                                NOT FOR PUBLICATION WITHOUT THE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-3610-18T1

BARBARA H. ABROM,

          Plaintiff-Respondent,

v.

PHILIP PICINICH and
DONNA PICINICH,

          Defendants-Appellants.


                   Submitted March 26, 2020 – Decided July 10, 2020

                   Before Judges Alvarez and Suter.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Bergen County, Docket No. C-
                   000155-18.

                   Law Offices of Vincent J. La Paglia, attorneys for
                   appellants (Jeff Thakker, of counsel; Vincent J. La
                   Paglia, on the briefs).

                   Michael J. Sprague, attorney for respondent.

PER CURIAM
      Defendants Philip Picinich and Donna Picinich appeal the April 11, 2019

grant of summary judgment to plaintiff Barbara H. Abrom. The parties are

neighbors. For the reasons that follow, we affirm.

      The dispute concerns a 1983 recorded easement plaintiff and her late

husband conveyed to the Picinichs' predecessors in title.        The deed's key

provision states:

            Subject to an easement covering the premises described
            below, giving the grantees herein, their assigns and
            successors in interest, the exclusive right of ingress and
            egress over an existing driveway located on the
            adjoining premises, being 17 Ridge Road. This
            easement is given so the grantees and their successors
            will be able to use their rear yard for parking. This
            easement will expire by its own terms if the grantees or
            their successors alter the grade of the purchased
            premises, allowing them access to the rear yard.

At some unknown time after the conveyance, a combination concrete/wood

fence was erected around the Picinichs' yard, basically a wood fence with a

concrete foundation. The back yard is effectively unusable for parking unless

the fencing is removed. In their pleadings, the Picinichs stated they did not

intend to remove the fencing.

      The following are undisputed facts. Between 1995 and 2000, the Picinichs

parked their vehicles in the street. From 2000 to 2009, they rented a space in

the garage behind Abrom's home. They obtained a permit to construct a parking

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                                        2
space alongside their home from the municipality sometime before or in 2009.

The parking space is only accessible over Abrom's driveway, in other words,

over the easement. From 2009 to 2017, the Picinichs parked one vehicle in their

parking space, and one on the street.

      When the Picinichs' children reached driving age, they applied to the

municipality for permits to build three extra spaces alongside their home, which

would also be accessible only along the easement—Abrom's driveway. Abrom

threatened legal action upon being informed of the issuance of the permit. The

Picinichs nonetheless proceeded with construction. This litigation followed.

      In competing certifications supporting and opposing summary judgment,

the Picinichs' seller, grantee on the original conveyance, certified that the parties

did not intend to limit the easement access in order to reach parking only in the

rear yard. The seller believed the phrase "use their rear yard for parking"

referred to building a garage in the back yard. The Picinichs certified that since

it is practically impossible to access the rear yard of their house from the street

without using Abrom's driveway,1 and their rear yard is fenced, parking can only




1
  It is undisputed that there is a utility pole and large tree in the Picinichs' front
yard preventing them from building their own driveway.
                                                                              A-3610-18T1
                                          3
occur on the side, and therefore the easement was intended to allow for side yard

parking.

      Abrom certified that at the time the easement was created, no

concrete/wood fence blocked the Picinichs' rear yard. At the time of the original

sale, Abrom testified she understood parking for the Picinichs' home would be

in their rear yard, but accessible over her driveway.

      The judge concluded "the explicit language of the easement clearly states

its intent: the easement 'is given so that grantees and their successors will be

able to use their rear yard for parking.'" He interpreted the express language to

"unambiguously" provide "for access to parking in the rear yard of the property."

Because the language was so clear, he considered the certification by the

Picinichs' predecessor in title to have been irrelevant.

      The judge further found that the easement had been "voluntarily

abandoned" because of the Picinichs' "intent to never make use of said easement

going forward." The fence around the rear yard made it clear that the driveway

would never be used to access the yard. The judge viewed the construction of

the fence to express an intent to terminate the easement because its original

purpose was no longer feasible. That the Picinichs did not know who or when

that structure was created was in his opinion irrelevant. The judge denied


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                                         4
Abrom's claim for fees and costs for the Picinichs' trespass. He enjoined the

Picinichs' further use of Abrom's driveway.          The Picinichs' answer to the

complaint includes as a third affirmative defense "the doctrines of estoppel,

laches, and waiver."      The judge did not discuss the equitable affirmative

defenses because they were not raised in the moving papers on the motion for

summary judgment or during oral argument. 2

                                          I.

      We review a trial court's grant of summary judgment de novo. Davis v.

Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). We employ the same

standard as the motion judge.       Bhagat v. Bhagat, 217 N.J. 22, 38 (2014).

Summary judgment is proper when "there is no genuine issue as to any material

fact challenged and . . . the moving party is entitled to a judgment . . . as a matter

of law." R. 4:46-2(c). The trial court is required to "consider whether the

competent evidential materials presented, when viewed in the light most

favorable to the non-moving party, [were] sufficient to permit a rational




2
  The record we have been provided makes no mention of the defense except in
the answer. It is counsel's responsibility to draw our attention to materials in
the record supporting arguments on appeal. State v. Hild, 148 N.J. Super. 294,
296 (App. Div. 1977).
                                                                              A-3610-18T1
                                          5
factfinder to resolve the alleged disputed issue in favor of the non-moving

party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

                                        II.

      For easements, "[t]he primary rule of construction is that the intent of the

conveyor is normally determined by the language of the conveyance read as an

entirety and in the light of the surrounding circumstances."         Hammett v.

Rosensohn, 26 N.J. 415, 423 (1958). When the language of the easement is

unambiguous and the intent of the parties is evident, the language governs.

Hyland v. Fonda, 44 N.J. Super. 180, 187 (App. Div. 1957). However, "when

there is any ambiguity or uncertainty about an easement grant, the surrounding

circumstances, including the physical conditions and character of the servient

tenement, and the requirements of the grantee, play a significant role in the

determination of the controlling intent." Ibid.

      The language of the easement is clear and unambiguous, making the intent

of the parties evident. See Hammett, 26 N.J. at 423; Hyland, 44 N.J. Super. at

187. Rear yard does not mean side yard—it means the driveway was available

for travel so that the grantee could access parking in back of his structure. Any

effort to cast a different light on the language is simply unconvincing. For the

reasons stated by the judge, the interpretation is sound.


                                                                          A-3610-18T1
                                        6
      The judge terminated the easement as "abandoned" because of the

concrete/wood structure that for years has made parking in the rear yard a

practical impossibility. The use of the driveway in order to access side yard

parking was never contemplated by the grantors.          That language is found

nowhere in the deed.

                                       III.

      In various points, the Picinichs also contend the judge's decision did not

address defenses raised in the answer, including laches and unclean hands.

Unfortunately, other than in the answer, those issues were never argued. We see

nothing regarding those defenses in the record on appeal except in the Picinichs'

answer.

      In a somewhat different case involving a statute of limitations defense, the

New Jersey Supreme Court stated that an initial pleading did not suffice to

preserve a defense during litigation. Williams v. Bell Tel. Labs., Inc., 132 N.J.

109, 118-20 (1993).     The Court said a defendant had waived a statute of

limitations defense "by its failure to assert that defense at any stage of the

proceedings after pleading the [defense] in its [a]nswer." Id. at 118. "The mere

one time mention of the statute in [defendant's] [a]nswer . . . should not serve to

preserve that otherwise-unasserted defense through the entire three-and-one-


                                                                           A-3610-18T1
                                        7
half-year span of the litigation . . . ." Id. at 119-20. Here, the duration of the

litigation was substantially shorter than in Williams—however, the principle is

the same. Failure to raise the issues during the defense of a motion for summary

judgment results in a failure to preserve a defense.

      Furthermore, "jurisdiction of appellate courts rightly is bounded by the

proofs and objections critically explored on the record before the trial court by

the parties themselves." State v. Robinson, 200 N.J. 1, 19 (2009). We rarely

decide issues not presented to a trial judge when the opportunity was available.

See State v. Witt, 223 N.J. 409, 419 (2015). Thus, we do not consider defenses

raised for the first time on appeal.

      Affirmed.




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