ROBERT J. SCHAFFHAUSER v. CROWS MILL TRUST, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4819-05T54819-05T5

ROBERT J. SCHAFFHAUSER,

Plaintiff-Respondent,

v.

CROWS MILL TRUST and

JAMES PAUL SABO and

BARBARA SABO,

Defendants-Appellants.

__________________________________________________________

 

Submitted February 27, 2007 - Decided March 15, 2007

Before Judges Coburn and Gilroy.

On appeal from the Superior Court of New Jersey,

Chancery Division, General Equity Part, Somerset

County, C-12026-01.

James P. Sabo, appellant pro se, filed a brief

on behalf of appellants.

Shain, Schaffer & Rafanello, attorneys for

respondent (Richard A. Rafanello, on the brief,

Nancy Stewart, of counsel and on the brief).

PER CURIAM

This appeal from a May 5, 2006, post-judgment order, is based on defendants' claim that plaintiff, after having obtained by judgment the right to pave an existing gravel driveway easement, installed parts of it outside the metes and bounds description contained in the recorded easement. Specifically, defendants seek a decision from us stating "that the paving be confined to the 15 foot wide access and driveway easement as specified in the easement agreement," or, in the alternative, a decision compensating them "for the loss of their property" plus a determination that the "exact location of the paved driveway should be fixed and the plaintiff . . . forbidden from again moving it." We affirm.

Plaintiff filed this Chancery action in 2001, the case was tried over seven days, and it appears that on October 10, 2003, the Chancery judge entered judgment permitting plaintiff to pave the driveway. We have not been provided with a copy of that judgment. Defendants appealed, and we affirmed the judgment in an unreported opinion, Schaffhauser v. Crows Mill Trust, No.

A-1134-03 (App. Div. January 18, 2006), certif. denied, 186 N.J. 603 (2006).

Defendants assert that after our decision was filed, they filed a motion in the Chancery Division for an order directing plaintiff to confine the paving to the metes and bounds description contained in the recorded easement. Defendants have failed to include copies of the moving papers in the record, and defendants' statement of facts in their appellate brief contains no references to the record.

The judge decided the motion in an oral opinion of April 20, 2006, concluding that he was "not satisfied that there has been a sufficient showing . . . that the survey shows the existing driveway outside that easement." He also said this:

Perhaps, more importantly, this case has been litigated for literally years, unfortunately, now. And that -- the surveys and the references that are made by [defendants] were certainly available during the time of this trial. If there was an issue, it could and should have been brought during that trial.

And this issue I also find would be barred by the entire controversy doctrine and accordingly, the application to the extent that it is an application for a[n] additional survey is denied.

The judge signed and filed an order confirming the decision of April 20, 2006, on May 5, 2006. Defendants filed a notice of appeal on May 23, 2006.

Defendants moved for a stay pending appeal. In a written decision dated May 24, 2006, the trial judge explained why he was denying defendants' request for a stay. In pertinent part, the judge wrote as follows:

Here, the defendant is now attempting to raise an issue about the location of the shared driveway with respect to the metes and bounds description. The "driveway" referred to throughout the proceedings, is the existing gravel driveway that has been in use by both parties for a significant number of years. This issue was not raised during the trial even though the defendant had a full opportunity to do so. It appears that defendant is now complaining about the location of the driveway simply to further delay its paving, which he opposes.

. . . .

Finally, the basic tenant of our justice system is that all matters must ultimately come to a final resolution. This case has been fully litigated, appealed, re-litigated, and appealed again. Five years of litigation regarding the driveway have been undertaken. Plaintiff is entitled to a final resolution and defendant's unrelenting post judgment motion practice must not be allowed to frustrate that goal.

An order was entered denying the stay. Defendants sought immediate interlocutory appellate relief. We denied the application for a stay in an order filed on July 25, 2006. Defendants' notice of appeal seeks review of that portion of the May 5, 2006, order which provides that defendants' application "to require Plaintiff . . . to obtain and pay for a new survey of the easement driveway be and hereby is denied[.]" Apparently the driveway has been paved. Defendants have placed in their appendix a purported survey of the properties. We cannot tell whether that survey was submitted to the trial judge and we cannot tell what it shows, based on the record before us, with respect to the location of the driveway. Defendants have also submitted, without permission, another survey which purports to show the driveway outside the metes and bounds description. This purported survey bears the date September 18, 2006, and was obviously not presented to the trial judge.

The trial judge held, and plaintiff maintains on appeal, that defendants' subsequent litigation was barred by the entire controversy doctrine. See, e.g., Thomas v. Hargest, 363 N.J. Super. 589, 595-96 (App. Div. 2003). Although defendants argue that this issue was not raised below, that is not true. As noted above, one of the reasons the trial judge gave for denying relief was the entire controversy doctrine. Although the trial judge appears to have been correct, we need not reach that issue since, as the trial judge found, defendants had failed to submit evidence to him showing that the driveway deviated from the metes and bounds description of the easement. We note that defendants also failed to submit to the trial judge any evidence indicating monetary damages flowing from the present location of the road.

Although there may be some slight deviations, assuming the September 18, 2006, survey is correct, even defendants recognize they are of little moment. For in their brief, they seek as alternative relief, an order requiring plaintiff to have a survey made showing the driveway in place as presently paved.

Having won his case in the trial court and on appeal, plaintiff, in these circumstances, should not be burdened with any additional cost. The driveway is where it is, and, indeed, the September 18, 2006, survey appears to show what defendants seek in their alternative request for relief. If defendants want another survey, it will have to be at their own expense.

Furthermore, if either party believes that they are entitled to further judicial relief with respect to further problems that may arise in relation to this easement, the matter will have to be instituted in a separate action with a new complaint.

Affirmed.

 

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A-4819-05T5

March 15, 2007