author: COOKS, Judge.

text:
    Everett CUROLE, Jr., et al. v. Rory DELCAMBRE, et al.
    16-550
    Court of Appeal of Louisiana, Third Circuit.
    08/02/2017

      Carl J. Rachal, Simon Law Offices, 1408 West Pinhook Rd., Suite A, Lafayette, LA 70503, (337) 232-2000, ATTORNEY FOR PLAINTIFFS/APPELLANTS, Everett Curóle, Jr., et al.
    Anthony J. Fontana, Jr., 210 N. Washington Street, Abbeville, LA 70510, (337) 898-8332, ATTORNEY FOR DEFENDANTS/APPELLEES, Rory Delcambre and Bonnie Delcambre
    Allan L. Durand, 235 La Rue France, Lafayette, LA 70508, (337) 237-8501, ATTORNEY FOR DEFENDANT/APPEL-LEE, Lori F. Toups
    Court composed of Ulysses Gene Thibodeaux, Chief Judgé, Sylvia R, Cooks, and Phyllis M. Keaty, Judges.
   COOKS, Judge.

hThis matter arose out of an incident that took place in the early morning hours of December 21, 2002. It is undisputed that seven individuals, namely Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Rayford Champagne, Glenn P. Gadrow and Lori Toups, arrived in three vehicles at the residence of Everett and Charlene Curóle shortly after 3:00 a.m. It was further established that the Curole’s residence was broken into, and a brutal physical attack was committed upon Mr. Curóle in the Curóles’ bedroom. Mr. Cu-róle sustained serious injuries as a result of punches and kicks he received during the assault.

Briefly, the facts indicate several hours before the attack, the Curóles were at the Café Museum bar in Erath, when they encountered Lori Toups and her companion, Glenn Gadrow. Lori recounted that Charlene Curóle made some negative comments to her about Bonnie Delcambre. Lori further testified'that Charlene threatened “to beat the crap out of [Bonnie] and kill her.” At some point in. the evening, the Curóles left Café Museum and returned to their home in Erath.

Shortly after speaking with Charlene Curóle at the .bar, Lori Toups called Bonnie Delcambre and told her what had allegedly been said about her by Charlene Curóle, Lori Toups made several, calls to Bonnie Delcambre that, evening. At the time, Bonnie Delcambre, Rory Delcambre, Quinn Delcambre, Tricia Menard and Ray-ford Champagne were at a Christmas party for a company that was partially owned by Rory Delcambre,

After the cell phone calls began, the Delcambre defendants left the Christmas party and went to a bar called the Boat Dock. Lori Toups and Glenn Gadrow showed up at the Boat Dock shortly thereafter. Lori Toups began ^speaking to Bonnie Delcambre about her conversation with Charlene Curóle. Bonnie Delcambre testified she became enraged at what she was told.

As she became more angry, Bonnie Del-cambre decided she was going to confront Charlene Curóle over the comments. She abruptly left the bar and proceeded to her vehicle in the parking lot. She was followed out of the bar by the others. Bonnie Del-cambre then got in her vehicle, accompanied by Rory Delcambre, Trisha Menard and Rayford Champagne. Lori Toups and Glenn Gadrow followed in another vehicle, and Quinn Delcambre later joined the caravan in his vehicle.

They first stopped at Café Museum, where Lori Toups had previously encountered the Curóles. Upon discovering the Curóles were not there, the group then proceeded to another bar, The Oaks. Once again, they discovered the Curóles were not present at that bar. At this point, Bonnie Delcambre decided to go to the Curóles’ residence to confront Charlene Curóle. The three vehicles then proceeded to the Curóles’ residence.

After arriving, Bonnie Delcambre went to the front door of the Curóles’ mobile home and kicked it in. All seven of the defendants then entered the mobile home. Bonnie Delcambre went to the Cu-róles’ bedroom, where they were sleeping. Bonnie Delcambre woke up Charlene Cu-róle to’ confront her about the comments she allegedly made to Lori Toups. While this was occurring, Everett Curóle testified he woke up and saw Bonnie Delcam-bre and three men standing at the foot of his bed. Mr. Curóle then sustained a severe beating from several of the men, identified at trial as Rory Delcambre, Quinn Delcambre and Glenn Gadrow.

While the assault upon Mr. Curóle was ongoing, the others punched holes in the walls of the Curóles’ residence. The defendants then left the scene, leaving Mr. Cu-role bloodied and beaten.

| ¿Charlene Curóle called 911 to report the incident. Shortly thereafter, deputies from the Vermilion Parish Sheriff’s Office (VPSO) arrived at the Curóles’ residence at 4:12 a.m., and took statements from the Curóles. Mr. Curóle was transported from the scene by ambulance to the emergency room of Abbeville General Hospital. He sustained a broken nose, broken/cracked ribs, multiple lacerations to his face and head, and a laceration to his kidney.

Upon leaving the Curóles’ residence, all of the defendants except Quinn Delcambre went to have breakfast at a nearby restaurant. When Quinn Delcambre arrived home, there were officers from the VPSO waiting. Quinn Delcambre was questioned by police and gave a statement. He then phoned his mother to tell her that police would be heading to her residence to question her about the incident. All of the remaining defendants headed to the home of Bonnie and Rory Delcambre, where they were met by the police. Subsequently, Rory Delcambre, Bonnie Delcambre, Lori Toups and Glenn Gadrow went to the VPSO to give statements.

Following their investigation, the Sheriffs Office filed criminal charges against Bonnie Delcambre, Quinn Delcambre and Glenn Gadrow. A civil lawsuit was filed on March 26, 2003 by the Curóles, on behalf of each other and their two minor chiMren (Jonathan and Nicholas), against Rory Delcambre, Bonnie Delcambre, Trida Broussard, Quinn Waguespack and Glenn Gadrow. On March 15, 2005, the petition was amended to correct the names of Trida Broussard to Trida Menard and Quinn Waguespack to Quinn Delcambre. The petition was also amended to add Lori Toups, Rayford Champagne and State Farm Insurance Company (the insurer of Bonnie and Rory Delcambre) as additional defendants.

State Farm subsequently filed a motion for summary judgment, contending the intentional act exclusion barred any recovery under its policy issued to the | BPelcambres. The trial court granted the motion, dismissing State Farm from the claims made by the Curóles.

Defendants Glenn Gadrow and Rayford Champagne did not file answers to the Curóles’ petition. Thus, the Curóles sought a preliminary default against those defendants. On July 8, 2010, the preliminary default was obtained against the two defendants. After a confirmation hearing, the trial court found the evidence established that “defendant Glenn P. Gadrow and defendant Rayford Champagne were acting in concert with each and the other named defendants to commit intentional and willful acts upon Everett Curóle and Charlene Curóle to include the unauthorized entry of the Curóles’ inhabited dwelling and the assault and battery upon Everett Curóle and Charlene Curole[.]” Accordingly, the trial court found the two defendants liable in the following amounts:

$ 54,413.67 Everett Curóle, Special Damages
$ 50,000.00 Charlene Curóle, General Damages
$ 25,000.00 Nicholas Curóle, Loss of Consortium Damages
$ 25,000.00 Jonathan Curóle, Loss of Consortium Damages

The five remaining defendants filed a Petition to Annul the default judgment granted against defendants Glenn Gadrow and Rayford Champagne, contending the trial court erred in signing the submitted judgment that found those defendants “were acting in concert with each and the other named defendants to commit intentional and willful acts” on the Curóles. They maintained the “minutes of Court attached hereto prove that the Court made no such finding of ‘acting and concert’, nor could the Court have made such a finding as the [Curóles] never pleaded conspiracy in any pleading filed, nor any facts that would allege conspiracy.” The Curóles filed an Exception of No Cause of Action to the defendants’ Petition to Annul. On August 22, 2011, the trial court granted the | fiCuroles’ Exception of No Cause of Action and dismissed defendants’ Petition to Annul.

With respect to the other five defendants, the Curóles then filed a Motion for Summary Judgment seeking to enforce the preliminary default judgment against them on the basis they were all liable in solido. That summary judgment was opposed by the remaining defendants. In opposing the motion, Lori Toups maintained the Curóles had not alleged any conspiracy among the defendants, or that Lori Toups had assisted or encouraged the attack on Everett Curóle. The other defendants also opposed the motion, similarly alleging the Curóles failed to allege any conspiracy or agreement to cause any injury to the Curóles. They also denied being involved in the infliction of any injury upon the Curóles. The trial court denied the motion for summary judgment.

The matter then went to'a bench trial on the merits which commenced on October 26, 2015. After hearing evidence and argument of counsel, the trial court took the matter under advisement. The parties were allowed to file post-trial memoranda. The trial court found in favor of the defendants and dismissed the Curóles’ claims. The trial court gave reasons for ruling, which state in pertinent part:

At the trial, plaintiffs [sic] were proceeding under a conspiracy theory, however, defendant’s [sic] alleged that the petition filed by plaintiffs [sic] failed to allege conspiracy with particularity. Clearly, the plaintiff[s] set forth material facts in the original Petition for Damages and -the Supplemental filings. However, the heightened standard of ‘conspiracy’ is at issue here.
In this case, there is no dispute that all of the defendant’s [sic] arrived at the Curole’s [sic] residence in the early morning hours and an attack was committed upon Mr. Curóle. At trial, there was testimony that the plaintiffs [sic] were awakened to find four individuals in their bedroom (Bonnie Delcambre, Rory Delcambre, Quin [sic] Waguespack Delcambre, and Glen [sic] Gadrow). It was further adduced that Ms. Charlene Curóle was able to identify each of those individuals in the bedroom, however, she was unable to identify those who actually struck her husband. Accordingly, Mr. Curóle was also unable to identify the attackers! Testimony was also lacking as to [7the ‘conspiracy* theory to the events leading up to the attack in the Curóle home.
In Ross v. Conoco, [02-299 (La. 10/15/02), 828 So.2d 546], the Supreme Court discussed the issue of pleading conspiracy, stating that the court of appeal began by noting that when a civil conspiracy is alleged and proven, the injured party may recover against all participants in solido, and not merely against those who physically committed the injury. The Court further explained that the civil conspiracy must be sufficiently alleged, indicating that while conspiracy may not need to be pled specifically, the petitioner must allege it in some way in the pleadings.
In the instant case, the petitioner’s [sic] did not specifically allege conspiracy. Furthermore the plaintiffs] did not nor was it proven that the defendant’s [sic] intent was to cause harm to Mr. Curóle. The petitioner’s [sic] were only able to place the defendant’s [sic] inside the house. Therefore, -this Court finds in favor of the remaining defendant’s [sic], dismissing petitioner’s [sic] claims.

The Curóles timely appealed the trial court’s judgmént in favor of the defendants, asserting the following assignments of error:

1. The trial court committed reversible error and abused its discretion by ruling that the plaintiffs were required to plead conspiracy with particularity and disallowed testimony related to the actual conspiracy.
2. The trial court committed reversible error and abused’its discretion in finding that there was no conspiracy because the plaintiffs' did not prove that the defendants’ intent was to cause harm to Mr. Curóle.

ANALYSIS

In their first assignment of error, the Curóles maintain the trial court committed reversible error and abused its discretion by ruling that the plaintiffs were required to plead conspiracy with particularity and disallowing testimony related to the actual conspiracy.

A review of the trial court’s reasons for ruling indicate some confusion on its part. Relying on Ross v. Conoco, 02-299 (La. 10/15/02), 828 So.2d 546, and noting language in that case declaring while a conspiracy “[need not] be pled specifically,” a plaintiff “must allege it in some way in the pleadings,” the trial Ucourt dismissed the Curóles’ claims finding they failed to “specifically” plead conspiracy. We find the Curóles’ pleadings sufficiently complied with the pleading requirements contained in the Louisiana Code of Civil Procedure, and find the trial court erred as a matter of law in holding there existed some heightened pleading formality, requiring them to recite the word “conspiracy.”

Initially, we find the trial court’s reliance on Ross was misplaced. As the Cu-róles note, the Ross case involved litigation by the plaintiffs seeking punitiye damages under La.Civ.Code art. 2315.3 for the defendants alleged storage, - handling and transportation of vinyl chloride in a wanton or reckless manner. The Ross court stated;

... [Pjlaintiffs have failed to show to this court how conspiracy to commit battery and to misrepresent .fraudulently the harmful effects of vinyl chloride amount to a conspiracy to store, handle, or transport in a wanton or reckless manner the vinyl chloride that, injured Ross and Landon. Even if plaintiffs did sufficiently allege a conspiracy to store, handle, or transport wantonly or recklessly the offending vinyl chloride, we find that former Article 2315.3 does not support the imposition of punitive damages against parties based solely on the physical acts of their co-conspirators.
Although Article 2324 provides for sol-idary liability among co-conspirators' for the damage caused by a willful or intentional act, the court of appeal in this case correctly held that a court cannot assign liability for punitive damages among co-conspirators in solido. Ross v. Conoco, Inc., 2000-1757, p. 15 (La.App. 3d Cir.12/26/01), 805 So.2d 352, 365. The purpose of solidary liability is to compel any tortfeasor'-to pay an entire'judgment. See La. Civ.Code art. 2324(A). The purposes of punitive damages, on the other hand, are to punish defendants and deter similar conduct. James v. Formosa Plastics Corp., 95-1749, p. 4 (La. App. 1st Cir.4/4/96), 672 So.2d 319, 322, writ denied, 96-1091 (La.11/22/96), 683 So.2d 285. The James court found that punitive damages cannot be assessed against co-defendants in solido because, to accomplish their purpose of punishment and. deterrence, punitive damages are assessed against an individual defendant based on his individual culpability, not on the acts of others. James, 672 So.2d at 322. We agree with the First Circuit’s analysis in James.
Additionally, the language of Article 2324 that co-conspirators are answerable in solido, “for the damage caused by such act” indicates that the Article imposes solidary liability only for compensatory damages ... It is compensatory damages that recompense a plaintiff for injury caused by a defendant’s actInPunitive damages, on the other hand, are not ca/used by a defendant’s act and are not designed to make an injured party “whole.” Rather, they are meant to punish the tortfeasor and deter specific conduct to protect the public interest. Billiot [v. B.P. Oil Co., 93-1118, p. 11 (La.9/29/94), 645 So.2d 604, 612]. Consequently, we conclude that the solidarity imposed by Article 2324 cannot be used to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator’s individual conduct must fall .within the scope of the applicable penal statute.

Id. at 552-53.

Ross held that the solidary liability cannot be imposed to assess punitive damages against a party based on the acts of co-conspirators. To be subject to punitive damages, each co-conspirator’s individual conduct must fall within the scope of the applicable penal statute. In the present case, the Curóles are not seeking punitive damages, but are only seeking compensatory damages for the actions of those defendants who were engaged together in overt acts which caused the damages to them.

Louisiana is a fact pleading state under the Louisiana Code of Civil Procedure. Springer v. Nannie O’Neal Apartments, 13-570 (La.App. 3 Cir. 11/13/13), 125 So.3d 606. Although it has always been necessary to state a cause of action and to allege the material facts constituting a cause of action, it is not necessary to allege all the evidence or legql theories supporting the basis for recovery. Id. Louisiana Code of Civil Procedure Article 854 provides:

No technical forms of pleading are required.
All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs. As far as practicable, the contents of each paragraph shall be limited to a single set of circumstances.

As the Curóles note, our Code of Civil Procedure only requires allegations with particularity in circumstances “constituting fraud or mistake.” La.Code Civ.P. art. 856. The trial court’s reference to a “heightened standard of ‘conspiracy’ ” has no support in Louisiana’s statutory or jurisprudential law.

|inThe Curóles were only required under the Louisiana Code of Civil Procedure to put forth the material facts upon which the cause of action is based. This was clearly stated by the Louisiana Supreme Court in Greemon v. City of Bossier City, 10-2828, 11-39 (La. 7/1/11), 65 So.3d 1263. In that case, the court explained Louisiana’s fact pleading system:

Louisiana’s Code of Civil Procedure uses a system of pleading based upon the narration of factual allegations. See Montalvo v. Sondes, 93-2813, p. 6 (La.5/23/94), 637 So.2d 127, 131. As described in [La.Code Civ.P.] art. 854: “No technical forms of pleading are required. All allegations of fact of the petition, exceptions, or answer shall be simple, concise, and direct, and shall be set forth in numbered paragraphs.” The fact-pleading requirement replaces an earlier “theory of the case” pleading requirement. See [La.Code Civ.P.] art. 862, Official Revision Comments—1960, cmt. (b). Because the “theory of the case” pleading requirement has been abolished, “[s]o long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleadings and evidence.” Cox v. W.M. Heroman & Co., Inc., 298 So.2d 848, 855 (La.1974), overruled on other grounds by A. Copeland Enterprises, Inc. v. Slidell Memorial Hosp., 94-2011, p. 9 (La.6/30/95), 657 So.2d 1292, 1299. However, even though the “theory of the case” need no longer be pled, [La.Code Civ. P.] art. 891 provides that a petition “shall contain a short, clear, and concise statement of all causes of action arising out of, and of the material facts of, the transaction or occurrence that is the subject matter of the litigation.” (Emphasis added.)

Id. at 1268.

A review of the Curóles’ amended petition shows it complied with the fact-pleading requirement of La.Code Civ.P. art. 854, setting forth the actions, omissions, and delictual conduct of all the named defendants:

4.
While petitioners were sound asleep in their home on the date and the time aforesaid, defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Lori Toups, Rayford Champagne and Glenn Gadrow, broke down the front door of the petitioners home and thereafter engaged in a savage and brutal attack upon petitioners while they lay sleeping helplessly in their bed.
5.
Petitioners awoke to the animalistic beatings being viciously administered by the defendants with fists and a pistol and utterly and completely without regard to the safety and well-being of petitioners Inand to the contrary, with the intent and effect of causing severe bodily injury to petitioners.
7.
Petitioners show that the incident and the resulting injuries and damages were caused solely by reason of the fault, negligence, actions and omissions of duty on the part of defendants.
8.
Petitioner, Everett A. Curóle, Jr., alleges that the fault, negligence, actions and omissions of duty of the defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre', Lori Toups, Rayford Champagne and Glenn Gadrow, produced, as a cause in fact, the following physical injuries sustained by petitioner, Everett A. Curóle, Jr.:
11.
Petitioner, Charlene Curóle, alleges that the fault, negligence, actions and omissions of duty on the part of the defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Del-cambre, Lori Toups, Rayford Champagne and Glenn Gadrow, produced, as a cause in fact, the following physical injuries sustained by petitioner, Charlene Curóle:
15.
As a direct result of the delictual conduct of defendants, Rory Delcambre, Bonnie Delcambre, Tricia Menard, Quinn Delcambre, Lori Toups, Rayford Champagne and Glenn Gadrow, petitioners, Everett A. Curóle, Jr. and Charlene Curóle, sustained property damage to their home, including a broken front door and door frame, as well as the breakage, vandalization and ruin of various personal and household effects and as a result, petitioners, Everett A. Cu-róle, Jr. and Charlene Curóle, are entitled to reasonable compensation for all damages reasonable in the premises.

The pleadings allege that the defendants entered the Curóles’ residence together “with the intent and effect of causing severe bodily injury to petitioners.” The evidence and testimony at trial corroborated that allegation. There was a previous ruling by the trial court in the confirmation of default judgment, albeit by a different trial judge, that Glenn Gadrow and Rayford Champagne “were acting in concert with each and the other named defendants to commit intentional and 112willful acts” against the Curóles. We find the Curóles’ petition sufficiently alleges a conspiracy on the part of the named defendants.

The record establishes the trial court, mid-trial while counsel for the Curóles was questioning Bonnie Delcambre, sustained the defendant’s objection to any further questioning of her and any other witnesses regarding the alleged conspiracy between the defendants. The trial court’s ruling was based on the erroneous conclusion that the Curóles failed to plead conspiracy with particularity. This error hampered the Cu-roles’ ability to present additional evidence on the elements of conspiracy. However, we find even absent this evidence the record, as will be set forth, clearly establishes a conspiracy existed between the defendants in this case.

The Curóles also assert the trial court committed reversible error in finding there was no conspiracy because the Cu-róles failed to prove the defendants’ intent was to harm Mr. Curóle. The Curóles maintain the appropriate inquiry is whether there was a tort perpetrated through the instrumentality of a conspiracy.

Louisiana Civil . Code Article 2324(A) provides:

He 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..

Defendants note the article was amended in 1987 to delete the language “assists'or encourages” and was replaced by the specific use of the word “conspires.” Defendants maintain “assistance or encouragement can exist without a conspiracy," Regardless, the law maintains for a conspiracy to exist, it must be' shown “an agreement existed to commit an illegal or tortious act, which act was actually committed, which resulted in the plaintiffs injury, and there was an agreement as to the intended outcome or result.” Owens v. Byerly, 09-262 (La.App. 3 Cir. 10/7/09), 23 So.3d 393, 398, writ denied, 10-117 (La. 4/16/10), 31 So.3d 1063, (quoting Crutcher-Tufts Res., Inc. v. Tufts, 07-1556, pp. 3-4 (La.App. 4 Cir. 9/17/08), 992 So.2d 1091, 1094). Louisiana Civil Code Article 2324(A).requires a meeting.of the minds or collusion between the parties for the purpose of committing wrongdoing. Evidence of such a conspiracy can be actual knowledge of both parties or overt actions with another, or can be inferred from the knowledge of the alleged co-corispirator of the impropriety of the actions taken by the other co-conspirator. Boudreaux v. Jeff, 03-1932 (La.App. 1 Cir. 9/17/04), 884 So.2d 665; Stephens v. Ball Enforcement of Louisiana, 96-809 (La.App. 1 Cir. 2/14/97), 690 So.2d 124, writ denied, 97-585 (La. 4/18/97), 692 So.2d 454.

This court in Miller v. Keating, 339 So.2d 40, 43 (La.App. 3 Cir. 1976), writ granted, 341 So.2d 901 (La.), affirmed and amended, 349 So.2d 265 (La.1977), noted:

If a conspiracy is conceived and executed and a private injury results, the person injured has a cause of action against all of the conspirators. The action is for damages caused by acts committed pursuant to a formed conspiracy, and all of the conspirators will be regarded as having assisted or encouraged in the performance of those acts. Tabb v. Norred, [277 So.2d 223 (La.App. 3 Cir.), writ denied, 279 So.2d 694 (La.1973)] and cases cited therein.

(Emphasis added),

A conspiracy is also defined in Black’s Law Dictionary as a “combination or confederacy between two or more persons formed-for the purpose of committing, by their joint efforts, some unlawful ... act.” The court in Economy Carpets Manufacturers and Distributors, Inc. v. Better Business Bureau of Baton Rouge, Inc., 333 So.2d 765, 768 (La.App. 1 Cir.), writ denied, 334 So.2d 428 (La.1976), noted “[i]n Louisiana, if a conspiracy to do an unlawful act is. entered into by two or more persons, and one of them does an act in furtherance thereof, all of the conspirators may be held civilly.liable for damages to a third party resulting therefrom. Article 2324, Civil Code, supra; Tabb v. Norred, 277 So.2d 223 (La.App. 3 Cir. 1973).”

In Miller, 339 So.2d 40, the defendant in that ease did not directly participate in the beating of the plaintiff, but merely waited in the vehicle while it occurred.' That defendant appealed his conviction as a co-conspirator, arguing since he did not actually participate in the battery and he did not intend to harm the plaintiff, he was not liable in damages. This court held:

We find that Guillet at least tacitly éntered into a conspiracy with Keating and Howren to injure plaintiff, that thereafter he assisted them in committing a battery on Miller pursuant to that conspiracy, and that the latter sustained severe injuries as a result of that battery.
We conclude, therefore, that defendant Guillet assisted or encouraged in the commission of the battery on plaintiff Miller, and that he is answerable, in solido, with the other defendants for the damage caused by that act.

Id. at 43.

In Tabb, 277 So.2d 223, a police officer responded to a call of glass breaking at a neighborhood school and lights on at the school. The officer went in the school to investigate and located the defendant, Vincent, who was armed with a pistol. The officer was then shot by the co-defendant, Norred, who was also armed. This court, in affirming the trial court’s determination of liability on the part of Vincent, noted that Vincent “entered into a conspiracy with Norred to commit an unlawful act, and he actively participated in committing that offense.” Id. at 228, We further noted the parties foresaw the possible consequence of shooting someone to avoid apprehension, which constituted a part of the conspiracy. We concluded that Vincent, as a co-conspirator, was liable with Norred for the officer’s injuries, even though Norred actually fired the shot.

In a prior case with similar facts, the Louisiana Supreme Court reached a comparable ruling in Rush v. Town of Farmerville, 156 La. 857, 101 So. 243 (1924). In that case, the plaintiffs son was killed by a shot fired by one. member of |1Ra mob of twenty or more persons. She instituted a suit for damages against several, members of the mob. The court found that a conspiracy had been entered into by members of the mob and held that all of those who had participated in the conspiracy were liable, in solido, for the damages sustained by plaintiff, although only one of them had actually fired the shot. The court said:

A “conspiracy” is a combination of two or more persons to do something unlawful, either as a means or as an ultimate end. State v. Slutz, 106 La. 182, 30 So. 298 [ (La.1901) ].
The conspiracy having been sufficiently established, the act done by one in furtherance of the unlawful design is, in law, the act of all. State v. Griffin, 48 La.Ann. 1409, 20 So. 905 [ (La.1896) ]. When a tort is perpetrated through the instrumentality of a combination or conspiracy, the party .wronged and injured may look beyond the actual participants in committing the injury, and join with them, as defendants, all who co-operated in, advised, or assisted in the accomplishment of the common design, for co-trespassers are bound in solido.

Id. at 247.

Under the jurisprudence, it was only necessary for the Curóles to prove that the defendants, at a minimum, tacitly entered into a conspiracy for them to be liable, in solido,'for the damages which occurred as a. result of that act. After a thorough examination, we find the record sufficiently establishes the elements of a conspiracy.

As noted previously, the Curóles were at the Café Museum bar in Erath, when they encountered Lori Toups and her companion, Glenn Gadrow. Lori recounted that Charlene Curóle made some negative comments to her about Bonnie Delcambre. Lori testified Charlene told her “she hated [Bonnie], she couldn’t stand her, and she was going to go and find her and beat the crap out of her and kill her.” At approximately 1:00 a.m. the Curóles left Café Museum and returned to their home in Erath, where they went to bed.

[,(¡Bonnie Delcambre testified she received a call from Lori Toups when she was still at a Christmas party in New Iberia. Bonnie recalled Lori told her Mrs. Curóle was “saying bad things about me,” and that “Mrs. Curóle said she wanted to come find me and beat me up and wanted to kill me.” Bonnie stated Lori called her several times while she was at the Christmas party. During the last call, Bonnie testified Lori stated “she was worried about me” and Bonnie told her they were going to the Dock Bar after the party.

According to Bonnie, when Lori walked into the Dock, she came over to her and said that she “was very worried because they were wanting to kill me or come beat me up.” Bonnie testified what Lori told her made her “very mad.” She then testified that “I just know that after her and [my] conversation, I left to meet Mrs. Curóle—I was leaving to go meet Mrs. Curóle.”

During her 2007 deposition testimony, Bonnie said the following when asked about her encounters with Lori and the raging anger she felt:

A. She called me probably three or four times. By that time, I was fuming. She was coming to find me at the Christmas party, Mrs. Curóle was. She was coming to beat me up.after we left Rory’s Christmas party, I went to that Delcambre bar again and met some friends and Ms. Toups and Mr. Glenn came to that bar. Well, Ms. Toups came up to me laughing and saying, you know, she’s coming to beat you and she wants to kill you and on and on and on. Me and Mrs. Curóle never really had any words except we talked on the phone once and she said to me that she was sorry for calling my daughter a bitch ’cause I had called her. I believe I had called her and asked her what was going on and she apologized and that afternoon, they came drop off Joey to meet us at the camp—at the landing and her and my daughter exchanged apologies and, you know I really never had anything with Mrs. Curóle except for doing that to my kids.
⅝ ⅝ ⅜
Q. You think it would have gotten to the level it did that night had [Lori] not been-
A. No, ’cause I’m not that kind of person.
|17Q. What I was asking, you think [Lori’s] the one that pushed you over the edge to make you want to go over there?
A. Yeah, I mean, if she wouldn’t have called me, I wouldn’t have known and I wouldn’t have went.
Q. And not only did she call you several times, but when you met up with her at the café or the bar, she continued.
A. Uh-huh.

After talking with Lori and becoming enraged, Bonnie testified she became intent on finding and confronting Mrs. Cu-róle over the alleged comments made to Lori. She quickly left the bar and proceeded to her vehicle. She then got in her vehicle, accompanied by Rory Delcambre, Trisha Menard and Rayford Champagne. Lori Toups and Glenn Gadrow followed in another vehicle, and Quinn Delcambre also followed in his vehicle.

In search of Mrs. Curóle, they first stopped at Café Museum, where Lori Toups had previously encountered the Cu-roles. Upon determining the Curóles were not there, the group then proceeded to another bar, The Oaks. Upon finding the Curóles were not here, Bonnie decided to go to the Curóles’ residence to confront Mrs. Curóle. The three vehicles then proceeded to the Curóles’ residence.

While Mr. and Mrs. Curóle were sound asleep in their bed, the three vehicles arrived at the Curóles’ residence. The accounts of what motivated each to do so during the early morning hours have changed over the years, as have their stories of “who did what” inside the Curóles’ home after Bonnie “broke the door down.” One thing is certain though: Mr. Curóle was brutally attacked and suffered severe injuries by the time these intruders fled the scene.

Mr. Curóle said he was awakened by the voice of Bonnie Delcambre. When he opened his eyes he saw Bonnie, Rory, Quinn, and Gadrow. He saw Rayford Champagne standing by the bedroom door. He recalled them saying they were going to teach him not to mess with any of the Delcambres in town, and they were | isgoing to teach him a lesson he would never forget. He testified Quinn “held [his] wife down,” and he was brutally beaten by several men.

Mrs. Curóle testified she was awoken between 3:00-4:00 a.m. on December 21, 2002 when she heard people in her bedroom. She described the scene as follows:

Q. Okay. Can you identify who was in your bedroom when y’all were awakened?
A. We were awakened. There was Bonnie Delcambre, Rory Delcambre, Quincy Waguespack, and his name is Glenn Ga-drow, Garrow, whatever.
Q. And do you recall anyone else—do you recall seeing Mr. Rayford Champagne?
A. They had Rayford Champagne. They had Trish Broussard and Lori Toups. They were all in my doorway of the bedroom.
Q. Do you know how they got into your home?
A. They kicked the front door opened.
Q. And when you woke up and these people were in your doorway to your bedroom, what was the next thing that happened that you recall?
A. Well, they were holding me down, and they started beating up—well, I woke up and I asked what they were doing in my house. And Mr. Delcambre said that he came to teach us a lesson.
Q. And after that, what’s the next thing you recall happening?
A. Well, they started beating up on Everette. They were holding me down.
Q. Who was holding you down?
A. Bonnie and Quint.
Q. Quinn?
A. Yes.
Q. Okay. And then, were you being hit at that time?
|1flA. Yes, sir. Bonnie kept slapping me around. Finally, I broke loose, and that’s when I broke loose. I took off running to my living room, then Quint jumped, started helping hit Everette.
Q. Quinn started beating up on Everette?
A, Yes. He started helping them beat him up.
Q. Did you actually see any one of them hitting your husband?
A. Yes, sir. They were beating him up. And once I took off running in the front, I don’t know who else jumped in there.
Q. Did you see Mr. Gadrow hitting your husband?
A. Yes, sir.
Q. Okay. And then, you were in your living room, you testified, with Bonnie Delcambre, and y’all were having an altercation fighting. What happened after that?
A. Well, that’s how my living room got tore up with the tree, the chairs and everything. And I still don’t know who punched the walls that—I got holes in the wall in my kitchen, too. I don’t know which one that did it. I mean, they had Lori Toups there, Trish Broussard and Rayford Champagne. I really didn’t know—my concern was I didn’t know if my husband was alive or dead, because I just seen splashes of blood all over.

After reviewing the record and the accounts given by all, we find the evidence as a whole establishes the Curóles’ nightmare, when awoken in the presence of intruders in their home, did not begin when Bonnie decided to “break the door down.” It started hours before when Lori Toups engaged -the Curóles in “chit chat” at the Museum Café. It is clear that Bonnie would not have searched for Mrs. Cu-role’s whereabouts during the early morning hours of December 21, 2002 if Lori Toups had not called her repeatedly at the Christmas Party and visited her at the Dock Bar repeating what Mrs. Curóle allegedly said at the Museum Café, including the threat to “kill her”.—a threat Lori denied she heard Mrs. Curóle make when her deposition testimony was taken before the trial. It is also a fact | gnthat Glenn Gadrow did not know the Curóles or the location of their home and would not have entered it had he not been driven there by Lori in her vehicle. Lori observed when she last saw the Curóles, they appeared intoxicated and said, “I figured that’s why [Mrs. Curóle] went on and on, you know, that—because she had been drinking.” Lori admitted she was drinking and taking Zoloft at the time, although she denied knowing about the warnings against consuming alcohol while taking this medication.

Although repeatedly denying she ever thought anything “physical was going to happen,” Lori eventually admitted on cross examination that a physical confrontation was a distinct possibility. Despite testifying she tried to talk Bonnie out of going to the Curóles’ residence, Lori continued in her own vehicle to follow Bonnie and entered the house after Bonnie kicked the door down. On cross examination, Lori admitted she knew it was a crime to enter the Curóles’ home, though she stated she was not thinking at the time. She also acknowledged she knew it “wasn’t something [she] was supposed to do.”

On further cross examination and after changing her version of events multiple times, Lori finally admitted she did not wait outside the house as first claimed, but entered the home shortly after Bonnie. She testified she “stuck” her head inside the bedroom and noticed Mr. Curóle with abrasions, naked, standing with a pillow in front of his “private parts” and Glenn rubbing his knuckles. Other than Glenn, she was the last intruder to leave the house, Bonnie testified she talked to no one after leaving the Dock Bar and could not recount a singíe time when Lori. Toups approached her or engaged her in conversation urging her not to go to or leave the Curóles’ home.

121 Although she. attempted..at trial to. maintain the incredulous notion that her purpose in going to the Curóles’ house at 3:80 a.m. was just to talk with Mrs. Curóle, Bonnie eventually acknowledged:

Q. And if you go into somebody’s house in the middle of the night, bad things can happen.
A. Yes, sir, I realize that.
Q. And not just for the victims who, in this case, were in the house, but for the offenders who go in.
A. Yes, sir.
Q. You do realize this could have gotten way out of hand?
A. Yes, sir, I do.
Q. And all because you decided to go into that front door, kick ttíé front door down—
A. Yes, sir.

At trial, Rory Delcambre testified he remembered only that he, sobered up enough to see his wife and Mrs. Curóle “pinned” down on the living room floor. He admitted at his earlier deposition in 2003 saying “that [he] saw everybody go into the house—[he] was the last one to go in, but [he] saw everybody go into the house.”

Tricia Champagne was asked at trial if she found it strange that her mother'wanted to speak with Mrs. Curóle at that time of. the night, and responded, ‘⅛0⅛ I didn’t.” Tricia recalled remaining in the back seat of the sports utility vehicle (SUV) after arriving at the Curóles! home but admits she was told she got out of the SUV -and “was outside by the steps.” Tricia continued to deny that she entered the home despite the testimony that she did so. But on further cross examination, Tricia admitted she was not sure whether she and her flaneé entered the home that night or later accompanied her mother to eat at the food mart because she claimed she and her flaneé were “drunk.”

122Quinn Delcambre testified he did not know the Curóles or where they lived and did not know where his parents were headed that night. He said when he got to the Curóles “everybody was outside.” He thought his mother had entered the home-so he ran in to see what was going on and to get her out because he was “protective.” He found her in the bedroom and said to her, “we need to go.” He stated he saw his mother talking to Mrs. Curóle and after “some words were said,” he said “would you please quit f— ing with the Deleam-bres?” On cross examination, Quinn was forced to backtrack and admit he did know it was the Curóles’ house:

Q. So you didn’t know the Curóles?
Á. No I didn’t.
Q. You. didn’t know this was their house?
A. No.
Q. How did you know to make that statement—
A. Oh, wait. Wait up.
Q. —because of an issue with your brother—
A. I misunderstood you earlier. Listen, I knew of the. house and where they lived, but I never been to them and I didn’t know them like that because you travel down the North Road on a regular basis. You kind of learn where people live.
Q. And I get that.
A. Yeah.
Q. That’s why I asked you specifically, if you knew this was the Curóles’ home and you said “no.”
A. That’s correct. I did say that. But I’m taking my statement back, that when you—I did pass and I know where they lived at, but I didn’t know at that time what was going on, you know.

Officer Chris Galvez of the YPSO was offered and accepted by the court as a “law enforcement” expert. Based on his investigation, Officer Galvez was asked laaif, in his opinion, he concluded the defendants were acting in concert and he replied, “I did.” Officer Galvez testified it was his belief that “choosing to get into vehicles and drive to the residence which was, I believe, planned, and then carry it out, make the illegal entry, and then commit a crime, I think that lends credence to the conspiracy.” He also stated, “I don’t believe that people are going to go to straighten things out at 4:00 in the morning without the intention of engaging in a fistic altercation. ...”

On redirect examination by the plaintiffs’ counsel, Officer Galvez was asked:

Q. Is it fair to say that your opinion about the conspiracy and acting in concert with each other is based on the totality of your investigation?
A. Yes, sir.
Q. Based on not only the statements given by Mr. Gadrow, and Mr. Wagues-pack, Ms. Delcambre, and Ms. Toups, but also your communication with the Curóles?
A. Yes, sir.
Q. So your opinion is based on a conspiracy, based on everything that you investigated?
A. The totality.

We conclude the trial court manifestly erred in finding the defendants’ intent to cause harm to the Curóles was not proven. The law establishes a conspiracy may be proved by circumstantial evidence, Hall v. Lilly, 29,624 (La.App. 2 Cir. 6/18/97), 697 So.2d 676. Moreover, it does not require that the Curóles prove each defendant knew a battery would take place in order to be held liable. Common sense preponderates in finding Bonnie Delcambre was not entering the house to have a “warm and fuzzy” conversation with the occupants. As noted, the evidence established the defendants left one bar and traveled together in a caravan of three | ¾ vehicles in search of the Curóles. They went to two different bars before then proceeding to the Curóles’ residence. Upon arriving at the residence all of the defendants participated in the unauthorized entry into the residence, and all were present during the assault and battery committed upon Everett Curóle. It is sufficient that each of the defendants participated in the furtherance of the conspiracy to find Charlene Curóle and break into the Curóles’ home for the obvious purpose of confronting Charlene. While in the home, they all evidenced their intention to cause havoc by whatever means—some punched holes in the walls while others entered the bedroom to violently assault Mr. Curóle. Quinn Delcam-bre’s comment, “that’s what you get for ****ing with the Delcambres!” clearly evidences the acts performed by the defendants was part of a plan to punish the Curóles for insulting Bonnie Delcambre. After the assault, the defendants quickly fled the home, leaving Mr. Curóle severely injured. Then, in an act of utter indifference, went to enjoy a leisurely breakfast at a nearby diner. The defendants are liable for the natural consequences that flowed from the melee that occurred within the home, which was a direct consequence of the unauthorized entry into the residence perpetrated by all the defendants. The law is clear the actionable element in a claim under La.Civ.Code art. 2324(A) is not the conspiracy itself, but rather the tort which the conspirators agreed to perpetrate and which they actually committed in whole or in part. Ross, 828 So.2d 546. Clearly, it was foreseeable that a physical altercation could result as a consequence of the defendants’ decision to illegally break into the Curóles’ home in the middle of-the night. Thus, any of the co-conspirators are liable for the injuries caused to the Curóles, even if they did not actually participate in the beating of Mr. Curóle.

The Curóles assign error in the trial court’s ruling midway through trial that prevented them from introducing further, testimony, including prior deposition testimony, to establish a conspiracy existed between the defendants. We find this 125ruling was erroneous. While the Curóles have requested we remand the case for submission of the improperly excluded “conspiracy” evidence, we have examined the record in its entirety, including the depositions, and find the evidence, as it stands, sufficiently establishes a conspiracy existed between the named defendants. Therefore, we find no reason to remand the case for introduction of any additional evidence.

We also find the damages rendered previously in the default judgment against Glenn Gadrow and Rayford Champagne reasonable and supported by the evidence. As set forth earlier the damages were:

Everett Curóle, Special Damages $ 54,413.67
Charlene Curóle, General Damages $ 50,000.00
Nicholas Curóle, Loss of Consortium Damages $ 25,000.00
Jonathan Curóle, Loss of Consortium Damages $ 25,000.00

The Curóles presented the testimony of several physicians at trial as to the nature and extent of the injuries sustained as a result of the incident. The record established Mr. Curóle suffered severe injuries as a result of the beating he received at the hands of the defendants. Mr. Curóle sustained a broken nose, broken/cracked ribs, multiple lacerations to his face and head, and a laceration to his kidney. He was transported from the scene by ambulance to the emergency room of Abbeville General Hospital. He underwent a CT of his abdomen and pelvis and a MRI of his kidneys.

As a result of Mr. Curole’s injuries, he suffered from blurred vision, chest pains, neck pain and back pain. He was treated by Dr. Ronald Lahasky, an internist, for his internal injuries, which included repeatedly passing blood in his urine. He was diagnosed with a laceration to his kidney and bladder. Due to the severity of this problem, he was referred to Dr. Ha-den LaFaye at the Houma Surgi-^Center. Dr. LaFaye inserted a rod into Mr. Curole’s penis to try to determine why he consistently had blood in his urine. It was discovered that Mr. Curóle had a he-maturia, a blood clot in his penis, which; required a cytoseopic surgical procedure on May 20,2003 to correct.

During this time period, Mr. Curóle was also being treated by Dr. Roland Miller at-the Acadiana Bone & Joint Clinic as a result of the multiple fractures to his ribs and nose he sustained due to the beating he received. Along with examining the previously taken x-rays and MRI, Dr. Miller performed a bone scan on Mr. Curóle. Dr. Miller determined Mr. Curóle sustained a ruptured sternum and several cracked and broken' ribs. Dr. Miller released Mr. Cu-role from work due to the severity of his injuries. 'It was over thirteen months after the injury before Dr. Miller released Mr. Curóle to return to work. Thus, he also suffered significant lost wages during this time.

Mr. Curóle testified even after his release to .return to work, he endured significant neck and lower back pain. In 2005, he began to treat with Barczyk Chiropractic Clinic to cope with the pain he was experiencing. He treated consistently with Barc-zyk Chiropractic Clinic until March of 2006, approximately three and one-half years following the severe beating he sustained on the morning of December 21, 2002.

Dr.- Miller, Dr, LaFaye and Dr. Ryan Vidrine (who treated Mr. Curóle at Barc-zyk Chiropractic Clinic) testified that the injuries they treated Mr. Curóle for were sustained from the incident in question. Defendants offered nothing to contradict that Mr, Curole’s injuries and medical treatment were caused by the beating he endured on December 21, 2002.-

.Mr. Curóle, at the time of the incident, was employed by Grand Isle Shipyard and worked offshore. Mr. Curóle was deemed unable to work by Dr. Miller and was not released back to employment until January 27, 2004. This washover thirteen months after he was assaulted. It was testified to by Mr. Curóle, and corroborated by Dr. Miller, that he attempted to return to work during 2003 as a crane operator. He stated he endured the pain for as long as he could, for approximately two months, before having to -quit. Mr. Curóle testified he- attempted to return to work, despite not having reached maximum medical improvement, because he was the lone support for his family and was concerned they could lose their home. Thus, we find the Curóles sufficiently established Mr. Curóle suffered approximately eleven months in-lost wages, i.e., the thirteen months he was released, from employment by Dr. Miller, minus the approximate two months he worked during that time as a crane operator.

The Curóles submitted their income tax returns for the years 2001, 2002 and 2003 to document Mr. Curole’s past earning history and establish his average monthly Salary.' Thus, we find the record before us supports the previous award of $54,413.67 in special damages, which includes Mr. Curole’s lost wages and medical expenses for'the injuries he sustained'.

We. find the amounts rendered by the trial court in its judgment fairly and adequately compensate the plaintiffs for the damages suffered at the hands of the defendants, and heretofore render those amounts.

DECREE

For- the. foregoing reasons, the trial court’s judgment dismissing the Curóles’ action for failure to plead conspiracy with particularity is reversed. Finding the evidence presented at trial established a conspiracy among the named defendants, which resulted in the damages suffered by the plaintiffs, we find defendants Bonnie Delcambre, Rory Deleambre, Trida Me-nard, Quinn •■Waguespack and Lori Toups solidarily liable for the damages which resulted from the actions that followed the unauthorized entry into the plaintiffs’ residence. Special damages are awarded in the amount of $54,413.67. Everett Curóle, Jr., is awarded $150,000.00 |gsin general damages and Charlene Curóle is awarded $50,000.00 in general damages. Nicholas and Jonathan Curóle are each awarded $25,000.00 in damages for loss of consortium. All costs of this appeal are assessed against defendants-appellees.

REVERSED AND RENDERED.

      . The record established Rory and Bonnie Delcambre were married. Trisha Menard and Quinn Delcambre were Rory and Bonnie’s children. Rayford Champagne was Trisha’s fiancé at that time,

      . We note, due to the fact the lawsuit was filed in 2003 and its procedural history spanned over a decade, there were several different trial judges who made rulings in this case.

      . Prior to 1987, La.Civ.Code art. 2324 read, in pertinent part, as follows:
      He who causes another person to do aunlawful act, or assists or encourages in the commission of’it, is answerable, in solido, with that person, for the damage caused by such act.

      . We note Lori's account at the 2015 trial of what prompted her visit to Café Museum and what transpired after she arrived, differed significantly from her deposition testimony in 2009. When asked in her deposition whether Bonnie Delcambre accurately testified she was told that night by her that Mrs. Curóle "wanted to kill her,” Lori replied "I don’t recall that.” She recalled only that Mrs. Cu-róle said "next time she sees Bonnie on the street, she’s going to kick her ass.” Lori also insisted in her deposition she never called Bonnie while in the Museum Café, which is contrary to her trial testimony and the testimony of Bonnie Delcambre.

      , The record established there was previously trouble between the Curóle and Delcambre children at school, which caused Bonnie to call Mrs. Curóle to address the situation. So she decided to confront the problem by calling Mrs. Curóle to discuss the matter. By all accounts, the conversation was not combative between the two ladies, eventually leading to an apology from Mrs, Curóle and a commitment between the two ladies to address the situation with their children.

      . We pretermit a ruling whether the trial court clearly erred in failing to assign any liability to Bonnie Delcambre and Quinn Del-cambre, even absent a finding that a conspiracy existed. Further, the other defendants entered the house and trashed it without the Curoles' consent or authorization. The trial court did not address whether these acts were tortious and sufficient to find them liable for the harm caused by each individually and independently.


source: Caselaw Access Project

author: Judge Regina Barthojomew-Woods

license: Public Domain

text:
    Casey BILLIESON, et. al. v. CITY OF NEW ORLEANS
    NO. 2016-CA-1143
    Court of Appeal of Louisiana, Fourth Circuit.
    AUGUST 2, 2017

      Joseph M. Bruno, BRUNO & BRUNO LLP, 855 Baronne Street, New Orleans, LA 70113, COUNSEL FOR PLAINTIFF/APPELLANT
    James McClendon Williams, CHEHAR-DY, SHERMAN, WILLIAMS, MURRAY, RECILE, STAKELUM & HAYES, LLP, One Galleria Blvd. Suite 1100, Metairie, LA 70001, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Chief Judge James F. McKay, III, Judge Joy Cossich • Lobrano, Judge Regina Bartholomew-Woods)
   Judge Regina Barthojomew-Woods

| tClass Counsel/Appellant, Joseph M. Bruno, brings this appeal of the trial court’s August 3, 2016 ruling in favor of Appellee, James M. Williams,- ordering payment to the Irpino Law Firm for the firm’s services in representing Mr. Williams. The payment, totaling $87,061.50, is purportedly for work performed in relation to what will be referred to as the “Billieson Litigation,” and was ordered to be drawn from an administrative expense account established specifically for the Billieson Litigation. For the reasons that follow, we reverse the ruling of the trial court and remand this matter for further proceedings.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Thé underlying case, originally filed in 1994, concerned children who suffered from exposure to lead paint in public housing buildings owned and operated by the Housing Authority of New Orleans (“HANO”). On October 27, 1997, a. hearing on class certification was conducted, and the trial court denied the plaintiffs’ request to certify the class. However, on March 3, 1999, this Court reversed the trial court’s decision, certified the class, and remanded the matter for further proceedings. Billieson, et al. v. City of New Orleans, 98-1232 (La.App. 4 Cir. 3/3/99), 729 So.2d 146. On February 9, 2000, several attorneys, including |¾ Joseph M. Bruno, were appointed as class counsel for the Billieson Litigation class action. The case continued for another ten (10) years until multiple settlements with the defendants were reached in 2010.

In two (2) separate judgments, both dated December 29, 2011, the trial court approved the settlements and ordered that forty percent (40%) of the total settlement amount be set aside for attorneys’ fees. However, class counsel could not agree upon the allocation of said fees. As a result of the disagreement among class counsel, on May 24, 2014, the trial court ordered that Scott Bickford and James Williams be appointed co-special masters pursuant to La.R.S. 13:4165, and charged them to, inter alia, “create or adopt any existing procedure for the fair, equitable and reasonable allocation and distribution of attorney fees.” The order provided that the special masters would be compensated at a rate of $350.00 per hour, and that “attorneys who assist” them would be compensated at a rate of $175.00 per hour. The special masters were ordered to “jointly submit to the Court, with copy to counsel, a monthly accounting of their billing and expenditures of cost.” Furthermore, the court ordered that “[a]ll bills must be submitted to all counsel before submission to the Court.”

On August 6, 2014, Motions to Disqualify and Remove Special Master Williams were filed by several class counsel. On August 7, 2014, Judge Chase recused herself from hearing the Motions to Disqualify Special Master Williams re-allotted the disqualification hearing to another division of the trial court. It was ultimately re-allotted to Judge Julien. A hearing ensued on October 24, 2014. On October 27, 2014, Judge Julien issued a judgment in which she, inter alia, denied the Motions to Disqualify and Remove Special Master Williams.

laOn December 8, 2014, Special Master Williams through the Irpino Law Firm, filed a motion to amend the trial court’s May 24, 2013 order, which appointed Bick-ford and Williams as co-special masters; in the motion he requested that the special masters be dismissed from the attorneys’ fee division determination portion of the underlying case. The trial court granted the motion to amend on December 15, 2014, and Special Masters Bickford and Williams were dismissed from the attorneys’ fees division determination portion of the underlying case. However, the Irpino Law Firm continued to provide legal services to Special Master Williams through March of 2015.

Over a year later, on or about June 23, 2016, Special Master Williams filed a Motion for Payment, wherein he moved for payment directly to the Irpino Law Firm in the amount of two hundred twenty-three thousand, eight hundred seventy-five dollars ($223,875.00) for services rendered. On July 5, 2016, Class Counsel/Appellant Joseph M. Bruno filed a memorandum in opposition to Special Master Williams’ motion for payment. On or about the same date, class counsel Gary J. Gamble and Jennifer N. Willis also filed oppositions to Special Master Williams’- motion for payment. A hearing on the motion for payment was held on July 13, 2016, and at the conclusion of the hearing, the trial court orally stated the following:

Well, one of the arguments that was raised specifically, I believe by Mr. Bruno’s office, is whether or not attorneys’ fees are not contemplated by the special master statute. And, as everyone in this room is aware, this case is not-has not been anything near normal since this Court has taken over this case. And while I understand that-I believe-and I am jumping back and forth between Mr. Gambel’s opposition and Miss Willis’ opposition and Mr. Bruno’s opposition and pulling bits and pieces from it, but as it relates to the fact that attorneys’ fees are not contemplated under [La. C.C.P. art. 151], and on recusal motions, I do not believe that Mr. Williams was taking a position. But the problem with it was, as I am sure Mr. Gambel Ulearned, you know, a lot of us did not realize how things were really moving with what you have to do—I did not know when I was supposed to call the Attorney General in the case and whether or not you could subpoena someone in a case, a judge in a case. So I think that there were a lot of things that were learned through the process in this case.
I am going to grant the motion for payment. However, I am going to list the attorneys’ fees for Mr. Irpino at the Attorney General rate at the time of the occurrence of the bills ... I Googled it, and the only thing I could find was some Attorney General rates for LSU and some other entities, and that came up to $175[.00] an hour.

On August 3, 2016, the trial court issued its written judgment as follows:

The Irpino Law Firm will be paid at a . rate of $175.00 per hour for its time spent representing Co-Special Master James Williams in connection with the Billieson litigation. The 497.50 hours spent by the Irpino Law Firm were justified and reasonable. However, the Court finds that $175.00 per hour is the amount which would have been charged if Co-Special Master James Williams had gone through the Attorney General’s office for representation. Although Mr. Irpino’s experience and reputation warrant his billed amount, the Court will only allow an hourly rate of $175.00 per hour. Accordingly:
It is hereby ordered that the CADA shall make payment to the Irpino Law Firm in the amount of $87,062.50 (eighty seven thousand sixty-two dollars and fifty cents) from the administrative expense account in the Billieson matter.

On August 5, 2016, Appellant, Joseph Bruno, on behalf of himself and in his capacity as class counsel, filed a motion and incorporated memorandum for new trial. The trial court denied the motion for new trial on August 9, 2016. Mr. Bruno filed a petition for order of suspensive appeal on August 12, 2016. On August 22, 2016, the trial court granted the petition for suspensive appeal and set a bond and/or security in the amount of one hundred thousand dollars ($100,000.00). Mr. Bruno then filed a request for written reasons on August 24, 2016. On the same date, Mr. Bruno notified the trial court of his intent to seek supervisory review of the trial court’s August 3, 2016 order to disburse the payment to the Irpino Law Firm and its August 22, 2016 order setting the suspensive .appeal bond in the 15amount of one hundred thousand dollars ($100,-000.00). On August 25, 2016, the trial court provided written reasons for the order and set a return date of September 26, 2016. Mr. Bruno filed a writ application with this Court on September 8, 2016, asserting that the trial court committed legal error when it set the suspensive appeal bond in the amount of one hundred thousand dollars ($100,000.00). This Court granted the writ and remanded to the trial court to set bond in accordance with La. C.C.P. art. 2124(B)(2). Bond was accordingly reset in the appropriate amount of $334,50. Now, the matter comes to this Court on Appeal of the trial court’s award of attorneys’ fees.

ASSIGNMENT OF ERROR

Appellant generally argues the' trial court erred in granting thé' motion for payment. The assignment of error has several prongs, the first of which argues that the special master statute, La. R.S. 13:4165, does not contemplate an award of attorneys’ fees. Appellant highlights the statute’s silence in that regard, and references well-established jurisprudence holding that attorneys’ fees are only,appropriate when specifically authorized-by statute or contract. Appellant makes a similar argument with respect to La. C.C.P. art. 151, the article relied upon by class, counsel in moving to disqualify Special Master Williams. Appellant equates the rights and responsibilities of a Special Master to that of a judge, based upon the Louisiana Supreme Court’s June 23, 2014 promulgation of subsection (E) to' its Code of Judicial Conduct applicable to compliance with the code, which states:

| r,During the tenure of his' or her appointment in accordance with statutory law, a special master is required to Comply with all of the provisions of Canons 1 through 5, except Canons 5C(3), 5D, and 5E.In addition, a special master will not be subject to the prohibitions in Canons 4B, 4C, 5B(2), and 6C(2). As to Canons 6 and 7, a special master is required to comply with Canon 6B(1) and is prohibited from soliciting or accepting political campaign contributions while serving as a special master. A special master who becomes a candidate for judicial office shall be subject to all of the provisions of Canon 7 that apply to judicial eandi-dates.[]

In making this comparison,'Appellant argues that because a judge has “no personal right to continue handling a case,” a special master is similarly so limited, and need not employ the services of private counsel to maintain his or her status in any particular ease. Appellant further submits the debt owed to the Irpino Law Firm “is not real” as there is no evidence that Special Master Williams has made any payment, and that, in any event, the firm’s representation was not “successful” because Special' Master Williams voluntarily withdrew from his role in that' regard on the issue of attorneys’ fees. Lastly, Appellant critiques the trial court’s judgment for its lack of statutory or jurisprudential support, suggesting that the trial court judge simply relied on the “unique circumstances” of the Billieson Litigation as justification for her ruling. Appellant further suggests the ruling lends support to his contention, that. Special Master Williams could have availed himself of the services of the Attorney General’s Office, as the ultimate award was reduced to an amount based upon the Attorney General’s hourly rate.

Special Master Williams, in response, also notes the complex procedural history of-this case, suggesting that the trial court properly exercised its discretion in ordering that the Irpino Law Firm attorneys’ fees be paid from the 17administrative expense fund for the Billieson Litigation. He equates Louisiana’s special master statute to that of Rule 53(g)(1) of the Federal Rules of Civil Procedure, which provides that “[b]efore or after judgment, the' court must fix the master’s compensation on the basis and terms stated in the appointing order, but the court may set a new basis and terms after giving notice and an opportunity to be heard.” Special Master Williams argues his service to the court as special master should not place him in a deficit, and that the ultimate determination of the issue is a matter of discretion vested with the trial court.

STANDARD OF REVIEW

Our analysis focuses on whether the relevant statute, La. R.S. 13:4165, permits a special master to recover attorneys’ fees related to rebutting a motion to disqualify. Such statutory interpretation is a question of law subject to de novo review. Orleans Par. Sch. Bd. v. State, Div. of Admin., Bd. of Supervisors, 14-0654 (La. App. 4 Cir. 1/7/15), 158 So.3d 846, 849. An erroneous application or interpretation of the law is not entitled to deference by a reviewing court. Id.

LAW AND ANALYSIS

Louisiana Revised Statute 13:4165 states in full:

A. Pursuant to the inherent judicial power of the court and upon its own motion and with the consent of all parties litigant, the court may enter an order appointing a special master in any civil action wherein complicated legal or factual issues are presented or wherein exceptional circumstances of the case warrant such appointment. The consent of the parties litigant may be contingent upon any of the following:
(1) An estimate of the amount of the compensation of the special master.
(2) The identity of the special master.
|r(3) The court’s anticipated specifications of the powers of the special master as defined by Subsection B of this Section.
B. The order appointing a special master may specify or limit the master’s powers. Subject to such specifications or limitations, the master has and shall exercise the power to regulate all proceedings before him and to do all acts and take all measures necessary or proper for the efficient performance of his duties.
C.(l) The court may order the master to prepare a report upon the matters submitted to him and, if in the course of his duties he is required to make findings of facts or conclusions of law, the order may further require that the master include in his report information with respect to such findings or conclusions.
(2) The report shall be filed with the clerk of court and notice of such filing shall be served upon all parties.
(3) Within ten days after being served with notice of the filing of the report, any party may file a written objection thereto. After a contradictory hearing, the court may adopt the report, modify it, reject it in whole or in part, receive further evidence, or recommit it with instructions. If no timely objection is filed, the court shall adopt the report as submitted, unless clearly erroneous.
D. The master’s compensation shall be reasonable, fixed by the court as limited by Subsection A of this Section, and taxed as costs of court.
E. Notwithstanding any other provision of law to the contrary, including Code of Evidence Article 706, the provisions of this Section shall provide the sole authority and procedure for the appointment, duties, powers, and compensation of a special master.

As an initial matter, this Court notes that the issue presented to this Court, to wit: whether or not the services and resulting fees of private counsel on behalf of a special master subject to a motion to disqualify constitutes “compensation” that may be “taxed as costs,” appears to be res nova in Louisiana. Outside of the jurisdiction in Louisiana, there exists a limited amount of jurisprudence on the issue presented.

As Appellant correctly notes, the aforementioned statute is silent with regard to the award of attorneys’ fees incurred by a special master in defending his or her | position in the face of a motion to disqualify. This Court has held that in the absence of statutory or contractual authorization for attorneys’ fees, such fees are not allowed. Dixie Servs., L.L.C. v. R & B Falcon Drilling USA, Inc., 05-1212, p. 9 (La.App. 4 Cir. 3/21/07), 955 So.2d 214, 220-21. While we agree with Appellee that an award of attorneys’ fees is a matter of discretion vested with the trial court, such discretion may only be exercised after a determination is made that the fees are in fact authorized. See id. The trial court made no such , finding in this case, apparently instead relying on the fact that the Billieson Litigation “has not been anything near normal.”

To the extent one might suggest there exists a “contractual” authorization to pay attorneys’ fees, we are not convinced. The statute speaks to “compensation,” which is defined as “[rjemuneration and other benefits received in return for services rendered.” Black’s Law Dictionary (10th ed. 2014). Thus, we find that the statute contemplates compensation for the special master’s services rendered to the court—that is, for the labor and expenses necessarily incurred by the special master in fulfilling the obligations for which he or she was appointed. Such does not include the costs associated with hiring private counsel to rebut a motion to disqualify. We apply the same reasoning to that portion of the order appointing Special Master Williams allowing for compensation to attorneys who “assist” him. There is no support for the contention that this clause was intended to cover private attorneys’ fees related to a motion to disqualify. Indeed, we read this clause to similarly cover only compensation for work performed in assisting the special master in discharging his duties as ordered by the court.

As noted, there is scant jurisprudential guidance on this issue. Indeed, our research indicates that no Louisiana appellate court has addressed this specific h nissue. However, the Supreme Court of Oklahoma addressed a similar issue in Hough v. Hough, 2004 OK 45, ¶¶ 13-14, 92 P.3d 695, 702-03, and reached a similar' result:

The general rule is “[ajppeal-related attorney fees are recoverable if statutory authority exists for their award in the trial court.” Casey v. Casey, 2002 OK 70, ¶ 26, 58 P.3d 763, 772 (footnotes omitted). This case presents a unique question concerning a non-party’s quest for appeal-related attorney’s fees. We are unaware of express statutory authority for the recovery of a special master’s attorney fees. However, statutory authority exists for the award of “compensation [to referees] for their services as the court may deem just and proper, which shall be taxed as part of the costs in the case.” 12 O.S. § 619 (emphasis added). Further, § 619 has been interpreted to apply to compensation of special masters. Oklahoma Oil & Gas Exploration Drilling Program v. W.M.A. Corp., 1994 OK CIV APP 11, 877 P.2d 605, 612.
In this case, the trial court ordered Husband to pay the fees and costs of special master and the COCA affirmed this-award pursuant to 12 O.S. § 619. While we agree "with the lower courts’ determination that special master was entitled to recover fees and costs as compensation for his services in accordance with § 619, we • disagree with the COCA’s characterization of § 619 as statutory authority for an attorney fees award. Since § 619 does not authorize an attorney fees award in the trial court, it follows that 12 O.S. § 619 is likewise an improper basis for special master’s recovery of appeal-related attorney fees.

Similarly, here, there is no statutory basis for Special Master Williams to recover attorneys’ fees associated with rebutting a motion to disqualify. Nor is there any support to consider such expenses as “compensation” for services rendered. Instead, Special Master Williams incurred those expenses in the interest of maintaining his status as special master in the Billieson Litigation. The court’s In order appointing Special Master Williams is silent as to this specific issue, and we decline to read specific compensation into the general language of the order.

We have also considered Appellee’s suggestion that this court should take guidance from Rule 53(g) of the Federal Rules of Civil Procedure (emphasis added):

(g) Compensation.
(1) Fixing Compensation. Before or after judgment, the court must fix the master’s compensation on the basis and terms stated in the appointing order, but the court may set a new. basis and terms after giving notice and an opportunity to be heard.
(2) Payment. The compensation must be paid either:
(A) by a party or parties; or
(B) from a fund or subject matter of the action within the court’s control. • '
(3)Allocating Payment. The court . must allocate payment among the parties after considering the nature and amount of the controversy, the parties’ means, and the extent to which any party is more responsible than other parties for the reference to a master. An interim allocation may be amended to reflect a decision on the merits.

First, we note that the Louisiana special master statute requires the consent of the parties, which in part may be “contingent” upon an estímate of the special master’s compensation. However, even putting that issue aside, to take guidance from-Rule 53 would in fact bolster-the position of Appellant, as it permits- compensation on- a new basis or -new terms, but only “after giving notice and an opportunity to be heard.” We read this Rule to be prospective in nature. That is, the realm of'compensable activities may be enlarged going forward, but they cannot be enlarged retroactively. Rule 53 does not support Appellee’s argument because there is no evidence that notice or an opportunity to be heard was provided prior to the. court’s ruling that granted. payment for attorneys’ fees already incurred in the instant matter. Instead, the parties simply proceeded to a hearing on a motion .for payment well over a year after the expenses had been incurred and. a bill submitted | iato Special Master Williams. Not only is there a lack of evidence that Special Master .Williams complied with the appointment order requiring co-special masters “jointly submit .... a monthly accounting of their billing and expenditures of cost[J” but he apparently failed to initially put the relevant parties on'notice of his retention of private counsel. The U.S. Court of Appeal for the Sixth Circuit, in Reed v. Cleveland Bd. of Ed., 607 F.2d 737, 748 (6th Cir. 1979), suggested a “better practice”:

Courts must never-lose sight of the fact that the fees in a case of this kind are paid from public funds. Every effort should be made to keep these expenses as low as is reasonably possible. Where appointment of masters and outside consultants is deemed necessary, the better practice is that followed by the district court in Amos v. Bd. of School Directors of the City of Milwaukee, 408 F.Supp. 765 (E.D.Wis.1976), Aff'd sub nom., Armstrong v. Brennan, 539 F.2d 625 (7th Cir. 1976), Remanded on other grounds, 433 U.S. 672, 97 S.Ct. 2907, 53 L.Ed.2d 1044 (1977). There Judge Reynolds set the fee of the special master ($50 per hour) at the time of his appointment and directed him to submit monthly vouchers. 408 F.Supp. at 824. When this procedure is followed 'the parties know the rate of compensation in advance and are aware of the actual costs of the reference as they accrue.

The original order appointing Special Master Williams did not discuss potential attorneys’ fees. It simply set the rate of his compensation and the nature of his obligations and duties as special master, and required monthly accounting. Thus, the order put the parties on notice regarding “the actual costs” of his services prior to their accrual, such that their consent was informed. To the extent Appellee would argue that the parties were on notice as of the first appearance of the Irpino Law Firm in court, there is no evidence that Special Master Williams thereafter put the parties on notice that he intended to seek payment of his attorneys’ fees from the parties once the Irpino Law Firm’s representation had concluded.

1 isWe are also persuaded by Appellant’s analogy between special masters and judges. The role of a special master -is quasi-judicial, and as noted, special masters are indeed subject to several of the canons of the Louisiana Code of Judicial Conduct. Much like a judge subject to a motion to recuse, a special master does not possess a “right” to remain on any particular case. A judge does not appear on her own behalf or with private counsel at a recusal hearing, because an impartial judge possesses no interest in overseeing a case. Indeed, if an interest exists, recusal may be warranted. La. C.C.P. art. 151. While allegations of improper conduct giving rise to a motion to recuse or disqualify may merit a response from a judge or special master for the record, it does not necessarily follow that private counsel may be retained and the expenses of protracted litigation on the issue passed on to the litigants.

We must clarify that analogizing a special master to a judge is not to be read as equating the two. Thus, we are not convinced by Appellant’s argument suggesting that Special Master Williams could have availed himself of the services of the Attorney General’s office, who is obligated to provide representation to parish court judges in matters of recusal. Louisiana Revised Statute 13:2564.3(A) provides, in relevant part:

It is hereby declared to be the public policy of this state that the state, through the attorney general, shall provide legal representation to a (parish court judge of this state in all claims, demands, or suits, if such claim, demand, or suit arises out of the discharge of his duties and is within the scope, of his office and such claim, demand, or suit did. not result from the intentional wrongful act or gross negligence of the parish court judge.

Relying, again, on the plain language of the statute, it appears special masters are not entitled to representation by the Attorney General’s office, despite a special | ^master’s obligations to adhere to certain canons under the Louisiana Code of Judicial Conduct.

At the federal level, there existed disagreement regarding whether the statute applicable to disqualification of judges, 28 U.S.C. § 455, applied to special masters, as it facially only applied to justices, judges, and/or magistrate judges. Guardian Pipeline, L.L.C. v. 950.80 Acres of Land, 525 F.3d 554, 556 (7th Cir. 2008). The Guardian decision noted that the debate was settled by the 2003 amendment of subsection (a)(2) to Rule 53 of the Federal Rules of Civil Procedure. Id. That subsection now provides:

(2) Disqualification. A master must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under 28 U.S.C. § 455, unless the parties, with the court’s approval, consent to the appointment after the master discloses any potential grounds for disqualification.

Since there is no comparable statute or rule setting forth the specific bases for disqualification of a special master in Louisiana, we look to the federal jurisprudence and its persuasive authority on this issue. The U.S. Court of Appeal for the Fifth Circuit has held:

Rule 53 requires that a special master “must not have a relationship to the parties, attorneys, action, or court that would require disqualification of a judge under 28 U.S.C. § 455, unless the parties, with the court’s approval, consent to the appointment after the master disclosed any potential grounds for disqualification.” Fed. R. Civ. P. 53(a)(2). “A motion to disqualify brought under 28 U.S.C. § 455 is ‘committed to the sound discretion of the district judge’ ” and is reviewed for abuse of discretion. Sensley[ v. Albritton ], 385 F.3d [591] at 598 [ (5th Cir. 2004) ] (citation omitted).

In re: Deepwater Horizon, 824 F.3d 571, 579-80 (5th Cir. 2016). Despite the lack of specific guidance in Louisiana regarding when disqualification of a special master is warranted or required, we agree that such a decision is a matter of discretion vested with the trial court. Thus, there can be no doubt that the ultimate Injudicial function rests with the trial court judge, and a special master cannot be fully equated with a judge. Therefore, La. R.S. 13:2564.3, a statute declaring a specific public policy as to parish court judges, does not necessarily permit a special master to avail him or herself of the benefits of representation by the Attorney General. Accordingly, we find that even to the extent the trial court sought to reduce the Irpino Law Firm’s rate to $175.00 per hour, the judgment was in error insofar as it relied upon the Attorney General’s fees rate.

Lastly, we note that this Court has not conducted a line-by-line analysis of the final summary bill documenting the services charged by the Irpino Law Firm to Special Master Williams. As noted, some charges post-date Special Master Williams’ dismissal from the attorney’s fee division determination portion of the order appointing him. While our ruling today would exclude payment for services rendered in rebutting the motion to disqualify, we do not intend to suggest our ruling excludes payment for assisting Special Master Williams with discharging his duties as ordered by the court, at a rate of $175.00 per hour, as contemplated by the order appointing Special Master Williams. However, the trial court will first have to make the determination that such funds exist in the administrative expense account.

CONCLUSION

In light of the foregoing, we find that the trial court erroneously interpreted La. R.S. 13:4165 and abused its discretion in granting Special Master Williams’ motion. The judgment of the trial court granting Special Master Williams’ motion for payment is reversed, and the matter remanded for further proceedings not inconsistent with this opinion.

REVERSED AND REMANDED

LOBRANO, J., CONCURS IN THE RESULT

      . Special Master Williams has not appealed that portion of the trial court's ruling denying the full amount of the Irpino Law Firm’s originally billed attorneys' fees.

      . Class counsel/Appellant Joseph Bruno was not among the class counsel fhat moved for Special Master Williams’ disqualification.

      . It should be noted that this particular subsection became effective on June 23, 2014-after Special Master Williams' appointment, but before his retention of the Irpino firm for . purposes of defending the motion to disqualify.

      . Appellee cites Carter v. Honorable Judges, Divisions A-E, G, & I of 14th Judicial Dist., 07-823 (La.App. 3 Cir. 12/19/07), 972 So.2d 457, suggesting we should analogize the administrative expense fund in the instant matter with the Judicial Expense Fund discussed in Carter. Appellee states the Carter court held that "payment of a judge’s legal expenses from the judicial expense fund was permitted.” However, the Third Circuit simply held that the judge seeking payment of attorneys’ fees inappropriately sought relief via writ of mandamus. Id. at 460.