Jones v. Soileau

Citation448 So.2d 1268
Decision Date27 February 1984
Docket NumberNo. 83-C-1966,83-C-1966
PartiesElsie Mae JONES v. Calvin SOILEAU.
CourtSupreme Court of Louisiana

Preston N. Aucoin, Gilbert Wayne Aucoin, Ville Platte, for applicant.

Richard W. Vidrin, Fruge & Vidrine, Ville Platte, Jonathan C. Harris, Baton Rouge, amicus curiae, for respondents.

DIXON, Chief Justice.

Elsie Mae Jones filed suit to recover damages from Calvin Soileau for the latter's alleged malicious prosecution of Jones on four counts of issuing worthless checks. The trial court rendered judgment in her favor and awarded her $25,000 in damages. The court of appeal reversed, finding that there was probable cause to prosecute in the original case. 435 So.2d 503 (La.App.1983). We reverse.

Jones is elderly, disabled and has a seventh grade education. She lives in Ville Platte on Supplemental Security income ($208.00 per month) and food stamps ($33.00 per month). Soileau owns Cal's Grocery in Ville Platte. He is the city marshal, now in his third six year term. In October of 1979, Jones requested that Soileau allow her to buy groceries each month on credit. He agreed to do so if she would sign a counter check provided by him from a local bank for the amount of the purchase. Then, when Jones received her SSI check, he would cash it at the store, and hold out the balance due, and return the checks. Soileau testified that he told her he would institute criminal proceedings if she failed to pay at the first of the month. Soileau called these checks "hold checks." Soileau's wife, who managed the store, testified that this system, as well as Soileau's traditional use of an account book, were simply ways of accounting for the purchases and charges of each credit customer.

Both parties testified that the question of whether Jones had an account at the bank never arose. Neither Soileau nor his employees ever filled in the space provided in the checks for an account number. No one ever asked her for one.

This system worked satisfactorily for several months. In February, 1980, however, Jones' gas bill was $145.00, and she was ill and required medication. She also used her privilege on February 27 at Soileau's store to get $100.00. Soileau charged her $10.00 interest for the last two days of February. She did not pay her February bill.

Some weeks later, Soileau deposited the checks. They were returned; there was no account as drawn. In May, 1980, he sent her demand notices. These notices were pre-printed, containing blanks for a name, date, amount of check and the reason for it not being honored. They stated that criminal charges would be filed if she did not pay within ten days. Soileau filled in the blanks and signed each form "Cal Soileau, City Marshal." The total amount of the four checks was $315.78.

Soileau then went to see Jones. She offered to pay him $30.00 a month. He insisted on being paid in full. Soileau also discussed the matter with the city judge in Ville Platte (with whom he worked as city marshal). According to Soileau, the city judge "transferred" the case to district court. 1 Soileau then went to Mr. Pucheu, the district attorney. After that, he talked to an assistant district attorney, Mr. Vidrine. Finally, on October 17, 1980, another assistant district attorney, Mr. Rozas, filed a bill of information charging Jones with four counts of issuing worthless checks in violation of R.S. 14:71.

Soileau's memory began to fail him when asked about his visits to first the city judge, then the district attorney, then his assistants. He remembered only that Pucheu told him that he had a good charge. Pucheu likewise had no recollection of the specifics of the meeting. Soileau testified that he would not have filed a formal complaint if he had not been told by the district attorney's office that the charge was a good one.

Trial was held some three weeks after the bill was filed. Counsel for Jones argued that the transaction involved an open account, not the issuing of worthless checks. The trial judge, however, ruled from the bench that the state had proved the elements of the crime beyond a reasonable doubt on three of the four counts. He dismissed one count because the check was signed by someone else "for Elsie Mae Jones." He sentenced Jones to ten days in jail on each of the three counts, the terms to run consecutively. In addition, he fined her $50.00 plus court costs. He suspended the sentence on the condition that she make restitution within ten days.

This court granted writs and reversed, finding the statute inapplicable because the transactions were in the nature of an open account. In addition, the court found insufficient proof of intent to defraud. State v. Jones, 400 So.2d 658 (La.1981).

In the present suit, the record of the criminal case was introduced into evidence, and the trial judge heard the testimony of both parties, Soileau's wife, and Pucheu. In his reasons for judgment, he referred to the previous conviction and sentence and the reversal by this court. He found a "wanton and reckless disregard" of Jones' rights by Soileau and that Soileau "failed to exercise the caution and inquiry required by law before filing criminal charges." Finding all the elements for the action to be established by the record, he awarded her $25,000 in damages.

The court of appeal reversed, holding that it would be anomalous to find that Soileau had no probable cause to file a complaint when the trial judge found Jones guilty beyond a reasonable doubt on three of four counts.

The jurisprudence of the state recognizes a civil cause of action, based on fault under C.C. 2315, in favor of one "whose liberty has been interfered with in an unwarranted manner." F. Stone, 12 La.Civil Law Treatise, Tort Doctrine, §§ 200-01, at 264-66 (1977). Like any other delict under C.C. 2315, such an "interference" must be based on fault of the defendant which causes the damage complained of in order for the plaintiff to recover. In Graf v. McCrory Corp., 368 So.2d 1217, 1218 (La.App.1979) (Lemmon, J.), the defendant refused to drop criminal charges unless the plaintiff would release it from civil liability. The court emphasized that the unreasonableness of the defendant's actions under these circumstances is the key to determining fault in a malicious prosecution case just as in any other case based on C.C. 2315-16. 2

Nevertheless, in Eusant v. Unity Industrial Life Ins., 195 La. 347, 351-52, 196 So. 554, 556 (1940), the court, quoting from an encyclopedia, stated that the elements of a malicious prosecution action are: (1) the commencement or continuance of an original criminal or civil judicial proceeding; (2) its legal causation by the present defendant in the original proceeding; (3) its bona fide termination in favor of the present plaintiff; (4) the absence of probable cause for such proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to plaintiff. This test has been reaffirmed by this court on several occasions, most recently in Hibernia National Bank v. Bolleter, 390 So.2d 842, 843 (La.1980). 3

The first three elements, the court of appeal found, are satisfied. The court of appeal reversed the trial court with respect to probable cause because of certain evidentiary presumptions which are controlling in other states. Jones v. Soileau, 435 So.2d 503 (La.App.1983). Citing an encyclopedia and the Restatement of Torts, it held that probable cause was conclusively established by the previous conviction unless fraud, perjury or other corrupt means are shown. Id. at 506. See also W. Prosser, Law of Torts, § 119, at 846 (4th ed. 1971).

The applicable principles for determining probable cause were nevertheless correctly cited by the court of appeal from Coleman v. The Kroger Co., 371 So.2d 1186, 1188 (La.App.1979), writ denied, 372 So.2d 1041 (La.1979). The crucial determination is whether Soileau had an honest and reasonable belief in the guilt of Jones at the time he pressed charges. Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901). In applying these principles, a court may take into account events subsequent to the filing of the criminal charge. These are, however, simply additional pieces of evidence which comprise the entirety of the circumstances which it is the court's duty to review. 4 A previous conviction is no more "conclusive" on this issue than is the subsequent reversal by this court or the subsequent finding of no probable cause by the trial court in the present proceeding. 5

In this case, the trial judge had the record of the criminal proceeding before him. In addition, he heard the live testimony of the parties and of their witnesses. Except for the "presumptions" adopted by the court of appeal, there could be no claim that he failed to give proper evidentiary value to the record of the criminal case.

Soileau must have known that Jones had no bank account. He conceived the scheme to provide himself with a credible threat for collection purposes. The facts could not have given rise to an honest and reasonable belief in the guilt of Jones. When the threat proved to be insufficient to obtain payment in full (she did offer to pay $30.00 a month), he began to take steps to make good on the threat by going from first one official to another to see about filing charges.

Louisiana courts have, however, extended a qualified immunity to a defendant who files charges after seeking the advice of an attorney. Johnson v. Pearce, 313 So.2d 812, 816 (La.1975); Eusant v. Unity Industrial Life Ins., supra. The immunity operates, however, only when the advice of the attorney is based on full disclosure of all facts. Eusant v. Unity Industrial Life Ins., supra. See also Bladg v. Giacomino, 170 La. 638, 128 So. 661 (1930).

In the present case, the trial judge must have concluded that such a full disclosure was not made and that Soileau did not seek advice in good faith. Bladg v. Giacomino, supra. Neither Soileau nor Pucheu remembered the...

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