The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
CA 12-873
DONALD DOMINGUE
VERSUS
PEGGY SUE WAGNER
**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20115709
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
**********
JOHN E. CONERY
JUDGE
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Court composed of John D. Saunders, Phyllis M. Keaty, and John E. Conery,
Judges.
AFFIRMED.
Diane Sorola
Attorney at Law
402 West Convent Street
Lafayette, Louisiana 70501
(337) 234-2355
COUNSEL FOR DEFENDANT/APPELLEE:
Peggy Sue Wagner
Adam G. Young
Attorney at Law
315 South College Road, Suite 163
Lafayette, Louisiana 70503
(337) 261-8800
COUNSEL FOR PLAINTIFF/APPELLANT:
Donald Domingue
Peggy Sue Wagner
In Proper Person
513 Brentwood Boulevard
Lafayette, Louisiana 70503
CONERY, Judge.
Plaintiff appeals a judgment of the trial court dismissing sua sponte, with
prejudice, his Petition for Damages based on a claim for civil malicious prosecution
without allowing Plaintiff the opportunity to amend his Petition to state a cause of
action. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
The parties to this litigation, Donald Domingue (Domingue) and Peggy Sue
Wagner (Wagner), were married on December 31, 2000, and were divorced by
Judgment on May 28, 2010. The divorce proceedings were acrimonious, and a
Judgment of Partition of Community Property was perfected on December 2, 2010.
That judgment was executed by the court on January 4, 2011.
On January 14, 2011, Wagner, on the advice of Chief of Police, Jim Craft,
(Police Chief Craft) filed a Temporary Restraining Order Petition (TRO Petition)
pursuant to La.R.S. 46:2134, the Protection from Family Violence Act, in the
Fifteenth Judicial District Court. Wagner claimed that Domingue was verbally
abusing her via the internet, including sending inappropriate e-mails to her friends at
their workplace; continuously calling and then blocking the calls; texting her friends
and children in an attempt to have Wagner contact him to renegotiate the partition
agreement; and threatening her with legal action if she did not acquiesce to his
demands.
Wagner also claimed that Domingue was stalking her and that she was afraid he
would show up at her workplace functions and cause a scene. Domingue was aware
of Wagner’s schedule, as evidenced in his e-mails, and Wagner claimed that
Domingue had recently appeared at a restaurant where she was dining with her son,
sitting near their table. Additionally, Wagner claimed Domingue was using
Facebook to harass her by posting ugly remarks intentionally designed to disparage
Wagner. In her TRO Petition, Wagner further alleged: “He shows up places I go. I
feel like he is following me. He scares me and it is creepy. I just want to be left alone
and have no contact with him.”
A hearing on Wagner’s TRO Petition was held on March 21, 2011, before a
district court judge of the Fifteenth Judicial District Court, Parish of Lafayette. The
district judge declined to issue protective orders and/or an injunction in favor of
Wagner against Domingue.
On September 27, 2011, Domingue filed a Petition for Damages for civil
malicious prosecution based on the denial by the district court judge of Wagner’s
request for protective orders and/or an injunction against Domingue. In his Petition,
Domingue alleged that the January 14, 2011 TRO Petition was filed by Wagner in
retaliation for an earlier suit filed by Domingue against Wagner in Lafayette City
Court seeking damages arising out of alleged defamatory internet comments made by
Wagner against Domingue. The Domingue defamation suit is presently pending
under Lafayette City Court Docket No. 2010-CV-03087. Domingue asserted in his
malicious prosecution suit that the claims made by Wagner in her TRO Petition were
false and/or did not support the relief sought by Wagner. Domingue further asserted
that the denial of the protective orders and/or injunction by the district court judge
met the required elements for a civil claim of malicious prosecution under Louisiana
law and entitled him to damages relating to harm to his reputation in the community,
as well as mental and emotional damages.
Wagner filed an Answer to Domingue’s Petition for Damages in which she
admitted she filed her TRO Petition for protection from Domingue shortly after the
father of her child, Blythe Fredrick (Fredrick), filed a TRO Petition on behalf of
Fredrick against Domingue. The TRO Petition against Domingue on behalf of
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Fredrick was granted on March 21, 2011, by the district court, also in Docket No.
2010-8268.
Wagner further answered that she believed at the time of filing the TRO
Petition in Docket No. 2010-8268, and she continues to believe, Domingue’s actions
present a real threat and present a real danger to her safety. Wagner additionally
averred that she filed the January 14, 2011 TRO Petition at the suggestion of
members of the Lafayette Police Department in order to stop the threats, harassment,
and stalking by Domingue. Wagner also included in her Answer a Reconventional
Demand against Domingue for intentional infliction of emotional distress and mental
anguish for the filing of his Petition for Damages claiming malicious prosecution.
Domingue then responded by filing an Exception of No Cause of Action,
seeking to dismiss Wagner’s Reconventional Demand on the basis that she failed to
allege sufficient facts to support her claim of intentional infliction of emotional
distress. The hearing on Domingue’s Exception of No Cause of Action was set for
April 23, 2012. On April 18, 2012, in response to Domingue’s exception, Wagner
sought leave to file what was styled as Defendant’s Amended Reconventional
Demand, seeking to support and give specific examples of Domingue’s behavior
toward Wagner.
Following the hearing on April 23, 2012, the trial court, on its own motion,
dismissed Domingue’s Petition for Damages with prejudice, granted Domingue’s
Exception of No Cause of Action, and thereby dismissed Wagner’s Reconventional
Demand with prejudice, and assessed the costs equally between the parties. In a
separate Order dated April 23, 2012, the trial court denied as moot Wagner’s request
to file her Amended Reconventional Demand.
Domingue now appeals, asserting that the trial court erred in dismissing sua
sponte his Petition for Damages claiming malicious prosecution. Domingue claims
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Louisiana law allows a cause of action for malicious prosecution arising out of a civil
proceeding. He further asserts the trial court erred in refusing to allow him an
opportunity to amend his Petition for Damages, as an amendment would have cured
the defect in his pleadings.
Wagner responded to Domingue’s appeal as a pro se litigant, filing a letter with
attached e-mail correspondence from Domingue. The e-mail correspondence is not
part of the record on appeal. Wagner did not, however, seek appeal of the trial court’s
ruling granting Domingue’s Exception of No Cause of Action dismissing her
Reconventional Demand for intentional infliction of emotional distress or dismissing
as Moot her Motion for Leave to File An Amended Reconventional Demand.
DISCUSSION
The standard of review when an appellate court is presented with an exception
of no cause of action is well-settled. The supreme court, in Ramey v. DeCaire, 03–
1299, pp. 7–8 (La. 3/19/04), 869 So.2d 114, 118–19 (citations omitted), stated the
following:
A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the plaintiff’s
right to judicially assert the action against the defendant. The function of
the peremptory exception of no cause of action is to test the legal
sufficiency of the petition, which is done by determining whether the
law affords a remedy on the facts alleged in the pleading. No evidence
may be introduced to support or controvert an exception of no cause of
action. Consequently, the court reviews the petition and accepts well-
pleaded allegations of fact as true. The issue at the trial of the exception
is whether, on the face of the petition, the plaintiff is legally entitled to
the relief sought.
Louisiana has chosen a system of fact pleading. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition.
However, the mere conclusions of the plaintiff unsupported by facts
does not set forth a cause of action.
The burden of demonstrating that the petition states no cause of
action is upon the mover. In reviewing the judgment of the district court
relating to an exception of no cause of action, appellate courts should
conduct a de novo review because the exception raises a question of law
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and the lower court’s decision is based solely on the sufficiency of the
petition. The pertinent question is whether, in the light most favorable to
plaintiff and with every doubt resolved in plaintiff’s behalf, the petition
states any valid cause of action for relief.
Domingue asserts that the trial court erred in dismissing sua sponte, his Petition
for Damages based on a failure to state a cause of action for civil malicious
prosecution. We agree that La.Code Civ.P. art. 1672(B) provides no statutory
authority for the trial court’s raising on its own motion and then granting an
involuntary dismissal. An involuntary dismissal usually comes at the conclusion of an
evidentiary hearing. Here, the trial court granted a sua sponte dismissal of
Domingue’s petition. The trial court had authority to dismiss Domingue’s petition
based on its own properly raised peremptory exception of no cause of action as
provided for under La.Code Civ.P. art. 927(A)(5). As noted in La.Code Civ.P art.
927(B), “the failure to disclose a cause of action . . . may be noted by either the trial or
appellate court on its own motion.” A fair reading of the record shows that the trial
court dismissed Domingue’s suit based on its reading of the exhibit attached to
Domingue’s petition, i.e., Wagner’s protective order petition. The trial court found
that Wagner’s TRO petition, even though denied, was based on legitimate grounds.
Thus, Domingue had no cause of action against Wagner for civil malicious
prosecution.
Malicious Prosecution Arising From A Civil Action
Louisiana law does recognize a cause of action for malicious prosecution
arising out of a civil action. It is well settled, however, that actions for malicious
prosecution have never been favored, and, in order to sustain them, a clear case must
be established. Malicious prosecution occurs when “the forms of justice have been
perverted to the gratification of private malice and the willful oppression of the
innocent.” McClanahan v. McClanahan, 11-284, p. 6 (La.App. 5 Cir. 12/28/11), 82
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So.3d 530, 534 (citing Johnson v. Pearce, 313 So.2d 812, 816 (La.1975) (citation
omitted)). 1
Louisiana courts have held that the following six elements are necessary to
support a claim for malicious prosecution, and the lack of any one of these factors is
fatal to such a claim: 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 the proceeding; 5)
the presence of malice therein; and 6) damage conforming to legal standards resulting
to plaintiff. McClanahan II, 82 So.3d 530; McClanahan v. McClanahan, 09–182,
(La.App. 5 Cir. 10/13/09), 27 So.3d 862, writ denied, 09–2455 (La.1/29/10), 25 So.3d
833 (citation omitted).2 Further, the action for malicious prosecution has always been
applied only where there has been strict compliance with all essential elements. Id.
During the hearing on April 21, 2012, the trial court questioned Domingue’s
ability to meet the requirement of “the absence of probable cause for the proceeding.”
McClanahan II, 82 So.3d at 534. In this case, the alleged probable cause for
Domingue’s cause of action for malicious prosecution was Wagner’s TRO Petition
and the subsequent denial by the trial court of Wagner’s request to issue a protective
order and/or injunction against Domingue. Probable cause depends not upon the
actual state of the case in point of fact, but on the honest and reasonable belief of the
party seeking the protective order. Eusant v. Unity Indus. Life Ins. & Sick Benefit
Ass’n of New Orleans, 196 So. 554 (La.1940).
It is clear to this court, after a review of the record, and more specifically the
TRO Petition, that Wagner’s claim that she feared for her safety was based on an
1
Hereinafter referred to as “McClanahan II.”
2
Hereinafter referred to as “McClanahan I.”
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honest and reasonable belief. Further supporting this conclusion is the fact that she
sought the help of Police Chief Craft, who advised her to seek the TRO Petition in
order to get a protective order. Wagner’s “honest and reasonable belief,” stated in her
sworn affidavit in support of her petition for a TRO, negates Domingue’s ability to
prove one of the required elements of civil malicious prosecution, i.e., element four
(4), which requires, “the absence of probable cause for the proceeding.” McClanahan
II, 82 So.3d at 535.
Louisiana Constitution Article 1, § 6 gives all Louisiana citizens the right to
seek proper redress in our courts and provides: “All courts shall be open, and every
person for injury done him in his rights, lands, goods, person or reputation shall have
adequate remedy by due process of law and justice administered without denial,
partiality or unreasonable delay.”
The fact that the judge assigned to hear Wagner’s TRO Petition did not issue
the protective order she sought does not mean that the petition was groundless and
filed in bad faith. The trial judge hearing the TRO made no such finding. Although
the trial court in this case did not spell out the exact basis for its sua sponte granting of
the exception of no cause of action dismissing Domingue’s civil “malicious
prosecution” lawsuit, it is clear from its statements to the parties and counsel in its
reasons that the trial court believed that Wagner had not filed her TRO Petition in bad
faith:
MR. YOUNG: The malicious prosecution case is specifically in
response to the petition which was filed – which was found to be
baseless, which we believe we proved –
THE COURT: No, no. See, you use baseless; and it was denied.
Judge Castle didn’t say baseless, did she?
MR. YOUNG: No. I don’t know if she said the word baseless;
but a review of the minutes will show that she finds that nothing that was
complained of rose to the level of requiring protection.
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THE COURT: Exactly what I just said. It doesn’t mean it’s
baseless. It just means that it doesn’t rise to the level of what we are
mandated under the statute of the protective order of saying, Okay, I hear
what you are saying, but that really doesn’t get you to the point of when I
can issue a protective order.
Moreover, in this case, the record is clear that Wagner consulted Police Chief
Craft, and on his advice applied for the TRO in this case. Wagner is, thus, also
immune from a suit for civil malicious prosecution based on her qualified immunity
discussed by the Louisiana Supreme Court in Jones v. Soileau, 448 So.2d 1268
(La.1984) and Johnson v. Pearce, 313 So.2d 812 (1975). This court in Blackwell v.
Blackwell, 479 So.2d 1085 (La.App. 3 Cir. 1985) recognized the concept of qualified
immunity for a party who files charges after seeking the advice of a legal official, but
found it did not apply under the facts of that case. The trial court’s ruling does not
mention “qualified immunity,” but since the doctrine is a legal concept, it can be
recognized as applicable in this case. In any event, the trial court’s ruling granting sua
sponte an exception of no cause of action and dismissing Domingue’s suit was not
“manifestly erroneous” and is affirmed.
Right to Amendment of Pleadings
The trial court dismissed Domingue’s suit based on its finding that Wagner’s
TRO Petition was not filed in bad faith and was not “baseless.” Thus, the trial judge
found that Domingue was not able to satisfy element four (4) of a cause of action for
civil malicious prosecution, i.e., “the absence of probable cause for the proceeding.”
McClanahan II, 82 So.3d 530, 534. An amendment to the petition cannot cure the
defect.
CONCLUSION
For the forgoing reasons, we affirm the trial court’s judgment dismissing
Donald Domingue’s Petition for Damages with prejudice. Because no appeal was
filed by Peggy Sue Wagner, the trial court’s ruling granting Donald Domingue’s
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Exception of No Cause of Action, thereby dismissing Peggy Sue Wagner’s
Reconventional Demand with prejudice is final. Moreover, as no appeal was filed by
Wagner, the trial court’s dismissal as moot of Wagner’s Motion for Leave to File
Amended Reconventional Demand is also final. All costs of this appeal are assessed
against the Appellant, Donald Domingue.
AFFIRMED.
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