author: BLANCHE, Justice.

text:
    Diann DEROUEN v. Ruth KOLB and Lafayette General Hospital.
    No. 80-CA-2590.
    Supreme Court of Louisiana.
    April 6, 1981.
    Thomas D. Curtis, J. Minos Simon Ltd., Lafayette, for plaintiff-appellee.
    Marilyn C. Castle, Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Lafayette, R. Gordon Kean, Jr., Charles S. McCowan, Jr., Sanders, Downing, Kean & Cazedessus, Baton Rouge, amicus curiae on behalf of Louisiana State Medical Society.
    Sidney E. Cook, Cook, Yancey, King & Galloway, Shreveport, amicus curiae on behalf of Medical Society for the Parishes of Caddo, Bossier, Webster, Claiborne, Bien-ville, Red River and DeSoto.
    William R. Tete, William M. Nolen, Jones, Tete, Nolen, Hanchey, Swift & Spears, Lake Charles, amicus curiae on behalf of Medical Society for Parishes of Allen, Beauregard, Calcasieu, Cameron and Jefferson Davis.
    Ronald L. Davis, Jr., Edwin K. Theus, Jr., Theus, Grisham, Davis & Leigh, Monroe, amicus curiae for Medical Society for Parishes of Caldwell, E. Carroll, Franklin, Jackson, Lincoln, Madison, Morehouse, Ouachita, Richland, Union and W. Carroll.
    Howard B. Gist, Jr., Gist, Methvin, Hughes & Munsterman, amicus curiae for Medical Societies of Parishes of Catahoula, Concordia, Natchitoches, Rapides and TriParish Medical Society.
    George K. Anding, Jr., Watson, Blanche, Wilson & Posner, amicus curiae for Louisiana Hospital Ass’n.
    Timothy J. McNamara, Onebane, Dono-hoe, Bernard, Torian, Diaz, McNamara & Abell, H. Lee Leonard, Voorhies and Labbe, amicus curiae for Parish Medical Societies for the Parishes of St. Mary, Iberia, Vermilion, Lafayette, Acadia, Evangeline, St. Landry and St. Martin.
   BLANCHE, Justice.

Plaintiff, Diann Derouen, instituted a claim for personal injuries against Ruth Kolb, a registered nurse, and her employer, Lafayette General Hospital, for an injection plaintiff claimed was administered improperly prior to surgery. Both defendants qualify as health care providers within the contemplation of the Medical Malpractice Act, R.S. 40:1299.41 et seq.

Pursuant to this Act, the plaintiff requested the Commissioner of Insurance convene a medical review panel to hear the plaintiff’s claim. Mr. Howell Dennis was selected as the attorney-chairman of the panel. The plaintiff selected Dr. Alvin Mayer to serve on the panel. The defendants selected Dr. Robert Martinez to serve on the panel.

Certain depositions were taken and interrogatories were propounded to collect evidence for submission to the panel. The two selected medical panelists were requested to proceed to select the third physician member of the panel in accordance with the provisions of the Act.

Before a third panelist was selected the plaintiff filed suit in the Fifteenth Judicial District Court based upon the same claim which was being considered by the medical review panel. According to the plaintiff, she pursued this course because during discovery, she claims certain facts were developed that indicated the physician members of the panel had a pecuniary interest with reference to the defendant Lafayette General Hospital and, thus, were potentially biased, such that her constitutional right of due process was being violated.

Defendants responded to this suit by filing a declinatory exception of lis pendens, and a dilatory exception of prematurity, which were based upon the fact that plaintiff’s claim had not been reviewed by a medical review panel as required by the Medical Malpractice Act, R.S. 40:1299.41 et seq. An alternative motion to strike the ad damnum clause of the plaintiff’s petition was also filed.

Plaintiff responded to these exceptions by urging her action was justified because of the unconstitutionality of the medical review panel provision of the Medical Malpractice Act. Additionally, a stay order was obtained precluding the panel from proceeding pending a decision on the exceptions.

After a hearing, the district court overruled the exceptions of lis pendens and prematurity, concluding that the medical review panel provision of the Act violated this plaintiff’s constitutional right to due process, and permitted the plaintiff to proceed with her suit in the district court without first presenting her claim to the panel and obtaining an opinion from them. The court’s ruling was based on the premise that the physician members of the panel have a conflict of interest regarding the plaintiff’s claim against the defendant hospital and they are, therefore, potentially biased. The court did sustain the motion to strike the ad damnum clause of the plaintiff’s petition.

Defendants obtained a stay of the district court proceeding, and then filed a suspen-sive appeal. The Third Circuit Court of Appeal determined the proper appeal was to this Court pursuant to La.Const. Art. 5, § 5(D)(1) and transferred the appeal to this Court.

We adhere to our policy set forth in Everett v. Goldman, 359 So.2d 1256 (La.1978), footnote 1, of granting review in a case where, though the judgment is not final, the law has been found unconstitutional and a finding of irreparable harm is determined by us. The Act has been declared unconstitutional by the trial court as it applies to this plaintiff. The defendants will suffer the irreparable harm of not having the plaintiff’s claim first reviewed by the medical review panel if the exceptions are not accepted on appeal and addressed. Thus, we assume jurisdiction.

The present issue to be resolved is whether the physicians on this medical review panel have a conflict of interest with the defendant hospital, such that they will be so biased as to deprive the plaintiff of her constitutional due process rights.

The plaintiff contends that because the panel members, Drs. Mayer and Martinez, are staff members of the defendant hospital, they will be potentially biased toward the defendant. Though they are not employed by the hospital, it is alleged that they have a strong pecuniary interest in maintaining their staff relationships with the hospital for they treat a large number of their patients there, and they must be on the hospital staff to do so.

The trial court agreed with this argument and found this plaintiff’s constitutional due process rights were being violated because of the panel members’ potential bias against her. Furthermore, the trial court analogized this situation with that of judges sitting on the boards of financial institutions, which we have recently disallowed.

We appreciate the concern expressed by the trial court in protecting the plaintiff’s constitutional rights, but we do not deem a declaration of unconstitutionality of the Medical Malpractice Act a necessary remedy-

Previously, this Court has thoroughly analyzed the Medical Malpractice Act as to its impact on a plaintiff’s equal protection and due process rights and found the Act to be constitutionally sound. Everett v. Goldman, 359 So.2d 1256 (La.1978). Following our guidance, several courts of appeal have used Everett in analyzing various attacks on the Act. Travasos v. New Orleans Metairie Hospital, 381 So.2d 877 (La.App., 4th Cir. 1980); Jarvis v. Lafayette General Hospital, 378 So.2d 430 (La.1979), on remand 379 So.2d 1179 (3rd Cir. 1980). The federal courts have likewise adopted this Court’s reasoning in Everett and have concluded that the Act is constitutional. Sloane v. Ortho Pharmaceuticals, Inc., 472 F.Supp. 468 (U.S.D.C., E.D.La.1979).

Again, in the present case, we find the Medical Malpractice Act as applied to this plaintiff does pass constitutional muster.

The finding of the trial judge that all panel members would be “potentially biased” because of their relationships as staff members with the defendant hospital is not supported by the record. The statutory provision dealing with the qualification and selection of the members of the medical review panel permits the selection of any physician engaged in the active practice of medicine in this state who practices in the same community or locality as does the health care provider against whom the claim is made, whether in the teaching profession or otherwise, who holds a license to practice medicine in the State of Louisiana. R.S. 40:1299.47. The evidence as to the availability of physicians in the locality reveals that there were thirty-nine physicians in Lafayette Parish who were not in any manner associated with the defendant hospital. Notwithstanding the availability of these other physicians not connected with the defendant hospital, the plaintiff chose Dr. Mayer, a member of the defendant hospital staff, to sit on the medical review panel.

From our review of the record there is not even a hint of actual bias on the part of any of the panelists. The finding of a potential for bias could only have come from an assumption of bias based on the fact of the defendant hospital’s policy of approving doctors for membership on the hospital staff. The inference of bias from proof of this fact is not compelling but, if it were, then the proper remedy would be to get another panel instead of declaring the entire Act unconstitutional with one sweeping declaration.

Another failure of proof lies in the fact that the plaintiff initiated her suit in the district court before the third panel member was selected by Drs. Mayer and Martinez. Thus, there is no way of knowing whether that physician had a relationship with any of the parties such that any potential for bias exists on his part.

In summary, the plaintiff would have us declare the entire Medical Malpractice Act unconstitutional on an inference which is neither compelled by the evidence nor from any proven facts.

Furthermore, we do not agree with the analogy the trial judge makes between the role of the physician panel members and that of the judiciary. As we found in Everett, the sole duty of the panel is to express its expert opinion(s); no findings are made by the panel as to damages, and the findings of the medical review panel are not binding on the litigants.

Where a judge has the power to decide the facts and law of a case and to render a final adjudication as to the rights of the parties involved, no such power exists for the medical review panel. The panel simply renders an expert opinion, and does not have the power to adjudicate the rights of any party.

The practical application of the Act was pointed out by us in Everett, where we said:

“The act provides, at the expense of a delay in filing the suit in court, a procedure for reviews of the claim. The panel determines from the evidence submitted whether there is a basis for the claim, and it gives its opinion accordingly. If the panel determines the claim is substantial, the claimant is obviously benefited. If the panel determines the claim is groundless, the claimant is informed of what certain medical experts think of the merits of his claim. If he disagrees with their analysis, he may still sue for vindication of his rights in a court of law.” “In all cases which go to trial the judge or jury remain the final arbiter of factual questions concerning liability and quantum.”

We found this situation constitutional in Everett, and we see no reason to change our position now by placing the medical review panel on the same status as a judge or jury as the trial court incorrectly did in her analogy.

We deem it was error for the trial judge to overrule the defendant’s exception of prematurity. The plaintiff should have been compelled to first present her claim to a medical review panel before she filed suit in district court.

Further, we reaffirm our decision in Everett and find the medical review panel is not a judge nor a jury, but merely a body of experts assembled to evaluate the plaintiff’s claim and to provide the courts and the parties with an expert opinion. Absent any evidence to rebut the legislative goals of encouraging the prompt settlement of good claims, the abandonment of poor claims and, most importantly, the fostering of prompt, professional medical services to the people of Louisiana, we see the continued use of the medical review panel as proper.

For these reasons, the judgment of the district court overruling the defendant’s exception of prematurity is reversed. There is further judgment herein maintaining said exception at plaintiff’s costs.

REVERSED.

CALOGERO, J., concurs.

      . R.S. 40:1299.47 provides: The medical review panel consists of one non-voting attorney-chairman, one physician selected by the plaintiff, one physician selected by the defendant, and one physician selected by the two physicians. ■


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Kim John CURRY.
    No. 80-K-2681.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Kim John Curry, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of St. Mary. No. 107150.

Writ granted and consolidated with appeal in 81-KA-0275, State v. Curry.


text:
    STATE of Louisiana ex rel. Maison PICKETT and Frank Preston v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2522.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Maison Pickett and Frank Preston, applying for writs of mandamus, habeas corpus, certiorari and prohibition. Parish of Orleans. No. 240-047.

Denied.


text:
    Jette Ann Stewart NORSWORTHY v. Arval Carmen NORSWORTHY.
    No. 81-C-0369.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In re Jette Ann Stewart Norsworthy, applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. No. 14387. Parish of Caddo.

Granted and consolidated with Dedon v. Dedon, La., 396 So.2d 919.


text:
    STATE of Louisiana v. Wayne G. COUVILLION.
    No. 81-K-0291.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In re Wayne G. Couvillion, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson. No. 79-2289.

Granted. Ruling of trial judge set aside. Case remanded to trial court to enter an order of expungement. See, State v. Boniface, 369 So.2d 115 (La.1979).


text:
    STATE of Louisiana ex rel. Darrell D. CVITANOVICH v. J. D. MIDDLEBROOKS.
    No. 80-KH-2619.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In re Darrell D. Cvitanovich, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 8-79-12.

Denied. Petitioner is eligible for parole. See State v. Ferguson, 393 So.2d 710 (La.1981).


author: LEMMON, J.,

text:
    Elaine STATUM et al. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant, et al.
    No. 81-C-0195.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In re Defendant, The State of Louisiana through the Department of Transportation and Development, applying for certiorari or review, or alternative writ of mandamus or prohibition. Parish of Calcasieu. No. 80-309.

Granted. The order affording jury trial as to the state is stricken.

LEMMON, J.,

dissents. Denial of jury trial against state is denial of equal protection.


text:
    FIRST MUNICIPAL LEASING CORPORATION v. STATE of Louisiana.
    No. 81-C-0554.
    Supreme Court of Louisiana.
    Feb. 27, 1981.
   In re State of Louisiana, applying for writ of certiorari. Parish of East Baton Rouge. No. 239247.

Denied.


text:
    STATE of Louisiana v. Anthony BAUMAN, Eric Mahoney and Bowman Roben.
    No. 81-O-0586.
    Supreme Court of Louisiana.
    Feb. 27, 1981.
   In re State of Louisiana, applying for extension of stay order. Parish of Orleans.

On the showing made, the motion for extension of stay order is denied.


text:
    STATE of Louisiana v. Henry F. DAVIS.
    No. 81-K-0175.
    Supreme Court of Louisiana.
    March 2, 1981.
   In re Henry F. Davis, applying for writs of certiorari, or review. Parish of Orleans. No. 275-339.

Denied; adequate remedy by review in the event of conviction.


text:
    Fannie GODWIN v. EAST BATON ROUGE PARISH SCHOOL BOARD et al.
    No. 81-C-0441.
    Supreme Court of Louisiana.
    March 4, 1981.
   In re East Baton Rouge Parish School Board, et al., applying for clarification of February 20,1981 order of this Court. Parish of East Baton Rouge. No. 242956.

Denied. The matter has been transferred to the Court of Appeal.


text:
    STATE of Louisiana v. John L. MARTIN.
    No. 81-K-0610.
    Supreme Court of Louisiana.
    March 6, 1981.
   In re John L. Martin, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of St. Tammany. No. 82962.

Writ denied.


text:
    STATE of Louisiana v. Terry LANGLEY.
    No. 81-K-0633.
    Supreme Court of Louisiana.
    March 9, 1981.
   In re Terry Langley, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of Jefferson Davis. No. CR-2718-80.

Denied.


text:
    Hillary CARRERE v. Peter CASTANO and Edwin Lombard, Clerk of Criminal District Court.
    No. 81-CC-0618.
    Supreme Court of Louisiana.
    March 9, 1981.
   In re Court of Appeal, Fourth Circuit, applying for certified question. Orleans Parish. 395 So.2d 951.

Certification accepted. R.S. 18:1409(H) is not unconstitutional. There is no conflict with La.Const. Art. V, § 8 A, which provides that the Court of Appeal shall sit in panels “of at least three judges.” The legislature may provide for en banc decision on election cases. Case is remanded for action.


text:
    STATE of Louisiana ex rel. John P. WEIDNER v. STATE of Louisiana.
    No. 81-KH-0662.
    Supreme Court of Louisiana.
    March 10, 1981.
   In re John P. Weidner, applying for remedial writs and bond reduction. Terre-bonne Parish. No. 104950.

Granted. The district court is ordered to hold a hearing on relator’s motion immediately.


text:
    STATE of Louisiana v. Victor MOLENA et al.
    No. 81-K-0667.
    Supreme Court of Louisiana.
    March 10, 1981.
   In re Alberto Beancourt, Carlos Gonzales-Pallaez, Francisco Leyva, and Pedro Satur-nino-Perez, applying for writs of certiorari, prohibition and mandamus. Parish of La-fourche. Nos. 105177 and 105178.

Denied.


text:
    STATE of Louisiana ex rel. Phillip Earl BRIDGES v. STATE of Louisiana.
    No. 81-KH-0511.
    Supreme Court of Louisiana.
    March 12, 1981.
   In re Phillip Earl Bridges, applying for remedial writs. Parish of Terrebonne.

Application transferred to district court for action.


text:
    In re Succession of William E. GRIFFITH.
    No. 81-C-0340.
    Supreme Court of Louisiana.
    March 12, 1981.
   In re Motion of M. Arnaud Pilie, attorney for Karen Griffith, to amend stay order. Parish of Jefferson. No. 231-960.

Not considered. This case has been transferred to the Court of Appeal. Relator must apply to the Court of Appeal for the relief requested.


text:
    STATE of Louisiana v. Suzanne BISSAILLON.
    No. 81-K-0682.
    Supreme Court of Louisiana.
    March 13, 1981.
   In re Suzanne Bissaillon, applying writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 81-477.

The trial court is ordered to conduct a preliminary examination before Tuesday, March 17, 1981 at 4:00 p. m., or to release realtor without bond.


text:
    STATE of Louisiana ex rel. Marco A. THUCOS v. STATE of Louisiana.
    No. 81-KH-0521.
    Supreme Court of Louisiana.
    March 13, 1981.
   In re Marco A. Thucos, applying for remedial writs. Parish of Ouachita. No. 65499.

Denied.


text:
    STATE of Louisiana v. Dwight ALBERT.
    No. 81-K-0635.
    Supreme Court of Louisiana.
    March 13, 1981.
   In re Dwight Albert, applying for writ of habeas corpus, and stay order. Orleans Parish. No. 251-214.

Denied.


text:
    STATE of Louisiana in the Interest of Kenneth BANKS.
    No. 81-K-0712.
    Supreme Court of Louisiana.
    March 17, 1981.
   In re Kenneth Banks, applying for supervisory writs and stay order. East Baton Rouge Parish. Family Court, No. 53295. Court of Appeal, First Circuit. Nos. 14343 and 14450.

Granted. Pending argument in this Court, the trial judge is ordered to fix bail.

MARCUS, J., dissents from bail order.


text:
    STATE of Louisiana ex rel. Alvin F. FITCH v. STATE of Louisiana.
    No. 81-KH-0716.
    Supreme Court of Louisiana.
    March 17, 1981.
   In re Alvin F. Fitch, applying for remedial writ. Parish of Terrebonne. Nos. 103,-159-105,160.

Granted. The trial court is ordered to hold a bond reduction hearing immediately. Remanded.


text:
    STATE of Louisiana v. Victor MOLERO, Sr., et al.
    No. 81-K-0733.
    Supreme Court of Louisiana.
    March 17, 1981.
   In re Bias Castro, Carlos Gonzales, Enrique Marquez, Marcelino Delgado, Jose Gonzales, Carlos Garcia, and Tomas Solares, applying for writs of certiorari, prohibition and mandamus. Parish of Lafourche. Nos. 105177 and 105178.

Denied.


text:
    STATE of Louisiana v. Stephan V. BLANTON.
    No. 81-K-0394.
    Supreme Court of Louisiana.
    March 19, 1981.
   In re Stephan V. Blanton, applying for supervisory writs and stay order. Parish of Jefferson. No. 80-2710.

Granted.


text:
    STATE of Louisiana ex rel. Robert Charles WADDELL v. STATE of Louisiana.
    No. 81-KH-0717.
    Supreme Court of Louisiana.
    March 19, 1981.
   In re Robert Charles Waddell, applying for remedial writs (bond reduction). Parish of Rapides.

Granted. The trial court is ordered to conduct a hearing on the pro se application for bond reduction.


text:
    STATE of Louisiana v. James Earl THOMLEY, Stephen Scott and Allen Gaskin.
    No. 81-K-0762.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Allen Gaskin, applying for writ of certiorari, or review, and stay order. Parish of Bossier. No. 58099.

Denied.


text:
    Hillary CARRERE v. Peter CASTANO, Respondent-Contestee, and Edwin Lombard, Clerk of Criminal District Court.
    No. 81-C-0713.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Hillary Carrere, applying for writ of certiorari, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 395 So.2d 951.

Denied.

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


text:
    In the Matter of the Succession of Ted F. DUNHAM, Sr.
    No. 81-C-0140.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Mrs. Katharine 0. Dunham and Billy J. Alexander, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 438.

Granted.


text:
    David M. FERRELL v. SOUTH CENTRAL BELL TELEPHONE COMPANY.
    No. 81-C-0163.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re David M. Ferrell, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 138.

Granted.


text:
    A. D. FREEMAN v. John T. COOPER.
    No. 81-C0169.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re John T. Cooper, applying for writs of certiorari, or review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 390 So.2d 1355.

Granted.


text:
    Jonathan JACKSON et ux. v. AMERICAN INSURANCE COMPANY et al.
    No. 81-C-0415.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Jonathan Jackson, et ux., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 391 So.2d 1339.

Granted.


text:
    Murlon WEBB v. POLK CHEVROLET, INC.
    No. 81-C-0614.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Murlon Webb, applying for writ of certiorari, mandamus, and/or prohibition, to the Court of 19th Judicial District Court. Parish of East Baton Rouge. No. 14294.

Granted. The judgment of the district court is reversed. Respondent is ordered to answer the interrogatories.


text:
    Robert S. VANDERDOES et al. v. ST. CLAUDE GENERAL HOSPITAL, Frederick A. Pou, M.D., Bruce Iteld, M.D., Richard E. Landry, M.D., All Named Defendants, Charles J. Lilly, Jr.
    No. 81-C-0648.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Robert S. Vanderdoes, applying for writs of certiorari, prohibition, or mandamus, to the Court of Appeal, Fourth Circuit. Parish of Orleans. No. 81-455.

Granted. Remanded to Court of Appeal to rule on merits of relator’s complaint relating to the trial court’s order to appoint a physician in the same class and speciality of practice as Dr. Lilly.


text:
    PAT’S FURNITURE SHOWROOMS, INC. v. The FURNITURE WAREHOUSE OF HOUMA, INC., et al.
    No. 81-C-0420.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Ned L. LeBlanc, Jr. and Dennis P. Fanguy, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 392 So.2d 145.

Not considered. Not timely filed.


text:
    STATE of Louisiana, Through the OFFICE OF the GOVERNOR, Division of Administration and the Facility Planning and Control Department v. L. W. EATON CONSTRUCTION COMPANY, INC., et al.
    No. 81-C-0103.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re State of Louisiana, through the Office of the Governor, Division of Administration and the Facility Planning and Control Department, applying for writs of cer-tiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 392 So.2d 481.

Denied.


text:
    The COUNCIL OF the CITY OF NEW ORLEANS: Joseph Giarusso, Frank Friedler, Jr., Michael Early, Sidney Barthelemy, Broderick Bagert, Phillip Ciaddio, Individually and as Members of the Council of the City of New Orleans, Louisiana Health Services and Indemnity Co., Inc. v. Honorable Ernest N. MORIAL, Mayor of the City of New Orleans, Reynaud J. Rochon, Chief Administrative Officer of the City of New Orleans and Jack A. Parker & Associates, Inc.
    No. 81-C-0170.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Ernest N. .Morial, et al., applying for writs of certiorari or review, to the Court of Appeal, Fourth Circuit. For the Parish of Orleans. 390 So.2d 1361.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Haaymen DOURESSEAU v. STATE of Louisiana.
    No. 81-KH-0240.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Haaymen Douresseau, applying for remedial writs. Parish of St. Landry. No. 32304.

Denied.


text:
    Ernest F. GARRETT v. MARTIN TIMBER COMPANY, INC.
    No. 81-C-0385.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Ernest F. Garrett, applying for cer-tiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Bienville. 391 So.2d 928.

Writ denied.

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


text:
    Wallace JACK v. KANSAS CITY SOUTHERN RAILWAY CO. et al. Curtis ARDOIN et al. v. The KANSAS CITY SOUTHERN RAILWAY CO.
    No. 81-C-0413.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Louisiana & Arkansas Railway Co., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. John the Baptist. 392 So.2d 499.

Denied.

MARCUS, J., would grant the writ.


text:
    FRANKLIN PRINTING COMPANY, INC. v. SCOTT FENCE OF NEW ORLEANS, INC.
    No. 81-C-0428.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Scott Fence of New Orleans, Inc., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 392 So.2d 170.

Denied.


text:
    Leander H. PEREZ, Jr., et al. v. PLAQUEMINES PARISH COMMISSION COUNCIL et al.
    No. 81-C-0429.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Plaquemines Parish Commission Council, et al., applying for certiorari or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaquemines. 391 So.2d 1308.

Denied.


text:
    Ross H. ROBERTSON, Individually and on Behalf of His Minor Daughter, Janice Dianne ROBERTSON v. Samuel TRAVIS et al.
    No. 81-C-0438.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Olevia R. Webb, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Helena. 393 So.2d 304.

Denied.


text:
    Ross H. ROBERTSON, Individually and on Behalf of His Minor Daughter, Janice Dianne ROBERTSON v. Samuel TRAVIS et al.
    No. 81-C-0454.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Ross H. Robertson, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Helena. 393 So.2d 304.

Denied.


text:
    Rhonda WATSON v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES.
    No. 81-C-0543.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Rhonda Watson, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission, State of La., No. 2117. 394 So.2d 1316.

Denied.


text:
    Robert DANIELS et al. v. NATIONAL FIRE INSURANCE CO. OF HARTFORD et al.
    No. 81-C-0563.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Salvador Mulé, Judge. Orleans Parish Family Court, applying for certiora-ri, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 394 So.2d 683.

Denied.

WATSON, J., would grant the writ.


text:
    Charles E. GLEASON et al. v. CITY OF SHREVEPORT.
    No. 81-C-0416.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Charles E. Gleason and David Breedlove, et al., applying for certiorari, or writ of review, to the Court of Appeal, Second Circuit. Parish of Caddo. 393 So.2d 827.

Denied.

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


text:
    STATE of Louisiana ex rel. Kerry WILLIAMS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 80-KH-2759.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Kerry Williams, applying for remedial writs. Parish of Orleans. No. 262 — 481.

Evidentiary hearing ordered on relator’s claim of plea bargain for concurrent sentence.


text:
    STATE of Louisiana ex rel. Vernell RICHARDSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, Israel M. Augustine, Jr., et al., Orleans Parish.
    No. 80-KH-2918.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Vernell Richardson, applying for remedial writs. Parish of Orleans. No. 237-504.

Granted.


text:
    STATE of Louisiana ex rel. Billy Ray BROWN v. STATE of Louisiana.
    No. 80-KH-2964.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Billy Ray Brown, applying for remedial writs. Parish of Orleans. No. 273-727.

Granted and transferred to the district court to act on the application.

MARCUS and WATSON, JJ., would deny the writ.


text:
    STATE of Louisiana ex rel. Freddie Lee WILLIAMS v. CLERK OF COURT, PARISH OF CADDO, FIRST JUDICIAL DISTRICT COURT.
    No. 80-KH-2980.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Freddie Lee Williams, applying for writ of mandamus. Parish of Caddo. No. 97928.

Granted. The district court is ordered to furnish relator transcripts of the Boykin hearing.

MARCUS and WATSON, JJ., would deny the writ.


text:
    STATE of Louisiana v. Wallace J. THOMPSON.
    No. 81-K-0178.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Wallace J. Thompson, applying for writs of certiorari, prohibition, mandamus, and a stay, order. Parish of St. Tammany. No. 77372/3.

Granted. Trial court is ordered to conduct a hearing to determine if officer acted reasonably in seizing materials beyond those described in warrant, reserving the right to all parties to apply for further relief.


text:
    STATE of Louisiana v. Eddie Lee BIAS.
    No. 81-K-0287.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Eddie Lee Bias, applying for writs of certiorari, prohibition and mandamus. Parish of Ouachita. No. M41550.

Granted.


text:
    STATE of Louisiana v. Lavinia D. JOHNSON.
    No. 81-K-0367.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Lavinia D. Johnson, applying for writ of review. Parish of Morehouse. No. 37405.

Writ granted.


text:
    STATE of Louisiana v. Rufus MORGAN.
    No. 81-K-0442.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Rufus Morgan, applying for writs of certiorari, prohibition, mandamus and review. Parish of Natchitoches. Nos. 61655 and 61656.

Granted. The ruling of the court below on the Motion to Quash is reversed and the case is remanded for the court to hear the motion and rule on the merits.


text:
    STATE of Louisiana ex rel. Willie VALENTINE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2055.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Willie Valentine, applying for writ of mandamus. Parish of Orleans. No. 213— 432, Section “D”.

Granted. The district judge is ordered to act on this matter by April 2, 1981 and report the action taken to this Court by April 2, 1981.


text:
    STATE of Louisiana ex rel. Melvin Roger STOVALL v. CLERK OF CRIMINAL DISTRICT COURT, SECTION “D”, PARISH OF ORLEANS, State of Louisiana.
    No. 81-KH-0462.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Melvin Roger Stovall, applying for writ of mandamus. Parish of Orleans. No. 244-100.

Writ granted. Relator is to be furnished a copy of his Boykin transcript; otherwise, writ is denied.


text:
    STATE of Louisiana ex rel. Aubrey BOTTS v. STATE of Louisiana.
    No. 81-KH-0474.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Aubrey Botts, applying for writs of certiorari, prohibition and mandamus. Parish of Avoyelles. No. 40-171.

Granted. Boykin transcript ordered furnished.


text:
    STATE of Louisiana v. Troy Wayne DENT.
    No. 81-K-0674.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Troy Wayne Dent, applying for writs of certiorari, review, and a stay order. Parish of Jefferson. No. 81-104.

Granted. Trial judge is ordered to rule on transfer proceeding held in juvenile court and heard prior to first degree murder indictment. Stay of arraignment in district court is continued in force until 72 hours after juvenile judge rules in transfer proceeding.


text:
    STATE of Louisiana v. Noel D. YAMBO, Richard Torres and William D. Yambo.
    No. 81-K-0738.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Noel D. Yambo, Richard Torres and William D. Yambo, applying for writ of habeas corpus. Parish of Jefferson. No. 81-374.

Granted. A hearing is ordered on rela-tors’ habeas application at which time the preliminary examination will be reopened. Both state and defense shall be permitted to call additional witnesses and a new determination of probable cause made.


text:
    STATE of Louisiana v. Cedric LACOUR, Rene Perkins and Kip Franklin.
    No. 81-K-0750.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for supervisory writs and stay order. Parish of Orleans. Nos. MI 108-891, 108-892 and 108-893.

Granted.


text:
    STATE of Louisiana v. Glen A. TKATCH.
    No. 81-K-0761.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re State of Louisiana, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80-2357.

Granted. Ruling of trial judge reversed. Confession ordered admissible in evidence, reserving defendant’s right of review on appeal in the event of conviction.


text:
    STATE of Louisiana v. Jack G. COPELAND.
    No. 81-K-0611.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Jack G. Copeland, applying for writs of certiorari, prohibition, and mandamus. Parish of Caddo. No. 111208.

Motion to dismiss by relator granted.


text:
    Elaine STATUM et al. v. STATE of Louisiana, Through the DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT, Defendant et al.
    No. 81-C-0195.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Elaine Statum, applying for reconsideration of granted writ of February 20, 1981. Parish of Calcasieu. No. 80-309.

Application denied.

LEMMON, J., would grant rehearing.


text:
    STATE of Louisiana ex rel. Gregory FOUCHA v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2160.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Gregory Foucha, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus. Parish of Orleans. Nos. 248-168 and 251-578.

Denied.


text:
    STATE of Louisiana ex rel. Jimmy TROSCLAIR v. Fred S. BOWES, Criminal District Court Judge, Parish of Jefferson.
    No. 80-KH-2337.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Jimmy Trosclair, applying for writs of mandamus and prohibition. Jefferson Parish. No. 75-640.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Cleveland WILLIAMS and Michael Herbert v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2367.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Cleveland Williams and Michael Herbert, applying for writ of mandamus. Parish of Orleans. No. 231-287.

Writ denied. Moot.


text:
    STATE of Louisiana ex rel. James Earl GUTTER v. Warden Roger AUCOIN.
    No. 80-KH-2601.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re James Earl Gutter, applying for writ of mandamus. Parish of East Baton Rouge. No. 10-78-28.

Denied.


text:
    STATE of Louisiana ex rel. Cedric W. JOHNSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2654.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Cedric W. Johnson, applying for writ of habeas corpus. Parish of Orleans. No. 271-764.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. William W. PRUDHOMME v. Warden Hayden J. DEES, Dixon Correctional Institute.
    No. 80-KH-2919.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re William W. Prudhomme, applying for writ of certiorari. Parish of - Catahoula. No. 78-807.

Denied.


text:
    STATE of Louisiana ex rel. Major L. FORTENBERRY v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2922.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Major L. Fortenberry, applying for remedial writs. Parish of West Feliciana.

Denied.


text:
    STATE of Louisiana ex rel. Johnny Ray COLLINS v. STATE of Louisiana.
    No. 80-KH-2924.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Johnny Ray Collins, applying for remedial writs. Parish of Bossier. No. 54685.

Denied.


text:
    STATE of Louisiana ex rel. Tyrone Michael ROLLINS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2936.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Tyrone Michael Rollins, applying for writs of certiorari and supervisory writs. Parish of Terrebonne. No. 70798.

Writ denied.


text:
    STATE of Louisiana ex rel. Ray CALLOWAY v. Judge R. MARCEL, Criminal District Court, 32nd Judicial District Court.
    No. 80-KH-2937.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Ray Calloway, applying for remedial writs. Parish of Terrebonne. No. 44853.

Denied.


text:
    STATE of Louisiana ex rel. Kim Steven PHILLIPS v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 80-KH-2978.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Kim Steven Phillips, applying for writ of certiorari. Parish of Jefferson. No. 79-950.

Denied.


text:
    STATE of Louisiana ex rel. Eugene STRIPLING v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2979.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Eugene Stripling, applying for writs of certiorari and habeas corpus. Parish of Orleans. No. 248-086.

Denied.


text:
    STATE of Louisiana ex rel. Sylvester MILES, Jr. v. Frank C. BLACKBURN, Warden La. State Penitentiary.
    No. 80-KH-2981.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Sylvester Miles, Jr., applying for writ of certiorari. Parish of Franklin. No. 18697.

Writ denied.


text:
    STATE of Louisiana ex rel. Billy Ray WASHINGTON v. CLERK OF COURT & District Attorney, 1st Judicial District Court, Parish of Caddo.
    No. 80-KH-2982.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Billy Ray Washington, applying for writ of mandamus. Parish of Caddo. No. 89366.

Denied.


text:
    STATE of Louisiana ex rel. Sylvester ROLLINS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2996.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Sylvester Rollins, applying for writ of certiorari, habeas corpus, and mandamus. Parish of Orleans. No. 237 — 498.

Denied.


text:
    STATE of Louisiana ex rel. James W. DUPREE v. STATE of Louisiana.
    No. 81-KH-0020.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re James W. Dupree, applying for writ of habeas corpus. Parish of Franklin. Nos. 15908 and 15909.

Denied.


text:
    STATE of Louisiana ex rel. Herman WILLIAMS v. CRIMINAL DISTRICT COURT (SECTION F), PARISH OF ORLEANS.
    No. 81-KH-0026.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Herman Williams, applying for writs of certiorari and review. Parish of Orleans. No. 248-251.

Writ denied.


text:
    STATE of Louisiana ex rel. Johnny CLOPHUS v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0065.
    Supreme Court of Louisiana.
    March 20, 1981.
   In re Johnny Clophus, applying for writs of habeas corpus, certiorari, and mandamus. Parish of Calcasieu. No. 3667-75.

Denied.


text:
    STATE of Louisiana v. John TAYLOR.
    No. 81-K-0787.
    Supreme Court of Louisiana.
    March 23, 1981.
   In re John Taylor, Jr., applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Jefferson. No. 80— 2388.

Denied.


text:
    STATE of Louisiana v. Melvin McGEE.
    No. 81-K-0640.
    Supreme Court of Louisiana.
    March 24, 1981.
   In re Melvin McGee, applying for writ of certiorari, and a stay order. Parish of St. Landry. No. 34889.

Writ denied.

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


text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LULING INDUSTRIAL PARK, INC.
    No. 81-C-0796.
    Supreme Court of Louisiana.
    March 25, 1981.
   In re Louisiana Department of Transportation and Development, applying for supervisory and/or remedial writs or writ of certiorari. Parish of St. Charles. No. 14633.

Denied.

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


text:
    STATE of Louisiana v. James HEARN and Johnny Hearn.
    No. 81-K-0794.
    Supreme Court of Louisiana.
    March 26, 1981.
   In re James Hearn and Johnny Hearn, applying for writs of certiorari and a stay order. Parish of Lincoln. No. 26057.

Denied.


text:
    STATE of Louisiana v. Curtis O. CROSBY.
    No. 81-K-0406.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Curtis 0. Crosby, applying for writ of certiorari. Parish of East Baton Rouge. No. 7-80-644.

Granted.


text:
    STATE of Louisiana ex rel. William ROSS v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0411.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re William Ross, applying for writs of habeas corpus, certiorari, prohibition and mandamus. Parish of Caddo. No. 100573-HC.

Granted.


text:
    STATE of Louisiana v. Roy WELLS.
    No. 81-K-0451.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Roy Wells, applying for writs of certiorari and remedial writs, City Court of Bogalusa. No. J80^411. Parish of Washington.

Granted. On the findings of fact by the trial judge, the judgment is reversed.


text:
    STATE of Louisiana v. Louis RUFFIN, Jr.
    No. 81-K-0612.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Louis Ruffin, Jr., applying for writ of review. Parish of Caddo. No. 107476.

Granted.


text:
    STATE of Louisiana v. Joseph Neves MARCAL, III.
    No. 81-K-0743.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Joseph Neves Marcal, III, applying for writs of certiorari, prohibition, and mandamus. Parish of Terrebonne. No. 260-889.

Granted in part. The execution of sentence is stayed pending action by the United States Supreme Court; otherwise, the application is denied.


text:
    STATE of Louisiana ex rel. Douglas JOHNSON v. Hayden DEES, Warden, Dixon Correctional Institute.
    No. 80-KH-2815.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Douglas Johnson, applying for writ of mandamus. Parish of East Baton Rouge. No. 10-77 — 541.

Dismissed at relator’s request.


text:
    STATE of Louisiana ex rel. Gary JEFFERSON v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0298.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Gary Jefferson, applying for remedial writs. Orleans Parish.

Dismissed at request of relator.


text:
    STATE of Louisiana ex rel. Johnny BANKS v. Honorable Donovan PARKER, Judge, 19th Judicial District.
    No. 80-KH-2732.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Johnny Banks, applying for writ of mandamus. Parish of East Baton Rouge. No. 6-79-137.

Denied. The district court has acted.


text:
    STATE of Louisiana ex rel. Harold J. VINCENT v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2837.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Harold J. Vincent, applying for writs of habeas corpus and certiorari. Parish of Vernon. Nos. 23807 and 23808.

Denied.

DIXON, C. J., would grant and order an evidentiary hearing on relator’s claim number 1.


text:
    STATE of Louisiana ex rel. George SIMMONS v. Clerk of Court, Robert J. ZIBILICH, Esq., Atty. OIDP, David R. Jennings, Esq., Asst. District Attorney, Orleans Criminal District Court, State of Louisiana.
    No. 81-KH-0025.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re George Simmons, applying for writ of habeas corpus. Orleans Parish. No. 244-613.

Denied.


text:
    STATE of Louisiana ex rel. Preston DAIGRE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0040.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Preston Daigre, applying for writs of certiorari, prohibition, mandamus, or ha-beas corpus. Orleans Parish. No. 239-339.

Denied.


text:
    STATE of Louisiana ex rel. Willie BANKS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0063.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Willie Banks, applying for writ of certiorari. Parish of East Baton Rouge. No. 2-73-3105.

Writ denied.


text:
    STATE of Louisiana ex rel. Johnnie B. MAGEE v. Ruche J. MARINO, Judge, Division C, 29th Judicial District Court, Parish of St. John the Baptist.
    No. 81-KH-0066.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Johnnie B. Magee, applying for writs of certiorari, prohibition, mandamus and habeas corpus. Parish of St. John The Baptist. No. 102-78.

Denied.


text:
    STATE of Louisiana ex rel. Kester Lee HALL v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0067.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Kester Lee Hall, applying for writ of habeas corpus. Parish of Orleans. No. 167-868, Sect. C.

Denied.


text:
    STATE of Louisiana v. Richard Wayne CRAIG.
    No. 81-K-0071.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Richard Wayne Craig, applying for remedial and supervisory writs. Parish of Ouachita. No. 38542.

Denied.

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


text:
    STATE of Louisiana ex rel. Roger Dale YATES v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0110.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Roger Dale Yates, applying for remedial writs, and/or writ of habeas corpus. Orleans Parish. No. 248-553.

Denied.


text:
    STATE of Louisiana ex rel. Marvin Aubry DeVORE v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0111.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Marvin Aubry DeVore, applying for writ of habeas corpus or certiorari. Parish of St. Landry. No. 27521.

Denied.


text:
    STATE of Louisiana ex rel. Larry S. PERKINS v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0282.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Larry S. Perkins, applying for remedial writs. West Baton Rouge Parish. Nos. 44516 and 44528.

Denied.


text:
    STATE of Louisiana ex rel. Manuel HENRY v. C. Paul PHELPS, Secretary, Department of Corrections.
    No. 81-K-0267.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Manuel Henry, applying for remedial writs. Parish of East Baton Rouge. No. 11-80-533.

Denied.

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


text:
    STATE of Louisiana ex rel. Mary Ann COOPER v. Johnny JONES, Custodian.
    No. 81-KH-0116.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Mary Ann Cooper, applying for remedial writs. Parish of Orleans. No. 258-161.

Denied.


text:
    STATE of Louisiana ex rel. John HICKS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0145.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re John Hicks, applying for writs of habeas corpus, certiorari, prohibition and remedial writs. Parish of Jefferson. No. 73-1157.

Denied.


text:
    STATE of Louisiana ex rel. Charles A. WATTS v. Frank BLACKBURN, Warden, et al., Louisiana State Penitentiary.
    No. 81-KH-0146.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Charles A. Watts, applying for writ of habeas corpus and certiorari. Parish of Calcasieu. Nos. 73073 through 73092.

Denied. Relator has served his sentence.


text:
    STATE of Louisiana ex rel. Larry ROSS v. STATE of Louisiana.
    No. 81-KH-0187.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Larry Ross, applying for writ of mandamus. Parish of Franklin. No. 16822.

Denied. Hearing fixed for April 15,1981.


text:
    STATE of Louisiana ex rel. Herman MITCHELL, Jr. v. 21ST JUDICIAL DISTRICT COURT, PARISH OF LIVINGSTON, State of Louisiana.
    No. 81-KH-0223.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Herman Mitchell, Jr., applying for writs of certiorari, habeas corpus, and mandamus. Parish of Livingston. No. 1370.

Writ denied.


text:
    STATE of Louisiana, ex rel. Hughie Jack PITTS v. Eddie SAPIR, Judge Municipal Court, and Capt. Richard Martin, Warden House of Detention.
    No. 81-KH-0225.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Hughie Jack Pitts, applying for writ of habeas corpus. Orleans Parish. No. J— 21290-80.

Denied. Relator has been released.


text:
    STATE of Louisiana ex rel. Robert FELTON, Jr. v. STATE of Louisiana.
    No. 81-KH-0227.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Robert Felton, Jr., applying for writ of certiorari. Parish of Orleans. No. 234-672.

Denied.


text:
    STATE of Louisiana ex rel. Sidney DELOCH v. CLERK OF COURT, 18TH JUDICIAL DISTRICT COURT et al., State of Louisiana et al.
    No. 81-KH-0228.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Sidney Deloch, applying for writs of certiorari, habeas corpus and mandamus. Parish of Iberville. No. 767-79.

Denied.


text:
    STATE of Louisiana ex rel. Bradley David HEBERT v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0259.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Bradley David Hebert, applying for writ of certiorari. Parish of Cameron. Nos. 15086, 15037 and 15038.

Denied.


text:
    STATE of Louisiana ex rel. Jimmie L. TAYLOR v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0297.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Jimmie L. Taylor, applying for writs of certiorari, prohibition and habeas corpus. Orleans Parish. No. 245-992.

Denied.


text:
    STATE of Louisiana ex rel. Charles ROBERTS v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0325.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Charles Roberts, applying for remedial writs. Parish of Iberia. No. 28360.

Denied.


text:
    STATE of Louisiana ex rel. Roderick G. WILSON v. Warden Frank C. BLACKBURN et al., Louisiana State Penitentiary.
    No. 81-KH-0358.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Roderick G. Wilson, applying for writs of habeas corpus and certiorari Parish of Orleans. No. 260-558.

Denied.


text:
    STATE of Louisiana ex rel. Arthur GARDNER & Eugene Wright v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0360.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Arthur Gardner and Eugene Wright, applying for writ of certiorari, prohibition, mandamus and habeas corpus. Parish of Bienville. No. 17360.

Denied.


text:
    STATE of Louisiana v. Bertha BENNETT.
    No. 81-K-0720.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Bertha Bennett, applying for writ of certiorari. Parish of East Baton Rouge. No. 6-80-162.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Winston J. KOVACH.
    No. 81-K-0711.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Winston J. Kovach, applying for writs of certiorari, prohibition and mandamus, and stay order. Parish of Livingston. No. 2060.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Howard L. GOODS v. PARISH OF CATAHOULA, State of Louisiana.
    No. 81-KH-0706.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Howard L. Goods, applying for remedial writs. Parish of Catahoula. Nos. 80-168 and 80-148.

Denied. Appeal is pending.


text:
    STATE of Louisiana v. Ebb SIMMONS.
    No. 81-K-0668.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Ebb Simmons, applying for writs of certiorari. Parish of Orleans. No. 273-183.

Denied.


text:
    STATE of Louisiana ex rel. Kent WARNER v. STATE of Louisiana.
    No. 81-KH-0657.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Kent Warner, applying for writs of review. Parish of St. Tammany. No. 76211.

Denied.


text:
    STATE of Louisiana v. Michelle D’ANGELO.
    No. 81-K-0634.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Michelle D’Angelo, applying for supervisory writs and stay order. Parish of Jefferson. No. 80-2678.

Denied.


text:
    STATE of Louisiana v. Joseph Perry REYNOLDS. Joseph Perry REYNOLDS v. Carlo LISTI, Sheriff, Lafayette Parish.
    No. 81-K-0628.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Joseph Perry Reynolds, applying for supervisory writs and stay order. Parish of Lafayette. Nos. 43530 and 810821-B.

Denied.


text:
    Albert A. RICKER, Jr. v. Webster THOMPSON, Little Zion Missionary Baptist Church of Kenner, Louisiana, Inc. and Travelers Indemnity Company.
    No. 81-C-0540.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Albert A. Ricker, Jr., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. No. 11616.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Lawrence E. DAY.
    No. 81-K-0501.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re State of Louisiana, through the District Attorney Ossie Brown, applying for writs of certiorari, prohibition and mandamus. Parish of East Baton Rouge. No. 1-80-12.

Denied.

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


text:
    STATE of Louisiana v. Eugene CAMANGA.
    No. 81-K-0495.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Eugene Camanga, applying for writs of certiorari, prohibition and mandamus. Parish of Orleans. Nos. 236763 and No. A-37878.

Denied.

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


text:
    STATE of Louisiana ex rel. Joseph J. CARTER v. C. Paul PHELPS.
    No. 81-KH-0478.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Joseph J. Carter, applying for writ of certiorari. St. Mary Parish. No. 62-120.

Denied.


text:
    STATE of Louisiana ex rel. Frederick JOHNSON v. 30TH JUDICIAL DISTRICT COURT, PARISH OF VERNON.
    No. 81-KH-0475.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Frederick Johnson, applying for remedial writs. Parish of Vernon. Nos. 32564 and 27875.

Denied.


text:
    STATE of Louisiana ex rel. Willie F. PRICE v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0465.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Willie F. Price, applying for writ of habeas corpus. Parish of Ouachita. Nos. 37535 and 37536.

Denied.


text:
    STATE of Louisiana v. Joel A. VERNON.
    No. 81-K-0457.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Joel A. Vernon, applying for supervisory and remedial writs. Parish of Vernon. No. 31343.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Isiah HALL v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0436.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Isiah Hall, applying for writ of certiorari. Parish of Jefferson. No. 75-2005 Div. H.

Denied.


text:
    STATE of Louisiana ex rel. Lionel WALLACE, Sr. v. Warden Roger AUCOIN et al.
    No. 81-KH-0433.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Lionel Wallace, Sr., applying for writ of habeas corpus. Parish of East Baton Rouge. No. 1-80-439.

Denied.


text:
    STATE of Louisiana ex rel. John ELMORE, Jr. v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0382.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re John Elmore, Jr., applying for writs of certiorari. Parish of Ouachita. No. 37107.

Denied.


text:
    STATE of Louisiana ex rel. Ernest DURAND v. STATE of Louisiana.
    No. 81-KH-0380.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Ernest Durand, applying for writ of certiorari. Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Timothy George BALDWIN.
    No. 81-K-0818.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Timothy George Baldwin, applying for stay of execution and post-conviction relief. Parish of Ouachita. No. 38292.

The request for stay order and the application are denied. Although we disagree with the trial judge’s opinion that he lacked jurisdiction to rule on this application, since this Court has original jurisdiction, we deny the application.


author: CHEHARDY, Judge. REDMANN, Judge,

text:
    SUCCESSION of Henry ROSS.
    No. 10896.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 11, 1981.
    Lacour & Calloway, Vanue B. Lacour, Baton Rouge, for Zirlee Henderson Nelson, Elizabeth Henderson Ingram and David Henderson, appellees.
    Before REDMANN, BOUTALL and CHEHARDY, JJ.
   CHEHARDY, Judge.

Henry Ross was married twice, although he had no children from either marriage. After he died on August 11,1971, his widow was placed in possession of all of his property (under LSA-C.C. art. 916) on September 28,1971. Petitioners, alleging that they are the acknowledged illegitimate children of Henry Ross, now ask that that judgment of possession be annulled and that they be declared the heirs of Henry Ross. The district court maintained the exceptors’ exception of no cause of action and dismissed the demands of the petitioners.

LSA-C.C. art. 919 prohibits acknowledged natural children from inheriting intestate from their natural father when he has a surviving wife. This article, however, was expressly declared unconstitutional by the Louisiana Supreme Court in the case of Succession of Brown, 388 So.2d 1151 (La.1980), relying on the case of Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 1459 (1977), and agreeing that innocent children should not suffer for the promiscuous adventures of their parents.

In Lovell v. Lovell, 378 So.2d 418 (La.1979), the Supreme Court addressed itself to the issue of when a decision which declares an article of the Louisiana Civil Code-to be unconstitutional should be given retroactive effect and stated at pages 421 — 422:

“In determining whether or not our decision should be given retroactive effect, three factors should be considered: (1) the decision to be applied nonretroac-tively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed; (2) the merits and demerits must be weighed in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective application will further or retard its operation; and (3) the inequity imposed by retroactive application must be weighed. Chevron Oil Company v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971).”

The court in Lovell, upon consideration of these factors, concluded that its decision declaring LSA-C.C. art. 160 (as it read prior to the 1979 amendment making it gender-neutral) unconstitutional should not be applied retroactively. In the present case, the declaration of the unconstitutionality of LSA-C.C. art. 919 in Succession of Brown, supra, certainly establishes a new precedent of law in that an acknowledged illegitimate can now maintain intestate succession rights to his father’s estate even if other relatives exist. Furthermore, a prior decision of the United States Supreme Court specifically held that LSA-C.C. art. 919 was constitutional, Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971). Certainly in the present case, as in Lovell, substantial inequity would result if all prior judgments of possession which relied on the substantive law of LSA-C.C. art. 919 were declared invalid, and such a holding would engender new litigation in each case where there had been such a justified reliance. As noted in Lovell, where such a decision could produce substantial inequitable results if applied retroactively, there is ample basis for avoiding the injustice or hardship by a holding of nonretroactivity. Cipriano v. City of Houma, 395 U.S. 701, 89 S.Ct. 1897, 23 L.Ed.2d 647 (1969).

Accordingly, although the Supreme Court did not address itself to the issue of the retroactive application of its declaration of the unconstitutionality of LSA-C.C. art. 919 in Succession of Brown, supra, we hold that that declaration should only be applied prospectively from the September 3, 1980 decision.

For the reasons assigned, the decision of the district court is affirmed.

AFFIRMED.

REDMANN, J., dissents with written reasons.

REDMANN, Judge,

dissenting.

Henry Ross was married twice but had no children from either marriage. He died August 11,1971, and on September 28, 1971 a judgment placed his widow, Rebecca Henderson Ross, in possession of all his property, recognizing her as owner of half as surviving spouse in community and as heir under La. C.C. 916 to her husband’s half because he left “neither father nor mother nor descendants.” Rebecca thereafter died, on a date not shown by this record. Her succession proceeding had not yet been opened when the petition now before us was filed in the succession of Henry, naming as defendants the intestate heirs of Rebecca. Petitioners allege that they are acknowledged illegitimate children of Henry and they ask that the 1971 judgment of possession be annulled and that they be declared Henry’s heirs.

The petition was dismissed on exception of no cause of action and petitioners now appeal.

The Equal Protection clause, U.S.Const. Amend. 14, prevents “discrimination against illegitimates in a state intestate succession law.” Trimble v. Gordon, 1977, 430 U.S. 762, 774, 97 S.Ct. 1459, 1467, 52 L.Ed.2d 31. Louisiana’s Civil Code article 919 to the contrary is therefore unconstitutional; Succession of Brown, La.1980, 388 So.2d 1151. The same reasoning dictates that, because legitimate descendants omitted from a succession proceeding are allowed to assert their claims even more than SO years after a judgment of possession in their grandfather’s succession, Sun Oil Co. v. Tarver, 1951, 219 La. 103, 52 So.2d 437, plaintiff illegitimates can equally assert their claims a mere eight years after a judgment of possession in their father’s succession. Whatever disturbance of land titles and orderly distribution of property may occur because heirs come late into a succession is the same whether the claimants are legitimate or illegitimate. See Brown, above.

To the argument that judges’ rules outrank the United States Constitution, and that judges who cannot escape declaring a statute unconstitutional may nevertheless escape the unwelcome effect of the unconstitutionality (or may punish the litigant who forced its declaration) by making up a rule that the unconstitutionality is “prospective,” the answer is that the supremacy clause, U.S.Const. art. VI cl. 2, grants no such supremacy to judges’ rules.

The judgment should be reversed and the exception overruled.

      . It is true, as appellees argue, that Brown relied on La.Const. art. 1 § 3 (adopted in 1974 after our decedent’s death), making Brown’s reliance on U.S.Const. Amend. 14 “unnecessary.” But the fact is the 14th Amendment ruling was the court’s first reasoning and the court developed it at great length.
      Appellees also argue that as to community property the surviving spouse already owns half in his or her own right and the inheritance of the deceased spouse’s half can reasonably be treated differently from the inheritance of separate property. But community property is not excluded from inheritance by legitimate children and therefore cannot be excluded from inheritance by illegitimate children.

      . Allen v. Anderson, La.App.Orl. 1951, 55 So.2d 596, upheld the claim of acknowledged illegitimate children against a third person who had bought formerly community property from their mother’s husband after the husband was placed in possession by judgment in the mother’s succession based on an erroneous affidavit of heirship. Similarly Succession of Rosinski, La.App. 3 Cir. 1963, 158 So.2d 467, upheld the claim of the children of predeceased siblings of a decedent against a third person who had bought from decedent’s sister after the sister was placed in possession by judgment in decedent’s succession, based on a forged will. Thus, as Allen and Rosinski demonstrate, the theory of stability of land titles is, to some extent, an overstatement generated by wishful thinking. Louisiana has given other goals a higher priority and has committed “stability” of land titles derived from a decedent’s succession to statutes establishing the ten- and 30-year acquisitive prescriptions for possessors in good and bad faith, C.C. 3478 and 3499, and the liberative prescriptions of five years against actions to probate a will, R.S. 9:5643, and of ten years to assert heirship against a third person who acquired from persons holding under a judgment of possession, R.S. 9:5682.


author: REDMANN, Judge.

text:
    Maureen T. CASEY v. Keith M. CASEY.
    No. 11173.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 25, 1981.

      Kim A. Gandy, New Orleans, for plaintiff-appellant.
    Harry A. Cabral, Jr., Metairie, for defendant-appellee.
    Before REDMANN, GULOTTA and BARRY, JJ.
   REDMANN, Judge.

The chronological index of the pleadings and documents filed in this suit for alimony and child support occupies four legal-size pages. We footnote a few of the more important. The decisive issue, however, is whether a declaration of nullity of judgment is required by the husband’s having used a Virginia decree of separation (“divorce a mensa et thoro”) as (1) a divorce so as to terminate Louisiana pre-divorce alimony but (2) a separation so as to prevent an increase in permanent alimony when the husband himself had filed in the record (so as to defeat the wife’s action for an initial fixing of permanent alimony) the authenticated Virginia decree of permanent alimony. We hold that it is.

We first note that, as the husband correctly argues, the only issue brought before us by this July 26, 1979 appeal is the correctness of a June 28, 1979 judgment dismissing on exception of no right or cause of action the wife’s rule to increase post-divorce alimony, prior proceedings having been dismissed by a judgment of May 4, 1979, as to which this appeal would be too late.

We second note, nevertheless, that it is unacceptable that the husband attempts to use the Virginia separation based on the husband’s fault as (1) a divorce so as to stop alimony pendente lite but (2) a separation so as to prevent an increase in permanent alimony, notwithstanding that he himself introduced into the record the Virginia award of permanent alimony.

We therefore accept the wife’s lengthy and plaintive pleading titled “rule for . .. past due alimony ...” filed June 1, 1979, as a plea for whatever relief the trial court could give, C.C.P. 862, from the injustice of using the same Virginia divorce decree (finding the husband at fault) to defeat both pre-divorce and post-divorce alimony. And we conclude that the correct response on the part of the trial court was not merely (in effect) to uphold its 1975 judgment terminating pre-divorce alimony but also to annul its May 4, 1979 judgment dismissing the March 27, 1978 rule for an increase in post-divorce alimony.

We now grant that relief by authority of C.C.P. 2164 as the only “just, legal and proper” judgment this record will tolerate under fundamental due process, equal protection and open court notions, La.Const. art. 1 §§ 2, 3 and 22.

Decree

The judgment of June 28, 1979 is therefore amended to clarify that the wife’s rule is dismissed only insofar as it sought pre-di-vorce alimony, and the judgment is further amended to add:

“Further ordered, adjudged and decreed that the judgment of May 4, 1979 is annulled.”

This matter is remanded, effective immediately and notwithstanding the husband’s right to apply for rehearing or to the Supreme Court for writs, for hearing on the wife’s almost three-year-old rule of March 27, 1978 for increase in the $100 a month permanent alimony fixed by the Virginia court in 1975.

Costs of this appeal are to be paid by defendant Keith M. Casey.

      . On June 25, 1974 these proceedings began as a wife’s suit for separation, alimony, child custody and support. The husband excepted to the Louisiana court’s jurisdiction and also pleaded the pendency of similar proceedings in Virginia. Those exceptions were overruled by the trial court and the Louisiana Supreme Court refused writs. Thereafter, by judgment signed November 7, 1974, alimony of $1,300 and child support of $1,200 monthly were fixed, commencing from June 25, 1974.
      On December 17, 1974, the husband filed a petition alleging that he filed with it an authenticated copy of a Virginia “divorce” decree of November 12, 1974 and moved dismissal of this suit. That motion was set for hearing January 21, 1975.
      On December 23 the wife obtained a rule, also set for January 21, for contempt and for $17,500 past due alimony.
      On January 23, the trial court (1) “recognized .. . with full faith and credit” the Virginia decree “a copy of which was filed herein on December 17, 1974”; (2) reserved to the wife the right to have her entitlement to “alimony” and to child support determined “herein”; (3) gave judgment for $13,625 past due alimony and support; and (4) held the husband in contempt. That January 23 judgment said nothing expressly about the prior alimony and support judgment of November 7, but it did limit the past due alimony and support award to the amount that had accrued as of the husband’s filing on December 17 for recognition of the Virginia judgment.
      The Virginia decree of November 12, 1974 was in fact a divorce “a mensa et thoro,” a separation from bed and board rather than a divorce “a vinculo matrimonii” (from the bond of matrimony). And it was plaintiff who by cross complaint (reconventional demand) obtained that judgment (on the basis of the husband’s fault) and it was plaintiff who in fact had already obtained, prior to the Louisiana judgment of January 23, a final divorce “a vinculo matrimonii” in Virginia on December 30, 1974.
      No appeal was taken from the January 23 judgment. Instead, the wife filed on January 28 a petition for alimony and child support. That petition alleged that the Louisiana court had made its own the Virginia “judgment decreeing divorce.” The Louisiana court issued a show cause order.
      The husband filed exceptions of no cause of action, lis pendens and no jurisdiction, all of which were overruled. Because he did not object to the arguably improper use of summary procedure by the dilatory exception at the same time he filed the declinatory exceptions to the jurisdiction and lis pendens (see La.C.C.P. 928), he waived that exception; C.C.P. 926.
      On March 26, 1975, the husband’s answer admitted the wife’s allegation of the “judgment decreeing a divorce” but alleged both fault and lack of need on the wife’s part as disqualifying her for permanent alimony.
      On April 18, 1975, the wife obtained from the Virginia court a decree awarding her $100 alimony and $400 child support “to complete the [divorce] a vinculo decree already entered.”
      Not until December 12, 1977, did the wife renew her demand for an alimony award from the Louisiana court (though other skirmishing had occurred meanwhile). On that day she filed another petition for alimony alleging divorce (although with the wrong date) in Virginia and the recognition of that divorce by the Louisiana trial court, but not mentioning the Virginia alimony decree. The husband, however, filed an authenticated copy of the Virginia decree with an exception of res judicata.
      The husband’s exception of res judicata was maintained on March 23 and the wife was given leave to amend to seek alimony increase, which she did on March 27, 1978.
      On April 14 the husband filed a “petition to determine fault,” asking that the wife be found at fault and “prohibited from claiming permanent alimony in these proceedings.” That pleading distracted the parties for the next year.
      On May 4, 1979 after a hearing at which the husband “urged orally” an exception of “no right or cause of action ... to all pleadings filed herein on the basis that there is no judgment of divorce of record in these proceedings,” the trial judge sustained that exception “and this entire proceeding is dismissed.”
      On June 1, 1979 (too late to be treated as a motion for a new trial after the May 4 judgment), the wife filed a rule attempting to make executory the $2,500 monthly temporary alimony and child support that had been fixed in 1974, on the theory that just as it prevented her suit for alimony increase, the failure to have the Virginia final divorce decree recognized should also prevent the husband from treating the alimony pendente lite as having been terminated by the Virginia final divorce. The husband’s exception of “no right or cause of action” was sustained on June 28, 1979 and the wife appealed on July 26.

      . Except as provided in Article 1703, a final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings and the latter contain no prayer for general and equitable relief.


author: GARRISON, Judge.

text:
    Clarence G. SIMONEAUX, Jr., et al. v. Marlene A. DAVIS, Joseph Greve, State Farm Automobile Insurance Co., and Allstate Insurance Co.
    No. 10312.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 2, 1981.
    Joseph F. Bishop, Jr., New Orleans, for plaintiff-appellant.

      Jesse S. Guillot, New Orleans, for defendant-appellee State of Louisiana, Department of Transportation and Development.
    John J. Maxwell, New Orleans, for defendant third-party plaintiff-appellee Department of Highways.
    E. Kelleher Simon, New Orleans, for defendant third-party plaintiff-appellant Allstate Insurance Co.
    Before BOUTALL, GARRISON and CHEHARDY, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court granting damages in the amount of $390,890.93 to plaintiff individually and as administrator of the succession of his deceased wife, and to plaintiff’s minor children.

The suit is the result of an automobile accident which occurred on June 25, 1978, on Interstate 10 near the Broad Street overpass — South Galvez intersection in the City of New Orleans. Defendant’s vehicle was proceeding in the lefthand, southbound lane of the Interstate. Plaintiff’s vehicle was proceeding in the lefthand, northbound lane of the Interstate. The Davis vehicle struck a large puddle of water; defendant lost control of the vehicle, which crossed the highway median, entered the northbound lane and struck the Simoneaux vehicle in a head-on collision. As a result of the collision, Clarence Simoneaux suffered severe personal injuries and his wife, Sandra Simo-neaux, died several hours later.

After a full trial on the merits, judgment was rendered in favor of plaintiff and against Marlene A. Davis and her insurer, State Farm Mutual Auto Insurance Co. Additionally, plaintiff and Allstate Insurance Company, the plaintiff’s insurer, had filed third-party petitions against the Louisiana Department of Highways. Allstate Insurance Company and the plaintiff has appealed the dismissal of the Louisiana Department of Highways.

On appeal, both appellants argue that the trial court erred in finding that the Department of Highways was not negligent in the design, construction, maintenance, and inspection of the highway, in finding that actual and/or constructive notice was required to support a judgment, in finding that the Department did not receive actual and/or constructive notice, and in failing to render judgment against the Department. Additionally, appellant Simoneaux further argues that the trial court erred in failing to award reasonable fees to plaintiff’s expert.

In his written reasons for judgment, the trial judge found as follows:

“Needless to say, it would be fruitless for this court and this judgment to go into all the factual and legal arguments given to it by counsel of all parties, said memorandums being very well documented and thorough.
From this court’s recollection of the facts there is no doubt that Miss Davis was driving an automobile on a day when it was either raining at the time she was driving it (or) had been raining prior to that time. The rain evidently was of sufficient quantity that a puddle of water accumulated at the spot where Miss Davis’ car was going to be traveling. While the attorney representing Miss Davis contends that she was not negligent because the puddle in question should not have been there this court cannot conclude other than that it believes that Miss Davis did not use proper care because of the condition of the weather at the time and the fact that she was traveling on a trafficked road known as South Galvez Street and also referred to as expressway. These mediums of traffic are very dangerous ordinarily and in conditions which were not best conducive to driving, one driving must take into consideration the weather. This court believes that Miss Davis therefore was negligent in failing to use the necessary care required under the circumstances and conditions of the day in question.
The most emphasis of the case was directed, however, to the design and construction of this area of the expressway by the Highway Department and whether or not actual or constructive notices had been given to the Highway Department as to the fact that water would accumulate at this particular location. Or that the drain located in this area was not properly functioning during the rainy weather. This court heard numerous experts, both from the Highway Department and from the Plaintiff, as to the design and construction of the drainage system leading from the roadway.
After hearing the testimony of all the experts, the court is of the belief that the Highway Department design and construction is not defective and that their drainage system was also not defective. To put the burden on a public body such as the Highway Department to constantly maintain a vigil over every square inch of expressway and its appurtenances such as drainage is a monumental task. While this court understands the theory of actual and constructive notices the court is not convinced that the Highway Department received either actual or constructive notice of the water accumulating to such an extent in the area as it allegedly accumulated on the date of the accident.
Allstate Insurance cites various cases in their memorandum as to failure on the part of the highway department to make safe defects in the road, to warn of dangers that might exist in the road and other factors that might cause injury to people traveling upon the highways. The problem that evidently occurred on the day in question, fortunately is not one that is an everyday occasion. That is to say, the occurrence of an accident where there is an accumulation of water is not as common as the accidents which result from so-called pot holes or obstructions or debris left in the expressway or its various lanes. This court, however, cannot at this time hold the State Highway Department to that high degree of care as third party plaintiff would want it to do under the circumstances, facts, and evidence I have heard.”

As Miss Davis has not appealed the judgment against her, we pretermit discussion of her liability. We do agree, however, with the finding of the trial judge that Miss. Davis was negligent and that she failed to exercise the due diligence and care required by a reasonable woman under similar circumstances.

Turning to the issue of liability on the part of the Department, we note that numerous experts were presented. The question of assessment of the credibility of competing expert witnesses is one better resolved by the trial judge who has the opportunity to observe the respective de-meanors of the witnesses. In this area, as in other areas of factual determination, we cannot disturb the factual determinations of the trial judge unless upon our independent review of the record we find that he was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330, 1333 (1978).

The evidence presented by the State’s experts tended to show that the Highway was built as designed, that the design conformed to applicable standards for highway construction at the time of building and design, that reasonable inspection and maintenance precautions were taken, that any concrete cracks or breakage was probably the result of soil subsidence, and that the Highway stretch had been in use for over 15 years with a vehicle usage of 45,000 per day and that during this time only 5 complaints were registered prior to the accident, although the exact location of. the areas complained of were not specifically pinpointed as the accident site. Based upon our independent review of the testimony, we cannot conclude that the trial judge was manifestly erroneous.

On the issue of strict liability under C.C.Art. 2317, we find that the trial court did not err in finding no liability. In Shipp v. Alexandria, 395 So.2d 727 (1981), the Louisiana Supreme Court re-affirmed the rule of Jones v. City of Baton Rouge, 388 So.2d 737 (1980) in stating:

“An injured party seeking damages under art. 2317 need not prove negligence, that is, that any particular act or omission on the part of the defendant caused his injuries. He must only prove that the thing which caused the damage was in the care or custody of the defendant, that the thing had a vice or defect, that is, that it occasioned an unreasonable risk of injury to another, and that his injury was caused by the defect. Once these elements are proven, the custodian can escape liability only by showing that the harm was caused by the fault of the victim, by the fault of a third person, or by an irresistible force. Jones v. City of Baton Rouge, supra; Loescher v. Parr [324 So.2d 441 (1975)], supra.
In Jones v. City of Baton Rouge, supra, we held that municipalities and other public bodies may be found liable for damages for things in their custody, and that where delictual responsibility is based not on negligence but on legal fault under art. 2317, the fact of whether or not a public body had knowledge of the existence of the danger is irrelevant.” (At p. 728).

In the instant appeal, the trial judge concluded that the harm was caused by the fault of a third person, Marlene Davis. Accordingly, strict liability under C.C.Art. 2317 does not apply.

Turning to the question of liability predicated upon negligence we note that in order for the state or a subdivision thereof to be found negligent, it is required that actual or constructive notice of the defect be present. Pickens v. St. Tammany Police Jury, 323 So.2d 430 (La., 1975).

The question of fact to be resolved by the trial judge was whether the 5 complaints over a 15 year period were sufficient to constitute actual notice. He concluded that they were not sufficient. Likewise, in the area of constructive notice it is required that the trial judge examine the duration of the existence of the puddle on an individual incident basis and the frequency of intervals of re-occurrence of the puddle in order to determine the history of the duration of the puddle. Loubat v. City of New Orleans, 185 So.2d 87 (App.4th, 1966) at 90. We find the evidence presented in order to give rise to the presumptive inference of constructive notice is insufficient and we cannot conclude that his factual determination was manifestly erroneous.

The last issue to be addressed by this court is the question of expert fees. The trial judge is granted considerable discretion in awarding of fees. We cannot conclude that the amount awarded constituted a clear abuse of that discretion.

For the reasons discussed, the judgment of the district court is affirmed.

AFFIRMED.


author: SAMUEL, Judge.

text:
    De Lesseps S. MORRISON, Jr. v. Robert J. FINERAN.
    No. 11784.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      Patrick M. Reily, New Orleans, for plaintiff-appellant.
    Curtis, Hyde, Mooney & McEachin, Eugene M. McEachin, Jr., New Orleans, for defendant-appellee.
    Before SAMUEL, GARRISON and KLIEBERT, JJ.
   SAMUEL, Judge.

Plaintiff filed this suit to have a deposit, placed by defendant in connection with a contract to sell and purchase immovable property, declared forfeited. After a trial on the merits, judgment was rendered in favor of defendant, and plaintiff has appealed.

On November 11, 1977 plaintiff entered into a contract to sell immovable property to defendant. The agreement contained no approximation of measurements, but instead the parties agreed to buy and sell the property “as per title”. It called for a defendant deposit of $6,500 in the form of a promissory note to secure performance of his obligations under the contract. It also required the sale be passed before defendant’s notary between December 1,1977 and December 31, 1977. On December 29, 1977 defendant’s attorney wrote plaintiff asserting title to the property was unmerchanta-ble, refusing to take title, and demanding return of the deposit.

Defendant complains of two defects in the title, and argues both are encroachments which render title unmerchantable.

The first alleged defect is a common or party wall on the right side line of the property. This wall is not a part of a building and is in fact, according to the survey, a brick wall which appears to be exactly on the center of the surveyed boundary.

Louisiana Civil Code Article 685 provides in pertinent part:

“A fence on a boundary is presumed to be common unless there is proof to the contrary.”

In Langford Land Co. v. Dietzgen Corp., this court held an apparent servitude evidenced by such a common wall does not suggest litigation unless a question is raised as to the obligation of the owner of the property sold to pay for the cost of the wall. No such question was raised in this case, and Article 685 presents the contrary legal presumption. We find no merit in this first alleged title defect.

The second defect urged by defendant is a side fence which encroaches onto the neighboring property for a distance at the front of 0.3.1 feet gradually increasing to 1.2.4 feet at the rear. Defendant argues this encroachment renders plaintiff’s title unmerchantable and cites in support of his argument the Supreme Court case of Young v. Stevens, in which a purchaser declined to accept the seller’s title on the ground it was unmerchantable because of certain encroachments, and sued to recover his deposit, cost, and attorney’s fees. The Supreme Court made the following pronouncement with regard to encroachments:

“.... In like manner, a person buying property whose improvements encroach upon his neighbor is likely to sustain a law suit to defend his right to possession of the property sold to him beyond his title. Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); DeSalvo v. Doll, 209 La. 1063, 26 So.2d 140 (1946); Jacobs v. Freyban, 156 La. 585, 100 So. 726 (1924); Schroeder v. Krushevski, 186 So.2d 640 (La.App.1966); Clesi, Inc. v. Quaglino, 137 So.2d 500 (La.App.1962); Papalia v. Hartson, 52 So.2d 775 (La.App.1951).
The same result obtains, therefore, whether the adjoining property owner’s improvements encroach upon the property to be sold or whether the property to be sold encroaches onto the adjoining property. What makes the title unmer-chantable in either instance (and both occur here) is not necessarily the extent of the encroachment, but the fact that it suggests litigation. The law will not require Young to assume Mrs. Stevens’ controversy with her neighbor.
Indeed, the prospect of litigation is the very circumstance which would destroy the principal cause of a contract to purchase a home. A person buying a home wants, above all, peaceful occupancy among peaceful neighbors. Selling him property which will probably bring on á lawsuit is contrary to that motive and furnishes a basis for nullifying the contract. La.Civil Code art. 1823 (1870).”

In the present case, plaintiff’s fence encroaches onto the adjoining property. The ruling in Young v. Stevens, although including both encroachments onto the adjoining property and onto the property being sold, mandates we hold plaintiff did not have merchantable title. We consequently so hold, even though there was no fence encroachment onto the property being sold in this case.

Finally, defendant raises the point that he should have been placed in default. However, by letter defendant clearly refused to take title, and his notary never set a time or place for the act of sale to be passed. Since the contract provided for defendant’s notary to pass the sale, it was impossible for plaintiff to make a formal tender. In this situation, the law does not require a putting in default when there has been an active breach by one of the parties, and an attempt to place defendant in default would have been a vain and useless act in any event.

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

AFFIRMED.

      . La.App., 352 So.2d 386.

      . See also LSA-C.C. Art. 675.

      . 252 La. 69, 209 So.2d 25.

      . See LSA-C.C. Art. 1932.


text:
    Sandra L. Seales, Wife of Joseph A. VERRETT, III v. Joseph A. VERRETT, III.
    No. 11952.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 7, 1981.

      Levy, Smith & Gennusa, Michael A. Villa, New Orleans, for plaintiff-appellee.
    Bruno, Bruno & Blouin, Jerry J. Blouin, New Orleans, for defendant-appellant.
    Before SAMUEL, GARRISON and CHE-HARDY, JJ.
   SAMUEL, Judge.

We dismiss as untimely an appeal from a judgment signed November 29,1978 increasing child support. The petition for appeal was filed October 5, 1979.

In response to a rule to show cause why this appeal should not be dismissed, appellant argued in essence the judgment is a nullity because he was never properly cited to appear for the hearing at which the increase was granted, nor was he notified of the judgment.

On February 20, 1979, Joseph Verrett filed a petition to nullify this judgment, alleging, among other things that his wife’s attorney had knowingly served his former attorney after being told by that attorney he no longer represented Verrett nor would he be responsible for accepting service. After an answer to the nullity suit was filed, Verrett moved for summary judgment which would have declared the judgment now before us a nullity had it been granted. Instead, on May 3, 1979, the trial court not only denied the motion, but also dismissed plaintiff’s nullity suit.

Thereafter, Mr. Verrett moved for a new trial and by judgment dated October 31, 1979, the motion was denied. In resisting dismissal of this appeal, appellant also urges there is confusion in the proceedings in the nullity action. However, that judgment has never been appealed and is therefore not before us.

Code of Civil Procedure Article 3943 provides an appeal from an alimony judgment must be taken within the same delays specified in C.C.P. Art. 3942, which is thirty days from the applicable date provided in C.C.P. Art. 2087(1)-(3). As used here the term alimony includes child support awards. Matherne v. Matherne, La.App., 331 So.2d 55.

The judgment here appealed from was taken by default October 13, 1978. A copy was served on Charles White, the attorney who represented appellant in the original divorce and who never formally withdrew as attorney of record. Service of the judgment was made December 6, 1978. Although appellant stated he was not notified of this judgment at the time it was served, we do know from the record that he obtained a copy thereof on or before February 20, 1979, the date he filed the action in nullity.

The Supreme Court has held that service on an attorney of record is valid until the time that attorney files a motion to withdraw. Imperial v. Hardy, La., 302 So.2d 5. But assuming arguendo the facts of this case are distinguishable, we would still dismiss the appeal as untimely. Were we to compute delays from February 20,1979, the appeal would have had to be perfected no later than March 31, 1979.

Filing a petition for nullity did not have the effect of extending the period within which an appeal could be perfected. An action for nullity is not a substitute for a timely appeal. Southern Wheel & R. Serv., Inc. v. Champion M. W., Inc., La.App., 283 So.2d 328. It would have been possible for Mr. Verrett to appeal the judgment increasing the award and at the same time maintain a separate action in nullity, which is a remedy independent of any other. Schoen v. Burns, La.App., 321 So.2d 908.

Once judgment was rendered in the nullity action dismissing Verrett’s petition that judgment also could have been appealed. None was taken.

Accordingly, we dismiss this appeal as untimely.

APPEAL DISMISSED.