Jacqueline Cook VS American Gateway Bank and Glen Daigle
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0295 JACQUELINE COOK VERSUS AMERICAN GATEWAY BANK AND GLEN DAIGLE Judgment Rendered September 10 2010 Appealed from the 18th Judicial District Court In and for the Parish of West Baton Rouge State of Louisiana Case No 35 561 The Honorable William C Dupont Judge Presiding Benn Hamilton Baton Rouge Louisiana M Lenore Feeney Baton Rouge Louisiana Counsel for PlaintiffAppellant Jacqueline Cook Counsel for DefendantsAppellees American Gateway Bank and Glen Daigle BEFORE CARTER C GAIDRY AND WELCH JJ J A PeU GAIDRY I A former employee of a bank appeals a summary judgment dismissing her claims for damages against her former employer and her former supervisor for defamation intentional infliction of emotional distress negligent misrepresentation and other alleged wrongful acts For the following reasons we affirm the summary judgment FACTUAL AND PROCEDURAL BACKGROUND The plaintiff Jacqueline Cook was employed as assistant branch manager at the Port Allen Louisiana branch of American Gateway Bank the bank Prior to her promotion to that position on June 13 2005 she was the branch vault teller Her supervisor was Glen Daigle the bank branch s s manager Although her new job duties did not include operating the main vault and maintaining its contents plaintiff continued to perform the vault s teller duties while the new vault teller Elaine Canezaro was on extended family leave and for a period of time after her return to work The duties of the vault teller included preparation of shipments of currency to the Federal Reserve Bank While acting as vault teller plaintiff prepared a shipment of 00 000 72 in currency for delivery by courier to the Federal Reserve Bank on June 21 2005 On June 22 2005 the shipment was returned by courier from the Federal Reserve Bank for noncompliance with its packaging and labeling rules By that time Ms Canezaro had returned to her duties as vault teller As she had not prepared the shipment she declined to sign the receipt accepting delivery and plaintiff signed for the shipment and placed the money in her coin vault of her teller drawer pending its reprocessing for shipment PA On June 28 2005 or about a week after the shipment of currency had been returned to the bank Ms Canezaro happened to mention that fact and the reason for the return to Jacqueline Smith the bank district manager s who was working at the branch office that day The same day two other employees advised Ms Smith that a ticket or accounting entry for the returned 72 shipment had not been received for entry in the 00 000 s branch general ledger Ms Smith and Mr Daigle then went to the main vault to audit the returned shipment but were informed by Ms Canezaro that the money had been placed by plaintiff in her coin vault As plaintiff had left early that day it was necessary for Ms Smith and Mr Daigle to retrieve a duplicate set of keys from a lock box in the main vault to open s plaintiff coin vault The returned shipment was found in plaintiff coin vault s The shipment was contained in four sealed clear bags permitting counting of the banded packages of currency without opening the bags One bag still bore the original shipment date two bore the following week scheduled date of s shipment and one had no date The latter bag contained ten dollar bills Ten dollar bills were banded for shipment to the Federal Reserve Bank in packets or straps of 100 bills with ten straps making up one brick Half of a tenstrap brick was missing from that bag a fact obvious from a simple visual inspection and comparison with another complete brick The total amount of missing currency was 5 00 000 Upon discovering that 5 was missing from the returned 00 000 00 000 72 shipment Ms Smith and Mr Daigle instituted a search for the missing funds beginning with plaintiff teller drawer Upon opening the s teller drawer they observed a fivestrap half brick of ten dollar bills resembling the other in the coin vault and bearing the original shipment 3 delivery date stamped on it They originally believed that the missing 00 000 5 had been found but upon auditing the balance of plaintiff teller s drawer they discovered that the total amount of money balanced with the recorded balance 1 The bank had written Cash Procedures that included a teller drawer maximum cash limit policy under which the maximum amount of cash that any employee employed over six months could keep in a teller drawer was 00 000 27 or 28 The following day Ms Smith and Mr Daigle 00 000 met with plaintiff and discussed the situation They again audited her teller drawer in her presence with the same result They also advised her that the returned shipment in her drawer coin vault was short 5 but s 00 000 plaintiff denied any knowledge of its whereabouts Ms Smith also confronted plaintiff about keeping more money in her coin vault than was permitted by the teller drawer maximum cash limit policy as well as s plaintiff failure to prepare general ledger entries or tickets for the returned 00 000 72 Plaintiff was then advised to turn in her bank keys and to go home and that she would be advised of the outcome of the investigation Ms Smith and another bank employee then opened each bag of the returned shipment and again counted the money They also conducted a thorough search of the branch premises but did not find the missing funds According to Mr Daigle plaintiff left a threatening telephone message for him the following morning to the effect that by the time she was finished with him he would not have a job The bank had a detailed written Teller Cash Outage Policy setting out the procedures to be 1 Including the half brick in the total plaintiff teller drawer should have held a s surplus of 5 above its recorded balance If the 5 half brick in fact 00 000 00 000 came from the returned 72 shipment then plaintiff teller drawer was short 00 000 s 00 000 5 before the halfbrick was placed in it M followed including employee disciplinary action for various levels of cash shortages or losses outages For outages of 400 or more the 00 management had the discretion to impose discipline up to and including termination Mr Ricky Sparks the bank chief administrative officer s later made the decision to terminate plaintiff employment for violation of s the written outage policy Plaintiff was advised either that day or the next day that her employment was terminated The bank management also adhered to an unwritten internal s management policy requiring that an unexplained outage of approximately 00 500 1 or more be reported to law enforcement authorities for appropriate investigation The loss was thereupon reported to the Port Allen police department for investigation Detective Eric Frank was assigned the investigation He went to the bank where he met with Mr Daigle and other involved employees and reviewed the bank procedures Based upon his s investigation Detective Frank determined that probable cause existed for s plaintiff arrest On July 11 2005 he met with plaintiff at her home and arrested her Upon being placed under arrest plaintiff reportedly advised Detective Frank that bank policies had been broken and would come to light during a trial On August 31 2005 plaintiff was charged with felony theft Plaintiff filed suit on June 10 2006 naming the bank and Mr Daigle as defendants She alleged that she was arrested because Mr Daigle advised law enforcement officers that she stole 5 from the bank despite the 00 000 fact that no internal audit had been conducted and the absence of any witnesses to the theft She further claimed that Mr Daigle terminated her employment based upon the alleged theft and that the bank pursued her criminal prosecution for the charge of felony theft Plaintiff sought general 5 and special damages based upon d of character libel and efamation slander i infliction of mental anguish and emotional distress ntentional negligent misrepresentation and presentation of false information to law or enforcement agents and other alleged wrongs committed by defendants On July 5 2006 defendants filed their joint answer to plaintiff s petition generally denying its allegations and their liability They further affirmatively alleged that any statements made on their behalf concerning plaintiff were subject to a conditional or qualified privilege and that any such statements were true Defendants also pleaded plaintiff contributory s negligence and fault in failing to follow the proper procedures for handling money On August 15 2008 defendants filed a combined motion for summary judgment and peremptory exception of no cause of action seeking the dismissal of plaintiff claims Attached as exhibits to the motion were s the depositions of Mr Daigle and other bank employees the deposition of Detective Frank excerpts from the deposition of plaintiff and the affidavit of Mr Sparks Defendants motion and exception were originally fixed for hearing on October 15 2008 but the hearing was continued to November 12 2008 In opposition to the motion and exception plaintiff filed her own affidavit on October 24 2008 On the scheduled hearing date the trial court heard the motion and exception and took them under advisement for decision For reasons not apparent from the record the motion and exception were again heard and argument by counsel presented on February 11 2009 The trial court thereupon took the matter under advisement again for decision On August 25 2009 the trial court rendered and signed its judgment granting the motion for summary judgment in favor of the bank On August R 28 2009 defendants filed a motion to amend the summary judgment to reflect that the motion was also granted in Mr Daigle favor s On September 18 2009 the trial court signed an order amending the summary judgment as requested After plaintiff instituted this appeal we issued a Rule to Show Cause Order to the parties emphasizing that the judgment as amended lacked appropriate decretal language dismissing plaintiff claims s and therefore did not constitute a final appealable judgment On defendants motion the trial court signed another amended judgment on March 1 2010 adding the necessary decretal language Plaintiff now appeals contending that the trial court abused its discretion and committed an error of law in granting summary judgment and dismissing her petition and cause of action DISCUSSION Summary Judgment Summary judgment is subject to de novo review on appeal using the same standards applicable to the trial court determination of the issues s Peak Performance Physical Therapy Fitness LLC v Hibernia Corp 07 2206 p 5 La App 1st Cir 6 992 So 527 530 writ denied 08 08 2d 1478 La 10 992 So 1018 The summary judgment procedure is 08 3 2d expressly favored in the law and is designed to secure the just speedy and inexpensive determination of non domestic civil actions La C art P 2 A 966 Summary judgment is appropriate if the pleadings depositions answers to interrogatories admissions and affidavits in the record show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B The mover has the burden of proof that he is entitled to summary judgment See La C art 966 If the mover will not bear the P 2 C 7 burden of proof at trial on the subject matter of the motion he need only demonstrate the absence of factual support for one or more essential elements of his opponent claim action or defense s La C art P 2 C 966 If the moving party points out that there is an absence of factual support for one or more elements essential to the adverse party claim s action or defense then the nonmoving party must produce factual support sufficient to satisfy his evidentiary burden at trial La C art 966 P 2 C If the mover has put forth supporting proof through affidavits or otherwise the adverse party may not rest on the mere allegations or denials of his pleading but his response by affidavits or otherwise must set forth specific facts showing that there is a genuine issue for trial La C art 967 P B Because of their chilling effect on the exercise of freedom of speech defamation actions have been found particularly susceptible to summary judgment Kennedy v Sheri of E Baton Rouge 05 1418 p 25 La 06 10 7 935 So 669 686 Summary judgment being favored in the law 2d is a useful procedural tool and an effective screening device to eliminate unmeritorious defamation actions that threaten the exercise of First Amendment rights Id The Evidence Our prior summary of the factual background is derived from the depositions of Mr Daigle Ms Smith Ms Canezaro Detective Frank and plaintiff filed in the record by defendants in addition to the pleadings The evidence in the record also includes the following Detective Frank testified in his deposition that he made the decision to arrest plaintiff for the theft of the missing 5 based upon the totality 00 000 of the evidence discovered during his investigation including plaintiff s own statements to him According to Detective Frank plaintiff confirmed that E she personally packaged the original 72 shipment received the 00 000 shipment upon its return and repackaged the currency contained in the new bags found in her coin vault including the sealed bag missing 5 00 000 Her statements and those of the other employees interviewed indicated that she had the exclusive custody of the returned shipment from the time of its return until the loss was discovered by Ms Smith and Mr Daigle He confirmed that no one from the bank ever stated that plaintiff stole the missing funds nor did they express any opinion or suggestion that she was a suspect and that his belief that she was the likely suspect was based upon the facts revealed in his own investigation and his own conclusions based upon those facts In his affidavit Mr Sparks identified himself as administrative officer of the bank since 2005 the chief He confirmed that the bank had an unwritten internal policy requiring that any significant unexplained loss or outage of approximately 1 or more be referred for police 00 500 investigation after the bank had conducted its own internal investigation In line with that policy he directed another bank employee to contact the Port Allen police department Mr Sparks attested that he spoke with Detective Frank and stated that he was not asking that charges be pressed against anyone Mr Sparks also attested that after Detective Frank own s investigation was complete he told Mr Sparks that he suspected plaintiff had taken the missing funds and would be charged and that he then advised Detective Frank that neither he nor the bank nor other employees were asking or suggesting that such action be taken Mr Sparks confirmed that 2 Detective Frank also testified that he had personally investigated a prior incident at the same branch bank involving another loss of 5 Plaintiff was also involved in that 00 000 incident in which the sum was discovered to be missing from a transfer of funds from plaintiff to another bank employee According to Detective Frank no arrests were made in connection with that loss because the transferred funds had not been kept secure from access by other employees besides plaintiff and the recipient after the transfer was made E the missing 5 was never located Finally he affirmed that he made 00 000 the decision to terminate plaintiff employment for violation of the bank s s written outage policy relating to outages of 400 or more and the teller 00 drawer maximum cash limit policy and that such discipline was appropriate for conduct resulting in a 5 loss 00 000 In her affidavit plaintiff recounted her version of various events leading up to her termination Although differing in minor details from the versions of events set forth in the other employees depositions her account accorded with them in most relevant respects Plaintiff confirmed that she was terminated by Mr Sparks not Mr Daigle for violation of the bank s written outage and teller drawer maximum cash limit policies However she denied in her affidavit that she stole or misplaced 5 from the bank 00 000 and further denied violating the bank written policies Finally she claimed s in her affidavit that Detective Frank told her on the date she was arrested that Mr Daigle had stated that she must have taken the missing money since it could not be found and had been in her possession Defamation and Negligent Misrepresentation The centerpiece of plaintiff claims is her claim that defendants s defamed her Plaintiff also alleges that defendants are liable to her by reason of their n misrepresentation and presentation of false egligent or information to law enforcement agents Strictly speaking the tort theory of negligent misrepresentation is founded upon the following requisite elements 1 a legal duty on the defendant part to supply correct s information to the plaint 2 a breach of that duty and 3 damages to the plaintiff as a result of his justifiable reliance upon the misrepresentation Busby v Parish Nat Bank 464 So 374 377 La App 1st Cir writ l 2d denied 467 So 1132 La 1985 Emphasis added An action properly 2d 10 characterized as being based upon negligent representation is thus more akin to one based upon detrimental reliance Plaintiff claim therefore does s not represent a true claim for negligent representation which would require that the false or incorrect representation be made to her and that she justifiably rely upon it suffering damages thereby To the extent that plaintiff may have properly asserted a claim based upon defendants alleged negligent misrepresentation the elements of that claim would logically be subsumed within those of her related defamation claim as both are based upon the identical communications supposedly made by defendants and the same operative facts Accordingly the following discussion is pertinent to both the defamation and negligent misrepresentation claims Words that convey an element of personal disgrace dishonesty or disrepute are defamatory Costello v Hardy 031146 p 13 La 1 04 21 864 So 129 140 The question of whether the words convey a particular 2d meaning that is defamatory is ultimately a legal question Id Four elements are necessary to establish a claim for defamation 1 a false and defamatory statement concerning another 2 an unprivileged publication to a third party 3 fault negligence or greater on the part of the publisher and 4 resulting injury Kennedy 05 1418 at p 4 935 So at 674 Emphasis 2d added The element of fault is generally referred to in the jurisprudence as malice actual or implied Costello 031146 at p 12 864 So at 139 If 2d even one of those elements is found lacking the cause of action fails Kennedy 05 1418 at p 16 935 So at 681 2d In Louisiana defamatory words have been classified as either words that are defamatory per se or words susceptible of a defamatory meaning Costello 03 1146 at p 13 864 So at 140 2d 11 Words that expressly or implicitly accuse another of criminal conduct or that by their very nature tend to injure one personal or professional reputation even without s considering extrinsic facts or surrounding circumstances are considered defamatory per se Id 03 1146 at pp 13 14 864 So at 140 When a 2d plaintiff proves publication of words that are defamatory per se the elements of falsity and malice or fault are presumed but may be rebutted by the defendant Id 03 1146 at p 14 864 So at 140 When the words 2d are not defamatory per se a plaintiff must prove in addition to defamatory meaning and publication the elements of falsity malice or fault and injury Id In Louisiana privilege relating to a communication is a defense to a defamation action Kennedy 05 1418 at p 16 935 So at 681 2d Conditional privilege is an affirmative defense to a cause of action for defamation that must be affirmatively or specially pleaded in a defendant s answer See Costello 03 1146 at p 16 n 864 So at 142 n and La 13 2d 13 P C art 1005 The defense is founded upon the principle that as a matter of public policy in order to encourage the free communication of views in certain defined instances a person is sometimes justified in communicating defamatory information to others without incurring liability Kennedy 05 1418 at p 16 935 So at 681 citing Toomer v Breaux 146 So 723 2d 2d 725 La App 3rd Cir 1962 Privileged communications may be either 1 absolute such as statements by judges in judicial proceedings or legislators in legislative proceedings or 2 conditional or qualified Kennedy 05 1418 at p 16 935 2d So at 681 The basic elements of a conditional privilege are 1 good faith 2 an interest to be upheld 3 a statement limited in scope to that interest 4 a proper occasion for the communication of the statement and 12 5 publication in a proper manner and to proper parties only Id 05 1418 at p 17 935 So at 682 citing Madison v Bolton 234 La 997 1013 n 2d 7 102 So 433 439 n La 1958 2d 7 The analysis of whether a conditional privilege exists is a twostep process Kennedy 05 1418 at pp 1718 935 So at 682 First it must be 2d determined as a matter of law whether the circumstances in which a communication was made satisfy the legal requirements for invoking the conditional privilege Smith v Our Lady ofthe Lake Hosp Inc 93 2512 p 18 La 7 639 So 730 745 94 5 2d The second step requires a determination of whether the privilege was abused which requires a factual determination that malice or lack of good faith existed Id A good faith report to law enforcement officers of suspected criminal activity may appropriately be characterized as speech on a matter of public concern See Kennedy 051418 at p 9 935 So at 677 Louisiana courts 2d have recognized that the public has an interest in possible criminal activity being brought to the attention of the proper authorities and have extended a conditional privilege to reports made in good faith Id 051418 at p 19 935 So at 683 The conditional privilege is abused if the publisher a 2d knows the matter to be false or b acts in reckless disregard as to its truth or falsity Id 05 1418 at p 22 935 So at 684 2d In a case involving a private individual allegedly injured by a defamatory statement in a matter of public concern the applicable standard of fault or malice is the following One who publishes a false and defamatory communication concerning a private person is subject to liability if but only if he a knows that the statement is false and that it defames the other 13 b acts in reckless disregard of these matters or c acts negligently in failing to ascertain them Kennedy 051418 at p 15 935 So at 681 citing Restatement Second of 2d Torts 580B To establish reckless disregard of the truth a plaintiff must prove that the publication was deliberately falsified published despite the defendant s awareness of probable falsity or the defendant in fact entertained serious doubts as to the truth of his publication Kennedy 05 1418 at pp 28 9 935 2d So at 688 Even proof of gross negligence in the publication of a false statement is insufficient to prove reckless disregard under this standard Id 05 1418 at p 29 935 So at 688 Mere negligence in determining the 2d falsity of a statement or lack of reasonable grounds for believing it to be true is insufficient to prove abuse of the conditional privilege for communication of alleged wrongful acts to an official authorized to protect the public from such acts Id 05 1418 at p 22 935 So at 684 2d Plaintiff contends that there is genuine factual dispute as to whether the unwritten internal policy for reporting significant unexplained outages to law enforcement authorities actually existed and whether she violated either the written outage policy or the teller drawer maximum cash limit policy and that such dispute precludes summary judgment We disagree A fact is material when its existence or nonexistence may be essential to plaintiff s cause of action under the applicable theory of recovery Smith 93 2512 at p 27 639 So at 751 2d While the foregoing factual circumstances might conceivably be considered material for other purposes such as a claim for improper discharge they are only peripherally related to the issues presented in the context of this action The existence of the unwritten internal policy has no real relevance to the issue of whether plaintiff was defamed or 14 otherwise damaged by the bank reporting of the loss to the police And any s factual dispute regarding plaintiff violation of the bank operating policies s s has no bearing on the determination of the essential elements of her claim for defamation for allegedly being accused of theft Most of the remaining factual issues that plaintiff contends are genuinely disputed also relate to her violation of the bank policies and her s custody and responsibility for the returned currency issues that relate to her conduct rather than to the alleged conduct of defendants that forms the basis of her action Plaintiff actual guilt for theft or violation of her employer s s policies is not at issue for purposes of determining if summary judgment was appropriate what is at issue here is defendants liability to plaintiff under the theories of recovery alleged including their essential elements More importantly however plaintiff also insists that there remains genuine issue as to the material fact of whether any bank employee explicitly or implicitly stated that she stole the missing funds Again we disagree Plaintiff points to only one single communication from Mr Daigle that could arguably be considered a defamatory accusation of criminal conduct that being a purported statement made to her by Detective Frank that Mr Daigle told him that plaintiff must have taken the money since it could not be found and it was in plaintiff possession at all times s Detective Frank purported statement to that effect offered to prove the s truth of its contents was set forth only in plaintiff own affidavit s Unfortunately for plaintiff the described statement by Detective Frank reported in her affidavit is hearsay and is not admissible in evidence See La C arts 801 and 802 Louisiana Code of Civil Procedure article E C A 967 provides that s and opposing affidavits shall be made on upporting personal knowledge shall set forth such facts as would be admissible in 15 evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein Emphasis added Thus the hearsay statement may not be considered for purposes of summary judgment Significantly plaintiff primary argument is that in their written s statements provided to Detective Frank Mr Daigle Ms Smith and Ms Canezaro s nidely implicated thievery to the plaintiff without coming right out and saying so Those purported implicit accusations of theft are unidentified and based upon our review of the record unproven The employees statements are narrative accounts of the relevant circumstances and conversations among the involved bank employees including plaintiff following the return of the currency sent to the Federal Reserve Bank and the discovery of the missing funds there are no criminal accusations or suggestions of guilt expressions of opinion or references to stolen money or theft Even if Mr Daigle or another bank representative would have expressly described plaintiff as a possible suspect in the loss and characterized the loss as a theft and even if it is assumed that such a statement would have been defamatory per se and also procedurally admissible the statement would clearly have been privileged under the circumstances See Jalou II Inc v Liner 100048 p 12 La App 1st Cir 10 16 6 The 3d So depositions and affidavits filed on behalf of defendants affirmatively refuted plaintiff allegations of defamatory accusations by s other bank employees Plaintiff presented only her own affidavit in opposition to the defendants evidence In her deposition filed by defendants plaintiff admitted that she had no personal knowledge of the content of any communication from Mr Daigle or any employee agent or other representative of the bank to Detective Frank concerning her or the 16 missing money Thus her own sworn deposition testimony served to negate any personal knowledge on her part of any such communication in her affidavit Plaintiff having failed to establish a genuine issue of material fact relating to any communication of a non privileged defamatory statement or any malice on the part of defendants her cause of action for defamation must fail Summary judgment was appropriate as to her defamation claim and to the extent it might constitute a distinct claim her claim for negligent misrepresentation Intentional Infliction ofEmotional Distress False Imprisonment and Malicious Prosecution A plaintiff seeking damages for intentional infliction of emotional distress must establish three elements 1 that the defendant conduct was s extreme and outrageous 2 that the emotional distress suffered was severe and 3 that the defendant desired to inflict severe emotional distress or knew that severe emotional distress would be certain or substantially certain to result from his conduct Cortes v Lynch 021498 p 9 La App lst Cir 03 9 5 846 So 945 951 citing White v Monsanto Co 585 So 1205 2d 2d 1209 La 1991 The required conduct under the first element must be so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community White 585 So at 1209 2d The same legal considerations that justify the defense of conditional privilege for reports of suspected criminal activity also compel the conclusion that such a report made in good faith and founded upon reasonable suspicions simply cannot constitute extreme and outrageous conduct under the foregoing standard See e Taylor v Johnson 001660 g pp 45 La App 3rd Cir 4 796 So 11 14 writ denied 01 1486 01 18 2d 17 La 8 795 So 1212 01 31 2d Liability for intentional infliction of emotional distress does not attach where the defendant has done no more than to insist upon his legal rights in a permissible way even though he is aware that such insistence is certain to cause emotional stress White 585 2d So at 1210 Similarly liability cannot be based upon a privileged communication on a matter of public concern a good faith report of a suspected or possible criminal act as such reports should be encouraged as promoting the public interest in the suppression of crime and enforcement of the law Our de novo review of the record confirms that plaintiff utterly failed to meet her burden to establish any genuine issue of material fact tending to support a finding of extreme and outrageous conduct under the first element of the tort of intentional infliction of emotional distress That claim was thus appropriately dismissed As previously noted plaintiff alleged in her petition that she was arrested and charged with felony theft because of supposed statements provided to law enforcement by Mr Daigle that she stole 5 and that 00 000 the accusation was false In the prayer of her petition plaintiff claimed that she is entitled to damages by reason of defendants actions in causing her false arrest and imprisonment Our de novo review of the record demonstrates that plaintiff has failed to establish any genuine factual issue supporting a claim for false arrest and imprisonment against defendants The tort of false arrest or false imprisonment occurs when one arrests and restrains another against his will and without statutory authority Kennedy 05 1418 at p 32 935 So at 2d 690 There are two essential elements 1 detention of the person and 2 the unlawfulness of the detention Id It is undisputed that plaintiff was 18 never actually or constructively detained or restricted in her movements by defendants and that she was not arrested on the bank premises It is likewise clear from Detective Frank deposition that the decision to arrest s plaintiff was his alone and that neither Mr Daigle nor any other bank representative requested suggested or otherwise caused her arrest Summary judgment was appropriately rendered as to this claim as well See Kennedy 05 1418 at p 32 935 So at 689 90 Taylor 00 1660 at pp 45 2d 796 So at 13 14 and Mitchell v Villien 081470 pp 21 3 La App 4th 2d Cir 8 19 So 557 572 73 writ denied 09 2111 La 12 23 09 26 3d 09 11 3d So 923 Plaintiffs petition asserts a claim for malicious prosecution although that particular theory of recovery was never specifically identified by plaintiff as such She alleged that she was arrested and charged with elony heft f t primarily because of statements made and information given to law enforcement authorities by Mr Daigle She also alleged that the bank has pursued criminal proceedings against her which has sic required her to retain a criminal defense attorney Malicious prosecution actions have never been favored in our law and the plaintiff in such an action must clearly establish that the forms of justice have been perverted to the gratification of private malice and the willful oppression of the innocent Johnson v Pearce 313 So 812 816 2d La 1975 An action for malicious prosecution of a criminal proceeding such as that asserted by plaintiff here requires the following elements 1 the commencement or continuance of an original criminal proceeding 2 its legal causation by the present defendant against the plaintiff who was the defendant in the criminal proceeding 3 the bona fide termination of the criminal proceeding in favor of the present plaintiff 4 the absence of 19 probable cause for the criminal proceeding 5 malice and 6 damage to the plaintiff conforming to legal standards Miller v E Baton Rouge Parish s Sheriff Dept 511 So 446 452 La 1987 2d In a malicious prosecution action there must be malice in fact Id 511 So at 453 Malice may be inferred from lack of probable cause or a 2d finding of reckless disregard for the other person rights Id Our prior s observations as to the absence of malice in discussing plaintiff defamation s claim are relevant here In light of the undisputed facts in the record defendants adequately rebutted plaintiff conclusory allegations of malice s and plaintiff failed to affirmatively put forth competent evidence on that element of her malicious prosecution claim sufficient to defeat summary judgment Plaintiff has further failed to show that she can likely prevail as to the issue of causation for any claim of malicious prosecution Here the bank employees merely reported the substantial monetary loss to the police in accordance with the bank internal policy requiring such a report and the s police department thereupon conducted its own independent investigation In light of the uncontroverted deposition testimony of Detective Frank and Mr Daigle and the sworn statements in Mr Sparks affidavit any chain of s causation regarding plaintiffs subsequent detention was broken because he t decision to detain plaintiff was made by the independent actions and investigation of Detective Frank See Kennedy 05 1418 at P 32 n 935 20 2d So at 690 n See also Mitchell 081470 at pp 21 3 19 So at 572 20 3d 73 and Adams v Harrah Bossier City Inv Co L 41 pp 56 s C 468 La App 2nd Cir 1 948 So 317 320 writ denied 070639 La 07 10 2d 07 11 5 955 So 1281 Summary judgment was clearly appropriate as to 2d 20 any malicious prosecution claim as well as the defamation and related claims See lalou II 100048 at pp 267 3d So at 3 CONCLUSION In summary defendants met their initial burden of establishing absence of factual support for essential elements of all of plaintiff various s claims thereby shifting the burden to plaintiff to show that summary judgment was inappropriate Plaintiff failed to put forth factual support sufficient to establish that she could probably meet her burden of proof at trial on essential elements of her claims of defamation intentional infliction of emotional distress and negligent misrepresentation as well as those for any claims for false arrest and malicious prosecution Based upon our de novo review of the record it is our conclusion that the trial court did not err in rendering summary judgment in favor of defendants DECREE The summary judgment in favor of the defendants appellees American Gateway Bank and Glen Daigle dismissing the cause of action of the plaintiff appellant Jacqueline Cook is hereby affirmed All costs of this appeal are assessed to the plaintiffappellant AFFIRMED 3 Additionally we note that there is no evidence in the record showing that there was a bona fade termination of the criminal proceeding in plaintiff favor In her appellate s brief plaintiff asserts that the proceeding against her has not yet been set for trial 21
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