text:
    Clarence Joseph MUSZYNSKI, Appellant, v. STATE of Florida, Appellee.
    No. 79-126.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.

      Richard L. Jorandby, Public Defender, and Bruce Zeidel, Asst. Public Defender, West Palm Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and Evelyn D. Golden, Asst. Atty. Gen., Dayto-na Beach, for appellee.
   SHARP, Judge.

Muszynski was charged by indictment with first degree murder based upon premeditation, first degree murder based upon the felony murder rule, robbery with a firearm, theft of a motor vehicle, and aggravated battery. The jury found him guilty on the respective counts, of second degree murder, first degree murder, robbery with a firearm, theft of a motor vehicle, and aggravated battery. The trial judge adjudicated Muszynski guilty of the crimes for which he was convicted, and sentenced him to life imprisonment, with the provision he serve no less than 25 years. We find no merit to the points raised on appeal by the appellant: that the court erred in failing to suppress his confession, in denying his motion for judgment of acquittal, and in failing to give the instructions requested by appellant’s counsel. However, fundamental error occurred in this case, which despite appellant’s failure to raise objections at trial and on appeal necessitates our partial reversal and remand for correction of the sentence.

The evidence showed that Muszynski and his female companion were hitchhiking and were picked up by Chris Bater, the victim. After driving some distance Bater stopped the car along the highway at Muszynski’s request. Bater and Muszynski got into a fight and in a struggle for possession of Muszynski’s gun, both men were shot. Muszynski severely beat Bater over the head with the gun and Bater later died from the injuries. Muszynski and his female companion then fled in Bater’s automobile and were later apprehended by the police.

The fundamental error in this case was not in charging Muszynski with inconsistent counts, which the state clearly may do, but in submitting to the jury a verdict form which allowed it to return verdicts on inconsistent counts. Fla.R.Crim.P. 3.505.

There was only one homicide in this case, and therefore, there can be only one murder conviction. Thomas v. State, 380 So.2d 1299 (Fla. 4th DCA 1980); Brown v. State, 371 So.2d 161 (Fla.2d DCA 1979); Phillips v. State, 289 So.2d 769 (Fla.2d DCA 1974). The jury convicted Muszynski of first degree murder under the felony murder rule and of second degree murder, not having found “premeditation.” There was sufficient evidence to sustain both convictions. We therefore uphold the conviction for the more serious crime, first degree murder, and vacate the second degree murder conviction. Hobbs v. State, 371 So.2d 722 (Fla. 1st DCA 1979).

Similarly, the aggravated battery count was a lesser included offense of the murder. Appellant should not have been convicted of aggravated battery when he was found guilty of the murder. Accordingly, we must vacate that conviction.

Further, the robbery count cannot stand independently because the felony murder count was based on robbery as the underlying felony. State v. Pinder, 375 So.2d 836 (Fla.1979); State v. Wright, 379 So.2d 96 (Fla.1979); Harkins v. State, 380 So.2d 524 (Fla. 5th DCA 1980); Hegstrom v. State, 388 So.2d 1308 (Fla.3d DCA 1980). Appellant’s conviction on that count is also vacated.

In summary, we affirm appellant’s convictions of first degree murder and theft of a motor vehicle. We vacate the convictions of second degree murder, robbery and aggravated battery because they are necessarily included in the felony murder conviction. We remand this cause to the trial court for the purpose of resentencing the appellant in a manner consistent with this opinion.

REVERSED in part and REMANDED.

DAUKSCH, C. J., and COBB, J., concur.

      . Sanford v. Rubin, 237 So.2d 134 (Fla.1970); Bashans v. State, 388 So.2d 1303 (Fla. 1st DCA 1980).

      . Austin v. State, 40 So.2d 896 (Fla.1949).

      . Foster v. State, 286 So.2d 549 (Fla.1973); Bruton v. State, 326 So.2d 186 (Fla. 4th DCA 1975); Brown v. State, 317 So.2d 145 (Fla.2d DCA 1975).

      . See Brown v. State, 206 So.2d 377 (Fla.1968).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    YELLOW CAB COMPANY OF ORLANDO, Appellant, v. FLORIDA DEPARTMENT OF LABOR AND EMPLOYMENT SECURITY, Unemployment Appeals Commission, and Duane A. Johnson et al., Appellees.
    Nos. 79-97, 79-103 to 79-107 and 79-109.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    Thomas M. Gonzalez of Shackleford, Far-rior, Stallings & Evans, P.A., Tampa, for appellant.
    Dana C. Baird, Staff Counsel, and James R. Parks, General Counsel, Tallahassee, for appellees.
   PER CURIAM.

AFFIRMED.

See Justice v. Belford Trucking Co., Inc., 272 So.2d 131 (Fla.1973); Cantor v. Cochran, 184 So.2d 173 (Fla.1966). See also City Cab Co. of Orlando, Inc. v. NLRB, 628 F.2d 261 (D.C.Cir.1980).

DAUKSCH, C. J., and COBB and OR-FINGER, JJ., concur.


text:
    Edward L. GOODPASTER, Appellant, v. Nancye S. GOODPASTER, Appellee.
    No. 79-182/T4-378.
    District Court of Appeal of Florida, Fifth District.
    Jan. 7, 1981.
    Edward A. Nagel, Winter Park, for appellant.
    James K. Freeland, Orlando, for appellee.
   PER CURIAM.

AFFIRMED on the authority of Ball v. Ball, 335 So.2d 5 (Fla.1976).

COBB, FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.


author: NESBITT, Judge.

text:
    Marie J. KLEINSCHMIDT, Appellant, v. ESTATE of Edward E. KLEINSCHMIDT, Deceased, Appellee.
    No. 80-1926.
    District Court of Appeal of Florida, Third District.
    Jan. 7, 1981.
    Marie J. Kleinschmidt, in pro. per.
    Blackwell, Walker, Gray, Powers, Flick & Hoehl and James E. Tribble, John H. Gerken, III, Miami, for appellee.
    Before HUBBART, C. J., NESBITT, J., and MELVIN, WOODROW M. (Ret.), Associate Judge.
   On Motion to Dismiss

NESBITT, Judge.

On its own initiative, this court entered an order directing that the instant appeal be dismissed unless the appellant paid filing fees required by Florida Rule of Appellate Procedure 9.110(b). Appellant then procured an order from the trial court authorizing an appeal without payment of fees or costs under the procedure authorized by Florida Rule of Appellate Procedure 9.430. A certified copy of that order together with the moving papers and affidavit have now been filed before this court. Consequently, we withdraw our order and authorize appellate review without the payment of costs or fees with the following observation.

Florida Rule of Appellate Procedure 9.430 provides:

A party who has the right to seek review without payment of costs shall file a motion in the lower tribunal, with an affidavit showing his inability to pay fees and costs or to give security therefor. If the . motion is granted, the party may proceed without further application to the court and without prepayment of fees or costs in either the lower tribunal or the court or the giving of security therefor. If the motion is denied, the lower tribunal shall state in writing the reasons therefor. Review shall be by motion filed in the court.

As the rule recites and the committee note indicates, its purpose is not to expand the substantive right of an indigent to an appeal but merely to provide a vehicle for enforcement of the right. Consequently, we must look beyond the rule to ascertain if the order authorizing appellate review is grounded upon a substantive right for the appellant to proceed here as an indigent. In that regard, we note that Chapter 80-348, Laws of Florida, amended Section 57.-081(1), Florida Statutes (1979) so as to provide:

(1) Any indigent person who is a party or intervenor in any judicial or administrative agency proceeding or who initiates such proceeding shall receive the services of the courts, sheriffs, and clerks, with respect to such proceedings, without charge. No prepayment of costs to any judge, clerk, or sheriff is required in any action when the party has obtained a certification of indigency from the clerk in each proceeding, based on an affidavit filed with him that the applicant is indigent and unable to pay the charges otherwise payable by law to any of such officers. When the person is represented by an attorney, the affidavit shall be supported by a written certificate signed by the attorney representing the person that he has made an investigation to ascertain the truth of the applicant’s affidavit and that he believes it to be true; that he has investigated the nature of the applicant’s position and that in his opinion it is meritorious as a matter of law; and that he has not been paid or promised payment of any remuneration for his service and intends to act as attorney for applicant without compensation. On the failure or refusal of the clerk to issue a certificate of indigency, the applicant is entitled to a review of his application for the certificate by the court having jurisdiction of the cause of action, [emphasis supplied].

By the amendment, the Legislature has authorized an indigent person to procure the services of judges, clerks, and sheriffs in any judicial proceeding. Black’s Law Dictionary, Fifth Edition, defines a proceeding as:

In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment.

We perceive that one of the purposes of the recent amendment was to authorize the right to appellate review by an indigent person. The term “proceeding,” used in the amended statute, is more encompassing than the term “actionable claim or demand” found in the former statute. McGriff v. McGriff, 392 So.2d 914 (Fla.3d DCA 1980); Lee v. City of Winter Haven, 386 So.2d 268 (Fla.2d DCA 1980).

Consequently, we find the Legislature has partially abrogated our decision in Bower v. Connecticut General Life Insurance Company, 347 So.2d 439 (Fla.3d DCA 1977) where we held that Section 57.081(1), Florida Statutes (1975) did not authorize “subsidized” appellate review to an indigent person. In Bower v. Connecticut General, supra, we also observed that Section 57.081(1), Florida Statutes (1975) did not authorize an indigent person gratuitous services of a court reporter for transcribing trial court proceedings. In the present case, there is no issue before us concerning a court reporter’s transcript of any trial court proceeding. Consequently, we expressly do not undertake to resolve that problem.

With the foregoing observations, the appeal is allowed without prepayment of costs and fees.

MELVIN, WOODROW M. (Ret.), Associate Judge, concurs in judgment only.

      . § 35.22(3), Fla.Stat. (1979).

      . See also Harrell v. State Department of Health and Rehabilitative Services, 361 So.2d 715 (Fla.4th DCA 1978) for a discussion of this problem in relation to appeals stemming from administrative agency action.


author: ELLIS, Judge:

text:
    BAMBER CONTRACTORS, INC. v. HENDERSON BROS., INC. and McLeod Bros. Contractors.
    No. 13303.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Gordon A. Pugh, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff.
    James E. Kuhn, Fayard, Morrison, & Kuhn, Denham Springs, for Henderson Bros., Inc.
    Michael W. Lee, Livingston, Louis D. Bishop, Jr., DeQuiney, for McLeod Bros.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

Defendants have moved to dismiss plaintiff’s appeal because not timely filed. Judgment was signed herein on July 17, 1979, and notice thereof was sent to all parties on July 18,1979. Plaintiff appealed on September 25, 1979.

The legal delay for applying for a new trial began to run on July 19th, a Thursday, and ended on July 27, 1979, a Friday. The 60-day legal delay for appealing began to run on the next day, July 28, 1979, a Saturday. The 60th day thereafter was September 25, 1979, the day on which plaintiff’s appeal was taken.

The appeal is therefore timely and the motion to dismiss is denied at defendants’ cost.

MOTION DENIED.


author: CHIASSON, Judge.

text:
    BAMBER CONTRACTORS, INC. v. HENDERSON BROTHERS, INC. et al.
    No. 13303.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.

      Gordon A. Pugh and Charles W. Lamar III, Breazeale, Sachse & Wilson, Baton Rouge, for plaintiff-appellant.
    James E. Kuhn, Fayard, Morrison, & Kuhn, Denham Springs, for defendant-ap-pellee.
    Michael W. Lee, Livingston, Louis D. Bishop, Jr., De Quincy, for McLeod Bros.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Plaintiff-appellant, Bamber Contractors, Inc., appeals the trial court’s denial of its redhibitory action against defendants-ap-pellees, Henderson Brothers, Inc. and McLeod Brothers Contractors.

Appellant purchased a used eight year old Caterpillar DC-6 Crawler tractor, Serial No. 10K-588, owned by McLeod Brothers Contractors at an auction sale conducted by Henderson Brothers, Inc. Appellant operated this equipment for 359 hours before major repairs were needed. Appellant contends that the mechanical problems he had with the transmission, the torque converter and the steering clutches, which manifested themselves within the first 13’A hours of operation, constitute redhibitory defects and seeks a reduction in the purchase price of the equipment.

Appellant paid $26,512.56 for the DC-6 Crawler to Henderson on September 4, 1975. On March 23, 1976, appellant was informed of the needed repairs which were subsequently performed at the cost of $17,-000.00. The tractor was thereafter sold at another auction for $26,500.00.

The facts as established by the record are that appellant picked up the Caterpillar tractor on September 20,1975 and hauled it to a jobsite in Denham Springs where the fuel and oil levels in the tractor were checked. Appellant at this time discovered that the oil in the transmission was black and therefore dirty, but made no effort to change it. Two days thereafter appellant used the tractor to spread dirt for three and a half (3V2) hours during which time it performed satisfactorily. Upon its next use on October 2,1975, the tractor operated for ten (10) hours without any problems and then a slippage in the transmission developed. To remedy this problem, appellant changed the transmission oil and filter.

Thereafter, appellant continued to use the tractor finding its operation to be completely normal with the exception that from time to time, after several hours of operation, that the transmission control lever would jump out of gear. Appellant’s employees would continue to operate the tractor in this condition until it would overheat and quit running. After operating the tractor for one hundred (100) hours in this manner, appellant had a mechanic check the tractor on November 12, 1975. The mechanic did not testify, but the invoice reflected that the transmission oil pump was replaced at this time. Another invoice dated February 24, 1976, indicates that the transmission oil pump was again replaced along with a scavenger pump for the torque converter. On March 23, 1976, a mechanic advised appellant the tractor would have to be transported to the shop for repairs. The transmission was completely dismantled at the shop and the service manager, Mr. Simmons, reported to appellant that, “the repairs needed on your machine are evident of long normal wear.” Mr. Simmons was recognized by the trial court as an expert and testified that if such a piece of machinery were to get hot and the transmission began slipping, the continued operation of the equipment under these conditions would likely result in substantial damage to the transmission.

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold. La.C.C. art. 2520. Whether the defect in the thing sold renders it useless or merely diminishes its value, the buyer may limit his demand to the reduction of the price. La.C.C. art. 2541. Plaintiff in a redhibitory action must prove that the vice or defect existed before the sale was made to him. La.C.C. art. 2530.

The warranty created by La.C.C. arts. 2475 and 2476 against redhibitory defects applies to the sale of used equipment. Hellman v. Comeaux, 353 So.2d 407 (La.App. 4th Cir. 1977).

The warranty against redhibitory defects in sales of used equipment is not as extensive as in sales of new equipment but it does require that the equipment operate reasonably well for a reasonable period of time. Hob’s Refrigeration & Air Conditioning, Inc. v. Poche, 304 So.2d 326 (La.1974); Richardson v. French, 253 So.2d 602 (La.App. 2nd Cir. 1971).

We concur with the trial judge’s holding that appellant failed to meet its burden of proof. Appellant failed to establish by a preponderance of the evidence that a vice or defect existed before or at the time of the sale. The showing that major repairs were needed some six (6) months and 359 hours of operation after the sale cannot be related back to the date of the sale from the record before us. This is especially true in view of the evidence of improper maintenance and abuse of the equipment by appellant for an extended period of time after the sale.

For the foregoing reasons the judgment of the trial court is affirmed at appellant’s costs.

AFFIRMED.


author: SARTAIN, Judge. PER CURIAM.

text:
    Gilbert POYDRAS et al., Plaintiff-Appellant, v. Edison PARKER et al., Defendant-Appellee.
    No. 12993.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.

      Charles Rea, Baton Rouge, for plaintiffs-appellants Gilbert Poydras and Hartford Ins. Co.
    C. Alvin Tyler, Frank H. Dickinson, III, Baton Rouge, for defendant-appellee Edison Parker.
    Herman Clark, in pro. per.
    Before EDWARDS, LEAR and SAR-TAIN, JJ.
   SARTAIN, Judge.

In this suit under the subrogation provisions of a policy of fire insurance, the issue presented relates to the liability of an employer for the acts of an employee which caused the partial destruction of a structure. From a judgment absolving the employer of any liability, the insurer has appealed. We reverse in part and render.

Gilbert Poydras, the owner of the premises, secured a policy of fire insurance from Hartford Fire Insurance Company (Hartford.) The building was leased to Edison Parker, where he operated a business known as Parker’s Used Auto Parts. The fire was started by Herman Clark, an employee of Parker, when he endeavored to burn some paper and other debris in a barrel located behind the leased premises. The fire spread and caused extensive damage to the building. Poydras and Hartford sought judgment against both Parker and Clark.

The trial judge held that inasmuch as Clark burned the trash contrary to Parker’s express instructions, his conduct in doing so placed him beyond the course of his employment. Judgment was therefore rendered only against the employee, Clark. Since Clark has neither appealed nor answered the appeal, the judgment as to him is final.

The facts which are not in dispute are as follows: Clark had been in Parker’s employment for about two and one-half years prior to the fire. His primary duties were to dismantle, clean and shelve used automobile motors. He also assisted in keeping the premises clean. On two occasions prior to the instant fire, Clark had set fire to trash and debris he had collected and on each occasion he was told by Parker not to burn it.

On the day of the fire giving rise to this suit, Clark testified that when he carried the trash out to the barrel it was filled to capacity and since he had no other place to dispose of it he decided to burn the trash that was already in the barrel. He gave no further explanation for his acts and admitted that on the two previous occasions noted above Parker had told him not to burn trash near the premises.

Parker testified that it was not necessary for Clark to burn the trash because he had another party who came by every two or three weeks to pick up the accumulation of trash and debris. His admonition to Clark concerning the burning of trash on the premises was based on his (Parker’s) concern about fire.

Vicarious liability in Louisiana is imposed under the provisions of C.C. article 2320. Its applicability is often determined on the basis of the scope of one’s employment. Generally speaking, an employee is expected to adhere to his employer’s rules and regulations and his failure to do so may, under certain circumstances, negate vicarious liability on the part of the employer. However, the mere fact that an employee’s conduct is contrary to his employer’s express directions, rules or wishes is not conclusive of the issue of scope of employment. Normand v. City of New Orleans, 363 So.2d 1220 (La.App. 4th Cir. 1978); Bordelon v. Great American Indemnity Company, 124 So.2d 634 (La.App.3d Cir. 1960).

In Bordelon v. Great American Indemnity Company, above, the court, quoting from 57 C.J.S. § 570, verbo Master and Servant, stated:

“ ‘The test of the master’s responsibility for the acts of his servants is not whether such act was done in accordance with the instructions of the master to the servant, but whether it was done in the prosecution of the business that the servant was employed to do, and an act is regarded as “authorized” in the legal sense if it is incidental to the performance of the duties entrusted to the servant even though it is in disobedience of the master’s express orders and instructions.’ ” 124 So.2d 634, 638.

Other factors include whether the actions of the employee transpired substantially within the authorized limits of time and space and were undertaken, at least in part, with an intent to serve the employer. Prosser, Torts, ¶ 70 (4th Ed. 1971).

The policy of vicarious liability and particularly the purpose and intent of C.C. art. 2320 are to place upon the master the responsibility of the servant’s misconduct in the scope of the master’s business.

In the instant case, we are satisfied that Clark was performing services during the course of his employment with the intent of benefiting his employer. Notwithstanding the fact that for some two and one-half years he had endeavored to and on three occasions did burn trash on the premises, he remained in the employ of Parker and was still so employed on the date of the trial on the merits. While his actions in starting the third fire were contrary to his employer’s wishes, they undoubtedly did not justify or precipitate his dismissal. Under these circumstances, we do not find that his (Clark’s) conduct on the last occasion was such a deviation from his duties as to place him beyond the scope of his employment.

For these reasons, the judgment of the district court dismissing plaintiff’s suit against Edison Parker is reversed and set aside and judgment is rendered herein in favor of Gilbert Parker and Hartford Fire Insurance Company and against Edison Parker and Herman Clark, jointly and in solido, in the sum of $1114.74, together with legal interest thereon from date of judicial demand, until paid, and for all costs of these proceedings. In all other respects, the judgment of the district court is affirmed.

REVERSED IN PART, AFFIRMED IN PART AND RENDERED.

ON REHEARING

PER CURIAM.

We granted a rehearing in this matter, limited to the issue of damages, to correct what is asserted by Hartford in its application for rehearing to be an obvious typographical error.

The trial judge, in his oral reasons for judgment, determined the damages to be in the sum of $5,114.74. However, the minutes of the trial court show this sum to be $1,114.74. Judgment was later signed in the latter amount. The plaintiffs appealed and this error was not called to our attention. In its application for rehearing plaintiffs contend that the defendants now acknowledge the error.

Accordingly, our original judgment is amended by the increasing the award to $5,114.74 and as amended is reinstated for the reasons therein expressed.

ORIGINAL DECREE AMENDED AND AS AMENDED REINSTATED.

      . Art. 2320. Acts of servants, students or apprentices.
      Art. 2320. Masters and employers are answerable for the damages occasioned by their servants and overseers, in the exercise of the functions in which they are employed.
      Teachers and artisans are answerable for the damage caused by their scholars or apprentices, while under their superintendence.
      In above cases, responsibility only attaches, when the masters or employers, teachers and artisans, might have prevented the act which caused the damage, and have not done it.


author: EDWARDS, Judge.

text:
    Elnora Tate PERRY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY. Elnora Tate PERRY v. Randy J. LAW et al.
    Nos. 13046, 13083.
    Court of Appeal of Louisiana, First Circuit.
    June 9, 1980.
    Rehearing Denied Oct. 6, 1980.
    W. Hugh Sibley, Greensburg, for plaintiff in No. 13046.
    Horace C. Lane, Baton Rouge, for defendants in No. 13046.
    Iddo Pittman, Jr., Hammond, for Randy J. Law and State Farm Mut. Auto. Ins. Co.
    Paul H. Due, Baton Rouge, for Elnora Tate Perry.
    William V. Courtney, Covington, for Mrs. Constance Law.
    Before EDWARDS, LEAR and GREENE, JJ.
   EDWARDS, Judge.

Defendant-appellant, State Farm Mutual Automobile Insurance Company, seeks reversal of a trial court judgment casting it in damages and awarding interest, attorney’s fees and costs to the plaintiffs.

Three exhaustive readings of the entire record, together with a careful review of all the applicable law, convince us that the trial court judgment was correct. We adopt the trial court’s findings of fact and reasons for judgment as our own.

For the foregoing reasons, the trial court judgment is affirmed. All costs of these proceedings, both trial and appellate, are to be paid by State Farm Mutual Automobile Insurance Company.

AFFIRMED.

Writ Refused, 394 So.2d 277.


author: PONDER, Judge:

text:
    Luella Martin NOLES v. GULF COAST AERIAL MAPPING CO.
    No. 13640.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1980.
    Margaret Restucher, Capital Area Legal Services, Baton Rouge, for plaintiff-appellant Luella Martin Noles.
    Paul M. Hebert, Jr., Baton Rouge, for defendant-appellee Gulf Coast Aerial Mapping Co.
    Willie D. Maynor, Office of Employment Sec., Baton Rouge, for defendant-appellee State of Louisiana, Dept, of Labor, Office of Employment Sec.
    Before LOTTINGER, EDWARDS and PONDER, JJ.
   PONDER, Judge:

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: WATKINS, Judge.

text:
    ROYAL AMERICAN CORPORATION v. REPUBLIC SECURITIES CORPORATION et al.
    No. 13841.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 4, 1980.
    Bruce Kingsdorf, New Orleans, for plaintiff-relator.
    Frederick Kroenke, Jr., and Wm. C. Shockey, Baton Rouge, for respondents.
    Before EDWARDS, LEAR and WATKINS, JJ.
   WATKINS, Judge.

This is an action on a promissory note in the amount of $350,000 of which “Charest Thibaut, Jr., and C. Therral Ransome, individually and as Agent and Attorney-in-Fact” (to quote plaintiff’s petition) were makers and Royal American Corporation, plaintiff, was payee. Defendants answered separately and each filed a reconventional demand.

In discovery proceedings, defendants took the deposition of Rolfe H. McCollister and sought to take the deposition of Simeo Gallo, the latter of whom was president of plaintiff corporation. In the course of Gallo’s deposition, counsel for plaintiff instructed him not to answer several questions asked by defendants’ counsel, and Gallo, following counsel’s instructions, failed to answer them. Defendants proceeded by rule to attempt to compel Gallo to answer the questions. In oral reasons for judgment, the lower court ordered Gallo not to answer the questions. Defendants applied for alternate writs of mandamus, certiorari and prohibition, which this Court granted. We make the writs peremptory, and order Gallo to answer the following questions, and any other question which pertains to the subject matter of the questions propounded.

The following questions were propounded and not answered:

“BY MR. KINGSDORF:
“Q Were you aware in 1974 or are you aware now that Rolfe McCollister; Donald Hayden; Clifford Ourso, Jr.; and George McNutt each received $25,000.00 for the purchase of whatever interest they might have had in the option to purchase stock executed December 14, 1972?
“Q Do you feel that you should have been apprised of that fact?
“Q Are you aware of where the money came from to pay these four individuals for the option?
“Q Are you aware of what each of these individuals might have done to deserve $25,000.00 each for the purchase of this option?
“Q Do you know who handled the negotiations for the purchase of this option agreement?
¡“Q Do you feel that you should have been consulted relative to the purchase of this option in that you were President of Royal American Corporation?
“Q Do you feel that the stockholders of Royal American Corporation should have been informed that several of their directors had received payment for purchase of an option bought on December 14, 1972, by Donald Hayden and Roy LeBouef acting on behalf of several directors of Royal American Corporation?”

The scope of discovery is stated as follows in LSA-C.C.P. art. 1422:

“Unless otherwise limited by order of the court in accordance with this Chapter, the scope of discovery is as set forth in this Article and in Articles 1423 through 1425.
“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of any discoverable matter. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Thus, not only may discovery be had of any matter not privileged which is relevant to the subject matter involved in the pending action, but any matter even if inadmissible at trial which appears reasonably calculated to lead to the discovery of admissible evidence.

The discovery rules of our state are to be liberally construed in favor of freedom of discovery. As was stated in Succession of Norton, 351 So.2d 107 (La.1977):

“One of the basic notions relative to a court’s interpretation of our rules on discovery is that these rules should be liberally construed in favor of discovery wherever possible. Any issue of relevancy is necessarily dependent upon the surrounding circumstances and legal framework within which the issue is presented.” (351 So.2d 107, 111)

We have thoroughly reviewed the record as it stands at the present stage, after issue has been joined but before trial on the merits, and conclude at the very least the answers to the questions propounded may lead to the discovery of admissible evidence. As the pleadings stand, it appears there were at least two option agreements, interests in one of which were purchased contemporaneously with the execution of the note sued upon and to which the note sued upon may have been directly related, both as to the consideration given and as to Ransome’s representation of himself as agent and attorney in fact for a certain unnamed party or certain unnamed parties. For that reason, we believe that the questions propounded, and all related questions upon the same subject matter, must be answered.

It is so ordered, and the alternate writs of mandamus, certiorari and prohibition are made peremptory. All costs shall await a final determination on the merits.

WRIT MADE PEREMPTORY.


author: WATKINS, Judge:

text:
    Leo TERREBONNE et ux. v. T. G. & Y. STORES CO. et al.
    No. 13554.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 8, 1980.
    Edward T. Diaz, Carlton J. Cheramie, Golden Meadow, for plaintiffs-appellees Leo Terrebonne & Mrs. Leo Terrebonne.
    Nan M. Landray, of Landry, Watkins & Bonin, New Iberia for defendant-appellant T.G. & Y. Stores Co.
    Philip J. McMahon, of McMahon & McCol-lam, Houma, for defendants-appellees La-fourche Shopping Center, Inc. and The Travelers Insurance Co.
    Before ELLIS, COLE and WATKINS, JJ.
   WATKINS, Judge:

This appeal was fixed for argument and all attorneys of record were notified. At the time scheduled for argument, the appellant was not present or represented, nor had any brief been filed on behalf of appellant, nor had any motion been filed for continuance.

On authority of Rule VII, Section 5(b), this Court, EX PROPRIO MOTU, considers this appeal as abandoned; therefore, it is ordered that this appeal be dismissed with prejudice.

APPEAL DISMISSED.


author: PER CURIAM. COVINGTON and LOTTINGER, Judges,

text:
    Jewel J. NEWMAN v. CITY OF BATON ROUGE et al.
    No. 14003.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 10, 1980.

      Freddie Pitcher, Jr., Donald R. Avery, Baton Rouge, for plaintiff-appellee Jewel J. Newman.
    A. Foster Sanders, III, Baton Rouge, for defendant intervenor Edgar L. Watts, Jr.
    Walter G. Monsour, Jr., Parish Atty., Larry S. Bankston, Asst. Parish Atty., Baton Rouge, for defendants-appellees, City of Baton Rouge Democratic Executive Committee, Larry Bankston, Chairman Board of Supervisors of Elections, Nathaniel Bank-ston, Chairman Board of Supervisors of Elections, H. M. “Mike” Cannon, Secretary and in his official capacity as E. B. R. Parish Clerk of Court.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, for defendant-appellee, State of Louisiana, James H. “Jim” Brown, Sec. of State.
    Before ELLIS, COVINGTON, LOTTINGER, EDWARDS and PONDER, JJ.
   PER CURIAM.

Plaintiff, Jewel J. Newman, has filed suit seeking judgment declaring the September 13, 1980 primary election for Councilman for Ward One, District One for the Parish of East Baton Rouge violative of his rights under the Constitution of the State of Louisiana, and for injunctive relief enjoining the conducting of the September 13 election for Councilman for Ward One, District One.

Plaintiff, Newman, is the incumbent councilman from Ward Two, District Two, and was a resident thereof on April 23, 1980. On that date the area in which plaintiff lives (a part of Ward Two, District Two) was annexed to the City of Baton Rouge and merged with that of Ward One, District One. The following day April 24, the City submitted the annexation to the United States Department of Justice for their review under the Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. The Department of Justice requested additional information on June 12, which information was forwarded by the City on July 2. On August 25, 1980, the City was notified by the Justice Department of no objection to the annexation.

Qualification for the councilmanic offices as fixed by state law, La.R.S. 18:402, was held from July 7 to and including July 11, 1980. The plaintiff qualified for the council seat for Ward Two, District Two in accordance with the residency requirements of the Plan of Government for the Parish of East Baton Rouge as well as the Louisiana Election Code. La.R.S. Title 18.

Subsequent to his qualification of his candidacy and the no objection by the Justice Department on August 25, plaintiff filed this suit on September 2. Named as defendants are: The City of Baton Rouge, The Democratic Executive Committee of the Parish of East Baton Rouge, The Board of Supervisors of Elections for East Baton Rouge Parish, James H. “Jim” Brown in his capacity as Secretary of State of Louisiana, and J. M. “Mike” Cannon, Clerk of Court, East Baton Rouge Parish.

The City of Baton Rouge filed an exception of no cause of action which was overruled, but the City was subsequently dismissed as a party defendant. The Democratic Executive Committee for the Parish of East Baton Rouge was also dismissed as a defendant.

Edgar L. Watts, Jr., the incumbent councilman for Ward One, District One and who qualified for re-election, intervened and filed an exception of res judicata arguing that plaintiff had filed suit in the United States District Court for the Middle District of Louisiana raising the same issues.

The judgment of the trial court in part provides:

“The defendants, The Board of Supervisors of Elections for East Baton Rouge Parish, Louisiana, J. M. Mike Cannon, Clerk of Court for 19th Judicial District Court, East Baton Rouge Parish, Louisiana and James H. ‘Jim’ Brown, Secretary of State, State of Louisiana áre enjoined from promulgating and certifying the election returns of September 13,1980 for the seat of Councilman of Ward One, District One for the City of Baton Rouge, Louisiana. Further, the Court orders that the defendants reopen the qualifying dates of Ward One, District One for any party before this Court. That qualifying date shall be Wednesday, September the 7th through Friday, September the 19th at 5:00 P.M. and Mike Cannon, Clerk of Court for the Parish of East Baton Rouge, is ordered to give notice as required by R.S. 18:469C to the new qualifying time. Further, the ■ Court orders that if a party before the Court qualifies during this limited time that the Court has mentioned, then the primary election shall be conducted and coincide with the general election on November 4, 1980. Thereafter, if a general election for the seat of Ward One, District One is necessary, it should be held on the sixth Saturday after the primary date namely December 13, 1980. It is further ordered that if none of the parties before the Court qualifies during the period of September 17th through September 19th, 1980, then the Board of Supervisors of Elections for East Baton Rouge Parish, State of Louisiana, and Mike Cannon, Clerk of Court for the 19th Judicial District Court, Parish of East Baton Rouge, are ordered to promulgate and certify the votes of September 13, 1980, for councilman of Ward One, District One to the Secretary of State, State of Louisiana. This injunction shall be a permanent injunction inasmuch as the parties have agreed that further hearings would be of no avail and shall issue without Jewel J. Newman’s posting of a bond.
“The intervention of Edgar L. Watts, Jr. is granted but the relief sought is denied.”

Our election code provides for only two instances in which qualifying can be reopened: when a candidate dies after the close of the qualifying period and when no candidate or too few candidates have qualified for a position. R.S. 18:469. Neither of these situations exist in this case.

What plaintiff would have us do is enjoin an election for an office for which he was not qualified during the qualifying dates, because he now wishes to run for that office. He has already qualified to run for a position which he now holds, and for which he remains eligible to run and which he may continue to hold by moving his residence to the new District Two. McCarter v. Broom, 377 So.2d 383. (La.App. 1st Cir. 1979). If we were to grant plaintiff’s prayer, we would not only have to enjoin the election in Ward One, District One and Ward Two, District Two, but would have to open qualifying to all those situated similarly to plaintiff. R.S. 18:469(D).

Plaintiff is unable to point to any specific provision of law which entitles to him to the relief sought, other than vague references to principles of fairness and due process of law.

We therefore find that the dictates of the orderly electoral process must prevail over plaintiff’s desire to run for Councilman for Ward One, District One, absent any specific legal basis for the relief sought.

The judgment appealed from is reversed, and there will be judgment herein dismissing plaintiff’s suit at his cost.

REVERSED AND RENDERED.

COVINGTON and LOTTINGER, JJ., dissent and assign written reasons.

COVINGTON and LOTTINGER, Judges,

dissenting.

In Rich v. Martin, 259 So.2d 113 (La.App. 1st Cir. 1971), writ refused 261 La. 313, 259 So.2d 336 (1971), and reaffirmed in McCarter v. Broom, 377 So.2d 383 (La.App. 1st Cir. 1979), writ refused October 9, 1979, this Court said:

“The basic policy of our form of government requires that laws governing the conduct of elections be liberally interpreted to promote rather than defeat candidacy.”

Because of the delay of the Justice Department, acting under the authority of the Voting Rights Act of 1965, in promptly giving its approval to the proposed annexation, plaintiff was during the period of qualification in a Catch-22 situation. At the time of qualification he lived in Ward 2, District 2, and therefore properly qualified to seek office therein. Now, following governmental action, his residency has been changed to Ward 1, District 1.

Under the guise of stability of elections, the majority has disqualified plaintiff and others like situated from being candidates for the councilmanic seat for Ward 1, District 1, because they did not qualify for said seat when at the time of qualification they did not meet the requirements of law to qualify.

The proper and equitable solution would be for this Court to enjoin the voting commissioners from counting and reporting the votes cast in favor of the candidates for the councilmanic seats in Ward 1, District 1 and Ward 2, District 2, and that qualification be reopened in both Districts without restriction as to whether a candidate had previously qualified as a candidate or not.

Therefore, for the foregoing reasons, we respectfully dissent.


text:
    Quenton BROWN v. C. Paul PHELPS, Secretary of Corrections and Frank Blackburn, Warden, Louisiana State Penitentiary.
    No. 13805.
    Court of Appeal of Louisiana, First Circuit.
    Sept. 19, 1980.

      J. Marvin Montgomery, Asst. Atty. Gen., and Mary Catherine Cali, Staff Atty., Baton Rouge, for appellant.
    Quenton N. Brown, in pro. per.
    Before ELLIS, CHIASSON and PONDER, JJ.
   ELLIS, Judge:

We granted a writ herein to review the propriety of a ruling by the trial judge, overruling an exception to the jurisdiction or venue of his court.

Relator, Quenton N. Brown, filed this proceeding, styled a “Petition for Writ of Habeas Corpus Ad Testificandum,” seeking review of an administrative adjudication as a result of which certain sanctions were imposed. Since the proper procedure for judicial review of an administrative adjudication is begun by filing a petition for review in the appropriate district court, R.S. 49:964, the trial judge properly treated the petition filed as such an application, despite the title placed thereon by Mr. Brown. State ex rel. Armistead v. Phelps, 365 So.2d 468 (La.1978).

R.S. 49:964(B) provides as follows:

“Proceedings for review may be instituted by filing a petition in the district court of the parish in which the agency is located within thirty days after mailing of notice of the final decision by the agency or, if a rehearing is requested, within thirty days after the decision thereon. Copies of the petition shall be served upon the agency and all parties of record.”

The record indicates that the petition was mailed to the district judge on November 22, 1979. No filing stamp appears thereon, or on the supporting documents and there is no evidence of service of citation on the defendants. Under date of February 8, 1980, a writ of habeas corpus was issued to and served oh defendant, Frank Blackburn, Warden of the Louisiana State Penitentiary-

Defendants appeared in court through counsel on the date finally fixed for hearing, and orally urged a number of “objections” to the proceeding, but our examination of the record indicates that no formal pleadings or exceptions of any kind were filed.

There is nothing in the record to explain the long delay between the mailing of Mr. Brown’s pleadings and the issuance of the order. We can only assume, since these documents are in the record, that they were timely received by the court, and inadvertently overlooked thereafter.

Defendants waived citation when they consented to a continuance on March 3, 1980, thus making a general appearance in the case. Stanley v. Jones, 197 La. 627, 2 So.2d 45 (1941). No objection has been raised by Mr. Brown to the failure of defendants to file their exceptions in proper written form. All of these exceptions were made orally, and were considered and ruled on by the trial court. We therefore find that the gross deficiencies in procedure and form in this record have been waived by all parties.

Turning now to the merits of the major question presented, we note that R.S. 49:964(B), supra, requires that a petition for review of an administrative adjudication must be filed “in the district court of the parish in which the agency is located ...” R.S. 49:951(2) defines agency as follows:

“ ‘Agency means each state board, commission, department, agency, officer, or other entity which makes rules, regulations, or policy, or formulates, or issues decisions or orders pursuant to, or as directed by, or in implementation of the constitution or laws of the United States or the constitution and statutes of Louisiana, except the legislature or any branch, committee, or officer thereof, any political subdivision, as defined in Article VI, Section 44 of the Louisiana Constitution, and any board, commission, department, agency, officer, or other entity thereof, and the courts.”

R.S. 15:821.1 provides that “The domicile of the department of corrections and its divisions shall be the Parish of East Baton Rouge, city of Baton Rouge, Louisiana.”

We find that the location of an agency, under the foregoing statute, is its domicile, and that this proceeding should have been filed in the District Court of East Baton Rouge Parish. See Evers v. Louisiana State Bd. of Medical Examiners, 336 So.2d 36 (La.App. 4th Cir. 1976). The argument of the plaintiff that such an application may be made in any parish in which an office of the agency is situated is without merit. We think the legislative intent is clearly to the contrary.

The judgment of the trial court is therefore reversed, insofar as it overrules the exception to the jurisdiction or venue of the trial court and the exception is hereby maintained. The case is remanded to the trial court, with instructions to transfer the record to the Nineteenth Judicial District Court for East Baton Rouge Parish, pursuant to the provisions of Article 932 of the Code of Civil Procedure, for further proceedings according to law. Costs of this appeal shall be paid by Quenton N. Brown. All other costs shall await the final disposition hereof on its merits.

REVERSED AND REMANDED, WITH INSTRUCTIONS.


author: LEAR, Judge. WATKINS, Judge,

text:
    SUCCESSION of Salassi RICHARDSON.
    No. 13487.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 13, 1981.

      Jack M. Dampf, Baton Rouge, for defendant-appellant R. D. Richardson.
    Jonathan C. Harris, Baton Rouge, for defendant-appellant Willie Brown Richardson.
    A. Clay Pierce, Jr., Baton Rouge, for defendant-appellee Alma Francis Christy.
    Before EDWARDS, LEAR and WATKINS, JJ.
   LEAR, Judge.

Salassi Richardson, a lifelong resident of East Baton Rouge Parish, departed this life on October 30,1978, at age 80. Prior to his death, Richardson was married but once and then to Julia Alexander from whom— some say — he was divorced. Notwithstanding, the testimony establishes that she predeceased him without issue of marriage. Decedent left a number of “legitimate” relatives, the closest of which was a niece, Alma Francis Christy.

After Salassi’s death, several petitions were filed by those seeking to be named administrator. Appellant and an R. D. Richardson both alleged that each was the sole child of Salassi Richardson and, therefore, entitled to succeed to his estate. Mrs. Christy filed an opposition and a petition setting forth her claim as the sole heir by virtue of her legal status. The trial court conducted an extensive evidentiary hearing and found that Willie B. Richardson was, indeed, the acknowledged illegitimate child of Salassi Richardson. Nevertheless, it denied relief to Willie B. Richardson because of the provisions of Civil Code article 919 which provide:

“Art. 919. Illegitimate children of father
“Art. 919. Illegitimate children are called to the inheritance of their father, who has duly acknowledged them, when he has left no descendants nor ascendants, nor collateral relations, nor surviving wife, and to the exclusion only of the state.
“In all other cases, they can only bring an action against their father or his heirs for alimony, the amount of which shall be determined, as is directed in the Title: Of Father and Child. (Amended by Acts 1979, No. 607, § 1.)

The court further ruled that R. D. Richardson failed to meet the burden of proof required to establish paternity and granted judgment in favor of Alma Francis Christy, recognizing her as the sole legal heir and sending her into possession of the decedent’s estate. R. D. Richardson perfected a devolutive appeal, but he has subsequently moved for and was granted a dismissal of his appeal. The judgment below is, therefore, final as to him. Willie B. Richardson has appealed, suspensively, and we are now confronted with his constitutional challenge to article 919 of the Revised Civil Code.

Alma Francis Christy has answered the appeal of Willie B. Richardson and challenges the trial court’s finding that Willie B. Richardson is the acknowledged illegitimate son of Salassi Richardson.

In the trial court, appellant, Willie B. Richardson, adduced considerable testimony and documentary proof, substantially unrebutted, of his filiation and that he was without question the acknowledged illegitimate child of Salassi Richardson. On its findings, the trial court is given great discretion unless the record reveals manifest error. Canter v. Koehring, 283 So.2d 716 (La.1973). We are unable to find error. The argument is without merit.

Appellant’s constitutional attack on article 919 is devastating. In a scholarly exposition, he traces the history of law, morality and policy as each relates to filiation, commencing with the reign of Justinian and ending with the more recent Second Circuit Court of Appeal ruling, per Jones, which declared article 919 unconstitutional. Succession of Brown, 379 So.2d 1172 (1980), writ granted 382 So.2d 1391 (1980). Since the submission of this case, our high court has spoken to this issue. It has reviewed the ruling and rationale in Brown and has affirmed the Second Circuit’s invalidation of Civil Code article 919.

The court reasoned that article 919 violates both the equal protection clause of the Fourteenth Amendment to the U. S. Constitution and Article I, Section 3 of the Louisiana Constitution of 1974. Citing a number of U. S. Supreme Court decisions affecting the rights of illegitimate children, the majority points to the shift in tests from that of “minimum rationality” (Labine), to “substantial relationship to state interest” (Trimble).

As here applicable, the specific ruling of the court as articulated by Justice Blanche which we are duty bound to apply, states:

“Thus, both the United States and Louisiana Constitutions prohibit the total denial of inheritance rights of acknowledged illegitimates in the succession of the father who is survived by other relations. From our examination of art. 919, it is apparent that the respondents are being discriminated against because of their birth status, for had they been born legitimate, or made legitimate as the relator was, they would have succeeded with the relator to their father’s succession. Absent any legislative authority to remedy their loss of succession rights as the children of their father, we find the statute denies them the equal protection of the law.”

The trial court below, although finding appellant to be the acknowledged illegitimate son of Salassi Richardson, followed the statute and upheld the legitimate niece’s exception of no cause of action. We, therefore, reverse the ruling of the trial court and remand the cause with instructions to strike the judgments entered below which purport to recognize Alma Francis Christy as the sole heir of Salassi Richardson and which sends her into possession of the entire estate, and to reinstate the petition of Willie B. Richardson consistent with this opinion and the recent decision of our Supreme Court handed down September 3, 1980.

REVERSED AND REMANDED.

WATKINS, J., concurs and assigns reasons.

WATKINS, Judge,

concurring.

I concur in the result, conceding the decision of the United States Supreme Court in Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977) as interpreted in Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1979) to be controlling.

However, we cannot agree with the reasoning or the result of the former case, or the reasoning of the latter case. Indeed, Mr. Justice Powell’s interpretation in Lalli of his decision in Trimble alarms us. Mr. Justice Powell appears to uphold a New York statute requiring a judicial proceeding to establish paternity because that statute is not founded upon “marital status”. Thus, apparently, a statute that is founded upon “marital status” appears in Mr. Justice Powell’s mind, to be Constitutionally reprobate. That view of the significance of the Fourteenth Amendment, as a simple reading of Mr. Justice Rehnquist’s dissent in Trimble demonstrates, is both historically incorrect and legally unsound. If the law cannot constitutionally assign a certain legal significance to marital status, the family, which is the basic unit of Western civilization and practically all civilized society, is cast into legal uncertainty. Is the next step, assuming that “marital status” should not be reflected legislatively, to strike down marriage as a legal institution, and to permit marriage to exist as it is only extrajudi-cially (and extralegally), recognized by religious groups (which we assume will be permitted to remain in existence in vestigial form by the new establishment) only under the freedom of religious guarantee of the First Amendment? Alas! 1984 is only about three years away.

      . Succession of Brown, 379 So.2d 1172 (La.1980).

      . Labine v. Vincent, 401 U.S. 532, 91 S.Ct. 1017, 28 L.Ed.2d 288 (1971); City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1976); Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979); Matthews v. Lucas, 427 U.S. 495, 96 S.Ct. 2755, 49 L.Ed.2d 651 (1976); Trimble v. Gordon, 430 U.S. 762, 97 S.Ct. 1459, 52 L.Ed.2d 31 (1977); and Lalli v. Lalli, 439 U.S. 259, 99 S.Ct. 518, 58 L.Ed.2d 503 (1978).

      . Slip opinion per Justice Blanche, Succession of Brown, 379 So.2d 1172 on the docket of the Louisiana Supreme Court.


author: Lear, Judge.

text:
    Percy SIMMONS v. Delmus D. DIXON.
    No. 13529.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Donald H. Lee of Seal, Lee & Branch, Bogalusa, for plaintiff.
    Delos R. Johnson, Jr. and James D. Johnson, Jr., of Johnson & Johnson, Franklinton, for defendant.
    Before EDWARDS, LEAR and WATKINS, JJ.
   Lear, Judge.

Plaintiff, Percy Simmons, instituted this suit in the court below seeking to have the boundaries between two adjoining estates judicially determined. The action was originally filed in 1962 and, in its quest for finality, is before us for the third time.

The properties in question are located in Washington Parish and owned by the heirs of Percy Simmons (plaintiff-appellee) and Delmus Dixon (defendant-appellant).

This third appeal challenges the regularity of the proceedings below on two grounds: (1) That the trial court failed to follow the mandate of the appellate court’s remand ordering a contradictory hearing on the motion to dismiss and (2) that the trial court failed to conduct a contradictory hearing on the fixing of the boundary.

A review of the record shows that the judgment entered below is an interlocutory one, in that it merely sets aside a dismissal and orders the surveyor to file his process verbal into the record. There is no indication on the face of the judgment that a final determination was made on the merits. The boundary dispute remains unresolved by the court below, and it, therefore, appears that further testimony may be admissible.

Thus, as the judgment below is not a final judgment nor an interlocutory judgment causing irreparable injury, we have no jurisdiction to review and, therefore, the appeal is dismissed. Appellant is to pay all costs of these proceedings.

APPEAL DISMISSED.

      . Plaintiff died December 18,1975, and his widow was duly authorized to substitute as admin-istratrix of his estate.

      . In Simmons v. Dixon, 174 So.2d 138 (La.App.1965), this court found that the surveyor had not followed the prescribed rules for conducting a judicial survey and, therefore, reversed and remanded. After remand, the district court considered, granted, and then set aside by ex parte order its previous judgment of dismissal granted in favor of defendant. On appeal, we reversed and remanded, holding that the trial judge should have conducted a hearing thereon. 306 So.2d 67 (La.App.1974).


author: LEAR, Judge.

text:
    Arthur Gerald ROGERS et al. v. PAYNE AND KELLER OF LOUISIANA, INC. et al.
    No. 13575.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Rehearing Denied Dec. 15, 1980.
    Writ Refused Feb. 20, 1981.
    Eugene A. Booth, Baton Rouge, for plaintiffs-appellants Arthur Gerald Rogers and Martha Rogers Willis.
    John S. White, Jr., Baton Rouge, for defendants-appellees Payne and Keller of Louisiana, Inc., and Maryland Cas. Co.
    John M. Parker, Baton Rouge, for defendants-appellees Shell Chemical Co., Aet-na Ins. Co. and Morgan Lane.
    William T. Kivett, Baton Rouge, for in-tervenor-appellant Maryland Cas. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

Plaintiffs filed suit as surviving parents of their minor son, David B. Rogers, who was killed in an industrial accident on October 24, 1975, while employed in the maintenance department of Payne and Keller of Louisiana, Inc. (Payne and Keller).

The original suit was filed against Payne and Keller and its insurer and Shell Chemical Company (Shell) and its insurer. The plaintiffs allege that at the time of their son’s death, he had been assigned by Payne and Keller to work for Shell under the supervision of Morgan Lane, a Shell supervisor. While cleaning a lime silo, his safety harness malfunctioned and he fell approximately sixty feet to his death. Payne and Keller and their insurer filed an exception of no right of action, which motion was granted dismissing plaintiffs’ suit as to these defendants. Shell and its insurer filed a motion for summary judgment alleging that Shell was the statutory employer of the deceased and, as such, immune from tort liability. LSA-R.S. 23:1032 and 1061.

Plaintiffs amended their suit to name as defendants Shell supervisor Morgan Lane and Billy M. Walker, a superintendent for Payne and Keller. This amending petition was filed in March, 1979. Both filed peremptory exceptions of prescription on the basis that they were not sued in tort within one year and, if Shell prevailed on its motion for summary judgment, there were no defendants sued within one year with whom they were solidarily liable. Plaintiffs urge that Shell was in fact a joint tortfeasor, but could not be sued in tort because of the immunity granted it by the workmen’s compensation act (cited above). Therefore, plaintiffs argue, prescription was interrupted under La.C.C. art. 2097, which provides that a suit brought against one of the debtors in solido interrupts prescription with regard to all.

As noted by the trial judge, this court has expressly ruled that filing of a suit against a defendant [who] was not liable to plaintiff on a tort claim did not interrupt prescription against other defendants sued more than a year after plaintiff’s injury, since the first sued defendant could not be a solidary debtor with the other defendants. This court dealt with the same issue in Gibson v. Exxon Corporation, 360 So.2d 230 (La.App. 1st Cir. 1978), writ denied 362 So.2d 575 (La.1978). In that case, the plaintiff sued Exxon Corporation in damages but the defendant was held to be a “principal employer” under LSA-R.S. 23:1061, thus relegating plaintiff to workmen’s compensation as his sole remedy. Subsequent to one year after the accident, plaintiff joined two individuals and an alleged insurer as additional defendants. The insurer was released by summary judgment. In response to the individuals’ peremptory exception of prescription of one year, plaintiff contended that the timely filing of his suit against Exxon interrupted prescription against the exceptors, citing LSA-C.C. Art. 2097 in support of his position. The trial court rejected this contention and sustained the plea of prescription; its action was affirmed by this court which said, inter alia, at page 231:

“This article is applicable only between solidary debtors. Therefore, there must exist a solidary obligation to plaintiff on the part of Exxon and the defendants joined after the lapse of the prescriptive period. Trahan v. Liberty Mutual Insurance Company, 314 So.2d 350 (La.1975). “However, Exxon is not liable to plaintiff on the claim in tort asserted in the instant suit. LSA-R.S. 23:1032 and 23:1061.
“Accordingly, LSA-C.C. Art. 2097 is not applicable since Exxon cannot be a solida-ry debtor with defendants ....”

The summary judgment in favor of Shell was proper. The work being done by David D. Rogers was within the trade, business or occupation of his principal, Shell. As a statutory employer, the principal, under LSA-R.S. 23:1061, receives the ex delicto immunity set forth in LSA-R.S. 23:1032. Thibodaux v. Sun Oil Company, 218 La. 453, 49 So.2d 852 (La.1950).

Appellants, by supplemental brief in this court, raise the issue of the constitutionality of R.S. 23:1032, as amended by Act 147, 1976, for the first time. Since they failed to plead the alleged unconstitutionality in the trial court, we will not consider it. Greer v. Greer, 346 So.2d 846 (La.App. 1st Cir. 1977), writ denied 349 So.2d 1272 (La.).

The trial court’s judgment is affirmed at appellants’ cost.

AFFIRMED.

      . A suit brought against one of the debtors in solido interrupts prescription with regard to all.


author: COVINGTON, Judge. CHIASSON, Judge

text:
    Willie J. MARSHALL v. William E. BIGGS, Jr. et al.
    No. 13580.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Refused Dec. 5, 1980.
    Joseph R. Raggio, Baton Rouge, for plaintiff-appellant, Willie J. Marshall.
    Walter T. Gamard, II, New Orleans, for defendant-appellee, Dairyland Ins. Co.
    Ed Sutherland and R. Michael Caldwell, Baton Rouge, for defendant-appellee, AIU Ins. Co.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is a suit for personal injuries brought by Willie J. Marshall, plaintiff. The defendants are William E. Biggs, Jr., his insurer, Dairyland Insurance Company, and plaintiff’s uninsured motorist insurer, AIU Insurance Company.

Marshall was operating a 1975 Harley Davidson motorcycle in a westerly direction in the outside westbound lane of traffic on U.S. Highway 190 about five-tenths of a mile west of that highway’s intersection with La. Highway 426 in the Parish of East Baton Rouge. On the date in question, December 4, 1977, Marshall, who was driving about 55 M.P.H., came upon a Volkswagen automobile operated by defendant Biggs, which had stopped with its lights off in the same lane of traffic as that in which plaintiff was traveling. Just before colliding with the stopped vehicle, Marshall did not brake but swerved his motorcycle in an effort to avoid the collision; however, he struck the left rear fender of the Volkswagen. Marshall, who was about 32 years of age at the time of the accident, sustained serious personal injuries.

The trial court found that defendant Biggs was negligent, but held that plaintiff was barred from recovery by his contributory negligence. In reaching this holding, the trial judge stated in his oral reasons for judgment (R 283-284):

“What are the relevant circumstances? The court finds these to be, one, that plaintiff had something to drink which impaired his faculties to some extent. I am aware of the testimony that he may have not had anything to drink before 11:30, but he also testified he left Hammond after midnight and could have consumed enough, so that testimony is not in itself dispositive. We have Trooper Aulds’ testimony as to what he saw and observed the problem, from him. We have the lab report and we have the previous night’s occurrence, although the court gives least weight to the previous night’s occurrence, only mentions it. All these circumstances indicate to the court that one big circumstance that the plaintiff’s faculties were somewhat impaired at the time of the accident. The second circumstance is the plaintiff’s speed. He was going 50 to 55 miles an hour, which he was going right at the speed limit of a motorcycle on a highway. The third is, of course, the question of the lights. Plaintiff says his lights could see 40 to 50 yards. But the way the accident happened, if one of three inferences can be drawn. Either the lights were defective or the lights were not defective, but he failed to observe what he could have seen in those lights in time to stop, or he was simply driving too fast for conditions. He swerved to the left, but too late to avoid the car, but there were no other cars around. He testified there were no other cars around in either lane of traffic at anywhere near him at the time. He could have swerved earlier and that would have been the natural thing to do under these circumstances, especially since he observed over a hundred feet away. The last circumstance is the impact. The severity of the impact indicates he neither stopped nor slowed down nor swerved very much earlier.
“All of these circumstances, the court is of the opinion, are consistent with a finding that the plaintiff failed to observe the vehicle when he should have observed it and could have avoided the consequences if he had observed it, or that having observed it, he failed to act as a reasonable man to avoid the consequences. His failure to do so is contributory negligence, which, under the present law, bars his recovery.”

We agree with the trial judge’s findings, and affirm.

The decisive issue is whether plaintiff was guilty of contributory negligence. A determination of contributory negligence is, for the most part, a factual matter, lying within the province of the trial court. Such a determination will not be disturbed on appeal in the absence of manifest error. In order to find manifest error, the record must support the conclusion that the factual determination was clearly wrong. Skinner v. Nightingale, 377 So.2d 1348 (La.App. 1 Cir. 1979). We have carefully reviewed the entire record and conclude that plaintiff was contributorily negligent. The evidence presented is supportive of the conclusion that Marshall was not maintaining a proper and careful lookout or maintaining proper control of his motorcycle under the circumstances.

The accident occurred on a dark night (sometime after midnight); however, the weather was reasonably clear and visibility good. It was not raining. Marshall did not meet any other vehicles as he approached the stopped Volkswagen; he was not blinded by any oncoming lights; there was nothing which would have obstructed his view of the Biggs vehicle; he could have driven into the other lane and around the stopped vehicle had he seen it soon enough. The evidence shows that plaintiff did not apply his brakes at any time, and that he was still driving at a speed of about 55 miles per hour when the collision occurred. He conceded he was driving at such a speed that he could not have stopped within the range of his headlights. Under these facts the trial judge properly concluded that Marshall was guilty of contributory negligence.

It has been held on many occasions, and under varying circumstances, that one who runs into the rear of a parked or stopped vehicle at night will be deemed negligent where the attending circumstances are such that he reasonably could have or should have seen the stopped vehicle in time to avoid an accident. See Grinnell Mutual Reinsurance Company v. Rich, 251 So.2d 450 (La.App. 1 Cir. 1971), writ denied, 259 La. 898, 253 So.2d 222 (1971), and cases therein cited.

In Levy v. Graffignini, 255 So.2d 422, 424 (La.App. 4 Cir. 1971), the Court stated:

“The duty of a motorist to look ahead and observe never ceases and he is held to have seen an object which, by the exercise of ordinary care and prudence, he should have seen in time to avoid a collision with that object; he is under a continuing duty to maintain a proper lookout and always must closely observe preceding traffic. Whether defendant should have seen the stopped plaintiff automobile in time to avoid the collision is, of course, a question of fact ....”

The evidence shows that Marshall failed to fulfill his duty to be properly observant. By the exercise of ordinary care, he should have seen the stopped vehicle in time to have avoided a collision with it.

In view of the foregoing findings, we deem it unnecessary to rule on the questions of the impairment of plaintiff’s faculties by the use of alcohol or the admissibility of the blood-alcohol test. The other issues raised by plaintiff on this appeal are without merit.

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

AFFIRMED.

CHIASSON, J., concurs and assigns reasons.

CHIASSON, Judge

concurring:

Although I agree with the ultimate result, I cannot agree with the factual findings of my colleagues herein.

Plaintiff and the state trooper, the only witnesses to testify as to how the accident occurred, both testified that the accident occurred just as the plaintiff was coming out of a curve to the right. Plaintiff testified that as soon as he negotiated the curve he saw defendant’s automobile, tried to evade it by turning to the left but was too close to avoid the accident. The state trooper did not testify as to the distance between the parked vehicle and the curve. The range of vision of plaintiff’s headlight has nothing to do with the distance that he could see down the highway while he is traveling in a curve. The light would be off to the side of the highway at such time.

Under these facts a conclusion that, because plaintiff’s headlight would shine 40 to 50 yards down a straight highway, he should have seen the parked automobile from that distance is not justified or warranted.

On the other hand, the trial judge was correct in concluding that plaintiff’s faculties were somewhat impaired because of the consumption of alcoholic beverages. The blood test results were properly admitted and showed a reading of .21 percent grams of alcohol. Plaintiff’s reaction time and ability to properly determine time and distance are crucial questions for a determination of whether plaintiff was negligent. From the record the trial judge was justified in concluding that the alcohol induced impairment was a substantial contributing cause of the accident.

For these reasons I concur in the result reached by the majority herein.


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    Walter H. BROWN v. STATE of Louisiana, etc., et al.
    No. 13584.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Garic K. Barranger, Covington, for plaintiff-appellant Walter H. Brown.
    Thomas F. Wade, Baton Rouge, for defendants State of Louisiana through the Department of Correction et al.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This is a suit filed by an inmate at Louisiana State Penitentiary alleging neglect or improper medical care while confined to the prison hospital at Angola, Louisiana.

Plaintiff, a paraplegic, was received at the prison on March 27, 1973 while suffering from various illnesses involving his legs and the lower parts of his body, including a kidney infection and decubitus ulcers.

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

“The record is exhaustive regarding plaintiff’s medical condition during his incarceration at Angola and during his stays at Charity Hospital in New Orleans and Greenwell Springs Hospital. While in Angola, his condition deteriorated. Later, after treatment at Charity Hospital in New Orleans, his condition improved. When discharged from Angola, his medical condition was better than when he entered.
“The duty of the Louisiana Department of Corrections is to furnish reasonable and adequate medical care. In the opinion of the Court, the Department has fulfilled its duty, with one exception to be discussed later.
“A review of the evidence shows that plaintiff had many ups and downs. He was not an easy patient to treat or control. Most of plaintiff’s complaints concern his condition which required a lot of attention. He felt that he wasn’t getting the proper amount of attention and treatment. He also complained about the doctor’s choice of medication. He was seen frequently by the doctors and given medication. Considering his condition when he entered the penitentiary and the treatment he received while there, the Court finds that he did not receive ‘ideal’ or ‘perfect’ care, such as would have been afforded him in a private hospital. But the care he did receive was adequate and reasonable.
“The only instance where the Department breached its duty relates to Dr. Nason having plaintiff placed in a locked room for nine days. Whatever Dr. Na-son’s reasons were, they were not reasonable. Plaintiff could not get his wheelchair into the shower nor could he move his bowels normally. He was forced to use his hands to void his bowels and was forced to do without a bath or shower during this nine day period. For this the Department is liable to plaintiff in the sum of $2,500.00.
“Plaintiff also complains about being burned in a tub of . hot water. The evidence shows that the tub in question could be filled only with hot water and that the patients-inmates were required to wait until the water cooled. Plaintiff knew of this problem. Without waiting and without testing the water, he placed himself in the tub and suffered burns to his lower body.
“The Court finds that the Department was not negligent for permitting this ‘hot water only’ condition to exist, because all of the patients were suitably warned. Even if it could be said that the Department was negligent, plaintiff was guilty of gross contributory negligence by knowing of the hot water problem, by failing to wait for the water to cool and by failing to test the water prior to getting in the tub.”

The standard of care imposed upon the Department of Corrections in providing for the medical needs of inmates is that those services be reasonable. Moreau v. Department of Corrections, 333 So.2d 281 (La.App. 1st Cir. 1976); Dancer v. Department of Corrections, 282 So.2d 730 (La.App. 1st Cir. 1973).

The statutory authority imposing this duty is found in LSA-R.S. 15:760 which provides:

“Where large numbers of prisoners are confined the proper authorities in charge shall provide hospital quarters with necessary arrangement, conveniences, attendants, etc.”

Factual findings by the trial court are entitled to great weight and will not be disturbed on appeal absent a finding of manifest error. Canter v. Koehring Company, 283 So.2d 716 (La.1973).

Appellant contends that the award is insufficient. However, under LSA-C.C. art. 1934(3) “much discretion must be left to the [trial] judge or jury ....” Also see Reck v. Stevens, 373 So.2d 498 (La.1979). Although the award is modest, we cannot say that the record clearly reveal(s) that the trier of fact abused its discretion in making its award.” Coco v. Winston Industries, 341 So.2d 332, 335 (La.1977).

We find no error in the trial court’s findings. Therefore, the judgment of the trial court is affirmed, appellant to pay all costs of this appeal.

AFFIRMED.


text:
    Arthur C. CEARLEY et al., v. Robert J. FARRIS and Ann N. Farris.
    No. 13589.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      Russell L. Dornier and Leon Gary, Jr., Baton Rouge, for plaintiffs.
    Maurice D. Robinson, Jr., Hammond, for defendant, Robert J. Farris.
    Arthur W. Macy, Hammond, for defendant, Ann N. Farris.
    Autley B. Newton, Hammond, for defendants, Don Pope & McDonald Corp.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

The trial court granted summary judgment and ordered the dismissal of plaintiff’s suit against defendant, Robert J. Far-ris.

Plaintiff, Builders Center, Inc., filed suit against defendant for a real estate commission pursuant to a contract with defendant to sell certain property owned by defendants, Robert and Ann Farris. Plaintiff alleges it was the procuring cause of the sale that ensued. Defendant contends that the initial negotiations with the purchaser had ceased and broken off due to the rejection of the offer by the purchaser. Thereafter, the negotiations were conducted solely by another person which ultimately resulted in the sale. Plaintiff, on the other hand, contends the negotiations were continuous.

This is a dispute as to a material fact which can only be resolved on the trial of the case. La.C.C.P. art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979); Womack Agencies v. Fisher, 86 So.2d 732 (La.App. 1st Cir. 1956); Bullis & Thomas v. Calvert, 162 La. 378, 110 So. 621 (1926).

For this reason, the summary judgment of the trial court is vacated and the case is remanded to the trial court for further proceedings. All costs of this appeal are to be paid by Robert J. Farris. All other costs are to await the final disposition of the suit.

JUDGMENT VACATED — CASE REMANDED.


author: COVINGTON, Judge.

text:
    Willie F. HOBGOOD et ux. v. FIDELITY & CASUALTY INSURANCE COMPANY et al.
    No. 13591.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Writ Refused Dec. 5, 1980.

      Maurice J. Le Gardeur, Jr., Covington, for plaintiff-appellant.
    Ronald J. Brumfield, Franklinton, for defendants-appellees, Mr. & Mrs. Ellis Bennett.
    John W. Anthony, Bogalusa, for appellee Allstate Ins. Co.
    Robert C. Stern, New Orleans, for Dennis Magee, Fred Magee & Fidelity & Cas. Ins. Co., appellee.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal from a summary judgment in favor of defendants, Dennis Magee, Fred Magee, Fidelity & [and] Casualty Insurance Company of New York, Allstate Insurance Company, Mr. and Mrs. Ellis Bennett, and Bobby Wade Thomas, dismissing the petition for damages filed by plaintiffs, Willie F. Hobgood and his wife, Arlene Hobgood, individually and as the representative and natural tutor to their minor son, Keith Hobgood, on a motion filed by all defendants. We reverse and remand.

In their capacity as parents and administrators of the estate of their 14-year old son and individually, Mr. and Mrs. Hobgood sued the two alleged tortfeasors, Dennis S. Magee and Bobby Wade Thomas (the father of Magee and the parents of Thomas were also joined as defendants), the insurer of the Magee vehicle, Fidelity and Casualty Insurance Company of New York, and the uninsured motorist carrier of the Hobgoods, Allstate Insurance Company. The gist of the petition was to the effect that the concurrent negligence of Magee and Thomas, obstructing a public highway, caused the Hobgood youth, operating a Honda motorcycle, to run into the rear of the Magee vehicle, severely injuring the plaintiffs’ son.

A reading of the pleadings, depositions of Dennis Magee and Keith Hobgood, and affidavit of Willie F. Hobgood convinces us that the trial judge committed manifest error in sustaining defendants’ motion for summary judgment. The case is not in a posture for summary judgment. There is a genuine issue of material fact: How did the accident happen? Whose fault caused the accident? The record as it stands does not show these facts with any degree of certainty.

Summary judgments, needless to say, should be sparingly granted. Seldom, if ever, is summary judgment available in a vehicular accident case, which depends so much on the trier of fact’s actual observance of the witnesses and determination of the credibility of the witnesses. The courts have repeatedly held that a motion for summary judgment is not a substitute for a trial on the merits. State Farm Fire & Casualty Company v. Sentry Indemnity Company, 316 So.2d 185 (La.App. 3 Cir. 1975). In determining the genuineness of the issue, the courts are not permitted to consider the merits of the fact at issue, the credibility of witnesses, or whether the party who is alleging the fact will be able to sustain the burden of proving it. Fly v. Hand, 376 So.2d 1016 (La.App. 1 Cir. 1979).

It also appears from the trial judge’s written reasons for judgment that he considered that Keith Hobgood was negligent or contributorily negligent, as a matter of law. Although there is a presumption of negligence when the following motorist strikes a preceding motorist from the rear, LSA-R.S. 32:81; Williams v. State Farm Insurance Company, 273 So.2d 680 (La.App. 1 Cir. 1973), the law does not declare that under all circumstances the following motorist who rear-ends a preceding motorist is positively negligent. Each case must be decided on its own particular facts and circumstances. Picou v. Allstate Insurance Company, 206 So.2d 99 (La.App. 4 Cir. 1968).

In Employers’ Surplus Line Ins. Co. v. City of Baton Rouge, 362 So.2d 561, 565 (La.1978), the Court stated:

“It is well settled that a motion for summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966; Andrew Development Corp. v. West Esplanade Corporation, 347 So.2d 210 (La.1977); Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Stallings v. W. H. Kennedy & Son, Inc., 332 So.2d 787 (La.1976). Only when reasonable minds must inevitably conclude that the mover is entitled to judgment as a matter of law on the facts before the court is a summary judgment warranted. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Cates v. Beauregard Electric Cooperative, Inc., 328 So.2d 367 (La.1976). The burden of showing that there is not a genuine issue of material fact in dispute is upon the mover for summary judgment. Any doubt is resolved against the granting of a summary judgment and in favor of a trial on the merits to resolve disputed facts. Andrew Development Corp. v. West Esplanade Corporation, supra; Morgan v. Matlack, Inc., supra; Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963).”

Under LSA-C.C.P. art. 966, it is only where there is no genuine issue of a material fact and the mover is entitled to judgment as a matter of law that the motion for summary judgment can be granted. Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977). The summary judgment granted by the trial court in favor of defendants is reversed.

Allstate answered the appeal and asked for damages for this allegedly frivolous appeal. The request for damages is denied. LSA-C.C.P. art. 2164.

The case is remanded for a trial on the merits. Costs of this appeal are taxed against defendants-appellees; all other costs are to await the final disposition of this case.

REVERSED AND REMANDED.


text:
    FIDELITY FINANCIAL SERVICES, INC. v. Edward E. McCOY.
    No. 13592.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      George R. Covert, Baton Rouge, for plaintiff.
    Charles W. Borde, Jr., Denham Springs, for defendant.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   CHIASSON, Judge.

This is a suit on a promissory note defended successfully by the defendant-appel-lee, Edward E. McCoy, on the ground of insanity. The trial court also ordered the cancellation of a chattel mortgage which was granted by the defendant at the same time.

Plaintiff-appellant, Fidelity Financial Services, Inc., appeals the judgment contending that the lower court erred: (1) in finding that the defendant had proven the incapacity of the defendant to have existed at the time the contract was made; and (2) in ordering the cancellation of the chattel mortgage, including the automobile financed, when such cancellation was not sought in the suit.

The record establishes that Mr. McCoy was discharged from the U.S. Army in 1960 because of his mental condition and that he has been receiving psychiatric treatment and medication at the V.A. hospitals in New Orleans and Gulfport ever since. His wife, his son, and two other persons from the community testified that they knew and that it was commonly known in the community that defendant was mentally incapable of handling his affairs. Mr. McCoy was interdicted after the filing of this suit by judgment rendered on April 19, 1979.

Plaintiff’s only witness was its vice president and general manager who negotiated the loan. He testified that a car dealer, for whom he was then handling automobile financing, brought Mr. McCoy to his office to secure a loan for the purchase of a 1973 Chevrolet Malibu automobile; that he obtained all the information contained in the chattel mortgage (another car, a tractor, a T.V., and other household goods) from Mr. McCoy; that the whole transaction took about forty-five minutes; and that Mr. McCoy appeared to be normal.

To annul the contract the law requires that the defendant proves he was incapacitated at the time of the contract [La.C.C. art. 1788(2)] and that it was generally known by those who saw and conversed with him or it was known to the person who contracted with him [La.C.C. art. 1788(3)]. Louisiana Civil Code Article 402 has basically the same requirements.

The trial court found that the defendant had established his mental incapacity; that his condition was common knowledge in the community; and that the incapacity existed at the time of the contract.

Plaintiff’s first specification of error is no more than an attack upon the court’s evaluation of the credibility of the witnesses. We hold that the determination of the trial court is based upon a reasonable evaluation of credibility and of the evidence presented. Our review of the entire record convinces us that the trial court was correct in its findings. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Plaintiff argues in brief it had carried its burden of proof to establish that the contract was made during a lucid interval. La.C.C. art. 1788(9). Mr. Brown was plaintiff’s only witness, although the record establishes that the car dealer was present during the loan preparation and he was available as a witness. Failure of plaintiff to call this witness raises a presumption that his testimony would be unfavorable to plaintiff. Morgan v. Matlack, Inc., 366 So.2d 1071 (La.App. 1st Cir. 1979) and cases cited therein.

But even without that presumption, we find that the plaintiff failed to carry its burden of proof. Although plaintiff claims it obtained all the information about the other items in the chattel mortgage from Mr. McCoy, its representative testified that he had consulted a “credit bureau” and obtained all of the financial transactions of Mr. McCoy. The record therefore is not clear as to what information Mr. McCoy ^furnished and what information was furnished by a third person.

Plaintiff’s second specification of error relates to the cancellation of the chattel mortgage. It contends that defendant did not pray for cancellation of the chattel mortgage and it was therefore improper for the trial court to order the cancellation.

Plaintiff, in the body and in the prayer of its petition, sought to have its chattel mortgage recognized. The question of the validity of the chattel mortgage was therefore before the trial court. Upon finding that the defendant lacked mental capacity to contract and that the chattel mortgage was invalid, it was proper for the trial court to order the cancellation of the chattel mortgage.

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

AFFIRMED.


text:
    John C. BURCH, Sr. and Frances Brown Burch v. Beverly Jean Ebey Burch LOUQUE and Joseph P. Louque, Jr.
    No. 13593.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.

      James E. Durbin, Denham Springs, for plaintiffs.
    R. Neal Wilkinson, Baton Rouge, for defendants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   LEAR, Judge.

This matter involves a claim for visitation rights by paternal grandparents with their granddaughter, Laura Nicole Burch (Nicole), three and one-half years of age. The grandparents are divorced and each seeks separate visitation rights.

The facts necessary for a determination of the issues are as follows:

John C. Burch, Jr. and Beverly Jean Ebey Burch were legally separated in June, 1978. The mother was given custody of Nicole and the father was granted visitation rights on alternate week-ends from 7:00 p. m. Friday to 7:00 p. m. Sunday, plus alternate major holidays and one week during the Christmas holidays. He was also allowed to have the child two weeks each summer and on Father’s Day. On or about August 3, 1978, the father was killed in an automobile accident. On August 30, the paternal grandparents filed suit for visitation rights, “the same as what the father was awarded” in the separation suit.

On November 8, 1978, the court awarded visitation rights of one week-end each month, plus two weeks during the summer, to each grandparent. This judgment was appealed to this court and affirmed on May 29, 1979. Burch v. Burch, La.App. 1st Cir., No. 12,569.

Thereafter, on August 6, 1979, Beverly Jean Ebey Burch married Joseph Paul Lou-que, Jr., who adopted Nicole. Suit was then filed to modify the visitation rights of the grandparents. After a hearing on the rule to show cause why John C. Burch, Sr. and Frances Brown Burch should not be denied visitation rights, the court rendered judgment reaffirming the prior judgment awarding fixed visitation rights. Plaintiffs-appeal, alleging error by the court in the granting of visitation rights or, in the alternative, the visitation granted was excessive, amounting to divided custody.

Prior to the Acts of 1978, Number 458, Section 1, the blood parent or parents and all other blood relatives of an adopted person were divested of all legal rights with regard to the adopted person. LSA-C.C. art. 214. The 1978 act added to this codal article, "... except as provided by R.S. 9:572(B).” In pertinent part, LSA-R.S. 9:572(B) providing for visitation rights of grandparents states:

“Notwithstanding any provision of the law to the contrary contained in Art. 214 of the Louisiana Civil Code, in the event of an adoption, the natural parents of a deceased party to a marriage dissolved by death may have limited visitation rights to the minor child or children of the marriage dissolved by death; provided the natural parents of a deceased party prove that they have been unreasonably denied visitation rights and such limited visitation rights would be in the best interest of the minor child or children.” (Emphasis ours.)

The record indicates that although some problems existed concerning visitation, yet both grandparents were able to have the child at least on a monthly basis and generally more often.

We are of the opinion that the trial court erred in granting fixed visitation rights in this matter without proof that the grandparents were being unreasonably denied visitation.

Until such time as the grandparents can offer proof of being unreasonably denied visitation with their grandchild, the grandparents have no cause to have the court set fixed visitation rights. For the trial court to do so constituted manifest error. See Dripps v. Dripps, 366 So.2d 544 (La.1978), wherein the court, tracking in part the language of R.S. 9:572(B) stated:

“Limited visitation rights may be granted [by the trial court] provided the natural parents of the deceased natural father of the children have been unreasonably denied visitation rights and such limited visitation rights would be in the best interest of the minor children” (Emphasis added.)

Further, the deposition of Dr. Joseph Manson, which was offered as a joint exhibit, was to the effect that although the child would benefit by being allowed to visit and keep in contact with her grandparents, he felt that she should not be out of her home two week-ends each month.

Therefore, the judgment of the trial court is reversed and judgment is rendered in favor of appellants, appellees to pay all costs.

REVERSED AND RENDERED.

      . The child’s name was changed to Laura Ni-Hp I.ouque.


text:
    In the Matter of the Succession of F. Grady MACK and Mary Purvis. Melissa Mack LINDER, J. D. Mack and Prestley Mack v. Columbus BLOUNT and Nellie Mack Blount.
    No. 13594.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 6, 1980.
    Curtis K. Stafford, Jr., Baton Rouge, for plaintiffs.
    Davis A. Gueymard, Baton Rouge, for defendants.
    Before COVINGTON, CHIASSON and LEAR, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment in favor of defendants, Columbus Blount and Nellie Mack Blount, dismissing the petition for collation filed by plaintiffs, Melissa Mack Linder, J. D. Mack and Prestley Mack, on a motion for summary judgment. We reverse and remand.

This matter was previously before us on appeal from a judgment dismissing plaintiffs’ petition for collation on a motion for judgment on the pleadings filed by the defendants-appellees. On that appeal, we reversed and remanded, because we found that defendants-appellees’ right to judgment on the pleadings was not clearly established by the pleadings. See Succession of Mack, 366 So.2d 1063 (La.App. 1 Cir. 1978).

The facts are fully set out in the first Succession of Mack case. In her capacity as administratrix of the successions and individually, with J. D. Mack and Prestley Mack, Melissa Mack Linder filed suit against Columbus Blount and Nellie Mack Blount, for collation and to annul the subject sale. The gist of the petition was to the effect that the sale of the interest of their mother to the defendants was a donation in disguise in that the alleged purchase price was below one-quarter of the real value of the immovable property sold at the time of sale. LSA-C.C. art. 2444.

A reading of the pleadings, copy of the subject deed, depositions of Melissa Linder, J. D. Mack and Prestly Mack, affidavit of Columbus Blount, and the affidavits of two realtors, Kermit Williams and James F. Maxwell (which are not in agreement as to the value of the property at the time of the sale, almost 30 years ago), convinces us that the trial judge committed manifest error in sustaining defendants’ motion for a summary judgment. The case is not in a posture for such disposition. The affidavits, together with the depositions, pleadings and exhibits, show us that there is a genuine issue of material facts. The disputed facts are: the value of the property at the time of the sale; and the consideration, if any, actually paid by appellees for the property.

Appellants have offered, annexed to affidavits, the opinion of Kermit Williams, a realtor in East Baton Rouge Parish. He appraised the property, as of the time of the sale, at the sum of $4,050.00. Appellees, on the other hand, have offered an appraisal of James F. Maxwell, a realtor in Livingston Parish, which valued the property at $1,780.00. Appellants have maintained that appellees paid $1,000.00 total (in cash) for the property, which is the consideration recited in the deed; appellees have asserted that in addition to the $1,000.00 cash recited as consideration, they paid a mortgage of $950.00, plus interest. Appellants dispute this payment.

Therefore, a trial must be held on the issues of value of the property at the time of the sale, what consideration, if any, appellees actually paid, and any other issues flowing from the pleadings. Summary judgments should be sparingly granted. The courts have repeatedly held that a motion for summary judgment is not a substitute for a trial on the merits, Odom v. Hooper, 273 So.2d 510 (La.1973). In determining the genuineness of the issue, the courts are not permitted to consider the merits of the fact at issue, the credibility of witnesses, or whether the party alleging the fact will be able to sustain the burden of proving it. Fly v. Hand, 376 So.2d 1016 (La.App. 1 Cir. 1979).

Under LSA-C.C.P. art. 966, it is only where there is no genuine issue of a material fact and the mover is entitled to judgment as a matter of law that the motion for summary judgment can be granted. Morgan v. Matlack, Inc., 342 So.2d 167 (La.1977); Fly v. Hand, supra.

The summary judgment granted by the trial court in favor of defendants is reversed. The case is remanded for a trial on the merits.

Costs of this appeal are taxed against defendants-appellees; all other costs are to await the final disposition of this case.

REVERSED AND REMANDED.