ALYSSE GERBINO VS. STATE OF NEW JERSEY (C-000119-19, OCEAN COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0045-19
ALYSSE GERBINO and
DECKERT ENTERPRISES, LLP,
Plaintiffs-Respondents,
v.
STATE OF NEW JERSEY,
Defendant-Respondent,
and
THE OCEAN BEACH & BAY
CLUB,
Defendant-Appellant.
_____________________________
Argued February 24, 2021 – Decided March 23, 2021
Before Judges Fuentes, Rose & Firko
On appeal from the Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No. C-
000119-19.
Gregg S. Sodini argued the cause for appellant (Cutolo
Barros LLC, attorneys; Gregg S. Sodini, on the brief).
Nicolas Seminoff, Deputy Attorney General, argued the
cause for respondent State of New Jersey (Gurbir S.
Grewal, Attorney General, attorney; Melissa H. Raska,
Assistant Attorney General, of counsel; Nicolas
Seminoff, on the brief).
Brian T. Giblin, Jr. argued the cause for respondents
Alysse Gerbino and Deckert Enterprises, LLP (Giblin
& Gannaio, attorneys; Brian T. Giblin, Jr., on the brief).
PER CURIAM
This case concerns a claim of ownership of an accreted strip of
uncultivated beach property located along the westerly side of West Bay View
Drive in the Township of Toms River. The State of New Jersey asserts it has
tidelands ownership of this uncultivated beach up to the former tidally-flowed
mean high water line that covers most of the beach area and a part of the adjacent
roadway. Plaintiffs Alysse Gerbino and Deckert Enterprises, LLP own property
on either side of this disputed land and claim they have acquired title to it by
adverse possession. At some point, plaintiffs placed signs on the disputed beach
property that read: "Private Property-No Trespassing-Violators Will be
Prosecuted."
On September 13, 2017, plaintiffs filed a one-count civil action in the Law
Division against the State of New Jersey and the Ocean Beach and Bay Club
(OBBC), seeking a judicial determination that they had acquired title to this
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property by adverse possession. Default was entered against the State on or
about November 14, 2017, but was later vacated. 1 OBBC filed a responsive
pleading and the parties engaged in discovery. On February 15, 2019, OBBC
filed a motion for summary judgment to dismiss plaintiffs' complaint as a matter
of law based on the "indisputable fact" that the property at issue is owned by the
State and consequently not subject to any private claims based on adverse
possession. Plaintiffs responded to OBBC's motion and filed a cross-motion for
leave to file a first amended complaint.
On April 8, 2019, the parties2 appeared before the Law Division judge
assigned to this case for a settlement conference. Although the appellate record
does not include a verbatim account of what was discussed in this conference,
plaintiffs and OBBC do not dispute that they entered into a settlement agreement
through which the Law Division judge dismissed plaintiffs' complaint without
prejudice and transferred the case to the Chancery Division, General Equity Part.
Paradoxically, notwithstanding the "settlement agreement reached two
days earlier," the Law Division judge issued a formal order on April 10, 2019,
1
There is no record that the State was served with process in accordance with
Rule 4:4-4(a)(7).
2
The State did not participate in this conference.
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in which he vacated the default entered against the State on November 14, 2017,
denied OBBC's summary judgment motion, granted plaintiffs' motion to file "a
first amended complaint," and transferred the matter to the Chancery Division
to proceed as an "action to quiet title." The judge supported this order in a
memorandum of opinion attached thereto.
Plaintiffs did not file an amended complaint in the Chancery Division,
General Equity Part in accordance with the Law Division's April 10, 2019 order.
Instead, on May 1, 2019, plaintiffs' counsel wrote a letter to the Law Division
judge requesting a telephone conference to resolve certain objections plaintiffs
had with the terms included in the form of order submitted by OBBC's counsel.
On May 8, 2019, OBBC filed a motion in the Law Division to compel plaintiffs:
(1) to remove the "No Trespassing" signs on the disputed property; and (2)
prohibit plaintiffs from restricting access to the property to members of OBBC
and/or the general public. Plaintiffs filed a cross-motion to enforce the April 8,
2019 agreement. The State did not participate in these proceedings.
In an order dated June 5, 2019, the Law Division judge noted the parties
had "withdrawn" the pending motions, again transferred the case to the Chancery
Division, General Equity Part, and stated the parties were "permitted to refile
their motions in the Chancery [D]ivision at the discretion" of the Presiding Judge
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of the General Equity Part. OBBC filed a motion in the General Equity Part
seeking a temporary restraining order (TRO) enjoining plaintiffs from placing
or erecting "No Trespassing" signs on the disputed property.
On July 26, 2019, OBBC's counsel appeared before the General Equity
Part to argue the motion. As OBBC's counsel made clear, "the only relief we're
seeking is to have certain signs removed on the subject property." In response,
plaintiffs' counsel represented to the Equity Judge that his clients were willing
to abide by the settlement agreement reached in the Law Division and refile their
complaint and remove the "No Trespassing" signs pending the outcome of the
quiet title action.
After considering the arguments of counsel, the Equity Judge reviewed
the procedural history of the case and found it was "uncontested" that the parties
agreed to dismiss the action that originated in the Law Division and "consult
with the State of New Jersey to determine whether they wished to participate in
the matter[.]" With respect to OBBC's motion for a TRO, the judge applied the
well-settled standards adopted by the Supreme Court in Crowe v. De Gioia, 90
N.J. 126, 132-34 (1982), and denied the motion. At the conclusion of oral
argument, OBBC's counsel asked the judge the following question: "Your
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Honor, just a clarification, does that end the proceedings here?" The judge
responded: "That does. Unless . . . and until you file a new claim."
Based on this record, the General Equity judge entered an order that: (1)
denied OBBC's motion for a TRO; (2) granted plaintiffs' cross-motion to enforce
the settlement agreement that dismissed plaintiffs' cause of action in the Law
Division and reserved the right to file a quiet title action in the General Equity
Part; and (3) preserved the parties' rights "in the event that any party files the
same, or similar action in the future[.]"
Rule 2:2-3(a)(1) provides that "appeals may be taken to the Appellate
Division as of right . . . from final judgments of the Superior Court trial
divisions[.]" Our Supreme Court has made clear that "[g]enerally, an order is
considered final if it disposes of all issues as to all parties." Silviera-Francisco
v. Bd. of Educ. of City of Elizabeth, 224 N.J. 126, 136 (2016). Thus, "[b]y
definition, an order that 'does not finally determine a cause of action but only
decides some intervening matter pertaining to the cause[,] and which requires
further steps . . . to enable the court to adjudicate the cause on the merits[,]' is
interlocutory." Moon v. Warren Haven Nursing Home, 182 N.J. 507, 512 (2005)
(alterations in original) (quoting Black's Law Dictionary 815 (6th ed. 1990)).
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Here, the General Equity judge's decision only dismissed a motion for a
TRO. No trial judge made a final decision resolving the underlying merits of
plaintiffs' claim of ownership over public property by adverse possession or
OBBC's counter argument. Furthermore, the decision of the General Equity Part
does not include or affect the State, an indispensable party in this case. The
State not only did not have the opportunity to participate at the trial level, the
Attorney General argues that the State's title claims in tidelands cannot be lost
by adverse possession. O’Neill v. State Hwy. Dep't, 50 N.J. 307, 320 (1967).
The State also argues that the Legislature has designated the Tidelands
Resource Council as "the public body responsible for the stewardship of the
State’s riparian lands." N.J.S.A. 12:3-12.1. This argument directly questions
the trial court's subject matter jurisdiction over the central issue in this case.
"Whether presiding over a case or deciding an appeal, judges have an
independent, non-delegable duty to raise and determine whether the court has
subject matter jurisdiction over the case whenever there is a reasonable basis to
do so." Murray v. Comcast Corp., 457 N.J. Super. 464, 470 (App. Div. 2019).
In this light, we dismiss this appeal as interlocutory.
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