NOT FOR PUBLICATION WITHOUT THE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-3338-16T2
JEROME MCCANN, MARY ANN VASTINO,
and ERIN MCGOWAN,
Plaintiffs-Respondents,
v.
WHITEHALL MANOR CONDOMINIUM
ASSOCIATION, INC.,
Defendant-Appellant.
___________________________________
Submitted June 5, 2018 – Decided June 29, 2018
Before Judges Mayer and Mitterhoff.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Docket No.
L-1581-16.
Law Offices of Jeffrey S. Mandel, LLC,
attorneys for appellant (Jeffrey S. Mandel,
of counsel and on the briefs).
Anthony X. Arturi, attorney for respondents.
PER CURIAM
Defendant Whitehall Manor Condominium Association, Inc. (the
Association) appeals from a March 3, 2017 order entering judgment
in favor of plaintiffs Jerome McCann, Mary Ann Vastino, and Erin
McGowan1 (former board members). We vacate the order and remand
to the trial court for further proceedings.
A detailed factual recitation is not required as our
determination is premised solely upon procedural grounds.
Briefly, the Association filed suit against the former board
members seeking access to an e-mail account used for Association
business. Subsequent to the resolution of the Association's
lawsuit, the former board members filed a complaint seeking
attorney's fees. The former board members alleged that, pursuant
to the Association's by-laws, they were entitled to
indemnification for legal fees incurred in defending against the
Association's lawsuit.
The former board members filed an order to show cause (OTSC)
in conjunction with their complaint. The December 16, 2016 OTSC,
as signed by the judge, indicated that the matter was to "proceed
as a summary proceeding pursuant to Rule 4:67-1(b)" and that the
Association must show cause "why an [o]rder should not be entered
converting this matter to a summary proceeding pursuant to R.
1
Plaintiffs were elected to serve as members of the Association's
governing board and decided not to seek re-election.
2 A-3338-16T2
4:67-1(b)" on the scheduled return date.2 On January 30, 2017,
the Association filed opposition to the OTSC, stating the matter
required discovery and the Association did not consent to
proceeding summarily.
On the OTSC return date, the judge heard oral argument. The
former board members requested the case proceed summarily, arguing
that discovery and testimony were not required to adjudicate their
claim. The Association responded that it required discovery and
that the matter should not be decided before the Association had
the opportunity to set forth its affirmative defenses and
counterclaims.
On February 8, 2017, the judge decided the merits of the
complaint, finding the former board members were entitled to
indemnification. After the judge rendered her decision, the
Association's counsel stated:
I was unaware that the [c]ourt was going to
be considering the underlying relief at the
hearing today . . . . [T]he Association's
understanding was that a trial date would be
set today, the Association would have an
opportunity to respond to the pleadings rather
than deciding the underlying relief prior to
the Association even having filed its
responsive pleading.
2
The OTSC was adjourned to February 8, 2017, at the request of
counsel for the Association.
3 A-3338-16T2
The judge reserved decision only as to the amount of fees to
be awarded to the former board members, requesting the submission
of an affidavit of services. On March 3, 2017, the judge entered
an order awarding the former board members attorney's fees in the
amount of $31,108.39.
We review legal determinations based on an interpretation
of the court rules de novo. In re Referendum to Repeal Ordinance
2354-12 of West Orange, 223 N.J. 589, 596 (2015). A trial court's
interpretation of a court rule is not entitled to any special
deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140
N.J. 366, 378 (1995).
Rule 4:67-1(b) is applicable to
actions in the Superior Court other than
matrimonial actions and actions in which
unliquidated monetary damages are sought,
provided it appears to the court, on motion
made pursuant to R. 1:6-3 and on notice to the
other parties to the action not in default,
that it is likely that the matter may be
completely disposed of in a summary manner.
[R. 4:67-1(b).]
The summary action rule is designed
to accomplish the salutary purpose of swiftly
and effectively disposing of matters which
lend themselves to summary treatment while at
the same time giving the defendant an
opportunity to be heard at the time plaintiff
makes his [or her] application on the question
of whether or not summary disposition is
appropriate.
4 A-3338-16T2
[Pressler & Verniero, Current N.J. Court
Rules, cmt. 1 on R. 4:67-1 (2018).]
"Th[e] procedural requirements [of Rule 4:67-1(b)] serve
important objectives: to permit the presentation of a factual
record and legal arguments to the court, and to ensure that the
parties anticipate and address the standard for summary
disposition before the court decides whether to grant that relief."
Grabowsky v. Twp. of Montclair, 221 N.J. 536, 550 (2015). Summary
disposition is only appropriate "when the parties understand and
consent to a summary disposition of their disputes." Waste Mgmt.
of N.J., Inc. v. Union Cty. Utils. Auth., 399 N.J. Super. 508,
518-19 (App. Div. 2008) (reversing a final judgment entered on the
return date of an order to show cause, finding no "clear and
unambiguous statement from the judge [or] unequivocal consent of
the parties to a final resolution.")
Rule 4:67-1(b) requires that a party file a motion to proceed
in a summary manner. Alternatively, consistent with the case law,
both parties may consent to summary disposition. See Grabowsky,
221 N.J. at 547. Here, there was no motion filed by the former
board members to proceed summarily, and the Association did not
consent to summary disposition. Indeed, both counsel believed
that the issue to be decided on the return date of the OTSC was
whether the matter would proceed summarily. The Association's
5 A-3338-16T2
counsel lodged his objection to proceeding summarily and
unequivocally stated that the Association did not consent to
summary disposition of the action. As the Association did not
consent to proceeding summarily and the former board members failed
to file a motion to proceed in such a manner, we are constrained
to vacate the March 3, 2017 order and remand the matter to the
trial court. On remand, the trial court should permit the parties
to argue why the matter should, or should not, proceed summarily,
and allow the Association to file an answer, affirmative defenses,
and counterclaim, and engage in any discovery that may be necessary
to adjudicate the matter on the merits.
The Association raises other issues on appeal. We need not
decide those issues based on our decision to vacate and remand the
matter to the trial court. On remand, we do not suggest the
outcome of the matter on the merits.
Vacated and remanded. We do not retain jurisdiction.
6 A-3338-16T2