SCOTT D. LEMOINE; BEVERLY P. LEMOINE
ELIZABETH P. WOLFE
ON CERTIFIED QUESTION FROM THE UNITED STATES FIFTH CIRCUIT COURT OF APPEALS.
For Appellant: Michael Seth Fawer, SMITH & FAWER, LLC.
For Appellee: Hon. James D. Caldwell, Attorney General, David G. Sanders, Bridget Benoit Denicola, Douglas Gist Swenson, LOUISIANA DEPARTMENT OF JUSTICE.
WEIMER, Justice. Hughes, J., dissenting.
[2014-1546 La.App. 1] WEIMER, Justice
Invoking Louisiana Supreme Court Rule XII, the United States Court of Appeals for the Fifth Circuit certified to this court the following question of law:
Did the dismissal of Scott Lemoine's criminal cyberstalking prosecution pursuant to Louisiana Code of Criminal Procedure article 691 constitute a bona fide termination in his favor for the purposes of this Louisiana malicious prosecution suit?
Lemoine v. Wolfe, 575 F.App'x 449, 463 (5th Cir. 2014). We accepted certification and, for the reasons set forth below, answer that question as follows: A dismissal of a criminal prosecution pursuant to La. C.Cr.P. art. 691 will constitute a [2014-1546 La.App. 2] bona fide termination in favor of the malicious prosecution plaintiff unless the charge is dismissed pursuant to an agreement of compromise, because of misconduct on the part of the accused or in his behalf for the purpose of preventing trial, out of mercy requested or accepted by the accused, because new proceedings for the same offense have been instituted and have not been terminated favorably to the accused, or when the dismissal is due to the impossibility or impracticality of bringing the accused to trial. Guided by these principles, we leave it for the Fifth Circuit to resolve whether there is sufficient evidence of a factual dispute as to the circumstances surrounding the dismissal of Scott Lemoine's criminal cyberstalking charge to preclude summary judgment on this element of a malicious prosecution cause of action.
FACTS AND PROCEDURAL HISTORY
The certified question arises from a malicious prosecution action in which the federal district court granted a motion for summary judgment in favor of the defendant, Judge Elizabeth P. Wolfe. The plaintiffs, Scott and Beverly Lemoine, appealed that decision. The facts of the case, as presented by the court of appeals, are consistent with appellate review of a summary judgment, which requires, when assessing whether a dispute exists as to any material fact, that the court refrain from making any credibility determination or weighing the evidence, and that all evidence be viewed in a light most favorable to the non-moving party and all reasonable inferences drawn in the non-moving party's favor. Lemoine, 575 F.App'x at 454, citing Trinity Universal Ins. Co. v. Employers Mut. Cas. Co., 592 F.3d 687, 690 (5th Cir. 2010), and Lawyers Title Ins. Corp. v. Doubletree Partners, L.P., 739 F.3d 848, 856 (5th Cir. 2014). As a result, the facts we recount below have been presented to us in a light most favorable to the Lemoines. Lemoine, 575 F.App'x at 451.
[2014-1546 La.App. 3] This case originated in late 2008, when Scott Lemoine took up the cause of his disabled friend, Daniel Hoover. On learning the difficulties Daniel was allegedly having with his ex-wife, Kelly Wolfe, Lemoine authored posts on a local television news website and on Daniel's Facebook page. The posts included a vague suggestion that Kelly's new ...