text:
    Wayne M. VALLIANT v. STATE of Louisiana, DEPT. OF TRANSPORTATION, et al. WESTBANK ELECTRIC, INC. v. STATE of Louisiana, DEPT. OF TRANSPORTATION, et al.
    Nos. 82 CA 0339, 82 CA 0340.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writs Granted Feb. 11, 1983.
    Roger Dallam, of Greenberg & Dallam, Gretna, for plaintiffs-appellees Wayne M. Valliant and Westbank Electric, Inc.
    Andrew I. Brown and Philip E. James, New Orleans, for defendant-appellant Balboa Ins. Co.
    James Frederick, Jr., Asst. Gen. Counsel, La. Dept, of Transp. and Development, Baton Rouge, for defendant-appellee State of La., Dept, of Transp. & Development.

      Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

The State of Louisiana entered into a public works contract on January 26, 1981, with Pegasus Industries, Inc., a general contractor, wherein Pegasus agreed to build a boat launching ramp and parking area at Louisiana Highway 652, near Raceland in LaFourche Parish. Pegasus contracted with Wayne M. Valliant, d/b/a Valliant Excavating, and Westbank Electric, Inc. (appellees), to rent certain movable equipment, namely backhoes and dozers, for use during construction of the project. As the surety for Pegasus, Balboa Insurance Company (Balboa) filed a statutory bond in accordance with La.R.S. 38:2241. Pegasus defaulted and Balboa was called upon to complete the construction. Although Pegasus used appellees’ backhoes and dozers on the project, their rental charges were never paid.

Appellees filed separate suits on September 9, 1981, against the same defendants, namely, the State of Louisiana, Department of Transportation and Development, Pegasus Industries, and Balboa Insurance Company (appellant). Appellees claimed that Balboa was liable for the rental charges under the statutory bond and pursuant to La.R.S. 38:2241, et seq. Balboa did not file an answer in either suit and appellees entered a preliminary default on December 10, 1981. On January 6, 1982, appellees confirmed these preliminary defaults, and judgments were signed awarding Valliant $6,692.50 and Westbank Electric $6,692.50. An amended judgment was signed on January 14, 1982, reducing the award of West-bank Electric to $4,488.00. Thereafter, Balboa filed motions for new trials in both suits, which were denied. Balboa perfected this consolidated suspensive appeal.

The sole issue on appeal is whether Balboa may be held liable under its statutory bond and the Public Works Statute, La.R.S. 38:2241, et seq., for rental charges on movable equipment. The contractor’s bond which forms the basis of Balboa’s alleged obligation to appellees contains the following language:

“It is expressly understood and agreed by and between the parties to this Bond that the same is given in accordance with Louisiana Revised Statutes of 1950, Title 38, Chapter 10, Sections 2241 to 2248 inclusive.”

Balboa alleges that claims for rental of movable equipment are not covered by such a customary contractor’s bond, given in accordance with these statutory provisions. We agree.

Appellees maintain that under La.R.S. 38:2241 and 2242, lessors of movable equipment should enjoy a lien or privilege against the owner, the contractor, or the surety in a public works contract. La.R.S. 38:2241 mandates that the general contractor on a public work obtain a surety bond to cover payment for:

“... all work done, labor performed, or material or supplies furnished for the construction, alteration, or repair of any public works, or for transportation and delivery of such materials or supplies to the site of the job by a for hire carrier, or for furnishing materials or supplies for use in machines used in the construction, alteration, or repair of any public works.”

This statute does not grant a lien or privilege to lessors of movable equipment. Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941); Ville Platte Concrete v. Western Cas. & Sur., 399 So.2d 1320 (La.App. 3rd Cir.1981); Mayeaux v. Lamco, Inc., 180 So.2d 425 (La.App. 1st Cir.1965); Patent Scaffolding Co. v. Ross Corporation, 172 So.2d 364 (La.App. 4th Cir.1965), writ refused, 247 La. 870, 175 So.2d 108 (1965); Martinolich v. Albert, 143 So.2d 745 (La.App. 1st Cir.1962). The Third Circuit was faced with very similar facts and allegations in the recent case of Ville Platte, supra, and it stated:

“It is well settled that unless the items which compose the plaintiff’s claim form a component part of the completed structure or are consumed in the work, they are not lienable nor are they covered by the contractor’s bond given under the provisions of LSA-R.S. 38:2241. Further, it has been held under this rule that an amount claimed for rental of equipment is not covered by a bond given in accordance with LSA-R.S. 38:2241. Martinolich v. Albert, 143 So.2d 745 (La.App. 1 Cir.1962); Mayeaux v. Lamco, Inc., 180 So.2d 425 (La.App. 1 Cir.1965); Patent Scaffolding Company, Inc. v. Ross Corporation, 172 So.2d 364 (La.App. 4 Cir.1965); Louisiana Highway Commission v. McCain, 197 La. 359, 1 So.2d 545 (1941).” 399 So.2d at 1320

Further, La.R.S. 38:2242 specifically excludes lessors of movable equipment from its coverage. It provides liens to the following groups:

“Any person to whom money is due for doing work, performing labor, or furnishing materials or supplies for the construction, alteration or repair of any public works, or furnishing oil, gas, electricity, or other materials or supplies for use in machines used in the construction, alteration, or repair of any public works, excluding persons to whom money is due for the lease or rental of movable property, but including any architect or consulting engineer employed by the owner or his duly authorized agent or representative or engaged by the contractor or subcontractor in connection with the building of any public work, ...” [Emphasis ours]

Appellees also contend that La.R.S. 38:2247 provides them with a direct action against Balboa, as the surety, regardless of our determination that they are not entitled to a lien under La.R.S. 38:2241, 2242. La. R.S. 38:2247 provides:

“Nothing in this Part shall be construed to deprive any person or claimant within the terms of this Part of his right of action on the contractor’s bond ...”

This court addressed this issue in Mayeaux v. Lamco, supra, wherein we stated:

“However, there is nothing in 2247 to enlarge the class of persons entitled to coverage as set forth in 2242. The phrase in 2247 ‘any person or claimant within the terms of this Part’ can only refer back to the class of persons specified in 2242 from which plaintiff was specifically excluded. Therefore, plaintiff is not entitled to recover the rental of manned equipment either by lien against monies held by the governing authority or directly against the surety. Statutory bonds are required to be strictly construed in accord with the statutory provisions governing them. Long Bell Lumber Company v. S.D. Carr Const. Co., 172 La. 182, 133 So. 438; Terrebonne Lumber & Supply Co. v. Favret, La.App., 2 So.2d 256.”
180 So.2d at 428

Therefore, we find no support in the jurisprudence or the language of the statute which would permit appellees to recover. Accordingly, we reverse the decisions of the trial court, and appellees’ suits are dismissed as to Balboa. All costs are assessed to appellees.

REVERSED AND RENDERED.

      . Judgment was signed on January 6, 1982, awarding Westbank Electric $6,692.50. A motion to amend said judgment due to a typographical error was filed on January 11, 1981, wherein Westbank Electric requested that the court amend the judgment to correct the amount of the award to $4,488.00. The motion, was granted, resulting in the signed judgment of January 14, 1982.


source: Caselaw Access Project

author: EDWARDS, Judge.

license: Public Domain

text:
    Bonnie MORAN v. MONTGOMERY WARD & COMPANY, INC.
    No. 82-CA-0344.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      Henry L. Klein, New Orleans, for plaintiff-appellant Bonnie Moran.
    John B. Noland, Baton Rouge, for defendant-appellee Montgomery Ward and Co., Inc.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Plaintiff, Bonnie Moran, brought this action ex delicto to recover damages for injuries allegedly suffered when she slipped and fell in a department store owned by defendant, Montgomery Ward & Company, Inc. From a judgment entered on a jury verdict in favor of defendant, plaintiff appeals.

On June 16, 1978, at approximately 5:00 p.m., Bonnie Moran was shopping in the garden department of defendant’s store located in the Bon Marche Shopping Center in Baton Rouge. Moran was in that section of the department which featured plants displayed for sale when she slipped and fell, landing on her back. Moran was assisted to her feet by Michael Durham, a security investigator at defendant’s store. Plaintiff was treated at a local hospital emergency room and released. A myelogram conducted on July 14, 1978, revealed that plaintiff had a ruptured disc at the L-4, L-5 vertebral interspace. Plaintiff subsequently underwent surgery to have the ruptured disc removed.

Plaintiff filed suit against Montgomery Ward, alleging that her fall was caused by the presence of water on the floor. She alleged that defendant was negligent in allowing this dangerous condition to exist in its store. Plaintiff’s suit maintained that the ruptured disc later discovered in her back was caused by her June 16, 1978, mishap.

At plaintiff’s request, trial was conducted before a jury. Following trial, the jury returned a general verdict in favor of defendant. Plaintiff has appealed the judgment entered on that verdict.

On appeal, Moran contends that the jury erroneously found her guilty of contributory negligence. While the jury returned a general verdict, plaintiff asserts that the verdict amounts to a specific finding of contributory negligence because of certain questions which the jury posed to the trial judge during the course of its deliberations. After the conclusion of testimony, the trial judge gave his instructions to the jury and it retired to deliberate. About one hour later, the jury returned to the courtroom and requested clarification of the charge with respect to the standard of reasonable care. The trial judge gave the requested charge and the jury retired again. Approximately three and one-half hours later, the jury returned once more and the jury foreman indicated that it was probably unable to reach a verdict. The trial judge urged the jury to make one more attempt to reach a verdict and asked if there were any additional instructions which might help. The jury foreman asked the trial judge the following two questions:

“We would like to know what is the consequence if we find that the plaintiff has some contributing factors to the — of the incident?”
******
“We would like to know what would be the procedure from this point if we feel that the plaintiff and the defendant both were at fault?”

In response, the trial judge repeated his instructions on contributory negligence, telling the jury that it operates as a complete bar to recovery, and the jury again retired. It returned thirty-five minutes later and rendered a general verdict for defendant.

Plaintiff asserts that the jury’s verdict for defendant, coming as it did after the foreman’s questions about the consequence of fault on the part of the plaintiff, must be based on a finding of contributory negligence. She contends that such a finding is manifestly erroneous.

The defendant argues that no inference may be drawn from the questions posed by the jury foreman. It asserts that the verdict must be treated as any other general verdict and that to do otherwise would amount to a prohibited impeachment of the jury’s verdict by testimony of a juror. See, e.g., Lachney v. Jones, 373 So.2d 595 (La.App. 3d Cir.), cert. denied, 376 So.2d 959 (La.1979).

We find it unnecessary to determine whether consideration of the jury foreman’s questions constitute impeachment of the jury’s verdict. Assuming, arguendo, that those statements do indicate that the jury found defendant negligent and plaintiff contributorily negligent, we find no manifest error in the jury’s finding of contributory negligence.

Michael Durham, employed at the time as defendant’s security investigator, assisted Bonnie Moran after her fall. He testified that as a result of nightly watering by a sprinkler system, the floor remained wet around most of the area where the plants were located. Durham testified that the floor was in this condition at the time of plaintiffs fall. The area was so wet, Durham testified, “you could walk through it and the water would actually splash up.” According to Durham, “[i]t wouldn’t be difficult at all to tell that it’s wet.”

Bonnie Moran testified that she did not see any water on the floor. However, immediately after her fall she did notice that her clothes were wet where they had come into contact with the floor. According to Moran, she had just arrived at the plant display section of the garden department and was looking at the plants for sale when she fell. Moran testified that she had been in this section of defendant’s store “once or twice” before. Plaintiff admitted that she was aware of the necessity for watering the plants in the department, but stated that she took no precautions to see if there was any foreign material on the floor.

Two of defendant’s employees also testified at trial. According to Julius Darens-bourg, a store maintenance man, the sprinkler system was turned on nightly to water the plants. Darensbourg testified that there was never any water left standing on the floor when the store was cleaned each morning. James Bynog, manager of the garden department, also testified that the sprinklers were turned on during the night so that the water would drain off by the time the store opened the next morning. According to Bynog, there was no water on the floor in the area where plaintiff fell.

In a case such as this, contributory negligence is conduct which, under the circumstances, falls below the standard of the duty required of everyone to protect his own safety. Chauvin v. United States Fidelity & Guaranty Co., 223 So.2d 441 (La.App. 3d Cir.), cert. denied, 226 So.2d 921, 254 La. 790 (1969). Contributory negligence is a matter of fact to be determined in light of the circumstances of each case. Soileau v. South Cent. Bell Tel. Co., 406 So.2d 182 (La.1981); McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir.1978). Questions of fact are generally left to the jury and its findings should not be disturbed unless they are clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). After a thorough review of the record, we cannot say that the jury’s factual findings are clearly wrong.

There is ample evidence in the record to support a finding of contributory negligence. If, as plaintiff asserts, the jury did conclude that defendant was negligent, it must necessarily have accepted the testimony of Michael Durham, the only witness who actually saw water on the floor at the time of plaintiff’s mishap. Durham’s testimony was to the effect that the water was in puddles on the floor and that it was quite noticeable. However, plaintiff testified that she did not see any water prior to her fall. An accident report, prepared for defendant by Durham, indicates that the accident location was well lit by daylight and the store lighting system. Additionally, we note Durham’s testimony that there had been a problem with water on the floor for a long period of time and plaintiff’s testimony that she had been through the garden shop before. On the basis of this evidence the jury would not be manifestly erroneous in concluding that a reasonable individual should have noticed the accumulation of water on the floor and taken some precautions to avoid slipping.

Plaintiff relies upon Guidry v. Pizza Hut of Louisiana, Inc., 352 So.2d 355 (La.App. 4th Cir.1977), cert. denied, 353 So.2d 1045 (La.1978), which involved a slip and fall on a wet floor at a restaurant. In Guidry, in upholding a jury verdict for plaintiff, the court made the following observations:

“Defendants have failed to prove the lighting conditions and/or the vantage point from which plaintiff approached would have afforded a reasonable man the opportunity to be forewarned of the slippery condition had he been exercising ordinary care under the circumstances. Conversely, the evidence preponderates to the effect that the slippery floor was not apparent to plaintiff.” 352 So.2d at 356.

The factual situation here is readily distinguishable. The evidence establishes that the area of plaintiff’s fall was well lit. Additionally, plaintiff’s own witness, Durham, testified that the presence of water on the floor was readily apparent. The proof which was lacking in Guidry is present in the instant case.

For the foregoing reasons, the judgment of the district court is affirmed. All costs of these proceedings are to be paid by plaintiff-appellant.

AFFIRMED.


author: WATKINS, Judge.

text:
    Wayne P. BUNCH v. QUINN-L BATON ROUGE PARTNERSHIP, a Louisiana Partnership In Commendam, and Quinn-L Corporation, Lilly Belle Naverre Arcement, Henry C. Manning, Larry J. Talbot, Thomas R. Elkins, Midstate Sand & Gravel Co., Inc., and L.H. Bossier, Inc.
    No. 82 CA 0346.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writ Denied Feb. 11, 1983.

      R. Ryland Percy, III, Gonzales, for plaintiff-appellant Wayne P. Bunch.
    Roy L. Beard, Shreveport, for defendant-appellee Quinn-L Corp.
    Thomas R. Elkins, Russell L. Dornier, Baton Rouge, for defendants-appellees Quinn-L Baton Rouge Partnership, a Louisiana Partnership in Commendam, Lilly Belle Naverre Arcement, Henry C. Manning, Larry J. Talbot, Thomas R. Elkins, Mid-State Sand & Gravel Co., and L.H. Bossier, Inc.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   WATKINS, Judge.

This matter is before the court on an exception of no cause of action. The plaintiff, one of two general partners in Quinn-L Baton Rouge Partnership, a Louisiana in commendam partnership, is suing the partnership and all of the individual partners for dissolution, liquidation of the partnership assets and judgment in favor of the plaintiff in the amount owed him. By amended petition the plaintiff asks in the alternative that he be allowed to withdraw from the partnership and obtain a judgment in the amount owed plus an additional amount equal to the value of his partnership share at the time of his withdrawal, together with court costs. The trial court sustained the defendants’ exception of no cause of action. From this judgment, the plaintiff appeals. We reverse.

The plaintiff alleges the following facts in his petition. On December 30, 1975, the plaintiff and the defendants executed written Articles of Partnership, forming a Louisiana partnership in commendam, “Quinn-L Baton Rouge Partnership”. The partnership was entered into for the purpose of acquiring, constructing, owning and managing an apartment complex located in East Baton Rouge Parish. Pursuant to the partnership contract, the plaintiff was to fulfill certain obligations for which he would receive approximately $120,000. in payment from the defendants. Plaintiff alleges that, although the plaintiff complied fully with the terms imposed upon him, the defendants have refused to pay him.

Prior to this action for dissolution, the plaintiff filed suit to recover the fees allegedly owed him under the partnership agreement. That suit was dismissed upon an exception of no cause of action. The dismissal was based on the legal principle that a partner cannot be required to account to his other partners for a debt arising out of their relationship as partners until the partnership has been liquidated and there has been a final accounting for all partnership assets and liabilities and a final settlement of all partnership affairs. On appeal, this court affirmed the judgment of the trial court. Bunch v. Quinn-L Baton Rouge Partnership, (unpublished reports, docket nos. 12,524 and 12,617, May 1979), writ denied 375 So.2d 952 (La.1979).

The plaintiff then filed this action for dissolution, liquidation and accounting of the partnership, asking in the alternative that he be allowed to withdraw from the partnership.

Basically, the defendants contend in their exception of no cause of action that the partnership contract is the law between the parties and as such provides the exclusive grounds for termination, dissolution and liquidation of the partnership, and for withdrawal of the partners. The portion of the partnership contract pertinent to dissolution and liquidation is set forth in the defendants’ exception of no cause of action as follows:

“18.01. The Partnership shall be terminated upon the first to occur of the following:
(a)Upon thirty (30) days notice in writing to the Partnership by Partners then owing (sic) seventy-five (75%) per cent or more of the Partnership stock; or
(b) The sale of all or substantially all of the property of the Partnership; or
(c) The expiration of the term of the Partnership; or
(d) One year after payoff of the mortgage covering the property of Jefferson Oaks Apartments Partnership located in Baton Rouge, Louisiana, described here-inabove unless the General Partners refinance such mortgage and place another mortgage thereon within said one year period in which case termination shall occur one year after any subsequent mortgage shall be paid in full or can-celled; or
(e) The Partners in Commendam shall vote to terminate the Partnership as set out in Paragraph 16.02 hereinabove.”

Withdrawal of the partners is provided for as follows:

16.02—
“A General Partner may resign upon obtaining the unanimous written consent of all of the Partners in Commendam with the exception of Wayne P. Bunch who may withdraw as a General Partner without the consent of any Partner only in the event that, that one certain option dated December 31, 1975 in favor of Quinn-L Corporation to purchase all of the right, title and interest in the Partnership belonging to Wayne P. Bunch is exercised. Upon the removal, resignation, death, bankruptcy or legal incapacity of Quinn-L Corporation, or its successor Managing General General Partner, the Partnership shall terminate, unless owners of Seventy-five (75%) per cent of the Partnership stock, agree within ninety (90) days thereafter to continue the Partnership.... ”

The plaintiff does not contend that any of these requirements have been fulfilled. Rather, he asserts that the articles of the Louisiana Civil Code pertaining to dissolution or alternatively to withdrawal apply to his case. The trial court sustained the defendants’ exception of no cause of action, although we were not favored with written reasons.

At the time the defendant partnership was created, the existing law gave the plaintiff a legal right to dissolve the partnership. Former LSA-C.C. art. 2887 provided:

“Although the partnership may have been entered into for a limited time, one of the partners may, provided he has a just cause for the same, dissolve the partnership before the time, even where inconveniences might result for the partners, and although it might have been stipulated that the partners could not desist from the partnership before the stipulated time.”

Therefore, under the law prior to 1981, the plaintiff was entitled to a dissolution upon a showing of “just cause.” Clearly, this right, based on just cause, could not be waived in the partnership contract. The law in effect at the time the partnership was created gave the plaintiff a legal right to dissolve the partnership and by the language of the code article this right existed irrespective of its absence from the articles of partnership.

By Acts 1980, No. 150, effective January 1,1981, the legislature replaced article 2887 with article 2821, which now reads:

“If a partnership has been constituted for a term, a partner may withdraw without the consent of his partners prior to the expiration of the term provided he has just cause arising out of the failure of another partner to perform an obligation.”

LSA-C.C. art. 2821 no longer provides for dissolution upon a showing of just cause, but rather for withdrawal of one of the partners upon such a showing. We are of the opinion that this right to withdraw, also based on just cause, exists irrespective of its absence from the articles of partnership, just as did the right to dissolve the partnership.

The plaintiff has alleged in his petition that pursuant to the partnership contract, he was to fulfill certain obligations for which he would receive approximately $120,000. in payment from the defendants. The plaintiff alleges he complied fully with the terms imposed upon him and that the defendants have refused to pay him. This is a sufficient allegation of just cause to establish a cause of action.

The plaintiff has therefore stated a cause of action under either article, although only one may be applied.

Legislation which affects substantive rights may not be accorded retrospective application unless it contains language expressly indicative of legislative intent to make it retroactive, and then only when constitutional guarantees such as due process, vested rights and inviolability of contracts will not be adversely affected thereby. Pounds v. Schori, 377 So.2d 1195 (La.1979).

Section 1 of Acts 1980, No. 150 revises, amends, and reenacts Title XI of Book III of the Louisiana Civil Code of 1820 and enacts a new Title XI containing LSA-C.C. arts. 2801 to 2848. Section 4 of Act 150 as amended by Acts 1981, No. 795 provides:

“Section 4. The provisions of this Act shall apply to all partnerships, including those existing on the effective date of this Act; but no provision may be applied to divest already vested rights or to impair the obligations of contracts. Vested rights shall include by way of example, and not by way of limitation, the right to use a partnership name.”

This is a clear expression by the legislature that the provisions of this Act were intended to apply to partnerships existing on the effective date of the Act, provided vested rights are not divested nor obligations of contracts impaired. It does not appear that a retrospective application of art. 2821 would operate to impair any obligations of the partnership contract. On the contrary, art. 2821 strengthens and adds vitality to the partnership contract, for under art. 2821 rather than terminating the partnership entity entirely, a partner can now withdraw, and leave the partnership intact. Nor would'the application of art. 2821 to the case at hand divest anyone of vested rights. Application of art. 2821 would allow the partnership to continue, and would therefore reach a result apparently more favorable to the defendants than dissolution provided for under the old article.

The plaintiff is accorded the means under art. 2821 to ultimately obtain the judgment he desires. The plaintiff is seeking to recover the money allegedly owed him under the terms of the partnership contract. While it is true that he no longer has the right to dissolve the partnership, his motive for bringing the action for dissolution was to obtain a judgment against his partners, and a dissolution of the partnership was his only recourse.

An application of art. 2821 would not adversely affect the rights of the plaintiff, for upon withdrawal the plaintiff can pursue his claim against the partners as he could have done previously upon dissolution of the partnership. Therefore, the plaintiffs right to recover is not affected. We find that application of art. 2821 is appropriate in this case, where none of the parties’ rights would be adversely affected thereby, and the viability of the partnership contract would be protected.

For the foregoing reasons, the judgment of the trial court granting the defendants’ exception of no cause of action is hereby reversed. All costs of this appeal to be borne by the defendants.

REVERSED.


text:
    Nat SANTANGELO and Karen Santangelo v. CAPITOL HOME PLANNERS and Harry J. Guillory.
    No. 82-CA-0350.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Paula Cobb, Baton Rouge, for appellants (plaintiffs).
    William T. Adcock, Baton Rouge, for ap-pellees (defendants).
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

Mr. and Mrs. Santangelo, plaintiffs, sued Capitol Home Planners and its owner, Harry J. Guillory, for damages allegedly caused by faulty house plans drawn by Guillory. At the close of plaintiffs’ case, the lower court granted defendants’ motion for a directed verdict and dismissed plaintiffs’ suit for failure to prove damages.

On appeal, Santangelo urges the trial judge erred in excluding a bill from evidence as inadmissible hearsay. Additionally, appellants contend that the judge should have considered plaintiffs’ uneontradicted testimony as sufficient proof of damages. We affirm.

BACKGROUND FACTS

Plaintiffs hired Guillory, a house designer, to make certain modifications to a set of house plans which plaintiffs had purchased from a third party. During construction of the house under the modified plans, several discrepancies were discovered which necessitated the reconstruction of the utility room, patio railings, pantry door and flower planters. Plaintiffs sued Guillory, asserting that the discrepancies were caused by his alleged faulty modifications of their house plans.

HEARSAY EVIDENCE

Plaintiffs contend the trial judge erred in excluding from evidence a bill from Mr. Brewer, plaintiffs’ contractor. During his testimony, Mr. Santangelo attempted to read the bill into evidence, at which time defendants made an objection of hearsay evidence. Prior to this point, Mr. Santan-gelo had not testified he paid the bill or that it was incurred because of defendants’ alleged faulty house designs. The trial judge sustained the objection, ruling that admission of the bill into evidence would deny the defendants the right of cross-examining Brewer, who was not present at trial.

Hearsay evidence is a statement which is offered in evidence to prove the truth of a matter stated therein, but which is not made by the author as a witness before the court at the particular trial. Veal v. Hutchinson, 284 So.2d 60 (La.App. 4th Cir.), cert. denied, 286 So.2d 662 (La.1973). As stated by the court in Veal:

“The fundamental underlying reason for the rule excluding hearsay evidence is that a party is entitled to be confronted by an adverse witness and is entitled to cross examine him. If a statement made by a witness outside of the courtroom is admitted into evidence to prove the truth of the statement, the party is powerless to protect himself by cross-examination of that witness.” 284 So.2d at 61.

The bill offered by the plaintiffs clearly falls within the definition of hearsay and the rationale for excluding such evidence. We find no error by the trial judge in sustaining the objection.

PROOF OF DAMAGES

Plaintiffs additionally contend that the trial judge should have considered Mr. Santangelo’s uncontradicted testimony as sufficient proof of damages. The only evidence offered at trial pertaining to plaintiffs’ damages was the testimony of Mr. Santangelo as to amounts paid Mr. Brewer and others for the reconstruction work.

In a civil proceeding, the plaintiff has the burden of proving his case by a preponderance of the evidence. In granting defendants’ motion for directed verdict, the trial judge ruled the plaintiffs failed to carry their burden of proof in establishing damages. Our examination of the record reveals no error in the lower court’s conclusion. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

DECREE

Based on the foregoing reasons, we affirm the judgment of the lower court at plaintiffs’ costs.

AFFIRMED.


author: SHORTESS, Judge.

text:
    Rebecca Ann MARTIN v. COTTON’S PEST AID CONTROL OF BATON ROUGE, INC.
    No. 82 CA 0351.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Rebecca Ann Martin, pro se.
    William T. Adcock, Baton Rouge, for appellant.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

This case arises from an incident in which a television set owned by Rebecca Ann Martin (plaintiff) was taken from her apartment. Plaintiff filed suit alleging that Cotton’s Pest Aid Control of Baton Rouge, Inc. (defendant) was responsible for the loss of her television set. The trial court found that the loss suffered by plaintiff was caused by the negligence of an employee of defendant and awarded her $450.00.

On October 27, 1981, employees of defendant were assigned to spray the Westminster Club Apartments. Defendant maintained a contract with the owner of these apartments for pest control services. Plaintiff was the lessee of apartment No. 812. Upon returning home from work, she discovered that her apartment door was unlocked. After entering her apartment, she saw a card on the floor which indicated that her apartment had been serviced by defendant. She also found that her 19-inch color television set was missing. Plaintiff telephoned the apartment manager and learned that no maintenance work had been done on her apartment that day. She then called the police.

Defendant says that the trial judge erroneously (1) found that the negligence of an employee of defendant was the proximate cause of the loss of the television set, (2) found that plaintiff proved her damages, and (3) assisted the plaintiff in the prosecution of the action.

Before defendant can be adjudicated guilty of actionable negligence, a determination must be made that defendant’s conduct is a cause-in-fact of plaintiff’s harm. In addition, said conduct must constitute a breach of a legal duty imposed to protect the plaintiff against the particular risk of harm. Hill v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).

Plaintiff testified that she always locked her door when she left. In addition, Matthew Ross, III, and Charles Edwin Heard, Jr., employees of defendant who serviced the apartments on the day in question, testified that they would not have entered if the door had been unlocked. However, the evidence reveals that an employee of defendant did enter the apartment because a card was left, signifying that pesticide services were performed. Cheryl Gleaton, the apartment manager, testified that no maintenance work was done on the day of the theft. She also testified that the master keys did not work so she gave individual door keys to maintenance people as needed. She verified that her key control sheet showed that no keys had been checked out to her maintenance people for plaintiff’s apartment on the day in question. Ross testified that the apartments all had dead bolt locks. When plaintiff returned, the window was locked, and there was no evidence of forced entry. The trial judge found that the door was left unlocked after the apartment was serviced by defendant’s employees. This conclusion is not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The failure of defendant’s employee to lock the apartment upon leaving was a substantial factor in the theft of the television set.

In failing to lock the door, defendant’s employee breached the legal duty to act in such a manner that an unreasonable risk of harm is not created. The risk of theft is the very risk that is contemplated by the legal duty to lock the door. The trial judge correctly found that the loss suffered by plaintiff was occasioned by the negligence of defendant’s employee. Plaintiff has established actionable negligence on the part of defendant.

The burden of proof is on plaintiff to establish by competent evidence the extent of her damages. Cloney v. Travelers Insurance Company, 253 So.2d 83 (La.App. 1st Cir.1971), writ refused, 253 So.2d 212 (La.1971). The only evidence presented by plaintiff to support the amount of her loss was the testimony of her mother, Mrs. Bruce Martin. Plaintiffs mother testified that she and her husband had purchased the television set several years ago for $450.00. No evidence was introduced to indicate the actual value of the set immediately prior to the theft. Nevertheless, the trial judge awarded plaintiff $450.00. He stated:

“I think the Court would much rather have had more evidence in that regard but that’s the only evidence I’ve got before me and I have no reason to doubt the veracity and truthfulness of Mrs. Martin, Mrs. Bruce Martin, insofar as how much the t.v. cost them and how much it would cost to rectify the loss that’s been occasioned by Ms. Martin.”

Apparently, the trial judge treated this claim as one under the Small Claims Act, La.R.S. 13:5200-5211. The Small Claims Act provides that:

“The technical rules of evidence are relaxed, and all relevant evidence is admissible, including hearsay, provided the judge satisfies himself of its general reliability; and further provided that the judgment is founded upon competent evidence.”
La.R.S. 13:5203

The purpose of the Act is:

“... to provide an efficient and inexpensive forum with the objective of dispensing justice in a speedy manner; and generally to promote the confidence of the public in the overall judicial system by providing a forum for small claims.” La.R.S. 13:5200

However, this suit does not fall within the purview of the Small Claims Act because the defendant was not served with a citasion which gave it notice that the suit would be governed by the provisions of said act. La.R.S. 13:5204. Thus, the relaxed rules of evidence and procedure were not applicable.

Plaintiff, a choir teacher, was not represented by an attorney, but rather attempted to litigate this matter by herself. She attempted to obtain justice, but did not know the subtleties of the law. Although plaintiff failed to prove her damages, the interest of justice requires that we remand this case so that she can adequately prove the extent of her damages.

Although we note that the trial judge told plaintiff that she needed to call a witness to prove quantum and questioned plaintiff’s mother, we feel that his actions were innocuous.

“The court has the power to require that the proceedings shall be conducted with dignity and in an orderly and expeditious manner, and to control the proceedings at the trial, so that justice is done.”
La.C.C.P. art. 1631

The extent to which a trial judge may appropriately and reasonably interrogate witnesses is largely in the sound and una-bused discretion of the trial judge. Patin v. DeStevens, 415 So.2d 1011 (La.App. 4th Cir.1982), citing Texas Pacific-Missouri Pacific Term R. v. Welsh, 179 F.2d 880 (5th Cir.1950). In the instant case, the interrogation of the witness was necessary to the administration of justice in developing the truth.

We affirm the judgment of the trial court insofar as it found defendant liable for the loss of plaintiff’s television set. However, we remand the case for the sole purpose of allowing plaintiff ample opportunity to produce competent evidence as to the value of the television set. Although plaintiff has asked for additional damages on appeal, such damages cannot be awarded, because plaintiff failed to either file an independent appeal or timely answer the appeal. (La.C.C.P. art. 2133).

Costs of this appeal are taxed to appellant.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . Defendant asserts that the alleged negligent failure to lock the door can not be the legal cause of the loss, due to the fact that the intervening criminal act of the thief broke the causal chain. In some instances, an intervening criminal actor can cut off the causal chain. If said actor’s conduct is viewed as a superced-ing cause, the initial defendant is relieved of liability. In this case, however, the theft is merely an intervening cause and not a su-perceding cause. Defendant remains liable because the duty breached (the failure to lock the door) extends to the very risk suffered by plaintiff (theft). In Kraaz v. La Quinta Motor Inns, Inc., 410 So.2d 1048 (La.1982), the Louisiana Supreme Court held a negligent innkeeper liable for the loss occasioned by armed robbers.

      . The allegations of plaintiff’s petition imply that an employee of defendant may have stolen the television. However, plaintiff did not prove that one of defendant’s employees committed the theft. The trial judge stated that he was not concerned with the question of whether defendant’s employee actually stole the television. He only addressed the issue of whether or not the negligence of defendant caused the loss. We agree.

      . La.C.C.P. art. 2133 provides in part, “An ap-pellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later.”


text:
    In the Matter of the SUCCESSION OF Francis Leonce MARTIN.
    No. 82-CA-0357.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      David L. Dawson, Jr., Baton Rouge, for plaintiff-appellant Joseph I. Martin.
    Patrick W. Pendley, Plaquemine, for defendant-appellee Timothy Martin.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   EDWARDS, Judge.

This action was brought by Joseph Martin, executor of the succession of Francis Leonce Martin. Joseph Martin alleged in his petition that a certain tract of land was an asset of the community of acquets and gains which formerly existed between Francis Leonce Martin and his wife, Berdi-na Strange Martin. From a judgment recognizing the property to be the separate property of Mrs. Martin, Joseph Martin appeals.

The Martins were married on April 2, 1926. One child was born of this marriage, Francis William Martin. He died on December 29, 1964, succeeded by only one child, Timothy Martin. On September 24, 1934, Mrs. Martin was party to an act of sale with mortgage in which she obtained from Levis Bergeron the parcel of land in question. The property was purchased for $3,300.00. Mrs. Martin paid $2,500.00 in cash and executed 16 promissory notes in the amount of $50.00 each for the remainder. The act of sale recited that Mrs. Martin was investing her “separate paraphernal funds, separate and apart from those of her husband and of which she has the full and absolute control.” Mr. Martin was not a party to the act of sale.

Mr. Martin died in 1980. He left a will in which he made a number of specific bequests and named Joseph Martin as his residual legatee. A notary was appointed to conduct an inventory of the succession. The notary made note of Mrs. Martin’s purchase of the tract of land in question but did not include it in the inventory of Francis Martin’s succession.

Joseph Martin petitioned the district court for a rule nisi ordering Mrs. Martin, Timothy Martin and the notary to show cause why the property in question should not be included in the inventory as part of the community of acquets and gains formerly in existence between Francis and Berdina Martin. After conducting a hearing on the rule, the trial court rendered judgment recalling the rule nisi and declaring the tract of land to be the separate property of Berdina Martin. It is this judgment which Joseph Martin appeals.

Joseph Martin’s appeal raises two assignments of error:

“I. The Trial Court erred in determining that the evidence presented overcame the presumption that the property acquired during the existence of the marriage was community property.
“II. The Trial Court erred in permitting the use of and considering the deposition taken of Berdina Strange Martin.”

Because of our conclusion that the second assignment of error requires reversal, we pretermit discussion of the first.

Prior to the hearing on the rule, Berdina Martin’s deposition was taken. At trial, counsel for the appellees sought to introduce Mrs. Martin’s deposition in lieu of her live testimony, alleging that she was confined to a nursing home and physically unable to appear at trial. Appellant objected to the introduction of the deposition, noting that no evidence of Mrs. Martin’s unavailability had been presented and challenging her competency to testify. The trial judge refused to admit the deposition and set a later date for Mrs. Martin to appear and testify if her physician would allow her to do so.

Some time after the hearing on the rule, counsel for the appellees presented the district judge with a letter from Mrs. Martin’s personal physician, Dr. Trenton James. Dr. James’ letter indicated that Mrs. Martin was physically unable to leave her nursing home and travel to appear in court. Appel-lees had no opportunity to object to the reliance upon this written statement, but had objected at the hearing on the rule to the use of hearsay testimony to establish Mrs. Martin’s unavailability. In response to the letter, the trial judge admitted Mrs. Martin’s deposition into evidence and relied extensively upon it in his written reasons for judgment.

The letter from Dr. James was clearly inadmissible hearsay evidence. Bland v. Interstate Fire and Casualty Co., 311 So.2d 480 (La.App. 4th Cir.1975). Such hearsay evidence may not be used to establish the unavailability of a witness for trial and allow introduction of his deposition. McKinley v. Dalton, 355 So.2d 1033 (La.App. 4th Cir.1978); Bland v. Interstate Fire and Casualty Co., supra. Since there was no competent evidence admitted to establish Mrs. Martin’s inability to testify at trial, the trial court erred in admitting her deposition.

Under Louisiana law and jurisprudence, there is a presumption that property acquired during the course of a marriage is community property. LSA-C.C. art. 2340; Prince v. Hopson, 230 La. 575, 89 So.2d 128 (1956). Appellees bore the burden of proving that the tract of land in question was separate property. With the exclusion of Mrs. Martin’s deposition, they have failed to carry that burden of proof. Thus, the judgment of the district court must be reversed. This case will be remanded for purposes of allowing Berdina Martin to appear and testify or for appellees to invoke an evidentia-ry hearing on the issue of the admissibility of her deposition.

For the foregoing reasons, the judgment of the district court is reversed. This case is remanded for further proceedings consistent with this opinion. All costs of this appeal are assessed against appellees.

REVERSED AND REMANDED.


author: CARTER, Judge.

text:
    PELTO OIL COMPANY v. COLLECTOR OF REVENUE, State of Louisiana. The SOUTH COAST CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, Dept. of Revenue, State of Louisiana. EXCHANGE OIL AND GAS CORPORATION v. Joseph N. TRAIGLE, Collector of Revenue, Dept. of Revenue, State of Louisiana. CHEVRON OIL COMPANY v. Joseph N. TRAIGLE, Collector of Revenue, State of Louisiana.
    Nos. 82 CA 0365-82 CA 0368.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Writs Granted Feb. 23, 1983.

      Gordon 0. Ewin, Harry R. Holladay, and Peter R. Monrose, New Orleans, for plaintiffs-appellants The South Coast Corp. and Exchange Oil and Gas Corp.
    Thomas C. Keller, New Orleans, for plaintiff-appellant Pelto Oil Co.
    Charles A. Snyder and J. Grant Coleman, New Orleans, for plaintiff-appellant Chevron Oil Co.
    Trudy M. White, Dept, of Revenue & Taxation Baton Rouge, for defendant-ap-pellee Joseph N. Traigle, Collector of Revenue.
    Before LOTTINGER, COLE and CARTER, JJ.
   CARTER, Judge.

This is an appeal from a dismissal of plaintiffs’ suits for abandonment by the failure of the plaintiffs or defendant to take any steps in the prosecution (or defense) in the trial court for a period of five years. LSA-C.C.P. art. 561. We amend and affirm.

The primary issue to be decided is whether negotiations and correspondence between counsel for plaintiffs and counsel for defendant constitute a step in the prosecution or defense of these suits in the trial court within the five-year period required by Art. 561 of the Code of Civil Procedure, precluding dismissal of the suits..

On February 28,1974, each of the following oil companies, Chevron Oil Company, South Coast Corporation, Exchange Oil & Gas Corporation and Pelto Oil Company, paid to the Collector of Revenue for the State of Louisiana certain severance taxes under protest. On March 29, 1974, each of these companies filed a petition for recovery of Louisiana severance taxes paid under protest pursuant to the provisions set out in LSA-R.S. 47:1576 .

After the filing of answers and the completion of discovery, the parties commenced negotiations to attempt settlement of the matter. Numerous conferences, letters and telephone calls transpired between the parties in settlement efforts. Because of the exactness of the legal issues involved in the recovery of the severance taxes paid under protest, the plaintiff companies agreed that counsel for Chevron would act on behalf of all plaintiffs in the negotiations with the defendant.

When settlement negotiations were unsuccessful, the parties agreed to pursue a course of submitting the case to the trial court on a joint stipulation of facts and cross motions for summary judgment. Communications between the parties continued along these lines. The parties also agreed to consolidate the suits so that the matters could all be decided at one time.

On December 16, 1981, the parties filed into the records the joint stipulation of facts, cross motions for summary judgment, and motions to consolidate, but upon reviewing the record, the trial judge refused to sign the orders because in his opinion the matters had been abandoned. At a joint pretrial conference between all the parties, the trial judge invited the defendant to file motions to dismiss plaintiffs’ suits on grounds of abandonment.

On January 29, 1982, defendant filed motions to dismiss on grounds of abandonment in each of the refund suits, and on February 18, 1982, a rule to show cause why the plaintiffs’ claims should not be dismissed as abandoned was heard by Judge William H. Brown with regard to all of the cases. All of the cases had not been transferred to Judge Brown’s division, but he heard all suits by the consent of the other judges involved. On March 8, 1982, a judgment of dismissal was entered in each of the cases in favor of the defendant.

Article 561 of the Code of Civil Procedure provides in pertinent part:

“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.”

In Melancon v. Continental Casualty Company, 307 So.2d 308 (La.1975), the Supreme Court of Louisiana interpreted Article 561 as follows:

“By its clear and unambiguous wording, article 561 requires three things of the plaintiff: (1) that he take some ‘step’ in the prosecution of his lawsuit, (2) that he do so in the trial court, and (3) that he do so within five years of the last ‘step’ taken by either party.”

The term “steps in its prosecution,” as contained in LSA-C.C.P. art. 561, requires some formal action before the trial court intended to hasten the suit to judgment. This formal action before the trial court interrupts the five-year abandonment period and commences its running anew. Melancon v. Continental Casualty Company, supra; Am. Eagle, Inc. v. Emp. Liability Assur. Corp., 389 So.2d 1339 (La.App. 1st Cir.1980); DeClouet v. Kansas City Southern Railway Company, 176 So.2d 471 (La.App. 3d Cir.1965), writ refused, 248 La. 383, 178 So.2d 662 (La.1965).

Plaintiffs argue that they did not at any time intend to abandon their respective suits, but in fact carried on extensive negotiations with the defendant during the entire period. Although this argument is persuasive, LSA-C.C.P. art. 561 has been interpreted to require some formal action in the trial court, intended to hasten the suit to judgment, in order to interrupt the running of the five-year abandonment period. The ongoing negotiations in the instant case did not prevent counsel from taking some formal action in or before the trial court within the intent of LSA-C.C.P. art. 561 during the five year period. This they did not do and negotiations, correspondence, telephone communications, etc. are not “formal actions in the trial court” sufficient to interrupt the five year abandonment period. Melancon v. Continental Casualty Company, supra.

The next contention of plaintiffs is that defendant has waived any right to claim abandonment by joining in the joint stipulation of facts, cross motions for summary judgment, and motions to consolidate, all of which were filed after the expiration of the five-year period. The abandonment addressed in LSA-C.C.P. art. 561 takes place automatically after the passing of five years and is self-operative without any formal order by the trial court. Addressing this issue, this court in Succession of Overton, 422 So.2d 1356, stated:

“... Since the abandonment took place automatically after five years, the suit was then, and has been, subject to dismissal since that time.”

Since this abandonment takes place automatically, formal action by either party after the passing of this five-year period (even a subsequent trial on the merits) will not preclude a later plea of abandonment. Melancon v. Continental Casualty Company, supra; Succession of Overton, supra.

Two of these plaintiffs claim filings within the five-year period were “steps” in prosecution of the lawsuits “before the trial court” sufficient to interrupt the running of the abandonment period. The filing relied upon by South Coast Corp. and Exchange Oil and Gas Corp. were motions and orders to substitute counsel of record filed on July 29, 1980. This court has previously held that such a motion and order recognizes the authority of enrolled counsel to take “steps” toward prosecution of his client’s case, but the motion is not, within itself, such a “step” as contemplated by LSA-C.C.P. art. 561. State, Department of Highways v. Jackson, 211 So.2d 93 (La.App. 1st Cir.1968); McClure v. A. Wilbert's Sons Lumber & Shingle Co., 232 So.2d 879 (La.App. 1st Cir.1970).

Counsels for plaintiffs further contend that Am. Eagle, Inc. v. Emp. Liability Assur. Corp., supra, is supportive of their position that there was no intent to abandon and that the “steps” taken were sufficient to interrupt the five year period. Am. Eagle, Inc. is clearly distinguishable from the instant case. In Am. Eagle, Inc., a trial on the merits occurred on February 14-18, 1972. Subsequent thereto, the court reporter was unable to prepare the transcript, and on December 30,1976, the trial court issued an order for a post trial conference to be held on January 13, 1977. Apparently the transcript was completed in 1978, and on September 1,1978 another post trial conference was held. On July 16, 1979, the trial judge rendered his reasons for judgment.

This court held that the post trial conference called by the trial judge on December 30, 1976 (before the five year period had expired) was a “step in the prosecution or defense” which inured to the benefit of all of the parties. In finding that this post trial conference initiated by the trial judge was a “step in the prosecution or defense”, this court quoted Justice (then Judge) Lemmon in Kanuk v. Pohlmann, 338 So.2d 757 (La.App. 4th Cir.1977), writs denied, 341 So.2d 420 (La.1977), at 758 as follows:

“The purpose of the C.C.P. art. 561 is to dismiss actions which have been abandoned, and the article provides for dismissal of those cases in which a plaintiff’s inaction during a legislatively ordained period has clearly demonstrated his abandonment of the case. The article was not intended, however, to dismiss those cases in which a plaintiff has clearly demonstrated before the court during the prescribed period that he does not intend to abandon the action...” (Emphasis by the court)

Additionally, it was held that LSA-C.C.P. art. 561 does not apply where the failure to prosecute is caused by circumstances beyond the plaintiffs control. Clearly, the failure of the court reporter to file a transcript, with briefs to be filed after the preparation of the transcript, is beyond the control of either plaintiff or defendant.

The only filings in the instant case within the five year period are the motions and orders to substitute counsel of record filed by Exchange Oil and Gas Corporation and South Coast Corporation on July 2, 1980. We have previously noted that the jurisprudence is clear that such motions and orders are not “steps” in the prosecution of a case. State, Department of Highways v. Jackson, supra; McClure v. A. Wilbert’s Sons Lumber & Shingle Co., supra.

Further, the delay in the instant cases was clearly not caused by circumstances beyond the control of the plaintiffs, as opposed to the situation in Am. Eagle, Inc., supra.

According to the record, we herein list the last formal actions taken in the trial court within the intent of LSA-C.C.P. art. 561 in each of the cases prior to the filings on December 16, 1981, and the dates that the suits are decreed to have been automatically abandoned.

Chevron Oil Company v. Traigle, Collector of Revenue, State of Louisiana: Amended Answers to Interrogatories filed April 20, 1976. Suit abandoned on April 20, 1981.
Pelto Oil Company v. Traigle, Collector of Revenue, State of Louisiana: Answers to Interrogatories filed August 21, 1974. Suit abandoned on August 21, 1979.
The South Coast Corp. v. Traigle, Collector of Revenue, State of Louisiana: Answers to Interrogatories filed July 26, 1976. Suit abandoned on July 26, 1981.
Exchange Oil and Gas Corp. v. Traigle, Collector of Revenue, State of Louisiana: Answers to Interrogatories filed July 26, 1976. Suit abandoned on July 26, 1981.

For the above reasons, the judgment of the trial court is amended to set forth the date that each suit was abandoned. Further, the judgment is amended to decree the date of abandonment as the effective date of dismissal and as so amended is affirmed. All costs of appeal are to be paid by plaintiffs.

AMENDED AND AFFIRMED.

      . LSA-R.S. 47:1576 provides as follows:
      “A. A right of action is hereby created to afford a remedy at law for any person aggrieved by the prohibition of courts restraining the collection of tax, penalty, interest, or other charges imposed in this Subtitle. The person resisting the payment of any amount found due by the collector, or of enforcement of any provisions of this Subtitle, shall remit the amount found due to the collector and at that time shall give the collector notice of his intention to file suit for the recovery thereof. Upon receipt of this notice, the amount remitted shall be placed in an escrow account and held by the collector or his duly authorized representatives for a period of thirty days. If suit is filed within the thirty-day period for the recovery of such amount, the funds in the escrow account shall be further held pending the outcome of the suit. If the person prevails, the collector shall refund the amount to the claimant, with interest at the rate of six percent per annum covering the period from the date the funds were received by the collector to the date of refund.
      B.This Section shall afford a legal remedy and right of action in any state or federal court having jurisdiction of the parties and subject matter, for a full and complete adjudication of any and all questions arising in the enforcement of this Subtitle as to the legality of any tax accrued or accruing or the method of enforcement thereof. In such action, service of process upon the collector shall be sufficient service, and he shall be the sole necessary and proper party defendant in any such suit.
      C. This Section shall be construed to provide a legal remedy in the state or federal courts, by action at law, in case such taxes are claimed to be an unlawful burden upon interstate commerce, or the collection thereof, in violation of any Act of Congress or the United States Constitution, or the Constitution of the state of Louisiana, or in any case where jurisdiction is vested in any of the courts of the United States.
      D. Upon request of a person and proper showing by such person that the principle of law involved in an additional assessment is already pending before the courts for judicial determination, such person, upon agreement to abide by the decision of the courts, may remit the additional assessment under protest, but need not file an additional suit. In such cases the tax so paid under protest shall be placed in an escrow account and held by the collector until the question of law involved has been determined by the courts and shall then be disposed of as therein provided.”

      . On April 28, 1976 a motion and order for continuance of pretrial was filed into the record on the motion of both plaintiff and defendant. Such a filing is not considered a “step” in the prosecution or defense of the suit intended to hasten the case to judgment.


author: ELLIS, Judge:

text:
    Craig DICKEY v. Corinne Womack DICKEY.
    No. 82-CA-0410.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Patsy McDowell Cooper, Baton Rouge, and Alfred Zach Butterworth, St. Francis-ville, for plaintiff-appellant Craig Dickey.
    Sylvia Roberts, Baton Rouge, for defendant-appellee Corinne Womack Dickey.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is an appeal by Craig Dickey from a judgment transferring custody of his minor son, Bradley Dickey, to his former wife, Corrine Womack Dickey, now wife of William Bezdek.

Mr. Dickey was awarded custody of Bradley by judgment signed July 10, 1979. The judgment was appealed to this court. Dickey v. Dickey, 383 So.2d 808 (La.App. 1st Cir.1980). In affirming the award of custody to Mr. Dickey we said:

“A careful review of the record convinces us that the trial court made no manifest error in awarding custody.
“For two years, Mrs. Dickey has been engaged in adultery. She frequently left the family domicile at night, leaving her husband to care for Bradley. She has stated that she wishes to marry her lover — with whom she has been seen in public. She has fought with her husband, her daughter and her in-laws.
“Mr. Dickey has tried to provide a moral, healthy home for a ten-year-old boy. His parents assist him by providing a loving home where Bradley is always welcome to visit. Bradley’s education is fostered and encouraged both by Mr. Dickey and his parents. The child’s physical, mental and emotional needs are met and his surroundings are stable.
“It is noteworthy that William E. Bezdek, the paramour of Mrs. Dickey, is presently married. Under oath, he admitted not only wanting to break up his current marriage to marry Mrs. Dickey, but also that he had committed adultery with eight other partners.
“Mrs. Dickey’s acts, together with such a prospective stepfather, when contrasted with Bradley Dickey’s present environment, made the trial court’s custody award an easy determination with which we agree.”

This rule for change of custody was filed by Mrs. Bezdek on November 23, 1981, alleging the following changes in circumstance as a basis for the change:

“A. That plaintiff presently intends to enter into a second marriage, and plaintiff has stated to defendant and to several other persons in words or in substance that “... Bradley belongs with his mother, (defendant)”, rather than with his new family; defendant avers that it is in the best interest of the child that he live with her and she be granted permanent custody because of the impending marriage of plaintiff and for the reason that plaintiff is unable to discipline and direct the minor as effectively as defendant; plaintiff has conceded to defendant that her disciplinary skills and ability to provide proper care and a proper home are superior to his.
“B. Since the rendition of the Judgment awarding custody of the minor child to plaintiff, defendant has married, and has a wholesome environment in which the minor child can live and defendant’s spouse is very willing to have the minor child in the home.”

The testimony reveals that, since the original award of custody, both Bradley and his father have lived in the home of the paternal grandparents. Some time before the hearing on this rule, Mr. Bon Dickey, the grandfather, of whom Bradley was very fond, died, leaving Bradley, his father and his grandmother living together in her home. Most of Bradley’s day-to-day needs were taken care of by his grandmother. It further appears that Bradley spent a great deal of time during the year, and most of his summers at the home of his aunt and uncle in St. Francisville, Louisiana. Bradley testified that he wanted to move to St. Francisville and attend school there, while living in the home of his aunt and uncle. Bradley, who was twelve years old at the time of the hearing, testified that he wanted to remain in the custody of his father, .and did not want to live with his mother.

It appears from the record that Bradley has been well cared for during the time he has been in his father’s custody, but that most of the burden of caring for him has been carried by his grandmother and his aunt and uncle. Mr. Dickey testified that he had told his former wife, Mrs. Bezdek, that he was going to give custody of Bradley to her, but that he had changed his mind. He further stated that both Mr. and Mrs. Bezdek were nice people and that they had a good home. Other than the findings of the court in the original custody award, there is nothing to the contrary in this record. At the time of the hearing Mr. Dickey’s prospective marriage was no longer in prospect.

In ruling to change custody to Mrs. Bez-dek, the trial judge said:

“The custody of the minor child in question here has previously been awarded to the father. The mother is before the Court with no presumption of preference, the only preference being that which flows from the fact that the Court has heretofore awarded custody to the father and with all things being equal and stability for the child to be much desired and sought and maintained. The child now, a boy of twelve years, has sustained several experiences which no doubt have left scars from these emotionally traumatic experiences. First his father and mother separated, then divorced, and the home was broken. And he went then, after the custody having been granted to the father, he went to live principally with his grandmother and grandfather. That is his paternal grandparents. And his paternal grandfather, with whom he identified and for whom he had great love, died. Then he has sought to establish a relationship with his paternal aunt and her husband and at this time really does just about what he desires with reference to with whom he visits and from time to time stays. If he wants to go to St. Francisville where his paternal aunt and uncle live, he goes. Even though the custody was granted by the court to the father, the father has really not exercised the amount of custody or the kind of custody that is contemplated. The paternal grandmother has exercised considerable influence over him as has his paternal aunt and her husband, the Ramshurs of St. Francisville. All during this time, of course, the mother has maintained her visitation rights with the child and I don’t think there is any doubt that he does in fact love his mother also. I don’t think there is any doubt about that. What the father has done and what he contemplates doing is to extra-judicially establish a custody — a change of custody contrary to that which was awarded by the court. It is no secret that the boy is planning to go, perhaps the idea originates with him, and his father is certainly going to put it in effect this summer and fall, establish his schooling in St. Francis-ville. I do not believe that that is for the best interests of the child. The mother has a stable relationship, has a stable home for the child and custody is changed to the mother with visitation.”

In all custody cases, the best interest of the child is the primary consideration. Article 157, Civil Code. “Stability and continuity must be considered in determining what is in the best interests of the child.” Johnston v. McCullough, 410 So.2d 1105 (La.1982).

In this case, it is apparent that, although nominal custody rests with the father, he has not exercised the parental control contemplated by the law. The moral objections to the exercise of custody by the mother, which were recited in our first opinion in this case, quoted supra, have apparently been removed. She has married her erstwhile lover, and apparently now enjoys a stable and conventional lifestyle. Mr. Dickey admits that Mrs. Bezdek can provide a good home. Under the circumstances, we find no abuse of discretion on the part of the trial judge in finding that Mrs. Bezdek can provide a more stable and disciplined environment for Bradley and ordering a change of custody.

We find no merit to the specific assignments of error by Mr. Dickey. The preference of the child is only one consideration among many in determining what is in his best interest. In this case, as in any case, it is not determinative and we have found no abuse of discretion. Mr. Dickey also objected to the reception in evidence of tapes of telephone conversations between the parties, which were made by Mrs. Bezdek without the knowledge of Mr. Dickey. No specific authority is cited to support this position. We think the objection goes to the weight rather than to the admissibility of the evidence. In any event, the record amply supports the conclusion reached by the district judge, without consideration of the tapes.

The judgment appealed from is therefore affirmed. All costs shall be paid by Mr. Dickey.

AFFIRMED.


author: COLE, Judge.

text:
    Mary Sandra Guidry GRIFFIN v. Samuel Paul GRIFFIN, Jr.
    No. 82 CA 0560.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.

      C. Berwick Duval II, Houma, for plaintiff and appellant.
    William F. Bologna, New Orleans, for defendant and appellee.
    Before LOTTINGER, COLE and CARTER, JJ.
   COLE, Judge.

The issues in this custody case are whether or not the trial court erred in refusing to change the child custody from the mother to the father and in ruling the child cannot be taken out of the jurisdiction of the court without its permission.

The facts giving rise to this litigation are as follows. The parties were married in July of 1972 and a son, Samuel Paul Griffin, III (Sammy) was born in November of 1974. The couple separated in May of 1975 and the marriage was terminated by judgment of divorce rendered September 19, 1977. Permanent custody of the child was granted to the mother, Mary Griffin. Various rules were filed subsequently, concerning visitation rights of the father. In February of 1982 Samuel Griffin filed a rule to have the custody changed from Mary Griffin to himself.

A hearing was held on the matter and the following facts revealed. Defendant-in-rule, Mary Griffin, admitted to living with three men for certain periods since her separation from her husband. The child resided with her during this time. In November of 1980 she moved in with the third man, Michael Bangs, and in December of 1981 a child was born of this union. Sometime prior to February of 1982 she and Mr. Bangs decided to move to Washington state where they both had allegedly secured jobs. Upon learning of this plan, Mr. Griffin filed the rule at issue here. Shortly thereafter, Mrs. Griffin married Mr. Bangs. She admitted at trial part of the reason she and Mr. Bangs married at that time was to improve her chances of retaining custody of Sammy.

After hearing the evidence the trial court rendered judgment in favor of Mary Griffin as to the custody matter but held she was prohibited from removing the child from the jurisdiction of the court without specific authority from the court. Both parties have appealed thus raising the aforesaid two issues. Plaintiff-in-rule, Samuel Griffin, argues the court erred in continuing custody in Mary Griffin. Defendant-in-rule argues the court erred in refusing to allow her to remove the child from the jurisdiction of the court without its specific permission.

We note in a child custody case we are to give great weight to the determination of the trial judge and shall overturn a decision only when there is a clear abuse of discretion. Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). We find no abuse of discretion in this case as regards the custody issue but we do find an abuse as regards the prohibition from removing the child from the jurisdiction of the court.

The appropriate standard in cases dealing with change of custody is set forth in La.Civil Code art. 157. The article states in pertinent part “... custody of the child ... shall be granted to the husband or the wife, in accordance with the best interest of the child.... ” The best interest of the child is now the sole consideration in awarding custody initially or in changing custody. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980).

In support of his argument that it would be in the best interest of the child to be under his custody, plaintiff-in-rule alleges Mrs. Griffin and her current husband used marijuana in the presence of the child, who was seven years old at the time of the hearing. Mrs. Griffin denied using marijuana in the presence of the child and stated she had ceased using the drug altogether about a year and a half before the hearing. Michael Bangs corroborated this and stated he too had ceased using marijuana several months prior to the hearing. Both denied allegations they had cultivated marijuana in their yard.

Samuel Griffin admitted to living with his current wife for five years before their marriage in 1980. Both admitted to using marijuana at one time but stated they had not done so in six or seven years. He admitted he had filed the custody rule only when he learned of the plan to remove the child from the state. He said he did so because he felt he could not exert any influence over the child if he did not live nearby and because he felt the mother could’ not give the child the proper upbringing.

Several witnesses were called on behalf of Mary Griffin, each testifying they knew her to be a good mother to the child and felt the child was very happy in his current family situation. Dr. Marsha Redden, an expert in child psychology, testified she had spent one hour and twenty minutes testing and talking with the child. She felt the child was well adjusted, enjoyed a very close relationship with his mother and was very fond of his half-sister. In one test which involved the child drawing pictures, the child depicted Michael Bangs as his father. She found the child loved his biological father, Samuel Griffin, but expressed some concern about not being able to please him. Concerning the pending move to Washington, she said the child seemed to be looking forward to it. The child expressed anxiety about the possibility of being separated from his mother. _

Plaintiff-in-rule argues Mrs. Griffin’s past history of living with different men makes her an unfit mother, citing Schexnayder v. Schexnayder, 371 So.2d 769 (La.1979), rehearing denied 1979. We find Schexnayder easily distinguishable on its facts. The mother in that case began having an affair with a man of a different race several months before she separated from her husband. Her conduct was notorious and open and the entire community was aware of her affair. The evidence showed she often neglected the needs of her children and husband so she could meet her paramour at night. During this period she was admonished by her parents to end the affair but the affair continued. In the present case there is no evidence before us to suggest the activities of Mrs. Griffin were in any way “scandalous.” Although she admitted to living with different men, she was not married at the time and we find no evidence her activities caused any stir in the community or in any way embarrassed her child.

While we are aware Mrs. Griffin’s past behavior has been far from exemplary, we do not find her to be an unfit mother. Recent jurisprudence has developed a “reformation rule” which mandates a mother is not considered unfit simply because she has had an adulterous relationship, so long as she has reformed, either by ceasing the relationship or marrying the paramour. See Fulco, supra, and Monsour v. Monsour, 347 So.2d 203 (La.1977). Mr. Griffin insists the reformation rule has no application to this case because Mrs. Griffin admits having relationships with more than one man. Rather, we feel we must look to the totality of the circumstances to determine whether Mrs. Griffin has “reformed.”

The evidence showed at the time of the hearing she had been living with Mr. Bangs for approximately a year and a half and had been married for about a month. The child bom to them was then four months old. They planned to move to Washington state as a family in order to enjoy better jobs. We find these factors indicate a fairly stable home environment and an effort by Mrs. Griffin to “settle down.”

Aside from the considerations of Mrs. Griffin’s “reformation” we are convinced it is in the best interest of the child to remain in the custody of the mother. Mrs. Griffin has apparently had complete responsibility for raising the child since the separation from her husband in 1974 when the child was only five months old. Sammy is a straight-A student and according to the psychologist is happy and well-adjusted. Although we do not condone Mrs. Griffin’s past behavior, we note her living arrangements have apparently had no ill effects upon her son. A somewhat similar situation was presented in Cleeton, supra. There the court remarked at page 1236 as follows:

“To change the custody of these girls would punish their mother for past behavior when there is no proof of a detrimental effect on her daughters. An award of custody is not a tool to regulate human behavior. The only object is the best interest of the child. LSA-C.C. art. 157. The trial court correctly decided in favor of stability, noted that the children have prospered, and gave custody to the parent most intimately involved with their care.”

Since there is no evidence Mrs. Griffin’s behavior has harmed the boy, we feel we would be doing little more than punishing Mrs. Griffin (and the child) if we were to order him removed from his mother’s custody.

For these reasons, we affirm that portion of the judgment which granted Mrs. Griffin custody of Sammy.

We now consider whether or not the court erred in prohibiting Mrs. Griffin from removing the child from the jurisdiction of the court without its permission. A review of the case law reveals the trial court has the discretion to allow or to disallow the child’s removal from the jurisdiction of the court. Pattison v. Pattison, 208 So.2d 395 (La.App. 4th Cir.1968), writ refused 1968; Sachse v. Sachse, 150 So.2d 772 (La.App. 1st Cir.1963). The standard when making such a decision is the same used in custody matters in general, i.e., “the best interest of the child.” Sachse, supra. A more recent case has recognized a custodial parent’s right to remove the child if there is “good reason” for the move and the move is in the best interest of the child. Broomfield v. Broomfield, 283 So.2d 839 (La.App. 2d Cir.1973).

Plaintiff-in-rule relies on the case of Le Bouef v. Fontenot, 390 So.2d 266 (La.App. 3d Cir.1980) in which the court denied the mother the right to take the child from the jurisdiction of the court. The facts of the case are entirely different than the facts at hand. In Le Bouef the mother had separated after only two weeks of marriage. Her history showed she moved around a great deal and had left the child with the father at one time. Her reason for taking the child from the jurisdiction of the court was because she wanted to be a missionary in California. The court denied the move because of its concern about her unstable history and her ability to provide for the child.

To the contrary, the mother in this case has shown no such pattern. Other than her admitted involvement with the three men, she has no past history of “instability.” She desires to move to Washington state, not by herself, but with her husband and their daughter. The move is prompted because of job opportunities for her husband, who is an oilfield worker. She stated she too had a job awaiting her in Washington. Her husband’s family resides there. We find she has “good reason” to move to Washington state, and under the present circumstances it is in the best interest of the child to be with his mother, his half sister, and his stepfather.

We note here we are generally in favor of the parent granted custody enjoying full custodial rights unless there is some reason to set limits. The judge apparently decided it was in the best interest of the child to be under the care of his mother and therefore granted her custody. But this right of custody is a rather limited right if Mrs. Griffin can enjoy it only within the judicial boundaries of the thirty-second judicial district. In today’s society it is simply unrealistic to expect an individual to remain within one small geographic area for the remainder of his or her life. The Pattison court recognized this problem and stated as follows at page 396:

“In our highly mobile society, it is usually unrealistic to demand that a parent granted custody of the children be confined in a certain geographical area during their minority. We take judicial cognizance of the fact that men and women are readily subject to job transfer in our society and equity demands that they should be free to go where their best opportunities lie and pertinent to this case, that a woman who remarries should be free to go to the home which her new husband provides for her.”

We agree with these comments and can find no legitimate reason for the court’s refusal to allow Mrs. Griffin to take the child to Washington.

In Broomfield, supra, the custodial parent wanted to take the child to New York primarily for economic reasons. The court noted that although this move would “seriously impair the father’s inherent right of visitation, this factor must be subordinated to the rights of the custodial parent to be reasonably unrestricted in selecting a place of residence for economic and justifiable personal reasons.”

We are aware in the present case the visitation schedule previously fixed by the court (involving alternate weekends and major holidays) will have to be modified severely to accommodate the geographical distance between the parties. We remand the case to the trial court for the determination of such a schedule. Although Mr. Griffin’s visitation rights are regrettably “seriously impaired,” an adjusted visitation schedule should allow periods of contact with his son to be structured to compensate for the geographical detriment.

For the above reasons, that portion of the judgment granting custody to defendant-in-rule, Mary Sandra Guidry Griffin, is affirmed. We reverse that portion of the judgment prohibiting the removal of the child, Samuel Paul Griffin, III, from the geographical limits of the thirty-second judicial district. We remand to allow the trial court to modify that portion of the judgment relevant to visitation privileges, such modification to be consistent with the views herein expressed and with existent circumstances.

Costs of this appeal are to be paid by Samuel Paul Griffin, Jr.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

      . In light of certain amendments to La.Civil Code 157, the Bordelon case disapproved of the multiple considerations for a change of custody as previously set forth in Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

      . While we realize the value of this testimony is somewhat limited due to the fact it was based upon a rather short interview, we feel it deserves some weight as corroborating the testimony of the lay witnesses.

      . The judgment does not specifically state the child may not be removed to Washington state but common sense dictates the court was prohibiting such a move. The record indicates the matter of moving to Washington was fully addressed at trial and the parties have raised it as an issue on appeal.


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    STATE of Louisiana In the Interest of Gerald HICKERSON.
    No. 82 CA 0584.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Kay F. Howell, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee State of La.
    Kathleen Stewart Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant Gerald Hickerson.
    Before EDWARDS, WATKINS and SHORTESS, JJ.
   SHORTESS, Judge.

This juvenile case is on appeal for the second time. This court originally remanded it to the East Baton Rouge Family Court for a new dispositional hearing, after amending the trial court’s adjudication from attempted second degree murder to aggravated battery.

Initially, the trial court committed the juvenile, Gerald Hickerson, to the custody of the Department of Corrections until his twenty-first birthday. He was fifteen years old at the time. At the hearing mandated by our remand, the trial court made the identical commitment. Later, a third dispositional hearing was held and the juvenile was finally committed to the Department of Corrections for four years, with credit for time served and with eighteen months of that sentence to be suspended. The juvenile has appealed that disposition and alleges two assignments of error.

ASSIGNMENT OF ERROR NO. 1

“The trial court erred in refusing to admit or consider factors of the needs of the child and alternatives to incarceration.”

Under Article 86, Code of Juvenile Procedure, the court should impose the least restrictive disposition consistent with the circumstances of the case, the needs of the child, and the best interest of society. Thus, the defense contends that the court should have considered the evidence offered with regard to alternative placement. The Code of Juvenile Procedure, Article 81, deals with evidence which may be admissible at a dispositional hearing. This article gives the trial court great discretion in determining what evidence to consider in making its disposition, and even permits evidence which would not be admissible at the adjudicatory hearing.

The trial judge did not allow all the evidence offered by the defense regarding alternatives to incarceration at the third dispositional hearing, but our review of the record convinces us that he did not abuse his discretion. Considering the violent nature of the crime and the juvenile’s behavioral problems, he did not abuse his discretion in refusing to consider alternatives to incarceration. Assignment of error number 1 is without merit.

ASSIGNMENT OF ERROR NO. 2

“The disposition imposed is excessive, in violation of La. Const. Article I, Section 20 and C.J.P. Article 86.”

The defense argues that the sentence imposed was excessive and violated the Constitutional prohibition against excessive, cruel and unusual punishment and, although within the statutory limits, is reviewable for excessiveness under State v. Sepulvado, 367 So.2d 762 (La.1979). Closely connected with the right of sentence review is the defendant’s right to have the reasons and factual basis for the sentence imposed upon him (La.C.Cr.P. 894.1 C), articulated to insure that it has been particularly tailored to fit the defendant and the crime.

In Sepulvado, supra, the Louisiana Supreme Court held that a sentence imposed on an adult, which was within statutory limits, is nevertheless subject to review for excessiveness. Although many of the constitutional rights which are accorded adults have been held to apply to juvenile proceedings, the courts have also emphasized that they are conducted as civil proceedings, and all of the rights of an adult trial are not applicable. State in Interest of Causey, 363 So.2d 472 (La.1978). The right of a juvenile to have his “sentence” reviewed has never been established. The trial court is limited in imposing a harsh sentence under Articles 83 through 86 of the Code of Juvenile Procedure, so automatic sentence review under Sepulvado, supra, would be hard to justify, but in this case we choose to review it because of the circumstances.

The guidelines of Articles 83 through 86 of the Code of Juvenile Procedure must be followed, but the trial court is allowed great flexibility and discretion. The record reflects that the trial judge was very familiar with this case. It was before him for the third dispositional hearing. Although the predisposition report recommended probation, it was not a mandatory recommendation. The report, as well as evidence at the adjudicatory hearing, revealed that the juvenile had a problem with alcohol and severe behavioral problems before and after the incident for which he was adjudicated a delinquent. It appears that the trial judge was properly concerned with the interest of society, as well as the child. C.J.P. 86; State in Interest of Weston, 388 So.2d 73 (La.App.1st Cir.1980). He was guided by the serious nature of the offense and the circumstances under which it occurred.

From our review of the record, we find that the trial judge did not abuse his discretion in excluding evidence relative to alternative sentences at the third disposi-tional hearing. Further, the commitment of the juvenile to the Department of Corrections was not an abuse of discretion, in light of the serious nature of the charge, the violence with which it occurred, and the juvenile’s behavioral problems.

AFFIRMED.

      . On August 30, 1980, at approximately 8:00 p.m., Gerald Hickerson and two friends started drinking alcoholic beverages, i.e., vodka and wine. The record indicates that around 1:00 a.m. on August 31, after consuming a considerable amount of said beverages, an argument broke out between Hickerson and John Newell. Hickerson ran into his house, got a large butcher knife, went back outside, and stabbed Ne-well in the left shoulder.

      . Gerald Hickerson first came to the attention of the juvenile authorities in March of 1979 for ungovernable behavior. On May 30, 1979, he was placed on supervisory probation. On March 12, 1980, he was again referred to Family Court for violating the conditions of his probation, as he had been suspended from school three times during the 1979-80 school year. He was also leaving home without permission. He was found to be in violation of his probation and confined to the Family Court Detention Center for ten days. On April 15, 1980, he was again referred to the court, this time for theft, and was counseled and warned. On January 29, 1981, he was referred again for illegally carrying a weapon.


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    William C. DUPONT v. Patrick W. PENDLEY, et al.
    No. 82-CW-0705.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 21, 1982.
    Joseph B. Dupont, Plaquemine, for plaintiff-appellant William C. Dupont.
    F. Barry Marionneaux, Plaquemine, for defendant-appellee Patrick W. Pendley.
    Houston C. Gascon, III, Plaquemine, William C. Kaufman, III, Baton Rouge, for defendants-appellees Ellie Hebert, Gary J. Hebert, Plaquemine Pub., Inc. and The South Pub. Co.
    Before PONDER, SAVOIE and ELLIS, JJ.
   ELLIS, Judge:

This is a suit for defamation, brought by William C. Dupont against Patrick W. Pendley and others. The petition contains the following allegations relative to defendant Pendley:

“5.
“That during the months of March and April, 1982, defendant, Patrick W. Pend-ley maliciously accused and inferred to various individuals and to the general public that petitioner, William C. Dupont, was guilty of violating the State Code of Ethics, which provides for criminal penalties.
“6.
“That said accusations by the defendant, Patrick W. Pendley were accomplished with the malicious and specific intent to publicly and politically embarrass and defame petitioner and his family in the eyes of the general public.
“7.
“That these accusations by Patrick Pend-ley were and have been held false by the Louisiana Commission on Ethics for Public Employees.”

The record reveals that William C. Du-pont is the City Attorney of the City of Plaquemine. His law partner, Joseph B. Dupont, Sr., is the City Judge of Plaque-mine. On March 11, 1982, Mr. Pendley wrote to the Chairman of the State Commission on Ethics for Public Employees, to inquire if it was “permissible for ‘B’ to serve as City Attorney while practicing law in a law firm that includes ‘A’ who serves as part time City Judge.” He was advised that the Commission had concluded:

“Assuming that the ‘ABC’ Law Firm is, indeed, a ‘legal entity’ as such term is used in Section 1113 A of the Code, and assuming further that ‘A’ owns a ‘controlling interest’ in the ‘ABC’ Law Firm, then it is clear that the ‘ABC’ Law Firm is in violation of Section 1113 A of the Code for the reasons previously set forth in Advisory Opinion No. 81-148.”

Mr. Pendley delivered copies of the response of the Commission to the Mayor of the City of Plaquemine, The Greater Plaquemine Post, a newspaper, and to the Judiciary Commission of the State of Louisiana. This suit followed.

After the petition was filed, Pendley moved for summary judgment, attaching to the motion his affidavit and copies of his correspondence with the Ethics Commission. In the affidavit, he stated that he wrote the Commission “in an effort to determine the permissibility of William C. Dupont continuing as City Attorney while practicing law in a law firm that included Joseph B. Du-pont, Sr. who was serving as elected part-time City Judge. The letter did not contain any allegations that William Dupont had violated the Code of Governmental Ethics.” He further stated in the affidavit that the letter was not sent in malice but rather to determine the legality of the situation. He further stated that he had never told or inferred to anyone that Dupont was in violation of the Code of Ethics. Plaintiff filed no countervailing affidavit.

Based on the above facts, the trial judge declined to grant summary judgment in favor of Pendley, stating that, under the circumstances, he could not find “that reasonable minds must inevitably conclude movers are entitled to a summary judgment as a matter of law on the facts presently before the Court.” Pendley applied to this court for a writ of certiorari.

This court issued a writ of mandamus, ordering the trial judge to grant summary judgment, or alternatively, a writ of certio-rari should the trial judge elect not to obey the writ of mandamus. The trial judge having elected the alternative, the matter is now before us for decision.

In Cangelosi v. Schwegmann Bros., Etc., 390 So.2d 196 (La.1980), the following guidelines for an action in defamation are set forth:

“To maintain an action in defamation, the following elements must be shown: (1) defamatory words; (2) publication; (3) falsity; (4) malice, actual or implied; and (5) resulting injury.”

In Mashburn v. Collin, 355 So.2d 879 (La.1977) the court said:

“A motion for summary judgment should be granted where it is shown that no genuine issue of material fact exists and the movant is entitled to judgment as a matter of law. The party moving for summary judgment has the burden of showing the absence of a genuine issue as to any material fact. And where the trial court is presented with a choice of reasonable inferences to be drawn from the subsidiary facts contained in the affidavits, attached exhibits and depositions, the reasonable inferences must be viewed in the light most favorable to the party opposing the motion. However, when a motion for summary judgment is made and supported, the adverse party cannot rest on the allegations of his pleadings, but must set out in evidence or depositions, ‘specific facts showing that there is genuine issue for trial.’ Moreover, if the New York Times standards may be invoked in a case, the courts must apply them in assessing the summary procedure evidence. Accordingly, in order for a genuine issue to exist concerning the material fact of defendant’s state of mind in making the alleged defamatory expression of fact or opinion, the plaintiff-opponent must show that a judge or jury reasonably could find by clear and convincing evidence that the expression of fact or opinion was made with knowing or reckless falsity. Also, if there is no genuine issue of material fact, the plaintiff-opponent must show that a judge or jury reasonably could find by clear and convincing evidence, after construing all of the facts and inferences reasonably to be drawn therefrom in favor of the plaintiff-opponent, that the alleged defamatory statement was made with knowing or reckless falsity. When reasonable minds must conclude that there is no genuine issue of material fact for trial and that the defendant-mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted.”

In this case, it is uncontroverted that no defamatory statement was made by Pendley, and that he was not actuated by malice in seeking and distributing the opinion of the Ethics Commission. He is therefore entitled to summary judgment.

Plaintiff’s answers to interrogatories, on which he relies to create a dispute as to a material fact, were not filed until after the motion for summary judgment was heard and taken under advisement, and properly were not considered by the trial judge.

Accordingly, the writ of certiorari issued herein is made peremptory, and there will be judgment in favor of Patrick W. Pendley dismissing plaintiff’s suit at his cost.

Writ made peremptory and judgment rendered.