Difference Between Quo Warranto Relief and Common Pleas Injunctive Relief
February 6, 2020 | Daniel J. Donnellon
It is unfortunately not an unfamiliar Complaint (and likely counterclaim) facing an Ohio Common Pleas Judge sitting in Equity. Plaintiffs are a group of either gruntled or disgruntled elected officers or board members of an Ohio formed corporation (typically non-profit). They sue another group of elected officers or board members claiming there were election irregularities under the by-laws (or statute), and they seek injunctive relief from the Court to determine who are the rightful operators and preliminarily enjoin the alleged wrongful operators from dissipating corporate assets, executing contracts, and the like, until a final determination. The lawyers, often unfamiliar with the machinations of injunction relief, allege jurisdiction under Ohio Rev. Code § 5312.13 and Civ. R. 65, and it appears to be something a common pleas court is suitable to resolve. Simply put, it is not. Regardless of how such claims are dressed up in the pleadings and cleverly drafted relief sought, this scenario is an action in quo warranto, over which a common pleas court completely lacks original jurisdiction.
What is quo warranto? In English, please. The action is an extraordinary writ requiring a person to show “By What Warrant” such person has authority for exercising rights on behalf of a legal entity. Any action that seeks the ouster of an officer, director, or group of such from a position or positions of corporate authority is essentially calling into question the warrant entitling such persons to act. Even if cleverly pleaded not to seek an ouster, which is difficult, any action alleging that A has proper warrant to act on behalf of X corporation, is quintessential quo warranto. In Ohio, jurisdiction over such actions lies only with the Supreme Court or a District Court of Appeals. More importantly, the proper party plaintiff is limited to the attorney general or a prosecutor.
Quo warranto actions are governed by Ohio Revised Code Chapter 2733. Pursuant to R.C. 2733.01(A), if any person “usurps, intrudes into, or unlawfully holds or exercises * * * an office in a corporation created by the authority of this state” then a quo warranto action is the only method to resolve the dispute. A quo warranto action is “the proper and exclusive remedy for determining the legal right of an officer of an incorporated nonprofit association to hold office.” State ex rel. Gmoser v. Village at Beckett Ridge Condominium Owners’ Assn., Inc., 2016-Ohio8 451, 82 N.E.3d 464 (12th Dist.), quoting Carlson v. Rabkin, 152 Ohio App.3d 672, 2003-Ohio-2071, 789 N.E.2d 1122 (1st Dist.); Greater Temple Christian Church v. Higgins, 9th Dist. Summit No. 23022, 2006-Ohio-3284; see also State ex rel. Salim v. Ayed, 141 Ohio St.3d 129, 2014-Ohio-4736, 22 N.E.3d 1054, (“In a quo warranto action against a person for usurping a corporate office, the court will render judgment on the rights of the claimants to hold that office, and oust and exclude a usurper from the office.” El Khattab Mosque v. Salim, 10th Dist. Franklin No. 12AP-807, 2013-Ohio-2746. Jurisdiction for quo warranto actions is statutorily established in R.C. 2733.03 which provides “[a]n action in quo warranto can be brought only in the supreme court, or in the court of appeals of the county in which the defendant, or one of the defendants, resides or is found, or, when the defendant is a corporation, in the county in which it is situated or has a place of business.” R.C. 2733.03. Therefore, jurisdiction for quo warranto actions is “exclusively vested in the courts of appeals and the Supreme Court.” State ex rel. Battin v. Bush, 40 Ohio St.3d 236, 238, 533 N.E.2d 301 (1988). In turn, “the courts of common pleas are without jurisdiction over actions in quo warranto.” Id.
As noted, skilled lawyers – unfortunately unfamiliar with the constraints placed upon injunctive relief – will plead the claims as declaratory judgment seeking to uphold the validity of a contested election. Ergo, the court would not be seeking ouster of one group, but rather, that the properly held election, by authority of the corporation ousted the rogue group. The relief sought, therefore, is argued as only ancillary to quo warranto and constitutes a valid declaratory judgment which the Court has the inherent authority to enforce through injunctive relief. See N. Dayton First Church of God v. Berger, 2d Dist. Montgomery No. 18171, 2000 WL 1597963 (Oct. 27, 2000).
A common pleas court, however, should not be distracted by such legal sleight of hand. A court presiding over a request for injunctive relief, even if pleaded as tangential to declaratory judgment, must “identify the core issues raised by the parties for judicial resolution.” El Khattab Mosque, 2013-Ohio-2746. The Tenth District explained that “[i]f the principal or primary issue is the validity of the election of corporate officers, then the action, no matter how pleaded, is actually a quo warranto action.” Id., citing State ex rel. Babione v. Martin, 97 Ohio App.3d 539, 544, 647 N.E.2d 168 (6th Dist.1994) and Goldberg v. Rite Rug Co., 10th Dist. Franklin 1983 WL 3584 (June 23, 1983). If the core relief sought is “a declaratory judgment stating which claimant has a right to office and/or an injunction ordering the removal of a person from office, then the action must be pursued through a quo warranto action.” Id., citing Greater Temple Christian Church, 9th Dist. Summit, 2006-Ohio-3284; Strah v. Lake Cty. Humane Soc., 90 Ohio App.3d 822, 828, 631 N.E.2d 165 (11th Dist.1993); Hendershot v. Conner, 48 Ohio App.2d 335, 357 N.E.2d 386 (9th Dist.1974); Capri v. Johnson, 32 Ohio App.2d 95, 288 N.E.2d 604 (10th Dist.1972).
Quite typical of these “disguised” quo warranto actions, El Khattab Mosque involved a dispute about who the legitimate board members were of a non-profit corporation in Columbus that operated a local mosque. The mosque members allegedly held a special meeting to elect a new group of leaders. The former leaders alleged claims of fraudulent misrepresentation, intentional interference with business relationships, and civil conspiracy as the new board allegedly fraudulently took over bank accounts and interfered with existing contracts and relations. Of course, the new board filed a counterclaim requesting the trial court to issue a declaratory judgment stating that they, not the plaintiffs, were the legitimate board. It should only stand to reason, therefore, that the court is called upon to decide which group hold the legitimate “warrant” to occupy the positions. The trial court dismissed the action and, as noted, the Tenth District affirmed.
With the clarity of 20/20 vision (pardon the pun), in January, 2020, the Court of Appeals for the Second Appellate District, Montgomery County, affirmed in part, and reversed in part an action brought by competing board members of a Home Owners’ Association by finding the Court of Common Pleas had no jurisdiction to entertain such a quo warranto action. Kirby v. Oatts, 2020-Ohio-301 (January 31, 2020).
An important caveat to the real-party-in-interest question is that an individual may bring her own petition for a writ of quo warranto, by-passing the attorney general or prosecutor, but only if that individual is contesting the warrant to hold public office. Government service positions, elected council, trustee or commission positions, fall within this category. But, the original jurisdiction still does not lie with a court of common pleas. Quo warranto may only be entertained by the Supreme Court or the District Appellate Court with jurisdiction over the parties.