Dorvilier v. Gagliano

855 So. 2d 393, 2003 WL 22093876
CourtLouisiana Court of Appeal
DecidedAugust 27, 2003
Docket2002-CA-2765
StatusPublished
Cited by4 cases

This text of 855 So. 2d 393 (Dorvilier v. Gagliano) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dorvilier v. Gagliano, 855 So. 2d 393, 2003 WL 22093876 (La. Ct. App. 2003).

Opinion

855 So.2d 393 (2003)

Lucien DORVILIER
v.
Peter GAGLIANO, et al.

No. 2002-CA-2765.

Court of Appeal of Louisiana, Fourth Circuit.

August 27, 2003.

*395 Stephen C. Hartel, Jr., Hartel & Kenny, PLC, Metairie, LA, for Plaintiff/Appellee.

John J. Lee, Jr., New Orleans, LA, for Defendant/Appellant, Leon Casadaban.

Mark J. Shea, Shea Law Offices, New Orleans, LA, for Defendant/Appellant, Peter Gagliano.

(Court composed of Chief Judge WILLIAM H. BYRNES III, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD).

TERRI F. LOVE, Judge.

This case arises out of a fistic encounter wherein the trial court held the defendants, Peter Gagliano ("Gagliano") and Leon Casadaban ("Casadaban") equally at fault for Lucien Dorvilier's ("Dorvilier") injuries. The trial court also awarded Dorvilier $29,244.00 in general damages together with costs and interest in addition to entering judgment in favor of the intervenor, Charity Hospital, in the amount of $4,062.78 together with the costs and interest. Each defendant was ordered to bear his share of the costs. Gagliano appeals the trial court's judgment and we affirm for the following reasons:

FACTS AND PROCEDURAL HISTORY

On January 25, 1997, Super Bowl weekend, the defendants, Gagliano and Casadaban hailed a taxicab driven by Dorvilier. Gagliano and Casadaban agreed with Dorvilier that a flat fee would be paid to deliver them from the French Quarter to Metairie. While en route to Metairie, Dorvilier attempted to raise the cab fare from twenty-five dollars to thirty dollars. Gagliano and Casadaban began arguing with Dorvilier about the increased cost of the trip. From this point, the parties tell two different versions of events. Dorvilier testified that Gagliano and Casadaban were intoxicated when he picked them up at St. Peter and Dauphine in the French Quarter. Further, Dorvilier testified that the argument started when he asked Gagliano to stop smoking in the taxi and Gagliano refused to do so. Dorvilier also claimed that Gagliano hit the back of the driver's seat and used racial epithets in response to his request that Gagliano stop smoking in the taxi.

Dorvilier stated that he turned the taxi around and headed back towards New Orleans. Dorvilier stopped at the intersection of Johnson and Canal, and Gagliano and Casadaban exited the taxicab. Dorvilier claims that Casadaban dragged him out of the vehicle and beat him, which caused him to lose two teeth. Dorvilier testified that both Gagliano and Casadaban hit him. Dorvilier also denied that he had a weapon in his taxi at the time of the incident. Dorvilier testified that once he brought Gagliano and Casadaban back to the French Quarter, he told them they did not have to pay and asked them to exit the vehicle. Gagliano denied using racial epithets and hitting the back of the driver's seat. He also testified that once he and Casadaban exited the taxi, Dorvilier also exited the taxi, and began a verbal argument with the two patrons. Gagliano further testified that Dorvilier was the aggressor. According to Gagliano, Dorvilier hit Casadaban in the face and knocked him down. Casadaban defended himself by hitting Dorvilier. Then, Dorvilier attempted to re-enter the taxi and reach for something under the seat. At this point, Gagliano testified that both he and Casadaban felt Dorvilier was going to retrieve a weapon from the taxi. Therefore, Gagliano and Casadaban began to yell for someone to call the police, and they held Dorvilier at bay until the police arrived. After the altercation between Dorvilier and Casadaban, Dorvilier sought medical treatment at the Medical Center of Louisiana at New *396 Orleans. Jerry McClain ("McClain") witnessed the altercation and he testified that he did not see Dorvilier hit either Gagliano or Casadaban. McClain testified that he saw both of the defendants pull Dorvilier out of the taxi and begin to attack him. McClain also testified that he smelled alcohol emanating from each of the defendant's breath. Dr. Michael Rouhana testified regarding Dorvilier's injuries and the resulting medical bills for treatment of the dental injuries, which stemmed from the loss of two teeth.

At trial, the court found that despite inconsistent testimony from the parties and the witnesses "it is uncontradicted that a physical battery ensued and that the plaintiff sustained injuries as a result." In accordance with this finding, the trial court entered judgment in favor of Dorvilier and against Gagliano and Casadaban in the amount of $29,244.00 together with cost and interest with each defendant to bear his share of the costs. The court also entered a judgment in favor of Charity Hospital and Medical Center of Louisiana at New Orleans and against Gagliano and Casadaban in the amount of $4,062.78 together with cost and interest.

ASSIGNMENT OF ERROR ONE

In Gagliano's first assignment of error, he argues the trial court erred in finding liable and assessing fault to him for Dorvilier's injuries.

A court of appeal may not overturn a judgment of a trial court absent an error of law or a factual finding that is manifestly erroneous or clearly wrong. Stobart v. State, 617 So.2d 880 (La.1993). If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Furthermore, when factual findings are based on the credibility of witnesses, the fact finder's decision to credit a witness's testimony must be given "great deference" by the appellate court. Rosell v. ESCO, 549 So.2d 840 (La.1989). Thus, when there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review although the appellate court may feel that its own evaluations and inferences are as reasonable. La. C.C. art. 2315 states that "Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it."

Gagliano argues that the trial judge failed to ascertain whether Gagliano and/or Casadaban were responsible for the injuries sustained by Dorvilier. The trial judge stated in her written reasons for judgment, in pertinent part:

While the testimony varies from witness to witness as to what perpetuated the incidents made the subject of this lawsuit, it is un contradicted that a physical battery ensued and that the plaintiff sustained injuries as a result. This Court also finds that the defendants became angry, exited the vehicle and upon exiting the vehicle became engaged in a fight. For above reasons this Court finds that the defendants, Peter Gagliano and Leon Casadaban, committed a battery against plaintiff, Lucien Dorvilier, and is liable for the damages sustained by plaintiff resulting from said battery.

The record reflects the first officer on the scene, Eduardo Colmenero, an eyewitness, McClain, and Lucien Dorvilier provided testimony to support the trial court's finding both defendants liable and at fault for the damages Dorvilier sustained as a result of a fistic encounter.

*397 TESTIMONY OF OFFICER EDUARDO COLMENERO

Officer Colmenero testified that he was dispatched to the scene of the incident at approximately 4:30 in the morning. The officer testified as follows:

Q. In the interest of brevity, I'd like First off, I'd like to ask you who were the parties involved in the incident?
A. According to the report, Leon Casadaban, Peter Gagliano, and Lucien Dorvilier.
Q.

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Cite This Page — Counsel Stack

Bluebook (online)
855 So. 2d 393, 2003 WL 22093876, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dorvilier-v-gagliano-lactapp-2003.