KRISTIN SCHOENBERG v. THE COMMONS AT STONEGATE CONDOMINIUM ASSOCIATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2849-05T52849-05T5

KRISTIN SCHOENBERG,

Plaintiff-Appellant,

v.

THE COMMONS AT STONEGATE

CONDOMINIUM ASSOCIATION ("CASCA")

and MAMCO, INC.,

Defendants-Respondents.

__________________________________

 

Argued October 23, 2006 - Decided November 20, 2006

Before Judges Seltzer and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Burlington County, Docket No. DC-6788-05.

Kristin Schoenberg, appellant, argued the cause pro se.

George C. Greatrex, Jr., argued the cause for respondents (Shivers, Gosnay & Greatrex, attorneys; Mr. Greatrex, on the brief).

PER CURIAM

Plaintiff Kristin Schoenberg appeals from a judgment of no cause for action in the Special Civil Part following a bench trial in her action against defendants The Commons at Stonegate Condominium Association and MAMCO, Inc., the management company employed by the condominium association to operate the condominium development in which plaintiff owned a residential unit. The gist of plaintiff's action is that the condominium association and its management company improperly permitted plaintiff's neighbor to attach a satellite dish to the second-story roof of the neighbor's two-story condominium. Plaintiff contends that the dish interferes with the view from her windows and that the Master Deed prohibits the use of common elements, such as the roof, except "for the furnishing of services and facilities for which they are reasonably intended and suited and which are incidental to the use and occupancy of the Units."

The facts, briefly, are these. In the spring of 1998, plaintiff purchased a condominium unit at 1606 Stokes Road in a development in Mount Laurel called the Mews at Stonegate. Her unit is two stories and is located on the back side of a double row of condominium units. It consists of a living room, kitchen and dining room on the first floor and bedrooms on the second floor. Plaintiff's windows all face some wetlands and plaintiff testified that she paid $2500 extra for the wetlands view.

Previously in 1996 the condominium association promulgated a rule prohibiting installation of satellite dishes entirely. Subsequent to that date, the Federal Communications Commission (FCC) issued a regulation that prohibited blanket bans by condominium associations on satellite dishes. Specifically, the FCC's Over the Air Reception Device Rule (OTARD Rule) prohibited the application of satellite-dish restrictions to individual unit-owners' limited common elements. The OTARD Rule permitted reasonable restrictions respecting the common elements, such as walls, roofs and walkways.

In February 2005 plaintiff's next-door neighbor, Imran Bhutta, applied to the condominium association for permission to install a satellite dish on the common elements. She was unable to get adequate reception from her limited common elements and sought installation on the outside of her unit. Later that month, having secured permission from the condominium association, the satellite was installed on Bhutta's left rear exterior wall at the point where it adjoined plaintiff's unit and was located between the first and second floors of Bhutta's unit.

Plaintiff complained about the location of the satellite dish and Nancy Hastings, the property manager, wrote to Bhutta telling her that the dish did not meet the specifications provided in the application that she submitted. Specifically, the dish was more than the prescribed twenty-four inches in diameter and was mounted on the side of the building, not on the roof. Hastings asked Bhutta to remove the satellite dish and told her she could install a different dish after submitting and getting approval for a new application.

Bhutta submitted another application on April 22, 2005. This was approved on May 5, 2005, and allowed the installation of two eighteen- to twenty-inch dishes on the second floor roof at the top roof line. The Condominium Board allowed an exception for the roof mounting because a signal could not be achieved from any other location within Bhutta's limited common elements. Bhutta was instructed to return the property to its original condition by patching up holes that were left after the first dish was removed. Hastings also sent a letter to plaintiff explaining the new installation plan. On this occasion, the dish was installed on the second-story roof above the edge of the gutter adjoining plaintiff's property. The siding was replaced and the rest of the damage made by the first installation was fixed in October 2005. Although this installation did not interfere with plaintiff's view of the wetlands, the dish remained visible from inside her unit. Dissatisfied, plaintiff filed this suit.

Judge Karen L. Suter determined at the end of the trial that the defendants' witnesses were credible and that there was no claim for equitable relief before her as to restoration of the condition of the property because this claim was not pled by plaintiff in her complaint. She also concluded that under the Consumer Fraud Act, N.J.S.A. 56:8-2, "there were [no] affirmative acts by the representatives of the defendants that misled [plaintiff]." Judge Suter found that defendants did not misrepresent the location of the satellite dishes to plaintiff. She also noted that plaintiff had not pled negligence, but even if her complaint could be construed to raise such an issue, plaintiff failed to meet her burden to prove duty, breach, proximate cause, and damages. Judge Suter also rejected plaintiff's breach of contract claim as well as her claim that the condominium association regulations had been violated; the latter because the board of the association is able to grant exceptions to the regulations for installation of satellite dishes.

Plaintiff raises the following issues on appeal:

POINT I - PLAINTIFF WAS DENIED DUE PROCESS AS THE TRIAL JUDGE FAILED TO CONSIDER PLAINTIFF'S EVIDENCE.

A. The Trial Court's Findings Of Fact And Credibility Determinations Should Be Disregarded As She Found That Plaintiff's Unit Is A Corner Unit. Plaintiff Does Not Live In A Corner Unit.

1. Per The Second Application The Satellite Dishes Were To Be Placed On The Front Roof Right Side Of The Corner Unit, 1605 Stokes Road, But Were Placed On Its Rear Next To The Front Of Plaintiff's Unit. The Judge Failed To Comprehend The Significance Of This As She Found Plaintiff Owned The Corner Unit.

B. The Judge Erred In Excluding Evidence And In Barring Plaintiff From Cross-Examining A Defense Witness About The Alleged Reasonableness Of The Board's Actions And Whether A Signal Could Be Obtained From Within The Patio Area.

C. The Judge Erred In Raising The Issue Of The Sufficiency Of Plaintiff's Pleadings, Proceeding With Trial And Subsequently Dismissing Part Of The Complaint.

POINT II - CASCA AND MAMCO INC. ARE LIABLE TO PLAINTIFF PURSUANT TO THE CONSUMER FRAUD ACT.

A. The Consumer Fraud Act Applies to Condominium Associations And Property Management Companies.

B. CASCA Made Statements to Plaintiff So That She Could Determine Whether She Wanted to Purchase Her Condominium Unit. CASCA Subsequently Failed to Perform This Promise by Permitting Satellite Dishes To Be Affixed To The Common Elements Contrary To Its Master Deed And Committed An Unfair Practice.

C. By Failing To Honor Representations Made To Plaintiff By CASCA's Representatives In Connection With The Sale Of Plaintiff's Residence, CASCA Committed An Unfair Practice.

D. Plaintiff Sustained An Ascertainable Loss And Is Entitled To Legal And Is Entitled To Legal And Equitable Remedies Pursuant to N.J.S.A. 56:8-19.

POINT III - PLAINTIFF ESTABLISHED DEFENDANTS' BREACH OF CONTRACT.

A. By Purchasing A Condominium, Plaintiff Entered Into An Agreement With The Association And The Association Breached The Agreement As It Failed To Enforce The Master Deed Provisions Regarding Satellite Dishes.

B. The Association Breached Its Contract With Plaintiff by Allowing Satellite Dishes On The Common Elements As There Is No Exception To The Master Deed Permitting Same.

C. As The Uncontroverted Evidence Establishes That The Satellite Dishes Are Visible From Within Plaintiff's Unit, And As Defendants' Answers State That The Second Installation Of Satellite Dishes Were Not to Be Visible From Within Plaintiff's Unit, The Evidence Indisputably Establishes Defendants' Breach Of Contract.

POINT IV - THE SATELLITE DISHES CONSTITUTE A NUISANCE.

POINT V - MAMCO INC. WAS NEGLIGENT AND GROSSLY NEGLIGENT AND IS LIABLE TO NOT ONLY PLAINTIFF BUT ALSO TO THE ASSOCIATION FOR ANY DAMAGES AWARDED TO PLAINTIFF.

After carefully reviewing the record in the light of the written and oral arguments advanced by the parties, we conclude that the issues presented by plaintiff are without sufficient merit to warrant discussion in this opinion, R. 2:11-3(e)(1)(A), (E), and we affirm substantially for the reasons expressed by the trial judge in her oral opinion delivered on January 3, 2006. The findings and conclusions of the judge are supported by substantial, credible evidence in the record. Rova Farms Resort, Inc. v. Investors Ins. Co. of Am., 65 N.J. 474, 483-84 (1974).

Affirmed.

 

While there is no specific provision for an exception in the satellite dish regulations, installation requires written approval and are "reviewed on an individual basis" which allows the Board to make a decision about each application and grant an exception, if necessary.

(continued)

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A-2849-05T5

November 20, 2006