NAILAH K. BYRD CUYAHOGA COUNTY CLERK OF COURTS 1200 Ontario Street Cleveland, Ohio 44113 Court of Common Pleas New Case Electronically Filed: May 30,2019 11:21 By: PETER G. PATTAKOS 0082884 Confirmation Nbr. 1723534 CHRISTEEN TUTTLE, ET AL CV 19 916042 vs. Judge: NANCY MARGARET RUSSO TIM COLLINS, ET AL Pages Filed: 65 Electronically Filed 05/30/2019 11:21 / / CV 19 916042 / Confirmation Nbr. 1723534 / CLJSZ IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO CHRISTEEN TUTTLE, on behalf of DUNHAM TAVERN MUSEUM 2543 Derbyshire Road Case No. Cleveland Heights, Ohio 44106 Judge RICHARD PARKE, on behalf of DUNHAM TAVERN MUSEUM Verified Complaint with Jury Demand 18829 Fairmount Boulevard Shaker Heights, Ohio 44118 DR. TED PETERSON, on behalf of DUNHAM TAVERN MUSEUM 10440 Wye Road Chesterland, Ohio 44026 Plaintiffs, v. TIM COLLINS c/o Dunham Tavern Museum 6709 Euclid Avenue Cleveland, Ohio 44103 DAVID WAGNER c/o Dunham Tavern Museum 6709 Euclid Avenue Cleveland, Ohio 44103 Defendants, And DUNHAM TAVERN MUSEUM 6709 Euclid Avenue Cleveland, Ohio 44103 Nominal Defendant. I. Introduction 1. The Dunham Tavern Museum (“DTM”) was once a stagecoach stop in Cleveland, Ohio on the road between Buffalo, New York and Detroit, Michigan. Today it is the oldest building still Electronically Filed 05/30/2019 11:21 / / CV 19 916042 / Confirmation Nbr. 1723534 / CLJSZ standing on its original site in Cleveland, a designated Cleveland Landmark listed on the National Register of Historic Places, and a museum campus designed “in stark contrast to the cityscape that surrounds it,” to “offer a glimpse of history and insight into the lifestyles of early Ohio settlers and travelers.” 2. Between 2012 and 2017, the Museum raised over $700,000 in a campaign to purchase and restore 2.28 acres of land (the “Greenspace”) that were a part of the original Dunham Tavern property, consistent with the organization’s stated mission and vision to “preserve, develop, and share historical Dunham Tavern Museum and its campus as an educational and cultural resource,” “provide an urban green space in Midtown Cleveland, and to return the Tavern to its roots by serving as a place for urban history, education, nature, and community.” 3. Shortly thereafter, Defendants Collins and Wagner, two members of the DTM board of trustees—who are also local businessmen who regularly profit from their involvement in transactions in the Cleveland real estate market—began to orchestrate the sale of the newly acquired Greenspace to the Cleveland Foundation, through its proxy, LASSI Enterprises, LLC, for use as the site of Cleveland Foundation’s new headquarters. This sale—for which there was no apparent need or demand by the organization—was purportedly approved by a vote by the DTM board on May 14, 2019. 4. Collins, Wagner, and certain other DTM board members who voted to approve the transaction stand to profit personally and financially from the proposed sale. Thus, their involvement in the transaction renders it void under the DTM bylaws, which expressly prohibit board members from voting on matters in which they have a conflict of interest or conflict of responsibility. 5. Certain other DTM board members voted to approve the transaction despite being further ineligible to do so pursuant to the Bylaws’ requirement that all voting trustees be dues-paying members of the DTM in good standing. Electronically Filed 05/30/2019 11:21 / / CV 19 916042 / Confirmation Nbr. 1723534 / CLJSZ 6. To date, the Board has failed and refused to take corrective action on behalf of DTM despite the requests of Plaintiffs—who are DTM trustees and members—that the Board declare the proposed sale void and unenforceable under the Bylaws. 7. Thus, Plaintiffs bring this derivative action on behalf of the Dunham Tavern Museum to remedy the board’s actions, driven by the individual Defendants for their own personal financial benefit, in unlawfully authorizing the sale of the Greenspace. II. Parties 8. Derivative Plaintiff and Nominal Defendant DTM is an Ohio not-for-profit corporation organized under the laws of Ohio, located at 6709 Euclid Avenue, Cleveland, Ohio 44103, between East 69th and East 66th Streets. 9. Plaintiff Christeen Tuttle resides in Cuyahoga County, is a trustee and Second Vice President of the Board. Ms. Tuttle is now and has at all relevant times been a DTM shareholder, or, member in good standing. 10. Plaintiff Richard Parke resides in Cuyahoga County, and is now and has at all relevant times been a DTM shareholder or member in good standing. 11. Plaintiff Ted Peterson resides in Geauga County, and is now and has at all relevant times been a DTM shareholder or member in good standing. 12. Defendant Tim Collins is a trustee and President of the Board, and a DTM shareholder or member. 13. Defendant David Wagner is a trustee and a DTM shareholder or member. 14. Through their positions as DTM trustees, Defendants Collins and Wagner are in a fiduciary position with respect to the Plaintiffs, Nominal Defendant DTM, and other similarly situated DTM trustees and shareholders. III. Jurisdiction and Venue 15. Venue is proper in this Court under Civ.R.3, because the actions at issue in this Complaint Electronically Filed 05/30/2019 11:21 / / CV 19 916042 / Confirmation Nbr. 1723534 / CLJSZ occurred in Cuyahoga County, are centered in Cuyahoga County, where the DTM is located, and one or more of the Defendants, including the DTM, resides in Cuyahoga County. IV. Factual Allegations A. Between 2012 and 2017, the Dunham Tavern Museum acquired and developed adjacent land to create and preserve a greenspace in furtherance of the Museum’s stated mission and vision. 16. DTM’s Bylaws, amended and adopted in June 2016, expressly state that the mission of the organization is “to preserve, develop, and share historical Dunham Tavern Museum and its campus as an educational and cultural resource.” See Amended and Restated Organizational Bylaws, attached as Exhibit 1, Article I, Sections 5 (the “Bylaws”). 17. The Bylaws further provide that the organization’s “vision” is to “provide an urban green space in Midtown Cleveland, and to return the Tavern to its roots by serving as a place for urban history, education, nature, and community.” Id., Article I, Section 6. 18. In or about 2012, in furtherance of this mission and vision, DTM acquired 2.28 acres of adjoining urban land located at 6611 Euclid Avenue, Cleveland, Ohio 44103 (the “Greenspace”). 19. In April 2012, DTM began a capital campaign to raise money to develop the Greenspace. The new campaign was entitled “Dunham GreenSpace: A vision for the future.” See Greenspace Plan, attached as Exhibit 2. 20. DTM intended to demolish the vacant building that was then located on the Greenspace in order to bring needed park space to the surrounding Midtown neighborhood. In accordance with the DTM mission and vision, the Greenspace Plan aimed to “reacquire the original Dunham family property and to preserve the heritage of the early settlers of the Western Reserve” as well as placing the DTM “into an historically appropriate context.” Ex. 2. 21. By 2017, DTM had raised over $700,000 toward the Greenspace project and had made improvements to the land, including constructing a new stone wall, building a new gathering space and patio, planting trees, and making improvements to the existing landscape. See “GreenSpace Electronically Filed 05/30/2019 11:21 / / CV 19 916042 / Confirmation Nbr. 1723534 / CLJSZ Progress: Preserve ... Develop ... Share,” attached as Exhibit 3. B. Defendants Collins and Wagner entered into discussions with the Cleveland Foundation to sell the greenspace without any need to do so, without opening the process to competitive bidding, and despite the obvious conflict with DTM's mission and vision as embodied by the plan to acquire the greenspace in the first place. 22. Unbeknownst to Plaintiff Tuttle and other board members, Defendants Collins and Wagner, in 2017 or 2018 began to engage in secret discussions with the Cleveland Foundation, concerning the sale of the Greenspace, for the location of the Cleveland Foundation’s new headquarters (the “proposed sale”). 23. Defendant Wagner and William Nice, the husband of DTM board member Laurie Nice, who, like Wagner, is a Hanna Commercial Real Estate Co. member and managing director, shortly produced, in 2018, an appraisal of DTM real estate, including the Greenspace. This appraisal acknowledged the “historic, priceless” character of the DTM site, while assigning a value to it that served as a basis for the purchase price in the proposed sale. 24. The discussions over the proposed sale were initiated without any need by the organization and without any call by the organization’s trustees or board members, apart from Collins and Wagner, to engage in such a transaction. 25. In proceeding with the proposed sale, which was purportedly approved on May 14, 2019 by a vote of the DTM board, as described below, Collins, Wagner, and the board did not obtain any additional appraisals of the property, nor did Collins, Wagner, or the board ever attempt to seek competitive bids for the Greenspace. The DTM board was not advised of the contemplated transaction until December 11, 2018, and its membership was not formally notified until April 24, 2019. 26. As news of the proposed sale leaked public, the board received a wave of negative feedback from DTM membership, including written notification from dozens of members and donors as to their disillusionment with the process, and their intent to cancel or withhold future donations to the Electronically Filed 05/30/2019 11:21 / / CV 19 916042 / Confirmation Nbr. 1723534 / CLJSZ DTM, in the amounts of “multiple millions of dollars,” as a result. See, eg, Exhibit 4, March 1, 2019 letter from 26 DTM members and donors to the DTM board.