Ernest and Irene Lee v. Courtney John Rhodes

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 12-611

ERNEST AND IRENE LEE

VERSUS

COURTNEY JOHN RHODES, ET AL.

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APPEAL FROM THE
SEVENTH JUDICIAL DISTRICT COURT
PARISH OF CONCORDIA, NO. 45055
HONORABLE LEO BOOTHE, DISTRICT JUDGE

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JIMMIE C. PETERS
JUDGE

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Court composed of Jimmie C. Peters, J. David Painter, and James T. Genovese,
Judges.

REVERSED AND RENDERED.

Jack Forsythe Owens Jr.
Owens & Lemke, Inc.
P. O. Box 595
Harrisonburg, LA 71340
(318) 744-5431
COUNSEL FOR PLAINTIFFS/APPELLEES:
Ernest and Irene Lee

John B. Hoychick
Cotton, Bolton, Hoychick & Doughty, LLP
P. O. Box 857
Rayville, LA 71269
(318) 728-2051
COUNSEL FOR DEFENDANTS/APPELLANTS:
Courtney John Rhodes
Michael Rhodes
James Vidrine

PETERS, J.

The plaintiffs, Ernest and Irene Lee, brought suit against Courtney John

Rhodes, Michael Rhodes, and James Vidrine to recover damages for the wrongful

death of their son, Michael Ernest Lee. The defendants appeal a trial court

judgment awarding the plaintiffs monetary damages. For the following reasons,

we reverse the trial court judgment and render in favor of the defendants, rejecting

the plaintiffs’ claims for damages.

DISCUSSION OF THE RECORD

Michael Ernest Lee died on the evening of November 26, 2008, after a rural

Concordia Parish, Louisiana physical altercation involving the defendants. His

body was ultimately transferred to the Jefferson Parish Forensic Center (“Forensic

Center”) in Harvey, Louisiana, where, on December 1, 2008, Dr. Karen Ross, a

board-certified forensic pathologist associated with the Forensic Center, performed

an autopsy on Mr. Lee. Her autopsy report, as well as her subsequent testimony,

established numerous conclusions concerning Mr. Lee’s physical condition at the

time of his death, but did not identify with any degree of certainty the specific

cause of death. Still, the underlying facts giving rise to this litigation are not at

issue.

Mr. Lee was a life-long resident of Concordia Parish with a history of drug

and alcohol abuse. The Concordia Parish Sheriff’s Office (Sheriff’s Office) was

well aware of his drug and alcohol abuse history, but still used Mr. Lee on

occasion as a confidential informant in criminal investigations. In fact, the

background activities leading up to his death on the evening of November 26, 2008,

began earlier that morning when Mr. Lee effected a meeting with his personal

contact at the Sheriff’s Office, Deputy David Kenneth Hedrick, Jr.

At approximately 11:00 a.m. on November 26, 2008, Mr. Lee appeared at

Deputy Hedrick’s office in the Concordia Parish Courthouse Annex, claiming to

have information concerning the location of generators which had recently been

stolen. The deputy accompanied Mr. Lee on a fruitless two-hour search around the

Ferriday, Louisiana area looking for an individual whom Mr. Lee identified as

being involved in the theft of the generators. During the search, Deputy Hedrick

drove Mr. Lee’s vehicle.1 Over that two-hour period, Deputy Hedrick observed

nothing out of the ordinary with Mr. Lee’s behavior other than when Mr. Lee

returned to the vehicle after one stop, he had an odor of alcohol on his breath.

Deputy Hedrick returned to his paperwork at the courthouse annex, but had

not seen the last of Mr. Lee on that day. At approximately 3:00 p.m., he observed

Mr. Lee approaching his office again and decided not to answer the knock on his

door. However, Mr. Lee refused to be ignored. He began to beat on the door and,

when Deputy Hedrick continued to ignore him, attempted to remove a screen from

a window. When Deputy Hedrick finally answered the door, Mr. Lee insisted that

he knew the location of the individual they had searched for that morning.

Mr. Lee and Deputy Hedrick again got into Mr. Lee’s vehicle, but this time

with Mr. Lee driving. However, instead of leaving the courthouse area, Mr. Lee

made a fast loop through the parking lot and stopped the vehicle in the back of the

courthouse. He then turned to Deputy Hedrick and informed him that “You’re

going to have to whip my ass before we go get these generators.” In response to

this aggressive behavior, and believing that Mr. Lee intended to fight him, Deputy

Hedrick exited the vehicle and walked to the driver’s side where Mr. Lee met him

and, after pushing him in the chest, struck him in the jaw. Deputy Hedrick then

1
Deputy Hedrick did not explain why he choose to be the driver, but the record does
establish that Mr. Lee had no driver’s license, having had it suspended for driving while
intoxicated offenses.
2

struck Mr. Lee in the head, causing him to fall to the ground. Mr. Lee’s

personality immediately changed from aggressive to passive, and he began

apologizing profusely for his behavior. Because of his long-time friendship with

Mr. Lee,2 Deputy Hedrick did not immediately arrest him for a violation of La.R.S.

14:34.2, battery on a police officer. Instead, he accepted the apology, reentered the

vehicle, and instructed Mr. Lee to drop him off at his office.

Once Deputy Hendrick reentered the truck, Mr. Lee’s aggressive behavior

resurfaced and he simply drove past the deputy’s office and started to exit the

parking lot. As he continued to drive, he insisted to Deputy Hedrick that they were

going to retrieve the stolen generators. When Mr. Lee allowed the vehicle to slow

down for a brief moment, Deputy Hedrick recognized that the situation was

quickly deteriorating and exited the vehicle. When the deputy began to walk

toward his office, Mr. Lee turned the vehicle around and began following him.

By this time, the events unfolding in the parking lot drew the attention of

other deputies who came to Deputy Hedrick’s assistance. Deputies Bobby

Sheppard, Eddie Poole, and Danny Merrill all testified to a cut on Mr. Lee’s

forehead and hand, and that Mr. Lee appeared to be intoxicated. The deputies did

not arrest Mr. Lee for a violation of La.R.S. 14:98, driving while intoxicated.

Instead, one of the supervisors instructed Deputy Merrill to drive Mr. Lee to his

home in the Shaw community (Shaw) of Concordia Parish.3

Deputy Merrill left the Sheriff’s office with Mr. Lee at approximately 4:00

p.m., and stayed with him for approximately one and one-half hours at his home,

2
Deputy Hedrick testified that he known Mr. Lee most of his life.
3
The Shaw community is in southern Concordia Parish. The various witnesses testified
to driving times from the courthouse to Mr. Lee’s home from twenty minutes to one hour, but the
general consensus was that the trip took about thirty minutes.
3

or until Deputy Mike Clark brought Mr. Lee’s vehicle to the Shaw community. 4

Because Deputy Clark was not sure where Mr. Lee’s home was located, the three

men met at a location familiar to Deputy Clark. There Deputy Merrill gave Mr.

Lee his keys and the two officers left him and his vehicle at that location.

Mr. Lee did not return home. Instead, he started traveling around the Shaw

community and became involved in minor altercations before arriving, in an

extremely intoxicated condition, 5 at the defendants’ hunting camp. Sixty-eight-

year-old Michael J. Rhodes, hereinafter referred to as “Mr. Rhodes” to distinguish

him from his son and codefendant, Courtney John Rhodes (“Mr. Courtney

Rhodes”), was in the front yard of the camp cooking dinner on a bar-b-que pit

when Mr. Lee drove his vehicle into the yard, cut a doughnut, and stopped within a

few feet of the him and the pit. Mr. Rhodes testified that initially Mr. Lee was

incoherent and screaming belligerently. Mr. Rhodes quickly came to understand,

however, that Mr. Lee’s profanity laced diatribe communicated his intent to burn

their camp. When he instructed Mr. Lee to leave, Mr. Lee began spinning the

vehicle in the yard.

By this time both Mr. Courtney Rhodes and James Code Vidrine (Mr.

Courtney Rhodes’ brother-in-law) had exited the camp building and joined Mr.

Rhodes in the front yard. None of the defendants knew Mr. Lee before this

incident, and their first introduction to him was when he began screaming that no

one could protect the three men, and he was going to kill them and burn the camp.

At this point, Mr. Courtney Rhodes dialed what was the first of a number of 911

4
The time periods testified to by the various officers in relation to the events in which
they were involved were rough estimates as none of the officers, including those who were
involved in the subsequent investigation of Mr. Lee’s death, took copious notes.
5
As a result of the autopsy performed by Dr. Ross, Mr. Lee’s blood alcohol
concentration content was set at 0.252 grams of alcohol per one cubic centimeters of blood.
4

calls for assistance. When he handed the cellular telephone to his father, the

operator answered immediately. Mr. Rhodes attempted to explain the situation and

then turned the telephone toward Mr. Lee who screamed his intentions into the

cellular telephone. The 911 operator responded to Mr. Rhodes that she had heard

Mr. Lee’s outbursts. As Mr. Rhodes attempted to give the operator some

information concerning Mr. Lee’s vehicle, Mr. Lee exited the vehicle and

continued to verbally assault the three men. Mr. Rhodes observed a wound on Mr.

Lee’s left forehead and blood on his hands. According to Mr. Rhodes, Mr. Lee’s

eyes had the look of a hysterical maniac.

Within seconds after exiting the vehicle, Mr. Lee stated that “the killing was

about to begin” and struck Mr. Courtney Rhodes in the right eye with his fist. He

then grabbed Mr. Courtney Rhodes by the throat, and the two men fell to the

ground with Mr. Lee on top. Mr. Rhodes and Mr. Vidrine came to Mr. Courtney

Rhodes’ assistance, and the two men were finally able to extricate Mr. Courtney

Rhodes from under Mr. Lee and pin Mr. Lee to the ground on his stomach.

The three men worked at holding Mr. Lee under control for approximately

twenty to twenty-five minutes during which time they continued to call 911 for

assistance. During this initial period, Mr. Lee struggled violently with the three

men and continued to curse and threaten them. In their efforts to keep Mr. Lee

pinned down, Mr. Courtney Rhodes kept pressure on his upper back, Mr. Rhodes

sat on his buttocks, and Mr. Vidrine sat on his feet to keep him from kicking Mr.

Rhodes. The three men found Mr. Lee to be exceptionally strong. In fact, Mr.

Rhodes suggested that he exhibited “superhuman strength,” and at times, Mr. Lee

would lift all three men from the ground in an effort to get up.

Initially, Mr. Rhodes, who suffered from a heart condition, degenerative

bone disease, and deteriorating nerves in both legs, held Mr. Lee’s left arm in an
5

effort to keep him from hitting his son and to maintain some degree of control over

their assailant. Mr. Rhodes suggested that the situation was no less than holding “a

tiger by the tail.” At some point, he found the strength in his left arm leaving him,

and in an effort to maintain the advantage he had holding the left arm, he found a

piece of rope, wrapped it around Mr. Lee’s left arm, and used this for leverage in

maintaining control.

After Mr. Lee began to tire, the three men were able to relax somewhat.

However, every few minutes Mr. Lee would regain his strength, and the altercation

would begin anew and would last until he would tire again. Finally, Mr. Lee

became so exhausted that Mr. Rhodes was able to hold him to the ground simply

by sitting on his buttocks. Mr. Courtney Rhodes remained close and would put

pressure on Mr. Lee’s back and shoulders when he seemed to regain his wind and

attempt to renew the conflict. This scenario continued during the next twenty to

twenty-five minutes before Deputy Dennis Cowan arrived in response to the

second or third of the many 911 calls made by the three men. Until moments

before Deputy Cowan arrived, Mr. Lee alternated between requesting to be

released, and cursing and threatening the three men who were holding him.

When Deputy Cowan arrived, he found Mr. Lee laying on his stomach in the

yard with Mr. Rhodes sitting on his buttocks and Mr. Courtney Rhodes kneeling

beside him. Apparently having had experience with Mr. Lee, Deputy Cowan

instructed Mr. Rhodes to remain sitting on Mr. Lee’s buttocks until he could place

leg restraints on him for control purposes. As he placed the leg restraints on Mr.

Lee, he noticed that Mr. Lee responded by moving his right leg a small distance.

However, after placing Mr. Lee in leg restraints and turning to place handcuffs on

his wrists, Deputy Cowan observed that Mr. Lee appeared to have stopped

breathing. Deputy Cowan called for an ambulance and performed CPR on Mr.
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Lee for approximately forty minutes until the ambulance arrived. Mr. Lee did not

respond and was pronounced dead sometime after being placed in the care of the

ambulance crew.

Dr. Ross performed the autopsy at the request of the Concordia Parish

Coroner, and summarized her findings in her written report as follows:

It is my opinion that Michael Lee, a 39 year old white male died as a
result of arteriosclerotic cardiovascular disease following a physical
struggle. It is my further opinion that chronic obstructive pulmonary
disease and chronic alcoholism may have contributed to his demise.
A component of positional asphyxia cannot be completely excluded;
however, he had evidence of severe heart disease including ischemic
necrosis. While blunt force injuries were noted including a thin linear
non-displaced fracture of the left orbital frontal plate of the skull and
slight subdural hemorrhage, there is no discernible mass affect or
brain injury produced from these injuries and investigative
information provides that the decedent remained conscience and
combative for some time after the injuries were likely sustained. The
manner of death is classified as undetermined.

Dr. Ross testified that Mr. Lee’s coronary artery atherosclerosis caused a seventy-

five percent narrowing of his blood vessels. Additionally, she found that his heart

was significantly enlarged. 6 According to Dr. Ross, hypertension caused the

enlarged condition of Mr. Lee’s heart, and the size made it electrically unstable.

She testified that his condition is a normal finding in one who is a heavy alcohol

drinker. The autopsy revealed that Mr. Lee’s blood alcohol concentration was

0.197 percent when tested in the blood and 0.252 percent when tested in the

vitreous fluid. According to Dr. Ross, the higher number was the more accurate

figure which placed Mr. Lee in excess of three times the legal limit for operating a

vehicle while intoxicated as set forth in La.R.S. 14:98(1)(b).

Dr. Ross concluded that none of Mr. Lee’s internal problems related to

trauma, and she strongly felt that the defendants’ actions did not contribute to his

6
According to Dr. Ross, a normal heart would weigh between 400 and 450 grams. Mr.
Lee’s heart weighed 540 grams.
7

death. She described a homicide as a situation when someone else causes a death,

whether intentional or unintentional. This event, according to Dr. Ross, was not a

homicide. In fact, she suggested that with his health difficulties, it would not have

been unusual for him to have died instantly while walking out of his house.

On November 24, 2009, Mr. Lee’s parents, Ernest and Irene Lee, brought

this wrongful death suit, naming Courtney John Rhodes, Michael Rhodes, and

James Vidrine as defendants. The matter was tried as a bench trial on November

14, 2011, and before the beginning of the evidentiary phase of the trial, the

plaintiffs stipulated that their individual damages did not exceed $50,000.00.

At the close of evidence, the trial court took the matter under advisement.

On March 12, 2012, the trial court executed a judgment awarding the plaintiffs

$125,000.00 in damages and finding the plaintiffs and defendants equally at fault

in causing Mr. Lee’s death. The trial court gave no reasons for its judgment.

The defendants timely perfected this appeal wherein they assert the

following assignments of error:

A. The trial court committed manifest error by assessing the
appellants with fifty percent (50%) fault.

B. The trial court manifestly erred in presumably finding the
appellants’ action caused Lee’s death.

C. The trial court committed manifest error by awarding more than
$100,000.00 in damages.

OPINON

This is a fact intensive case, and it is well settled that, pursuant to the

manifest error standard of review, a trial court’s findings of fact will not be set

aside in the absence of manifest error or unless they are clearly wrong. Rossell v.

ESCO, 549 So.2d 840 (La.1989); Stobart v. Dept. though DOTD, 617 So.2d 880

(La.1993). In order for a reviewing court to reverse a factfinder’s factual

8

determinations, the reviewing court must find that a reasonable factual basis does

not exist in the record for the finding and that the record establishes that the finding

is clearly wrong or manifestly erroneous. Stobart, 617 So.2d 880. In reversing the

trial court judgment and rendering judgment in favor of the defendants dismissing

the plaintiffs’ claims against them, we need only consider the second assignment of

error to find no rational basis of fact in the record to support the trial court’s

judgment.

Louisiana Civil Code Article 2315(A) provides that “[e]very act whatever of

man that causes damage to another obliges him by whose fault it happened to

repair it.” In their petition, the plaintiffs did not suggest that the defendants

intentionally injured Mr. Lee, or that he was not the aggressor in the physical

altercation of November 26, 2008. Instead, they asserted that the defendants used

“excessive physical force to restrain Mr. Lee and hold him till[sic] law

enforcement arrived to remove Mr. Lee from the property.” Thus, in this matter,

the alleged fault on the part of the defendants is in the form of negligence.

Under Louisiana jurisprudence, most negligence cases are resolved by
employing a duty/risk analysis, which entails five separate elements:
(1) whether the defendant had a duty to conform his conduct to a
specific standard (the duty element); (2) whether the defendant’s
conduct failed to conform to the appropriate standard (the breach
element; (3) whether the defendant’s substandard conduct was a
cause-in-fact of the plaintiff’s injuries (the cause-in-fact element); (4)
whether the defendant’s substandard conduct was a legal cause of the
plaintiff’s injuries (the scope of liability or scope of protection
element); and (5) whether the plaintiff was damaged (the damages
element).

Hanks v. Entergy Corp., 06-477, pp. 20-21, (La. 12/18/06), 944 So.2d 564, 579.

A plaintiff’s failure to establish any of these elements by a preponderance of the

evidence will preclude his or her right of recovery.

As stated in Lemann v. Essen Lane Daiquiris, Inc., 05-1095, p. 8 (La.

3/10/06), 923 So.2d 627, 633, “[a] threshold issue in any negligence action is
9

whether the defendant owed the plaintiff a duty.” Additionally, “[w]hether a duty

is owed is a question of law.” Id. In the matter now before us, Mr. Lee was clearly

the aggressor, and the defendants were entitled to defend themselves. To that end,

and in the criminal context, La.R.S. 14:19(A) provides in pertinent part that:

The use of force or violence upon the person of another is
justifiable when committed for the purpose of preventing a forcible
offense against the person or a forcible offense or trespass against
property in a person’s lawful possession, provided that the force or
violence used must be reasonable and apparently necessary to prevent
such offense, and that this Section shall not apply where the force or
violence results in a homicide.

Thus, in defending themselves from Mr. Lee’s unprovoked attack, the plaintiffs

had a duty to use only force that was reasonable and apparently necessary to

prevent the offense. That being the case, the first element of the duty/risk analysis

is satisfied in this matter.7

Turning to the second element of the duty/risk analysis, we do not find that

the defendants breached the duty imposed on them in defending themselves from

Mr. Lee’s unprovoked attack. In fact, the evidence is overwhelming in favor of the

defendants on this point. They were confronted with an obviously extremely

intoxicated stranger whose only communication with them was a threat of death to

them and danger to their property. When asked to leave their property, he not only

refused to do so, but escalated the confrontation by exiting his vehicle and

committing a battery on Mr. Courtney Rhodes. The defendants used only the force

necessary to maintain control of Mr. Lee until law enforcement officials arrived.

Both Deputy Cowan and Deputy Sheppard, who arrived later to investigate the

incident, testified that the defendants did nothing wrong in attempting to keep Mr.

7
The fact that Mr. Lee died in the altercation does not preclude the application of La.R.S.
14:19(A) because, as previously noted, Dr. Ross concluded that his death was not a homicide.
10

Lee under control. They both concluded that the defendants did the best they could

in defending themselves, given the circumstances.

Having found that the plaintiffs failed to establish by a preponderance of the

evidence that the defendants breached any duty they owed to Mr. Lee arising from

the confrontation, we will not address the remaining elements of the duty/risk

analysis. Additionally, we need not consider the remaining assignments of error

asserted by the defendants.

DISPOSITION

We reverse the trial court judgment rendered in favor of Ernest Lee and

Irene Lee, and against Courtney John Rhodes, Michael Rhodes, and James Vidrine.

We render judgment in favor of Courtney John Rhodes, Michael Rhodes, and

James Vidrine, and against Ernest Lee and Irene Lee, dismissing their suit. We

assess all costs of the trial and appeal to Ernest Lee and Irene Lee.

REVERSED AND RENDERED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2—16.3.

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