On appeal from the Superior Court of New Jersey, Chancery Division, Gloucester County, Docket No. C-55-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 29, 2008
Before Judges Sapp-Peterson and Alvarez.
Defendants, Leonard A. Wisniewski and Barbara A. Wright, appeal from the trial court decision reaffirming its July 14, 2006 order awarding counsel fees and costs in favor of plaintiff, Heritage Woods Homeowners Association, Inc. (Association). In an August 16, 2007 per curiam decision, we affirmed the trial court orders directing defendants to remove a recreational gym erected upon common property adjacent to their home, to pay counsel fees and costs incurred by the Association, and to pay fines assessed against them. We remanded the matter for a determination by the trial court as to whether Dennis Pierattini and Mary Shute, individuals serving as the Association's officers and directors, were authorized to commence the litigation on behalf of the Association, and to explain how it arrived at the "particular amount of counsel fees, costs, and fines it awarded." Heritage Woods Homeowners Ass'n, Inc. v. Wisniewski, No. A-5976-05T3 (App. Div. August 16, 2007) (slip op. at 17-18). The Supreme Court denied defendants' petition for certification on December 6, 2007.
On remand, the court permitted the parties to brief the issues and thereafter issued a written opinion. The court found that the minutes of the Association's Board of Trustees (Board) meetings and the election documents left "no doubt that this lawsuit was properly authorized by the Board and the case was brought on behalf of the Association." The court stated further:
When the initial question of authority was raised in the prior proceedings several years ago, it was at the suggestion of this Court that the Association held a new election to establish the propriety of the offices of Shute and Pierattini. The results of that election have been a matter of record in this case, and suffice it to say, Shute and Pierattini were elected unanimously by the Association to act as directors. The Association's minutes demonstrate a clear corporate intention to institute and fully prosecute this action. Other than by the Defendants, there was never any challenge to these issues by any other members of the Association. Nor is there any evidence of intra-corporate dispute about the institution of this lawsuit. Mr. Pierattini's Certification filed on December 14, 2007, contains attachments A through D. This case was instituted by the Association by way of a Verified Complaint filed by the Association on July 26, 2005. Mr. Pierattini attaches a Resolution of the 2000 Board of Directors which is signed on October 6, 2005. That Resolution attempts to back-date the authority to the year 2000. It indicates that Mary Shute, Dennis Pierattini and David O'Rourke were the duly elected voting members of the Association on February 24, 2000. Also attached to his Certification is a copy of a Resolution of the 2006 Board of Directors which ratifies the action of all the prior directors.
From a practical standpoint, were there any question of the authority of Ms. Shute and Mr. Pierattini regarding their actions on behalf of the Association, there was not only the election subsequent to the institution of the action which ratified their positions, but the prior Resolutions as indicated in Mr. Pierattini's Certifications that they were acting on behalf of the Association. In his Certification, Mr. Pierattini indicates that between 2001 and February 2007, there had never been a contested election.
In summary, there is no indication that there is any dispute in or among the members of the Association as to the authority of Shute and Pierattini to act on their behalf.
The court next addressed the issue of fines, counsel fees and costs. The court stated that the "fines were assessed against Defendants in the amount of $100.00 per day, not pursuant to the rules and regulations of the Association, but in order to enforce this Court's Order which had been ignored for several months, i.e., to remove the personal property from the common area." The court determined that it had the inherent power to enforce its orders, noting that "[f]or an orderly functioning of society, court orders must either be voluntarily complied with or appropriately enforced." We find no error in the court's imposition of fines under these circumstances.
Turning to the issue of counsel fees and costs, the court stated that it analyzed the certification submitted in support of the award in detail. The court noted that defendants claimed that "[p]aintiff was 'not entitled' to fees, fines or costs and the only reasons given for that position were factual allegations that the Township municipal court determined that there were no violations of law." While acknowledging that defendants claimed the fees were excessive, the court found that defendants failed to specifically point to any service provided or hourly rates charged that were excessive. The court found that the issues before it in the underlying litigation were "of significant complexity." The court concluded that the fees charged and fines assessed were appropriate, including those counsel fees and costs incurred in connection with the appeal, in accordance with our remand order.
On appeal, defendants raise the following points for our consideration:
POINT I. NEITHER PIERATTINI NOR SHUTE WERE PROPERLY ELECTED OFFICERS OF THE ASSOCIATION WHEN THEY FILED THIS LAWSUIT AND SO THEY HAD NO AUTHORITY TO SUE ON BEHALF OF THE ASSOCIATION; LATER RATIFICATION CANNOT CREATE SUCH AUTHORITY.
A. THE 2005 HERITAGE WOODS BOARD WAS NOT DULY ELECTED AND SO COULD NOT AUTHORIZE FILING THIS LAWSUIT ...