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Ferolito v. Park Hill Association


November 27, 2007


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

Per curiam.


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 residents and owners in order to identify those interested and authorized plaintiff to obtain a proposal from the company.

On May 28, 2003, plaintiff and a representative of the company appeared before the board. The representative advised that the satellite dishes could be installed at no charge to the association and agreed to prepare a contract detailing proposed locations and describing the dishes.

On June 5, 2003, the company submitted a proposal for installation at a cost of $14,000, which could be offset if there were "about" one hundred subscribers. At the board's direction, the management company subsequently conducted two surveys. The second was done because of the small number of responses to the first. The highest number of residents expressing interest was twenty-seven. The lowest number of negative responses was thirty-three. There were no other responses.

On October 8, 2003, at the association's annual meeting, the board voted to take no action. The board explained that interest in the project was low and the funds for installation were not included in the annual budget.

On January 27, 2004, plaintiff submitted a proposal from a different company and offered to pay the $1000 installation fee that the company would require. That company proposed installation of two dishes per building on the chimneys of the buildings. Lines carrying the signal to the users would be dropped through the roof to the attics and then through the closets in the separate units. The board asked their manager to meet with a representative of the company, but the manager encountered problems that required him to take a leave of absence and he did not attend the meeting. On June 9, 2004, the board agreed to send plaintiff a letter explaining the delay.

On September 8, 2004, plaintiff again attended a board meeting. Plaintiff presented a second proposal from the company. The quoted price for installation was $2000, not including the cost of necessary electrical wiring. The board agreed to review the proposal and present it to the owners at the annual meeting scheduled for October 13, 2004. On its face, the proposal is ambiguous to the extent that it is not clear whether the cost was $2000 per building or $2000 for the entire project. Prior to the annual meeting plaintiff confirmed that the company had included the association on its policy of insurance and that no construction permits were required for installation. After the meeting, on November 9, 2004, the board decided to take another survey to assess the interest of the residents.

While Park Hill's master deed permits the association to "construct new improvements or additions to the [c]ommon [e]lements," it prohibits the association from altering or damaging any unit without the consent of its owner. No owner may make any structural change or place any antenna of any sort "until the plans and specifications, showing the nature, kind, shape, height, materials and location" have been approved by the board.

A condominium association must act in accordance with its master deed, bylaws and the Condominium Act, N.J.S.A. 46:8B-1 to -38. See Thanasoulis v. Winston Towers 200 Ass'n, Inc. 110 N.J. 650, 656 (1988). The board has the responsibility of a fiduciary to "act reasonably and in good faith in carrying out their duties." Papalexiou v. Tower West Condo., 167 N.J. Super. 516, 527 (Ch. Div. 1979). This association's master deed precludes the board from undertaking improvements or additions to the common elements that alter or damage individual units. Moreover, the board has an obligation to preserve the association's funds and to manage and maintain the common areas. See Thanasoulis, supra, 110 N.J. at 656-57; Kim v. Flagship Condo. Owners Ass'n., 327 N.J. Super. 544, 551 (App. Div.), certif. denied, 164 N.J. 190 (2000).

This record includes no evidence that would permit a reasonable juror to find that this board acted arbitrarily, unreasonably, in bad faith or out of self-interest by requiring and reviewing information before approving this project. See Billig v. Buckingham Towers & Condo. Ass'n I, Inc., 287 N.J. Super. 551, 563-64 (App. Div. 1996). The plans given to the board were far from detailed and the cost was not clear. This is not a small project with minimal impact on the common elements. This project involves all of the eleven buildings that house the 142 residential units in Park Hill. The project involved running lines for the satellite service from the roofs of the buildings to the attics, which has obvious potential for continual impact on the common elements and the board's responsibility to maintain them. It also involved running lines from the attics, through the closets in individual units, which would require intrusion upon the individual units and, under the master deed, could not be done without the consent of the unit's owner. Under these circumstances, the board's interest in the views of the members of the association and insistence upon detailed proposals was wholly consistent with the exercise of reasonable caution in the competent discharge of its responsibility to the members of the association as a whole. Billig, supra, 287 N.J. Super. at 563.

Plaintiff's claim that the board's action violated 47 C.F.R. § 1.4000 has no merit. The regulation does not apply beyond "property within the exclusive use or control" of a person who seeks approval necessary to receive satellite service. Ibid. See Daly v. River Oaks Place Council of Co-Owners, 59 S.W.3d 416, 420 (Tex. App. 2001) (noting inapplicability to "placement of antennas on common areas . . . where a community association . . . is legally responsible for maintenance and repair") (quoting In re Lourie, 13 F.C.C.R. 16760, 16764 (F.C.C. June 16, 1998)).

In addressing defendants' motion for fees and costs pursuant to Rule 1:4-8 and N.J.S.A. 2A:15-59.1(b)(1), the trial court did not address the applicable standards. For that reason, we reverse and remand. We refer the trial court to the following decisions which address the standards: Toll Bros., Inc. v. Twp. of West Windsor, 190 N.J. 61 (2007); McKeown-Brand v. Trump Castle Hotel & Casino, 132 N.J. 546 (1993); Masone v. Levine, 382 N.J. Super. 181 (App. Div. 2005).

Affirmed in part; reversed in part and remanded.

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