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

April 26, 2012

COMMUNITY ACCESS UNLIMITED, A.H., M.W., M.B., AND D.P.,*FN1 PLAINTIFFS-RESPONDENTS,
v.
MICHELLE ROCKCLIFFE, DEFENDANT-APPELLANT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 ...


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