author:
BLANCHE, Justice. DIXON, Chief Justice
      LEMMON, Justice,

text:
    James L. BORDELON v. Cheryl Gaspard BORDELON.
    No. 67521.
    Supreme Court of Louisiana.
    Nov. 10, 1980.

      Chris J. Roy, Alexandria, for plaintiff-applicant.
    Jeannette Theriot Knoll, Knoll & Knoll, Marksville, for defendant-respondent.
   BLANCHE, Justice.

This case involves a protracted child custody fight between divorced parents which began when the custodial parent, the mother, allowed a man not her husband to reside with her and her minor children. Although the father obtained custody by default upon proof of the illicit relationship the mother, after one unsuccessful attempt, regained custody some ten months later upon a showing that her home life with her second husband had stabilized. The father appealed the decision and the Third Circuit Court of Appeal affirmed. We granted a writ of certiorari to determine the appropriate standard of proof applicable to change of custody cases.

James Bordelon, relator, married Cheryl Gaspard, respondent, in 1971. Cindy Kaye Bordelon, the child whose custody is in dispute, was born to them that same year. James and Cheryl separated in fact when the child was one year of age and Cheryl took charge of raising the child. In 1975, James obtained a divorce from Cheryl and the judgment awarded custody of the minor to Cheryl. Cheryl then married Kenneth Bordelon, admitted to be the father of her second child, Kenneth Jr., who had been bom prior to Cheryl’s divorce from James. James Bordelon then contracted his fourth marriage.

In January 1978, Cheryl took both children and left Kenneth to reside in her home town. She admitted that she then lived in concubinage with another man for approximately FA months. This relationship prompted Kenneth Bordelon, who had previously filed suit for a separation, to petition for custody of Kenneth, Jr. and James Bordelon to seek a change of custody of Cindy to himself. James was granted a change of custody by default judgment after Cheryl fled the jurisdiction of the court in an attempt to keep from loosing Cindy. Armed with a court order, he regained physical custody of Cindy in Texas. Kenneth and Cheryl were reconciled before the custody hearing concerning Kenneth, Jr., and they have remained married to the present.

In February 1979, approximately three months after the reconciliation and five months after the custody change, Cheryl petitioned for a change of custody of Cindy. A custody change was denied since the trial court was not positive that Cheryl’s marriage was truly stable after only three months’ reconciliation. Further, the court found that the only factor indicating that the father was any less fit to raise Cindy than he was five months earlier was that during this period he was charged with the crime of shoplifting and had forfeited his appearance bond. In addition, the court noted that Cindy was in the middle of a school year and that a sudden change of custody would require her to become readjusted to a new school in a very short time. In August 1979, Cheryl again petitioned for custody of Cindy. At trial, Cheryl and Kenneth Bordelon testified that they had been happily married since their reconciliation and that they both missed Cindy very much. They also testified that Kenneth had practically raised Cindy after Cheryl’s factual separation from James and that Cindy was very close to her half-brother, Kenneth, Jr. Cheryl testified that every other weekend she drove 400 miles one way to exercise her visitation privileges. There was also some testimony that James Borde-lon was defrauding the Social Security Administration by working while receiving benefits for total disability. At the conclusion of the trial the court, without assigning reasons, rendered judgment in favor of respondent, Cheryl Bordelon.

In affirming the change of custody to the mother, the Third Circuit Court of Appeal stated that the singular test in child custody matters is the best interest of the child as determined from a totality of the circumstances, including maintenance of a stable environment for the child. Applying this test, the court stated, “In light of evidence showing the mother’s continued reform, the fact that the child is being returned to the mother after being with the father less than a year, and the great weight to which the trial judge’s decision is entitled in custody cases, we cannot say that the district judge was clearly wrong. Arceneaux v. Domingue, 365 So.2d 1330 (1970).” 381 So.2d 871 at 875.

Relator argues that, given the undisputed facts, the best interest of the child would be served as a matter of law only by allowing the custody to remain with relator. In making this argument he claims that the lower court erroneously applied the doctrine of manifest error to a situation not calling for appellate review of fact. He claims that the error was compounded by the court’s failure to apply a rule which would have required respondent to bear a heavy burden of proving that continuation of the present custody (with relator) was so deleterious to the child as to justify removing her from the environment to which she was accustomed. Fulco v. Fulco, 259 La. 1122, 254 So.2d 603 (1971).

Although not expressly provided until a 1979 amendment to Civil Code art. 157, this Court had held in the past that the article applied to a change of custody as well as an initial award of custody. Sanford v. Sanford, 208 La. 1073, 24 So.2d 145 (1945); Black v. Black, 205 La. 861, 18 So.2d 321 (1944). Before 1977, this article and all of its predecessor articles in earlier codifications provided in substance that child custody was to be awarded to the spouse who obtained the judgment of separation or divorce unless the court found that “for the greater advantage of the children”, custody should be awarded to the other spouse.

In Fulco, supra, this Court synthesized into a framework of analysis the various rules which had been judicially formulated over the years in change of custody cases. We concluded that the following legal principles were relevant to a determination of child custody: (1) The paramount consideration in determining to whom custody should be granted is always the welfare of the children. (2) The general rule is that it is in the best interest of the children to grant custody to the mother, especially when they are of tender years, unless the mother is morally unfit or otherwise unsuitable. (3) When a trial court has made a considered decree of permanent custody, the party seeking a change of custody has a heavy burden of proving that the present custody is deleterious to the children as to justify removing them from the environment to which they are accustomed. (4) The decision of the trial judge is entitled to great weight. Eventually, the first principle concerning the welfare of the children came to be construed as requiring custody changes to be in the best interest of the children. Estes v. Estes, 261 La. 20, 258 So.2d 857 (1972); DeCelle v. DeCelle, 313 So.2d 634 (La.App.2d Cir.1975).

In 1977 the legislature, no doubt aware of Fulco and later cases following it, saw fit to amend C.C. art. 157 to read, in pertinent part, as follows:

“In all cases of separation and divorce, permanent custody of the child or children shall be granted to the husband or the wife, in accordance with the best interest of the child or children.”

In essence, the legislature expressly adopted only one element of the Fulco rationale, thereby indicating an abrogation of the remainder of the rationale to the extent that it prescribed substantive criteria for granting and changing custody.

This position is strengthened when one considers the language chosen by the legislature in relation to the burden of proof announced in Fulco. In requiring proof that continuation of present custody was deleterious to the child before permitting a change of custody, Fulco, supra, we were, in substance, limiting the rule of the best interest of the child to only those situations where the danger of physical or psychological harm to the child required a change of custody. In amending the child custody statute, the legislature gave no indication that such a stringent substantive limitation on custody changes was applicable, and this Court is in no position to read such a requirement into the statute. Thus, the best interest of the child, and not the possibility of harm, is the sole criterion applicable to change of custody cases.

As the Third Circuit Court of Appeal correctly indicated, even though there is no longer an inflexible rule with regard to changes of custody, the policy consideration underlying the rule, stability of environment, is still relevant to a determination of the best interest of the child. A court should consider the prior history of the child’s custody when asked to change custody. Generally, it might not be in the best interest of a child to be regularly moved from parent to parent. But this is a single consideration to be weighed with all other factors relevant to a determination of the best interest of the child.

Relator’s next argument involves the scope and method of appellate review of custody cases. He posits that the “manifest error” doctrine, cited by the appellate court as controlling, is only applicable to findings of basic or evidentiary fact and is not applicable to conclusions founded upon undisputed fact. Thus, relator urges us, in essence, to review the trial court’s judgment, and its implicit conclusion that the facts indicate that the best interest of the child would be served by placing her with her mother, de novo. This contention is without merit.

This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion. Fulco, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980). This test is substantially similar to the rule applied by the appellate court, which prevents the upsetting of a trial court determination of fact unless it is “clearly wrong”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979). Under these rules, a conclusion reached by a trial court derived from the facts is entitled to just as much weight as a conclusion that certain evidence establishes a fact. Thus, the Third Circuit Court of Appeal applied a proper standard of review.

Upon our review of the record, we conclude that the trial court did not abuse the discretion accorded it by law. The facts showed that the mother was primarily responsible for raising the child from birth until the father obtained custody when the child was almost seven years of age. The child prospered while under the care of the mother and, later, the mother’s second husband. Testimony established that the mother’s standard of living was more than adequate to allow the child’s former standard of living to continue. The child has a younger half-brother of whom she is very fond who is living with the child’s mother.

The only factors weighing against the change of custody to the. mother are the fact that the mother, during a period of marital discord, lived in concubinage for a short while and the fact that the father had custody of the child for ten months prior to this action. In this regard, the following language from Cleeton, supra, at 1236 is relevant:

“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.”

Further, the stability factor weighs heavily in favor of the mother, since she was the parent most intimately involved with raising the child and had only lost custody for a short while in comparison to the child’s age.

For the foregoing reasons, the judgment of the lower court is affirmed.

AFFIRMED.

DIXON, C. J., concurs with reasons.

DENNIS, J., concurs for reasons assigned by DIXON, C. J.

LEMMON, J., dissents and assigns reasons.

DIXON, Chief Justice

(concurring).

I respectfully concur, disagreeing with the explanation of the appropriate standard of appellate review.

LEMMON, Justice,

dissenting.

The only facts poirfted to by the court of appeal as supportive of the trial court’s decision to change custody were (1) the mother’s continued reform and (2) the relatively short period of time (one year) that the father had custody.

The first fact smacks of maternal preference considerations, suggesting that the mother is entitled to regain custody lost because of immoral behavior if she raised her morals to an acceptable level. And the second fact merely suggests that a second change of custody is not too bad if done relatively quickly.

But a series of custody changes are bad, and significant factual justification should be required. The mother’s earning her “right” to regain custody by improving her moral behavior does not, in my opinion, constitute significant justification. Once a mother has lost custody, the award to the father should not be changed back unless the mother presents sufficient facts to establish that a second change is in the best interest of the child (rather than a reward for the mother).

      . We need not decide, as the appellate court chose, whether the 1979 amendment to C.C. art. 157, eliminating the maternal preference aspect of Fulco, is retroactive or not since it is nothing more than a clarification of the language of the statute as amended in 1977 and it tells us nothing more than what we have already indicated the 1977 amendment accomplished. Further, the addition of language expressly requiring application of the “best interest” test to changes of custody merely codifies the interpretive jurisprudence, Black v. Black, supra, which was neither expressly nor impliedly altered by the 1977 amendment.


source: Caselaw Access Project

author:
DENNIS, Justice.
     MARCUS, Justice BLANCHE, Justice

license: Public Domain

text:
    Silton TURNER v. AMERICAN MUTUAL INSURANCE COMPANY.
    No. 65636.
    Supreme Court of Louisiana.
    Nov. 12, 1980.
    Rehearing Denied Dec. 15, 1980.

      Jerold Edward Knoll, Knoll & Knoll, Marksville, for plaintiff-applicant.
    Larry Stewart, Stafford, Stewart & Potter, Alexandria, for defendant-respondent.
   DENNIS, Justice.

The issue presented in this workers’ compensation case is whether the plaintiff is unable “to engage in any gainful occupation for wages” within the meaning of La. R.S. 23:1221(2) (Supp. 1975) and thus should be awarded compensation for permanent total disability. The court of appeal, affirming the trial court, held that the plaintiff, a mentally retarded woodcutter whose right foot had been crushed, was not permanently disabled because he could still perform “some type of gainful employment.” Turner v. American Mut. Ins. Co., 375 So.2d 113, 115 (La.App.3d Cir. 1979). We reverse and remand.

In Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980) we held that the odd-lot doctrine should be used as the guiding concept in determining whether an injured employee is unable “to engage in any gainful occupation for wages” and is thus totally and permanently disabled. La. R.S. 23:1221(2) (Supp. 1975). In the present case, the plaintiff’s employment capabilities were severely restricted because of his mental and physical limitations, and the employer did not demonstrate the existence of an actual job in the employee’s general locality at which he has a reasonable opportunity to be employed. Because the plaintiff established a prima facie showing of total and permanent disability, we reverse the holdings of the lower courts, but remand to allow the defendant a fuller opportunity to rebut by showing an actual job is available.

Silton Turner, a twenty year old black man, was employed as a sawhánd for a logging contractor. His job required that he perform manual labor, including the operation of a power saw and, at times, a log skidder, in cutting and moving logs in the woods. On February 22, 1977, while riding on the front of a log skidder, plaintiff received serious injury to his right foot when the operator of the skidder raised the blade, pinning Turner’s foot between the blade and the radiator of the skidder, breaking several bones. Turner was initially taken to Dr. LaCour in Oakdale and then transported to Rapides General Hospital where he was treated by Dr. Cedric Lowrey, an orthopedic specialist. After two operations conducted by Dr. Lowrey, plaintiff was ultimately released by the doctor with a residual disability of thirty to forty per cent in the right foot.

Turner was paid workers’ compensation benefits until Dr. Lowrey notified the employer’s insurer that he felt the plaintiff could resume work on a trial basis. Upon receiving this report, the insurer terminated compensation payments. Turner sued claiming that the payments were improperly discontinued because he was permanently disabled. The trial court found that Turner’s disability could not be defined as permanent and total under La. R.S. 23:1221(2) as amended in 1975; the court of appeal affirmed. We granted certiorari to review the lower courts’ statements and applications of the law to the evidence relative to the issue of permanent total disability.

Under the odd-lot test as announced in Oster v. Wetzel Printing, Inc., supra, an injured employee is entitled to total, permanent disability compensation if he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist. This determination is made after scrutiny of the evidence of the worker’s physical impairment as well as his mental capacity, education, and training. If the worker establishes that he falls into the odd-lot category, he is entitled to total, permanent disability compensation unless the employer or his insurer is able to show that some form of suitable work is regularly and continuously available to the employee within reasonable proximity to the worker’s residence.

In applying this analysis to the present case, we find that the concrete evidence is virtually undisputed. Turner sustained fractures of the second and third metatarsals of the right foot with a dislocation of all tarsometatarsal joints. He was required to undergo two surgical operations and wear a cast on his leg. His second metatarsal achieved questionable healing, resulting in a precarious union that makes him much more susceptible to injury than a normal person. Approximately one year after the accident, it was determined that he had lost virtually all motion of his great toe and 50% of the motion of his other toes. Atrophy of his right calf muscles had decreased the size of his limb by one inch in circumference. His doctors concluded that the 30 to 40% disability of his foot, and its added thickness, would require him to wear mismatched shoes.

Turner began working at the age of fifteen and labored primarily as a log cutter. He worked briefly in cannery and as a combination truck loader and driver for a pecan company. He attempted to go back to work as a log cutter as his doctor advised. He quit after three or four hours, however, when his foot become swollen and painful. He has attempted to exercise his foot by walking, but he experiences pain after standing or walking for long periods. Turner testified that he cannot perform any job that requires such use of his injured foot. He conceded that he could drive an automobile with an automatic transmission by applying the brake with his healthy left foot, but he testified that he could not operate a standard transmission truck or skidder, which would require manipulation of the brake with his injured foot.

Doctor Lowrey, the orthopedist who treated and performed surgery on Turner, testified the employee could eventually return full time to the job of log cutter. The doctor acknowledged that his patient had a 30-40% disability of the foot and a precarious union of one bone which could develop into a pseudo-arthrosis. He also acknowledged that Turner’s foot could be reinjured easily if it was jerked up or down. The doctor did not doubt that Turner experiences pain and has a stiff forefoot, but the physician thought that the condition would improve if Turner forced himself to walk on it. The doctor was of the opinion that Turner could not do work that required him to put a great deal of weight or pressure on his toes. Although the doctor confessed he was not too familiar with logging, he said he did not think it involved standing or pushing up on one’s toes.

On the other hand, Dr. Joffrion, an orthopedist who saw Turner on one occasion for purposes of evaluation, testified that in his opinion the patient cannot perform the duties of a logger because he can no longer stand or walk for extended periods. According to the doctor, Turner’s disability results from a permanent stiffness of the midfoot which, together with the malunion of one bone, alters the mechanics of the foot, and causes excessive force at the ankle and toe area. Dr. Joffrion testified that he was familiar with the physical requirements of the job of logger and that Turner could not perform them because his condition made prolonged walking, standing, stooping or climbing impossible. Consequently, he recommended that the plaintiff be given rehabilitation and training for a sedentary occupation.

George Hearn, PhD, an industrial psychologist and vocational rehabilitationist, testified that he interviewed Turner and gave him a battery of intelligence, achievement, aptitude and psychological tests. According to the tests, Turner has an intelligence quotient of 64, and has attained education grade levels of 4.6 in reading, 4.0 in spelling, and 2.3 in arithmetic. He is mentally retarded, quite limited in academic skills, and his eye-hand motor coordination is consistent with his level of intellect, his achievement and his experience. In the psychologist’s opinion, however, Turner’s job skills in these areas had not been further impaired because of the accident.

Over plaintiff’s counsel’s objection, Dr. Hearn was allowed to express his opinion of whether Turner can “work at any gainful occupation for wages” assuming that Turner has a “30 to 40 per cent impairment of function of his right foot as a whole; . .. this limitation restricts him from doing work on his tip-toes; or in pushing up on his toes; ... he has good motion [in] his ankle in and out, ... up and down.” The psychologist testified that, since Turner had driven an automobile to his office for his interview, the injured employee could also drive a pulpwood truck and a skidder. Dr. Hearn saw “no reason” why Turner could not perform assembly line work in a cannery or furniture factory, light janitorial or custodial work and a gasoline service station job which does not require him to handle money or credit cards. The vocational psychologist testified that the state employment office had informed him of job openings for woodcutters and state civil service light custodial workers. He also stated there were job opportunities at a cannery and a furniture factory. Dr. Hearn did not testify, however, as to whether these employers would hire Turner despite his mental and physical limitations or whether the jobs were near his residence. On cross-examination, in response to the direct question, “who has a job at this point, that would hire this man?”, Dr. Hearn gave the qualified response that a cannery where Turner had worked before “should certainly consider hiring him, if it’s the same kind of work, and under the assumption that he can do it.”

Based on this evidence, the trial court found that Turner was not totally disabled because “he can perform work in the logging business as a truck driver and as operator of a skidder” as well as other occupations pointed out by the psychologist-voca-tionalist. The court of appeal held that the trial court was not manifestly erroneous in rejecting Turner’s claim of total permanent disability because he failed to prove to a legal certainty and by a reasonable preponderance of the evidence that he is unable to pursue any type of gainful employment as a result of the injury. Turner v. American Mut. Ins. Co., 375 So.2d 113 (La.App.3d Cir. 1979).

The trial court and court of appeal, of course, did not attempt to decide the case in accordance with the odd-lot doctrine. Although we mean no criticism of their failure to do so, in the absence of an expression by this Court on the subject, the result reached below illustrates the dangers of a simplistic or mechanical application of statutory rules in the field of workers’ compensation. Turner, a mentally retarded, unskilled laborer, who sustained a permanent 30-40% disability of his foot, was denied either permanent partial disability or permanent total disability benefits. Both lower courts seemed to reject the opinion of the one doctor who said Turner could return to the work in which he was engaged at the time of the accident. But they based their decisions largely on the testimony of the vocational psychologist, who, in essence, stated that there were jobs available at various places in the state which a person with Turner’s disability could perform. Thus, the trial court and court of appeal never focused on the question of whether Silton Turner, considering both his physical and mental limitations, can successfully obtain and hold regular employment in actual jobs available to him within reasonable proximity to his residence.

Under the proper interpretation of La. R.S. 23:1221(2), as set out by the odd-lot doctrine, the plaintiff’s evidence makes a prima facie case for his classification in that category. See Oster v. Wetzel Print ing, Inc., 390 So.2d 1318 (La.1980). It is agreed by all concerned that he Is mentally and intellectually unable to do any work outside of manual labor. The plaintiff’s evidence shows that he cannot do work which requires prolonged standing, walking, stooping, or climbing. It was also shown that increased activity affecting the injured foot will aggravate the arthritic condition and accelerate its effects.

The evidence regarding the plaintiff’s ability to operate a skidder or drive a truck was conflicting though the trial judge decided that Turner possessed such ability. No evidence was introduced, however, that would establish that such work was actually available, nor that any employer would hire a person in Turner’s condition over healthy competitors. The record is devoid of evidence that Turner’s employer offered to rehire him either in his old job or at lighter work, such as operating a skidder or a truck. Turner is obviously at a substantial disadvantage in such competition especially when all his prior jobs contained at least some required tasks which he can no longer perform.

Turner lives in the small town of Simmesport. It is unknown how many jobs there were available to the plaintiff before he was injured, considering his mental capabilities. There is also no indication of whether there are any opportunities within a reasonable area for a person who can drive a truck or operate a skidder, but who cannot do other work which often is combined with those activities. Ultimately, it has not been shown that there is an occupation available within a reasonable area in which Turner can work considering his physical disability, education, and mental deficiencies.

We believe that a remand in this case is appropriate. We only recently announced in Oster that the odd-lot doctrine would be used to determine the extent of a worker’s disability. We did not remand in Oster because the evidence showed that the injured elderly bookbinder could not engage in gainful employment even if a suitable job existed. Since it is possible that an actual job in Turner’s vicinity exists that might afford the plaintiff gainful employment, we feel that the defendant should be allowed an opportunity to make this showing. On remand the plaintiff also will be allowed to introduce further evidence to support his case under the doctrine.

If the employer is successful in rebutting Turner’s prima facie showing of total disability, the trial judge should reconsider the appropriateness of compensation for partial disability under La. R.S. 23:1221(3). If it is found that Turner can return to gainful employment, though not to the same or similar work, then he would be entitled to an award of partial disability rather than the schedule loss under La. R.S. 23:1221(4)(g) and (o).

REVERSED AND REMANDED TO THE DISTRICT COURT.

MARCUS, J., dissents and assigns reasons.

BLANCHE, J., concurs in the result and assigns reasons therefor.

WATSON, J., recused.

LANDRY, J. ad hoc, dissents.

MARCUS, Justice

(dissenting).

The court of appeal in affirming the trial court found that Turner was not totally disabled because he could perform “some type of gainful employment.” I agree. Hence, plaintiff is partially disabled and should be paid disability benefits in accordance with the schedule of payments set forth in La. R.S. 23:1221(3). I respectfully dissent.

BLANCHE, Justice

(concurring).

I agree with the majority’s remand in order to determine whether this plaintiff is totally and permanently disabled. I will now acquiesce in the majority’s application of the “odd-lot” doctrine in this jurisdiction although I have previously indicated my disagreement with incorporating this doctrine into our law. See my dissent in Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (1980).

       The Honorable Paul B. Landry, Jr. participated in this decision as an Associate Justice pro tempore.


author: PER CURIAM.

text:
    STATE of Louisiana v. Jesse Lee BRUMFIELD.
    No. 80-KA-1386.
    Supreme Court of Louisiana.
    Nov. 19, 1980.
    William L. Brooks, Amite, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Duncan S. Kemp, III, Dist. Atty., Johnny S. McGary, Abbott J. Reeves, Asst. Dist. Attys., for plaintiff-appellee.
   PER CURIAM.

Defendant Jesse Lee Brumfield was charged by grand jury indictment with second degree murder, a violation of La. R.S. 14:30.1. On March 10,1980, defendant withdrew his former plea of not guilty and pleaded guilty to a reduced charge of manslaughter. On April 30, 1980, the trial court, having studied a presentence investigation report on defendant, sentenced him to serve twenty-one years at hard labor, the maximum term provided for the offense of manslaughter. See, La. R.S. 14:31. On appeal defendant argues by two assignments of error that the sentence was excessive and that the trial court did not make an adequate statement of sentencing reasons under La. C.Cr.P. Art. 894.1.

We are unable to review defendant’s claim of excessiveness, State v. Sepulvado, 367 So.2d 762 (La.1979), because the trial judge did not state for the record the considerations taken into account in imposing sentence, as required by La. C.Cr.P. Art. 894.1(C). See, State v. Bourgeois, 338 So.2d 359 (La.1980). Reference to the presen-tence investigation report, to which the trial judge adverted, does not explain the imposition of the maximum penalty on this 19-year-old first offender. When the reasons for an apparently severe sentence are not reflected on the record, it has been our practice to vacate the sentence and remand the case for resentencing with a full statement of the factual basis therefor. See, State v. Wright, 384 So.2d 399 (La.1980); State v. Cox, 369 So.2d 118 (La.1979); State v. Jackson, 360 So.2d 842 (La.1978).

Accordingly, defendant’s conviction is affirmed, but the sentence is set aside and the case is remanded for resentencing in accordance with law.


author: LEMMON, Justice,

text:
    James E. KEMP d/b/a Capital Leasing Company v. Julian E. FERNANDEZ.
    No. 80-C-2279.
    Supreme Court of Louisiana.
    Nov. 26, 1980.
   In re Julian E. Fernandez, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Parish of Assumption, Number 12527,387 So.2d 629.

Writ denied.

LEMMON, J., concurs and assigns reasons.

LEMMON, Justice,

concurring.

I would treat the petition for injunction as a petition for nullity of judgment, since that pleading asserted that plaintiff had wrongfully obtained a judgment for unearned discount of approximately $15,000. Under that approach defendant arguably was seeking to annul the judgment as one obtained by ill practice. C.C.P. art. 2004. However, defendant was apparently present in court when the matter was heard in December, 1975 (allegedly in the “form of a confirmation”), and an action for nullity had to be brought within one year of the time defendant discovered or should have discovered the ill practice. Thus the March 14, 1977 pleading was not filed timely to serve as a petition to annul the December, 1975 judgment.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Darrel VAN WILLET, Jr. et ux.
    No. 80-C-1448.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re Darrel Van Willet, Jr. applying for certiorari to the Third Circuit Court of Appeal. 383 So.2d 1344. Parish of Rapides.

Denied.


text:
    STATE of Louisiana, DEPARTMENT OF TRANSPORTATION & DEVELOPMENT v. Darrel VAN WILLET, Jr. et ux.
    No. 80-C-1450.
    Supreme Court of Louisiana.
    Sept. 12, 1980.
   In re State of Louisiana Department of Transportation & Development applying for certiorari or writ of review, to the Court of Appeal, Third Circuit. 383 So.2d 1344. Parish of Rapides.

Denied.


text:
    In re Application of Carole Shelby Carnes TUCKER for an Order Ensuring that she Receives Credit Due to the Paper Submitted by her in the Louisiana State Bar (Code III) Examination.
    No. 80-0-2068.
    Supreme Court of Louisiana.
    Sept. 18, 1980.
   In re Carole Shelby Carnes Tucker, applying for an order ensuring that she receives credit due to the paper submitted by her in the Louisiana State Bar (Code III) Examination.

In view of the response of the chairman of the Committee on Bar Admissions, the application is denied. Nevertheless, it is ordered that the chairman and the committee report to the Court when the examination paper in question is identified and destroy no examination papers until it is identified, or until further orders of the Court.

MARCUS, BLANCHE and WATSON, JJ., would deny with no reservations.


text:
    STATE of Louisiana ex rel. John T. JOHNSON v. Frank C. BLACKBURN, Warden.
    No. 80-KH-1567.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re John T. Johnson applying for remedial writ. Parish of Lincoln.

Denied.


text:
    STATE of Louisiana ex rel. Raymond TUCKER v. Frank SHEA, Judge, Criminal District Court, Parish of Orleans, Section G.
    No. 80-KH-1607.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Raymond Tucker applying for writ of mandamus. Parish of Orleans, No. 257-MO.

Denied. Relator must first apply to district court.


text:
    STATE of Louisiana v. Lloyd B. JOHNSON.
    No. 80-K-1606.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Ron LeVecchio, and/or L’Observat-eur applying for writs of certiorari, mandamus and prohibition. Parish of St. John the Baptist. Nos. 1729 and 1730.

Denied.


text:
    STATE of Louisiana ex rel. Clarence RANDOLPH v. Matthew BRANIFF, Criminal District Court B and Edwin A. Lombard, Clerk of Criminal Court, Orleans Parish.
    No. 80-KH-1598.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Clarence Randolph applying for writ of mandamus. Orleans Parish. No. 267-145.

Denied.


text:
    STATE of Louisiana ex rel. Albert DEMEN v. Judge Alvin Rudy EASON.
    No. 80-KH-1595.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Albert Demen applying for writ of mandamus. Parish of Jefferson. No. 71-831.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Albert WILLIS v. Judge Donovan PARKER.
    No. 80-KH-1579.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Albert Willis, applying for writ of mandamus. Parish of East Baton Rouge. No. 60995.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Jessie McGEE v. Judge Israel M. AUGUSTINE, Jr.
    No. 80-KH-1578.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Jessie McGee applying for writ of mandamus. Parish of Orleans. No. 253-296, Sect. I.

Denied. Moot.


text:
    STATE ex rel. Jesse J. CUEVAS of Louisiana v. ORLEANS INDIGENT DEFENDER PROGRAM.
    No. 80-KH-1544.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Jesse J. Cuevas applying for remedial writ. Orleans Parish. No. 262-707.

Denied.


text:
    Larry SMITH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary et al.
    No. 80-KH-1543.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Larry Smith applying for habeas corpus to the Parish of Orleans. No. 224-172 and 173.

Denied.


text:
    CITY OF BATON ROUGE v. Donald C. THERIOT.
    No. 80-K-1539.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Donald C. Theriot applying for writ of certiorari to the 19th Judicial District Court. Baton Rouge Parish. No. 4-80-712.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Carol A. BROWDER and William M. Browder.
    No. 80-K-1533.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Carol Browder and William M. Browder, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Franklin. No. 19424.

Denied.

DIXON, C. J., and DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Joseph R. HAYES, Jr.
    No. 80-K-1527.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Joseph R. Hayes applying for writ of certiorari. Parish of Orleans. No. 228-601.

Denied. Relator has an adequate remedy by appeal after sentence.


text:
    STATE of Louisiana v. Emelda BRAZLEY and Herbert Brazley.
    No. 80-K-1524.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana applying for writ of certiorari to the Orleans Criminal District Court. No. 276-078.

Denied.

MARCUS, BLANCHE, LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana ex rel. Tyronne J. FORREST v. Hon. Harry F. CONNICK, District Attorney and James Parsons, Chief of Police, Orleans Parish.
    No. 80-K-1511.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Tyronne J. Forrest applying for writ of mandamus to the Orleans Parish Criminal District Court. No. 269-672.

Denied.


text:
    STATE of Louisiana ex rel. James Michael DUPRE v. EAST BATON ROUGE PARISH CLERK OF COURT.
    No. 80-K-1510.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re James Michael Dupre applying for writ of mandamus. Parish of East Baton Rouge. No. 7-76-959.

Writ denied.


text:
    CITY OF CROWLEY v. Francis VALLERY.
    No. 80-K-1475.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Francis Vallery, applying for remedial writs. Parish of Acadia. No. 30142.

Denied.


text:
    Oswald John ZERINGUE, Jr., and Ina Mae Andrea (Zeringue) Hearn v. CASTILLE DEVELOPMENT, INC., and Officers. CASTILLE DEVELOPMENT, INC. v. Oswald John ZERINGUE, Jr., and Ina Mae Andrea (Zeringue) Hearn.
    No. 80-C-1471.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Oswald John Zeringue, Jr., and Ina Mae Andrea (Zeringue) Hearn, applying for writs of certiorari. Parish of St. Charles. 29th Judicial District Court. Nos. 18198 and 15413.

Writ denied.


text:
    STATE of Louisiana ex rel. Sherman HAMPTON v. Edwin A. LOMBARD, Clerk, Criminal District Court, Parish of Orleans.
    No. 80-K-1456.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Sherman Hampton applying for remedial writ. Parish of Orleans. No. 271-470.

Denied.


text:
    STATE of Louisiana v. Floyd FALKINS.
    No. 80-K-2040.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State of Louisiana, through the District Attorney Harry F. Connick, applying for writ of Certiorari. Parish of Orleans. No. 254-699.

Granted.


text:
    STATE ex rel. Melvin A. LIVIOUS v. Warden Roger AUCOIN.
    No. 80-K-1433.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re State ex rel. Melvin A. Livious applying for writ of Habeas Corpus to the 19th Judicial District Court, for the Parish of East Baton Rouge.

Denied.


text:
    STATE of Louisiana v. Kody ROY.
    No. 80-K-1486.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Kody Roy applying for writ of review or certiorari. Parish of Jefferson Davis. No. Cr-878-80.

Granted. Sentence set aside. Case remanded to comply with C.Cr.P. art. 894.1.


text:
    Elwood TRAHAN v. BAILEY’S EQUIPMENT RENTALS, INC. et al. BAILEY’S EQUIPMENT RENTALS, INC. et al. v. SOUTHEASTERN FIDELITY INSURANCE COMPANY et al.
    No. 80-C-1501.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Mid-South Underwriters, Inc., applying for certiorari, or writ of review to the Court of Appeal, Third Circuit, 383 So.2d 1072; 383 So.2d 1078. Parish of Acadia.

Denied.


text:
    Kenneth SOLIS v. CIVIC CENTER SITE DEVELOPMENT CO., INC., d/b/a Downtown Howard Johnson’s et al. Emanuel PALMISANO v. CIVIC CENTER SITE DEVELOPMENT CO., INC., d/b/a Downtown Howard Johnson’s et al. Charles A. ARNOLD v. CIVIC CENTER SITE DEVELOPMENT CO., INC., d/b/a the Howard Johnson’s Downtown Motor Lodge et al.
    No. 67814.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Charles S. Arnold, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans, 385 So.2d 1229.

Writ denied. Result is correct.


text:
    PALAIS ROYAL, INC. v. The BOSSIER CENTER, INC.
    No. 80-C-1534.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re The Bossier Center, Inc. applying for certiorari to the Second Circuit Court of Appeal for the Parish of Bossier, 385 So.2d 886.

Writ denied.


text:
    Kenneth SOLIS v. CIVIC CENTER SITE DEVELOPMENT CO., INC. d/b/a Downtown Howard Johnson’s et al. Emanuel PALMISANO v. CIVIC CENTER SITE DEVELOPMENT CO., INC., d/b/a Downtown Howard Johnson’s et al. Charles A. ARNOLD v. CIVIC CENTER SITE DEVELOPMENT CO., INC. d/b/a Howard Johnson’s Downtown Motor Lodge et al.
    No. 80-C-2009.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Kenneth Solis and Emanuel Palmi-sano, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans, 385 So.2d 1229.

Writ denied. The result is correct.


text:
    Laura Wallace TAYLOR v. PULLMAN KELLOGG CORPORATION and the Travelers Insurance Company.
    No. 80-C-1537.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Laura Wallace Taylor applying for certiorari to the First Circuit Court of Appeal for the Parish of East Baton Rouge, 387 So.2d 1267.

Denied.


text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 80-C-1463.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Polk Chevrolet, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 387 So.2d 1240.

Denied; not final.

BLANCHE, J., would grant the writ.


text:
    Joseph H. KAVANAUGH et al. v. Marian Mayer BERKETT et al.
    No. 80-C-1526.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Joseph H. Kavanaugh, et al., applying for writ of certiorari or Review to the Court of Appeal, First Circuit, Parish of East Baton Rouge, 387 So.2d 1270.

Granted.


text:
    Louis MEYERS v. Norman BASSO et al.
    No. 80-C-1514.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Allstate Insurance Company and Norman Basso, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa, 388 So.2d 78.

Granted.


text:
    Lorenza WILSON v. EBASCO SERVICES, INC., et al.
    No. 80-C-1507.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Lorenza Wilson, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles, 386 So.2d 375.

Granted.


text:
    STATE of Louisiana ex rel. Larry SMITH v. Frank BLACKBURN et al., Warden, Louisiana State Penitentiary.
    No. 67162.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Larry Smith, applying for reconsideration of denied writ of habeas corpus of June 13, 1980. Parish of Orleans. Nos. 244-172 and 244-173.

Denied.


text:
    STATE of Louisiana v. Martin RUDOLPH.
    No. 80-K-2154.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Martin Rudolph, applying for remedial writs and stay order. Parish of Orleans. No. 273-941.

Denied.


text:
    Gordon Leon DUFFIE v. Diane Laird DUFFIE.
    No. 80-C-1798.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Gordon Leon Duffie, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge, 387 So.2d 654.

Denied.


text:
    STATE of Louisiana v. Dennis PATE.
    No. 80-K-2183.
    Supreme Court of Louisiana.
    Sept. 23, 1980.
   In re Dennis Pate, applying for writs of certiorari, mandamus, prohibition, and stay order. Parish of Orleans.

Writ granted. Trial court is ordered to admit defendant to bail during trial before conviction. La.Const. Art. 1, § 18; C.Cr.P. Art. 311.


text:
    Buel Merritt BROWN v. DRILLERS, INC.
    No. 80-C-2033.
    Supreme Court of Louisiana.
    Sept. 26, 1980.
   In re ROC, Inc., applying for writs of mandamus. Parish of Iberville. No. 23859.

Granted. The Court of Appeal is ordered to rule on the merits of the writ application. See Thibodeaux v. King-Wilkinson, Inc., 381 So.2d 1245 (La.1980), and C.C.P. art. 2083. If irreparable injury shown, relator would be entitled to an appeal.


text:
    CAR KITS, INC. v. BOLT-ON PARTS, INC.
    No. 80-C-1751.
    Supreme Court of Louisiana.
    Sept. 19, 1980.
   In re Dann Deaver, applying for supervisory and remedial writs of Mandamus. Parish of East Baton Rouge. No. 226,222.

Denied. Not considered. Not timely.


author: SARTAIN, Judge.

text:
    CANAL MORTGAGE AND FINANCE COMPANY, INC. v. Leon JACKSON.
    No. 10657.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Dec. 19, 1980.

      Roger B. Jacobs, New Orleans, for plaintiff-appellee.
    Matthews & Breeden, Patrick D. Bree-den, New Orleans, New Orleans Legal Assistance Corp., Mark A. Moreau, New Orleans, for defendant-appellant.
    Before BOUTALL, BARRY and SAR-TAIN, JJ.
   SARTAIN, Judge.

This litigation involves the applicability of the Federal Truth-in-Lending Act (15 U.S.C. § 1601 et seq.) and regulations referred to as Regulation Z (12 C.F.R. § 226.1 et seq.). The trial judge granted summary judgment in which a disclosure violation was found but the security contract (mortgage) was not rescinded; Canal Mortgage and Finance Company (creditor) was granted judgment in the contractual amount of the note; Leon Jackson (debtor) was awarded the maximum civil penalties of $1,000.00 and attorney’s fees in the sum of $250.00. The debtor has appealed. We reverse as to rescission, amend as to the money judgment, interest and attorney’s fees, and remand.

On December 29, 1975 Jackson borrowed from the creditor $2,785.92. As security he executed a second mortgage on his home and a chattel on his furniture. The obligation was to be repaid in 48 monthly installments of $100.00, commencing December 29, 1976. The note also provided for 25% attorney’s fees on the balance due in the event of default.

The record reflects that Jackson made no payments on the loan prior to suit being filed. On March 30, 1976 Canal Mortgage filed an executory proceeding on the home loan alleging, inter alia, that the balance due at that time was $3,007.37, plus contractual interest at the rate of 29.8% per annum from date of judicial demand, not to exceed 8% per annum on any amount paid one year or more after maturity, and 25% attorney’s fees.

Upon determining that Jackson and his wife were legally separated when the mortgage was executed, Canal Mortgage converted the proceedings to an ordinary one. Mrs. Jackson intervened on August 31, 1976, asserting a one-half interest in the property unencumbered by the second mortgage.

On August 27,1976 counsel for Mr. Jackson sent the first of two rescission notices to Canal Mortgage. The letter stated:

“The undersigned represents the above-referred individual and, as attorney for Leon Jackson, hereby rescinds this date the transaction dated December 29, 1975, on the grounds (but not limited to) that you falsely disclosed that by the chattel mortgage you obtained an interest in ‘all after-acquired property’ and thereby gave a false disclosure of the information required by 12 C.F.R. 226.8(b)(5) of Regulation Z and the Federal Reserve Board. This rescission is under the authority of 15 U.S.C. [§] 1635 and per said authority, said note, mortgage and chattel mortgage are void. 12 C.F.R. 226.9(d).”

On August 4, 1977 Mr. and Mrs. Jackson entered into a contract to sell the property at a private sale to be passed on or before October 3, 1977.

There then followed (September 27,1977) between counsel what is purported to be a second rescission notice, which stated:

“In furtherance of our telephone conversation of September 26, 1977, and in confirmation of same please note that Leon Jackson is ready to tender reasonable value on or about October 3, 1977. At that time there is a schedule(d) sale . of the property in question.”

On October 14, 1977 the first of two hearings was held on Canal Mortgage’s motion for summary judgment. It was stipulated that the mortgage would be canceled and the net proceeds from the private sale (set for October 17) would be deposited in the registry of the court pending further proceedings. The sale took place as scheduled, and after the first mortgage was satisfied, the sum of $2,385.92 was so deposited.

At a later date Mrs. Jackson was permitted to withdraw the sum of $500.00 in satisfaction of her interest in the property and her intervention was dismissed. The cause as thus postured proceeded to a final determination on the second hearing, then on both parties’ motions for summary judgment.

The trial judge in his oral reasons for judgment concluded that there was a disclosure violation on Canal Mortgage’s part. However, he also concluded that under the particular facts presented Jackson was not entitled to a rescission and was obligated under the terms of the note and cast him accordingly. As a result of the disclosure violation, however, Jackson was awarded the maximum civil penalty of $1,000.00 and $250.00 attorney’s fees.

This appeal by Jackson followed. He complains of (1) the failure of the trial judge to rescind the transaction and (2) the inadequacy of the award for attorney’s fees. Canal Mortgage has not appealed or answered Jackson’s appeal. The judgment is therefore final as to the disclosure violation and the award for civil damages.

The Truth-in-Lending Act (15 U.S.C. § 1601 et seq.), hereinafter referred to as the Act, was enacted to correct many ill practices noted in consumer finance matters. Mourning v. Family Publications Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973). To achieve this purpose uniform and full disclosure requirements are placed on the creditor-lender, the violation of which triggers rather drastic consequences.

Upon the detection of a disclosure violation, which vests in the debtor the right to rescind [section 1635(a)], a four step statutory scheme is set forth in paragraph (b) thereof, which in pertinent part states:

1. “When an obligor exercises his right to rescind ... he is not liable for any finance or other charge, and any security interest given by the obligor becomes void upon such rescission.
2. “Within ten days after receipt of a notice of rescission, the creditor shall return to the obligor any money or property . .. and shall take any action necessary or appropriate to reflect the termination of any security interest created under the transaction.
3. “Upon the performance of the creditor’s obligations . . . the obligor shall tender the property to the creditor, except that if return of the property in kind would be impracticable or inequitable, the obligor shall tender its reasonable value.
4. “If the creditor does not take possession of the property within ten days after tender by the obligor, ownership of the property vests in the obligor without obligation on his part to pay for it.”

Ideally, under the facts of this case and in compliance with the above quoted statute, the following should have occurred: Upon receipt of Jackson’s rescission letter of August 27, 1976 Canal Mortgage should have (1) within ten days returned to him any and all funds previously paid by him and (2) taken immediate steps to cancel their security interest (mortgage). Jackson then would have been obligated to tender (repay) Canal Mortgage the amounts advanced to him or paid to his other creditors on his behalf. The intent and purpose of the Act would have been satisfied and the parties returned to the status quo. Had Jackson made such a tender and Canal Mortgage refused, he would have owed them nothing. This, of course, did not occur and the instant litigation continued.

The issue as to rescission which determines Jackson’s liability under the note for interest and attorney’s fees depends upon the legal effect of his letter of August 27, 1976.

Jackson contends that under the wording of the Act, quoted in part above, the letter is sufficient. Canal Mortgage contends that the letter is deficient in that it does not contain a tender of the loan proceeds. Cited as authority for the latter contention are the cases of Gerasta v. Hibernia National Bank, 575 F.2d 580 (5th Cir. 1978); Sosa v. Fite, 489 F.2d 114 (5th Cir. 1974); Powers v. Sims and Levin, 542 F.2d 1216 (4th Cir. 1976); and Mitchell v. Security, Inc. Corp. of Palm Springs, 464 F.Supp. 650 (S.D.Fla.1979). A brief consideration of these cases and the facts involved in each is in order.

In Sosa, the debtor contracted to have aluminum siding placed on her home which was financed through a local lending agency. In due course she invoked the provisions of the Act, tendered the return of the siding and for a while continued to make the monthly payments on the mortgage. The creditor ignored her notice of rescission and effected a foreclosure proceeding when she quit making the monthly payments. The issue on appeal was the propriety of the trial court’s money judgment against her and the judgment lien placed on her property. The appellate court reversed and declared that by virtue of Mrs. Sosa’s tender of the siding and the creditor’s refusal to accept the same the indebtedness was forfeited. In Sosa the court did not have to address the issue of whether tender was a condition to rescission because tender did in fact accompany the debtor’s notice of rescission.

In Gerasta the debtors (husband and wife) placed a second mortgage on their home to secure improvements. As in Sosa, the creditor ignored the debtors’ letter of rescission. The trial court ordered the transaction rescinded, awarded the debtors civil damages, and further declared the loan proceeds forfeited by the creditor. On appeal the court reversed as to the forfeiture portion of the judgment. In doing so it noted that not only had the creditor failed to comply with the Act (step 2, above) but the debtors had also failed to tender the loan proceeds (step 3, above) and by virtue of the latter the debtors were not entitled to retain the loan proceeds (step 4, above). The matter was remanded to give the debtors an opportunity to tender the loan proceeds as a condition to forfeiture.

In Powers the debtors (husband and wife) placed a home improvement loan on their home in which a part of the loan proceeds was advanced on their behalf by the lending agency to satisfy other creditors. The debtors tendered only that part of the loan proceeds that was attributable to the improvements to their home and refused to tender the sums that had been paid to other creditors. On that portion of the judgment that is pertinent here, the trial judge ordered the home improvements vested in the debtors without further obligation to repay the funds advanced to other creditors. On appeal the court concluded that the refusal of the debtors to tender all of the loan proceeds constituted an anticipatory breach on their part (step 3, above) which, in equity, entitled the lending agency to retain previous payments made on the loan and its security interest. The court, however, remanded the matter to permit the debtors to make the appropriate tender. In reversing as to the forfeiture the court ruled:

“We may well have been too technical in considering whether or not there was an anticipatory breach of contract under traditional contract principles. Rescission is an equitable doctrine, and there is nothing in the statutory provision of the right of rescission or in § 1635(b)’s provision of the procedural steps in effecting the right of rescission which limits the power of a court of equity to circumscribe the right of rescission to avoid the perpetration of stark inequity or to require that that be done now which ought to have been done in the first place. Section 1635(b), in its provision of a sequence of events, may work well in the normal case when both parties are properly advised and acting in full recognition of their rights and obligations. But surely the Congress did not intend to require a lender to relinquish its security interest when it is now known that the borrowers did not intend and were not prepared to tender restitution of the funds expended by the lender in discharging the prior obligations of the borrowers. In equity, the lender here was entitled to the protection of the bank’s earlier first mortgage and of the tax lien which it discharged. If it did not promptly satisfy and release its new mortgage, the penalty should not have been a release of the borrowers from an obligation of restitution which they were unprepared to discharge in the first place and had no intention of attempting to do so. The district court, and we, exercising traditional equity powers, may condition the borrowers’ continuing right of rescission upon their tender to the lender of all of the funds spent by the lender in discharging the earlier indebtedness of the borrowers as well as the value of the home improvements.” Powers, supra, at 1221.

In Mitchell the debtor sought, inter alia, to have the obligation forfeited by the creditor. The question of whether tender of the loan proceeds by the debtor is a condition to rescission would appear to be squarely presented. In an appeal holding that tender is a condition to rescission, the court stated: (464 F.Supp. 650, 652)

“In the present case the ‘property’ of the creditor is the $3,615.00 loan. It seems that return of the principal upon the rescission of the agreement would also be consistent with the statutory goal of returning the parties to the status quo before they entered into the contract.
* * * * * *
“This Court finds the Gerasta case controlling and holds that plaintiffs must return the principal to defendants as a condition of rescission pursuant to § 1635(b).”

However, as we will hereinafter observe, the court is actually referring to a condition to forfeiture rather than rescission.

In addition to the above authorities, there are two recent cases which warrant consideration. In Harris v. Tower Loan of Mississippi, Inc., 609 F.2d 120 (5th Cir. 1980), the creditor appealed a district court’s decision which (1) ordered the return to the debtor of sums previously paid by her and (2) also allowed the debtor to retain the balance of the loan proceeds. The issue presented on appeal was whether the creditor must first return all sums previously paid by the debt- or and then at a later date expect the debtor to tender the loan proceeds or whether the creditor could offset the value owed to it by the debtor from the sums it (creditor) initially tenders to the debtor. In remanding to permit offset the court stated: (609 F.2d 120, 123)

“Nothing in section 1635(b) prevents the creditor from offsetting the value owed to it by the obligor from the sum it initially tenders to the obligor. Such an arrangement prevents a perfunctory exchange of funds and protects the lender from a dissipation of the money while it is in the hands of the obligor. We believe this to be an acceptable course because it is the only means to insure the accomplishment of the congressional purpose of restoring the parties to the status quo ante while affording the statutory remedies to the obligor.
“We recognize that the statutory language and language from Sosa v. Fite, 498 F.2d 114 (5th Cir. 1974) and Gerasta, 575 F.2d at 584, can be read as envisaging performance of obligations by the creditor followed in time by tender of the loan proceeds by the obligor. Gerasta also foreclosed an argument that the creditor’s duties are conditioned upon tender by the obligor. Id. at 585. Nevertheless, this procedure for offsetting does not conflict with the spirit of those decisions. It will accelerate complete rescission while protecting creditors in appropriate cases. Our approval of offsetting does not conflict with Gerasta’s disapproval of conditional rescission in that we do not permit a creditor to refuse to perform unless or until the obligor tenders payment. The creditor must perform but is permitted to minimize losses from those borrowers who would eventually fail to tender the loan proceeds. We reaffirm the statutory language and the holding in Sosa that the creditor loses any rights in property unaccepted ten days after tender by the obligor.”

In Bustamante v. First Federal S. & L. Ass’n., etc., 619 F.2d 360 (5th Cir. 1980), the debtors contended that they were entitled to (1) rescission of the loan transaction, and (2) retention of the loan proceeds. During the course of the proceeding they (debtors) tendered only the monthly payments as they became due. The trial court denied the debtors’ claims on both of these issues. In reversing as to rescission and affirming as to forfeiture, the appellate court stated: (619 F.2d 360, 364)

“Although the trial court did not explicitly address the issue of materiality of the violation, it did hold that appellants had no right of rescission. Such a holding was clearly erroneous in view of the significant materiality of the understated APR.
“We have determined that the Busta-mantes properly exercised their right to rescind the transaction, since the Busta-mantes were not given an accurate disclosure of the APR. After the Bustamantes gave proper notice of rescission, First Federal did not perform its statutorily prescribed duties triggered by the notice under the Act, allegedly because the Savings and Loan Association was uncertain whether any error committed by it was a material violation under section 1635(a). The Bustamantes now argue that First Federal forfeited its right to recover the proceeds of the loan it had delivered to the borrowers because First Federal did not perform those duties. Because we find that the Bustamantes also did not perform their statutory duty to tender the monies already received, their forfeiture argument is without merit.”

Our appreciation of the above authorities leads us to the conclusion that when the court speaks of rescission it has reference to the loan transaction insofar as the same pertains to finance and other charges and the security instrument itself. On the other hand, when the court speaks of forfeiture, it has reference to the underlying obligation, that is the loan proceeds themselves stripped of the above. Even in the event of rescission, the debtor is still obligated to the creditor for the amount of the loan proceeds and this obligation remains until tender is made and refused. Tender does not affect rescission. Rescission is occasioned by a violation of the disclosure provisions of the Act. Within this general context the cases cited hereinabove appear to set forth a pattern of interpretation and applicability of the Act.

Sosa is the clearest example of rescission, tender, and forfeiture. Gerasta permitted rescission but denied forfeiture for lack of tender. Powers appears to have extended the equity approach of Gerasta, but unlike the latter declined to rescind on the showing that the debtors had no intention of making full tender. The facts in Mitchell clearly dictate the conclusion that while the court is speaking of “rescission” it is actually determining the issue of “forfeiture”. The loan agreement was rescinded by agreement. (464 F.Supp. 650, 652.) Plaintiffs were seeking to retain the loan proceeds without tender. Bustamante is the latest Federal authority we have cited and it clearly makes the distinction between rescission and forfeiture. It granted the former and denied the latter.

While these Federal authorities are not 'binding on State courts, we have reviewed them somewhat in detail because the greater bulk of litigation in this area, as expected, is in the Federal forum. We find them to be of persuasive assistance to us in our endeavor to resolve legislative intent under varying circumstances.

The only Louisiana appellate authority on the issue of rescission versus forfeiture our research has disclosed is Anderson v. Lester, 382 So.2d 1019 (La.App. 3rd Cir. 1980). In Anderson the court, citing Gerasta, clearly established that forfeiture not rescission is conditioned on tender. We think Anderson is a proper application of the Act and we choose to follow its holding.

Returning to the case now before us, the trial court erred in refusing to order rescission when it had found a disclosure violation. While its holding would have no bearing on the cancellation of the mortgage, because it was cancelled by consent to permit the private sale rendering that question moot, it does have a bearing on the interest (29.81%) and attorney’s fees (25%) provided for in the note and for which the judge a quo granted judgment in favor of the creditor. Section (b) of the Act provides that when the obligor exercises his right to rescind, he is not liable for “any finance or other charges”. (Step 1, above.) The judgment of the trial court on these two items should therefore be reversed.

On the issue as to forfeiture, we find that Jackson is not entitled to retain the loan proceeds. These proceeds amounted to $2,785.92. After a credit of $200.00, he was obliged to tender the sum of $2,585.92. The amount placed in the registry of the court following the private sale was $2,385.92. This deposit was further depleted by the withdrawal of $500.00 to satisfy the separate claim of Mrs. Jackson. Assuming that the September 27, 1977 tender of the proceeds of the private sale was a continuing one, there never were sufficient funds* on deposit to constitute full tender. The question, then, is what is his liability to Canal Mortgage?

Section (b) of the Act (step 3, above) requires that the obligor “shall tender the property to the creditor”, upon the creditor’s performance of its obligations under the Act. For the purpose of resolving the present and respective rights of the parties, we consider that the obligation of the creditor to terminate its security interest was satisfied on October 17, 1977, when its mortgage was cancelled to permit the private sale. From that date forward Jackson was obliged to make his tender. He did not. For this reason we hold him (Jackson) responsible for the sum of $2,585.92 ($2,785.92 minus $200.00) plus legal interest thereon from the date of rescission (August 27, 1976) until paid. His obligation, however, is to be offset by the award of civil penalties ($1,000.00) and attorney’s fees in the amount hereinafter set, together with legal interest thereon from date of rescission (August 27, 1976) until paid. This matter will be remanded to the trial court to effect the above accounting between the parties together with the disbursal of the funds on deposit and the rendition of an appropriate judgment in the event of any deficiency. We believe this disposition is a fair and reasonable one in light of the particular facts of this case and our effort to restore the parties as reasonably close to the status quo as the given circumstances permit.

As noted above, Jackson complains of the inadequacy of the $250.00 award for attorney’s fees. The record reflects that his attorney devoted some 53 hours to this matter. However, our review of counsel’s time sheet discloses that a fair portion of this time involved conversations with Mrs. Jackson’s attorney and the complications that arose as to her intervention and the necessity for her consent to the private sale. In making the award of $250.00 for attorney’s fees the trial judge noted, and the record confirms, that both summary judgments were submitted on stipulations of facts and that counsel for the creditor appeared cooperative. With due consideration for these factors, we find the award to be inadequate and increase the same to $500.00.

For the above reasons the judgment of the of the district court is reversed insofar as the same awarded judgment in favor of Canal Mortgage and Finance Company in the sum of $3,007.40, together with interest thereon at the rate of 29.81% per annum from date of judicial demand, not to exceed 8% per annum on any amount paid one year or more after contractual maturity and 25% of principal and interest due as attorney’s fees. Judgment is rendered herein in favor of Canal Mortgage and Finance Company and against Leon Jackson in the sum of $2,585.92, together with legal interest thereon from August 27, 1976 until paid. Judgment is further rendered herein decreeing the loan transaction of December 29, 1976 rescinded; the judgment of the district court as to attorney’s fees is amended to increase the same to $500.00 together with legal interest thereon from August 27, 1976 until paid; and the judgment as to $1,000.00 civil damages awarded Leon Jackson is affirmed.

This matter is remanded to the trial court for disposition of the funds on deposit in accordance with the views herein expressed and for the further rendition of any judgment thereafter necessitated by any deficiency.

All costs relating to this appeal are assessed against the appellee, Canal Mortgage and Finance Company. All other costs are assessed as decreed by the trial judge.

REVERSED IN PART, AFFIRMED IN PART, AMENDED, RENDERED AND REMANDED.

      . In actuality it was a debt consolidation loan. Of the $2,785.92 loaned to Jackson, he only received the sum of $33.13. The remainder of the funds were • paid on his behalf to other creditors.

      . He made one payment of $200.00 after suit was filed.

      . U.S.C. § 1635(a) states:
      “Except as otherwise provided in this section, in the case of any consumer credit transaction in which a security interest, including any such interest arising by operation of law, is or will be retained or acquired in any real property which is used or is expected to be used as the residence of the person to whom credit is extended, the obligor shall have the right to rescind the transaction until midnight of the third business day following the consummation of the transaction or the delivery of the disclosures required under this section and all other material disclosures required under this part, whichever is later, by notifying the creditor, in accordance with regulations of the Board, of his intention to do so. The creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section. The creditor shall also provide, in accordance with regulations of the Board, an adequate opportunity to the obligor to exercise his right to rescind any transaction subject to this section.”

      . This included payments to the first mortgagee, delinquent insurance payments and a tax lien.

      . The plaintiffs were apparently relying on the dissent in Powers v. Sims and Levin, 542 F.2d 1216, 1222 (1976).

      . State v. Selman, 300 So.2d 467 (La.1974); Morris v. Transworld Drilling Co., 365 So.2d 46 (La.App. 3rd Cir. 1978); Bromley v. Crisp, 61 F.2d 1351 (10th Cir. 1977).

      . Our reason for selecting August 27, 1976 as the date to commence the accrual of legal interest as to both parties is that neither party complied with the provisions of the Act. We are satisfied that Jackson, while talking tender, failed to make any showing that he ever intended to make full tender.

      . This sum included interest to which the creditor is not entitled by virtue of the rescission of the loan transaction. 15 U.S.C. § 1635(b).


author: SAMUEL, Judge. REDMANN, Judge,

text:
    A. D. FREEMAN v. John T. COOPER.
    No. 11060.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 9, 1980.
    Rehearing Denied Dec. 19, 1980.

      Satterlee, Mestayer & Freeman, Charlotte A. Hayes, New Orleans, for plaintiff-appellee.
    Before SAMUEL, REDMANN and SARTAIN, JJ.
   SAMUEL, Judge.

Plaintiff, A. D. Freeman, filed this suit for damages resulting from an alleged libel. The defendant answered, denying liability and affirmatively pleading the truth of the statements made by him, lack of injury to plaintiff as a result of the statements, and qualified privilege because the statements were made in defendant’s capacity as an attorney in a judicial proceeding. In addition, defendant filed exceptions of no cause of action which the court referred to the merits.

After a trial on the merits, judgment was rendered in favor of plaintiff in the amount of $1,500. Defendant has appealed.

Defendant and his wife were engaged in domestic litigation. The proceedings were hotly contested, and the record reveals a great deal of bitterness between them. Plaintiff is the attorney for defendant’s wife. Defendant, an attorney, represented himself in the domestic litigation and also represents himself in the present suit.

Defendant originally filed suit for separation from bed and board. Ancillary to that proceeding a judgment was rendered ordering him to make child support payments to his wife and affording him visitation privileges with his son. Subsequently, the defendant voluntarily dismissed his separation suit. The trial judge’s action in dismissing the separation suit was upheld by this court and by the Supreme Court in response to the wife’s application for supervisory writs to each court.

A short time after the denial of these writs, the wife’s attorney, plaintiff in this proceeding, filed a motion in the separation proceeding by which defendant’s visitation privileges were suspended ex parte. The motion also sought to have the defendant show cause why the unpaid alimony and child support should not be made executory and why he should not be held in contempt. This motion was filed on May 31, 1978, and it was signed by the trial judge, ex parte, on June 2, 1978. The trial judge vacated his order and restored visitation privileges to defendant on June 30, 1978.

The alleged libel took place in a memorandum filed by defendant in response to his wife’s rule to have alimony and child support made executory and to hold him in contempt. The basis of his defense to this rule was that the judgment ordering him to pay alimony and child support automatically fell when the separation action was dismissed, since the alimony and child support judgment was ancillary to the separation proceeding. His position was that his wife should have filed a new motion for support in a then pending divorce action. Defendant could find no Louisiana authority for his position, but he cited several cases from other jurisdictions which support the result espoused by him.

The following statements in defendant’s memorandum form the basis for this libel suit:

“Apparently Mr. Freeman and Mrs. Cooper feel that they are above and beyond the law and even after having been slapped down by the Trial Court, the Court of Appeal and the Supreme Court surreptitiously slipped before your Honor a Rule Nisi for contempt, etc., knowing that your Honor had only recently been sworn in and could not know any of the background in regard to this matter
"... Mr. Freeman did not bother to advise you of the true status of this matter in fear that your Honor would tell him that even though he may not believe in the judicial system of our State, that your Honor does and refused to sign the order. It is respectfully submitted that the behavior of Mr. Freeman is contemptuous to the dignity of this Honorable Court.”
“. . . even in the rule filed by Freeman, he again lied to the Court in regard to the visitation privileges for in his Rule Nisi, he stated that .... ”
“.... Of course, Freeman and Mrs. Cooper being outside of the law do not concern themselves about that.”
“.... Apparently Freeman and Mrs. Cooper have some fetish about hanging on to a dead law suit rather than go forward on their own and exercise whatever rights they have under the law. It is respectfully submitted that is what they should have done in the first place rather than surreptitiously attempt to take advantage of your Honor’s recent ascension to the bench.”

Procedurally, two issues are presented for our consideration. The first is whether the trial judge committed error by granting plaintiff’s motion for protective relief filed in response to defendant’s attempt to depose him and defendant’s wife the day before the trial. The trial had been continued on one previous occasion, and there had been ample opportunity for defendant to take depositions prior to trial. Accordingly, we conclude the trial judge acted within his discretion in signing the protective order and refusing to continue the trial for depositions.

The second issue involves the two exceptions of no cause of action filed by the defendant, one to the original petition and the other to a supplemental petition. Defendant argues those exceptions should have been maintained because the petitions fail to state a cause of action as a result of the fact that they do not allege defendant’s alleged libelous statements were immaterial and without probable cause. He relies on the case of Viera v. Kwik Home Services, Inc. in which this court, in response to an application for supervisory writs made prior to trial on the merits, set aside a trial court judgment overruling an exception of no cause of action and remanded the matter for amendment to the pleadings on the ground that the petition in reconvention (for damages resulting from libelous statements) did not allege the statements were immaterial and made without probable cause and with malice. The Viera court held that in the absence of such allegations a cause of action for libel has not been stated.

Viera has been criticized in subsequent jurisprudence and while the Supreme Court of Louisiana denied writs, three of the seven justices dissented and were of the opinion writs should be granted. However, assuming arguendo this Viera holding is correct, we do not agree with the defendant on this issue.

The two exceptions in this case were filed on the same day, approximately SVz months prior to trial on the merits. The record does not reveal that those exceptions were ever set for trial, nor does it reveal that any attempt was made to set them for trial. On the day set for trial on the merits, and prior to the commencement of the taking of evidence, the defendant argued both the exceptions and his request to take a deposition the day before trial, which request had been refused. The court held that the deposition had been sought too late and, because the case had been one of long standing (due, at least in part, to delaying tactics on the part of the defendant), referred the exceptions to the merits.

While Code of Civil Procedure Article 929 provides the peremptory exception, when pleaded before answer, shall be tried and decided in advance of the trial of the case, the trial judge does have some discretion in enforcing this provision and, under all of the circumstances here, especially since the defendant pleaded materiality and probable cause as a defense, thus making his two exceptions somewhat academic, we find no abuse of that discretion. Nor do we find any error in the fact that the trial judge decided the case on the merits, rather than on the two exceptions, following a trial on the merits at which the litigants were given a full opportunity to present evidence as to all the facts involved. In fact, we approve of that procedure. To have maintained the exceptions after trial on the merits would have resulted only in giving the plaintiff an opportunity to amend and then, after amendment, either having the matter submitted on the evidence already taken or going through the motions of hearing that same evidence over again.

We also proceed to the merits under the added authority of Code of Civil Procedure Article 2164 which, in pertinent part, states: “The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal.”

The defenses on the merits may be grouped into three sub-parts. First, defendant argues the statements were true. Next, he contends that even if they were not true he is protected by a qualified privilege because the statements were made in a legal proceeding by him as an attorney. Third, he argues plaintiff was not damaged by his statements.

The record does not disclose that plaintiff either lied to the trial court or that he acted surreptitiously or in an unprofessional manner. Acting on behalf of his client, plaintiff stated in the motion that visitation should be suspended because defendant failed to pay alimony and child support, because the wife lacked the funds necessary to buy clothes for the child to send him by airplane from Charleston, Illinois (where she then lived) to New Orleans, and that she did not have the means to transport the child to the airport, since she was without an automobile.

There is no question that defendant was delinquent in the alimony and child support payments he was ordered to pay in the separation suit. Mrs. Cooper testified she lacked funds and told plaintiff she was without sufficient money and transportation to allow her at that time to bring the child to the airport. These statements were the basis for the motion filed by plaintiff in the trial court, and we find no error in the trial court’s conclusion that plaintiff acted in good faith in making these statements in the motion, even though defendant claims the child had clothes and Mrs. Cooper had access to an automobile in Illinois. Obviously, an attorney cannot be found at fault solely on the ground that he accepts as true statements made to him by his client and alleges the same in the pleadings he files, even though the statements subsequently prove to be false.

We also find no merit in defendant’s argument that plaintiff acted surreptitiously in dealing with the trial judge. Defendant’s own exhibit, the motion filed by plaintiff to suspend visitation privileges and to make alimony and child support executory, shows on its face it was filed with the clerk on May 31, 1978 and was not acted upon by the trial judge until June 2,1978. The only conclusion which we can reach from this unexplained difference in dates is that the clerk transmitted the motion to the trial judge in the usual course of the court’s business. There is no evidence of any surreptitious statements by plaintiff to the trial judge.

Nor do we find that plaintiff acted surreptitiously or in an unprofessional manner by filing the rule for executory alimony and for contempt in the separation proceeding after it had been dismissed and the dismissal had been maintained by this court and the Supreme Court. Defendant, by his own admission, states there is no Louisiana authority on the question of whether his voluntary dismissal of the separation suit caused the judgment of alimony and child support rendered in that proceeding to fall automatically. Even if that dismissal actually did have that result, in the absence of Louisiana authority to the contrary, we can conclude only that plaintiff was acting as an advocate in the best interest of his client, and within the limits of the law, by attempting to have the unpaid alimony and child support made executory in the original suit. Thus, plaintiff did not act improperly in this respect. We conclude that defendant’s statements about plaintiff in the memorandum are not true.

Likewise, the defense of qualified privilege is not meritorious. In Louisiana an absolute privilege applies to relevant statements made by a witness who is not a party in a judicial proceeding. However, statements by a party or his attorney in a judicial proceeding enjoy only a qualified privilege. Such statements only enjoy a privilege if they are relevant to the subject matter and are made with probable cause and without malice. The statements complained of by plaintiff demonstrate on their face that the assertions of plaintiff’s alleged lies and unprofessional conduct lacked probable cause and were made in a malicious manner since they were unrelated to the legal point at issue. Defendant was upset and personally involved in the proceeding, the contributing factors to his intemperate language. However, statements made by a person who is in a state of excitement or upset, if otherwise libelous, are not justified by his mental or emotional state at the time. We conclude defendant’s statements did not enjoy a qualified privilege.

Finally, we consider defendant’s argument that plaintiff sustained no damage. No actual or pecuniary damages were proved. Plaintiff testified only that he was teased by deputy clerks about the proceeding, but he did not specifically connect defendant’s statements in the memorandum with the teasing by the clerks. Further, plaintiff did not produce testimony to show his professional reputation had been injured in the eyes of the court.

In a suit for libel, no special damages need be proved, and actual pecuniary loss is not the sole rule for assessment of damages. On the contrary, mental suffering alone, or only injured feelings which must inevitably be inferred from libelous statements, can be made the basis of a damage award.

No actual or pecuniary loss having been shown by plaintiff, the trial judge’s award had to be limited to compensation for mental suffering or injured feelings. That award of $1,500 is within the “much discretion” in assessing damages afforded him by Civil Code Article 1934(3) and the jurisprudence thereunder.

For the reasons assigned, the judgment appealed from is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

If plaintiff, as wife’s counsel in the visitation problem, had interrogated defendant on the witness stand, “Is it not a fact that your wife could not even transport your son to the airport for lack of funds?”, and defendant had responded, “That is a lie,” plaintiff would not be entitled to damages for defamation notwithstanding the harshness of the expression of the point of view.

The worst statement by defendant is that plaintiff lied in the rule he filed. But that statement is responsive to the rule and defendant had probable cause (the wife’s deposition that she had free use of Dr. Jones’s automobile) to brand false the rule’s assertion that without child support (coming due after the husband’s whole suit was voluntarily dismissed) the wife could not transport the child to the airport.

Thus that statement was privileged because both relevant and made with probable cause. So were the others complained of, although also too strongly worded. I would therefore reverse.

      . Defendant also pled as affirmative defenses the various elements of qualified privilege.

      . LSA-C.C.P. Art. 1426(1).

      . La.App., 266 So.2d 732.

      . 263 La. 368, 268 So.2d 258.

      . See Comment (b) under LSA-C.C.P. Art. 929.

      . We pass no opinion on the merits of this legal point.

      . Oakes v. Walther, 179 La. 365, 154 So. 26; Burke v. Ryan, 36 La.Ann. 951.

      . Waldo v. Morrison, 220 La. 1006, 58 So.2d 210; Sabine Tram Co. v. Jurgens, 143 La. 1092, 79 So. 872; Lescale. v. Joseph Schwartz Co., 116 La. 293, 40 So. 708; Lees v. Smith, La. App., 363 So.2d 974; Foster v. McClain, La. App., 251 So.2d 179; Jones v. Davis, La.App., 233 So.2d 310; Oakes v. Alexander, La.App., 135 So.2d 513.

      . Gladney v. deBretton, 218 La. 296, 49 So.2d 18.

        . Kennedy v. Item Co., 213 La. 347, 34 So.2d 886; Santana v. Item Co., 192 La. 819, 189 So. 442; Tuyes v. Chambers, 144 La. 723, 81 So. 265; Jozsa v. Moroney, 125 La. 813, 51 So. 908; Chretien v. F. W. Woolworth Company, La. App., 160 So.2d 854; Johnson v. Crow, La. App., 158 So. 857.