KATHERINE BLEKICKI v. GREGORIO SPINELLI

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4619-05T54619-05T5

KATHERINE BLEKICKI,

Plaintiff-Respondent/

Cross-Appellant,

v.

GREGORIO SPINELLI,

Defendant-Appellant/

Cross-Respondent.

 
____________________________________

Argued March 8, 2007 - Decided June 12, 2007

Before Judges Parrillo and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Chancery Division, Morris County,

C-179-04.

Laurie Rush-Masuret argued the cause for appellant/cross-respondent.

John M. Mills III argued the cause for respondent/cross-appellant (Mills & Mills, attorneys; Mr. Mills, on the brief).

PER CURIAM

This is an appeal and cross-appeal from orders of the
Chancery Division denying defendant Gregorio Spinelli counsel fees and costs pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1(a)(1), and Rule 1:4-8, and denying reimbursement for costs he incurred to remove a brick wall and barbecue pit encroaching upon his property. Plaintiff Katherine Blekicki cross-appeals the court's denial of her application for counsel fees and costs.

Judge MacKenzie denied defendant's claim for counsel fees and costs, finding that plaintiff, in good faith, believed that the encroachments were "grandfathered" and therefore exempt from removal. In addition, the judge determined that because defendant resorted to self-help to remove the encroachments while the dispute was pending, he was not entitled to reimbursement for costs he incurred to remove the encroachments. In denying counsel fees and costs to plaintiff, the court found that plaintiff failed to establish any damages. We affirm both the appeal and cross-appeal.

The salient facts are not disputed. Defendant purchased the property located at 6 Bradley Road, Morris Township, in 2003. The property survey noted the existence of a barbecue pit and a brick wall that encroached on the property by approximately two and one-half feet. The seller's disclosure statement did not indicate that the adjacent property owner asserted or threatened to assert a claim of right over that portion of defendant's property where the barbecue pit and wall encroached.

Shortly after taking possession, defendant commenced discussions with plaintiff about his intention to remove the encroachments because of his landscaping plans. According to defendant, plaintiff agreed with his plans but did not take any action to remove the encroachments. Defendant offered to sell to plaintiff a portion of his land, which would include the area where the barbecue pit and brick wall were located, but plaintiff declined the offer.

In April 2004, defendant secured estimates to have the brick wall and barbecue pit removed ranging from $1,400 to $2,200. Plaintiff advised defendant that she felt the estimates were too high and told defendant that she and her sister would remove the encroachments. According to defendant, following this discussion, rather than removing the encroachments, plaintiff avoided him, causing him to seek resolution by way of written correspondence in June 2004. Plaintiff did not respond to this correspondence.

Two months later, defendant's attorney sent a letter to plaintiff requesting that she remove the encroachments. Plaintiff's attorney responded to this correspondence, indicating that plaintiff wanted to secure her own survey of the property. Plaintiff's survey also revealed that the barbecue pit and brick wall encroached onto defendant's property. Subsequent to that survey, defendant spent $2,300 to remove the encroachments. Plaintiff then filed a complaint in the Chancery Division claiming adverse possession.

Defendant moved for summary judgment, contending that (1) plaintiff could not prevail on her claim for adverse possession, (2) he was entitled to take action to abate a nuisance that interfered with the reasonable use of his property, and (3) he was also entitled to be reimbursed for the costs he incurred to abate the nuisance, as well as counsel fees. Plaintiff filed a cross-motion for summary judgment premised upon her claim of adverse possession of the disputed property.

In a written decision, Judge MacKenzie denied defendant's motion, ruling that "defendant has not established that the [barbecue pit and brick wall] were such substantial nuisances which permitted him to remove them himself, without absolute prior notice to the plaintiff." The court also concluded, "at this time this court does not believe that defendant is entitled to reimbursement for his costs and counsel fees since at the time the defendant removed the items, they were removed voluntarily while a clear dispute as to who owned the property and the items was occurring."

Likewise, the judge also denied plaintiff's cross-motion for summary judgment. The court viewed plaintiff's claims that her use of the encroachments was known throughout her family and neighborhood for years as unsubstantiated and insufficient "to create an adverse claim of title to the property." Nonetheless, the court concluded that "[p]laintiff has left the court with several unanswered material questions that must be resolved before judgment could be entered in her favor." The court also denied plaintiff's counsel fee application because the court found that she suffered no damages and it remained "unclear as to whether any of her property was purposely damaged by the defendant."

Thereafter, the judge conducted a two-day bench trial. Following its completion, Judge MacKenzie dismissed plaintiff's complaint. He issued a written opinion in which he concluded that plaintiff "failed to prove open and notorious possession of the wall and barbeque pit." Rather, the judge determined that plaintiff's use was "casual and situational, without an intention to claim title." The judge also found that "[d]efendant was authorized by [p]laintiff to take the structures down," but that plaintiff "actually believed that the encroachments were 'grandfathered' and they were exempt from removal. Her belief, although mistaken, was genuine." In light of this conclusion, plaintiff was not ordered to reimburse defendant for the cost of removal. The court reasoned that "[d]efendant could have brought an action to quiet title or to abate a nuisance rather than using self-help."

Subsequent to the court's decision, defendant filed a motion for counsel fees and costs. The court denied the motion, finding as a fact that plaintiff's cause of action was brought in good faith. Defendant's appeal and plaintiff's cross appeal followed.

Defendant raises the following points for our consideration on appeal:

POINT I

THE DEFENDANT IS ENTITLED TO RECOVER HIS COUNSEL FEES AND COSTS PURSUANT TO THE FRIVOLOUS LITIGATION STATUTE AND R. 1:4-8, FRIVOLOUS LITIGATION

POINT II

THE DEFENDANT IS ENTITLED TO BE REIMBURSED FOR THE COST TO ABATE THE NUISANCES

In her cross-appeal, plaintiff contends she is entitled to her legal fees and costs.

I.

Initially, defendant takes issue with the court's denial of his summary judgment motion. Defendant contends that based upon language in the court's July 25, 2005 written opinion that plaintiff's claims of adverse possession were based upon "unsubstantiated assertions," there were no genuinely disputed issues of fact and plaintiff's claim therefore failed as a matter of law. R. 4:46-2(c). Defendant also urges that this same language supports his contention that the court erred in denying his motion for counsel fees.

Our review of a trial court's grant or denial of summary judgment is the same as that employed by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boyland, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment is appropriate where there is no genuine issue as to any material fact challenged. R. 4:46-2(c). The ultimate question in a summary judgment motion is whether, upon a review of the pleadings, deposition testimony and other competent evidence presented, in a light most favorable to the non-moving party, a rational fact-finder could 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).

Evaluated under that standard, there was evidence before the court that defendant purchased the property with knowledge of the existence of the encroachments, and the court found that there was evidence that plaintiff used and cared for the property since the time she and her late husband purchased their property more than thirty-seven years ago. When these facts are viewed in a light most favorable to plaintiff, we are satisfied that the trial court properly denied summary judgment to defendant. Ibid. Moreover, the court also found that defendant provided the "court with little argument [to substantiate] his position" but instead "merely explain[ed] the various standards of summary judgment without applying same to his claims."

II.

After the court denied the motion and cross-motion for summary judgment, defendant sent a demand letter to plaintiff in which he quoted portions of the court's July 25, 2005 opinion as a basis for defendant's demand that plaintiff dismiss her action. Plaintiff did not dismiss her complaint.

Prior to trial, defendant served plaintiff with a pretrial letter memorandum in which defendant again reiterated that plaintiff, based upon the court's written opinion and the fact that no additional evidence would be forthcoming, could not prevail on her claim of adverse possession. Nonetheless, plaintiff proceeded to trial. Because plaintiff refused to dismiss the complaint and proceeded to trial, where the court ultimately found plaintiff had failed to prove her claims, defendant argues plaintiff's lawsuit was a tactical maneuver to counter defendant's legitimate lawsuit. As such, defendant maintains that plaintiff's complaint was not filed in good faith and the court erred in denying counsel fees and costs to him.

What the court found unsubstantiated were plaintiff's claims that the "use of the property and the items thereon was . . . known throughout her family and the surrounding neighborhood" and that her use of the property was also known to predecessors in the chain of title. Despite these findings, the court stated that plaintiff had left it "with several unanswered material questions that must be resolved before judgment could be entered in her favor."

The court did not expound upon the nature of the unanswered questions in its written opinion. We can only surmise that the court was of the view that a full hearing where it would have the opportunity to observe the testimony of plaintiff and defendant under both direct and cross-examination was necessary to resolve those questions. At best, viewed most favorably to plaintiff, as the non-moving party, at the time the summary judgment motions were heard, plaintiff's affidavits and defendant's affidavits presented the court with conflicting facts that presumably were subject to resolution only by a credibility determination, uniquely the fact-finder's function. See D'Amato by McPherson V. D'Amato, 305 N.J. Super. 109, 115-16 (App. Div. 1997).

Thus, we do not agree that the court's language in its July 25, 2005 written opinion establishes the factual predicate for defendant's entitlement to counsel fees and costs. Moreover, even if we were to conclude that the court erred in denying defendant's motion, the granting of defendant's summary judgment motion would not, standing alone, justify the award of counsel fees. First Atl. Fed. Credit Union v. Perez, 391 N.J. Super. 419, 425 (App. Div. 2007) (noting that under the "American Rule," the prevailing party is not, ordinarily, entitled to receive counsel fees from the losing party.)

The Frivolous Litigation Statute was enacted in 1988. Its purpose, on the one hand, is punitive, in that it seeks to deter frivolous litigation. Toll Bros., Inc. v. Twp. of West Windsor, 190 N.J. 61, 67 (2007) (quoting Deutch & Shur, P.C. v. Roth, 284 N.J. Super. 133, 141 (Law Div. 1995)). On the other hand, it provides reimbursement to a party who has been subjected to frivolous litigation and, thus, also serves a compensatory purpose. Ibid. Rule 1:4-8, its counterpart, is expressly made applicable, "[t]o the extent practicable," to "the assertion of costs and fees against a party other than a pro se pursuant to N.J.S.A. 2A:15-59.1." R. 1:4-8(f).

Under the statute, a court is authorized to award reasonable counsel fees and litigation costs to a prevailing party in a civil action if the court determines "that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous." N.J.S.A. 2A:15-59.1(a)(1). Proof of a frivolous complaint is established where the court finds that the action was "commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury," N.J.S.A. 2A:15-59.1(b)(1), or if "[t]he nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law," N.J.S.A. 2A:15-59.1(b)(2).

Here, Judge McKenzie, in his March 31, 2006 Findings of Fact and Conclusions of Law, specifically found that plaintiff's decision to pursue this matter was made in good faith. In his written opinion issued at the conclusion of the bench trial, the court found as a fact that plaintiff actually believed that the encroachments were "grandfathered."

We discern no abuse of discretion in the court's denial of an award of counsel fees and costs to defendant. See DeBrango v. Summit Bancorp, 328 N.J. Super. 219, 229 (App. Div. 2000) (holding that the trial court must exercise its discretion to determine whether plaintiff's actions were objectively reasonable under the circumstances). As we previously reasoned in Port-O-San Corp. v. Teamsters Local Union No. 863, Welfare & Pension Funds, 363 N.J. Super. 431, 440 (App. Div. 2003), both the statute and the rule "must be interpreted restrictively so as not to discourage creative advocacy or access to the courts."

The remaining argument advanced by defendant that the court erred in denying reimbursement for the costs he incurred in removing the encroachments and plaintiff's cross-appeal challenging the court's denial of an award of counsel fees and costs to her are without sufficient merit to warrant discussion in a written opinion, R. 2:11-3(e)(1)(E), and we affirm substantially for the reasons set forth in Judge McKenzie's well-reasoned written opinions of July 25, 2005, and February 26, 2006.

Affirmed.

 

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A-4619-05T5

June 12, 2007