EDWARD RABBITT VS. JOHN GREED (C-000032-18, CAPE MAY COUNTY AND STATEWIDE)

Court: New Jersey Superior Court Appellate Division
Date filed: 2021-04-12
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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-0474-19

EDWARD RABBITT,
EILEEN RABBITT, and
GERARD SWEENEY,

          Plaintiffs-Respondents,

v.

JOHN GREED and
THERESA GREED,

     Defendants-Appellants.
_________________________

                   Argued October 15, 2020 – Decided April 12, 2021

                   Before Judges Ostrer and Vernoia.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Cape May County, Docket No.
                   C-000032-18.

                   Anthony Argiropoulos argued the cause for appellants
                   (Epstein Becker & Green, PC, attorneys; Anthony
                   Argiropoulos, of counsel and on the briefs; Robert M.
                   Travisano and William Gibson, on the briefs).
            Mark P. Asselta argued the cause for respondents
            (Brown & Connery, LLP, attorneys; Mark P. Asselta,
            on the brief).

PER CURIAM

      This appeal requires that we determine the validity of the trial court's

interpretation of a setback deed restriction. Defendants John Greed and Theresa

Greed argue the court erroneously interpreted the deed restriction, the restriction

is ambiguous and therefore unenforceable, and the court erred by considering

extraneous evidence to support its interpretation of the restriction. We affirm.

                                        I.

      In 2017, defendants purchased a home on beachfront property located on

the south side of the eastern terminus of East 15th Street in Avalon. 1 The

existing home on the property was set back twenty-five feet from the right-of-

way line of East 15th Street. Defendants planned to demolish the home and

replace it with a substantially larger home, a portion of which was to be

constructed less than twenty-five feet from East 15th Street's right-of-way line.




1
  Defendants' property is designated as Block 15.01, Lots 19.02/20.02 on
Avalon's tax map.


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      Defendants' property is subject to a 1967 deed restriction that is at the

center of the dispute between the parties. The deed restriction requires that the

property have "a 25[-]foot streetside setback from 15th Street."2

      Following their purchase of the property, defendants demolished the

existing home and applied to the New Jersey Department of Environmental

Protection and the Borough of Avalon for permits for the construction of the

planned larger home. As part of the permit application process, the owners of

nearby properties were notified about the planned construction of defendants'

new home.

      Plaintiff Gerard Sweeney owns the property immediately to the west of

defendants' property on the south side of East 15th Street, and plaintiffs Edward

Rabbitt and Eileen Rabbitt own the property immediately to the west of

Sweeney's property. 3    Plaintiffs objected to the planned construction of

defendants' new home. Plaintiffs claimed the home violated the 1967 deed


2
  The deed further provides the restriction "shall be binding upon the . . . heirs
and assigns" of the grantees to whom the deed conveyed title to the property i n
1967. Defendants do not dispute they are assignees of the setback deed
restriction as subsequent grantees of the property conveyed by the 1967 deed.
3
  Sweeney's property is designated on Avalon's tax map as Block 15.01, Lots
19.01/20.01 (previously designated as Block 15A, Lots 19A/20A), and the
Rabbitts' property is designated as Block 15.01, Lot 16 (previously designated
as Block 15A, Lot 16).
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restriction because defendants planned to construct part of the home within the

twenty-five-foot setback.

      Plaintiffs asserted construction of a home within the setback established

by the 1967 deed restriction would block the ocean views from their homes.

They further claimed the original owners of the three properties included setback

restrictions in the deeds conveying title to the three lots to ensure that the home

on the lot closest to the beach, now owned by defendants, was built farthest from

the street; the home on the second lot from the beach, now owned by Sweeney,

was built second farthest from the street; and the home on the third lot, now

owned by the Rabbitts, was built closest to the street. Plaintiffs contended the

deed restrictions for the three lots established staggered setbacks that ensured

the homes on Sweeney's and the Rabbitts' properties enjoyed ocean views

unobstructed by the homes closer to the beach.

      Plaintiffs filed a complaint and order to show cause seeking a declaratory

judgment that the 1967 deed restriction on defendants' property required a

twenty-five-foot setback "from the right of way line of 15th Street." Plaintiffs

also sought a preliminary and final injunction prohibiting defendants from

constructing their home within the designated setback.          Plaintiffs further

asserted a claim for monetary damages.


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      Defendants interpret the deed restriction differently. They filed an answer

to the complaint and a counterclaim seeking a declaratory judgment that their

planned new home complied with the 1967 deed restriction. They asserted the

setback should be measured from the curb line of 15th Street, and they claimed

their planned home complied with the deed restriction because it was set back

twenty-seven and one-half feet "from the south curb line of 15th Street."

      Defendants also claimed plaintiffs' homes violated the setback deed

restrictions applicable to their properties, and that the Rabbitts waived their right

to enforce the 1967 deed restriction because Sweeney's home violated a setback

restriction in a 1968 deed to his property, and the Rabbitts failed to enforce that

deed restriction against Sweeney.

      With plaintiffs' application for a preliminary injunction pending,

defendants commenced the construction of their new home. The court then

heard argument on plaintiffs' request for a preliminary injunction barring

defendants from constructing any part of their new home within twenty-five feet

of the right-of-way-line of 15th Street.        The court granted the requested

preliminary injunction, finding plaintiffs satisfied their burden of establishing

an entitlement to the relief under the Crowe v. De Gioia, 90 N.J. 126, 132-35

(1982), standard. The court preliminarily enjoined defendants from building on


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any part of their property "that is set back less than [twenty-five] feet from the

right of way line of 15th Street."

      At the start of the subsequent bench trial on the parties' claims, defendants

moved "to bar [the] introduction of extrinsic evidence at the trial." Defendants

argued that because they were not a party to the 1967 deed, the court's

interpretation of the deed restriction must be based solely on the deed's plain

language and the court could not properly consider extrinsic evidence to

determine the intent of the grantor in the 1967 deed. Defendants also claimed

the deed restriction is ambiguous as to the place from which the setback should

be measured, and the court could not consider extrinsic evidence to resolve the

ambiguity. Defendants further argued an ambiguous deed restriction could not

be enforced against them.

      The court rejected defendants' arguments and denied their motion to bar

extrinsic evidence at trial. The court reasoned that it could consider extrinsic

evidence as an aid in defining the meaning of the deed restriction's plain

language. The court determined it could not consider extrinsic evidence to add

to, or change, the terms of the deed restriction as expressed in its plain language.

      Following the bench trial, the court issued a detailed and comprehensive

opinion summarizing the testimony of the parties and their respective experts.


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The court found the term "from 15th Street" is the "operative" portion of the

deed restriction and that it defines the point from which the setback is measured.

The court also found the 1967 deed restriction is not ambiguous and the "plain

and obvious" meaning of "from 15th Street" is that the twenty-five-foot setback

is measured from the "right of way line" of 15th Street. The court in part relied

on plaintiffs' and defendants' experts, who agreed that "15th Street" itself was

unambiguous and meant 15th Street as defined by its right-of-way lines.

      The court rejected defendants' claim the term "streetside" in the deed

restriction means the setback is measured from the curb or the "edge of [the]

pavement" or otherwise creates an ambiguity concerning the meaning of "from

15th Street." The court found "streetside" was directional, meaning "'alongside'

or 'near the street,'" and that the term did not define the point from which the

setback was measured. The court noted defendants had changed their position

concerning the meaning of the term at trial, and the court found, based on the

unambiguous language of the deed restriction alone, the twenty-five-foot

setback should be measured from the right-of-way line of 15th Street.

      The court separately considered and analyzed extrinsic evidence

concerning the prior transfers of title to the three properties from the original

grantees, setback deed restrictions applicable to each of the properties , and the


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language used in the prior deeds for the properties. The court concluded the

extrinsic evidence provided separate and independent support for its

determination the 1967 deed restriction required a twenty-five-foot setback from

East 15th Street's right-of-way line fronting defendants' beachfront property.

      The court entered a final judgment, which it later amended, granting

plaintiffs a declaratory judgment enforcing the 1967 deed restriction and

enjoining defendants and their successors in title from "constructing any

building or part of any building on [their] property . . . that is less than twenty-

five . . . feet from the nearest right of way line of [East] 15th Street." The court

transferred plaintiffs' damages claim to the Law Division, and, based on

defendants' request, dismissed the counterclaims with prejudice. Defendants

appeal from the amended final judgment and from the court's denial of their

motion to bar the introduction of extrinsic evidence at trial.

                                         II.

      Prior to addressing defendants' arguments, we review the legal principles

applicable to our consideration of the issues presented. "Restrictions on the use

to which land may be put are not favored in law because they impair

alienability." Bruno v. Hanna, 63 N.J. Super. 282, 285 (App. Div. 1960). As a

result, "courts will not aid one person to restrict another in the use of his [or her]


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land unless the right to restrict is made manifest and clear in the restrictive

covenant." Berger v. State, 71 N.J. 206, 215 (1976) (quoting Bruno, 63 N.J.

Super. at 285).

      Deed restrictions "are to be construed realistically in the light of the

circumstances under which they were created," but "incursions on the use of

property will not be enforced unless their meaning is clear and free from doubt."

Caullett v. Stanley Stilwell & Sons, Inc., 67 N.J. Super. 111, 114-15 (App. Div.

1961). However, the "primary objective" in construing a restrictive covenant in

a deed "is . . . determin[ing] the intent of the parties to the agreement," Bubis v.

Kassin, 184 N.J. 612, 624 (2005) (quoting Lakes at Mercer Island Homeowners

Ass'n v. Witrak, 810 P.2d 27, 28-29 (Wash Ct. App. 1991)), and "strict

construction [of a deed restriction] will not be applied to defeat the obvious

purpose of [the] restriction," Bruno, 63 N.J. Super. at 287.

      The interpretation and construction of a deed is a matter of law that we

review de novo. Cooper River Plaza E., LLC v. Briad Grp., 359 N.J. Super. 518,

528 (App. Div. 2003). We analyze a deed restriction "in accordance with the

principles of contract interpretation, which include a determination of the

intention of the parties as revealed by the language used by them." Id. at 527;

see also Homann v. Torchinsky, 296 N.J. Super. 326, 334 (App. Div. 1997)


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(explaining "[a] restrictive covenant [in a deed] is a contract" (first alteration in

original) (quoting Weinstein v. Swartz, 3 N.J. 80, 86 (1949))). Where, as here,

we are required to interpret a deed restriction intended to bind purchasers of

property who are strangers to the transaction in which the restriction was

imposed, "the intent of the restriction must manifest itself in the language of the

document itself. If ambiguity remains, it cannot be resolved, as would be the

case if the initial signatories disputed an ambiguous term, by resort to extrinsic

evidence . . . ." Cooper River Plaza, 359 N.J. Super. at 527 (footnote omitted);

see also Freedman v. Sufrin, 443 N.J. Super. 128, 131-32 (App. Div. 2015).

      "An intention disguised by an ambiguity cannot bind a subsequent

purchaser who, as the result of an absence of clarity in the instrument of

conveyance, lacks notice of restrictions that the initial parties have attempted to

place on the property . . . conveyed." Cooper River Plaza, 359 N.J. Super. at

527: see also Sullivan v. Port Auth. of N.Y. & N.J., 449 N.J. Super. 276, 283

(App. Div. 2017) ("We review issues of law de novo and accord no deference to

the trial court's legal conclusions.").      That principle is consistent with our

contract law, "which require[s] sufficient definiteness of terms so that the

performance required of each party can be ascertained with reasonable certainty,

as well as knowledge of and acquiescence in the stated terms." Ibid. The


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principle also honors "the central public policy underlying New Jersey's

Recording Act: that 'a buyer . . . of real property should be able to discover and

evaluate all of the . . . restrictions on the property' from a review of the public

record." Id. at 527-28 (alterations in original) (quoting Aldrich v. Schwartz, 258

N.J. Super. 300, 307 (App. Div. 1992)).

      Ambiguity arises "if the terms of the contract are susceptible to at least

two reasonable alternative interpretations." Id. at 528 (quoting Assisted Living

Assocs. of Moorestown, L.L.C. v. Moorestown Twp., 31 F. Supp. 2d 389, 398

(D.N.J. 1998)). It is for the court to decide as a matter of law whether the terms

of a contract are "clear or ambiguous." Schor v. FMS Fin. Corp., 357 N.J. Super.

185, 191 (App. Div. 2002) (citing Nester v. O'Donnell, 301 N.J. Super. 198, 210

(App. Div. 1997)).

      Guided by these principles, we discern no basis to reverse the court's

determination that the plain and unambiguous language of the restrictive

covenant requires a twenty-five-foot setback measured from the right-of-way

line of East 15th Street. Defendants do not dispute the deed restriction requires

a twenty-five-foot setback. Nor could they. The plain language of the restriction

– "a 25[-]foot streetside setback from 15th Street" – requires it. Thus, the

grantors in 1967 intended a twenty-five-foot setback on the property, and we


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will not apply a strict construction of the deed restriction that defeats their

clearly stated purpose. Bruno, 63 N.J. Super. at 287.

      Defendants do not dispute a setback is a designated area on a property

within which no building may be constructed, and which is measured from a

particular point or place. See, e.g., Roehrs v. Lees, 178 N.J. Super. 399, 401

(App. Div. 1981) (determining the enforceability of a deed restriction requiring

a twenty-five-foot setback from a property line); Graves v. Bloomfield Plan.

Bd., 97 N.J. Super. 306, 312 (Law Div. 1967) (measuring the setback point

"from the street line"); Tambone v. Bd. of Appeal of Stoneham, 203 N.E.2d 802,

804 (Mass. 1965) ("[I]n general, setback requirements . . . refer to distances

from street lines, lot lines, or existing structures, rather than from zoning

boundaries."); see also Black's Law Dictionary 1648 (11th ed. 2019) (defining a

setback as "[t]he minimum amount of space required between a lot line and a

building line"). Defendants argue only that the setback required by the 1967

deed restriction is ambiguous because the particular point or place from which

the setback is measured cannot be clearly determined from the restriction's plain

language.

      We agree with the court's determination that the term "from 15th Street"

is the operative language in the 1967 deed restriction because it defines the point


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or place from which the twenty-five-foot setback is measured. "[F]rom 15th

Street" are the only words in the deed restriction specifying a point or place

"from" which the setback is measured. The language provides the essential

starting point for measuring the required twenty-five-foot setback. In addition,

inclusion of the operative language, "from 15th Street," in the deed restriction

is consistent with what defendants concede is the plain meaning of a setback

restriction—an area measured from a point or place within which no building

construction is permitted on their property. As the trial court found, the deed's

plain and unambiguous language requires a twenty-five-foot setback measured

"from 15th Street."

      Defendants claim the deed restriction is ambiguous because the term "15th

Street" is not defined. They also contend the deed restriction is ambiguous

because, although the setback is clearly to be measured "from 15th Street," the

deed restriction does not identify the specific portion of 15th Street from which

the twenty-five-foot setback must be measured.

      Defendants' argument ignores the plain meaning of the language used in

the deed restriction. In their brief on appeal, defendants concede that "the legal

definition of '15th Street' . . . includes the entire 60[-]foot area between [its] two




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right-of-way lines, or property lines."4    Thus, as defendants recognize, by

definition, "15th Street" exists between its right-of-way lines which, along

defendants' property facing the street, are contiguous with defendants' property

lines. The court found, and we agree, application of this definition of "15th

Street" to the deed restriction permits only a single reasonable and logical

conclusion: the twenty-five-foot setback on defendants' property is measured

from 15th Street's right-of-way line that is contiguous to defendants' property

line.

        Defendants attempt to infuse ambiguity into the deed restriction's plain

language by arguing that since 15th Street includes a sixty-foot swath between

its right-of-way lines that includes a sidewalk, gutter, curbing, and a paved

roadway, the deed restriction's reference to "15th Street" can be logically read

to refer to any of those physical features within 15th Street's sixty-foot width.

Defendants claim the deed restriction's reference to "15th Street" ambiguously

permits the conclusion that the curb, sidewalk, gutter, or other places within the




4
   This definition of "15th Street" is further supported by the testimony of
plaintiffs' and defendants' respective experts at trial. They each testified "15th
Street" by itself is defined by its "right-of-way" lines that are contiguous with
defendants' property lines fronting 15th Street.
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street's sixty-foot-wide area may be reasonably used as the point from which the

setback should be measured.

      We will not torture the language of a restrictive covenant to create

ambiguity, as defendants' proffered interpretation of the deed would require.

See Stiefel v. Bayly, Martin & Fay of Conn., Inc., 242 N.J. Super. 643, 651

(App. Div. 1990) (explaining a court "should not torture" the reading of a

contract "to create [an] ambiguity"). We must interpret the deed restriction

reasonably and in context, and to give effect to its plain language. See, e.g.,

Schor, 357 N.J. Super. at 191 (explaining interpretation of a contract requires

consideration of "the document as a whole" and application of the plain and

ordinary meaning of its terms). Defendants' interpretation of the restriction

ignores that the setback must be twenty-five feet "from 15th Street." To give

effect to this plain language, the setback must necessarily be "from" the street's

right-of-way lines. A point within the street's right-of-way lines could not

logically provide the starting point or place from which to measure the setback

because using such a measure necessarily results in a setback that is less than

twenty-five feet "from" the street or, under certain circumstances, within the

sixty-foot width of the street itself.




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      For example, a setback measured from ten feet inside the street's right-of-

way line, perhaps from a curb or gutter line, would result in a setback that is

only fifteen feet "from 15th Street." A setback measured from the center line of

the sixty-foot-wide street would result in no setback at all because twenty-five

feet from the street's center would place a portion of the setback within the

street's right-of-way lines.      Those examples illustrate the illogic and

unreasonableness of defendants' proffered interpretation of the deed restriction's

plain and unambiguous language. The required setback can only be twenty-five

feet "from 15th Street" if the setback is measured from 15th Street's right-of-

way lines. To hold otherwise would violate the deed restriction's clear and

unambiguous requirement that there be a twenty-five-foot setback "from 15th

Street."

      Defendants also claim the term "streetside" in the deed restriction creates

an ambiguity rendering the restriction unenforceable against them.             The

argument ignores the simple sentence structure of the deed restriction. The deed

restriction defines the starting point for the measurement of the setback; it is

"from 15th Street."    The term "streetside" is not included within the deed

restriction's delineation of the setback's starting point. The restriction does not

provide that the twenty-five-foot setback is "from the streetside."        To the


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contrary, and as we have explained, the setback is measured "from 15th Street."

The deed restriction permits no other reasonable conclusion. We therefore reject

defendants' claim the term "streetside" renders the deed restriction's operative

language—"from 15th Street"—ambiguous.

      Defendants illogically argue "streetside" is a word that lacks any clear

meaning and, at the same time, contend it should be interpreted to mean that the

setback is measured from the curb or street's gutter because they are to the side

of the paved roadway or street. Again, defendants ignore that "streetside" is not

included within the deed restriction's operative language—"from 15th Street"—

defining the place from which the setback is measured.

      In addition, in their effort to contort the plain language of the deed

restriction into an alleged ambiguity, defendants ignore that even if "streetside"

in part defined the location from which the setback is measured, "streetside" can

only logically be interpreted to mean to the side of 15th Street. Thus, a setback

that is to the side of 15th Street must, for the reasons we have explained,

necessarily be to the side of the right-of-way lines that define 15th Street. There

is no language in the deed restriction suggesting the setback should be measured

from some interior part the street, such as a curb or gutter, and, therefore,

defendants' argument is founded on an attempt to inject into the deed restriction


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language the grantor opted not to include and that the court is without authority

to incorporate. See, e.g., James v. Fed. Ins. Co., 5 N.J. 21, 24 (1950) (explaining

a court may not remake or alter a contract to make it different than the contract

made by the parties). The deed restriction simply, clearly, and unambiguously

refers only to 15th Street, which, by definition, exists between its right-of-way

lines.

         Giving effect to the deed restriction's plain language, a "streetside"

setback "from 15th Street" must, for the reasons we have explained, be measured

from the street's right-of-way lines. Indeed, the setback could only be alongside

the street if it exists next to the street, and, here, 15th Street is defined by its

right-of-way lines. The deed restriction's plain language does not support any

other interpretation.      Defendants' effort to convert that simple and

straightforward language into something vague or ambiguous strains credulity

and is unavailing. As noted, an ambiguity exists where the terms of the deed

restriction "are susceptible to at least two reasonable alternative interpretations."

Cooper River Plaza, 359 N.J. Super. at 528 (quoting Assisted Living Assocs.,

31 F. Supp. 2d at 398).       Defendants do not offer a reasonable alternative

interpretation of the deed restriction here.




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      In any event, the deed restriction's plain language does not permit a

reasoned conclusion "streetside" defines the place from which the setback is

measured. If that result had been intended, the term "streetside" would have

followed the word "from." We agree with the trial court that "streetside" simply

provides directional context for the setback the deed restriction otherwise

expressly and plainly provided would be measured "from 15th Street." That is,

"streetside" means nothing more or less than that on the side of defendants'

property along 15th Street, there is a twenty-five-foot setback "from 15th

Street." But cf. Cooper River Plaza, 359 N.J. Super. at 528 (finding ambiguous

a deed restriction providing for a setback from a "building line" because the

building had four sides and it was not possible to determine whether the

"building line" facing the street was the building line intended).

      There is nothing in the deed restriction supporting defendants' claim that

"streetside" means alongside the curb, next to the gutter, or near the paved street,

and, as we have explained, the deed restriction's plain language alone supports

the trial court's conclusion that the 1967 deed reserved a twenty-five-foot

setback measured from 15th Street's right-of-way line. We therefore affirm the

trial court's determination and final judgment.




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      Defendants also argue the trial court erred by denying their motion to

exclude extrinsic evidence at trial. They correctly contend extrinsic evidence is

inadmissible to resolve ambiguities in a deed restriction where, as here, the

purchasers of the property were not parties to the original deed containing the

restriction. See id. at 527-28; see also Freedman, 443 N.J. Super. at 131 ("'[T]he

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.' This standard remains unchanged." (quoting Bruno, 63 N.J. Super.

at 287)).

      In Bubis, however, the Supreme Court relied on extrinsic evidence,

including various dictionary definitions, to determine the "plain and obvious

meaning" of the word "fence" in a deed restriction limiting the use of property

of a purchaser who was not party to the deed containing the restriction. 184 N.J.

at 617, 620-24. The Court noted the requisite strict construction of a deed

restriction "has its limitations" and must yield to an interpretation that does not

"defeat[] the plain and obvious meaning of the restriction." Id. at 624 (quoting

Lakes, 810 P.2d at 29. The Court relied on extrinsic evidence to "interpret [the

word 'fence'] consistent with the general understanding of the word." Ibid. As

explained in Cooper River Plaza, where there is a clear, plain meaning to a term,


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it is sufficient to bind subsequent purchasers because the term provides adequate

notice of the restriction. 359 N.J. Super. at 527.

      Here, we find no error in the trial court's admission of the extrinsic

evidence—the testimony of the parties' respective experts—establishing the

plain and ordinary meaning of the term "15th Street." The testimony was not

admitted to resolve an ambiguity in the deed restriction.       It was properly

admitted to establish the plain and ordinary meaning of "15th Street." See

generally Bubis, 184 N.J. at 624.

      The trial court determined the deed restriction was not ambiguous and, for

that reason alone, concluded defendants are required to maintain a twenty-five-

foot setback from 15th Street's right-of-way line.        The court separately

considered extrinsic evidence—including the history of the prior transfers of the

parties' properties, the deed restrictions applicable to the properties, and the

development of 15th Street—and determined the evidence independently

supported its interpretation of the 1967 deed restriction. Defendants argue the

court erred by denying its motion to bar the extrinsic evidence and by relying

on it to support its decision.

      It is unnecessary that we address defendants' argument because, for the

reasons we have explained, the court correctly determined the deed restriction's


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plain language requires enforcement of the twenty-five-foot setback from 15th

Street's right-of-way line.5 The court's reliance on the extrinsic evidence as an

alternative basis for its conclusion is therefore of no moment. On appeal, we

determine the validity of the court's order, not its reasoning. See Do-Wop Corp.

v. City of Rahway, 168 N.J. 191, 199 (2001) (explaining "appeals are taken from

orders and judgments and not from . . . reasons given for the ultimate

conclusion"). Here, we affirm the court's final judgment based on the deed

restriction's plan language alone.

      Affirmed.




5
    For the same reason, we do not address plaintiffs' claim defendants are
judicially estopped from arguing extrinsic evidence should have been barred at
trial because defendants relied on the extrinsic evidence during the pretrial
proceedings, including the proceedings that resulted in the court's entry of a
preliminary injunction against defendants' construction within the twenty-five-
foot setback.
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