GOVERNOR'S POINTE VILLAGE II CONDOMINIUM ASSOCIATION, INC v. MONIQUE GREENE

NOT FOR PUBLICATION WITHOUT THE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-3387-18T2

GOVERNOR'S POINTE
VILLAGE II CONDOMINIUM
ASSOCIATION, INC.,

          Plaintiff-Appellant,

v.

MONIQUE GREENE,

     Defendant-Respondent.
____________________________

                    Submitted December 9, 2019 – Decided February 28, 2020

                    Before Judges Messano and Susswein.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Middlesex County, Docket No. L-4649-18.

                    Cutolo Barros LLC, attorneys for appellant (Carla
                    Zappi and Joseph A. Kutschman, on the brief).

                    Respondent has not filed a brief.

PER CURIAM
      This appeal arises from a civil action brought to collect past due

condominium association fees.       Appellant, Governor's Pointe Village II

Condominium Association, Inc., appeals from the trial court's denial of

attorney's fees following the award of a default judgment in the amount of

$7197.48 against respondent, Monique Green. Specifically, appellant sought

$6884 in attorney fees and costs reflecting forty-one claimed hours of

professional work. The trial court found that request was not reasonable in light

of the amount of the judgment and the limited nature of the proceedings in which

defendant did not contest the complaint.

      Appellant contends the trial court abused its discretion in declining to

award any attorney fees at all. Because the trial court expressly acknowledged

that appellant is entitled to an award of reasonable counsel fees, we are

constrained to remand this matter for the trial court to determine that amount.

                                     I.

      We begin our analysis by acknowledging the legal principles governing

this appeal. Generally, "a prevailing party can recover [attorney's] fees if they

are expressly provided for by statute, court rule, or contract."        Packard-

Bamberger & Co. v. Collier,  167 N.J. 427, 440 (2001) (citing Dep't of Envtl.




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Prot. v. Ventron Corp.,  94 N.J. 473, 504 (1983)).           In this instance, the

Condominium Act provides:

            The association shall have a lien on each unit for any
            unpaid assessment duly made by the association for a
            share of common expenses or otherwise, including any
            other moneys duly owed the association, upon proper
            notice to the appropriate unit owner, together with
            interest thereon and any late fees, fines, expenses, and
            reasonable attorney's fees imposed or incurred in the
            collection of the unpaid assessment.

            [ N.J.S.A. 46:8B-21(a) (emphasis added).]

A party entitled to attorney's fees under this Act "need only demonstrate that

either the Master Deed or the By-Laws of [an] Association provide for an award

of attorney[']s fees in an action to collect overdue assessments." 1 Holbert v.

Great Gorge Vill. S. Condo. Council, Inc.,  281 N.J. Super. 222, 229 (Ch. Div.

1994).

      As a general proposition, we "grant substantial deference" when

reviewing "a trial court's conclusions in a non-jury civil action." Lanzi v. North,

 295 N.J. Super. 80, 84 (App. Div. 1996). More specifically, "fee determinations

by trial courts will be disturbed only on the rarest of occasions, and then only



1
  Plaintiff's Master Deed, Section 5.11 provides that the plaintiff can "proceed
[personally] against any delinquent Unit Owner for the recovery of a personal
judgment for the amount due, court costs and reasonable attorney's fees."
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because of a clear abuse of discretion." Packard-Bamberger & Co.,  167 N.J. at
 444 (quoting Rendine v. Pantzer,  141 N.J. 292, 317 (1995)). "An abuse of

discretion 'arises when a decision is "made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis."'" Milne v. Goldenberg,  428 N.J. Super. 184, 197 (App. Div. 2012)

(quoting Flagg v. Essex Cty. Prosecutor,  171 N.J. 561, 571 (2002)).

                                     II.

      The present complaint was filed in August 2018 and default judgment was

entered in March 2019. As the trial court noted in its amplification letter

submitted to us pursuant to Rule 2:5-1(b), the same parties were involved in

prior foreclosure litigation in 2015. The trial court explained:

            This court attempted to reconcile all of the
            documentation provided in order to make a
            determination as to a reasonable award of counsel fees
            and simply was unable to do so. The court found that a
            request for counsel fees in connection with the [2015]
            foreclosure matter, which commenced almost four
            years ago, would have been more appropriately made
            in the context of that proceeding[,] as this court had no
            involvement in that matter.

      We believe the trial court acted within its discretion in concluding that

appellant is only entitled to attorney fees and costs for the work performed on

the current litigation, not for work performed with respect to the 2015


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foreclosure action. Even if the two matters are related, we agree with the trial

court that any application for counsel fees associated with the 2015 foreclosure

action should have been sought in that matter.

      Having said that, we also agree with the trial court's statement in its

amplification letter that, "[p]laintiff was entitled to an award of reasonable

counsel fees in connection with this matter," referring to the complaint filed in

2018 resulting in default judgment in 2019. In view of that acknowledgement,

we agree that some attorney fees are appropriate, even if appellant sought more

than it is reasonably entitled to.

      The substantial deference we accord to a trial court's fee determination,

Packard-Bamberger & Co.,  167 N.J. at 444, presupposes the trial judge

determined a specific fee. In this instance, the trial court determined some

attorney fee was warranted but failed to determine a specific amount. We

believe this case presents one of the rare occasions when appellate intervention

is appropriate. Ibid.

      We appreciate the difficulty the trial court had in reconciling the

documentation submitted by appellant. The task nonetheless remains to arrive

at a reasonable amount of fees. We deem it inappropriate for us to exercise

original jurisdiction to determine that amount. See Price v. Himeji, LLC, 214


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                                        5 N.J. 263, 294–96 (2013) (explaining that Rule 2:10-5 "allow[s an] appellate

court to exercise original jurisdiction to eliminate unnecessary further litigation

but discourage[s] its use if factfinding is involved." (alterations in original)

(quoting State v. Santos,  210 N.J. 129, 142 (2012))); see also Tomaino v.

Burman,  364 N.J. Super. 224, 234–35 (App. Div. 2003) (opining that appellate

courts should exercise original jurisdiction "only 'with great frugality'" (quoting

In re Boardwalk Regency Casino License Application,  180 N.J. Super. 324, 334

(App. Div. 1981))). The trial court is in a better position than we are to review

the appellant's submissions and determine the reasonableness of professional

services rendered to obtain the default judgment in this case. See State v. S.S.,

 229 N.J. 360, 379–81 (2017) (holding that an appellate court is simply not as

experienced nor as capable as the trial court at making credibility assessments

or factual findings).

      To assist the trial court in determining the appropriate amount of counsel

fees to award, the court in its discretion may direct appellant to submit additional

materials documenting and itemizing the work performed solely with respect to

prosecuting the complaint filed in 2018. Nothing in this opinion should be

construed to limit the trial court's broad discretion in determining whether




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reimbursement for a claimed item of professional work is reasonable

considering that the 2018 complaint was uncontested.

      We add for purposes of facilitating the remand that appellant contends that

the trial court misread invoices by crediting respondent, rather than appellant,

for making payment to the attorney. It appears appellant may be correct. 2 The

trial court on remand should consider this argument when determining a

reasonable amount of attorney fees to award.

      Finally, we note that appellant's argument that the trial court showed bias

against it lacks sufficient merit to warrant discussion in this opinion. Rule 2:11-

3(e)(1)(E).

      Reversed and remanded. We do not retain jurisdiction.




2
  The trial court lists specific dates and amounts that appear on the invoices in
the record, in one instance commenting "[t]he debtor made another payment of
$50.00 for which she was given credit." However, the invoices are addressed to
appellant and appellant's property manager. Further, the use of "she" seems to
indicate that the trial court was referring to respondent, conflating who was
paying the legal invoices.


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