Evanish v. Berry, 58056

• Decision Date: 09 November 1988
• Docket Number: No. 58056,58056
• Citation: 536 So.2d 7
• Court: Mississippi Supreme Court
• Parties: Nicholas S. EVANISH & Myrna G. Evanish v. William G. BERRY, Walter R. Wormely, and Experimental Aircraft Association, Chapter 479, Inc., A Mississippi Non-Profit Corporation.

Page 7

536 So.2d 7

Nicholas S. EVANISH & Myrna G. Evanish v. William G. BERRY, Walter R. Wormely, and Experimental Aircraft Association, Chapter 479, Inc., A Mississippi Non-Profit Corporation.

No. 58056.

Supreme Court of Mississippi.

Nov. 9, 1988.

Kenneth L. Swarthout, Biloxi, for appellants.

Crockett Lindsey, Lindsey & Wood, Gulfport, for appellees.

Before ROY NOBLE LEE, C.J., and PRATHER and ZUCCARO, JJ.

ROY NOBLE LEE, Chief Justice, for the Court:

Nicholas S. Evanish and Myrna G. Evanish, his wife, brought suit in the Circuit Court of Harrison County, Mississippi, against Experimental Air Craft Association, Chapter 479, Inc., a Mississippi non-profit corporation, for damages, claiming that the chapter had improperly expelled them from membership. The Association moved for a summary judgment on the ground that the Evanishes had no legal remedy, since the Association had terminated their membership in strict accordance with the bylaws of the Association. The motion was granted, and the Evanishes have appealed to this Court, assigning three (3) errors in the proceedings below.

Facts

In 1981, the Experimental Aircraft Association, Chapter 479, entered into a five-year lease for an airstrip with Walter Wormeley and Delia Wormeley, lessors. The lease was to expire on March 1, 1986, but contained an option to renew for an additional five-year term. The land on which the leased parcel was located was conveyed to club member W.G. Berry and Imogene Berry, his wife, by the Wormeleys on July 22, 1985. Berry gave notice that the hangar area then occupied by Nicholas Evanish was not to be included in any future lease negotiations. Apparently, friction between Berry and Evanish resulted from such notice.

Later, the president of the Association (Watts) telephoned Evanish and requested him to resign from the club and remove his airplane from the fields. Words followed, and friction resulted between them from that conversation. Suffice it to say, meetings were held by the Association and, at the second meeting, a valid motion was made to expel the Evanishes from membership in the Association and the vote was by secret ballot of the members present. A majority of the members voted for the expulsion. That action was in accordance with the bylaws of the Association.

The appellants, Evanishes, filed suit against the Association charging that the Association breached its membership contract and failed to use due process in its attempts to oust them from membership and that they were caused to suffer damages and injuries, e.g., mental anguish and emotional strain, doctor and hospital bills, embarrassment and humiliation, damage to reputation, loss of investments of time and money on improvements of the leasehold, including loss of the aircraft hangar, loss of use and amenities available to members, loss of dues, and other losses and damage to be proved upon the trial.

The order of expulsion provided that the appellants would have reasonable time in which to remove their hangar and other property from the Association leasehold. The appellants filed a second count in the complaint charging a tortious interference with their contract of membership as to Berry, Wormeley and the Association.

Law

The appellants assign three errors in the action of the lower court in granting summary judgment. We will combine those assigned errors and discuss the question as to whether or not the lower court erred in granting the summary judgment.

Mississippi Rule of Civil Procedure 56 provides that summary judgment should be granted when "there is no genuine issue as to any material fact" and when "the moving party is entitled to judgment as a matter of law." The moving party must show that there is no genuine issue of material fact and that on the basis of facts established the party is entitled to judgment as a matter of law. Fruchter v. Lynch Oil Co., 522 So.2d 195, 198 (Miss.1988). The opposing party must show by affidavit, or otherwise, specific facts indicating that there are indeed genuine issues for trial. Fruchter v. Lynch Oil at 199.

This case involves the actions of a voluntary, private, recreational or social club in expelling one of its members. This Court has not been cited to a Mississippi case dealing with this issue. However, the Court has considered whether an employment-related association could discipline its members and has held that "[a] private association has the right to set its own goals and standards as long as they are not against the public policy of the State." Multiple Listing Service of Jackson, Inc. v. Century 21 Cantrell Real Estate, Inc., 390 So.2d 982, 984 (Miss.1980). In that case, the Court expressed approval of the generally accepted rule that courts will not undertake to inquire into the regularity of the procedures adopted and pursued by an association in deciding its own affairs. Multiple Listing Service at 984. ¹

The facts in Everglades Protective Syndicate v. Makinney, 391 So.2d 262, 265 (Fla.Dist.Ct.App.1980), are similar to those in the present case. There, an individual expelled from membership of a social club alleged that the termination of his membership "was made willfully, wantonly and in bad faith in that the actual reason for the termination of his membership was other than that alleged which is unknown." The Florida Appellate Court found that allegation to be a mere legal conclusion which was insufficient to frame an issue for litigation. The Florida Court further said:

Even if there were factual allegations, however, it is difficult to see how a justiciable issue could be made. The governing body of a private, social club 'is the final arbiter of the sufficiency of causes for expulsion.' (Citation omitted). It would appear...