Limousine Livery v. a AIRPORT LIM. SERVICE

980 So. 2d 780, 2007 La.App. 4 Cir. 1379, 2008 La. App. LEXIS 359
CourtLouisiana Court of Appeal
DecidedMarch 12, 2008
Docket2007-CA-1379
StatusPublished
Cited by13 cases

This text of 980 So. 2d 780 (Limousine Livery v. a AIRPORT LIM. SERVICE) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Limousine Livery v. a AIRPORT LIM. SERVICE, 980 So. 2d 780, 2007 La.App. 4 Cir. 1379, 2008 La. App. LEXIS 359 (La. Ct. App. 2008).

Opinion

980 So.2d 780 (2008)

LIMOUSINE LIVERY, LTD.
v.
A AIRPORT LIMOUSINE SERVICE, L.L.C.

No. 2007-CA-1379.

Court of Appeal of Louisiana, Fourth Circuit.

March 12, 2008.

*781 John J. Steger IV, Serena E. Pollack, Pro Hac Vice, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Plaintiff/Appellant.

George D. Fagan, Marc E. Devenport, Leake & Andersson, L.L.P., and Frank J. D'Amico, Jr., Law Offices of Frank J. D'Amico, Jr., APLC, New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge PATRICIA RIVET MURRAY, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).

PATRICIA RIVET MURRAY, Judge.

This is an injunction action. The primary issue in this case is whether the trial court erred in dismissing this action based on its findings of no irreparable injury and that pursuant to the agreement between the parties the dispute should be decided by arbitration. For the reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On December 12, 2002, A Airport Limousine Service, L.L.C. ("A Airport") was created "for the purpose of conducting limousine services in conjunction with the New Orleans Airport Limousine contract" and to "operate for a term of five years terminating on December 15, 2007." Limousine Livery, Ltd. ("Limousine Livery") was one of the nine original members of A Airport and a signatory to the December 12, 2002 Operating Agreement pursuant to which A Airport was created. Rose Clark, who co-owned with her husband all of the outstanding stock in Limousine Livery, signed the Operating Agreement as Limousine Livery's representative.

The Operating Agreement contains two significant provisions relevant to the instant dispute: a right of first refusal and an arbitration provision. The right of first refusal, which is set forth in Section X of the Operating Agreement, provides that "[n]o member without the consent of the BOD [(board of directors)] and a two-thirds vote from the other members, shall: sell . . . their interest" and that "[t]he members have a right of first refusal." The arbitration provision, which is set forth in Section XV of the Operating Agreement, provides:

"The members shall submit any dispute they may have relative to any issue any member feels may be significant and is in dispute, to an arbitrator. The arbitrator will be determined at the time of the dispute. The parties agree to be bound by any decision of the arbitrator. Members have complete and final determination of all other matters."

On September 30, 2003, the members, including Limousine Livery, amended the Operating Agreement to provide:

"A two-thirds majority of the members of the L.L.C. may vote to suspend any member's right of participation in the L.L.C., including but not limited to such member's right to provide Limousine services in connection with the L.L.C.'s operations . . . and exercise any other rights of membership described in the Operating Agreement. A two-thirds majority of members of the L.L.C. may vote to suspend any member for a period up to sixty days upon a finding by the two-thirds majority of the members of the L.L.C. in their sole discretion that *782 there is reasonable cause to suspend the membership rights and obligations of any such member under the Operating Agreement or any amendment thereto. Prior to the end of any period of suspension voted upon by the members of the L.L.C. regarding any member, the non-suspended members of the L.L.C. shall have the right to conduct such investigations or engage in such other activities as may be reasonably necessary in order to determine whether the suspended member shall be terminated from the L.L.C. or reinstated."

On June 14, 2006, a third party purchased all the outstanding stock in Limousine Livery from Rose Clark and her husband.

On May 24, 2007, A Airport, through six of its seven remaining members,[1] acting pursuant to the September 30, 2003 amendment to the Operating Agreement, voted to suspend Limousine Livery's membership rights for a period of sixty days. This document reads: "a two-thirds majority of the members of the L.L.C. hereby finds and agrees that there is reasonable cause to suspend the membership rights and obligations of Rose Clark/Limousine Livery, Ltd. for a period of sixty days from the date of this document." The principal basis for the suspension was the sale of the stock in Limousine Livery to a third party without complying with the right of first refusal provision.[2]

On July 19, 2007, the Operating Agreement was amended to provide that "[a] two-thirds majority of the non-suspended members of the L.L.C. may vote to extend the suspension period of any suspended member by a period of forty-five (45) days in order to continue the investigation into the matter that caused such suspension and/or to bring all incurred obligations of the suspended member current." Based on that amendment, the temporary suspension and investigation of Limousine Livery were continued for a period of up to forty-five days from that date, July 19, 2007, in order to determine whether to terminate or reinstate it.[3]

On August 23, 2007, five of the non-suspended members sold their interests in A Airport to the only other non-suspended member, A Confidential Transportation, Inc. ("A Confidential"). This sale was approved by one-hundred percent of the non-suspended members. As a result of this sale, A Confidential became the sole non-suspended member. According to the petition, Limousine Livery was not given notice of this sale.

*783 On August 28, 2007, Limousine Livery filed a petition for injunctive relief. In its petition, Limousine Livery alleged that A Airport "violated the terms of the Operating Agreement, and amendments thereto, by suspending Limousine Livery, Ltd. from membership without reason or cause." The relief it sought was to enjoin A Airport for "continuing the unauthorized, improper and prohibited temporary suspension of its membership because this unlawful temporary suspension of membership violates the petitioner's rights as a member." In the petition, Limousine Livery sought not only a preliminary injunction, but also a permanent injunction to the same effect.

On August 30, 2007, the trial court denied Limousine Livery's request for a temporary restraining order and set the rule to show cause as to why a preliminary injunction should not be granted for hearing on September 6, 2007. At the hearing on that date, it was established that A Airport, acting through its sole non-suspended member, A Confidential, terminated Limousine Livery's membership on August 30, 2007.

On September 10, 2007, the trial court rendered judgment finding—based on "the pleadings, affidavits, evidence and arguments of counsel"—that Limousine Livery failed to demonstrate irreparable harm or injury and that the disputes between the parties should be determined by arbitration as required by the Operating Agreement. The trial court thus dismissed without prejudice Limousine Livery's injunctive action. The instant appeal followed.

DISCUSSION

The trial court's judgment denying Limousine Livery's request for a preliminary injunction is appealable pursuant to La. C.C.P. art. 3612(C), which provides that "[a]n appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction." La. C.C.P. art. 3612(C). The right to appeal under Article 3612 is not restricted to judgments granting injunctive relief. Sessions, Fishman & Nathan, L.L.P. v. Salas, 04-1790, p. 6 (La.App. 4 Cir.

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Bluebook (online)
980 So. 2d 780, 2007 La.App. 4 Cir. 1379, 2008 La. App. LEXIS 359, Counsel Stack Legal Research, https://law.counselstack.com/opinion/limousine-livery-v-a-airport-lim-service-lactapp-2008.