Butler v. Koppenol

PONDER, Judge.

On September 21, 1982, we issued a writ ordering the trial court either to vacate and recall its ruling of July 19, 1982, denying relators’ motion for summary judgment and to grant judgment in favor of relators, or, in the alternative, the judge or the respondent to show cause by October 5,1982, why the writ should not be made peremptory. Despite an order to notify us and the Clerk of Court for St. Tammany Parish, we have received no notification. Despite an order to the Clerk of Court for St. Tammany Parish to send the record to us on or before the 5th day after notification by October 5, 1982, the Clerk filed the record with us on November 8, 1982. We assume therefore that the trial court elected the alternative and so notified the Clerk although such a notice was supposed to be in writing and should have been entered in the record.

Plaintiff filed suit for damages alleging that defendants caused plaintiff’s vehicle to leave the road and thereafter filed criminal charges against plaintiff. Defendants first filed some exceptions and then a motion for summary judgment of dismissal on the basis that Herbert Koppenol alone had filed the affidavit to institute charges against the plaintiff and that he had reasonable cause to believe that William Butler had breached the criminal laws.

The factual basis for this, both the original facts and the fact that Butler had voluntarily paid a judgment obtained against him on these facts, were related in an affidavit supporting the motion for summary judgment. Plaintiff did not file any affidavits or depositions in opposition to the motion but evidently relied on the allegations of his petition. The trial court denied the motion without reasons in the record.

We find manifest error. At least two of the elements of malicious prosecution are missing. It is difficult to imagine a case in which there was more probable cause or less apparent malice. See Johnson v. Pearce, 313 So.2d 812 (La.1975).

For these reasons, we make the writ peremptory and accordingly order that the Honorable John W. Greene recall and vacate his ruling of July 19, 1982, denying relators’ motion for summary judgment and grant judgment in favor of relators, Herbert Koppenol, Ophelia Koppenol, Nolan Motichek, and Lillian Motichek, dismissing plaintiff’s suit at his costs.

WRIT MADE PEREMPTORY.