author: GUIDRY, J. McClendon, J., McDONALD, J.

text:
    SUCCESSION OF Lawrence David ACHEÉ, Jr.
    NUMBER 2016 CA 0716
    Court of Appeal of Louisiana, First Circuit.
    AUGUST 16, 2017
    Rehearing Denied August 30, 2017

      Richard A. Richardson, Anna K. Wong, Covington, LA, Counsel for Plaintiff/.3rd party Defendant/Appellee Truitt Dain Miller
    Brenda Braud, Hammond, LA, Counsel for Defendant/Appellant Gladys Acheé

      BEFORE: WHIPPLE, C.J., GUIDRY, McDonald, McClendon, and HOLDRIDGE, JJ.
   GUIDRY, J.

pin this succession proceeding, Gladys Achee, appeals from a trial court judgment dismissing her petition to annul her deceased husband’s probated testament. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Lawrence Acheé, ( Jr. (decedent) was married to Gladys Acheé on August 1, 1987. Decedent and Gladys separated in 2009 and lived separate and apart until the decedent’s death on November 3, 2014. At the time of his. death, decedent had no children and was survived by his estranged wife, Gladys.

Thereafter, decedent’s nephew, Truitt Dain Miller (Truitt), filed a petition, for probate of olographic testament and for confirmation of executor on July 28, 2015. In conjunction therewith, Truitt filed a testament written in the decedent’s handwriting as well as a typed testament. Both testaments were executed by the decedent on September 4, 2013; however, the typed testament was not signed by a notary until Séptember 28, 2013. Because the typed testament was presumptively invalid, Truitt only requested that the handwritten testament be probated by the court.' In addition to the testaments, Truitt also filed affidavits for probate of the olographic testament executed by himself, Marie Antoinette Achee Miller, and Jon Marie Acheé Souquet; and an agreement to independent administration of succession—Designation of Truitt to serve as dative independent executor and verification.

On July 30, 2015, the trial court signed an order, finding that the handwritten testament was a valid olographic testament, drawn.in accordance with La. C.C. art. 1575, and in accordance with La. C.C.P. arts. 2883 and 2890, it need not be further proved. The court also ordered that the olographic testament be filed,-.admitted to probate, and executed according to law and further ordered that Truitt be confirmed as dative independent executor.

| ¡/Thereafter, on October 15, 2015, Don Lewis Achee, decedent’s brother, and Gladys .filed a petition to annul the probated testament, naming Truitt, Marie and Jon as defendants. The petition asserted that the purported olographic testament did not qualify as a testament because it did not contain any language that could be interpreted as a bequest to any party and therefore should be annulled. The petition also asserted that the typed instrument was not in valid form because the notary signed the instrument twenty-four days after the decedent signed it and therefore, it also should be annulled.

■ Following a hearing on the petition to annul, the trial court signed a judgment denying the motion to annul the olographic testament. Gladys now appeals from the trial court’s judgment;

DISCUSSION

There are two forms of testaments: olographic and notarial. La. C.C. art. 1574. An olographic testament is one entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575.

In addition to the form requirements, an olographic testament must contain testamentary intent, which is to say, it must, by its own language, show on its face that it. purports to dispose of the property of the testator on his death. In re Succession of Cannon, 14-0059, p. 5 (La. App. 1st Cir. 3/25/15), 166 So.3d 1097, 1101-1102, writ denied, 15-0816 (La. 6/5/15), 171 So.3d 948; see also Succession of Shows, 158 So.2d 293, 295 (La. App. 1st Cir. 1963), aff'd, 246 La. 652, 166 So.2d 261 (1964). A valid olographic testament must do .more than express or explain the wishes or. desires of. a decedent; the document must show intent to convey the decedent’s property by the instrument itself. In re Succession of Cannon, 14-0059 at p. 5, 166 So.3d at 1102. A paper is not established as a Uperson’s will merely by proving that he intended to make a disposition of his property similar to or even identically the same as that contained in the paper. It must satisfactorily appear that he intended the very paper to be his will. In re Succession of Cannon, 14-0059 at p. 5, 166 So.3d at 1102. Simply stated, not every instrument one writes, signs, and dates is á last will and testament; the author must intend for. the instrument to serve that purpose, and that -intent must be evident on the face of the document. In re Succession of Cannon, 14-0059 at p. 6, 166 So.3d at 1102. Extrinsic or parol evidence cannot be used to establish testamentary intent, In re Successions of Lain, 49,261, p. 9 (La. App. 2nd Cir. 8/20/14), 147 So.3d 1204, 1210.

The plaintiff in an action to annul a probated testament has the burden of proving the invalidity thereof, unless the action was instituted within three months of the date the testament was probated. In the latter event, the defendants have the burden of proving the authenticity of the testament, and its compliance with all of the formal requirements of the law. La. C.C.P. art. 2932(A); see also Succession of Wadsworth, 152 La. 131, 92 So. 760 (1922). In reviewing a trial court’s factual findings when ruling on a petition to annul a testament, an appellate court applies the manifest error standard of review. See In re Succession of Theriot, 08-1233, p. 5 (La. App. 1st Cir. 12/23/08), 4 So.3d 878, 882.

In the instant case, because Gladys filed her petition to annul the probated olo-graphic testament within three months of the date that the testament was probated, Truitt bore the burden of establishing the ■ authenticity of the testament and its compliance with all of the formal requirements of law. The parties do not dispute that the handwritten document at issue complies with the statutory requirements for an olographic testament, namely that it is entirely written, dated, and signed in the handwriting of the testator. See La. C.C. art. 1575. As such, the tissue before the trial court was whether the document, on its face, evidences testamentary intent.

The handwritten document at issue provides:

Sept /4/13
to whom it may concern about the estates of Lawrence David Acheé, Sr, & Vergie ola Martin Acheé
I want to leave whatever is passed on to Lawrence David Acheé Jr. to truitt Dain Miller
I want to leave ¿11 of my firearms to ■ truitt Dain Miller
I want to leave all of my. knife collection to truitt Dain Miller
I want to leave all Chevrolet, ford, and international trucks to truitt Dain Miller
I want to leave all tools, welders, torches, grinders, weedeaters, chain saws, circular saws
Lawrence D Acheé Jr.
(Larry D. Acheé)

Gladys asserts on appeal that the trial court erred' in finding that the decedent intended for. the handwritten document to be his last will and testament because it contains precatory language, does not show testamentary intent, and does not show that it is the instrument the decedent intended to be his last will and testament,

| ^Gladys -asserts that the use of “I want to leave” in the.handwritten.document is not dispositive but is precatory. Precatory expressions are words requesting or praying that a thing be done. Succession of Diaz, 617 So.2d 34, 36 (La. App. 4th Cir. 1993). The law is clear that a testator’s mere wishes and requests are viewed as precatory suggestions, which are not binding in law. Succession of Diaz, 617 So.2d at 36. However, the determination of testamentary intent does not'rest solely on the testator’s choice to use the words “would like,” “want to,” or “wish.” See In re Succession of White, 06-1002, p. 5 (La. App. 1st Cir. 5/4/07), 961 So.2d 439, 442. There is no fixed rule that the use of particular words should be interpreted as precatory suggestions rather than as dispositions of property. See In re Succession of White, 06-1002 at p. 5, 961 So.2d at 442; Succession of Diaz, 617 So.2d at 36. Rather, the entire document must be read as a whole to determine whether the expression was, intended to be merely precatory or was intended by the testator to actually dispose of the property. See In re Succession of White, 06-1002 at p. 5, 961 So.2d at 442. Succession of Diaz, 617 So.2d at 36.

The handwritten document detailed above contains five separate sentences detailing assets or property of the decedent and how the assets or property are,to be disposed. Although the decedent did not use, legal terms such as “bequest”- or “bequeath,” or- otherwise .state that the document, was a..will or testament, the language of . the document, when read as. a whole, demonstrates more than mere wishes, requests, or hopes. See In re Succession of White, 06-1002 at p. 6, 961 So.2d at 442. Furthermore, there is no indication in the language of the handwritten document that the decedent intended it to be a mere listing of assets or notes to be used by an attorney in drafting a will, see e.g. In re Succession of Rhodes, 39,364, 7pp. 4-7 (La. App. 2nd Cir. 3/23/05), 899 So.2d 658, 660-662, writs denied, 05-0936, 05-1044 (La. 6/3/05), 903 So.2d 459, 460 and Hendry v. Succession of Helms, 557 So.2d 427, 429 (La. App. 3rd Cir.), writ denied, 560 So.2d 8 (La. 1990); that it was a direction or request to a third party with discretion, see e.g. In re Succession of Plummer, 37,243, pp. 10-12 (La. App. 2nd Cir. 5/14/03), 847 So.2d 185, 190-191, writ denied, 03-1751 (La. 10/10/03), 855 So.2d 323 and Succession of Diaz, 617 So.2d at 35; or that it contained vague instructions, see e.g. In re Succession of Bernstine, 04-739, p. 6 (La. App. 3rd Cir. 12/22/04), 890 So.2d 776, 780. Rather, contrary to Gladys’ assertion on appeal, a plain and unstrained reading of the handwritten document demonstrates that the’ decedent’s use of the phrase “I want to leave” indicates his intent to dispose of his assets and property upon his death.

Furthermore, the fact, that a typewritten document was. executed later the same day as the handwritten document, and that the typewritten document was subsequently notarized weeks after its execution is irrelevant to the determination of the intent of the testator at the time he executed the handwritten document. See In re Succession of Rhodes, 39,364 at p. 3, 899 So.2d at 660 (noting that intent must exist when the instrument is executed). As previously stated, testamentary intent must be found from the document itself, and nothing on the face of the handwritten document supports the inference that the decedent contemporaneously with its execution intended to make' a more formal will. See Hendry, 557 So.2d 427, 430 (Yelverton, J., dissenting).

Finally, we find no merit in Gladys’ assertion that the handwritten document had clearly been altered, and that Truitt failed to establish what had been removed from the bottom of the handwritten document. As the proponent of the testament, Truitt was only required to establish that the handwritten document was entirely written, dated, and signed in the handwriting of the testator. La. C.C. art. 1575. |,sThe handwritten document submitted by Truitt undisputedly meets the statutory criteria for a valid olographic testament. Furthermore, Truitt submitted the affidavits of two witnesses as required by La. C.C.P. art. 2883, wherein one of the witnesses, Marie, stated that she reviewed the document beginning “To whom it may concern about the estate...” and ending with “I want to leave all tools, welders, torches, grinders weedeaters, chain saw, circular saws[.] Lawrence D. Acheé (Larry D. Acheé)” and was present and personally saw decedent write the document with his own hand. The content described in the affidavit is the same as that submitted to the court. Accordingly, while Gladys asserts that the document was altered and something unknown was written below the decedent’s signature, there is no evidence to refute the evidence offered by Truitt as to .the document’s completeness and authenticity.

Therefore, after a thorough review of the record, we find no manifest error in the trial court’s finding that the handwritten document evidences the intent of the decedent and as such, is a valid olographic testament.

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court denying Gladys Achee’s motion to annul the probated testament. All costs of this appeal are assessed to Gladys Achee.

AFFIRMED.

McDonald, J. concurs and assigns reasons.

Whipple, C.J. dissents for the reasons assigned by J, McClendon

McClendon, J dissents and assigns reasons.

Holdridge J. concurs for the reasons assigned by J. McDonald.

McClendon, J.,

dissenting.

|,1 respectfully disagree ‘with the majority’s conclusion that the handwritten document at issue is a valid olographic will. The document contains nothing ' to establish that Mr. Achee intended it as his. last will and testament. The precatory language “I want to” is used throughout in addressing specific items for disposition. When such precatory terms are utilized in a document purporting to be a will, the precatory language itself must be considered in light of the document in its entirety. See Succession of White, 06-1002 (La.App. 1 Cir. 5/4/07), 961 So.2d 439, 442. In considering the entire document, I note that the introductory paragraph addresses the estates of Mr. Achee’s parents, providing “to whom it may concern about the estates of Lawrence David Achee Sr <⅞ Virgie Ola Martin Achee.” Additionally, in subsequent paragraphs, while Mr. Achee lists some specific items that he wants to leave to Mr. Miller, there is no language disposing of the residual estate. In fact, the final provision of the document references various tools, but is incomplete in that it provides no legatee with regard to said tools. The document also lacks a revocation clause.

Of further concern are the markings below Mr. Achee’s signature in the original handwritten document. From said markings one might infer that further writings were below the signature. However, that section has been removed in the document produced to the court.

Further, we cannot ignore that the typewritten document prepared later the same day incorporated all of the substance of the handwritten document, but was more complete. In the introductory paragraph, it provided “that this document is my last will and testament” and included a revocation clause revoking all prior wills and codicils. Also, the language utilized therein was dispositive insofar as it used the term “I give” |2rather than the precatory “I want to.” Additionally, the purported notarial testament addressed Mr. Achee’s entire estate and indicated that Mr. Miller was to be a universal legatee. As such, one might cpnclude that the handwritten document was prepared as an outline or a guide for the drafting , of a notarial testament.

Under these facts, I cannot conclude that Mr. Achee intended the handwritten document as his last will and testament. Therefore, I dissent and would reverse the trial court’s judgment.

McDONALD, J.

Concurring:

|,I respectfully concur with Judge Gui-dry’s opinion for the following reasons. I agree that Truitt proved that Mr. Aehee’s handwritten will is a valid olographic testament. As to its form, the olographic testament is valid, because it is entirely written, dated, and signed by Mr. Achee, and his signature appears at the end of the testament. Under the express provisions of LSA-C.C. art. 1575(A), an “olographic testament is subject to no other requirement as to form.” I disagree with Chief Judge Whipple and Judge McClendon to the extent they think additional ■ clauses are needed.

Next, I agree that Mr. Aehee’s testamentary intent that the handwritten document dispose of his property upon his death is evident on the. face - of the document. Admittedly, the document is not artfully drafted. But, the testator’s intent controls the interpretation of his testament. LSA-C.C. art. 1611(A). A testament should be interpreted to give it effect, rather than to give it no effect. See LSA-C.C. art. 1612. The law is indulgent with documents'written without the aid of counsel and obeys the testator’s clear intention however informally conveyed. See In re Succession of White, 06-1002 (La. App. 1 Cir. 5/4/07), 961 So.2d 439, 441. Here, Mr. Achee references the estates of his parents in the first clause and, then, in the next sentence, indicates “I want‘to leave whatever is passed on to [me] to [T]ruitt Dain [M]iller[.]” Then, Mr. Achee writes three more sentences plainly showing his intent to give Truitt specific items. Although Mr. Achee’s testamentary intent is “informally conveyed,” LSA-C.C, art. 1611(A) makes it clear that his intent controls the interpretation of the document. If more than one interpretation presents itself, a document must be read to carry out the testator’s wishes, not defeat them; to support testacy, not intestacy. Succession of White, 961 So.2d at 2441. In this case, I think Truitt carried his burden of proving the olographic testament’s validity as to form as well as to Mr. Achee’s testamentary intent.

Even if the face of the handwritten document does not convince one of Mr. Achee’s testamentary intent to leave Truitt his separate property, L think Marie Miller’s testimony regarding her brother’s execution of both the handwritten and typed testaments certainly does. Notably, we are not limited to the face of the handwritten document to determine testamentary intent, because Marie testified to such at the hearing to annul the probated testament, and, as Judge Guidry points out in a footnote, Gladys did not object to the trial court’s consideration of her testimony.

Maxie clearly testified that Mr. Achee handwrote his will in' her presence. She then explained that, after he handwrote the will, one of her coworkers came to visit, that Mr. Achee told the coworker about his will, the coworker offered to take the will to her office and “type it up for [him] and spiff it up ... and -make it look nice.” In response, Mr. Achee asked “do you think I really need to do that?” After further discussion, the coworker went and 'typed the will with wording clearly showing Mr. Achee’s testamentary intent to leave his “personal property” to Truitt, returned with the will, and Mr., Achee signed it. I think Marie’s testimony regarding these events establishes Mr. Achee’s testamentary intent that the handwritten document serve as his will. I do not think Mr. Achee’s later act, allowing the coworker to type a document to “spiff up” the handwritten document, negated his earlier intent that the handwritten document serve as his will. -

Thus, I think the trial court correctly found that the handwritten document, on its face, is a valid olographic will. And, if that is not enough, Marie’s testimony, admitted without Gladys’s objection, shows Mr. Achee’s testamentary intent. Because Mr. Achee’s intent controls the interpretation of his testament, and I think it is plainly clear he wanted Truitt to have his separate property upon his death, I agree with Judge Guidry that the trial court’s judgment, denying Gladys’s motion to annul the probated testament, should be affirmed. I note, however, that the proper interpretation of the testament’s provisions will have to be determined by. the trial court.

      . Marie and Jon did not file the petition for probate and are not named as legatees in the olographic testament.

      . Gladys also asserts that the trial court erred by requesting and relying upon the testimony of a witness to determine whether the decedent intended for the handwritten document to be his last will and testament. However, we find Gladys' assignment of error in this regard to be without merit'for several reasons. First, Gladys failed to object to the introduction of the witness’s testimony at the hearing, and as such, may not complain of the inadmissibility of the evidence on appeal. See Succession of Davisson, 50,830, p. 8 (La. App. 2nd Cir. 12/22/16), 211 So.3d 597, 604, writ denied, 17-0307 (La. 4/7/17), 218 So.3d 111. Additionally, the record makes clear that the trial court, requested witness testimony for the limited purpose of "making the record clear” as to the timing of the execution of the typewritten document, which Was executed the same date as the handwritten document. The witness, although acknowledging when asked by counsel that she was present when the "handwritten ..will” was prepared by decedent, offered no testimony regarding the execution of the handwritten document and limited her testimony to the circumstances surrounding the execution of the typewritten document. Furthermore, contrary to ' Gladys' assertion on appeal, the trial court's oral ruling clearly states that "the olographic will, although it might not say everything that we would want it to say, I think it certainly exhibits-'the intent of the testator,” indicating that -the trial court properly made, its determination based on the language of the testament. Accordingly, we find no merit to Gladys’ argument that' the trial court erred in requesting witness testimony or that the trial court impermissibly relied on witness testimony, in making its factual determination regarding testamentary intent.

      . We note that the fifth sentence details property and that the decedent wants to dispose of . that property, but the legatee is not mentioned in the sentence. While this may result in an ambiguity in the testament as to this particular disposition, for which competent evidence may be submitted to resolve any ambiguity, it does not conclusively defeat-testamentary intent as to the,document as a .whole. See La. C.C. art. 161,1 (intent of the testator controls interpretation of testament).

      . In this regard, I disagree with footnote two of Judge Guidry's opinion to the extent it states that Marie '-‘offered no.testimony regarding the execution of the handwritten document and limited her testimony to the circumstances surrounding the execution of the typewritten document.”


source: Caselaw Access Project

author: McDonald, j.

license: Public Domain

text:
    Anjel LEE, Individually, and on behalf of her Minor Child, Landon Lee (Deceased) v. Dr. Michael QUINN, Dr. Kelechi N. Iheagwara, Dr. Rufus Hixon, III, Dr. Shannon Boudreaux, and Our Lady of the Lake Regional Medical Center
    2017 CA 0070
    Court of Appeal of Louisiana, First Circuit.
    SEPTEMBER 15, 2017

      Vincent J. Desalvo, Baton Rouge, Louisiana, Attorneys for Plaintiff/Appellant An-jel Lee Individually, and on behalf of her minor child, Landon Lee (Deceased)
    Douglas K. Williams, Chris D. Billings, Baton Rouge, Louisiana, Attorneys for Defendants/Appellees Our Lady of the Lake Hospital, Inc., d/b/a Our Lady of the Lake Regional Medical Center, and Dr. Shannon Boudreaux
    BEFORE: WHIPPLE, C.J., McDonald, and chutz, jj.
   McDonald, j.

12This is an appeal from a summary judgment dismissing plaintiffs claims against an emergency room physician and general hospital after the district court ruled that plaintiffs expert, a cardiologist, did not possess the requisite knowledge, skill, training, or education necessary to render an expert opinion on the standards of care or the breach of the standards of care of a general hospital or an emergency room physician. After review, we affirm.

FACTS AND PROCEDURAL HISTORY

This is a tragic case. Around 12:19 a.m. on June 13, 2012, 13-month-old Landon Lee was transported by ambulance to Our Lady of the Lake Regional Medical Center (OLOL) with complaints of respiratory distress and vomiting. He was evaluated in the emergency room, determined to have cardiac issues, and admitted to the Pediatric Intensive Care Unit. Landon’s condition deteriorated, requiring intubation and aggressive lifesaving efforts. Landon was ultimately transferred to Ochsner Medical Center in New Orleans by helicopter later that morning so that he could be put into the ECMO (Extracorporeal Membrane Oxygenation) unit. Landon was given CPR during the transfer, and also upon arrival at Ochsner Medical Center around 9:00 a.m. However, Landon was pronounced dead at 9:44 a.m. An autopsy conducted several days later determined that Landon died from cardiomegaly (an enlarged heart).

On March 17, 2015, Landon’s mother, Anjel Lee, filed suit for damages individually, and on behalf of Landon, against OLOL and Dr. Shannon Boudreaux, a pediatrician and emergency room physician who treated Landon at OLOL. Ms. Lee asserted that OLOL and Dr. Boudreaux failed to properly care for and treat |sLandon, and asked for damages resulting from his death. Ms. Lee maintained that the claim was timely submitted to a Medical Review Panel, and that the panel had rendered an opinion on November 24, 2014.

On April 15, 2015, OLOL filed an answer, admitting that Landon was transported by ambulance to OLOL, and that Landon received medical treatment and care at OLOL. OLOL generally denied the other allegations of the petition. OLOL maintained that it was a qualified healthcare provider pursuant to the Louisiana Medical Malpractice Act, La. R.S. 40:1231.1, et seq., and was entitled to immunities from liability and limitations of liability as a qualified healthcare provider. OLOL denied a breach of the standard of care and denied that any action or inaction-on its part was a legal cause or cause in fact of any injury to Landon, or was a legal cause or cause in fact of Landon’s death. OLOL pled the fault of third parties for whom it was not liable, and asked that the claims against it be- dismissed with prejudice.

On April 21, 2015, Dr. Boudreaux filed1 an answer to the petition, admitting that he provided medical care and treatment to Landon while at OLOL. Dr. Boudreaux generally denied the other allegations and raised affirmative defenses. Dr. Boudreaux maintained that he was a qualified health care provider pursuant to Louisiana law and was entitled to immunities from liability and limitations of liability as a qualified healthcare provider, and that he possessed the knowledge, training and experience necessary to provide care to Landon, and further, denied any breach of the standard of care. Further, Dr. Boudreaux denied that any action Ron his part was a legal cause or cause in fact of any injury to Landon, or was a legal cause or cause in fact of Landon’s death, and he pled the fault of third parties for whom he was not hable. Dr. Boudreaux asked for judgment in his favor dismissing the claims with prejudice.

On March 14, 2016, OLOL and Dr. Bou-dreaux filed a motion for summary judgment, asserting that Ms. Lee- had no support to establish the essential elements of her claim at trial. OLOL asserted that Ms. • Lee had no expert opinion establishing the standards of care of OLOL and Dr. Bou-dreaux or showing that OLOL and Dr. Boudreaux had breached the standards of care. OLOL and Dr. Boudreaux maintained that- there was no genuine issue of material fact, that they were entitled to summary judgment as a matter of law, and asked that the claims against them be dismissed with prejudice.

On June 20, 2106, Ms. Lee filed an opposition to the motion for summary judgment, maintaining in part that expert testimony was not necessary to establish a medical malpractice claim when a lay person could infer negligence. Further, Ms.. Lee maintained that, the affidavit of her expert, Dr. Jon Meliones, a board-certified pediatric cardiologist specializing in pediatric-critical care, established .that the defendants were negligent and breached the standards of care in several respects.

On July 6, 2016, OLOL and Dr. Bou-dreaux filed a reply in support of their motion for summary judgment, noting that the only medical malpractice cases not requiring expert testimony are thosé where-the alleged negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony, and that this was not such a case.

On July 11, 2016, the district court heard OLOL and Dr. Boudreaux’s motion for summary judgment, and afterward took the motion under advisement. Thereafter, in its reasons for judgment, the district court noted that Dr. Meliones [fiwas a board-certified pediatric cardiologist specializing in pediatric critical care. The district court noted that Dr. Boudreaux was an emergency care physician, which was recognized as its own type of medical specialty. Therefore, the district court found, Dr. Meliones was not qualified to issue an opinion as to the' standard of care and ■breach of the standard of care as to Dr. Boudreaux. The district court also found that Dr. Meliones did not have the necessary qualification to issue an opinion as to the standard of care and breach of the standard of care of a general hospital such as OLOL. Thus, the district court granted the motion to strike Dr. Meliones’s affidavit. The district court found no disputed genuine issues of material fact, found that Ms. Lee failed to establish with competent eviclence that she could satisfy her burden of proof at trial, and found that OLOL and Dr. Boudreaux were entitled to judgment as a matter of law.

Thereafter, the district court granted the motion for summary judgment filed by OLOL and Dr. Boudreaux and dismissed Ms; Lee’s claims against OLOL and Dr. Boudreaux, with prejudice, by judgment signed on September 15, 2016. Ms. Lee appeals.

ANALYSIS

A motion for summary judgment is a procedural device used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. A summary judgment is reviewed on appeal de novo, with the appellate court using the same criteria that govern the trial court’s determination of whether summary judgment is appropriate; i.e., whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. Samaha v. Rau, 2007-1726 (La. 2/26/08), 977 So.2d 880, 882-83.

The burden of proof rests with the mover.. Nevertheless,, if.the mover will not bear the burden of proof at trial ,on the issue that is before the court on the motion for summary judgment, the mover’s burden on the. motion does not require I shim- to negate, all essential elements of the adverse' party’s claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. La. C.C. P. art. 966D(1), Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can only be seen in light of the substantive law applicable to the ease. Pumphrey v. Harris, 2012-0405 (La. App. 1 Cir. 11/2/12), 111 So.3d 86, 89.

Louisiana Revised Statute 9:2794(A) provides that in a medical malpractice action, the plaintiff has the burden of proving: . ..

(1) The degree of knowledge or skill possessed or the degree of care ordinarily exercised by physicians ... licensed to practice .in the state of Louisiana and actively practicing in a similar community or locale and under similar circumstances; and where the defendant practices in a particular specialty and where the alleged acts of medical negligence raise issues, peculiar to the particular medical specialty involved, then the plaintiff has . the burden of proving the degree of care ordinarily practiced by .physicians ... within the involved medical specialty. • .

In a medical malpractice action against a physician, the plaintiff -must establish by a preponderance of the evidence the applicable standard of care, a violation of-that standard of care, and a causal cónnection’ between the alleged' negligence and the plaintiffs injuries. Likewise, in a medical malpractice action against a hospital, the plaintiff must prove that the hospital caused the injury, when it breached its duty. Expert testimony is generally required to establish the applicable standard of care and whether that standard of care was breached, except where the negligence is so obvious that's lay person can infer negligence without the guidance of expert testimony. Penn v. CarePoint Partners of Louisiana, L.L.C., 2014-1621 (La. App. 1 Cir. 7/30/15), 181 So.3d 26, 30.

|7Ms. Lee’s petition shows that the medical malpractice alleged by her is not of the type that is so egregious that malpractice would be obvious to a lay person. Thus, expert testimony was necessary to prove her claims. See Penn, 181 So.3d at 30.

In Penn, the plaintiff filed a medical malpractice suit against OLOL and other defendants. In his claims against OLOL, the plaintiff alleged injuries resulting from the negligence of OLOL, and asserted that OLOL was vicariously responsible for the negligence for its employees, including Dr. Giarruso, a hospitalist who treated plaintiff at OLOL. OLOL filed a motion for summary judgment, pointing out the absence of factual support for one or more of the plaintiff’s claims. Plaintiff filed an opposition to OLOL’s motion for summary judgment, and offered medical records and other documents, including an affidavit from Dr. Hue-Teh Shih, an expert in cardiology and clinical cardiac .electrophysiology. OLOL filed a reply memorandum arguing that Dr. Shih’s affidavit should be stricken because as a cardiologist, Dr. Shih was not qualified to offer opinions regarding the standard of care for Dr. Giarusso, a hospitalist. Penn, 181 So.3d at 28-29.

While the plaintiff established his expert was qualified in cardiology and clinical cardiac electrophysiology, the district court concluded that the expert did not have qualifications in hospital medicine. Thus, the district court found that the expert lacked the requisite knowledge of accepted standards of medical care involved in plaintiffs claim, and also lacked qualifications on the basis of training or experience to offer, an expert opinion regarding those accepted standards of care. The district court, excluded Dr. Shih’s affidavit from evidence, and the plaintiff had produced no other evidence to establish the standard of care or that the standard of care was breached. Thus, the district court granted OLOL’s motion for summary judgment, and the case against OLOL was dismissed. On appeal, this court found |sno abuse of discretion by. the district court in excluding Dr. Shih’s affidavit from -evidence, and affirmed the summary judgment dismissing the claims with prejudice. See Penn, 181 So.3d at 32.

In- the present case, the district court noted that the plaintiffs expert, Dr. Me-liones, was a board-certified pediatric cardiologist specializing in pediatric critical care; however, Dr. Boudreaux was an emergency room physician, which was a recognized medical specialty. The district court found that based on the evidence presented, Dr. Meliones did not possess the requisite knowledge, skill, training, or education necessary to render an expert opinion on the standard of care or a breach of the standard of care by Dr. Boudreaux. Further, the district court found that the evidence failed to establish that Dr. Me-liones had the necessary qualifications' to issue an opinion as to the standard of care or a breach of the standard of care of a general hospital, and as such, was not qualified to render an expert an opinion as to OLOL’s alleged negligence."

In support of their motion for summary judgment, OLOL and Dr. Boudreaux offered Dr. Boudreaux’s affidavit; the affidavit of Dr. Robert. Hart, a physician specializing in internal medicine and pediatrics who was a member of the Medical Review Panel; and the findings , of the Medical Review Panel; along with Landon Lee’s medical records from OLOL, Acadian Ambulance Service, Inc., and Ochsner Medical Center, among other items. In opposing the motion for summary judgment, Ms. Lee submitted her petition for damages, excerpts from her responses to interrogatories regarding Dr. Meliones, and the affidavit of Dr. Meliones.

Louisiana Code of Evidence article 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:
fc(l) The expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(2) The testimony is based on sufficient facts- or data;
(3) The testimony is the product of reliable principles and methods; and
(4) The expert has reliably applied the principles and methods to the facts of the case.

A district court is accorded broad discretion in determining whether expert opinion evidence should be held admissible, and its decision will not be overturned absent an abuse of discretion. Penn, 181 So.3d at 31.

The specialist is held under La. R.S. 9:2794A(1) to the degree of care ordinarily practiced by physicians within his medical specialty. Penn, 181 So.3d at 31. Dr. Boudreaux treated Landon as an emergency room physician, and OLOL is a general hospital. Dr. Meliones’s affidavit indicates that he is a board-certified pediatric cardiologist specializing in pediatric critical care performancé improvement, high frequency ventilation, and ECMO ventilation. Dr. Meliones’s affidavit' offered his expert opinion in cardiology relative to the appropriate standard of care. However, his affidavit fails to show that he has the qualifications on the basis of training or experience to offer an expert opinion regarding the accepted standards of care to be exercised by an emergency room physician, such as Dr. Boudreaux, or a general hbspital, such as OLOL. See La. R.S. 9:2794D(1)(c). Thus, his testimony would not assist the trier of fact in determining whether Dr. Boudreaux or OLOL breached their standards of care. Therefore, we cannot say that the district,court abused its discretion in ruling that Dr. Meliones’s affidavit was inadmissible. See Penn, 181 So.3d at 31-32.

Because we find that the district court did not abuse its discretion in excluding Dr. Meliones’s affidavit from evidence, and Ms. Lee produced no other evidence to establish the applicable standards of care as to OLOL and Dr. | inBoudreaux, or that the applicable standards of care were breached, we find that Ms. Lee failed to establish that she would be able to satisfy her evidentiary burden of proof at trial. We find that the district court was correct in granting summary judgment in favor of OLOL and Dr. Boudreaux.

CONCLUSION

For the foregoing reasons, the judgment of the district court granting Our Lady of the Lake Regional Medical Center and Dr. Shannon Boudreaux’s motion for summary judgment and dismissing Anjel Lee’s claims against them with prejudice is affirmed. The costs of this appeal are assessed against the plaintiff, Anjel Lee.

AFFIRMED.

      . We note that the child’s name also appears as "Landan” in the record.

      . Dr. Michael Quinn (Landon's pediatrician), along with Dr. Kelechi N. Iheagwara and Dr. Rufus Hixon, III (who both treated Landon at OLOL), were also named as defendants in the petition. However, those claims are not before us in the present appeal.

      .The Medical Review Panel found that the evidence did not support the conclusion that the defendants failed to meet the applicable standard of care as charged in the complaint. The Medical Review Panel determined that although the outcome was tragic, all of the parties involved in the case acted in an appropriate and timely manner to give Landon the best chance at surviving his "very malignant” condition.


author: COOKS, J. Savoie, J.,

text:
    Wilbert J. SAUCIER, Jr. v. Robert E. WASHINGTON, Sr., et al.
    17-556
    Court of Appeal of Louisiana, Third Circuit.
    09/20/2017

      Chris J. Roy, Jr., A Law Corporation, P.O. Box 1592, Alexandria, LA 71309-1592, (318) 487-9537, and, Mark D. Plaisance, P.O. Box 796, Thibodaux, LA 70302-0796, (985) 227-4588, Attorneys for Applicants/Defendants, Robert E. Washington, Sr., et al.
    Michael L, Glass, 1733 White Street, Alexandria, LA 71301, (318) 445-3147, Attorney for Respond,ent/Plaintiff, Wilbert J, Saucier, Jr.

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

COOKS, J.

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

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

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

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

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

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

|7In his letter, Saucier also laments the long years of struggle in the courts'for the Harrells and “benevolently” allows them access to their “foréver'unreachablé” property .to remove movable property within two weeks.-He reminds them that he often offered to buy their property but they “rudely rebuffed” him. He then reminds them they owe $1,598.57 in court costs and demands he be notified within five days of their intent to voluntarily pay or he will have to sue them again..

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

A. (1) A cause of action against a person arising from any act of that person in furtherance of the per- . . son’s right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.
(2)In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding.
B. In any action subject to Paragraph A of this Article, a prevailing party on a special motion to strike shall be awarded reasonable attorney fees and costs.
J^....
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 ⅛ connection with a public issue” includes but is not limited to:
(a)Any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.
(b) Any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official body authorized by law.
(c) Any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest.
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.
(2) “Petition” includes either a petition or a reconventional demand.
(3) “Plaintiff’ includes either a plaintiff or petitioner in a principal action or a plaintiff or petitioner in reconvention;
(4) “Defendant” includes either a defendant or respondent in a principal action or a defendant or respondent in reconvention.

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

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

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

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

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

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

LEGAL ANALYSIS

Mr. Washington’s “Anti SLAPP” Motion

The trial court’s action denying Washington relief is immediately reviewable by this court on writs as the federal court recognized we have said in the past:

In Louisiana state courts, an unsuccessful movant can obtain immediate appellate review of the trial court’s denial of the Article 971 motion through a writ of supervision under Article 2201 of the Louisiana Code of Civil Procedure. See La.Code Civ. Proc. art. 2201 (“Supervisory writs may be applied for and granted in accordance with the constitution and rules of the supreme court and other courts exercising appellate jurisdiction.”). Several Louisiana courts of appeal have immediately reviewed a trial court’s denial of an Article 971 motion pursuant to these supervisory writs. See, e.g., Darden v. Smith, 879 So.2d 390, 393 (La.App. 3d Cir.), writ denied, 887 So.2d 480 (La.2004); Baxter[ v. Scott], 847 So.2d [225,]at 230 [ (La.App. 2 Cir. 5/16/03) ]; Benson v. City of Marksville, 812 So.2d 687, 690 (La.App. 3d Cir.), writ denied, 817 So.2d 1158 (La.2002).

Henry, 566 F.3d at 170(emphasis added).

[inOur review of the trial court’s ruling on this La.Code Civ.P. art. 971 motion is de novo. Gwandiku v. State Farm Mut. Auto Ins. Co., 07-580 (La.App. 3 Cir. 10/31/07), 972 So.2d 334. Having reviewed the record submitted with the application for writ of review, we too agree with the trial court’s conclusion that Washington met his burden to prove this suit involves matters of public interest. As the trial judge remarked in his reasons for judgment, the article and blog addressed “Greed, race, class warfare,- political corruption, [and] unethical behavior by judges and lawyers...” It-is also apparent that most, if not all, of Washington’s comments in the blog, and information used by As-well in his article, all come from pleadings, court documents, and judicial decisions in matters involving Washington and the other Harrell heirs. This too, entitles him to invoke the protection of Article 971.

Saucier’s Burden of Proof to Defeat 971 Motion.

The Defendant having met his burden to prove his statements involved matters of public interest and included matters which had been presented in judicial forums, the burden now shifts to Saucier to “demonstrate a probability of success on his claim.” Henry, 566 F.3d at 170:

•Article 971 establishes a burden-shifting analysis for weeding out frivolous claims. To succeed on an Article 971 motion, the defendant must first make a prima facie showing that Article 971 covers the activity underlying the suit. That is, the defendant must “establish[ ] that a cause of action against him arises from an act by him in furtherance of the exercise of his right of petition or free ■speech under the United States or Louisiana Constitution in connection with a public issue,” Starr v. Boudreaux, 978 So.2d 384, 388-89 (La.App. 1st Cir.2007), If the defendant makes this showing, “the burden then shifts to the'plaintiff to demonstrate a probability of success on his claim.” Id. at 389.

In Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706, 715-17 (emphasis added), the Louisiana Supreme Court explained a defamation action:

|1TA cause of action for defamation arises out of a violation of Civil Code article 2315. Vicknair v. Daily States Pub. Co., 153 La. 677, 96 So. 529 (1923); Ferdinand F. Stone, 12 Louisiana Civil Law Treatise Tort Doctrine § 176(c), at 227 (1977). Defamation involves the invasion of a person’s interest in his or her ■ reputation and good name. Sassone v. Elder, 92-1856 (La. 10/18/93), 626 So.2d 345, 350 (citing W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111 (5th ed.1984)). In order to prevail in a defamation action, a plaintiff must necessarily prove four elements: (1) a false and defamatory 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. Trentecosta v. Beck, 96-2388 (La. 10/21/97), 703 So.2d 552, 559 (citing Restatement (Second) of Torts § 558 (1977)); see Cangelosi v. Schwegmann Bros. Giant Super Markets, 390 So.2d 196, 198 (La.1980) (considering falsity as a fifth and separate element). In other words, a plaintiff must prove “ ‘that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.’ ” Trentecosta, 703 So.2d at 559 (quoting Sassone, 626 So.2d at 350).
Nonetheless, not all defamatory statements are actionable. Rather, .many statements are protected by the First Amendment’s guarantee of freedom of speech. For example, “ ‘a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.’” Romero v. Thomson, 94-1105 (La. 1/17/95), 648 So.2d 866, 870 (quoting Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). Also, “[sjpeech on matters of public concern enjoys enhanced constitutional protection.” Romero, 648 So.2d at 869.
“[Ejven if an opinion gives rise to false factual inferences, the defendant will be liable only if the statement was made with ‘knowing or reckless falsity.’” Id. & n, 6 (footnote omitted) (quoting Mashburn[ v. Collin], 355 So.2d [879,]at 885 [ (La. 1977) ]). Moreover, “the factual.inference created by the statement [of opinion] must be ascertainable by a reasonable person with some degree of certainty.” Id. at 378. “Otherwise, juries would be asked to engage in guessing-games about possi- , ble uncomplimentary inferences that can be drawn from statements of opinion, and the First Amendment protections afforded in this area would become worthless” Id. (footnote omitted); see Restatement (Second) of Torts § 566 cmt.(c)(4). In sum, an expression of opinion is actionable only if it implies the existence of underlying facts ascertainable by a reasonable person with some degree of certainty, and the implied factual assertions are false, defamatory, made with actual malice, and concern another.

| ^Additionally, our courts, state and federal, have long held:

A plaintiff contesting an Article 971 motion must show a probability that she will be able to establish'all of the elements of her tort claim. Baxter, 847 So.2d at 233.... “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.” La. Code. Civ. Proc. art 971(A)(2); see also Baxter, 847 So.2d at 232.
“To establish a , probability of prevailing on. his claim, a plaintiff must'state and substantiate a legally sufficient claim. This is done through á prima facie showing of facts sufficient to sustain a favorable judgment.” Baxter, 847 So.2d at 231-32. This requires more than that which iá necessary to survive a normal motion to dismiss, as “a defamation plaintiff must produce evidence of sufficient quality and quantity to demonstrate that he will be able to meet his burden of proof at trial.” Estiverne v. Times-Picayune, L.L.C., 950 So.2d 858, 860 (La.App. 4th Cir. 2006) (quotation marks omitted). As one Louisiana court has noted, establishing . a probability of success is a “difficult burden.” Baxter, 847 So.2d at 235. This burden is justified, however,, as “the necessity of protecting our constitutional rights of free speech and petition,. . particularly when exercised in relation to public issues or matters of public interest, requires the imposition of this burden on a plaintiff who brings a defamation action impacting these rights.” Id.

Henry, 566 F.3d at 181-82 (emphasis added).

Saucier Fails to Show Damages/Injury.

First, we find Saucier utterly failed.to show any chance of prevailing on the element of damages (“resulting injury”). There is absolutely no evidence in the record showing any damage to Saucier. In matters of public interest defamation cases there is no presumption .of damages:

A private figure plaintiff claiming defamation from a factual misstatement on a public issue cannot recover presumed or punitive damages without showing actual malice. Gertz v. Robert Welch, Inc., 418 U.S. 323, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

Romero v. Thomson Newspapers (Wisconsin), Inc., 94-1105, pp. 6-7 (La. 1/17/95), 648 So.2d 866, 870, cert. denied, 515 U.S. 1131, 115 S.Ct. 2556, 132 L.Ed.2d 810 (1995)(emphasis added).

hsThus, to survive this Article 971 motion, Saucier had to put forth evidence to show (1) damages as a result of .the alleged defamation; and (2) proof of malice. There is nothing that could .be .posited as evidence here.that suffices-to satisfy Saucier’s burden—arguments and briefs are not evidence. This failure alone required the granting of Washington’s Article 971 Motion and a dismissal .of Saucier’s case.

Saucier Fails to Show Washington Made Untrue Statements.

In-a case recently before this court, the panel, consisting of Judges Amy, Peters and Savoie, granted a writ, reversed the lower court, and granted the Article 971 motion to strike, remanding the matter for a determination of attorney fees and costs to be awarded to movant. The panel found that the parties’ pleadings alone • were not sufficient to carry the plaintiffs burden to prove the probability of success on its defamation claim. Neither party submitted affidavits in support of its claims. Judge Amy wrote for the majority: “Simply, the adverse pleadings offer no insight into the elements of falsity, unprivileged publication to another, faült, and injury ...” Ahearn v. City of Alexandria, 15-1014, 15-1189, p. 9 (La.App. 3 Cir. 5/4/15), 191 So.3d 689, 695 (emphasis added). Likewise here, the adverse pleadings offer no evidentiary support favoring the success of Saucier’s claim. The only affidavit in the record is Washington’s, leaving his testimony therein uncontroverted. In Henry, 566 F.3d 177, much as in this case, the only evidence presented was reprints of the newspaper article and an affidavit by Henry’s attorney. Here, the only evidence presented are reprints of the blog posts/comments and the article “Land Grab in Rapides: Lawyer Buys 2200 Acres Surrounding Black Family and Then Fences Them Out of Their Own Property,” Louisiana Voice, and an affidavit by Washington.

| uThe sworn statements in Washington’s affidavit are uncontradicted by any affidavit or testimony. Washington attests in his affidavit that he “did not author [the] article or write any of its content [and] he did not review the article prior to its publication.” He further attests he “did not tell Aswell what to write or even suggest what to write in the article [and] he never conspired with Aswell about what to write and did not know whether Aswell would even write an article.” Saucier offered no evidence to contradict this evidence. The trial court in its reasons for judgment refers to a retraction of the article by Aswell and a written response by Saucier. Neither As-well’s alleged retraction nor Saucier’s alleged response is found in this record. Even if we-had the benefit of reading Aswell’s alleged retraction and Saucier’s response there is no affidavit to support the truthfulness of either. There is absolutely no evidence regarding the alleged radio defamatory statements and no evidence regarding any campaign literature. Thus the only allegations in Saucier’s petition supported by anything at all are limited to the comments in the blog and, for that, all we have is a copy of the comments made by citizens and Washington in the ongoing dialogue in the blog.

Washington attached to his affidavit a letter from Saucier’s attorney stating that Saucier did in fact erect a fence around the Harrells’ property because he was putting a special breed of deer on his property, and as Washington attests these “facts which were discussed in the article, ... are, therefore true.” He also attached a copy of a letter from Saucier to the Harrell heirs informing them of the final judgment issued by the trial court, which Saucier alleged prohibits them, their heirs or assigns forever from obtaining a servitude across his property. As Washington attests in his affidavit, this letter is proof that Aswell’s statement in his particle to the effect that the Harrell heirs no longer have access to their property and that they were informed of this directly by Saucier is also true.

Washington provides uncontroverted testimony in his affidavit regarding his comments on a radio talk show. Saucier failed to introduce as evidence transcripts or audio copies of the radio comments he finds so offensive. The only evidence in the record is Washington’s uncontradicted affidavit which shows he spoke on the public radio program in response to District Attorney candidate Philip Terrell’s discussion of the Saucier and Harrell litigation during his campaign for D.A. Terrell was the judge who awarded damages to Saucier in the “trash” case against the Harrell heirs. Terrell first placed the matter in the public arena and Washington enjoyed the constitutional right to freely express his side of the story and to state his opinion that he and his family did not feel fairly treated in the matter—in their opinion the judge did not rule fairly in light of the evidence presented and they believed the judgment was excessive. According to Aswell’s article, District Judge Johnson stated on the record he agreed with that sentiment but was powerless to do anything about the injustice because it was not part of the case before him. Saucier did not present one scintilla of evidence to show the judge did not make such comments or to show Washington knew he was making a false statement. It was | ^Terrell who chose to use the Harrells’ case as an example to, show he had given what he considered fair treatment to black litigants in his court. He opened the door to public discourse in his race for D.A. Washington had every right to speak out. Saucier’s allegations of defamation stemming from the radio show remain wholly unsupported by any evidence.

Washington provided evidence in his affidavit of the truthfulness of his statements, and statements in the blog article, that Saucier did in' fact first file his trash suit in district court, "it was assigned randomly to a black judge, he unilaterally dismissed the suit without prejudice' and promptly filed it in Pineville City Court where it would be heard by Judge Terrell, a white judge. Thus, the question put forth by Washington as food for thought in the blog—could this have been judge" forum shopping—is not presumptively malicious or false, or such an outrageous thought, idea or opinion that only evil motive can be assigned the inquiry.

Malice: proof of knowledge of the falsity; reckless disregard for the truth.

Malice (or. fault), for purposes of the tort of defamation, is a lack of reasonable belief in the truth of the statement giving rise to the defamation. Douglas v. Thomas, 31,470, pp. 4-5 (La. App. 2 Cir. 2/24/99), 728 So.2d 560, 563, writ denied, 99-0835 (5/14/99) 741 So.2d 661 (citing Bell v. Rogers, 29,757 (La. App. 2 Cir. 8/20/97), 698 So.2d 749); Cotonio v. Guglielmo, 176 La. 421, 146 So. 11, 13 (1933) (“Malice, arising from the publication of a false and injurious charge, without probable cause for thinking the charge is true, suffices [to sustain the action for libel]"); Steed v. St. Paul’s United Methodist Church, 31,521, 31,522, pp. 10-11 (La.App. 2 Cir. 2/24/99), 728 So.2d 931, 940, unit denied, 99-0877 (La. 5/7/99), 740 So.2d 1290; Neuberger, Coerver & Goins v. Times Picayune Pub. Co., 597 So.2d 1179, 1182 (La.App. 1 Cir.1992) (quoting Redmond v. McCool, 582 So.2d 262, 265 (La.App. 1 Cir.1991) (“Only when a statement is found to be made without reasonable grounds for believing it to be true can the person uttering the statement be • found to be actuated by malice or ill will.”). Malice in this sense is more akin to negligence with respect to the. truth than to spite or improper motive. See, RESTATEMENT (SECOND) OF TORTS § 580B (1977) which defines the malice (or fault) necessary to sustain a defamation action as publication by one who “(a) knows that the 117statement is false and that defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.”

Costello v. Hardy, 03-1146, pp. 18-19 (La. 1/21/04), 864 So.2d 129, 143-44 (emphasis added).

The Louisiana State Supreme Court in Romero, 648 So.2d at 869-70, (emphasis added) also explained:

Actual malice is demonstrated by a false statement made with knowledge of its falsity or with reckless disregard for the truth, There is authority for applying the New York Times rule when an article concerns public issues, even though the plaintiff is a private person. Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).
Speech on matters of public concern enjoys enhanced constitutional protection. Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). See The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989). Hyperbole, which could not reasonably be interpreted as stating actual fact, is protected. Greenbelt Cooperative Publishing Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537, 26 L.Ed.2d 6 (1970).
The Louisiana Constitution guarantees .freedom of the press in Article 1, § 7, as follows:
Freedom of Expression
Section 7. No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on ■ any subject, but is responsible for abuse of that freedom.
Truth is a defense, and it is sufficient if an allegedly libelous article is substantially true: unimportant details need not be accurate, Otero v. Ewing, 165 La. 398, 115 So. 633 (1927).

As we have said previously, there is absolutely no evidence presented by Saucier showing Washington acted with “actual malice” in uttering any of the statements he made. In Gertz v. Welch, 418 18U.S. 323, 328, 94 S.Ct. 2997, 3001, 41 L.Ed.2d 789 (1974), the U.S. Supreme Court defined actual malice as “with knowledge that it was false or with reckless disregard of whether it was false or not.” This record belies any such conclusion as to anything stated by Washington in the blog posts or attributable to him in the news article.

Washington’s Opinions Are Not Defamation.

If a statement expresses an opinion, a defamation action must fail, unless the opinion implies, a false and libelous fact and the opinion was expressed - with actual malice. Bussie v. Lowenthal, 535 So.2d 378 (La.1988).

Romero, 648 So.2d at 870.

Washington did no more than express his opinion based on the facts he knew from his involvement in legal proceedings and from information made public during Terrell’s campaign for election as D.A, The entirety of the remarks which Saucier alleges are defamatory are no more than opinion which the speaker sought to explain in light of the facts he reasonably believed to be true. The truthfulness of Washington’s factual statements regarding litigation between the Harrells and Saucier is supported in this court’s previous opinions of'which we may take judicial hotice.' This litigation, to the say the least, has a contorted procedural history and would no doubt be confusing to most lay members of our society. The blog article in which references are made to 'the court proceedings was written by Mr. As-well. As noted earlier, there is no affidavit from Mr. Aswell stating that Washington is responsible for any of the content except to point him to the court documents which we have now reviewed. Washington’s expression that a judge is supposed to be neutral and unbiased is not untrue. His reservation that something else might have been going on in this case was not made without any factual basis.119More important here, Saucier presented no evidence to show Washington acted with malice in voicing his unease with rulings made in the litigation.

Washington encouraged and invited open and public debate and discourse on the matter and urged Saucier to give his side of the story. Washington attests in his affidavit that he. “along: with many other persons who were discussing various topics of public interest, including elections, property rights and judicial cases” made comments in the blog. Our review.of those comments reveal Washington merely gave his opinion which he supported by truthful facts gleaned from actual lawsuits .in which he was. involved as a party. Prom this scant ,reeord, and. reading the reported opinions of this court and . the Louisiana State Supreme Court, it is apparent that Washington relied on those cases for many of the facts -that formed ,t|ie basis of his statements and opinions. He invited the readers to think for themselves, to investigate for themselves, and to form their own opinions. He even invited Saucier and others mentioned to respond with their version of the facts and to give their opinions and assessments of the matters discussed.

We also disagree with; the trial judge’s conclusion that the generic reference to judges and .lawyers and association with the KKK (Ku Klux Klan) in any way indicated Washington was referring to anyone in particular. It was a general statement of his opinion based upon information-easily found in historic records. Additionally, no evidence as to the statement’s falsity was introduced by Saucier -nor did he produce any evidence that such was in any way damaging to his reputation. Even more fatal is his failure to present any evidence that Washington |2nknew that none of the members of the judiciary or lawyers have any connection to the Klan. All. in all, .the reader is left to draw his/her own conclusions regarding the matters discussed and is encouraged to investigate, both sides’ claims for him/herself. That is what freedom of speech is all about.

The trial judge in his written reasons for judgment gives us insight into his flawed reasoning process. He relied on comments in the blog made by persons other than Washington to conclude “It is obvious that the basic assertion was that Saucier was misappropriating the property of the Har-rells without any legal justification.’' He based this on the posted comment by someone identified as “Tony T.” who stated “Besides BULLYING, this is an act of STRONG ARM ROBBERY (knowingly taking someone’s rights to his/her property this is no different)'.. But this only shows Tony T.’s opinion on the matter. This is by no means evidence of defamation by Washington. Tony T. arrived at his opinion based on the facts reflected in the court cases, letters from Saucier and his lawyer, and other truthful information referred to in the blog and article. The judge sought to use his interpretation, of comments by unknown persons on the blog to conclude,these “comments further corroborate that these apparently ordinary persons understood the comment to be a statement of fact.” All that one can- conclude from Tony T.’s or any other comments on the blog, whether favorable or. unfavorable to Saucier or Washington, is that' this matter of public interest generated lively debate and each reached their own opinion through open and public discourse.

We further disagree with the trial judge’s conclusion that:

It is clear that Mr. ASwelí did very little investigation as it pertains to the accuracy of this article. He simply took the word of Mr. Washington and wrote an article that was clearly printed in an effort [to] present a sensational story which hit on almost every hot button in today’s society. Greed, race, class warfare, political corruption, unethical behavior by judges and lawyers, were addressed |21in the article without any attempt to hear.the “rest of the story” as once expressed by Paul Harvey.

There is no evidence to support his conclusion and, in fact, the only evidence, presented through Washington’s affidavit, is totally to the contrary. There is absolutely nothing in the record to support the trial judge’s so-called “clear” observations. There is no evidence tending to show the lack of investigation, the accuracy of the article, the degree (if any) of Washington’s participation (other than Washington’s account in his affidavit), or any alleged attempt to “sensationalize” the story. Paul Harvey’s closing comment “and now you know the rest of the story” cannot be relied upon to place a muzzle on Washington’s right to free speech unless and until all the judges and lawyers unnamed in a news article or blog, speak too.

Saucier Fails to Show an Unprivileged Dissemination of a Falsehood.

As we have previously explained, most if not all of Washington’s comments made in the blog were originally made in judicial proceedings in which he was a party and all of the information in Aswell’s article was obtained from those proceedings. These comments enjoy a conditional privilege.

[E]ven when a plaintiff makes a prima facie showing óf the essential elements of defamation, recovery may be precluded if the defendant shows either that the statement was true, or that it was protected by a privilege, absolute or qualified. Doe v. Grant, 01-0175, p. 9 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, 416, writ denied, 03-0604 (La. 5/2/03), 842 So.2d 1102; Arledge v. Hendricks, 30,588, p. 4 (La.App. 2 Cir. 6/26/98), 715 So.2d 135, 139.

Costello, 864 So.2d at 141.

In cases of defamation alleged to arise from statements 'made in pleadings or otherwise in the course of a judicial proceeding, the conditional privilege operates to protect “minimally offensive allegations necessary to state a cause of action.” See Costello, 03-1146 at p. 16 n. 13, 864 So.2d at 142 n. 13. As the supreme court has observed on a number of occasions, “[ljitigants must be free to allege facts constituting inappropriate conduct if there is any reasonable basis for such allegations and the misconduct is relevant to the | ^proceeding.” Id., citing Freeman v. Cooper, 414 So.2d 355, 359 (La.1982).

Jalou II, Inc. v. Liner, 10-0048, p. 25 (La.App. 1 Cir. 6/16/10), 43 So.3d 1023, 1039.

Not only did Washington enjoy the protection of this privilege, we find his statements found objectionable by Saucier, were truthful and constituted his opinions which were not proven to have been made with malice.

Conclusion

For the reasons stated, the writ is granted and made peremptory; judgment is hereby rendered in favor of Washington granting his La.Code Civ.P. art. 971 Motion dismissing Saucier’s suit with prejudice, and awarding Washington attorney fees for services rendered in both the trial court and this court in accordance with the provisions of La.Code Civ.P. art. 971(B). We award Washington attorney fees in this court in the amount of $5,000.00. The case is remanded to .the trial court for a determination of the amount and an award of attorney fees for the work performed below. All costs of this appeal and all court costs in the trial court are assessed against Plaintiff.

WRIT GRANTED AND MADE PEREMPTORY; JUDGMENT RENDERED; REMANDED WITH INSTRUCTIONS.

Saunders, J., concurs in the result reached.

J. Savoie concurs with reasons.

Savoie, J.,

concurs and assigns reasons.

11 This matter involves the trial court’s denial of a motion to strike Plaintiffs defamation action against Defendant Washington pursuant to La.Code Civ.P. art. 971. The defamation action arises out of an online political blog article written by As-well, as well as the written comments Washington made to the online blog, which reference prior litigation between Washington’s family and Plaintiff.

I concur with, the decision in this matter based on the limited information provided in connection with the writ application. However, the information provided is problematic because it is unclear what evidence was submitted during the hearing on Washington’s motion to strike. The minutes provided merely indicate that the court considered all evidence submitted, with no indication of what evidence was submitted.

La.Code Civ.P. art. 971(A)(2) states that, in considering a special motion to strike, “the court shall consider the pleadings and supporting and opposing affidavits stating facts upon which the liability or defense is based.” ■

The Relator provided us with a copy of Plaintiffs original petition, as- well as a copy of Aswell’s blog article and Washington’s comments thereto, which were attached to Plaintiffs petition. We were also provided with Plaintiffs amended and supplemental petitions. However, the information provided to us does not | acontain any supporting affidavits or other evidence submitted by Plaintiff in support' of his action. Plaintiff did not submit an opposition to the instant writ application or otherwise direct us to any such evidence.

Washington also provided us with a copy of his motion to strike, his supporting memorandum, and the exhibits attached thereto, which included an affidavit addressing and denying Plaintiffs allegations. It is unclear whether these documents’ were offered or accepted into evidence by the trial court.

I agree with the conclusion that, in connection with Mr. Washington’s motion to strike, it was ultimately Plaintiffs burden to demonstrate a probability of success as to his alleged defamation action in order for Plaintiff to defeat the motion. I also agree with the conclusion that Plaintiff failed to satisfy that burden based on the limited information provided to us.

There is insufficient evidence establishing Plaintiff could prevail on the damages element of his defamation action. Further, the blog article and comments thereto are insufficient to establish the probability that Plaintiff could prove a defamation action against Washington. There is no evidence indicating that Aswell and Washington conspired together in connection with writing or publishing Aswell’s article, as alleged, or that the information in Aswell’s article was given to him by Washington. Washington states in his affidavit that he did not conspire with Aswell or otherwise provide him with any information other than court documents from prior litigation between the parties. Moreover, Washington references Plaintiff only twice in the comments he made to Aswell’s article, and neither of those statements satisfy the elements required to establish a defamation action. Similarly, Washington’s other general comments and opinions in his comments also fail to support an actionable defamation action by Plaintiff.

      . [Erris-Omega ..counsel]: Your honor, as we’ve discussed in the .back we have reached an agreement on almost all issues involved in this matter. The parties intend and hereby stipulate that they shall enter into a predial servitude agreement granting the [Harrells]— once they get. a court order from the [G]rant [Parish] succession, authorizing them to accept this and enter into this contract, we would grant them a 13.5 foot wide right-of-way which would run from the levee down to the gate that is located right before the rail road [sic] tracks.'
      That will all have to be surveyed and [the Harrells] will pay the expense, they will obtain a registered surveyor, subject to our approval, it shouldn’t be problematic, that that will be at their cost.
      With respect to court costs the prior judgment cast the plaintiff in court cost for that rule. Aside from that, each party will pay their own court cost.
      With 'respect to the gates that are already existent, those are to remain in their present state, including the cattle guard unless they [the Harrells] decide to make an alteration to extend the width of the cattle guard from the 10 foot to 16 feet- or whatever, fitting within the current fencing there. That would have to be done at their expense, subject to our approval of the plans. The gates are to reinain—the two gates áre to remain locked at all times save and except when the [Harrells] , are passing through it.
      Two extra keys will be issued as to [Erris-Omega’s] gate on the levee. And, Your Hon- or, we don’t have authority at this time, we’re fairly comfortable that we will be able to obtain, for their convenience, two extra keys to the Bobby Smith gate as well.

      And, Your Honor, we will preadmit [sic] the issue of compensation to be paid for the taking of the right-of-way and we will attempt to work that out if we can. If not, we may return to the Court, whether by . memorandum or hearing for the Court to adjudicate that aspect.

        Succession of Harrell v. Erris-Omega Plantation, Inc., 10-138, p. 2 (La.App. 3 Cir. 6/2/10), 41 So.3d 1215, 1217, writ granted, 10-2059 (La. 12/17/10), 50 So.3d 158 (emphasis added).

      . See Succession of Harrell v. Erris-Omega Plantation, 41 So.3d 1215.

      . Succession of Harrell v. Erris-Omega Plantation, Inc., 12-696 (La.App. 3 Cir. 12/5/12), 104 So.3d 751, writ denied, 13-438 (La. 4/5/13), 110 So.3d 595.

      . In denying writs on the trial court's dismissal of the nullity action on remand, the supreme court did not re-instate the trial judge’s December judgment on the exception of no cause of action which also dismissed the Har-rells’ original petition seeking injunctive relief and recognition of a servitude of passage,
      Louisiana Civil Code Article,1767 provides "A conditional obligation is one dependent on an uncertain event.” We note for example, .the executor of the Harrells’ estate must get court approval of the proposed settlement—the heirs do not have legal authority- to act apart from the. executor and the court in Grant Parish. The transcription of the memorandum of understanding acknowledges the existence of this fact. The heirs did not and could not bind the Grant Parish court to approve the alleged settlement—the court was not a party and it is not certain the court will do so. The heirs’ obligation to perfect the deal also depends on Saucier’s sole discretion to approve the choice of surveyor, and the size-to which the gates can be enlarged. Under.the provisions of La.Civ.Code art. 1770: "A suspensive condition that depends solely ón the whim of the obligor makes the obligation null.” Price was not agreed on but was left to be determined by the parties “if they could,” and this too is dependent on court approval in the Grant Parish district court. If the parties could not agree on the price then it was to be determined by the trial court in the appropriate proceedings. These are all suspensive condition's. Additionally, under the provisions of La.Giv.Code art. 1769: "A suspensive condition that is unlawful or impossible makes the obligation null.” Entering a settlement without the required approval from the Grant Parish court handling the succession was unlawful and impossible, thus the underlying obligation to perform may be unenforceable. The supreme court did not have to worry about this when it denied writs because the remedy for the alleged failure of the Harrells to comply with the agreement was not before it.

      . When the .trial judge dismissed the nullity action the only things 'remaining were the original petition and-the'April 20; 2009 judgment recognizing the settlement and ordering its execution within sixty ,days. Further, when Saucier wrote a letter advising the Harrells that they are forever barfed from entering his property and the matter was final, the. case had not been re-fixed for hearing to address the Harrells' alleged failure to comply. La, Code Civ.P. art. 2504 provides a reasonable remedy for the failure to specifically perform acts directed by a judgment. The court may direct the acts to be dóne be-performed by a third party appointed by the court at the disobedient party’s expense, “with the same effect as if done by the parly." Additionally, since a settlement is a contract between the parties, La.Civ.Code art. 2013 provides:
      In an action involving judicial dissolution, the obligor who failed to perform may be granted, according to the circumstances, an additional time to perform.

      . When the land-grab article was written by Aswell stating the Harrell heirs could not ever return to their property, only Saucier’s letter confirmed that as a fact. Saucier did not mention in his letter that any subsequent proceeding had been scheduled to revisit what measures might be put in place to enforce the April 20, 2009 sixty-day deadline. Without a new hearing Saucier’s representations were understandably confusing to Washington. A properly scheduled hearing with notice to address the issue of the appropriate remedy (if any) for the Harrells’ alleged failure to execute and fulfill the settlement agreement within sixty days as ordered in the April 20, 2009 judgment (which elapsed while they were seeking to annul it) had not occurred. The appropriateness of the remedy may very well depend on whether this failure is justifiable or resulted from conditions or events outside their control as noted in footnotes four and five.
      We previously pointed out the judgment of the State Supreme Court reversing the trial court’s December 2009 ruling prevents it from having any res judicata effect on the Harrell heirs’ claim for injunctive relief and other relief or the enforcement of the April 20, 2009 settlement order.

      . Judge Gremillion noted in this court’s previous opinion the idea that the Harrells be forever barred from seeking any servitude across the Erris-Omega property first arose from a suggestion by the trial judge who heard the April 2009 motion as a possible result for their failure to execute the settlement.

        Succession of Harrell v. Erris-Omega Plantation, Inc., 41 So.3d at 1218.

      . See, Fitzgerald v. Tucker, 98-2313 (La. 6/29/99), 737 So.2d 706.