Owens v. Jackson

550 So. 2d 359, 1989 WL 116208
CourtLouisiana Court of Appeal
DecidedOctober 4, 1989
Docket88-586
StatusPublished
Cited by16 cases

This text of 550 So. 2d 359 (Owens v. Jackson) 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
Owens v. Jackson, 550 So. 2d 359, 1989 WL 116208 (La. Ct. App. 1989).

Opinion

550 So.2d 359 (1989)

Jack F. OWENS, Jr., Plaintiff-Appellant,
v.
Sheriff Thomas L. "Sonny" JACKSON, et al., Defendants-Appellees.

No. 88-586.

Court of Appeal of Louisiana, Third Circuit.

October 4, 1989.

*360 Gill Smith, Natchez, Miss., for plaintiff-appellant.

Nathan M. Calhoun, Vidalia, George Griffing, Jonesville, for defendant-appellee.

Before DOMENGEAUX, FORET and KING, JJ.

KING, Judge.

The issues presented by this appeal are whether the trial court was correct in dismissing plaintiff's suit with prejudice and whether damages should be awarded for a frivolous appeal.

Jack F. Owens, Jr. (hereinafter plaintiff) filed suit against Thomas L. "Sonny" Jackson, Sheriff of Catahoula Parish, Louisiana, and his attorney, George Griffing (hereinafter defendants), seeking damages for defamation and malicious prosecution allegedly caused by the defendants' filing a *361 lawsuit against him. Defendants both filed exceptions of no cause of action which were heard and sustained. Plaintiff was ordered to amend his suit, if he could, within ten days to remove the grounds of the objection pleaded by the exceptions under penalty of having his suit dismissed with prejudice. Upon plaintiff's failure to amend, defendants moved to dismiss his lawsuit and an order of dismissal was signed dismissing his lawsuit with prejudice. Plaintiff timely appeals. Defendant, Jackson, answered the appeal and seeks damages for a frivolous appeal. We affirm the dismissal of plaintiff's suit with prejudice but amend to award defendant, Jackson, damages for frivolous appeal.

FACTS

On September 15, 1986, defendant, Sheriff Thomas L. "Sonny" Jackson, through his attorney, defendant, George Griffing, filed a suit (hereinafter the Sheriff's suit) against plaintiff, Jack Owens, an attorney. The Sheriff claimed that Owens defamed him by filing five previous lawsuits against him. These five suits arose out of claims for wrongful seizure in two instances, a vehicular accident involving a Sheriff's Department vehicle, a death which occurred in the jail, and an alleged mistreatment of a prisoner in the jail.

In response to the filing of the Sheriff's suit, plaintiff filed this lawsuit seeking damages on September 15, 1987, exactly one year after the Sheriff's suit was filed, alleging that he was defamed by the defendants, as a result of the filing of the Sheriff's suit, and that the Sheriff's suit was malicious prosecution. Plaintiff also alleged that defendant, Jackson, made oral declarations in public that defamed him. Defendants each filed exceptions of no cause of action which were assigned to and fixed for hearing before Judge W.C. Falkenheiner in accordance with local court rules. Plaintiff then filed a motion to recuse Judge Falkenheiner because he had been recused in the Sheriff's suit between the parties and because the defendants were officers of the court. The motion to recuse was heard on December 9, 1987 by Judge Jimmie C. Peters of the Twenty-Eighth Judicial District Court, who denied the motion.

After Judge Peters had denied the motion to recuse, Judge Falkenheiner proceeded on the same day to hear defendants' exceptions of no cause of action. These exceptions were tried on the face of plaintiff's petition. Plaintiff alleged in his petition that:

"2.

Defendants have, over a long period of time, defamed your petitioner in the following particulars:
A. On or about September 15, 1986, the defendants did negligently and willfully conspire to file a malicious, vile and meritless suit against your petitioner alleging defamation of the Sheriff, Thomas L. "Sonny" Jackson as a result of the filing of five suits by petitioner on behalf of his clients. The suit filed by defendants on 9-15-86, was false, malicious, and done with wreckless [sic] disregard to the truth and without proper consideration and without probable cause. The stated purpose by defendants was to stop petitioner from pursuing his profession and to stop petitioner from filing any future claim against the Sheriff, regardless of merit. At all times, the claims filed on the five lawsuits were the claims of petitioner's clients and not that of their attorney of record and petitioner herein.
B. Petitioner further shows that defendant, Thomas L. "Sonny" Jackson has declared in public, that petitioner is responsible for filing five malicious suits against him, and has sued your petitioner in the suit dated 9-15-86, mentioned above. The defendant has made other varied and sundry defamatory remarks about your petitioner to third parties which will be more clearly designated at the trial of this matter."

Judge Falkenheiner sustained the defendants' exceptions of no cause of action and ordered the plaintiff to amend his petition to state a cause of action within ten days after the signing of the judgment maintaining the peremptory exception, and, if plaintiff *362 could not do so, ordered that plaintiff's suit would be dismissed with prejudice at his costs. A judgment on the hearing of the exception was signed on December 30, 1987. Plaintiff failed to amend his petition in compliance with the court's judgment. The trial judge, on defendants' motion on February 17, 1988, signed an order dismissing plaintiff's lawsuit with prejudice. Plaintiff timely appealed. Defendant, Jackson, answered the appeal seeking damages for frivolous appeal. We affirm the trial court insofar as it ordered the plaintiff's lawsuit dismissed, but amend to award damages to the defendant, Jackson, against the plaintiff for a frivolous appeal and render a judgment for the amount of the damages. As amended the judgment of the trial court is affirmed.

EXCEPTIONS OF NO CAUSE OF ACTION

The standard for sustaining an exception of no cause of action was set forth in Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 (La.1980), as follows:

"In ruling on the peremptory exception of no cause of action, the court must presume the correctness of the well pleaded allegations of fact in the plaintiff's petition, and must determine if the fact of the petition presents a case which legally entitles the plaintiff to the relief sought." Delta Bank & Trust Co. v. Lassiter, 383 So.2d 330 at page 336 (La. 1980).

Defamation and malicious prosecution are two distinct offenses. Lees v. Smith, 363 So.2d 974, 977 (La.App. 3 Cir. 1978). The essential elements for a claim for malicious prosecution 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.

See also, Lees v. Smith, supra; Eusant v. Unity Industrial Life Ins. and S. Benefit Ass'n, 195 La. 347, 196 So. 554 (1940); Jones v. Soileau, 448 So.2d 1268 (La.1984); Aucoin v. Aetna Casualty & Surety Co., 520 So.2d 795 (La.App. 3 Cir.1987).

Plaintiff's petition does not state a cause of action against either defendant for malicious prosecution. There is no allegation in the plaintiff's petition that the Sheriff's suit had been terminated.

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Bluebook (online)
550 So. 2d 359, 1989 WL 116208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-jackson-lactapp-1989.