ARBORWOOD I CONDOMINIUM ASSOCIATION, INC. v. BOROUGH OF LINDENWOLD

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2099-08T2099-08T1

ARBORWOOD I CONDOMINIUM

ASSOCIATION, INC., ARBORWOOD II

CONDOMINIUM ASSOCIATION, INC. and

ARBORWOOD III CONDOMINIUM

ASSOCIATION, INC.,

Plaintiffs-Respondents/

Cross-Appellants,

v.

BOROUGH OF LINDENWOLD,

Defendant-Appellant/

Cross-Respondent.

____________________________________________________

 

Argued July 7, 2009 - Decided

Before Judges Fisher and Grall.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3665-07.

John B. Kearney argued the cause for appellant/ cross-respondent (Kearney and Associates, P.C., attorneys; Mr. Kearney, of counsel; Nancy L. Hart-Esposito, on the brief).

Howard S. Mendelson argued the cause for respondents/cross-appellants (Davis & Mendelson, attorneys; Mr. Mendelson, of counsel; Kourtney A. Borchers, on the brief).

PER CURIAM

Plaintiffs are condominium associations, which, over the course of most of the current decade, retained private haulers to remove their trash rather than utilize defendant-borough's trash removal services. Because the borough was statutorily-obligated to provide those services, the parties reached an impasse as to the extent to which the borough would reimburse plaintiffs as required by N.J.S.A. 40:67-23.3a(3).

An earlier lawsuit regarding the borough's obligation to reimburse plaintiffs resulted in a settlement agreement, which provided a schedule for reimbursement to plaintiffs for the calendar years 2001 and 2002. After 2002, the borough continued to make payments to plaintiffs in the manner suggested by the settlement agreement. However, in 2007, the borough asserted that plaintiffs were not recycling, as required by the New Jersey Statewide Mandatory Source Separation and Recycling Act, N.J.S.A. 13:1E-99.11 to -99.32, and that their trash removal costs, upon which the amount of the borough's reimbursement was based, was unduly high; the borough asserted that the amount of its reimbursement to plaintiffs should be reduced by as much as 24%.

When the parties could not resolve their differences, the borough made no payment for 2007. As a result, plaintiffs commenced this action, seeking reimbursement for 2007 and beyond. Following the denial of the parties' dispositive cross-motions, the matter was scheduled for trial.

No trial took place. Rather, following a conference in chambers, the judge filed a written opinion in which he concluded that the reimbursements for 2003 through 2006, which had already been paid by the borough, were resolved by reference to the settlement agreement. The judge found that the borough's obligation for 2007 was also determined by resort to the settlement agreement. And, as for future years, the judge created a management oversight committee.

The borough appealed, arguing that the judge's expansive enforcement of the settlement agreement, beyond the years referenced in the settlement agreement, was erroneous since it did not incorporate a credit resulting from plaintiffs' failure to recycle. Plaintiffs cross-appealed, arguing that the trial judge erred in failing to award them counsel fees.

Because neither party complains of that part of the judge's order that created a management oversight committee to deal with the year 2008 and future years, we do not examine whether the judge was authorized to grant such relief. Plaintiffs appear to contend the judge erred in determining that plaintiffs' failure to recycle should become part of the calculus in determining future reimbursement from the borough; we find that argument to have insufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). And the borough appears to argue that the judge erred in failing to adjust the reimbursements previously made in the years 2003 through 2006. The record, however, does not reveal that the borough ever filed a counterclaim seeking damages for its alleged overpayment; accordingly, we reject any claim that the judge was required to adjust the earlier reimbursements that the borough had paid for those years.

As a result, we are left to consider whether the trial judge correctly found that the borough should reimburse plaintiffs for the year 2007 without including a recycling factor. As for 2007, the judge cursorily concluded that 2007 was governed by the earlier settlement agreement. We reject this. The settlement agreement explicitly applied only to 2001 and 2002. Certainly, the borough's voluntary reimbursements for the years 2003 through 2006 revealed its willingness to be bound to the terms of the settlement agreement for those years. However, no such assumption may be made for the calendar year 2007. To the contrary, the borough paid nothing at all for 2007, asserted its right to a reduction based on plaintiffs' failure to recycle, and forced plaintiffs to commence this action. It can hardly be said that the parties continued to act in conformity with the settlement agreement in 2007 and, as mentioned, the agreement itself does not expressly apply to the year 2007.

Because the existence of the prior settlement agreement was the sole reason for the judge's determination regarding 2007, we reverse and remand for a trial regarding the amount of reimbursement for that year alone. The amount fixed should be determined by consideration of the fact that plaintiffs failed to recycle during that calendar year.

In light of our disposition of the borough's appeal, we reject plaintiffs' arguments that the judge erred in refusing to award counsel fees in plaintiffs' favor.

 
Affirmed in part; reversed in part; and remanded for a trial in conformity with this opinion. We do not retain jurisdiction.

Plaintiffs' counsel asserted during oral argument on this appeal that there are other reasons for upholding the judge's decision regarding 2007. If there were, the judge did not allude to them in his opinion and -- in light of the idiosyncratic manner in which this case was adjudicated -- we have no record from which to determine whether there are facts to support some other alternative theory for recovery. We do not, however, foreclose plaintiffs from pursuing other theories of recovery in the trial court following our remand.

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A-2099-08T

July 28, 2009