Rebecca Owens v. Joshua G. Byerly

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-262

REBECCA OWENS, INDIVIDUALLY AND ON BEHALF OF
MICAH OWENS

VERSUS

JOSHUA G. BYERLY, ET AL.

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2001-1208
HONORABLE WILFORD D. CARTER, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy and
Shannon J. Gremillion, Judges.

AFFIRMED.

John E. Jackson
Jackson Law Firm
Post Office Box 1239
Lake Charles, LA 70602-1239
(337) 433-8866
COUNSEL FOR PLAINTIFF/APPELLANT:
Rebecca Owens

Steven D. Crews
Corkern & Crews, L.L.C.
Post Office Box 1036
Natchitoches, LA 71457-1036
(318) 352-2302
COUNSEL FOR DEFENDANT/APPELLEE:
Erin Brantley

Michael W. Campbell
Caffery, Oubre, Dugas
301 E. Kaliste Saloom, Suite 301
Lafayette, LA 70508
(337) 232-6581
COUNSEL FOR DEFENDANTS/APPELLEES:
Sherman West
Kinetic Concepts Therapeutic Services, Inc.
KCI Therapeutic Services

John M. Veron
Bice, Palermo & Veron
Post Office Box 2125
Lake Charles, LA 70602-2125
(337) 310-1600
COUNSEL FOR DEFENDANT/APPELLEE:
Frank Martarona

Phillip W. DeVilbiss
Scofield, Gerard, Singletary, Pohorelsky, L.L.C.
Post Office Box 3028
Lake Charles, LA 70602-3028
(337) 433-9436
COUNSEL FOR DEFENDANT/APPELLEE:
Frank Martarona

Michael Jesse McNulty, III
Plauche, Smith & Nieset
Post Office Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT/APPELLEE:
William S. Eaves

Maurice L. Tynes
4839 Ihles Road
Lake Charles, LA 70605
(337) 479-1173
COUNSEL FOR DEFENDANT/APPELLEE:
Jonathan J. Marcantel

Michael Paul Colvin
Hannah, Colvin & Pipes
2051 Silverside Drive, Suite 260
Baton Rouge, LA 70808
(225) 766-8240
COUNSEL FOR DEFENDANT/APPELLEE:
Chad Brown

2

Paul A. Holmes
Rodd Anthony Naquin
Louisiana Municipal Association
Post Office Box 4327
Baton Rouge, LA 70821
(225) 344-5001
COUNSEL FOR DEFENDANTS/APPELLEES:
Ricky Richard
City of Dequincy

Bonita K. Preuett-Armour
Rebecca Hamernick
Armour Law Firm
Post Office Box 710
Alexandria, LA 71309
(318) 442-6611
COUNSEL FOR DEFENDANT/APPELLEE:
State Farm Fire & Casualty Insurance Company

Adrienne Thomas Bordelon
Post Office Box 3836
Baton Rouge, LA 70821-3836
(225) 342-5746
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, Department of Health & Hospitals

Jonathan Holloway
Post Office Box 80777
Baton Rouge, LA 70821-3836
(225)767-2222
COUNSEL FOR DEFENDANT/APPELLEE:
State of Louisiana, Department of Health & Hospitals

H. Alan McCall
Stockwell, Sievert, Viccellio,
Clements & Shaddock, L.L.P.
Post Office Box 2900
Lake Charles, LA 70602-2900
(337) 436-9491
COUNSEL FOR DEFENDANT/APPELLEE:
Ryan H. Thibodeaux

Ryan H. Thibodeaux
12132 Highway 171
Longville, LA 70652
DEFENDANT/APPELLEE:
In Proper Person

3

Joshua G. Byerly
1001 Blossman
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Presley L. Buxton
1244 Brown Road
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Johnny Groves
Rebecca Groves
1097 Highway 389
DeQuincy, LA 70633
DEFENDANTS/APPELLEES:
In Proper Person

Jessica M. Leger
9156 Highway 171
Ragley, LA 70657
DEFENDANT/APPELLEE:
In Proper Person

Tammy Sea
Post Offfice Box 1445
Luling, LA 70070
(504) 431-0542
DEFENDANT/APPELLEE:
In Proper Person

Copeland Goodfriend
Daley Road
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Tony Doyle
Jennifer Doyle
276 Pear Street
DeQuincy, LA 70633
DEFENDANTS/APPELLEES:
In Proper Person

Steven C. Richard, Jr.
117 D. Pruitt
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

4

Anthony G. Stanley
915 N. Overton Street
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Erica Groves
1097 Highway 389
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Adam Parker
403 LeBlanc Street
DeQuincy, LA 70633
DEFENDANT APPELLEE:
In Proper Person

Justin Van Slyke
4091 Virginia Avenue
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Philip Stanley
3381 Frank Road
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Nahkoma Doyle
1016 B. Anneker
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Vernon Yellot
151 Chavis Road
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

Angie Hand
203 Herford Street
DeQuincy, LA 70633
DEFENDANT/APPELLEE:
In Proper Person

5

AMY, Judge.

The plaintiff’s son was rendered a tetraplegic after an altercation at a party at

an acquaintance’s home. She alleged that several of the attendees, including the

defendant in this action, conspired to cause her son harm. The plaintiff contends that

the defendant joined in this conspiracy by taunting her son and writing derogatory

comments on his body after the injury. The trial court granted a partial summary

judgment after finding that the defendant did not cause physical injury to the

plaintiff’s son and did not conspire to harm him. After the partial summary judgment

was designated as final, the plaintiff filed this appeal. We affirm.

Factual and Procedural Background

This case stems from a March 4, 2000 altercation occurring at the DeQuincy

home of Joshua G. Byerly. The plaintiff, Rebecca Owens, instituted this matter,

alleging that her then sixteen-year-old son, Micah Owens, was treated differently at

the outset of the party because he was from out of town. The plaintiff alleges that

some of the individuals began taunting Micah, which created an atmosphere

contributing to a physical altercation between Micah and one of the guests, Ryan

Ware. According to the plaintiff, this altercation resulted in serious injuries to

Micah’s spinal cord and that he was paralyzed from the top of the chest down.1

The plaintiff asserts that Micah was unable to move immediately after the fight

and that certain individuals carried him to a bedroom in the home. She contends that,

once in the bedroom, Micah was refused medical assistance despite his assertion that

he needed help. She also argues that at least one member of the group pierced

Micah’s foot with a knife to determine whether he had sensation. Ultimately,

members of the group carried Micah from the bedroom, placed him in a vehicle, and

1
Micah’s deposition indicates that he has no use of or feeling in his legs or feet. He
explained that, although he has use of his arms, he has only partial use of his left hand.

drove him to the hospital, where he was carried inside.

The plaintiff filed this suit individually and on behalf of Micah. She named a

number of the party attendees, and the parents of those who were minors, as

defendants for their alleged actions on the night of the party.2 She alleged that, in

addition to the altercation with Ryan Ware, Micah’s damages were caused,

exacerbated, or contributed to by these defendants due to their actions or inactions

that evening. These actions included verbally taunting Micah and allegedly

encouraging others to accost him.

The petition included Chad Brown as a defendant. The plaintiff alleged that

Chad wrote on Micah’s body with a magic marker while he was lying injured in the

bedroom.3 The plaintiff asserted that Chad’s actions were included in the conspiracy

that resulted in physical harm, as well as mental injuries, to Micah.

Thereafter, State Farm Fire and Casualty Company, the homeowner’s insurers

of Chad’s parents, intervened and named Chad and the plaintiff as defendants. State

Farm asserted that certain policy language excluded coverage for the sustained

injuries and, furthermore, that Chad, as an adult, may not have been residing in the

insured home at the time of the injury.4 The petition’s prayer requested a judgment

2
In addition to defendants who attended the party, the plaintiff named a number of other
defendants, including the manufacturer of a therapeutic bed used in Micah’s hospitalization, for
injuries she contends were related to his subsequent treatment.
3
The precise nature of the writings is unclear. Chad explained in his deposition that he
thought Micah was intoxicated and had urinated on himself, leading him to write “I pissed on
myself” on Micah’s arm. He denied intending to harass or cause embarrassment. Instead, he felt
it was a “teasing thing.” The nurse’s notes from the hospital reported that: “There was writing on
his [left] hand that said something to effect ‘You piss from here ÷.’ There was a stick person drawn
on his [left] abdomen and a + on his [] hand.”
4
As quoted in the petition of intervention, the policy language relied upon by State Farm
provides:

“DEFINITION
4. “Insured” means you and, if resident of your household:

2

indicating that the State Farm policy did not afford coverage for the alleged injuries

and that any potential claims against it be dismissed.

State Farm filed an initial motion for partial summary judgment in November

2003, seeking a determination that Chad was not involved in a civil conspiracy and,

therefore, State Farm had no exposure for liability. The plaintiff argued at the

September 2004 hearing that State Farm could not bring the motion as the

intervention was purportedly limited to whether the policy provided coverage for

Chad and did not include the questions of physical injury and civil conspiracy. The

plaintiff asserted that, otherwise, State Farm was not a party. The trial court took the

matter under advisement, but it rendered no ruling prior to a change in the judge

assigned to the case.5 The matter was refixed and was again heard in March 2006.

a. your relatives; and
b. any other person under the age of 21 who is in the care of a person described
above.

SECTION II - EXCLUSIONS
1. Coverage L and Coverage M do not apply to:
a. bodily injury or property damage:
(1) which is either expected or intended by an insured; or
(2) to any person or property which is the result of willful and
malicious acts of an insured.

This exclusion applies to any claim made or suit brought against any insured to share
damages with or repay someone else who may be obliged to pay damages because
of bodily injury;
....
3. Coverage M does not apply to bodily injury:
....
d. to a person other than a resident employee of an insured, regularly residing
on any part of the insured location.”

5
At the time State Farm attempted to re-fix its motion for hearing, it explained that:

[T]he court heard oral arguments on defendant, State Farm Fire and Casualty
Company’s Motion for Partial Summary Judgment and Judge Painter took the matter
under advisement. Due to the fact that Judge Painter is no longer a Judge for the 14th
Judicial District Court and that Judge Bryant has recused himself from this matter,
defendant, State Farm Fire and Casualty Company, desires that the hearing on its
Motion for Summary Judgment be rescheduled.

3

State Farm also filed a supplemental motion for partial summary judgment reasserting

the arguments made in its previous supporting memorandum. In oral reasons for

ruling, the trial court determined that the plaintiff had not demonstrated sufficient

facts indicating that it could carry its burden of proof at trial.

After the hearing, but prior to the entry of judgment, the plaintiff filed a Motion

for or to Re-Urge Peremptory Exception of No Right of Action, again arguing that

State Farm’s purpose for intervening differed from the prayer contained in its motion

for summary judgment. The record contains no ruling on the exception.

Thereafter, the trial court entered a partial summary judgment, stating that:

“Chad Brown did not conspire to harm Micah Owens on March 4, 2000, thereby

relieving State Farm Fire and Casualty Company of possible exposure to solidary

liability, and further holding that Chad Brown did not cause Micah Owens any

physical harm.” The judgment was silent as to the plaintiff’s no right of action.

Subsequently, the plaintiff filed a motion for new trial. The plaintiff repeated

her argument that no right of action existed for the motion for summary judgment.

The plaintiff also re-urged its assertion that summary judgment was inappropriate due

to the presence of genuine issues of material fact. The trial court denied the motion

for new trial.

After the partial summary judgment was made final, the plaintiff filed this

appeal. She questions the entry of summary judgment on the merits and also asserts

that State Farm lacked a right of action in filing the motion.

4

Discussion

Summary Judgment

The plaintiff disputes the summary judgment insofar as it determined that Chad

was not part of a conspiracy to harm Micah and that he did not cause physical harm.

The plaintiff points to no evidence indicating that Chad directly caused physical harm

to Micah. However, she contends that the actions of the attendees at the party, taken

together, constitute a conspiracy to cause harm and that evidence indicated that Chad

and others “picked” on Micah because he was from out of town. She states in her

brief that these “comments were not made in private to friends but were instead

comments that were made in a manner loud enough for Micah to overhear and who,

upon hearing the comments, became upset and went off by himself.” This type of

action, the plaintiff alleged, contributed to the ensuing fight.

A trial court grants a motion for summary judgment when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to material fact, and that

mover is entitled to judgment as a matter of law.” La.Code Civ.P. art. 966(B). The

party seeking summary judgment has the burden of proving the motion. La.Code

Civ.P. art. 966(C)(2). However,

if the movant will not bear the burden of proof at trial on the matter that
is before the court on the motion for summary judgment, the movant’s
burden on the motion does not require him to negate all essential
elements of the adverse party’s claim, action, or defense, but rather to
point out to the court that there is an absence of factual support for one
or more elements essential to the adverse party’s claim, action, or
defense. Thereafter, if the adverse party fails to produce factual support
sufficient to establish that he will be able to satisfy his evidentiary
burden of proof at trial, there is no genuine issue of material fact.

5

Id. On appeal, an appellate court reviews a ruling on a motion for summary judgment

de novo. Hood v. Cotter, 08-0215 (La. 12/2/08), 5 So.3d 819.

The plaintiff contends that Chad’s liability stems from conspiracy. Louisiana

Civil Code Article 2324(A) provides that “[h]e who conspires with another person to

commit an intentional or willful act is answerable, in solido, with that person, for the

damage caused by such act.” However, Article 2324, alone, does not impose liability.

Ross v. Conoco, Inc., 02-0299 (La. 10/15/02), 828 So.2d 546. Rather, the claim arises

from “the tort which the conspirators agreed to perpetrate and which they actually

commit in whole or in part.” Id. at 552 (quoting Butz v. Lynch, 97-2166, p. 6 (La.App.

1st Cir. 4/8/98), 710 So.2d 1171, 1174, writ denied, 98-1247 (La.6/19/98), 721 So.2d

473).

A plaintiff attempting to recover for a tort based on a conspiracy theory must

prove that “an agreement existed to commit an illegal or tortious act, which act was

actually committed, which resulted in the plaintiff’s injury, and there was an

agreement as to the intended outcome or result.” Crutcher-Tufts Resources, Inc. v.

Tufts, 07-1566, pp. 3-4 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094 (citing Butz,

710 So.2d 1171), writ denied, 08-2677 (La. 1/16/09), 998 So.2d 105. This conspiracy

may be evidenced by “actual knowledge, overt actions with another, such as arming

oneself in anticipation of apprehension, or inferred from the knowledge of the alleged

co-conspirator of the impropriety of the actions taken by the other co-conspirator.”

Crowder v. Morris, 98-673, pp. 2-3 (La.App. 3 Cir. 10/28/98), 721 So.2d 972, 973

(quoting Stephens v. Bail Enforcement of La., 96-0809 (La.App. 1 Cir. 2/14/97), 690

So.2d 124, writ denied, 97-0585 (La. 4/18/97), 692 So.2d 454.)

6

Considering the parties’ submissions in this case, it is clear that the trial court

did not err in determining that the plaintiff failed to produce factual support sufficient

to establish that she could satisfy her evidentiary burden of proof. La.Code Civ.P. art.

966(C)(2). Accordingly, she was unable to point to genuine issues of material fact.

Id.

State Farm presented the affidavits of a number of party guests. Each detailed

the portion of the night’s events that they witnessed. The allegations against Chad

can be broken into two identifiable categories, the first being his participation in the

conduct prior to the physical altercation with Ryan Ware. Primarily, the plaintiff

contends that Chad was involved in taunting and upsetting Micah to the point where

the physical altercation was inevitable. Yet, the submissions establish little contact

between Chad and Micah. Chad denied laughing at or taunting Micah. He stated that

Micah told him to “roll on out of here” when he approached Micah and Josh Byerly,

who were involved in a conversation. Witness testimony indicates that Chad may

have later repeated the “roll on out of here” phrase to others. Whether or not this was

heard by or upset Micah, as the plaintiff alleges, there is no evidence that any of the

statements were part of an agreement to ultimately cause Micah physical injury.

Otherwise, no testimony connects Chad to the physical altercation. He

explained that, although he saw the altercation, he “didn’t go over there to it.”

Rather, he remained seated on an ice chest with his girlfriend. While Todd Martarona

testified that Jon Marcantel and Ryan Ware were “wanting to pay somebody to hit

[Micah],” the plaintiff did not demonstrate that Chad was involved in this or that he

knew of it.

7

The other portion of the events involving Chad occurred after the physical

altercation, when Micah was taken into one of the home’s bedroom. The plaintiff

asserts that Micah was handled roughly while being carried to the bedroom.

However, Chad testified that he did not see Micah taken into the bedroom. No other

testimony linked him to the transfer. Chad further denied that, after he entered the

bedroom, he saw the piercing of Micah’s foot. Of the other testifying attendees, only

Tammy Sea placed him in the room at the time Micah’s foot was pierced. Tammy

explained that she did not notice whether anyone in the bedroom was laughing while

Chad was writing on Micah, “because at the same time that’s whenever they were

poking him in the foot and saying he couldn’t move and that’s all I was really paying

attention to. I looked up and they were writing on him.” Chad explained that he left

the bedroom after Micah asked for Joshua Byerly. Even construed in favor of the

plaintiff, this evidence is insufficient to create genuine issues of material fact as to

Chad participating in or acquiescing in the foot piercing or in any conspiracy to bring

about that result.

The plaintiff contends the writings confirm the existence of a conspiracy;

however, there is no evidence that these writings resulted in physical injury. While

the writings may later be relevant to proceedings relating to mental damages, they do

not constitute physical injury.

In short, Chad’s presence at the party where offensive actions were taking place

cannot, alone, support a determination that he was part of a conspiracy to cause

Micah physical harm. While the plaintiff asserts that all of the events were part of a

common plan, the plaintiff failed to offer sufficient proof in this regard.

8

Right of Action

Finally, we address the plaintiff’s contention that the grounds for State Farm’s

intervention were at odds with the relief requested by its motion for partial summary

judgment. The plaintiff points out that she did not name State Farm as a defendant

in this matter. The plaintiff asserts that these circumstances reveal a lack of right of

action on the part of State Farm and that the trial court should have granted an

exception of no right of action, whether on the court’s own motion or upon the urging

of the plaintiff.

We find no merit in this assertion. State Farm’s petition for intervention states

that it is the insurer of Chad’s parents and that policy language excludes coverage for

either bodily injury or property damage which results from the willful and malicious

acts of an insured. It further sought the court’s determination that its policy did “not

provide coverage to Chad Brown for the claims made against him by plaintiff herein,

and that any and all potential claims against State Farm Fire and Casualty Company

be dismissed.” Finally, State Farm concluded its petition with the following request

for relief:

WHEREFORE, STATE FARM FIRE AND CASUALTY COMPANY
intervenes in this litigation to the extent necessary, and prays for
judgment of this Court declaring that the policy of homeowners’
insurance issued to Danny Brown and Juanice Brown does not provide
coverage to Chad Brown for the claims made herein by the plaintiff, and
for dismissal of any and all potential claims against State Farm Fire and
Casualty Company, in its capacity as the homeowners’ insurer of Danny
Brown and Juanice Brown.

These assertions, which were made against both Chad and the plaintiff as defendants

in intervention, were sufficiently broad to encompass State Farm’s request in its

motion for partial summary judgment for a determination that Chad neither

participated in a civil conspiracy nor that he caused Micah physical harm.

9

This assignment lacks merit.

DECREE

For the foregoing reasons, the partial summary judgment entered by the trial

court is affirmed. All costs of this proceeding are assigned to the appellant, Rebecca

Owens, individually and on behalf of her minor son, Micah Reed Owens.

AFFIRMED.

10