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Hungerford v. Greate Bay Casino Corp.

Decided: November 3, 1986.

HENRY B. HUNGERFORD, PLAINTIFF-APPELLANT,
v.
GREATE BAY CASINO CORPORATION, DEFENDANT-RESPONDENT



On appeal from Superior Court of New Jersey, Law Division, Atlantic County.

Michels and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Plaintiff, Henry B. Hungerford, is the owner of 600 shares of the common stock of defendant, Greate Bay Casino Corporation (Greate Bay). The management of Greate Bay proposed a buy-out of its stockholders, described by its financial consultant as a "going private transaction," at a price of $17 per share. By letter dated June 12, 1985, plaintiff advised Greate Bay that he found its buy-out offer unacceptable. The letter contained an analysis prepared by plaintiff to demonstrate that the actual fair market value of his stock was approximately $45 per share.

On September 11, 1985, plaintiff filed a pro se complaint seeking judgment against Greate Bay in the amount of $45 per share for his stock. The first paragraph alleged that $17 per share paid by Greate Bay "understated" the value of its stock and that "I intend to prove the correct cash value is $45/share

for Class 'A' Common Stock." Paragraph 2 set forth in detail the analysis prepared by plaintiff to demonstrate that the actual fair market value of the Greate Bay stock was $45 per share.

On December 17, 1985, Greate Bay's counsel mailed interrogatories and requests for admissions to plaintiff. Request number 8 sought an admission by plaintiff that "[t]he offer of $17.00 to the public shareholders of the company was fair and reasonable." Plaintiff acknowledged receipt of these documents by a note dated December 19, 1985, which indicated that he would try to furnish Greate Bay's counsel with answers "in the next couple of days." The note also stated that "[m]y position with facts was sent to your office in an earlier letter," obviously referring to the June 12th letter.

Plaintiff did not answer the requests for admissions within 30 days. On January 22, 1986, Greate Bay filed a motion for summary judgment. The sole basis for the motion was that the requests for admissions, which included the assertion that the offer to Greate Bay's shareholders of $17 per share was fair and reasonable, were deemed to have been admitted pursuant to R. 4:22-1 due to plaintiff's failure to answer within 30 days.

On or about January 29, 1986, plaintiff sent Greate Bay's counsel his answers to the requests for admissions, which included a denial of request number 8. In these answers plaintiff stated: "I request the court accept this reply in its late form."

On February 11, 1986, plaintiff filed a response to the motion for summary judgment which stated, among other things: "[a]s I stated in the original complaint, the $17/share is not a fair and reasonable value." Plaintiff also pleaded for an opportunity to have his case decided on its merits.

Greate Bay was notified by a letter from a law clerk, dated February 28, 1986, that its motion had been granted:

[The trial judge] has reviewed the papers in this matter and has ordered ...


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