Robert A. Bliesmann v. William Duda

• Court: New Jersey Superior Court Appellate Division
• Decided: April 29, 2024
• Docket: A-2526-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2526-22

ROBERT A. BLIESMANN and the Estate of LORETTA M. BLIESMANN,

Plaintiffs-Respondents,

v.

WILLIAM DUDA,

Defendant-Appellant. ___________________________

Argued April 15, 2024 – Decided April 29, 2024

Before Judges Mawla and Chase.

On appeal from the Superior Court of New Jersey, Chancery Division, Ocean County, Docket No. C-000027-22.

Michael J. Pifko argued the cause for appellant.

Lauren Murray Dooley argued the cause for respondent (Novins, York, Jacobus & Dooley, PA, attorneys; Lauren Murray Dooley, on the brief).

PER CURIAM Defendant William Duda appeals from an April 19, 2023 order granting

summary judgment in favor of plaintiffs Robert A. Bliesmann and the Estate of

Loretta M. Bliesmann and ordering defendant to execute a utility easement. We

affirm.

I.

Plaintiffs own a property located at 900 Ridge Road in Brick Township

("Ridge Road Property"). The Ridge Road Property fronts Ridge Road.

Defendant is the owner of a property located at 810 Bristol Lane in Brick

Township ("Bristol Lane Property"). The Ridge Road Property and the Bristol

Lane Property sit back-to-back from one another. The Bristol Lane Property is

currently developed with a single-family residence, while the Ridge Road

Property is a vacant wooded parcel.

Both properties were created by a minor subdivision approval by the Brick

Township Planning Board obtained by plaintiffs in 1989. The minor subdivision

map depicts a twenty-foot-wide utility easement running from a Bristol Lane

right-of-way along the easterly property line of the Bristol Lane Property and

terminating at the rear of Ridge Road Property. The subdivision plan was duly

executed after obtaining Planning Board approval and was filed in May 1989

with the Ocean County Clerk.

A-2526-22 2 On June 16, 1989, a deed was executed for the sale of the Bristol Lane

Property from plaintiffs to defendant. The deed contains the following

description: "Subject to a [twenty foot] wide utility easement running along the

easterly line of [the Bristol Lane Property] from the northerly line of Bristol

Lane to the northerly line of [the Bristol Lane Property]" ("Easement"). Over

the years, defendant has executed multiple mortgages on the Bristol Lane

Property, which all include the same language used in the deed. While the

Easement was granted and referenced in the deed and defendant's mortgages,

there is no separate, written recording of the Easement in the Ocean County

Clerk's Office.

Plaintiffs are attempting to sell the Ridge Road Property, and the title

company requires a separate written recording of the Easement to convey clear

title. There is no other public utility access to the Ridge Road Property. Thus,

the Easement would provide typical water and sewer service lines to a main,

which is located on Bristol Lane, so that the Ridge Road Property can be

developed. Plaintiffs requested defendant's execution of the Easement multiple

times, and defendant continuously refused.

Plaintiffs filed a complaint and order to show cause for specific

performance of the execution of the Easement. Attached to the complaint was

A-2526-22 3 a certification of plaintiffs' expert witness, Robert C. Burdick, P.E., a licensed

State engineer, which states, if plaintiffs were prevented from running utility

lines from the main located on Bristol Lane, there would be substantial cost to

otherwise run the lines. Defendant filed an answer and counterclaim.

Defendant's counterclaim argued plaintiffs failed to disclose the right to a utility

easement, a material fact he asserted was known to them, when contracting for

the sale of the Bristol Lane Property. In March 2023, both parties moved for

summary judgment.

On April 19, 2023, after oral argument, the trial judge granted plaintiffs'

motion for summary judgment and denied defendant's cross-motion. The judge

ordered defendant execute the Easement within seven days of the order's filing,

and if he failed to do so, plaintiffs were permitted to file a motion to enforce

litigant's rights. In his oral opinion, the judge found a valid and enforceable

easement existed and found plaintiffs clearly reserved a utility easement through

the deed for sale of the Bristol Lane Property. The judge further found defendant

was placed on notice of the reservation of the Easement for utility purposes by

the deed itself and by the mortgages entered into and signed by defendant. And,

neither laches nor the statute of frauds applied because the deed constituted a

written document satisfying both doctrines.

A-2526-22 4 II.

We review a trial court's summary judgment decision de novo. DeSimone

v. Springpoint Senior Living, Inc., 256 N.J. 172, 180 (2024). A motion for

summary judgment must be granted if the moving party can demonstrate "there

is no genuine issue as to any material fact challenged and that the moving party

is entitled to judgment or order as a matter of law." R. 4:46-2(c). "To decide

whether a genuine issue of material fact exists, the trial court must 'draw[] all

legitimate inferences from the facts in favor of the non-moving party.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (alteration in original) (quoting

Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)); see also Brill v.

Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). "The court's function

is not 'to weigh the evidence and determine the truth of the matter but to

determine whether there is a genuine issue for trial.'" Rios v. Meda Pharm., Inc.,

247 N.J. 1, 13 (2021) (quoting Brill, 142 N.J. 520, 540 (1995)).

An easement is a "nonpossessory incorporeal interest in another's

possessory estate in land, entitling the holder of the easement to make some use

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

A-2526-22 5 [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.

III.

Defendant argues the trial judge's finding was erroneous because it

incorrectly determined he had knowledge of the Easement when purchasing the

Bristol Lane Property. The judge also wrongfully allowed plaintiffs to enforce

the Easement without first complying with the Planning Board's requirement the

Easement be recorded as a condition of approval for their application for minor

subdivision.

Defendant posits the publicly recorded documents referenced by plaintiffs

lack the specificity required to establish an express grant of an easement on his

property for the purpose of placing water and sewer lines. He further contends

plaintiffs failed to reference the Easement their attorney prepared in the deed of

sale and did not record an easement agreement with the Ocean County Clerk,

A-2526-22 6 notwithstanding the condition imposed by the Planning Board for approval of

the minor subdivision plan. Taken together, these facts demonstrate plaintiffs'

request for specific performance of execution of the Easement was fatally

flawed.

It is well-settled an easement can be created by grant or by reservation to

the grantor. Leasehold Estates, Inc. v. Fulbro Holding Co., 47 N.J. Super. 534,

551 (App. Div. 1957). "[W]hen there is any ambiguity or uncertainty about an

easement grant, the surrounding circumstances . . . play a significant role in the

determination of the controlling intent." Hyland v. Fonda, 44 N.J. Super. 180,

187 (App. Div. 1957).

Defendant's claim he lacked knowledge of the Easement is belied by the

record. Here, it is clear from several of the documents submitted by both

plaintiffs and defendant a utility easement existed and was described in

documents that would sufficiently place defendant on notice of its existence.

First, the 1988 minor subdivision approval from the Brick Township Planning

Board and the respective tax map and plans demonstrating the size and location

of the Easement placed defendant on sufficient notice of the Easement.

Essentially, the incorporation of the Easement into the minor subdivision plan

benefitted defendant because it enabled plaintiffs to subdivide their land, sell a

A-2526-22 7 lot to defendant, and allowed defendant to then build his home on the Bristol

Lane Property.

Next, the original deed for the sale of the Bristol Lane Property to

defendant includes a description of the Easement. So do two mortgages for the

Bristol Lane Property executed by defendant in 1989, a mortgage for the Bristol

Lane Property executed by defendant in 2014, the current tax map of the

Township of Brick, and a survey performed on the Bristol Lane Property in June

2021. Many of these documents contain defendant's signature, further

evidencing his notice of the Easement since his purchase of the land in 1989.

Defendant further asserts the trial court's granting plaintiffs summary

judgment incorrectly relied on the certification of Robert C. Burdick, P.E .,

because the certification failed to satisfy Rule 1:4-4(b), requiring certifications

to swear to the truthfulness of the statements contained therein. Defendant

argues because Burdick did not swear to the truthfulness of his statements, the

trial court should have disregarded the certification in its entirety. However,

this, too, is belied by the record.

The trial court relied on the certification only to explain what main utility

lines were currently available for the Ridge Road Property and how those lines

would be accessed by the Easement. The trial court explained its limited use of

A-2526-22 8 the certification for these reasons and did not find the need to rely on the

certification for any other purpose. The certification had no impact on the

court's determination as the record is replete with other documents describing

and illustrating the location and terms of the Easement.

Defendant next argues plaintiffs' action is for the enforcement of a

contract dating back to 1989, which is well beyond the six-year statute of

limitations under N.J.S.A. 2A:14-1. This statute governs certain actions,

including claims for: trespass; the taking, detaining, or converting personal

property; replevin actions; and recovery on claims or liability under contractual

agreements. We are unpersuaded.

Plaintiffs are attempting to exercise their rights as easement holders,

which does not implicate N.J.S.A. 2A:14-1. The right to use of a granted

easement is different from other causes of action, such as recovery under

contract. Since the rights of an easement holder are not subject to this statute,

the six-year statute of limitations does not apply.

Lastly, defendant argues plaintiffs' action should be barred under the

doctrine of laches. Defendant explains plaintiffs possessed knowledge of the

Easement prior to conveying title for the Bristol Lane Property to him in 1988,

and their failure to disclose the Easement, appropriately record it in the Ocean

A-2526-22 9 County Clerk's Office, and failure to act on the Easement in any manner in over

thirty years all caused him "extreme detriment."

The doctrine of laches "is invoked to deny a party enforcement of a known

right when the party engages in an inexcusable and unexplainable delay in

exercising that right to the prejudice of the other party." Knorr v. Smeal, 178

N.J. 169, 180-81 (2003). "Laches may only be enforced when the delaying party

had sufficient opportunity to assert the right in the proper forum and the

prejudiced party acted in good faith believing that the right had been

abandoned." Id. at 181. "The core equitable concern in applying laches is

whether a party has been harmed by the delay." Ibid.

Here, plaintiffs obtained the Easement as a result of a condition imposed

by the Brick Township Planning Board for minor subdivision approval in 1988.

The Easement was required in the event the Ridge Road Property was ever to be

developed so that the property would have access to water and sewer. The fact

that plaintiffs had obtained the Easement and never took action to utilize it until

now does not harm defendant. Defendant was aware of the Easement at its

creation, and plaintiffs were free to use the Easement as it became appropriate.

Now, as the Ridge Road Property is set to be sold and developed out of its

wooded and unoccupied status, the need for the Easement has finally become

A-2526-22 10 appropriate, and defendant must abide by the terms he agreed to, as set forth

under the deed and the minor subdivision approvals created in 1989.

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-2526-22 11