BONNIE GLOGOVER VS. HUDSON HARBOUR CONDOMINIUM ASSOCIATION, INC. (C-000320-17, BERGEN 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NOT FOR PUBLICATION WITHOUT THE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-3446-18T3

BONNIE GLOGOVER,

Plaintiff-Appellant

v.

HUDSON HARBOUR
CONDOMINIUM ASSOCIATION,
INC. and CUTOLO BARROS, LLC,

Defendants-Respondents
______________________________

Argued telephonically September 15, 2020 –
Decided September 29, 2020

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey,
Chancery Division, Bergen County, Docket No. C-
000320-17.

Scott B. Piekarsky argued the cause for appellant
(Phillips Nizer LLP, attorneys; Scott B. Piekarsky, of
counsel; Ernest W. Schoellkopff, on the briefs).

Christian M. Scheuerman argued the cause for
respondent Hudson Harbour Condominium
Association, Inc. (Marks, O'Neill, O'Brien, Doherty &
 Kelly, PC, attorneys; Christian M. Scheuerman, on the
brief).

Gregg S. Sodini argued the cause for pro se respondent
Cutolo Barros, LLC.

PER CURIAM

This appeal arises out of a dispute between plaintiff Bonnie Glogover, a

unit owner at the Hudson Harbour condominium building in Edgewater, and

defendants Hudson Harbour Condominium Association, Inc. (Association) and

its law firm, Cutolo Barros, LLC (Cutolo), after Cutolo attempted to collect

unpaid monthly charges for cable television service from plaintiff on behalf of

the Association.

After participating in an alternative dispute resolution (ADR) procedure

provided by the Association's by-laws, plaintiff initiated an action in the

Chancery Division claiming that the Association's collection efforts breached a

prior settlement agreement and violated the Condominium Act, N.J.S.A. 46:8-1

to -38. Plaintiff further claimed that she was defamed, suffered adverse health

effects, and was denied credit. Finally, plaintiff alleged Cutolo's actions

violated the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692-

1692p.

A-3446-18T3
2
 In a November 28, 2018 order, the trial court granted summary judgment

to the Association and Cutolo and dismissed plaintiff's claims. In a separate

March 26, 2019 order, it also awarded the Association $32,249.81 in attorneys'

fees and costs. After carefully reviewing the record and considering the

applicable legal principles, we affirm the November 28, 2018 order but vacate

the March 26, 2019 order in part and remand for further proceedings.

I.

Plaintiff owns a condominium at Hudson Harbour and has resided there

for nearly thirty years. The master deed defines common expenses as "all costs

and expenses to be incurred generally by the [u]nit [o]wners pursuant to this

[m]aster [d]eed and/or the [b]y-laws in connection with . . . the . . . operation of,

and any alteration, addition, or improvement to, the [c]ommon [e]lements . . .

[and] the conduct of the affairs of the [c]ondominium." The master deed further

provides that the common elements include "all central and appurtenant

installations and facilities for services such as . . . telephone [and] cable

television." Moreover, under the Association's by-laws, the Board had the

power to "employ or contract for water and sewer, electricity and gas, or other

forms of utilities, cable, or master antenna television."

A-3446-18T3
3
 On September 1, 2009, the Association entered into a contract (2009

Agreement) with Time Warner Cable (TWC) to supply cable television service

to all units in the building at a reduced rate of $42.88 per unit per month, which

would "remain in full force and effect for three . . . year[s]." After informing

all residents that they would be charged accordingly, plaintiff disputed the

expense claiming she did not utilize the service. To resolve the dispute, the

Association agreed in a June 15, 2010 confidential settlement agreement (CSA)

that plaintiff would "not be liable for any cable television charges for the entire

term of the [2009 Agreement] if she chooses not to utilize same."

The Association and TWC subsequently entered into a December 1, 2011

agreement to provide cable television services to all units in defendant's building

for $45.77 per unit (2011 Agreement). The 2011 Agreement remained in effect

for four years and further provided that it "contains the entire understanding and

agreement between the parties . . . and supersedes any prior agreements,

promises, proposals, representations, understandings and negotiations, whether

written or oral, between the parties."

Finally, the Association and TWC entered into a November 1, 2014

service and marketing agreement (2014 Agreement) whereby TWC agreed to

provide residents with cable television, high-speed internet, and phone service.

A-3446-18T3
4
The 2014 Agreement contained a similar provision as the 2011 Agreement

stating that "[t]his Agreement constitutes the entire agreement between [the

Association] and [TWC] with respect to, and supersedes all other agreements

relating to, the subject matter contained herein." The 2014 Agreement expired

after five years and continued in effect for successive one-year periods, unless

either party notified the other that it sought to terminate the 2014 Agreement.

Prior to the Association's collection efforts, it passed a March 4, 2014

resolution that declared parking a privilege and stated that "[i]f a [u]nit [o]wner

is delinquent in the payment of any assessment to the Association for more than

[sixty] days . . . [they] shall have their parking privileges revoked." Similarly,

the resolution provided that if a unit owner was "delinquent in the payment of

any assessment to the Association for more than [sixty] days . . . [they] shall

have their rights to use and enjoy the common elements suspended, including

the right to use the gym, pool, cable, and other non-essential [c]ondominium

amenities such as the concierge with regard to deliveries at the front d esk."

Nearly two years after the Association passed the resolution, Cutolo

informed plaintiff in a February 1, 2016 letter that she owed the Association

$371.48 as a result of her failure to remit payment for her monthly cable bill.

Cutolo instructed plaintiff that the Association could "suspend [her] services

A-3446-18T3
5
including but not limited to cable services and parking privileges" in the event

payment was not received.

The correspondence also informed plaintiff of her "opportunity for [ADR]

in the event [she] dispute[d] this debt and request[ed] ADR in writing." This

was consistent with the Association's by-laws which stated that an ADR

Committee had the "right to resolve disputes" that arose under and to enforce

the rules and regulations of the Association. The by-laws further stated that

"any [o]wner who is aggrieved by any decision of the ADR Committee shall

have the right to appeal such decision to a court of competent jurisdiction" but

"[i]f there is not an appeal . . . within forty-five . . . days of the decision by the

ADR Committee, the decision of the ADR Committee shall be binding on all

parties and shall have full force and effect under the laws of the State of New

Jersey."

Plaintiff disputed the debt and Cutolo responded in a February 9, 2016

letter verifying the amount owed with a ledger outlining the specific charges

"represent[ing] [her] pro-rata contribution for cable services obtained by the

Association." Having failed to receive any payment from plaintiff, Cutolo filed

a lien against plaintiff's unit for the unpaid assessments, interest, attorneys' fees,

A-3446-18T3
6
and costs, which was recorded in the Bergen County Clerk's Office on December

9, 2016.

The parties, with the assistance of counsel, thereafter voluntarily

participated in an ADR proceeding. The ADR Committee concluded that

plaintiff was required to pay all future cable bills starting on July 1, 2017 but

relieved plaintiff of any liability for past fines and penalties associated with the

cable television dispute.

The Association sent plaintiff's counsel notice of the ADR Committee

decision in a letter dated June 16, 2017 and, although it informed plaintiff that

it did not believe the ADR decision "was . . . consistent with the law of the State

of New Jersey," it nevertheless advised plaintiff that it would accept the

decision. Plaintiff's counsel, however, advised the Association in an August 1,

2017 email that plaintiff categorially "rejected the ADR decision."

Approximately six months after the ADR decision, plaintiff filed a two-

count verified complaint against the Association and Cutolo. In her first count,

plaintiff principally alleged that the Association breached the terms of the CSA

by "assessing improper, unagreed to and unauthorized charges" and "engag[ing]

in a course of draconian punishment upon [her] in the utmost unlawful fashion."

A-3446-18T3
7
 Plaintiff also claimed that the Association improperly placed a lien on her

unit without providing her a copy as required by N.J.S.A. 46:8B-21, as well as

"suspend[ing] all rights and privileges of ownership" not limited to use of her

"parking spot . . . the pool, tennis court, gym, doorman services, washers/dryers,

denial of guest parking," and rejecting mail that did not fit in her mailbox. Her

second count alleged that Cutolo violated the FDCPA by using "unfair practices

as detailed and unfair and unconscionable means to collect or attempt to collect

the alleged debt and attempting to collect any amount not authorized by the

agreement creating the debt or permitted by law."

Defendants filed a timely answer and counterclaim, in which they sought

a judgment "declaring the ADR decision binding . . . [and] for any and all unpaid

amounts together with attorney's fees and costs." Defendants further alleged

that plaintiff was utilizing her unit "for commercial purposes" and sought to

enjoin plaintiff from such unauthorized uses.

After hearing oral arguments, the trial court entered a December 20, 2017

order temporarily restraining defendants from "[p]reventing [p]laintiff from

utilizing her parking space" and from "[p]reventing [p]laintiff from use of

doorman services, package delivery, washer and dryer use and all other rights

and privileges." In a January 25, 2018 order, the court further directed plaintiff

A-3446-18T3
8
to deposit $3246.66 into escrow "representing outstanding cable charges,

without prejudice to plaintiff's claim that the charges are not proper."

Defendants thereafter moved for summary judgment which the court

granted in a November 28, 2018 order that dismissed plaintiff's claims but

denied the motion as to defendants' counterclaim. In the court's accompanying

comprehensive written opinion, it concluded that the CSA only relieved plaintiff

from paying cable fees related to the 2009 Agreement. The court reasoned that

"the plain language of the CSA refers to the [2009 Agreement], which the parties

themselves understood had an expiration date of September 2012." It further

emphasized that "[i]f the parties intended the CSA to extend beyond the term of

the [2009 Agreement], they could have easily referred to the [2009 Agreement]

and all renewals or extensions thereof," which the parties did not do.

The court also determined that "the ADR decision [was] binding on both

[p]laintiff and the Association and there [was] no basis on which the court

should overturn the ADR decision." In this regard, the court noted that

according to the Association's by-laws, any party dissatisfied with the ADR

decision was required to file an appeal within forty-five days, but plaintiff "filed

the verified complaint on December 14, 2017, almost six . . . months after the

ADR decision was provided to her."

A-3446-18T3
9
 Regarding plaintiff's FDCPA claim, the court found that there was "a debt

owed to the Association based on the ADR decision" and that Cutolo had "the

right to collect that debt because it is a valid debt." As to her claims of

harassment as violations of the FDCPA, the court noted that plaintiff "did not

provide specificity to her claims . . . that would lead the court to believe there

have been violations of the FDCPA" and "sending several letters and filing a

lien against [plaintiff's] [u]nit is not an unusual course of action in attempting to

collect a debt."

After entry of the court's November 28, 2018 order, all parties consented

to dismiss defendants' remaining allegation that plaintiff was utilizing her unit

for commercial purposes. Soon thereafter, defendants filed an application for

$62,065 in attorneys' fees 1 and $2278.31 in costs.

In a detailed and comprehensive March 26, 2019 written opinion, the court

partially granted the Association's fee request. The court reviewed the legal

invoices and counsel's certification and concluded that although the "rates

1
The $62,065 sum was comprised of $57,065 in attorneys' fees related to
Cutolo's efforts and a $5000 self-insured retention (SIR) paid by the Association
to its liability insurer in accordance with the terms of the Association's insurance
policy. The Association also appended to its fee application invoices from the
Law Office of Steven J. Tegrar (Tegrar), the Association's appointed insurance
counsel, in the amount of $21,431. The Association, however, sought
reimbursement of only the $5000 SIR related to the Tegrar invoices.
A-3446-18T3
10
charged by each of [Cutolo]'s professionals [were] reasonable and consistent

with prevailing market rates," there were "a number of entries for the

[c]ollection [f]ees and the [l]itigation [f]ees that are duplicative and/or

administrative [related] which should not be awarded" and accordingly reduced

the fee request by $4948.

The trial court next found that because Cutolo "represented . . . itself in

connection with [p]laintiff's claims regarding [Cutolo]'s alleged violations of the

FDCPA" and there was "no basis to allow [Cutolo] to seek to collect legal fees

in connection with [p]laintiff's FDCPA claims," it further reduced the award by

$1588. The court also reduced the fee request by an additional $5591, to reflect

those Cutolo fees duplicative of work performed by the Tegrar firm.

The court further explained that "all the factors of [RPC] 1.5(a) were

considered by the court," and it gave "significant consideration to the amounts

and issues involved and the results obtained by counsel for the Association."

The court emphasized that the claims involved were not limited to plaintiff's

personal circumstances but "implicated the potential ability of any member of

the Association to refrain from paying required monthly maintenance and

similar charges," which "could have caused havoc to the Association and its

ability to maintain/run the condominiums." The court therefore concluded that

A-3446-18T3
11
the lodestar should be further reduced by 50% from $49,943 to $24,971.50. It

also awarded $2278.31 for costs incurred, and the $5000 for the insurance

deductible paid by the Association for its insurance defense counsel for a total

of $32,249.81. This appeal followed.

II.

A.

Plaintiff argues that the ADR Committee's decision "was not controlling"

and that the trial court "wrongly decided that the decision of the [Association's]

ADR [C]ommittee[] was binding on the parties." She specifically contends that:

(1) the ADR procedures "[did] not comport with the mandate of N.J.S.A. 46:8b-

14(k) for a fair and efficient procedure for the resolution of housing-related

disputes," (2) the ADR Committee decision was not "within the authority

conferred by the governing documents and the applicable law," and (3) she never

"assented" to ADR or had "full knowledge of her legal rights." We reject all of

these arguments.

Section 14(k) of the Condominium Act provides in pertinent part that a

"[condominium] association shall provide a fair and efficient procedure for the

resolution of housing-related disputes between individual unit owners and the

association, and between unit owners, which shall be readily available as an

A-3446-18T3
12
alternative to litigation." N.J.S.A. 46:8B-14(k). We have held that so long as a

dispute "arise[s] from the parties' condominium relationship," a party may,

pursuant to N.J.S.A. 46:8B-14(k), demand submission of such disputes to ADR

in lieu of proceeding in court. Bell Tower Condo. Ass'n v. Haffert, 423 N.J.

Super. 507, 517-18 (App. Div. 2012). Here, the cable bill dispute is inextricably

linked to the parties' relationship as condominium association and unit owner.

As such, N.J.S.A. 46:8B-14(k) was applicable and the dispute was properly

resolved by the ADR Committee.

We also find no support to plaintiff's claim that the ADR process was

unfair or inefficient because it imposed a limited period for judicial review or

for any other reason. The ADR Committee's ability to hear the dispute was

specifically prescribed by the Association's governing documents. Indeed,

plaintiff had appropriate notice that she had forty-five days from June 16, 2017

to seek judicial review before the decision became binding. We find nothing

unfair or inequitable by the forty-five-day period specified in the by-laws to seek

judicial review of the ADR Committee's decision, which is consistent with a

party's right to seek appellate review of final orders. See R. 2:4-1. We also

reject plaintiff's claim that she did not knowingly assent to the ADR process as

she voluntarily participated in that process, with the assistance of counsel.

A-3446-18T3
13
 B.

Plaintiff also argues that the trial court committed error in narrowly

interpreting the parties' CSA. Specifically, plaintiff contends that the CSA

applied to all cable fees because the 2011 Agreement "extend[ed] the term of

the [2009 Agreement] for an additional four years" and the 2014 Agreement

"extended the cable contract for five years." Furthermore, plaintiff argues that

the Association is estopped from collecting the cable fees due to the four-year

delay in seeking reimbursement. We disagree.

The construction of a contract is a question of law. Kieffer v. Best Buy,

205 N.J. 213, 222-23 (2011). Consequently, we review the trial court's

interpretation of a contract de novo. Id. at 222. Furthermore, "[a] trial court's

interpretation of the law and the legal consequences that flow from established

facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp.

Comm., 140 N.J. 366, 378 (1995).

When construing a contract, our objective is to determine the intent of the

parties. Kieffer, 205 N.J. at 223. Generally, we give the terms of a contract

their plain and ordinary meaning. Ibid. The court should not make for the

parties a different or better contract than they have made for themselves. Ibid.

A-3446-18T3
14
 As the trial court properly determined, the CSA is clear and unambiguous,

and plaintiff's contention that the 2011 and 2014 Agreements extended the terms

of the 2009 Agreement are belied by the plain language of those contracts. The

CSA clearly states that plaintiff would not be liable for cable television charges

"for the entire term of the [c]able [c]ontract" which was "set to expire on or

around September 2012." The 2011 Agreement makes no specific reference to

the 2009 Agreement but states that it "supersedes any prior agreements . . .

whether written or oral, between the parties." Similarly, the 2014 Agreement

stated that it "supersedes all other agreements relating to[] the subject matter

contained herein." We find no support in the record for plaintiff's argument that

the Association and TWC intended for the 2011 and 2014 Agreements to be

extensions of the 2009 Agreement or that the CSA addressed the cable fees

encompassed by those later agreements.

We further disagree with plaintiff's argument that the court "failed to

consider the estoppel effect of [the Association's] conduct" and that the

Association "engaged in inexcusable and unexplained delay in exercising [its]

asserted right to the prejudice of [plaintiff], so as to invoke the doctrine of

laches." The by-laws clearly indicate that the Association's failure to enforce a

provision does not constitute a waiver of the Association's future right to enforce

A-3446-18T3
15
stating that "[n]o restriction, condition, obligation, or covenant contained in

these [b]y-[l]aws shall be deemed to have been abrogated or waived by reason

of the failure to enforce same irrespective of the number of violations or

breaches thereof which may occur." Thus, simply because the Association did

not seek payment for cable expenses due in 2012 until 2016 is not dispositive,

as the Association never waived its right to enforce collection of the debt.

C.

Plaintiff also maintains that "[t]he summary judgment dismissing

[plaintiff's] claims . . . arising from [the Association's] wrongful assessment of

cable television service charges, was unwarranted on the facts of record, and

contrary to law and principles of equity." Plaintiff further argues that the court

"overlooked genuine issues of material fact pertinent to [the Association's]

attempts to collect cable service charges from [plaintiff] . . . and the harm to

[plaintiff] from the [Association's] retaliatory actions in the wake of her

legitimate challenge to the charges." We are not persuaded.

We review a summary judgment order de novo by the same standard

governing the motion judge's determination. RSI Bank v. Providence Mut. Fire.

Ins. Co., 234 N.J. 459, 472 (2018). "By that standard, summary judgment should

be granted 'when the pleadings, depositions, answers to interrogatories and

A-3446-18T3
16
admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact challenged and that the moving party is

entitled to a judgment or order as a matter of law.'" Woytas v. Greenwood Tree

Experts, Inc., 237 N.J. 501, 511 (2019) (quoting Brill v. Guardian Life Ins. Co.

of Am., 142 N.J. 520, 528-29 (1995)); see also R. 4:46-2(c).

As noted, the trial court properly determined that the scope of the CSA

was limited to the 2009 Agreement and there is no evidence in the record to

indicate that either the Association or TWC intended that their subsequent

agreements acted as extensions of that contract. Consequently, the CSA did not

prevent the Association from collecting cable fees related to the 2011 and 2014

Agreements from plaintiff.

Furthermore, the by-laws authorized the Association "to enforce the terms

of this instrument or any [r]ule or [r]egulation promulgated pursuant thereto, by

. . . self-help." As noted, by resolution, the Association declared parking a

privilege and stated that any owner who was delinquent for more than sixty days

for any assessments "shall have their parking privileges revoked." Similarly,

that resolution provided that owners delinquent in payments to the Association

"shall have their rights to use and enjoy the common elements suspended,

including the right to use the gym, pool, cable, and other non-essential

A-3446-18T3
17
[c]ondominium amenities such as the concierge with regard to deliveries at the

front desk." Thus, the Association was within its power to withhold plaintiff's

rights to use all of the common areas and shared services as a result of her failure

to pay her portion of the cable expenses after the CSA expired.

Here, in light of the clear and unambiguous language in the CSA, as well

as the resolution authorizing self-help remedies by the Association in the event

of delinquent payments by unit owners, we disagree with any characterization

that the Association breached a fiduciary duty to plaintiff. As noted, the

Association was well within its rights to hold plaintiff responsible for cable

charges after September 2012 and, pursuant to the by-laws, suspend her parking

privileges and access to the common areas. We accordingly concur with the

trial court that plaintiff was not entitled to any form of damages, emotional

distress, or otherwise.

D.

Plaintiff next contends that she "was entitled . . . to pursue her claims

against [Cutolo] under the [FDCPA] for attempting to collect a debt that was not

authorized" as Cutolo "was well aware of her position that the debt was invalid

in light of the settlement agreement and the applicable law" but nonetheless

persisted in "fil[ing] an assessment lien while the opportunity for ADR was yet

A-3446-18T3
18
open to resolve the issue." She argues that "because the alleged debt was not

contractually and legally authorized, [Cutolo]'s course of action also was

unlawful." Again, we disagree.

Here, as previously discussed, a valid debt existed at the conclusion of the

2009 Agreement. Cutolo did not send the first demand letter to plaintiff until

February 2016, well after the 2009 Agreement's expiration date of September

2012. As such, the debt it attempted to collect was properly owed to the

Association. And, even though plaintiff disputed the charges after receiving the

February 1, 2016 demand letter, Cutolo provided verification of the debt in a

timely February 9, 2016 response before it recorded the December 9, 2016

assessment lien against plaintiff. We find no support in the record that Cutolo

harassed, oppressed, or abused plaintiff, 15 U.S.C. § 1692d, or used unfair or

unconscionable means to collect their debt, 15 U.S.C. § 1692f. Accordingly,

the trial court properly dismissed plaintiff's FDCPA claims against Cutolo.

E.

Plaintiff also asserts for the first time on appeal that because cable

television service is not a common element under the Association's governing

documents or the Condominium Act, the Association accordingly had no right

to collect those fees. Again, we disagree.

A-3446-18T3
19
 It is improper to raise an argument for the first time on appeal.

"[A]ppellate courts will decline to consider questions or issues not properly

presented to the trial court when an opportunity for such a presentation is

available unless the questions so raised go to the jurisdiction of the trial court or

concern matters of great public interest." Nieder v. Royal Indem. Ins. Co., 62

N.J. 229, 234 (1973) (internal quotation marks omitted); see also R. 2:6-2.

Further, "[a]ny error or omission shall be disregarded by the appellate court

unless it is of such a nature as to have been clearly capable of producing an

unjust result, but the appellate court may, in the interests of justice, notice plain

error not brought to the attention of the trial or appellate court." R. 2:10-2.

As detailed in the court's November 28, 2018 written decision, plaintiff

challenged the Association's ability to collect the outstanding cable fees on two

discrete grounds: 1) that the 2009 Agreement did not expire in 2012 but was

instead extended by the 2011 and 2014 Agreements; and 2) she rejected the ADR

decision and was not precluded from challenging it despite her failure to comply

with the forty-five-day deadline. Plaintiff did not contend that the cable charges

were not authorized by the Condominium Act or the Association's governing

documents as she does on appeal. As plaintiff failed to raise these arguments

before the trial court, and the issue addresses neither the court's jurisdiction nor

A-3446-18T3
20
involves a matter of great public interest, we customarily decline to consider

them for the first time on appeal.

We also reject as unsupported by the record plaintiff's claim that these

arguments were preserved as they were "generally the same issues presented

before the trial court" and merely asserted the same relief under a different

theory. Plaintiff's appellate arguments challenging the propriety of the

Association from charging cable fees are distinct from those raised in the trial

court. For purposes of completeness, however, we address and reject plaintiff's

claims on the merits.

Both the Association's governing documents and the Condominium Act

permit the Association to charge all unit owners for cable television costs as

common expenses. As noted, the Association's master deed, defines common

expenses to include "all costs and expenses to be incurred generally by the [u]nit

[o]wners pursuant to this [m]aster [d]eed and/or the [b]y-[l]aws in connection

with . . . (iv) the conduct of the affairs of the [Association]." Furthermore, the

by-laws empower the Association's board of directors to "contract for . . . cable."

Providing funding for an authorized contract is clearly an expense related to the

"conduct of the affairs of the [Association]."

Similarly, the Condominium Act defines common expenses to include:

A-3446-18T3
21
 expenses for which the unit owners are proportionately
liable, including but not limited to: (i) all expenses of
administration, maintenance, repair, and replacement
of the common elements; (ii) expenses agreed upon as
common by all unit owners; and (iii) expenses declared
common by provisions of this act or by the master deed
or by the bylaws.

[N.J.S.A. 46:8B-3(e).]

The Condominium Act also states an association "shall be responsible for

the performance of [its] duties" including "[t]he assessment and collection of

funds for common expenses and the payment thereof." N.J.S.A. 46:8B-14(b).

"The association may levy and collect assessments duly made by the association

for a share of common expenses or otherwise, . . . together with interest thereon,

late fees and reasonable attorney's fees, if authorized by the master deed or

bylaws." N.J.S.A. 46:8B-15(e).

Further, "[a] unit owner shall, by acceptance of title, be conclusively

presumed to have agreed to pay his proportionate share of common expenses

accruing while he is the owner of a unit." N.J.S.A. 46:8B-17. "No unit owner

may exempt himself from liability for his share of common expenses by waiver

of the enjoyment of the right to use any of the common elements or by

abandonment of his unit or otherwise." Id. "The obligation to pay condominium

A-3446-18T3
22
fees has been described as 'unconditional.'" Glen v. June, 344 N.J. Super. 371,

376 (App. Div. 2001).

The 2011 and 2014 Agreements create an expense to be incurred by all

unit owners which was authorized pursuant to the Association's powers under

its by-laws. When plaintiff purchased her unit, she agreed to be bound by the

aforementioned governing documents, which permitted the Association to enter

contracts for cable services and are therefore included as common expenses as

defined in the master deed. To hold otherwise would permit plaintiff to

selectively pay authorized contractual expenses, contrary to the terms of the

governing documents and the interests of other unit owners.

III.

Finally, plaintiff maintains that, although the Association is entitled to

recover reasonable attorneys' fees related to its collection efforts, "[the

governing documents] do not permit fee-shifting, for [the Association's] benefit,

on a unit owner's judicial challenge to the [Association's] assessment as beyond

its authority and in contravention of a previous settlement agreement." She

further argues that the attorneys' fee award should be reversed because the trial

court "cited the factors contained in [RPC] 1.5(a) and the general case law to be

considered in assessing the reasonableness of the attorneys' fee but did not

A-3446-18T3
23
expressly apply any of those factors to the circumstances presented" as required

by Rule 1:7-4. Finally, plaintiff argues that "[t]he award of over half of [the

Association's] demand amounted to more than [thirty-five] times the $900

amount paid to [the Association]," which was "unreasonable and contrary to

law." We disagree with the majority of plaintiff's arguments and remand only

for the court to address two limited issues associated with the fee award.

"[F]ee determinations by trial courts will be disturbed only on the rarest

of occasions, and then only because of a clear abuse of discretion." Rendine v.

Pantzer, 141 N.J. 292, 317 (1995). We award attorney's fees only where

"expressly provided for by statute, court rule, or contract." Litton Indus., Inc.

v. IMO Indus., Inc., 200 N.J. 372, 385 (2009) (quoting Packard-Bamberger &

Co. v. Collier, 167 N.J. 427, 440 (2001)).

The first step in determining the fee award is calculating the "lodestar,"

which is a reasonable hourly rate for counsel's services multiplied by the number

of hours reasonably expended. Walker v. Giuffre, 209 N.J. 124, 130-31 (2012).

Additionally, Rule 4:42-9(b) requires counsel to submit "an affidavit of services

addressing the factors enumerated by RPC 1.5(a)," as well as "a recitation of

other factors pertinent in the evaluation of the services rendered."

A-3446-18T3
24
 If the court determines that the hours expended "'exceed those that

competent counsel would have expended to achieve a comparable result, a trial

court may exercise its discretion to exclude excessive hours from the lodestar

calculation.'" Packard-Bamberger, 167 N.J. at 446 (quoting Rendine, 141 N.J.

at 336). When the fee request "far exceeds the damages recovered, 'the trial

court should consider the damages sought and the damages actually recovered.'"

Litton, 200 N.J. at 387. Indeed, when the damages are disproportionately less

than the fees sought, "the court must consider that fact in determining the overall

reasonableness of the attorney's fee award." Id. at 387-88. Ultimately, the "goal

is to approve a reasonable attorney's fee that is not excessive." Id. at 388.

Strict proportionality is not a requirement in statutory fee-shifting; rather,

proportionality is one relevant factor to be considered as to the overall

reasonableness of the fee. See Walker, 209 N.J. at 132; Szczepanski v.

Newcomb Med. Ctr., 141 N.J. 346, 366 (1995) (rejecting strict proportionality

for fee-shifting statutes as the public interest is served by successful prosecution,

and the awards "assure that counsel for [plaintiffs] will receive reasonable

compensation for services reasonably rendered to effectuate the [statute 's]

objectives").

A-3446-18T3
25
 We agree with the court's conclusion that plaintiff was responsible for a

portion of the Association's attorneys' fees. The Association's governing

documents authorized the recovery of attorneys' fees if a unit owner failed to

timely pay monthly association fees. Further, the Condominium Act authorizes

a condominium association to charge a non-paying member with reasonable

attorney's fees. N.J.S.A. 46:8B-21.

We also concur with the court's determination that fees related to Cutolo's

defense of plaintiff's FDCPA claims were not recoverable under the

aforementioned governing documents or the Condominium Act and further

because Cutolo was acting pro se in its own defense. Finally, we conclude the

court's determination to reduce the fees by $12,122 as duplicative and

unnecessary was fully supported by the record.

We are also convinced that the court did not abuse its discretion in finding

that plaintiff's counsel's hours and rates were reasonable under Rule 4:42-9(b)

and Rendine, 141 N.J. at 334-38. The judge thoroughly analyzed counsel's

affidavit of services and properly determined that the recoverable fees were

reasonable and warranted under the circumstances and made appropriate

reductions as necessary. Nothing in the record demonstrates that plaintiff 's

counsel's hours, after the court's reductions, "exceed[ed] those that competent

A-3446-18T3
26
counsel reasonably would have expended to achieve a comparable result,"

Rendine, 141 N.J. at 336, particularly in light of plaintiff's claims and her

aggressive litigation posture.

Further, the court expressly considered that the fee award was greater than

the damages, as required by Packard-Bamberger, 167 N.J. at 446, and,

nonetheless, determined that the fee award was reasonable. The court found that

strict proportionality was not required because plaintiff's claims "implicated the

potential ability of any member of the Association to refrain from paying

required monthly maintenance and similar charges." The court also reasoned

that plaintiff's position had the potential to cause "havoc to the Association and

its ability to maintain [and] run the condominium[]." The court clearly

considered plaintiff's limited success, halved the lodestar before concluding that

a $24,971.50 fee was a reasonable fee. Based on our review of the record, we

find no abuse of the court's discretion to warrant interference with the court's

decision. See Packard-Bamberger, 167 N.J. at 444.

We have identified two issues with respect to the fee award, however, that

require vacating the March 26, 2019 order and remanding for further

proceedings. First, it appears that the court considered the $5000 SIR twice.

Indeed, when the court considered the gross fee award of $62,065, it included

A-3446-18T3
27
the $57,065 fees requested by Cutolo plus the SIR. After considering Cutolo's

invoices and reducing the fees by $12,122, the court halved the $49,943 lodestar

to the $24,971.50 reduced fee award and then added $2278.31 in costs, along

with, again, the $5000 SIR. On remand, the SIR should be considered only once

when computing the appropriate fee award.

Second, the Cutolo invoices included a nominal fee for the services of a

paraprofessional. The certification supporting these expenses, however, failed

to include the required explanation as to the paralegal's "qualifications, and the

attorney's billing rate for paraprofessional services to clients generally," as

required by Rule 4:42-9(b). Instead, counsel merely attested that the paralegal

was formerly associated with the firm and billed at a $110 hourly rate. To the

extent the Association seeks reimbursement of any paraprofessional's fees, an

appropriate certification should be submitted to the trial court on remand.

IV.

In sum, we affirm the trial court's November 28, 2018 order granting

summary judgment to defendants and dismissing plaintiff's complaint. We

vacate the trial court's March 26, 2019 order and remand for the court to address

the two limited issues addressed in our opinion associated with its fee award.

A-3446-18T3
28
 To the extent we have not addressed any of the parties' arguments it is

because we find them without sufficient merit to warrant discussion in a written

opinion. R. 2:11-3(e)(1)(E).

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

jurisdiction.

A-3446-18T3
29