ROBERT J. BURCH v. SOCRATES KYRITSIS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1816-04T51816-04T5

ROBERT J. BURCH,

Plaintiff-Appellant/

Cross-Respondent,

v.

SOCRATES KYRITSIS,

Defendant-Respondent/

Cross-Appellant,

and

SYCAMORE CUSTOM LIVING, L.L.C.,

Defendant-Respondent.

_________________________________

 

Submitted: January 18, 2006 - Decided February 10, 2006

Before Judges Axelrad and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2198-02.

Robert J. Burch, appellant/cross-respondent, pro se.

Cuyler Burk, attorneys for respondent/cross-appellant Socrates Kyritsis (Eric J. Konecke, on the brief).

Anthony J. Sposaro, attorney for respondent Sycamore Custom Living, L.L.C.

PER CURIAM

This case involves a protracted series of negotiations and disputes between the owners of abutting parcels of property. Plaintiff Robert Burch owns and resides at Lot 4l in Block 38 in Chatham Township, a corner lot. His former neighbor, defendant Socrates Kyritsis sought to subdivide Lot 42, located to the south and east of plaintiff's property, into five residential lots. As a condition of planning board approval of the subdivision, it was necessary for Kyritsis to include plaintiff's lot in the subdivision and obtain an easement on it to improve the sight line and secure additional road frontage for safe ingress and egress to the proposed development. Plans for construction of the subdivision also required various improvements to plaintiff's property, including the relocation of the driveway and the construction of a wall along the Meyersville Road side of the property.

Negotiations between plaintiff and Kyritsis were prolonged and complex, but eventually three agreements were signed, and plaintiff supported the subdivision as co-applicant. The written documents were "Articles of Agreement" dated March l, 1997, "Easements of Lot 41" dated June 3, 1999 and "Amendment to Articles of Agreement" dated May l, 2000. The subdivision as set forth in plans drawn by Murphy and Hollows was approved on April l6, 200l. On December 17, 200l Kyritsis sold his interest in the realty to co-defendant Sycamore Custom Living, L.L.C., with Sycamore assuming responsibility for the remainder of Kyritsis' obligations to plaintiff.

As the subdivision work progressed, plaintiff became dissatisfied with Sycamore's failure to undertake a variety of work, including the construction of the wall along Meyersville Road, landscaping in that area, the construction of a stockade fence around his property, regrading of his driveway and installation of Belgian block around its perimeter. He also disputed certain cash payments that he claimed were outstanding.

Plaintiff filed a pro se action for breach of oral and written contract against Kyritsis and Sycamore, seeking damages and specific performance of work he alleged was contractually required. Plaintiff further asserted that Kyritsis failed to inform Sycamore of the "Easements [agreement] . . . and the oral agreements and understandings between Kyritsis and plaintiff which [bound] the parties and their lands." By subsequent letter, Kyritsis' counsel sent plaintiff a demand to dismiss his "frivolous" claims pursuant to Rule l:4-8; plaintiff did not.

Following a two-day bench trial, consisting largely of competing testimony from plaintiff and Kyritsis, Judge Cramp issued a nine-page written decision on June l, 2004, rejecting most, but not all, of plaintiff's claims. He found the May l, 2000 Amendment superseded the parties' prior agreements, and that no verbal agreements had been reached between Kyritsis and Burch. The trial judge made express credibility assessments and factual findings as to each of the agreements and what work was performed and what additional payments were made to plaintiff in lieu of improvements. Also pertinent to this appeal, the court found that the rock landscaping wall along the Meyersville Road portion of plaintiff's property was constructed in accordance with the plans submitted to the planning board, thus Sycamore's obligation with regard to the wall construction was completely satisfied.

The court relieved Kyritsis of any obligations under the agreement and imposed specific outstanding obligations on Sycamore, based on the Murphy and Hollows plans of September l7, 1998 that were submitted to the planning board. Pursuant to the court's June 29, 2004 judgment, Sycamore was required to pave plaintiff's driveway and install an apron with Belgian block curbing and to construct a red cedar fence behind the rock wall along the front portion of plaintiff's property. Sycamore was not required to re-landscape, install a stockade fence, install Belgian block along the perimeter of plaintiff's driveway, perform further work on the elevations or storm sewers except to connect the PVC pipe to the RVC pipe already in place, or pay the $5,000 contained in the easement agreement. After plaintiff moved for reconsideration, the trial judge clarified his original ruling. By order dated September 10, 2004, the court amended the prior judgment to require Sycamore to pay plaintiff the outstanding $10,900 that was due in accordance with the May l, 2000 Amendment, representing the difference between $20,000 and the actual cost of the rock landscaping wall. The June order was further revised by order of September 30, 2004.

On July l9, 2004, Kyritsis moved, pursuant to Rule 1:4-8, for attorney's fees and costs incurred in defending plaintiff's purported frivolous claim against him. By order and written decision of October 4, 2004, the court denied this relief, finding plaintiff had a good faith belief in his position.

Plaintiff appealed, challenging many of the court's credibility determinations and factual findings as to the agreements between the parties. He contends the trial judge erred in not requiring Sycamore to re-install the rock landscaping wall that was partially disassembled by unknown persons; install granite curbing around the entire perimeter of the driveway, not just the apron; grade the driveway pursuant to the elevation plan drawn by Recon; install a stockade fence around the perimeter of his property; and pay him $5,000. Sycamore did not cross-appeal from the judgment against it. Kyritsis did cross-appeal the trial court's ruling denying its motion under the frivolous litigation rule.

 
The scope of our review of a judgment in a non-jury case is extremely limited. "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974). An appellate court should not second guess the discretionary rulings, factual findings and legal conclusions of the trial judge unless "they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence so as to offend the interests of justice." Ibid. From our review of the record we are satisfied the trial judge carefully assessed the testimony and evidence in making his factual findings and legal conclusions, and that such findings and conclusions are amply supported by the record. Accordingly, we affirm the appeal and cross-appeal substantially for the reasons set forth by Judge Cramp in his oral and written decisions. R. 2:11-3(e)(1)(A) and (E).

Affirmed.

(continued)

(continued)

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A-1816-04T5

February 10, 2006