NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
16-87
STEPHANIE BROOKE LEBLANC
VERSUS
TERRY LYNN COOLEY
**********
APPEAL FROM THE THIRTY-SIXTH JUDICIAL DISTRICT COURT PARISH OF BEAUREGARD, NO. C-2011-0955 HONORABLE H. WARD FONTENOT, AD HOC JUDGE
BILLY HOWARD EZELL JUDGE
Court composed of John D. Saunders, Billy Howard Ezell, and James T. Genovese, Judges.
AFFIRMED. Randall Earl Hart Broussard & Hart, LLC 1301 Common St. Lake Charles, LA 70601 (337) 439-2450 COUNSEL FOR PLAINTIFFS/APPELLEES: Stephanie Brooke LeBlanc Melissa LeBlanc Kimberly LeBlanc
E. Grey Burnes Talley Burnes, Burnes & Talley P. O. Box 650 Alexandria, La 71309-0650 (318) 442-5231 COUNSEL FOR DEFENDANT/APPELLANT: Terry Lynn Cooley
1 EZELL, Judge.
Sisters, Melissa, Stephanie, and Kimberly LeBlanc, filed suit against their
stepfather, Terry Lynn Cooley, for damages they claimed they sustained as a result
of sexual abuse committed upon them by their stepfather. After a trial on the
issues of injury and causation, the trial judge concluded that the girls were each
entitled to $50,000 in compensatory damages. Terry then filed the present appeal.
FACTS
The girls’ parents, Joey LeBlanc and Donna Cooley, were divorced when the
girls were very young. Donna then married Terry. Initially, the girls lived with
their father in Lake Charles, but eventually went to live with Donna and Terry in
DeRidder. When the girls moved in, Terry began tickling the girls as a form of
innocent horse play.
However, around the time Melissa turned ten, Terry began using tickling as
an opportunity to touch her breasts. The tickling was almost a daily occurrence.
He would also come in her bedroom at night to tickle her. Melissa testified that he
would also grab her training bra and snap it. Terry also commented on her breasts.
When Terry would tickle Melissa on her knees, he would leave his hand there.
Sometimes he would place his hand in the junction between her pelvic area and
thigh. One time Terry asked Melissa to do a back bend, using the opportunity to
run his finger between her legs.
Melissa testified that she told her mother that she did not like what Terry
was doing, and her mother told her she was overreacting. Donna denied that
Melissa ever said anything to her.
One day Melissa began crying at school and explained to a friend her
situation at home. At this point, it appears that the Office of Community Services (OCS) got involved and met Donna at school that afternoon. After this, Melissa
went to live with her father. The OCS informed Terry that he should stop tickling
the girls, which he did for a while.
However, Terry’s attentions soon turned toward Stephanie. She was also
about ten years old when the tickling became sexual. Stephanie testified that
tickling went from playful and innocent to knowingly inappropriate. He would
touch her on her breasts and sometimes got close to the vaginal area. This
occurred almost daily and sometimes at night. This went on for about five years.
At one point, Terry tried to get Stephanie to watch an inappropriate movie
with him which started with a topless cheerleader. She left the room, but he
followed her and told her there was nothing wrong with the movie. One time
Terry even talked to Stephanie about sex and told her it was ok to have sex but
only if she told him about it. Terry even told her she could stick small shampoo
bottles in her vagina. It was not until years later that Stephanie realized he was
talking about masturbation. He also told her that he could see her in the bathroom
through a crack in the door. Stephanie testified that she caught him taking pictures
of her under the bathroom door. She eventually started dressing in the shower.
Stephanie’s sister, Kimberly, saw a picture Terry took of Stephanie’s legs.
Another time Stephanie wanted to go roller skating. Terry told her that she
would have to bend over and let him spank her first. When she complied, he stuck
his finger in her buttocks. He then took her skating and watched her skate.
Another incident occurred when Stephanie rode on the wheel fender of the tractor
Terry was driving when they went to feed hay to the animals. He would reach
back and touch her thigh. He got mad at her because she kept pushing his hand
away. After this, he would not let her go spend the night at a friend’s house.
2 Stephanie testified that Terry would usually walk around in his underwear.
Donna agreed that Terry wore his underwear around the house. Sometimes his
jeans would be unbuttoned and unzipped. One time he urinated in the backyard in
front of Stephanie. The final straw for Stephanie came the night she was cleaning
the kitchen. When she turned around, Terry had pulled his penis out of his pants.
He walked up behind her, slapped her on the behind, and told her not to say
anything. She went to the bathroom, and he followed her and did it again.
The next day at school, Stephanie told her friend about the incident. The
friend told her mother what Stephanie told her. The friend’s mother then went to
Donna’s office. Donna denied it happened, so the friend’s mother told school
officials who involved OCS again. Stephanie then stayed with her friend and
family for a week before going to live with her dad.
Kimberly testified that Terry interacted more with Stephanie than her. She
saw Terry touching Stephanie’s breasts but did not know it was inappropriate.
Once Stephanie left, Terry began inappropriately touching Kimberly’s breasts,
which went on for about a year.
After Stephanie went to live with Joey, he hired an attorney to get custody of
Kimberly. Eventually, the Cooleys gave in and let Kimberly go live with her
father. After Kimberly left the home, Terry made a vow to Donna that he was not
going to tickle anymore. Eventually, Terry told Donna that he tickled some
neighborhood kids. A month later, Terry was arrested.
Criminal charges were brought against Terry, and a jury convicted him of: (1)
aggravated incest for lewdly fondling his juvenile stepdaughter, Melissa; (2)
aggravated incest for exposing his genitals and lewdly fondling his minor
stepdaughter, Stephanie; (3) aggravated incest for lewdly fondling his juvenile
3 stepdaughter, Kimberly; and (4) sexual battery for touching the genitals of the
adolescent neighbor without her consent. The trial court sentenced Terry to five
years at hard labor for each aggravated incest conviction, to run concurrently; two
years at hard labor for the sexual battery; and seven years at hard labor for the
molestation, to run concurrently with each other, but consecutively to the
aggravated incest sentences. This court affirmed Terry’s convictions and sentences.
State v. Cooley, 11-959 (La.App. 3 Cir. 4/4/12), 87 So.3d 285, writ denied, 12-
1008 (La. 10/26/12), 99 So.3d 640.
In 2011, Stephanie filed a petition for damages against Terry as a result of
the sexual abuse. She acknowledged that her damages were not sufficient to
warrant a jury trial. Her sisters, Melissa and Kimberly, joined her in the suit in
2013. In 2014, the girls filed a motion for summary judgment on the issue of
liability. The trial court granted summary judgment as to duty and breach but held
that the girls would still have to prove injury, causation, and damages at trial.
Trial on these issues was held November 24-26, 2014. After hearing the
testimony and reviewing the evidence, the trial court in written reasons found that
the girls had established that Terry’s sexual abuse in the form of unwanted
touching and verbal aggression caused them damages in the form of mental
anguish, humiliation, and embarrassment. The trial court also found that the girls
had residual emotional and psychological injury. The court concluded that the
value of each girl’s claim exceeded the jurisdictional amount of $50,000, so it
awarded each girl $50,000. La.Code Civ.P. art. 1732(1)(a). With this award, the
trial court did not address punitive damages allowable under La.Civ.Code art.
2315.7, finding that issue to be moot. Terry then filed the present appeal, asserting
several assignments of error.
4 MELISSA’S TESTIMONY
Terry’s first two assignments of error relate to Melissa’s testimony. Terry
argues that Melissa’s testimony was impeached, and, due to the conflict in her
testimony, her claims should be denied. Terry specifically claims that the trial
court erred in finding that he engaged in several acts of playfully touching and
squeezing her breasts when she later denied the conduct. He also claims that the
trial court erred in finding that he engaged in several acts of touching inside her
clothes and between her buttocks when she had not testified about this in her
deposition.
It is well settled that a court of appeal may not set aside a trial court’s or a jury’s finding of fact in the absence of ―manifest error‖ or unless it is ―clearly wrong,‖ and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable.
Rosell v. Esco, 549 So.2d 840, 844 (La.1989).
Terry specifically takes issue with the trial court’s finding that he performed
―tittie twisters‖ on Melissa; an act the trial court described as ―a painful and
offensive gesture which needs no elaboration.‖ At trial, Melissa explained that
Terry would grab her breasts from the underside while saying ―honk, honk‖ and
laughing. He referred to this action as a ―tittie twister.‖ Melissa agreed he did not
actually grab and twist her nipples, as the term contemplates. However, he did
grab her breasts. It was the name Terry gave to this touching. Kimberly also
testified that Terry would refer to a ―tittie twister‖ when he would place his open
hands on her breasts and twist the entire breast. All the girls testified that the
tickling was aggressive and painful.
5 When presented with her deposition testimony, Melissa agreed that she did
not mention that Terry had stuck his finger between her buttocks at that time.
However, she explained that she was actively trying not to remember the things
Terry did, and upon reflection, she later remembered this incident.
The trial court heard all of Melissa’s testimony and had the benefit of her
deposition testimony. We find that any inconsistencies in Melissa’s testimony did
not rise to the level of manifest error warranting a reversal of the trial court’s
findings.
MENTAL ANGUISH
In his third assignment of error, Terry argues that it was error for the trial
court to find that the girls suffered mental anguish due to Terry’s sexual abuse,
arguing that mental anguish damages are allowable only under La.Civ.Code art.
2315.6. Article 2315.6 provides for mental anguish damages when viewing an
event causing injury to another or coming upon the scene soon thereafter. Terry’s
argument is flawed because Louisiana law allows mental anguish damages in many
other circumstances and not just pursuant to La.Civ.Code art. 2315.6.
Pursuant to La.Civ.Code art. 2315, a tort-feasor must compensate the tort
victim for all the damages caused by his actions. McGee v. A C and S, Inc., 05-
1036 (La. 7/10/06), 933 So.2d 770. Furthermore, Article 2315 authorizes
compensatory damages, which are damages designed to place the tort victim in the
position she would have been in had the tort not been committed. Id.
Compensatory damages include special and general damages. Id. General
damages are ―ʽthose which may not be fixed with any degree of pecuniary
exactitude but which, instead, involve mental or physical pain or suffering,
inconvenience, the loss of gratification of intellectual or physical enjoyment, or
6 other losses of life or life-style which cannot really be measured definitely in terms
of money.’‖ Id. at 774 (quoting Duncan v. Kansas City S. R.R., 00-66, p. 13 (La.
10/30/00), 773 So.2d 670, 682)(emphasis added). ―Courts commonly list different
elements of general damages, including mental anguish and physical pain and
suffering, both past and future, separately.‖ Id. at 774-75; Travis v. Spitale’s Bar,
Inc., 12-1366 (La.App. 1 Cir. 8/14/13), 122 So.3d 1118, writs denied, 13-2409, 13-
2447 (La. 1/10/14), 130 So.3d 327, 329.
The girls were entitled to compensation for the mental anguish they
experienced due to Terry’s sexual abuse as an element of general damages. This
assignment of error has no merit.
EMOTIONAL AND PSYCHOLOGICAL INJURY
In his next three assignments of error, Terry argues that it was error for the
trial court to award the girls damages for emotional and psychological injury
without expert testimony. Terry also argues that girls are unwilling to admit they
are responsible themselves for their emotional and psychological state. He further
argues that blaming him for their emotional issues is not enough to establish that
his actions caused their problems.
Expert testimony to support recovery for emotional and psychological injury
is not necessary. Dowden v. Mid State Sand & Gravel Co., Inc., 95-231 (La.App. 3
Cir. 11/2/95), 664 So.2d 643, writ denied, 95-2864 (La. 2/2/96), 666 So.2d 1099;
Laurents v. Louisiana Mobile Homes, Inc., 96-976 (La. 2/5/97), 689 So.2d 536.
The plaintiffs’ testimony alone is sufficient. Id. This court in Dowden, citing
Kolder v. State Farm Ins. Co., 520 So.2d 960 (La.App. 3 Cir. 1987), recognized
that sometimes more than just the plaintiff’s self-serving testimony is required to
establish mental anguish damages. This court recognized that other lay testimony
7 and the circumstances surrounding the case may be sufficient evidence to support a
plaintiff’s claim for mental anguish damages.
In addition to their own testimony concerning the emotional turmoil they
faced for years, the girls’ father, paternal grandmother, Melissa’s husband, and
Stephanie’s boyfriend, all testified regarding the issues the girls dealt with over the
years as a result of Terry’s sexual abuse.
Testimony revealed that Terry began sexually touching and verbally abusing
Melissa when she was around ten years old. When Melissa finally left after a year
of the sexual abuse, his attentions turned to Stephanie, who was also approximately
ten years old. His abuse of Stephanie continued for approximately five years
before she left the home. Finally Terry’s attentions turned to Kimberly, who was
about twelve or thirteen years old at the time. Terry took advantage of the young
ages of the girls and his position as their stepfather for his own sexual desires and
gratification.
At trial, Terry tried to suggest that the divorce of the girls’ parents, their
unstable relationships, and their use of drugs are what caused their problems.
However, we agree with the trial court that the girls’ use of drugs and unstable
relationships began after Terry started sexually abusing the girls. Up until that
time, the girls had fairly normal lives and relationships with friends.
We find no error in the trial court’s reliance upon the testimony of the girls
and other witnesses in finding that Terry’s conduct caused emotional and
psychological injury to the girls.
8 AMOUNT OF DAMAGES
Terry’s final assignment of error concerns the amount of damages awarded to each
girl. Terry claims that the amount of $50,000 awarded to each of the girls was
excessive.
The trial court’s award of damages included (1) mental anguish, humiliation,
embarrassment, etc., resulting from violations of unwanted touching and verbal
aggression, and (2) residual emotional and psychological injury. Punitive damages
pursuant to La.Civ.Code art. 2315.7 were not even considered because the trial
court’s award of $50,000 in general damages was subject to the stipulated
jurisdictional limitations under La.Code. Civ.P. art. 1732(1)(a). Louisiana Code of
Civil Procedure Article 1732(1)(a) provides that a defendant is not entitled to a
trial by jury when the petitioner stipulates that the cause of action does not exceed
$50,000.
This court in Dauzat v. Dolgencorp, LLC, 15-1096, pp. ___ (La.App. 3 Cir.
4/6/16), ___ So.3d ___, ___ (alteration in original), recently reviewed an appellate
court’s function in reviewing general damage awards as follows:
―Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.‖ La.Civ.Code art. 2315(A). When assessing general damages, ―much discretion must be left to the judge[.]‖ La.Civ.Code art. 2324.1. The role of an appellate court when reviewing general damage awards is to review the trial court’s exercise of discretion, it is not the role of an appellate court to decide what it considers to be an appropriate award. Youn v. Mar. Overseas Corp., 623 So.2d 1257 (La.1993), cert. denied, 510 U.S. 1114, 114 S.Ct. 1059, 127 L.Ed.2d 379 (1994); Melder, 154 So.3d 781. 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.
9 Youn, 623 So.2d at 1261. See also Jeansonne v. City of Marksville, 15–298 (La.App. 3 Cir. 11/25/15), 180 So.3d 608. Since the trial court is in the best position to evaluate witness credibility and see the evidence firsthand, it is afforded much discretion in independently assessing the facts and rendering an award. Miller v. LAMMICO, 07– 1352 (La.1/16/08), 973 So.2d 693; McCarthy v. Entergy Gulf States, Inc., 11–600 (La.App. 3 Cir. 12/7/11), 82 So.3d 336, writ denied, 12– 72 (La.3/9/12), 84 So.3d 553.
Testimony in the present case revealed that the girls have trust and anger
issues. They are not very outgoing. As a result of the criminal and civil
proceedings, the girls no longer have a relationship with their mother and her
family. Their personal relationships with friends and other family members have
been affected.
The girls’ paternal grandmother, Gayle Leblanc, testified that both Melissa
and Stephanie are withdrawn and do not trust anybody. They don’t like to be
hugged. It was her opinion that, although Stephanie is tough, she drinks to handle
the pain. Melissa has panic attacks. She explained that none of the girls have a
good opinion of themselves. She stated that all three girls used to be affectionate
and now they are not.
Joey testified that all three of his daughters are untrusting, have anger issues,
are withdrawn, and don’t like being touched. He stated that they tended to
befriend troubled individuals. Joey noticed that the girls’ behavior changed before
they came to live with him. He has also noticed that the girls have been affected
by their mother’s actions since she sides with their abuser.
Zach Wise has been married to Melissa since 2013. He testified that she is
not very quick to trust other people and doesn’t speak if not comfortable with
someone. One time he tried to catch her as she was falling off the bed, which
scared her just because he touched her. It was at this point that Melissa told Zach
10 about Terry’s sexual abuse. Zach also recounted a recent event at K-Mart when
they were shopping. The two got separated, and Melissa broke down in a panic
and crying.
Devon Morvant, who has known Stephanie for about five years and has a
child with her, testified that she does not trust anyone and barely trusts her own
family. He testified that it was the birth of their son that actually allowed the
couple to start bonding.
Kimberly does not like having her breasts touched or viewed. She is also
bothered by men with bushy mustaches because Terry has one. Kimberly testified
that her mother called her after the court proceedings started and told her that she
did not want the girls to get Terry in trouble. Her mother was afraid she would
lose the things she loved. Kimberly was upset that her mother would care more
about objects than her daughters. Kimberly has not spoken to her mother since this
incident. She was once very close to her mom. This separation has caused her
much pain.
In Doe v. Roman Catholic Church for the Archdiocese of New Orleans, 615
So.2d 410 (La.App. 4 Cir.), writs denied, 618 So.2d 412, 413 (La.1993), the fourth
circuit affirmed a jury award of $150,000 in general damages and $20,000 in
special damages to a fourteen-year-old girl who was by molested by a church
youth organization volunteer. The facts of the case were documented in a previous
appeal in Doe v. Roman Catholic Church for the Archdiocese of New Orleans, 602
So.2d 129 (La.App. 4 Cir. 1992). The volunteer tutored the victim on four
occasions. During the first three tutoring sessions, the volunteer tried to hug and
kiss the victim when they were walking to his car and when he was driving her
home. During a fourth tutoring session, the volunteer kissed the victim, pushed her
11 to the floor, raised up her blouse, and began licking and kissing her breasts. When
taking her home after that session, the volunteer placed the victim’s hand between
his legs and asked her if she wanted to touch him there. She withdrew her hand
and said no. Once the victim’s parents learned of the molestation, the parents
began to blame her for the molestation and the girl became a prisoner in her own
home. She eventually ran away from home and went to live with a boyfriend and
his mother. She later dropped out of school.
Based on the evidence, we cannot say that the trial court abused its
discretion in awarding the girls $50,000 each in damages. Melissa and Kimberly
suffered sexual abuse at the hands of Terry for at least a year. Stephanie suffered
sexual abuse for five years. Not only has Terry’s sexual abuse of the girls affected
their relationship with their mother, it continues to affect the relationships they
have formed since the sexual abuse occurred. The girls continue to suffer mentally
and psychologically due to the sexual abuse they suffered by an adult who took
advantage of their young age and his position as their stepfather.
For the reasons expressed in this opinion, we affirm the judgment of the trial
court. All costs of this appeal are assessed to Terry Cooley.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts of Appeal. Rule 2–16.3.