KEEPING OUR LEGACY ALIVE, INC.
CENTRAL ST. MATTHEW UNITED CHURCH OF CHRIST
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-04952,
DIVISION "E" Honorable Clare Jupiter, Judge.
L. Jones ATTORNEY AT LAW, COUNSEL FOR PLAINTIFFS/APPELLANTS.
Vincent J. Booth BOOTH & BOOTH, A PLC COUNSEL FOR
composed of Judge Terri F. Love, Judge Joy Cossich Lobrano,
Judge Sandra Cabrina Jenkins
CABRINA JENKINS JUDGE.
Keeping Our Legacy Alive, Inc. ("KOLA") and four
individual named plaintiffs, appeal the trial court's
October 24, 2017 judgment granting the exception of
prescription filed by defendant, Central St. Matthew United
Church of Christ ("CSM"), and dismissing
plaintiffs' original, first amending, and second amending
petitions with prejudice. For the following reasons, we find
the trial court erred in finding plaintiffs' claims
prescribed under La. R.S. 12:208(A)(1) and granting CSM's
exception of prescription. However, based on our de
novo review of the record and in consideration of the
arguments raised in this appeal, this Court notices the
failure to disclose a right of action to seek the relief
prayed for in their petitions and the failure to state a
cause of action upon which relief may be
granted. Therefore, on exceptions of no right of
action and no cause of action raised sua sponte by
this Court, we find that plaintiffs have no right of action
against CSM to invalidate the merger and transfer of title to
property and that plaintiffs' petitions fail to state a
cause of action upon which relief can be granted for a
petitory action. Accordingly, we affirm the dismissal of
plaintiffs' petitions with prejudice.
AND PROCEDURAL HISTORY
spring of 2005, Central Congregational United Church
("Central") entered into a rental agreement with
St. Matthew United Church of Christ ("St.
Matthews") to temporarily hold church services in a
chapel at St. Matthew while Central's church building was
undergoing repairs. At that time, Central owned the church
building at 2401 Bienville Street, as well as several
adjacent properties on Bienville Street, North Tonti Street,
and Conti Street. St. Matthew owned a church on South
August 29, 2005, when Hurricane Katrina made landfall, the
members of Central worshipped as their own congregation in
the chapel leased from St. Matthew. But as a result of the
impact from Hurricane Katrina, Central's congregation was
disbursed and fewer members gathered to worship at the
chapel. In October 2005, members of Central began to worship
with the congregation of St. Matthew.
September 2007, Central and St. Matthew entered into a
"covenant" agreement to worship together as two
congregations. By a second "covenant" agreement,
Central and St. Matthew agreed to unify their congregations
but maintain separate ownership of church properties.
January 2010, Central and St. Matthew filed Articles of
Incorporation with the Louisiana Secretary of State to create
CSM, a nonprofit religious corporation. In October 2014, CSM
filed Articles of Merger with the Louisiana Secretary of
State to officially unite and merge Central and St. Matthew
into the surviving corporation of CSM.
Articles of Merger included the following provision:
At and after the Effective Time, all rights and ownership of
the assets of St. Matthew and Central Congregational shall
vest in CSM as the Surviving Corporation and CSM shall
possess all the rights, privileges, immunities, powers and
purposes of St. Matthew and Central Congregational, pursuant
to La. R.S. 12:246.C and 12: 246.D.
Articles of Merger listed the assets affected by the merger,
including the church building at 2401 Bienville Street.
December 2015, the Governing Council of CSM voted to sell the
Bienville Street property. In January 2016, in response to
CSM's vote to sell the property, a group of
"pre-Katrina members of Central" organized and
filed Articles of Incorporation to create KOLA, for the
purpose of preserving the historic legacy and property of
23, 2017, KOLA filed a petition against CSM seeking to
"declare invalid a purported merger" of Central and
St. Matthew, and to enjoin the sale or encumbrance of
immovable property purportedly transferred from Central to
CSM in the Articles of Merger. The petition alleged that the
"purported merger" of Central and St. Matthew was
null and void for failure to comply with the required
procedures for the merger of non-profit corporations under
La. R.S. 12:243. KOLA's original petition sought a
declaratory judgment voiding the Articles of Merger filed and
recorded on October 20, 2014, and an injunction on the sale
or encumbrance of "any property acquired in the
16, 2017, CSM filed peremptory exceptions of prescription and
no right of action, arguing KOLA's claim seeking to
invalidate the act of merger by CSM was an untimely ultra
vires action pursuant to La. R.S. 12:208(A)(1), and KOLA
had no right of action to bring an action under La. R.S.
12:208(A)(1), because KOLA was not a member of CSM.
27, 2017, KOLA filed a first amending petition wherein it
named four additional, individual plaintiffs and alleged that
each of the individual plaintiffs was a member of CSM. That
same day, plaintiffs also filed an opposition to CSM's
peremptory exceptions. Prior to the trial on the peremptory
exceptions, CSM filed a reply memorandum stating that the
addition of new plaintiffs by the first amending petition
rendered its exception of no right of action moot.
August 11, 2017, the trial court held a hearing on CSM's
peremptory exception of prescription. At the conclusion of
the hearing, the trial court took the matter under
September 28, 2017, prior to the rendition of judgment on
CSM's exception of prescription, plaintiffs filed a
second amending petition "filed before answer
served." In this petition, plaintiffs added a new
paragraph that reads as follows:
The purported merger was legally invalid to transfer title to
real estate from Central Congregational to CSM for lack of
consent and for being signed by no individual with authority
to bind Central Congregational, and for other factual reasons
asserted in this petition; the invalid transfer is directly
challenged in this real action under the Louisiana Civil Code
second amending petition also added the following language to
the original paragraph 2: "[t]his action is brought by
the possessor of the subject property who ...