FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-02543,
DIVISION "E" Honorable Clare Jupiter, Judge
JENKINS, J., DISSENTS WITH REASONS Val Patrick Exnicios LISKA
EXNICIOS & NUNGESSER COUNSEL FOR PLAINTIFF/APPELLANT
Richard G. Duplantier, Jr. Scott M. Raney, Sr. GALLOWAY
JOHNSON TOMPKINS BURR & SMITH COUNSEL FOR
composed of Judge Daniel L. Dysart, Judge Sandra Cabrina
Jenkins, Judge Marion F. Edwards, Pro Tempore) [*]
L. Dysart Judge
former members of the Board of Directors of the English Turn
Property Association, Inc. ("ETPOA"), appeal the
trial court's judgment dismissing their quo warranto
petition. Defendant-appellees recently filed a Motion to
Dismiss the appeal. For the reasons that follow, we deny the
Motion to Dismiss and we affirm the trial court's
AND PROCEDURAL HISTORY
March 19, 2015, the ETPOA filed a quo warranto petition, on
behalf of four of its five directors of its Board of
Directors - Val Exnicios, Jack Sutton, Dr. Bart Farris and
Sandra Tate (hereafter sometimes collectively referred to as
"plaintiffs") - all of whom are residents of the
English Turn Golf & Country Club community ("English
Turn"). The ETPOA claimed that the defendants, Scott
Taranto, Sam Morse, Glenn Orgeron, Lisa Africk and Deidra
Edwards (hereafter sometimes collectively referred to as
"defendants"), also residents of English Turn, were
"illegally and improperly attempting to assume positions
as Directors of ETPOA without authority and prior to any
election results being declared as final."
suit, the ETPOA sought a judicial determination of "the
authority, if any [by which] Defendants claim to hold
office." It alleged that, without "an accurate
count of all eligible property owners appearing in person or
valid proxy… the quorum necessary to hold and [sic]
Annual Meeting of ETPOA can not [sic] be determined."
According to the ETPOA, there was an annual meeting
"attempted to be held" on February 11, 2015. The
ETPOA alleged that "until and unless an accurate count
of all eligible property owners appearing in person or valid
proxy is determined, the quorum requirement necessary to hold
and [sic] annual meeting could not be determined." The
effect of "a lack of a quorum is that no valid business,
or any election of Directors, can be held." In that
regard, the ETPOA maintained that "many of the proxies
[for the February 11, 2015 meeting] secured by one of more of
the Defendants herein were invalid, improper and/or
improperly obtained, thus rendering them null." It
likewise maintained that a CPA, retained "to supervise
the election, count the ballots, and determine the validity
of the proxies and render an opinion as to the final election
results, " "had not yet vetted the proxies or
otherwise rendered his opinion regarding the validity of the
response to the quo warranto petition, defendants filed a
peremptory exception of no right of action and a dilatory
exception of lack of procedural capacity, challenging the
ETPOA's right and capacity to bring the suit and seeking
to have the individual board members substituted as
plaintiffs. After a hearing on the exceptions and by judgment
dated July 22, 2015, the trial court sustained the exceptions
and allowed the ETPOA fifteen days within which to amend its
quo warranto petition. The ETPOA filed an application for a writ
of supervisory review with this Court, seeking a reversal of
the trial court's grant of defendant's exceptions.
This Court denied the writ application on September 30, 2015.
English Turn Property Owners Association v. Scott
Taranto, et al., 15-0959 (La.App. 4 Cir.
9/30/15)(unpub.). By way of a First Supplemental and
Amending Petition filed on September 3, 2015, the ETPOA was
substituted by the plaintiffs.
hearing on the quo warranto petition was held on November 4,
2015. By judgment dated November 9, 2015, the trial court
found in favor of the defendants and dismissed the quo
warranto with prejudice.
plaintiffs moved for a new trial which was denied by the
trial court on November 30, 2015. In the November 30, 2015
judgment, the trial court canceled the previously scheduled
hearing on the plaintiffs' motion for new trial (which
was scheduled for January 8, 2016) as moot. The record
reflects that, despite the trial court's having denied
the motion for new trial on November 30, 2015, plaintiffs
filed a supplemental/reply memorandum in support of their
motion for new trial on December 22, 2015. For reasons that
are not clear from the record, the trial court then held a
hearing on the motion for new trial on January 8, 2016 and,
again, denied the motion for new trial by judgment dated
January 15, 2016.
filed a motion to appeal the judgments of November 9, 2015
and January 15, 2016 on February 4, 2016.
March 15, 2017, defendants filed a Motion to Dismiss this
appeal on the basis that their terms of office ended when a
new board of directors was elected on March 8, 2017, and
therefore, the issues under review in this appeal are now
moot, citing Hardy v. Albert, 225 So.2d 127 (La.App.
4th Cir. 1969). In Hardy, this Court found
"that since the contested terms of the defendants have
expired, and a new election has been held prior to the final
determination of the issues raised in the quo warranto
proceeding, the question…regarding the defendants'
legal right to occupy the offices of directors of the
homestead is now moot, and must therefore be dismissed."
Id., 225 So.2d at 128.
instant matter, while a new election may have recently taken
place and a new board of directors elected, these facts are
not part of the record on appeal. Our jurisprudence is clear
that "[t]he appellate briefs and motions of the parties
and attachments thereto are not a part of the record
on appeal, and this court has no authority to consider on
appeal facts referred to therein, or in exhibits attached
thereto, if those facts are not in the record on
appeal." Fisher v. Majestic Trucking, Inc.,
09-1398, p. 4 (La.App. 4 Cir. 3/17/10), 35 So.3d 384, 387,
citing Board of Directors of Industrial Development Board
of City of New Orleans v. All Taxpayers, Property Owners,
Citizens of City of New Orleans, 03-0826, p. 4 (La.App.
4 Cir. 5/29/03), 848 So.2d 740, 744 (emphasis in original).
unclear in Hardy whether the election of the new
directors took place before the judgment denying the quo
warranto petition was appealed. It is likewise unclear
whether the matter of the new election was part of the record
of the Hardy appeal. Given that the trial court
judgment in Hardy was rendered on December 17, 1968
and the new directors were elected less than a month later,
on January 15, 1969, it is likely that the new election took
place before the appeal was filed and was thus part of the
while the Motion to Dismiss informs this Court that a new
election occurred and attaches an affidavit attesting to that
fact, with a copy of the election results, neither the
affidavit nor the election results are part of the record on
appeal. Accordingly, as a court we cannot consider any
document or pleading not forming part of the record on appeal
and for that reason, we deny the motion to dismiss.
turn to the issues on appeal.
exceptions of no right of action and lack of procedural
their first assignment of error, plaintiffs argue that the
trial court erred in granting defendants' peremptory
exceptions of no right of action and lack of procedural
capacity. As previously noted, the ETPOA raised these very
issues in an application for a writ of supervisory review
which was denied by this Court in September, 2015. However,
our jurisprudence reflects that the "denial of
supervisory review is merely a decision not to exercise the
extraordinary powers of supervisory jurisdiction, and does
not bar reconsideration of, or a different conclusion on, the
same question when an appeal is taken from a final
judgment." Sattar v. Aetna Life Ins. Co.,
95-1108, pp. 4-5 (La.App. 4 Cir. 3/20/96), 671 So.2d 550,
review de novo a trial court judgment sustaining an
exception of no right of action as a question of law and
determine whether the trial court's ruling was correct or
incorrect as a matter of law." First Bank &
Trust v. Duwell, 11-0104, p. 4 (La.App. 4 Cir. 5/18/11),
70 So.3d 15, 18. The de novo standard of review also applies
to our review of the trial court's ruling on a dilatory
exception of lack of procedural capacity. Wells v.
Fandal, 13-620, p. 7 (La.App. 5 Cir. 2/12/14), 136 So.3d
83, 87, writ denied, 14-0511 (La. 4/25/14), 138
So.3d 645. After our careful review of the record, as
explained more fully below, we find that the trial court
correctly granted the exceptions.
peremptory exception of no right of action "raises the
question of whether the plaintiff has the capacity or legal
interest in judicially enforcing the right asserted."
Alden v. Louisiana Citizens Prop. Ins. Co., 16-0044,
p. 4 (La.App. 4 Cir. 6/29/16), 197 So.3d 312, 315. Under La.
C.C.P. art. 681, too, "[a]n action can be brought only
by a person having a real and actual interest which he
asserts." This exception "questions whether the
party against whom it is asserted has an interest in
judicially enforcing the right alleged against the
exceptor." Touzet v. V.S.M. Seafood Services,
Inc., 96-0225, p. 2 (La.App. 4 Cir. 3/27/96), 672 So.2d
1011, 1012. "When considering the exception, the court
must ask whether the plaintiff belongs to a particular class
for which the law grants a remedy for a particular grievance
or whether the plaintiff has an interest in judicially
enforcing the right asserted." Id., pp. 2-3,
672 So.2d at 1012.
dilatory exception of lack of procedural capacity raises the
issue of want of capacity of the plaintiff to institute and
prosecute the action and stand in judgment, and/or challenges
the authority of a plaintiff who appears in a purely
representative capacity." Harvey v. State,
14-0156, p. 12 (La.App. 4 Cir. 12/16/15), 183 So.3d 684, 695,
writ denied, 16-0105 (La. 3/4/16), 188 So.3d 1060,
quoting Gibbs v. Magnolia Living Center, Inc., 38,
184, p. 2 (La.App. 2 Cir. 4/7/04), 870 So.2d 1111, 1113.
discuss the two exceptions together, because the same
reasoning applies to the underlying arguments for both
exceptions in this case. We have found, infra, that
the trial court correctly held that defendants have shown
their authority to serve as members of the ETPOA Board of
Directors. In this regard, we have found the February11, 2015
election to be valid and the defendants to have been legally
elected to their positions. While plaintiffs maintain that a
February 24, 2015 Resolution of the ETPOA authorized
plaintiffs to bring the quo warranto action on behalf of
ETPOA, they were no longer members of the Board of Directors,
and no longer had power to act on behalf of
ETPOA. Accordingly, they could no longer act on
behalf of the ETPOA as members of the Board of Directors. For
this reason, alone, these issues are moot. We also note that
at least one court has recognized that "[i]n a petition
for quo warranto, the only parties 'necessary' are
those claiming or vying for the office at issue."
Smith v. Cannon, 43, 964, p. 3 (La.App. 2 Cir.
1/28/09), 2 So.3d 1227, 1230.
"[q]uo warranto is a writ directing an individual to
show by what authority he claims or holds public office, or
office in a corporation, or directing a corporation to show
by what authority it exercises certain powers. Its purpose is
to prevent usurpation of office or of powers." La.
C.C.P. art. 3901. As this Court has recognized, the
"proper procedure to try title to office in a private
corporation is a writ of quo warranto." Crutcher v.
Tufts, 04-0653, p. 6 (La.App. 4 Cir. 2/16/05), 898 So.2d
529, 533. This Court has also repeatedly recognized the
limited nature of the quo warranto procedure; we recently
reiterated, in Camillus Specialty Hosp., L.L.C. v.
Riccio, 13-1172, p. 6 (La.App. 4 Cir. 1/30/14), 133
So.3d 287, 291, that the "writ of quo warranto is narrow
in scope and is to be given only a limited use, which is to
prevent usurpation of office or of powers." See
also, Menard v. ...