Opinion
2022 CA 1126
06-02-2023
CLARENCE TALBERT, III v. AFFORDABLE RENT-TO-OWN OF THIBODAUX, L.L.C. AND AFFORDABLE RENT-TO-OWN, D/B/A AFFORDABLE HOME FURNISHINGS
David Anthony Binegar Tiffany R. Christian New Orleans, Louisiana Counsel for Plaintiff/Appellant Clarence Talbert, III Laura W. Christensen Thomas W. Darling Baton Rouge, Louisiana Counsel for Defendants/Appellees Affordable Rent-To-Own of Thibodaux, L.L.C. and Affordable Rent-To-Own, LLC
On Appeal from the Seventeenth Judicial District Court In and for the Parish of Lafourche State of Louisiana Docket No. 140089 Honorable Maria M. Abel, Judge Presiding
David Anthony Binegar Tiffany R. Christian New Orleans, Louisiana Counsel for Plaintiff/Appellant Clarence Talbert, III
Laura W. Christensen Thomas W. Darling Baton Rouge, Louisiana Counsel for Defendants/Appellees Affordable Rent-To-Own of Thibodaux, L.L.C. and Affordable Rent-To-Own, LLC
BEFORE: McCLENDON, HOLDRIDGE, AND GREENE, JJ.
McCLENDON, J.
The trial court granted defendants' motion for summary judgment and dismissed plaintiff's claims with prejudice. Plaintiff appealed. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
Clarence Talbert, III entered into a rental-purchase agreement as to certain movable property with Affordable Rent-To-Own of Thibodaux, L.L.C., and Affordable Rent-To-Own, LLC. (collectively, "Affordable") on October 28,2016. Mr. Talbert entered into additional rental-purchase agreements with Affordable on January 16, 2017. The leased movables included a laptop computer, a dining room set, a foam mattress, and a bedroom set with a mattress.
Mr. Talbert failed to pay as required under the terms of the rental-purchase agreements. Accordingly, Affordable notified Mr. Talbert via certified mail dated August 9, 2017, that the rental-purchase agreements were terminated effective July 14, 2017 and demanded return of the rented movable property. Mr. Talbert's wife signed for receipt of the certified demand letters.
On September 14, 2017, Affordable submitted a written request to the City Court of Thibodaux for criminal charges to be filed against Mr. Talbert for violation of LSA-R.S. 14:220.1, Failure to Return Leased Movables. The City Court Prosecutor accepted the charges on September 21, 2017. An arraignment hearing on the charges was set for November 20, 2017.
The record reflects that Mr. Talbert was not served with notice of the November 20, 2017 arraignment hearing. This fact was also clearly noted in the City Court's November 20, 2017 minutes, which read, in part, "[contempt was not typed, defendant was not served with a notice.]" Nevertheless, and without explanation, the minutes go on to state, "[on motion of the prosecuting attorney, the court ordered that a bench warrant was issued for this matter with bond in the amount of $1,000.00.]" Accordingly, a bench warrant issued "for failing to appear on 11/20/2017 for [arraignment on the charge of failure to return leased movables.]"
On February 25, 2019, Mr. Talbert was stopped for allegedly running a stop sign while driving home from church. He was arrested per the bench warrant and was released the following day after posting bond. After Mr. Talbert's release, he informed Affordable of his arrest. On February 26, 2019, Ward J. Cooley, the store manager at Affordable's Thibodaux location, notified the City Prosecutor that the dispute forming the basis of the request for criminal charges against Mr. Talbert had been resolved. Mr. Cooley also sent a written apology to the City Prosecutor, explaining that Affordable's records did not reflect whether Affordable informed the City Court when the merchandise was returned. The charges against Mr. Talbert were dismissed as "nolle prosequi."
On January 23, 2020, Mr. Talbert filed a petition for damages, naming Affordable as defendant therein. According to Mr. Talbert, after he received Affordable's demand letter, he immediately returned the rented property and paid the outstanding balance on his rental-purchase agreements. Thus, he believed the matter was fully resolved as of September 2017. However, because Affordable did not inform the City Court, the police, or the City Prosecutor of the resolution, the criminal case against Mr. Talbert continued. Mr. Talbert alleged that this resulted in his improper and/or wrongful arrest in front of his family and fellow church members, causing him to sustain damages.
Based on these allegations, Mr. Talbert asserted four causes of action. Mr. Talbert argued that Affordable owed him a duty to inform the police, the City Court, or the City Prosecutor's office that the rented property had been returned and all outstanding fees had been paid; that Affordable breached that duty; and that the breach was a direct cause of Mr. Talbert's wrongful arrest and incarceration, which caused him to sustain damages including, but not limited to, loss of work/wages, embarrassment, humiliation, loss of reputation, mental anguish, and emotional distress. Mr. Talbert also claimed that Affordable's actions constituted malicious prosecution, defamation, and breach of contract. Mr. Talbert prayed for damages in accordance with the evidence and the law, including penalties, attorney fees, costs, and legal interest.
In response to Mr. Talbert's petition for damages, Affordable filed an answer and reconventional demand. Affordable maintained that Mr. Talbert, as defendant-in-reconvention, breached the terms and conditions of the rental-purchase agreements by failing to make all of the required rental payments, resulting in the termination of the agreements. Affordable maintained that Mr. Talbert's account had a remaining balance owed of $638.90, representing past due rent for the leased movables that were returned and that Affordable was entitled to damages in that amount.
On February 22, 2022, Affordable filed a motion for summary judgment seeking dismissal of Mr. Talbert's claims. Affordable alleged that Mr. Talbert could not prove all of the elements essential to his claims. Particularly, Affordable asserted that Mr. Talbert could not prove his alleged damages were caused by any action or inaction on the part of Affordable, "because [Mr.] Talbert's arrest was caused by the City Prosecutor failing to ensure he was properly served notice of the hearing date on his criminal charges, not any actions by Affordable." Affordable also argued that it had no duty to inform the City Prosecutor that Mr. Talbert returned the rented movables after it requested criminal charges, as Mr. Talbert's criminal act had already been committed. Affordable further maintained that "the City Prosecutor's careless conduction of the criminal proceeding against [Mr.] Talbert, over which it had complete control, was an unforeseeable and superseding cause of [Mr.] Talbert's arrest, even if it is deemed that Affordable owed [Mr.] Talbert a duty." Thus, Affordable maintained it was entitled to summary judgment as a matter of law.
Mr. Talbert opposed Affordable's motion for summary judgment. He argued that summary judgment was inappropriate because genuine issues of material fact existed regarding his causes of action for negligence, defamation, malicious prosecution, and breach of contract.
Following a hearing on April 28, 2022, the 17* Judicial District Court (trial court) found no genuine issues of material fact. A written judgment was signed on May 2,2022, granting summary judgment in favor of Affordable and dismissing Mr. Talbert's claims against it with prejudice. Mr. Talbert then filed the instant appeal, wherein Mr. Talbert alleged the trial court erred as follows: (1) The trial court erred by finding that a factual dispute existed as to whether Mr. Talbert and Affordable reached an agreement by which Mr. Talbert would resolve the dispute on or before September 30,2017, but nevertheless finding that the disputed facts were not material; and, (2) The trial court erred by finding that Affordable did not assume the duty under Louisiana law to notify the prosecutor that Mr. Talbert had resolved the dispute which was the basis for the criminal charges, which would have resulted in the criminal charges being dropped.
During the hearing, the trial court noted, and the parties confirmed, that there were no objections to any of the evidence filed with either the motion for summary judgment or the memorandum in opposition.
We note that the written judgment erroneously stated the hearing took place on April 29, 2022.
SUMMARY JUDGMENT
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Carr v. Louisiana Farm Bureau Casualty Insurance Co. , 2017-0589 (La.App. 1 Or. 3/14/18), 244 So.3d 823, 825. After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show there is no genuine issue as to material fact and that mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(3).
The only documents that may be filed in support of or in opposition to the motion are pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions. LSA-C.C.P. art. 966(A)(4).
The burden of proof rests on the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. LSA-C.C.P. art. 966(D)(1).
Appellate courts review evidence de novo under the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Carr, 244 So.3d at 826. Thus, appellate courts ask the same questions that the trial court does in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover is entitled to judgment as a matter of law. Carr, 244 So.3d at 826.
A trial court cannot make credibility decisions on a motion for summary judgment. In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Despite the legislative mandate that summary judgments are favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent's favor. Carr, 244 So.3d at 826.
In ruling on a motion for summary judgment, the trial court's role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. A "genuine" issue is a triable issue, which means that an issue is genuine if reasonable persons could disagree; if on the state of the evidence/ reasonable persons could reach only one conclusion, there is no need for a trial on that issue. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Elee v. White, 2021-0229 (La.App. 1 Cir. 10/21/21), 332 So.3d 97, 100, writ denied, 2021-01732 (La. 1/19/22), 331 So.3d 329. However, simply showing the presence of disputed facts is insufficient if there is no legal issue presented by those contested facts. Elee, 332 So.3d at 100-01. Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Elee, 332 So.3d at 101.
SUMMARY JUDGMENT EVIDENCE
In support of Affordable's motion for summary judgment, Affordable submitted a statement of uncontested material facts; Mr. Talbert's petition for damages; Mr. Cooley's affidavit, together with attachments thereto; the transcript of Mr. Cooley's deposition; the transcript of Mr. Talbert's deposition; and certified AT&T records.
Mr. Cooley attested that his affidavit was based on his personal knowledge as an employee of Affordable since 2010. At the time Mr. Cooley executed his affidavit, he was the store manager of Affordable's Thibodaux location; at the time of the events in question, he was a rental clerk at the same location, "second in charge" under then-store manager Jamie Thomas. In his affidavit, Mr. Cooley further verified that numerous documents attached thereto were accurate records kept in the ordinary course of Affordable's regularly conducted business activities, such as Mr. Talbert's Customer Payment History and Agreement Payment History, which verified that Mr. Talbert failed to make payment on his accounts between May 22, 2017 and September 30, 2017.
Affordable's Collector's Workstation Contact History documented Affordable's contact with Mr. Talbert. The Contact History included numerous messages to Mr. Talbert's cell phone, some stating that a voicemail was left, and others requesting that Mr. Talbert schedule a return of the merchandise as the rental-purchase agreements had terminated. The Contact History also included a May 6, 2017 note that Mr. Talbert had been contacted but didn't make a payment; a May 20, 2017 note that a "door tag" was left at Mr. Talbert's residence; and a July 11, 2017 note that a certified demand letter was sent to Mr. Talbert. Two notes dated July 29, 2017 documented that Mr. Talbert had refused to return the leased movables and informed Affordable "to do what [Affordable had] to do." A September 12, 2017 note reflected that the following text message was sent to Mr. Talbert: "This is a reminder that you have committed to pay [$]902.51 TODAY at AFFORDABLE." A September 26, 2017 message reflected that a text message was sent that read: "CHARGES HAVE BEEN FILED ON THIS ACCOUNT!!!" A September 30, 2017 text message stated: "This is a reminder that you have committed to pay [$]1088.08 TODAY at Affordable."
Also attached to Mr. Cooley's affidavit were copies of Mr. Talbert's driver's license, which reflected a home address of 119 Homerun Parkway, Donaldsonville; Mr. Talbert's rental order forms and rental-purchase agreements, which reflected a P.O. Box 1215, Napoleonville address; Mr. Talbert's CoreLogic Teletrack credit report, which reflected a 119 Homerun Parkway, Donaldsonville, address; the delivery receipts, with handwritten notes that the leased movables were delivered to 204 Anthony Drive, Donaldsonville; rental return orders, and return receipts; the demand letters Affordable sent Mr. Talbert via certified mail to the P.O. Box 1215, Napoleonville address, informing him that the rental-purchase agreements were terminated under their terms on July 14, 2017, together with the certified mail receipt; the transfer of title agreements with receipts; and, Affordable's "Level I Training Manual."
A certified copy of the City Court of Thibodaux's records verified that the City Court of Thibodaux received Affordable's request for criminal charges on September 14, 2017, together with the supporting documents attached thereto. These documents included the rental-purchase agreements; copies of Affordable's demand letters; and a copy of Mr. Talbert's driver's license. The City Court's records further included the notice of arraignment, addressed to the 119 Homerun Parkway, Donaldsonville address, as well as the October 26, 2017 service return reflecting that the Sheriff's Department had been unable to serve Mr. Talbert at the 119 Homerun Parkway, Donaldsonville address. As noted above, the City Court minutes of the November 20, 2017 arraignment date documented both that Mr. Talbert was not served and that the City Court ordered a bench warrant for his failure to appear.
The City Court records also contained a form completed by Affordable, directed to the City Prosecutor, and dated February 26, 2019. The form letter stated, in pertinent part:
We would like to notify you that the incident causing us to request charges to be filed on [Talbert] for failure to return leased movables has been resolved as of 9-30-17 in the following way[:] the merchandise was recovered approximately 2 weeks after charges were filed. Please confirm this letter has been received by signing and emailing it back to . . .Affordable's above-referenced form letter was accompanied by copies of the rental return orders and the return to stock receipts. The City Court records also included Mr. Cooley's February 26, 2019 letter to the City Prosecutor, which provided:
To whom it may concern:
Please accept my sincerest apology. The previous store manager did not have records reflecting that the court was informed that our merchandise was in fact recovered.
Thank you for your time and assistance[]
Ward J. CooleyFinally, the City Court minutes dated March 4, 2019 reflected that, "on motion of the prosecuting attorney, the court ordered that a 'nolle prosequi be entered in the above numbered and entitled matter."
Affordable offered Mr. Cooley's deposition testimony as that of its designated corporate representative. According to Mr. Cooley, when Mr. Talbert executed the rental-purchase agreements, his accounts were initially assigned to Mr. Cooley, then to an accounts manager. Mr. Cooley testified that, while Affordable had general guidelines for employees to follow when accounts became delinquent, once accounts "be[come] difficult," the direction from Affordable was less specific. However, he explained that the customer was generally given fifteen days after Affordable sent a demand letter to either pay for the merchandise or return it to the store. If the customer failed to comply, Affordable would request for charges to be filed. If the account was later closed, either through payment of the balance or return of the movable, the letter notifying the City Prosecutor of the resolution would be prepared and sent first class the same or the following day.
During Mr. Cooley's deposition, he was asked to review and explain Mr. Talbert's payment history. Pertinent to the issue before us, after Affordable filed the request for charges on September 14, 2017, Mr. Talbert paid the balance on the mattress on September 30, 2017, and Affordable transferred the title to him that day. Mr. Talbert made an additional payment toward the dining room set the same day and made a final payment on the dining room set on November 3, 2017. Mr. Cooley did not believe the City Prosecutor was informed of these transactions.
Mr. Cooley verified that Affordable had several addresses on file for Mr. Talbert, as set forth above. Mr. Cooley testified that Affordable physically sought to collect money and repossess the leased movables from Mr. Talbert at the 204 Anthony Drive, Donaldsonville address, but Mr. Talbert refused to comply, and told him, "You're just going to have to do what you got to do."
With respect to the rental-purchase agreements, at his deposition Mr. Talbert admitted that he fell behind on his payments to Affordable and that Affordable had contacted him about the issue. He recalled his wife receiving Affordable's certified demand letter on approximately August 12, 2017, Affordable leaving door tags at his house regarding late payments, and someone from Affordable coming to his home to discuss the return of the leased movables. However, Mr. Talbert also stated that after receipt of the demand letter, and before Affordable filed the request for charges on September 14, he arranged to make payments on his debt to Affordable, though he was unable to recall exactly when this alleged agreement was made. Yet, on questioning, Mr. Talbert stated he may have arranged to make the payments on the day before September 30. Mr. Talbert also denied telling anyone "to do what they needed to do" or receiving texts from Affordable regarding the return of the leased movables. He did not recall exactly when he returned the items to Affordable.
Mr. Talbert filed a response to Affordable's statement of uncontested material facts and an opposition to Affordable's motion for summary judgment. The exhibits Mr. Talbert filed in support of his opposition were several of the same exhibits Affordable filed in support of its motion, including Mr. Talbert's petition for damages, excerpts of the transcript of Mr. Talbert's deposition, the transcript of Mr. Cooley's deposition, one of the rental-purchase agreements, and Mr. Talbert's payment history.
NEGLIGENCE
We first consider whether summary judgment was appropriate regarding Mr. Talbert's cause of action against Affordable based on negligence, i.e., LSA-C.C. art. 2315, et seq. Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles, which requires affirmative proof of five separate elements in order for the plaintiff to recover: (1) proof that the defendant had a duty to conform his conduct to a specific standard of care f the duty element"); (2) proof that the defendant failed to conform his conduct to the appropriate standard ("the breach of duty element"); (3) proof that the defendant's substandard conduct was a cause-in-fact of the injuries ("the cause-in-fact element"); (4) proof that the defendant's substandard conduct was a "legal cause" of the injuries (sometimes, "the scope of the duty," "the scope of liability," or "the scope of protection element"); and (5) proof of actual damages ("the damages element"). A negative answer to any of the inquiries of the duty-risk analysis results in a determination of no liability. Carman v. Livers, 2021-0701 (La.App. 1 Cir. 4/6/22), 341 So.3d 749,758, writ denied, 2022-00753 (La. 9/20/22), 346 So.3d 290.
In this matter, Affordable sought dismissal of Mr. Taibert's negligence claim on the basis that Mr. Talbert could not prove that Affordable breached a duty it owed him, nor that Affordable's action or inaction was a legal cause of Mr. Talbert's alleged injuries. While Affordable bore the burden of proof as the mover seeking summary judgment, it would not bear the burden of proof at trial, and therefore was not required to negate all of the essential elements of Mr. Talbert's claim. Rather, Affordable was only required to point out the absence of factual support for one or more elements essential to Mr. Talbert's claim. See LSA-CCP. art. 966(D)(1). Having thoroughly considered the law and conducted a de novo review of the record before us, we find that Affordable successfully established an absence of factual support for the legal cause element of Mr. Talbert's negligence claim.
Whether phrased in terms of legal cause or scope of duty or proximate cause, the concept is necessary to truncate liability, because substandard conduct does not render the actor liable for all consequences spirating outward, until the end of time. See Hemphill v. Smith, 2020-0795 (La.App. 1 Cir. 7/22/21), 328 So.3d 1224, 1234, writ denied. 2021-01286 (La. 11/17/21), 327 So.3d 997; Paul v. Louisiana State Employees' Group Benefit Program , 1999-0897 (La.App. 1 Cir. 5/12/00), 762 So.2d 136, 143. The relevant inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty. Landers v. USIC Locating Services, Inc., 2020-0890 (La.App. 1 Cir. 4/26/21), 324 So.3d 1070,1075. A risk may not be within the scope of a duty where the circumstances of the particular injury to the plaintiff could not be reasonably foreseen or anticipated, because there was no ease of association between that risk and the legal duty. Carman, 341 So.3d at 762. Thus, a tortfeasor is liable only for damages caused by his negligent act, not damages caused by separate, independent, or intervening causes. Elee, 332 So.3d at 101. In situations in which there is an intervening force that comes into play to produce the plaintiff's injury (or more than one cause of an accident), it has generally been held that the initial tortfeasor will not be relieved of the consequences of his or her negligence unless the intervening cause superseded the original negligence and alone produced the injury. If the original tortfeasor could or should have reasonably foreseen that the accident might occur, he or she will be liable notwithstanding the intervening cause. In sum, foreseeable intervening forces are within the scope of the original risk, and hence of the original tortfeasor's negligence. Adams v. Rhodia, Inc., 2007-2110 (La. 5/21/08), 983 So.2d 798, 808.
For the purpose of determining the legal question of whether legal cause exists, we can assume a breach of duty which is the cause-in-fact of the plaintiff's damages. Hemphill, 328 So.3d at 1234. Proceeding under these assumptions, and with the foregoing legal precepts in mind, we find that the risk of harm to Mr. Talbert did not fall within the scope of the duty presumptively owed by Affordable. As stated by this court in Paul, 762 So.2d at 143: Whether phrased in terms of scope of duty or legal cause or proximate cause, it can be useful to consider whether "too much else has intervened- time, space, people, and bizarreness." In this case, there was not only time and space between Affordable's conduct and the harm that materialized, but also other factors and an element of irregularity. As a result, the relationship between Affordable's action and inaction, and the events Mr. Talbert alleged caused him harm, were too attenuated to support a finding of legal cause. The unusual circumstances and legal errors leading to this particular injury to this particular plaintiff could not have been reasonably foreseen or anticipated; Affordable could not have foreseen that the City Court would fail to serve Mr. Talbert with notice of his arraignment hearing, that he would not appear at the hearing, and that such would lead to the City Court's issuance of a bench warrant resulting in Mr. Talbert's arrest, despite a documented lack of service. Stated differently, there is no ease of association between Affordable requesting that criminal charges be instituted and Mr. Talbert's arrest for failure to appear at a hearing for which he had not received notice.
Thus, Affordable successfully shifted the burden of proof to Mr. Talbert to demonstrate either that a genuine issue of material fact precluded summary judgment, or that Affordable was not entitled to judgment as a matter of law. In Mr. Talbert's opposition, he argued that the bench warrant did not constitute an intervening act sufficient to relieve Affordable of liability because "Affordable knowingly provided the prosecutor an incorrect address for Talbert." Thus, Mr. Talbert maintained that "[even] though Talbert was arrested based on a bench warrant, the warrant was issued because Affordable knowingly provided the prosecutor an incorrect address at which to serve his summons" and the resulting harm was reasonably foreseeable.
These arguments lack merit. As discussed above, even were we to assume that Affordable intentionally provided an incorrect address, Affordable could not have reasonably foreseen both that the City Prosecutor would seek a bench warrant for failure to appear against someone who had not been served, and that the City Court would issue such a warrant. Further, Mr. Talbert failed to provide any evidence supporting his claims that Affordable intentionally provided an incorrect address. To the contrary, the record reflects that Affordable provided numerous documents containing numerous addresses to the City Prosecutor, including several that reflected his correct address.
We acknowledge Mr. Talbert's arguments that his testimony presents contested issues of fact regarding the communications and agreements that may have occurred between Affordable and Mr. Talbert prior to Affordable requesting charges. However, none of these facts are material to the question of whether Mr. Talbert can provide factual support for the element of legal cause. Thus, there are no genuine issues of material fact precluding judgment, and Affordable was entitled to summary judgment dismissing Mr. Talbert's negligence claim as a matter of law.
Having found that Mr. Talbert cannot satisfy his burden of proof with respect to the element of legal cause, we need not determine whether Affordable owed Mr. Talbert a duty to notify the City Prosecutor of the resolution of the dispute which had previously led Affordable to pursue criminal charges against Mr. Talbert.
DEFAMATION
We next consider whether summary judgment was appropriate as to Mr. Talberfs defamation claim against Affordable. Emanating from LSA-C.C art. 2315, defamation is a tort involving the invasion of a person's interest in his or her reputation and good name. Johnson v. Purpera, 2020-01175 (La. 5/13/21), 320 So.3d 374, 386. 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. The fault requirement is generally referred to in the jurisprudence as malice, actual or implied. Johnson, 320 So.3d at 386-87. In order to prevail on a defamation claim, a plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words that caused plaintiff damages. If even one of the required elements of the tort is lacking, the claim fails. Because of their chilling effect on the exercise of free speech, defamation actions traditionally have been found particularly appropriate for resolution by summary judgment Johnson, 320 So.3d at 387.
"Summary adjudication, we have recognized, is a useful procedural tool and an effective screening device for avoiding the unnecessary harassment of defendants by unmeritorious actions which threaten the free exercise of rights of speech and press." Johnson, 320 So.3d at 387.
In Louisiana, privilege is a defense to a defamation action. Holmes v. Lea, 2017-1268 (La.App. 1 Cir. 5/18/18), 250 So.3d 1004,1010. The doctrine of privilege rests upon the notion that sometimes, as a matter of public policy, in order to encourage the free communication of views in certain defined instances, one is justified in communicating defamatory information to others without incurring liability. A conditional or qualified privilege arises in a variety of situations in which the interest that an individual is seeking to vindicate or to further is regarded as sufficiently important to justify some latitude for making mistakes so that publication of defamatory statements is deemed to be conditionally or qualifiedly privileged. Holmes, 250 So.3d at 1010. Whether a conditional privilege exists involves a two-step analysis, First, it must be determined as a matter of law whether the circumstances in which a communication was made satisfy the legal requirements for invoking the conditional privilege. 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. Holmes, 250 So.3d at 1010. Louisiana courts 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 qualified privilege to remarks made in good faith. Holmes, 250 So.3d at 1010.
Affordable's motion for summary judgment sought to defeat Mr. Talbert's defamation claim by asserting a conditional or qualified privilege as a defense. Affordable's request for criminal charges provided:
We would like to request that criminal charges be brought against Clarence Talbert for violation of Louisiana State Law R.S. 14:220.1 Failure To Return Leased Movables, a copy of which is attached hereto for your convenience,
We have formally terminated the agreement and demanded that our merchandise be returned and still to this date[, September 14, 2017,] our
rental property has not been returned. Enclosed you will find a copy of the rental agreement and the demand letter that was sent certified mail as well as the green card as evidence of return receipt. We have waited the mandatory 15 days after demanding the return of the merchandise and request that this person be prosecuted to the fullest extent of the law since blatant refusal to abide by the law is obvious. We would be happy to serve as witness and / or provide any other evidence necessary to bring this situation to justice.
In this case, Affordable's communication concerned Mr. Talbert's failure to return leased movables in violation of LSA-R.S. 14:220.1, and the complaint was made to the City Prosecutor, the proper official authorized to protect the public from such an act. Thus, Affordable clearly established that the communication to the City Prosecutor requesting criminal charges satisfied the legal requirements for invoking the conditional privilege, the first step of the conditional privilege analysis. See Holmes, 250 So.3d at 1010. Affordable also established that Mr. Talbert entered into rental-purchase agreements, failed to pay as required, and did not respond to numerous attempts by Affordable to resolve the issue without resorting to criminal prosecution. Additionally, Affordable presented evidence of a text message notifying Mr. Talbert that criminal charges had been requested. Thus, Affordable offered sufficient competent summary judgment evidence to establish that Affordable was not acting with malice or in the absence of good faith. As Affordable's invocation of the conditional privilege was not abused, the second step of the conditional privilege analysis was also satisfied. Thus, Affordable carried its burden of showing entitlement to the privilege defense to Mr. Talbert's defamation claim against it.
Accordingly, the burden of proof shifted to Mr. Talbert to establish the existence of a genuine issue of material fact, or that Affordable was not entitled to judgment as a matter of law. As noted above, Mr. Talbert claimed that he arranged with Affordable to make payments on the amounts he owed after receiving Affordable's demand letter and before Affordable requested charges. Hence, Mr. Talbert argued that Affordable had no grounds for requesting criminal charges on September 14,2017, and Affordable's request for charges to the City Court was therefore maliciously made without good faith. However, Mr. Talbert did not offer any evidence to establish that his alleged agreement with Affordable pre-dated Affordable's September 14, 2017 request for charges. Mr. Talbert also argued in his memorandum in opposition to Affordable's motion for summary judgment that, during his corporate deposition, Mr. Cooley was unable to verify the accuracy of the amounts allegedly owed by Mr. Talbert, or how said amounts were calculated. Nevertheless, we note that any inability of Mr, Cooley to explain the method behind the exact calculations is not material to Affordable's request for criminal charges. To the contrary, Mr. Talbert does not dispute Affordable's allegations that Mr. Talbert failed to pay under the terms of the rental-purchase agreements and failed to return the leased movables upon demand. Accordingly, finding that Mr. Talbert has failed to provide summary judgment evidence sufficient to create a genuine issue of material fact as to Affordable's claim of privilege, we conclude that the trial court properly granted summary judgment dismissing Mr. Talbert's claim for defamation.
To the extent it may be argued that Affordable's September 12, 2017 Contact History note documenting a text message sent to Mr. Talbert read "This is a reminder that you have committed to pay [$]902.51 TODAY at AFFORDABLE" could be construed as evidence of an agreement that pre-dated Affordable's September 14, 2017 request for criminal charges, such an argument would fail. It is undisputed that Mr. Talbert did not make a payment on his accounts between May 22, 2017 and September 30, 2017. Thus, even if Mr. Talbert and Affordable had made an agreement that Mr. Talbert would make a payment on September 12, 2017, Mr. Talbert breached that agreement, such that Affordable's request for criminal charges was a true statement at the time it was made.
MALICIOUS PROSECUTION
We net consider whether summary judgment was appropriate as to Mr. Talbert's malicious prosecution claim against Affordable. The tort of malicious prosecution derives from the fault-reparation principles of LSA-C.C. art 2315. Way-Jo, L.L.C. v. Anthony, 2020-0361 (La.App. 1 Or. 12/30/20), 319 So.3d 341, 349, writ not considered. 2021-00396 (La. 5/11/21), 315 So.3d 869. While the action for malicious prosecution has been recognized from the early jurisprudence of this state, it has 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. To prevail in an action for malicious prosecution, a plaintiff must prove: (1) the commencement or continuance of an original criminal or civil proceeding; (2) its legal causation by the present defendant against plaintiff who was defendant in the original proceeding; (3) its bona /determination 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. Because the action for malicious prosecution has never been favored, strict compliance with all essential elements is required for its application. Way-Jo, L.L.C., 319 So.3d at 349.
In Affordable's motion for summary judgment, Affordable argued that Mr. Talbert could not satisfy the necessary elements to support a malicious prosecution claim. Affordable maintained that Mr. Talbert could not present factual support for his allegations that Affordable lacked probable cause or acted with malice. Affordable argued that "[t]he crucial determination is whether [the defendant] had an honest and reasonable belief in the guilt of [the plaintiff] at the time [the defendant] pressed charges/'relying on Jones v. Soiteau, 448 So.2d 1268,1272 (La. 1984). If an accusation is based on probable cause, there is no liability even if there was malicious motive. Way-Jo, LLC, 319 So.3d at 350.
In this matter, Affordable argued that despite that fact that Mr. Talbert later returned the leased movables and paid his outstanding balance, Mr. Talbert had committed a crime at the time Affordable requested the criminal charges. We agree. Mr. Talbert conceded that he failed to pay as required, and he admitted that he only made payment on his outstanding debt and returned certain of the leased movables on September 30, 2017 and November 3, 2017, several weeks after Affordable requested criminal charges on September 14, 2017. Thus, Mr. Talbert's testimony and actions verified the circumstances which were the basis of Affordable's "honest and reasonable belief in [Mr. Talbert's guilt]" at the time Affordable's request for charges was filed. Further, the request for criminal charges and supporting documents plainly set forth the undisputed facts that Mr. Talbert entered into rental-purchase agreements, failed to pay as required, and did not respond to numerous attempts by Affordable to resolve the issue without resorting to criminal prosecution. This evidence established a factual basis for Affordable's request for criminal charges, as well as a lack of factual support for Mr. Talbert's allegation that Affordable requested criminal charges out of malice.
Finally, for the reasons given in our discussion of Mr. Talbert's negligence claim, Mr. Talbert has failed to demonstrate that a genuine issue of material fact exists as to the element of damages. For these reasons, the trial court properly granted summary judgment dismissing Mr. Talbert's claim for malicious prosecution.
BREACH OF CONTRACT
Finally, we consider whether summary judgment was appropriate as to Mr. Talbert's breach of contract claim against Affordable. The burden of proof in an action to recover damages for breach of contract is on the party claiming rights under the contract. Gulf South Psychiatry, L.L.C. v. Greenbrier Hospital, LLC, 2020-0957 (La.App. 1 Cir. 4/16/21), 323 So.3d 880, 883. The essential elements of a breach of contract claim are (1) the obligor undertook an obligation to perform; (2) the obligor failed to perform the obligation; and, (3) the failure to perform resulted in damages to the obligee. See LSA-C.C. art. 1994.
In Mr. Talbert's petition, he alleged that Affordable was liable to him for breach of contract because Affordable "breached the lease agreement by failing to follow the prescribed manner of delineating default and seeking return of the leased items." In particular, Mr. Talbert alleged that Affordable was required to make demand for the leased movables at Mr. Talbert's home prior to taking any further action. In Affordable's motion for summary judgment, it argued that Mr. Talbert cannot prove the elements of his breach of contract claim because the rental-purchase agreements did not contain such a requirement. Having thoroughly reviewed the record before us, we agree with Affordable. There was no evidence of a contractual provision by which Affordable undertook an obligation to declare default and seek return of the leased movables in a certain manner. Thus, Affordable established a lack of factual support for the first element of Mr. Talbert's breach of contract claim. Consequently, the burden of proof shifted to Mr. Talbert to prove that a genuine issue of material fact existed precluding summary judgment, or that Affordable was not entitled to judgment as a matter of iaw.
We further note that, as with Mr. Talbert's negligence claim, Mr. Talbert offered no factual support for the damages element of his breach of contract claim.
Having conducted a thorough de novo review of the record before us, we find that Mr. Talbert presented no competent summary judgment evidence sufficient to establish a genuine issue of material fact or that Affordable was not entitled to judgment as a matter of law. Thus, there was no genuine issue of material fact or question that Affordable was entitled to judgment as a matter of law. Accordingly, the trial court properly granted summary judgment dismissing Mr. Talbert's claim for breach of contract.
CONCLUSION
For the foregoing reasons, the May 2, 2022 judgment of the 17th Judicial District Court granting summary judgment in favor of defendants, Affordable Rent-To-Own of Thibodaux, LLC, and Affordable Rent-To-Own, LLC, and dismissing all claims of plaintiff, Clarence Talbert, III, against these defendants, is affirmed. Costs of the appeal are assessed against Mr. Talbert.
AFFIRMED.