Linda Sue Chauvin Webster, individually and on behalf of the Succession of Joseph Cameron Webster, The Darrell Webster Trust, and The Robert Webster Trust v. David H. Webster and Twin Brothers Marine, L.L.C ( 2022 )

STATE OF LOUISIANA
C.OURT OF APPEAL
FIRST CIRCUIT
2021CA1224
LINDA SUE CHAUVIN WEBSTER, INDIVIDUALLY AND ON BEHALF OF
THE SUCCESSION OF JOSEPH CAMERON WEBSTER
VERSUS
DA YID H. WEBSTER AND TWIN BROTHERS MARINE, L.L.C.
Judgment rendered:. -JUL 0 8__ 2022'
*****
On Appeal from the
Sixteenth Judicial District Court
In and for the Parish of St. Mary
State of Louisiana
No. 135,301
The Honorable Anthony Saleme, Jr., Judge Presiding
*****
Justin Burton Schmidt Attorneys for Defendant/Appellant
New Orleans, Louisiana David H. Webster
Kyle M. Bacon Attorneys for Plaintiffs/Appellees
Lafayette, Louisiana Linda Sue Chauvin Webster,
and individually and in her capacity as the
Andrew R. Lee duly confirmed independent Executor
John R. Guenard of the Succession of Joseph Cameron
P.J. Kee Webster
New Orleans, Louisiana
Gerard J. Bourgeois Attorneys for Defendant/Appellee
William E. Bourgeois Twin Brothers Marine, L.L.C.
Morgan City, Louisiana
*****
BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.
HOLDRIDGE, J.
This appeal follows the death of Joseph Cameron Webster (Cameron), one of
two manager members of Twin Brothers Marine, L.L.C. (TBM). Petitioners, the
decedent's wife, Linda Sue Chauvin Webster, in her individual capacity and in her
capacity as succession representative; and two trusts, the Robert Webster Trust (RW
Trust) and the Darrell Webster Trust (DW Trust), in their capacity as members of
TBM, filed suit against TBM and the remaining manager member, the decedent's
surviving twin brother, David H. Webster. The petition sought, amongst other relief,
to have Cameron's estate recognized as a member ofTBM with full member rights,
including the right to vote. The district court granted relief to petitioners, and
defendants have appealed. Since then, however, petitioners have filed a motion to
dismiss this appeal as moot, claiming certain post-judgment events have affected
IBM's operations and any relief granted in this appeal would have no practical
effect. While defendants have not expressly conceded mootness, they have not filed
any opposition to the motion to dismiss or challenged the alleged facts supporting
the motion. Due to the current posture of this case, we set aside the district court's
ruling and remand this matter for the district court to determine, after a contradictory
hearing, whether the case has become moot.
FACTUAL AND PROCEDURAL BACKGROUND
TBM is a privately-held limited liability company that was formed and
managed by Cameron and David. 1 On March 29, 2000, the then-members 2 ofTBM
1
The formation and operation oflimited liability companies in Louisiana is governed by La. R.S.
12:1301, et seq. A limited liability company may conduct business for any lawful purpose. La.
R.S. 12:1302. A limited liability company is authorized to conduct business until its dissolution.
See La. R.S. 12:1334.
2
At that time, other than Cameron and David, there were two other members of TBM that owned
a small portion of membership units, Houston A. Marshall and Farrell M. Luke. Houston and
Farrell divested themselves of their interests in TBM years before Cameron's death.
2
executed its original organizational documents, the Articles of Organization and an
Operating Agreement, naming Cameron and David, the majority owners of TBM,
as co-managers. Three months later, Cameron and David donated a portion of their
respective ownership interests by donating membership units (units) to separate
trusts for each of their children, thereby admitting these new members to TBM: the
RW Trust, the OW Trust, the Jason Webster Trust (the JW Trust), the Paul Webster
Trust (the PW Trust), and the Melynda Webster Leleux Trust (the MWL Trust).
Robert and Darrell Webster are the sons of Cameron and Linda Sue, and Jason, Paul
and Melynda are David's children. Cameron transferred 11.175 units to each of his
children's trusts, and David transferred 7.45 units to each of his children's trusts.
Thus, 22.35 units were transferred per stirpes to the family trusts, keeping the
amount of unit ownerships even between each brother's respective family members.
After these transfers, David and Cameron each held 175.65 units in TBM.
Thereafter, from 2002 through 2009, several members sold a portion of their units
back to TBM, reducing the number of outstanding units. It is undisputed that David
sold various small portions of his units back to TBM over the years prior to
Cameron's death in November 2018.
From the creation ofTBM until Cameron's death, Cameron and David served
as co-managers. The Articles of Organization established a manager-managed
company that provided broad powers to both Cameron and David. According to the
district court testimony of Linda Sue Chauvin Webster, her husband, Cameron
worked at TBM's fabrication yard daily. He managed the yard, and he was
physically on TBM's premises every day for forty-nine to fifty years. Cameron's
son, Darrell, testified that David initially worked at the fabrication yard, but then
later moved to a satellite sales office; David spoke to Cameron daily about business
functions, but he was not directly involved in the daily operations of the fabrication
3
yard for the last twenty years prior to Cameron's death. Darrell worked with
Cameron, as a company employee, for approximately twenty-seven years. Darrell
continued to work for TBM, in his then capacity as general manager of the
fabrication yard, after his father's death.
As of the time of Cameron's death in November 2018, TBM had seven
members, the two Webster brothers and the five trusts. It is undisputed that at this
time, unit ownership was as follows:
Membership Units Ownership o/o
J. Cameron Webster 175.65 48.47924%
David H. Webster 145.96 40.2848o/o
RWTrust 1 l.18 3.0857%
Darrell Webster Trust 1 l.18 3.0857%
JW Trust 7.45 2.0562%
PW Trust 5.45 1.5042%
MWL Trust 5.45 1.5042°/o
The parties do not dispute that Cameron died testate, and Linda Sue was duly
confirmed as the independent executor of the Succession of J. Cameron Webster in
the proceeding captioned Succession of Joseph Cameron Webster, 16th Judicial
District Court, Docket No. 21118 (the Succession Proceeding). When the district
court signed the judgment from which defendants have appealed, the Succession
Proceeding was pending, and the property comprising Cameron's estate had not been
distributed. Under the terms of TBM's original organizational documents, David
was to continue as manager ofTBM after Cameron's death. At some point, conflict
developed between David and Linda Sue and, likewise, between David and Darrell.
Ultimately, David informed Darrell that he was going to bring in his son, Jason, to
take over Darrell's position. In response, Darrell told David, "I quit." He explained
that his "ability to perform [his] job duties was taken away from [him]."
4
On September 4, 2020, David unilaterally amended TBM's Articles of
Organization, providing major amendments to most of its provisions, particularly
regarding management and member voting. 3 In November 2020, Linda Sue,
individually and as independent executor of the Succession, and the RW and DW
Trusts sought: 1) a writ of mandamus ordering David and TBM to: a) recognize
Cameron's Estate as a member of TBM; b) hold an annual meeting; c) rescind
documents that purported to amend TBM' s original organizational documents; and
2) a writ of quo warranto, directing David and TBM to show by what authority they
have amended the original organizational documents. 4
In response, David and TBM filed a dilatory exception, urging the objection
of unauthorized use of summary proceeding, and a peremptory exception, urging the
objection of no cause of action. Additionally, defendants filed a peremptory
exception raising the objection of no right of action as to only the "[c]auses of
[a)ction" seeking mandamus relief. A hearing was held, which addressed the
defendants' objections and petitioners' requested relief.
On March 31, 2021, the district court signed a judgment, denying all of
defendants' objections and granting the writ of mandamus and quo warranto in favor
of plaintiffs and against defendants. 5 The judgment further decreed: I) Cameron's
3
The Amended Articles of Organization provided David would continue as the sole member and
manager of TBM. These amendments further provided: 1) the Board of Managers shall consist of
David, a juridical entity comprised of the family members of David, and a juridical entity
comprised of the family members of Cameron, and 2) David "shall have three ... votes and each
of the respective families' juridical entitites shall have one vote for a total of five ... votes from
the Board of Managers."
4
The two trusts were named as petitioners in an amending petition.
5
In reasons for judgment, the district court stated that because members of TBM have the right to
vote in proportion to his or her membership interest/units in the company, the determinative issue
was whether the estate was a member of the company. The district court found that without
Cameron's estate being a member of TBM, it could not properly operate under its original
organizational documents, and as such the estate was entitled to be recognized as a member of
TBM until the succession proceedings were judicially concluded. The court also found: I) the DW
and RW Trusts are full members of TBM with voting rights; 2) David had no authority to amend
the original organizational documents since there was no vote by a majority interest of the
5
Estate is "hereby recognized as a member of [TBM] with full rights as a member,
including the right to vote"; and 2) the September 4, 2020 Amended Articles of
Organization are "null and void." The judgment also ordered David, as sole manager
of TBM, to call and hold an annual meeting of the members of TBM to conduct
business in accordance with the Jaw and the original organizational documents of
TBM. 6
On April 20, 2021, TBM filed a motion to substitute counsel. The motion
requested the substitution of William E. Bourgeois and Gerard J. Bourgeois of
Bourgeois Law, L.L.C. (Bourgeois), as counsel in lieu of existing counsel, Justin B.
Schmidt (Schmidt}, who was practicing with Breazeale, Sachse & Wilson, L.L.P.
membership w1its in favor of such action; and 3) David, as sole manager, failed to timely call and
hold an annual meeting ofTBM, and he was required to do so.
6
On April 22, 2021, Schmidt on behalf of David and TBM timely filed a motion for new trial,
urging the court's March 31, 2021 judgment was contrary to law. The district court denied the
motion for new trial by a May 12, 2021 judgment. Also, a judgment dated May 12, 2021, provided
as follows:
WHEREAS, in the Reasons for Judgment signed on March 31, 2021, this
Court fowid as follows:
The Court finds that based upon the trial testimony and acquiescence
of cowisel for Defendants, the [DW Trust and the RW Trust] are full
members of [TBM]. These two trusts have voting rights as they were
properly voted in as Members of [TBM] prior to the death of
[Cameron] ....
WHEREAS, the parties have agreed that all five of the Trusts admitted as
Company Members should be recognized in the Court's Judgment as such.
NOW, THEREFORE:
IT IS ORDERED, ADJUDGED AND DECREED ... that the [DW Trust,
the RW Trust, the JW Trust, the PW Trust, and the MWL Trust] ... are hereby
recognized as members of [TBM] with full rights as members, including but not
limited to the right to vote.
Pretermitting any discussion regarding the validity of this judgment, we note that while counsel
for appellant had urged in the proceedings below that the individual trusts were members that did
not have voting rights, this argwnent has not been advanced on appeal.
6
(BS&W) at that time. 7 The motion stated that in light of the district court's March
31, 2021 judgment, TBM had the right to be operated by a majority of its members
and to select its own counsel and that it desired to substitute counsel on an expedited
basis to limit further damage to TBM. The motion further stated: 1) a majority of
TBM members by written consent have amended the Articles of Organization and
the Operating Agreement, thereby removing David as manager and naming Darrell
as "sole manager"; and 2) at Darrell's direction, Bourgeois informed Schmidt that
TBM had terminated him and he had no further authority to act on behalf of TBM.
Schmidt, on behalf of David and TBM, opposed the motion to substitute
counsel, urging the defendants had filed a motion for new trial and that the judgment
signed on March 31, 2021, did not recognize Linda Sue or Darrell as a Manager for
TBM or address how a manager other than David could have been installed for TBM.
Bourgeois responded that a pending motion for new trial does not suspend the
district court judgment8 and that the majority members had properly executed their
voting rights by amending the Operating Agreement, removing David, and installing
Darrell. The motion to substitute counsel was ultimately granted on May 26, 2021. 9
7
On December 1, 2021, David R. Kelly, general counsel with BS&W, notified this Court that as
of November 14, 2021, Mr. Schmidt was no longer practicing law with BS&W, and that pursuant
to David's instructions, Schmidt continues to represent David in this matter rather than BS&W.
8
Since a party has thirty days after the denial of a motion for new trial to obtain a suspensive
appeal, a properly filed motion for new trial does effectively suspend the district court judgment
where a suspensive appeal is taken. La. C.C.P. art. 2123(A)(2).
9
Defendants filed a notice of intent to apply for supervisory writs, seeking review of the district
court's ruling granting the motion to substitute counsel and requesting a stay. On June 4, 2021, the
district court denied defendants' request for a stay. Defendants filed a writ application with this
Court. Because the writ application was missing documentation, this court did not consider it, but
afforded David until November 8, 2021 to refile a writ application with the missing documentation.
See Webster v Webster, 2021-0889 (La. App. 1 Cir. 10/25/21), 2021 WL 4948344 (unpublished
writ action). David did not refile his application to seek review of the May 28, 2021 judgment.
7
On May 25, 2021, Schmidt, on behalf of David and TBM, filed a motion to
suspensively appeal the March 31, 2021 judgment. 10 TBM, via Bourgeois, filed a
motion with this Court, seeking to withdraw and dismiss the suspensive appeal
purportedly filed on behalf of TBM dismissed as to it, urging Schmidt had no
authority to appeal on behalf of TBM. 11 Defendants did not oppose this motion.
Although the initial motion for appeal filed by Schmidt was filed on behalf of both
David and TBM and the district court's order granting the suspensive appeal referred
to both parties, the only appellate brief filed by Schmidt was filed solely on behalf
of David.
On appeal, David asserts the district court erred by incorrectly applying the
law to the facts of this case, warranting reversal. More specifically, David asserts the
court erred by: 1) denying his declinatory exception raising the objection of
unauthorized summary proceedings; 2) finding the Estate was a member of TBM;
3) finding TBM was "member-managed," with each member having a vote based
upon ownership interest; 4) assigning any significance to David's attempt to amend
the Articles of Organization, and 5) considering extraneous testimony to interpret
the unambiguous terms of TBM's original organizational documents. David prays
for the district court's judgment to be reversed and for him to be recognized as the
sole manager of TBM, with all authority granted to that position in the original
organizational documents.
Before filing their appellee brief, petitioners filed a motion to dismiss this
appeal as moot, urging events that have occurred in the Succession Proceedings after
10
On October 15, 2021, petitioners timely filed with this Court a motion to dismiss the suspensive
appeal, or, alternatively, to dismiss in part and convert part of the suspensive appeal to a devolutive
appeal. On January 12, 2022, disposition of the motion was referred to this panel. See Webster v.
Webster, 2021-1224 (La. !st Cir. l/12/2022)(unpublished action).
11
Disposition of the motion was referred to this panel on January 12, 2022. See Webster v.
Webster, 2021-1224 (La. 1st Cir. l/12/2022)(unpublished action).
8
the district court signed the March 31, 2021 judgment have substantially affected
TBM's operations. Petitioners assert any relief granted to defendants in this appeal
would have no practical effect on TBM's business affairs. Petitioners have
previously maintained that fundamental membership and management changes have
occurred. Petitioners now maintain the DW and RW Trusts have a majority share of
TBM' s units and they have admitted the Estate as a member and they have confirmed
and ratified the Estate's past actions. As such, petitioners argue that because any
relief granted to David on appeal would have no practical effect on TBM' s business
affairs, the case is moot and should be dismissed.
ANALYSIS
In furtherance of its motion to dismiss this appeal as moot, petitioners assert
that on June 7, 2021, the DW and RW Trusts have been each awarded possession of
one-half of the 173.65 units previously held by the Estate (all of Cameron's
membership units, except 2.00 units) via a partial judgment of possession in the
Succession Proceeding. 12 Petitioners assert that in the proceedings below, the parties
stipulated these trusts were members of TBM. 13 According to the motion, after
resolution of the succession proceedings, the DW and RW Trusts now hold an
unequivocal majority interest in TBM. Petitioners state these majority members have
"separately confirmed and ratified all of the decisions that David challenges in this
12
Petitioner's motion states the following:
[Linda Sue] donated her community one-half of the 175.650 membership
units, and [Cameron's] descendants [Darrell and Robert] donated their rights as
legatees to their respective portions of [Cameron's] community half of the
[175.650] membership units, to each of the [DW and RW Trusts] in equal portion.
Despite referencing the full amount of membership units held by the Estate, the motion twice states
that 2.00 of the membership units were not transferred to the RW and DW Trusts.
13
Counsel for David and TBM stipulated that David was not the sole member ofTBM and the First
Amended Articles of Organization was executed by mistake.
9
appeal, including the admission of the Estate as a full member." Petitioners maintain
that independent of the district court's March 31, 2021 order, due to these subsequent
events, each one of the district court's orders are "redundant at best," and "this
appeal is a mere academic exercise with no real-world effects." 14
Petitioners urge David has acknowledged that at the time of Cameron's death,
TBM had seven members holding ownership interests in TBM, and three of those
members, Cameron (175.65 units), RW Trust (11.175 units), and DW Trust (11.175
units) held a combined majority interest of54.65% ownership. Because Cameron's
175.65 units were held by his Estate at the time of the lower court proceedings,
David's focus both in district court and on appeal was whether the Estate had
membership or voting rights in TBM and whether any action taken based on the
presumed membership and voting rights of the Estate could legally stand. Petitioners
claim that even if this Court were to find error in the district court findings, because
the DW and RW Trusts now control a majority of the membership units and have
acted to ratify the admission of the Estate as a member and to confirm TBM's current
business arrangements, a reversal would have "no practical effect," and as a result,
"there is no justiciable controversy .... " Thus, petitioners contend this appeal is moot
and should be dismissed.
14
Petitioners attached to its motion a June 14, 2021 "Written Consent of Majority Members of
[TBM] Regarding Ratification of Membership Admission of Estate of [Cameron Webster]," which
references in part that: 1) pursuant to "agreement of the parties," the May 12, 2021 judgment
recognized the DW and the RW Trust as members of the Company with full rights as members,
including but not limited to the right to vote; 2) the legatees of Cameron's Estate donated their
interests in the estate to the DW and R W Trusts and that a Partial Judgment of Possession was
entered on June 7, 2021, putting these trusts in possession as owners of86.825 membership units
in the Company, for a combined total of 173.65 membership units, 3) that Cameron's Estate has
retained possession of two membership units in TBM, and 4) the R W and DW Trusts ratified a
"Written Consent," previously executed on November 13, 2020, by them and Linda Sue, wherein
the Estate was duly admitted as a member ofTBM.
10
While neither David nor TBM have conceded mootness, they have not filed
any opposition to the motion to dismiss, and thus have not challenged any of the
alleged facts supporting the motion.
It is well settled that courts will not decide abstract, hypothetical, or moot
controversies or render advisory opinions with respect to such controversies. Cat's
Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-601, p. 8 (La.
10/20/98), 720 So.2d 1186, 1193. According to Louisiana jurisprudence, an issue is
"moot" when a judgment or decree on that issue has been deprived of practical
significance or made abstract or purely academic. A case is "moot" when a rendered
judgment or decree can serve no useful purpose and give no practical relief or effect.
If the case is moot, then there is no subject matter on which the judgment of the court
can operate. Jurisdiction, once established, may abate if the case becomes moot.
First Nat. Bank of Picayune v. Pearl River Fabricators, Inc., 06-2195, p. 7 (La.
11116/07), 971 So.2d 302, 307-08. The controversy must normally exist at every
stage of the proceeding, including the appellate stages. Felder v. Political Firm,
L.L.C., 2014-1266, p. 6 (La. App. 1 Cir. 4/24115), 170 So.3d I 022, 1027.
Louisiana Code of Civil Procedure article 2164 states, in pertinent part, "The
appellate court shall render any judgment which is just, legal, and proper upon the
record on appeal." The record on appeal is that which is sent by the district court to
the appellate court and includes the pleadings, court minutes, transcript, jury
instructions, judgments, and other rulings, unless otherwise designated. City of
Hammond v. Parish of Tangipahoa, 2007-0574, pp. 4-5 (La. App. 1 Cir. 3/26/08),
985 So. 2d 171, 176. An appellate court cannot review evidence that is not in the
record on appeal and cannot receive new evidence. Id. As an appellate court, we
have no jurisdiction to receive new evidence. Id. at 177.
11
The alleged facts regarding fundamental membership and management
changes that have transpired after the hearing on the merits are not part of the record
before us. As such, the record does not allow a final disposition of the case or provide
sufficient information for determining whether this matter is indeed moot.
Louisiana Revised Statutes 12: 1318, addressing the voting rights of members
provides, in part:
A. Unless otherwise provided in the articles of organization or a written
operating agreement, each member of a limited liability company
shall be entitled to cast a single vote on all matters properly brought
before the members, and all decisions of the members shall be made
by majority vote of the members.
B. Unless otherwise provided in the articles of organization or a written
operating agreement, a majority vote of the members shall be
required to approve the following matters, whether or not
management is vested in one or more managers pursuant to R.S.
12:1312:
(6) An amendment to the articles of organization or an operating
agreement.
Louisiana Revised Statutes l2:1333(A) provides, "Except as otherwise
provided in the articles of organization or a written operating agreement, if a member
who is an individual dies ... the member's membership ceases and the member's
executor ... shall be treated as an assignee of such member's interest in the limited
liability company." Louisiana Revised Statutes 13:1332(A) states, "Except as
otherwise provided in the articles of organization or a written operating agreement:
( 1) An assignee of an interest in a limited liability company shall not become a
member or participate in the management of the Jimited liability company unless the
other members unanimously consent in writing."
12
Relevantly, Article Ill of the original Articles of Organization, addressing
"Management," provides, in pertinent part:
Except for situations in which the approval of the members is
required by non-waivable provisions of the LLC Law, all of the
business( es), assets, affairs, transactions, property and interests of
the Company, of any nature and description, shall be exclusively
and solely managed, conducted, performed and controlled by and
under the sole direction of the Manager(s) of the Company. The
Company shall be initially managed by [Cameron] and [David],
who shall be the Company's Managers; in the event that one of the
said initial Managers does not, will not, or cannot serve or continue
to serve for any reason as a Manager, then the remaining of the
said initial Managers shall continue as the sole Manager of the
Company . . .. The Managers of the Company shall not have
authority to undertake on behalf of the Company any of the
matters listed and described in [La. R.S. 12:1318(B)(l) through (3)
[the dissolution and winding up of the LLC; the sale, or other transfer
of all or substantially all of the assets of the LLC; and the merger or
consolidation of the LLC] and (6) [an amendment to the articles of
organization or an operating agreement]; all action on those
matters is reserved to the members of the Company by a vote of a
majority in-interest in the Company ....
(Emphasis added.)
Article IV, addressing Member Voting, provides as follows:
Each member of the Company shall have votes which shall be
proportionate to his or her ownership interest (being membership
interest/units), in the Company. When acts or action by the
Company must be authorized or approved by the members,
affirmative votes thereon by those members holding together a
majority in membership interest/units in the Company shall be
required for such approval or authorization thereof, including, but
not limited to, the matters listed and described in [La. R.S.
12:1318(B)(I) through (3) and (6)] and [La. R.S. 12:1332(A)(l)][an
assignee of an interest in an LLC becoming a member or
participating in the management of the LLC].
(Emphasis added.)
Article IX, Section 6 of the original Operating Agreement, addressing the
transfer of interests with respect to a "Substituted Member" provides, in pertinent
part, as follows:
Upon the death ... of a Member .. ., the Member's successor in interest
shall not be substituted as a Member unless and until he or she is
13
approved by the other Members as provided in the Article of
Organization and a report or an amendment of the Articles of
Organization has been duly executed and filed as required by law.
Article II, Section 5(A) of the original Operating Agreement provides as
follows with respect to voting:
Action to be taken by the vote of the Members shall be authorized
by the vote of the Members as required by the Articles of Organization
of the Company, this agreement, and otherwise as may be required by
law. Each member of the Company shall have votes which shall be
proportionate to his or her ownership interest, being the
membership interest/units, in the Company and the vote of those
members holding together a majority of such membership interests
in the Company shall be required on all matters where a vote of the
members is necessary for action by the Company or such vote is
required by the Manager(s), except where a greater than majority in-
interest vote is required in the Articles of Organization of the Company
or by law.
(Emphasis added).
Based on the respective unit ownership of each member at the time of the
March 31, 2021 ruling, whether the Estate was a member ofTBM was a significant
determination regarding the issues presented. If the vast majority of the Estate's
ownership units have been in fact transferred to the DW and RW Trusts, undisputed
members of TBM, whether the Estate is a member of TBM purportedly is of little
consequence to TBM's ongoing operations. Based on the record, however, this Court
has no evidence to confirm whether this transfer in fact occurred. As a result, we do
not have sufficient information to determine whether the trusts have sufficient votes
and authority in accordance with the terms of the original organizational documents
(and pursuant to La. R.S. 12:1318) to amend the organizational documents to
provide different membership and management provisions fundamental to TBM's
operations. TBM's motion to substitute counsel stated that a majority of TBM
members have amended the Articles of Organization and the operating agreement,
thereby removing David as manager and naming Darrell as "sole manager." Thus,
14
we cannot determine based on the record before us whether events that have
transpired after the judgment on appeal operate to defeat David's claim that he
should be reinstated as sole manager of TBM. Although these facts are not
established in the record before us, based on the unopposed facts alleged by
petitioners, this case should be treated as potentially moot and remanded for the court
to determine the appropriate facts and whether this action should be dismissed. The
district court should also determine whether the alleged actions referenced in
petitioner's motion to dismiss could have been taken legally with respect to TBM in
light of the suspensive appeal that was granted. 15 See De Felice v. Garon, 395 So.2d
658, 662 (La. 1980) (on rehearing); Succession of Elrod, 371 So.2d 796, 797-98
(La. 1979); Vacuum Oil Co. v. Cockrell, 174 La. 60, 62, 139 So. 759 (1932). We
find these allegations support an order setting aside the judgment under review and
remanding the matter for further proceedings. La. C.C.P. art. 2164. See Vacuum Oil
Co., 174 La. at 62, 139 So. at 759.
CONCLUSION
For these reasons, we vacate the March 3 1, 2021 judgment and remand this
matter for the district court to determine, after a contradictory hearing, whether post-
judgment events have rendered this matter moot. The trial court should conduct any
further proceedings as necessitated by that determination and render such judgment
as the facts and law may justify, which may include the dismissal of the suit, a
judgment that conforms with the March 31, 2021 judgment, or a judgment in
accordance with any new facts established during the contradictory hearing, to the
extent the parties' actions were taken legally in light of the suspensive appeal.
Petitioners' motion to withdraw and dismiss the suspensive appeal and its motion to
15
A suspensive appeal suspends the effect or the execution of an appealable order or judgment.
La. C.C.P. art. 2123.
15
dismiss the suspensive appeal or, alternatively, to dismiss in part and convert part of
the suspensive appeal to a devolutive appeal are denied in light of the fact that the
trial court may find this matter is moot. One-half of the appeal costs are assessed to
petitioners, and the other one-half is assessed to David H. Webster.
MARCH 31, 2021 JUDGMENT VACATED AND MATTER
REMANDED FOR FURTHER PROCEEDINGS; MOTION TO WITHDRAW
AND DISMISS SUSPENSIVE APPEAL DENIED; MOTION TO DISMISS
SUSPENSIVE APPEAL OR, ALTERNATIVELY, TO DISMISS IN PART
AND CONVERT PART OF SUSPENSIVE APPEAL TO DEVOLUTIVE
APPEAL DENIED.
16