MARY E. BRESLIN v. NORTHGATE CONDOMINIUM ASSOCIATION, INC.

NOT FOR PUBLICATION WITHOUT THE
                           APPROVAL OF THE APPELLATE DIVISION
    This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
 internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                      SUPERIOR COURT OF NEW JERSEY
                                                      APPELLATE DIVISION
                                                      DOCKET NO. A-3464-16T2

MARY E. BRESLIN,

       Plaintiff-Appellant,
v.

NORTHGATE CONDOMINIUM
ASSOCIATION, INC.; THE BOARD
OF TRUSTEES OF NORTHGATE
CONDOMINIUM, INC.; and
WILKIN MANAGEMENT GROUP,

       Defendants-Respondents.


                Submitted November 1, 2018 – Decided November 30, 2018

                Before Judges Haas, Sumners and Mitterhoff.

                On appeal from Superior Court of New Jersey,
                Chancery Division, Bergen County, Docket No. C-
                000276-15.

                Michael J. Breslin, Jr., attorney for appellant.

                Kates Nussman Ellis Farhi & Earle LLP, attorneys for
                respondents (Mariya Gonor, of counsel and on the
                brief).

PER CURIAM
        This matter comes before us on defendant's motion to dismiss plaintiff's

appeal as moot. In the underlying (as yet undecided) appeal, plaintiff Mary

Breslin challenges a February 24, 2017 Chancery Division order dismissing her

complaint against defendants Northgate Condominium Association, Inc. ("the

Association"), The Board of Trustees of Northgate Condominium, Inc. ("the

Board"), and Wilkin Management Group ("Wilkin"). We dismiss the appeal as

moot.

        By way of background, the Northgate Condominiums are seventy-one

units located in Washington Township, New Jersey. They were established in

1984 by the recording of the Master Deed in the Bergen County Clerk's Office

in accordance with the New Jersey Condominium Act,  N.J.S.A. 46:8B-1 to -28.

("the Act"). Defendant Northgate Condominium Association, Inc. is the entity

responsible for the administration of the condominiums and is governed by its

bylaws.

        In October 2001 the Association learned of a proposal by Caliber Builders

("Caliber") to construct senior citizen housing on an adjacent property. The

Board determined that water runoff from the proposed development would

damage Northgate's common elements and thereby diminish property values.

The Northgate unit owners vehemently opposed the proposed construction and


                                         2                               A-3464-16T2
at their annual meeting in 2003 voted unanimously to hire an engineering expert

to explore possible ways to derail the Caliber project. By letter dated December

10, 2004, the Board advised the unit owners of its ongoing legal and engineering

review of the Caliber project. In that same letter, the Board noted that an

additional monthly fee of $50 would be necessary to fund Northgate's review of

the Caliber project. The $50 "special assessment" was considered a "non-

budgeted expense" that could not be charged against the Association's reserve

fund.

        In 2008, the Board filed suit against Caliber after the municipality

approved the project.      In 2013, the Board announced that it required an

additional assessment of $1500 per owner to "refund the reserves" from which

$130,000 had been withdrawn to pay legal fees for the ongoing litigation. Less

than a year later, plaintiff purchased her unit. By the time the years-long Caliber

litigation settled, the Association had incurred substantial legal and engineering

fees. Accordingly, on April 28, 2015 the Board voted to impose an equal

$10,000 "annual/common assessment" on each unit owner to be paid in six

installments through 2018.

        On September 16, 2015, Plaintiff instituted this action. The issue at trial

was whether the Board had the authority to impose a $10,000 assessment on

each unit owner. Plaintiff's position was that the assessment imposed was a

                                         3                                 A-3464-16T2
"special assessment" that required a vote of the owners, and because the unit

owners never approved the assessment, the Board had no authority to impose it .

      After a six-day trial, the judge entered an order of judgment in favor of

defendants.   In her accompanying opinion, the trial judge found that the

Association's involvement in the Caliber litigation was rooted in its duty to

protect condominium property under  N.J.S.A. 46:8B-14 and the Master Deed.

The court found that because the Caliber Project would cause water runoff to

damage Northgate's "[g]eneral [c]ommon [e]lements," the Board properly

incurred litigation costs in opposing the project. The court further determined

that the assessment was properly characterized as a common assessment as the

legal fees were incurred to protect the common elements of the property, so long

as the assessment was imposed proportionally. After the judgment in their favor,

the Board passed a resolution imposing two additional common assessments:

one for $710,000 to pay legal fees associated with the Caliber and Breslin

litigations payable in installments through 2020; and a second for $35,000 to

cover the costs of the Breslin appeal.

      This appeal ensued. On appeal, plaintiff argues that the trial court erred

in concluding that the assessment was a common, rather than a special,

assessment.



                                         4                              A-3464-16T2
      While the appeal was pending, and in the face of substantial outstanding

legal fees, a newly installed Board retained new legal counsel to negotiate a

reduction in legal fees with prior counsel, Beattie Padovano, LLC ("Beattie").

In that regard, in addition to the legal and engineering expenses incurred in the

Caliber litigation, the Association incurred over $425,000 in legal fees at the

trial level to defend the Breslin litigation.

       Those negotiations resulted in a very favorable proposed reduction of

Beattie's fees from $605,633.99 to $262,496.03. The Board, however, was

concerned that the settlement would be paid using funds from the recently

imposed $710,000 common assessment because the Board's imposition of the

common assessments are subject to attack in this appeal. Accordingly, the

Board decided to request that the unit owners approve and ratify as "special

assessments" all of the prior assessments and that portion of the $710,000

assessment sufficient to cover the settlement.

      In that regard, on July 25, 2018 an informational "Town Hall" meeting

was held wherein legal counsel presented the proposed settlement with Beattie

and outlined the strategy of seeking unit owner ratification and approval of the

prior assessments so as to moot this appeal. On August 14, 2018, a Notice of

Special Meeting of the unit owners was mailed to all unit owners of record,

scheduling a Special Meeting for September 13, 2018, for the sole purpose of

                                          5                              A-3464-16T2
voting to approve and ratify the prior assessments, together with a detailed

"Resolution of the Unit Owners of Northgate Condominium Association, Inc.

Ratifying Prior Assessments and Approving a Special Assessment to Fund a

Settlement with Beattie Padovano."

      On September 13, 2018, the unit owners voted by an overwhelming

margin (48 in favor, 14 against) to approve and ratify the old Board's

assessments as "special assessments," and to fund the legal fee settlement with

Beattie. Immediately following the announcement of the results, the Board held

a Board meeting open to attendance by unit owners, which was noticed in

accordance with N.J.A.C. 5:20-1.2. The agenda for the meeting was to approve

the special assessments ratified by the unit owners and to approve the proposed

settlement with Beattie. The Board approved the agenda items by a vote of 6-0.

      With this development, the issues presented in this appeal are now clearly

moot. "A case is moot if the disputed issue has been resolved, at least with

respect to the parties who instituted the litigation." Caput Mortuum, L.L.C. v.

S&S Crown Servs., Ltd.,  366 N.J. Super. 323, 330 (App. Div. 2004) (citation

omitted).   "[C]ontroversies which have become moot or academic prior to

judicial resolution ordinarily will be dismissed." Cinque v. N.J. Dep’t of Corr.,

 261 N.J. Super. 242, 243 (App. Div. 1993) (citation omitted). Dismissal for

mootness is appropriate where "a judgment cannot grant effective relief, or there

                                        6                                A-3464-16T2
is no concrete adversity of interest between the parties." Caput Mortuum,  366 N.J. Super. at 330 (citations omitted). A court may consider events that occur

subsequent to the filing of an appeal in determining that an appeal is moot. Ibid.

(holding that the appeal was moot after the court was advised at oral argument

that the controversy had been resolved subsequent to the filing of the appeal).

      Here, plaintiff's concern that the assessments were in fact special

assessments has been resolved by virtue of the unit owners' retroactive approval

and ratification of the prior assessments as special assessments.        It is well

established that even if the acts of a corporate board were infra vires due to a

failure to obtain shareholder approval and/or failure to follow procedural

formalities, such as voting in a properly noticed board meeting, same can be

ratified after the fact.

             "Acts that are ultra vires are void and may not be
             ratified, while infra vires acts may be. An act is ultra
             vires if the municipality [was] utterly without capacity
             to act. On the other hand, an intra vires act is one that
             is merely voidable for want of authority."

             [Grimes v. City of E. Orange,  288 N.J. Super. 275, 279
             (App. Div. 1996) (internal citations omitted).]

      The ability to retroactively ratify an infra vires act has expressly been

extended to Condominium Associations. See Port Liberte II Condo. Ass'n, Inc.




                                         7                                 A-3464-16T2
v. New Liberty Residential Urban Renewal Co., LLC,  435 N.J. Super. 51, 66

(App. Div. 2014).

             Ratification must be accomplished with the same
             formalities required for the original exercise of power.
             If so accomplished, the ratification relates back to the
             date of the original action.

             [Ibid. (internal quotations and citations omitted).]

       In this case, Article VI, Section 7 of the bylaws states, in pertinent part,

that

             [T]he Board is authorized to levy, in any assessment
             year, a special assessment(s) applicable to that year
             only, for any lawful purpose necessary for the benefit
             of The Condominium or the health, safety or welfare of
             the Unit Owners, provided said special assessment has
             first been approved by a majority of the members
             present and voting at a members meeting at which a
             quorum is present. Written notice of said meeting shall
             have been sent to all Unit Owners at least thirty days in
             advance . . . .

       Because the required thirty-day notice was provided, and the

overwhelming majority of the unit owners were present and voted in favor of

the special assessments, the approval and ratification of the special assessments

were validly adopted and relate back to the date of the first and all subsequent

assessments. Therefore, this appeal is now moot.

       Plaintiff asserts that if we do not decide the merits of the appeal, future

unit owners may be subject to improper assessments, and, therefore, she asks

                                         8                                 A-3464-16T2
that we issue an advisory opinion delineating the parties' future rights and

responsibilities under Northgate's Master Deed and bylaws. However, "[t]he

notion that a court of appeals willy-nilly can decide issues unnecessary to the

outcome of the case results in the wholesale issuance of advisory opinions, a

practice our judicial decision-making system categorically rejects." State v.

Rose,  206 N.J. 141, 189 (2011) (Rivera-Soto, J., concurring in part and

dissenting in part) (citation omitted). We are not persuaded that this is a matter

of significant public importance warranting our determination of abstract legal

issues where there is no longer a controversy between the parties. See Zirger v.

Gen. Accident Ins. Co.,  144 N.J. 327, 330 (1996) (noting that "[o]rdinarily, our

interest in preserving judicial resources dictates that we not attempt to resolve

legal issues in the abstract").

      Dismissed.




                                        9                                 A-3464-16T2