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WEST v. MORRIS

May 28, 1998

JOHN WEST, APPELLANT,
V.
FRED D. MORRIS, SR., ET AL., APPELLEES.



APPEAL FROM THE SUPERIOR COURT, ELLEN SEGAL HUVELLE, J. [711 A2d Page 1270]

Before Schwelb, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge:

John West alleged in his pro se complaint, filed on August 31, 1995, that the defendants, including the Temple Church of God in Christ, a non-profit corporation, and several church officials and related entities, failed to provide proper notice of a business meeting of the church at which one of the defendants, Fred D. Morris, Sr., was elected as pastor. West claimed that he was entitled to such notice pursuant to Section 15 of the District of Columbia Nonprofit Corporation Act (DCNCA), D.C.Code § 29-515 (1996). West sought an award of damages, a new election, and an order directing Morris to return all moneys that had been paid to him as pastor.

Shortly after the complaint was filed, all of the defendants except for Morris moved to dismiss the action for failure to state a claim upon which relief may be granted. On November 14, 1995, in a 5-page written order, the trial judge dismissed the complaint as to the moving defendants. Believing the motion to be unopposed, the judge held that dismissal was required because West had failed to allege in his complaint that he was a bona fide member of the church. *fn1 She also held that the designation of Morris as pastor was protected from judicial intervention by the First Amendment. [711 A2d Page 1271]

On November 24, 1995, West filed a notice of appeal from the order of November 14, contending that the complaint was erroneously dismissed. *fn2 We affirm.

I.

At the time West filed his appeal, this court lacked jurisdiction to entertain it. "[S]ubject to limited exceptions not applicable here, [D.C.Code § 11-721 (1995)] bars an appeal unless the order appealed from disposes of all issues in the case; it must be final as to all the parties, the whole subject matter, and all of the causes of action involved." Davis v. Davis, 663 A.2d 499, 503 (D.C. 1995) (citation and internal quotation marks omitted). "In the absence of the requisite determination and direction under [Super. Ct. Civ. R.] 54(b), an order disposing of claims against fewer than all of the parties is not appealable." Dyhouse v. Baylor, 455 A.2d 900, 901 (D.C. 1983) (per curiam). An order is final only if it "dispose[s] of the whole case on its merits so that the court has nothing remaining to do but to execute the judgment or decree already rendered." Camalier & Buckley, Inc. v. Sandoz & Lamberton, Inc., 667 A.2d 822, 825 (D.C. 1995) (citation and internal quotation marks omitted).

Although the trial judge's reasoning in her order of November 14, 1995 applied logically to West's claims against all of the defendants, one of those defendants — Fred D. Morris, Sr. — remained in the case. The order of November 14, 1995 did not dispose of the entire litigation, and at the time the notice of appeal was filed, the appeal was subject to dismissal as premature.

In this case, however, as in Robinson v. Howard Univ., 455 A.2d 1363, 1366 n. 1 (D.C. 1983), "by the time the appeal was submitted to this panel, it was final." This is so because, on March 7, 1996, the complaint was dismissed against Morris, the only remaining defendant. Accordingly, this court has jurisdiction of the appeal from the November 14, 1995 order "even though the appeal was technically premature." Id.; see also Dyer v. William S. Bergman & Assocs., Inc., 635 A.2d 1285, 1287 (D.C. 1993).

II.

In granting defendants' motions to dismiss, the trial judge correctly stated:

Dismissal of a pro se complaint for failure to state a claim pursuant to Super Ct. Civ. R. 12(b)(6) is only warranted if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980) (quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)).

The judge nevertheless dismissed the complaint on the pleadings. The judge pointed out that the defendant church was incorporated under the DCNCA, which defines a member as "one having membership rights in a corporation in accordance with the provisions of its articles of incorporation or bylaws." D.C.Code § 29-502(6). The complaint was deficient, according to the judge, because

Plaintiff has failed to assert that he is a bona fide member of the defendant Temple Church of God in Christ, Inc., and has introduced no evidence, such as "church articles of incorporation, by-laws, or rules and regulations," to define or establish membership criteria. Williams v. Board of Trustees of Mount Jezreel Baptist Church, 589 A.2d 901, 909 (D.C.[]), cert. denied, 502 U.S. 865, 112 S.Ct. 190, 116 L.Ed.2d 151 (1991). ...


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