JAMES QUIRK et al. v. MIDWAY BEACH CONDOMINIUM ASSOCIATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5928-05T55928-05T5

JAMES QUIRK and JEANNE MARIE QUIRK,

Plaintiffs-Appellants,

v.

MIDWAY BEACH CONDOMINIUM ASSOCIATION;

ESTATE OF J. PHILLIP CITTA; and

MR. AND MRS. JAMES D. CALDWELL,

Defendants-Respondents.

_____________________________________

 

Argued: June 5, 2007 - Decided September 4, 2007

Before Judges Kestin, Weissbard and Lihotz.

On appeal from the Superior Court of New Jersey, Chancery Division, General Equity, Monmouth County, C-212-05.

Michele R. Donato argued the cause for appellants.

Robert A. Greitz argued the cause for respondents Estate of J. Phillip Citta and Mr. and Mrs. James Caldwell (Citta, Holzapfel & Zabarsky, attorneys; Mr. Greitz, on the brief).

Kevin P. Kovacs argued the cause for respondent Midway Beach Condominium Association.

PER CURIAM

Plaintiffs, James Quirk and Jeanne Marie Quirk, appeal from a summary judgment dismissal of their complaint to invalidate certain transactions and decisions by their condominium association that, they allege, would invalidly diminish their ownership rights. We affirm.

Defendant Midway Beach Condominium (Midway) is located in Berkeley Township, Ocean County. It contracted to sell four adjacent donated lots to J. Phillp Citta and Mr. and Mrs. James D. Caldwell, for the construction of two homes, and the unit owners voted to amend the master deed to recognize as condominium units the houses that the purchasers would build. Plaintiffs had purchased their unit after that vote was taken, but before the condominium's master deed or public offering statement could be amended to reflect the actions taken. The addition of the new units increased the total number of units in the condominium from 386 to 390, resulting in a slight reduction in the percentage undivided interest of all unit owners in the common elements from 0.259 to 0.2564.

In seeking to invalidate the sales and the amendment of the master deed, plaintiffs claimed that the governing statutes would have permitted the reduction in their percentage undivided interest only if the condominium association had obtained prior individualized consent from each unit owner. The trial court granted defendants' motion for reasons expressed in Judge Lehrer's oral opinion on June 30, 2006. Judge Lehrer determined that the reduction was borne equally by all the unit-owners, that it was minimal, and that it was not attended by any invalidating acts or interests.

On appeal, plaintiffs argue that the Midway Beach Condominium Association (MCBA or association) violated the Condominium Act (the Act), N.J.S.A. 46:8B-1 to -38, and the master deed "by reducing the unit owners' interest in the common elements without the unit owners' consent." Plaintiffs also argue that the trial court "erred in granting summary judgment" because of the presence of genuine issues of material fact and because the rights of the prevailing movants were not clear as a matter of law; and that the complaint should not have been dismissed "without [a] ruling on the issue of whether the sponsors are entitled to vote on association matters." We have taken these arguments to subsume the following issues: whether the trial court erred by ruling 1) that the condominium association had the authority to create new units, and 2) that the sale of the new lots was within the association's authority to make business decisions; and 3) whether the trial court erred by failing to determine the sponsor's right to elect members of the association's board of directors and to cast votes on behalf of unsold units.

Guided by Judge Lehrer's summary of the background facts, we set out our understanding of them.

Midway was established as a condominium in Berkeley Township, Ocean County, with the recording of its master deed in 1994. It was comprised of 386 units, each an existing single-family detached house. Its public offering statement ("the POS") stated "[t]here is no new construction of any units contemplated."

The master deed provided that the association would manage the common elements, and it specified 0.259 as the percentage of undivided interest in the common elements that would be associated with each unit. The master deed did not address the possibility of adding units to Midway. The association's by-laws authorized a broad range of activity by MBCA's board of directors on behalf of all unit owners, including the acquisition and sale of units and other property.

Amendments to the master deed required votes representing sixty percent of the units. The sponsor could vote on behalf of unsold units, but it could not, and did not, vote on resolutions to amend the master deed "for the purpose of changing the permitted use of a Unit or interest, or for the purpose of reducing the Common Elements or facilities."

Joseph A. Citta, a principal in both of Midway's co-sponsors, owned four vacant ocean-front lots adjacent to Midway's property. At some point, he donated them to MBCA so that it could bolster its finances by selling them to purchasers, who would construct houses that would be designated as new units in Midway.

At Midway's September 1998 annual meeting, the unit-owners authorized MBCA to pursue sales of those new lots. MBCA obtained municipal approval to amend Midway's site plan to include the new lots.

In a memorandum dated July 20, 1999, the MBCA board of directors advised the members that, although seventy-five percent of those voting on a proposal to amend the bylaws to allow the land sale had approved, an insufficient number of total votes had been cast. The memo stated that the alternative to selling the new lots was a capital assessment of approximately $400 per unit. The members had been informed in an earlier memorandum that construction of two units on those lots would decrease the percentage undivided interest assigned to each unit from 0.259 to 0.2564.

At the association's September 1999 annual meeting, the owners, by a vote of 159 to 43, approved a resolution to amend the master deed to permit the creation of up to four new units. MBCA chose not to record the amendment until the municipal planning board and the New Jersey Department of Environmental Protection ("DEP") approved the construction of houses on the new lots.

On August 21, 2000, Citta, in his individual capacity, contracted with MBCA to buy one of the new lots for $200,000. He was still a principal and managing partner of one of Midway's two sponsors. The contract was contingent upon MBCA's success in obtaining whatever governmental approvals might be required for recording the amendment to the master deed. The Caldwells entered into a contract with MBCA to buy the other vacant lots for $315,000 on the same terms.

In March 2001, plaintiffs bought their unit in Midway from its owner for $160,000. The deed recited that they took an undivided 0.259 percent interest in the common elements.

In July 2004, DEP issued a permit allowing the construction of two houses on the new lots. Plaintiffs protested the sale of the lots as invalid. In October 2004, the resolution to amend the master deed was recorded. It specified an increase in the number of units from 386 to 390 and a reduction in the percentage of undivided interest in the common elements from 0.2591 to 0.2564.

In reviewing summary judgment orders on appeal, we apply the same standards that govern the trial courts. See Prudential Property & Casualty Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998). The movant must show an entitlement to judgment as a matter of law and the absence of any genuine issue of material fact. See ibid. In determining whether those standards have been satisfied, the factual background of the matter is "viewed in the light most favorable to the non-moving party[.]" Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995). On appeal, "[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 v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995).

Based on our analysis of the record in the light of the written and oral arguments advanced by the parties and prevailing legal standards and we are in substantial agreement with Judge Lehrer's determination that no genuine issues of material fact were presented, and with the reasons for decision he articulated. We, too, essentially for the reasons stated, reject plaintiffs' arguments that the new units eliminated the unique and irreplaceable ocean-front lots from the common elements, that the increase in the number of units materially decreased their percentage undivided interest in the common elements as a whole, and that the governing statutes required the consent of each unit-owner for amendments of the master deed having such an effect. We subscribe essentially to Judge Lehrer's view of the Act's requirement and his understanding of pertinent case law. We consider the argument that the trial court erred in dismissing the complaint without regard to whether the sponsors are entitled to vote on association matters to be without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). The record provides no basis, other than speculation, for determining that a change in the board of director's composition at the times the decisions herein were made, would have altered any board action taken or any election result.

 
The trial court's summary judgment order dismissing the complaint is affirmed.

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A-5928-05T5

September 4, 2007