Richardson v. Girl Scouts of N.E. Ohio ( 2014 )


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  • [Cite as Richardson v. Girl Scouts of N.E. Ohio, 
    2014-Ohio-1036
    .]
    STATE OF OHIO                      )                       IN THE COURT OF APPEALS
    )ss:                    NINTH JUDICIAL DISTRICT
    COUNTY OF SUMMIT                   )
    LYNN RICHARDSON, et al.                                    C.A. No.   27127
    Appellants
    v.                                                 APPEAL FROM JUDGMENT
    ENTERED IN THE
    THE GIRL SCOUTS OF NORTH EAST                              COURT OF COMMON PLEAS
    OHIO                                                       COUNTY OF SUMMIT, OHIO
    CASE No.   2012 03 1636
    Appellee
    DECISION AND JOURNAL ENTRY
    Dated: March 19, 2014
    WHITMORE, Judge.
    {¶1}         Plaintiff-Appellants, Lynn Richardson, Lucia Hanigosky, Corey Ann Ringle, Lou
    Spilker, Kerrin Winter-Churchill, and Rachel Oppenheimer (collectively, “Appellants”), appeal
    from the judgment of the Summit County Court of Common Pleas, granting summary judgment
    in favor of Defendant-Appellee, The Girl Scouts of North East Ohio (“the GSNEO”). This Court
    affirms in part and reverses in part.
    I
    {¶2}         In 2007, the GSNEO formed through a merger of five existing Girl Scout
    Councils.      Its     Board began to develop a “strategic plan for guiding the future of the
    organization.” As part of this plan, the Board performed various assessments of the camps
    owned by the GSNEO.              For example, the Chief Financial Officer performed a financial
    evaluation of operations of the camps, and the Property Committee was tasked with the duty “to
    evaluate the camping property and to come up with a direction for the property that fits the
    2
    mission of the Girl Scouts.” The Board also received input from Glenn Chin, a staff member of
    the Girl Scouts of America, who performed an evaluation of the camps and submitted a
    recommendation to the Board to sell certain properties.          In 2009, the Board formed a
    membership led “Vision 2012” Committee. “The purpose of Vision 2012 [wa]s to assess the
    condition, value and programs that take place at camp properties, and make recommendations
    regarding the future use of the properties.”
    {¶3}     Barbara Parkinson served on the Vision 2012 Committee.              According to
    Parkinson, in March 2011, the Vision 2012 Committee informed the Board that it did not have
    enough data to make a recommendation. Parkinson testified that the Committee requested more
    time to collect data before making any recommendation. Parkinson further testified that, at the
    April 2011 meeting, a member of the Property Committee falsely informed the General
    Assembly that the Vision 2012 Committee had recommended that the GSNEO sell all but two of
    its camps.    Surprised to hear the Board intended to pursue the sale of camps, members of the
    General Assembly called a special meeting.
    {¶4}     At the special meeting, held the same day as the October 2011 annual meeting,
    two resolutions were presented for a vote. The first resolution was to amend the Code of
    Regulations (the “Regulations”) to require the Board to obtain an approval of two-thirds of the
    General Assembly before selling any real property. Because this proposal involved a change to
    the Regulations, a two-thirds affirmative vote from the General Assembly was required. This
    proposal did not receive the necessary votes to amend the Regulations. The second resolution
    did not involve a change to the Regulations and, therefore, only needed a majority of the voting
    members present at the meeting to pass. This second proposal read:
    a resolution requesting that the Board of Directors immediately cease and desist
    all activities in connection with the transfer of any real property held in the name
    3
    of [the GSNEO] until such time as any such pending, anticipated or planned
    transfers may be approved by a vote of two-thirds of the voting members of the
    General Assembly participating and voting at a meeting held pursuant to Article II
    Section 3 of the [Regulations].
    This proposal passed, receiving a majority of the voting members’ approval.
    {¶5}    At the regular meeting that immediately followed, the General Assembly again
    rejected a proposed amendment to the Regulations to require the Board to obtain the approval of
    two-thirds of the General Assembly before disposing of any real property owned by the GSNEO.
    The council then held its annual vote to elect members to the Board. The Regulations provide
    that the Board of Directors shall include “at least ten (10) but not more than fifteen (15) * * *
    Directors-at-Large.” The Regulations, however, do not detail how the number of Directors-at-
    Large is to be set within that range. At the meeting, the Board informed the General Assembly
    that only five positions for Director-at-Large were to be filled, bringing the total Directors-at-
    Large to twelve. A member of the General Assembly objected and requested an explanation as
    to why the General Assembly could not elect eight Directors, to bring the total number of
    Directors to the maximum of fifteen. The Board stated that, according to the Regulations, the
    Board’s Development Committee has the authority to set the number of Directors-at-Large
    within the permissible range. The Board told the General Assembly that any ballot with a
    selection of more than five Directors would be invalidated in its entirety.
    {¶6}    In December 2011, the Board, without seeking the approval of the General
    Assembly, voted to move forward with the sale of the various camps and began seeking bids
    from interested buyers.
    {¶7}    In March 2012, Appellants, as members of the GSNEO, filed an action seeking a
    declaration that: (1) the Board was bound by the resolution passed at the special meeting in
    October 2011 and, therefore, could not proceed with the sale of the camps without an approval of
    4
    two-thirds of the General Assembly; (2) that the General Assembly, and not the Board, has the
    right to select how many Director-at-Large positions should be filled within the range set by the
    Regulations; and (3) because the October 2011 election was improper, the Board did not have the
    power, right, or authority to act on behalf of the GSNEO and all its decisions subsequent to the
    October 2011 election are void. Additionally, Appellants sought an injunction to prohibit the
    Board from selling the camps.
    {¶8}    After a three day hearing, the court denied Appellants’ request for a preliminary
    injunction.   Subsequently, the GSNEO filed a motion for summary judgment.               Appellants
    requested additional time to conduct discovery before responding to the GSNEO’s motion for
    summary judgment and filed their memorandum in opposition forty-five days later. In October
    2012, the court granted the GSNEO’s motion for summary judgment, and Appellants filed an
    appeal. This Court dismissed the appeal because the judgment entry was not a final, appealable
    order. In September 2013, the trial court entered another order granting the GSNEO’s motion
    for summary judgment. Appellants now appeal from that order and raise five assignments of
    error for our review. To facilitate the analysis, we rearrange several of the assignments of error.
    II
    Assignment of Error Number One
    THE TRIAL COURT ABUSED ITS DISCRETION BY SEVER[E]LY
    LIMITING THE MEMBERS’ OPPORTUNITY TO CONDUCT DISCOVERY.
    {¶9}    In their first assignment of error, Appellants argue that the court erred when it
    limited the areas they could pursue in discovery. Specifically, Appellants argue that the court
    “sua sponte determined three factual areas that it believed were relevant to responding to
    summary judgment” and limited discovery to those areas. Additionally, Appellants argue that
    the court limited their ability to conduct depositions.
    5
    {¶10} On June 20, 2012, the GSNEO filed a motion for summary judgment. Appellants
    responded with a request for an extension of time to conduct additional discovery. About a week
    later, the judge sent an email to the parties with a draft of an order granting Appellants’ request
    for additional time and limiting the scope of discovery. The email indicated that the order would
    be “cleaned up” and filed on the following Monday.           However, no such order was ever
    journalized. Appellants now cite to the email as evidence that the court limited discovery.
    {¶11} The Ohio Supreme Court has repeatedly stated that “a court speaks exclusively
    through its journal entries.” In re Guardianship of Hollins, 
    114 Ohio St.3d 434
    , 2007-Ohio-
    4555, ¶ 30. “It is axiomatic that an order must be journalized, or ‘filed,’ before it may be
    considered valid.” State v. Leason, 9th Dist. Summit No. 25566, 
    2011-Ohio-6591
    , ¶ 8. “[I]n the
    absence of a time or date stamp from the clerk, the question is whether there is sufficient
    evidence from which a court may determine that the document was actually filed.” Zanesville v.
    Rouse, 
    126 Ohio St.3d 1
    , 
    2010-Ohio-2218
    , ¶ 10, vacated in part on other grounds, 
    126 Ohio St.3d 1227
    , 
    2010-Ohio-3754
    .
    {¶12} On review of the record, this Court cannot determine that the draft in the email
    was intended to be the final version of the order or that the court did not change its mind and
    decide against filing the order altogether. Because there is no evidence that an order limiting
    discovery was ever filed, this Court has nothing it can review. With no evidence of the court
    limiting discovery, Appellants’ first assignment of error necessarily fails.         Accordingly,
    Appellants’ first assignment of error is overruled.
    Assignment of Error Number Three
    GENUINE ISSUES OF MATERIAL FACT EXISTED CONCERNING
    WHETHER GSNEO PROPERLY EXERCISED ITS BUSINESS JUDGMENT.
    6
    {¶13} In their third assignment of error, Appellants argue that the court erred in granting
    summary judgment because “there were sufficient facts to create an issue with respect to whether
    GSNEO’s decision [to sell the camps] was predetermined and whether the data they purportedly
    relied upon was manipulated to justify the predetermined end result they desired.”
    {¶14} Pursuant to Civ.R. 56(C), summary judgment is proper if:
    (1) No genuine issue as to any material fact remains to be litigated; (2) the
    moving party is entitled to judgment as a matter of law; and (3) it appears from
    the evidence that reasonable minds can come to but one conclusion, and viewing
    such evidence most strongly in favor of the party against whom the motion for
    summary judgment is made, that conclusion is adverse to that party.
    Temple v. Wean United, Inc., 
    50 Ohio St.2d 317
    , 327 (1977). This Court reviews a trial court’s
    decision to grant a motion for summary judgment de novo. Grafton v. Ohio Edison Co., 
    77 Ohio St.3d 102
    , 105 (1996).
    {¶15} The party moving for summary judgment bears the initial burden of informing the
    trial court of the basis for the motion and pointing to parts of the record that show the absence of
    a genuine issue of material fact. Dresher v. Burt, 
    75 Ohio St.3d 280
    , 292-293 (1996). Once this
    burden is satisfied, the non-moving party bears the burden of offering specific facts to show a
    genuine issue for trial. Id. at 293.
    {¶16} Appellants filed a complaint seeking a declaratory judgment and an injunction.
    Specifically, Appellants sought the following:
    (a) An Order declaring that the Board is not authorized to proceed with efforts to
    sell the Girl Scout camps until a two-third (2/3) majority of the General
    Assembly votes to approve the contemplated sale of the Girl Scout camps[.]
    (b) An Order declaring that the General Assembly is entitled to select the number
    of Directors, between ten (10) and fifteen (15) who will serve on the Board.
    (c) An Order declaring that the Board does not have the power or authority to
    prevent the General Assembly from electing up to fifteen (15) Directors who
    will serve on the Board.
    7
    (d) An Order declaring that the Board did not have the power, right, or authority
    to serve or act on behalf of [the GSNEO] following the improper October 29,
    2011 election, and all decisions of the Board following the October 29, 2011
    election are void and of no legal effect.
    Additionally, Appellants sought a preliminary and permanent injunction preventing the sale of
    real property owned by the GSNEO. Appellants asserted an injunction was appropriate because:
    (1) the Board is statutorily prohibited from selling more than 50% of the assets within a thirty-six
    month period; (2) the Board was not properly elected and therefore had no authority to sell the
    camps; and (3) the Board was required by the recently passed resolution to obtain the approval of
    two-thirds of the General Assembly before it could sell the camps.
    {¶17} In their memorandum in opposition to the GSNEO’s motion for summary
    judgment, and now on appeal, Appellants argue that there is a genuine issue of material fact as to
    whether the Board made the decision to sell the various camps without receiving input from the
    membership.    Appellants appear to argue that the Board acted in bad faith in developing
    “patently false and misleading” statistics or, at the very least, made an uninformed decision when
    it voted to sell the camps. However, this argument does not raise an issue of material fact when
    considering the relief sought in the complaint.
    {¶18} The court did not have to decide whether the Board acted in good faith when it
    made the legal determinations as to whether: (1) the recent General Assembly resolution was
    binding on the Board; (2) the General Assembly or the Board had the power to set the number of
    Directors-at-Large; and (3) what effect the allegedly improper election had on the subsequent
    Board decisions. Whether the Board was properly informed when it made its decision to sell the
    properties may be an issue of disputed fact, however, it is not material to the resolution of the
    issues raised in the complaint. Because this argument does not raise a genuine issue as to any
    8
    material fact that remains to be litigated, Appellants did not meet their reciprocal Dresher
    burden by raising this argument. See Dresher, 
    75 Ohio St.3d 280
     at 293.
    {¶19} Appellants’ third assignment of error is overruled.
    Assignment of Error Number Four
    THE TRIAL COURT ERRED IN DETERMINING THAT GSNEO WAS NOT
    BOUND BY ITS MEMBER-PASSED RESOLUTION.
    {¶20} In their fourth assignment of error, Appellants argue that the court erred in finding
    that the resolution passed by the General Assembly was not binding on the Board. We disagree.
    {¶21} We incorporate the standard of review set forth above and review the trial court’s
    decision to grant summary judgment de novo. Grafton, 77 Ohio St.3d at 105.
    {¶22} The GSNEO’s Regulations state that the General Assembly shall, “[i]n
    partnership with the Board of Directors, identify the general direction of Girl Scouting within the
    jurisdiction of the Council.” The Regulations further provide that the Chairperson of the Board
    “shall be responsible for seeing that the lines of direction recommended by the General
    Assembly are acted upon by the Board and the actions of the Board of Directors are carried into
    effect.” The Regulations permit the GSNEO to sell its property “according to the decision of the
    Board of Directors” provided that the sale does not violate any law or run afoul of certain tax
    exemptions. The Regulations may be amended or revised by an affirmative vote of two-thirds of
    the General Assembly.
    {¶23} On October 29, 2011, the GSNEO held two meetings.                 First, the General
    Assembly convened a special meeting to address concerns regarding the possible sale of various
    camps owned by the GSNEO. This special meeting was immediately followed by the regular bi-
    annual meeting. At some point during the two meetings, votes on three proposals were taken.
    The first and third proposed resolutions were to amend the Regulations to require the Board to
    9
    obtain approval of two-thirds of the General Assembly before selling any real property. Because
    these proposals involved a change to the Regulations, a two-thirds affirmative vote from the
    General Assembly was required. Neither of the two proposals received the necessary votes to
    amend the Regulations.     The second proposed resolution did not involve a change to the
    Regulations and, therefore, only needed a majority of the voting members present at the meeting
    to pass. This second proposal read:
    a resolution requesting that the Board of Directors immediately cease and desist
    all activities in connection with the transfer of any real property held in the name
    of [the GSNEO] until such time as any such pending, anticipated or planned
    transfers may be approved by a vote of two-thirds of the voting members of the
    General Assembly participating and voting at a meeting held pursuant to Article II
    Section 3 of the [Regulations].
    This resolution passed, receiving a majority of the voting members’ approval. Despite this
    resolution, the Board, in December 2011, without holding a vote of the General Assembly, voted
    to move forward with the sale of the various camps and issued requests for proposals, seeking
    bids from interested buyers.
    {¶24} Appellants argue that the Board did not have the authority to proceed on the sale
    of the real property without the approval of two-thirds of the General Assembly as required by
    the recently passed member resolution.       In support of their argument that the resolution
    “requesting” the Board to obtain approval was binding, Appellants highlight that the Regulations
    provide that the General Assembly shall work with the Board to “identify the general direction of
    Girl Scouting” and require the Chairman of the Board to “see[] that the lines of direction
    recommended * * * are acted upon by the Board.” However, the Regulations also provide that
    real property may be sold “according to the decision of the Board.” Moreover, the General
    Assembly twice rejected a proposed amendment to the Regulations that would require the Board
    to obtain a two-thirds approval of the General Assembly prior to transferring any real property.
    10
    {¶25} Reading the plain language of the resolution in conjunction with the plain
    language of the Regulations, we conclude that the resolution passed did not require the Board to
    obtain the approval of two-thirds of the General Assembly prior to proceeding with the sale of
    the camps. Therefore, Appellants’ fourth assignment of error is overruled.
    Assignment of Error Number Five
    THE TRIAL COURT ERRED IN DETERMINING THAT THE GSNEO’S
    BOARD WAS PROPERLY ELECTED WHEN GSNEO PROHIBITED THE
    MEMBERS FROM CHOOSING THE NUMBER OF DIRECTORS-AT-LARGE
    TO BE ELECTED.
    {¶26} In their fifth assignment of error, Appellants argue that the court erred in finding
    that the Development Committee had the power to set the number of Directors to be elected.
    Appellants further argue that because the election was improper, the Board’s subsequent
    decisions are invalid.
    {¶27} We incorporate the standard of review set forth above and review the trial court’s
    decision to grant summary judgment de novo. Grafton, 77 Ohio St.3d at 105.
    {¶28} Joan Villareal, the current chairperson of the GSNEO Board of Directors, testified
    that, prior to April 2009, the Regulations required fifteen Directors-at-Large. According to
    Villareal, the Regulations were amended in April 2009 to replace that fixed number with a range
    of “at least ten (10) but not more than fifteen (15) * * * Directors-at-Large.” The Regulations,
    however, do not detail how the number of Directors-at-Large is to be set within that range.
    {¶29} R.C. 1702.27(A)(2)(a) provides that “unless the articles or the regulations fix the
    number of directors or provide the manner in which that number may be fixed or changed by the
    voting members, the number may be fixed or changed at a meeting of the voting members called
    for the purpose of electing directors, if a quorum is present, by the affirmative vote of a majority
    of the voting members present in person * * *.”
    11
    {¶30} The trial court found that “[p]rior to October 29, 2011[,] the GSNEO had
    established that there would be twelve Directors[-]at[-]Large.”             The court included a
    parenthetical that “[t]here was testimony at the hearing as to the rationale for this decision.”1
    The trial court further found that while R.C. 1702.27(A)(2)(a) did not provide the “procedure to
    add or subtract from the then existing number of Directors previously set by the non-profit one
    can presume it requires the affirmative vote of a majority of the voting members present at the
    meeting on a Motion to expand the number of Directors.” (Emphasis sic.) The court found that
    no motion to increase the number of directors was made, and therefore, the Board properly
    limited the election to the five open positions (for a total of twelve Directors-at-Large).
    {¶31} R.C. 1702.27(A)(2)(a) does not require a special meeting to set the number of
    directors. The statute permits the change to be made at “a meeting of the voting members called
    for the purpose of electing directors.” One of the reasons for the GSNEO’s annual meeting is to
    elect directors. While there is no evidence in the record that a formal motion to change the
    number of directors was made at the meeting, there is evidence that the Board unequivocally
    informed the General Assembly that the Development Committee, and not the General
    Assembly, had the power under the Regulations to set the number of directors. While it is
    uncertain whether a majority of the General Assembly would have voted to increase the number
    of Directors-at-Large, it is apparent that the Board’s misinterpretation of the Regulations
    prevented the General Assembly from requesting such a vote.
    {¶32} The GSNEO argues that the Regulations must be read to grant the authority to
    select the number of Directors-at-Large to the Development Committee because without this
    1
    Only partial transcripts were included in the record. The partial transcripts do not include any
    testimony about the GSNEO’s decision or rationale to limit the number of Directors-at-Large to
    twelve.
    12
    authority it would be impossible for the Development Committee to fulfill its obligation to
    submit one recommendation for every open position.
    {¶33} While the Regulations do not provide how the number of Directors will be set, it
    does provide two ways that a person may be considered as a candidate. First, a person may be
    recommended by the Board Development Committee, which is tasked with the duty “to recruit,
    review and confirm the qualifications of candidates for elected position in the Council.” The
    Regulations require that the Development Committee recommend one candidate for each
    Director-at-Large position to be filled. Second, a member may be nominated. The Regulations
    require that a nominated person meet the qualifications established by the Development
    Committee, receive three written endorsements, provide written consent to serve, and submit his
    or her name to the Board at least five days in advance to the annual meeting. At the annual
    meeting, according to the Regulations, the Development Committee shall provide “a slate of one
    (1) candidate for each Officer to be elected[,]” and, after the committee presents its
    recommendations, the Chairperson of the Board “shall accept nominations from the floor.”
    {¶34} While we recognize that changing the number of open positions at the annual
    meeting is not ideal, it does not warrant a conclusion that the Development Committee, and not
    the General Assembly, has the authority to set the number of Directors-at-Large.
    {¶35} The Regulations clearly detail the procedure necessary to be considered a
    candidate for a Director-at-Large position. The fact that the number of positions to be filled
    might change at the annual meeting does not alter the candidate qualification requirements.
    While it is possible to imagine a situation in which the Development Committee does not have a
    recommendation for every open position because of a late vote to change the number of positions
    available, this would not preclude a vote by the General Assembly to fill the position with a
    13
    properly nominated candidate. Alternatively, the Development Committee could fulfill its duty
    by coming to the annual meeting prepared to recommend candidates for the maximum possible
    number of Director-at-Large positions.2
    {¶36} If at the close of the annual meeting there remained unfilled positions because
    there were not enough eligible candidates, the open positions would be considered vacant. If
    there is a vacancy in a Director-at-Large position, the Regulations provide that the open position
    shall be filled “upon nomination by the Board Development Committee * * * until the next
    Annual Meeting of the General Assembly by the affirmative vote of a majority of the remaining
    voting members of the Board of Directors.”
    {¶37} Nowhere in the Regulations does it grant the authority of the Development
    Committee to select the number of Directors-at-Large. To read the Regulations this way would
    allow the Development Committee to increase the number of Directors-at-Large immediately
    after the close of the Annual Meeting and then have the majority of the Board elect to fill those
    vacant positions with its nominations. This would effectively by-pass a vote of the General
    Assembly for a year, until the next annual meeting.
    {¶38} Interpreting the language of R.C. 1702.27(A)(2)(a) and the Regulations, we
    conclude that the court erred in finding that the “existing Board did have statutory authority and
    Code authority to prevent the General Assembly from electing up to fifteen Directors.” We,
    therefore, sustain Appellants’ fifth assignment of error on this basis.
    {¶39} We further conclude that the issues of whether the Board had the power, right, or
    authority to act on behalf of the GSNEO subsequent to the election and whether those decisions
    are legally void, were not considered by the trial court, and therefore, are not ripe for our review.
    2
    At the October 29, 2011 annual meeting, for example, the Development Committee could have
    been prepared to recommend eight instead of five candidates.
    14
    Assignment of Error Number Two
    THE TRIAL COURT CONSIDERED IMPROPER EVIDENCE AND DID NOT
    APPLY THE CORRECT STANDARD IN GRANTING GSNEO’S SUMMARY
    JUDGMENT MOTION.
    {¶40} In their second assignment of error, Appellants argue that the court erred in
    weighing the credibility of the witnesses and considering notes that it had taken during the
    injunction hearing.
    {¶41} We review the trial court’s decision to grant summary judgment de novo.
    Grafton, 77 Ohio St.3d at 105. The party moving for summary judgment bears the initial burden
    of informing the trial court of the basis for the motion and pointing to parts of the record that
    show the absence of a genuine issue of material fact. Dresher, 75 Ohio St.3d at 292-293. Once
    this burden is satisfied, the non-moving party bears the burden of offering specific facts to show
    a genuine issue for trial. Id. at 293. In reviewing whether each party has met its burden, the
    court may only consider evidence in “the pleadings, depositions, answers to interrogatories,
    written admissions, affidavits, transcripts of evidence, and written stipulations of fact, if any.”
    Civ.R. 56(C). Further,
    [i]n ruling on a motion for summary judgment the trial court is not permitted to
    weigh the evidence or choose among reasonable inferences. Dupler v. Mansfield
    Journal Co. Inc., 
    64 Ohio St.2d 116
    , 121 (1980). Rather, the court must evaluate
    the evidence, taking all permissible inferences and resolving questions of
    credibility in favor of the non-moving party. 
    Id.
    Stewart v. Urig, 
    176 Ohio App.3d 658
    , 
    2008-Ohio-3215
    , ¶ 10 (9th Dist.), quoting Harry London
    Candies, Inc. v. Bernie J. Kosar Greeting Card Co., 9th Dist. Summit No. 20655, 
    2002 WL 185305
    , *3 (Feb. 6, 2002).
    {¶42} The trial court’s entry granting the GSNEO’s motion for summary judgment is
    divided into four sections: (1) “Motions of October 29, 2011[,]” (2) “The Election of the Board
    15
    of Directors[,]” (3) “The Authority of the Board to Act on Behalf of the GSNEO after October
    29, 2011[,]” and (4) “Contested Data.”
    {¶43} In the “Contested Data” section, the court addressed Appellants’ arguments raised
    in their memorandum in opposition to summary judgment and stated that “[b]ecause of the oral
    hearing [the court] was able to judge the credibility of the Defense witnesses and to then view
    the documentation under this light.”         However, as discussed above in Appellants’ third
    assignment of error, the arguments raised in their memorandum in opposition did not raise an
    issue of material fact with respect to the resolution of the claims asserted in the complaint.
    While we agree that it was an error for the court to judge the credibility of the witnesses, we
    conclude that the error here was harmless.
    {¶44} Appellants further argue that the court erred when it considered evidence not
    provided for in Civ.R. 56(C). At the beginning of the judgment entry, the court explained that it
    considered evidence submitted at the injunction hearing as well as exhibits attached to the
    pleadings. However, at the end of the judgment entry, the court indicated that it had “reviewed
    the notes of the hearing on the Injunction; the exhibits attached to all pleadings; the various
    affidavits and the case law cited by the parties in this decision.”
    {¶45} We agree that the court erred in considering any notes from the injunction hearing
    because these notes are not permissible evidence under Civ.R. 56(C). However, because of our
    decision to reverse and remand the trial court’s entry on the issues related to the election, we
    need only review the prejudicial effect of this error on the court’s determination that the
    resolution was not binding on the Board. We reviewed this matter de novo in Appellants’ fourth
    assignment of error and concluded that the resolution was not binding on the Board. Therefore,
    we cannot now conclude that Appellants suffered prejudice. See Ciszewski v. Kolaczewski, 9th
    16
    Dist. Summit No. 26508, 
    2013-Ohio-1765
    , ¶ 35 (error in considering unauthenticated documents
    harmless where summary judgment appropriate without considering the improper evidence).
    {¶46} Appellants’ second assignment of error, as it relates to the weighing of the
    credibility of the witnesses and to the improper evidence considered by the court in finding that
    the resolution was not binding, is overruled. Appellants’ second assignment of error, as it relates
    to the court’s consideration of improper evidence with respect to the rest of its decision, is not
    ripe for our review.
    III
    {¶47} Appellants’ first, third, and fourth assignments of error are overruled. Appellants’
    second assignment of error related to the court’s finding that the resolution was not binding is
    overruled. The remainder of Appellants’ second assignment of error is not ripe for review.
    Appellants’ fifth assignment of error is sustained as to the Board’s authority to prevent the
    General Assembly from electing up to fifteen directors; the remainder of Appellants’ fifth
    assignment of error is not ripe for review. The judgment of the Summit County Court of
    Common Pleas is affirmed in part, reversed in part, and the case is remanded for further
    proceedings consistent with the foregoing opinion.
    Judgment affirmed in part,
    reversed in part,
    and cause remanded.
    There were reasonable grounds for this appeal.
    17
    We order that a special mandate issue out of this Court, directing the Court of Common
    Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
    of this journal entry shall constitute the mandate, pursuant to App.R. 27.
    Immediately upon the filing hereof, this document shall constitute the journal entry of
    judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
    period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
    instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
    mailing in the docket, pursuant to App.R. 30.
    Costs taxed equally to both parties.
    BETH WHITMORE
    FOR THE COURT
    HENSAL, J.
    CONCURS.
    BELFANCE, P. J.
    CONCURS IN JUDGMENT ONLY.
    APPEARANCES:
    HAMILTON DESAUSSURE, JR. and KRISTEN S. MOORE, Attorneys at Law, for Appellants.
    MICHAEL J. MATASICH and CATHY C. GODSHALL, Attorneys at Law, for Appellee.
    DOUGLAS N. GODSHALL, Attorney at Law, for Appellee.
    

Document Info

Docket Number: 27127

Judges: Whitmore

Filed Date: 3/19/2014

Precedential Status: Precedential

Modified Date: 10/30/2014