Rowland v. Union Hills Country Club

• Decision Date: 11 February 1988
• Docket Number: CA-CV,No. 2,2
• Citation: 757 P.2d 105,157 Ariz. 301
• Parties: Dwight R. ROWLAND and William F. Weither and Helen Weither, husband and wife; Melvin R. Colwell and Mary Colwell, husband and wife, Plaintiffs/Appellants, v. UNION HILLS COUNTRY CLUB, an Arizona corporation, and Jack D. Collins, Defendants/Appellees. 87-0280.
• Court: Arizona Court of Appeals

Page 105

757 P.2d 105

157 Ariz. 301

Dwight R. ROWLAND and William F. Weither and Helen Weither, husband and wife; Melvin R. Colwell and Mary Colwell, husband and wife, Plaintiffs/Appellants, v. UNION HILLS COUNTRY CLUB, an Arizona corporation, and Jack D. Collins, Defendants/Appellees.

No. 2 CA-CV 87-0280.

Court of Appeals of Arizona Division 2, Department A.

Feb. 11, 1988.

Review Denied July 12, 1988.

[157 Ariz. 302] Greengard & Finley, P.A. by Patricia J. Finley, R. Austin Goodale, and Michael DaSilva, Phoenix, for plaintiffs/appellants.

Jennings, Strouss & Salmon by Jefferson L. Lankford, Phoenix, for defendants/appellees.

OPINION

HOWARD, Presiding Judge.

This is an appeal from an order granting summary judgment in the defendants' favor on all counts and denying plaintiffs' cross-motion for summary judgment on a breach of contract claim. We affirm the denial on the plaintiffs' cross-motion and the granting of summary judgment for the defendants on the counts for intentional and negligent infliction of emotional distress, "outrage," and "false light" invasion of privacy. We reverse the summary judgment granted in defendants' favor on the breach of contract, defamation and conspiracy claims.

At the time of the events in question, defendant Collins was president of the board of directors of defendant Union Hills Country Club. The plaintiffs were members of the country club. The plaintiffs were expelled on February 26, 1986, for "conduct unbecoming a member." It is this expulsion and the defendants' alleged motivation for it on which the plaintiffs base their claims. Because there are issues of fact unresolved as to the breach of contract, defamation and conspiracy claims, we reverse.

Union Hills Country Club (UHCC or Club) is an Arizona corporation with approximately 900 shareholder-members. Its by-laws provide for selection of a board of directors by member vote, a process for amending the by-laws and a nominating procedure for candidates for the board of directors. The plaintiffs contend that the "conduct unbecoming a member" on which their expulsion was based was their attempt, undertaken in accordance with the by-laws, to elect a new board of directors and, ultimately, to amend the by-laws to permit governance by the general membership rather than by a board of directors. In effect, the plaintiffs contend that no specific conduct other than this supports the charges against them and that this conduct alone, which is authorized by the by-laws, cannot be characterized as "conduct unbecoming a member."

"In reviewing a grant of summary judgment, evidence must be viewed in the light most favorable to the losing party, with that party being given benefit of all favorable inferences that may be reasonably drawn from the evidence." Wisener v. State, 123 Ariz. 148, 598 P.2d 511 (1979). The appellate court will not weigh the evidence. Id.

The facts are as follows. The plaintiffs, members of UHCC, formed a lobbying organization, The Independent Members Electorate (TIME). TIME representatives began lobbying the general membership in an effort to amend the by-laws. The proposed amendments were intended ultimately to permit replacement of the board of directors. A meeting between the board of directors and TIME representatives was held on February 11, 1986. Defendant Collins reported by letter to the general membership that the meeting revealed no disagreement on major issues. However, on February 20, Collins, as president of the board, sent letters to the plaintiffs advising them to appear on February 25 for an "opportunity to be heard" on charges of "violation of UHCC by-laws and unbecoming conduct as a member as required by Article IV, Section 4." The letter informed the plaintiffs that the board would be acting on the charges whether the plaintiffs appeared or not.

The charges against the plaintiffs were set forth in an attachment to the letter which provided:

"You are called before this Special Meeting of the Board of Directors under the provisions of Article III, Section 1, par. f and Article IV, Section 4 of the By-Laws of U.H.C.C.

1. You have fostered an alienating and contemptuous attitude toward the Board of Directors which 'creates problems for the members of the Club.'

2. You have helped develop and distribute both orally and in writing a program of misinformation which 'creates problems for the members of the Club'.

3. Unsupported accusations have caused untold wasted time and effort on the part of Board members and employees. This type of harassment has made the work of our Board more difficult than necessary. It has also made it increasingly difficult to obtain qualified candidates for the Board which is 'conduct unbecoming a member in his or her relation with other members'.

4. You have refused to meet your membership responsibility of making your complaints in writing as required by Art. XIV, Sec. 3, which is in violation of our By-Laws.

Through these and other actions and behavior, you have been able to foment and foster an attitude of suspicion and mistrust toward the Board. This has been detrimental to the patronage of the Club and has cost the Club some candidates for membership. This is a threat to the financial health of our Corporation."

Plaintiff Rowland appeared at his appointed time, 8:30 a.m. on February 25. After reading his own letter to the board, in which he asked for a "Bill of Particulars," he stated that he was unable to identify the acts or words that formed the basis for the charges. He brought to the board letters from other TIME members similarly charged, who felt it futile to appear, which also requested a "Bill of Particulars." Collins, in reply, asked Rowland whether he had anything more to say. Rowland replied that he did not and was excused. Before the meeting adjourned at 9:45 a.m., the board voted to expel Rowland. The other plaintiffs were expelled as the time set for their hearing passed and they did not appear.

EMOTIONAL DISTRESS, "OUTRAGE" AND INVASION OF PRIVACY CLAIMS

We affirm the summary judgment order on the counts alleging intentional and negligent infliction of emotional distress, "false light" invasion of privacy and for a claim in tort for "outrage." At the outset, we agree with the defendants that no separate tort of "outrage" exists in Arizona. Plaintiffs point to Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 716 P.2d 1013 (1986), as support for recognition of an independent cause of action, "a tort of outrage." Id. at 80, 716 P.2d at 1017. A complete reading, however, clearly shows that the court in that case was referring to a showing of outrageous circumstances or conduct as an element of the tort intentional infliction of emotional distress. Outrageous conduct by itself is not a tort.

Tort claims for intentional infliction of emotional distress and "false light" invasion of privacy require proof of outrageous conduct. Lucchesi, supra; Rutledge v. Phoenix Newspapers, Inc., 148 Ariz. 555, 715 P.2d 1243 (App.1986). The Oregon appellate court, in its discussion of a tort of "outrageous conduct," evaluated that conduct in the context of the infliction of severe emotional distress and required that the conduct exceed " 'any reasonable limit of social toleration.' " Humphers v. First Interstate Bank, 68 Or.App. 573, 576, 684 P.2d 581, 584 (1984), rev. in part on other grounds, 298 Or. 706, 696 P.2d 527 (1985), citing Hall v. The May Dept. Stores, 292 Or. 131, 637 P.2d 126 (1981). The conduct complained of in this case, even if proven at trial to be true, is not so far outside the bounds of decency as to cause a reasonable person, upon hearing of it, to shout, "Outrageous!" Ford v. Revlon, Inc., 153 Ariz. 38, 43, 734 P.2d 580, 585 (1987). This essential element lacking, we affirm the granting of summary judgment on these counts.

Damages for unintended or negligent infliction of emotional distress are recoverable in Arizona. Keck v. Jackson, 122 Ariz. 114, 593 P.2d 668 (1979). However, the emotional distress inflicted "must be manifested as a physical injury." Id. at 115, 593 P.2d at 594. Furthermore, "[t]he plaintiff/bystander must himself have been in the zone of danger so that the negligent defendant created an unreasonable risk of bodily harm to him." Id. at 116, 593 P.2d at 595. As a matter of law, the plaintiffs' allegations, even if true, are insufficient to support a claim for negligent infliction of emotional distress. Expulsion from a country club, as it occurred in this case, even if done maliciously and without legitimate basis, cannot be considered sufficient to create an unreasonable risk of bodily harm to the plaintiff. Summary judgment on the negligent infliction of emotional distress count is affirmed.

BREACH OF CONTRACT

The rights of members of a private organization are governed by the articles of incorporation and by-laws, which constitute a contract between the members and the organization, and among the members themselves. Savoca Masonry Co. Inc. v. Homes & Son Const. Co. Inc., 112 Ariz. 392, 542 P.2d 817 (1975); see also Bartley v. Augusta Country Club, Inc., 166 Ga.App. 1, 303 S.E.2d 129 (1983); Orchard Ridge Country Club, Inc. v. Schrey, 470 N.E.2d 780 (Ind.App.1984); Kendrick v Watermill Beach Club, Inc., 8 Misc.2d 798, 165 N.Y.S.2d 1009 (1957). Although defendants concede this, they argue that because the relationship is "social" in nature, judicial scrutiny does not extend to substantive claims of breach and is limited to determining whether the organization followed its own procedures in expelling a member. Defendants rely on this court's decision, in Aspell v. American Contract Bridge League of Memphis, Tennessee, 122 Ariz. 399, 595 P.2d 191 (App.1979), where we stated:

"Courts have not yet been willing to extend legal protection from ostracism ... or provide compensation for 'mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.' ... The decision to...