author: JOHNSON, Justice.

text:
    ASTORIA ENTERTAINMENT, INC. v. Edward J. DeBARTOLO, Jr., DeBartolo Entertainment Louisiana Gaming, Inc., Hollywood Casino Corporation, Robert Guidry, Treasure Chest Casino, L.L.C., et al.
    No. 2008-C-1690.
    Supreme Court of Louisiana.
    May 22, 2009.
    Rehearing Denied June 26, 3009.

      Henry L. Klein, New Orleans, for applicant.
    Montgomery, Barnett, Brown, Read, Hammond & Mintz, Stephen Paul Schott, New Orleans, Capitelli & Wicker, Ralph Capitelli, New Orleans, The Law Offices of Arthur A. Lemann III & Associate, Arthur A. Lemann, III, Arthur Anthony Lemann, IV, New Orleans, Habans & Carriere, Robert Nagle Habans, Jr., Slidell, King, Krebs & Jurgens, Frederick William Bradley, New Orleans, Neal & Harwell, James G. Thomas, Aubrey B. Harwell, Jr., for respondent.
   JOHNSON, Justice.

liWe granted this writ application to determine whether the court of appeal correctly affirmed the trial court’s grant of the defendants’ Motions for Summary Judgment, finding that the defendants were immune from any liability by application of the Noerr-Pennington doctrine. Because we find that Noerr-Pennington does not apply to grant civil immunity for the defendants’ illegal actions, we reverse the decision of the court of appeal.

FACTS AND PROCEDURAL HISTORY

On December 1, 1998, Plaintiff, Astoria Entertainment, Inc. (“Astoria”), filed suit against defendants Edward DeBartolo, Jr. (“DeBartolo”) and Robert Guidry (“Gui-dry”), as well as numerous other defendants, essentially alleging that it was not awarded a license to operate a riverboat casino due to the defendants’ corrupt ^practices which permeated the riverboat gaming licensing process in Louisiana from 1991 to 1998. Astoria initially filed suit in federal court on November 12,1998. The original Complaint was premised solely on the defendants’ alleged violations of the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C.1961 et seq., and sought civil damages under that statute. The suit named numerous defendants, including DeBartolo and Guidry. The federal case was stayed on April 11, 1999, pending the prosecution and conclusion of the criminal proceeding in the Middle District of Louisiana captioned United States v. Edwin Edwards, et al., Cr. No. 98-165B. The stay was eventually lifted on February 23, 2001, after the criminal convictions were returned and sentences imposed. On March 6, 2001, Astoria filed an amended complaint in federal court, adding allegations of Sherman and Clayton Antitrust Act violations, as well as several causes of action under Louisiana state law. As in this case, the gist of Astoria’s complaint was that it would have received a license to operate a riverboat casino in the absence of corruption. Defendants filed a Motion to Dismiss, which was granted by the federal court. The court found that Astoria’s antitrust action was prescribed, and additionally found that the Noerr-Pennington doctrine applied to shield the defendants from federal antitrust liability. The court dismissed Astoria’s federal Sherman antitrust and RICO claims with prejudice. Holding that the dismissal of Astoria’s federal antitrust claims deprived the federal court of jurisdiction, the court declined to rule on Astoria’s state claims, and dismissed them without prejudice, thereby preserving Astoria’s right to pursue them in state court. Astoria Entm’t, Inc. v. Edwards, 159 F.Supp.2d 303, 320-321 (E.D.La.2001).

In 1991, the Louisiana Riverboat Economic Development and Gaming Control Act (“the Act”) was enacted, which authorized the licensing and operation of fifteen | ^riverboat casinos. The Act created two separate bodies within the Department of Public Safety and Corrections and vested each with separate duties and responsibilities in furtherance of the Act’s purposes. See: State Through Dept. of Public Safety and Corrections v. Louisiana Riverboat Gaming Commission and Horseshoe En-tertamment, 94-1872 (La.5/22/95), 655 So.2d 292. The Gaming Enforcement Division was vested with regulatory and enforcement powers, and the Riverboat Gaming Commission (“the Commission”) was a rule and policy making body appointed by the Governor and confirmed by the Louisiana Senate. Id. at 296. Under its rule-making powers, the Commission required any prospective riverboat operator to apply to the Commission for a Certificate of Preliminary Approval (“CPA”). See former La. Admin. Code 42:XIII.303.

In short, at issue in this litigation are two riverboat licenses — one that was awarded to Guidry in 1993, and one that was awarded to DeBartolo in 1997. According to Astoria’s Petitions, it originally pursued a license to operate a riverboat casino in Kenner, but abandoned that plan when it learned that Guidry “had been guaranteed” a Kenner license because of his “close relationship” with former Governor Edwin Edwards. Astoria contends that it then sought to pursue a Gretna license, and filed an application for a CPA to operate a riverboat in Gretna. Astoria alleges that despite promises of support from some Commission members, it failed |4to obtain a CPA as a result of corruption. The 1997 license (“15th license”) was eventually awarded to DeBartolo after a license previously awarded to another company was abandoned. Astoria alleges that De-Bartolo paid Edwards $400,000.00 to prevent problems with his license application. Astoria asserts that DeBartolo’s actions made it impossible for Astoria to have a fair and impartial consideration of its application for the 15th license, but Astoria makes no specific allegation that it actually applied for that particular license.

The crux of Astoria’s argument is that DeBartolo and Guidry corrupted the licensing process by making illegal payments to former Governor Edwin Edwards in order to obtain Edwards’ assistance in obtaining casino licenses for their respective companies; and, but for their corrupt actions, Astoria would have received a license.

The defendants filed various exceptions, including exceptions of no cause of action, which were denied by the trial court on February 13, 2004. On September 7, 2004, the court of appeal granted the defendants’ writ applications, reversing the trial court’s denial of their exceptions of no cause of action. The court of appeal stated:

[T]he Noerr-Pennington doctrine is applicable to all of the claims set forth by Astoria against the defendant-relators in this case, specifically the claims for tortious interference (with economic and/or prospective business advantage), the claims for violations of the Louisiana Unfair Trade Practices and Consumer Protection Law and any other such unfair trade practices claims (such as under California law), the claims for conspiracy, and the claims for unjust enrichment. Therefore, we reverse the judgment of the trial court....

Astoria Entertainment, Inc. v. Edward J. DeBartolo, Jr., et al, 2004-C-0415 c/w Jjj2004-C-0417, 2004-C-0430, 2004-C-0431 (La.App. 4th Cir.9/7/04), unpub.

Astoria then filed a writ application in this Court, which we granted with an order reversing the decision of the court of appeal. Specifically, this Court stated:

The Noerr-Pennington doctrine provides an affirmative defense. Bayou Fleet v. Alexander, 234 F.3d 852 (5th Cir.2000), and Acoustic Systems, Inc. v. Wenger Corp., 207 F.3d 287 (5th Cir. 2000). Affirmative defenses must be raised in the answer. La.Code Civ. P. art. 1003 and art. 1005. The court of appeal was premature in reaching this issue in the context of an exception of no cause of action. Accordingly, the judgment of the court of appeal is vacated and the judgment of the district court denying the exception of no cause of action is reinstated.

Astoria Entertainment, Inc. v. Debartolo, Jr., et al., 2004-2472 (La.1/7/05), 891 So.2d 687.

Following remand to the trial court, DeBartolo filed an answer asserting defenses, including Noerr-Pennington. Gui-dry amended his answer to assert a Noerr-Pennington defense. Defendants subsequently moved for summary judgment asserting that they were entitled to immunity pursuant to the Noerr-Pen-nington doctrine. The trial court granted the defendants’ motions for summary judgment, finding that it was bound by the court of appeal’s previous ruling on the applicability of Noerr-Pennington. Astoria appealed. While the court of appeal agreed with Astoria.that its previous vacated decision was not law of the case and had no force or effect, the court of appeal again found, as a matter of law, that the Noerr-Pennington doctrine was dispositive. Astoria filed the instant writ application in this Court, which we granted. Astoria Entertainment, Inc. v. Debartolo, et al, 2008-1690 (La.10/31/08), 993 So.2d 221.

DISCUSSION

Origins of the Noerr-Pennington Doctrine

The Noerr-Pennington doctrine is derived from two United States Supreme | fiCourt decisions: Eastern R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127, 81 S.Ct. 523, 5 L.Ed.2d 464 (1961) and United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). This immunity doctrine essentially provides that private parties who petition the government for governmental action favorable to them are not in violation of the antitrust laws, even though their petitions are motivated by anticompetitive intent. 5 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law: Substance and Procedure, § 20.54(e) (4th ed.2008). The Court derived its decision in Noerr from the premise set forth in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), that the States have freedom to engage in anticompetitive regulation. Parker provides immunity to governments and government actors from anti-trust claims, finding that the Sherman Act was intended to restrain only private action, but did not apply to anticompetitive restraints imposed by the State “as an act of government.” Parker, 317 U.S. at 352, 63 S.Ct. 307. However, Parker did not immunize the private parties who urge government or government actors to engage in anti-competitive regulation from antitrust liability. Reasoning that if state action, even if anticompetitive, is immune from antitrust liability, then petitioning the state for that action should not be unlawful, the Court developed a corollary to the Parker doctrine in Noerr. Noerr, 365 U.S. at 137, 81 S.Ct. 523.

In Noerr, the Court held that railroads, which had embarked on an advertising campaign designed to convince the legislature to pass laws which were detrimental to the trucking industry, were not subject to antitrust liability for those actions, even though their ultimate goal was to drive trucks out of business and limit the competition. In so holding, the Court concluded that “the Sherman Act did not reach political activity, nor was the anticompeti-tive purpose of the railroads in initiating the advertising campaign, nor their deception in conducting that campaign, relevant to |7the antitrust analysis.” Noerr, 365 U.S. at 138-141, 81 S.Ct. 523. The Court held that “the Sherman Act does not prohibit two or more persons from associating together in an attempt to persuade the legislature or executive to take particular action with respect to a law that would produce a restraint or monopoly.” Id. at 136, 81 S.Ct. 523.

The Court explained that to hold otherwise “would substantially impair the power of government to take actions through its-legislature and executive that operate to restrain trade.” Id. at 137, 81 S.Ct. 523. The Court stated that:

[t]o hold that the government retains the power to act in [a] representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act.

Id. at 137, 81 S.Ct. 523.

The Court further reasoned that to construe the Sherman Act differently would raise important constitutional questions. The First Amendment protects the right of the people “to petition the Government for a redress of grievances.” U.S. Const, amend. I. The Court explained:

The right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms. Indeed, such an imputation would be particularly unjustified in this case in view of all the countervailing considerations enumerated above. For these reasons, we think it clear that the Sherman Act does not apply to the activities of the railroads at least insofar as those activities comprised mere solicitation of governmental action with respect to the passage and enforcement of laws.

Id. at 138, 81 S.Ct. 523.

Thus, it seems clear that the Noerr-Pennington doctrine stems not only from the right to petition governments granted by the First Amendment, but is also based on the recognition that antitrust laws, “tailored as they are for the business world, are not at all appropriate for application in the political arena.” Noerr, 365 U.S. at 141, 81 S.Ct. 523.

|RFour years after Noerr, the Supreme Court issued its opinion in United Mine Workers v. Pennington, 381 U.S. 657, 85 S.Ct. 1585, 14 L.Ed.2d 626 (1965). In Pennington, the Court reaffirmed the principles in Noerr, and held that “[jjoint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.” Pennington, 381 U.S. at 670, 85 S.Ct. 1585. The Court stated that Noerr shields from the Sherman Act a concerted effort to influence public officials “regardless of intent or purpose.” Id. In 1972, the Court further extended the Noerr-Pennington doctrine to petitions before courts and administrative agencies. California Motor Transport Co., v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972).

The Parties’ Contentions

Astoria

Astoria argues that Noen-Pennington is not a single broad brush doctrine which immunizes any activity simply because a politician is involved. Astoria asserts that the application of the doctrine is fact-intensive, and should not have been applied by the lower courts absent discovery by the parties, and fact development regarding the alleged petitioning process.

On the merits of the application of Noerr-Pennington, Astoria argues that the defendants’ corruption was not part of any legitimate petitioning that would be protected by the Constitution, as the First Amendment was never meant to be a safe harbor for corruption. Astoria argues that the defendants’ corrupt actions should not be given Noerr-Pennington protection.

DeBartolo

DeBartolo argues that Noerr-Penning-ton serves as a complete defense to the allegations in Astoria’s petitions. DeBar-tolo argues that Noerr-Pennington applies broadly to all efforts to influence governmental action, and that the doctrine is not lalimited to “legitimate” petitioning.

DeBartolo also disputes Astoria’s assertion that Noerr-Pennington is a safe harbor for corruption. DeBartolo argues that Noerr-Pennington neither permits nor approves of unlawful activity, and that there are criminal statutes to address the types of misconduct that might be involved in improper relations with governmental officials. Here, DeBartolo and Guidry were punished for their actions.

DeBartolo argues that summary judgment was properly granted. Astoria has never articulated what additional facts should have been developed in this case that could change the trial court’s legal analysis. Nor did Astoria request additional time for discovery in opposing the motion for summary judgment.

Guidry

Guidry argues that Noerr-Pennington is broadly applied, and had been used by courts to dismiss a variety of claims, including state law claims. Guidry argues that under Noerr-Pennington, this Court must look at the conduct in question, not the intent or motivation behind the conduct. Guidry argues that his conduct in attempting to influence the Commission through Edwards is exactly what Noerr-Pennington purports to protect.

Guidry argues that the trial court properly granted his motion for summary judgment, as Astoria failed to introduce any evidence to contravene the motion and Astoria did not request additional time for discovery. In addition, Astoria never conducted the court-ordered deposition of Gui-dry. Guidry argues that when the government activity in question is clearly defined, a court can conclude as a matter of law whether Noerr-Pennington is applicable. Courts routinely resolve this legal issue on the pleadings under motions to dismiss pursuant to Federal Rule of Civil Procedure 12, or motions for summary judgment.

| inApplication of Noerr-Pennington

La. C.C.P. art. 966(B) provides that a motion for summary judgment will be granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law.” This article further provides that 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). As an appellate court, we review a judgment granting or denying a motion for summary judgment de novo. Hood v. Cotter, 2008-0215 (La.12/2/08), 5 So.2d 819, 822 (citing Bonin v. Westport Ins. Corp., 05-0886, p. 4 (La.5/17/06), 930 So.2d 906, 910). Thus, we must determine, as the trial court does, whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Id. (citing Smith v. Our Lady of the Lake Hasp., 93-2512 (La.7/5/94), 639 So.2d 730, 750).

Astoria’s allegations against DeBartolo and Guidry are essentially allegations that these defendants sought to influence the administrative decision of the Commission in order to obtain a riverboat casino license. The defendants acted by making illegal and/or improper payments to Edwards so that he would use his political influence to obtain a favorable Commission decision. We must determine whether the defendants’ actions, despite their corrupt and illegal nature, are protected from civil liability by Noerr-Pennington.

This Court has never directly considered the application of Noerr-Pennington in our state courts, but we note that this doctrine has been routinely applied in other state courts, even though it arose in the context of federal antitrust litigation. The rationale is that the Noerr-Pennington doctrine is made applicable in state courts and |nto state law claims through the Fourteenth Amendment. Moreover, Noerr-Pennington is partially rooted in the First Amendment to the United States Constitution, which protects the right of the people to petition the government for a redress of grievances. Similarly, the Louisiana Constitution provides that “[n]o law shall impair the right of any person to assemble peaceably or to petition government for a redress of grievances.” La. Const, art. 1, § 9. And, while the United States Supreme Court has not addressed Noerr-Pennington outside of the context of antitrust litigation, numerous federal and other states’ high courts have, for years, extended this immunity to cases involving other types of claims.

In applying Noerr-Pennington to a tort claim, the United States Fifth Circuit noted that although the Noerr-Pennington doctrine initially arose in the antitrust field, other circuits had expanded the doctrine to claims brought under federal and state laws, including § 1983 and common-law tortious interference with contractual relations claims. Video International Production, Inc. v. Wamer-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir.1988), cert. denied, 491 U.S. 906, 109 S.Ct. 3189, 105 L.Ed.2d 697 (1989) (citing: Evers v. County of Custer, 745 F.2d 1196, 1204 (9th Cir.1984); Gorman Towers, Inc. v. Bogoslavsky, 626 F.2d 607, 614 (8th Cir.1980)). The Fifth Circuit reasoned that the same rationale under antitrust law would apply to tort claims because “there is simply no reason that a common-law tort doctrine can any more permissibly abridge or chill the constitutional right of petition than can a statutory claim such as antitrust.” Video International, 858 F.2d at 1084. See also: Bayou Fleet, Inc. v. Alexander, 284 F.3d 852 (5th Cir.2000); Brownsville Golden Age Nursing Home, Inc. v. Wells, 839 F.2d 155 (3rd Cir.1988) (Noerr-Pennington doctrine protected individuals from tort liability for their actions in petitioning the government to shut down a nursing home that was operating in violation of applicable | ^regulations); Tarpley v. Keistler, 188 F.3d 788 (7th Cir.1999) (Noerr-Penning-ton doctrine applied to protect defendant from a § 1983 action).

In addition to the federal circuits, other states’ high courts have also applied Noerr-Pennington to a variety of claims outside of the antitrust realm. The Mississippi Supreme Court has applied Noerr-Pennington to protect a casino’s efforts to lobby the Mississippi Gaming Commission to deny approval of another casino operator’s proposal to build a new casino. The Court applied Noerr-Pennington in rejecting the plaintiffs state tort claims of restraint of trade, tortious interference and civil conspiracy. Harrah’s Vicksburg Corp. v. Pennebaker, 812 So.2d 163 (Miss. 2002). In Titan America, LLC v. River-ton Investment Corp., 264 Va. 292, 569 S.E.2d 57 (Va.2002), the Virginia Supreme Court found that the Noerr-Pennington doctrine was available to a defendant in causes of action for tortious interference with business expectancy and conspiracy. In Anderson Development Co., L.C. v. Tobias, 116 P.3d 323 (Ut.2005), the Utah Supreme Court ruled that the lower courts had erred in failing to grant the defendants’ motions for summary judgment based on Noerr-Pennington in a claim for intentional interference with prospective economic relations and existing contractual relations. In Gunderson v. University of Alaska, 902 P.2d 323 (Alaska 1995), the Alaska Supreme Court affirmed the grant of defendants’ motion for summary judgment on the basis of Noerr-Pennington in a suit alleging numerous claims, including misrepresentation, tortious interference with contractual relationship, claims under 42 U.S.C.1983, and state antitrust law claims. The Rhode Island Supreme Court has applied Noerr-Pennington to common-law tort claims. Pound Hill Corp., Inc. v. Perl, 668 A.2d 1260 (R.I.1996); Cove Road Development v. Western Cranston Industrial Park Associates, 674 A.2d 1234 (R.I.1996); Hometown Properties, Inc. v. Fleming, 680 A.2d 56 (R.I.1996).

113We agree that there is no reason that the constitutional protection of the right to petition should be less compelling in the context of claims that arise outside of the scope of antitrust laws. However, even accepting that Noerr-Pennington is generally applicable in our state courts, and to state law claims, we must still determine whether the doctrine is applicable based on the specific facts of this case.

The Supreme Court has specifically carved out only one exception to Noerr-Pennington immunity — the “sham” exception. The sham exception applies in cases where a person uses the process of government itself, rather than the outcome of that process, to reduce competition. Rotunda & Nowak, supra § 20.54(e)(ii). This exception was explained in Noerr as “situations in which a publicity campaign, ostensibly directed toward influencing governmental action, is a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor and the application.” Noerr, 365 U.S. at 144, 81 S.Ct. 523. While the sham exception to Noerr-Pennington immunity was initially broadly applied by many lower courts, the Supreme Court has limited its application to activities that are “not genuinely intended to influence government action.” Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492, 507 n. 10, 108 S.Ct. 1931, 100 L.Ed.2d 497 (1988). The Court in Allied Tube criticized the use of sham to cover all activities deemed “unworthy of antitrust immunity.” Id. The Court emphasized that genuine efforts to influence government does not constitute a sham, no matter how improper the methods used. Id. The Supreme Court has explained that to fall under this exception, a defendant’s lobbying activities must be “objectively baseless.” Professional Real Estate Investors, v. Columbia Pictures Indus. Inc., 508 U.S. 49, 60, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993). Lobbying activities are considered “baseless” if a reasonable private citizen could not “realistically expect success on the merits.” Id. at 60, 113 S.Ct. 1920.

|14In this matter, because both Gui-dry and DeBartolo achieved favorable results as a result of their actions, we find that their endeavors were, by definition, not baseless, and thus do not fall under the sham exception. See: Professional Real Estate Investors, 508 U.S. at 61, n. 5, 113 S.Ct. 1920; Bayou Fleet, 234 F.3d at 862.

The United States Supreme Court has neither specifically carved out an exception to Noerr-Pennington for corrupt or illegal actions, nor applied the doctrine to immunize criminal behavior. And, while the Court, in dicta, has discussed Noerr-Pen-nington immunity relative to illegal actions in several cases, we find no guidance in the Court’s statements.

In California Motor Transport, the Court stated in dicta that “[t]here are many other forms of illegal and reprehensible practice which may corrupt the administrative or judicial processes and which may result in antitrust violations. Misrepresentations, condoned in the political arena, are not immunized when used in the adjudicatory process.” California Motor Transport, 404 U.S. at 513, 92 S.Ct. 609.

In Allied Tube, the Court again expressed an opinion, also in dicta, that illegal actions, such as bribery, would not merit Noerr-Pennington protection. The Court stated that “one could imagine situations where the most effective means of influencing government officials is bribery, and we have never suggested that kind of attempt to influence the government merits protection.” Allied Tube, 486 U.S. at 504,108 S.Ct. 1931.

However, the Court expressed a different view in City of Columbia v. Omni Otddoor Advertising, Inc., 499 U.S. 365, 111 S.Ct. 1344, 113 L.Ed.2d 382 (1991). In Omni, the Court refused to recognize a “conspiracy” exception to Noerr-Penning-ton which would apply when government officials conspired with a private party to employ government action as a means of stifling competition. Id, at 382, 111 S.Ct. 1344. The Court reasoned that a conspiracy in 115the antitrust sense usually means nothing more than an agreement to impose the regulation in question, and all successful petitioning encompasses an agreement between the petitioner and the government. Id. at 375, 383, 111 S.Ct. 1344. The Court also reasoned that applying a conspiracy exception would require examining government officials’ subjective motivation in taking certain action, and this sort of inquiry would be impracticable. Id. at 383-384, 111 S.Ct. 1344. In addressing a suggestion that this problem could be avoided by confining the exception to conduct with some element of unlawfulness, the Court noted that it would then “have nothing to do with the policies of the antitrust laws.” Id. at 383, 111 S.Ct. 1344. Specifically, the Court stated:

And if the invalidating “conspiracy” is limited to one that involves some element of unlawfulness (beyond mere anticompetitive motivation), the invalidation would have nothing to do with the policies of the antitrust laws. In Noerr itself, where the private party “deliberately deceived the public and public officials” in its successful lobbying campaign, we said that “deception, reprehensible as it is, can be of no consequence so far as the Sherman Act is concerned.” 365 U.S. at 145, 81 S.Ct. 523.

Id. at 383-384, 111 S.Ct. 1344.

As stated earlier, the Supreme Court has not considered Noerr-Pennington outside of the antitrust field. And, as further explained, the extension of Noerr-Pen-nington beyond antitrust cases by lower courts is based solely on First Amendment considerations. Because the Supreme Court has only considered Noerr-Pen-nington immunity in the context of antitrust suits, the Court’s statements regarding this immunity have necessarily been based on the Court’s interpretation of the antitrust laws. Hence, the dicta in Omni which suggests that the Court may afford Noerr-Pennington protection to illegal actions is not based on First Amendment reasoning, but, rather, is based solely on the Court’s analysis of antitrust laws. Thus, we do not find this language to be persuasive based on the facts of this case.

|1fiIn Cardtoons, L.C. v. Major League Baseball Players, 208 F.3d 885 (10th Cir. 2000), the United States Tenth Circuit explained:

The logical dilemma in applying Noerr-Pennington outside of the antitrust context is that Noerr’s first rationale for immunity — an interpretation of the Sherman Act — is not present. Supreme Court precedent gives us scant guidance in resolving this issue. All of the cases in which the Supreme Court has applied Noerr-Pennington immunity as such have involved antitrust claims.

Cardtoons, 208 F.3d at 889.

Further, that Court explained that while the circuits have extended Noerr-Pen-nington outside of the antitrust context, they have done so solely on the basis of the right to petition, and have eliminated the Sherman Act rationale. Id. at 889.

Because the expansion of Noerr-Pen-nington to our state courts, and to state law claims, is based on the First Amendment, rather than federal antitrust laws, we must necessarily look to the First Amendment to reach our decision.

In McDonald v. Smith, 472 U.S. 479, 105 S.Ct. 2787, 86 L.Ed.2d 384 (1985), the Court considered whether the Petition Clause of the First Amendment provides absolute immunity to a defendant charged with expressing libelous and damaging falsehoods in letters to the President of the United States. The Court noted that:

The First Amendment guarantees “the right of the people ... to petition the Government for a redress of grievances.” The right to petition is cut from the same cloth as the other guarantees of that Amendment, and is an assurance of a particular freedom of expression. In United States v. Cruikshank, 2 Otto 542, 92 U.S. 542, 28 L.Ed. 588 (1876), the Court declared that this right is implicit in “[t]he very idea of government, republican in form.”

McDonald, 472 U.S. at 482, 105 S.Ct. 2787. However, the Court went on to state that “[although the values in the right of petition as an important aspect of self-government are beyond question, it does not follow that the Framers of the First Amendment believed that the Petition Clause provided absolute immunity from damages for libel.” Id. at 483, 105 S.Ct. 2787.

In rejecting the petitioner’s claim of absolute immunity, the Court reasoned that to hold otherwise “would elevate the Petition Clause to special First Amendment status.” Id. at 485, 105 S.Ct. 2787. The Court explained that:

“The Petition Clause, however, was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble. These First Amendment rights are inseparable, and there is no sound basis for granting greater constitutional protection to statements made in a petition to the President than other First Amendment expressions.”

Id.

Whereas the right to petition granted by the First Amendment is not absolute, we find no reason to give the defendants’ illegal actions First Amendment constitutional protection. In our view, while the Supreme Court has chosen to cast a wide net of protection afforded by Noerr-Pennington, this net should not be expanded to protect illegal activity, especially in claims that arise outside of the scope of antitrust laws.

And, although the dicta from Omni may indicate the Court’s reluctance to carve out additional exceptions to Noerr-Pennington, this language is far from a clear mandate that the defendants’ corrupt actions must be afforded civil immunity under the doctrine. Considering the extent of criminality alleged to be involved in this case, we do not believe that the United States Supreme Court would be inclined to find that Noerr-Pennington provides civil immunity to the defendants. We find that the alleged bribery and corruption in this case are not petitioning activities that should be constitutionally protected. To hold otherwise would give Noerr-Penning-ton a |18sweeping effect far beyond the original purpose of the doctrine.

DECREE

For these reasons we find that the court of appeal erred in affirming the trial court’s grant of defendants’ motions for summary judgment. We hereby reverse the decision of the court of appeal, and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

KIMBALL, C.J., and KNOLL and GUIDRY, JJ., concur.

      . DeBartolo's company, DeBartolo Entertainment Louisiana Gaming, Inc., also remains a defendant.

      . Defendants Hollywood Park, Inc., Robert List, Louisiana Gaming Enterprises, Inc., Boomtown, Inc., and Louisiana-I Gaming, L.P., were dismissed without prejudice on March 5, 1999. Defendants Boyd Gaming Corporation, Boyd Louisiana, LLC, Boyd Kenner, Inc., and Treasure Chest Casino, LLC were dismissed with prejudice on October 21, 2003. Defendant, Hollywood Casino Corporation, was dismissed with prejudice on June 18, 2004.

      . This Act was superceded in part in 1996 by the Louisiana Gaming Control Law, La. R.S. 27:1, et seq. The portions of the prior law that were not revoked are found at La. R.S. 27:41 et seq.

      . This structure was revoked by the Louisiana Gaming Control Law, La. R.S. 27:1, et seq. The Gaming Control Law created the Louisiana Gaming Control Board, which inherited the powers of both the Gaming Commission and Enforcement Division. However, the two-body structure was still in place at all relevant times in this case.

      . This rule was apparently struck down in State Through Louisiana Riverboat Gaming Commission v. Louisiana State Police Riverboat Gaming Enforcement Division, 95-2355 (La.App. 1 Cir. 8/21/96), 694 So.2d 316. The court essentially found Commission exceeded its authority by implementing the rule, which gave the Commission licensing power over the intended licensing body, the Louisiana State Police.

      . DeBartolo pled guilty to misprision of a felony in violation of Title 18, United States Code Section 4 on October 6, 1998. Guidry pled guilty to conspiracy in violation of Title 18, U.S.C. § 371 on October 16, 1998. See U.S. v. Edwards, 39 F.Supp.2d 716, 720 n. 7.

      .Specifically, Astoria, by its original and amending petitions, asserted one or more of the following causes of action against the defendants: (1) intentional interference with economic advantage and/or prospective economic advantage; (2) unjust enrichment to the extent that the defendants were unjustly enriched to the detriment and impoverishment of Astoria; (3) civil conspiracy to corrupt the licensing process; (4) punitive damages under California law for fraud; (5) treble damages under the California business code for unfair trade practices; and (6) violations of the Louisiana Unfair Trade Practices and Consumer Protection Law, La. R.S. 51:1401 et seq.

      . Alternatively, Guidry argued that he was entitled to summary judgment because Astoria’s claims were barred by prescription and res judicata.

      . The Sherman Anti-Trust Act ("Sherman Act”) is codified at 15 U.S.C. § 1, eí seq. and was enacted to protect trade and commerce against unlawful restraints and monopolies.

      . This discussion is dicta, as there was no finding of illegal activity in Omni.

      . The Court cited to We, Inc. v. City of Philadelphia, 174 F.3d 322, 326-27 (3d Cir. 1999)("This court, along with other courts, has by analogy extended the Noerr-Penning-ton doctrine to offer protection to citizens’ petitioning activities in contexts outside the antitrust area as well.... [T]he purpose of Noerr-Pennington as applied in areas outside the antitrust field is the protection of the right to petition.”); and Video Int'l Production, Inc. v. Wamer-Amex Cable Communications, Inc., 858 F.2d 1075, 1084 (5th Cir.1988) ("[a]l-though the Noerr-Pennington doctrine initially arose in the antitrust field, other circuits have expanded it to protect first amendment petitioning of the government from claims brought under federal and state laws.... ”).


source: Caselaw Access Project

author:
PER CURIAM.
     KNOLL, Justice, WEIMER, J.,

license: Public Domain

text:
    STATE ex rel. Michael WEARY v. STATE of Louisiana.
    No. 2008-KP-2673.
    Supreme Court of Louisiana.
    June 26, 2009.
   PER CURIAM.

11 Granted. This case is remanded to the district court for further proceedings. In accord with the criteria and procedures set forth in La.S.Ct. Rule 17, § 13, the district court is directed to enroll Edward Q. Cas-siday, of the firm of Fredrikson & Byron, Minneapolis, Minnesota, as co-counsel of record pro hac vice associated with the Capital Post-Conviction Project of Louisiana to represent relator, Michael Weary, in post-conviction proceedings. The district court is further directed to provide counsel with 180 days from the date of enrollment in which to file a supplemental application for post-conviction relief on relator’s behalf.

KNOLL, J., dissents in part and concurs in part, and assigns reasons.

VICTORY, J., dissents in part and concurs in part for reasons assigned by Justice KNOLL.

WEIMER, J., dissents in part & concurs in part, and assigns reasons.

KNOLL, Justice,

dissenting in part and concurring in part from the granting of the writ.

| Relator was convicted of first-degree murder and sentenced to death in March 2002. On April 24, 2006, this Court affirmed the conviction and sentence on direct appeal and the United States Supreme Court denied certiorari on November 27, 2006. In December 2006, relator filed a “shell” application for post-conviction relief in the district court. The district court denied relator’s pro se application in February 2007. This Court, however, issued an order setting aside the district court’s ruling, directing that court to appoint the Capital Post Conviction Project of Louisiana (CPCPL) to represent relator, and to provide counsel “reasonable opportunity to prepare and litigate expeditiously a supplemental application for post-conviction relief’ On April 1, 2008, the district court subsequently appointed CPCPL to represent relator, and gave it 45 days in which to file a supplemental application for post-conviction relief. CPCPL then requested a status conference with the court. The trial court refused to conduct the conference, but gave CPCPL until October 17, 2008 to file its supplemental application. On October 6, 2008 CPCPL moved to vacate the ^court’s order, and the trial court denied that motion on October 14,2008. The instant application to this Court followed.

According to the CPCPL, it is overworked, understaffed, and underfunded. To help relieve its burden, CPCPL, in the instant ease, has secured outside counsel, Mr. Edward Q. Cassiday, of the firm Fre-drikson & Byron, Minneapolis, Minnesota, who has agreed to enroll as pro bono counsel for relator’s post conviction proceedings. I recognize that newly appointed counsel, whether secured by CPCPL or assigned by the district court, needs adequate time to review a case. However, the CPCPL maintains that relator must be afforded time to relaunch a reinvestigation of the entire case, citing current American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (“ABA Guidelines”) as authority. I note that many of the ABA Guidelines are merely suggestive and not law. Indeed, I do not believe the law requires that counsel rein-vestigate the entire case, as though the case had never been investigated, brought to trial, and affirmed on appeal:

“[t]here is no constitutional right to an attorney in state post-conviction proceedings. Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 589 (1987); Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765, 106 L.Ed.2d 1 (1989) (applying the rule to capital cases). Consequently, a petitioner cannot claim constitutionally ineffective assistance of ■ counsel in such proceedings. See Wainwright v. Toma, 455 U.S. 586, |a102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (where there is no constitutional right to counsel there can be no deprivation of effective assistance).”

Coleman v. Thompson, 501 U.S. 722, 752, 111 S.Ct. 2546, 2566, 115 L.Ed.2d 640 (1991).

Instead of steeping himself in precatory guidelines, I would suggest allowing newly appointed counsel for relator no more than 90 days to file a supplemental application for post-conviction relief on relator’s behalf, during which time counsel focus his review of the record consistent with the rules for post-conviction relief of Louisiana, addressed in our State’s law, i.e. La. C.Cr.P. art. 924 et seq., in particular La. C.Cr.P. art. 930.3.

The delays caused in post-conviction proceedings by filing “shell” applications and the granting of continuances have unreasonably delayed the finality of death penalty cases. This practice has effectively stopped the State from carrying out the sentence in capital cases at a great expense to the State. It appears our courts have had little effect in discouraging these delaying techniques. It is probably appropriate now for the Legislature to address this aspect of post-conviction proceedings if this State is going to continue to have capital sentences.

For these reasons, I respectfully dissent in part and concur in part.

WEIMER, J.,

dissenting in part and concurring in part.

|,I believe ninety (90) days would be adequate time in which to file a supplemental application for post-conviction relief on relator’s behalf.

      . Retired Judge Philip Ciaccio, assigned as Justice ad hoc, sitting for Justice Chet D. Traylor, now retired.

      . See State v. Weary, 03-3067 (La 04/24/06), 931 So.2d 297.

      . See Weary v. Louisiana, 549 U.S. 1062, 127 S.Ct. 682, 166 L.Ed.2d 531 (2006).

      . The "shell” application was filed solely for purposes of tolling the one-year prescription period for filing for federal habeas corpus relief from state court convictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See 28 U.S.C. 2244(d)(1).

      . See State ex rel. Weary v. State, 07-1152 (La.02/24/08), 977 So.2d 941.

      . Although under La. R.S. 15:149.1 the Louisiana Legislature vested appointment power for capital post-conviction counsel exclusively to the Louisiana Indigent Defense Assistance Board (LIDAB) (now LPDB, the Louisiana Public Defender Board), and LIDAB, in turn, has delegated power to CPCPL, I would like to take this opportunity to point out that CPCPL, does not have the "market” on handling capital post conviction proceedings in this State.

      . In non-capital cases, La.C.Cr.P. art. 930.8 requires an inmate to file for post-conviction relief within two years of the finality of his conviction and sentence.

      . 31 Hofstra L.Rev. 913 (2003)

      . See Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456, 162 L.Ed.2d 360 (2005) and Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) two recent Supreme Court cases holding that trial counsel had rendered ineffective assistance at the penalty phase, and mentioning the ABA standards as an objective measure for evaluating the reasonableness of counsel's representation.

      . Art. 930.3. Grounds : If the petitioner is in custody after sentence for conviction for an offense, relief shall be granted only on the following grounds:
      (1) The conviction was obtained in violation of the constitution of the United States or the state of Louisiana;
      (2) The court exceeded its jurisdiction; (3) The conviction or sentence subjected him to double jeopardy;
      (4) The limitations on the institution of prosecution had expired;
      (5) The statute creating the offense for which he was convicted and sentenced is unconstitutional; or
      (6) The conviction or sentence constitute the ex post facto application of law in violation of the constitution of the United States or the state of Louisiana.
      (7)The results of DNA testing performed pursuant to an application granted under Article 926.1 proves by clear and convincing evidence that the petitioner is factually innocent of the crime for which he was convicted. La.C.Cr.P. Art. 930.3 (2009)


author: PER CURIAM.

text:
    HOUSING AUTHORITY OF NEW ORLEANS v. Tony EASON.
    No. 2009-C-992.
    Supreme Court of Louisiana.
    June 26, 2009.
   PER CURIAM.

I,We granted certiorari in this matter to consider whether 11 U.S.C. § 525 is applicable in the context of public housing evictions for failure to pay pre-petition rent which was discharged in bankruptcy. For the following reasons, we find that the statute is not applicable and does not prevent a Public Housing Authority from using unpaid lease payments as a basis for evicting a lessee. Consequently, we reverse the Fourth Circuit Court of Appeal’s judgment and reinstate the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

Tony Eason (“Mr. Eason”), pursuant to a written lease bearing his signature, leased an apartment from the Housing Authority of New Orleans (“HANO”) on October 19, 2004 for $254.00 per month. Despite Mr. Eason’s failure to pay his rent | consistently, HANO offered financial counseling, repayment plans, delayed collection of monies owed, and it also waived his financial obligations for the full year of 2006.

In 2007, HANO sought to dissolve the lease and regain possession of the property. On September 4, 2007, HANO filed a Rule for Possession in state court, wherein it sought to evict Mr. Eason from the property for his nonpayment of rent for the period of January 1, 2007 through September 1, 2007, which totaled $2,620.13 in outstanding monthly rent payments. The hearing on the Rule was scheduled for October 3, 2007. However, Mr. Eason filed a bankruptcy petition in the United States Bankruptcy Court on October 2, 2007, seeking relief under Chapter 7 of Title 11 of the Bankruptcy Code. In this petition, Mr. Eason listed HANO as an “Unsecured Non-priority Claim.” The filing of the bankruptcy petition resulted in an automatic stay of the eviction proceeding in state court pursuant to 11 U.S.C. § 362.

During the bankruptcy proceedings, Mr. Eason attempted to tender payments to HANO for post-petition rent. However, after HANO informed Mr. Eason that it was not the proper party to receive the payments due to the federal court order that stayed all proceedings, the funds were deposited into the registry of the state court.

On December 5, 2007, after Mr. Eason’s petition was classified as an eligible discharge, HANO filed a Motion to Lift Automatic Stay. At the hearing on the stay, Mr. Eason asserted that since he paid his post-petition rent and his pre-petition rent was dischargeable in bankruptcy, he did not owe HANO anything. Accordingly, he contended that HANO could not pursue its eviction claim against him. Ultimately, the Bankruptcy Court granted HANO’s motion, finding that post-petition rents paid in escrow had no effect on the eviction proceedings.

Mr. Eason appealed this decision in his federal proceedings three separate | ¡¡times. Each time, his appeal was considered and denied.

On February 7, 2008, the state court conducted the eviction hearing. The trial court ruled in HANO’s favor, permitting it to regain possession of its property. Mr. Eason filed a motion for appeal, assigning as error the granting of the Rule for Possession.

The Louisiana Court of Appeal for the Fourth Circuit reversed the trial court’s judgment and remanded the case for further proceedings. In so doing, it relied on the language of 11 U.S.C. § 525(a), which provides, in pertinent part, that:

... a governmental unit may not deny, revoke, suspend, or refuse to renew a license, permit, charter, franchise, or other similar grant to, condition such a grant to, discriminate with respect to such a grant against, deny employment to, terminate the employment of, or discriminate with respect to employment against, a person that is or has been a debtor under this title or a bankrupt or a debtor under the Bankruptcy Act, or another person with whom such bankrupt or debtor has been associated, solely because such bankrupt or debtor is or has been a debtor under this title or a bankrupt or debtor under the Bankruptcy Act, has been insolvent before the commencement of the case under this title, or during the case but before the debtor is granted or denied a discharge, or has not paid a debt that is discharge-able in the case under this title or that was discharged under the Bankruptcy Act.

Also, the court based its ruling on Stoltz v. Brattleboro Housing Authority, 315 F.3d 80, 88 (2d Cir.2002) wherein the United States Court of Appeals for the Second Circuit held that a public housing lease is a grant “similar” to a “license, permit, charter or franchise.” Accordingly, the Court of Appeal found that HANO, a governmental entity, is prohibited from evicting tenants solely on the basis of non-payment of pre-petition rent pursuant to the history of 11 U.S.C. § 525.

By letter dated June 22, 2009, Mr. Ea-son’s counsel represented to this Court that Mr. Eason vacated the Housing Authority apartment that is the subject of this litigation. Accordingly, Mr. Eason suggested that this action might render | consideration of the writ application moot. However, after further review, this Court finds it necessary to grant the writ application and issue this opinion in light of both the absence of a judgment ordering that the tenant be evicted and the published Fourth Circuit decision that misapplies a federal statute. 1

LAW AND DISCUSSION

HANO argues that 11 U.S.C. § 525(a) is inapplicable in the instant case, insofar as the statute contemplates bankruptcy-based discrimination and HANO was not seeking any form of retaliation. It urges that it was following state laws relevant to evicting a Louisiana tenant pursuant to a Louisiana lease for failure to tender rent payments. HANO also reminds this court of its numerous attempts to work with and counsel Mr. Eason in an effort to keep him housed and rents current.

Regarding the interplay of Louisiana state law and the Bankruptcy Code, HANO asserts that the discharge of debts works to provide a debtor with a clean slate but does not relieve the debtor from all contractual liability or prevent a creditor from exercising its rights.

Mr. Eason, alternatively, argues that a bankruptcy mandate supercedes a contract governed by state law. Primarily, he relies on Stoltz, wherein the court held that 11 U.S.C. § 525(a) prohibits eviction based solely on the non-payment of discharged pre-petition rent. 315 F.3d 80.

We find that 11 U.S.C. § 525(a) is inapplicable in the matter at issue. The post-petition tenders are not proper grounds for denying HANO the right to evict Mr. Eason, the debtor, for violating the terms of his lease. Furthermore, the classification of the pre-petition rent as discharged does not render the right of HANO to evict Mr. Eason non-existent. There is no legal support for the notion that an individual is allowed to live rent-free for a period of two years without the lessor having eviction |sas an available avenue of recourse. Accordingly, the Court of Appeal’s decision is reversed, and the trial court’s judgment is reinstated.

DECREE

Based on the foregoing, we find that 11 U.S.C. § 525(a) is inapplicable in the context of public housing for the purposes of evicting a lessee for failure to pay discharged pre-petition rent. Accordingly, the Court of Appeal judgment is reversed, and the trial court’s judgment is reinstated.

REVERSED.

      . The relevant language of this statute is set out in the body of the opinion, infra.

      . Louisiana Code of Civil Procedure Article 4733 provides:
      If the lessee or occupant does not comply with the judgment of eviction within twenty-four hours after its rendition, the court shall issue immediately a warrant directed to and commanding its sheriff, constable, or marshal to deliver possession of the premises to the lessor or owner.


text:
    NATIONAL INTERSTATE INSURANCE COMPANY v. Donna PLAIN, Mycatosh Graham, Barbara Godchaux, Carolyn Johnson, Ashley Johnson, Kathleen Cage, Attlah Darensbourg, Janice Carter, Johnny Carter, Reginald Hamilton, Linda Omeumu, Shawn Dupree, Gwen Dupree, Kathleen Gabe, Wanda Jackson, Tinnen Oulightfrotx.
    No. 2008-CA-0698.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 2009.
    Douglas K. Williams, Lervette J. Blair, Scott N. Hersgens, Baton Rouge, LA, for Plaintifi/Appellee National Interstate Insurance Company.
    Kirk A. Williams, Baker, LA, and Vincent J. DeSalvo, Baton Rouge, LA, for Defendants/Appellants Donna Plain, Individually and as Natural Tutrix of the Minor Children, D’Andre Turner, Antonio Turner, Justin Turner and Erica Turner; Mycatosh Graham, Individually and as Natural Tutrix of the Minor Child, Christopher Carter; Barbara Godchaux, Individually and as Natural Tutrix of the Minor Children, Christian Godchaux and Michael Taylor; Carolyn Johnson, Individually and as Natural Tutrix of the Minor Children, Antonio Johnson and Kyla Johnson; Ashley Johnson; Kathleen Cage; Attlah Darensbourg; Janice Carter, Individually and as Natural Tutrix of her Minor Grandchildren, Jason Carter, Asher Smith, and Samantha Parker; Johnny Carter; Reginald Hamilton; Linda Omuemu, Individually and as Natural Tutrix of the Minor Child, Raven Omuemu; Shawn DuPree, Individually and as Natural Tutor of the Minor Children, Jessika DuPree, Shasnzee DuPree, and Shawn DuPree; Gwen DuPree; Kathleen Gabe; Wanda Jackson; Tinnen Uolightfrotxos; Loyette Collins; Individually and as Natural Tutrix of the Minor Children, Lahairoi Collins, Leal Collins, David Collins, and Leah Collins; D. Coleman, Individually and as Natural Tutor/Tutrix of the Minor Child, Qshailya George; Samuel Edo, Individually and as Natural Tutor of the Minor Children, Stacy Edo, Shanice Edo, Shondell Edo, and Shamuel Edo; Inez Davis, Individually and as Natural Tutrix of the Minor Child, Tatiana Jackson; and Earlene Johnson, Individually and on Behalf of her Minor Child, Amber Johnson.
    Before WHIPPLE, GUIDRY, PETTIGREW, MCDONALD and HUGHES, JJ.
   ON REHEARING

PER CURIAM.

|sAppeIlee, National Interstate Insurance Company (“National Interstate”), has petitioned this court for a rehearing of our February 13, 2009 decision, reversing the trial court’s judgment granting National Interstate’s Motion to Dismiss and denying appellants’ motion for summary judgment concerning the validity of an uninsured/underinsured (“UM”) selection form. National Interstate alleges that our original opinion is inconsistent with the Louisiana Supreme Court decision in Harper v. Direct General Insurance Company, et al, 2008-2874 (La.2/13/09), 2 So.3d 418, handed down the same date as our original opinion. We grant rehearing for the limited purpose of clarifying our original opinion and for reassessment in light of Harper.

In our original opinion, we found the UM selection form invalid because the signatory’s capacity was uncertain on the face of the form. We clarify our original opinion to expressly note that the form is uncertain not only because Mr. Augusta did not indicate that he was signing in a representative capacity for Dixieland Tours and Cruises (“Dixieland”), but also because the name of the insured company, Dixieland, is nowhere noted on the form.

With that clarification, we re-examine our holding in light of Harper and find that Harper does not change the result that we originally reached. Notably, in Harper, the named insured, Sears, was typed on the form, and the form was signed by Laurence Jenchel, Sears’ legal representative. The supreme court in Harper held that as long as the name of the named insured is printed and the legal representative signs the form, both tasks #3 and # 4 as outlined in Duncan v. U.S.A.A. Ins. Co., 2006-363 (La.11/29/06), 950 So.2d 544, are satisfied. Under the facts of Hamper, the supreme court concluded that Sears’ legal representative could sign his name without indicating that he was signing in a representative capacity because it would be absurd to conclude that a corporate entity, Sears as the named insured, could sign its own name. Harper, 2 So.3d at 419-420.

By contrast, in the instant case, the name “Dixieland” is not printed on the UM waiver form. As such, a mere review of this form does not reveal whether Norman | ^Augusta on behalf of a corporation or Norman Augusta, the individual, selected lower limits. Therefore, the form is not clear and unmistakable.

As clarified herein, and after re-examination of our opinion in light of Harper, the original opinion of this court is affirmed.

REHEARING GRANTED FOR THE LIMITED PURPOSE OF CLARIFICATION; APPELLATE JUDGMENT OF FEBRUARY 13, 2009 MAINTAINED.

McDONALD, J., dissents and would grant a rehearing on the merits.


author: DREW, J.

text:
    James E. BRADFORD, Plaintiff-Appellant v. Dr. Gail Shorter JUDSON, Defendant-Appellee.
    No. 44,092-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 6, 2009.
    Rehearing Denied June 18, 2009.

      Culpepper & Carroll, PLLC, by Bobby L. Culpepper, Jonesboro, for Appellant.
    Hudson, Potts & Bernstein, L.L.P. by Robert McCuller Baldwin, Johnny R. Huckabay II, Monroe, for Appellee.
    Before BROWN, DREW and LOLLEY, JJ.
   DREW, J.

_[iFrom a judgment granting motions for summary judgment and special motions to strike, James E. Bradford appealed and complained that the trial court erred in dismissing with prejudice his defamation action and casting him with $6,000 in attorney’s fees. For the following reasons, the judgment is reversed and the matter is remanded for further proceedings.

Mr. Bradford, longtime president of the Grambling University National Alumni Association (“GUNAA”), brought this action for defamation against Dr. Gail Shorter Judson (“Dr. Judson”), wife of Grambling State University President Dr. Horace Judson. This litigation was predicated upon an email sent June 28, 2006, from Dr. Judson to Bettye Fontenot, a Grambling alumna, concerning a dispute between GSU and GUNAA over more than $800,000 in proceeds from the 2005 Bayou Classic football game. The email stated, among other things: ‘You or Johnny Williams should inquire about the $800k + Bayou Classic receipts in GUNAA’s Foundation that were taken illegally (or stolen, for lack of a better word) by Mr. Bradford on behalf of GUNAA.” Bettye Fontenot forwarded the email to Mr. Bradford, who filed this action for defamation.

A 1965 Grambling State University graduate with a degree in Industrial Arts Education, Mr. Bradford has worked for 37 years at Smurfit Stone Container in Jonesboro, where he is now manager of Government Affairs. Shortly after his graduation, Mr. Bradford became a member of GUNAA and of the Jackson Parish Alumni Chapter. A lifetime member, Mr. Bradford was elected President of GU-NAA in 1992 and served for 14% 12years until December 31, 2006. Mr. Bradford listed the following purposes of GUNAA:

• to support the university,
• to act as liaison between the university and the alumni,
• to raise funds for Grambling,
• to recruit students, and
• to perform public relations for the university.

As described by Mr. Bradford, GUNAA was a nonprofit and all its activities were designed to support Grambling State University. In 1999, GUNAA became sponsor of the annual Bayou Classic, the nationally known football game between Grambling and Southern University. Prior to 1999, the Bayou Classic had been exclusively sponsored by the Grambling State University Foundation, with no involvement of GUNAA.

Since the university could not legally act as sponsor of the event, GUNAA acted as sponsor and signed an Affiliation Agreement with the university. According to Mr. Bradford, GUNAA basically agreed to be liable for any claims arising out of the endeavor. Dr. Horace Judson, president of GSU, terminated the Affiliation Agreement by letter in 2005, months before the game. GUNAA had nothing to do with the 2005 Bayou Classic, but according to Mr. Bradford, in previous years GUNAA also provided no services to the Bayou Classic, but took the risk for any potential liability.

Mr. Bradford stated that he was informed that GSU submitted GUNAA’s name, which was used without GUNAA’s knowledge and |,^consent, for the 2005 Bayou Classic. Bickerstaff Sports Entertainment, Inc., sent some $863,000 in 2005 Bayou Classic proceeds to GUNAA in late May of 2006. On June 6, 2006, the GSU president sent a letter requesting the proceeds be turned over to GSU. Six weeks later, on July 17, 2006, GSU received a check from GUNAA. The delay in remitting the proceeds was apparently because of Mr. Bradford’s concerns about GU-NAA’s name being used without permission in connection with the 2005 Bayou Classic and about GUNAA’s accrual of potential liability due to the actions of GSU.

After a detailed and thoughtful analysis on the law of summary judgment in defamation actions and on the law applicable to defamation, the trial judge found that in the context of this dispute, Mr. Bradford was a public figure and this “cause of action arose in connection with a public issue in furtherance of one party’s constitutional right of free speech.” Finding that Mr. Bradford failed to satisfy his burden of establishing a probability of success in his defamation claim, the trial court granted Dr. Judson’s motion for summary judgment and special motions to strike Mr. Bradford’s claims, with prejudice, and awarded Dr. Judson $6,000 in attorney’s fees with legal interest from judgment and all costs.

DEFAMATION LAW

In Kennedy v. Sheriff of East Baton Rouge, 2005-1418 (La.7/10/06), 935 So.2d 669, the court examined the tort of defamation, which is the invasion of a person’s interest in his or her reputation and good name. Four elements are necessary to establish a claim for defamation: (1) a false and |4defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury. The fault is generally considered to be malice, actual or implied. By definition, a statement is defamatory if it tends to harm a person’s reputation, lowers the person in the estimation of the community, deters others from associating with the person, or otherwise exposes the person to contempt or ridicule.

In Louisiana, defamatory words have traditionally been divided into two categories. First, words that are defamatory per se are those which expressly or implicitly accuse another of criminal conduct, or which by their very nature tend to injure one’s personal or professional reputation, without considering extrinsic facts or circumstances. When a plaintiff proves publication of words that are defamatory per se, falsity and malice (or fault) are presumed, but may be rebutted by the defendant. Injury may also be presumed. The second type are words that are susceptible of a defamatory meaning. In that case, a plaintiff must prove, in addition to defamatory meaning and publication, falsity, malice (or fault) and injury. Kennedy, supra.

In Kennedy, supra, the court analyzed the development of the constitutional constraints on defamation actions to avoid abridging freedom of speech or freedom of the press guaranteed by the First Amendment of the United States Constitution. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court held that the First Amendment prohibits a public official from recovering damages |sarising from a defamatory falsehood published concerning his or her official conduct unless the public official proved that statement was made with “actual malice,” i.e., a statement known to be false or a statement made with reckless disregard of whether it was false or not. Traditional rules of defamation had imposed strict liability on the publisher of a defamatory statement which later proved to be false, regardless of whether the publisher had carefully checked the accuracy of the statement and reasonably believed it to be true. To avoid the chilling effect on constitutionally valuable speech and debate, the New York Times decision not only imposed the requirement of a high degree of fault in defamation actions brought by public officials, but also shifted the burden of proof of fault to the public official whose burden was to establish “actual malice” by clear and convincing evidence. Kennedy, supra. To prove “actual malice,” a plaintiff must demonstrate with clear and convincing evidence that the defendant realized that her statement was false or that she subjectively entertained serious doubt as to the truth of the statement.

These constitutional protections were extended to public figures when the defamatory statements related to issues of public concern. A public figure was defined as a nonpublic official who was intimately involved in the resolution of an important public question. Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967). In Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), this protection was extended to communications concerning | (¡public or general concern regardless of whether the person involved was famous or anonymous. Kennedy, supra.

A college student, Kennedy sued the fast food vendor and the East Baton Rouge Parish Sheriff when he was detained, cuffed and taken to a substation while deputies determined whether a $100 bill he tendered for the food was counterfeit. An employee had notified law enforcement, reporting the bill was suspected to be counterfeit. The bill was genuine and Kennedy was released and his money was returned. Kennedy, a nonpublic plaintiff, sued a nonmedia defendant (fast food vendor) concerning speech that was of public concern (a report to law enforcement of suspected criminal activity). In Louisiana, the extended constitutional protections apply to media and nonmedia defendants alike. See discussion, Kennedy, 2005-1418 at pp. 9-11, 935 So.2d at pp. 677-679.

The Kennedy court found that when a private individual sues a nonmedia defendant over a defamatory statement about a matter of public concern, the claimant must establish malice, or fault, which is a lack of the reasonable belief in the truth of the statement giving rise to the defamation. Kennedy, supra. The court applied the standard set out in Restatement (Second) of Torts § 580(B) to a defamatory statement concerning a private person (or a public figure in relation to a private matter not affecting his public capacity). Such a statement is subject to liability only if, the defendant (1) knows the statement is false and defamatory; (2) acts in reckless disregard of these matters; and (3) acts negligently in failing to ascertain them. Thus, to succeed, Kennedy had the burden of proving (1) a |7false and defamatory statement; (2) an unprivileged publication to a third party; (3) negligence, as defined in Restatement (Second) of Torts § 580(B); and (4) resulting injury. If any one of those elements was absent, the cause of action failed.

In Louisiana, privilege is a defense to a defamation claim. The encouragement of free communication of views in particular circumstances without incurring liability for defamation is a matter of public policy. An absolute privilege exists for limited situations such as statements by judges and legislators in judicial or legislative proceedings.

A conditional privilege may be found in situations in which the person’s interest is regarded as sufficiently important to justify some latitude for making mistakes so that publication of the defamatory statement is conditionally privileged. Impossible to precisely define, a conditional privilege has been described as containing these elements: good faith, an interest to be upheld, and a statement limited in scope to this purpose, a proper occasion, and publication in the proper manner and to proper parties only. Kennedy, supra.

A conditional privilege clearly existed in Kennedy, supra. A strong public policy exists in favor of a conditional privilege being extended to reports to law enforcement of alleged wrongful acts to protect the public. Therefore, there is no civil liability imposed on a citizen for inaccurately reporting criminal misconduct with no intent to mislead. The fast food employee reported a matter of public interest to the proper authorities who had a duty to investigate.

| SA conditional privilege may be defeated if the offended person proves that privilege was abused. Abuse is shown if the offended person establishes that the publisher knew the statement to be false or acted in reckless disregard to the statement’s truth or falsity. Recklessness requires a plaintiff to establish that the publication was deliberately falsified, or published despite the publisher’s awareness of probable falsity. Curtis Publishing Co. v. Butts, supra. Mere negligence concerning falsity (or lack of reasonable grounds for believing the statement is true) is not sufficient to prove abuse of a conditional privilege which requires proof of knowledge of falsity or reckless disregard as to falsity. Kennedy, supra.

In Kennedy, supra, the court set out a two-step analysis for evaluating whether a conditional privilege exists. First, do the attending circumstances of a communication justify a conditional privilege? Second, was the privilege abused, i.e., the examination of the grounds for malice (abuse or lack of good faith)? Generally, the first step is a question of law for the court while the second, a determination of abuse of privilege or malice, is a fact question for the trier of fact.

SUMMARY JUDGMENT

In Kennedy, supra, 2005-1418 at p. 25, 935 So.2d at 686, the court stated:

[B]ecause of the chilling effect on the exercise of free speech, defamation actions have been found particularly susceptible to summary judgment. Summary adjudication, we have recognized, is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press.

|9In Sassone v. Elder, 626 So.2d 345 (La.1993), the supreme court stated that in order to survive a motion of summary judgment, a plaintiff in a defamation action must produce evidence of sufficient quality and quantity to demonstrate he is likely to meet his burden of proof at trial. In the later case of Kennedy, supra, the court observed that the 1996 legislative amendment to summary judgments, which ai'e now favored, made a different standard for defamation unnecessary. However, the conditions making defamation claims particularly susceptible to summary judgment are still the same. Kennedy, supra.

It is well settled that appellate courts review summary judgments de novo under the same criteria that govern the district court’s consideration of whether summary judgment is appropriate. A court must grant a motion for summary judgment “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.” La. C.C.P. art. 966(B). The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of civil actions (with the exception of certain domestic matters) and is favored in our law. La. C.C.P. art. 966(A)(2).

The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mov-ant’s burden on the motion does not require him to negate all essential elements of the adverse party’s claim, action, or defense, but rather to point out to the court that | ]nthere is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La. C.C.P. art. 966(C)(2). A “genuine issue” is a “triable issue,” or one on which reasonable persons could disagree. A “material fact” is a fact, the existence or nonexistence of which may be essential to plaintiffs cause of action under the applicable theory of recovery. Kennedy, supra.

DISCUSSION

Dr. Judson sent the email to Ms. Fonte-not stating that the 2005 Bayou Classic proceeds were “taken illegally (or stolen, for lack of a better word) by Bradford[.]” As the trial court correctly found in the comprehensive reasons for judgment, this statement was defamatory per se (it accused Mr. Bradford of a crime) and the email constituted publication.

While Mr. Bradford argues on appeal that the trial court erred in finding him to be a public figure, we agree with the trial court’s assessment that he is a public figure. Mr. Bradford was president of the Grambling’s national alumni association for many years and was actively involved in supporting the public university including Grambling’s efforts to televise and profit from the Bayou Classic football rivalry with Southern University. The record contained documents showing he was involved in many aspects of the university’s activities, including efforts to remove Dr. Judson’s Inhusband as university president. A prominent alumnus, Mr. Bradford was very active in seeking changes he felt were needed at the school.

Clearly, Dr. Judson’s email communication to Ms. Fontenot pertained to a matter of public concern, ie., a significant financial dispute affecting Grambling State University. The trial court also determined that a conditional privilege existed between Dr. Judson and Ms. Fontenot. Although not an employee of the university, Dr. Judson, as the wife of the university president, was .an active volunteer in university life and took on substantial tasks in the administration. She assisted her husband in discharging his duties and was responding in his absence to an email from a Grambling alumna. Because she believed Ms. Fontenot was a Mend of Mr. Bradford’s and might have influence with him, Dr. Judson requested she speak to him about the disputed 2005 Bayou Classic Funds.

In summary, we have a public figure (Mr. Bradford) bringing a defamation action against a nonmedia defendant (Dr. Judson) who published a communication that was defamatory per se (Mr. Bradford was stated to have stolen university funds). While as a public figure, Mr. Bradford is entitled to a rebuttable presumption of malice and injury, he still must establish actual malice by clear and convincing evidence.

As previously noted, privilege is a defense to a defamation action. The attending circumstances establish that a conditional privilege existed for the communication from Dr. Judson to Ms. Fontenot. The women shared a common interest in the welfare of Grambling State University. As a response to an email from Ms. Fonte-not concerning GSU, Dr. Judson’s | ^communication was limited in scope on a proper occasion and manner. Initially, Dr. Judson sent the email only to Ms. Fonte-not requesting her assistance in resolving a dispute.

To prevail in this defamation action, Mr. Bradford must show that there was an abuse of that conditional privilege. To prove abuse, Mr. Bradford must show that Dr. Judson knew that her theft statement was false or that she acted with reckless disregard to the truth or falsity of her accusation. To establish recklessness is very difficult, since the complaining person must show the publication was deliberately falsified or was communicated despite the publisher’s awareness of probable falsity.

We agree with the trial court’s legal conclusion that a conditional privilege existed concerning the email. Our only disagreement with the trial court’s excellent analysis of this dispute is the ultimate result reached. The determination of abuse of the privilege is a genuine issue of material fact for the trier of fact. In the context of the motions for summary judgment, Mr. Bradford must produce evidence of sufficient quality and quantity to demonstrate he is likely to meet that burden at trial. Kennedy, supra.

In this case, what constitutes truth depends completely on who is stating it. Dr. Judson vigorously asserted that Mr. Bradford, as president of GUNAA, held funds that belonged to GSU. Prior to sending the email, Dr. Judson was aware that Mr. Bradford had made a couple of efforts to return the funds to GSU in exchange for GSU agreeing to hold GUNAA harmless for any liability arising from the transaction and the use of GUNAA’s identification for the 2005 Bayou Classic. Apparently, Mr. Bradford’s | ^proposed venues and conditions for giving GSU the funds were unacceptable. At the time Dr. Judson sent her email on June 28, 2006, the money was still in GUNAA’s account. In Dr. Judson’s mind, Mr. Bradford held funds that did not belong to him, making her statement that he had illegally taken or stolen the fund completely true. Her information about the dispute came from her husband. She did not recall whether her husband told her Mr. Bradford had illegally taken or stolen the funds. Although Mr. Bradford’s attorney sent her correspondence asking her to retract her accusation and apologize for the language in the email, she said she was away from GSU the entire summer. She neither returned nor read her correspondence until after Labor Day, at which time suit had already been filed.

The entire time line of this disagreement covers a relatively short period of time with the specific monetary issue lasting less than two months from start to finish. GSU got the proceeds from the 2005 Bayou Classic, just not quickly enough to suit Dr. Judson.

Spring 2005 GSU ended GUNAA affiliation with Bayou Classic
Fall 2005 Bayou Classic (GSU allegedly used GUNAA’s name)
May 26, 2006 Bickerstaff Sports Enterprises, Inc., sent 2005 Bayou Classic proceeds to GUNAA
June 6, 2006 GSU President asked GU-NAA to remit the funds to GSU
June 2006 GUNAA sought to deliver the funds in exchange for GSU agreeing to hold GUNAA harmless for any liability associated with the use of GUNAA’s | ^identification to facilitate broadcast of the 2005 Bayou Classic
June 28, 2006 Dr. Judson sent her email to Ms. Fontenot
July 17, 2006 GSU received the disputed funds from GUNAA, less a $46,000 handling fee

Although GSU through its president had terminated GUNAA’s association with the Bayou Classic, Mr. Bradford stated he learned that GUNAA’s name had been submitted without the organization’s knowledge and permission for use in getting the 2005 Bayou Classic televised. Because GUNAA’s name was apparently on the documentation with Bickerstaff Sports Enterprises, Inc., Bickerstaff remitted the proceeds to GUNAA. GSU quickly made demand for GUNAA to turn the money over to the university. Because GUNAA’s past function with the Bayou Classic had been primarily been its agreement to be responsible for any liability which arose out of the transaction, Mr. Bradford sought to protect GUNAA by requesting the GSU hold GUNAA harmless in the event any liability arose out of the 2005 Bayou Classic. Mr. Bradford also made unsuccessful efforts to make a presentation of the funds. Dr. Judson was aware of those negotiations at the time she sent her email. Mr. Bradford stated that he personally never received any funds related to the 2005 Bayou Classic which were sent to GUNAA and placed in that association’s bank account.

As noted, the trial court provided an excellent road map for deciding this case, and her hard work has made our task easier. We find fault with little in the findings of the court below, other than its ultimate conclusion. We feel that plaintiff should have the right to try his case and prove it at a |1fifull trial. The email was hurtful and certainly unworthy as a characterization of a business dispute which had lasted, at that time, a few short weeks.

Both sides are telling the “truth” as they know it. Weighing credibility has no place in a motion for summary judgment. Mr. Bradford should be permitted to present his version and Dr. Judson hers. The trier of fact can then weigh the credibility of the accounts and decide if Dr. Judson abused the conditional privilege by making her publication, which was deliberately falsified or communicated despite her awareness of probable falsity.

DECREE

We reverse the trial court’s granting of Dr. Judson’s motions for summary judgment, its granting of the special motions to strike, and its award of attorney’s fees. This ruling obviates consideration of any other assignments of error.

At the cost of defendant, the judgment is reversed and the matter is remanded for further proceedings.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING Before BROWN, WILLIAMS, STEWART, DREW and LOLLEY, JJ.

| Rehearing denied.

      . After a $46,000 handling fee was deducted by GUNAA, a check for $816,952.98 was received by GSU.


author: PEATROSS, J.

text:
    Scott Richard DURFEE, Plaintiff-Appellee v. Amber D’Laine DURFEE, Defendant-Appellant.
    No. 44,281-CA.
    Court of Appeal of Louisiana, Second Circuit.
    May 13, 2009.
    Rehearing Denied June 18, 2009.

      Raley Law Firm, by Robert W. Raley, Bossier City, for Appellant.
    William B. King, Shreveport, for Appel-lee.
    Before PEATROSS, DREW & LOLLEY, JJ.
   PEATROSS, J.

1 íFollowing a Rule to Show Cause in this child support case, the trial court ordered that Amber D’Laine Durfee pay to Scott Durfee monthly child support in the amount of $473.21, through income assignment order. The trial court further ordered that Ms. Durfee continue to provide health insurance coverage for the two minor children, but specifically disallowed Ms. Durfee to deduct the monthly health insurance premiums from her total child support obligation. This appeal ensued. For the reasons stated herein, we reverse the judgment of the trial court and remand for further proceedings in accordance with this opinion and applicable law and jurisprudence.

FACTS

Mr. and Mrs. Durfee divorced and an interim judgment was entered in 2004 granting the parties shared custody of their two minor children with Mr. Durfee being ordered to pay to Ms. Durfee $500 in monthly child support. Subsequently, in March 2006, Ms. Durfee filed a Rule to increase the amount of child support paid to her by Mr. Durfee. That matter was apparently never litigated; however, the Department of Social Services filed a Rule to Increase Child Support in May 2007. The hearing officer presiding over the matter recommended that the amount of child support paid by Mr. Durfee to Ms. Durfee be reduced from $500 per month to $158 per month. The hearing officer’s recommendations were implemented by the trial judge on August 18, 2006.

According to Ms. Durfee, however, the reduction in child support left her unable to properly care for the two minor children and in February 2007, |?as a purported solution to the problem, Ms. Durfee signed a consent judgment granting Mr. Durfee sole custody of the two minor children which included a clause that “neither party will pay child support to the other.” According to Ms. Durfee, Mr. Durfee assured her that he would not require her to pay child support once she signed the consent judgment granting him sole custody of the children. Less than a year later, Mr. Dur-fee filed a rule to establish support through the Department of Social Services and the case was referred back to the civil judge.

Mr. Durfee then filed a Rule to Show Cause in June 2008 asking for child support to be set by the trial court. Mr. Durfee claimed that there had been a change in circumstances since he had been awarded sole custody of the minor children in February 2007 and that warranted reconsideration of the child support award. Since Mr. Durfee and his current wife lived in a home with Mr. Durfee’s two children and his current wife’s two children, Mr. Durfee’s current wife quit her job in order to stay at home and care for the four children living there. Accordingly, Mr. Durfee’s current wife no longer brought in her monthly income of approximately $1,732, and Mr. Durfee claimed that this constituted a change in circumstances.

Ms. Durfee filed an Exception of No Cause of Action which was overruled by the trial judge on the grounds that Mr. Durfee was legally entitled to request child support as the domiciliary parent of the children exercising sole custody. The hearing went forward on the merits and the trial judge ordered Ms. Durfee to pay monthly child support to Mr. Durfee in the amount of $473.21. The trial judge further ordered Ms. Durfee to 1 ^maintain health insurance coverage for the two minor children by making direct payments for the monthly premiums in the approximate amount of $295. Finally, the trial judge ordered that Ms. Durfee was specifically prohibited from offsetting her total child support obligation by the amount of monthly health insurance premiums she paid for the minor children.

Ms. Durfee now appeals.

DISCUSSION

On review, an appellate court may not set aside the findings of fact by the trial court unless those findings are clearly wrong or manifestly erroneous. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94), 633 So.2d 129; Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). An appellate court must not base its determination on whether it considers the trier of fact’s conclusion to be right or wrong, but on whether the fact finder’s conclusion was reasonable. Stobart, supra.

In order to reverse a fact finder’s determination of fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous. Salvant v. State, 05-2126 (La.7/6/06), 935 So.2d 646; Stobart, supra. The appellate court must not reweigh the evidence or substitute its own factual findings because it would have decided the case differently. Pinsonneault v. Merchants & Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270. Where the fact finder’s conclusions are based on ^determinations regarding credibility of a witness, the manifest error standard demands great deference to the trier of fact because only the trier of fact can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell, supra. With regard to decisions of law, however, a trial court’s ruling is subject to de novo review. Hall v. Folger Coffee Co., 03-1734 (La.4/14/04), 874 So.2d 90.

The case sub judice stems from a consent judgment signed by the parties and the trial judge in February 2007 which states that neither party will have the obligation to pay child support. A consent judgment is a bilateral contract which is voluntarily signed by the parties and accepted by the court. Gray v. Gray, 37,884 (La.App. 2d Cir.12/12/03), 862 So.2d 1097. It has binding force from the voluntary acquiescence of the parties, not from the court’s adjudication. Id.; Mobley v. Mob-ley, 37,364 (La.App. 2d Cir.8/20/03), 852 So.2d 1136; Gulledge v. Gulledge, 32,561 and 32,562 (LaApp. 2d Cir.8/18/99), 738 So.2d 1229. A contract is unlawful when the enforcement of the obligation would produce a result prohibited by law or against public policy. See La. C.C. art. 1968.

Fathers and mothers, by the very act of marrying, contract together the obligation of supporting, maintaining and educating their children. See La. C.C. art. 227. In Lutke v. Lutke, 33,001 (La.App. 2d Cir.2/1/00), 750 So.2d 512, this court discussed the complexities of child support disputes. The support obligation imposed on a mother and a father of minor children by La. C.C. art. 227 is firmly entrenched in our law and is a | ¿matter of public policy. See La. C.C. art. 227; Davis v. Davis, 43,490 (La.App. 2d Cir.10/22/08), 997 So.2d 149; Lutke v. Lutke, supra. Neither equity nor practical inability to pay overrides this policy or allows a parent to avoid paying his or her share of the obligation where the inability arises solely from that parent’s own neglect and failure. Id.

The consent judgment signed by the parties and the trial judge in February 2007 indicates that Mr. Durfee would retain sole custody of the two minor children and that “neither party will pay child support to the other.” In accordance with the statutory law and jurisprudence set forth above, we find that the portion of the consent judgment indicating that neither party is to pay child support to the other is against public policy and, thus, void. See La. C.C. art. 227; Davis v. Davis, supra; Lutke v. Lutke, supra.

Accordingly, we will discuss Ms. Durfee’s first assignment of error regarding the existence of a change in circumstances after the initial child support award and the present circumstances underlying Mr. Durfee’s right to child support. Ms. Durfee contends that the trial judge erred because she did not require Mr. Durfee to show an involuntary material change in circumstances before granting his motion for a modification of child support. According to Ms. Durfee, Mr. Dur-fee’s current wife’s decision to voluntarily quit her job should not be considered by the court as a reason to modify the child support award. We agree.

An award of child support may be modified if the circumstances of the child or of either parent materially change and shall be terminated upon|fiproof that it has become unnecessary. See La. C.C. art. 142. A party seeking a reduction in child support must show 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. See La. R.S. 9:311(A); Strange v. Strange, 42,318 (La.App. 2d Cir.6/20/07), 960 So.2d 1223; Wyatt v. Wyatt, 39,518 (La.App. 2d Cir.4/6/05), 899 So.2d 788. Requiring proof of a change of circumstances is useful to prevent relitigation of the same issues and to protect the finality of judgments and compromises. Armstrong v. Rayford, 39,653 (La.App. 2d Cir.5/11/05), 902 So.2d 1214; Craft v. Craft, 35,785 (La.App. 2d Cir.1/23/02), 805 So.2d 1213. A change of circumstances is a change material to the well-being of the child and his or her support that has occurred since the rendering of the original award. Armstrong v. Rayford, supra; Craft v. Craft, supra.

Louisiana jurisprudence distinguishes between voluntary and involuntary changes in circumstances. Strange v. Strange, supra. An involuntary change in circumstances results from fortuitous events or other circumstances beyond a person’s control, such as loss of one’s employment position or illness and may support a modification of child support. Id. A voluntary change in circumstances, however, generally does not justify a reduction in the support obligation. Id.

The party seeking a reduction of his child support obligation has the burden of proving that modification is warranted, i.e., that a change of circumstances sufficient to justify the decrease has occurred. Armstrong v. ^Rayford, supra. When a parent voluntarily terminates his or her employment, the child support obligation may be reduced if the obligor parent can show that (1) a change in circumstances has occurred, (2) the voluntary change is reasonable and justified, (8) the parent is in good faith and not attempting to avoid his or her alimentary obligation and (4) the action will not deprive the child of continued reasonable financial support. Strange v. Strange, supra; Wyatt v. Wyatt, supra.

Voluntary underemployment is a question of good faith of the obligor spouse. Strange v. Strange, supra. If a parent is voluntarily unemployed or underemployed, the child support obligation shall be calculated on the basis of his or her income earning potential, unless the party is physically or mentally incapacitated or is caring for a child of the parties under the age of five. See La. R.S. 9:315.11(A); Strange v. Strange, supra. Whether the obligor parent is in good faith in reducing his or her income is a factual determination which will not be disturbed on appeal absent an abuse of the trial court’s wide discretion. Strange v. Strange, supra; Wyatt' v. Wyatt, supra; Armstrong v. Rayford, supra. Further, the trial court has wide discretion in resolving credibility issues. Id.

Mr. Durfee’s brief consists of a one-page Statement of the Case wherein he sets forth the procedural history and facts of this ease, followed directly by a one-page Conclusion which describes his counsel’s attempts to settle this case prior to appeal. Mr. Durfee does not set forth any argument pertaining to Ms. Durfee’s assertion that he should have been required to show an involuntary material change of circumstances.

| sWhile Mr. Durfee’s current wife did quit her job thereby decreasing the total income of the Durfee family, Mr. Durfee did not carry his burden of proof in showing that his wife’s decision to quit her job was involuntary or that it was voluntary, but still warranted. The record indicates that Mr. Durfee’s wife decided to quit her job in order to stay home with the four children living in the Durfee household, all four of whom were five years old or older at the time of trial. Accordingly, Mr. Durfee’s wife’s monthly income earning potential must be included in Mr. Durfee’s current household income. The judgment of the trial court holding that Mr. Durfee proved a material change in circumstances due to his current wife’s decision to quit her job, thus warranting a modification of the child support award, is, therefore, reversed and we must remand the matter for recalculation of child support.

In Ms. Durfee’s second assignment of error, she argues that, if this court determines that she is required to pay child support for her two children, she should be able to deduct the amount of the monthly health insurance premiums she pays for the two minor children from her total child support obligation. Mr. Durfee concedes that Ms. Durfee should be permitted to offset her total child support obligation by the amount of monthly health insurance premiums she pays for the two minor children. We agree.

After the basic child support obligation is determined, the total child support obligation is computed by adding to it the net child care costs, | ¡¡health insurance premiums, extraordinary medical expenses and other extraordinary expenses. See La. R.S. 9:315.8(A); Earle v. Earle, 43,925 (La.App. 2d Cir.12/3/08) 998 So.2d 828, writ denied, 09-0117 (La.2/13/09), 999 So.2d 1151. The parent without legal custody or the nondomiciliary party owes the custodial or domiciliary party for his or her share of the total child support obligation “minus any court-ordered direct payments made on behalf of the child for work-related net child care costs, health insurance premiums, extraordinary medical expenses, or extraordinary expenses provided as adjustments to the schedule.” See La. R.S. 9:315.8(D); Earle v. Earle, supra. Accordingly, the non-domiciliary party is entitled to a credit offsetting the amount of child support owed by the cost of health insurance premiums incurred on behalf of the minor children. Norred v. Noired, 591 So.2d 396 (La.App. 2d Cir. 1992), writ denied, 592 So.2d 1319 (La. 1992). Accordingly, we find that the trial court erred in failing to award Ms. Durfee this credit.

CONCLUSION

For the foregoing reasons, the judgment of the trial court is reversed and the matter is remanded for further proceedings to be conducted in accordance with this opinion. Costs of this appeal are assessed to Scott Richard Durfee.

REVERSED AND REMANDED.

APPLICATION FOR REHEARING

Before STEWART, CARAWAY, PEATROSS, DREW & LOLLEY, JJ.

| xRehearing denied.

CARAWAY, J., would grant rehearing.

      . Mr. Durfee's children with Ms. Durfee were ages five and seven at the time of trial and his current wife's children were ages 9 and 13 at the time of trial.