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the foundation his conditional letter of resignation as a
director of the foundation.
On December 15, 1995, petitioner's board of directors voted
to transfer ownership of petitioner to Dr. Tully.
OPINION
Respondent, pursuant to Rule 53, has moved to dismiss this
case for lack of jurisdiction on the ground that the petition for
declaratory judgment was filed by a person not authorized to
institute suit on behalf of petitioner. Respondent contends the
following: On May 2, 1996, Dr. Tully filed a petition on behalf
of petitioner and signed the petition as its vice president; Dr.
Tully had resigned from the board of directors and as a trustee
of petitioner as of October 13, 1995; and, therefore, Dr. Tully
is not authorized to institute suit on behalf of petitioner.
Petitioner answers the following: Dr. Tully has been an
officer and director of petitioner at all times since its
inception; in October 1995, Dr. Tully offered to resign from his
position as a director of petitioner if petitioner was approved
as a tax-exempt organization by the IRS; Dr. Tully submitted a
conditional letter of resignation to petitioner's board of
directors but never resigned; on or about December 15, 1995, all
rights in petitioner were transferred to Dr. Tully; and,
therefore, Dr. Tully is a proper person to bring this action.
The burden of proof is upon petitioner to establish that it meets
the jurisdictional requirements of section 7428. Rule 217(c);
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Last modified: May 25, 2011