Murphy J. Painter, Sr. v. Dustin Clouatre, Hughes Insurance Services, LLC, Pelican Post News, L.L.C., Wade Petite, Ricky Babin, ABC Insurance Company, Clint Cointment

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 CA 0767

MURPHY J. PAINTER, SR.

VERSUS

DUSTIN CLOUATRE, HUGHES INSURANCE SERVICES, LLC,
PELICAN POST NEWS, L.L.C., WADE PETITE, RICKY BABIN9 ABC
INSURANCE COMPANY, CLINT COINTMENT

Judgment Rendered. -

Appealed from the
23rd Judicial District Court
In and for the Parish of Ascension
State of Louisiana
Case No. 129, 894

The Honorable Ashley Bruce Simpson, Judge Presiding

Kim Segura Landry Counsel for Plaintiff/Appellant
Gonzales, Louisiana Murphy J. Painter, Sr.

Timothy E. Pujol Counsel for Defendant/Appellee
Barbara Lane Irwin Clint Cointment
Ashley D. Tadda
Gonzales, Louisiana

BEFORE: THERIOT9 CHUTZ, AND HESTER, JJ.

THERIOT, J.

In this defamation suit, the plaintiff appeals a summary judgment dismissing
his claims against one defendant. For the reasons set forth herein, we affirm.

FACTS AND PROCEDURAL HISTORY

In 2019, Murphy J. Painter, Sr. and Clint Cointment were both candidates

for the public office of Ascension Parish President. Shortly after placing second

behind Cointment in the primary election, Painter withdrew from the race on

October 21, 2019, and Cointment was elected to the position without opposition.

Painter alleged that Cointment had conspired with several other individuals,

including Wade Petite, Dustin Clouatre, and Ascension Parish District Attorney
Ricky Babin, to cause Painter to withdraw from the election so that Cointment

would be elected. The complicated civil conspiracy alleged by Painter involved

Clouatre secretly recording a conversation with Painter on February 7, 2019, and

Petite having the audio recording edited in order to make it appear that Painter was

involved in a crime and then publishing the defamatory recording in an article on
his online blog, the Pelican Post News. According to Painter, the purpose of the

conspiracy was to get him to withdraw from the election so that Cointment would

be elected unopposed and Clouatre' s employer, Hughes Insurance Services,

L.L.C.,
would be awarded the parish insurance business by Cointment.

Painter filed a petition for damages against Dustin Clouatre, Hughes

Insurance Services, LLC, Pelican Post News, LLC, Wade Petite, Ricky Babin in
his capacity as District Attorney for the 2311
Judicial District Court for the Parish of

Ascension, Clint Cointment, and Westport Insurance Corporation. Painter alleged

that Petite and Clouatre conspired to hide the true substance of his statements,

knowingly altered the audio recording, knowingly made false accusations that he

committed a crime, and knowingly published the altered recording as evidence of

the false accusations in an effort to damage his reputation in the community and

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advance Cointment' s candidacy. Painter' s allegations against Cointment were that

Cointment participated in a conspiracy with Clouatre and Petite to publish
defamatory statements about Painter, which would be detrimental to Painter' s

campaign, in order to benefit Cointment' s campaign for Parish President. In his

Third Supplemental and Amended Petition for Damages, Painter alleged:

Petite, Clouatre[,] and Cointment conspired to hide the true substance
of [ Painter' s] statements,
and knowingly altered the recording of
Painter], knowingly made false accusations that [ Painter] committed

a crime by aiding in the cover-up of the rapes of 5 twelve year old
girls, and knowingly published the altered recording as evidence of
the false accusations in an effort to damage [ Painter' s] reputation in
the community and advance the candidacy of Cointment and to
ultimately benefit from Cointment becoming Parish President.
On August 18, 2023,
Cointment filed a motion for summary judgment,

urging that Painter' s claims against him should be dismissed with prejudice.

According to Cointment' s motion, Painter' s sole claim against him is rooted in the

allegation that he was a participant in an alleged civil conspiracy to defame
Painter, and Painter "
lacks evidence sufficient to meet his burden of proof to

establish that Clint Cointment was involved in, had knowledge of, or was a party to
an agreement to defame [ Painter], which is the basis of the action [ Painter] has

brought against Clint Cointment." In support of his motion, Cointment filed

Painter' s original and amending petitions for damages, as well as the depositions of
Painter, Cointment, Clouatre, Petite, Brett Hughes of Hughes Insurance, Babin,

and Michael Marchand.

In opposition to Cointment' s motion, Painter filed his own affidavit; the

original and edited tape recordings of his meeting with Clouatre; and excerpts from

the depositions of Clouatre, Petite, Marchand, Cointment, Painter, Hughes, and

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Babin; Petite' s affidavit; and certified Verizon phone records for Petite and

Clouatre. l

PaiYiter' s Deposition

Painter testified that news of his intention to run for Ascension Parish

President was out as early as October of 2018, although he did not officially

announce his candidacy for the office until early 2019. According to Painter, the

only negative feedback he received regarding his potential candidacy was from the

current Parish President, Kenny Matassa, and from those people he considered to

be Cointment' s supporters. Painter explained that Matassa had chosen not to run

for reelection because " a group had gotten [ Matassa] indicted and he had to go to

court [ but] was found not guilty...." Painter testified that when he approached

Matassa about his potential candidacy, "[ t]he only thing I got was warning about

who I was fooling with and to be careful that the same thing didn' t happen to me."

Painter testified that he met with one of Cointment' s supporters, Petite, in October

of 2018, and at that meeting, Petite told him that he had " been authorized by Clint

Cointment to offer you one of the top positions in the Parish government if you do

not run for Parish President." Painter went on to say that Petite " assured me that if

I didn' t accept the position that he and Clint Cointment was offering me at the time

that we, he used the word we, we gonna do you exactly the same that we did

Kenny Matassa. So that would probably be the biggest ... warning or biggest

issue that took place or negative was that threat."

Painter testified that after he officially announced his candidacy for Parish
President,
he was invited to a meeting at the office of Hughes Insurance by
Clouatre " to discuss politics but particularly the potential of Hughes Insurance

having the opportunity to bid on the Parish Insurance situation." Painter testified

Cointment objected to a number of exhibits filed by Painter in opposition to his motion. The trial court sustained
Cointment' s objection to Petite' s and Clouatre' s cell phone records, and Cointment withdrew his remaining
objections.

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that he asked Clouatre several times during the meeting what was going on and

whether the meeting was being recorded because it was clear that Clouatre was

reading questions off of a computer. Although Clouatre assured him that the

conversation was not being recorded and was just between Painter and Clouatre,

Painter testified that he became aware almost immediately after the meeting that

Clouatre had discussed their conversation with Petite, because he received a text

message from Petite early the next day " telling me something that I said in the

meeting with [ Clouatre]." Although Painter had been suspicious all along that his

conversation with Clouatre was being recorded, he testified that after he received

the early morning text message from Petite, it became obvious to him that Clouatre

had been lying to him when he told him that he was simply trying to understand

Painter' s position on certain issues and had not yet committed to supporting

Cointment in the race and " that [ Clouatre] was . . . an operative of Clint

Cointment' s campaign and that he had some negative reason that he was doing all

this." Despite the fact that Clouatre continued to deny having recorded their

conversation, Painter testified that beginning in February 2019, " Petite and

Clouatre and others in that group had been putting [ things] out ... that they had

this secret tape that would eliminate me from getting elected Parish President."

Painter testified that District Attorney Ricky Babin contacted him in August

2019, shortly before qualifying for the election for Parish President began, and told

him that Petite had given him an. audio recording of Painter, which Babin had

forwarded to the state police. Painter testified that Babin told him that he was not

being accused of any wrongdoing, but that Babin wanted to discuss the tape with

him. Painter testified that he told Babin that " This is some more [ of] Petite and

Clouatre' s bullshit and the deja vu all over again of Kenny Matassa being indicted

so that Clint Cointment would have a chance of getting elected." Painter told

Babin that he believed that the recording was being used as a ploy to stop him from

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qualifying for the race for Parish President, and he ultimately refused to speak to

Babin about the recording.

Painter testified that several days after the primary election, in which he

placed second behind Cointment, Petite published a story about him in his blog, the

Pelican Post News, along with an. excerpt from the audio recording. Although

Painter admitted that the Pelican Post News story made it clear that he was not

being accused of any wrongdoing, he believed that the publication was politically

motivated and intended to negatively impact his campaign and benefit Cointment' s

campaign. According to Painter, after the article was published in the Pelican Post

News, " Petite produced the tape and Channel 9 and every other news media in this

particular area picked it up that ... [ Babin' s] intention was to call me before a

Grand Jury to discuss what was on the tape." He testified that after the publication,

neither of the other two candidates from the primary would agree to support him in

the runoff, and his political consultant informed him that polls showed that

undecided voters who had seen the Pelican Post News article were not inclined to

vote for him. Based on the combination of these factors, Painter dropped out of the

race for Parish President three days later.

Painter admitted in his deposition that any evidence of Cointment' s

involvement in the alleged conspiracy at issue in this matter was merely
circumstantial; however, he expressed the belief that "[ t] here' s no difference

between the conspirators ... [ b] ased on the phone calls [ between the alleged co-

conspirators], based on the actions and based on the benefits that each one of them

got from this event, ... in my opinion there is no difference." Painter testified that

Cointment' s campaign made a payment to either Petite or the Pelican Post

approximately one week before his October 2018 meeting with Petite, and that

when he met with Petite in October of 2018, Petite told him that he was meeting
with him on Cointment' s behalf. As further proof of the connection between Petite

and Cointment, Painter testified that when he sent a text message to Cointment on

January 15, 2019 to inform him that he was running for Parish President and to

request a meeting, he received a response from Petite rather than Cointment.

Painter also testified to hearing rumors that the audio recording had been played in

Cointment' s presence at some point; however, he admitted that he had no evidence

that the tape recording was in fact ever played for Cointment and further admitted

that he never discussed the alleged conspiracy with Cointment or asked him if he

participated in it. When asked what evidence he had to counter the denials by

Cointment, Petite, and Clouatre that Cointment was involved or had any decision-

making authority in any way in the editing or publishing of the audio recording,

Painter testified:

Well, I mean, the only evidence and the reason why we' re here
is that during that time they were like the Three Musketeers if you
wanna go through that and the Kenny Matassa election and also in
mine, every -- everything that took place negative or had an issue with
anything that we' ve filed, the phone records and everything else show
that Petite had conversations with — numerous conversations with

Cointment or Clouatre on those same days before and after anything
was done and if —
on the phone records that we were entitled to which
covers the time of whatever happened here, Clint Cointment and him
talked 1, 272 times, Dustin Clouatre 1, 775 times.

Now, I don' t know what was in those conversations. I don' t
record any of --

I' m just gonna say that circumstantially when one of them or
the other one is gonna say that they didn' t know what the other one' s
been doing, I find that hard to believe, and I want a jury to decide
whether they believe it or not.

When asked whether he had any other evidence at all regarding Cointment' s

involvement, Painter testified:

Well, the tape, the fact that it was done, them talking before, the
benefits, who got the benefit of it happening, Wade Petite admitting
that he would do ... anything for his clients, that that was what he
was supposed to do, is to get people elected and —and he did, so....

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Painter further speculated that " Petite was ... being paid by Clint Cointment

in whatever capacity that was. If he did something without Clint Cointment

knowing about it, then in my opinion he violated whatever agreement he had or

whatever he was doing with Clint Cointment, unless Clint Cointment gave him

total authority over the campaign, and if he did that, then that doesn' t —that does

not relieve him of liability or anybody else in this deal." Aside from these

statements, Painter reiterated that the only " factual basis" he had for his allegations

regarding the conspiracy were the " 1, 272 telephone calls to Clint Cointment and

the 1, 775 telephone calls to Dustin Clouatre."

When asked whether he had any evidence that Petite' s testimony that

Clouatre did not tell him about his plan to record Painter and that it was solely his

Petite' s) decision to edit and record and publish the recording was not true,

Painter explained:

I have no — I wasn' t in any conversations or privy to any phone
calls or whatever else.... I do not believe that Wade Petite is telling
the truth . . . in that statement. . . . And I think the evidence
overwhelmingly shows that it' s not true. . . . [ W] hat I have is
circumstantial evidence that I think tips the scale ... and disproves
that statement [ such as] [ t] elephone records, the fact that the tape was
altered and he — he said he didn' t —you know, he didn' t alter the tape.
No, he didn' t, but he sure and. the hell had Michael Marchand alter the
tape ... so, I mean, it' s true he didn' t alter the tape, but he [ Petite] had
it altered.... Again, neither [ Petite nor Clouatre] has shared with me
or given me any insight into that particular window that we talking
about.
The circumstances of the Kenny Matassa event where Clouatre
and [ Petite] did exactly the same thing in a unified effort to tape more
than one person clandestine [ sic] and go through that process of that

case and this repeating the same scenario here with the same people
under the circumstances that I gave you of [Petite] saying we gonna
do you the same thing that we did Kenny Matassa, well, we did. I
mean, Clouatre made the tape. He did what he had to do, and they
published it.

Cointnient' s Deposition

Cointment testified that he was never involved in any conspiracy with

anyone to defame Painter. According to Cointment, Petite did some work for him

in his 2019 campaign for Parish President, as he had in a previous campaign,

which consisted of advertising and. getting his message or vision out to the public.

Cointment testified that payment for Petite' s work on the campaign would have

been made to The Pelican Post, and aside from payment for advertising, he had no

other payment arrangements with The Pelican Post or Petite during the campaign.

Cointment recalled having a conversation with Petite at some point, in which Petite

told him that Painter had reached out to him about wanting a job or needing

something for the election, and when Cointment told Petite that " is something I

don' t do," Petite advised him that he needed to stay away from Painter. Cointment

testified that although he had heard rumors that Petite was going to be publishing

an article on his bldg, the first time he knew that Clouatre had recorded a

conversation with Painter was when Clouatre called him to ask him to convince

Petite not to publish the audio recording. Cointment testified that he called Petite

regarding Clouatre' s request, but Petite told him to stay out of it because "[ t]his is

between me and [ Painter]." Cointment explained that he took that advice and

stayed out of it after that conversation because he was running a campaign and

needed to use his time to go out and knock on doors and " get votes and present my

vision of what I was going to do as parish president." Cointment further testified

that he was "[ a] bsolutely not" aware that Petite was going to turn the audio

recording over to the District Attorney' s office.

Clouatre' s Deposition

Clouatre testified that he had supported Cointment' s unsuccessful campaign

for Parish President in 2015, but he could not recall whether he provided any
support, financial or otherwise, to Cointment' s 2019 campaign. Clouatre' s

meeting with Painter arose from a text message he received from Painter on

February 1, 2019 about meeting " to chat." Although Painter' s text message states

that he was told by a mutual friend that Clouatre wanted to meet with him,

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Clouatre denied requesting the meeting and testified that he assumed that Painter

just wanted to meet with him because he was running for Parish President and

wanted to discuss his candidacy or a possible endorsement. Clouatre explained

that when he met with Painter at his office at Hughes Insurance Services, he

recorded the conversation because he was suspicious of Painter and believed that

Painter was secretly recording him. After the meeting, Clouatre called Petite to tell

him about the meeting with Painter. When Petite asked what Painter had to say,

Clouatre told him that he had recorded the meeting with Painter and provided the

recording to Petite. Clouatre denied that Cointment knew that he was going to

meet with Painter, knew he planned to record the meeting, knew he had in fact

recorded the conversation with Painter, asked him to give the recording to Petite,

knew that he gave the recording to Petite, or asked him to have the recording

edited or published.
Clouatre testified that when he heard that Petite was going to

release the audio recording, he contacted Cointment and told him that he was the

one who made the recording and asked him to try to stop Petite from releasing it.

Clouatre believed that Cointment did ask Petite not to publish the recording, but

Petite refused. Clouatre testified that he had no knowledge of anything Cointment

had done in furtherance of the alleged conspiracy in support of his campaign for
Parish President.

Petite' s Deposition

Petite testified that he owns and operates the Pelican Post News, an online

blog in Ascension Parish with what Petite described as " a very politically -attuned

readership," and he also works on: political campaigns as a consultant. Petite

testified that after hearing rumors that Painter may be planning to run for Parish

President, he invited him to meet for lunch in October of 2018. Petite denied

telling Painter at their lunch meeting that he was working for Cointment' s

campaign, explaining that while he anticipated that he would at least get some

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advertising work out of the Cointment campaign, he had not been engaged as a

political consultant for Cointmentt at that time. Petite also denied ever telling

Painter that he had authority from Cointment to offer him a position in the

Ascension Parish government or that he threatened him if he did not accept the

offer. When asked about Painter' s allegation that Petite responded on Cointment' s

behalf when Painter texted Cointment in January of 2019 requesting a meeting,

Petite explained that Cointment asked for his advice about whether to meet with

Painter, since Cointment did not know why Painter wanted to meet with him, and

Petite offered to contact Painter to try to determine the purpose of the proposed

meeting. Petite testified that Clouatre came to his house and played the audio

recording for him after meeting with Painter in February 2019. He testified that

Clouatre transferred the recording to his phone somehow, but he did not know how

to access the recording and did not do anything with the recording until closer to

the election, when he began considering whether it could be useful in his work as a

political consultant. Petite testified that he did not know when or how Cointment

became aware of the audio recording, but he testified that he never played any part

of the recording for Cointment, and Cointment was not involved in his decision to

share the recording with Babin. According to Petite, Cointment did contact him at

some point on Clouatre' s behalf to ask him not to publish the audio recording, but

Petite declined and published the recording anyway because he felt that it was

newsworthy and that " the voting public of [ Ascension] Parish needed to

understand what Mr. Painter is capable of." Petite acknowledged that his cell

phone records showed that he had multiple phone conversations with Cointment

and Clouatre around the dates of Petite' s meeting with Painter, Clouatre' s meeting

with Painter, and the publication of the Pelican Post News story; however, Petite

was adamant that Cointment had no involvement and certainly had no decision-

making authority on the recording, editing, or publishing of the audio recording.

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Hughes' s Deposition

Brett Hughes, the owner of Hughes Insurance Services, L.L.C., testified that

he had no information whatsoever that Cointment conspired with Clouatre or Petite

to record Painter, to edit the recording, or to publish the edited recording. Hughes

acknowledged that phone records showed several calls by Cointment to his office

in 2018 and 2019; however, he testified that he did not recall ever speaking to
Cointment and noted that he supported Painter in the 2019 election.

Bahin' s Deposition

District Attorney Babin testified that Petite delivered the edited audio

recording of Painter to his office sometime around June of 2019, and after listening
to the recording, Babin forwarded it to the state police because it contained

allegations of "
some type of coverup by some law enforcement agency." Babin

denied that he conspired with Clouatre, Petite, or Cointment to defame Painter, and

further testified that he made it clear to Painter and to the press that Painter was not

a target of any investigation by his office.

Marchand' s Deposition

Marchand testified that he was contacted by Petite to edit the audio

recording into various clips of Painter' s statements, removing Clouatre' s voice

entirely from the recording. In working with Petite on this project, Marchand did

not recall ever discussing anything specific to Cointment' s campaign. Marchand

testified that, prior to Petite' s publication of the recording, he asked Cointment

whether he had ever heard the recording, and Cointment told him that he had not.

Marchand further testified that he did not have any information whatsoever to

indicate that Cointment was aware or had conversations with Clouatre about

making the recording before it was made or was involved in the decision to publish

the recording.

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Painter' s Affidavit

Painter' s affidavit, filed in opposition to the motions for summary judgment,

contained essentially the same allegations as his deposition regarding Petite' s

threats and statements that he was acting on authority from Cointment and

Clouatre' s motivation as a supporter of Cointment' s campaign to secretly record

him.

Petite' s Affidavit

Petite' s affidavit, filed by Painter in opposition to the motion for summary

judgment, stated that Marchand edited the audio recording of Painter published on

the Pelican Post News at his ( Petite' s) request.

Trial Court Ruling

Following a hearing on Cointment' s motion' on November 28, 2023, the

trial court issued a judgment dated December 28, 2023, granting Cointment' s

motion for summary judgment and dismissing Painter' s claims against Cointment

with prejudice. The trial court prepared lengthy written reasons for judgment, in

which it explained:

Murphy Painter argues that the telephone calls on February 6
and 7, 2019 are circumstantial evidence of a plan to secretly record
the February 7, 2019, conversation. Mr. Painter further argues that
the . October 17 and 18, 2019, telephone calls are circumstantial

evidence of a plan to alter the February 7, 2019, audio recording and
publish the altered audio recording on October 18, 2019.

In [Jenkins v. Arbors on the Lake Apartments, 2021- 01662, p. 5
La. 3/ 22/ 22), 334 So. 3d 746, 750],
a case involving a motion for a
summary judgment pursuant to Louisiana Code of Civil Procedure
Article [ 966( D)( 1)], the supreme court stated: " If circumstantial
evidence is relied upon, that evidence, taken as a whole, must exclude
every other reasonable hypothesis with a fair amount of certainty."

Movers] argue that the evidence offered in support of the

motions for a summary judgment is direct evidence that proves:

1. Dustin Clouatre acted alone in secretly recording the February 7,
2019, meeting.

There were also motions for summary judgment filed by Hughes Insurance Services, L.L.C. and Clouatre before
the court at this hearing; however, those motions are not at issue in this appeal.

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2. Dustin Clouatre and Clint Cointment did not conspire with Wade
Petite to edit the February 7, 2019, audio recording.

3. Dustin Clouatre and Clint Cointment did not conspire with Wade
Petite to publish the edited audio recording and accompanying
article on October 18, 20 9.

4. Wade Petite acted alone in providing the unedited recording to
District Attorney Ricky Babin.

There is no direct evidence [ that] Clint Cointment conspired
with Dustin Clouatre and Wade Petite to defame Murphy Painter. The
only evidence produced by Murphy Painter [ is] the telephone calls
between Dustin Clouatre, Clint Cointment[,] and Wade Petite on
February 6 and 7, 2019, as well as the telephone calls on October 17
and 18, 2019. Murphy Painter argues that these telephone calls are
circumstantial evidence that: Clint Cointment conspired with Dustin
Clouatre and Wade Petite. However, this circumstantial evidence,
taken as a whole, does not exclude with a fair amount of certainty
that:

1. Clint Cointment did not have prior knowledge that Dustin
Clouatre would meet with Murphy [ Painter] and secretly record
the meeting.

2. Clint Cointment did not have prior knowledge that Dustin
Clouatre would give the audio recording of the meeting to
Wade Petite.

3. Clint Cointment did not have prior knowledge that Wade Petite
would have the audio recording edited.
4. Clint Cointment asked Wade Petite not to publish the audio

recording on October 18, [ 2019].

5. Clint Cointment did not have prior knowledge that Wade Petite
would give the unedited audio recording to District Attorney
Ricky Babin.

For this reason, Murphy Painter has failed to produce factual
support sufficient to establish the existence of a genuine issue of
material fact whether Clint Cointment conspired with Dustin Clouatre
and Wade Petite to defame Murphy [ Painter]. Accordingly, the
motion for a summary judgment filed by Clint Cointment raising the
defense that Murphy Painter cannot prove that Clint Cointment
conspired to defame Murphy Painter is granted. Clint Cointment is
dismissed with prejudice.

Painter appealed, urging that the trial court erred in granting the summary

judgment and dismissing his claims against Cointment.

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DISCUSSION

A ruling on a motion for summary judgment is reviewed under the de novo

standard, 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. C©rbajal v. Chris Owens French Quarter Parade,

LLC, 2024- 00191, p. 3 ( La. 5/ 21/ 24''.), 385 So. 3d 236, 237- 38. 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, he is not required to negate all essential elements of the

adverse party' s claim, action, or defense; instead, the mover must 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. 966( D)( 1).

The only documents that may be filed or referenced in support of or in
opposition to a motion for summary judgment are pleadings, memoranda,

affidavits, depositions, answers to interrogatories, certified medical records,

certified copies of public documents or public records, certified copies of insurance

policies, authentic acts, private acts duly acknowledged, promissory notes and

assignments thereof, written stipulations, and admissions. La. C. C. P. art.

966( A)( 4).(a). The court shall consider only those documents filed or referenced

in support of or in opposition to the motion for summary judgment but shall not

consider any document that is excluded pursuant to a timely filed objection. Any

objection to a document shall be raised in a timely filed opposition or reply

3 Pursuant to La. C.C. P. art. 966( A)(4)( b), any of the documents listed in La. C. C. P. art. 966( A)(4)( a) that were
previously filed into the record of the cause may be specifically referenced and considered in support of or in
opposition to a motion for summary judgment by listing with the motion or opposition the document by title and
date of filing.

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memorandum. The court shall consider all objections prior to rendering judgment

and shall specifically state on the record or in writing whether the court sustains or

overrules the objections raised. La. C. C. P. art. 966( D)( 2).

When a motion for summary judgment is made and supported, an adverse

party may not rest on the mere allegations or denials of his pleadings, but his

response, by affidavits or otherwise, must set forth specific facts showing there is a
genuine issue for trial. La. C. C. P. art. 967( B); Corbajal, 2024- 00191 at p. 4, 385

So. 3d at 238. Once a motion for summary judgment has been properly supported

by the moving party, the non-moving party' s failure to produce evidence of a

material factual dispute mandates the granting of the motion. Corbajal, 2024-

00191 at p. 4, 385 So.3d at 238.

The applicable substantive law determines materiality, so whether a

particular fact in dispute is material can be seen only in light of the substantive law

applicable to the case. Stricker v. Greater New Orleans Expressway Commission,

2024- 0357, p. 6 ( La.App. 1 Cir. 11/ 22/ 24), --- So. 3d ---, ----

Painter' s claim against Cointment is that he participated in a conspiracy with

Clouatre and Petite to publish defamatory statements about Painter. Louisiana

Civil Code Article 2324( A) provides that "[ h] e who conspires with another person

to commit an intentional or willful act is answerable, in solido, with that person,

for the damage caused by such act." To prove a conspiracy, a plaintiff must prove

that: 1) an agreement existed with one or more persons to commit an illegal or

tortious act; 2) the act was actually committed; 3) the act resulted in the plaintiff' s

injury; and 4) there was an agreement as to the intended outcome or result.

Ferguson v. Gates, 602 F. Supp.3d 942, 954 ( W.D. La. 2022). However, Article

2324 does not by itself impose liability for a civil conspiracy. The actionable

element in a claim under La. C. C. art. 2324 is not the conspiracy itself, but rather

the tort, which the conspirators agreed to perpetrate and which they actually

M

commit in whole or in part. , Tones v. Americas Insurance Co., 2016- 0904, p. 8

La.App. 1 Cir. 8/ 16/ 17), 226 So. 3d 537, 543. In order to recover under this theory

of liability, a plaintiff must prove that an agreement existed to commit an illegal or

tortious act that resulted in the plaintiff' s injury. The plaintiff must establish that

there was an agreement as to the intended outcome or result. Butz v. Lynch, 97-

2166, p. 6 ( La.App. 1 Cir. 4/ 8/ 98), 710 So. 2d 1171, 1174, writ denied, 98- 1247

La. 6/ 19/ 98), 721 So.2d 473.

The intentional tort alleged by Painter in this matter is defamation.

Defamation is a tort involving the invasion of a person' s interest in his or her

reputation and good name. Kennedy v. Sheriff ofEast Baton Rouge, 2005- 1418, P.

4 ( La. 7/ 10/ 06), 935 So. 2d 669, 674. Four elements are necessary to establish a

claim for defamation: 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. Id.

The evidence offered in support of Cointment' s motion for summary

judgment was that Cointment was not aware of Clouatre' s plan to record the

conversation with Painter and was not involved in any decision-making regarding

the editing or publishing of the recording. As noted by the trial court, Painter

offered no direct evidence that Cointment had any sort of agreement with Clouatre

and Petite to defame Painter. The only evidence offered by Painter in opposition to

Cointment' s motion for summary judgment was circumstantial, i.e., the fact that

there were telephone calls made between Cointment, Petite, and Clouatre around

the times the audio recording was made and was published.

Circumstantial evidence may establish the existence of a genuine issue of

material fact to defeat summary judgment; however, the response of the adverse

party must set forth specific facts showing a genuine issue of fact exists. Wilson v.

Reed, 2022- 0099, p. 3 ( La.App. 1 Cir. 10/ 21/ 22), 354 So. 3d 42, 45. Although

17

factual inferences reasonably drawn from the evidence must be construed in favor

of the party opposing the motion, mere conclusory allegations, improbable

inferences, and unsupported speculation will not support a finding of a genuine

issue of material fact. Id., 2022- 0099 at p. 4, 354 So.3d at 45. As noted by the

trial court, if circumstantial evidence is relied upon, that evidence, taken as a

whole, must exclude every other reasonable hypothesis with a fair amount of

certainty. Jenkins, 2021- 01662 at p. 5, 334 So. 3d at 750. Following our de novo

review of the evidence offered in; support of and in opposition to Cointment' s

motion for summary judgment, we find that Painter' s evidence consisted of mere

conclusory allegations, improbable inferences, and unsupported speculation, which

will not support a finding of a genuine issue of material fact as to whether

Cointment conspired with others to defame Painter. Accordingly, Painter failed to

satisfy his burden to defeat summary judgment and his claims against Cointment

were properly dismissed.

CONCLUSION

For the reasons set forth herein, the summary judgment dismissing Murphy

Painter, Sr.' s claims against Clint (' ointment, with prejudice, is affirmed. Costs of

this appeal are assessed to Murphy Painter, Sr.

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