VICTORINE G. VISCONTI VS. LAKE WALLKILL COMMUNITY, INC.(C-000023-14, SUSSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3803-15T3

VICTORINE G. VISCONTI,
Individually, and as
Executrix of the Estate
of MICHAEL P. VISCONTI,
deceased; MICHAEL C. VISCONTI,
PATRICK J. VISCONTI,
and LAURA VISCONTI,

Plaintiffs-Appellants/
Cross-Respondents,

v.

LAKE WALLKILL COMMUNITY,
INC., a Corporation of the
State of New Jersey,

Defendant-Respondent/
Cross-Appellant.

______________________________

Argued September 12, 2017 – Decided October 4, 2017

Before Judges Reisner, Hoffman, and Mayer.

On appeal from the Superior Court of New
Jersey, Chancery Division, Sussex County,
Docket No. C-000023-14.

Stephen J. McGee argued the cause for
appellants/cross-respondents.

Walter F. Kawalec, III, argued the cause for
respondent/cross-appellant, as to the appeal;
 Eileen McCarthy Born argued the cause for
respondent/cross-appellant as to the cross-
appeal (Marshall Dennehey Warner Coleman &
Goggin, and Dolan and Dolan, PA, attorneys;
Mr. Kawalec, Ms. Born, and Julie B. Dorfman,
on the briefs).

PER CURIAM

This case involves a dispute between defendant Lake Wallkill

Community, Inc. (the Community), a common interest community, and

several plaintiffs-homeowners, who contested their obligation to

pay annual dues1 and filed an action to discharge liens the

Community placed on their property. The Community cross-claimed,

seeking a judgment for the delinquent dues and collection costs.

Plaintiffs appeal from the March 28, 2016 judgment in

defendant's favor, arguing that: the Community had no legal or

equitable right to file the liens, the filing violated their due

process rights, the statute of limitations barred the Community's

claims, the judge erred in making certain discretionary rulings

concerning a proposed amended complaint, discovery, and

introduction of evidence, and plaintiffs are entitled to counsel

fees. Defendant cross-appeals, arguing that: the trial court

should have awarded a larger judgment against plaintiff Michael

1
In addition to the annual dues, the Community imposed occasional
special assessments and fees, all of which were needed to pay for
the upkeep of the development's common property. We refer to the
dues, assessments and fees collectively as "dues."

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C. Visconti, and the trial court mistakenly failed to consider its

claim for costs including counsel fees. On the appeal and cross-

appeal, we affirm the judgment as to the amount of dues owed by

each plaintiff.2 However, we remand on defendant's claim for

counsel fees and other costs, because the trial court inadvertently

failed to address that issue.

After reviewing the record, including the transcripts of the

bench trial, we find no basis to second-guess the trial judge's

factual findings and evaluation of witness credibility. See Rova

Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 483-84

(1974). With the exception of the counsel fee issue, we affirm

the March 28, 2016 order, substantially for the reasons stated in

the judge's written opinion issued with the order. We affirm the

order denying plaintiffs' motion to amend their complaint, shortly

before the trial, for the reasons stated in the judge's December

21, 2015 oral opinion. We decline to address plaintiffs' statute

of limitations argument, because it was not raised in the trial

court. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234

(1973). Except as briefly discussed below, the parties' remaining

2
At oral argument of this appeal, plaintiffs' counsel confirmed
that plaintiffs do not contest defendant's mathematical
calculation of the dues they owe. Rather, plaintiffs contest
their legal obligation to pay those amounts. There is also no
dispute that the Community gave plaintiffs notice of its intent
to file the liens before it filed them.

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appellate arguments are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

The essential facts are detailed in the trial court's opinion

and can be summarized briefly here. The Community is a private

development consisting of homes and roadways surrounding a

privately owned lake. When the Community was incorporated in the

late 1920s, it was supported by dues paid by those homeowners who

voluntarily chose to join a private club or lake association.

However, in 2000, the Community's governing body (the Management

Committee) amended the by-laws to make association membership -

and the corresponding obligation to pay annual dues - mandatory

for all homeowners.3

The trial judge found that, with the exception of Michael C.

Visconti,4 all of the named plaintiffs (Victorine and her husband

Michael P. Visconti and Patrick and his wife Laura Visconti)

voluntarily joined the association as members in the 1990s. The

membership application included a commitment to pay dues and an

agreement that the Community could place a lien on the member's

3
According to the trial judge's written opinion, the 2000 by-law
amendment was challenged and upheld in previous litigation.
4
For clarity, and meaning no disrespect, we will refer to this
plaintiff as Michael C., to distinguish him from his father,
Michael P. Visconti. The father passed away while this lawsuit
was pending, and his estate's executrix was substituted as a
plaintiff.

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property for unpaid dues. The Community by-laws effective in the

1990s also provided that unpaid dues would become a lien on the

delinquent owner's property.

The judge did not find credible testimony from Victorine and

Patrick Visconti that they and their spouses resigned their

memberships in 2002 and 2003. Based on our review of the record,

the judge's factual findings on that point are supported by

sufficient credible evidence. See Rova Farms, supra, 65 N.J. at

483-84. We agree with the judge that those plaintiffs were

obligated to pay the dues because they joined the association and

did not resign their memberships. Further, by signing the

membership agreement, they agreed that the unpaid dues would become

a lien on their properties.

We also agree with the trial judge that the Management

Committee was authorized to amend the by-laws in 2000 to require

all homeowners to contribute to the maintenance of the Community.

It is by now well-established that a common interest community can

require all of its homeowners to pay an assessment for road

maintenance, upkeep of the lake and other amenities that community

members have a right to use. See Highland Lakes Country Club &

Community Assoc. v. Franzino, 186 N.J. 99, 111 (2006); Lake

Lookover Prop. Owner's Ass'n v. Olsen, 348 N.J. Super. 53, 65-67

(App. Div. 2002); Paulinskill Lake Assoc. v. Emmich, 165 N.J.

5 A-3803-15T3
Super. 43, 45-46 (App. Div. 1978); Island Improv. Assoc. v. Ford,

155 N.J. Super. 571, 574-75 (App. Div. 1978). See also Restatement

of the Law (Third) Property: Servitudes §§ 6.2, 6.5 comment (b)

(2000). Therefore, we concur in the judge's conclusion that, even

if the four plaintiffs had attempted to resign, they could not

have done so – and could not have avoided their obligation to pay

the dues - after the by-laws were amended in 2000. For the same

reason, it is irrelevant that Michael C. did not voluntarily become

an association member when he bought his home in 2010; by that

time, the by-laws required that he join and pay the dues. Further,

at the time the liens were filed against all plaintiffs, including

Michael C., lien filings were authorized by a resolution of the

Management Committee. We affirm on plaintiffs' appeal.

On the cross-appeal with respect to Michael C., we agree with

the trial judge that Michael C. took ownership of his property

without notice of the debt for past dues owed by his predecessor

in title, his brother Peter Visconti. As the Court noted in

Highland Lakes, supra, 186 N.J. at 112: "Subsequent bona fide

purchasers of property encumbered with an equitable lien take

'subject to the rights of the equitable lienor,' provided there

is notice of the lien." (quoting 51 Am. Jur. 2d Liens § 18 (2000)).

However, in this case, the Community did not record a lien against

the property while Peter owned it, so as to give notice to a

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prospective purchaser in 2010. Nor were the by-laws themselves

recorded. Moreover, unlike the situation in Highland Lakes, supra,

186 N.J. at 104, neither a master deed nor Michael C.'s individual

deed required membership in the Community or required him to comply

with the by-laws. See also id. at 110-12. Accordingly, we agree

with the trial court that, in the factual circumstances of this

case, there was insufficient notice to Michael C. to warrant

finding that Peter's delinquent dues became Michael C.'s personal

debt. Accordingly, the Community could not obtain a judgment

against Michael C. for that amount.5

We next address the cross-appeal concerning the collection

fees.6 A 2014 resolution of the Management Committee authorized

the Community to charge collection costs associated with enforcing

delinquent assessments. The liens defendant recorded against each

plaintiff's property included counsel fees and other collection

costs.

5
Neither the judge's opinion and order, nor the parties' briefs,
address whether the Community has any recourse against Michael C.
other than obtaining a personal judgment for Peter's unpaid dues.
Accordingly, we do not address the issue. Because Peter is not a
party here, we also do not address the remedies the Community may
have against him.
6
Contrary to plaintiffs' appellate argument, the fee issue was
clearly placed before the trial court. In her opening statement,
the Community's attorney stated that her client was seeking "late
payment charges, interest, and attorneys fees." The issue was
also addressed in trial testimony.

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 As to all plaintiffs except Michael C., the trial court's

order recited that it awarded "the full amount" of defendant's

liens. However, the specific monetary amounts of the judgments,

including the judgment against Michael C., did not include the

sums attributable to the collection costs. Nor did the trial

court's opinion address the issue. Accordingly, we remand this

matter to the trial court for the limited purpose of addressing

defendant's claim against each plaintiff for counsel fees and

other costs.

Affirmed in part, remanded in part. We do not retain

jurisdiction.

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