Robinson v. Goudchaux's

• Decision Date: 20 January 1975
• Docket Number: No. 54974,54974
• Citation: 307 So.2d 287
• Parties: Albert N. ROBINSON, Jr. v. GOUDCHAUX'S et al.
• Court: Louisiana Supreme Court

Page 287

307 So.2d 287

Albert N. ROBINSON, Jr. v. GOUDCHAUX'S et al.

No. 54974.

Supreme Court of Louisiana.

Jan. 20, 1975.

Dennis Raymond Whalen, Baton Rouge, for plaintiff-applicant.

Robert J. Vandaworker, Taylor, Porter, Brooks & Phillips, Baton Rouge, for defendants-respondents.

SUMMERS, Justice.

This is an action for damages for malicious prosecution based upon the fact that plaintiff was sued in a civil proceeding on an open account he had paid eight months before.

Albert N. Robinson, the plaintiff here, is a retired Captain in the Air Force, a former probation officer of the Family Court of Baton Rouge, and, at the time of the suit complained of, he was a graduate student in the School of Social Welfare at Louisiana State University. He purchased from Goudchaux's, a department store in Baton Rouge, a quantity of merchandise, mostly clothing, on open account between May 1968 and August 1968. The account amounted to $469.72.

No payments having been made on the account, the matter was referred, with others, to Goudchaux's attorneys as a delinquent account. The referral contemplated that demand for payment letters would be written to the debtor. A demand for payment letter was accordingly written to Robinson several days prior to April 19, 1969. Probably as a result of this demand, he paid $100 on April 29, 1969.

Another demand letter was written by the attorneys in early November 1969. When no further payments were received, the complete file on the account was forwarded by Goudchaux' to their attorneys on June 16, 1970 in order that suit could be instituted for collection. However, shortly thereafter, on July 6, 1970, Robinson sent his check to Goudchaux's for $369.72 in full payment of the balance due on the account. The fact of this payment was never communicated to Goudchaux's attorneys.

In due course, on March 15, 1971, that attorneys filed suit in the City Court against Robinson for $369.72, the amount shown to be due from the information and documents in the file. The suit was filed in the name of Fifteen-Fifty Realty Co., Inc., a corporation authorized to sue on behalf of Goudchaux's. When Robinson was served with the suit papers, he immediately contacted Goudchaux's, complaining that the account was paid, and he was informed that the suit would be dismissed immediately. A week went by and the suit was not dismissed. Robinson therefore retained counsel who filed an answer and reconventional demand against Goudchaux's and Fifteen-Fifty claiming damages for malicious prosecution.

Attorneys for Goudchaux's then immediately attempted to have the case dismissed in City Court, alleging that the account was paid in full. But the judge declined to do so in the belief that the reconventional demand prevented a dismissal of the primary suit. Whether because of the judge's refusal to dismiss or otherwise, the matter lingered in this state. While the suit was pending, Robinson was served with a notice that his deposition would be taken on October 6, 1971. A subpoena was also issued for him to produce at that time his income tax returns for the preceding four years and the estimate for the current year. The deposition, however, was never taken. Then, on October 8, 1971, Goudchaux's dismissed its suit and Robinson, at the same time, dismissed his reconventional demand.

On February 7, 1972 Robinson instituted the instant suit against Goudchaux's, Inc., Fifteen-Fifty Realty Co., Inc. and W. R. Hamblin, Goudchaux's credit manager at the time. (Hamblin was later dismissed as party defendant). The petition sought damages in the amount of $10,000 for malicious prosecution based upon the March 15, 1971 suit in the City Court.

After establishing the facts relating to the City Court suit, which are not disputed, Robinson testified in an effort to support the claim for damages. He said the City Court suit caused him considerable concern and worry. Because reference to that suit was contained in a credit report, his negotiations for a loan and the purchase of a house in Monroe were delayed for ninety days. In order to get this straightened out, it was necessary for him to make several trips to the Credit Bureau. An explanation had to be submitted to the mortgage company in Monroe in order to clear his application for the home loan, which was finally approved in the amount of $15,000.

In Eusant v. Unity Industrial Life Ins. Ass'n, 195 La. 347, 196 So. 554 (1940), this Court approved the following rule of law governing cases of malicious prosecution:

'An action for maliciously putting the law in motion lies in all cases where there is a concurrence of the following elements: (1) The commencement or continuance of an original criminal or civil judicial proceeding. (2) Its legal causation by the present defendant against plaintiff who was 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. (6) Damage conforming to legal standards resulting to plaintiff.'

Accepting these standards as the basis for this decision, we find all elements satisfied and essentially uncontested except the questions of probable cause, malice and damages.

As to probable cause, that element of a successful malicious prosecution suit is also satisfied. It was surely negligence on the part of Goudchaux's not to notify its attorney that the account placed in his hands for collection by suit had been paid in full. Eight months transpired after the payment until suit was instituted, giving Goudchaux's ample time to undertake the necessary administrative and accounting steps and cancel the attorney's authority for suit on the account. No explanation whatsoever was given by any representative of Goudchaux's explaining the reasons for this failure, other than its attorney, who testified to the procedure in his office only.

This is not a case where the suit against Robinson was instituted upon advice of counsel based upon a full disclosure of all facts. Action upon advice of counsel would mitigate the blame attributable to Goudchaux's. Cf. Buchert v. Schumacher, 166 La. 111, 116 So. 718 (1928); Mullen v. Gause, 161 La. 461, 109 So. 31 (1926). But these facts do not warrant such a conclusion; they represent a case in which the client completely failed to advise its attorney of the payment eliminating the indebtedness necessary to...