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Gross v. A New Missouri, Inc.

Court of Appeals of Missouri, Western District, Special Division

October 22, 2019

ELAD GROSS, Appellant,
v.
A NEW MISSOURI, INC., ET AL., Respondents.

          APPEAL FROM THE CIRCUIT COURT OF COLE COUNTY, MISSOURI THE HONORABLE JON E. BEETEM, JUDGE

          Before: Gary D. Witt, Presiding Judge, Edward R. Ardini, Jr., Judge and Thomas N. Chapman, Judge

          EDWARD R. ARDINI, JR., JUDGE

         Elad Gross appeals a judgment of the Circuit Court of Cole County dismissing his Amended Petition with prejudice. Gross brought this action under Missouri's Nonprofit Corporation Act[1] against A New Missouri, Inc. ("A New Missouri"), Michael G. Adams, Robin Simpson, and Jeff Stuerman (collectively, "Defendants") requesting the trial court order the Defendants to produce to him certain records of A New Missouri. Defendants filed a motion to dismiss for failure to state a claim, asserting that Gross failed to plead facts that would entitle him to relief. The trial court granted Defendants' motion. Finding no error, we affirm.

         Factual and Procedural Background

         A New Missouri is a nonprofit corporation with its principle place of business and registered office located in Cole County, Missouri. Individual defendants Adams, Simpson, and Stuerman are officers of A New Missouri. According to its Articles of Incorporation, A New Missouri was formed "for the purpose of conducting activities allowed pursuant to the Act, including, but not limited to, the advancement of social welfare by promoting ideas, policies and/or legislation to create more jobs, higher pay, safer streets, better schools, and more, for all Missourians." The Articles of Incorporation also provide that A New Missouri is a "public benefit corporation"[2] and has no members.

         On June 2 and June 5, 2018, Gross sent A New Missouri written requests to inspect and copy the following records[3]:

1)All minutes of all meetings of [A New Missouri's] board of directors;
2) All records of all actions taken by [A New Missouri's] directors without a meeting;
3) All records of all actions taken by committees of [A New Missouri's] board of directors;
4) All accounting records;
5) All of the corporation's bylaws, restated bylaws, and amendments to its bylaws;
6) A list of the names and business or home addresses of [A New Missouri's] current directors and officers;
7) All financial statements of all income and expenses of the corporation.

         Gross listed three purposes for his records request: 1) to determine whether A New Missouri acted improperly under Missouri law, including whether A New Missouri violated Missouri's Merchandising Practices Act; 2) to see increased transparency in the government; and 3) to determine whether to lodge a complaint against A New Missouri with the Internal Revenue Service. Gross requested that A New Missouri respond within five business days. On June 7, 2018, Gross sent his records request to counsel for A New Missouri and on June 12, 2018, Gross sent the request to Adams, Simpson, and Stuerman. None of the defendants responded to Gross's requests.[4]

         On June 22, 2018, Gross initiated this action by filing a petition with the trial court. The following day, he filed an Amended Petition which corrected typographical errors, but otherwise remained substantively consistent with the original petition. In the Amended Petition, Gross alleged that he "is a Missourian and is therefore a beneficiary of Defendant A New Missouri, Inc. according to RSMo. § 355.826.6."[5] Gross asserted that as a beneficiary, he "is entitled to inspect and copy Defendant A New Missouri, Inc.'s records" and that A New Missouri violated "Missouri ...


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