Hubert Arvie v. Darryl Washington

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

23-563

HUBERT ARVIE

VERSUS

DARRYL WASHINGTON, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2023-0222
HONORABLE CLAYTON A. DAVIS, DISTRICT JUDGE

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WILBUR L. STILES
JUDGE

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Court composed of Van H. Kyzar, Guy E. Bradberry, and Wilbur L. Stiles, Judges.

AFFIRMED.

Hubert Arvie
In Proper Person
1901 Knapp Street
Lake Charles, LA 70601
(337) 244-6776
COUNSEL FOR PLAINTIFF/APPELLANT:
Hubert Arvie

Richard E. Wilson
Cox, Cox, Filo, Camel, Wilson & Brown
723 Broad Street
Lake Charles, LA 70601
(337) 436-6611
COUNSEL FOR DEFENDANTS/APPELLEES:
Michael K. Cox
Richard Wilson
Somer G. Brown
Darryl Washington
Lankton Doucet

Tara E. Clement
Robert I. Siegel
John E.W. Baay, II
Geiger, Laborde & Laperouse, L.L.C.
701 Poydras Street, Suite 4800
New Orleans, LA 70139
(504) 561-0400
COUNSEL FOR DEFENDANT/APPELLEE:
Wilshire Insurance Company

Patrick O. Weilbaecher
Chopin Law Firm, LLC
650 Poydras Street, Suite 1550
New Orleans, LA 70130
(504) 475-2429
COUNSEL FOR DEFENDANT/APPELLEE:
Wilshire Insurance Company

STILES, Judge.

Plaintiff/Appellant Hubert Arvie, a pro se litigant, filed suit against various

members of the Cathedral of Faith Missionary Baptist Church, their attorneys, and

the Church’s property insurer, Wilshire Insurance Company, for allegedly settling a

lawsuit in bad faith. That lawsuit involved property damages sustained by the

Church as a result of Hurricanes Laura and Delta. A hearing was held on May 25,

2023, on the Cox Defendants’ motion to disqualify Mr. Arvie as counsel for the

Church, motion to strike Mr. Arvie’s discovery requests, and motion for sanctions.

The trial court granted the motions to disqualify and to strike, while the matter of

sanctions was taken under advisement. A judgment was signed on June 2, 2023. The

trial court further stated at the May 25 hearing that it would consider the Defendants’

peremptory exceptions of no right of action and no cause of action on the pleadings

already submitted without holding a hearing. Judgment was rendered on May 30,

2023, granting the peremptory exceptions of no right of action and no cause of action

filed on behalf of all the Defendants, denying Mr. Arvie’s motion for leave to file

amended petitions, denying Mr. Arvie’s claims, and dismissing the matter of

sanctions against Mr. Arvie. Mr. Arvie has appealed. For the reasons set forth below,

we affirm the judgments of the trial court in their entirety.

FACTS AND PROCEDURAL HISTORY

The Cathedral of Faith Missionary Baptist Church (the Church) is a nonprofit

religious corporation organized under Louisiana law for nonprofit corporations.

Hearnest Arvie—Mr. Arvie’s father—founded the Church in 1977 and became its

first pastor. Hearnest died in 2010. In August 2013, Arthur Cullivan was elected

pastor.

In 2020, the Church’s property was damaged by Hurricanes Laura and Delta.

Wilshire Insurance Company (Wilshire) insured the Church’s property at the time

of the hurricanes. Pastor Cullivan was unhappy with the amount of money offered

by Wilshire for repairs to the Church’s property and discussed the matter with Mr.

Arvie, who suggested they meet with Michael K. Cox, an attorney. Pastor Cullivan

met with Mr. Cox and, on behalf of the Church, signed a contract with the law firm

Cox, Cox, Filo, Camel, Wilson & Brown, LLC (the Cox Firm), hiring Mr. Cox,

Richard Wilson, and Somer G. Brown (the Cox Defendants) to bring a lawsuit

against Wilshire—the Hurricane Litigation. Pastor Cullivan died while the lawsuit

was pending. On August 28, 2022, the Church and Wilshire reached an agreement

to resolve the Hurricane Litigation. Darryl Washington, as the Church’s Vice

President, and the Church’s deacons instructed the Cox Defendants, the Church’s

counsel of record, to settle the lawsuit.

While Mr. Arvie had participated in the Hurricane Litigation, he was not

consulted about the settlement, which upset him, causing him to file, pro se, on

January 17, 2023, a Petition for Damages, Temporary Restraining Order,

Preliminary Injunction, Permanent Injunctions, and/or Declaratory Judgment

seeking to undo the settlement, prohibit Church officials from committing certain

acts associated with the Church, and suing the Church Board for damages. Mr.

Washington and Lankton Doucet, a deacon of the Church, were named as defendants

(the Church Defendants). Mr. Arvie claimed that the settlement of the Hurricane

Litigation was not in the Church’s best interest and that the Church Board had

prevented Mr. Arvie from calling a special meeting designed to obtain the

unanimous consent of the Church’s membership on whether to accept the settlement.

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Mr. Arvie’s case was allotted to Judge Clayton Davis of the Fourteenth

Judicial District Court, prompting Mr. Arvie to file on February 7, 2023, a Motion

for Recusal of Assignee Judge. The motion asserted two grounds for the recusal of

Judge Davis: (1) when Judge Davis ran for a seat on the Third Circuit Court of

Appeal in 2022, Mr. Cox spearheaded his campaign and, along with the Cox Firm,

contributed a substantial amount of money to Judge Davis’s campaign; and (2) Judge

Davis engaged in acts or omissions with other attorneys to prevent Mr. Arvie from

successfully prosecuting another civil case, Hubert Arvie v. Geico Casualty

Company, Calcasieu Parish, Fourteenth Judicial District Court, docket number

2021-3843 (the Geico case).

On February 13, 2023, Judge Davis issued an Order Denying Motion to

Recuse, finding that Mr. Arvie’s motion “does not set forth any of the grounds for

recusal under [La.Code Civ.P. art.] 151. Accordingly, the Motion to Recuse is

DENIED.”1 In response thereto, Mr. Arvie filed on February 23, 2023, a Notice of

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Louisiana Code of Civil Procedure Article 151 provides the following:

A. A judge of any trial or appellate court shall be recused upon any of the
following grounds:

(1) The judge is a witness in the cause.

(2) The judge has been employed or consulted as an attorney in the cause or
has previously been associated with an attorney during the latter’s employment in
the cause, and the judge participated in representation in the cause.

(3) The judge is the spouse of a party, or of an attorney employed in the
cause or the judge’s parent, child, or immediate family member is a party or
attorney employed in the cause.

(4) The judge is biased, prejudiced, or interested in the cause or its outcome
or biased or prejudiced toward or against the parties or the parties’ attorneys or any
witness to such an extent that the judge would be unable to conduct fair and
impartial proceedings.

B. A judge of any trial or appellate court shall also be recused when there
exists a substantial and objective basis that would reasonably be expected to prevent
the judge from conducting any aspect of the cause in a fair and impartial manner.

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Applying for Supervisory Writs of Review. The trial court ordered that Mr. Arvie’s

application for supervisory writs be filed with the Third Circuit Court of Appeal on

or before April 14, 2023. However, there is no indication that Mr. Arvie filed any

such application for supervisory writ of review.

In the meantime, Mr. Arvie filed on February 22, 2023, a Supplemental and

Amended Petition for Damages, Injunctive Relief, and Declaratory Judgment,

adding as defendants the Cox Defendants and Wilshire, claiming that they

knowingly settled the Hurricane Litigation in bad faith, and, thus, the final settlement

was unenforceable because there was no meeting of the minds. Mr. Arvie again

sought damages.

The Cox Defendants, the Church Defendants, and Wilshire all filed

peremptory exceptions of no right of action and no cause of action in response to the

original petition and supplemental and amended petition. A hearing was scheduled

for May 30, 2023, for the peremptory exceptions.

After the peremptory exceptions were filed, Mr. Arvie filed on March 20,

2023, a Second Amended Petition Seeking Damages, Declaratory Judgment,

Injunctive Relief, Writ of Quo Warranto, and Mandamus, and, on April 28, 2023, a

Third Amended Petition for Damages, Writ of Quo Warranto, Writ of Mandamus,

Declaratory Judgment, and Injunctive Relief. The trial court deferred the decision

on whether to allow these amendments of Mr. Arvie’s pleadings pending

C. In any cause in which the state or a political subdivision thereof is
interested, the fact that the judge is a citizen of the state or a resident of the political
subdivision, or pays taxes thereto, is not a ground for recusal. In any cause in which
a religious body or religious corporation is interested, the fact that the judge is a
member of the religious body or religious corporation is not alone a ground for
recusal.

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consideration of the previously filed peremptory exceptions, set for hearing on May

30, 2023.

On May 5, 2023, the Cox Defendants filed a Motion to Disqualify Hubert

Arvie as Counsel for Cathedral of Faith Missionary Baptist Church. They based their

motion on the premise that the claims asserted by Mr. Arvie were in fact derivative

claims filed on behalf of the Church, as Mr. Arvie was seeking to undo a settlement

entered into by the Church and to compel other Church/corporate activities. The Cox

Defendants argued that such claims belonged to the Church and not to Mr. Arvie

personally. Thus, Mr. Arvie could not represent the interests of the Church in this

current lawsuit because, as a corporation, the Church can only be represented by a

licensed attorney. Since Mr. Arvie is not a licensed attorney, the Cox Defendants

argued that he must be disqualified from representing the Church in this lawsuit.

The Cox Defendants also filed on May 5, 2023, a Motion to Strike and

Sanctions based on discovery requests it had received from Mr. Arvie seeking the

Cox Firm’s file on the Hurricane Litigation. For the same reasons given in the motion

to disqualify, the Cox Defendants argued that this was a derivative suit and, as such,

Mr. Arvie was requesting discovery on behalf of another entity, the Church.

According to the Cox Defendants, such an act by Mr. Arvie constituted the

unauthorized practice of law by an unlicensed attorney.

A hearing for the motion to disqualify and the motion to strike and for

sanctions was held on May 25, 2023. After hearing arguments from Mr. Arvie, the

Cox Defendants, and Wilshire, the trial court granted the motion to disqualify, the

motion to strike, and the request for sanctions, finding that Mr. Arvie’s action was

based on derivative claims belonging to the Church. It then decided that since Mr.

Arvie could not represent the Church in this lawsuit, there was no need to hold the

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May 30 hearing on the peremptory exceptions as Mr. Arvie would not be allowed to

participate as an unlicensed attorney. Instead, the trial court would consider the

peremptory exceptions based on what had previously been submitted by the parties.

A judgment was signed on June 2, 2023, granting the motion to disqualify, granting

the motion to strike and for sanctions, and taking the matter of sanctions under

advisement.

On May 30, 2023, the trial court rendered the following judgment after

considering the Defendants’ peremptory exceptions of no right of action and no

cause of action:

This ill-fated lawsuit comes to its deserved end following the
hearing on May 25, 2023 and the Court’s ruling today on the various
exceptions filed by Defendants. Plaintiff, Hubert Arvie, does not have
an individual claim for relief. He instead assumes a right to act on
behalf of his church to “rectify” the church’s hurricane insurance claim,
which claim has long since resolved.

The peremptory exceptions of no right and no cause of action
filed by all defendants are GRANTED.

The Plaintiff’s motions for leave to amend and supplement the
petition are DENIED.

Plaintiff’s claims are DENIED. Sanctions against Plaintiff are
dismissed.

All costs are assessed against the Plaintiff.

Mr. Arvie appealed, asserting six assignments of error in his original appellant

brief and a seventh assignment of error in his supplemental appellant brief.

Once his appeal was filed with this court, Mr. Arvie filed a Motion for Recusal

of Third Circuit, alleging that, per La.Code Civ.P. art. 151(B), the entire court was

biased against him due to the actions and inactions of multiple judges of this court,

referencing both retired judges and current judges. Mr. Arvie asked the entire Third

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Circuit to recuse itself or have the Louisiana Supreme Court appoint an ad hoc judge

to conduct a hearing on the motion to recuse.

This court issued an Order dated October 9, 2023, and signed by all judges of

the Third Circuit, denying Mr. Arvie’s motion to recuse “as he fails to set forth any

grounds for recusal of any judge of this Third Circuit Court of Appeal.” Written

Reasons for Denial of Motion for Recusal were attached to the Order. The Supreme

Court denied Mr. Arvie’s application for supervisory writ on January 17, 2024. See

Arvie v. Washington, 23-1482 (La. 1/17/24), 377 So.3d 240.

On December 19, 2023, Mr. Arvie filed a Motion-2 For Recusal, again asking

all the judges of this court to recuse themselves. This second motion to recuse was

denied by this court on January 12, 2024.

On March 8, 2023, Mr. Arvie filed a Motion-3 For Recusal, seeming to seek

recusal of the panel assigned to hear his case on this appeal. In a per curiam opinion

dated April 8, 2024, this panel denied the motion to recuse, finding that Mr. Arvie’s

motion failed to set forth any ground for recusal under La.Code Civ.P. art. 151.

We will now address Mr. Arvie’s appeal.

ASSIGNMENTS OF ERROR

Mr. Arvie asserts the following assignments of error (citations omitted) in his

appeal of the trial court’s judgments:

1. The trial court erred under the governing federal and state law by
failing to recuse where the factual basis for recusal motion set forth
allegations depicting there exist [sic] a substantial and objective
basis that would reasonably be expected to prevent the judge from
conducting any aspect of the cause in a fair and impartial manner.

2. The trial court erred under federal constitution and state law by
granting a judgment on evidence not properly offered, introduced,
and admitted into evidence to support the factual findings
underlying the final decree.

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3. The trial court erred by granting the motion to disqualify the
proponent pro se from proceeding with the suit where the third
amended petition superseding the previously filed petitions reflect
[sic] that the proponent did not file a derivative action against a
registered Non-profit Corporation seeking to enjoin the invalidity of
an act the corporation was without capacity or power to perform
without an affirmative vote of the members.

4. The trial court erred under federal and state law by preventing the
proponent pro se from proceeding with the third amended petition
superseding the previously filed petitions where the factual basis for
the civil action alleged usurpation of office by members of a
Louisiana Non-profit Corporation who were not elected by
corporate resolution evincing the unanimous consent by the
affirmative vote of the members.

5. The trial court erred under federal and state law by preventing the
proponent pro se from proceeding with the amended petition
superseding the previously filed petitions where the civil action
alleged that members who usurped the offices of a Louisiana
Nonprofit [sic] Corporation have refused a voting member of the
right to examine corporate records.

6. The trial court erred by finding the third amended petition does not
state a cause or right of action where the petition alleges fraud,
conspiracy, defamation, and denial of access to court.

7. The trial court abused its discretion by finalizing the proceedings
without providing a registered Louisiana Nonprofit [sic]
Corporation a window of opportunity to hire a lawyer to represent
the interest of the corporation who was named a plaintiff-proponent
by a single member of the corporation who timely filed a civil action
against the corporation by reason of the fact that several members
performed acts on behalf of the corporation who were not elected by
majority vote to perform the acts.

DISCUSSION

Assignment of Error Number One

In his first assignment of error, Mr. Arvie asserts that the trial judge allotted

to this case erred in denying the motion to recuse himself “as there exists a

substantial and objective basis that would reasonably be expected to prevent the

judge from conducting any aspect of this cause in a fair and impartial manner.” See

La.Code Civ.P. art 151(B).

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Mr. Arvie has asserted two separate grounds in both his original motion to

recuse and this appeal as support for why he believes Judge Davis should have been

recused as the trial judge in this civil action. He alleged that (1) when Judge Davis

ran for a seat on the Third Circuit Court of Appeal in 2022, Mr. Cox spearheaded

his campaign and, along with the Cox Firm, contributed a substantial amount of

money to Judge Davis’s campaign; and (2) Judge Davis engaged in acts or omissions

with other attorneys to prevent Mr. Arvie from successfully prosecuting another civil

case before him, the Geico case.

Mr. Arvie first argues in his appellant brief that his motion to recuse Judge

Davis was based on the relationship between Judge Davis and Mr. Cox. Mr. Cox

represented the Church in the Hurricane Litigation and has been named as a

defendant by Mr. Arvie in this matter currently before us. In 2022, Judge Davis ran

for a seat on the Third Circuit Court of Appeal. According to Mr. Arvie, Mr. Cox

spearheaded Judge Davis’s campaign and contributed large amounts of money to the

campaign, along with the Cox Firm. Mr. Arvie further claims that Judge Davis

removed a video from his Facebook page that contained statements supposedly made

by Mr. Cox in support of Judge Davis’s campaign which “strengthened the factual

basis for the motion.”

In support of this claim, Mr. Arvie cites Anderson v. Dean, 22-233, p. 18

(La.App. 5 Cir. 7/25/22), 346 So.3d 356, 369, in which the court addressed La.Code

Civ.P. art. 151(B):

Whether the requirements of this new ground for recusal in
Paragraph B are met will necessarily vary to some degree depending on
the facts and circumstances of each case: the conduct complained of
and the relationships and interests involved. In determining whether a
recusal is necessary under Paragraph B, a judge’s decision should be
guided by the twin imperative duties of a judge: to try the case fairly

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and impartially on the one hand, and on the other to promote public
confidence in the integrity and impartiality of the judiciary.

In response to Mr. Arvie’s claim that Judge Davis should have recused himself

due to the Cox Firm’s contributions to his campaign, the Cox Defendants assert that

this same issue was previously raised and dismissed in Guillory v. Louisiana Farm

Bureau Casualty Insurance Co., 22-634 (La.App. 3 Cir. 10/4/23), 371 So.3d 1202,

writ denied, 23-1453 (La. 1/10/24), 376 So.3d 848. Guillory involved an insurance

case in front of Judge Davis in which the plaintiffs were represented by the Cox Firm.

The defendant, Farm Bureau, moved to recuse Judge Davis on the grounds that his

receipt of campaign contributions biased Judge Davis in favor of Mr. Cox and his

clients. This motion to recuse was dismissed by both the trial court and a panel of

this court. We note, however, that neither the trial court nor this court reached the

issue of campaign contributions when considering the motion to recuse Judge Davis

in Guillory because the motion was dismissed on the basis that it was untimely filed.

Both Mr. Arvie and the Cox Defendants cite Daurbigney v. Liberty Personal

Insurance Co., 18-929 (La.App. 3 Cir. 5/9/19), 272 So.3d 69 (per curiam). In

Daurbigney, the plaintiff’s attorneys filed a motion to recuse, accusing the trial judge

of being biased against them because she had specifically targeted their law firm in

an attack ad run in the local media against her opponent in the race for Louisiana

Supreme Court. This court noted in its opinion that an objective standard must be

applied when considering a motion to recuse, specifically, “whether objectively

speaking, considering all the circumstances alleged, ‘the risk of bias was too high to

be constitutionally tolerable.’” Id. at 74 (quoting Rippo v. Baker, 580 U.S. 285, 137

S.Ct. 905, 907, (2017)). Noting that the circumstances in Daurbigney were unique,

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this court reversed the ruling of the trial court and ordered the recusal of the trial

judge.

Looking at this case objectively, given the optics, the tone, timing and
wording of the ad, it is implausible that this client, or any reasonable
client under the circumstances, could have trust and confidence in the
impartiality of the trial judge when the sitting trial judge hearing her
case has published such an ad directly naming and attacking her
attorneys.

Id. at 77.

The United States Supreme Court addressed the issue of campaign

contributions in Caperton v. A.T. Massey Coal Co., Inc., 556 U.S. 868, 129 S.Ct.

2252 (2009), which has also been cited by both Mr. Arvie and the Cox Defendants

in their briefs. The court made it clear in Caperton that a court must consider the

specific circumstances presented by the case. In Caperton, A.T. Massey Coal Co.,

Inc. was found liable by a West Virginia jury and ordered to pay the plaintiffs $50

million in compensatory and punitive damages. After the verdict and while an appeal

was pending, the CEO of A.T. Massey Coal Co., Inc., Mr. Blankenship, donated $3

million to the campaign of Judge Benjamin, who was running for a seat on the West

Virginia Supreme Court. Judge Benjamin was elected to the supreme court and was

sitting on the bench as a justice when the Caperton case came before the supreme

court on appeal. Caperton moved to disqualify Justice Benjamin from hearing the

appeal, arguing that Mr. Blankenship’s contributions to his campaign created a

conflict. The motion was denied. The West Virginia Supreme Court went on to hear

the appeal in Caperton and reversed the jury’s finding of liability, with Justice

Benjamin writing a concurring opinion.

The Supreme Court found that Justice Benjamin should have recused himself

as a matter of due process, noting, “Not every campaign contribution by a litigant or

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attorney creates a probability of bias that requires a judge’s recusal, but this is an

exceptional case.” Caperton, 556 U.S. at 884.

We conclude that there is a serious risk of actual bias—based on
objective and reasonable perceptions—when a person with a personal
stake in a particular case had a significant and disproportionate
influence in placing the judge on the case by raising funds or directing
the judge’s election campaign when the case was pending or imminent.
The inquiry centers on the contribution’s relative size in comparison to
the total amount of money contributed to the campaign, the total
amount spent in the election, and the apparent effect such contribution
had on the outcome of the election.

Id. at 884. The court further noted that “[t]he temporal relationship between the

campaign contributions, the justice’s election, and the pendency of the case is also

critical.” Id. at 886.

We find that the facts and circumstances of this case are distinguishable from

those in Daurbigney and Caperton.

As noted by the Cox Defendants in their appellee brief, the facts of

Daurbigney are extraordinary, as the trial judge in that case specifically attacked a

party’s attorney in a public ad. There was no such attack on Mr. Arvie.

In Caperton, the contributions made to Justice Benjamin’s campaign not only

exceeded by 300% the total amount spent by Justice Benjamin’s campaign

committee but were donated while the Caperton appeal was pending, resulting in

Justice Benjamin being seated on the court set to hear the appeal. As noted by this

court in Guillory, Mr. Cox and the Cox Firm donated money to Judge Davis’s

campaign on November 9, 2021, with their donation amounting to 72.73% of the

total contributions to Judge Davis’s campaign. While the amount donated was a

substantial amount, it does not compare to the enormous amount donated to the

judge’s campaign in Caperton. Furthermore, the election for which Judge Davis was

campaigning was for a seat on the Third Circuit Court of Appeal. Judge Davis lost

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that election in November of 2022. The contributions to his campaign by Mr. Cox

and the Cox Firm were not made for Judge Davis’s campaign for his seat in the

Fourteenth Judicial District Court. Thus, their donation had nothing to do with Judge

Davis’s allotment to this case. In addition, Mr. Arvie’s case was not pending at the

time the contributions were made or at the time of the election, as he filed his original

petition on January 17, 2023.

We look next to Mr. Arvie’s allegation that Judge Davis engaged in acts or

omissions with other attorneys to prevent Mr. Arvie from successfully prosecuting

a previous case allotted to him, the Geico case. In his appellant brief, Mr. Arvie

recites the allegations contained in his third amended petition detailing Judge

Davis’s alleged violation of Mr. Arvie’s rights in the Geico case. We will not,

however, consider the allegations contained in the third amended petition since the

trial court denied Mr. Arvie leave to file that amended petition in its May 30, 2023

judgment. See La.Code Civ.P. art. 1151. While Mr. Arvie did raise this argument in

his motion for recusal filed in the trial court, he did not assert any supporting facts

or evidence, only conclusory allegations. “Adverse rulings alone do not show bias

or prejudice.” David v. David, 14-999, p. 5 (La.App. 3 Cir. 2/4/15), 157 So.3d 1164,

1168 (citing Earles v. Ahlstedt, 591 So.2d 741 (La.App. 1 Cir. 1991), writ denied,

15-494 (La. 5/15/15), 170 So.3d 968. See also Rodock v. Pommier, 16-809 (La.App.

3 Cir. 2/1/17), 225 So.3d 512, writ denied, 17-631 (La. 5/1/17), 221 So.3d 70. Thus,

by itself, an adverse ruling by a trial judge does not warrant recusal of that judge. Id.

The applicable standard of review of a denial of a motion to recuse is one for

abuse of discretion. Menard v. Menard, 19-580, 19-581 (La.App. 3 Cir. 3/11/20),

297 So.3d 82. After a review of the facts and circumstances of this case, we find that

Judge Davis did not abuse his discretion in denying Mr. Arvie’s motion to recuse.

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There is nothing in the record to indicate that “the ‘probability of actual bias rises to

a level that is too high to be constitutionally tolerable under the circumstances’[.]”

Id. at 95 (citing Daurbigney, 272 So.3d 69). We therefore find that this assignment

of error is without merit.

Assignment of Error Number Two

In his second assignment of error, Mr. Arvie asserts that the trial court erred

in granting a judgment on evidence not properly offered, introduced, and admitted

into evidence to support the factual findings underlying the final decree.

Although not specified in his delineation of the assignments of error, Mr.

Arvie’s argument under this assignment of error refers to (a) the Cox Defendants’

motion to disqualify Mr. Arvie as the Church’s counsel, (b) the May 25, 2023

hearing on that motion, and (c) the June 2, 2023 judgment granting the motion to

disqualify. He claims, “In formulating the judgment, it depicts [Judge Davis] relied

on exhibits attached to the motion to disqualify.” Mr. Arvie then discusses the copy

of the Church’s Charter which the Cox Defendants had copied from the Secretary of

State’s website and attached to their motion to disqualify.

We note that while this copy of the Charter was attached to the motion to

disqualify, and therefore filed in the record, a review of the May 25, 2023 transcript

shows that neither side presented nor discussed the copy of the Charter at the hearing

on the motion to disqualify. Nor did Judge Davis state at any time during the hearing

or in his written judgment filed in the record that he was granting the motion to

disqualify based on the information contained in the copy of the Charter. The June

2, 2023 judgment does state that the court considered “the briefs, the argument of

counsel and Mr. Arvie, and the law and evidence[.]” However, while the judgment

references “evidence,” it does not indicate what evidence was considered. Thus, after

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a review of the record, there is nothing to indicate that the trial court based its

decision to grant the motion to disqualify on the copy of the Charter attached to the

motion.

Mr. Arvie further argues that he “was not permitted to present relevant

evidence on the issue of usurpation.” We find that this argument fails for two reasons.

First, there is nothing in the transcript of the hearing indicating that Mr. Arvie ever

attempted to introduce any evidence at the hearing, much less that there was any

evidence the trial court refused to allow him to present. Nor did Mr. Arvie complain

at the hearing that he was not being permitted to present relevant evidence.

The second reason this argument fails is that, according to the statements in

his appellant brief, Mr. Arvie wanted to introduce evidence on the issue of usurpation.

When Mr. Arvie started arguing at the May 25 hearing that there were “usurpers in

the church[,]” the trial court stated that “these are all in the merits of it, sir, and

that’s. . . . We’re not there.” The issue of an alleged usurpation of the power of the

Church, which allegedly resulted in the settlement of the Hurricane Litigation, was

at the center of the claims alleged in Mr. Arvie’s petitions. It was not an issue being

considered in relation to the motion to disqualify. Thus, even if Mr. Arvie had

attempted to introduce evidence of an alleged usurpation at the hearing, which he

did not, it would not have been relevant to the issue before the trial court at that time,

which was limited to whether Mr. Arvie would be allowed to represent the Church’s

interests in this lawsuit as an unlicensed attorney.

For the reasons stated above, we find that this assignment of error has no merit.

Assignment of Error Number Three

Mr. Arvie asserts in his third assignment of error that the trial court erred by

granting the motion to disqualify him from proceeding with this suit because the

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third amended petition reflects that he “did not file a derivative action against a

registered Non-profit Corporation seeking to enjoin the invalidity of an act the

corporation was without capacity or power to perform without an affirmative vote

of the members.”

Mr. Arvie has acknowledged in his original petition and supplemental and

amended petition that the Church is a nonprofit religious corporation registered with

the Louisiana Secretary of State pursuant to a Charter. The Cox Defendants argued

in their motion to disqualify that although Mr. Arvie had filed suit in his own name,

he was suing to enforce the rights of the Church to set aside the settlement that the

Church deacons had authorized and to force the Church to conduct certain corporate

activities, such as forcing meetings and elections. None of these remedies are

personal rights; they are all rights of the corporation which Mr. Arvie seeks to

enforce. The Cox Defendants also note that Mr. Arvie has no interest in the

Hurricane Litigation settlement funds, as those belong solely to the corporation,

which was the named insured in the Wilshire insurance policy.

“Except as otherwise provided by law, an action can be brought only by a

person having a real and actual interest which he asserts.” La.Code Civ.P. art. 681.

Mr. Arvie did not have a real and actual interest in the remedies being sought in his

lawsuit. Thus, he was acting in a “representative capacity” as an advocate for the

Church. “Corporate entities must be represented by counsel.” D.W. Thomas & Son,

Inc. v. Gregory, 50,878, p. 5 (La.App. 2 Cir. 11/23/16), 210 So.3d 825, 828. It

follows, therefore, that a non-attorney cannot act in a representative capacity for a

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corporation, such as the Church. Furthermore, only a person admitted to the practice

of law can represent another person in a judicial proceeding. La.R.S. 37:212(A)(1).2

The trial court granted the motion to disqualify, finding that since Mr. Arvie

did not have an individual claim for relief and was instead assuming a right to act on

behalf of the Church, he could not represent the Church’s interests as an unlicensed

attorney.

Mr. Arvie now argues that he never intended to file a derivative action, and

that the allegations contained in his third amended petition reflect that he filed a civil

action in a pro se capacity against a Louisiana nonprofit corporation to enjoin the

acts of that corporation, which it was without the capacity or authority to perform.

He cites La.R.S. 12:208 in support of this argument, which is the defense of ultra

vires. That defense was first raised in his second and third amended petitions and

does not appear in his original petition or supplemental and amended petition.

Louisiana Code of Civil Procedure Article 1151 allows for the amendment of

pleadings, providing in pertinent part (emphasis added):

A plaintiff may amend his petition without leave of court at any
time before the answer thereto is served. He may be ordered to amend
his petition under Articles 932 and 934. A defendant may amend his
answer without leave of court at any time within ten days after it has
been served. Otherwise, the petition and answer may be amended only
by leave of court or by written consent of the adverse party.

Mr. Arvie was not granted leave to file his second and third amended petitions. That

decision was deferred pending a ruling on the Defendants’ exceptions. Once the trial

2
Louisiana Revised Statutes 37:212(A)(1) provides, “The practice of law means and
includes: (1) In a representative capacity, the appearance as an advocate, or the drawing of papers,
pleadings, or documents, or the performance of any act in connection with pending or prospective
proceedings before any court of record in this state[.]”

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court granted the exceptions, it denied Mr. Arvie’s motions for leave to amend the

petition in the May 30, 2023 Omnibus Order.

“An amended petition filed without leave of court, when such permission is

required, may not be considered, is totally without effect, and is deemed to not have

been filed at all.” Whitney Bank v. Rayford, 21-407, p. 3 (La.App. 1 Cir. 4/5/22), 341

So.3d 741, 745 (citing Aymond v. Citizens Progressive Bank, 52,623 (La.App. 2 Cir.

6/26/19), 277 So.3d 477, writ denied, 19-1200 (La. 10/15/19), 280 So.3d 602). See

also Gaspard v. Safeway Ins. Co., 15-1197 (La.App. 1 Cir. 8/31/16), 202 So.3d 1128.

Any claims raised by Mr. Arvie in his second and third amended petitions cannot be

considered as the trial court denied leave to file those amended petitions. Thus, since

Mr. Arvie’s ultra vires defense was only alleged in his second and third amended

petitions, it was not considered by the trial court and shall not be considered by this

court.

Mr. Arvie cannot now argue that, based on the claims asserted in his third

amended petition, the trial court erred in granting the motion to disqualify. The third

amended petition is of no effect and shall not be considered because the trial court

did not grant leave to file it. This assignment of error is without merit.

Assignment of Error Numbers Four and Five

Both of these assignments of error assert that the trial court erred in preventing

Mr. Arvie from proceeding with his third amended petition. We will, therefore,

address them together.

Mr. Arvie asserts in his fourth assignment of error that the third amended

petition laid out the factual basis for his civil action alleging usurpation of office by

members of a Louisiana nonprofit corporation. The third amended petition sought a

writ of quo warranto pursuant to La.Code Civ.P. art. 3901, which directs an

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individual to show cause by what authority he claims to hold office, preventing the

usurpation of office or powers. Mr. Arvie claims in his appellant brief that the

Church Defendants hold office without having been elected by any corporate

resolution of the members of the Church. Since the trial court did not consider the

facts of the third amended petition, Mr. Arvie argues that it erred by basing its final

judgment on an improper foundation, and that “[r]elevant evidence should be

allowed to show the Charter is a byproduct of usurpation of office.” Mr. Arvie does

not give any indication of what “relevant evidence” he may be referring to.

Mr. Arvie next asserts in his fifth assignment of error that the third amended

petition included a civil action alleging that members who usurped the offices of a

Louisiana nonprofit corporation refused a voting member of the right to examine the

Church’s corporate records. He argues that, as a member of the corporation, the

Church, he had a right to examine the records of the Church, citing La.R.S. 12:223.

However, his requests to examine the Church records were refused by the “defendant

usurpers (Doucet, Washington, Smith, and several others).” Mr. Arvie now argues

that legal error has occurred because he has been denied “the opportunity to present

relevant evidence on the subject prior to final adjudication.”

“The decision to disallow an amendment to a petition after the answer is filed

is within the sound discretion of the trial court, and that decision should not be

disturbed absent an abuse of that discretion.” Khoobehi Properties, L.L.C. v.

Baronne Development No. 2, L.L.C., 19-278, p. 15 (La.App. 5 Cir. 12/18/19), 288

So.3d 224, 234.

After reviewing Mr. Arvie’s third amended petition, we note that any facts

and allegations presented in that amended petition existed at the time he filed his

original and supplemental petitions. Additionally, we do not find that anything

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alleged in the third amended petition created an individual claim on behalf of Mr.

Arvie. Even if Mr. Arvie had been allowed to examine the Church records and even

if those records supported his allegations of usurpation of office by the Church

Defendants, he still has not alleged any personal right of action in his favor, as an

individual. “The right to amend does not extend to situations where it is apparent

that the defect could not be corrected by amendment. Amendment is not permitted

when it would be a vain and useless act, such as after the grant of a peremptory

exception.” Bucks v. DirecTECH Southwest, 52,474, p. 16 (La.App. 2 Cir. 2/27/19),

266 So.3d 467, 477 (citations omitted), writ denied, 19-701 (La. 9/16/19), 278 So.3d

970. We find that allowing Mr. Arvie to file the third amended petition would not

have cured the deficiencies of the original petition and supplemental and amended

petition. As such, the trial court did not abuse its discretion in denying Mr. Arvie

leave to file his third amended petition. Assignments of error numbers four and five

are without merit.

Assignment of Error Number Six

Mr. Arvie asserts in his sixth assignment of error that the trial court erred by

finding that the third amended petition does not state a cause of action or right of

action where the petition alleges fraud, conspiracy, defamation, and denial of access

to court.

As previously discussed under assignment of error number three, the trial

court denied Mr. Arvie leave to file the third amended petition, a decision which we

affirm. As such, the third amended petition was never considered, as it is totally

without effect and deemed to not have been filed. See Whitney Bank, 341 So.3d 741.

At the time the trial court considered Defendants’ peremptory exceptions of no right

of action and no cause of action, only the original petition and the supplemental and

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amended petition had been filed in the record. Thus, the trial court only granted

peremptory exceptions as to those petitions. It never reached the issue of whether

the third amended petition stated a right of action or cause of action. Mr. Arvie

cannot raise an issue on appeal which was never before the trial court.

This assignment of error is without merit.

Assignment of Error Number Seven

In his final assignment of error, Mr. Arvie asserts that the trial court abused

its discretion by finalizing the proceedings without providing a registered Louisiana

nonprofit corporation—the Church—a window of opportunity to hire a lawyer to

represent the interests of the corporation. Mr. Arvie claims that the Church was

named as a plaintiff by a member of the corporation—himself—who timely filed a

civil action against the corporation alleging that several members performed acts on

behalf of the corporation when they had not been elected to such a position by a

majority vote.

In summary, since the trial court granted the Cox Defendants’ motion to

disqualify finding that Mr. Arvie could not represent the Church’s civil action as an

unlicensed attorney, Mr. Arvie now argues that the trial court should have given the

Church additional time to hire an attorney to represent it in this matter before

dismissing the entire lawsuit.

First, there is no indication from anyone associated with the Church, other

than Mr. Arvie, either in the record or at the May 25, 2023 hearing, that the Church

actually wants to pursue the claims raised by Mr. Arvie. Second, the right to hire an

attorney to represent the Church in this lawsuit belongs to the Church, not to Mr.

Arvie. Mr. Arvie is, therefore, not the proper person to bring this claim, especially

since he has been disqualified from representing the Church’s interests.

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This claim is without merit.

DECREE

For the foregoing reasons, the June 2, 2023 Judgment and the May 30, 2023

Omnibus Order Dismissing All Claims are affirmed. Costs of this proceeding are

assessed to Plaintiff/Appellant Hubert Arvie.

AFFIRMED.

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