NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3070-22
CHALLENGER ACRES, LLC,
Plaintiff-Respondent,
v.
JAMES E. BAXTER and FELICE CARPENTER BAXTER,
Defendants-Appellants,
and
RICHARD STINSON and KATIE STINSON,
Defendants-Respondents. ____________________________
Argued October 16, 2024 – Decided November 7, 2024
Before Judges Chase and Vanek.
On appeal from the Superior Court of New Jersey, Chancery Division, Hunterdon County, Docket No. C-014039-21.
David B. Rubin argued the cause for appellants. Douglas A. Stevinson argued the cause for respondent Challenger Acres, LLC (Windels Marx Lane & Mittendorf, LLP, attorneys; Douglas A. Stevinson, of counsel and on the brief).
PER CURIAM
Defendants James E. Baxter and Felice Carpenter Baxter ("Baxters")
appeal from a March 16, 2023 order granting summary judgment to plaintiff
Challenger Acres LLC ("Challenger") and denying their cross-motion for
summary judgment. Challenger commenced this declaratory judgment action in
the Chancery Division alleging entitlement to an express easement to a public
street across nearby lots owned, respectively, by defendants and Richard Stinson
and Katie Stinson1 ("Stinsons"). We affirm.
I.
Challenger acquired Block 27, Lot 45 ("Challenger Lot") in East Amwell,
from Corwin Roth and Beth Roth in 2020. The Roths acquired the Challenger
Lot from Brian Trunell, Beth Roth's brother, in 2009. Trunell and Beth
purchased the lot together in 2003 from representatives of the Estate of Stephen
Kovac. Challenger's sole owner is Jamie Rowe. The Challenger Lot has no
1 The Stinsons do not take part in this appeal as cross-motions for summary judgment regarding their lot were denied as the Chancery Judge found there were material facts in dispute. A-3070-22 2 frontage to a public street and is completely landlocked. Rowe purchased the
Challenger Lot with the intention of demolishing the existing structures and
constructing a new single-family home to serve as his family's primary
residence.
The Baxters own Block 27, Lots 43 and 44 ("the Baxter Lots") in East
Amwell. Until 1966, the Baxter Lots consisted of two separate parcels referred
to as the North Baxter Lot and the South Baxter Lot. Access to or over the North
Baxter Lot, where the Baxters's house is located, is not the subject of this appeal.
The subject of this appeal is the South Baxter Parcel, first created in 1955, when
Frederick H. Totten and Madge E. Totten conveyed the land to Sanford L.
Hillpot and Margaret E. Hillpot ("Hillpot"). The South Baxter Parcel was
thereafter conveyed by Hillpot to Margaret P. Totten in 1965. In 1966, Margaret
Totten and Fred Totten, then owners of the South Baxter Lot, conveyed the lot
to Jan Liniewicz and Helen Liniewicz, who had recently acquired the North
Baxter Lot resulting in common ownership of the two parcels. The 1966 Totten-
to-Liniewicz deed to what was then the South Baxter Lot contained the
following recital:
Excepting and reserving from the above the rights of the public or owners of property lying westerly and southerly of Totten farm to use a roadway or driftway
A-3070-22 3 running thru this tract to reach their properties from the public road mentioned in the description above.
The land referred to above as "Totten farm" is currently owned by the
Stinsons ("Stinson Lot"). The parties have stipulated that the Challenger Lot is
the land situated to the west and south of the Totten farm, the Stinson Lot. The
Challenger Lot does not share a common border with the Baxter Lots. The
Stinson lot is situated between the Challenger Lot and the Baxter Lots.
From 1971 onward, the Baxter Lots changed ownership several times until
Baxter purchased them in 1990. The intervening deeds 2 included abridged
versions of the 1966 deed recital. By the time Baxter took ownership, the
reference to the driftway in his deed read, simply, "subject to the rights of others,
if any, in an old driftway crossing the southerly portion of the above-described
lot."
Prior Litigation.
In 2005, Trunell, Challenger Lot's predecessor in interest, filed a lawsuit
("Trunell suit") against Baxter and several nearby landowners, seeking a
"determination [that he] is entitled to a right of residential access to and from
his property over the lands of one or more of the [d]efendants." Trunell's
2 Both the North and South Lots have been transferred in the same deed since 1971. A-3070-22 4 complaint consisted of two counts. The first, against all parties but Baxter, pled
a claim for implied easement by necessity. The second, solely against Baxter,
sought an implied easement by prescription. In November of 2005, Trunell
voluntarily dismissed the first count, leaving only the implied easement by
prescription claim against Baxter. After both parties cross-moved for summary
judgment, the court granted Baxter summary judgment and dismissed Trunell 's
claim with prejudice.
Shortly afterward, Trunell reinstated his complaint against one of the
other defendants, Harrison3 ("Harrison Suit"), seeking an easement by necessity
over that property. Following trial, the court issued another opinion and order
rejecting Trunell's claims. The court found Trunell was not entitled to an
easement by necessity over Harrison's land. Addressing Trunell's claim for an
easement by prescription, the court found that Trunell also failed to offer the
court any evidence that he satisfied the prima facie elements to obtain that relief.
Trunell appealed that decision, which we affirmed. Trunell v. Trust for Hazel
Harrison, A-1066-08 (App. Div. Mar. 16, 2010).
Present Litigation.
3 Harrison owned an adjacent lot, neither the Baxter nor Stinson lot. A-3070-22 5 Challenger commenced this suit seeking declaratory judgment to confirm
its right to use the roadway to access its property based on the recorded land
filings in Hunterdon County. Challenger thereafter filed two amended
complaints to amend the parties. Baxter's answer asserted seven affirmative
defenses consisting of: (i) failure to state a claim upon which relief can be
granted; (ii) res judicata; (iii) collateral estoppel; (iv) entire controversy
doctrine; (v) laches; (vi) unclean hands; and asserted (vii) "damages" are barred
by the doctrine of waiver. The Baxters also pled a counterclaim for declaratory
judgment that Challenger has no right to use the roadway to cross their property.
The Stinsons also filed a responsive pleading wherein they repeated appellants'
defenses and added the additional defenses of abandonment, statute of
limitations and that the Stinson's property (Totten farm) is now encumbered by
a Deed of Easement and Farmland Preservation Agreement.
Following discovery, the parties filed cross-motions for summary
judgment. Challenger argued that its right to an express easement was explicitly
granted by way of a reservation in a deed to one of Baxter's predecessors in title.
Baxter disputed that claim and argued that Challenger's action was precluded by
res judicata, collateral estoppel, and the entire controversy doctrine because of
the earlier litigation brought by Trunell. Stinson argued there was no express
A-3070-22 6 grant over Stinson's lot and all claims were barred by the prior litigation. In an
order and statement of reasons issued March 16, 2023, the court found that
Challenger enjoyed an enforceable easement by reservation over Baxter 's
property based on the deed in Baxter's chain of title and granted summary
judgment against Baxter. 4
In issuing its decision, the trial court held that in regard to the Challenger
Lot, no easement appears in any of the deeds. Regarding the Baxter Lot, the
court recounted the language as originally written and as abridged. The trial
court, citing to Van Horn v. Harmony Sand and Gravel, Inc., 442 N.J. Super.
333, 345 (App. Div. 2015), held the deletion of the language and formation of
the abridged version was a "legal nullity because an easement is subject to
modification or termination only by agreement of the parties, or abandonment,
prescription, merger, estoppel, or renunciation by the holder of the easement."
Moreover, the court held that Baxter would have had notice due to the abridged
language, and therefore absent any defenses, Challenger had established the
existence of an express easement by reservation and "may traverse the South
Baxter lot to reach Plaintiff's Lot."
4 Summary judgment was denied against Stinson and that matter is still pending. A-3070-22 7 The trial court then analyzed Baxter's defenses of res judicata, collateral
estoppel, and the entire controversy doctrine. In denying res judicata, the court
held that the two causes of action and issues in the Trunell suit were not
"substantially similar or identical" and the theories advanced by Trunell did not
require "any analysis of the deed's language; in fact, these theories provide
redress where the express language of the deed does not contain an easement."
In contrast, the court determined the theory alleged by Challenger, "contends
that it was expressly reserved the right to use the land." The court further
determined that the relief was not substantially similar or identical because
Trunell had focused on an easement by prescription or necessity, and
Challenger, by aiming to enforce the express easement, was seeking "the exact
opposite." The trial court also made the same finding, that Trunell never raised
the theory he was entitled to access the property based on the language in the
1966 Totten-to-Liniewicz deed, when analyzing the factors and denying that
collateral estoppel applied.
Next, the trial court recounted that the entire controversy doctrine was an
equitable doctrine that was left to judicial discretion. The court noted it was
tasked with determining the fairness, at the expense of New Jersey's recording
statute, of applying the entire controversy doctrine to bar Challenger's claims.
A-3070-22 8 The court held it would be "unfair to deny plaintiff the ability to enforce the
clear and unambiguous easement reservation recorded in Baxter's chain of title
just because Trunell did not rely on an express easement theory in his earlier
litigation."
After the court issued its ruling in favor of Challenger, Baxter requested
that the court conduct further proceedings to determine what specific uses
Challenger may make of the easement. Challenger's counsel opposed that
request and submitted a proposed order memorializing the express easement and
directing the Clerk of Hunterdon County to record it. Although Baxter objected,
on June 5, 2023, the court entered Challenger's proposed order along with a
separate order deeming its summary judgment finding "final as to the Baxter
defendants as of today, so as to allow them to exercise any appellate rights they
deem appropriate."
This appeal follows.
II.
We review de novo orders granting summary judgment, applying the same
standard that governed the trial court's ruling. Samolyk v. Berthe, 251 N.J. 73,
78 (2022). Summary judgment will be granted if, viewing the competent
evidential materials in the light most favorable to the non-moving party, "there
A-3070-22 9 is no genuine issue of material fact and 'the moving party is entitled to a
judgment or order as a matter of law.'" Conley v. Guerrero, 228 N.J. 339, 346
(2017) (quoting Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016)). We are mindful "[a]n issue of fact is
genuine only if, considering the burden of persuasion at trial, the evidence
submitted by the parties on the motion, together with all legitimate inferences
therefrom favoring the non-moving party, would require submission of the issue
to the trier of fact." Rule 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 540 (1995).
III.
On appeal, the Baxters argue that the trial court erred by finding a
reservation of an easement in favor of strangers to the deed. Baxter also
contends Challenger's claim was precluded by res judicata, collateral estoppel
and the entire controversy doctrine. In the alternative, Baxter asks that the
matter be remanded for the trial court to consider relevant issues that it did not
address.
A.
An easement is a "nonpossessory incorporeal interest in another's
possessory estate in land, entitling the holder of the easement to make some use
A-3070-22 10 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
[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.
At common law, an easement in favor of a third person could not be
created by reservation or exception. What has come to be known as the
"stranger-to-the-deed" rule presumes that deeds conveying land are between a
grantor and a grantee, and views with distrust any attempt to use the deed to
create a property interest in any other party, i.e., a "stranger." Conway v. Miller,
232 P.3d 390, 397 (2010). We have already considered and rejected the common
law approach in Borough of Wildwood Crest v. Smith, 210 N.J. Super 127, 144
(App. Div. 1986), in favor of the approach espoused in the Restatement 3rd of
Property whereby the court derives the intention of the grantor using the words
A-3070-22 11 used and attending circumstances. We see no reason to reverse course and return
to the common law stranger-to-the deed rule.
B.
Baxter argues on appeal that the trial court erred in not precluding
Challenger's claims under res judicata, collateral estoppel and the entire
controversy doctrine by virtue of the 2006 and 2008 judgments entered in the
Trunell litigation. We review trial courts' decisions to invoke judicial estoppel
for an abuse of discretion, Terranova v. GE Pension Tr., 457 N.J. Super. 404,
410 (App. Div. 2019); In re Declaratory Judgment Actions Filed by Various
Muns., 446 N.J. Super. 259, 291 (App. Div. 2016), and review de novo a
decision on res judicata and collateral estoppel. Selective Ins. Co. v. McAllister,
327 N.J. Super. 168, 173 (App. Div. 2000).
Res Judicata.
"Res judicata prevents relitigation of a controversy between the parties."
Brookshire Equities, LLC v. Montaquiza, 346 N.J. Super. 310, 318 (App. Div.
2002). "The rationale underlying res judicata recognizes that fairness to the
defendant and sound judicial administration require a definite end to litigation. "
Velasquez v. Franz, 123 N.J. 498, 505 (1991) (citing Restatement (Second) of
Judgments § 19 cmt. a (Am. L. Inst. 1982)) (emphasis omitted).
A-3070-22 12 For res judicata to apply, there must be "(1) a final judgment by a court of
competent jurisdiction, (2) identity of issues, (3) identity of parties, and (4)
identity of the cause of action." Brookshire Equities, 346 N.J. Super. at 318.
Application of the doctrine is "a question of law 'to be determined by a judge in
the second proceeding after weighing the appropriate factors bearing upon the
issue.'" Selective Ins. Co., 327 N.J. Super. at 173 (quoting Colucci v. Thomas
Nicol Asphalt Co., 194 N.J. Super. 510, 518 (App. Div. 1984)).
The trial judge found no identity of issues nor causes of action because
the Trunell litigation "focused on plaintiff's purported right to enter the land by
prescription or by necessity[,]" not express language contained in a deed. The
trial judge also found that the requisite final adjudication was lacking because
the portion of the first trial judge's opinion addressing Trunell's express
easement claim was merely dicta "based on incomplete facts, on theories not
raised in the complaint," and the fact that the 1966 Totten-to-Liniewicz deed
was never presented to that court.
Collateral Estoppel.
"The doctrine of collateral estoppel is a branch of the broader law of res
judicata which bars relitigation of any issue actually determined in a prior action
generally between the same parties and their privies involving a different claim
A-3070-22 13 or cause of action." Figueroa v. Hartford Ins. Co., 241 N.J. Super. 578, 584
(App. Div. 1990) (emphasis omitted). For the doctrine to apply, the party
asserting the bar must show:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[In the Matter of the Estate of Dawson, 136 N.J. 1, 20 (1994) (citations omitted).]
It is equally clear that "even [when] these requirements are met, the doctrine,
which has its roots in equity, will not be applied when it is unfair to do so." Pace
v. Kuchinsky, 347 N.J. Super 202, 215 (App Div. 2002).
"Although collateral estoppel overlaps with and is closely related to res
judicata, the distinguishing feature of collateral estoppel is that it alone bars
relitigation of issues in suits that arise from different causes of action."
Selective Ins. Co., 327 N.J. Super. at 173 (citing United Rental Equip. Co. v.
Aetna Life and Cas. Ins. Co., 74 N.J. 92, 101 (1977)) (emphasis omitted).
Indeed, collateral estoppel "requires a similar, yet less demanding, analysis than
A-3070-22 14 res judicata or claim preclusion." First Union Nat'l Bank v. Penn Salem Marina,
Inc., 190 N.J. 342, 352 (2007).
"In brief, [res judicata] applies to all claims growing out of the same facts
that could have been brought, but [collateral estoppel] applies only to those
issues that were actually litigated and decided." Watkins v. Resorts Int'l Hotel
& Casino, 124 N.J. 398, 422 (1991). Under collateral estoppel, then, "[w]hen
an issue of fact or law is actually litigated and determined by a valid and final
judgment, and the determination is essential to the judgment, the determination
is conclusive in a subsequent action between the parties, whether on the same or
a different claim." Ibid. (quoting Restatement (Second) of Judgments § 27).
The doctrine "is not subject to rigid application but may be applied after a careful
assessment and consideration of all relevant factors both in support of and
against its application." Selective Ins. Co., 327 N.J. Super. at 174; see also
Kuchinsky, 347 N.J. Super. at 215 (reasoning collateral estoppel "has its roots
in equity, [and] will not be applied when it is unfair to do so").
Entire Controversy Doctrine.
The entire controversy doctrine is an equitable doctrine left to the sound
discretion of the court based on the factual circumstances of individual cases.
See Bank Leumi USA v. Kloss, 243 N.J. 218, 227 (2020). "The entire
A-3070-22 15 controversy doctrine generally requires parties to an action to raise all
transactionally related claims in that same action." Largoza v. FKM Real Estate
Holdings, Inc., 474 N.J. Super. 61, 79 (App. Div. 2022); Carrington Mortg.
Servs., LLC v. Moore, 464 N.J. Super. 59, 67 (App. Div. 2020); see also Pressler
& Verniero, Current N.J. Rules, cmt. 1 on R. 4:30A (2023). Specifically, under
Rule 4:30A "[n]on-joinder of claims required to be joined by the entire
controversy doctrine shall result in the preclusion of the omitted claims to the
extent required by the entire controversy doctrine . . . ."
Even where the doctrine is otherwise applicable, a court has the discretion
not to apply it when doing so would be inequitable on the facts of a particular
case, or it would not promote the doctrine's underlying goals. Carrington Mortg.
Services, LLC, 464 N.J. Super. at 68. The trial court felt it would be inequitable
to apply it in this case.
In Fisher v. Yates, another case involving an owner of landlocked property
seeking an access easement across a neighbor's land, we held the recording
statute, which also put Baxter on notice of the 1966 deed in his chain of title,
put the plaintiff in Fisher on notice of recorded instruments in his neighbor's
chain of title. 270 N.J. Super. 458, 471 (App. Div. 1994). Thus, when Trunell
A-3070-22 16 purchased the Challenger Lot, as a matter of law he had notice of the 1966
Totten-to-Liniewicz deed in Baxter's chain of title.
C.
Baxter contends the matter should be remanded to the trial court to address
what uses and activities are permissible before Challenger is permitted to move
forward with whatever plans it may have since the cross-motions for summary
judgment focused on the abstract question whether the 1966 Totten-to-Liniewicz
deed gave Challenger legally enforceable easement rights across Baxter's
property. Baxter further posits the litigation to that point did not address what
Challenger could do with the easement if found to exist. We "will decline to
consider questions 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. Co., 62 N.J. 229, 234 (1973)
(quoting Reynolds Offset Co., Inc. v. Summer, 58 N.J. Super. 542, 548 (App.
Div. 1959)). Since this was not pled below and was only raised to the trial court
by letter after the court made its final determination that Challenger had access
over Baxter's property, we decline to remand the matter.
IV.
A-3070-22 17 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.
A-3070-22 18