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. C000155-18.

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

NOT FOR PUBLICATION WITHOUT THE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.
2

A-3610-18T1

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 
3

A-3610-18T1

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,1and 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.
4

A-3610-18T1

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 
5

A-3610-18T1

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).
6

A-3610-18T1

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.
7

A-3610-18T1

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-
8

A-3610-18T1

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.