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Center For Family and Child Development v. Daley

Court of Appeals of Ohio, Fifth District

June 20, 2013

THE CENTER FOR FAMILY AND CHILD DEVELOPMENT, ET AL Plaintiffs-Appellants
v.
MELISSA DALEY, ET AL Defendants-Appellees

Civil appeal from the Muskingum County Court of Common Pleas, Case No. CC2011-0590

For - Appellants PETER CULTICE.

For - Appellees SCOTT EICKELBERGER RYAN LINN.

For - Donald Davis DERRICK MOOREHEAD.

For - Bradley Bumpus D. WESLEY NEWHOUSE.

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

GWIN, P.J.

{¶1} Appellants appeal the October 18, 2012 judgment entry of the Muskingum County Court of Common Pleas granting summary judgment to appellees and dismissing the action without prejudice.

Facts & Procedural History

{¶2} Appellants The Center for Child and Family Development ("CFCD") and Phillip Arthur ("Arthur) filed their complaint on November 18, 2011, alleging various civil torts including fraud and breach of duty of loyalty against appellees, current and previous officers and directors of CFCD or others to whom payments had been made by CFCD. Simultaneously with their complaint, appellants filed a motion to appoint receiver. After appellees filed their answers, they filed a motion to dismiss on December 19, 2011, alleging appellant Arthur lacked standing to maintain the action because he did not have the authority to act on behalf of CFCD and was not the president of the board of trustees of CFCD.

{¶3} The trial court decided that before concluding whether to appoint a receiver, the court had to determine whether appellants had standing to file and maintain the cause of action. On December 29, 2011, appellees and appellants stipulated to the use of a special master. Counsel for appellees and appellants signed and filed an agreed entry appointing a special master. The trial court appointed the special master to research and investigate the issue of whether or not appellants had standing to file and maintain the cause of action; determine who are board members; and determine who constituted the board at the time the complaint was filed. The agreed order required the special master to submit a written report with his recommendations. Though the special master had "serious questions" about corporate expenditures and conflicts of interest of CFCD, he limited his inquiry to the questions asked by the trial court and concluded that "Arthur does not have standing to maintain this action, that the board members at the time this action was initiated (November 18, 2011) were Richard Hull, Patrick Hurley, and Valerie McHenry, and that the current board members of the Corporation are Richard Hull, Patrick Hurley, Valerie McHenry, and Rick Cline." The special master provided his original report to the trial court, with copies to be distributed to all parties. The trial court filed the report of the special master under seal.

{¶4} On May 24, 2012, appellees filed a joint motion for summary judgment for failure of the real party in interest to commence the action. Appellees incorporated the report of the special master into their motion, attached as an exhibit a May 8, 2012 resolution of CFCD to dismiss the current action, and attached as an exhibit an affidavit of Richard Hull, stating he is a member of the board of trustees of CFCD and stating the copy of the action of the board members to dismiss the above-captioned lawsuit is a true and accurate copy of the original document containing his signature and the signature of the other board members.

{¶5} Appellants filed a motion to strike the motion for summary judgment or motion to deny summary judgment on May 29, 2012, stating the trial court requested a dismissal entry without prejudice based on the report of the special master and arguing the court should deny the motion for summary judgment because the motion does not comply with Rule 56 and because no depositions, answers to interrogatories, written admissions, affidavits, transcripts or written stipulations of fact exist. At the conclusion of their motion, appellees requested the trial court schedule a hearing on the report of the special master. The trial court denied appellants' motion to set a hearing to challenge the recommendations of the special master on July 9, 2012.

{¶6} A scheduling order issued by the trial court on July 9, 2012 stated that "all parties who desire to oppose said motion for summary judgment shall file all documents, exhibits, affidavits, etc. as contemplated under Civil Rule 56 together with a legal brief in opposition to the motion on or before August 9, 2012." Pursuant to the scheduling order, reply briefs were due on or before August 24, 2012. On August 9, 2012, appellants filed a memorandum in opposition to summary judgment, again stating appellees ...


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