BROOKSIDE HEIGHTS CONDOMINIUM ASSOCIATION v. CARMINE DEMARTINIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4366-07T24366-07T2

BROOKSIDE HEIGHTS CONDOMINIUM

ASSOCIATION,

Plaintiff-Appellant,

v.

CARMINE DEMARTINIS,

a/k/a CARMINE DE MARTINIS,

Defendant-Respondent.

_________________________________________________________

 

Submitted November 17, 2008 - Decided

Before Judges R. B. Coleman and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Special Civil Part, Passaic County, Docket No. DC-15798-07.

Buckalew Frizzell & Crevina, LLP, attorneys for appellant (Barbara A. Karpowicz, on the brief).

Respondent has not filed a brief.

The opinion of the court was delivered by

R.B. COLEMAN, J.A.D.

Plaintiff Brookside Heights Condominium Association ("Condominium Association") appeals from orders of the Passaic County, Special Civil Part, dated February 20, 2008 and April 1, 2008. No opposition to the appeal has been presented by the defendant Carmine DeMartinis. The first order granted default judgment in favor of plaintiff, but denied certain charges and attorneys' fees to which the Condominium Association claims it is entitled pursuant to the condominium's Master Deed and By-Laws. The second order denied plaintiff's motion for reconsideration. After carefully considering plaintiff's arguments in light of the record, plaintiff's brief, and applicable law, we affirm.

Defendant Carmine DeMartinis owns a condominium unit in the Brookside Heights Condominium in Wanaque. As a condominium unit owner, defendant also owns an undivided pro-rata interest in the common elements of the Brookside Heights Condominium and is automatically a member of the Condominium Association. As a member of the Condominium Association, defendant is subject to all the terms and provisions of the Condominium Association's Master Deed and By-Laws.

The Condominium Association's By-Laws provide that all members must contribute monthly payments to cover the Condominium Association's common expenses. If a member fails to pay his or her dues thirty days after provided with notice of default, the Condominium Association may accelerate monthly common expenses through the end of the budgetary year. The By-Laws also provide that the Condominium Association may impose interest, late charges, reasonable attorneys' fees and costs.

On or about September 12, 2007, the Condominium Association commenced an action against defendant to collect unpaid condominium maintenance fees. The complaint alleged that "defendant has failed to pay to the Association said defendant's duly assessed share of common expenses, and parking fees, in the amount of $3,371.03 as of September 1, 2007 . . . including accelerated common expenses through December 31, 2007." The complaint also demanded payment of "all attorneys' fees[] incurred by the Association in seeking collection of past due amounts from the defendant," as well as pre-judgment interest, post-judgment interest, and all additional amounts that become due prior to the entry of judgment.

Defendant failed to answer and on October 29, 2007, the court clerk entered default pursuant to Rule 6:6-3(a). On October 29, 2007, plaintiff filed a request for entry of a final default judgment against defendant, seeking $6,988.12, rather than the amount specified in the complaint. In support of the request for the greater sum, plaintiff submitted two certifications.

By order dated February 20, 2008, the trial court entered a final judgment of default against defendant, but limited the award to $3,371, the sum of money originally demanded in the complaint. The trial court indicated in its order that it was declining to award the amount requested because plaintiff's certifications of proof failed to adequately identify the "other charges" alluded to in certifications and because the request for legal fees did not comply with Rule 4:42-9(a)(8) or R.P.C. 1.5(a).

On or about March 17, 2008, plaintiff moved for reconsideration of the trial court's order. Plaintiff's motion for reconsideration included new certifications that itemized the charges, penalties, costs, and attorneys' fees; the previous certifications had "itemized" these amounts by reference to an account statement and several itemized fee invoices from plaintiff's law firm that were appended to the certifications. The motion for reconsideration also included a certification from a partner at plaintiff's law firm providing more detail about the firm's billing practices and its expertise in the collection of delinquent condominium fee payments. A letter brief submitted with the motion for reconsideration specifically addressed each of the eight factors that govern the reasonableness of attorneys' fees pursuant to R.P.C. 1.5(a).

On April 1, 2008, the trial court denied plaintiff's motion for reconsideration. Plaintiff filed a notice of appeal on May 16, 2008 challenging the trial court's February 20, 2008 order entering final judgment in the amount of $3,371.03 and the April 1, 2008 order denying plaintiff's motion for reconsideration. On May 30, 2008, the trial court submitted a letter pursuant to Rule 2:5-1(b) amplifying the reasoning upon which it denied plaintiff's motions. The letter clarified that (1) plaintiff's certification supporting its claim for $6,988.12 in damages, attorneys' fees, and costs did not comply with the requirements of Rule 6:6-3 because it did not contain an "affidavit setting forth a particular statement of the items on the claim, . . ." Rule 6:6-3; (2) plaintiff's certification supporting its claim for counsel fees did not comply with Rule 4:42-9(b), which requires a certification addressing the eight factors enumerated in R.P.C. 1.5(a); and (3) pursuant to Rule 4:49-2 and Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), plaintiff's motion for reconsideration was deficient because it was based on facts that were previously known to plaintiff but not presented to the court in the first instance.

Plaintiff asks us to reverse both orders and remand with instructions to award the $6,988.12 originally sought, plus costs. On appeal, plaintiff argues: (1) that the trial court erred in denying the Condominium Association the "common charges" to which it is entitled; and (2) that the trial court erred in denying the Condominium Association the attorneys' fees to which it is entitled.

Essentially, plaintiff is asking this court to review a trial court's exercise of discretion in denying an award of damages and counsel fees where the trial court found that plaintiff failed to strictly comply with the court rules pursuant to which such costs and fees may be sought. In this case, the trial court exercised its sound discretion in limiting plaintiff's award on February 20, 2008. Plaintiff did not file its notice of appeal until May 16, 2008, after the forty-five day period prescribed by Rule 2:4-1. Even the forty-five day time limit was tolled by the filing of a motion for reconsideration pursuant to Rule 4:49-2 on March 17, 2008, the time limit began to run again on April 1, 2008, when the motion was denied. R. 2:4-3(e). Thus, the final date on which plaintiff could have filed a timely appeal of the trial court's February 20, 2008 order was April 20, 2008. Plaintiff did not file a notice of appeal until May 16, 2008. Plaintiff's claims relating to the trial court's final judgment of default are therefore time barred.

The only issue properly before this court is plaintiff's challenge to the trial court's April 1, 2008 denial of plaintiff's motion for reconsideration. A decision to grant reconsideration lies within the sound discretion of the trial court and will only be granted where "(1) the [c]ourt has expressed its decision based on a palpably incorrect or irrational basis, or (2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence . . . ." Cummings, supra, 295 N.J. Super., at 384 (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)).

We cannot conclude that the trial court's entry of final judgment in the amount of $3,371.03 was palpably incorrect or irrational or that the court ignored the evidence before it. The trial court considered the certifications provided by plaintiff but determined that they failed to comply with the procedural rules requiring a minimal explanation of the basis of the charges and fees sought. The scope of our review is limited with regard to motions for reconsideration. The court's decision was not palpably incorrect, and it did not fail to appreciate the significance of competent evidence. Cummings, supra, 295 N.J. Super. at 384. We decline to second-guess the trial court's discretionary determinations.

Affirmed.

 

It appears that the trial court meant Rule 4:42-9(b), which requires an affidavit of services addressing the factors enumerated by R.P.C. 1.5(a).

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A-4366-07T2

January 22, 2010