Tibbs v. Kendrick

• Decision Date: 07 February 1994
• Docket Number: No. 64452,64452
• Citation: 93 Ohio App.3d 35,637 N.E.2d 397
• Parties: TIBBS et al., Appellants, v. KENDRICK et al., Appellees.
• Court: Ohio Court of Appeals

Page 35

93 Ohio App.3d 35

637 N.E.2d 397

TIBBS et al., Appellants, v. KENDRICK et al., Appellees.

No. 64452.

Court of Appeals of Ohio, Eighth District, Cuyahoga County.

Decided Feb. 7, 1994.

F. Thomas Vickers and Debra R. Shpigler, Cleveland, for appellants.

Earle C. Horton, Cleveland, for appellees.

NUGENT, Judge.

This is an appeal from a judgment of the Cuyahoga County Court of Common Pleas which granted a motion to dismiss filed by the defendants-appellees, Sylvester Kendrick et al.

Plaintiffs-appellants, Elbert Tibbs et al., initiated the present action on March 5, 1992 through the filing of a verified complaint, alleging breach of contract and breach of fiduciary duties. Appellants are members of the Lee-Seville Baptist Church (hereinafter the "Church"). Appellees, other than defendant Otis F. Newton, are members of the Board of Trustees of the Church. Appellee Newton is employed by the Church as its pastor pursuant to a contract dated January 25, 1987. Count one of the complaint alleges that appellee Newton breached the contract by becoming employed by an insurance company without first seeking or obtaining the consent of the Church. Appellants further allege that appellees-trustees have breached their fiduciary duties to the members of the Church by failing and refusing to take action against Newton despite their knowledge of Newton's outside employment. Count two of the complaint alleges that the plaintiffs-appellants fairly and accurately represent the interests of the members of the Church and seek to enforce the right of the Church to terminate the contract between the Church and Newton. Plaintiffs-appellants prayed for $50,000 in damages and an order from the court requiring the trustees to take action to formally terminate the contract. Attached to the complaint is a copy of the contract between the Church and appellee Newton and copies of a "demand to take action" notice delivered to the trustees.

In response to the complaint, defendants-appellees filed a motion to dismiss pursuant to Civ.R. 12(B)(1) and 12(B)(6) on May 5, 1992. Appellees argued that appellants' complaint should be dismissed, as the trial court lacked subject matter jurisdiction over the ecclesiastical matters in dispute and that the complaint failed to state a claim upon which relief could be granted.

Appellee Newton's contract with the Church provides as follows:

"(2) SOLE EMPLOYMENT OF EMPLOYEE. Employee shall devote his entire time and the best of his ability to the business of the church, and shall not become associated or indirectly interested in another church or business without first obtaining consent of the Lee-Seville Baptist Church."

On March 1, 1991, appellee Newton accepted outside employment, allegedly without seeking or obtaining prior approval of the Church. Appellees argue however, that on February 28, 1992, a special meeting for March 11, 1992 was called for the reason that the Church's annual meeting was not called on time. An affidavit of Sylvester Kendrick, Chairman of the Board of Trustees of the Church, is attached to appellees' motion to dismiss. Kendrick avers that this "Special Called Annual Meeting was called for the purpose of taking care of church business and a quorum was present for the official transaction of such." Notice of such meeting is also attached to appellees' motion.

On March 11, 1992, the "special called annual meeting" was held. Appellees argue that at this meeting, the issue of Rev. Newton's receiving prior approval for his outside employment was raised and thereafter ratified by the congregation through a majority vote. Shirley Stout, Church Clerk, averred that she was present for such meeting and recorded the minutes of said meeting. Attached to Stout's affidavit are the minutes to said meeting, which reveal that the membership of the Lee-Seville Baptist Church resolved that "(1) the association with a business by Rev. Otis F. Newton * * * is consented to, approved and confirmed * * *, (2) the continuing association of Rev. Otis F. Newton with such business is consented to and approved * * * [and] (3) the actions of the * * * Trustees of Lee-Seville Baptist Church with respect to any alleged breach of his employment contract by Rev. Newton are ratified, approved and confirmed, and none of them have breached any fiduciary duty to Lee-Seville Baptist Church."

Appellants, responding by way of a brief in opposition to appellees' motion to dismiss, argued that the common pleas court has jurisdiction over contract/tort matters of a congregational church such as the Lee-Seville Baptist Church and that the so-called ratification of appellee Newton's breach of contract was an ineffective act, since notice of the meeting was not properly given. Appellants contend that the notice attached to appellees' motion did not set forth any particular purpose for the March 11th meeting as required by R.C. 1702.18. Additionally, appellants contend that the purported ratification was ineffective, since no quorum was present. Appellants attached to their brief in opposition "the most recent membership list the Church has made available to the plaintiffs which demonstrates that there are 515 members of the church." Additionally, appellants point to the minutes of the special called annual meeting, which show that fifty-three members of the Church were present. Appellants argue that the members present at such meeting do not constitute a quorum as provided by the Church's constitution. Section 8, Article VI of the Church's constitution provides:

"A. 10% of the members 18 years and over shall constitute a quorum for the transaction of business of the church except in matters pertaining to the calling and termination of the Pastor, selling or encumbering of real estate belonging to the church. 51% of the church members present shall constitute a majority.

"B. In matters pertaining to the Pastor, selling or encumbering of real estate belonging to the church, 25% of the members 18 years and over will constitute a quorum. A two-thirds vote of the members present will be considered a majority."

Based on the foregoing, the trial court granted appellees' motion to dismiss. Appellants timely appeal, raising the following sole assignment of error for our review:

"The trial court erred in granting defendants-appellees' motion to dismiss."

Appellants contend the trial court erred in granting appellees' motion to dismiss because the trial court has jurisdiction over non-ecclesiastical/contractual issues. Appellants argue that R.C. 2305.01 confers subject matter jurisdiction over the contractual and tort issues raised by their complaint. Finally, appellants contend that the trustees did not properly ratify appellee Newton's breach of contract, nor did the Church ratify appellees-trustees' breach of fiduciary duties.

Appellees' motion to dismiss was brought pursuant to Civ.R. 12(B)(1), contending the trial court lacked subject matter jurisdiction to hear appellants' claims, and pursuant to Civ.R. 12(B)(6), contending that appellants failed to state a claim upon which relief can be granted.

Civ.R. 12(B) provides, in pertinent part:

"(B) How Presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, (7) failure to join a party under Rule 19 or Rule 19.1. * * * When a motion to dismiss for failure to state a claim upon which relief can be granted presents matters outside the pleading and such matters are not excluded by the court, the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. Provided however, that the court shall consider only such matters outside the pleadings as are specifically enumerated in Rule 56. All parties shall be given reasonable opportunity to present all materials made pertinent to such a motion by Rule 56."

In determining whether a plaintiff has alleged a cause of action sufficient to withstand a Civ.R. 12(B)(1) motion to dismiss for lack of subject matter jurisdiction, a trial court is not confined to the allegations of the complaint, and it may consider evidentiary material pertinent to such inquiry without converting the motion to a motion for summary judgment. Southgate Dev. Corp. v Columbia Gas Transm. Corp. (1976), 48 Ohio St.2d 211, 2 O.O.3d 393, 358 N.E.2d 526; Jenkins v. Eberhart (1991), 71 Ohio App.3d 351, 354, 594 N.E.2d 29, 30-31; and McHenry v. Indus. Comm. (1990), 68 Ohio App.3d 56, 62, 587 N.E.2d 414, 418-419. In Jenkins, the Scioto County Court of Appeals adopted the federal standard of review employed in ruling on a Fed.R.Civ.R. 12(b)(1) motion. The court of appeals held that a trial court "may dismiss a complaint for lack of jurisdiction over subject matter on the basis of '(1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.' " Jenkins, supra, at 355, 594 N.E.2d at 31, citing Williamson v. Tucker (C.A.5, 1981), 645 F.2d 404, 413.

While a court may rely on factual materials outside the complaint in ruling on a Civ.R. 12(B)(1) motion, in resolving a Civ.R. 12(B)(6) motion, a court is confined to the averments set forth in the complaint and cannot consider outside evidentiary materials unless the motion is converted into one for summary judgment under Civ.R. 56. State ex rel. Baran v. Fuerst (1990), 55 Ohio St.3d 94, 563 N.E.2d 713. Moreover, the trial court must first notify ...