GEORGE MARAGLIANO /Cross- v. WANTAGE LAND USE BOARD B. ROBERT McEWAN - and JOSEPH MAGGIO, L.L.C Cross-Respondent

 
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The status of this decision is

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(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3807-04T13807-04T1

GEORGE MARAGLIANO,

Plaintiff/Cross-Appellant,

v.

WANTAGE LAND USE BOARD,

B. ROBERT McEWAN,

Defendants-Respondents,

and

JOSEPH MAGGIO, L.L.C.,

Defendant-Appellant/

Cross-Respondent.

________________________________________

 

Submitted December 14, 2005 - Decided

Before Judges Conley, Weissbard and Winkelstein.

On appeal from the Superior Court of New Jersey, Law Division, Sussex County, L-49-03 and L-71-04.

Keith A. Hyche, attorney for appellant/cross-respondent in L-49-03 and respondent in L-71-04.

Richard J. Abrahamsen, attorney for cross-appellant in L-49-03 and L-71-04.

Weiner Lesniak, L.L.P., attorney for respondent Wantage Land Use Board in L-49-03 and L-71-04 (Bryant Gonzalez, on the brief).

Vogel, Chait, Collins and Schneider, attorneys for respondent B. Robert McEwan in L-49-03 and L-71-04 (Thomas J. Molica, Jr., on the brief).

PER CURIAM

This appeal and cross-appeal mystify us. Somehow, a rather straightforward, explicit remand to the Wantage Land Use Board (Board) directed by us in George Maragliano v. Wantage Land Use Bd., No. A-2778-03T1 (App. Div. Nov. 9, 2004), arising from L-49-03 and involving a minor subdivision approval granted to Joseph Maggio (Maggio), became complicated by an amended complaint filed in L-71-04 by plaintiff George Maragliano (Maragliano) and involving a major subdivision approval granted to B. Robert McEwan (McEwan) for the remainder property from the Maggio subdivision and an adjacent parcel owned by McEwan. Despite our remand directly to the Board, the trial judge seems to have entered his own remand order in L-49-03 on February 25, 2005. At the same time, he entered another remand order in L-71-04. Both remands were to the Board and both for the same purpose. Maggio appeals the remand order in L-49-03 and Maragliano cross-appeals both orders.

We do not set forth all that we said in our prior opinion. Suffice it to say, our remand as to L-49-03 was limited and directed to the Board. On January 25, 2005, the Board acted on the remand and memorialized its action by resolution entered on April 26, 2005. We see no rational basis for interfering with its determination. Thus, we exercise our original jurisdiction and affirm the Board's remand resolution. As a result, we reverse the trial judge's February 25, 2005, remand order. Cf. In re Application of Plainfield-Union Water Co., 14 N.J. 296, 302-03 (1954) (after remand by an appellant court, lower tribunal's exercise of jurisdiction is conditioned upon the remand order); Tomaino v. Burman, 364 N.J. Super. 224, 233 (App. Div. 2003), certif. denied, 179 N.J. 310 (2004) ("It is the peremptory duty of the trial court, on remand, to obey the mandate of the appellate tribunal precisely as it is written.").

We briefly comment on Maragliano's efforts to inject new claims in his dispute with Maggio by way of the amended complaint he filed in L-71-04, his in lieu of prerogative writs complaint against McEwan's subdivision approval. The amended complaint alleged that the Maggio subdivision was null and void because Maggio had not filed a deed within 190 days of approval, as required by the Board's resolution and N.J.S.A. 40:55D-47d, and that the Board's extension of the 190-day requirement pursuant to N.J.S.A. 40:55D-47f was improper. During the hearing before the trial judge that led to the two remand orders before us, Maragliano also asserted that a zoning amendment, adopted prior to final judgment in L-49-03, which increased permitted lot size for the zone in which the Maggio property was located, must apply.

These contentions could have been raised in the trial proceedings prompted by L-49-03. We see no legal basis for plaintiff to piece-meal his claims against that subdivision approval. Having failed to raise these issues during the prior litigation, Maragliano has waived them. Cf. State v. LeFante, 14 N.J. 584, 589-90 (1954); Baker v. Nat'l State Bank, 353 N.J. Super. 145, 160 (App. Div. 2002); Garden State Plaza Corp. v. S.S. Kresge Co., 78 N.J. Super. 485, 495 (App. Div.), certif. denied, 40 N.J. 226 (1963). He cannot assert them as a basis for his cross-appeal from the subsequent L-49- 03 February 25, 2005, "Order of Remand."

As to Maragliano's contentions concerning the L-71- 04 February 25, 2005, "Order for Judgment and Remand," that order is interlocutory. The following colloquy between the judge and Maragliano's attorney at the February 1, 2005, proceeding leading to the order, makes that clear:

THE COURT: You mean McEwan [L-71-04]?

[PLAINTIFF'S COUNSEL]: The McEwan case, yeah.

THE COURT: Okay.

[PLAINTIFF'S COUNSEL]: There [are] some common law . . . counts which have not gone to trial yet.

THE COURT: Right.

[PLAINTIFF'S COUNSEL]: So -

THE COURT: You're going to have to consider when you want to continue with those counts. If you do, then . . . I'll set a schedule on that.

[PLAINTIFF'S COUNSEL]: I do want to continue on it, because of the damages that my client has incurred by some of the actions taken, absolutely.

THE COURT: And I don't know what those - you might have a motion in that regard, I don't know what the response is. And that's really not before me today, but -

[PLAINTIFF'S COUNSEL]: Okay.

THE COURT: -- certainly I'll -

[PLAINTIFF'S COUNSEL]: I'm just trying to figure out procedurally . . . since Your Honor's ruling today does not dispose of all issues as to all the parties in the case, I think it's not - if I took an appeal by leave to appeal -

THE COURT: Right.

. . . .

If there are other issues in McEwan you're absolutely right. But what I'm saying is, as a result of today's decision and the remand to the Board, after the remand to the Board, I think what I'll do is I'll set up a conference, a telephone conference, in this matter in about a month or so, and you can let me know if you want to proceed with the other counts, after you speak to your client.

If you do, then I'll set a schedule. But you're right, it would be interlocutory in that regard.

Indeed, in June 2005, Maragliano filed a motion for leave to appeal the L-71- 04 February 25, 2005, order. That motion was denied by us on July 20, 2005. There are no issues of public importance that would prompt us to now nunc pro tunc grant leave to appeal.

On the appeal and cross-appeal in L-49-03, we reverse and vacate the trial judge's February 25, 2005, "Order for Remand," and affirm the Board's April 26, 2005, resolution following our prior remand. We do not address Maragliano's contentions concerning the L-71- 04 February 25, 2005, "Order for Judgment and Remand" as that order is interlocutory.

 

As to the cross-appeal filed by Maragliano, ostensibly it is from the remand order in L-49-03 as the remand order in L-71-04 was not a final judgment. But Maragliano's brief seeks to set aside both subdivision approvals.

As the parties have not provided us with the original complaint, we cannot tell what the amendment added.

We recognize that the Board's extension of the time to file the deed did not occur until a few days after final judgment was entered by the trial judge. But the failure of Maggio to timely file the deed occurred well before final judgment. Plaintiff could have raised that failure as an additional basis for his attack upon the subdivision approval. Moreover, he could have sought a reconsideration by the trial judge for "newly discovered" evidence, or raised the issue in his appeal to us, which we may or may not have opted to consider.

(continued)

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A-3807-04T1

December 23, 2005