Pollock v. Crestview Country Club Ass'n

• Decision Date: 01 May 2009
• Docket Number: No. 99,941.,99,941.
• Citation: 205 P.3d 1283
• Parties: Robin E. POLLOCK, Appellant, v. CRESTVIEW COUNTRY CLUB ASSOCIATION, Appellee.
• Court: Kansas Court of Appeals

205 P.3d 1283

Robin E. POLLOCK, Appellant, v. CRESTVIEW COUNTRY CLUB ASSOCIATION, Appellee.

No. 99,941.

Court of Appeals of Kansas.

May 1, 2009.

Mark G. Ayesh and Ray E. Simmons, of Ayesh Law Offices, of Wichita, for appellant.

Stephen E. Robison and Lyndon W. Vix, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wichita, for appellee.

Before BUSER, P.J., ELLIOTT and GREEN, JJ.

BUSER, J.

Robin E. Pollock sued the Crestview Country Club Association (Crestview) after he was expelled from membership in the club because of his loud and offensive language while in the Men's Grill. The district court granted summary judgment to Crestview and Pollock appeals. We affirm.

Factual and Procedural Background

Pollock joined Crestview in the early 1980's. He received written censures in 1992 and 1995 for loud and offensive language. On each occasion Pollock was warned that such behavior could result in expulsion from the club.

As set forth in Pollock's pleading below,

"[o]n March 8, 2006, [he] was in the Mens' Grill at [Crestview] seated at a table by himself having a cocktail. When Dennis Gillen walked into the Mens' Grill, [he] called [Gillen] a condescending asshole.... Gillen did not respond nor did he complain. Another member, Grant Nutter, filed a complaint about [Pollock's] conduct."

Gillen was the immediate past-president of Crestview. As president, Gillen had supported a controversial capital campaign which Pollock opposed. Pollock admitted in his deposition that he was unhappy, angry, and raised his voice when making the comment to Gillen.

On April 7, 2006, Greg Harman, the president of Crestview informed Pollock by letter that Crestview's board was "conducting an investigation to determine if [Crestview's] rules and regulations, specifically Article I, Section O `General Conduct and Appearance,' have been violated and, if so, what sanction as authorized by [Crestview's] rules and regulations Article II, Section D and Article XI of the Bylaws may be appropriate." Harman gave Pollock the "opportunity to respond in writing or by personal meeting with me or the Board at [Crestview] at a mutually convenient date and time so that we may complete our investigation."

Article I, Section O of Crestview's rules and regulations provided: "Crestview is a family club. Loud, offensive conduct or appearance by members or their guests will not be tolerated." Article II, Section D of the rules and regulations stated in relevant part:

"Violation of any Crestview rule by members may result in discipline up to and including expulsion from Crestview, depending on the nature and seriousness of the violation, as determined by the Board of Directors.... If it is determined that a violation has occurred, except in instances where more serious measures, including immediate expulsion, are necessary, disciplinary action normally will take the following steps:

1. First Violation—Verbal warning

2. Second Violation in 24 months—Written warning

3. Third Violation in 24 months—Warning letter from the Board of Directors

4. Fourth Violation in 24 months—Suspension of use of [Crestview] for 60 days

5. Fifth Violation in 24 months—Expulsion from Crestview."

Article XI, Section 3 of the bylaws set forth in relevant part: "The Board of Directors at any Regular or Special Meeting may suspend or expel for cause any member of [Crestview] upon a (three-fourths)—affirmative vote of the Directors."

On April 26, 2006, Harman wrote to Pollock again. In the letter, Harman memorialized a telephone conversation of April 8, 2006, in which Pollock had "stated, among other items, that you would respond to the incident report through your attorney, Mark Ayesh." Harman told Pollock that because "no response has been received from you or Mr. Ayesh," the board was extending the response time for another week.

On May 2, 2006, Ayesh responded in a letter to Harman. Ayesh contended "the incident is being exaggerated" and that "[m]embers are entitled to have an opinion and express it even if it is critical of the governance of [Crestview.]" Ayesh also identified "several incidents in the past" by other members "which probably should have received some attention, but did not."

On May 12, 2006, Harman wrote to Ayesh, requesting "advisement from Mr. Pollock of any members, guests, staff, etc. that he requests be interviewed concerning the reported incident." On May 18, 2006, Ayesh responded by letter and requested an interview of Pollock. Ayesh also mentioned Rick Putman, who was present during the incident: "We understand you have interviewed Rick Putman. Reports from Mr. Putman to our client indicate Mr. Putman is a witness favorable to Mr. Pollock."

On May 24, 2006, Harman wrote to Ayesh that "Mr. Putman's observations and information, whether favorable or not to Mr. Pollock, will be given due consideration like all other observations and information concerning the reported incident." Putman testified in his deposition that a board member, Bill Cary, called him a few days after the incident, and that he spoke to Cary in the belief that Cary was "investigating the situation." Putman was never formally interviewed by the board committee investigating the incident. In his own deposition, Cary denied calling Putman.

On July 7, 2006, Pollock appeared with Ayesh for an interview by Crestview's counsel, Stephen Robison. Bob Dool, a member of the board committee investigating the incident, was also present. The interview was recorded, and transcripts were prepared.

On July 24, 2006, the board met and voted to expel Pollock from membership in Crestview.

Pollock then sued Crestview claiming breach of contract, breach of the implied duty of good faith and fair dealing, fraud, deprivation of due process, and civil conspiracy. Both parties moved for summary judgment. Pollock's motion was denied. In its order granting judgment to Crestview, the district court found that Pollock had abandoned certain claims, and that his "sole remaining claim sounds in breach of contract." As characterized by the district court: "[Pollock] claims [Crestview] breached its contract with him by failing to provide due process in his expulsion and further claims [Crestview] engaged in bad faith and unfair dealings in its expulsion of him."

The district court rejected Pollock's arguments, concluding that Crestview had provided Pollock with "due process" and that "there is no evidence of bad faith on the part of [Crestview]." The judge also stated from the bench: "[I]t just appears ... this private club made a decision. It's based on evidence that they considered and a judgment [was] made by the Board. The court's not going to substitute its judgment for that of the Board." Pollock appeals.

On appeal, Pollock argues violation of due process rights including "substantive due process," breach of contract, and breach of the implied duty of good faith and fair dealing.

Due Process

Our standard of review in summary judgment cases is well known:

"`"`The [district] court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.' [Citations omitted.]"'" Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).

Pollock draws our attention to facts not relied upon by the district court, but he does not dispute those facts the district court found to be uncontroverted. Summary judgment was appropriate if the facts Pollock now identifies, some of which appear to be controverted, were not material. See Allen, Gibbs & Houlik v. Ristow, 32 Kan.App.2d 1051, Syl. ¶ 1, 94 P.3d 724 (2004).

Pollock first contends Crestview violated his substantive due process rights to "protection from arbitrary action." For support, Pollock cites Darling v. Kansas Water Office, 245 Kan. 45, 51, 774 P.2d 941(1989), which discussed both substantive and procedural aspects of constitutional due process rights.

While "[m]any cases dealing with social club expulsion talk in terms of due process ... [i]n the traditional sense, due process is protection against state action." Hartung v. Audubon Country Club, Inc., 785 S.W.2d 501, 503 n. 1 (Ky.App.1990). Disputes between private social clubs and their members over expulsion do not engage constitutional due process protections, either substantive or procedural. See Bartley v. Augusta Country Club, Inc., 254 Ga. 144, 326 S.E.2d 442 (1985); Rose v. Zurowski, 236 Ga.App. 157, 160, 511 S.E.2d 265 (Ga.App. 1999); Garvey v. Seattle Tennis Club, 60 Wash.App. 930, 935, 808 P.2d 1155 (1991). "Embedded in our Fourteenth Amendment jurisprudence is a dichotomy between state action, which is subject to scrutiny under the Amendment's Due Process Clause, and private conduct, against which the Amendment affords no shield, no matter how unfair that conduct may be." NCAA v. Tarkanian, 488 U.S. 179, 191, 109 S.Ct. 454, 102 L.Ed.2d 469 (1988).

Pollock has not shown any state action which caused his expulsion from Crestview. As a result, constitutional due process protections are not implicated. Although the district court found that Pollock was afforded due process, in context this meant the process due to Pollock under terms of the contract with Crestview.

Breach of Contract

Turning now to Pollock's contract claim, he contends Crestview failed to comply with its rules, regulations, and bylaws during the disciplinary process.

"`To the extent this issue involves an interpretation of written documents, this court's standard of review is unlimited. City of...