Opinion
No. COA03-691
Filed April 20, 2004 This case not for publication
Appeal by plaintiff from judgment entered 12 February 2003 by Judge William C. Griffin, Jr., in Beaufort County Superior Court. Heard in the Court of Appeals 1 March 2004.
Lee E. Knott, Jr., pro se, for plaintiff-appellant. Rodman, Holscher, Francisco Peck, P.A., by R. Brantley Peck, Jr., for defendant-appellee Poffenberger. Maureen Pulcini, pro se, for defendant-appellee Pulcini.
Beaufort County No. 02 CVS 832.
The present appeal arises from a dispute as to whether plaintiff (Lee E. Knott) is entitled to inspect the corporate records of the Humane Society of Beaufort County (Humane Society), a nonprofit corporation organized under the laws of North Carolina. Plaintiff appeals from a trial court order dismissing his claim to inspect the Humane Society's records pursuant to Rule 12 of the North Carolina Rules of Civil Procedure. We affirm in part and reverse in part. On 18 September 2002, plaintiff filed a complaint against defendants (Marty Poffenberger and Maureen Pulcini) in their individual capacities alleging, in pertinent part:
3. The plaintiff is a member in good standing of the Humane Society of Beaufort County.
4. The defendant Marty Poffenberger is Chairman of the Board of Directors of the Humane Society of Beaufort County.
5. The defendant Maureen Pulcini is Secretary of the Humane Society of Beaufort County.
6. On August 23, 2002 the plaintiff requested the defendant Maureen Pulcini to make available to him the minutes of certain meetings of the Board of Directors of the Humane Society of Beaufort County.
7. This request was denied by Maureen Pulcini on the grounds that she had been instructed by the Chairman of the Board of Directors of the Humane Society of Beaufort County that the minutes of the meetings of the Board were not to be made available to the members of the Humane Society of Beaufort County.
8. On August 26, 2002 the plaintiff mailed a written request to both defendants that all minutes of the meetings of the members and all minutes of the meetings of the Board of Directors held during the calendar years 2001 and 2002 be made available to him for inspection and copying and requested further that the defendants advise him of a time and place where he could inspect and copy said minutes.
9. The defendants have refused to comply with the aforesaid written request.
10. The refusal of the defendants to permit the inspection of the minutes is contrary to the provisions of the Bylaws of the Humane Society of Beaufort County and contrary to the provisions of the North Carolina Nonprofit Corporation Act.
Each defendant filed an answer and motions to dismiss pursuant to N.C.G.S. § 1A-1, Rule 12(b)(1), (6), and (7) on the grounds that (1) the superior court lacked subject matter jurisdiction, (2) plaintiff's complaint failed to state a claim upon which relief may be granted, and (3) the complaint failed to join a necessary party to the litigation. The trial court entered an order summarily granting the defendants' motions to dismiss "pursuant to Rule 12 of the Rules of Civil Procedure[.]" From this order, plaintiff appeals, making an argument as to each potential ground of dismissal.
We first address plaintiff's argument that the trial court erred if it dismissed plaintiff's claim for lack of jurisdiction. We agree with this contention.
"[T]he standard of review on a motion to dismiss under Rule 12(b)(1) for lack of jurisdiction is de novo." Country Club of Johnston County, Inc. v. United States Fid. Guar. Co., 150 N.C. App. 231, 238, 563 S.E.2d 269, 274 (2002). Pursuant to N.C.G.S. § 55A-16-04(a) and (b) (2003), "the superior court in the county where [a nonprofit] corporation's principal office . . . is located" has jurisdiction to permit inspection and copying of corporate records by a member who complies with the requirements of the Nonprofit Corporation Act. These provisions place subject matter jurisdiction to hear claims for inspection of the records of the Humane Society in the Beaufort County Superior Court. Accordingly, plaintiff's claim could not be properly dismissed for lack of subject matter jurisdiction.
We next address plaintiff's contention that the trial court erred in granting defendants' motion to dismiss plaintiff's claim pursuant to N.C.G.S. § 1A-1, Rule 12(b)(6) for failure to state a claim upon which relief may be granted. Plaintiff argues that his complaint alleges the following actionable claims: (1) an action to enforce the bylaws of the Humane Society, (2) an action to inspect the corporate records of the Humane Society pursuant to the common law, and (3) an action to inspect the minutes of the meetings of the membership and board of directors of the corporation under the North Carolina Nonprofit Corporation Act, N.C.G.S. § 55A-1-01, et seq. We conclude that plaintiff's claim states only a limited claim for inspection of the minutes of the Humane Society's membership meetings.
On a motion to dismiss pursuant to Rule 12(b)(6) of the North Carolina Rules of Civil Procedure, the standard of review is "whether, as a matter of law, the allegations of the complaint, treated as true, are sufficient to state a claim upon which relief may be granted under some legal theory." Block v. County of Person, 141 N.C. App. 273, 277, 540 S.E.2d 415, 419 (2000) (citation and quotation marks omitted). "The complaint must be liberally construed, and the court should not dismiss the complaint unless it appears beyond a doubt that the plaintiff could not prove any set of facts to support his claim which would entitle him to relief." Id. at 277-78, 540 S.E.2d at 419. "Dismissal of a complaint under Rule 12(b)(6) is proper when one of the following three conditions is satisfied: (1) when the complaint on its face reveals that no law supports plaintiff's claim; (2) when the complaint on its face reveals the absence of fact sufficient to make a good claim; (3) when some fact disclosed in the complaint necessarily defeats plaintiff's claim." Jackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745 (1986) (citation omitted).
With respect to plaintiff's contention that his complaint establishes a claim to enforce the bylaws of the Humane Society, plaintiff has not directed us to the legal basis for any such claim. The complaint states that "[t]he refusal of the defendants to permit the inspection of the minutes is contrary to the provisions of the Bylaws of the Humane Society of Beaufort County[.]" However, in his brief to this Court plaintiff has not propounded a legal theory, pursuant to which relief may be granted, for the alleged breach of the Humane Society's bylaws. Thus, plaintiff leaves to our conjecture whether his complaint sets forth a derivative claim for enforcement of the bylaws, a suit in contract, or some other action.
N.C.R. App. P. 28(b)(6) provides:
An appellant's brief . . . shall contain . . . [a]n argument, to contain the contentions of the appellant with respect to each question presented. . . . Assignments of error . . . in support of which no reason or arguments is stated or authority cited will be taken as abandoned. . . . The body of the argument shall contain citations of the authorities upon which the appellant relies.
Where a party has failed to cite any authority in support of one of its contentions, this Court has declined to consider the issue. Markham v. Nationwide Mut. Fire Ins. Co., 125 N.C. App. 443, 448, 481 S.E.2d 349, 352 (1997). Therefore, in the present case, where plaintiff has neither made any arguments nor cited any authority in support of his assertions that his suit to enforce the Humane Society bylaws is actionable, we decline to consider the issue.
With respect to plaintiff's argument that his complaint establishes a common law claim for inspection of corporate records, we conclude that the complaint is insufficient to make out such a claim.
The right of a shareholder to make inspections of corporate records under the common law has been formulated as follows:
A shareholder of a . . . private corporation, has, in the absence of statutory restriction, a common law right to inspect and examine the books and records of the . . . corporation at a proper time and place and for a proper purpose, and his right of inspection and examination is generally enforceable by mandamus proceedings against the . . . corporation and its officers or agents having charge of the books and records sought to be reached.
Cooke v. Outland, 265 N.C. 601, 610, 144 S.E.2d 835, 841 (1965) (emphasis added); see also Parsons v. Jefferson-Pilot Corp., 333 N.C. 420, 424-26, 426 S.E.2d 685, 688-89 (1993) (concluding that the model business corporation act preserves a shareholder's common law rights of inspection, "including the right to make reasonable inspections . . . of a public corporation for proper purposes").
Since the common law right of inspection and examination grows out of the shareholder's relationship to the corporation, and is given to him for the protection of his interests, it is generally recognized that the common law right is qualified by requiring that it be exercised in good faith for purposes germane to his status as a shareholder[.]
Cooke, 265 N.C. at 610, 144 S.E.2d at 841.
"Even at common law the writ of mandamus would not issue as a matter of course to enforce the mere naked right or to gratify mere idle curiosity, but it was necessary for petitioner to show some specific interest at stake rendering the inspection necessary, or some beneficial purpose for which the examination is desired."
Id. at 611, 144 S.E.2d at 842 (quoting 5 Fletcher, Cyclopedia Corporations, Per. Ed. § 2214). These common law principles have been used to provide guidance in claims governed by the Business Corporation Act; in the context of such a case, this Court held that where a shareholder states a proper purpose in his complaint, "[t]he burden of proof rests upon the [corporation], if [it] wishes to defeat the shareholder's demand, to allege and show by facts, if [it] can, that the shareholder is motivated by some improper purpose." Carter v. Wilson Constr. Co., Inc., 83 N.C. App. 61, 65, 348 S.E.2d 830, 832 (1986) (citation and quotation marks omitted).
We note that, in the instant case, the parties have not called our attention to, and we have not found, any authority which establishes a common law right of inspection for members of nonprofit corporations. However, assuming arguendo that the common law right of inspection applies to North Carolina nonprofit corporations, plaintiff's complaint does not effectively allege a common law inspection claim because it neither sets forth any proper purpose for the inspection plaintiff seeks to undertake nor states in boilerplate fashion that the inspection sought is, in fact, for a proper purpose.
With respect to plaintiff's contention that his complaint states a claim for relief under the Nonprofit Corporation Act, N.C.G.S. § 55A-1-01, et seq., we conclude that plaintiff's complaint states a claim for inspection of the minutes of meetings of the members of the Humane Society of Beaufort County, but does not state a claim for inspection of the minutes of the meetings of the Board of Directors of the organization.
N.C.G.S. § 55A-16-04(a) (2003) provides:
If a corporation does not allow a member who complies with G.S. 55A-16-02(a) to inspect and copy any records required by that subsection to be available for inspection, the superior court in the county where the corporation's principal office . . . is located may, upon application of the member, summarily order inspection and copying of the records demanded at the corporation's expense.
A member complies with N.C.G.S. § 55A-16-02(a) if he seeks to inspect "any of the records of the corporation described in G.S. 55A-16-01(e)" and if he "gives the corporation written notice of his demand at least five business days before the date on which [he] wishes to inspect and copy." N.C.G.S. § 55A-16-01(e)(4) includes "[t]he minutes of . . . membership meetings[.]"
N.C.G.S. § 55A-16-04(b) (2003) provides that
[i]f a corporation does not within a reasonable time allow a member to inspect and copy any other record, the member who complies with G.S. 55A-16-02(b) and (c) may apply to the superior court in the county where the corporation's principal office . . . is located for an order to permit inspection and copying of the records demanded.
N.C.G.S. § 55A-16-02(b) applies where a member seeks to inspect "[e]xcerpts from any records required to be maintained under G.S. 55A-16-01(a), to the extent not subject to inspection under G.S. 55A-16-02(a)[.]" The "minutes of all meetings of [a corporation's] . . . board of directors" are required to be maintained by a corporation under G.S. § 55A-16-01(a) and are not subject to inspection under G.S. § 55A-16-02(a). A member complies with N.C.G.S. § 55A-16-02(b) if he "gives the corporation written notice of his demand at least five business days before the date on which [he] wishes to inspect and copy" and "meets the requirements of subsection (c) of [G.S. § 55A-16-02.]" N.C.G.S. § 55A-16-02(c) provides that
[a] member may inspect and copy the records identified in [G.S. § 55A-16-02] subsection (b) . . . only if:
(1) The member's demand is made in good faith and for a proper purpose;
(2) The member describes with reasonable particularity the purpose and the records the member desires to inspect; and
(3) The records are directly connected with this purpose.
(emphasis added).
In the instant case, plaintiff's complaint alleges (1) plaintiff is a member of the Humane Society; (2) plaintiff requested in writing an opportunity to inspect the minutes of all membership and board of directors meetings held in 2001 and 2002; (3) plaintiff requested that defendants advise him of a time and place where he could inspect the minutes of these meetings; and (4)defendants refused to comply with this request. We conclude that these allegations are sufficient to state a claim for inspection of the minutes of membership meetings under G.S. § 55A-16-04(a).
However, plaintiff's complaint neither describes with reasonable particularity the purpose for the inspections sought, nor alleges that the records sought to be inspected are directly connected with such a purpose. Accordingly, plaintiff's complaint does not state a claim for inspection of the minutes of board meetings under G.S. § 55A-16-04(b).
Although plaintiff's complaint states only a claim for inspection of the membership meeting minutes of the Humane Society, the trial court erred in granting the defendant's motion to dismiss pursuant to G.S. § 1A-1, Rule 12(b)(6). Therefore, the order granting the dismissal must be reversed in part and this matter remanded for consideration of plaintiff's claim for inspection under G.S. § 55A-16-04(a).
Finally, we address plaintiff's argument that the trial court erred in dismissing his claim if it relied on failure to join a necessary party as the basis for dismissal. We agree with this contention.
Pursuant to N.C.G.S. § 1A-1, Rule 12(b)(7) (2003), a party may assert as a defense to a claim that a complaint fails to join a necessary party to the litigation. N.C.G.S. § 1A-1, Rule 19(a) (2003) provides that "those who are united in interest must be joined as plaintiffs or defendants[.]" Rule 19 requires that a "necessary party" be joined in the litigation; "[a] `necessary' party is one whose presence is required for a complete determination of the claim, and is one whose interest is such that no decree can be rendered without affecting the party." Godette v. Godette, 146 N.C. App. 737, 739, 554 S.E.2d 8, 9 (2001) (citation omitted). "The absence of parties who are necessary parties under Rule 19 of the Rules of Civil Procedure does not merit a dismissal." White v. Pate, 308 N.C. 759, 764, 304 S.E.2d 199, 202 (1983).
When the absence of a necessary party is disclosed, the trial court should refuse to deal with the merits of the action until the necessary party is brought into the action. Any such defect should be corrected by the trial court ex mero motu in the absence of a proper motion by a competent person.
Id. at 764, 304 S.E.2d at 202-03.
Applying these principles to the present case, we conclude that the trial court committed reversible error to the extent that it dismissed plaintiff's claim for failure to join necessary parties, without first seeking to have the necessary parties joined.
Affirmed in part, reversed in part, and remanded.
Chief Judge MARTIN and Judge TIMMONS-GOODSON concur.