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LLC v. Rutherford Electric Membership Corp.

Court of Appeals of North Carolina

May 19, 2015

130 OF CHATHAM, LLC, as a member of Rutherford Electric Membership Corporation, Plaintiff,
v.
RUTHERFORD ELECTRIC MEMBERSHIP CORPORATION, Defendant

Heard in the Court of Appeals March 4, 2015

Rutherford County, No. 14 CVS 711.

DISMISSED.

Roberts & Stevens, P.A., by Ann-Patton Hornthal and William Clarke, for Plaintiff.

Parker Poe Adams & Bernstein, LLP, by Michael G. Adams, Benjamin Sullivan, and Morgan H. Rogers, for Defendant.

Judges HUNTER, JR., and TYSON concur.

OPINION

Page 921

Appeal by Defendant from orders entered 28 July 2014 by Judge Alan Z. Thornburg in Rutherford County Superior Court.

Page 922

STEPHENS, Judge.

Defendant Rutherford Electric Membership Corporation (" Rutherford" ) appeals from the trial court's order allowing Plaintiff 130 of Chatham (" Chatham" ) to inspect and copy its membership list and other corporate records. After careful consideration, we hold that because it is moot, this appeal must be dismissed.

Facts and Procedural History

Rutherford is an electric membership corporation (" EMC" ) organized under Chapter 117 of our General Statutes that owns and operates an electric distribution system for members in its service area, which covers all or portions of 10 counties in western North Carolina. Chatham owns over 18,000 acres of property in Rutherford's service area, is a member of Rutherford in good standing, and receives electricity from Rutherford at two accounts in McDowell and Burke counties. These parties have been feuding for several years, with their dispute arising from Rutherford's efforts to build a power line across an undeveloped tract of Chatham's property that separates two of Rutherford's electrical substations. When Chatham refused to sell Rutherford an easement, Rutherford initiated condemnation proceedings pursuant to Chapter 40A of our General Statutes. See Rutherford Elec. Membership Corp. v. 130 of Chatham, LLC, __ N.C.App. __, 763 S.E.2d 296 (2014), appeal dismissed and disc. review denied, ___ N.C. ___, 769 S.E.2d 192 (2015). The present litigation arises from Chatham's request, as a member of Rutherford acting pursuant to the North Carolina Nonprofit Act and sections 55A-16-02 and -04 of our General Statutes, to inspect Rutherford's membership list and other corporate records in order to participate in the nomination and election of directors to Rutherford's board of directors.

On 12 May 2014, Chatham submitted a written request to inspect and copy Rutherford's membership list and other corporate records pursuant to N.C. Gen. Stat. ยง 55A-16-02. On 15 May 2014, Rutherford's counsel notified Chatham that its request would be denied unless it utilized one of Rutherford's " Member Information Request" forms, and so on 16 May 2014, Chatham resubmitted its request using the required form. On 20 June 2014, Rutherford provided a 363-page response to Chatham's request, 238 pages of which consisted of old newsletters mailed to Rutherford's members. This response did not include Rutherford's membership list, omitted ...


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