NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0407-19T1
LAURA RUCCOLO,
Plaintiff-Appellant,
v.
ARDSLEY WEST COMMUNITY ASSOCIATION, INC.,
Defendant-Respondent. _______________________________
Submitted December 9, 2020 – Decided January 11, 2021
Before Judges Whipple, Rose and Firko.
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. DC-000228- 17.
Capehart & Scatchard, attorneys for appellant (Alan Paul Fox, on the briefs).
Cutolo Barros LLC, attorneys for respondent (Karyn Ann Branco, of counsel and on the brief; Jason N. Sena, on the brief).
PER CURIAM This matter involves a longstanding dispute between plaintiff Laura
Ruccolo and defendant, Ardsley West Community Association, Inc., the
homeowner's association (HOA) for her residential community. 1 After engaging
in litigation, the parties entered into a consent order on May 19, 2017, where in
the HOA agreed plaintiff's unit was substantially in compliance with HOA rules
and enjoined the HOA from sending her any communication suggesting she
violated the governing documents. Plaintiff appeals the August 19, 2019 Law
Division order denying her motion to enforce litigant's rights. We affirm. 2
I.
The following facts are derived from the motion record. In June 1996,
plaintiff purchased a townhome in defendant's development located in Marlton.
At the time of closing of title, plaintiff was provided with defendant's by-laws
and the Declaration of Covenants, Conditions and Restrictions (CC&R). The
exact origin of the dispute between the parties is not part of the record; however,
plaintiff contended she had no issues until the current board members took
control of the community. Between 2010 and 2016, defendant claimed plaintiff
1 We refer to defendant and HOA interchangeably throughout this opinion. 2 Defendant filed a cross-motion to vacate the May 19, 2017 consent order, which was denied by the motion judge. This appeal is limited to the denial of plaintiff's motion to enforce litigant's rights. A-0407-19T1 2 was in violation of its by-laws and CC&R for failing to power wash the rear of
her townhome to remove algae and moss and for not sufficiently manicuring the
mulch beds on her property.
Plaintiff's backyard has a six-foot-high fence and there are no homes
situated behind her townhome. She asserted because failing to power wash does
"not present any public health or safety issue, did not impact property values in
the AWTD [(Ardsley West Townhouse Development)] or the aesthetics of the
community," that there was no legitimate purpose for defendant to compel her
to do so.
According to plaintiff, there were no rules in effect within the governing
documents covering the matters defendant complained of. During the subject
time frame, plaintiff claimed defendant approved a homeowner's manual, which
included architectural guidelines requiring homeowners to maintain their
properties, such as power washing and weeding, at defendant's discretion. In
response, defendant contended that whether the rules were in place or not, the
subsequent approval of the homeowner's manual by a quorum of the board
sufficiently remedied any potential earlier procedural omissions.
On January 11, 2017, plaintiff filed a complaint in the Law Division
challenging defendant's actions (the 2017 litigation). In her complaint, plaintiff
A-0407-19T1 3 averred that defendant had exceeded its authority in adopting certain rules,
regulations, and restrictions in violation of the community's governing
documents. Plaintiff alleged the HOA had gone "rogue," and failed to conduct
open meetings with the owners. In addition, plaintiff asserted the HOA created
arbitrary and capricious rules and regulations giving defendant "unfettered
unilateral power" to declare a violation without notice to plaintiff.
The parties resolved their differences by entry of the May 19, 2017
consent order. In pertinent part, the consent order restrained defendant "from
sending [p]laintiff any letter, email or any other communication claiming
[p]laintiff is in violation of [d]efendant's [CC&R], By-Laws, Architectural
Guidelines and/or Rules and Regulations [(governing documents)] . . . ."
(emphasis added). At the time of execution, the consent order noted that
plaintiff's townhome was in compliance with some, but not all, existing HOA
guidelines.
Potential areas of concern, such as structural repairs to the townhome,
driveway, and fences were excluded from the scope of the consent order.
Paragraph four of the consent order reserved the right for defendant to move to
amend or vacate the consent order upon a showing defendant revised its
governing documents to comply with both New Jersey statutory law and the
A-0407-19T1 4 "reasonableness" factors set forth in Davidson Bros. Inc. v. D. Katz & Sons, 121
N.J. 196 (1990).
In the fall of 2018, plaintiff alleged that defendant subsequently engaged
in further improper conduct and failed to hold proper elections. Looking to
avoid litigation, plaintiff confronted defendant about its alleged miscreant
actions. In response, defendant threatened to sue plaintiff for attorneys' fees
under the governing documents in the event she challenged defendant with
formal action. Defendant's counsel alleged in a November 20, 2018 letter
addressed to plaintiff personally that plaintiff attempted to leverage her position
as vice-chair of the commercial litigation department at her law firm in order to
dissuade defendant's counsel from continuing to litigate the matter.
Thereafter, on December 14, 2018, plaintiff filed another complaint
against defendant and its board members (the 2018 litigation) premised upon her
dissatisfaction with recent HOA decisions and alleged acts or omissions
predating the 2017 litigation. In response, defendant filed an answer and
counterclaim against plaintiff.
On March 5, 2019, plaintiff simultaneously filed a motion to enforce
litigant's rights in the 2017 litigation and a motion to dismiss defendant's
counterclaim in the 2018 litigation. Plaintiff claimed defendant's counterclaim
A-0407-19T1 5 was "vengeful" and that defendant was "intent on seeking revenge." On May
21, 2019, the judge denied plaintiff's motion to enforce litigant's rights in the
2017 litigation as moot, granted plaintiff's motion to dismiss defendant's
counterclaim in the 2018 litigation, and permitted plaintiff leave to file and serve
an amended complaint in the 2018 litigation.
On May 28, 2019, plaintiff filed a first amended complaint in the 2018
litigation. Defendant again chose to file a counterclaim and sought a declaratory
judgment that the HOA was allowed to promulgate rules pursuant to the
community's governing documents and all townhome owners, including
plaintiff, are required to abide by their terms.
On June 24, 2019, plaintiff filed a second motion to enforce litigant's
rights relative to the 2017 litigation on the grounds that defendant's counterclaim
in the 2018 litigation constituted a "communication" in violation of the consent
order. She also asserted the second count of the counterclaim "is equivalent to
a SLAPP3 suit" and meant to deter plaintiff from exercising her legal rights.
Plaintiff did not dispute defendant's right to file an answer to the complaint.
Further, plaintiff asserted that defending the complaint was insufficient for
3 SLAPP is an acronym for, "Strategic Lawsuit Against Public Participation." See LoBiondo v. Schwartz, 323 N.J. Super. 391, 418 (App. Div. 1999). A-0407-19T1 6 defendant "who [wa]s intent on seeking revenge against plaintiff for daring to
question their [sic] actions," and the counterclaim was "designed to intimidate
and harass" her and "chill her from exercising her legal rights."
In its opposition to plaintiff's motion to enforce litigant's rights, defendant
denied its counterclaim was a "communication," the counterclaim was not
prohibited by the consent order and was required to be pled under the entire
controversy doctrine. Defendant also filed a cross-motion to vacate the 2017
consent order.
On August 16, 2019, the judge heard oral arguments on the motion and
cross-motion. On August 19, 2019, in a comprehensive, thorough statement of
reasons, the judge denied both motions. In denying plaintiff's motion to enforce
litigant's rights, the judge determined that the consent order did not bar the filing
of the counterclaim in the 2018 litigation because it is not a "communication"
as defined by the consent order and "does not fall within the scope of the
[c]onsent [o]rder." The judge explained:
Our courts have made clear that "[a] consent order is, in essence, an agreement of the parties that has been approved by the court." Hurwitz v. AHS Hosp. Corp., 438 N.J. Super. 269, 292 (App. Div. 2014). As such, a consent order operates as a contract between the parties. See ibid. Therefore, in construing a consent order, a court "examine[s] the plain language of the contract and the parties' intent, as evidenced by the contract's
A-0407-19T1 7 purpose and surrounding circumstances." Ibid. (quoting Highland Lakes Country & Cmty. Ass'n v. Franzino, 186 N.J. 99, 115 (2006)). "In doing so, 'the words of an agreement are given their "ordinary" meaning.'" Woytas v. Greenwood Tree Experts, Inc., 237 N.J. 501, 512 (2019) (quoting Flanigan v. Munson, 175 N.J. 597, 606 (2003)). "[I]f the contract into which the parties have entered is clear, then it must be enforced as written." Serico v. Rothberg, 234 N.J. 168, 178 (2018) (alternation in original) (quoting In re [County] of [Atlantic], 230 N.J. 237, 254 (2017)).
Paragraph 1 of the [c]onsent [o]rder provides:
The [d]efendant Ardsley West Community Association is hereby enjoined, until further order of this [c]ourt, from sending [p]laintiff, any letter, email or any other communication claiming [p]laintiff is in violation of [d]efendant's, [CC&R], By- Laws, Architectural Guidelines and/or Rules and Regulations . . . .
The judge concluded the counterclaim filed by defendant in the 2018
lawsuit is not barred by the consent order or the entire controversy doctrine
"[g]iven the context of the 2017 [l]awsuit." In addition, the judge noted that
"[p]laintiff's reading would effectively bar [d]efendant from filing responsive
pleadings and other documents with the [c]ourt."
As to defendant's cross-motion to vacate the consent order, the judge
denied the relief sought because defendant failed to sustain its burden of proof
that the amended rules, regulations, and the homeowner's manual "comply with
A-0407-19T1 8 New Jersey law; comply with N.J.S.A. 45:22A-44; and meet the 'reasonableness'
factors set forth in Davidson Bros., Inc. . . . ." A memorializing order was
entered by the judge. This appeal ensued.
On appeal, plaintiff argues that the judge erred by denying her motion to
enforce litigant's rights and failing to interpret the plain language of the consent
order, the surrounding circumstances, and the parties' intent. Plaintiff also
contends that the term "communication" in the consent order includes pleadings,
and the judge erred in denying plaintiff's motion to enforce the consent order.
II.
"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 v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995). A trial
court's interpretation of the law is generally reviewed de novo. Occhifinto v.
Olivo Constr. Co. LLC, 221 N.J. 443, 453 (2015). More specifically,
interpretation and construction of a contract, such as the consent order in this
case, is a matter of law for the trial court, subject to de novo review on appeal.
Fastenberg v. Prudential Ins. Co. of Am., 309 N.J. Super. 415, 420 (App. Div.
1998); see Kaur v. Assured Lending Corp., 405 N.J. Super. 468, 474 (App. Div.
2009) (reviewing the enforcement of a settlement agreement de novo).
A-0407-19T1 9 "Accordingly, we pay no special deference to the trial court's interpretation and
look at the contract with fresh eyes." Kieffer v. Best Buy, 205 N.J. 213, 223
(2011).
The trial court properly found that defendant's counterclaim is not a
communication barred by the consent order. Consent orders are essentially
unique contracts, and thus in construing a consent order courts should use
principles of contract interpretation. "A consent order is, in essence, an
agreement of the parties that has been approved by the court." Hurwitz v. AHS
Hosp. Corp., 438 N.J. Super. 269, 292 (App. Div. 2014). As such, a consent
order operates as a contract between the parties. See ibid. Importantly, "it is a
basic rule of contractual interpretation that a court must discern and implement
the common intention of the parties." Pacifico v. Pacifico, 190 N.J. 258, 266
(2007).
The court must "examine the plain language of the contract and the
parties' intent, as evidenced by the contract's purpose and surrounding
circumstances." Hurwitz, 438 N.J. Super. at 292 (quoting Highland Lakes
Country Club & Cmty. Ass'n v. Franzino, 186 N.J. 99, 115 (2006)). "In doing
so, 'the words of an agreement are given their "ordinary" meaning.'" Woytas v.
Greenwood Tree Experts, Inc., 237 N.J. 501, 512 (2019) (quoting Flanigan v.
A-0407-19T1 10 Munson, 175 N.J. at 606). "[I]f the contract into which the parties have entered
is clear, then it must be enforced as written." Serico v. Rothberg, 234 N.J. 168,
178 (2018) (alteration in original) (quoting In re County of Atlantic, 230 N.J.
237, 254 (2017)); see also Kampf v. Franklin Life Ins. Co., 33 N.J. 36, 43 (1960)
(holding that courts generally enforce contracts as written).
Here, the motion judge properly interpreted the consent order and found
that defendant's counterclaim was not a "communication" barred by the terms of
the parties' agreement. The terms of the consent order are clear and
unambiguous. The consent order states that defendant is "enjoined, until further
order of this [c]ourt, from sending [p]laintiff any letter, email or any other
communication claiming [p]laintiff is in violation of the [d]efendant’s [CC&R],
By-Laws, Architectural Guidelines and/or Rules and Regulations, except for the
exclusions set forth in paragraph [two] below."
In evaluating the circumstances surrounding the execution of the contract
the court must focus on only those intentions that have been manifested and
revealed to the other party. As we previously noted, "[a] contracting party is
bound by the apparent intention he or she outwardly manifests to the other party.
It is immaterial that he or she had a different, secret intention from that
A-0407-19T1 11 outwardly manifested." Brawer v. Brawer, 329 N.J. Super. 273, 283 (App. Div.
2000) (quoting Hagrish v. Olson, 254 N.J. Super. 133, 138 (App. Div. 1992)).
Plaintiff argues that "the intent of the consent order was to cease being
required to defend defendant's false claims that she was in violation of the
covenants, by-laws and rules and regulations." We conclude, as did the motion
judge, that this alleged intent is clearly not reflected in the language of the
consent order and is contrary to a logical result. Interpreting the consent order
as plaintiff suggests would essentially deprive defendant of any ability to
enforce the governing documents of the community as against plaintiff and
essentially serve as a "judicial gag order." We reject plaintiff's argument that
her reasoning for entering the consent order is where the analysis should end.
In order for a party to waive a right which it would otherwise possess, it
"must be clearly and unmistakably established" that the party sought to waive
the right. Atalese v. U.S. Legal Services Group, L.P., 219 N.J. 430, 444 (2014).
Here, the plain terms of the consent order barred defendant from sending notices
of violations to plaintiff but did not waive defendant's right to initiate or pursue
judicial proceedings against plaintiff. Moreover, the language agreed upon by
the parties in the consent order clearly indicates that their mutual intent was to
A-0407-19T1 12 prevent defendant from harassing plaintiff with repeated notices of violations of
community guidelines.
After reviewing the record in light of these principles and facts, the judge
properly applied the "basic rule of contractual interpretation that a court must
discern and implement the common intention of the parties." Pacifico, 190 N.J.
at 266. Courts usually enforce contract as written. Kampf, 33 N.J. at 43. Here,
the judge aptly noted that "[p]laintiff's reading would effectively bar [d]efendant
from filing responsive pleadings and other documents with the [c]ourt." Based
upon the substantial, credible evidence in the motion record, the judge properly
denied plaintiff's motion to enforce litigant's rights.
III.
Plaintiff also argues the trial court erred in denying her motion to enforce
the consent order because the trial court improperly interpreted the word
"communication" to exclude defendant's counterclaim. Specifically, plaintiff
contends defendant's counterclaim, but not defendant's answer, constituted a
communication barred by the consent order because "the [c]ounter[][c]lai m
communicates to [p]laintiff, the court[,] and the public" "specific information
about the [p]laintiff's alleged violations of [the] HOA's Declarations, By-
Laws[,] and Rules and Regulations." In support of her allegation that pleadings
A-0407-19T1 13 constitute communications, plaintiff makes an analogy to case law interpreting
the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692. We are not
persuaded by plaintiff's argument.
The FDCPA, among other things, governs communications in connection
with debt collection. 15 U.S.C. § 1692. Plaintiff cites to non-precedential cases
from the United States Court of Appeals for the Ninth Circuit, the United States
Court of Appeals for the Seventh Circuit, and the United States District Court
for the District of Massachusetts.4 And, plaintiff cites Heintz v. Jenkins, 514
U.S. 291 (1995) for the proposition that "engaging in litigation constitutes
'communication.'"
The Supreme Court in Heintz held that the term "debt collector" in the
FDCPA "applies to attorneys who 'regularly' engage in consumer-debt-
collection activity, even when that activity consists of litigation." Id. at 295.
With respect to 15 U.S.C. § 1692c, the provision which requires a debt collector
to cease communicating with a consumer who notifies the collector that he or
she refuses to pay the debt, the plaintiff argued an attorney would be prohibited
4 Donohue v. Quick Collect Inc., 592 F.3d 1027 (9th Cir. 2010); Thomas v. Law Firm of Simpson & Cybak, 392 F.3d 914 (7th Cir. 2004) (en banc), rev'g 354 F.3d 696 (7th Cir. 2004); and Alger v. Ganick, O'Brien & Sarin, 35 F. Supp. 2d 148, 158 n.18 (D. Mass. 1999), respectively. A-0407-19T1 14 from filing a lawsuit against a nonconsenting consumer because engaging in
litigation would constitute impermissible communication.
The Court explained even though "an ordinary court-related document
does, in fact, 'notify' its recipient that the creditor may 'invoke' a j udicial
remedy," and thus is a communication, "it would be odd if the [FDCPA]
empowered a debt-owning consumer to stop the 'communications' inherent in an
ordinary lawsuit and thereby cause an ordinary debt-collecting lawsuit to grind
to a halt." Id. at 296. Moreover, the Court reasoned that it was not necessary to
read 15 U.S.C. § 1692c(c) in such a way, however, because the provisions of the
FDCPA contain "exceptions that permit communications 'to notify the consumer
that the debt collector may invoke' . . . a 'specified remedy.'" Id. at 296.
While plaintiff cites this case to bolster her argument that "legal pleadings
have been interpreted by the courts as being included under the definition of a
'communication' under the FDCPA," her reliance is misplaced. Defendant's
counterclaim can plausibly be characterized as a communication notifying
plaintiff that defendant was invoking a specified remedy. Consequently,
plaintiff's attempt to characterize defendant's counterclaim as an impermissible
communication lacks merit because, when analogized to the FDCPA,
defendant's counterclaim could arguably fall into one of the FDCPA's
A-0407-19T1 15 exceptions. Saliently, the FDCPA is statutorily defined and proscribed, whereas
the consent order here is a mutual agreement between the parties that is to be
interpreted in accordance with their reasonable expectations, not as the
legislature proscribed.
Based on the motion record, we are satisfied the judge properly concluded
that construing defendant's counterclaim as a "communication" under the terms
of the consent order would inappropriately restrain defendant and materially
expand the language of the clear and unambiguous consent order in plaintiff's
favor. In particular, we reject plaintiff's argument that defendant had a righ t to
join issue and file an answer and affirmative defenses to her complaint but not
a counterclaim. Plaintiff's argument is circuitous and devoid of merit.
We conclude that the remaining arguments—to the extent we have not
addressed them—lack sufficient merit to warrant any further discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0407-19T1 16