207 So. 3d 414
La. Ct. App.2016Background
- Mount Zion Baptist Association (MZBA), an unincorporated association, was named as a plaintiff seeking injunctive relief to prevent alienation or sale of plots in the historic Revilletown Cemetery; a separate nonprofit corporation (MZBA Inc.) had earlier filed a similar petition.
- Defendants included Mt. Zion Baptist Church #1 of Revilletown Park and later Axiall (successor to Georgia Gulf), which intervened claiming ownership of the cemetery.
- Plaintiffs amended to add Janice Dickerson and Vivian Ann Craig Chiphe as individual plaintiffs and as representatives of MZBA; neither was alleged to be an elected officer or otherwise authorized by MZBA.
- Defendants filed a dilatory exception asserting lack of procedural capacity under La. C.C.P. art. 689 (an unincorporated association must appear through its president or other authorized officer).
- The trial court sustained the exception and dismissed MZBA for failing to amend to name its president or authorized officer; the dismissal was originally with prejudice but the appellate court amended it to be without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MZBA may prosecute suit through individuals (Dickerson & Chiphe) as representatives/heirs | Dickerson and Chiphe are heirs of an original member and have relatives buried in the cemetery, giving them representative authority to sue for MZBA | MZBA did not appear through its president or an authorized officer as required by La. C.C.P. art. 689; no election or authorization by membership shown | Court held MZBA lacked procedural capacity because no president or authorized officer appeared; Dickerson and Chiphe lacked shown authority to represent MZBA |
| Whether MZBA Inc. could continue MZBA's purposes under La. R.S. 12:515 and thus prosecute the suit | MZBA Inc. asserted it could continue the association’s purpose and act on its behalf under R.S. 12:515 | Defendants noted absence of any allegation or proof that MZBA had dissolved or that MZBA Inc. was acting under R.S. 12:515 | Court found plaintiffs failed to plead or prove applicability of R.S. 12:515; no error in dismissal for lack of procedural capacity |
Key Cases Cited
- Woodard v. Upp, 142 So.3d 14 (La. App. 1st Cir.) (defines dilatory exception for lack of procedural capacity and standard of review)
- Bright Morning Star Missionary Baptist Church v. Brown, 877 So.2d 1003 (La. App. 2d Cir.) (officers authorized by majority vote may file suit for association)
- Lemoine v. Roberson, 366 So.2d 1009 (La. App. 1st Cir.) (dismissal for failure to comply with order on dilatory exception must be without prejudice)
- Teamsters Local Union No. 5 v. Tasty Baking Co., 124 So.2d 355 (La. App. 1st Cir.) (historical rule on unincorporated associations suing prior to Art. 689)
- Humphreys v. Bennett Oil Corp., 197 So. 222 (La.) (discusses individual interest vs. representative authority)