Opinion
NO. 2012 CA 0786
12-21-2012
CHARLES H. THIBODEAUX v. LEONARD BUCKLIN
CHARLES H. THIBODEAUX PEARL RIVER, LA FREDRIC THEODORE Le CLERCQ DURIS L. HOLMES NEW ORLEANS, LA PLAINTIFF-APPELLANT (PRO SE) ATTORNEYS FOR DEFENDANT-APPELLEE LEONARD BUCKLIN
NOT DESIGNATED FOR PUBLICATION
Appealed from the
22nd Judicial District Court
in and for the Parish of St. Tammany, Louisiana
Trial Court No. 2011-15711
Honorable Martin E. Coady, Judge
CHARLES H. THIBODEAUX
PEARL RIVER, LA
FREDRIC THEODORE Le CLERCQ
DURIS L. HOLMES
NEW ORLEANS, LA
PLAINTIFF-APPELLANT
(PRO SE)
ATTORNEYS FOR
DEFENDANT-APPELLEE
LEONARD BUCKLIN
BEFORE: KUHN, PETTIGREW, AND MCDONALD, JJ.
PETTIGREW , J.
In this case, plaintiff appeals from a trial court judgment sustaining defendant's exceptions raising the objections of no right of action and no cause of action and dismissing plaintiff's claims. For the reasons that follow, we affirm.
According to the record, the Marina Chamaie Condominium Association, Inc. ("the Association") was incorporated on August 18, 1981, for the purpose of providing an entity under the Louisiana Condominium Act for the Marina Chamaie Condominiums. On October 22, 1981, Chamaie Cove - A Louisiana Partnership in Commendam, recorded a Condominium Declaration Creating and Establishing the Marina Chamaie Condominiums. The plaintiff, Charles H. Thibodeaux, became a member of the Association when he purchased two boat slips -- Slip 122-A on March 15, 2006 and Slip 7 on May 14, 2007. He was later elected to the board of directors of the Association.
On May 17, 2011, the board of directors, including Mr. Thibodeaux, met to discuss alternatives for generating income to complete repairs to the marina docks, and voted 4-1 to levy a special assessment of $300.00 per slip to be paid on or before September 30, 2011. Mr. Thibodeaux voted against the special assessment. Subsequently, on October 4, 2011, Mr. Thibodeaux filed suit against Leonard Bucklin, as the Association's president, to enjoin the collection of the special assessment and require the return of all funds previously collected for the special assessment. The proposed order submitted by Mr. Thibodeaux along with this petition was denied by the trial court on October 12, 2011.
On October 24, 2011, Mr. Thibodeaux filed an amended petition, seeking the same relief that was previously denied, but also requesting that there be no further work on the marina docks until there was a determination as to whether the work being done was in accordance with "the prevailing laws of the Parish of St. Tammany." The proposed order submitted along with this petition was denied by the trial court on October 25, 2011.
On November 7, 2011, Mr. Thibodeaux filed another amended petition. In this petition, Mr. Thibodeaux alleged that Mr. Bucklin had ordered materials for the marina docks that did not comply with the "Parish Code." Mr. Thibodeaux demanded that Mr. Bucklin "personally pay for all changes in the water system to bring it to Code."
In response to Mr. Thibodeaux's claims, Mr. Bucklin filed a general denial and various exceptions, including objections of no right of action and no cause of action. Mr. Bucklin also moved for summary judgment, The matter proceeded to a hearing before the trial court on January 11, 2012, at which time the issues were argued and submitted for consideration. Thereafter, the trial court rendered judgment in favor of Mr. Bucklin granting the exceptions raising the objections of no right of action and no cause of action. A judgment in accordance with the trial court's findings was signed on November 30, 2012. This appeal by Mr. Thibodeaux followed.
Although in the hearing transcript the trial court clearly stated that it was sustaining the no cause of action exception, the judgment signed by the trial court sustains both the no cause of action and no right of action exceptions. When there is a conflict between the transcript and the judgment, the judgment prevails. Rogers v. Graves, 2006-0648, p. 5 n.2 (La. App. 1 Cir. 2/21/07), 959 So.2d 990, 994 n.2, writ denied,2007-0939 (La. 6/22/07), 959 So.2d 500. Nonetheless, while we note this discrepancy in our review of the record, neither party has raised the issue as error on appeal. Thus, our discussion of same ends here.
The original judgment was signed by the trial court on January 11, 2012. However, on June 4, 2012, this court issued a show cause order regarding the lack of appropriate decretal language in the January 11, 2012 judgment. On November 20, 2012, this court issued an order remanding the matter to the trial court for the limited purpose of supplementing the record with a valid, final judgment. The record was supplemented with the trial court's November 30, 2012 judgment, sustaining Mr. Bucklin's no right of action and no cause of action exceptions and designating the judgment as final "insofar as it disposes of all claims between all parties" and further declaring the judgment to be final pursuant to La. Code Civ. P. art. 1915.
Pursuant to Uniform Rules-Courts of Appeal, Rule 2-12.4, an appellant's brief must comply with certain requirements. The brief must include, among other things, "a concise statement of the case, the ruling ... of the trial courta specification or assignment of alleged errors an argument confined strictly to the issues of the case, ... citations of the pages of the record and a short conclusion stating the precise relief sought." Uniform Rules-Courts of Appeal, Rule 2-12.4. Rule 2-12.4 further provides that "[a]ll specifications or assignments of error must be briefed." Id. We "may consider as abandoned any specification or assignment of error which has not been briefed." Id.
In Mr. Thibodeaux's pro se brief, he failed to comply with the requirements of Rule 2-12.4. While he lists several alleged errors, Mr. Thibodeaux does not brief any of the issues he raises. Although we could summarily dismiss this entire appeal for failure to brief the assignments of error, given Mr. Thibodeaux's pro se status, we will review the record to determine if the judgment appealed from is supported by the evidence.
The function of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of a pleading by determining whether the law affords a remedy on the facts alleged in the pleading, Ourso v. Wal-Mart Stores, Inc., 2008-0780, pp. 3-4 (La. App. 1 Cir. 11/14/08), 998 So.2d 295, 298, writ denied, 2008-2885 (La. 2/6/09), 999 So.2d 785. The exception is triable on the face of the pleadings, and, for the purposes of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Ourso, 2008-0780 at 4, 998 So.2d at 298. In reviewing a trial court's ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review, because the exception raises a question of law, and the trial court's decision is based only on the sufficiency of the petition. Torbert Land Co., LLC. v. Montgomery, 2009-1955, p. 4 (La. App. 1 Cir. 7/9/10), 42 So.3d 1132, 1135, writ denied. 2010-2009 (La. 12/17/10), 51 So.3d 16.
Citing Harris v. Federal Fibre Mills Condominium Ass'n, Inc., 2002-1715 (La. App. 4 Cir. 3/19/03), 843 So.2d 457, writ denied, 2003-1078 (La. 6/6/03), 845 So.2d 1094, in his memorandum in support of his exceptions, Mr. Bucklin argued that Mr. Thibodeaux had no right or cause of action against him or any other board member individually. In Harris, a condominium owner sued the condominium association based on violations of the association's rules and regulations by a second condominium owner and her lessee, who allegedly made unreasonable noises and disturbances. The fourth circuit noted that the only other case recognizing a cause of action against a non-profit corporation's directors was based on a "self-dealing scheme" that "involved negligent and intentional misrepresentations and omissions, failure to act in good faith, and other unlawful conduct all of which constituted a breach of their fiduciary duties to the nonprofit corporation." Harris, 2002-1715 at 9, 843 So.2d at 463. Absent such allegations against the condominium association, the fourth circuit found that the plaintiff had no cause of action. Harris, 2002-1715 at 9-10, 843 So.2d 463-464.
Following our de novo review of the record before us, accepting the facts pled in the petition as true, we conclude that the trial court correctly granted the exception raising the objection of no cause of action. Mr. Thibodeaux's petition fails to allege any act or omission on the part of Mr. Bucklin that can be interpreted as a breach of a fiduciary duty. See Harris, supra. Accordingly, we affirm the trial court's judgment and assess all costs associated with this appeal against plaintiff, Charles H. Thibodeaux.
Having determined that Mr. Thibodeaux's petition does not state a cause of action against Mr. Bucklin, we pretermit discussion of the no right of action exception.
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