Edmond v. Hairford

• Decision Date: 08 February 1989
• Docket Number: No. 87-1171,87-1171
• Citation: 539 So.2d 815
• Parties: Christine Fontenot EDMOND, Plaintiff-Appellant, v. Ronald HAIRFORD, Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 815

539 So.2d 815

Christine Fontenot EDMOND, Plaintiff-Appellant, v. Ronald HAIRFORD, Defendant-Appellee.

No. 87-1171.

Court of Appeal of Louisiana,

Third Circuit.

Feb. 8, 1989.

Alex D. Chapman, Jr., Ville Platte, for plaintiff-appellant.

Guy Mitchell, Ville Platte, for defendant-appellee.

Before DOMENGEAUX, STOKER and DOUCET, JJ.

STOKER, Judge.

This is a tort action to recover damages resulting from the acts of defendant which caused plaintiff to be arrested and forced to furnish bond in order to be released from the custody of the sheriff of Evangeline Parish. The trial court rejected plaintiff's demand and rendered judgment in favor of defendant. We reverse and render judgment in plaintiff's favor.

Plaintiff and defendant were engaged in a lengthy and illicit relationship (defendant was married). On December 24, 1986 defendant gave plaintiff his gold watch to hold so that it would not be scratched or damaged while he stored some Christmas presents. Afterwards, defendant forgot about his watch. That evening plaintiff terminated the relationship. The next day, Christmas, defendant realized that plaintiff still had his watch and demanded its return within 24 hours or else he would file criminal charges against plaintiff. Defendant was a police officer at the time. On December 26, not having received his watch, defendant swore an affidavit for plaintiff's arrest, alleging she had committed theft of property valued over $500. Plaintiff was arrested on December 26, 1986 and subsequently released on bond. Prosecution against plaintiff was never initiated because defendant dropped the charges.

Plaintiff filed suit against defendant for damages. The trial court approached the case under a malicious prosecution theory of recovery and rejected plaintiff's claim. The trial court found that defendant had probable cause to believe that plaintiff intended to permanently deprive him of his watch and that there was a complete absence of malice on the part of defendant. The trial court did not consider any alternative theory of recovery. Plaintiff-appellant appeals the judgment of the trial court, assigning as errors the following:

1) The trial court was manifestly erroneous in its fact finding that defendant-appellee had probable cause for believing plaintiff-appellant had his wrist watch and had the intention of depriving him permanently of his property.

2) The trial court was manifestly erroneous in its fact finding that there was a complete absence of malice on the part of defendant-appellee.

3) The trial court failed to or erroneously applied the pertinent law for this case.

4) The trial court erred in not allowing into evidence the proffered rap sheet of defendant-appellee for impeachment of his trial and deposition testimony.

OPINION

ASSIGNMENTS 1 & 2

Plaintiff argues that the trial court's factual findings as to probable cause and malice were erroneous. After full review of the record, we conclude that the trial court's findings as to these issues are manifestly erroneous.

We find that defendant did not have probable cause to believe that plaintiff intended to deprive him of his wrist watch permanently. The applicable principles for determining probable cause were discussed in Jones v. Soileau, 448 So.2d 1268 (La.1984). The crucial determination is whether defendant had an honest and reasonable belief in the guilt of plaintiff at the time he pressed charges. In applying these principles, a court may take into account events subsequent to the filing of the criminal charge. Jones v. Soileau, supra, at 1272; Roche v. Aetna Casualty & Surety Co., 303 So.2d 888 (La.App. 1st Cir.1974), writ refused, 307 So.2d 372 (La.1975).

Defendant testified that plaintiff broke off their relationship on Christmas Eve. On Christmas Day, defendant realized that he had not recovered his watch. He telephoned plaintiff and demanded the return of his watch in 24 hours or else he would file criminal charges. Defendant testified that plaintiff never told him that she would not return the watch. Officer Leon Fontenot testified that on Christmas Day he telephoned plaintiff on defendant's behalf to ask for the return of the watch. Officer Fontenot stated that plaintiff replied she would return the watch and that he related this to defendant. Officer Lawrence Jack, the arresting officer, testified that defendant accompanied him to arrest plaintiff on December 26. Officer Jack further testified that in the police car on the way back to the police station he overheard defendant ask plaintiff why she never returned the watch, to which she replied she had intended to. The testimony indicates that defendant knew plaintiff intended to return his watch. Therefore, defendant could not have reasonably believed that plaintiff had committed theft of his watch when he swore to the arrest affidavit. The fact that plaintiff did not immediately return the watch on Christmas Day, which she spent with her children and family, is not indicative of an intent to steal defendant's watch. Therefore, the arrest affidavit was not supported by probable cause.

Malice is inferred when there is an absence of probable cause resulting from wanton and reckless disregard of the rights of the party sued, evincing absence of that caution and inquiry a party should employ before filing suit. Jones v. Soileau, supra, at 1273. Under the circumstances described above, which demonstrate that defendant did not have probable cause to believe that plaintiff intended to commit theft, malice is imputed to defendant. Moreover, most of the testimony in this case involved the nature of the parties' relationship, the reasons for its termination and defendant's attempts to win back plaintiff's affection and regard. The relationship was clearly a factor in defendant's decision to initiate plaintiff's arrest. Defendant misused the criminal process for his private ends.

ASSIGNMENT 3

Based on the allegations of her petition the trial court found that plaintiff sought recovery of damages based on malicious prosecution. The trial court did not consider other theories or bases for recovery. However, plaintiff's petition need not allege a specific cause of action or contain a prayer for general or equitable relief. LSA-C.C.P. art. 862. The "theory of the case" doctrine under which a litigant must select a theory of recovery or defense and adhere to it throughout the litigation has been suppressed in Louisiana. See LSA-C.C.P. art. 862 and Official Comments. Arceneaux v. Bellow, 395 So.2d 414 (La.App. 3d Cir.), writ refused, 400 So.2d 669 (La.1981); Cox v. Heroman & Co., Inc., 298 So.2d 848 (La.1974) and Poynter v. Fidelity & Cas. Co. of New York, 140 So.2d 42 (La.App. 3d Cir.1962). A court may grant relief to a party which the evidence justifies, and the court is not restricted to the relief prayed for. Gremillion v. Rapides Parish Police Jury, 430 So.2d 1362 (La.App. 3d Cir.), writs denied, 435 So.2d 426, 440 (La.1983). We find that the pleadings and evidence set forth a cause of action under Article 2315 of the Louisiana Civil Code.

With regard to the tort of malicious prosecution the trial judge correctly found that plaintiff failed to show the commencement or continuation of an original criminal proceeding, one of the six elements of tort. See Jones v. Soileau, supra. Plaintiff was arrested for theft of property valued over $500, which is punishable by imprisonment with or without hard labor. LSA-R.S. 14:67. The trial judge found that a criminal proceeding against plaintiff was not instituted because no information or indictment was ever filed. Therefore, the trial court properly held that plaintiff had not proven a case of malicious prosecution.

We have given thought to whether plaintiff's petition and the evidence present a case of false imprisonment. As a technical matter we doubt it. In a "false imprisonment," the arrest is made either without any legal process or warrant or under a warrant null and void on its face, while in a "malicious prosecution" the proceedings are had in pursuance of legal process, maliciously and wrongfully obtained. Barfield v. Marron, 222 La. 210, 62 So.2d 276 (1952). The tort of false arrest, or false imprisonment, has two essential elements: (1) detention of a person and (2) the unlawfulness of such detention. Touchton v. Kroger Co., 512 So.2d 520 (La.App. 3d Cir.1987). Malice is not a necessary element of the tort of false imprisonment and is immaterial except as it may affect the question of damages. Fontenot v. Lavergne, 365 So.2d 1168 (La.App. 3d Cir.1978).

The warrant issued by the magistrate in this case was not null and void on its face. Although the defendant falsely swore that plaintiff committed theft of his watch, simple inspection of the warrant and affidavit would not disclose the infirmity behind the issuance of the warrant. In a criminal matter, had there been a prosecution, the plaintiff would have been entitled to have the arrest warrant quashed. State v. Williams, 448 So.2d 659 (La.1984). Nevertheless, in the strict sense contemplated by our law, we doubt that defendant's action may be characterized as a false arrest or false imprisonment.

The fact that defendant's actions did not amount to malicious prosecution or false imprisonment is not fatal to plaintiff's cause. As we noted earlier, Article 2315 of our Civil Code is broad enough to cover the tortious conduct of defendant and justify recovery of damages.

The familiar and pertinent portion of Article 2315 (LSA-C.C. art. 2315) provides:

"Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

The Louisiana Supreme Court in Jones v. Soileau, supra, found malicious prosecution, but at page 1271 the Court discussed the application of Article 2315 which we find appropriate to consider:

" The jurisprudence of the state recognizes a civil cause of action, based on fault under C.C. 2315, in favor of one "whose...