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Rover Group, Inc. v. Clark

Court of Appeals of Louisiana, First Circuit

December 12, 2019

ROVER GROUP, INC.
v.
DR. GARY CLARK, JARVIS ANTWINE, TERRY BONNIE, ERNEST LEBLANC, JR., KASHI SHERMAN, HARRY JOHNSON, INDIVIDUALLY AND AS MEMBERS, DIRECTORS OR OFFICERSOF "NEW COMMUNITYASSOCIATION FOR THE WELFAREOF SCHOOL CHILDREN, INC.", AND G. THOMAS ARBOUR, W. T. WINFIELD, AAROLYN WHEELER, AND THECOMMUNITY ASSOCIATION FOR THE WELFAREOF SCHOOL CHILDREN

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number 645668 Honorable William A. Morvant, Judge Presiding

          Terry L. Bonnie Baton Rouge, LA Counsel for Defendants/Appellants Dr. Gary Clark, Jarvis Antwine, Terry Bonnie, Ernest Leblanc, Jr., Kashi Sherman, Harry Johnson, individually and as members, directors or officers of "New Community Association for the Welfare of School Children, Inc."

          Mark V. Marinoff Baton Rouge, LA Counsel for Plaintiff/Appellee Rover Group, Inc.

          Preston J. Castille, Jr. Katia D. Bowman Baton Rouge, LA Counsel for Defendants/Appellees Star Hill Baptist Church, Pastor Raymond Jetson, Alex Keys, Jason B. Thrower, and the Deacons of the Star Hill Baptist Church

          David H. Ogwyn Michael E. Platte Baton Rouge, LA Counsel for Defendants/Appellees G. Thomas Arbour, W T. Winfield and Aarolyn Wheeler

          BEFORE: WHIPPLE, C.J., MCCLENDON, HIGGINBOTHAM, THERIOT, AND PENZATO, JJ.

          WHIPPLE, C.J.

         This matter is before us on appeal by appellants, Dr. Gary Clark, Jarvis Antwine, Terry Bonnie, Ernest Leblanc, Jr., Kashi Sherman, and Harry Johnson, individually and as members, directors or officers of Community Association for the Welfare of School Children, Inc., from the trial court's June 13, 2018 judgment. That judgment sustained peremptory exceptions raising the objection of peremption filed by appellees, Star Hill Baptist Church, Pastor Raymond Jetson, Alex Keys, Jason B. Thrower, and the Board of Deacons of Star Hill Baptist Church, and appellee, Rover Group, Inc. The judgment also sustained the peremptory exception raising the objection of preemption filed by defendants, G. Thomas Arbour, W. T. Winfield, and Aarolyn Wheeler. For the following reasons, we affirm in part and vacate in part.

         FACTS AND PROCEDURAL HISTORY

         On May 27, 2014, Rover Group, Inc. ("Rover") entered into a Lease with an Option to Purchase with Community Association for the Welfare of School Children ("CAWSC"), a non-profit corporation, through its officers, directors, and/or members G. Thomas Arbour, W.T. Winfield, and Aarolyn Wheeler for property located at 440 North Foster Drive in Baton Rouge ("Rover Lease"). On October 12, 2015, Dr. Gary Clark, Jarvis Antwine, Terry Bonnie, Ernest Leblanc, Jr., Kashi Sherman, and Harry Johnson filed a petition for eviction in Baton Rouge City Court, contending that they owned the North Foster Drive property by virtue of a judgment issued in a Quo Warranto Suit on July 13, 2015 ("Quo Warranto Suit").[1] Although their eviction suit was ultimately dismissed, judgment was issued in favor of Clark, Antwine, Bonnie, Leblanc, Sherman, and Johnson, in the Quo Warranto Suit, providing, in pertinent part, as follows:

Considering the law, evidence and argument of counsel, the Court ruled in favor of the Petitioners, Jarvis Ant[wi]ne and Cecil J. Cavanaugh and against defendants, W.T. Winfield, Alfred Williams, G. Thomas Arbour, and Aarolyn [Wheeler].
IT IS ORDERED, that defendant be enjoined and prohibited from conducting any further business in the name of or on behalf of the Community Association for the Welfare of School Children and, further that an election be declared and held by Petitioners and held in accordance with the applicable article of incorporation and/or by-laws within sixty (60) days of the court's issuance of this ruling.

         This court amended the judgment only to provide that "defendants be enjoined...," finding it just, legal and proper to revise the judgment to correct a typographical error. Antwine v. Winfield, 2015-1850 (La.App. 1st Cir. 9/16/16), 203 So.3d 454, 459 and 462. The judgment in the Quo Warranto Suit prohibited W.T. Winfield, Alfred Williams, G. Thomas Arbour, and Aarolyn Wheeler from conducting further business in the name of CAWSC. Because the Rover Lease was entered into on May 27, 2014, which was prior to the date of the judgment in the Quo Warranto Suit, Rover continued its operation in accordance with its belief that the Rover Lease remained in effect, while Dr. Gary Clark, Jarvis Antwine, Terry Bonnie, Ernest Leblanc, Jr., Kashi Sherman, and Harry Johnson, the new members or officers of CAWSC, maintained that the Rover Lease was a nullity and without effect.

         Accordingly, on February 2, 2016, Rover filed the instant injunction and possessory action against Clark, Antwine, Bonnie, Leblanc, Sherman, and Johnson (the "Clark defendants"), individually and as members, directors or officers of a group identifying itself as "New Community Association for the Welfare of School Children, Inc."[2] and against G. Thomas Arbour, W.T. Winfield, and Aarolyn Wheeler (the "Arbour defendants"), who were alleged to be acting as members, directors, and/or officers of CAWSC. Rover also sought declaratory judgment, injunctive relief, and damages as a result of the actions of the Clark and Arbour defendants.

         In response to the lawsuit filed by Rover, the Clark defendants filed a pleading entitled, "Motion to Correct Parties['] Names in Plaintiffs (Rover Group, Inc.) Petition for Declaratory Judgment, Possessory Action, Injunctive Relief and Damages and Reconventional Demand" ("Clark Reconventional Demand").[3]Although styled as a reconventional demand, the Clark Reconventional Demand actually asserted a reconventional demand against Rover, a cross-claim against the Arbour defendants, [4] and a third-party demand against Star Hill Baptist Church and alleged members of its Board of Deacons, Raymond Jetson, Alex Keys, and Jason B. Thrower ("Star Hill defendants"). In their reconventional demand against Rover, the Clark defendants alleged that the Rover Lease was a nullity, as the Arbour defendants did not have authority and did not comply with requisite corporate formalities to enter into the contract on behalf of CAWSC. Similarly, in the third-party demand, the Clark defendants alleged that the purported donation of property to the Star Hill defendants was a nullity.

         On November 16, 2016, the Clark defendants filed a motion to dismiss their reconventional demand without prejudice. However, the order granting the dismissal was not signed until January 26, 2018. In the interim, on December 9, 2016, Rover amended and supplemented its petition, eliminating the Clark and Arbour defendants in the principal action and naming CAWSC as a defendant in their place.[5] In response, CAWSC filed exceptions of no right and no cause of action, which were denied by the trial court. CAWSC then filed writ applications with this court and the Supreme Court, all of which were denied.

         In September of 2017, CAWSC answered Rover's amended and supplemental petition and asserted incidental demands therein. Specifically, CAWSC asserted a third-party demand against W.T. Winfield, alleging that neither he nor Alfred C. Williams (deceased) were authorized to sign the Rover Lease on behalf of CAWSC. CAWSC also reconvened against Rover, seeking various items of damages, including damages for the continued unauthorized possession of the North Foster Drive property at issue in the Rover Lease. Defendants Winfield and Rover both filed answers and affirmative defenses in response to these demands by CAWSC. Subsequently, a peremptory exception of peremption was filed by the Arbour defendants, [6] which exception was later adopted and asserted by Rover. In the exception, Rover and the Arbour defendants contended that any claims asserted by CAWSC on the basis that the Arbour defendants were not authorized to execute the Rover Lease were perempted pursuant to LSA-R.S. 12:208.[7] These exceptions were ultimately set to be heard by the trial court on May 21, 2018.

         Although not included in the designated record, on or about February 27, 2018, the previously asserted and voluntarily dismissed third-party demand against the Star Hill defendants was purportedly refiled by the Clark defendants.[8] In response, Star Hill filed peremptory exceptions raising the objections of peremption (pursuant to LSA-R.S. 12:208(A)(1)) and no cause of action, urging that all claims asserted against them should be dismissed, with prejudice. The trial court set the Star Hill defendants' exceptions for hearing on May 21, 2018.

         On May 11, 2018, CAWSC filed oppositions to the exceptions filed by the Star Hill defendants, the Arbour defendants, and Rover. The Clark defendants filed a motion to continue the May 21, 2018 hearing on the basis that their motion for summary judgment should be heard on the same date as the exceptions. The trial court denied the motion to continue and heard the exceptions raising the objection of peremption. At the conclusion of the hearing, the trial court found that the claims raised against the Star Hill defendants, the Arbour defendants, and Rover were perempted under LSA-R.S. 12:208, and therefore sustained the exceptions. A judgment in conformity with the trial court's rulings denying the motion to continue, sustaining the exceptions, and dismissing the Clark defendants' claims against the Star Hill defendants, the Arbour defendants, and Rover, with prejudice, was signed on June 13, 2018. From this judgment, the Clark defendants appeal, [9] asserting the following assignments of error and issues for review:

         ASSIGNMENT OF ERRORS

1. The trial court erred when it applied LSA-R.S. 12:208 where there is no action filed by a member of a nonprofit corporation, CAWSC, against the nonprofit corporation, CAWSC.
2. The trial court erred when it failed to find that the action of W.T. Winfield in signing the purported lease with option to purchase is null and void ab initios[10]

         ISSUES PRESENTED FOR REVIEW

1. Whether the trial court should have denied the peremptory exception of peremption filed by the Appelle [sic] Rover?
2. Whether the trial court should have denied the peremptory exception of peremption filed by G. Thomas Arbour, W.T. ...

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