On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, C-55-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lefelt, Parrillo and Sapp-Peterson.
Defendants Leonard Wisniewski and Barbara A. Wright appeal from four orders entered by the Law Division essentially requiring them to remove structures they erected upon common property adjacent to their home and to pay counsel fees and costs incurred by plaintiff, the Heritage Woods Homeowners Association, Inc. (Association), as well as fines assessed against them by the Association. We remand to the trial court for further proceedings related to the award of counsel fees, costs and fines, but otherwise affirm the October 31, 2005, the two July 14, 2006, and the July 19, 2006 orders.
These are the facts that emerge from a protracted procedural history. The Association is a New Jersey non-profit membership corporation incorporated in connection with the Heritage Woods Major Subdivision and Development (the Development), which consists of 163 single-family homes in Deptford Township (Township). Defendants own one of those homes located at 140 Azalea Drive. Adjacent to their home is an area designated in the major subdivision plan as a common area. As owners of property within the Development, defendants possess a membership interest in the common areas, which the residents of the Development are permitted to use in accordance with the ByLaws of the Heritage Woods Homeowners Association, Inc. (ByLaws).
The Township resolution preliminarily approving the construction of the Development was conditioned upon the requirement that "the Developer maintain the open space by a plan subject to the Planning Board approval." Also associated with the Development were the following governing documents: a November 19, 1992 Declaration of Covenants, Restrictions, Easements, Charges and Liens, as amended on October 21, 1993 (the Declaration); a September 24, 1992 Certificate of Incorporation, as amended on November 19, 1992; and the By-Laws.
Richard Wisniewski (Wisniewski) served as president of the Association from 1998 to 2000. While president, he introduced a proposed amendment to the By-Laws that would permit property owners, whose property was located adjacent to common areas, to use these areas for private purposes. Defendants also sought approval to erect a fence and jungle gym on the common grounds situated adjacent to their home. Although the amendment was never adopted, the Association's Board of Trustees (Board), over which Wisniewski presided, approved their request to make the proposed improvements. In addition to the fence and jungle gym, defendants also erected a pole with electrical run-ups. The fence enclosure extended defendants' property lines by approximately eighty feet. Later, the Board, under new leadership and allegedly to reduce the Association's liability, approved the erection of a fence behind defendants' home and that of another resident to protect visitors to the common areas from unknown hazards in the common areas. Finally, defendants secured approval from the Deptford Township Zoning Board to erect a cabana and garage.
In July 2002, the Board sent a notice to defendants advising that the approval of defendants' use of the common grounds had been rescinded and demanded that defendants remove the structures. The Township also notified defendants that their use of the common areas was contrary to law and directed defendants to remove the structures. Defendants' counsel notified the Association that its actions towards defendants constituted harassment. Defendants' attorney also responded to the Township's notice, advising that the Board had approved the improvements and that other residents had made similar improvements to adjacent common areas.
After unsuccessfully pursuing an action against defendants in the Township Municipal Court, plaintiff filed a Verified Complaint and Order to Show Cause (OTSC) in the Chancery Division. The Verified Complaint sought, among other things, an order compelling defendants to remove the structures and compelling payment of fines the Association assessed against defendants for their continued failure to remove the structures, as well as counsel fees incurred by the Association. Plaintiff requested that the matter proceed summarily pursuant to Rule 4:67-1.
In lieu of filing an answer, defendants filed a motion to strike plaintiff's pleadings, claiming that the Association's authorized representatives, Mary Shute and Dennis Pierattini, who brought the lawsuit, lacked the authority to initiate the action on behalf of the Association. On October 31, 2005, the court denied defendants' motion to strike, finding that the motion was procedurally improper. Specifically, the court concluded,
This is a stupid neighborhood dispute that this Court really has difficulty dealing with because . . . according to the papers filed by [defense counsel] we have a major challenge to the directors and the organization of this corporation.
I have reviewed the papers. I've reviewed the arguments. I'm going to grant your application, [plaintiff's counsel], that the property -- the items that are on common ground will be ordered to be removed.
If [defense counsel] wishes to challenge the position of the directors and wishes to assert those challenges he's going to have to file a new complaint cause I don't think procedurally it's properly brought in this case.
If we're going to have major litigation about who the directors are of the corporation and whether they're valid directors and whether there's other disputes regarding the organization of the association, I don't think that has anything to do with removing property from a common area where it's not supposed to be.
The court also denied defendants' request for an additional ten days to file a responsive pleading pursuant to Rule 4:6-1(b).
Thereafter, plaintiff filed a motion seeking payment of fines, counsel fees and costs relying upon provisions within its By-Laws and Declaration. While this motion was pending, defendants filed their first appeal, and the hearing on the motion was postponed pending resolution of the appeal. Although filed as an appeal from a final judgment, given the pending motion, defendants' appeal was interlocutory and defendants failed to seek leave to file an ...