LORA PITRE NO. 22-CA-467
VERSUS FIFTH CIRCUIT
LOUISIANA THOROUGHBRED BREEDERS COURT OF APPEAL ASSOCIATION, WARREN HARANG, III, JAKE DELHOMME, DANIEL GUIDRY, VAL STATE OF LOUISIANA MURRELL, DAVID TILLSON, AND KEITH HERNANDEZ
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 814-185, DIVISION "O" HONORABLE DANYELLE M. TAYLOR, JUDGE PRESIDING
November 15, 2023
ROBERT A. CHAISSON JUDGE
Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, Robert A. Chaisson, Stephen J. Windhorst, and Scott U. Schlegel
JUDGMENT VACATED; REMANDED RAC SMC SJW SUS
JOHNSON, J., DISSENTS WITH REASONS MEJ COUNSEL FOR PLAINTIFF/APPELLEE, LORA PITRE A. George Grimsal Micah C. Zeno Bryan M. Dupree
COUNSEL FOR DEFENDANT/APPELLANT, LOUISIANA THOROUGHBRED BREEDERS ASSOCIATION, WARREN HARANG, III, JAKE DELHOMME, DANIEL GUIDRY, VAL MURRELL, DAVID TILLSON, AND KEITH HERNANDEZ, CARROL CASTILLE, THOMAS EARLY, MICHELLE LAVOICE AND MICHELE RODRIGUEZ Judy L. Burnthorn Joseph L. McReynolds Beverly A. Delaune Mark P. Allain, Jr. Alexandre E. Bonin R. Christian Bonin Jean-Marc Bonin Paul A. Bonin Christopher H. Corkern John L. Duvieilh CHAISSON, J.
In this appeal, defendants seek review of the trial court judgment that
granted Lori Pitre’s “Petition for Quo Warranto, Declaratory Judgment,
Mandamus; and for Preliminary Injunction” and awarded her attorney’s fees
and costs. In addition, defendants seek review of the trial court’s denial of
their exceptions of no cause of action and prescription. For the reasons that
follow, we find that the trial court erred in granting Ms. Pitre’s petition and
the relief requested therein. Accordingly, we vacate the judgment of the trial
court and remand this matter for further proceedings consistent with this
opinion.
FACTS AND PROCEDURAL HISTORY
Lora Pitre is a longstanding member of the Louisiana Thoroughbred
Breeders Association (“LTBA”), a non-profit corporation that regulates the
breeding and accreditation of thoroughbred horses in Louisiana. Through
the years, Ms. Pitre has been active in the organization and has previously
served on the Board of Directors and several committees. In June of 2020,
the annual election of the Board of Directors took place. The results from
that election revealed that the following four individuals were elected to the
board: Val Murrell, David Tillson, Daniel Guidry, and Keith Hernandez.1
At the subsequent board meeting on August 18, 2020, the newly
elected board elected its officers. In particular, the board elected Warren
Harang as its president, Jake Delhomme as its first vice-president, and
Daniel Guidry as its second vice-president. In addition, at the August
meeting, the Board of Directors, by a nine to four vote, adopted amendments
1 Val Murrell and Daniel Guidry were members of the previous board who were re-elected to the board in the June 2020 election when their prior terms expired. David Tillson and Keith Hernandez were not members of the prior board and were newly elected to the board in the June 2020 election.
22-CA-467 1 relating to certain breeding and domicile requirements for mares. Ms. Pitre
was present at this meeting to advocate against the amendments, and
according to the minutes, she presented a stack of petitions signed by
members who were against the proposed changes to the foal accreditation
provisions in the bylaws. Despite this opposition, the amendments passed.
On January 25, 2021, Ms. Pitre, who was displeased with the passage
of these amendments, filed a “Petition for Quo Warranto, Declaratory
Judgment, Mandamus; and for Preliminary Injunction” against the LTBA
and six of the board members who voted for the amendments, including
Warren Harang, III, Jake Delhomme, Daniel Guidry, Val Murrell, David
Tillson, and Keith Hernandez.2 In her petition, Ms. Pitre attacked the
authority of the sued board members based on purported violations of the
bylaws in conducting the June 2020 board election and alleged that
subsequent to this defective election, defendants wrongfully elected or re-
elected themselves as officers and then unlawfully amended the bylaws
regarding foal accreditation.
With regard to the specific improprieties in the elections, Ms. Pitre’s
allegations fall into four basic categories: 1) specific and individualized
allegations against Mr. Tillson and Mr. Guidry regarding their eligibility to
serve on the board and as officers due to their alleged lack of regular
membership in the LTBA; 2) general allegations that there were individuals
who timely applied for membership in the LTBA, but whose applications
were not taken up for approval and thus were denied the ability to vote in the
Board of Directors election; 3) general allegations that there were
individuals who did not comply with the approval procedure in the LTBA’s
2 Ms. Pitre chose not to name as defendants the other three board members who voted for the amendments, namely: Carrol Castille, Tom Early, and Michele LaVoice, despite the fact that she made extensive allegations of conflicts of interest against Mr. Castille and Mr. Early.
22-CA-467 2 bylaws and/or pay their dues to the association, but were nevertheless
allowed to vote in the Board of Directors election;3 and 4) general
allegations that the prior Board of Directors and executive director failed to
comply with all bylaw requirements for conducting the Board of Directors
election. In her petition, Ms. Pitre requested that the court order defendants
to appear and show by what authority each defendant claimed to hold office
in the LTBA. She also requested a declaratory judgment vacating the board
election, the election of officers, and the adoption of amendments to the foal
accreditation provisions of the bylaws, mandamus relief ordering the board
to conduct a new election under the supervision of a court-appointed
arbitration panel, injunctive relief, and attorney’s fees and costs.
In response, defendants filed an answer and exceptions of prematurity,
unauthorized use of a summary proceeding, improper culmination of actions,
vagueness, prescription, and no cause of action. On February 22, 2021,
following arguments of counsel, the trial court denied all of defendants’
exceptions, and the matter proceeded to hearing on the quo warranto
petition.
At the hearing, Roger Heitzmann, who has served as the LTBA’s
executive director and secretary-treasurer for approximately ten to eleven
years, testified on behalf of the defense.4 Mr. Heitzmann explained that in
order to become a member of the LTBA, a person has to fill out a
membership form, pay his dues, own 50% of breeding stock, and sign a form
certifying that the information given to the LTBA is true. In response to Ms.
3 Ms. Pitre attached as Exhibit G to her petition a list of 140 names of individuals that she alleged voted in the election who were ineligible, but did not specify the reason as to why each individual person was allegedly ineligible. 4 Defense counsel first called Lora Pitre as a witness. However, when defense counsel proceeded to question her, the trial court sustained, as irrelevant, all objections to questions relating to whether she had received a copy of the membership list from the LTBA prior to April 7, 2020, and whether she made any objections to the membership list approved by the board at its April meeting prior to the June 2020 board elections.
22-CA-467 3 Pitre’s specific and individualized allegations against Mr. Tillson, Mr.
Heitzmann testified that Mr. Tillson submitted a membership application in
2019, and confirmed documents presented to him as the 2019/2020
membership application submitted by Mr. Tillson to the LTBA.5 In
response to Ms. Pitre’s specific and individualized allegations against Mr.
Guidry, Mr. Heitzmann next identified the LTBA’s record of the 2019/2020
membership application for the entity Docatty Stables, LLC, and confirmed
this document is kept in the normal course and scope of his employment
with the LTBA as a business record. Mr. Heitzmann testified that he is
aware through independent knowledge about the membership of Docatty
Stables, LLC, specifying that Danny Guidry and Eddie Guidry each have
fifty percent ownership. The documents related to this membership
application were introduced into evidence as D-4. Mr. Heitzmann then
testified that Jake Delhomme is a long-standing regular member of the
LTBA through his business, that he has served on the Board of Directors for
many years, that he was last elected to the Board of Directors in 2018, and
that no challenge has ever previously been raised regarding Mr. Delhomme’s
participation on the board. Mr. Heitzmann relayed that he was present at the
August 18, 2020 Board of Directors meeting, when the election of officers
took place, and that Jake Delhomme was elected as the first vice-president at
that meeting.
Mr. Heitzmann next testified that he is familiar with the membership
of Keith Hernandez, that he has been an active member of the LTBA for
more than sixteen years, and that he was seated by the board as a director at
5 Mr. Heitzmann identified the documents that were copied from the LTBA office relating to the membership of Mr. Tillson and the registrations of two mares that he owns either fully or partially. The membership documents were admitted as D-3 for the limited purpose of confirming they were the application documents he received on behalf of Mr. Tillson. The trial court did not allow Mr. Heitzmann to testify as to the veracity of the information contained in the documents.
22-CA-467 4 the August 2020 meeting. Further, Mr. Heitzmann confirmed that Warren
Harang is an LTBA member, that he has served on the Board of Directors
for many years with his latest election in 2019, and that he was elected
president at the August 18, 2020 board meeting. Mr. Heitzmann also stated
that Val Murrell is a regular member of the LTBA, and that he was seated as
a director at the August 18, 2020 board meeting. According to Mr.
Heitzmann, during his time at the LTBA, no one has been denied the ability
to run for the Board of Directors because he maintains membership as a
business entity. Further, he has never been instructed that someone must
have an individual membership to run for the Board of Directors because
“the board is doing everything it can to get as many members involved as
possible.”
Mr. Heitzmann next explained the grievance procedure set forth in the
bylaws relating to the filing of a complaint about any member as follows:
It’s upon the filing of a written complaint about any member on the LTBA complaint form, an investigation will be performed by the LTBA. After which the member complained of shall be given reasonable notice of the complaint and an opportunity to be heard. The Board of Directors, after the hearing, upon 75 percent of the vote of the directors present, may take any action against a member deemed appropriate to protect the interest of this association, including the sanctions of expulsion from, termination of or suspension of membership.
Mr. Heitzmann confirmed that to his knowledge, no complaint under
that provision has ever been lodged against the memberships of Mr. Tillson,
Mr. Guidry, Mr. Murrell, Mr. Hernandez, Mr. Harang, or Mr. Delhomme.
Further, no complaints were filed relating to the nominations of Mr. Tillson,
Mr. Guidry, Mr. Hernandez, and Mr. Murrell for the Board of Directors
election.
Mr. Heitzmann then testified that the membership list was produced to
the Board of Directors for the 2020/2021 election. He explained that, as is
22-CA-467 5 the procedure every year, he had one of his workers compile the membership
list of the voting members, including the lifetime and regular members. On
April 2, 2020, he emailed this list to the executive committee to be placed on
the agenda for the April meeting. The minutes from the April 7, 2020 board
meeting were identified by Mr. Heitzmann and introduced at the hearing as
D-5.6 Mr. Heitzmann confirmed, in accordance with the minutes, that the
membership list was unanimously approved by the Board of Directors at the
April 7, 2020 board meeting. Mr. Heitzmann stated that no objections to
any member on the list were made by any board member or regular member
prior to or at the time the list was approved.
Following approval, the list was sent to MK Elections, a neutral third-
party balloting agency that had been used for years by the LTBA to mail
ballots and tally votes. Mr. Heitzmann testified that in accordance with the
LTBA election procedures, the ballots went out June 1, 2020, and the
election was held open until June 30, 2020. During his testimony, Mr.
Heitzmann identified a copy of the election results sent to him by MK
Elections. Mr. Heitzmann testified that according to the final report,
introduced at the hearing as D-6, the following were elected as directors:
Val Murrell, David Tillson, Daniel Guidry, and Keith Hernandez. Mr.
Heitzmann posted the election results on the LTBA website on July 2,
2020.7 According to Mr. Heitzmann, no one presented an objection to him
or to the LTBA as to the election results prior to this lawsuit being filed.
Mr. Heitzmann relayed that the first Board of Directors meeting
following this election was August 18, 2020. Mr. Heitzmann was present at
6 Mr. Heitzmann, who prepared the document, acknowledged that the minutes contain a typographical error. The minutes reflect the date of the meeting as February 8, whereas the minutes are actually from the April meeting. 7 This letter was introduced at the hearing and marked as D-7.
22-CA-467 6 the meeting and prepared the minutes, which were identified in court and
introduced as D-8. Both the minutes and Mr. Heitzmann’s testimony reflect
that Warren Harang was elected president; Jake Delhomme was elected first
vice-president; and Daniel Guidry was elected second vice-president. Mr.
Heitzmann testified that no objections were lodged to the election of officers
at the board meeting or prior to this lawsuit being filed.
Thereafter, in response to Ms. Pitre’s allegation that the annual
membership meeting for 2020 was cancelled, Mr. Heitzmann explained that
the annual membership meeting is “basically the awards ceremony for horse
of the year.” Mr. Heitzmann claimed that during his time as executive
director, there has never been a Board of Directors election in conjunction
with the annual membership meeting. Rather, the Board of Directors
election usually takes place in June of every year. Mr. Heitzmann then
explained the bylaw amendment relating to foal accreditation as follows:
Basically, the board has added two caveats to the old rules, per se, to make it short and simple. The old rules are still in place; however, they offer two caveats. One to where a mare can now go out of state every year to breed, but they have to be back by a certain date. And if they do so, they lose 50 percent of their breeder’s awards.
* * *
Just -- there’s another caveat to where a mare who lives within close proximity or just outside of the state can come here, spend some time, must breed to a Louisiana stallion, and still be eligible as an accredited Louisiana bred but also gives up 50 percent of their awards.
Mr. Heitzmann stated that, in the last decade, the Louisiana foal crop
has decreased every year, and that the membership revenue has likewise
decreased from about $100,000.00 in 2010 to $50,000.00 in 2020.8 Mr.
8 Defense counsel attempted to question Mr. Heitzmann about the purpose of the amendment, the differences in the bylaws change, and the possible favorable effects resulting from the amendments to the bylaws relating to foal accreditation, including raising the foal crop. The trial court sustained Ms. Pitre’s counsel’s objections to this line of questioning.
22-CA-467 7 Heitzmann further testified that some breeders have already applied for foal
accreditation based on the new amendments and have incurred contractual
obligations based on those amendments. Mr. Heitzmann, however,
explained that any breeder operating under the pre-amendment changes
would not be affected by the amendments.
At the conclusion of Mr. Heitzmann’s testimony, Ms. Pitre’s counsel
moved for a directed verdict under La. C.C.P. art. 1810. After considering
arguments of counsel, the trial court granted Ms. Pitre’s Motion for Directed
Verdict and further granted her “Petition for Quo Warranto, Declaratory
Judgment, Mandamus; and for Preliminary Injunction.” In granting the
petition, the trial court concluded that defendants did not meet their burden
of proof in the quo warranto action to prove that they did, in fact, “comply
with or that their officers are duly elected to have the authority to hold the
office in which it has.” In making this determination, the trial court
reasoned as follows:
All right. Considering the allegations made by Ms. Pitre that the LTBA failed to show that there were membership applications that were approved by the board, I reviewed the bylaws. And under Section 15 regarding a membership committee, it says that the president shall annually appoint a membership committee which shall consist of the president and a minimum of three members of the Board of Directors. The membership committee shall periodically review membership applications to the association for renewal or approval. The management of Louisiana Thoroughbred -- management of the LTBA will provide the committee with a computer-generated list of members, membership type, name of horse owned, percentage owned, dues status and last foal accredited. This list shall be available to the committee 120 days and 60 days prior to the election so the committee can submit to the entire Board of Directors for approval the membership list at least 30 days prior to any election.
Then it goes on to say: The membership committee shall provide a list of persons it feels should be approved as members to the secretary of treasurer for approval by the Board of Directors. For a member to vote, his membership shall be approved at least 30 days prior to any election.
22-CA-467 8 I read the minutes. I understand the allegation here is that there was no list of people that were approved, yet they were on the voting list is, from what I understand, the allegation to be. I haven’t seen either one of those lists because they weren’t produced in this hearing. I understand what the objection is. But, however, when I read the minutes, the minutes state that only one list was done, and that was the first list described in that, which is the members who would be allowed to vote. My understanding is, is there is no list of persons to be approved and some of the people never actually went through the formal approval vote or approval process. And I have not seen anything to rebut that allegation in these proceedings.
Also, Section 16 says that any committee, including the executive committee, shall keep minutes, records and shall report its activities into each regular meeting of the Board of Directors any such time as required by the board. And my understanding is that there are no minutes from any -- from the membership committee that would tell us who was approved or who wasn’t approved.
Okay. In addition when I look at the membership -- and this is why I think the importance of the list -- of the two lists are important is that one can be a member by virtue -- or an entity can be a member as long as its voting right is given to a regular member or designated to a regular member. And so in order for an entity to have a voting right of its members, partners or shareholders, they have to provide -- they have to comply with Part A, which is to designate one member, partner or shareholder with the right to vote, and that person designated must be a dues-paying regular member. However, they will only be entitled to one vote. No double dipping.
So the other problem I have with it is I don’t see in the documents that I’ve been given where the persons who were designated by the LLC are, in fact, regular members as well by virtue of another application. That, too, was not submitted to the Court. And so I don’t believe that, at this time, that Louisiana Thoroughbred Breeders Association has met its burden in the quo warranto action to prove that they did, in fact, comply with or that their officers are duly elected to have the authority to hold the office in which it has.
Thereafter, the trial court vacated the board election, the election of
officers, and all actions of the board subsequent to the election. The trial
court also issued a mandamus ordering the board to conduct a new election
22-CA-467 9 under the supervision of a court-appointed arbitration panel and ordered that
“during the pendency of the new election, the affairs of the LTBA shall be
vested in the previous members of the board whose authority shall be limited
solely to affecting a new election and conducting the ordinary day-to-day
activities of the LTBA and who shall not take any other action, alter, amend,
appeal or adopt any new bylaws except those necessary to effect the order of
this Court.” The court further prohibited defendants from entering into any
agreements or contracts on behalf of the LTBA outside of the routine
ordinary and regular course of business and enjoined “defendants from
conducting any activity of behalf of the LTBA or otherwise holding
themselves out as members or officers of the board and suspending the
effect of the amendment or the modified amendment and the effects of any
other acts of the LTBA on which the defendants voted or are otherwise
involved.” The court also awarded costs and attorney’s fees to be submitted
in a detailed bill within ten days. On March 25, 2021, the trial court signed a
written judgment in accordance with its oral ruling and awarded attorney
fees, costs, and expenses in the amount of $90,504.49.9
Defendants were ultimately granted a suspensive appeal.10 On appeal,
defendants set forth the following assignments of error:
1. The trial court erred as a matter of law and fact in denying Appellants’ exception of no cause of action as to Board members Warren Harang, III and Jake Delhomme.
2. The trial court erred as a matter of law and fact in denying Appellants’ exception of prescription to Ms. Pitre’s challenge to the validity of prior Board’s certification of the members eligible to vote in the June 2020 election.
9 The judgment was amended on April 5, 2021, to correct the inadvertent omission of the second page of the judgment. 10 Subsequent to the filing of defendants’ appeal, this Court, on January 13, 2023, issued an order directing the trial court to amend its March 25, 2021 judgment “to include all of the appropriate and necessary decretal language, specifically the language of the omitted second page of the proposed judgment.” This order was complied with, and the appeal proceeded.
22-CA-467 10 3. The trial court erred as a matter of law and fact in declaring Mr. Guidry and Mr. Tillson ineligible to serve on the Board based on their membership status.
4. The trial court erred as a matter of law and fact by exceeding the scope of a quo warranto remedy to nullify the prior Board’s certification of members eligible to vote and enjoin the foal accreditation amendments and by granting mandatory injunctive relief in the absence of sufficient allegations or proof of irreparable injury.
5. The trial court erred as a matter of law and fact in awarding attorney’s fees and in failing to determine the reasonableness of the fees.
DISCUSSION
In the present case, we find merit to defendants’ arguments relating to
the trial court’s improper granting of the quo warranto petition.
Accordingly, we decline to address each specific argument raised by
defendants, but rather, we focus our attention on the sufficiency of the
evidence produced at the quo warranto hearing.
Generally, in civil proceedings, the determination of whether a party
has carried his burden of proof by a preponderance of the evidence such that
he is entitled to judgment in his favor will involve a shifting of the burden of
proof between the plaintiff and the defendant. Once the party with the initial
burden of proof makes a prima facie showing that he has sustained his
burden of proof, the burden shifts to the opposing party to present rebuttal
evidence that tends to negate his opponent’s evidence. In this manner, the
trier-of-fact considers and weighs all of the evidence presented to determine
whether the party with the burden of proof has carried his burden by
showing that the truth of his assertions weigh in his favor and against his
opponent by a preponderance of the evidence (i.e., more likely than not),
such that he is entitled to judgment in his favor.
22-CA-467 11 Despite this general paradigm of the shifting of the burden of proof in
civil proceedings, the Louisiana Code of Civil Procedure does recognize that
there are instances where the party not having the initial burden of proof
may be entitled to judgment in his favor without the necessity of presenting
evidence to rebut his opponent’s evidence. Those procedures are found in
La. C.C.P. art. 1810, directed verdicts in jury trials,11 and La. C.C.P. art.
1672(B), involuntary dismissals in judge trials.12
In this case, upon motion of Ms. Pitre, the trial court granted her
Motion for Directed Verdict and ruled in her favor. While we recognize that
a Motion for Directed Verdict was erroneous in this non-jury trial, we look
past the styling of the motion to determine its substance, which was a
request by Ms. Pitre for judgment in her favor based upon a finding that,
upon the facts and law, defendants, who had the initial burden of proof, had
shown no right to relief such that the burden did not shift to Ms. Pitre to
present rebuttal evidence. In granting Ms. Pitre’s Motion for Directed
Verdict, the trial court of necessity had to determine that defendants failed to
make a prima facie showing on their initial burden of proof. In this regard,
we find that the trial court legally erred in holding defendants to a higher
burden of persuasion than that contemplated by the quo warranto article,
thus necessitating that we vacate the judgment of the trial court.
11 La. C.C.P. art. 1810 provides: A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict that is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefore. The order of the court granting a motion for a directed verdict is effective without any assent of the jury. 12 La. C.C.P. art. 1672(B) provides: In an action tried by the court without a jury, after the plaintiff has completed the presentation of his evidence, any party, without waiving his right to offer evidence in the event the motion is not granted, may move for a dismissal of the action as to him on the ground that upon the facts and law, the plaintiff has shown no right to relief. The court may then determine the facts and render judgment against the plaintiff and in favor of the moving party or may decline to render any judgment until the close of all the evidence.
22-CA-467 12 Quo warranto is defined in La. C.C.P. art. 3901 as “a writ directing an
individual to show by what authority he claims or holds public office, or
office in a corporation or limited liability company, or directing a
corporation or limited liability company to show by what authority it
exercises certain powers.” The writ of quo warranto is narrow in scope and
is to be given only a limited use, which is to prevent usurpation of office or
of powers.13 In a quo warranto action, the individual defendant has the
burden of showing by what authority he claims or holds office in the
corporation. Camillus Specialty Hosp., L.L.C. v. Riccio, 13-1172 (La. App.
4 Cir. 1/30/14), 133 So.3d 287, 291; Canedo v. Vicari, 11-1116 (La. App. 5
Cir. 5/8/12), 99 So.3d 64, 68.
The relief to be granted by a writ of quo warranto is also limited.
Camillus Specialty Hosp., L.L.C. v. Riccio, 133 So.3d at 291. If the court
determines that a person is holding an office without authority, the judgment
shall forbid him to do so. The judgment may further declare who is entitled
to the office and may direct an election when necessary. When the court
finds that a corporation or limited liability company is exceeding its powers,
the judgment shall prohibit it from doing so. La. C.C.P. art. 3902. Given
the narrow, limited nature of the writ, the provisions of Article 3902 set out
the exclusive means of relief allowable on an application for a writ of quo
warranto. Camillus Specialty Hosp., L.L.C. v. Riccio, 133 So.3d at 291.
However, if it is determined that a person holds office by virtue of a valid
election, the inquiry ceases, and the writ should be dismissed. Schexnayder
v. Yolande Schexnayder & Son, Inc., 12-885 (La. App. 5 Cir. 5/23/13), 119
So.3d 624. 628.
13 Merriam-Webster dictionary defines the verb “usurp” as “to seize and hold (office, place, functions, powers, etc.) in possession by force or without right; to take or make use of without right; to take the place of by or as if by force.”
22-CA-467 13 In this case, Ms. Pitre, by way of her Petition for Quo Warranto,
challenged the authority to hold office of all four of the declared winners of
the June 2020 Board of Directors election. Although Ms. Pitre made
specific and individualized allegations against Mr. Tillson and Mr. Guidry
regarding their eligibility to serve on the board due to their alleged lack of
regular membership in the LTBA, she made no specific and individualized
allegations against Mr. Murrell and Mr. Hernandez regarding their eligibility
to serve on the board. Consequently, even if the trial court found merit to
the lack of eligibility allegations against Mr. Tillson and Mr. Guidry, that
would not have been grounds to deprive Mr. Murrell and Mr. Hernandez of
their elected positions on the Board of Directors. Therefore, because the
trial court vacated the elections of all four of the declared winners of the
June 2020 Board of Directors election, it is apparent that it found merit to
Ms. Pitre’s allegations as to irregularities as to eligible voters and/or
irregularities with the election procedure itself. And because the trial court
rendered judgment on Ms. Pitre’s Motion for Directed Verdict, it is
necessary for us to examine the evidence presented by defendants regarding
these allegations to determine whether defendants failed to make a prima
facie showing on their initial burden of proof such that Ms. Pitre was entitled
to judgment without the necessity of presenting any rebuttal evidence.
At the hearing, defendants presented the testimony of Mr. Heitzmann,
the executive director and secretary-treasurer of the LTBA. Regarding the
June 2020 election at issue, Mr. Heitzmann testified that, in accordance with
his usual procedure, he had one of his workers compile the membership list
of the voting members, including the lifetime and regular members. On
April 2, 2020, he emailed this list to the executive committee to be placed on
22-CA-467 14 the agenda for the April Board of Directors meeting. The minutes of the
April 2020 Board of Directors meeting contain the following entry:
Committee Reports:
Membership & Nominating Committee: Charlotte Clavier – Chairperson
Charlotte presented to the board the list of voters eligible to cast a vote in the upcoming Board election. Hearing no objections Charlotte made a motion to approve the list as presented. This motion was seconded by Neal McFadden, which was voted on and passed unanimously.
Charlotte nominated Danny Guidry, Jim Montgomery, Val Murrell, Michele Rodriguez, Dex Comardelle, and Lynn Thibodeaux Sr. to run for the Board. Michelle LaVoice seconded the nominations, which passed unanimously.
…
Roger informed the board that a letter will be sent to the members of the association notifying them of the election, stating who has been nominated by the board, and asking for additional nominees. This letter is scheduled to be mailed on April 17, 2020. (Emphasis in original)
Mr. Heitzmann testified that no objection was lodged against any
voter on the list by either a member of the LTBA or any member of the
board until Ms. Pitre filed her Petition for Quo Warranto in January of 2021,
over six months after the election. He further confirmed that, as reflected in
the introduced minutes, the membership list was unanimously approved by
the Board of Directors at the April 7, 2020 meeting. This list was then sent
to MK Elections, who sent the ballots to the membership on June 1, 2020.
After the close of the election on June 30, 2020, MK Elections tallied the
results and sent them to Mr. Heitzmann.
These results, which were introduced at the hearing, reflect that 301
ballots were cast, and that the four persons receiving the highest number of
votes were: Val Murrell, David Tillson, Daniel Guidry, and Keith
22-CA-467 15 Hernandez. We find, through the testimony of Mr. Heitzmann regarding the
election procedure used, as confirmed by the minutes of the Board of
Directors meeting, and the evidence, that these four individuals received the
highest number of votes in the election, they made a prima facie showing of
their authority for holding the positions as members of the Board of
Directors of the LTBA. See English Turn Property Owners Association v.
Taranto, 16-319 (La. App. 4 Cir. 4/19/17), 219 So.3d 381, writ denied, 17-
1100 (La. 10/16/17), 318 So.3d 702 (appellate court found that the
defendants showed the authority for their holding the positions of members
of the Board of Directors based on the election results contained in the
record showing the number of ballots cast and the individuals receiving the
highest number of votes for election to the Board of Directors, stating: “By
receiving the highest number of votes and thereby winning the election,
defendants have shown the authority for holding their positions of members
of the Board of Directors of ETPOA”).
We further find that by granting Ms. Pitre’s Motion for Directed
Verdict, the trial court legally erred by holding the defendants to a higher
burden of persuasion than that which is contemplated in a quo warranto
proceeding. Rather than grant the Motion for Directed Verdict, the trial
court should have shifted the burden of proof to Ms. Pitre to prove her
allegations regarding allegedly ineligible voters voting in the election and
alleged procedural errors that may have been substantial enough to render
the entire election invalid.
We acknowledge that in a quo warranto proceeding seeking to “oust
directors of a corporation, the court may investigate whether or not the votes
were legally cast.” Thornton v. Carthon, 47, 948 (La. App. 2 Cir. 5/15/13),
114 So.3d 554, 560, writ denied, 13-1785 (La. 11/1/13), 125 So.3d 435.
22-CA-467 16 However, we find that the burden imposed on the defendants – to basically
prove the qualifications of the members who voted in the election – goes
beyond what is contemplated in a quo warranto action.14 Because the
remainder of the relief granted by the trial court was predicated upon its
erroneous granting of Ms. Pitre’s Motion for Directed Verdict, we pretermit
any discussions of the remainder of Ms. Pitre’s allegations regarding the
election of officers and adoptions of the amendments to the LTBA bylaws.
CONCLUSION
Having found that the trial court legally erred in granting Ms. Pitre’s
Motion for Directed Verdict regarding the Board of Directors election, and
finding the remainder of its judgment to be predicated on vacating the Board
of Directors election, we accordingly vacate the entire judgment of the trial
court and remand the matter for further proceedings consistent with this
JUDGMENT VACATED; REMANDED
14 If the initial burden were on the defendant in a quo warranto proceeding to disprove such allegations, we recognize that could potentially create a near impossible burden for such defendant; for example, in a statewide election for public office, the officially declared winner of such election, faced with a quo warranto challenge based upon general allegations of ineligible voters voting in the election, in order to survive a Motion for Directed Verdict, would have to prove that tens of thousands of voters in the election were in fact eligible to vote, rather than the challenger proving that ineligible voters did in fact vote in the election.
22-CA-467 17 LORA PITRE NO. 22-CA-467
LOUISIANA THOROUGHBRED COURT OF APPEAL BREEDERS ASSOCIATION, WARREN HARANG, III, JAKE DELHOMME, STATE OF LOUISIANA DANIEL GUIDRY, VAL MURRELL, DAVID TILLSON, AND KEITH HERNANDEZ
JOHNSON, J., DISSENTS WITH REASONS
I, respectfully, dissent from the majority opinion for the following
reasons.
In this matter, Lora Pitre filed a “Petition for Quo Warranto,
Declaratory Judgment, Mandamus; and for Preliminary Injunction,” wherein
she alleged violations of the bylaws in conducting the June 2020 board
election. As stated in the majority opinion:
Ms. Pitre’s allegations fall into four basic categories: 1) specific and individualized allegations against Mr. Tillson and Mr. Guidry regarding their eligibility to serve on the board and as officers due to their alleged lack of regular membership in the LTBA; 2) general allegations that there were individuals who timely applied for membership in the LTBA, but whose applications were not taken up for approval and thus were denied the ability to vote in the Board of Directors election; 3) general allegations that there were individuals who did not comply with the approval procedure in the LTBA’s bylaws and/or pay their dues to the association, but were nevertheless allowed to vote in the Board of Directors election; and 4) general allegations that the prior Board of Directors and executive director failed to comply with all bylaw requirements for conducting the Board of Directors election. In her petition, Ms. Pitre requested that the court order defendants to appear and show by what authority each defendant claimed to hold office in the LTBA. She also requested a declaratory judgment vacating the board election, the election of officers, and the adoption of amendments to the foal accreditation provisions of the bylaws, mandamus relief ordering the board to conduct a new election under the supervision of a court-appointed arbitration panel, injunctive relief, and attorney’s fees and costs.
(Internal footnote omitted).
22-CA-467 1 The judgment at issue grants Ms. Pitre’s petition in toto. The trial
court found that the Board Election and the Election of Officers were null ab
initio, and any and all actions of that Board subsequent to the nullified
election were null. Although the judgment grants the quo warranto as a
cause of action in Ms. Pitre’s petition, it does not render any findings that
the Board members claiming the office were without authority or forbid
them to do so, which is required by La. C.C.P. art. 3902. Thus, the majority
opinion appropriately concludes, “Therefore, because the trial court vacated
the elections of all four of the declared winners of the June 2020 Board of
Directors elections, it is apparent that it found merit to Ms. Pitre’s
allegations as to irregularities as to eligible voters and/or irregularities with
the election procedure itself.”
In quo warranto proceedings to oust directors of a corporation, the
court may investigate whether or not the votes were legally cast. Thornton
v. Carthon, 47,948 (La. App. 2 Cir. 5/15/13), 114 So.3d 554, 560. At trial,
the judge made it clear to the parties that she was considering the validity of
the list of eligible voters. While the burden to prove the qualifications each
member who voted in the election may be improper to place on a defendant
for a quo warranto inquiry, it was proper to require Defendants to prove
they had followed the procedures of their election process. I find that
Defendants failed to meet their burden of proving that Louisiana
Thoroughbred Breeders Association (“LTBA”) even considered the
qualifications of the members who voted in the Board election.
Part B, Section 16 of LTBA’s bylaws states, “Committees. Any
committee, including the Executive Committee, shall keep minutes and
records and shall report its activities at each regular meeting of the Board of
Directors and at such other times as required by the board.” According to
22-CA-467 2 the minutes of the April 7, 2020 LTBA Board of Directors’ Meeting,
Charlotte Clavier, the Membership & Nominating Committee’s Chairperson,
presented the Board with the list of voters eligible to cast a vote in the
upcoming Board election. There were no objections to the list, and it passed
unanimously. Considering the fact that Ms. Pitre made general allegations
that there were individuals who timely applied for membership in the LTBA
but their applications were not taken up for approval and, thus, were denied
the ability to vote in the Board of Directors election, Defendants should have
presented evidence of LTBA’s process of determining the eligible voters—
an issue that was squarely presented to them in Ms. Pitre’s petition.
Defendants failed to present the minutes from the Membership &
Nominating Committee’s meeting that ultimately compiled the list of
eligible voters, which means Defendants failed to prove that the votes in the
Board election were legally cast. See, Thornton, supra.
Therefore, I am of the opinion that Defendants failed to meet their quo
warranto burden of proving the authority by which the Board claimed to
hold office. As a result, I would affirm the portion of the trial court’s
judgment that granted Ms. Pitre’s petition for quo warranto and nullified the
Board Election, Election of Officers, and subsequent actions of the Board of
Directors.
22-CA-467 3 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
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