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Bogus Lusa Waterworks Dist. v. Louisiana Dep't of Environmental Quality12/17/2004
Washington Area Resource Network (WARN) appeals a trial court judgment maintaining a peremptory exception raising the objection of no right of action asserted by Washington Parish Energy Center (WPEC) and the grant of WPEC's opposition to supplemental and amending petitions filed by WARN. Following our review of the record and applicable law, the trial court judgment is affirmed, in part, reversed in part, and the case is remanded.
Bogue Lusa Waterworks and WARN filed a petition against the Louisiana Department of Environmental Quality (DEQ) and Dale Givens, Secretary of DEQ, contesting DEQ's June 25, 2000 decision to issue permits to Cogentrix Energy, Inc. for a natural gas-fired electrical power plant. The permits were subsequently purchased by Calpine Central, L.P., which then formed Washington Parish Energy Center, LLC (WPEC), to which DEQ transferred the permits.
PEREMPTORY EXCEPTION RAISING THE OBJECTION OF NO RIGHT OF ACTION WPEC filed exceptions raising the objection of no right of action and the lack of procedural capacity. La. C.C.P. arts. 926 and 927. In its peremptory exception, WPEC alleged that WARN was not a juridical entity; therefore, it possessed no right of action to file a petition for judicial review. Specifically, WPEC maintained that WARN did not meet the requirements of an unincorporated association such that it formed a separate juridical person distinct from its members. The evidence submitted in support of WPEC's exception based on the objection of no right of action consisted of deposition testimony by Dr. Anthony Palazzo, a blank membership form for WARN, and articles of incorporation for WARN that were returned by the Secretary of State as of May 22, 1996 due to a "failure to meet filing requirements."
The deposition testimony given by Dr. Palazzo revealed that his wife, Lynn Palazzo, who was president of the association, had organized WARN with the help of Louisiana Environmental Action Network (LEAN) during the latter part of 1995 and early portion of 1996. She had consistently handled most of the "day to day" operations. At the time of its inception, Dr. Palazzo stated that Mrs. Palazzo, he, and eight other unnamed people were part of the organization. Dr. Palazzo testified that dues in the past had been $10.00 per year; however, no person had been excluded on the basis of nonpayment. The decision to file the instant lawsuit had been made by Dr. and Mrs. Palazzo on behalf of the association. Dr. Palazzo further stated that he believed that he and Mrs. Palazzo were the members who lived closest to the proposed power plant, which was approximately one mile from their home.
In oral reasons for judgment, the trial court indicated that it was relying on the factors enunciated in Ermert v. Hartford Insurance Company, 559 So.2d 467 (La.1990), to conclude that WARN did not form a separate legal entity or become a juridical person. Our review of the precepts and factors displayed in Ermert, as well as associated law, leads to a contrasting legal interpretation of the organizational status of WARN.
In Ermert, the Louisiana Supreme Court observed that under both civilian and common law theory, an unincorporated association was established in the same manner as a partnership, i.e., pursuant to a "contract between two or more persons to combine their efforts, resources, knowledge or activities for a purpose other than profit or commercial benefit." Ermert, 559 So.2d at 473. The common intent of the parties forms the controlling element in contract interpretation. Ermert, 559 So.2d at 474; La. C.C.2045. The court distinguished an unincorporated association from a group that came into existence, or commenced merely by virtue of the for
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