Bcemc v. Catrett

• Decision Date: 05 May 2006
• Docket Number: 1040371.,1040362.
• Citation: 942 So.2d 337
• Parties: BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION, J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton v. Robert Lee CATRETT, Wesley Grant, John Gregg, David Harms, Davida Hastie, George P. Kaiser, William Penry, Henry Vick, and Cecil Ward. Ex parte Baldwin County Electric Membership Corporation, J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton (In re Robert Lee Catrett, Wesley Grant, John Gregg, David Harms, Davida Hastie, George P. Kaiser, William Penry, Henry Vick, and Cecil Ward v. Baldwin County Electric Membership Corporation, J. Thomas Bradley, Jr., Steven P. Brill, Aubury L. Fuller, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton).
• Court: Alabama Supreme Court

942 So.2d 337

BALDWIN COUNTY ELECTRIC MEMBERSHIP CORPORATION, J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton v. Robert Lee CATRETT, Wesley Grant, John Gregg, David Harms, Davida Hastie, George P. Kaiser, William Penry, Henry Vick, and Cecil Ward.

Ex parte Baldwin County Electric Membership Corporation, J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton

(In re Robert Lee Catrett, Wesley Grant, John Gregg, David Harms, Davida Hastie, George P. Kaiser, William Penry, Henry Vick, and Cecil Ward v. Baldwin County Electric Membership Corporation, J. Thomas Bradley, Jr., Steven P. Brill, Aubury L. Fuller, Tommie Werneth, John D. Taylor, Jr., Peggy R. Vanover, and Thomas J. Helton).

1040371.

1040362.

Supreme Court of Alabama.

May 5, 2006.

COPYRIGHT MATERIAL OMITTED

Daniel G. Blackburn and Cynthia J. Sherman of Blackburn & Conner, P.C., Bay Minette; and Robert A. Huffaker, Jr., of Rushton, Stakely, Johnston & Garrett, P.A., Montgomery, for appellant/petitioner Baldwin County Electric Membership Corporation.

Douglas L. McCoy of Hand Arendall, L.L.C., Mobile, for appellants/petitioners J. Thomas Bradley, Jr., Steven P. Brill, Tommie Werneth, John D. Taylor, Jr., and Thomas J. Helton.

Mary E. Murchison of Murchison & Howard, LLC, Foley, for appellant/petitioner Peggy R. Vanover.

Taylor D. Wilkins, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for appellees/respondents.

SMITH, Justice.

This appeal and petition for a writ of mandamus arise out of a dispute over voting procedures for the election of the board of trustees of the Baldwin County Electric Membership Corporation ("the Cooperative") and over procedures for approving or amending the minutes from the Cooperative's annual meetings. The Cooperative and certain individuals serving on the board of trustees of the Cooperative¹ (collectively "BCEMC") appeal from the trial court's order issuing a preliminary injunction. BCEMC has also filed a petition for a writ of mandamus asking this Court to set aside the trial court's order. The appellees/respondents are nine individual members of the Cooperative ("the plaintiffs").² Our affirmance of the trial court's order in case no. 1040371 renders BCEMC's petition moot. We therefore deny the petition.

Facts and Procedural History

The Cooperative is organized under Ala. Code 1975, §§ 37-6-1 through -49, for the purpose of supplying electric service to customers in Baldwin County and Monroe County. It is the largest electric cooperative in Alabama. Any person or entity that receives electric service from the Cooperative is eligible to become a member.³

The Cooperative is managed by a board of seven trustees. The Cooperative serves a territory that is divided into seven districts, and each district is represented by one trustee, who resides within the district he or she represents.⁴ The Cooperative holds an annual meeting for the purposes of electing trustees and conducting its business. All members of the Cooperative are entitled to vote in the at-large trustee elections. According to the bylaws, the president of the board of trustees must appoint a nominating committee before the annual meeting. The nominating committee consists of two members from each district for which trustees are to be elected at that year's annual meeting plus one at-large member who is not from any of the districts for which elections are to be held. The nominating committee nominates at least one candidate for each district from which a trustee must be elected.

In 2004, the membership of the Cooperative was scheduled to elect trustees for districts 2, 4, and 6. Steven P. Brill, trustee representative from district 2 and the president of the board of trustees, appointed a nominating committee in accordance with the bylaws. The committee met to discuss nominations for the trustee positions. David Harms, a member of the Cooperative and one of the plaintiffs in this case, appeared before the nominating committee and requested to be nominated for the trustee position for district 2. The committee decided not to place Harms on the ballot. The committee nominated Brill for district 2, Tommie Werneth for district 4, and Peggy Vanover and Roy LeBlanc for district 6.

The bylaws of the Cooperative state that members can vote for trustees by mail-in ballot or in person at the annual meeting.⁵ The secretary of the board of trustees is responsible for mailing members the official notice of the annual meeting, along with the mail-in ballots. If a member decides to vote by mail, he or she returns the completed ballot to the Cooperative by the deadline set by the board of trustees. However, the members may also attend the annual meeting and vote in person.

The bylaws also state that "[n]othing contained herein shall, however, prevent additional nominations from the floor at the meeting of the members." Therefore, according to the bylaws, the president must call for additional nominations to be made from the floor at the annual meeting. However, because the deadline for mail-in voting is before the annual meeting, the bylaws do not include a procedure that allows members voting by mail to vote for any candidates who might be nominated from the floor at the annual meeting. The plaintiffs allege that this voting system violates the bylaws of the Cooperative and the parliamentary procedure requirements set out in Robert's Rules of Order.⁶

The 2004 annual meeting was scheduled to be held on December 9, 2004. In late October or early November 2004, after the nominating committee had met, the secretary of the board of trustees mailed notice of the annual meeting and mail-in voting ballots to members. Members opting to vote for trustees by mail had to return their ballots by December 2, 2004.

The plaintiffs sued BCEMC on November 18, 2004, seeking a declaratory judgment, a preliminary injunction, and a permanent injunction.⁷ The plaintiffs requested that the trial court hold a hearing on their request for a preliminary injunction and that BCEMC be enjoined "from proceeding with the election of trustees at the December 9, 2004, annual meeting." The plaintiffs also requested that upon a final hearing the trial court enter a permanent injunction "enjoining [BCEMC] from proceeding with the election of the trustees at the [Cooperative's] annual meeting on December 9, 2004" and "ordering [that] the By-Laws of the [Cooperative] be amended to provide for a special or regular meeting of the membership to receive the nominating committee's report for nominations of the trustees and to allow nominations from the floor prior to the vote of the membership for trustees at the annual meeting of the corporation."

In addition to the dispute over the voting procedures for the election of trustees, the plaintiffs' complaint alleged that the method for approving or amending the minutes from past annual meetings was improper. The Cooperative held its 2003 annual meeting on March 28, 2003. During the meeting, the Cooperative conducted trustee elections for districts 5 and 7. The plaintiffs contended that Brill, serving as president of the board of trustees and presiding over the meeting, refused to recognize nominations from the floor. Witness testimony as to whether Brill allowed nominations from the floor at the 2003 meeting is conflicting. The minutes from the meeting indicate that Brill opened the floor to nominations for trustees for districts 5 and 7, but that no members made nominations from the floor.

The notice of the 2004 annual meeting that was mailed to members also contained a ballot for members to vote to approve or disapprove the minutes from the March 2003 meeting. The plaintiffs allege that the voting procedure used by the board of trustees to obtain approval of the minutes of the 2003 annual meeting violates the bylaws of the Cooperative because it does not give members the opportunity to suggest amendments or additions to the minutes. Therefore, the plaintiffs' complaint also requested a judgment declaring "[t]hat the minutes of the March 28, 2003, annual meeting be submitted to the membership for corrections." In addition, the complaint requested a preliminary injunction ordering that "the annual Minutes of March 28, 2003, not be submitted for approval or disapproval to the membership without correction." Lastly, the complaint requested that upon final hearing the trial court enter a permanent injunction ordering "that the annual Minutes of March 28, 2003, not be submitted for approval or disapproval."

On November 24, 2004, the trial court held a hearing on the plaintiffs' request for the preliminary injunction. At the hearing, the plaintiffs presented the trial court with an amended complaint asking the trial court "to require that the [Cooperative] follow [its] bylaws in the election process for trustees." In addition, BCEMC filed a motion to dismiss or, in the alternative, for a summary judgment. The trial court denied the motion.

On December 2, 2004, the trial court granted in part the injunctive relief sought. The trial court found that when the Cooperative amended the bylaws to allow members to vote by mail, "a comprehensive study was not conducted to determine whether any other portions of the bylaws should be amended to accommodate mail voting." The trial court also found that there was an irreconcilable conflict in the bylaws between the mail-in voting provision and the provision allowing nominations from the floor. Therefore, the trial court held that it had a "duty" to interpret the procedural provisions together "so that no provision of [the bylaws] is arbitrarily disregarded." The trial court then ordered:

"(a) The president of the [Cooperative] shall, at the annual meeting to be held on December 9, 2004, open the floor for nominations for a trustee for each district that must elect a trustee...