text:
    STATE of Louisiana, ex rel. Warren BATISTE v. Judge, Israel AUGUSTINE, Section "I", Criminal District Court, Parish of Orleans.
    No. 81-KH-0959.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Warren Batiste, applying for writ of mandamus and stay order. Parish of Orleans. No. 266 — 727.

Denied. Moot.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana ex rel. Jamie L. WILLIAMS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-1332.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Jamie L. Williams, applying for writ of habeas corpus. Parish of Caddo. No. 111-226.

Denied.


text:
    STATE of Louisiana, ex rel. Charles Ray LOVING v. CLERK OF COURT, 21ST JUDICIAL DISTRICT, PARISH OF LIVINGSTON.
    No. 81-KH-1366.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Charles Ray Loving, applying for writ of mandamus. Parish of Livingston. Nos. 3108 and 3109.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Willie VOLSON v. Honorable Roy B. TUCK, Judge, 30th Judicial District Court, Parish of Vernon.
    No. 81-KH-1367.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Willie Volson applying for writ of mandamus. Parish of Vernon. No. 27035.

Denied.


text:
    Gordon L. CARSON v. Rita Hoffoss CROWDER, et al.
    No. 81-C-1402.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Gordon L. Carson, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bienville. No. 14473.

Writ denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Steven Edward PARKER.
    No. 81-K-1417.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Steven Edward Parker, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. AA48764-5.

Denied.


text:
    STATE of Louisiana ex rel. A. J. DAVIES v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 81-KH-1440.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re A. J. Davies, applying for supervisory writs. Parish of Caddo. No. 100-859.

Denied.


text:
    STATE of Louisiana ex rel. Ken SEAVEY (alias Randy Tucker) v. STATE of Louisiana, Honorable Frank Marullo.
    No. 81-KH-1467.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Ken Seavey (alias Randy Tucker), applying for supervisory writ and remedial writ. Parish of Orleans. No. 269-183.

Writ denied.


text:
    STATE of Louisiana v. Charles A. COLE.
    No. 81-K-1470.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Charles A. Cole, applying for supervisory writs. Parish of St. Tammany. No. 85433.

Writ denied. Relator has an adequate remedy by review in the event of conviction.


text:
    James HERNANDEZ v. CITY OF LAFAYETTE, City Council of Lafayette.
    No. 81-C-1471.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re James Hernandez, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. No. 8098.

Writ denied.


text:
    STATE of Louisiana v. Daniel A. OGG.
    No. 81-K-1473.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Daniel A. Ogg, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. 39939.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana, ex rel. Cleon DUNHURST v. CLERK OF COURT, 22ND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY.
    No. 81-KH-1476.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Cleon Dunhurst, applying for writ of mandamus. Parish of St. Tammany. No. 58794.

Denied. Moot. Hearing set for June 18, 1981.


text:
    STATE of Louisiana, ex rel. Lionel WILLIAMS v. Hayden J. DEES/Warden, Dixon Correctional Institute.
    No. 81-KH-1499.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Lionel Williams, applying for writ of certiorari. Parish of Orleans. No. 248— 699.

Denied.


text:
    STATE of Louisiana v. Johnny D. COLEMAN, Jr.
    No. 81-K-1508.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Johnny D. Coleman, Jr., applying for writ of certiorari. Parish of East Baton Rouge. No. 11-80-23.

Writ denied.


text:
    STATE of Louisiana v. Joseph P. MANGUNO.
    No. 81-K-1513.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Joseph P. Manguno, applying for writ of review, and a stay order. Parish of Orleans. No. 281-714.

Writ denied.


text:
    Albert BURNS v. Henry SAUVIAC.
    No. 81-C-1522.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Albert Bums, applying for writs of certiorari, prohibition and mandamus, to the Civil District Court. Parish of Orleans. No. 12580.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Anibal PEREZ and Jorge Diaz.
    No. 81-K-1380.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Anibal Perez and Jorge Diaz, applying for writ of certiorari. Parish of Jefferson. No. 81-709.

Granted. The ruling of the trial court is reversed, and the identity of the confidential informant must be divulged.

MARCUS, and BLANCHE, JJ., dissent.


text:
    Roy B. SCHAEFER, Jr. v. Bill LYNCH and the Times-Picayune Publishing Corporation, et al.
    No. 81-C-1409.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Bill Lynch and the Times-Picayune Publishing Corporation, et al., applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 193676.

Granted.


text:
    STATE of Louisiana ex rel. Daymomd SANDERS v. Frank J. SHEA, Judge, Section "G", Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 81-KH-1435.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Daymond Sanders, applying for writ of mandamus. Parish of Orleans. No. 274-214.

Writ granted. The trial court is ordered to furnish relator with a copy of his Boykin transcript.


text:
    STATE of Louisiana ex rel. Larry EDMOND v. STATE of Louisiana.
    No. 81-KH-1454.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Larry Edmond, applying for writs of certiorari and review. Parish of Orleans. Nos. 272-900 and 272-899.

Writ granted. The trial court is ordered to grant relator an out of time appeal.


text:
    Tony FERRAND v. KAISER ALUMINUM AND CHEMICAL CORPORATION.
    No. 81-C-1458.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Kaiser Aluminum and Chemical Corporation, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. No. 11948.

Granted.


text:
    STATE of Louisiana ex rel. Melvin BUJOL v. CLERK OF COURT, CRIMINAL DISTRICT COURT, SECTION "E", ORLEANS PARISH, STATE OF LOUISIANA.
    No. 81-KH-1466.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Melvin Bujol, applying for writ of mandamus. Parish of Orleans. No. 217— 377.

Granted. Trial court is ordered to furnish relator a Boykin transcript.


text:
    STATE of Louisiana ex rel. Brian Keith PETE v. CLERK OF COURT, FOURTEENTH JUDICIAL DISTRICT.
    No. 81-KH-1493.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Brian Keith Pete, applying for remedial writs. Parish of Calcasieu. No. 10449-80.

Writ granted. It is ordered that the relator shall be granted a transcript of his Boykin proceeding.


text:
    Richard C. VALENTINE, III v. TOWN OF BUNKIE, et al.
    No. 81-C-1537.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Richard C. Valentine, III, applying for supervisory writs and stay order. Parish of Avoyelles.

Ruling of the trial judge is reversed. It is ordered that relators be permitted to withdraw as counsel of record.


text:
    Griffin F. PHILLIPS v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 81-C-1273.
    Supreme Court of Louisiana.
    June 22, 1981.
   In re Griffin F. Phillips, applying for reconsideration of writ not considered, of June 5,1981, First Circuit, Court of Appeal. Parish of East Baton Rouge. 400 So.2d 1091.

Denied.


author: DIXON, C. J.,

text:
    STATE of Louisiana In the Interest of Keith G. FORET and Kevin Lavergne.
    No. 81-C-1544.
    Supreme Court of Louisiana.
    June 26, 1981.
   In re Keith G. Foret and Kevin Lavergne, applying for reconsideration of denied writ of June 22, 1981, and stay order. Court of Appeal, Fourth Circuit. Nos. 11742, 11743 and 11744. Parish of Jefferson.

Denied.

DIXON, C. J.,

concurs in the denial. Applicant may apply again in the event of an adverse ruling.


text:
    STATE of Louisiana ex rel. John M. SMITH v. STATE of Louisiana.
    No. 81-KH-1475.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re John M. Smith, applying for writ of habeas corpus. Parish of Orleans. No. 275-376.

Granted. Consolidated with pending appeal in No. 81 — KA-0221.


text:
    STATE of Louisiana, ex rel. George D. YARBROUGH v. STATE of Louisiana.
    No. 81-KH-1039.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re George D. Yarbrough, applying for remedial writs. Parish of Orleans. No. 276-402.

Granted and consolidated with appeal, No. 81 — KA-0278 and 81-KA-1587.


text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. Bushnell C. SEAVEY.
    No. 81-C-1630.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Bushnell C. Seavey, applying for writ of certiorari and review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 399 So.2d 642.

Denied. La.C.Cr.P. Art. 532 is permissive, not mandatory.

WATSON and LEMMON, JJ., are re-cused.


text:
    STATE of Louisiana v. Caster Dale SIMS.
    No. 81-K-1596.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Caster Dale Sims, applying for writs of review and certiorari. Parish of Claiborne. Nos. 13199, 14000 and T-12601-81.

Writ denied. Application premature as defendant has not been sentenced. Aggregate sentences in this case will determine defendant’s right to appeal to this court under our appellate jurisdiction or to seek writs under our supervisory jurisdiction. See, State v. McCarroll, 337 So.2d 475 (La.1976).


text:
    Gary A. GODWIN and Jerome B. Haggard v. Rubin DENBY, Carey Arceneaux and State Farm Fire and Casualty Company.
    No. 81-C-1621.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re State Farm Fire and Casualty Company, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. 399 So.2d 655.

Granted. Judgment of Court of Appeal is reversed. All issues are triable by jury. See, Barberito v. Green, 275 So.2d 407 (La. 1973).

LEMMON, J., dissents from order.


text:
    Charles Gene ROGERS, et al. v. Otis R. and Marie WILLIAMS.
    No. 81-C-1620.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Otis R. and Marie Williams, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Livingston. 400 So.2d 1110.

Not considered. Not timely.


text:
    STATE of Louisiana ex rel. Timothy BARRA v. STATE of Louisiana, Honorable J. Winsberg, Judge.
    No. 81-KH-1758.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Timothy Barra, applying for writs of supervisory and remedial writs. Parish of Orleans. No. 275-854.

Denied.


text:
    CITY OF BATON ROUGE v. Valvis (Joe) KIMBLE.
    No. 81-K-1714.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Valvis (Joe) Kimble, applying for writs of East Baton Rouge. No. 87873.

Denied on the showing made.


text:
    M. P. DUMESNIL CONSTRUCTION CO., INC. v. JEFFERSON PARISH DEPARTMENT OF PUBLIC WORKS, Jefferson Parish Purchasing Department, and Jefferson Parish Council.
    No. 81-C-1726.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re M. P. Dumesnil Construction Co., Inc., applying for supervisory writs. Parish of Jefferson. No. 254-235.

Denied.


text:
    STATE of Louisiana ex rel. Elmo GILTON v. Frank MARULLO, Jr., Judge Criminal District Court, Parish of Orleans.
    No. 80-KH-2508.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Elmo Gilton, applying for writ of mandamus. Parish of Orleans. No. 255-745.

Denied.


text:
    STATE of Louisiana ex rel. Curtis GORDON v. Judge Israel M. AUGUSTINE, Jr.
    No. 81-KH-1035.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Curtis Gordon, applying for writs of mandamus. Parish of Orleans. No. 248-250.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Carlo D. MAENZA v. Louis G. DeSONIER, Jr., Judge 24th Judicial District Court, Parish of Jefferson, State of Louisiana.
    No. 81-KH-1130.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Carlo D. Maenza, applying for writs of mandamus. Parish of Jefferson. No. 75-198.

Denied. Moot.


text:
    Joseph BAILEY, III v. STATE of Louisiana.
    No. 81-KH-1198.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Joseph Bailey, III, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. No. 233-319.

Denied. Relator must first file in District Court.


text:
    STATE of Louisiana v. Maurice GROSSEN.
    No. 81-K-1444.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Maurice Grossen, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. M45116.

Writ denied.


text:
    STATE of Louisiana v. Lana MORGAN.
    No. 81-K-1557.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Lana Morgan, applying for writs of certiorari, prohibition, and mandamus. Parish of St. Bernard. No. 62-046.

Denied.


text:
    Karen SABO v. DEPARTMENT OF POLICE.
    No. 81-C-1577.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Karen Sabo, applying for writs of certiorari, or review. Parish of Orleans. No. 10296.

Writ denied.


text:
    STATE of Louisiana v. George UPTON.
    No. 81-K-1578.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re George Upton, applying for writs of certiorari, prohibition and review. Parish of Caddo. No. 106772.

Writ denied.


text:
    STATE of Louisiana v. Oscar ARMSTRONG and Leonard Perkins.
    No. 81-K-1579.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Oscar Armstrong and Leonard Perkins, applying for supervisory writs of cer-tiorari, prohibition and mandamus. Parish of East Baton Rouge. Nos. 11-80-890 and 11-80-891.

Denied.


text:
    STATE of Louisiana ex rel. Larry SYLVESTER v. Judge Joseph A. LAHAY.
    No. 81-KH-1581.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Larry Sylvester, applying for writs of mandamus. Parish of St. Landry. No. 28-054.

Denied. Moot.


text:
    STATE of Louisiana v. Ben SMITH and Tyrone Smith.
    No. 81-K-1618.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Ben Smith and Tyrone Smith, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Orleans. No. 281-123.

Denied.

CALOGERO, DENNIS, and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Jeffrey E. STARKS.
    No. 81-K-1619.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Jeffrey E. Starks, applying for remedial writ. Parish of West Baton Rouge. Nos. 89688 and 89689.

Denied.

DENNIS and MARCUS, JJ., would grant the writ.


text:
    Elizabeth Louise Mayo BRITTON v. Albert Jefferson BRITTON, et al.
    No. 81-C-1640.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Albert Jefferson Britton, et al., applying for writs of certiorari, prohibition, mandamus, and a stay order to the Court of Appeal, Second Circuit. Parish of Ouachi-ta. No. 14553.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Rosa Mary FRANKLIN.
    No. 81-K-1641.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Rosa Mary Franklin, applying for writ of certiorari. Parish of Iberville. No. 3596-80.

Denied.

WATSON, and LEMMON, JJ., would grant the writ.


text:
    Debra Boyd COURTNEY v. Joseph Ernest COURTNEY.
    No. 81-C-1702.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Joseph Ernest Courtney, applying for writs of certiorari, prohibition and mandamus, to the Court of Appeal, Fourth Circuit. Parish of St. Bernard. No. 12614.

Writ denied on showing made.

MARCUS, WATSON, and LEMMON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Junius FREEMAN.
    No. 81-K-1703.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Junius Freeman, applying fpr writs of certiorari, prohibition, mandamus, and a stay order. Parish of Orleans. Nos. 282— 366, 282-370 and 282-377.

Denied. Adequate remedy by review in event of conviction.


text:
    STATE of Louisiana v. John SPELLMAN.
    No. 81-K-1704.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re John Spellman, applying for writs of certiorari, prohibition and mandamus. Parish of St. Bernard. No. 61-337.

Denied.

DENNIS, J., would grant the writ and reduce the bail to a non-excessive amount.


text:
    STATE of Louisiana v. Sharon RUDOLPH.
    No. 63227.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Sharon Rudolph, on motion to file application for an out of time rehearing. Parish of Orleans. No. 253527.

Denied.

DENNIS, J., would grant the motion to allow application for rehearing to be filed.


text:
    STATE of Louisiana ex rel. John JACKSON v. Warden, Frank BLACKBURN, Louisiana State Penitentiary.
    No. 66981.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re John Jackson, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 254 — 536.

Denied.


text:
    STATE of Louisiana ex rel. Tyrone MITCHELL v. CRIMINAL DISTRICT COURT PARISH OF ORLEANS SECTION I.
    No. 81-KH-0765.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Tyrone Mitchell, applying for writ of mandamus. Parish of Orleans. No. 258-368.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Leonard JOHNSON v. The CRIMINAL DISTRICT COURT, SECTION "D", PARISH OF ORLEANS.
    No. 81-KH-0789.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Leonard Johnson, applying for writ of mandamus. Parish of Orleans. No. 253-115.

Denied.


text:
    STATE of Louisiana v. James R. WILLIS, Jr.
    No. 81-KA-0847.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re James R. Willis, Jr., appeal from the Orleans Parish, Juvenile Court. No. 183-057. Transferred to this Court, from the Fourth Circuit, Court of Appeal.

Treating the appeal as an application for writs, writs are denied.


text:
    STATE of Louisiana ex rel. William Frederick OLIVER v. DISTRICT ATTORNEYS OFFICE, ORLEANS PARISH CRIMINAL DISTRICT COURT.
    No. 81-KH-0905.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re William Frederick Oliver, applying for writs of mandamus. Parish of Orleans. No. 276255.

Granted. The motion for speedy trial is transferred for action to the District Court.


text:
    STATE of Louisiana v. Liza LITTLETON, Joseph Lombardo and Edward Mullen.
    No. 81-K-1495.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re State of Louisiana, through the District Attorney Harry F. Connick, applying for writs of certiorari or review. Parish of Orleans. No. 281-790.

Writ granted.


text:
    In re IMPOUNDING OF TRANSCRIPTS OF ADDITIONAL GRAND JURY TESTIMONY.
    No. 81-K-1590.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re State of Louisiana, applying for writ of review. Parish of Plaquemine.

Ruling of the trial court set aside. Transcripts of the additional grand jury proceedings should be returned to custody of District Attorney ad hoc, under the supervision of Judge Julian Bailes.


text:
    STATE of Louisiana v. Lee MATTHEWS.
    No. 81-K-1591.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Lee Matthews, applying for writ of certiorari and stay order. Parish of Jefferson. No. 80-3496.

Writ granted.


text:
    Mark B. HOYT v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 81-C-1595.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Charles R. Williams and State Farm Mutual Automobile Insurance Company, et al., applying for writs of certiorari, prohibition and mandamus. Parish of Natchitoch-es. No. 37457.

Granted. Remanded to Court of Appeal to be heard on the merits.

DENNIS, J., would simply grant the writ.


text:
    STATE of Louisiana v. Jonas M. JOHNSON, Jr.
    No. 81-K-1598.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for writ of certiorari, or review. Parish of Orleans. No. 280-398.

Granted.


text:
    STATE of Louisiana v. Earl D. WHITSTINE.
    No. 81-K-1634.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Earl D. Whitstine, applying for writs of certiorari, review, prohibition, mandamus and a stay order. Parish of Grant. No. 23509.

Granted. The order revoking probation is reversed in as much as relator’s probation expired in November, 1979.


text:
    STATE of Louisiana v. Cleo MATTHEWS.
    No. 81-K-1691.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Cleo Matthews, applying for writ of certiorari, and a stay order. Parish of Jefferson. No. 810106.

Writ granted.


text:
    STATE of Louisiana v. William THOM, Sr.
    No. 81-K-1734.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re William Thom, Sr., applying for supervisory writs. Parish of Jefferson. No. 80-884.

Granted. The trial court is ordered to hold an evidentiary hearing to determine whether defendant’s health situation requires the admittance to bail. Remanded.


text:
    STATE of Louisiana v. Jimmy Lee HERNANDEZ.
    No. 81-K-1669.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Jimmy Lee Hernandez, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of DeSoto. No. 43554.

Writ


text:
    STATE of Louisiana v. Richard BROUSSARD.
    No. 81-K-1647.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Richard Broussard, applying for writs of certiorari, prohibition, mandamus, and a stay order. Parish of Orleans. No. 264 — 408.

Granted.


text:
    Lucius DOUCET, D. D. S. v. DENTAL HEALTH PLANS MANAGEMENT CORPORATION and Guaranty Income Life Insurance Company.
    No. 81-C-1635.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Dental Health Plans Management Corporation and Guaranty Income Life Insurance Company, applying for remedial writs. Parish of St. Landry. No. 81591-2.

Writ granted. The case is remanded to the Court of Appeal for a decision on the merits of relator’s writ application.


text:
    STATE of Louisiana ex rel. Travis Eugene BARKLEY v. STATE of Louisiana.
    No. 81-KH-1500.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re Travis Eugene Barkley, applying for remedial writs. Parish of Terrebonne.

Granted in part and denied in part. It is ordered that relator be allowed to serve as his own co-counsel on appeal. Otherwise, the writ is denied.


text:
    STATE of Louisiana v. James E. JONES.
    No. 81-K-1662.
    Supreme Court of Louisiana.
    July 2, 1981.
   In re James E. Jones, applying for rehearing. Parish of Jefferson. No. 81-1153.

Application for “rehearing denied. Relator Jones, now complaining of a ruling of this Court which affected the manner in which his trial was conducted, is at liberty in connection with any appeal he might take to assign as error this Court’s ruling permitting Johnson’s attorney to invoke the Fifth Amendment on behalf of his client. This is so withstanding that we here find Jones’ efforts for “rehearing” on Johnson’s application not well taken.


text:
    STATE of Louisiana in the Interest of Lilanne BORDELON.
    No. 81-C-1802.
    Supreme Court of Louisiana.
    July 10, 1981.
   In re Sylva Bordelon, applying for writs of certiorari, or review. Parish of Jefferson. No. 55916.

Granted.


text:
    In the Matter of Amy PALMER and Megan Palmer. Mrs. Donna Lee Messina, Wife of Michael PALMER v. Michael PALMER.
    No. 81-C-1832.
    Supreme Court of Louisiana.
    July 14, 1981.
   In re Donna Lee Messina, applying for writs of certiorari, prohibition, and mandamus. Parish of Orleans. No. 81-5476.

Denied.


text:
    Patricia J. Bush, Wife of/and Joseph F. BUSH v. Grace A. Lee, Wife of/and Robert E. LEE.
    No. 81-C-1855.
    Supreme Court of Louisiana.
    July 15, 1981.
   In re Grace A. Lee, wife of/and Robert E. Lee, applying for writ of review and a stay order, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 12666.

Denied.


text:
    In the Matter of Vernon P. THOMAS.
    No. 81-K-1858.
    Supreme Court of Louisiana.
    July 15, 1981.
   In re Vernon P. Thomas, applying for emergency writs and a stay of sentence. Orleans Parish. No. 276-267.

Execution of sentence for contempt stayed until further orders of this Court.


text:
    STATE of Louisiana v. Houston WISENBAKER.
    No. 81-K-1860.
    Supreme Court of Louisiana.
    July 16, 1981.
   In re Houston Wisenbaker, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Rapides. No. 189-715.

On the showing made, denied.


text:
    STATE of Louisiana v. William F. DELOY.
    No. 81-K-1870.
    Supreme Court of Louisiana.
    July 16, 1981.
   In re William F. Deloy, applying for emergency writs and a stay order. Parish of Orleans. No. 282-439.

Writ denied.


text:
    STATE of Louisiana v. James E. COPELAND.
    No. 81-K-1820.
    Supreme Court of Louisiana.
    July 17, 1981.
   In re James E. Copeland, applying for remedial writs. Parish of Tangipahoa. No. 44715.

Writ granted. This case is remanded to the district court to allow appellant to file and the Court below to act upon motion for new trial based upon newly discovered evidence.


text:
    STATE of Louisiana in Interest of Keith FORET. STATE of Louisiana in Interest of Kevin LAVERGNE.
    No. 81-O-1811.
    Supreme Court of Louisiana.
    July 17, 1981.
   In re Keith Foret and Kevin Lavergne, applying for writs of certiorari and a stay order. Parish of Jefferson. 398 So.2d 82 and 398 So.2d '78.

Stay order recalled and set aside; application for writs denied.


text:
    STATE of Louisiana v. Vernon WAGNER.
    No. 81-K-1886.
    Supreme Court of Louisiana.
    July 20, 1981.
   In re Vernon Wagner, applying for writ of certiorari and a stay order. Parish of Orleans. No. 280-099.

Added condition of probation that defendant serve one month in jail stayed until further orders of this Court.


text:
    STATE of Louisiana v. Sandy ALEXANDER, Stanley Alexander and Carnell Alexander.
    No. 81-K-1885.
    Supreme Court of Louisiana.
    July 20, 1981.
   In re State of Louisiana, applying for supervisory writs and stay order. Parish of St. Tammany. No. 79362.

Denied.


text:
    STATE of Louisiana v. Wayne DAVOLL.
    No. 81-K-1889.
    Supreme Court of Louisiana.
    July 20, 1981.
   In re Wayne Davoll, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Iberia. No. 31887.

On the showing made, the application is denied.


text:
    Mary McCASTLE, et al. v. ROLLINS ENVIRONMENTAL SERVICES (LOUISIANA), INC.
    No. 81-C-1891.
    Supreme Court of Louisiana.
    July 21, 1981.
   In re Mary McCastle, et al., applying for remedial writs. Parish of East Baton Rouge. No. 244253.

Denied.


text:
    Lynn B. DEAN v. Hillary NUNEZ.
    No. 81-C-1898.
    Supreme Court of Louisiana.
    July 21, 1981.
   In re Lynn B. Dean, applying for writ of certiorari, prohibition, mandamus, and for a stay order. Parish of St. Bernard. No. 12629.

Denied.


text:
    STATE of Louisiana v. Emery BLACKBURN.
    No. 81-K-1882.
    Supreme Court of Louisiana.
    July 22, 1981.
   In re Emery Blackburn, applying for writs of certiorari, review, prohibition and mandamus. Parish of Washington. No. 35-387.

Denied.


text:
    In the Matter of Amy PALMER and Megan Palmer. Mrs. Donna Lee Messina, Wife of Michael PALMER v. Michael PALMER.
    No. 81-C-1969.
    Supreme Court of Louisiana.
    July 27, 1981.
   In re Donna Lee Messina, applying for writs of certiorari, or review. Parish of Orleans. Nos. 81-5925 and 81-5476.

Denied.


text:
    Lucius DOUCET, D. D. S. v. DENTAL HEALTH MANAGEMENT CORPORATION and Guaranty Income Life Insurance Company.
    No. 81-C-1900.
    Supreme Court of Louisiana.
    July 29, 1981.
   In re Dental Health Plans Management Corporation and Guaranty Income Life Insurance Company, applying for remedial writs. Parish of St. Landry. No. 81591 — 2.

Granted. The case is again remanded to the Court of Appeal for consideration of the merits of relator’s writ application. Copy of pertinent contract not attached to relator’s writ application to the court of appeal, was, we have determined, filed in the district court, has been attached to application filed here, and is herewith being forwarded to the Court of Appeal for consideration.


text:
    STATE of Louisiana v. Larry DERRYBERRY.
    No. 81-K-1890.
    Supreme Court of Louisiana.
    July 30, 1981.
   In re Larry Derryberry, applying for writ of review, and stay order. Parish of East Baton Rouge. No. 9-80-525.

Since relator’s sentence has been suspended and relator has been placed on probation, there is no necessity for a stay of execution of sentence pending consideration of the merits of relator’s application. The stay order is denied, but relator may apply for a stay of execution if the situation changes before disposition of the application.


text:
    STATE of Louisiana v. Bobby ROBERTS.
    No. 81-K-1994.
    Supreme Court of Louisiana.
    July 30, 1981.
   In re Bobby Roberts, applying for supervisory writs. Parish of Rapides. No. 19674.

Denied.


author: CUTRER, Judge.

text:
    STELLY CONSTRUCTION, INC., Plaintiff-Appellee, v. Daniel RICHARD, Defendant-Appellant.
    No. 7531.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 19, 1981.
    Rehearing Denied Jan. 19, 1981.
    Donald J. Richard, Opelousas, for defendant-appellant.
    John H. Weinstein, Opelousas, Devillier & Ardoin, Kenneth Pitre, Eunice, Lewis & Lewis, Opelousas, Sandoz, Sandoz & Schiff, Leslie J. Schiff, Opelousas, for plaintiff-ap-pellee.
    Before CUTRER, SWIFT and DOUCET, JJ.
   CUTRER, Judge.

MOTION FOR REHEARING

On January 23, 1978, Stelly Construction, Inc. brought suit against Daniel Richard, seeking to recover $1,920.00 allegedly due Stelly for the clearing of Richard’s land. On May 3, 1978, Planters Securities Company, Inc. brought suit against Daniel Richard and Stelly Construction, Inc. for damages arising out of an alleged trespass on Planters’ land by the defendants. These two cases were consolidated for trial.

After trial on the merits, the trial court rendered judgment in favor of Stelly and against Richard. Although the judgment was captioned with the titles and docket numbers of both suits, it was silent as to the claim of Planters against Richard and Stelly. A motion for a new trial, styled “Planters Securities Company, Inc. v. Daniel Richard, et al.,” was timely filed and was denied.

Richard then obtained an order of appeal captioned “Planters Securities Co., Inc. v. Daniel Richard.” After being advised that “Planters Securities Co., Inc. v. Daniel Richard ” had been settled, this court dismissed the appeal of Richard, ex proprio motu, on the grounds that Richard had not effectuated an appeal in the case of “Stelly Construction, Inc. v. Daniel Richard” because the order on appeal only pertained to the Consolidated case of “Planters Securities Co., Inc. v. Daniel Richard.” See: Planters Securities Co., Inc. v. Daniel Richard, et al. and Stelly Construction, Inc. v. Daniel Richard,” 387 So.2d 1185 (La.App. 3rd Cir. 1980).

On rehearing this court reinstated the appeal finding that the order of appeal obtained by Richard contained an error in the caption and that Richard intended to and did appeal the judgment rendered in the Stelly case and not the Planters case. See: Planters Securities Co., Inc. v. Daniel Richard, et al. and Stelly Construction, Inc. v. Daniel Richard, 387 So.2d 1185 (La.App. 3rd Cir. 1980).

In accord with this court’s judgment on rehearing the case of “Stelly Construction Co., Inc. v. Daniel Richard,” was relodged on August 14, 1980, and on that date new Notices of Appeal were mailed to all counsel of record. Attached to the new Notices of Appeal was a Special Notice of Rule Changes, which is duplicated, in pertinent part, below:

SPECIAL NOTICE OF RULE CHANGES
COURT OF APPEAL, THIRD CIRCUIT
Section 5(b), Rule VII of the Uniform Rules-Courts of Appeal has been amended, effective October 3, 1978, to provide that the court may, ex proprio motu, consider abandoned and dismiss appeals in those cases in which the appellant has neither appeared nor filed a brief prior to the time the case is called for oral argument, or the time the case is submitted without oral argument on the docket of the court.
On October 11, 1978, the judges of the Court of Appeal, Third Circuit, adopted the following internal court rule to implement the above amendment to Section 5(b), Rule VII, Uniform Rules-Courts of Appeal. This rule provides as follows:
In cases to be submitted without oral argument on the docket of the Court, either because (1) no party has requested oral argument or (2) all parties have waived their rights to oral argument by failure to file briefs timely, the case will be docketed for submission without oral argument on the 60th day after the filing of the transcript of appeal in this Court. If the appellant’s brief is not filed within these 60 days, the Court shall, ex proprio motu, consider the appeal abandoned and order its dismissal. If the appellant files a brief within the last 10 days of these 60 days, the appellee shall have 10 days from the date the appellant files his brief in which to file a brief.

On September 2, 1980, the Clerk’s office sent counsel for the appellant a letter informing him that since neither the appellant nor the appellees had timely requested oral argument in this case, under Rule VIII Section 1 of the Uniform Rules, Courts of Appeal, the case would be submitted to the court for decision without oral argument. The letter also directed counsel’s attention to the internal rule implementing Rule VII Section 5(b) of the Uniform Rules, Courts of Appeal, that his appeal would be dismissed if he failed to file his brief within sixty (60) days from the date the case was re-docketed.

Under the above rule, the appellant’s brief was due on or before October 13,1980. No appellant brief having been timely filed, this court, ex proprio motu, rendered a judgment on November 6, 1980, dismissing the appellant’s appeal. From this judgment of dismissal the appellant timely moved for a rehearing. The appellant did finally file a brief on the merits in this matter, but not until October 17, 1980, which brief was untimely under the above quoted rules.

The appellant does not allege that he was not aware of these rule changes or that he failed to receive a copy thereof, but instead, argues that the rule is unenforceable because it is contrary to LSA-C.C.P. articles 561 and 2165. These articles read as follows:

“Art. 561. Abandonment in Trial and Appellate Court.
“An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. This provision shall be operative without formal order, but on ex parte motion of any party or other interested person, the trial court shall enter a formal order of dismissal as of the date of its abandonment.
“An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year. As amended Acts 1956, No. 36, § 1.”
“Art. 2165. Appeals deemed abandoned.
“An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court, not to be less than one year. As amended Acts 1956, No. 36, § 1.”

The above articles refer to dismissal of suits which have been abandoned by the parties who fail to take any steps in the prosecution for five years (trial court) or one year (appellate court). Pursuant to these articles the Uniform Rules, Courts of Appeal adopted Rule VII Section 5(a), which reads, in part, as follows:

“The court may, ex proprio motu:
“(a) Consider as abandoned and dismiss any appeal now or hereafter pending in which one year has elapsed without any steps having been taken in the prosecution thereof, in accordance with the provisions of Articles 561 and 2165 of the Code of Civil Procedure, as amended;

Under the above articles and Uniform Rule, if no steps are taken in the prosecution of an appeal for a period of one year, the appeal is declared to be statutorily abandoned and the Court of Appeal must dismiss same. The abandonment under the provisions of these articles cannot be waived by the court. The appellate court is left no discretion except to dismiss the appeal under these provisions.

The above provisions, however, do not restrict the rule making authority as contended by appellant.

The Uniform Rules of the Courts of Appeal have the longstanding Rule VII Section 5(b), which reads, in part, as follows:

“The court may, ex proprio motu:
* * * * * *
“(b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed brief prior to the time the case is called for argument....”

This rule has been in effect for many years and many cases have been dismissed under the provisions thereof, even though the one year period of Articles 561 and 2165 had not expired. As an example, see the cases of: Reed v. Sisson, 304 So.2d 877 (La.App. 2nd Cir. 1974); Hamilton v. South Central Bell Telephone Co., 291 So.2d 472 (La.App. 3rd Cir. 1974); International Union of Operating Engineers, Local 407 v. Derouen, 268 So.2d 723 (La.App. 3rd Cir. 1972); Wilkinson v. Southwestern Electric Power Company, 268 So.2d 330 (La.App. 2nd Cir. 1972); Greenwood Sanitation Company, Inc. v. Whittington, 268 So.2d 331 (La.App. 2nd Cir. 1972); and Dunnam v. Gipson, 262 So.2d 825 (La.App. 2nd Cir. 1972).

The validity of this rule has been upheld by our Supreme Court in the case of Walker v. Jones, 253 La. 908, 221 So.2d 44 (1969), wherein Justice McCaleb, as author of the opinion, held as follows:

“Section 5(b) of the Rule VII of the Uniform Rules, Courts of Appeal, is a valid exercise of the rule-making power vested in these courts by Articles 193 and 2162 of the Code of Civil Procedure and conforms with the well-settled jurisprudence of this Court . The rule confers discretionary authority, providing as it does, that the court may consider abandoned and dismiss an appeal in any case in which the appellant has neither appeared nor filed brief prior to the date fixed for submission of the case. The rule being permissive in nature, the action of an appellate court, in dismissing an appeal, as abandoned, must always be reasonably exercised with due consideration being given to the principle that the law favors appeals and they should not be dismissed as abandoned except for sub-stantia} causes, even though the appellant or its counsel has failed to comply fully with the letter of the court rule.

This brings us to a discussion of our “60 day” internal rule that the appellant complains of.

In 1977 this court put into operation a central staff for the purpose of screening appeals. Immediately after the organization of the staff, we began having problems due to the fact that appellants’ briefs were not filed by the time the staff began its screening review. To remedy this problem we requested an amendment to Rule VII, Section 5(b), which now reads as follows:

“(b) Consider abandoned and dismiss the appeal in any case in which the appellant has neither appeared nor filed a brief prior to the time the case is called for oral argument, or the time the case is submitted without oral argument on the docket of the court.”

(The underlined portion was added on our request.)

Following the adoption of the amendment, this court adopted the rule which is set forth herein and of which appellant complains. We send to all counsel, in which cases are to be submitted without oral argument, a copy of this rule.

This rule has been in effect since October 3, 1978 and has provided an effective method of furthering the screening process of this court and further assisting in the orderly processing of appellate reviews.

The rule in question, substantially the same as the longstanding Rule VII Section 5(b), is a valid exercise of the rule making power of this court vested by Articles 193 and 2162 of the Code of Civil Procedure. It conforms with the well-settled jurisprudence of this state, Walker v. Jones, supra.

The appellant in this case failed to file his brief timely, not because he did not receive a notice of and was unaware of the rule and its time limits, but because he took the position that our rule was unenforceable. This presents, in our opinion, a substantial cause to declare the appeal abandoned. Thus, a dismissal of same is in order.

For these reasons, the appellant’s motion for a rehearing is denied.

MOTION DENIED.

         Article 193 C.C.P. vests general authority in all courts to adopt rules for the conduct of judicial business before it, including those governing matters of practice and procedure ‘which are not contrary to the rules provided by law.’ And Article 2162 C.C.P. provides in part: ‘An appeal can be dismissed * * * if, under the rules of the appellate court, the appeal has been abandoned. ’

         See Grand Lodge of the State of Louisiana, Knights of Pythias v. Natchitoches Lodge No. 89, Knights of Pythias, 215 La. 300, 40 So.2d 472; Hayes v. Petry, 218 La. 730, 50 So.2d 821; Antoon v. Mayor and City Commissioners and Building Inspector of City of Natchitoches, 218 La. 732, 50 So. 822; Frey v. Ingram, 219 La. 159, 52 So.2d 531; White v. Sharp, 220 La. 928, 57 So.2d 898; Peace v. Love, 223 La. 772, 66 So.2d 803; Mendes v. Kostmayer, 226 La. 730, 77 So.2d 21; Juneau v. Juneau, 227 La. 921, 80 So.2d 864; Benedict, Administrator v. Stulb, 230 La. 995, 89 So.2d 768; and other cases. ”


author: SWIFT, Judge.

text:
    STELLY CONSTRUCTION, INC., Plaintiff-Appellee, v. Daniel RICHARD, Defendant-Appellant.
    No. 7531.
    Court of Appeal of Louisiana, Third Circuit.
    June 30, 1981.

      Donald J. Richard, Opelousas, for defendant-appellant.
    John H. Weinstein, Opelousas, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and SWIFT, JJ.
   SWIFT, Judge.

Daniel Richard, defendant-appellant, had an agricultural lease on the south half of Section 23, T-6-S, R-5-E, in St. Landry Parish. He orally contracted with Stelly Construction, Inc. (Stelly), plaintiff-appel-lee, to clear the land, agreeing to pay the latter $155.00 per acre, plus an extra $10.00 per acre on part of the acreage which was more difficult to clear due to logging operations conducted thereon by Louisiana Southern Forest Products, Inc. (Louisiana Southern) to remove the merchantable timber.

While engaged in their respective operations, Louisiana Southern cut timber from and Stelly cleared approximately 12 acres of the land immediately north of Richard’s tract which was owned by Planters Security Company, Inc. (Planters).

Planters sued Stelly, Louisiana Southern and Mr. Richard for damages for the trespass and the value of the timber taken. Stelly filed a separate action against Richard for the cost of clearing Planters’ acreage. The two suits were consolidated. However, during the trial Planters settled its case with the three defendants. Stelly’s suit against Richard proceeded to judgment and the court awarded the plaintiff $990.00 (one-half of the contract price) for clearing the 12 acres of the Planters tract. Richard appealed this judgment. We reverse.

Both Stelly’s president and its job foreman contended that Richard directed their bulldozer operators to proceed as they did. Richard denied this and the Stelly witnesses finally admitted that defendant had pointed out to them stakes at the northeast and northwest corners of the tract of land which he had under lease and told them to stay south of these markers. Stelly’s main justification for its actions was that the stakes were one mile apart and the visibility range in the woods was only 20 feet. For this reason Richard was told that he had to have the north line of his property established by the surveyor in order for them to stay thereon and he agreed. However, this was not accomplished until after the trespass had occurred. The plaintiff contends that, because of Richard’s failure to clearly mark the northern boundary before Stelly commenced its operations, he is obliged under the contract between the parties to pay for the acreage cleared on the Planters tract.

Thus, Stelly is seeking to expand this contract to include the work performed on Planters’ property despite the fact that Richard intended and so informed Stelly that only his leased acreage was to be cleared. The latter’s failure to take its own proper precautions to see that the boundary between the two tracts was not transgressed cannot impose upon Richard any obligation to pay Stelly for clearing Planters’ land. The contract did not provide for payment for clearing any such additional land and Stelly knew or should have known that it was clearing land outside of the area covered by the agreement.

The trial judge based his award on the theory of unjust enrichment, citing Sylvester v. Dupre, 333 So.2d 447 (La.App. 3 Cir. 1976), writ denied 337 So.2d 224 (La.1976). In Sylvester this court said:

“Our law recognizes the general theory of a quasi contractual obligation, or an actio de in rem verso, founded on unjust enrichment. There are five prerequisites to a successful suit by actio de in rem verso: (1) There must be an enrichment; (2) there must be an impoverishment; (3) there must be a connection between the enrichment and resulting impoverishment; (4) there must be an absence of ‘justification’ of ‘cause’ for the enrichment and impoverishment; and finally (5) the action will only be allowed when there is no other remedy at law, i. e., the action is subsidiary or corrective in nature.”

It appears that Mr. Richard was enriched by the sale of the timber taken from Planters’ 12 acres and Stelly suffered an impoverishment by reason of the expenses it incurred in clearing such property. However, there was no causal connection between the two. Richard was not enriched in any way by Stelly’s clearing part of the other tract. It was not Stelly but Louisiana Southern that cut and paid Richard for Planters’ merchantable timber. The money Richard received for the timber cut from Planters’ land was not a direct consequence and had no connection with Stelly’s work since it was Louisiana Southern that actually cut and paid him for this merchantable timber. Thus, it is clear that at least one of the five prerequisites to a successful suit based on unjust enrichment was not satisfied. Edmonston v. A-Second Mortgage Co. of Slidell, Inc., 289 So.2d 116 (La.1974).

For the foregoing reasons, the judgment of the district court is reversed and plaintiff’s suit is hereby dismissed. All costs of court, including this appeal, are assessed against the plaintiff-appellee.

REVERSED AND RENDERED.

      . Actually, these stakes were set some twenty feet south of what was later established to be the true north boundary of the Richard tract, because the surveyor was not entirely certain at the time the stakes were set as to the exact location of said line. However, this is of no significance, because there would have been no trespass had Stelly stayed south of the line between the two stakes.


author: LOTTINGER, Judge.

text:
    Sherman A. BERNARD, as Rehabilitator of First Republic Life Insurance Company v. PIKE BURDEN, INC., et al. Al J. RANSOME and Marie D. Ransome v. SPECIAL DEVELOPMENT, INC., et al.
    Nos. 14185, 14186.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 26, 1981.
    Rehearing Denied Aug. 25, 1981.
    James D. Caldwell, Baton Rouge, for plaintiffs-appellants Al J. Ransome and Marie D. Ransome.
    J. Arthur Smith, III, Baton Rouge, for defendant-appellee Special Development, Inc.
    Ralph Brewer, Baton Rouge, for defendants-appellees John C. Anderson, Lawrence R. Anderson, Jack Roberts, Jr., The Law Firm of Anderson and Roberts, and The Law Firm of Anderson, Anderson & Steffes.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   ON MOTION TO DISMISS APPEAL AND TO DISSOLVE STAY ORDER, AND ALTERNATIVELY FOR BOND

LOTTINGER, Judge.

Special Development, Inc., plaintiff-ap-pellee in number 14185 and defendant-ap-pellee in number 14186 has filed this motion to dismiss the appeal, and to dissolve the stay order and alternatively for a bond in this matter.

Appellee contends that the suspensive appeal bond was not timely filed, and thus the suspensive appeal should be dismissed. There is no argument that the motion and order for appeal was timely. Appellant in opposition to the motion has informed this court that a check in the amount of the bond was filed with the clerk of the trial court at the same time as the motion and order of appeal was filed, but through inadvertence and error, the amount of the check was incorrectly posted in the clerk of court’s office. The clerk of the trial court has informed this court by a supplement to the record that a check representing the amount of the security for the suspensive appeal was properly filed in his office on September 22, 1980, which was timely.

Therefore, inasmuch as security for the suspensive appeal was timely filed, the motion to dismiss the appeal, dissolve the stay order, and alternatively for bond is denied at mover-appellee’s costs.

MOTION DENIED.


author: COLE, Judge.

text:
    Sherman A. BERNARD, As Rehabilitator of First Republic Life Insurance Company v. PIKE BURDEN, INC., et al. Al J. RANSOME and Marie D. Ransome v. SPECIAL DEVELOPMENT, INC., et al.
    Nos. 14185, 14186.
    Court of Appeal of Louisiana, First Circuit.
    June 29, 1981.
    Rehearing Denied Aug. 25, 1981.
    David Donn Moss, Baton Rouge, for plaintiff-appellee Sherman A. Bernard as Rehabilitator of First Republic Life Insurance Co.
    J. Arthur Smith, III, Baton Rouge, for plaintiff-appellee Special Development, Inc. (assignee).
    James D. Caldwell, Baton Rouge, for defendants-appellees Unemployment Compensation Control Sys. and Pike Burden, Inc. and for defendant-appellant Al J. Ransome.
    Ralph Brewer, Baton Rouge, for defendants-appellees John C. Anderson, Lawrence R. Anderson, and Jack Roberts.
    Before ELLIS, COLE and WATKINS, JJ.
   COLE, Judge.

Sherman Bernard, as rehabilitator for First Republic Life Insurance Company, was holder and owner of a $58,404.16 promissory note made by Al J. Ransome and Pike Burden, Inc., endorsed by attorneys John C. Anderson, Lawrence R. Anderson, Jr. and Jack Roberts, Jr. Bernard filed suit on the note, naming the two makers and three endorsers defendants. He sought recognition of a collateral mortgage note and a collateral mortgage on Ransome’s home, as well as recognition of the assignment of Pike Burden’s accounts receivable.

The trial court granted judgment on the note on February 26, 1980, in favor of Bernard and against the two makers, Ransome and Pike Burden. The court recognized Bernard’s rights to the accounts receivable but refused to recognize the mortgage on Ransome’s home because Mrs. Ransome had not signed the collateral mortgage note nor the collateral mortgage. Therefore the mortgage was invalid under La.Civil Code art. 2334. The three endorsers were dismissed. The day judgment was rendered an act of assignment was passed whereby Bernard assigned his interest in the judgment to Special Development, Inc., a corporation admittedly owned solely by the three attorney-endorsers. On March 26, 1980, a motion to substitute Special Development as party plaintiff was filed and granted.

Special Development filed a motion to examine the judgment debtor (Ransome). Ransome filed the peremptory exception urging the objection of no right of action, arguing there had been a purchase of a litigious right as prohibited by La.Civ.Code art. 2447. Ransome further argued the violation of this article made the assignment and substitution invalid, therefore Special Development had no right to examine the judgment debtor. The court overruled the exception and ordered the examination to proceed.

Special Development then obtained a writ of fieri facias and had the Ransome home seized. The Ransomes filed a separate suit against Special Development seeking an injunction of the sale and a restoration of the property. A temporary restraining order was issued and the attorneys for each side filed a joint motion to have the two cases consolidated. The Ransomes argued they were entitled to an injunction for three reasons. One, Ransome had been fraudulently induced to sign the promissory note. Two, there had been a remission or conventional discharge of the debt in favor of the endorsers without a reservation of rights against the makers, therefore the makers were released from the obligation. Three, there had been a purchase of a litigious right as prohibited by La.Civ.Code art. 2447.

The defendants filed a motion for judgment on the pleadings, as authorized by La.Code Civ.P. art. 965. The trial court granted judgment on the pleadings in favor of defendant Special Development and against the plaintiffs, Al and Marie Ran-some. The Ransomes have appealed.

The issues presented on appeal are whether or not the court erred in overruling the objection of no right of action to the judgment debtor rule and whether or not the court erred in granting the judgment on the pleadings.

Concerning the no right of action issue, when the peremptory exception is raised at the trial level it may be pleaded at any stage of the proceeding prior to submission of the case for a decision. La.Code Civ.P. art. 928. When the exception is raised after the case has been submitted and decided the exception is not timely. Rosenthal v. Caballero, 309 So.2d 797 (La. App. 4th Cir. 1975). The exception may even be raised for the first time in the appellate court if it is pleaded prior to a submission of the case for a decision by that court. La.Code Civ.P. art. 2163. At either level, the crucial factor is that the exception be filed at some point prior to submission of the case. This is because the very purpose of the peremptory exception is to pretermit or to abort the trial (or appeal) on the merits by raising some procedural bar. In addition to the exception not being timely, we find it is not appropriate to file the exception in an attempt to stop a judgment debtor rule, which is simply a procedural step in the execution of a definitive judgment. (The judgment had indeed become definitive in this case, the delays for appeal having run.) The Ransomes’ proper remedy to delay (or prevent) the execution of the judgment would have been to take a suspensive appeal from the judgment in the suit on the note.

In considering the propriety of the judgment on the pleadings we look to La.Code Civ.P. art. 965 which reads as follows:

“Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover’s pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party’s pleadings shall be considered true.”

The comments to the article note the device is available to both plaintiffs and defendants. In considering the matter we are to consider as true all allegations in Special Development’s (the movers) pleadings not denied by the plaintiffs or by the effect of law, as well as all the allegations in the Ransomes’ (the adverse parties) pleadings.

The Ransomes argue they were induced by fraud and misrepresentation to sign the promissory note, therefore they should be allowed an injunction against the execution of the judgment on the note. They allege that since their petition contains allegations of fraud, these allegations must be considered as true and therefore judgment on the pleadings was inappropriate. We agree and therefore reverse and remand the case for trial.

We note plaintiff’s second supplemental and amending petition, paragraph 41, reads in pertinent part as follows:

“Petitioners further show that based on the above and foregoing facts that Al J. Ransome was induced by the fraud and misrepresentation of material facts by John C. Anderson and Lawrence R. Anderson, Jr., individually and in their capacity as members of the law firm of Anderson & Roberts and as officers, directors, and shareholders of Special Development, Inc. to execute the promissory note referred to hereinabove in Paragraph 14.”

Paragraph 16 of the original petition states:

“As part of said purported compromise and upon the insistence of John C. Anderson and Lawrence R. Anderson, Jr., a promissory note in the amount of $58,-404.16 payable to the order of “ourselves” was signed by Pike Burden, Inc., through Al J. Ransome, and Al J. Ransome, individually, and endorsed by John C. Anderson, Lawrence R. Anderson, Jr., and Jack Roberts, Jr., said attorneys representing to Al J. Ransome that he would incur no liability on said note and because of their error they would pay said indebtedness.”

The allegation of fraud is pled with sufficient particularity to satisfy the requirements of La.Code Civ.P. art. 856. Under the directive of La.Code Civ.P. art. 965 we must accept these allegations as true. Taken as true, these allegations certainly give rise to a valid reason for enjoining the execution of the judgment obtained by Sherman Bernard and assigned to Special Development. Therefore we conclude the judgment on the pleadings was inappropriate and the case should be remanded for trial.

For these reasons the judgment of the trial court is reversed and the case is remanded for trial. Appellee is to pay all costs of this appeal.

REVERSED AND REMANDED.

Rehearing denied: COLE, J., dissents from the denial of rehearing.

      . John C. Anderson, Lawrence R. Anderson, Jr. and Jack Roberts, Jr. had represented Al J. Ransome and Pike Burden, Inc. in previous bankruptcy proceedings.

      . In written reasons for judgment, written ten days before judgment was signed, the court held the makers and endorsers solidarity liable. Although the record does not reflect any motion, the brief filed by the three endorsers states Bernard dismissed them before judgment was rendered.

      . Article 2334, effective at the time the mortgage was executed, prohibited the husband from alienating immovable property which stood in the name of both spouses. This article was repealed by Act 1979, No. 709, effective January 1, 1980. A similar prohibition is stated in article 2347.

      .This appeal deals with two (consolidated) cases, the first in which Ransome is a defendant, the second in which he is a plaintiff. For purposes of simplicity, when we refer to “plaintiff’ we are speaking of the plaintiff in the injunction suit (Ransome) and by “defendant” we mean Special Development.

      . Judgment was rendered February 26, 1980, the judgment debtor rule was filed June 24, 1980 and the exception was filed July 11, 1980.

      . Article 856 reads in part as follows:
      “In pleading fraud or mistake the circumstances constituting fraud or mistake shall be alleged with particularity.... ”

      . Because we find the allegations of fraud make the judgment on the pleadings inappropriate, we need not consider the allegations concerning the discharge of the makers and the sale of the litigious right.


author: MARVIN, Judge.

text:
    Phyllis McKnight CATA, Plaintiff-Respondent, v. William Arthur McKNIGHT, Defendant-Relator.
    No. 14584.
    Court of Appeal of Louisiana, Second Circuit.
    April 14, 1981.
    Kostelka, Swearingen & Street by C. Daniel Street, Monroe, for defendant-relator.
    Bruscato, Loomis & Deal by Anthony J. Bruseato, Monroe, for plaintiff-respondent.
    Before PRICE, HALL and MARVIN, JJ.
   MARVIN, Judge.

We have been ordered to render a decision on the merits of this writ application concerning the correctness of the trial court’s ruling under the Uniform Child Custody Act (LRS 13:1700 et seq.). We had earlier denied writs to the trial court’s decline of jurisdiction under § 1706. The trial court determined that Louisiana was an inconvenient forum and refused jurisdiction of the husband’s challenge to an out of state custody judgment granted the wife. Since the record contains no evidence with regard to the merits of which parent should have custody of the child, we must assume the Supreme Court’s direction relates to our discussing the jurisdictional merits of the case and whether or not the trial court abused its discretion in declining to exercise that jurisdiction.

The applicant-husband moved to Louisiana from Oklahoma with his two children in September 1980. The husband had legal custody of the two children under an Oklahoma judgment, but the wife had filed a petition to modify that custody in the Oklahoma court before the husband left for Louisiana and the husband was restrained from removing one of the children from Oklahoma. This restraint issued before applicant left Oklahoma.

In December 1980 the wife was awarded permanent custody of the two children by the Oklahoma court. She then brought an action in Louisiana to enforce the Oklahoma decree under the UCCJ law. The Louisiana district court found the Oklahoma decree to be valid and refused applicant’s protestations to the contrary and his attempt to have the court exercise jurisdiction under UCCJ law to change custody to him.

It is clear that the Louisiana district court has jurisdiction under LRS 13:1702 A(2) because that section states that the court has jurisdiction where

“(2) It is in the best interest of the child that a court of this state assume jurisdiction because (i) the child and his parents, or the child and at least one contestant, have a significant connection with this state, and (ii) there is available in this state substantial evidence concerning the child’s present or future care, protection, training, and personal relationships; or

Inasmuch as the children are now living in Louisiana with their father, there is a “significant connection” with this state. LRS 13:1708, however, authorizes a trial court to decline to exercise its jurisdiction under certain circumstances. We emphasize some portions of this section.

“§ 1706. Inconvenient forum
“A. A court which has jurisdiction under this Act to make an initial or modification decree may decline to exercise its jurisdiction any time before making a decree if it finds that it is an inconvenient forum to make a custody determination under the circumstances of the case and that a court of another state is a more appropriate forum.
“B. A finding of inconvenient forum may be made upon the court’s own motion or upon motion of a party or a curator ad hoc or other representative of the child.
“C. In determining if it is an inconvenient forum, the court shall consider if it is in the interest of the child that another state assume jurisdiction. For this purpose it may take into account the following factors, among others:
“(1) If another state is or recently was the child’s home state;
“(2) If another state has a closer connection with the child and his family or with the child and one or more of the contestants;
“(3) If substantial evidence concerning the child’s present or future care, protection, training, and personal relationships is more readily available in another state;
“(4) If the parties have agreed on another forum which is no less appropriate; and
“(5) If the exercise of jurisdiction by a court of this state would contravene any of the purposes stated in Section 1700.
“D. Before determining whether to decline or retain jurisdiction the court may communicate with a court of another state and exchange information pertinent, to the assumption of jurisdiction by either court with a view to assuring that jurisdiction will be exercised by the more appropriate court and that a forum will be available to the parties.
“E. If the court finds that it is an [inconvenient] forum and that a court of another state is a more appropriate forum, it may dismiss the proceedings, or it may stay the proceedings upon condition that a custody proceeding be promptly commenced in another named state or upon any other conditions which may be just and proper, including the condition that a moving party stipulate his consent and submission to the jurisdiction of the other forum.
“F. The court may decline to exercise its jurisdiction under this Act if a custody determination is incidental to an action for divorce or another proceeding while retaining jurisdiction over the divorce or other proceeding.
“G. If it appears to the court that it is clearly an inappropriate forum it may require the party who commenced the proceedings to pay, in addition to the costs of the proceedings in this state, necessary travel and other expenses, including attorneys’ fees, incurred by other parties or their witnesses. Payment is to be made to the clerk of the court for remittance to the proper party.
“H. Upon dismissal or stay of proceedings under this Section the court shall inform the court found to be the more appropriate forum of this fact, or if the court which would have jurisdiction in the other state is not certainly known, shall transmit the information to the court administrator or other appropriate official for forwarding to the appropriate court.
“I. Any communication received from another state informing this state of a finding of inconvenient forum because a court of this state is the more appropriate forum shall be filed in the custody registry of the appropriate court. Upon assuming jurisdiction the court of this state shall inform the original court of this fact.”

Invoking § 1706 E, the trial court ordered a stay of the proceeding in Louisiana and allowed applicant 15 days to file proceedings in the appropriate court in Ottawa County, Oklahoma. The issue before us concerns whether or not this declination constituted an abuse of discretion by the trial court.

Obviously, the existence of jurisdictional power does not require exercise of that power under the UCCJ law. See and compare Hadley v. Hadley, 394 So.2d 769 (La. App. 4th Cir. 1981); Revere v. Revere, 389 So.2d 1277 (La. 1980). Otherwise, § 1706 would be meaningless.

In this case the Oklahoma court was very familiar with the parties and had continued to exercise jurisdiction throughout the history of the case. The factors convinced the Louisiana court that Oklahoma was the [more] appropriate forum for further custody proceedings. Considering the factors listed in § 1706 C, we find the trial court did not abuse its discretion. First of all, Oklahoma was recently the home state of the respondent, the applicant, and the children. By the same token the family has a close connection with Oklahoma by virtue of their past residence. The Oklahoma court was exercising its jurisdiction when the husband brought the children to Louisiana. The trial court’s ruling is not contrary to the express policy of LRS 13:1700 which calls for facilitation of the enforcement of custody decrees of other states and avoidance of relitigation of custody decisions of other states.

The judgment below is affirmed at the cost of the applicant.

      . The Supreme Court order reads as follows:
      “March 20, 1981
      “Granted. Case remanded to Court of Appeal for hearing and decision on merits.”


author: PER CURIAM.

text:
    INTERNATIONAL INSURANCE COMPANY, Plaintiff-Appellant, v. Charles D. MASUR and Reliance Insurance Company, Defendants-Appellees.
    No. 14647.
    Court of Appeal of Louisiana, Second Circuit.
    May 11, 1981.

      Davenport, Files, Kelly & Marsh by William G. Kelly, Jr., Monroe, for plaintiff-appellant.
    Theus, Grishman, Davis & Leigh by J. Michael Hart, Monroe, for defendants-ap-pellees.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   ON MOTION TO DISMISS APPEAL

PER CURIAM.

An uninsured motorist carrier sought a declaratory judgment fixing uninsured motorist coverage at $25,000 rather than the $750,000 asserted by the insured. From an adverse judgment in the trial court the plaintiff insurance company appealed. Defendant insured seeks to dismiss the appeal on the ground that it is not from a “final” judgment, relying upon the rationale of Lantz v. Campbell, 376 So.2d 631 (La. App.3rd Cir. 1979).

Appellate review of judgments rendered in actions for declaratory relief is provided for in La. C.C.P. Art. 1877. It is clear, therefore, that for appeal purposes the judgment in question is a “final” one. In the Lantz case the motion for declaratory judgment was filed in connection with the tort action itself. The motion to dismiss was granted because of the court’s conclusion that “allowing this appeal would constitute piecemeal litigation.” In other reported cases raising this question, it appears that motions to dismiss appeals were granted hecause the trial judge had elected to try the issues of liability and quantum separately and the appeal was from a ruling on the question of liability only.

This appeal is from a final judgment in a suit for declaratory relief which was not included within or consolidated with a tort action. Allowing the appeal will not foster piecemeal litigation in the trial court. Therefore, the motion to dismiss the appeal is denied.

      . La. C.C.P. Art. 466 now authorizes bifurcated trials in issues of liability and damages, and provides that a judgment rendered on the issue of liability only shall be final and appealable.

      . Although the defendant-mover avers that he instituted a tort action subsequent to the filing of the suit for declaratory relief, we consider that immaterial to the disposition of this motion to dismiss the appeal.


author: CULPEPPER, Judge.

text:
    Walter J. BATISTE, Sr., et al., Plaintiffs and Appellants, v. IBERIA PARISH SCHOOL BOARD et al., Defendants and Appellees.
    No. 8149.
    Court of Appeal of Louisiana, Third Circuit.
    May 27, 1981.
    Writ Denied Sept. 18, 1981.

      Mouton, Roy, Carmouche, Bivens & Kraft, Ralph E. Kraft, Lafayette, for plaintiff and appellant.
    John W. Porterfield, Jeanerette, for defendant and appellee-appellant.
    Voorhies & Labbe, D. Mark Bienvenu, Lafayette, White & Pitre, Marion O. White, Opelousas, Knowles M. Tucker and J. Phil Haney, New Iberia, for defendants and ap-pellees.
    Before CULPEPPER, DOMENGEAUX and LABORDE, JJ.
   CULPEPPER, Judge.

Walter J. Batiste, Sr., individually and as administrator of the estate of Walter Batiste, Jr., seeks damages for personal injuries sustained by his minor son while a student at Canal Street Elementary School in Jeanerette, Louisiana. Plaintiff contends that during noon recess at school, the young Batiste, then 11 years old, was stabbed in the eye with a ballpoint pen by a fellow student, resulting in the loss of eyesight in the right eye. Named defendants are the Iberia Parish School Board, Horace Mann Insurance Company, the School Board’s insurer, Irvin Moceri, the school’s principal, and Audrey Minor and Harold Hayes, teachers at the school. Also named defendants are Clifford Marks and Linda Coleman, as administrators of the estate of Warner Coleman, Henry Jackson, the father of Henry Jackson, Jr., and Peter Jean Louis and Jeanette Jean Louis, the parents of Peter Jean Louis. Plaintiff contends Warner Coleman, Henry Jackson, Jr. and Peter Jean Louis held his son and beat him and stabbed him in the eye.

By supplemental and amending petition, Eleanor Jackson Batiste, the mother of Walter Batiste, Jr., was substituted as the proper party plaintiff following a judgment of absolute divorce from Walter Batiste, Sr. wherein she obtained custody of the minor.

During the course of the trial, the district court granted a motion for directed verdict in favor of Harold Hayes and dismissed him from the lawsuit. Judgment was rendered in favor of plaintiff and against Clifford Marks, Linda Coleman, Henry Jackson, Calvin Louis and Jeanette Louis. Plaintiff’s claim against the Iberia Parish School Board, Horace Mann Insurance Company, Irvin Moceri and Audrey Minor were denied. Plaintiff appealed. Clifford Marks, Linda Coleman, Calvin Louis and Jeanette Louis also have appealed.

The issues presented are (1) whether the Iberia Parish School Board and/or its employees, Irvin Moceri and Audrey Minor, are liable to plaintiff, (2) whether Clifford Marks, Linda Coleman, Henry Jackson, Calvin Louis and Jeanette Louis are liable, (3) whether the trial judge improperly considered the defendants’ inability to pay in assessing damages without supporting evidence, and (4) whether the damages awarded by the trial judge were excessive or inadequate?

Several versions of the incident were offered by the participants. According to Walter’s testimony, he had just finished lunch and was taking a walk in the playground area when Warner Coleman, a fellow student, came up and struck him on the arm. Two other students, Henry Jackson and Peter Jean Louis, then grabbed Walter by the arm and held him for several minutes while Warner Coleman struck him several times in the chest, stomach and forehead. During this time, Walter attempted unsuccessfully to attract the attention of one of the teachers who was monitoring the playground area that day. He eventually managed to break free from the two boys who were holding him, and he struck Warner. Warner then stooped down and took a Bic ballpoint pen from his sock and stabbed Walter twice in the right eye.

Henry Jackson and Peter Louis testified that at noon recess all four boys were involved in a game in which one would hit the other on the arm or shoulder. This game soon turned into a scuffle between Walter and Warner. Walter was thrown to the ground by Warner and when he got up his eye was bleeding. Both denied ever holding or hitting Walter.

Warner Coleman also testified that the boys were playing a hitting game. He admits hitting Walter while he was being held by Henry and Peter but denies stabbing Walter in the eye. He states that this game lasted for five or ten minutes.

Mr. Irvin Moceri, principal at Canal Street Elementary School, testified that there were approximately 450 students enrolled at the school in November of 1977. On this particular day, grades 4 and 5 and some third grade classes were on their luncheon recess. Mr. Moceri had assigned two teachers, Ms. Audrey Minor and Ms. Glenda Vanduezee, to monitor the noon recess period for that day. He estimated that there were at least 100 students actually out on the playground when the accident occurred, thus the pupil-teacher ratio was roughly 50 to 1. The playground yard comprised an area of about 200 by 250 feet.

Teachers assigned to supervise the noon recess period were instructed by Mr. Moceri to stay apart and to make continuous rounds of the school building. The halls and restrooms inside the building were also periodically checked. Mr. Moceri stated that it took anywhere from three to five minutes, depending on the circumstances, to complete a round of the assigned area.

He further testified that prior to November 2, 1977, he had observed some of the children engaged in a similar hitting game and that he had asked the on-duty teacher to discourage this type of activity.

Ms. Audrey Minor stated that on this particular day she and Ms. Vanduezee were on opposite sides of the fifth grade building as they were making their rounds. She stated that she had previously seen a similar game between some of the children and told them not to play it. Her account of the incident is as follows:

“Q Have you had occasion to see this type of game or type of activity before November 2, 1977?
A Yes, I seen them playing tag as such.
Q Well, have you had occasion to tell the students that they should not play this type of game?
A If I see where they’re getting too rough, yeah.
Q Did you have an occasion on November the 2nd, ’77 to tell the students not to play this particular game on that day?
A No, because I didn’t notice that they were playing such game, they were such a distance away from me.
Q What distance were they from you, ma’am?
A Say, about 75 or 80 feet away from me.
Q And is it your testimony that on one of your prior rounds or revolutions that you saw these particular youths playing this particular game?
A I wouldn’t say I saw those particular youths. I saw a crowd of children.
Q Did you know the students with such familiarity that you could identify those persons from 75 or 80 — Did you say yards or feet?
A Feet
Q —from 75 or 80 feet away on that particular day?
A To know who it was with the crowd around it, no, I couldn’t identify it.
Q Approximately how many children did you see when you first came around the corner and made your observation or told the kids to stop it?
A Well, I didn’t count them or anything, you know, it was just a crowd, a gang.
* * * * * *
Q What do you recall having seen?
A Well, as I was making my routine check around the building, just as I got around the building, I noticed a crowd of children together and I hollered for them to stop and I ran over there.
Q Did you go to the point where the incident was occurring?
A Well, by that time the kids started walking toward me.
Q So, you did not actually reach the point where the altercation was ongoing?
A Not the distance where they were.
Q Do you know Walter Batiste?
A Yes.
Q Did you know him at that time?
A Not personally.
Q Did you know Walter — Did you observe that Walter had suffered some sort of injury to his right eye?
A Yes.
Q What did you observe?
A I noticed something was wrong with his right eye.”

Ms. Vanduezee confirmed that she was on the opposite side of the building at the time and had not noticed any disturbance on her previous round.

The trial judge found that the supervision provided by the school through its principal and teachers was reasonable and adequate under the circumstances, thus the School Board was not liable to plaintiff. The court further found that plaintiff’s injury was an unforeseeable occurrence.

Plaintiff contends this unfortunate accident could have been prevented with proper supervision by the principal and teachers at Canal Street Elementary School. He argues that two teachers could not adequately oversee the safety of the number of children present on the playground at that time. He further argues that this type of hitting game had been reprobated and since the hitting game lasted from five to ten minutes, at least one of the teachers should have noticed and put an end to this roughhousing.

The duty of a school board with respect to the safety of its students was well expressed in Prier v. Horace Mann Insurance Company, 351 So.2d 265 (La.App.3rd Cir. 1977) wherein the court stated:

“[1-4] Our jurisprudence is settled that a school board is not the insurer of the lives or safety of children. School teachers charged with the duty of superintending children in the school must exercise reasonable supervision over them, commensurate with the age of the children and the attendant circumstances. A greater degree of care must be exercised if the student is required to use or to come in contact with an inherently dangerous object, or to engage in an activity where it is reasonably foreseeable that an accident or injury may occur. The teacher is not liable in damages unless it is shown that he or she, by exercising the degree of supervision required by the circumstances, might have prevented the act which caused the damage, and did not do so. It also is essential to recovery that there be proof of negligence in failing to provide the required supervision and proof of a causal connection between that lack of supervision and the accident.” (Citations omitted)

We agree with the trial court that plaintiff has failed to show any negligence on the part of Ms. Minor, Ms. Vanduezee or Mr. Moceri. There was absolutely no showing that the two teachers were in a'ny way remiss in carrying out their supervisory duties. We are also in accord with the trial court’s finding that the number of teachers used to supervise the noon hour recess was reasonable under the circumstances. Mr. Moceri’s own testimony shows that the safety practices used at Canal Street Elementary School were in accordance with policies established by the Iberia Parish School Board.

Even assuming plaintiff has made out a plausible case of negligence against the School Board, he has failed to show a causal connection between any lack of supervision and the accident. The district court found that the altercation was promptly discovered and that immediate action was taken to prevent it. We agree. While it was admitted that such games were discouraged because they could lead to injury, we do not think Warner Coleman’s vicious conduct was a foreseeable action which could have been prevented even with increased supervision. In Nash v. Rapides Parish School Board, 188 So.2d 508 (La.App.3rd Cir.1966), a case involving somewhat related facts, the court observed:

“No one can predict what the actions of children of 8 or 9 years of age will be while playing on a schoolground. How could any teacher anticipate a situation where one child, while teasing another child, would be struck in the eye with a stick by a third child? Even if such action could have been anticipated, there is no showing of any likelihood whatsoever that such action could have been prevented by a teacher or supervisor even if said teacher or supervisor was standing right there. As is often the case, accidents such as this, involving school children at play, happen so quickly that unless there was direct supervision of every child (which we recognize as being impossible), the accident can be said to be almost impossible to prevent.”’

Accordingly, we affirm that portion of the trial court’s judgment in favor of the defendant School Board and its employees and insurer.

We next turn to the liability of the parents of the three children who were involved in the incident which led to Walter’s injuries. The trial judge found the evidence established that Warner Coleman stabbed Walter in the eye, and that, as a result of this incident, Walter is now functionally blind in the right eye. We agree with this finding. Thus, under LSA-C.C. 2318 Clifford Marks and Linda Coleman are liable for the tortious act of their minor son.

The trial judge found the parents of the Louis boy and of the Jackson boy are also liable. In written reasons the judge states Batiste was restrained by Louis and Jackson while being struck by Coleman during the “hitting” game. The judge’s reasons are not clear as to whether he found Batiste was still being held by Louis and Jackson at the time Coleman stabbed Batiste in the eye. If the trial judge did intend to hold this, he was clearly wrong. There is no evidence that Batiste was still being held by Louis and Jackson when the stabbing occurred. Batiste himself testified, as stated above, that during the “hitting” game he broke loose from Louis and Jackson or that they turned him loose, and that Batiste then struck Coleman and they were fighting with their fists when suddenly Coleman stooped down and took a Bic ballpoint pen from his sock and stabbed Batiste twice in the right eye. Both Louis and Jackson denied ever holding Batiste, but even if they were holding him during the “hitting” game, they gave essentially the same version of the stabbing, i. e., that Batiste and Coleman were fighting and during the fight Batiste was knocked down and when he got up from the ground his eye was bleeding. In Coleman’s testimony he admits hitting Batiste during the “hitting” game, while he was being held by Louis and Jackson, but he denies stabbing Batiste in the eye either while he was being held or after. Thus, there is absolutely no evidence that Batiste was being held by Louis and Jackson at the time Coleman stabbed Batiste in the eye. To the contrary, all of the testimony by the participants, including the victim, is that Batiste was not being held by Louis and Jackson at the time of the stabbing.

In their original brief in this Court, counsel for the parents of Louis and Jackson cite Cheatham v. City of New Orleans, 368 So.2d 146 (La.App.4th Cir.1979) as analogous to the present case. In Cheatham, two off-duty policemen in civilian clothes were walking along Bourbon Street in New Orleans when a shoe-shine boy approached and insisted on shining their shoes. An argument and obscenities ensued and one of the policemen began to manhandle the boy. Cheatham, a bystander, intervened in the boy’s behalf. Reboul, one of the policemen, started fighting with Cheatham. The other policeman, DeNoux, drew a gun and shot Cheatham, causing his death. A jury held both officers liable for the death of Cheat-ham. The Court of Appeal reversed as to Reboul on the basis that he could not have reasonably foreseen that his scuffling with Cheatham would lead to DeNoux’s bizarre act of fatally shooting an unarmed man.

Apparently after the original briefs were filed in our Court, the Supreme Court, pursuant to the granting of writs, reversed and held Reboul negligent, 378 So.2d 369 (La. 1980). The high court reasoned there was at least sufficient evidence in the record to support a conclusion by the jury that Re-boul did the shooting. Furthermore, the court reasoned that even if Reboul did not shoot Cheatham, and the jury so concluded, it was nonetheless within the jury’s province to find, and the court could not say the jury was clearly wrong in this, that Reboul was otherwise negligent and that his negligence was a “proximate cause” of Cheat-ham’s death. The court went on to state that Cheatham was a larger man than either Reboul or DeNoux, that Reboul knew his partner was carrying a gun, and he should have “readily foreseen” that if he did engage in a fight with Cheatham, and the fight did not go as he hoped it would, his partner, DeNoux, would do what was necessary to protect him. The Supreme Court concluded “that when Reboul entered into the fight with Cheatham it was foreseeable, indeed expected, that his partner would intervene on his behalf if it became necessary, and that his partner, having in his possession a gun, might use that gun if he felt it was necessary to protect his partner.”

Applying the method of analysis of the Supreme Court in Cheatham to the present case, we note first that here the trial judge was clearly wrong in finding as a fact, if he did so find, that Louis and Jackson were still holding Batiste at the time Coleman stabbed Batiste. Under the facts as we find them, it was not reasonably foreseeable by Louis and Jackson that their engaging in the “hitting” game and holding Batiste while Coleman struck him on the arm and in the stomach would lead to the injury which followed. As described in the record, there were several boys engaged in the game, hitting each other and holding one boy while another hit him. It was a rough game, but Louis and Jackson had no reason to think that Batiste would be stabbed in the eye or otherwise seriously injured. It was only after Louis and Jackson had released Batiste, or he had broken away from them, that Batiste and Coleman started to fight with their fists and this finally resulted in Coleman pulling a Bic ballpoint pen from his sock and stabbing Batiste in the eye twice. Using the analysis by the Supreme Court in Cheatham, we do not find it was reasonably foreseeable by Louis and Jackson that such an injury would result.

Plaintiffs were awarded $60,000 in general damages plus special damages. In its written reasons for judgment, the court stated:

“While no evidence as to the ability of defendant parents to respond to a judgment was introduced, simple observation of them by the court during trial, indicates a somewhat limited ability. Considering this, and in light of Outlaw v. Bituminous Insurance Company, 357 So.2d 1350 (4th Cir.1978) and Walker v. Champion, 288 So.2d 44 (1974), the court feels that an award of $60,000 in general damages to be appropriate.”

In Outlaw, the appellate court affirmed an award of $150,000 to a nine year old boy for the loss of an eye. In Walker, the Supreme Court reinstated the trial judge’s award of $100,000 to a high school student for loss of one eye.

Plaintiff argues that the trial court erred in considering the defendant’s inability to pay without any supporting evidence introduced as to defendant’s pecuniary condition.

The inability to pay doctrine, a well established rule in our jurisprudence, states that a defendant in a tort action may present evidence during the trial of the case on its merits to show his inability to pay general damages, and that the trial court may consider that evidence in determining the award of such damages. Landry v. Martin, 353 So.2d 449 (La.App.3rd Cir.1977); Tabb v. Norred, 277 So.2d 223 (La.App.3rd Cir.1973); Rollins v. New York Fire & Marine Underwriters, 225 So.2d 663 (La. App.3rd Cir.1969). Inability to pay need not be alleged as an affirmative defense. Washington v. Anglade, 359 So.2d 1330 (La. App.4th Cir.1978); Williams v. Garner, 267 So.2d 56 (La.App.lst Cir.1972). However, any determination of the defendant’s inability to pay must be made on the basis of evidence introduced in the record, rather than on mere observation or judicial notice by the trial judge.

Thus, we must examine the present award of damages to determine whether it represented a clear abuse of the trial judge’s much discretion. LSA-C.C. Article 1934(3). The record reflects that as a result of the injury plaintiff lost both the iris and the lens of his right eye. Dr. Roland Sylvester, an ophthalmologist, testified that Walter presently has no vision in his right eye and that he would not regain full vision even with corrective surgery. Dr. Larry Baker, also an ophthalmologist, was of the opinion that Walter’s prognosis for regaining useful vision of the injured eye was poor. Both testified that persons who have sight in only one eye also lose depth perception.

In Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976), our Supreme Court stated the rules on appellate review of quantum awards as follows:

“We do reemphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making its award. Anderson v. Welding Testing Laboratory, Inc., supra [304 So.2d 351 (La.1974)]; Bitoun v. Landry, supra [302 So.2d 278 (La.1974)]; Fox v. State Farm Mutual Automobile Ins. Co., supra [288 So.2d 42 (La.1973)]: Walker v. Champion, supra [288 So.2d 44 (La.1973)]. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded that court. Bitoun v. Landry, supra; Spiders v. Montgomery Ward & Company, Inc., supra [294 So.2d 803 (La.1974)]”

The trial judge’s erroneous consideration, without evidence, of inability to pay resulted in an award so low as to constitute a clear abuse of discretion. The lowest award which the district court could have reasonably made is $90,000. Accordingly, we will raise the general damages award to $90,000.

For the reasons assigned, the judgment appealed is reversed and set aside insofar as it holds Henry Jackson, Peter Jean Louis and Jeanette Jean Louis liable, and plaintiff’s suit against these defendants is dismissed. The judgment is amended to increase the award for general damages to $90,000. Otherwise, the judgment appealed is affirmed.

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