author: J^LEON A. CANNIZZARO, JR., Judge.

text:
    Derrick REAUX v. DEEP SOUTH EQUIPMENT COMPANY and Hyster Company.
    No. 2002-CA-1571.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2003.
    Opinion Denying Rehearing March 31, 2003.

      William R. Mustian, III, Stanga & Mus-tian, P.L.C., Metairie, LA, for PlaintifVAp-pellant.
    Scott P. Yount, Pamela J. Lormand, Preston & Cowan, L.L.P., New Orleans, LA, for DefendanVAppellee.
    (Court composed of Judge JOAN BERNARD ARMSTRONG, Judge TERRI F. LOVE, and Judge LEON A. CANNIZZARO, JR.).
   J^LEON A. CANNIZZARO, JR., Judge.

This case involves an appeal by the plaintiff from the trial court’s judgment granting a motion for summary judgment. For the reasons that follow, the judgment is affirmed.

FACTS AND PROCEDURAL HISTORY

The plaintiff, Derrick Reaux, filed suit against Deep South Equipment Company (“Deep South”) and Hyster Company (“Hyster”) in connection with an accident that occurred in the course and scope of his employment. Mr. Reaux was employed by Dupuy Storage and Forwarding Company (“Dupuy”) when a lift truck driven by a co-worker backed up and hit Mr. Reaux, injuring his left foot and ankle. The lift truck was manufactured by Hy-ster, and it was leased to Dupuy by Deep South. The lift truck was not equipped with an audible reverse signal alarm, commonly called a backup alarm.

On September 3, 1999, Mr. Reaux filed suit against Deep South and Hyster on the grounds of negligence and strict liability. On January 11, 2002, Deep South filed a Motion for Summary Judgment, which was heard on May 17, 2002. A Partial Final Judgment granting Deep South’s Motion for Summary Judgment and | ¡.dismissing all of Mr. Reaux’s claims against Deep South with prejudice was signed that same date. On July 1, 2002, Mr. Reaux filed this appeal.

STANDARD OF REVIEW

In Pierre-Ancar v. Browne-McHardy Clinic, 2000-2409 (La.App. 4th Cir.1/16/02), 807 So.2d 344, writ denied, 2002-0509 (La.4/26/02), 814 So.2d 558, this Court discussed as follows the criteria to be used by an appellate court in reviewing a summary judgment:

Appellate courts review summary judgments de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, 99-2257 (La.2/29/00), 755 So.2d 226, 230. Summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. La. C.C.P. art. 966. Id. at 4-5 and at 347.

See also Randall v. Chalmette Medical Center, Inc., 2001-0871 (La.App. 4th Cir.5/22/02), 819 So.2d 1129.

DISCUSSION

In Ross v.Schwegmann Giant Super Markets, 1998-1036 (La.App. 1st Cir.5/14/99), 734 So.2d 910, the Court stated:

Because it is the applicable substantive law that determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Id. at 3 and at 912.

Mr. Reaux is alleging that Deep South is liable to him on the grounds of negligence and strict liability. Therefore, we must first consider whether the legal requirements for a finding of liability due to negligence or strict liability are present in the instant case.

laLiabilty for Negligence

In Posecai v. Wal-Mart Stores, Inc., 1999-1222 (La.11/30/99), 752 So.2d 762, the Louisiana Supreme Court articulated the analysis, which is a duty risk analysis, to be made in determining whether to impose liability for negligence.

In Posecai the court stated:

Under this analysis the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached. Syrie v. Schilhab, 96-1027, p. 4-5 (La.5/20/97), 693 So.2d 1173, 1176-77; Berry v. State, 93-2748, p. 4 (La.5/23/94), 637 So.2d 412, 414. Under the duty-risk analysis, all four inquiries must be affirmatively answered for plaintiff to recover. LeJeune v. Union Pacific R.R., 97-1843, p. 6 (La.4/14/98), 712 So.2d 491, 494. Id. at 4 and at 765-66.

Under the four prong test used in the duty risk analysis, this Court must determine whether all of the following questions can be answered in the affirmative:

(1) Can Mr. Reaux prove that Deep South’s failure to lease to Dupuy a lift truck with a backup alarm was the cause-in-fact of his damages?
(2) Did Deep South owe a duty of care to Mr. Reaux?
(3) Did Deep South breach any such duty?
(4) Did any duty breached by Deep South cause the type of harm ■ against which the duty was imposed to protect?

If any of the questions can be answered in the negative, then Mr. Reaux has failed to meet the four prongs of the test used in the duty risk analysis and cannot meet the required burden of proof for a finding of negligence.

We find that Deep South’s failure to lease to Dupuy a lift truck with a backup alarm was not the cause-in-fact of Mr. Reaux’s damages. Regulations Upromulgated by the Department of Occupational Safety and Health Administration (“OSHA”), 29 C.F.R. § 1926.60, provide in pertinent part as follows:

No employer shall use any motor vehicle equipment having an obstructed view to the rear unless:
(i) The vehicle has a reverse signal alarm audible above the surrounding noise level or:
(ii) The vehicle is backed up only when an observer signals that it is safe to do so. 29 C.F.R. § 1926.601(b)(4)

Dupuy was responsible for complying with the OSHA regulations. The regulations specifically address the responsibility of the employer, not the seller or other provider of a motor vehicle. In the instant case Dupuy had the option of complying with the regulations by leasing a lift truck with a backup alarm or by insuring that the lift truck was driven in reverse when the rear view was obstructed only when a third party observer signaled that it was safe to do so.

The fact that the lift truck did not have a backup alarm did not render it defective. The lift truck was not used properly in accordance with OSHA regulations. Had a third party observer monitored the lift truck when it was being driven in reverse at the time of the accident, the accident could likely have been avoided.

By using a lift truck without a backup alarm, Dupuy obligated itself to provide a third party observer whenever the lift truck was driven in reverse with an obstructed rear view. Dupuy did not do this when Mr. Reaux was injured by the lift truck. Deep South, which simply leased the lift truck to Dupuy, a lift truck that would comply with OSHA regulations if monitored by a third party observer when being driven in reverse with an obstructed rear view, was not the cause-in-faet of the accident. Deep South was a third party lessor that was not in control of the premises where the accident occurred or the manner in which the lift truck was used. Deep South did not cause the accident or the damages suffered by Mr. Reaux. | ¡¿Because we have determined that the actions of Deep South were not the cause-in-fact of the accident, we have answered one of the questions covered by the four prong test for determining negligence in the negative.

Because all four questions must be answered in the affirmative for a finding of negligence, we do not need to address the remaining three questions. We find that Deep South’s failure to lease to Dupuy a lift truck with a backup alarm was not the cause-in-fact of Mr. Reaux’s damages. Therefore, Deep South was not negligent under the duty risk analysis.

Strict Liability

In Louisiana strict liability for vices and defects in things is governed by the Louisiana Products Liability Act (“LPLA”), La. R.S. 9:2800.51-9:2800.60. The LPLA applies to manufacturers and to certain sellers of things. La. R.S. 9:2800.52 states in part:

This Chapter establishes the exclusive theories of liability for manufacturers for damage caused by their products. A claimant may not recover from a manufacturer for damage caused by a product on the basis of any theory of liability that is not set forth in this Chapter.

Pursuant to the LPLA, a manufacturer is defined to include a “seller of a product who exercises control over or influences a characteristic of the design, construction or quality of the product that causes damage”. La. R.S. 9:2800.53(l)(b). A “seller” is defined as “a person or entity who is not a manufacturer and who is in the business of conveying title to or possession of a product to another person or entity in exchange for anything of value”. La. R.S. 9:2800.53(2).

In Slaid v. Evergreen Indem., Ltd., 32,-363 (La.App.2d Cir.10/27/99), 745 So.2d 793, the Court stated:

A non-manufacturing seller who does not vouch for the product by holding it out as his own does not incur strict manufacturer’s liability under the LPLA, but is responsible for damages in tort “only if he |fiknew or should have known that the product sold was defective, and failed to declare it.” Id. at 6 and at 797.

In Jackson v. Sears Authorized Retail Dealer Store, 36,166 (La.App.2d Cir.6/12/02), 821 So.2d 590, the Court cited the Slaid case and stated that “the law is clear that a non-manufacturing seller of a defective product is not responsible for damages in tort absent a showing that he knew or should have known the product was defective and failed to declare it.” Id. at 4-5 and at 593.

Assuming that Deep South is a “seller” within the meaning of the LPLA, we find that Deep South is not liable under the LPLA. There is no evidence that the lift truck was defective in any way. Mr. Reaux alleges that the lack of a backup alarm on the lift truck rendered it defective, but we do not agree. Had Dupuy complied with the OSHA regulations by using a third party observer to monitor the lift truck being driven in reverse with an obstructed rear view when Mr. Reaux was injured, it is likely that the accident could have been avoided. It was Dupuy’s choice whether to lease a lift truck with a backup alarm or to provide a third party observer when the truck was being driven in reverse. The fact that the lift truck did not have a backup alarm did not render it defective.

La. Civil Code art. 2317 provides that “[w]e are responsible for that which is caused by ... the things which we have in our custody” and was a basis for the imposition of strict liability until La. Civil Code art. 2317.1 was enacted. Article 2317.1 modifies Article 2317 and imposes liability on the owner or custodian of a thing for damage “occasioned by its ruin, vice, or defect, only upon showing that he knew of the ruin, vice, or defect which caused the damage, that the damage could have been prevented by the exercise of reasonable care, and he had failed to |7exercise such reasonable care”. The strict liability provisions of Article 2317 are modified by the knowledge element introduced by Article 2317.1.

In Davis v. Diamond Shamrock Refining and Marketing Co., 34,309 (La.App.2d Cir.12/6/00), 774 So.2d 1076, the Court stated with regard to La. Civil Code article 2317.1:

By adding La. C.C. art. 2317.1, the legislature added the element of knowledge, abrogating the application of strict liability to damage caused by defects in things in a person’s custody. Both theories, however, require proof that the defendant had custody of the thing causing the injury; that it contained a defect, that is, a condition creating an unreasonable risk of harm; and that the defective condition caused plaintiffs injury. Id. at 7 and at 1080-81.

See also Conques v. Wal-Mart Stores, Inc., 2000-00619 (La.App. 3d Cir.2/14/01), 779 So.2d 1094, writ denied, 2001-0715 (La.4/20/01), 790 So.2d 643.

It is not disputed that Deep South did not have custody of the lift truck when it injured Mr. Reaux. Therefore, Deep South is not liable under La. Civil Code arts. 2317 and 2317.1.

CONCLUSION

We find that the material facts in this case are not in dispute. Both Mr. Reaux and Deep South agree that Deep South leased the lift truck that injured Mr. Reaux to Dupuy and that Deep South leased the lift truck without a backup alarm. We also find, based on the foregoing discussion, that Deep South is not liable to Mr. Reaux for either negligence or strict liability. Therefore, the trial court was correct in granting summary judgment in favor of Deep South, and the judgment of the trial court is affirmed.

AFFIRMED.

REHEARING DENIED

The appellant, Derrick Reaux, has applied for rehearing. The appellant argues that this court should have determined whether the fact that the lift truck that injured the appellant did not have a back up alarm was “a” cause, rather than “the” cause, of the accident that injured the appellant. The appellant also argues that this court found that only the actual custodian of a thing can be hable under Civil Code article 2317.1.

We find no error in our original opinion. We found that the failure of the lift truck to have a back up alarm was neither “a” cause nor “the” cause of the accident. We did not find that only the custodian of a thing can be liable under Civil Code article 2317.1. We found that under the facts of the instant case, the owner of the lift truck was not liable under article 2317.1.

      . A lift truck is similar to a forklift.

      . Hyster was not a party to the Motion for Summary Judgment.

      . We need not determine whether Deep South is a "seller” within the meaning of the LPFA, because we find that Deep South would have no liability under the LPLA even if it were a "seller”.


source: Caselaw Access Project

author: hMICHAEL E. KIRBY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Jarvis THOMAS, Carolin Patterson and Jazzie Clarkson.
    No. 2002-KA-1523.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 5, 2003.

      Harry F. Connick, District Attorney, Juliet Clark, Assistant District Attorney, New Orleans, LA, for PlaintifflAppellee.
    Laura Pavy, Louisiana Appellate Project, New Orleans, LA, for Defendant/Appellant (Jarvis Thomas).
    Karen G. Arena, Louisiana Appellate Project, River Ridge, LA, for Defendants/Appellants (Jazzie Clarkson and Ca-rolin Patterson).
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   hMICHAEL E. KIRBY, Judge.

STATEMENT OF CASE

These three defendants and a co-defendant, Larry Williams, were charged with possession of a stolen automobile having a value in excess of $500 on December 11, 2001. The defendants were arraigned and pled not guilty. Joseph Meyer was appointed to represent all four defendants. On January, 3, 2002, the four defendants withdrew their motions for a preliminary hearing. The trial court granted the motion of Larry Williams to sever his trial. On January 10, 2002, the two cases were tried to separate juries. These three defendants were found guilty as charged. Williams was also found guilty as charged. The court ordered pre-sentence investigations for all defendants.

On March 11, 2002, the trial court sentenced Jarvis Thomas to five years incarceration under the About Face Program in Orleans Parish Prison pursuant La. R.S. 15:574.5. The court granted Thomas’ motion for appeal.

On April 10, 2002, the trial court sentenced defendants Clarkson and Patterson to three years incarceration and suspended the sentences. The defendants were placed on five years active probation with special conditions. The court granted the defendants’ motions for appeal.

| STATEMENT OF FACT

On November 24, 2001, Sergeant Michael Glasser and his partner Officer William McDade were traveling on Conti Street approaching North Claiborne Avenue when they observed the vehicle being driven by Jazzie Clarkson skirt past several waiting automobiles by entering the oncoming traffic lane. The officers followed behind the car, checked the license plate number, and learned that it was not registered to the car they were following. Suspecting that the vehicle may have been stolen they initiated a stop with the assistance of another police unit being driven by Detective Patrick Evans.

After the vehicle was stopped, the occupants of the car were removed. As noted, Jazzie Clarkson had been driving the car, and Jarvis Thomas and Carolin Patterson had been seated in the rear of the vehicle. Sgt. Glasser stated that the steering column had been defeated and there was no key in the ignition. A screwdriver was recovered from the back seat of the vehicle.

Sgt. Glasser contacted the owner of the vehicle who was unaware that her car had been stolen. She believed that her car was still parked in front of her apartment. At trial, the victim related that she did not give any of the defendants permission to use her car.

Detective Evans related that the ignition switch had been wallowed out and that the little plastic piece that one would grab to turn the ignition switch had been broken off. A photograph of the ignition switch was introduced at trial.

Detective Jason Gagliano, who was assigned to the auto theft division of the Seventh District, testified that the ignition switch in the victim’s vehicle had been forced while still intact. He related that the switch is constructed from a weak metal which can be broken easily. Once forced, he stated, one can use practically |3any instrumentality, such as a butter knife, a screwdriver, or a small key, to turn the ignition and start the car.

Jazzie Clarkson testified in her own behalf. She stated that on the evening in question, she and Carolin Patterson were going to the Bayou Classic and were walking on Canal Street when they observed the car. Clarkson was familiar with Jarvis Thomas from her neighborhood. He was driving the vehicle. Clarkson was not familiar with Larry Williams before that evening. The girls were asked if they wanted to ride and they agreed. Clarkson was asked to drive the car. She explained that the boys wanted to watch the other girls walking on Canal Street so they asked if she would drive. Clarkson stated that moments later the car was stopped by the police. She stated that the car was running and the interior light did not come on when she got in.

Larry Williams testified that on the evening of the Bayou Classic he saw his cousin, Jarvis Thomas, while at a party at his aunt’s house. Williams left the residence and stole the car using a flat head screwdriver and some vice grips. He returned and picked up Jarvis Thomas and the two went to the two girls’ house (evidently referring to the two female defendants). He stated that he had not known them very long.

Williams stated that Jazzie Clarkson was driving the car that night. He stated that she wanted to drive and so he let her. He noted that the car was running when she got behind the wheel Williams testified that neither of the three defendants observed him starting the car during the evening and that he did not inform anyone that the car was stolen.

J¿ASSIGNMENT OF ERROR NUMBER 1 (Patterson & Clarkson)

Defendants Clarkson and Patterson contend the evidence was insufficient to support their convictions. In evaluating the sufficiency of evidence to support a conviction, an appellate court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Jacobs, 504 So.2d 817 (La.1987). When the conviction is based on circumstantial evidence, La. R.S. 15:438 provides that such evidence must exclude every reasonable hypothesis of innocence. State v. Langford, 483 So.2d 979, 983 (La.1986).

La.R.S. 14:69 provides, in pertinent part: Illegal possession of stolen things is the intentional possessing, procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses.

Neither defendant contends that the state failed to prove that the automobile had value or that it had been the subject of a theft. They contend, however, that the state failed to establish that they knew or had good reason to believe the automobile had been stolen. Patterson contends further that the state failed to establish that she possessed the automobile.

Jurisprudence from this court on the issue of the sufficiency of evidence establishing whether a defendant knew or should have the vehicle was stolen has varied under similar circumstances.

In State v. Wilson, 544 So.2d 1300 (La.App. 4 Cir.1989), the defendant was a passenger in a stolen vehicle. The cylinder door lock on the passenger side of the car had been pulled out and the steering column was broken on the left hand side | Kof the car. Pieces of broken plastic from the column and a screwdriver were on the floor of the car. The driver testified at Wilson’s trial that on the morning of the arrest, he had offered Wilson, an acquaintance of his, a ride to a shopping center. He stated that Wilson did not know that the car was stolen. He testified that when Wilson had asked him to whom the car belonged he told Wilson that the car belonged to a friend of his. He also testified that Wilson could not see that the steering column was broken from where he sat on the passenger side. This Court found that, notwithstanding this testimony, the facts that Wilson was a willing passenger in the car, that the steering column was broken and that the passenger door lock had been taken out were sufficient to prove that the he knew or should have known that the car was stolen.

This court relied on Wilson in affirming the conviction of the co-defendant in this case, Larry Williams, writing, “The defendant was sitting in the front seat where he could see that the steering column was defeated and no key was in the ignition.” State v. Wiliams, 2002-1100, p. 4, (La.App. 4 Cir. 9/04/02), 827 So.2d 671 (table).

In contrast to Wilson are two cases involving juveniles. In State In Interest of H.N., 97-0982 (La.App. 4 Cir. 7/8/98), 717 So.2d 666, three juvenile defendants were adjudicated delinquent on a charge of unauthorized use of a movable. The arresting officer had received a call of shots being fired from a red Mazda RX7 and, after observing the automobile, he gave chase. The pursuit ended when the car hit a curb and all four occupants fled on foot. The three juvenile defendants were apprehended but the driver escaped. When inspected, the car had no damage to the steering column, but the motor was running even though there was no key in the ignition.

IfiThe juveniles testified that when they entered the vehicle they saw nothing to indicate the car was stolen and that they panicked and fled the vehicle after the driver told them to run because the car was stolen. This court reversed the convictions finding that there was no evidence that the defendants took or used the vehicle with .the knowledge that it was stolen saying:

Here the defendants denied knowing that the Mazda was stolen when they accepted the ride. There was no evidence of forced entry. There was no broken glass in the interior of the vehicle or damage to the steering column. There was a key in the ignition when the defendants entered the car. [According to the juveniles testimony.] The defendants testified that they fled because they panicked.

Id. 97-0982, p. 4-5, 717 So.2d at 668.

In State In Interest of O.B., 559 So.2d 31 (La.App. 4 Cir.1990) the two juvenile defendants were adjudicated delinquent on a charge of unauthorized use of a movable. The suspect vehicle was pursued by the police at high speed until it crashed into a parked vehicle. Four males exited the car and fled in different directions. O.B. was arrested hiding in some hedges a few blocks away. There was conflicting testimony from the officers as to whether one of the juveniles (W.L.) was the driver. The steering column had been defeated on the left hand side and there was broken plastic on the floor. There was a key in the ignition but it was not a car key. The owner of the car testified that the broken pieces of the steering column on the floor by the driver’s seat would not have been visible by one seated in the front passenger seat or seated in the rear, nor would the broken steering column be visible except to the driver.

The defendants testified that they accepted a ride from an acquaintance and did not know the car was stolen until it was stopped by police and that they panicked and fled the scene when the police stopped vehicle.

7 With respect to defendant Clark-son, it is certainly arguable that as the driver she could have been aware that there was no key in the ignition. There was no evidence to indicate that she had ever started the car. It was dark and without having looked to ensure that there was a key in the ignition, there is no reason to presume that she was aware that there was no key in the ignition. However, the conflicting testimony offered by Clarkson and Larry Williams would be grounds for a reasonable juror to reject her testimony as self-serving. Furthermore, a reasonable trier of fact could have found the conflicting testimony “was suspicious and indicative of criminal knowledge and/or intent.” State v. Jefferson, 97-2949, p. 7 (La.App. 4 Cir. 4/21/99), 735 So.2d 769, 773. Accordingly, in light of the conflicting testimony, coupled with the fact that Clarkson was driving the car, we affirm the conviction of Clarkson.

As to defendant Patterson, as the rear seat passenger, there was nothing to indicate she should have had good reason to believe that the car was stolen. There were no broken windows, the door locks were intact, the steering column, although defeated, had only negligible damage, and there was no testimony that she could have seen that there was no key in the ignition. Quite simply, even viewing the case from a light most favorable to the prosecution, there was insufficient evidence to establish that Patterson knew or should have known that the car was stolen. Therefore, we reverse Patterson’s conviction.

ASSIGNMENT OF ERROR NUMBER 2

Defendant Thomas argues that he received ineffective assistance of counsel by virtue of a conflict of interest inherent in his counsel’s representation. Representation of more than one defendant by the same attorney does not violate | «federal or state constitutional rights to adequate legal assistance unless such representation gives rise to a conflict of interest. State v. Kahey, 436 So.2d 475, 484 (La.1983). When there has been ho objection to the multiple representation prior to or during trial, as here, the defendant must show that an actual conflict of interest adversely affected his attorney’s performance in order to establish a claim of ineffective assistance of counsel. Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980); State v. Lobato, 603 So.2d 739 (La.1992). That is, the defendant must prove both an actual conflict of interest and prejudice. State v. Montegut, 618 So.2d 883, 888 (La.App. 4 Cir.1993). An actual conflict exists if the defense attorney owes duties to a party whose interests are adverse to those of the defendant. The interests of the other party and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client. State v. Causey, 98-1946, p. 5 (La.App. 4 Cir. 1/26/00), 752 So.2d 287, 291.

Defendant argues that his interests and that of Jazzie Clarkson were adverse. Specifically, defendant avers that Clark-son’s testimony was against his interests as she testified that he had been operating the vehicle. It is apparent that defense counsel owed different allegiances to his two clients under the present circumstances. Clarkson, who was behind the wheel when the car was stopped, could only benefit by testifying that she had assumed control of the vehicle from Thomas while it was still running. However, in doing so, she also provided the jury a much stronger basis to conclude that Thomas either knew or should have known that the car was stolen. Without Clark-son’s testimony, the state’s case would have demonstrated only that Thomas was a rear passenger. The action of eliciting Clarkson’s testimony was clearly detrimental to Thomas.

9 The state contends that defendant’s claim would be properly considered in an application for post-conviction relief. However, where the record on appeal discloses sufficient evidence upon which to make a determination, a decision on the issue may be made in the interest of judicial economy. State v. Seiss, 428 So.2d 444 (La.1983). In State v. Lobato, 603 So.2d 739 (La.1992) the Louisiana Supreme Court conditionally affirmed the defendant’s conviction and remanded the case for an evidentiary hearing on the issue of whether defendant was prejudiced by his counsel’s dual representation. The defendant’s co-conspirator in a drug smuggling operation was also represented by the same attorney. The issue to be considered on remand was whether the attorney’s dual representation prevented him from calling the co-conspirator at the defendant’s trial. Here, unlike Lobato, the co-defendant did testify, and it is this testimony which supports the determination that Thomas was prejudiced. Accordingly, there is no evidence to be developed in a remand. Therefore, we reverse Thomas’s conviction.

CONCLUSION

We find the record evidence sufficient to affirm defendant Clarkson’s sentence and conviction. We vacate the remaining defendants’ sentences and convictions.

AFFIRMED IN PART; REVERSED IN PART.


author: I MAMES F. McKAY III, Judge.

text:
    WAGNER AND BAGOT, Attorneys at Law v. Harvey G. GLEASON.
    No. 2002-CA-1503.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Rehearing Denied March 31, 2003.

      William C. Gambel, Milling Benson Woodward L.L.P., New Orleans, LA, and James A. Cobb, Jr., John F. Emmett, Emmett, Cobb, Waits & Kessenich, New Orleans, LA, for Plaintiff/Appellant.
    Mitchell J. Hoffman, Stanley D. Broome, Lowe, Stein, Hoffman, Allweiss & Hauver, L.L.P., New Orleans, LA, for Defen-dani/Appellee.
    (Court composed of Judge CHARLES R. JONES, Judge JAMES F. McKAY III, Judge MICHAEL E. KIRBY).
   I MAMES F. McKAY III, Judge.

In April of 1986, Thomas J. Wagner and Michael Bagot, Jr., left the law firm of Phelps Dunbar to start their own firm, Wagner & Bagot. Chris Martin, who had also been employed at Phelps Dunbar, joined the firm as an associate. In 1988, Mr. Martin was made a partner. In March of 1989, Messrs. Wagner, Bagot and Martin executed a partnership agreement. The partnership agreement set up a tiered compensation scheme under which each partner would receive a guaranteed draw as well as their assigned percentage of “first and second tier” profits. The partnership agreement also established a mechanism for the admission of new partners; Article XI provided that upon admission of a new partner, “a revised agreement supplementary to and amendatory of this Agreement ... shall be executed.” Article XII set forth procedures for the withdrawal of a partner; it specified that within sixty (60) days of withdrawal, the withdrawing partner would be paid the amount of his capital account as of the date of withdrawal plus any amount contributed by the partner upon his admission.

In 1991, Harvey G. Gleason, a partner at the law firm of Chaffe McCall, entered into discussions with Mr. Wagner about the possibility of joining the firm of Wagner & Bagot. Mr. Gleason and Wagner & Bagot entered into an employment agreement under which Mr. Gleason came to work for the firm on a contract basis for a period of six months. The agreement contemplated that at the end of its term Mr. Gleason would either be offered a partnership interest in the firm or the parties would go their separate ways. In the spring of 1992, Mr. Gleason was offered a partnership interest in the firm. During this time frame, Mr. Martin announced his intention to withdraw from the firm and pursue a career as a full-time mediator.

All the parties agree that Mr. Gleason was offered and accepted a 33% partnership interest in the firm. However, the parties disagree as to whether Mr. Gleason agreed to limit the value of his percentage in the firm to $10,000.00 should he withdraw from the firm. Messrs. Wagner and Bagot, on behalf of the firm, contend that a June 16, 1992 memorandum memorialized an overall partnership agreement reached between them and Mr. Gleason. Mr. Gleason contends that the June 16, 1992 memorandum only confirmed some agreements and was an invitation to discuss certain other unresolved issues. In any event, no new partnership agreement, similar to the old partnership agreement which had |sbeen entered into by Messrs. Wagner, Bagot and Martin, was ever prepared or signed by Messrs. Wagner, Ba-got and Gleason.

On May 14, 1997, Mr. Wagner informed Mr. Gleason by memorandum that the arrangement had not worked out and that “it was time to break up.” On July 14, 1997 Wagner & Bagot filed suit against Mr. Gleason seeking, among other things, a declaratory judgment that Mr. Gleason was only entitled to the stipulated sum of $10,000.00 or such other amount allowed by law. On August 13, 1997 Mr. Gleason filed Ms exceptions, answer, reconventional and third party demand in which he sought, inter alia, a liquidation of the law firm. On September 5, 1997, the parties entered into a compromise of all of their differences with the exception of the issue of the value of Mr. Gleason’s interest in the firm. A bench trial was held on November 20, 24, 26 and 27, 1998. On December 19, 2001, the trial court rendered its judgment along with reasons for judgment holding that no written or oral agreement between the parties to limit Mr. Gleason’s equity percentage in the firm upon withdrawal existed. The trial court then applied the default provisions concerning partnership found in the Louisiana Civil Code and ordered the firm to pay Mr. Gleason the fair market value ($228,511.00) of his equity interest at the time of his withdrawal from the firm on August 31, 1997. The judgment and ^reasons for judgment were actually the proposed judgment and reasons for judgment submitted by counsel for Mr. Gleason. It is from this judgment that Messrs. Wagner and Ba-got appeal.

On appeal, Wagner & Bagot raise the following mne assignments of error: 1) the district court erred in failing to recognize that if Mr. Gleason’s acceptance did not conform to the offer of partnership made to him by Messrs. Wagner and Bagot, including the $10,000.00 stipulated sum withdrawal provision, he in effect made a counteroffer which was never accepted and therefore he never acquired an equity interest in the law firm; 2) the district court erred in failing to find that Mr. Gleason tacitly agreed, by his silence over a five year period, to accept a stipulated sum upon his withdrawal or expulsion from the law firm of Wagner, Bagot & Gleason; 3) the district court erred by failing to find that Mr. Gleason was estopped to argue that he did not accept the proposal made to him at the time of his admission to the law firm to accept a stipulated sum upon withdrawal from the firm; 4) the district court erred by failing to find that Mr. Gleason was bound by the withdrawal provisions of an existing partnership agreement he did not sign but which his conduct, testimony, and pleadings undeniably indicate that he believed governed his legal relationship with the firm, and which provided that it would apply to all partners; 5) the district court erred in relying upon article 1947 of the Civil Code; whether the agreement was reduced to writing is immaterial if Mr. Gleason intended to be bound, and if he did not intend to be bound until there was a writing, there was no agreement; 6) if, as the district court found, the valuation | .^provisions of the Louisiana Civil Code applied by default, the verbal agreement between Messrs. Wagner, Bagot and Gleason of necessity created a new legal entity, and therefore, the district court erred in failing to deduct the. value of the predecessor firm in valuing Mr. Gleason’s interest; 7) the district court erred as a matter of law in failing to apply a minority interest discount when valuing Mr. Gleason’s interest; 8) the result reached below is unjust and manifestly erroneous since it awards Mr. Gleason, who contributed no capital upon his admission to the firm, a windfall of over $228,000.00 for his interest where the overall value only increased by $88,000.00 during his tenure; and 9) the district court erred by imposing the burden of proof on Wagner & Bagot. However, the only issues before this Court are whether the trial court erred in finding that there was no agreement between the parties to limit Mr. Gleason to a stipulated value if he withdrew from the firm and whether the trial court erred in ruling that Mr. Gleason was entitled to the value of his percentage share of the partnership as of the date of his withdrawal.

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 a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even if the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989). Even if a case is decided upon a cold record, it is still subject to the manifest error standard. Haile v. City of | Monroe, 31,315 (La.App. 2 Cir. 12/14/98), 722 So.2d 1192. When reasons are provided, a reviewing court must be assured that the thinking process was that of the judge and not an advocate in the lawsuit. Miller v. Smith, 391 So.2d 1263, 1265 (La.App. 1 Cir.1980). Those reasons not supported by evidence in the record are viewed with a “jaundiced eye.” State, DOTH v. August Christina & Bros., Inc., 97-244 (La.App. 5 Cir. 2/11/98), 716 So.2d 372.

Louisiana Civil Code Article 1927 declares that an acceptance may be made “orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.” The partnership between Messrs. Wagner, Bagot and Gleason operated exactly as had the partnership between Messrs. Wagner, Bagot and Martin. Furthermore, the law provides that a change in the number or identity of the partners does not terminate a partnership unless the number is reduced to one. LSA-C.C. Art. 2829; See also Hawthorn, Waymouth & Carroll v. Johnson, 611 So.2d 645 (La.App. 1 Cir. 1992). It is apparent to this Court that the March 1989 partnership agreement between Messrs. Wagner, Bagot and Martin also controlled the relationship between Messrs. Wagner, Bagot and Gleason. On June 9, 1997, Mr. Gleason authored a memorandum to his partners invoking the provisions of the March 1989 partnership agreement. He wrote: “since I have dont (sic) nothing to invoke the provisions of expulsion [Article XX of the March, 1989 partnership agreement] under the partnership agreement, we need to discuss and agree on the amount to be paid to me.” In his “Exceptions, Answer and Reconven-tional and Third Party Demand” filed on August 18, 1997, Mr. Gleason 17alleged, at Article 56, that “it was assumed that the previous written partnership agreement between Messrs. Wagner, Bagot and Chris Martin would control.” It is interesting to note that on March 26, 1993, Messrs. Wagner, Bagot and Gleason executed a document entitled “Addendum to Partnership Agreement.” At trial, when the court asked Mr. Gleason “[c]an you do an addendum to an agreement that doesn’t exist?,” he responded: “[p]robably not.” Louisiana Civil Code Article 2053 mandates that contracts be interpreted “in light of the nature of the contract, equity, usages, the conduct of the parties before and after formation of the contract, and of other contracts of a like nature between the same parties.”

In the instant case, the trial court was clearly wrong to award Mr. Gleason $228,511.00 or what it deemed to be the fair market value of his equity interest in the firm at the time of his withdrawal. The trial court’s decision to award Mr. Gleason $228,511.00 for his interest in a firm that had only increased in value by $88,492.00 during his tenure there was also manifestly erroneous. The $10,000.00 withdrawal provision also does not apply. There is clear evidence in the record that the parties never agreed to this amount.

According to the March 1989 partnership agreement, when a partner withdraws he should receive the amount of his capital account and any contribution he made upon admission to the firm. At trial, Mr. Gleason’s expert testified that based upon the cash accounting method provided for in the March 1989 partnership agreement the value of Mr. Gleason’s capital account was $48,807.00; Messrs Wagner and Bagot now concede that this is an accurate | Rmeasure of Mr. Gleason’s capital account. At the time of Mr. Gleason’s admission as a partner, he was owed $31,342.99 under the previous employment contract. He waived this amount in order to become a partner. Therefore, this amount should be considered as a contribution made by Mr. Gleason upon his admission to the firm. Accordingly, upon Mr. Gleason’s withdrawal from the firm, he should have received the amount of his capital account ($48,-807.00) and any contribution he made upon admission to the firm ($31,342.99); this comes to a total of $80,149.99.

For the foregoing reasons, the judgment of the trial court is reversed and we render judgment as follows. We hold that Wagner & Bagot owe Harvey Gleason $80,149.99, plus interest on this amount at the legal rate from August 31, 1997 until paid and all costs of these proceedings as well as those below.

REVERSED AND RENDERED.

      . Mr. Gleason's compensation was set at 65% of the amount of fees collected in files brought to the firm by Mr. Gleason and over which he had primary responsibility plus 10% of all firm distributions of profit. This compensation scheme was subject to a guaranteed income of at least $6,000.00 per month.

      . Mr. Martin's withdrawal raised issues concerning the amounts he was to receive upon withdrawal under Article XII of the partnership agreement; a literal application of Article XII would have required him to pay monies to the firm upon withdrawal. However, it was agreed that he would accept $7,000.00, $1,000.00 more than he had contributed in capital.

      . On February 21, 1994, Mr. Wagner wrote a letter to accountant, Jane Dimitry, seeking certain advice regarding the firm’s partnership agreement. The letter states: "We have apparently not revised it since the time of Chris Martin’s departure nor have we included the addition of Harvey Gleason." The letter goes on to state: "we have discussed stipulating Harvey Gleason’s interest in the firm at a set value of $20,000 which would be the amount he would be paid should he withdraw from the firm at any point.”

      . The agreement provided that Wagner & Ba-got would pay Mr. Gleason $10,000.00 together with $3,750.00 per month for three months. The parties stipulated that these payments would be credited against any judgment rendered by the court.

      . The case was tried before Judge Ronald Sholes.

      . Before judgment was rendered in this matter, Judge Sholes resigned from the bench; the judgment was rendered by Judge Lloyd Medley.

      . Wagner & Bagot are entitled to a credit for those amounts already paid.


author: 11 EDWIN A. LOMBARD, Judge.

text:
    FRATERNAL ORDER OF POLICE CRESCENT CITY LODGE NO. 2, William Roth, William Patin, Ronald Kennedy, Ira Austin, Sr., John Graham and Patricia Childress v. The CITY OF NEW ORLEANS, The City Civil Service Commission of New Orleans, and the New Orleans Police Department.
    No. 2001-CA-0052.
    Court of Appeal of Louisiana, Fourth Circuit.
    Feb. 19, 2003.
    Rehearing Denied March 31, 2003.
    Claude A. Schlesinger, Sidney L. Shush-an, Guste, Barnett & Shushan, L.L.P., New Orleans, LA, and Keith Robert Credo, Pat M. Franz & Associates, LLC, Me-tairie, LA, for Plaintiff/Appellee.
    Annabelle H. Walker, Deputy City Attorney, Franz L. Zibilich, Chief Deputy City Attorney, Mavis S. Early, City Attorney, New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge PATRICIA RIVET MURRAY, Judge DENNIS R. BAGNERIS SR., Judge EDWIN A. LOMBARD).
   11 EDWIN A. LOMBARD, Judge.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, the Fraternal Order of Police, Crescent City Lodge No. 2 (“FOP”), filed an action in Civil District Court in 1980 against the City of New Orleans seeking to recover additional wages allegedly due since January 1, 1971 under Article 14, Section 25 of the Louisiana Constitution of 1921. Article 14 provided for the City of New Orleans to levy a separate property tax, the proceeds of which were to be used exclusively for the purpose of an increase in pay of the officers of both the New Orleans Fire and the New Orleans Police Departments.

Plaintiffs complain that the portion of the millage intended by constitutional amendment of 1928 to increase their pay, which millage the City collects under this provision, was paid to them in a lump sum annually until January 1, 1971. At that time, the City began to include the payment in the regular paycheck received by plaintiffs on a bi-weekly basis, effectively eliminating the increase in pay.

Plaintiffs assert that the voters of New Orleans, by constitutional amendment in 1928, voted to tax themselves additionally in order to provide an increase in pay to police and fire fighters. During the time period between the amendment and the change in 1971, the millage that was collected went directly to the police and fire 12fighters by means of the annual lump sum distribution. When the City changed the manner of paying that millage to the current method of distributing the funds every paycheck, the City also effectively reduced the salaries of the police and fire fighters because they are now being paid the same salary as other City employees in the same civil service classification, but a part of the fire fighters’ and police officers’ salaries are being paid out of the millage; specifically, $8.31 per paycheck comes from the millage, which releases that amount in the general fund for other uses. This practice means that the emergency responder professionals who, by constitutional amendment, are supposed to receive a pay increase out of the millage funds, are actually being paid on the same pay scale as the City desk — job employees. Thus, plaintiffs argue, the City is violating the constitutional provision by not paying them their regular salaries out of the general fund and then giving them their constitutionally-guaranteed increase in pay out of the special millage funds; i.e., payment of an additional $8.31 per paycheck from the millage.

Conversely, the City asserts that the method change in 1971 only showed a breakdown of the gross pay, which information had not been contained in the former pay stubs. The City also maintains that the plaintiffs have not proven that the new (current) method of payment reduced their salaries and it argues that it has not done so. Moreover, the plaintiffs are mistaken in their assertions that they are entitled to receive $8.31 more per paycheck than other City employees. The City refers to its accounting records, arguing that it has done nothing illegal and that the CPA who reviewed the records found them to be accurate.

The City admits, however, that the plaintiffs’ assertion about the CPA’s findings are in part correct. In its Reply Brief, the City states: “Mr. Howerton [the CPA] did make the statement that the year-end distribution of a lump sum amount ^constituted a “supplement” to their salaries, and the distribution in biweekly paychecks did not.” The City argues that the supreme court specifically authorized the bi-weekly payment method in Ziemer v. City of New Orleans, 195 La. 1054, 197 So. 754, 758 (1940). Additionally, the City defends its position by stating: “Mr. Howerton found no evidence that the City had reduced the existing police pay and substituted millage funds instead.”

Actions of the District Court

On December 21, 1998, plaintiffs filed a motion for partial summary judgment. The City also filed a motion for summary judgment. Arguments on the cross motions were heard on February 4, 2000. The district court denied the City’s motion for summary judgment and granted the plaintiffs’ motion for partial summary judgment. The court concluded that the City had improperly reduced the salaries of the class members by the improper use of the dedicated millage. The district court entered judgment against the City of New Orleans for $3,376,740.00, which represented the proceeds of the dedicated millage tax that was not paid to police officers exclusively as an increase in pay as provided for by Act 260 of 1928, amending Article 14, Section 25, Louisiana Constitution of 1921, for the years 1980 through 1994. The court reserved for a later determination the amount due for the years after 1994.

The district court entered judgment and notice of signing on April 27, 2000. On June 5, 2000, the City filed a motion to certify the judgment as a final judgment for purposes of immediate appeal pursuant to Louisiana Code of Civil Procedure art. 1915. The trial court signed the order designating the judgment as a final, ap-pealable judgment on June 20, 2000, however, the notice of signing the order |4was not issued until November 7, 2000. The City filed the instant appeal on November 8, 2000.

Plaintiffs filed a motion to dismiss the appeal as untimely. This court, by its April 8, 2002 Order, dismissed the appeal as untimely. The Louisiana Supreme Court granted the City’s writ application on November 8, 2002, reversed this court’s judgment dismissing the appeal, and reinstated the appeal.

ANALYSIS

An appellate court may not set aside a trial court’s finding of fact in the absence of manifest error or unless it is clearly wrong. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). In its Reasons, the trial court detailed certain findings of fact, most of which were uncontested, to which this court must give due deference. The legal rulings of the lower court are not afforded the same deference, but are included in the list as the trial court judgment set forth.

The court stated its findings as follows:

1. The sum of $8.31 that has been paid to police officers of the City of New Orleans as a part of their regular biweekly pay checks since the filing of suit in 1980, represents a part of the proceeds of the dedicated millage taxlsprovided for by Act 260 of 1928, amending Article XIV, Section 25, Louisiana Constitution of 1921.
2. From undisputed evidence submitted by the City, it appears that the police officers’ pay scale was integrated with the civil service pay scale of other city employees in the early 1970s prior to the filing of this suit.
3. According to the undisputed facts submitted by the FOP, the $8.31 included in each bi-weekly check forms a part of the regular (civil service) City of New Orleans base pay of each police officer instead of being paid exclusively as an increase in pay as directed by the constitutional amendment.
4. It further appears from the undisputed facts submitted by the FOP, that each police officer receives the identical base pay as other city employees in the same civil service pay range who do not receive the $8.31 from the dedicated millage tax.
5. According to the undisputed facts, the total amount of dedicated millage tax that has been used to pay police officers a portion of their regular civil service designated base pay is $3,376,740.00 for the years from 1980 through 1994.
6. As to the law, according to the Louisiana Supreme Court holding from this case in 1982: “It is highly unlikely that the Legislature and the voting citizens intended for the City, for example, to use the tax proceeds to give policemen and firemen cost of living increases in regular salary while using the general fund to provide a simultaneous increase to other City employees.”
|fi7. The Louisiana Supreme Court further held: “It is much more likely that the Legislature and the voters intended that an overall general increase (or decrease) in salaries for all City employees in a particular year would affect only the regular salaries payable out of the general fund and that the avails of the annual tax collections for each year would be used as a supplement to that base pay.”
8. The issue of laches is not before the court at this time because the Motion for Partial Summary Judgment filed by plaintiffs only appertains to the years since the filing of this law suit in 1980 through 1994.

In support of its position on appeal, FOP also cites Fraternal Order of Police Crescent City Lodge No. 2 v. City of New Orleans, 419 So.2d 929 (La.1982), wherein the court amended the. holding of both lower courts, which had dismissed plaintiffs’ petition for failure to state a cause of action and concluded that the constitutional amendment only provided for a one-time increase in pay for the police and fire fighters. In amending, the supreme court reasoned that although the method of payment did not necessarily have to be the prior annual lump sum method, but whatever method the City chose, it must use the millage tax to provide an increase in the pay of the police. Fraternal Order of Police Crescent City Lodge No. 2 v. City of New Orleans, 419 So.2d at 931. The court stated that the mere fact that the method of paying the police had changed did not necessarily mean that the salaries had been reduced: “The overall pay plan for policemen after |71971 may include the tax proceeds as a supplemental increase in regular salary over the amount which otherwise would be base pay.” Id. The court concluded, however, that insufficient facts were available in the plaintiffs’ petition to be able to decide the issue.

The plaintiffs contend that the above dicta and reasoning from the Louisiana Supreme Court put the defendants on notice in 1982 that it must pay the police officers’ regular salaries from the general fund and the increase in pay from the millage, or tax proceeds. The City admittedly still has not changed its practices.

The City, however, argues that there was no evidence presented that it reduced the pay of the police officers by its present method of paying them bi-weekly and including the millage tax $8.31 in the regular paycheck. We disagree.

By constitutional amendment, and statutory counterpart, the voters and the Legislature decided that the emergency responders — police and fire fighters — would be given an increase in pay over other City employees. To accomplish that goal, the citizens voted to tax themselves to provide the special millage funds for the contemplated pay raise. If that intention had been meant to be a one-time, or time-limited, pay increase, the voters would have stated as such. This fact has already been decided by the Louisiana Supreme Court. Fraternal Order of Police Crescent City Lodge No. 2 v. City of New Orleans, 419 So.2d 929 (La.1982).

Similarly, if the City were paying the officers the $8.31 as a supplement to their regular base pay, then simple logic indicates that the officers would be |smaking $8.31 more per paycheck than their counterpart City employees in the same civil service classification and pay range. The evidence, however, does not demonstrate this fact, but rather the opposite. The police are earning the same amount as other City employees in equivalent civil service classifications.

Much effort was made by the City to shift the focus of this analysis onto whether the funds were taken from the general fund or from somewhere else. The City invited the plaintiffs to show that the City has reduced the general fund and replaced it with millage money. The City argued that the controlling issue is “where does the money come from?” and suggested that the plaintiffs could only prevail if they establish with certainty that the millage funds replaced the money paid out of the general fund. We disagree.

The plaintiffs have shown, to the trial court and to this court, that the police officers are making the same amount as other City employees in the same civil service pay range. It is also admitted that the officers’ pay is comprised, in part, of the $8.31 millage funds and the remainder of the salary from the City’s general fund. Thus, the $8.31 millage used to pay each police officer frees up that amount in the general fund for the City to use elsewhere. Certainly, that result was not intended by the voters or the Legislature: the citizens would not have taxed themselves in order to give the City of New Orleans an undes-ignated slush fund. Rather, the millage tax proceeds have one purpose only: to provide an ongoing salary increase to police and fire fighters. We conclude that this purpose envisioned by the citizens has not been implemented by the City.

Moreover, the goal of providing the City’s emergency responders with additional compensation is sound public policy. Surely we want to encourage the |9hiring and retention of emergency workers who place their lives at risk for the safety of other citizens.

Accordingly, we affirm the detailed findings of the trial court and believe that the law cited by the trial court was correctly applied to the facts of this case. The millage funds, $8.31 per pay period, have constituted a portion of the officers’ salary, rather than a supplement, or increase to that regular salary. As such, the City owes the officers the $8.31 per paycheck for the period from the filing of this suit in 1980 to 1994, as ordered by the trial court. CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court.

AFFIRMED.

      . Plaintiffs argued that the judgment of April 27, 2000 was a final judgment; therefore the delays for motion for new trial and appeal began to run from that date (i.e., the notice of signing on April 27, 2000) and, therefore, the defendants' appeal was untimely. The City .contended that the judgment was interlocutory, therefore, not appealable until it was certified by the trial judge, in accordance with La. C.C.P. art. 1915B. The City maintained, additionally, that the mailing of the notice of signing was the triggering event for the delay period to commence for purposes of filing the appeal and, therefore, its appeal was timely filed.

      . The supreme court resolved the timeliness issue by first making the determination that because there was no statutory provision specifying when a motion to certify a partial judgment must be filed, it was error for this court to impose any time frame upon the defendants for the filing of their motion to certify. Secondly, the high court held that the delay for filing an appeal of a partial judgment begins on the day the notice of signing to certify is mailed. This court’s judgment was reversed and the defendants’ appeal was reinstated.

      . The procedural posture of the case when it was considered by the supreme court in the referenced case was the dismissal of the plaintiff’s petition on defendants’ exception of no cause of action, which judgment was affirmed by this court. Fraternal Order of Police Crescent City Lodge No. 2 v. City of New Orleans, 409 So.2d 411 (La.App. 4th Cir. 1982). This court, in 1982, reviewed only whether the plaintiffs’ petition stated a cause of action against the defendants and affirmed the trial court’s dismissal, concluding that the constitutional amendment providing for an increase in pay constituted merely a one-time increase.

      . The supreme court affirmed the trial court’s ruling that the petition failed to state a cause of action, but amended the judgment to give the plaintiffs thirty (30) days to attempt to remove the grounds of the defendants’ objection by filing a supplemental and amended petition alleging additional facts. Id. at 932.

      . We affirm the decision of the trial court regarding the issue of laches for the reasons specified by the trial court.