author: WILLIAMS, J.

text:
    Mickey McGuinness QUINLAN, Mackey Sugar Quinlan and Charles Brian Sugar, Plaintiff-2nd Appellant v. Melissa SUGAR-GOLD, Defendant-1st Appellant
    No. 51,191-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 5, 2017

      THE PESNELL LAW FIRM, By: Billy R. Pesnell, Counsel for 1st Appellant.
    McMICHAEL,' MEDLIN, D’ANNA, WEDGEWORTH & LAFARGUE, LLC, By: James C. McMiehael, Jr., Anna M. Brown Priestley, Counsel for 2nd Appellant.
    Before BROWN, WILLIAMS, and PITMAN, JJ.
   WILLIAMS, J.

liThe plaintiffs, Mickey McGuinness Quinlan,.. Mackey Sugar Quinlan and Charles Brian Sugar, appeal the district court’s ruling which granted a special.motion to strike filed by the defendant, Melissa Sugar Gold. The defendant has appealed the district court’s denial of attorney fees and costs. For the following reasons, we affirm in part, reverse in part and remand with instructions.

FACTS

The parties are the members of the same family. The plaintiff, Charles Sugar, is the biological son of Alan Sugar (“Alan Sugar”); the defendant, Melissa Sugar Gold, is Alan’s adopted daughter. The plaintiff, Mackey Quinlan, is the niece of Charles and Melissa; Mickey Quinlan is Mackey Quinlan’s husband.

On January 17, 2013, the defendant authored an article entitled “Elder Abuse and Betrayal of Trust” (“the Elder Abuse article”). The article was published on fic-tiontoolbox.blogspot.com. In the Elder Abuse article, the defendant referenced another article that had been published on sugaroilcompany.blogspot.com, and stated, “I don’t know who authored it. It’s not hard to deduce that someone in my family (one of us who love[s] my dad and are [sic] not just waiting for him to die so we can swoop in for our inheritance), must have penned it.” Additionally, in the Elder Abuse article, the defendant commended the author of another article that, had been b,published on sugaroilcompany.blog-spot.com, by stating, “[T]o whomever wrote it, [g]ood for you. Those greedy, phony vultures needed to be exposed.” The remainder of the “Elder Abuse” article provided:

WTF[] happens to families when they think they might inherit some money? I’ve always heard stories about it, but never believed I would witness such greed directed at my own father and mother.
⅜ ⅜ ⅜
The past two months have been chock-full of family illnesses, hospitalizations and ■ most disturbingly, a cáse of what my immediate family and I believe to be more than just plain ole greed, something more sinister. Indeed, [e]lder abuse. Sadly, my father, who is in his mid-eighties and currently in the hospital and very ill, is the intended victim.
*• * *
Mickey, Mackey, Chucky: “Here [sign] ■ this paper. It’s just a simple for[m] for your taxes.”
You’ll be dead'by the time,your wife realized we just had you sign over your entire estate and wealth to us. Oops. Alan Sugar didn’t build that empire by being an idiot. He figured it out, and he ain’t dead. I don’t envy the wrath that awaits anyone, devious enough to trick an old man into signing away the rights to his company, home and livelihood. If the courts don’t get you—God sure will.
⅝ ⅜ *1»

Thereafter, in the article, the defendant proceeded to define . the term “elder abuse” and stated, “The disturbing part of that definition and of what Chuck Sugar, Dr. Mackey Sugar Quinlan and Mickey Quinlan did to my |3father is ‘Trust.’ Betrayal of an elder man’s trust, is vile.” Further, the defendant posed the following question, “Do any of you have any experience with elder abuse?,” and proceeded to recount a story she had been told by an unnamed man whose father had allegedly been the victim of elder abuse.

On January 21, 2014, the plaintiffs filed a petition for injunctive relief and for damages, alleging that the defendant “had written and published false and defamatory statements” about them in the Elder Abuse article and two similar articles that had been published on two different websites, sugaroilcompany.blogspot.com and sugarfamilysecrets.blogspot.com. The plaintiffs sought to recover damages for defamation and/or intentional infliction of emotional distress. The plaintiffs also sought an injunction and a court order requiring the defendant to remove the alleged defamatory publications from the Internet.

On March 7, 2014, the plaintiffs filed an amended petition, which included the following specific allegations:

3.
On January 17, 2013, an article entitled “Elder Abuse and Betrayal of Trust” was published by Defendant on fiction-toolbox.blogspot.com. This article alleges that Defendant’s father, Alan Sugar (hereinafter “Alan”) is the victim of elder abuse at the hands of all three Petitioners.
* * *
The article continued to allege that the Petitioners preyed on Alan to gain control of his . company and compared their alleged actions to those of a con artist.
4.
The internet domain sugaroilcompa-ny.blogspot.com leads to a website titled “Sugar Family Saga, Sugar Oil Co. & The Sugar Family: Secrets, Lies & Betrayals |4Revealed.” This entire website appears to have been created for the sole purpose of defaming Petitioners.
5.
On or about January '20, 2013, an article titled “How Mickey Quinlan Took Control of Sugar Oil Company: How Was Alan Sugar Coerced Into Signing Away Everything He Owned” was published by Defendant on sugaroilcompany.blog-spot.com. This article again alleges that the Petitioners participated in elder abuse towards Alan Sugar, stating “[a]buse of wealthy elderly parents by .their greedy adult children and other •relatives is,as common as sin” and linking to an article about the alleged elder abuse of Brooke Astor. The article continues to allege that Petitioners were untrustworthy, lied to Alan to coerce him into doing something he did not want to do, and led a “crusade to take all of Alan’s money and property.” The article concludes with a promise to reveal other stories of “betrayals of family” on the website.
6.
The internet domain sugarfamilyse-crets.blogspot.com leads to a website titled “Sugar & Shit: Unbelievable Saga of Christian Counselor Son and Ungrateful Grandchildren Taking Money from Elder Relative.” Again, this entire website appears to have been created for the sole purpose of defaming Petitioners. There are links on the website to pages titled “Sugar Sham,” “Chuck Sugar,” “Elder Abuse,” and “Doctors w/ Morals.” '
7.
On or about July 31, 2013, an article titled “The unSugar Family-The Greedy Bunch” was. posted on sugarfamilyse-crets.blogspot.com. The first sentence reads: “Thank you Greedy Bunch: Chuck Sugar, Dr. Mackey Sugar Quin-lan, Dr. Scott Sugar, Mickey Quinlan (new title president of Sugar Oil).” This article alleges that Petitioner Charles Sugar is a hypocrite, a drug addict, and a homosexual. These allegations are particularly injurious to Charles Sugar because he makes his living as a Licensed Professional Counselor by practicing “Christian Counseling,” wherein he counsels patients from a Christian world-view.
JÉ-
On the Sugar <& Shit website, the “About” page contains three paragraphs that allege Petitioner Charles Sugar is a homosexual thief and imply [sic] that Petitioner Mackey Sugar Quinlan is an immoral, incompetent physician.

On May 7, 2014, the defendant filed peremptory exceptions of no cause of action and prescription. In the pleadings, the defendant admitted that she had authored and published the Elder Abuse article on fictiontoolbox.blogspot.com. However, she “categorically den[ied]” writing and/or publishing the articles on sugaroilcompa-ny.blogspot.com and sugarfamilyse-crets.blogspot.com.

The defendant also filed a special motion to strike the plaintiffs’ petition, pursuant to La. C.C.P. art. 971. She argued as follows: she published the Elder Abuse article on her blog “in the exercise of her right to free speech in connection with an issue of public interest, namely elder abuse”; in the article, she expressly invited the public to comment and offer their opinions regarding the issue of elder abuse; the statements made in the article were her own personal opinions and are protected by the First Amendment to the United States Constitution; and the defendants failed to allege fault (actual malice or negligence) sufficient to create a triable issue. The defendant also requested an award of reasonable attorney fees and costs.

Further, in support of the motion to strike, the defendant submitted an affidavit, in which she attested as follows:

She is the author of the article entitled “Elder Abuse and Betrayal of Trust” which was published' on fictiontool-box.blogspot.com;
She did not author or publish the articles on sugarfamilysecrets.blogspot.com and | fisugaroilcompany.blogspot.com and she has no knowledge of who did so; On August 25, 2012, Alan Sugar went to his office and discovered that the locks had been changed without any prior notice to him and that his office furniture had been placed in the parking garage; Around the same time, Alan Sugar asked to see the “production runs” for Sugar Oil Company and was denied the information;
In September 2012, Alan Sugar was 82 years old and his health/hospitalization insurance benefits were terminated without notice to him;
On January 1, 2018, an article entitled “Sugar Family Saga: How Mickey Quin-lan Took Control of Sugar Oil Company” was published on sugaroileompany.blog-spot.com; she read the article and was “angered and deeply saddened” by it; She believes the content of the article published on sugaroilcompany.blog-spot.com was “substantially true” and used it as “the occasion and background” for the Elder Abuse article she authored and published; and
In June 2013, Barbara Sugar (the defendant’s mother) and Kyle C. McGinnis (Alan Sugar’s long-time attorney) were removed from their positions as managers of Sugar Management, leaving plaintiff, Charles Sugar, as manager and plaintiff, Mickey Quinlan, as president.

The defendant also introduced into evidence an affidavit executed by Alan Sugar in which he attested as follows:

He was the sole owner of his business entities for 50 years;
He never intended to share ownership, possession or control of his company with anyone;
He never made any of his children “partners in [his] business”;
|7He was “completely unaware” that he executed documents that replaced him as the owner of his company;
He signed any paperwork given to him by his “son and [his] lawyer” and he “blindly trusted them”;
He never intended to give up ownership of his company;
The plaintiffs were aware that, upon his death, he wanted one-half of his estate to go to his wife and the other one-half to be divided among his children;
He was “shocked, upset and lost when [he] discovered that [he] had apparently signed documents, giving up control of, and ownership of [his] business”;
He would not have signed the documents if his attorney had explained the documents and the consequences of signing them;
He did not learn that he had signed over ownership of his company until after the death of his son, Miles Sugar;
He never knowingly gave up ownership of his company;
The plaintiffs, Charles Sugar and Mickey Quinlan, provide him with a “monthly allowance” which has caused him “intense shame, hurt, embarrassment and humiliation;
Miles Sugar, Charles Sugar, Mickey Quinlan and Kyle McGuinness (his former attorney) “tricked” him;
He was “shocked and outraged” by the plaintiffs’ response to the defendant’s special motion to strike;
The plaintiffs’ contention that he voluntarily signed his company over to them is “an outright false statement”;
|sHe never expressed to anyone that he did not feel competent to continue to run his company; he intended to do so until his death;
His relationship with his son, Charles Brian Sugar, “ended the day he took my company from [him]”;
He does not have a loving and close relationship with his granddaughter, Mackey Quinlan;
Charles Sugar took control of his company “in a tricky manner”;
He has discussed his “feelings of being cheated out of ownership of [his] company” with his wife and members of his immediate family; and
He informed the plaintiff, Charles Sugar, that the instant lawsuit was “hurting” him and asked him to “please drop the suit because of the stress it [was] causing [him].”

The trial court granted the defendant’s special motion to strike and dismissed the plaintiffs’ petition with prejudice. The court stated:

In order to succeed under [La. C.C.P. art.] 971, “the movant must make a pri-ma facie showing that the matter arises from an act in furtherance of his or her right to free speech or the right of petition and in relation to a public issue.” The Court finds the defendant has made her prima facie case. “In order to defeat the motion to strike, the plaintiff is then required to demonstrate a probability of success on his or her own claim.” The plaintiffs have failed to meet their burden in this case.
* * *

(Internal citations omitted). The court denied the defendant’s request for attorney ' fees and ordered the parties to bear their own costs. The court also overruled the peremptory exceptions of no cause of action and prescription.

The defendant filed a motion for new trial, arguing that an award of attorney fees and costs was mandated under La. C.C.P. art. 971(B). The trial court denied the motion, stating:

There are reasons why I did what I did insofar as the judgment that was rendered previously to | sresolve this case to save familial relationships, if that can be accomplished, which I doubt. But the Court did what it did in order to save time, effort, heartache, [and] monetary-loss on behalf of both parties[.]
Both parties appeal.

DISCUSSION

The plaintiffs contend the district court erred in granting the defendant’s special motion to strike. They argue that La. C.C.P. art. 971 does not apply to this case because the statements contained in the defendant blog were not made “in connection with a public issue.” According to the plaintiffs, the defendant .mentioned and defined “elder abuse” in her article. However, they maintain that the true intention of the defendant’s article was to injure their personal and professional reputations by describing specific actions allegedly taken by them and mentioning them by name.

The granting of a special motion to strike presents a question of law. Questions of law are reviewed de novo, with the judgment rendered on, the record, without deference to the legal conclusions of the tribunals below. Jones v. Delta Fuel Co., Inc., 48,885 (La.App. 2d Cir. 5/28/14), 141 So.3d 352; In re Succession of Carroll, 46,327 (La.App. 2d Cir. 7/20/11), 72 So.3d 384, writ not cons., 2011-1844 (La. 11/4/11), 75 So.3d 912.

La. C.C.P. art. 971 provides, in pertinent part:

A. (1) A cause of action against a person arising from any act of that person in furtherance of the personas right .of petition or free speech under the United States 'or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
1 iq(2) In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
* sfc *
F. As used in this Article, the following terms shall have the meanings ascribed to them below, unless the context clearly indicates otherwise:
(1) “Act in furtherance' of a person’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue” includes but is not limited to:
* * *
' (c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest,
* * *

Article 971 was enacted by the legislature as a procedural device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for. redress of grievances. Jones, supra; Johnson v. KTBS, Inc., 39,022 (La.App. 2d Cir. 11/23/04), 889 So.2d 329, writ denied, 2004-3192 (La. 3/11/05), 896 So.2d 68. In a special motion to strike, the moving party must first satisfy the burden of proving the. cause of action | narises from an act in the exercise of free speech regarding a public issue. If the mover satisfies this initial burden of proof, then the burden shifts to the plaintiff to show a probability of success on his claim. Jones, supra; Johnson, ‘ supra. If more than one claim is’alleged in the petition, the court should examine the probability of success of each claim individually, and if the plaintiff can demonstrate a probability of success on any claim, then the motion must fail. Yount v. Handshoe, 14-919 (La. App. 5th Cir. 5/28/15), 171 So.3d 381.

Thus, in the instant case, the defendant had the initial burden of proving that the article she admittedly authored and published arose from an act in the exercise of her right of free speech regarding a public issue. Speech on matters of public concern has been described as speech “relating to any matter of political, social, or other concern to the community.” Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). Whether speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the entire record. Id.; Kennedy v. Sheriff of E. Baton Rouge, 2005-1418 (La. 7/10/06), 935 So.2d 669; Hakim v. O’Donnell, 49,140 (La.App. 2d Cir. 6/25/14), 144 So.3d 1179.

After reviewing the record and relevant jurisprudence, we find that the' trial court correctly concluded that the plaintiffs’ claims were subject to the provisions of La. C.C.P. art. 971. As stated above, the language set forth in Article 971 dictates that the special motion to strike applies to all causes of action against a person “arising from any act of that person in further-■anee of the person’s right of petition or free speech ... in connection with a public issue[ij” The article defines such actions as including “any written or oral [ ^statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.” La. C.C.P. art. 971(F)(1)(c). We find that the defendant’s article, when read as a whole, pertained to an issue of public concern, ie., elder abuse. In the article, the defendant shared'the definition of elder abuse (as1 defined by Wikipedia); and added a testimonial from an unnamed source. She then went on to express her opinion that her father was the “intended victim” of elder abuse. Accordingly,' the trial court did not err in finding that the plaintiffs’ claims were subject to the special motion to strike.

Because the defendant has met her burden under Article 971, the burden’ now shifts to the plaintiffs. In ordér to overcome the motion to strike, the plaintiffs are required to demonstrate a probability of success on their claims of defamation and. intentional infliction of emotional distress. Defamation

In Louisiana, =the law regarding defamation is.well settled. It reads as follows: •

Defamation is a tort which involves the invasion of a person’s reputation and good name. Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So.2d 129; Fitzgerald v. Tucker, 1998-2313 [ (La. 6/29/99) ] (La. 6/26/99), 737 So.2d 706. The following elements are necessary to establish a claim for defamation; (1) a false or defamatory -statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence ór greater) on the part of the publisher; and (4) resulting injury. Kennedy, supra; Cos tello, supra; Hakim, supra. Thus, in order to prevail on a defamation claim, a plaintiff must prove “that the defendant, with actual malice or other fault, published a false statement with defamatory-words which caused the plaintiff damages.” Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 559, quoting Sassone v. Elder, 626 So.2d 345, 360 (La. 1993). If even one of the required elements of the tort is lacking, the cause of action fails) 13 Costello, supra; Douglas v. Thomas, 31,470 (La.App. 2d Cir. 2/24/99), 728 So.2d 560, writ denied, 1999-0835 (La. 5/14/99), 741 So.2d 661. Defamatory words are, by definition, words which tend to harm the reputation of another so as to lower the person in the estimation of the community, to deter others from associating or dealing with the person, or otherwise expose a person to contempt or ridicule. Costello, supra; Fitzgerald, supra. Words which convey an element of personal disgrace, dishonesty, or disrepute are defamatory. Id. The question of whether a communication is capable of a particular meaning and whether that meaning is defamatory is ultimately a legal question for the court. Costello, supra; Sassone, supra. The question is answered by determining whether a listener could have reasonably understood the communication, taken in context, to have been intended in a defamatory sense. Id.
Defamatory words have traditionally been divided into two categories: those that are defamatory per se and those that are susceptible of a defamatory meaning. Costello, supra. Words 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, are considered defamatory per se. 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. Id.
When the words at issue are not defamatory per se, a plaintiff must prove, in addition to defamatory meaning and publication, the elements of falsity, malice (or fault) and injury. Costello, supra; Kosmitis v. Bailey, 28,585 (La. App. 2d Cir. 12/20/96), 685 So.2d 1177. The injury resulting from a defamatory statement may include nonpecuniary or general damages such as injury to reputation, personal humiliation, embarrassment and mental anguish, even when no special damage, such as loss of income, is claimed. Id. Regardless of the type of injury asserted, however, a plaintiff must present competent evidence of the injuries suffered. Id. The plaintiff must also demonstrate | uthat the defamatory statements were a substantial factor in causing the harm. Id.
Finally, even when a plaintiff makes a prima facie showing of the essential elements of defamation, recovery may be precluded if the defendant shows that the statement was true, or that it was protected by a privilege, absolute or qualified. Costello, supra; Arledge v. Hendricks, 30,588 (LaApp. 2d Cir. 6/26/98), 715 So.2d 135.

The threshold issue in a defamation action is whether the words complained of are defamatory, i.e., capable of a defamatory meaning. As stated above, in the plaintiffs’ petition for damages, they alleged that the article the defendant wrote and published on fictiontoolbox.blog-spot.com—in which she stated “what [the plaintiffs] did to my father is ‘Trust’ Betrayal of an elder man’s trust”—was defamatory. The plaintiffs also alleged that statements the defendant published indicated that they had “preyed on Alan to gain control of his company and compared their actions to those of a con artist.”

As stated above, the defendant admitted that she authored and published the article entitled “Elder Abuse and Betrayal of Trust” on fictiontoolbox.blogspot.com. In that article, the defendant stated that her father was the “intended victim” of elder abuse, declared that the plaintiffs betrayed her father’s trust, described the plaintiffs’ actions as “vile” and referred to the plaintiffs as “greedy, phony vultures.”

Our review of the defendant’s Elder Abuse article and the relevant jurisprudence reveals that the words about which the plaintiffs take issue are not actionable in defamation under Louisiana law. The complained-of words are pure statements of the defendant’s opinion, which is based solely on her subjective view. See Bussie v. Lowenthal, 535 So.2d 378 (La. 1988); 15Cooksey v. Stewart, 41,336 (La.App. 2d Cir. 8/23/06), 938 So.2d 1206. That is because falsity is an indispensable element of any defamation claim, and a purely subjective statement can be neither true nor false. Id.

Further, in the article, the defendant suggested that the plaintiffs duped her father into signing over his “entire estate.” These words are “capable of a defamatory meaning” because they could, “by their very nature, tend to injure [the plaintiffs’] personal or professional reputation.” However, the defendant submitted an affidavit in which she expressed her belief that the statements were true. Additionally, she submitted the affidavit executed by Alan Sugar, in which he attested that the plaintiffs “tricked” him into signing over the ownership of his company to them. In response to the defendant’s motion to strike, the plaintiffs failed to introduce any evidence to show that the statements she made in the article were false. Accordingly, we find that the plaintiffs failed to meet their burden of proving the probability of success on their defamation claim. This argument lacks merit.

Intentional Infliction of Emotional Distress

In order to recover damages for intentional infliction of emotional distress, a plaintiff must establish that: (1) the conduct of the defendant was extreme and outrageous, (2) the emotional distress suffered by the plaintiff was severe, and (3) the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his or her conduct. White v. Monsanto Co., 585 So.2d 1205 (La. 1991); Henderson v. Bailey Bark Materials, 47,946 (La.App. 2d Cir. 4/10/13), 116 So.3d 30. Conduct is considered extreme and outrageous when it goes “beyond all possible bounds of decency” and is “regarded as 11fiatrocious and utterly intolerable in a civilized community.” White, supra, at 1209; Henderson, supra. Liability does not extend to mere insults, indignities, threats, annoyances, petty oppressions or other trivialities. White, supra; Henderson, supra.

In response to the defendant’s motion to strike, the plaintiffs did not present any evidence to establish that the defendant engaged in “extreme and outrageous conduct” or that they suffered severe emotional distress. The words published by the defendant, while perhaps insulting, do not rise to the level of conduct “so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency.” Consequently, we find that the trial court did not err in granting the defendant’s special motion to strike with regard to the plaintiffs’ claim for intentional infliction of emotional distress.

The plaintiffs also contend the district court erred in dismissing their entire petition with prejudice. They argue that only a portion of the allegations in their, petition, the article on fictiontoolbox.blog-spot.com, was at issue in the special motion to strike. According to the plaintiffs, the remaining claims, regarding the articles published on the two other websites, sugaroilcompany.blogspot.com and sugar-familysecrets.blogspot.com, remain viable.

Our review of the record reveals that the defendant admitted that she authored and published the Elder Abuse article of fictiontoolbox.blogs.com. However, she denied writing and publishing the other articles. The plaintiffs failed to. present any evidence to prove that the defendant authored and published the articles on sugar-: oilcompany.blogspot.com and sugarfamily-' secrets.blogspot.com. Consequently, this record is devoid of any |^evidence that the plaintiffs are able to establish a probability of success on the claims with regard to the articles that were published on sugaroil-company.blogspot.com and sugarfamilyse-crets.blogspot.com. Therefore, we see no error in the trial court’s dismissal of the plaintiffs’claims in their entirety.

The Defendant’s Appeal

As stated above, the defendant contends the trial court erred in denying her request for attorney fees and costs. She argues that LaV C.C.P. art. 971 mandates an award of attorney fees and costs.

In. any action subject to La. C.C.P. art. 971(A), a prevailing party on a special motion to strike shall.be awarded reasonable attorney fees and costs. La., C.C.P. art. 971(B); Succession of Carroll, supra. As a general rule, attorney fees are not allowed in Louisiana unless they are authorized by statute or provided for by contract. State, Dept. of Transp. & Dev. v. Wagner, 2010-0050 (La. 5/28/10), 38 So.3d 240; Carroll Insulation & Window Co., Inc. v. Biomax Spray Foam Insulation, LLC, 50,112 (La.App. 2d Cir. 11/18/15), 180 So.3d 518. Statutes providing for penalties and/or attorney fees are penal in nature and must be strictly construed. See Langley v. Petro Star Corp. of La., 2001-0198 (La. 6/29/01), 792 So.2d 721; Jones v. Johnson, 45,847 (La.App. 2d Cir. 12/15/10), 56 So.3d 1016. An award of attorney fees is a type of penalty imposed, not to make the injured party whole, but rather to discourage a particular activity on the part of the opposing party. Langley, supra; Sharbono v. Steve Lang & Son Loggers, 1997-0110 (La. 7/1/97), 696 So.2d 1382.

As previously stated, La. C.C.P. art. 971(B) mandates an award of reasonable attorney fees and costs. Delta Chem. Corp. v. Lynch, 2007-0431 18(La.App. 4th Cir. 2/27/08), 979 So.2d 579, 588, writ denied, 2008-0683 (La. 5/30/08), 983 So.2d 898 and 2008-0761 (La. 5/30/08), 983 So.2d 904; see also, Succession of Carroll, supra; Ahearn v. City of Alexandria, 2015-1014 (La.App. 3d Cir. 5/4/16), 191 So.3d 689. Prior to its 2004 amendment, Article 971 provided that on a special motion to strike, a “prevailing defendant shall be entitled to recover” reasonable attorney fees and costs. The 2004 amendment to the article changed the law to provide that “a prevailing- party on a special- motion to strike shall be awarded reasonable attorney fees and costs.” (Emphasis added).

We find that the defendant, as the prevailing party in this matter, is entitled to an award of reasonable attorney fees and costs. Consequently, the trial court erred in denying the defendant’s request for attorney fees and costs. Accordingly, we reverse the trial court’s denial of attorney fees and remand this matter to the trial court with instructions to award the defendant reasonable attorney fees and costs.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s ruling which granted the defendant’s special motion to strike. We reverse the trial court’s ruling denying attorney fees and we remand this matter with instructions to the trial court to award the defendant reasonable attorney fees and costs. Costs of this appeal are assessed to the plaintiffs, Mickey McGuinness Quinlan, Mackey Sugar Quinlan and Charles Brian Sugar.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

      . Alan Sugar was the owner of Sugar Management, L.L.C. and Sugar Oil Company, L.L.C. The offices of both entities are located in Shreveport, Louisiana.

      . Melissa Sugar Gold is the biological daughter of Alan Sugar’s wife, Barbara Palmer Sugar. Alan adopted Melissa, by notarial act, on February 13, 2013.

      . WTF is an initialism for "what the freak” or "what the f*ck.”

      .The defendant provided the definition from Wikipedia, an online Encyclopedia, .stating: According to Wiki: Elder Abuse, it is: Elder abuse (also called "elder mistreatment,” "senior abuse,” abuse in later life, "abuse of elder adults," "abuse of elder women,” and “abiise of elder men”) is a single, or repeated act, or lack of appropriate action, occurring within any relationship where there is an expectation of trust, which causes harm or distress to an elder person.

      . In Section 2 of Acts 1999, No. 734, Section 1, during which the legislature enacted La. C.C.P. art. 971, the legislature stated its.intent in enacting the provision as follows:
      Section 2. The legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid ¡exercise of the constitutional rights of freedom of speech and petition for redress 'of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, it is the intention of the- legislature that the Article .enacted pursuant to this Act shall be construed broadly.-


source: Caselaw Access Project

author: DREW, J.

license: Public Domain

text:
    Elliott B. STONECIPHER, Plaintiff-Appellant v. CADDO PARISH, Louisiana, The Caddo Parish Commission, Caddo Parish Commissioners, Douglas Dominick, Lyndon B. Johnson, Michael Williams, Matthew Linn, Jerald Bowman, Lindora Baker, Stormy Gage-Watts, John Escude, Michael Thibodeaux, David Cox, Jim Smith, Kenneth Epperson, Sr., Caddo Parish Administrator Woodrow Wilson, Jr., and Caddo Parish Director of Finance and Human Resources Erica Bryant, Defendants-Appellees
    No. 51,148-CA
    Court of Appeal of Louisiana, Second Circuit.
    April 7, 2017.
    Rehearing Denied May 11, 2017

      THE PESNELL LAW FIRM By: Billy R. Pesnell, J. Whitney Pesnell
    Counsel for Appellant, Elliott B. Stone-cipher
    KEAN MILLER, LLP By: Michael D. Lowe, Scott L. Zimmer

      Counsel for Appellees Douglas Dominick, Lyndon B. Johnson, Michael Williams, Matthew Linn, Jerald Bowman, Lindora Baker, Stormy Gage-Watts, John Escude, Michael Thibodeaux, David Cox, Jim Smith, Kenneth Epperson, Sr.; Woodrow Wilson, Jr., and Erica Bryant
    BLANCHARD, WALKER, O’QUIN & ROBERTS By: M. Thomas Arceneaux, Jerry Edwards
    Counsel for Appellees Caddo Parish, Louisiana, and the Caddo Parish Commission, Caddo Parish
    Before WILLIAMS, DREW, and MOORE, JJ.
   DREW, J.

I,Elliot B. Stonecipher filed a petition for declaratory and injunctive relief against Caddo Parish (“Parish”), the Caddo Parish Commission (“Commission”), individual Caddo Parish Commissioners (“Commissioners”), Caddo Parish Administrator Woodrow Wilson, and Caddo Parish Director of Finance and Human Resources Erica Bryant.

In his petition, Stonecipher challenged the legality of Parish ordinances relating to participation by the Commissioners in the Caddo Parish Public Employees Retirement System (“CPERS”), their participation in the Parish’s group medical benefits and life insurance plans, salary increases to the Commissioners that were tied to cost-of-living increases to Parish employees, mileage reimbursements to the Commissioners, and the policy of providing each Commissioner with an annual travel allowance of $15,000.

After considering various exceptions raised by the defendants, the trial court maintained Stonecipher’s claim for declaratory relief against the Parish, but dismissed his claim for injunctive relief against the Parish as well as all his claims against the Commission, the Commissioners, Wilson, and Bryant.

Stonecipher has appealed. We reverse the judgment in part, affirm it in part, and remand.

FACTS

Stonecipher alleged in his petition that he is a citizen, property owner, taxpayer, and registered voter of Shreveport and Caddo Parish and is therefore directly affected by the operations, activities, and conduct of the defendants. He contended that the Commission violated the Louisiana 12Constitution, state law, and the Cad-do Parish Home Rule Charter when it passed ordinances in 2000 and 2005 that created CPERS and declared that the Commissioners were unclassified parish employees who were eligible to participate in CPERS. More specifically, he argued that the Commissioners were ineligible to receive these benefits because they were part-time public servants.

Stonecipher also alleged that Section 3-05(D) of the Home Rule Charter, which prohibits a Commissioner from receiving any additional compensation, benefit, or privilege because of his office, was violated by ordinances passed in 2012 and 2013 which made the commissioners and their dependents eligible to participate in the group medical benefits and life insurance plans offered by the Parish to its classified and appointed employees. According to Stonecipher, Section 3-05(D) was also allegedly violated by the Parish’s policy of providing each Commissioner with a yearly travel allowance of up to $15,000.

Stonecipher further alleged in his petition that a 1993 ordinance providing automatic increases to each Commissioner’s salary based on cost-of-living increases granted to Parish employees on an annual basis violated not only Part (D) of Section 3-05, but also Part (B), which governed how the Commission can change its compensation. Finally, Stonecipher contended that a 1985 ordinance allowing mileage reimbursement for Commissioners was prohibited by Section 3-05(D), as well as by 3-05(C), which prohibits the payment of compensation for mileage for road inspection or travel to and from the courthouse or any similar purpose.

Stonecipher sought a judgment:

[¾* Declaring that the Commissioners have always been part-time employees of the Parish and ineligible to participate in or receive any pension or retirement benefits from CPERS; '
• Declaring that the Commissioners were not entitled to receive any compensation, remuneration, or benefits ' other than their salary proper, and, accordingly, not entitled to receive life and health insurance coverage from the Parish, a travel allowance of $15,000 per year from the Parish, the same cost-of-living increases in their compensation or salaries which are granted to other employees of the Parish on an annual basis, and . the mileage reimbursement in question;
• Enjoining Wilson and Bryant from approving the payment of any additional pension or retirement benefits-through CPERS or the Parish to any of the Commissioners;
• Enjoining Wilson and Bryant from , approving or allowing the , transfer, payment, or provision of any further or additional life and health insurance coverage, subsidies, or benefits, travel allowances, cost-of-living in- ■ creases in wages' or salaries, and mileage reimbursements to any of the Commissioners;
• Enjoining CPERS and the Parish . from paying any additional pension or retirement benefits or credits to any of the Commissioners;
• Enjoining the Parish from transferring, paying, or providing any further or additional life and health insurance, subsidies, or benefits, travel allowances, cost-of-living increases in wages or salaries, and mileage reimbursements to any of the Commissioners;
• Enjoining the Commissioners from accepting, acquiring, or receiving any further or additional pension or retirement benefits or credits from CPERS or the Parish;
• Enjoining the Commissioners from accepting, acquiring, or receiving any further or additional life and health insurance coverage, subsidies, or benefits, travel allowances, cost-of-living increases in wages or salaries, and mileage reimbursements by, from, or through the Parish;
• Directing the Commissioners, Wilson, and Bryant to pay all of the pension and retirement benefits which each Commissioner has received through CPERS' or the Parish; and
• Directing the Commissioners to return all of the compensation, remuneration, and benefits which each Commissioner has received over and above their salaries from life and health insurance benefits from the Parish, travel allowances from the Parish, cost-of-living increases in their compensation or salaries equal to the cost-of-living increases-granted to other Parish employees on an annual basis, and the mileage reimbursements in question.

_JjThe Commission filed the exception of lack of procedural capacity, and the Commission and the Parish filed the exception of no right of action. They conceded Stone-cipher had standing to seek declaratory relief against the Parish only to test the validity of the ordinances, but argued that the court should dismiss all claims against the Commission and the claims for injunc-tive relief against the Parish. The Commissioners, along with Bryant and Wilson, filed the exceptions of no cause of action and no right of action.

The trial court granted the Commission’s exception of lack of procedural capacity., The court concluded that while the Commission is the legislative branch and governing authority of the Parish under Section 2.02 of the Home Rule Charter, it is not mi juris or juridically independent of the Parish. The court added that the Commission is neither an entity to which the law attributes personality nor a juridical person with the procedural capacity to sue or be sued. ...

The Commission and Parish’s exception of no right of action was sustained because the court regarded Stonecipher’s interest in the lawsuit as insufficient to seek injunc-tive relief. The court concluded that the allegations in Stonecipher’s petition did not sufficiently prove that the actions of these two defendants have or would with certainty increase his tax burden or otherwise unjustly affect him or his property. Although the court recognized that proof of an increased, tax burden is not the only way for a taxpaying citizen to have standing to restrain a public body from allegedly illegal action, Stonecipher did not allege a personal stake in the legality of the ordinances at issue.

|fiThe court also sustained the exception of no right of action filed by the Parish and the Commission regarding the demand to collect sums that may be owed' to the Parish. The court noted that under Section 6-06 of the Home Rule Charter, the right to seek repayment belongs to the Parish. For the same reason, the court sustained the exception of no right of action filed by Bryant, Wilson, and the Commissioners.

Finally, the court sustained the exception of no cause of action filed by the Commissioners on the ground that they took all these contested actions in their official capacities and as the result of ordinances passed by the Commission, even if the ordinances and polices are subsequently declared unconstitutional. The court sustained Bryant and Wilson’s exception of no cause of action because Stonecipher conceded that he was not asserting a cause of action against them in connection with the passage' and adoption of the ordinances at issue.

Stonecipher applied for a supervisory writ with this court. He also later filed a motion for devolutive appeal. This court noted that the judgment had been designated as a final and appealable judgment under La. C.C.P. art. 1915(B), and that Stonecipher’s notice of intent to seek writs was timely as a motion for appeal. Accordingly, this court granted the writ for perfection as an appeal.

On appeal, Stonecipher argued that the trial court erred in © sustaining the Commission’s. exception of lack of procedural capacity; (ii) sustaining the Parish and Commission’s exception of no right of action and dismissing his claims for declaratory relief against the Commission and his claims for injunctive relief against the Parish and the Commission; (iii) sustaining the Parish and Commission’s exception of no cause of action lfiand/or- no right of action and dismissing his claims for restitution or return of the funds that were allegedly illegally paid; (iv) -sustaining the Commissioner, Bryant, and Wilson’s exception of no cause of action and dismissing the claims, against them; and (v) sustaining the exception of no right of action by the Commissioners, Bryant, and Wilson, and dismissing his claims- for restitution or return of funds that were allegedly illegally paid.

DISCUSSION

The Commission as a defendant

The Commission contends that not only does the Commission lack procedural capacity, but also the Parish is the real party in interest and is the entity against which Stonecipher is seeking relief, which makes the Commission an unnecessary defendant and leads to a waste of resources for the Commission to remain in the case.

La. C.C.P. art. 1880 provides, in part:

When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. In a proceeding which involves the validity of a municipal ordinance or franchise, such municipality shall be made a party, and shall be entitled to be heard.

Lack of procedural capacity is a dilatory exception which tests a party’s legal capacity to bring an action or to have one brought against it. Dejoie v. Medley, 41,333 (La.App. 2 Cir. 12/20/06), 945 So.2d 968. An entity must qualify as a juridical person to have the capacity to be sued. Id.

In Roberts v. Sewerage & Water Bd. of New Orleans, 92-2048 (La. 3/21/94), 634 So.2d 341, the supreme court adopted a functional approach for determining whether a political subdivision is a separate and distinct juridical person. Dejoie, supra. The supreme court stated:

|7The important determination with respect to the juridical status or legal capacity of an entity is not its creator, nor its size, shape, or label. Rather the determination that must be made in each particular case is whether the entity can appropriately be regarded as an additional and separate government unit for the particular purpose at issue. In the absence of positive law to the contrary, a local government unit may be deemed to be a juridical person separate and distinct from other government entities, when the organic law grants it the legal capacity to function independently and not just as the agency or division of another governmental entity.

Roberts, 634 So.2d at 346-7.

The Commission concedes that the Home Rule Charter is silent about the Commission’s capacity to sue or be sued. Section 2-02 of the Home Rule Charter states:

The plan of government provided by this Home Rule Charter for Caddo Parish shall be known as the “commission-administrator” form of government. It shall consist of an elected commission which shall be called the Caddo Parish Commission and shall constitute the legislative branch of the parish government, and a parish administrator who shall be the chief executive officer and head of the executive branch of the parish government.

Regarding the general powers of the Commission, Section 2-04 of the Home Rule Charter states:

Except as otherwise provided by this Charter, the parish shall continue to have all the powers, rights, privileges, immunities and authority heretofore possessed by Caddo Parish under the laws of the state. The parish government shall have and exercise such other powers, rights, privileges, immunities, authority and functions not inconsistent with this Charter as may be conferred on or granted to a local governmental subdivision by the constitution and general laws of the state, and more specifically, the parish government shall have and is hereby granted the right and authority to exercise any power and perform any function necessary, requisite or proper for the management of its affairs, not denied by this Charter, or by general law, and which is not inconsistent with the constitution.

Section 2-07 of the Home Rule Charter defines “parish government” as meaning “all governmental departments, agencies or functions provided 18under this Charter or other applicable law for Caddo Parish and all such governmental departments, agencies or functions shall be under the jurisdiction of the Caddo Parish Commission.”

In Heck v. Lafourche Parish Council, 2002-2044 (La.App. 1 Cir. 11/14/03), 860 So.2d 595, unit denied, 2004-0067 (La. 3/19/04), 869 So.2d 837, the appellate court disagreed with the argument that the La-fourche Parish Council was not a juridical entity against which a judgment could be rendered. The court noted that under the Lafourche Parish Home Rule Charter, the Council was the governing authority of Lafourche Parish, and it was authorized to enter into contracts affecting that Parish. Therefore, it was a juridical entity for the purposes of being sued for the breach of a contract it was authorized to confect.

In an earlier case, the Third Circuit concluded that the Lafayette City Council lacked the procedural capacity to sue or be sued because it was not an additional and separate government unit with the power to sue on its own behalf as it was a part of the greater juridical entity known as the City of Lafayette. Even though the Lafayette Home Rule Charter was silent on the question of whether the City Council could sue or be sued, the court noted that the Charter, which granted broad powers to the Council, restricted its legal capacity to exercise those powers by establishing it as the legislative branch. City Council of City of Lafayette v. Bowen, 94-584 (La.App. 3 Cir. 11/2/94), 649 So.2d 611, writ denied, 94-2940 (La. 1/27/95), 650 So.2d 244. The court went on to state that merely because the City Council was treated as a separate entity for the purposes of defending several lawsuits did not establish it as a juridical person.

|9We observe that there have been prior cases where the Caddo Parish Commission was named as a defendant but did not raise the exception of lack of procedural capacity. See Romero v. Caddo Parish Comm’n, 48,434 (La.App. 2 Cir. 11/27/13), 129 So.3d 807, writ denied, 2013-3006 (La. 2/28/14), 134 So.3d 1180, and Chesapeake Operating, Inc. v. City of Shreveport, 48,608 (La. 1/29/14), 132 So.3d 537, writ denied, 2014-440 (La. 6/20/14), 148 So.3d 176.

Stonecipher points out that Louisiana courts have held that police juries have the right to sue and be sued. In Police Jury of La Salle Parish v. Police Jury of Catahoula Parish, 145 La. 1053, 83 So. 250 (1917), the supreme court equated a police jury to a parish board or commission exercising public power and administering public functions. After noting the precursor to today’s La. R.S. 33:1236(17), which concerns the powers of parish governing authorities and gives police juries and other parish governing authorities the power to sue for reimbursement for the cost of repairs to the roads and levees, the supreme court stated that as far as .it knew, no general authority to sue and be sued has ever, in specific terms, been conferred on the police juries. Nevertheless, the supreme court added that counties are classified as quasi-corporations or involuntary political civil divisions that are recognized as having the privilege of appearing in court. The supreme court continued:

In this state, such powers as are usually exercised by counties have always been vested in the police juries, as the representatives of the parishes. They, by virtue of the authority conferred upon them and not directly upon the parishes, enact the ordinances required in the administration of the local government, levy and collect the parish taxes, and contract for the erection of the parish courthouses, jails, and other buildings, the ownership of which is vested in the parishes, and for that reason, no doubt, and the further reason that (save as has been Instated) the right to sue and be sued is not specifically vested in either the. parishes or the police juries, that right has generally been exercised by the police juries, for the parishes, though, now and then, cases will be found in which the parishes sue and are sued in their own names.

Police Jury of La Salle Parish, 145 La. at 1063, 83 So. at 253.

Of particular interest to this court regarding whether the parish or a parish commission should be the party to á suit, the supreme court stated:

It would appear to us simpler and more logical if this suit had been brought in the name of the parish in behalf of which the claim is made and against the parish which is the real debtor; but the jurisprudence of a century sanctions the manner in which it has been brought, and we find no sufficient reason for holding it to be unauthorized. The police jury, according' to that jurisprudence, being competent to bring the- suit, and it having been brought in its- name, it is presumed, in the absence of a challenge, under oath, of the authority of the counsel by whom it was brought, that he was properly authorized to that effect.

Police Jury of La Salle Parish, 145 La. at 1064, 83 So. at 254.

We note that while in his prayer for relief Stonecipher seeks a judgment against the Commission, he never specifically states the relief that he seeks against it. Although it was redundant for Stoneci-pher to name both the Parish and the Commission as defendants in this matter, that is not the issue before, us. Rather, the issue -is whether the Commission has a lack of procedural capacity. We conclude that the Commission possesses procedural capacity. Accordingly, the trial court erred in granting the exception of lack of procedural capacity and dismissing the Commission.

Right of action to seek injunctive relief

The exception of no cause of action and the exception of no right of action both present questions of law. Therefore, a court conducts a de novo review "of the trial court’s action on these exceptions. Waggoner v. America First Ins., 42,863 (La.App. 2 Cir. 1/16/08), 975 So.2d 110. Our supreme 11court has explained the difference between the exceptions of no cause of action and no right of action:

Although these two exceptions are often confused or improperly combined with the same exception, the peremptory exceptions of no right of action and no cause of action áre separate and distinct. This court has recognized that one of the primary differences between the exception of no right of action and no cause of action lies in the fact that the focus in an exception of no right of action is on whether the particular plaintiff has a right to bring the suit, while the focus in' an exception of no cause of action is on whether the law provides a remedy against the particular defendant. The function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition. The exception of no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.
In contrast, an exception of no cause of action questions whether the law extends a remedy against the defendant to anyone under the factual allegations of the petition. The exception is triable on the face of the petition and, to determine the issues raised by the exception, each well-pleaded fact in the petition must be accepted as true. In reviewing a district court’s ruling sustaining an exception of no cause of action, appellate courts conduct a de novo review because the exception raises a question of law and the district court’s decision is based only on the sufficiency of the petition. An exception of no cause of action should be granted only when it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. If the petition states a cause of action on any ground or portion of the demand, the exception should generally be overruled. Every reasonable interpretation must be accorded the language used in the petition in favor of maintaining its sufficiency and affording the plaintiff the opportunity of presenting evidence at trial.

Citations omitted. Badeaux v. Southwest Computer Bureau, Inc., 2005-0612 at pp. 6-7 (La. 3/17/06), 929 So.2d 1211, 1216-7.

A portion of the injunctive relief sought by Stonecipher involved restraining Bryant, Wilson, and the Parish from providing additional allegedly illegal benefits to the Commissioners, and the Commissioner^ from accepting those benefits. La. C.C.P. art. 681 requires that except as otherwise provided bylaw, a person bringing an action have, a real and actual interest which he asserts. Granting the exception of no right of action, the trial court concluded that Stonecipher’s interest in the lawsuit was insufficient to seek injuner five relief., In reviewing this ruling, it is critical to consider how the supreme court has examined the.issue of standing in suits against public bodies for injunctive relief.

In League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441 (La. 1980), the supreme court upheld the dismissal of a writ, of mandamus requiring the defendants to carry out certain government functions, namely the raising of taxes. In concluding that the plaintiffs had no right of action, the supreme court noted the plaintiffs were not seeking to restrain an increase in taxes, but were seeking to enforce a statute and .compel an increase in taxes.

In Louisiana Associated Gen’l Contractors, Inc. v. Calcasieu Parish School Bd., 586 So.2d 1354 (La. 1991), individual contractors and a contractors’ association sued for declaratory relief and to enjoin the school board from requiring a prevailing wage provision in its public work contracts. Discussing whether the plaintiffs had standing to bring the suit, the supreme court stated:

Our jurisprudence recognizes the right of a taxpayer to enjoin unlawful action by a public body. Under Louisiana law, a taxpayer may resort to judicial authority to restrain public servants from transcending their lawful powers or violating their legal duties in any unauthorized mode which would increase the burden of taxation or otherwise unjustly affect the taxpayer or his property. Stewart v. Stanley, 199 La. 146, 5 So.2d 531 (1941). The. fact that the taxpayer’s interest may be small and insusceptible of accurate determination is not sufficient to deprive him of the right. Id.
I isln League of Women Voters of New Orleans v. City of New Orleans, 381 So.2d 441 (La.1980), we refined our previous standard and held a taxpayer will not be allowed to compel the performance of a public duty by mandamus absent a showing of some special interest which is separate and distinct from the . interest of the public at large.We specifically stated, “Without a showing of . some special interest in the performance sought of a public board, officer or .commission which is separate and distinct from the interest of the public at large, plaintiff will not be permitted to proceed.” Id. at 447.
The requirement that a plaintiff in a mandamus proceeding demonstrate a “special interest” in the action was imposed to insure a fair presentation and development of the issues by truly adverse parties. Without a showing of such a personal and special interest in mandamus cases, we feared interference by the judiciary would surpass the authority allocated by the tripartite system. In League of Women Voters we were careful to point out that unlike a citizen attempting to compel the performance of a public duty, a citizen attempting to restrain unlawful action by a public entity is not required to demonstrate a special or particular interest distinct from that of the public at large. Consequently, taxpayer plaintiffs seeking to restrain action by a public body are afforded a right of action upon a mere showing of an interest, however small and indeterminable. See Woodard v. Reily, 244 La. 337, 152 So.2d 41 (1963); Stewart v. Stanley, supra.
The plaintiffs herein seek declaratory and injunctive relief. They clearly are attempting to restrain action by the Cal-casieu Parish School Board. Consequently, in order to have standing they are not required to demonstrate a personal or special interest which is separate and distinct from the interest of the general public. They must merely assert a real and actual interest in the action before we will entertain their suit.

Id., 586 So.2d at 1357-8.

The supreme court went on to note that the plaintiffs’ allegations that they were residents and taxpayers of Calcasieu Parish were not enough to sufficiently prove that the school board’s action would, with certainty, increase their tax burden. However, as further noted by the court, proof of an increased tax burden was not the only way for a taxpaying citizen to seek judicial relief to restrain a public body from allegedly unlawful action. The 114individual contractors had an interest in restraining the school board’s action because they were bidding on the contracts. The contractors’ association also had a sufficient interest to bring the suit because not only did it desire to maintain the integrity of the public bid process, but the individual contractors were its members, and the association could lose membership dues if its members were deprived of profits from public works projects.

In Ralph v. City of New Orleans, 2006-0153 (La. 5/5/06), 928 So.2d 537, the plaintiffs sought a declaratory judgment that the New Orleans City Council acted without authority in enacting a Domestic Partnership Registry, and in extending health insurance and other benefits to registered domestic partners of city employees. The plaintiffs also sought to enjoin the enforcement of the registry policy and related ordinances. The trial court granted the exceptions of no cause of action and no right of action. The court of appeal reversed the granting of the exception of no cause of action, but affirmed the granting of the exception of no right of action.

Finding a right of action, the supreme court concluded that the plaintiffs had standing to challenge the extension of benefits because they demonstrated an interest, regardless of how small and indeterminable. The plaintiffs had alleged that New Orleans was spending tax money to pay benefits for at least one person who had qualified as a domestic partner. The supreme court considered that spending tax money, no matter how minuscule its effect on the city’s budget, clearly affected the public fisc. Therefore, when a plaintiff attempts to restrain action by a public body that affects the public fisc, that plaintiff has' an interest, however small and indeterminable, which is sufficient to afford him a right of action. In addition, the supreme court found that the plaintiffs had standing to 11fichallenge the registry ordinance because the ordinance was intertwined with the extension of benefits.

In Retired State Employees Ass’n v. State, 2013-0499 (La. 6/28/13), 119 So.3d 568, the supreme court upheld the finding that the plaintiffs had standing to seek a declaratory judgment and permanent injunction against the implementation of a change in retirement provisions by the legislature. The plaintiffs alleged that as Louisiana taxpayers, they would be harmed by the change in retirement provisions that increased state expenditures and were passed in contravention of the Louisiana Constitution. The trial court denied the exceptions of no right of action and no cause of action, and the matter proceeded to trial. The defendants challenged on appeal the district court’s finding that the plaintiffs had standing to seek the declaratory relief. They asserted that the Louisiana Associated Gen’l Contractors case required the plaintiffs to demonstrate a provable impact on their tax burden and to show that the disputed legislation increased their individual tax burden with certainty. After noting that the plaintiffs produced evidence at trial that the legislation was predicted to have an actuarial cost resulting in an increase in Louisiana’s expenditures, the supreme court cited Ralph v. City of New Orleans, supra, for the position that the spending of tax money, no matter how miniscule the effect would be on the state budget, clearly affected the public fisc. Therefore, according to the supreme court, those plaintiffs had set forth a sufficient real and actual interest in the cause of action.

In Hudson v. City of Bossier, 36,213 (La.App. 2 Cir. 8/14/02), 823 So.2d 1085, writ denied, 2002-2383 (La. 11/27/02), 831 So.2d 279, the plaintiffs filed suit to challenge the legality of an agreement between Bossier City and riverboat casinos to not levy a per-admission boarding tax. The |! fitrial court granted the exception of -no right of action, reasoning that the plaintiffs had no standing to challenge the legality of the agreement because they had not shown that the agreement resulted in an increased tax burden. This court reversed, concluding that the plaintiffs had at least a small and indeterminable interest in seeing that their elected representatives obey the law and not enter into illegal contracts in matters relating to the public fisc. This court added that the illegal surrender of the statutory right to tax riverboats could not be considered a benefit to the public fisc.

Stonecipher. alleged in the first paragraph of his petition that he is a resident and domiciliary of Caddo Parish, resides at a home and lot located in Caddo Parish, pays ad-valorem taxes to Caddo Parish on that lot and home, and votes in elections held by Caddo Parish. In the next paragraph, he further alleged that as a citizen, property owner, taxpayer, and registered voter of both Shreveport and Caddo Parish, he is directly affected by the operations, activities, and conduct of the defendants.

The expenditure of tax revenues to pay for the benefits extended to the Commissioners would clearly affect the public fisc. Stonecipher, as a taxpayer in Caddo Parish, has an interest, however small and indeterminable, to restrain action that is allegedly illegal by the Parish. Moreover, as a taxpayer and voter in Caddo Parish, Stonecipher has an interest in seeing that his elected representatives obey the law and not extend illegal benefits to the Commissioners. Therefore, Stonecipher had standing to seek an injunction stopping the payment and receipt of the benefits at issue.

Mandatory injunction

In addition to seeking a prohibitory injunction, Stonecipher also sought a mandatory injunction involving the recovery of the allegedly illegal |17benefits that' had already been received. Stonecipher argued that he has standing to assert a claim directing the Commission, Commissioners, Bryant, and Wilson to reimburse the. Parish. He contended that under La. R.S. 14:134, each Commissioner, Bryant and Wilson had a duty not to misappropriate or wrongfully take Parish funds. The Commissioners, Bryant, and Wilson counter that Stonecipher has no right of action to obtain a judgment ordering them to pay any money to the Commission or the Parish.

■ It is clear under the rationale from ■League of Women Voters of New Orleans, supra, and subsequent cases that a taxpayer such as Stonecipher will not be allowed to compel the performance of a public duty by mandamus absent a showing of some special interest which is separate and distinct from the interest of the public at large. Stonecipher has not demonstrated that he has the requisite special interest to seek the recovery of the funds.

Stonecipher contends that League of Women Voters of New Orleans is inap-posite because he is not seeking mandamus action, but is actually asserting a mandatory injunction. The Parish and Commission argue that while a writ of mandamus should not be confused with a mandatory injunction, the reasoning of League of Women Voters applies to a mandatory injunction that seeks to compel the performance of a public duty. We agree with the Parish and the Commission. Sto-necipher’s mandatory injunction is similar to a writ of mandamus in the. sense- that he is seeking to compel performance by the defendants, thereby requiring him to show the required interest that is separate and distinct from the interest of the general public.

| isStonecipher also contends that Section 6-06(A) of the Home Rule Chárter provides him with a basis to .seek the recovery of the funds. It states, in part:

Any authorization of payment or incurring of obligation in violation of the provisions of this Charter shall be void and any payment so made illegal; such action shall be'cause'for removal of any official, officer or employee who knowingly authorized or made such payment or incurred such obligation or who caused such payment to be authorized or made or obligation to be incurred. Such persons shall also be liable to the parish government for any amount so paid.

We disagree with Stonecipher. Nowhere in Section 6-06(A) does it provide for the right of a private citizen or taxpayer to step into the shoes of the Parish and recover illegal payments. In addition,.Stone-cipher has not shown that the Parish has granted him authority to file suit on its behalf.

Accordingly, the trial court did not err in sustaining the exception of no right of action as to Stonecipher’s plea for a mandatory injunction.

Commissioners as defendants

The trial court sustained the Commissioners’ exception of no cause of action because it concluded that all the actions they took were in their official capacities and were the result of ordinances passed by the .Commission.

Stonecipher contends that the actions taken by the Commissioners in passing the ordinances and the actions taken pursuant to them were not official acts but were ultra vires as they were done in violation of the law. He also contends that some of the actions that the Commissioners are being sued about have nothing to do with passing legislation and do not concern actions that were part of the formal legislative process or taken in the course and scope of their official duties.

liaThe Commissioners argue that Stone-cipher is challenging actions taken by them in their official capacities rather than in their individual capacities. Therefore, according to the Commissioners, the real party in interest is the Parish, and by naming the individual commissioners, Sto-necipher is merely restating his claims against the Parish: They further argue that although Stonecipher claims the actions of the Commissioners could not have been in their official capacities because the actions were illegal, he has not identified any actions taken by an individual commissioner that were outside the course and scope of his duties as a commissioner, nor did he allege that any commissioner' acted in bad faith or with malice.

The relief sought by Stonecipher in his prohibitory injunction against the Commissioners did not involve actions taken by them in their legislative roles as Commissioners. Instead, it- involved their roles as recipients of the allegedly illegal benefits. Nevertheless, they were still in their official capacities. as • Commissioners when they began receiving the benefits at issue. Accordingly, Stonecipher has no cause of action against the individual commissioners in this matter.

This conclusion does not impact the reach of any prohibitive injunctive relief that Stonecipher may obtain against the Commission and the Parish as the Commissioners would obviously no longer receive benefits that the Commission or Parish would be enjoined from paying. We agree with the Commissioners that Stone-cipher is merely restating his claims against the Commission and the Parish against the Cpmmissioners. It is unnecessary for him to seek prohibitory injunctive relief against the Commissioners when the prohibitory injunctive relief sought against the | «^Commission and the Parish also involves the curtailment of payment of allegedly illegal benefits and compensation. ■

Finally, this result does not'restrain the ability of the Commission or the Parish to recover money under Section 6-06 of the Home Rule Charter from the Commissioners-in the event that Stonecipher is successful in his claim for declaratory relief that any or all of the benefits and compensation were illegal.

For the foregoing reasons, the trial court did not err in granting the Commissioners’ exception of no cause of actiori.

Bryant and Wilson

The trial court sustained Bryant and Wilson’s exception of no cause of action because Stonecipher conceded that he was not asserting a cause of action against them in connection with the passage and adoption of the ordinances at issue. '

Stonecipher argued that he had the right to assert claims against Bryant and Wilson because their actions in facilitating the allegedly illegal benefits to the Commissioners make them liable under Section 6-06 for the return of the funds at issue. He asserts that he is not making any claims against them based on their participation in the passage or- adoption of the ordinances, but rather their participation in developing the budget and approving the transfer of Parish funds to provide the allegedly illegal benefits. He argues this makes Bryant and Wilson liable for the return, reimbursement, and/or repayment of the funds at issue.

This court has already concluded that the trial court did not err in finding that Stonecipher had no right of action to seek the return or repayment of the funds in question. The only remaining claim that Bryant |81and Wilson could arguably remain subject to would be the prohibitory injunction claim, which is properly directed at the Parish or the Commission. Wilson serves at the pleasure of the Commission, and Bryant serves at the pleasure of Wilson. Neither one has the power to enact or to modify ordinances. Therefore, the trial court did not err in maintaining the exception of no cause of action and dismissing the claims against Bryant and Wilson.

CONCLUSION

We reverse the judgment insofar as it dismissed the claims for prohibitory in-junctive relief against the Parish, and the claims for declaratory judgment and prohibitory injunctive relief against the Commission. In all other respects, the judgment is affirmed.

Plaintiff' and the individual defendants are to bear their own costs; costs of Caddo Parish Commission and Caddo Parish are not assessed, La. R.S. 13:4521.

JUDGMENT REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

APPLICATION FOR REHEARING

Before BROWN, WILLIAMS, DREW, MOORE and STONE, JJ

Reheating denied.

BROWN, J., would grant rehearing.