Lisa B. Freedman and Jeffrey C. Enda v. Murray N. ( 2015 )


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  •                 NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-4942-13T1
    LISA B. FREEDMAN and JEFFREY
    C. ENDA,
    APPROVED FOR PUBLICATION
    Plaintiffs-Respondents,
    November 24, 2015
    v.
    APPELLATE DIVISION
    MURRAY N. SUFRIN and ELLEN L.
    SUFRIN,
    Defendants-Appellants,
    and
    PRUDENTIAL FOX & ROACH REALTORS,
    VAL NUNNENKAMP, JOHN DRAGANI, JAMES
    L. GARDNER, MARCIA RUBENSTEIN GARDNER,
    SURETY TITLE CORPORATION, O.C.
    EQUITIES, METRO DEVELOPMENT, LLC,
    JOSEPH ZERBO and WAYNE ZERBO,
    Defendants.
    _______________________________________________________
    Argued October 27, 2015 – Decided November 24, 2015
    Before Judges Fisher, Rothstadt and Currier.
    On appeal from the Superior Court of New
    Jersey, Chancery Division, Camden County,
    Docket No. C-114-11.
    Joseph P. Grimes argued the cause for
    appellants   (Grimes   &    Grimes,   L.L.C.,
    attorneys; Mr. Grimes, on the brief).
    Hugh   A.  Keffer   argued   the  cause for
    respondents (Fidelity National Law Group,
    attorneys; Mr. Keffer, on the brief).
    The opinion of the court was delivered by
    FISHER, P.J.A.D.
    In this appeal, defendants Murray and Ellen Sufrin argue
    that the judge erred in granting summary judgment in favor of
    their   neighbors,         plaintiffs       Lisa     B.   Freedman        and    Jeffrey    C.
    Enda,     based      on      what       defendants        claim     is      an    erroneous
    interpretation        of     a    restrictive        covenant       which       purports    to
    limit, among other things, the removal of trees from plaintiffs'
    property.        Because the covenant is unclear and ambiguous, we
    affirm.
    The     parties'        cross-motions          for    summary    judgment       did    not
    generate    any      material       factual       disputes.       The     record    reveals
    that, on February 28, 2011, plaintiffs purchased a two-story,
    single-family residence on Covington Lane in Voorhees pursuant
    to a written contract that made no mention of a restrictive
    covenant.       In   1996,       however,     a    predecessor       in     title    —    O.C.
    Equities    —    purchased        the    property        and   obtained      a    deed    from
    defendants       that      subjected      the      conveyance       to     the    following
    restrictions:
    (1) No swimming pool shall be constructed on
    the property;
    2                                     A-4942-13T1
    (2) The garage and driveway of said property
    [shall] be constructed on the side of the
    property which does not abut sellers[']
    property;
    (3) The home to be constructed on the
    property [shall] be priced at a minimum of
    $275,000.00;
    (4) Any home constructed on the        property
    shall   retain   as   many   trees,     shrubs,
    understory plant life as possible.
    [51] The above restrictions will continue
    until such time as the sellers, Murray N.
    Sufrin and Ellen Sufrin, reside at [the
    abutting property].
    [6] Any transfer of property by sellers,
    Murray N. Sufrin and Ellen Sufrin, will void
    the restrictions.
    In 1999, O.C. Equities sold the property to Metro Development,
    which promptly sold the property to James and Marcia Gardner,
    who later sold it to plaintiffs.           Although the covenants in
    question were not memorialized in these later conveyances, we
    assume for present purposes that plaintiffs had actual knowledge
    of the restrictions in O.C. Equities' deed.2
    Once   plaintiffs   took   possession   of   this   heavily-wooded
    property,   they   considered   removing   some   trees,   particularly
    1
    We have inserted numbers for the last two unnumbered paragraphs
    only for ease of reference later in this opinion.
    2
    We note that the trial judge presumed plaintiffs did not have
    knowledge of the restrictions when they purchased the property.
    In our opinion, it makes no difference.
    3                           A-4942-13T1
    those with exposed roots that they believed caused a tripping
    hazard for one of their children, who has what they describe as
    "a balance issue."    Controversy arose when defendants observed a
    landscaper on plaintiffs' property marking trees for removal.
    After   advising   plaintiffs   of    the    1996     covenant,   defendants
    demanded that plaintiffs provide a landscaping plan for their
    approval.     Plaintiffs     provided       an    arborist    report    and     a
    landscaping plan; defendants rejected both.
    Consequently,   in    August    2011,       plaintiffs   commenced    this
    quiet-title action in the Chancery Division.             The parties cross-
    moved for summary judgment and, for reasons set forth in an oral
    decision, the judge granted plaintiffs' motion.3 In appealing,
    defendants argue that the test devised in Davidson Bros., Inc.
    v. D. Katz & Sons, Inc., 
    121 N.J. 196
    (1990), for determining the
    enforceability of restrictive covenants on commercial property
    should be applied here,4 and, also, that the judge erroneously
    3
    An amended complaint joined prior property owners and realtors;
    all those claims were later disposed of, rendering the summary
    judgment in question a final and appealable order.
    4
    We quickly dispense with defendants' initial contention —
    raised for the first time on appeal — that Davidson controls.
    That case involved the enforceability of a covenant that barred
    use of property for a commercial purpose, a circumstance not
    present here. In addition, we note that defendants concede the
    restrictions in question are not part of a neighborhood scheme
    that might require a different approach.       See Caullett v.
    (continued)
    4                                 A-4942-13T1
    determined     that    the   tree-removal       and    other    restrictions      were
    personal covenants that did not run with the land. We find all
    these    arguments       lacking     in       sufficient       merit     to   warrant
    discussion in a written opinion, R. 2:11-3(e)(1)(E), and add
    only the following brief comments.
    We reject defendants' contentions because the restrictions
    they would impose on their neighbors do not meet the strict
    construction standard imposed by the common law.                         As cogently
    described by then Judge (later Justice) Sullivan:
    Restrictions on the use to which land may be
    put are not favored in law because they
    impair alienability.  They are always to be
    strictly construed, and courts will not aid
    one person to restrict another in the use of
    his land unless the right to restrict is
    made manifest and clear in the restrictive
    covenant.
    [Bruno v. Hanna, 63            N.J.     Super.      282,    285
    (App. Div. 1960).]
    Although   Bruno      acknowledges    this      rule   of   strict      construction
    "will    not   be     applied   to   defeat      the    obvious        purpose   of    a
    restriction[,] . . . the meaning of a restrictive covenant will
    not be extended by implication and all doubts and ambiguities
    must be resolved in favor of the owner's unrestricted use of the
    land."     
    Id. at 287.
             This standard remains unchanged.                    See
    (continued)
    Stanley Stilwell & Sons, Inc., 
    67 N.J. Super. 111
    , 119 (App.
    Div. 1961).
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    Berger v. State, 
    71 N.J. 206
    , 215 (1976); Cooper River Plaza E.,
    LLC v. The Briad Grp., 
    359 N.J. Super. 518
    , 526 (App. Div.
    2003); Steiger v. Lenoci, 
    352 N.J. Super. 90
    , 95 (App. Div.
    2002).     Accordingly,        the   existence     of     ambiguities       does      not
    preclude summary judgment, as would be the case when construing
    a contract; to the contrary, in light of the test described in
    Bruno, ambiguities invite summary judgment in this context.
    With these principles in mind, we turn to the particular
    language employed to determine whether the alleged ban on tree
    removal was "made manifest and clear."                    
    Bruno, supra
    , 63 N.J.
    Super. at 285. We conclude that the covenant does not say what
    defendants now argue it says, and that the covenant is, at best,
    unclear.
    An        examination      of    the       fifth     paragraph,        in      fact,
    demonstrates that its neighboring provisions long ago lost any
    vitality once likely intended.             Defendants argue that this fifth
    paragraph should be understood as declaring that the first four
    provisions are to apply "so long as" defendants reside next
    door; in fact, the paragraph expresses the opposite:                    "The above
    restrictions      will   continue      until     such    time   as   the    sellers,
    Murray   N.    Sufrin    and   Ellen    Sufrin,        reside   at   [the   abutting
    property]" (emphasis added).           Because the most common meaning of
    "until" is "up to the time of," the only logical meaning to be
    6                                    A-4942-13T1
    attributed to this sentence is that the entire covenant became
    irrelevant once defendants took up residence next door. Unless
    we are to apply the standard of interpretation famously employed
    by Humpty Dumpty,5 defendants' contention that "until such time"
    should be translated as "so long as" must be rejected.6
    The   entirety    of   the    restrictive      covenant   suggests      its
    application   only     to   O.C.    Equities,       the   developer    of     the
    property, and supports the trial judge's determination that the
    covenant was personal to O.C. Equities and would not apply to
    future   owners.      Numerous     terms   reveal    this   intent    to    limit
    application to the builder-owner. The second paragraph mandated
    "construct[ion]" of the garage and driveway to the non-abutting
    side of the property; the third paragraph imposed a dollar value
    5
    "'When I use a word,' Humpty Dumpty said, in rather a scornful
    tone, 'it means just what I choose it to mean — neither more nor
    less.' 'The question is,' said Alice, 'whether you can make
    words mean so many different things.' 'The question is,' said
    Humpty Dumpty, 'which is to be master — that's all.'"      Lewis
    Carroll, Through the Looking Glass, ch. VI (1871).
    6
    Although the record is silent as to when defendants first
    resided in the neighboring home, it seems likely they actually
    were present when they imposed the restrictive covenant on O.C.
    Equities. That particular circumstance, however, would not
    suggest the wording of the fourth paragraph should be construed
    in some way other than the manner required by the common,
    everyday   meaning  of   the   words  actually   employed.  That
    circumstance would only suggest that defendant Murray Sufrin —
    an attorney and drafter of the restrictions — did not convey his
    intentions with the clarity needed to bind O.C. Equities, let
    alone successors in title, who could not be charged with
    knowledge of the identities of the next door residents.
    7                                A-4942-13T1
    on "[t]he home to be constructed on the property"; the fourth
    paragraph — the provision directly implicated here — required
    the retention of "as many trees . . . as possible" for "[a]ny
    home constructed" on the property (emphasis added). Indeed, the
    language of the fourth paragraph — retain "as many trees . . .
    as   possible"    —   cannot    be    logically   understood     as    expressing
    anything more than O.C. Equities' stipulation to leave as many
    trees standing during the construction of the residence as it
    could.   Viewing      these     restrictions      as    a    whole,    the     only
    reasonable     interpretation         limits   their     application     to    the
    builder of the residence and not any future owners.
    Upon    completion       of    construction,     the   language     of   the
    covenant lost any sensible meaning for subsequent owners.                       For
    example, even when interpreted as defendants urge, the covenant
    does not purport to prohibit all tree removal; it expresses only
    that "as many trees . . . as possible" be retained.                     What does
    that mean?       Does it mean that plaintiffs must retain as many
    trees    as   defendants       might     possibly      require   for     whatever
    unexpressed purpose they might have had in mind?                      Or as many
    trees as may be possibly retained, but perhaps giving the owners
    some ability to remove trees in order to keep the premises safe
    for occupants and visitors?              These questions are unanswerable
    because the covenant provides no clue as to what defendants were
    8                               A-4942-13T1
    attempting to preserve by extracting O.C. Equities' agreement to
    retain     as     many   trees   as    possible      when     constructing    the
    residence.        The common law's standard of strict construction
    bars looking elsewhere7 for a clear understanding.8
    Because the restrictive covenant: has no application once
    defendants occupied the neighboring property, an event that long
    ago occurred; can only reasonably be understood as binding O.C.
    Equities, an earlier owner that constructed the residence; and
    has   no   rational      application   to     the   current   owners'   use   and
    enjoyment of their property, we affirm the summary judgment that
    declared        the   restriction      null    and    void     and   henceforth
    unenforceable.
    Affirmed.
    7
    Defendants allude to Joyce Kilmer's Trees (1913) for guidance.
    Trees may be worthy of our admiration and wonder but does that
    mean all trees must be left standing until they fall of their
    own accord?
    8
    Even if the fourth paragraph imposed some sort of aesthetic
    guideline for the purpose of preserving a wooded view for
    defendants, no court could safely enforce that standard. See
    Ginsburg v. White, 
    139 N.J. Eq. 271
    , 273-74 (E. & A. 1947)
    (recognizing that "[a] contract which is incomplete, uncertain
    or indefinite in its material terms will not be specifically
    enforced in equity").
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