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Ferolito v. Park Hill Association

November 27, 2007

ARNOLD P. FEROLITO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
PARK HILL ASSOCIATION, INC.*FN1 AND PAGANO COMPANY, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS,
AND FAY BERLIN, MARY CHRISLER, JOAN DOMAS, JOSEPH ROSE, AND JOHN WALTERS, DEFENDANTS.



On appeal from Superior Court of New Jersey, Chancery Division, Bergen County, Docket No. C-7-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2007

Before Judges Coburn and Grall.

Plaintiff Arnold P. Ferolito owns one of 142 residential units housed in eleven separate apartment buildings known as Park Hill. The defendants are Park Hill Association, Inc., Pagano Company, which manages the buildings, and individual members of the association's board of directors.

Plaintiff filed a complaint alleging that defendants arbitrarily withheld approval of his proposal to install a satellite dish system and violated his rights under the association's bylaws and 47 C.F.R. § 1.4000. Prior to filing an answer and in accordance with Rule 1:4-8, the association demanded that plaintiff withdraw the complaint due to the absence of a legal foundation for the claims asserted. On cross-motions for summary judgment, the judge found that plaintiff's proposal was too indefinite to require action by the board, dismissed his complaint without prejudice, and subsequently awarded defendants fees and costs. On plaintiff's appeal and defendants' cross-appeal, we affirm the order dismissing the complaint and reverse and remand the order awarding defendants fees and costs.

This case presents a preliminary question about our jurisdiction. The trial court entered the order dismissing plaintiff's complaint on January 3, 2006. On January 19, 2006, defendants moved for an award of counsel fees and costs, pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1. On February 1, 2006, before the trial court ruled on defendants' motion, plaintiff filed a notice of appeal and indicated that there were no matters pending in the trial court. On February 22, 2006, the trial court awarded defendants fees and costs. On March 8, 2006, plaintiff filed an amended notice of appeal to include a challenge to the order awarding fees. On March 13, 2006, defendants filed a cross-appeal limited to the amount of the fees and costs awarded.

The jurisdictional question arises from plaintiff's filing of a notice of appeal when he had no right to appeal. Because defendants' motion for fees and costs was pending in the trial court when plaintiff filed his notice of appeal, the order was not final (a defect obscured by inaccurate information provided by plaintiff on the notice of appeal) and plaintiff had no right to appeal without leave from this court. R. 2:2-3(a)(1); R. 2:2-4. After plaintiff filed the notice of appeal, defendants could and should have moved before this court for an order dismissing the appeal or authorizing a limited remand.

See R. 2:9-1(a); Shimm v. Toys from the Attic, Inc., 375 N.J. Super. 300, 304 (App. Div. 2005). Accordingly, we must consider whether to exercise our discretion to grant leave to appeal in the interests of justice. See R. 2:2-4; R. 2:4-4; R. 2:5-6.

A factor significant to the question whether we should exercise our discretion to grant leave to appeal, which we do sparingly, is the disingenuous argument plaintiff makes in opposition to the trial court's order awarding defendants fees and costs. See State v. Reldan, 100 N.J. 187, 205 (1985) (discussing standard for grant of leave to appeal). For purpose of emphasis, not redundancy, we repeat: plaintiff filed a notice of appeal while defendants' motion for fees and costs was pending. The form of "Notice of Appeal" that plaintiff filed states: "ALL ISSUES AS TO ALL PARTIES HAVE BEEN DISPOSED OF IN THIS ACTION IN THE TRIAL COURT." Plaintiff's attorney placed an "X" in a box next to the word "YES". Plaintiff continues to overlook and omit reference to his improperly filed and inaccurate notice of appeal. In the brief and reply brief submitted on appeal, plaintiff argues that we should reverse the trial court's order awarding fees because the trial court had no jurisdiction to entertain that motion after he filed his notice of appeal.

The Rules of Court are designed and applied to serve, not thwart, a just and efficient resolution of disputes. R. 1:1-2; R. 2:2-4. No attorney or litigant should have any doubt that our Rules do not permit a party to avoid entry of an unfavorable counsel fee order by prematurely filing a notice of appeal in an effort to divest the trial court of jurisdiction. It is clear that the interests of justice would not be served by a retroactive grant of leave to appeal in such a case. For that reason, the initial notice of appeal, which was improperly filed in this case, is dismissed retroactive to the date of its filing.

Our decision to dismiss the improperly filed notice of appeal does not, however, end the case. An amended notice of appeal and a cross-appeal were both properly and timely filed after entry of an order from which the parties had a right to appeal without leave. R. 2:2-3(a)(1). Accordingly, we proceed to consider the merits of this case on the basis of the amended notice and the cross-appeal and as if the improper notice of appeal, now dismissed retroactive to its filing date, had not been filed.

We consider the evidential materials submitted on the motions for summary judgment in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). The condominium unit owned by plaintiff is occupied by his mother-in-law. She speaks Russian and is interested in receiving television and radio programs that are broadcast in that language. These programs are not available through the cable service accessible to residents of Park Hill but are offered by several providers of satellite service. Other residents of Park Hill were also interested in foreign language programs. Plaintiff came to their assistance. He circulated a petition requesting the association to permit installation of satellite dishes and obtained forty-six signatures.

On January 8, 2003, plaintiff presented the board with information on international satellite service. The board asked for information on a service that would provide both international and domestic programs. On April 23, 2003, plaintiff advised the board that he had located a company that would provide both. Because the cost of installation would vary with the number of users, plaintiff was unable to state the cost. The board decided to survey ...


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