ROBERTS v. KRAUSE

 SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3257-21
RYAN ROBERTS and
REBECCA ROBERTS,
Plaintiffs-Appellants,
v.
KELLIE KRAUSE,
Defendant-Respondent.
___________________________
Submitted September 11, 2023 – Decided October 2, 2023
Before Judges Mawla and Chase.
On appeal from the Superior Court of New Jersey,
Chancery Division, Gloucester County, Docket No.
C-000005-22.
Marmero Law, LLC, attorneys for appellants (Charles
A. Fiore, on the briefs).
Hoffman DiMuzio, attorneys for respondent (Dante B.
Parenti and Michael C. Donio, on the brief).

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
PER CURIAM
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Plaintiffs Rebecca and Ryan Roberts ("the Roberts") appeal from a March
11, 2022 order, which denied injunctive relief and dismissed their verified
complaint, and a May 13, 2022 order denying a motion for reconsideration of
that order. They assert the court went beyond the issue of preliminary restraints
and granted defendant Kellie Krause permanent relief without notice or a chance
to present additional evidence. We reverse and remand for the reasons expressed
in this opinion.
I.
On April 25, 2017, the Roberts purchased 1325 Janiver Road in Monroe
Township, Gloucester County. The Roberts also own lots 42 through 48, which
are behind their home. Krause has owned 1407 Janiver Road since 2004. The
Roberts and Krause are neighboring property owners with residences fronting
Janiver Road. Lots 42 through 48 are undeveloped and lie behind both
residences.
Within Krause's property line, on the right side of her house, is a dirt road
with concrete sidewalks and curbing called Grandison Terrace. Grandiso n
Terrace is to the left of the Roberts' house, and not on their property, but it does
extend to the back of both homes and to lots 42 through 48. In February 2022,
Krause installed a fence on her property due to people dumping trash and ruining
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the road. The fence goes across Grandison Terrace blocking anyone from using
the sidewalks or the dirt road. Access to Grandison Terrace is the subject of this
dispute.
II.
By way of background, in the 1960s, John and Vivian Grandison owned
Krause's property. Nesbit Hill and Thelma Ector owned what is now the
Roberts' property. In 1966, the Grandisons conveyed Lot 41 to Hill and Ector,
which included the area where Grandison Terrace now sits. In November 1969,
the Grandisons submitted for approval Grandison-Section 1, which included the
creation of Grandison Terrace and the development of some of the lots.
Preliminary approval was granted to the Grandisons on December 4, 1969. In
an undated agreement bearing only the year of 1969 on it, the Grandisons
entered into an agreement with Gloucester County for the installation of curb
and pipe improvements on Grandison Terrace. This agreement required all work
to be completed within three years.
In July 1977, Ector and Hill transferred a portion of Lot 41 to the
Grandisons. This portion is Grandison Terrace. The Grandisons then combined
the Grandison Terrace portion with Lot 49. This is what Krause owns.
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The Grandisons had started work on the road. Curbing and sidewalks
were installed along an approved 50-by-1,000-foot section. A graded dirt
roadway was also created. These improvements remain today; however, the
road was never paved.
In 1979, the Planning Board of Monroe Township once again granted the
Grandisons approval for development of the lots. The approval was contingent
upon Gloucester County's Planning Board approval, soil conservation approval,
any other approvals required by the planning board, any conditions of the
township engineer, and eight other conditions for the Grandisons to fulfill.
In 1988, the Grandisons applied for and received approval from the
Monroe Township Planning Board to subdivide a small portion of Lot 45. The
deed was consistent with the approval and Grandison Terrace is documented.
When Krause purchased her property, the listing described it as a corner
property, possibly a reference to the intersection of Janiver Road and Grandison
Terrace. The agreement of sale listed the property as 1.84 acres exclusive of
Grandison Terrace. However, the deed was for over two acres and included the
dirt road, which Krause now argues was never completed and never formally
became Grandison Terrace.
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In 2007, a developer sought to build a single-family residence on Lot 45.
The proposed residence required a variance because the lot did not front a public
road. The developer sent a letter to Krause proposing to purchase an easement
over Krause's dirt road to provide Lot 45 with access to Janvier Road. On
November 20, 2007, the Monroe Township Zoning Board passed Resolution No.
07-59 ("the Resolution"), approving the developer's application to build on Lot
45. The resolution states: "The Board's [p]lanner/[e]ngineer . . . testified that
she is comfortable with the proposal because the access road/drive will be
privately owned." Accordingly, the Resolution required the developer to obtain
an easement over Krause's property prior to construction.
In 2009, the developer submitted an application to the zoning board to
develop Lots 42, 43, and 44. A March 31, 2009 letter from an engineering
consultant references the zoning board's prior grant of the developer's
application to build a residence on Lot 45, which contained nine conditions of
approval. The first requirement states: "[o]btain an easement over the intended
right of way for access which currently rests on land titled to . . . Krause."
However, the developer abandoned the project and no easement was ever
recorded.
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In November 2021, Krause applied for the permit to construct the fence.
Although Grandison Terrace had been on the tax map of Gloucester County
since 1969, it was removed from the tax map in November 2021. Based on the
removal of Grandison Terrace from the tax map, the Roberts claim a zoning
permit was issued to Krause to install the fence.1
III.
The Roberts contend that because of the fence they are denied access to
their garage on Lot 41 and to Lots 42-48. The Roberts claim they had previously
obtained a zoning permit from Monroe Township to build the garage and other
structures in the rear yard of their property based on access through a right of
way on Grandison Terrace.
Therefore, in February 2022, the Roberts filed a verified complaint and
order to show cause seeking injunctive relief restraining Krause from taking
further action to interfere with Roberts' claimed property rights in using
Grandison Terrace and ordering Krause to remove the fence. The complaint
asserted the following causes of action against Krause: 1) intentional
interference with plaintiffs' vested property rights; 2) private nuisa nce; 3)
unlawful taking of plaintiffs' property rights within the fifty foot right of way;
1 Neither Gloucester County nor Monroe Township are parties in this matter.
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and 4) establishment of easement by necessity and legal right of way for the
benefit of the plaintiffs. Krause filed an answer and opposition to the order to
show cause, and the matter was heard in the Chancery Division.
Notably, during oral argument on the return date of the order to show
cause the Roberts' attorney mentioned that additional documents were being
obtained and were taking longer to get due to the length of time that had accrued
since the creation of the road. However, at the hearing's conclusion, the court
assessed the Crowe v. DiGioia factors2 and concluded the Roberts could not
prove by clear and convincing evidence that there was adverse possession, and
the easement request "was only loosely described" in the verified complaint.
The court made no credibility findings despite Krause and the Roberts having
filed conflicting certifications. However, the court made factual findings as to
what land was taxed to Krause, whether the back lots were landlocked, and
whether there was final approval of Grandison Terrace. The court denied the
order to show cause and announced it was adjudicating the matter in a summary
fashion because there were no other matters to adjudicate. The Roberts filed a
motion for reconsideration contending they were only arguing the injunctive
relief aspects of their application at the order to show cause. They were not
2 90 N.J. 126, 132-34 (1982).
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prepared or put on notice of the fact that the four counts of their verified
complaint were going to be considered on the return date of the order to show
cause. The Roberts' counsel argued his clients did not have their day in court
and were deprived of the ability to amend their complaint. Counsel asserted he
was still gathering evidence and the court should hold a plenary hearing. The
court denied the motion again finding the Roberts did not meet the Crowe
factors. It also rejected counsel's argument reconsideration was unwarranted on
account of discovery and hearing because a motion for reconsideration was not
a means by which to introduce newly discovered evidence. The court concluded
the Roberts were improperly "attempting to expand the record."
IV.
On appeal, the Roberts argue that the court erred by dismissing the
complaint and by denying their motion for reconsideration. They do not
challenge the court's denial of the order to show cause.
Summary actions are governed by Rule 4:67. Our Supreme Court has
stated the procedural requirements of Rule 4:67 "serve important objectives: to
permit the presentation of a factual record and legal arguments to the court, and
to ensure that the parties anticipate and address the standard for summary
disposition before the court decides whether to grant that relief." Grabowsky v.
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Twp. of Montclair, 221 N.J. 536, 550 (2015). Summary disposition is also
permitted by agreement of the court and the parties, evinced by a "clear and
unambiguous statement from the judge and the unequivocal consent of the
parties to a final resolution . . . ." Waste Mgmt. of N.J., Inc. v. Union Cnty.
Utils. Auth., 399 N.J. Super. 508, 518-19 (App. Div. 2008).
Here, when the court dismissed the complaint, there were still several
outstanding factual issues in dispute: whether Grandison Terrace was
abandoned; whether Krause had paid taxes on the road; why Grandison Terrace
was on the tax map from 1969 until 2021; why Grandison Terrace was removed
from the tax map; who cared for the roads; and whether there could be other
access to Lots 42-48. Some of these answers may have been contained in the
additional evidence received after the court granted summary disposition but
before the reconsideration motion was heard.
More importantly, the court neither had the parties' consent nor gave them
notice before summarily ruling. "The minimum requirements of due process of
law are notice and an opportunity to be heard . . . at a meaningful time and in a
meaningful manner." Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76,
84 (App. Div. 2001). The trial court's unilateral adjudication of the matter in a
summary fashion without notice contravened these principles.
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Of course, a trial court has discretion to convert an application for a
temporary restraining order into a motion for summary judgment. Major v.
Maguire, 224 N.J. 1, 25 (2016). But as we have delineated, the material facts in
this case were not developed to a point where the court could adjudicate the
matter in a summary fashion at the order to show cause. Hence, summary
judgment was an inappropriate disposition at the order to show cause stage.
Both parties were still gathering documents. The complexity of the matter was
not fully developed. The age of the development of Grandison Terrace and the
applicable laws in the 1960s had not yet been briefed to the court. Therefore,
the trial court's summary disposition in Krause's favor without notice denied the
Roberts a fair opportunity to be heard on the merits.
Finally, because we have concluded the March 11, 2022 order dismissing
the matter was improperly entered, we need not discuss the May 13, 2022 order
denying reconsideration because it too was based on a misapplication of Rule
4:67.
Reversed and remanded for further proceedings consistent with this
opinion. The trial court shall hold a case management conference within thirty
days. We do not retain jurisdiction.