ANDREW T. WOLFE, ETC. VS. TOWNSHIP OF EAST AMWELL (L-0054-17, HUNTERDON COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 30, 2019
• Docket: A-1333-17T4
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1333-17T4

ANDREW T. WOLFE, AS EXECUTOR OF THE ESTATE OF MICHAEL E. KANEFSKY,

Plaintiff-Respondent,

v.

TOWNSHIP OF EAST AMWELL and CYNTHIA PELLICCIA,

Defendants-Respondents,

and

KEVIN T. LIPKA,

Defendant-Appellant. _______________________________

Argued April 30, 2019 – Decided September 30, 2019

Before Judges Yannotti, Rothstadt, and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-0054-17.

Walter Michael Luers argued the cause for appellant. Daniel L. Schmutter argued the cause for respondent Andrew T. Wolfe, as Executor of the Estate of Michael E. Kanefsky (Hartman & Winnicki, PC, attorneys; Daniel L. Schmutter, of counsel and on the brief; Steven B. Gladis, on the brief).

Tara Ann St. Angelo argued the cause for respondent Township of East Amwell (Gebhardt & Kiefer, PC, attorneys; Tara Ann St. Angelo, on the brief).

Philip B. Vinick, attorney for respondent Cynthia Pelliccia, joins in the briefs of respondents Andrew T. Wolfe, as Executor of the Estate of Michael E. Kanefsky and Township of East Amwell.

The opinion of the court was delivered by

ROTHSTADT, J.A.D.

Defendant Kevin T. Lipka appeals from the Law Division's October 4,

2017 order denying his motion for reconsideration of an August 4, 2017 order. 1

The August 4 order resolved a dispute between Lipka, plaintiff Andrew T.

Wolfe, as Executor of the Estate of Michael E. Kanefsky, and defendant Cynthia

Pelliccia, a beneficiary of the Estate, over funds being held by defendant,

Township of East Amwell relating to real property owned by Lipka and

Kanefsky. Judge Michael F. O'Neill denied Lipka's motion because Lipka failed

1 Plaintiff's brief identifies a June 28, 2017 order, the August 4, 2017 order, and a December 1, 2017 order as the orders from which plaintiff appeals. However, plaintiff's Notice of Appeal (NOA) only identifies the October 4, 2017 order as the subject of the appeal. A-1333-17T4 2 to meet his burden on reconsideration as explained in the judge's Statement of

Reasons that accompanied his October 4, 2017 order. We affirm because Lipka

never presented to the judge three of the four arguments he now raises on appeal

and he failed to brief the issue of why reconsideration was not properly denied.

Despite those omissions, we also conclude the judge's order was correct,

substantially for the reasons stated by Judge O'Neill.

The material facts taken from the motion record relating to the August 4,

2017 order are generally undisputed. Lipka and Kanefsky jointly owned real

property in East Amwell. In 2007, they wished to subdivide the property for

development and secured final subdivision approval from the East Amwell

Planning Board (Planning Board). In 2009, the Planning Board extended the

approval through June 20, 2010.

Also in 2009, Lipka and Kanefsky entered into a Developer's Agreement

with East Amwell that required them to post approximately $71,400 toward the

Township's professional fees and as a performance guarantee. Lipka and

Kanefsky also agreed to complete "[a]ll of the work and improvements . . . no

later than September 1, 2011," but they reserved the right to seek further

extensions from the Planning Board. However, by the time Kanefsky passed

away in 2013, the work was incomplete and neither Lipka nor Kanefsky sought

A-1333-17T4 3 any extensions. After Kanefsky passed away, the Estate conveyed his one-half

interest in the property to his beneficiary, Pelliccia, in 2015.

On June 10, 2015, Pelliccia filed a complaint for partition against Lipka,

seeking an order for the sale of the property and distribution of the proceeds to

her and Lipka, in accordance with their property interests. Lipka filed an answer

and counterclaim, seeking partition and reimbursement for one-half of the

property's quarterly real estate taxes that he had paid since June 22, 2012, plus

interest. He later filed a third party complaint against Wolfe and the Estate,

seeking reimbursement of one-half of the real estate taxes for the property he

had paid from June 22, 2012 to April 9, 2015, totaling $21,567.95, plus interest.

In December 2015, a different judge appointed a real estate broker in

anticipation of ordering the sale of the property. On March 30, 2016, the parties

resolved the matter through a consent order in which Lipka agreed to continue

to pay the real estate taxes due on the property in full. It further provided that

upon the sale of the property, Lipka would be reimbursed from Pelliccia's 50%

share of the sale proceeds for the real estate taxes he paid on behalf of Kanefsky

and, after his death, on behalf of Pelliccia. Lipka and Pelliccia further agreed

to dismiss their pleadings with prejudice and they agreed to "release each other

A-1333-17T4 4 from all rights, claims[,] and actions which each party has or may have as of the

date hereof." Lipka, the Estate, and Wolfe agreed to the same mutual release.

Later in 2016, the Estate discovered that East Amwell still held the escrow

payment that was made pursuant to the 2009 Developer's Agreement. Upon

discovering the funds, the Estate requested that its share of the deposit be

released to the Estate. The Township responded stating that before it could

release the funds it required an agreement between Pelliccia, Lipka, and the

Estate acknowledging that the Subdivision Approval and Developer's

Agreement lapsed, and that the owners abandoned their plan to develop the

property. It also required the weeds along the sidewalk of the property be

trimmed and maintained. East Amwell's response included a "form of agreement

that would satisfy the Township's requirements to proceed with release of the

funds."

Pelliccia signed the Township's proposed agreement upon receipt. The

Estate made several unsuccessful efforts to contact Lipka to discuss both the

agreement and obtaining the release of the escrowed funds. Those efforts

included leaving voicemails, sending emails, and sending regular and certified

mail, with a copy of the proposed agreement enclosed. According to Lipka, he

A-1333-17T4 5 never received any emails, regular mail, or certified mail, and his phone did not

take voicemails.

Having not received any response from Lipka, on February 10, 2017, the

Estate filed a verified complaint in lieu of prerogative writs against the

Township, Lipka, and Pelliccia, seeking the following relief: (1) a declaration

that the Subdivision Approval was invalid because it had expired and/or been

abandoned by the parties; (2) an order for the Township to release the escrowed

funds to the Estate; (3) an order allowing the Estate's counsel to hold Lipka's

share of the escrowed funds in a trust account, subject to reimbursement; ( 4) an

order for Lipka to pay for one-half of the property's weeding expense; and (5)

an order for Lipka to pay the Estate's attorney's fees from his share of the

escrowed funds. The Estate later filed a motion to proceed summarily under

Rule 4:67-1(b). On May 25, 2017, Lipka filed an answer and counterclaim,

arguing that a declaration that the Subdivision Approval had expired would

violate the Permit Extension Act of 2008, N.J.S.A. 40:55D-130 to -136.6, and

have a negative impact on the value of the property. On June 28, 2017, Judge

O'Neill granted the Estate's motion to proceed in a summary matter and set a

trial date of July 11, 2017.

A-1333-17T4 6 On July 5, 2017, Pelliccia's counsel submitted a certification of attorney's

services, requesting $5625 in attorney's fees and costs. Two days later, the

Estate's counsel filed a certification of services in support of the Estate's request

for attorney's fees and costs in the amount of $20,869.63. East Amwell also

requested a fee award of $3283.50. Lipka opposed those requests.

At the July 11, 2017 trial, Judge O'Neill considered the parties' oral

arguments. In his August 4, 2017 order, the judge: (1) determined the

Subdivision Approval was "no longer valid due to expiration and abandonment

by the aforesaid property owners;" (2) ordered the release of the escrowed funds,

with Lipka's share to be held by the township in a trust account; (3) awarded

attorney's fees and costs to the Estate in the amount of $13,562.63, to Pelliccia

in the amount of $4125, and to the Township in the amount of $3283.50, all to

be paid from Lipka's share of the escrowed funds; (4) ordered Lipka to "provide

for the ongoing maintenance of the property pending its sale, subject to . . .

reimbursement of one-half of such expenses from . . . Pelliccia upon the sale of

the property"; and (5) required Lipka to maintain upkeep of the property until

its sale.

The judge stated his supporting findings of fact and conclusions of law in

a comprehensive twenty-page Statement of Reasons accompanying his order.

A-1333-17T4 7 Initially, the judge rejected Lipka's contention that a factual dispute existed

about the development project. As the judge described, Lipka believed that if

he and Kanefsky failed to complete the project, East Amwell was obligated to

complete the work using the funds held in escrow. The judge disagreed and

observed that the agreement "merely gave the Township the discretion to

undertake improvements should the developers fail to do so."

Judge O'Neill also noted that under N.J.S.A. 40:55D-136.3, the

Subdivision Approval "could have been extended for no more than six months

after December 31, 2015 – or until June 30, 2016." Accordingly, he concluded

that "[u]nder a straightforward interpretation of the Permit Extension Act, the

approvals under review [had] expired and [were] no longer valid." Judge O'Neill

further determined that, in light of Lipka's agreement under the consent order to

pay 100% of the real estate taxes, subject to 50% reimbursement after the sale

of the property, it was "reasonable and equitable to require [him] to provide for

such maintenance of the property pending its sale." With respect to the Estate 's,

the Township's, and Pelliccia's requests for attorney's fees and costs out of a

fund in court, the judge determined that awarding fees was appropriate because

Lipka continued "to insist upon positions that [were] neither factually nor legally

supportable."

A-1333-17T4 8 Lipka filed his motion for reconsideration that the court denied on October

4, 2017.2 In another written Statement of Reasons, Judge O'Neill quoted D'Atria

v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and found Lipka failed to

demonstrate that the judge "based [his] decision 'upon a palpably incorrect or

irrational basis,' or that [he] 'did not consider, or failed to appreciate the

significance of probative competent evidence.'" The judge concluded Lipka's

motion papers were "merely a rehashing of the arguments presented to the court

during the earlier proceedings."

The Estate later filed a motion requesting additional attorney's fees in the

amount of $2534.72 for those incurred to defend against Lipka's motion for

reconsideration, and for frivolous litigation, under N.J.S.A. 2A:15-59.1. On

December 19, 2017, Judge O'Neill granted the motion, directing that $2534.72

in attorney's fees and costs be deducted from Lipka's share of the escrowed funds

held by East Amwell. The judge explained that the Estate was entitled to the

fees under the "Fund in Court" rule, Rule 4:42-9(2), as well as the frivolous

litigation statute.

2 Contrary to Rule 2:6-1, Lipka did not include copies of his motion or any supporting papers that were filed with his motion or in opposition by any other party. A-1333-17T4 9 Prior to the judge's entry of the order awarding counsel fees, on November

17, 2019, Lipka filed this appeal, but only from the court's October 4, 2017

order. He never amended his NOA to include any of the judge's prior orders or

the December 19, 2017 order.

On appeal, Lipka makes four arguments, three of which he never raised

before Judge O'Neill. Specifically, he contends for the first time on appeal that

the Estate's action seeking the release of the funds was barred by both the

consent order entered in the earlier action and by the Entire Controversy

Doctrine. He also contends that the judge's award of counsel fees under the

"Fund in Court" exception to the rule that litigants should bear their own costs

and fees was improper. Finally, he contends that he "never abandoned the

[Developer's] Agreement," as he had argued in opposition in the trial court.

At the outset, we again observe that Lipka never appealed from the judge's

August 4, 2017, June 28, 2017, or December 17, 2017 orders. We will not

consider any challenges related to an order not identified in a NOA or in an

Appellate Case Information Statement (CIS). See Campagna ex rel. Greco v.

Am. Cyanamid Co., 337 N.J. Super. 530, 550 (App. Div. 2001) (refusing to

consider order not listed in notice of appeal); Sikes v. Twp. of Rockaway, 269

N.J. Super. 463, 465-66 (App. Div. 1994), aff'd o.b., 138 N.J. 41 (1994) (issue

A-1333-17T4 10 raised in brief but not designated in notice of appeal not properly before court).

Our withholding review where an order is not identified applies to orders

underlying an order denying a motion for reconsideration. "[I]f the notice

designates only the order entered on a motion for reconsideration, it is only that

proceeding and not the order that generated the reconsideration motion that may

be reviewed." Pressler & Verniero, Current N.J. Court Rules, cmt. 6.1 on R.

2:5-1 (2019); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455,

461 (App. Div. 2002) (reviewing only the court's denial of the plaintiff's motion

for reconsideration, and not the court's previous order granting summary

judgment, because only the order denying reconsideration was designated in the

NOA).3

Even if Lipka properly identified the August 4, 2017 order in his NOA,

we would still not consider his arguments that were not raised before the trial

judge. "It is a well-settled principle that [we] will decline to consider questions

3 If Lipka's CIS identified the August 4, 2017 order, we would consider his appeal to be from that order as well. However, his CIS only incorrectly stated that "[p]laintiff was granted summary judgment[, Lipka] filed a motion for leave to file an[] interlocutory appeal[, and] [t]hat was denied." We do not consider his references as sufficient compliance with the requirements of Rule 2:5-1(f). See Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 142 (2016) (stating an order "clearly identified . . . in [a] Case Information Statement submitted with [a] Notice of Appeal" is deemed properly before the court for review). A-1333-17T4 11 or issues not properly presented to the trial court when an opportunity for such

a presentation is available 'unless the questions so raised on appeal go to the

jurisdiction of the trial court or concern matters of great public interest.'" Nieder

v. Royal Indem. Ins., 62 N.J. 229, 234 (1973) (quoting Reynold Offset Co. v.

Summer, 58 N.J. Super. 542, 548 (App. Div. 1959)). None of these exceptions

apply to Lipka's arguments.

We also observe that Lipka's brief does not mention the denial of

reconsideration nor does it contain any arguments relating to that order.

Moreover, as already noted in his appendix, Lipka did not include the motion or

any of the papers that he or the other parties filed. Under these circumstances,

Lipka's challenge to the only order under appeal is deemed to have been waived.

See R. 2:6-2(a)(6); N.J. Dep't of Envtl. Prot. v. Alloway Twp., 438 N.J. Super.

501, 505 n.2 (App. Div. 2015); ("An issue that is not briefed is deemed waived

upon appeal"); Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div.

2011) (Finding that appellant waived his appeal from an order denying his

motion for reconsideration where the issue was not addressed in his merits

brief).

In any event, even if we consider Lipka's arguments as presented, we

conclude that they lack sufficient merit to warrant discussion in a written

A-1333-17T4 12 opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons expressed

by Judge O'Neill in his well-reasoned, comprehensive written decisions.

Affirmed.

A-1333-17T4 13