January 7, 2010
In the on-going lawsuit against the Tellico Village Property Owners Association, filed July 21, 2009 by Dan Hutcherson and Richard Anklin, the TVPOA on October 12, 2009 filed a Motion for Summary Judgment to have Mr. Anklin removed from the lawsuit siting the following arguments:
(1) Mr. Anklin did not follow the TVPOA's Document Access Rules, provided by Paragraph 6, by not appealing the General Manger's decision to reject his Document Access Requests within the thirty (30) days of that decision to the Board of Directors, and
(2) Mr. Anklin bypassed the TVPOA's mandatory administrative procedures and filed the present lawsuit seeking disclosure of the records in his previous requests. Additionally, on Oct 12, 2009, the attorneys representing the TVPOA, Mr. C. Coulter Gilbert and Mr. Kevin Stevens, filed two briefs with the court supporting the TVPOA's Motion for Summary Judgment which contained nine (9) pages of arguments - citing case law with one court case dating back to 1938, i.e., “that Mr. Anklin did not exhaust his administrative remedies”. The hearing for this Motion was scheduled for December 3, 2009. However, upon agreement between the parties it was rescheduled to January 7, 2010.
At the Chancery Court hearing today on that Motion, the TVPOA's Attorney's, specifically Mr. Kevin Stevens, argued on behalf of the TVPOA that Mr. Anklin gave up his rights to be part of the lawsuit because [a] he failed to exhaust his administrative remedies and, [b] that his legal counsel failed to respond five (5) days prior to this hearing.
The Honorable Frank V. Williams listened to Mr. Stevens arguments and to the counter claims of plaintiffs attorney, Scott McCluen. Mr. McCluen argued that the case law sited by the TVPOA's Attorney was not appropriated or relevant because it pertained to a "commission or board created by legislative power" within the
meaning of the doctrine of "exhaustion of administrative remedies". Plaintiffs attorney, McCluen, further argued that it is clear by its language "The right of inspection granted by this section may not be abolished or limited by a corporations charter or by-laws.... as sited by Tennessee Law (Tenn. Code Anno. 48-66-102)".
Upon hearing arguments from both sides, the Honorable Frank V. Williams "denied" the TVPOA's Motion forSummary Judgment.