                 NOT FOR PUBLICATION WITHOUT THE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

                                       2                                A-0922-16T3
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.




                                        5                                 A-0922-16T3
                                    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

                                      6                               A-0922-16T3
           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

                                          7                                A-0922-16T3
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.

                                       8                                  A-0922-16T3
       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

                                      10                             A-0922-16T3
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.



                                      11                                 A-0922-16T3
     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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