July 29, 2011
CHARLES J. RAVERTA, PLAINTIFF-APPELLANT,
LAKE MOHAWK GOLF CLUB, THE BOARD OF GOVERNORS OF LAKE MOHAWK GOLF CLUB, CHARLES A. ROBERTS, INDIVIDUALLY, ALFRED ARENA, INDIVIDUALLY, PETER VENTRICELLI, INDIVIDUALLY, WILLIAM STEINHARDT, INDIVIDUALLY, JAMES APOSTOLICO, INDIVIDUALLY, DAVID ENDAHL, INDIVIDUALLY, TERENCE NOVAK, INDIVIDUALLY, AND PHIL MARCELLUS III, INDIVIDUALLY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Special Civil Part, Sussex County, Docket No. DC-003370-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued: January 10, 2011
Before Judges Grall and C.L. Miniman.
Plaintiff Charles J. Raverta appeals the dismissal of his complaint against defendants Lake Mohawk Golf Club (the Club), the Board of Governors of Lake Mohawk Golf Club (the Board), Charles A. Roberts, Alfred Arena, Peter Ventricelli, William Steinhardt, James Apostolico, David Endahl, Terence Novak, and Phil Marcellus III (the individual defendants) pursuant to R. 4:6-2(e) for failure to state a claim upon which relief can be granted. We now reverse and remand for further proceedings consistent with this opinion.
In his amended complaint, which was filed in October 2009,*fn1
plaintiff asserted seven causes of action, including consumer fraud, conspiracy, breach of contract, prima facie tort, wrongful interference with contract, failure to care for collateral/directors' liability, and trover/conversion. Plaintiff sought compensatory damages, treble damages, punitive damages, rescission, attorneys' fees, lawful interest, and costs of suit. The allegations of each count follow.
In the First Count, plaintiff alleged that in September 1999 he purchased Participation Certificate A1137 for $7500 based on mail and newspaper advertisements and was told that said sum was redeemable for that amount when he was no longer a member of the Club. He also paid a nonrefundable initiation fee of $7500. He did not receive the participation certificate until February 19, 2000. At no time until he received the Club's By-Laws years later did anyone ever explain to him that participation certificates were not immediately redeemable upon termination of membership. It was only upon receiving the ByLaws that plaintiff learned that he would not receive a refund until a new member purchased his certificate and that there was a redemption list of former members awaiting refunds. He alleged that he became a member of the Board in part because "numerous former members" advised him that they had requested a copy of the redemption list to assess their status and were denied a copy of same.
Plaintiff further alleged that defendants rescinded his participation certificate "on a representation that [he] acted contrary to the By-Laws of the [Club] which are openly arbitrary and poorly defined." He asserted that "[t]he [defendants'] acts against [him] were clearly arbitrary and unreasonable and would shock the con[science] of a reasonable person." He alleged that defendants refused his repeated demands for a copy of the redemption list or the return of his money. He alleged financial and social harm and sought damages pursuant to the Consumer Fraud Act (CFA), N.J.S.A. 56:8-1 to -195.
In the Second Count, plaintiff asserted that he was elected to the Board "to open a dialog between the membership and the behind[-]the[-]scenes actions of the Board" and that he had "discovered that a certain member of [the Club] had entered the alcohol serving section of the clubhouse after hours of operation and consumed alcoholic beverages on more than one occasion" and "disbursed" these beverages to others. Plaintiff claimed that he had sought action by the Board and subsequently discovered that the offending party and other members of the Club and the Board were "involved in a business enterprise" with the Club "as a good customer." He alleged that "[i]n an attempt to silence [him] from informing the general membership of this questionable behavior," the Board "banned" his membership. Further, he asserted that the individual defendants "entered into a confederation with a common design to perpetrate a tort, to [wit,] withhold[ing] from authorities and the membership information regarding the illegal acts of a certain member of [the Club]."
In the Third Count, plaintiff asserted that defendants had breached his contract, been unjustly enriched, and "violated the implied covenants of good faith and fair dealing by refusing to compensate for the [tortious] taking of [his] property without compensation."
In the Fourth Count, plaintiff alleged that the foregoing conduct of defendants was negligent and that defendants' "open refusal to protect the interests and asset values of the general membership, and open wrongful withholding of [his] property," caused financial and social damage.
Under the Fifth Count, plaintiff alleged that the individual defendants, in an attempt to silence him about what amounted to a felony by another Club member, who was associated with them in a business with the Club, expelled him from the Club because they could not remove him from the Board. He alleged that the individual defendants "unjustly interfereed with his membership" and were liable to him in tort and that his expulsion to silence him "clearly offends public policy."
In the Sixth Count, plaintiff alleged that defendants "took no measures to protect the participation funds paid by [him] by placing said funds in a trust account, but foolishly spent on pet projects of certain members of the [Board]." He further alleged bad faith and defendants' failure to "defend against acts committed by the membership which would shock the consci[ence] of the membership as well as the general public," which caused a "severe decline in the market value of [his] pledged collateral."
In the Seventh Count, plaintiff alleged that, by refusing to reimburse him or give him access to Club facilities, defendants were "using [his] rights as constituted by possession of the [p]articipation [c]ertificate to generate additional income."
Defendants filed a motion pursuant to Rule 4:6-2(e) supported by a certification of Eugene Savron, the Club's general manager. He attached copies of (1) plaintiff's membership application, (2) plaintiff's resume, (3) plaintiff's sponsors' letters of recommendation, (4) the Club's By-Laws, (5) plaintiff's participation certificate, (6) the Club's Rules, Regulations and Policies, (7) the Club's 1998 Dues and Fees Schedule, and (8) an undated letter from plaintiff apologizing for his participation a loud encounter with a member.*fn2
In defendants' notice of motion, they referred only to Rules 4:6-2(e) and 1:6-2. Except for the certifications of defendants' counsel and Savron, we have been provided with no other documents that may have been presented to the motion judge. In particular, we have no opposing certification from plaintiff and no statements of material facts from defendants or plaintiff. See Rule 4:46-2(a) and (b).
The parties presented oral argument before the motion judge on December 23, 2009. Thereafter, the judge granted defendants' motion by written order, filed December 24, 2009, accompanied by a written statement of reasons making fact-findings based on the documents presented to him and dismissing plaintiff's amended complaint in its entirety. The judge did not discuss the application of Rule 4:46 to the motion before him and did not review the law applicable to the disposition of summary judgment motions. This appeal followed.
Neither party has briefed the application of Rule 4:46, the governing rule required by Rule 4:6-2 for motions to dismiss for failure to state a claim that are supported by matters outside the pleadings, nor have they briefed the law applicable to the disposition of such motions. Instead, they cite Printing Mart-Morristown v. Sharp Electronics Corp., 116 N.J. 739, 772 (1989), for the standard governing motions to dismiss under Rule 4:6-2. Because Rule 4:6-2 requires motions under subsection (e) that submit evidence beyond the pleadings to be "disposed of as provided by [Rule] 4:46," the judge should have analyzed the motion under the latter rule.
R. 4:46-2(c) provides as follows: The judgment or order sought shall be rendered forthwith 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.
Brill v. Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), outlined the standard for deciding a summary-judgment motion:
[A] determination whether there exists a "genuine issue" of material fact that precludes summary judgment requires the motion judge to 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 fact[-]finder to resolve the alleged disputed issue in favor of the non-moving party.
Therefore, the motion must be considered on the basis that the non-moving parties' assertions of fact are true, and the court must "grant all the favorable inferences to the non-movant." Id. at 536. This was not done.
Additionally, Rule 4:6-2 provides that upon filing a motion under subsection (e) presenting matters outside the pleading, "all parties shall be given reasonable opportunity to present all material pertinent to such a motion." Plaintiff really had no notice that the motion he was opposing was anything more than a motion subject to the Printing Mart standard where the Court cautioned that Rule 4:6-2 motions to dismiss "should be granted in only the rarest of instances." Printing Mart, supra, 116 N.J. at 772.
The record before us does not disclose whether defendants complied with Rule 4:46 in presenting their motion to the judge because the motion briefs are not to be included in the record on appeal. We infer that they did not do so because the motion was decided under the Printing Mart standard rather than the Brill standard. In any event, we do not have before us the statement of material facts required by Rule 4:46-2(a), which alone may be a ground for denying a summary judgment motion. See R. 4:46-2(a) ("a motion for summary judgment may be denied without prejudice for failure to file the required statement of material facts.").
We do not reach the issue of whether any of the causes of action asserted in the complaint state a claim for relief without considering the Savron documents because the judge considered them and made fact-findings based on them in deciding the motion, but applied the wrong standard. Accordingly, the order under review is reversed. Defendants may pursue dismissal of the complaint either under Rule 4:6-2(e) without submitting any matters outside the pleading or they may seek a summary judgment and comply with all of the requirements of Rule 4:46 and the cases construing it.
Reversed and remanded for further proceedings. We do not retain jurisdiction.