Ahn v. Lee

471 S.E.2d 38, 221 Ga. App. 247, 96 Fulton County D. Rep. 1845, 1996 Ga. App. LEXIS 439

• Court: Court of Appeals of Georgia
• Decided: May 2, 1996
• Docket: A96A0539
• Status: Published

Opinions

McMurray, Presiding Judge.

This is a declaratory judgment action brought to determine which of two groups is the duly constituted board of directors authorized to govern the affairs of a non-profit corporation known as “Our Firm Foundation For Koreans, Inc.,” which apparently operates a Christian church. The articles of incorporation designate, as the initial board of directors, Byung Kook Kang, Moon Sik Kwon, Chong Cheol Lee, Clinton Kim, and Andrew Ahn. On March 10, 1993, Kang purported to orally resign from the board of directors and the minutes of a board meeting of that date reflect the acceptance of that resignation. At that time, Clinton Kim and Moon Sik Kwon had not been involved in the corporation’s affairs for some time. On March 18, 1993, the two remaining active members of the board of directors, Chong Cheol Lee and Andrew Ahn, held a meeting at which Jong Chul Bae, Jin Oh Kim, and Kuk Joo Ahn were elected to fill the apparent vacancies on the five member board of directors. On June 21, 1993, at a board of directors meeting called by Kang and Lee, the number of members on the board of directors was increased to nine members: Andrew Ahn, Jong Chul Bae, Jin Oh Kim, Kuk Joo Ahn, Chong Cheol Lee, Byung Kook Kang, In Mo Chung, Young He Lee, and Sung Bok Seo. It should be noted that several individuals are members of both the March 18 and the June 21 boards of directors.

Plaintiffs Andrew Ahn, Jong Chul Bae, Jin Oh Kim, and Kuk Joo Ahn are plaintiffs who allege that the March 18 board of directors is entitled to control of the corporation. Defendants Chong Cheol Lee, Byung Kook Kang, In Mo Chung, Young He Lee, and Sung Bok Seo maintain that the oral resignation of Byung Kook Kang was legally insufficient and void, so that he remained a member of the board of directors, and that since Kang did not receive notice of the March 18, 1993 meeting of the board of directors the actions taken in that meeting including the election of three of the plaintiffs to the board of directors was a nullity. Defendants further maintain that the board of directors meeting of June 21, 1993 was legal and proper in all respects. The superior court adopted the substance of defendants’ argument and granted summary judgment in favor of defendants and against plaintiffs. Held:

We reverse since the analysis by which it was determined that Byung Kook Kang remained a member of the board of directors despite the purported oral resignation is equally applicable to Moon Sik Kwon and Clinton Kim. These three individuals, along with Andrew Ahn and Chong Cheol Lee, were named as directors in the articles of incorporation of the corporation. Such designated directors may resign in writing pursuant to OCGA § 14-3-807 or may be removed pursuant to OCGA § 14-3-809. Since there has apparently been no compliance with the requirements of either of these statutes as to any of these individuals, they all remain directors of the corporation. This was recognized by the superior court with regard to Byung Kook Kang, but not as to the two remaining individuals, Moon Sik Kwon and Clinton Kim, perhaps due to their long absence from an active role in the affairs of the corporation. It follows that defendants have not been shown to comprise the lawful board of directors of the corporation and that the superior court erred in granting defendants’ motion for summary judgment.

Defendants’ “Motion for Imposition of Penalty” for frivolous appeal by plaintiffs is denied.

Judgment reversed.

Johnson, J., concurs. Ruffin, J., concurs specially.