text:
    COMMUNITY ACCEPTANCE CORPORATION v. Raymond VINET, Jr.
    No. 2005-CA-1235.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Writ Denied Oct. 6, 2006.

      Raymond Charles Vinet, Sr., Vinet & Vinet, Baton Rouge, Counsel for Defendant-Appellant.
    Penrose C. St. Amant, St. Amant & St. Amant, Gonzales, Counsel for Plaintiff-Ap-pellee.
    Panel composed of Ad Hoc Judges MARION F. EDWARDS, CLARENCE E. McMANUS, and WALTER F. ROTHSCHILD.
   MARION F. EDWARDS, Judge, Ad Hoc.

12Pefendant/appellant, Raymond Vinet, Jr., appeals from a trial court ruling which granted summary judgment in favor of plaintiff and further dismissed Vinet’s re-conventional demand. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

On March 31, 2003, defendant, Raymond Vinet, Jr. (“Vinet”), purchased a 1996 Buick Skylark from Community Acceptance Corporation. In conjunction with the sale, Vinet executed a “Combination Promissory Note, Truth-In-Lending Disclosure Statement And Security Agreement” for the amount of $5,604.48, the terms of which called for Vinet to make twenty-four installment payments of $233.52 to Community Acceptance Corporation, beginning on May 1, 2003, at an annual percentage rate of interest of 32.99 percent.

The record shows that, following a default on the note by Vinet, Community Acceptance Corporation filed suit in the Justice of the Peace Court, Third Ward, in 13Ascension Parish. Following a judgment in favor of Community Acceptance Corporation, Vinet filed for, and was granted, a de novo appeal of the Justice of Peace Court judgment to the Parish Court for the Parish of Ascension.

On February 23, 2005, Community Acceptance Corporation filed a Motion for Summary Judgment. On March 15, 2005, Community Acceptance Corporation further filed an Exception of Prescription in Parish Court, claiming that Vinet’s recon-ventional demand based on redhibition was not timely filed. On March 15, 2005, the trial court granted Community Acceptance Corporation’s Motion for Summary Judgment and further dismissed Vinet’s recon-ventional demand.

Vinet timely filed the present appeal.

LAW AND ARGUMENT

On appeal, Vinet raises two assignments of error: (1) The District Court erred in considering and granting Community Acceptance Corporation’s Exception of Prescription filed on the morning of the summary judgment hearing, and (2) The District Court erred in granting Community Acceptance Corporation’s Motion for Summary Judgment.

Appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. An appellate court must ask the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is a genuine issue of material fact remaining to be decided, and whether the appellant is entitled to judgment as a matter of law. The appellate court must consider [4whether the summary judgment is appropriate under the circumstances of the case. There must be a “genuine” or “triable” issue on which reasonable persons could disagree. Under the amended version of LSA-C.C.P. art. 966, the burden of proof remains on the mover to show “that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.” A material fact is one that would matter on the trial of the merits.

In the present case, Community Acceptance Corporation entered into evidence a Request For Admissions of Fact, along with Vinet’s answers to the Request For Admissions of Fact. Together, they read as follows:

1.On March 31, 2003 you executed a promissory note payable to the order of Community Acceptance Corporation in the sum of $5,604.48 which included $4,060.44 financed, $1,544.04 finance charges at an annual percentage rate of 32.99%, and which note is payable in 24 equal monthly installments of $233.53 each beginning May 1, 2003 with a final payment due date of April 1, 2005
ANSWER TO REQUEST FOR ADMISSION NO. 1
Admitted.
2. The contract rate as specified in the said note is 31.5% per annum.
ANSWER TO REQUEST FOR ADMISSION NO. 2
Denied32.99%
3. All payments made by you on the loan were properly credited.
ANSWER TO REQUEST FOR ADMISSION NO. 3
Admitted.
4. The correct balance due at the time suit was filed was $2,508.30 principal balance plus interest and cost.
\ ¡ANSWER TO REQUEST FOR ADMISSION NO. 4
Admitted.
5. You have made no payment since institution of suit.
ANSWER TO REQUEST FOR ADMISSION NO. 5
Admitted.
6. The signature appearing on the promissory note is your true, genuine and actual signature.
ANSWER TO REQUEST FOR ADMISSION NO. 6
Admitted.
7. The note sued upon provides that in the event the same is referred to an attorney at law for collection you are liable for 25% of both principal and interest as attorney’s fees.
ANSWER TO REQUEST FOR ADMISSION NO. 7
Admitted.

At the hearing on the Motion For Summary Judgment, the trial court makes reference to Vinet’s redhibition defense raised pursuant to Code of Civil Procedure Article 424 in the Justice of the Peace Court below. LSA-C.C.P. art. 424 provides, in relevant part:

A person who has a right to enforce an obligation also has a right to use his cause of action as a defense.
Except as otherwise provided herein, a prescribed obligation arising under Louisiana law may be used as a defense if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff. A prescribed cause of action arising under The Federal Consumer Credit Protection Act may not be used as a defense even if it is incidental to, or connected with, the obligation sought to be enforced by the plaintiff.
However, in connection with the enforcement of a negotiable instrument the defense of redhibition may not be used if it has otherwise prescribed.

(Emphasis supplied.)

Ifiln regard to claims for redhibition, LSA-C.C. art. 2534 states, in relevant part:
A. (1) The action for redhibition against a seller who did not know of the existence of a defect in the thing sold prescribes in four years from the day delivery of such thing was made to the buyer or one year from the day the defect was discovered by the buyer, whichever occurs first.
(2) However, when the defect is of residential or commercial immovable property, an action for redhibition against a seller who did not know of the existence of the defect prescribes in one year from the day delivery of the property was made to the buyer.
B. The action for redhibition against a seller who knew, or is presumed to have known, of the existence of a defect in the thing sold prescribes in one year from the day the defect was discovered by the buyer.

As Community Acceptance Corporation correctly points out, Vinet’s own affidavits filed in opposition to the Motion for Summary Judgment establishes that he first became aware of engine defects on April 4, 2003 when the vehicle was inspected by Vinet’s mechanic, Thomas Lanoux. This inspection took place approximately four days after Vinet purchased the vehicle. The record shows that Vinet’s reconven-tional demand was not filed until October 4, 2004, nearly 18 months after he allegedly discovered the vehicle’s defects.

Pursuant to LSA-C.C. art. 2534, Vinet’s claim for redhibition is prescribed on its face and, therefore, could not be used as a defense under LSA-C.C.P. art. 424. Accordingly, we find that the trial court did not err in granting Community Acceptance Corporation’s Exception of Prescription.

Next, Vinet contends that the lower court erred in granting Community Acceptance Corporation’s Motion for Summary Judgment. At the outset, we note that much of Vinet’s argument on this assignment pertains to his redhibition claim, Lwhich as we just affirmed, is prescribed. The lone issue for us to consider then, is Vinet’s claim that the promissory note/security agreement in this case is usurious.

The applicable statute governing consumer credit sales, LSA-R.S. 6:969.10, provides, in relevant part:

A. Except as otherwise provided by R.S. 6:969.11, the maximum credit service charge for any consumer credit sale that may be charged, contracted for, or received may not exceed:
(1) Class 1. For any new motor vehicle designated by the manufacturer by a year model not earlier than the year in which the sale is made: Eighteen percent per annum.
(2) Class 2. For any new motor vehicle not in Class 1, and any used motor vehicle designated by the manufacturer by year model of the same or not more than two years prior to the year in which the sale is made: Twenty-four percent per annum.
(3) Class 3. For any used motor vehicle not in Class 2 and designated by the manufacturer by year model not more than four years prior to the year in which the sale is made: Twenty-seven percent per annum.
(4) Class 4. For any used motor vehicle not in Class 2 or Class 3 and designated by the manufacturer by year model more than four years prior to the year in which the sale is made: Thirty-three percent per annum.
B. This Section does not limit or restrict the manner of contracting for credit service charges under a consumer credit sale, whether by way of precomputed interest, simple interest, or otherwise, so long as the annualized credit service charge rate computed on an actuarial or United States Rule basis over the entire scheduled term of the transaction, assuming that all payments will be made when due and disregarding the possible effects of early prepayment or acceleration of maturity, does not exceed the maximum rates permitted in this Chapter.

In the present case, Vinet purchased a 1996 Buick Skylark in 2003 when the vehicle was seven years old, thereby requiring the transaction to fall under Class 4 of LSA-R.S. 6:969.10. Under that designation, Community Acceptance Corporation could not have charged Vinet more than 33 percent per annum. In his own answer to request for admissions, Vinet stipulates that the rate charged to him |sby Community Acceptance Corporation was 32.99 percent, within the legal limits. Therefore, we find this assignment to be without merit.

Accordingly, for the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.

      . Bua v. Dressel, 96-79 (La.App. 5 Cir. 5/28/96), 675 So.2d 1191, writ denied, 96-1598 (La.9/27/96), 679 So.2d 1348 (citing Reynolds v. Select Properties, Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180).

      . Tassin v. City ofWestwego, 95-307 (La.App. 5 Cir. 12/13/95), 665 So.2d 1272.

      . Rowley v. Loupe, 96-918 (La.App. 5 Cir. 4/9/97), 694 So.2d 1006.

      . Id. at 1008.

      . J.W. Rombach, Inc. v. Parish of Jefferson, 95-829 (La.App. 5 Cir. 2/14/96), 670 So.2d 1305.


source: Caselaw Access Project

author: SUSAN M. CHEHARDY, Judge Ad Hoc.

license: Public Domain

text:
    Randall J. ANGLIN, David G. Anglin, Beth Anglin Mora, Pamela Anglin Rowell and Andrew Darryl Anglin v. William H. ANGLIN and Louisiana Federal Land Bank Association, FLCA.
    No. 2005-CA-1233.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Phil E. Miley, Miley Law Firm, Baton Rouge, Counsel for Plaintiffs-Appellants, Randall J. Anglin, David G. Anglin, Beth Anglin Mora, Pamela Anglin Rowell and Andrew Darryl Anglin.
    Charles L. Stern, Jr., Rose McCabe Le-Breton, Alan M. Cohen, Steeg and O’Con-nor, L.L.C., New Orleans, Counsel for Defendant-Appellee, Louisiana Land Bank Association, FLCA.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge Ad Hoc.

| ¡.This appeal arises in a dispute among family members over ownership interests in 277 acres of land in Washington Parish. The plaintiffs appeal a summary judgment that dismissed their claims against a bank that holds a mortgage on the property. We affirm.

FACTS

On April 2, 2002 Randall Anglin, David G. Anglin, Beth Anglin Mora, Pamela Ang-lin Rowell, and Andrew Darryl Anglin filed suit against William H. Anglin and the Louisiana Federal Land Bank Association, FLCA (“LFLBA”). The plaintiffs sought to annul acts of donation by which they had transferred their interests in the Washington Parish property to then-brother, William Anglin. In addition, they sought a declaration that William Anglin’s mortgage of the property in favor LFLBA does not encumber their interests. Finally, they sought an order directing William Anglin to convey to the plaintiffs an undivided one-seventh (1/7) interest each in the property.

According to the petition, the property originally belonged to Baty Anglin and his wife, Maggie Anglin. Baty Anglin and Maggie Anglin had four children; after Baty Anglin’s death, their children were recognized in a judgment of possession as co-owners of an undivided one-half interest in the property and ^Maggie Anglin was recognized as co-owner of the other undivided one-half interest.

Hillard Anglin, a son of Baty Anglin and Maggie Anglin, was father of seven children: the five plaintiffs, William Anglin, and Kenneth R. Anglin (who is not party to this suit). After both Hillard Anglin and Maggie Anglin died, the plaintiffs, William Anglin, and Kenneth Anglin were heirs to their father’s interests in the property. Before opening the judicial successions, the plaintiffs and William Anglin discussed partitioning the property, in which other relatives had co-ownership interests.

According to the petition, William Ang-lin persuaded the plaintiffs to donate then-interests to him in order to conveniently handle judicial partition of the property. The petition alleged that William Anglin promised he would not record the acts of donation and that he would transfer the plaintiffs’ proportionate interests in the property back to them after accomplishing the partition.

The plaintiffs’ donations of their interests to William Anglin took place on March 30, 1999, by two Acts of Donation. One act, which purported to donate the interests of Randy Anglin, David Anglin, Beth Mora, Kenny Anglin, and Pam Anglin Ro-well to William H. Anglin, was recorded in Washington Parish Conveyance Book 515, Page 462. The other act of donation, which purported to donate the interest of Andy Darryl Anglin to William H. Anglin, was recorded in Washington Parish Conveyance Book 515, Page 460. Both Acts of Donation were recorded on February 8, 2001.

By Judgment of Possession signed September 7, 2000, William Anglin, the plaintiffs, and Kenneth Anglin were recognized as heirs and legatees of their ^grandmother, Maggie A. Anglin, and entitled to ownership of an undivided twelve and one-half percent (12}¿%) undivided interest in an undivided one-half (1/2) community interest in the property.

In a Judgment of Possession dated July 16, 2001, the Acts of Donation among the heirs of Hillard Anglin to William H. Ang-lin were recognized by the court and William H. Anglin was determined to be the owner of all the interest of Hillard Anglin in the property, consisting of an undivided thirty-seven and one-half percent (37 &%) interest.

William Anglin then obtained the remaining interests in the property, partly by act of sale from one co-owner and partly by partition proceedings against the other two, in which he was the successful bidder for the property at the judicial auction.

On September 11, 2001, William Anglin mortgaged the property to LFLBA for $400,000.00.

Several months later the plaintiffs filed this suit, seeking to annul their donations on the grounds of incapacity, fraud, lack of consideration, error, and invalidity of form, and to cancel the mortgage insofar as it affects their alleged interests.

Early in the proceedings the trial court granted an exception of no cause of action in favor of LFLBA, which was reversed on appeal, and the matter was remanded for further proceedings. The trial court then denied a motion for summary judgment by William Anglin. After that LFLBA brought its own motion for summary judgment, urging that the claims against it must be dismissed because |r,LFLBA was entitled to rely on the public records in granting the mortgage, and the public records showed that William Anglin was owner of the property.

On June 23, 2004 the trial court signed a judgment granting the motion for summary judgment, dismissing the plaintiffs’ action with prejudice at their cost, solely with respect to LFLBA.

On appeal the plaintiffs assert the trial court committed legal error in granting a summary judgment and holding that in 1999 a person could transfer a specific thing before being placed in possession in succession proceedings.

LAW AND ANALYSIS

Summary judgment is warranted only if there is no genuine issue as to material fact and the mover is entitled to judgment as a matter of law. La.C.C.P. art. 966(C)(1). A fact is material if it potentially insures or precludes recovery, affects a litigant’s ultimate success, or determines the outcome of the legal dispute. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La.7/5/94), 639 So.2d 730, 751.

The Court of Appeal reviews summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. Nevels v. State, 95-100 (La.App. 1 Cir. 11/9/95), 665 So.2d 26.

In this case, the factual disputes do not pertain to liability of LFLBA. The issue is whether LFLBA is entitled to judgment as a matter of law. That is, was LFLBA justified in relying on the document trail, in particular the 1999 acts of donation by the plaintiffs, as establishing a clear chain of title in William Anglin?

“Succession is the transmission of the estate of the deceased to his successors. The successors thus have the right to take possession of the estate of the deceased after complying with applicable provisions of law.” La.C.C. art. 871. “Succession occurs at the death of a person.” La.C.C. art. 934. “Immediately at |fithe death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.” La.C.C. art. 935.

“Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.” La.C.C. art. 938(A).

Neither secret claims or equities nor other matters outside the public records shall be binding on or affect third parties. La.R.S. 9:2721(A).

McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909), established long ago the necessity of relying on the public records rather than on unrecorded instruments or word of mouth when dealing with title to immovable property. The Legislature has even defined the “third parties” protected by the doctrine in LSA-R.S. 9:2722. Those parties include “purchasers, mortgagees, grantees, vendees, or lessees”.

G.I. Joe, Inc. v. Chevron U.S.A., Inc., 561 So.2d 62, 65 (La.1990).

The public records doctrine does not create rights in a positive sense, but rather has the negative effect of denying the effectiveness of certain rights unless they are recorded. Camel v. Waller, 526 So.2d 1086, 1089-1090 (La.1988). Third persons are not allowed to rely on what is contained in the public records but can instead rely on the absence from the public record of those interests that are required to be recorded. Id. at 1090. See also, Succession of Horn, 02-430 (La.App. 5 Cir. 9/30/02), 827 So.2d 1241, 1246.

A purchaser of immovable property need only look to the public records to determine ownership and, if such records show no adverse claims of ownership, the purchaser obtains good title from the record owner notwithstanding the | purchaser’s personal knowledge of title defects outside of the record. Wood v. Morvant, 321 So.2d 914 (La.App. 1 Cir. 1975).

The plaintiffs-appellants contend their acts of donation are null for several reasons, the most relevant to this appeal being their contention that at the time of the donations, which were prior to the opening of judicial succession for either Maggie Anglin or Hillard Anglin, an heir could not transfer his undivided interest in a specific piece of property belonging to a succession.

They rely on Succession of Stoufflet, 95-0116 (La.App. 1 Cir. 11/9/95), 665 So.2d 98, writ denied, 95-2937 (La.2/16/96), 667 So.2d 1052. In Stoufflet, the court held that the sale of an heir’s undivided interest in a specific piece of property belonging to a succession is an absolute nullity. The court followed earlier jurisprudence.

Defendant-appellee LFLBA points out, however, that in 1997 the Legislature enacted Acts 1997, No. 1421, § 1, eff. July 1, 1999, which created La.C.C. art. 938. As originally written, Art. 938 provided in pertinent part, “Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in the estate.” (Emphasis added.) The Legislature later amended Art. 938 by Acts 2001, No. 556, § 1, eff. June 22, 2001, to provide, “Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the | ^estate as well as his interest in the estate as a whole.” Obviously, applying Article 938 would make the plaintiffs’ purported donation of their interests in the property effective.

The plaintiffs assert that Article 938 cannot be applied here, because its effective date in the original legislation was July 1, 1999, and their Acts of Donation were dated March 30, 1999, prior to the effective date of the legislation.

Another part of Acts 2001, No. 556, was § 2, which enacted La.R.S. 9:2503, eff. June 22, 2001. La.R.S. 9:2503 provides:

A. Any alienation, lease, or encumbrance of immovable property made by a successor prior to the date that Civil Code Article 938, as amended and reenacted by Acts 2001, No. 556, becomes effective, that would be valid under the provisions of Civil Code Article 938, is valid.
B. An action to annul an alienation, lease, or encumbrance of immovable property owned by a decedent at his death made by a successor prior to the appointment of a succession representative must be brought within a peremp-tive period of one year from the effective date of this Section.

The plaintiffs contend that, because their suit to annul their acts of donation was brought within one year of June 22, 2001, the effective date of Acts 2001, No. 556, pursuant to La.R.S. 9:2503, the motion for summary judgment should have been denied because the dates on the acts of donation as well as the judgments of possession were sufficient to place a third party on notice of the invalidity of the acts of donation.

We disagree with the plaintiffs’ arguments, however. We are in agreement with LFLBA’s argument that the cases leading to Sticcession of Stoufflet, supra, |9are erroneous in their use of the term “absolute nullity” with regard to transfers of immovable property by heirs lacking a judgment of possession. Instead, we note that the Legislature’s enactment of Article 938 was a codification of the principle that “the ownership of estate property [is] enjoyed by a successor prior to a formal judgment of possession, and affords a basis for his binding acts with respect to his own interest.” Revision Comment (a) to La.C.C. art. 938.

We find the following discussion of these issues by the Second Circuit persuasive. In Anding v. Anding, 37,778, pp. 4-10 (La.App. 2 Cir. 10/29/03), 859 So.2d 901, 903-906, the court considered the validity of a dation en paiement by which four siblings conveyed their interests in the immovable property of their father’s succession to the fifth sibling who was a creditor of the estate. The plaintiffs sought to have the dation declared an absolute nullity:

In this instance, both sides concede there are no material facts in dispute and both sides submit that the legal question, namely, the alleged absolute nullity of the dation, is governed by La. C.C. art. 938. Article 938 was enacted as part of the 1997 Revision of the Louisiana Law of Successions that became effective July 1, 1999. Although this article was not in the Code of 1870, the comments make it clear that the new article is consistent with the principles expressed in Civil Code Articles 2513 and 2650 which deal with warranty in the sale of succession rights. These sales were expressly permitted under former Civil Code article 2449 (1870), now Civil Code article 2448. [Footnote omitted.]

As originally enacted in 1997, and at the time the dation was executed, Article 938 read:

Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in the estate. Upon qualification of a succession representative, the exercise of those rights is subject to administration of the estate.
Defendant argues that the statutory language in Article 938 and the comments to the article support their position that the article authorizes an heir to exercise his |inownership rights with respect to his or her interests in the estate, including entering into the type of transaction and conveyance that occurred in this case dealing with a thing of the estate. In support of this reading of the article, the legislature amended Article 938 by 2001 Act No. 556, clearly authorizing an heir to deal with a “thing” in the estate. The amended version of Article 938 reads:
A. Prior to the qualification of a succession representative, a successor may exercise rights of ownership with respect to his interests in a thing of the estate as well as his interest in the estate as a whole.
B. If a successor exercises his rights of ownership after the qualification of a succession representative, the effect of that exercise is subordinate to the administration of the estate.
Section 3 of 2001 Act No. 556 declared that the amendment was interpretative, meant to clarify the original version, and “shall be applied retroactively.” Thus, if the original enactment of Article 938 was intended to authorize an heir to exercise his rights of ownership with respect to particular things in an estate, then the transaction or compromise that occurred in this case is valid, and we need not reach the question of “retroac-tivity” because there was no substantive change in the meaning of Article 938 by the 2001 amendment.
Plaintiffs contend that when it was enacted, Article 938 simply codified existing jurisprudence holding that the sale by an heir of his or her entire interest in a succession is permitted, but the sale of a particular thing or part of his interest in a succession is an absolute nullity, citing Succession of Stoufflet, supra.
Thus, the dispute over the interpretation of Article 938 is whether the phrase, a “successor may exercise rights of ownership with respect to his interests in the estate,” can be construed to mean his “interest in a particular thing,” or must it mean that a successor may deal only with “his entire interest in the succession” as required by Succession of Stoufflet, supra, and other cases decided prior to the 1997 Revision. The former interpretation is consistent with and clearly authorized by the 2001 amendment to Article 938, while the latter interpretation would represent a codification of prior law. For the following reasons, we conclude that the phrase above means a successor may exercise rights of ownership with respect to his interest in a particular thing.
In Although the 1997 Revision Comments do not contain the familiar Reporter’s expression that the revised article “does not change the law” or “changes the law,” as is customary when such is the case, the 1997 Revision comments state that the article recognizes “the ownership of estate property enjoyed by a successor prior to a formal judgment of possession, and affords a basis for his binding acts with respect to his own interests.” La.C.C. art. 938, Comment (a). Comment (a) further states that “[a] person dealing with a successor may acquire such title or interest as the successor has; in particular, the rights of creditors may supersede that of a purchaser from the successor if timely asserted.” Finally, although Comment (b) states that “this revision” of the succession articles “preserves the important functional distinction that has been made in prior law with reference to acts prior to and acts subsequent to qualification of a succession representative,” it neither states nor implies that the new article codified existing jurisprudence or the rule of Succession of Stoufflet, supra.
We further note that the article itself refers the successor’s interests in the estate, using the plural, rather than the singular, implying that the successor may deal with his various interests in the succession, rather than be limited to dealing only with his entire interest in the succession. Moreover, the legislature’s act amending Article 938 clearly expressed how it intended the 1997 version of Article 938 to be construed. No doubt it wanted to loosen those restrictions against heirs dealing with their succession interests imposed by some prior jurisprudence.
According to La.C.C. art. 935, “[immediately at the death of the decedent, universal successors acquire ownership of the estate and particular successors acquire ownership of the things bequeathed to them.” Comment (b) to this article states that while the estate is under administration, the universal successors may not exercise the rights of the deceased, such as the right to alienate or encumber the property of the deceased, without first terminating the administration. A successor may, however, alienate or encumber his own interest in the estate even while the estate is under administration.
In this instance, four of the legatees gave his or her undivided 1/6 interest in the immovable property of the estate in exchange for remission of the succession debt attributable to their respective shares. We hold that this 1 ^transaction, subject to the administration of the sue-cession, is permitted under Article 938, as originally enacted.

We find this a convincing analysis of the status of the law, and that it was reasonable for a third-party such as LFLBA to believe that the enactment of La.C.C. art. 938 and its subsequent amendment justified its reliance on the public record as establishing William Anglin’s ownership of the property and to support imposing a mortgage against the property in this case.

For the foregoing reasons, the judgment in favor of defendant Louisiana Federal Land Bank Association, FLCA is affirmed. The costs of this appeal are assessed against the plaintiffs-appellants.

AFFIRMED.

      . In addition to the seven children of Hillard Anglin, the other co-owners were Sally Anglin Kemp, Patricia Anglin Renfro, and Anne M. Smith.

      . In the Matter of the Succession [of] Maggie A. Anglin, No. 44172, Nineteenth Judicial District Court, Parish of East Baton Rouge.

      . Succession of Hillard Anglin, No. 12035, Twenty-Second Judicial District Court, Parish of Washington.

      . Anglin v. Anglin, 2003-0485 (La.App. 1 Cir. 12/31/03), 864 So.2d 904 (not designated for publication).

      . Subsection A was repealed after the events at issue here, by Acts 2005, No. 169, § 8, eft. July 1, 2006.

      . "The law of Louisiana is well settled that the sale of an heir’s undivided interest in a particular piece of property belonging to a succession is an absolute nullity, although the sale of his entire interest in the succession, subject to the charges with which his interest is burdened, can legally be accomplished.” Succession of Griffin v. Davidson, 125 So.2d 30, 32 (La.App. 2 Cir.1960). See also, Houma Mortgage & Loan, Inc. v. Stoufflet, 602 So.2d 1147, 1149 (La.App. 1 Cir. 1992), and cases cited therein: "Under the law of Louisiana, ... only the heir’s share or interest in the succession, inclusive of all its rights, obligations and charges, can be seized and sold, and not the undivided interest an heir may have in a specific piece of the property of the succession.”

      . “Acts 2001, No. 556, § 1 designated the existing article as par. A and rewrote the same; and added par. B, providing for the subordination of the successor's rights to the administration of the estate.” Historical and Statutory Notes following La.C.C. art. 938. In addition, Section 3 of Acts 2001, No. 556 provides: "The provisions of this Act are remedial and interpretative and shall be applied retroactively.”


text:
    Neil SHIREY, Individually and on Behalf of his Minor Children, Bridgette Shirey, Christopher Shirey, Kristen Shirey, and Trade Shirey v. Travis D. BARTON, Amaree H. Barton, and USAA Casualty Insurance Company.
    No. 2005-CA-1192.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      William H. “Wick” Cooper, III, Attorney at Law, Baton Rouge, Counsel for Plaintiff/Appellee.
    Jeff W. Watson, Attorney at Law, Baton Rouge, Counsel for Defendant/Appellant.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKS HOMBERG WICKER.
   FREDERICKS HOMBERG WICKER, Judge Sd Hoc.

| ^Defendant Progressive Security Insurance Company (“Progressive”) appeals the summary judgment granted in favor of plaintiffs, Neil and Tracie Shirey.

On September 24, 2003, Neil Shirey was involved in a motorcycle accident, from which he suffered bodily injuries. Thereafter, Neil Shirey and his wife Tracie Shi-rey, individually and on behalf of their minor children (“Plaintiffs”), filed suit against the other driver and his liability insurer. Subsequently, Plaintiffs amended their petition and named Progressive as Neil Shirey’s alleged UM carrier. In its answer Progressive concedes that it issued a liability insurance policy on Neil Shirey’s 1997 Yamaha VMAX motorcycle. However, Progressive asserts that Plaintiffs validly rejected UM coverage on the policy. On October 28, 2004, Plaintiffs filed a Motion for Summary Judgment on the validity of the UM rejection form. Progressive filed an opposition asserting again that Plaintiffs | ¿rejected UM coverage. After a hearing on the motion, the trial court granted summary judgment in favor of Plaintiffs, finding that the UM rejection form was invalid; the trial court designated the judgment as a final judgment.

The record reflects that Neil and Tracie Shirey went to Tharpe Insurance Agency to obtain liability insurance on three separate vehicles, a 1991 Mazda MPV, a 1999 Dodge Intrepid, and a 1997 Yamaha VMAX motorcycle. The agency issued two separate policies, one covering the two automobiles and the other covering the motorcycle. Neil Shirey is the named insured on the automobile policy and Tracie Shirey is listed as an insured driver. Tracie Shirey validly rejected UM coverage on the policy covering the two automobiles; this fact is not in dispute. On the motorcycle policy, Neil Shirey is the named insured and there are no additional insured drivers. Neil Shirey completed and signed the policy application form covering the motorcycle. However, Plaintiffs assert that the UM rejection form on the motorcycle policy is invalid because Neil Shirey, the named insured, did not select rejection of UM coverage.

Tharpe Insurance Agency provided the UM rejection form in dispute. The form listed 5 options: (1) UM coverage with the full policy limits, (2) UM coverage with certain limits lower than policy limits, (3) Economic-Only UM coverage with the full policy limits, (4) Economic-Only UM coverage with certain limits lower than policy limits, or (5) rejection of UM coverage.

In the form at issue, Neil Shirey printed his name and provided his signature at the bottom of the form. However, the initials “TS” are placed next to option number 5, rejecting UM coverage. In their depositions, Tracie Shirey denied placing the initials on the form and Neil Shirey stated the initials were not present |4at the time he signed the form. Neil Shirey stated he thought he was accepting UM coverage simply by signing the form. It is not alleged that Neil Shirey placed the initials “TS” in the blank rejecting UM coverage.

In her deposition Sadie Tharpe, the insurance agent, stated that the initials selecting the rejection of UM coverage belonged to Tracie Shirey. She stated that Tracie and Neil Shirey came in to her office to complete some paperwork for the automobile and motorcycle policies. She further stated that Tracie Shirey began initialing all of the paperwork and thereafter Sadie Tharpe took the policy application and the UM rejection form for the motorcycle policy and gave it to Neil Shi-rey, the only insured, to complete.

The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of actions. La. C.C.P. art. 966(A)(2). Appellate review of a summary judgment is on a de novo basis. Summary judgment is appropriate only if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show there is no genuine issue of material fact and the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B); Richardson v. Lott, 03-0189 (La.App. 1 Cir. 11/7/03), 868 So.2d 64, 69. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be properly resolved within the framework of a motion for summary judgment. Id.

The validity of a form rejecting UM coverage is determined by the law in effect at the time the form was executed. Dyess v. American National Property and Casualty Company, 04-1971 (La.App. 1 Cir. 6/25/04), 886 So.2d 448, 451; Reno v. Travelers Home and Marine Ins. Co., 02-1714 (La.App. 1 Cir. 11/7/2003), 867 So.2d 751. The form in dispute was executed on August 1, 2003. At that time, Louisiana Revised Statutes 22:1406(D) provided in pertinent part:

IfiD. The following provisions shall govern the issuance of uninsured motorist coverage in this state:
(l)(a)(i) No automobile liability insurance covering liability arising out of the ownership, maintenance, or use of any motor vehicle shall be delivered or issued for delivery in this state... unless coverage is provided therein or supplemental thereto, in not less than the limits of bodily injury liability provided by the policy, under provisions filed with and approved by the commissioner of insurance, for the protection of persons insured thereunder who are legally entitled to recover nonpunitive damages from owners or operators of uninsured or underinsured motor vehicles because of bodily injury, sickness, or disease, including death resulting therefrom; however, the coverage required under this Subsection is not applicable when any insured named in the policy either rejects coverage, selects lower limits, or selects economic-only coverage, in the manner provided in Item D(l)(a)(ii) of this Subsection...
(ii)... such rejection, selection of lower limits, or selection of economic-only coverage shall be made only on a form prescribed by the commissioner of insurance. The prescribed form shall be provided by the insurer and signed by the named insured or his legal representative ... A properly completed and signed form creates a rebuttable presumption that the insured knowingly rejected coverage, selected a lower limit, or selected economic-only coverage...
(emphasis added)

The mandatory UM coverage provisions of La. R.S. 22:1406(D) embody strong public policy. Dyess, 886 So.2d at 453. The purpose of UM coverage is to provide full recovery for victims of an automobile accident who suffer damages caused by a tort-feasor who is not adequately covered by liability insurance. Id. However, pursuant to statutory guidelines, such coverage may be specifically rejected. Id. The provisions of La. R.S. 22:1406(D) are to be liberally construed in favor of coverage. Id.

Therefore, insurers in Louisiana are required to include UM coverage unless it is specifically rejected by the insured. It is the rejection of the UM coverage, not the acceptance, that must be an affirmative act of the insured or his legal representative. If the rejection of UM coverage is ambiguous, it is ineffective, regardless of the parties intent. Richardson, 868 So.2d at 71. If the rejection is | ¿unambiguous, but not in proper form, it is also ineffective. Therefore, the rejection of UM coverage must be clear and meet the formal requirements of law to be valid. Id; Dardar v. Prudential Prop. & Cas. Ins. Co., 98-1363 (La.App. 1 Cir. 6/25/99), 739 So.2d 330, 333, writ denied, 99-2196 (La.11/12/99), 750 So.2d 195.

When interpreting an insurance contract, the court must attempt to discern the common intent of the insured and insurer. Analysis should begin with a review of the words in the contract and the contract must be enforced as written when the words are clear and explicit and lead to no absurd consequences. La. C.C. art. 2046; Travelers Home and Marine Ins. Co., 867 So.2d at 753; Dyess, 886 So.2d at 451.

17The form at issue directs the insured or his legal representative to make a selection regarding UM coverage by “initialing] only one option.” Immediately above the signature line there is language that reads, “The choice I made by my initials on this form will apply to all persons under this policy...” Therefore, based on the clear and explicit language of the contract, we find that proper execution of the UM rejection form in accordance with La. R.S. 22:1406(D) requires that the signatory must also make the selection rejecting UM coverage by marking his initials next to the appropriate option. Applying the legal principles set forth above, we find the intent of the contract is that the same person who signs the contract must initial the option regarding UM coverage because the signature binds the signatory to the terms of the contract, in this case, the rejection of UM coverage. Because we reach this conclusion, whether Tracie Shirey or someone else placed the initials “TS” in the blank rejecting UM coverage is immaterial.

Accordingly, we find the UM rejection form in this case invalid; the trial court did not err in granting Plaintiffs’ motion for summary judgment. All costs of this appeal are assessed to Progressive.

AFFIRMED.

      . The form is the prescribed form provided by the Commissioner of insurance, pursuant to La. R.S.22:1406(D). The Commissioner promulgated the UM rejection form on April 28, 1998, in La. Bulletin LIRC 98-01.

      . Pursuant to Acts 2003, No. 456, § 3, Louisiana Revised Statute 22:1406(D) was amended and redesignated as La. R.S. 22:680. The amendments do not pertain to this appeal.


text:
    Donna Roberts BARTON v. Eric C. BARTON.
    No. 2005-CA-1190.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Denise Nelson Akers, Akers & Wisbar, L.L.C., Baton Rouge, Counsel for Defendant-Appellant, Eric C. Barton.
    Panel composed of Ad Hoc Judges JAMES L. CANNELLA, SUSAN M. CHEHARDY, and FREDERICKA HOMBERG WICKER.
   SUSAN M. CHEHARDY, Judge Ad Hoc.

|2This is an appeal of a child support ruling, in which the district court increased the amount payable by a father for support of two children from $400.00 per month to $1,009.00 per month. The obli-gor appeals. We vacate the judgment and remand for an evidentiary hearing.

Donna Roberts Barton and Eric C. Barton were divorced on September 30, 1996. The divorce decree adopted the provisions of a prior stipulated judgment, under which the parties agreed to joint custody of the minor children, with Donna Barton designated the primary custodial parent, and with Eric Barton to pay $400.00 per month child support to Donna Barton, as well as one-half of all medical and dental expenses for the children that are not covered by insurance.

In July 1999, Eric Barton filed a petition to modify child support and Donna Barton filed a petition to increase child support and to make past-due child support execu-tory. The cross-petitions resulted in a judgment on September 7, 1999, which maintained the child support at $400.00 per month, but ordered Eric Barton to pay Donna Barton the sum of $6,066.00 as child support in arrears, which was made executory.

On October 6, 2003, Donna Barton filed a rule for an increase in child support. Donna Barton alleged that since the support amount was set she had 13experienced a tremendous increase in expenses for the children and, on information and belief, that the defendant had incurred a tremendous increase in income. She sought to have the child support payments increased to a sum commensurate with the child support guidelines.

In a judgment dated January 6, 2005, the district court increased child support to $1,009.00 per month effective August 1, 2004. In the judgment, the court stated that the increase was based on incomes of $5,642.00 per month for Donna Barton and $5,597.00 per month for Eric Barton. The judgment also made the following recitation:

The court further acknowledges receipt of evidence of the following:
1. That the cost of living in the Virgin Islands, where the father lives, is 33% higher than the cost of living in the average United States city and that the Baton Rouge area is only 66% of the average cost of living for a United States city.
2. That the father spends $1,775.00 each year flying the girls to see him;
3. That the father has another child living with him of his present marriage;
4. That the father claims his current income represents extraordinary overtime;
5. That, based on Eric Barton’s income of $70,072.00 in 2002 and $43,000.00 in 2003, he could have been paying much more than the $400.00 per month current child support and the court is not inclined to deviate from the guidelines pursuant to the arguments made by counsel for Eric Barton as noted above.

The transcript of the hearing contains neither testimony nor admission of evidence into the record. The sum and substance of the transcript is as follows:

THE COURT:
Donna Barton versus Eric Barton.
MR. LIEUX:
Present, Your Honor. We’ll need a status on that.
I ¿MB. AKERS:
Present, Your Honor, for Eric Barton.
[PASSED TEMPORARILY]
THE COURT:
Donna Barton versus Eric Barton.
THE CLERK:
That was a court form.
THE COURT:
Oh, that’s a court form too. All right. [THIS MATTER WAS THUS CONCLUDED]

On appeal, Eric Barton asserts the trial court erred as follows: (1) in setting child support without consideration of the different cost of living for the father, who lives in the Virgin Islands; (2) in setting child support without consideration of the high transportation costs the father incurs in transporting his daughters from Gonzales, Louisiana to the Virgin Islands; (3) in setting child support without considering the fact that the father had another child living in his household; and (4) in using, as the basis of its refusal to deviate from the guidelines for the grounds listed above, the fact that the father’s income had been substantially higher in 2002 and the mother could have requested an increase in child support in 2002 to get more child support, but had not.

Mr. Barton contends the trial court erred in its “mechanical application” of the child support guidelines because the reasons for deviation from the guidelines existed even during the prior two years, the income for which was cited by the trial judge. Further, he contends, the reasons to deviate were good, substantial, and reasonable, and the court’s failure to deviate is an abuse of discretion.

Generally, an award of child support is entitled to great weight and will not be disturbed on appeal absent an abuse of discretion. D’Aquilla v. D’Aquilla, 03-2212, p. 6 (La.App. 1 Cir. 4/2/04), 879 So.2d 145, 149, writ denied, 04-1083 (La. |6/25/04),5 876 So.2d 838. However, an award of child support may be modified if the circumstances of the child or either parent materially change. La.C.C. art. 142.

An award for support shall not be reduced or increased unless the party seeking the reduction or increase shows a material change in circumstances of one of the parties between the time of the previous award and the time of the motion for modification of the award. La.R.S. 9:311(A).

The party seeking modification of a child support award bears the burden of proving that a change in circumstance has occurred. Once the moving party proves a change in circumstance, a presumption exists that the support obligation must be modified. The burden then shifts to the other party to disprove the change or otherwise overcome the presumption.

Folse v. Folse, 2001-0946, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 923, 925.

There is a rebuttable presumption that the amounts in La.R.S. 9:315.14, the child support guidelines, are proper. La. R.S. 9:315.1(A); Templeton v. Templeton, 00-0536, pp. 4-5 (La.App. 1 Cir. 12/22/00), 774 So.2d 1257, 1260. However, the court may deviate from the guidelines “if their application would not be in the best interest of the child or would be inequitable to the parties.” La.R.S. 9:315.1(B). If the trial court deviates, it must “give specific oral or written reasons for the deviation, including a finding as to the amount of support that would have been required under a mechanical application of the guidelines and the particular facts and circumstances that warranted a deviation from the guidelines.” Walden v. Walden, 2000-2911, p. 8 (La.App. 1 Cir. 8/14/02), 835 So.2d 513, 520.

Here, the transcript shows that no evidence was placed on the record that would establish the facts on which the trial court’s ruling was based. An appellate | r,court cannot review evidence that is not in the record on appeal and cannot receive new evidence. Guedry v. Fromenthal, 633 So.2d 287, 289 (La.App. 1 Cir.1993); Willis v. Letulle, 597 So.2d 456, 464 (La.App. 1 Cir.1992).

Thus, it is impossible for this Court to make a clear and just determination of the proper child support from this record. We are unable to review the judgment.

Pursuant to our authority under La. C.C.P. art. 2164, therefore, the appropriate procedure in this case is to vacate the judgment and remand to the trial court for the purpose of an evidentiary hearing to provide a basis for a determination of the motion for modification of child support. See Fancett v. Fancett, 590 So.2d 1250, 1253 (La.App. 1 Cir.1991).

For the foregoing reasons, we vacate the judgment and remand the matter to the district court for an evidentiary hearing. The parties are to pay their own costs for this appeal.

VACATED AND REMANDED.

      . The record contains a worksheet that lists gross incomes, etc., for each party and the combined amounts of their incomes and extraordinary expenses. The worksheet also has a handwritten entry under the "Decision” section that reflects the ruling later entered by the court. However, the worksheet was neither signed by the trial judge, nor entered into evidence at the hearing.


author: GAIDRY, J.

text:
    LOUISIANA STATE EMPLOYEES’ RETIREMENT SYSTEM (LASERS) v. Jane McWILLIAMS, Joelle McWilliams, and Dianne (McWilliams) Sanders.
    No. 2005 CA 0938.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Aug. 1, 2006.

      Lila Tritico Hogan, Hammond, Counsel for Substitute Defendant/Appellant Richard Sanders, Substitute Party for Dianne (McWilliams) Sanders.
    Jonathan R. Schmidt, Hammond, Counsel for Defendant/Appellee Jane McWil-liams.
    Joelle McWilliams, Baton Rouge, Defendant/Appellee In Proper Person.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

[¡¡The issue in this case is the distinction between survivor and retirement benefits paid under the Louisiana State Employees’ Retirement System. For the following reasons, we reverse.

FACTS AND PROCEDURAL HISTORY

Joel and Dianne McWilliams were married on April 26, 1969. On January 10, 1972, Joel began employment with the State of Louisiana. The McWilliams’s community property regime terminated on June 15, 1987, and the parties were divorced on October 12, 1987. A December 15, 1989 judgment of the 21st Judicial District Court recognized Dianne’s interest in Joel’s Louisiana State Employees’ Retirement System (LASERS) plan, and stated that her “interest ... shall be calculated as follows when and if he retires, terminates employment, or dies.” On September 15, 1987, Joel completed a LASERS “Change of Beneficiary” form, naming his two daughters, Jodee and Joelle, as beneficiaries. Both Joel and Dianne eventually remarried. Joel completed another “Change of Beneficiary” form on June 18, 1997, naming his new wife, Jane McWil-liams, as his beneficiary, and his daughters Jodee and Joelle as contingent beneficiaries. On August 25, 1998, a second judgment was rendered by the 21st Judicial District Court which amended the 1989 judgment to provide that the portion of Joel’s retirement/pension attributable to creditable service during the community was 217 months, 20 days. Joel died on May 24, 2003. At the time of his death, Joel was still employed by the State. After his death, Dianne, Jane, and Joelle each filed a claim for benefits with LASERS, and LASERS invoked a concursus proceeding.

IsAfter taking the matter under advisement, Judge Wilson Fields ruled that the Sims formula did not apply to the survivors’ benefits and that survivors’ benefits were owed only to the surviving spouse and minor child under La. R.S. 11:471. Judge Fields stated that he would not consider the judgments of the 21st Judicial District Court recognizing Dianne’s interest in Joel’s LASERS plan if and when he “retires, terminates employment, or dies” in ruling on Dianne’s interest in the survivors’ benefits. Judge Fields stated that “the court feels that it is not the proper court to interpret ... the 21st J.D.C. ruling. ... Either the 21st J.D.C. needs to revisit their ruling or take it up on appeal if one side or the other does not feel that that was an appropriate ruling.”

Dianne appealed this judgment, alleging that the trial court erred in distinguishing survivors’ benefits from retirement benefits, refusing to give effect to the judgments of the 21st Judicial District Court recognizing Dianne’s interest in Joel’s plan when he dies, and in the alternative, refusing to award Dianne one-half of the community contributions made during her marriage to Joel. Jane McWilliams answered Dianne’s appeal, seeking damages for a frivolous appeal.

DISCUSSION

Categorization of Survivor’s Benefits

The primary issue in this case is whether the survivors’ benefits to be paid by LASERS are an asset of the community that existed between Joel and Dianne McWilliams, such that Dianne would be entitled to a Sims portion of those benefits. Unless the legislature specifically provides otherwise, any benefit payable by a retirement plan, to the extent attributable |4to the community, is an asset of the community. Vicknair v. Firefighters’ Pension and Relief Fund of New Orleans, 05-0467 (La.App. 4 Cir. 6/15/05), 907 So.2d 787, 789. Since the survivors’ benefits at issue in this case are payable by a retirement plan and would therefore be considered an asset of the community, we must determine if the legislature has provided to the contrary.

Survivors’ benefits payable under LASERS are governed by La. R.S. 11:471. The statute lists three categories of individuals who may qualify to receive survivors’ benefits: surviving minor children, surviving handicapped children, and surviving spouses. The statute then sets forth a method of calculating survivors’ benefits for each category of recipient. Individuals who qualify as survivors under the statute must furnish proof yearly or at such other times as the board of trustees may deem necessary that they are still legally entitled to survivors’ benefits. La. R.S. 11:474.

A LASERS member is guaranteed, at a minimum, the return of his accumulated contributions, either in the form of a monthly benefit or a lump-sum refund. If a member dies with no qualified surviving spouse, surviving minor children, or surviving handicapped children, his accumulated contributions are refunded in a lump sum payment to his named beneficiary or his estate. La. R.S. 11:476. If he leaves qualified survivors, but survivors’ benefits cease (for example, because the survivors are no longer qualified under the statute) before the total monthly benefits paid equal the total accumulated contributions of the member, LASERS will refund to the member’s named beneficiaries or the beneficiaries’ estates a lump sum equal to the difference between the total survivors’ benefits paid and the total accumulated contributions. La. R.S. 11:475.

[ sGiven that the legislature has specified which categories of people may be qualified to receive survivors’ benefits — surviving spouses and children of members — if they meet certain requirements, and did not include former spouses in community, it is clear that the legislature did not intend for survivors’ benefits to be paid to former spouses in the same manner as retirement benefits. This court concluded in Bonfanti v. Percy, 95-1189 (La.App. 1 Cir. 4/6/96), 672 So.2d 415, 419, that survivors’ benefits were intended to ensure that family members were not left destitute upon the death of a member, and the legislature clearly did not envision that these benefits would be given to any individual other than those specifically designated by the statute, noting that the act creating the provisions governing the qualifications for receipt of survivors’ benefits stated that its purpose was providing benefits to the surviving spouse or children of a deceased member of the Retirement System under certain conditions. A judgment or private agreement cannot change these designations by the legislature.

While survivors’ benefits are only payable under certain circumstances, the return of an amount equal to the total accumulated contributions is guaranteed. Thus, a former spouse in community is entitled to recoup her share of the accumulated contributions attributable to the community. If Joel McWilliams had been unmarried at the time of his death, or married for less than a year, with no minor or handicapped children, no benefits would have been payable under the plan at all. His accumulated contributions would simply have been refunded to his named beneficiary or to his estate, subject to a claim by Dianne for her share of the community contributions. While Joel did leave survivors who are qualified for survivors’ benefits, Dianne is nevertheless entitled to recoup her share of the accumulated contributions attributable to the community.

|fiThe parties stipulated at trial that the accumulated contributions attributable to the community between Joel and Dianne is $25,963.62, making Dianne’s share $12,981.81. She is entitled to recoup this amount from LASERS.

Frivolous Appeal

Jane McWilliams alleges that Dianne’s appeal is frivolous and asks this court to award damages for frivolous appeal, as authorized by Louisiana Code of Civil Procedure article 2164. “An appeal will not be deemed frivolous unless it is taken solely for delay, fails to raise a serious legal question, or counsel does not seriously believe in the proposition of law he is advocating.” LaPoint v. Beaird Industries, Inc., 34,620 (La.App. 2 Cir. 5/9/01), 786 So.2d 301, 305. While we did not find that Dianne was entitled to a Sims portion of the survivors’ benefits paid by LASERS, her appeal did have merit and was not frivolous.

CONCLUSION

For the above reasons, the judgment of the trial court is reversed, and LASERS is ordered to reimburse to Richard Sanders the amount of $12,981.81. Costs of this appeal are to be divided equally among Jane McWilliams, Joelle McWilliams, and Richard Sanders.

REVERSED AND RENDERED.

      . The court based this calculation on the period of creditable service during the community being April 26, 1969 through June 15, 1987. However, this was an error. April 26, 1969 was the date of the parties' marriage; Joel didn't begin his State employment until January 10, 1972. The correct period would have been January 10, 1972 through June 15, 1987.

      . Dianne died while this appeal was pending, and a motion was filed in this court to substitute her husband, Richard Sanders, as a party. This motion was referred to the merits, and we grant the motion allowing Mr. Sanders's substitution as a defendant-appellant.

      . Louisiana Revised Statutes 11:471(C) provides that for survivors' benefits to be payable to a surviving spouse, the surviving spouse must have been married to the deceased member for at least one year prior to his death.


text:
    Cynthia BRIDGES, Secretary of the Department of Revenue, State of Louisiana v. LYONDELL CHEMICAL COMPANY (Successor in Interest Through Merger to Lyondell Chemical Worldwide, Inc., in Turn Successor to ARCO Chemical Company).
    No. 2005 CA 1535.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.
    Rehearing Denied Aug. 1, 2006.
    Carter, C.J., and Downing, J., concurred.

      John J. Weiler, John J. Steger, IV, New Orleans, Counsel for Plaintiff/Appellee Cynthia Bridges, Secretary of the Department of Revenue, State of Louisiana.
    Robert W. Nuzum, New Orleans, Counsel for Defendant/Appellant Lyondell Chemical Company.
    Before: CARTER, C.J., DOWNING, and GAIDRY, JJ.
   GAIDRY, J.

12A corporate taxpayer appeals a judgment awarding attorney fees to the Louisiana Department of Revenue pursuant to La. R.S. 47:1512. We reverse.

FACTS AND PROCEDURAL HISTORY

Lyondell Chemical Company (Lyondell) is a foreign corporation authorized to do business in Louisiana. Lyondell and its predecessor corporation, ARCO Chemical Company, were the subjects of three separate audits by the Louisiana Department of Revenue (the Department). The second audit formed the basis of the present action, instituted by the Department’s secretary (the secretary) in her capacity as collector of revenue. In its petition filed on December 15, 2000, the Department alleged that the second audit revealed that Lyondell owed additional corporate income tax of $113,677.00 for the years 1991 and 1992, together with accrued statutory interest of $102,049.01. Further, it was alleged that Lyondell owed additional corporate franchise taxes totaling $72,910.00 for the years 1992, 1993, 1994, and 1995, plus accrued statutory interest of $60,128.36. Finally, the Department alleged that it had exercised its authority under La. R.S. 47:1512 to retain private counsel to assist it in the collection of the taxes due, that such counsel had instituted the litigation on its behalf, and that its counsel was entitled to attorney fees authorized by the statute.

Lyondell answered the petition, denying liability for the additional taxes and interest claimed. The parties thereupon engaged in extensive correspondence and settlement discussions, which eventually culminated in a global settlement conference on April 16, 2002, arranged by the | ¡¡Department's counsel at Lyondell’s request. The express purpose of the conference was to negotiate settlement of the Department’s claims in all three audits. As the result of the conference, the parties reached a tentative settlement regarding the corporate income and franchise taxes due in June 2002. However, they were unable to come to terms regarding the issue of attorney fees claimed by reason of the Department’s retention of private counsel under the authority of La. R.S. 47:1512.

Lyondell had also been audited by the Internal Revenue Service (IRS) regarding its federal income tax returns for the years 1989 through 1993. Lyondell also contested its 1987 and 1988 federal income tax liability, and in December 2002 reached a settlement with the IRS. Because Louisiana corporate income tax is based upon federal taxable income, that settlement required recalculation of Lyondell’s Louisiana corporate tax liability. With regard to the taxes at issue in this litigation, it was ultimately determined that Lyondell had a final Louisiana corporate income tax liability of $43,364.00 for 1991 and a franchise tax liability of $76,378.00 for the years 1992 through 1995, excluding accrued interest. On October 10, 2003, the parties entered into an in globo settlement of the tax disputes in all three audits. The result was a net refund of $152,094.26 paid by the Department, by reason of Lyon-dell’s overpayment of corporate and franchise taxes in some of the eleven tax years at issue, combined with interest thereon, being offset against the taxes and interest otherwise payable.

| ¿After the trial court denied Lyondell’s motion to dismiss the remaining attorney fees claim on the grounds of abandonment, the Department filed a contradictory motion for an award of attorney fees. Lyon-dell opposed the motion, on the grounds that pursuant to the in globo settlement, it received a net refund of taxes and interest of $69,723.09 attributable to the corporate income and franchise tax years at issue in this litigation.

The Department’s motion for attorney fees was heard on February 18, 2005. The trial court ruled in favor of the Department, awarding it $30,317.00 in attorney fees. Its judgment was signed on March 7, 2005. Lyondell appeals.

ASSIGNMENTS OF ERROR

For ease of analysis, we summarize and condense Lyondell’s assignments of error as follows:

(1) The trial court erred in concluding that there were taxes and interest due by Lyondell for purposes of La. R.S. 47:1512, when it received a net refund for overpayment of taxes;

(2) Based on the foregoing, the trial court erred in awarding an additional charge for attorney fees pursuant to La. R.S. 47:1512; and

(3) The court’s award of $30,317.00 in attorney fees was unreasonable and excessive according to the standards set forth in Rule 1.5 of the Rules of Professional Conduct of the Louisiana State Bar Association.

\ .ANALYSIS

The statute at issue, La. R.S. 47:1512, provides:

The collector [secretary] is authorized to employ private counsel to assist in the collection of any taxes, penalties or interest due under this Sub-title, or to represent him in any proceeding under this Sub-title. If any taxes, penalties or interest due under this title are referred to an attorney at law for collection, an additional charge for attorney fees, in the amount of ten per centum (10%) of the taxes, penalties and interest due, shall be paid by the tax debtor.

As a general rule, attorney fees are not due and owing a successful litigant unless specifically provided for by contract or by statute. Frank L. Beier Radio, Inc. v. Black Gold Marine, Inc., 449 So.2d 1014, 1015 (La.1984). Our courts have construed such statutes strictly because the award of attorney fees is exceptional and penal in nature. Id., 449 So.2d at 1015-16. This court has characterized the additional charge for attorney fees of La. R.S. 47:1512 as a penalty. McNamara v. Stauffer Chemical Company, 506 So.2d 1252, 1259 (La.App. 1st Cir.), writs denied, 512 So.2d 454, 455 (La.1987).

The jurisprudence provides only limited guidance as to the appropriate method of determining the amount of attorney fees due under the factual scenario at issue. In general, the statute has been interpreted as mandating “that the losing taxpayer pay, as an additional charge, attorney fees of ten percent (10%) of the delinquent principal, interest, and penalties determined to be due, when the taxing authority employs private counsel in its collection.” City of Baton Rouge v. Stauffer Chemical Company, 500 So.2d 397, 399-400 (La. 1987). (Emphasis supplied.) See also United Companies Printing Company v. City of Baton Rouge, 569 So.2d 186, 189 (La.App. 1st Cir.1990), writ denied, 572 So.2d 73 (La.1991).

[ fiMore recently, we have described the operative effect of the statute, from the Department’s standpoint, as follows:

Under La. R.S. 47:1512, the Secretary of the Department is authorized to employ private counsel to assist in the collection of taxes. If any taxes, penalties, or interest due under state taxation laws are referred to an attorney for collection, and the Department obtains a favorable judgment, the taxpayer is liable for the amounts due, plus 10% of that amount as attorney fees. (Emphasis supplied; footnote omitted.)

J. Ray McDermott, Inc. v. Morrison, 96-2685, pp. 2-3 (La.App. 1st Cir.11/7/97), 702 So.2d 364, 366, units denied, 97-3061, 709 So.2d 754, 97-3063 (La.2/13/98), 709 So.2d 754.

In State v. BP Exploration & Oil, Inc., 96-0716, p. 15 (La.1/14/97), 686 So.2d 823, 831, the supreme court addressed the statute’s effect in only one sentence: “Because [the taxpayer] does not owe the additional taxes ... that the Department sought in this lawsuit, [the taxpayer] does not owe attorney fees under La. R.S. 47:1512.” There, it was determined that the corporate taxpayer owed no portion of any of the taxes sought by the Department.

Here, the trial court’s award of $30,317.00 represented ten percent (10%) of $303,177.98, representing the total taxes and accrued interest thereon through the date of the in globo settlement, but without consideration of any offsets for Lyondell’s overpayment of taxes. Thus, the award was based upon Lyondell’s gross tax and interest liability for those taxes addressed in the second audit. The Department contends that the trial court was correct in doing so, as such figure represents “the taxes, penalties and interest due” for purposes of La. R.S. 47:1512. It emphasizes that each tax year is a separate tax period for which a separate corresponding liability exists, which is unaffected by the inclusion of multiple years for audit, investigation, or litigation convenience. We of course accept the latter |7proposition as correct, but do not consider it determinative of the present issue.

The Department makes a strong point that the attorney fees authorized by La. R.S. 47:1512 are not limited to suits for collection of taxes instituted by the Department, but also include other tax proceedings under Title 47’s Subtitle II, “Provisions Relating to Taxes Collected and Administered by the Collector of Revenue,” including suits by taxpayers to recover taxes paid under protest under La. R.S. 47:1576. See South Central Bell Telephone Company v. Traigle, 367 So.2d 1143, 1150-51 (La.1978). Thus, the Department urges, it is immaterial whether the dispute involved in the second audit was resolved by compromise rather than judgment. Further, and more importantly, Lyondell was in fact found to owe additional tax liability, even though that liability was simply offset against tax overpayments and related refunds due. The offset procedure, which served to reduce larger refunds otherwise due, represents “the functional equivalent of collection and payment,” according to the Department. While we acknowledge the technical validity of the Department’s reasoning, we cannot agree that it applies for purpose of application of the penal statute at issue.

If the taxes and interest factored into the in globo settlement were in fact “due” for purposes of La. R.S. 47:1512, then one might legitimately ask why the Department did not insist upon offsetting the statutory attorney fee against Lyondell’s overpayments in the same fashion as the taxes and interest, in order to calculate the final refund due Lyondell. The evidence shows that the parties mutually agreed to defer resolution of the attorney fee dispute so as not to impede the progress of the primary dispute. As compromise is favored in the law, we attach no significance to the | «Department's decision in that regard. But this leads us to consider the language of the various statutes authorizing the discretionary offsets which may be used to determine a taxpayer’s ultimate liability to the state. None of these statutes specifically refers to the statutory attorney fee as being collectible through an offset, nor is there any separate provision expressly authorizing such recourse by the Department. This legislative silence suggests an intent that the attorney fee should be based upon the final amount due in dispute or litigation, after appropriate application of any discretionary offsets or other credits due the taxpayer. See Morrison, supra.

We further note that the Department has an express statutory duty to determine the correct amount of tax due from the taxpayer. La. R.S. 47:1541. This duty certainly is in place before the Department may exercise its authority to retain private counsel under La. R.S. 47:1512, and continues thereafter until final resolution of the dispute.

The litigation at issue was instituted under the authority of La. R.S. 47:1561, which expressly authorizes the Department, in its discretion, to utilize the alternate remedy of filing a suit under ordinary procedure to enforce the collection of taxes claimed to be due. The Department opted to disincorporate, without limitation, all claims addressed in the second audit in this litigation. Insofar as those aggregate claims for both income and franchise taxes are concerned, the Department was not successful in resolving either the litigation at issue or the involved audit in its favor. To the contrary, the Department was ultimately determined to owe an obligation to refund Lyondell for its net overpayment. Under these circumstances, Lyondell cannot reasonably be characterized as a “losing taxpayer” within the meaning of the jurisprudence interpreting La. R.S. 47:1512. Likewise, the Department cannot be said to have obtained a favorable judgment, or its equivalent by virtue of compromise, when it owed a net liability to the taxpayer for an overpayment refund attributable to the years at issue.

We thus construe the term “due,” as descriptive of the principal amount or basis upon which the attorney fee percentage is calculated, to refer to the net amount of “taxes, penalties and interest” ultimately determined to be due in this multi-year action. No taxes, penalties, and interest were ultimately found to be due in this cause, so there is no basis upon which to impose the additional penalty representing attorney fees. In so holding, we do not mean to imply that the Department’s private counsel |indid not render substantial and valuable services contributing to the amicable resolution of the complex disputes between the parties. To the contrary, the evidence does seem to support the amount of the award made by the trial court, but it is unnecessary for us to consider Lyondell’s assignment of error on that point. Our conclusion simply accords with the strict construction required of penal statutes which serve to shift attorney fees from prevailing parties to them opponents, and the ultimate result is a common risk inherent in the nature of a contingent fee agreement.

The trial court erred as a matter of law, and we accordingly reverse its judgment. In doing so, however, we emphasize that the result herein is dictated by the particular factual circumstances presented, and that our legal conclusion should likewise be limited to this factual context.

DECREE

The judgment of the trial court in favor of the plaintiff-appellee, Cynthia Bridges, secretary of the Louisiana Department of Revenue, and against the defendant-appellant, Lyondell Chemical Company, is reversed. All costs of this appeal, in the amount of $782.68, are assessed to Cynthia Bridges, secretary of the Louisiana Department of Revenue.

REVERSED.

DOWNING and CARTER, JJ., concur.

      . See La. R.S. 36:454, 47:1501(A), 47:1502, and 47:1561.

      . The first audit was the subject of a separate civil action instituted in Orleans Parish. It was dismissed on the grounds that the Department's claim asserted therein had been settled and that the remaining claim for attorney fees was abandoned. The trial court’s judgment to that effect was recently affirmed. Slaughter v. ARCO Chemical Company, 05-0657 (La.App. 4th Cir.4/26/06), 931 So.2d 387. The third audit was not litigated.

      . See, e.g., La. R.S. 47:287.701(L).

      . This refund figure is supported by the documentary evidence and is undisputed by the Department in this appeal. The remainder of the total refund of $152,094.26 included $43,261.73 attributable to the first audit and $39,109.44 attributable to the third audit.

      .The trial court’s judgment refers to the prevailing plaintiff as "the Department [of Revenue],” rather than its secretary. For convenience, we will refer to the plaintiff as "the Department” in this opinion.

      . See, e.g., La. R.S. 47:287.657, 47:287.662, 47:617, and 47:1622.

      . The interpretation urged by the Department may be compared to a hypothetical situation where an attorney is retained on a one-third contingent fee basis pursuant to La. R.S. 37:218 to represent an injured party in a personal injury case. The case proceeds to trial, and the jury finds that the plaintiff has sustained $100,000.00 in total damages, but was 40% at fault. Should the attorney's fee be based upon the total damages sustained, a fee of $33,333.33, or the net recovery of $60,000.00, a fee of $20,000.00? The total amount of damages proven to have been sustained was arguably attributable to the attorney’s professional services and skill, but the net recovery is of course the true value of the plaintiff's cause of action, the "subject matter” of the suit or claim. This is admittedly a loose and imperfect analogy, but valid nevertheless to the present dispute. Compensation or "setoff” has long been recognized in our civil law as a mode of partial extinguishment of one person’s obligation to another through offsetting an opposing obligation owed by the latter to the former. See La. C.C. arts. 1893, et seq. To the extent that compensation or "setoff” constitutes an affirmative defense, it resembles contributory negligence in its effect upon a plaintiff's ultimate recovery. See La. C.C.P. art. 1005 and Richard v. Vidrine Automotive Services, Inc., 98-1020, p. 9 (La.App. 1st Cir.4/1/99), 729 So.2d 1174, 1179.

      . See City of New Orleans' Department of Finance v. Touro Infirmary, 04-0835, p. 23 (La. App. 4th Cir.4/27/05), 905 So.2d 314, 328, writ denied, 05-1251 (La.2/17/06), 924 So.2d 997, holding that the penalty authorized by La. R.S. 47:1602 for failure to remit the total amount of tax due in connection with a filed return “is to be computed on the amount that is, in fact, owed less the amount that was remitted for the period covered by the return." (Emphasis supplied.) See also Ibrahim v. Hawkins, 02-0350, pp. 13-14 (La.App. 1st Cir.2/14/03), 845 So.2d 471, 483. There, we held that the ten percent (10%) statutory penalty owed by an underinsured motorists insurer on “the amount found to be due” under La. R.S. 22:658 must be based upon the amount that is ultimately found to be owed by that insurer to the insured, taking into account any prior payments by the insurer, rather than the total amount of damages in excess of the liability insurer's limits. The similarity between the phrase “found to be due” in La. R.S. 22:658 and the phrase "determined to be due” used by the supreme court in City of Baton Rouge v. Stauffer Chemical Company, supra, suggests a similar result, at least in the present context. Finally, we note that in the prayer of its petition, the Department prayed for statutory attorney fees “in the amount of ten per centum (10%) of the taxes, penalties and interest collected pursuant to this lawsuit." (Emphasis supplied.) While this choice of language is certainly not binding in effect, it does reinforce the reasonableness of our conclusion herein.


author: PETTIGREW, J.

text:
    James “Jim” LAMZ v. John B. WELLS.
    No. 2005 CA 1497.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 2006.

      Tom W. Thornhill, Chadwick W. Coll-ings, Slidell, for Plaintiff-Appellant James “Jim” Lamz.
    John B. Wells, Pro Se.
    Before: KUHN, GUIDRY, and PETTIGREW, JJ.
   PETTIGREW, J.

lain this case, plaintiff, James “Jim” Lamz, appeals from a judgment of the trial court granting the motion to strike filed by defendant, John B. Wells. For the reasons that follow, we affirm the judgment below.

FACTS AND PROCEDURAL HISTORY

According to the record, Mr. Lamz and Mr. Wells were both judicial candidates for Slidell City Court in 2004. The election was scheduled for November 2, 2004. On October 29, 2004, Mr. Lamz filed a petition for injunctive relief alleging that Mr. Wells had violated the provisions of the Louisiana Election Code, La. R.S. 18:1463, by “causing to be distributed, transmitted and published many oral, visual and written statements” containing numerous false allegations about Mr. Lamz. The matter was scheduled for hearing on November 3, 2004, at which time the trial court concluded that the petition for injunctive relief was moot. Mr. Lamz was subsequently allowed to file a supplemental and amending petition asserting a defamation cause of action against Mr. Wells. In response thereto, Mr. Wells filed a special motion to strike pursuant to La.Code Civ. P. art. 971, arguing that Mr. Lamz had “maliciously sued [him] in a brazen attempt to curtail protected political speech in direct violation of the First Amendment to the Constitution of the United States.”

After a number of delays, Mr. Wells’ special motion to strike was scheduled for hearing on March 24, 2005, along with several other related matters, including exceptions raising the objection of prematurity and improper use of summary proceedings filed by Mr. Lamz. The trial court denied the exception raising the objection of no cause of action. Argument from both sides regarding the motion to strike was then heard, after which the trial court granted the motion to strike finding that Mr. Lamz had not met his |3burden of proof on the motion. The parties also presented argument concerning Mr. Wells’ claim for attorney fees. This issue was “left open” by the trial court, and counsel for both sides were allowed additional time to brief the matter. The trial court signed a judgment in accordance with these findings on March 31, 2005, dismissing the claims against Mr. Wells with prejudice. Mr. Lamz filed a motion for new trial, which motion was denied by the trial court on April 4, 2005. In a subsequent judgment dated May 10, 2005, the trial court denied Mr. Wells’ claim for attorney fees, but ordered Mr. Lamz to pay all costs allowable by law that were incurred by Mr. Wells.

Mr. Lamz appealed the court’s March 31, 2005 judgment, arguing that the trial court committed an error of law in granting Mr. Wells’ motion to strike. Mr. Wells answered the appeal, assigning error to the trial court’s failure to sanction Mr. Lamz pursuant to La.Code Civ. P. art. 863 and failure to award attorney fees pursuant to La.Code Civ. P. art. 971. Mr. Wells also requested attorney fees for the time he spent responding to the appeal by Mr. Lamz.

ARTICLE 971 MOTION TO STRIKE

The granting of a special motion to strike pursuant to Article 971 presents a question of law. Appellate review regarding questions of law is simply a review of whether the trial court was legally correct or legally incorrect. Dixon v. First Premium Ins. Group, 2005-0988, p. 5 (La. App. 1 Cir. 3/29/06), 934 So.2d 134. On legal issues, the appellate court gives no special weight to the findings of the trial court, but exercises its constitutional duty to review questions of law and renders judgment on the record. Clements v. Folse ex rel. Succession of Clements, 2001-1970, p. 5 4(La.App. 1 Cir. 8/14/02), 830 So.2d 307, 312, writ denied, 2002-2328 (La.11/15/02), 829 So.2d 437.

On appeal, Mr. Lamz contends the trial court’s judgment granting the motion to strike was contrary to both the law and the evidence and must be reversed. Mr. Wells asserts that his special motion to strike was properly granted because the case involved protected free speech with a connection to a public issue. We agree.

The special motion to strike, governed by Article 971, provides in pertinent part, as follows:

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.
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.

Article 971 was enacted by Acts 1999, No. 734, § 1. Section 2 of Acts 1999, No. 734 provides as follows:

| ñThe 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.

The intent of Article 971 is to encourage continued participation in matters of public significance and to prevent this participation from being chilled through an abuse of judicial process. Stern v. Doe, 2001-0914, p. 4 (La.App. 4 Cir. 12/27/01), 806 So.2d 98, 101. Article 971 was enacted by the legislature as a procedural device to be used early in legal proceedings to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. Aymond v. Dupree, 2005-1248, p. 7 (La.App. 3 Cir. 4/12/06), 928 So.2d 721. Accordingly, Article 971 provides that a cause of action against a person arising from any act 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. This special motion to strike is a “specialized defense motion akin to a motion for summary judgment.” See Editor’s Note to La.Code Civ. P. art. 971, citing Lee v. Pennington, 2002-0381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, writ denied, 2002-2790 (La.1/24/03), 836 So.2d 52.

Thus, we first consider Mr. Wells’ initial burden as the moving party, i.e., demonstrating that the subject matter of the suit against him stems from an action relating to free speech and in relation to a public issue. To that end, Mr. Wells submitted his affidavit in support of the special motion to strike, wherein he stated that he “did not act with knowledge of or a reckless disregard of the truth.” Mr. Wells further noted that Mr. Lamz was a public figure at the time of the complained of publications and has not and cannot show actual malice. Notwithstanding this affidavit by Mr. Wells, reference to the pleadings in the record demonstrates that the causes of faction arise from acts in furtherance of Mr. Wells’ right of free speech and in connection with a public issue. La. Code Civ. P. art. 971(A)(2).

In ruling on the special motion to strike, the trial court noted as follows:

[T]he framers of our Constitution placed a great importance on freedom of speech, and when you look at various legislation that’s been passed over the years and cases that have been ruled on over the years, the courts have continued to support that and apparently our legislature has sought to support that also by ... passing into law ... Article 971, the special motion to strike, which the court finds to be applicable in this case since it deals with issues of free speech under the United States Constitution and Louisiana Constitution in connection with public issues. What can be a more public issue than an election? This special motion to strike is in its own way a nuclear option that goes right in and blows up the whole case if it is in fact granted; you know, because if I strike these pleadings there’s not a whole lot left to this case.

Applying the language of Article 971 broadly, as directed by the legislature, we find no error in the trial court’s determination that Mr. Wells’ conduct of distributing the campaign literature at issue constituted an “[a]ct in furtherance of [Mr. Wells’] right of ... free speech under the United States or Louisiana Constitution in connection with a public issue.” La.Code Civ. P. art. 971(F)(1). Because Mr. Wells’ campaign literature falls within the category of speech addressed in Article 971, the suit filed by Mr. Lamz was subject to the special motion to strike, unless the trial court determined that Mr. Lamz had established a probability of success on his defamation claim.

In opposition to the Article 971 motion, Mr. Lamz argued that Mr. Wells made false statements against him that were not the protected free speech contemplated in Article 971. However, we note that falsity is an element of a defamation claim to be proved by Mr. Lamz as plaintiff after the burden shifts to him. Because Mr. Wells met his burden of proof on the motion to strike, the burden of proof shifted to Mr. Lamz to demonstrate the probability of his success in his defamation claim against Mr. Wells. After considering the evidence in the record, the trial court concluded that Mr. Lamz failed to meet “the burden of proof establishing a probability of success on that claim.” We find no error in this conclusion.

It is well settled in Louisiana law that a cause of action for defamation arises out of a violation of La. Civ.Code art. 2315. Ruffin v. Wal-Mart, 2001-0613, p. 2 (La. App.7 1 Cir.5/10/02), 818 So.2d 965, 967, writ denied, 2002-1636 (La.9/30/02), 825 So.2d 1200. The following elements are essential to prevail on a claim of defamation: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury. Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La.1980).

A defamatory communication or defamatory words are those which harm the reputation of another so as to lower him in the estimation of the community or to deter others from associating with him. Connor v. Scroggs, 35,521-522, 36,109-110, p. 10 (La.App. 2 Cir. 6/12/02), 821 So.2d 542, 550. Whether a particular statement is objectively capable of having a defamatory meaning is a legal issue to be decided by the court, considering the statement as a whole, the context in which it was made, and the effect it is reasonably intended to produce in the mind of the average listener. Bell v. Rogers, 29,757, p. 5 (La.App. 2 Cir. 8/20/97), 698 So.2d 749, 754. Insofar as a plaintiff is a public official, the Louisiana Supreme Court has observed that, “[a] public official plaintiff cannot recover for a defamatory statement relating to his or her official conduct, even if false, unless the public official proves actual malice by clear and convincing evidence.” Davis v. Borskey, 94-2399, p. 10-11 (La.9/5/95), 660 So.2d 17, 23.

Based on our review of the evidence in this case, and considering the applicable law with regard to a cause of action in defamation, we agree with the trial court’s conclusion that Mr. Lamz has failed to establish a probability of success in his claims against Mr. Wells. According to the record, Mr. Lamz and Mr. Wells were embroiled in a very heated and controversial judicial campaign, which resulted in the election (albeit by a slight margin of victory — less than two hundred votes separated the candidates) of Mr. Lamz as Judge of Slidell City Court. Nonetheless, there is nothing in the record to suggest that Mr. Lamz would be able to satisfy the elements of his defamation action | Sagainst Mr. Wells, namely, that the publications were false, that Mr. Wells acted with actual malice, or that Mr. Lamz sustained any injury as a result of the publications at issue. Thus, we find no error in the judgment below and affirm the trial court’s application and granting of the special motion to strike pursuant to Article 971.

ATTORNEY FEES ON APPEAL

The final issue for our review concerns Mr. Wells’ answer to the appeal and prayer for attorney fees for the work on this appeal. Under Louisiana jurisprudence, recovery of attorney fees is not available to one who represents himself because he has incurred no out-of-pocket expenses. See Lambert v. Byron, 94-854 (La.App. 3 Cir. 2/8/95), 650 So.2d 1201, and cases cited therein. As noted by the third circuit in Lambert,

Attorney’s fees are awarded to a successful litigant so that his recovery might not be diminished by the expense of legal representation. To allow an attorney filing suit in proper person to recover attorney’s fees when he has not actually incurred their expense gives him a monetary advantage unavailable to anyone hiring counsel.
[O]ne who has not proven that attorney’s fees have been actually incurred is not to be awarded them.

Lambert, 94-854 at 3-4, 650 So.2d at 1203. Accordingly, because Mr. Wells represents himself on appeal, he has not incurred any attorney fees. Mr. Wells’ request for same is without merit.

CONCLUSION

For the above and foregoing reasons, we affirm the trial court’s judgment granting Mr. Wells’ special motion to strike and dismissing this action with prejudice. All costs associated with this appeal are assessed against Mr. Lamz.

AFFIRMED.

      . According to the minutes from the March 24, 2005 hearing, counsel for Mr. Lamz advised the trial court that the exception raising the objection of prematurity was moot. There is also a notation in the minutes that the motion to strike filed on behalf of Mr. Lamz was moot. However, this court has been unable to find any other reference to such a motion in the record.

      . In a second assignment of error, Mr. Lamz challenges the constitutionality of Article 971. Mr. Lamz has not properly raised a constitutional challenge to Article 971. He did not specifically plead unconstitutionality, nor did he notice or request service on the attorney general. Louisiana jurisprudence holds that "a statute must first be questioned in the trial court, not the appellate courts, and the unconstitutionality of a statute must be specially pleaded and the grounds for the claim particularized.” Vallo v. Gayle Oil Co., Inc., 94-1238, p. 8 (La. 11/30/94), 646 So.2d 859, 864-65 (footnote omitted). Consequently, we do not address the constitutionality of Article 971 herein.

      . We note that Mr. Wells’ claim for attorney fees pursuant to Article 971 was not addressed in the March 31, 2005 judgment and is not properly considered in this appeal.

      . As a candidate for judicial office, Mr. Lamz qualifies as a public official. See State v. Defley, 395 So.2d 759, 761 (La. 1981) (citing Monitor Patriot Co. v. Roy, 401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971)).