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Saucier v. Washington

Court of Appeals of Louisiana, Third Circuit

September 20, 2017

WILBERT J. SAUCIER, JR.
v.
ROBERT E. WASHINGTON, SR., ET AL.

         ON WRIT OF REVIEW FROM THE ALEXANDRIA CITY COURT PARISH OF RAPIDES, DOCKET NO. 130031 HONORABLE RICHARD E. STARLING, JR., CITY COURT JUDGE, WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT RENDERED; REMANDED WITH INSTRUCTIONS.

          Chris J. Roy, Jr. A Law Corporation and Mark D. Plaisance Attorneys for Applicants/Defendants, Robert E. Washington, Sr., et al.

          Michael L. Glass Attorney for Respondent/Plaintiff, Wilbert J. Saucier, Jr.

          Saunders, J., concurs in the result reached. J. Savoie concurs with reasons.

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, John D. Saunders, Phyllis M. Keaty and Kent D. Savoie, Judges.

          SYLVIA R. COOKS, JUDGE

         PROCEDURE AND FACTUAL BACKGROUND

         Robert E. Washington, Sr.'s (Washington) ancestors, the Harrell family, acquired a 61.67 acre tract of land in 1929. Simon and Clara Harrell farmed the property and raised 16 children on this land. The family had undisturbed peaceable use of a right-of-way to their land for more than 80 years. In 1994, Wilbert J. Saucier, Jr. (Saucier) purchased 2, 200 acres of land known as Erris-Omega Plantation. This large tract completely surrounds the Harrell heirs' acreage (Harrell acreage). Saucier tried, by his admission, multiple times to buy the Harrell acreage to no avail. In 1999, Saucier filed suit against the Harrell heirs claiming garbage flowed in flood waters from a nearby canal bordering the Harrell acreage onto his property. This suit was first filed in District Court and assigned to Judge Donald Johnson. Washington pointed out truthfully in an on-line blog exchange at issue here that Saucier first filed his garbage claim in district court but it was assigned to an African-American Judge. Saucier dismissed his action without prejudice and re-filed it in Pineville City Court where it would be heard by Judge Phillip Terrell (Terrell), a white judge. Judge Terrell later ran for District Attorney and while campaigning discussed his ruling in the Harrell/Saucier matter on the local radio talk show that is also at issue here. Washington, as a representative for the Harrell family, escorted the Judge to the site to show him the garbage. During this visit, Washington showed the Judge that there were "baby diapers and other paraphernalia" and "beer and liquor bottles" on Saucier's property. He explained to the Judge the Harrell family had no infants at the camp house and the Harrell family did not drink alcohol. Judge Terrell eventually awarded Saucier $15, 000.00 in damages for the garbage, plus $2, 000.00 for costs and interest. The Harrell heirs tried to pay the money judgment, but Saucier would not accept payment and instead filed a lien against the Harrell heirs' property. The Harrell heirs asked the district court to compel Saucier to accept payment and the court eventually ordered him to do so. This matter was assigned to Judge Donald Johnson, who the article later written by Mr. Aswell quotes as saying: "he did not know how things were done in Pineville, but that the case looked suspicious to him but he was helpless under the law to remedy the situation." Saucier did not present anything in this record to show that this statement was not made by Judge Johnson. Further, there was no affidavit introduced by Saucier from Aswell to say where he obtained that information.

         In 2004, Saucier constructed a ten (10) foot tall fence that surrounds the Harrell tract, along with a ten (10) foot wide cattle guard and two gates crossing the right-of-way to the Harrells' property. He notified the Harrells and provided them with two keys to the gates. The Harrell family, unable to pass through the gates with their tractors and other farm implements, filed suit against Saucier to enjoin him from interfering with their servitude of passage across his property which they had used since 1929. The action was apparently set for trial in November, 2008, but at some stage of the proceeding the parties agreed in open court, according to Saucier, and this court's previous opinion, to enter into a settlement whereby the Harrells would gain a servitude of passage over his property, they would agree to pay for a surveyor to set boundaries, they would pay for any widening of the gates, and the court would later determine any compensation due Saucier.[1] The choice of surveyor depended on Saucier's approval as did any enlargement of the gates which were too narrow to allow the Harrells to pass equipment through. The entire proposed settlement agreement was also contingent on approval by the district court in Grant Parish that was handling the Harrell succession matter. The Harrell heirs did not execute any settlement documents and alleged they did not agree to such an arrangement. Saucier, in March, 2009, filed a motion to enforce the settlement agreement which was fixed for April 20, 2009. The Harrells' lawyer asked for a continuance and did not show up for the hearing. The lawyer filed a motion by facsimile on April 15, 2009, requesting the continuance of a hearing set for "May 20, 2009." The clerk received the hard copy of the motion on April 27, 2009 and it was signed by the court. But the hearing had already occurred on April 20, 2009, when the trial judge granted the motion in favor of Erris-Omega ordering the Harrells to execute and fulfill the terms and conditions contained in the servitude agreement within sixty days of the date of the judgment. Notice of this judgment was received by the Harrells' lawyer on April 30, 2009. In June, 2009, and within the 60-day window, the Harrells filed a petition to annul this judgment. Saucier filed an exception of no cause of action to the petition to annul. The Exception was fixed for hearing on September 28, 2009. The Harrells and their lawyer appeared for the hearing. On December 1, 2009, the trial judge granted Saucier's exception of no cause of action dismissing the Harrells' petition to annul. The trial judge also dismissed all of the Harrells' claims for injunctive relief and recognition of a servitude of passage with prejudice for their failure to execute and fulfill the settlement agreement within sixty days as ordered in the April 20, 2009 ruling. He also prohibited the Harrells from entering upon Saucier's property in the future. The Harrells filed an appeal with this court and the panel affirmed the judgment.[2] The Harrells then filed writs with the Louisiana Supreme Court. On December 17, 2010, the Supreme Court reversed our ruling and the trial court rulings sustaining the exception of no cause of action, thereby reinstating the Harrells' action to annul and further finding that "the [judgment] goes well beyond the initial pleadings by granting relief not prayed for." Significantly, the court made the following observations and rulings:

WRIT GRANTED. The courts have recognized that a judgment may be annulled for fraud and ill practices when (1) the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief and (2) enforcement of the judgment would be unconscionable or inequitable. Calcasieu Parish School Board v. Parker, 02-0339 (La.App. 3 Cir. 10/2/02), 827 So.2d 543, writ denied, 02-2719 (La.1/10/03), 834 So.2d 440. Plaintiffs' Petition to Annul, which must be considered on the face of the pleading in ruling on an exception of no cause of action, alleges sufficient facts to assert a cause of action under La. C.C.P. art. 2004 to annul the April 20, 2009, judgment for fraud and ill practices. Not only was the judgment rendered in plaintiffs' and counsel's absence, due in part to confusion over a continuance request, but it goes well beyond the initial pleadings by granting relief not prayed for. In addition, the record does not support the defendant's assertion that a settlement of the claims was reached by the parties. In fact, price was still at issue and the succession representative had not yet obtained court approval. Accordingly, the judgments of the court of appeal and the trial court are reversed, and the case is remanded to the trial court for further proceedings on plaintiffs' petition to annul the April 20, 2009, judgment of the trial court.

Succession of Harrell v. Erris-Omega Plantation, 10-2059 (La. 12/17/10), 50 So.3d 158 (emphasis added).

         The Supreme Court remanded the matter for "further proceedings on plaintiffs petition to annul the April 20, 2009 judgment of the trial court." Plaintiffs' lawyer again did not show up after filing a motion to continue. On August 24, 2011, the judge then dismissed the nullity suit with prejudice. We affirmed[3] and the supreme court denied writs.[4]

          Saucier thereafter addressed a letter to the Harrell heirs and sent a copy to his attorney and their attorney in essence informing them that the case was final and over in all respects. He declared that the December 1, 2009 judgment was final with the supreme court's denial of writs. Contrary to Saucier's assertion in his letter to the Harrells, the supreme court denial of writs has no meaning other than the court simply refused to consider the matter. "A writ denial by this Court has no precedential value." St. Tammany Manor, Inc. v. Spartan Bldg. Corp., 509 So.2d 424, 428 (La.1987).[5] As noted, the supreme court reversed the December 1, 2009 judgment dismissing the annulment action and further reversed the portion which dismissed the Harrells' petition seeking injunctive relief and recognition of a servitude of passage, and which barred them from entering upon Saucier's property forever. Saucier's later pronouncement to the Harrells that they now are forever barred from seeking a servitude of passage to their ancestral property references the trial court's December 1, 2009 judgment which has been set aside and has no effect.

          In his letter, Saucier also laments the long years of struggle in the courts for the Harrells and "benevolently" allows them access to their "forever unreachable" property to remove movable property within two weeks. He reminds them that he often offered to buy their property but they "rudely rebuffed" him. He then reminds them they owe $1, 598.57 in court costs and demands he be notified within five days of their intent to voluntarily pay or he will have to sue them again.

         Subsequently, Saucier filed the present defamation suit against Washington and Aswell, publisher of Louisiana Voice, alleging they defamed him by making comments in an on-line article (written by Aswell) and in the blog posts and comments concerning the subject of the article "politics at its worst." Saucier also alleged in his amended petition that Washington defamed him on radio and in campaign literature published in the district attorney race. Washington and Aswell filed motions to protect their constitutionally protected right to free speech on matters of public interest through Louisiana's anti-SLAPP (strategic lawsuits against public participation) motion provided in La.Code Civ.P. art. 971(emphasis added):

A. (1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.
. . . .
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1)"Act in furtherance of a person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue" includes but is not limited to:
(a) Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) "Petition" includes either a petition or a reconventional demand.
(3) "Plaintiff" includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention.
(4) "Defendant" includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

         It is noteworthy that the Louisiana legislature set forth its reasons for and purpose of this law:

Section 2. The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the legislature that the Article enacted pursuant to this Act shall be construed broadly.

La.Code Civ.P. art. 971, comments (emphasis added).

          As the U.S. Fifth Circuit noted in Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 177 (5th Cir. 2009)(emphasis added):

. . . Article 971 aims to serve the substantial public interest of protecting those exercising their First Amendment rights from the chilling effect of defending meritless and abusive tort suits. Article 971 does so by immunizing speakers from suits stemming from the exercise of First Amendment rights, thus preserving both an individual's right to speak and the public's collective interest in free and robust debate.

         The trial court granted Aswell's motion to dismiss but denied Washington's motion. Saucier filed a writ with this court seeking to overturn the trial court's dismissal of Aswell. Washington filed a writ with this court seeking to overturn the trial court's denial of his motion to dismiss. The writs were consolidated in this court. In a separate ruling we denied Saucier's writ seeking to overturn the trial court's granting of Aswell's motion to dismiss. Wilbert Saucier, Jr. v. Robert E. Washington, Sr., 17-564 (La.App. 3 Cir. 7/24/17).

         LEGAL ANALYSIS

         Mr. Washington's "Anti SLAPP" Motion

         The trial court's action denying Washington relief is immediately reviewable by this court on writs as the federal ...


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