STATE OF NEW JERSEY v. CHERRY HILL MITSUBISHI, INC
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5198-15T1
STATE OF NEW JERSEY, by the
COMMISSIONER OF TRANSPORTATION,
Plaintiff-Respondent,
v.
CHERRY HILL MITSUBISHI, INC.,
a New Jersey Corporation;
CHERRY HILL DODGE, INC.,
a New Jersey Corporation,
Defendants/Third-Party
Plaintiffs,
and
FOULKE MANAGEMENT CORPORATION,
a New Jersey Corporation,
d/b/a CHERRY HILL TRIPLEX,
CHERRY HILL DODGE, CHERRY HILL
KIA and CHERRY HILL MITSUBISHI,
Defendant/Third-Party
Plaintiff-Appellant,
v.
VICTOR AKPU, THE COMMISSIONER OF
THE DEPARTMENT OF TRANSPORTATION,
Third-Party Defendant.
Argued February 7, 2018 – Decided April 12, 2018
Before Judges Alvarez, Nugent, and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No.
L-3489-13.
Laura D. Ruccolo argued the cause for
appellant (Capehart & Scatchard, attorneys;
Laura D. Ruccolo, on the briefs).
Fredric R. Cohen and Nonee Lee Wagner, Deputy
Attorneys General, argued the cause for
respondent (Gurbir S. Grewal, Attorney
General, attorney; Melissa H. Raksa, Assistant
Attorney General, of counsel; Fredric R. Cohen
and Nonee Lee Wagner, on the brief).
PER CURIAM
Defendant Foulke Management Corporation (FMC)1 appeals from
the July 27, 2016 final judgment ordering it to cease encroaching
on the State's right-of-way (ROW) along certain portions of Route
70. The judgment also permitted the State, on notice to
defendant,2 to enter the property and mark out or set property
lines per the State maps and surveys, and enjoined FMC "from
1 On September 20, 2013, the trial court dismissed the named
defendants with the exception of FMC. FMC's counterclaim against
the State and State employees was dismissed on interlocutory
appeal. State v. Cherry Hill Mitsubishi,
439 N.J. Super. 462, 466
(App. Div. 2015).
2
In its complaint, the State sought as relief the ability to
mark out and delineate the ROW as necessary. Apparently, initial
efforts at staking out the property prior to the filing of this
suit resulted in survey equipment being destroyed and the stake
out being vandalized.
2 A-5198-15T1
destroying, concealing or tampering with [the State's] equipment
used to establish and demonstrate the property lines." After our
review of the record and relevant legal principles, we affirm.
We glean the following facts from the transcripts of the
several-day bench trial and documents in evidence. The initial
inquiry regarding FMC's encroachment onto the State's ROWs——which
consisted of parked cars and signage——was initiated by a call from
a neighbor who was concerned about potential hazards to drivers
on the roadway. FMC is the entity that operates the other three
defendants: Cherry Hill Dodge, Cherry Hill Kia, and Cherry Hill
Mitsubishi. The State's complaint was filed after the Department
of Transportation's (DOT) investigation.
The ROWs in dispute are: .082 acres acquired from Charles
W. Foulke, Jr. (Foulke) and Marcia Foulke, by deed dated November
22, 1989 (Parcel 89); .028 acres acquired from the Monday Night
Corporation, whose corporate officers included the Foulkes, and
Charles W. Foulke, III, on August 24, 1989 (Parcel 90); .061 acres
and two slope easements acquired from the Estate of William G.
Rohrer and William Sikora t/a Mardel Company, by deed dated July
20, 1992 (Parcel 87); and .014 acres and a slope easement acquired
through condemnation proceedings, the declaration of taking being
dated April 13, 1989 (Parcel 91). Parcels 89 and 91 are on the
north side of Route 70, adjacent to the westbound lane. Parcels
3 A-5198-15T1
87 and 90 are on the south side of Route 70, adjacent to the
eastbound lane. Foulke is the current owner and lessor of the
adjoining properties and a principal in FMC, the lessee.
The State introduced in evidence the deeds and the declaration
of condemnation, which do not include metes and bounds
descriptions. The documents instead refer back to general property
maps (GPPM) depicting all the ROWs along the relevant sections of
Route 70. The State also introduced the DOT's construction plans
for the roadway and presented several witnesses, including John
Rossi, a surveyor.
Rossi was qualified as an expert in transportation work and
roadway design. He has worked for the DOT, the Port Authority,
and the New Jersey Turnpike Authority. Rossi testified that the
ROW line is ten feet from the curb in front of the three car
dealerships; he plotted and cross-checked the legal descriptions
using the GPPM and a baseline, centered in the roadway. He
stressed the importance of carefully tracking the baseline, as the
last Route 70 expansion widened the roadway. In the process of
verifying the outline of each ROW parcel, Rossi's field crew
located monuments from the original baseline dating back to the
1930s in the center of the roadway. Rossi checked his acreage
calculations against the GPPM employing a computer program and
using specified points and monuments. He was able to plot the
4 A-5198-15T1
legal description in the transfer documents onto the GPPM. Rossi
relied upon the transfer documents and GPPM confirmation process
in order to draw the survey of the ROWs.
Victor Akpu, the DOT Commissioner, testified that the revised
GPPM, the only one that the DOT could locate, is always a replica
of the original updated with revisions, as every revision does not
trigger the creation of a new map. The 1985 GPPM was not filed
with Camden County.
FMC also presented the testimony of an expert licensed land
surveyor. That witness testified that the original 1985 GPPM,
which could not be located, was necessary in order to be able to
accurately plot the ROWs. He agreed, however, that any revisions
to the GPPM concerned only parcel 87 and that the size of even
that ROW——.061 acres——is identical to that recited in the deed.
FMC also relied upon the plans and drawings of a professional
engineer it had engaged five years earlier when constructing a
sidewalk on Parcel 89. It is undisputed that the State issued the
sidewalk permit for the work, even though the boundaries in those
plans conflicted with the State ROW boundaries. Rossi opined that
the sidewalk permit survey incorrectly depicted the 1985 ROW line
because it used the 1931 map baseline calculations without taking
into account the road expansion.
5 A-5198-15T1
The DOT presented the testimony of the employee who issued
the sidewalk permit. He relied upon the applicant's professional
engineering plan and did not independently verify the accuracy of
the survey submitted with it. The application was not more closely
reviewed because it contained neither signage that might have
impact on traffic visibility nor structures that would affect
drainage.
At the beginning of the trial, FMC unsuccessfully moved to
dismiss the complaint because the State had not named the owner
of the land——Foulke——as a defendant, claiming that he was an
indispensable party. See R. 4:28-1. The trial court deemed the
proceeding to be "an enforcement action" against the tenant, not
an action to quiet title against the owner. Although he would
have to determine the ROW boundaries in order to decide whether
encroachments existed within those boundaries, the only relief
sought by the State was their removal.
The judge granted FMC's pretrial motion to exclude the GPPMs
and construction maps as hearsay. He nonetheless admitted them
during the trial, under the business record exception, N.J.R.E.
803(c)(6), and under N.J.R.E. 902(a), as "New Jersey public
documents."
The judge also admitted Rossi's map delineating the ROWs
based on the various underlying documents, the field surveying
6 A-5198-15T1
work, and review of the transfer documents. The judge then found
that FMC was indeed encroaching and granted the relief from which
this appeal is now taken.
The judge described Rossi's credentials as "very strong," and
found him "very credible." He accepted Rossi's ROW maps, relying
upon his detailed description of the survey process and concluding
that he was "one of the top people in the State of New Jersey in
terms of highways," had great expertise in this area, and was
"generally a credible witness." The judge also observed that the
survey FMC submitted with the sidewalk application was simply
"clearly wrong," and that the person who issued the sidewalk permit
assumed the accuracy of the applicant's drawings, which was not
unreasonable, but ultimately had no impact on the final decision
in this case.
The judge viewed FMC's expert as lacking the "wealth and
depth of experience" of the State's expert. Since the accuracy
of the maps went essentially unchallenged, and Foulke's expert was
less experienced than the State's, and his testimony unconvincing,
the judge held that the State's ROW line was correct and accurate
by a preponderance of the evidence. He enjoined FMC from
encroachment, directed that the State place mark-outs as per
Rossi's drawings, and instructed that any monuments be neither
removed nor concealed.
7 A-5198-15T1
Now on appeal, FMC raises the following points:
I. THE COURT ERRED BY DETERMINING THE
OWNERSHIP RIGHTS TO PROPERTY WITHOUT THE
OWNER OF THE PROPERTIES, AN
IND[I]SPENS[A]BLE PARTY, IN THE
LITIGATION.
II. THE TRIAL COURT ERRED BY ADMITTING INTO
EVIDENCE P34b, P34c, P34d P-39, P-40,
P41a, P41b, P41c WHICH CONSTITUTED
INADMISSIBLE HE[AR]SAY.
III. THERE WAS INSUFFICIENT EVIDENCE TO
SUPPORT THE TRIAL COURT'S FINDING THAT
THE STATE OWNS THE PROPERTY AREA AT ISSUE
AND THAT FMC WAS ENCROACHING.
I.
The State's authority to remove encroachments from its lands
is found in
N.J.S.A. 27:7-44.1, which states:
[N]or shall any person enter upon or construct
any works in or upon any State highway, except
under such conditions and regulations as the
commissioner may prescribe . . . . Whenever
any encroachment may exist without warrant of
law in any road when taken over as a State
highway, the commissioner shall notify the
Attorney General, who shall proceed to cause
the same to be removed as by law provided.
Any such violation may be removed from
any State highway as a trespass by a civil
action brought by the commissioner in the
Superior Court.
The exercise of that authority does not require Foulke's
participation in the litigation as an indispensable party.
8 A-5198-15T1
Rule 4:28-1 provides, in relevant part, that a person is an
indispensable party if:
(1) in the person's absence complete relief
cannot be accorded among those already
parties, or (2) the person claims an interest
in the subject of the action and is so situated
that the disposition of the action in the
person's absence may either (i) as a practical
matter impair or impede the person's ability
to protect that interest or (ii) leave any of
the persons already parties subject to a
substantial risk of incurring double,
multiple, or other inconsistent obligations by
reason of the claimed interest.
"There is no prescribed formula for determining in every case
whether a person or corporation is an indispensable party or not."
Garnick v. Serewitch,
39 N.J. Super. 486, 496 (Ch. Div. 1956)
(quoting Niles-Bement-Pond Co. v. Iron Moulders' Union,
254 U.S. 77 (1920).
"Persons who not only have an interest in the
controversy, but an interest of such a nature
that a final decree cannot be made without
either affecting that interest, or leaving the
controversy in such a condition that its final
termination may be wholly inconsistent with
equity and good conscience" are indispensable
parties.
[Garnick,
39 N.J. Super. at 496-97 (quoting
Shields v. Barrow,
58 U.S. 129 (1855)).]
The DOT sought relief, as alleged in the complaint, solely with
regard to trespass, not with regard to ownership. The trial judge
framed his decision to mirror the causes of action in the complaint,
9 A-5198-15T1
requiring property lines be established only for that purpose. It
is self-evident that in order to determine an encroachment,
boundaries must be established. Foulke was not the trespasser,
however, although he has an interest in the company that was——FMC——
and was no doubt fully aware of the litigation.
Foulke's absence from the litigation did not prevent full relief
from being accorded to the State, and the relief the State obtained
did not impact upon his property interest. The final judgment
specifies that the decision was rendered "[w]ithout prejudice to the
rights of non-party [Foulke]" with regard to fee ownership. Thus,
Foulke's ownership interest was not implicated in this removal
action.
The court did not err by, at the eleventh hour, refusing to
dismiss the proceeding because Foulke had not been joined. In
Foulke's absence, "complete relief" could be granted to the affected
parties. See R. 4:28-1. And his ownership rights were specifically
exempted from the effect of the judgment. See ibid.
II.
"A trial court's evidentiary rulings are entitled to deference
absent a showing of an abuse of discretion." State v. Nantambu,
221 N.J. 390, 402 (2015) (quoting State v. Harris,
209 N.J. 431, 439
(2012)). Hearsay is simply an out-of-court statement offered for the
truth of the matter it asserts. State v. Gore,
205 N.J. 363, 375
(2011) ("Our hearsay rules of evidence clearly provide that 'a
10 A-5198-15T1
statement, other than one made by the declarant while testifying at
the trial or hearing, offered in evidence to prove the truth of the
matter asserted.'" (citation omitted)). N.J.R.E. 802 makes hearsay
inadmissible, subject to exceptions as outlined in N.J.R.E. 803 and
804. A trial court's evidentiary rulings, such as whether the
proponent of evidence has established that an item falls within the
range of a hearsay exception, will be affirmed unless it was an abuse
of discretion.
N.J.R.E. 803(c)(6), regarding records of regularly conducted
business activities provides:
A statement contained in a writing or other
record of acts, events, conditions, and,
subject to Rule 808, opinions or diagnoses,
made at or near the time of observation by a
person with actual knowledge or from
information supplied by such a person, if the
writing or other record was made in the
regular course of business and it was the
regular practice of that business to make it,
unless the sources of information or the
method, purpose or circumstances of
preparation indicate that it is not
trustworthy.
FMC's argument that admission of the documents at issue violated
the hearsay rule lacks merit. The judge admitted the GPPMs and
constructions plans under the business records exception to the
hearsay rule, and the expert's drawings as incidental to his testimony
11 A-5198-15T1
pursuant to N.J.R.E. 703.3 The judge also admitted the GPPMs and the
construction plan maps as public documents under N.J.R.E. 902.
FMC's argument that the State failed to establish an adequate
foundation for admission of the maps as business records warrants
little discussion. The State presented four witnesses regarding the
creation, recovery, storage, and use of the documents. The judge
determined they were admissible under N.J.R.E. 803(c)(6) and admitted
them under that rule; there is nothing unreasonable in the judge's
exercise of discretion. That there may have been some question as
to the identity of the creator of the GPPMs, and whether an original
was available, is not relevant to the fact that these were business
records maintained by the State. The judge admitted the construction
plan maps on the same basis as the GPPMs——that they were business
records maintained by the State. That too was a reasonable exercise
of discretion.
The admission of Rossi's surveys was also proper. He prepared
a report, survey, and drawings after extensive study of other
documents as well as the actual Route 70 area. Since the judge found
3 N.J.R.E. 703 states:
The facts or data in the particular case upon
which an expert bases an opinion or inference may be
those perceived by or made known to the expert at or
before the hearing. If of a type reasonably relied
upon by experts in the particular field in forming
opinions or inferences upon the subject, the facts
or data need not be admissible in evidence.
12 A-5198-15T1
him to be a well-qualified and credible expert, they too are
admissible.
It has been frequently said that an appellate court must uphold
the factual findings and credibility determinations of the trial
court so long as they are based upon "sufficient credible evidence
in the record." State v. Elders,
192 N.J. 224, 243 (2007). Further,
the court "should give deference to those findings of the trial judge
which are substantially influenced by his opportunity to hear and see
the witnesses and to have the 'feel' of the case, which a reviewing
court cannot enjoy." State v. Johnson,
42 N.J. 146, 161 (1964). The
judge's factual findings and credibility determinations are supported
by the record, and his rulings based on his feel for the case.
Lastly, FMC asserts that under New Jersey's map filing law, the
DOT failed to file the GPPM with the Camden County Clerk's Office.
First, even assuming there was a failure to file, that failure to
file did not make the documents hearsay or render Rossi's reliance
upon them improper. Furthermore, the definition of maps was not
expanded by
N.J.S.A. 46:26B-1 until 1998. At the time these maps
were first generated, the State was not obligated to file them.
The trial court's findings should only be disturbed if they are
so clearly mistaken "that the interests of justice demand
intervention and correction." Id. at 162. The court "is not obliged
to defer to clearly mistaken findings——findings that are not
supported by sufficient credible evidence in the record." State v.
13 A-5198-15T1
Gibson,
218 N.J. 277, 294 (2014). The judge's evidentiary rulings
in this case were unobjectionable, falling well within the boundaries
of the exceptions to the hearsay rules and well supported by the
record.
III.
Finally, FMC argues that the final judgment was not supported
by the evidence, and urges us to exercise original jurisdiction and
decide the matter in its favor. We repeat, our standard of review
of a trial court's fact-finding is deferential. Given the substantial
support in the record for the judgment the court issued, and
evidentiary rulings that were reasonable, the exercise of original
jurisdiction is not warranted.
Affirmed.
14 A-5198-15T1
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