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Community Access Unlimited, A.H., M.W., M.B., and D.P.,*Fn1 v. Michelle Rockcliffe


April 26, 2012


On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-3487-07.

Per curiam.


Submitted March 13, 2012

Before Judges Reisner and Accurso.

Defendant-counterclaimant Michelle Rockcliffe appeals from two orders for partial summary judgment, one denying summary judgment to her on plaintiffs'*fn2 claims for violation of the New Jersey Law Against Discrimination (LAD), defamation, and bias crimes and, the other, granting plaintiff Community Access Unlimited's (CAU) motion for summary judgment on defendant's counter-claims for malicious use of process, abuse of process, ultra vires action, breach of fiduciary duty, and nuisance; and from the grant of CAU's motion quashing a subpoena defendant served on plaintiffs' prior litigation counsel. We affirm.

This suit arises out of a dispute between neighbors living in a thirty-unit condominium building known as Parkview Manor in Roselle. CAU is a not-for-profit organization that provides residential housing for disabled individuals through a contract with the New Jersey Department of Human Services, Division of Developmental Disabilities (DDD). Since the early 1990s, CAU has owned several units in Parkview Manor for the purpose of providing DDD with "supervised apartments" in which to place eligible individuals with disabilities pursuant to N.J.S.A. 30:11B-1. CAU provided apartments and services in Parkview Manor to the four individuals who were originally plaintiffs with CAU in this lawsuit.

Defendant purchased her unit in Parkview Manor in 1995 and became a member of the Board of Directors of the Parkview Manor Condominium Association in 1996. CAU owned eight units in the building at that time and one of its employees served as a member of the Board.

The events giving rise to this lawsuit occurred ten years later, in 2006, shortly after defendant was elected as president of the condominium association. Sidney Blanchard, the Executive Director of CAU, submitted a certification to the trial court in which he stated that shortly after defendant was elected president, he became "concerned about the competence and probity of the Association Board" and, in the months following, mounted an effort "to remove Defendant Rockcliffe and her Board and to install a new Board at Parkview."

In May 2007, defendant, as president of the condominium association, wrote a letter to DDD alleging that CAU was failing in its duties of caring for DDD's disabled clients residing at Parkview Manor. Defendant alleged that the CAU residents caused an assortment of problems at Parkview Manor; they denied those allegations. In June 2007, Blanchard succeeded in calling a special election in which defendant was voted off the Board and he was installed as president of the condominium association.

On October 4, 2007, CAU and four residents of Parkview Manor for whom CAU provided services, sued defendant in the Law Division alleging acts of discrimination, defamation, false light, intentional infliction of emotional distress, and bias crimes, claiming that she had engaged in a campaign of harassment and abuse of the individual plaintiffs in retaliation for Blanchard's efforts to remove her from the Parkview Board and that she simply did not like living in the same building with disabled individuals. Later that same month, the condominium association sued defendant in the Special Civil Part to recover association fees of approximately $1,500 defendant had spent to retain counsel to defend against Blanchard's efforts to remove the association's former Board. The association voluntarily dismissed the Special Civil Part action against defendant after the association recovered the fees from other unit owners.

Defendant answered the Law Division complaint, filing a counterclaim and, eventually, a third-party complaint against Blanchard claiming that plaintiffs' complaint constituted a SLAPP suit (strategic litigation against public participation) filed in retaliation for her letter to DDD and including counts of "malicious civil prosecution," abuse of process, breach of fiduciary duty, ultra vires actions, and nuisance.

The case was aggressively litigated on both sides and the parties engaged in several rounds of motions. Blanchard, sued both individually and as executive director of CAU, succeeded in having the third-party complaint against him dismissed. Defendant was successful in having several counts of CAU's complaint dismissed for lack of standing and in moving to have a guardian ad litem appointed for the individual plaintiffs pursuant to Rule 4:26-2(b)3. The guardian ad litem subsequently consented to the dismissal of all of the individual plaintiffs' claims without prejudice.*fn3

By orders of September 16, 2010, the court granted CAU's motion for summary judgment on defendant's counterclaims of malicious use of process, abuse of process, ultra vires acts, and nuisance, and granted defendant's cross-motion for summary judgment on CAU's claims under the LAD. On February 4, 2011, the trial court granted summary judgment to CAU on defendant's claim for breach of fiduciary duty, thus rendering judgment to CAU on all counts of defendant's counterclaim. On March 2, 2011, the trial court granted CAU's motion to quash a subpoena defendant served on plaintiffs' prior litigation counsel. On April 1, 2011, the trial court granted plaintiffs' motion to dismiss all remaining claims against defendant with prejudice. Defendant dismissed the last remaining count of her counterclaim, count four alleging nuisance against the individual plaintiffs, on the trial date. This appeal followed.

Initially, we note that the trial court's order of April 1, 2011 on plaintiffs' motion dismissing plaintiffs' remaining claims with prejudice, moots defendant's argument in Point Two of her brief that the trial court incorrectly decided defendant's motions for summary judgment on the complaint. See Caput Mortuum, L.L.C. v. S & S Crown Servs., Ltd., 366 N.J. Super. 323, 330 (App. Div. 2004) ("A case is moot if the disputed issue has been resolved, at least with respect to the parties who instituted the litigation."). Likewise, the April 1, 2011 order moots defendant's claim that the trial judge incorrectly quashed her subpoena to plaintiffs' former litigation counsel. Defendant sought the deposition of plaintiffs' prior litigation counsel only in connection with the affirmative claims plaintiffs pressed in this suit. All of those claims have now been dismissed with prejudice. Accordingly, we confine our discussion to defendant's remaining contentions, that the motion judge erred in granting summary judgment to CAU on her counterclaims.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We review the trial court's grant of plaintiff's motion for summary judgment de novo, applying the same legal standard as the trial court under Rule 4:46-2(c). Antheunisse v. Tiffany & Co., Inc., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). On this appeal, we accept defendant's version of plaintiffs' conduct as true and give defendant the benefit of all reasonable inferences from the facts. Baliko v. Stecker, 275 N.J. Super. 182, 186 (App. Div. 1994). If there is no genuine issue of material fact, we decide whether the trial court's ruling on the law was correct. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Defendant's claims of error on her counterclaims for malicious use of process, abuse of process, breach of fiduciary duty, and ultra vires acts are all easily dispatched because they all spring from a common mis-identification of plaintiffs as members of the Board of Directors of the Parkview Manor Condominium Association. Throughout her counterclaim and third-party complaint, defendant alleges that "plaintiffs and Blanchard" caused the association's Special Civil Part complaint to be filed against her, owed her fiduciary duties by virtue of "CAU and/or Blanchard hav[ing] had representative(s) on the Board of the Association," failed to act in a manner consistent with their fiduciary obligations by taking over the Board of the association and making decisions for the sole benefit of CAU and Blanchard, and that their actions in taking over the Board and acting "against the interests of the non-disabled residents, constitutes an ultra vires action." It is undisputed, however, that neither CAU nor the individual plaintiffs were members of the Board of the association and that the trial court dismissed all claims against Blanchard both individually and as executive director of CAU. Defendant has not challenged that ruling on this appeal. Accordingly, we agree with the trial court that defendant's claims for breach of fiduciary duty and ultra vires acts do not lie against CAU or the individual plaintiffs as they were never members of the association's Board of Directors and thus owed no fiduciary duties to defendant and could not act ultra vires of the association's enumerated powers.*fn4

Defendant's claims for malicious use of process and abuse of process fail for similar reasons. Defendant was sued in the Special Civil Part by the association. Neither CAU nor the individual plaintiffs were ever members of the association Board. They are not, therefore, amenable to a claim of malicious use of process or abuse of process arising out of the association's prior suit against defendant. Thus to the extent that the claims for malicious use of process or abuse of process arise out of the prior Special Civil Part action, they are barred because misdirected against these plaintiffs.

Defendant also alleged, however, that this action was filed as a SLAPP suit and constitutes malicious use of process and abuse of process. The motion judge correctly noted the difference between malicious use of process and abuse of process claims. As we explained in Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 431 (App. Div. 2009), "[t]he tort of malicious abuse of process lies not for commencing an improper action," as in a malicious use of process claim, "but for misusing or misapplying process after it is issued." Accordingly, for there to be "abuse" of process, a party must "use" process, such as attachment, garnishment, execution, and the like, in an illegitimate fashion. Id. at 431-32. We agree with the trial judge that the only evidence defendant adduced on the motion related to the filing of this lawsuit, not the misuse of any subsequently issued process. Accordingly, the court properly entered summary judgment against defendant on her abuse of process claim. See Pennwag Property Co., Inc. v. Landau, 148 N.J. Super. 493 (App. Div. 1977), aff'd, 76 N.J. 595 (1978) (even litigation inspired by malicious or other improper motive is, in itself, insufficient to sustain complaint for abuse of process).

The motion judge was likewise correct in granting summary judgment against defendant on her counterclaim for malicious use of process arising out of this action. Accepting as true defendant's allegation that plaintiffs' complaint against her constituted a SLAPP suit, the law is well-settled that she may not "SLAPP-back" by way of counterclaim, but instead must wait until the alleged SLAPP suit has terminated in her favor to sue her alleged wrongdoer. LoBiondo v. Schwartz, 199 N.J. 62, 90-92 (2009); Pennwag, supra, 76 N.J. at 598.*fn5

Finally, we agree that summary judgment was appropriately entered against defendant on her nuisance claim against CAU, although for reasons additional to those expressed by the trial judge. In her counterclaim, defendant asserted that CAU or Blanchard was responsible for the conduct of the individual plaintiffs under the doctrine of respondeat superior. In her written opinion, the motion judge correctly rejected the applicability of the doctrine to the relationship between CAU and the individual plaintiffs and granted summary judgment to CAU on defendant's nuisance claims. On appeal, defendant criticizes the trial court's focus on respondeat superior because it is an "employment law doctrine that is inapposite to this case." We agree, but as it was the theory upon which defendant predicated her counterclaim of nuisance against CAU, we do not fault the trial judge for her "focus" on the doctrine.

Although at common law, a landlord is not ordinarily liable to third persons for a nuisance created on his premises by the tenant during the term of the lease, Wasilewski v. McGuire Art Shop, 117 N.J.L. 264, 266-67 (Sup. Ct. 1936), he is responsible for nuisances he creates himself. Longi v. Raymond-Commerce Corp., 34 N.J. Super. 593, 602 (App. Div. 1955). Thus, given CAU's relation to the individual plaintiffs, it is possible that defendant may have been able to state a cause of action for nuisance against CAU under a theory other than respondeat superior.

More modern cases arising in the context of condominium ownership are often grounded in the association's governing documents rather than in common law theories of nuisance. See, e.g., Finderne Heights Condo. Ass'n. v. Rabinowitz, 390 N.J. Super. 154 (App. Div. 2007)(condominium association's suit against unit owner and tenant to enjoin a nuisance created by tenant in violation of association's governing documents). Such cases also make clear, however, that it is the association which is charged with the "maintenance, repair, replacement, cleaning and sanitation of the common elements." N.J.S.A. 46:8B-14(a); Siller v. Hartz Mountain Assocs., 93 N.J. 370, 376, cert. denied, 464 U.S. 961, 104 S. Ct. 395, 78 L. Ed. 2d 337 (1983).*fn6

Further speculation on this point is impossible because neither the plaintiffs' leases nor the association's governing documents have been made part of the record, and unnecessary because we agree that defendant failed to sustain her claim of nuisance against CAU regardless of her theory of liability.

A nuisance is an unreasonable interference with the private use and enjoyment of one's land. Sans v. Ramsey Golf & Country Club, 29 N.J. 438, 448 (1959). The conduct of a nuisance case, which most often entails injunctive relief, either exclusively or in addition to damages, ordinarily involves plaintiff putting on proofs to establish defendant's unreasonable use of his property and its deleterious effect on plaintiff's enjoyment of his own property. The court must then balance the conflicting interests, recognizing the reciprocal rights of each to reasonable use. Id. at 449. Plaintiff must, of course, establish that defendant's conduct constitutes a nuisance under the circumstances, Cahill v. Heckel, 87 N.J. Super. 201, 204 (Ch. Div. 1965), and, if seeking damages, that she suffered economic loss. Protokowicz v. Lesofski, 69 N.J. Super. 436, 446 (Ch. Div. 1961).

Here, defendant made no claim for any injunctive relief. Leaving aside whether defendant could demonstrate that the conduct complained of rose to the level of nuisance, (and that she was the proper party to assert such claims), it is undisputed that defendant failed to present any evidence of economic loss on the motion for summary judgment. As defendant sought damages, and not injunctive relief, her failure to adduce proof of any economic damage is fatal to her nuisance claim.


Affirmed and modified.

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