                                NOT FOR PUBLICATION WITHOUT THE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-4709-16T4

BLUE WATER TOWNHOME
ASSOCIATION, INC.,

          Plaintiff-Respondent,

v.

LORI DIFABIO,

     Defendant-Appellant.
___________________________

                    Argued September 20, 2018 – Decided March 8, 2019

                    Before Judges Fuentes and Vernoia.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Cape May County, Docket No. L-0120-15.

                    James P. Grimley argued the cause for appellant
                    (Grimley Law, attorneys; Adrienne Chapman and
                    Norman W. Briggs, on the briefs).

                    James F. Crawford and Christian M. Scheuerman
                    argued the cause for respondent (James F. Crawford
                    and Marks, O'Neill, O'Brien, Doherty & Kelly, PC,
                    attorneys; Christian M. Scheuerman, James F.
                    Crawford, and Sean X. Kelly, on the brief).
PER CURIAM

      Defendant Lori DiFabio owns two condominium units in Townhomes at

Blue Water, a Condominium, which is managed and operated by plaintiff Blue

Water Townhome Association, Inc.             She appeals from an order granting

summary judgment in plaintiff's favor and awarding $377,815.09 in damages for

past due condominium assessments, monthly fees and other costs and attorney's

fees. Defendant also appeals from the court's order granting summary judgment

dismissing her counterclaim, which challenged the validity of a $60,000 per unit

special assessment that comprised $120,000 of the damages awarded. Based on

our review of the record in light of the applicable law, we affirm the court's

award of $85,949.09 in overdue condominium assessments, monthly dues and

collection costs, reverse the award of $120,000 for the $60,000 per unit

assessment and the dismissal of defendant's counterclaim, vacate the attorney's

fee award and remand for further proceedings.

                                        I.

      In our review of the record before the trial court, we view the facts and all

reasonable inferences therefrom in the light most favorable to defendant because

she is the party against whom summary judgment was entered. Brill v. Guardian




                                                                           A-4709-16T4
                                        2
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that standard, the

record before the trial court established the following facts.

      Defendant owns two condominium units in Townhomes at Blue Water, a

Condominium. Defendant is admittedly delinquent in the payment of fees and

assessments and other costs due to plaintiff.      In November 2013, plaintiff

obtained a $38,454.12 default judgment against defendant in a separate

proceeding for delinquent fees and assessments.        After defendant failed to

satisfy the judgment, the court in that matter appointed a receiver for one of

defendant's units to oversee the repair and rental of the unit. By July 14, 2014,

defendant owed plaintiff $51,843.41, in overdue fees and assessments. This

amount included the sums due under the November 2013 judgment.

The July 18, 2014 Meeting and Approval of the $60,000 Per Unit Special

Assessment

      At a July 18, 2014 meeting, plaintiff's board of trustees voted to authorize

a $60,000 per unit special assessment for siding and deck replacements. The

board adopted a resolution explaining that the unit owners who were eligible to

vote authorized the board "to create an assessment of $60,000 per unit, payable

by [October 20, 2014] . . . to fund the project involving the decking and siding."




                                                                          A-4709-16T4
                                        3
All of the unit owners, except defendant, subsequently paid the special

assessment.

      After obtaining bids from various contractors, in October 2014 plaintiff's

board retained a contractor to complete the decking and siding project. The

retention was not authorized by a vote of the unit owners at a formal board

meeting. The contractor that was retained is owned by the board president, but

he did not participate in the review of the bids received for the project or the

board's decision to retain his firm.

Plaintiff's Complaint and Damages Claims

      In March 2015, plaintiff filed a complaint alleging defendant failed to pay

"all regular common maintenance expenses (monthly condo fees)[,] special

assessments and attorney's fees and costs incurred in the collection of any unpaid

monthly condo fees and special assessments." More particularly, in the first

count of the complaint, plaintiff claimed $167,669.63 in damages, which

included $28,287.85 in monthly condominium fees for December 2013 through

March 1, 2015,1 $120,000 for the $60,000 per unit special assessment for the

siding and deck renovations and $19,381.78 in attorney's fees and costs incur red



1
  This amount included a $5500 per unit special assessment allegedly due on
January 12, 2014.
                                                                          A-4709-16T4
                                        4
through March 5, 2015, for collection of the November 2013 judgment. Plaintiff

also generally alleged it was entitled to any other amounts that became due

during the litigation and additional attorney's fees incurred during its efforts to

collect the sums due.

       In the complaint's second count, plaintiff repeated its claim for damages

for the attorney's fees and costs of collection of the sums due under the

November 2013 judgment. Plaintiff subsequently filed an amended complaint,

adding a claim in the second count for costs and fees associated with services

provided by the receiver.

Defendant's Answer and Counterclaim

       In response to the amended complaint, defendant filed an answer and

counterclaim in which she sought a declaratory judgment that the special

assessment and retention of the contractor were void because they were not

authorized by plaintiff's board in accordance with the master deed and by-laws.

Defendant also asserted claims for breach of fiduciary duty and a violation of

the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -210,2 and sought specific

performance of plaintiff's alleged obligation to provide plaintiff with records.



2
    The parties dismissed defendant's CFA claim by stipulation.


                                                                           A-4709-16T4
                                        5
Plaintiff's Motions For Summary Judgment

      Plaintiff was represented by separate counsel on its claims in the

complaint and in defense of the counterclaim. In January 2017, plaintiff's

counsel on the counterclaim moved for summary judgment for dismissal of the

counterclaim.   Plaintiff's counsel on the complaint then "cross-moved" for

summary judgment on plaintiff's affirmative claims. The court considered the

motions at the same time.

      In support of its summary judgment motion to dismiss the counterclaim,

plaintiff asserted that the board properly authorized the $60,000 per unit special

assessment at its July 18, 2014 board meeting. Defendant and the other unit

owners were properly notified of the meeting by a written notice that was sent

on June 27, 2014. Any alleged failure to provide defendant with notice was

immaterial because she was ineligible to vote due to her delinquency in the

payment of condominium dues and assessments. According plaintiff, the board

solicited bids for the siding and deck replacement project, selected the board

president's company to perform the work without his participation or

involvement and hired the company in October 2014, to perform the work at a

cost of $60,000 per unit.




                                                                          A-4709-16T4
                                        6
      Plaintiff's "cross-motion" for summary judgment relied on the facts

asserted in support of its initial motion and sought judgment against defendant

for the sums allegedly due and owing for monthly fees, assessments, other costs

and attorney's fees and costs. Plaintiff sought damages, inclusive of attorney's

fees and costs, totaling $340,313.52. The total consisted of $168,447.52 for

alleged past due monthly fees and assessments, 3 including $120,000 for the

$60,000 per unit assessment for the siding and deck replacements.             The

remaining, and larger, amount sought, $171,866, was claimed for attorney's fees

and costs.

      While the summary judgment motions were pending, plaintiff's counsel

on the complaint submitted a January 12, 2017 supplemental affidavit updating

plaintiff's itemized statement of damages and claim for attorney's fees that

reflected a revised total of $377,815.09.      Plaintiff sought $205,949.09 in

damages for fees, assessments, and costs, including costs related to the recei ver




3
  The summary included credits against the sums due based on rents collected
by the receiver.



                                                                          A-4709-16T4
                                        7
and repairs made to defendant's units,4 as well as $171,866 for attorney's fees

incurred through December 8, 2016. 5

Defendant's Opposition to the Summary Judgment Motions

      Defendant's opposition to plaintiff's summary judgment motions focused

on the imposition of the $60,000 per unit special assessment she alleged in her

counterclaim was not approved in accordance with plaintiff's master deed and

by-laws. She also challenged the reasonableness of plaintiff's attorney's fee

request. She did not otherwise dispute plaintiff's entitlement to the remaining

$85,949.09 for outstanding monthly fees, assessments and costs, including those

associated with the receiver.

      Defendant further argued plaintiff failed to formally authorize the October

2014 retention of the contractor to perform the siding and deck replacements,


4
  The record does not permit a precise breakdown of the revised and increased
damages claimed in plaintiff's counsel's supplemental affidavit. The affidavit
indicates that a summary of the damages is annexed as Exhibit K, but the exhibit
included in the appendix does not include a breakdown.
5
  In a February 8, 2017 letter to the court, plaintiff's counsel further revised the
amount of the requested damages to $389,084.06. Plaintiff claimed damages for
fees, assessments and costs totaling $206,103.47, and its request for attorney's
fees increased to $182,980.59. It is unnecessary to address the merits of the
damages and attorney's fees requested in the letter, which was unsupported by
an affidavit or certification in accordance with Rule 1:6-6, because the court's
summary judgment orders were not based on it.


                                                                            A-4709-16T4
                                         8
and plaintiff's retention of the contractor was void because the contractor is

owned by plaintiff's board president.         In her sur-reply brief submitted in

opposition to plaintiff's summary judgment motions, defendant argued for the

first time that plaintiff lacked the authority to file its complaint because its board

did not authorize the lawsuit at a board meeting.

Plaintiff's Counsel's Letter Submission Concerning Ratification

      While the summary judgment motions were pending, plaintiff's counsel

submitted a February 13, 2017 letter to the court, with accompanying

attachments, stating that the association conducted a special meeting on

February 12, 2016, and a "ballot by mail" in accordance with its "[m]aster

[d]eed and [b]y-[l]aws" ratifying the July 18, 2014 vote to approve the $60,000

per unit special assessment and the October 2014 retention of the contractor to

perform the siding and deck replacements. 6 Plaintiff's counsel further stated that

he provided defendant notice of the special meeting and ballot-by-mail by faxing

a notice to her counsel nine days prior to the scheduled meeting date. Plaintiff's

counsel attached documents to his letter including the notice of the meeting, a



6
  The letter further advised that the ballot-by-mail ratified an October 25, 2015
approval of an additional $20,000 per unit special assessment. Defendant does
not challenge the board's approval of that assessment.


                                                                              A-4709-16T4
                                          9
ballot and a resolution memorializing the ratification vote. Although pl aintiff's

counsel's rendition of the facts related to the ratification was unsupported by any

affidavit or certification, see R. 1:6-6, he requested that the court consider the

letter and documents, and asserted that because the $60,000 special assessment

and retention of the contractor were ratified, "there is no reason why [s]ummary

[j]udgment should not be entered in favor of . . . plaintiff and against defendant."

The Trial Court's Decision

      After hearing argument on the summary judgment motions, the court

issued a written decision finding defendant was "entitled to notice [of] the July

18, 2014 meeting" pursuant to Section 3.04 of plaintiff's by-laws regardless of

whether she had fees and assessment arrearages at the time. In pertinent part,

Section 3.04 provides that notice of plaintiff's meetings shall be given to unit

owners "not less than ten (10) days nor more than ninety (90) days before the

day on which the meeting is to be held."

      The court also determined there was a genuine issue of material fact as to

whether defendant received notice of the July 18, 2014 meeting but that the

dispute over defendant's receipt of the notice was not material. The court

reasoned that defendant was not prejudiced by any alleged failure to provide

notice of the meeting because she was ineligible to vote under plaintiff's by-laws


                                                                            A-4709-16T4
                                        10
due to her delinquency in the payment of fees and assessments, and she made

no showing that had she been given notice of the meeting, she had the ability to

timely pay the amount due and restore her voting eligibility prior to the meeting. 7

      The court also determined that plaintiff's master deed authorized the July

18, 2014 $60,000 per unit special assessment and the subsequent retention of

the contractor to perform the siding and deck replacements.8              The court

concluded that although plaintiff did not approve the retention of the siding and

deck replacement contractor at a formal meeting prior to the contractor's

commencement of the work, the decision to retain the contractor was not ultra

vires because the master deed granted plaintiff "the capacity to award the

construction contract . . . as a special assessment."

      The court further determined that any alleged failures to comply with the

master deed and by-laws in plaintiff's adoption of the $60,000 special



7
    Section 2.09 of the association's by-laws provides that a unit owner shall be
entitled to vote at the association's meetings "if [s]he has fully paid all
installments due for assessments made or levied against [her] and [her] Unit
. . . together with all interest, costs, attorney's fees penalties and other expenses
. . . at least three (3) days prior to the date fixed for such meeting."
8
   The court relied on Section 6.10 of the master deed that in pertinent part
authorizes the association board to levy "a [s]pecial [c]ommon [e]xpense
[a]ssessment" for "the cost of any reconstruction, repair or replacement of an
existing [c]ommon [e]lement not determined . . . to constitute an emergency."
                                                                             A-4709-16T4
                                        11
assessment and hiring of the contractor were cured during the February 2016

board meeting and ballot-by-mail ratification vote.           The court rejected

defendant's contention that the ratification was void because she received notice

of the February 12, 2016 meeting and the ballot-by-mail nine days earlier,

instead of the ten days required under plaintiff's by-laws. The court found the

one-day difference was "de minimis and . . . [did] not materially prejudice

[d]efendant," and the February 12, 2016 ratification vote was "effective for

purposes of [the association's] claims."

      The court also rejected defendant's assertion that plaintiff's retention of

the contractor was void because the contractor is owned by plaintiff's board

president. The board president was not involved in the consideration of the bids

for the work or plaintiff's decision to hire his company. The court determined

there was no evidence plaintiff's retention of the company constituted "self -

dealing" or an "unconscionable" violation of its fiduciary duty to defendant and

the decision was protected by the business judgment rule, which protects a

corporation's internal decisions absent a "showing of fraud or lack of good

faith."

      The court awarded attorney's fees to plaintiff, finding the master deed

explicitly provides for plaintiff's recovery of attorney's fees incurred to collect


                                                                           A-4709-16T4
                                       12
unpaid assessments, and "[d]efendant may not defeat summary judgment on this

issue by conclusory allegations." The court explained that it reviewed the

invoices supporting plaintiff's fee request and found "that the attorney's fees

[were] reasonable in relation to the time spent and efforts made in pursuing the

claim as well as the other cited fees, including receivership fees." The court

observed that defendant failed to "set forth any facts that would put into question

the reasonableness of the attorney's fees sought by" plaintiff.

      The court entered an order granting plaintiff's motions for summary

judgment, dismissing the counterclaim and entering judgment in the amount of

$377,815.09 plus costs in plaintiff's favor. 9 This appeal followed.

                                         II.

      We apply the same standard as the trial court in our review of appeals

from summary judgment determinations. Lee v. Brown, 232 N.J. 114, 126

(2018). "Summary judgment is appropriate 'when no genuine issue of material

fact is at issue and the moving party is entitled to a judgment as a matter of law.'"

Ibid. (quoting Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J. 344, 366 (2016)).


9
   Annexed to the court's written opinion is a May 25, 2017 order. The court
issued a revised order on June 6, 2017. The record does not reflect the reason
for entry of the revised order. In any event, the revised order does not include
any substantive changes to the initial order.


                                                                             A-4709-16T4
                                        13
We conduct a de novo review of the court's determination of legal issues, Ross

v. Lowitz, 222 N.J. 494, 504 (2015), and its application of the law to the

undisputed facts, Lee, 232 N.J. at 127.

      Under Rule 4:46-2(c), summary judgment is granted "if the pleadings,

depositions, answers to interrogatories and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." See also Burnett v. Gloucester Cty. Bd. of Chosen Freeholders,

409 N.J. Super. 219, 228 (App. Div. 2009). In applying the standard to our

review of a summary judgment determination, we "must view the facts in the

light most favorable to the non-moving party." Bauer v. Nesbitt, 198 N.J. 601,

604-05 n.1 (2009); see also R. 4:46-2(c); Brill, 142 N.J. at 540. Moreover, "[a]n

issue of fact is genuine only if, considering the burden of persuasion at trial, the

evidence submitted by the parties on the motion, together with all legitimate

inferences therefrom favoring the non-moving party, would require submission

of the issue to the trier of fact." R. 4:46-2(c); Bhagat v. Bhagat, 217 N.J. 22, 38

(2014) (quoting R. 4:46-2(c)).

      We begin our analysis by observing that defendant's arguments are

limited. Defendant first contends the court erred by finding plaintiff properly


                                                                            A-4709-16T4
                                        14
approved the $60,000 per unit special assessment and the hiring of the

contractor, and in its determination of the attorney's fees due to plaintiff. She

does not contest the court's determination that plaintiff is otherwise entitled to

summary judgment on its claims for other outstanding amounts due for unpaid

dues, fees and assessments. That amount totals $85,949.09. 10 We limit our

discussion to the issues raised directly in defendant's brief. An issue not briefed

on appeal is deemed waived. Jefferson Loan Co. v. Session, 397 N.J. Super.

520, 525 n.4 (App. Div. 2008); Zavodnick v. Leven, 340 N.J. Super. 94, 103

(App. Div. 2001).

      A condominium association's "operations are governed not only by the

Condominium Act, but also through the contents of the master deed and the

condominium by-laws." Jennings v. Borough of Highlands, 418 N.J. Super. 405,

420 (App. Div. 2011).       Plaintiff exercises its authority "[s]ubject to the

provisions of the master deed, the by[-]laws, rules and regulations and the



10
   As noted, in support of its motion for summary judgment, plaintiff claimed
$205,949.09 in damages for fees, assessments and costs, excluding attorney's
fees. On appeal, defendant challenges only the court's determination plaintiff is
entitled to $120,000 in damages based on the $60,000 per unit special
assessment. Thus, defendant does not challenge the court's award of $85,949.09
to plaintiff.



                                                                           A-4709-16T4
                                       15
provisions of [the Condominium Act, N.J.S.A. 46:8B-1 to -38] or other

applicable law," N.J.S.A. 46:8B-15, and defendant does not dispute that the

$60,000 per unit assessment constituted a special assessment 11 which required

approval at a meeting of plaintiff's board held in accordance with the master

deed and by-laws. We therefore first address the requirements of the master

deed and by-laws for approval of special assessments.

      Section 6.10 of the master deed imposes specific and express requirements

for board approval of special assessments. It provides that approval of special

assessments must "receive the assent of two-thirds (2/3) in interest of the

affected [m]embers in [g]ood [s]tanding." In addition, the vote on a special

assessment "shall be taken at a meeting duly called for [that] purpose." It also

provides that notice of the meeting "shall be sent to all [u]nit [o]wners no less

than thirty (30) days in advance."

      The requirements of Section 6.10 of the master deed, at least as it concerns

the requirements for board approval of the $60,000 per unit special assessment,

were ignored by the motion court. Instead, the motion court relied on Section



11
    The July 18, 2014 resolution described the $60,000 per unit assessment as a
"special assessment" and the motion court determined the board was authorized
to impose the assessment under Section 6.10 of the by-laws, which applies only
to special assessments.
                                                                          A-4709-16T4
                                      16
3.04 of the by-laws to define the requirements for the board's putative approval

of the special assessment. In pertinent part, Section 3.04 of the by-laws provides

that "[e]xcept as otherwise provided by law . . . notice of each meeting of the

[u]nit [o]wners [12] . . . shall be given not less than ten (10) days nor more than

ninety (90) days before the day on which the meeting is to be held."

      Here, Section 6.10 of the master deed sets the benchmark against which

the board's attempts to approve the $60,000 per unit special assessment must be

measured. Plaintiff must act in accordance with its master deed and by-laws,

N.J.S.A. 46:8B-15, and Section 6.10 expressly defines the requirements for

plaintiff's adoption of a special assessment. Moreover, Section 6.10 is wholly

consistent with Section 3.04 of the by-laws because Section 3.04 provides that

notice of a meeting must be given on not less than ten days' nor more than ninety

days' written notice, and thus makes provision for the thirty days' notice

mandated by Section 6.10 for the approval of special assessments. In addition,

even if there was a conflict between Section 3.04 of the by-laws and Section




12
  N.J.S.A. 46:8B-3(q) defines "unit owner" as "the person or persons owning a
unit in fee simple." The statutory definition is incorporated by reference in
Section 1.02 of plaintiff's by-laws. Defendant is a unit owner of two units in
Townhomes at Blue Water, a Condominium.
                                                                           A-4709-16T4
                                       17
6.10 of the master deed, Section 13.01 of the by-laws provides that "the

requirements of [the] [m]aster [d]eed . . . shall be deemed controlling."

       We agree with the motion court that the evidence presented by the parties

revealed a fact issue as to whether plaintiff sent defendant notice of the July 18,

2014 meeting. We are not, however, persuaded by plaintiff's contention, and

the court's finding, that a failure to provide defendant with notice of the July

2014 meeting is immaterial because defendant made no showing she had the

ability to pay the amounts due prior to the meeting and thereby obtain

reinstatement of her voting privileges.

      As defendant correctly argued before the motion court, plaintiff did not

present evidence showing it complied with the requirements of Section 6.10 of

the master deed because, even accepting its assertions as true, notice was sent

to the unit owners on June 27, 2014, less than the required thirty days prior to

the July 18, 2014 meeting. In addition, although Section 2.09 of the by-laws

provides that only unit owners who are current in their payment of all

assessments, interest, costs and attorney's fees may participate in board votes,

Section 6.10 of the master deed requires that notice of a meeting at which a

special assessment may be approved shall be given to all "unit owners"

regardless of whether they are current in their obligations to plaintiff or not. See


                                                                            A-4709-16T4
                                        18
N.J.S.A. 45:22A-46(a) (2016) 13 (requiring "adequate notice" be sent to "all unit

owners" of condominium association meetings at which binding votes will be

taken and that "all unit owners" be permitted to attend such meetings); N.J.S.A.

46:8B-13(a) (providing, with certain specified exceptions, that condominium

association board meetings "shall be open to attendance by all unit owners").

      Defendant's status as an ineligible voter did not excuse plaintiff's failure

to provide defendant with the required notice of the July 2014 meeting. Under

plaintiff's master deed and by-laws, defendant was entitled to attend the meeting

whether she was eligible to vote or not. Because the record is devoid of any

evidence plaintiff provided timely notice under Section 6.10 of the master deed,

and there is otherwise a genuine issue of fact as to whether late notice under

Section 6.10 was sent at all, plaintiff was not entitled to summary judgment

finding plaintiff properly approved the $60,000 per unit assessment at the July

2014 meeting.

      In an effort to salvage its failure to comply with the requirements of its

master deed and by-laws, plaintiff argues it ratified the July 2014 approval of

the special assessment at a February 2016 meeting and ballot-by-mail vote. The


13
   An amendment to N.J.S.A. 45:22A-46(a) replaced the reference to "unit
owners" with "association members, and voting-eligible tenants where
applicable." L. 2017, c. 106, § 7.
                                                                          A-4709-16T4
                                       19
argument, however, is supported only by plaintiff's counsel's February 13, 2017

letter to the court and the documents related to the ratification that were attached.

Although we do not question the veracity of counsel's letter, it is inadequate to

support a conclusion the special assessment was ratified. Conclusory assertions

without support in an affidavit or certification based upon the personal

knowledge of the affiant cannot support or defeat a motion for summary

judgment. Ridge at Back Brook, LLC, v. Klenert, 437 N.J. Super. 90, 97-98

(App. Div. 2014); Brae Asset Fund, LP v. Newman, 327 N.J. Super. 129, 134

(App. Div. 1999); see also Celino v. Gen. Accident Ins., 211 N.J. Super. 538,

544 (App. Div. 1986) (explaining that facts relied on to support a summary

judgment motion must "be submitted to the court by way of affidavit or

testimony" and not by presentation of argument in a brief).

      In any event, even if the facts concerning the ratification were properly

supported by an affidavit, certification or other competent evidence, plaintiff is

not entitled to judgment on its claim for the $60,000 per unit special assessment.

To be sure, plaintiff is entitled to ratify the assessment because it had the legal

authority to impose the assessment in the first instance. See Port Liberte II

Condominium Ass'n v. New Liberty Residential Urban Renewal Co., 435 N.J.

Super. 51, 65 (App. Div. 2014) (finding condominium association may ratify an


                                                                             A-4709-16T4
                                        20
action it has the legal authority to perform). However, a ratification is valid

only if it is "accomplished 'with the same formalities required for the original

exercise of power.'" Id. at 66 (quoting Grimes v. City of East Orange, 288 N.J.

Super. 275, 280 (App. Div. 1996)).

      Based on the information contained in plaintiff's counsel's February 13,

2017 letter, plaintiff did not ratify the assessment in accordance with formalities

required under Section 6.10 of the master deed. Notice of the meeting was sent

only nine days prior to its scheduled date, and not the thirty days required under

Section 6.10. In addition, Section 6.10 mandates that approvals of special

assessments must take place at a board meeting, and plaintiff opted for a ballot -

by-mail vote.14 Thus, plaintiff failed to present evidence it complied with the

requirements of Section 6.10 in obtaining its board's putative ratification of the

invalid July 2014 approval of the $60,000 per unit special assessment. Lacking



14
    We reject the notion that Section 3.09 of the by-laws, which allows a ballot-
by-mail "in lieu of calling a membership meeting," authorized the ballot-by-mail
procedure used here. As noted, plaintiff was required to ratify the special
assessment in accordance with the formalities required under Section 6.10 of the
master deed. Again, Section 6.10 mandates that votes on special assessments
shall take place at a duly noticed meeting, and the by-laws provide that if there
is a conflict between the by-laws and the master deed, the master deed controls.
As such, plaintiff cannot properly conduct a ballot-by-mail for approval of a
special assessment under Section 6.10 of the master deed.


                                                                           A-4709-16T4
                                       21
any evidence that plaintiff's attempted ratification complied with the dictates of

the master deed for approval of a special assessment, we are constrained to

conclude the ratification is null and void and does not revive the otherwise

invalid July 2014 approval of the special assessment. See ibid. We therefore

reverse   the   court's   summary   judgment     order   dismissing   defendant's

counterclaim challenging the $60,000 per unit special assessment and granting

summary judgment, awarding plaintiff $120,000 in damages based on

defendant's alleged failure to pay the assessment, and remand for further

proceedings on those claims.

      Defendant also argues the court erred by finding plaintiff properly ratified

the October 1, 2014 retention of the contractor to perform the siding and deck

replacements. The retention of a contractor, as opposed to the approval of the

special assessment of the project, is not governed by Section 6.10 of the master

deed, but it is subject to the requirements of the by-laws. We again note that the

record presented does not allow a determination of the issue because the facts

supporting the alleged ratification are not supported by competent evidence. We




                                                                          A-4709-16T4
                                       22
therefore reverse the court's order dismissing defendant's counterclaim

challenging plaintiff's retention of the contractor on that basis alone. 15

      We find no error in the court's determination, for which there was an

adequate record based on competent evidence, that proper ratification of the

retention of the contractor would be protected under the business judgment rule.

Under the business judgment rule:

             when business judgments are made in good faith based
             on reasonable business knowledge, the decision makers
             are immune from liability from actions brought by
             others who have an interest in the business entity. The
             business judgment rule generally asks (1) whether the
             actions were authorized by statute or by charter, and if
             so, (2) whether the action is fraudulent, self-dealing or
             unconscionable.

             [Seidman v. Clifton Sav. Bank, 205 N.J. 150, 175
             (2011) (quoting Green Party v. Hartz Mountain Indus.,
             164 N.J. 127, 147-48 (2000))].




15
   We observe, however, Section 3.09 of the by-laws generally allows for ballot-
by-mail approval of questions by plaintiff's board and, unlike approvals for
special assessments, there is nothing in the master deed or by-laws that prohibits
its application to the unit members' approvals of the retention of contractors.
We do not decide what impact plaintiff's failure to authorize and ratify the July
2014 approval for the siding and deck replacement project has on the validity of
any ratification of its retention of the contractor to perform the work. The issue
is not directly addressed by the parties and may be considered as necessary and
appropriate by the remand court.


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"[D]ecisions made by a condominium association board should be reviewed by

a court using the . . . business judgment rule." Alloco v. Ocean Beach & Bay

Club, 456 N.J. Super. 124, 134 (App. Div. 2018) (quoting Walker v. Briarwood

Condo Ass'n, 274 N.J. Super. 422, 426 (App. Div. 1994)).

      Here, the record is bereft of any evidence showing on basis to conclude

that retention of the contractor in October 2014 was founded on fraud or self-

dealing or is otherwise unconscionable. If on remand competent evidence shows

the ratification of the retention of the contractor occurred in accordance with the

requirements of Section 3.09 of the by-laws, the February 2016 approval of the

retention of the contractor is protected under the business judgment rule. See

e.g., id. at 136 (finding plaintiff did not overcome the "rebuttable presumption"

that the actions of a homeowner's association were valid under the business

judgment rule where plaintiff did not carry the burden of showing the actions

were "fraudulent, self-dealing, or unconscionable").

      We next consider defendant's contention the court erred by granting

plaintiff's request for $171,866 in attorney's fees. She does not dispute that the

by-laws authorize plaintiff's recovery of attorney's fees for the costs of

collecting overdue fees and assessments but argues, as she did before the motion

court, that the fees claimed are unreasonable.


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                                       24
      The reasonableness of a counsel fee application is governed by Rule of

Professional Conduct 1:5(a) and Rule 4:42-9(b). City of Englewood v. Exxon

Mobile Corp., 406 N.J. Super. 110, 124-25 (App. Div. 2009). R.P.C. 1:5(a)(1)

to (7) identify seven factors a court is required to consider in assessing the

reasonableness of attorney's fees. Id. at 125. Further, in its consideration of an

award of fees, a "court must analyze [the seven] factors . . . and then must state

its reasons on the record for awarding a particular fee." Ibid. (quoting Furst v.

Einstein Moomjy, 182 N.J. 1, 22 (2004)). A court's statement of its reasons

addressing each factor "is fundamental to the fairness of the proceedings and

serves as a necessary predicate to meaningful review." Ibid. (quoting R.M. v.

Supreme Court of N.J., 190 N.J. 1, 12 (2007)).

      Here, the court generally found the claimed fees were reasonable but

neither addressed each of the R.P.C. 1:5(a) factors nor made the requisite

findings as to each supporting plaintiff's substantial fee award. For that reason

alone, we vacate the attorney's fees award and remand for the court to consider

and make detailed findings concerning the substantial fees claimed by plaintiff's

counsel.

      We note for example that the court did not consider the "amount involved"

and recovered for plaintiff's damages as required that under R.P.C. 1:5(a)(4),


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                                       25
and did not assess the reasonableness of $171,866 in attorney's fees to collect

$205,949.09 in purported damages.        And now, when the invalid $120,000

invalid special assessment on defendant's two units is stripped from the court's

damage award, the court must consider the reasonableness of $171,866 in

attorney's fees where the "amount involved" is $85,949.09 in damages.

      Moreover, in its determination of the reasonableness of the fees and the

results obtained, the court shall also consider that despite the substantial

attorney's fees charged for services related to the July 2014 meeting and

subsequent February 2016 putative ratification, those attempts at approving the

$60,000 special assessment are invalid. Thus, the ensuing collection efforts and

litigation related to those meetings, putative approvals and the assessment itself

are the result of plaintiff's ineptitude for which defendant is not obligated to pay

plaintiff's attorney's fees. Of course, the court should consider any other facts

and circumstances relevant to a determination of the reasonableness of the fees

on remand.

      Last, we do not address defendant's claim that plaintiff lacked authority to

prosecute this matter because it was not authorized to do so by the board. The

issue was first raised before the motion court in defendant's sur-reply brief in

connection with plaintiff's summary judgment motions. We offer no opinion on


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                                        26
the issue because the record is bereft of competent evidence permitting a

resolution of the claim, which was not asserted in defendant's counterclaim.

Defendant may make the argument before the motion court on remand.

      Any arguments raised by defendant that we have not expressly addressed

are without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

      Affirmed as to the court's award of summary judgment on plaintiff's claim

for $85,949.09 for overdue fees, assessments and costs. Reversed as to the

court's award of summary judgment to plaintiff for $120,000 for the $60,000 per

unit special assessment and dismissing defendant's counterclaim challenging the

$60,000 per unit special assessment and the board's retention of the contractor.

We vacate the award of $171,866 in attorney's fees to plaintiff. The matter is

remanded for further proceedings. We do not retain jurisdiction.




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