Moity v. Richard

• Decision Date: 10 October 1985
• Docket Number: No. 84-727,84-727
• Citation: 476 So.2d 573
• Parties: Warren J. MOITY, Sr., Plaintiff-Appellant, v. Theresa Boudreaux RICHARD, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 573

476 So.2d 573

Warren J. MOITY, Sr., Plaintiff-Appellant, v. Theresa Boudreaux RICHARD, et al., Defendants-Appellees.

No. 84-727.

Court of Appeal of Louisiana Third Circuit.

Oct. 10, 1985.

Warren J. Moity, Sr., in Pro. Per.

James R. Shelton, Lafayette, Robert F. Dejean, Sr., Opelousas, for defendants-appellees.

Before DOMENGEAUX, FORET and YELVERTON, JJ.

FORET, Judge.

This is a suit for abuse of process. Plaintiff, Warren J. Moity, Sr., sought damages from defendants, Felix A. DeJean, III and Theresa Boudreaux, for having him subpoenaed and sequestered ¹. The sole issue before us is whether plaintiff proved that defendants' conduct in subpoenaing and sequestering him constituted abuse of process.

FACTS

Plaintiff, Warren J. Moity, Sr., was subpoenaed by Attorney Felix A. DeJean, III as a witness to appear at a child support and alimony rule set for hearing on December 18, 1970. The two parties to the rule were plaintiff's brother-in-law, Murphy Richard, and defendant, Theresa Boudreaux. Attorney DeJean was representing Theresa Boudreaux. Plaintiff was subpoenaed because of his knowledge of a debt, embodied in a note, which the marital community of Murphy Richard and Theresa Boudreaux allegedly owed to the estate of Richard's father. About a week before the trial, the matter of the note was settled, it being agreed that the note would not be introduced into evidence at the child support and alimony hearing. At this point, Attorney DeJean no longer had any need for plaintiff's testimony.

When plaintiff showed up in the courtroom the day of the child support and alimony hearing, he was sequestered along with all of the other witnesses. He was never called to testify. Plaintiff alleges that because of his sequestration, he missed a business meeting in New Orleans and, that as a result, he lost a "job" which would have paid him between $15,000 and $20,000.

ABUSE OF PROCESS

Plaintiff has alleged that at the time of the hearing defendants knew that they had no need for his testimony, but refused to release him from the subpoena as a means of harassing and embarrassing him. At the trial of the matter now before us, DeJean testified that after it was agreed that the note would not be used, he had informed Mr. Sykes, the husband's attorney, that he would not require plaintiff's presence at the rule. Plaintiff disputes this, but Sykes could not testify that he was not, in fact, so informed by DeJean. Although DeJean was aware of plaintiff's presence in the courtroom the day of the alimony and child support hearing, he testified that he assumed that plaintiff was in court on behalf of plaintiff's brother-in-law, and not in response to his subpoena.

The tort of abuse of process has two essential elements: the existence of an ulterior motive and a wilful act in the use of process not proper in the regular conduct of the proceeding. Vasseur v. Eunice Superette, Inc., 386 So.2d 692 (La.App. 3 Cir.1980); Stark v. Eunice Superette, Inc., 457 So.2d 291 (...