ESTATE OF THOMAS MISIEWICZ, et al. v. SUNCOR ASSOCIATES, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6746-03T36746-03T3

ESTATE OF THOMAS MISIEWICZ, by his

executor, RICHARD M. SERVIN and

JACKIE MISIEWICZ,

Plaintiffs-Appellants/

Cross-Respondents,

v.

SUNCOR ASSOCIATES, SUNCOR REALTY,

INC., SUNCOR, INC., MICHAEL SOLONDZ,

DANIEL SOLONDZ, BARRY SOLONDZ,

Defendants-Respondents/

Cross-Appellants,

and

CANDLEWOOD COMMONS CONDOMINIUM

ASSOCIATION and JACK A. PURVIS,

Defendants-Respondents,

and

CANDLEWOOD COMMONS, INC., LEONARD

SOLONDZ, SOLONDZ ENTERPRISES, INC.,

WOODSTONE BUILDERS, INC., GATARZ,

VENEZIA ARCHITECTURE & PLANNING

ASSOCIATES, JEFFREY VENEZIA &

ASSOCIATES, JEFFREY VENEZIA and

VIKING ENTERPRISES,

Defendants.

_____________________________________

 

Argued May 1, 2006 - Decided May 31, 2006

Before Judges Cuff, Lintner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County,

L-2674-01.

Gerald H. Clark argued the cause for appellants/cross-respondents (Lynch Keefe Bartels, attorneys; Mr. Clark, of counsel and on the brief; Richard C. Sciria, on the brief).

Thomas A. Wester argued the cause for respondents/cross-appellants (McDermott & McGee, attorneys; Mr. Wester, on the brief).

Joseph J. Garvey argued the cause for respondent Candlewood Commons Condominium Association (Garvey, Ballou & Van Dyke, attorneys; Peter J. Van Dyke, on the brief).

No brief was filed on behalf of respondent Jack A. Purvis.

PER CURIAM

Dr. Thomas Misiewicz owned an office condominium (unit) in a condominium park known as Candlewood Commons. On March 28, 1999, at approximately 3:30 p.m., while running wire in the attic space above his office, he fell through the acoustic tile ceiling separating the attic from his office onto a medical examining table. He was unconscious for a brief period of time, following which he began to vomit. He was taken to Jersey Shore Medical Center where he was diagnosed with a subdural hematoma, blood clot, and multiple skull fractures. Five days later, Dr. Misiewicz died from a stroke caused by brain swelling that deprived his brain from getting sufficient blood and oxygen from his heart.

Dr. Misiewicz's estate and widow, Jackie, brought an action seeking compensatory and punitive damages against various entities and individuals associated with the office park development that successfully moved for summary judgment and are not included in this appeal. Trial commenced against defendants Candlewood Commons Condominium Association, Inc. (CCCA), and its managing agent, Suncor Associates (Suncor).

Prior to submission of the case to the jury, CCCA moved for judgment, asserting that as a matter of law, pursuant to N.J.S.A. 46:8B-3d(ii) of the Condominium Act, N.J.S.A. 46:8B-1 to -38, and the definitions provided in the Master Deed, the attic area was part of the unit and not part of the common area. Plaintiffs countered with a cross-motion arguing that the provisions of the Master Deed defined the attic as part of the common area. Plaintiffs also argued that if the judge believed the terms of the Master Deed to be ambiguous, then the issue had to be construed against the CCCA. The judge found that there was sufficient ambiguity in the Master Deed as to whether the attic was part of the common area or the unit to require the jury to make the decision. In reaching his conclusion, however, he stated, "[i]f it were my decision, I believe that the intent of the document is that the bottom of the roof is the top of the unit."

The jury unanimously answered the first jury interrogatory, finding the attic where Dr. Misiewicz was working at the time he fell was not part of the common area of the condominium complex. The judge entered judgment in favor of CCCA and Suncor. Denying plaintiffs' subsequent motion for judgment notwithstanding the verdict or alternatively for a new trial, the judge found, in part, that had he decided the question answered by the jury he would have dismissed plaintiffs' complaint because "the appropriate interpretation of the documents was that the area where the doctor fell was not part of the common area." Rejecting plaintiffs' argument that the ambiguity he found should have been construed against CCCA, the judge noted that the developer, who was no longer a party to the action, was the drafter of the Master Deed.

On appeal, plaintiffs assert that the judge erred in submitting to the jury the issue of whether the attic space was part of the common element under the Master Deed. They argue that the judge mistakenly found that there was an ambiguity in the Master Deed and that instead it clearly designates the attic area as part of the common area. Alternatively, plaintiffs argue that even if the Master Deed's provisions are ambiguous, the judge should have resolved the ambiguity against defendants. They also assert that the judge's instructions on interpretation of legal documents was insufficient, the jury verdict was against the weight of the evidence, and the judge erred in permitting defendants to enter into evidence blowups of portions of the Master Deed while precluding plaintiff from doing the same with other portions of the Master Deed. In our view, the relevant terms of the Master Deed are not ambiguous and the Master Deed adequately depicted the attic area as part of the unit. Accordingly, we affirm the judgment of no cause for action and the denial of plaintiffs' motion for judgment notwithstanding the verdict or alternatively a new trial.

Candlewood Commons consists of seven one-story buildings that contain a total of thirty-five office units located in Howell Township. Developer Candlewood Commons, Inc., took over from the original developer, Viking Enterprises, and hired Woodstone Builders to construct the office park. The Master Deed created on April 21, 1988, named Candlewood Commons, Inc. as owner. At about the same time, the CCCA was formed. Candlewood Commons, Inc. was dissolved in 1991 and CCCA shareholders took over ownership of the unsold units.

The office units were sold as shells. After sale, the owners would do a "fit-up," such as putting in partitions, to accommodate their specific needs. All the units had concrete floors and walls and an open attic area. A suspended acoustic ceiling, which was included in the purchase price, separated the attic space from the office space underneath. The acoustic ceiling was part of the original construction.

The Master Deed provided in pertinent part.

5. DESCRIPTION OF UNITS - . . . . Each Unit is intended to contain all space within the area bounded by the interior surface of the exterior perimeter or party walls of each Unit and the floor and the ceiling of each as follows:

BOTTOM: The bottom of each Unit is an imaginary horizontal plane through the lowest point of the exterior surface of each portion of subfloor within the Unit . . . and extending in every direction to the point where it closes with a side of such Unit . . . .

TOP: The top of each type of Unit is an imaginary plane along and coincident with the unfinished and unexposed surface of the board, which forms the ceiling of the Unit where it closes at every side of such Unit.

SIDES: The sides of each Unit are imaginary vertical planes along and coincident with the innermost surface of the studding of the perimeter walls . . . and each side extends upwards and downwards so as to close the area in each said Unit bounded by the bottom and top of the Unit.

Each Unit, regardless of type, also includes all built-in fixtures, doors, windows, interior walls and partition, gypsum board and/or other facing material on the walls and ceilings thereof . . . and all other improvements located within such Unit described . . . although all or part thereof may not be located within the Unit, and shall include, but not be limited to, the following individual appurtenances:

(a) Complete heating system and any air conditioning system (including compressors);

. . . .

(d) All electrical wires which extend from the ceilings, walls or floors into the interior air space . . . .

6. DESCRIPTION OF COMMON AND LIMITED COMMON ELEMENTS - All appurtenances and facilities and other items which are not part of the Units hereinbefore described in Paragraph 5, shall comprise the Common Elements as graphically shown on Exhibits "B" and "C" aforesaid. The Common Elements shall also include by way of description, but not by way of limitation, all of the following . . . :

. . . .

(f) The roofs, foundations, columns, girders, beams, supports, exterior or interior bearing or main walls and floors between Units. (emphasis added).

 
 
Included in Exhibit C was the following diagram
 
 
 
 
 
:

Dr. Misiewicz's unit had the hot water heater and the heating and air conditioning (HVAC) system in the attic space. The attic space was four to five feet in height. The only attic space with a solid surface, known as a landing or mezzanine, was that space above the bathroom where the HVAC was located. Above the attic space was the underside of the roof, the insulation, the roof trusses and some wires and ductwork. The mezzanine area of the attic space was accessed by an approximate two-foot-by-two-foot square opening in the hallway between the examination rooms or by lifting any one of the suspended tiles.

Dr. Misiewicz hired Purvis to do a fit-up of his unit. He wanted to use the attic space for storage, but Purvis initially told him this could not be done because it would be a violation of the building code. After further discussion, Purvis included ceiling or floor joists in his design so that Dr. Misiewicz would be able to put "light storage" in the attic space. Dr. Misiewicz and Purvis agreed that floor joists and plywood from wall to wall would be above the two examination rooms. After completing the plans, Purvis was no longer involved in the project. Subsequently, in order to obtain a certificate of occupancy, Purvis changed the plans, eliminating the plywood floor and pull-down steps.

Another unit owner at Candlewood, David Tribula, testified that in 1998 one of his staff was getting supplies from the attic space and knocked down some of the drop ceiling. After this incident, Tribula hired an architect who extended the attic space, put down plywood flooring and drop-down stairs. CCCA had to approve those modifications, for which Tribula paid.

Leonard Solondz, president of both Candlewood Commons, Inc., and Woodstone Builders, testified that, although he would defer to the documents, he believed the common area included the space above the acoustic ceiling and the perimeter of the walls. He acknowledged that he had testified at a deposition, "the attic space, per se . . . would be the responsibility of the condominium association." When shown the drawings contained in Exhibits B and C of the Master Deed, however, Solondz concluded that the attic space was part of the unit.

A capital reserve study was performed in September 2001 by an outside company hired by the CCCA to estimate the amount of money needed for future repairs and the physical plant. Listed in the study was attic ventilation and replacement of the attic ventilation fans. The attics were ventilated utilizing seventy residential size fans. The CCCA needed to replace the attic fans when the roof was replaced because the fans go through the roof. According to the property manager, Michael Mazzitelli, the only reason he would go into a unit would be in response to a problem with a common element, such as a leak in the roof. He added that, other than the roof and the fans, there was no reason for the association to be in the attic space.

The principles regarding construction of legal documents are well settled. When interpreting a written document, a court's goal is to ascertain "'the intention of the parties . . . as revealed by the language used . . . the attendant circumstances, and the objects'" sought to be attained. Onderdonk v. Presbyterian Homes of N.J., 85 N.J. 171, 184 (1981) (quoting Atl. N. Airlines, Inc. v. Schwimmer, 12 N.J. 293, 301 (1953)). The interpretation of the terms is to be "decided by the court as a matter of law unless the meaning is both unclear and dependent on conflicting testimony." Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 92 (App. Div. 2001). "[W]here there is uncertainty, ambiguity or the need for parol evidence in aid of interpretation, then the doubtful provision should be left to the jury." Great Atl. & Pac. Tea Co. v. Checchio, 335 N.J. Super. 495, 502 (App. Div. 2000) (citing Michaels v. Brookchester, Inc., 26 N.J. 379, 387 (1958); Garden State Bldgs. v. First Fid. Bank, N.A., 305 N.J. Super. 510, 525 (App. Div. 1997), certif. denied, 153 N.J. 50 (1998)). These same principles are equally applicable to the construction of deeds. See Hofer v. Carino, 4 N.J. 244, 250 (1950).

Whether a term is clear or ambiguous is a question of law to be decided by the court. Nester v. O'Donnell, 301 N.J. Super. 198, 210 (App. Div. 1997). "'An ambiguity . . . exists if the terms . . . are susceptible to at least two reasonable alternative interpretations. . . .'" Ibid. (quoting Kaufman v. Provident Life and Cas. Ins. Co., 828 F. Supp. 275, 282 (D.N.J. 1992), aff'd, 993 F.2d 877 (3d Cir. 1993)). The terms "'must be given their plain and ordinary meaning.'" Ibid. (quoting Kaufman, supra, 828 F. Supp. at 283). "The court should read [the document's] provisions so as to avoid ambiguities, if the plain language of the contract permits." Stiefel v. Bayly, Martin & Fay of Conn., Inc., 242 N.J. Super. 643, 651 (App. Div. 1990). It "should not torture the language . . . to create ambiguity." Ibid.

We turn to plaintiffs' contention that the terms of the Master Deed clearly indicated that the attic area was part of the common area. Plaintiffs point to the definition of "Top," which states that the "top of each type of Unit is an imaginary plane along and coincident with the unfinished and unexposed surface of the board, which forms the ceiling of the Unit where it closes at every side of such Unit." They argue that this definition makes it clear that the acoustic tile ceiling separating the office from the attic forms the top boundaries of the unit. We reject plaintiffs' contention.

Ceiling has been defined as "[t]he interior upper surface of a room," American Heritage Dictionary 250 (2d College ed. 1982), "the overhead inside lining of a room" and "the material used to ceil a wall or roof of a room," Merriam Webster's Collegiate Dictionary, 183 (10th ed. 1994). Under these definitions, the attic was an additional room for which the underside of the roof qualified as a ceiling. Indeed, it housed the heating and air conditioning units that were expressly part of the unit. Paragraph five of the Master Deed, which provides in part, "[e]ach Unit . . . also includes all . . . other facing material on the walls and ceilings thereof," is not only in accord with the dictionary definitions but also evidences that each unit had more than one ceiling.

The acknowledgment of more than one ceiling per unit, together with definition of "Top" and the diagram in Exhibit C depicting the ceiling separating the first floor from the attic as part of the unit with the roof line, exterior sides, and floor comprising the boundaries of the common areas, leads to the inescapable conclusion that the attic was part of the unit. Contrary to plaintiff's contention, nowhere in the Master Deed is ceiling limited to the underside of the acoustical tile ceiling separating the attic from the office area. Our interpretation is consistent with the Master Deed's provision specifying the "roofs . . . beams, supports, exterior or interior bearing or main walls and floors between Units" as comprising the common elements. It is also in line with the capital reserve study's inclusion of attic fans, which protrude through the roof, as being a common element and not the responsibility of the owner of the unit.

Our determination that the plain and ordinary meaning of the terms used in the Master Deed establish that the attic area and acoustic tile ceiling were parts of the unit required the dismissal of plaintiffs' complaint, following defendants' motions. Accordingly, any error in submitting the issue to the jury was harmless. Finally, our holding renders moot plaintiffs' remaining contentions that (1) the Master Deed was ambiguous, requiring the judge to construe it against CCCA, (2) the verdict was against the weight of the evidence, (3) the instructions on contract interpretation were deficient, and (4) precluding plaintiffs from introducing into evidence a blowup of the Master Deed constituted to reversible error.

Affirmed.

 

Defendants who successfully moved for summary judgment and thus not included in this appeal are Gatarz, Venezia Architecture and Planning Associates, Venezia and Associates, Jeffrey Venezia, Viking Enterprises, Candlewood Commons, Inc., Leonard Solondz, and Woodstone Builders. While this appeal was pending, plaintiffs settled with architect Jack Purvis, who also successfully moved for summary judgment and was initially included in this appeal.

Suncor's cross-appeal of the judge's preclusion of its introduction into evidence of Dr. Misiewicz's Certificate of Occupancy is rendered moot.

(continued)

(continued)

14

A-6746-03T3

Legend:

Dark lines denote general common area

Light well

9'6"

Clg.

Ht.

Clerestory window

Section A-A

Section B-B

Wood trusses

Wood

trusses

May 31, 2006