Ponder v. Lake Forest Prop. Owners Ass'n

Citation214 So.3d 339
Decision Date26 June 2015
Docket Number2130790.
Parties Gene PONDER v. LAKE FOREST PROPERTY OWNERS ASSOCIATION et al.
CourtAlabama Court of Civil Appeals

Richard L. Watters, Mobile; and Frank L. Thiemonge III, Mobile, for appellant.

Helen J. Alford and Kristy W. Dugan of Alford Bolin, LLC, Mobile; and Patrick B. Collins, Daphne, for appellees.

DONALDSON, Judge.

Gene Ponder appeals a summary judgment entered by the Baldwin Circuit Court ("the trial court") in favor of Lake Forest Property Owners Association, Inc. ("LFPOA"), on Ponder's claims against LFPOA and on LFPOA's counterclaims against Ponder. Ponder also appeals the dismissal of his claims against the members of the LFPOA Board of Directors ("the Board") in their individual capacities.

Many of the dispositive facts of this case are undisputed, and both Ponder and LFPOA moved for summary judgment based on those facts. LFPOA is a nonprofit corporation that was formed in Baldwin County in 1971, whose members are property owners within the Lake Forest subdivision. At all times relevant to this action, Ponder and his wife have owned a residence in the Lake Forest subdivision subject to the purview of LFPOA. Before October 20, 2003, the LFPOA bylaws permitted amendments to the bylaws to be made only by vote of a majority of LFPOA's members at a membership meeting. The bylaws as they existed at that time also provided that "[a]nnual increases in dues must be approved by members of the [LFPOA] at the annual meeting. The Board [has] no authority to increase dues." On October 20, 2003, a majority of LFPOA's members voted to amend the bylaws to allow the bylaws to be amended by a majority vote of the members of the Board.

At a regular meeting of the Board in November 2003, the Board voted to delete the newly added language in the bylaws permitting the bylaws to be amended by a "vote of a majority of the Board ... at any meeting thereof."

On April 28, 2008, the Board passed a motion rescinding its action of November 2003 that had deleted the amended language in the bylaws. The LFPOA bylaws contain a provision that states:

"Section 3.10. Rules of Meetings. All meetings of the membership and stated meetings of the Board of Directors shall be conducted in accordance with the procedures set out in the current edition of ‘Robert's Rules of Order,’ except where such rules are superseded by the Articles of Incorporation, the By–Laws or Federal or State law."

Article IX, § 35, of Robert's Rules of Order (10th ed.) provides that to rescind "is to strike out an entire main motion, resolution, rule, bylaw, section, or paragraph that has been adopted at some previous time." On September 29, 2009, the Board met and voted to "restore" Section 2.4 of the LFPOA bylaws, which had provided the process for assessing and raising membership dues, to its "original form." Although the record does not appear to contain an "original" copy of the bylaws from 1971, the oldest amended version of the bylaws in the record is dated October 10, 1988. Section 2.4 of that version of the bylaws provided:

"Section 2.4. Dues, Charges and Assessments. Members of the Association shall be obligated to pay dues, charges and assessments imposed by the Association.
"Annual increases in dues must be approved by the members of the Association at the annual meeting. The Board of Directors has no authority to increase dues. The power of authority of the Board of Directors is limited to one (1) assessment annually, if deemed necessary, for the preservation of the Association. This assessment cannot exceed $50.00 per member annually."

On October 4, 2009, the Board conducted a special meeting to discuss changing the amount of membership dues. At that meeting, the Board passed a motion to increase the LFPOA monthly dues by $6.00 per month effective January 2010. The Board met for another special meeting on October 10, 2009, at which the Board ratified its act of increasing the membership dues taken at the October 4, 2009, Board meeting. The record further indicates that Section 2.4 of the LFPOA bylaws as amended on October 10, 2009, provided:

"Section 2.4. Dues, Charges and Assessments. Members of the Association shall be obligated to pay dues, charges and assessments imposed by the Association. Note: Pursuant to a motion made in a special meeting on October 4th, 2009 a maximum cap of 3% can be issued by the Board of Directors as determined at the Annual Meeting."

In October 2010, Ponder was elected to the Board and appointed as secretary of LFPOA. Upon assuming his position on the Board, Ponder signed copies of the "Board Member Code of Ethics," "Code of Conduct," and "Confidentiality Policy." Ponder subsequently made several requests to LFPOA president Mary Ann Hampton to provide him with a copy of the LFPOA membership list with member e-mail addresses, including a request by e-mail in July 2011. Hampton replied to Ponder's e-mail request but refused to provide the membership list on the ground that giving him the list would be a violation of federal privacy law. Ponder obtained member e-mail addresses from another source, and in August 2011, he sent an e-mail from a personal e-mail account to the member e-mail addresses he had obtained in which he listed various complaints against LFPOA, sought participation from those members in a potential lawsuit against LFPOA, and encouraged members to seek to remove their properties from the purview of LFPOA. Ponder sent an e-mail from the same e-mail account to request that the Board remove his property from the purview of LFPOA, and he volunteered to remove himself from the Board once his property was removed from the purview of LFPOA. Ponder's wife sent invitations to the same set of member e-mail addresses inviting members of LFPOA to an informational meeting at a restaurant to consider a lawsuit against LFPOA and the members of the Board. Ponder attended that meeting, which was held on August 31, 2011, and participated in a video presentation outlining his complaints.

On September 8, 2011, the Board met at a specially called meeting at which it voted to remove Ponder as a member of the Board for cause.

On July 27, 2012, Ponder filed a complaint against LFPOA and Board members Mary Ann Hampton, Richard Kersey, Ed Kirby, Travis Stone, Bill Menefee, Marie Bidney, Tony Dees, and Ray Sturch in their individual capacities. Ponder's complaint alleged claims for relief based on allegations of conspiracy and unjust enrichment, and he sought a judgment declaring that the Board did not have the authority to amend the LFPOA bylaws in July 2011, that the Board did not have the authority to raise dues, and that the Board did not have the authority to remove Ponder as a member of the Board.

LFPOA and the individual Board members filed motions to dismiss the Board members as defendants. On December 18, 2012, the trial court entered an order granting the motion to dismiss the Board members in their individual capacities. On January 8, 2013, LFPOA filed an answer and a counterclaim against Ponder seeking damages from him based on claims alleging breach of fiduciary duty, spoliation of evidence, intentional interference with a business relationship, and defamation per se. Ponder answered the counterclaim with a general denial. On July 8, 2013, LFPOA amended its counterclaim to seek judgment declaring that the bylaws had been properly amended in July 2011, that the Board had the authority to raise dues, and that the Board had the authority to remove Ponder as a member of the Board for cause.

On July 11, 2013, Ponder amended his complaint to include a claim for relief on behalf of a class of LFPOA members who had been subject to the increased dues. Ponder also added a claim of breach of contract against LFPOA. On July 17, 2013, LFPOA filed a motion to strike Ponder's class allegations in his amended complaint.

On September 26, 2013, LFPOA filed a motion seeking a summary judgment as to both Ponder's claims and its counterclaims. LFPOA supported its motion with a brief and exhibits including the LFPOA articles of incorporation, the LFPOA bylaws as amended in 1988, proposed amendments submitted to the LFPOA membership in 2003, the LFPOA bylaws as amended in 2008, the LFPOA bylaws as amended in 2009, the LFPOA bylaws as amended in 2010, the LFPOA bylaws as amended in 2011, minutes from several LFPOA Board meetings, a 2010 letter from attorney Robert S. Edington opining that the LFPOA bylaws had been properly amended to allow the increase in dues, a copy of the "Board Member Code of Ethics" signed by Ponder on October 25, 2010, a copy of the Board's confidentiality policy signed by Ponder on October 25, 2010, portions of Ponder's deposition, e-mails sent by Ponder, printouts from a Web site built by Ponder soliciting participation in a class-action lawsuit against LFPOA, an e-mail from Ponder's wife Kay Ponder inviting LFPOA members to a meeting regarding the proposed class-action lawsuit, portions of Kay Ponder's deposition, and a copy of Ponder's deed to his property subject to the purview of LFPOA.

On September 28, 2013, Ponder filed a motion seeking a summary judgment as to both his claims and LFPOA's counterclaims. Ponder supported his motion with a brief and exhibits including documents from the 2003 LFPOA annual meeting, the LFPOA bylaws as amended in 2006, 2009, and 2011, minutes from several LFPOA Board meetings, e-mails between Ponder and Board members, letters to Ponder from attorney Patrick Collins regarding the Board's decision to remove him from the Board, a copy of the LFPOA articles of incorporation, and an affidavit from Ponder.

Each party filed a response to the opposing party's motion for a summary judgment, which responses included voluminous additional exhibits and affidavits. Each party moved to strike various exhibits filed by the other, which resulted in numerous additional responses and replies, again with voluminous, and largely redundant, exhibits. On November 25, 2013, Ponder moved for certification of...

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    ...an allegation which may qualify as defamation per se because it implicates Mr. Austin in a crime. See Ponder v. Lake Forest Prop. Owners Ass'n, 214 So. 3d 339, 350-52 (Ala. Civ. App. 2015).4 A claim of defamation per se allows a plaintiff to recover punitive damages, and the law presumes th......
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