Pursuant to Ind.Appellate Rule 65(D),

this Memorandum Decision shall not be 

regarded as precedent or cited before 

any court except for the purpose of 

establishing the defense of res judicata, 

collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE:

MICHAEL A. BEASON THOMAS M. CONNOR

Christopher & Taylor Dinsmore & Shore, LLP

Indianapolis, Indiana Cincinnati, Ohio

IN THE

COURT OF APPEALS OF INDIANA

ALAN R. KOHLHAAS, on behalf of himself and )

all others similarly situated, )

)

Appellant-Petitioner, )

)

vs. )

) No. 15A01-1308-PL-357

HIDDEN VALLEY LAKE PROPERTY )

OWNERS ASSOCIATION, INC., and )

ROBERT A. WILL, WILLIAM ACRA, )

CARL ADKINS, MARK HEMMERLE, and )

JOHN FRUIN, individually and as Owners )

Association, Inc., )

)

Appellee-Respondents. )

APPEAL FROM THE DEARBORN CIRCUIT COURT

The Honorable Ted R. Todd, Special Judge

Cause No. 15C01-0502-PL-009

July 15, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge
2

Dr. Alan Kohlhaas appeals the trial court’s grant of summary judgment to Hidden 

Valley Lake Property Owners Association, Inc. (the “POA”), and its members of the Board 

of Directors including Robert Will, William Acra, Carl Adkins, Mark Hemmerle, and John 

Fruin (collectively with the POA, the “Defendants”). Dr. Kohlhaas raises three issues which 

we revise and restate as:

I. Whether the trial court erred in granting summary judgment in favor of 

the Defendants;

II. Whether the trial court erred when it denied Dr. Kohlhaas’s motion for 

class certification; and

III. Whether Dr. Kohlhaas’s complaint states sufficient damages.

We affirm.

FACTS AND PROCEDURAL HISTORY

The POA is a non-profit property owners association for a private residential lake 

community in Dearborn County, Indiana. Robert Will, William Acra, Carl Adkins, Mark 

Hemmerle, and John Fruin are or were property owners and residents in the Hidden Valley 

community and volunteer members of the Board of the POA. Dr. Kohlhaas is a property 

owner and resident of the Hidden Valley community. The POA owns a swimming pool, 

seventy-seven acres of play fields, a restaurant, a community center, a maintenance area, 

several small fishing lakes, parks, roads, and many acres of green space. The operations of 

Hidden Valley and the conduct of its residents are governed by the Articles of Incorporation, 

the Bylaws, the Restrictions, Conditions, Covenants and Agreements, and the Rules and 

Regulations. 
3

The POA Handbook contains a section titled “HIDDEN VALLEY LAKE 

PROPERTY OWNERS ASSOCIATION BUILDING CODE AND RESTRICTIONS For 

Dwelling Houses-Single Family Residences.” Appellant’s Appendix at 131. This section 

states that “[d]ocks may not extend into the lake more than eight (8) feet” and 

“[r]etaining/sea walls should be built of natural materials or concrete.” Id. at 133. 

On June 19, 2003, Eric Rabenold, a Hidden Valley resident and long-time member of 

the Lakes committee at Hidden Valley, wrote to the POA Board of Directors noting that the 

existing docks at the POA beach were rarely if ever used because the water in front of the 

docks was extremely shallow and had many large rocks. Rabenold recommended that a new 

dock extend out at least twenty feet in order to safely allow boats to pull up to them and load 

passengers safely. An attachment to the letter included some pros and cons and the potential 

cons included that the proposed dock would extend further into the lake than the eight feet 

that was permitted for private docks at Hidden Valley. The POA already owned several 

docks that extended beyond eight feet into the lake. 

On August 28, 2003, the POA Board approved a request by the Wintz family for the 

construction of a seawall at the shoreline bordering lot #1626. The seawall was to be 

constructed out of a solid plastic material that attached to the ground with galvanized steel 

and was designed with a “dental” configuration to break up waves to stop shoreline erosion 

and prevent splashing and waves from being driven back into the lake from the lot which was 

near a high speed boating area. Id. at 59. The new type of seawall was viewed by the Board 

as a test case for a promising new material and design. The Board determined that the 
4

proposed seawall would be much better looking and more appealing than the array of various 

seawalls then in existence. The Board approved the motion conditioned on the POA having 

the authority to remove the wall at any time so that the Board could assess whether the new 

type of seawall actually performed better than natural materials, and that the seawall would in 

no way set precedent for other such projects on the lake. On September 23, 2003, a letter 

was sent to the Wintz family advising them of the approval and of the conditions the Board 

had placed on the approval. At some point, the seawall was constructed.

On January 22, 2004, the Board voted to authorize the expenditure for the project to 

install a dock at the POA beach in roughly the manner proposed in Rabenold’s letter. The 

Board decided to authorize the construction of the beach dock for a variety of reasons 

including improving access for handicapped persons, allowing multiple boats to use the dock 

at once, and improving access for ski boats that were impeded by rocks in the water. 

On November 23, 2004, Dr. Kohlhaas asked the Board to reconsider its approval of 

the dock. Will explained that “based on the Lakes Committee recommendation of the layout 

of the dock, the majority agreed that the perpendicular dock, while it extended out more than 

eight feet, [] allowed more residents to utilize the dock facilities” and asked that Dr. 

Kohlhaas “keep in mind that rules are for members, and this is a POA dock and the POA has 

leeway because all individuals use these docks.” Id. That same day, Dr. Kohlhaas asked the 

Board to reconsider its approval of the seawall. Adkins noted that the seawall was a 

replacement of an existing seawall. It was also noted that the Board was “looking at it as an 
5

experimental product and was specific on reviewing its durability.” Id. at 61. Will also 

noted that the seawall manufacturer provided a fifty-year guarantee. 

On January 27, 2005, Dr. Kohlhaas filed a “Complaint for Injunctive Relief or in the 

Alternative, Damages.” Id. at 285. The Complaint alleged that the Defendants allowed and 

permitted violations of the Handbook in three particular ways: (1) the dock at the beach 

extends more than eight feet from the shoreline out into the lake; (2) the seawall was 

constructed in front of Lot 1626 Knollwood and extended beyond the lot owner’s property; 

and (3) the seawall is constructed of non-approved materials. Dr. Kohlhaas alleged that none 

of these additions were approved by the Architecture Committee and that the continued 

existence of these violations impairs the value of his and other owners’ property and potential 

resale value. Dr. Kohlhaas alleged that the actions of the Board constituted gross negligence 

and willful and wanton abrogations of the duties of the Board members and/or directors of 

the POA. Dr. Kohlhaas alleged that he brought the action on behalf of himself and all others 

similarly situated, and requested: (1) certification of the action as a class action; (2) 

injunctive relief against Defendants and an order for removal of the non-conforming 

structures, or in the alternative; (3) damages in an amount that would compensate the 

members of the class for the loss in value of their property; and (4) all other just and proper 

relief in the premises. 

On March 5, 2007, the Defendants filed a memorandum in opposition to Dr. 

Kohlhaas’s motion for certification of class. On October 2, 2009, the court held a hearing on 

the issue of class certification. On October 27, 2010, the court denied Dr. Kohlhaas’s motion 
6

for class certification. Specifically, the court found Dr. Kohlhaas failed to demonstrate that 

any other property owner had claimed an injury as a result of the alleged actions. The court 

stated:

For many in the proposed class it would seem their damages would be trivial. 

The legal maxim de minimus non curat lex comes to mind. In this case it is 

hard to imagine damages accruing to the vast majority of the proposed class 

that would be worth pursuing individually for either economic or sociological 

reasons.

Id. at 11. The court concluded that “the predominance and superiority elements that are 

prerequisites to a class action have not been met.” Id. at 11-12. On November 19, 2010, Dr. 

Kohlhaas filed a motion requesting that this Court accept jurisdiction of the interlocutory 

order denying class certification, which this Court denied on January 7, 2011. 

On June 10, 2013, the Defendants filed a joint motion for summary judgment. The 

Defendants asserted that summary judgment was appropriate on Dr. Kohlhaas’s claim for 

breach of restrictive covenants because Hidden Valley and its volunteer Board members were 

authorized to take the actions they took and because Dr. Kohlhaas suffered no legally 

cognizable damages. The Defendants also asserted that the Board’s actions were immunized 

by the Nonprofit Corporations Act, and summary judgment was warranted on Dr. Kohlhaas’s 

claims against those serving on the Board. On June 28, 2013, Dr. Kohlhaas filed a response 

to the Defendants’ motion for summary judgment. 

On July 25, 2013, the court held a hearing. On July 31, 2013, the court entered an 

order granting the Defendants’ motion for summary judgment. The court’s order states:

The first question for the Court to answer is whether the Defendants had

the authority to approve construction of (1) the dock or (2) the seawall that are 
7

the subject matters of this litigation. By the terms of the applicable Articles of 

Incorporation, the By-Laws, the Restrictions, Conditions, Covenants and 

Agreements, and Rules and Regulations of the Hidden Valley Lake Property 

Owners Association (“POA”) the board of directors is given broad authority to 

act on behalf of the Corporation.

As to the dock, it is first noted that this is a dock extending from POAowned real estate, not property of an individual landowner. It is available for 

use by all landowners and their guests. The only place in the controlling 

documents where a restriction of eight feet for the length of docks is 

mentioned is under the section referral [sic] to “Dwelling Houses – Single 

Family Residences”. That being so, the Court finds that objection not to apply 

to docks extending from common grounds in the Hidden Valley community.

As to the seawall, the objection is that the seawall as approved was 

made of “a solid plastic material that attached to the ground with galvanized 

steel and was designed with a ‘dental’ configuration to break up waves to stop 

shoreline erosion, prevent splashing and prevent waves from being driven back 

into the lake from a lot that was near a high speed boating area”. The 

regulations provide that seawalls, “should be built of natural materials or 

concrete”. 

The POA board approved this construction knowing it was not to “be 

build [sic] of natural materials or concrete”. Their stated reasons included it 

would “be much better looking” and more “appealing than many of the 

seawalls”. The board assessed samples of the materials and analyzed the 

guarantees the produce [sic] carried. The minutes reflect that the construction 

was conditioned on, “the POA having the authority to remove the wall at any 

time” to assess whether the new type of seawall performed better than natural 

materials. It was further stated that this seawall, “would in no way set 

precedence [sic] for other such projects on the lake”. 

At a subsequent meeting of the directors [Dr. Kohlhaas] asked the 

Board to reconsider its approval of the seawall. At that meeting it was noted 

that, as to location, the seawall was a replacement of an existing seawall. It 

was also noted that, “The board was looking at it as an experimental product 

and was specific on its renewing its durability”. It was further noted that the 

seawall manufacturer provided a fifth [sic] year guarantee. The board did not 

change its vote.

Because the restriction uses the word “should” rather than “shall” in 

setting for [sic] the condition, because the board exercised its discretion fully 
8

aware of the situation, stated good reasons for its decision, and because the 

board retained the authority to remove the wall at any time, it had the authority 

to authorize the wall’s construction.

The Court also notes that [Dr. Kohlhaas’s] arguments are based upon 

restrictive covenants. Restrictive covenants are not a favorite of the law and 

are to be strictly construed in favor of the rights of the fee simple owner of the 

land. This, coupled with power of the board to act in the best interests of its 

shareholders, makes the actions taken here as to both the dock and seawall to 

be legally appropriate. The law is with the Defendants on both issues.

The Court, having resolved the issues in favor of the Defendants, the 

issue of damages is moot. A Summary Judgment should be entered in favor of 

the Defendants.

Id. at 14-15.

DISCUSSION

The first issue is whether the trial court erred in granting summary judgment in favor 

of the Defendants. Summary judgment is appropriate only where there is no genuine issue of 

material fact and the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 

56(C); Mangold ex rel. Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 973 (Ind. 

2001). All facts and reasonable inferences drawn from those facts are construed in favor of 

the nonmovant. Mangold, 756 N.E.2d at 973. Our review of a summary judgment motion is 

limited to those materials designated to the trial court. Id. In reviewing a trial court’s ruling 

on a motion for summary judgment, we may affirm on any grounds supported by the Indiana 

Trial Rule 56 materials. Catt v. Bd. of Commr’s of Knox Cnty., 779 N.E.2d 1, 3 (Ind. 2002). 

The entry of specific findings and conclusions does not alter the nature of a summary 

judgment which is a judgment entered when there are no genuine issues of material fact to be 

resolved. Rice v. Strunk, 670 N.E.2d 1280, 1283 (Ind. 1996). In the summary judgment 
9

context, we are not bound by the trial court’s specific findings of fact and conclusions 

thereon. Id. They merely aid our review by providing us with a statement of reasons for the 

trial court’s actions. Id.

To prevail on its motion for summary judgment, the Defendants need only have 

negated one element of Dr. Kohlhaas’s claims for injunctive relief. Dible v. City of 

Lafayette, 713 N.E.2d 269, 272 (Ind. 1999). A mandatory injunction is an extraordinary 

equitable remedy which should be granted with caution. Id. The plaintiff carries the burden 

of demonstrating injury which is certain and irreparable if the injunction is denied. Id. In 

making its decision the trial court must weigh whether the plaintiff has an adequate remedy at 

law and the court must consider whether an injunction is in the public interest. Id. 

The grant or denial of an injunction lies within the sound discretion of the trial court 

and will not be overturned unless it was arbitrary or amounted to an abuse of discretion. 

Ferrell v. Dunescape Beach Club Condominiums Phase I, Inc., 751 N.E.2d 702, 712 (Ind. Ct. 

App. 2001). Generally, the trial court considers four factors in determining the propriety of 

injunctive relief: (1) whether plaintiff’s remedies at law are inadequate; (2) whether the 

plaintiff can demonstrate a reasonable likelihood of success on the merits; (3) whether the 

threatened injury to the plaintiff outweighs the threatened harm a grant of relief would 

occasion upon the defendant; and (4) whether the public interest would be disserved by 

granting relief. Id. The difference between a preliminary and a permanent injunction is 

procedural. Id. at 712-713. A preliminary injunction is issued while an action is pending, 

while a permanent injunction is issued upon a final determination. Id. at 713. Thus, when 
10

the plaintiff is seeking a permanent injunction, the second of the four traditional factors is 

slightly modified, for the issue is not whether the plaintiff has demonstrated a reasonable 

likelihood of success on the merits, but whether he has in fact succeeded on the merits. Id. 

Finally, permanent injunctions are limited to prohibiting injurious interference with rights. 

Id.

Dr. Kohlhaas argues that “[n]one of the actions of the Board included a resolution and 

affirmative vote of a majority of all the members of the Board to specifically alter or amend 

the relevant rules” and “[n]one of the Board minutes detailing the actions of the Board show 

any motions to amend or alter the rules, or any other positive actions undertaken by the Board 

to address the violations of the Rules.” Appellant’s Brief at 14-15. Dr. Kohlhaas asserts that 

“[w]hile the Articles clearly provide that the Board has the authority to alter or amend the 

Rules, those Articles also require that they must take official action to do so” and that 

“[s]imply agreeing to ignore the duly-enacted Rules is not contemplated by the Articles and is

not supported by them.” Id. at 15. He contends that “asserting that the Board is not bound by 

the By-Laws, or the Rules as Mr. Fruin did in his deposition, demonstrates that the Board 

knowingly acted in a manner contrary to the Articles.” Id. (citations omitted). Dr. Kohlhaas 

states that the Board’s “arrogation of powers contrary to the Articles and the actions of Board 

as alleged by Dr. Kohlhaas are in violation of the Articles and are, at a minimum, 

demonstrative of a question of fact mandating reversal of the court’s Order of July 31.” Id. 

The Defendants argue that the residential dock length rule does not apply to the public 

POA beach dock, that if the dock length rule does not even apply, then it could not have been 
11

breached, and with no breach, the residential dock length rule cannot form the foundation for 

a breach of contract claim. The Defendants claim that the conclusion is the same with 

respect to the seawall. 

We note that the articles of incorporation and bylaws of a non-profit corporation 

constitute a contract between the corporation and its members and among the members 

themselves. Lynn v. Windridge Co-Owners Ass’n, Inc., 743 N.E.2d 305, 313 (Ind. Ct. App. 

2001) (citing Ind. High Sch. Athletic Ass’n. v. Carlberg, 694 N.E.2d 222, 230 (Ind. 1997), 

reh’g denied), reh’g denied, trans. denied. Initially, we note that we agree with the trial 

court’s statement that the Articles of Incorporation, the Bylaws, the Restrictions, Conditions, 

Covenants and Agreements, and Rules and Regulations of the POA give broad authority to 

the POA. 

The Articles of Incorporation for the POA state:

ARTICLE II

The purposes for which the Corporation is formed are:

* * * * *

B. In accordance with the restrictions as set forth in the aforesaid 

contracts and/or deeds, to promulgate rules and regulations for the use of all 

streets, rights-of-way, common lands, parks, recreational facilities, swimming 

pools, etc., which said rules and regulations shall be binding upon all 

shareholders of this Corporation, their families, guests and invitees.

* * * * *

H. To promulgate rules and regulations controlling the construction 

of improvements on lots within Hidden Valley Lake Subdivision, as the same 

now, or hereafter exists.
12

* * * * *

ARTICLE IX

PROVISIONS FOR REGULATION AND CONDUCT OF THE AFFAIRS 

OF CORPORATION

Section 1. Other provisions, consistent with the laws of this State, for 

the regulation and conduct of the affairs of this Corporation, and creating, 

defining, limiting or regulating the powers of this corporation or the members 

shall be as from time to time set forth in the By-Laws of this Corporation, 

SUBJECT HOWEVER:

A. To any limitations or restrictions imposed by law or by

these Articles of Incorporation or by the by-laws of this 

Corporation, the Board of Directors of the Corporation is hereby 

authorized to exercise, in furtherance of the purposes of the 

Corporation, all the powers of the Corporation without prior 

authorization or subsequent approval by the members of the 

Corporation[;]

B. To the power to make, alter, amend or repeal the ByLaws and rules and regulations for the conduct of the affairs of the 

Corporation, including the power to establish officers of the 

Corporation and to elect such officers for such terms, in such 

manner and to perform such duties as it may determine in its sole 

discretion, shall be vested in the Board of Directors of the 

Corporation; Provided However that no act of the Board of 

Directors shall be inconsistent with or contradictory to these 

Articles of Incorporation or any provision of law . . . .

Appellant’s Appendix at 97-100.

The Bylaws contain the following:

The Board of Directors shall promulgate such rules and regulations as it deems 

desirable for governing the use of the facilities of said Subdivision and the 

conduct of the members of this Association, their families, guests and visitors, 

giving due regard to the recommendations of the appropriate committees. 

Such rules and regulations may be altered, amended, changed, rescinded, 

revoked or enlarged upon in whole or in part, at any time by action of the 

Board of Directors. The copy of the current rules and regulations shall at all 

times be maintained by the Secretary.
13

* * * * *

Subject to law and the Articles of Incorporation, the power to make, alter, 

amend, or repeal all or any part of this code of by-laws is vested in the board 

of directors. The affirmative vote of a majority of all the members of the 

board shall be necessary to effect any such changes in this code of by-laws.

Id. at 109 (emphases added).

The “Restrictions, Conditions, Covenants, and Agreements” state:

3. No residence shall have less than the number of square feet of 

living space as the same is designated on the recorded Plat restrictions for the 

particular lot, and in no event shall any residence have less than nine hundred 

[900] square feet of living space on the ground floor, or first floor, exclusive of 

porch area. No porch or projection of any building shall extend nearer than 

forty [40] feet to any road right-of-ways, nor nearer than ten [10] feet to the 

property line of any abutting property owner, nor nearer than fifty [50] feet 

from the normal water line of any lake located on Hidden Valley Lake 

Subdivision as the same is shown on the recorded Plats and no portion of any 

building shall be constructed at a point below the six forty-five [645] elevation.

No visual obstructions shall be closer than fifteen [15] feet to the pavement at 

any intersection. Upon appeal in specific cases the Board of Directors of 

Hidden Valley Lake Property Owners Association, Inc., may grant variance 

from the terms of this restriction which will not be contrary to law and the 

Interest of other lot owners in Hidden Valley Lake Subdivision, where owing to 

special conditions, a literal enforcement will result in unnecessary hardships, 

to the end that the spirit of this Restriction shall be observed and substantial 

justice done.

All plans and specifications for any structure or improvement to be 

erected on or moved upon or to any lot, and the proposed location thereof on 

any lot or lots, the construction material, the roofs and exterior color schemes, 

as well as all remodeling, reconstruction, alterations, or additions thereto on 

any lot shall be subject to and shall require the approval in writing of Hidden 

Valley Lake Property Owners Association, Inc., or its duly authorized agent 

before any such work is commenced. Said Association shall have the right to 

disapprove any plans, specifications or details submitted to it in the event the 

same are not in accordance with all of the provisions of these restrictions or the 

rules and regulations promulgated by said Association or when [1] the design 

or color scheme of the proposed building or other structure is not in harmony 

with the general surroundings of such lots or with the adjacent buildings or 
14

structures, [2] the plans and specifications submitted are incomplete, or [3] the 

Association deems the plans, specifications or details or any part thereof, to be 

contrary to the interest, welfare or rights of all or any of the real property 

subject hereto, or the owners thereof. The decision of the Association shall be 

final. Neither the Association, its agents nor Hidden Valley Lake, Inc., or its 

agents shall be responsible for structural deficiencies, or any other defects in 

plans or specifications submitted, revised or approved in accordance with the 

foregoing provisions.

Id. at 110 (emphasis added).

The portion of the POA Handbook in which the requirements relating to the docks and 

seawalls cited by Dr. Kohlhaas appear is titled “HIDDEN VALLEY LAKE PROPERTY 

OWNERS ASSOCIATION BUILDING CODE AND RESTRICTIONS For Dwelling 

Houses-Single Family Residences.” Id. at 131. This portion of the Handbook states:

The purpose of this code is to carry into effect the conditions, restrictions, 

covenants and agreements contained in the Contracts of Purchase and Deeds of 

Conveyances of lots in Hidden Valley Lake Subdivision, and to provide 

specific minimum standards for preserving the original nature and intent of 

Hidden Valley Lake by regulating the type and location of residential 

construction to be consistent with a residential community containing 

recreational facilities in a private, owner regulated development, and in 

conjunction with the above to include by reference the Single Family Dwelling 

Code of the Indiana Department of Fire and Building Services as the basic 

written body of construction regulations and the Dearborn County Zoning 

Ordinance #12-1980.

Id. at 26 (emphasis added). We cannot say that the POA violated any rule related to the dock 

given that such a rule applied to the individual lots and the dock in question was built on the 

POA beach.

With respect to the seawall, we observe that other provisions related to seawalls use 

mandatory language. For example, under the heading “Seawall/Shoreline Reclamation,” the 

Handbook states: “Must be approved by the Architectural Committee,” and “[t]he property 
15

line at the lakeside shall be surveyed and staked.” Id. at 133 (emphases added). The relevant 

portion of the Handbook addressing what material can be used to build seawalls states that 

“[r]etaining/sea walls should be built of natural materials or concrete.” Id. (emphasis added). 

This court has previously held that although the word “should” is more persuasive than 

“may,” it is not a mandatory word. See Turner v. Turner, 785 N.E.2d 259, 266 (Ind. Ct. App. 

2003) (citing Terpstra v. Terpstra, 588 N.E.2d 592, 595 (Ind. Ct. App. 1992)). We also 

observe that the POA Handbook states: “RULES AND FINES ARE SUBJECT TO 

CHANGE WITH HVL POA BOARD OF DIRECTORS APPROVAL.” Appellant’s 

Appendix at 117. Further, we cannot say that the language in the Articles of Incorporation, 

Bylaws, and the Handbook prohibited the Board or its members from approving the seawall 

in question. Accordingly, we affirm the trial court’s grant of the Defendants’ motion for 

summary judgment.

Because we affirm the court’s grant of summary judgment, we conclude that the issue 

regarding the petition for class certification is moot. See Rhodes v. E.I. du Pont de Nemours 

& Co., 636 F.3d 88, 97 (4th Cir. 2011) (“[A]s a result of our holding that the district court 

properly awarded summary judgment to DuPont on the above individual claims, we do not 

reach the separate issue of the timeliness of the plaintiffs’ request for class certification of 

these claims as that issue is now moot.”), cert. denied, 132 S. Ct. 499 (2011); Rifkin v. 

McDonnell Douglas Corp., 78 F.3d 1277, 1283 (8th Cir. 1996) (“Finally, the district court’s 

denial of class certification is moot as appellant’s claims fail on the merits. Accordingly, for 

the reasons discussed above, we affirm the District Court’s order granting summary judgment 
16

for McDonnell Douglas Corporation.”); Chambers v. Am. Trans Air, Inc., 17 F.3d 998, 1006 

(7th Cir. 1994) (holding that the class action certification issue was moot because the court 

affirmed the entry of summary judgment and the plaintiff could not represent a class given 

that he had no individual cause of action), reh’g and suggestion for reh’g en banc denied, 

cert. denied, 513 U.S. 1001, 115 S. Ct. 512 (1994); Forsberg v. Pac. Nw. Bell Tel. Co., 840 

F.2d 1409, 1420 (9th Cir. 1988) (“Because we affirm the summary judgment as to all 

Forsberg’s claims, any issue relating to the certification of a class of similarly situated 

plaintiffs with identical claims is moot. Hence, we need not reach either of these issues.”). 

With respect to the damages issue, we observe that Dr. Kohlhaas statesthat should this Court 

vacate the order granting summary judgment then the issues regarding damages become 

relevant. Because we affirm the trial court’s grant of summary judgment, we need not 

address the issue of damages.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s grant of summary judgment to 

the Defendants.

Affirmed.

VAIDIK, C.J., and NAJAM, J., concur.