The opinion
SALVADOR J. RANDAZZO, * NO. 2021-CA-0679
INDIVIDUALLY AND AS
EXECUTOR OF THE *
SUCCESSION OF LAWRENCE COURT OF APPEAL
J. RANDAZZO AND *
SUCCESSION OF JOSEPHINE FOURTH CIRCUIT
L. RANNDAZZO AND *
LORENE A. RANDAZZO STATE OF LOUISIANA
*******
VERSUS
PETRINA RUIZ
IMBRAGUGLIO, ET AL
APPEAL FROM
ST. BERNARD 34TH JUDICIAL DISTRICT COURT
NO. 15-1017, DIVISION “D”
Honorable Darren M Roy,
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Dale N. Atkins, Judge Pro
Tempore Lynn M. Luker)
Salvador J. Randazzo
SALVADOR J. RANDAZZO, PLC
321 Jade Court
Madisonville, LA
COUNSEL FOR PLAINTIFFS/APPELLANTS
Erica N. Beck
LAW OFFICES OF SIDNEY D. TORRES, III, APLC
8301 W. Judge Perez Avenue, Suite 303
Chalmette, LA 70043
Freeman R. Matthews
ATTORNEY AT LAW
8301 West Judge Perez Drive, Suite 303
Chalmette, LA 70043
COUNSEL FOR DEFENDANTS/APPELLEES
AFFIRMED
May 25, 2022
DNA
TFL
LML
Appellants, Salvador J. Randazzo, individually and as executor of the
successions of Lawrence J. Randazzo and Josephine L. Randazzo, and Lorene A.
Randazzo (hereinafter collectively “Appellants”), seek review of the trial court’s
May 10, 2021 judgment, which denied their Motion for Injunctive Relief and
granted the Motion to Dissolve the Temporary Restraining Order filed by
Appellees, Sidney D. Torres, III, and Lena Torres Nunez, individually and as
independent administrator of the succession of Lena Randazzo Torres (hereinafter
collectively “Appellees”). For the following reasons, we affirm the trial court’s
judgment.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Petition for Damages
Appellants and Appellees are some of the members of the Randazzo family.
Members of the family inherited property known as the Hilan Double Lot and
Highland Avenue property (hereinafter “the Property”). The family members
exercised ownership of the Property through a family-owned corporation, which is
called the Randazzo Property Corporation (hereinafter “Corporation”).
1
In 2018, the Corporation, through its attorney, Sidney D. Torres, III
(hereinafter “Mr. Torres”), who is also one of the Appellees, filed a Petition for
Damages (hereinafter “Petition”) against several defendants, including the St.
Bernard Parish Government (hereinafter “the Parish”) and its contractor, Hard
Rock Construction Company, L.L.C. (hereinafter “Hard Rock Construction”). The
Petition alleged, in pertinent part, that the Parish and Hard Rock Construction had
illegally encroached on the Property.1 According to Mr. Torres, who has served as
the Corporation’s attorney since its formation in 1982, he drafted the petition
according to recommendations from one of the Appellants, Salvador J. Randazzo
(hereinafter “Mr. Randazzo”).2
Proposed Settlement Agreement
After filing the Petition, Mr. Torres negotiated a proposed settlement
agreement (hereinafter “Proposed Settlement Agreement”) with the Parish and
Hard Rock Construction. Erica Beck (hereinafter “Ms. Beck”), a member of Mr.
Torres’ law firm, sent an e-mail on August 17, 2020, to the shareholders of the
Corporation to notify them of the Proposed Settlement Agreement. In the e-mail,
Ms. Beck recommended the Proposed Settlement Agreement and outlined the
following terms from it:
1 The lawsuit is entitled Randazzo Property Corporation v. Hard Rock
Construction Company, L.L.C., docket number 2018-1701, Division B, 34th JDC,
Parish of St. Bernard.
2 An e-mail from Mr. Randazzo to Mr. Torres, which is dated July 31, 2018,
included the following:
Sidney,
Here is a draft of the lawsuit against St. Bernard Parish Government,
Hard Rock Construction and its engineers/surveying company and
their insurers.
2
1. Randazzo Property Corp. transfers ownership of the land
directly underneath the encroachments to St. Bernard Parish
and grants the Parish a three (3) foot servitude of access
immediately surrounding the encroachments.
2. St. Bernard Parish agrees to formally revoke the Third Street
road dedication on both sides of Highland Ave., which resolves
any potential title issues related to the [Corporation]’s
ownership of the [Property].
3. [The Corporation] receives new surveys of the re-subdivided
property on both sides of Highland Ave. at no costs to it.
4. [The Corporation] receives payment of $24,000.
Ms. Beck also noted that the Corporation appraised the Property at $32,000.00,
while the Parish’s appraisal of the Property was $24,800.00. After learning that
Appellants objected to the Proposed Settlement Agreement, on September 4, 2020,
Ms. Beck sent out another notice and an agenda, which relayed that the
Corporation’s President, Lena Randazzo Torres, intended to call a special meeting
of shareholders on September 25, 2020.
The September 25, 2020 Meeting
At the September 25, 2020 meeting (hereinafter “Meeting”), with the
exception of Appellants’ interests, the shareholders’ interests were represented by
signed proxies. The signed proxies were made available at the Meeting. Those
represented at the Meeting and the value of their shareholder interests as indicated
in the Roll Call vote included the following:3
PRESENT:
LENA R. TORRES, PRESIDENT 40%
by proxy through Erica Beck
3 Other persons who attended the meeting included Lorene A. Randazzo; Mr.
Torres; an attorney, Freeman R. Matthews; the court-appointed facilitator; and the
facilitator’s employee.
3
SUCCESSION OF MANUEL J. RANDAZZO4 20%
by proxy through Woody Woodruff
SUCCESSION OF LAWRENCE J. RANDAZZO 20%
& JOSEPHINE RANDAZZO
through its executor, Salvador J. Randazzo
HEIRS OF CAMILLE RUIZ5
Alex Ruiz 5%
Petrina Imbraguglio 5%
Gerald Ruiz, Jr. 5%
by proxy through Erica Beck
Cristy Ourso 5%
by proxy through Rodney Ourso
Ms. Beck served as the proxy vote for Lena Randazzo Torres, who was the
President of the Corporation, and acted as representative of a combined fifty-five
(55%) of the proxy shareholder interests. Additionally, Ms. Beck chaired the
Meeting over Appellants’ objections. Appellants demanded copies of the proxies,
documentation of the standing of the proxy shareholders, and the proxies’
entitlement to vote. Although noting Appellants’ objections, Ms. Beck proceeded
with the vote. All the represented interests, with the exception of Appellants,
voted to approve the Proposed Settlement Agreement.
Motion for Temporary Restraining Order and Injunctive Relief
After the Meeting, on October 15, 2020, Appellants filed a “Motion for
Temporary Restraining Order and Injunctive Relief” (hereinafter “Motion for
Injunctive Relief”) against the heirs of decedent Camille Ruiz, namely Petrina Ruiz
Imbraguglio, Alex Ruiz, and Gerald J. Ruiz, Jr.; Cristy Ruiz Ourso; the heirs of
decedent, Manuel J. Randazzo, Sr.; Lena Randazzo Torres; the Corporation; and
Mr. Torres. They sought to enjoin future shareholder meetings for failure of the
4 Manuel J. Randazzo, Sr., died in 2019.
5 Camille Ruiz died in 2018.
4
Meeting to comply with Louisiana business corporation law; and they sought to
enjoin approval and enforcement of the Proposed Settlement Agreement.
Appellants contested, in part, the validity of the proxies cast involving the heirs of
Manuel J. Randazzo, Sr., and Camille Ruiz, as well as Mr. Torres’ standing to
negotiate the Proposed Settlement Agreement. In response, the trial court issued a
temporary restraining order, which restrained and enjoined the setting of any more
meetings of shareholders or directors during the pendency of the proceedings.
Additionally, the temporary restraining order restrained and enjoined any action
concerning the Property, including, but not limited to any meetings or agreements
with the Parish, any representatives of the Parish, and Hard Rock Construction.
Motion to Dissolve Temporary Restraining Order
On October 19, 2020, Appellees filed a “Motion to Dissolve Temporary
Restraining Order and Opposition to Motion for Injunctive Relief” (hereinafter
“Motion to Dissolve”).6 Appellees argued that Appellants did not demonstrate
irreparable harm so as to warrant issuance of a temporary restraining order or a
preliminary injunction; moreover, Appellees averred that the Corporation secured
proper shareholder authority to approve the Proposed Settlement Agreement. The
trial court conducted a hearing on Appellants’ Motion for Injunctive Relief and
Appellees’ Motion to Dissolve on May 6, 2021.
6 The Motion to Dissolve Temporary Restraining Order and Opposition to
Injunctive Relief was initially filed by Lena Randazzo Torres and Mr. Torres.
However, Lena Randazzo Torres died in 2021. Thereafter, her daughter, Lena
Torres Nunez, was substituted as a party as the independent administratrix of the
estate. Because Ms. Torres died intestate, Lena Torres Nunez and Mr. Torres, as
her children, inherit in equal shares to her interests in the present matter.
5
May 6, 2021 Hearing
At the hearing, Appellees, through their counsel, Ms. Beck, emphasized that
Ms. Beck sent notice of the Proposed Settlement Agreement to all shareholders and
that Appellees formally noticed a corporate meeting once Appellants objected to
the Proposed Settlement Agreement. Appellees explained that most shareholder
members submitted proxies because they wanted to avoid a contentious family
meeting. Further, Appellees stressed that the proxy statements were detailed and
specifically outlined how each party intended to vote. They also emphasized that
proxies are allowable under Louisiana business corporation law. Ms. Beck
explained the proxy votes and her role as chair of the Meeting as follows:
As the proxy for Ms. Lena [Randazzo Torres], I did run the meeting,
as she was the president. We had - - we have all the numbers laid out
in there. But essentially, [she is] a 40% owner[,] and Mr. [Manuel J.]
Randazzo[, Sr.]’s wife, who was inheriting everything under his share
[,] was a 20 percent owner. Her attorney was there with a signed
proxy, Mr. Woodruff. We each had 40% and 20%. In addition, the
Ruiz heirs, Ms. Camille Ruiz’s children, had proxies. I had three of
them. And then Ms. Ourso’s husband attended, as well with her
proxy. They represented another 20 percent. They did not have a
succession open, but they were the heirs and they had season [sic].
That would bring it to 80 percent in favor of this settlement.
The settlement is reasonable. The reasonableness of the settlement [is
not] really before this court directly, but we do have documentation in
there as to the settlement and why we believe it is reasonable. Other
parties were represented by counsel, who showed us proxies believing
it was reasonable. We proceeded that way. [We have] got the
judgment of possession for Mr. Wooduff’s case showing that his heir
had full possession by a court order prior to the meeting and, you
know, even if there was something we [did not] like about the
meeting, we would have been prevented from having another meeting
this whole time because of the [temporary restraining order] that was
put in place. So [it is] not like, [there is] something we [do not] like,
we want to do it again, we [could not] do that.
Appellees added that the terms of the Proposed Settlement Agreement
reasonably favored the Corporation because the encroachment permitted was
6
relatively small; the shareholders received $24,000.00, which constitutes nearly the
entirety of the Parish’s $24,800.00 appraised value of the Property; and the terms
granted the ability to list the Property for sale.
Appellants’ counsel, Mr. Randazzo, relayed that Appellants wanted to
remove the encroachment. He asserted he did not trust the Parish and that “[there
is] nothing that St. Bernard Parish can say to me that [I am] going to take at face
value.” He described the Proposed Settlement Agreement as a “one-sided deal”
and that “they may as well have left the defense attorneys to write it up.” With
reference to the meeting and the proxy votes, he argued as follows:
But the way that that meeting was called - - and I think the way future
meetings were called - - and I also had spent many time reading
Professor Morris’s works on the new business corporation law. And
she talks about proxies. Proxies are allowed, Judge. As far as - - I
checked with Mr. Nunez’ office. [There is] no succession opened for
Camille Ruiz. [There is] no succession opened for P[e]trina
Imbraguglia. They just opened the succession or [sic] Lena Randazzo
[Torres].
Your Honor, a proxy has to be based in some legal - - in a legality.
You [cannot] simply go to somebody and say - - could you imagine
you had 10,000 shares in Exxon, Judge, and you died. They went to
your son. And your son tries to go and vote your $10,000 shares of
Exxon? They would kick you out the door. They would want to
know: Did you open Mr. Roy’s succession? Do you have letters
testamentary? Do you have a judgment of possession?
I asked Mr. Ourso all of those questions at the meeting. He said: No,
we [did not] open succession. No, we have no judgment of
possession, but [I am] here with a proxy. [I am] here with a proxy
that Ms. Beck sent to him. [I am] here with you and [I am] joining the
40 percent shareholders to push this through without any
consideration of whether or not it is in the best interest of the []
Corporation. I do not believe it is.
And -- as you read this, Lena [Randazzo] Torres was a qualified
director and she has - - she could not allow her son to handle this
settlement because it is - - [there is] a material interest - - familial
interest, which is barred by the new corporation law. They simply
ignore the new corporation law. They simply ignore succession law
7
that says you have to [have] a succession open and be appointed
executor or administrator then proceed.
Mr. Randazzo further expressed Appellants’ objection to Ms. Beck’s
chairing the Meeting in the place of Lena [Randazzo] Torres, in the following
respects:
If you read the new corporation law - - she [Ms. Beck] says: Just
because Lena [Randazzo] Torres was president and gave her a proxy,
she should command the meeting. No, she cannot, Your Honor. Any
meeting of shareholders or directors, the chairperson of the meeting
has to be elected by those members present, whether they are
members of the board of directors or members of the shareholders.
She [cannot] walk in, as she tried to do and take control of the
meeting and say: Here I am. I have everybody’s proxy. We’re going
forward. And [that is] why I filed for a temporary restraining order,
Judge.
Appellees countered that Appellants’ real reason for opposing the Proposed
Settlement Agreement was revealed in paragraph 23 of the Motion for Injunctive
Relief wherein Mr. Randazzo stated that “he would not consider entering into any
settlement with St. Bernard Parish Government while St. Bernard Parish
Government left unsettled the litigation against the plaintiffs in rule and other
egregious conduct by St. Bernard Parish Government against the Lawrence and
Josephine Randazzo family.” In light of same, Appellees requested that the trial
court dissolve the temporary restraining order, deny the request for injunctive
relief, and reserve Appellees’ right to seek damages for wrongful issuance of a
temporary restraining order.
Appellants conceded that they had some issues with the Parish and
expressed concerns about the Parish’s relationships with some members of the
Corporation. Appellants pointed out that a family member’s husband works for the
Parish’s Fire Department and that Mr. Torres’ son has a garbage contract with the
Parish, “[s]o [there are] a lot of disqualifications as far as their - - shares that [she
8
is] talking about being able to vote.” Appellants maintained that the effort to
approve the Proposed Settlement Agreement contravened Louisiana law; was not
in the best interest of the Estates of Lawrence Randazzo and Josephine Randazzo;
and that they “need to be compensated correctly.”
Judgment
At the conclusion of the hearing, the trial court orally ruled that “[t]he Court
is going to grant the motion to dissolve the temporary restraining order and deny
the injunctive relief” as well as “deny any penalties against Mr. Randazzo, such as
attorney’s fees and so forth.” The trial court rendered written judgment on May
10, 2021, and it provided in pertinent part:
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:
(1) Lena T[orres] Nunez, individually and as Independent
Administrator for the Succession of Lena R[andazzo] Torres, and
Sidney D. Torres, III’s Motion to Dissolve the Temporary Restraining
Order is granted, and the Temporary Restraining Order issued October
15, 2020, in the above captioned proceeding is hereby dissolved;
(2) Salvador Randazzo, individually and as Executor for the
Succession of Lawrence J. Randazzo and Succession of Josephine L.
Randazzo, and Lorene Randazzo’s Motion for Injunctive Relief is
denied.
(3) Lena T[orres] Nunez, individually and as Independent
Administrator for the Succession of Lena R[andazzo] Torres, and
Sidney D. Torres, III’s request for damages, attorneys’ fees, and costs
is denied.
This appeal ensued.7
7 On May 18, 2021, Appellants filed a notice of intent to seek a writ of the trial
court’s written May 10, 2021 judgment. Appellants obtained an extension of time
and timely filed their writ application on June 11, 2021. This Court, in Randazzo,
et al v. Imbraguglio, et al, 2021-0355 (La. App. 4 Cir. 7/29/21), noted that the trial
court’s judgment denying injunctive relief was an appealable judgment pursuant to
La. C.C.P. art. 3601(C). Inasmuch as Appellants’ notice of intent was done within
fifteen days of the judgment, Appellants’ writ was granted for the sole purpose of
9
ASSIGNMENTS OF ERROR
On appeal, Appellants assert six assignments of error:
1. Whether the shareholders meeting of September 25, 2020 was
improperly held because there was no election of a meeting
“chairperson” as required by the Louisiana business corporation
laws, and Erica Beck acted as Corporate Secretary, when the duly
elected Corporate Secretary, and only living Corporate Officer was
present to perform the duties of Corporate Secretary?
2. Whether it was legal for Erica Beck to obtain proxies from the
children of decedent, Camille Randazzo Ruiz, who Erica Beck
claimed were Camille Randazzo’s legal heirs, without the
production of formal letters testamentary or a judgment of legal
possession placing said children into possession of decedent’s estate
and where Erica Beck did not produce a copy of Camille R. Ruiz’s
will or a judgment of possession, or letters testamentary?
3. Whether it was legal for Erica Beck to obtain proxies from Cheryl
Randazzo, the surviving spouse of decedent, Manuel J. Randazzo
Sr., through her attorney, Walter Woodruff, who had a proxy from
Cheryl Randazzo, but, without the production of formal letters
testamentary or a judgment of possession placing said Cheryl
Randazzo into possession of the Succession of Manuel J. Randazzo,
Sr. and where no one produced a copy of Manuel Randazzo, Sr.’s
will, a judgment of possession, or letters testamentary?
4. Whether after Erica Beck adjourned the “shareholder meeting,” was
it legal and proper for her to accept documents and make them a part
of the meeting when those documents were not produced during the
“shareholder meeting?”
5. Whether the Corporation’s President and shareholder of record of 20
percent of the outstanding shares of the Corporation and alleged
owner of another 20 shares [Lena Randazzo Torres] was properly
considered a “Qualified Director” pursuant to the amended business
corporation law, and therefore, was prohibited from having her son
act as the attorney to negotiate a settlement of a lawsuit, without
disclosing any conflicts of interest?
6. Whether the trial court committed manifest error when it denied
Appellants’ request for preliminary injunction where Appellants
established prima facie evidence of Defendants’ violation of
remanding the matter to the trial court to consider the notice of intent as a motion
for appeal. On remand, the notice of intent was converted to a motion for appeal.
10
corporation law, and by failing to apply the judicially created
exception to La. C.C.P. art. 3601, which allows for the issuance of
an injunction without showing irreparable injury when the action
sought to be enjoined is a violation of a prohibitory law.
In sum, Appellants seek review of the trial court’s denial of their Motion for
Injunctive Relief.
STANDARD OF REVIEW
An appellate court reviews a trial court’s decision on the grant or denial of a
preliminary injunction under the abuse of discretion standard of review. Waiters v.
deVille, 2020-0556, p. 8 (La. App. 4 Cir. 12/30/20), ___ So.3d ___, ___, 2020 WL
8455459, at *4 (quoting Yokum v. Pat O’Brien’s Bar, Inc., 2012-0217, pp. 6-7 (La.
App. 4 Cir. 8/15/12), 99 So.3d 74, 80). Discussing the standard of review, this
Court has explained:
‘A trial court has broad discretion in the granting or denial of a
preliminary injunction, and will not be disturbed on review absent
clear abuse of that discretion.’ Cajun Elec. Power Co-op., Inc. v.
Triton Coal Co., [19]91-1816, 590 So. 2d 813, 816 (La. App. 4 Cir.
1991); Smith v. West Virginia Oil & Gas Co., 373 So. 2d 488, 493
(La. 1979). That broad standard is, of course, based upon a conclusion
that the trial court committed no error of law and was not manifestly
erroneous or clearly wrong in making a factual finding that was
necessary to the proper exercise of its discretion. See South East Auto
Dealers Rental Ass’n, Inc. v. EZ Rent To Own, Inc., [20] 07-0599, pp.
4-5 (La. App. 4 Cir. 2/27/08), 980 So.2d 89, 93.
Id. See also Ard v. GrrlSpot, LLC, 2019-0312, p. 14 (La. App. 4 Cir. 10/23/19),
___ So.3d ___, ___, 2019 WL 5432098, at *6.
DISCUSSION
Preliminary Injunction
Regarding injunctive relief, La. C.C.P. art. 3601 provides, in pertinent part:
A. An injunction shall be issued in cases where irreparable
injury, loss, or damage may otherwise result to the applicant, or in
other cases specifically provided by law . . . .
11
....
C. During the pendency of an action for an injunction the court
may issue a temporary restraining order, a preliminary injunction, or
both, except in cases where prohibited, in accordance with the
provisions of this Chapter.
“Injunctive relief is an equitable remedy, which is ordinarily only available when a
party has no adequate legal remedy.” Constr. Diva, L.L.C. v. New Orleans Aviation
Bd., 2016-0566, p. 5 (La. App. 4 Cir 12/14/16), 206 So.3d 1029, 1034. It
constitutes “a harsh, drastic remedy that should only issue where the petitioner is
threatened with irreparable harm and has no adequate remedy at law.” Id., 2016-
0566, p. 6, 206 So.3d at 1034 (quoting C. Napco, Inc. v. City of New Orleans,
2006-0603, p. 6 (La. App. 4 Cir. 3/7/07), 955 So.2d 155, 160).
“A preliminary injunction is an interlocutory procedural device designed to
preserve the existing status quo between the parties, pending trial on the main
demand.” Ard, 2019-0312, p. 14, ___So.3d at ___, 2019 WL 5432098, at *6 (citing
Desire Narcotics Rehab. Inc. v. State Dep’t of Health & Hosps., 2007-0390, p. 4
(La. App. 4 Cir. 10/17/07), 970 So.2d 17, 20). Preliminary injunctions can be
prohibitory or mandatory. Id., 2019-0312, p. 14, ___So.3d at ___, 2019 WL
5432098, at *7. A mandatory injunction “orders the doing of something[,]” while
“a prohibitory injunction seeks to restrain conduct.” Id., 2019-0312, pp. 14-15, ___
So.3d at ___, 2019 WL 5432098, at *7 (citing Denta-Max v. Maxicare La., Inc.,
1995-2128, p. 3 (La. App. 4 Cir. 3/14/96), 671 So.2d 995, 997; Yokum, 2012-0217,
p. 9, 99 So.3d at 81).
The party moving for a preliminary injunction bears the burden of proof and
must show that (1) the mover will suffer irreparable injury, loss, or damage if the
motion is not granted; (2) the mover is entitled to the relief sought; and (3) the
12
mover will likely prevail on the merits of the case. Mercadel v. New Orleans Jazz
& Heritage Festival & Foundation, Inc., 2022-0242, p. 11 (La. App. 4 Cir.
4/20/22), ___ So.3d ___, ___, 2022 WL 1165505, at *5 (citing ERG Enters., LLC
v. Green Coast Enters., LLC, 2019-1104, p. 10 (La. App. 4 Cir. 5/13/20), 299
So.3d 1194, 1201). “[T]he procedural requirements to satisfy ‘the standard of proof
required to meet the elements for a preliminary injunction differ[], contingent upon
whether the preliminary injunction sought is a prohibitory injunction or a
mandatory injunction.’” Id., 2022-0242, p. 9, ___ So.3d at ___, 2022 WL 1165505,
at *4 (quoting Ard, 2019-0312, p. 14, ___ So.3d at ___, 2019 WL 5432098, at 7).
If the mover seeks a prohibitory preliminary injunction, the mover must make a
prima facie showing; yet if the mover seeks a mandatory preliminary injunction,
the mover must demonstrate the elements by a preponderance of the evidence at an
evidentiary hearing. Id., 2022-0242, pp. 9-10, ___ So.3d at ___, 2022 WL
1165506, at *4 (quoting Ard, 2019-0312, p. 15, ___ So.3d at ___, 2019 WL
5432098, at *7).
Regarding the first element, irreparable injury is “a loss sustained by an
injured party which cannot be adequately compensated in money damages or for
which such damages cannot be measured by a pecuniary standard.” State ex rel.
Dep’t of Soc. Servs., Office of Family Support ex rel. Chesser v. Brunnette, 2003-
1965, p. 3 (La. App. 4 Cir. 6/2/04), 876 So.2d 244, 247 (quoting Terrebonne Par.
Police Jury v. Matherne, 405 So.2d 314, 319 (La. 1981)). However, if the mover
seeks a prohibitory preliminary injunction, as opposed to a mandatory one, then the
mover may be entitled to injunctive relief without the requisite showing of
irreparable injury. To avail oneself of this exception, the mover must make a prima
facie showing that the conduct sought to be restrained is unconstitutional or
13
unlawful, i.e., it constitutes a direct violation of a prohibitory law and/or a violation
of a constitutional right. Jurisich v. Jenkins, 1999-0076, p. 4 (La. 10/19/99), 749
So.2d 597, 599 (citing S. Cent. Bell Tel. Co. v. La. Pub. Serv. Comm’n, 555 So.2d
1370 (La. 1990)). See also Phillips’ Bar & Restaurant, Inc. v. City of New Orleans,
2012-1306, p. 23 (La. App. 4 Cir. 4/24/13), 116 So.3d 92, 107; Yokum, 2012-0217,
p. 8, 99 So.3d at 81. Thereafter, the trial court will grant the prohibitory
preliminary injunction if the trial court determines the following requirements: (a)
the conduct violates a prohibitory law (ordinance or statute) or the constitution; (b)
the injunction seeks to restrain conduct, not order it (i.e., is prohibitory as opposed
to mandatory); and (c) the mover has met the burden of making a prima facie
showing that he is entitled to the relief sought. See Yokum, 2012-0217, pp. 8-9, 99
So.3d at 81. “Further, the jurisprudence makes clear that only direct violations of a
prohibitory law may be enjoined without a showing of irreparable harm.” Two
Canal Street Investors, Inc. v. New Orleans Bldg. Corp., 2015-0924, p. 13 (La.
App. 4 Cir. 4/20/16), 193 So.3d 278, 287 (citing Broadmoor, L.L.C. v. Ernest N.
Morial New Orleans Exhibition Hall Authority, 2004-0211, p. 6 (La.3/18/04), 867
So.2d 651, 656). “Courts have found this prerequisite satisfied only when there has
been a clear violation of express law, not cases of arguable violations.” Id., 2015-
0924, pp. 13-14, 193 So.3d at 287 (citing Hobbs v. Gorman, 595 So.2d 1264, 1266
(La. App. 4 Cir. 1992)).
Analysis
As the procedural requirements to satisfy the standard of proof required to
meet the elements for a preliminary injunction differ depending upon whether the
preliminary injunction sought is a prohibitory or mandatory one, we commence our
analysis by determining whether the injunctive relief sought by Appellants was
14
prohibitory or mandatory. Mercadel, 2022-0242, p. 9, ___ So.3d at ___, 2022 WL
1165505, at *4 (quoting Ard, 2019-0312, p. 14, ___ So.3d at ___, 2019 WL
5432098, at 7). Appellants sought to enjoin future shareholder meetings for the
alleged failure of the Meeting to comply with Louisiana business corporation law;
and they sought to enjoin approval and enforcement of the Proposed Settlement
Agreement. Because they sought to restrain conduct rather than order conduct, this
was a request for a prohibitory injunction, not a mandatory one. Ard, 2019-0312,
pp. 14-15, ___ So.3d ___, ___, 2019 WL 5432098, at *7. Having determined that
this was a request for a prohibitory preliminary injunction, we next determine
whether Appellants made a prima facie showing that (1) they would suffer
irreparable injury, loss, or damage if the motion was not granted; (2) they were
entitled to the relief sought; and (3) they will likely prevail on the merits of the
case.
Beginning with the irreparable injury element, in their Motion for Injunctive
Relief and in briefing to this Court, Appellants argue that the preliminary
injunction should have been granted to prohibit future shareholder meetings and to
enjoin approval or execution of the Proposed Settlement Agreement. They argue
that the Proposed Settlement Agreement did not adequately compensate them or
the Corporation for the damages arising out of the Corporation’s lawsuit against
the Parish and Hard Rock Construction. Further, the underlying lawsuit also
sought an award of money damages. Thus, all known relief arising from
Appellants’ efforts to enjoin the execution of the Proposed Settlement Agreement
is susceptible to quantification in money damages. Appellants have not identified
an irreparable injury, i.e., a non-monetary or non-economic harm, which they will
15
suffer in the absence of injunctive relief. Brunnette, 2003-1965, p. 3, 876 So.2d at
247.
Rather, Appellants’ combined assignments of error, contend that Appellants
are exempt from the irreparable harm requirement because the conduct they sought
to enjoin violated one or more prohibitory laws. In assignments of error numbers
one through five, Appellants assert the violation of certain laws or formalities
regarding the negotiation and approval of the Proposed Settlement Agreement.
Specifically, in assignment of error number one, Appellants contend that the
Meeting was improper because it contained no election of a meeting chairperson
and Ms. Beck acted as corporate secretary. They assert that these actions violated
La. R.S. 12:1-7088 and La. R.S. 12:1-840(C),9 respectively. Appellants assert in the
second assignment of error that it was illegal for Ms. Beck to obtain proxies from
the children of the decedent, Camille Randazzo Ruiz, without a copy of decedent’s
will, formal letters testamentary, or a judgment of possession placing the children
into possession of the estate. Similarly, in the third assignment of error, Appellants
argue that it was illegal for Ms. Beck to obtain proxies granted by the surviving
spouse of the decedent, Manuel J. Randazzo, Sr., to her attorney without a copy of
the decedent’s will, formal letters testamentary, or a judgment of possession
8 Louisiana Revised Statute 12:1-708(A) states that “[a]t each meeting of
shareholders, a chair shall preside. The chair shall be appointed as provided in the
bylaws or, in the absence of such provision, by the board.” Appellants contend Ms.
Beck was not directly appointed by the board; instead, they argue that she
improperly installed herself as the chair based on the fact that she held the proxy of
the Corporation’s then-president, Lena Randazzo Torres.
9 Louisiana Revised Statute R.S. 12:1-840(C) assigns to the secretary the
“authority and responsibility for preparing the minutes of the directors’ and
shareholders’ meetings. . . .” Appellants suggest that inasmuch as Ms. Beck was
not the duly appointed Secretary of the Corporation, all acts she performed in that
capacity were invalid.
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placing the surviving spouse into possession of the succession. Appellants contend
that the actions outlined in assignments of error numbers two and three constitute
violations of La. R.S. 12:1-722(C).10 In the fourth assignment of error, Appellants
allege that it was illegal for Ms. Beck to accept documents and make them part of
the meeting after the adjournment of the meeting. They cite this as a violation of
La. R.S. 12:1-724.11 Further, in the fifth assignment of error, Appellants contend
that it was illegal for the qualified director of the corporation, Lena Randazzo
Torres, to permit her son, Mr. Torres, to act as the attorney in negotiating the
Proposed Settlement Agreement without having disclosed any conflicts of interest.
Appellants assert that this was a violation of La. R.S. 12:1-143.12 Based upon the
10 Louisiana Revised Statute 12:1-722(C) provides, in part, that “[a]n appointment
of a proxy is effective when a signed appointment form or an electronic
transmission of the appointment is received by the inspector of election, the
secretary, or other officer or agent of the corporation authorized to tabulate the
votes.” Appellants represent that Lorene A. Randazzo was the duly authorized
secretary of the Corporation and because she never accepted for tabulation the
proxies held by Ms. Beck or the representatives of the claimed heirs of Camille
Ruiz or Manuel J. Randazzo, Sr., the proxy votes were ineffective.
11 Louisiana Revised Statute 12:1-724(A) provides “[i]f the name signed on a vote,
consent, waiver, or proxy appointment corresponds to the name of the shareholder,
the corporation if acting in good faith is entitled to accept the vote, consent,
waiver, or proxy appointment and give it effect as the act of the shareholder.”
Appellants contend that no documentation was presented during the pendency of
the meeting to verify that Cheryl Randazzo was a named shareholder, and that it
was thus illegal for Ms. Beck to supplement the record post-meeting with the
judgment of possession to establish Cheryl Randazzo as a named shareholder.
Further, Appellants argue that the proxies submitted on behalf of Camille Ruiz’s
children were also not submitted by a judicially authorized representative of a
named shareholder. Accordingly, Appellants suggest that the acceptance of proxy
votes by Ms. Beck on behalf of Cheryl Randazzo and the Ruiz children, whom
Appellants characterize as “non-shareholders,” was illegal.
12 Louisiana Revised Statute 12:1-743 provides the following:
A. A “qualified director” is a director who meets the following
criteria:
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(1) At the time action is to be taken under R.S. 12:1-744, does not
have either of the following conflicting interests:
(a) A material interest in the outcome of the proceeding.
(b) A material relationship with a person who has such an interest.
(2) At the time action is to be taken under R.S. 12:1-853 or 1-855,
does not have a material relationship with a director described in
either Subparagraph (a) or (b) of this Paragraph and is not either of the
following:
(a) A party to the proceeding.
(b) A director as to whom a transaction is a director’s conflicting
interest transaction or who sought a disclaimer of the corporation’s
interest in a business opportunity under R.S. 12:1-870, which
transaction or disclaimer is challenged in the proceeding.
(3) At the time action is to be taken under R.S. 12:1-862, a director
who is neither of the following:
(a) A director as to whom the transaction is a director's conflicting
interest transaction.
(b) A director who has a material relationship with another director as
to whom the transaction is a director’s conflicting interest transaction.
(4) At the time action is to be taken under R.S. 12: 1-870, would be a
qualified director under Paragraph (A)(3) of this Section if the
business opportunity were a director’s conflicting interest transaction.
(5) At the time action is to be taken under R.S. 12:1-202(B)(6), a
director who is neither of the following:
(a) A director to whom the limitation or elimination of the duty of an
officer to offer potential business opportunities to the corporation
would apply.
(b) A director who is a related person to another officer to whom the
limitation or elimination would apply.
B. For purposes of this Section and R.S. 12:1-860:
(1) “Material interest” means an actual or potential benefit or
detriment, other than one that would devolve on the corporations or
the shareholders generally, that would reasonably be expected to
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alleged violations in assignments of error numbers one through five, Appellants
assert in assignment of error number six that the trial court committed manifest
error by denying their request for injunctive relief because “the action sought to be
enjoined is a violation of prohibitory law.”
Upon review, we find that Appellees’ opposition to the enumerated
violations establish that if the violations were in fact violations of prohibitory laws,
at minimum, the violations were arguable violations. See Two Canal Street
Investors, Inc., 2015-0924, p. 13, 193 So.3d at 287. Arguable violations of
prohibitory laws are not sufficient to remove an applicant from the necessity of
proving irreparable harm to obtain injunctive relief; instead, our jurisprudence
requires that the conduct enjoined be a direct violation of a prohibitory law. Id.
See also Jurisich, 1999-0076, p. 3, 749 So.2d at 599.
impair the objectivity of the director’s judgment when participating in
the action to be taken.
(2) “Material relationship” means a familial, financial, professional,
employment or other relationship that would reasonably be expected
to impair the objectivity of the director's judgment when participating
in the action to be taken.
C. The presence of one or more of the following circumstances shall
not automatically prevent a director from being a qualified director:
(1) Nomination or election of the director to the current board by any
director who is not a qualified director with respect to the matter, or
by any person that has a material relationship with that director, acting
alone or participating with others.
(2) Service as a director of another corporation of which a director
who is not a qualified director with respect to the matter, or any
individual who has a material relationship with that director, is or was
also a director.
(3) With respect to action to be taken under R.S. 12:1-744, status as a
named defendant, as a director against whom action is demanded, or
as a director who approved the conduct being challenged.
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Regardless, this Court need not substantively review whether the statutes or
succession formalities cited by Appellants hereinabove are prohibitory laws
because a petitioner is entitled to injunctive relief without the showing of
irreparable harm when the conduct sought to be enjoined is a direct violation of a
prohibitory law. See Jurisich, 1999-0076, p. 4, 749 So.2d at 599. Appellants do
not request a prohibitory injunction to enjoin Appellees from violating the cited
statutes or a mandatory injunction to compel compliance with succession laws.
Instead, they seek to enjoin future shareholder meetings that could remedy the
alleged violations, and they oppose recognition of the judgments which
purportedly legally designate Cheryl Randazzo and the Ruiz children as rightful
heirs to Manuel J. Randazzo, Sr., and Camille Ruiz, respectively. Accordingly,
this Court need only substantively review whether the conduct Appellants seek to
enjoin is reprobated by law.
Here, Appellants identify the conduct they seek to enjoin as:
1. Restraining and enjoining said parties their agents and assigns
from setting any more meetings of shareholders or directors
during the pendency of these proceedings, and
2. Restraining and enjoining same from taking any action
concerning the Hilan Double Lot, including but not limited to,
any meetings or agreements with the Parish of St. Bernard or
any of its representatives and Hard Rock Construction, L.L.C.
concerning the Hilan Double Lot.
In Hobbs, 595 So.2d at 1266-67, this Court determined that the irreparable harm
exception did not apply to an employee who sought to prevent the Sewerage &
Water Board (hereinafter “S&WB”) from prohibiting the employee from using a
S&WB vehicle to commute. The employee alleged that his rights to equal
protection under the Louisiana and United States constitutions had been violated
when the S&WB took away his assigned vehicle. Id. The Court concluded that the
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S&WB’s prohibition did not violate any express law and appeared to be a routine
business practice. Id.
Likewise, in the case sub judice, Appellants desire to enjoin shareholder
meetings merely to prohibit a vote on the Proposed Settlement Agreement of
which they disapprove. This conduct, namely prohibiting Appellees from having
shareholder meetings and/or having meetings or entering agreements with the
Parish and Hard Rock Construction regarding the Property, does not violate
prohibitory laws. On its face, resolution of litigation through negotiating or
entering a settlement agreement is not conduct reprobated by law. Appellants do
not contend or show that the Proposed Settlement Agreement was for a purpose
prohibited by law.13 Likewise, conducting a shareholder meeting to vote on a
proposed settlement agreement is not illegal. Appellants do not meet the first
requirement to be relieved of the irreparable harm factor, i.e., that the requested
injunction will enjoin conduct in clear violation of a prohibitory law. Thus, we
conclude that the trial court did not abuse its discretion in denying Appellants’
Motion for Injunctive Relief because Appellants have not demonstrated that they
are entitled to such relief. Further, having reached that conclusion, we pretermit
discussion of the remaining requirements for obtaining injunctive relief without
proving irreparable harm: because all three requirements must be met and
Appellants failed to prove one of the requirements, we need not consider the other
two requirements.
13 Louisiana Civil Code Article 1971 provides that “[p]arties are free to contract for
any object that is lawful, possible, and determined or determinable.”
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DECREE
For the foregoing reasons, the trial court’s May 10, 2021 judgment, which
denied Appellants’ Motion for Injunctive Relief, is affirmed.
AFFIRMED
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