EWING LOFTS AND STUDIOS, L.L.C. v. PINNACLE TOWERS L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

EWING LOFTS AND STUDIOS, L.L.C.,

Plaintiff-Appellant/

Cross-Respondent,

v.

PINNACLE TOWERS, L.L.C.,

Defendant-Respondent/

Cross-Appellant,

and

PUBLIC SERVICE ELECTRIC & GAS

COMPANY, a/k/a PSE&G, a subsidiary

of PUBLIC SERVICE ENTERPRISE GROUP,

and VERIZON, INC.,

Defendants-Respondents.

____________________________________

November 14, 2013

Argued: October 30, 2013 Decided:

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2627-10.

W. Scott Stoner argued the cause for appellant/cross-respondent (Schatzman Baker, attorneys; Mr. Stoner, on the briefs).

Gregory J. Czura argued the cause for respondent/cross-appellant.

Peter L. Agostini argued the cause for respondent Public Service Electric & Gas Company (Law Offices of William E. Frese, attorneys; Mr. Agostini, on the brief).

Sandra M. Iammatteo argued the cause for respondent Verizon, Inc. (DalCortivo Law Offices, LLC, attorneys; Ms. Iammatteo, of counsel and on the brief).

PER CURIAM

Plaintiff Ewing Lofts and Studios, L.L.C. appeals from three May 25, 2012 orders of the Law Division granting summary judgment to defendants Pinnacle Towers, LLC (Pinnacle), Public Service Electric and Gas Company (PSE&G), and Verizon New Jersey, Inc. (Verizon), and dismissing plaintiff's complaint. Pinnacle has filed a cross-appeal from the trial court's denial of its counterclaim for counsel fees. After reviewing the record in light of the contentions advanced on the appeal and cross-appeal, we reverse and remand.

Plaintiff's claims arise out of an easement granted by the Township of Ewing (the Township) to Nassau Broadcasting Partners, L.P. (Nassau) in December 1998. Nassau owned a parcel of land in the Township from which it broadcast radio programs. There was a 480-foot-high communications tower located on the property. Nassau also owned a three-story building (the Building) near the tower. The Building was used for the radio broadcasts and to store equipment.

Pursuant to a December 21, 1998 Agreement for Gift of Property (the Agreement), Nassau gifted the property to the Township. With regard to the tower and the property where it stood, however, the parties agreed that Nassau would retain "an easement for the space the tower occupie[d] and ingress and egress thereto[.]" The Agreement further provided that Nassau would "be permitted to continue to occupy such space on the third floor of the [B]uilding as is necessary for the placement, storage, operation, and maintenance of [its] communications and transmission equipment . . . ."

In accordance with the Agreement, the Township executed a Deed of Easement to Nassau. A metes and bounds description of the portion of the property subject to the easement was set forth in the deed. The deed also stated

that the Easement Area encompasses and includes all radio towers, wires, personalty, pipes, cables, wires, guywires, conduits, electrical and communication facilities and all other facilities currently on the premises and all necessary and required access to and from [the road adjacent to the property].

In a paragraph entitled "Purpose of Easement," the deed stated:

This instrument conveys to [Nassau] the unrestricted right to utilize the Easement Area in connection with its operation of a radio station or radio stations and communications tower, including the right to enter upon the Easement Area with personnel, machinery and equipment to maintain, repair, renew, relocate[] (within the Easement Area), redesign, inspect, alter, remove and replace all towers, facilities, pipes, cables, wires, guywires, conduits, electrical and communication facilities and any and all other equipment, materials of whosoever type and nature within, used or useful in the conduct of radio wave transmission and reception under and over, across and through the Easement Area, all as [Nassau] deems necessary and proper in furtherance of its operations as a radio station with auxiliary facilities.

[(Emphasis added).]

In a paragraph entitled "Rights of Entry," the parties further

acknowledge[d] and agree[d] that [Nassau], and all of [Nassau's] lessees or [licensees,] shall have, at all times, the right of temporary access and entry onto [the Township's] Lands for the purpose of repairing, installing, replacing or altering the facilities situated within the Easement Area. Such entry shall be limited to the purposes described herein, and all work or maintenance, repair or renewal shall be done by [Nassau] or its lessees or licensees at [Nassau's] or its lessees or licensees sole expense and shall be done with care. Any damage or disturbance to [the Township's] Lands shall be promptly repaired and restored at [Nassau's] sole cost and expense and shall not interfere with [the Township's] use of [the Township's] Lands.

In February 2000, Nassau conveyed its interest in the communications tower and the easement to Pinnacle. In December 2006, the Township conveyed the property, subject to Pinnacle's easement, to plaintiff.

In 2010, plaintiff filed separate complaints against Pinnacle, PSE&G, and Verizon.1 In its seven-count complaint against Pinnacle, plaintiff alleged that the communications tower was no longer being used to broadcast radio programs. Instead, Pinnacle was leasing space on the tower to a number of cellular service providers. These providers had placed their equipment on the tower and on the ground within and outside the easement area. Based upon its assertion that the easement was limited to the use of the tower and the property on which it was located for the operation of a radio station, plaintiff sought an order requiring Pinnacle to remove "all paraphernalia not related to the broadcast of radio programming from the tower" and the easement area.

Plaintiff also sought money damages for Pinnacle's alleged violations of the easement. In addition to its claim that Pinnacle's use of the tower exceeded the terms of the easement, plaintiff alleged that Pinnacle and its lessees were entering the easement area without notice and at unreasonable hours, that equipment was being installed without required permits, and that debris was falling off the tower onto plaintiff's property. Plaintiff also asserted that Pinnacle was using portions of the Building not covered by the easement and that it had rented space in those parts of the Building to other entities.

In its complaint against PSE&G, plaintiff alleged that PSE&G installed new utility poles on plaintiff's property without its consent and ran wires over plaintiff's property for the purpose of providing service to Pinnacle and its lessees within the easement area. In its complaint against Verizon, plaintiff alleged that Verizon had improperly placed cable or fiber optic lines "over, through and/or underground on plaintiff's property" in order to service Pinnacle and its lessees. With regard to both PSE&G and Verizon, plaintiff sought an order requiring them to remove their lines and equipment from plaintiff's property and money damages.

Pinnacle, PSE&G, and Verizon filed motions for summary judgment, generally arguing that their activities were permitted by the express terms of the easement. Plaintiff opposed the motions. On September 26, 2011, the trial judge issued a written decision denying the motions because there were disputed issues of material fact. The judge stated:

Here, all parties agree that the easement in question is binding. However, there is disagreement as to whether the "cellular" and other equipment on the tower is permissible under the language of the easement; i.e., whether the cellular equipment in issue is equipment for the purpose of "radio wave transmission and reception" and is "necessary and proper in furtherance of . . . operations as a radio station with auxiliary facilities," such that it is permissible under the easement. Such questions constitute a genuine issue of material fact under Brill, and are not ripe for summary judgment, as this Court cannot, under the summary judgment standard, define the parameters of "radio wave transmission and reception" or determine whether cellular equipment is "necessary and proper in furtherance of . . . operations as a radio station with auxiliary facilities."

[(Alterations in original).]

With regard to plaintiff's claims against PSE&G and Verizon, the judge stated:

[T]here are issues of fact pertaining to whether the new telephone poles and power lines installed by [PSE&G] are within the bounds of the easement, and if such equipment is not within the easement, whether [p]laintiff consented to the installation [of] that equipment. Finally, there are questions of fact pertaining to [Verizon] as to what equipment has been installed over [plaintiff's] property and whether such equipment is permissible under the easement in terms of both the equipment itself and the location of the equipment on the property.

Although the judge identified a number of factual issues that could not be determined merely by an examination of the terms of the easement, at a subsequent case management conference the judge "suggested to everyone that if they had additional materials to file that I had considered the last time to refile them, either by way of a motion for reconsideration of my prior decision or as another summary judgment motion." Pinnacle, PSE&G, and Verizon accepted this suggestion and filed motions for reconsideration, which were opposed by plaintiff.

In these submissions, the parties submitted certifications in addition to the Agreement and Deed of Easement. Pinnacle submitted a certification prepared by Timothy Smith, Esq., who had represented Nassau at the time the easement documents were drafted and executed. He stated that, at the time Nassau gifted the property to the Township and retained the easement, there were already seventeen leases of space on the tower, including three cellular operators. Smith stated that the Township was well aware of these leases and that

it was always abundantly clear to the attorneys and the parties that [Nassau] intended and was permitted to continue its activities as the owner and operator of a communications tower facility at this property with the unfettered right to add additional tenants engaged in any communication activity requiring space on a tower. It was also intended that Nassau would have the unfettered right to have power and telephone service for its use and that of its tenants wherever then located on the premises.

PSE&G submitted a certification by one of its engineering technicians, Daniel Foehr. He stated that PSE&G had maintained three utility poles on plaintiff's property for the past seventy years. When Pinnacle asked for an upgrade of services for its tower, PSE&G came to the scene to replace the poles. Foehr stated that plaintiff's representative, Jon Drezner, asked Foehr to relocate the poles to a new location on plaintiff's property. Thus, Foehr believed the poles were permitted by the easement and, if not covered by the easement, could be placed on plaintiff's property based on Drezner's consent.

Verizon did not file a certification. Its consistent position has been that this is a dispute between plaintiff and Pinnacle and that it would abide by whatever the court decided. However, Verizon continued to argue that its lines and equipment had been on the property for years and were permitted by the easement.

Plaintiff submitted several certifications in opposition to defendants' motions. Charles Allen, Jr., Esq. represented the Township in connection with Nassau's gift of the property in 1998. He stated that "[a]s part of the transaction, the donor would retain an existing tower and space in the [B]uilding. It was my understanding that these would be used for the donor's existing radio station." The Township's business administrator, Fred Walters, certified that he understood the tower would only be used by Nassau "for the purpose of continuing its operations as a radio station." Walters also stated that "Nassau did not advise us of its cellular devices on the tower, and did not request any accommodation for such devices."

Edward Schober, an engineer retained by plaintiff, prepared a report concerning the operation of the tower. Schober stated he visited the tower in 1998 and found no evidence that it was being used by cellular service providers. He stated there were "a small number of additional antennas on the tower (less than ten) which would have been consistent with being Auxiliary Broadcast Remote Pickup stations," rather than antennas for cellular service providers. He inspected the tower in 2012 and found that the radio station antenna at the top of the tower had been abandoned and there was no operating radio station equipment in the Building. Instead, the tower had "been substantially modified to serve as a cell tower, a use not contemplated by the easement, especially since the stated use in the easement has been abandoned."

Schober also stated that a fence surrounding the tower "exceed[ed] the metes and bounds of the easement area, based upon reviewing the surveys of the site." There were also additional structures and equipment on the ground near the tower that had not been there in 1998. Schober observed "a steel nut with the broken threaded portion of a bolt" that had fallen from the tower onto plaintiff's parking lot outside the easement area. Schober also noted that additional "power poles" had been placed on plaintiff's property to service Pinnacle and its lessees.

Finally, Drezner certified on behalf of plaintiff that activity at the site dramatically increased after Pinnacle acquired the easement. When it obtained the property from the Township, plaintiff's understanding was that the tower was used solely for radio station broadcasts. Since that time, however, Drezner stated that numerous cellular antennas had been placed on the tower and construction crews and other service providers came to the property throughout the day and night. He certified "[t]here have been limitless installations [of equipment] on our property" by Pinnacle's lessees and he did not know whether any permits were obtained to permit this work. He also stated that the fence around the tower was on his property; that debris and ice fall from the tower onto plaintiff's property; and that Pinnacle or its lessees continually cut the locks placed by plaintiff on the security gates surrounding its property.

Despite the obvious factual issues raised by the parties' competing certifications and reports, the trial judge granted summary judgment to Pinnacle, PSE&G, and Verizon and dismissed plaintiff's complaint. While the judge stated in his May 25, 2012, oral opinion that he had reviewed all of the certifications, he did not make any specific findings concerning them. Instead, he remarked, "It's all about the definition of the easement" and based his decision upon his interpretation of that document. The judge stated, "I myself, as well as Mr. Smith [Nassau's attorney at the time of the 1998 Agreement], who submitted a certification . . . in this motion, I find that there exists no ambiguities whatsoever in this easement . . . about . . . what the rights are in this particular case." He read portions of the easement and found that it provided a broad and unfettered right of access to Pinnacle to the easement area. He also found that the easement's use of the term "communications tower," and the inclusion in the deed of language indicating that Nassau's "lessees and licensees" had the right to temporarily access the property for the purpose of installing or repairing equipment, meant the easement was never intended to be limited solely to permit the tower to be used for radio broadcasts. In this regard, he found that a number of "communications entities" were already on the tower at the time Nassau gifted the property to the Township.

The judge did not make any findings concerning plaintiff's claims that, even if the easement permitted the tower to be used by cellular service providers, Pinnacle had violated the easement by erecting a fence and other structures on its land, trespassing on its land, and permitting debris to fall from the tower onto its property. The judge also made no specific findings concerning plaintiff's claims against PSE&G and Verizon. Instead, the judge stated:

These are the facts as [have] been presented to me, and the facts as - - and I will incorporate into my decision the facts as presented by [plaintiff's attorney] in his certifications, in his briefs. I'll incorporate his language, his law, including the certifications of Mr. Allen and Mr. Walters . . . and I will incorporate the legal argument provided by [Pinnacle's attorney] as part of my decision as to why I've said it myself and essential[ly] will end up reading it into the record in granting the summary judgment motions as filed by Verizon, PSE&G, and [Pinnacle].

The judge denied Pinnacle's counterclaim for counsel fees without any explanation of his reasons for this decision.

On May 25, 2012, the judge entered orders granting defendants' motions for summary judgment, dismissing plaintiff's complaints with prejudice, denying Pinnacle's counterclaim for counsel fees, and enjoining plaintiff "from interfering with Pinnacle and its [tenants'] quiet enjoyment of its property as and in accordance with the Deed of Easement." Plaintiff appeals from all three orders and Pinnacle has appealed from the judge's denial of its request for counsel fees.

On appeal, plaintiff argues the judge erred in granting summary judgment because there were disputed issues of material fact. Pinnacle argues the judge erred in denying its request for counsel fees. Because the judge did not make adequate findings of fact and conclusions of law dealing with all of the issues raised by the parties, we are constrained to reverse and remand for further proceedings.

When reviewing an order for summary judgment, we utilize the same standard as the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where "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." R. 4:46-2(c). When determining whether there is a genuine issue of material fact, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The trial judge's obligation to fully explain his or her ruling is clear:

In support of an order granting summary judgment, a judge is required to detail the findings of fact and conclusions of law in a written or oral opinion. R. 1:7-4(a); R. 4:46-2(c). A motion judge is obligated "to set forth factual findings and correlate them to legal conclusions. Those findings and conclusions must then be measured against the standards set forth in [Brill, supra, 142 N.J. at 540]." Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 498 (App. Div. 2000). Neither the parties nor the appellate court is "well-served by an opinion devoid of analysis or citation to even a single case." Ibid.

[Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 299-300 (App. Div. 2009)].

In this case, the resolution of defendants' summary judgment motions depended on the trial judge's interpretation of the language of the easement agreement - - usually a matter of law, suitable for decision on a motion for summary judgment. Spring Creek Holding Co., Inc. v. Shinnihon U.S.A. Co., Ltd., 399 N.J. Super. 158, 190 (App. Div.), certif. denied, 196 N.J. 85 (2008). Courts usually enforce contracts as written. Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960). However, when a contract is ambiguous in a material respect, summary judgment is unavailable and the parties must be given the opportunity to illuminate the contract's meaning through the submission of extrinsic evidence. Conway v. 287 Corporate Ctr. Assocs., 187 N.J. 259, 268-270 (2006). A contract is ambiguous if its terms are "susceptible to at least two reasonable alternative interpretations." Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997) (quoting Kaufman v. Provident Life & Cas. Ins. Co., 828 F. Supp. 275, 283 (D.N.J. 1992), aff'd 993 F.2d 877 (3d Cir. 1993)).

In attempting to resolve ambiguities in a document, courts may consider extrinsic evidence. While such evidence should never be permitted to modify or curtail the terms of an agreement, a court may "consider all of the relevant evidence that will assist in determining the intent and meaning of the contract." Conway, supra, 187 N.J. at 269. As the Court explained in Conway,

[e]vidence of the circumstances is always admissible in aid of the interpretation of an integrated agreement. This is so even when the contract on its face is free from ambiguity. The polestar of construction is the intention of the parties to the contract as revealed by the language used, taken as an entirety; and, in the quest for the intention, the situation of the parties, the attendant circumstances, and the objects they were thereby striving to attain are necessarily to be regarded. The admission of evidence of extrinsic facts is not for the purpose of changing the writing, but to secure light by which to measure its actual significance.

[Ibid. (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301-02 (1953)).]

To grant summary judgment regarding the terms of the easement, and especially the meaning of the phrase therein that gave Pinnacle the ability to utilize the easement area "in connection with its operation of a radio station or radio stations and communications tower . . . in furtherance of its operations as a radio station with auxiliary facilities," the trial judge had to conclude that the easement permitted only one plausible interpretation and that that single plausible interpretation one-sidedly favored defendants' positions. Brill, supra, 142 N.J. at 540. Here, however, the parties presented two plausible explanations of the critical language in the easement. Plaintiff argued the language permitted Pinnacle to use the structure solely for radio broadcasts, while Pinnacle asserted that the easement was broad enough to encompass many other uses, including the placement of antennas for cellular providers on the tower. In his September 26, 2011 decision denying defendants' motions for summary judgment, the judge recognized this ambiguity and found he could not resolve the matter on the record before him because the facts were in dispute.

Consistent with the Supreme Court's decision in Conway permitting the submission of extrinsic evidence to assist in the interpretation of a document, the judge thereafter properly asked the parties to supplement their original summary judgment motions and refile them as motions for reconsideration in an attempt to resolve the matter. However, the certifications submitted by the parties did nothing to close the wide gap between the parties' divergent factual positions.

On the one hand, Smith's certification asserted that the tower was already being used for cellular company tenants at the time of the gift of the property to the Township and that the Township was fully aware of this fact. These assertions were sharply disputed by Allen and Walters, who both claimed the Township was completely unaware that the tower was being used for anything other than radio broadcasts or that there were any cellular devices on the tower. Schober stated that he found no such devices when he visited the tower in 1998. The certifications further revealed there was a dispute as to whether plaintiff agreed to have PSE&G place new power poles on its property; whether defendants were trespassing on plaintiff's property that was outside the easement area; whether debris was falling from the tower onto plaintiff's property; and whether portions of the Building not covered by the easement were being used by Pinnacle and its lessees.

Once these clear factual disputes were revealed, the trial judge was required to make detailed findings of fact addressing them. If the parties' conflicting positions on the material facts could somehow be reconciled to permit the consideration of the summary judgment motions, the judge was obligated to explain in detail how they were resolved. The judge failed to meet this obligation here. Indeed, rather than expressly setting forth the facts which led to his decision, the judge stated he was incorporating all the facts set forth in plaintiff's certifications and motion brief, and the legal arguments provided by Pinnacle's attorney, into his decision.

Such an approach does not constitute adequate fact finding. In In re Trust Created by Agreement Dated Dec. 20, 1961, we stated:

[A] judge may grant or deny a new trial motion for the reasons posited by the parties rather than issue a statement of its grounds, as long as the judge makes such reliance explicit. The purpose of the rule is to make sure that the court makes its own determination of the matter.

[ 399 N.J. Super. 237, 253-54 (App. Div. 2006) (citations and internal quotation marks omitted), aff d, 194 N.J. 276 (2008).]

In that case, we concluded that the trial judge had not erred by adopting the proposed findings and conclusions submitted in a brief of one of the parties. Id. at 254. The judge "made clear the extent of his agreement with and reliance on [the] proposed findings of fact and conclusions of law," and "supplied a summary of his findings in his oral opinion," which "provide[d] clear evidence that the trial judge carefully considered the evidentiary record and did not abdicate his decision-making responsibility." Ibid.

Here, on the other hand, the trial judge merely adopted plaintiff's factual contentions and Pinnacle's legal arguments in response. The judge did not identify which aspects of plaintiff's factual assertions or Pinnacle's arguments it was adopting, make clear the extent of his agreement with and reliance on those facts and arguments, or clearly set forth his reasons for adopting them. As a result, we have no way of knowing why the judge determined to grant summary judgment. Moreover, the facts set forth in plaintiff's certifications, if accepted as true, supported its theory that the easement was limited to the use of the property for a radio station and detailed the many ways in which defendants had violated the easement by trespassing onto its property. Absent any explanation of his rationale, we cannot agree with the trial judge's decision to resolve the interpretation of the easement issues by way of summary judgment.

The judge also erred by determining that a resolution of the meaning of the easement resolved all of plaintiff's contentions. Even assuming the easement permitted Pinnacle to use the tower for cellular service activities, that was only part of plaintiff's complaint. The easement specifically required Pinnacle and its lessees to perform any work in the easement area "with care." If "[a]ny damage or disturbance" was caused to plaintiff's property, the easement stated the damage must "be promptly repaired and restored at [Pinnacle's] sole cost and expense and shall not interfere with [plaintiff's] use of [its] [l]ands." Plaintiff argued that it was entitled to damages under this provision of the easement because, among other things, Pinnacle put a fence outside the easement area on plaintiff's property, permitted its lessees and service providers to go on plaintiff's property and use other portions of the Building, and failed to ensure that debris from the tower did not fall outside the easement area. The trial judge made no findings of fact concerning any of these allegations, which were plainly raised by plaintiff in its complaint and certifications.

The judge also did not squarely address plaintiff's contentions against PSE&G and Verizon. Again, even if the easement permitted the two utility companies to access the easement area, plaintiff still alleged they both improperly placed wires and other equipment on plaintiff's property without its permission. Because the judge made no findings of fact concerning these allegations, the decision to grant summary judgment to PSE&G and Verizon cannot be sustained.

Finally, we are also unable to review the issues raised by Pinnacle's cross-appeal. The judge denied Pinnacle's request for counsel fees, but again made no findings of fact or conclusions of law in support of this decision.

In sum, Rule 1:7-4(a) "requires specific findings of fact and conclusions of law . . . ." Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2014). The Supreme Court has expounded on this essential obligation:

Failure to perform that duty constitutes a disservice to the litigants, the attorneys and the appellate court. Naked conclusions do not satisfy the purpose of [Rule] 1:7-4. Rather, the trial court must state clearly its factual findings and correlate them with the relevant legal conclusions.

[Curtis v. Finneran, 83 N.J. 563, 569-70 (1980) (citation and internal quotation marks omitted).]

Because the trial judge failed to provide the findings of fact and conclusions of law required by Rule 1:7-4(a), the orders granting summary judgment to defendants, and denying Pinnacle's request for counsel fees, must be reversed.

Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.

1 On March 18, 2011, the three complaints were consolidated under a single docket number.