NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1175-22
KEVIN WINE, on behalf of himself and all others similarly situated,
Plaintiff-Appellant,
v.
SOCIETY HILL AT PISCATAWAY CONDOMINIUM ASSOCIATION, INC., and BOARD OF TRUSTEES OF SOCIETY HILL AT PISCATAWAY CONDOMINIUM ASSOCIATION, INC.,
Defendants-Respondents. ______________________________
Submitted March 5, 2024 – Decided March 22, 2024
Before Judges Mayer and Paganelli.
On appeal from the Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-000123-22.
Kevin Wine, appellant pro se. Kirmser, Lamastra, Cunningham & Skinner, attorneys for respondents (Timothy P. Malacrida, of counsel and on the brief).
PER CURIAM
Plaintiff Kevin Wine appeals from a December 1, 2022 order denying his
request for injunctive relief and dismissing his complaint against defendants
Society Hill at Piscataway Condominium Association, Inc. (Association), and
the Board of Trustees of Society Hill at Piscataway Condominium Association,
Inc. (Board). We affirm.
Plaintiff owns a condominium unit in Society Hill at Piscataway. The
Association governs the condominium complex where plaintiff resides . All 545
owners of units in the condominium complex are members of the Association
(unit owners). The Association is governed by the Board, which is comprised
of seven elected individuals (Board members).
The genesis for plaintiff's claims against defendants stemmed from the
Association contracting with a company to remediate contaminated soil in the
common area of the condominium complex. As part of its decision to remediate
the contamination, the Board approved a special assessment to be paid by each
unit owner to cover the cost of the remediation. The special assessment initially
A-1175-22 2 required each unit owner to pay $2,000. Plaintiff, a former Board member,
objected to the special assessment.
Because he believed the special assessment was excessive, plaintiff
circulated two petitions among the unit owners. Petition One sought a special
election to remove the six Board members responsible for the remediation
contract and special assessment fee. Petition Two demanded a special meeting
to amend the Association's by-laws. In his proposed amendment to the by-laws,
plaintiff sought to permit electronic voting at the Association's annual meeting
and other election security measures.
Plaintiff sent the following announcement to all unit owners:
At the June 27, 2022 Special Meeting, the [Board] approved a surprise $2,000 special assessment to all unit owners. As insane and out-of-touch as this might be, they have the authority to do it, and they are following through on their plans. If you don't pay by November, they will charge you 6% interest, make you delinquent (can't vote[]) and send you to collections. Watch out–they are allowed to charge collection attorney's fees back to your account[.]
....
We urgently need 278 owners to sign and return the petitions on the reverse of this packet, to force the Board to call a Special Election. . . .
A-1175-22 3 At the same time, this is an opportunity to finally force the Board to amend the Association's By-Laws to allow [unit owners] to vote electronically, and to create specific rules the Board must follow to make sure our elections are run honestly. The second petition orders the [B]oard to call a Special Meeting to vote on the attached proposed By-Law amendments.
Petition One stated:
As per section 5.26-8-11(d) of the Planned Real Estate Development Full Disclosure Act ("PREDFDA" for short), which provides an alternative method to "remove" trustees from the board, and which states:
Association members may initiate removal of a board member who was elected by the unit owners by submitting to the board a petition signed by [fifty-one] percent of association members for removal of that board member.
1. A special election of the association membership shall be held within [sixty] days of receipt of the petition.
2. When the annual meeting of the association membership is scheduled to occur within [sixty] days of the submission of the petition, then the election shall be held at the annual meeting.
I am petitioning the [Board] to call a Special Election of the Association, for the sole purpose of voting to remove [Board Members] . . . . I am also asking the Board to conduct the Special Election using the services of an outside, independent, unaffiliated third- party. (Note: All owners can sign this petition, even if currently not in good standing).
A-1175-22 4 Petition Two stated:
As per section 3.04 of the By-Laws of the [Association], I am petitioning the [Board] to call a Special Meeting of the Members, for the sole purpose of voting to approve or reject the attached proposed amendment to the By-Laws, to provide the option to vote electronically and receive Association notices electronically and to implement procedures to ensure the integrity of all elections in Society Hill at Piscataway.
Following plaintiff's circulation of the petitions, the Board sent an August
29, 2022 letter to all unit owners, requesting candidates for nomination to the
Board be submitted by September 19, and scheduling the Board's annual meeting
for October 24, 2022. As of September 7, 2022, a total of 287 unit owners had
signed Petition One and a total of 279 unit owners had signed Petition Two.1
Copies of the signed petitions, a list of the unit owners signing the petitions, the
proposed by-laws amendment, and plaintiff's cover letter were sent to the
Association.
After September 8, 2022, the Board received an additional eight signatures
from unit owners on Petition One and Petition Two. Thus, plaintiff contended
1 Based on the total 545 unit owners in the Association, Petition One required 278 unit owner signatures to satisfy N.J.A.C. 5:26-8.11(d). Under the Association's by-laws, Petition Two required signatures from 182 unit owners to hold a special meeting. A-1175-22 5 295 unit owners signed Petition One and 287 unit owners signed Petition Two.
According to plaintiff, the number of unit owners signing the petitions satisfied
the requirements for the Association to consider both petitions.
Plaintiff sent a September 21, 2022 letter to the Board, demanding it act
on both petitions. That same day, the Board canceled its regularly scheduled
September 22, 2022 meeting. On September 22, 2022, the Board announced it
would hold a special meeting on September 29.
On September 23, the Board announced "[a] group of appointed judges
[would] be chosen to inspect the validity of [plaintiff's] petitions." During the
September 29, 2022 special meeting, the Board voted unanimously to appoint
five individual unit owners as petition inspectors.
According to plaintiff, at least three of the designated petition inspectors
were hostile toward him and opposed to the relief sought in his petitions. At the
same special meeting, the Board unanimously approved a motion to reduce the
special assessment fee to $1,200.
On October 3, 2022, plaintiff sent a second demand letter to the Board,
seeking action on his petitions. Because defendants failed to respond to his
petitions, on October 13, 2022, plaintiff filed a complaint seeking declaratory
and injunctive relief, and an order to show cause requesting temporary restraints.
A-1175-22 6 In his complaint, plaintiff alleged Petition One received the required number of
signatures under N.J.A.C. 5:26-8.11(d), and Petition Two received the required
number of signatures under § 3.04 of the Association's by-laws. The judge
denied plaintiff's request for temporary restraints but scheduled a hearing on
plaintiff's order to show cause for December 1, 2022.
The day after plaintiff filed his complaint, the Board sent an email to all
unit owners, providing an update on the Association's internal review of the
signatures supporting Petition One. According to the email, Petition One
received 288 signatures. However, forty-nine signatories had not paid the
$1,200 special assessment. Further, nineteen additional signatures were
disqualified as duplicates, withdrawals, or submitted by individuals who were
no longer unit owners. Thus, the Board declined to consider the relief requested
in Petition One because 278 signatures were required and only 220 signatures
were determined to be valid.
In a November 10, 2022 letter, the Board also advised the proposed
amendment to the by-laws in Petition Two contained vague and ambiguous
language contrary to PREDFDA. The lack of clarity in the proposed amendment
precluded the Board from acting on Petition Two. The Board suggested plaintiff
A-1175-22 7 modify the language of his proposed amendment to the by-laws in order for the
Board to consider Petition Two.
After being served with plaintiff's complaint and order to show cause,
defendants filed opposition to the order to show cause. Additionally, defendants
filed a motion to dismiss the complaint under Rule 4:6-2(e).
On December 1, 2022, the return date of plaintiff's order to show cause,
the judge heard the parties' arguments. Defense counsel explained the bases for
the Board's disqualification of certain votes submitted on Petition One. After
removing the disqualified votes, plaintiff lacked the number of signatures
required under the regulations governing condominium associations to require
the Board to act on Petition One.
In addressing Petition Two, defense counsel agreed plaintiff had more
than one-third the required number of signatures. However, defense counsel
explained: "[T]he issue is the substance of that petition and its ambiguity. Its
terms are not understandable in some areas. They are also inconsistent with the
[b]y-[l]aws . . . ." Counsel then enumerated certain alleged ambiguities and
inconsistencies in the language of the proposed amendment.
Defense counsel further told the judge the Association requested plaintiff
"fix [the language]" and "come back to [the Board] with the appropriate
A-1175-22 8 support." Additionally, counsel argued it would be improper for the Association
to change the proposed amendment language and then request unit owners vote
because "the [B]oard can't unilaterally" act. Defense counsel also advised the
judge the Board would be placed in "an untenable position" if it corrected the
language for the proposed amendment to the by-laws, "and that's why it was sent
back to [plaintiff] to correct and modify and get the appropriate support for it."
After hearing the parties' legal arguments, the judge rendered an oral
decision. Based on her findings, the judge denied plaintiff's request for
injunctive relief and granted defendants' motion to dismiss "with respect to both
petitions" pursuant to Rule 4:6-2(e).
In rendering her decision to dismiss plaintiff's complaint, the judge
considered the regulations governing condominium community members' voting
rights under N.J.A.C. 5:26-8 and N.J.A.C. 5:26-8.8 and § 3.04 of the
Association's by-laws.
Regarding Petition One, the judge found "there [was] evidence
supplied . . . by defendant[s,] making it clear that [forty-nine] of [Petition One's]
signatures . . . were from . . . members whose accounts were delinquent at the
time of the petition, [and] pursuant to the express terms of the by-laws . . . those
members would be prohibited from voting or submitting a petition until those
A-1175-22 9 accounts [were] current." Thus, the judge concluded Petition One failed to meet
the voting threshold because Petition One did not receive the required 278 valid
unit owner signatures.
Regarding Petition Two, the judge noted that if the amendment was
modified, there would be a need to "start again at the very beginning" and
"recirculate [the] petition" which would force plaintiff to begin "at the starting
line." The judge explained: "I don't know legally that I . . . or the [A]ssociation
would have the ability to just carry over those original signatories to the . . .
amended document[.] . . . [A]lthough [the theme] may be the same[,] . . . its
language is going to change and then those people have a right to [agree] or
[disagree]" with the modified language.
Additionally, the judge determined the language in the proposed
amendment to the by-laws lacked the required clarity and specificity under
N.J.A.C. 5:26-8.13(f)(2). Highlighting the deficiencies noted by defense
counsel, the judge found the language in the proposed amendment "in its present
version [was] unworkable."
On appeal, plaintiff contends the judge erred in dismissing his complaint
because Petition One had enough votes to meet the regulatory requirement
applicable to condominium associations, notwithstanding the fact that some unit
A-1175-22 10 owners were not in "good standing" due to nonpayment or late payment of
condominium fees. He also argues that a unit owner's vote could not be
discounted if subsequently withdrawn by the unit owner. Plaintiff further
contends the Association had the authority to unilaterally correct the language
in his proposed amendment to the Association's by-laws, and the judge erred in
finding the Association could not do so. We reject these arguments.
I.
We recite the well-settled case law governing our review of motions to
dismiss. "Rule 4:6-2(e) motions to dismiss for failure to state a claim upon
which relief can be granted are reviewed de novo." Baskin v. P.C. Richard &
Son, LLC, 246 N.J. 157, 171 (2021) (citing Dimitrakopoulos v. Borrus, Goldin,
Foley, Vignuolo, Hyman & Stahl, P.C., 237 N.J. 91, 108 (2019)). In considering
a motion under Rule 4:6-2(e), "[a] reviewing court must examine 'the legal
sufficiency of the facts alleged on the face of the complaint,' giving the plaintiff
the benefit of 'every reasonable inference of fact.'" Baskin, 246 N.J. at 171
(quoting Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746
(1989)). The test for determining the adequacy of a pleading is "whether a cause
of action is 'suggested' by the facts." Printing Mart, 116 N.J. at 746 (quoting
Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988)). However, we
A-1175-22 11 review a trial court's interpretation of laws, statutes, or rules de novo.
Kocanowski v. Twp. of Bridgewater, 237 N.J. 3, 9 (2019).
Plaintiff first argues the judge erred in granting defendants' motion to
dismiss. We disagree.
Under Rule 4:6-2(e), a complaint will be dismissed if it fails to state a
claim upon which relief can be granted. The standard governing the analysis of
a motion to dismiss pursuant to Rule 4:6-2(e) requires the complaint be
examined "in depth and with liberality to ascertain whether the fundament of a
cause of action may be gleaned even from an obscure statement of claim,
opportunity being given to amend if necessary." Printing Mart, 116 N.J. at 746
(quoting Di Cristofaro v. Laurel Grove Mem'l Park, 43 N.J. Super. 244, 252
(App. Div. 1957)).
In evaluating a motion to dismiss, the court is not concerned with the
plaintiff's ability to prove the allegations; rather, "a complaint is entitled to
liberal reading in determining its adequacy" and must merely "allege sufficient
facts as give rise to a cause of action[.]" Pressler & Verniero, Current N.J. Court
Rules, cmt. 1 on R. 4:5-2 (2024); see also Printing Mart, 116 N.J. at 746.
"[P]laintiffs are entitled to every reasonable inference of fact," and examination
of the complaint "should be one that is at once painstaking and undertaken with
A-1175-22 12 a generous and hospitable approach." Id. at 746. While "the motion should be
granted if even a generous reading of the allegations does not reveal a legal basis
for recovery," Edwards v. Prudential Prop. & Cas. Co., 357 N.J. Super. 196, 202
(App. Div. 2003), courts should grant a motion to dismiss with caution and in
"the rarest [of] instances." Ballinger v. Del. River Port. Auth., 311 N.J. Super.
317, 322 (App. Div. 1998) (quoting Printing Mart, 116 N.J. at 772).
Here, we are satisfied defendants met their burden on the motion to
dismiss because plaintiff was unable to sustain his claims against defendants
related to Petition One and Petition Two.
Plaintiff contends the judge erred in finding Petition One lacked the
requisite number of unit owner signatures. We reject this argument.
"The object of statutory interpretation is to effectuate the intent of the
Legislature, as evidenced by the plain language of the statute, its legislative
history and underlying policy, and concepts of reasonableness." State v.
Courtney, 243 N.J. 77, 85 (2020). We examine "the words of the statute and
ascribe[] to them their ordinary meaning," reading "disputed language 'in
context with related provisions so as to give sense to the legislation as a whole.'"
Ryan v. Renny, 203 N.J. 37, 54 (2010) (quoting DiProspero v. Penn, 183 N.J.
477, 492 (2005)). "If the statute is clear on its face, the analysis is complete,
A-1175-22 13 and it must be enforced according to its terms." Pfannenstein v. Surrey, 475
N.J. Super. 83, 95 (App. Div. 2023). "If, however, a literal interpretation of a
provision would lead to an absurd result or would be inconsistent with the
statute's overall purpose, 'that interpretation should be rejected' and 'the spirit of
the law should control.'" Ibid. (quoting Hubbard v. Reed, 168 N.J. 387, 392-93
(2001)).
N.J.A.C. 5:26-8.8(a) defines association membership as follows:
(a) Upon acceptance of a deed to the unit, each owner shall be an association member for so long as he or she holds title to the unit.
Under N.J.A.C. 5:26-8.8(c), an association member is deemed to be in
good standing:
(c) . . . with respect to eligibility to vote in executive board elections, vote to amend bylaws, and nominate or be a candidate for a position on the executive board when the association member:
1. Is current in the payment of common expenses, late fees, interest on unpaid assessments, legal fees, or other charges lawfully assessed;
2. Is in compliance with a judg[]ment for common expenses, late fees, interest on unpaid assessments, legal fees, or other charges lawfully assessed;
A-1175-22 14 3. Is in full compliance with a settlement agreement with respect to the payments of assessments, legal fees, or other charges lawfully assessed; or
4. Has requested or is participating in Alternative Dispute Resolution (ADR) or in a court proceeding for a dispute over a matter that affects the owner's good standing.
Additionally, § 3.08 of the Association's by-laws states:
A Member shall be deemed to be in "good standing" and "entitled to vote" at any annual or special meeting of the Association if, and only if, he has fully paid all assessments or fines made or levied against him and his unit by the [Board] as hereinafter provided, together with all interest, costs, attorney's fees, penalties and other expenses, if any, properly chargeable to him and against his unit, at least three calendar days prior to the date fixed for such annual or special meeting.
Simply stated, under the regulations governing condominium associations
and the Association's by-laws, to be considered a member in good standing a
unit owner must be current in the payment of all lawful charges assessed by the
condominium. The regulation states a member must be in good standing to vote
in board elections, amend by-laws, and nominate candidates for a board election.
The Association's by-laws explicitly provide a member must be in good standing
to be "entitled to vote."
A-1175-22 15 Plaintiff's argument that a unit owner who is delinquent in the payment of
all condominium fees may petition to initiate removal of Board members lacks
legal support. If a unit owner is required to be in good standing to vote regarding
a Board vacancy, logically a unit owner must be in good standing to vote to
remove a Board member.
Further, there is a distinction between a unit owner's delinquency in the
payment of special assessment fees and a delinquency in the payment of
condominium fees. The Board determined a unit owner is delinquent if the unit
owner failed to pay condominium fees. The special assessment fee imposed by
the Board required each unit owner to tender payment by the end of October
2022. Thus, it is likely that many unit owners were not yet required to pay the
special assessment fee when plaintiff filed his complaint on October 13, 2022,
and, therefore, would neither be delinquent in that payment nor disqualified
from voting based on such delinquency. However, even without considering
unit owners who had not yet paid the special assessment fee, there were multiple
unit owners who signed the petitions but failed to pay their condominium fees.
Thus, the judge found the Board properly concluded the unit owners who were
delinquent in the payment of condominium fees would not be counted as part of
the total signatures required for the Board to consider Petition One.
A-1175-22 16 Nothing in the Association's by-laws or the regulations governing
condominium associations preclude a unit owner from withdrawing their
petition vote at any time. Plaintiff's reliance on Mocco v. Picone, 203 N.J.
Super. 443 (App. Div. 1985) is misplaced because that case dealt with a recall
petition for township commissioners in a Walsh Act community. 203 N.J. Super
at 445. In Mocco, we held the withdrawal of signatures on recall petitions was
limited by statute to the period prior to the filing of recall petitions. Id. at 447-
48. In this case, we are dealing with a condominium association and there is no
applicable statutory recall provision.
For these reasons, we are satisfied the judge properly found plaintiff did
not attain the required number of unit owner signatures to meet the number of
votes necessary for the Board to consider Petition One.
Plaintiff also contends the judge erred in finding his proposed amendment
to the Association's by-laws was vague and ambiguous. We note plaintiff
received the required number of unit owner votes to have the Board consider the
issue raised in Petition Two. However, despite receiving the required number
of unit owner votes, Petition Two's fatal defect stemmed from the imprecise and
unclear wording of the language in plaintiff's proposed amendment.
A-1175-22 17 It is well established that a condominium association's authority "is found
in the statute governing such associations, and the association's by -laws."
Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994).
To amend an association's by-laws, the governing regulation requires "[t]he
amendment . . . be drafted in clear language and in a manner that is consistent
with the association's bylaws and applicable laws." N.J.A.C. 5:26-8.13(f)(2).
Here, the deficiencies in the language proposed by plaintiff for amending
the Association's by-laws were substantive. A plain reading of the amendment's
proposed language highlights the various vague, undefined, and ambiguous
terms. Additionally, plaintiff's proposed amendment was inconsistent with the
Association's existing by-laws.
For example, plaintiff's proposed amendment required "postal carriers to
deposit any mail addressed to [the Association's offices] directly in the election
mailbox." However, plaintiff never stated postal carriers would be legally
allowed to do so. Further, the proposed amendment stated the Board "may
utilize a neutral third party for the collection of member ballots and proxy
forms"; however, nowhere did the proposed amendment explain the method to
select that third party. Nor were various terms, including the term "election
mailbox," defined with the required clarity or specificity.
A-1175-22 18 Here, the judge found it would be improper and pose a potential conflict
if the Board unilaterally modified and revised the language in plaintiff's
proposed amendment to the Association's by-laws. The judge correctly
concluded it would be improper for the trial court to "cherry pick" from the
proposed amendment's language "to make it workable" in order to comply with
the regulations governing condominium associations.
The judge acknowledged plaintiff's concerns about costs and timing
associated with "recirculating" the proposed amendment to the Association's by-
laws. However, we agree with the judge's conclusion that she lacked the
authority to "carry over th[e] original signatories" in considering any revised
version of the proposed amendment to the by-laws. The judge aptly determined
any revised language for the proposed amendment to the Association's by-laws
required plaintiff to start the process anew despite the lost time and increased
expense. We also agree the judge could not compel defendants to revise or
modify plaintiff's proposed amendment because it would be an improper for the
Board to act unilaterally after the unit owners submitted votes on the original
version of Petition Two. More importantly, we agree with the judge's
determination that plaintiff's ambiguous and vague language in the proposed
A-1175-22 19 amendment to the Association's by-laws failed to comport with the requirements
of N.J.A.C. 5:26-8.13(f)(2).
II.
We next consider plaintiff's argument the judge erred in denying his
requested injunctive relief. We reject this argument.
A trial judge has discretion whether to grant a preliminary injunction, and
a judge's decision will only be overturned for an abuse of that discretion.
Horizon Health Ctr. v. Felicissimo, 135 N.J. 126, 137 (1994); Rinaldo v. RLR
Inv., LLC, 387 N.J. Super. 387, 395 (App. Div. 2006). "An abuse of discretion
occurs when a decision was 'made without a rational explanation, inexplicably
departed from established policies, or rested on an impermissible basis." Savage
v. Twp. of Neptune, 472 N.J. Super. 291, 313 (App. Div. 2022) (quoting Wear
v. Selective Ins. Co., 455 N.J. Super. 440, 459 (App. Div. 2018)).
Injunctive relief is an extraordinary equitable remedy that should be
entered by a trial court after exercising great care and only if the movant
demonstrates, by clear and convincing evidence, entitlement to the requested
relief. Dolan v. DeCapua, 16 N.J. 599, 614 (1954). The seminal case for
granting preliminary injunctive relief is Crowe v. De Gioia, 90 N.J. 126 (1982).
Under Crowe, the party seeking injunctive relief bears the burden of
A-1175-22 20 demonstrating: (1) irreparable harm is likely if the relief is denied; (2) the
applicable underlying law is well settled; (3) the material facts are undisputed
and there exists a reasonable probability of ultimate success on the merits of the
claim; and (4) the balance of the hardship to the parties favors the issuance of
the requested relief. Id. at 132-34.
"[A] preliminary injunction should not be entered except when necessary
to prevent substantial, immediate and irreparable harm." Subcarrier Commc'ns,
Inc. v. Day, 299 N.J. Super. 634, 638 (App. Div. 1997). "Harm is generally
considered irreparable in equity if it cannot be redressed adequately by monetary
damages," which "may be inadequate [due to] the nature of the injury or of the
right affected." Crowe, 90 N.J. at 132-33. Moreover, to prevail on an
application for temporary relief, the movant "must make a preliminary showing
of a reasonable probability of ultimate success on the merits," although "mere
doubt as to the validity of the claim is not an adequate basis for refusing to
maintain the status quo." Id. at 133.
Plaintiff failed to show a likelihood of success on the merits with respect
to Petition One. The judge concluded the Board properly found unit owners
who were delinquent in the payment of condominium fees could not be counted
A-1175-22 21 as valid votes for satisfying the required number of votes for the Board's
consideration of Petition One.
We are satisfied unit owners who had outstanding condominium fees were
ineligible to cast a vote in favor of Petition One. Additionally, nothing in the
regulation or case law precluded unit owners from withdrawing their vote at any
time. After discarding votes from delinquent unit owners and unit owners who
elected to withdraw their vote on Petition One, plaintiff lacked the required
number of votes for the Board to consider his petition. Without the required
number of valid unit owner votes, plaintiff failed to present a reasonable
probability of ultimate success on the merits with respect to the requested relief
in Petition One. Nor did plaintiff demonstrate the balancing of the hardships to
the parties favored injunctive relief.
Affirmed.
A-1175-22 22