WILLIAM P. EMERSON, JR., Plaintiff,
CAPE FEAR COUNTRY CLUB, INCORPORATED, Defendant.
in the Court of Appeals 5 March 2018.
by Plaintiff from order entered 5 June 2017 by Judge Andrew
Heath in New Hanover County No. 16-CVS-1333 Superior Court.
Crouch, Keeter, Behm & Sayed, LLP, by Daniel Lee Brawley
and Auley M. Crouch, III, for plaintiff-appellant.
Cranfill, Sumner & Hartzog, LLP, by Benton L. Toups and
Elizabeth C. King, for defendant-appellee.
G.S. § 55A-6-31(a) calls for nonprofit corporations to
act "in a manner that is fair and reasonable and . . .
in good faith" when they terminate or suspend a
membership. N.C. G.S. § 55A-6-31(a) (2017). However, it
does not require a country club's board of directors, in
all situations, to provide a member with prior notice or an
opportunity to be heard regarding the termination of a
William P. Emerson, Jr. ("Emerson"), appeals from
the trial court's order granting summary judgment in
favor of Defendant, Cape Fear Country Club, Inc.
("Club"), a nonprofit corporation, on all of
Emerson's three claims. In his Complaint, filed 21 April
2016, Emerson sought declaratory judgments as to (1)
Emerson's membership status in the Club and (2) whether
the Club could, in alleged compliance with N.C. G.S. §
55A-6-31(a), conduct a curative hearing after Emerson's
membership had been terminated. Emerson's third claim for
relief sought compensatory and punitive damages for his
hypothetical expenses in joining a comparable country club
and for the Club's purportedly wrongful and malicious
termination of his membership.
we address (1) the statutory requirement of N.C. G.S. §
55A-6-31(a), (2) Emerson's failure to mitigate his
alleged damages, and (3) the mootness of Emerson's
remaining claims. While we hold that the statute does not
require prior notice and a participatory hearing in all
situations, even if notice and a hearing are required here,
Emerson failed to mitigate his alleged damages resulting from
the Club's alleged violation of N.C. G.S. §
55A-6-31(a). Thus, Emerson is barred from recovering the
compensatory and punitive damages sought in his Complaint.
Due to our resolution of Emerson's third claim for
relief, his first two claims under the Declaratory Judgment
Act are moot, and we decline to address them. Accordingly, we
affirm the trial court's grant of summary judgment in
favor of the Club on each of Emerson's claims.
January 2016, Emerson, who had been a member of the Club for
approximately 30 years, had a disagreement with an employee
in the golf shop. The employee reported the incident to the
Club's General Manager, Mary Geiss, who brought the
matter to the attention of the Executive Committee by email
on 2 January 2016. This was not Emerson's first act of
misbehavior, and Club President Buck Beam and other members
of the Executive Committee met on 5 January 2016 to discuss
the incident. The Executive Committee then called a special
meeting of the Board of Directors ("Board"), which
met and voted on 7 January 2016 to terminate Emerson's
uncontested that Emerson was aware neither of the Executive
Committee's nor the Board's deliberations until 8
January 2016, when the Club President and two other Board
members called Emerson to advise him of his termination.
Emerson also received a letter from the Club President dated
8 January 2016 informing him of his termination. The letter
provided the grounds for termination, stating that it was
"in response to [Emerson's] actions on club property
on January 1, 2016 and [Emerson's] cumulative
disciplinary history while a member of Cape Fear Country
Club." Emerson's disciplinary history at the Club
included one incident on or about 27 February 2005 and
another incident on 29 April 2007.
February 2005 incident, Emerson got in an argument with
another Club member, which resulted in damage to Club
property. Emerson also threatened a Club employee's job.
In response to the 2005 incident, Emerson was suspended for
thirty days, placed on a twelve-month probation period, given
a twelve-month alcohol prohibition, fined $1, 500, and
required to replace the damaged property and apologize to the
employees involved. Emerson appealed and was given an
opportunity to appear before the Board. The Club eliminated
the twelve-month probationary period, the twelve-month
alcohol prohibition, and the $1, 500 fine as conditions of
Emerson's punishment. Although the record reflects that
Emerson came on to Club premises during his suspension, thus
violating its terms, his written apology of 3 June 2005
prompted the Club's then-President to lift Emerson's
April 2007 incident, Emerson had some sort of dispute with
another Club member in the Card Room after a disagreement
over a golf bet. As a result, Emerson's membership was
suspended for six months. Emerson's initial readmittance
was unsuccessful after Emerson's "address at the
Board of Directors meeting, " and the Board decided to
extend Emerson's suspension for an additional six months.
The Board received letters on Emerson's behalf from other
Club members and decided to invite Emerson back to his
membership approximately two months after imposing the
additional six-month suspension.
instant matter, after notifying Emerson of the termination of
his membership by letter dated 8 January 2016, the Club
President sent Emerson another letter dated 5 February 2016.
This subsequent letter advised Emerson that the Board
"[was] prepared to provide [Emerson] an opportunity to
speak on [his] behalf concerning the termination of [his]
membership." Emerson acknowledged receipt by letter on
12 February 2016 but declined to attend the proposed 15
February 2016 meeting.
filed his Complaint on 21 April 2016. After discovery and
depositions, the trial court disposed of Emerson's claims
by entering summary judgment in favor of the Club. Emerson
standard of review for summary judgment is de novo."
Forbis v. Neal, 361 N.C. 519, 524, 649 S.E.2d 382,
385 (2007). Summary judgment is proper when "the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact
and that any party is entitled to a judgment as a matter of
law." N.C. G.S. § 1A-1, Rule 56 (2017).
Additionally, we draw all inferences of fact in favor of the
non-moving party. Forbis, 361 N.C. at 524, 649
S.E.2d at 385.
Complaint raises questions about the procedural requirement
of N.C. G.S. § 55A-6-31, which governs the termination,
expulsion, and suspension of an individual's membership
in a nonprofit corporation.
(b) Any proceeding challenging an expulsion, suspension, or
termination shall be commenced within one year after the
member receives notice of the expulsion, suspension, or
Complaint alleges various deficiencies with the Board's
termination, including: the failure to notify Emerson of the
7 January 2016 meeting, the lack of opportunity for Emerson
to appear, hear, or present evidence at the meeting, and the
alleged failure by the Board to hear from witnesses against
Emerson at the meeting.
only precedent interpreting the requirement of N.C. G.S.
§ 55A-6-31(a) has involved First Amendment issues not
argued here.See Tubiolo v. Abundant LifeChurch, Inc., 167 N.C.App. 324, 330, 605 S.E.2d 161,
165 (2004) ("A church's criteria for membership and
the manner in which membership is terminated are core
ecclesiastical matters protected by the First and Fourteenth
Amendments of the United States Constitution and section 13
of Article I of the Constitution of the State of North
Carolina."). Because this case does not implicate core
ecclesiastical matters and no other First Amendment ...