              IN THE COURT OF APPEALS OF NORTH CAROLINA

                                   No. COA17-1149

                                  Filed: 5 June 2018

New Hanover County, No. 16-CVS-1333

WILLIAM P. EMERSON, JR., Plaintiff,

             v.

CAPE FEAR COUNTRY CLUB, INCORPORATED, Defendant.


      Appeal by Plaintiff from order entered 5 June 2017 by Judge Andrew Heath in

New Hanover County Superior Court. Heard in the Court of Appeals 5 March 2018.


      Block, 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.


      MURPHY, Judge.


      N.C.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 membership.

      Plaintiff, 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 V. CAPE FEAR COUNTRY CLUB, INC.

                                   Opinion of the Court



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.

      Below, 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.

                                  BACKGROUND




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        On 1 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.1 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 membership.

        It is 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



1 The nature and content of the 1 January 2016 incident are somewhat in dispute. In his affidavit, the
Club President relayed the contents of an email from the Club Manager, who wrote that Emerson used
expletives in his conversations with Club employees and in front of Club guests during the 1 January
2016 exchange and declared, “[T]his is war,” to one of the Club employees. In his deposition testimony,
Emerson claimed that he was not shouting or cursing during the exchange and disagreed with one
Club employee’s characterization of the exchange between Emerson and the employee. Later in his
deposition, Emerson did not object to another witness’s description of the incident as a “profanity-laced
tirade” by Emerson.

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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.

      In the 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 suspension.

      In the 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




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                                  Opinion of the Court



and decided to invite Emerson back to his membership approximately two months

after imposing the additional six-month suspension.

      In the 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.

      Emerson 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 timely appealed.

                                    ANALYSIS

      “The 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.



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                       EMERSON V. CAPE FEAR COUNTRY CLUB, INC.

                                       Opinion of the Court



       Emerson’s 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.

       N.C.G.S. § 55A-6-31 states:

               (a) No member of a corporation may be expelled or
                   suspended, and no membership may be terminated or
                   suspended, except in a manner that is fair and
                   reasonable and is carried out in good faith.

               (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 termination.

               (c) A member who has been expelled or suspended may be
                   liable to the corporation for dues, assessments, or fees
                   as a result of obligations incurred or commitments
                   made by the member prior to expulsion or suspension.

Emerson’s 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.

       Our only precedent interpreting the requirement of N.C.G.S. § 55A-6-31(a) has

involved First Amendment issues not argued here.2 See Tubiolo v. Abundant Life

Church, Inc., 167 N.C. App. 324, 330, 605 S.E.2d 161, 165 (2004) (“A church’s criteria


2Although our opinion in Johnson v. Antioch United Holy Church, Inc., 214 N.C. App. 507, 509, 512-
13, 714 S.E.2d 806, 809, 811 (2011) cited N.C.G.S. § 55A-6-31, we did not interpret the “fair and
reasonable and . . . good faith” requirement of the statute in that case.

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                                   Opinion of the Court



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 arguments are before us, we proceed to consider

Emerson’s arguments regarding the procedural requirement of N.C.G.S. § 55A-6-

31(a).

                     A. Compensatory and Punitive Damages

         To determine whether N.C.G.S. § 55A-6-31 includes participatory rights—the

purported violation of which forms the basis of Emerson’s claim for compensatory and

punitive damages—we begin with the text of the statute. See Elec. Supply Co. of

Durham v. Swain Elec. Co., 328 N.C. 651, 656, 403 S.E.2d 291, 294 (1991)

(“Legislative purpose is first ascertained from the plain words of the statute.”). The

terms “fair and reasonable and . . . good faith” do not have a statutory definition, so

it is useful to look to the enactment of the statute to discover legislative intent. Our

Supreme Court has interpreted legislative intent based on the similarity between

model legislation submitted to the General Assembly and the statutory provisions

ultimately adopted. See Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 51-52, 56,

213 S.E.2d 563, 565-66, 568-69 (1975) (considering the applicability of N.C.G.S. §




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                                 Opinion of the Court



31A-3(3), in light of the Model Act upon which it was based, to a person convicted of

involuntary manslaughter).

      The General Assembly enacted the first version of the North Carolina

Nonprofit Corporation Act in 1955 (“1955 Act”). See 1955 N.C. Sess. Laws 1239

(amended 1993). The 1955 Act borrowed many provisions from the A.B.A. Model

Nonprofit Corporation Act (“Model Act”), which had been created in 1952. See Comm.

on Corp. Laws of the Section of Corp., Banking, and Bus. Law of the A.B.A., Model

Non-Profit Corporation Act (1952). The early versions of the Model Act and the 1955

Act lacked provisions describing procedures for member expulsion or termination.

See 1955 N.C. Sess. Laws 1250-52 (defining membership and quorum, describing

procedures to protect property rights of expelled members, and providing for

meetings, notice of meetings, and voting); Comm. on Corp. Laws of the Section of

Corp., Banking, and Bus. Law of the A.B.A, supra, at 8-11 (providing for membership,

meetings, notice of meetings, voting, and quorum).

      Both the 1955 Act and the Model Act have been amended over the years. The

A.B.A. adopted the Revised Model Nonprofit Corporation Act in 1987 (“Revised Model

Act”). See Subcomm. on the Model Nonprofit Corp. Law of the Bus. Law Section,

A.B.A., Revised Model Nonprofit Corporation Act (1988). The General Assembly then

amended the 1955 Act in 1993, which added many new provisions and re-codified the




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North Carolina Nonprofit Corporation Act (“1993 Act”) to mimic the Revised Model

Act in many ways. See 1993 N.C. Sess. Laws 1334.

      For example, Section 6.20 of the Revised Model Act states:

            (a) A member may resign at any time.

            (b) The resignation of a member does not relieve the
                member from any obligations the member may have to
                the corporation as a result of obligations incurred or
                commitments made prior to resignation.

Subcomm. on the Model Nonprofit Corp. Law of the Bus. Law Section, supra, at 112-

13. N.C.G.S. § 55A-6-30 provides:

            (a) Any member may resign at any time.

            (b) The resignation of a member does not relieve the
                member from any obligations incurred or commitments
                made to the corporation prior to resignation.

N.C.G.S. § 55A-6-30; see also 1993 N.C. Sess. Laws 1359. Accordingly, the General

Assembly was aware of the Revised Model Act at the time of the enactment of

N.C.G.S. § 55A-6-31, which was added as a part of the 1993 amendments. See 1993

N.C. Sess. Laws 1359. The 1993 session laws included N.C.G.S. § 55A-6-21, the

language of which mimics § 6.21 in the Revised Model Act, although N.C.G.S. § 55A-

6-21 ultimately became effective on 1 July 1994 as N.C.G.S. § 55A-6-31. See N.C.G.S.

§ 55A-6-31; 1993 N.C. Sess. Laws 1359, 1428.

      When the General Assembly adopts verbatim some provisions of a model code

and rejects others, we assume that the General Assembly consciously chose to author


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its own alternate provisions. See Newbold v. Globe Life Ins. Co., 50 N.C. App. 628,

633-34, 274 S.E.2d 905, 908-09 (1981) (concluding that the General Assembly’s

rejection of one model provision in light its verbatim adoption of other Model Act

language “indicated a specific intent to reject the Model Act provision”).

          Here, although the General Assembly adopted some parts of the Revised Model

Act’s § 6.21 in N.C.G.S. § 55A-6-31, other parts of N.C.G.S. § 55A-6-31 deviated from

the Revised Model Act’s language. N.C.G.S. § 55A-6-31(a) provides: “No member of a

corporation may be expelled or suspended, and no membership may be terminated or

suspended, except in a manner that is fair and reasonable and is carried out in good

faith.”

          In contrast, the Revised Model Act’s § 6.21(b) provides:

                (b) A procedure is fair and reasonable when either:

                (1) The articles or bylaws set forth a procedure that
                     provides:
                (i) not less than fifteen days prior written notice of the
                     expulsion, suspension or termination and the reasons
                     therefore; and
                (ii) an opportunity for the member to be heard, orally or in
                     writing, not less than five days before the effective date
                     of the expulsion, suspension or termination by a person
                     or persons authorized to decide that the proposed
                     expulsion, termination or suspension not take place; or

                (2) It is fair and reasonable taking into consideration all of
                    the relevant facts and circumstances.




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Subcomm. on the Model Nonprofit Corp. Law of the Bus. Law Section, supra, at 114.

Omitting these procedural considerations, the General Assembly copied almost all

the Revised Model Act’s language for the remaining sections of N.C.G.S. § 55A-6-31.

N.C.G.S. § 55A-6-31(b) and (c) are nearly identical to the Revised Model Act’s § 6.21(d)

and (e), respectively. Compare N.C.G.S. § 55A-6-31(b)-(c), with Subcomm. on the

Model Nonprofit Corp. Law of the Bus. Law Section, supra, at 114.3

          The General Assembly had the opportunity to codify a notice or hearing

procedure within N.C.G.S. § 55A-6-31(a)—as expressly provided in the Revised Model

Act, upon which N.C.G.S. § 55A-6-31 is based—and declined to do so. Therefore, the


3

    The General Assembly adopted the following          The Revised Model Act provides:
    language from the Revised Model Act:
                                                        (d)      Any    proceeding    challenging      an
    (b)     Any     proceeding     challenging    an    expulsion, suspension or termination, including
    expulsion, suspension, or termination shall be      a proceeding in which defective notice is alleged,
    commenced within one year after the member          must be commenced within one year after the
    receives notice of the expulsion, suspension, or    effective date of the expulsion, suspension or
    termination.                                        termination.

    (c)     A member who has been expelled or           (e)     A member who has been expelled or
    suspended may be liable to the corporation for      suspended may be liable to the corporation for
    dues, assessments, or fees as a result of           dues, assessments or fees as a result of
    obligations incurred or commitments made by         obligations incurred or commitments made prior
    the member prior to expulsion or suspension.        to expulsion or suspension.

    N.C.G.S. § 55A-6-31(b)-(c) (emphasis added).        Subcomm. on the Model Nonprofit Corp. Law of
                                                        the Bus. Law Section, supra, at 114 (emphasis
                                                        added).

    N.C.G.S. § 55A-6-31(b) replaces “must” with         The italicized portion of § 6.21(d) does not appear
    “shall” and allows for members to challenge         in N.C.G.S. § 55A-6-31(b).
    decisions within one year of notice.         The
    italicized portion of N.C.G.S. § 55A-6-31(c) does
    not appear in § 6.21(e) of the Revised Model Act.


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General Assembly did not intend to provide for the Revised Model Act’s notice or

hearing procedures in N.C.G.S. § 55A-6-31(a). See Newbold, 50 N.C. App. at 633-34,

274 S.E.2d at 908-09.        As a result, we decline to hold that prior notice or a

participatory hearing is a per se requirement in all cases in order for a nonprofit

corporation to comply with the “fair and reasonable and . . . good faith” requirement

of N.C.G.S. § 55A-6-31(a).

      Assuming arguendo that N.C.G.S. § 55A-6-31(a) as applied to the situation

here required the Club to provide Emerson with prior notice and a hearing—the lack

of which forms the basis of Emerson’s claim for compensatory and punitive

damages—Emerson failed to mitigate his damages allegedly resulting from the Club’s

failure to provide notice and a hearing. “Under the law in North Carolina, an injured

plaintiff must exercise reasonable care and diligence to avoid or lessen the

consequences of the defendant’s wrong. If plaintiff fails to mitigate his damages, ‘for

any part of the loss incident to such failure, no recovery can be had.’” Lloyd v. Norfolk

S. Ry. Co., 231 N.C. App. 368, 371, 752 S.E.2d 704, 706 (2013) (quoting Miller v.

Miller, 273 N.C. 228, 239, 160 S.E.2d 65, 73-74 (1968)). For example, when a plaintiff

asserts a claim for wrongful discharge from at-will employment, we have considered

the diligence with which a plaintiff seeks and accepts comparable employment. See

Blakeley v. Town of Taylortown, 233 N.C. App. 441, 449-50, 756 S.E.2d 878, 884-85

(2014). However, “the failure to mitigate damages is not an absolute bar to all



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recovery; rather, a plaintiff is barred from recovering for those losses which could

have been prevented through the plaintiff’s reasonable efforts.” Smith v. Childs, 112

N.C. App. 672, 683, 437 S.E.2d 500, 507 (1993) (emphasis in original).

      Here, Emerson acknowledged that the Club offered him “an opportunity to

speak on [his] behalf,” and Emerson chose not to attend this proposed meeting on 15

February 2016. Rather, Emerson claimed that the meeting was “a disingenuous

effort to validate an invalid termination.” Even assuming that the Club’s failure to

provide Emerson with notice and an opportunity to be heard violated N.C.G.S. § 55A-

6-31(a), Emerson had an obligation to “lessen the consequences of the [the Club]’s

wrong.”   See Lloyd, 231 N.C. App. at 371, 752 S.E.2d at 706.            Under the

circumstances, attending the meeting and contesting the termination decision from

which Emerson’s compensatory damages supposedly flow would have been

reasonable. Emerson’s failure to mitigate the damages that he claims resulted from

the Club’s alleged violation of N.C.G.S. § 55A-6-31(a) was unreasonable and bars his

recovery here. See Lloyd, 231 N.C. App. at 371, 752 S.E.2d at 706; Smith, 112 N.C.

App. at 683, 437 S.E.2d at 507. The trial court did not err in entering summary

judgment on his claim for damages.

                         B. Declaratory Judgment Act

      Emerson’s claims for declaratory judgments are rendered moot by our

determination that Emerson failed to mitigate his alleged damages. A cause of action



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                                  Opinion of the Court



may be moot under the Declaratory Judgment Act when a litigant seeks only a

determination that some action was unlawful without seeking some form of relief

from the allegedly unlawful conduct. See Hindman v. Appalachian State Univ., 219

N.C. App. 527, 530, 723 S.E.2d 579, 581 (2012); Citizens Addressing Reassignment &

Educ., Inc. v. Wake Cty. Bd. of Educ., 182 N.C. App. 241, 246, 641 S.E.2d 824, 828

(2007). “[A] moot question is not within the scope of our Declaratory Judgment Act.”

Morris v. Morris, 245 N.C. 30, 36, 95 S.E.2d 110, 114 (1956). Unlike in federal courts,

where mootness is a jurisdictional issue, our state courts decline to answer moot

questions as an exercise of judicial restraint. In re Peoples, 296 N.C. 109, 147, 250

S.E.2d 890, 912 (1978). We apply a “traditional mootness analysis” to an action filed

under the Declaratory Judgment Act. Citizens, 182 N.C. App. at 246, 641 S.E.2d at

827.   A moot question “presents only an abstract proposition of law,” and the

resolution of a moot question is one that would have “no practical effect on the

controversy.” Id. at 246, 641 S.E.2d at 828.

       In Citizens, we declined to decide an “abstract proposition of law” where

plaintiffs sought a legal determination that a building was unlawful but did not seek

closure of the building. Id. at 827-28. There, plaintiffs sought a declaratory judgment

that the school board had violated N.C.G.S. § 115C-521(d) by entering into a lease

agreement and arranging for a modular school to be placed on land not owned by the

school board.   Id.   We held that the school was already operating and that a



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declaration that the building was unlawful—absent some effort by the plaintiffs to

close the school—“would have no practical effect on the controversy” and was thereby

moot. Id.

      Similarly, in Hindman, plaintiff professors at Appalachian State University

(“University”) sued their employer for its failure to pay the salary provided in

plaintiffs’ employment contracts. Hindman, 219 N.C. App. at 528, 723 S.E.2d at 579-

80. The professors sued for breach of contract and for a declaratory judgment that

the University had breached the employment contracts with the professors and other

similarly situated faculty members. Id. at 528, 723 S.E.2d at 580. However, in

Hindman, “[professors] did not seek any damages or any form of relief or redress for

the alleged breach of contract.” Id. We affirmed the trial court’s grant of summary

judgment in favor of the University because a legal determination that the University

had breached the employment contract would not “have any practical effect.” Id. at

530, 723 S.E.2d at 581 (quoting Citizens, 182 N.C. App. at 246, 641 S.E.2d at 827).

We noted that the “breach was in the past, is not alleged to be likely to recur, is the

only redress [professors] seek, and [professors] are barred from bringing further

action on this same claim or issue.” Id.

      Here, Emerson’s first claim for relief in his Complaint states that “Emerson is

entitled to a declaratory judgment relating to the status of his membership in [the

Club].”   Emerson’s second claim for relief states that “Emerson is entitled to a



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declaratory judgment as to whether or not the Board can now conduct a curative

hearing in a manner that is fair and reasonable and carried out in good faith, having

previously terminated his membership in violation of [N.C.G.S. § 55A-6-31(a)].”

       Were we to issue a judgment stating that the manner of Emerson’s

membership termination fell short of the “fair and reasonable and . . . good faith”

requirement in N.C.G.S. § 55A-6-31(a) or that post-termination hearings are

impermissible under N.C.G.S. § 55A-6-31(a), such determinations would have no

practical effect in this case. Unlike Hindman, where the plaintiff professors sought

a declaratory judgment without any other remedy or damages, Emerson does seek

compensatory and punitive damages alongside the declaratory judgments.                          See

Hindman, 219 N.C. App. at 528, 723 S.E.2d at 580. However, as discussed above,

Emerson failed to mitigate his purported damages and is therefore barred from

recovery. As a result, the questions about which Emerson sought a declaratory

judgment are moot notwithstanding his claim for damages.

       Emerson seeks declaratory relief with respect to the manner of his termination

from the Club, and such a declaration would not alter the rights or obligations of the

parties.4 Similar to Citizens and Hindman, it may be possible here to identify a


4Emerson’s Complaint did not seek injunctive relief in the form of reinstated membership. Had
Emerson sought a mandatory injunction requiring reinstatement, the declaratory judgment may not
have been moot because this remedy would constitute further relief, which was lacking in Citizens and
Hindman. However, without deciding issues not present, we observe that the question of judicial




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violation of N.C.G.S. § 55A-6-31(a), but the proposition would be abstract or academic,

like a judgment that a school building is unlawful or that a contract has been

breached when no further relief is sought. See Hindman, 219 N.C. App. at 530-31,

723 S.E.2d at 581; Citizens, 182 N.C. App. at 246, 641 S.E.2d at 827.

                                          CONCLUSION

        Emerson failed to mitigate his alleged damages and is barred from recovering

compensatory and punitive damages for the Club’s alleged violation of N.C.G.S. §

55A-6-31(a). Accordingly, the issues presented in Emerson’s requests for declaratory

judgments are moot, as a resolution of these questions would not have any practical

effect on the controversy, and we decline to address them. The trial court’s grant of

summary judgment in favor of the Club on each of Emerson’s claims is affirmed.

        AFFIRMED.

        Judge CALABRIA concurs.

        Chief Judge McGEE concurs in result with separate opinion.




reinstatement of membership in a nonprofit corporation may implicate a nonprofit corporation’s First
Amendment associational rights. See Boy Scouts of Am. v. Dale, 530 U.S. 640, 647-48, 120 S. Ct. 2446,
2451 (2000) (“Government actions that may unconstitutionally burden [the right to associate] may
take many forms, one of which is ‘intrusion into the internal structure or affairs of an association’ like
a ‘regulation that forces the group to accept members it does not desire.’”) (quoting Roberts v. U.S.
Jaycees, 468 U.S. 609, 623, 104 S. Ct. 3244, 3252 (1984)).

                                                 - 17 -
 17-1149 – Emerson v. Cape Fear Country Club, Inc.


       McGEE, Chief Judge, concurring in result with separate opinion.


       I agree the trial court properly granted summary judgment in favor of

Defendant. However, I write separately to respectfully express my view that this

Court’s analysis should be limited to the issues specifically raised by Plaintiff’s

appeal. It is sufficient to conclude Plaintiff has failed to show that N.C.G.S. § 55A-6-

31(a) requires prior notice and a hearing as a matter of law.

       Plaintiff asserts in his appellate brief that the termination of his club

membership (1) was neither fair and reasonable nor executed in good faith, as

required by N.C.G.S. § 55A-6-31(a); and (2) was inconsistent with various other

sources of non-binding authority. Plaintiff begins by noting the general proposition

that

                [t]o determine whether the established facts [show a]
                termination [was] in a manner that [was] fair and
                reasonable and [was] carried out in good faith, this Court
                is left to “[t]he first maxim of statutory construction
                [which] is to ascertain the intent of the legislature. To do
                this[,] this Court should consider the statute as a whole,
                the spirit of the statute, the evils it is designed to remedy,
                and what the statute seeks to accomplish.”

(quoting State v. Johnson, 298 N.C. 47, 56, 257 S.E.2d 597, 606 (1979)). Plaintiff then

states that, “[i]n doing so, [this] Court may look to other authorities of import,

including industry standards, decisions from other jurisdictions, and other recognized

authorities.”
                     EMERSON V. CAPE FEAR COUNTRY CLUB, INC.

                   McGEE, C.J., concurring in result with separate opinion



      By its plain language, N.C.G.S. § 55A-6-31(a) does not provide that a

termination or suspension of membership will only be deemed “fair and reasonable”

and “carried out in good faith” if the member subject to termination or suspension is

afforded prior notice and an opportunity to be heard. Nevertheless, Plaintiff asks

this Court to hold that Defendant violated N.C.G.S. § 55A-6-31(a) as a matter of law

by not providing him “notice of the charges against him and a hearing or an

opportunity to respond to those charges prior to termination [of his membership][.]”

“‘The primary rule of statutory construction is that the intent of the [L]egislature

controls the interpretation of a statute.’” Belk v. Belk, 221 N.C. App. 1, 9, 728 S.E.2d

356, 361 (2012) (quoting Tellado v. Ti-Caro Corp., 119 N.C. App. 529, 533, 459 S.E.2d

27, 30 (1995)). “In ascertaining the legislative intent courts should consider the

language of the statute, the spirit of the statute, and what it seeks to accomplish.

Other indicia considered by this Court in determining legislative intent are the

legislative history of an act and the circumstances surrounding its adoption[.]”

Carter-Hubbard Pub’lg Co. v. WRMC Hosp. Operating Corp., 178 N.C. App. 621, 625,

633 S.E.2d 682, 685 (2006) (citations and quotation marks omitted).

      Notably, in his appellate brief, Plaintiff offers no substantive discussion of “the

text, structure, and policy of [N.C.G.S. § 55A-6-31(a)],” the statute’s legislative

history, or the purpose of our General Assembly in enacting it. See Electric Supply

Co. v. Swain Electrical Co., 328 N.C. 651, 656, 403 S.E.2d 291, 295 (1991). Plaintiff



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                     EMERSON V. CAPE FEAR COUNTRY CLUB, INC.

                   McGEE, C.J., concurring in result with separate opinion



asserts various public policy arguments why corporations should be required to

provide prior notice and an opportunity to be heard before suspending or terminating

a membership, but “these arguments are more properly directed to the [L]egislature.

The sole issue before this Court is one of statutory construction,” see State v. Anthony,

351 N.C. 611, 618, 528 S.E.2d 321, 325 (2000), and we are not persuaded that

N.C.G.S. § 55A-6-31(a) implicitly imposes per se notice and hearing requirements.

      In support of his argument that prior notice and an opportunity to be heard

are mandatory under N.C.G.S. § 55A-6-31(a), Plaintiff relies entirely upon the

following sources of authority: (1) guidelines and recommendations published by the

Club Managers Association, a professional trade association; (2) case law from other

jurisdictions, interpreting and applying non-North Carolina law and legal principles;

(3) Robert’s Rules of Order; and (4) statements purportedly made by attorneys who

were members of Defendant’s Board during internal discussions about Plaintiff’s

termination. These sources are insufficient to support a violation of N.C.G.S. § 55A-

6-31(a). Plaintiff has not argued, for example, that the General Assembly intended

N.C.G.S. § 55A-6-31(a) to reflect or incorporate the “industry standards” he cites.

Defendant’s alleged failure to follow Robert’s Rules of Order, and the internal

discussions of its own attorneys regarding the termination of Plaintiff’s membership,

likewise lack relevance to the question of statutory construction. Plaintiff does not

explain why Defendant’s alleged violation of Robert’s Rules of Order constituted a



                                             3
                     EMERSON V. CAPE FEAR COUNTRY CLUB, INC.

                   McGEE, C.J., concurring in result with separate opinion



violation of N.C.G.S. § 55A-6-31(a); Plaintiff argues only that Defendant “failed to

follow its [own] requirements or guidelines.” Similarly, the opinions expressed by

attorneys serving on Defendant’s Board that, prior to the termination of Plaintiff’’s

membership, “there should be some due process[,]” and that the Board “may want to

allow [Plaintiff] an opportunity to . . . speak on his actions[,]” do not establish that

such measures were mandated by N.C.G.S. § 55A-6-31(a), or that the Board violated

the statute by deciding not to follow those recommendations. Finally, while this

Court may consider the non-binding decisions of other jurisdictions if we find such

authority “instructive[,]” see Carolina Power & Light Co. v. Employment Sec. Comm’n

of N.C., 363 N.C. 562, 569, 681 S.E.2d 776, 780 (2009), the out-of-state and federal

cases cited by Plaintiff “have very little persuasive weight” here, in light of various

factual, procedural, and legal distinctions among the cases. See Wal-Mart Stores E.,

Inc. v. Hinton, 197 N.C. App. 30, 44, 676 S.E.2d 634, 645 (2009).

      Plaintiff has failed to identify any controlling or persuasive authority to

support his proposed construction of N.C.G.S. § 55A-6-31(a) as imposing per se notice

and hearing requirements and, as discussed by the majority, aspects of the statute’s

legislative history suggest our General Assembly intentionally omitted per se notice

and hearing requirements from the plain language of the statute. This concludes our

inquiry. It is unnecessary to address Plaintiff’s alleged failure to mitigate damages,

since Plaintiff’s claim for damages is premised upon a violation of N.C.G.S. § 55A-6-



                                             4
                    EMERSON V. CAPE FEAR COUNTRY CLUB, INC.

                  McGEE, C.J., concurring in result with separate opinion



31(a) and, absent a statutory violation, those claims necessarily fail.     It is also

important to note that our holding in the present case does not preclude a finding

that, under the facts and circumstances of a particular case, a lack of prior notice

and/or hearing could violate the “fair and reasonable” and “good faith” language in

N.C.G.S. § 55A-6-31(a). Plaintiff has simply failed to persuade this Court that the

statute mandates prior notice and a hearing in all instances.




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