On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3289-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 11, 2009
Before Judges Lihotz and Baxter.
Plaintiff Port Liberte Condominium I, Inc. filed a complaint against defendant, Ronnie Meadows, alleging that defendant owed the Condominium Association (Association) the sum of $14,436.28, representing defendant's unpaid share of condominium maintenance fees. Defendant counterclaimed, alleging that when the Association repaired the roof of the building, its contractor "negligently reinstalled the air conditioning system in a manner that did not provide air conditioning services" to his unit. In count one of his counterclaim, he alleged that the conduct of plaintiff was "grossly negligent" and "constituted unreasonable commercial practices." In count two of his counterclaim, defendant alleged that plaintiff's conduct "violated the Consumer Fraud Statute*fn1 as unconscionable commercial practices," and in the third count, defendant alleged that the "services offered by [the Association] is [sic] merchandise as defined in [the Consumer Fraud Act]." The third count also alleged the Association knowingly made a false representation when it promised him that it would provide him with air conditioning services, and such false claims were in violation of a portion of the Consumer Fraud Act (CFA).
Plaintiff moved for summary judgment on defendant's counterclaim, arguing that all three counts should be dismissed because: 1) maintenance of the individual air conditioning units on the roof of the building is the responsibility of the unit owners such as defendant, and is not the responsibility of the Association; 2) the Association never promised that it would provide air conditioning service, maintenance or repairs to any condominium unit owner; and 3) the Association does not offer merchandise or services to the general public and therefore does not come within the purview of the CFA.
Defendant's opposition to plaintiff's motion consisted only of his certification, in which he asserted that when the Association repaired the roof, its contractor temporarily moved the air conditioning compressors for each condominium unit, and when the contractor reinstalled them, it reconnected the units "to the wrong vent lines." Defendant attached to his certification a letter from the Association acknowledging the problem and promising to submit any repair expenses defendant incurred to the contractor, along with a request that the contractor reimburse defendant. Notably, defendant's opposition to plaintiff's summary judgment motion avoided any discussion of plaintiff's argument that because the Association did not offer merchandise or services to the general public, but instead limited its services to individuals owning a condominium unit at Port Liberte, defendant's counterclaim should be dismissed, as all three counts alleged a violation of the CFA, which requires that the merchandise or services in question be "offered, directly or indirectly, to the public for sale[.]" N.J.S.A. 56:8-1(c).
In an oral opinion,*fn2 Judge Velazquez granted plaintiff's summary judgment motion and dismissed defendant's counterclaim, reasoning that "the [A]ct does not apply to the plaintiff, who was simply providing condo association services, which . . . do not come under the definition of services and merchandise set forth in th[at] statute." The judge observed that because "each of the counts in the defendant's counterclaim are predicated on the [CFA], the entire counterclaim must be dismissed." He reasoned that because the CFA prohibits unconscionable commercial practices in connection with the sale or advertisement of any merchandise or real estate "offered directly or indirectly to the public," and the Association does not offer any services "to the public at large," any wrongful conduct by the Association did not come within the purview of the CFA. For that reason, the judge granted plaintiff's motion and dismissed defendant's counterclaim.*fn3
On appeal, we apply the same standard as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Thus, we must determine whether there are any genuine issues of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). This requires a review of the competent evidential materials in the light most favorable to the non-moving party to determine whether a rational factfinder could resolve the issue in favor of the non-moving party. Brill, supra, 142 N.J. at 540. We affirm.
In Point I, defendant argues that the motion judge was obliged to "consider the counterclaim liberally so as to allow the negligence and contract claims to proceed or in the alternative should have allowed an amendment to the complaint." In particular, defendant argues that the motion judge was entitled to dismiss only those portions of his counterclaim that alleged a violation of the CFA. He argues that the first and second counts did not allege such violations, and therefore were improperly dismissed. He maintains the first count "could have/ should have been read deleting sentence number nine*fn4 and the First Count in the form presented, should have been allowed to remain based upon the negligent repair and [plaintiff's] failure to meet its contractual responsibilities as relates to common elements." He argued that in the alternative, the judge should have afforded him the opportunity to amend his counterclaim "if the court deemed the breach of contract and negligence [claims] not to have been articulated completely in the first count." His brief contains no discussion of the second count. We reject his arguments.
As plaintiff correctly observes, defendant never presented to the Law Division the claims he now asserts on appeal. In particular, he never argued before the motion judge that his claims did not arise under the CFA and were therefore entitled to survive plaintiff's summary judgment motion. Instead, his opposition was based solely on his claim that the Association reneged on its promise to reimburse him for any expenses he incurred in the repair of his air conditioning system. With the exception of matters not pertinent here, we "decline to consider questions and issues not properly presented to the trial court when an opportunity for such a presentation is available." Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
Defendant had a full and fair opportunity to raise in the Law Division the arguments he now presents for the first time on appeal. He could certainly have argued in the Law Division that his counterclaim sounded in negligence and contract, and did not arise exclusively under the CFA. However, he failed to make those arguments and offers no reason on appeal for his failure to do so. Under those circumstances, we will not consider his argument that any contract or negligence claims should have been permitted to proceed. Moreover, we will not consider his alternative argument that the judge ...