Board of Education of the Miami Trace Local School District v. Marting

185 N.E.2d 583, 88 Ohio Law. Abs. 453, 1961 Ohio Misc. LEXIS 278
CourtFayette County Court of Common Pleas
DecidedFebruary 15, 1961
DocketNo. 22771
StatusPublished
Cited by6 cases

This text of 185 N.E.2d 583 (Board of Education of the Miami Trace Local School District v. Marting) is published on Counsel Stack Legal Research, covering Fayette County Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Board of Education of the Miami Trace Local School District v. Marting, 185 N.E.2d 583, 88 Ohio Law. Abs. 453, 1961 Ohio Misc. LEXIS 278 (Ohio Super. Ct. 1961).

Opinion

Leis, J.

Taylor Groff, J. Herbert Perrill, Gordon Cowdery, [458]*458Robert T. Owens, Richard S. Snyder and Senath Thompson are members of the Board of Education of the Miami Trace Local School District, Fayette County, Ohio (Washington Court House) which Board is a body corporate and politic. Senath Thompson is clerk of the Board.

In this Opinion the individual members of the Board will be referred to by name, and the Miami Trace Local School District Board will be referred to as the “Board.”

The Board submitted to the electorate in its district at the regular election on November 6, 1956, the question of a bond issue and a levy of a tax to pay it. The issue and levy were approved by the voters. In the first half of the year 1958 the Board advertised the bonds for sale to underwriters. The ad stated that an approving legal opinion will be furnished to the successful bidder. The advertisement set July 10, 1958, as the time for opening the bids, at twelve o ’clock noon. The successful bidder for the bond issue was the J. A. White & Company and others.

On the same date as the bids were opened, namely, July 10, 1958, the defendant herein, Sam B. Marting, through his attorneys, Paul A. Griffith and C. William Malone, also defendants herein, instituted an action in the Court of Common Pleas, Fayette County, Ohio (Case No. 22505), against individuals, namely, Taylor Groff, J. Herbert Perrill, Gordon Cowdery, Robert T. Owens, Richard S. Snyder and Senath Thompson, all of whom are members of the Board, and service of process was accomplished on the named parties-defendant.

The Board joined in a motion filed in the Court of Common Pleas, Fayette County, Ohio; in respect to the above case as follows:

1. That the Board of Education of the Miami Trace Local School District, Fayette County, Ohio, be made a party defendant in this action on the ground that it is the real party in interest and a necessary party to the determination of the action.
2. That defendant, Taylor Groff, J. Herbert Perrill, Gordon Cowdery, Robert T. Owens and Richard S. Snyder, be dismissed as parties defendant on the ground that they are not proper parties to this action.
3. To strike the petition from the files as a sham and frivo[459]*459lous pleading, raising no material questions and no real issue for the Court to decide, and not filed in good faith but solely for the purpose of delay; and in the alternative to strike each separate cause of action on the same ground.

The trial court sustained each branch of the motion: first, the Court ordered the Board to be made a party defendant; secondly, the Court dismissed the individual members of the Board as parties defendant and, in addition, on its own motion the Court found that Senath Thompson is not a proper party defendant to the cause and dismissed him and, thirdly, ordered tlxe “Plaintiff’s petition stricken as a frivolous, vexatious and sham pleading, and that plaintiff’s action be, and hereby plaintiff’s action is dismissed with prejudice to any further action * * Marting v. Groff et al., 82 Ohio Law Abs., 202 at p. 212.

The plaintiff Marting appealed to the Ohio Court of Appeals, Second District, Fayette County, Ohio. The appeal was based on questions of law from the order and judgment of the Court of Common Pleas, Fayette County, Ohio, sustaining a xixotion of the Miami Trace Local School District, and dismissing plaintiff’s petition. The Court of Appeals unanimously affirmed the decision of the trial court, stating:

“we do not find that the Court has abused its inherent power in the case before us and its judgment will therefore be affirmed.” Marting v. Groff et al., 82 Ohio Law Abs., 212.

The affirmation of the trial court’s decision by the Court of Appeals was further appealed to the Ohio Supreme Court under the caption Marting v. Groff et al,” as “Case No. 36130” on a motion to certify the record, filed July 27, 1959. On October 7, 1959, the motion to certify the record was overruled by the Supreme Court.

On November 19, 1959, the Board and Taylor Groff, J. Herbert Perrill, Gordon Cowdery, Robert T. Owens and Richard A. Snyder, members of the Board, as plaintiffs, jointly filed a petition in the Court of Common Pleas, Fayette County, Ohio, against Sam B. Marting, Paul A. Griffith and C. William Malone, as co-defendants, in an action sounding in malicious prosecution. The plaintiffs pray for “compensatory and exemplary damages, plus reasonable attorney fees in the sum of $494,581.99, ■ and such other and further relief as may be proper in law or in equity.”

[460]*460This cause is presently before the Court on motions, one filed by defendant Sam B. Marting and including therein twenty-four branches, and the other motion filed jointly by defendants Paul A. Griffith and C. William Malone, and including therein twenty-five branches.

The Court will consider these motions together, as generally they attack the plaintiff’s petition on the same subject matters.

The plaintiffs in their petition allege the facts as stated in the first three paragraphs of this Opinion, and then allege:

“* * * said action * * * (namely the action by Sam Marting to enjoin the sale and delivery of the bonds) * * * was commenced by the defendants and prosecuted by said defendants against the plaintiffs, wrongfully and maliciously and without probable cause, with a malicious intent, unjustly to vex, trouble, harass these plaintiffs, and in particular to wrongfully prevent the plaintiff Board from issuing said bonds.”
‘ ‘ The defendants maliciously, wrongfully and without probable cause, by so filing such action and issuing process thereon, did prevent the consummation of the sale of the bonds.”

The petition then alleges a custom of the trade of municipal bond buyers wherein a Non-Litigation Certificate is demanded by the buyer from the seller of the bonds to the effect that no litigation is pending questioning the validity of the bond issue. The litigation which the defendants commenced was stricken from the file as a sham and frivolous pleading, and the issue never came to a trial.

The balance of the allegations in the petition cover the subjects of use of the bond issue, and damages sustained as a result of the alleged malicious prosecution.

Defendant Marting, in the first branch of his motion, moves the Court to dismiss plaintiffs Taylor Groff, J. Herbert Per-rill, Gordon Cowdery, Robert T. Owens and Richard S. Snyder as parties plaintiff contending that these individuals, who are members of the Board, are not proper parties plaintiff. Defendants Paul A. Griffith and C. William Malone raise this question on the second branch of their motion.

If the Court finds these individuals are proper parties plaintiff, then the defendants join in requesting the Court to order the individual plaintiffs “to make the petition definite and certain by stating what interests they have as members of [461]*461said Board which has been impaired or damaged by the defendant, and which is different than that of the plaintiff Board.”

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Bluebook (online)
185 N.E.2d 583, 88 Ohio Law. Abs. 453, 1961 Ohio Misc. LEXIS 278, Counsel Stack Legal Research, https://law.counselstack.com/opinion/board-of-education-of-the-miami-trace-local-school-district-v-marting-ohctcomplfayett-1961.