                                NOT FOR PUBLICATION WITHOUT THE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 NO. A-3486-18T3

YAGNESH PATEL,

          Plaintiff-Appellant,

v.

THE HINDU COMMUNITY
CENTER, THE HINDU COMMUNITY
CENTER BOARD OF TRUSTEES,
VINAYAK RAVAL, NITIN DESAI,
SURESH PATEL, and PARTHIV
RAVAL,

     Defendants-Respondents.
________________________________

                   Submitted June 1, 2020 – Decided July 27, 2020

                   Before Judges Sumners and Natali.

                   On appeal from the Superior Court of New Jersey,
                   Chancery Division, Bergen County, Docket No. C-
                   000109-17.

                   Dunne Dunne & Cohen LLC, attorneys for appellant
                   (Frederick Richard Dunne, III, of counsel and on the
                   brief; Mena H. Ibrahim, on the brief).

                   Dominic V. Caruso, attorney for respondents.
PER CURIAM

      In this religious organization dispute, plaintiff Yagnesh Patel filed a four-

count complaint against defendants The Hindu Community Center (HCC), the

HCC Board of Trustees (the Board), and HCC Board members, Vinayak Raval

(HCC's past president), Parthiv Raval (HCC's current president), Nitin Desai

(HCC's secretary), and Suresh Patel. Plaintiff alleged defendants violated the

HCC bylaws by refusing to make him a member of the HCC and they also: (1)

engaged in ultra vires transactions, N.J.S.A. 15A:3-2; (2) unlawfully refused his

inspection of organizational records, N.J.S.A. 15A:5-24; (3) breached their

fiduciary duty; and (4) were unjustly enriched. Plaintiff further alleged he had

the right to inspect the HCC's records and the Board owed him a fiduciary duty

because his significant financial and volunteer contributions to the HCC

qualified him as a legal representative of the HCC for purposes of the Nonprofit

Corporation Act (NCA), N.J.S.A. 15A:1-1 to 15-2.

      Plaintiff appeals from the Chancery Division order granting defendants'

summary judgment motion dismissal of his complaint and denying his summary

judgment motion.     Plaintiff also appeals an order denying his motion for

reconsideration and his request to add Atul Shah as a plaintiff. We affirm both

orders.


                                                                           A-3486-18T3
                                        2
                                        I.

      We summarize the following facts from the record, viewing "the facts in

the light most favorable to [plaintiff,] the non-moving party." Globe Motor Co.

v. Igdalev, 225 N.J. 469, 479 (2016) (citing R. 4:46-2(c)).

      In support of his summary judgment motion, plaintiff certified the HCC

is a 501(c)(3) non-profit entity, whose bylaws state the organization's purpose

is to "secure the advancement and maintenance of the Hindu religion by

providing for religious worship and education." As to membership in the HCC,

the bylaws state, "[a]ny person who agrees to abide by and support the purposes

of this corporation[] may apply for membership" and all membership

"applications . . . shall be approved by the majority vote of the Board of

Trustees." The bylaws further provide the Board of Trustees is comprised of

"five members who shall be members in good standing for a period of at least

two years, be . . . resident[s] of New Jersey, have [a] permanent residence or

U.S.A. citizenship, and have no criminal record."

      Plaintiff's certification also states he has donated more than $25,000 to the

HCC and volunteered hundreds of hours for the HCC's activities over the past

twenty years, which qualifies him to be an HCC member. However, his previous

applications for HCC membership were denied by defendants. He alleged his


                                                                           A-3486-18T3
                                        3
status as a donor, devotee, volunteer, and fundraiser gave him a "vested interest

in seeing how the funds [he] donated and help[ed] to generate were used by the

HCC's trustees and management[,]" and that he is "a [b]eneficiary of the HCC

pursuant [to] its bylaws and therefore" has the "right to challenge the Board's

actions in the context of being a beneficiary."

      Plaintiff claimed defendants violated the organization's bylaws by not

conducting regular meetings and mismanaging the organization's money.

Plaintiff points specifically to his $15,000 donation to the HCC in 2004 for the

purchase of silver doors depicting Laxmi-Narayan, a Hindu deity, but the funds

were used for a different purpose. He argued the HCC's fiscal malfeasance is

evident when it turned down his offer of interest-free loans, yet accepted

interest-bearing loans from the Board's family members. He also alleged he paid

a $101 membership fee which has not been returned. Plaintiff further contended

defendants have not provided him access to the HCC's financial records despite

his repeated requests.

      Atul Shah, a Board member from 2004 to 2010, signed a certification

stating he paid his membership fee at the same time as plaintiff, and like

plaintiff, his membership was denied without reimbursement of his membership




                                                                         A-3486-18T3
                                        4
fee. Shah also stated if the court did not allow him to be added as a plaintiff in

the matter, he would file a separate, identical lawsuit.

      In a ten-page single-spaced written decision granting defendants'

summary judgment application and dismissing plaintiff's complaint, the trial

judge concluded "[d]espite [p]laintiff's devotion to the HCC and various

financial contributions to the [c]enter over the years, . . . these factors alone do

not simply cloak [p]laintiff with membership status and afford him inspection

rights under N.J.S.A. 15A:5-24." The judge explained while plaintiff asserted

Shah complained of similar misconduct by the Board, "Shah was a board of

trustee member, likely . . . entrusted with rights and privileges not granted to

ordinary devotees[,]" unlike plaintiff who was not a member. The judge also

noted there was no authority which would permit the court to compel defendants

to accept plaintiff as a member of the HCC. In addition, citing Passaic Nat'l

Bank & Tr. Co. v. E. Ridgelawn Cemetery, 137 N.J. Eq. 603, 608 (E. & A. 1945)

the judge explained under the NCA "it is the Attorney General of the State of

New Jersey who has the authority to prosecute allegations of fraud or

mismanagement by the [b]oard of [t]rustees of a non-profit organization

pursuant to his common law supervisory obligations regarding such charities."

      The judge finally explained:


                                                                            A-3486-18T3
                                         5
            The [c]ourt cannot find any evidence that would
            suggest [p]laintiff is a "member" of the HCC. . . .
            Therefore, the [c]ourt cannot find that [p]laintiff has
            standing to request disclosure of confidential books and
            financial records, nor can [p]laintiff demonstrate that
            the HCC owed or breached any fiduciary duty to him as
            a [d]evotee.

            It is also clear at this time that even if the purported
            wrongdoings by the Board of Trustees are taken as true,
            [p]laintiff is not the proper vehicle to investigate the
            wrongdoings based on his clear lack of standing.

      Plaintiff filed a timely motion for reconsideration and, in the alternative,

sought to add Shah as a plaintiff based upon "new evidence" of Shah's

certification to join the suit. The judge denied the motion for reasons set forth

in a written decision attached to his order. In denying plaintiff's motion, the

judge pointed out the motion advanced the same argument made on summary

judgment "cit[ing] the large amounts of time, energy and money afforded to the

[HCC] as both a donor and devotee." Because the judge already found plaintiff

was not a member in the summary judgment decision, he determined, based upon

Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996), there was no

basis for reconsideration as plaintiff "failed to point to any 'palpably incorrect

or irrational' holding or finding by [him], nor ha[d] [he] failed to consider or

appreciate the significance of probative competent evidence." The judge found

plaintiff improperly raised an argument not presented in his summary judgment

                                                                          A-3486-18T3
                                        6
motion: that his 2004 charitable donation should have been returned when his

expressed purpose for the gift was not honored. The judge also pointed out

plaintiff's complaint did not seek this relief by alleging fraud, and, moreover,

the statute of limitations had already expired for the claim.1

      Lastly, the judge acknowledged while it was within his discretion to

permit an amendment of the complaint to add Shah as plaintiff, he declined to

do so. The judge reasoned:

            The [c]ourt has previously emphasized that [p]laintiff
            is entitled to refile his application with . . . Shah as an
            added party, at which point this [c]ourt is certain that
            . . . [d]efendants will respond accordingly. However,
            the [c]ourt is sensitive to the fact that new parties can
            undoubtedly lead to new claims and legal theories,
            which subsequently will indisputably lead to the need
            to defend against those legal theories. . . . Shah was
            seemingly available to be added to this case during the
            entirety of its two-year history, yet [p]laintiff[] chose
            not to add him as a party. The [c]ourt finds that it would
            be nothing short of prejudicial and inequitable to
            simply add . . . Shah to the case and proceed
            immediately to trial without giving [d]efendant[s] the
            time and resources [they] would ordinarily be afforded
            to prepare [their] case. Therefore, the [c]ourt will not
            allow leave to amend the [c]omplaint at this time.

      This appeal followed.



1
 Under N.J.S.A. 2A:14-1, the statute of limitations for fraud claims is six years.
Catena v. Raytheon Co., 447 N.J. Super. 43, 52 (App. Div. 2016).
                                                                          A-3486-18T3
                                        7
                                       II.

      On appeal, plaintiff asserts three primary arguments in challenging the

judge's denial of his summary judgment and grant of summary judgment to

defendants. First, he maintains his unreturned membership fee creates a genuine

question of material fact that precludes summary judgment to defendants.

Alternatively, plaintiff also asserts his membership status is evidenced by his

volunteer work, donations, and demonstrated devotion to HCC. He maintains

he was given considerable responsibility to organize and run the administration

of the HCC's facilities and events and helped raise more than $123,000 for the

organization since 2010.

      Second, plaintiff argues even if he is not a member, his service as a donor,

devotee, volunteer, and fundraiser gives him "standing to challenge and/or

question the use of funds donated based the representations made in order to

solicit the funds, his ongoing relationship with the HCC and the fact that he paid

for his membership and has not had the funds returned." Plaintiff further

contends "the trust he has placed in the HCC, evidenced by the donations over

such a length of time, created a relationship allowing [him] to challenge the use

of the donated funds," and as a result defendants owe him a fiduciary duty.




                                                                          A-3486-18T3
                                        8
      Third, relying on Adler v. Save, 432 N.J. Super. 101, 104 (App. Div.

2013), plaintiff reiterates his reconsideration motion argument that because his

donation for a specific purpose was not used for that purpose, he has standing

to challenge the Board's conduct.

      Appellate review of a ruling on a motion for summary judgment is de

novo, applying the same standard governing the trial court. Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395, 405 (2014). Thus, we consider, as the motion

judge did, "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." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540, (1995)). "If there is no genuine issue of material fact," an

appellate court must then "decide whether the trial court correctly interpreted

the law." DepoLink Court Reporting & Litig. Support Servs. v. Rochman, 430

N.J. Super. 325, 333 (App. Div. 2013) (citation omitted).       We accord no

deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J.

463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009)). We

review the judge's ruling on the discovery motion for abuse of discretion. State

v. Enright, 416 N.J. Super. 391, 404 (App. Div. 2010).


                                                                        A-3486-18T3
                                       9
        Our review of a motion for reconsideration is more deferential. "[T]he

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) (citing Capital Fin. Co.

of Del. Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div. 2008)).

Reconsideration should only be used for those cases which fall into that narrow

corridor in which either: "'1) the [c]ourt has expressed its decision based upon a

palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either

did not consider, or failed to appreciate the significance of probative, competent

evidence.'" Ibid. (alterations in original) (citing Asterbadi, 398 N.J. Super. at

310).

        With these principles in mind, we conclude the trial judge's grant of

summary judgment to defendants and denial of summary judgment to plaintiff

was appropriate.

        The NCA provides the ability to contest a corporate action and inspection

rights for members of organizations incorporated under it. While the NCA 's

definition of the term "member" is not conclusive, our jurisprudence gives

authority to individual organizations to govern membership. N.J.S.A. 15A:3-2

provides:


                                                                           A-3486-18T3
                                       10
            No act of a corporation . . . shall be invalid because the
            corporation was without capacity or power to do that
            act . . . , but the lack of capacity or power may be
            asserted:

            a. In a proceeding by a member or trustee against the
            corporation to enjoin the doing of any act . . . .

      Further, N.J.S.A. 15A:5-24(b) and (d) provide in pertinent part:

            b. Upon the written request of any member, the
            corporation shall mail to that member its balance sheet
            as at the end of the preceding fiscal year, and its
            statement of income and expenses for that fiscal year.

                  ....

            d. This section shall not impair the right of any court,
            upon proof of a member of proper purpose, irrespective
            of the period of time during which the member shall
            have been a member of record, and irrespective of the
            total number of memberships held by that person, to
            compel the production for examination by the member
            of the books and records of account, minutes and record
            of members of a corporation.

      The NCA defines "[m]ember" as "a participant in a corporation having

such rights or obligations therein as provided in this act." N.J.S.A. 15A:1 -2(h).

      In Leeds v. Harrison, 9 N.J. 202 (1952), our Supreme Court discussed the

legal effect of a religious non-profit's bylaws. In finding judicial intervention

of an organization's bylaws was generally only justifiable "where the




                                                                          A-3486-18T3
                                       11
complaining parties have suffered an invasion of their civil rights, of person or

of property[,]" the Court explained:

            Corporate powers have their origin in a sovereign grant.
            Generally, they are derived from the articles of
            incorporation and the laws of the state under which the
            corporate body came into being. A corporation has
            those powers which are implicit in the charter as well
            as those which are expressed. Authority not reasonably
            within the corporate grant is excluded. But whatever
            may be fairly deemed an incident of the power
            expressly conferred by the charter is within the grant
            unless expressly prohibited. The instrument is to
            receive a reasonable construction to serve the general
            end in view.

            [Id. at 211-12, 215 (citations omitted).]

      The Leeds Court further expounded on religious and quasi-religious

societies, holding such organizations "may adopt a constitution and laws for the

regulation of their affairs, if conformable and subordinate to the charter and not

repugnant to the law of the land; and they are binding upon the membership until

modified or repealed in due course." Id. at 217.

      Here, in order to become an HCC member, the HCC's bylaws stipulate a

person's membership application must be approved by the Board. Plaintiff's

application was not approved, and he instead relies on his status as a donor and

volunteer to give him the status of a member. However, plaintiff advances no

legal argument to support his claims and does not point to any law which the

                                                                          A-3486-18T3
                                       12
HCC has violated in denying him membership. Therefore, his challenge of the

Board's actions under the NCA and his claim the Board improperly denied him

inspection rights of HCC's records were properly dismissed.

      Plaintiff's assertion the HCC Board breached a fiduciary duty owed to a

non-member plaintiff by not conducting regular meetings, not adhering to HCC

bylaws, and by turning down his offer of interest-free loans is without merit.

Plaintiff's reliance on F.G. v. MacDonell, 150 N.J. 550 (1997), is misplaced as

the facts there are inapposite to his situation with the HCC. In F.G., the plaintiff

parishioner filed a claim for breach of fiduciary duty against a defendant

clergyman because the plaintiff sought counseling from the defendant, who in

turn pursued and induced the plaintiff into a sexual relationship with him.        Id.

at 556. In finding that a clergyman could owe a fiduciary duty to a parishioner,

our Supreme Court ruled "[e]stablishing a fiduciary duty essentially requires

proof that a parishioner trusted and sought counseling from the pastor. A

violation of that trust constitutes a breach of the duty." Id. at 565. Plaintiff does

not allege he sought to establish a fiduciary relationship with defendants or an

HCC member that was breached. Plaintiff's financial donations or voluntary

contributions to the HCC are distinctly different from the fiduciary duty the

plaintiff in F.G. established in seeking counseling from the pastor.


                                                                             A-3486-18T3
                                        13
      There is no factual or legal support for plaintiff's unjust enrichment claim.

To establish a prima facie case for unjust enrichment he "'must show both that

defendant[s] received a benefit and that retention of that benefit without

payment would be unjust' and that [he] 'expected remuneration' and the failure

to give remuneration unjustly enriched . . . defendant[s]." EnviroFinance Grp.,

LLC v. Envtl. Barrier Co., LLC, 440 N.J. Super. 325, 350 (App. Div. 2015)

(citing VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994)).

      Plaintiff claims defendant Board members were unjustly enriched when

they retained interest payments on loans to the HCC, which were made by their

family members. If the Board would have accepted his loan offers to the HCC

with no interest, plaintiff contends the Board members would not be enriched.

Considering plaintiff has not shown he expected remuneration for his no interest

loan offer to the HCC, he cannot make a prima facie claim of unjust enrichment

and dismissal on summary judgment of the claim was proper.

      Likewise, there is no merit to plaintiff's claim defendants owed him a

fiduciary duty as a donor. First, we note because plaintiff only raised such a

claim in his motion for reconsideration, the judge was correct in holding it was

not properly before the court. See Medina v. Pitta, 442 N.J. Super. 1, 18 (App.

Div. 2015) (citing Cummings, 295 N.J. Super. at 384) ("Filing a motion for


                                                                           A-3486-18T3
                                       14
reconsideration does not provide the litigant with an opportunity to raise new

legal issues that were not presented to the court in the underlying motion.").

      Plaintiff's fiduciary duty claims are also substantively without merit. He

cites to three cases arguing the Board is required to respond to his information

request and allow for his review of financial records because it owes him a

fiduciary duty as a donor, Adler, 432 N.J. Super. at 104 (holding "a charity that

solicits and accepts a gift from a donor, knowing that the donor 's expressed

purpose for making the gift was to fund a particular aspect of the charity 's

eleemosynary mission, is bound to return the gift when the charity unilaterally

decides not to honor the donor's originally expressed purpose"), Ludlam v.

Higbee, 11 N.J. Eq. 342, 348 (N.J. Ch. 1857) (holding that donors who conveyed

property in charitable trust to be used by "all denominations of Christians" could

seek redress from the court to have the "property restored to its original purpose

and trusts" when some denominations of Christians were subsequently excluded

from the premises), and Kelly v. McIntire, 123 N.J. Eq. 351 (N.J. Ch. 1938)

(proscribing a portion of a church congregation from unilaterally withdrawing

from its national affiliation and joining a new affiliation when its church

property was acquired and held for religious uses according to the tenets of its

original denomination).


                                                                          A-3486-18T3
                                       15
      While Adler and Ludlam offer relief to donors of charitable and religious

organizations, the type of relief granted is different than that sought here by

plaintiff. Plaintiff seeks to conduct oversight of the Board and the HCC , which

was not the plaintiffs' gravamen in those two cases. Nowhere in his underlying

complaint does he demand the return of his donation as the plaintiffs demanded

in those two cases. Neither of those two cases nor Kelly imposes a fiduciary

duty to donors to non-profit organizations on the singular basis of their gift

giving. In fact, plaintiff cites no law to support his claim that defendants owe

him a fiduciary duty or were unjustly enriched due to his magnanimous donation

of money, time and service.

                                       III.

      Finally, as to the denial of his reconsideration motion we conclude the

judge did not err, noting his appellate argument is limited solely to the judge's

decision rejecting his request to amend the complaint to add Shah as a plaintiff. 2

      Citing Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 500-01 (2006),

Kernan v. One Washington Park Urban Renewal Assocs., 154 N.J. 437, 457



2
  We consider all other arguments raised before the trial judge and not briefed
waived. See Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div.
2011)("An issue not briefed on appeal is deemed waived."); Pressler & Verniero,
Current N.J. Court Rules, cmt. 5 on R. 2:6-2 (2020).
                                                                           A-3486-18T3
                                       16
(1998), and Fisher v. Yates, 270 N.J. Super. 458 (App. Div. 1994), plaintiff

contends motions for leave to amend pleadings are left to the sound discretion

of the court in light of the factual situation existing at the time each motion is

made, particularly where the motion is to add new parties or claims on the eve

of trial. Plaintiff argues in Notte, 185 N.J. at 501, the Court held the exercise of

discretion requires a trial judge to consider "a two-step process: whether the

non-moving party will be prejudiced, and whether granting the amendment

would nonetheless be futile."      Under the second prong, plaintiff argues to

determine "futility" the judge should not consider the ultimate merits of the

claim as "those determinations must be made 'in light of the factual situation

existing at the time each motion is made.'" Ibid. (quoting Kernan, 154 N.J. at

457). He asserts leave to amend should be liberally granted "even if the ultimate

merits of the amendment are uncertain."          G&W, Inc. v. Borough of E.

Rutherford, 280 N.J. Super. 507, 516 (App. Div. 1995).

      Specifically, plaintiff argues adding Shah as a plaintiff, or having Shah

replace him in the complaint, would correct any perceived deficiency and allow

this matter to quickly proceed to trial. Plaintiff argues there is no question a

claim exists. He argues because litigation has been ongoing for two years and

the only other alternative "is starting all over," for defendants to contend this


                                                                            A-3486-18T3
                                        17
would prejudice them is "laughable." Plaintiff asserts the real prejudice and

harm to all parties, is starting litigation anew. He points out Shah has already

been deposed and submitted a certification, and the parties will spend

unnecessary 1egal fees if the case isn't allowed to proceed to trial with Shah as

plaintiff.

       Under our standard of review, we conclude the judge did not err in

denying defendant's motion for reconsideration to permit plaintiff to amend his

complaint to add Shah as plaintiff. We first note neither plaintiff nor Shah

complied with Rule 4:9-1, by including a copy of the proposed pleading with a

motion to amend. Plaintiff's counsel's reconsideration motion argument that

Shah "has the same grievances and would essentially be filing the same case,"

which echoed Shah's certification submitted with the motion that he would "file

essentially an identical complaint against the same [d]efendants," does not

comply with Rule 4:9-1.

       Putting aside this procedural deficiency, we do not agree with plaintiff the

judge abused his discretion in concluding adding Shah in the midst of this two-

year litigation would be prejudicial to defendants who would then be compelled

to reconsider their defense strategy and restart discovery related to Shah's




                                                                           A-3486-18T3
                                       18
claims. Hence, Shah should be left to fulfill his assertion that he will file his

own complaint.

      To the extent we have not addressed any of plaintiff's arguments it is

because we conclude they lack sufficient merit to warrant discussion in written

opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




                                                                         A-3486-18T3
                                      19
