NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2551-22
JOHN AND LORI WESTERHOLD,
Plaintiffs-Respondents/ Cross-Appellants,
v.
NORMANDY BEACH ASSOCIATES, INC. and NORMANDY BEACH IMPROVEMENT ASSOCIATION,
Defendants-Appellants/ Cross-Respondents,
and
TOWNSHIP OF BRICK, NEW JERSEY,
Defendant. ___________________________
Argued November 13, 2024 – Decided January 16, 2025
Before Judges Gilson, Firko, and Bishop-Thompson. On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C- 000037-20.
H. Lockwood Miller, III argued the cause for appellants/cross-respondents (Goldberg Segalla LLP, attorneys; Daniel L. Klein, of counsel and on the briefs; H. Lockwood Miller, III, on the briefs).
Mark J. Oberstaedt argued the cause for respondents/cross-appellants (Archer & Greiner, PC, attorneys; Mark J. Oberstaedt and Alexis M. Way, on the briefs).
PER CURIAM
This appeal involves disputes between plaintiffs, John and Lori
Westerhold, who own beachfront property, and two beach associations,
defendants Normandy Beach Associates, Inc. (NBA) and Normandy Beach
Improvement Association (NBIA). The central dispute is whether plaintiffs
have a right to walk directly from their property across NBA's property to access
the ocean. NBA and NBIA appeal from an order granting partial summary
judgment to plaintiffs and finding that plaintiffs have an implied easement to
walk across NBA's property and dunes that have been built on the property.
Because there are disputed issues of material fact concerning whether plaintiffs
have an implied easement, we reverse, vacate the order granting partial summary
judgment to plaintiffs, and remand the easement issues for further proceedings.
A-2551-22 2 Plaintiffs cross-appeal from an order denying their motion to amend their
complaint to add an individual defendant, E. Stephen Kirby, and assert claims
of malicious prosecution and liable per se against Kirby. They also cross-appeal
from an order that effectively dismissed their claims for attorneys' fees and
punitive damages. We affirm those orders because plaintiffs do not have
evidence to support claims of malicious prosecution or liable per se against
Kirby. Plaintiffs also have no right to attorneys' fees or punitive damages in this
action.
I.
In 1921, Coast and Island Development Company (C&I Co.) acquired a
large tract of oceanfront property in Ocean County. Thereafter, C&I Co.
subdivided the property to create what is now known as Normandy Beach.
Normandy Beach is a community of individually owned properties with the
beach land owned by NBA. Normandy Beach is located in Brick Township and
Toms River Township.
In connection with the subdivision of the land to create Normandy Beach,
in 1925, C&I Co. filed the "Plan and Map of Normandy Beach" (the 1925 Plan)
with the Clerk of Ocean County. The 1925 Plan provided for over seventy
sublots, which would be sold as individual properties on which the owners could
A-2551-22 3 build single-family homes. The sublots were organized into twenty-five blocks,
eight of which fronted the beach. The beach itself was reserved for ownership
by a community association and was eventually conveyed to NBA. Some of the
original advertisements for Normandy Beach told prospective owners that they
would have access to the beach for "[s]urf [b]athing" and "[s]urf [f]ishing."
NBA "sets strategic direction and provides the long[-]range planning
function for the [Normandy Beach community] in terms of properties,
buildings[,] and major capital expenditures." NBIA is a not-for-profit entity that
does "any and all things necessary or incident[al] to the improvement" of
Normandy Beach. As such, NBIA is regarded as the "operating arm" of the two
associations.
The NBA beach property extends from the mean high-water line of the
Atlantic Ocean to the beachfront lots. The 1925 Plan does not expressly provide
for easements or points of access from the individual lots to the NBA beach. It
does, however, show eight avenues that end at the NBA beach property. The
1925 Plan also reserved an area for a potential boardwalk and a two-foot "buffer"
between the proposed boardwalk and the eastern boundaries of the beachfront
lots. The proposed boardwalk was never built.
A-2551-22 4 Plaintiffs own property known as 526 Ocean Terrace, Normandy Beach,
Brick Township, which consists of two beachfront lots (plaintiffs' property).
Plaintiffs bought their property in 2000. The chain of title for their property
runs from a succession of sales originating with a sale in 1929 from C&I Co. to
Samuel Berger. None of the property transfers in plaintiffs' chain of title include
express language identifying an easement over NBA's property.
After plaintiffs acquired their property in 2000, they became members of
NBA. It is undisputed that from 1929 until 2018, the predecessor owners of
plaintiffs' property, as well as plaintiffs, directly accessed the NBA beach
property by walking from their property to the beach.
In 2012, Hurricane Sandy struck the Jersey Shore, heavily damaging the
NBA and plaintiffs' properties. Following Hurricane Sandy, the United States
Army Corps of Engineers (Army Corps) and the New Jersey Department of
Environmental Protection (NJDEP) worked together to repair and restore
beaches along the coast of New Jersey, including by constructing and restoring
dune systems.
As a condition for undertaking those beach replenishment projects, the
Army Corps required all beachfront property owners to grant the NJDEP and
local municipalities a perpetual easement and right of way over their property
A-2551-22 5 (the Perpetual Easements). NBA and plaintiffs each granted the NJDEP and
Brick Township a perpetual easement to construct and preserve "a public beach,
dune system, and other erosion control and storm damage reduction measures."
Under the Perpetual Easements, property owners retained "the right to construct
a dune overwalk structure in accordance with any applicable Federal, State, or
local laws or regulations" to gain access to the beach.
As part of the beach replenishment projects, governmental entities
constructed protective dunes on the western portion of the NBA's property and
eastern portion of plaintiffs' property. Accordingly, by the fall of 2018,
plaintiffs' property was separated from the beach by dunes that had been
constructed under the Perpetual Easements.
In November 2018, plaintiffs built a walkover that allowed them to cross
over the dunes and access the beach directly from their property. The following
summer, in July 2019, Brick Township issued notices of violations to plaintiffs
and NBA concerning plaintiffs' dune walkover and directing both parties to
"correct these issues . . . by removal of the access . . . [or face] [v]iolations and
penalties." The next month, in August 2019, NBIA removed plaintiffs' dune
walkover. Thereafter, a wooden fence was erected between plaintiffs' property
and NBA's property. The parties dispute who or which entity built the fence.
A-2551-22 6 Thereafter, NBA took the position that beachfront property owners, including
plaintiffs, should access the beach by using the nearest beach access point at the
end of each of the eight avenues.
In February 2020, plaintiffs filed a complaint against NBA, NBIA, and
Brick Township. They asserted claims of breach of an express easement; breach
of an easement appurtenant; violation of riparian rights; nuisance; trespass;
equitable estoppel; promissory estoppel; unlawful interference with easement
rights; and inverse condemnation. Thereafter, they amended their complaint to
include claims for fraud and an implied easement. As part of their damage
claims, plaintiffs requested awards of attorneys' fees and punitive damages.
Approximately a year after instituting their action, plaintiffs moved for
leave to amend their complaint to add Kirby, the president of NBA, as a
defendant and to assert claims of malicious prosecution and liable per se against
Kirby. During discovery, plaintiffs learned that in August 2019, Kirby
attempted to have a criminal complaint filed against John Westerhold. Kirby
told the police that John Westerhold had engaged in criminal mischief and
trespass by repeatedly crossing over NBA's property and breaking a fence that
had been erected. Less than two weeks after Kirby sought to have the criminal
A-2551-22 7 complaint issued, he was informed by the municipal court that it had found no
probable cause to issue the complaint and, therefore, that the matter was closed.
At his deposition, Kirby admitted that he never actually saw John
Westerhold walking over NBA's property or breaking the fence. Instead, he
testified that he saw other people, who he could not identify, walking from
plaintiffs' property to NBA's property.
After hearing oral argument, the trial court denied plaintiffs' motion to
amend the complaint to add claims against Kirby. The court reasoned that the
malicious prosecution claim would be futile because Kirby had probable cause
to make the complaint. The court also held that the liable per se claim would be
futile because it was essentially based on the malicious prosecution claim. The
trial court then entered an order on May 21, 2021, memorializing its denial of
plaintiffs' motion to amend the complaint.
Following further discovery, in October 2021, plaintiffs moved for partial
summary judgment on their claim for an implied easement. On November 22,
2021, after hearing oral argument, the court issued an order granting plaintiffs
partial summary judgment on their claim for an implied easement to cross NBA's
property.
A-2551-22 8 The trial court based its ruling on several documents: the original
advertisements for properties in Normandy Beach, photographs from the 1920s,
and the restrictions in the deeds to the beachfront lots. Concerning the
advertisements, the trial court reasoned that the purchasers of beachfront lots,
including Berger, would have viewed the lots as having direct access to the
beach. In reaching that conclusion, the trial court also relied on historic
photographs, which showed that there was nothing between the beachfront lots
and the beach.
Regarding the restrictions in the deeds, the trial court noted that those
restrictions required beachfront lots to build more expensive homes with certain
setbacks, windows, and fences and, therefore, the court inferred that beachfront
property owners were getting something more than owners of non-beachfront
lots. The trial court went on to conclude that the something more was direct
access to the beach and ocean.
The trial court also reasoned that it was "common sense" that the owners
of beachfront lots would not "feel obligated to walk along what was initially a
paper street, not even an actual road, to a street end and then walk to the beach
or to the water." Finally, the trial court noted that there were no dunes near
plaintiffs' property until sometime in the 1960s. Therefore, the trial court
A-2551-22 9 surmised that after the government constructed dunes, plaintiffs had a right to
build a walkway over the dunes to continue the access that they and their
predecessor owners had enjoyed since the 1920s.
Following the trial court's grant of partial summary judgment, plaintiffs
applied for and obtained a permit from Brick Township to build a new at -grade
dune walkover. The walkover was then constructed in 2021.
In 2022, NBA and NBIA moved for summary judgment to dismiss all
plaintiffs' remaining claims. The trial court granted that motion in part,
dismissing six counts. Thereafter, the parties voluntarily agreed to dismiss
counts four, three, and six, and the court granted Brick Township's motion for
summary judgment on all remaining claims against it. That left plaintiffs'
damage claim related to their count for an implied easement.
Shortly before the remaining count was to be tried, NBA and NBIA moved
to preclude plaintiffs from presenting evidence concerning their claims for
attorneys' fees and punitive damages. After hearing argument, the trial court
granted that motion and, on March 14, 2023, entered a final judgment dismissing
plaintiffs' remaining claims.
Defendants now appeal from the order granting partial summary judgment
to plaintiffs on the implied easement claim. Plaintiffs have cross-moved from
A-2551-22 10 the orders denying their motion to amend the complaint to add claims against
Kirby and granting defendants' motion to bar plaintiffs from presenting evidence
of their claims for attorneys' fees and punitive damages.
II.
We begin by addressing NBA and NBIA's appeal. They contend that there
are genuine disputed issues of material fact concerning whether plaintiffs have
an implied easement across their property. We agree and therefore reverse the
summary judgment order granting the implied easement.
Appellate courts review a grant of summary judgment de novo, "applying
the same standard used by the trial court." Samolyk v. Berthe, 251 N.J. 73, 78
(2022). That standard requires us to "determine whether 'the pleadings,
depositions, answers to interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment or order as a
matter of law.'" Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021)
(quoting R. 4:46-2(c)). We do not defer to the trial court's legal analysis or
statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J.
459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).
A-2551-22 11 An easement is "a non-possessory interest in another person's land."
Borough of Harvey Cedars v. Karan, 214 N.J. 384, 390 n.1 (2013). It "is not the
equivalent of the ownership of property." Seals v. Cnty. of Morris, 210 N.J.
157, 177 (2012). Instead, an easement entitles the holder to make a specific "use
of the other's property." Kline v. Bernardsville Ass'n, Inc., 267 N.J. Super. 473,
478 (App. Div. 1993) (quoting Leach v. Anderl, 218 N.J. Super. 18, 24 (App.
Div. 1987)). "An easement appurtenant is created when the owner of one parcel
of property (the servient estate) grants rights regarding that property to the
owner of an adjacent property (the dominant estate)." Rosen v. Keeler, 411 N.J.
Super. 439, 450 (App. Div. 2010) (citing Vill. of Ridgewood v. Bolger Found.,
104 N.J. 337, 340 (1986)).
An easement may be "created (1) by express acts of the parties, (2) by
implication, or (3) by prescription." Kline, 267 N.J. Super. at 478. An easement
by implication rests on the concept that parties make conveyances "with
reference to the actual, visible and known condition of the properties." Leach,
218 N.J. Super. at 25 (quoting Mahony v. Danis, 95 N.J. 50, 59 (1983)
(Schreiber, J., dissenting)). Accordingly, the law presumes that conveyances do
not intend to change the "benefits and burdens" that belong to the properties at
the time of the conveyance. Ibid. (quoting Mahony, 95 N.J. at 59 (Schreiber, J.,
A-2551-22 12 dissenting)). To establish an implied easement, a plaintiff must prove all
elements "by clear and convincing evidence." Id. at 26; see Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 533-34 (1995) (explaining that at the
summary judgment stage, courts are "guided by the same evidentiary standard
of proof . . . that would apply at the trial on the merits").
The trial court's holding that granted plaintiffs an implied easement rested
on several inferences that favored plaintiffs and are not supported by undisputed
material evidence. In that regard, the trial court relied on the restrictive
covenants in the deeds to oceanfront property in Normandy Beach, which
required the property owners to build more expensive homes. From those
restrictions, the trial court inferred that oceanfront property owners must have
gotten something more and that something included direct access to the ocean.
That conclusion rests on two inferences that are not clearly established in the
summary judgment record. Nothing in the law requires courts to find that a deed
restriction implies that the property owner is receiving a compensatory benefit
beyond what they are paying for the property. Moreover, even if beachfront
property owners in Normandy Beach were assumed to have received something
more, that something was not necessarily a perpetual easement to cross over
NBA's property.
A-2551-22 13 The trial court also relied on photographs from the 1920s and reasoned
that because there were no impediments between the beachfront property and
the beach, the beachfront property owners would have assumed that they had
direct access to the beach. In addition, the court referenced common sense and
concluded that Berger, who originally purchased the property from C&I Co. in
1929, would have assumed that he had direct access to the beach. Here again,
those inferences and conclusions are based on assumptions that are not
established by undisputed evidence in the record.
In granting partial summary judgment to plaintiffs, the trial court also
ignored evidence presented by NBA that might, when viewed in the light most
favorable to NBA, support its position that plaintiffs do not have an easement.
NBA points out that there is no document that gives plaintiffs an express
easement to cross over NBA's property. The lack of an express easement
undercuts the contention for an implied easement because if the direct-access
right was so important, it should have been expressed. NBA also points out that
plaintiffs' property is less than fifty feet from the nearest beach access point. It
argues that short distance undercuts plaintiffs' assertion that a property owner
would expect to be able to walk directly across the dunes because it is relatively
A-2551-22 14 easy to walk to a beach access point enjoyed by all members of the Normandy
Beach community.
In short, the trial court made a series of assumptions that were really
findings of facts because those assumptions were based on information and
evidence that could be viewed in a different way. The trial court also ignored
other evidence that could be viewed to favor defendants' position and therefore
did not give every favorable inference to defendants. So, the easement issue
should not have been summarily decided. Instead, the question of whether
plaintiffs have an easement, express or implied, requires a trial on those issues.
Therefore, we reverse the order that granted plaintiffs an implied easement and
remand the issue of whether plaintiffs have an easement, implied or otherwise,
for determination at trial.
III.
Next, we address plaintiffs' cross-appeal. In their cross-appeal, plaintiffs
challenge two orders: (1) the order denying their motion for leave to amend
their complaint to add claims for malicious prosecution and liable per se against
Kirby; and (2) the order precluding them from presenting evidence on their
claims for attorneys' fees and punitive damages.
A-2551-22 15 We review a trial court's decision to grant or deny a motion to amend the
complaint for abuse of discretion. Port Liberte II Condo. Ass'n v. New Liberty
Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014). "A
court abuses its discretion when its 'decision is made without a rational
explanation, inexplicitly depart[s] from established policies, or rest[s] on an
impermissible basis.'" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting State
v. R.Y., 242 N.J. 48, 65 (2020)) (internal quotation marks omitted).
Rule 4:9-1 governs when pleadings may be amended. When a motion is
required, it should generally be granted unless granting the amendment would
be futile. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 500-01 (2006)
(citing R. 4:9-1); Grillo v. State, 469 N.J. Super. 267, 275 (App. Div. 2021).
A. The Claim for Malicious Prosecution.
To prove malicious prosecution, a plaintiff must show: (1) the defendant
instituted a criminal action against the plaintiff; (2) the defendant acted with
malice; (3) there was an absence of probable cause for the criminal action; and
(4) the criminal action ended in plaintiff's favor. Brunson v. Affinity Fed. Credit
Union, 199 N.J. 381, 393-94 (2009). The cause of action reflects the principle
that "one who recklessly institutes criminal proceedings without any reasonable
basis should be [held] responsible for such irresponsible action." Epperson v.
A-2551-22 16 Wal-Mart Stores, Inc., 373 N.J. Super. 522, 534 (App. Div. 2004) (alterations in
original) (quoting Lind v. Schmid, 67 N.J. 225, 262 (1975)). Claims for
malicious prosecution, however, are "not a favored cause of action because
citizens should not be inhibited in instituting prosecution of those reasonably
suspected of crime," or in seeking redress in the courts. Lind, 67 N.J. at 262.
It is undisputed that no criminal complaint was issued against John
Westerhold. Although Kirby made an application for a complaint to be issued,
the municipal court determined that there was no probable cause to issue the
complaint, and it was never served on John Westerhold. Given those facts, we
conclude that plaintiffs could not establish a claim of malicious prosecution
against Kirby.
It is generally recognized that criminal actions are not instituted unless
and until the warrant or summons is issued. Accordingly, the Restatement
(Second) of Torts explains:
[F]ormal action must be taken by an official or a tribunal before there can be that institution of criminal proceedings which the plaintiff must prove in order to make his accuser liable under the rule stated under § 653 [the cause of action for malicious prosecution]. The mere fact that a person has submitted to a magistrate an affidavit for the purpose of securing a warrant for another's arrest or a summons for him to appear at a hearing, does not justify a finding that he has initiated criminal proceedings against the other.
A-2551-22 17 The proceedings are not instituted unless and until the warrant or summons is issued.
[Restatement (Second) of Torts § 654 cmt. d (Am. L. Inst. 1965).]
While there are some cases in New Jersey that suggest that applying for a
criminal complaint will satisfy the first element of malicious prosecution, those
cases are distinguishable from this case. Plaintiffs rely on Shoemaker v.
Shoemaker, 11 N.J. Super. 471 (App. Div. 1951), where an action for malicious
prosecution was sustained after the named defendant swore to a complaint that
charged plaintiff with threatening and abusing defendants' child. Notably, in
Shoemaker, a warrant was issued, and the plaintiff was arrested and jailed for
four days before the complaint was dismissed for insufficient evidence. Id. at
474. Here, Kirby reported the alleged mischief and trespass to the police. No
criminal complaint, summons, or warrant was issued.
Moreover, the record would not support a clear finding that Kirby did not
have some cause for making his report or that he acted with malice. See id. at
476 ("The substantial question argued is whether the defendant at the time he
initiated the criminal proceeding honestly believed in plaintiff's guilt upon facts
which were such that reasonable [persons] could regard them as proof that
plaintiff was guilty of the charge."). In short, we discern no abuse of discretion
A-2551-22 18 because the central dispute over an easement should not be allowed to spiral into
a claim of malicious prosecution.
B. The Liable Per Se Claim.
To assert a claim for liable, a plaintiff must demonstrate three elements:
(1) the defendant "made a false and defamatory statement concerning [the
plaintiff];" (2) "the statement was communicated to another person (and [was]
not privileged);" and (3) the defendant "acted negligently or with actual malice."
G.D. v. Kenny, 205 N.J. 275, 292-93 (2011); accord Neuwirth v. State, 476 N.J.
Super. 377, 390-91 (App. Div. 2023). "A defamatory statement, generally, is
one that subjects an individual to contempt or ridicule, one that harms a person's
reputation by lowering the community's estimation of [that person] or by
deterring others from wanting to associate or deal with [that person]." Petro-
Lubricant Testing Lab'ys, Inc. v. Adelman, 233 N.J. 236, 253 (2018) (quoting
Durando v. Nutley Sun, 209 N.J. 235, 248-49 (2012)) (internal quotation marks
omitted).
Some statements are so injurious that they are "defamatory as a matter of
law." Romaine v. Kallinger, 109 N.J. 282, 291 (1988). Those statements
include "falsely attributing criminality to an individual." G.D., 205 N.J. at 293.
A-2551-22 19 Plaintiffs' allegations concerning liable per se were based on Kirby's
application for a criminal complaint. The criminal complaint was never issued
and, therefore, there was no publication of the alleged liable statements. To the
extent that plaintiffs argue that there was publication to the police and the judge
who reviewed the application, Kirby had a qualified privilege to report the
information to them. Dairy Stores, Inc. v. Sentinel Publ'g. Co., 104 N.J. 125,
137 (1986) (explaining that "citizens have a qualified privilege to make
statements to authorities for the prevention and detection of crime").
C. Plaintiffs' Claims for Attorneys' Fees and Punitive Damages.
We review decisions regarding attorneys' fees and punitive damages for
abuse of discretion. See McGowan v. O'Rourke, 391 N.J. Super. 502, 508 (App.
Div. 2007) (attorneys' fees); Maudsley v. State, 357 N.J. Super. 560, 590 (App.
Div. 2003) (punitive damages).
"A prevailing party can recover counsel fees if expressly allowed by
statute, court rule, or contract." Empower Our Neighborhoods v. Guadagno, 453
N.J. Super. 565, 579 (App. Div. 2018). Initially, we note that given our reversal
of the partial summary judgment award to plaintiffs, at this point plaintiffs are
not prevailing parties. More to the point, plaintiffs have identified no statute,
court rule, or contract entitling them to an award of attorneys' fees. Instead, they
A-2551-22 20 rely on Red Devil Tools v. Tip Top Brush Co., 50 N.J. 563 (1967). The facts in
Red Devil that gave rise to an award of attorneys' fees do not exist in this case
and Red Devil does not support plaintiffs' claim for attorneys' fees.
Accordingly, we discern no abuse of discretion in the trial court's decision to
preclude plaintiffs from presenting evidence of their claim for attorneys' fees.
To establish a claim for punitive damages, a plaintiff must prove, "by clear
and convincing evidence, that the harm suffered was the result of the defendant's
acts or omissions, and such acts or omissions were actuated by actual malice or
accompanied by a wanton and willful disregard of persons who foreseeably
might be harmed by those acts or omissions." N.J.S.A. 2A:15-5.12(a).
"Actual malice" means "an intentional wrongdoing in the sense of an evil-
minded act." In re Gloria T. Mann Revocable Tr., 468 N.J. Super. 160, 178
(App. Div. 2021) (quoting N.J.S.A. 2A:15-5.10) (internal quotation marks
omitted). "Wanton and willful disregard" is defined as "a deliberate act or
omission with knowledge of a high degree of probability of harm to another and
reckless indifference to the consequences of such act or omission." N.J.S.A.
2A:15-5.10. To support a claim for punitive damages, plaintiffs must identify
conduct that is "exceptional or outrageous" and "especially egregious ." Saffos
v. Avaya Inc., 419 N.J. Super. 244, 263 (App. Div. 2011) (first quoting Maiorino
A-2551-22 21 v. Schering-Plough Corp., 302 N.J. Super. 323, 353 (App. Div. 1997); and then
quoting Rendine v. Pantzer, 141 N.J. 292, 314 (1995)) (internal quotation marks
As the trial court correctly recognized, this entire action relates to a
dispute over a property right; that is, an easement. Following discovery,
plaintiffs presented no evidence that NBA or NBIA acted with malice or
engaged in actions that were exceptionally outrageous or especially egregious.
Instead, the record demonstrates that NBA and NBIA simply took a position
with which plaintiffs disagree. That dispute does not warrant punitive damages.
IV.
In summary, on defendants' appeal, we reverse the order granting partial
summary judgment to plaintiffs and finding an implied easement. On plaintiffs'
cross-appeal, we affirm both orders challenged by plaintiffs. We, therefore,
remand the remaining issues of whether plaintiffs have an easement for a trial
on those issues.
Reversed and vacated in part, affirmed in part, and remanded. We do not
retain jurisdiction.
A-2551-22 22