Jones v. Soileau
| Decision Date | 21 June 1983 |
| Docket Number | No. 83-1,83-1 |
| Citation | 435 So.2d 503 |
| Parties | Elsie May JONES, Plaintiff-Appellee, v. Calvin SOILEAU, Defendant-Appellant. |
| Court | Court of Appeal of Louisiana — District of US |
Fruge & Vidrine, Richard Vidrine, Ville Platte, for defendant-appellant.
Preston N. Aucoin and Gilbert Aucoin, Ville Platte, for plaintiff-appellee.
Before DOUCET, YELVERTON and KNOLL, JJ.
This is an action for damages for malicious prosecution. The trial court rendered judgment in favor of the plaintiff, Elsie Jones, for $25,000. The defendant, Calvin Soileau, appealed. We reverse.
We find that plaintiff failed to prove one of the essential elements in a malicious prosecution case, an absence of probable cause. Before discussing this element, it is necessary that we recite the facts leading up to the criminal prosecution and the results of that prosecution.
In the fall of 1980 Elsie Jones approached Cal Soileau, proprietor of Cal's Grocery in Ville Platte, seeking to purchase groceries on a credit basis. She was living on Supplemental Security Income (SSI) and food stamps and seldom possessed ready funds with which to buy groceries. The defendant claimed that he denied Mrs. Jones credit but agreed to give her groceries in exchange for a check written for the amount of each purchase. Each check was supplied and filled out by Soileau or by one of his employees; the plaintiff merely signed her name. The counter checks supplied by Soileau happened to name the American Security Bank of Ville Platte as drawee. Soileau did not inquire as to whether the plaintiff had an account at that bank. She had no account at that or any other bank.
It was their understanding that Soileau would hold the checks until the end of the month. Then the plaintiff would pay her bill with money from her SSI check and Soileau would return her checks to her. Soileau's other credit customers were handled in much the same manner as the plaintiff. These accounts were kept on separate pages in a ledger book and inscribed as to the date and amount of purchase. At the end of each month, when payment was made, the page of the ledger bearing the account was removed and given to the customer as proof of payment. In plaintiff's case the checks were also returned as proof of payment. Soileau's wife testified that the checks were a method of accounting with regard to plaintiff's purchases, indicating the amount and date of purchase. Plaintiff was free to purchase under this agreement at will.
Soileau testified that he had informed the plaintiff that if she failed to make payment at the end of the month, he would process the check through the bank and then exercise his right to file criminal charges against her. The plaintiff denied that he ever informed her of this.
The plaintiff paid her debts to Soileau under this arrangement for the months of October, November and December of 1980 and January of 1981. She did not pay for her February 1981 groceries. Soileau sent her a demand letter advising that criminal charges would be filed if the payments were not received within ten days. The letter was signed by Cal Soileau. Underneath the signature appeared the title "City Marshall." Cal Soileau was in fact the city marshall for the Town of Ville Platte.
The plaintiff attempted to negotiate with defendant an arrangement to pay the debt on some kind of monthly installment. Soileau declined to negotiate and demanded payment in full. The record is unclear as to when these negotiations took place.
Soileau then filed misdemeanor charges against the plaintiff. The district attorney, apparently fully aware of the facts and after giving consideration to whether or not this was an open account transaction, accepted the charges. The district attorney testified at the malicious prosecution trial that he based his acceptance of the charges on his determination that the facts did not constitute an open account transaction.
Elsie Jones was charged by bill of information with four counts of issuing worthless checks, a violation of R.S. 14:71. She was tried in the Thirteenth Judicial District Court and convicted by the trial judge on three of the four counts. A 10 day jail term was imposed on each of the three counts to run consecutively, plus a fine of $50 plus court costs. The execution of sentence was suspended by the court on the condition that plaintiff make restitution to the complainant within 10 days.
At this point in the historical sequence of this narrative, the Louisiana Supreme Court granted supervisory writs to review the conviction and subsequently reversed plaintiff's conviction and sentence. See State v. Jones, 400 So.2d 658 (La.1981). The Supreme Court found that the credit arrangement between Soileau and Jones was clearly an open account and that by its express terms R.S. 14:71, issuing worthless checks, was not applicable to open accounts. The Supreme Court also found that the conviction was reversible for the additional reason that a rational trier of fact could not have found beyond a reasonable doubt that Mrs. Jones intended to defraud Soileau.
The present suit for malicious prosecution was then filed. It was tried and the judgment was rendered on September 29, 1982.
We now list the elements of proof required by the jurisprudence in order to recover damages for malicious prosecution in Louisiana. Six elements must be present concurrently. They are:
1. The commencement or continuance of an original criminal or civil judicial proceeding;
2. Its legal causation by the present defendant;
3. Its bona fide termination in favor of the present plaintiff;
4. The absence of probable cause for such proceedings;
5. The presence of malice; and
6. Damages.
Hibernia National Bank of New Orleans v. Bolleter, 390 So.2d 842 (La.1980); Robinson v. Goudchaux's, 307 So.2d 287 (La.1975).
Actions of this kind are disfavored, and a clear case must be established. Lees v. Smith, 363 So.2d 974 (La.App. 3rd Cir.1978).
The first three elements were clearly established: the defendant in this case caused the commencement of a criminal proceeding against plaintiff and the proceeding terminated in favor of plaintiff. See Culpepper v. Ballard, 344 So.2d 110 (La.App. 2nd Cir.1977). The disputed issues on appeal relate to the remaining three elements and the only one we find it necessary to discuss is absence of probable cause.
This element is explained in the case of Coleman v. Kroger Co., 371 So.2d 1186 (La.App. 1st Cir.1979), writ denied 372 So.2d 1041 (La.1979), as follows:
The probable cause element in a malicious prosecution suit requires both an honest and a reasonable belief in the guilt of the prosecuted party. Sandoz v. Veazie, 106 La. 202, 30 So. 767 (1901); Lees v. Smith, 363 So.2d 974 (La.App. 3d Cir.1978); Whittington v. Gibson Discount Center, 296 So.2d 375 (La.App. 2d Cir.1974); Cormier v. Blake, 198 So.2d 139 (La.App. 3d Cir.1967); Buisson v. Prestia, 45 So.2d 531 (La.App.Orl.Cir.1950). The determination of probable cause depends upon the particular facts of each case because the court must decide whether the circumstances were such...
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Jones v. Soileau
...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 Jones is elderly, disabled and has a seventh grade education. She lives in Ville Platte on Supplemental Security income ($208.00 per......
- Jones v. Soileau