Opinion
CV176070866S
10-19-2018
Gary DE SIMONE v. STONINGTON HARBOR YACHT CLUB, INC.
UNPUBLISHED OPINION
Wilson, J.
FACTS
On May 31, 2017, the plaintiff, Gary De Simone, filed a one-count complaint against the defendant, Stonington Harbor Yacht Club, Inc. (SHYC). The plaintiff amended his complaint three times. The third amended complaint, dated May 3, 2018, is the operative complaint.
The plaintiff alleges the following facts in count one of the operative complaint, in which the plaintiff claims that the defendant violated General Statutes § 33-1056(a). The plaintiff was a member of SHYC, a nonstock corporation, and served as commodore of the board of governors (Board) during 2015 and 2016. On December 3, 2016, Elizabeth Bowman (Bowman) was elected to serve as commodore of the defendant, effective January 1, 2017. The plaintiff’s tenure as commodore concluded on December 31, 2016, but he remained an active member of SHYC.
General Statutes § 33-1056(a) which governs Rules for Membership in corporations, provides that: "Membership shall be governed by such rules of admission, retention, withdrawal and expulsion as the bylaws shall prescribe, provided all such bylaws shall be reasonable, germane to the purposes of the corporation, and equally enforced as to all members."
Elizabeth Bowman is also referred to as "Betsy" Bowman throughout the pleadings and submitted evidence. For clarity, she will be referred to as "Bowman" herein.
On January 24, 2017, during which time the plaintiff was an active member of SHYC, Bowman and the plaintiff engaged in a conversation wherein the plaintiff expressed his dissatisfaction with the Board and informed Bowman that he had considered the possibility of formally submitting a resignation letter which was to remain private between the plaintiff and Bowman. The plaintiff then handed a draft of the resignation letter dated December 31, 2016 to Bowman, which the plaintiff had considered submitting to the Board, which was to remain private between the plaintiff and Bowman. The plaintiff told Bowman not to act on the letter. At the same time, the plaintiff formally submitted a letter dated January 21, 2017, to Bowman in which he requested a voluntary leave of absence from the membership of the club pursuant to Article IX, Section 3 of the defendant’s bylaws. The plaintiff verbally told Bowman that he was formally submitting the letter requesting a voluntary leave of absence and did not want to resign from the club. Bowman informed the plaintiff that she called a board meeting to announce his resignation. The plaintiff reiterated that he had not resigned and instructed Bowman to inform the Board that he wished to take a leave of absence. Previously, Bowman told the plaintiff that if he ever showed her another resignation letter, then she would act on it regardless of the plaintiff’s intentions. Bowman informed the plaintiff that the Board had accepted his resignation from SHYC at the January 24, 2017 board meeting.
On January 26, 2017, the plaintiff informed the Board by email that he had neither submitted a resignation letter nor had he verbally resigned; rather, he had asked Bowman to convey to the Board his desire to take a leave of absence. The plaintiff requested the Board to reverse this error and to restore his status as an active member of SHYC. The plaintiff received a letter from the treasurer of the defendant on January 31, 2017, acknowledging, that the Board had accepted the plaintiff’s resignation. The Board "unlawfully expelled" the plaintiff from SHYC because the Board failed to follow Article IX, Section 3 of the bylaws.
On May 16, 2018, the defendant filed a motion for summary judgment. In support of its motion, the defendant submits the following evidence: (1) a copy of the defendant’s amended and restated bylaws; (2) a copy of a resignation letter dated December 31, 2016 that is signed by the plaintiff and Elizabeth Knope (Knope); (3) an excerpt of the plaintiff’s responses and objections to the defendant’s request for admission; (4) excerpts of the certified deposition transcript of Abigail Kunath Park (Park), member of the Board of Governors of SHYC; (5) excerpts of the certified deposition transcript of Bowman; (6) excerpts of the certified deposition transcript of William Hargreaves, member of the Board; (7) excerpts of the certified deposition transcript of Jonathan Collins (Collins), member of the Board; (8) excerpts of the certified deposition transcript of Richard Cole (Cole), member of the Board; and (9) a copy of a leave of absence letter dated January 21, 2017, which is signed by the plaintiff and Knope.
On June 8, 2018, the plaintiff filed a memorandum of law in opposition to the defendant’s motion for summary judgment. In support of his opposition to the defendant’s motion, the plaintiff submits the following evidence: (1) the certificate of incorporation establishing the defendant as amended; (2) a copy of the defendant’s bylaws; (3) excerpts of the certified deposition transcript of Bowman; (4) excerpts of the certified deposition transcript of the plaintiff; (5) excerpts of the certified deposition transcript of Knope; (6) excerpts of the certified deposition transcript of Park; (7) excerpts of the certified deposition transcript of Cole; (8) a copy of an email sent by Bowman to Cole dated July 24, 2016; (9) excerpts of the certified deposition transcript of Hargreaves; (10) a copy of an email sent by the plaintiff to the Board and Ursula Kmetz (Kmetz) dated January 26, 2017; (11) excerpts of the certified deposition transcript of Collins; and (12) excerpts of the certified deposition transcript of Katherine Davis Canning.
In response to the plaintiff’s memorandum in opposition, the defendant filed a reply memorandum of law on June 22, 2018. The defendant submitted the additional following evidence in support of its motion: (1) an excerpt of the certified deposition transcript of Park; (2) an excerpt of the certified deposition transcript of Hargreaves; (3) excerpts of the certified deposition transcript of Cole; (4) excerpts of the certified deposition transcript of Kmetz; (5) excerpts of the certified deposition transcript of Stephen Singer (Singer), Board member; and (6) excerpts of the certified deposition transcript of the plaintiff. The court heard oral argument on the defendant’s motion for summary judgment at short calendar on August 6, 2018.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Bozelko v. Papastavros, 323 Conn. 275, 282, 147 A.3d 1023 (2016). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which ... entitle him to a judgment as a matter of law ... A material fact is one that will make a difference in the result of the case." (Internal quotation marks omitted.) Stuart v. Freiberg, 316 Conn. 809, 821, 116 A.3d 1195 (2015). "In summary judgment, the court’s role is not to weigh the credibility of the parties, which falls within the province of the finder of fact ... When a court, in ruling on a motion for summary judgment, is confronted with conflicting facts, resolution and interpretation of which would require determinations of credibility, summary judgment is not appropriate." (Citation omitted.) Straw Pond Associates, LLC v. Fitzpatrick, Mariano & Santos, P.C., 167 Conn.App. 691, 710, 145 A.3d 292, cert. denied, 323 Conn. 930, 150 A.3d 231 (2016).
The defendant moves for summary judgment on the ground that there is no genuine issue of material fact that the defendant did not violate its bylaws with regard to the plaintiff’s leave of absence because at the time the leave of absence letter was submitted, the plaintiff was not a member of the SHYC because he had delivered a signed and dated resignation letter to Bowman, which was effective upon receipt. The plaintiff responds that there remains a genuine issue of material fact as to whether the plaintiff resigned his SHYC membership on January 24, 2017, because there is conflicting testimony as to what transpired on January 24, 2017, and other evidence submitted shows it was not the plaintiff’s intent to resign.
"[C]ourts should be reluctant to intervene in the affairs of private clubs ..." (Internal quotation marks omitted.) Sterner v. Saugatuck Harbor Yacht Club, Inc., 188 Conn. 531, 537, 450 A.2d 369 (1982). "The primary exception to the general rule occurs when a member of a club has been ... expelled in violation of the club’s bylaws." Williams v. Black Rock Yacht Club, 90 Conn.App. 27, 33, 877 A.2d 849, cert. denied, 276 Conn. 908, 886 A.2d 424 (2005). General Statutes § 33-1056(a) provides that: "Membership shall be governed by such rules of admission, retention, withdrawal and expulsion as the bylaws shall prescribe, provided all such bylaws shall be reasonable, germane to the purposes of the corporation, and equally enforced as to all members." "A club ... is required only to make a good faith effort to apply its rules equally concerning admission." Williams v. Black Rock Yacht Club, supra, 39.
In support of its motion for summary judgment, the defendant submitted an excerpt of the plaintiff’s responses and objections to the defendant’s request for admission, in which the plaintiff admits that he handed a signed letter of resignation dated December 31, 2016, which was effective January 1, 2017, to Bowman on January 24, 2017. The defendant also submitted a copy of its bylaws. Article IX, Section 3 of the bylaws provides, in relevant part: "Any member who submits his/her resignation to the Board of Governors prior to January 1 of any year shall not be liable for annual dues payable for that year, provided that his/her account with the Club in other respects shall have been paid in full." The copy of the bylaws submitted by the defendant do not provide a specific procedure for how a resignation is processed by the Board. The defendant submits other evidence as to how a resignation is processed. Specifically, Bowman stated in her deposition that it has been the Board’s practice since 2012, that a resignation is effective upon receipt. In his deposition, Cole stated that a resignation received by anyone in the club is effective immediately. Cole further stated that "effective" means that no further action is required of the Board to make it effective. Hargreaves stated in his deposition that this has been the practice since SHYC was founded in 2002. Singer stated in his deposition that resignations do not need to be acted upon and that "they just happen." Kmetz, in her deposition, stated that all resignations are effective at the time they are received. Collins, in his deposition, stated that a resignation from SHYC is effective upon receipt, but if a member has paid their annual membership dues through the end of a given year, then a resigning member can still avail themselves of the club’s opportunities.
The defendant, however, has also submitted evidence that undermines its contention that a letter of resignation is effective upon receipt. In the excerpt of the plaintiff’s responses and objections to the defendant’s request for admission, the plaintiff admits that he hand-delivered two signed letters of resignation to Bowman. In his deposition, Cole stated that his understanding was that the plaintiff provided Bowman another letter of resignation on January 11, 2017, but was not effective upon receipt. Cole further stated that the letter of resignation handed to Bowman on January 11, 2017, was not effective upon receipt because the plaintiff told Bowman that it was not his intention to resign at that time and to not treat the letter provided on January 11, 2017, as an effective resignation. In Kmetz’s deposition, she stated that there was no formal vote but the Board "agreed that we would accept " the plaintiff’s resignation by sending a letter. (Emphasis added.) Hargreave stated in his deposition that the "conclusion" of the special January 28, 2017 board meeting was to "accept the resignation letter." (Emphasis added.)
Moreover, in Park’s deposition, she stated that a resignation is implemented as described in a received letter of resignation. Park further stated that a list of SHYC members who had tendered resignation letters is typically presented to the Board at its monthly meetings. Hargreave stated that a special meeting was held to discuss the plaintiff’s letter of resignation. Park also stated that the Board sometimes discussed trying to convince the members who tendered resignation letters to reconsider their resignation. In addition, Park stated at least one member who tendered a resignation reconsidered their resignation and did not resign. Cole stated in his deposition that he was not aware that the Board had any practice of trying to convince members who had resigned from SHYC to remain. But Cole also stated that if the Board became aware that a particular person had resigned, someone on the Board who knew that person, and could think of no reason why that person "should have resigned," would volunteer to talk to that person and see if he or she would be interested in continuing their SHYC membership. Cole further stated that this was "episodic and ad hoc" and was not organized. Thus, given the conflicting evidence presented as to what transpired on January 24, 2017, and the "episodic and ad hoc" description by Cole, of part of the resignation procedure, the court cannot conclude from the evidence submitted that no genuine issue of fact exists that the plaintiff resigned his SHYC membership.
The evidence the defendant submits presents two conflicting alternatives. On the one hand, if a resignation is effective upon receipt as the defendant contends, then that resignation letter may control when presented concurrently with a leave of absence request. If, however, a resignation is not effective upon receipt, then the requirement that the Board must vote on whether to accept or reject a leave of absence request, which is contained in Article IX, Section 3 of the submitted bylaws, may not have been adhered to by the defendant. Resolving this issue is critical in determining whether the Board, in good faith, followed its bylaws with regard to the plaintiff’s leave of absence. § 33-1056(a); Williams v. Black Rock Yacht Club, supra, 90 Conn.App. 39. But in order to resolve this evidentiary conflict, the court would be required to weigh conflicting evidence and may need to make credibility determinations, which the court cannot do when deciding a motion for summary judgment. Straw Pond Associates, LLC v. Fitzpatrick Mariano & Santos, P.C., supra, 167 Conn.App. 710. Thus, the defendant has failed to submit evidence that shows there is no genuine issue of material fact it followed its bylaws with respect to the plaintiff’s leave of absence because the defendant has submitted conflicting evidence as to whether a resignation is effective upon receipt.
CONCLUSION
For the foregoing reasons, the defendant’s motion for summary judgment is denied.