FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2013-10431,
DIVISION "G-11" Honorable Robin M. Giarrusso, Judge
V. Miller, II Patrick H. Patrick PATRICK, MILLER, L.L.C.
COUNSEL FOR PLAINTIFF/APPELLANT.
H. Didriksen, III Erin Bruce Saucier Carl A. "Trey"
Woods, III Michael S. Finkelstein DIDRIKSEN, SAUCIER, WOODS
& PICHON, PLC COUNSEL FOR DEFENDANT/APPELLEE.
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Daniel L. Dysart
L. DYSART, JUDGE
Atkinson and David Wells instituted actions for declaratory
judgment and mandamus against the Harborview Homeowners
Association, Inc.; Michael George, Pete Ingrassia, Lisa
Schuler, as members of the Association's board; and,
Bonnie Loftis, as president of Fontaine Management Company
(hereinafter "defendants" or
"association"). Subsequently, an Amended Petition
for Writ of Mandamus, Declaratory Judgment and Damages was
filed by Alice Atkinson and John McHugh, plaintiff/appellants
("plaintiffs") herein. On May 25, 2016, the trial
court rendered summary judgment dismissing all of
plaintiffs' claims. Plaintiffs appealed, and defendants
answered the appeal complaining that the award of attorney
fees for plaintiffs' successful mandamus claim was
reasons that follow, we affirm the judgment in part, reverse
the judgment in part, and remand this matter for further
Atkinson and Wells sought a declaratory judgment relative to
the composition and operation of the board of directors of
the association. They also sought a temporary restraining
order to prohibit the board of directors from taking any
further actions, including spending monies in the
association's account and assessing fines against
property owners, until the court appointed a special master
to conduct an annual meeting, and sought discovery of
numerous documents allegedly held by the board of directors.
trial court denied the request for a temporary restraining
order and injunctions. Plaintiffs Atkinson and McHugh filed
an amended Petition for Writ of Mandamus, Declaratory
Judgment and Damages. The writ of mandamus sought to have the
association produce its membership roll for examination, to
have the court declare certain board members ineligible to
serve, and to declare plaintiff McHugh eligible to serve on
the board. They also requested the court to invalidate all
business conducted while an allegedly illegally constituted
board was in place, in particular, amendments to the original
bylaws. Ms. Atkinson sought damages, including attorney fees
filed exceptions including improper cumulation, unauthorized
use of summary proceedings, prematurity, lack of procedural
capacity and no right of action. The trial court overruled
all of the exceptions as they pertained to Ms. Atkinson's
petition for writ of mandamus, and ordered defendants to
produce the membership records. The court granted Ms.
Atkinson's request for attorney fees and costs, the
amount to be determined at a later date.
judgment was rendered on August 13, 2015 granting in part a
motion to compel filed by plaintiffs, awarding them limited
court costs. Additionally, the judgment indicated that
defendants' exceptions of lack of procedural capacity and
no right of action were withdrawn, and the exceptions of
improper cumulation and unauthorized use of summary
proceedings were also withdrawn, reserving their right to
object to any new summary proceedings. Defendants'
exception of prematurity was deferred pending a ruling by the
court on the validity of the associations' bylaws. Last,
summary judgment was granted in part, finding that Michael
George was eligible to serve on the association's board.
The judgment denied summary judgment as to the validity of
the amended bylaws, and deferred John McHugh's request to
be deemed eligible to serve on the board.
November 19, 2015, the trial court ruled on the request for
attorney fees and costs relative to the Ms. Atkinson's
writ of mandamus. The court awarded $7, 822.41. Defendants
asked for a new trial, which was denied ex parte on
December 1, 2015. On December 31, 2015, defendants filed a
Notice of Intent to Seek Supervisory Writ, and was given a
return date of February 5, 2016. No writ was filed in this
filed a second Motion for Summary Judgment on March 28, 2016,
seeking dismissal of all of plaintiffs' claims arguing
that no genuine issues of fact remained. The trial court
rendered a judgment on May 25, 2016, ruling that the vote of
the association to amend its bylaws was valid and was
retroactive to the date filed in the Orleans Parish
conveyance records (12/23/13), and dismissing all of
plaintiffs' claims, with ...