ALAN KELLERMAN, M.D., et al. v. ECKERD CORPORATION et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3614-04T53614-04T5

ALAN KELLERMAN, M.D., P.A., F.A.C.P.,

and SANDRA VOLUSHER KELLERMAN,

Plaintiffs-Appellants,

v.

ECKERD CORPORATION and OSBORNE ASSOCIATES

V, L.L.C.,

Defendants-Respondents.

__________________________________

 

Argued March 29, 2006 - Decided April 17, 2006

Before Judges Conley and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Camden County, C-144-02.

Hercules Pappas argued the cause for appellants (Pappas & Richardson, attorneys; John J. Richardson, on the brief).

James J. Madden argued the cause for respondents (Madden, Madden & Del Duca, attorneys; Patrick J. Madden, on the brief).

PER CURIAM

Following a bench trial on plaintiffs' quiet title action, the trial judge entered an order dismissing the complaint. On appeal, plaintiffs contend:

POINT I: THE COURT ERRED IN ITS CONCLUSION THAT THE USE OF THE DISPUTED PARCEL WAS CONSENSUAL AND PERMISSIVE.

POINT II: THE COURT ERRED BY FAILING TO IDENTIFY THE APPLICABILITY OF THE "MISTAKE DOCTRINE" TO THIS MATTER.

POINT III: THE COURT ERRED BY CONCLUDING THAT THE APPELLANT'S USE OF THE DISPUTED PARCEL CONSTITUTED A MINOR ENCROACHMENT.

POINT IV: THE COURT ERRED IN FAILING TO EXERCISE ITS EQUITABLE POWERS AND APPLY THE "HARDSHIP DOCTRINE" REQUIRED IN THIS MATTER.

POINT V: THE COURT ERRED IN CALCULATING THE APPLICABLE PERIOD OF ADVERSE POSSESSION IN THIS MATTER.

POINT VI: THE COURT ERRED BY REWARDING THE INEQUITABLE CONDUCT OF THE RESPONDENT WHO ACTED UNILATERALLY AND OUTSIDE THE LAW DESPITE NOTICE OF THE APPELLANT'S ADVERSE POSSESSION CLAIM.

We have considered these contentions in light of the record, applicable law and the trial judge's findings of fact and conclusions of law, both of which are supported by his assessment of the evidence and legal principles. We are convinced the issues raised on appeal are of insufficient merit to warrant further discussion. R. 2:11-3(e)(1)(E). We add only that the plaintiffs' contention of adversity for the requisite time period required evidence relating to their predecessors-in-title's use of the disputed property. That evidence was presented through the testimony of the prior owners' daughter who expressed her understanding that in the late 1950's defendant's predecessor-in-title conveyed the property to her parents. As to that evidence, the trial judge made the following findings of fact and conclusions of law:

In addition to the testimony from Dr. Kellerman, which I'll refer to further, there was testimony from Suzanne Green, who is the daughter of May and James Dean. Her testimony was quite detailed and said she was very friendly with Mr. Blatherwick.

She attended grammar school in town and would pass his office and car showroom every day. And because she didn't have a grandfather, and he was estranged from her family, somehow they regarded each other as a grandfather and granddaughter - which relationship continued until she was about 13 and began going to high school.

During this time - which commenced, I guess, in or about 1957 - Blatherwick, Inc., which was then the owner of what is now the Osborne/Eckerd property - lot - lot 14 - was improved as property and the rear by, among other things, blacktopping.

As a part of that improvement, a retaining wall was put in and a chain link was installed atop it by Blatherwick. This fence and wall running - which runs parallel to the property line between the Osborne and Kellerman property presently - were the - those - that's (inaudible) - I'll try it again. The properties which are now the Osborne property and Kellerman property - is a recessed about ten feet from the common boundary line between the properties and then runs perpendicular to the Whitehorse Pike, away from the Kellerman property.

Her testimony was that during the construction process about 1957, Mr. Blatherwick, who was friendly with her parents, indicated that they could use the disputed parcel for planting and other purposes in order to buffer his operation -- that is the operation of his automobile business from the Dean home.

She testified that one day, about two years thereafter, when she was visiting him -- him, Mr. Blatherwick - he indicated to her that he would like to make the matter legal - whatever that meant - and as a result suggested that her mother pay him a dollar to complete the transaction - whatever that means - or whatever it meant then. She was not clear - she just merely repeated the words. She said that her Mom did give him a dollar and they shook hands.

Nothing further was said, nothing - no explanatory language on what deal if any was - that was supposed to represent. Clearly, there was no deed presented. There was no writing presented and there was no deed recorded. There was nothing to record title or to memorialize a transaction, or for that matter, what the transaction was.

So, about whether the deal - or whether the transaction was a - a conveyance, or whether it was simply the right to use, as they had in the past, the strip and to plant it and to - and to create a buffer - in other words a - a leasehold if you will, or an easement, or whatever - there was no language, there was no evidence, just what the Court has stated. That was her testimony. There was no evidence, clear and convincing, that Mr. Blatherwick intended to convey title to the Deans.

It is significant, however, that the 74 feet of frontage along Garden Avenue, which was acquired by Mr. and Mrs. Dean, in two distinct transaction[s] - one being in 1950 involving 44 feet of frontage and the second being in 1952 involving 30 feet of frontage, for a total of 74 feet - well memorialized. And there was a deed, from Blatherwick, Inc. to James E. Dean and May I. Dean.

Clearly, if it was the intent of Blatherwick - Mr. Blatherwick - to do that a third time for the dollar consideration - then he could have simply done what he had done before. Write it down and sign it. Or - to put it another way - a simple deed could have been prepared and executed and recorded - and of course, if that had happened, we wouldn't be here. But it was not.

. . . .

[I]t is clear from the testimony of Mrs. Green that the use of the disputed [parcel] was consensual and permissive. It wasn't adverse.

[Emphasis added.]

We are in no position to reach different findings and conclusions. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484 (1974).

Affirmed for the reasons set forth by Judge M. Allan Vogelson in his January 4, 2005, oral decision.

 

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A-3614-04T5

April 17, 2006