State ex rel. Salim v. Ayed , 2013 Ohio 4880 ( 2013 )

[Cite as State ex rel. Salim v. Ayed, 2013-Ohio-4880.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Hamid Salim et al., :
Relators, :
v. : No. 12AP-356
Mounir Ayed et al., : (REGULAR CALENDAR)
Respondents. :
D E C I S I O N
Rendered on November 5, 2013
Rosenberg & Ball Co., LPA, and David T. Ball; Blaugrund,
Herbert, Kessler, Miller, Myers Postalakis, Inc., and
Fazeel S. Khan, for relators.
Reash Law Offices, and Maryellen Corna Reash;
Khasawneh & Associates, LLC, and Rateb Moh'd
Khasawneh, for respondents.
IN QUO WARRANTO
KLATT, P.J.
{¶ 1} Relators, Hamid Salim, Khaled Khamees, Nihad Al Khalidi, Fouad ElFaour,
Dina Y. Ali, and Mihammed Allouche, commenced this original action seeking a writ of
quo warranto to remove respondents, Mounir Ayed, Ghassan Bin Hamman, Nasser
Kashou, Quassai Marashdeh, and Noorgul Dada, as directors of the Masjid Omar Ibn
Khattab Mosque ("Omar Mosque"), an Ohio nonprofit corporation that operates a place of
worship for believers of Islam.
{¶ 2} Pursuant to App.R. 34, Civ.R. 53(D), and Loc.R. 13(M) of the Tenth District
Court of Appeals, we referred this matter to a magistrate who issued a decision, including
No. 12AP-356 2
findings of fact and conclusions of law, which is appended hereto. The magistrate
determined that relators cannot institute a quo warranto action in their individual
capacities. For this reason, the magistrate recommended that we dismiss relators'
complaint.
{¶ 3} Relators have filed 14 objections to the magistrate's decision. The first 12
objections challenge certain findings of fact that the magistrate made. The final two
objections challenge the magistrate's legal conclusion.
{¶ 4} First, relators argue that the magistrate erred in not making any findings of
fact regarding (1) relators' compliance with statutory requirements for calling and
conducting a special director election, and (2) violations committed by respondents in
their attempts to impede relators' lawful efforts. We disagree. Findings of fact regarding
statutory compliance and/or violation are irrelevant to the magistrate's legal conclusion.
The magistrate did not need to issue or rely on such findings of fact to reach the
conclusion that relators lacked the capacity to pursue a quo warranto action. Accordingly,
we overrule relators' first objection.
{¶ 5} Second, relators argue that the magistrate erred by stating in paragraph four
of the findings of fact that "the Initial Board was only to govern until the end 2007." We
agree. Based on the undisputed evidence before the magistrate, the Initial Board was to
govern until the end of 2009. Accordingly, we sustain relators' second objection.
{¶ 6} Third, relators argue that paragraph six of the findings of fact is erroneous.
Relators, however, fail to identify any error in that finding of fact. Rather, relators fault
the magistrate for not explaining why mosque members did not "organize a push for
change until Fall 2011." As that explanation is not a necessary factual predicate for the
magistrate's legal conclusion, we see no error in the magistrate's exclusion of the
explanation. Accordingly, we overrule relators' third objection.
{¶ 7} Fourth, relators argue that paragraph seven of the findings of fact is
erroneous because it implies that respondents proactively called the September 9, 2011
meeting when, in fact, concerned mosque members first asked for the meeting.
Paragraph seven does not state who called the September 9, 2011 meeting. That
paragraph, therefore, does not imply what relators say it does.
No. 12AP-356 3
{¶ 8} By their fourth objection, relators also argue that the magistrate erred in
finding that the meeting was held "to address the concerns raised by certain members and
to get input on what steps should be taken next." The only evidence on this point is that
respondents called the meeting to address the concerns of mosque members. Therefore,
the magistrate erred by attributing a second purpose—the gathering of input—to the
meeting. Accordingly, we overrule in part and sustain in part the fourth objection.
{¶ 9} Fifth, relators argue that paragraph eight of the findings of fact erroneously
refers to the event that occurred on October 8, 2011 as a "community vote" when, in fact,
it was a "survey." Although framed as argument about terminology, the fifth objection
actually seeks a ruling on the legal connotations of the October 8, 2011 event. We decline
to issue such a ruling. Instead, we look to the record evidence to determine whether it
supports the factual finding at issue. According to the evidence, mosque members voted
on October 8, 2011 on whether (1) to retain the current five-member board, with the
addition of four more members, or (2) to hold an election for nine new board members.
We find no error in the magistrate's characterization of this event as a "community vote."
Accordingly, we overrule relators' fifth objection.
{¶ 10} Sixth, relators argue that the magistrate erred in paragraph 10 of the
findings of fact by stating that relators decided to hold the special director election
meeting. We agree, and thus, we sustain relators' sixth objection. Paragraph 10 should
read: "At the October 1, 2011 meeting, a majority of the attendees decided to call a special
meeting on October 22, 2011 to address the issues of elections, membership, and bylaws."
{¶ 11} Seventh, relators argue that paragraph 11 of the findings of fact
mischaracterizes the results of the October 8, 2011 community vote. We agree.
Paragraph 11 should read: "According to respondents, on October 8, 2011, 157 people
voted, and 113 people chose Option I: the Initial Board would remain in place and four
additional members would join the board of directors."
{¶ 12} By their seventh objection, relators also argue that the magistrate erred in
not addressing the improper influencing of votes, chaos, deception, violence, and fraud
that occurred during the October 8, 2011 community vote. Because such findings of fact
are irrelevant to the magistrate's legal conclusion, we find no error in the omission of
No. 12AP-356 4
those findings of fact. Accordingly, we sustain in part and overrule in part relators'
seventh objection.
{¶ 13} Eighth, relators argue that paragraph 14 of the findings of fact is erroneous
because it implies that, before their election, relators intended to assume control of Omar
Mosque's bank accounts. Nothing in paragraph 14 addresses relators' intent; instead,
paragraph 14 merely recounts what relators did after their election. The record evidence
shows that, after their election, relators drafted a resolution that would allow them to
assume control of Omar Mosque's bank accounts. Therefore, the magistrate did not err in
so finding. Accordingly, we overrule relators' eighth objection.
{¶ 14} Ninth, relators argue that paragraph 16 of the findings of fact erroneously
states that relators filed suit in the Franklin County Court of Common Pleas. We agree.
Omar Mosque, at the instigation of the Initial Board, originated the action in the common
pleas court. Accordingly, we sustain relators' ninth objection.
{¶ 15} Tenth, relators argue that paragraph 18 of the findings of fact wrongly
portrays why respondents decided to conduct an election for a new board of directors.
Paragraph 18 states that the Initial Board proceeded with the election "[b]ecause no
resolution of the [parties'] dispute was possible." Relators assert that resolution was
possible, but respondents unreasonably thwarted any potential resolution. As the parties
vigorously contest why efforts to settle their dispute failed, we sustain relators' tenth
objection. We modify paragraph 18 so that it reads: "Soon thereafter, the Initial Board
decided to hold an election for new board members."
{¶ 16} Eleventh, relators argue that paragraph 19 of the findings of fact
erroneously states that an independent third-party election committee oversaw the
April 12, 2012 election and the election results. Uncontradicted evidence supports this
finding, so we find no error in it. Accordingly, we overrule relators' 11th objection.
{¶ 17} Twelfth, relators argue that paragraph 22 of the findings of fact erroneously
states that 146 "valid" ballots were cast in the April 21, 2012 election. Relators contend
that no valid votes could be cast because the April 21, 2012 election was illegal. Once
again, relators use a challenge to a finding of fact as a pretext for asserting a legal
argument. We reject this gambit. Accordingly, we overrule relators' 12th objection.
No. 12AP-356 5
{¶ 18} Thirteenth, relators argue that the magistrate erred in concluding that, as
private citizens, they lack the ability to file an action requesting a writ of quo warranto.
We disagree.
{¶ 19} Relators correctly point out that the relevant statutes do not explicitly state
that a private citizen can only institute a quo warranto action when he or she is claiming
entitlement to a public office. However, the Supreme Court of Ohio has interpreted the
statutory scheme to mean exactly that. According to the Supreme Court, " '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. Hawthorne v. Russell, 107 Ohio St.3d 269, 2005-Ohio-
6431, ¶ 6, quoting State ex rel. E. Cleveland Fire Fighters' Assn., Local 500, Internatl.
Assn. of Fire Fighters, 96 Ohio St.3d 68, 2002-Ohio-3527, ¶ 10; accord State ex rel. Cain
v. Kay, 38 Ohio St.2d 15, 17 (1974) ("The right to bring an action in quo warranto remains,
as at common law, a right of the state, and, except where title to a public office is involved,
the use of quo warranto remains in the state or its officers."). If we adopted relators'
argument, we would be contravening Supreme Court precedent. We cannot do that.
{¶ 20} Next, relators argue that the office of director of a nonprofit corporation is a
public office for quo warranto purposes. We disagree.
{¶ 21} "[T]he most general distinction of a public office is, that it embraces the
performance by the incumbent of a public function delegated to him as a part of the
sovereignty of the state. * * * 'An office, such as to properly come within the legitimate
scope of an information in the nature of quo warranto, may be defined as a public
position, to which a portion of the sovereignty of the county, either legislative, executive,
or judicial, attaches for the time being, and which is exercised for the benefit of the
public.' " Id. at 18, quoting State ex rel. Atty. Gen. v. Jennings, 57 Ohio St. 415, 424
(1898). A director of a nonprofit corporation does not perform any governmental
function. Moreover, a corporate director serves the interests of the corporation, not the
public. Thus, we conclude that the office of director of a nonprofit corporation is not a
public office.
No. 12AP-356 6
{¶ 22} In sum, we find that the magistrate did not err in concluding that relators
lack the ability to pursue a quo warranto action in their individual capacities.
Accordingly, we overrule relators' 13th objection.
{¶ 23} Fourteenth, relators take issue with the magistrate's conclusion that they
are not deprived of a remedy because either the attorney general or the Franklin County
prosecuting attorney can file a quo warranto action on their behalf. Relators aver that, so
far, neither the attorney general nor the prosecuting attorney has agreed to proceed on
their behalf. While we recognize that the statutory requirements of R.C. Chapter 2733
place relators in a difficult position, relators' plight is not a reason to allow them to
proceed with this action. Masjid Omar Ibn El Khattab Mosque v. Salim, 10th Dist. No.
12AP-807, 2013-Ohio-2746, ¶ 24. Accordingly, we overrule relators' 14th objection.
{¶ 24} Following an independent review of this matter, we overrule relators' first,
third, fifth, eighth, eleventh, twelfth, thirteenth, and fourteenth objections; we sustain
relators' second, sixth, ninth, and tenth objections; and we overrule in part and sustain in
part relators' fourth and seventh objections. Although we adopt the magistrate's
conclusions of law, we modify the findings of fact to the extent set forth above.
Objections overruled in part, sustained in part;
cause dismissed.
BROWN and CONNOR, JJ., concur.
No. 12AP-356 7
APPENDIX
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State ex rel. Hamid Salim et al., :
Relators, :
v. : No. 12AP-356
Mounir Ayed et al., : (REGULAR CALENDAR)
Respondents. :
MAGISTRATE'S DECISION
Rendered on May 14, 2013
Rosenberg & Ball Co., LPA, and David T. Ball; Blaugrund,
Herbert, Kessler, Miller, Myers Postalakis, Inc., and
Fazeel S. Khan, for relators.
Reash Law Offices, and Maryellen Corna Reash;
Khasawneh & Associates, LLC, and Rateb Moh'd
Khasawneh, for respondents.
IN QUO WARRANTO
ON MOTIONS FOR SUMMARY JUDGMENT
{¶ 25} Relators Hamid Salim, Khaled Khamees, Nihad Al Khalidi, Fouad ElFaour,
Dina Y. Ali, and Mohammed Allouche, have filed this original action requesting that this
court issue a writ of quo warranto ousting respondents Mounir Ayed, Ghassan Bin
Hammam, Nasser Kashou, Quassai Marashdeh, and Noorgul Dada from the Board of
Directors of Omar Ibn El Khattab Mosque, Inc. ("Omar Mosque") and declaring that
relators are the lawful directors of the Omar Mosque.
No. 12AP-356 8
Findings of Fact:
{¶ 26} 1. Omar Mosque was formed as a non-profit entity in 2007.
{¶ 27} 2. An Initial Board of Directors ("Initial Board") was identified and
included respondents Mounir Ayed, Ghassan Bin Hammam, Nasser Kashou, Quassai
Marashdeh, and Noorgul Dada.
{¶ 28} 3. The Initial Board was to govern Omar Mosque until the end of 2009.
{¶ 29} 4. Despite the fact that the Initial Board was only to govern until the end of
2007, the Initial Board continued to govern beyond 2009.
{¶ 30} 5. While the Initial Board continued to govern, some members of Omar
Mosque began questioning their authority and asking when elections would occur.
{¶ 31} 6. Despite the fact that some members of Omar Mosque questioned the
authority of the Initial Board to continue governing after 2009, no one took any action to
organize a push for change until Fall 2011.
{¶ 32} 7. On September 9, 2011, members of Omar Mosque gathered for a meeting
to address the concerns raised by certain members and to get input on what steps should
be taken next.
{¶ 33} 8. Ultimately, it was determined that a community vote would take place on
October 8, 2011.
{¶ 34} 9. In the meantime, relators assert that they provided notice of a
community meeting to be held on October 1, 2011.
{¶ 35} 10. At their October 1, 2011 meeting, relators continued with their plan to
hold a special meeting on October 22, 2011, to address the issues of "elections,
membership and bylaws." (Affidavit of Nasir Hassan, ¶ 26.)
{¶ 36} 11. According to respondents, on October 8, 2011, 157 people attended and
113 voted in favor of Option II: the Initial Board would remain in place until membership
was established and a formal election for a new board could be conducted.
{¶ 37} 12. According to relators, 79 people attended the October 22, 2011 meeting
at which time nominations for a new board of directors were opened, 14 people were
nominated and those in attendance voted.
No. 12AP-356 9
{¶ 38} 13. According to relators, the following people were elected to the board
("Second Board"): Hamid Salim, Dr. Khaled Khamees, Mohammed Allouche, Dina Ali,
Hagar Diab, Nihad Al Khalidi, Fouad ElFaour.
{¶ 39} 14. Thereafter, the Second Board held a meeting, elected officers, and
drafted a resolution that would allow them to assume control of Omar Mosque's bank
account.
{¶ 40} 15. Relators presented the resolution to the bank and the bank transferred
control of the account to relators.
{¶ 41} 16. As a result, on November 23, 2011, the following individuals filed an
action in the Franklin County Court of Common Pleas on behalf of Omar Mosque: Hamid
Salim, Dr. Khaled Khamees, Nihad Al Khalidi, Fouad ElFaour, Dina Y. Ali, Hagar Diab,
and Mohammed Allouche.
{¶ 42} 17. Judge Bessey attempted to assist the members of Omar Mosque to reach
a mutually agreed upon method by which the members could select a new board;
however, all attempts at reconciliation have failed.
{¶ 43} 18. Because no resolution of the dispute was possible, the Initial Board
moved forward with plans to conduct an election to elect a new board as had been decided
the October 8, 2011 vote.
{¶ 44} 19. The Initial Board announced an election procedure with an independent
third-party election committee to oversee the election and the election results.
{¶ 45} 20. Nominations for the board were solicited and, on April 20, 2012, the
candidates each gave a short presentation about their vision for the community.
{¶ 46} 21. The final membership list for voting included 314 registered members.
{¶ 47} 22. The election was conducted on April 21, 2012. One hundred and forty
six valid ballots were cast and the following individuals were elected to the Board of
Directors of Omar Mosque ("Third Board"): Basil Gohar (136 votes); Marwan
Mohammed (127 votes); Ehsan Diab (125 votes); Mohamed Taffa (111 votes); Azad
Zangana (110 votes); Brahim Mousaid (97 votes); and Bakht Quraish (76 votes).
{¶ 48} 23. On April 20, 2012, relators filed this quo warranto action.
No. 12AP-356 10
{¶ 49} 24. In a decision and entry filed September 14, 2012, Judge Bessey sua
sponte dismissed the common pleas court case finding that an action in quo warranto was
the proper remedy.
{¶ 50} 25. On October 18, 2012, respondents filed a motion to dismiss and relators
filed a memorandum contra.
{¶ 51} 26. On November 15, 2012, the magistrate denied respondents' motion to
dismiss.
{¶ 52} 27. During a conference with the magistrate wherein the parties were again
encouraged to settle their dispute amongst themselves, it was apparent that the parties
could not resolve the matter without court intervention.
{¶ 53} 28. It was determined that the parties would each file motions for summary
judgment and present evidence in the form of affidavits and attachments.
{¶ 54} 29. The matter is currently before the magistrate on the parties' motions for
summary judgment and memoranda contra.
Conclusions of Law:
{¶ 55} After conducting further research and careful consideration, the magistrate
finds that respondents' motion to dismiss should have been granted on the authority of
State ex rel. Hawthorn v. Russell, 107 Ohio St.3d 269, 2005-Ohio-6431.
{¶ 56} In Hawthorn, appellants Reverend Bruce E. Hawthorn and Reverend
Ronald S. Beers 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 the Barberton Rescue Mission, Inc., a church and non-profit corporation.
Appellants claimed that they were the lawful directors of the corporation.
{¶ 57} Appellees moved to dismiss the complaint under R.C. 12(B)(6) for failure to
state a claim upon which relief could be granted. Appellees argued that appellants lacked
standing to bring the quo warranto action.
{¶ 58} The court of appeals agreed with appellees, granted the motion and
dismissed the complaint.
{¶ 59} Appellants appealed to the Supreme Court of Ohio; however, the Supreme
Court affirmed the judgment of the court of appeals stating:
No. 12AP-356 11
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.
Id. at 6.
{¶ 60} Relators may bring a quo warranto action to remove respondents from the
Board of Directors; however, because Omar Mosque is not a public office, relators may
not bring that action as private citizens. Because the Board of Directors of Omar Mosque
is not a public office and because relators are neither the attorney general nor a
prosecuting attorney, relators do not have standing to institute the quo warranto action in
their individual capacity.
{¶ 61} Relators are not deprived of a remedy. Relators need to bring their dispute
to the attention of either the attorney general or the prosecuting attorney who can then
file the quo warranto action.
{¶ 62} Based on the foregoing, it is this magistrate's decision that this court should
dismiss relators' complaint.
/S/ MAGISTRATE
STEPHANIE BISCA BROOKS
NOTICE TO THE PARTIES
Civ.R. 53(D)(3)(a)(iii) provides that a party shall not assign
as error on appeal the court's adoption of any factual finding
or legal conclusion, whether or not specifically designated as
a finding of fact or conclusion of law under Civ.R.
53(D)(3)(a)(ii), unless the party timely and specifically
objects to that factual finding or legal conclusion as required
by Civ.R. 53(D)(3)(b).