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Curole v. Delcambre

Court of Appeals of Louisiana, Third Circuit

August 2, 2017

EVERETT CUROLE, JR., ET AL.
v.
RORY DELCAMBRE, ET AL.

         APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, DOCKET NO. 79, 580 HONORABLE MICHELLE M. BREAUX, PRESIDING

          Carl J. Rachal Simon Law Offices 1408 West Pinhook Rd., Suite A Lafayette, LA ATTORNEY FOR PLAINTIFFS/APPELLANTS Everett Curole, Jr., et al.

          Anthony J. Fontana, Jr. 210 N. Washington Street Abbeville, LA ATTORNEY FOR DEFENDANTS/APPELLEES Rory Delcambre and Bonnie Delcambre

          Allan L. Durand 235 La Rue France Lafayette, LA ATTORNEY FOR DEFENDANT/APPELLEE Lori F. Toups

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Phyllis M. Keaty, Judges.

          SYLVIA R. COOKS JUDGE

         This matter arose out of an incident that took place in the early morning hours of December 21, 2002. It is undisputed that seven individuals, namely Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Rayford Champagne, Glenn P. Gadrow and Lori Toups, arrived in three vehicles at the residence of Everett and Charlene Curole shortly after 3:00 a.m. It was further established that the Curole's residence was broken into, and a brutal physical attack was committed upon Mr. Curole in the Curoles' bedroom. Mr. Curole sustained serious injuries as a result of punches and kicks he received during the assault.

         Briefly, the facts indicate several hours before the attack, the Curoles were at the Café Museum bar in Erath, when they encountered Lori Toups and her companion, Glenn Gadrow. Lori recounted that Charlene Curole made some negative comments to her about Bonnie Delcambre. Lori further testified that Charlene threatened "to beat the crap out of [Bonnie] and kill her." At some point in the evening, the Curoles left Café Museum and returned to their home in Erath.

         Shortly after speaking with Charlene Curole at the bar, Lori Toups called Bonnie Delcambre and told her what had allegedly been said about her by Charlene Curole. Lori Toups made several calls to Bonnie Delcambre that evening. At the time, Bonnie Delcambre, Rory Delcambre, Quinn Delcambre, Tricia Menard and Rayford Champagne were at a Christmas party for a company that was partially owned by Rory Delcambre.[1]

         After the cell phone calls began, the Delcambre defendants left the Christmas party and went to a bar called the Boat Dock. Lori Toups and Glenn Gadrow showed up at the Boat Dock shortly thereafter. Lori Toups began speaking to Bonnie Delcambre about her conversation with Charlene Curole. Bonnie Delcambre testified she became enraged at what she was told.

         As she became more angry, Bonnie Delcambre decided she was going to confront Charlene Curole over the comments. She abruptly left the bar and proceeded to her vehicle in the parking lot. She was followed out of the bar by the others. Bonnie Delcambre then got in her vehicle, accompanied by Rory Delcambre, Trisha Menard and Rayford Champagne. Lori Toups and Glenn Gadrow followed in another vehicle, and Quinn Delcambre later joined the caravan in his vehicle.

         They first stopped at Café Museum, where Lori Toups had previously encountered the Curoles. Upon discovering the Curoles were not there, the group then proceeded to another bar, The Oaks. Once again, they discovered the Curoles were not present at that bar. At this point, Bonnie Delcambre decided to go to the Curoles' residence to confront Charlene Curole. The three vehicles then proceeded to the Curoles' residence.

         After arriving, Bonnie Delcambre went to the front door of the Curoles' mobile home and kicked it in. All seven of the defendants then entered the mobile home. Bonnie Delcambre went to the Curoles' bedroom, where they were sleeping. Bonnie Delcambre woke up Charlene Curole to confront her about the comments she allegedly made to Lori Toups. While this was occurring, Everett Curole testified he woke up and saw Bonnie Delcambre and three men standing at the foot of his bed. Mr. Curole then sustained a severe beating from several of the men, identified at trial as Rory Delcambre, Quinn Delcambre and Glenn Gadrow.

         While the assault upon Mr. Curole was ongoing, the others punched holes in the walls of the Curoles' residence. The defendants then left the scene, leaving Mr. Curole bloodied and beaten.

         Charlene Curole called 911 to report the incident. Shortly thereafter, deputies from the Vermilion Parish Sheriff's Office (VPSO) arrived at the Curoles' residence at 4:12 a.m., and took statements from the Curoles. Mr. Curole was transported from the scene by ambulance to the emergency room of Abbeville General Hospital. He sustained a broken nose, broken/cracked ribs, multiple lacerations to his face and head, and a laceration to his kidney.

         Upon leaving the Curoles' residence, all of the defendants except Quinn Delcambre went to have breakfast at a nearby restaurant. When Quinn Delcambre arrived home, there were officers from the VPSO waiting. Quinn Delcambre was questioned by police and gave a statement. He then phoned his mother to tell her that police would be heading to her residence to question her about the incident. All of the remaining defendants headed to the home of Bonnie and Rory Delcambre, where they were met by the police. Subsequently, Rory Delcambre, Bonnie Delcambre, Lori Toups and Glenn Gadrow went to the VPSO to give statements.

         Following their investigation, the Sheriff's Office filed criminal charges against Bonnie Delcambre, Quinn Delcambre and Glenn Gadrow. A civil lawsuit was filed on March 26, 2003 by the Curoles, on behalf of each other and their two minor children (Jonathan and Nicholas), against Rory Delcambre, Bonnie Delcambre, Tricia Broussard, Quinn Waguespack and Glenn Gadrow. On March 15, 2005, the petition was amended to correct the names of Tricia Broussard to Tricia Menard and Quinn Waguespack to Quinn Delcambre. The petition was also amended to add Lori Toups, Rayford Champagne and State Farm Insurance Company (the insurer of Bonnie and Rory Delcambre) as additional defendants.

         State Farm subsequently filed a motion for summary judgment, contending the intentional act exclusion barred any recovery under its policy issued to the Delcambres. The trial court granted the motion, dismissing State Farm from the claims made by the Curoles.

         Defendants Glenn Gadrow and Rayford Champagne did not file answers to the Curoles' petition. Thus, the Curoles sought a preliminary default against those defendants. On July 8, 2010, the preliminary default was obtained against the two defendants. After a confirmation hearing, the trial court found the evidence established that "defendant Glenn P. Gadrow and defendant Rayford Champagne were acting in concert with each and the other named defendants to commit intentional and willful acts upon Everett Curole and Charlene Curole to include the unauthorized entry of the Curoles' inhabited dwelling and the assault and battery upon Everett Curole and Charlene Curole[.]" Accordingly, the trial court found the two defendants liable in the following amounts[2]:

Everett Curole, General Damages

$150, 000.00

Everett Curole, Special Damages

$ 54, 413.67

Charlene Curole, General Damages

$ 50, 000.00

Nicholas Curole, Loss of Consortium Damages

$ 25, 000.00

Jonathan Curole, Loss of Consortium Damages

$ 25, 000.00

         The five remaining defendants filed a Petition to Annul the default judgment granted against defendants Glenn Gadrow and Rayford Champagne, contending the trial court erred in signing the submitted judgment that found those defendants "were acting in concert with each and the other named defendants to commit intentional and willful acts" on the Curoles. They maintained the "minutes of Court attached hereto prove that the Court made no such finding of 'acting and concert', nor could the Court have made such a finding as the [Curoles] never pleaded conspiracy in any pleading filed, nor any facts that would allege conspiracy." The Curoles filed an Exception of No Cause of Action to the defendants' Petition to Annul. On August 22, 2011, the trial court granted the Curoles' Exception of No Cause of Action and dismissed defendants' Petition to Annul.

         With respect to the other five defendants, the Curoles then filed a Motion for Summary Judgment seeking to enforce the preliminary default judgment against them on the basis they were all liable in solido. That summary judgment was opposed by the remaining defendants. In opposing the motion, Lori Toups maintained the Curoles had not alleged any conspiracy among the defendants, or that Lori Toups had assisted or encouraged the attack on Everett Curole. The other defendants also opposed the motion, similarly alleging the Curoles failed to allege any conspiracy or agreement to cause any injury to the Curoles. They also denied being involved in the infliction of any injury upon the Curoles. The trial court denied the motion for summary judgment.

         The matter then went to a bench trial on the merits which commenced on October 26, 2015. After hearing evidence and argument of counsel, the trial court took the matter under advisement. The parties were allowed to file post-trial memoranda. The trial court found in favor of the defendants and dismissed the Curoles' claims. The trial court gave reasons for ruling, which state in pertinent part:

At the trial, plaintiff's [sic] were proceeding under a conspiracy theory, however, defendant's [sic] alleged that the petition filed by plaintiff's [sic] failed to allege conspiracy with particularity. Clearly, the plaintiff[s] set forth material facts in the original Petition for Damages and the Supplemental filings. However, the heightened standard of 'conspiracy' is at issue here.
In this case, there is no dispute that all of the defendant's [sic] arrived at the Curole's [sic] residence in the early morning hours and an attack was committed upon Mr. Curole. At trial, there was testimony that the plaintiff's [sic] were awakened to find four individuals in their bedroom (Bonnie Delcambre, Rory Delcambre, Quin [sic] Waguespack Delcambre, and Glen [sic] Gadrow). It was further adduced that Ms. Charlene Curole was able to identify each of those individuals in the bedroom, however, she was unable to identify those who actually struck her husband. Accordingly, Mr. Curole was also unable to identify the attackers. Testimony was also lacking as to the 'conspiracy' theory to the events leading up to the attack in the Curole home.
In Ross v. Conoco, [02-299 (La. 10/15/02), 828 So.2d 546], the Supreme Court discussed the issue of pleading conspiracy, stating that the court of appeal began by noting that when a civil conspiracy is alleged and proven, the injured party may recover against all participants in solido, and not merely against those who physically committed the injury. The Court further explained that the civil conspiracy must be sufficiently alleged, indicating that while conspiracy may not need to be pled specifically, the petitioner must allege it in some way in the pleadings.
In the instant case, the petitioner's [sic] did not specifically allege conspiracy. Furthermore the plaintiff[s] did not nor was it proven that the defendant's [sic] intent was to cause harm to Mr. Curole. The petitioner's [sic] were only able to place the defendant's [sic] inside the house. Therefore, this Court finds in favor of the remaining defendant's [sic], dismissing petitioner's [sic] claims.

         The Curoles timely appealed the trial court's judgment in favor of the defendants, asserting the following assignments of error:

1. The trial court committed reversible error and abused its discretion by ruling that the plaintiffs were required to plead conspiracy with particularity and disallowed testimony related to the actual conspiracy.
2. The trial court committed reversible error and abused its discretion in finding that there was no conspiracy because the plaintiffs did not prove that the defendants' intent was to cause harm to Mr. Curole.

         ANALYSIS

         In their first assignment of error, the Curoles maintain the trial court committed reversible error and abused its discretion by ruling that the plaintiffs were required to plead conspiracy with particularity and disallowing testimony related to the actual conspiracy.

         A review of the trial court's reasons for ruling indicate some confusion on its part. Relying on Ross v. Conoco, 02-299 (La. 10/15/02), 828 So.2d 546, and noting language in that case declaring while a conspiracy "[need not] be pled specifically, " a plaintiff "must allege it in some way in the pleadings, " the trial court dismissed the Curoles' claims finding they failed to "specifically" plead conspiracy. We find the Curoles' pleadings sufficiently complied with the pleading requirements contained in the Louisiana Code of Civil Procedure, and find the trial court erred as a matter of law in holding there existed some heightened pleading formality requiring them to recite the word "conspiracy."

         Initially, we find the trial court's reliance on Ross was misplaced. As the Curoles note, the Ross case involved litigation by the plaintiffs seeking punitive damages under La.Civ.Code art. 2315.3 for the defendants alleged storage, handling and transportation of vinyl chloride in a wanton or reckless manner. The Ross court stated:

. . . [P]laintiffs have failed to show to this court how conspiracy to commit battery and to misrepresent fraudulently the harmful effects of vinyl chloride amount to a conspiracy to store, handle, or transport in a wanton or reckless manner the vinyl chloride that injured Ross and Landon. Even if plaintiffs did sufficiently allege a conspiracy to store, handle, or transport wantonly or recklessly the offending vinyl chloride, we find that former Article 2315.3 does not support the imposition of punitive damages against parties based solely on the physical acts of their co-conspirators.
Although Article 2324 provides for solidary liability among co-conspirators for the damage caused by a willful or intentional act, the court of appeal in this case correctly held that a court cannot assign liability for punitive damages among co-conspirators in solido. Ross v. Conoco, Inc., 2000-1757, p. 15 (La.App. 3d Cir.12/26/01), 805 So.2d 352, 365. The purpose of solidary liability is to compel any tortfeasor to pay an entire judgment. See La. Civ.Code art. 2324(A). The purposes of punitive damages, on the other hand, are to punish defendants and deter similar conduct. James v. Formosa Plastics Corp., 95-1794, p. 4 (La.App. 1st Cir.4/4/96), 672 So.2d 319, 322, writ denied, 96-1091 (La.11/22/96), 683 So.2d 285. The James court found that punitive damages cannot be assessed against co-defendants in solido because, to accomplish their purpose of punishment and deterrence, punitive damages are assessed against an individual defendant based on his individual culpability, not on the acts of others. James, 672 So.2d at 322. We agree with the First Circuit's analysis in James.
Additionally, the language of Article 2324 that co-conspirators are answerable in solido "for the damage caused by such act" indicates that the Article imposes solidary liability only for compensatory damages. . . It is compensatory damages that recompense a plaintiff for injury caused by a defendant's act. Punitive damages, on the other hand, are not caused by a defendant's act and are not designed to make an injured party "whole." Rather, they are meant to punish the tortfeasor and deter specific conduct to protect the public interest. Billiot [v. B.P. Oil Co., 93-1118, p. 11 (La.9/29/94), 645 So.2d 604, 612]. Consequently, we conclude that the solidarity imposed by Article 2324 cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator's individual conduct must fall within the scope of the applicable penal statute.

Id. at 552-53.

         Ross held that the solidary liability cannot be imposed to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator's individual conduct must fall within the scope of the applicable penal statute. In the present case, the Curoles are not seeking punitive damages, but are only seeking compensatory damages for the actions of those defendants who were engaged together in overt acts which caused the damages to them.

         Louisiana is a fact pleading state under the Louisiana Code of Civil Procedure. Springer v. Nannie O'Neal Apartments, 13-570 (La.App. 3 Cir. 11/13/13), 125 So.3d 606. Although it has always been necessary to state a cause of action and to allege the material facts constituting a cause of action, it is not necessary to allege all the evidence or legal theories supporting the basis for recovery. Id. Louisiana Code of Civil Procedure Article 854 provides:

No technical forms of pleading are required.
All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

         As the Curoles note, our Code of Civil Procedure only requires allegations with particularity in circumstances "constituting fraud or mistake." La.Code Civ.P. art. 856. The trial court's reference to a "heightened standard of 'conspiracy'" has no support in Louisiana's statutory or jurisprudential law.

         The Curoles were only required under the Louisiana Code of Civil Procedure to put forth the material facts upon which the cause of action is based. This was clearly stated by the Louisiana Supreme Court in Greemon v. City of Bossier City, 10-2828, 11-39 (La. 7/1/11), 65 So.3d 1263. In that case, the court explained Louisiana's fact pleading system:

Louisiana's Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations. See Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As described in [La.Code Civ.P.] art. 854: "No technical forms of pleading are required. All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs." The fact-pleading requirement replaces an earlier "theory of the case" pleading requirement. See [La.Code Civ.P.] art. 862, Official Revision Comments--1960, cmt. (b). Because the "theory of the case" pleading requirement has been abolished, "[s]o long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence." Cox v. W.M. Heroman & Co., Inc., 298 So.2d 848, 855 (La.1974), overruled on other grounds by A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011, p. 9 (La.6/30/95), 657 So.2d 1292, 1299. However, even though the "theory of the case" need no longer be pled, [La.Code Civ. P.] art. 891 provides that a petition "shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation." (Emphasis added.)

Id. at 1268.

         A review of the Curoles' amended petition shows it complied with the fact- pleading requirement of La.Code Civ.P. art. 854, setting forth the actions, omissions, and delictual conduct of all the named defendants:

4. While petitioners were sound asleep in their home on the date and the time aforesaid, defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Lori Toups, Rayford Champagne and Glenn Gadrow, broke down the front door of the petitioners home and thereafter engaged in a savage and brutal attack upon petitioners while they lay sleeping helplessly in their bed.
5. Petitioners awoke to the animalistic beatings being viciously administered by the defendants with fists and a pistol and utterly and completely without regard to the safety and well-being of petitioners and to the contrary, with the intent and effect of causing severe bodily injury to petitioners.
7. Petitioners show that the incident and the resulting injuries and damages were caused solely by reason of the fault, negligence, actions and omissions of duty on the part of defendants.
8. Petitioner, Everett A. Curole, Jr., alleges that the fault, negligence, actions and omissions of duty of the defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Lori Toups, Rayford Champagne and Glenn Gadrow, produced, as a cause in fact, the following physical injuries sustained by petitioner, Everett A. Curole, Jr.:
. . . .
11. Petitioner, Charlene Curole, alleges that the fault, negligence, actions and omissions of duty on the part of the defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Lori Toups, Rayford Champagne and Glenn Gadrow, produced, as a cause in fact, the ...

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