State ex rel. Hawthorn v. Russell ( 2005 )

[Cite as State ex rel. Hawthorn v. Russell, 107 Ohio St. 3d 269, 2005-Ohio-6431.]
THE STATE EX REL. HAWTHORN ET AL., APPELLANTS, v. RUSSELL ET AL.,
APPELLEES.
[Cite as State ex rel. Hawthorn v. Russell,
107 Ohio St. 3d 269, 2005-Ohio-6431.]
Quo warranto — Corporations — Standing — R.C. 2733.05 and 2733.06 — Only
Attorney General and prosecuting attorneys have standing to seek writ to
challenge right to nonpublic office.
(No. 2005-0771 — Submitted October 25, 2005 — Decided December 21, 2005.)
APPEAL from the Court of Appeals for Summit County, No. 22380.
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Per Curiam.
{¶ 1} This is an appeal from a judgment dismissing a complaint for a
writ of quo warranto.
{¶ 2} On October 28, 2004, appellants, Reverend Bruce E. Hawthorn
and Reverend Ronald S. Beers, filed a complaint in the Court of Appeals for
Summit County. They sought a writ of quo warranto to remove appellees Walt
Berry, Robert Rogers, Glenn Riggenbach, Isaac Rufener, Glen Miller, Cecil
Young, and Gary Spriggs as directors of appellee Barberton Rescue Mission, Inc.,
a church and nonprofit corporation with its principal place of activity in
Barberton, Ohio. Appellants claimed that they are lawful directors of the
corporation. Appellants also named appellees Reverend Howard Russell and
Reverend Richard Lupton, who are current directors of the mission, as additional
respondents.
{¶ 3} Appellees moved to dismiss the complaint under Civ.R. 12(B)(6)
for failure to state a claim upon which relief can be granted. They claimed that
appellants lacked standing to bring the quo warranto action. The Attorney
SUPREME COURT OF OHIO
General moved to intervene as a respondent and submitted an answer. In his
answer, the Attorney General included as an affirmative defense that appellants
lacked standing to institute the quo warranto action.
{¶ 4} On March 17, 2005, the court of appeals granted the motions and
dismissed the complaint.
{¶ 5} This cause is now before the court upon appellants’ appeal as of
right.
{¶ 6} We affirm the judgment of the court of appeals. “[A]s we have
consistently held, for persons other than the Attorney General or a prosecuting
attorney, ‘ “an action in quo warranto may be brought by an individual as a
private citizen only when he personally is claiming title to a public office.” ’ ”
State ex rel. E. Cleveland Fire Fighters’ Assn., Local 500, Internatl. Assn. of Fire
Fighters, 96 Ohio St. 3d 68, 2002-Ohio-3527, 771 N.E.2d 251, ¶ 10, quoting State
ex rel. Annable v. Stokes (1970), 24 Ohio St. 2d 32, 53 O.O.2d 18, 262 N.E.2d
863; see R.C. 2733.05 and 2733.06. Because the office of director of the
Barberton Rescue Mission was not a public office and appellants are neither the
Attorney General nor a prosecuting attorney, appellants could not institute their
quo warranto action.
{¶ 7} Moreover, as the court of appeals correctly held, appellants’
reliance on R.C. 2733.07 to claim ability to institute the action does not warrant a
different result. R.C. 2733.07 provides, “When the office of prosecuting attorney
is vacant, or the prosecuting attorney is absent, interested in the action in quo
warranto, or disabled, the court, or a judge thereof in vacation, may direct or
permit any member of the bar to act in his place to bring and prosecute the
action.” It is undisputed that appellants are not attorneys and that no court
directed or granted them leave to file their quo warranto action pursuant to R.C.
2733.07.
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January Term, 2005
{¶ 8} Furthermore, regardless of whether this is considered an issue of
standing, as we have previously held and the court of appeals found, or an issue of
legal capacity, as appellants claim on appeal, appellees specifically raised this
issue in their answer and motion to dismiss. And appellants waived their
appellate argument that this is an issue of legal capacity by failing to raise that
objection to appellees’ dismissal motion in the court below. See State ex rel.
Mora v. Wilkinson, 105 Ohio St. 3d 272, 2005-Ohio-1509, 824 N.E.2d 1000, ¶ 17.
{¶ 9} Therefore, because it appeared beyond doubt that appellants could
not prevail in their quo warranto action, given their inability to bring it, the court
of appeals correctly dismissed it. Accordingly, the judgment of the court of
appeals is affirmed.
Judgment affirmed.
MOYER, C.J., RESNICK, PFEIFER, LUNDBERG STRATTON, O’DONNELL and
LANZINGER, JJ., concur.
O’CONNOR, J., not participating.
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Black, McCluskey, Souers & Arbaugh and Thomas W. Connors, for
appellants.
Vorys, Sater, Seymour & Pease, L.L.P., Philip F. Downey, and James A.
Hogan, for appellees.
Jim Petro, Attorney General, and Sherry M. Phillips, Principal Attorney,
Charitable Law Section, Attorney General’s Office; Amer Cummingham Co.,
L.P.A., and Thomas M. Saxer, for intervening appellee Attorney General.
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