JEROME MCCANN VS. WHITEHALL MANOR CONDOMINIUM ASSOCIATION, INC. (L-1581-16, SOMERSET COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 29, 2018
• Docket: A-3338-16T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-3338-16T2

JEROME MCCANN, MARY ANN VASTINO, and ERIN MCGOWAN,

Plaintiffs-Respondents,

v.

WHITEHALL MANOR CONDOMINIUM ASSOCIATION, INC.,

Defendant-Appellant. ___________________________________

Submitted June 5, 2018 – Decided June 29, 2018

Before Judges Mayer and Mitterhoff.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1581-16.

Law Offices of Jeffrey S. Mandel, LLC, attorneys for appellant (Jeffrey S. Mandel, of counsel and on the briefs).

Anthony X. Arturi, attorney for respondents.

PER CURIAM

Defendant Whitehall Manor Condominium Association, Inc. (the

Association) appeals from a March 3, 2017 order entering judgment in favor of plaintiffs Jerome McCann, Mary Ann Vastino, and Erin

McGowan1 (former board members). We vacate the order and remand

to the trial court for further proceedings.

A detailed factual recitation is not required as our

determination is premised solely upon procedural grounds.

Briefly, the Association filed suit against the former board

members seeking access to an e-mail account used for Association

business. Subsequent to the resolution of the Association's

lawsuit, the former board members filed a complaint seeking

attorney's fees. The former board members alleged that, pursuant

to the Association's by-laws, they were entitled to

indemnification for legal fees incurred in defending against the

Association's lawsuit.

The former board members filed an order to show cause (OTSC)

in conjunction with their complaint. The December 16, 2016 OTSC,

as signed by the judge, indicated that the matter was to "proceed

as a summary proceeding pursuant to Rule 4:67-1(b)" and that the

Association must show cause "why an [o]rder should not be entered

converting this matter to a summary proceeding pursuant to R.

1 Plaintiffs were elected to serve as members of the Association's governing board and decided not to seek re-election.

2 A-3338-16T2 4:67-1(b)" on the scheduled return date.2 On January 30, 2017,

the Association filed opposition to the OTSC, stating the matter

required discovery and the Association did not consent to

proceeding summarily.

On the OTSC return date, the judge heard oral argument. The

former board members requested the case proceed summarily, arguing

that discovery and testimony were not required to adjudicate their

claim. The Association responded that it required discovery and

that the matter should not be decided before the Association had

the opportunity to set forth its affirmative defenses and

counterclaims.

On February 8, 2017, the judge decided the merits of the

complaint, finding the former board members were entitled to

indemnification. After the judge rendered her decision, the

Association's counsel stated:

I was unaware that the [c]ourt was going to be considering the underlying relief at the hearing today . . . . [T]he Association's understanding was that a trial date would be set today, the Association would have an opportunity to respond to the pleadings rather than deciding the underlying relief prior to the Association even having filed its responsive pleading.

2 The OTSC was adjourned to February 8, 2017, at the request of counsel for the Association.

3 A-3338-16T2 The judge reserved decision only as to the amount of fees to

be awarded to the former board members, requesting the submission

of an affidavit of services. On March 3, 2017, the judge entered

an order awarding the former board members attorney's fees in the

amount of $31,108.39.

We review legal determinations based on an interpretation

of the court rules de novo. In re Referendum to Repeal Ordinance

2354-12 of West Orange, 223 N.J. 589, 596 (2015). A trial court's

interpretation of a court rule is not entitled to any special

deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995).

Rule 4:67-1(b) is applicable to

actions in the Superior Court other than matrimonial actions and actions in which unliquidated monetary damages are sought, provided it appears to the court, on motion made pursuant to R. 1:6-3 and on notice to the other parties to the action not in default, that it is likely that the matter may be completely disposed of in a summary manner.

[R. 4:67-1(b).]

The summary action rule is designed

to accomplish the salutary purpose of swiftly and effectively disposing of matters which lend themselves to summary treatment while at the same time giving the defendant an opportunity to be heard at the time plaintiff makes his [or her] application on the question of whether or not summary disposition is appropriate.

4 A-3338-16T2 [Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:67-1 (2018).]

"Th[e] procedural requirements [of Rule 4:67-1(b)] serve

important objectives: to permit the presentation of a factual

record and legal arguments to the court, and to ensure that the

parties anticipate and address the standard for summary

disposition before the court decides whether to grant that relief."

Grabowsky v. Twp. of Montclair, 221 N.J. 536, 550 (2015). Summary

disposition is only appropriate "when the parties understand and

consent to a summary disposition of their disputes." Waste Mgmt.

of N.J., Inc. v. Union Cty. Utils. Auth., 399 N.J. Super. 508,

518-19 (App. Div. 2008) (reversing a final judgment entered on the

return date of an order to show cause, finding no "clear and

unambiguous statement from the judge [or] unequivocal consent of

the parties to a final resolution.")

Rule 4:67-1(b) requires that a party file a motion to proceed

in a summary manner. Alternatively, consistent with the case law,

both parties may consent to summary disposition. See Grabowsky,

221 N.J. at 547. Here, there was no motion filed by the former

board members to proceed summarily, and the Association did not

consent to summary disposition. Indeed, both counsel believed

that the issue to be decided on the return date of the OTSC was

whether the matter would proceed summarily. The Association's

5 A-3338-16T2 counsel lodged his objection to proceeding summarily and

unequivocally stated that the Association did not consent to

summary disposition of the action. As the Association did not

consent to proceeding summarily and the former board members failed

to file a motion to proceed in such a manner, we are constrained

to vacate the March 3, 2017 order and remand the matter to the

trial court. On remand, the trial court should permit the parties

to argue why the matter should, or should not, proceed summarily,

and allow the Association to file an answer, affirmative defenses,

and counterclaim, and engage in any discovery that may be necessary

to adjudicate the matter on the merits.

The Association raises other issues on appeal. We need not

decide those issues based on our decision to vacate and remand the

matter to the trial court. On remand, we do not suggest the

outcome of the matter on the merits.

Vacated and remanded. We do not retain jurisdiction.

6 A-3338-16T2