text:
    SHELL OIL COMPANY v. Shirley McNAMARA, Secretary of Revenue and Taxation, Etc., et al.
    No. 14728.
    Court of Appeal of Louisiana, First Circuit.
    May 4, 1982.
    Rehearing Denied June 21, 1982.

      C. Murphy Moss, Jr., Mark S. Stein, New Orleans, for plaintiff-appellee Shell Oil Co.
    W. Steven Mannear, Howard M. Romaine, Riley F. Boudreaux, Jr., Baton Rouge, for defendant-appellant Shirley McNamara, Secretary of Revenue and Taxation, and Dept, of Revenue and Taxation, State of La.
    Before LEAR, CARTER and CHIAS-SON, JJ.
   CARTER, Judge:

Defendants-appellants, Shirley McNamara, Secretary of Revenue and Taxation for the State of Louisiana, and Department of Revenue and Taxation, State of Louisiana, appeal the judgment of the trial court in favor of Shell Oil Company, plaintiff-ap-pellee, for certain Louisiana income taxes paid under protest for the years 1974 and 1975. The amounts at issue are $801,046.00 in taxes paid and $154,871.00 of interest paid.

Appellants argue that the trial court erred in its finding that Shell is entitled to deduct for Louisiana income tax purposes the tax paid to the Federal government on the “excess depletion”.

In denying appellants’ claims, the trial judge in excellent written reasons for judgment has fully and correctly answered the complaints the appellants made in this appeal.

We have examined the entire record and conclude that the trial judge correctly decided the case and the applicable law was correctly applied to the facts presented. We adopt his reasons as our own.

For the reasons assigned by the trial judge in his written reasons for judgment, a copy of which is attached hereto, marked “Appendix” and made part hereof, the judgment of the trial court is affirmed. The Department is cast for costs in the amount of $388.84.

AFFIRMED:

APPE NDIX

SHELL OIL COMPANY NUMBER 214,704, DIVISION “J”

VERSUS 19TH JUDICIAL DISTRICT COURT

SHIRLEY MCNAMARA, SECRETARY OF REVENUE AND TAXATION, AND DEPARTMENT OF REVENUE AND TAXATION, STATE OF LOUISIANA PARISH OF EAST BATON ROUGE STATE OF LOUISIANA

******************** *******************

WRITTEN REASONS FOR JUDGMENT

This lawsuit arises out of a dispute between Shell Oil Company and the Department of Revenue and Taxation, State of Louisiana over the amount of state income taxes Shell owes for the tax years 1974 and 1975. The dispute has its origin in the manner in which the State Department of Revenue and Taxation computed the deduction for federal income taxes paid by Shell on income derived from Louisiana which Shell is entitled to receive on the state income tax Shell owes for the tax years in question.

Shell contends that it is entitled to receive a deduction equivalent to the full amount of federal income tax paid on income derived from Louisiana. The Department of Revenue and Taxation, State of Louisiana, contends that the federal income taxes paid with respect to the amount of depletion allowed by the State of Louisiana but not allowed by the federal government (referred to hereinafter as the Excess Depletion) is not deductible for Louisiana income tax purposes.

The amounts at issue in this litigation have been stipulated by and between counsel. Further it has been stipulated that if the Court should rule in favor of Shell with respect to both years in issue, then Shell is entitled to a refund of $955,917.00 consisting of interest and taxes paid, plus interest as provided by law, and that should the Court rule in favor of Louisiana, then Shell is not entitled to any refund. The amount of interest provided by law remains in dispute.

Shell bases its argument that the tax paid to the federal government on the Excess Depletion is deductible for Louisiana income tax purposes on La.R.S. 47:241, which is the governing section of Subpart F of Part II of Title 47 of the Louisiana Revised Statutes, and which sets out the manner in which the net income of corporations subject to tax by the State of Louisiana is determined. That section reads as follows:

The net income of a nonresident individual or a corporation subject to the tax imposed by this Chapter shall be the sum of the net allocable income earned within or derived from sources within this state as defined in R.S. 47:243, and the net apportionable income derived from sources within this State, as defined in R.S. 47:244, less the amount of federal income taxes attributable to the net allo-cable income and net apportionable income derived from sources in this state. The amount of federal income taxes to be so deducted shall be that portion of the total federal income tax which is levied with respect to the particular income derived from sources in this state to be computed in accordance with rules and regulations of the collector of revenue. Proper adjustment shall be made for the actual tax rates applying to the different classes of income and for all differences in the computation of net income for purposes of federal income taxation as compared to the computation of net income under this Chapter. Where the allocation of the tax is to be based on a ration of the amount of net income of a particular class, both the numerator and the denominator of the fraction used in determining the ratio shall be computed on the basis that such net income is determined for federal income tax purposes.

Shell argues that by the terms of La.R.S. 47:241 the federal income tax deduction is singled out from “all expenses, losses and other deductions” allowed by Chapter 47, and that La.R.S. 47:241 contains specific language setting out how the federal income tax deduction is to be calculated. The essential element of Shell’s version of what La.R.S. 47:241 requires in the calculation of the federal income tax deduction is contained in the last sentence of that section.

The last sentence of La.R.S. 47:241 requires that in the allocation of the federal income tax deduction the ratio of Louisiana net income to total net income is to be expressed in terms of net income as computed for purposes of federal income taxes. Thus the equation which results in the federal income tax deduction to which Shell is entitled can be expressed as follows:

The dispute in this lawsuit centers around the calculation of the numerator in the above ratio, i.e. Louisiana income on a federal basis. Shell’s contention is that the numerator should be calculated in the following manner:

Louisiana income on a federal basis is equal to Louisiana net income plus items not taxed by Louisiana but taxed by the federal government, minus items not taxed by the federal government but taxed by Louisiana.

Louisiana’s contention is that the numerator should be calculated in the same manner as above but that an additional step must be added, and that step is the reduction of Louisiana net income on a federal basis by the amount of the Excess Depletion.

Louisiana bases this contention on two sources. The first of the two sources relied on by Louisiana is La.R.S. 47:55. Specifically, Louisiana points to paragraph four (4) of that statute which states that: “In computing net income, there shall be allowed as deductions all taxes paid or accrued within the taxable year except: (4) Any income taxes paid on net income on which no Louisiana income tax has been paid, ... ”. The second source which Louisiana relies on is Article 47:241.2 of the Regulations Concerning Louisiana Income Taxes, which in effect adopts the limitation on the federal income tax deduction which excludes the tax paid by Shell on the Excess Depletion.

Shell in response to the reliance of Louisiana on the above stated sources argues that La.R.S. 47:55 is not applicable to the present issue before the Court because it is contained in Sub-Part C of Part of Title 47, and because La.R.S. 47:241 specifically provides that the federal income tax deduction is not to be governed by the provision of Sub-Part C of Part I, but by La.R.S. 47:241 itself. Shell further challenges the validity of the regulations adopted pursuant to La. R.S. 47:241, specifically Article 47:241.2, to the extent that they are contradictory to and beyond the scope of La.R.S. 47:241.

In the alternative, Shell argues that if the Court should find that La.R.S. 47:55 should be considered in the computation of Shell’s federal income tax deduction, that the terms of the statute do not in fact indicate that Shell is not entitled to deduct federal income taxes paid on the Excess Depletion. The basis for this position is the specific wording of the statute which reads “on net income on which no Louisiana income tax has been paid”. Shell argues that the Excess Depletion in question is not net income on which no Louisiana income tax has been paid because the Excess Depletion is contained in the federal net income derived from oil and gas production and it cannot be said that Shell paid no Louisiana income tax on income derived from oil and gas production within Louisiana during 1974 and 1975.

It is the opinion of the Court that La.R.S. 47:241 is controlling in the determination of the dispute between Shell and Louisiana as to whether the federal income tax deduction includes federal income tax paid on the Excess Depletion. The Court in reading that statute comes to the conclusion that by its very terms it is intended to control the issue of what is to be included in the federal income tax deduction. However, it is- also the opinion of the Court that even if La. R.S. 47:55(4) is read in conjunction with La.R.S. 47:241 the result is the same, because the issue of the Excess Depletion presented to the Court for determination in this suit does not fall within the terms of La.R.S. 47:55(4) as the Excess Depletion is included in a class of net income, Louisiana oil and gas production, on which Shell has paid substantial sums in Louisiana income tax. Since La.R.S. 47:55(4) speaks only of net income on which no Louisiana income tax is paid, it does not exclude the inclusion of the Excess Depletion in the calculation of the federal income tax deduction which Shell is specifically entitled to under La. R.S. 47:241.

The last sentence of La.R.S. 47:241 clearly states that the numerator of a ratio of Louisiana Net Income to Total Net Income is to be expressed on the basis that such net income is determined for federal income tax purposes. To reduce the numerator of that ratio by the Excess Depletion as has been done by the Department of Revenue and Taxation, State of Louisiana in calculating the proper federal income tax deduction to which Shell is entitled for the years 1974 and 1975, is to come into direct conflict with the above stated requirement of La.R.S. 47:241. Such a reduction is tantamount to expressing the numerator of the ratio in terms of Louisiana net income instead of Louisiana net income on a federal basis as is required by the statute.

It is also the opinion of the Court that to the extent that Article 47:241.2 of the Regulations Concerning Louisiana Income Taxes calls for such a reduction of the numerator of the above stated ratio it goes beyond the scope of the enabling statute and is in direct conflict with such statute, and is therefore invalid.

Accordingly, for these written reasons assigned, it is ordered, adjudged and decreed that judgment be rendered in favor of the plaintiff in this action, Shell Oil Company, and against the defendants, Shirley McNamara, Secretary of Revenue and Taxation, and the Department of Revenue and Taxation, State of Louisiana, and in accordance with the stipulation entered into by the parties through their counsel of record it is ordered, adjudged and decreed that the plaintiff, Shell Oil Company, be awarded $955,917.00 as a refund for taxes paid under protest for the years 1974 and 1975.

It is the opinion of the Court that the proper interest which such award is to bear from the time of payment under protest is to be computed, for each period of time, at the varying rates provided by law during that period. Thus Shell is entitled to 2% from the time of the overpayment until September 12,1975 and 6% thereafter until the refund is made.

Judgment will be signed accordingly.

Baton Rouge, Louisiana, this 29th day of January, 1981.

Steve A. Alford. Jr.

Steve A. Alford, Jr., Judge

19th Judicial District Court


source: Caselaw Access Project

author: MARVIN, Judge. SEXTON, Judge,

license: Public Domain

text:
    Laura Elaine Johnson SMITH, Plaintiff-Appellant, v. William C. JOHNSON and Margie Smith Johnson, Defendants-Appellees.
    No. 14840.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Writ Denied July 2, 1982.

      Davenport, Files, Kelly & Marsh by Thomas W. Davenport, Jr., Monroe, for plaintiff-appellant.
    Guerriero, Smith, Hingle & Anzalone by Joe D. Guerriero, Monroe, for defendants-appellees.
    Before PRICE, HALL, MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

In this child custody dispute, the mother appeals a judgment granting custody of her six-year-old son to the child’s maternal grandparents. We reverse and award custody to the mother. Deville v. LaGrange, 388 So.2d 696 (La.1980); Burt v. McKee, 384 So.2d 489 (La.App.2d Cir. 1980).

The mother was 16 years old when she gave birth to her son in January 1976 and was never married to the father of the child. She voluntarily surrendered temporary custody of her son to her parents in juvenile court proceedings in June 1976. She led a rather checkered life between that time and December 1978 when she married Charles Smith. In April 1979 she gave birth to a second son, the first of two children of this marriage. The mother was eight months pregnant with the second child of this marriage when this case was tried in July 1981.

In July 1979 the mother petitioned for custody of her son and alternatively for visitation privileges after her father, allegedly on the advice of a juvenile officer, refused to allow the child to visit with his mother and her second son, away from her father’s home. In a consent decree, visitation privileges were awarded the mother, which she exercised regularly until she and her family moved from Monroe to Jennings where her husband found employment in January 1981. With less regularity, she continued to exercise visitation privileges after moving to Jennings. This action was provoked when the mother refused to return her son from Jennings to the grandparents in Monroe in July 1981 after a two-week visitation period.

The trial court observed:

“... [B]oth [the mother and the grandparents] dearly love the child ... [F]or several years [the mother] led a less than desirable life .. . [The grandparents] have raised this child as their child [for] approximately 5V2 years. The court finds nothing unfit about [the mother] ... at the present time .. . [but her] actions over the past ... years are somewhat indicative of an abandonment, tacitly so ... The court questions [whether the son] .. . should be ... uprooted ... placed in a situation where he will be competing with another sibling for the attention of the mother ... if [he is] left [with the grandparents] ... [he] would get 100 percent attention.
“[The mother] is well on her way to establishing herself as a reliable and responsible [mother] capable of handling and managing a large family [but] to uproot ... [the son] ... and place him in a strange environment where he will be competing for attention would not be in the best interest of the child.”

In Deville, supra, the Supreme Court emphasized that:

“In Wood v. Beard [290 So.2d 675] ... we enunciated as a rule of law the principle that ... the parent has the paramount right to the custody of the child, and may be deprived of that custody only when there are compelling reasons. We also indicated what forms these compelling reasons may take: proof that the parent has forfeited his or her right to parenthood, that he or she is unfit, or that he or she is unable to provide a home for the child.” 388 So.2d at 698 (citations omitted)

There the trial court had awarded the custody of an illegitimate child to the maternal grandparents in a dispute with the natural father. The Supreme Court concluded:

“The trial court correctly noted the paramount nature of the father’s right to custody and the strong showing which a nonparent must make in order to overcome the right, but it then proceeded to ‘balance the reasons for giving custody to the [father] against those for not giving him custody.’ By so doing, [the trial court] lost sight of the great weight to which the parental right to custody is entitled.” ibid. Bracketed material supplied.

We must find here that the trial court in this action similarly erred in concluding that “... to uproot ... [the son] .. . would not be in [his] best interest”, where the court also finds “nothing unfit” about the mother when the custody issue is tried.

In Burt, supra, we observed that it is not proper to merely compare the parent’s situation with that of the grandparent and award custody on a best interest comparison because the parent enjoys the paramount right to custody over a non-parent. See and compare LaCroix v. Cook, 383 So.2d 59 (La.App.2d Cir. 1980); Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir. 1981); Juneau v. Bordelon, 380 So.2d 208 (La.App.3d Cir. 1980). Also compare Snell v. Snell, 347 So.2d 511 (La.App.2d Cir. 1977), and Cawthorne v. Williams, 313 So.2d 915 (La.App.2d Cir. 1975).

This record shows that the mother sought to establish a parental relationship with her son when he was about 3V2 years old and supports the trial judge’s conclusion that since that time she has been a “fit” mother and homemaker. The dissolute life led by the mother between the birth of her first son and her marriage in 1978 is not a compelling reason to overcome her paramount right to custody. Deville, supra. Lapointe v. Menard, 412 So.2d 223 (La.App.3d Cir. 1982).

At appellee’s cost, the judgment appealed is reversed and it is hereby ordered that defendants-appellees forthwith surrender custody of the minor, Nathan Wade Johnson, to his mother, Laura Elaine Johnson Smith, in whom permanent custody shall be maintained.

REVERSED AND RENDERED.

FRED W. JONES, Jr. and SEXTON, JJ., dissent for reasons assigned by SEXTON, J.

SEXTON, Judge,

dissenting.

I respectfully dissent from the decision of the majority.

Appellant’s activities have caused her parents much agony and torment. They first learned of her pregnancy with Nathan on their way to court for the trial of a young man who helped her climb out of a window of their home. Apparently after serious consideration of the issue, the family decided that appellant and the child would return after the birth of the child to the home of her parents. There it was hoped that appellant would gradually take on more and more responsibility of the care of the child. Initially she was only to prepare the child’s bottle, a task which she failed to accomplish more often than not. She was in and out of the house accepting almost no responsibility for the care of the child. She continued seeing various men during these periods and stayed with several of them without returning home for days at a time. She has conceded that she used marijuana regularly (although she denied the use of other drugs) and that she engaged in various activities with the “Satan’s Tramps” motorcycle group, although she contended she was never a member thereof.

One day, after her mother had asked appellant to fix the baby’s bottle while she bathed him, appellant having not prepared the bottle, came in the bathroom where the grandmother and the child were and announced that she was leaving and not returning. She was pregnant at that time by someone other than this child’s father, we gather. This pregnancy subsequently resulted in a miscarriage.

Appellant then drifted about, returning home from time to time for security and assistance when she felt it necessary. During these occasions, she virtually ignored the baby, leaving its care primarily to her mother. She eventually left to live with her current husband, who was the fourth or fifth man with whom she had taken up residence. They were married in December of 1978 after living together for some eight months and now have two children. Through all of this appellant’s parents did not take the child from her or force her out of the house. They obviously reluctantly tolerated her conduct and now are understandably concerned that, although appellant and her husband have been married for some two years, her stability and responsibility are not sufficiently established to warrant this change of custody. Certainly there is a significant chance that appellant will tire of current circumstances and revert to her previous lifestyle.

Thus we have a six-year-old child reared almost entirely by his grandparents subsequent to his clear abandonment by his mother, who virtually ignored him for three and one-half to four years. Now during the last two years she has lived a stable life and is apparently capable of providing a fit and proper home for her child.

The majority has made particular reference to Deville v. LaGrange, 388 So.2d 696 (La.1980), where a sharply divided Supreme Court affirmed the Court of Appeal’s reversal of the District Court and awarded the two-year-old child to the father after it had been with the grandparents for one month. The contest occurred subsequent to the death of the mother who was separated from the father. The Supreme Court specifically held that the father had not forfeited his paramount right to the child.

Deville is based on Wood v. Beard, 290 So.2d 675 (La.1974), which was a reversal of the Court of Appeal in awarding an approximately two-year-old child to the parent after the child had been with the grandparents some 16 months. The Wood court emphasized the importance of a child of tender years being with the parent. The court also was specific to point out that its mother had not abandoned or forfeited the child. The child was born while the mother was in jail and had been released to the grandparents because of that. After getting out of jail and spending a month with her parents, she attempted to take the child with her to California to be with her husband who was still in jail there. Her parents refused. So, obviously that mother did not abandon or forfeit the child.

I do not believe that the result of our majority is mandated by either Wood or Deville and believe that much of the appellate jurisprudence is an inappropriate extension of these cases. At least two cases cited by the majority which evolved from Wood and Deville resulted in the uprooting of a child from a long-standing, stable environment. In Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir. 1981), the Court of Appeal reversed the District Court and awarded an eight-year-old child to the father after the child had been with the grandparents some five years. Likewise in Juneau v. Bordelon, 380 So.2d 208 (La.App.3d Cir. 1980), the Third Circuit affirmed an award of a child some six years of age to the parent after about five years with the grandparents.

However in Cawthorne v. Williams, 313 So.2d 915 (La.App.2d Cir. 1975), now Justice Dennis distinguished Wood and left an abandoned seven-year-old child with the grandparents after some six and one-half years, though concededly the mother in Cawthorne was not nearly so well re-established as appellant here.

In neither Wood nor Deville was there a clear abandonment. Furthermore Wood and Deville both note that forfeiture (Justice Dennis spoke in terms of “abandonment” in Cawthorne) may deprive the parent of the normal “paramount right to the child.” In Wood, at p. 677, the court stated:

“When the parent competes with non-parents of the child, the parent’s right to custody is superior, unless the parent is unable or unfit, having forfeited parental rights, [citations omitted] No such forfeiture has been found by either court below, and the evidence will not support such a finding.”

In Deville the court, at p. 698, noted:

“Parenthood itself confers a right to custody, but that right of parenthood may be forfeited by conduct which denies or rejects one’s child.” [footnote omitted]

Surely there is some point beyond which a parent ought not to be able to uproot a child from a stable environment. Is it 15 years, is it 10 years? It is not 6 years if our majority is correct. I see a clear abandonment (forfeiture) here though I agree a good bit of it can be said to be disinterest. However, at some point disinterest certainly becomes abandonment.

In my view this cause presents three factors which when taken together have not been squarely presented to our highest court; i.e. (1) abandonment, (2) that abandonment being of long-standing, and (3) rehabilitation of the parent. I suggest that under all these circumstances the evaluation should be based on what is in the best interest of the child, with stability of environment as a major consideration.

That is the analysis undertaken by the trial judge here, and I find no manifest error in his result. I therefore respectfully dissent.

FRED W. JONES, Jr., J., dissents for the reasons assigned by SEXTON, J.

      . The original consideration by a three-judge panel of this appeal produced the result contemplated by LSA-Const. Art. 5, § 8(B) and this appeal was submitted to a five-judge panel as the Constitution requires.

      . Between July 1976 and April 1978, the mother was in and out of her parents’ home and accepted almost no responsibility for the care of her son. She continued seeing various men during this period and stayed with several of them without returning home to her child for days at a time. She had a miscarriage. She used marijuana regularly (although she denied the use of other drugs) and temporarily associated with members of a motorcycle gang. After the mother began living with Charles Smith in 1978 she ceased using marijuana and being promiscuous.

      . Charles Smith has a 10-year-old daughter by a prior marriage who visits him and his family.


author: PRICE, Judge.

text:
    Walter R. ROARK, Plaintiff-Appellant, v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 14851.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Writ Denied June 11, 1982.

      Law Offices of Bobby L. Culpepper by Jimmy C. Teat, Jonesboro, for plaintiff-appellant.
    Hayes, Harkey, Smith & Cascio by Haynes L. Harkey, Jr., Monroe, for defendants-appellees.

      Before PRICE, MARVIN and NORRIS, JJ.
   PRICE, Judge.

Plaintiff, Walter R. Roark, instituted this suit to recover damages for a staph infection allegedly contracted while he was a patient at Glenwood Hospital. Defendants are Glenwood Hospital and St. Paul Fire and Marine Insurance Company, the hospital’s liability insurer. After a trial on the merits, the court rejected plaintiff’s demands and rendered judgment in favor of defendants. We affirm.

Plaintiff, complaining of lower back pain, was admitted to Glenwood Hospital on September 27, 1979. On October 5, 1979, a laminectomy was performed on plaintiff by Dr. R. Greer. After a seemingly uneventful recovery, plaintiff was discharged from the hospital on October 11, 1979. On the afternoon of October 12, 1979, plaintiff began to experience severe pain and he developed a high fever. After consultation with Dr. Greer, plaintiff returned to Glenwood Hospital, where it was ultimately discovered that a bacterial infection, “staphylococcus aureus,” had invaded the surgical site.

Plaintiff was hospitalized at Glenwood until November 16, 1979, when he was transferred to St. Francis Medical Center for further therapy. Plaintiff was discharged from St. Francis on December 8, 1979, and continued under Dr. Greer’s care until June 30, 1980.

Plaintiff filed this suit on August 4,1980, alleging that the hospital was negligent in failing to meet required standards of care as to protection against infection and for failure to properly diagnose and treat plaintiff for the infection after he contracted it. Plaintiff also alleged the applicability of the doctrine of res ipsa loquitur, and that the hospital was strictly liable under La.C.C. Art. 2317.

Evidence introduced at trial shows plaintiff was given a shower with antiseptic soap, and that the surgical site was scrubbed with antiseptics prior to surgery. The standard procedures employed by the hospital to establish the sterility of the supplies, instruments, and environment were also detailed. The evidence shows that the procedures employed meet or exceed national standards.

The deposition of Dr. Greer was admitted into evidence at trial. He testified that a staph infection is the most common infection after surgery. By his estimate, approximately five percent of all surgical cases will develop some sort of infection regardless of all precautions being followed. Dr. Greer was fairly certain that the staph bacteria invaded plaintiff’s wound while he was in the hospital. However, in the doctor’s opinion it was impossible to say where the bacteria originated since certain people are carriers of staph. In fact, it was. highly possible that plaintiff had the bacteria on his skin prior to his admission to the hospital. Staph bacteria poses no threat to an otherwise healthy person until it infects an open wound.

Dr. Greer testified plaintiff was informed prior to his operation that infection was an attendant risk of surgery. He was given an antibiotic for staph before and after surgery. In Dr. Greer’s opinion, nothing else could have been done to prevent the infection.

The deposition of Dr. G. Pankey, a highly qualified expert in the field of infectious diseases, was also introduced into evidence. Dr. Pankey testified that most individuals who contract a staph infection after surgery had the bacteria on their skin prior to surgery. Since the bacteria is found within the subcutaneous sweat glands and hair follicles of some patients, the organism may survive the cleansing of the skin with antiseptics. The doctor also testified that susceptibility to staph infection varies from individual to individual. With the present state of medicine, there is no practical way to determine prior to surgery who may be more susceptible to staph infection or who may be a “carrier” of the staph bacteria. Dr. Pankey concluded that there is no way to completely eliminate staph infections, which are an unavoidable risk of surgery.

After a review of all the available medical records, Dr. Pankey was of the opinion that plaintiff had received excellent medical care.

The trial court, in its reasons for judgment, found that Glenwood Hospital was not strictly liable for the damages suffered by plaintiff. The court differentiated the instant case from DeBattista v. Argonaut-Southwest Ins. Co., 403 So.2d 26 (La.1981), where the Supreme Court, using a products liability theory, held that a blood bank was strictly liable for injuries to a person who received blood contaminated with hepatitis. DeBattista is the first case to apply La.C.C. Arts. 2315 and 2317 to a “health care provider.” The court concluded that since the origin of the staph bacteria was unknown, DeBattista and the other jurisprudence on liability without legal fault was not applicable. The trial court also found that the doctrine of res ipsa loquitur was not applicable to this case because the record did not establish that the infection would not have ordinarily occurred without fault on the part of defendant, a prerequisite to the application of the doctrine. Finally, the court concluded that the defendant hospital did not deviate from prevailing standards in either antiseptic procedures and precautions or in post-operative attention, care, and diagnosis. Accordingly, there was no negligence on the part of Glenwood Hospital.

Plaintiff’s primary contention on appeal is that the trial court erred in rejecting his demands under the rationale of DeBattista v. Argonaut-Southwest Ins. Co., supra. He contends that the hospital is strictly liable for his injuries under La.C.C. Art. 2317. Plaintiff further contends that Glen-wood Hospital had a defective “thing” within its custody, and this “thing” caused damage to him. Therefore, under the provisions of Art. 2317, the hospital is strictly liable for his injuries without any evidence of legal fault. We find that DeBattista does not compel such a conclusion.

La.C.C. Art. 2317 provides:

We are responsible, not only for the damages occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications.

The purpose of strict liability under this article is to protect a person from the defect of a “thing” under the control of another which creates an unreasonable risk of harm. Loescher v. Parr, 324 So.2d 441 (La.1975).

Because the term “thing” encompasses an infinite subject matter, and since the distinction between negligence eases and strict liability cases has often been misunderstood, the Supreme Court has recently reiterated the effect of applying strict liability under Art. 2317. In Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), the Supreme Court made the following statement:

Under strict liability concepts, the mere fact of the owner’s relationship with and responsibility for the damage-causing thing gives rise to an absolute duty to discover the risks presented by the thing in custody.

The court concluded that:

. .. [I]n a strict liability case in which the claimant asserts that the owner’s damage-causing thing presented an unreasonable risk of harm, the standard for determining liability is to presume the owner’s knowledge of the risk presented by the thing under his control and then to determine the reasonableness (according to traditional notions of blameworthiness) of the owner’s conduct, in the light of that presumed knowledge.

Assuming that Art. 2317 is applicable to this case, we find that Glenwood Hospital is not strictly liable for the damages suffered by plaintiff. First, the “thing” that allegedly caused the unreasonable risk of harm of which plaintiff complains can only be the staph bacteria. As noted by the trial court, the origin of the staph bacteria could not be determined. Therefore, it is not possible to establish the hospital’s relationship with, or responsibility for, the subsequent infection. Second, even if such a relationship could be established, and if the hospital were presumed to know of the risk, the evidence shows that the precautions employed by the hospital to prevent infection met the highest standards and were, therefore, reasonable under the circumstances. Consequently, Glenwood Hospital cannot be held strictly liable for the injury suffered by plaintiff.

Plaintiff also contends that the trial court erred in failing to apply the doctrine of res ipsa loquitur to this case.

Res ipsa loquitur is an evidentiary principle, the applicability of which can only be determined at the conclusion of trial. Garrison v. Hotel Dieu, 319 So.2d 557 (La.App. 4th Cir. 1975), writ denied 323 So.2d 129.

Res ipsa loquitur is a rule of circumstantial evidence. Where there is no direct evidence to show cause of injury, and the circumstantial evidence indicates that the negligence of defendant is the most plausible explanation for the injury, the doctrine applies. McCann v. Baton Rouge General Hospital, 276 So.2d 259 (La.1973).

To apply the doctrine of res ipsa loquitur, three criteria must be met:

(1) The accident must be of a kind that does not ordinarily occur in the absence of negligence;
(2) The injury was caused by an instrumentality within the control of defendant; and
(3) Evidence as to the cause of the accident is more readily available to the defendant.

Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621 (1972); Ray v. Ameri-Care Hospital, 400 So.2d 1127 (La.App. 1st Cir. 1981), writ denied 404 So.2d 277.

The record in this case clearly indicates that in the ordinary course of affairs, a certain number of hospital patients will contract a staph infection regardless of the conduct of the hospital. Therefore, we must conclude, as did the trial court, that an essential element for the applicability of res ipsa loquitur is missing. The evidence does not establish that plaintiff’s infection would not ordinarily have occurred without the negligence of defendant.

After a careful examination of the evidence in this case, and applying the standard of appellate review as set out in Canter v. Koehring Co., 283 So.2d 716 (La.1973), we cannot say the trial court was manifestly erroneous in finding that Glen-wood Hospital was not negligent in the care it provided plaintiff.

The standard of care required of a hospital does not require a “community standard” in order to make a determination of negligence under a particular set of circumstances. A hospital is bound to exercise the necessary care toward a patient that his condition requires. The hospital’s duty extends to protecting a patient from dangers which may result from the patient’s physical and mental incapacities as well as those external circumstances peculiarly within the hospital’s control. Whether a hospital has breached its duty of care owed to a patient depends on the facts and circumstances of the particular case. Hunt v. Bogalusa Community Medical Center, 303 So.2d 745 (La.1974).

However, a hospital’s duty has been traditionally limited by the jurisprudence. A hospital is not an insurer of a patient’s safety. The rules of care are limited by the principle that no one is required to guard against or take measures to avert that which a reasonable person under the circumstances would not anticipate as likely to happen. Goodeaux v. Martin Hospital, Inc., 333 So.2d 717 (La.App. 2d Cir. 1976), writ denied 338 So.2d 295.

Under the circumstances of the instant case, there was no duty imposed on the hospital to exercise any greater precaution against infection beyond those measures which were taken. Moreover, the post-operative attention received by plaintiff was reasonable in view of this particular patient’s condition.

For the reasons assigned, the judgment of the trial court is affirmed at plaintiff’s costs.

      . We note that the Kent decision is not yet final upon the date this decision is rendered, however, we find that Kent merely reiterates and clarifies past jurisprudence.


author: NORRIS, Judge.

text:
    Billie Triplett JONES, Plaintiff-Appellee, v. Maurice Allen JONES, Sr., Defendant-Appellant.
    No. 14852.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Rehearing Denied June 17, 1982.
    Bobby L. Culpepper, Jonesboro, for plaintiff-appellee.
    Smith & Bowers by Gary A. Bowers, Shreveport, for defendant-appellant.

      Before PRICE, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

In this child custody contest, the father appeals an adverse judgment maintaining custody of a twelve year old girl and a nine year old boy with their maternal grandparents. We reverse.

Appellant, Maurice Allen Jones, Sr., and Billie Vernelle Triplett Jones were married in 1958, physically separated in January of 1975 and divorced in March of 1977. Six children were born of the marriage; and the youngest two, Landra Lu-Niece (Lun-iece) and James Douglas, are the subjects of this custody dispute.

In 1975, Billie Jones abandoned appellant and her minor children. Consequently, Vernon and Bernice Triplett, their maternal grandparents, assumed the care of the children. Subsequently, in a 1977 judgment of divorce, the grandparents were awarded custody of the three youngest children with the mother being awarded custody of two older daughters. Appellant, a tugboat captain who was away from home much of the time, consented to this custody award because he was unable to provide a home and supervision for his children at that time. According to the evidence, appellant paid child support to the Tripletts on a regular basis and enjoyed frequent multi-day visits with his three youngest children until June, 1980. Appellant remarried in 1977; he and his present wife have a four year old son.

In May, 1980, appellant attempted to obtain legal custody of his three youngest children. This litigation was resolved by stipulation judgment with appellant receiving custody of Maurice, Jr. and the Tripletts maintaining custody of the children made the subject of this dispute. Appellant was awarded specific visitation privileges with his children and child support was fixed at $150 per month. Because of the custody litigation, Mr. Triplett became upset with appellant and thereafter restricted appellant’s visitation privileges with the children to those specifically set forth in the 1980 judgment. Thereafter, appellant continued to pay child support, occasionally provided additional clothes and funds for the children and the Triplett household, and exercised his visitation privileges.

On June 23, 1981, appellant again filed for custody of Landra and James. The Tripletts opposed this change of custody, and the mother intervened in the proceedings in favor of her parents.

Trial on the rule began July 13, 1981, with Bernice Triplett and appellant being the only witnesses. After their testimony, the trial court interrupted the proceedings in order for the children to be evaluated by a psychologist. Trial was resumed and concluded on August 31, 1981, and the confidential psychological reports concerning both children were filed into evidence. Only Glenda Jones (appellant’s wife), Billie Jones (the children’s mother) and Mrs. Triplett testified.

At the conclusion of the trial, the trial court in oral reasons maintained custody of the children with the Tripletts primarily on the basis that the children had told him privately in chambers that although they loved their father, they preferred to remain with the Tripletts. It is from the judgment maintaining custody of the children with the Tripletts that this appeal is taken.

The law is well settled that a parent enjoys a paramount or superior right to custody of his child as against a nonparent. Deville v. LaGrange, 388 So.2d 696 (La.1980); Wood v. Beard, 290 So.2d 675 (La.1974); Burt v. McKee, 384 So.2d 489 (La.App.2d Cir.1980); Hall v. Hall, 367 So.2d 162 (La.App.2d Cir.1979). A parent may be deprived of that custody only when there are compelling reasons, such as the parent has forfeited his right to parenthood, he is unfit, or he is unable to provide a home for the child. The burden of proving “compelling reasons” rests with the non-parent. Snell v. Snell, 347 So.2d 511 (La.App.2d Cir. 1977). It is not proper to merely compare the parent’s circumstances and situation with that of the non-parent and award custody on the basis of best interests of the child. The “best interest” comparison is the proper basis for custody contests between parents; it is not properly applied to a contest between a parent and a non-parent because the parent enjoys the paramount right to custody. Burt v. McKee, supra; Powell v. Barsavage, 399 So.2d 1308 (La.App. 4th Cir. 1981); LaCroix v. Crook, 383 So.2d 59 (La.App.2d Cir.1980). (See also Laura Elaine Johnson Smith v. William C. Johnson, et al, La.App., 415 So.2d 291, bearing docket No. 14,840 handed down by this court on this same date.)

In the instant case, the trial court did not find, and the record does not support a finding, that appellant has forfeited his right to parenthood; is unfit to care for his children; or is unable to provide a home for them. Although the Tripletts have cared for these children for a considerable period of time, we do not consider this to be a compelling reason to leave the children with them particularly in light of plaintiff’s remarriage, stable lifestyle, and close, loving relationship with his children. Likewise, appellant’s absences from home in connection with his employment do not constitute a compelling reason to deprive him of the custody of his children. His present wife’s express desire to have the children in their home and willingness to care for them bolsters our conclusion in this regard.

Finally, we find the trial court’s reliance on the preference of the children as a basis for denying the father custody was clearly wrong. Even under the “best interest” test, the preference of a child is but a factor to be considered along with other circumstances in determining who should be awarded custody. Sharpe v. Sharpe, 328 So.2d 893 (La.App. 1st Cir. 1976); Cenac v. Power, 211 So.2d 408 (La.App. 1st Cir. 1968). In a contest between a parent and non-parent, a child’s preference, absent, most unusual circumstances, is not a “compelling reason” to deny a parent his paramount right of custody. See State ex rel Martin v. Talbot, 161 La. 192, 108 So. 411 (La.1926); In Re State ex rel Thoman, 218 So.2d 571 (La.1969); Acomb v. Billeiter, 175 So.2d 25 (La.App. 4th Cir. 1965). In the instant case, there are no unusual circumstances and the children’s expressed preference in favor of their grandparents is, at best, mild in nature.

The trial court found and our review of the record reveals no compelling reasons to overcome the father’s paramount right to custody in this case. The trial court erred in merely balancing the reasons for giving custody to the father against those for not giving him custody and thus lost sight of the great weight to which the parental right to custody is entitled.

Therefore, at appellees’ costs, the judgment appealed is reversed and judgment is hereby rendered in favor of Maurice Allen Jones, Sr. ordering that Vernon and Bernice Triplett forthwith surrender custody of the minors, Landra Jones and James Jones, to their father, Maurice Allen Jones, Sr., to whom permanent custody is awarded.

JUDGMENT REVERSED and RENDERED.

      . The testimony reveals that plaintiff paid court awarded child support regularly with the exception of a period of time in 1980 when he was cast in arrears for $461.34 by judgment dated June 23, 1980. Plaintiff explained this failure to pay child support as caused by two different occasions when he was hospitalized for a severe stomach problem. He paid the arrearages.

      . Judgment was rendered in open court on June 10, 1980, in accordance with stipulations and signed and filed on June 23, 1980.

      .Billie'Vernelle Jones simply testified that she was of the opinion the children were better off with her parents because her former husband was away from home a good deal as a result of his job and she did not think it was his present wife’s responsibility to care for the children. She did not seek custody for herself admittedly testifying that she was unable to stay home and care for the children.

      . The record reflects that within the resources available to the Tripletts they have made every effort to properly care for the children since January, 1975.

      . According to the psychologist’s report, James expressed his desire to live with his grandparents but indicated to the psychologist that he could cope with the situation should his custody be granted to his father. His spontaneous comments to the psychologist about his father and stepmother were generally positive. Lan-dra told her father and stepmother she desired to live with them. According to the psychologist’s report, she “expressed a definite preference for moving to live with her father and stepmother.” In his reasons for ruling, the trial judge noted that both children privately in chambers indicated to him their decision to stay with Mrs. Triplett. However, the trial judge indicated uncertainty as to why Landra had made that decision. The judge noted no animosity of the children toward anyone and felt they both “adored” their father.


text:
    Lynn Dilworth MONTELBANO, Plaintiff-Appellant, v. Joseph Ross MONTELBANO, Defendant-Appellee.
    No. 14855.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Nelson Hammons & Johnson by John L. Hammons, Shreveport, for plaintiff-appellant.
    Robert P. Waddell, Shreveport, for defendant-appellee.
    Before PRICE, MARVIN and NORRIS, JJ.
   PRICE, Judge.

This is a proceeding to change custody of a seven-year-old boy brought two and one-half years after the initial custody decree.

Lynn Dilworth Montelbano and Joseph Ross Montelbano obtained a legal separation on January 31,1979. Lynn was granted custody of their son, Chris. Ross was allowed reasonable visitation privileges. A final divorce decree was rendered on February 27, 1980, with the previous custody and support order remaining in effect. The father filed this rule on August 25, 1981, seeking custody of the child. The trial court ordered custody transferred to the father based on the court’s finding that he would provide the child a more stable and wholesome environment. On this appeal by the mother, we affirm for the reasons assigned.

In child custody matters, including those involving a change of custody, the sole criterion applicable is the best interest of the child. Bordelon v. Bordelon, 390 So.2d 1325 (La.1980); Johnston v. McCullough, 410 So.2d 1105 (La.1982); La.C.C. Art. 157. On appellate review in these matters great weight is to be given to the determination of the trial judge and his determination should be overturned only when there is a clear abuse of discretion. Bordelon v. Bordelon, supra; Cleeton v. Cleeton, 383 So.2d 1231 (La.1980).

Appellant contends the trial court has abused its discretion in this instance as there was not sufficient evidence presented to warrant a change of custody. Appellant specifically complains that the trial judge gave undue weight to inadmissible opinion testimony and was unduly critical of the activities of appellant during the period of adjustment following the breakup of her marriage with appellee. Appellant also contends the trial judge prejudged the issue after hearing only part of the evidence which contributed to an erroneous conclusion in this matter.

From our review of the record, we find no basis for the complaints regarding the procedural conduct of the trial by the trial judge. Although he did make certain comments during the presentation of evidence which could be argued to be conclu-sionary, we do not find these comments of serious prejudice or indicative that the court did not have an open mind until the complete presentation of evidence.

To understand the remaining specifications of error of appellant, a brief summary of the evidence is necessary. After her physical separation from appellee in December 1978, appellant’s pattern of living was very unsettled up until her marriage to her present husband, Roy Brister, in May 1981. She changed residences approximately twelve times during this period. In April 1981 the child was placed with appellant’s sister and her husband, Mr. and Mrs. Phillip Barron. This arrangement was agreed to by appellee and both parties had the child visit on alternate weekends. Appellant left Shreveport in January 1981 when she married her second husband in Wyoming. At this time she took the child with her to live in Wyoming. The marriage lasted only three months and appellant returned to Shreveport with the child in March 1981. She returned the child to the Barron’s home at this time where the child remained until appellant married her present husband in May 1981. At the time of the filing of this rule for change of custody in August 1981, the child was living with appellant, her husband, and his 15-year-old daughter in a three-bedroom duplex apartment in Shreveport.

During the presentation of evidence, the court permitted, over objection, Mr. and Mrs. Barron to testify as to which parent could provide the most suitable home for the child. Each testified that the appellee-father was best suited at that time.

Appellant contends this testimony was inadmissible and was relied on heavily by the trial court in reaching its decision. As a general rule lay witness opinion evidence is not admissible and should not be given consideration by a trial court. However, under the circumstances here presented, we do not find this testimony should have been excluded. These witnesses were members of appellant’s immediate family and most knowledgeable about the facts pertinent to the issue before the court. The factors on which they based their opinions were brought out and the court was in a position to properly evaluate the objectivity of the testimony and give it proper weight. The trial court must necessarily have substantial discretion in its ruling on admissibility of evidence in seeking what is in the best interest of a child.

It is apparent from the trial court’s reasons for judgment that the court was mostly concerned with placing the child with the parent who would most likely provide a stable home environment.

The court found the home of the appellee to offer a more positive promise for a stable home environment based on the past history of the parties.

Appellee, a 10-year veteran of the Shreveport Fire Department, resides in a three-bedroom house with his second wife and her daughter. The evidence shows a good relationship has been established between his wife and the child during visitation periods, and that she would welcome having the child in the home along with her daughter, who is of the same approximate age. Although appellee’s wife is employed, suitable arrangements have been made for after-school care of both their children by a neighbor.

There are some similarities in the circumstances of the parties. Both have been married to their present spouses about the same length of time. Each has a stepdaughter in the household.

There is some evidence however that the 15-year-old step-daughter of appellant, who is relied on to care for the subject child after school, has been physically abusive of the child on occasion. There is further evidence that this older child uses improper language frequently and is not a good influence on the younger child.

The trial judge noted in his reasons that appellee and his wife had a year of dating before entering into their marriage and that their relationship appeared to be a stable one. In contrast, the appellant had been dating her present husband for a period of seven months prior to her sudden decision to move to Wyoming and marry her second husband, a marriage which only lasted three months. Although appellant’s third and present marriage had existed for less than six months at the time of trial, there was evidence that she had left the matrimonial domicile at least on one occasion following a dispute with her husband.

The principal reason that the courts are reluctant to order a change in the custody of a child except where there are compelling reasons to do so is to prevent the child from being removed from the stable environment to which he has become accustomed. In this instance this principle lends little comfort to appellant as she has not afforded the child such an environment since the breakup of her marriage with appellee.

From our review of the totality of the evidence, we do not find a clear abuse of discretion by the trial judge in finding that it was in the best interest of the child to be placed in the custody of the parent whom the court found to be most stable.

The judgment is affirmed. All costs of this appeal are assessed to appellant.

      . Both of these custody awards were by consent and were not considered decrees.


author: HALL, Judge.

text:
    Kenneth W. HOLLIMAN d/b/a Holliman Ford Tractor Company, Plaintiff-Appellant, v. E. H. GRIFFIS, Defendant-Appellee.
    No. 14859.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Rehearing Denied June 17, 1982.

      Voelker, Ragland, Brackin & Crigler by Charles R. Brackin, Lake Providence, for plaintiff-appellant.
    Hamilton & Carroll by Donald K. Carroll, Oak Grove, for defendant-appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   HALL, Judge.

Plaintiff filed suit for possession of a backhoe allegedly leased by plaintiff to defendant under a written lease, the term of which had expired. A writ of sequestration was issued and the property seized. Defendant filed a motion to dissolve the sequestration alleging he had purchased the backhoe from plaintiff, and praying for damages and attorney fees. After trial, the district court found that the parties intended a sale and purchase of the equipment and that the lease purchase agreement was in reality a security device. Plaintiff having failed to establish the grounds upon which the writ was issued, judgment was rendered dissolving the writ and awarding defendant $1,500 attorney fees.

Plaintiff appealed and contends the trial court erred in finding there was a sale rather than a lease, as evidenced by the written agreement between the parties, and in dissolving the writ and awarding attorney fees. Defendant answered the appeal, contending the trial court should have awarded additional damages and that the award of attorney fees should be increased for the work done on appeal.

We amend the judgment to increase the amount of attorney fees and otherwise affirm.

LSA-C.C.P. Art. 3571 provides that one who claims the ownership or right to possession of property, or a privilege thereon, may have the property seized under a writ of sequestration if it is within the power of the defendant to conceal, dispose of, or waste the property or the revenues therefrom or remove the property from the parish during the pendency of the action. LSA-C.C.P. Art. 3506 allows the defendant to obtain the dissolution of the writ of sequestration by contradictory motion unless the plaintiff proves the grounds upon which the writ was issued. The court may allow damages for the wrongful issuance of the writ of sequestration and may include attorney fees as an element of damages.

Plaintiff argues that the trial court should not have considered evidence of the ownership of the equipment upon the trial of the motion to dissolve. Comment C following LSA C.C.P. Art. 3506 states that the article “retains the jurisprudential rule that only the grounds for the auxiliary remedy can be inquired into on the motion to dissolve, and not the merits of the main demand.”

In the case of a sequestration based on a claim of ownership, the proof offered to prove or disprove plaintiff’s grounds for issuance of the writ of sequestration is often the same proof that would be adduced at trial of the merits. As long as the evidence is relevant to the question of whether plaintiff had sufficient grounds to cause the writ to issue, the evidence must be admitted. See: Chas. A. Kaufman Co., Limited v. Gregory, 244 La. 766, 154 So.2d 392 (1963). This is true even if this evidence is the same evidence that would be adduced at trial on the merits. Therefore, it was proper for the trial court to hear evidence concerning plaintiff’s claim to ownership and to hear defendant’s evidence which tends to contradict plaintiff’s claim.

Plaintiff argues that the evidence establishes his ownership of the equipment and that the transaction with defendant was a lease, not a sale.

Although there was. conflicting evidence, there was substantial evidence supporting the trial court’s finding that the transaction between the parties was a sale as defendant claimed. Defendant and one of his employees who was present during the negotiations testified that after plaintiff said he was not in the business of renting equipment all discussions concerned a purchase of the equipment, for which a cash price of $17,960 was quoted. Their testimony was that the document styled “Equipment Lease With Option to Purchase” was a financing arrangement, that plaintiff was advised defendant was buying the equipment, and that plaintiff advised defendant the equipment would be his after all payments were made.

The document provided for installment payments of $633.45 for the first six months and $363.45 for the next 54 months. The 60 installment payments paid by defendant total $23,427, several thousand dollars more than the cash price stated.

The document provides that defendant had the option to purchase the equipment during the first six months of the term. The document contains the term “security interest” in several places and it provides that defendant will be responsible for all those things normally associated with ownership such as operating expenses, repairs, maintenance, taxes, insurance, registration, licensing, and taxes. The agreement was assigned to Ford Motor Credit Company who sent defendant installment payment booklets referring to the transaction as a “times sales contract.” Defendant received a rebate from Ford as in the case of a sale. Plaintiff treated the transaction as a sale on his income tax returns, including it as an item under gross receipts. Defendant in his tax returns depreciated the equipment as owner.

Plaintiff failed to discharge the burden of proof imposed on him by LSA-C.C.P. Art. 3506 to establish by a preponderance of the evidence the facts alleged as grounds for the issuance of the writ, that is, his ownership of the equipment seized. The preponderance of the evidence supports the trial court’s conclusion that the transaction was a sale and that defendant is the owner of the equipment. Because plaintiff failed to discharge his burden the defendant was entitled to an order dissolving the writ. Bourque v. Tyler, 401 So.2d 652 (La.App. 3d Cir. 1981), and cases cited therein.

Defendant contends on appeal that the trial court erred in failing to award him damages for the wrongful issuance of the writ. It is clear that under LSA-C.C.P. Art. 3506 the defendant is entitled to receive compensation for actual damages sustained as the result of the wrongful sequestration. However, the proof to substantiate defendant’s claim of damages must be clear and definite and not subject to conjecture. Bice v. Southside Motors, Inc., 344 So.2d 78 (La.App. 2d Cir. 1977); Talley v. Bradley, 177 So.2d 624 (La.App. 3d Cir. 1965); Ralph’s Fleet, Inc. v. American Marine Corporation, 157 So.2d 317 (La.App. 4th Cir. 1963).

In this case, the defendant said he was losing $100 per day for use of the backhoe. Defendant and an associate had secured contracts in the past from home builders for delivery of dirt for new construction sites. Defendant provided the needed backhoe and his associate provided the labor and the trucks for hauling the dirt to the construction site. Defendant failed to establish, however, that he lost any contracts because of the seizure of the backhoe. Defendant’s testimony regarding loss of income due to the seizure is not supported by any records or documentary evidence. It is clear that during the five years that defendant was in possession of the backhoe, he made very little use of the equipment and the trial court considered this fact as well as defendant’s lack of definite proof regarding his claim of loss of income in deciding not to allow damages for the denial of use of the equipment. We find that the trial court was correct in denying compensation for the claimed loss.

The trial court awarded defendant attorney fees in the sum of $1,250 which defendant asks us to increase to cover services rendered for this appeal. We find the amount of reasonable attorney fees to which plaintiff is entitled for this appeal to be $500. Accordingly, the judgment of the trial court will be amended to increase the amount of attorney fees.

For the foregoing reasons the judgment of the trial court is amended to increase the amount of attorney fees from $1,250 to $1,750 and, in all other respects, the judgment is affirmed. All costs of this appeal are assessed to the plaintiff-appellant.

Amended, and as amended, affirmed.


author: JASPER E. JONES, Judge.

text:
    John WRIGHT, Plaintiff-Appellee, v. OUACHITA COCA-COLA BOTTLING CO., INC., Defendant-Appellant.
    No. 14861.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.

      Dimos, Brown, Erskine & Burkett by S. Andrew Shealy and Donald R. Brown, Monroe, for plaintiff-appellee.
    Theus, Grisham, Davis & Leigh by Phil D. Myers, Monroe, for defendant-appellant.
    Before HALL, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   JASPER E. JONES, Judge.

This is an action in tort and redhibition. The defendant, Ouachita Coca-Cola Bottling Company, Inc., appeals a judgment against it for general damages, medical expenses, expert witness fees and attorney’s fees. The plaintiff, John Wright, answers the appeal and seeks an increase in the award of attorney’s fees. We amend and affirm.

THE FACTS

On October 27,1980, plaintiff purchased a 10-oz. bottled Coke from a vending machine at his place of employment in Monroe, Louisiana. With one of his co-workers, Daniel Drayton, nearby, Wright began to drink the Coke. After Wright had taken about three swallows from the Coke, Drayton noticed there was something in it. Drayton alerted Wright who expectorated the contents of his mouth into a garbage can. Wright then went into a bathroom and vomited.

Wright left work with stomach pains and went to the Glenwood Hospital emergency room. There he vomited several more times. Wright was given an injection and instructed to see his family doctor if he did not improve.

The next day plaintiff went to Dr. Clyde Elliot, his family doctor, complaining of nausea, vomiting, headache and diarrhea. Dr. Elliot prescribed an anti-cholegenic medication and an antibiotic for Wright.

Plaintiff was not able to return to work for four days and the first day he returned he was only able to work for a few hours before he had to leave.

Wright returned to Dr. Elliot on January 6, 1981 complaining of continued problems with burning and cramping in his stomach. Dr. Elliot prescribed a bland diet and plaintiff was somewhat improved when he returned on January 16, 1981.

Wright testified he had continued to have problems with his stomach up until the time of trial and that he occasionally missed work because of his stomach problems. Plaintiff testified that he was still unable to eat the foods he had eaten before the incident.

Wright brought this action in Monroe City Court and after a trial on the merits the city judge rendered judgment in his favor for general damages of $2,000, special damages of $350, including expert witness fee of $150, and attorney’s fees of $800. The defendant appealed and plaintiff answered the appeal.

ASSIGNMENTS OF ERROR

The defendant sets out three assignments of error: (1) that the award of $2,000 for general damages is excessive; (2) that it was error to award special damages of $350, and (3) that it was error to allow attorney’s fees. In his answer to the appeal plaintiff asks for an increase in attorney’s fees.

ASSIGNMENT # 1

Appellant contends the award of $2,000 for general damages is excessive and should be reduced to $500.

Whether or not a damage award is excessive is determined by the peculiar facts and circumstances of the particular case and only when the award is clearly excessive on the record may we look to other cases to determine the highest award which would not be an abuse of discretion. Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976); Camilo v. Wilson, 353 So.2d 249 (La.1977).

A review of the record convinces us that while this award is somewhat high, it is not an abuse of the trial judge’s much discretion in light of the injuries suffered by this plaintiff.

Wright began experiencing stomach pain and problems immediately after consuming the contaminated Coke. Those pains and associated problems have been persistent and severe enough to cause plaintiff to miss several days work. Following his consumption of the Coke, Wright had numerous episodes of vomiting and he was forced to seek treatment at an emergency room and from his family doctor. Wright’s stomach problems have forced him to make substantial changes in his eating habits.

This assignment of error is without merit.

ASSIGNMENT # 2

Through this assignment appellant contends that the trial judge erred in awarding the expert witness fee as an item of damages and awarding special damages in excess of the amount actually proved. Our review of the record establishes that plaintiff proved only the following special damages:

Glenwood Hospital emergency
room_ $ 54.00
Cost for copies of emergency
room records_ $ 5.00
Drugs_ 44.04
Dr. Clyde Elliot_ 65.00
$168.04

The record does not support an award for medical expenses or other special damages exceeding $168.04.

The expert witness fee of $150 should have been assessed as an item of costs. LSA-R.S. 13 ^S.

ASSIGNMENT # 3

Appellant here contends that attorney’s fees should not have been allowed as plaintiff was not entitled to recover in redhibition due to the apparent nature of the defect. Appellant argues that since Dray-ton was able to see the contaminant in the Coke from approximately six feet away the defect was visible on simple inspection.

The unconsumed portion of the contaminated Coke is in the record. The contaminant is a number of small particles of a substance that appears to be tobacco. We note that the contaminant in the remainder of the Coke is difficult to observe unless the bottle is held between the eye and a good light. When Drayton observed the contaminant Wright had already consumed much of the Coke. There is no indication that Drayton or plaintiff was able to see the contaminant before Wright began drinking the Coke.

The evidence amply supports the trial judge’s conclusion that “... nothing appeared to be wrong with the bottle.” There was no error in the trial judge’s conclusion that the defect was non-apparent. Reeves v. Great Atlantic and Pacific Tea Co., 370 So.2d 202 (La.App. 3d Cir. 1979), writs denied 371 So.2d 835 (La.1979) and 372 So.2d 568 (La.1979). The award of attorney’s fees was proper. LSA-C.C. art. 2545. We increase the attorney’s fees by the sum of $200 to compensate plaintiff’s attorney for services rendered by him on appeal.

The judgment is amended to reduce the award of special damages to $168.04, to increase the award of attorney’s fees to $1,000 and to assess the expert witness fee of $150 as an item of costs. The last paragraph of the judgment appealed is recast to read as follows:

“IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that there be judgment in favor of plaintiff, John Wright, and against the defendant, Oua-chita Coca-Cola Bottling Company, Inc., in the full sum of Two Thousand One Hundred Sixty-Eight and 04/100 Dollars ($2,168.04) as general damages and medical expenses, together with an additional sum of One Thousand and no/100 ($1,000.00) Dollars as attorney’s fees, together with legal interest from date of judicial demand until paid. The expert witness fee for Dr. Clyde Elliot is set at the sum of One Hundred Fifty ($150.00) and no/100 Dollars and is assessed as costs. All costs in these proceedings are assessed against the defendant.”

As AMENDED the judgment is AFFIRMED.

Defendant is cast for all costs on appeal.

      .R.S. 13:4533 — The costs of the clerk, sheriff, witness’ fees, costs of taking depositions and copies of acts used on the trial, and all other costs allowed by the court, shall be taxed as costs.

      . The actual substance of the contaminant is not known since it was not tested.

      . C.C. art. 2545 — The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of price and repayment of the expenses, including reasonable attorney’s fees, is answerable to the buyer in damages.


text:
    Derryl M. SLAUGHTER, Plaintiff-Appellant, v. GEORGIA CASUALTY & SURETY COMPANY, Burns Forest Products, Inc. and Cleotis Knox, Defendants-Appellees.
    No. 14862.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Rehearing Denied June 17, 1982.
    Bobby L. Culpepper, Jonesboro, for plaintiff-appellant.

      Hall, Lestage & Lestage by H. O. Les-tage, III, DeRidder, Dawkins, and Coyle & Carter by Robert G. Dawkins, Ruston, for defendants-appellees.
    Before HALL, JASPER JONES, and FRED W. JONES, JJ.
   HALL, Judge.

Plaintiff filed this tort suit against Burns Forest Products, Inc., Cleotis Knox, and their liability insurer, Georgia Casualty & Surety Company, seeking to recover damages for injuries he sustained in an accident which occurred while plaintiff was driving a pulpwood truck owned by his employer, Forest Care, Inc., in the course and scope of his employment. Plaintiff alleged that a pulpwood log from an oncoming truck owned and operated by Knox, who was alleged to be an employee of Burns, fell into plaintiff’s lane of travel causing plaintiff’s truck to leave the road resulting in injuries to plaintiff.

The defendants answered denying liability. Defendants Burns and Georgia Casualty filed a motion for summary judgment contending that at the time of the accident plaintiff was engaged in the execution of work pursuant to a contract between his employer and Burns for the cutting and hauling of pulpwood, a part of Burns’s regular business, making Burns a principal liable for worker’s compensation under LSA-R.S. 23:1061 , and thus making worker’s compensation plaintiff’s exclusive remedy against Bums under LSA-R.S. 23:1032. Defendants Knox and Georgia Casualty filed a motion for summary judgment contending that Knox was an employee of the principal, Burns, and that under LSA-R.S. 23:1032 plaintiff is barred from bringing a third party tort action against Knox. The trial court granted both motions for summary judgment and dismissed plaintiff’s suit against all defendants. Plaintiff appealed; we affirm.

The material facts are clearly established by the allegations of plaintiff’s petition and the depositions of plaintiff, Knox, the driver of the Knox truck, the president of Burns Forest Products, Inc. and a Burns forester who directed the operations of Forest Care, Inc., filed in support of the motions for summary judgment. The material facts on which defendants rely are not controverted by counter-affidavits or any other documents contained in the record.

Bums Forest Products, Inc. operates as a buyer and seller of timber and pulpwood, principally buying from land and timber owners and selling to Continental Can Company. Burns contracts with various producers, including Knox and Forest Care, Inc., to cut the pulpwood and deliver it to the buyer. Forest Care, Inc., plaintiff’s immediate employer, was formed for the purpose of cutting and hauling pulpwood for Burns and produced exclusively for Burns under such contracts. Knox also produced exclusively for Burns. At the time of the accident Knox and Forest Care were cutting and hauling for Burns from separate tracts of timber owned by Bums. Plaintiff, driving a Forest Care truck, was returning from the mill where he had just delivered a load of pulpwood and the Knox truck was on the way to the mill with a load of pulpwood.

When an employee (plaintiff) of a contractor (Forest Care, Inc.) is injured by the negligence of an employee (Knox) of the principal (Burns) for whom the contractor is performing a service that is a part of the principal’s business, the employee’s exclusive remedy against either his own employer or the principal is worker’s compensation and the employee has no right to recover in tort from the employer, the principal, or the principal’s employee. LSA-R.S. 23:1061; LSA-R.S. 23:1032; LSA-R.S. 23:1101; Broussard v. Heebe’s Bakery, Inc., 263 La. 561, 268 So.2d 656 (1972); Pullig v. Shreveport Packing Company, Inc. of Kansas, 342 So.2d 1217 (La.App. 2d Cir. 1977); Foster v. Western Electric Company, 258 So.2d 153 (La.App. 2d Cir. 1972).

The service being provided by Forest Care for Burns was a part of Bums’s regular trade and business, i.e., the purchase, production, sale, and delivery of pulpwood. The cutting and hauling of the standing timber owned by Bums was necessary and essential in order for Burns to fulfill its contracts to furnish pulpwood to the mill; therefore, Forest Care’s activity was a “normal and integral” part of Burns’s business. Foster v. Western Electric Company, supra, and cases cited therein. Plaintiff’s exclusive remedy against Bums, the principal, is for worker’s compensation benefits and he has no cause of action against Bums in tort. Accordingly, the summary judgment dismissing plaintiff’s tort claim against Burns and its liability insurer is correct, there being no genuine issue as to any material fact pertinent to this holding. It is inconsequential that the claim asserted against Burns is based on the alleged vicarious liability of Bums as the employer of Knox.

Plaintiff alleged in his petition that Knox was an employee of Burns and plaintiff is bound by this allegation. Furthermore, the conclusion that Knox was an employee of Burns is established not only by plaintiff’s allegation in his petition but by the facts disclosed in the depositions.

In Hickman v. Southern Pacific Transport Company, 262 La. 102, 262 So.2d 385 (1972), the supreme court outlined the factors to be considered in determining whether an employer-employee relationship exists:

“It is well understood by the courts of this State that the term independent contractor connotes a freedom of action and choice with respect to the undertaking in question and a legal responsibility on the part of the contractor in case the agreement is not fulfilled in accordance with its covenants. The relationship presupposes a contract between the parties, the independent nature of the contractor’s business and the nonexclusive means the contractor may employ in accomplishing the work. Moreover, it should appear that the contract calls for specific piecework as a unit to be done according to the independent contractor’s own methods, without being subject to the control and direction, in the performance of the service, of his employer, except as to the result of the services to be rendered. It must also appear that a specific price for the overall undertaking is agreed upon; that its duration is for a specific time and not subject to termination or discontinuance at the will of either side without a corresponding liability for its breach. Amyx v. Henry & Hall, 227 La. 364, 79 So.2d 483 (1955).
“The law further recognizes that inquiry to determine whether a relationship is that of independent contractor or that of mere servant requires, among other factors, the application of the principal test: the control over the work reserved by the employer. In applying this test it is not the supervision and control which is actually exercised which is significant, the important question is whether, from the nature of the relationship, the right to do so exists. Amyx v. Henry & Hall, ibid.”

See also: Franklin v. Haughton Timber Company, 377 So.2d 400 (La.App. 2d Cir. 1980), writ denied 380 So.2d 624 (La.1980); Hebert v. Gates, 50 So.2d 859 (La.App. 1st Cir. 1951); Deason v. Coal Operators Casualty Co., 43 So.2d 630 (La.App. 2d Cir. 1950). Compare Peterson v. Continental Can Company, 194 So.2d 171 (La.App. 2d Cir. 1967).

Knox produced pulpwood exclusively for Burns. Burns, through its employees, directed when and where Knox was to cut pulpwood and directed the quantity and size of the pulpwood Knox was to cut and deliver. Knox’s equipment and supplies were purchased through Burns who deducted amounts owed from Knox’s weekly pay check which was based on the number of cords of pulpwood cut and delivered during the week. Burns furnished worker’s compensation and liability insurance for Knox and his employees. A Burns forester checked the progress of Knox’s work daily to determine that it was being done correctly. Knox’s business was not independent; he was not free to carry out his work by his own methods but was under the immediate direction of Burns’s employees. Bums had the right to terminate its relationship with Knox without cause just as Knox had the right to leave the employ of Burns when he so desired, without incurring liability for breach of contract.

Plaintiff’s rights under the worker’s compensation law are exclusive of all other rights and remedies of plaintiff against Knox, an employee of the principal Burns. Accordingly, the summary judgment dismissing plaintiff’s tort claim against Knox and his liability insurer is correct, there being no genuine issue as to any material fact pertinent to this holding.

It having been determined that Knox was an employee of the principal and thereby immune from tort liability under the specific provisions of LSA-R.S. 23:1032, it is unnecessary to consider whether the immunity would extend to Knox if he were found to be an independent contractor, or to consider any of the issues posed in Johnson v. Alexander, 406 So.2d 1378 (La.App. 3d Cir. 1982), writs granted 412 So.2d 88 (La.1982).

The judgment of the district court is affirmed at appellant’s costs.

Affirmed.

      . LSA-R.S. 23:1061:
      “Where any person (in this section referred to as principal) undertakes to execute any work, which is a part of his trade, business, or occupation or which he had contracted to perform, and contracts with any person (in this section referred to as contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any employee employed in the execution of the work ... any compensation under this Chapter which he would have been liable to pay if the employee had been immediately employed by him; and where compensation is claimed from, or proceedings are taken against, the principal, then, in the application of this Chapter reference to the principal shall be substituted for reference to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the employee under the employer by whom he is immediately employed. ... ”

      . LSA-R.S. 23:1032:
      “The rights and remedies herein granted to an employee ... on account of an injury ... for which he is entitled to compensation under this Chapter, shall be exclusive of all other rights and remedies of such employee ... against his employer, or any principal or any ... employee of such employer or principal, for said injury.... For purposes of this Section, the word ‘principal’ shall be defined as any person who undertakes to execute any work which is a part of his trade, business or occupation in which he was engaged at the time of the injury, or which he had contracted to perform and contracts with any person for the execution thereof....”


author: SEXTON, Judge.

text:
    In re CDT, et ux. Applying For Adoption.
    No. 14863.
    Court of Appeal of Louisiana, Second Circuit.
    May 10, 1982.
    Rehearing Denied June 17, 1982.

      James E. Bookter, Bossier City, for opponent-appellant, DAYK.
    Roy L. Beard, Shreveport, for plaintiffs-appellees, CDT, et ux.
    Nesib Nader, Shreveport, for plaintiffs-appellees, CDT, et ux.
    George E. Harp, Shreveport, for JWK.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The plaintiffs in this adoption proceeding were granted an interlocutory decree of adoption. The natural mother of the child appeals from the judgment of the trial court. The names of the parties involved have been omitted in the title and in this opinion in accordance with LSA-R.S. 9:437. We reverse.

This case involves the attempted adoption of a newborn child. The child is the legal issue of a married couple who previously lived out of state. At the time of the child’s birth on December 30, 1980, the husband and wife had been physically separated for some time although no legal separation or divorce had been finalized. It is conceded by all parties that the child was born after the husband and wife separated and that the husband is not the natural father.

The record shows that the husband pursuant to LSA-R.S. 9:422.3 et seq. has executed an authentic act of surrender of the child and has consented to the adoption of the child.

The wife’s (mother) consent to the adoption is contained in an undated act before a Notary Public and two witnesses which was executed prior to the birth of the child on December 30, 1980. She executed this act in her maiden name and stated untruthfully therein that she was unmarried. She executed a written consent for the potential adoptive parents (plaintiffs) to remove the child from the hospital on December 31, 1980. It was also executed in her maiden name. The plaintiffs removed the child from the hospital and took it to their home where the child has remained since.

This situation arose when the plaintiffs, pursuant to their desire to adopt a child, placed an advertisement in the local newspaper expressing their interest in adopting a child. They received an anonymous telephone call suggesting that an attorney in Shreveport, Nesib Nader, could help them. They contacted Mr. Nader and were told that a baby would be available for adoption in December. In return, the plaintiffs were to pay for the mother’s living expenses during the pre-natal period, hospital expenses, and the expenses of the adoption. The evidence supports the finding that the plaintiffs paid these expenses, at first through Mr. Nader and then to the mother directly.

Mr. Nader filed the original petition for adoption on February 26, 1981, and the hearing on the petition for the interlocutory decree of adoption was set by the Court on April 7, 1981. However, since the Department of Health and Human Resources was unable to complete its required investigation of the plaintiffs by that time, the case was continued. On May 28, 1981, Mr. Nader filed a supplemental and amended petition alleging the existence of the legal father and requesting the appointment of a curator ad hoc to represent him. A curator ad hoc was appointed and the case was set for trial. On August 29, 1981, the mother filed an opposition to the adoption and a trial ensued.

The respondent-mother argues that no valid consent was given under either LSA-R.S. 9:422.6 or 9:429, and alternatively if consent was found that she withdrew her consent prior to the rendition of an interlocutory decree.

The plaintiffs argue that the provisions of LSA-R.S. 9:429, as amended by Acts 686 of 1979, permit the court to render an interlocutory decree of adoption if it finds the adoption in the best interest of the child.

The trial court after lengthy examination of the statutes dealing with adoption and the recent changes to those statutes determined that the undated act signed by the mother, using her maiden name and falsely stating that she was unmarried, constituted a Notarial Act of Consent under LSA-R.S. 9:429 and therefore under provisions of the statute “. . . the Court is not bound to deny the interlocutory decree if it is found to be in the best interest of the child.”

We cannot agree. Upon examination of the statutes in question we find that an “Authentic Act of Voluntary Surrender” is necessary to grant legal custody of the child identified in the act to the person or persons named or represented in the act. The requisites for an “Authentic Act of Voluntary Surrender” are contained in LSA-R.S. 9:422.6 (see footnote 2). The act executed in the instant case is so deficient that it cannot serve as an act of surrender. Of primary significance is the fact that the act was executed prior to the birth of the child and not after the fifth day following the birth of the child. Further, the parents were not identified. The mother did not identify herself properly, nor did she truthfully state her marital status. The date of birth of the child was not stated because, of course, the date was not known at the time the act was executed.

Even had the contents of the act of surrender complied with the requirements of LSA-R.S. 9:422.6 we find that since the act was signed earlier than the fifth day after the birth of the child, and since the surrendering parents were not represented by an attorney at the execution of the act of surrender, as required by LSA-R.S. 9:422.7, the act is without effect.

The legislature has provided for a specific and exclusive method by which private adoptions are to be carried out. That procedure as set forth in LSA-R.S. 9:422.3 et seq. provides for an act of surrender to be executed in the manner prescribed. Adoption laws, being in derogation of natural rights, are strictly construed in favor of parents. Roy v. Speer, 249 La. 1034, 192 So.2d 554 (1966). Thus an act that fails to comply with the requirements as set forth in LSA-R.S. 9:422.3 et seq. is without effect. Since we find that there was no valid act of surrender, we do not reach the issue of withdrawn consent, nor do we reach the issue of the best interest of the child.

For the reasons assigned, the judgment of the trial court is reversed with costs assessed to the plaintiffs.

REVERSED.

      . LSA-R.S. 9:437. Admission to hearings; inspection or publication of proceedings; indic-es; adoption records confidential
      A.All the proceedings provided in this Sub-part shall be heard by the judge in chambers, and no one shall be admitted to the hearings except the parties in interest, their attorneys, and officers of the court. Records of the proceedings shall not be open to inspection except on written authorization by the court and there shall be no publication thereof. Such written authorization shall be granted only upon a showing of compelling reasons and then only to the extent necessary to satisfy such compelling necessity. In satisfying the requirement that information shall be revealed only to the extent necessary to satisfy the compelling necessity shown, the court is authorized to use the services of a curator ad hoc appointed pursuant to Article 5091.2 of the Louisiana Code of Civil Procedure. No one except the judge presiding in the case, or his successor, shall have access to the confidential report rendered to the judge by the department. The court may punish for contempt anyone violating the provisions of this Section. Amended by Acts 1978, No. 450, § 1.
      B. The clerks of the respective juvenile courts shall keep separate indices of all suits filed in accordance with this Sub-part, and shall index these suits in the name of the parties filing the petition and in the name of the child to be adopted. These records are subject to the same safeguards as are prescribed for all proceedings. Following final disposition of the case, all confidential reports submitted by the department to the judge may in the judge’s discretion be destroyed or returned to the department or be retained in confidential files.
      C. All adoption records of agencies shall be retained in confidential files and it shall be unlawful, except for purposes directly connected with the agencies’ responsibilities in relation to adoption work, and then subject to the agencies’ rules and regulations, to disclose any information concerning any individual adoption case. Any person who violates the foregoing provision shall be fined not more than five hundred dollars or imprisoned for not more than ninety days, or both.

      . LSA-R.S. 9:422.6. Formal act of surrender; contents
      The formal act of surrender shall identify the parents or parents of the child by name, parish of domicile, age, and marital status; shall identify the child and the parish of birth of the child; shall indicate the name and address of the person or persons to whom the surrender is made, or the name and address of the representative of that person or persons; and shall recite: (1) the date of birth of the child to be surrendered and that the act is not signed earlier than the fifth day following that date; (2) that the parent or parents freely and voluntarily surrender custody of the child for the purpose of private placement and adoption; (3) that the parent or parents consent to the adoption; (4) that the parent or parents have been informed and understand that their rights as parents of the child are to be terminated, and (5) that notice and service of any pleading of any sort in any subsequent adoption proceeding is waived. Should a surrendering parent of the child be under the age of eighteen at the time of signing, the formal act shall also recite that fact and shall state that the surrendering parent under the age of eighteen is joined in signing the formal act of surrender by those individuals indicated in R.S. 9:422.3. Each necessary party must sign in the presence of a notary and two witnesses, although it is not necessary that they sign the same instrument. Added by Acts 1979, No. 686, § 1. LSA-R.S. 9:429. Interlocutory decree
      The judge, upon examining the confidential report and upon the parties being interrogated, may grant or refuse to grant an interlocutory decree during or after the hearing hereinabove provided. The clerk of court shall forward a certified copy of the decree to the department. The withdrawal of consent of the adoption of a child, once given in a notarial act by the parent or parents of the child, shall not bar an interlocutory decree of adoption, if the court considers the decree in the best interest of the child. Added by Acts 1979, No. 686, § 4.

      . LSA-R.S. 9:422.8. Effect of formal act of surrender
      The formal act of voluntary surrender grants the legal custody of the child identified in the act to the person or persons named or represented in the act. Further, the formal act of voluntary surrender grants the irrevocable consent, except as specifically provided in R.S. 9:422.10, of the surrendering parent or parents to the adoption of the child by the person or persons named or represented in the act. Should there be only one parent indicated on the birth certificate referenced in R.S. 9:422.4, the surrender by that parent alone terminates all parental right whatsoever, except as provided in R.S. 9:422.10. Added by Acts 1979, No. 686, § 1.

      . LSA-R.S. 9:422.7. Time at which formal act of surrender may be executed
      The formal authentic act of voluntary surrender shall not be signed earlier than the fifth day following the date of the birth of the child to be surrendered. The surrendering parent or parents shall be represented by an attorney at the execution of the act of surrender. Added by Acts 1979, No. 686, § 1.