Opinion
2013 CA 2050
05-29-2014
KEVIN C. GUILLOT v. RORY ESCHETE, CATERING CONSULTANTS OF LOUISIANA, LLC, D/B/A CYPRESS COLUMNS, ABC INSURANCE COMPANY AND DEF INSURANCE COMPANY
Eric L. Trosclair Christopher H. Riviere Thibodaux, Louisiana Counsel for Plaintiff/Appellant Kevin C. Guillot Woody Falgoust Cassie Rodrigue Braud Thibodaux, Louisiana Counsel for Defendants/Appellees Rory Eschete and Catering Consultants of Louisiana, LLC, d/b/a Cypress Columns
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Thirty-Second Judicial District Court
In and for the Parish of Terrebonne
State of Louisiana
No. 155,436
Honorable Randall L Bethancourt, Judge Presiding
Eric L. Trosclair
Christopher H. Riviere
Thibodaux, Louisiana
Counsel for Plaintiff/Appellant
Kevin C. Guillot
Woody Falgoust
Cassie Rodrigue Braud
Thibodaux, Louisiana
Counsel for Defendants/Appellees
Rory Eschete and Catering Consultants
of Louisiana, LLC, d/b/a Cypress
Columns
BEFORE: PETTI GREW, McDONALD, AND McCLENDON, JJ.
McCLENDON, J.
Plaintiff, who was involved in an altercation with his business partner, appeals a trial court judgment to the extent that it assessed him 75% fault for the altercation, found that his neck injury was unrelated to the altercation, denied his claim for lost wages, and awarded his business partner $3,750.00 in general damages. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This litigation arises from an altercation that occurred on June 11, 2008, between Rory Eschete and Kevin Guiflot, who were both members and employees of Catering Consultants of Louisiana, LLC, the company that owns The Cypress Columns, a banquet facility in Gray, Louisiana.
On June 11, 2008, Mr. Eschete arrived at The Cypress Columns around 10:00 a.m. It was his first day back after a week-and-a-half out of the office undergoing and recovering from lumbar surgery in Tampa, Florida. While sorting mail and paying bills, Mr. Eschete discovered an AT&T bill for an advertising service, which had been authorized by Mr. Guillot. Mr. Eschete believed the service authorized by Mr. Guillot was duplicative of services The Cypress Columns already had in place. After speaking with an AT&T representative, Mr. Eschete was informed that AT&T could reduce the bill if Mr. Guillot would confirm that he had no authority to approve the charge on behalf of the company.
According to Mr. Guillot, while Mr. Eschete was out of the office for his surgery, he was preparing to buy out Mr. Eschete's interest in The Cypress Columns. Prior to Mr. Eschete's surgery, Mr. Guillot and Mr. Eschete had been discussing a potential buyout, and Mr. Guillot believed that the two had reached an agreement, subject to Mr. Guillot securing financing. On the morning of the incident, Mr. Guillot indicated that he was running errands related to purchasing the company. Also, according to a chart note from Dr. William St. Martin, Mr. Guillot's treating physician, Mr. Guillot had visited Dr. St. Martin's office that same day "complaining of stress."
Dr. St. Martin's chart notes from the June 11, 2008 visit also reflect that Mr. Guillot's current medications included Cymbalta and Valium, the latter of which was his girlfriend's prescription. Mr. Guillot testified that he did not recall seeing Dr. St. Martin on the day of the incident and denies taking any medications that day.
Mr. Guillot arrived at The Cypress Columns around 2:15 p.m. and went to the office he and Mr. Eschete shared. According to Mr. Eschete, Mr. Guillot seemed to be "dazed" and was not feeling well.
Mr. Eschete then asked Mr. Guillot to make a call to AT&T and inform AT&T that he did not have authority to make the charge for the advertising service. Mr. Guillot indicated that Mr. Eschete was in essence wanting him to call AT&T and "lie," because Mr. Guillot did have authority to bind the company. Mr. Guillot indicated that what Mr. Eschete was requesting him to do did "infuriate" him and that their conversation "got heated."
Ms. Theresa LeBouef, a manager and event coordinator at The Cypress Columns, had an office across the walkway. She indicated that she could hear a "loud discussion," and that Mr. Guillot's voice was raised, but Mr. Eschete's voice was not. She then entered the office to ask about an upcoming wedding The Cypress Columns was hosting. She indicated that Mr. Guillot, who was seated, appeared to be "very agitated." Mr. Eschete then walked her to the door and asked her to give him and Mr. Guillot "a moment." The parties dispute what happened next.
According to Mr. Eschete, after Ms. LeBouef left the office, he walked to the chair where Mr. Guillot was seated and tried to calm him down. Mr. Eschete indicated that he may have touched Mr. Guillot's shoulder when he placed his hand on Mr. Guillot's chair, but it was not in an aggressive manner. Mr. Eschete testified that Mr. Guillot then struck him with his elbow, hitting Mr. Eschete near his left ear. Mr. Eschete averred that after Mr. Guillot struck him, Mr. Guillot stood up and "faced me." Mr. Eschete indicated that he believed Mr. Guillot was "coming at me again, and that's when I hit - I defended myself. I hit him." Mr. Eschete opined that he struck Mr. Guillot "two or three times." Mr. Eschete asserted that he was then able to position his body on top of Mr. Guillot's to hold him down, until Mr. Guillot stopped struggling with him. Once Mr. Guillot stopped struggling and was out of breath, Mr, Eschete indicated that he "released and got up and backed off." Mr. Eschete noted that during the struggle, his shirt was ripped and the top of a chair was broken.
According to Mr. Guillot, he remained seated after Ms. LeBouef left and Mr. Eschete "walks up and pretty much tells me that ... this is my ... company, I'm gonna run it the way I want it, and he's pointing in my face. And I'm sure I made a comment and the next thing I know I get punched in the face, and the altercation occurred." Mr. Guillot indicated that Mr. Eschete jumped on top of him, and the wooden chair in which he was sitting broke. Mr. Guillot testified that he grabbed Mr. Eschete's shirt to prevent Mr. Eschete from gaining any leverage, and the two scuffled for about a minute and a half. At that point, Mr. Guillot claims that Mr. Eschete grabbed him by the neck and picked him up off the ground. Mr. Guillot indicated that he felt something in his neck snap, his right side went numb, and he yelled. Thereafter, Mr. Eschete let him go.
Mr. Guillot filed suit, naming Mr. Eschete and The Cypress Columns as defendants, seeking damages for the alleged injuries sustained in the incident with Mr. Eschete. Mr. Guillot alleged that Mr. Eschete's battery inflicted serious injuries upon Mr. Guillot's "lumbar and cervical spine as well as aggravated pre-existing conditions to same." Mr. Eschete filed a reconventional demand.
Following a bench trial, the trial court determined that both Mr. Guillot and Mr. Eschete were at fault for committing battery on each other, and assessed Mr. Guillot with 75% fault and Mr. Eschete with 25% fault. As to damages, the court found:
Guillot's claim regarding the nature, severity and duration of his alleged injuries, is not supported by the evidence. His primary complaint, neck pain, was not caused by the fight. It was proximately caused by three factors: a pre-existing cervical fusion[;] a water sports injury Guillot sustained approximately two weeks before the fight; and a subsequent motor vehicle collision. Guillot's secondary complaints, swallowing and choking problems,The trial court found that Mr. Guillot sustained soft tissue injuries and lacerations that resolved in two or three weeks. It awarded Mr. Guillot $3,750.00 in general damages and past medical expenses totaling $5,580.45, which was reduced by his percentage of fault. On his reconventional demand, the trial court awarded Mr. Eschete $3,750.00 in general damages for his soft tissue injuries, which was also reduced by his percentage of fault.
were not caused by the fight, either. They were proximately caused by his pre-existing cervical fusion and by post-surgical complications related to injuries he sustained in a motor vehicle collision six months after the fight.
Mr. Guillot has appealed, assigning the following as error:
1.)The district court erred in finding Kevin Guillot 75% at fault for the altercation.
2.) The district court erred in failing to find Rory Eschete 100% at fault for the altercation.
3.) The district court erred in failing to find that Kevin Guillot's post altercation medical treatments and surgical procedures were not proximately caused by the altercation.
4.) The district court erred in finding that Kevin Guillot's post altercation medical treatments and surgical procedures were proximately caused by his pre-existing cervical fusion, a water sports injury and a motor vehicle collision.
5.) The district court erred in failing to award Kevin Guillot lost wages.
6.) The district court erred in awarding Kevin Guillot only $3,750.00 in general damages.
7.) The district court erred in awarding Rory Eschete general damages.
DISCUSSION
Standard of Review
The standard of appellate review of factual determinations is manifest error. Stobart v. State through DOTD, 617 So.2d 880, 882 (La. 1993). The two-part test for the appellate review of facts is: 1) whether there is a reasonable factual basis in the record for the finding of the trial court, and 2) whether the record establishes that the finding is not manifestly erroneous. See Mart v. Hill, 505 So.2d 1120, 1127 (La. 1987). Even though an appellate court may feel its own evaluations and inferences are more reasonable than the fact finder's, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review where conflict exists in the testimony. Stobart, 617 So.2d at 882. If the trial court or jury's findings are reasonable in light of the record reviewed in its entirety, the court of appeal may not reverse, even if convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-83. Where the fact finder's determination is based on its decision to credit the testimony of one of two or more witnesses, that finding can virtually never be manifestly erroneous. Bellard v. American Cent. Ins. Co., 07-1335 (La. 4/18/08), 980 So.2d 654, 672.
Allocation of Fault
In assignments of error numbers one and two, Mr. Guillot asserts that the trial court committed manifest error by finding him 75% at fault and Mr. Eschete only 25% at fault for the altercation. Mr. Guillot asserts that Mr. Eschete turned the argument into a physical altercation by approaching him and placing his hand on Mr. Guillot's shoulder. Mr. Guillot also asserts that the trial court failed to consider the fact that Mr. Eschete, knowing that Mr. Guillot was stressed and agitated, made a demand that Guillot call an AT&T representative to lie about his authority to enter into the contract. Additionally, Mr. Guillot avers that nothing prevented Mr. Eschete from leaving the room after he spoke to Ms. LeBouef or after receiving the alleged elbow from Mr. Guillot. Mr. Guillot also asserts that the trial court failed to consider that Mr. Eschete grabbed Mr. Guillot after the initial scuffle ended, resulting in the significant injuries alleged by Mr. Guillot. Lastly, Mr. Guillot contends that the trial court failed to consider the actions taken by Mr. Eschete following the incident.
Mr. Guillot notes that he called 911 for help, while Mr. Eschete called the district attorney.
We note that the trier of fact is owed some deference in allocating fault, since the finding of percentages of fault is a factual determination. Duncan v. Kansas City Southern Railway Co., 00-0066 (La. 10/30/00), 773 So.2d 670, 680, cert. dismissed, 532 U.S. 992, 121 S.Ct. 1651, 149 L.Ed.2d 508 (2001). Thus, a trier of fact's allocation of fault is subject to the manifestly erroneous or clearly wrong standard of review. See Stobart, 617 So.2d at 882. Allocation of fault is not an exact science or the search for one precise ratio, but rather an acceptable range, and any allocation by the fact finder within that range cannot be clearly wrong. Foley v. Entergy Louisiana, Inc., 06-0983 (La. 11/29/06), 946 So.2d 144, 166.
We note that Mr. Guillot's arguments in regard to allocation of fault are all factual issues that were addressed by the parties during trial. Following our thorough review of the record, we conclude that a reasonable basis exists for the trial court to have believed that Mr. Guillot was the aggressor and that Mr. Eschete reacted to Mr. Guillot's actions, but used unnecessary force. Because two permissible views of the evidence exist, we cannot conclude that the fact finder's choice between them is manifestly erroneous or clearly wrong. In light of the foregoing, we also cannot conclude that the trial court was manifestly erroneous in its allocation of fault. Assignment of error numbers one and two are without merit.
Injuries and Causation
In his third and fourth assignments of error, Mr. Guillot asserts that the district court erred in failing to find that the altercation did not cause his post-altercation medical conditions. Mr. Guillot contends that the trial court committed legal and manifest error by not applying the presumption in Housley v. Cerise, 579 So.2d 973 (La. 1991) and determining that Mr. Eschete's battery aggravated Mr. Guillot's pre-existing cervical condition necessitating his post-altercation medical treatments.
The "Housley presumption" has its root in worker's compensation suits dating to 1917. These early cases contemplated a situation in which an accident caused a dormant injury to become symptomatic. Housley was the first time that the Louisiana Supreme Court applied the presumption to a non-worker's compensation case. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, 560 n.2.
In Housley, 579 So.2d at 980, the Louisiana Supreme Court established three essential requirements a plaintiff must establish before he can benefit from a presumption of causation: (1) good health prior to the accident at issue; (2) symptoms of the alleged injury appear and continuously manifest themselves subsequent to the accident at issue; and (3) medical evidence demonstrates a reasonable possibility of causation exists between the accident and the injury claimed. The application of the Housley presumption is a factual issue which is subject to the manifest error standard of review. Detraz v. Lee, 05-1263 (La. 1/17/07), 950 So.2d 557, 563.
Mr. Guillot notes that he had a cervical fusion at the C6-7 level in 2006, but contends that he had recovered and had been released from care by his primary surgeon in December 2007. Mr. Guillot asserts that prior to the altercation, he was only taking Klonopin, Cymbalta, and Valium for stress and anxiety, but was not taking any medications for neck pain. Additionally, Mr. Guillot notes that the records from his family physician on the morning of the altercation reflect that Mr. Guillot only presented complaints of stress, and did not indicate that Mr. Guillot was having any complaints of neck pain.
The trial court, however, found that Mr. Guillot injured his neck in a water sports injury less than two weeks before the altercation. At trial, Ms. LeBouef testified that when Mr. Eschete was out of the office for his back surgery, Mr. Guillot told her that "he had been out on the lake with some friends and that he had hurt his back being pulled behind the boat in some type of water sport." Mr. Richard Tedesco, the executive chef at The Cypress Columns, was also present and confirmed that Mr. Guillot indicated that he had hurt his back while being pulled behind a boat.
On the other hand, Mr. Guillot testified that no water sports injury had occurred. The other individuals who were on the boat with Mr. Guillot were not called to testify.
Ms. LeBouef also testified that Mr. Guillot informed her "that he was on Soma for his back, and that he was [lying down] to relax his back." Ms. LeBouef further indicated that although Mr. Guillot mentioned his back in general, she had no knowledge of the specific location of the pain. Moreover, Ms. LeBouef indicated that while Mr. Eschete was out of the office for surgery, she did not call Mr. Guillot to do anything "because I knew he was injured." Dr. Christopher E. Cenac, Mr. Guillot's orthopaedic spine surgeon, opined that a water sports accident could cause a neck injury.
Moreover, despite his right side allegedly going numb during the incident, the trial court noted that Mr. Guillot refused emergency care at the scene. The trial court noted that Mr. Guillot "delayed seeking medical care until he had first shown his daughter what "Uncle Rory' had done and then had his injuries photographed by his girlfriend." Further, the trial court noted that the post-altercation imaging studies revealed no acute trauma.
Additionally, both Dr. Cenac and Dr. Robert Marshal, who Mr. Guillot is seeing for pain management, testified that anabolic steroids can weaken ligaments and cause osteoporosis, which is the weakening of the bones and reduction of bone mass. Mr. Guillot acknowledged that he took anabolic steroids while bodybuilding. Mr. Guillot was a competitive bodybuilder from 1985 through 1998.
Considering the foregoing, we cannot conclude that the trial court manifestly erred in failing to apply the Housely presumption. Moreover, we find no manifest error in the trial court's conclusion that the altercation did not cause Mr. Guillot's neck injury.
Given the trial court's conclusion that the neck injury was unrelated to the altercation, we likewise cannot conclude that the trial court abused its discretion in awarding Mr. Guillot $3,750.00 in general damages.
Assignments of error numbers three, four, and six are without merit.
Lost Wages
In assignment of error number five, Mr. Guillot also asserts that the trial court erred in failing to award him lost wages. Mr. Guillot avers that under the operating agreement, Mr. Eschete had no authority to terminate his employment. Mr. Guillot asserts that Mr. Eschete did not have such authority until Mr. Eschete acquired the membership interest of the other members in late June or early July 2008. Mr. Guillot also notes that Mr. Eschete sought a temporary restraining order (TRO). Although the TRO was later dismissed, Mr. Guillot asserts that he was prevented from returning to work and never received any further compensation from The Cypress Columns through June 2008. Mr. Guillot concludes that he is owed his salary for the month of June 2008, totaling $2,916.67.
A plaintiff seeking damages for past lost wages bears the burden of proving lost earnings. Graham v. Offshore Specialty Fabricators, Inc., 09-0117 (La.App. 1 Cir. 1/8/10), 37 So.3d 1002, 1015. An award for lost wages is subject to the manifest error standard of review because such damages must be proven with reasonable certainty. Boudreaux v. State, Dept. of Transp. & Dev., 04-0985 (La.App. 1 Cir. 6/10/05), 906 So.2d 695, 705, writ denied. 05-2164 (La. 2/10/06), 924 So.2d 174, and writ denied 05-2242 (La. 2/17/06), 924 So.2d 1018. Following our review of the record, we cannot conclude that the trial court was manifestly erroneous in finding that Mr. Guillot failed to prove his claim for lost wages with reasonable certainty. Assignment of error number five is without merit.
Award of Damages to Mr. Eschete
In assignment of error number seven, Mr. Guillot contends that Mr. Eschete did not request any affirmative judgment for damages in his favor from the trial court. Accordingly, Mr. Guillot concludes that it was reversible error for the trial court to award Mr. Eschete $3,750.00 in general damages.
We note that Mr. Eschete filed a reconventional demand. Therein, Mr. Eschete alleged that Mr. Guillot injured his "back, legs, and face," which required medical treatment and care. During closing, Mr. Eschete's counsel left the discretion to the judge as to whether damages were warranted. Moreover, in his post-trial memorandum, Mr. Eschete did not indicate that he was not seeking damages, but only that his damages were not "significant." Additionally, Mr. Guillot failed to challenge the amount of general damages awarded to Mr. Eschete, arguing only that damages were not requested.
Mr. Guillot indicated that he had an additional lumbar surgery in August 2008 following the incident, but admitted that he could not prove causation.
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Considering the foregoing, we conclude that the issue of Mr. Eschete's damages was properly before the trial court. Accordingly, we affirm the general damage award. Assignment of error number seven is without merit.
CONCLUSION
For the foregoing reasons, the March 11, 2013 judgment of the trial court is affirmed. Costs of this appeal are assessed to appellant, Kevin C. Guillot.
AFFIRMED.