SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3338-16T2

JEROME MCCANN, MARY ANN VASTINO, 

and ERIN MCGOWAN,

Plaintiffs-Respondents,

v.

WHITEHALL MANOR CONDOMINIUM 

ASSOCIATION, INC.,

Defendant-Appellant.

___________________________________

Submitted June 5, 2018 – Decided June 29, 2018

Before Judges Mayer and Mitterhoff.

On appeal from Superior Court of New Jersey, 

Law Division, Somerset County, Docket No. 

L-1581-16.

Law Offices of Jeffrey S. Mandel, LLC, 

attorneys for appellant (Jeffrey S. Mandel,

of counsel and on the briefs).

Anthony X. Arturi, attorney for respondents.

PER CURIAM

Defendant Whitehall Manor Condominium Association, Inc. (the 

Association) appeals from a March 3, 2017 order entering judgment 

NOT FOR PUBLICATION WITHOUT THE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.
2 A-3338-16T2

in favor of plaintiffs Jerome McCann, Mary Ann Vastino, and Erin 

McGowan1 (former board members). We vacate the order and remand 

to the trial court for further proceedings. 

A detailed factual recitation is not required as our

determination is premised solely upon procedural grounds. 

Briefly, the Association filed suit against the former board 

members seeking access to an e-mail account used for Association 

business. Subsequent to the resolution of the Association's 

lawsuit, the former board members filed a complaint seeking

attorney's fees. The former board members alleged that, pursuant 

to the Association's by-laws, they were entitled to 

indemnification for legal fees incurred in defending against the 

Association's lawsuit. 

The former board members filed an order to show cause (OTSC)

in conjunction with their complaint. The December 16, 2016 OTSC, 

as signed by the judge, indicated that the matter was to "proceed 

as a summary proceeding pursuant to Rule 4:67-1(b)" and that the 

Association must show cause "why an [o]rder should not be entered 

converting this matter to a summary proceeding pursuant to R.

 

1 Plaintiffs were elected to serve as members of the Association's 

governing board and decided not to seek re-election.
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4:67-1(b)" on the scheduled return date.

2 On January 30, 2017, 

the Association filed opposition to the OTSC, stating the matter

required discovery and the Association did not consent to 

proceeding summarily. 

On the OTSC return date, the judge heard oral argument. The 

former board members requested the case proceed summarily, arguing

that discovery and testimony were not required to adjudicate their 

claim. The Association responded that it required discovery and 

that the matter should not be decided before the Association had 

the opportunity to set forth its affirmative defenses and 

counterclaims. 

On February 8, 2017, the judge decided the merits of the 

complaint, finding the former board members were entitled to 

indemnification. After the judge rendered her decision, the 

Association's counsel stated:

I was unaware that the [c]ourt was going to 

be considering the underlying relief at the 

hearing today . . . . [T]he Association's 

understanding was that a trial date would be 

set today, the Association would have an 

opportunity to respond to the pleadings rather 

than deciding the underlying relief prior to 

the Association even having filed its 

responsive pleading. 

 

2 The OTSC was adjourned to February 8, 2017, at the request of 

counsel for the Association.
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The judge reserved decision only as to the amount of fees to 

be awarded to the former board members, requesting the submission 

of an affidavit of services. On March 3, 2017, the judge entered 

an order awarding the former board members attorney's fees in the 

amount of $31,108.39.

 We review legal determinations based on an interpretation 

of the court rules de novo. In re Referendum to Repeal Ordinance 

2354-12 of West Orange, 223 N.J. 589, 596 (2015). A trial court's 

interpretation of a court rule is not entitled to any special 

deference. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 

N.J. 366, 378 (1995).

Rule 4:67-1(b) is applicable to 

actions in the Superior Court other than 

matrimonial actions and actions in which 

unliquidated monetary damages are sought, 

provided it appears to the court, on motion 

made pursuant to R. 1:6-3 and on notice to the 

other parties to the action not in default, 

that it is likely that the matter may be 

completely disposed of in a summary manner.

[R. 4:67-1(b).] 

The summary action rule is designed

to accomplish the salutary purpose of swiftly 

and effectively disposing of matters which 

lend themselves to summary treatment while at 

the same time giving the defendant an 

opportunity to be heard at the time plaintiff 

makes his [or her] application on the question 

of whether or not summary disposition is 

appropriate.
5 A-3338-16T2

[Pressler & Verniero, Current N.J. Court 

Rules, cmt. 1 on R. 4:67-1 (2018).] 

"Th[e] procedural requirements [of Rule 4:67-1(b)] serve

important objectives: to permit the presentation of a factual 

record and legal arguments to the court, and to ensure that the 

parties anticipate and address the standard for summary 

disposition before the court decides whether to grant that relief." 

Grabowsky v. Twp. of Montclair, 221 N.J. 536, 550 (2015). Summary 

disposition is only appropriate "when the parties understand and 

consent to a summary disposition of their disputes." Waste Mgmt.

of N.J., Inc. v. Union Cty. Utils. Auth., 399 N.J. Super. 508, 

518-19 (App. Div. 2008) (reversing a final judgment entered on the 

return date of an order to show cause, finding no "clear and 

unambiguous statement from the judge [or] unequivocal consent of 

the parties to a final resolution.")

Rule 4:67-1(b) requires that a party file a motion to proceed 

in a summary manner. Alternatively, consistent with the case law, 

both parties may consent to summary disposition. See Grabowsky, 

221 N.J. at 547. Here, there was no motion filed by the former 

board members to proceed summarily, and the Association did not 

consent to summary disposition. Indeed, both counsel believed 

that the issue to be decided on the return date of the OTSC was 

whether the matter would proceed summarily. The Association's 
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counsel lodged his objection to proceeding summarily and 

unequivocally stated that the Association did not consent to 

summary disposition of the action. As the Association did not 

consent to proceeding summarily and the former board members failed 

to file a motion to proceed in such a manner, we are constrained 

to vacate the March 3, 2017 order and remand the matter to the 

trial court. On remand, the trial court should permit the parties 

to argue why the matter should, or should not, proceed summarily,

and allow the Association to file an answer, affirmative defenses,

and counterclaim, and engage in any discovery that may be necessary

to adjudicate the matter on the merits.

The Association raises other issues on appeal. We need not 

decide those issues based on our decision to vacate and remand the 

matter to the trial court. On remand, we do not suggest the 

outcome of the matter on the merits.

Vacated and remanded. We do not retain jurisdiction.