

 
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
___________________
 
NO. 14-09-00019-CV
___________________
 
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
 

 
 
SUPPLEMENTAL MEMORANDUM MAJORITY OPINION
ON REHEARING
We deny the
motions for rehearing.  The purpose of this supplemental opinion is to briefly
respond to concerns raised in the concurring opinion on rehearing.
The concurrence first notes
that the record before us does not contain a copy of any board of directors’ resolution
creating the nominating committee.  There is indeed no evidence in the summary
judgment record that there exists any board resolution setting out rules for
the nominating committee.  In its motion for rehearing, the
Association cites specifically to Article V, Section I of the bylaws wherein it
provides that the board may adopt resolutions creating committees that shall
have duties and powers in accordance with the respective resolution and “shall
operate in accordance with the terms of the resolution.”  The nominating
committee, however, was not originally created by the board under the authority
of Article V.  Instead, it was expressly created by Article III of the bylaws,
which itself explains the nominating committee’s basic duties, powers, and
procedures.  It therefore appears that the nominating committee was not
intended to be governed by board resolution under Article V as the Association
and the concurrence suggest.  Furthermore, the
Association raises the prospect that there may be a resolution governing notice
for the first time in its appellate motion for rehearing.  This argument
was therefore waived.  AVCO Corp., Textron Lycoming Reciprocating Engine
Div. of AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 676 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied).
Next, the concurrence
suggests that emailed notice was proper notice of the nominating committee
meeting.  This issue was not raised in the Association’s motion and is
discussed and resolved in the original opinion.
The motions for rehearing
are denied.
                                                                                    
                                                                        /s/        Adele
Hedges
                                                                                    Chief
Justice
 
 
Panel consists of Chief
Justice Hedges, Justice Anderson, and Senior Justice Mirabal.[1] (Mirabal, J. concurring.)




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


