RAYMOND B. WEBB v. TOWNSHIP OF PARSIPPANY-TROY HILLS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1328-11T4

A-1526-11T3

RAYMOND B. WEBB and TRACY WEBB,

Plaintiffs-Appellants,

v.

TOWNSHIP OF PARSIPPANY-TROY

HILLS and HILL ROAD PROPERTIES,

LLC, ROTUNDA at PARSIPPANY, INC.,

Defendants-Respondents.

RAYMOND B. WEBB and TRACY WEBB,

Plaintiffs-Respondents,

v.

TOWNSHIP OF PARSIPPANY-TROY HILLS,

HILL ROAD PROPERTIES, LLC,

Defendants-Respondents,

and

ROTUNDA at PARSIPPANY, INC.,

Defendant-Appellant.

-

April 2, 2013

Argued March 5, 2013 - Decided

Before Judges Reisner and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2532-10.

Raymond B. Webb, appellant in Docket No. A-1328-11, argued the cause pro se.

Justin A. Marchetta argued the cause for respondent Township of Parsippany-Troy Hills (Inglesino, Pearlman, Wyciskala & Taylor, LLC, attorneys; Mr. Marchetta, of counsel and on the brief).

Allen Hantman argued the cause for respondent Rotunda at Parsippany, Inc. in Docket No. A-1328-11 and appellant in Docket No. A-1526-11 (Morris & Hantman, attorneys; Mr. Hantman, of counsel and on the brief).

PER CURIAM

These back-to-back appeals, which we consolidate for purposes of this opinion, arise from the October 6, 2011 Law Division order dismissing the complaint filed by plaintiffs, Raymond and Tracy Webb, and denying the request for counsel fees filed by defendant Rotunda at Parsippany, Inc. (Rotunda). We affirm.

I

Plaintiffs are the owners of a property in the Township of Parsippany-Troy Hills (Township) located on Hillside Lane, which they purchased in 2005. Hill Road Properties (Hill Properties) and Rotunda are abutting property owners. Plaintiffs' property is accessed from Hill Road via Hillside Lane, which is twenty feet wide.

Each party's tract of land was created by a 1926 subdivision, which specifically granted a right of way over Hillside Lane to plaintiffs' predecessors in title. The 2005 deed for plaintiffs' property also refers to Hillside Lane as "a [twenty] foot right of way[.]"

In 2008, plaintiffs filed a complaint and jury demand, and later a first amended complaint, in the Chancery Division, against then abutting property owners, Rotunda and the International Brotherhood of Electrical Workers Union Local 102 Holding Corporation (IBEW) (collectively "the 2008 defendants"). The first count of plaintiffs' 2008 lawsuit sought a judicial declaration determining the exact location and dimensions of Hillside Lane and permitting plaintiffs to use Hillside Lane without any limits or encroachments, and a judgment enjoining the 2008 defendants "from claiming any limits on . . . plaintiff[s'] use of Hillside Lane." The second count sought a judicial declaration that the location and dimensions of Hillside Lane comply with the zoning ordinances, rules and regulations of the Township. Specifically, plaintiffs requested that the dimensions of Hillside Lane be widened "substantially greater" than twenty feet.

Thereafter, the 2008 defendants separately moved for summary judgment. On April 21, 2009, the Chancery Division judge granted both motions. First, the judge found no evidence that the 2008 defendants had been interfering with plaintiffs' rights of ingress and egress. Second, the judge determined that the court did not have the power to extend or widen a private right of way to make it conform to the Township's zoning regulations. The judge found that it was the role of the Township to make such a determination and took issue with the fact that the Township was not a party to the litigation. Thus, the judge concluded,

it's not the role of this [c]ourt to declare [that] this particular ingress and egress access right [is] more than what it is, which is what Mr. Webb is asking. It is not the role of the [c]ourt to change it. It is not the role of the [c]ourt to direct [the Township] to change it. It's not the role of the [c]ourt to extend it or widen it or make it more than what it is to comply with current zoning rules or regulations. That is clearly the role of the [T]ownship to act upon the appropriate recommendations or applications of any or all of the parties. . . . It's the role . . . of the municipality, which is not even a party to this litigation . . . Mr. Webb has been aware of, since the time of the purchase of this property, as pointed out in his own title insurance policies, the issues relating to this ingress and egress agreement.

In February 2010, Hill Properties requested that the Township cease snow removal from Hillside Lane, asserting it is "a private drive." In March 2010, the Township confirmed to Hill Properties that Hillside Lane is a private right of way and stated that "all responsibility for future maintenance, repair, and upkeep of Hillside Lane, including snow removal, lies with its owners and to the extent applicable, the beneficiaries of the ingress and egress easement."

On August 3, 2010, plaintiffs filed the action under review, seeking a declaratory judgment that Hillside Lane is a public road and restraining and enjoining the Township from "interfering with or limiting the right of [p]laintiffs to use Hillside Lane as a public road."

Thereafter, the Township, Rotunda, and Hill Road separately moved to dismiss plaintiffs' complaint, arguing that it was barred by both the entire controversy doctrine and collateral estoppel. Rotunda separately moved for counsel fees, arguing that plaintiffs' complaint constituted frivolous litigation.

In an oral decision, Judge Stephan C. Hansbury granted all defendants' motions to dismiss, finding the judge in 2008

clearly . . . determined that [Hillside Lane] is a private easement of [twenty] feet. . . . Although the Township . . . was not a defendant, the allegations were there and . . . plaintiff chose . . . not to bring in the [Township].

The purpose of that lawsuit was for [plaintiffs'] to obtain access of [thirty] feet. That's pretty clear from the documents that [I have been] given. I think the entire controversy [doctrine] does apply here because clearly [the Township] should have been a defendant. The allegations were not limited simply to where is the easement.

The allegations were we want a [thirty]-foot right-of-way. That's an allegation . . . [that] should have been brought to the Township. You don't get a second bite at the apple. And I also find collateral estoppel because I do conclude [the judge in 2008] did decide that [Hillside Lane] is a private easement, that she rejected the argument . . . that there would exist a Township road there.

In an order reflecting his oral decision, Judge Hansbury also denied Rotunda's request for counsel fees, finding that "[the Township] was not a party to the prior litigation . . . this matter is not 'frivolous,' [and was] brought in good faith." These appeals followed.

II

We first address whether the trial court appropriately dismissed plaintiffs' complaint. We review a trial court's grant of a motion to dismiss pursuant to Rule 4:6-2(e) "de novo, following the same standard employed by trial court." Scheidt v. DRS Techs., Inc., 424 N.J. Super. 188, 193 (App. Div. 2012). The standard requires us to review the complaint in depth and with liberality to determine if "a cause of action can be gleaned even from an obscure statement." Printing Mart v. Sharp Elecs., 116 N.J. 739, 746 (1989) (internal quotation marks and citations omitted). A complaint should not be dismissed where a cause of action is suggested by the facts and a theory of actionability may be articulated by amendment of the complaint. Ibid.

"The entire controversy doctrine embodies the principle that the adjudication of a legal controversy should occur in one litigation in only one court[.]" Cogdell v. Hosp. Ctr. at Orange, 116 N.J. 7, 15 (1989). It was "judicially created as a reflection of . . . the unification of the state courts in light of our Constitution's recognition of the value in resolving related claims in one adjudication so that all matters in controversy between parties may be completely determined." Higgins v. Thurber, 413 N.J. Super. 1, 11-12 (App. Div. 2010) (internal quotation marks and citations omitted). The doctrine's objectives "include the needs of economy and the avoidance of waste, efficiency and the reduction of delay, fairness to parties, and the need for complete and final disposition through the avoidance of 'piecemeal decisions.'" Cogdell, supra, 116 N.J. at 15 (internal quotation marks and citation omitted).

Consistent with these objectives, Rule4:30A provides that "[n]on-joinder of claims required to be joined by the entire controversy doctrine shall result in the preclusion of the omitted claims to the extent required by the entire controversy doctrine[.]" The rule "encompasses 'virtually all causes, claims, and defenses relating to a controversy[,]'" Oliver v. Ambrose, 152 N.J. 383, 394 (1998) (quoting Cogdell, supra, 116 N.J. at 16), and requires all parties in an action to raise all transactionally related claims or risk preclusion. K-Land Corp. No. 28 v. Landis Sewerage, 173 N.J.59, 69-71 (2002); R.4:30A.

However, the entire controversy doctrine does not "'apply to bar component claims either unknown, unarisen or unaccrued at the time of the original action.'" K-Land, supra, 173 N.J. at 70 (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 4:30A (2002)). When "considering fairness to the party whose claim is sought to be barred, a court must consider whether the claimant has had a fair and reasonable opportunity to have fully litigated that claim in the original action." Gelber v. Zito P'ship, 147 N.J. 561, 565 (1997) (internal quotation marks and citations omitted). Thus, application of the entire controversy doctrine requires some degree of equality of forum; "'that is, the first forum must have been able to provide all parties with the same full and fair opportunity to litigate the issues and with the same remedial opportunities in the second forum.'" Hernandez v. Region Nine Hous. Corp., 146 N.J. 645, 661 (1996) (quoting Perry v. Tuzzio, 288 N.J. Super. 223, 230 (App. Div. 1996)).

Here, the 2008 litigation and the litigation under review arise from the same transaction the 1926 subdivision. Both actions revolve around the status of Hillside Lane. The entire controversy doctrine acts as a filter to prevent piecemeal litigation such as this. Joel, supra, 147 N.J. at 548. Plaintiffs had a full and fair opportunity to join the Township in the 2008 litigation.

There is sufficient evidence that in 2008, plaintiffs considered that the Township possibly owned Hillside Lane. Webb and Rotunda exchanged certifications and letters during the course of the 2008 litigation on the very issue of the ownership of Hillside Lane. Defendant certified that Hillside Lane was a public road prior to becoming an easement, and Rotunda refuted that assertion. Additionally, the judge in the 2008 litigation and Mr. Webb discussed the issue at oral argument:

THE COURT: . . . As I understand your position, it's essentially you think that the [T]ownship, by granting various application[s] from these defendants, has taken what was a public road and turned it into an easment, and you . . . want to fix that.

MR. WEBB: Yes. That was actually an act that the planning board is not qualified to do, to change the status of a road, especially a public road. So even though . . . I can't contest the resolution, itself. I can contest the fact that that body was not . . . in their jurisdiction to change the use of that road, which they did.

THE COURT: Well, you understand that I don't have the authority to, in this litigation, to direct [the Township] to fix something?

MR. WEBB: Yes, I have learned that, your Honor. And that's why I say I have new documentation I wanted to submit in reference to Hillside Lane being a public road. And, you know, records from the town minutes, 1931, and also the initial engineering map for the township. I want to be able --

THE COURT: But again, even if I considered those, you understand that . . . I don't have the authority in this litigation to deal with the [T]ownship?

By asserting to the judge that the Township impermissibly gave up its ownership rights in Hillside Lane to private landowners, plaintiffs raised the issue of the Township's ownership of the roadway in 2008. Thus, this is not a claim that was "either unknown, unarisen, or unaccrued at the time of the original action." K-Land, supra, 173 N.J. at 70 (internal quotation marks and citations omitted). Plaintiffs cannot argue that they did not have access to the information necessary for a claim against the Township in 2008, as the deeds, tax maps, and other Township records were as readily available in 2008, as they were in 2010.

Furthermore, the judge in 2008 found as fact that Hillside Lane is a private right of way. Specifically, she determined that Hillside Lane is "an easement created since 1926 with two deeds recorded in the chain of title to Mr. Webb's property."

In addition, we also agree with the motion judge that the claim was barred by collateral estoppel. The status of Hillside Lane was actually litigated and decided in the 2008 lawsuit. See Winters v. North Hudson Reg'l Fire & Rescue, 212 N.J. 67, 85 (2012) (quoting Restatement (Second) of Judgments 27 (1982)) ("[w]hen an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim."). As such, plaintiffs' complaint was appropriately dismissed.

III

We now turn to Rotunda's appeal from the order denying its request for counsel fees.

A trial court's determinations on the availability and amount of fees and costs for frivolous litigation are reviewable for "abuse of discretion." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005). Reversal is warranted when "the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Ibid.

[Ferolito v. Park Hill Ass'n Inc., 408 N.J. Super. 401, 407 (App. Div. 2009).]

Pursuant to the Frivolous Litigation Statute, N.J.S.A. 2A:15-59.1(b), in order for a complaint from the non-prevailing party to be deemed frivolous, the judge must find evidence that the complaint

(1) . . . was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint . . . 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.

The dismissal of a claim in favor of a defendant is not per se evidence that a plaintiff pursued his or her claim in bad faith. Ferolito, supra, 408 N.J. Super. at 408. The party seeking fees resulting from frivolous litigation bears the burden of showing the non-prevailing party acted in bad faith. Ibid.

Moreover, the frivolous litigation statute must be interpreted strictly. DeBrango v. Summit Bancorp, 328 N.J. Super. 219, 226 (App. Div. 2000). Sanctions should be awarded only in exceptional cases, not for every litigation infraction. Iannone v. McHale, 245 N.J. Super. 17, 28 (App. Div. 1990). "When the [non-prevailing party's] conduct bespeaks an honest attempt to press a perceived, though ill-founded and perhaps misguided, claim, he or she should not be found to have acted in bad faith." Belfer v. Merling, 322 N.J. Super. 124, 144-45 (App. Div.), certif. denied, 162 N.J. 196 (1999).

Having reviewed the arguments raised by Rotunda in light of the record on appeal and applicable law, we conclude that the judge did not abuse his discretion in denying Rotunda's application for frivolous lawsuit sanctions. The record indicates that Rotunda was added as a defendant at the behest of the court. An unrefuted certification from Mr. Webb states that the original judge assigned to the case directed plaintiffs' then attorney to add Rotunda and Hill Properties as necessary parties. Finally, we note that the judge's grant of Rotunda's motion to dismiss, without more, did not necessitate an award of attorney's fees for frivolous litigation. See Ferolito, supra, 408 N.J. Super. at 408.

A