[Cite as Tuttle v. Collins, 2020-Ohio-4062.]


                                COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

CHRISTEEN TUTTLE, ET AL.,                            :

                 Plaintiffs-Appellants,              :
                                                              No. 108909
                 v.                                  :

TIM COLLINS, ET AL.,                                 :

                 Defendants-Appellees.               :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: August 13, 2020


            Civil Appeal from the Cuyahoga County Court of Common Pleas
                                Case No. CV-19-916042


                                               Appearances:

                 The Pattakos Law Firm L.L.C., Peter Pattakos, and
                 Rachel Hazelet, for appellants.

                 Mazanec, Raskin & Ryder Co., L.P.A., Todd M. Raskin,
                 and Frank H. Scialdone, for appellees.



RAYMOND C. HEADEN, J.:
                   Plaintiffs-appellants Christeen Tuttle, Richard Parke, and Dr. Ted

Peterson (“Appellants”) appeal from the trial court’s decision granting defendants-
appellees’ motion to dismiss pursuant to Civ.R. 12(C). For the reasons that follow,

we affirm the lower court’s ruling.

    I.   Factual and Procedural History

              On May 30, 2019, Appellants, on behalf of Dunham Tavern Museum

(“DTM”), filed a derivative lawsuit naming Tim Collins (“Collins”) and David

Wagner (“Wagner”)1 as defendants and Dunham Tavern Museum (“DTM”) as a

nominal defendant (“Appellees”), and sought to void the DTM Board’s authorization

to sell land to the Cleveland Foundation.

              DTM is a not-for-profit corporation whose mission and vision is to

maintain, develop, and share the DTM campus for educational and cultural

purposes; provide urban green space in Midtown Cleveland; and return the DTM to

its roots by serving as a place for urban history, education, nature, and community.

(Complaint at ¶ 2.) DTM’s Board is governed by DTM’s bylaws.

              Around 2012, DTM acquired 2.28 acres of land (“the Greenspace”) in

furtherance of its mission and vision. Between 2012 and 2017, DTM ran a financial

campaign and raised over $700,000 to develop the Greenspace. Improvements

were made to the Greenspace including the construction of a new stone wall,

building a new gathering space and patio, planting trees, and making improvements

to the existing landscaping.




1Collins and Wagner, at all relevant times, were members of the DTM Board of Trustees
(“Board”).
              In early 2018, the Cleveland Foundation demonstrated an interest in

purchasing 1.2 acres of the Greenspace for its new headquarters. The proposed sale

of the acreage to LASSI Enterprises, L.L.C., as a designee of the Cleveland

Foundation, was discussed with Collins and Wagner, members of the DTM Board.

              In 2018, Wagner and William Nice (“Nice”), husband of Board

member Laurie Nice, obtained an appraisal of DTM’s real estate including the

Greenspace. Wagner and Nice were both members and managing directors of

Hanna Commercial Real Estate Co. The appraisal served as a basis for the purchase

price in the proposed sale to the Cleveland Foundation. No additional appraisals

were obtained.

              The Board first learned of the proposed sale on December 11, 2018,

and the membership was formally notified at a later date. Not all of the DTM

membership supported the proposed sale. On March 1, 2019, a letter signed by 26

DTM members and donors was presented to the Board that stated their

dissatisfaction with the proposed sale and their intent to cancel or withhold future

donations to DTM. Regardless, the Board, including Wagner and Collins, proceeded

with obtaining the Board’s vote to approve the sale.

              The first vote took place in February 2019, and resulted in a 10-7 vote

in favor of authorizing DTM to execute a letter of intent to participate in a proposed

sale of a portion of the Greenspace to the Cleveland Foundation. A second vote on

March 12, 2019, reflected a 12-6 vote, again in favor of the proposed sale, and a

purchase agreement was executed following that vote. However, several members
of the Board voiced their concern regarding the sufficiency of the vote. Specifically,

the members questioned whether trustees Bole, Collins, Ellner, Luby, Nice, Wagner,

and Warren had conflicts of interest or conflicts of responsibility because they

allegedly would benefit financially and personally from the sale of the real estate.2

The presence of a conflict of interest or conflict of responsibility at the time of the

Board vote allegedly resulted in a bylaws violation. It was also alleged that trustees

Bole, Nice, and Rokententz voted on March 12, 2019, even though their membership

dues were in arrears, also in violation of DTM’s bylaws. The argument presented

was that because the March 12, 2019 vote was taken in violation of DTM’s bylaws,

the subsequently issued letter of intent and purchase agreement were unauthorized

and void. Appellants communicated these concerns via a letter on April 5, 2019,

from Appellants’ counsel to Collins in his capacity as Board president.

               Appellants’ counsel forwarded a second letter on April 30, 2019, that

demanded the Board (1) comply with DTM’s bylaws regarding conflicts of interest

and responsibility and voting requirements, and (2) resubmit the proposed sale for

a vote that complied with DTM’s bylaws and demanded abstentions by those board

members with conflicts of interest. The letter also notified the Board that Appellants

would initiate litigation to protect DTM’s interests. In an attempt to remedy the

challenged vote, a revote occurred on May 14, 2019. Each voting trustee completed



      2 The Appellants claim several trustees’ engagement with the Cleveland real-estate
market, including ownership with properties neighboring DTM, translate to financial and
personal gains to those trustees upon the sale of a portion of the Greenspace.
a conflict of interest questionnaire. Per Appellees, the questionnaire responses

indicated the absence of any conflicts of interest by any of the voting trustees,

including those named in the complaint. Additionally, the Executive Director of

DTM verified all trustees voting on May 14, 2019, had fully paid their membership

dues. The revote resulted in a 12-6 vote, again in favor of the proposed sale.

               Appellants continued to challenge the validity of the May 14, 2019

vote, and on May 28, 2019, Appellants’ attorney forwarded a letter to the Board that

demanded the Board declare the vote approving the proposed sale as invalid.

Appellants continued to argue that the vote violated DTM’s bylaws due to conflicts of

interest and conflicts of responsibility held by a number of trustees and a violation of

the voting procedures. The Appellants, through counsel, also claimed Collins and

Wagner breached their fiduciary duties as directors because they received a personal

or financial gain from the proposed sale.         The Board neither rescinded nor

invalidated the May 14, 2019 vote.

               On August 16, 2019, Appellants filed a derivative lawsuit identifying

three causes of action:

       Count 1 — violation of bylaws relating to conflicts of interest

       Count 2 — violation of bylaws relating to voting procedures

       Count 3 — breach of fiduciary duty.

Within the complaint, Appellants sought a declaration that the letter of intent and

purchase agreement to sell the property to the Cleveland Foundation were based

upon a vote taken in violation of DTM’s bylaws and in breach of Collins’s and
Wagner’s fiduciary duties, and therefore, the Board’s acts were unauthorized.

Appellants sought invalidation and recission of the documents authorizing DTM’s

sale of the property. Appellants also sought compensatory and punitive damages

from the individual Appellees based upon their alleged breach of fiduciary duties.

               Appellees filed a timely answer and counterclaim on June 28, 2019,

as well as a motion for judgment on the pleadings (“motion for judgment”) pursuant

to Civ.R. 12(C). Appellees also filed a preliminary injunction. The trial court granted

Appellees’ motion for judgment on the pleadings on July 24, 2019, and found

Appellees’ request for a preliminary injunction moot. The trial court filed a journal

entry on July 24, 2019, indicating the case was dismissed with prejudice.

               On August 16, 2019, Appellants filed a timely appeal and raised four

assignments of error:

      Assignment of Error 1: The trial court erred when it entered judgment
      on the pleadings on Plaintiffs’ claim for violation of DTM bylaw barring
      conflicts of interest and conflicts of responsibility.

      Assignment of Error 2: The trial court erred by entering judgment on
      the pleadings on Plaintiffs’ claim for breach of fiduciary duty against
      the individual Defendants.

      Assignment of Error 3: The trial court erred by entering judgment on
      the pleadings on Plaintiffs’ claim for violations of the DTM bylaws
      regulating voting procedures.

      Assignment of Error 4: The trial court erred by failing to permit
      Plaintiffs the opportunity to amend their Complaint to correct any
      pleading deficiencies.

               Following the trial court’s dismissal of the case, Appellants did not file

a motion for stay or injunction in an attempt to prevent transfer of the property to
the Cleveland Foundation. During the pendency of this appeal, the Board executed

the purchase agreement for the sale of 1.2 acres to the Cleveland Foundation. DTM

transferred title to the property by a deed that was executed on November 21, 2019,

and recorded with the Cuyahoga County Recorder on November 25, 2019.

II. Law and Analysis

      A. Motion for Judgment on the Pleadings

              Appellants contend that the trial court erred when it granted

Appellees’ Civ.R. 12(C) motion for judgment.

              A judgment on the pleadings raises only questions of law that are

reviewed under a de novo standard of review. Cohen v. Bedford Hts., 8th Dist.

Cuyahoga No. 101739, 2015-Ohio-1308, ¶ 7. An appellate court must “accept all

factual allegations of the complaint as true and draw all reasonable inferences in

favor of the nonmoving party.” Grey v. Walgreen Co., 197 Ohio App.3d 418, 2011-

Ohio-6167, 967 N.E.2d 1249, ¶ 3 (8th Dist.), citing Byrd v. Faber, 57 Ohio St.3d 56,

565 N.E.2d 584 (1991). A determination of a motion for judgment takes into

consideration the complaint, answer, and any material attached as exhibits to those

pleadings. Schmitt v. Educational Serv. Ctr., 8th Dist. Cuyahoga No. 97623, 2012-

Ohio-2210, ¶ 9. However, unsupported conclusions are not considered admitted

and are not sufficient to withstand a motion to dismiss. Mitchell v. Lawson Milk

Co., 40 Ohio St.3d 190, 193, 532 N.E.2d 753 (1988).

              Courts review Civ.R. 12(C) motions under a Civ.R. 12(B)(6) standard:

      The Ohio Supreme Court has held that a Civ.R. 12(C) motion for
      judgment on the pleadings is to be considered as if it were a belated
      motion to dismiss for failure to state a claim upon which relief can be
      granted. State ex rel. Pirman v. Money (1994), 69 Ohio St.3d 591, 592,
      1994 Ohio 208, 635 N.E.2d 26. Therefore, we will analyze the [Civ.R
      12(C) motion] under the same principles which we would apply in
      reviewing a Civ.R. 12(B)(6) dismissal.

Black v. Coats, 8th Dist. Cuyahoga No. 85067, 2005-Ohio-2460, ¶ 6.

               A Civ.R. 12(B)(6) “‘motion to dismiss for failure to state a claim upon

which relief can be granted is procedural and tests the sufficiency of the complaint.’”

State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605

N.E.2d 378 (1992), quoting Assn. for the Defense of the Washington Local School

Dist. v. Kiger, 42 Ohio St.3d 116, 117, 537 N.E.2d 1292 (1989). In Ohio, under notice

pleading, a plaintiff need not prove his case at the pleading stage. DSS Servs., L.L.C.

v. Eitel’s Towing, L.L.C., 10th Dist. Franklin No. 18AP-567, 2019-Ohio-3158, ¶ 10.

A plaintiff is required under Civ.R. 8(A)(1) to provide a short and plain statement of

the claim demonstrating that the claimant is entitled to relief. McBride v. Parker,

5th Dist. Richland No. 11 CA 122, 2012-Ohio-2522, ¶ 27. “In order to dismiss a

complaint for failure to state a claim upon which relief can be granted, the court

must find beyond doubt that plaintiff can prove no set of facts warranting relief after

it presumes all factual allegations in the complaint are true, and construes all

reasonable inferences in plaintiff’s favor.” Black at ¶ 7, citing State ex rel. Seikbert

v. Wilkinson, 69 Ohio St.3d 489, 490, 633 N.E.2d 1128 (1994).
   1. Conflict of Interest

               Under the first assignment of error, Appellants argue that the trial

court erred when it granted Appellees’ motion for judgment because DTM violated

Article II, Section 6 of its bylaws that reads:

       Article II, Board of Trustees, Section 6, Duality of Interest

       A Trustee having a conflict of interest or conflict of responsibility on
       any matter involving the Corporation and any other business entity or
       person shall refrain from voting on such matter. No Trustee shall use
       his or her position as a Trustee of the Corporation for his or her own
       direct or indirect financial gain.3


               Under Count 1 of their complaint, Appellants allege that trustees

Collins, Wagner, Bole, Ellner, Luby, Nice, and Warren — all who voted to approve

the proposed sale to the Cleveland Foundation — violated the above bylaw due to

their conflicts of interest. The presence of those conflicts allegedly resulted in an



       3
         The terms “conflict of interest” and “conflict of responsibility” are not defined
within the bylaws. “Conflict of interest” is a term used regularly within the legal context
and has been defined as “‘a real or seeming incompatibility between one’s private interests
and one’s public or fiduciary duties.’” In re Testamentary Trust of Bernard, 9th Dist.
Summit No. 24025, 2008-Ohio-4338, ¶ 16, quoting Black’s Law Dictionary 319 (8th
Ed.Rev.2004). In contrast, “conflict of responsibility” is not a term of art adopted in this
same arena, and the appellants’ introduction of the American Society of Diagnostic &
Interventional Nephrology’s definition of a “conflict of responsibility” is tenuous at best
to indicate DTM’s intended application of the term. Further, there is no recognized cause
of action in Ohio against a trustee for a conflict of responsibility nor, as conceded by
Appellants, is there any case law in Ohio or any jurisdiction on this issue. Accordingly,
the trial court correctly dismissed the portion of Count 1 of Appellants’ complaint that
alleged a conflict of responsibility. Krause v. Case W. Res. Univ., 8th Dist. Cuyahoga
No. 70712, 1996 Ohio App. LEXIS 5784, 33 (Dec. 19, 1996). (A cause of action
unrecognized in Ohio does not represent a cognizable claim and fails to state a claim upon
which relief can be granted.) The remainder of this opinion will address only Appellants’
alleged conflict of interest.
improper vote authorizing the trustees to enter the proposed sale with the Cleveland

Foundation. The conflicts of interest stem from the trustees’ involvement with the

Cleveland real estate market and the claim that they will benefit financially, either

directly or indirectly, from the proposed sale. Appellants seek the invalidation and

rescission of the documents that authorized the trustees to enter the proposed sale.

              The trustees’ connections to the real-estate market vary widely.

Collins is engaged in the commercial real-estate market as a partner in a law firm

that practices real estate law. Wagner is a principal and managing director of Hanna

Commercial Real Estate, a commercial real-estate broker. Appellants contend that

Collins’s and Wagner’s recommendations, facilitation, and participation in the sale

of DTM’s property conferred a benefit on their past, current, and potential clients,

but provide no specific instances of such gain. (Complaint at ¶ 40.)

              Plaintiffs further propose a conflict of interest on behalf of DTM

board member Laurie Nice because her husband, Nice, is a principal and managing

director for Hanna Commercial Real Estate.         (Complaint at ¶ 43.)     Nice, in

conjunction with Collins, prepared an appraisal of the property in question.

(Complaint at ¶ 23.) DTM board member Russel Warren’s purported conflict of

interest stems from his position as managing director for Edgepoint Capital, a

company that brokered real-estate transactions in the area surrounding the DTM

property. (Complaint at ¶ 44.) Board member Brenda Ellner owns interest in real-

estate parcels neighboring the DTM property. (Complaint at ¶ 45.) Board member

Richard Bole, Jr. is married to Aparna Bole, a trustee on the board of Midtown,
Cleveland, Inc., which owns the LASSI Enterprises L.L.C. LASSI Enterprises L.L.C.

is the designated purchaser of the DTM property. (Complaint at ¶ 46.) And a

conflict of interest allegedly exists for DTM board member Wendy Luby who is an

employee of Key Bank where Cleveland Foundation is a client. (Complaint at ¶ 47.)

              The Appellants argued that the property values surrounding DTM

will increase dramatically due to the proposed sale, and in turn, the trustees will

experience a financial gain. Appellants’ complaint stated:

      [I]f the Cleveland Foundation builds and operates its headquarters on
      the DTM Greenspace, the surrounding real estate will increase in value
      significantly and substantially, and the owners of the surrounding
      property — including other repeat players in the Cleveland real estate
      market and past, current, and potential clients of Collins and Wagner
      — will realize significant and substantial financial benefit as a result.

(Complaint at ¶ 39.)

              Appellants’ conclusions that the noted trustees will personally benefit

from the sale are based on a March 2019 Greater Cleveland Partnership press release

that reads:

      The DTM is located in a federally designated “opportunity zone,” and
      is thus subject to legislation giving private investors investing capital
      gains into real estate within the zone a range of potential tax breaks on
      the profits from those real estate investments. According to a March
      2019 press release by the Greater Cleveland Partnership, the local
      chamber of commerce, “the floodgates are about to open regarding
      investment in opportunity zones,” and “the program has the potential
      to raise hundreds of millions of dollars in catalytic urban development
      opportunities here, stimulating growth and job creation in Cleveland
      and surrounding communities,” including the “Health-Tech Corridor”
      opportunity zone in which the DTM resides.

(Complaint at ¶ 36.)
               It is these speculative property value increases that serve as the basis

for the trustees’ alleged financial gain or conflict of interest. The above statements,

relied upon in Count 1 of Appellants’ complaint, are simply a recitation of a local

chamber of commerce’s press release and are “legal conclusions, deductions, or

opinions couched as factual allegations.” Allstate Ins. Co. v. Electrolux Home

Prods., 8th Dist. Cuyahoga No. 97065, 2012-Ohio-90, ¶ 8. Property values are

subject to a multitude of factors and it is unreasonable to assume that an increase in

real estate values are guaranteed under any setting. For instance, real estate values

declined following the unexpected 2008 recession.             Similarly, the Covid-19

pandemic was unanticipated and is likely to adversely affect the commercial real-

estate market. While the 2019 press release states there is a “potential” that the real

estate values surrounding DTM will increase, the statement is merely conjecture and

supposition and lacks any factual basis.         Therefore, the statements are not

considered in a Civ.R. 12(C) motion to dismiss.

               Upon review, we find Appellants’ complaint lacks any factual

allegations supporting or enhancing the inference that the property values

surrounding DTM will increase in value following the proposed sale or that any

trustees experienced financial gain from the sale. Without such allegations, the

complaint fails to provide sufficient facts to support an essential element of their

claim — i.e., personal gain by the trustees establishing a conflict of interest.

               “‘[U]nsupported conclusions of a complaint are not considered

admitted * * * and are not sufficient to withstand a motion to dismiss.’” Electrolux
Home Prods. at ¶ 8, quoting State ex rel. Hickman v. Capots, 45 Ohio St.3d 324,

544 N.E.2d 639 (1989), citing Schulman v. Cleveland, 30 Ohio St.2d 196, 198, 283

N.E.2d 175 (1972). ““‘[L]egal conclusions, deductions, or opinions couched as

factual allegations are not given a presumption of truthfulness.’”” Electrolux Home

Prods. at ¶ 8, quoting Williams v. U.S. Bank Shaker Square, 8th Dist. Cuyahoga

No. 89760, 2008-Ohio-1414, at ¶ 9, quoting Crane & Shovel Sales Corp. v. Bucyrus-

Erie Co., 854 F.2d 802, 810 (6th Cir.1988). Because Appellants’ allegations of a

conflict of interest are based upon deductions or opinions, they cannot withstand a

motion to dismiss. We find Count 1 of Appellants’ complaint is devoid of any factual

allegations that support or enhance an inference that the identified trustees

benefitted from the sale of the DTM property thereby demonstrating a conflict of

interest.   The trial court correctly dismissed Count 1 pursuant to Appellees’

Civ.R. 12(C) motion, and we find no merit to Appellants’ first assignment of error.

   2. Breach of Fiduciary Duty

               Appellants’ second assignment of error, which corresponds with

Count 3 of the complaint, presented a claim for breach of fiduciary duty against

Collins and Wagner. Appellants assert that a breach of Collins’s and Wagner’s

fiduciary duties occurred when the two board members failed to disclose the

existence of their conflicts of interest and responsibility; failed to abstain from

participating in the proposed sale; and participated in the sale to accrue personal

and financial gain. In other words, due to Collins’s and Wagner’s conflicts of

interest, they breached their fiduciary duties.
               R.C. 1702.30 imposes fiduciary duties on a nonprofit corporation’s

board of directors. DiPasquale v. Costas, 186 Ohio App.3d 121, 2010-Ohio-832, 926

N.E.2d 682, ¶ 125 (2d Dist.).4 A director’s fiduciary duty is more clearly defined

within R.C. 1702.30 and incorporates the dual duties of loyalty and care. The duty

of loyalty requires a director to “perform * * * in good faith, in a manner the director

reasonably believes to be in or not opposed to the best interests of the corporation,”

while the duty of care obligates a director to exercise “the care that an ordinarily

prudent person in a like position would use under similar circumstances.”

R.C. 1702.30(B); Vontz v. Miller, 2016-Ohio-8477, 111 N.E.3d 452, ¶ 42 (1st Dist.),

quoting R.C. 1701.59(B). A plaintiff must prove a breach of these duties by clear and

convincing evidence. R.C. 1702.30(D)(1).

               Ohio courts look to the business judgment rule when reviewing a

director’s conduct. Koos v. Cent. Ohio Cellular, 94 Ohio App.3d 579, 589, 641

N.E.2d 265 (8th Dist.1994).        The business judgment rule “‘is a rebuttable

presumption that directors are better equipped than the courts to make business

judgments and that the directors acted without self-dealing or personal interest and

exercised reasonable diligence and acted with good faith.’” Slosar v. Homestead

Creek Homeowners Assn., 8th Dist. Cuyahoga No. 96320, 2011-Ohio-4420, ¶ 25,

quoting Gries Sports Ent., Inc. v. Cleveland Browns Football Co., 26 Ohio St.3d 15,

20, 496 N.E.2d 959 (1986). “A party challenging a board of directors’ decision bears



      4 For the purpose of a nonprofit corporation, the word “director” is synonymous
with the term “trustee.” R.C. 1702.01(K).
the burden of rebutting the presumption that the decision was a proper exercise of

the business judgment of the board.”          NCS Healthcare, Inc. v. Candlewood

Partners, L.L.C., 160 Ohio App.3d 421, 2005-Ohio-1669, 827 N.E.2d 797, ¶ 26 (8th

Dist.), quoting Gries at 20.

                “‘[T]he general rule * * * [is] that directors carry the burden of

showing that a transaction is fair only after the plaintiff has made a prima facie case

showing that the directors have acted in bad faith or without the requisite

objectivity.’” Koos at 589, quoting Radol v. Thomas, 772 F.2d 244, 257 (6th

Cir.1985). Thus, to overcome the Civ.R. 12(C) motion, Appellants had to plead facts

sufficient to avoid the presumption that Collins and Wagner acted in the best

interest of DTM pursuant to the business judgment rule. NCS Healthcare, Inc. at

¶ 29.

                Appellants argue that Appellees Collins and Wagner breached their

duties of loyalty because they were not disinterested directors — they expected to

derive personal benefits from the proposed sale — and, therefore, the protections of

the business judgement rule do not apply. Gries at 20, citing Sinclair Oil Corp. v.

Levien, 280 A.2d 717, 720 (Del.1971).5

                Appellants rely on Stepak v. Schey, 51 Ohio St.3d 8, 14, 553 N.E.2d

1072 (1990), in support of their claim:

        It is well recognized that directors of a corporation occupy a fiduciary
        relationship to the corporation and its shareholders and are held

        Disinterested directors are also those who have participated on both sides of the
        5

disputed transaction. Koos at 590. Here, Appellants presented no allegations that Collins
and Wagner engaged in such behavior.
      strictly accountable and even liable if corporate property or funds are
      wasted or mismanaged due to their inattention to the duties of their
      trust. Consequently, “[w]hen a director breaches his duty of trust and
      benefits at the expense of the corporation, under Ohio law the director
      is liable for any profits he received. It matters not that the director acted
      absent actual fraudulent intent; as long as the director places himself
      in a position of conflicting loyalties and subsequently violates his
      primary obligation to the corporation, liability attaches.”

Id., quoting Ohio Drill & Tool Co. v. Johnson, 625 F.2d 738, 742 (6th Cir.1980).

               While Appellants maintain that Collins’s and Wagner’s involvement

with the Cleveland real-estate market resulted in their direct or indirect financial

benefit from the proposed sale, as is detailed above regarding Appellants’ first

assignment of error, Appellants’ complaint failed to provide sufficient facts to

establish a conflict of interest by Collins or Wagner.

               As stated by the trial court, Collins’s and Wagner’s employment in the

real-estate industry — skills that may have made their presence on the board

advantageous — do not equate to a conflict of interest:

      The fact that any board member possesses a degree of proficiency and
      success in their career does not, in and of itself, constitute a conflict. In
      fact, that success is usually the very reason the member has been
      invited to participate on the board. The mere speculation of an
      undefined harm and/or benefit is insufficient to overcome defendants’
      motion for judgment on the pleadings.

(Trial court’s opinion and order (Final) at 7.) Further, there are no allegations of

wrongdoing by Hanna Commercial Real Estate or any indication this entity

experienced a gain or benefit or was involved in the proposed sale except for

generating an appraisal of the subject property. Collins’s and Wagner’s tenuous

connections to the proposed sale fall short of providing a conflict of interest.
                 Appellants failed to allege material facts stating the Appellees

personally benefited from the sale of the DTM — facts required to establish

Appellants’ breach of fiduciary duty claim. Absent substantiated allegations of a

conflict of interest, Count 3 of Appellants’ complaint was properly dismissed under

a Civ.R. 12(C) motion, and thus, Appellants’ second assignment of error lacks merit.

   3. Voting

                 Under the third assignment of error, Appellants argue that the trial

court erred when it granted Appellees’ motion for judgment because DTM violated

its voting bylaws. Specifically, Appellants argue that because the Board’s May 14,

2019 vote did not comport with the bylaws’ voting procedures, the vote was

improper and did not authorize the Board to negotiate a sale of the subject real

estate. Appellees argue that a complaint based upon conjecture, speculation, and

legal conclusion was insufficient to maintain an action under Civ.R. 12(C).

                 The Board took several votes regarding the proposed sale to the

Cleveland Foundation. The first vote occurred in February 2019, with a final count

of 10-7 in favor of authorizing DTM to execute a letter of intent to participate in the

proposed sale. DTM’s bylaws required a vote of at least 11 members to support a

proposal. A second vote on March 12, 2019, resulted in a 12-6 tally in favor of the

proposed sale. The Board secured a final vote on May 14, 2019, also in favor of the

proposed sale.

                 Appellants alleged in Count 2 of their complaint that the votes cast by

trustees Bole, Nice, and Rokententz on May 14, 2019, were in violation of the bylaws
because those trustees’ membership dues were in arrears at the time of the vote, and

therefore, they were not active DTM members. Although Appellants cited Article II

(Section 2), Article VI (Section 4.1), and Article VII (Sections 1 and 4) of the bylaws

under Count 2, Appellants’ complaint merely stated the membership dues in

question were in arrears. However, attached to Appellees’ answer are dues receipts

for each board of trustee that cast a vote on May 14, 2019. The receipts reflect a

number of details including the date of the receipt, the member’s name, and the date

through which the membership dues are paid. After reviewing the dues payment

receipts for all members who voted on May 14, 2019, we find none of the voting

members were in arrears at the time of the vote.6

               There is no set of facts upon which Appellants could prevail on

Count 2 — voting bylaw violations — and therefore, there is no merit to Appellants’

third assignment of error.

      B. Amendment of the Complaint

               Appellants request that if this court affirms the lower court’s granting

of the Civ.R. 12(C) motion, the court remand the case and provide Appellants an

opportunity to amend their complaint.

               The amendment of a complaint is governed by Civ.R. 15(A) that reads:

      (A) Amendments.



      6 One member, Laurie Nice, paid her dues on May 14, 2019, so it is arguable that
her dues were in arrears at the time of the vote. However, because the final tally was 12-
6 in favor of the proposed sale, the vote would have passed even without Laurie Nice’s
vote.
       A party may amend its pleading once as a matter of course within
       twenty-eight days after serving it or, if the pleading is one to which a
       responsive pleading is required within twenty-eight days after service
       of a responsive pleading or twenty-eight days after service of a motion
       under Civ.R. 12 (B), (E), or (F), whichever is earlier. In all other cases,
       a party may amend its pleading only with the opposing party’s written
       consent or the court’s leave. The court shall freely give leave when
       justice so requires. Unless the court orders otherwise, any required
       response to an amended pleading must be made within the time
       remaining to respond to the original pleading or within fourteen days
       after service of the amended pleading, whichever is later.

Civ.R. 15.

                Appellants filed their complaint on May 30, 2019, and a timely

answer was filed on June 28, 2019. Pursuant to Civ.R. 15(A), Appellants had the

option to amend their complaint, without requesting leave of court, within 28 days

of the Appellees’ filing an answer. Following that time, Appellants could have

requested leave to file an amended answer in accordance with Civ.R. 15. However,

Appellants declare that they “legitimately believed that their claims were not subject

to dismissal under Rule 12(C) and thus did not request leave to amend.” (Appellants’

brief at 24.)

                On July 24, 2019, the trial court filed a journal entry that granted

Appellees’ motion for judgment on the pleadings and dismissed Appellees’

counterclaim. The case was dismissed with prejudice — a final appealable order. 7



       7
        “A judgment is final and appealable if it satisfies the requirements of R.C. 2505.02
and, if applicable, Civ.R. 54(B).” State ex rel. Jones v. Athens, 4th Dist. Athens
No. 16CA15, 2017-Ohio-7370, ¶ 28, citing Chef Italiano Corp. v. Kent State Univ., 44 Ohio
St.3d 86, 541 N.E.2d 64 (1989), syllabus. Because the trial court’s judgment entry
dismissed all of the Appellants’ lawsuit, it constituted an order that affected a substantial
right of the Appellants which, in turn, determined the action. Coey v. United States
The only subsequent motion filed by Appellants was their notice of appeal.

Appellants now argue they should be permitted to file an amended complaint.

               “After the entry of a final appealable order dismissing the original

complaint, a plaintiff can only seek to amend its complaint through the submittal of

a Civ.R. 60(B) motion along with a proposed amended complaint.” Roberts v.

Columbus City Police Impound Div., 195 Ohio App.3d 51, 2011-Ohio-2873, 958

N.E.2d 970, ¶ 24 (10th Dist.), citing Rahn v. Whitehall, 62 Ohio App.3d 62, 67, 574

N.E.2d 567 (10th Dist. 1989); see W. Ins. Co. v. Lumbermans Mut. Ins. Co., 26 Ohio

App.3d 137, 499 N.E.2d 1 (9th Dist.1985). Appellants’ failure to file a Civ.R. 60(B)(5)

motion precludes them from now filing an amended complaint. Thus, appellants’

fourth assignment of error lacks merit.

               Judgment affirmed.

       It is ordered that appellees recover from appellants costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate be sent to said court to carry this judgment

into execution.




Health Corp., 4th Dist. Scioto No. 96CA2439, 1997 Ohio App. LEXIS 1261, 4 (Mar. 18,
1997). Thus, the judgment entry granting Appellees’ motion for judgment on the
pleadings constituted a final appealable order pursuant to R.C. 2505.02. Civ.R. 54(B)
does not apply in this case where the judgment entry applied to all of the claims of the
parties. Miller v. First Internatl. Fid. & Trust Bldg., 113 Ohio St.3d 474, 2007-Ohio-2457,
866 N.E.2d 1059, ¶ 10 (“It is only in cases in which fewer than all the claims or fewer than
all the parties are disposed of in the entry” that Civ.R. 54(B) applies.).
      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



                                             _____
RAYMOND C. HEADEN, JUDGE

PATRICIA ANN BLACKMON, P.J., and
EILEEN A. GALLAGHER, J., CONCUR
