Opinion
NO. 2012-CA-001056-MR
01-31-2014
EDWARD H. FLINT APPELLANT v. COACH HOUSE INC.; MARGARET WRIGHT; SHIRLEY SERGEANT; KATHLEEN WINE; LINDA HILL; JEANIE MCCULLOUGH; DON WILCOX; MULLOY PROPERTIES INC.; JOAN DOUGHTEN; JANE DOES; AND JOHN DOES APPELLEES
BRIEFS FOR APPELLANT: Edward H. Flint, pro se Louisville, Kentucky BRIEF FOR APPELLEE: Robert T. Watson Chris J. Gadansky Louisville, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE MARY M. SHAW, JUDGE
ACTION NO. 12-CI-001614
OPINION
AFFIRMING
BEFORE: ACREE, CHIEF JUDGE; CAPERTON AND NICKELL, JUDGES. NICKELL, JUDGE: Edward H. Flint, pro se, has appealed from the Jefferson Circuit Court's entry of summary judgment on his claims against Coach House, Inc.; individual members of its board of directors, Margaret Wright, Shirley Sergeant, Kathleen Wine, Linda Hill, Jeanie McCullough, Don Wilcox, Joan Doughten (hereinafter "Board"); Mulloy Properties, Inc.; and unknown defendants (hereinafter collectively "Coach House defendants"). After reviewing the record, the briefs and the law, we affirm.
Although proceeding pro se, Flint is not inexperienced in the realm of litigation and appellate practice, having filed and prosecuted numerous lawsuits, including three previous actions against Coach House; several against various judges of state and federal courts; the Governor; administrative cabinets and departments; and several more against businesses including Hewlett-Packard Co., Target Corp., MetLife Insurance Co., Churchill Downs, Inc., and the New York Stock Exchange, among others. These cases have been practiced at all levels of the state and federal courts, including several trips to the Supreme Court of Kentucky and the United States Supreme Court. As noted by Judge Charles R. Simpson, III, in an opinion rendered earlier this year in one of Flint's cases, "[t]o say that Flint is an experienced litigator despite his pro se status would be an understatement." Flint v. McDonald, 3:12-CV-613, 2013 WL 211077, Slip op. at *3 (W.D. Ky. January 18, 2013).
The Master Deed and By-Laws for Coach House vest the direction and administration of the property on behalf of the unit owners in a board of directors referred to as the "Board of the Council" whose seven members are elected from among all unit owners. The terminology results from use of the term "Council" in the Master Deed and By-Laws to refer to Coach House, Inc., a non-profit corporation, having a membership comprised of all unit owners. For purposes of this appeal, to avoid confusion of the issues, we shall use the generic term "Board" to refer to the administrative body.
Flint's complaint references "Jane Does" and "John Does" in the style of the case. His complaint is devoid of further mention of these unknown persons.
Flint owns a condominium unit located within Coach House Condominiums in Jefferson County, Kentucky. The development consists of sixty-eight individual units. The Board is charged with creating an annual budget, maintaining financial records, hiring a manager or management firm, contracting for maintenance services, creating general rules regarding operation of Coach House, and other responsibilities. Mulloy Properties is the property management firm hired by the Board. At the Board's February 20, 2012, meeting, a proposal was introduced to change the format of Board meetings from open to a mixture of open and closed meetings. The change was completed at a subsequent meeting convened on March 14, 2012. Under the new rule, four meetings per year would be open to all unit owners and the remaining eight meetings would be closed.
Aggrieved by the Board's action, Flint filed the instant suit on March 20, 2012, asserting the decision to foreclose attendance at eight Board meetings by unit owners constituted a violation of Coach House's by-laws. Flint sought injunctive, compensatory and punitive relief. The Coach House defendants answered the complaint in a unified pleading asserting multiple general and specific defenses. Flint subsequently filed a motion seeking a specific injunction prohibiting the Board from excluding the unit owners from its meetings, and an additional motion seeking a ruling on the meaning of a provision in the Coach House by-laws pertaining to inspection and copying of Coach House's business records. The Coach House defendants moved for summary judgment.
Following a hearing on May 3, 2012, the trial court denied Flint's motion for an injunction, found the motion for interpretation of Coach House's by-laws to be moot, and granted summary judgment in favor of the Coach House defendants. This appeal followed.
Flint's claims of error are not presented in the customary fashion; his specific legal claims are intertwined with his general allegations and are presented in a narrative form as a series of complaints. This format creates some difficulty for this Court—as well as opposing counsel—who must attempt to construe Flint's pleadings liberally and decipher the legitimate legal arguments while separating out the general prose. As we can best determine, Flint contends genuine issues of material fact existed precluding the trial court from granting summary judgment in favor of the Coach House defendants. He further contends the trial court erred in denying his motion for an injunction, determining his motion to interpret the bylaws was moot, and failing to rule on all issues presented in his complaint.
Summary judgment is a device utilized by courts to expedite litigation. Ross v. Powell, 206 S.W.3d 327, 330 (Ky. 2006). It is deemed a "delicate matter" because it "takes the case away from the trier of fact before the evidence is actually heard." Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 482 (Ky. 1991). In Kentucky, the movant must prove no genuine issue of material fact exists, and he "should not succeed unless his right to judgment is shown with such clarity that there is no room left for controversy." Id. The trial court must view the evidence in favor of the non-moving party. City of Florence v. Chipman, 38 S.W.3d 387, 390 (Ky. 2001). Steelvest originally held the test would include the phrase "impossible" for the non-moving party to prevail at trial. The Supreme Court of Kentucky later clarified that the word "impossible" was "used in a practical sense, not in an absolute sense." Perkins v. Hausladen, 828 S.W.2d 652, 654 (Ky. 1992). The non-moving party must present "at least some affirmative evidence showing the existence of a genuine issue of material fact[.]" Chipman, 38 S.W.3d at 390.
Contrary to Flint's assertion that "thousands of cases have ruled that it means absolute," "impossible" has consistently been applied in a practical sense in numerous published and unpublished opinions dealing with the issue. We are unable to locate even a single holding consistent with Flint's position, and he cited none to us.
On appeal, our standard of review is "whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law." Scifres v. Kraft, 916 S.W.2d 779, 781 (Ky. App. 1996). Furthermore, because summary judgments do not involve fact-finding, our review is de novo. Pinkston v. Audubon Area Community Services, Inc., 210 S.W.3d 188, 189 (Ky. App. 2006). With these standards in mind, we turn to the allegations of error presented.
Flint's primary area of concern, both in the trial court and before this Court, centers on the decision to alter the Board's meetings from completely open to a mixed schedule which included multiple closed sessions. Flint argues the decision is contrary to the by-laws and alleges the trial court erred in not so finding. We disagree.
The initial and fatal error in Flint's argument rests in his belief that the Council and the Board are the same entities. They are not. The by-laws specifically refer to two separate and distinct bodies, the Council—comprised of all owners of condominium units—and the Board—comprised of seven members elected from and by the Council. This distinction is crucial to the proper analysis of Flint's claims as all of his assertions require interpretation of the language contained in the by-laws.
Under the specific language of the by-laws, during its required annual meeting, the Council must elect the entire Board by popular vote to serve for the forthcoming year. In reference to meetings of the Board, the by-laws contain a single provision which states:
A regular annual meeting of the Board shall be held immediately after, and at the same place as, the annual meeting of the Council. Other meetings of the Board may be called, held, and conducted in accordance with such regulations as the Board may from time to time adopt.Although meetings of the Council and notice requirements regarding same are discussed further in the by-laws, no other provision of the by-laws discusses Board meetings.
The by-laws contain explicit instructions for meeting locations and notice requirements. However, under the clear and unambiguous language of the by-laws, these provisions apply only to meetings of the Council, not to meetings of the Board.
Clearly then, the Board has the express power and discretion to decide when and how to meet. Flint admits the Board is not required to meet, but argues that if it decides to meet, the proceedings must be open to all owners. While making an impassioned plea, Flint offers no legal support for his position and we are convinced none exists. The language of the by-laws is clear and unambiguous and as the trial court correctly determined, "open Board meetings are simply not required by Coach House by-laws." Contrary to Flint's assertions, the Board has neither changed nor attempted to change the by-laws; the Board has merely exercised the power granted to it by the by-laws.
When confronted with a properly supported summary judgment motion, Flint simply did not come forward with sufficient proof of a genuine issue of material fact, nor did he present evidence of a state of facts under which he could prevail. His understanding of the by-laws misses the key point that the Council and the Board are two totally separate and independent bodies. While Flint admitted at the summary judgment hearing that the Board did not, in fact, ever have to meet, he now complains because the Board does meet and he is foreclosed from attending some of those meetings. His position finds no support from the plain language of the by-laws, as the trial court correctly found.
Next, Flint contends the trial court erred in denying his motion for an injunction. We discern no error. As the trial court correctly noted, pursuant to CR 65.04, a temporary injunction will issue only where it is clearly shown a movant's rights are being or will be violated by the opposing party and immediate and irreparable harm will ensue absent a grant of extraordinary relief. Here, Flint asked the trial court to maintain the status quo of open meetings of the Board, but failed to show any substantial personal right being threatened. In the absence of impending harm, there was no legal basis for injunctive relief and thus, the trial court correctly determined it was without authority to issue an injunction.
Kentucky Rules of Civil Procedure.
Flint next alleges the trial court erroneously determined his motion to interpret certain provisions of the by-laws relating to inspection of records was moot. Again, we disagree.
Flint alleges the Board acted in violation of the by-laws in sending its financial and accounting records to Mulloy Properties for storage. He contends the records must be maintained at all times on Coach House property in the possession of the Treasurer and be available at any time or times for inspection by himself or any other interested party. Flint has raised the same assertions in previous litigation and obtained some of the sought-after records during the course of those proceedings. During the hearing of the instant matter, Coach House volunteered to provide Flint with the additional records for reasonable inspection. Thus, as Coach House agreed to give Flint the relief he sought, the trial court correctly determined it would be unnecessary to intervene or rule on the motion as additional relief was neither needed nor requested.
Next, Flint alleges the trial court's failure to rule on each allegation set forth in his complaint renders the grant of summary judgment infirm. Again, we disagree. Contrary to Flint's assertion, the trial court did, in fact, rule on all of the claims he raised when it determined genuine issues of material fact sufficient to overcome the motion for summary judgment did not exist. Although specific findings on each of the claims were not set forth in the order granting summary judgment, none were requested. It is axiomatic that absent such request a judgment shall not be overturned for the failure of a trial court to make findings of fact. See CR 52.04. Further, because the trial court was not given notice of the perceived error nor given an opportunity to rule on the matter, there is nothing for this Court to review. Kaplon v. Chase, 690 S.W.2d 761, 763 (Ky. App. 1985) (citing Payne v. Hall, 423 S.W.2d 530 (Ky. 1968)). There was no error.
Kentucky Rules of Civil Procedure.
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Flint generally misapprehends the nature and scope of the statutes he quotes in support of his arguments. This is an unfortunate downside for pro se litigants who are not versed in the science of the law. Flint's reading of the statutes is simply unsupported by generally accepted principles of statutory interpretation. The burdens and responsibilities Flint attempts to place on the Board are clearly not present in or required by the plain language of the statutes. Had the legislature intended such results, it could easily have written the statutes to say so. It did not and we are without power to add or subtract from the unambiguous words the legislative branch has chosen in enacting these statutes. While we understand Flint's position that open meetings and general transparency can act as barriers to the unchecked wielding of absolute power and control, the applicable statutes and provisions of the Coach House by-laws simply do not require the Board's meetings to be open nor closed; rather, that decision is left to the discretion of the Board. Flint's arguments to the contrary are without merit.
Finally, we believe it important to note that Flint makes several unsubstantiated, defamatory and derogatory accusations regarding corruption within the membership of the judiciary and the bar in an apparent attempt to garner support for his position. Such bluster, seeking only to vilify, discredit or agitate other participants, fails to address the substantive issues and provides no support for the Flint's position. It is therefore unnecessary, ineffective and offensive. These tactics will not be condoned or tolerated.
Therefore, for the foregoing reasons, the judgment of the Jefferson Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Edward H. Flint, pro se
Louisville, Kentucky
BRIEF FOR APPELLEE: Robert T. Watson
Chris J. Gadansky
Louisville, Kentucky