Thomas Swonke and Christopher Goodrich v. First Colony Community Service Association, Inc.

Motions for Rehearing Overruled and Supplemental Memorandum Majority Opinion and Memorandum Concurring Opinion on Rehearing filed on September 16, 2010.

In The

Fourteenth Court of Appeals

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NO. 14-09-00019-CV

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Thomas Swonke and Christopher Goodrich, Appellants

V.

First Colony Community Services Association, Inc., Appellee

On Appeal from the 400th District Court

Fort Bend County, Texas

Trial Court Cause No. 07-CV-160602

SUPPLEMENTAL MEMORANDUM MAJORITY OPINION ON REHEARING

We deny the motions for rehearing.  The purpose of this supplemental opinion is to briefly respond to concerns raised in the concurring opinion on rehearing.

The concurrence first notes that the record before us does not contain a copy of any board of directors’ resolution creating the nominating committee.  There is indeed no evidence in the summary judgment record that there exists any board resolution setting out rules for the nominating committee.  In its motion for rehearing, the Association cites specifically to Article V, Section I of the bylaws wherein it provides that the board may adopt resolutions creating committees that shall have duties and powers in accordance with the respective resolution and “shall operate in accordance with the terms of the resolution.”  The nominating committee, however, was not originally created by the board under the authority of Article V.  Instead, it was expressly created by Article III of the bylaws, which itself explains the nominating committee’s basic duties, powers, and procedures.  It therefore appears that the nominating committee was not intended to be governed by board resolution under Article V as the Association and the concurrence suggest.  Furthermore, the Association raises the prospect that there may be a resolution governing notice for the first time in its appellate motion for rehearing.  This argument was therefore waived.  AVCO Corp., Textron Lycoming Reciprocating Engine Div. of AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 676 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).

Next, the concurrence suggests that emailed notice was proper notice of the nominating committee meeting.  This issue was not raised in the Association’s motion and is discussed and resolved in the original opinion.

The motions for rehearing are denied.

                                                                        /s/        Adele Hedges

                                                                                    Chief Justice

Panel consists of Chief Justice Hedges, Justice Anderson, and Senior Justice Mirabal.[1] (Mirabal, J. concurring.)

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[1] Senior Justice Margaret Garner Mirabal sitting by assignment.