Bobby MacBryan Green v. Jodi Jones

IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs April 3, 2012

BOBBY MacBRYAN GREEN v. JODI JONES, ET. AL.

Appeal from the Chancery Court for Washington County

No. 41049 Hon. G. Richard Johnson, Chancellor

No. E2011-02587-COA-R3-CV-FILED-JULY 10, 2012

A neighborhood association president, fearing that members conspired to improperly oust

him at an upcoming meeting, filed suit, requesting declaratory relief regarding the proper

procedure for removal of a president. Prior to a hearing, the members voted to remove him

from office and filed a motion to dismiss, alleging that the complaint failed to state a claim

upon which relief could be granted. The court dismissed the complaint and denied a

subsequent motion to alter or amend its judgment. The president appeals. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Affirmed; Case Remanded

J OHN W. M CC LARTY, J., delivered the opinion of the court, in which H ERSCHEL P. F RANKS,

P.J., and C HARLES D. S USANO, J R., J., joined.

Bobby MacBryan Green, M.D., Johnson City, Tennessee, appellant, pro se.

Howell H. Sherrod, Jr.,1 Johnson City, Tennessee, for the appellees, Jodi Jones, Betty Ann

Polaha, and Mary Lee Jondahl.

OPINION

I. BACKGROUND

The Southside Neighborhood Association (“SNO”) is an unincorporated association

located in Johnson City, Tennessee, that is comprised of individuals living in the general

1

Mr. Sherrod, a licensed attorney, was originally a party to this action but was removed by agreement.

Southside area who are supportive of the association’s goals. Bobby MacBryan Green, M.D.

(“President”) attained the position of president of SNO in October 2009 and was elected to

a two-year term as president of the executive board in November 2010. Likewise, Jodi Jones

(“Vice President”), Betty Ann Polaha (“Secretary”), and Mary Lee Jondahl (“Treasurer”)

were all members of the executive board. Pursuant to its bylaws, SNO held regular elections

for its executive board positions but allowed removal of a board member or committee chair

in specific circumstances. The bylaws provided that “all questions not specified” in the

bylaws were governed by Robert’s Rules of Order, Revised (“RROR”).

On June 22, 2011, Vice President called a special meeting for Sunday, June 26 in

order to determine whether President should be discharged from his elected position on the

executive board. She explained that she was unable to secure a date on which all members

could be present and advised the members that they could still participate through a live

conference call or submit their votes by notarized letter.

The next day, President filed a complaint in chancery court, alleging that Vice

President, Secretary, and Treasurer (collectively “the Board”) had “demonstrated an intent

to violate [his] rights by precipitately convening the [e]xecutive [b]oard.” He asserted that

Vice President set the meeting on a date that he and other members who were supportive of

him could not attend. He complained that the call for a meeting did not “suggest[] any

intention to conduct a trial based upon due process” and that the suggested procedure for

removal was contrary to RROR. President requested relief, asking the court to declare:

(a) the names of the current members of the [e]xecutive [b]oard of [SNO];

(b) the limits of the power of the [e]xecutive [b]oard of [SNO];

(c) the appropriate procedure for ouster of [President] or any officer; and

(d) the appointment of an impartial [Rule 31 mediator] to supervise all stages

of any effort to remove [President] from office.

President also filed a petition for a restraining order, asking the court to forbid any meeting

for the purpose of removing him from office for any reason other than his incapacitation, any

effort to remove him from office except in accordance with RROR, any meeting leading to

his removal without the supervision of a mediator, and any attempt to prevent him from

executing his duties and lawfully prescribed powers.2

2

The restraining order was denied by the Honorable Thomas J. Seeley, Judge sitting by interchange.

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Following the scheduled meeting at which the President was discharged from his

position, the Board responded to the complaint by asserting that the request for relief was

inappropriate and unavailable because President had been removed from office “due to his

inappropriate and disruptive conduct for approximately one year.” The Board also filed a

motion to dismiss the complaint “for failure to state a claim on which relief can be granted”

with attached affidavits, providing that President was removed

on June 26, 2011 by action of the [e]xecutive [c]ommittee properly convened

after proper notice with the appropriate number of attendees in their official

capacity as members of the [e]xecutive [c]ommittee by a vote in excess of

seventy-five (75%) in favor of removing him.

In response, President filed a motion for supplemental pleadings and a motion for a

temporary injunction, requesting his reestablishment as President. The Board filed an

amended answer and counterclaim, asserting that President’s continued harassment of SNO

members and officers was “intentionally calculated to harass, embarrass, and intimidate” and

that they were entitled to compensatory and punitive damages.

Following a hearing, the court dismissed the complaint against the Board, finding that

President had been properly removed as president of SNO. The court also attached a list of

items that had been retained by President and directed him to return those items to SNO.

President filed a motion to alter or amend, asserting, among other claims, that the court

erroneously considered evidence outside of the complaint in granting the motion to dismiss.3

He asserted that because the court had considered matters outside the pleading, namely the

affidavits and the Board’s answer to the complaint, the court should have treated the motion

to dismiss as a motion for summary judgment, allowing him to conduct discovery. He also

asserted that he had set forth a valid cause of action and that the court’s grant of the motion

prevented him from presenting “crucial facts” that occurred during the pendency of the

hearing. He attached a statement of these facts in the event that future proceedings for

summary judgment were needed. The court denied President’s motion to alter or amend by

written order and in open court, by stating

[SNO is] a nonprofit association composed of residents of the south side of

Johnson City. And . . . for whatever reason, [SNO] did not want [President]

as its [p]resident and it did not want him as a member. Now that’s between

[SNO] and [President]. There’s no doubt that a voluntary organization has the

right to say who can belong and who cannot belong.

3

Approximately one week after the motion to alter or amend was filed, SNO revoked President’s membership

and returned his membership dues.

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***

[President] complains about the result of the hearing [on the motion to dismiss]

but he did not attend the hearing. He had a very able, qualified, experienced

lawyer that appeared for him and who did, I’m sure, as good a job as he could

possibly do. Today, [President] doesn’t have any new evidence in support of

the [m]otion. He doesn’t cite any change in the law since the [m]otion. The

[c]ourt finds that there’s been no injustice here that needs to be corrected, that

[President], in spite of his protest, was given a due process hearing, was given

a fair hearing with all the notices and all the parties present. The [c]ourt, most

respectfully, denies the [m]otion to [a]lter or [a]mend.

II. ISSUES

We consolidate and restate the issues raised on appeal as follows:

A. Whether the court erred in dismissing President’s complaint.

B. Whether the court erred in denying President’s motion to alter or amend the

court’s order dismissing the case.

III. STANDARD OF REVIEW

On appeal, the factual findings of the trial court are accorded a presumption of

correctness and will not be overturned unless the evidence preponderates against them. See

Tenn. R. App. P. 13(d). The trial court’s conclusions of law are subject to a de novo review

with no presumption of correctness. Blackburn v. Blackburn, 270 S.W.3d 42, 47 (Tenn.

2008); Union Carbide Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993). Mixed

questions of law and fact are reviewed de novo with no presumption of correctness; however,

appellate courts have “great latitude to determine whether findings as to mixed questions of

fact and law made by the trial court are sustained by probative evidence on appeal.” Aaron

v. Aaron, 909 S.W.2d 408, 410 (Tenn. 1995).

IV. DISCUSSION

A.

A motion to dismiss for failure to state a claim upon which relief can be granted

“challenges the legal sufficiency of the complaint, not the strength of the plaintiff’s proof[;]

therefore, matters outside the pleadings should not be considered in deciding whether to

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grant the motion.” Trau-Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696

(Tenn. 2002) (emphasis added). In this case, the trial court considered the Board’s affidavits,

“evidence introduced into open court, the argument of counsel, the stipulation of the parties”

and the entire record. When a court considers matters outside the pleadings, a motion to

dismiss for failure to state a claim upon which relief can be granted “shall be treated as one

for summary judgment.” Tenn. R. Civ. P. 12.02. Accordingly, we will review the dismissal

of the case “using the standards applicable to summary judgment.” King v. Betts, 354

S.W.3d 691, 711 (Tenn. 2011); see also Chambers v. First Volunteer Bank of Tennessee, No.

E2011-00020-COA-R3-CV, 2011 WL 3241836, at *3 (Tenn. Ct. App. July 29, 2011)

(upholding a trial court’s decision to dismiss the case after reviewing the dismissal pursuant

to summary judgment standards).

Summary judgment is appropriate where: (1) there is no genuine issue with regard to

the material facts relevant to the claim or defense contained in the motion and (2) the moving

party is entitled to judgment as a matter of law on the undisputed facts. Tenn. R. Civ. P.

56.04. A properly supported motion for summary judgment “must either (1) affirmatively

negate an essential element of the nonmoving party’s claim; or (2) show that the nonmoving

party cannot prove an essential element of the claim at trial.” Hannan v. Alltel Publ'g Co.,

270 S.W.3d 1, 9 (Tenn. 2008). When the moving party has made a properly supported

motion, the “burden of production then shifts to the nonmoving party to show that a genuine

issue of material fact exists.” Id. at 5; see Robinson v. Omer, 952 S.W.2d 423, 426 (Tenn.

1997); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993). The nonmoving party may not

simply rest upon the pleadings but must offer proof by affidavits or other discovery materials

to show that there is a genuine issue for trial. Tenn. R. Civ. P. 56.06. If the nonmoving party

“does not so respond, summary judgment, if appropriate, shall be entered.” Tenn. R. Civ.

P. 56.06.

On appeal, this court reviews a trial court’s grant of summary judgment de novo with

no presumption of correctness. See City of Tullahoma v. Bedford County, 938 S.W.2d 408,

412 (Tenn. 1997). In reviewing the trial court’s decision, we must view all of the evidence

in the light most favorable to the nonmoving party and resolve all factual inferences in the

nonmoving party’s favor. Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999); Muhlheim

v. Knox. Cnty. Bd. of Educ., 2 S.W.3d 927, 929 (Tenn. 1999). If the undisputed facts support

only one conclusion, then the court’s summary judgment will be upheld because the moving

party was entitled to judgment as a matter of law. See White v. Lawrence, 975 S.W.2d 525,

529 (Tenn. 1998); McCall v. Wilder, 913 S.W.2d 150, 153 (Tenn. 1995).

We acknowledge that this case presents a “procedural anomaly of sorts in that we

must treat the [Board’s] motion to dismiss as a motion to for summary judgment, yet no

statement of undisputed material facts” exists. Chambers, 2011 WL 3241836, at *5.

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Additionally, President was not given the opportunity to offer additional proof by affidavits

or other discovery materials to show that there was a genuine issue for trial. Tenn. R. Civ.

P. 56.06. However, we do not believe that these alleged shortcomings of the record preclude

review of the dismissal of this case when “in absence of fraud, lack of jurisdiction, or the

invasion of property rights, courts should not interfere with the internal affairs of voluntary

associations.” Holder v. Celsor, 914 S.W.2d 496, 500 (Tenn. Ct. App. 1995); see Robertson

v. Walker, 62 Tenn. 316 (Tenn. 1874) (holding that the court could not restore a person’s

membership to a voluntary charitable association). When an association has adopted its own

bylaws, courts will not interfere to control the enforcement of them “[w]hen such by-laws

infringe no public policy or rule of law and are not unreasonable.” Tennessee Secondary Sch.

Athletic Ass’n v. Cox, 425 S.W.2d 597, 601 (Tenn. 1968) (internal citation and quotation

omitted). Thus, “associations will be left to enforce their rules and regulations in the manner

they have adopted for their own government and methods of discipline.” Id. (internal citation

and quotation omitted).

In this case, the bylaws allowed any member in good standing to call a special meeting

and provided specific rules for the executive board to follow when attempting to remove an

officer or committee chair from his or her position on the executive board. Specifically, the

bylaws provided,

The Executive Board shall have the authority and the responsibility to

discharge by a three-fourth (3/4) vote any officer or committee chair who

becomes incapacitated or otherwise fails to carry out the responsibilities of the

office. In such event, the Executive Board shall appoint a successor to serve

until the next installation of officers.

(Emphasis added). The bylaws further provided that “a vacancy in office after installation

shall be filled by the [e]xecutive [b]oard, except as stated for the President which would be

filled by the Vice-President.” Thus, the Board did not need to look to RROR in attempting

to discharge President from his position because the bylaws provided the proper procedure

for discharge of an officer or committee chair. Here, President was removed after a special

meeting was called and a vote was held pursuant to the bylaws, which are not unreasonable

and do not violate public policy or a rule of law.

Citing Nelson v. Sneed, 83 S.W. 786 (Tenn. 1904), President claims that he had a

property interest in his position as president of SNO and that the Board’s interference with

that property interest was improper. While President presents an interesting argument, his

claim is simply without merit. The Court’s decision in Nelson related to an election contest

for a circuit court judgeship. President’s contested removal from an executive board position

in a voluntary, unincorporated association is easily distinguishable from judicial elections

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that are governed by the Tennessee Code. Tenn. Code Ann. § 17-1-103; see also Tenn. Code

Ann. § 2-17-101 (providing that election contests are filed in chancery court). President’s

position was unpaid and did not require anything from him other than his assistance with the

oversight of the organization. Accordingly, we decline to hold that President had a property

interest in his position on the executive board of a voluntary, unincorporated association.

Likewise, President’s assertion that his signing of the bylaws created a “reciprocal

contract” between himself and SNO is also without merit. He alleges that each party was

charged with the reciprocal duty of good faith and fair dealing, which was violated by the

Board’s disregard of the bylaws and RROR. As previously stated, the Board did not

disregard the bylaws. Additionally, a contract is “[a]n agreement between two or more

parties creating obligations that are enforceable or otherwise recognizable at law.” Black’s

Law Dictionary (9th ed. 2009). The bylaws did not create any obligations between its

members and the association. While President’s voluntary but elected position required his

agreement to oversee the association, his position did not entitle him to any corresponding

obligation from SNO.

With all of these considerations in mind and after viewing the evidence and all

reasonable inferences in the light most favorable to President, we conclude that there were

no genuine issues of material fact and that the Board was entitled to judgment as a matter of

law because President failed to assert a claim upon which relief could be granted.

Accordingly, we further conclude that the trial court did not err in granting the Board’s

motion to dismiss.

B.

A party may file a motion to alter or amend a judgment within 30 days after the entry

of the judgment. Tenn. R. Civ. P. 59.04. This court reviews a trial court’s decision to deny

a motion to alter or amend a judgment under an abuse of discretion standard. Stovall v.

Clarke, 113 S.W.3d 715, 721 (Tenn. 2003). “The purpose of a Rule 59.04 motion to alter

or amend a judgment is to provide the trial court with an opportunity to correct errors before

the judgment becomes final.” In re M.L.D., 182 S.W.3d 890, 895 (Tenn. Ct. App. 2005).

These motions should “be granted when the controlling law changes before the judgment

becomes final; when previously unavailable evidence becomes available; or to correct a clear

error of law or to prevent injustice.” Id. These motions “should not be used to present new,

previously untried or unasserted theories or legal arguments.” Id. If new evidence is raised

in a motion to alter or amend a grant of summary judgment, the court should consider “the

moving party’s effort to obtain the evidence in responding to the summary judgment; the

importance of the new evidence to the moving party’s case; the moving party’s explanation

for failing to offer the evidence in responding to the summary judgment; the unfair prejudice

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to the non-moving party; and any other relevant consideration.” Stovall, 113 S.W.3d at 721

(citing Harris v. Chern, 33 S.W.3d 741, 744 (Tenn. 2000)).

In support of his motion to alter or amend, President asserted that the court’s order of

dismissal prevented him from presenting additional “crucial facts” in support of his case and

that his facts supporting his claim were never refuted. The facts submitted by President are

of no importance to this case given our conclusion that President failed to assert an actual

claim upon which relief could be granted. Accordingly, we further conclude that the court

did not abuse its discretion in denying President’s motion to alter or amend the order

dismissing his case. President raised a myriad of other issues relating to the dismissal of his

complaint and the alleged injustice of the proceedings resulting in the erroneous dismissal

of his complaint. Having concluded that the court did not err in dismissing the complaint or

in denying the motion to alter or amend, we conclude that these issues lack merit. President

also raised an issue regarding the validity of the Board’s counterclaim. This issue is not

properly before this court because this appeal relates to the dismissal of the complaint, not

the validity of the counterclaim. Upon remand, the case may proceed on the Board’s

counterclaim, allowing President to defend against that claim in any manner consistent with

the Tennessee Rules of Civil Procedure.

V. CONCLUSION

The judgment of the trial court is affirmed, and the case is remanded for such further

proceedings as may be necessary. Costs of the appeal are taxed to the appellant, Bobby

MacBryan Green.

______________________________________

JOHN W. McCLARTY, JUDGE

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