Dina M. Bohn v. Kenneth Miller

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

15-1089

DINA M. BOHN

VERSUS

KENNETH MILLER

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 20150018 “F”
HONORABLE DAVID M. SMITH, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Marc T. Amy, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Scott M. Hawkins
R. Chris Oetjens
Karla H. Smith
Hawkins Oetjens, LLC
4980 Bluebonnet Boulevard, Suite A
Baton Rouge, Louisiana 70809
(225) 935-2222
COUNSEL FOR PLAINTIFF/APPELLANT:
Dina M. Bohn

Emile Joseph, Jr.
David J. Ayo
Allen & Gooch, A Law Corporation
2000 Kaliste Saloom Road, Suite 400
Lafayette, Louisiana 70508
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1310
COUNSEL FOR DEFENDANT/APPELLEE:
Kenneth Miller

GENOVESE, Judge.

In this tort action for defamation and malicious prosecution, Plaintiff, Dina

M. Bohn, appeals the trial court judgment granting a special motion to strike in

favor of Defendant, Kenneth Miller, and dismissing Ms. Bohn’s petition, with

prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

Ms. Bohn filed a Petition for Damages for Defamation and Malicious

Prosecution against Mr. Miller, alleging that he had filed a report with the

Lafayette Police Department complaining that Ms. Bohn had committed the

offense of unauthorized use of an access card, which resulted in her being arrested.

Ms. Bohn contended that Mr. Miller made the complaint maliciously and with the

intent to defame and cause her harm, thereby entitling her to recover damages

arising out of her criminal prosecution.

Mr. Miller responded to the lawsuit by filing a Special Motion to Strike on

the grounds that his action of reporting what he believed to be criminal activity to

the police was protected speech. Mr. Miller, therefore, sought a dismissal of Ms.

Bohn’s claims against him.

At the hearing on June 15, 2015, the trial court granted Mr. Miller’s Special

Motion to Strike and dismissed Ms. Bohn’s claims, with prejudice. A judgment in

accordance therewith was signed August 5, 2015. Ms. Bohn appeals.

ASSIGNMENTS OF ERROR

Ms. Bohn presents the following assignments of error for our review:

1. The trial court committed legal and reversible error by failing to
apply the proper legal standard and analysis necessary to support
the granting of a special motion to strike filed pursuant to [La.Code
Civ.P.] art. 971.

2. The trial court committed legal and reversible error by finding, as a
matter of law, that Mr. Miller’s false reporting of a crime was
speech protected under the United States and/or Louisiana
Constitutions.

3. The trial court committed legal and reversible error by finding, as a
matter of law, that Dina Bohn did not prove a substantial
likelihood of success in prosecuting her claims.

LAW AND DISCUSSION

Mr. Miller’s Special Motion to Strike was filed pursuant to La.Code Civ.P.

art. 971, which provides, in relevant part:

A. (1) A cause of action against a person arising from any act of
that person in furtherance of the person’s right of petition or free
speech under the United States or Louisiana Constitution in
connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established a
probability of success on the claim.

(2) In making its determination, the court shall consider the
pleadings and supporting and opposing affidavits stating the facts
upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a
probability of success on the claim, that determination shall be
admissible in evidence at any later stage of the proceeding.

....

F. As used in this Article, the following terms shall have the
meanings ascribed to them below, unless the context clearly indicates
otherwise:

(1) “Act in furtherance of a person’s right of petition or free
speech under the United States or Louisiana Constitution in
connection with a public issue” includes but is not limited to:

(a) Any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law.

(b) Any written or oral statement or writing made in connection
with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official body authorized by
law.

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(c) Any written or oral statement or writing made in a place
open to the public or a public forum in connection with an issue of
public interest.

(d) Any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.

This court discussed the purpose of La.Code Civ.P. art. 971, and the proper

application thereof, in Aymond v. Dupree, 05-1248, p. 7 (La.App. 3 Cir. 4/12/06),

928 So.2d 721, 727, writ denied, 06-1729 (La. 10/6/06), 938 So.2d 85, stating as

follows:

Article 971 was enacted by the legislature as a procedural device to be
used in the early stages of litigation to screen out meritless claims
brought primarily to chill the valid exercise of the constitutional rights
of freedom of speech and petition for redress of grievances. Lee v.
Pennington, 02-381 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, writ
denied, 02-2790 (La.1/24/03), 836 So.2d 52. Accordingly, La.Code
Civ.P. art. 971 provides that a cause of action against a person arising
from any act in furtherance of the person’s right of petition or free
speech under the United States or Louisiana Constitution in
connection with a public issue shall be subject to a special motion to
strike, unless the court determines that the plaintiff has established a
probability of success on the claim.

Thus, the moving party must first satisfy the burden of proving
that the cause of action arises from an act in the exercise of his right
of free speech regarding a public issue. If the mover satisfies this
initial burden of proof, then the burden shifts to the plaintiff to show a
probability of success on his claim.

In her first assignment of error, Ms. Bohn contends that the trial court

applied an improper legal standard and analysis when considering Mr. Miller’s

Special Motion to Strike. This court has set forth the legal standard and analysis

relative to the special motion to strike as follows: “The consideration of a special

motion to strike under La.Code Civ.P. art. 971 involves issues of law, and we are

required to conduct a de novo review of the trial court’s application of the law to

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those issues.” Savoie v. Page, 09-415, p. 4 (La.App. 3 Cir. 11/4/09), 23 So.3d

1013, 1016, writ denied, 10-96 (La. 4/5/10), 31 So.3d 365.

Ms. Bohn’s second assignment of error addresses the purported error of the

trial court in concluding that the “false reporting of a crime was a speech protected

under the United States and/or Louisiana Constitutions.” Specifically, Ms. Bohn

argues that Mr. “Miller knowingly, willfully[,] and falsely reported the commission

of a crime” and that “[t]he false reporting of a crime is not protected speech.” We

observe that “falsity is an element of a defamation claim to be proved by [Ms.

Bohn] as plaintiff after the burden shifts to [her].” Aymond, 928 So.2d at 728.

However, insomuch as it has been held that “[a] good faith report to law

enforcement officers of suspected criminal activity may appropriately be

characterized as speech on a matter of public concern[,]” the truthfulness and good

faith of Mr. Miller in making the report to law enforcement is relevant to our

inquiry. Cook v. Am. Gateway Bank, 10-295, p. 13 (La.App. 1 Cir. 9/10/10), 49

So.3d 23, 33 (citing Kennedy v. Sheriff of E. Baton Rouge, 05-1418 (La. 7/10/06),

935 So.2d 669).

The record in the case at bar establishes that while Ms. Bohn was working

for Miller Financial Services,1 she was entrusted with an American Express card to

be used for business purposes. During the time of her employment, Mr. Miller

learned that Ms. Bohn used the card to purchase tickets to Super Bowl XLIV.

Although there is some disagreement as to whether Ms. Bohn subsequently quit or

was fired, it is undisputed that after she was no longer in Mr. Miller’s employ, she

again used the American Express card to purchase New Orleans Saints tickets.

1
According to the Special Motion to Strike, Ms. Bohn “was hired by Miller Financial
Services, in which [Mr.] Miller is the managing member.”

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When Mr. Miller became aware of the purchase, he reported the incident to the

Lafayette Police Department. After notifying law enforcement, Mr. Miller had no

continued involvement in the police investigation.

The record indicates that Detective Malcolm Bussey, with the Lafayette

Police Department, investigated the matter. Detective Bussey obtained

documentation from RazorGator, the entity that sold the tickets to Ms. Bohn,

documentation from American Express, and he also spoke to Ms. Bohn. After

Detective Bussey confirmed that Ms. Bohn had purchased the tickets, he executed

an affidavit for purposes of obtaining an arrest warrant, averring that Ms. Bohn

“did knowingly, willfully and unlawfully make an unauthorized purchase,

using an American Express Credit Card, belonging to Mr. Kenneth Miller, in

the amount of $2,568.95, with the intent to deprive Mr. Miller in violation of

the Louisiana Revised Statute[s] 14:67.3.” Ms. Bohn was ultimately charged

with unauthorized use of an access card. According to the minutes of the trial

court in the criminal proceedings, Ms. Bohn made full restitution, and the criminal

matter was dismissed.

The crux of Ms. Bohn’s argument is that when Mr. Miller reported her use

of the credit card to the police, he “had actual knowledge that she was an

authorized user of the credit card and that he specifically and intentionally

withheld pertinent information from the police and [the] district attorney[.]” Ms.

Bohn argues that Mr. Miller failed to disclose to law enforcement that the card had

been issued in her name and that she was an authorized user of the card, which

renders him liable to her for the damages she sustained. We find no merit to Ms.

Bohn’s contentions.

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First, the evidence introduced at the hearing on Mr. Miller’s Special Motion

to Strike does not support Ms. Bohn’s arguments on appeal. Although Ms. Bohn is

emphatic that she was an authorized user of the credit card, law enforcement’s

independent investigation concluded otherwise, and they proceeded to charge her

with a crime. Unequivocally, at the time Ms. Bohn made the second charge on the

credit card, she was no longer working for Mr. Miller, and she did not have

authority to use the card. Moreover, based upon the record which evidences the

investigation conducted by Detective Bussey, Mr. Miller’s statements to law

enforcement were not the “sole evidence” against her, as she contends.

Second, Mr. Miller was certainly within his rights to notify law enforcement

that the credit card had been used without his permission, both when Ms. Bohn

was in his employ, and especially when it was again used after she no longer

worked for him. Thereafter, the appropriate law enforcement agency conducted its

own independent investigation into the matter, independently obtained evidence,

made its own conclusions, and proceeded to charge Ms. Bohn on its own volition.

Additionally, Ms. Bohn states in her brief to this court that the criminal matter was

resolved “in her favor[;]” in fact, the record reflects a dismissal only after Ms.

Bohn made full restitution to Mr. Miller.

Lastly, as mentioned above, the purported falsity of the statements urged by

Ms. Bohn are pertinent to her claims of defamation and malicious prosecution and

are misplaced in an analysis of whether the speech is protected, except as they

relate to the good faith, vel non, of Mr. Miller when the incident was reported. As

stated above, generally, the reporting of suspected criminal activity to law

enforcement is protected speech. See Cook, 49 So.3d 23; Kennedy, 935 So.2d 669;

and, Jalou II, Inc. v. Liner, 10-48 (La.App. 1 Cir. 6/16/10), 43 So.3d 1023. Thus,

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we conclude that Mr. Miller clearly proved that Ms. Bohn’s claims against him did

arise from his actions in furtherance of his right of free speech. Thus, Mr. Miller

met his initial burden of proof and we find no merit in Ms. Bohn’s second

assignment of error.

Having concluded that Mr. Miller successfully met his initial burden of

proof, we must next consider whether Ms. Bohn was able to demonstrate “a

probability of success” on her claims in order to defeat the Special Motion to

Strike. La.Code Civ.P. art. 971(A)(1). In her third assignment of error, she asserts

that the trial court erred in this regard. After considering the claims of defamation

and malicious prosecution, we find no merit to this contention.

Relative to a claim for defamation, this court has opined:

[T]o maintain an action for defamation, [a plaintiff] has the burden of
proving five elements: (1) defamatory words; (2) unprivileged
publication; (3) falsity; (4) malice (actual or implied); and, (5) injury.
Gugliuzza v. K.C.M.C., Inc., 606 So.2d 790 (La.1992). Defamation
involves the invasion of a person’s interest in his or her reputation and
good name. City of Natchitoches v. Employers Reinsurance Corp.,
02-147 (La.App. 3 Cir. 6/5/02), 819 So.2d 413. A defamatory
communication or defamatory words are those which harm the
reputation of another so as to lower him in the estimation of the
community or to deter others from associating with him. Connor v.
Scroggs, 35,521 (La.App. 2 Cir. 6/12/02), 821 So.2d 542; See also,
Sassone v. Elder, 626 So.2d 345 (La.1993).

Aymond, 928 So.2d at 728.

Ms. Bohn’s second claim, malicious prosecution, requires proof of the

following six elements.

(1) [T]he commencement or continuance of an original
criminal or civil law judicial proceeding; (2) its legal
causation by the present defendant in the original
proceeding; (3) its bona fide termination in favor of the
present plaintiff; (4) the absence of probable cause for
such proceeding; (5) the presence of malice therein; and
(6) damage conforming to legal standards resulting to
plaintiff.

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Jones v. Soileau, 448 So.2d 1268, 1271 (La.1984).

Darden v. Smith, 03-1144, p. 11 (La.App. 3 Cir. 6/30/04), 879 So.2d 390, 398-99,

writ denied, 04-1955 (La. 11/15/04), 887 So.2d 480.

Although they are different causes of action, both defamation and malicious

prosecution have “malice” as a common element, and the same factual discussion

applies to each. Ms. Bohn emphasizes her belief that “she was an authorized user”

of the credit card. Her argument, however, is unconvincing, especially considering

the fact that Mr. Miller’s complaint arose not only from Ms. Bohn’s use of the

credit card during her employ, but notably, also from her use of the credit card and

charges she made after she was no longer in his employ. Considering that Ms.

Bohn used the credit card on more than one occasion, and that she did so when she

was no longer employed by Mr. Miller, his reporting of the incident to law

enforcement simply cannot be characterized as malicious. Mr. Miller was within

his rights to notify law enforcement of what he considered to be criminal activity.

Further, the investigation and the decision to pursue and file criminal charges

against Ms. Bohn were not Mr. Miller’s action; rather, they were the independent

actions of law enforcement. Given these facts, Ms. Bohn failed to demonstrate “a

probability of success” on her claims due to an inability to show that Mr. Miller

acted with malice. La.Code Civ.P. art. 971(A)(1)

Additionally, with respect to the element of causation in a malicious

prosecution action, the jurisprudence recognizes that “[a]n independent

investigation by law enforcement of a complaint made by a citizen may break the

chain of causation between the complaint and the ultimate commencement of a

criminal proceeding.” LeBlanc v. Pynes, 46,393, p. 10 (La.App. 2 Cir. 7/13/11),

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69 So.3d 1273, 1281, writ denied, 11-1792 (La. 10/14/11), 74 So.3d 213. The

court, in LeBlanc, found that the “testimony did not indicate a separate,

independent investigation to such a degree that the chain of causation is broken”

given the evidence before it. Id. Conversely, in this case, the record establishes

that there was a complete independent investigation by law enforcement and that

Mr. Miller’s involvement ceased after he made his report to the police. These facts

are akin to those in Jalou, 43 So.3d at 1040, wherein the first circuit found that

plaintiffs “failed to show that they [could] likely prevail as to the issue of

causation” when “the defendant’s employees merely reported their suspicions [of

criminal activity] to law enforcement personnel, and the law enforcement

personnel thereupon conducted their own investigation.”

For the foregoing reasons, based upon the record, we find that Mr. Miller

satisfied his burden of proving that his reporting of Ms. Bohn’s unauthorized use

of the credit card to law enforcement was protected speech. Thereafter, Ms. Bohn

failed to satisfy her burden of proving that she was likely to prevail on the element

of malice, which is required both for her claims of defamation and malicious

prosecution. Additionally, she has not established that she is likely to prevail on

the requisite element of causation for purposes of her claim for malicious

prosecution.

DECREE

For the reasons set forth herein, we affirm the trial court judgment granting a

special motion to strike in favor of Defendant, Kenneth Miller, and dismissing Ms.

Bohn’s petition, with prejudice. Costs of this appeal are assessed to Dina M.

Bohn.

AFFIRMED.

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