May 27, 2009
CONVENT MEWS ASSOCIATION, INC., PLAINTIFF-RESPONDENT,
JAMES C. BENSON, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Chancery Division, Morris County, Docket No. C-172-97.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted May 4, 2009
Before Judges R. B. Coleman and Sabatino.
As our prior opinions have noted, this litigation concerns a series of disagreements that defendant James Benson, the owner of a condominium unit in Morristown, has had with plaintiff, Convent Mews Association, Inc. See Convent Mews Ass'n v. Benson, No. A-1785-07 (App. Div. August 14, 2008); Convent Mews Ass'n v. Benson, No. A-2097-06 (App. Div. July 24, 2007). We incorporate the facts and procedural history from those prior opinions.
In this third and most recent appeal, defendant again attempts to reverse the trial court's continuation of injunctive restraints against him, which limit his personal contact with management and representatives of the condominium association. In particular, defendant seeks reversal of Judge Langlois's order of September 30, 2008, rejecting his motion (which defendant filed in the Chancery Division less than a month after our last opinion in August 2008) to vacate the continuing injunction.
The order under review further specified that "[a]ny further disputes shall be first submitted to [a] mediator/arbitrator at Mr. Benson's initial expense (which may be reallocated in a.d.r. [alternative dispute resolution, or "ADR"] after hearing of all claims there)." (Emphasis added). This condition reiterated a similar cost-allocation directive that the Chancery judge had set forth in an earlier order of November 26, 2007. We sustained that order in August 2008. Apparently no such ADR process has been utilized in this matter to date.
We have fully considered the arguments defendant has raised in his present appeal, and conclude that they lack sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). In particular, the persistent litigiousness of defendant in filing motions and appeals underscores the reasonableness of the terms of the outstanding orders issued by the trial court. If defendant should happen to succeed in obtaining substantive relief in a future ADR process, he can seek reallocation and reimbursement of some or all of the costs that he advanced to initiate that process.
The trial court did not misapply its discretion in maintaining the initial allocation of ADR costs to defendant. In light of the particular history of this matter, the court was not obligated to have the costs of ADR equally advanced by the parties.
Defendant has misconstrued comments in our prior opinions encouraging the use of ADR by the parties as some form of mandate that the trial court dissolve the restraints against him. We imposed no such mandate. The continuation of the restraints against defendant, and the pursuit of an ADR process administered by a arbitrator, mediator or some other third-party neutral, are not mutually exclusive. The trial court retains the discretion to maintain, modify, or vacate the injunction as the circumstances evolve.
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