No. 95-L-171. | Ohio Ct. App. | Jul 1, 1996
Lead Opinion
Plaintiff-appellant Albert C. Nozik appeals the judgment of the Mentor Municipal Court dismissing his complaint against defendants-appellees, Mentor Lagoons Yacht Club et al. ("Yacht Club" or "appellees"). For the reasons that follow, we affirm.
The facts of this case originate from a judgment entered by the Lake County Court of Common Pleas, and affirmed by this court, ordering the dissolution of Mentor Lagoons, Inc. ("Mentor Lagoons"). The dissolution was ordered because of a deadlock between the directors and shareholders of Mentor Lagoons. SeeNozik v. Mentor Lagoons, Inc. (May 6, 1994), Lake App. No. 93-L-057, unreported, 1994 WL 188904. To carry out its order, the Lake County Court of Common Pleas appointed Theodore J. Dalheim as receiver to continue operating the corporation's affairs and to file a report with the court every three months until an appropriate dissolution could be completed.
Since that decision, an ongoing dispute between the receiver and appellant, who was a fifty-percent shareholder of Mentor Lagoons, developed. Appellant filed two civil rights actions under Section 1983, Title 42, U.S. Code, one in federal court and one in state court, alleging that, in violation of his constitutional rights, he was denied access to any property owned by Mentor Lagoons. Appellant's claims were based on statements allegedly made to him by Dalheim that appellant would be arrested and prosecuted for trespass should he, or anyone acting on his behalf, enter property owned by the corporation. Both the federal and state courts held that jurisdiction over appellant's claim and the actions of Dalheim rested exclusively in the pending receivership case. Nozik v. Dalheim (Aug. 31, 1993), N.D. Ohio No. 1:93CV1458, unreported; McDonald v. Dalheim (Jan. 14, 1994), Lake C.P. No. 93CV001325, unreported.
In these civil rights actions, appellant claimed, in part, that he was denied access to the clubhouse of the Yacht Club, facilities that appellees leased from Mentor Lagoons. Appellant apparently had been an honorary member of the Yacht Club for over twenty years. As an honorary member, appellant had no voting rights, no rights to hold office, and no financial obligation for club dues or assessments.
In a letter dated February 24, 1995, appellant requested from appellees the following records: (1) all of the minutes from meetings of the Yacht Club, (2) all of appellees' financial records, (3) complete membership records of the Yacht *323
Club, and (4) a mailing list. When appellees did not produce the records appellant requested, appellant filed a complaint and, later, an amended complaint. These pleadings sought, pursuant to R.C.
In response to appellant's complaint, appellees filed, as one of many motions filed by both parties, a motion to dismiss or, in the alternative, a motion for summary judgment. In this motion, appellees argued that judgment should be entered in their favor because appellant's true controversy rested with a necessary party who could not be joined to that action: the receiver of Mentor Lagoons, who had not allowed appellant onto the Yacht Club's facilities. Furthermore, appellees argued that, pursuant to R.C.
On October 3, 1995, the trial court held a hearing on the various motions filed by the parties. At the hearing, the trial court repeatedly asked appellant what his purpose was in requesting roughly thirty years' worth of the club's financial and membership records. Although acknowledging that it was the actions of Dalheim, and not appellees, that had prevented appellant access to the property where the clubhouse was located, appellant stated that he wished to view the records to determine why he had been excluded from the club that he had created and in which he holds an honorary membership. Furthermore, appellant stated that he had a right to check the records requested to confirm rumors, allegedly told to appellant by some unnamed source, that appellant had had his honorary membership revoked without notice or an opportunity to be heard.
At the hearing, the trial court queried whether a court order requiring the Yacht Club to keep appellant abreast of the club's activities would resolve the controversy alleged in his complaint. Appellant responded that he would not be amenable to such an order because he still would be unable to enter the clubhouse due to the threats made to him by Dalheim. Furthermore, in spite of appellees' stipulation on the record that appellant was still a member of the Yacht Club, and an offer to have the trial court verify this fact through an in camera *324 inspection of the records requested, appellant refused to accept that he had not been expelled from the club.
In a judgment entry filed October 5, 1995, the trial court granted appellees' motion to dismiss and overruled all other motions then pending before the court. In granting appellees' motion to dismiss, the trial court ruled that appellant was not a proper person to invoke R.C.
From this judgment appellant filed a timely notice of appeal and, in four assignments of error, challenges the trial court's order dismissing appellant's complaint. Due to overlap in the arguments presented in appellant's multiple assignments of error, they will be discussed together.
Initially, we note that both parties, in their briefs to this court, acknowledge that the trial court could have considered appellees' motion to dismiss as a motion for summary judgment. In fact, in support of their motion to dismiss or in the alternative motion for summary judgment, appellees attached evidentiary materials outside the pleadings. Thus, although the trial court's judgment entry indicated that it was granting appellees' motion to dismiss, we conclude that the trial court actually granted appellees' motion for summary judgment. InState ex rel. Baran v. Fuerst (1990),
Civ.R. 56(C), providing the standard governing motions for summary judgment, states that:
"Summary judgment shall be rendered forthwith if the pleading, depositions, answers to interrogatories, written admissions, affidavits, transcripts of evidence in the pending case, and written stipulations of fact, if any, timely filed in the action, 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. No evidence or stipulation may be considered except as stated in this rule. A summary judgment shall not be rendered unless it appears from such evidence or stipulation and only therefrom, that reasonable minds can come to but one conclusion and that conclusion is adverse to the party against whom the motion for summary *325 judgment is made, such party being entitled to have the evidence or stipulation construed most strongly in his favor. * * *"
In construing Civ.R. 56(C), the Supreme Court of Ohio has stated that the moving party bears the burden of establishing that (1) there is no genuine issue as to any material fact, (2) the moving party is entitled to judgment as a matter of law, and (3) reasonable minds, construing the evidence in favor of the nonmoving party, can come to but one conclusion, and that conclusion is adverse to the party opposing the motion.Harless v. Willis Day Warehousing Co. (1978),
Appellant argues that the trial court erred in denying him access to appellees' nonprofit corporate records. Appellant contends that he had an absolute right to these records pursuant to R.C.
"[A]ll books and records of a corporation, including the membership book prescribed by section
In its decision to grant appellees' motion, the trial court held that, as an honorary member, appellant held no practical rights within the club and, furthermore, could be stripped of said membership at any time. While we agree with the result reached by the trial court, we decline to accept the trial court's analysis in reaching its decision.
R.C.
A thorough review of the record in the case sub judice
reveals that appellant is trying to have it both ways in an effort to open up appellees' books. Before this court, appellant has argued that he is a member of the Yacht Club and therefore entitled to review its books pursuant to R.C.
Accordingly, appellant's assignments of error are without merit.
Finally, appellees ask this court to award them reasonable attorney fees, pursuant to App.R. 23, which states that "[i]f a court of appeals shall determine that an appeal is frivolous, it may require the appellant to pay reasonable expenses of the appellee including attorney fees and cost." A frivolous case under App.R. 23 has been defined as presenting no reasonable question for review. Danis Montco Landfill Co. v. Jefferson Twp.Zoning Comm. (1993),
Based on the foregoing, we affirm the judgment of the trial court.
Judgment affirmed.
NADER, J., concurs.
CHRISTLEY, P.J., concurs separately.
Concurrence Opinion
I disagree with the majority's opinion that appellant's status as an honorary member is equivalent to the use of the word "member" in R.C.
Other than that, I concur with the majority's holding and the balance of its opinion.