NOT FOR PUBLICATION WITHOUT THE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-3387-18T2
GOVERNOR'S POINTE
VILLAGE II CONDOMINIUM
ASSOCIATION, INC.,
Plaintiff-Appellant,
v.
MONIQUE GREENE,
Defendant-Respondent.
____________________________
Submitted December 9, 2019 – Decided February 28, 2020
Before Judges Messano and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-4649-18.
Cutolo Barros LLC, attorneys for appellant (Carla
Zappi and Joseph A. Kutschman, on the brief).
Respondent has not filed a brief.
PER CURIAM
This appeal arises from a civil action brought to collect past due
condominium association fees. Appellant, Governor's Pointe Village II
Condominium Association, Inc., appeals from the trial court's denial of
attorney's fees following the award of a default judgment in the amount of
$7197.48 against respondent, Monique Green. Specifically, appellant sought
$6884 in attorney fees and costs reflecting forty-one claimed hours of
professional work. The trial court found that request was not reasonable in light
of the amount of the judgment and the limited nature of the proceedings in which
defendant did not contest the complaint.
Appellant contends the trial court abused its discretion in declining to
award any attorney fees at all. Because the trial court expressly acknowledged
that appellant is entitled to an award of reasonable counsel fees, we are
constrained to remand this matter for the trial court to determine that amount.
I.
We begin our analysis by acknowledging the legal principles governing
this appeal. Generally, "a prevailing party can recover [attorney's] fees if they
are expressly provided for by statute, court rule, or contract." Packard-
Bamberger & Co. v. Collier, 167 N.J. 427, 440 (2001) (citing Dep't of Envtl.
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Prot. v. Ventron Corp., 94 N.J. 473, 504 (1983)). In this instance, the
Condominium Act provides:
The association shall have a lien on each unit for any
unpaid assessment duly made by the association for a
share of common expenses or otherwise, including any
other moneys duly owed the association, upon proper
notice to the appropriate unit owner, together with
interest thereon and any late fees, fines, expenses, and
reasonable attorney's fees imposed or incurred in the
collection of the unpaid assessment.
[N.J.S.A. 46:8B-21(a) (emphasis added).]
A party entitled to attorney's fees under this Act "need only demonstrate that
either the Master Deed or the By-Laws of [an] Association provide for an award
of attorney[']s fees in an action to collect overdue assessments." 1 Holbert v.
Great Gorge Vill. S. Condo. Council, Inc., 281 N.J. Super. 222, 229 (Ch. Div.
1994).
As a general proposition, we "grant substantial deference" when
reviewing "a trial court's conclusions in a non-jury civil action." Lanzi v. North,
295 N.J. Super. 80, 84 (App. Div. 1996). More specifically, "fee determinations
by trial courts will be disturbed only on the rarest of occasions, and then only
1
Plaintiff's Master Deed, Section 5.11 provides that the plaintiff can "proceed
[personally] against any delinquent Unit Owner for the recovery of a personal
judgment for the amount due, court costs and reasonable attorney's fees."
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because of a clear abuse of discretion." Packard-Bamberger & Co., 167 N.J. at
444 (quoting Rendine v. Pantzer, 141 N.J. 292, 317 (1995)). "An abuse of
discretion 'arises when a decision is "made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis."'" Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012)
(quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).
II.
The present complaint was filed in August 2018 and default judgment was
entered in March 2019. As the trial court noted in its amplification letter
submitted to us pursuant to Rule 2:5-1(b), the same parties were involved in
prior foreclosure litigation in 2015. The trial court explained:
This court attempted to reconcile all of the
documentation provided in order to make a
determination as to a reasonable award of counsel fees
and simply was unable to do so. The court found that a
request for counsel fees in connection with the [2015]
foreclosure matter, which commenced almost four
years ago, would have been more appropriately made
in the context of that proceeding[,] as this court had no
involvement in that matter.
We believe the trial court acted within its discretion in concluding that
appellant is only entitled to attorney fees and costs for the work performed on
the current litigation, not for work performed with respect to the 2015
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4
foreclosure action. Even if the two matters are related, we agree with the trial
court that any application for counsel fees associated with the 2015 foreclosure
action should have been sought in that matter.
Having said that, we also agree with the trial court's statement in its
amplification letter that, "[p]laintiff was entitled to an award of reasonable
counsel fees in connection with this matter," referring to the complaint filed in
2018 resulting in default judgment in 2019. In view of that acknowledgement,
we agree that some attorney fees are appropriate, even if appellant sought more
than it is reasonably entitled to.
The substantial deference we accord to a trial court's fee determination,
Packard-Bamberger & Co., 167 N.J. at 444, presupposes the trial judge
determined a specific fee. In this instance, the trial court determined some
attorney fee was warranted but failed to determine a specific amount. We
believe this case presents one of the rare occasions when appellate intervention
is appropriate. Ibid.
We appreciate the difficulty the trial court had in reconciling the
documentation submitted by appellant. The task nonetheless remains to arrive
at a reasonable amount of fees. We deem it inappropriate for us to exercise
original jurisdiction to determine that amount. See Price v. Himeji, LLC, 214
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N.J. 263, 294–96 (2013) (explaining that Rule 2:10-5 "allow[s an] appellate
court to exercise original jurisdiction to eliminate unnecessary further litigation
but discourage[s] its use if factfinding is involved." (alterations in original)
(quoting State v. Santos, 210 N.J. 129, 142 (2012))); see also Tomaino v.
Burman, 364 N.J. Super. 224, 234–35 (App. Div. 2003) (opining that appellate
courts should exercise original jurisdiction "only 'with great frugality'" (quoting
In re Boardwalk Regency Casino License Application, 180 N.J. Super. 324, 334
(App. Div. 1981))). The trial court is in a better position than we are to review
the appellant's submissions and determine the reasonableness of professional
services rendered to obtain the default judgment in this case. See State v. S.S.,
229 N.J. 360, 379–81 (2017) (holding that an appellate court is simply not as
experienced nor as capable as the trial court at making credibility assessments
or factual findings).
To assist the trial court in determining the appropriate amount of counsel
fees to award, the court in its discretion may direct appellant to submit additional
materials documenting and itemizing the work performed solely with respect to
prosecuting the complaint filed in 2018. Nothing in this opinion should be
construed to limit the trial court's broad discretion in determining whether
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6
reimbursement for a claimed item of professional work is reasonable
considering that the 2018 complaint was uncontested.
We add for purposes of facilitating the remand that appellant contends that
the trial court misread invoices by crediting respondent, rather than appellant,
for making payment to the attorney. It appears appellant may be correct. 2 The
trial court on remand should consider this argument when determining a
reasonable amount of attorney fees to award.
Finally, we note that appellant's argument that the trial court showed bias
against it lacks sufficient merit to warrant discussion in this opinion. Rule 2:11-
3(e)(1)(E).
Reversed and remanded. We do not retain jurisdiction.
2
The trial court lists specific dates and amounts that appear on the invoices in
the record, in one instance commenting "[t]he debtor made another payment of
$50.00 for which she was given credit." However, the invoices are addressed to
appellant and appellant's property manager. Further, the use of "she" seems to
indicate that the trial court was referring to respondent, conflating who was
paying the legal invoices.
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