text:
    Ginger HUDMAN v. CENTURY 21 CENTRAL, REALTORS.
    No. 14597.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    James B. Thompson, III, Baton Rouge, for plaintiff-appellee Ginger Hudman.
    Steven L. Mayer, Baton Rouge, for defendant-appellant Century 21 Central, Realtors.

      Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by Ginger Hud-man against Century 21 Central, Realtors, Baton Rouge, Louisiana, for commissions and compensation she claims she is entitled to as former sales manager for defendant. Defendant filed a reconventional demand with respect to past overpayment to plaintiff on one transaction, which amount is not seriously questioned. The trial court awarded Mrs. Hudman the sum of $4,412.69 less $162.32 due defendant in its reconventional demand. Defendant appealed contending plaintiff was not entitled to judgment in any sum, and plaintiff answered the appeal contending she was entitled to the additional sum of $806.25 as commission on a sale of Lot 128-A in Avalon Subdivision.

We agree with the trial court that plaintiff’s claim for a commission on the lot in Avalon Subdivision was not sufficiently proven. Accordingly, we affirm the action of the trial court in denying that claim.

The claim in the sum of $4,412.69 for compensation presents an entirely different problem.

In January 1978 Ms. Hudman, who had been working in real estate for seven or eight years, was hired by Century 21 Central, Realtors, as sales manager. The record establishes that a sales manager of a real estate agency has the duties of recruiting, training, supervising, and lending advice to sales agents for the firm. Normally, she is not to compete with the sales agents for commissions, but is to serve in a supervisory capacity. Ms. Hudman was hired as sales manager of the defendant firm by verbal contract. It was clearly understood by Ms. Hudman that she was not to sell property, with the exception mentioned below, and that she was to hire, supervise, and advise sales agents, who were to handle the sales themselves. There was one exception, in special cases with express approval of the higher management, she was to arrange and handle for the sale of property herself, and receive a sales commission for so doing.

The agreement of Ms. Hudman and Century 21 Central with respect to compensation was that Ms. Hudman was to receive a salary as sales manager of $1,200.00 per month for six months, and thereafter, she was to receive 10% of “company dollar”, that is, the sum retained by Century 21 Central as commissions after paying sales and listing agents and other overhead expenses. The testimony shows that at the time the parties entered into the contract of employment no mention was made of what was to be done with regard to sales that were pending by virtue of the fact that purchase agreements had been signed, but in which final closing papers had not been executed at the time of termination.

On or about May 31, 1979, Ms. Hudman’s employment was terminated. At that time many properties were subject to purchase agreements that had not been carried to final closings. The sales of these properties were later closed. Ms. Hudman upon her termination, was paid only for those sales that had actually been closed before her employment was terminated. In the present suit, Ms. Hudman seeks compensation based on 10% of company dollar on sales subject to purchase agreements executed before her employment terminated that were closed after her employment terminated.

As stated in the verbal contract of employment the parties had no agreement with respect to the effect of termination of employment upon compensation for company dollar received on properties subject to purchase agreements before termination but as to which the closings themselves were executed after termination.

Articles 1964, 1965, and 1966 of the Louisiana Civil Code govern what is to be due when a contract is silent on a particular facet of its terms:

“Art. 1964. Equity, usage and law supply such incidents only as the parties may reasonably be supposed to have been silent upon from a knowledge that they would be supplied from one of these sources.
“Art. 1965. The equity intended by this rule is founded in the Christian principle not to do unto others that which we would not wish others should do unto us; and on the moral maxim of the law that no one ought to enrich himself at the expense of another. When the law of the land, and that which the parties have made for themselves by their contract, are silent, courts must apply these principles to determine what ought to be incidents to a contract, which are required by equity.
“Art. 1966. By the word usage mentioned in the preceding articles, is meant that which is generally practiced in affairs of the same nature with that which forms the subject of the contract.
“House rent in some cities is generally paid by the month; in others by the quarter. In a contract for the hire of a house, without expressing when the rent was to be paid, the deficiency would be supplied by proof of the usage, but if a contrary intent appear in the contract, the usage would not contravene it.”

Applying those codal articles, the trial court in written reasons for judgment stated in part:

“While the defendant presented several witnesses who indicated that it was not customary for the sales manager to share in sales completed after the association was severed, these witnesses agreed that the arrangement under which they operated had agreements covering this point. It seems to this court that equity would dictate that the plaintiff should receive this service fee in the absence of a specific provision to the contrary.”

The first sentence of the court’s reasons quoted above necessarily implies that the testimony established that it was the custom (or usage) in the business that a sales manager would not be paid for sales pending but not closed until after termination of the employment. We do not find that the testimony of these witnesses supports this conclusion, because it clearly fails to establish a custom or usage in the real estate agency business on that particular point one way or the other, either locally in the Baton Rouge area or state-wide.

However, we find no fault in the trial court’s finding that equity required recovery by Ms. Hudman under the facts of the present case. The facts supporting such recovery are many. At the time Ms. Hud-man was hired, Century 21 Central was a relatively new real estate firm having only four or five sales agents. At the time Ms. Hudman was terminated, Century 21 Central had twenty-five full and part-time sales agents. The additional sales agents were recruited and trained almost totally through the efforts of Ms. Hudman. Furthermore, she gave detailed advice and instructions to the sales agents throughout the sales process. It appears for these reasons Ms. Hudman’s efforts were instrumental in obtaining most of the purchase agreements. Furthermore, it might be noted Ms. Hudman brought her former clients to the firm, whom in many cases she did not herself do business with directly apparently because of her agreement not to compete for commissions with sales agents. Sales agents are clearly by law and custom entitled to receive a commission on partly closed transactions, if they are the procuring cause of the sale. We find from the facts of this case that equity dictates a recovery by Ms. Hudman, her many and varied activities having been the procuring cause of the sales pending in the present case.

The clear testimony at the trial establishes company dollar for the transactions in question of $27,858.23. Ten percent of that amount would come to $2,785.82, not $4,412.69, as was awarded by the trial court.

Accordingly, the judgment of the trial court is amended to reduce the judgment in favor of Ms. Hudman and against Century 21 Central, Realtors from the sum of $4,412.69 to $2,785.82. Judgment on the reconventional demand in favor of Century 21 Central, Realtors in the sum of $162.32 on its reconventional demand is affirmed. All costs shall be paid by Century 21 Central, Realtors.

AMENDED AND AFFIRMED.

      . According to defendant’s answer, its correct name is Central of Louisiana, Inc., d/b/a Century 21, Central, Realtors.

      . Ms. Hudman contends that the Avalon property constituted such an exception. However, her claim was not established by a preponderance of the evidence.

      . Cramer v. Guercio, 331 So.2d 550 (La.App. 1st Cir. 1976), 336 So.2d 908 (dissenting opinion of Lottinger, J.); Sleet v. Gray, 351 So.2d 286 (La.App. 3d Cir. 1977).


source: Caselaw Access Project

author: COLE, Judge.

license: Public Domain

text:
    Frances Joe MERTEN v. AMERICAN HOME ASSURANCE COMPANY.
    No. 14598.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Gary L. Keyser, Baton Rouge, for plaintiff-appellant Frances Joe Merten.
    Robert W. Smith, Baton Rouge, for defendant-appellee American Home Assur. Co.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

This case involves a judgment of dismissal based on the peremptory exception raising the objection of prescription. Because we agree with the trial court’s determination that the claim has prescribed, we affirm.

The record, which consists of the pleadings, a transcript of the attorneys’ argument at the hearing, and a deposition of Mr. A. J. Sartain, reflects the following facts. Plaintiff, Frances Joe Merten, was an employee of Dow Chemical Company. He and his wife, Anita Merten, were both insured under a group insurance policy provided to employees and their spouses. Mrs. Merten died on October 18, 1974. Mr. Mer-ten visited Mr. Sartain, Dow’s benefits administration manager, and informed him of Mrs. Merten’s death. He gave Mr. Sartain her death certificate and other pertinent information and stated his desire to file an insurance claim as her beneficiary. Mr. Sartain informed Mr. Merten no benefits would be available unless his wife’s death was “accidental” under the terms of the policy. Sartain testified he could not recall ever having sent the claim to Dow’s main office in Midland, Michigan. He took no further steps regarding the claim, apparently because he felt the death was not “accidental.” He put the information into a file but has since misplaced the file.

Plaintiff’s attorney submitted a claim for the death benefits on November 20, 1979 and after months of correspondence on the matter filed suit on August 21, 1980. The defendant, American Home Assurance Company, filed the peremptory exception urging the objection of prescription, and after a hearing on the matter the trial court sustained the objection and dismissed the suit.

Mr. Sartain testified Dow customarily mails a “certification of insurance” to all employees shortly after enrollment in the insurance program. This certificate gives a brief explanation of the conditions of the policy and specifically states all suits must be filed within three years after the time written proof of loss is required to be furnished. (It also states written proof of loss must be furnished within 90 days of the loss.) He testified all employees are given a booklet explaining the insurance program when they report for their first day of work. We find this testimony sufficient to establish a presumption that Mr. Merten did receive the certificate and/or insurance booklet and therefore was aware of the time limitations of the policy. If he did not receive either of these items this fact should have been established at the hearing on the exception. Since Mr. Merten did not testify at the hearing there is no evidence he did not receive these items. Therefore we have no choice but to assume he was aware of the time limitation yet failed to take any action to prosecute his claim prior to the expiration of the three-year period.

We reject appellant’s argument that because there was no delivery of the policy to Dow’s Louisiana office nor to the individual employees, the failure to file suit timely should be excused. This argument was raised in King v. Pan American Life Insurance Company, 324 So.2d 535 (La.App. 1st Cir. 1975), writ refused 1976, and was rejected by this court. There we held that the testimony established the insurer’s customary practice was to deliver the policy to the group and the group was to deliver the certificates of insurance to the individual employees. The delivery of the certificates was deemed to be adequate notice of the contents (and time limitation) of the policy. In the present ease Mr. Sartain admitted his office did not have a copy of the master policy. However, it must be noted Dow’s main office is in Midland, Michigan and there is no evidence indicating the policy was not delivered to the main office. We find it sufficient that the evidence shows the usual procedure is to mail the certificate to the insured therefore informing him of the time limitation.

Appellant relies heavily on the case of Suire v. Combined Insurance Company of America, 290 So.2d 271, (La.1974). That case held that a beneficiary who did not know of the existence of an insurance policy until eight years after the death of the insured was not bound by the time limits of the policy. Appellant argues that the same rule should apply in the present case because the beneficiary was not aware of the various terms of the policy because the policy had never been delivered. We have already stated the delivery of a certificate sufficiently informs one of the terms of the policy. Since Mr. Merten is, under the facts of this case, presumed to know the policy existed and to know its basic terms, he can not contend he is in the same position as the beneficiary in the Suire case. Although it is unfortunate he may have received erroneous information from Mr. Sartain concerning the availability of benefits, it was his responsibility to timely pursue the matter further if he had any doubts about his right to recover.

For these reasons, we affirm the trial court’s dismissal of the suit. Appellant is to pay all costs.

AFFIRMED.

      . Sartain testified the normal procedure was for the employee to provide him with the necessary information and to fill out a claim form. He would then forward the information to Dow’s main office in Midland, Michigan. The main office would then send the claim to the insurance company.

      . We note that in this case Mr. and Mrs. Mer-ten were both insured under the policy and were each other’s beneficiaries.


author: CHIASSON, Judge.

text:
    Carmen BENNETT, Individually, and as Administratrix and Natural Tutrix of her Minor Child, Melissa Marie Bennett v. INDUSTRIAL WELDING AND FABRICATING, INC. and Employers Insurance of Wausau.
    No. 14607.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Weldon J. Hill, II, Baton Rouge, for plaintiff-appellee Carmen Bennett, Ind., and as Administratrix and Natural Tutrix of her Minor Child, Melissa Marie Bennett.

      Richard S. Vale, Metairie, for defendants-appellants Industrial Welding and Fabricating, Inc. and Employers Insurance of Wau-sau.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Industrial Welding and Fabricating, Inc. and Employers Insurance of Wausau, defendants-appellants, appeal the trial court’s judgment awarding death benefits under the Workmen’s Compensation Act to Carmen Bennett, individually and as the Ad-ministratrix and Natural Tutrix of her minor child, Melissa Marie Bennett, plaintiff-appellee.

The tragedy which gave rise to this lawsuit occurred on the morning of January 26, 1979, when Tyrone Gay, a welder’s helper employed by Industrial Welding and Fabricating, Inc., brought a pistol onto the premises of his employer. There had been previous discussions between Mr. Gay and Jerry Bennett, a welder and co-worker of Mr. Gay, concerning the possibility of Mr. Bennett purchasing the gun from Mr. Gay. However, Mr. Gay explained to Mr. Bennett that the gun did not belong to him but was left with him as security for a loan he had made to a friend.

That afternoon, Jerry Bennett and Tyrone Gay were engaged in conversation in the shop. According to Tyrone’s testimony, the two men began discussing the game of Russian Roulette. Thereafter, Tyrone took the cartridges out of the gun, placed one bullet back in the cylinder, spun the chamber, pointed the gun at Mr. Bennett and “clicked it”. Apparently while this was taking place, Mitch Landry, Jr., both of the men’s supervisor, came into the shop and asked Mr. Bennett to weld a chair. According to Mr. Landry’s testimony, he did not notice anything unusual and began to leave the shop when he heard a click which caught his attention. As he turned around, he heard the gun discharge. Mr. Bennett was struck in the chest and subsequently died as a result of the gunshot wound.

Plaintiff-appellee, the widow of Jerry Bennett, instituted these proceedings alleging that Jerry Bennett’s legal dependents are entitled to claim the death benefits provided for under the Louisiana Workmen’s Compensation Act since her husband was shot with a pistol by Tyrone Gay, a co-worker, while in the employ of his employer and while performing services arising out of and incidental to the course of his employment on his employer’s premises in Baton Rouge. Defendants-appellants answered her suit alleging that Jerry Bennett’s dependents are precluded from compensation benefits under the provisions of La.R.S. 23:1081, since Jerry Bennett was killed while participating in an intentional game of Russian Roulette.

The trial court in awarding compensation to plaintiff-appellee held that the record did not support a finding that Mr. Bennett “made a full agreement to jeopardize himself” and that he “was not set upon a course of suicide or deliberate injury to himself.” Additionally, the trial court found the insurance company was not arbitrary and capricious in denying Mrs. Bennett’s compensation claim and consequently denied her claim for statutory penalties and attorney fees.

Defendants-appellants timely perfected the instant appeal and contend the trial court erred in finding that Jerry Bennett had not acted in an intentional manner; in finding that Jerry Bennett was in the course and scope of his employment at the time of the incident in question; and in finding that the death of Jerry Bennett arose out of his employment.

Plaintiff-appellee answered the appeal seeking statutory penalties and attorney fees allowed by the Louisiana Workmen’s Compensation Act which she avers the trial court erroneously failed to allow.

As all parties agree, the crux of the entire case is the question of Jerry Bennett’s conduct. Such a determination is a factual one made by the trial judge and can be reversed by an appellate court only upon a finding of manifest error. Crump v. Hartford Accident and Indemnity Compa ny, 367 So.2d 300 (La.1979); Cadiere v. West Gibson Products Company, Inc., 364 So.2d 998 (La.1978).

Upon our review of the record as a whole, we find that the trial court’s conclusion, that Jerry Bennett was not engaged in a willful or intentional act which would exclude his dependents from compensation benefits under La.R.S. 23:1081, is amply supported by the record and is not clearly wrong. Crump, supra; Cadiere, supra.

Mitch Landry testified the “click” occurred just as he was turning away from a conversation with Mr. Bennett, and that he heard the “click” but heard no conversation between Mr. Gay and Mr. Bennett preceding the click or the gunshot. The record affirmatively shows there was no agreement as to who would go first in this odd method of conducting “Russian Roulette.”

Additionally, the trial court’s factual determination that Employers Insurance of Wausau was not arbitrary and capricious in denying Mrs. Bennett’s claim is clearly supported by the testimony of the Claims Supervisor for Employers Insurance of Wau-sau, and we find that such conclusion by the trial court is not clearly wrong. Stubbs v. Parish of East Baton Rouge, 343 So.2d 258 (La.App. 1st Cir. 1977), writ refused.

Accordingly, we affirm the trial court’s judgment at appellants’ costs.

AFFIRMED.


text:
    LEENERTS FARMS, INC. v. Kenneth R. ROGERS, et al.
    No. 14610.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Granted May 21,1982.

      Ernest L. Parker, Bean, Rush & Parker, Lafayette, for plaintiff-appellant.
    John F. Fant, Adams, Fant & Wyche, Shreveport, for defendants-appellees.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Leenerts Farms, Inc., appeals the judgment of the trial court sustaining the exception of no cause of action filed by defendants-appellees, Kenneth R. Rogers, Crystal Winney Rogers, Joe Bob Rogers and Mary Baker Rogers.

Appellees were holders of a promissory note in the amount of $550,000.00 which was secured by a mortgage executed by the appellant herein.

Appellees, in a suit entitled Kenneth R. Rogers, et a 1. v. Leenerts Farms, Inc., sued for executory process against the appellant and an order was issued by the District Court directing the sheriff to seize and sell the mortgaged property at public sale.

On the day the property was to be sold at public auction, appellant paid to the sheriff the sum of $440,031.57 which represented full payment and which included $72,755.26 “... representing full payment of attorney’s fees called for by the promissory note.... ” The payment of attorney’s fees was made under written protest.

After such payment, appellant brought the present suit seeking One Million and No/100 ($1,000,000.00) Dollars in damages against the appellees for their alleged attempt to force the appellant to transfer mineral interests in the property in exchange for the right to pay the amount admittedly due on the promissory note and mortgage held by the appellees; for their refusal to accept a payoff under any circumstances and in attempting to improperly force the public sale of the immovable property; and for their failure to accept a tender made by the appellant and cancel and erase the mortgage from the public records as paid in full. Appellant’s petition alleges that, due to the appellees not accepting a proper payoff pending the public sale of the immovable property, he suffered damage to his credit and standing in the business community and incurred attorney’s fees and expenses in protecting his property interest and in prosecuting these proceedings.

Appellees filed an exception of no cause of action alleging that their actions were governed solely by the terms of the note and mortgage referred to by appellant and that appellant’s allegations fail to disclose any cause of action in tort or in contract or upon any other basis of liability. The trial court sustained the appellees’ exception and dismissed appellant’s suit. Appellant timely perfected the instant appeal.

The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition. All well-pleaded facts of the petition must be accepted as true, with all doubts being resolved in favor of the sufficiency of the petition to state a cause of action. Every reasonable interpretation must be accorded its language in favor of maintaining the sufficiency of the petition and affording the litigant an opportunity to present his evidence. Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Jackson v. East Baton Rouge Parish School Board, 393 So.2d 243 (La.App. 1st Cir. 1980).

The issue, therefore, in this appeal is whether appellant’s petition states a cause of action for damages or for the return of all or part of the attorney’s fees paid under protest.

If a petition states a cause of action as to any ground or portion of the demand, the exception of no cause of action must be overruled. Hero Lands Company, supra.

As to the attorney fee issue, the appellant relies on the case of People’s National Bank of New Iberia v. Smith, 360 So.2d 560 (La. App. 4th Cir. 1978) and contends that the trial court erred in concluding that a promissory note providing for attorney’s fees in the amount of 20% of principal and interest is an enforceable contract between the parties where the amount of the attorney’s work involved in collecting the note does not allegedly warrant or justify the amount of attorney’s fees provided for in the note.

The note provides that “. . . they further agree to pay all attorney’s fees incurred in the collection of this note, or any portion hereof, including interest, which fees are hereby fixed at twenty percent of the amount to be collected.”

The case of Fidelity National Bank of Baton Rouge v. Pitchford, 374 So.2d 149 (La.App. 1st Cir. 1979) is dispositive of this issue. In that case, we found the case of People’s National Bank of New Iberia, supra, to be inconsistent with the established jurisprudence of Louisiana as expressed in the Supreme Court case of W. K. Henderson Iron Works & Supply Co. v. Meriwether Supply Co., 178 La. 516, 152 So. 69 (1934). Therefore, we again hold that when the services of an attorney are necessary for the collection of an obligation which is not paid at maturity and the attorney’s fees are stipulated, the attorney’s fees become due in full when the obligation is not paid, regardless of the extent of value of such services. Fidelity National Bank of Baton Rouge, supra.

As to the cause of action for damages, while appellant does not assign as error the trial court’s dismissal of its claim for damages, we note that La.C.C.P. arts. 2340 and 2724 afford a remedy to appellant for halting the public sale of its property-

We conclude that a reasonable interpretation of the language of appellant’s petition does not entitle it to any remedy under any theory of law and, therefore, we affirm the judgment of the trial court at appellant’s costs.

AFFIRMED.

      . La.C.C.P. art. 2340:
      “The sale of the property may be prevented at any time prior to the adjudication by payment to the sheriff of the judgment, with interest and costs.”

      . La.C.C.P. art. 2724:
      “The provisions of Articles 2333 through 2335, and 2337 through 2381, relating to a sale of property under the writ of fieri facias, shall apply to a sale of property under the writ of seizure and sale.”


author: EDWARDS, Judge.

text:
    Linda MUNSON v. SAFECO INSURANCE COMPANY: Toyota Motor Sales, U. S. A., Inc.; Liberty Mutual Insurance Co.; Gulf States Toyota, Inc.; Allstate Insurance Co. and Sidney M. Brown.
    No. 14612.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      John R. Olds, Baton Rouge, for plaintiff-appellant Linda Munson.
    Arthur H. Andrews, Baton Rouge, for defendant-appellee Safeco Insurance Co.
    B. Frank Davis, Jerry L. Saporito, Me-tairie, for defendants-appellees Toyota Motor Sales, U. S. A., Inc. and Gulf States Toyota, Inc.
    Daniel R. Atkinson, Baton Rouge, for defendants-appellees Sidney M. Brown, Sr. and Allstate Insurance Co.
    Robert J. Vandaworker, Baton Rouge, for defendant-appellee Liberty Mutual Insurance Co.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

Plaintiff, Linda Munson, brought this action to recover damages for personal injuries which she sustained in an automobile accident.

Plaintiff’s petition alleged the following: At the time of the accident, plaintiff was driving an automobile which belonged to Eugene and Cristina Loehrer, with their permission. While Munson was driving the vehicle, it suddenly, and without warning, went out of control, veered off of the highway and flipped over several times. At the time of the accident, the right front wheel came off of the vehicle entirely, causing it to go out of control.

Made defendants in plaintiff’s petition were the following: Safeco Insurance Co., the Loehrers’ liability insurer; Toyota Motor Sales, U.S.A., Inc. alleged to occupy the legal position of manufacturer of the automobile; Gulf States Toyota, Inc., also alleged to be the manufacturer of the automobile; Liberty Mutual Insurance Co., the uninsured motorist insurer of plaintiff’s father; Sidney M. Brown, the person who had sold the automobile to the Loehrers approximately one month before the accident; and, Allstate Insurance Company, Brown’s liability insurer. Sidney Brown and Allstate filed a motion for summary judgment. The trial court maintained the motion and rendered judgment dismissing plaintiff’s petition as to these two defendants. Plaintiff has appealed that judgment. We reverse.

A motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogate-ries, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Emp. Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Chaisson v. Domingue, supra; Emp. Surplus Line Ins. Co. v. City of Baton Rouge, supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of summary judgment and in favor of a trial on the merits to resolve disputed facts. Chaisson v. Domingue, supra; Emp. Surplus Line Ins. Co. v. City of Baton Rouge, supra.

Plaintiff’s petition makes the following allegations with respect to the liability of Sidney Brown and Allstate:

“16.
The owners of the vehicle at the time of the accident, Eugene and Cristina Loehrer, purchased said vehicle on May 1, 1979, from Sidney M. Brown, a resident of lawful age of the Parish of West Baton Rouge, State of Louisiana.
“17.
“On information and belief, petitioner alleges that due to improper and inadequate maintenance of the said Toyota by the said Sidney M. Brown, prior to the date of sale to Eugene and Cristina Loehrer as alleged above, that the right front wheel was defective and/or improperly mounted on the vehicle, said condition caused the accident described above and, therefore, defendant Sidney M. Brown is liable for petitioner’s damages sustained.
“18.
“At all pertinent times herein, Allstate Insurance Company has issued a policy of public liability insurance to the said Sidney M. Brown, insuring against the type of liability asserted herein.”

In support of their motion for summary judgment, defendant submitted an affidavit of Sidney Brown and his daughter, Tammy Brown, as well as depositions of Linda Mun-son, Marge Loehrer, Eugene Loehrer and Cristina Loehrer. Plaintiff submitted an affidavit of Dr. Mehdy Sabbaghian, an engineer who had examined the right front wheel of the automobile which plaintiff was driving at the time of her accident.

Plaintiff alleged in her petition that the right front wheel of the vehicle came off and caused the accident. The depositions of the Loehrers indicate that none of the tires on the vehicle were changed after the purchase from Sidney Brown, with the exception of the left rear tire, which had been changed the day before the accident. The affidavit of Sidney Brown admitted that he occasionally worked on the vehicle when he owned it and that he had changed several tires on it, but did not indicate which tires he had changed. The affidavit of plaintiff’s expert, Dr. Sabbaghian, indicates that the wheel of the vehicle was loose prior to the accident. It also stated that a closer inspection and study of component parts of the wheel would be necessary to draw any conclusion as to the reason for this pre-accident looseness of the wheel. The evidence before the trial court at the time the motion for summary judgment was granted did not exclude the possibility that the right front wheel had been improperly mounted as a result of Sidney Brown’s negligence and that his negligence was the legal cause of the accident.

Defense counsel cites, and the trial court relied on, cases which hold that the seller of a used car is not required to inspect the vehicle for latent defects and is not responsible for injuries caused by their existence. See, e.g., Spillers v. Montgomery Ward & Co., Inc., 282 So.2d 546 (La.App. 2nd Cir. 1973); Cain v. Rapides Dodge, Inc., 207 So.2d 918 (La.App. 3rd Cir. 1968). However, that is not the theory upon which plaintiff asserts Brown’s liability. Plaintiff contends that Brown’s negligence in defectively or improperly mounting the wheel caused her accident. Negligent installation of a wheel by a previous owner, if it is the proximate cause of an accident which results in plaintiff’s injury, will result in the prior owner being liable to the plaintiff for injuries sustained. Panek v. Gulf Insurance Co., 341 So.2d 46 (La.App. 3rd Cir. 1976).

The affidavit and depositions filed herein establish that Brown changed some of the wheels during his period of ownership. There is no indication whether the right front wheel was one of these wheels. The depositions also establish that the right front wheel was not changed by the Loehr-ers after the sale and prior to the accident. Summary judgment was improperly granted because, on the facts before the trial court, defendants were not entitled to judgment as a matter of law.

For the foregoing reasons, the judgment of the district court is reversed. Costs of this appeal are to be paid by defendants-ap-pellees.

REVERSED.


author: LOTTINGER, Judge. PONDER, Judge,

text:
    Eddie HARLAUX, Roland Harlaux, Leon Harlaux, Lionel Harlaux, Cecil Harlaux and Stella Harlaux Manchester v. Leroy HARLAUX.
    No. 14614.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Granted May 7,1982.

      Keith B. Nordyke, Moore & Walters, Baton Rouge, for appellants-plaintiffs.
    John Wayne Jewell, New Roads, for ap-pellee-defendant.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This is a petitory action by plaintiffs, Eddie Harlaux, Roland Harlaux, Leon Har-laux, Lionel Harlaux, Cecile Harlaux and Stella Harlaux Manchester, against the defendant, Leroy Harlaux. From a judgment maintaining peremptory exceptions of prescription and no cause of action, plaintiffs have appealed.

FACTS

Plaintiffs claim that the defendant is the possessor of certain immovable property, to wit:

A certain tract of land with all the buildings and improvements thereon, situated on the Island of False River in the Parish of Pointe Coupee, State of Louisiana, fronting four and one half (4 & V2) ar-pents on said False River by a depth of forty (40) arpents, the side lines closing towards the rear according to titles, which tract of land contains One Hundred Thirty & 00/ioo (130.00) acres, more or less, and is bounded on one side by property belonging to Albert Bergeron and on the other side by property belonging to Mrs. Eustis Lebeau,

in which plaintiffs have a one-third interest and pray that the property be partitioned.

The petition alleges that the property in question was acquired by Vileor Harlaux in 1935, that Vileor Harlaux died in 1938 leaving three children, namely Adese Harlaux, Leroy Harlaux, and Pearl Harlaux, and the plaintiffs are the children and heirs of Ad-ese Harlaux. Plaintiffs claim that Adese Harlaux inherited a one-third interest in this property from his father, and as the children and heirs of Adese Harlaux plaintiffs also inherited this one-third interest.

Defendant filed an exception of no cause of action grounded on the proposition that plaintiffs failed to allege facts which prove valid title in themselves. Plaintiffs allege they are the heirs of Vileor Harlaux but failed to allege the legitimacy of their descent from Vileor Harlaux.

In sustaining the exception of no cause of action the trial judge held Succession of Brown, 388 So.2d 1151 (La.1980) applied prospectively only, and that the one year grace period granted in Act 549 of the 1980 Regular Session was inapplicable.

The exception of prescription is based on La.R.S. 9:5682 and the fact that when Vileor Harlaux died intestate in 1938, he left neither ascendants nor legitimate descendants, thus his estate was inherited by his sister Marie Louise Harlaux. Marie Louise donated a part of the subject property to defendant, Leroy Harlaux, on May 24, 1951, and Leroy Harlaux inherited the remainder of the subject property as a legatee in the Succession of Marie Louise Har-laux, No. 3735 on the Docket of the Eighteenth Judicial District Court, in and for the Parish of Pointe Coupee, Louisiana by judgment of possession dated September 7, 1951.

The trial judge held that Leroy Harlaux was a third party as to Vileor Harlaux’s succession, had held said property in excess of 10 years, and La.R.S. 9:5682 was thus applicable.

SPECIFICATION OF ERROR

In appealing plaintiffs alleged the trial judge erred in sustaining both exceptions.

PRESCRIPTION

Plaintiffs argue that the state’s interest in stable land titles as recognized in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978) “must yield to constitutional mandates,” citing Succession of Brown, supra. Continuing, they argue that Section 4 of Act 549 of 1980 establishes a new prescriptive period thus repealing that part of La.R.S. 9:5682 inconsistent therewith.

We are not convinced by plaintiffs’ argument that Section 4 of Act 549 establishes a new prescriptive period. Act 549 as it amended La.C.C. art. 208 only authorizes the proof of filiation by an unacknowledged illegitimate. La.C.C. art. 209 as amended by Act 549 sets out the methods of proving that filiation. Paragraph 5 of Article 209 establishes a time period within which a civil proceeding to prove filiation must be commenced. The civil proceeding must be brought “within six months after the death of the alleged parent, or within nineteen years of the illegitimate child’s birth, whichever occurs first.” (emphasis added)

By providing in La.C.C. art. 209 as amended that the action “must be brought . . . within nineteen years of the illegitimate child’s birth,” the legislature recognized that prior to the age of majority the child could not bring the action on his own, but that it must be brought for him, and that if same was not commenced by the age of majority, then the illegitimate had one year after reaching majority within which to bring his or her own action. We conclude that the “within six months after the death of the alleged parent” provision is merely the legislature’s way of expressing its intention to maintain stable land titles. The legislature could have provided that the action must be brought prior to the death of the alleged parent. See Lalli v. Lalli, supra.

It must be obvious even to the casual observer that of the two time limitations mentioned in La.C.C. art. 209 as amended, i.e. date of death of the parent and age of the child, only the age requirement is mentioned in Section 4 of Act 549. Thus we are of the opinion that the only intention of the legislature as expressed in Section 4 of Act 549 was to grant a one year grace period to those individuals who were older than nineteen years and could not without the grace period take advantage of Act 549. This does not mean that the six month after death provision was dispensed with during the grace period. This conclusion is reached because there is no mention of the dispensation of the death provision in favor of any child not yet eighteen, nor older than nineteen, who is not afforded the benefits of the grace period. Stated another way, if a child is ten years old, but the alleged parent has been dead for more than six months, then a suit to prove filiation cannot be commenced. We cannot conceive that the legislature would have intended a different result for someone over nineteen years visa-vis someone under nineteen years.

Though this is a petitory action and not one to prove filiation, theoretically plaintiffs seek to prove the filiation of their father (Adese) to their grandfather (Vileor). Therefore, since the grandfather has been dead for more than six months prior to the commencement of suit, they cannot avail themselves of Act 549.

Conceding arguendo that plaintiffs could avail themselves of Act 549, or even further, that filiation was conceded at the trial of this case, we are of the opinion that the one year limitation provided in Act 549 within which to bring an action to prove filiation does not supercede or replace the prescriptive period as provided in La.R.S. 9:5682. Act 549 authorizes a suit to prove filiation, whereas La.R.S. 9:5682 establishes a time period within which an heir or legatee can bring an action to assert any right, title or interest in any of the property formerly owned by the deceased. La.R.S. 9:5682 presupposes filiation already having been acknowledged or proven, whereas Act 549 authorizes proof thereof. There is no indication that the legislature by the enactment of Act 549 intended the repeal or replacement of La.R.S. 9:5682. Therefore, the trial judge was not in error in sustaining the peremptory exception of prescription.

NO CAUSE OF ACTION

Plaintiffs-appellants contend the trial judge was in error in refusing to apply Succession of Brown, supra, retroactively. We disagree. A careful reading of Succession of Brown fails to disclose any intent by the Supreme Court that its decision be applied retroactively. We agree with our brethren on the Fourth Circuit that Succession of Brown is not applied retroactively. Succession of Ross, 397 So.2d 830 (La.App. 4th Cir. 1981).

Inasmuch as we have concluded that this action has prescribed, there is no need for any further discussion of whether plaintiffs have stated a cause of action.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at appellants’ costs.

AFFIRMED.

PONDER, Judge,

dissenting.

The question is one of legislative intent.

By holding that Section 4 of Act 549 has no effect upon the requirement that the proceeding be brought within six months of the death of the alleged parent, the majority is interpreting Section 4 as though it read:

“Any illegitimate child nineteen years of age or older whose parent shall not be deceased and whose parent shall not die within six months shall have one year, etc.”

Instead, I believe that the legislature intended to remedy the constitutional defect in our law so as to allow those who had been prevented from making a claim a period of one year to do so, without regard to the date of the parent’s death. It is true that this interpretation has the effect of adding to Section 4 some such provision as, “this proceeding shall not be barred by the fact that the parent shall have been deceased by more than six months.” But I would elect to interpret the provision thus so as to right as many wrongs as reasonably possible.

I would not deny this relief simply because the statute would still leave some inequities, such as the case cited of the ten year old whose parent died a year ago. That problem could be addressed by the legislature.

The fears of instability of land titles are more imaginary than real. The gates were opened for only one year, which has now passed. There is no evidence that any flood resulted.

I therefore dissent.

      . Act 549 of the 1980 Regular Session of the Louisiana Legislature reads as follows:
      AN ACT
      To amend and reenact Articles 208 and 209 of the Louisiana Civil Code and to repeal Articles 210 and 212 of the Louisiana Civil Code to provide for proof of filiation by illegitimate children, or presumption of filiation on their behalf; to provide a procedure and time limitations for proceedings to establish filiation; to provide for the method and standard of proof in such actions; to provide that failure to institute timely such a proceeding shall bar the claims of such persons in the successions of their alleged parents; and to provide otherwise with respect thereto.
      Be it enacted by the Legislature of Louisiana:
      Section 1. Articles 208 and 209 of the Louisiana Civil Code are' hereby amended and reenacted to read as follows:
      Art. 208. Authorization to prove filiation. Illegitimate children, who have not been acknowledged as provided in Article 203, may be allowed to prove their filiation.
      Art. 209. Methods of proving filiation. 1. An illegitimate child may be entitled to a rebut-table presumption of filiation under the provisions of this Article. Or any child may establish filiation, regardless of the circumstances of conception, by a civil proceeding instituted by the child or on his behalf in the parish of his birth, or other proper venue as provided by law, within the time limitation prescribed in this Article.
      2. A child who is shown to be the child of a woman on an original certificate of birth is presumed to be the child of that woman, though the contrary may be shown by a preponderance of the evidence.
      3. An illegitimate child not shown as the child of a woman on an original certificate of birth may prove filiation by any means which establish, by a preponderance of the evidence, including acknowledgment in a testament, that he is the illegitimate child of that woman.
      4. A child of a man may prove filiation by any means which establish, by a preponderance of the evidence, including acknowledgment in a testament, that he is the child of that man. Evidence that the mother and alleged father were known as living in a state of concubinage and resided as such at the time when the child was conceived creates a rebuttable presumption of filiation between the child and the alleged father.
      5. Proof of filiation must be made by evidence of events, conduct, or other information which occurred during the lifetime of the alleged parent. A civil proceeding to establish filiation must be brought within six months after the death of the alleged parent, or within nineteen years of the illegitimate child’s birth, whichever occurs first. If an illegitimate child is born posthumously, a civil proceeding to establish filiation must be instituted within six months of its birth, unless there is a presumption of filiation as set forth in Section 2 above. If no proceeding is timely instituted, the claim of an illegitimate child or on its behalf to rights in the succession of the alleged parent shall be forever barred. The time limitation provided in this Article shall run against all persons, including minors and interdicts.
      Section 2. Articles 210 and 212 of the Louisiana Civil Code are hereby repealed.
      Section 3. This Act shall become effective upon signature by the governor or, if not signed by the governor, upon expiration of the time for bills to become law without signature by the governor, as provided by Article III, Section 18 of the Louisiana Constitution of 1974.
      Section 4. Any illegitimate child nineteen years of age or older shall have one year from the effective date of this Act to bring a civil proceeding to establish filiation under the provisions of this Act and if no such proceeding is instituted within such time, the claim of such an illegitimate child shall be forever barred.

      . La.R.S. 9:5682 provides:
      “5682. Actions by unrecognized heirs or legatees against third persons
      “A. An action by a person who is an heir or legatee of a deceased person, and who has not been recognized as such in the judgment of possession rendered in the succession of the deceased by a court of competent jurisdiction, to assert any right, title, or interest in any of the property formerly owned by the deceased against a third person who has acquired this property from or through a person recognized as an heir or legatee of the deceased in this judgment of possession, is prescribed in ten years if the third person, or his ancestors in title, singly or collectively, have been in continuous, uninterrupted, peaceable, public, and unequivocal possession of the property for such period after the registry of the judgment of possession in the conveyance records of the parish where the property is situated, irrespective of the good or bad faith of the third person’s ancestors in title, including the heir or legatee of the deceased recognized as such in the judgment of possession.
      “B. This Section establishes a liberative prescription, and shall be applied both retrospectively and prospectively; provided, however, that an action by any person against whom the period of liberative prescription herein provided would otherwise already have accrued except for the provisions of this Section, must be brought within one year from and after August 1, 1975.
      “C. As used herein, “third person” means a person other than one recognized as an heir or legatee of the deceased in the judgment of possession.”

      . Marie Louise Harlaux’s inheritance was recognized by judgment of possession in “Succession of Vileor Harlaux,” No. 2120 on the Docket of the Eighteenth Judicial District Court in and for the Parish of Pointe Coupee, Louisiana, dated January 17, 1939.

      . See Act 720 of the 1981 Regular Session of the Louisiana Legislature, which amended and reenacted La.C.C. art. 209 to provide that the suit “must be within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs.”

      . By Act 721 of the 1981 Regular Session of the Louisiana Legislature, the legislature repealed Sections 5682, 5683, and 5684 to Title 9 of the Louisiana Revised Statutes and added Sections 5630 and 5631 which reduced the time period within to bring an action to assert any right, title or interest in a succession to two years.


author: WATKINS, Judge.

text:
    STATE of Louisiana in the Interest of Gerald HICKERSON.
    No. 14637.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Denied April 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 COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal from a holding of the Family Court, East Baton Rouge, adjudicating Gerald Hickerson a delinquent (as a result of having committed the offense of attempted second degree murder in violation of LSA-R.S. 14:30.1). Hickerson was ordered committed to the Department of Corrections until he reached age 21. Hick-erson was born August 22, 1965. We affirm the adjudication but find Hickerson a delinquent as a result of having committed the lesser offense of aggravated battery (in violation of LSA-R.S. 14:34).

The witnesses’ testimony regarding the alleged offense of attempted murder is highly inconsistent both as a whole and in many instances internally within that of a single witness, and it is almost impossible for us to arrive at a correct determination of the facts. Because we hold that Hicker-son was not guilty of attempted murder, we will state the facts in a manner most favorable to the determination of possible guilt.

Hickerson and two companions, John No-well and Jimmy Hunter, drank rather heavily on the night of August 30, 1980. They walked around Valley Park for about two hours before midnight and then went to a house where a friend, Aileen, was babysitting. While in the yard Hickerson and Hunter started “slap boxing”, that is, slapping one another in the face in fun. One of the slaps accidentally hit Hickerson on the nose and he became angry. The two started arguing violently and Nowell came out of the house to break up the disturbance. He pushed the two apart. Hickerson went into the house and picked up a twelve inch knife (the combined length of the handle and blade being approximately twelve inches) and returned to the yard. The argument resumed between Hickerson and Hunter. Nowell again pushed Hickerson and Hunter apart. Hickerson, according to the testimony of one witness then said to Nowell, “If you push me again, man, I’ll stab you.” The other witness testified no such statement was made. In any event, the disturbance continued and Nowell pushed Hunter and Hickerson apart. Hick-erson stabbed Nowell in the left shoulder with the knife. Nowell was taken to Earl K. Long Hospital where he remained about a month. He is now fully recovered, apparently.

In order for an accused to be guilty of attempted murder, a specific intent to kill must be proven beyond a reasonable doubt. Although a specific intent to inflict great bodily harm may support a conviction of murder, the specific intent to inflict great bodily harm will not support a conviction of attempted murder. If it were unnecessary to prove specific intent to kill to establish attempted murder, the distinction between aggravated battery and attempted murder would in many cases lose its meaning, and in many cases an aggravated battery would become the more serious offense of attempted murder. State v. Butler, 322 So.2d 189 (La.1975).

Furthermore, as noted in Butler, under LSA-R.S. 14:27 an attempt to commit a crime involves a specific intent to commit a crime. The crime of murder is “the killing of a human being” under certain prescribed circumstances (using the analysis and emphasis as'found in Butler). Thus, a person having the specific intent to inflict great bodily harm may lack the intent to commit murder, as he does not necessarily have the intent to kill another human being.

Applying the Butler analysis to the facts of this case, we see that at most Hickerson had the specific intent to inflict great bodily harm upon Nowell. There’s nothing to show that Hickerson intended to kill Nowell. The testimony as to the alleged threat “If you push me again, man, I’ll stab you” was obtained from a witness whose testimony was self-contradictory, who had a previous record of pleading guilty to charges of burglary and theft, and whose testimony in general was unworthy of belief. However, even if that statement was made, it does not necessarily show an intent to kill, as a stabbing does not necessarily result in death. Nor does the relative nearness of the blade to the heart indicate an intention to aim for the heart. The stabbing took place in a neighborhood where there were no street lights and in a yard in which porch or outside lights were not turned on. We cannot determine whether placement of the knife was accidental or deliberate. Nor can we say that the fact that Hickerson got the knife in the house shows an intent to kill. There is some testimony that he intended to leave and go home with the knife. We question the veracity of that testimony. However, at most, going into the house and getting the knife shows an intent to stab if he was pushed again by Nowell. A stab wound would not necessarily result in death. It did not in this case. The requisite intent to kill has not been proven.

However, under the holding of the Louisiana Supreme Court in State in the Interest of Batiste, 367 So.2d 784 (La.1979), a child may be adjudged a delinquent based on a finding that the child committed a lesser offense included within the crime alleged in the petition. Hickerson was alleged, by amended petition filed before the adjudicatory trial was begun, to have committed the offense of attempted second degree murder by stabbing John Nowell in the upper chest with a butcher knife. The offense alleged includes in the present case the offense of aggravated battery (in violation of LSA-R.S. 14:34), as stabbing a victim with a butcher knife clearly is a battery committed with a dangerous weapon. Also, Batiste indicates by footnote that it is relevant for the court to take into consideration whether or not the offense committed would be a responsive verdict to the offense charged (if the juvenile were an adult) in determining whether or not the juvenile could be adjudged a delinquent for having committed a lesser offense included within a greater offense. Under art. 814 of the Code of Criminal Procedure, guilty of aggravated battery is a responsive verdict to an indictment charging an adult with attempted second degree murder. As the petition indicates that Hickerson stabbed the victim with a butcher knife, Hickerson was obviously put on notice that he could be found to have committed the offense of aggravated battery. Hence, we hold Hick-erson was correctly adjudicated a delinquent, but for having committed the offense of aggravated battery, rather than attempted second degree murder.

We remand the matter to the trial court for it to determine anew the term of commitment taking the view expressed in this opinion into consideration.

ADJUDICATION AFFIRMED, REMANDED FOR DISPOSITION.


author: LEAR, Judge.

text:
    STATE of Louisiana in the Interest of Curtis FRANCOIS.
    No. 14703.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Joseph A. Sims, Jr., Asst. Dist. Atty., Hammond, for the State.
    Thomas Frierson, Asst. Public Defender, Livingston, for defendant-appellant.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   LEAR, Judge.

On January 5, 1981, a theft of $40.00 from an automobile was reported to have occurred in Walker, Louisiana. Deputy John Bess of the Walker Police Department, after an initial investigation, located and detained Curtis Francois, a juvenile aged sixteen years old. Curtis was then taken by the deputy to the Livingston Parish Courthouse for questioning. Curtis’s mother, Elizabeth Francois, who was already at the courthouse concerning an unrelated matter, was informed that her son was being brought there for questioning concerning the “robbery”. Mrs. Francois was waiting for her son and the deputies when they arrived. Upon their arrival, Curtis, his mother and the two deputies went into a room in the courthouse and one of the deputies informed Curtis of his constitutional rights as per Miranda. Curtis then signed a consent to question form, which is in the record. Immediately thereafter Curtis was questioned and subsequently gave an oral confession which implicated him in the theft. Mrs. Francois was in the presence of her son from the time he arrived at the courthouse through the questioning and his confession.

A motion to suppress the oral inculpatory statement (confession) made by Curtis was filed in the delinquency proceeding below. The motion to suppress was denied and, after an adjudicatory hearing, the court found Curtis to be delinquent. This appeal was then filed on his behalf, challenging the admission of the oral inculpatory statement.

Article I, Section 13 of the 1974 Louisiana Constitution provides that an arrested or detained person be fully advised of his right to remain silent, his right against self-incrimination and his right to the assistance of counsel. Even before the adoption of Article I, Section 13 in 1974, these advisory warnings were mandated by the United States Supreme Court in its ruling in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). And, these principles were also held to apply to juvenile proceedings by the United States Supreme Court in the case of In Re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). In the case of State In Interest of Dino, 359 So.2d 586 (La.1978), our Supreme Court expanded on these principles as they are applied to juveniles. In Dino the Court stated that:

“Because most juveniles are not mature enough to understand their rights and are not competent to exercise them, the concepts of fundamental fairness embodied in the declaration of rights of our constitution require that juveniles not be permitted to waive constitutional rights on their own. For these reasons we hold that in order for the state to meet its heavy burden of demonstrating that a waiver is made knowingly and intelligently it must affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian or other adult interested in his welfare before he waived his right to counsel and privilege against self-incrimination, [emphasis added]
“Accordingly, the purported waiver by a juvenile must be adjudged ineffective upon the failure by the state to establish any of three prerequisites to waiver, viz., that the juvenile actually consulted with an attorney or an adult before waiver, that the attorney or adult consulted was interested in the welfare of the, juvenile, or that, if an adult other than an attorney was consulted, the adult was fully advised of the rights of the juvenile.” [emphasis added]

In Dino, the juvenile’s mother, while actually present in a separate room at the police station, was not present with or asked if she wished to be present with her son while the police questioned him. Nor was she informed of her son’s constitutional rights or given an opportunity to confer with him about whether he should waive his constitutional rights and give the police a statement.

In this present case Mrs. Francois was present with her son when he was informed of his right to remain silent and to the assistance of counsel and was present during the questioning of her son. While both she and her son testified at the motion to suppress that they were advised of these constitutional rights and understood that Curtis did not have to make a statement, that they could have requested the presence of an attorney and that they could have terminated the questioning at any time, the evidence reveals that Curtis did not actually consult with nor discuss with his mother whether these rights should be waived and whether he should make a statement to the officers. The record further indicates that neither Curtis, nor his mother, were advised that they had the right to actually consult with each other and discuss in private whether these rights should be waived and a statement given. The evidence also shows that no opportunity for consultation or discussion was afforded to Curtis and his mother prior to his waiver of his rights and questioning. In fact, Mrs. Francois testified that she did not realize or understand that she had the right to have a private consultation or discussion with her son prior to the waiver of his rights and the questioning.

In Dino the Court required an affirmative showing that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian or other adult interested in his welfare. We find that, in the absence of such a meaningful consultation (discussion) actually having taken place in private between the juvenile and an attorney and/or interested adult pi lor to a waiver, the requirement of Dino would be meaningless unless the juvenile and his attorney and/or an interested adult were advised of their right to and given the opportunity for such a private consultation.

Accordingly, the purported waiver of the juvenile must be adjudged ineffective upon the failure by the state to establish that the juvenile and his attorney and/or an informed parent, guardian or other adult interested in his welfare were both informed of their right to and were afforded an opportunity for a private consultation with each other and an intelligent and knowing waiver of this right by both the juvenile and his attorney and/or the interested adult.

We find additional support for our position in the recent case of State v. Hudson, 404 So.2d 460 (La.1981). In that case the Court affirmed the trial court’s denial of defendant’s motion to suppress his confession. An important factor in the Court’s decision in Hudson was its finding that the juvenile was afforded an opportunity to (and actually did) consult privately with his parents before making the statement to the police.

Because no consultation between the juvenile and an attorney and/or an interested adult actually occurred in this case, nor were the juvenile and, in this case, his mother informed of their right to such private consultation prior to the juvenile’s waiver of his constitutional rights and his questioning, the confession and/or inculpa-tory statement made by Curtis Francois on January 5, 1981, to officers of the Walker Police Department and/or officers of the Livingston Parish Sheriff’s Department should have been suppressed.

For the reasons assigned, the finding of delinquency and commitment of Curtis Francois is hereby vacated and this matter is remanded to the juvenile court for further proceedings not inconsistent with the views herein expressed.

VACATED AND REMANDED.


text:
    STATE of Louisiana in the Interest of Darrell WILLIAMS.
    No. 14838.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Tyronne Gibbs, Kay Howell, Greg To-nore, Asst. Dist. Attys., Baton Rouge, for plaintiff-appellee State of Louisiana.
    Kathleen Richey, Asst. Public Defender, Baton Rouge, for defendant-appellant Darrell Williams.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

The issue presented in this delinquency adjudication case is whether or not the juvenile’s confession should have been allowed into evidence. Because we find the confession was properly admitted, we affirm.

On April 12, 1981, at approximately 9:00 p. m., three young black males entered a Baton Rouge restaurant operated by Ms. Helena Wong. One of the three juveniles, later identified as Darrell Williams, held a gun on Ms. Wong while another attempted to open the cash register. When they realized the cash register could not be opened the three fled the restaurant.

On April 24, 1981, Darrell Williams was arrested without a warrant and later gave a taped statement wherein he confessed to the crime. On June 15,1981, after an adjudicatory trial, he was adjudicated delinquent for having committed the attempted armed robbery of Ms. Wong. He was committed to the custody of the Louisiana Department of Corrections on June 29, 1981, for an indefinite period of time not to exceed his twenty-first birthday. Defendant then filed this appeal.

Defendant contends the taped statement (confession) should have been suppressed for two reasons. First, he argues the arrest was made illegally and therefore the confession, obtained as a result of that arrest, is “fruit of the poisonous tree.” See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). Secondly, he maintains the police investigators who procured the confession did not follow the requirements of State in the Interest of Dino, 359 So.2d 586 (La.1978), rehearing denied 1978.

Defendant argues the arrest was illegal because there was no probable cause. Officer Greg Phares testified he had been given information by Larry Ricks, another participant in the attempted robbery, as well as by other unnamed informants. Detective Patrick Englade testified he did a follow-up investigation of the crime. He presented a “photo line-up,” consisting of photographs of five black males, to Ms. Wong. She correctly identified Darrell Williams as the youth who had held the gun on her. On the basis of the identification and the information supplied by Larry Ricks and other informants, the officers made the arrest. Recent jurisprudence has said probable cause to arrest exists when facts and circumstances within the arresting officer’s knowledge and of which he has reasonable and trustworthy information are sufficient to justify a man of average caution in the belief that the person to be arrested has committed or is committing an offense. State v. Wilkens, 364 So.2d 934 (La.1978); State v. Marks, 337 So.2d 1177 (La.1976). Although mere suspicion does not justify an arrest the officer need not have sufficient proof to convict. State v. Thomas, 349 So.2d 270 (La.1977).

Considering the detailed information supplied by Ricks implicating defendant, corroborated by the victim, as well as the victim’s identification of the defendant, we conclude the arresting officers had probable cause to arrest Darrell Williams. Therefore we reject defendant’s argument that the confession should have been excluded as a product of an illegal arrest.

Defendant’s second argument, that the investigating officers did not meet the Dino requirements, is equally without merit. The court in Dino noted “most juveniles are not mature enough to understand their rights and are not competent to exercise them,” therefore it is only fair juveniles not be allowed to waive these rights without adult supervision. The court stated, at page 594:

“For these reasons we hold that in order for the State to meet its heavy burden of demonstrating that a waiver is made knowingly and intelligently, it must affirmatively show that the juvenile engaged in a meaningful consultation with an attorney or an informed parent, guardian, or other adult interested in his welfare before he waived his right to counsel and privilege against self-incrimination.”

Defendant argues he was not allowed a meaningful consultation with an informed parent. He argues his mother, Ms. Dorothy Weston, was not properly informed of his rights before he gave the statement. Ms. Weston testified she arrived at the police station shortly after her son’s arrest and was informed of his rights by the two police officers. Detective Englade and Officer Phares both testified Darrell and his mother were informed of Darrell’s rights and they both signed a written waiver form. Unfortunately the waiver form has been misplaced and is not a part of the record. When questioned about the written waiver form Ms. Weston stated she could not recall whether or not she had signed one. Even without the waiver form we find the evidence shows Ms. Weston was informed of her son’s rights.

Defendant argues further that even if his mother was informed of his rights he was not given the chance to have a meaningful consultation with her. We note the conflicting testimony concerning this matter. Officer Phares stated that prior to taping the statement he informed Ms. Weston and Darrell of Darrell’s rights and then left them alone in the room for a few minutes so they could discuss the matter. Detective Englade testified he had no knowledge one way or the other about Ms. Weston and Darrell being left alone because he was not present at that point in the procedure. Ms. Weston testified she was not left alone with her son prior to the taping of the statement. The defendant did not testify.

The trial judge obviously found the testimony of Officer Phares to be more credible than the testimony of Ms. Weston. The trial judge is in a position to judge the credibility of witnesses and is therefore granted a great deal of discretion in this area. State v. Collins, 328 So.2d 674 (La.1976). It has been held that this general proposition applies to delinquency adjudications and the juvenile judge’s determination will not be disturbed unless found to be manifestly erroneous. In re State in Interest of Tyler, 262 So.2d 815 (La.App. 4th Cir. 1972). Therefore we will not disturb the trial court’s finding that Ms. Weston was given an opportunity to discuss this matter with her son.

For these reasons, the judgment of the trial court is affirmed. Appellant is to pay all costs.

AFFIRMED.


text:
    STATE of Louisiana in the Interest of Spencer COURTNEY. STATE of Louisiana in the Interest of Charles A. COURTNEY.
    Nos. 14900, 14901.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Writ Denied April 21,1982.
    Roy K. Burns, Jr., Sp. Prosecutor, Coving-ton, for the State.
    Michael Baham, Metairie, for appellants Charles and Spencer Courtney.
    Before CHIASSON, EDWARDS and LEAR, JJ.
   EDWARDS, Judge.

These consolidated cases raise the issue of whether the trial court correctly found two minors to be delinquents because of their participation in an altercation with a police officer.

On the night of December 31, 1980, Officer Edward Humphries of the Slidell Police Department responded to complaints that fireworks were being discharged within the Slidell city limits. Officer Humphries made two stops to request that persons shooting fireworks within the city limits refrain from doing so. When he resumed patrolling in his vehicle, he observed three individuals preparing to discharge some bottle rockets. Humphries got out of his vehicle and advised them not to shoot the fireworks. Humphries testified at trial that an inebriated white male (Toxie Courtney) shouted from inside a fenced-in yard that the property was located outside of the city limits. Humphries replied that he knew it was outside of the city limits but that they would have to refrain from shooting fireworks over into the city. Humphries testified that Courtney approached the fence with a drink in his hand, and after a discussion, threw the drink on him. At that point Humphries informed Courtney that he was under arrest for “simple battery upon a police officer.” Humphries testified that Courtney responded by cursing him and retreating further back into his yard. Apparently, Humphries had physically attempted to place Courtney under arrest because he testified that Mrs. Courtney intervened at that point and kept trying to drag her husband back across the fence.

Humphries returned to his police car and requested assistance from his office as well as the St. Tammany Parish Sheriff’s Department. Officers from both agencies arrived and Humphries advised them of what had happened and that he had placed Toxie Courtney under arrest for simple battery. A number of officers crossed the fence to take custody of Mr. Courtney, and Mrs. Courtney intervened on his behalf. At that point a melee apparently erupted, with members of the Courtney family attempting to prevent the arrest of Mr. and Mrs. Courtney. A number of members of the Courtney family, including the two juveniles, Charles and Spencer, were arrested.

The State filed petitions seeking to have Charles and Spencer Courtney adjudicated delinquents. These petitions alleged that the minors had committed the following offenses in connection with the events described above: 1) Resisting an officer, a violation of LSA-R.S. 14:108; 2) Disturbing the peace, a violation of LSA-R.S. 14:103; and 3) Simple battery, a violation of LSA-R.S. 14:35. Deputy R. S. Mills, of the St. Tammany Parish Sheriff’s Department, was named as the officer that the Courtneys allegedly resisted and battered.

Trial of the two cases was consolidated. The trial court found that the minors did commit the crime of resisting an officer, LSA-R.S. 14:108, and that Charles Courtney was guilty of committing a simple battery on Deputy Mills. The trial court found the juveniles not guilty of the other charges. The defendants were adjudicated delinquents by the trial court and released with a reprimand. The juveniles’ subsequent motions to vacate adjudication were denied.

The juveniles have appealed their adjudication as delinquents. They assert that they did not violate LSA-R.S. 14:108. The Courtneys contend that their father’s arrest was unlawful and that they had a right to resist it. Since the arrest was unlawful they argue that they were not guilty of violating LSA-R.S. 14:108.

The trial judge rejected the juveniles’ contention that an individual has the right to resist the unlawful arrest of another. The court held that the right to resist an unlawful arrest is limited to the person being arrested.

To the contrary, it is clear that Louisiana recognizes the right of a third person to resist the arrest of another, and that such conduct is not a violation of the statute.

LSA-R.S. 14:108 provides, in pertinent part, as follows:

“Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property or serving process is acting in his official capacity.”

The resistance of the unlawful arrest of another does not constitute a violation of LSA-R.S. 14:108. Under the statute, unless the arrest is lawful, no offense has been committed. The officer must be authorized by law to make a lawful arrest in order to satisfy the terms of the statute. The Reporter’s Comment to LSA-R.S. 14:108 states, in part, as follows:

“This section covers resistance by a third person or by the individual who is being arrested.”

In White v. Morris, 345 So.2d 461 (La. 1977), the Louisiana Supreme Court noted that Louisiana adheres to “the centuries old common law right to resist an unlawful arrest.” The court also recognized that this right was statutorily recognized in the language of LSA-R.S. 14:108 and LSA-C.Cr.P. art. 220. See also State v. Lindsay, 388 So.2d 781 (La.1980).

Implicit recognition of the right to resist another’s arrest is found in the Louisiana Supreme Court’s decision in State v. Smith, 352 So.2d 216 (La.1977). The two defendants in Smith were convicted of resisting an officer in connection with the arrest of a third person, Gregory Smith. Defendants contended that the search for and arrest of Gregory Smith were illegal and the officer whom they resisted was not “authorized by law to make a lawful arrest.” After setting forth the provisions of LSA-R.S. 14:108, and making an extensive factual study of the probable cause for the arrest, the court concluded:

“Therefore, since the warrantless arrest of Gregory Smith was legal the defendants’ contention that they had a right to resist, or interfere with an unlawful arrest is without merit.”

Implicit in the court’s decision is the recognition of the rule that if the arrest had been unlawful, defendants’ actions would not have violated the statute in question.

We therefore turn our attention to the action of the arresting officer whom the Courtneys were charged with resisting. Counsel for the minors alleged that Officer Humphries was acting without probable cause and outside of his jurisdiction when he attempted to arrest Toxie Courtney. We conclude that it is unnecessary to determine whether or not Humphries’ attempted arrest of the boys’ father was lawful. The State’s petition alleged that the boys had resisted and committed a battery upon Deputy Mills of the St. Tammany Sheriff’s Department. In its answer to the request for a Bill of Particulars, the State asserted that, at the time, Deputy Mills was attempting to arrest several members of the Courtney family, including: Toxie Courtney. Therefore, the lawfulness of Deputy Mills’ conduct is what must be examined.

Deputy Mills testified as follows with regard to his role in the incident: Mills went to the Courtney residence in response to Humphries’ call for assistance. Upon his arrival he noticed several individuals scuffling with Slidell police officers. Hum-phries advised Mills that Toxie Courtney had thrown a drink on him and that the officers were attempting to place him under arrest. Mills testified that when he attempted to assist the other officers, Charles Courtney “grabbed me on the arm, swung me around and he hit me right in the chest, and he broke my tie tac, and he tore the tie off my shirt.” Although Deputy Mills testified that he could not recall seeing Spencer Courtney in the scuffle, several other officers testified that Spencer likewise resisted Mills’ attempt to assist the other officers in making the arrest.

The Courtney residence is located within the confines of St. Tammany Parish. Thus, Deputy Mills was within his jurisdiction. He was informed by Officer Humphries that Toxie Courtney had thrown a drink on him. The throwing of the drink occurred prior to any effort by Humphries to arrest Courtney. Such conduct could constitute a battery, a violation of LSA-R.S. 14:35. Thus, despite any of the other surrounding circumstances, at that point Mills had reasonable cause to believe that Toxie Courtney had committed an offense and Mills had authority to effect a lawful arrest. LSA-C.Cr.P. art. 213. We conclude, therefore, that by interfering with Deputy Mills the Courtney boys intentionally resisted “an individual acting in his official capacity and authorized by law to make a lawful arrest.”

We conclude that the evidence in the record establishes, beyond a reasonable doubt, that the Courtney boys were guilty of the crime of resisting an officer, LSA-R.S. 14:108, and that Charles Courtney committed a battery in violation of LSA-R.S. 14:35. Therefore, the judgment of the trial court, adjudicating Charles Courtney and Spencer Courtney delinquents, is affirmed.

AFFIRMED.

      . The use of fireworks is lawful in St. Tammany Parish, but is prohibited within the Slidell city limits.

      . Humphries’ authority, at the time of the incident, to make an arrest outside of the Slidell city limits is challenged by the Courtneys. Humphries testified at trial that he had a commission from the St. Tammany Parish Sheriff authorizing him to make misdemeanor arrests outside the city limits. He testified that his commission was first issued in 1972 and renewed in January of 1981 by Sheriff Canulette. In a brief supporting the motion to vacate adjudication, counsel for the Courtneys alleged, first, that the Sheriff’s Office had no record of any commission issued to Humphries prior to January 12, 1981. Alternatively, counsel argued that any prior commissions became invalid when Sheriff Canulette took office, prior to December 31, 1980.

      . Toxie Courtney and other defense witnesses testified that the drink was not thrown by Courtney but that Humphries knocked it from his hand. The trial judge, who was in a better position to evaluate witness credibility, stated that he believed the officer. We accept the factual determination by the trial court that Humphries’ testimony that the drink was thrown is the correct version of the incident.


author: LOTTINGER, Judge.

text:
    William D. OLIVER, Sr. v. Meridel Vincent OLIVER.
    No. 14974.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Sam J. D’Amico, Baton Rouge, for plaintiff-appellant William D. Oliver, Sr.
    Patsy Jo McDowell, Baton Rouge, for defendant-appellant Meridel Vincent Oliver.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   LOTTINGER, Judge.

This matter is before this court on a motion by plaintiff, William D. Oliver, Sr., to dismiss the appeal of defendant, Meridel Vincent Oliver.

Plaintiff has set forth the following facts in his motion to dismiss which we find adequately state the- chronology of events:

“1.
“On May 13, 1981, Meridel Vincent Oliver, hereinafter referred to as Mrs. Oliver, filed a rule nisi praying that Mr. Oliver be adjudged in contempt of court for failure to pay alimony and to determine the arrearage of alimony to be $12,-138.00 and for attorney’s fees.
“Mr. Oliver filed his answer to this rule on May 21,1981, denying relator’s allegations and prayed that the court determine the commencement date of the alimony. “This rule was heard by the Family Court on May 21, 1981. The Family Court delayed ruling on this rule until after the filing of briefs by the parties.
“On June 30, 1981 the Family Court in written reasons fixed the arrearage of alimony at $5,202.00. The rule for contempt and attorney’s fees was denied. “The judgment on this rule was signed on July 9, 1981.
“On July 15, 1981, Mr. Oliver timely filed a motion for new trial pertinent to the judgment which was signed on July 9, 1981.
“On July 23, 1981, Mrs. Oliver moved for and was granted an order of devolutive appeal of the judgment rendered on June 30, 1981 which was read and signed on July 9, 1981. The order of appeal was made returnable September 22, 1981.
“The notice of appeal and estimated costs were sent to counsel for Mr. Oliver on July 23, 1981.
“Mr. Oliver’s motion for new trial was fixed for hearing on August 6, 1981.
“On July 13, 1981, Mrs. Oliver filed an exception to the jurisdiction of the Family Court relative to Mr. Oliver’s motion for a new trial alleging that the matter was on appeal.
“On September 10, 1981, the Family Court by written reasons, overruled Mrs. Oliver’s exception.
“On September 10, 1981, the Family Court denied Mr. Oliver’s motion for a new trial.
“On September 17, 1981, judgment was read and signed by the Family Court overruling Mrs. Oliver’s exception to the jurisdiction and denying Mr. Oliver’s motion for a new trial.
“On September 17, 1981, Mr. Oliver moved for and obtained an order of de-volutive appeal of the judgment which was rendered on July 9, 1981, relative to the arrearage of alimony.
“Notice of the appeal and estimated costs were filed by the clerk on September 17, 1981.
“The appeals were filed on October 22, 1981 in this court.
“2.
“Mrs. Oliver neither filed a motion nor obtained an order of appeal after the judgment was rendered on Sept. 10,1981, and read and signed on September 17, 1981, overruling Mrs. Oliver’s exception to the jurisdiction and denying Mr. Oliver’s motion for a new trial.
"3.
“Mrs. Oliver has not filed an answer to Mr. Oliver’s appeal from the above mentioned judgment.”

Defendant, Mrs. Meridel Vincent Oliver, has filed a peremptory exception of prescription arguing that under La.C.C.P. art. 2161 “a motion to dismiss an appeal because of any irregularity, error, or defect which is imputable to the appellant [defendant] must be filed within three days, exclusive of holidays, of the return day or the date on which the record on appeal is lodged in the appellate court, whichever is later.” Plaintiff filed his motion to dismiss more than three days after the lodging of the record on appeal.

In support of his motion to dismiss plaintiff contends that Mrs. Oliver filed her appeal prematurely, i.e. prior to the denial of his motion for a new trial, and that the denial of the motion for a new trial cannot cure a prematurely taken appeal.

PRESCRIPTION

The true question before this court is whether a valid appeal is pending. When the jurisdiction of an appellate court to entertain an appeal is at issue, a motion to dismiss may be filed at any time. American National Insurance Company v. Ramon, 204 So.2d 798 (La.App. 4th Cir. 1967). Therefore, the exception of prescription is without merit.

VALIDITY OF APPEAL

Appeals are favored, and any doubt as to their validity is resolved in favor of the appellant.

We agree that an appeal taken while a motion for a new trial is pending is premature because as a general rule appeals may only be taken from final judgments, La.C.C.P. art. 2083, and a timely filed motion for a new trial suspends the effective operation of a judgment until the motion is ruled upon. Oliver v. Milliken and Farwell, Inc., 356 So.2d 443 (La.App. 1st Cir. 1977), writ denied 363 So.2d 68 (1978).

However, the Milliken case is not dispositive of the issue because there the motion for a new trial had not been disposed of prior to the dismissal of the appeal. In the instant case, there is no pending motion for a new trial. Jenkins v. Liberty Life Assurance Company, 198 So.2d 151 (La. App. 1st Cir. 1967), cited by plaintiff did not consider whether a premature appeal could be cured by the subsequent denial of a motion for a new trial because a second appeal was granted after the denial of the new trial motion. However, Jenkins did recognize the bond filed with the premature appeal and allowed same to be applicable to the second appeal.

We are more inclined to agree with our brethren on the Fourth Circuit in American National Insurance Company v. Ramon, supra, a case most similar, when the court said:

“We are of the opinion that the denial of the new trial in the case at bar had the effect of making the judgment appealed from effective retroactively as of the date of its rendition and signing and of curing the prematurity of the application and order of appeal.” (204 So.2d 800)

Therefore, for the above and foregoing reasons, the motion to dismiss is denied at the cost of William D. Oliver, Sr. MOTION DENIED.


author: ELLIS, Judge:

text:
    Daniel D. BROUILLETTE, et al. v. CONSOLIDATED CONSTRUCTION COMPANY OF FLORIDA, INC., d/b/a Consolidated Construction and Engineering, Inc., et al.
    No. 15027.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.

      Allen R. Boudreaux, Patrick F. McGrew, Baton Rouge, for plaintiff-appellee Daniel D. Brouillette, David F. Sehnebelen and Fast Foods of Baton Rouge # 2.
    Walton J. Barnes, Baton Rouge, for defendant-appellant Consol. Const. Co. of Florida, Inc., d/b/a Consol. Const, and Engineering, Inc.
    Ray Dawson, Baton Rouge, for defendant-appellant Auto-Owners Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ON MOTION TO DISMISS

ELLIS, Judge:

This is a suit by Daniel D. Brouillette, David F. Sehnebelen and Fast Foods of Baton Rouge # 2 against Consolidated Construction Company of Florida, Inc., doing business as Consolidated Construction and Engineering, Inc. and Auto-Owners Insurance Company, for damages arising out of alleged breaches of two building contracts. Consolidated answered and reconvened against plaintiffs for a balance allegedly due under another building contract. Auto answered and third partied Consolidated seeking full indemnity for any amounts it might be compelled to pay. After the trial on the merits, Consolidated and Auto filed peremptory exceptions of no right of action against plaintiffs.

Judgment was rendered in favor of Brouillette and Sehnebelen against both defendants on the main demand; in favor of Consolidated and against Brouillette and Sehnebelen on the reconventional demand; and in favor of Auto and against Consolidated on the third party demand. In the written reasons for judgment, the trial judge stated that he sustained the exceptions of no right of action as to Fast Foods.

Judgment was signed accordingly on June 8, 1981, except that no mention of the sustaining of the exceptions as to Fast Foods is contained therein. Consolidated and Auto timely perfected a suspensive appeal from the said judgment. On October 29, 1981, Brouillette, Sehnebelen and Fast Foods filed in the district court a pleading styled “Answer to Appeal and Motion for Setting of Suspensive Appeal Bond”, stating that, under Article 2133 of the Code of Civil Procedure, they wished to have reviewed that part of the judgment rendered in favor of Consolidated on the reconven-tional demand, and asking that the amount awarded on the main demand be increased. They then asked the court to set a suspen-sive appeal bond “for the purposes of making its appeal suspensive”. The trial judge signed an order that the answer be deemed good and sufficient, and “as such shall constitute a suspensive appeal insofar as the adverse effects of the judgment rendered June 8, 1981 are concerned; ... .”

Defendants have filed a motion to dismiss the “suspensive appeal” of Brouillette and Sehnebelen and both the answer and “sus-pensive appeal” of Fast Foods.

Defendants’ first contention is that the answer should have been filed in this court rather than the district court, and should be dismissed for that reason alone. The only stricture on the filing of an answer is that it be filed “not later than fifteen days after the return day or the lodging of the record whichever is later.” Article 2133 of the Code of Civil Procedure. There is no requirement that it be filed in the appellate court. Since no action is required by the court relative to an answer, the question of the authority of the trial court, under Article 2088 of the Code of Civil Procedure, need not be considered.

Plaintiffs concede that Fast Foods is no longer involved in the case, so that we need not consider that aspect of the case, and the answer of Fast Foods will be dismissed.

As to the suspensive nature of the “appeal” resulting from plaintiffs’ answer, we are of the opinion that, in order for a party to be granted a suspensive appeal, the procedures set forth in Articles 2121 and 2123 of the Code of Civil Procedure must be followed. Plaintiffs’ answer to the appeal, which was timely as an answer, was filed long after the delay for a suspensive appeal provided in Article 2123 had elapsed, so that it cannot be considered as a suspensive appeal. It does have the effect of an answer as provided in Article 2133 of the Code of Civil Procedure.

The answer to the appeal filed by Fast Foods is therefore dismissed; the suspen-sive appeal granted to plaintiffs by the trial court is dismissed; and the answer to the appeal filed by Brouillette and Schnebelen is maintained as such. Plaintiffs shall bear all costs of this motion, with assessment of all other costs to await final disposition of this suit on its merits.


author: PONDER, Judge.

text:
    Billie Bishop PARAULT v. John L. PARAULT.
    82 CA 0031.
    Court of Appeal of Louisiana, First Circuit.
    March 2, 1982.
    Susan Dowden, Baton Rouge, for plaintiff-appellant.
    John L. Parault, in pro. per.
    Before ELLIS, PONDER and SAVOIE, JJ.
   PONDER, Judge.

Ex proprio motu, we issued an order to show cause why this appeal should not be dismissed because of an appearance that it was not timely filed.

On September 23, 1981, the trial court rendered judgment granting plaintiff custody of minor children, an award of $100.00 per month child support and the right to occupy the family residence. Judgment was signed on September 30, 1981.

On November 9, 1981, the delay for appeal expired.

On November 16, 1981, the trial judge signed the order of appeal, which was stamped by the clerk’s office as being filed that date.

On January 22, 1982, we issued a rule to show cause why the appeal should not be dismissed.

In response to this order plaintiff has filed an affidavit of an employee of Courthouse Courier, Inc., that he delivered the motion and order of appeal to the clerk’s office on November 6, 1981 and that a Deputy Clerk gave a receipt for the pleading on that date. A copy of the receipted sheet was attached to the affidavit.

The delay was therefore not imputable to the appellant and the appeal should not be dismissed. La.Code of Civil Procedure, Art. 2161; Traigle v. Gulf Coast Aluminum Corp., 399 So.2d 183 (La.1981); E. D. Haber Heating & Air Conditioning, Inc. v. Koppenal, 399 So.2d 1224 (1st Cir. 1981).

The rule to show cause is recalled and the appeal is maintained.