Opinion
DOCKET NO. A-1221-11T2
06-19-2012
RAVEN ASSOCIATES - TOMS RIVER, Plaintiff-Appellant, v. HOLUALOA TOMS RIVER, LLC, Defendant-Respondent, and FITNESS AQUATIC CENTER & FITNESS FOR WOMEN, MCINTYRE'S PUB, SPIRITS UNLIMITED, AND WEST MARINE, Defendants.
Edward F. Liston, Jr. argued the cause for appellant. John Paul Doyle argued the cause for respondent (Carluccio, Leone, Dimon, Doyle & Sacks, LLC, attorneys; Mr. Doyle, of counsel; Christopher J. Dasti, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Lihotz.
On appeal from the Superior Court of New
Jersey, Law Division, Ocean County, Docket
No. L-472-05.
Edward F. Liston, Jr. argued the cause for
appellant.
John Paul Doyle argued the cause for
respondent (Carluccio, Leone, Dimon, Doyle &
Sacks, LLC, attorneys; Mr. Doyle, of
counsel; Christopher J. Dasti, on the
brief).
PER CURIAM
Plaintiff Raven Associates - Toms River appeals from the denial of its motion purportedly seeking to enforce the terms of an order regarding the use and control of a pylon advertising sign, positioned on its leasehold at the common entrance of a shopping center consisting of two adjacent buildings located on separate contiguous lots. Plaintiff leases one parcel and defendant, Holualoa Toms River, LLC, owns the second parcel (Parcel II), which it leases to defendants Fitness Aquatic Center & Fitness for Women, McIntyre's Pub, Spirits Unlimited, and West Marine.
Plaintiff's initial action sought exclusive control of the pylon sign. Following review of the parties' cross-motions for summary judgment, the Law Division judge concluded, as a matter of law, defendants' rights in the pylon sign stemmed from the assignment of rights contained in a prior tenant's lease memorandum assigned to defendants, which permitted the shopping center tenants to use the sign. The judge dismissed plaintiff's complaint with prejudice and ordered plaintiff "not to destroy or impede any of [d]efendants' ability to use the . . . sign" so "long as the aforementioned recorded lease remains in effect[.]"
Both parties appealed portions of the final judgment. We incorporate by reference that portion of our opinion, which recited a detailed history of the creation of the shopping center, its subdivision, and the origination of the parties' tenancy interests, specifically addressing defendants' access to the pylon sign. Raven Assocs. Toms River v. Holualoa Toms River, LLC, No. A-0691-07 (App. Div. July 16, 2010) (slip op. at 2-7).
In respect of plaintiff's challenges, we affirmed the September 7, 2007 summary judgment dismissal of plaintiff's complaint, concluding defendants held contractual interests in the use of the sign, explaining:
We omit discussion of issues raised by defendants in their cross-appeals as they are not relevant to the current matter.
[Defendants' property] rights, allowing the tenants . . . to identify their businesses on the sign, are expressly set forth in the documents presented. First, both parties rely on the Kmart lease as the controlling document. Second, plaintiff concedes it was assigned the lease, as amended by the memorandum, by the July 2, 1979 assignment agreement . . . , which references that [the assignee] "does grant, convey, assign, transfer and set over" to plaintiff the Kmart lease "as amended, a memorandum of lease thereof having been recorded[.]" Third, the memorandum, as cited, is the document recorded on October 25, 1974, which discusses that a sign would be erected by the [then] landlord Goodriver in the common parking lot area of the shopping center. Further, the memorandum states "the shopping center pylon sign" would bear the name of the shopping center, to which Kmart's identification would be affixed and "may contain thereon the names or identificationWe concluded "defendants' rights with respect to the sign are unmistakable, making summary judgment appropriate." Id. at 15.
signs of other tenants of the shopping center."
Finally, the A&P lease provides that "[A&P] may erect at its own cost and expense its logo on the pylon sign to be erected by others at the location[.]" Holualoa, as the owner of Parcel II, in the chain of title . . . , obtained ownership subject to the A&P lease. We determine the language expressed by these agreements is clear and unambiguous and taken together, . . . grant a right to Holualoa's tenants to have their businesses included on the sign.
[Id. at 13-14.]
More than one year later, plaintiff moved for enforcement of the initial judgment, arguing a "newly discovered" document negated defendants' rights to advertise their businesses on the pylon sign. Plaintiff relied on a 1999 recorded document purportedly discharging the A&P memorandum of lease. Defendants challenged the scope and effect of the discharge agreement, maintaining the cancellation document "had nothing to do with signage, nothing to do with [the] K-Mart lease, [and] nothing to do with the fact that [plaintiff] was burdened by that lease, which is still in effect[.]" Also, defendants raised procedural challenges attacking plaintiff's attempt to use a document that was available during the prior litigation. Judge Gizinski, who was newly assigned to review the matter, considered plaintiff's motion in light of our opinion and determined defendants' leasehold rights, including use of the pylon sign, resulted from several documents and remained unaltered by the discharge document. The motion judge found:
The Appellate Division's decision was based upon the interpretation of multiple documents and not just the A&P memorandum of lease as plaintiff contends. In fact, the A&P lease was mentioned last in the Appellate Division's discussion of multiple documents. The fact that the A&P memorandum of lease was not in effect at the time has no bearing on the Appellate Division's decision, because there still exists other independent bases for the decision.Plaintiff's motion for enforcement of litigant's rights was denied and this appeal ensued.
Simply put, plaintiff's argument that defendants' rights were granted solely by virtue of the A&P lease is not true. But, as defendants point out, even if the discharge of the A&P memorandum of lease was determinative, plaintiff[] should have raised this issue during the pendency of the previous matter before plaintiff's complaint was dismissed with prejudice. There is no excuse for plaintiff not having raised this issue as the A&P memorandum of lease was recorded on February 1, 1999, more than six years before the complaint was filed.
Rule 1:10-3 allows a litigant to seek relief by moving for the forced compliance with a court order. Loigman v. Twp. Comm. of Middletown, 308 N.J. Super. 500, 503-04 (App. Div. 1998). Accord Abbott v. Burke, 206 N.J. 332, 342 n.3 (2011) (stating Rule 1:10-3 "is a means to 'coerce [a party] into compliance with the court's order'" (alteration in original) (quoting Essex Cnty. Welfare Bd. v. Perkins, 133 N.J. Super. 189, 195 (App. Div.), certif. denied, 68 N.J. 161 (1975))).
On appeal, plaintiff argues the trial court erroneously considered its enforcement motion "as an opportunity to review the Appellate Division's reasoning in affirming the order at issue rather than enforcing the order itself." Plaintiff suggests the trial court erred by "ignoring and failing to enforce the clear and unambiguous language of the [o]rder of September 7, 2007[,]" and by "reviewing the rationale behind" the September 7, 2007 order.
Plaintiff's arguments lack sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We add these brief comments.
The discharge agreement appears to affect a September 22, 1975 memorandum of lease related to the original indenture, dated August 25, 1975, wherein A&P sublet a portion of Parcel II. Because plaintiff chose not to include this issue in the prior litigation, the factual context of the discharge agreement cannot be conclusively discerned. From our prior review, we know Parcel II was leased by its owner to Goodrich Realty Group of New Jersey (Goodrich) and Goodrich sublet to A&P, making the sublease agreement "subject to the terms of Goodrich's lease with [the owner]." Raven Assocs. Toms River, supra, slip op. at 5. Thereafter, the owner sold its interest to Tomver Associates, which along with A&P, executed the 1999 discharge of memorandum of lease plaintiff now presents.
Nevertheless, our prior opinion examined several expressed contractual provisions underpinning defendants' use of the pylon sign, other than the rights obtained under the assigned A&P lease. These documents included the rights set forth in the July 2, 1979 assignment agreement between plaintiff and the owners of Parcel I, the memorandum of lease "recorded on October 25, 1974, which discusse[d] that a sign would be erected by the landlord Goodriver in the common parking lot area of the shopping center[,]" and the A&P lease, which "Holualoa, as the owner of Parcel II, . . . obtained[.]" Id. at 13-14. We disagree with plaintiff's contention that production of the discharge agreement evinces defendants' rights to use the pylon sign had been extinguished. Plaintiff's constrained view of the September 7, 2007 order as reviewed by our prior determination affirming the dismissal of its complaint is rejected as untenable. See Sisler v. Gannett Co., 222 N.J. Super. 153, 159 (App. Div. 1987) (stating judges must respect unreversed decisions on questions of law made by the same or a higher court), certif. denied, 110 N.J. 304 (1988). Judge Gizinski's order denying plaintiff's motion need not be disturbed.
Moreover, plaintiff's application was designed to collaterally attack the prior determination by interjecting evidence that was available but not offered or considered in the prior litigation. Contrary to its assumption, the discharge document now relied upon was not "newly discovered evidence" that "would probably alter the judgment or order." See R. 4:50-1(b) (allowing a party to seek a new trial where newly discovered evidence, unavailable at the time of the prior litigation or "by due diligence could not have been discovered in time," may alter the result). The recorded document was readily available, however, plaintiff chose not to raise a challenge based on the discharge. We conclude no injustice results from precluding its indirect attempt to reopen the prior judgment. Badalamenti v. Simpkiss, 422 N.J. Super. 86, 103 (App. Div.), certif. denied, 208 N.J. 600 (2011).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION