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Summerhill Condominium Association v. Venner

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


May 22, 2008

SUMMERHILL CONDOMINIUM ASSOCIATION, PLAINTIFF-RESPONDENT,
v.
PATRICIA VENNER, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, Docket No. DC-7354-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 5, 2008

Before Judges Parrillo and Baxter.

This is a collection action by a condominium association against one of its members for unpaid assessments and costs of collection. Defendant Patricia Venner appeals from an order of the Special Civil Part awarding plaintiff Summerhill Condominium Association (Association) judgment in the amount of $3,773.21. We affirm.

Plaintiff is a non-profit corporation incorporated pursuant to the New Jersey Nonprofit Corporation Act, N.J.S.A. 15A:1-1 to 16-2. The Association's master deed and by laws are recorded in the Burlington County Clerk's Office. Defendant is a member of the Association by virtue of her record ownership of property at 265 Rosebay Court, Delran, and, as such, is subject, by covenant, to the Association's master deed and by-laws. These governing documents provide that Association members shall be deemed to covenant and agree to pay the Association all assessments due, together with any fines, charges and costs associated with the collection thereof, including interest on the assessments, legal fees and court costs. Assessments are annual but divided into advance monthly installments, payable on the first day of each month. These assessments become the personal obligation of each owner of the unit when each installment becomes due, and shall remain a continuing lien upon the unit against which they are made.

This contractual liability is in accord with the Condominium Act, N.J.S.A. 46:8B-1 to -38, which provides in pertinent part:

A unit owner, shall by acceptance of title, be conclusively presumed to have agreed to pay his proportionate share of common expenses accruing while he is the owner of a unit. . . . No unit owner may exempt himself from liability for his share of common expenses by waiver of the enjoyment of the right to use any of the common elements or abandonment of his unit. . . .

[N.J.S.A. 46:8B-17.]

In accord with the governing documents, upon default that has not been cured within a ten-day grace period, plaintiff's Board of Trustees has the right to accelerate the remaining installments of the annual assessment, record a lien against the unit, or take any other action allowed by law for the accelerated amount, including the institution of a lawsuit. Moreover, in connection with the Association's collection effort, the Board may also impose interest charges, late fees and reasonable attorney's fees and costs.

Defendant failed to pay her December 2005 installment on the annual assessment and paid only two installments on her 2006 assessment, amounting to $1,182 due and owing the Association. Accordingly, plaintiff instituted a collection action in the Special Civil Part for unpaid assessments through August 1, 2006 ($1,182), remaining installments on the annual assessment ($624), and attorney's fees ($2,356.13). Defendant answered and requested an adjournment of the November 15, 2006 trial date, which the court rescheduled for December 13, 2006. Defendant's second adjournment request was denied as well as her request to appear by telephone for the trial. When defendant failed to appear at trial on December 13, 2006, default judgment was entered against her on December 29, 2006, initially in the amount of $4,162.13, following plaintiff's certification of the amount due and defendant's non-military status. Defendant's subsequent motion to vacate default was denied, but the court, sua sponte, opened up the judgment to revisit the attorney's fee issue. After plaintiff filed a certification of attorney's fees in accordance with Rule 4:42-9 and RPC 1.5, and following a hearing on the issue, the court entered an amended judgment in favor of plaintiff in the amount of $2,773.21, which included $1,423 in counsel fees. In fixing the amount of counsel fees, the court reasoned:

In the present matter, plaintiff's counsel has submitted the required certification [pursuant to Rule 4:42-9]. The court has considered this, and finds them to be reasonable in light of RPC 1.5. Specifically, the charges here are similar to those charged within the vicinage for similar services, the plaintiff prevailed through default and has had to appear in court on the motions filed by defendant for this matter. While this matter is not novel or complex, counsel has charged similar amounts in her other matters within this vicinage, as shown through the bills submitted. As such, the request for counsel fees is reasonable under the rules. Therefore, the court will award attorney's fees in the amount of $1,423.00 and costs in the amount of $544.21. The Judgment shall be amended to reflect this amount, with the new total being $2,773.21.

On appeal, defendant essentially challenges the amount of the counsel fee imposed, raising the following issue for our consideration:

APPELLANT RECEIVED NOTICE OF A LAWSUIT AGAINST HER FOR ASSESSMENT WHILE MAKING PAYMENTS NOTICE ON THE BOOKS KEPT BY THE PLAINTIFF THAT LEGAL FEES OF THOUSANDS OF DOLLARS WERE BEING BILLED TO DEFENDANT'S STATEMENT WHILE SHE WAS MAILING PAYMENTS TO THE PLAINTIFF. SHE WAS FOUND IN DEFAULT.

We have considered the issue in light of the record, the applicable law, and the arguments of counsel and defendant pro se, and we are satisfied that the issue raised is not of sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A), (E). Suffice it to say, considering this Special Civil Part matter was four months old at the time, we perceive no abuse of discretion in the trial court's denial of defendant's second request for a continuance. R. 6:5-2; Bender v. Adelson, 187 N.J. 411 (2006). Nor was the denial of defendant's motion to proceed telephonically a mistaken exercise of judicial discretion, especially in light of Rule 1:2-1, which provides that "[a]ll trials . . . shall be conducted in open court unless otherwise provided by rule or statute." Similarly, the court properly denied defendant's motion to vacate default judgment under Rule 4:43-3. Defendant admits liability on the underlying debt and challenges only the reasonableness of the attorney's fees imposed. However, attorney's fees are specifically authorized by the governing documents by which defendant is bound, and defendant has offered no meritorious defense to the reasonableness of the counsel fee award. On the contrary, the trial judge carefully analyzed the fees sought by plaintiff in accordance with RPC 1:5(a) and concluded, based on plaintiff's counsel required certification, the nature of the services offered, and the prevailing rates in the relevant community for those services, that the fees awarded were reasonable. The trial judge thus amended the judgment to reflect an amount of $1,423 in attorney's fees and $544.21 in costs for a total of $2,773.21, including the amount of the unpaid assessment.

Affirmed.

20080522

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