MARIE B. FOX, ROBERT KELLER et al. v. TOWNSHIP OF WEST MILFORD et al.

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
 
 
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3320-05T1

MARIE B. FOX, ROBERT KELLER
and BUCK MOUNTAIN ASSOCIATES,

Plaintiffs-Appellants,

v.

TOWNSHIP OF WEST MILFORD and
THE STATE OF NEW JERSEY, by the
NEW JERSEY DEPARTMENT OF
ENVIRONMENTAL PROTECTION,

Defendants-Respondents.

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December 27, 2006
____________________________________________________________

Argued December 5, 2006 Decided

Before Judges Coburn, Axelrad and R.B. Coleman

On appeal from the Superior Court of New Jersey,
Law Division, Passaic County, L-7670-97.
 
Morrill J. Cole argued the cause for appellants
(Cole, Schotz, Meisel, Forman & Leonard, attorneys;
Mr. Cole, of counsel and on the brief).

Robert H. Oostdyk, Jr., argued the cause for respondent Township of West Milford (Johnson, Murphy, Hubner, Mc Keon, Wubbenhorst, Bucco & Appelt, attorneys; Mr. Oostdyk, on the brief).

Caroline K. Stahl, Deputy Attorney General, argued the cause for respondent New Jersey Department of Environmental Protection (Stuart Rabner, Attorney General, attorney; Patrick DeAlmeida, Assistant
Attorney General, of counsel; Ms. Stahl, on the brief).

PER CURIAM
Plaintiffs sued defendant Township of West Milford for inverse condemnation. Following a bench trial, which resulted in a judgment for the municipality, plaintiffs appealed. Another panel affirmed all of the judge's findings of fact and all but one of his conclusions of law, but remanded the case to allow plaintiffs to implead a necessary party, the State of New Jersey. Fox v. Twp. of W. Milford, 357 N.J. Super. 123, 130-31 (App. Div.), certif. denied, 176 N.J. 279 (2003). After the State appeared in the action and argument occurred before another trial judge on the remand, judgment was again entered against plaintiffs, who now appeal once more. We affirm.
For our purposes, the key issue in the first appeal was the reasonableness of an easement plaintiffs owned running over the State's property. Id. at 128-130. If the easement provided plaintiffs with reasonable access to their property, plaintiffs' action for inverse condemnation was unsound. The problem at the time of the first appeal was that without the State as a party, the panel could not enter an effective judgment since the State would still be able to contest "the existence and scope of the easement . . . ."
Id. at 131. However, the panel's opinion clearly stands for the proposition that if the State agreed on remand to the existence and scope of the easement, the judgment should be confirmed. In that regard, the panel wrote as follows:
In remanding to the trial court for joinder of the State in order to permit a complete adjudication of the easement question, we note that plaintiffs challenge the court's findings with respect to the status and character of the roads in question. We find no merit in their argument. The findings were fully supported by the record, and we defer to them. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 484, 323 A.2d 495 (1974). Moreover, the court's choice of which expert to credit was entirely within its discretion. See, e.g., Balsamides v. Protameen Chemicals, 160 N.J. 352, 367-368, 734 A.2d 721 (1999); Borough of Wildwood Crest v. Smith, 235 N.J. Super. 404, 406 563 A.2d 48 (App. Div. 1988). The remand is thus not intended as an opportunity to relitigate the factual issues already decided except as the State's interest in the easement issue may be implicated. If the court adheres to its determination that plaintiffs have an adequate easement over State lands, it shall reaffirm its judgment dismissing the complaint.
 
[Id. at 131-32 (footnote omitted).]
Despite that clear language, and despite the State's agreement that it was bound by the easement found to exist in the first trial, plaintiffs argued below, and now argue here, that they are entitled to a plenary trial on the reasonableness of the easement. We disagree. Once an issue has been determined on the merits in a prior appeal, a party does not have the right to re-litigate the issue in a later appeal of the same case. In Deverman v. Stevens Builders, Inc., 35 N.J. Super. 300, 302 (App. Div. 1955), we expressed the proposition in this way:

It is not our function on this appeal to allow collateral review of the first decision of this Division but only to adjudge whether it has been complied with. The ruling on the first appeal is the law of the case. Hollister v. Fiedler, 30 N.J. Super. 203 (App. Div. 1954).

Here, the second trial judge fully complied with our remand. Once the State agreed to be bound by the easement as declared by the first trial judge, there was nothing else for him to do but enter judgment for West Milford. Moreover, after carefully considering the record and briefs, we agree with the prior panel's opinion confirming the reasonableness of plaintiffs' access and find plaintiffs' contrary arguments to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).
Affirmed.
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