Opinion
DOCKET NO. A-2978-13T4 DOCKET NO. A-5728-13T4 DOCKET NO. A-0615-14T4
05-01-2015
ADELPHIA GREENS II CONDOMINIUM ASSOCIATION, INC., Plaintiff-Respondent, v. LEORA DUBROVSKY, Defendant-Appellant. ADELPHIA GREENS CONDOMINIUM ASSOCIATION, INC., Plaintiff-Respondent, v. LEORA DUBROVSKY, married, Defendant-Appellant. ADELPHIA GREENS CONDOMINIUM ASSOCIATION, INC., Plaintiff-Respondent, v. RICHARD DUBROVSKY and LEORA DUBROVSKY, husband and wife, Defendants-Appellants.
Elias L. Schneider argued the cause for appellants. Thomas V. Giaimo argued the cause for respondent Adelphia Greens Condominium Association, Inc. (Giaimo & Associates, LLC, attorneys; Mr. Giaimo, of counsel and on the brief). Cutolo Mandel LLC, attorneys for respondent Adelphia Greens II Condominium Association, Inc. (Jeffrey S. Mandel, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Argued (A-5728-13 and A-0615-14) and Submitted (A-2978-13) April 22, 2015 Before Judges Alvarez, Waugh, and Carroll. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket Nos. DC-4755-13, L-1099-13 and L-1107-13. Elias L. Schneider argued the cause for appellants. Thomas V. Giaimo argued the cause for respondent Adelphia Greens Condominium Association, Inc. (Giaimo & Associates, LLC, attorneys; Mr. Giaimo, of counsel and on the brief). Cutolo Mandel LLC, attorneys for respondent Adelphia Greens II Condominium Association, Inc. (Jeffrey S. Mandel, of counsel and on the brief). PER CURIAM
Plaintiffs, Adelphia Greens Condominium Association, Inc. (Adelphia) and Adelphia Greens II Condominium Association, Inc. (Adelphia II), are the governing bodies for residential condominium developments located in the Townships of Howell and Freehold. Defendant Leora Dubrovsky owns two condominium units in Adelphia, one in her name alone, and the other jointly with her husband, defendant Richard Dubrovsky. Leora also owns a condominium unit in Adelphia II. All three units are utilized by defendants as investment properties.
Because defendants share a common surname we sometimes refer to them by their first names in this opinion for clarity and ease of reference. In doing so we intend no disrespect.
Defendants failed to pay condominium dues and assessments in a timely manner. Consequently, Adelphia recorded liens against defendants' units in the amount of the delinquent assessments in July 2011. Updated liens for additional unpaid assessments were filed in February 2014. Also, on March 20, 2013, Adelphia filed separate actions in the Monmouth County Law Division seeking judgments for unpaid condominium maintenance fees, late fees, and attorney fees attributable to defendants' two units located within that association. Defendants unsuccessfully moved to consolidate the two actions. On July 11, 2014, Judge Dennis R. O'Brien entered summary judgment against Leora for $21,276.58 owed on her unit, including legal fees and costs of $10,350.58. On September 5, 2014, Judge Joseph P. Quinn entered summary judgment against defendants relative to the jointly-owned unit for $23,791.60, which included attorney's fees and costs of $13,003.60.
On April 8, 2013, Adelphia II filed a complaint against Leora in the Monmouth County Special Civil Part. Adelphia II sought judgment against Leora for unpaid condominium maintenance fees, late fees, and attorney's fees related to her unit located within that association. The complaint designated the unit as 2802 Kapalua Court. Following a bench trial on September 23, 2013, during which the sole defense raised was that Leora owned 2808 Kapalua Court, not Unit 2802, Judge David F. Bauman awarded Adelphia II $10,356.55 in unpaid dues and assessments. The judge instructed plaintiff's counsel to submit a certification of services relative to the counsel fee request. Following consideration of that application, and Leora's objection, Judge Bauman awarded Adelphia II counsel fees and costs of $5250. On February 28, 2014, the court entered final judgment in favor of Adelphia II against Leora in the total amount of $15,606.55.
Adelphia II previously filed its complaint on April 5, 2012. Leora moved to dismiss the complaint in lieu of filing an answer, on the basis that the complaint failed to specify the unit address and the amount of the claim. On February 2, 2013, the court dismissed the complaint without prejudice. Adelphia II claims it was never served with the motion, and only became aware of it upon receipt of the order. Adelphia II then filed a new complaint on April 8, 2013.
We discuss the discrepancy in the unit address in detail infra.
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In these appeals from the three judgments, calendared back-to-back and consolidated for purposes of our opinion, defendants do not dispute that they have failed to pay condominium dues and assessments in the amounts claimed by plaintiffs. Defendants also readily admit that plaintiffs have the right to place liens on defendants' respective condominium units as a consequence of their non-payment. The essence of the dispute is defendants' contention that the condominium associations' remedy is restricted to placing a lien against the units, rather than seeking a personal judgment against the unit owners, in the absence of a signed agreement by the unit owners to be responsible for the fees and expenses. After reviewing the statutory scheme established in the New Jersey Condominium Act, N.J.S.A. 46:8B-1 to -38, and the controlling condominium documents, we reject defendants' arguments and affirm the judgments.
I.
Adelphia's suits against defendants were both resolved by summary judgment. We review summary judgment decisions de novo and apply the same standard utilized by the trial court, namely, whether the evidence, when viewed in a light most favorable to the non-moving party, raises genuinely disputed issues of fact sufficient to warrant resolution by the trier of fact or whether the evidence is so one-sided that one party must prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).
In this matter, there are no material facts in dispute and the issue is purely an interpretation of the applicable law. We owe no deference to the trial court's interpretation. Hand v. Philadelphia Ins. Co., 408 N.J. Super. 124, 134 (App. Div.), certif. denied, 200 N.J. 506 (2009). "A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
Adelphia II's judgment against Leora followed a non-jury trial. Our scope of review after a bench trial is limited: we must defer to the trial judge's fact-findings and credibility determinations, in light of its "opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 161 (1964)) (internal quotation marks omitted). "Findings by the trial judge are considered binding on appeal when supported by adequate, substantial and credible evidence." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citing N.J. Tpk. Auth. v. Sisselman, 106 N.J. Super. 358 (App. Div.), certif. denied, 54 N.J. 565 (1969)).
Thus, we do "'not disturb the factual findings and legal conclusions of the trial judge unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice[.]'" Seidman v. Clifton Sav. Bank, S.L.A., 205 N.J. 150, 169 (2011) (alteration in original) (quoting In re Trust Created by Agreement Dated December 20, 1961 , 194 N.J. 276, 284 (2008)). However, like the summary judgment standard, we owe no deference to the trial court's "interpretation of the law and the legal consequences that flow from established facts," Manalapan Realty, supra, 140 N.J. at 378, and we review such decisions de novo, 30 River Court E. Urban Renewal Co. v. Capograsso, 383 N.J. Super. 470, 476 (App. Div. 2006) (citing Rova Farms, supra, 65 N.J. at 483-84).
A.
Guided by these principles, we first consider defendants' main argument on appeal. Defendants frame this argument in a myriad of point headings and subparts, many of which either have no relevance or rely on inapplicable legal authority from other jurisdictions. Distilled to its basics, defendants' argument advances a simple premise: that, absent a separate signed agreement, a unit owner has no personal liability for condominium dues, assessments, and other charges. Rather, a condominium association's remedy in the event of a unit owner's non-payment is limited to placing a lien against the unit.
Plaintiffs disagree, and argue that defendants are statutorily and contractually liable to pay these dues and assessments. Plaintiffs contend that defendants' payment obligation is personal and unconditional, and flows automatically from their ownership of the condominium units.
It is well-established that "[t]he rights and responsibilities of a condominium unit owner and a governing association are controlled both by statute, N.J.S.A. 46:8B-1 to -38 [commonly referred to as the New Jersey Condominium Act], and the particular master deed and bylaws in effect." Davis v. Metuchen Gardens Condo. Ass'n, 347 N.J. Super. 345, 347 (App. Div. 2002). Here, a review of both the relevant statutory authority and the controlling condominium documents leads to the inescapable conclusion that defendants are personally liable for the delinquent condominium association expenses.
Initially we note that, upon taking title to each unit, defendants signed Unit Deeds reciting that their ownership was "subject to the Master Deed . . . and all [its] exhibits including all easements, terms, conditions, . . . covenants [of] record, [and] governmental statutes, ordinances and regulations . . . ." Defendants acknowledged their "understand[ing] that the Grantor has caused the Condominium Documents to be adopted, recorded[,] and [] binding on the owners of all units in the Condominium . . . ."
Section 11(a) of the "Declaration of Restrictive and Protective Covenants, Agreements and Easement Grants" (the Declaration) contained in the Master Deeds to the Adelphia and Adelphia II Condominiums provides in pertinent part:
That the owner of each Unit . . . is bound to contribute according to the percentage of his undivided interest in the Common Elements . . . toward the expenses of administration, maintenance[,] and repairs of the Common Elements . . . . No owner may exempt himself from contributing toward such expenses by waiver of the use and enjoyment of the Common Elements . . . or by abandonment of the Units owned by him or otherwise. A Unit owner shall, by accepting a Deed, be conclusively presumed to have agreed to pay his proportionate share of common expenses accruing while he is the owner of a Unit.Article IV, Section 3 of plaintiffs' By-Laws, attached as an exhibit to the Master Deeds, similarly provides that:
Each Member is bound to contribute pro rata in the percentage of his undivided interest in the Common Elements . . . . No Member may exempt himself or be exempted from contributing toward such expenses by waiver of the use or the enjoyment of the Common
Elements . . . or by abandonment of the Unit owned by him or otherwise. A Member shall, by accepting a Deed, be conclusively presumed to have agreed to pay his share of the common expenses accruing while he is a Unit owner.
These provisions of plaintiffs' Master Deeds and By-Laws conform to the New Jersey Condominium Act, pursuant to which unit owners are responsible for their proportionate share of common maintenance charges and assessments. N.J.S.A. 46:8B-17. "A unit owner shall, by acceptance of title, be conclusively presumed to have agreed to pay his proportionate share of common expenses accruing while he is the owner of a unit." Ibid. Additionally, a condominium association may
levy and collect assessments duly made by the association for a share of common expenses or otherwise, including any other moneys duly owed the association, upon proper notice to the appropriate unit owner, together with interest thereon, late fees and reasonable attorneys' fees, if authorized by the master deed or bylaws.
[N.J.S.A. 46:8B-15(e).]
With respect to remedies, the Condominium Act provides that "[t]he association shall have a lien on each unit for any unpaid assessment duly made by the association for a share of common expenses or otherwise . . . ." N.J.S.A. 46:8B-21(a). "Liens for unpaid assessments may be foreclosed by suit brought in the name of the association in the same manner as a foreclosure of a mortgage on real property." N.J.S.A. 46:8B-21(f). Importantly, the Act also provides that "[s]uit to recover a money judgment for unpaid assessments may be maintained without waiving the lien securing the same." Ibid.
In the present case, plaintiffs' statutory right to bring an action to recover a money judgment against defendants for unpaid assessments, including late fees and attorney's fees, is accompanied by a corresponding right to do so under the controlling condominium documents. Section 12 of plaintiffs' Declaration provides that:
all charges, expenses and assessments chargeable to any Unit shall constitute a lien against said unit in favor of the Association . . . . In the event that the assessment, charge or other expenses giving rise to said lien remains unpaid for more than ten (10) days after the same shall have become due and payable, a $10 late charge shall be levied against the Unit for each month that said assessment charge or other expense remains unpaid, and, in the event that the assessment, charge or other expenses giving rise to said lien remain unpaid for more than thirty (30) days after the same shall become due and payable, the lien may be foreclosed by the Association . . . and . . . the Association shall, in addition to the amount due, be entitled to recover reasonable expenses of the action, including costs and attorneys' fees. In addition, such charges and expenses shall bear interest . . . . The right of the Association to foreclose the lien aforesaid shall be in addition to any other remedy which may be available to it for the collection of such charges and expenses,
including the right to proceed personally against any delinquent owner for the recovery of a personal judgment against him.Similarly, Article IV, Section 6 of Adelphia's By-Laws, and Article IV, Section 7 of Adelphia II's By-Laws, provide that:
[Emphasis added.]
All such charges and expenses chargeable to a Member and his Unit shall constitute a lien against the said Unit in favor of the Association for the use and benefit of the Members of the Association . . . . The said lien may be foreclosed . . . and, in the event of foreclosure, the Association shall be entitled to recover, in addition to the amount due, reasonable expenses of the action including costs and attorneys' fees. Such charges and expenses shall bear interest from the due date . . . . The right of the Association to foreclose the lien shall be in addition to any other remedy which may be available to it for the collection of the monthly charges and expenses including the right to proceed against any delinquent Member for the recovery of a personal judgment against him.
[Emphasis added.]
Defendants do not dispute that they defaulted on their financial obligations. Contrary to defendants' arguments, however, plaintiffs were not limited to filing liens against defendants' units in an effort to collect the delinquent maintenance charges, which have been characterized as the "financial life-blood" of a condominium association. Park Place E. Condo. v. Hovbilt, Inc., 279 N.J. Super. 319, 323 (Ch. Div. 1994). Rather, in addition to recording such liens, plaintiffs were clearly authorized under the Condominium Act and the controlling condominium documents to recover personal judgments against defendants for the delinquent dues, assessments, and other charges.
B.
Leora next argues that the trial court erred in amending Adelphia II's complaint to correct the property address at the conclusion of the proceedings. We disagree.
As noted, Adelphia II's complaint improperly identified the address of Leora's unit as 2802, rather than 2808, Kapalua Court. Leora based her defense on non-ownership of Unit 2802, alleging such in her answer, during discovery, and at trial.
During trial, plaintiff introduced the deed establishing Leora's ownership of 2808 Kapalua Court, which was admitted into evidence without objection. Plaintiff also introduced, without objection, the account ledger for 2808, listing defendants as the owners and itemizing the amounts due for monthly fees, special assessments, late charges, and attorney's fees.
Leora did not testify at trial. Her husband, Richard, testified that neither he nor his wife ever owned property at 2802 Kapalua Court. Richard did not contest that his wife owned 2808 Kapalua Court, nor that the debt was owed on that property.
At the close of the trial Leora moved to dismiss on the basis that she did not own the property that was the subject of the complaint. The court denied the motion and entered judgment against Leora, reasoning:
The defense, indeed the sole defense raised by [] defendant, was that the complaint alleged various assessments and fees due and owing for a unit, specifically 2802 Kapalua Court, which defendant claims she does not own. Although I would point out that Ms. Dubrovsky herself did not testify. Her husband was the sole witness in support of those facts.
And Mr. Dubrovsky testified that the complaint, the second complaint that was filed, listed 2802 as the unit in question. . . . An answer was filed July 1[], 2013[,] in which Ms. Dubrovsky, through counsel, denied ownership of that unit and according to [defense counsel], demanded discovery which apparently came in only last Friday.
And I will note that [defense counsel] did not request an adjournment of this trial in order to, or I guess because he felt that he was prejudiced by the late submission of the discovery. But no motion for relief as a result of the late discovery was made.
And I certainly understand [defense counsel's] argument, that the complaint says what it says, we're entitled to defend against those allegations. But there is a court rule, and the court rule is 4:9-2, which is titled, amendments to conform to the evidence. And I will read in pertinent part that rule, which provides that, "when
issues not raised by the pleadings and pretrial order are tried by consent or without the objection of the parties, they shall be treated in all respects as if they had been raised in the pleadings and pretrial order."
And I raise that provision because of the [c]ourt's previous observation that the documents, indeed all the documents, were admitted without objection from either party. And there was an admission that the Dubrovskys own 2808, there was absolutely no dispute on cross examination as to the amounts due and owing. There was no dispute as to the authenticity of P-3 which is the deed that was signed by the owner, Dubrovsky, for unit 2808.
And so by operation of [Rule] 4:9-2, the [c]ourt will deem all the evidence submitted with respect to unit 2808 to consider that evidence as if it had been raised in the pleadings. And again, I do that because the evidence was not objected to and there was no question as to the reliability, if not the authenticity of those documents.
The court has discretion under Rule 4:9-2 to amend the pleadings to conform to the record. See Teilhaber v. Greene, 320 N.J. Super. 453, 466 (App. Div. 1999) (citation omitted) (holding that "a 'deficient' complaint that omits a specific legal theory may be remedied at trial by showing the appropriate proofs for the omitted theory"); 68th St. Apts., Inc. v. Lauricella, 142 N.J. Super. 546, 561 n.3 (Law Div. 1976) (indicating that even when a legal theory was not advanced in the pleadings, it is properly before the court if it was "fully aired" at trial and in post-trial briefs), aff'd o.b., 150 N.J. Super. 47 (App. Div. 1977).
Here, Adelphia II did not even seek to assert a new legal theory at trial; rather, it simply sought to correct a typographical error in the property address listed in the complaint. The documentation furnished by Adelphia II during pre-trial discovery related to 2808 Kapalua Court dispels any claim by Leora that she was unfairly surprised by the amendment. Leora also argues that she was prejudiced by the late amendment, as it deprived her of the opportunity to argue that she bore no personal liability for the condominium fees and assessments. However, we have fully addressed this contention above, and concluded that it lacks merit.
C.
Finally, defendants challenge the counsel fees awarded to both Adelphia and Adelphia II. We address these arguments in turn.
Defendants first argue that Adelphia improperly filed two separate actions to collect the delinquent expenses, in violation of the entire controversy doctrine, Rule 4:30A. According to defendants, "[r]oughly half of the fees and costs would have been avoided had the cases been consolidated or both claims had been asserted in the same case."
To be sure, the entire controversy doctrine is intended to preclude multiple suits. As has been said, the doctrine is centered on our Constitution's recognition of "the value in resolving related claims in one adjudication so that 'all matters in controversy between parties may be completely determined.'" Mystic Isle Dev. Corp. v. Perskie & Nehmad, 142 N.J. 310, 322 (1995) (quoting N.J. Const. art. VI, § 3, ¶ 4). But it is important to recognize that the doctrine is ultimately "one of judicial fairness[,] will be invoked in that spirit," Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 343 (1984); see also Archbrook Laguna, LLC v. Marsh, 414 N.J. Super. 97, 104 (App. Div. 2010), and must be tempered by the important policy that claims be decided on their merits, not procedural niceties, Galik v. Clara Maass Med. Ctr., 167 N.J. 341, 356 (2001); Alpha Beauty Distribs., Inc. v. Winn-Dixie Stores, Inc., 425 N.J. Super. 94, 102 (App. Div. 2012).
While it may have been preferable for Adelphia to have joined both claims in a single proceeding, we accede to the principle that "[t]he ultimate authority to control the joinder of parties and claims remains with the court." Kent Motor Cars, Inc. v. Reynolds and Reynolds, Co., 207 N.J. 428, 446 (2011). Here, while the two suits may have been similar, they involved separate units having different ownership. Importantly, the court denied defendants' motion to consolidate the two Adelphia actions, finding "the matters [not] sufficiently related." Under these circumstances, we conclude that the entire controversy doctrine does not bar Adelphia's claim for counsel fees in both actions.
Defendants further argue that the amount of attorney's fees granted Adelphia were excessive because they were disproportionate to the damage awards. In the action against Leora, Adelphia was awarded $10,926 in delinquent assessments, plus $10,350.58 in attorney's fees. As to the jointly-owned unit, the court entered judgment against defendants for $10,788 in delinquent assessments, plus attorney's fees of $13,003.60.
"[F]ee determinations by trial courts will be disturbed only on the rarest of occasions, and then only because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317 (1995). Here, although the counsel fee awards equal or exceed Adelphia's damages, we note that "there need not be proportionality between the damages recovered and the attorney-fee award itself." Furst v. Einstein Moomjy, Inc., 182 N.J. 1, 23 (2004); see also Walker v. Giuffre, 209 N.J. 124, 132 (2012). Defendants do not otherwise dispute the time spent or counsel's billing rate as unreasonable, and we detect no "clear abuse of discretion" here that would compel us to set aside the fee awards. Rendine, supra, 141 N.J. at 317.
Finally, defendants challenge the counsel fee award to Adelphia II, primarily based on their assertion that it included fees charged on the first complaint that the court dismissed for failure to identify the unit and the amount owed. However, Adelphia II asserts that it was never served with the dismissal motion and accordingly did not oppose it. Thus the only extra work attributable to the dismissed action appears to be the preparation, filing, and service of the first complaint.
Here, following trial, Judge Bauman conducted "a careful review of the billing records." The judge explained that he found the forty-six hours specified to be "excessive" and that it was "not clear why three attorneys (two of which bill at $190/hr) and a paralegal were required on this matter." The judge concluded that counsel reasonably expended thirty hours, which when multiplied by the third attorney's $175 per hour billing rate yielded a reasonable fee award of $5250. It is clear that Judge Bauman engaged in a well-reasoned analysis, and we find no abuse of discretion in his ultimate determination.
Defendants' remaining arguments lack sufficient merit to warrant further discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION