                                NOT FOR PUBLICATION WITHOUT THE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 NOS. A-0130-18T4
                                                                      A-0271-18T4

MUSLIM UMMAH TRUST,
INC.,

          Plaintiff-Respondent,

v.

IQBAL HUSAEEN, MUBARAK
AHMED, MOHAMMED A.
RAHIM, MUHAMMAD MAIN
UDDIN, and MOHAMMAD
MAHUBUBUR RAHMAN,

     Defendants-Appellants.
_______________________________

MUSLIM UMMAH TRUST,
INC.,

          Plaintiff-Respondent,

v.

IQBAL HUSAEEN, MUBARAK
AHMED, MOHAMMED A.
RAHIM, MUHAMMAD MAIN
UDDIN, and MOHAMMAD
MAHUBUBUR RAHMAN,
     Defendants-Respondents.
_____________________________

MOHAMMED A. HUSSAIN,
MOHAMMED WAHID
CHOWDHURY, MOHAMMED
M. HOSSAIN, ALAMGIR
HOSSAIN, SHAH JALAL,
MOHAMMED CHIDDIQUE,
MOKAROM HOSSAIN, ABDUL
MOTALEB, ASHIKUR RAHMAN,
RAFIQUL MOJUMDER, SUJEL
AHMED, MOHAMMED AL
FAROOK, HM HAQUE, MOHAMED
SALAM, TAREQ RAHMAN, ABU
AZIZ, SYED ASHRAFUL AHAMED,
and MOHAMMAD EKRAM ULLAH,

     Appellants.
________________________________

         Submitted December 9, 2019 – Decided March 16, 2020

         Before Judges Rothstadt and Moynihan.

         On appeal from the Superior Court of New Jersey, Law
         Division, Atlantic County, Docket No. L-1451-17.

         Callaghan Thompson & Thompson, PA, attorneys for
         appellants in A-0130-18 (Edward M. Thompson, on the
         briefs).

         Herman Law Offices, LLC, attorneys for appellants in
         A-0271-18 (Robert D. Herman, on the brief).

         Soliman & Associates, PC, attorneys for respondent
         Muslim Ummah Trust, Inc., in A-0130-18 and A-0271-
         18 (Ahmed M. Soliman, on the briefs).

                                2                               A-0130-18T4
PER CURIAM

      In these two appeals that were calendared back-to-back and consolidated

for the purpose of filing a single opinion, defendants Iqbal Husaeen, Mubarak

Ahmed, Mohammed A. Rahim, Muhammad Main Uddin, and Mohammad

Mahbubur Rahman, 1 appeal from a judge's (the initial judge) August 3, 2017

order denying their motion to vacate temporary restraints and to dismiss the

complaint filed by plaintiff, Muslim Ummah Trust, Inc. (plaintiff or Trust);

Judge Christine Smith's (the trial judge) June 29, 2018 order of judgment,

entered after a bench trial, invalidating resolutions by which defendants sought

to change plaintiff's corporate structure and the manner in which plaintiff's board

of directors are chosen; and the trial judge's August 23, 2018 order denying

defendants' motion for reconsideration and a stay.         Third-party appellants

(intervenors) appeal from the trial judge's October 13, 2017 order denying their

motion to intervene in the action plaintiff filed.2



1
  We note different spellings of some of defendants' names appear throughout
the record. In order to avoid confusion, we use the names set forth in the caption
of defendants' merits brief.
2
  Intervenors' motions for leave to appeal from the trial judge's order and for a
stay were denied by this court and, subsequently, by the Supreme Court.


                                      3                                   A-0130-18T4
                                          I.

        The Trust is a non-profit corporation established in June 2008 under Title

15A of the New Jersey Code. Its Organizational Documents (Documents) 3

provide that one of the Trust's purposes is to "operate on behalf of the

community" a mosque. The Documents originally established seven members

as the Trust's Board of Directors (Board). The Board was designated in the

Documents as the governing body to execute the Trust's powers subject to stated

charitable purposes. The Documents also allowed the Board to "increase said

Board from seven initial members to another number provided that it has the

requisite two[-]thirds of the seven members['] (five) vote[s]"; and to amend the

Documents "by a majority vote of those voting at any meeting of the

membership called for that purpose, provided that the notice of meeting of the

membership shall have stated the nature of the proposed amendment."

"Membership," as defined in the Documents, is the Board. The Documents

required that members "be notified by regular mail of each meeting at least sixty

days prior thereto."




3
    The Documents are often referred to in the record as bylaws.

                                      4                                   A-0130-18T4
      The trial judge perpended copies of letters entered in evidence, 4 each sent

on December 5, 2013 to "Member, Board of Directors" by codefendant Husaeen,

as President of the Trust. The letters were addressed to all five defendants and

Mohammed Emdadul Hoque and Md. Ziaul Islam, and informed them of a

"special meeting" to be held on December 22, 2013. Among the agenda items

listed in the letter was:    "Necessary Amendment regarding organizational

Document (Articles of Association of Muslim Umma [sic] Trust, Inc.)."

According to minutes of the December 22, 2013 meeting, entered into evidence

and reviewed by the judge,5 that agenda item, "first amendment of organization

document[,]" was approved and all five defendants' names and signatures were

"taken underneath."     The trial judge noted the "First Amendment" to the

Documents was signed by six people. One signature—codefendant Rahman's—

was dated January 2, 2014. Hoque's signature was dated December 22, 2013,




4
  The record contains only one letter addressed to Mubarak Ahmed. Although
the trial judge's decision indicates the collective letters "are included in 'D1' in
evidence," she later states, "'D1' in evidence is an eleven[-]page document titled
'Organizational Documents – First Amendment'" and, in her subsequent listing
of the evidence, labels "Defendant #1 Organizational Documents – First
Amendment." The discrepancy does not impact our analysis or decision.
5
  The judge noted the original minutes "are found on an unlined piece of white
paper and stapled into a composition book that is in evidence[.] The original
minutes are written in Bengali." The record contains an English translation of
the minutes.
                                    5                                 A-0130-18T4
like the rest of those on the amended Document. Islam's signature line was

blank.

     The trial judge also found:

           A resolution, dated December 22, 2013[,] and signed
           by five . . . of the seven . . . Board of Directors, is
           attached at the end of the First Amendment. It is not
           incorporated by reference within the First Amendment.
           It reads in relevant part:

                 RESOLUTION

                 Resolution of the Muslim Ummah Trust,
                 Inc., a New Jersey non-profit corporation,
                 establishing a board of governors with
                 powers to appoint bord [sic] of directors
                 and trustees.

                 WHEREAS, the Board of Directors
                 conducted a special meeting for the
                 purpose of discussing a change in the
                 procedure for the appointment of future
                 member[s] to the Board of Directors and
                 board of trustees of the Corporation, and

                 WHEREASE[sic], SAID Board of
                 Directors have agreed that it is in the best
                 interest of the corporation to establish the
                 formation of a Board of Governors who
                 will select such persons they deem to be
                 qualified to fill future vacancies in the
                 corporate Board of Directors and Board of
                 Trustees,

                       . . . [.]

                 RESOLVED:            that the corporate
                 Organization      Documents are hereby
                                    6                                A-0130-18T4
                 amended to establish a Board of Governors
                 which shall hereafter have the sole
                 authority to appoint such persons whom
                 they deem to be qualified to fill the future
                 vacancies of members of the Board of
                 Directors and Broad [sic] of Trustees of the
                 corporation

                 RESOLVED: that the said board of
                 Governors shall consists [sic] of thirty . . .
                 members.

                        . . . [.]

                 RESOLVED: that Board of Governors
                 shall served [sic] indefinite terms of office
                 and vacancies shall be selected by the
                 members of the board of Governors subject
                 to approval of at [sic] majority vote.

                        . . . [.]

                 RESOLVED: that the Board of Governors
                 shall be consider [sic] to be a permanent
                 party of the corporate structure and as such,
                 the Board of Directors shall not have the
                 power or authority to dissolved [sic] or
                 terminate the same.

     The trial judge also reviewed a copy of a letter entered in evidence, 6 sent

on December 13, 2013 to Md. Ziaul Islam by codefendant Husaeen, as President

of the Trust. The letter was addressed to "Member, Board of Directors," and



6
  The record contains only one letter addressed to Mubarak Ahmed, not the one
addressed to Islam.

                                    7                                   A-0130-18T4
informed of a "special meeting" to be held on January 2, 2014. Among the

agenda items listed in the letter was:        "Necessary Amendment regarding

organizational Document (Articles of Association of MuslimUmma [sic] Trust,

Inc.)." According to minutes of the January 2, 2014 meeting, entered into

evidence and reviewed by the judge, that agenda item, "First Amendment

Organization Document," was approved and all five defendants' names and

signatures were, again, "taken underneath."

      A hand-written "Decision," dated January 19, 2014, containing the

purported signatures of all five defendants, Hoque and Islam, was also entered

into evidence at the trial.    The document, in addition to containing an

acknowledgment that all members received "[ten] or [sixty] days['] notice to

amend Article[s] of Association," provided: "Members, Members of the Board

of Directors and members of Trustee Board (members)" decided to add eight

members to the Board and the Trustee Board, increasing the total membership

to fifteen.7




7
  As noted in defendants' merits brief, "Board of Trustees and Board of Directors
is used interchangeably by [the Trust]," an observation borne out by our review
of the Documents and other documentary evidence, although most of the
Documents reference "Board of Directors." Indeed, plaintiff's complaint avers
the Board of Directors is also known as "the Trustees."


                                     8                                  A-0130-18T4
       Also in evidence were the minutes of a July 9, 2017 Board meeting, at

which nine members were present. 8 The trial judge recited a portion of the

minutes in her decision:

             Members discussed the alleged Board Meeting
             resolutions from Jan[uary] 2, 2014. It was noted that
             the resolution was invalid as it was not disclosed to the
             members of the Board. Also noted that the Minutes of
             the Board Meeting from Jan[uary] 19, 2014 doesn't
             reflect that there were any meeting held on Jan[uary] 2,
             2014. The members noted that this resolution is invalid
             and fraudulent. The meeting RESOLVED that the
             Board of Directors resolution from Jan[uary] 2, 2014
             created a Board of Governors were not in effect and
             hereby rescinded completely.

       The minutes from a Governors' meeting on July 19, 2017, also in evidence,

indicate the Governors adopted a resolution reducing the Board from fifteen to

seven members, and appointed seven people, including four of the five

defendants (except Rahman) to the Board.

       On July 14, 2017, plaintiff filed a verified complaint and order to show

cause challenging the January 2, 2014 resolution establishing the Governors,

and its concomitant grant to the Governors of the power to appoint Board

members.     The initial judge granted the order to show cause and issued

temporary restraints on July 19, 2017. Defendants moved to vacate the order

and dismiss plaintiff's complaint, which the initial judge denied on August 3,


8
    These minutes are not part of the appellate record.
                                      9                                  A-0130-18T4
2017. In that order, the initial judge: continued the temporary restraints,

including a prohibition against conducting any meetings and passing any

resolutions, but allowed an annual "Board of Trustee" meeting on August 11,

2017,9 which all members were required to attend; ordered all funds in plaintiff's

corporate bank account be held by defendants' counsel, "who will only use those

funds for the monthly expenses of the Corporation, including payroll for the

Imam and monthly utility bills, after [forty-eight] hours['] notice to [p]laintiff's

counsel . . . who may object to any proposed payment with the [c]ourt";

prohibited the use of the entrusted funds for defendants' counsel fees ; and

ordered other relief not germane to this appeal.        The temporary restraints

reinstated fifteen members, pursuant to the January 19, 2014 resolution, wit h

sole authority over the Trust.

      Defendants contended that during that annual meeting, all fifteen

members of the Board passed a resolution on behalf of the corporation to repay

codefendant Rahim approximately $6500 for a loan he had made to the Trust.

      After a four-day bench trial, Judge Smith invalidated the January 2, 2014

meeting amending the Documents and creating the Governors. In so doing,

contrary to plaintiff's contentions, the judge found that the December 2013 and



9
  In an obvious typographical error, the order specifies the meeting date as
August 11, 2018.
                                  10                                A-0130-18T4
January 2014 meeting notices were sent, and the January 2, 2014 meeting was

held. Nevertheless, the judge determined both notices "insufficient and [non-

]compliant" with the Documents because they failed "to state the nature of the

proposed amendment." The judge further determined that even if the January 2,

2014 resolution was validly adopted, a majority of the Board later invalidated

the resolution during the July 9, 2017 special meeting of the Board. The judge

found the Directors had authority to act at that meeting and a quorum was not

required at that meeting.

      Apart from her trial decision, the trial judge apparently considered

plaintiff's motion to enforce litigant's rights because defendants did not comply

with the August 3, 2017 order. The judge ordered codefendant Rahman to

refund $6500 to the Trust. 10

      Defendants argue the initial judge should have vacated the temporary

restraining order and dismissed plaintiff's complaint because it did not have

authority to file suit. They also contend the trial judge: admitted "improper

evidence" at trial; interfered with the business judgment rule by voiding the



10
    Defendants aver in their merits brief: "Although the original order and
notification called for payment and refund to be made to Mr. Rahman[, t]he
reality was that the actual person who held the loan and who received the funds
was Mr. Rahim. That has now been corrected by the court." The record does
not contain a corrected order or any other document from the judge making that
correction.
                                     11                                 A-0130-18T4
Board's resolutions; erred in denying their motion for reconsideration; and

improperly ordered the return of funds paid to codefendant Rahim. We find no

merit in these arguments and affirm.

      Turning first to the trial judge's decision, we recognize our limited scope

of review following a bench trial. In re Tr. Agreement Dated Dec. 20, 1961,

399 N.J. Super. 237, 253 (App. Div. 2006), aff'd, 194 N.J. 276 (2008).

            A trial judge's [factual] findings are binding on appeal
            as long as those findings are supported by adequate,
            substantial credible evidence. Such deference is
            particularly "appropriate when the evidence is largely
            testimonial and involves questions of credibility."
            This standard . . . does not absolve this court from
            conducting a painstaking review of the record. [This
            court] may not . . . substitute [its] view of the evidence
            if [it] determine[s] that the trial judge's findings are
            supported by the [record].

            [Ibid. (citations omitted) (quoting In re Return of
            Weapons to J.W.D., 149 N.J. 108, 117 (1997)).]

We, nevertheless, review de novo the trial court's legal conclusions.         Kas

Oriental Rugs, Inc. v. Ellman, 394 N.J. Super. 278, 285 (App. Div. 2007).

      Defendants claim the trial judge based her decision on the insufficiency

and noncompliance of the notices for the meetings at which the invalidated

measures creating the Governors were adopted, a ground not advanced by

plaintiff in its pleadings or subsequent arguments through the trial proceedings,

during which plaintiff advanced only that the notices were not sent and the

                                       12                                A-0130-18T4
meetings were never held. Defendants complain that they did not have an

opportunity to present evidence to counter the trial judge's conclusion.

        The record belies defendants' argument.          Paragraph 12 of plaintiff's

complaint alleges written notification was a prerequisite to a valid meeting under

Articles IV and IX of the Documents. Paragraph 14 provided "that without

written notification or any meeting held," defendants "signed an invalid

'[r]esolution' . . . establishing [Governors]." In the next paragraph , plaintiff

claimed, "[t]he alleged January 2, 2014 '[r]esolution' . . . is invalid because it

was . . . not done as part of any notified meeting, as required by the

[Documents.]" The first count of the complaint further prayed for "the equitable

relief to which [p]laintiff is entitled, including" the nullification of the resolution

and dissolution of the Governors.

        In determining whether an issue was raised so as to conform to Rule 4:5-

2,11 we held "all facts, reasonable inferences and implications are to be



11
     Rule 4:5-2 provides, in part:

              Except as may be more specifically provided by these
              rules in respect of specific actions, a pleading which
              sets forth a claim for relief . . . shall contain a statement
              of the facts on which the claim is based, showing that
              the pleader is entitled to relief, and a demand for
              judgment for the relief to which the pleader claims
              entitlement. Relief in the alternative or of several
              different types may be demanded.
                                         13                                   A-0130-18T4
considered most strongly in favor of the pleader." Spring Motors Distribs., Inc.

v. Ford Motor Co., 191 N.J. Super. 22, 29-30 (App. Div. 1983), rev'd in part on

other grounds, 98 N.J. 555 (1985). "A complaint . . . is not required to spell out

the legal theory upon which it is based." Farese v. McGarry, 237 N.J. Super.

385, 390 (App. Div. 1989). It "must 'fairly apprise the adverse party of the

claims and issues to be raised at trial.'" Teilhaber v. Greene, 320 N.J. Super.

453, 464 (App. Div. 1999) (quoting Spring Motors Distribs., Inc., 191 N.J. at

29).

       Rule 4:9-2 provides:

             When issues not raised by the pleadings and pretrial
             order are tried by consent or without the objection of
             the parties, they shall be treated in all respects as if they
             had been raised in the pleadings and pretrial order[.] If
             evidence is objected to at the trial on the ground that it
             is not within the issues made by the pleadings and
             pretrial order, the court may allow the pleadings and
             pretrial order to be amended and shall do so freely when
             the presentation of the merits of the action will be
             thereby subserved and the objecting party fails to
             satisfy the court that the admission of such evidence
             would be prejudicial in maintaining the action or
             defense upon the merits.

       Plaintiff's complaint fairly apprised defendants that its claim was based,

in part, on the validity of the notices under the terms of the Documents. Indeed,

at trial, defendants' counsel sua sponte told the judge the defense had no

objection to the Documents being placed into evidence and the judge reviewing

                                        14                                   A-0130-18T4
same; and had no objection when plaintiff's counsel formally moved the

Documents. And, as the trial judge noted in rejecting defendants' argument

made in connection with its reconsideration motion, "defendant[s] argued

emphatically that the meetings did in fact take place and as evidence that they

did take place they provided the [c]ourt with proof of notice, and it is that notice

that the [c]ourt found to be deficient[.]"

      Defendants argued in their trial closing and in their reconsideration

motion, and now reprise on appeal, that the judge failed to apply the business

judgement rule. Defendants seek to apply the holding in Seidman v. Clifton

Sav. Bank, S.L.A.: "Under the business judgment rule, there is a rebuttable

presumption that good faith decisions based on reasonable business knowledge

by a board of directors are not actionable by those who have an interest in the

business entity." 205 N.J. 150, 166 (2011). As such, defendant argues the action

establishing the Governors should be free from attack because, under Seidman,

the "conduct of corporate affairs" cannot be "questioned or second-guessed"

"except in instances of fraud, self-dealing, or unconscionable conduct[.]" Ibid.

      Defendants' argument disregards that part of the Court's holding that

            a decision made by a board of directors pertaining to
            the manner in which corporate affairs are to be
            conducted should not be tampered with by the judiciary
            so long as the decision is one within the power
            delegated to the directors and there is no showing of
            bad faith.
                                      15                                   A-0130-18T4
              [In re PSE & G S'holder Litig., 173 N.J. 258, 277 (2002)
              (emphasis added) (quoting Exadaktilos v. Cinnaminson
              Realty Co., 167 N.J. Super. 141, 151 (Law Div. 1979),
              aff'd o.b., 173 N.J. Super. 559 (App. Div. 1980)).]

The first question to be answered in analyzing the applicability of the business

judgement rule is "whether the actions were authorized by statute or charter[.]"

Green Party v. Hartz Mountain Indus. Inc., 164 N.J. 127, 147 (2000); see Siller

v. Hartz Mountain Assocs., 93 N.J. 370, 382 (1983).            As we previously

recognized:

              The business judgment rule bars judicial inquiry into
              the decisions of the board of directors made in good
              faith. However[,] that rule applies where the board is
              authorized to make the decision.        The business
              judgment rule does not apply to decisions that are
              beyond the limits of the by[]laws.

              [Reilly v. Riviera Towers Corp., 310 N.J. Super. 265,
              270 n.4 (App. Div. 1998) (citation omitted) (quoting
              Sulcov v. 2100 Linwood Owners, 303 N.J. Super. 13,
              31 (App. Div. 1997).]

      The trial judge was, therefore, required to determine if the actions

establishing the Governors was authorized by the Documents in order to address

defendants' argument.       That determination necessitated a review of the

Documents.      Defendants' failure to comply with the notice requirements

rendered the business judgment rule inapplicable because the actions taken on

December 22, 2013 and January 2, 2014, to change plaintiff's corporate structure

                                      16                                 A-0130-18T4
and the manner in which plaintiff's board of directors are chosen were

unauthorized per the notice requirements.

        That failure likewise rendered inapplicable N.J.S.A.                15A:3-2.

Defendants argue the corporate acts establishing the Governors and its powers

were valid under that statute even if the Trust was without the power to act , and

the trial judge did not allow them to make this argument. Defendants cite to the

first sentence of the statute: "No act of a corporation . . . shall be invalid because

the corporation was without capacity or power to do that act[.]" N.J.S.A. 15A:3-

2.

      Defendants, however, overlook the second part of that sentence and

subsection (a): "but the lack of capacity or power may be asserted . . . [i]n a

proceeding by a member or trustee against the corporation to enjoin the doing

of any act[.]" N.J.S.A. 15A:3-2(a). Plaintiff did just that by bringing suit to

enjoin the contested actions taken at the December and January meetings.

      Our review of the record leaves us convinced Judge Smith's factual

findings are supported by the record evidence and are entitled to our deference;

and that her legal conclusions are sound. As stated, the judge recognized the

"precise" language of Article XI of the Documents—wording that was

unchanged by any amendment—that required the notice of meeting to state "the

nature of the proposed amendment." We will not disturb the court's finding that

                                       17                                    A-0130-18T4
the notices failed to meet the notice requirement, and her conclusion: "If notice,

therefore, is insufficient and is not compliant with the requirements set forth in

[the Documents], no amendment generated therefrom can survive." Nor will we

overturn the judge's alternative finding that, even if the December and January

meeting notices were compliant, the measures creating the Governors "could not

survive the [Board's] July 9, 2017 decision" rescinding those measures.

      We affirm that portion of the decision substantially for the reasons set

forth by Judge Smith in her well-reasoned written opinion. We particularly

agree with the judge's assessment that the Documents, or any subsequent version

thereof, do not contain a quorum requirement, rejecting the mention of quorum

requirements in the minutes of an August 22, 2014 annual meeting. As such, a

majority of the entire Board constituted a quorum. See N.J.S.A. 15A:6-7(a) ("A

majority of the entire board, or of any committee thereof, shall constitute a

quorum for the transaction of business, unless the certificate of incorporation or

the bylaws shall provide that a greater or lesser number constitutes a

quorum[.]").    The nine members present at the July meeting met that

requirement.

      We determine the balance of defendants' arguments regarding trial errors

to be without sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E). We

add only the following brief comments.

                                     18                                   A-0130-18T4
      Inasmuch as the meetings were nullities because of the notice failure,

defendants' contentions that Board members had other notice of the meetings,

and that the vote was not impacted by that failure, are without merit. The actions

taken were invalid under the Documents.

      The admission of the weather report and trip ticket in evidence, over the

objection of defendants' counsel, was harmless. The report and trip ticket were

proffered by plaintiff to prove the January meeting did not take place because

of the snowy conditions at the meeting location in Atlantic City, and one

member who claimed to be at the meeting was working in Philadelphia. The

judge rejected plaintiff's argument, and those proofs, finding that the meeting

was held. The admitted evidence had no impact on the trial judge's ultimate

decision and did not at all prejudice defendants.

      Judge Smith's trial decision, based on evidence adduced during a full trial,

rendered moot the temporary restraints entered by the initial judge. The trial

judge's decision restored authority over the Trust to plaintiff. Any temporary

restraints, imposed during the pendency of the trial, were subsumed by that

decision. "An issue is [considered] 'moot' when the decision sought in [the]

matter, [if] rendered, [would] have no practical effect on the existing

controversy." New Gold Equities Corp. v. Jaffe Spindler Co., 453 N.J. Super.

358, 385 (App. Div. 2018) (quoting N.J. Div. of Youth & Family Servs. v. A.P.,

                                     19                                  A-0130-18T4
408 N.J. Super. 252, 261 (App. Div. 2009)). Thus, defendants' contention that

the failure to vacate the temporary restraints is moot.

      Defendants' argument that the initial judge erred when he failed to dismiss

plaintiff's complaint because a quorum was not present when the decision to file

suit was made, does not warrant discussion. R. 2:11-3(e)(1)(E). As evidenced

by the trial record, and the trial judge's decision, plaintiff had authority to file

suit against defendants and the decision to do so was properly made at a duly-

constituted meeting. We further note, contrary to defendants' suggestion, the

initial judge did not find that a valid quorum requirement existed but rather

determined that it was too early in the process to determine whether plaintiff had

authority to file the current lawsuit.      He subsequently created a quorum

requirement in his August 17, 2017 order granting plaintiff's request for a

preliminary injunction only for the pendency of this litigation.

      Our decision effectively rejects defendants' contention that the trial judge

erred in denying their motion for reconsideration. "Motions for reconsideration

are governed by Rule 4:49-2, which provides that the decision to grant or deny

a motion for reconsideration rests within the sound discretion of the trial court."

Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382

(App. Div. 2015). Thus, we review a trial judge's denial of a motion for

reconsideration for an abuse of discretion and will disturb that decision if the

                                      20                                   A-0130-18T4
court's original ruling was palpably incorrect or irrational or failed to appreciate

the significance of probative, competent evidence. Ibid. As we have decided,

Judge Smith's ruling, based on competent, sufficient evidence in the record, was

rational and correct.

      Finally, defendants contend the trial judge erred in granting plaintiff's

motion to enforce litigant's rights, compelling Rahim to repay $6500 to the Trust

because the "order to return was against the weight of the evidence." Defendants

did not list the April 13, 2018 order granting that relief in their notice of appeal

or civil case information statement. We have made clear "it is only the judgment

or orders designated in the notice of appeal which are subject to the appeal

process and review[.]" 1266 Apartment Corp. v. New Horizon Deli, Inc., 368

N.J. Super. 456, 459 (App. Div. 2004). We refuse to consider an order if the

appellant "did not indicate in his notice of appeal or case information statement

that he was appealing from the order[.]" Fusco v. Bd. of Educ. of Newark, 349

N.J. Super. 455, 460-61 n.1 (App. Div. 2002). Furthermore, defendants have

not supplied a transcript of the trial judge's oral motion decision, referenced in

the April order. The only transcript related to that motion is one from August

23, 2018, mentioning that the court denied defendants' motion for

reconsideration of the April 13, 2018 order and setting forth the trial judge's




                                      21                                   A-0130-18T4
reasoning on plaintiff's second motion to enforce litigant's rights. 12 Defendants

have not appealed from either the denial of the mentioned reconsideration

motion or the judge's grant of the second motion to enforce litigant's rights,

requiring that $6500 be paid to the Trust within ninety days and denying

plaintiff's request for sanctions against Rahim. 13

                                          II.

        Intervenors, eighteen congregants of the mosque, claim the trial judge

erred when she denied their motion to intervene under Rule 4:33-1. Intervenors

advance the same arguments made to the trial judge, aptly synopsized by Judge

Smith in her written decision:

              [Intervenors] seek to intervene as [of] right in the action
              claiming they are members that hold a cognizable
              property interest – their membership in the [Trust], to
              "which they have provided both money, sweat, and
              energy, and whose walls are enshrined with their
              effort,[14]" and that interest relates to the property
              which is the subject of the action[,] and the disposition
              of the action may impair or impede their ability to
              protect that interest.



12
   That transcript also contains the trial judge's oral decision denying defendants'
reconsideration motion.
13
     Defendants have not provided either of the trial judge's last orders.
14
     The judge quoted intervenors' brief submitted in support of the motion.


                                        22                                   A-0130-18T4
In their merits brief, intervenors elucidated that they "should have been

permitted to intervene in the litigation below" because their interest at question

"is the right to participate in the control and direction of their religious

organization[.] It is not one which is collateral; rather, it is direct and flows

from their status as a member."15

      The trial judge, despite finding that intervenors "have an interest in this

litigation," denied their motion concluding, "they have not shown that there is

an inability to protect that interest without intervention and that the current

parties do not provide adequate representation of the interest." The judge also

concluded intervenors "view[ed] the word 'membership' much too broadly,"

because "membership," was limited to the Board.

      Although our review of the trial judge's decision on a motion to intervene

under Rule 4:33-1 is de novo, N.J. Dep’t of Envtl. Prot. v. Exxon Mobil Corp.,

453 N.J. Super. 272, 285 (App. Div.), certif. denied, 233 N.J. 378 (2018), we

affirm Judge Smith's decision substantially for the reasons set forth in her cogent

written decision.




15
   Intervenors did not claim permissive intervention under Rule 4:33-2 before
the Law Division or on appeal before this court. Therefore, we view intervenors'
application to intervene solely under Rule 4:33-1, intervention as of right. See
State v. J.M., 182 N.J. 402, 410 (2005) (issue not raised in trial court, even
constitutional one, ordinarily not considered on appeal).
                                      23                                 A-0130-18T4
      We have recognized the four criteria set forth in Rule 4:33-1 for

determining a motion to intervene as of right:


             The applicant must (1) claim "an interest relating to the
             property or transaction which is the subject of the
             transaction," (2) show [that the movant] is "so situated
             that the disposition of the action may as a practical
             matter impair or impede his ability to protect that
             interest," (3) demonstrate that the "[movant's] interest"
             is not "adequately represented by existing parties," and
             (4) make a "timely" application to intervene.

             [Meehan v. K.D. Partners, L.P., 317 N.J. Super. 563,
             568 (App. Div. 1998) (quoting Chesterbrooke Ltd.
             P’ship v. Planning Bd. of Twp. of Chester, 237 N.J.
             Super. 118, 124 (App. Div. 1989)).]

      "As the rule is not discretionary, a court must approve an application

for intervention as of right if the four criteria are satisfied." Exxon Mobil Corp.,

453 N.J. Super. at 286 (quoting Meehan, 317 N.J. Super. at 568). Further, "Rule

4:33-1 is construed 'liberally.'" Allstate N.J. Ins. Co. v. Neurology Pain Assocs.,

418 N.J. Super. 246, 254 (App. Div. 2011) (quoting Meehan, 317 N.J. Super. at

568). "Consistent with this liberal construction, our courts take a practical

approach in determining whether a moving party has a cognizable interest in

litigation that it is entitled to protect by intervention." Id. at 254-55.

      Although the trial judge, in paraphrasing the four criteria, did not

articulate Rule 4:33-1's exact language, contrary to intervenors' contention, it is

clear she correctly considered the proper standards. We essentially agree with

                                       24                                    A-0130-18T4
intervenors' observations in their merits brief that the underlying litigation

between plaintiff and defendants "was to establish the process, procedures, and

who [was] permitted to vote for the [Trust]/Mosque Board of Directors." They

further acknowledge that the litigation was the result of "an intra-organizational

power struggle" with "two distinct groups[,]" one group, plaintiff, comprised "of

the current [Board] who wishe[d] to maintain control of the organization . . .

[and d]efendants, on the other hand, [who] wish[ed] to utilize a thirty-member

[Governors] committee to pick and elect [d]irectors."

      The trial judge correctly recognized that intervenors were not members

under the Documents.      Instead, they sought to interject themselves in the

governing process although they had no rights under the corporate structure set

forth in the Documents.

      "Non-profit corporate associations . . . are given the utmost latitude in

their regulation and management of intracorporate affairs."          Loigman v.

Trombadore, 228 N.J. Super. 437, 450 (App. Div. 1988).            "[A] voluntary

association may, without direction or interference by the courts, draw up for its

government and adopt rules, regulations and by[]laws which will be controlling

as to all questions of . . . doctrine or internal policy." Davidovich v. Isr. Ice

Skating Fed'n, 446 N.J. Super. 127, 154 (App. Div. 2016) (second alteration in

original) (quoting Loigman, 228 N.J. Super. at 450). A non-profit organization's

                                     25                                  A-0130-18T4
"private law generally is binding on those who wish to remain members."

Higgins v. Am. Soc’y of Clinical Pathologists, 51 N.J. 191, 202 (1968).

      Further, nonprofit corporations are governed by the provisions of N.J.S.A.

15A:1-1 to 16-2. See Newfield Fire Co. No. 1 v. Borough of Newfield, 439 N.J.

Super. 202, 212 (App. Div. 2015). The statutory scheme requires a nonprofit

corporation to set forth in the certificate of incorporation "[t]he name of the

corporation" and "[t]he purpose or purposes for which the corporation is

organized." N.J.S.A. 15A:2-8(a)(1) and (2). In addition, the method for electing

members of the board of directors, or trustees, shall be set forth in either the

certificate of incorporation or the corporation's bylaws, N.J.S.A 15A:2 -

8(a)(6),16; which are to "be adopted by the board at its organization meeting,"

N.J.S.A. 15A:2-10(a). "Thereafter, the board shall have the power to make, alter

and repeal bylaws unless that power is reserved to the members in the certificate

of incorporation or the bylaws[.]" N.J.S.A. 15A:2-10(a).

      The ultimate holding by the trial judge restored control of the Trust to

plaintiff, and the Board—the "membership" specified in the Documents—has




16
   The report of the Nonprofit Law Revision Committee explains, however,
that N.J.S.A. 15A:2-8(a)(3) and (5) "make[s] clear that nonprofit corporations
need not have members."


                                     26                                 A-0130-18T4
control of the Trust as the governing body. Despite the clear definition of

"membership" in the Documents, and the powers conferred therein to the Board

to "increase said Board from seven initial members to another number provided

that it has the requisite two[-]thirds of the seven members['] (five) vote[s]," and

to amend the Documents "by a majority vote of those voting at any meeting of

the membership called for that purpose, provided that the notice of meeting of

the membership shall have stated the nature of the proposed amendment,"

intervenors claim their general membership entitles them to a staked claim in

the process.

      That claim is contrary to the clear language of the Documents. Intervenors

attempted to interject themselves in the underlying litigation even though t hey

had no interest in its subject matter. And, as the trial judge found, plaintiff and

defendant adequately represented the competing interests of the factions —

which did have a recognized interest under the Documents—vying for control

of the Trust. Intervenors did not satisfy the four criteria set forth in Rule 4:33-

1. As such, the trial judge properly denied their motion to intervene.

      We determine the balance of intervenors' arguments, including their

assertions that: (1) "there should be an appeal as of right where the interest in

question is the subject matter of the litigation below; the subject matter is

equitable in nature; and where a proposed intervenor’s motion to intervene

                                      27                                  A-0130-18T4
pursuant to R[ule] 4:33-1 is denied"; (2) "the trial court did not provide the

evidentiary standard it applied when it determined [intervenors] failed their

required proofs"; and (3) their reliance on an inapposite case, Hardwick v. First

Baptist Church, 217 N.J. Super. 85, 92 (App. Div. 1987), to be without sufficient

merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add only

that the first argument runs contrary to our holding in Huny & BH Assocs. Inc.

v. Silberberg, 447 N.J. Super. 606, 610 (App. Div. 2016) that "treat[ing] the

denial of a motion to intervene as of right as final and appealable as of right"

was not consistent with New Jersey practice and underlying policies, reasoning

that the "Rules are intended to limit interlocutory and fragmentary appeals that

would delay the disposition of cases and clog our courts," id. at 609. And, unlike

the plaintiffs in Hardwick who were granted membership status only to have

their membership status removed in a discriminatory application of the bylaws,

217 N.J. Super. at 87-88, intervenors were never granted membership status.


      Affirmed.




                                     28                                  A-0130-18T4
