.

IN THE S^=PREM^ COURT OF OHIO

State, Ex Re1. Hamid Salim, et a.1.9

Appellants,

vs.

.lx oux^l^° Ayed, et a1•,

/i % 001

% ^as- iss', i;;,• ,,s.i;:^/ ..ii' ci$i.!:^i

Appellees. %,...,, " ; . .,.; :, ,.. . . ,4S.

s_' :::

._. • ar

S.C. Case'Noe 2013W1.946

.A. Case No. 1 2,"+^^-^ ^6

Appeal frorri the Franklinnity Court of Appeals, l"enth)e11.a^e District

MERIT BRIEF OF APPELLAN'I`S ST'A`I'E, EX RF,L0 IIAMID SALIM, ET ALa

1=3 av1 d T. Ball (74007888; )(CO'IJNSE^ OF RECORD)Rosenberg & Ba1l Co.,LF'A395 North Pearl SiTe^tCTranvllie, Ohio 43023614.316.8222 telephone866.498.0811 facsimiledave.rlalawCoDgmagl.com

Fazee1 S. Khan (#0078875)Blaugrund,1-1erbert, :KesslergMlller, Myers Postalakis, Inc.3300 W. Wilson Bridge RoadSuite 100Wortlxlngtoyi, OH 43085614.764.0681 telephone614.764.0774 facsimilefsk@bhmlaw.com

I'^a-ryellen Coma Reash (44059851)(^OLTNSEI, OF R1^^ORD)Reash Law O.^".^ceso LLC ,1170 Old:Hencler^^^ RoadSuite 118Columbus, Ohio 43220614,44201323 telephone6140538-1^^^ facsarng1emereash1aw@gmailo^^m

Rateb Khasawneh (#0072424)Khasawneh & Associates, LLC1 l70 Old ^^^iderson Rd., Ste. 116Columbus, Obia 43220Tel^phone: (614) 459z6331Email: khasa^^^hr"gina1l,^orn

Attorneys for Appell^^ts9 State, ExRele Hamid Salim,:Kha1ed Khamees,Nihad Al Khalidi, Fouad ElFaour,Dina Y. Ali and Hagar Diab

Attorneys for Appelleeso Mounir Ayed,Ghassan Bin ^^mmamg Nasser Kashou,Qussai Marashdeh, and Noorgul Dada

TABLE OF ALj'"`I"HORI"1'IE, S

STATEMENT OF FACTS

7

7

^^ ^ ^^ ^ ^^o vv arranto,

^^LE OF CON'1EN'`S

^1€

1

ARGUMEN^

PMpasa^^^ of Law No. 1:

The Silence of R.C. § 2733a£11(A) Regarding, Who May Bringan Action in Quo Warranto To Cta1a^ an Office in an OhioCorporation Must Be Construed to Permit the PersonCIaama^^ Such Office to Bring Such Action on His or Her OwnRelation.

Pr^pos1tion oLLaw Noa I1°

R.C. § 2733n06 A^^^or^^s a Private Individual '`o Claim the"Publ1c Office" of Director of an Ohio Public BenefitCornorali^^ ^h-- -l^ rA it-, .1

27

.................... ........ .................... .._31

CERTIF'ICATE' OF SElZV1CE ------ ' --- 32

PrR22,sition of :1,aw .No« 111e

Th1s Court Should Treat Appellant's Action as a Request for aDirective, and Issue a Directive to the Ohio Attorney GeneralTo Bring a Quo Warranto Action Against Appellees o -----

CONCLLTSION'

APPENDIX

Notice of Appeal to the Ohio Supreme Court(December 1 2, 201 3)_ - -

Judgment Entry of the 1; ran1dan County Court of ^^^^^s(Nov^^iber 5, 2013) ............. ....... ...__...........

i.

ge^^R&.-Pa

............... -__-_...1

----------- ----------------------`1

Opinion of the 1^^anklin County Court of Appeals(November 5, 2013).-.._.._.. 5

STATUTES

R.C^ Chapter2733 __ 1 I

T^^LF, i^"F A'E1T^ORIT:CES

^arl,son v. Rabkin (Ohio Ct. App. 1 s'Dist. 2003),152 Obio App.3d 572_-.....

Cleveland Mobile Radio Sales, Inc. v. 1Ierlz€^^ Wireless. 113 OhioSt. 3d 394

Dayton Buileling &R^^^ings Ass'aa v. Kroeger (Oiiio Ct. Ap1?, 2d Disfio 1936),24 Ohio Law Abst. 14^

Devirie v. Detroit Trust (:`o. (1935), 52 Ohio.i^ppa 446...._

______________ ------ 10, 22

_--___.........._,135 16s 19

.----------- .....t ly 19, 23

--------------- ---- .-1 3

..............11y 23

--------- _ 225 23

............ 11,19,23

.._-____......_ _ ,fy 28

........................23

.........................1 3

--------- _a------- 20,21

---- -- -----------Global Launch, Inc. v. Wisehart (^^affldin Cty. Ct. C;omm.1l1s. 20 10),

156 Ohio Misc. 2d 1.

Groch v. f^en^ral.kfotor.^ Corp., (200Y)9 11.7 Ohio St. 3d 192

Hultman v. llr^^^comp (1855),5 Ohio St. 237 ----.-_ .... -.___ ...... .___ ..............

Masjid 0mar Ibn Ea Khatt^b Alosque v. Salini (1 0" Dist. (7t. App. 2014)2013 W1:, 334121 7.1-11 --- 11-1.1 ------ ------

Peace-US.A. v. Abbott (1988), 1988 Obao App. Ll;XIS 4598

Rice v. CertainTeed Corp. (1999), 84 Ohio Sto3d 417, 419 ,.. _. _. _ .. --_-_._.

State e.^ ^el. Annable v. Stoke,r (1 97(7); 24 Ohio St.2d 32.---__.__ ..__.... ...... ..._..--

,fitate ex rel Babione v. Martin (Ohio Ct. App. 6" Dist. 1994), 97 Ohio App.3d 539 - . _ ..10,22

State ex rel. Boyd v. Ward(2012), 132 O:^^io St. 90_______________..__.__________..___._______...____._______..-.__.______: M^4

State, ex rel. ^'aan v. Kay (1974), ^ ^ Ohio St. 2d 15.----......

State ex re1. Corrigan v, GreatNort^ern-Chan .^^stattrc^nt.; Inc. (Ohio Cta App,8`' Dist. 1982), 3 Ohio App.3d 355 1€^ 23.... .^.......... ---------------- _ _______ .... . ... . . . .. . . . .. . . . . _ ._. 7

State ex r^^l, Coyne v. Todia (1989), 45 OMo St. 3d 232--------- --------------------------- --------------------------^} 1€1

State e.^ ^^^ E. C^eve1's^nd.t^ ^^e Fighters ' Alssn. r Local 500. Int 7. Assn. ofFa^eFighters v. Jenkins (2002), 96 Ohio St. 3d 269

xii

9, 10, 209 21

State ex rel East Cleveland Democratic Club, Inc, i^ Babb (Ohio (:t. App.8" Dist. 1984), 14 Ohio AM.3sl 85 ---- - --------------- ---------------........_..._....._u.___._.._-___._..._.

S1ate ex x^el Hayes v. Jennings (1962), 173 01-do St. 370__._ .-. ... ....... ... .. ........ . .. . .. . . .. . . .. .. ... . .. . .. _. ...- 24

State ex rel: Hilltop Basic Resources. 1nc, j?. Cit)x of Cincinnati (2008),118 Ohio St. 3d 131

'Ytatc, ex reL Kemper v. Beecher '184 7), 16 Ohio 3 5 8

State ex re1, ^1cwhor°n v, Russell ((2005), 107 Ohio St. 3 s1. 269)-

'4ate, e.:^ ^eL Lindley v. Adoc* abees (1924), 1 09 Ohio Sf. 454

State ex rel MacDonald v. Shawnee Country Club (1965), 2 Ohio St. 2d 176

19

20, 21, 22, 23} 24

99 ^^

24

State ex rel, iVick v.Burke (1929), 120 Ohio St. 4 1 0---_..__....._..._____._......___._.,...._.___-.__.....__._-_-_._...___._._......^

State ex red. ^e we^',^ v. C, ity q,€'JacTrso.^ (2008)9 118 Ohio St. 3 d 13 8... ...... ... . .. ...... _-- ---....- -- ^4

State ar rel. Mort.^eastPrraperty Ow-ners (_:'Arac A,ss'n, inc, v .^en^^dj)(Ohio Ct. App. 8" D1^t.- 1961),117 Ohio ^pp, 79 .....__ 10, 23

Strah v. Lake f."^um^.t Hu^^^^^,';()caety (Ohio Cz. Alap, 11 °' .L)ist, 1993),90 Ohio App3d 822 . - ..____.-..._-.-_._____.^-------------

Strothers v, ,Norton (2012). 131 Ohio St. 3d 359

Summerville v. City of'Forest Park (201 Q), 128 Ohio St. sd 221

1 0, 22

---------- ______________12Th€sttipson v. Watson (1891), 48

Ohio St. 552----------- --- -- "'^- -- - - - ---._.^.^__...___....^ ..................:.^

1h8z{ea Societatilor Roma.^^^ Carpaxlneg of Cleveland v. Suba

(Ohio Ct. App• $" Dist. 1998), 1 "0 O1i€o App.3d 538 ------------ ----- - - ------------______________.10j 22

Veterans of Tf'orld War I v. Levy (Ohio Ct. App. 8Eh Dist. 1954), 118 NTI.2d 670 1^, '^^.............. . ....1='0i,V,ht Vo Voight (191 3), 2 Ohio App. 145

.................... 20

iv

^^^'ATUT^S :

General Code § 12303.._..^encral Code § 12304

----- _..-„__________........_.,..,______..___.._.......,__________._.....-

^`^enera1 Code §

R.C. § 1702.01_. .___R.C. § 1702.06 _-_--R.C. § 1702.11RX. § 1702.29

- - - - ----°_._...• ............. .......................R.C, § 1702.301

---°-----^ ...............^.^.^___-._,.^.^.^........_..._ _ ^R.C. § 1702.32R.C. § 1702,43

- ___^.^...^.^.---•----^.^.__-__-----_°__________________^._....R.C. § 1702.44 ...

- • - -R.C. § 1701462R.C. § 2733,01

- - -R.C. ----§ 2733.02....R.C. § 2733.04RX^ § 2733.05_______R.C. § 2733.06-___._

------- 16, 17g 1817; 18

---- ..17, 18, 19, 20

° ...... .............................e26-------- .,__ .............._._ _ _-____-__-._-_--_--___........-26

........... .............._ _. ___25------- ----........ . 25

-------- ____.....------ ---------- _ ... 25______________

26...... . ...... ..------ .___._----__... 26

2611,12,13,14}15,17, 18,20423,25

---------------------•-_..,,__._..._..17q 18, I9e 20, 27

_____________ _.. . . . . . _ .. 12, 1 3, 2011, 12, 13, 15Y 1.6, 20,24, 25, 26, 27

26 U.&C. § 501_...._.__26 ............^_^.-______ . 3

U.&C. § 509 ..- _.-.-______27

S'I`ATEMEN'I` ^F FACTS

This case arises o-€zt of a dispute over who lawfully ho1ds! the o^"i^^ of director of the

Board of Directors of Omar Ibn El KI-iattab Mosque, Inc. ("Omar imc^^que" or "the Mosque").

Appellants claim that they were lawfully elected as Directors at a special meeting held on. October

22, 2011. (Supp. 6). Appellees, the Mosque's initial board of directors ("initial board5')0 who

were appointed to hvo-year terms ending on December 31, 2009, have refused to recognize that

claim. (Supp, 2, 6)o

At the time thi.^ case ^m filed on April 20, 2012, Appellees claimed that they were still in

office, despite that their terms had expired over two years earlier, (Stipp. 6).

I'he c1ec-hon of Appellants to replace i-kppe1l^^s was the culmination. of a long series of

events in which the initial board defied the reqLfiaements of the Mosque's founding d^^^^^t the

wis1^^^ of its membership, and the requi^ements of the Ohio Revised Code.

The Mosque's founding document was a binding R^^ereiicl^ enacted in 2007 by its

predecessor organization, the Islamic Society of Ctreater Columbus C'1^^C"), (Supp. 1-2g 7). The

^eferenduira caffed for the Mosque to be incorpora^^^ as a separate n®n-profit entity. (supp, 2, 7).

The Mosque was duly incorporated as an Ohio ns3nwprofit corporation on June 21, 2007. (Supp. 2,

7).

'I'he :Referendum set alat an orderly process for the ^ovem;^^^ of the new entity, it

specified that Appellees were to serve as the inltial. b€^ardo foir terms ending after t-%Aro fall. ^eaxs i^

^fYis°.e; on December 31, 2009. (Supp. 2s 7). Within one month of their appointment, the initial

board was required by the Referendum document to create a process for persons to become

members of the Mosque. (Supp. 2, 7). The Referendum also required the initial board to prep^e a

I

"Constatutza^n and Bylaws to be ratified by its members of the Mosque no later than 12/31f2007.g"

(Supp, 2, 7),

Ujnf^rtunately9 the 1^tial board ^efied, its responsibilities under the terms of the

Referendum. The initial board refused to compile a membership list. (Supp. 3)o hi fact, wb.^^^ one

person (who had been an acth,re member of the Mosque community since 1993) requested an

opportunity to inspect the Mosque's corporat^ records as a member of the ^^^que, in October of

2011, more than four years after the membership process was supposed to have been created, the

lriitial board denied the request on the grounds that the Mosque had no ^emberso (Supp. 3, 23a25).

The initial board also failed to ^^^^am a Constitution and Bylaws, and to have it ratified by

its members by ^^^en-iber 31, 2007. (Supp. 2-3)o Only after a petition containing 76 signatures

was presented to the iiiitlal board on September 3. 2011, requesting a copy of the Mosque's bylaws

did the inifial board abruptly post a document purporting to be its Constitution and Bylaws on

^^^^^niber 6, 2011. (Supp. 28). '^^'^ was more than two and one-lalf years after the initial board

,was supposed to have prepared a Constitution aai^ Bylaws for ratification by the membership. This

abruptl^^^^^^ted document never was ratified by the ^^emb^^ship. (Supp. 3).

Tellingly, during °►b.eir term of office, the initial board never held any annual meetings.

(Supp. 3). Tb.c initial board did, in response to car^nungty pressure, fira.ly hold a "town b.all

meeting" c^ii ^^^^^inber 9, 2011. (^^pm 28). During that meeting, Appellee Ayed showed the

assembled group ^e Referendum that had appointed the lnitial. board, which informed 1heni for the

first time that Appellees' temis of office had expired nearly two years earlier. (Supp. 28). At the

tolArnhall mwangs Appellees refused ^^ commit to hold elections or to ^^^^^e a membership list, but

they did promise to inform the community =avhat they had decided to do in terms of elections and

2

membership by the following Friday, September 16, 2011. (Supp. 28M29). When no information

was forthcoming on that date, a cczneemed person who regularly attended the Mosque asked

Appellee Mareshdeh why the ^^^nnatlon had not been provided as ^^omlseda (Supp, 29).

Appellee Mareshdeh replied, 'Ve do not believe in eiections. I am ttie one Who convinced the

other board members that we should not have elections." (Supp. 29).

The next day, September 17, 2011, that same individual approached several others at ^^e

Mosque to sign a petition calling for director electlon,.^. (Supp. 29). Whc-n ^.ppe ll^eAyed 8aw

what he was doing, Appellee Ayed ^eaxeried to have laim affestd. (Supp. 29). The following

day, September 18, 2011, Appellee Dada announced that people should stop asking for elections,

saying that Appellees do not believe in elections, and that if anyone makes problems about

elections A;pell^^^ would ^all. the police on them. as they had done with ^t-hers in the past.

(Supp. 29).

Due to Appellee's explicit refusal to hold an cl^^fion to elect th^^ successors aRer the

expiration of their terms of office, a group of concem.ed individuals who regularly attended the

Mosque decided to bold a community meeting. (Supp. 29). That meeting was held on October 1,

2011, attended by 52 community members, (Supp. 4). At that m^^fingx some expressed the

desire to have elections immediately, but the consensus was that eIections should be held only

after ^^^^ernsstlce at a duly cafled special meeting. (S upp. 3 l).

This group called the special meeting pursuant to O.R.C. § 1702.12(A)(3), which

provides for special meetings to be called as follows, in ^ertinera^ part: `;(.^) Meetings of

voting members may be called by any of the following: . . :

3

(3) `1`be lesser of (a) ten per cent of the voting members or (b) ^^^nty9five of the voting members,

uniess the W.icles or the regulations specify for such purpose a smaller or larger proportion or

number, but not in excess of fifty per cent of tbe voting members...." A-ppe11ees" purported

Constitution does not "specify a smaller or larger proportion or nuniber,s" so under Sectlop.

1702,17 a speclal, meeting ma.^ be called by ^^enty-fi-vYe of the members of the mosque. '1'b.at is

what the gou.lZ of cop-cemed members of tlxe. mosque decided to do on October 1, 2011.

Due to the initial Board's failure to ra-a.alnWn a list o1`^embers, the group that was calling

the special meeting was unable to provide notice by regular mail. (Supp. 5). Nevertheless, the

commuiiity members did the best they could by personally delivering over 1,000 flyers at the

Mosque during its busiest periods, by posting notices, by taking out an ad in The Columbus

Dispatch and by persogially contactpns,=, everyone they could by telephone and ^mai.1. (Supp. 5, 31,

40). The organizers thus did what was required under the Mosque's purported Constitution and

By1aivs, notice "by the best conunwi€cat€on. possible: by phone, fax, letter, etc." (Supp. 20

(Section 10.2.6)).

'1'Iae iriitial board, in response, sought to frustrate the community members' organizing

activities by removing postings in the Mosque, confiscating w-ld destroying flyers, changing the

Niosqu^^s fax nuniber, altering email addresses of the initial board, and threatening the

organizers with physical violence and criminal prr^^^cut1ori. (Supp. 5). Appellee Ayed went so

far as to file a complaint with the Columbus City Prosecutor seeking to have tlree of ^.^e

organizers (none of whom stood for election) charged with trespassing because of their support

for the e:(ectlon. (Supp. 5). (Those charges were later dismissed for lack of probable cause.

(Supp. 34)).

4

Those calling the special. meeting circulated a Notice of Meeting im.rxtirag all menibcr^ of

the Mosque community to a special meeting regYding membership, election and by1aws. (Supp.

5, 8). The '[!(otice was distributed on a timely basis before October 12, 2011, and identified the

place, date and time of the meeting. (Supp. 8).

^e-ventyrnine people attended the special meeting on October 22, 2011. (^tipp. 5). The

meeting was conducted by a (icensed Ohio attomey practicing in the field of corporate law,

^^off-rey P. Scott. (Supp. 5, 421). His role was to work with the coiicer.^ed ^^^nmunity meinbeas

to ensure that the election wc9iild be conducted in. a manner that complied with all ^^q-ai^ements

of the Ohio Revised Code, (Supp. 42).

At the beginning, a m^rnbership and address list was created. (Supp. 42). Mr. Scott then

o^^enred a process in which nominations for a new board of directors were opened and 14 people

were nominated by the attendees. (Supp. 42). Each bri.c^:^y introduced therixsel^^^s and explained

their position on certain issues before the Mce^que. (Supp. 42). None of t^^^ concerned Mosque

m^^^^^^s who had retained Mr. ^^ott'^ services stoo(i fbr electi.ori. (Supp. 42).

Election.s were then heid and baiots (70 in. total) were cast for 7 directors. (Supp. 4' )).

Once the ballots were counted and verified by -four (4) voittnteers from the geai^ral assembly, the

new Board oi~Dir^ctor, was installed and the riiembeg meeting a4journedo (Supp. 43).

The new directors (Appellants herein) immediately held a meeting to appoint officers,

where I1:amkd Salim was elected President and Fouad ElFaour was, elected Treasurer. (Supp. 43).

The following Monday, Mr. ^^ott, accompanied Mr. Sa:tiin and Mr. ElFaour to present their

credesttiais to Chase Bank, which added. them as signatories ^^^ the Mosque's barr^ accounts, as is

routine px^^edtire, (^up, p. 4' )).

^

After obtaining access to the Mosque's Chase account records, Appellant ElFaour

identified two checks (in the amounts of ^900 and $2,300) paid by the Mosque to Csf^ Kabul,

which. is owiled by Appellee Dada. (Supp. 45). For the Mosque to do business with a business

owned by a iMosque 13oa^d men-iber is a violation of the Constztutlon, that Appellees cW;xa to

have atioptod. (Supp. 45). Appellee ikyed had even written a check for $2,000 directly to

himself (Supp. 45). 1^ additiono Appollees had w-att^n nine checks in the amount of $800.00

(totaling $7,200.00) v^mtten to a relative of Appellee Dada. (Supp. 46). The c.laeeks were written

to Sidiq Dada to avoid disqualif^ing Appellee Dada's uncle, who laerfo^^^ed janitorial duties at

the Mosque, froni receiving the full amount of his go^^^^^^^iital assistance check. (Supp. 46).

Rather than recognize Appellmts as duly elected Directors of the Mosqu.e, and despite

that they had refused to hold elections for months and years a-fter their terms had expired,

Appellees contacted the Mosque's bank and had the bank freeze its account. (Supp. 1.01).

Appellees then filed suit agaiiist Appellants in the Franklin County C",ourt of ^onunon Pleas,

Case No. 11 CV 01 461. 5o in the name of the Mosque. (Supp. 62). '1'he hundreds of thousands of

dollars in Mosque funds that had been fto^^n by Chase were the^ deposited iAith the FranUin

Comaty clerk of courts. (Stipp. 62).

ikppeF.lees later claimed to hold an election in April of 2012, only one week after

completing their own membership registration process. (Supp. 65a67). Appellee's election took

place, however, six months after they had i^ee-n replaced by Appellants, and long after the two

year terni specified in their own Constitution and Bylaws had explred, (Supp. 16 (Seotion.

6.7.1)). Moreover, i-t was held before any of the members could possibly have oonipleted the six

month. waiting period between joining the Mosque and voting, as required by Appellees'

6

Constitution and Bylaws. (Supp. 16 (Section 6.2)).'

As the T^^th. District Court of Appea11^^s noted a^i ruling on the dismissal of Aplsellee's

Franklin County Court of Appeals case against Appellants, the Franklin C;ourity Clerk of Courts

currently retains the funds transferred fi-om the Mosque's Chase ^^^ounts, ^^^^^id ^.^mam^ Ibn El

^ha^lab <kf€^^que v. Salim (10"" Dist, Ct. App. 2014) 2013 WL 3341217, 129. After the Tentl-i

District's ni1iiig }^er^ina Appellees moved the Frankll^ (^^unty Court of Common Pleas to release

the 1`^nds, but that court lacks jurisdiction accordi ng to the Cotiet of Appeals' declsir^ii. Id. at T^

19 (x^^ouits of common pleas lack jurisdictir^^^ over actions that seek quo warranto relief'). "k'°a.e.

trial court denied the niotic^^ because it "is without jurisdiction to ni1e on any petiding motions"

while the instant appeal to this Css-urt is pending. a^Supp, 70).

ARGUMENT

Froposatlon of Law Noa 1:

The Silence of R.C. § 2733901(A) Regarding Who Mav Bring an Action inQuo Warranto To Claim an Office in an Ohio Corporation Must BeConstrued to Permit the Person Claiming Such Office to Bring Such Actionon flis or Her Own Relation.

For decades, the right of a private ^^tizen. who claims title to the office of director of ark

Ohio corporation to bring ap. action in qiio warranto on his own ^^halt. without the involvement

of the A^^omey General or a county profiecr,iting a-Ltomey, has been recognized by the Supreme

Court of O.^^ ^ld Ohio's ^^ufts of appeals. This was ^ ^^^ensis^^i of early English common

1 By contrast, Appellants' election did ^ompl^ Arith applicable timing ^^qulrements. Sip-ce theiiot1ce of the special meeting at which Appe1^.an#s were elected was circulated by "the personsca11€ng the meeting" before October 12, 2011 (Supp. 8), which was more than 10 days and lessthan 60 days in advance of the October 22, 2011 special meet€^ig, th.e notice complied with R.C.

7

1^^^. where "[a] proceeding in the nature of quo warranto was an action by the crown inquiring by

what authority a claimant of any office or franch_ise sikoport^d his claim." State, ex r°el. Cazn v.

Kay (1974)., 38 Ohio St. 2d 15, 16. Over time, the ^^ghi to bring a quo warranto action was

extended to private individuals: "Eventually, the right to br€ii^ the action was extended to

individual claimants for the ptarpos^e of questioning the authority of one claiming title to an

office, the individual claimant's and t-he state's interests bei^ig, in such a case, considered

com^^^^^urate." Id, (citz^g St€zte, a-u rel. Li^^^^yr, Maccabees (1924), 109 Ohio St. 454),

This (;Ourt bas cc^^^^^entzv guarded the boundaries of t"n.is rule '^^ ^^^loygn^ two

principles. First, a quo ^^arra^to action wiy1 mo^ lie ^^the iridividual'^ purpose is to question^the

"^^su^^ or usurpation of f^^^ehi{s^^ granted by the ^ta^^^ rather than to cla^^)1 title to an office oi'

the corporatior3 exercising that francbise.. hi .^^acca^ees, this was precisely th^.^ issue, and the

C;^^irt drew this ve:-y distinction -_..^^^^^^n cases involving c[ainns to ±^t^^ to an {^f^^^^ of a

corporation and those challenging the corporation's exercise of the staW s to do

business:

[As English law evoIv^.ad], au^he.rity tss institute a proceeding ^n quow^^^^^o was conferred upon th^ individual claimant, whereby hecould determine -elx^ ALI to j9a_^^:^ce heId by an adverse ^la^inant.But the act gave such private individual ^io authority to use the writfor the purpose of r;uestioz^Lng the ,^gJoq __ 2r Da^^^^^ of^r^.chises granted ^^, ^.^.e crown. This ^iist^ictioil accor(ie^i by ^:1^.eEnglish law has been ^^^^rall^ recognized by. various states,including our own...,

109 Ohio St. at 457 (emph^,^;^s added). Based on. this distinction, the Ifaccabees Cotirt

dismissed the individual's quo %va.rra^^^o action against a fraternal organization, a

.......... ...... ...1702.18's specifications for organizations who lack b^^^^s orwh^^e by^^ws f&,l to specify the

8

Michigan corporatisan, because the individual was eWmgng misuse of its franchise to do

business in Ohio, not title to corporate office. Id. at 46 1. Again in State ex re1, Alick v.

Burke (1929). 11-0 Ohio St. 410^ the Court dismissed the indivldual. claimant's action

because the action contested the validity of a municipal charter rather thcin the title to an

office. Id. at 414.

Sln-iila.rlyx 1nS^^^^^ ax ,rel. Mac.^onald v, .^^hmpnee Country Club (1965), 2 Ohio St.

2d 176, the Court held, "an individual in his private capacity niay not, as re-lator see1^^ to

do in t1ie instant case, invoke the writ of quo warranto to challenge the status or powers of

the tnistees of ar^onprofit corporation or the corporate existence of such corporatlori.s2

Notably, in nelther. Maccabees nor Shawnee Coun,€r^) Club did the Court express any

doubt that, had the individual claimed title to the office of director of these nonprofit

corporations, he or she cot.1.d bring the actio.^.

Second, this Court has consistently held that when title to an office is in dispute,

the quo warranto action must be lsrougb:^ by the individual who personally Clalms title to

t1^^ office in question, not by an organization or by someoxic wbo does not claiira title to

that officeo See State ex rela E Clevelc^^nd .^'fre .^ighters Assn., Local 500, Int'l. A,^sn, of

Fire Fighters v. Jenkins (2002), 96 Ob.^^ St. 3d 269, 270 (union lacks standing to

challenge title to office of fire chief ^^ca€^^e union does ^ot itself claim title). This rule

was also applied in State ex re1. Coyne v. Todia (1983)y 45 Ob.lo St. 3d. 232. 'Fhere the

individuals who brought the ^uo warranto ac.tion;

^eans.for notifying members of aspecial meeting.

9

do not pers€arflally claim title to &,.e relmors-mayors' offices, i.e.,they do not claim to be the rightful mayors o1'#hese cities. Tlleyclaim only a right to preempt some o1"khe duties sal°those offices.Since th^y do not c1 ^m title to the o^'f ces, respondents 1a.ekstanding to bring an action in quo wa-rranto.

45 Ohio St. 3d at 238 (emphasis added).

In keeping with these two limiting principles, there is at-i extensive body of ^h,,o case1aw

recognizing that a private indivi^tial who claims title to the position of director of an Ohio

corporation (whether for-profit or nofl-i-proflt) may bring a quo warranto action on his ow-ra behalf,

without the i^ivolvemerat of the Attc^^ey ^'^eneral or cotti:it^ prosecutor. See, e.go, C'arlscan v.

Rabkin (Ohio Ct. App. 1 " Dist. 2003), 152 Ohio App.3d 672, 6$5 (office of director of nonprofit

corporation); trnarea Socielatilor Romane Carpatina of Cleveland v. S-uba (Ohio Cto App. 8^h

Dist. 1998), 130 Ohio App.3d 538, 541 ("it is clear tha^ the appellees' claim to be reinstated to an

elected office of a nonprofit corporatioii is an. action in quo warranto"); ASIa#e ex reL Babione v.

Martin (Ohio Ct. App. 6th Dist. 1.994)y 97 Ohio .^kpp3d 539^ 544 (office of director of close

corporation); Strah v. Lake Couno^ Humane Socie^y (Ohio Ct. App. 10' Dist. 1993)^ 90 Ohio

App.3d 822, 828 (director ol"nor€profit corporation); Peace--U.S.A. v. Abbott (Ohio Ct. App. 10Ih

Dist. 1988), 1988 Ohio ikppo LEXIS 4598, *4r'^^ (office of director of no^iprofit coiporation)s

State ex rel. Ea^t Ci'emlanai Democratic Club, Inc. v. Bibb (Ohio Ct. App. 8"' Dist. 1984), 14

Ohio App.3d 85, 87 (office of director of nonprofit corporation); State ex reL C orrigan v. Great

rVcarthern--Chan Restaurant, Inc. (Ohio Ct. App, 8" Dist. 1982.), 3 Ohio App,3d 355, 356 (office

of director of Ohio for-profit cor^ora$ion); Stage ey r^el ATortheast Property Owners Civic Ass n

v. Kennedjp (Ohio Ct. ^pjp. ^Ih Dist. 1962), 117 Ohio App. 79 (office of director of nonprofit

corporatzon); Veierans of World War I v. Le-t^;^ (Ohio Ct. App. 8"' Dist, 1954), 118 N.E1.2d. 670,

10

676-77 (office of director of veterans' ^^ganizatioii)5 Daylon BuFlding, & &.vangs 4ss 'n v.

Ka°oeger (Ohio Ct. App, 2d Dist.. 1936), 24 Ohio Law Abst. 145, 146 (office of director of

building and loan association); ^^III^an v. Hon^^mp (1855), 5 Ohio St. 237, 238 (office of

trustee of cemetery association); Global Launcii, Inc. v. Wisehart (Franklin Cty. Ct. Comm. P1s.

2010), 156 Ohio M:lse, 2d 1, *3 ("I'he validity of an election of raembers of a corporate board

nblls squarely within the qu0 warranto remedy.'")

The court below disin-lssesl this action, however, or. the grounds that the office of director

of a ^.+^^.prc^^^. cr^rporatio^^. is ^u^t a ^`lsdhlgc o1^^;e," But as the Court o^ Appeal aclnowledgCd,

cxRe-lators correctly point oLat that the relevant staltutes do not explicitly state that a private Clti^^^

can only lnstltute, a quo w^ran^o actlon wher. he or she is claiming entltlerraent to a public

office,"° (Appx. 9).

The statute at issue is R.C. § 2733.01, which says nothing about who c^ .r^ hg°^^.^ an action

r^gardi^^g unlawful exercise of a corporate office: "A civil action in quo warranto inay be brought

in the ^^^^ of the state: (A) Against a person who uswpsq intrudes into, or i.rilawf-uliy holds or

exercises a public office, civil or military, or a ^anciiise5 watlil-n 2h1s state, or an office ia^ a

corporation created by the authority of this ^tat¢." Section 2733.01 onlY specifies Maiiist whom

such an actioai. can be brought.

Anather sectiop., Sectdon. 2733.06, does ^^ecify who can bring a quo warranto action,

When title to a s`publgc office" is in €11^ptite: "A person claiming to be entitled to a public office

imlawffilly held and exerclsedby another may bring an action thereA=or by himself or an atto^ey

at law, upon giving security for costs.99 R.C. 2733.06. Sectaoti 273106o however, like Section

11

2733.01, is silent about who can bring an action when title to "an office in. a corporation" is in

dispute.

Section 2733,05 provides, "The attorn^^ general or a pr^^^cutiiig attomey may bring ati

action in. quo warranto upon M^ ^wr, relation, or, on. leave of the court, or of a judge thereof in

vacation, he may bring the action upon the relation of aiiather person. If the ac-tion is brought

under division (A) of ^ectioii 2733.01 of the Revised Code, he ^aay require security for costs to

be given as in otber cases." Section 2733.05 contains no language, nor is there language

elsewhere in Chapter 2733, iradlcati-n^ that only an. attomey ,^eneral'or a prosecuting attorney can

bring any kind of quo warranto action vitli the sole except1^^i of disputes over a "public office.ss

See Section 2733.06.

The listing of one exceptio-o to the Section 2733.05's provision that quo warranto actions

may be brought by the Attorney General or a county prosecutor (in Section 2733.06, for "public

offices") does not imply that there are no other such exceptions. See Summerville v. City of

Forest Park (2010), 128 Ohio St. 3d 221, 228a29 ("We are not perst€ad.ed by appellee's argument

that by including one exception. to the broad language in R.C. 2744.09(E), the legislature

intended to preclude all other exceptions. R.C. 2744.09(E) does not contain a series of exceptao.n. s

that illustrates th.e. General Assembly's 1nterzt that terms lel^ out m€.ast have been intentionally

exclu€1ed."), Here, Chapter 2733 is silent about who can bring a quo warranto action "a[algaanst a

person who ustups, intrudes into, or un1aw-fully holds or exercises a o 0 0 ^.a office in a corporation

created by the authod.ty of this state." R.C. § 2733.01(A). lbat Section 2733.06 specifies that an

1ndiv1d-ual may bring a quo warr^^o action regarding a "public office" does not, according to

Summerville, necessarily imply that an individual may not also bring a quo ^arraiito action

12

regarding "an office in. a coiT^rafiaon created by the authority of this state." See Section

2733.01(A).

As this Court has established, "To ^^^^^^ine the intent of a statiiteA a court looks to the

language of the statute, gi-v-ing effect tO the -a^^^^s used. Rice v. ^^^^^^nT^^d Corp. (1999), 84

Ohio St.3d 417, 41 9. A court is neither to insert words that were not used by the legislature nor to

delete words that were used. Id.yg Cleveland Mobile Radio ^541es, Ine. v. Verizon Wireless, (2007)

113 01-iia St. 3 d 3 94, 3 97-98.

The plain language of Section 2733.06 imposes an. a(iditic^iial requirement on those w1-io

as private ^ndividualfi contest title to a "public office": they must first give security for costs: "A

persaii. claiming to be entitled to a public office unlawfully held and exercised by another may

bring an action therefor by himself or an attom. ey at 1a-v{, upon aavi.^ ^ securixv for cast^"3

(Emphasis added). The purpose of Section 2733.06 appears clear, from its plain. language: the

legislature imposes a cost a^el)osii requirement as a buffer against the possibility of meritless

chalenges to ptiblic elections. See Devine i.r. Detroit Y'rust Co. (1935)4 52 Ohio App. 446, 452

("Sectarl^ is against the ^^^iitingeiicy that the pldj.n+,,iffs claam is witho-at a^erit,...").

There is no other ^arxdatqrv. cost.deposit requirement in Chapter 2733, although Section

2733.05 does give t:tie Attomey General or the prosecuting attorney the option of requiring

security for costs w1^en th€;^ bring the action. Again, the statutory purpose is appa^ent: when a

publicly employed attorney is spending his ^^- her time contesting titl^ to an office on behalf of a

private andavidual, that attom^^ may reqWre security for costs to gu,-Cd against meritless clagmso

Section 2733.05 limits the optional security deposit option to cases under Section 2733.01(A)

13

only, h®^^^er. If brought under Section 2733.01(B) or (C),2 or under 2733.02 for that matter, 3

the. Attorney C^^^^^ral(prosec°uLgng atYomey does not have that option.

'C"his reflects a lack of legislative cor^^em about a profusion of meratl^^s actions against "a

public officer, civil or military, Nvho does or suffers an act which, by law, works a foeeitu^^ of

his office" (see Section 2733 .01(B)) or a.ga1llst "an association of persons who act as a

2 2733.01 provides in its entirety:Proceedings against a person. A clval action in quo ^^ar-ranta^ maybe brought in the name of the state:(A) Against a person who usurpsa intrudes into, or unlawfOy holdsor exercises a public office, civil or ni€litary, or a f^a,-qchzse, withinthis state, or an office in a corporation created by the authority ofthis state;(B).Againsx a public officer, civil or military, w1-io does or suffersaai act w1icb, by law, works a forfeiture of his office;(C) Against an association of persons who act as a corporationwithin this qtate without beltig 1egally incorporated.

3 2733.02 provides in its ciitirety:Proceedings against a coxporatlon. A civil action in quo warTantomay be brought in the name of the state against a corporation:(A) When it has offended against a law providl^Ag for its creation orrenewal, or any amendment thereof;(B) When. it has forfeited it^ ^^-vi1^^^s and franchises by nonuserq(C) When it has committed or omitted an act which amounts to asurrender of its corporate ^ghts4 privileges, and franchises;(D) `W'hen it has mgsu^ed. a franchise, privilege, or right crsnferredupon it by lawA or when it claims or holds by contract or otherwise,or has exercised a franchise, pnvi.lege, or right in contravention oflaw;(E) Wh^^i any application for a license to transact business in. thl.^state filed by a foreign corporation, any articles of incorporation ofa domestic corporation or any amen.d^ent to tfiemy or anycertilgcate of merger or consolidation which set forth a corporatename prohibited by the Revised Code, has been iniproperlyapproved and filed.

14

corporation within this state without being legally 1ncoa^^^rated." See Section 2733.€I1(C). The

legislature was koparen^y not very caaneemea about a profusion of meritiess claims against a

corpomtiony rather than against a person, under Section 2733.02 either, The legislature

apparently was cona^emed, however, about the possibility of a profusion of meritless claims

against "a person. who usurps, intrudes into, or urdawfi l}Y holds or exercises a public office, civil

or military, or a franchise, within this state, or an office in a corporation created by the authority

of this sIateo4i See Section 2733.01 (A).

If the pr1.vc-ite individiol brings the action hitxa- or herself, however, to claim title to a

corporate office, the fact that the individual will presumably be required to invest thear. a^wrn

resources to hire 1^gal counsel, or at least will be required to invest their own. time in bringing the

action .pro se, was apparently enoa^^- of a check 3gp1.r^^t m{ar.itless c1a9.ms l^ the view of the

legislature. '.[ hi^ accounts for the urnlssaon of any costs de-posg^ requirement for claims to Iifle to

a corporate office in Section 2733.06. Only claims to title to "public office" are so covered.

Chapter 2733 thus explicitly authorizes mandatory security for costs to ,^^iard against

meritless claims to title to a public office and against ^^rtdin types of po^ntially meritless

demands ^^^^n the free legal services of the ^tt^^^^ General or a prosecuting attomey. Chapter

2733 imposes no such requirement to guard against meritless challenges by private individuals to

title to corporate director positions, or indeed for cases against any of the other types of

respondents named in 2733,01 : "(A) Against a ^erson. who usurps, intrudes into, or wilawfully

holds or exercises ... [omitting "a public office, civil or military"] a franchise, within this state,

or an office in a corporation created. by the authority of this state; (B) Against a public officer,

civil or military, who does or suffers an act whlch, by law, works a forfeiture of his office5 (C)

15

Against an association of persons who act as a corporation within this state Nidthout being legally

incorpor^^ede" The intent of the legislature is apparent from the plain wording of Chapter 2733:

a costs deposit requirement may be necessary to guard against meritless challenges to title to

pLiblic offices or against certain t3rpes of potentially meritless demands upon publicly employed

prosecutors.

In an analogous situation, in Cleveland Mobile Radio Sales this Court ruled that since "a

pWntlff in a claim larought pursuant to R.C;, 4905.61 need orily show causation and damages

flowing from the adjudicated violation," a one-year statuto of limitations app1ies, Since "Statutes^

of limitations are designed," in part, "to ens-€^^e fai^^^^ to a defendant," given that the plaintiff

^^^eded to make only limited showings a longer statute would have been u.n. fai.^ to a de^"^ndarit.

113 Ohio St 3d at 400. Similarly, the purpose ol'R.C;. Section 27' )3.069 on its s^rilace; is to deter

rn.eritl.ess challenges to title to a publi.r, s^f-Ece by private. individuals by imposing a cost

requirement. It contains no language imposing such a requirement on challenges to title to

corporate offices by private indlviduals, To interpret a specific restriction upon challenges to

title to public office, to guard against meritless claims, as a bar to clia.lenges to title to corporate

office by private individuals is unrelated to the legislative purpose underlying Section 2733.06.

In addition, a comparison of ^^ Quo Warranto c:E-dpter of the Ohio Revised Code to its

predecessor indicates that the Revised Code sections currently in effect were modified versions

of the Geriexal Code sections tl-iat preceded them, 1n

-^ecafk ^i^^l^^^r^ of ^^ warranto actio^. at issue l^ere ^:q.s the

At^o ae^_^^cn^^^ To begin the comparison, it is necessary to review

the wording of General Code Sections 12303 and 12304, which were nearly identical to Revised

1.6

Code Sections 2733o01 and 2733.02, because G.C. Section 12305 refers back to G.C. Sections

123e13 aiid 12304 in away that G.C. Section 12305`^ successor, R.C. Section 2733.04, does liot.

General Code Section 12303 provided, in its entirety:

Proceedings against a person. A civil action may be brought in thename of the state:1. Against a person who usurps, intrudes into, or unlawfully lxpldsor exercises, a public office, civil or military, or a franchise, withinthis state, or an c^^ce in a corporation creatted by the authority ofthis state;^. Agaigist a public officer, civil or rnilitary, who does or suffersand act which, by the provisions of law, work a i"orfeitu.re of hisoffice;3. Against an association of persons who act as a corporationwithin this state without being l^ga-lly incorporated.

A comparison of General Code Section 12303 to R.C. Section 2733.01 (quoted in its entirety in

footnote 2 above) shows lls.at, there are only minor differ^^^^s of no significance here.

General Code Section 12304 provided, in its entirety :

Against a carporatiorf. A like action may be brought against acorporation:1. When it has offended against a provisiaii of an act for itscreation or renewal, or any act altering or amending such acts;2. 'W"hen it has forfeited its privileges and franchises by r^on-user33. Wben it bas s,ornmxtted or ornitted an. act which ^^^i-ints to asurrender of its corporate rights, privileges, and franchises;4. When it has.misused afrarr.chise, privilege, or right conferredupon it ^^r law, or when it claims or holds by contract or otherwise,or has exercised a franchise, privilege, or right in contravention oflaw.

A cs^^pwi.son. of General Code Section 12304 to R.C. Section 2733.02 (footnote 3 above)

indicates that there are no significant differences, other than that R.C. Section 2733.02 has added

a fifth type of quo warranto action against a corporation, a type not present in G.C. 12304:

sdWlien any application for a license to transact business in this state filed by a foreign

17

co.rporatlor.y any articles of iracorporation. of a domestic corpora^^on or any amendment to them,

or any certificate 01.7merger or. consolidation which set forth a corporate n.ame prohibited by the

Revised Code, has been improperly approved and filecl." R.C. Section 2733o02(EI), This

additional provision, however, has no bearltig on this mattero

By contrast, General Code Section 12305 does differ significantly from its corresponding

prova.fiior^ in the Ohio Revised Code, General Code Section 12305 provided, ln. its entirety:

Wb.o may commence action. When directed by the governorysupreme court, or general assembly, the attorneyy^enerals or aprosecuting attorney, shall commence guch action. When, uponcom^^ainty or otherwise, either of suc1i officers has good reason tobelieve that any case specified in the next preceding section can beestablished by prrsssfi, he sha commence an action.

(Einpb.asls added). "I"b.e corresponding provision of the Ohio Revised Code is 2733o04, which

differs as follows: (1) the heading has been changed from "Who may commence action" to

"Commencing quo '^affanto'}; and (2) the R.^^^^ed Code version lacks G.C. Section 12305's all

inclusive reference to the Attom^^ General or a prosecuting attorr^ey as the only persons

authorized to commence "sa^ch. acti^ii.ss

"Such actioa3" in G.C. Section 12305 can oDIy be interpreted as a referen ce back to t1^^

various types of potential quo wm^^o actions set out in G.C. Sections 11.303 (against persons)

and 12304 (against corporations). The Revised Code vexslonj ^^ction. 2733.04, however, has no

all-^inclusive refcrence back to 2733o0l (against persons) and 2733e^^ (against corporations).

Rather, 4^sucb, actzon" is replaced in R.C. Section 2733,04 by the general authorization of the

Aftrsrney Geii.^ral or a prosecuting attomey to commence "an actio-n in quo warranto.7s

Aaatb.ori^ati€^^ of ibe Attomey General or a pr^^^cutixig attomey to commence "a,.^. action" does

18

not rule out otl-icr persons from bringing an action in quo warranto, 11ke authorizing them to bring

Lssuch. action" dt^e& Even the change in ^eadln,^ suggests that the Attom^^ ^eneral or a

prosecuting altomey are no longer the only persons generally authorized to bring quo warranto

actions. 46NWh€^ mkv commence action" i-n G.C. Section 12305 is now the much less restrictive

heacling5 "Commencing q€,ao warranto,'s R.C. ^^^-tiora 2733.04. lrl. other words, the Revised Code

no longer contains a section oai "Who may commence" a quo warranto action, as the General

code did.

One must presume that the legislature made these changes for a reason. See Cleveland

Mobile Radio Sales, supra, "I'he plain. lan.gi:€^^^ of the Revised Code version need not necessarily

be interpreted as setting forth the Attorney General or a prosecuting attom^y as the only persons

generall;^ aiitharl^ed to bring "an actioW" in quo warranto, whereas, the General Code ('°such

action") can only be reasonably be interpreted in that mamier. It is entirely possible that the

legislature made this modificat€on. as ari acknowledgement of the extensive body of Ohio case

law extant at the time R.C. Section 2733.04 was adopted (1953). That case law hold that a

private irAdlvidtial claiming title to a ^om, orat^ office cotild bri €ag an action in quo warranto on liis

own relation. See, e.g., Dayton Building & Savings Assn, supra, 24 Ohio Law Abst. at 146

(office of director ofbuildlng and loan association); S-t€ate e,^ ^eL Voight v. Voight (1913), 2 Ohio

App. 145 (office of director ol~for-profit corporation); ^uliman v. H€^^^oMps siipraY 5 Ob.lo St. at

23 8 (office of ti-us^^^ of cemetery association); State ex ,^eL Kemper v. Beecher (1847), 16 Ob.zo

358 (office of President of theological seminary). The legislature's inaction, in not revisiiig G.C.

§ 12305 to expressly bar such actions, must be given deference.

19

l'n State ex ^eL Hawthorn v. Russell ((2005), 107 Ohio St. 3d 269), however, this Court

held that iii€!ivadual.s lacked standing to challenge title to -die office of director of a nonprofit

corporation a^^i the grounds that it is not a. "xp.Liblac office.5;

In a one and onemhalfpage opinion, the Court ruled as followso

[A]s we have consistently held, f-or persons other than the Atto^^^^encral or a prosecuting attorr^ey, o"an actioii in quo warranto maybe brouglit by an andividual as a private citizen only when hepersonally is claiming title to a public off ce." ° " S-tate ex r^eL E.Cleveland Fire Fighterc'.r4ssn., Local 500, Internad. Assn, oj' F>reFighters, 96 Ohio St.3d 68, 2002-Oh30a3527, 771 N.E,2c1 251, ^10, quoting State ex. rel. Annable v. &o:^^^^ (1970), 24 Ohio St2d32, 53 0.0.2d 18, 262 N.E.^^ 863 ), see R.C. 27133.05 and 2733.06.Because the office of director of the ^arb^iten R.^^cue:Mission wasnot a public office and appellants are anekther the Attorney Generalnor a prosecuting attorney, appellants could. not institute their quowarranto action.

(:-lawthorn did raot cite, or discuss Section 2733.01(A). It only menfiora^^ Sections 2733,05 and

2733.06^ those with the cost deposit requirements. It made no r.raention. of the significant

difference between R.C. Section 2733.04 and G,C. Section 12305, in that the prior speci^cation.

of only the Attoniey General or a prosecuting attorra^y as being authorized to bring "such actloi.'g

is modified to provide that they n-iay bri-ng "an act.^on is^ quowia.r.raratoy" without speciA:ing who

else may or may not bring stich. action.

As for the two cases cited by the 1*7wth€^rn court, they are not at all on point. As

discussed above, State ex re1. E. Cleveland Fire F$g^^ersp Assn. forms parts of this Court's

consistent jurisprudence regarding a s^p,-rrate issue: that when title to an office is in dispute, the

quo warranto action must be brought by the individual who persorsally claims title to the office in

20

questiogiy not by an organization or b^r someone who does not claim title to that office. 96 Ohio

St. 3d at 270. Afi.^efighters' uai€on lacks standing to dispute title to the position offird chief. Id,

The second case cited by the Hawthorn court stands for the same proposition. In State ^^

^eL Aatnable v. Stokes ((1970), 24 Ohio St.."Id 32) the ca^e was dismissed because none of the

relators claimed title to Louis Stokes' congressional seat. 'Fhey syxx^ply sought to oust him, and

have his district declared illegal due to ^^rrym^ndering. Id.

The case law cited by the I-I€wthorn ca^^t therefore, had nothing to do witli, its

conclusioaiy that "the office of director of the Barberton Rescue Mission was not a public office,"

which deprived the relators from standing to bring their ^^^o warranto action. Moreover,

Il^^horn did not consider the significance ofC1apter 2733s silence regarding who can bring an

action to contest title to a c;omorate of-f-i s,c.

Hs,wthorn's uiasupportesl b.old.ing is the primary basis for the decision of the Court of

Appeals to dismiss this action. (Appx., p. 9, ^ 19). The court below also cited, as being in

accord with Hawthorn, State ex rel. Cain v. Kci5^ supra, -38 Ohio St. 2d 15. State ex rel. Cain,

however, explicitly ^^kiiowled.,^ed that the Court had ^^^t developed a workable definition of

"ptiblic office":

[7"jhe definitions [of "public office" for ^^o warranto purposes]developed in Cna^ court ^id others are ^^e-rous, varied, and notwho11^ consistent. E. g., State ^x rel, Bricker v. Gessner (1935),1296hio St. 290, 195 N.E. 63 (membership on a county chartercommission cons-Ilit€^^^s a public ssfflice); State -_x re1, Stanton v.Callow (1924), 110 Ohio St. 367, 143 NX. 717 (county buildingcommi^^^^^^ers are not public afficers); State ^x re1. Godfrey v.Oe^^en (1917), 95 Obio St. 1 66o 115 N.E. 25 (members of cour:^tyboard of revisio-n. are public officers); Palmer v. Zeigler (1907), 76Ohio St. 210, 81 NE 234 (county ^nfimi^ superintendent is not apublic officer); State ex rel. Atty. Genl. v. Jennings (1.898)0 57

21

Ohio St. 415, 49 NX. 404 (firemen, other than the chief of thedepartment, are not public officers). 'Fhese cases indicate thatjudicial develc^^nieiit of a definition of `pyibl1c office' which wouldbe all-lnclus1v^ and would serve wri^^^^ fault in all sgtLaataons hasbeen an elusive goal.

The case law founda-€lon. for the Hawthorn decision had nothing to do with the question of

whether the position of director of a corporation is a "public office," and the ^^^^ additional case

cited by the Cot:€rt of Appeals below (State ex reL Cain) explicitly acknowledged that this Court

has never developed a consistent definition of the ^erin. Appellants respectf.Wly submit that

cc^iiclusoxy proclamations by the Hawthorn Court and the court below based on inapposite case

law should not d^^emiane the issue.

To th^ extent that Hawthorn is precedent on this 1ssue,1t should be disregarded under the

firm principles of stare decisis. When. precedent exhibits a "lack of any meaningful analysis,"

and. "cavalierly" results in '4a sweep1ti.^ repudiation by implication" of prior authorities, it should

be d1sre,^^rdedo Groch v. General Motors Corp., (2008), 117 Ohio St. 3 d 1 92, 216. Accordingly,

this Court should `;decline to follow its unreasoned rule"in Hawthorn. Id. at 218.

Hawthorn relied entirely on inapplicable precedent, and ignored that in other precedent

this Court took it for granted that title to the office of director of a corporation may be contested

by a ptivate individual. ..Afaccahees„ 109 Ohio St. at 457; Shawnee Country C^ub, 2 Ohio St. 2d

at 1.76. Hczwthorn also ignored numerous 1ower9^ourt decisions holding tb-a^ quo warranto

proceedings could be brought to contest title to a corporate office: Car1son V. Rabkin, supra

(office of director of nonprofit corporation); Unirea Societatilor Romane Carpata^a of

Cleveland v. Suba, supra (director of a nonprofit corptsration); :5t^^^ ^^ ^eL Babione v. Martin,

supra (office of director of close corporation); Strah v. Lake County Humane Society, supra

22

(director of nonprofit ^orp€aration); (Ohio Ct. App. 10" Dista 1988), Peace-U.S.A, v. Abbott

(1988), 1988 Ohio App. I:,EXIS 4598 (office of director of n€s^ipra^fit corp€^^ation), State. ex ^eL

East Cleveland Democratic Club, .^nc, i^ Bibb9 supra (office of director of nonprofit corporation);

State ex rel. Corrigan v. Great Northern- Chan Restaurant, I'nc., supra (€sff-ice of director of Obio

forypr€^fit corporation); State ex reL Northeast Property Owners Civic Ass'n v. Kennedy, supra

(office of director of nonprofit corporatioA)y Y^te,^ans of World War I v. Levy, supra (office of

director of v^^^ransy organization); Dayton Building & Savings Ass 'n v. Kroeger, sylira (office of

director of building and loan association); Hullman v, I-Ioncoinpr s-i^^ara (office of trustee of

cemetery assoclatio4)^ Global Launclaa Mc. v. 9,7seharl, ^^^^^^ (director of a corporate board).

Finally, Hawthorr^ ignored Section 273101(A)Ys silence regarding wti€^ can bring a claim to

co€itest title to corporate €saTice,

.^irwt^^^rn, to put it plainly, lacked "any ^^ea^ongl:^ul. analysis." Ac;cor(lingl,y, .I^aiw^orn

should be disregarded. See Crr€^^chj 117 O'hio xt. 3d at 2116, 17,he. silerib;^ of Se€;tiori 2733,01(A)

r^gar^^^g who crri br"nig an. actioei to conlesz tgfl€; to a cs^^orate. ofiiee sh^-,uld not be broke-n by

tE^^ judicial aiiserti€x^ of a limitation ldmt sucb actzoins, ca.¢:t. only bre brought by die Attorney

General or a pros^-luting attorney.

Proposa^^^^ ^^ Law Na^. M

R.C. § 2733a^6 Authorizes a Pr1vitte lndlgrldigal To Claim the "Public Offmo"of Director of an Ohio Pdbile B€:^^^^t C^^^oration Through an Action in QuoWarrantou

Arguing in the altemative, ^^^^ii ass;^^^^lnw n`r^^ ^^hi^, sake of ar^wrient that private

individuals can only bi-ing quo wwTant€; actions if they cl^i^a title to "public offices." givegi the

_2 3

elusiveness of a ^^finition. of "public office" for all caseS,^ and ggven. the numerous cases

recognizing the office of director of an Ohio corporatl.^^^ (even formlarofit corporations) as

appropriate for quo warranto jurisdiction, Hmvthorn's holding should be either overruled or

limited to that case alone. Tb-e Hawthorn Court gave aio lndlcatlor^ that it considered its ruling to

have the far broader impact of overruling these numerous precedents - it neither aclnowledged

nor analyzed theni. Nor did it anal.yze wliy the office of director of a nonprofit corporation is

supposedly not a "public officee" Moreover, since being l.sst:aed, and apart from the Ognar

Mosque litigatl€^ii7 Hawthorn has ^^y been cited on urArelated grounds,5 or in a case where there

was no dispute that the position of fire chief is a "public office,'S6

Caa,^ (which the court below cited as support for its conclusion that the office in dispute

here is not a public office)7 analy7ed the definition of "p3rb1,Jc office" nn1,y in the context of a

political party's state an^ county central committees, Cain d1^tingu1shed a prior case (State ^^

reL .^layes v. Jennings (1962), 17.31 Ohio St. 370), wh.ichhad held that the position of member of

a, county central committee is a "public office" because the legislature has delegated authority to

4 See State ex re1. Cain, 38 Ohio St. 2d at l.^ ("R.C. 2733.06 does not define `pub1lc office,' andthe definitions developed in this co^.-^r^ and others are numerous, varied, and not whollyconsistent.").

3 State ewr reL Ililitop Basic Resources, Inc. v. City of Cincinnati (2008), 118 Ohio St. 'id 1.3 1.,134 (citing Hawthorn for the proposition that an argument not raised below is waived on a^^eal);Strothers v. Norton (2012), 13 1 Ohio St. 3d 359, 362 (same); ^%at^ ex rel. Boyd v. Ward (201 2)^132 Ohio St. 90, 91 (same).

6 State eac reL 1rewe1l v. City qfJackvo^ ^ ?008), 118 Ohio St. 3d 138. Even ^^rlil^^. the OrriarMosatie lgtigationo -Alapellees did not rely on Hc-vvth€^rn at the outset: they answered Appellants'quo warranto ^^inplain.t, an(j ordy later moved to dl.smlss, (See record herel.n,1.t^^ 57).

^^ppx•, p, 93¶2 1•

24

such a committee to fill vacancies in certain elected offices held by members of their party. C€ziia

held that, by contrast, the chair ssl`the state central committee did not have that authority, so it is

not a"public office"under R.C. Section 2733006. 38 Obio St. 2d at 18a19,

Political parties and nonprofit ^orpo-ratzons are, however, flindamenta;.1y different

organizations, organized for entirely different purposes, subject to d^^ererit statutory schemes,

and fulfilling entirely different roles with respect to go^^^^^^ and the p-ablic. The analysis in.

Cain thus has no application here. As (".'ain noted, "Political parties are basically voluntaq

associations of persons who act together principally for party and community purposes. Courts

should defer to Lhe appropriate party tribunals established by the members for Lie resolution of

internal dl:^putes of the party,"s Id. Nonprofit corporations, by contrast, are incorporated by the

state and subject to state oversight, including fb.e reg€alatior^^ set ^orth in Ohio's Nonprofit

Corporation Law (R.C. Chapter 1702)5 and the explicit auth.orgzatgon of quo warranto

proceedings regarding title to corporate offices and misuse ofthelr.^ranchAse in 2733.01(A),

^'urthemiore" the con.clusion. that the position of director of Omar Mosque is a "public

office" is consistent w^tli the ^enninol^gy used by Chapter 1702 of the Ohio Revised Code,

which regulat^^ nonprofit crsrporations. Chapter 1 702 speaks of the position of director of a

nonprofit corporation as an "office" tbsoughout.8 Some of the f-anctg^^s that such officers cax^

exercise go beyond the fnt^mal affairs of the organization,9 including the appointment of a

8 See, e.g., R.C. § 1702.11(6); R.C. § 1702.28(-)^) & (B)5 R.C. § 17011.29(A) & (B); KC„ §1702.301(A)^3j) & (C), R.C. § 1702.32.

Cs^^^^e Caino 38 Ohio St. 2d at l.^ (powers ^^^^^inber^ of p^y"s state cen^^.1 cs^^.^^ttee °`^^exercisable only with. respect to the internal affairs of fh^ party.")

25

statutory agent B€^r service of process (^..^":, § 1702.06), tA^e .3ign1ng +^t' a certificate of merger

(R.C, § 170143(A)(1)^^^^, w^ich. terminates the existence of the predecessor organization (R,C.

l. 702o44(A)(l ); or the signing of a certltP.cat^ ofc^nversiorio R.C. l 702,462(B)(l )(e). The Court

of Appeal thus erred in concluding, "A director of a noqprofi t corporation does not perf^rin any

governmental functlon. (Appx.o p. 9, Ij 21). Clearl)r the position of director of a nonprofit

corporation is an "offce,"" and at least some ^^^ecis of their role are thus public in nature.

Moreover, Omar Ms;s^^^e fits Chapter 1702's definition of' a `s Dtib11c benefit" nonprofl't

corporation. "^PubAic bene.t corporatic^ii" is del^ir.^ed as a corporation that is exempt fTom federal

income taxation under section 501(c)(3) of the Intemal Revenue Codeo R.C. § 1702a€11(P). 'nae

IRS has not only recognized the Mosque as ^^^-exempt tnid.er section 501(c)(3), the IRS has

r^^ogii1;^ed it as a "Publ^c Charitv.y,^O The IRS letter indicates that the IRS considers the Mosque

^t) be tax-exempt based on its status as a "public charity" rather -t^an as a "private foundation."

'I'he office of director of` a nonprofit corporation that has been recognized as a taxmexeraipt "public

charity" 1sall the more ^^early a °4pub11^ office," in contrast to a tax-exempt "private founda^oneM^

^ppella,e^^^ would welcoraie a holding here that li mits the scope of corporate offices as

"public" offices Lmder R.C. Section 2733.06 to offices ira. public charities, and not private

fv^unda^^onsil or for-profit corporatloiis. Regarding such a corporation, the Court of Appeal

^a Sikopo pp. 85W86 (July 29, 2008 letter from the Internal Revenue Service recognlzi-ng Orr^arMosque as a taxwexempt no-nprofit orgaiiization. under IRS Code Section 501(c)(3)).

The difference bemeen a "public ^harityb5 and a "private foundation" under the InternalRevenue Code is that "public charities" are either a certain types of organizations that engage ininherently public activities (such as churches, schools, hospiWs, dndovmi.^^t funds for a stateuniversity's llbrary, goverr^^^^tal, entities or publicly supported charities (such ^.^.^ tJnlted Way)

26

clearly erred in concluding, "a corporate director serves the interests of the corporation, not the

public,°' (Appx., p. 9, 121), The IRS will not recognize a r^-onpresfit corporation as a "public

charity" if it does not serve the chafita.ble interests of society.12 The "public" naWre of the

"offices" an dlspiate here seems beyond question: vvhat is only in dispute here is the "office" of

director of a "public benefit corporation." Such an office is a "public office" for purposes of

R.C. § 2733.06. The Court of Appeal thus had;urisdlctlon over this matter.

Pro osi#lon of Law No6 111,

This Court Should Treat Appellant's Action as a Reqaest for a Directive, andIssue a Directive to the Ohio Attorney General to Bring a Quo WarrantoAction Against Appelleesa

Rather thaai being c.iismissed9 leaving the parties without a remedy, Appellants' quo

warranto action s1^ould be treated as a request for a directive by this Court to the Ohio Attorney

General to initiate quo warrarito proceedings against Appellees. R.C. ^^ction. 2733.04 provides,

"When directed by the govemor, supreme court, secretary of state, or general assembly, the

attorrzey general, or a pros^^titi^^ attor.^^ev9 shall. commence an action in quo warranto .,.."

A quo warranto action that otherwise might not lie should be treated as a, rerluest for such

a directive, a-ad a directive should be 1^^^^ed, "only when sometthing re1a41ng ^^ ^^ ^)lgt or i^^

(See 26 U.S.C. § 509(a)(1)); organizations that receive more than one-thla^ of their support froma diverse range of sources (See 26 U.S.C. § 509(^)(2).}; organizations that support otherorganizations that qualify under § 509(a)(1) or § 509(a)(2) (See 26 U.S.C. § 509(a)(3))s andorganizations that test public safety products, See 26 U.S.C. § 509(a)(4)

'z 26 U.&C. § 501(c)k3) limits tax exempt status to nonprofit organizations "organized andoperated exclusively for religious, charitable, scientific, testing for public safety, literary, oreducational purposes, or to foster nationalssr in^^mataoraal amateur sports competition (but only if

no part of its activities involve the provision of athletic facilities or equipment), or for theprevep-tlon of cruelty to children or anamals...,'S

27

business, renders it riea;^^sary or advasableog' Thompson v. WaLwrr (1891), 48 Ohio St. 552

(emphasis added). In. Thompson v. Watson, the Court declined to issue the directive because the

disptate was over the constitutionality of certain legislation, not a claim to title to an office. The

Court reasoned:

It [the directive provision] was not designed, we appreben, d, thatthe court should be ca1led. upon to exercise its autb.orlhY to direct anaction to be brought by the a^^omey gerzeral to test theconstitutionality of legislation whenever a citizen Nvbo feelsaggri^^ed should request it. Other modes are open to him, as theyare to the plaintiff in this case, for bringing such legislation beforethe ^ouits,

Id.

Iferey by contrast, the dispute does relate to court busarfess. As the Court of Appeals

acknowledged in addressing the status of the case brought by Appellees in the Franklin County

Court of Common Pleas, the right ta) hundreds of thousands of dollarsin Mosque funds, currently

on deposit with the Fr^^ County Clerk of Courts, cannot be released until one side prevails in

a quo warranto action (or this matter is settled):

The clerk of courts cannot hold the funds inclef^ite1y, Once ajudgment in quo warranto is obtained, the prevailing side must beable to file a motion w%th the trial court requesting an. orderawarding the interpleaded funds to it, Alternatively, if the parties^ett1c their dispute, they must be able to approacb. & court with an.agreed entry regarding the disposition of the funds.

.i^^^^^^ Omar Ibn El Khaltah .kf€a^^que v. ^5alam (1Oh Dist. Cte App, 2013) 2013 WL 3341217, ^

29. This is hardly a dispute over the constitutionality of certain legislation, which does not belong

in a quo warranto action. 'I'hi^ is a dispute ti-tat directly relates to court business, bLasgr^fess tb,-at

28

cannot be concluded uiitil the riglat^'-Lil claimants to the title of director of Omar Mosque are

detem-dnecl judicially.

There is anipl^ evidence in the record upon wWch the Court could base a directive to the

Attorney General to initiate quo warranto proceedings against Appellees, At the time this case

was filed, on Apri120, 2012, Appell.ees claErriecj that ^^ywere still in office, despite that their ^enns

had expired over two years earlier. (Supp. 6). Within cinc. month of their appointment, the initial

board was required to create a process for persons to become meniber^ of the Mosque (Supp. 7, 12),

yet they refused to compile a membership list, (Supp. 3). The initial board was also required to

prepare a asCc^^^^^tution and Bylaws to be ratified by its members of the Mosque no later tharx.

12/31/2007" (Supp. 7, 12), but the iiiitia.l board failed to do this too. (Supp. 2-3). Only after a

petition containing 76 signatures was presented to the iiiitial board on September 3, 2011 requesting

a copy of the :^^^que's bylaws did the initial board abruptly post a Constitution anci Bylaws

document, on Septeni^er 6, 2011. (Supp. 28). This was more than two and orae-hall" Yea.rs after the

initial board was stappss^^^ to have prepared a Constitution and Bylaws for ratification by the

membership. Yet even this atanxptly-postecl document never was ratified by the membership.

(Supp. 3).

During their tern of office, the initial board n°ver held any annual meetings. (Supp. 3).

Appellees refused to hold elections, stating, "We do not beli^ve. in °l.ection.s. I ain the cs€^^ who

convinced the other board members that we should not have elect€c^iis.}g (Supp. 29). Appellees

ev^^^ an-no-uracecl that people should stop asking for elections, saying that othemise Appellees

would call the police on them as they had done with others in the past, (Supp, 29).

29

When cora^emed community members organized a special ineeti^.ag to conduct election,

the initial board, in response, sought to frustrate fne corrmiunlty members' organizing activities

by removing postings 'n the Mosque, confiscating and destroying flyers, changing the Mosque's

fax number and altering email addresses of the initial board, and threatening the organizers with.

physical violence and criminal prosecution. (Supp. 5). Appellee Ayed went so far as to f-fle a

complaint ^ifi^ the Columbus City Prosecutor seeking to have three of the organizers (none of

whom stood for election) charged with trespassing because of their s-uppart for the election.

(supp. 5).

Despite Appellees' efforts, Appellants were duly elected as directors of Omar Mosque on

October 22, 2011. (Supp. 43). iJpon. ^^tainliig access to the, Mosque's bank accounts,

Appellants identified two check-s (in the amounts of $400 and $2,300) paid by the Mosque to

Caf6 Kabul, which is owned by ^^^ellee:Dadao (Supp. 45). For the Mosque to do busin^^^,%ith

a business ovini^^ by a Mosque Board ^riember is a violation of the ConstitiLtl^^ that -Appellees

claim to 1^^^e ad^^te.d. (Supp. 45)o In addition, Appellees had writteit nine checks in the amount

of $800.00 (totaling $7,200.130) vvri^^^ to a relative of App°l^^^ Dada. (Supp, 46). The cliecks

were wxitteii to Si.di^ Dada to avoi-d disqualifying Appellee Dada's uncle, w1io performed

Janitorial duties at tb.e Mosque, frorn receiving the fizgl ^nowit of liis ,^oventimenta.l ass33tance

check. (Supp. 46).

Much of this evidence is undisputed. In additaon., Appellees are also del`en€ling against a

fraud action brought by several Mosclu^ nwmbers; arislng out of Appellees' use of misleading

statements to raise construction ftu-ids. That case has proceeded past ti^e dispositive motion stage

mid trial is nearly complete. F^-Iassan v. 4yed, Franklin County Court of Cor^^^n Pleas Case No.

30

12 CV 233. Further, Appellees only attempted to elect their own successors six months after

Appellants were elected to replace them at the duly called special meeting. Appellees lacked the

authority to call that electior, since they had already been replaced. Moreover, Appellees

intini1da^ed their opposition with threats, violence asid even arrest both before and ^^erwards,

(Supp. 75-77).

If the Court decides against Appellants under Propositions of Law I and 11 and does not

remand this case for decision by the C;ou^ of Appeals, Ohio law and these facts provide an ample

basis for this Court to issue a directive to the Ohio Attorney ^"^eneral to initiate quo warranto

proeeedings against ^ppellees.

CONCLUSION

Because R.C. Cbapter 2733 does not limit who can. bring a quo warranto action regarding

title to ^ corporate office, w^^-reas it does specify Who ca.ti bring an action and under what

conditions an action may be brought regarding a public office, this matter should be remanded

,for decision by the Court of Appeals. In -Eb.e al^^mativey because the office of director of Omar

Mosque, a public charity under R.C. Chapter 1702 and the lr^^emal Reventi^ Code, is a public

office, this matter should be rernanded for decision by th^ Court of Appeals.

If this matter is not remanded to the Court of Appeals, this Court should issue a directive

to the Ohio At^omey General to initiate quo warraiito proceedings against Appolloes so that the

funds currently oan deposit with the Franklin County Clerk- of Courts can be released to

Appellants, the lawful directors of Omar Mosq^,je..

31

Respectfully submitted,

^.o---

David T. Ball (^ ^^^^ Bar #0078885)Rosenberg & Ball Co.4 LPA395 North Pearl StreetGrwiviller Ohio 43023TeL: 614.316,8222Fax: 866.498.0811Email: dave,rbl^^^^^mail.^orn

J^^rs^ -----......... . ..-v...__..._........ ...... ..^Fazeel S. Khan. (Ohio Bar #0078875)Blaugrund, Herbert, Kessler, Miller, MyersPosta,:lakis, Inc.3 00 W. Wilson Bridge Road, Suite 100Worthington, OH 43085Tel.: (614) 764n0681Fax: (614) 764-0774Emai1. fsk@bhmlaw.com

Attta€°n4^ysfor Appellants

CERTIFICATE OF ^^RV-ICE

The undersigned hereby certifies that a copy of the foregoing was ^enY^^ on all

counsel of record via regular U.S. mail oii'Eebruar,r 12, 2014.

DavidT. Ball

32

IN THE SUPREME COURT OF 01110

State^ 1;x Re1. Hamid Salim^ et a1,,

Appellants9

S.C. Case No. 2013-1. ^^6

C,A, Case Noe 12AP--356

VS.

Mounir Ayed, et aL,

Appellees.

On Appeal -from the FranklinCounty Court of Appeals, 1`en1hAppellate Distri^t

APPENDIX TO ^RIT BRIEF OFAPPELLANTS STAT^^ EX RELo HAMID SALIM, ET ALa

David T. Ball (#0078885)(CO1^SE:f:, OF RECORD)Rosenberg & Ball Co., I1-PrAV395 North Pearl StreetGraffvil.1e, Ohio 43023614316.8222 telephone866.498.0811 1'acsin-Aleda.ve.rblaw; r),gmail..^om

Marye1len Coma Reash (#0059851)(COt1NSEL OF RECORD)Reash Law Offices, LLC1170 Old T-lendersrn RoadSuite 118ColLmibuss Ohio 4322061 4.442.1. 323 telephone614a538-1 806 facsimile^^^eashlaw@gmai.1.,com

Fazee1 S. Khan (#0078875)Blaugrund, Herbert, Kessler,Miller, Myers Postalakis, Inc.30€1 W. Wilson Bridge RoadSuite 1 00Worthin.gton., OH 43085614.764.0681 telephone614.764,0774 facsimilefsk.@blmlaw.^^m

Attorneys for Appellants: State, ExRel> Hamid Salim, Khaled Khamees,Nihad Al ^haliclag Foua€1 ElFaour,Dina Y. Ali and Hagar Diab

Rateb Khasawneli (40072424)Khasawne1i & Associates, LLC1170 Old Henderson Rd., Ste. 116Columbus, Ohio 43220Telephone: (614) 459-6331Emailo 1;ha^wAmehr@gma.locom

Attorneys for Appelleeso Mounir AvedgGhassan Bin ^^mm^^, Nasser Kashou,Qussai Marashdeh, and Noorgul Dads

OA082 - G68

IN T^ SUPREME COURT OF ^^^^

STATE, EX RELa HAMT^ SALIM, ET AL.g

VS4

APPELLANT,^: ..... ...

CASE NC3

MOUNIR AYED, ET ALo,

APPELLEES.

NOTICE OF APPEAL

Fazeel S. Kian (0038875)Blaugrund, Herbert, K€;^^ler, Miller,Myoa-s & ^^stalakis, hw,300 W. Wilson Bri^^e Rder 9100WorLhington; Oliio 43085Te1.. (614) 764-0681Fax: (614) 764-0774E-mail: fiqkCabl^1awcoe^

David T. Ball (0078885)R^senbffg & Ball Co_y LPA395 North Pearl Street(iranvil^^, Ohio 43023'l; e1..: (614) 31. ^^^^^2Fax< (866) 498-08I 1Einaal: s^aw-.rblaw^^^mai1xom

^^^^^eyf^^ ^^^^^^^^^

^^^^llen ^^^^a R^ash (0059851)Reash Law Offices1170 Old Henderson Road, #118Columbus, OH 43220TeL: (614) 442-1323Fax: (614) 538R1806mca•^ashla^@gmai1.com

^^^^ ^ ^awneb (0072424)Khasawn6h & Associates1 170 Old Henderson Road, #116Columbus, OH 43220Tel. : (614) 459-6331Fax: (614) 459w8119Email; kh^^awne1^^gmaaLcwn

Attorney,^€zr A,^^^llees

I

^€.IME ^^^dff

.^p ,^' ^ ^

OA082 - G69

NOTIC^ ^^ ^^^^^^ ^F APP^LLANTS

Notice is given tlia¢ .^ppe,.latits, State, Ex Rei. ^^^id Saliw, et alo, ^^ ^^^e above-captgoned

matter, hereby appeal ^. om the judgment of the ^^tzt of Appeals Df Ohio, Tenth Dimact, Case

'°^o. ^ 2A€"-35^ (copy attached).

TTtis is ^^ appeal ffom a decision of a court of appeals in a case that originated in the

cauxt of appeals and that invokes the appo1late jur^s^^tion of the Supreme Court (per

S.O.^rac.R. 5.01).

Respectfully submitted,

FAZEEL S. ^HA^^ ^0078875^^^^ugnmds Herbert, ^^^^ler, Miller, Myers& Pr^^^dakisg In^^^^t-ated300 West Wilson Bridge Road, Suite 100Wordiington, OH 43085Tel: (^ 14) 7.^'s4-0^81Fax: (614) 764-0774Eaxiail: fsk 0abbralaw.^orn

DAVU) T. BALL (0078885)Rosereverg & Ball Co., LPA^^^ ^ordi ^pael St^^^tGranville, Ohio 43023Tel.: (614) 3I6^8222Fa^ ^ (866) 49$-0811EmiL° dave.r'^lawCaygmail.^om

Attonicyrs for Appellants

2

49X2

,

OA082 - G70

FROOF2^+° SERVICE

This will ^ortffy that a true and correct copy of the foregoing Notice of Al;peal was

served by regulaa° US. Ma11on °s 12^ day of ^^cembax, 2013 ^^on;

CN

S9

83

140

CL

£^

M0

ZI

,°9

63^

Maryellen Coma Reash (005 9895 1)REASH LAW OFFICES1170 ^ld ^endt^rson Road, Stc. 118C;^lunihus, Ohio 43220

and

Rateb C'.lt.oWs^ ^ohyd Khasawnw^ (0072424)KHASAAN,EH & ASSOCIATES, .1.,L(f.1170 Old Hendor^on Roa4l, Ste. 116Columbus, Ohio 43220

Attorneys for Appellees

FAZEEL S. ^

3

A4a X^

OAC3 7a - V50

IN THE COU^..^ OFAPPRALS; OF OHIO

TEN'I'H .1^^^^ ^ATE DIS"''R-TCT

State ex relo Haa^^^ Sal^m et ^.lrY

Relators,

V.

Moun^^ Ayed et al..,,

No. ^2A.P-356

(R^GULAR CAL^'^NiDAR)

Respondents. f^

J^DGME^. ^'`t BKRY

For the reasons stated in the decision of this ^ot^^ rendered herein oii

November .53 2013, we Overۥ^^ ^^lAtOTS' first, thitdr fifth, e:igh, elev^^tb.; Nmepllftb.,

tliirteeiitb,, and ^ourteen:^li object^ons^ sustain ac-lators' ^^cond, ^ixfthz ni.^thg. and, te^th

obje-etioi-ts; overnile in part and. sustain iipaTt reiators° ^^^^^ ^^^ seventh o4j.ea^^^^^

and disixi^^s thi^ ^^se.. Alth.ra-t^gh, we adopt the niagistratees conclusions of law, we mos.^if^

the, findin^^ of fact as stated i^ the decision. Costs assessed against relaturs.

W^^^^ii three (3) days from the filing hereaf; the der^ of ^hLs court is

hereby ordered to serve upon all parties ^^^^ in default. for fail ute to 4^^eaa n^^ic^ ^^ th%s

jud^^^em and its €^te of entry ^^on the ^^urnal>

#{ ; J!a F + ^ r tP. ` . )

f ,+

-p-^- -- ^_^---- -- ^>Jud^^ `^'^tia^^ A. ^.a^:^, ^resi c^.ing -Sudge

. . . ,,., ._.,

^`:^ ....,........... _....- _....... rr....--;;f .................................................._.___.__..._...

JudgeS^^an^^own

........._._,_ .....................A, /ioA,i

oir ..., .

^^^. ^

OA082 - G71

IN THE COURT OF A^PF-ALS OF OHIO

TENTH A^^ELIA`^ DISTRICT

^

ra

^

$^}

Z

r4

^-ta^e ex rd. Hamid Salim et all.p

Re1a^ors,

V.

Mounir Ayed et aL,

R€^pondents.

No. i2APw356

(REGULAR CALENDAR)

D E C I S 1 0 N

Rendered on Noven-ibey 5, 2013

^^sera^^r^q & Ball Co.9 .^..^.f and David T. Ball; Blaugru-nd,Iferbert, ^^^^^erg Al"^tier, Myeri .^^^^^lakis, .^nc., andFazeeI S. lazark„ for -relators.

Rea^sh Law Offices, and Maryelden Coma ReszshRKhasawneh & Associates, LLQ and Rateb AfohdKhasawneh, for respondents.

IN'Q'^^ ^ARRANTO

KLATT, P.J.

^j 1^ Relators, Hamid ^allim, Khale^ ^iamees, ^^^^ad Al Ehalidi, ^onad. EIF-ao€jr3

Dina Yo Ali3 and ^iharnmed z'^^ouche, wmine^^^^ this ^rigina'i ac.tion. seeking a wiit of

quo warranto to ^enia^^^ ^^spQand^iN, Mouriir -kyed, Ghassan ^^^ ^^mmanR Na^^ex

Kashoug Qu^^^ ^ara^hdehy ^id Noorgul Dada, as directors of the Masjid Omar Ib^

^attab Mosque (,5Omar Mesfliie`°), an Ohio nonuref€€: corporation that operates a ^law, of

worship for believers of ^lam„

(T 2) ^^^uaut to App.& 3-^8 C€v.R. 5^^^^, &,qd Loc.R, 13(M) of the Tenth D,riet

Coixrt of A^-tpeaJ6p we referred this matter to a i-nagis^^^^ ^^^^ issued a decision, includiag

4xrl S"

OA082 - G72

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findings of fa^.^. aad cs^^xelr^^io^is of law, which is ^pp^^^^ ^^^etoe 'rh^ ^^str,^^^

^^^^^^^^ed that relators can^^^^^ ims^^tute a g^o warranto action in their individual

capacities. ^^^ this x°emon, the ^.agastxa^^ ^^^^^uxienr^^^ that we disraiss relators;

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^^^^laint.

a^ ^) Relators have filed 14 olbje^,^ons to the magistrate's ^ecisgon. The first 1^.

objecha^^^ ^balle-a^^^ certain findings of fact that the magjstrate made. The final two

objections ^^en,^e the m^^^suatef^ legal conclusEon.

^^ ^) First, ^^^ ^^^^ ^^^ ^^e thai; the mag.^tra^^ ^^^ed in ii€rt ^naldng any findings of

fact regarding (i) relators' corn^^iancc with ^tatuciory requa^^^^^^ for calling and

conducting a special dir_em^r cler^tion, and (2) vi.^lations corm^^ted by respondents in

their attempts to impede relators` la.wfu.1 ^ort& Wea^^^gree. Find.'i^^ ^^fact regarding

stat$^^^zy compliance and/or^ ^^^ation. are ^^^^^^rant to the ma^istratee^ ^^^^ conclusion.

The magistrate did not need to issue or rely on such findings of fact to reach the

cons:^^:^iQn that relators lacked the capacity to ^urstie a. ^^^o warraa^^o acdon. Accora^^^g^v3

we overrule ^^^^^ors°first 6,^ectaal-z,

{T,^^ Second, ^^^^^^ ,,,ngue that ^e m^^^^rate erred by stating in para^^^h four

of the findings ^f- fact:1hat "the Initial Board was only. to gowea•n. aznti3 ^^^ ^nd. 2owe" 'We

agree. Based on the undisputed eAd^^^^ bpfo<e the magistrate, the Initial Board was to

go-,yern until the end of 20og. Accorr^^^^gly$we slis^^n r^letars° second ^^^^^^om

(16} Third, relators argue that paragap^ six of the findings of fact a^ erroneous.

Relators, however, fail to identify agy wror in that fuidi^ of fa.ct. Rather, relators fa^^t

the mg^^tratia for not explaining why mosque members did not "°or^^^^e a pa^^i for

change ^iiti1 Fall 2aii." As that ^^^^anation is nr^t a necessary factual predicate for the

magistrate's 3^gal con6lusionb we see no error in the ^^^giAea.te's exc,l^Lsion of the

explanation. Accordingly, we oven-ale.re1ators' third objection.

IT, "^^ Fourth, relators argue that paragraph seven of the fmding.^ of fact is

erroneous ^eca.ii.se it implies that respondents ^^^^^^^ly called the Sepjember 9, ^cll

meeting when, in fact, ^oneemed mosque ^^rnbers first asked for the meeting.

Paragraph seven does not state who called the S^pteinber 9, ^oli. meetir.go That

payagap1i, th^re:^ores does not iyra^^ly what relators say it does.

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Noo i2Als`m356 3

118} By their f€^urth objection, relators also argue that the ^^trate erred in

fixidi^g that the meeting was hdd "to addm-m the coneems raised by certain members and

to get input on what^^^^ should be taken next.°° The only evidence on this point is that

respondents cOed the meeting to address the cs^^^^^^ of mosque members. Therefore,

the magis-tra.te erred by attributing a second purpose-th^ gathering of anput-w-^^ the

in^cting. A^cordinglyx we overrule in part and sustain in part the fourth objection.

fif 9) Pitlli, relators argue that ^^ ^grap1i eight of the findings of faeL ^^oncomly

refers. to the ^^^^^ that o^^^^ ^^ October 8, 9-s:u as a "^^^^unity vote" when, in fact,

it was a °°^urvey,p" Al.tt^^ugh frax~^ed as arguxnent about terminology, the fift-1^ objection

actually seeks a ruling on the legal connotations of the OLtober 8, 2011 ^ ^^. We decline

to issue such a Ming. ^nstea.d, we look to the record evidence to determine whether it

supports the factuaJ. Br^^^^g at issue. Ar-cordang to the evidence, mosque mea^k^^^s voted

on October 8, 2011 on whether (1) to retain the curexat fivewmember board, with the

addition of fc^nr more members, or (2) to hold a-n e1eca.on for nine new board membem

We find no error ^^ the magistrate's char^^erizat^on of this event as a "community vote.°,

Aa^^rdlngly^ ive overrule relators°fifffi objection.

{1110) SgxLhP relators argue that the magistrate erred in paragraph io of the

findings of fact by s^atirg that relators decided to hold the spedaJ. director ^^^^^

meeting. We agree, and thus, we sustain relators' -sixth objection. Paragraph io should

reado "At the Octsa^^r:tx 2oti m+eetira.& a ffnajori.^ of the attendees d^cided to cau a special

m.eedng azi October 22x 2013. to address the issues o^^lp-ctions, membership, and bylaws.,,

^^ ^^^ ^eventb, relators argue that paragraph ij. of the fi-nd^gs of fact

nAscha^actera^^^ the r-esu1^ ^^ the October 8, 2c^ii community vote. Wee agree.

Paragraph ii should readn "According to respondents, on Octolex 8, 2011, :L57 PeOPl.e

voted, and 113 people chose Option ^: the hiitial. Board would remain in place and four

ad€il.#ioital members wogild join the board of d^^ectors^e"

IQF 12} By their seventh objection, zdatozs also argiie that the magi-strate erred in

not addressing the improper Mtiendn^ of votes, chaos, deception, violence, and fraud

that occurred during the October 8p 2a^^ community vote. Because such findings of fact

are lrrelevartt, to the m^^strate`s legal conclusion, we find no error in the omission of

^^^x. 7

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Noo a:2AP-^56 4

those findings of fact, Accordingly, we sustain in pm-t and mY^rrule in part relators'

seventh ob,^ectzon.

{I 131 Eighth, relators argue that p,^a&-ap^ -14 of the findings of fact is erroneous

because it ^in^^^^ that, before their electzon, re3.ata^^ intended to assume control of ^^^

^^^que"s banIc aa^counts. No#hi^Z in paragraph 14 addresses relators' intent; instead,

paragraph 14 merely recounts what relators did affter their election. °^^ record eMence

shows ^hat.P aftei, their election, relators drafted a resolution that would allow them to

assunie ^oiatrol of Omar Mosqpse"^ bank accounts. '^^^^efose} the magistrate did not err in

so f^idiizg. ^^^ordiney, we. €^^erg^ rdat{.^rs.' ^.zal.ath objewt€on.

'q 14) NiratEir relators ar,^ue, ^^-,it paragraph 16 of ^^^e findings of ^^ errciiieoa^iy

states that relators ^le-d suit in the F^anId- ix^ County Court of Common Pleas. We agree.

`^ar Mosque, at the insligati^^^ of the Initial Board, originated the action, in the conmon

pleas cr3urt_ Accord..^gtyt we susttaa.n ^^^^torss ninth objecda,n.

4.1115} T^nth, relators ^^e that paragraph ^.8 of the fmdi^^^ of fact wrongly

^^^trays why ^^^^^Ad^^^^^ decided to conduct an. election for a -neve board of directors.Paragraph 18 states that the Initial Board proceeded witki the ^^ecticin `°[b^ecau^e no

r^^^lu^^^^ of the [parties'] dispute was possible.°° Relat^ns assert that molutioji was

possible. but respondents ^^^ea^^^ia^ly thwarted any ^^^enthd resolution. As the parties,

vig;,rously contest why efforts to ^effle, their dispute fa^l,-A, ^^ sustain ^elatorsY tenth

^^^^ct^on. We inos^ ^^^^gr^^,ah :,8 so -that it read,^^ "Soon thereafter, the ^^iti^ ^^^^i

decidedto h^^dan 6ection :^^r newboard, mombers..f^

11161 Meventh, rel.i.tos^s argm that paragraph ^^ of the findings of fact

erroneously states that an ^nd^^^^i-LIeDt third••^^ty election Camm^^^^ ^vermw the

A^^^] 12, ^o-m electioig and the ^lecdon r^;,^u&ts. ^ncontra^^^^ evidence suppoit^ this

finding, so we find no error in it^ Actordgngly, we ov^rrt.'^^e reIatoas° illh objection.

fil :17} '^elfth, relatoas argue ^^^^ ^^^^rapb ^^ of tl^ findings of fact erroneously

states that 146 9"valid" bOots ^^ri^ ^^ ^^ thC April 21y °0,1°^ elediors.. Relators co^^^^d

that n,o valid votes could be cast because the April 2:k, 2a^i.-. elecU^^ was aUegal, Once

^gainA relators use a cha.€^^nge to, a fin^.l€^^ of fact as a pretext for asserting a legal

argument. We reje€:^ this ga^xnbit. Acwardbaglys we ^errale re1ator i; ^^^ ^^jection.

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No. ^2AP-356 5

18} Thirteenth, relators argue that the maga.sixa^^ erred in concluding that, as

p:^iv^^e citizens, they lack the ability to B1e ar. acfior,a requesting a writ of quo ^^^^nto.

We disagree.

^^ ^^) Relakors correctly point out that the relevant ^t-atutes do not eVlicat^^ state

that a prirate citizen can only insfitute a quo w^rari^^ ^^on when he o-r she is da^^

entitlement to a pubiie office. However, the Supreme Court of Oliao has interpreted file

s-tattitazy scheme to mean exactly that. Amrs^din,^ to the ^tip^eme Court, " 'for persons

other than the Attorney General or a prosecuting attom;y, an aLti^n i-a quo warranto may

be brought by an individ€^. as a private citizen ^^^^ when he Personally is slaizning title to

a pubUc office,a " State ex reL Hawthorne v. Russell, -107 Ob:ao St.,^d 269, 2005aOhio-

6431, 16, quoting State ex reL E. CZeveland .^^^ ^gh^ers' Assm, Local 5oo, internati.

Assn, ofFire Fighters, 96 [:^hiO St,3d 68, ^^o2a-Oh.ioT3527, 110; accord State e-x rel. Cain

u. Kay, 38 Ohio St.2d ^ ^^ 17 ^^^^^^ ("^^e right to bring an action in quo wmTanta rernains,

as at common law, a yight of the state, and, except where title to a public cpffice is involved,

the use of quo warranto ^eumns in the state or its officers.°°). Iff we adopted relators'

argument, we would be contravening Supreme Court ^^^edento We cannot do thate

(11201 Next, relators argue that the office of director of a nonpzvfit corporation is a

public office for quo warranto purposes. We di,.^agree.

{121) fsCl'7he most general disfincti€^n of a public office is, that it embraces the

^^^^orrnance by the iu^^bent of a public function delegated to him as a pat of the

so^^^ ignty of the state, pAp asffire, snich as to p^^perl ^A m^e M^i^. the I^.^m^^^

scope of a^ information in the ^aWre of quo warranto, may be defined as a public

position, to which a portion of the sovereignty of the comity, either legislative, ^er-utive,

or judicial, attaches for the time being, and which is ^er^^d for the benefit of the

puhlic,o „ Id, at x8r qnoti^g State ex ret, A1ftj0 Gem V. Jen-ningsa 57 OhiO St. 41.,^ 424

(1898). A director of a raoupxofit corporation does not perform any ^ovemmen^^

funedon. Moreover, a corporate director ^^^^ the interests of the corporation, not the

public. Thus, we conclude that the office of director of a nan^^ofit corporation is not a

public office.

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(IT 221 In sum, we find that the magistrate did not err in conclu^^^ ftt relators

lack the ability to pursue a quo warranto action in their indi^duai capacaties.

Accordir.glYx we ovemx^^ ^la^ors' LA ob,^^^^om

^^^^) Fourteenth, relators take issue wi^ the ^agistrate`^ ^onelmlora that they

am not deprived of a remedy because either the attom^ general or the ^anklgn. C-ounty

prosecuting attorney can file a quo warranto action on their behalf. Relators aver that, so

far, a^^th^r the attorney general n^^ the prosecuting ^ttom^ has agreed to proceed on

their behalf, While we recognize that the statutory requgremen^,.^ of R.C. Chapter 2733

place relatom in a dffictalt positiora, relators' plight is not a reason to allow them to

proceed with this action. Masjid Omarlbn El .^^tta^ Mosque v. Salz^, .1^^h Dist. No,

i-2AP-8o7, ^^^3-0hio-•2746s 1124. A^^^rd^ugjyp we overrule relators' z4th objection.

(124) Followzg an and^^enden•^ review of this matter, we ovenml^ relators' first,

third, fifth, eighth, eleventh, ^^ft'h, thirteenth, and ^ourteera^i objections; we s^sWra

relatorsz second, sixth, ninth, and tenth ^^^ectfons5 and we overrule in ^^^ and sustain in

part ^elatozs9 fourth and. seventh objectaonso A1^ou,^^ wp- adopt the magistrate's

ocf^^^^ions of law, we ^ ^dify the ^n digs o^` fad- to the extent set forth above.

Objections €^^rmiled in part, sustained in part;cause dismissed.

BROWN and CONNOR, JJ., concem

Chapter 2733: QUO WARRA^.`^TC!

2733^01 Proceedlno. agalnst !, ^ersone

A civil act1oii in quo wom^^^ may be bro^^ght in the name ol"th^ state:

(A) Against a person who usurps, intrudes into, or unlawfully holds or exercises a public office,civil or military, or a 1^ch1se, withigi this state, or an office in a corporation created by theautliorlty of this state;

(B) Against a public officer, civil or military, who does or sul^`e.rs an act which, by la^.^%, works aforfeit€ire of his office;

(C) Against an association of persons who act &s a corporation "'dthln this state without beinglegally incorlsoratedo

Effective Date: 1 0-0 1 m 1 95 3

2733a^^ Proceedl^^^aUinst a ^o^ation.

A civil action in cl^^^ ^varranto may be brought in the raaine of the state against a corporation:

(A) When it has offended against a law providing for its creation or renewal, or an.v amendmentthereof;

(B) When it has forfeited its privileges and franchises by nonuser;

(C) When it has committed or omitted an act which ^nounts to a, surrender of its corporaterights, privileges, and franchises;

(D) When it has misused a franchise, privilege, or right cop-l`effed upon it by law, or when itclaims or holds by contract or otherwise, or has exercised a fraiiehlse, privilege, or right incontravention of law;

(E) When any application for a license to ti°ansact business in this state filed by a foreigncorporation, any aAacl^^ of incorporation of a domestic corporation or any amendment to them,or any certificate of merger or consolidation which set forth a corporate name prohibited by the,Revised Code, has been improperly approved and filed.

Effective Date: 06-15-1978

2733.€13 Jurasdictlon and venue ln -gKo warranto actions.

An action in quo warranto can be brought only in the supreme court, or in the court of appeals ofthe county in which the defandanto or one o:^^^e defendants, -resides or is fouaida or, when thedefendant is a corporation, in the county in which it is s1tuated or has a place of lauslnesse '%lien

Appx. 11

the attomey general files the petition, such action ^a.v be brought in the court of appeals ofFranklin coutity.

Eff^^^^ve Date: 10-01m1.953

^7-33944 Comar^^^^^^^go,wa

A'hen, direetcd by the governor, supreme cowrrL secretary of state, or general assembly, theattomey general, or a prosecuting attorraey, shaE commence an action in quo waiTanto. When,upon complaint or otherwise, either of ^^^^^ officers has good reason to believe that any casespecified in sectici-n 2733,02 of the R.^^^^ed Code can be established by proof, h^e shall commencesuch action.

Effective Date: 06W l. 5-1978

27334^^ ^^^^^^^ action.

The attomey genera! or a prosecuting attomey may bring an actiora in quo warranto upo -n his owtireJataon, or, on leave of the court, or of Pa j€idge thereof in vacation, lk^ may bring the action upon^^^e relation of another person. If the action is brought under division ^^^ of section 2733.01 ofthe Revised Code, he may require security for -costs to be given as i.o. other cases.

F-ffective Date: 10-0I-1953

2733a#^6 Usurpatis^^ of ^trice

A person claiming to be entitled to a publa^ ^^fYiee unl«ArfulIy lieid and exercised by another maybri.r^g, w^ action tlierefor bY.himself or an attorrz^y at law, upon ^iviiig security for e.osts.

E#^^^^iv^ Date: 10-0 1 m 1953

^ ^3107 Pr^^^^ufion fn a^^^^^e of pro^^^^flag„^^^rsr

When the office of prosecuting attorney is vacant, or the prosecuting attorney is absent,interested in the action in q-uo warranto, or disabled, -ttie a;ouit, or a judge thereof in vacation,may direct or permit any meniber of the bw~ to act in his place to bring and prosecute the actiom

Effective Date: 1 0m0 l. -1 953

L733.08^efig^a_M^^^^ erson for usurpatign gf ^fficeq

1^^^ii an action in quo warranto is bra-a^^t against a person for usurping an office, the petitionsha,11 set forth thename of th.e pe.rso:^ claiming to ^^e entitled to the office, with ari averment ofhis right thereto. Judgment may be rendered upon the right of tkae d^^^^^dant, and also o^. the rightof the person averred to be so entitled, or only upon -the right o.^^^e defendant, ^justice reqiiires.

^ppxe 12

All persons who claim to be entitled to the same office or frwichlse may ^e made defendants inone action, to try their respective rights to st€ch office or frane1-i€se.

Effective Date: 10-0 1 m 1953

2733x^^ LL-ave to M2.petltion a notlce .

Vpon application for leave to file a petition in an action ir. quo warraiito, 4che court or judge maydirect notice thereof to be given to the defendant previous to granting such leave, and may hearthe defendant in opposition thereto. If leave is granted, an entry ther^of sh^.1 be made on ttze,^oumal, or the fact shal11^^ ^^dor^ed by the judge on the petition, which shall then be filed.

Effective Date: 1 Q-01 LL 1953

273-1a1.0 Issue c^^ ^^^^^^^^ ^^^ ^ervice

When the petition in an action in quo wa.rranto is f 1ed without leave and notice, a summons shallissue, and be se-rved as in otlier cases. Such summons may be sent to and ret-tir^^^ by the sheriffof any coi.nat;^ by mail. ^li^ sheriff is entitled to the ^^,e fees thereon as if it had been issued andr^^^ed in. l^^ own ^ountye

E ffecti ^^ Date: 1 0-0 1 -1 953

2733a11Ser+va^^ ^^ ^^blicatlong

When a summons in an action in qus) wamnto is retur^^d not served because the defendant, orits officers or office, cannot bc found withiii the county, the clerk of the c;out in which the actionwas brought must publish a notice for four consecutive weeks in a newspaper published and ofgeneral cir^^ation in the county, setting forth the filing and substance of the petiti.ora. Pponproof of such publication the default of the defendant may be entered and judginerat renderedthereon, as if he had been. served wit„ sumrnonso

Effective Date: 10-0 1 m l. 95 3

2733til 2 PIeadlngs after aetitiono

The defendant in an action in quo warranto may demur orfi1^ ^t answer, which may contain asmany several defenses as he has, Mth.in thirty days afl:er the filing of the petition, if it was fi:I ^^on leave and notice, or after the return day of the summons, I'he plaintiff may file a demurrer ora reply to such answer within thirty days thereafter.

E^r.^cti.ve Da,te: 10a01 m1.953

2733y^^ ^^urt mg^ extend time for p1ead1ng

A^x. 13

^^ an action in quo warr^^^o an order may be inade by ^^c court, or by a judge thereof, extendingthe time within which a pleading may be filed. Such order does not work a continuance of thecase.

Effective Date: 10-0 1 -1 953

2733a14 Judament wh^^ ^^^e, franchise €ar ra^^^^ ^ ^^ ^^ur ed9

When a defendant in an. action in quo wananto is found guilty of usurping, intruding into, orunlawfully holding or exer^^^^^^g ara €^fficey franchise, or privilege, judgment shel be re-n€ieredthat he be ousted and ^^^luded. therefrom, a^id that the relator recover his costs.

Effective Date: 10-0 1 a 1953

2733A15 Jue^^^^^t when dir^^tor of a corpra^^tLqn is iIle ILy e^ec,tedb

When an action iD. clu€^ warranto is aga.asist a director of a coxporationo and tlie. court finds that, atIiis election, il^^gal. votes were received or legal votes rejected sut^ icier^^ to change the result4judg€^^^iit may be rendered that the defendant be ouatea^, and of iziduction in favor of the personwho was entitled to be de€:^amd elected.

EfTective Date: 10-0161 953

3 733ti16 New election9

In a case under section 2733.15 of the Revised Codc, the court ixiay order a ne} election to beheld at a, time and place and bYjudges it appoints. N€ytace o1"^^^ e.'tectas^n and namiiig ^uc^^^dg^^shall be givep- as provbded by law f-br rietice of elections of directors of the corporation. Thearder of the court is ob:ligatonr ixpora the corporation and its officers when a duly certified copy isserved upon its secretary personally, or left at its principal. oi^ce. The coivt may enforce its orderby att^^^^ent, or as the coui~t dee^^s necessary.

^fl"e€;tive Date, 10-0 1-1953

2 733017 Rights of per^^^^^^^^^ entitled to an officeq

bf ^udgr^iont in an action i^ quo warx^^t€ is zer^dered in favor of the ^a^gso^^ averred to be erxti^^edto arz office, after taking the oath. of office and executing ar3y official bond required by law, hcrnay ^^ upon him the execution of Lbe office. Inn^^edi.ately t-hereafter such.persora. shall demandof the defendant all books and papers in his custody or wi^liin tiis povmr a^^^^aining to theoffice from which the defendant has been ^uste€ia

Effective Dateo 10m01- l 953

2733.18A^^^^n for damagesa

Appx. 14

Within one year after the date oI'ajudgra^ent .rneiit1^^ed. in sea;tion. 2733.17 of the Revised Code,the person in whose favor the judgment is rendered may brl.^^^ an actlora against the paiy ousted,and recover the damages he sustained by reason of stich usa^^pat1on.

Effective Date: 1 ^-0, 1-1 95 3

2733.19 EnforeemenLgf1^^^Mente

No def^^dant mentioned in section 273 317 of the Revised Code ^haIl refuse or neglect to deliverover any book or paper pursuant to a demand made ander such sectls^^^. Whoever violates tWssection is guilty of a contempt of court.

Effective Date: 1 0-0 1 - 1953

2733a20 Mh^^ ^or oLatlon lt^^ forfeited its rl htsy

When, in an action in quo ^arTantos it is found and adjudged that, by an act done or omitted, acorporation has stuTezadered or.f.orl`egted its corporate raghts, privileges, and franellises, or has notused them duxlng a term of five years, judgrnent sha be entered -ffi-dt it be ousted and excludedtherefrom, and that it be dissol^ed.

When. it is fotmal and adjudged in such case, tt^^t a corporation has offended in. a matter ormanner that does not wor^ such. surrera.der or forfeiture, or has misused a frane1-iise, or exercised apower not conferred by lavv,jr€dgment shall be ^iiterecl that it ^^ ousted from the continuance ofs-uc1^ offense or the exercise of suc1^ ^o-,,vera

When it is found ar-d ^^jud^ed. in such case, that any application ^'or a license to tramac# businessin this state filed by a foreign corporation, a^v articles of incorporation of a domestic ^orporatioiior;an3% amer^dnient to them, or any certificate of merger or consolidation which set forth acorporate name prohibited by the Revg^ed Code h&s ^^^ii linproperly approved and filed,,^^dgknent shall be entered that the corporation be ousted fr€^ni the eciitir^^^^ use of suchcorporate naine.

Effective Date: 1 0-16n1.980

2733Q21 DLsIolutirn , of corporataon R a^^^^ment of tr^^^^^^ ^ ^ courte

The court rendering ajudgment dissolving a corporation as provided in. section 2733.20 ^^theRevised Code shall appoint a trustee or trustees, ^^^^ exceeding three in number, for the benefit ofthe creditors and stockholders thereof, who shall each give ^i ui-idertaka^^ payable to this state,;n such sum ^d with such sureties as the court designates and approves, conditioned that they-wi1l faithfully discharge their respective trusts ir. accordance wit-h the orders ol` sucl^ ^^tirt or ofthe co-urt to which such quo w^aiita proceedings may be remanded, as provided in section273302^ of the Revised Code, and properly pay and apply all money and other property thatcomes into their hands as such. trustees, in tiecordan^e with such oraers,

Appx. 15

Effective Date: 1 0-0 161 ^^^

^ 7,33,^2 Remanding to court of common pleasa

Upon the appointment and qualification of trustees under section 2733.21 of the Revised Code,the supreme court, or the court of appeals in which the quo warranto proceedings have beeninstituted, may remand the proceedings to the court of cssrrurrion pleas of the county in which thecorporation has or last had its principal place of business for further proceedings. Whegi theproceedings are r^ma^ided, the court of cornm^^^ pleas has fffilljurlsdi^tion, and the same powerwi^^ reference thereto as the supreme court or court of appeals would 11d^^ had if suchproceedings had ^^^^ been remaxrled. Thejur€sdictior^ of the supreme cotut or court of appa^over the proceedings ceases upon such remand.

Effective Date: l 0-01-1 953

2733,23 Order of court.

Any party to a quo warranto proceeding against a corporation, including trustees appointed asprovided in section 2733.21 €sl"theRevgs^^ Code, may appeal ^^om any order made in sLichproceedings in the same rrAanner as in civil cases. The ord.ers of the court in which suchproceedings are irzstitizted or to which they are remanded are binding upon the trustees,stockholders, creditors, and other persons interested in such corporation, unless reversed byappropriate proceedings.

EfTectgv^ Date: 10-01-1953

27-33a24 Dutfes of trustees as to noti^^ ^^ ^^^urt orderK

^^^^n the appointment and qualification of trustees under section 2733,21 of the Revised Code,they sliall forctliwith give notice of the order dissolving the corporation, of their appointment astrastees, and of the date of their appointinent, by publication once a week for four consecutive^^e'Ks in a newspaper of general circulation in the cotiraty in which the corporation has or had i^principal p1ace of business. Such. notice shal] require all persons having claims against thecorporation to file them with such trustees wltlxin. ninety days from the date of their appointment.All claims not filed within ninety days from the date of the aD^a^i^.tm^;nt sl^^.ll be barred asagainst s^.c1^. trustees and the property of the corporation, un1^W^s the ^o-urt, for good catis^ shown,orders oihenvise.

I;^ective Dateo l0-01-1,953

2733<25 fle Ijected clalmsy

If, in the j udgment of the trustees appointed as provided 111 section 273 321 of the Revi^^^ Code,any claims filed with them as pro'videcl ln-section 2733,24 of the Revi^ed Code are for any reasonnot valid claims against the estate ol'th^ corporation, the tnistees shall rio-tify the claimants thattheir respective claims are rejected by written notice by registered mail, directed to 'he c1aimants°

Appx. 16

last known, address. Sach. claimants, at awd time withiii n?^^etv days from the mzalx-ng of suchiioti^^ of rqj^ction, may sue such tnist^^s f-br the recovery of such claims in any court ofc^irkDetentjuriscllction L-i the county in wbi.ch su€ah corporation has or hatl its last principal pl^^eof bu^iness. Should such. suit finally ^^^^^nate in favor of the claimant, the judgment therein.obtained by Mm is entitled to share with other clairns against the corporation, in the ma,rmer and'ts^ 'th^ same extent as if tfie claim had been allowed in the first instance by ti-ie trustees. T-Tpoti thefailure of a clair.iant to bring suit within iiin^^ days from ^^^ date of the malling of the noticethat it is rejected by the trustees, the claim is barred against thw trustees or the property of thecorporation, imiess the court for good cause shown oader^ otherA,7ase.

^tY^ctive Date: 10m0 1- 1.953

27339^6 Powers of trustees.

The tmst^^s appointed as provided in section 2733o21 of the Revised Corle wre sul.^^^^^ to theorders of the court appointing thern, or of the court to which the quo,"^arranto proceedings areremanded, and are vested with the title to all. 14e property, real and personal, of the corporationfrom the date of their appointment and ^tmli^cation3 and subject to the orders of the court maysettle the affairs of the corporation, collect aiid. pay outstanding d6bts, and divide among thestockholders the money and ottiez• property which remains after the payment of debts and^^^^^^sary expenses. Sa1d trustees may fi1e in the court oftlZei^ ap. poli-itxaent, or in the court towhich siieh procee(l.in.^^ are remanded, motions, appl.lcatiorgs for instructions or orders, and otherpleadings. In ^ie enforcement of any demarads said traste^^ have all rights which thestockholders or creditors ofth^ corporation might otherwise be entitled, to enforce, in addition to6-ie rights of the corporation ltself. The stockholders i^d creditors of such cor^ot-dtgon may notenfox^^ any such rights except upoii the refusal of sucli. tnistees to do so within a reasonable timei^pon dew-aald therefor by such stockholders and creditors.

Effextg ^^ Date: l 0•-t)1- l. 953

2733e27 I?^mands bv trusteesa

Ifrustees, upon their appointment and qualification as provided in section 2733.21 of thef.evisedCode, shal; forthwith demand all money, property, books, deeds, notes, bills, obligations, andpapers of every description writhi^^ the custody, power, or control oftl^e officers of thecorporation or any other persons, belonging to the corporation, or in any way necessary forsettlement of its affairs or for the discharge of its -deb^s and liabilities. Such t-ust^^^, withoutleave of court, may sue for and recover in the name of such trustees the demands and property ofthe corporation, ^^^ they are severally liable to the creditors and stockholders toful.ly andfaithfWly administer their respective trusts, in accordance wilh the orders of the court.

Effective :17ate ; l0-0 l a 19 53

2733.28REnar^ ^^ ^^urte

^pm 17

"Lb.e tmstees shal, as soon as possible after t1ieir appc€in.tn-ient under section 2733.21 of theRevised Code, pr^^are. and report to the court a statement of assets and liabilities of thecorporation. At such. times as are ordered hy such cour, the trustees shall report to it theirpr^^^edin-^s as such trustees. Upon collecting such assets as are collect^^^e and disbursing themto the appro-val of such court, the trt€stees and their sureties, by order of such court, sh^^ bedischarged from any fijrther liability in the premises.

Ef&^^iv^ Date: 10-0 1 -1953

2733e^9 P^oh^^^^^^^ ^ ^^ng-rg^'€€^^^ to deliygM^ lrtv of cor 2Lation t^ trustees4

No officer of a corporation shall refuse or neglect to deliver over money, or other things,pursuant to a demand made by tb.e trustees as provided in sectior€ 2733.27 of the Revised Code.ikn^ ^^^^^r violating this section is guilty of contempt of court. Such officer is also liable to thetrustees for the value of all money, or other things, so refused or neglected to be surrendered,together with the damages suswi€€ed by the stockholders and creditors of the co-rporation inconsequence of such neglect or ref^sal.

^^^ective Date 1 0-01 -1953

2733a30 Costsa

If, in an action in quo warrar€too judgmer€t is rendered agai€€^t a corporation, or against a personclaimi€ig to be a corporation, the court n€ay render j €.€dgment for costs against the directors orother officers of the corporation, or against the person cWmin^ to be a corpor^.:^ion.

Effective Date; 10a01 -1953

2733y31 Order to defiver ropeE ^ ^fo€°ee€^a

In an actior€ in quo warranto, Whenjudgment is rendered agai€ast the defendant, the court maymake an order directip.g him forthwith to deliver over tt€e books, papers, property, €^^4^ney, deeds,notes, bills, and obligations to the persons entitled thereto, or to the tr€.€stees appointed to receivethem, and may ser€d a transcript of the proceedings, including a copy of such order, to the courtof comnion pleas of t-b.e proper county, with a. special mandate directing such court to carry itinto effect. On complaint being made to such co€.€rt of common p1eas, by af-Iidavity of a neglect orrefusal to coanply wittz such order, tl€at court shall dircct an ^ttachrnent to issue for th^ defendant,r^tumab1e forthwith, who may be required to answer under oath to:;€ch.ing the prcma^^^^ If itappears $hat the defendant neglects or refuses to comply, the court shall renderjudgmer€t forpenalty or imprisonment, or both, such. as the court making the order might haverendered.

Effective Date: 10s01-1953

2733032 Ini^^^^^^ in certain casesa

Appxe 18

A stockholder, or stockholders, owning not less thap. one fourth of the capital stock of a barikingassociation actually paid in, or entitled to the ^enefic1a1 interest therein, pending proceedings 1r^quo wman^o against such association, may 1ave an injurict1on restraining the directors thereoffrom making any disposition of the assets of such association prejud1cial. to tlre interests of ^ue-h

st€^exho1ders7 or m^ons1.stent wi.th their duties as d.1rectors.

Effective Date. 10r01-1.953

2733.33 Cs^^^ may ^^ ^ire bank d1Lre€tors to ive - secur°i^

t1ps^n satzsf^.ctor^' PxOOf that the ^.1x•eetor^ ^f'a banking association mention .ed in secW1on. 2733.3?

of the Revised Code h-ave violated or are a^out. to violate ami o-f its franchises, the c ourt, or. a

judge thereof in vacation, may reqiiire, the d1rectors'^a give security to the stockholders, to the

sat1sfactlore. of the court orjudge.. for tie proper discharge of their duties anc1 the manage:^ent

and security of the assets. Such court or j Lid€,^^ may cnjoin the directors from incLirri^^ ^^^^

add1t.1u.na11ia1:siliti.es except for the paynion.t of the. necessary services of the officers andempioyees oiEthe bat,:.1aig association, the am.ount of wtfichs while the qijo warranto proceedings

are pending, s1i11 be u^^der the control of tl^e court.

Effective Date: 1 qm0l.a1953

^^^^xininongy.2733e^^ Eii'^^in ^ire ^^ors frzjm bo^°ro^^^^g or

On petition, th^ court or judge may enj sslra the directors of a banking assoc1atior? mentioned insection `^^13.32 of the Revised Code ^om. borrowing or issu1ng; d1rect1y or indirectly, any of the^^o-lrey orassets of such bank, -for their iarzli^^idua1bergefit, Nvh11e t1^^ q-Lio warraixto proceedings

are pen.diiig.

E^'ectave Date: 10n01-1953

2733a35'Limitations.

tkctions in quo warTanto against a coaporationfior forfe1ture of its tiharter shall be commenced

within five years a1"-^er the act corn.plained. of was done or ^ornm1tted. No act1on.1n quo warranto

shall be 'Droazght ^gai-n.st a corporation for ^he, exercise of a pmver or frafic1^^e under its charter,

which. it has used and exercised for a term of twenty ^ears. No action zn. quo warrmto shall be

brought against an officer to oust him from his office, unless it is brought wisl^in.three yea.Ysa1`ter

the cause o-f such ouster, or the right to hold tbe o. ..f^..^ceo arose.

Effective I)ate, 10a01-1953

2733,36 Act1o^ t1olls9

When, in an action in quo warranto, judguent of forfeiture and ouster is rendered agamst acorporatiork because of misconduct of tl^e rsft-icers or directors thereof, vrith1n one year thereafter

Appx. 19

a pe-rson injured th.ereby, in an ^ct1o€^ against such officers or directs^^^, may recover the dayna,^^s

he has sustained by reason of such m..€scond^cL

f;ffect1ve Date. 1 0-01-1 953

273137 R^^^^^^^ ^^^^lativeo

Sections 2_7^3.41 to 27-33,39A lnclusave; of the Revised Code do not restrain ^^^ourt from

enforcing the performance of trusts for charitable purposes, at the relation of the prosecuting

att^^^^ of the proper county, or from enforcing trusts or restraining abuses in other

coTtoratl^^^, at the suit of a person injured.

Effective Date: 10-01-1953

2733a38 , DiMo:^^^^^ ^^ rines9

Fines collec ted under section L733.99 of^e Revised Code shall be paid into the treasury of the

proper county for the use of the schools as provided in section 3315 of the ^evise^. (;ode.

E^'ectave Date: l 0-0l -1. 953

2733a39 Action^ ^^ ha^^ recedencee

Actions in quo warranto have precedence over other civil business. If the matter is of piabliccssncemA on motion of the attomey general or prosecuting attomey the court shal require asspeedy a trial of the merits of the case as is consistent with the rights of the parties.

Effective Date, 10-0i-1 ^^^

^nL.^^ ^^^^llia

(A) "W'haever violates secti^ii 273 3 .19 or 273 3e29 of the Revised Code sliall be fined not morethait ten. thousand dollars and imprisonneedd in th^ ^ounty, jail untii. he complies with the order of

the court, or is otherwise legally discharged.

Appx, 20