SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1256-19

JAMES DEAN, WILLIAM ROSS, 

SR., WILLIAM ROSS, JR., JAMES 

GIESE, JAMES JENCO, 

CHARLES DWYER, WILLIAM 

FIORE, FRANK CARPENTER, 

ALASDAIR SWANSON, 

BERNARD DAVIS, DIANE 

IMPERIALE, CHARLES BALETTI, 

CHARLES ROTUNDI, ANTHONY 

CAPUTO, THOMAS HOATSON, 

RICHARD BAUM, NANCY 

PARIS, KI HYUN HAN, RICHARD 

WRIGHT, WARREN PETRAGLIA, 

ROBERT FAILLA, STEVEN 

BURNS, ED CHARLES CERNY, 

DINA GOLAS, JEFFREY 

MORYAN, and KENNETH 

KUNZMAN,

Plaintiffs-Appellants,

v.

ROCK SPRING CLUB, INC., 

MGC-RSC, INC., and 

MONTCLAIR GOLF CLUB, INC.,

Defendants-Respondents.

______________________________

NOT FOR PUBLICATION WITHOUT THE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.
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A-1256-19

Submitted March 1, 2021 – Decided March 19, 2021

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Docket No. L-4329-19.

William J. Rush, attorney for appellants.

Sills Cummis & Gross, PC, attorneys for respondents 

(Mark Evan Duckstein, of counsel and on the brief; 

Kyle E. Vellutato, on the brief).

PER CURIAM

Plaintiffs, twenty-six former members of a defunct golf club, appeal from 

a November 8, 2019 order granting summary judgment in favor of defendants 

Rock Spring Club, Inc. (RSC), MGC-RSC, Inc. (Merged Club), and Montclair 

Golf Club, Inc. (MGC) and dismissing plaintiffs' claims with prejudice. We 

affirm for the reasons expressed by Judge Thomas R. Vena in his cogent and 

thorough memorandum opinion dated November 8, 2019. 

The following facts were undisputed. RSC, a private country club in West 

Orange, owned a 138-acre property with a clubhouse. RSC offered various 

activities to its members, including access to an eighteen-hole golf course. RSC 

was governed by a twelve-member Board of Governors (RSC Board) and had 

written by-laws. 
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In 2015, RSC could no longer support itself financially and discussed a 

potential merger with another club facility located in Montclair, MGC. 

Alternatively, RSC considered selling its property and dissolving the club.

After weighing the options, the RSC Board decided a merger with MGC 

was preferable to selling its property. As a result, on October 19, 2015, RSC

and MGC executed a letter of intent (LOI), outlining a merger of the two golf 

club facilities. 

RSC and MGC began negotiating the terms of a merger agreement. 

During the negotiations, MGC discovered RSC's financial position was more 

precarious than originally stated, and it was agreed MGC would commit to 

operating the RSC property for three years, as opposed to the five years set forth 

in the LOI. 

On November 19, 2015, the RSC Board provided information regarding 

the terms of the proposed merger to its members. A vote on the merger was held 

on December 19, 2015. RSC's members voted in favor of the merger. The final 

vote count tallied "125 votes in favor, 1 affirmative vote against, and 18 non-
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voting members (87% approval)."1 Plaintiffs voted on the merger proposal as 

follows: eighteen plaintiffs voted in favor and four plaintiffs did not vote.2

MGC's members voted to approve the merger and a merger agreement was 

signed on December 31, 2015. As a result of the merger, plaintiffs' club was 

eliminated and the Merged Club, MGC-RSC, Inc., became a wholly owned 

subsidiary of MGC.3

Under the merger agreement, RSC members became MGC members and 

continued to use RSC's facility in West Orange. In addition, the merger 

agreement provided the Merged Club would maintain RSC's property for a 

minimum of three years, including payment of the mortgage and RSC's other 

outstanding debts. In the event RSC's property was sold within that three-year

period, the merger agreement provided the former RSC members would have an 

economic interest in any net proceeds from such a sale. Conversely, sale of the 

RSC property after the three-year period under the merger agreement would not 

1

 In accordance with RSC's by-laws, approval of the merger required a twothirds vote of RSC's eligible voting members. 

2

 Pursuant to RSC's by-laws, only twenty-two plaintiffs were eligible to vote on 

the merger proposal at the time. 

3 MGC-RSC, Inc., later renamed Rock Spring Club, Inc., became vested with 

RSC's 183-acre property after the merger. 
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entitle the former RSC members to any profits associated with a sale of the 

property. The merger agreement expressly provided MGC owed no 

"responsibility for liabilities due to RSC [r]esignees . . . or other former and 

current RSC [m]embers" except as provided in the document. 

The merger agreement also required MGC to "either replace or assume 

RSC's indebtedness that [wa]s secured by a mortgage on RSC['s]" property. The 

estimated amount of the mortgage at the time was $3.75 million. Based on 

RSC's prior financial difficulties and in order to facilitate payment of RSC's

debts, in October 2018, MGC decided to refinance the RSC property. As part 

of the refinancing, "title to the RSC property was conveyed from RSC to MGC 

by [d]eed dated October 30, 2018, and recorded on November 8, 2018[.]" The 

property transfer had no impact on the operation of RSC's facilities. Nor was 

there any consideration involved in the transfer of the property for the purpose 

of refinancing RSC's outstanding mortgage. 

By late 2018, the financial situation of the Merged Club had not improved. 

It became apparent the Merged Club could no longer retain and operate RSC's 

property. By that time, a majority of former RSC members resigned from the 

Merged Club to avoid paying annual dues for the next year in accordance with 

the terms of the merger agreement. Prior to taking any action, MGC asked its 
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members what should be done with RSC's property. Sixty-eight percent of the 

responding MGC members favored selling RSC's property.

In January 2019, MGC retained a commercial real estate broker to market 

RSC's property. Prior to officially listing RSC's property for sale, the Township 

of West Orange asked MGC to delay the listing so Essex County and the 

Township could discuss acquiring the property. Ultimately, the Township, 

without Essex County's participation, agreed to purchase RSC's property for $11 

million. The Township and MGC signed a written contract of sale in late March 

2019 and RSC's property was officially sold to the Township on April 18, 2019, 

more than three years after the date of the merger agreement. 

Because plaintiffs believed they were entitled to a portion of the net 

proceeds from the sale of RSC's property, on June 11, 2019, they filed a 

complaint alleging defendants engaged in conversion, unjust enrichment, 

promissory estoppel, breach of the merger agreement, fraud in the inducement, 

common law fraud, and breach of the fiduciary duty of good faith. Prior to filing 

an answer, defendants moved for summary judgment. Plaintiffs filed opposition 

and Judge Vena heard counsels' arguments on November 8, 2019. 

Judge Vena, ruling from the bench at the conclusion of the arguments, 

granted defendants' motion for summary judgment and dismissed plaintiffs' 
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claims with prejudice. A corresponding order and written decision were issued 

on November 8, 2019.

Judge Vena concluded the issues in defendants' summary judgment 

motion could "be resolved by reviewing the [m]erger [a]greement." He noted 

RSC "simply merged with Montclair" and did not dissolve or liquidate its assets 

according to the merger agreement. He also found "[p]laintiffs conceded they 

were not members [of the Merged Club] at the end of the three years." In 

addition, the judge highlighted the provision in the merger agreement that "if 

any of the Rock Spring property was sold, transferred, leased or otherwise 

disposed of within the three-year period then Rock Spring members would have 

been entitled to a pro rata share equivalent to 'the face value of the relevant 

[Rock Spring] Share without interest.'"

Based on the unequivocal terms of the merger agreement, Judge Vena 

rejected plaintiffs' argument that the November 2018 deed, for the purpose of 

refinancing the mortgage on RSC's property, triggered plaintiffs' entitlement to 

a financial return as a transfer of the property within the initial three-year term

of the merger agreement. The judge explained "the deeding of the property 

yielded no funds and was simply a management tactic. The fact that the 
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conveyance did not produce a return on the asset for the [p]laintiffs did not mean 

a breach occurred."

Regarding the argument that granting summary judgment prior to the end 

of the discovery period was premature and improper, Judge Vena found 

plaintiffs failed to identify the discovery required to establish any elements of 

their claim. Further, the judge determined "[a]dditional discovery would not 

shed any light on the dissolution and liquidation issue or the issue of the sale of 

the property." 

On appeal, plaintiffs argue summary judgment was improper because 

there was no opportunity for discovery. In addition, plaintiffs contend the judge 

misinterpreted the facts and failed to provide adequate reasons in support of his 

summary judgment decision. We disagree and affirm for the oral and written 

reasons stated by Judge Vena on November 8, 2019. We add the only the 

following comments.

Generally, plaintiffs are correct that courts should "afford 'every litigant 

who has a bona fide cause of action or defense the opportunity for full exposure 

of his [or her] case." Mohamed v. Iglesia Evangelica Oasis De Salvacion, 424 

N.J. Super. 489, 498-99 (App Div. 2012) (quoting Velantzas v. Colgate 

Palmolive Co., 109 N.J. 189, 193 (1988)). "Where a party opposing a motion 
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for summary judgment is unable to file fully responsive supporting papers 

because critical facts are particularly within the moving party's knowledge, the 

motion should be denied to permit the opposing party an opportunity for 

complete discovery." Id. at 499 (citing Bilotti v. Accurate Forming Corp., 39 

N.J. 184, 188 (1963)).

However, summary judgment may be granted prior to the completion of 

discovery if a party fails to identify any discovery that might alter the outcome 

of the case. Kaczorowska v. Nat'l Envelope Corp., 342 N.J. Super. 580, 591 

(App. Div. 2001) (quoting J. Josephson, Inc. v. Crum & Forester Ins. Co., 293 

N.J. Super. 170, 204 (App. Div. 1996)) ("When the incompleteness of discovery 

is raised as a defense to a motion for summary judgment, that party must 

establish that there is a likelihood that further discovery would supply the 

necessary information."). A party opposing a summary judgment motion prior 

to the end of the discovery period "must do more than simply show that there is 

some metaphysical doubt as to the material facts." Triffin v. Am. Int'l. Grp., 

Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004) (quoting Big Apple BMW, 

Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992)). 

Judge Vena properly granted summary judgment because the facts 

relevant to resolution of plaintiffs' claims were set forth in the merger 
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agreement. Moreover, plaintiffs failed to identify any discovery that might have 

changed the outcome of the motion. No plaintiff submitted an affidavit or 

certification establishing relevant and material disputed facts or identifying 

critical information that could not be ascertained absent discovery. Pursuant to 

Rule 4:46-5, "an adverse party may not rest upon the mere allegations or denials 

of a pleading, but must respond by affidavits . . . setting forth specific facts 

showing that there is a genuine issue for trial." 

For the first time on appeal, plaintiffs assert discovery was required to 

resolve certain disputes. However, even on appeal, plaintiffs do not establish 

how these disputes implicate issues of material fact requiring discovery beyond 

the plain language of the merger agreement. In addition, plaintiffs fail to explain 

the need for discovery to resolve these disputes or how the discovery would have 

altered the outcome of defendants' motion.

We also reject plaintiffs' contention the judge failed to set forth the facts 

upon which he relied in rendering his legal conclusions. Judge Vena made the 

specific findings, which more than adequately addressed each of plaintiffs' 

claims consistent with Rule 1:7-4. He found RSC "did not undergo a dissolution 

and did not liquidate its assets, it simply merged with MGC" and, therefore, the 

"dissolution or liquidation" provision did not apply. He also concluded 
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"[c]hanging title through deed, even between subsidiary and parent corporation, 

[wa]s a transfer" yet "the deeding of the property yielded no funds and was 

simply a management tactic." Judge Vena determined "[t]he dispute between 

the parties center[ed] on differing interpretations of the [a]greement[,]" and 

MGC complied with the terms of the merger, therefore "[a]dditional discovery 

would not shed any light on the dissolution and liquidation issue or the issue of 

the sale of the property." 

Plaintiffs' claims were factually interrelated and premised upon the

language in the merger agreement. Because plaintiffs did not challenge the 

validity of the merger agreement, Judge Vena based the dismissal of plaintiffs'

claims on the unequivocal language in that document. Plaintiffs argue, 

generally, the judge's findings lacked sufficient "breadth" and "detail."

However, plaintiffs do not argue Judge Vena's findings were incorrect or 

improper. Having reviewed the record, we are satisfied Judge Vena's factual 

findings and legal conclusions comported with the requirements of Rule 1:7-4.

Affirmed.