ERIC D. SIMONS v. RON LEWIS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ERIC D. SIMONS,

Plaintiff-Appellant,

v.

RON LEWIS, RONALD A. DOMINA,

WILLIAM E. NICKOLEY,

JOYCE ISIDOR, ANTHONY PARISI,

DOROTHY FLANAGAN, a/k/a

DOT PALME, and CHURCH ALIVE, INC.

d/b/a RANDOLPH CHRISTIAN CHURCH,

Defendants-Respondents.

_________________________________

October 2, 2014

Argued September 9, 2014 - Decided

Before Judges Reisner, Koblitz and Higbee.

On appeal from New Jersey Superior Court, Chancery Division, Morris County, Docket No. C-92-11.

Z. Lance Samay argued the cause for appellant.

John L. Thurman argued the cause for respondents (Farrell & Thurman, PC, attorneys; Mr. Thurman, of counsel and on the brief).

PER CURIAM

Plaintiff Eric Simons, the former pastor of defendant Church Alive, Inc., d/b/a Randolph Christian Church (the Church), appeals from a June 15, 2012 order dismissing his twelve-count complaint on First Amendment grounds; a July 30, 2012 order vacating the June 15 order to permit plaintiff to file a limited amendment to the complaint; and a March 22, 2013 order disallowing his proposed amended complaint and reinstating the June 15 order dismissing the complaint with prejudice.1

On this appeal, plaintiff raises the following points for our consideration

POINT I

UNDER THE APPLICABLE STANDARDS OF REVIEW, THE COURT BELOW ERRED IN DISMISSING THE COMPLAINT, WITH PREJUDICE, EITHER BY HAVING GRANTED DEFENDANTS' MOTION TO DISMISS OR BY HAVING ENTERED AN ORDER OF SUMMARY JUDGMENT TO THE SAME EFFECT, ON THE MISTAKEN GROUND THAT SUCH ACTION WAS REQUIRED BY THE FIRST AMENDMENT TO THE CONSTITUTION OF THE UNITED STATES.

A. The Standard of Review.

B. The lower court's limited findings of fact and related conclusions of law do not comport with established judicial guidelines governing motions to dismiss and motions for summary judgment.

C. The court below failed to make required findings of fact related to relevant conclusions of law regarding most of the claims made in the Complaint and improperly declined to consider justiciable claims because of its undue perception of religious undertones.

D. Defendants' inclusion into the record of numerous exhibits that are not referenced in or relied upon by the Complaint automatically converted the motion to dismiss into motion for summary judgment that was premature, should not have been heard, and should have been denied.

POINT II

THE CONCLUSION OF THE COURT BELOW THAT THE ESTABLISHMENT CLAUSE BARS PLAINTIFF'S COMPLAINT IS REVERSIBLE ERROR FOR THE REASON THAT DEFENDANTS' PURPORTED CORPORATE ACTS WERE NULLITIES AND, THEREFORE, COULD NOT SERVE AS LEGITIMATE BASES FOR INVOKING THE FIRST AMENDMENT AS A SHIELD AGAINST PLAINTIFF'S CAUSE OF ACTION -- ALL OF WHICH ARE SUBJECT TO ADJUDICATION PURSUANT TO WHOLLY SECULAR, NEUTRAL PRINCIPLES.

POINT III

CONTRARY TO THE LOWER COURT'S CONCLUSION, EQUITY DOES NOT BAR PLAINTIFF'S CLAIM THAT THE PURPORTED CORPORATE ACTS OF DEFENDANTS WERE NULLITIES.

A. Plaintiff does not have "Unclean Hands."

B. The maxim of Equity pertaining to self-inflicted harm is not here applicable because the harm of which plaintiff complains was not brought about by his having composed the Board, without the power to do so, but, rather, by the wrongful and unauthorized acts and omissions of defendant members of the Board.

C. Any negligence on the part of plaintiff in mistakenly appointing unqualified candidates, without the requisite authority to make appointments, was superseded and effectively nullified by the wrongful acts and omissions of defendants.

POINT IV

THE PROPOSED AMENDMENT IS A PROPER PLEADING THAT COMPLIED FULLY WITH THE JULY 30 ORDER; IT WAS REVERSIBLE ERROR FOR THE COURT BELOW TO HAVE REJECTED IT AND TO DISMISS THE COMPLAINT WITH PREJUDICE.

Having reviewed the record in light of the applicable legal standards, we affirm.

I

Because the complaint was dismissed on a Rule 4:6-2(e) motion, we review the trial court's order de novo, using the same standard as the trial court. Donato v. Moldow, 374 N.J. Super. 475, 483 (App. Div. 2005). Our analysis "is limited to examining the legal sufficiency of the facts alleged on the face of the complaint," and we will search "'the complaint in depth and with liberality to ascertain whether the fundament of a cause of action may be gleaned even from an obscure statement of claim. . . .'" Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (citations omitted).2 We resolve all reasonable inferences of fact in plaintiff's favor. Ibid.

Plaintiff's legal arguments are primarily addressed to the allegations of his proposed amended complaint. However, to understand our decision and that of the trial court, it is necessary to consider both the complaint and the proposed amendment, as well as the trial court's decisions on those pleadings.

Viewing the complaint and the proposed amended complaint in the light most favorable to plaintiff, these are the most pertinent facts. In 1999, plaintiff accepted an offer of employment, extended by the Interim Pastor and Elders of Church Alive, to become the Church's new Senior Pastor. In accepting employment, plaintiff relied on the terms of the Church's 1 995 Constitution and 1995 by-laws. He understood that "he could only be removed as Senior Pastor of the Church if his behavior would scripturally disqualify him from holding the office of a Pastor." The complaint quotes the by-laws as providing that the Senior Pastor could be removed for "a sin pattern." As quoted in the complaint, the 1995 Constitution gave the Senior Pastor, together with the elders and pastors of the church, "the authority to act on behalf of the [C]ongregation."

Plaintiff put a lot of work into restoring the Church to financial solvency. His wife volunteered her services to the Church in various capacities. In 2007, a number of the congregation's most affluent members (the "disaffected group") left Church Alive and joined another church. In 2008, plaintiff engineered the sale of the Church's building to another church for $5 million. According to the complaint, some of the sale proceeds were used to "repay" plaintiff's wife for her past "volunteer" work. In May 2008, another $1.6 million was used to buy "a spacious residential dwelling" for use as a congregational parsonage and a home for plaintiff and his wife. In October 2008, several members of the disaffected group made "unfounded allegations" to the State Division of Consumer Affairs (Division) and demanded the return of their past contributions to the Church.

The Division investigated the allegations that plaintiff and others had violated the New Jersey Charitable Registration and Investigation Act and the Nonprofit Corporation Act. Plaintiff and "other interested parties to the Investigation" agreed to settle the complaint without admission of wrongdoing, by signing a consent order filed with the Division on April 1, 2009 (the Consent Order). The Consent Order required plaintiff to resign as Church Alive's corporate president and to resign from the Church's governing board. He was also required to "relinquish all control and authority of Church Alive's financial holdings, accounts and corporate affairs." The Consent Order further required a restructuring of Church Alive's corporate governance, including the appointment of an independent "Official Board" and a state-approved "Fiscal Monitor."3

The complaint recites that, "at or about the time that the Consent Order was drafted" plaintiff "asked defendants Domina and Lewis to serve on this independent Official Board, and each agreed." According to the complaint, plaintiff and Lewis had previously been making plans to merge Church Alive with Lewis's church, MSNY, and to have plaintiff appointed as Executive Pastor of the new merged "megachurch." Plaintiff relied on that expectation in appointing Lewis as Vice-President of Church Alive. After the Consent Order was signed, defendant also appointed the other named defendants to positions as corporate officers on the corporation's "Board of Trustees," and to an Internal Advisory Board comprised of congregation members. Plaintiff drafted new corporate by-laws for the Church, which were approved by the Official Board on May 8, 2009. Plaintiff relied on these new by-laws in agreeing to resign as President and CEO of Church Alive and remain as Senior Pastor. The 2009 by-laws gave the corporate officers the authority to vote to remove the Senior Pastor for spiritual disqualification, but made that decision subject to arbitration by a Board of Advisors. The 2009 by-laws, which are in the record, also authorized the Official Board to amend the by-laws.4

In October 2009, with the Official Board's approval, plaintiff took a sabbatical from his position as Senior Pastor. While he was on sabbatical, Lewis and Domina conspired to have someone else appointed as Senior Pastor and expressed the view that plaintiff was spiritually unqualified for the position. They also influenced the Board to go along with a "questionable recommendation" by the Fiscal Monitor that the Church sell the parsonage where plaintiff was residing. Plaintiff believed that selling the parsonage was a poor financial choice, not required by the Consent Order; Lewis contended that its ownership by the Church created an "appearance of evil." The complaint recites that, in addition to selling the parsonage, the Church refused to employ plaintiff's wife as the listing broker for the sale, contending that this would create "the appearance of impropriety."

After a series of disagreements over the financial terms of his employment, the Board sent plaintiff a letter dated October 1, 2010, signed by "all Official and Internal Board Members other than Lewis" directing him not to attend services at the Church. He attended anyway, and the Board members called the police.

On October 4, 2010, the Official Board adopted new by-laws, which made it easier for the Church to terminate a senior pastor's employment. They then invited plaintiff to a meeting to discuss his proposed ouster on grounds of spiritual disqualification. Plaintiff objected, contending that the Board was not authorized to adopt new by-laws and claiming that he had relied on the protections of the prior by-laws in resigning his corporate office and remaining as Senior Pastor. By letter dated October 8, 2010, the Board advised plaintiff that he had been removed as Senior Pastor, albeit without providing any specific charges or reasons for his termination from employment and excommunication from the congregation.

Plaintiff alleged that his termination was legally ineffective because, at the time, Domina was the only "duly appointed and qualified corporate officer," Lewis having resigned earlier. He also claimed that defendant Nickoley was not properly appointed as Secretary of the Church and was spiritually unqualified. He asserted that since New Jersey corporate law required at least three corporate officers to transact business, and the Church's new by-laws required a simple majority of the Board, two officers were required to effectuate his termination. Because only Domina was duly appointed and authorized to act, plaintiff's termination was invalid.

Based on those facts, as pled in the complaint, plaintiff asserted causes of action for fraud, breach of contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duties including the "special, moral and scriptural duties of loyalty that are owed to [plaintiff]" as pastor and congregation member, promissory estoppel, tortious interference with contract, tortious interference with business and professional opportunities, oppressive conduct and unlawful expulsion, conversion by taking over plaintiff's "ministry," unjust enrichment, defamation which harmed his ministry and standing in his community, and emotional distress.

As relief, plaintiff demanded that the court nullify his excommunication and termination from employment as Senior Pastor, order that he be restored to the congregation and to his ministry in the Church, take actions to "promote the restoration [to plaintiff] of the affections and confidence of the Congregation," remove "all members of the Official and Internal Board of Trustees" of the Church, and order defendants to pay him money damages.

After obtaining copies of the documents referenced in the complaint, defendants filed a motion to dismiss. See R. 4:18-2. At oral argument of the motion on June 15, 2012, plaintiff's counsel agreed with the trial judge that plaintiff's primary claim was breach of contract. In that connection, the oral argument focused on plaintiff's arguments that the Board acted contrary to the Church's by-laws in terminating his employment, and that his contract with the Church required that the Board adhere to the by-laws. During the course of the argument, plaintiff's counsel asserted that

The transition from the old corporate governing body to the new corporate governing body, was done pursuant to authorization that my client had as the president of the corporation to appoint these individuals and to have bylaws adopted. That was okay.

However, he argued that the Board members needed to be reappointed annually and they were not. Hence, they had no authority to amend the by-laws, and had no authority to terminate plaintiff's employment. Counsel also contended that the members of the entire congregation, rather than solely the Board members, had to vote on plaintiff's termination.

In an oral opinion placed on the record immediately after the argument, the trial judge concluded that the selection and retention of a clergy person was "a core, absolutely core ecclesiastical issue." Relying on Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, ___ U.S. ___, 132 S. Ct. 694, 181 L. Ed. 2d 650 (2012), the judge reasoned that the First Amendment precluded a court from involvement in disputes over "whether or not that [clergy] person is going to be hired, retained or not." The judge considered plaintiff's claim as asserting a breach of contract, but concluded that the termination of plaintiff's employment was a matter the court could not address without unconstitutionally entangling itself "deeply into the doctrine of this church." In reaching that conclusion, the judge considered the by-laws themselves, which solely authorize the termination of a pastor for scriptural disqualification. She also found that the court could not adjudicate the qualifications of those persons ("ministers of the gospel") whom the by-laws required be involved in the termination decision.

Plaintiff filed a motion to "clarify, reconsider and vacate order of dismissal." In his motion, plaintiff sought "only" to have the trial court allow him to pursue his claim that his termination was "a nullity" because the Church's Board "was improperly and unlawfully constituted" and hence lacked legal authority to terminate his employment. On July 30, 2012, the court entered an order vacating the June 15 order "only with regard to claim of improper board composition," and permitting plaintiff to file an amended complaint limited solely to that issue.

Plaintiff submitted to the court a proposed thirteenth count of the complaint, asserting that he invalidly appointed the Board members and corporate officers who eventually voted to terminate his employment. He contended that he had no authority to appoint them, because he did so unilaterally without the approval of the Church elders/pastors, and because some of the appointees allegedly were not members of the Church. He also sought to reincorporate in the thirteenth count a number of claims previously included in the original twelve counts the court had dismissed. Those claims asserted that, in various ways, the termination was accomplished in violation of the Church's governing documents.

After additional motion practice, aimed at the scope of the proposed amendment, the trial court entered an order on March 22, 2013, "denying plaintiff's second motion for reconsideration and reinstating dismissal with prejudice."5 In a statement of reasons written on the last page of the order, the judge explained

This application does not comply with the court's July 30, 2012 order which allowed submission of an amended complaint on a procedure to amend. The amended complaint was to deal only with the issue of improper board composition. That proposed Amended Complaint has not been submitted. Rather, plaintiff submitted an "Addendum" to the initial complaint, including by reference all allegations and claims of the initial pleading.

A review of that pleading, as well as the papers submitted on this application has convinced this court that not even the propriety of the board composition can be scrutinized without excessive entanglement with the issue of plaintiff's alleged scriptural infirmities.

In addition, the court is faced with the issue of plaintiff claiming the improper structure of a board that was his own composition, a legally and factual[ly] infirm claim.

II

On this appeal, plaintiff argues that the trial court erred in dismissing his complaint on a motion to dismiss and erred in concluding that his claims were barred by the First Amendment. His complaint summarized those claims as follows

By their wrongful acts and omissions . . . [defendant Church and its Board] have undermined and usurped Simons' authority as Senior Pastor of the Church, have unjustifiably expelled him from the congregation of the Church ("Congregation"), and have unjustifiably ousted him from his ministry, all in violation of Church Alive's By-Laws and Simons' contractual entitlement, and contrary to the laws and public policy of the State of New Jersey.

His amended complaint expanded on his claim that the Board had no authority to terminate his pastoral employment because he had no authority to appoint the Board members. We find all of plaintiff's arguments unpersuasive.

We conclude that dismissal was warranted based only on the complaint itself, plus the undisputed documents referenced in the complaint, without considering any other evidence.6 See Banco Popular, supra, 184 N.J. at 183. The trial court did not consider any other documents in dismissing the complaint. Therefore, we find no error in the trial court's dismissing the complaint under Rule 4:6-2(e). This point requires no further discussion. R. 2:11-3(e)(1)(E).

Next, we conclude that the First Amendment bars our courts from entangling themselves in this dispute between a Church and its former minister. Finally, plaintiff's primary argument that the Board members could not fire him due to his own unlawful conduct in appointing them is barred by the doctrine of unclean hands.

It is fundamental that courts cannot involve themselves in disputes over the hiring and firing of clergy, without violating the First Amendment. Serbian E. Orthodox Diocese v. Milivojevich, 426 U.S. 696, 698, 96 S. Ct 2372, 2375, 49 L. Ed. 2d 151, 156 (1976). The prohibition applies to claims that a pastor's termination was "procedurally and substantively defective under the internal regulations of the . . . Church and were therefore arbitrary and invalid." Id. at 698, 96 S. Ct. at 2375, 49 L. Ed. 2d at 156.

As our Supreme Court recognized, the Establishment Clause of the First Amendment precludes a court from adjudicating disputes over the hiring and firing of clergy

When making such evaluations, courts examine two dimensions of entanglement under the Establishment Clause: substantive and procedural entanglement. Substantive entanglement involves the same concerns as the Free Exercise Clause analysis and may occur, for example, when a "church's freedom to choose its ministers is at stake." Thus, where a minister seeks redress for termination, failure to hire, changes in work schedule, or other similar decisions involving, at their heart, a church's core right to decide who (and in what manner he or she) may propagate its religious beliefs, the Establishment Clause clearly prevents review by a civil court. ("A church's selection of its own clergy is one such core matter of ecclesiastical self-governance with which the state may not constitutionally interfere.")

. . . .

The cognate "church autonomy doctrine" arose out of the Free Exercise Clause; freedom to select the clergy "must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference." The doctrine has since been described as being rooted in both of the Religion Clauses to protect a church's freedom to regulate its own internal affairs by "prohibit[ing] civil court review of internal church disputes involving matters of faith, doctrine, church governance, and polity." The church autonomy doctrine is also based on "a long line of Supreme Court cases that affirm[s] the fundamental right of churches to 'decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.'"

[McKelvey v. Pierce, 173 N.J. 26, 41-44 (2002) (citations omitted).]

McKelvey recognized that, in certain limited circumstances, courts may adjudicate disputes between a church and a minister involving purely secular legal issues. However, those situations are limited

If, however, the dispute can be resolved by the application of purely neutral principles of law and without impermissible government intrusion (e.g., where the church offers no religious-based justification for its actions and points to no internal governance rights that would actually be affected), there is no First Amendment shield to litigation.

[Id. at 52.]

For example, in McKelvey, the Court held that a seminary candidate, who alleged he was subjected to homosexual sexual harassment, could maintain a lawsuit seeking return of the tuition money he paid, because no church doctrine supported sexual imposition on clerical students. Id. at 54-55. The lawsuit was also aimed at defending the student against the church's demand that he repay tens of thousands of dollars in financial aid. Id. at 37. However, in upholding McKelvey's right to maintain his lawsuit, the Court emphasized that he was not seeking employment with the church, and could not be awarded that relief, consistent with the First Amendment. Id. at 56.

The Court thus carefully distinguished situations involving the actual employment of clergy persons

It is simply not correct to conclude that secular courts lack jurisdiction to hear any dispute between a ministerial-type plaintiff and his or her church. The critical factor in the application of the ministerial exception to a given cause of action must be that resolution of the claim requires an impermissible inquiry into the propriety of a decision of core ecclesiastical concern, a decision, in other words, where the dispute truly is religious. To be sure, where an ecclesiastically-based action clearly is present, such as the propriety of a church's choice concerning the hiring, termination, relocation, benefits, or tenure of a person whose function at the church concerns the propagation of its faith, the First Amendment shields the religious organization from suit. That is not the case here. No choice regarding McKelvey's ordination or employment was exercised by the Diocese.

[Id. at 54 (citations omitted).]

More recently, the Supreme Court of the United States reaffirmed those principles, in a case filed by a church school teacher who held the status of a minister in the church.

The First Amendment provides, in part, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." We have said that these two Clauses "often exert conflicting pressures," and that there can be "internal tension . . . between the Establishment Clause and the Free Exercise Clause[.]" Not so here. Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers.

[Hosanna-Tabor Evangelical Lutheran Church & Sch., supra, ___ U.S. at ___, 132 S. Ct. at 702, 181 L. Ed. 2d at 659 (citations omitted).]

In applying those principles to employment discrimination lawsuits, the Court held that there is "a ministerial exception" to such laws.

The members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.

[Id. at ___, 132 S. Ct. at 706, 181 L. Ed. 2d at 663.]

The Court also rejected the plaintiff's claim for money damages on the same basis

[Plaintiff] Perich no longer seeks reinstatement, having abandoned that relief before this Court. But that is immaterial. Perich continues to seek frontpay in lieu of reinstatement, backpay, compensatory and punitive damages, and attorney's fees. An award of such relief would operate as a penalty on the Church for terminating an unwanted minister, and would be no less prohibited by the First Amendment than an order overturning the termination. Such relief would depend on a determination that Hosanna-Tabor was wrong to have relieved Perich of her position, and it is precisely such a ruling that is barred by the ministerial exception.

[Id. at ___, 132 S. Ct. at 709, 181 L. Ed. 2d at 667 (citations omitted).]

The application of McKelvey and Hosanna-Tabor to this case leaves no doubt as to the correctness of the trial court's decision. Where, as here, a church's governing body determines that the church's pastor is spiritually disqualified from continuing to serve the congregation, the courts cannot interfere without trenching on the church's right of self-governance and its First Amendment right to choose its clergy. Plaintiff contends that he had an oral contract guaranteeing that his employment would be governed by the Church's by-laws in effect at the time he was hired and, later, at the time he agreed to remain as Senior Pastor. He thus asserts that his claim involves only secular principles of contract interpretation, or as he puts it, "the secular 'how'" of his termination. We cannot agree.

Deciding his case would require our courts to construe the Church's constitution and by-laws and thus to interfere in the Church's internal governance. Further, his complaint clearly sought reinstatement as Senior Pastor, reinstatement as a congregation member, and restoration to him of "the affection and confidence of" the congregation relief our courts cannot grant without running afoul of core First Amendment principles. Hosanna-Tabor also clearly bars his claim for money damages. Hosanna-Tabor, supra, ___, U.S. at ___, 132 S. Ct. at 709, 181 L. Ed. 2d at 667.

Finally, we agree with defendants that plaintiff's proposed amended complaint was properly dismissed on equitable grounds as well as constitutional principles. "The clean hands doctrine is 'an equitable principle which requires a denial of relief to a party who is himself guilty of inequitable conduct in reference to the matter in controversy.'" Hageman v. 28 Glen Park Assoc., L.L.C., 402 N.J. Super. 43, 48 (App. Div. 2008) (quoting Glasofer Motors v. Osterlund, Inc., 180 N.J. Super. 6, 13 (App. Div. 1981)). Plaintiff admits that he appointed the very Board members and Church officers whose actions he now challenges.

According to the complaint, he made the appointments to purportedly comply with the Consent Order, although that agreement required the appointment of an independent Board. The complaint also alleged that plaintiff appointed individuals he thought were his allies, in the hope that he would eventually become the minister of a new merged "megachurch." Instead, his appointees voted to terminate his employment on grounds of spiritual disqualification. Plaintiff then sought to challenge their decision by claiming that he had no authority to appoint them.

The trial judge did not abuse her discretion in equitably barring plaintiff from attempting to profit from his own alleged wrongdoing. See Hageman, supra, 402 N.J. Super. at 48-55 (discussing the unclean hands doctrine); see also Faustin v. Lewis, 85 N.J. 507, 511 (1981) (The clean hands doctrine "gives expression to the equitable principle that a court should not grant relief to one who is a wrongdoer with respect to the subject matter in suit."). Since plaintiff is equitably barred from challenging the authority of the Church Board and officers whom he appointed, his reliance on Mechanics National Bank of Newark v. H.C. Burnet Manufacturing Co., 32 N.J. Eq. 236 (Ch. 1880), a case generally discussing corporate governance, is misplaced.7

Plaintiff's additional appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 The July 30 order permitted plaintiff to file an amended complaint pleading one specific cause of action concerning the alleged improper appointment of the Church's Official Board and the Board's consequent lack of authority to terminate plaintiff's employment. Rather than simplifying and focusing his complaint, as the order clearly required, plaintiff sought to add a thirteenth count to the twelve counts the court had already dismissed with prejudice. In dismissing the amended complaint, the judge cited plaintiff's failure to comply with the July 30 order. She also concluded that the First Amendment barred the thirteenth count, and that the claim was barred by the doctrine of unclean hands because plaintiff had appointed the Board. We find no abuse of the trial judge's discretion in rejecting the amended complaint because it included issues that were beyond the scope of the July 30 order. Plaintiff's arguments on that procedural issue warrant no further discussion. R. 2:11-3(e)(1)(E).

2 In evaluating a motion to dismiss, the court may also consider exhibits attached to the complaint or copies of documents on which the complaint relies by reference. See Banco Popular N. Am. v. Gandi, 184 N.J. 161, 183 (2005).

3 The Consent Order was included in the record. Among other things, it recited that plaintiff and another individual caused the Church to spend $225,000 toward the purchase of a $450,000 yacht for their personal use. The Consent Order required plaintiff to repay $50,000 to the Church in connection with the yacht purchase.

4 Article V of the 2009 by-laws also authorized the Official Board to select the corporate officers.

5 The order recited that the trial court had earlier dismissed plaintiff's complaint for the reasons stated on the record and for the reasons stated in defendants' Memorandum of Law in Support of the Motion to Dismiss.

6 In addition, plaintiff has not explained how any type or amount of discovery could have salvaged his case.

7 As illustrated in Part I of this opinion, plaintiff's complaint was rife with admissions of self-dealing, the inappropriateness of which he apparently failed to appreciate. While we cannot adjudicate the issue of his spiritual qualification to serve as Senior Pastor, we note that the complaint does not allege any disagreement among the Church's membership over plaintiff's termination or any dispute within the Church over the Board's authority to terminate his employment.