95-1269 La.App. 3 Cir. 7/17/96, Ducote v. City of Alexandria

Decision Date17 July 1996
Citation677 So.2d 1118
Parties95-1269 La.App. 3 Cir
CourtCourt of Appeal of Louisiana — District of US

Todd Lee Farrar, Ball, for Joseph Paul Ducote.

Eugene Joseph Sues, Alexandria, for City of Alexandria et al.

Before DOUCET, C.J., and KNOLL, THIBODEAUX, WOODARD, and GREMILLION, JJ.

[95-1269 La.App. 3 Cir. 1] WOODARD, Judge.

Joseph Paul Ducote filed a suit for conversion against the City of Alexandria and its general liability insurer. The court below found no liability on the City's part. Ducote appeals the trial court's judgment. For the following reasons, we reverse.

FACTS

On January 19, 1994, by a notarized bill of sale for $100.00, Joseph Ducote purchased from Kerry M. Guinn a 1986 Dodge Ram-50 truck, which Guinn's mother, Marsha Jane Guinn, had given Kerry by an act of donation. On January 28, 1994, Ducote stopped to wash the truck at an automated car wash, where an officer of the Alexandria City Police had been dispatched, pursuant to Ms. Guinn's complaint that her truck had been stolen. She had been looking for the truck hoping it would lead to her missing son. When she spotted the truck, she informed the police department of its whereabouts, and they promptly dispatched an officer to the car wash. Upon his arrival, he informed Ducote that the vehicle had been reported stolen. Ms. Guinn [95-1269 La.App. 3 Cir. 2] was there, as well. She showed the officer an application for a certificate of registration, dated January 28, 1994, which, it was learned at trial, she had obtained from the Department of Motor Vehicles (DMV) by presenting a forged act of donation from her son to herself. Ducote showed the officer his bill of sale, dated January 19, 1994, and proof of insurance as evidence that he had purchased the truck, and told him that he had applied for a title and was waiting for it to come in. Nevertheless, the officer tendered the vehicle to Ms. Guinn, since she had the most recent paperwork, and he thought Ducote's bill of sale might have been fraudulent. Obviously believing, at this point, that no crime had been committed, he did not arrest Ducote for theft. Instead, he advised him that this was a civil matter and that he should seek the advice of an attorney. It is also noteworthy that no criminal charges or report was ever filed on this matter.

Ducote filed suit against the Alexandria City Police, alleging that the seizure of his truck constituted a taking of property without due process of law. When the matter was tried on May 30, 1995, the trial judge dismissed his demands. He appeals this decision.

LAW

Appellate review of a question of law is simply a decision as to whether the lower court's decision is legally correct or incorrect. Phoenix Assur. Co. v. Shell Oil Co., 611 So.2d 709 (La.App. 4 Cir.1992). If the trial court's decision was based on its erroneous application of law, rather than on a valid exercise of discretion, the trial court's decision is not entitled to deference by the reviewing court. Kem Search, Inc., v. Sheffield, 434 So.2d 1067 (La.1983). In fact, when an appellate court finds that a reversible error of law or manifest error of material fact was made in the lower court, it must redetermine the facts de novo from the entire record and render a judgment on the merits. Rosell v. ESCO, 549 So.2d 840 (La.1989).

GOVERNMENTAL IMMUNITY--APPLICABILITY OF LA.R.S. 9:2798.1

Although the defendants did not raise immunity as a defense, we begin our review with that question, since it could be dispositive of the case. Under certain circumstances, La.R.S. 9:2798.1 provides immunity from liability for certain acts [95-1269 La.App. 3 Cir. 3] carried out by police officers in the course of their duties. The statute specifically states that:

Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policy-making or discretionary acts when such acts are within the course and scope of their lawful powers and duties. La.R.S. 2798.1(B) [emphasis added].

In the case before us, the defendant dispatched one of its officers pursuant to what should have been a highly suspect verbal complaint of a stolen vehicle. After arriving at the scene, the officer, acting under the direction of his superiors, compared Ducote's bill of sale to Ms. Guinn's application for registration. While he testified that he initially thought that the signatures on the bill of sale appeared to be fraudulent, he said that Ms. Guinn had told him that she had signed over the vehicle to her son, that her son had signed it back to her, and that he had found that to be suspect because it was not DMV's normal procedure. Yet, despite his suspicion of Ms. Guinn's assertions, he did not question her or check with the DMV. Presumably, a call to the DMV would have, inter alia, verified Ducote's application for title. Additionally, Ducote presented him with proof of insurance he had obtained on the truck, which the officer apparently ignored and did not inquire with the insurance company. At the very least, further inquiry to his own department should have put him on notice that: approximately the third week of January, Ms. Guinn had reported her son and "her" truck as missing and that another officer had told her that she could not report the truck as missing because it was not in her name; she returned to him a few days later with an application form for a certificate of registration on which she had designated herself as the owner; he never asked her if her son had returned and, if not, how she had obtained this document, purporting to title the truck from him to her after she had reported him missing; he arranged with Ms. Guinn to have an officer sent to the location of the truck once she discovered it; when the officer, with whom Ms. Guinn had made these arrangements, left the office, he apprised another officer of "what was going on" so that he could dispatch someone when Ms. Guinn called in. Apparently, none of this valuable information, raising serious questions concerning the validity of Ms. Guinn's paperwork, was ever [95-1269 La.App. 3 Cir. 4] communicated to the officer dispatched to the scene, when he was advised how to handle both parties' claim to the truck.

Once he determined that no crime was actually involved, the officer was correct in his advice to Ducote, that this was a civil matter. The problem was his next step, removing the truck from its rightful owner, Ducote, without legal authority to do so. We have found no authority for law enforcement to make civil judicial determinations regarding ownership or possessory rights of property.

Further, La.R.S. 9:2798.1(B) provides that:

Liability shall not be imposed on public entities or their officers or employees based upon the exercise or performance or the failure to exercise or perform their policymaking or discretionary acts when such acts are within the course and scope of their lawful powers and duties.

La.R.S. 9:2798.1 protects the government from liability only at the ministerial or policy making level. Fowler v. Roberts, 556 So.2d 1 (La.1989). Ministerial decisions or actions enjoy immunity only when they are discretionary and based on a consideration of public policy. Id. The court in Mathieu v. Imperial Toy Cor., 92-1182 (La.App. 4 Cir. 3/17/94), 632 So.2d 375, 380, writ granted, 94-0952 (La. 6/17/94), 638 So.2d 1075, reversed on other grounds, 94-952 (La. 11/30/94), 646 So.2d 318, stated:

This discretionary function exception to governmental liability applies only when a policy judgment is made at the ministerial level, not at the operational level. Fowler v. Roberts, 556 So.2d 1 (La.1989). The distinction between the two was recently demonstrated in Kniepp v. City of Shreveport, 609 So.2d 1163 (La.App. 2 Cir.1992), writ denied, 613 So.2d 976 (La.1993), where owners of property damaged in a riot asserted that police conduct caused their losses. The Court found that the police chief's order to withdraw from the area of the disturbance, leaving the plaintiff's stores exposed to damage by rioters, was a discretionary policy choice to protect life over property. Therefore, R.S. 9:2798.1(B) applied to shield that City from liability. No immunity was found, however, for the acts of the patrolmen who were first on the scene and whose conduct allegedly angered bystanders and led to the riot. Their decisions were operational, not based upon a balancing of social policy.

In the case sub judice, the officer clearly was acting at the operational level. His decision to deprive Ducote of his vehicle was not based on any balancing of [95-1269 La.App. 3 Cir. 5] social policy, but was a judicial decision as to ownership. It is just as clear that the officer (even if his actions were well intentioned) effected a conversion of plaintiff's vehicle. Under the facts of this case, such action by the officer, being operational in nature and not within the course and scope of his lawful power and duties, triggers no shield from immunity for the city. Id.

BAD FAITH; UNREASONABLE AND ARBITRARY; WITHOUT JUST CAUSE

By his first assignment of error, plaintiff contends that the trial court erred by applying an incorrect legal standard to the defendants' conduct. In his oral reasons for judgment, the trial judge stated that "the burden of proof is on the plaintiff to show that the officers engaged in this action acted unreasonable and arbitrary, and without good cause, and in bad faith really." Ducote contends that the trial court erred in requiring him to prove that the defendant acted in bad faith or acted unreasonably. We agree.

A conversion is defined as any wrongful exercise or assumption of authority over another's goods, depriving him of possession, permanently or for an indefinite time. One does not have to prove that the defendant...

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