Brimmer v. COPELAND ENT. INC.

609 So. 2d 847, 1992 WL 320102
CourtLouisiana Court of Appeal
DecidedOctober 27, 1992
Docket92-CA-413
StatusPublished
Cited by8 cases

This text of 609 So. 2d 847 (Brimmer v. COPELAND ENT. INC.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brimmer v. COPELAND ENT. INC., 609 So. 2d 847, 1992 WL 320102 (La. Ct. App. 1992).

Opinion

609 So.2d 847 (1992)

Brian BRIMMER
v.
A. COPELAND ENTERPRISES, INC. d/b/a Popeyes Famous Fried Chicken and Biscuits.

No. 92-CA-413.

Court of Appeal of Louisiana, Fifth Circuit.

October 27, 1992.
Rehearing Denied January 20, 1993.

*848 Robert Angelle, Metairie, for defendant-appellant.

Marlin N. Gusman, New Orleans, for plaintiff-appellee.

Before BOWES, GRISBAUM and CANNELLA, JJ.

GRISBAUM, Judge.

This appeal arises out of a malicious prosecution action. We reverse and set aside.

The pivotal question presented is whether the trial court erred, as a matter of law, in its finding that the defendant's employees acted in reckless disregard for the truth.

FACTS

On October 13, 1985, the Popeyes Restaurant on Veterans Highway in Metairie, Louisiana, was robbed at gunpoint by two black men. The robbery occurred after the store had closed for the night but while employees were cleaning up. The manager, Ms. Diane Stappers, called police who arrived shortly thereafter. She and other employees gave police information on the robbery.

Approximately 12 hours later, around noon on October 14, 1985, plaintiff, Mr. Brian Brimmer, entered the Popeyes Restaurant and ordered lunch. Ms. Stappers and another employee who had been present at the previous night's robbery noted the plaintiff's resemblance to one of the robbers and became alarmed. Ms. Stappers called the police, who arrived and arrested Mr. Brimmer.

Sometime around December, Mr. Brimmer learned the charges against him had been dropped. He then sued A. Copeland Enterprises, Inc. for malicious prosecution and defamation. After a judgment in his favor, defendant has appealed.

ANALYSIS

We are well guided by our jurisprudence, which provides 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 [a] proceeding; (5) the presence of malice therein; and (6) damage conforming to legal standards resulting to the plaintiff.

Jones v. Soileau, 448 So.2d 1268, 1271 (La. 1984) (citing Eusant v. Unity Indus. Life Ins., 195 La. 347, 351-52, 196 So. 554, 556 (1940)). "The crucial determination [in a malicious prosecution action] in regard to the absence of probable cause is whether the defendant had an honest and reasonable belief in the guilt of the plaintiff at the time charges were pressed." Stark v. Eunice Superette, Inc., 457 So.2d 291, 293-94 (La.App. 3d Cir.1984), writ denied, 461 So.2d 316 (La.1984) (citation omitted).

Additionally, our jurisprudence provides the following guidelines in determining whether a malicious prosecution action will lie:

*849 (1) Reasonable efforts by a citizen toward [the] suppression of crime, even where a simple mistake exists, do not automatically impose civil liability [for false imprisonment or malicious prosecution], if all the circumstances indicate the efforts were reasonable. The law should, and does, encourage citizens to report suspected criminal activity to the proper authorities.

Sapp v. J.A. West Co., 352 So.2d 268, 269 (La.App. 2d Cir.1977), writ refused, 353 So.2d 1337 (La.1978) (citation omitted);

(2) If one makes an identification honestly and without malice which is the basis for the arrest of another, the person arrested is not entitled to an award of damages when it is subsequently discovered that a mistaken identification has been made. Roche v. Aetna Casualty & Surety Co., 303 So.2d 888 (La.App. 1st Cir.1974), writ refused, 307 So.2d 372 (La.1975);
(3) "Malice exists where the charge is made with [the] knowledge that it is false or with reckless disregard for whether it is false or not.... A citizen is not guilty of malice for inaccurately reporting criminal conduct when there is no intent to mislead." O'Conner v. Hammond Police Dep't, 439 So.2d 558, 561 (La.App. 1st Cir. 1983) (citations omitted);
(4) Whether a defendant in a malicious prosecution action had probable cause to make the charge against the plaintiff does not depend merely on the actual state of facts but on the defendant's honest belief of the facts in making the charge. Carter v. Catfish Cabin, 316 So.2d 517 (La.App. 2d Cir.1975); and
(5) "A police officer who acts on the good faith identification of a witness has probable cause to act, and he is not guilty of malice even though the witness subsequently recants on the identification." O'Conner, supra, at 561.

The record contains the following testimonial evidence:

RHODES

Deputy George M. Rhodes, the arresting officer, testified first. He was a 14-year veteran of the police department. He answered the call made by Ms. Diane Stappers the day following the robbery, and proceeded to the Popeyes Restaurant. Two employees, Ms. Stappers and Ms. Varshaben Shah, advised him that a man whom they believed to be the perpetrator of last night's robbery was in the restaurant, and they identified him to the deputy. He took a voluntary, written statement from Ms. Shah at this time. To his knowledge, the employees did not tell anyone besides him. Deputy Rhodes considered them to be reliable witnesses. Their statements, taken separately of each other, corroborated each other's. Deputy Rhodes stated that eyewitness identification is one of the most reliable sources of information on which to base an arrest, and he based his probable cause to make an arrest on this eyewitness identification.

On cross-examination, Deputy Rhodes said that the defendant was not acting suspiciously and he did not resist arrest. When asked about the identification made by Ms. Stappers and Ms. Shah, he said that he thought they were both absolutely sure of the identification when they made it.

BRIMMER

Mr. Brian Brimmer testified that he is a life-long resident of Hahnville, Louisiana, and is employed at Union Carbide in Taft. He was in Metairie on October 14, 1985, for a doctor's appointment. His account of the arrest substantially corroborated that of Deputy Rhodes. Mr. Brimmer reported that Deputy Rhodes asked him to step outside the Popeyes Restaurant, whereupon the arrest was made out of the presence of the diners in the restaurant. He testified that, after bonding out of jail later that evening, he contacted an attorney, and he decided to leave the entire affair in the attorney's hands. He had no more contact with the Jefferson Parish Police Department. In December, he heard from a co-worker that the charges against him had been dropped.

SHAH

Ms. Varshaben Shah testified next. Even through the sterile, cold, printed record, it is apparent that she was very nervous *850 and quite scared to be testifying in court. Her fear was compounded by the fact that English was her second language. Her problems understanding the questions of the attorneys are apparent throughout her testimony.

She testified that she was working for Popeyes on October 13, 1985. She recalled the robbery that night and the fact that she was afraid during the robbery. When asked about Mr. Brimmer's appearance in the restaurant the next day, she replied that, at this time, she could not recall the events of the next day nor remember how she felt.

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Cite This Page — Counsel Stack

Bluebook (online)
609 So. 2d 847, 1992 WL 320102, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brimmer-v-copeland-ent-inc-lactapp-1992.