OF THIS
MATTER UNTIL SUCH TIME AS THE CHANCERY
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DIVISION HAD AN OPPORTUNITY TO RULE
UPON [THE BUTTERYS'] NOTICE OF MOTION TO
TRANSFER AND CONSOLIDATE.
POINT FOUR
THE TRIAL COURT COMMITTED REVERSIBLE
ERROR IN DENYING [THE BUTTERYS'] MOTION
TO DISMISS [THE] COMPLAINT.
II.
"A trial court's interpretation of the law and the legal consequences that
flow from established facts are not entitled to any special deference."
Manalapan Realty, L.P. v. Twp. Comm. of the Twp. of Manalapan, 140 N.J.
366, 378 (1995); accord Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Pursuant to N.J.S.A. 2A:35-1, "[a]ny person claiming the right of
possession of real property in the possession of another, or claiming title to such
real property, shall be entitled to have his rights determined in an action in the
Superior Court." The Butterys do not contest the right of Imfeld and W&F to
file an ejectment action against them pursuant to this provision. They argue,
however, that the Special Civil Part lacked jurisdiction to adjudicate Imfeld and
W&F's claims and to decide those claims in a summary proceeding. We agree.
The jurisdiction of the Special Civil Part is limited. Rule 6:1-2(a)(4)
expressly provides that
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[t]he following matters shall be cognizable in the
Special Civil Part . . . .
....
(4) Summary actions for the possession of real
property pursuant to N.J.S.A. 2A:35-1, et seq., where
the defendant has no colorable claim of title or
possession . . . .
A colorable claim is "[a] plausible claim that may reasonably be asserted, given
the facts presented and the current law." Black's Law Dictionary 312 (11th ed.
2019). "The Legislature did not intend for the Special Civil Part . . . to determine
disputed land titles and complex equitable issues in the context" of a summary
proceeding, in which discovery is not permitted. Carr v. Johnson, 211 N.J.
Super. 341, 347 (App. Div. 1986).
In response to Imfeld and W&F's ejection action, Buttery asserted a
colorable claim of a possessory interest in the property through a life estate.
While Imfeld and W&F argued that the contract provision purporting to grant
the life estate to Buttery was unenforceable because of the demolition
requirement in the conditional site plan approval, that contention did not render
Buttery's claim of a possessory interest facially invalid. The validity of Imfeld
and W&F's position was not readily apparent, particularly in light of the
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undisputed inaction by the municipality to enforce the demolition requirement
over a period of nearly twenty-seven years.
The facts alleged in response to the ejection action raised questions of
estoppel and reliance, as well as the validity of the December 2001 sale of
Buttery's interest in the property if Imfeld's transfer of a life estate was invalid .
The severability of the life-estate provision from the remainder of the contract
is disputed by the parties. If the life-estate provision is invalid and not severable
from the remainder of the contract, Buttery would have an ownership interest in
the property and an obvious colorable claim of a possessory interest.
The Butterys asserted various contract and equitable claims in their
Chancery Division action, which was pending at the time that the Special Civil
Part held its summary proceeding on the ejectment action. The Butterys'
Chancery Division claims are inextricable from the claims asserted in the
ejectment action. It was error for the Special Civil Part to resolve the summary
ejectment action rather than dismiss the complaint and allow the parties to
pursue their claims in the Chancery Division.
In light of our conclusion with respect to subject matter jurisdiction, we
need not resolve the remaining claims raised by the Butterys.
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The January 30, 2020 orders are vacated and the matter is remanded for
entry of an order dismissing the complaint. We do not retain jurisdiction.
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