LAKE GRINNELL ASSOCIATION VS. LAWRENCE POST (DC-002498-15, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-3224-15T2

LAKE GRINNELL ASSOCIATION,

Plaintiff-Respondent,

v.

LAWRENCE POST, a/k/a LARRY
POST and KAREN YORK,

Defendant-Appellants.

_________________________________

Submitted July 11, 2017 – Decided October 26, 2017

Before Judges Nugent and Accurso.

On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No. DC-
002498-15.

Carter, Van Rensselaer & Caldwell, PC,
attorneys for appellants (William J. Caldwell,
on the brief).

Fein, Such, Kahn & Shepard, PC, attorneys for
respondent (Alvin L. Darby, on the brief).

PER CURIAM

Defendants Lawrence Post and Karen York own a lakefront

residence and enjoy an appurtenant easement for use of the lake,

Lake Grinnell, in Sussex County. They appeal from a Special Civil
Part order for summary judgment requiring them to pay $2,158.61

as their pro rata share of maintenance fees for the lake and a

dam. Because genuine issues of material fact should have precluded

summary judgment, we vacate the order and remand for further

proceedings.

Plaintiff Lake Grinnell Association (the Association)

commenced this collection action by filing a single-page complaint

in the Special Civil Part. The collection complaint's first three

counts state:

FIRST COUNT: There is due from defendant(s)
the sum of $2,050.83, for easement maintenance
and/or dues for Lake Grinnell Association.
Payment has been demanded and has not been
made.

SECOND COUNT: Plaintiff(s) sue(s)
defendant(s) for easement maintenance and/or
dues for Lake Grinnell Association upon the
promise by defendant(s) to pay the agreed
amount. Payment has been demanded and has not
been made.

THIRD COUNT: Plaintiff(s) sue(s) defendant(s)
easement (sic) maintenance and/or dues for
Lake Grinnell Association upon the promise of
defendant(s) to pay a reasonable price for the
same. Payment has been demanded and has not
been paid.

The Association demanded judgment in the amount of $2,050.83 plus

interest, fees, and costs.

The complaint was false in several respects. As the summary

judgment motion would disclose, the Association was not seeking

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dues from defendants. Contrary to the complaint's second and

third counts, defendants had never made a promise to pay dues,

maintenance fees, or "a reasonable price for same." In fact,

there had been a longstanding dispute between the Association and

defendants and their predecessors about defendants' right to enjoy

the appurtenant easement and their obligations for doing so. Thus,

underlying what appeared to be a relatively small collection action

was a claim for equitable relief requiring adjudication of the

benefits and burdens of dominant and servient estates.

Four months after filing its complaint, the Association filed

a summary judgment motion. The Association supported the motion

with a certification from its vice-president. The certification

and attachments establish that the Association was formed as a

non-profit corporation in 1946. According to the certificate of

incorporation, seven individuals formed the Association for the

following purposes:

1. To encourage the development and
growth of Lake Grinnell . . . ; to coordinate
and unify the interest and influence of the
owners of properties at said Lake Grinnell and
the residents thereof for a more effectual
protection and promotion thereof; to formulate
and carry into effect all projects for the
improvement of the health, general welfare,
and the cultural and recreational requirements
of the residents and users of Lake Grinnell;
to aid in the development of any legitimate
enterprise that will tend to increase the
facilities and advantages of Lake Grinnell,

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 and to promote general good order and
government.

2. To purchase or otherwise acquire and
construct and to hold, maintain, buy, levy,
convey, invest, use, enjoy and distribute both
real and personal property or any interest
therein, and to borrow moneys for said
purposes for the uses and benefit of the
members of this organization and for the
promotion of the objects of this corporation.

Seventeen years later, in 1963, forty-one association members

with properties around the lake contributed funds to the

Association. The Association used the funds to acquire title to

approximately thirty-six acres of lake bottom from the Lehigh and

Hudson River Railroad Company. The lake is approximately one mile

long and consists of approximately forty-five acres. The deed

conveying title to the lake bottom acreage was expressly "[subject]

to the rights of others to use the waters of Lake Grinnell."

According to the vice-president's certification, the homeowners

who contributed funds to purchase the lake bottom property are now

designated as "owner-members" under the Association's by-laws.

The Association's vice-president further averred that since

1963, the Association has assumed responsibility for weed control

and water quality maintenance. Additionally, the Association has

taken on the responsibility of paying real estate taxes, liability

insurance premiums, and fees to "legal counsel to protect [the

homeowners'] property interests and quality of life." As of the

4 A-3224-15T2
date the vice-president filed his certification, weed control was

the largest annual expense.

The vice-president explained that the Association's

Treasurer's Report for the previous year is presented at an annual

July meeting. The Association's fiscal year ends June 30. The

"homeowners" vote to approve the report.1 Non-members of the

Association, such as defendants, are then assessed a proportionate

share of those items in the Treasurer's Report representing the

previous year's maintenance of the lake and dam.

The vice-president attached to his certification the

treasurer's reports for the fiscal years beginning with 2009-2010

and ending with 2013-2014. The vice-president also attached to

his certification the "Book Account" for each defendant. The Book

Account was printed on the Association's letterhead, included the

names and addresses of defendants as "tenants in common," and

contained the following under the designation, "Book Account":

RE: 29 Lake Grinnell Lane
2010 lake maintenance 195.95
2010 dam assessment 400.00
2011 lake maintenance 199.82
2012 lake maintenance 215.67
2013 lake maintenance 232.49
2013 maintenance assessment 500.00
2014 lake maintenance 306.90
$2,050.83

1
The certification is not clear as to whether non-members are
permitted to vote or challenge the report.

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 The vice-president explained in his certification that in

2010 the Association levied a $400 dam assessment "against all

[fifty] homeowners, for expenses incurred and to be incurred in

connection with inspections, reports, surveys and repairs required

by the New Jersey Department of Environmental Protection, Dam

Safety Section." The vice-president further certified that "[a]ny

unused portion of the $400 [would] be used for future dam

expenses." According to the vice-president's certification, in

2013, the Association assessed a $500 maintenance fee against all

fifty homeowners as the result of the Association having incurred

$25,000 in legal fees "in 2012-2014 to protect the water quality

of the lake from a threatened quarry operation on the adjoining

property. This was a necessary expense to maintain the excellent

quality of water in Lake Grinnell. Refer to Treasurers (sic)

Reports showing the disbursements." The reports referenced in the

certification have a line item entitled "Legal" with no other

explanation.

The vice-president did not explain when the alleged Book

Accounts were prepared or when the Association notified defendants

of the assessments contained in the so-called Book Accounts. The

vice-president's certification contained the conclusory assertion

that defendants' balances from the Book Accounts were due and

6 A-3224-15T2
owing, and they had adamantly refused to pay any maintenance or

dam expenses.2

Defendants disputed much of the vice-president's

certification and filed a certification from Lawrence Post in

opposition to the Association's summary judgment motion. He

averred his parents purchased defendants' lakefront property in

1959, four years before the Association purchased the lake bottom

land. Thereafter, the Association attempted to exclude non-

members from using the lake. This resulted in a lawsuit in which

the court dismissed the Association's complaint and issued a

judgment in favor of defendants' predecessor in title. The court

determined that defendants and other members not part of the

Association had "acquired from their respective grantors an

easement appurtenant to the lands described in [the] Deeds in the

waters of Lake Grinnell."3

Defendant Post next certified that in 2001, the New Jersey

Department of Environmental Protection notified the municipality

and the Association that a dam required periodic inspection.

2
This averment directly contradicts the assertion in counts two
and three of the complaint that defendants promised to pay either
the assessments or the reasonable value of the services the
Association performed.
3
A copy of the court's oral decision and implementing order are
included in the record on appeal.

7 A-3224-15T2
According to Post, "[t]his [need for inspection] occurred because

195 feet of the shoreline is [the municipality's road] and the

road has a spillway beneath the pavement, installed when the road

was improved to its present state in 1900 to release water during

10, 50, and 100 year storm events." Post claimed the Association

disputed liability and responsibility for the dam for many years,

until 2015, when the municipality and the Association signed a

shared responsibility agreement. Post asserts the Association

entered the agreement based on the regulatory definition of a

dam's "owner" or "operator," and by virtue of the Association's

unauthorized use of the dam for various purposes.

Post further asserted that in July 2006, the Association

"began a financial offensive against [defendants] . . . when it

demanded seven years of delinquent 'dues' and 'maintenance and

repair costs.'" Further, Post claims that notwithstanding the

judgment entered against the Association in the earlier lawsuit,

the Association has threatened defendants' water rights in Lake

Grinnell. Post asserted defendants had responded to every

Association demand for payment of dues and maintenance costs by

reiterating they were not association members, wanted nothing to

do with the Association's initiatives, and could not be held

responsible by the Association for debts they did not incur,

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particularly those related to the improper and unauthorized use

of what defendants considered the municipal dam and spillway.

In 2015, in a letter from the Association's counsel to

defendants, the Association, through counsel, finally conceded

defendants "[were] not . . . member[s] of the Association and

. . . that under those circumstances, [defendants were] not

obligated to pay [Association] dues." The same letter asserted,

notwithstanding defendants' non-membership in the Association,

defendants were legally "obligated to contribute to the

maintenance and repair of [their] easement." Defendants disputed

legal responsibility for maintenance fees, particularly fees

involving the dam.

Based on these moving and opposing certifications, and the

decision and order filed in the Association's previous lawsuit,

the judge sitting in the Special Civil Part granted summary

judgment in favor of the Association. The judge concluded that

while defendants had no contractual obligation to contribute

toward maintenance of the easement, because they were owners of

the easement's dominant estate, they had, along with the right to

the use of the easement, the legal duty to contribute toward its

maintenance.

The judge also determined the Association, as owner of the

majority of the land beneath the lake, had authority to make

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assessments against non-member property owners to cover the costs

of needed repairs to the dam. With respect to the dam, the judge

concluded that since defendants began enjoying the benefit of

their easement, "the lake and dam have undoubtedly suffered wear

and tear over the years." Lastly, the judge determined the fees

assessed by the Association were reasonable.

Defendants also raised as defenses collateral estoppel, the

entire controversy doctrine, and res judicata. The judge rejected

these defenses and filed an implementing order. This appeal

followed.

A party is entitled to summary judgment when, viewed in the

light most favorable to the non-moving party, "the pleadings,

depositions, answers to interrogatories and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact challenged and that the moving party

is entitled to a judgment or order as a matter of law." R. 4:46-

2; accord Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,

528-29 (1995). Our review of an order granting summary judgment

is de novo. Jones v. Morey's Pier, Inc., 230 N.J. 142, 153 (2017);

Bhagat v. Bhagat, 217 N.J. 22, 38 (2014) ("An appellate court

reviews an order granting summary judgment in accordance with the

same standard as the motion judge.").

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 Here, the motion record did not show there was no genuine

issue as to any material fact challenged. Moreover, the parties

had not developed an adequate record on which the court could

adjudicate the fact-sensitive equitable considerations underlying

what appeared from the complaint to be a relatively small

collection action. To the contrary, in order to ascertain the

Association's relatively minor legal claim, the court was required

to adjudicate the parties' rights and obligations concerning an

appurtenant equitable easement. Such an adjudication has long-

term implications, including the possible future liability of

defendants to contribute to the expenses of maintenance or perhaps

replacement of an existing dam.4

Indisputably, defendants have an easement appurtenant to

their property to use the waters of Lake Grinnell for boating,

fishing, bathing, and other recreational purposes. "An easement

creates a nonpossessory right to enter and use land in the

possession of another and obligates the possessor not to interfere

with the uses authorized by the easement." Restatement (Third)

of Prop.: Servitudes § 1.2(1) (2000). The term "'[a]ppurtenant'

4
In view of the significant underlying equitable issues, we
question whether the Special Civil Part should have decided this
matter and not transferred the case to the Chancery Division.
Civil actions cognizable in the Special Civil Part, with exceptions
not relevant here, are those "seeking legal relief when the amount
in controversy does not exceed $15,000." R. 6:1-2(a)(1).

11 A-3224-15T2
means that the rights or obligations of a servitude are tied to

ownership or occupancy of a particular unit or parcel of land."

Id. § 1.5(1). "[T]he interest in land with which [an easement]

runs may be called the . . . 'dominant' estate." Id. §1.1(1)(b).

The interest in land subject to an easement "may be called the

'burdened' or 'servient' estate." Id., § 1.1(1)(c).

In Island Improvement Association v. Ford, 155 N.J. Super.

571, 574 (App. Div. 1978), a case concerning maintenance of private

roads in a privately developed residential area, a panel of this

court, "[c]onviced that with the benefit ought to come the burden,"

held that "absent agreement to the contrary, . . . the obligation

to maintain [an easement] devolves upon the dominant tenant."

(Citing 2 Thompson, Real Property, § 428 at 709 (1961)). The

panel emphasized "[t]his is certainly the rule where the easement

is solely for the benefit of the dominant estate." Id. at 574-

75. In so holding, the panel explained, "[i]n our judgment there

are compelling equitable reasons to apply the rule to the situation

before us even though there may well be incidental use of these

roads by others than the individual landowners." Id. at 575

(emphasis added).

In the case before us, we can glean from the record no

evidence from which one can conclude there are "compelling

equitable reasons" to require defendants to contribute to

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maintenance of the dam. That is not to say such reasons either

do or do not exist. The summary judgment record contains

insufficient information to support either conclusion.

The Association relies upon Lake Lookover Property Owner's

Association v. Olsen, 348 N.J. Super. 53 (App. Div. 2002). In

that case, the owners of property surrounding an artificially

constructed lake appealed from an order requiring similarly

situated property owners to contribute to the cost of repairing

and reconstructing a dam on the lake. Id. at 54. The defendants'

lakeside lots were created when the developers created the lake

by constructing the dam in question. Id. at 54-55. The court

held "the several property owners hold 'separate easements' in the

same servient estate (Lake Lookover) and thus have a duty to each

other to contribute to the cost of repairs and maintenance that

are required to preserve that lake." Id. at 67.

Additionally, in rejecting the defendant's argument that the

Lake Lookover Property Association had adopted an improper role

and assumed duties it had no right to assume with respect to

operation of the dam, the court noted the original development

company as well as the Department of Environmental Protection

(DEP) had deemed the property association the de facto operator

of the entire lake community. Id. at 69. The court noted the

characterization of the property owner as a de facto operator of

13 A-3224-15T2
the entire lake community was supported by the evidence adduced

before the trial court, which established the association had

"consistently maintained that the lake [was] the center of the

. . . community." Ibid.

The community was created by the original
developers of the lake and builders of the
dam. The homes were built on the lots laid
out by the original developers of the lake and
the surrounding area are there because of the
lake. In 1997, when the [court] initially
ordered a lowering of the water level in order
to reduce pressure on the dam, it was the
Association that led the effort to induce [the
court] to stay the order - which [it] finally
did. It was the Association that pointed out
the dire consequences of such action in the
past, and the likelihood that there would be
similar adverse effects in the future. So far
as appears, none of the defendants disagree
with the Association's taking the lead role
in that earlier litigation or in the
negotiations with the Development Company and
the DEP.

[Ibid.]

The case now before us has significant factual differences

from the facts in Lake Lookover. According to the certifications

in the present case, Lake Grinnell was not formed by a dam; it is

a naturally occurring lake. The record contains scant evidence

concerning the construction of the dam and its purpose, though

defendants claim the municipality built the dam in conjunction

with the improvement of a municipal road. In addition, here,

unlike in Lake Lookover, the parties presented the trial court

14 A-3224-15T2
with virtually no details about what role the Association played

with respect to prior use of the dam; if, when, and why the

Association operated the dam; and why the Association agreed to

bear fifty-percent of the responsibility for the dam's maintenance

during the DEP litigation. Perhaps most significantly, there is

no evidence on the motion record about how the dam's operation

contributes to defendants' enjoyment of the easement, unlike Lake

Lookover, where without the dam there would be no lake.

Aside from the issues concerning the dam, the summary judgment

record does not support the judge's finding that the maintenance

fees the Association charged defendants were reasonable. For

example, the Association's conclusory assertion that fees paid to

an attorney regarding a neighboring use of property was necessary

to maintain the quality of water in Lake Grinnell is not supported

by any underlying facts or even any description of the nature of

the role the attorney played.

To be clear, we are not suggesting defendants have no

obligation to contribute a fair share to the maintenance of the

appurtenant easement they enjoy. Nor should this opinion be

construed as suggesting that defendants either do or do not have

to contribute to the costs of maintaining the dam. We merely hold

that on the scant summary judgment record there are inadequate

15 A-3224-15T2
facts from which a court can analyze and resolve the equitable

considerations underlying the parties' contentions.

For these reasons, we vacate the order for summary judgment

and remand this matter, in the first instance, to the Chancery

Division. There, the judge can conduct a preliminary conference,

determine what discovery is needed to resolve the parties' claims,

determine whether other parties should be added, and determine

whether this action should remain in the Chancery Division.

The order of summary judgment is vacated. This matter is

remanded to the Chancery Division for further proceedings

consistent with this opinion. We do not retain jurisdiction.

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