MATTHEW MACFARLANE v. SOCIETY HILL, ETC. (L-7170-20, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-2792-20

MATTHEW MACFARLANE,

Plaintiff-Appellant,

v.

SOCIETY HILL AT

UNIVERISTY HEIGHTS

CONDOMINIUM ASSOCIATION

II, INC.,

Defendant-Respondent.

_____________________________

Argued June 8, 2022 – Decided July 6, 2022

Before Judges Gilson, Gooden Brown, and Gummer.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, Docket No. L-7170-20.

Matthew McFarlane, appellant, argued the cause pro se.

Jonathan Stuckel argued the cause for respondent

(Marks, O'Neill, O'Brien Doherty & Kelly, PC,

attorneys; Christian M. Scheuerman and Christian E.

Fisher, on the brief).

PER CURIAM

This appeal arises out of a dispute between plaintiff Matthew MacFarlane,

a unit owner at Society Hill at University Heights condominium complex in

Newark, and defendant Society Hill at University Heights Condominium

Association II, Inc. (Association), concerning the election of the Association's

Board of Trustees (Board). After defendant redacted the candidate biography

plaintiff had submitted to the Association in connection with his failed attempt

to be elected to the Board at the annual October 20, 2020 election, plaintiff sued.

In his complaint, plaintiff alleged defendant performed an unlawful act by

redacting his biography on the false premise that it contained "defamatory" and

"slanderous" material. Plaintiff filed an order to show cause (OTSC), seeking

to: 1) void the October 20, 2020 election and conduct a new election; 2) direct

the removal of a trustee; and 3) require the production of various corporate

records from defendant.

In a January 25, 2021 order, the trial judge denied plaintiff's request for

injunctive relief, finding that plaintiff failed to meet the requisite standard under

Crowe v. De Gioia, 90 N.J. 126 (1982). Thereafter, defendant moved to

compel alternative dispute resolution (ADR) pursuant to a provision of the

Condominium Act, N.J.S.A. 46:8B-1 to -38. In an April 13, 2021 order, the

judge granted defendant's motion and dismissed plaintiff's complaint without

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prejudice to allow the parties to complete ADR. Plaintiff now appeals from both

the January 25 and April 13, 2021 orders, arguing:

THE TRIAL COURT ERRED IN DENYING

PLAINTIFF'S APPLICATION FOR INJUNCTIVE

RELIEF.

THE TRIAL COURT ERRED IN DISMISSING THIS

CASE AND ORDERING ADR.

After carefully reviewing the record and considering the applicable legal

principles, we affirm both orders.

We glean these facts from the record. Plaintiff is a unit owner and member

of the Association. On or about May 25, 2020, a call for candidates was sent to

Association members, including plaintiff, requesting nominations to the Board

by June 19, 2020, for the annual election meeting, originally scheduled for July

22, 2020. Candidates were asked to provide a brief "[c]andidate [r]esume" to

be included with the annual meeting notice.

On June 19, 2020, plaintiff submitted his "candidate resume/biography"

to defendant in support of his nomination for election to the board. Several days

later, defendant contacted plaintiff through its managing agent and informed him

that his biography could not be printed as received because it allegedly

contained "defamatory/slanderous material," including "statements alleging

negligent towing, illegitimate fining, and criminal behavior" by the Association.

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Defendant advised plaintiff that if he removed the offending language, his

revised biography would be distributed.

Over the next several days, the parties exchanged numerous contentious

emails. Plaintiff asserted that the statements in his resume were "fundamentally

true and correct" and claimed his free speech rights protected the statements.

He also stated that "the burden of proof [wa]s on the Association to demonstrate

in a clear and convincing manner, at a hearing . . . consistent with the principles

of due process of law, that any statement in [his] bio[graphy] was made 'with

knowledge that it was false or with reckless disregard of whether it was false or

not.'" Citing Section 4.02 of the Association bylaws, plaintiff asserted "the

[A]ssociation [wa]s precluded from disallowing [his] bio[graphy] until [he] had

an opportunity for a hearing."

Section 4.02 of the Association bylaws states:

Suspension of Rights. The membership and voting

rights of any Member and/or tenant may be suspended

by the Board for any period during which any

assessment against the Unit to which his membership is

appurtenant remains unpaid; but upon payment of such

assessments, and any interest accrued thereon, whether

by check or cash, his rights and privileges shall be

immediately and automatically restored. Further, if

Rules and Regulations governing the use of the

Common elements and the conduct of persons thereon

have been adopted and published, the rights and

privileges of any person in violation thereof may be

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suspended at the discretion of the Board for a period not

to exceed thirty (30) days for any single non-continuous

violation. If the violation is of a continuing nature,

such rights and privileges may be suspended

indefinitely until such time as the violation is abated.

No such action shall be taken by the Board until the

Unit Owner and/or tenant is afforded an opportunity for

a hearing which is consistent with the principles of due

process of law.

Defendant responded that Section 4.02 dealt with rescinding membership

rights of "delinquent unit owners" and had "no relevance" to the matter at hand.

Defendant refused to send out plaintiff's biography as submitted, explaining it

would not expose "unit owners to a suit for defamation." Instead, defendant sent

out a redacted version of plaintiff's biography "alongside each meeting notice."

Prior to the election, the Association President tendered her resignation ,

creating an additional Board vacancy. However, at a September 22, 2020 open

meeting, the Association ratified a motion rejecting the resignation. On October

20, 2020, defendant held its annual election and plaintiff was not elected. The

following day, plaintiff filed a complaint alleging defendant had: (1)

"performed an ultra vires audit of . . . [p]laintiff's election bio[graphy]"; (2)

"claimed, without evidence, that [p]laintiff's bio[graphy] contained

'defamatory/slanderous . . . material"; and (3) "redacted [p]laintiff's

bio[graphy] . . . , publishing it with other candidates' unredacted bio[graphies]

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as part of the meeting notice" without affording plaintiff "a hearing as required

by Association bylaws ([S]ection 4.02)" or conducting "a binding vote . . . per

N.J.S.A. 45:22A-46."1 Plaintiff sought "declaratory relief pursuant to N.J.S.A.

15A:5-23," to "void the results of the October 20, 2020 election"; and "[t]he

share of [d]efendant's litigation expenses paid by [p]laintiff as common charges

pursuant to [S]ection 5.11V of the Association bylaws." Plaintiff also sought

"[p]unitive damages up to $350,000."

Subsequently, on October 22, 2020, plaintiff made a request to defendant

pursuant to N.J.S.A. 15A:5-24 for various records, including "[t]he membership

list"; "[t]he minutes book"; "[t]he prior [twelve] months of financial records";

and "[b]allots from the October 20 annual election meeting." On November 19,

2020, plaintiff filed an order to show cause seeking to: 1) void the October 20,

2020 election and conduct a new election; 2) order "the removal of [the] trustee

who had proffered her resignation"; and 3) require "the production of various

corporate records" from defendant that plaintiff alleged "were being unlawfully

withheld."

1

See N.J.S.A. 45:22A-46 (setting out the requirements for condominium

association meetings at which binding votes will be taken).

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On January 25, 2021, the judge heard oral argument on the OTSC.

Plaintiff argued that emergent relief was warranted because the Association was

not "fulfilling its duties." Defendant countered that plaintiff failed to articulate

any "irreparable harm" and his argument lacked merit. Specifically, defendant

argued "there [was] no evidence that [plaintiff] was silenced" by having his

candidate biography redacted because plaintiff had other "mechanism[s] such as

social meetings to get his word out." According to defendant, the biography was

intended "to articulate who you are and . . . your past experience," and should

not "be defamatory."

The judge denied plaintiff's application for injunctive relief, finding

plaintiff failed to establish either irreparable harm or a likelihood of success on

the merits as enunciated in Crowe. Defendant then moved to dismiss the

complaint without prejudice so that the parties could pursue ADR pursuant to

the Condominium Act. On April 13, 2021, following oral argument, the judge

granted defendant's motion and dismissed the complaint without prejudice.

In an oral decision, the judge stated the issue was "not about the substance

of the complaint," but rather whether it was proper "to dismiss the complaint

without prejudice to allow it to proceed through [ADR]" pursuant to N.J.S.A.

46:8B-14(k). First, referring to an earlier July 2020 arbitration between the

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parties, the judge determined the prior matter was unrelated and did not

adjudicate the "specific issue" governing this claim.

Next, the judge explained that Section 4.02 of the Association bylaws on

which plaintiff relied did not apply to this matter because that section referred

to "suspension of membership and voting rights" based on a "delinquency in

payment of assessments," which was not the case here. Third, the judge rejected

plaintiff's contention that "the election issue . . . harmed the entire association,"

and determined instead that this was "an individual matter," rather than a

derivative claim. Finally, the judge found that because the dispute between the

parties "clearly . . . relate[d] to the parties' condominium relationship," it fell

within the purview of the Condominium Act and there were no compelling

circumstances warranting a different outcome. This appeal followed.

We begin by addressing plaintiff's contention that the judge erred in

denying injunctive relief.

In determining whether to grant a preliminary

injunction, a trial court must consider (1) whether an

injunction is "necessary to prevent irreparable harm";

(2) whether "the legal right underlying [the applicant's]

claim is unsettled"; (3) whether the applicant has made

"a preliminary showing of a reasonable probability of

ultimate success on the merits"; and (4) "the relative

hardship to the parties in granting or denying

[injunctive] relief."

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[Rinaldo v. RLR Inv., LLC, 387 N.J. Super. 387, 395

(App. Div. 2006) (alterations in original) (quoting

Crowe, 90 N.J. at 132-34).]

See also Garden State Equal. v. Dow, 216 N.J. 314, 320 (2013) (reaffirming the

Crowe factors).

The moving party has the burden to establish each of the Crowe factors

by clear and convincing evidence, Brown v. City of Paterson, 424 N.J. Super.

176, 183 (App. Div. 2012), and we review a trial court's decision to grant or

deny a preliminary injunction for an abuse of discretion. Id. at 182. A court

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

inexplicably departed from established policies, or rested on an impermissible

basis.'" State v. R.Y., 242 N.J. 48, 65 (2020) (quoting Flagg v. Essex Cnty.

Prosecutor, 171 N.J. 561, 571 (2002)).

Here, we discern no abuse of discretion. The judge applied the correct

standard and properly concluded plaintiff failed to show a reasonable probability

of ultimate success on the merits or the immediate threat of irreparable harm.

See Subcarrier Commc'ns, Inc. v. Day, 299 N.J. Super. 634, 638 (App. Div.

1997) (explaining irreparable harm means the movant "must have no adequate

remedy at law"). Plaintiff argues that because his complaint invoked N.J.S.A.

15A:5-23, which provides for the review of elections "by the Superior Court in

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a summary manner," the Crowe factors do not apply. However, N.J.S.A. 15A:5-

23 provides no support for plaintiff's contention.

Next, to address plaintiff's challenge to the judge's interpretation and

application of the Condominium Act, we must interpret the scope of the ADR

provision contained in N.J.S.A. 46:8B–14(k). "Our task in statutory

interpretation is to determine and effectuate the Legislature's intent." Newfield

Fire Co. No. 1 v. Borough of Newfield, 439 N.J. Super. 202, 209 (App. Div.

2015) (quoting In re Petition for Referendum on Trenton Ordinance 09–02, 201

N.J. 349, 358 (2010)). In doing so, our starting point is the plain language of

the statute itself, giving that language its ordinary meaning. McGovern v.

Rutgers, 211 N.J. 94, 108 (2014). Only where a provision's language is

ambiguous do we look to extrinsic sources, such as legislative history, to glean

its intended thrust. See Bosland v. Warnock Dodge, Inc., 197 N.J. 543, 553

(2009). "[A]n issue of statutory interpretation is a question of law," and our

review is therefore de novo, owing no deference to the trial court's legal

determinations. McGovern, 211 N.J. at 108.

Turning to the statute at issue, Section 14(k) of the Condominium Act

provides, in pertinent part: "A[ ] [condominium] association shall provide a fair

and efficient procedure for the resolution of housing-related disputes between

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individual unit owners and the association, and between unit owners, which shall

be readily available as an alternative to litigation." N.J.S.A. 46:8B-14(k). In

Finderne Heights Condominium Association v. Rabinowitz, 390 N.J. Super. 154

(App. Div. 2007), we interpreted that language as compelling dismissal without

prejudice in favor of ADR where, subsequent to the filing of a covered suit, a

party elected ADR. Id. at 163-64.

We stated:

Generally, should an appropriate party seek ADR

under N.J.S.A. 46:8B-14(k) after suit is filed, absent

some compelling circumstances, the trial judge should

dismiss the matter without prejudice and require it be

submitted for alternative dispute resolution. We

recognize, however, that there may certainly be

instances in which the trial judge, in an appropriate

exercise of discretion, may refuse to dismiss the action

and send it to alternate dispute resolution. The

compelling circumstances which may cause a court to

bypass ADR would include an immediate threat to the

safety of others or an immediate and substantial threat

to property.

This approach is consistent with both sections of

the Condominium Act, recognizes the public policy

favoring alternative dispute resolution and is consistent

with our view that "[l]itigation should be a last resort,

not a first one."

[Id. at 164 (quoting Billig v. Buckingham Towers

Condo. Ass'n., 287 N.J. Super. 551, 564 (App. Div.

1996)).]

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In Bell Tower Condominium Association v. Haffert, 423 N.J. Super. 507

(App. Div. 2012), we reaffirmed that interpretation of the Condominium Act's

ADR provision. Regarding its intended scope, we framed the seminal question

as "whether the dispute between the parties is a 'housing-related dispute []'

within the meaning of N.J.S.A. 46:8B14(k)." Id. at 516 (alteration in original).

In light of New Jersey's strong public policy favoring arbitration and "the

Legislature's failure to impose any limitations or conditions upon an

association's or a unit owner's right to pursue arbitration to resolve 'housing-

related disputes,'" we concluded, so long as the dispute "arise[s] from the parties'

condominium relationship," an association or a unit owner may, pursuant to

N.J.S.A. 46:8B–14(k), demand submission of such disputes to ADR in lieu of

proceeding in court. Id. at 516-17.

Acknowledging that "[a]ny other dispute would be resolved either in the

Law Division or in the municipal courts," we provided the following non-

exhaustive list of examples of non-"'housing related disputes' within the

meaning of N.J.S.A. 46:8B-14(k)":

an auto accident in the condominium parking lot, a

commercial dispute arising from a failed business

venture between two unit owners, a palimony claim

asserted by one unit owner against another, a legal or

medical malpractice claim against another unit owner,

a crime or disorderly persons offense committed by one

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owner against another, or any dispute that does not arise

directly from the parties' condominium relationship.

[Id. at 517.]

As such, we held the dispute between the condominium association and the

individual owners over the levying of special assessments to fund necessary

improvements was a "housing-related dispute" within the ambit of the

Condominium Act's ADR provision. Id. at 517-18.

Here, we agree with the judge's interpretation and application of N.J.S.A.

46:8B–14(k). As the present dispute is inextricably linked to and arises from

the parties' condominium relationship, the judge properly found that the ADR

mandate was applicable and dismissed plaintiff's complaint without prejudice to

allow the parties to complete ADR. We reject plaintiff's claim that defendant's

request for ADR is barred by the earlier July 2020 ADR between the parties.

The judge expressly found that the issues involved in the earlier ADR

proceeding were unrelated. Likewise, we reject plaintiff's contention that

defendant waived its right to ADR when it denied his request for a hearing under

Section 4.02 of the Association bylaws. As the judge explained, Section 4.02

had no relevance to the matter at hand.

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To the extent we have not specifically addressed any of plaintiff's

remaining arguments, we deem them without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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