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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2552-04T22552-04T2 KONSTANTINOS NATSIS and HELEN NATSIS, Plaintiffs-Appellants/ Cross-Respondents, v. TOWNSHIP OF WEEHAWKEN, EDWARD MCCLARY and GREGORY MCCLARY, d/b/a H. CROSS COMPANY, H. CROSS & COMPANY and MARIA PROOCHANSKY, Defendants-Respondents, and OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY, Defendant, and KIM PAMPERIN and TRACY PAMPERIN, Defendants-Respondents/ Cross-Appellants, and RICHARD ALLGAYER, Defendant-Respondent/

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Third-Party Plaintiff, v. H. CROSS COMPANY, a New Jersey Partnership, and GEORGE MCCLARY, Third-Party Defendants. ___________________________________

Argued October 25, 2006 - Decided January 9, 2007 Before Judges Wefing, Parker and Yannotti. On appeal from Superior Court of New Jersey, Law Division, Hudson County, No. HUD-L-3774-02. Paul Faugno argued the cause for appellants/ cross-respondents (Faugno & Associates, attorneys; Mr. Faugno, on the brief). Joanne Venino argued the cause for respondent Township of Weehawken (Venino and Venino, attorneys; Ms. Venino, of counsel and on the brief). Robert Wayne argued the cause for respondent Richard Allgayer (Seiden Wayne, attorneys; Mary F. Hahn, on the brief). Richard D. Gaines argued the cause for respondents/cross-appellants Kim Pamperin and Tracy Pamperin (Richard D. Gaines & Associates, attorneys; Mr. Gaines, on the brief). Respondents Edward McClary and Gregory McClary, d/b/a H. Cross & Company, did not participate in this appeal. No briefs were filed on behalf of respondent Maria Proochansky or intervenor-respondent

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Donna Jandik. PER CURIAM Plaintiffs Konstantinos Natsis and Helen Natsis, his wife, appeal from orders entered by the trial court: the order of October 15, 2004, dismissing their claims against defendants Richard Allgayer and Kim and Tracy Pamperin; the order of November 17, 2004, entering judgment against them for $123,841 in favor of defendant Township of Weehawken; and the order of January 5, 2005, entering judgment in favor of the Pamperins for $43,583.51 on their counterclaim against plaintiffs. After reviewing the record in light of the contentions advanced on appeal, we have concluded that these orders must be affirmed in part and reversed in part and the matter remanded for further proceedings. I The matter has a complex factual and procedural history, which must be set forth to analyze the issues before us. In April 2000, plaintiffs purchased premises located at 347-353 Park Avenue in Weehawken. The rear yard of the property was not completely flat but rather abutted a steep slope on the top of which were the homes of defendants Kim Pamperin and her sister Tracy Pamperin and defendant Richard Allgayer. The Pamperin and Allgayer homes front on Hackensack Plank Road. Kim Pamperin testified that her home is built into the Palisades and that the retaining wall at the rear of her property is two to three stories higher than the roof of plaintiffs' house. [10-19-04 58, 3-13] At the time plaintiffs acquired the property, significant debris had accumulated on the premises, and they were required to do an extensive clean-up of the property, which evidently had not been tended to for some time. The extent of those clean-up efforts was disputed at trial; defendants maintained that plaintiffs made steep cuts into the slope behind their home and removed trees and vegetation, undermining the stability of the slope. Plaintiffs denied doing so. The clean-up efforts led to the discovery of a clay sewer pipe running through plaintiffs' property, including their basement, and from there, connecting with the sewer main in Park Avenue. The pipe, when discovered, was damaged and leaking. Plaintiffs traced the pipe back to the Pamperin and Allgayer property. Plaintiffs eventually learned that the title search performed prior to their purchase of this property failed to uncover the existence of a sewer easement that had been granted and recorded in May 1923. Under the terms of that easement, the Hesses, plaintiffs' predecessors in title, gave a perpetual easement to Eugenia Gorski, the Pamperins'

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predecessor in title, to [L]ay down and perpetually maintain a sewer, to, upon, through and beyond the lands of [the Hesses] and [the Hesses] hereby agree to construct and maintain at their own expense, a sewer, spur and trap and an outlet sewer, from a point within their said lands to the public sewer . . . and do agree to and do hereby authorize and permit [Gorski] to connect her proposed sewer therewith. It is further agreed between the parties that the sewer from the spur and trap to the street or public sewer, shall be maintained by [the Hesses] and each of their heirs and assigns forever, and that the sewer from [Gorski] to the said trap shall be constructed and maintained by [Gorski] at the expense of [Gorski], her heirs and assigns forever, or as long as said sewer shall remain in use. The easement recites that Gorski paid the Hesses two hundred dollars as consideration for granting this easement. When the Pamperin home was built and the sewer line laid, the adjoining property, now owned by Allgayer, was vacant. At some point, plaintiffs' property, the Pamperin property and that vacant lot were all owned by H. Cross & Co., which constructed what is now the Allgayer home on that vacant lot. In doing so, it connected the sewer line from the Allgayer house to the Pamperin sewer line so that the flow from both houses ran through plaintiffs' property. Indeed, while this litigation was in progress, the parties discovered that yet another household on Hackensack Plank Road, owned by Maria Proochansky, was also connected to the Pamperin sewer line. The record contains no indication that the easement was ever modified to permit this increased flow. Plaintiffs contacted the Pamperins and Allgayer who, up to that point, had been similarly unaware of the sewer easement. They came and inspected the site and agreed that the Pamperins and Allgayer would share the cost of having Roto-Rooter repair the leak. At the time of this inspection, the Pamperins and Allgayer also entered plaintiffs' basement because plaintiffs complained that their sump pump was working continually and they were experiencing leaks from the sewer pipe in their basement. The Pamperins and Allgayer noted that at some point the washing machine in plaintiffs' basement had been connected to the Pamperins' sewer pipe so that it drained through the Pamperins' sewer line. There was evidence this connection was made prior to plaintiffs' purchasing the house; it was clear from the descriptions offered of the connection that it could not have been the work of a professional plumber. Roto-Rooter repaired the leaking sewer pipe by removing a section of the original clay piping and replacing it with PVC piping. None of the parties called a representative of Roto-Rooter to testify as to the work that was done. The parties did, however, without objection, present to various witnesses the text of the notes of the individual who performed the work. These read as follows: Monday 10-9-00

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I camera inspected and line located the sewer from the clean out on the top of the hill. I could not pass with the camera 4 ft. before the lower retaining wall in back of the lower house. At this sight [sic] the clay pipe had been exposed. The pipe had been sealed with cement at the joints. Wednesday 10-11-00 I returned to the sight [sic] to repair the pipe and evaluated the problem further as per my contract with Richard Allgayer. I removed a 3 ft section of 6 inch clay pipe. Just beyond this location up to 3 ft I remove a brick, rocks, debris, and yellow plastic bags. I cleared 50 ft of pipe and was able to camera approx. 23 ft. The clay pipe looked OK. I could not get a clear view of the 90 [degree] fitting at the bottom of the retaining wall . ... During the course of the trial, there was testimony that the work was inspected and approved by Weekhawken, but there was also testimony that the repair did not comply with the requirements of the Weehawken plumbing code. There is no evidence in the record as to why the Roto-Rooter representative was unable to obtain a clear camera view of the entire line. Leaks continued to develop. From the record, it appears that these leaks occurred at various points in the sewer pipe, both before and after it entered plaintiffs' home. Plaintiffs testified that at various times sewage flowed down the hill and onto their property. Their attempts to receive assistance from the Township were unavailing; they were repeatedly told that it was their obligation to remediate the condition because it was on their property. There was also testimony, however, that at an indeterminate point, a modification had been made to a portion of the Pamperin sewer pipe located in plaintiffs' basement. Mr. Natsis testified that the Pamperin six-inch line that entered his basement was reduced to a four-inch line and then connected with his own four-inch line. He also testified that was the condition of the line when he purchased the house. There was also testimony that a prior owner had put in a new sewer line to the street and had disconnected the floor drain in the basement. At several times, the leaks in the sewer pipe resulted in sewerage flowing down the slope, across plaintiffs' property and onto the public street. Because of the public health implications, Weekhawken twice retained plumbers to perform repair work and submitted their bills to plaintiffs, who refused to pay them. In May 2001, plaintiffs, on their own, relocated the Pamperin sewer pipe running through their property, replacing some of the buried clay pipe with exposed PVC piping. Leaking persisted, with sewage again occasionally running into the public street. There was also testimony that the Pamperins and Allgayer contended that Mr. Natsis had disconnected portions of the sewer line; there was also testimony that eventually the municipal judge in Weehawken entered an order prohibiting Mr. Natsis from doing anything to the Pamperin-Allgayer sewer line. The leaks still persisted.

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In May 2002, plaintiffs filed a complaint against Weehawken, Allgayer, their title insurance company, and various John Doe defendants. There was testimony that plaintiffs settled their claim against the title insurance company for twenty thousand dollars, representing the difference in value between their property with the sewer easement and its value without the sewer easement. Plaintiffs' complaint was eventually amended to join the Pamperins as defendants, together with H. Cross & Co. who sold the property to plaintiffs. Weehawken counterclaimed against plaintiffs for the costs it had incurred in connection with the matter. In February 2004 Weehawken's construction official served a notice on plaintiffs declaring a public health nuisance in the following respects: 1. Damaged sewer disposal pipe creating an unsanitary and potentially dangerous condition . . . . 2. Existing loose rocks and boulders on the Steep Slope have slid down the slope presenting a potentially dangerous condition . . . . 3. A bedrock outcrop due to rock fractures and seepage has created a potentially dangerous condition . . . . 4. Near vertical excavation has created direct exposure of existing sub-grade soils which are expected to erode resulting in potential landslides creating a dangerous condition . ... 5. The base and tree roots at the eastern portion of your property were exposed, apparently during excavation, and may compromise the stability of the Steep Slope presenting a potentially dangerous condition . . . . Plaintiffs were notified they must abate the nuisance and that if abatement had not commenced within five days, the Town would act to do so. On February 18, 2004, Weehawken obtained an order to show cause, returnable the next day. The following day the trial court entered an order permitting Weehawken to immediately enter the Natsis property and take all necessary action to repair pipes-fill in the ditch and install appropriate fencing to avoid rock slides. The township will pay for the repairs. Ultimate assessment of costs as between township and Natsis and any other parties to be determine[d] by court order at a later date. Based upon that order, Weehawken retained Fletcher Creamer, a contracting company, to perform extensive work upon plaintiffs' property and the property of their neighbor to the south, upon whose property plaintiffs had allegedly diverted the sewerage leaking from the Pamperin-Allgayer line. The work performed by Fletcher Creamer did not involve the diversion of the Pamperin-Allgayer sewer line plaintiffs had constructed; that remained in place at the time of trial.

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Rather, Fletcher Creamer, after inspecting the site and consulting with Weehawken's consulting engineers on how to proceed, removed the soil that had apparently migrated upon the neighbor's property and used it to fill sand bags which in turn were used to fill in one portion of the steep slope behind plaintiffs' property. It then placed stabilization fabric over the sand bags and seeded the area. In addition, it filled in another portion of the steep slope with a gabion wall, wire buckets filled with stones. It also constructed a soil berm to prevent any flow upon the property to the south. While the work was in progress, plaintiffs protested that it exceeded the scope of what had been contemplated under the trial court's order of February 19, 2004, but their protests were rejected. When the work was completed, Fletcher Creamer billed Weehawken more than $76,000. Weehawken added that sum to the amounts it sought to recover from plaintiffs in its counterclaim. Various amendments to the pleadings were filed, as a result of which plaintiffs' claim against Allgayer was stated to be his alleged failure to maintain his property, with the result that rocks were falling onto plaintiffs' property and damaging it and undermining and damaging the sewer pipe; their claim against the Pamperins was failure to maintain the sewer pipes. The Pamperins counterclaimed, seeking damages for plaintiffs' failure to honor a settlement that the parties had allegedly negotiated. Prior to commencement of the trial, the parties presented several in limine motions. During the course of these motions, the parties agreed that the Pamperins' counterclaim against plaintiffs with regard to their alleged failure to comply with a settlement would be handled in a separate bench trial at the conclusion of the jury proceedings. The trial court granted defendants' motions to bar plaintiffs from presenting expert testimony and dismissed with prejudice all of plaintiffs' claims against the Pamperins and Allgayer. It reached this result with regard to Allgayer because the individual who had submitted a proposal to plaintiffs to stabilize the steep slope had not submitted a report that the falling rocks were due to any fault on Allgayer's part. The trial court did rule, however, that plaintiffs could testify as to their own observations of rocks falling from Allgayer's property onto their own property. With regard to the Pamperins, the trial court noted that plaintiffs had no expert to testify about the maintenance required for clay sewer pipes and the length of their useful life. At the end of the trial, the trial court granted Weehawken's motion for judgment and entered judgment against plaintiffs for $123,841. As a result of the trial court's rulings, the claim remaining to be submitted to the jury was the claim of the Pamperins for damages for plaintiffs' alleged interference with their use of the sewer line. In connection with this claim, the trial court prepared a verdict sheet. Counsel agreed to submit this question using the following language
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proposed by the trial court: "Did Natsis and/or previous owners breach the easement contract with Pamperin by destabilizing the steep slope, thus undermining the sewer line easement?" The jury answered "No" to this question and in accordance with the court's instructions, stopped their deliberations. After a brief respite, the trial court heard the Pamperins' claim with regard to the alleged settlement. At the end of that proceeding, the trial court found in favor of the Pamperins and entered judgment for $43,583.51 in their favor on their counterclaim. The net result of the proceedings is that plaintiffs, who the jury absolved of any fault, had judgments entered against them for more than $166,000. II We view the matter from a somewhat different perspective than that presented to us by the parties. We agree with plaintiffs that the trial court prematurely dismissed their claims against the Pamperins. The provisions of the 1923 easement agreement clearly placed upon the Pamperins, as the successors to Gorski, the obligation to maintain the sewer pipe from their premises to the sewer trap. We agree with plaintiffs that they should have been permitted to introduce the easement and testify as to the recurrent leaks in the sewer pipe from which they suffered from the time of their purchase of the property, together with their testimony that they did nothing to cause those leaks. At that point, the burden should have shifted to the Pamperins to establish what they did to maintain the sewer line in good condition. From the record before us, it is inferable that the Pamperins did nothing in that regard. Further, we agree with plaintiffs that the trial court should not have entered judgment in Weehawken's favor for $123,841 at the juncture that it did. While the trial court was understandably concerned that the citizens of Weehawken not be saddled with paying for improvements on private property, the work performed under the trial court's order of February 19, 2004, far exceeded the fencing that the trial court authorized. It strikes us, moreover, as particularly unfair to saddle plaintiffs with this entire cost in light of the jury's clear, factual determination that plaintiffs did nothing that would undermine the steep slope or the sewer pipes. Having reviewed the trial record, we are satisfied, however, that plaintiffs were not prejudiced by the trial court's action in dismissing their claims against Richard Allgayer. The trial court permitted plaintiffs to present testimony that they observed rocks falling from the Allgayer property onto their property, but they were unable to do so. III We turn now to the issue of the judgment entered in the Pamperins' favor following the bench trial. In the summer

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of 2003 (prior to Weehawken's declaration of a public nuisance and Fletcher Creamer's extensive work on plaintiffs' property), the parties engaged in various settlement discussions. The thrust of these discussions involved the Pamperins and Allgayer constructing a new sewer line that would connect with the main in Hackensack Plank Road. Construction of such a line would permit the Pamperins to release their easement over plaintiffs' property; the parties envisioned a settlement that would encompass not only release of that easement, but release of their respective claims against each other. The settlement talks became protracted because of disagreements between the Pamperins and Allgayer as to how to allocate the costs of construction and maintenance, as well as the discovery that a third house, owned by Proochansky, had also tied in to the Pamperin sewer line at an undetermined point in time. On July 24, 2003, plaintiffs' counsel wrote to the attorneys for Weehawken, the Pamperins and Allgayer, stating that if there were no settlement by August 1, 2003, plaintiffs intended to proceed with litigation. The settlement was not consummated by that date, but discussions continued thereafter. Those discussions, however, did not directly involve plaintiffs' counsel. After the disputes had been worked out, the Pamperins' attorney forwarded a draft of a stipulation of settlement to plaintiffs' attorney on December 1, 2003. When he received back executed copies from all the parties except plaintiffs, he contacted plaintiffs' counsel who took the position that there was no settlement because the August 1 deadline had passed. The Pamperins took the position that plaintiffs' rejection of the settlement proposal resulted in their incurring legal fees to defend against claims that would have been dismissed if the settlement had been consummated. The trial court found in their favor. Before turning to the merits of the issue, we note the manner in which this claim was tried. The attorneys for the Pamperins and for Weehawken were necessary witnesses. They did not arrange for another lawyer to handle the matter and question them. Rather, with the consent of everyone, they were permitted to give narrative statements, upon which they were then cross- examined. Because all parties concurred in this procedure, we make no comment as to its propriety. Having considered the matter, we are convinced that the judgment in favor of the Pamperins cannot stand. The Pamperins have not cited any authority for the proposition that they are entitled to recover the counsel fees they were required to pay to defend against plaintiffs' claims once plaintiffs asserted that the matter was not settled. If the Pamperins were of the view that a valid settlement had been negotiated, the proper procedure would have been to seek judicial relief as soon as they were alerted to the position plaintiffs asserted. The Pamperins could not, of course, at that juncture seek relief under R. 1:10-3 because there was no order or judgment incorporating the terms of the alleged settlement; the proper procedure would have been to file a motion to enforce the alleged
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settlement. Haynoski v. Haynoski, 264 N.J. Super. 408, 414 (App. Div. 1993). We note in this regard that the memos and drafts relating to this alleged settlement that have been provided to us on appeal make no provision for payment of counsel fees if one party found it necessary to file an application to enforce that settlement. Such language is often incorporated into settlement agreements in an attempt to forestall future disputes and expenses. See, e.g., Amatuzzo v. Kozmiuk, 305 N.J. Super. 469, 472 (App. Div. 1997). Rather, the October 20, 2003, memorandum of the Pamperins' counsel outlining the terms of the proposed settlement merely notes that each party would be responsible for his or her own counsel fees. We recognize the procedural problems facing counsel at the point at which this settlement was allegedly negotiated. Indeed, the Pamperins had not yet filed an answer, and one of the goals of their counsel was to resolve all of the disputes without the necessity of proceeding to litigation. While that goal may be entirely laudable, it does not warrant reimbursing them for the counsel fees they expended once they learned that the attempt to settle this litigation was fruitless. IV The Pamperins filed a cross-appeal from the judgment entered following the jury's verdict that plaintiffs had done nothing to undermine their sewer line easement. They have not briefed the issues in connection with that crossappeal, and they are thus deemed waived. Jones v. Aluminum Shapes, Inc., 339 N.J. Super. 412, 415, n.1 (App. Div. 2001). V The orders under review on appeal are reversed, and the matter is remanded to the trial court for further proceedings; the cross-appeal is dismissed.

Sometimes referred to as "Proodhansky." Incorrectly identified on the original caption as Tracy "Lin." Incorrectly spelled on the original caption as "Algyer." (continued) (continued) 19 A-2552-04T2
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