DENIS REGAN VS. GRIGGS FARM CONDOMINIUM ASSOCIATION, INC.(SC-0661-15, MERCER COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-0592-15T3
DENIS REGAN,
Plaintiff-Respondent,
v.
GRIGGS FARM CONDOMINIUM
ASSOCIATION, INC.,
Defendant-Appellant.
________________________________
Submitted November 15, 2016 – Decided May 12, 2017
Before Judges Koblitz and Rothstadt.
On appeal from the Superior Court of New
Jersey, Law Division, Special Civil Part,
Mercer County, Docket No. SC-0661-15.
Griffin Alexander, P.C., attorneys for
appellant (Jennifer L. Alexander, Robert C.
Griffin, and David S. Cerra, of counsel and
on the briefs).
Denis Regan, respondent pro se.
PER CURIAM
Defendant Griggs Farm Condominium Association, Inc. appeals
from the Special Civil Part's final judgment in the amount of $945
plus costs entered in favor of plaintiff Denis Regan, one of
defendant's members and unit owners. The trial court entered the
judgment after it conducted a bench trial and found that defendant
improperly removed a fence plaintiff had installed fifteen years
earlier with defendant's permission. On appeal, defendant argues
that it was authorized to remove plaintiff's fence pursuant to an
agreement between the parties and it acted in accordance with its
obligation to maintain a neighborhood scheme within the
condominium. It also contends that even if its actions were
wrongful, the award of damages "was too high." We disagree and
affirm.
The material facts adduced at trial were not generally in
dispute and can be summarized as follows. Plaintiff purchased a
unit in defendant's condominium in September 2000. At that time,
plaintiff paid for the construction and installation of a wooden
fence along the rear of his unit's property. He did so with
defendant's approval because the original contractor failed to
construct them as originally planned. Plaintiff maintained his
fence in a good condition.
Approximately fifteen years later, defendant exercised its
authority under the condominium's by-laws and decided to have the
wooden fences located between units replaced with vinyl fences.
Defendant made that decision to establish uniformity throughout
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the condominium in response to input it received from various unit
owners.
Because defendant was only responsible for the fences between
units, on July 10, 2015, it sent a notice and form for unit owners
to complete about the plan to replace the privacy fences between
units, making clear it would not pay the cost of replacing the
rear fences. The email stated:
[The] Association will be starting the removal
and replacement of the privacy fencing between
the units . . . beginning . . . July 15th,
2015 . . . .
Please remove all items from the wooden
fences. . . .
If you chose to have a rear fence with gate
installed, please fill out and return the
attached form . . . before July 20, 2015.
The form stated:
During the 2015 fencing project, the
Association will be replacing all privacy
fences (the fences between each home) . . . .
All 4 foot rear fencing with a gate is the
responsibility of the homeowner. The
Association is not responsible to replace this
section of the fence.
The notice advised unit owners that if they chose to replace the
rear fence, they would be charged $945. They were asked to notify
defendant if they wanted or did not want a new rear fence installed
at that price. The notice did not state that if an owner did not
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want to replace his or her rear fence, it would be removed without
replacement.
Plaintiff chose not to replace his fence, which remained in
good condition. Despite that election, defendant arranged for the
removal of plaintiff's rear fence, without installing a new fence.
Plaintiff filed suit seeking $945 as damages. Plaintiff and
defendant's property manager testified at the trial, and the court
admitted into evidence documents offered by both parties. After
considering the testimony and the other evidence, the trial court
determined that the plaintiff was entitled to damages equal to the
amount charged by defendant to replace the fence. The court found
that the rear fence replacement was not part of the defendant's
maintenance responsibility and therefore defendant had no right
to simply remove the fence plaintiff installed with defendant's
permission years earlier without compensating plaintiff.
After the court rendered its decision, the court's clerk
entered judgment in the amount of $945 in favor of plaintiff. This
appeal followed.
We begin our review by observing:
[f]inal determinations made by the trial court
sitting in a non-jury case are subject to a
limited and well-established scope of review:
"we do not disturb the factual findings and
legal conclusions of the trial judge unless
we are convinced that they are so manifestly
unsupported by or inconsistent with the
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competent, relevant and reasonably credible
evidence as to offend the interests of
justice[.]"
[Seidman v. Clifton Sav. Bank, S.L.A., 205
N.J. 150, 169 (2011) (alteration in original)
(quoting In re Tr. Created By Agreement Dated
Dec. 20, 1961, ex rel. Johnson, 194 N.J. 276,
284 (2008)).]
"[W]e do not weigh the evidence, assess the credibility of
witnesses, or make conclusions about the evidence." Mountain
Hill, L.L.C. v. Twp. of Middletown, 399 N.J. Super. 486, 498 (App.
Div. 2008) (quoting State v. Barone, 147 N.J. 599, 615 (1997)).
"[I]n reviewing the factual findings and conclusions of a trial
judge, we are obliged to accord deference to the trial court's
credibility determination[s] and the judge's 'feel of the case'
based upon his or her opportunity to see and hear the witnesses."
N.J. Div. of Youth & Family Servs. v. R.L., 388 N.J. Super. 81,
88 (App. Div. 2006) (citing Cesare v. Cesare, 154 N.J. 394, 411-
13 (1998)), certif. denied, 190 N.J. 257 (2007). Our task is not
to determine whether an alternative version of the facts has
support in the record, but rather, whether "there is substantial
evidence in support of the trial judge's findings and conclusions."
Rova Farms Resort, Inc. v. Inv'r Ins. Co., 65 N.J. 474, 484 (1974);
accord In re Tr. Created By Agreement, supra, 194 N.J. at 284.
Legal conclusions, however, are reviewed de novo. See Manalapan
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Realty v. Twp. Comm. of the Twp. of Manalapan, 140 N.J. 366, 378
(1995).
Applying this deferential standard, we conclude defendant's
arguments are without sufficient merit to warrant discussion in a
written opinion, R. 2:11-3(e)(1)(E), as the trial court's findings
were supported by the sufficient credible evidence and its legal
conclusions were correct. We add only the following brief
comments.
There was no dispute that defendant was obligated to care for
the condominium's common areas, but, having given permission to
plaintiff to construct and install his rear fence, it could not
then exercise its authority by compelling the removal of his fence
without compensating him or replacing the fence, especially where
there was no finding that the fence was in disrepair and in need
of removal. There also was no evidence that defendant's permission
to install the fence was limited in duration or subject to
defendant's future determination that it could remove it at any
time. Defendant recognized its lack of authority over the rear
fences in the notice it sent to plaintiff, which made no mention
of compelling plaintiff to remove his existing fence. Under these
circumstances, removing plaintiff's property without compensation
was not an act of good faith. See Billig v. Buckingham Towers
Condo. Ass'n I, Inc., 287 N.J. Super. 551, 563 (App. Div. 1996)
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(stating that an association's "fiduciary relationship requires
that in dealing with unit owners, the association must act
reasonably and in good faith").
Turning to defendant's challenge to the court's award of
damages, and considering that this matter was tried in the Small
Claims Division, where the rules of evidence are relaxed, see
N.J.R.E. 101(a)(2)(A); see also New Century Fin. Servs., Inc. v.
Oughla, 437 N.J. Super. 299, 321 (App. Div.), certif. denied sub
nom., MSW Capital, LLC v. Zaidi, 218 N.J. 531 (2014); Triffin v.
Quality Urban Hous. Partners, 352 N.J. Super. 538, 543 (App. Div.
2002), we discern no abuse of discretion in the court's award.
See Sandler v. Lawn-A-Mat Chem. & Equip. Corp., 141 N.J. Super.
437, 453 (App. Div.), certif. denied, 71 N.J. 503 (1976). The
damages awarded by the trial court were properly supported by
defendant's assessment for the cost of replacing plaintiff's
fence. Defendant cannot be heard now to challenge that
determination, especially without offering any evidence to the
contrary.
Affirmed.
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