NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0922-16T3
JERRY ALLOCO, EDWARD SHALVEY
and JOHN O'GRADY,
Plaintiffs-Appellants,
APPROVED FOR PUBLICATION
v.
August 22, 2018
OCEAN BEACH AND BAY CLUB, a New
Jersey Corporation, APPELLATE DIVISION
Defendant-Respondent,
and
OCEAN BEACH PEARL, LLC, a New
Jersey Limited Liability Company,
Defendant.
_____________________________________
Argued January 30, 2018 – Decided August 22, 2018
Before Judges Yannotti, Leone, and Mawla.
On appeal from Superior Court of New Jersey,
Chancery Division, Ocean County, Docket No.
C-000015-14.
Louis M. Flora argued the cause for appellants
(Giblin & Gannaio, attorneys; Louis M. Flora
and Brian T. Giblin, on the briefs).
Gregg S. Sodini argued the cause for
respondent (Cutolo Barros, LLC, and Law Office
of Steven J. Tegrar, attorneys; Gregg S.
Sodini and Andrew Stein, of counsel and on the
brief; Patricia M. Greeley, on the brief).
The opinion of the court was delivered by
LEONE, J.A.D.
Plaintiffs Jerry Alloco, Edward Shalvey, and John O'Grady
challenge the trial court's September 16, 2016 order denying their
motion for summary judgment and granting summary judgment to
defendant Ocean Beach and Bay Club ("Club"). We affirm.
I.
The following facts are undisputed. The Club, a New Jersey
not-for-profit corporation, was established to operate a community
consisting of approximately 986 lots individually owned by
members, with common areas including a clubhouse. The Club leases
a bay beach and an ocean beach from the original developer,
defendant Ocean Beach Pearl, LLC. Plaintiffs own homes in the
Club's community.
The Club was established in the 1950s, with the filing of a
map and deed by the Ocean Beach Corporation. The Club's
certificate of incorporation gave the Club the broad mandate "[t]o
promote and protect the general welfare and property rights of the
property owner members in the use and enjoyment of their property
at" the Club. The deed established a community scheme through
building restrictions which, among other things, provided that
"no[] more than one residence nor more than [a] one-story one-
family dwelling shall be allowed on any lot," and imposed setback
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requirements. The deed allowed the Club to adopt rules and
regulations concerning the construction and modification of homes
in the community.
The deed and bylaws require every resident to be a member of
the Club. The members elect the Board of Trustees (Board). The
Board manages the Club and is empowered to establish and change
the rules and the regulations as needed.
Superstorm Sandy damaged or destroyed many homes in the Club's
community, including plaintiffs' homes. As a result, in October
2014, March 2015, and November 2015, the Board enacted rule changes
and clarified and expanded building requirements connected with
flood zone compliance. Although these post-Sandy rule changes
allowed members to elevate their homes, Alloco was denied
permission to elevate his home even higher to allow the space
beneath the elevated structure to be used for parking.
In January 2014, plaintiffs filed a complaint in the trial
court. The second amended complaint contains four counts. In
count one, plaintiffs sought a declaratory judgment regarding the
obligation to reconstruct damaged properties. In count two,
plaintiffs sought declaratory and injunctive relief regarding the
enforcement and scope of the Club's restrictions and regulations,
and the approvals of applications for development.
3 A-0922-16T3
Count three alleged that the Board violated the business
judgment rule by adopting and enforcing its rules and regulations.
In particular, plaintiffs alleged the "Club acted incompetently
in devising regulations limiting the height of structures." They
also claimed the Club engaged in self-dealing and breached its
fiduciary duties to the members. Count four alleged the Club
failed to comply with the Club's certificate of incorporation,
violated public policy, and violated the New Jersey Nonprofit
Corporation Act, N.J.S.A. 15A:1-1 to 16-2. Plaintiffs sought
declaratory and injunctive relief, counsel fees, and costs.
The claims in count one and most of the claims in count two
were resolved.1 Plaintiffs filed a motion for summary judgment
with respect to counts three and four of their complaint. The
Club filed a cross-motion for summary judgment.
On September 16, 2016, the trial court, citing the business
judgment rule, denied plaintiffs' motion for summary judgment,
granted the Club's motion for summary judgment, and dismissed the
complaint. Plaintiffs appeal.
1
The parties agreed any unresolved claims in count two could be
addressed in consideration of the claims asserted in counts three
and four.
4 A-0922-16T3
II.
Summary judgment must be granted if "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with 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." R. 4:46-
2(c). The court must "consider whether the competent evidential
materials presented, when viewed in the light most favorable to
the non-moving party, are sufficient to permit a rational
factfinder to resolve the alleged disputed issue in favor of the
non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142
N.J. 520, 540 (1995). "[T]he court must accept as true all the
evidence which supports the position of the party defending against
the motion and must accord [that party] the benefit of all
legitimate inferences which can be deduced therefrom[.]" Id. at
535 (citation omitted).
Appellate courts "review the trial court's grant of summary
judgment de novo under the same standard as the trial court."
Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of
Pittsburgh, 224 N.J. 189, 199 (2016). We must hew to that standard
of review.
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III.
Plaintiffs argue that the decisions of the Board should not
be protected from judicial scrutiny by the business judgment rule.
We disagree.
The business judgment rule applies to "common interest
communities" such as the Club. Comm. for a Better Twin Rivers v.
Twin Rivers Homeowners' Ass'n, 192 N.J. 344, 369 (2007). Courts
have "uniformly invoked the business judgment rule in cases
involving homeowners' associations," because "a homeowners'
association's governing body has 'a fiduciary relationship to the
unit owners, comparable to the obligation that a board of directors
of a corporation owes to its stockholders.'" Ibid. (quoting Siller
v. Hartz Mountain Assocs., 93 N.J. 370, 382 (1983)). Similarly,
"decisions made by a condominium association board should be
reviewed by a court using the same business judgment rule which
governs the decisions made by other types of corporate directors."
Walker v. Briarwood Condo Ass'n, 274 N.J. Super. 422, 426 (App.
Div. 1994).
As our Supreme Court has reiterated:
The business judgment rule has its roots in
corporate law as a means of shielding internal
business decisions from second-guessing by the
courts. Under the rule, when business
judgments are made in good faith based on
reasonable business knowledge, the decision
makers are immune from liability from actions
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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)).]
Similarly, "[p]ursuant to the business judgment rule, a
[common-interest] association's rules and regulations will [only]
be invalidated (1) if they are not authorized by statute or by the
bylaws or master deed, or (2) if the association's actions are
'fraudulent, self-dealing or unconscionable.'" Twin Rivers, 192
N.J. at 369.
The rules and regulations challenged here meet the first
prong of the business judgment rule. The Club bylaws state: "The
control and complete management of the Club shall be entrusted to
the duly elected Trustees, who shall make any and all rules and
regulations and enforce compliance therewith, as well as these By-
Laws and the Deed Restrictions." Thus, the Board is empowered by
the Club's bylaws to adopt and amend the Club's rules and
regulations.
Under the second prong, to "'promote and protect the full and
free exercise of the power of management given to the directors,'"
the business judgment rule "'protects a board of directors from
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being questioned or second-guessed on conduct of corporate
affairs, except in instances of fraud, self-dealing, or
unconscionable conduct.'" In re PSE & G S'holder Litig., 173 N.J.
258, 276-77 (2002) (quoting Maul v. Kirkman, 270 N.J. Super. 596,
614 (App. Div. 1994)).
The business judgment rule creates "a rebuttable presumption"
that the actions of a Board are valid. Id. at 277 (quoting Maul,
270 N.J. Super. at 614).
It places an initial burden on the person who
challenges a corporate decision to demonstrate
the decision-maker's "self-dealing or other
disabling factor." If a challenger sustains
that initial burden, then the "presumption of
the rule is rebutted, and the burden of proof
shifts to the defendant or defendants to show
that the transaction was, in fact, fair to the
corporation."
[Ibid. (citations omitted).]
The evidence proffered by plaintiffs was insufficient to
rebut the presumption of validity and carry their initial burden
of showing the Board's actions were fraudulent, self-dealing, or
unconscionable. Plaintiffs did not claim fraud or
unconscionability. Rather, they argued the Board engaged in self-
dealing because it failed to uniformly enforce rules and
restrictions. However, plaintiffs' claims are unsubstantiated and
unrelated to the Board's actions, such as the height limitations
that plaintiffs challenge in this litigation.
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First, plaintiffs asserted Board President John Houseworth
and the Board were aware that fellow Board member Joseph Bruno
violated the Club's rule that "construction in progress must cease
on June 15th" "until after Labor Day," but did nothing about it,
and did not include Bruno as a defendant in the Club's lawsuit to
stop violations of the summer construction ban. However,
Houseworth testified at his deposition he was only aware that
Bruno was "fixing windows." Plaintiffs cited the deposition
testimony of a former Club security guard that while on patrol he
observed and reported the construction activity at Bruno's
property. However, the security guard was not aware whether or
not Bruno had obtained a hardship waiver from the Club that would
have made the reported construction permissible.
Second, plaintiffs alleged that the house of a former Board
member, James Freehan, violated the setback requirement. However,
Houseworth testified only that he had "no recollection as to
whether or not this has ever been investigated." Plaintiffs
proffered no evidence that such a violation had occurred, had been
brought to the Board's attention, or that non-Board members were
investigated for similar building violations.
Third, plaintiffs alleged that Houseworth engaged in self-
dealing because he paid $2200 for the demolition of his house that
was damaged in Superstorm Sandy. Plaintiffs noted the Board had
9 A-0922-16T3
awarded a demolition company a contract to perform the demolitions
at the Club for $4000 per home. However, Houseworth certified
that the reduced rate was the result of bargain struck between
Houseworth and the demolition company that allowed the company to
keep all the possessions and fixtures within the home. Plaintiffs
presented no contrary evidence.
Fourth, plaintiffs claimed self-dealing because Houseworth's
outdoor deck was approved even though the Club's deed restriction
provides that no "structure of any kind shall be erected closer
than 35 feet to the Oceanfront side." However, Houseworth
testified that the building approval process was handled in a
separate committee, not by the Board, and that he was unaware how
the committee defined "structure." Plaintiffs failed to show that
the "structure" rule is being applied differently to members who
are not on the Board. Moreover, a suit challenging Houseworth's
deck was dismissed with prejudice.
Fifth, plaintiffs argued Board members did not pay Club dues.
However, Houseworth testified that he was aware of Board members
not paying dues prior to his becoming Board president in January
2013, but he immediately put a stop to that practice.
As the trial court noted, none of these alleged acts of self-
dealing have any nexus to the rule changes plaintiffs are
challenging. To overcome the business judgment rule, a plaintiff
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must show that "the challenged [] actions" constitute
"impermissible self-dealing." Seidman, 205 N.J. at 177. Here,
there was "no indication that the . . . Board has benefited by
the" challenged rule changes. Owners of the Manor Homes of
Whittingham v. Whittingham Homeowners Ass'n, 367 N.J. Super. 314,
323 (App. Div. 2004) (finding no "self-dealing in the Board's
action"). Allegations of self-dealing in unrelated matters are
insufficient. In re Prudential Ins. Co. Derivative Litig., 282
N.J. Super. 256, 281 (Ch. Div. 1995); see also PSE & G, 173 N.J.
at 278-82 (citing Prudential with approval). In any event,
plaintiffs failed to proffer evidence showing self-dealing even
in those other matters.
IV.
Plaintiffs also argue that the Board and its rules are
incompetent. However, showing Board members or their rules were
incompetent does not show that they were "fraudulent, self-
dealing, or unconscionable," as required by our Supreme Court.
Seidman, 205 N.J. at 175 (quoting Green Party, 164 N.J. at 147);
accord Twin Rivers, 192 N.J. at 369; see PSE & G, 173 N.J. at 276-
77 (requiring "[f]raud, self-dealing or unconscionable conduct");
accord Thanasoulis v. Winston Towers 200 Assoc., 110 N.J. 650, 657
(1988); Siller, 93 N.J. at 382.
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Plaintiffs cite a Chancery Division decision, Papalexiou v.
Tower W. Condo., 167 N.J. Super. 516 (Ch. Div. 1979), which stated
that "[c]ourts will not second-guess the actions of directors
unless it appears that they are the result of fraud, dishonesty
or incompetence." Id. at 527 (citing Sarner v. Sarner, 62 N.J.
Super. 41, 60 (App. Div. 1960)). However, the chancery court
preceded this statement by properly stating that the business
judgment rule
requires the presence of fraud or lack of good
faith in the conduct of a corporation's
internal affairs before the decisions of a
board of directors can be questioned. If the
corporate directors' conduct is authorized, a
showing must be made of fraud, self-dealing
or unconscionable conduct to justify judicial
review. . . . All that is required is that
persons in such positions act reasonably and
in good faith in carrying out their duties.
[Ibid.]
Thus, it appears the chancery court was attempting to state the
business judgment rule, not change it to an incompetence standard.
Moreover, the chancery court mistakenly cited Sarner's
language addressing, not the business judgment rule, but the
requirements for imposition of a receiver: "Short of a showing of
such fraud, dishonesty or incompetency as would disqualify an
officer or director from serving a corporation, the court will not
interpose a receiver between the stockholders and the directorate
12 A-0922-16T3
to conduct the ordinary business affairs of the corporation." Id.
at 60 (citation omitted). Even if incompetence is relevant to
appointing a receiver, it does not constitute fraud, self-dealing,
or unconscionability.2
We have cited that language from Papalexiou and Sarner only
in cases where we did not apply the business judgment rule, and
thus those citations were dicta. Mulligan v. Panther Valley Prop.
Owners Ass'n, 337 N.J. Super. 293, 300, 303 (App. Div. 2001)
(holding that the business judgment rule does not apply to
amendments passed by the membership as a whole); Grato v. Grato,
272 N.J. Super. 140, 150-51 (App. Div. 1994) (not reaching whether
the business judgment rule applies to closely-held corporations).
Our Supreme Court has cited Papalexiou only as stating that
"[f]raud, self-dealing or unconscionable conduct at the very least
should be subject to exposure and relief." Siller, 93 N.J. at 382
(citing Papalexiou, 167 N.J. Super. at 527). We must continue to
follow the Supreme Court's lead and require a showing of fraud,
self-dealing or unconscionable conduct. Ibid.; accord, e.g.,
2
Sarner did not mention the business judgment rule, save to state
that "[c]ourts will not interfere with the internal government of
business corporations where there are honest differences of
opinion concerning management between different factions in
interest." 62 N.J. Super. at 60. See Green Party, 164 N.J. at
147 (citing Sarner, 62 N.J. Super. at 60).
13 A-0922-16T3
Whittingham, 367 N.J. Super. at 322; Walker, 274 N.J. Super. at
426.
Plaintiffs also argue the Board's decisions are arbitrary.
The Court has remarked that "the business judgment rule protects
common interest community residents from arbitrary decision-
making." Twin Rivers, 192 N.J. at 369. However, the rule does
so by invalidating regulations "(1) if they are not authorized by
statute or by the bylaws or master deed, or (2) if the
association's actions are 'fraudulent, self-dealing or
unconscionable.'" Ibid. (citation omitted). "If a challenger
sustains that initial burden," then courts can consider whether
the regulation was "'fair to the corporation.'" PSE & G, 173 N.J.
at 277 (citation omitted).
Our Supreme Court has "reject[ed] plaintiffs' invitation to
limit the scope of the business judgment rule." Seidman, 205 N.J.
at 155. We similarly reject plaintiffs' efforts to evade the
requirement that they show fraud, self-dealing, or unconscionable
conduct. "'The business judgment rule bars judicial inquiry into
the decisions of the board of directors made in good faith'" and
within "'the limits of the by-laws.'" Reilly v. Riviera Towers
Corp., 310 N.J. Super. 265, 270 n.4 (App. Div. 1998) (citation
omitted). The Board's decision "'should not be tampered with by
the judiciary so long as the decision is one within the power
14 A-0922-16T3
delegated to the directors and there is no showing of bad faith.'"
PSE & G, 173 N.J. at 277 (citation omitted). "[B]ad judgment,
without bad faith, does not ordinarily make officers individually
liable." Maul, 270 N.J. Super. at 614.
In any event, plaintiffs failed to show that the Board's
regulations were arbitrary or incompetent. As the trial court
noted, the challenged rule changes do not appear arbitrary, but
rather appear to be "a proper exercise of authority designed to
maintain the property rights of members."
Plaintiffs claim the Board was incompetent because it
promulgated rules and regulations without "expert guidance."
Plaintiff cites Houseworth's statements that "I'm not a
construction expert," and "I'm not well versed as a construction
consultant or surveyor," and that he did not "know anything about
construction" and was "not familiar with" the Toms River building
code." Plaintiffs also cite deposition testimony from Board vice-
president Ken Levine in which he agreed he had not studied
engineering or construction, had no "experience in construction,"
and had not studied "FEMA or flood regulations."
However, the business judgment rule does not require Board
members to be construction experts. The members of the Board are
an elected group of residents tasked with maintaining, through
enforcement and adaptation, a community scheme established by the
15 A-0922-16T3
founders. They are protected if they make their decision "in good
faith based on reasonable business knowledge." Seidman, 205 N.J.
at 175 (quoting Green Party, 164 N.J. at 147).
Moreover, the Club offered a report written by their expert
Gordon Gemma, a licensed professional planner, in support of their
cross-motion for summary judgment. Gemma reviewed the deed
restrictions, bylaws, the certificate of incorporation, and the
Club rules adopted by the Board since Superstorm Sandy. He
concluded that the Club's rules were "justified as promoting and
protecting the health, safety, general welfare and property rights
of the property owners" and "a valid exercise of the purposes of
the" Club.
Houseworth certified that the Board implemented all of
Gemma's recommendations, which included allowing additional
storage space under houses, allowing additional height for
construction in flood zones, and relaxing restrictions on stairs,
stair platforms, and decks. Following Gemma's recommendations,
the Club also retained a professional planner to review all
construction applications. Plaintiffs submitted no contrary
evidence or expert report.
The Board adopted the post-Sandy rules before Gemma was
retained. Nonetheless, his finding that the rules were "justified"
and "valid" rebutted the claim that the rules were incompetent or
16 A-0922-16T3
arbitrary. Moreover, the Board's implementation of Gemma's
recommendations demonstrated good faith.
Plaintiffs argue that Gemma's report should have been
rejected as a net opinion. Courts review "'a trial court's
decision to admit expert testimony'" on summary judgment under
"'an abuse of discretion standard.'" Townsend v. Pierre, 221 N.J.
36, 53 (2015) (citation omitted).
The net opinion rule dictates "an expert's bare opinion that
has no support in factual evidence or similar data is a mere net
opinion which is not admissible and may not be considered."
Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011).
Accordingly, "the net opinion rule 'requires an expert to give the
why and wherefore of his or her opinion, rather than a mere
conclusion.'" State v. Townsend, 186 N.J. 473, 494 (2006)
(citation omitted).
Our Supreme Court recently stated "[t]he net opinion rule is
not a standard of perfection. The rule does not mandate that an
expert organize or support an opinion in a particular manner that
opposing counsel deems preferable." Townsend v. Pierre, 221 N.J.
at 54 (citation omitted). "An expert's conclusions should not be
excluded merely '"because it fails to account for some particular
condition or fact which the adversary considers relevant."'"
Ibid. (citation omitted). "The expert's failure 'to give weight
17 A-0922-16T3
to a factor thought important by an adverse party does not reduce
his testimony to an inadmissible net opinion if he otherwise offers
sufficient reasons which logically support his opinion.'" Ibid.
(citation omitted).
Plaintiffs assert Gemma's report was a net opinion because
he failed to examine minutes of Board meetings, interview Board
members, visit the site, or review the discovery in this
litigation. However, such inquiries were not needed. Gemma's
April 14, 2016 report states that he examined: (a) the restrictions
set forth in the 1954 Deed; (b) the certificate of incorporation,
bylaws, and rules reprinted June 2005; (c) rule changes dated
October 2013; (d) rule changes dated October 2014; (e) rule changes
dated March 2015; and (f) rule changes dated November 2015.
Gemma concluded, "in [his] opinion as a professional
planner," based on "the Club's history of regulations as well as
the process to implement" them, "that the Rules as originally
adopted and which have been imposed since creation of the Club
remain a valid exercise of the purposes of the Association," that
"the Club may continue to adopt and enforce land use and other
restrictions that promote and protect the general welfare and
property rights of the property owners," and that certain rule
amendments should be adopted. To reach those conclusions, it was
unnecessary to review minutes or discovery, interview Board
18 A-0922-16T3
members, or visit the site; review of the governing documents and
the rules and rule changes was sufficient. Thus, Gemma's report
contains the factual basis for his conclusions and
recommendations.
Plaintiffs argue Gemma applied a personal standard. "'A
standard which is personal to the expert is equivalent to a net
opinion.'" Pomerantz Paper, 207 N.J. at 373 (citation omitted).
However, Gemma not only referred to the documents governing the
Club but also reviewed New Jersey case law relevant to the
enforceability of private restrictive covenants in the context of
a community scheme. Gemma also referenced FEMA requirements.
Experts can rely on legal standards pertinent to their profession.
Costantino v. Ventriglia, 324 N.J. Super. 437, 448 (App. Div.
1999); see Davis v. Brickman Landscaping, 219 N.J. 395, 412 (2014)
We cannot say the trial court abused its discretion in
considering the report. Considering the Club's governing
documents and its regulations in light of those standards was an
appropriate topic for a professional planner, and not a "common
knowledge" topic a lay person could address.
V.
Plaintiff also argues that the Board made procedural errors.
However, showing an error, particularly unrelated errors, does not
show the Board's challenged actions were "'fraudulent, self-
19 A-0922-16T3
dealing or unconscionable.'" Seidman, 205 N.J. at 175 (citation
omitted).
First, plaintiffs argue that the Board secretary failed to
print and send the members notice of changes in rules and
regulations "no later than 30 days after the same has been
enacted," as mandated by the Club's bylaws. Plaintiffs cite
Houseworth's deposition where he stated that circulation was
delayed "[b]ecause it's a volunteer job, and some people lack
urgency." However, Houseworth's candid response did not show bad
faith on the part of the Board, especially in light of his
testimony that he was presently addressing the issue. Moreover,
Levine testified that although the rule changes were not initially
mailed, they were "communicated via email blasts and posting on
the website." Plaintiffs did not challenge that the rule changes
were published electronically in a timely fashion.
Second, plaintiffs claimed the Board tried to stifle dissent
through an amendment to the Club's bylaws provided that a Board
member who institutes litigation against the Club is suspended
from the Board during the litigation. However, the amendment to
the bylaws was adopted by the membership of the Club, not the
Board. Plaintiffs have not shown the members' action was
impermissible, let alone that it showed bad faith by the Board.
20 A-0922-16T3
Third, plaintiffs argue that the Board violated the New Jersey
Planned Real Estate Development Full Disclosure Act (PREDFDA),
N.J.S.A. 45:22A-21 to -56, by failing to offer alternative dispute
resolution (ADR). However, the Board adopted a resolution offering
ADR on June 4, 2016.
Finally, plaintiffs note "[t]he PREDFDA statute provides
additional protections." A 1993 amendment to PREDFDA added that:
"The bylaws of the association, which shall initially be recorded
with the master deed shall include . . . [a] requirement that all
meetings of the executive board, except conference or working
sessions at which no binding votes are to be taken, shall be open
to attendance by all association members[.]" N.J.S.A. 45:22A-46,
-46(a). Plaintiffs argue they were not "permitted to attend board
meetings, where the rules were adopted."
However, plaintiffs raised no such claim in their complaint.
Their statement of material facts and Alloco's certification
alleged the Board never permitted members to be present when it
voted on rules concerning construction until the June 4, 2016
meeting, but there is no mention of that claim or PREDFDA in their
oral argument to the trial court on summary judgment. The court's
opinion does not mention that claim.
It is well-settled that New Jersey "appellate courts will
decline to consider questions or issues not properly presented to
21 A-0922-16T3
the trial court when an opportunity for such a presentation is
available unless the questions so raised on appeal go to the
jurisdiction of the trial court or concern matters of great public
interest." Selective Ins. Co. of Am. v. Rothman, 208 N.J. 580,
586 (2012) (quoting Nieder v. Royal Indem. Ins. Co., 62 N.J. 229,
234 (1973)). That is not the case here.
We recognize that we do not have plaintiffs' summary judgment
brief in the trial court. See R. 2:6-1(a)(2). If in that brief,
plaintiffs raised a claim that the Club violated PREDFDA by not
allowing members to attend Board meetings where the challenged
rules were adopted, our affirmance is without prejudice to
plaintiffs seeking an adjudication of that claim in the trial
court.
Plaintiffs' remaining arguments lack sufficient merit to
warrant discussion. R. 2:11-3(e)(1)(E). We need not address the
Club's arguments that plaintiffs are barred from raising several
of their claims because courts have rejected them in other
proceedings.
Affirmed.
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