On appeal from the Superior Court of New Jersey, Chancery Division, Burlington County, Docket No. C-108-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Chambers.
On cross-motions for summary judgment, the trial judge granted summary judgment in favor of defendants the Township of Southampton (Township) and Orleans Home Builders (Orleans), denied the cross-motion for summary judgment by plaintiff LeisureTowne Association, Inc. (Association), and dismissed the complaint. In doing so, it determined that the Association could not compel the Township to call in certain performance bonds for the LeisureTowne development or compel the Township to make certain improvements. In addition, the trial court determined that the Association could not prevent Orleans from transferring certain property to the Township. The Association has appealed this decision. We affirm.
The trial court rejected the Township's argument that the complaint should be dismissed under the entire controversy doctrine and the doctrine of collateral estoppel as a result of earlier litigation between plaintiff and the Township. The Township has filed a cross-appeal seeking to overturn that decision. Because we have affirmed the dismissal of the complaint as noted above, these issues are moot, and they will not be addressed in this opinion.
Our review of a trial court's decision on a motion for summary judgment is de novo; we employ the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A movant will be granted summary judgment where there is no material issue of fact and the movant is entitled to prevail as a matter of law. R. 4:46-2(c). In this case, the following relevant facts are not disputed.
The Association is the administrator and owner of common land and facilities for the planned residential age-restricted community known as LeisureTowne located in the Township of Southampton. Orleans is the successor to the original builder for this development.
The Association brought this action against defendants seeking enforcement of performance bonds. In count one, it sought to compel the Township to call in the performance bonds Township is holding for Recreation Area Number 4 within LeisureTowne and to complete the work there. Specifically, the restrooms needed to be made handicap accessible and grading and landscaping by the restrooms needed to be corrected. In count two, the Association sought to compel the Township to call in the performance bonds covering Lake Number 6 and to complete the work necessary there. Lake Number 6 is a man-made lake within LeisureTowne that requires dredging due to the deposit of silt there.
In addition, in count three, the Association sought to require Orleans to convey to it 9.5 acres, identified as Section 1D in the Declaration of Restrictive and Protective Covenants (Declaration) and accompanying deed description. The Declaration with Rider dated March 23, 1994, governing LeisureTowne provided that this land was to be developed into single family residences and that the common areas were to be turned over to the Association within ten years. Orleans did not develop Section 1D as anticipated due to environmental issues that arose. As a result, Orleans proposes to transfer the property for one dollar consideration to the Township. The Township has passed an ordinance authorizing the acceptance of this property and another ordinance providing that the property "shall be designated to remain as open space in its natural state for aesthetic benefit to the community and as an attractive locale for wildlife free of any improvements including trails or other facilities for human activity." The Association contends that this property should be transferred to it, not the Township.
In its answer, the Township contested the merits of the Association's claims and asserted numerous defenses, including collateral estoppel and the entire controversy doctrine. These two defenses were based on previous litigation between the parties. Orleans also filed an answer contesting the Association's claim against it. Defendants filed motions for summary judgment, and plaintiff filed a cross-motion for partial summary judgment.
In its written opinion dated July 28, 2009, the trial court rejected the Township's defenses of the doctrines of collateral estoppel and the entire controversy doctrine. Reaching the merits of the Association's claim regarding the bonds, the trial court found no legal or equitable basis entitling the Association to a court order directing the governing body of the Township to call the performance bonds to which the Association is not a party. It further noted that "[d]efendants, as suggested at oral argument by Township defendant's counsel, have determined that to attempt to call these bonds after all these years would possibly generate significant litigation and consequent unnecessary taxpayer expense, and as a governing body, they have simply chosen to neither accept nor reject the improvements." With respect to count three, the trial ...