NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3446-18T3
BONNIE GLOGOVER,
Plaintiff-Appellant
v.
HUDSON HARBOUR CONDOMINIUM ASSOCIATION, INC. and CUTOLO BARROS, LLC,
Defendants-Respondents ______________________________
Argued telephonically September 15, 2020 – Decided September 29, 2020
Before Judges Haas and Natali.
On appeal from the Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C- 000320-17.
Scott B. Piekarsky argued the cause for appellant (Phillips Nizer LLP, attorneys; Scott B. Piekarsky, of counsel; Ernest W. Schoellkopff, on the briefs).
Christian M. Scheuerman argued the cause for respondent Hudson Harbour Condominium Association, Inc. (Marks, O'Neill, O'Brien, Doherty & Kelly, PC, attorneys; Christian M. Scheuerman, on the brief).
Gregg S. Sodini argued the cause for pro se respondent Cutolo Barros, LLC.
PER CURIAM
This appeal arises out of a dispute between plaintiff Bonnie Glogover, a
unit owner at the Hudson Harbour condominium building in Edgewater, and
defendants Hudson Harbour Condominium Association, Inc. (Association) and
its law firm, Cutolo Barros, LLC (Cutolo), after Cutolo attempted to collect
unpaid monthly charges for cable television service from plaintiff on behalf of
the Association.
After participating in an alternative dispute resolution (ADR) procedure
provided by the Association's by-laws, plaintiff initiated an action in the
Chancery Division claiming that the Association's collection efforts breached a
prior settlement agreement and violated the Condominium Act, N.J.S.A. 46:8-1
to -38. Plaintiff further claimed that she was defamed, suffered adverse health
effects, and was denied credit. Finally, plaintiff alleged Cutolo's actions
violated the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692-
1692p.
A-3446-18T3 2 In a November 28, 2018 order, the trial court granted summary judgment
to the Association and Cutolo and dismissed plaintiff's claims. In a separate
March 26, 2019 order, it also awarded the Association $32,249.81 in attorneys'
fees and costs. After carefully reviewing the record and considering the
applicable legal principles, we affirm the November 28, 2018 order but vacate
the March 26, 2019 order in part and remand for further proceedings.
I.
Plaintiff owns a condominium at Hudson Harbour and has resided there
for nearly thirty years. The master deed defines common expenses as "all costs
and expenses to be incurred generally by the [u]nit [o]wners pursuant to this
[m]aster [d]eed and/or the [b]y-laws in connection with . . . the . . . operation of,
and any alteration, addition, or improvement to, the [c]ommon [e]lements . . .
[and] the conduct of the affairs of the [c]ondominium." The master deed further
provides that the common elements include "all central and appurtenant
installations and facilities for services such as . . . telephone [and] cable
television." Moreover, under the Association's by-laws, the Board had the
power to "employ or contract for water and sewer, electricity and gas, or other
forms of utilities, cable, or master antenna television."
A-3446-18T3 3 On September 1, 2009, the Association entered into a contract (2009
Agreement) with Time Warner Cable (TWC) to supply cable television service
to all units in the building at a reduced rate of $42.88 per unit per month, which
would "remain in full force and effect for three . . . year[s]." After informing
all residents that they would be charged accordingly, plaintiff disputed the
expense claiming she did not utilize the service. To resolve the dispute, the
Association agreed in a June 15, 2010 confidential settlement agreement (CSA)
that plaintiff would "not be liable for any cable television charges for the entire
term of the [2009 Agreement] if she chooses not to utilize same."
The Association and TWC subsequently entered into a December 1, 2011
agreement to provide cable television services to all units in defendant's building
for $45.77 per unit (2011 Agreement). The 2011 Agreement remained in effect
for four years and further provided that it "contains the entire understanding and
agreement between the parties . . . and supersedes any prior agreements,
promises, proposals, representations, understandings and negotiations, whether
written or oral, between the parties."
Finally, the Association and TWC entered into a November 1, 2014
service and marketing agreement (2014 Agreement) whereby TWC agreed to
provide residents with cable television, high-speed internet, and phone service.
A-3446-18T3 4 The 2014 Agreement contained a similar provision as the 2011 Agreement
stating that "[t]his Agreement constitutes the entire agreement between [the
Association] and [TWC] with respect to, and supersedes all other agreements
relating to, the subject matter contained herein." The 2014 Agreement expired
after five years and continued in effect for successive one-year periods, unless
either party notified the other that it sought to terminate the 2014 Agreement.
Prior to the Association's collection efforts, it passed a March 4, 2014
resolution that declared parking a privilege and stated that "[i]f a [u]nit [o]wner
is delinquent in the payment of any assessment to the Association for more than
[sixty] days . . . [they] shall have their parking privileges revoked." Similarly,
the resolution provided that if a unit owner was "delinquent in the payment of
any assessment to the Association for more than [sixty] days . . . [they] shall
have their rights to use and enjoy the common elements suspended, including
the right to use the gym, pool, cable, and other non-essential [c]ondominium
amenities such as the concierge with regard to deliveries at the front d esk."
Nearly two years after the Association passed the resolution, Cutolo
informed plaintiff in a February 1, 2016 letter that she owed the Association
$371.48 as a result of her failure to remit payment for her monthly cable bill.
Cutolo instructed plaintiff that the Association could "suspend [her] services
A-3446-18T3 5 including but not limited to cable services and parking privileges" in the event
payment was not received.
The correspondence also informed plaintiff of her "opportunity for [ADR]
in the event [she] dispute[d] this debt and request[ed] ADR in writing." This
was consistent with the Association's by-laws which stated that an ADR
Committee had the "right to resolve disputes" that arose under and to enforce
the rules and regulations of the Association. The by-laws further stated that
"any [o]wner who is aggrieved by any decision of the ADR Committee shall
have the right to appeal such decision to a court of competent jurisdiction" but
"[i]f there is not an appeal . . . within forty-five . . . days of the decision by the
ADR Committee, the decision of the ADR Committee shall be binding on all
parties and shall have full force and effect under the laws of the State of New
Jersey."
Plaintiff disputed the debt and Cutolo responded in a February 9, 2016
letter verifying the amount owed with a ledger outlining the specific charges
"represent[ing] [her] pro-rata contribution for cable services obtained by the
Association." Having failed to receive any payment from plaintiff, Cutolo filed
a lien against plaintiff's unit for the unpaid assessments, interest, attorneys' fees,
A-3446-18T3 6 and costs, which was recorded in the Bergen County Clerk's Office on December
9, 2016.
The parties, with the assistance of counsel, thereafter voluntarily
participated in an ADR proceeding. The ADR Committee concluded that
plaintiff was required to pay all future cable bills starting on July 1, 2017 but
relieved plaintiff of any liability for past fines and penalties associated with the
cable television dispute.
The Association sent plaintiff's counsel notice of the ADR Committee
decision in a letter dated June 16, 2017 and, although it informed plaintiff that
it did not believe the ADR decision "was . . . consistent with the law of the State
of New Jersey," it nevertheless advised plaintiff that it would accept the
decision. Plaintiff's counsel, however, advised the Association in an August 1,
2017 email that plaintiff categorially "rejected the ADR decision."
Approximately six months after the ADR decision, plaintiff filed a two-
count verified complaint against the Association and Cutolo. In her first count,
plaintiff principally alleged that the Association breached the terms of the CSA
by "assessing improper, unagreed to and unauthorized charges" and "engag[ing]
in a course of draconian punishment upon [her] in the utmost unlawful fashion."
A-3446-18T3 7 Plaintiff also claimed that the Association improperly placed a lien on her
unit without providing her a copy as required by N.J.S.A. 46:8B-21, as well as
"suspend[ing] all rights and privileges of ownership" not limited to use of her
"parking spot . . . the pool, tennis court, gym, doorman services, washers/dryers,
denial of guest parking," and rejecting mail that did not fit in her mailbox. Her
second count alleged that Cutolo violated the FDCPA by using "unfair practices
as detailed and unfair and unconscionable means to collect or attempt to collect
the alleged debt and attempting to collect any amount not authorized by the
agreement creating the debt or permitted by law."
Defendants filed a timely answer and counterclaim, in which they sought
a judgment "declaring the ADR decision binding . . . [and] for any and all unpaid
amounts together with attorney's fees and costs." Defendants further alleged
that plaintiff was utilizing her unit "for commercial purposes" and sought to
enjoin plaintiff from such unauthorized uses.
After hearing oral arguments, the trial court entered a December 20, 2017
order temporarily restraining defendants from "[p]reventing [p]laintiff from
utilizing her parking space" and from "[p]reventing [p]laintiff from use of
doorman services, package delivery, washer and dryer use and all other rights
and privileges." In a January 25, 2018 order, the court further directed plaintiff
A-3446-18T3 8 to deposit $3246.66 into escrow "representing outstanding cable charges,
without prejudice to plaintiff's claim that the charges are not proper."
Defendants thereafter moved for summary judgment which the court
granted in a November 28, 2018 order that dismissed plaintiff's claims but
denied the motion as to defendants' counterclaim. In the court's accompanying
comprehensive written opinion, it concluded that the CSA only relieved plaintiff
from paying cable fees related to the 2009 Agreement. The court reasoned that
"the plain language of the CSA refers to the [2009 Agreement], which the parties
themselves understood had an expiration date of September 2012." It further
emphasized that "[i]f the parties intended the CSA to extend beyond the term of
the [2009 Agreement], they could have easily referred to the [2009 Agreement]
and all renewals or extensions thereof," which the parties did not do.
The court also determined that "the ADR decision [was] binding on both
[p]laintiff and the Association and there [was] no basis on which the court
should overturn the ADR decision." In this regard, the court noted that
according to the Association's by-laws, any party dissatisfied with the ADR
decision was required to file an appeal within forty-five days, but plaintiff "filed
the verified complaint on December 14, 2017, almost six . . . months after the
ADR decision was provided to her."
A-3446-18T3 9 Regarding plaintiff's FDCPA claim, the court found that there was "a debt
owed to the Association based on the ADR decision" and that Cutolo had "the
right to collect that debt because it is a valid debt." As to her claims of
harassment as violations of the FDCPA, the court noted that plaintiff "did not
provide specificity to her claims . . . that would lead the court to believe there
have been violations of the FDCPA" and "sending several letters and filing a
lien against [plaintiff's] [u]nit is not an unusual course of action in attempting to
collect a debt."
After entry of the court's November 28, 2018 order, all parties consented
to dismiss defendants' remaining allegation that plaintiff was utilizing her unit
for commercial purposes. Soon thereafter, defendants filed an application for
$62,065 in attorneys' fees 1 and $2278.31 in costs.
In a detailed and comprehensive March 26, 2019 written opinion, the court
partially granted the Association's fee request. The court reviewed the legal
invoices and counsel's certification and concluded that although the "rates
1 The $62,065 sum was comprised of $57,065 in attorneys' fees related to Cutolo's efforts and a $5000 self-insured retention (SIR) paid by the Association to its liability insurer in accordance with the terms of the Association's insurance policy. The Association also appended to its fee application invoices from the Law Office of Steven J. Tegrar (Tegrar), the Association's appointed insurance counsel, in the amount of $21,431. The Association, however, sought reimbursement of only the $5000 SIR related to the Tegrar invoices. A-3446-18T3 10 charged by each of [Cutolo]'s professionals [were] reasonable and consistent
with prevailing market rates," there were "a number of entries for the
[c]ollection [f]ees and the [l]itigation [f]ees that are duplicative and/or
administrative [related] which should not be awarded" and accordingly reduced
the fee request by $4948.
The trial court next found that because Cutolo "represented . . . itself in
connection with [p]laintiff's claims regarding [Cutolo]'s alleged violations of the
FDCPA" and there was "no basis to allow [Cutolo] to seek to collect legal fees
in connection with [p]laintiff's FDCPA claims," it further reduced the award by
$1588. The court also reduced the fee request by an additional $5591, to reflect
those Cutolo fees duplicative of work performed by the Tegrar firm.
The court further explained that "all the factors of [RPC] 1.5(a) were
considered by the court," and it gave "significant consideration to the amounts
and issues involved and the results obtained by counsel for the Association."
The court emphasized that the claims involved were not limited to plaintiff's
personal circumstances but "implicated the potential ability of any member of
the Association to refrain from paying required monthly maintenance and
similar charges," which "could have caused havoc to the Association and its
ability to maintain/run the condominiums." The court therefore concluded that
A-3446-18T3 11 the lodestar should be further reduced by 50% from $49,943 to $24,971.50. It
also awarded $2278.31 for costs incurred, and the $5000 for the insurance
deductible paid by the Association for its insurance defense counsel for a total
of $32,249.81. This appeal followed.
II.
A.
Plaintiff argues that the ADR Committee's decision "was not controlling"
and that the trial court "wrongly decided that the decision of the [Association's]
ADR [C]ommittee[] was binding on the parties." She specifically contends that:
(1) the ADR procedures "[did] not comport with the mandate of N.J.S.A. 46:8b-
14(k) for a fair and efficient procedure for the resolution of housing-related
disputes," (2) the ADR Committee decision was not "within the authority
conferred by the governing documents and the applicable law," and (3) she never
"assented" to ADR or had "full knowledge of her legal rights." We reject all of
these arguments.
Section 14(k) of the Condominium Act provides in pertinent part that a
"[condominium] association shall provide a fair and efficient procedure for the
resolution of housing-related disputes between individual unit owners and the
association, and between unit owners, which shall be readily available as an
A-3446-18T3 12 alternative to litigation." N.J.S.A. 46:8B-14(k). We have held that so long as a
dispute "arise[s] from the parties' condominium relationship," a party may,
pursuant to N.J.S.A. 46:8B-14(k), demand submission of such disputes to ADR
in lieu of proceeding in court. Bell Tower Condo. Ass'n v. Haffert, 423 N.J.
Super. 507, 517-18 (App. Div. 2012). Here, the cable bill dispute is inextricably
linked to the parties' relationship as condominium association and unit owner.
As such, N.J.S.A. 46:8B-14(k) was applicable and the dispute was properly
resolved by the ADR Committee.
We also find no support to plaintiff's claim that the ADR process was
unfair or inefficient because it imposed a limited period for judicial review or
for any other reason. The ADR Committee's ability to hear the dispute was
specifically prescribed by the Association's governing documents. Indeed,
plaintiff had appropriate notice that she had forty-five days from June 16, 2017
to seek judicial review before the decision became binding. We find nothing
unfair or inequitable by the forty-five-day period specified in the by-laws to seek
judicial review of the ADR Committee's decision, which is consistent with a
party's right to seek appellate review of final orders. See R. 2:4-1. We also
reject plaintiff's claim that she did not knowingly assent to the ADR process as
she voluntarily participated in that process, with the assistance of counsel.
A-3446-18T3 13 B.
Plaintiff also argues that the trial court committed error in narrowly
interpreting the parties' CSA. Specifically, plaintiff contends that the CSA
applied to all cable fees because the 2011 Agreement "extend[ed] the term of
the [2009 Agreement] for an additional four years" and the 2014 Agreement
"extended the cable contract for five years." Furthermore, plaintiff argues that
the Association is estopped from collecting the cable fees due to the four-year
delay in seeking reimbursement. We disagree.
The construction of a contract is a question of law. Kieffer v. Best Buy,
205 N.J. 213, 222-23 (2011). Consequently, we review the trial court's
interpretation of a contract de novo. Id. at 222. Furthermore, "[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., 140 N.J. 366, 378 (1995).
When construing a contract, our objective is to determine the intent of the
parties. Kieffer, 205 N.J. at 223. Generally, we give the terms of a contract
their plain and ordinary meaning. Ibid. The court should not make for the
parties a different or better contract than they have made for themselves. Ibid.
A-3446-18T3 14 As the trial court properly determined, the CSA is clear and unambiguous,
and plaintiff's contention that the 2011 and 2014 Agreements extended the terms
of the 2009 Agreement are belied by the plain language of those contracts. The
CSA clearly states that plaintiff would not be liable for cable television charges
"for the entire term of the [c]able [c]ontract" which was "set to expire on or
around September 2012." The 2011 Agreement makes no specific reference to
the 2009 Agreement but states that it "supersedes any prior agreements . . .
whether written or oral, between the parties." Similarly, the 2014 Agreement
stated that it "supersedes all other agreements relating to[] the subject matter
contained herein." We find no support in the record for plaintiff's argument that
the Association and TWC intended for the 2011 and 2014 Agreements to be
extensions of the 2009 Agreement or that the CSA addressed the cable fees
encompassed by those later agreements.
We further disagree with plaintiff's argument that the court "failed to
consider the estoppel effect of [the Association's] conduct" and that the
Association "engaged in inexcusable and unexplained delay in exercising [its]
asserted right to the prejudice of [plaintiff], so as to invoke the doctrine of
laches." The by-laws clearly indicate that the Association's failure to enforce a
provision does not constitute a waiver of the Association's future right to enforce
A-3446-18T3 15 stating that "[n]o restriction, condition, obligation, or covenant contained in
these [b]y-[l]aws shall be deemed to have been abrogated or waived by reason
of the failure to enforce same irrespective of the number of violations or
breaches thereof which may occur." Thus, simply because the Association did
not seek payment for cable expenses due in 2012 until 2016 is not dispositive,
as the Association never waived its right to enforce collection of the debt.
C.
Plaintiff also maintains that "[t]he summary judgment dismissing
[plaintiff's] claims . . . arising from [the Association's] wrongful assessment of
cable television service charges, was unwarranted on the facts of record, and
contrary to law and principles of equity." Plaintiff further argues that the court
"overlooked genuine issues of material fact pertinent to [the Association's]
attempts to collect cable service charges from [plaintiff] . . . and the harm to
[plaintiff] from the [Association's] retaliatory actions in the wake of her
legitimate challenge to the charges." We are not persuaded.
We review a summary judgment order de novo by the same standard
governing the motion judge's determination. RSI Bank v. Providence Mut. Fire.
Ins. Co., 234 N.J. 459, 472 (2018). "By that standard, summary judgment should
be granted 'when the pleadings, depositions, answers to interrogatories and
A-3446-18T3 16 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.'" Woytas v. Greenwood Tree
Experts, Inc., 237 N.J. 501, 511 (2019) (quoting Brill v. Guardian Life Ins. Co.
of Am., 142 N.J. 520, 528-29 (1995)); see also R. 4:46-2(c).
As noted, the trial court properly determined that the scope of the CSA
was limited to the 2009 Agreement and there is no evidence in the record to
indicate that either the Association or TWC intended that their subsequent
agreements acted as extensions of that contract. Consequently, the CSA did not
prevent the Association from collecting cable fees related to the 2011 and 2014
Agreements from plaintiff.
Furthermore, the by-laws authorized the Association "to enforce the terms
of this instrument or any [r]ule or [r]egulation promulgated pursuant thereto, by
. . . self-help." As noted, by resolution, the Association declared parking a
privilege and stated that any owner who was delinquent for more than sixty days
for any assessments "shall have their parking privileges revoked." Similarly,
that resolution provided that owners delinquent in payments to the Association
"shall have their rights to use and enjoy the common elements suspended,
including the right to use the gym, pool, cable, and other non-essential
A-3446-18T3 17 [c]ondominium amenities such as the concierge with regard to deliveries at the
front desk." Thus, the Association was within its power to withhold plaintiff's
rights to use all of the common areas and shared services as a result of her failure
to pay her portion of the cable expenses after the CSA expired.
Here, in light of the clear and unambiguous language in the CSA, as well
as the resolution authorizing self-help remedies by the Association in the event
of delinquent payments by unit owners, we disagree with any characterization
that the Association breached a fiduciary duty to plaintiff. As noted, the
Association was well within its rights to hold plaintiff responsible for cable
charges after September 2012 and, pursuant to the by-laws, suspend her parking
privileges and access to the common areas. We accordingly concur with the
trial court that plaintiff was not entitled to any form of damages, emotional
distress, or otherwise.
D.
Plaintiff next contends that she "was entitled . . . to pursue her claims
against [Cutolo] under the [FDCPA] for attempting to collect a debt that was not
authorized" as Cutolo "was well aware of her position that the debt was invalid
in light of the settlement agreement and the applicable law" but nonetheless
persisted in "fil[ing] an assessment lien while the opportunity for ADR was yet
A-3446-18T3 18 open to resolve the issue." She argues that "because the alleged debt was not
contractually and legally authorized, [Cutolo]'s course of action also was
unlawful." Again, we disagree.
Here, as previously discussed, a valid debt existed at the conclusion of the
2009 Agreement. Cutolo did not send the first demand letter to plaintiff until
February 2016, well after the 2009 Agreement's expiration date of September
2012. As such, the debt it attempted to collect was properly owed to the
Association. And, even though plaintiff disputed the charges after receiving the
February 1, 2016 demand letter, Cutolo provided verification of the debt in a
timely February 9, 2016 response before it recorded the December 9, 2016
assessment lien against plaintiff. We find no support in the record that Cutolo
harassed, oppressed, or abused plaintiff, 15 U.S.C. § 1692d, or used unfair or
unconscionable means to collect their debt, 15 U.S.C. § 1692f. Accordingly,
the trial court properly dismissed plaintiff's FDCPA claims against Cutolo.
E.
Plaintiff also asserts for the first time on appeal that because cable
television service is not a common element under the Association's governing
documents or the Condominium Act, the Association accordingly had no right
to collect those fees. Again, we disagree.
A-3446-18T3 19 It is improper to raise an argument for the first time on appeal.
"[A]ppellate courts will decline to consider questions or issues not properly
presented to the trial court when an opportunity for such a presentation is
available unless the questions so raised go to the jurisdiction of the trial court or
concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62
N.J. 229, 234 (1973) (internal quotation marks omitted); see also R. 2:6-2.
Further, "[a]ny error or omission shall be disregarded by the appellate court
unless it is of such a nature as to have been clearly capable of producing an
unjust result, but the appellate court may, in the interests of justice, notice plain
error not brought to the attention of the trial or appellate court." R. 2:10-2.
As detailed in the court's November 28, 2018 written decision, plaintiff
challenged the Association's ability to collect the outstanding cable fees on two
discrete grounds: 1) that the 2009 Agreement did not expire in 2012 but was
instead extended by the 2011 and 2014 Agreements; and 2) she rejected the ADR
decision and was not precluded from challenging it despite her failure to comply
with the forty-five-day deadline. Plaintiff did not contend that the cable charges
were not authorized by the Condominium Act or the Association's governing
documents as she does on appeal. As plaintiff failed to raise these arguments
before the trial court, and the issue addresses neither the court's jurisdiction nor
A-3446-18T3 20 involves a matter of great public interest, we customarily decline to consider
them for the first time on appeal.
We also reject as unsupported by the record plaintiff's claim that these
arguments were preserved as they were "generally the same issues presented
before the trial court" and merely asserted the same relief under a different
theory. Plaintiff's appellate arguments challenging the propriety of the
Association from charging cable fees are distinct from those raised in the trial
court. For purposes of completeness, however, we address and reject plaintiff's
claims on the merits.
Both the Association's governing documents and the Condominium Act
permit the Association to charge all unit owners for cable television costs as
common expenses. As noted, the Association's master deed, defines common
expenses to include "all costs and expenses to be incurred generally by the [u]nit
[o]wners pursuant to this [m]aster [d]eed and/or the [b]y-[l]aws in connection
with . . . (iv) the conduct of the affairs of the [Association]." Furthermore, the
by-laws empower the Association's board of directors to "contract for . . . cable."
Providing funding for an authorized contract is clearly an expense related to the
"conduct of the affairs of the [Association]."
Similarly, the Condominium Act defines common expenses to include:
A-3446-18T3 21 expenses for which the unit owners are proportionately liable, including but not limited to: (i) all expenses of administration, maintenance, repair, and replacement of the common elements; (ii) expenses agreed upon as common by all unit owners; and (iii) expenses declared common by provisions of this act or by the master deed or by the bylaws.
[N.J.S.A. 46:8B-3(e).]
The Condominium Act also states an association "shall be responsible for
the performance of [its] duties" including "[t]he assessment and collection of
funds for common expenses and the payment thereof." N.J.S.A. 46:8B-14(b).
"The association may levy and collect assessments duly made by the association
for a share of common expenses or otherwise, . . . together with interest thereon,
late fees and reasonable attorney's fees, if authorized by the master deed or
bylaws." N.J.S.A. 46:8B-15(e).
Further, "[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." N.J.S.A. 46:8B-17. "No unit owner
may exempt himself from liability for his share of common expenses by waiver
of the enjoyment of the right to use any of the common elements or by
abandonment of his unit or otherwise." Id. "The obligation to pay condominium
A-3446-18T3 22 fees has been described as 'unconditional.'" Glen v. June, 344 N.J. Super. 371,
376 (App. Div. 2001).
The 2011 and 2014 Agreements create an expense to be incurred by all
unit owners which was authorized pursuant to the Association's powers under
its by-laws. When plaintiff purchased her unit, she agreed to be bound by the
aforementioned governing documents, which permitted the Association to enter
contracts for cable services and are therefore included as common expenses as
defined in the master deed. To hold otherwise would permit plaintiff to
selectively pay authorized contractual expenses, contrary to the terms of the
governing documents and the interests of other unit owners.
III.
Finally, plaintiff maintains that, although the Association is entitled to
recover reasonable attorneys' fees related to its collection efforts, "[the
governing documents] do not permit fee-shifting, for [the Association's] benefit,
on a unit owner's judicial challenge to the [Association's] assessment as beyond
its authority and in contravention of a previous settlement agreement." She
further argues that the attorneys' fee award should be reversed because the trial
court "cited the factors contained in [RPC] 1.5(a) and the general case law to be
considered in assessing the reasonableness of the attorneys' fee but did not
A-3446-18T3 23 expressly apply any of those factors to the circumstances presented" as required
by Rule 1:7-4. Finally, plaintiff argues that "[t]he award of over half of [the
Association's] demand amounted to more than [thirty-five] times the $900
amount paid to [the Association]," which was "unreasonable and contrary to
law." We disagree with the majority of plaintiff's arguments and remand only
for the court to address two limited issues associated with the fee award.
"[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). We award attorney's fees only where
"expressly provided for by statute, court rule, or contract." Litton Indus., Inc.
v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (quoting Packard-Bamberger &
Co. v. Collier, 167 N.J. 427, 440 (2001)).
The first step in determining the fee award is calculating the "lodestar,"
which is a reasonable hourly rate for counsel's services multiplied by the number
of hours reasonably expended. Walker v. Giuffre, 209 N.J. 124, 130-31 (2012).
Additionally, Rule 4:42-9(b) requires counsel to submit "an affidavit of services
addressing the factors enumerated by RPC 1.5(a)," as well as "a recitation of
other factors pertinent in the evaluation of the services rendered."
A-3446-18T3 24 If the court determines that the hours expended "'exceed those that
competent counsel would have expended to achieve a comparable result, a trial
court may exercise its discretion to exclude excessive hours from the lodestar
calculation.'" Packard-Bamberger, 167 N.J. at 446 (quoting Rendine, 141 N.J.
at 336). When the fee request "far exceeds the damages recovered, 'the trial
court should consider the damages sought and the damages actually recovered.'"
Litton, 200 N.J. at 387. Indeed, when the damages are disproportionately less
than the fees sought, "the court must consider that fact in determining the overall
reasonableness of the attorney's fee award." Id. at 387-88. Ultimately, the "goal
is to approve a reasonable attorney's fee that is not excessive." Id. at 388.
Strict proportionality is not a requirement in statutory fee-shifting; rather,
proportionality is one relevant factor to be considered as to the overall
reasonableness of the fee. See Walker, 209 N.J. at 132; Szczepanski v.
Newcomb Med. Ctr., 141 N.J. 346, 366 (1995) (rejecting strict proportionality
for fee-shifting statutes as the public interest is served by successful prosecution,
and the awards "assure that counsel for [plaintiffs] will receive reasonable
compensation for services reasonably rendered to effectuate the [statute 's]
objectives").
A-3446-18T3 25 We agree with the court's conclusion that plaintiff was responsible for a
portion of the Association's attorneys' fees. The Association's governing
documents authorized the recovery of attorneys' fees if a unit owner failed to
timely pay monthly association fees. Further, the Condominium Act authorizes
a condominium association to charge a non-paying member with reasonable
attorney's fees. N.J.S.A. 46:8B-21.
We also concur with the court's determination that fees related to Cutolo's
defense of plaintiff's FDCPA claims were not recoverable under the
aforementioned governing documents or the Condominium Act and further
because Cutolo was acting pro se in its own defense. Finally, we conclude the
court's determination to reduce the fees by $12,122 as duplicative and
unnecessary was fully supported by the record.
We are also convinced that the court did not abuse its discretion in finding
that plaintiff's counsel's hours and rates were reasonable under Rule 4:42-9(b)
and Rendine, 141 N.J. at 334-38. The judge thoroughly analyzed counsel's
affidavit of services and properly determined that the recoverable fees were
reasonable and warranted under the circumstances and made appropriate
reductions as necessary. Nothing in the record demonstrates that plaintiff 's
counsel's hours, after the court's reductions, "exceed[ed] those that competent
A-3446-18T3 26 counsel reasonably would have expended to achieve a comparable result,"
Rendine, 141 N.J. at 336, particularly in light of plaintiff's claims and her
aggressive litigation posture.
Further, the court expressly considered that the fee award was greater than
the damages, as required by Packard-Bamberger, 167 N.J. at 446, and,
nonetheless, determined that the fee award was reasonable. The court found that
strict proportionality was not required because plaintiff's claims "implicated the
potential ability of any member of the Association to refrain from paying
required monthly maintenance and similar charges." The court also reasoned
that plaintiff's position had the potential to cause "havoc to the Association and
its ability to maintain [and] run the condominium[]." The court clearly
considered plaintiff's limited success, halved the lodestar before concluding that
a $24,971.50 fee was a reasonable fee. Based on our review of the record, we
find no abuse of the court's discretion to warrant interference with the court's
decision. See Packard-Bamberger, 167 N.J. at 444.
We have identified two issues with respect to the fee award, however, that
require vacating the March 26, 2019 order and remanding for further
proceedings. First, it appears that the court considered the $5000 SIR twice.
Indeed, when the court considered the gross fee award of $62,065, it included
A-3446-18T3 27 the $57,065 fees requested by Cutolo plus the SIR. After considering Cutolo's
invoices and reducing the fees by $12,122, the court halved the $49,943 lodestar
to the $24,971.50 reduced fee award and then added $2278.31 in costs, along
with, again, the $5000 SIR. On remand, the SIR should be considered only once
when computing the appropriate fee award.
Second, the Cutolo invoices included a nominal fee for the services of a
paraprofessional. The certification supporting these expenses, however, failed
to include the required explanation as to the paralegal's "qualifications, and the
attorney's billing rate for paraprofessional services to clients generally," as
required by Rule 4:42-9(b). Instead, counsel merely attested that the paralegal
was formerly associated with the firm and billed at a $110 hourly rate. To the
extent the Association seeks reimbursement of any paraprofessional's fees, an
appropriate certification should be submitted to the trial court on remand.
IV.
In sum, we affirm the trial court's November 28, 2018 order granting
summary judgment to defendants and dismissing plaintiff's complaint. We
vacate the trial court's March 26, 2019 order and remand for the court to address
the two limited issues addressed in our opinion associated with its fee award.
A-3446-18T3 28 To the extent we have not addressed any of the parties' arguments it is
because we find them without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part and remanded. We do not retain
jurisdiction.
A-3446-18T3 29