NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1949-23
AKOS SULE,
Plaintiff-Appellant,
v.
CODIROLI FAMILY ENTERPRISES, LP,
Defendant-Respondent. _________________________
Argued June 3, 2025 – Decided July 9, 2025
Before Judges Smith and Chase.
On appeal from the Superior Court of New Jersey, Chancery Division, Essex County, Docket No. C- 000118-22.
Robert F. Simon argued the cause for appellant (Herold Law PA, attorneys; Robert F. Simon, of counsel and on the briefs; Christine M. Faustini, on the briefs).
James K. Webber argued the cause for respondent (Webber McGill LLC, attorneys; James K. Webber, on the brief).
PER CURIAM In this quiet title action involving a narrow strip (the "Strip") of land
between two commercial properties in West Caldwell, plaintiff Akos Sule
appeals from a January 16, 2024 Chancery Division order that, after a non-jury
trial, granted judgment to defendant Codiroli Family Enterprises, L.P. declaring
defendant the owner of the strip. We affirm.
I.
Plaintiff has owned the commercial property located at 267 Fairfield
Avenue ("the Property"), designated as Block 1401, Lot 4, since 1991 when he
purchased it from his predecessor-in-interest, Graco, Inc. The deed was
recorded in the Essex County Register's Office ("1991 Deed"). Prior to his
purchase of the Property, plaintiff obtained a survey prepared by Richard F.
Smith, Jr. ("Smith Survey"). The Smith Survey was consistent with the legal
description of the Property contained in the 1991 Deed, which designated the
Strip as part of "Tract II."
In 1999, James and Joan Codiroli purchased the adjacent property, 1
Fairfield Crescent, designated as Block 1401, Lot 3. A year later, Codiroli's
transferred Lot 3 to defendant, Codiroli Family Enterprises, L.P. and the deed
was properly recorded. The Strip also appears in their deed.
A-1949-23 2 The Strip is an irregularly shaped portion approximately 6,262 square feet,
approximately ten feet wide at its widest point and located along the shared lot
line between Lot 4 and Lot 3. The Strip is comprised of an area with curbing
and asphalt with parking spaces and a small grassy section.
The history of the respective properties at issue is slightly confusing but
important to trace. Albert and Adele Hrubec (the "Hrubecs"), husband and wife,
once owned most of the land that today comprises the two properties. By a
recorded 1956 deed, the Hrubecs, conveyed land, including what is now Lot 3,
to Louis Malanga, Alfred Malanga and George D. Malanga (collectively,
"Malanga"). The description of the land conveyed in the 1956 Hrubec-to-
Malanga deed did not include the Strip. By recorded deed in 1966 the Hrubecs
conveyed the greater part of what is now Lot 4, including a majority of the Strip,
to Graco Sales. By another recorded deed in 1966, Anthony and Rosalind Pio
Costa, husband and wife, conveyed the rest of what is now Lot 4, including the
rest of the Strip, to Graco Sales.
In 1967, Graco Sales apparently arranged with its neighbor, at this time
Mal-Bros. Contracting Co. ("Mal-Bros."), Malanga's successor-in-title, to
subdivide its Lot 4 to create the Strip and deed it to Mal-Bros. Meanwhile, Mal-
Bros. would deed to Graco Sales a roughly equally sized parcel of land adjacent
A-1949-23 3 to Lot 4, which the parties in this matter took to calling the "Bump." No
documentation of that transaction has been located other than a June 1967
subdivision map (the "1967 Subdivision"). The planning board and the Mayor
of West Caldwell signed and approved that proposed subdivision. The 1967
Subdivision identifies the land corresponding to the Strip as land "to be
subtracted from Lot 1 [now part of Lot 4] and added to Lot 1-A [now Lot 3]"
and as land "to be subtracted from Lot 2H [the rest of Lot 4] and added to Lot
1-A [now Lot 3]." The document also indicates that the parcel known as the
Bump was "to be added to Lot 1 [now Lot 4]." There is no record evidence of
Graco Sales having recorded the approved subdivision.
The Strip first appears in defendant's chain of title in a 1971 deed
transferring Lot 3 to one of defendant's predecessors-in-interest. That same deed
excludes the Bump, as described by the 1967 Subdivision. From then until the
present day, Lot 3's chain of title includes the Strip. Consistent with that 1971
Lot 3 deed, by another 1971 deed recorded in May 1974, Graco Sales conveyed
the current Lot 4 to Graco, Inc., without the Strip and with the Bump.
In contrast, the Strip disappears from Lot 4's chain of title in 1971, only
to reappear in 1990, shortly before plaintiff purchased Lot 4. At that time, a
deed that includes the Strip was recorded conveying Lot 4 that was made "as of"
A-1949-23 4 May 12, 1972, and was from the trustee in dissolution of Graco Sales to Graco,
Inc. ("May 1972 Graco Deed"). This meant that between 1974 and 1990, the
only recorded deeds reflecting ownership of the Strip were in the chain of title
for Lot 3.
In July 2022, plaintiff filed a complaint to quiet title against defendant and
for compensation for the use of the Strip since 1991. Defendant filed an answer
with affirmative defenses and counterclaims seeking a declaratory judgment
awarding the Strip to them, and ownership of the Strip by adverse possession
and prescriptive easement. Plaintiff then filed an amended complaint, adding a
claim for declaratory judgment. Defendant filed an amended answer and
counterclaim, adding counts asserting ownership of the Strip by color of title,
equitable conversion, and constructive trust.
In September 2023, a three-day bench was held in the Chancery Division.
At trial, plaintiff produced one expert witness, an attorney who is also a licensed
title insurance producer and title insurance instructor. Defendant's witnesses
included: Janet Toner, as representative of the defendant's entity; the plaintiff;
and defendant's expert, an attorney recognized as an expert in title searching,
title insurance, and general property law.
A-1949-23 5 Plaintiff's expert was able to trace the Strip throughout plaintiff's chain of
title to 1933. The expert also testified to changes of the Strip from the 1960s to
the present. The expert opined that, based on the chain of title, plaintiff owned
the Strip. On cross examination, the expert testified that he did not inquire into
the title history of Lot 3 prior to 1971.
Toner, as managing partner for defendant, testified to her understanding
that the Strip was necessary to meet West Caldwell's zoning requirements for a
commercial property. She testified that without the Strip they would not meet
the minimum requirements for parking, setback, and width. She also testified
that to her knowledge Lot 3's occupants had used the Strip for the last fifty years.
Additionally, she stated that since they acquired the property, defendant paid for
the Strip's paving, sealcoating, and plowing as well as mowing the portion of
the Strip that was grass. She corroborated the paving repairs with checks to the
paving company.
Plaintiff testified that when he purchased the property in 1991, the Smith
Survey was "commissioned in connection with the purchase of his property
clearly show[ing] the [S]trip as a shaded area with notation pointing to deeds
that included and deeds that excluded the strip from his lot." Plaintiff's title
insurance policy did not include the Strip. Plaintiff further testified that the
A-1949-23 6 Strip had been used by defendant as a parking lot since plaintiff took possession
of the property in 1991, and that he was aware that Lot 3 had been using the
Strip for parking since it was built in 1967. He stated that in 2021, for the first
time, he gave permission to defendant to continue using the Strip. He also
testified that he never used the Strip for parking because it would be
"trespassing" and that he never completed maintenance or repairs on the paved
section of the Strip as he did not want to trespass.
Defendant's expert testified as to his conclusion that plaintiff was not a
bona fide purchaser of the Strip because of his actual and inquiry notice. He
also outlined the applicable law regarding the filing of deeds and the
implications and obligations to a purchaser who had issues with a problem in
the tile search. During cross-examination on the second day of testimony, he
acknowledged that he discussed his testimony with counsel over the night recess
in his testimony. He did not state the substance of his discussions.
The court decided the matter on December 20, 2023, giving an oral
statement of reasons. The court found that plaintiff had not established rightful
ownership of the Strip. First, the court began by determining the credibility of
the witnesses. The court found that while plaintiff's expert was knowledgeable,
he was too entrenched in his position, "meaning that he limited his conclusions
A-1949-23 7 solely to the record change of title as it related to plaintiff's claim of the Strip."
The court further found that the expert's "inability or refusal to consider the very
crux of the issue before the court impacted his credibility and the weight given
by the court to his testimony and his conclusions."
In contrast, the court found the expert for the defendant "was not at all
entrenched in his positions and he made allowances for factual variables." The
court was particularly impressed by his ability to apply the specific facts to his
conclusions. The court found him credible and gave significant weight to his
testimony. The court noted that at one point on cross-examination, the expert
was asked if he had discussed his testimony with defendant's counsel over the
night break. While the court did not condone such conduct, it did not find it
negatively impacted his credibility, particularly considering his testimony prior
to the break.
The court also determined the credibility of the parties. First, the court
found that Toner's testimony was credible and established defendant's use of the
Strip for parking for more than thirty years, as well as the upkeep and
maintenance of the Strip by defendant. In contrast, the court found plaintiff not
credible, noting that plaintiff did not remember a lot of specific details, was
agitated and did not answer the questions he was asked. The court further noted
A-1949-23 8 that plaintiff tried to establish that he had granted permission to defendant to use
the Strip but "was unable to present confident evidence that would allow the
court to reach the conclusion that there was a definitive statement of permission
given by plaintiff to defendant."
The court acknowledged that our caselaw dictates that in title disputes,
courts should rule in ways supporting and maintaining the recording system.
The court, citing Weintraub v. Krobatsch, 64 N.J. 445, 456 (1974), also
acknowledged that "the integrity of record title in rare cases can bend to
accommodate compelling equities."
Next, after defining the types of notice, the trial court determined that at
the time plaintiff purchased his property, he was on actual notice that there was
a potential problem with title to the Strip. The court found plaintiff had actual
notice because: (1) the 1991 Smith Survey highlighting the uncertainty
regarding the Strip; (2) defendant's use of the Strip, or at least a portion of the
Strip, as a parking area; and (3) the "as of" deed with a nineteen-year
discrepancy between the date of preparation and the date of recording.
The court also found that the evidence put plaintiff on inquiry notice,
requiring him to make a reasonable and diligent inquiry regarding defendant 's
ownership to claims to the Strip. Moreover, the court determined that plaintiff
A-1949-23 9 failed to do so and "even if [he] was the holder of legal title, it would be
inequitable for him to retain and enjoy the beneficial interest as against the
interest of the defendant who is equitably entitled to that enjoyment."
Although the court determined that equity required defendant to prevail,
it also considered whether defendant had obtained the Strip by adverse
possession. After outlining the requirements for adverse possession, the court
determined that defendant had satisfied its burden of proof and that plaintiff did
not challenge nor present evidence to the contrary. As such, the court stated
defendant had proved that it adversely possessed the property. On January 16,
2024, the court executed an order effectuating its decision.
On appeal, plaintiff argues the court made incorrect factual findings and
then misapplied the applicable laws concerning: (1) the ownership of property
based on recorded deeds of conveyance; and (2) adverse possession.
II.
We begin by acknowledging the limited scope of our review. In an appeal
from a non-jury trial, appellate courts "give deference to the trial court that heard
the witnesses, sifted the competing evidence, and made reasoned conclusions."
Griepenburg v. Twp. of Ocean, 220 N.J. 239, 254 (2015); Balducci v. Cige, 240
N.J. 574, 595 (2020); State v. McNeil-Thomas, 238 N.J. 256, 271 (2019).
A-1949-23 10 "Appellate courts owe deference to the trial court's credibility determinations as
well because it has 'a better perspective than a reviewing court in evaluating the
veracity of a witness.'" C.R. v. M.T., 248 N.J. 428, 440 (2021) (quoting Gnall
v. Gnall, 222 N.J. 414, 428 (2015)). This deferential standard is applied
"because an appellate court's review of a cold record is no substitute for the trial
court's opportunity to hear and see the witnesses who testified on the stand."
Balducci, 240 N.J. at 595 (2020).
"A reviewing court must accept the factual findings of a trial court that
are 'supported by sufficient credible evidence in the record.'" State v.
Mohammed, 226 N.J. 71, 88 (2016) (quoting State v. Gamble, 218 N.J. 412, 424
(2014)). "Reviewing appellate courts should 'not disturb the factual findings
and legal conclusions of the trial judge' unless convinced that those findings and
conclusions were 'so manifestly unsupported by or inconsistent with the
competent, relevant and reasonably credible evidence as to offend the interests
of justice.'" Griepenburg, 220 N.J. at 254 (quoting Rova Farms Resort, Inc. v.
Invs. Ins. Co. of Am., 65 N.J. 474, 484 (1974)).
If issues on appeal present mixed questions of law and fact, we give
deference to the supported factual findings of the trial court but review de novo
the trial court's application of legal rules to the factual findings. State v. Pierre,
A-1949-23 11 223 N.J. 560, 576 (2015); State v. Nantambu, 221 N.J. 390, 404 (2015); State v.
Harris, 181 N.J. 391, 416 (2004).
III.
A.
Plaintiff posits that the trial court improperly determined the witnesses'
credibility and then gave undue weight to defendant's expert testimony. He also
contends the court placed too much weight on the purported 1967 subdivision.
We disagree. The court's determinations were supported by competent, relevant,
and credible evidence and therefore should not be disturbed. See Griepenburg,
220 N.J. at 254.
Moreover, plaintiff's argument that the court improperly weighed
defendant's expert's testimony because the expert spoke with defense counsel
during the overnight recess is without merit. The plaintiff bases this argument
on Rule 4:14-3(f), which says that during a deposition, there should be no
communication between the witness and their lawyer while the witness is being
questioned-except for discussions about legal privilege, confidentiality, or some
other limited circumstances permitted by court order. However, this Rule
specifically refers to depositions, not trials. The comments to this Rule also
clarify that the restrictions only apply while the deposition is actively
A-1949-23 12 happening, and "clearly does not address consultation during overnight, lunch
and other breaks." Pressler & Verniero, N.J. Ct. Rules, cmt. on R. 4:14-3(f)
(2025) (emphasis added).
Certainly, there are preclusions preventing an attorney from dictating a
client's trial testimony by telling the witness what to say. We have concluded a
trial judge holds "wide discretion" to determine whether to prevent a witness
from consulting with his attorney during a break in testimony. Horn v. Village
Supermarkets, 260 N.J. Super. 165, 175 (App. Div. 1992). In our view, at issue
is the balance between a client's right to engage legal representation and whether
demonstrated conduct would interfere with the truth-seeking function of a trial.
In this matter, plaintiff challenged defendant's expert's credibility by
asking the expert whether he discussed his testimony during the overnight break.
That question standing alone did not violate any recognized privilege.
Importantly, plaintiff presents no allegation that the expert altered his testimony
following the overnight recess. In fact, plaintiff fails to identify any post-break
inconsistencies in the witness's testimony, suggesting a need for further
examination. In light of the record, which is void of evidence of improper
coaching of the witness, we conclude the judge's decision to determine the
expert was credible was not an abuse of discretion.
A-1949-23 13 B.
Next, plaintiff contends the evidence presented shows that under the
Recording Act, he owned the Strip. He argues the trial court erroneously
disregarded the principles of race notice in N.J.S.A. 46:26A-1 (the "Recording
Act"), by improperly imputing actual and inquiry notice of issues relating to
ownership of the Strip to plaintiff at the time plaintiff purchased Lot 4 in 1991.
We disagree.
N.J.S.A. 2A:62-1 to -10 governs quiet title actions. N.J.S.A. 2A:62-1
provides:
Any person in the peaceable possession of lands in this state and claiming ownership thereof, may, when [their] title thereto, or any part thereof, is denied or disputed, or any other person claims or is claimed to own the same, or any part thereof or interest therein, . . . maintain an action in the superior court to settle the title to such lands and to clear up all doubts and disputes concerning the same.
"One of the purposes of [the Recording Act] is to permit a landowner to
sue for clarification of the validity or reach of [their] title in circumstances that
otherwise preclude a forum for the resolution of such a dispute. " Suser v.
Wachovia Mortg., FSB, 433 N.J. Super. 317, 325 (App. Div. 2013). A principal
purpose of the recording statutes is to protect bona fide purchasers "'against the
assertion of prior claims to the land based upon any recordable, but unrecorded
A-1949-23 14 instrument.'" Cox v. RKA Corp., 164 N.J. 487, 507 (2000) (quoting 29 N.J.
Practice, Law of Mortgages, § 102 at 386 (Roger A. Cunningham & Saul
Tischler) (1975)). "New Jersey's recording statutes address important public
policy concerns." Island Ventures Assocs. v. N.J. Dep't of Env't Prot., 179 N.J.
485, 492 (2004). Absent unusual equity considerations, our Supreme Court has
encouraged all New Jersey judges to make decisions "that will best support and
maintain the integrity of the recording system." Palmarg Realty Co. v. Rehac,
80 N.J. 446, 453 (1979).
A bona fide purchaser for value is one who takes title to property without
notice of a prior interest "and has paid a valuable consideration therefor[e]. . . ."
Venetsky v. W. Essex Bldg. Supply Co., 28 N.J. Super. 178, 187 (App. Div.
1953); see also Monsanto Emps. Fed. Credit Union v. Harbison, 209 N.J. Super.
539, 542 (App. Div. 1986). There are three ways a party can be on notice of
property interests: actual notice, constructive notice, and inquiry notice.
Actual notice arises when the purchaser has actual knowledge or information that a claim is outstanding against the property he or she proposes to acquire. It exists even though the purchaser may have to make an inquiry to ascertain the validity of the claim.
Constructive notice is notice inferred from the record and it exists whether or not the purchaser inspects the record. It exists when the record reveals the
A-1949-23 15 outstanding claim even if the purchaser must make an inquiry to ascertain the validity of the claim.
Inquiry notice (notice inferred from secondary facts) exists when the purchaser has notice of some fact that, in accordance with human experience, is sufficiently curious or suspicious that the purchaser should be obliged to make a further inquiry into it. If a reasonable inquiry would reveal that there is another outstanding interest, then the purchaser is on inquiry notice of that interest.
[6 Powell on Real Property § 82.02 (1)(d)(iv) (Michael Wolf ed. 2019) (emphasis in original).]
We are satisfied that the court's findings on actual and inquiry notice in
its well-reasoned decision are supported by the record. The court found notice
because (1) the 1991 Smith Survey highlighted the uncertainty regarding the
Strip; (2) plaintiff's knowledge of defendant's predecessors use of the Strip as a
parking lot before plaintiff purchased it; and (3) the "as of" deed with a nineteen-
year discrepancy between the date of preparation and the date of recording , and
(4) plaintiff's title policy, which excluded the strip. Plaintiff therefore had an
obligation to make further inquiry but failed to do so.
With plaintiff's title called into question, the trial court properly assessed
which party had equitable title to the Strip. In terms of real property, our Court
has created the legal fictions of "equitable ownership" or "equitable conversion"
which both rest "on the principle that, as between parties to a contract, equity
A-1949-23 16 regards things as done that were agreed to be done." Jock v. Zoning Bd. of
Adjustment of Twp. of Wall, 184 N.J. 562, 587-88 (2005). Here, based on
plaintiff's actual and inquiry notice, as well as the history of the properties
including the 1967 subdivision, the court was well within its discretion to award
the Strip to defendant.
C.
We also concur with the court's decision on adverse possession. Adverse
possession is a method of acquiring title through the expiration of statutes of
limitation which bar an ejection action and pass title to the property from the
record owner to the possessor. Patton v. N. J. Dist. Water Supply Comm'n, 93
N.J. 180, 186 (1983); O'Keeffe v. Snyder, 83 N.J. 478, 494 (1980); Stump v.
Whibco, 314 N.J. Super. 560, 576 (App. Div. 1998). Our Supreme Court has
recognized that "adverse possession promotes certainty of title and protects the
possessor's reasonable expectations." Devins v. Borough of Bogota, 124 N.J.
570, 577 (1991) (citations omitted). Adverse possession "rewards the person
who has made productive use of the land, it fulfills expectations fostered by long
use, and it conforms titles to actual use of the property." Randolph Town. Ctr.,
L.P. v. Cnty. of Morris, 374 N.J. Super 448, 458 (App. Div. 2005), aff'd in part,
A-1949-23 17 vacated in part on other grounds, 186 N.J. 78 (2006) (quoting Restatement
(Third) of Property: Servitudes § 2.17 cmt. c (2000)).
The adverse possession statute states:
Thirty years' actual possession of any real estate, uninterruptedly continued by occupancy, descent, conveyance or otherwise, wherever such possession commenced . . . shall be a good and sufficient bar to all prior locations, rights, titles, conveyances, or claims whatever, not followed by actual possession as aforesaid, and shall vest an absolute right and title in the actual possessor and occupier of all such real estate.
[N.J.S.A. 2A:14-31.]
In order to obtain property by adverse possession or to create an easement
by prescription, however, the use must be adverse or hostile, visible, open and
notorious, and continuous. Yellen v. Kassin, 416 N.J. Super. 113, 119-20 (App.
Div. 2010); see also Plaza v. Flak, 7 N.J. 215, 222-23 (1951). The proponent of
the easement has the burden of establishing the elements by a preponderance of
the evidence. Yellen, 416 N.J. Super. at 120.
"Open" use, in the context of easement law, "generally means that the use
is not secret." Id. at 121. The related term "notorious" generally means actual
knowledge on the part of the property owner or that the use is widely known.
Id. In addition,
A-1949-23 18 A use is adverse or hostile if a person uses the property of another under a claim of right, "pursued with an intent to claim against the true owner in such circumstances of notoriety that the owner will be aware of the fact and thus alerted to resist the acquisition of the right by claimant before the period of adverse possession has elapsed."
[Id. at 120 (quoting A.J. & J.O. Pilar, Inc. v. Lister Corp., 22 N.J. 75, 81 (1956)).]
Yet, the factual determinations of the trial court will be afforded deference if
supported by competent, relevant, and reasonably credible evidence.
Griepenburg, 220 N.J. at 254. Here, the trial court's conclusion that defendant,
in the alternative, obtained title through adverse possession is supported by the
evidence produced at trial. After the court outlined the adverse possession
requirements, the court determined all four elements had been met.
Although plaintiff argues that the trial court improperly placed a burden
on him rather than defendant, read in context, the court's statement instead states
that defendant had provided the court with evidence to satisfy its burden of proof
and that plaintiff was unable to challenge or present evidence to the contrary.
The court stated:
Here, [ ] plaintiff does not persuasively challenge the length of use of the strip by defendant. Plaintiff claims, however, that such uses have been with his permission, thereby defeating the application of adverse possession. As noted previously the fact of permissive use was not
A-1949-23 19 established by plaintiff through the evidence presented at trial.
This does not represent a burden shift. Instead, plaintiff's claim that he
granted permission to defendant was rejected by the court because it was neither
credible nor substantiated.
Likewise, plaintiff's contention that the court "glazed over the criteria for
adverse possession" and "re-packaged its conclusions regarding actual and
inquiry notice, . . . as findings that the defendant simultaneously proved the third
and fourth elements of adverse possession" is unmoving. In its decision, the
trial court stated that because it made a finding that defendant's actions put
plaintiff on actual and inquiry notice, that defendant had satisfied the adverse
and notorious prongs.
Moreover, the trial testimony showed that the defendant or its
predecessors had used the property for parking for more than thirty years. Toner
testified owners of Lot 3 had been using the Strip for about fifty years. The
plaintiff also testified that defendant's use extended beyond thirty years.
Therefore, the court's findings were supported by competent, relevant, and
credible evidence.
Affirmed.
A-1949-23 20