                                NOT FOR PUBLICATION WITHOUT THE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-1517-17T2

COMMUNITY CORPORATION OF
HIGH POINT, INC.,

                    Plaintiff-Respondent,

v.

PONKY, INC., JAMES GOLDEN,
KRUMPFER REAL ESTATE, LLC and
JOSEPH KRUMPFER,

          Defendants-Appellants.
_______________________________________

                    Argued September 12, 2018 – Decided September 27, 2018

                    Before Judges Yannotti and Natali.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Sussex County, Docket No. C-
                    000017-17.

                    Robert J. Kenny argued the cause for appellants
                    (Hoagland, Longo, Moran, Dunst & Doukas, LLP,
                    attorneys; Kathleen Huntley-Robertson and Richard J.
                    Mirra, of counsel and on the briefs; Ken Cesta and
                    Robert J. Kenny, of counsel).

                    Jared M. Lans argued the cause for respondent.
PER CURIAM

      In this appeal, we consider whether the trial court erred in permanently

enjoining defendants from constructing and operating a real estate office

contrary to a homeowners' association's by-laws. After a careful review of the

record, we conclude the procedural framework outlined in Rules 4:52-1 and -2

precluded the entry of a permanent injunction. However, because plaintiff

clearly and convincingly established the need for interim injunctive relief in

accordance with Crowe v. DeGioia, 90 N.J. 126 (1982), we vacate the order

under review to the extent it granted a permanent injunction, modify the order

to impose preliminary injunctive relief, and remand the matter to the trial court

for further proceedings.

      Plaintiff Community Corporation of High Point, Inc. (CCHP) is a

homeowners' association that manages, maintains, and operates a residential,

membership-based community known as High Point Country Club Community

(Community) located in Montague Township, New Jersey.            It was created

pursuant to the January 2, 1985 order entered by the court in Altamount

Development Corp. v. Property Owners, et al., Sussex County, Docket No. C-

4307-81E (Ch. Div. 1985) (Altamount Order). The Altamount Order established



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                                       2
the Community within Montague Township's R-4 zone, a high density

residential district that permits:

             (a) Single-family detached [housing];
             (b) [and the] following uses existing at the time of
             adoption of [the R-4 residential district]:
                   1. Single-family semi-detached residences;
                   2. Two-family detached, two-family semi-
                      attached residences;
                   3. Multiple dwellings containing not more than
                      six (6) dwelling units;
                   4. Golf courses; [and]
                   5. Restaurants, Taverns and Bars.

       The Altamount Order further created a scheme of restrictions and

covenants that affect all land, premises and dwelling units within the

Community. Consistent with the Altamount Order, CCHP established a Board

of Trustees (CCHP Board) charged with adopting by-laws to administer and

manage the residences and recreational facilities. Article 6, Section 4 of the by-

laws provides:

             [e]xcept for commercial uses which are in existence on
             the date the [b]y-[l]aws become effective, there shall be
             no commercial uses conducted in any Dwelling Unit or
             within the Community except by express written
             consent of the [CCHP Board]. Nothing in this Section
             shall be deemed to abrogate or impair any law, statute,
             ordinance, covenant, agreement or restriction in any
             manner prohibiting such commercial use.




                                                                          A-1517-17T2
                                        3
      Defendant Ponky, Inc., (Ponky) owns a golf course and clubhouse within

the Community and is subject to the by-laws. Defendant Joseph Krumpfer is

the owner and managing member of defendant Krumpfer Real Estate, LLC

(Krumpfer Real Estate), a New Jersey-licensed real estate company.

      In March 2017, plaintiff became aware that Ponky intended to lease a

portion of the clubhouse, previously used for CCHP board meetings, to

Krumpfer Real Estate for use as a sales office. Shortly thereafter, plaintiff

notified Ponky that its proposed actions violated Article 6, Section 4 of the by -

laws and that Ponky was required to obtain written approval from the CCHP

Board before the lease could proceed. According to plaintiff, without any

municipal approvals and despite the clear language in the by-laws and its written

objection, Ponky nevertheless commenced construction at the clubhouse.

      Eventually, Ponky sought approval from the CCHP Board and a meeting

was scheduled to vote on Ponky's request after notice was sent to the

Community. Prior to the meeting, the CCHP Board received a letter from

another CCHP resident who requested permission to operate a real estate office

and insurance brokerage within the Community in the event that Ponky's

application was granted. The CCHP Board voted against defendants' request at

its May 7, 2017 annual meeting.


                                                                          A-1517-17T2
                                        4
      Defendants applied to the Montague Township Land Use Board (MTLUB)

for a use variance, which would allow Krumpfer Real Estate to operate the real

estate office in the clubhouse. On June 2, 2017, after Montague Township

issued a stop work order, defendants ceased all construction work.

      On June 5, 2017, plaintiff filed a verified complaint and order to show

cause seeking a preliminary and permanent injunction to enjoin defendants from

"continuing any activity to convert the existing space into a real estate office"

and restraining defendants from "making application before the MTLUB for a

use variance to permit the real estate office" in the clubhouse. Plaintiff also

sought a mandatory injunction restoring the property to its previous condition

and to provide plaintiff with appropriate space to conduct meetings.

      In response to the order to show cause, the Krumpfer defendants filed only

a letter brief without accompanying affidavits or certifications. Ponky and

defendant James Golden, Ponky's owner and managing member, filed a letter

brief with a certification from Golden claiming the verified complaint was

unauthorized because it was not approved by the CCHP Board.

      On June 26, 2017, after oral argument, the court denied plaintiff's request

for interim injunctive relief.   The court considered the Crowe factors, and

determined that a temporary restraining order was not warranted based, in large


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                                       5
part, on the absence of irreparable harm as Montague Township had issued a

stop work order. The court reasoned that because defendants were in a "stop

work situation", injunctive relief was unnecessary at that time. The court

adjourned the order the show cause "for a relatively short return date" until after

the next MTLUB meeting, scheduled for July 2017, when defendants' pending

variance application was expected to be decided. Anticipating that the MTLUB

would meet as scheduled, the court re-scheduled the hearing on the order to

show cause for July 10, 2017.

      The MTLUB met on July 14, 2017, but defendants requested the first of

four adjournments. On October 12, 2017, the MTLUB dismissed defendants'

variance application without prejudice.

      As a result of the adjournments, the previously scheduled July 10, 2017

order to show cause hearing was rescheduled to October 19, 2017. Other than

the previously filed Golden certification, defendants submitted no further

certifications or affidavits in opposition to plaintiff's application and failed to

answer the verified complaint.

      After oral argument, the court issued an oral opinion and concluded that

plaintiff satisfied Crowe's four-prong test for preliminary injunctive relief. The




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                                          6
court determined that permitting a non-conforming use in the Community

constituted irreparable harm because:

            [t]here is a community scheme. The defendants don't
            seem to accept that. But we have here a community
            association designed to be a residential area within
            certain narrow exceptions.        And the court can
            understand the community's desire to maintain – the
            ambiance, if you will, and the plan and scheme and the
            atmosphere of a community with … at least no new
            commercial undertakings. Disruption of that scheme
            can amount to irreparable harm because property
            owners have acquired their properties on the
            understanding that the community would be
            maintaining pursuant to its … constitution, which is the
            [Altamount Order] and its by[-]laws, and the consent
            orders into which the parties have entered in the past.

      The court further concluded that the legal right underlying plaintiff's claim

was settled because the by-laws expressly precluded launching "a new

commercial undertaking . . . without the [CCHP Board's] authority or without

the [CCHP Board's] approval." As to the third prong of Crowe, the court ruled

that plaintiff established a reasonable probability of success on the merits

because of the "proof submitted by way of the verification in the verified

complaint" and the paucity of competing evidence. The court stated:

            the only record evidence that the court has is that
            attached to the verified complaint, as well as the
            certification that Mr. Golden did submit . . . most of
            which is hearsay and none of which addresses directly
            the issues raised in the verified complaint.

                                                                           A-1517-17T2
                                        7
                   ....

            I don’t know that to make of [defendants' argument]
            because I don't have any proof of it. What I have is a
            by[-]law that says in order to operate commercially
            within the community, there has to be [CCHP Board]
            approval. And there's no approval.

      Finally, the court determined the equities favored plaintiff because Ponky

understood the community scheme prior to contracting with the Krumpfer

defendants and was obligated to obtain the CCHP Board's written approval

before embarking on a new commercial undertaking at the clubhouse.

      While the court applied the Crowe criteria for a preliminary injunction

and found that plaintiff had established that relief was warranted, the court did

not enter a preliminary injunction. Instead, the court entered a "narrow order of

injunction" on November 13, 2017 that permanently "enjoined and restrained

defendants from continuing any activity to convert the clubhouse space into a

real estate office and otherwise operating a real estate office" at the clubhouse

without first obtaining legally required approvals, including from the CCHP

Board. The court referred the remaining claims in the verified complaint to

arbitration in accordance with the terms of a prior consent order entered between

the parties and dismissed the litigation.



                                                                         A-1517-17T2
                                            8
      Defendants appeal and raise the following arguments: (1) the trial court

erred in granting plaintiff a permanent injunction and terminating the action on

the return date of the order to show cause; (2) the trial court erred in granting

plaintiff a permanent injunction because plaintiff failed to show a continuing

irreparable harm; (3) the trial court erred in granting plaintiff a permanent

injunction because it made an erroneous and unsupported conclusion that

defendant Ponky was required to gain approval by the CCHP Board of Trustees

prior to leasing the clubhouse space for use as a real estate office; and (4)

defendants were denied due process when the trial court granted plaintiff a

permanent injunction on the order to show cause return date and terminated the

action prior to a full and fair hearing.

      We agree with defendants that the trial court erred in granting a permanent

injunction on the return date for the order to show cause. As explained by the

court in Waste Management v. Union County Utilities Authority, 399 N.J.

Super. 508, 516 (App. Div. 2008), "[t]he process adopted in our court rules for

seeking injunctive relief applications … does not allow for an order to show

cause for the entry of a permanent injunction; rather, it permits only the entry of

an order requiring a party to show cause why a temporary restraint or an

interlocutory injunction should not issue." Id. (emphasis in original) (citing R.


                                                                           A-1517-17T2
                                           9
4:52–1 and 2; Solondz v. Kornmehl, 317 N.J. Super. 16, 20–21, (App. Div.

1998)).

      In addition, we note that the order to show cause vaguely referenced

plaintiff's intention to proceed as a "summary action." Our court rules, however,

precluded plaintiff from proceeding in this fashion. Although Rule 4:67-1(a)

permits "the entry of an order at the commencement of the action that requires

a defendant to show cause why final judgment should not be entered," Waste

Management, 399 N.J. Super. at 516, n.2, proceeding under this Rule is allowed

only when a "rule or statute" authorizes the court to resolve the matter

summarily. Id. Here, there was no applicable rule or statute that permitted

plaintiff to proceed summarily.

      Further, a permanent injunction was improperly issued here because

neither the proposed order to show cause nor the resulting proceedings

suggested that defendants consented to summary disposition of the dispute.

While the verified complaint sought permanent and preliminary injunctive

relief, the order to show cause requested, in addition to interim relief prior to

the return date, only "preliminary restraints."

      In addition, at the October 19, 2017 return date, the court clearly treated

the matter as a proceeding to issue a preliminary injunction. For example, the


                                                                         A-1517-17T2
                                       10
court relied on Crowe rather than Sheppard v. Township of Frankford, 261 N.J.

Super. 5, 10 (App. Div. 1992), which addresses the standard for permanent

injunctive relief, and the court characterized the proceeding as an adjournment

of the June 26, 2017 hearing which denied "the application for injunctive relief

on a temporary basis."

      Consequently, we do not find persuasive plaintiff's arguments that the

word "summary" in the order to show cause or the provision that default would

be entered if defendants failed to answer, somehow alerted defendants that a

permanent injunction would issue at the October 19, 2017 proceeding. As the

Waste Management court explained:

            [w]e are mindful that in practice it is not unheard of for
            parties to consent to a final determination on the return
            of an order to show cause for an interlocutory
            injunction when the facts are not in dispute or when an
            evidentiary hearing would add no illumination to the
            court's resolution of the issues presented. It is also not
            uncommon, when a plenary hearing is conducted for the
            purposes of resolving factual disputes on an
            interlocutory injunction application, for the parties to
            consent to have the trial judge render a final judgment.
            Such a sensible and practical approach often provides
            the parties with a swift and efficient resolution of their
            disputes that is not inconsistent with our rules of
            procedure, which favor “just determination[s],
            simplicity in procedure, fairness in administration and
            the elimination of unjustifiable expense and delay.” R.
            1:1–2. (citations omitted). Accordingly, we do not
            intend to preclude pragmatism in the resolution of

                                                                         A-1517-17T2
                                       11
            disputes, but we must insist that such an approach is
            only appropriate when the parties understand and
            consent to a summary disposition of their disputes.
            Otherwise, the process would possess only the qualities
            of simplicity and efficiency, not fairness or justice.

            [Waste Management, 399 N.J. Super. at 518 (emphasis
            added).]

      Although we have determined that the trial court erred by entering a

permanent injunction, we conclude the record supports the trial court's findings

on the Crowe factors. Based on those findings, the court should have entered a

preliminary injunction to preserve the status quo pending further proceedings on

plaintiff's complaint. Id. at 519.

      In Crowe, the Supreme Court clearly established the standards for

granting a preliminary injunction. Paternoster v. Schuster, 296 N.J. Super. 544,

555-56 (App. Div. 1997) (citing Crowe, 90 N.J. at 132–34). When a trial court

determines whether to grant interim injunctive relief, it must consider: (1)

whether the injunction is “necessary to prevent irreparable harm;" (2) whether

“the legal right underlying the 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.” Crowe, 90 N.J. at 132–34. These factors must be clearly

and convincingly established. McKenzie v. Corzine, 396 N.J. Super. 405, 414

                                                                          A-1517-17T2
                                       12
(App. Div. 2007); Subcarrier Communications, Inc. v. Day, 299 N.J. Super. 634,

639 (App. Div. 1997). And, "although it is generally understood that all these

factors must weigh in favor of injunctive relief," McKenzie, 396 N.J. Super. at

414, a more flexible approach may be applied when the preliminary injunction

seeks to merely to maintain the status quo. Waste Management, 399 N.J. Super.

at 520 (citing General Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J. Super.

234, 236-37 (App. Div. 1955)).

      As noted, the court must consider whether the applicant demonstrated a

reasonable likelihood of success on the merits. Crowe, 90 N.J. at 133. This

involves a fact sensitive analysis that "requires a determination of whether the

material facts are in dispute and whether the applicable law is settled." Waste

Management, 399 N.J. Super. at 528 (citations omitted).           However, when

considering this factor in the context of a preliminary injunction:

            doubt about a suit's merits does not entirely preclude
            the entry of an interlocutory injunction designed to
            preserve the status quo. So long as there is some merit
            to the claim, a court may consider the extent to which
            the movant would be irreparably injured in the absence
            of pendente lite relief, and compare that potential harm
            to the relative hardship to be suffered by the opponent
            if an injunction preserving the status quo were to be
            entered. If these factors strongly favor injunctive relief,
            the status quo may be preserved through injunctive
            relief even though the claim on the merits is uncertain
            or attended with difficulties.

                                                                          A-1517-17T2
                                       13
            [Id. at 535 (citation omitted).]

      Here, the record shows that plaintiff established a reasonable likelihood

of success on the merits. The by-laws and related formation documents govern

the relationship between the parties. See Reilly v. Riviera Towers Corp., 310

N.J. Super. 265, 269 (App. Div. 1998) (holding that "the relationship between a

cooperative and its shareholders should be determined by its Certificate, by-

laws, and proprietary lease and that the documents must be read together");

Faunce v. Boost Co., 15 N.J. Super. 534, 538 (Ch. Div. 1951) (holding "[t]he

certificate of incorporation, constitution and bylaws of the corporation

constitute a contract between the corporation and its stockholders and the

stockholders inter sese").

       Under Article 6, Section 4 of the by-laws, "commercial uses" may not be

established in a dwelling unit in the Community without the express written

consent of the CCHP Board, except for those "in existence on the date [the] by -

laws became effective." The trial court interpreted the by-laws as clearly and

unequivocally precluding defendants from operating a real estate office in the

clubhouse because that specific use was not in existence when the by-laws

became effective. Plaintiff established a reasonable likelihood it will prevail on

its interpretation of the by-laws. It is undisputed that the CCHP Board rejected

                                                                          A-1517-17T2
                                       14
Ponky's request to construct space within the clubhouse for the purpose of a real

estate office.

      Defendants claimed that use of the space in the clubhouse for a real estate

office did not require approval by the CCHP Board of Trustees because similar

commercial uses existed when the by-laws became effective.              However,

defendants did not identify the prior uses that existed before the by-laws took

effect. Indeed, the trial court observed that defendants had submitted "no proof

about what has gone on in the past."        In this regard, we note that in his

certification, Golden did not provide details regarding the alleged prior

commercial use. Moreover, most of his certification consisted of statements that

were either irrelevant or inadmissible hearsay. Thus, based on the evidence

presented before the trial court, plaintiff established a reasonable likelihood of

success on its claim that the space in the clubhouse could not be used as a real

estate office without prior written approval of the CCHP Board.

      Moreover, the record supports the judge's finding that the injunctive relief

was warranted to prevent irreparable harm and preserve the status quo. As the

trial court correctly found, without injunctive relief, "the community scheme

would be compromised" and a deviation from that scheme would irreparably

harm the community and its members. In addition, no party has claimed that an


                                                                          A-1517-17T2
                                       15
adequate remedy of law exists to address a potential violation of the by-laws.

Finally, the record shows that the public interest will not be harmed by the grant

of a preliminary injunction.

      Defendants' claims that injunctive relief is unnecessary because

construction of the real estate office was halted, and zoning approval

applications abandoned without prejudice, is misplaced.           To the extent

defendants maintain these actions vitiate any claims of imminent irreparable

harm, we observe that defendants started construction without seeking CCHP

Board approval and did not cease when requested by plaintiff, but only when

Montague Township affirmatively issued a stop work order.            Under these

circumstances injunctive relief is warranted to preserve the status quo.

      Accordingly, we reverse the November 13, 2017 order to the extent it

granted a permanent injunction, modify the order to grant preliminary injunctive

relief, and remand the matter to the trial court for further proceedings on

plaintiff's complaint. We do not retain jurisdiction.




                                                                           A-1517-17T2
                                       16
