# Deedra Brewer v. William Henderson, III

> New Jersey Superior Court Appellate Division · July 1, 2025

URL: https://www.frixlaw.com/law-library/cases/11087505

## Case

- **Court:** New Jersey Superior Court Appellate Division
- **Decided:** July 1, 2025
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION WITHOUT THE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-2390-23

DEEDRA BREWER,

Plaintiff-Appellant,

v.

WILLIAM HENDERSON, III,
TOWNSHIP OF COMMERCIAL,
a municipality, WARREN
VIZZARD, individually and in
his official capacity, CLINT
MILLER, individually and in
his official capacity, FLETCHER
JAMISON, in his official capacity,
and JOSEPH KLAUDI, in his
official capacity,

Defendants-Respondents.
_____________________________

Submitted May 21, 2025 – Decided July 1, 2025

Before Judges Mayer and DeAlmeida.

On appeal from the Superior Court of New Jersey,
Chancery Division, Cumberland County, C-000023-22.

Deedra Brewer, appellant pro se.
Testa Heck Testa & White, PA, attorneys for
respondent William Henderson, III (Justin R. White, on
the brief).

Seeley Law Office, LLC, attorneys for respondents
Township of Commercial, Warren Vizzard, Clint
Miller, Fletcher Jamison, and Joseph Klaudi (Thomas
E. Seeley and Randi S. Greenberg, of counsel and on
the brief).

PER CURIAM

Plaintiff Deedra Brewer appeals from three Chancery Division orders in

this property line dispute: (1) the January 20, 2023 order requiring plaintiff to

remove a shed encroaching on defendant William Henderson, III's property; (2)

the January 25, 2024 order denying plaintiff's motion for summary judgment

and granting the cross-motions for summary judgment of Henderson and

defendants Township of Commercial, Warren Vizzard, Clint Miller, Fletcher

Jamison, and Joseph Klaudi; and (3) the March 1, 2024 order directing plaintiff

to pay $11,412.50 to Henderson's counsel as a sanction for pursuing frivolous

claims.1 We affirm.

1
Plaintiff's case information statement states she appeals the October 5, 2022
order denying plaintiff's motion for preliminary injunctive relief. Because
plaintiff made no substantive arguments with respect to the October 5, 2022
order in her brief we consider her appeal from that order waived. "[A]n issue
not briefed is deemed waived." Pressler and Verniero, Current N.J. Court Rules,
cmt. 5 on R. 2:6-2 (2025); see also Telebright Corp., Inc. v. Dir., Div. of Tax.,

A-2390-23
2
I.

Henderson owned residential real property on Main Street in the Port

Norris section of Commercial Township (the Property). In 2011, he offered the

Property for sale through a multiple listing service. The listing described the

Property as having 165 feet of frontage along Main Street and a depth of 122

feet.

Plaintiff, an attorney licensed to practice in another State, visited the

Property and made an offer to purchase it without meeting or speaking to

Henderson. On September 2, 2011, plaintiff signed a contract to purchase the

Property. The contract listed the Property's dimensions as 165 feet by 122 feet

and stated it was being sold "as is," "as seen," and subject to any easements and

restrictions of record an accurate survey might disclose. Henderson thereafter

executed the contract.

Prior to the closing, plaintiff retained a surveyor to prepare a survey of the

Property. The survey, which was completed on December 30, 2011, indicates

the Property has 165 feet of frontage on Main Street and abuts along its eastern

property line a thirty-three-foot-wide right of way designated as Jeffries Road.

424 N.J. Super. 384, 393 (App. Div. 2012) (deeming a contention waived when
the party failed to include any arguments supporting the contention in its brief).
A-2390-23
3
The survey shows a wood rail fence and two maple trees in the right of way and

outside the eastern boundary of the Property. Plaintiff received the survey at or

around the time of the January 17, 2012 closing. Although plaintiff appreciated

the importance of the survey, she elected not to read it before closing on the

Property. The deed memorializing the sale refers to an older survey of the

Property, which states that it is 165 feet by 121.75 feet.

At the time plaintiff purchased the Property, Jeffries Road was an

unimproved paper road owned by the township. Henderson owned a parcel to

the east of Jeffries Road across the right of way from the Property and a parcel

to the north of the Property that also abutted the right of way. Prior to the sale,

Henderson placed recycled asphalt on part of the Jeffries Road right of way in

the area of the Property to facilitate access to his parcels to the east and north of

the Property. The recycled asphalt was to the east of the wooden fence and

maple trees in the right of way. Plaintiff also used the asphalt portion of Jeffries

Road to reach a driveway on the northern end of the Property.

A photograph in the record demonstrates that a visual inspection alone,

absent a survey, might lead a person to reasonably infer the wooden fence and

trees were aligned along the eastern boundary of the Property and the asphalt

strip was Jeffries Road. However, the survey in plaintiff's possession when she

A-2390-23
4
purchased the Property clearly indicated the fence and trees were in the middle

of the Jefferies Road right of way outside the eastern boundary of the Property

and the right of way was wider than the existing asphalt strip installed by

Henderson.

In August 2022, Henderson removed the wooden fence from the Jeffries

Road right of way and trimmed the maple trees. In response, on August 23,

2022, plaintiff, believing the fence and trees were on the Property, filed an order

to show cause and verified complaint in the Chancery Division naming

Henderson as a defendant. She alleged Henderson, either personally or at his

direction, damaged the Property by removing two large boulders, cutting two

large limbs from the maple trees, removing the wooden fence, and digging. She

also alleged Henderson stated he would move a shed on the Property he alleged

was encroaching on his parcel to the north. The court entered an order to show

cause restraining Henderson from "[d]estroying [the] trees, fence, [and] garden

[at the Property and] the lawn[,] and any property west of Jeffries Road" near

the Property.

On September 6, 2022, plaintiff filed an amended complaint. She alleged:

(1) she was entitled to an order removing a cloud on title to the Property because

the deed filed after her purchase of the Property erroneously stated its frontage

A-2390-23
5
is 165 feet along Main Street, "when previous deeds, the location of Jeffries

Road and other landmarks show the actual distance is 181.5 feet, being 165 feet

plus 16.5 feet, one rod[;]" (2) Henderson engaged in a constructive fraud by

"fail[ing] to disclose the fact that he did not intend to sell the fence, garden, and

trees at the side of the [P]roperty with the rest of the [P]property" when he

entered into the contract with plaintiff; and (3) Henderson trespassed on the

Property and caused damage thereto. She requested the court enter an order

reforming the deed to place the eastern boundary of the Property at the location

of the wooden fence in the Jeffries Road right of way, quieting title to the

Property, and awarding her damages.

On September 12, 2022, plaintiff filed a second amended complaint. She

abandoned her claim of constructive fraud and asserted claims of common law

fraud and consumer fraud against Henderson based on the same allegations.

On October 5, 2022, the court entered an order denying plaintiff's request

for preliminary injunctive relief. In an oral decision, the court found plaintiff

had not established she would suffer irreparable harm in the absence of an

injunction. The court reasoned in the event plaintiff prevailed on her substantive

claims, monetary damages could adequately compensate her for the removal of

the fence and damage to the maple trees and lawn. The court also found the

A-2390-23
6
material facts supporting plaintiff's claim were in dispute, she had not

established Henderson deprived her of a settled legal right, or demonstrated the

balance of equities favored entry of preliminary injunctive relief.

On January 9, 2023, plaintiff filed a third amended complaint. She added

a claim of intentional infliction of emotional distress against Henderson . She

alleged Henderson destroyed the wooden fence while she was at church with the

intention of causing her emotional harm.

Henderson thereafter moved for an order directing plaintiff to remove the

shed he alleged was encroaching on his parcel north of the Property. He certified

he was developing his parcel with a residence and discovered plaintiff's shed

was encroaching on his lot. He certified plaintiff failed to respond to a request

to move the shed. Plaintiff opposed the motion.

On January 20, 2023, the court entered an order directing plaintiff to

remove the shed from Henderson's property. In a written decision, the court

found Henderson produced evidence clearly establishing the shed was

encroaching on his parcel and plaintiff produced no convincing evidence to the

contrary. The court found Henderson had a settled legal right to remove

plaintiff's shed. In addition, the court concluded the encroaching shed was

preventing Henderson from developing his property and monetary damages

A-2390-23
7
would be insufficient to address that harm. Finally, the court found the balance

of equities favored entry of injunctive relief.

In early March 2023, the township removed the maple trees, relocated a

utility pole in the right of way near the eastern border of the Property, and paved

the entire width and length of the Jeffries Road right of way where it abuts the

Property. The paved road permits access to Henderson's parcel north of the

Property.

On March 8, 2023, plaintiff filed a fourth amended complaint. She added

as defendants: (1) the township; (2) Vizzard, Mayor of Commercial Township;

(3) Miller, Public Works Supervisor of Commercial Township; and (4) Jamison

and Klaudi, two members of the township's governing body. Plaintiff alleged:

(1) she had a claim of adverse possession to the portion of the Jeffries Road right

of way west of the wooden fence; (2) defendants violated the Fifth and

Fourteenth Amendments of the United States Constitution, Articles 1, 20, and

21 of the New Jersey Constitution, 42 U.S.C.A. § 1983, and 42 U.S.C.A. § 1985

by taking possession of a twenty-foot section of land along the eastern boundary

of the Property in the Jeffries Road right of way; (3) the township, Vizzard,

Jamison, Klaudi, and Miller acted under color of law and in conspiracy with

Henderson to deprive plaintiff of due process and equal protection; (4) the

A-2390-23
8
township, Vizzard, Jamison, and Klaudi, are not entitled to Eleventh

Amendment or qualified immunity; (5) Miller recklessly removed the utility

pole; (6) Klaudi and Jamison acted in concert with Vizzard to take plaintiff's

property at a meeting of the township governing body; (7) plaintiff obtained title

to a portion of the Jeffries Road right of way through adverse possession; and

(8) Henderson caused plaintiff to be charged with criminal trespass for standing

in the Jeffries Road right of way. Plaintiff sought restoration of her claimed

ownership of the portion of the Jeffries Road right of way between the wooded

fence and the eastern boundary of the Property, as well as compensatory and

punitive damages.

After discovery, the parties cross-moved for summary judgment. In

support of its motion, the township submitted a report by an engineer detailing

the boundaries of the Jeffries Road right of way and any existing features within

the right of way. The report was based on a review of the chain of title since

1987, tax maps, and five surveys, including the survey plaintiff obtained when

she purchased the Property. The engineer reported the Jeffries Road right of

way was clearly defined by iron pipes at the Property and surrounding parcels

and is thirty-three feet wide. He opined the existing asphalt was installed by

A-2390-23
9
Henderson and did not occupy the entire right of way, although "[i]ndividuals

might have thought that . . . drive was in fact Jeffries Road."

An expert retained by plaintiff, but not named by her as an expert witness,

also surveyed the Property. He agreed the boundaries of the Property were

properly marked and the size and location of the Jeffries Road right of way was

as described by the township's expert. He agreed the wooden fence and maple

trees were on township property in the Jeffries Road right of way at the time

plaintiff purchased the Property. He testified he advised plaintiff to "drop" her

complaint, as there was no basis to proceed with her claim that she owned any

portion of the Jeffries Road right of way.

On January 25, 2024, the court entered an order denying plaintiff's motion

for summary judgment, granting defendants' cross-motions for summary

judgment, and dismissing the fourth amended complaint. In a thorough and

well-reasoned written decision, the court found each of plaintiff's claims to be

meritless. The court summarized the strength of the evidence with respect to

the location of the Jeffries Road right of way:

As one of the [p]rofessional [l]and [s]urveyors has
testified, "this is Surveying 101." Six surveys have
been performed of the subject property. All six surveys
agree with each other. All six agree as to the legal
description. All six agree with where Jeffries Road is
located. The only person who disagrees with the

A-2390-23
10
description is the [p]laintiff. Her thought that she
owned the property in question is simply insufficient to
deny summary judgment. Her bald assertion is contrary
to every single expert opinion that has been provided.

This conclusion formed the basis for the court denying plaintiff's claims,

each of which is predicated on the argument she owned the portion of the Jeffries

Road right of way west of the wooden fence and maple trees.

With respect to plaintiff's request for an order quieting title to the

Property, the court concluded, "[t]here is no[] title that needs a quiet title action.

The evidence before the [c]ourt is so one-sided that summary judgment must be

granted . . . ."2

With respect to plaintiff's common law fraud claim against Henderson, the

court found:

There is not a scintilla of evidence before the [c]ourt
that [d]efendant Henderson told her that the property
which is Jeffries Road was being conveyed to her or
that he had an ownership interest in the same. The
contract of sale was clear. . . . Defendant Henderson
never met with the [p]laintiff and had no conversations
with her until after the contract was signed. The
contract allowed [p]laintiff to obtain a survey. She did.
The survey is accurate and depicts accurately the
property lines and clearly shows that the fence and trees

2
Although the written decision states summary judgment must be granted on
this claim to "[p]laintiffs," it is clear the court intended to conclude summary
judgment must be granted to defendants.
A-2390-23
11
in question were outside of her property line and part of
Jeffries Road.

The court also found Henderson, as an individual who is not in the

business of selling real estate, was not subject to the New Jersey Consumer

Fraud Act (CFA), N.J.S.A. 56:8-1 to -210. In addition, the court found that if

Henderson was subject to the CFA, he was entitled to summary judgment

because the record contained no evidence he told plaintiff the Property included

any portion of the Jeffries Road right of way or concealed the fact the fence and

maple trees and the land between them and the eastern boundary of the Property

were within the right of way and outside the boundaries of the Property.

With respect to plaintiff's claim of intentional infliction of emotional

distress against Henderson, the court found

the facts fall far short of that which would be required.
Defendant's actions of removing a fence located on
Township [p]roperty, cutting several limbs off a tree
which belonged to the Township, removing boulders on
Township [p]roperty and asking [p]laintiff to move her
shed off his property is simply not behavior that can be
considered so outrageous in character and so extreme
in degree as to go beyond all possible bounds of
decency and to be regarded as atrocious and utterly
intolerable in a civilized community.

....

It is simply disingenuous to allege that [d]efendant
Henderson's conduct was sufficiently severe to cause

A-2390-23
12
genuine and substantial emotion distress or mental
harm to the average person.

The court concluded plaintiff's trespass claim was meritless because it was

predicated on the false contention she owned the portion of the Jeffries Road

right of way west of the wooden fence and maple trees.

Finally, the court concluded plaintiff's tort claims against the township

and its employees and officials were barred by the Tort Claims Act (TCA),

N.J.S.A. 59:8-1 to 8-11, because plaintiff did not file a notice of tort claim.

However, the court also concluded those claims were substantively deficient

because they predicated on the incorrect claim plaintiff owned a portion of the

Jeffries Road right of way. Plaintiff's adverse possession claim failed, the court

concluded, because her alleged use of the land west of the wooden fence was

not open, notorious, and hostile and her eleven-year ownership of the Property

was short of the statutory period necessary to establish adverse possession.

Henderson thereafter moved for an award of sanctions pursuant to Rule

1:4-8 and N.J.S.A. 2A:15-59.1, the Frivolous Litigation Act. 3 He sought

$26,985 in attorney's fees and $1,166.41 in costs. Plaintiff opposed the motion.

3
On October 17, 2022, Henderson sent a frivolous litigation notice to plaintiff
as required by Rule 1:4-8(b).
A-2390-23
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On March 1, 2024, the court entered an order granting Henderson's motion

in part. In an oral decision, the court found once plaintiff was advised by the

expert she hired she had no viable claims against Henderson, her continued

pursuit of her claims became frivolous. The court concluded the record did not

establish the date on which the expert informed plaintiff her claims against

Henderson were meritless. However, at his July 24, 2023 deposition, the expert

recounted having provided his opinion to plaintiff. The court found as of the

date of the expert's deposition, plaintiff was on notice her claims against

Henderson had no basis in law or fact. The court concluded plaintiff's pursuit

of her claims against Henderson after that date was frivolous and awarded

attorney's fees incurred by Henderson for services from July 24, 2023, forward.

The court found the hourly rate charged by Henderson's attorney was

reasonable based on his training and experience and the attorney's time records

did not contain duplicate entries. The court determined the fees charged by

Henderson's counsel after July 24, 2023, totaled $11,412.50. The court declined

to award costs. The March 1, 2024 order directed plaintiff to pay $11,412.50 to

Henderson's counsel within ninety days.

This appeal followed. Plaintiff argues the trial court erred when it: (1)

entered the January 20, 2023 preliminary injunction directing her to move her

A-2390-23
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shed; (2) denied her motion for summary judgment and granted defendants'

cross-motions for summary judgment because either the record establishes her

ownership of the land in the Jeffries Road right of way west of the wooden fence

or disputed issues of material fact relating to her claim to own that property

should be resolved by a jury; and (3) concluded she pursued frivolous claims

against Henderson and awarded sanctions.

II.

A. January 20, 2023 Preliminary Injunction.

The standards for granting preliminary injunctive relief are well

established: (1) whether a party would suffer irreparable harm if relief is not

granted; (2) whether the claim rests on settled law and has a reasonable

probability of success on the merits; and (3) whether the balance of hardships to

the parties demonstrates that greater harm would result from not issuing the stay

than if it were issued. Garden State Equality v. Dow, 216 N.J. 314, 320 (2013)

(citing Crowe v. De Gioia, 90 N.J. 126 (1982)).

Our review of the record revealed no basis on which to disturb the motion

court's entry of the January 20, 2023 preliminary injunction. Henderson

supported his motion with a survey indicating plaintiff's shed was encroaching

on the parcel he owned to the north of the Property. Plaintiff, on the other hand,

A-2390-23
15
did not submit competent evidence the shed was situated entirely on the

Property. Henderson, therefore, established a likelihood of success on the merits

of his encroachment claim. In addition, Henderson sought the preliminary

injunction because he intended to develop his parcel with a residence, which

required removal of the encroaching shed. We agree with the motion court's

conclusion the shed's interference with development of Henderson's parcel

constituted irreparable harm that could not be compensated with damages at the

conclusion of the litigation. Finally, Henderson sought only to compel plaintiff

to move the shed a few feet to remove it from his parcel and comply with setback

requirements, a relatively minor burden. The record also supports the court's

conclusion the balance of equities favored entry of the preliminary injunction.

B. January 25, 2024 Summary Judgment Order.

We review a grant of summary judgment de novo, applying the same

standard as the motion court. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). That

standard requires us to "determine whether '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.'" Branch

v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (quoting R. 4:46-2(c)).

A-2390-23
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"Summary judgment should be granted . . . 'against a party who fails to make a

showing sufficient to establish the existence of an element essential to that

party's case, and on which that party will bear the burden of proof at trial.'"

Friedman v. Martinez, 242 N.J. 449, 472 (2020) (quoting Celotex Corp. v.

Catrett, 477 U.S. 317, 322 (1986)). We do not defer to the motion court's legal

analysis or statutory interpretation. RSI Bank v. Providence Mut. Fire Ins. Co.,

234 N.J. 459, 472 (2018); Perez v. Zagami, LLC, 218 N.J. 202, 209 (2014).

Self-serving assertions that are unsupported by evidence are insufficient

to create a genuine issue of material fact. Miller v. Bank of Am. Home Loan

Servicing, L.P., 439 N.J. Super. 540, 551 (App. Div. 2015). "Competent

opposition requires 'competent evidential material' beyond mere 'speculation'

and 'fanciful arguments.'" Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super.

415, 426 (App. Div. 2009) (quoting Merchs. Express Money Order Co. v. Sun

Nat'l Bank, 374 N.J. Super. 556, 563 (App. Div. 2005)). We review the record

"based on our consideration of the evidence in the light most favorable to the

parties opposing summary judgment." Brill v. Guardian Life Ins. Co., 142 N.J.

520, 523-24 (1995).

We reviewed the record and find no basis on which to reverse the denial

of plaintiff's summary judgment motion and grant of summary judgment in favor

A-2390-23
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of defendants. The record contains numerous surveys, including the survey

plaintiff obtained prior to purchasing the Property, that unequivocally

established the Property has 165 feet of frontage on Main Street and a thirty-

three-foot-wide right of way for Jeffries Road immediately adjacent to its

eastern boundary. The survey in plaintiff's possession prior to the closing

depicted the wooden fence and maple trees located outside the eastern boundary

of the Property and in the right of way. While plaintiff, based only on her visual

inspection of the Property, may have thought the wooden fence and trees marked

the eastern boundary of the Property and the asphalt strip installed by Henderson

occupied the entire width of Jeffries Road, the survey she commissioned before

she purchased the Property contradicted her visual impression. Plaintiff, an

attorney, recognized the significance of the survey but elected not to review it

before purchasing the Property. She cannot claim to have been defrauded with

respect to the Property's boundaries or to have obtained title to township

property based on inferences she drew through her visit to the Property.

As the motion court noted, plaintiff produced no survey indicating the

Property included any portion of the right of way or extended beyond 165 feet

of frontage on Main Street. To the contrary, the expert plaintiff retained during

discovery determined plaintiff had no basis on which to claim ownership of any

A-2390-23
18
portion of the Jeffries Road right of way and advised plaintiff to dismiss her

claims against Henderson.

Nor did plaintiff produce any evidence suggesting Henderson told her she

was purchasing from him any portion of the right of way or any land beyond the

165 feet of frontage on Main Street. There was, therefore, no basis for plaintiff's

fraud, consumer fraud, intentional infliction of emotional distress, or trespass

claims against Henderson. Those claims were based on plaintiff's belief, which

was unsupported by evidence in the record, she owned a portion of the Jeffries

Road right of way or was told she was purchasing that property.

We also agree with the motion court's conclusion plaintiff did not

establish her claims against the township or its employee or official defendants.

With respect to plaintiff's tort claims, she did not file a notice of tort claim

pursuant to the TCA. Failure to do so is fatal to those claims. N.J.S.A. 59:8-8.4

We also agree with the motion court's conclusion that even if plaintiff

filed a notice of claim, her tort claims were substantively deficient. As with

plaintiff's claims against Henderson, the predicate for each of her claims against

the township defendants is that she owned the portion of the Jeffries Road right

4
We find no basis in the record for plaintiff's claim she substantially complied
with the notice provisions of the TCA. See Guerrero v. City of Newark, 216
N.J. Super. 66, 70-74 (App. Div. 1987).
A-2390-23
19
of way west of the wooden fence. However, the record contained no evidence

supporting plaintiff's belief she held title to that property, which is owned by the

township.

Plaintiff's constitutional claims against the township defendants are not

barred by her failure to file a notice of tort claim. See Owens v. Feigin, 194 N.J.

607, 609 (2008) (TCA's notice-of-claim provisions do not apply to claims

asserted under the New Jersey Civil Rights Act, N.J.S.A. 10:6-1 to -2);

Schneider v. Simonini, 163 N.J. 336, 372 (2000) (TCA's notice-of-claim

provisions are inapplicable to civil rights actions under 42 U.S.C. § 1983).

However, like her tort claims, plaintiff's constitutional claims were based on the

proposition, unsupported by record evidence, she owned a portion of the Jeffries

Road right of way.

Finally, we find no basis on which to reverse the motion court's conclusion

plaintiff could not establish a claim to any portion of the right of way through

adverse possession. Plaintiff, who purchased the Property in 2012, could not

establish the twenty- or thirty-year statutory periods of adverse possession. See

N.J.S.A. 2A:14-30; N.J.S.A. 2A:14-7; N.J.S.A. 2A:14-31. Nor does the record

support plaintiff's claim prior owners of the Property maintained open,

notorious, and hostile possession of the western portion of the right of way that

A-2390-23
20
could be tacked on to plaintiff's years of possession. See Stump v. Whibco, 314

N.J. Super. 560, 567-70 (App. Div. 1998). Moreover, the motion court correctly

concluded plaintiff could not meet the heavy burden of proving adverse

possession of land designated for use as a public right of way. See Devins v.

Borough of Bogota, 124 N.J. 570, 574 (1991). Plaintiff did not pay taxes on the

right of way or act in a way that put the township on notice she was engaged in

the open, notorious, and hostile use of any portion of the right of way . Simply

tending trees, planting flowers, and mowing the lawn was insufficient to

constitute adverse possession of land owned by the municipality and dedicated

to public use. See, e.g., George Van Tassel's Community Funeral Home, Inc. v.

Town of Bloomfield, 8 N.J. Super. 524, 531-33 (Ch. Div. 1950).

C. March 1, 2024 Order Imposing Sanctions.

We review a decision on a motion for frivolous lawsuit sanctions under

"an abuse of discretion standard." United Hearts, L.L.C. v. Zahabian, 407 N.J.

Super. 379, 390 (App. Div. 2009) (citing Masone v. Levine, 382 N.J. Super. 181,

193 (App. Div. 2005)). We will reverse such a decision only if "it 'was not

premised upon consideration of all relevant factors, was based upon

consideration of irrelevant or inappropriate factors, or amounts to a clear error

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21
in judgment.'" McDaniel v. Lee, 419 N.J. Super. 482, 498 (App. Div. 2011)

(quoting Masone, 382 N.J. Super. at 193).

Rule 1:4-8 and N.J.S.A. 2A:15-59.1 authorize sanctions and reasonable

attorney's fees against parties for bringing frivolous litigation before the court.

N.J.S.A. 2A:15-59.1(a) provides that a prevailing party in "a civil action, either

as plaintiff or defendant, against any other party may be awarded all reasonable

litigation costs and reasonable attorney fees, if the judge finds at any time during

the proceedings or upon judgment that a complaint, counterclaim, cross -claim

or defense of the nonprevailing person was frivolous." To find a complaint

frivolous:

[T]he judge shall find on the basis of the pleadings,
discovery, or the evidence presented that either: (1)
The complaint . . . was commenced, used or continued
in bad faith, solely for the purpose of harassment, delay
or malicious injury; or (2) The nonprevailing party
knew, or should have known, that the complaint . . . was
without any reasonable basis in law or equity and could
not be supported by a good faith argument for an
extension, modification or reversal of existing law.

[N.J.S.A. 2A:15-59.1(b).]

"For purposes of imposing sanctions under Rule 1:4-8, an assertion is

deemed 'frivolous' when 'no rational argument can be advanced in its support,

or it is not supported by any credible evidence, or it is completely untenable.'"

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United Hearts, 407 N.J. Super. at 389 (quoting First Atl. Fed. Credit Union v.

Perez, 391 N.J. Super. 419, 432 (App. Div. 2007)). Therefore, "[w]here a party

has reasonable and good faith belief in the merit of the cause," a motion for

sanctions will be denied. Perez, 391 N.J. Super. at 432. Indeed, "[t]he nature

of conduct warranting sanction under Rule 1:4-8 has been strictly construed,"

and "'the term "frivolous" should be given a restrictive interpretation' to avoid

limiting access to the court system." Id. at 432-33 (quoting McKeown-Brand v.

Trump Castle Hotel & Casino, 132 N.J. 546, 561-62 (1993)).

The record amply supports the imposition of sanctions against plaintiff.

As the motion court found, an expert retained by plaintiff surveyed the Property

and, like every other surveyor who delineated the Property's boundaries,

determined its frontage on Main Street was 165 feet and a thirty-three-foot-wide

right of way for Jeffries Road was adjacent to its eastern boundary. The

surveyor informed plaintiff she did not have a valid claim of title to any portion

of the right of way and should withdraw her claims against Henderson. The

expert's advice, along with the absence of any evidence Henderson informed

plaintiff she was purchasing the land in the right of way west of the wooden

fence, definitively established plaintiff's claims against Henderson were

baseless. The imposition of sanctions equal to the reasonable attorney's fees

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Henderson incurred after the expert advised plaintiff to dismiss her case was

appropriate.

To the extent we have not specifically addressed any of plaintiff's

remaining contentions, we conclude they lack sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11087505. Public record. Not legal advice.