Thomas Swonke and Christopher Goodrich v. First Colony Community Service Association, Inc. ( 2010 )

Motions for Rehearing Overruled and Supplemental Memorandum Majority Opinion and Memorandum Concurring Opinion on Rehearing filed on September 16, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00019-CV

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Thomas Swonke and Christopher Goodrich, Appellants

V.

First Colony Community Services Association, Inc., Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 07-CV-160602

MEMORANDUM CONCURRING OPINION ON REHEARING

I agree that the Motions for Rehearing should be overruled.  However, upon consideration of the Motions, I have concluded that our analysis in our original opinion is incorrect as it relates to the email notice of the Nominating Committee. 

It appears to me that the following three By-Law provisions apply:

Article III, Section 5:

[N]ominations for election to the Board of Directors shall be made by a Nominating Committee.  The Nominating Committee shall consist of a Chairman, who shall be a member of the Board of Directors, and two (2) or more Members of the Association.  The Nominating Committee shall be appointed by the Board of Directors . . . .

Article V, Section 1:

Committees are hereby authorized to perform such tasks and to serve for such periods as may be designated by a resolution adopted by a majority of the Directors present at a meeting at which a quorum is present.  Such Committees shall perform such duties and have such powers as may be provided in the resolution creating same.  Each Committee shall be composed and shall operate in accordance with the terms of the resolution of the Board of Directors designating the committee or with rules adopted by the Board of Directors.

Article VI, Section 5:

Unless otherwise provided in these By-Laws, all notices, demands, bills, statements, or other communications made or given under these By-Laws shall be in writing and shall be deemed to have been duly given if delivered personally or if sent by U.S. mail, first class postage prepaid, or by facsimile.

I note that, in my opinion, Article III, Section 11 of the By-laws does not apply because it clearly deals with Special Meetings of the Board of Directors.  The Nominating Committee may be composed of two or more non-Board Members of the Association, and therefore its meetings are not “Board of Director meetings.”

In this case, the Nominating Committee was appointed by the Board of Directors under the By-laws, a meeting was held by the Nominating Committee to perform the duties set out in the By-laws, and a notice of a committee meeting was sent out.  The issue is whether the notice was legally sufficient.  The Summary Judgment record does not establish, as a matter of law, whether the notice was sufficient for the following reasons:

1.  We do not have in the Summary Judgment record a copy of the Resolution of the Board of Directors that created the Nominations Committee. It is possible that the Resolution set out rules for the Committee, including Notice rules.  If the Resolution does NOT address Notice rules, then the general Notice provisions in the By-laws under Article VI, Section 5, would apply.

2.  Article VI, Section 5 requires notices to be in writing.  In the present case an email notice was sent.  In my opinion, an email notice is a “written” notice.  A written notice is “deemed to have been duly given if delivered personally or if sent by U.S. mail, first class postage prepaid, or by facsimile.”  In the present case, we cannot “deem” receipt of the notice.  Receipt of the email notice must be proven.  Appellant Goodrich admitted that he received the email notice of the meeting.  However, there is no evidence of receipt of the notice by the other members of the Nominating Committee who did not attend the meeting.

Accordingly, for these reasons, rather than the reasons stated in the Majority Opinion, neither party is entitled to Summary Judgment on the Notice issue.  I agree with the Majority Opinion in the remainder of its analyses.  Therefore, I concur in the Overruling of the Motions for Rehearing.           

                                                                        /s/        Margaret Garner Mirabal

                                                                                    Senior Justice[1]

Panel consists of Chief Justice Hedges and Justice Anderson and Senior Justice Mirabal. (Hedges, CJ. Majority.)

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[1] Senior Justice Margaret Garner Mirabal sitting by assignment.