Thurman William Dunn v. Tunica-Biloxi Indians of Louisiana D/B/A Paragon Casino Resort

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

02-920
consolidated with 02-919 and 02-921

THURMAN WILLIAM DUNN, ET AL.

VERSUS

TUNICA-BILOXI INDIANS
D/B/A PARAGON CASINO RESORT, ET AL.

************

ON REHEARING
ON APPEAL FROM THE
TWELFTH JUDICIAL DISTRICT COURT,
PARISH OF AVOYELLES, NO. 2002-2906,
HONORABLE WILLIAM BENNETT, DISTRICT JUDGE

************

MICHAEL G. SULLIVAN
JUDGE

************

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, Michael
G. Sullivan, Elizabeth A. Pickett, and Billy H. Ezell, Judges.

Thibodeaux, C.J., concurs in part and dissents in part for the reasons assigned
in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon Casino Resort, 02-919
(La.App. 3 Cir. __/__/04), ___ So.2d ___.

AFFIRMED.

Jerold Edward Knoll
The Knoll Law Firm
Post Office Box 426
Marksville, Louisiana 71351
(318) 253-6200
Counsel for Plaintiffs/Appellants:
Lydia A. Bonnette, et al.

William B. Baggett
Wells Talbot Watson
Bagget, McCall, Burgess & Watson
Post Office Drawer 7820
Lake Charles, Louisiana 70606-7820
(337) 478-8888
Counsel for Plaintiff/Appellants:
Lydia A. Bonnette, et al.

Shelly D. Dick
Forrester, Jordan & Dick
7809 Jefferson Highway, Suite G
Baton Rouge, Louisiana 70809
(225) 928-5400
Counsel for Defendant/Appellee:
Tunica-Biloxi Indians d/b/a Paragon Casino Resort

R. Joshua Koch, Jr.
Spyridon, Koch & Palermo
3838 North Causeway, Suite 3010
Metairie, Louisiana 70002
(504) 830-7800
Counsel for Defendant/Appellee:
Tunica-Biloxi Indians d/b/a Paragon Casino Resort

James H. Gibson
Allen & Gooch
Post Office Box 3768
Lafayette, Louisiana 70502-3768
(337) 291-1000
Counsel for Defendant/Appellee:
New Horizon Kids Quest, Inc.

George D. Ernest, III
Hurlburt, Privat & Monrose
Post Office Drawer 4407
Lafayette, Louisiana 70502-4407
(337) 237-0261
Counsel for Defendant/Appellee:
Berg, Inc.

Patrick J. Hanna
Kay Karré Gautreaux
Rabalais, Hanna & Hebert
701 Robley Drive, Suite 210
Lafayette, Louisiana 70503
(337) 981-0309
Counsel for Defendant/Appellee:
Tunica Biloxi Construction Company

Bonita K. Preuett-Armour
Armour Law Firm
Post Office Box 710
Alexandria, Louisiana 71309
(318) 442-6611
Counsel for Defendant/Appellee:
Glen Moreau d/b/a G. W. Moreau Metal Buildings, Inc.

Steven C. Judice
Keogh, Cox & Wilson
Post Office Box 1151
Baton Rouge, Louisiana 70821
(225) 383-3796
Counsel for Defendant/Appellee:
Larry Stockwell Heating & Air Conditioning, Inc.

Richard D. Chappuis, Jr.
Voorhies & Labbe
Post Office Box 3527
Lafayette, Louisiana 70502
(337) 232-9700
Counsel for Defendant/Appellee:
Kirby M. Pecot d/b/a Pecot & Company Architects

Albert Dale Clary
Attorney at Law
4041 Essen Lane, Suite 500
Baton Rouge, Louisiana 70809
(225) 922-5110
Counsel for Defendant/Appellee:
M & E Consulting, Inc.

ON REHEARING

For the reasons expressed in Bonnette v. Tunica-Biloxi Indians d/b/a Paragon

Casino Resort, 02-919 (La.App. 3 Cir. __/__/04), ___ So.2d ___, on rehearing, the

judgment of the trial court is affirmed. Costs of this appeal are assessed to

Plaintiffs/Appellants.

AFFIRMED.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

02-919
consolidated with 02-920 an 02-921

LYDIA A. BONNETTE, ET AL.

VERSUS

TUNICA-BILOXI INDIANS D/B/A PARAGON CASINO RESORT, ET AL.

THIBODEAUX, C.J., concurring in part and dissenting in part.

I would deny in part and grant in part the application for rehearing filed

by the plaintiffs.

While there is some support for a waiver of immunity by the Tribe in the

Tribal-State Compact, that support is too ambiguous. A waiver of immunity must be

clearly expressed and unequivocal. Kiowa Tribe of Oklahoma v. Manufacturing

Technologies, 523 U.S. 751, 118 S.Ct. 1700 (1998), though somewhat critical of the

extension of sovereign immunity to non-traditional tribal enterprises such as gaming,

nonetheless concluded that legislative action was necessary to extinguish tribal

sovereign immunity. Like the United States Supreme Court, I entertain serious doubts

about the propriety of sovereign immunity under the circumstances of this case. I am

not prepared, however, to judicially impose limits where doubts still exist.

I continue to feel that the trial court’s joinder of the Tribe as a party

necessary for just adjudication is incorrect. In fact, I would go even further than the

views expressed in my original dissent. Rather than remand for a full hearing to

establish the relationship of the parties, I would reverse and render judgment.

Articles 641 and 642 of the Louisiana Code of Civil Procedure are

patterned after Rule 19 of the Federal Rules of Civil Procedure. While there is a slight

difference in language, the substance is substantially the same. Thus, Temple v.

Synthes Corp., Ltd., 498 U.S. 5, 111 S.Ct. 315 (1990), is highly instructive. The Tribe

is a potential joint tortfeasor just as the doctor and hospital were potential joint

tortfeasors in Temple. The United States Supreme Court explained:

It has long been the rule that it is not necessary for all joint
tortfeasors to be named as defendants in a single lawsuit. .
. . The Advisory Committee Notes to Rule 19(a) explicitly
state that “a tortfeasor with the usual ‘joint-and-several’
liability is merely a permissive party to an action against
another with like liability.” . . . There is nothing in
Louisiana tort law to the contrary.

Id. at 7. (Citations omitted).

Louisiana Civil Code Article 2324 does not change the result. Article

2324 states that if liability is not solidary pursuant to paragraph A of that Article, then

it is joint and divisible. In other words, Article 2324 changed the relationship of the

parties in a tort action and thus affected the legal consequences flowing from that

relationship. It does not say that all joint tortfeasors are necessary parties. In fact, as

I see it, the companion to Article 2324, Article 2323, supports the plaintiffs. The

majority opinion states that “[t]he facts as alleged suggest the possibility of

independent negligence on the part of the Tribe as a joint obligor, but it is immune in

state district court.” However, Articles 2323 and 2324 both say that fault will be

determined regardless of immunity.

While it is true that defendants other than the Tribe will be responsible

only for their respective percentages of fault, the parties to the action (the plaintiffs

and the remaining named defendants) will have complete relief vis-a-vis each other.

If complete relief cannot be had except by joinder of all parties, that is, all joint

tortfeasors, then how does one join a phantom tortfeasor? Does every party whose

2

fault or negligence causes injury have to be joined? No. Neither Article 2323 nor

La.Code Civ.P. art. 1812(C) requires this. In fact, La.Code Civ.P. art. 1812(C)(2)(a)

specifically refers to a “nonparty” whose fault can be determined and placed on a jury

verdict sheet.

A likely interpretation of the majority opinion on the joinder of the Tribe

is that all parties whose liability is joint and divisible must be parties necessary for just

adjudication and, therefore, must be joined. While that tenuous conclusion may be

reached on the basis of our decision today, it certainly is not the law and should not

be the law.

Temple did not remand. Temple concluded that because the threshold

requirements of Rule 19(a) (similar to Article 641) had not been met, no inquiry was

necessary under Rule 19(b). (Similar to Article 642). Thus, rather than remanding.

I would simply reverse.

I would also grant a rehearing and reverse on the question of

consolidation. The error in joining the Tribe in the Jeansonne case is particularly

glaring because the Tribe was not sued. The plaintiffs sued only Kids Quest. Kids

Quest then filed a third party demand against the Tribe. The plaintiffs are seeking

100% of the damages against Kids Quest. Presumably, Kids Quest is seeking

indemnity or contribution from the Tribe in the event it becomes liable in damages.

The Tribe is not needed for complete relief. If Kids Quest is burdened with liability

and damages, it can then proceed against the Tribe in tribal court, or state court for

that matter. The Tribe will then assert any defenses it would have. Thus, it is not

being prejudiced. Further, to allow the trial court to consolidate by comparing the

petitions “side by side” in drawing a conclusion with regard to the existence of

common issues of law and fact does not equate to a hearing and a finding as

contemplated by La.Code Civ.P. art. 1561.

3

For the foregoing reasons, I respectfully concur in part and dissent in

part.

4