NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
DOCKET NUMBER
2021 CA 1365
ROVER GROUP, INC.
VERSUS
v
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.", AND G.
THOMAS ARBOUR, W.T. WINFIELD, AAROLYN WHEELER, AND THE
COMMUNITY ASSOCIATION
FOR THE WELFARE OF SCHOOL CHILDREN
Decision Rendered: APR 0 8 2022
APPEALED FROM THE
19TH JUDICIAL DISTRICT COURT, SECTION 23
EAST BATON ROUGE PARISH, LOUISIANA
DOCKET NUMBER 645, 668
HONORABLE WILLIAM A. MORVANT, JUDGE PRESIDING
Terry L. Bonnie Attorney for Defendant -Appellant,
Baton Rouge, Louisiana Community Association for the Welfare
of School Children
Mark V. Marinoff Attorney for Plaintiff -Appellee,
Baton Rouge, Louisiana Rover Group, Inc.
Michael E. Platte Attorney for Defendant -Appellee,
Baton Rouge, Louisiana W.T. Winfield
BEFORE: MCDONALD, LANIER, AND WOLFE, JJ.
McDONALD, 3.
The Community Association for the Welfare of School Children, Inc. ( CAWSC)
appeals a judgment granting summary judgment to Rover Group, Inc. ( Rover) and
denying summary judgment to CAWSC. After review, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We adopt pertinent factual and procedural background from this court's prior
opinion in this suit, Rover Grp., Inc. v. Clark, 18- 1576 ( La. App. 1 Cir. 12/ 12/ 19), 291
So. 3d 699, 702, writ denied, 20- 00101 ( La. 3/ 9/ 20), 294 So. 3d 481 ( Roverl):
On May 27, 2014, [ Rover] entered into a Lease with an Option to Purchase
with [ 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 flied 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'. 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[.] ...
The judgment in the Quo Warranto Suit prohibited W.T. Winfield, Alfred
Williams, G. Thomas Arbour, and Aarolyn Wheeler from
conducting furtherbusiness 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, Harry
and Johnson, the new members of
or officers
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." 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'. Although styled as a reconventional demand,
the Clark Reconventional Demand actually asserted a reconventional
demand against Rover, a cross- claim against the Arbour defendants, 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 [ Rover Lease] 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. 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, 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....
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. 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.
On May 21, 2018, the] trial court ... 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 [ ruling] ... 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. ( Footnotes
omitted.)
Rover I,291 So. 3d at 702- 04.
The Clark defendants appealed from the June 13, 2018 judgment. On appeal, the
Roverlcourt vacated that judgment, insofar as it granted the exceptions of peremption
filed by the Arbour defendants and Rover, and remanded the matter to the trial court for
further proceedings. Roverl, 291 So. 3d at 710.
3
While the parties were litigating the issue of peremption, and before the trial court
ruled on that issue in the June 13, 2018 judgment, CAWSC' filed a motion for summary
judgment seeking dismissal of Rover's claims against it. After Rover I was decided in
December 2019, Rover filed an exception of prescription; a separate cross motion for
summary judgment seeking dismissal of CAWSC's reconventional demand; an objection
seeking to strike several exhibits CAWSC submitted as summary judgment evidence; and,
an opposition to CAWSC' s motion for summary judgment. In response, the Clark
defendants and/ or CAWSC filed numerous oppositions, reply memoranda, and motions.
On May 24, 2021, the trial court held a hearing on several issues, including the
cross motions for summary judgment. On June 15, 2021, the trial court signed a
judgment: denying CAWSC' s motion to continue; denying CAWSC' s motion to compel;
striking five exhibits included in CAWSC' s summary judgment evidence; denying CAWSC's
motion for summary judgment; granting Rover's cross motion for summary judgment;
granting a declaratory judgment that the Rover Lease was fully enforceable; granting
specific performance of the Rover Lease in Rover's favor; and ordering CAWSC to pay
Rover $ 50, 000 attorney fees plus costs. CAWSC appealed the June 15, 2021 judgment.
After this court questioned the finality of that judgment, the trial court signed an amended
judgment on February 8, 2022, the appellate record was supplemented with the amended
judgment, and this court maintained the appeal.
On appeal, CAWSC claims the trial court: abused its discretion in denying its motion
to continue; erred in deciding a declaratory judgment in summary fashion; erred in
granting Rover's motion for summary judgment; and, erred in denying its motion for
summary judgment.2
1 CAWSC is the party who filed the reconventional demand against Rover, but the motion for summary
judgment identifies the mover as " plaintiffs -in -reconvention, Gary Clark, et. al."
z On appeal, CAWSC also assigns error to the trial court's denial of its exception of no cause of action. If
CAWSC is referencing the trial court's June 28, 2017 denial of its March 23, 2017 exception, the record
shows CAWSC sought this court's review of that denial by supervisory writs, and this court denied same.
See Rover, Inc. v. Dr Gary Clark, et al., 17- 0945 ( La. App. 1 Cir. 7/ 27/ 17), 2017 CW 0945. In any event,
the trial court did not address an exception of no cause of action at the March 24, 2021 hearing or in the
June 15, 2021 judgment (amended February 8, 2022), which is the judgment that CAWSC appealed. As a
general rule, an appellate court will not consider issues that the trial court did not address or that a party
raises for the first time on appeal. Burniac v. Costner, 18- 1709 ( La. App. 1 Cir. 5/ 31/ 19), 277 So. 3d 1204,
1210. Accordingly, we pretermit this assignment of error.
4
DENIAL OF MOTION TO CONTINUE
CAWSC contends the trial court abused its discretion in denying its motion to
continue the summary judgment hearing, because it did not have adequate time to
conduct discovery. However, a trial court has wide discretion in the control of its docket,
case management, and the determination of whether a continuance should be granted.
Roverl, 291 So. 3d at 709. An appellate court will not disturb such a ruling unless there
is a clear showing the trial court abused its discretion. Id. At the beginning of the
summary judgment hearing herein, the trial court heard the parties' arguments as to the
need for a continuance and noted that the case had been pending for five years and the
information CAWSC sought in discovery was its own corporate records. After review, we
conclude the trial court did not abuse its discretion in denying the motion to continue.
SUMMARY JUDGMENT
CAWSC also contends the trial court erred in granting Rover' s cross motion for
summary judgment, in denying CAWSC' s motion for summary judgment, and in deciding
Rover's declaratory judgment action " in a summary fashion." We first note that "summary
proceedings" and " summary judgment proceedings" are not the same. Summary
proceedings are those conducted with rapidity, within court-ordered delays, without
citation, and without the observance of the formalities required in ordinary proceedings.
La. C. C. P. art. 2591. Conversely, summary judgment proceedings are not conducted with
rapidity, but are governed by statutorily -set deadlines, require citation, specific burdens
of proof, the filing of specific supporting documentation, and a noticed contradictory
hearing. See La. C. C. P. art. 966. Simply, there is no prohibition against granting
summary judgment in an action for declaratory judgment. Pride Network, Inc, v. Town
ofAmite City, 15- 1849 ( La. App. 1 Cir. 11/ 4/ 16), 2016 WL 6583737, * 2 ( unpublished).
CAWSC' s argument to the contrary is without merit.
Where there are cross motions for summary judgment raising the same issues,
this court can review the interlocutory denial of a summary judgment in addressing the
appeal of the grant of a cross motion for summary judgment. Huggins v. Amtrust Ins
Co. of Kansas, Inc., 20- 0516 ( La. App. 1 Cir. 12/ 30/ 20), 319 So. 3d 362, 365. Appellate
courts review the grant or denial of a motion for summary judgment de novo under the
5
same criteria governing the district court's determination of whether summary judgment
is appropriate. Id. After an opportunity for adequate discovery, a motion for summary
judgment shall be granted if the motion, memorandum, and supporting documents show
there is no genuine issue as to material fact and that the mover is entitled to judgment
as a matter of law. La. C. C. P. art. 966A( 3).
CAWSC' s motion for summary judgment sought to have Rover' s action dismissed,
arguing that CAWSC did not comply with the proper corporate formalities authorizing
W.T. Winfield and Alfred C. Williams to sign the Rover Lease, thus rendering the Rover
Lease unenforceable. Rover's cross motion for summary judgment sought a declaratory
judgment that the Rover Lease was indeed enforceable and ordering CAWSC to
specifically perform its obligations under the Rover Lease by conveying the North Foster
Drive property to Rover. After a de novo review of the admissible summary judgment
evidence, as explained below, we conclude the trial court properly granted summary
judgment to Rover and properly denied summary judgment to CAWSC.
In support of its cross motion, Rover introduced a copy of the Rover Lease, two
letters showing it attempted to exercise its option to purchase the North Foster Drive
property, CAWSC' s rejection of Rover's attempts to exercise the option, G. Thomas
Arbour' s affidavit ( attaching a transcript of June 29, 2015 meeting at which CAWSC
purportedly ratified the Rover Lease), and Caranza J. Guidry's affidavit, who is Rover's
president and chief executive officer, explaining Rover's compliance with the Rover Lease
and its failed attempts to exercise its option to purchase the North Foster Drive property
from CAWSC.
In support of its motion, CAWSC attempted to demonstrate that CAWSC' s Articles
of Incorporation and Bylaws required the CAWSC Board of Directors to take specified
action, including the issuance of a board resolution, authorizing Messrs. Winfield and
Williams to execute the Rover Lease on CAWSC' s behalf, and without such action, the
Rover Lease was unenforceable. However, Rover filed an objection to the admissibility
of several of CAWSC' s summary judgment exhibits, and the trial court specifically
excluded both the CAWSC Articles of Incorporation and the Bylaws ( as well as three other
documents) for non- compliance with La. C. C. P. art. 966A( 4). CAWSC did not challenge
2
the exclusion of these exhibits. Thus, CAWSC' s remaining summary judgment evidence
consisted solely of the Rover Lease itself and an affidavit by CAWSC Board member Jarvis
Antwine. In his affidavit, Mr. Antwine attested that: ( 1) he has been a member of the
CAWSC Board of Directors since 2003; ( 2) the CAWSC Board of Directors did not vote to
authorize Messrs. Winfield and Williams to sign the Rover Lease, and ( 3) he did not
receive a notice for a meeting in reference to CAWSC leasing the subject property to
Rover.
However, Mr. Antwine' s attestations alone do not create a genuine issue of
material fact as to the scope of authority Messrs. Winfield and Williams possessed.
Although the terms of CAWSC Articles of Incorporation and Bylaws may have required
certain formalities authorizing Messrs. Winfield and Williams to execute the Rover Lease,
the trial court struck these two exhibits from CAWSC' s summary judgment evidence, and
CAWSC cannot rely on these exhibits as proof of any material fact. Further, even though
these documents appear elsewhere in the record, we cannot consider those documents
in reviewing CAWSC' s motion, because they were not specifically filed in support of or in
opposition to the Rover or CAWSC motions for summary judgment. Huggins, 319 So. 3d
at 366- 67. CAWSC has filed no other summary judgment evidence showing that CAWSC
required a specific vote of the CAWSC Board or that a meeting was required before
Messrs. Winfield and Williams could bind CAWSC to the Rover Lease.
Moreover, even if CAWSC failed to adhere to required corporate formalities before
entering the Rover Lease, Rover's summary judgment evidence demonstrates that the
CAWSC Board of Directors in place on June 29, 2015, ratified the Rover Lease, curing any
alleged deficiencies in its execution. In his affidavit, Mr. Arbour, a CAWSC board member
in 2014 when CAWSC executed the Rover Lease, attested that he was still a CAWSC
Board member in June 2015. 3 He further attested that the Rover Lease ' was an act of
CAWSC" and " was in fact ratified by the Board of Directors of CAWSC, as evidenced by
an attached] Certified Transcript of the Minutes of the CAWSC Board meeting of June
3 The June 29, 2015 CAWSC Board meeting occurred before the signing of the July 13, 2015 judgment in
the Quo Warranto Suit, wherein W.T. Winfield, Alfred Williams, G. Thomas Arbour, and Aarolyn Wheeler
were prohibited from conducting further business in CAWSC' s name. The Quo Warranto Suit was the
subject of appeal in Antwine v. Winfle/d, 15- 1850 ( La. App. 1 Cir. 9/ 16/ 16), 203 So. 3d 454.
7
29, 2015." The attached transcript indeed confirms that, on June 29, 2015, several new
members were elected to the CAWSC Board of Directors and that board voted to ratify
the Rover Lease.
CONCLUSION
In sum, Rover has submitted valid summary judgment evidence establishing that
the Rover Lease was enforceable, and CAWSC has presented no admissible evidence
creating a genuine issue of material fact as to the Rover Lease' s validity or to the 2015
CAWSC ratification of the Rover Lease. Rover's motion, memorandum, and supporting
documents show there is no genuine issue of material fact, and Rover is entitled to
summary judgment as a matter of law. See La. C. C. P. art. 966A( 3). We affirm the trial
court's February 8, 2022 amended judgment. We issue this memorandum opinion in
compliance with the Uniform Rules — Courts of Appeal, Rule 2- 16. 1B. We assess costs of
the appeal to The Community Association for the Welfare of School Children.
AFFIRMED.