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Binoom v. Kirby

Court of Appeals of Louisiana, First Circuit

April 23, 2019

MELVIN BINOOM
v.
DONNIE M. KIRBY, HUEY'S BAR, LLC, ABC INSURANCE COMPANY, & DEF INSURANCE

          On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. C634059 Honorable Donald R. Johnson, Judge Presiding [1]

          Jonathan E. Mitchell Michael C. Palmintier Baton Rouge, Louisiana Counsel for Plaintiff/Appellant Melvin Bindom

          Gregory T. Stevens Shelton Dennis Blunt Kelly Kromer Boudreaux Jack B. Stanley Baton Rouge, Louisiana Counsel for Defendants/ Appellees Higbee Lancoms, LP and Derrick Zmarquest McNeil

          BEFORE: WHIPPLE, C.3., McCLENDON, AND HIGGINBOTHAM, JJ.

          MCCLENDON, J.

         In this suit for defamation, the plaintiff appeals the trial court judgment that granted the defendants' motion for summary judgment and dismissed the plaintiff's claims with prejudice. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On August 10, 2013, Deputy David Moran, Jr., a reserve deputy with the East Baton Rouge Parish Sheriff's Office, was working a detail at the Dillard's department stores at the Mall of Louisiana.[2] While in the women's store in the mall, Deputy Moran was notified by Dillard's loss prevention department that there was a person being monitored for shoplifting at the other Dillard's store. He began walking toward the other store and was notified that a theft was in progress and that the suspect was going out the door with a set of pots and pans without paying for them. Deputy Moran was given a description of the suspect and the clothes he was wearing. He went to the parking lot, got in his marked patrol vehicle, and proceeded towards the door he was told the suspect exited. As he turned down the parking aisle towards the exit, Deputy Moran saw a white vehicle approaching him driven by a man matching the description given to him. Deputy Moran turned on his lights and siren, but rather than stop, the driver went around the deputy's vehicle. The driver had his window rolled down, and as he passed, he looked at Deputy Moran, who told the driver to stop. The driver failed to comply. Deputy Moran pursued the driver with his lights and siren on and observed him as he failed to stop at a stop sign exiting the parking lot, ran a red light before getting on Interstate 10 westbound, caused several vehicles to swerve to avoid hitting him, changed lanes without signaling, and swerved in and out of traffic. Deputy Moran was able to pull alongside the vehicle on the interstate, obtain a good look at the driver, and motion him to pull over. The driver ignored Deputy Moran's request. When Deputy Moran reached the area of the Acadian Thruway exit, he was advised by his supervisor to terminate the pursuit.

         At some point, Deputy Moran was told by someone in the loss prevention department that the suspect in the theft from Dillard's might be Melvin Bindom, who had a history of theft at Dillard's and had been banned from the store. After his return to Dillard's, Deputy Moran ran Mr. Bindom's name in a database for Louisiana driver's license and identification information used by law enforcement personnel. The database contained a photograph of Mr. Bindom, as well as his criminal record. Deputy Moran believed the person in the photograph was the same person he had pursued on the interstate.

         Thereafter, Deputy Moran viewed Dillard's surveillance footage showing the person who shoplifted the pots and pans from the store and exited into the parking lot. Deputy Moran observed that the suspect in the video was wearing the same clothing as the person he encountered in the parking lot and pursued on the interstate. The suspect also exited the store in the same area where Deputy Moran first saw him.

         Deputy Moran filled out an arrest report following the incident, in which he listed several offenses, including theft of goods. He then filled out an affidavit for an arrest warrant, which was issued. Mr. Bindom was subsequently arrested and placed into custody on October 4, 2013. Deputy Moran also went to the prison on October 14, 2013, to interview Mr. Bindom and confirmed that Mr. Bindom was the same person in the vehicle he pursued from Dillard's.[3]

         At Mr. Bindom's criminal proceeding, Deputy Moran was advised by the assistant district attorney that the State was not going to prosecute the case. The assistant district attorney noted on the bill of information that after "review of [the] video from Dillard's ... and after consultation with deputy and LPO - cannot prove [defendant's] identity as the thief beyond a reasonable doubt." (R. p. 297). Mr. Bindom was released from jail on February 12, 2014.

         Thereafter, on October 3, 2014, Mr. Bindom filed a Petition for Damages against several defendants, including Higbee Lancoms, LP, as the owner and operator of Dillard's (Higbee), and Derrick Zmarquest McNeil, an employee of Dillard's in the loss prevention department. In his petition for damages, Mr. Bindom alleged that Higbee and Mr. McNeil were negligent in that they failed to exercise due care in ascertaining the identity of the subject of a criminal complaint; failed to properly review security footage prior to making a criminal complaint; failed to communicate all necessary and proper information to law enforcement officials during a criminal investigation; and failed, generally, to maintain the standard of care required. Mr. Bindom also asserted that Higbee was vicariously liable for the negligent acts of its employee, Mr. McNeil, performed in the course and scope of his employment. Mr. Bindom claimed that, as a result of the defendants' actions, he suffered damages for "extreme emotional distress, public embarrassment and humiliation, loss of enjoyment of life, and deprivation of constitutionally-protected rights."

         Higbee and Mr. McNeil answered the petition, asserting several affirmative defenses, including qualified immunity for those who report suspected criminal activity. Thereafter, they filed a motion for summary judgment. Following the hearing on the motion, the trial court took the matter under advisement. On July 19, 2017, the trial court signed a judgment granting the motion for summary judgment on behalf of Higbee and Mr. McNeil and dismissing all of Mr. Bindom's claims against ...


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