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English Turn Property Owners Association v. Taranto

Court of Appeals of Louisiana, Fourth Circuit

April 19, 2017

ENGLISH TURN PROPERTY OWNERS ASSOCIATION
v.
SCOTT TARANTO, SAM MORSE, GLENN ORGERON, LISA AFRICK & DEIDRA EDWARDS

         APPEAL 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 DEFENDANT/APPELLEE

          (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Marion F. Edwards, Pro Tempore) [*]

          Daniel L. Dysart Judge

         Plaintiffs-appellants, 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 judgment.

         FACTS AND PROCEDURAL HISTORY

         On 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."

         In its 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 election."

         In 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.[1] 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.[2]

         A 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.

         The 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.

         Plaintiffs filed a motion to appeal the judgments of November 9, 2015 and January 15, 2016 on February 4, 2016.[3]

         MOTION TO DISMISS

         On 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.

         In the 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).

         It is 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 appellate record.

         Here, 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.

         We now turn to the issues on appeal.

         DISCUSSION

         Peremptory exceptions of no right of action and lack of procedural capacity

         As 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, 552.

         "We 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.

         The 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.

         "The 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.

         We 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.[4] 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.

         Quo warranto proceeding

         A "[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. ...


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