Barack v. Belmont Savs. Bank

[Cite as Barack v. Belmont Savs. Bank, 2023-Ohio-1679.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

BELMONT COUNTY

ROGER A. BARACK ET AL.,

Plaintiffs-Appellants,

v.

BELMONT SAVINGS BANK ET AL.,

Defendants-Appellees.

OPINION AND JUDGMENT ENTRY

Case No. 22 BE 0051

Civil Appeal from the

Court of Common Pleas of Belmont County, Ohio

Case No. 20 CV 222

BEFORE:

David A. D’Apolito, Carol Ann Robb, Mark A. Hanni, Judges.

JUDGMENT:

Affirmed.

Atty. Cory R. Barack, Barack Law, LLC, 3201 Belmont Street, Suite 814, Bellaire, Ohio

43906, for Plaintiffs-Appellants and

Atty. Robert P. Fitzsimmons, Fitzsimmons Law Firm, PLLC, 1609 Warwood Avenue,

Wheeling, West Virginia 26003. Atty. Charles H. Bean, Thornburg & Bean, 113 West

Main Street, P.O. Box 96, St. Clairsville, Ohio 43950. Atty. Holly S. Planinsic, Herndon

Morton Herndon & Yaeger, 83 Edgington Lane, Wheeling, West Virginia 26003, for

Defendants-Appellees.

Dated: May 16, 2023

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D’Apolito, P.J.

{¶1} Appellants, Roger A. Barack, Lana J. Barack, Cody R. Barack, and Heinlein

Properties, Inc., appeal from the September 14, 2022 judgment of the Belmont County

Court of Common Pleas granting Appellees’, Belmont Savings Bank, Charles H. Bean,

Mark Bukmir, Todd D. Cover, Thomas W. Johnson, David L. Sullivan, S. Daniel Mumma,

and Samuel Vucelich, second motion for summary judgment following this court’s reversal

and remand in Barack v. Belmont Savings Bank, 7th Dist. Belmont No. 21 BE 0023, 2022-

Ohio-678.1

{¶2} This civil action was brought by Appellants against Appellees Belmont

Savings Bank (the “Bank”) and its individual directors (collectively the “Board”). The trial

court twice ruled in favor of Appellees in their motions for summary judgment. As a result,

Appellants assert they remain unjustly deprived of their voting power.2

{¶3} Appellants filed a civil complaint against Appellees on September 14, 2020.

The trial court granted Appellees’ first motion for summary judgment on May 11, 2021.

Appellants filed their first appeal, Case No. 21 BE 0023, raising four assignments of error:

(1) the trial court erred by ignoring the existence of material facts that are in genuine

dispute; (2) the trial court erred in wrongfully applying the doctrine of laches; (3) the trial

court erred in holding that R.C. 1101.05 and 1105.11 limited Appellants’ remedies; and

(4) the trial court erred in holding that Appellants failed to exhaust their administrative

remedies. Barack, supra. On March 2, 2022, this court found merit in all of Appellants’

assignments of error and reversed and remanded the trial court’s first grant of summary

judgment. Id. at ¶ 53.

{¶4} At issue in Appellants’ present appeal, Case No. 22 BE 0051, is the trial

court’s second grant of summary judgment, filed September 14, 2022. Finding no

reversible error, we affirm.

1 A summary judgment entry (findings of fact and conclusions of law) was filed on September 23, 2022.

2 Bank depositors enjoy voting rights proportional to their deposits.

Case No. 22 BE 0051

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FACTS AND PROCEDURAL HISTORY

{¶5} The material facts in this matter were summarized as follows in Appellants’

first appeal:

In all of 2016 and for many years before, Appellants Roger Barack, Lana

Barack, and Heinlein Properties, Inc. (Heinlein) were depositors at Appellee

Belmont Savings Bank (the Bank). As depositors, these appellants had

voting rights proportional to their deposits. Roger and Lana are husband

and wife. Roger owns Heinlein. Appellant Cody Barack is Roger and Lana’s

son. He became a depositor in late 2016. The other appellees are the

members of the Bank’s board of directors.

On October 2[5], 2016, the Bank held a special meeting (the [Special]

Meeting).[3] At the [Special] Meeting, the Bank amended its charter and

bylaws. These amendments limited the voting power of depositors such as

appellants. It limited any single depositor to $500,000 worth of votes.

Appellants had previously enjoyed significantly more voting power as they

had significantly more funds on deposit with the Bank.[4]

Pursuant to the Bank’s constitution, it was to publish notice of the [Special]

Meeting once a week for three weeks. The Bank did publish a notice of the

[Special] Meeting in The Times Leader. But the notice was only published

for three days in a row instead of the required three weeks in a row. The

problem was compounded by the fact that a Times Leader representative

informed the Bank that it had published the notice on October 4, 11, and 18,

2016, which would have been three weeks in a row. Appellants did not

3A regular meeting occurred right before the Special Meeting. There is no dispute that the regular meeting

was properly noticed and conducted.

4The amendments, in part, placed a limit of 5,000 votes that any single member could cast. The Old By-

Laws did not have such a limit.

Case No. 22 BE 0051

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receive notice of the [Special] Meeting and did not attend to vote on the

amendments.

Appellant Cody Barack subsequently ran for the Board of Directors of the

Bank on January 18, 2017. He lost the election.[5]

Cody subsequently filed a complaint with the Ohio Division of Financial

Institutions, which was dismissed on January 30, 2017.

Appellants later filed a complaint against appellees on September 14, 2020,

raising claims for violation of corporate constitution; negligence; dilution of

ownership rights; breach of duty of care; breach of duty of loyalty; civil

conspiracy; and seeking a declaratory judgment that the [Special] Meeting

was null and void, any votes cast at the [Special] Meeting were null and

void, and the amendments were null and void.[6]

After answering the complaint, appellees filed a motion for summary

judgment. They argued appellants’ claims were barred by the doctrine of

laches, barred by R.C. 1101.05 and R.C. 1105.11, the advisory directors

were not proper parties, and Cody was not a member of the Bank on the

day of the vote. Appellants filed a response in opposition arguing genuine

issues of material fact existed that precluded summary judgment on all

claims.

The court held a hearing on the summary judgment motion where it heard

arguments from both parties. It then determined that no genuine issue of

material fact existed and appellees were entitled to summary judgment as

a matter of law.

5 Appellant Cody Barack had no deposits in the Bank in October 2016 and, thus, was not a qualified

candidate for Board election. He was defeated under both the counting formula of the Old By-Laws and

New By-Laws. The trial court found Appellant Cody Barack lacks standing to challenge any of the actions

of the Bank. (9/23/2022 Summary Judgment Entry, p. 10).

6 Appellants did not name The Times Leader as a party and have taken no action against the newspaper.

Case No. 22 BE 0051

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Appellants filed a timely notice of appeal on June 7, 2021. They * * * raise[d]

four assignments of error for our review.

Barack, supra, at ¶ 2-10.

{¶6} As stated, on March 2, 2022, this court found merit in all of Appellants’

assignments of error and reversed and remanded the trial court’s first grant of summary

judgment. Id. at ¶ 53.

{¶7} Following remand and an additional period to develop evidence, on August

11, 2022, Appellees filed a second motion for summary judgment mainly on the basis that

Appellants were not damaged and that no justiciable controversy exists. Appellees

maintained Appellant Cody Barack could never have been elected to the Board under

either the Old Charter and By-Laws or the New Charter and By-Laws (adopted at the

Special Meeting) because he was neither eligible as a candidate nor a member of the

Bank (a requirement for voting rights). Stated differently, Appellees contended the

outcome is the same even if the Special Meeting’s amendment is annulled (a fact which

is uncontested). On September 6, 2022, Appellants filed an opposition mainly on the

basis that Appellees failed in their legal duty to ensure proper meeting notice and in

Appellees’ speculation that Appellant Cody Barack’s election results cannot be supported

by evidence. Appellees filed a reply three days later.

{¶8} On September 14, 2022, the trial court granted Appellees’ second motion

for summary judgment following a hearing.7 Appellants filed this appeal, Case No. 22 BE

0051, and raise one assignment of error.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED BY IGNORING THE INJURY CAUSED BY

THE UNLAWFUL SPECIAL MEETING NOTICE.

7 At the hearing, it was revealed that the record date was October 31, 2016 (9/14/2022 Hearing Tr., p. 5);

Appellant Cody Barack had no deposits at the Bank (Id.); voting took place in January 2017 (Id. at p. 6); in

order to be a director, you have to be a depositor (Id. at p. 7); Appellant Cody Barack does not qualify and

did not have enough votes regardless (Id. at p. 8-12); everybody agrees the newspaper made a mistake

(Id. at p. 15-16); and Appellants stressed there are other plaintiffs besides Cody Barack with other claims

(Id. at p. 19), the Special Meeting was improperly noticed (Id. at p. 27), and the amendment weakened

Appellants’ voting power (Id.).

Case No. 22 BE 0051

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{¶9} In their sole assignment of error, Appellants argue the trial court erred in

granting Appellees’ second motion for summary judgment. Appellants contend the trial

court’s failure to adequately consider the unlawful Special Meeting notice unjustly harmed

them. (11/21/2022 Appellants’ Brief, p. 3). Appellants request this court “reverse the trial

court’s September 14, 2022 decision granting summary judgment, declare that the notice

of the Special Meeting was unlawful, declare that the vote-limiting amendment is null and

void, and declare that any other action taken at said meeting is null and void.” (Emphasis

sic) (Id. at p. 8).

{¶10} Appellees, on the other hand, contend Appellants were not harmed by their

failure to receive proper notice of the Special Meeting through no fault of the Bank;

Appellant Cody Barack was not eligible to run as a candidate for Director under either the

Old By-Laws or the New By-Laws, and even if eligible, he would not have been elected

at the January 18, 2017 Annual Meeting; and a “re-do” of the Special Meeting would not

result in any change to the position of the parties. (12/8/2022 Appellees’ Brief, p. 9).

Thus, Appellees assert summary judgment in their favor is proper.

An appellate court conducts a de novo review of a trial court’s decision to

grant summary judgment, using the same standards as the trial court set

forth in Civ.R. 56(C). Grafton v. Ohio Edison Co., 77 Ohio St.3d 102, 105,

671 N.E.2d 241 (1996). Before summary judgment can be granted, the trial

court must determine that: (1) no genuine issue as to any material fact

remains to be litigated, (2) the moving party is entitled to judgment as a

matter of law, (3) it appears from the evidence that reasonable minds can

come to but one conclusion, and viewing the evidence most favorably in

favor of the party against whom the motion for summary judgment is made,

the conclusion is adverse to that party. Temple v. Wean United, Inc., 50

Ohio St.2d 317, 327, 364 N.E.2d 267 (1977). Whether a fact is “material”

depends on the substantive law of the claim being litigated. Hoyt, Inc. v.

Gordon & Assoc., Inc., 104 Ohio App.3d 598, 603, 662 N.E.2d 1088 (8th

Dist.1995).

Case No. 22 BE 0051

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“(T)he moving party bears the initial responsibility of informing the trial court

of the basis for the motion, and identifying those portions of the record which

demonstrate the absence of a genuine issue of fact on a material element

of the nonmoving party’s claim.” (Emphasis deleted.) Dresher v. Burt, 75

Ohio St.3d 280, 296, 662 N.E.2d 264 (1996). If the moving party carries its

burden, the nonmoving party has a reciprocal burden of setting forth specific

facts showing that there is a genuine issue for trial. Id. at 293, 662 N.E.2d

264. In other words, when presented with a properly supported motion for

summary judgment, the nonmoving party must produce some evidence to

suggest that a reasonable factfinder could rule in that party’s favor. Brewer

v. Cleveland Bd. of Edn., 122 Ohio App.3d 378, 386, 701 N.E.2d 1023 (8th

Dist.1997).

The evidentiary materials to support a motion for summary judgment are

listed in Civ.R. 56(C) and include the pleadings, depositions, answers to

interrogatories, written admissions, affidavits, transcripts of evidence, and

written stipulations of fact that have been filed in the case. In resolving the

motion, the court views the evidence in a light most favorable to the

nonmoving party. Temple, 50 Ohio St.2d at 327, 364 N.E.2d 267.

Doe v. Skaggs, 7th Dist. Belmont No. 18 BE 0005, 2018-Ohio-5402, ¶ 10-12.

{¶11} Regarding the Special Meeting, Ohio law and Article 5, Section 4 of the

Bank’s constitution require written notice. See R.C. 1701.41, “Notice of meetings.” The

record reveals Appellees did not act negligently or in bad faith when they attempted to

publish proper notice of the Special Meeting in accordance with Ohio law and the Bank’s

Charter and By-Laws. The Bank itself did not do any act that caused direct harm to

Appellants. The Bank properly requested and paid The Times Leader to publish written

notice of the Special Meeting. The Times Leader verified that the notice was published

in accordance with the Bank’s directions and By-Laws. While the notice was not in line

with the three week requirement of the Charter and By-Laws, through no fault of the Bank,

the actions taken at the Special Meeting were proper and the Amendments were

Case No. 22 BE 0051

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approved by the Ohio Department of Commerce, Division of Financial Institutions, on

January 5, 2017.

{¶12} Appellants Roger Barack, Lana Barack, and Heinlein, took no action until

the filing of their complaint on September 14, 2020, four years after the Special Meeting.

Appellants also never pursued a claim against The Times Leader. Appellant Cody

Barack, a non-member at the time and therefore not entitled to any notice of any meeting,

was the only plaintiff that challenged the Bank’s action by complaint to the Ohio

Department of Commerce. As stated, that action was dismissed. The trial court properly

determined that Appellant Cody Barack has no standing to challenge any action with

respect to the Bank. (9/23/2022 Summary Judgment Entry, p. 10); Fed. Home Loan

Mortg. Corp. v. Schwartzwald, 134 Ohio St.3d 13, 2012-Ohio-5017, ¶ 22.

{¶13} It is Appellants’ position that they “would have enjoyed a much stronger,

well-earned voting position,” if the Special Meeting had been properly noticed and that

Appellees acted intentionally to dilute Appellants’ voting power. (9/14/2020 Complaint, p.

6, ¶ 35). Appellants, however, fail to identify any evidence of actual injury and/or evidence

that the outcome of the vote at the Special Meeting would have been different if they had

received proper notice of the Special Meeting. Stated differently, Appellants cannot show

that the outcome would have been different but for The Times Leader’s publication error.

Even if Appellants had been in attendance, the Amendment would have passed. Thus,

Appellants have not demonstrated a cognizable claim that presents an actual

controversy. See Fortner v. Thomas, 22 Ohio St.2d 13, 14 (1970) (“It has been long and

well established that it is the duty of every judicial tribunal to decide actual controversies

between parties legitimately affected by specific facts and to render judgments which can

be carried into effect.”)

{¶14} Appellants further posit that but for the Amendment passed at the Special

Meeting, Appellant Cody Barack would have been elected to the Board at the Annual

Meeting. As addressed, however, the record is clear that Appellant Cody Barack was not

qualified and could not have been elected as a Director at the Annual Meeting and that

the results of the Election of Directors was unaffected by the Special Meeting and New

Amendment.

Case No. 22 BE 0051

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{¶15} Upon consideration, the trial court did not err in granting Appellees’ second

motion for summary judgment.

CONCLUSION

{¶16} For the foregoing reasons, Appellants’ sole assignment of error is not well-

taken. The September 14, 2022 judgment of the Belmont County Court of Common Pleas

granting Appellees’ second motion for summary judgment following this court’s reversal

and remand in Barack, supra, is affirmed.

Robb, J., concurs.

Hanni, J.,concurs.

Case No. 22 BE 0051

[Cite as Barack v. Belmont Savs. Bank, 2023-Ohio-1679.]

For the reasons stated in the Opinion rendered herein, the assignment of error

is overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs to be taxed against

the Appellants.

A certified copy of this opinion and judgment entry shall constitute the mandate

in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

a certified copy be sent by the clerk to the trial court to carry this judgment into

execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.