NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3610-18T1
BARBARA H. ABROM,
Plaintiff-Respondent,
v.
PHILIP PICINICH and DONNA PICINICH,
Defendants-Appellants.
Submitted March 26, 2020 – Decided July 10, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C- 000155-18.
Law Offices of Vincent J. La Paglia, attorneys for appellants (Jeff Thakker, of counsel; Vincent J. La Paglia, on the briefs).
Michael J. Sprague, attorney for respondent.
PER CURIAM Defendants Philip Picinich and Donna Picinich appeal the April 11, 2019
grant of summary judgment to plaintiff Barbara H. Abrom. The parties are
neighbors. For the reasons that follow, we affirm.
The dispute concerns a 1983 recorded easement plaintiff and her late
husband conveyed to the Picinichs' predecessors in title. The deed's key
provision states:
Subject to an easement covering the premises described below, giving the grantees herein, their assigns and successors in interest, the exclusive right of ingress and egress over an existing driveway located on the adjoining premises, being 17 Ridge Road. This easement is given so the grantees and their successors will be able to use their rear yard for parking. This easement will expire by its own terms if the grantees or their successors alter the grade of the purchased premises, allowing them access to the rear yard.
At some unknown time after the conveyance, a combination concrete/wood
fence was erected around the Picinichs' yard, basically a wood fence with a
concrete foundation. The back yard is effectively unusable for parking unless
the fencing is removed. In their pleadings, the Picinichs stated they did not
intend to remove the fencing.
The following are undisputed facts. Between 1995 and 2000, the Picinichs
parked their vehicles in the street. From 2000 to 2009, they rented a space in
the garage behind Abrom's home. They obtained a permit to construct a parking
A-3610-18T1 2 space alongside their home from the municipality sometime before or in 2009.
The parking space is only accessible over Abrom's driveway, in other words,
over the easement. From 2009 to 2017, the Picinichs parked one vehicle in their
parking space, and one on the street.
When the Picinichs' children reached driving age, they applied to the
municipality for permits to build three extra spaces alongside their home, which
would also be accessible only along the easement—Abrom's driveway. Abrom
threatened legal action upon being informed of the issuance of the permit. The
Picinichs nonetheless proceeded with construction. This litigation followed.
In competing certifications supporting and opposing summary judgment,
the Picinichs' seller, grantee on the original conveyance, certified that the parties
did not intend to limit the easement access in order to reach parking only in the
rear yard. The seller believed the phrase "use their rear yard for parking"
referred to building a garage in the back yard. The Picinichs certified that since
it is practically impossible to access the rear yard of their house from the street
without using Abrom's driveway,1 and their rear yard is fenced, parking can only
1 It is undisputed that there is a utility pole and large tree in the Picinichs' front yard preventing them from building their own driveway. A-3610-18T1 3 occur on the side, and therefore the easement was intended to allow for side yard
parking.
Abrom certified that at the time the easement was created, no
concrete/wood fence blocked the Picinichs' rear yard. At the time of the original
sale, Abrom testified she understood parking for the Picinichs' home would be
in their rear yard, but accessible over her driveway.
The judge concluded "the explicit language of the easement clearly states
its intent: the easement 'is given so that grantees and their successors will be
able to use their rear yard for parking.'" He interpreted the express language to
"unambiguously" provide "for access to parking in the rear yard of the property."
Because the language was so clear, he considered the certification by the
Picinichs' predecessor in title to have been irrelevant.
The judge further found that the easement had been "voluntarily
abandoned" because of the Picinichs' "intent to never make use of said easement
going forward." The fence around the rear yard made it clear that the driveway
would never be used to access the yard. The judge viewed the construction of
the fence to express an intent to terminate the easement because its original
purpose was no longer feasible. That the Picinichs did not know who or when
that structure was created was in his opinion irrelevant. The judge denied
A-3610-18T1 4 Abrom's claim for fees and costs for the Picinichs' trespass. He enjoined the
Picinichs' further use of Abrom's driveway. The Picinichs' answer to the
complaint includes as a third affirmative defense "the doctrines of estoppel,
laches, and waiver." The judge did not discuss the equitable affirmative
defenses because they were not raised in the moving papers on the motion for
summary judgment or during oral argument. 2
I.
We review a trial court's grant of summary judgment de novo. Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We employ the same
standard as the motion judge. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
Summary judgment is proper when "there is no genuine issue as to any material
fact challenged and . . . the moving party is entitled to a judgment . . . as a matter
of law." R. 4:46-2(c). The trial court is required to "consider whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, [were] sufficient to permit a rational
2 The record we have been provided makes no mention of the defense except in the answer. It is counsel's responsibility to draw our attention to materials in the record supporting arguments on appeal. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). A-3610-18T1 5 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).
II.
For easements, "[t]he primary rule of construction is that the intent of the
conveyor is normally determined by the language of the conveyance read as an
entirety and in the light of the surrounding circumstances." Hammett v.
Rosensohn, 26 N.J. 415, 423 (1958). When the language of the easement is
unambiguous and the intent of the parties is evident, the language governs.
Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). However, "when
there is any ambiguity or uncertainty about an easement grant, the surrounding
circumstances, including the physical conditions and character of the servient
tenement, and the requirements of the grantee, play a significant role in the
determination of the controlling intent." Ibid.
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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-3610-18T1
BARBARA H. ABROM,
Plaintiff-Respondent,
v.
PHILIP PICINICH and DONNA PICINICH,
Defendants-Appellants.
Submitted March 26, 2020 – Decided July 10, 2020
Before Judges Alvarez and Suter.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C- 000155-18.
Law Offices of Vincent J. La Paglia, attorneys for appellants (Jeff Thakker, of counsel; Vincent J. La Paglia, on the briefs).
Michael J. Sprague, attorney for respondent.
PER CURIAM Defendants Philip Picinich and Donna Picinich appeal the April 11, 2019
grant of summary judgment to plaintiff Barbara H. Abrom. The parties are
neighbors. For the reasons that follow, we affirm.
The dispute concerns a 1983 recorded easement plaintiff and her late
husband conveyed to the Picinichs' predecessors in title. The deed's key
provision states:
Subject to an easement covering the premises described below, giving the grantees herein, their assigns and successors in interest, the exclusive right of ingress and egress over an existing driveway located on the adjoining premises, being 17 Ridge Road. This easement is given so the grantees and their successors will be able to use their rear yard for parking. This easement will expire by its own terms if the grantees or their successors alter the grade of the purchased premises, allowing them access to the rear yard.
At some unknown time after the conveyance, a combination concrete/wood
fence was erected around the Picinichs' yard, basically a wood fence with a
concrete foundation. The back yard is effectively unusable for parking unless
the fencing is removed. In their pleadings, the Picinichs stated they did not
intend to remove the fencing.
The following are undisputed facts. Between 1995 and 2000, the Picinichs
parked their vehicles in the street. From 2000 to 2009, they rented a space in
the garage behind Abrom's home. They obtained a permit to construct a parking
A-3610-18T1 2 space alongside their home from the municipality sometime before or in 2009.
The parking space is only accessible over Abrom's driveway, in other words,
over the easement. From 2009 to 2017, the Picinichs parked one vehicle in their
parking space, and one on the street.
When the Picinichs' children reached driving age, they applied to the
municipality for permits to build three extra spaces alongside their home, which
would also be accessible only along the easement—Abrom's driveway. Abrom
threatened legal action upon being informed of the issuance of the permit. The
Picinichs nonetheless proceeded with construction. This litigation followed.
In competing certifications supporting and opposing summary judgment,
the Picinichs' seller, grantee on the original conveyance, certified that the parties
did not intend to limit the easement access in order to reach parking only in the
rear yard. The seller believed the phrase "use their rear yard for parking"
referred to building a garage in the back yard. The Picinichs certified that since
it is practically impossible to access the rear yard of their house from the street
without using Abrom's driveway,1 and their rear yard is fenced, parking can only
1 It is undisputed that there is a utility pole and large tree in the Picinichs' front yard preventing them from building their own driveway. A-3610-18T1 3 occur on the side, and therefore the easement was intended to allow for side yard
parking.
Abrom certified that at the time the easement was created, no
concrete/wood fence blocked the Picinichs' rear yard. At the time of the original
sale, Abrom testified she understood parking for the Picinichs' home would be
in their rear yard, but accessible over her driveway.
The judge concluded "the explicit language of the easement clearly states
its intent: the easement 'is given so that grantees and their successors will be
able to use their rear yard for parking.'" He interpreted the express language to
"unambiguously" provide "for access to parking in the rear yard of the property."
Because the language was so clear, he considered the certification by the
Picinichs' predecessor in title to have been irrelevant.
The judge further found that the easement had been "voluntarily
abandoned" because of the Picinichs' "intent to never make use of said easement
going forward." The fence around the rear yard made it clear that the driveway
would never be used to access the yard. The judge viewed the construction of
the fence to express an intent to terminate the easement because its original
purpose was no longer feasible. That the Picinichs did not know who or when
that structure was created was in his opinion irrelevant. The judge denied
A-3610-18T1 4 Abrom's claim for fees and costs for the Picinichs' trespass. He enjoined the
Picinichs' further use of Abrom's driveway. The Picinichs' answer to the
complaint includes as a third affirmative defense "the doctrines of estoppel,
laches, and waiver." The judge did not discuss the equitable affirmative
defenses because they were not raised in the moving papers on the motion for
summary judgment or during oral argument. 2
I.
We review a trial court's grant of summary judgment de novo. Davis v.
Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We employ the same
standard as the motion judge. Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).
Summary judgment is proper when "there is no genuine issue as to any material
fact challenged and . . . the moving party is entitled to a judgment . . . as a matter
of law." R. 4:46-2(c). The trial court is required to "consider whether the
competent evidential materials presented, when viewed in the light most
favorable to the non-moving party, [were] sufficient to permit a rational
2 The record we have been provided makes no mention of the defense except in the answer. It is counsel's responsibility to draw our attention to materials in the record supporting arguments on appeal. State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). A-3610-18T1 5 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).
II.
For easements, "[t]he primary rule of construction is that the intent of the
conveyor is normally determined by the language of the conveyance read as an
entirety and in the light of the surrounding circumstances." Hammett v.
Rosensohn, 26 N.J. 415, 423 (1958). When the language of the easement is
unambiguous and the intent of the parties is evident, the language governs.
Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). However, "when
there is any ambiguity or uncertainty about an easement grant, the surrounding
circumstances, including the physical conditions and character of the servient
tenement, and the requirements of the grantee, play a significant role in the
determination of the controlling intent." Ibid.
The language of the easement is clear and unambiguous, making the intent
of the parties evident. See Hammett, 26 N.J. at 423; Hyland, 44 N.J. Super. at
187. Rear yard does not mean side yard—it means the driveway was available
for travel so that the grantee could access parking in back of his structure. Any
effort to cast a different light on the language is simply unconvincing. For the
reasons stated by the judge, the interpretation is sound.
A-3610-18T1 6 The judge terminated the easement as "abandoned" because of the
concrete/wood structure that for years has made parking in the rear yard a
practical impossibility. The use of the driveway in order to access side yard
parking was never contemplated by the grantors. That language is found
nowhere in the deed.
III.
In various points, the Picinichs also contend the judge's decision did not
address defenses raised in the answer, including laches and unclean hands.
Unfortunately, other than in the answer, those issues were never argued. We see
nothing regarding those defenses in the record on appeal except in the Picinichs'
answer.
In a somewhat different case involving a statute of limitations defense, the
New Jersey Supreme Court stated that an initial pleading did not suffice to
preserve a defense during litigation. Williams v. Bell Tel. Labs., Inc., 132 N.J.
109, 118-20 (1993). The Court said a defendant had waived a statute of
limitations defense "by its failure to assert that defense at any stage of the
proceedings after pleading the [defense] in its [a]nswer." Id. at 118. "The mere
one time mention of the statute in [defendant's] [a]nswer . . . should not serve to
preserve that otherwise-unasserted defense through the entire three-and-one-
A-3610-18T1 7 half-year span of the litigation . . . ." Id. at 119-20. Here, the duration of the
litigation was substantially shorter than in Williams—however, the principle is
the same. Failure to raise the issues during the defense of a motion for summary
judgment results in a failure to preserve a defense.
Furthermore, "jurisdiction of appellate courts rightly is bounded by the
proofs and objections critically explored on the record before the trial court by
the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). We rarely
decide issues not presented to a trial judge when the opportunity was available.
See State v. Witt, 223 N.J. 409, 419 (2015). Thus, we do not consider defenses
raised for the first time on appeal.
Affirmed.
A-3610-18T1 8