WILBERT J. SAUCIER, JR.
ROBERT E. WASHINGTON, SR., ET AL.
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.
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.
composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R.
Cooks, John D. Saunders, Phyllis M. Keaty and Kent D. Savoie,
R. COOKS, JUDGE
AND FACTUAL BACKGROUND
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.
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. 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. 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
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).
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 and the supreme
court denied writs.
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). 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
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.
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.
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
(3) "Plaintiff" includes either a plaintiff or
petitioner in a principal action or a plaintiff or petitioner
(4) "Defendant" includes either a defendant or
respondent in a principal action or a defendant or respondent
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
La.Code Civ.P. art. 971, comments (emphasis added).
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.
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).
Washington's "Anti SLAPP" Motion
trial court's action denying Washington relief is
immediately reviewable by this court on writs as the federal