                     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

                                              -6-
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

                                             -7-
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




                                              -8-
