Chastity Ardoin v. Mitchell Bourgeois

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

04-1663

CHASTITY ARDOIN

VERSUS

MITCHELL BOURGEOIS

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APPEAL FROM THE THIRTY-EIGHTH JUDICIAL DISTRICT COURT, PARISH OF CAMERON, NO. 10-16088, HONORABLE H. WARD FONTENOT, DISTRICT JUDGE

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MICHAEL G. SULLIVAN JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Michael G. Sullivan, and Elizabeth A. Pickett, Judges.

AFFIRMED AS AMENDED.

Jack W. Caskey Attorney at Law Post Office Box 1052 Lake Charles, Louisiana 70602 (337) 439-8854 Counsel for Plaintiff/Appellee: Chastity Ardoin Gabrielle Nicole Richard Raven Brooks Bourgeois

Lee H. des Bordes, Jr. Attorney at Law 7732 Goodwood Blvd., Suite A Baton Rouge, Louisiana 70806 (225) 248-8500 Counsel for Defendant/Appellant: Mitchell Bourgeois Mitchell Bourgeois W. Baton Rouge Work Release 1155 Northwest Drive Port Allen, Louisiana 70767 Defendant/Appellant: Mitchell Bourgeois SULLIVAN, Judge.

Mitchell Bourgeois appeals the trial court’s denial of his motion to continue the

trial of this matter and its awards of $325,000.00 in general damages and $12,631.31

in past and future medical expenses in favor of Chastity Ardoin. For the following

reasons, we amend and affirm as amended.

Facts

Mitchell Bourgeois lived with Chastity Ardoin for approximately ten years.

They have one child. Their relationship was stormy and sometimes violent. Over the

course of three days in early May 2001, Mr. Bourgeois severely physically abused

and mentally terrorized Ms. Ardoin. He was arrested and charged with aggravated

battery; he pled guilty to the charge and was sentenced to five years in prison.

On May 2, 2002, Ms. Ardoin filed a civil suit against Mr. Bourgeois; he

answered the petition in August 2002. There was no further action in the matter until

July 24, 2003 when Ms. Ardoin’s attorney withdrew as counsel of record.

Mr. Bourgeois’ attorney did the same on November 14, 2003. In March 2004,

Ms. Ardoin filed a motion to proceed in forma pauperis and a motion to withdraw her

demand for trial by jury. The matter was set for trial on August 2, 2004. On

Wednesday, July 29, 2004, Mr. Bourgeois filed a motion to proceed in forma

pauperis and a motion to continue the trial. Prior to the start of the trial on August

2, the trial court denied the motion for continuance and proceeded with the trial. At

the conclusion of the trial, the trial court rendered judgment in favor of Ms. Ardoin

awarding her $100,000.00 for assault, including kidnaping, binding, beating, cutting

and burning; $200,000.00 for scarring and disability and all damages associated

therewith; $25,000.00 for mental pain, anguish, grief, and fear; and $12,631.31 for

past and future medicals. The trial court signed a judgment on August 4, 2004. On August 16, 2004, Mr. Bourgeois filed a notice of intent to seek writs and

another motion to proceed in forma pauperis. He filed a motion for appeal on

November 15, 2004, and a notice of appeal on November 22, 2004.1 He assigns two

errors: the trial court’s denial of his motion for continuance and the damage awards.

Discussion

Motion for Continuance

Mr. Bourgeois acknowledged in his motion for continuance that he received

notice of the trial date on May 15, 2004. He listed his incarceration and his inability

to afford an attorney as grounds for the continuance. On appeal, he urges that the trial

court abused its discretion when it denied his request for a continuance because he

was not allowed “a fair opportunity to defend himself or at least prove if Ms. Ardoin’s

damage claims should be reduced by her comparative fault” and identifies four

reasons why a continuance should have been granted: 1) no discovery had been

taken; 2) Ms. Ardoin had withdrawn her request for a jury trial, and he was not

knowledgeable enough to know he could request a jury; 3) the trial judge had also

presided over Mr. Bourgeois’ criminal proceeding and knew Ms. Ardoin’s version

of the events which are the basis of this suit, so he was denied a trial before a “fair

and impartial tribunal”; and 4) the trial court’s denial of the continuance denied Mr.

Bourgeois a chance to prove that Ms. Ardoin contributed to her own injuries.

“[A] continuance may be granted in any case if there is good ground therefor.”

La.Code Civ.P. art. 1601. The trial court has great discretion in granting or denying

a motion for a continuance, and denial of a continuance will not be disturbed on

1 No notice of judgment was issued by the clerk of court. Therefore, the delays for appeal never began to run, and Mr. Bourgeois’ appeal is timely. La.Code Civ.P. arts. 1913(A), 1974, 2087, and 2123. See also Bell v. Demax Mgmt., Inc., 02-618 (La. 5/24/02), 819 So.2d 293; Broussard v. Annaloro, 265 So.2d 648 (La.App. 3 Cir. 1972).

2 appeal unless the trial court is shown to have abused its discretion. Jackson v. Royal

Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424. Whether a trial court

should grant or deny a continuance depends on the particular facts of each case.

Some factors to consider are diligence, good faith, and reasonable grounds.

Demopulos v. Jackson, 33,560 (La.App. 2 Cir. 6/21/00), 765 So.2d 480. Fairness to

both parties and the need for orderly administration of justice are additional

considerations in deciding whether to grant or deny a continuance. Gilcrease v.

Bacarisse, 26,318 (La.App. 2 Cir. 12/7/94), 647 So.2d 1219, writ denied, 95-421 (La.

3/30/95), 651 So.2d 845.

We recognize that Mr. Bourgeois’ incarceration presented a problem with

respect to his defense of this matter. However, he was not diligent in seeking relief.

He waited more than sixty days after he received notice of the trial date to file his

motion for continuance and then filed it only three business days before the trial.

It is not unusual for individuals who are incarcerated to be parties to civil

litigation, either as plaintiff or defendant. A writ of habeas corpus ad testificandum

is the means for such individuals to be present in court. See State v. Property Located

at No. 70 Oakland Street, 98-929 (La.App. 5 Cir. 1/26/99), 727 So.2d 1240, writ

denied, 99-1095 (La. 9/3/99), 747 So.2d 540. Prisoners who are parties to litigation

utilize this mechanism to obtain their presence and the presence of witnesses who are

also incarcerated in court. See Smith v. Ieyoub, 01-1517 (La.App. 3 Cir. 3/6/02), 809

So.2d 1256; Jones v. Phelps, 95-607 (La.App. 1 Cir. 11/9/95), 665 So.2d 30, writ

denied, 95-2907 (La. 2/2/96), 666 So.2d 1104; Richardson v. Reeves, 600 So.2d 138

(La.App. 2 Cir. 1992). Mr. Bourgeois had time to obtain this information and file

such a writ before the trial date. Additionally, Mr. Bourgeois did not set forth in his

3 motion for continuance that he attempted to obtain new representation after his

attorney of record withdrew.

Mr. Bourgeois also cited the trial court’s failure to appoint an attorney to

represent him as a basis for a continuance. As a general rule, defendants in civil

litigation are not entitled to appointed counsel to represent them. Lay v. McElven,

96-1325 (La.App. 1 Cir. 3/27/97), 691 So.2d 311, writ denied, 97-2398 (La. 2/6/98),

709 So.2d 730. However, it has been held that constitutional due process requires the

appointment of counsel to indigents in civil matters when fundamental constitutional

rights are involved. Id. The court in Lay determined that an incarcerated, indigent

plaintiff’s suit to recover damages for a violation of his civil rights was not a

fundamental constitutional right which would entitle him to appointed counsel. In

Ford Motor Credit Co. v. George, 36,893 (La.App. 2 Cir. 3/5/03), 839 So.2d 1042,

the court determined that a suit on a retail installment contract does not involve issues

of fundamental constitutional rights and that an indigent defendant in such a suit is

not entitled to appointed counsel.

We conclude that Mr. Bourgeois was not entitled to appointed counsel in this

matter; therefore, his claim to entitlement of appointed counsel was not a valid

ground for a continuance.

In his appellate brief, Mr. Bourgeois contends the trial court’s denial of the

motion for continuance was an abuse of discretion for reasons other than those set

forth in his motion for continuance. “A motion for a continuance shall set forth the

grounds upon which it is based . . . .” La.Code Civ.P. art. 1603. Pursuant to Article

1603, the grounds for continuance asserted on appeal but not set forth in the motion

for continuance could not serve as a basis for a continuance in the trial court. Nor can

4 it serve as basis for a determination on appeal that the trial court abused its discretion

in denying the continuance because the trial court had no knowledge of these

grounds.

The trial court did not abuse its discretion in denying Mr. Bourgeois’ request

for a continuance. This assignment is without merit.

Excessive Damages

In his second assignment of error, Mr. Bourgeois argues that the trial court’s

damage awards were excessive and not supported by admissible evidence or by

Ms. Ardoin’s injuries. He first complains that a report prepared by a plastic surgeon

was inadmissible hearsay. An evidentiary issue is not preserved for appellate review,

unless a contemporaneous objection to the evidence was entered. La.Code Evid. art.

103; see also, Ewing v. State ex rel. Dep’t of Transp. and Dev., 99-1556 (La.App. 3

Cir. 3/15/00), 757 So.2d 843. There was no contemporaneous objection to this

report; therefore, this alleged error was not preserved for appeal.

Mr. Bourgeois next argues that the trial court’s award of past and future

medical expenses was error because the awarded expenses were simply itemized on

a list and not documented by a certified medical record, pursuant to La.R.S. 13:3715,

or an affidavit, pursuant to La.R.S. 13:3714. To recover past medical expenses a

“plaintiff must prove that, more probable than not, the medical treatment was

necessitated by trauma suffered in the accident.” Esté v. State Farm Ins. Cos., 96-99,

p. 10 (La.App. 3 Cir. 7/10/96), 676 So.2d 850, 857. A plaintiff’s claim for past

medical expenses is sufficient when supported by a bill, unless there is contradictory

evidence or reasonable suspicion that the bill is unrelated to the accident. Id.

5 In support of her claim for past medical expenses, Ms. Ardoin introduced an

itemized list of expenses prepared by William Daigle, the Victims Assistance

Coordination for the Cameron Parish District Attorney’s office, and she testified that

the amounts itemized on the list represent treatment she received as a result of the

injuries inflicted by Mr. Bourgeois. Ms. Ardoin did not introduce copies of all of the

invoices representing the charges incurred for her past medical treatment. However,

certified copies of records of her healthcare providers were introduced into evidence

and an invoice in the amount of $177.89 is included in the records of The Clinic.

Additionally, the report of Dr. Darrell Henderson, a plastic surgeon that Ms. Ardoin

consulted, sets forth a charge of $300.00 for his examination of Ms. Ardoin.

It was error for the trial court to award past medical expenses which are not

documented by a statement, copies of invoices, or a statement of the health care

provider; therefore, we amend the trial court’s award for past medical expenses and

award $477.89.

A plaintiff must establish that it is more probable than not that future medical

expenses are indicated, their probable costs, and that they will be incurred. Roberts

v. State, 00-778 (La.App. 3 Cir. 11/2/00), 776 So.2d 519, writs denied, 00-3307, 00-

3324 (La. 2/2/01), 784 So.2d 8, 644. Ms. Ardoin was examined by Dr. Darrell

Henderson, a plastic surgeon, to determine whether the scar on her buttock could be

removed or reduced. Dr. Henderson outlined in his written report two different

procedures and the expenses associated with each that he could perform to reduce the

scar. He stated that the purpose of the surgery was to reduce the size of the scar on

Ms. Ardoin’s buttock, explaining that it cannot be completely removed. Ms. Ardoin

testified that she is affected by the sight of the scar and wants it removed.

6 Dr. Henderson outlined costs for two procedures; he recommended that Ms. Ardoin

undergo the second procedure because it would result in a greater reduction of the

scar or not have surgery at all. The trial court awarded $7,740.00, Dr. Henderson’s

estimate of the cost of the second procedure, as past medical expenses. The trial

court awarded $2,000.00 for future medical expenses. We amend this award to reflect

the expenses associated with Dr. Henderson’s recommended procedure, $7,740.00.

General Damages

Mr. Bourgeois objects to the trial court’s award of $325,000.00 in general

damages, arguing that they are excessive. A trial court’s assessment of damages is

a determination of fact that is entitled to great deference on review. Wainwright v.

Fontenot, 00-492 (La. 10/17/00), 774 So.2d 70. When reviewing an award of general

damages, “a court of appeal is required to focus on the total award and not on each

individual item.” Richard v. Teague, 92-17 (La.App. 3 Cir. 5/4/94), 636 So.2d 1160,

1174, writ denied, 94-1934 (La. 11/11/94), 644 So.2d 388. Our review of the record

satisfies us that the trial court’s award of general damages in the amount of

$325,000.00 for Mr. Bourgeois’s assault on Ms. Ardoin is reasonable.

Ms. Ardoin testified in detail about her ordeal. In early May 2001, she and

Mr. Bourgeois traveled from Denham Springs, where they lived together, to Moss

Bluff for a motorcycle racing event. They sold t-shirts and other products at the

event. At approximately 4:00 a.m. on May 6, 2001, Ms. Ardoin revealed to

Mr. Bourgeois that she had had a sexual encounter with another man. In response,

Mr. Bourgeois punched her and ripped her clothes off. At daylight, they left Moss

Bluff and traveled to Cameron Parish, where Mr. Bourgeois’ abuse got worse

according to Ms. Ardoin. He threatened to remove a tattoo she had on her buttock

7 and threatened her life. Mr. Bourgeois attacked Ms. Ardoin again on May 7. On

May 8, Mr. Bourgeois taped her up with duct tape; he taped her mouth first to keep

her from screaming, then her wrists and legs to keep her from fighting and resisting

him. He cut her clothes off of her and began cutting her buttock, telling her he was

cutting her tattoo off. She described his next actions:

He left the room after he was through cutting me, and he came back in. And I was struggling to get out of this tape. And he came back. Once he came in, I was wrestling as much as I could to try to get away from him, and he pinned me down and had me bent over. I didn’t see the spatula, but I felt it.

Mr. Bourgeois had applied a hot metal spatula to the area on her buttock he had cut.

Ms. Ardoin testified that during this attack Mr. Bourgeois was in a rage, that she

feared for her life, and that she believed him when he told her that he was going to

feed her to the alligators. She described her pain during the cutting and burning as

excruciating. She fought Mr. Bourgeois and screamed during the attack. Then, it all

stopped. Mr. Bourgeois left the room, then returned and bandaged her wound, cut the

duct tape, and left her. After he left, she dressed and ran to some apartments to use

a telephone where she called her father and the police. Ms. Ardoin testified that over

the course of these three days, Mr. Bourgeois also beat her, hit her over the head, and

kicked her.

The police brought Ms. Ardoin to the police station where an ambulance

picked her up and transported her to South Cameron Hospital where she was treated

for her injuries. She also sought treatment at Women and Children’s Hospital, Lake

Charles Memorial Hospital, and Moss Regional Hospital in Lake Charles. She

testified that the treatment for the burn was very painful and expressed that she would

8 not want anyone to experience such pain. She further testified that there are

occasions when the scar still hurts.

Ms. Ardoin saw two plastic surgeons. The first was for treatment of the burn

and an opinion on removal of the scar. When this doctor told her he had done all that

he could do and recommended no further treatment, Ms. Ardoin sought a second

opinion from Dr. Henderson because she wanted to have the scar removed.

In his report, Dr. Henderson described the scar as twelve and one-half

centimeters by eight centimeters with two areas of thick hypertrophic scar tissue

measuring two and one-half centimeters by two centimeters. He explained that he

would surgically excise the very large scar and the smaller areas of hypertrophic scar;

it will involve a large excision of tissue. The adjacent skin would be expanded with

intraoperative skin expanders to stretch the adjacent skin to close over the area of the

excised scar. The result would be a linear scar in excess of twelve and one-half

centimeters. Ms. Ardoin would be under general anesthesia and hospitalized

overnight; she would be released with a bandaged wound. Due to the location of the

wound, the pressure and tension of sitting might break open the wound,

Dr. Henderson stated that Ms. Ardoin would have to keep her hip straight for several

weeks and would be limited to lying or standing most of the time. He projected that

she would not be able to work for four to six weeks following the surgery. He

expects the new scar to improve gradually over a period of one to one and one-half

years. Finally, Dr. Henderson observed that, in his experience, patients like

Ms. Ardoin who undergo this type of surgery would rather have a surgical scar than

the original scar which evokes unpleasant memories of what caused the scar.

9 In Youn v. Maritime Overseas Corp., 623 So.2d 1257, 1261 (La.1993), the

supreme court instructed that an appellate court should rarely disturb a general

damage award:

[T]he discretion vested in the trier of fact is “great,” and even vast, so that an appellate court should rarely disturb an award of general damages. Reasonable persons frequently disagree about the measure of general damages in a particular case. It is only when the award is, in either direction, beyond that which a reasonable trier of fact could assess for the effects of the particular injury to the particular plaintiff under the particular circumstances that the appellate court should increase or reduce the award.

We cannot say that the trial court’s general damage award is greater than what

a reasonable trier of fact could assess to a plaintiff who suffered the physical and

mental abuse Ms. Abshire suffered at the hands of Mr. Bourgeois.

Disposition

The judgment of the trial court is amended to award past medical expenses in

the amount of $477.89 and future medical expenses in the amount of $7,740.00 and

affirmed as amended. Costs of this appeal are assessed to Mitchell Bourgeois.

AFFIRMED AS AMENDED.