Purvis Touchet v. Mark Hampton

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-833

PURVIS TOUCHET

VERSUS

MARK HAMPTON

**********

APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20031894
HONORABLE JULES DAVID EDWARDS III, DISTRICT JUDGE

**********

ELIZABETH A. PICKETT
JUDGE

**********

Court composed of Michael G. Sullivan, Elizabeth A. Pickett, and Chris J. Roy, Sr.,*
Judges.

REVERSED AND RENDERED.

Waple Alan Lilley
Attorney at Law
109 Stewart St
Lafayette, LA 70501
(337) 261-3167
Counsel for Defendant-Appellee:
Mark Hampton

Carrol Lee Spell Jr.
Attorney at Law
P. O. Box 249
Milton, LA 70558
(337) 857-9772
Counsel for Plaintiff-Appellant:
Purvis Touchet

*
Honorable Chris J. Roy, Sr., participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

PICKETT, Judge.

The plaintiff-appellant, Purvis Touchet, appeals a judgment of the trial court

finding he failed to prove that Mark Hampton, the defendant, committed the

intentional tort of battery against him.

STATEMENT OF THE CASE

This is the second time this case has been before this court on appeal. In the

original appeal, the trial court granted Mr. Hampton’s motion for an involuntary

dismissal at the close of Mr. Touchet’s presentation of evidence based on a finding

that Mr. Hampton acted in self-defense. Touchet v. Hampton, 06-1120 (La.App. 3

Cir. 2/7/07), 950 So.2d 895. This court set forth the facts as follows:

The plaintiff, Purvis Touchet, was a sales manager at Hampton
Mitsubishi, a car dealership owned by the defendant, Mark Hampton, for
approximately three years. Touchet testified that he briefly left his
employment with the dealership but subsequently returned to his former
job position. He testified that his employment was terminated during the
summer of 2002.

According to Hampton, the parting was amicable. However, he
testified that in October 2002, he received a telephone call from Touchet
in which “he basically was sort of making fun of our business because
our business had gone down.” Hampton stated that he hung up the
telephone and that Touchet called back later that day. Hampton did not
speak with him. Hampton testified that when he spoke with Touchet
again, Touchet cursed him, threatened him, and told him that he knew
where he lived. According to Hampton, Touchet continued to call and
when he did not answer, Touchet left him several threatening voice mail
messages, three of which were left on October 13, 2002.

Hampton testified that on October 19, 2002, he went to Jackie
Edgar RV Center, Touchet’s place of employment, “[b]ecause it was a
public place, and I felt it was the safest place to talk to him.” Touchet
was not there. According to Hampton, he returned to Jackie Edgar RV
Center on October 22, 2002 to “tell [Touchet] to quit harassing me and
to ask him to stop calling me.” Hampton asked if Touchet was in, and
someone pointed him towards Touchet’s office. Hampton testified that
when he entered Touchet’s office, Touchet, whose back was to
Hampton, quickly turned around in his chair and yelled “F[--k] you,
Hampton.” Hampton stated that he was startled and scared because it

1

appeared as if Touchet “was going to hit me, what he said he was going
to do.” Hampton testified that he defended himself by hitting Touchet.
Although he did not know how many times he hit Touchet, Hampton
surmised that the incident lasted approximately twenty seconds before
Touchet's co-worker, David Raggette, intervened and pulled Hampton
off Touchet. Hampton immediately left the premises.

Id., 950 So.2d at 896-97 (Footnote omitted).

This court found that the trial court committed manifest error by finding that

Mr. Hampton acted in self-defense and remanded the case to allow the defendant to

present evidence. On remand, Mr. Hampton submitted the deposition of Michael

Reed, a friend of Mr. Hampton. Mr. Reed accompanied Mr. Hampton to Mr.

Touchet’s workplace three days before the incident occurred and spoke with him after

the incident occurred. The defense then rested.

The trial court issued the following findings of fact and oral reasons for ruling

in open court on January 29, 2008:

This Court makes the following factual findings, and warns that these
findings contain the offensive utterances of the plaintiff.

On Sunday, 13 October 2002, Touchet called Hampton’s home on
three separate occasions and left threatening and offensive messages.
The most significant portions of those messages are: the first message
that occurred on Sunday, October 13th at 2:41 [p.m.] contained a
significant amount of information, but the most significant was the
following language: “I am going to f--king murder your ass.” Then
there was a subsequent message on that same date at 2:45 p.m. which,
again, contained lots of threatening and offensive language, the most
significant of which was: “Anytime you want to f--k with me, let me
know.”

Then there was another message that was recorded – all these
messages were recorded on a voice mail recording system on Hampton’s
phone – this third message occurred, was delivered at 2:48 p.m., and,
again, contains lots of offensive language, the most significant of which
– the most significant because of his threat is: “Let me and you come
meet me somewhere you f--king piece of shit.”

Then on Sunday, October 19, 2002, [sic] Hampton visited
Touchet at his place of employment to tell Touchet to quit harassing

2

Hampton and stop calling Hampton. Touchet’s office within his place
of employment has glass walls. When Hampton entered Touchet’s
office Touchet was seated in his chair with the back of his chair facing
Hampton. Touchet rapidly turned his chair towards Hampton and
yelled: “F--k you, Hampton.” Then a consensual fistic encounter
occurred between Touchet and Hampton. David Ragatta [sic] did not
observe the events that immediately preceded this fistic encounter.

So those are the factual findings. Now to the analysis of those
facts coupled with the applicable law. Touchet’s recorded phone
messages to Hampton on the 13th of October 2002 constituted an offer
from Touchet to Hampton to engage in mortal combat at a time and
place to be chosen by either Touchet or Hampton. Touchet never
recounted [sic] that offer, never terminated that offer. Touchet’s
assertion that this was a limited-time offer, limited in time specifically
to the date of that offer, is incredulous and I do not believe it.

Touchet’s actions once Hampton entered Touchet’s office on 19
October 2002 constituted consent to commence mortal combat at that
time and place. Because Touchet consented to participate in a fight to
the death, Hampton’s actions during this fistic encounter were measured
– were a measured response taken to prevent the significant harm of loss
of life.

Given these findings of fact in this legal analysis this Court finds
that Touchet failed to prove that Hampton committed a battery.
Hampton, in fact, consented – I’m sorry. Touchet, in fact, consented to
the harmful touching by Hampton who accepted Touchet’s challenge
and spared Touchet’s life. Hampton’s force application was appropriate
given the circumstances and not excessive.

The trial court signed a judgment dismissing Mr. Touchet’s suit on February

22, 2008. Mr. Touchet now appeals.

ASSIGNMENTS OF ERROR

Mr. Touchet asserts two assignments of error:

1. The trial court’s findings of fact are contrary to the prior findings of the
appellate court and are manifestly erroneous.

2. The trial court’s finding that Purvis Touchet consented to Mark
Hampton’s actions was manifestly erroneous.

3

DISCUSSION

Under La.Civ.Code art. 2315, a person is liable for acts which cause damage

to another. The intentional tort of battery is “[a] harmful or offensive contact with a

person, resulting from an act intended to cause the plaintiff to suffer such a contact[.]”

Caudle v. Betts, 512 So.2d 389, 391 (La.1987). “In a suit for damages resulting from

an intentional tort, the claimant must carry the burden of proving all prima facie

elements of the tort, including lack of consent to the invasive conduct.” Landry v.

Bellanger, 02-1443, p. 15 (La. 5/20/03), 851 So.2d 943, 954. Mere words will not

justify a battery. Morneau v. Am. Oil Co., 272 So.2d 313 (La.1973).

Here, we find the trial court erred in finding that the threats and insults made

by Mr. Touchet on Mr. Hampton’s voice mail constitute Mr. Touchet’s consent to Mr.

Hampton’s actions nine days later. Mr. Hampton sought out Mr. Touchet at his place

of employment, entered Mr. Touchet’s office, and hit Mr. Touchet repeatedly until

Mr. Raggette pulled Mr. Hampton away. Furthermore, nothing that Mr. Touchet did

when Mr. Hampton entered his office can be considered consent. Turning around in

his chair, yelling an expletive at Mr. Hampton, and beginning to stand up are not

sufficient provocations to rise to the level of giving consent to a battery. The trial

court’s oral reasons are not an accurate statement of Louisiana law.

Because we find the trial court committed legal error that interdicted the fact

finding process and because we find the record to be otherwise complete, we must

conduct a de novo review of the record to determine whether there is liability and the

amount of damages, if any, that should be awarded. Ferrell v. Fireman's Fund Ins.

Co., 94-1252 (La. 2/20/95), 650 So.2d 742.

4

We find that Mr. Touchet proved that Mr. Hampton committed the intentional

tort of battery. Therefore, we find that Mr. Hampton is liable for the damage suffered

by Mr. Touchet.

At trial, Mr. Touchet claimed he suffered bruises and abrasion, neck pain, back

pain, and severe headaches. Mr. Touchet submitted medical bills in the amount of

$9,239.82. We award him that amount. Mr. Touchet also seeks damages for pain and

suffering and for the embarrassment he suffered because this incident occurred at his

workplace with co-workers and customers watching. We award Mr. Touchet

$9,000.00 in general damages for his pain and suffering and $1,000.00 for his mental

anguish and embarrassment.

CONCLUSION

We reverse the trial court’s judgment in favor of Mark Hampton finding that

Purvis Touchet did not prove lack of consent. We render judgment in favor of Purvis

Touchet and find that Mark Hampton committed the intentional tort of battery upon

the person of Purvis Touchet. We award medical damages of $9,239.82 and general

damages in the amount of $9,000.00 for pain and suffering and $1,000.00 for mental

anguish and embarrassment. Costs of this appeal are assessed to Mark Hampton.

REVERSED AND RENDERED.

5