ROBERT J. SCHAFFHAUSER v. CROWS MILL TRUST, and JAMES PAUL SABO et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1134-03T51134-03T5

ROBERT J. SCHAFFHAUSER,

Plaintiff-Respondent,

v.

CROWS MILL TRUST, and

JAMES PAUL SABO and

BARBARA SABO,

Defendants-Appellants.

______________________________________________________________

 
Argued Telephonically: September 28, 2005 - Decided January 17, 2006

Before Judges Kestin and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity Part, Somerset County, C-12026-01.

James Paul Sabo argued the cause for appellants pro se.

Richard A. Rafanello argued the cause for respondent (Shain, Schaffer & Rafanello, attorneys; Roy S. Gutterman, on the brief).

PER CURIAM

Defendants Crows Mill Trust (the Trust), James Paul Sabo and Barbara Sabo, appeal from a declaratory judgment that was entered following a nonjury trial before Judge Roger F. Mahon in the Chancery Division, Somerset County. The judgment determined that under an easement agreement affecting properties at Washington Corner Road, Bernardsville, more particularly described as Lot 10 and Lot 19, Block 20, plaintiff Robert J. Schaffhauser has the right to pave the common driveway utilized by the parties. We affirm.

In February 1987, Michael W. Lyons, then owner of Lot 10, Block 20, at Washington Corner Road, Bernardsville, as grantor, entered into an Easement Agreement (Agreement) with Michael W. Lyons, Inc. as grantee, granting two easements and rights-of-way over, on, along and under a portion of grantor's property to grantee. Those two easements are for access and driveway and for utilities. The grantee was the owner of the adjacent landlocked property at Lot 19, Block 20. The Agreement was recorded on February 10, 1987. The Agreement reserved to the grantee the right "to construct, reconstruct and maintain said areas as and for an easement to provide passage by foot and vehicle to and from Washington Corner Road and grantee's property known and designated as Lot 19 in Block 20." The Agreement further stated that:

Repairs, maintenance and upkeep required with respect to the easement and right-of-way grants herein shall be borne by the respective owners of Lot 10, Block 20 and Lot 19, Block 20 as follows:

(a) Each owner shall pay 50 percent of the cost of repairs, maintenance and upkeep for that portion of the driveway which is common to both their properties and the owner of Lot 19 in Block 20 shall pay 100 percent of the cost of repairs, maintenance and upkeep for that portion of the Access and Driveway Easement which exclusively services said Lot 19 in Block 20.

. . . .

(d) Repairs and maintenance to be undertaken and performed shall include filling of holes, resurfacing, regraveling, snow, leaf and debris removal and any other repairs and maintenance required to maintain the said driveway in good, functional condition for its intended driveway usage.

The easements were "granted in perpetuity" and are "deemed to be and shall be continuing covenants and easements running with the land and inure in favor of and bind the successors and assigns of the grantor and grantee."

In 1990, plaintiff and his wife, now deceased, purchased the grantee's lot, Lot 19, and moved into the house located thereon. In 1994, defendants James Sabo and Barbara Sabo purchased the servient easement lot, Lot 10, and built a dwelling thereon. Sometime thereafter, they created the Trust for tax planning purposes and title to Lot 10 was transferred to the Trust. The Sabos continue to reside in the dwelling on the lot.

Immediately after defendants moved in, plaintiff asked them to consider paving the driveway and sharing the costs. After both parties received estimates, defendants refused to consent to the paving of the driveway. They took the position that the agreement expressly provides for regraveling and does not provide for or contemplate the paving of the driveway. Consistent with that position, on several occasions from 1994 to 2000, without plaintiff's prior consent and over his objection, defendants authorized the replacement of gravel stone to maintain the common driveway and billed plaintiff for half the cost. Plaintiff contends that the gravel stone is continually swept away by the elements, due in part to the topography of the easement and the nature and number of vehicles traveling the common driveway. Plaintiff further alleged that as a result of the gravel being swept away, the driveway is regularly in a state of disrepair and erosion that impedes his ingress and interferes with his enjoyment of the easement and access to his property. Accordingly, it is plaintiff's position that replacing the stone is an unacceptable manner of maintaining the driveway and that it should be resurfaced.

On May 25, 2001, plaintiff filed a complaint against defendants, seeking a declaratory judgment that plaintiff has the right to pave the driveway and to take whatever other reasonable steps are necessary to forestall erosion and eliminate recurring disrepair. Plaintiff also sought an order that, pursuant to the easement agreement, defendants are required to pay fifty percent of the cost of paving as well as any further repairs, maintenance or upkeep.

Defendants James and Barbara Sabo initially proceeded pro se in the action and the Trust was represented in the action by a law firm, but eventually the Sabos also retained the same law firm. In June 2002, shortly before the matter was then scheduled for trial, the court heard a motion filed by the law firm to be allowed to withdraw as counsel for defendants due to a fee dispute. Defendants opposed the law firm's application, accusing it of abandoning its clients. At that time, the trial court denied the requested relief, but in August 2002, the court granted leave to the law firm to withdraw. Thereafter, defendant James Sabo appeared pro se and represented himself, his wife, and the Trust. The court was of the view all the defendants' interests were identical and that the Trust was the Sabos' alter ego. Therefore, the Trust was not required to retain separate counsel.

At the trial, which took place over seven nonconsecutive days between November 6, 2002 and April 29, 2003, plaintiff called as an expert witness, Donald P. Schlachter, a licensed professional engineer with significant knowledge and experience in the design and composition of private driveways, as well as knowledge and experience in soil erosion and water runoff. Schlachter testified that the gravel driveway was inferior in terms of function and it was unsafe. Other witnesses also testified to the unsafe and hazardous nature of the gravel and crushed stone driveway during the wet and snowy seasons. On their case, defendants called Bruce Rickard, a home inspector, as an expert witness. He testified that the driveway was well maintained and that "it did not appear to be a very hazardous driveway to drive."

On September 24, 2003, Judge Mahon rendered an oral opinion in open court setting forth his findings of fact and conclusions of law. The judge found plaintiff's expert Schlachter to be "quite credible and convincing." In comparing the training and experience of the two expert witnesses, the court found the background of Schlachter far more relevant than the background of Rickard. He also found defendant Sabo was not a credible witness.

The evidence disclosed that the driveway is approximately 750 feet long, serpentine in shape and in areas steeply sloped. It has a fourteen percent slope for the first twenty-five to fifty feet beginning at the entrance of the driveway from Washington Corner Road, and it changes to approximately a twelve percent slope for the next 350 feet. There are no lights on the driveway and trees are close to the edge.

The judge recounted, in substantial detail, the problems presented by the gravel stone surface of the driveway and the advantages that pavement offers. Those problems and advantages included the following:

Again, I found [Schlacter's] conclusions based upon these standards and his testimony to be credible.

Washout causes the driveway to become dysfunctional or nonfunctional in that the driveway relies upon the gravel to reinforce the soil underneath so that it can handle the weight of vehicles traversing it. When stone washes away, the bare wet soil does not have structure left to resist the tire, making it difficult to stop on the driveway. When gravel in the driveway washes out onto Washington Corner Road, it can cause safety problems because gravel is slippery on a paved road.

Conversely, when a steeper driveway is paved, asphalt will not wash out or have the potential to wash out the way the gravel does. Defendant's expert witness, Bruce C. Rickard, also acknowledged this fact.

The structure of the stone driveway is not capable of supporting as much weight as an asphalt surface, thereby giving it less ability to support emergency vehicles using the driveway. Emergency vehicles, because they are larger and heavier, would also displace more stone in both dry and wet conditions. The gravel driveway has a potential weakness in providing continually appropriate access for emergency vehicles.

There are also problems with gravel driveways from a snow removal and ice prevention standpoint. Snow removal is difficult because the stones are friable. The stone is removed by snow plows. With respect to ice prevention, deicing material will seep through the stones and leave the surface unprotected allowing ice to form.

Asphalt does not have these undesirable characteristics. Snow removal with mechanical equipment is easier and more thorough because asphalt will not be removed by the snow plow. Ice preventative materials can be spread on the surface and remain there because asphalt is impervious.

Asphalt is superior to gravel, especially in the case of the easement driveway with its steep slope and large amount of runoff, because it is more reliable in providing a proper, safe and stable surface, whereas gravel is not.

Asphalt is also more practical in terms of maintenance. Approximately one quarter of the stone driveway, according to the testimony, must be replaced annually, giving the gravel driveway a useful life of approximately four years, whereas an asphalt driveway has a useful life of no less than 20 years. This makes the overall cost of maintenance over the useful life of the asphalt driveway less than the gravel surface.

In addition to identifying those advantages of paving over regraveling, the trial court concluded that "under the explicit terms of the [A]greement[,] it is [in plaintiff's] discretion to decide whether to pave the easement driveway and to decide how it should be maintained in the future." In reaching that conclusion, the court made the following observation:

I agree with plaintiff's position that by distinguishing in the agreement between regraveling and resurfacing, the intention was not to bind the property owners to a type of driveway which proved to be inadequate as is the case with the gravel driveway here. Indeed, as previously noted, there is an engineering distinction between the two terms. Resurfacing means to put a new surface on the road, not necessarily the one that was there before, whereas regraveling simply means to add stone.

The trial court concluded that "the evidence has established that the driveway is unsafe in its current condition[.] This is not a matter of convenience, but rather a reasonable necessity under all of the circumstances." Hence, the court entered judgment in favor of plaintiff to permit him to pave the driveway.

In this appeal, defendants argue that the trial court committed several procedural errors: that the Trust, which owns the property on the servient tenement, should not have been allowed to be represented pro se; that defendants' former attorney's representation constituted ineffective assistance of counsel; that the trial court did not reasonably accommodate defendant Sabo for his hearing impairment; and that the trial judge was required to recuse himself but failed to do so.

We do not find that any of those asserted errors has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). Nevertheless, we add a few brief observations.

The appearance of the Trust without a licensed attorney was permissible where the interests of the plaintiffs and the Trust were identical. See Jardine Estates, Inc. v. Koppel, 24 N.J. 536, 541 (1957) (where the Court remarked "[t]here is little justification for [voiding a judgment] when the court was induced by the plaintiff in interest [a wholly-owned family corporation] to permit [its principal] to proceed in its behalf without being obliged to secure a licensed attorney. This is especially so since [the individual] and [the entity] are for all practical purposes one and the same . . . .").

With respect to the charge regarding Mr. Sabo's hearing impairment, we are satisfied from our review of the record, that the court provided reasonable accommodations for defendant's hearing impairment. When defendant initially complained about his inability to hear very well, the trial judge turned up the volume on the speakers in the courtroom. When defendant further complained, the trial judge ordered the placement of a "real-time" computer monitor showing what was being said in court. The trial court endeavored to provide and did provide reasonable and equal access to defendant during trial. See Hall v. St. Joseph's Hosp., 343 N.J. Super. 88, 106 (App. Div. 2001).

Defendant's substantive argument on this appeal is likewise lacking in merit. Defendant argues that the trial court failed to follow the holding in Hyland v. Fonda, 44 N.J. Super. 180 (App. Div. 1957), when it concluded that plaintiff should be permitted to pave the easement driveway. Additionally, defendant argues that the trial court's findings of fact were not based on sufficient or substantial credible evidence.

When an error in the factfinding of a judge is alleged, the scope of appellate review is limited. The appellate court will only decide whether the findings made could reasonably have been reached on "sufficient" or "substantial" credible evidence present in the record, considering the proof as a whole. State v. Locurto 157 N.J. 463, 470-71 (1999); Pascale v. Pascale, 113 N.J. 20, 33 (1988); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). Further, this court must give "due regard" to the ability of the factfinder to judge credibility. Close, supra, 44 N.J. at 599. Here, the trial judge relied heavily on his assessment of the credibility of the witnesses. We give substantial deference to those assessments. Beyond that, the testimony of the witnesses furnished a substantial and credible basis for the court's findings of fact.

Also, Hyland, supra, is factually distinguishable from this case. In Hyland, the servient landowner sought to enjoin defendant, the dominant landowner, from widening and paving an easement driveway comprised of dirt and stone, used solely by the defendant. Hyland, 44 N.J. Super. at 184. The portion of the easement driveway used in common by the parties was already paved, and the defendant's attempt to pave the entire driveway was undertaken even though the defendant had never maintained or repaired the easement. Ibid.

The trial court held that the defendant had the right to pave the easement driveway because paving it "would come under the heading of repair." Id. at 186. Reversing the trial court, this court indicated that support for that conclusion was lacking both in the language of the agreement and in the circumstances of the parties. Id. at 188. Hyland did not proscribe the pavement of a roadway access along the easement, either generally or in that particular case. Rather, we stated:

[W]hen there is any ambiguity or uncertainty about an easement grant, the surrounding circumstances, including the physical conditions and character of the servient tenement, and the requirements of the grantee, play a significant role in the determination of the controlling intent.

[Id. at 187 (citations omitted).]

In Hyland, we expressly qualified our ruling to require that any proposed change be within the contemplation and intention of the grantor and not be more burdensome on the servient estate than reasonably necessary:

[T]he servient tenement will not be burdened to a greater extent than was contemplated or intended at the time of the creation of the easement . . . and the use of the easement must not unreasonably interfere with the use and enjoyment of the servient estate.

We are not to be understood as implying that any portion of the 25-foot strip is exempt from potential future use by the dominant tenant if at some time it is reasonably necessary for convenient roadway access under the circumstances then existing. We hold only that such circumstances do not now exist and that the permissible user [sic] at this time does not extend to an area exceeding the physical area of the heretofore existing roadway.

[Id. at 189 (citations omitted).]

We were clear in Hyland that the holder of the dominant estate may perform any work on an easement that is reasonably necessary. Id. at 190. The defendants in Hyland simply failed to satisfy their burden of proof:

[D]efendants did not show such reasonable attempts to repair and use the roadway in its existing character, before undertaking to pave it, as justifies under all circumstances, including the prospective impact upon [the] plaintiffs' rights, a conclusion that such paving was necessary to afford defendants the roadway access that was fairly in contemplation when the grant was created.

[Id. at 192.]

Here, the parties maintained or repaired the easement driveway for a ten-year period from 1994 to 2004. The grantee in the present matter, unlike the Hyland grantee, expended considerable sums of money and effort to regrade and regravel the easement driveway. When the rain or snow washed out the gravel, the parties gathered the washed-out gravel and tried to regravel the easement driveway. Plaintiff's experience, after repeated attempts, was consistent with his expert's opinion, that the regrading and regraveling of the steeply sloped driveway was futile and that the easement driveway could not be reasonably maintained in good and safe condition without paving the surface.

The trial judge, reading the Agreement in this case as a whole, concluded that the intent of the original grantor was unambiguous. The Agreement grants to the grantee the right to construct and resurface, in addition to regravel, the easement driveway. Moreover, the evidence established that the easement driveway in this case was shown to be unsafe for the users on the property and for the public.

The trial court concluded that it was reasonably necessary to pave the easement driveway. That conclusion was based on the credible and convincing testimony of expert and non-expert witnesses produced by plaintiff. Witnesses for plaintiff testified that their vehicles were unable to gain reasonable access to plaintiff's residence because the cars slid backwards when snow or water covered the steep slope, and that vehicles had to drive cautiously down the driveway to prevent sliding uncontrollably out onto Washington Corner Road as a result of washed out gravel. As to defendant's testimony, the trial court found it to be not credible because he was "very evasive during cross-examination and he was clearly trying to minimize real problems with the driveway."

 
We affirm for substantially the reasons set forth in the well reasoned and thorough oral opinion of Judge Mahon.

(continued)

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A-1134-03T5

January 17, 2006