text:
    STATE of Louisiana Through the DEPARTMENT OF HIGHWAYS v. ROLAND J. ROBERT DISTRIBUTOR, INC.
    No. 14309.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Vincent J. Sotile, Talbot, Sotile, Car-mouche, Waguespack & Marchand, Donald-sonville, for defendants and appellees.
    Johnie E. Branch, Jr., Executive Asst. Gen. Counsel, and Bryan Miller, Asst. Gen. Counsel, Dept, of Transp. and Development, Baton Rouge, for plaintiff and appellant.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an appeal taken by the State Department of Highways from the awarding to defendant, Roland J. Robert Distributor, Inc. of $57,280.00, less a credit of $7,897.00 previously deposited in the court, for property value and severance damages in the expropriation of a portion of a certain tract of land which the defendant corporation owned and on which it operated a service station, tire and automobile parts distributorship and automobile repair service department. Also located on the tract of land was a building used as a warehouse, on each end of which building were two retail rental units. The Department of Highways contends on appeal that the portion of the award attributable to property value was excessive, and that no severance damages should have been awarded. We affirm.

The order of expropriation was dated March 9, 1976. The trial on the amount to be awarded was conducted December 21, 1979. Although the cases were not consolidated, by stipulation of counsel the testimony taken in four other expropriation cases involving property near the site of the property presently involved was to be considered for purposes of formulating a judgment as to value.

The service station and related facilities are located on the northwest corner of the intersection of Louisiana Highway 44 and Louisiana Highway 30 in Ascension Parish. The property taken in the present case was a strip of property fifteen feet in width along Louisiana Highway No. 44, containing 2,287.50 square feet. The strip of property is the easternmost fifteen feet of the defendant’s tract of land at this site. The parent tract of land owned by the defendant and affected by this expropriation is slightly irregular in shape, but it approximates a 200 foot by 200 foot square excluding a roughly equilateral triangle of land of about 90 feet on each side of the triangle which filled in the northwest corner of the said intersection. At the point of intersection Highway 44 runs north and south from Gonzales to the Burnside industrial complex and Highway 30 runs east and west from Baton Rouge to the Airline Highway. Gonzales lies a short distance to the north on Highway 44.

Although the defendant’s property lies on the corner, bordering the property to the north and west is the property of Eastbank, Inc., which owns and operates a large shopping center thereon. Directly to the east across Highway 44 from defendant’s property is the property on which Daigle Pontiac conducts its business. A bank and a considerable number of retail outlets are also situated on Highway 44.

The property of defendant on Highway 44 along with property belonging to others was expropriated to effect the widening and improvement of that highway. The intersection of Highways 44 and 30 was controlled by a traffic signal both before and after widening. However, a median was to be placed on Highway 44 on the north and south approaches to the intersection which had not been in place before.

At the time of expropriation defendant’s place of business had one island for gasoline pumps, located on the Highway 30 access drives to the service station. Although wiring and plumbing had been installed to permit the building of another service island parallel to Highway 44, the gasoline pumps for that island had not been installed at the time of the taking.

Defendant called one expert appraiser, Kermit W. Williams. The Department of Highways called two expert appraiser, L.J. Roy and Oren W. Russell. The three appraisers arrived at their valuation of the property by the comparable sales method. Williams estimated the expropriated property to have a value of $5.00 per square foot, or the portion taken to be worth $11,-437.00 for the land and $1,508.00 for the improvements taken, for a total value of $12,945.00. He testified that on the remaining property defendant had sustained severance damages of $44,335.00 as a result of the taking, determined by the reduction of the value of the remaining land from $5.00 to $4.00 per square foot, and a reduction of 10% of the utility of the buildings and improvements on the remaining land. Roy, on the other hand, testified that the expropriated property was worth $2.50 a square foot at the time of taking, or $5,719.00. Improvements were valued by Roy at $2,288.00. He thus arrived at a total valuation of the property expropriated at $8,007.00. Russell estimated the value of the property taken to be $2.31 a square foot, or $5,284.00. Improvements were valued by Russell at $2,709.00. He thus arrived at a total valuation of $7,993.00. Neither Roy nor Russell found that any severance damages had been sustained.

The trial court found in written reasons for judgment that Williams’ appraisal was the most reasonable. The reasons for judgment specifically mention (1) the fact the corner in question was the prime corner in the area, (2) the fact that the corner in question had the greatest traffic flow in the area, and (3) the fact that the largest shopping center in the Gonzales area stood on the north and west sides of the defendant’s property. A trial court award in an expropriation case will not be upset when it bases its award upon a reasonable and sound analysis of expert testimony. State through Department of Highways v. Havard, 239 La. 133, 118 So.2d 131 (1966); State through Department of Highways v. Thurman, 231 So.2d 692 (La.App. 1st Cir. 1970).

Defendant’s expert and the state’s experts used, or were aware of, generally the same comparable sales. All the sales were made for a price substantially less than the $5.00 per square foot used by Williams in making his appraisal. However, some of the comparable sales were old, and the locations of the comparable property were not nearly so favorable. As noted by the trial court, he relied in making his award primarily upon the extremely favorable and, therefore, valuable location of the property expropriated. No other locations were nearly so favorable, and some of the sales were much more remote in time. The basic disagreement between the appraisers for the state and the defendant results from their use of different sales in arriving at the most appropriate percentage of increase in value to be applied to the subject property to reflect most accurately its value at the time of the taking. We cannot say that the reasons for the selection of the various comparables given by each appraiser are unreasonable or unworthy of consideration. While it is true, as the state argues, that Mr. Russell’s conclusion as to percentage of increase in value was based on a consideration of a much larger number of land sales in the area than was that of Mr. Williams, we believe that his method included numerous parcels of land that were not truly comparable to the subject property. Mr. Williams, on the other hand, limited his consideration to a much smaller number of sales, but in being more selective was able to use sales of more nearly comparable parcels of land in determining what he considered to be the most appropriate percentage of increase. The state’s appraisers’ percentage adjustment of 4% to 5% per annum increase in value as a projection in adjusting older sales to 1976 market value does not appear to be as realistic as the l!/2% per month compounded monthly percentage testified to by Mr. Williams, the appraiser for defendant, in light of the prevailing economic conditions. The 4% to 5% price level adjustment is substantially less than the increase taking place nationally and regionally and does not, therefore, seem nearly as accurate a measurement of the increase as does the lV2% figure, particularly in view of the strong evidence of the rapid and sharp economic growth of the Gonzales area which we find in the record. Although the trial court did not comment in its reasons for judgment on all of the factors relied upon by the three expert witnesses in arriving at their estimate of value, we have no doubt that the court below was influenced by the foregoing factors in view of its conclusion that the factors relied upon by Mr. Williams, defendant’s appraiser, most relevantly influenced market value and severance damages. The trier of fact is authorized and has the right to determine the weight to be given to the testimony of each expert witness, and his finding will not be overturned in the absence of manifest error. State, Department of Highways v. McPherson, 261 La. 116, 259 So.2d 33 (La.1972). We find no error in the trial court’s determination of the value of the property taken.

Severance damages are the damages to the remainder of a tract of land resulting from a partial taking, and are ordinarily calculated as the difference between the market value of the remaining property immediately before and immediately after the taking. State, Dept. of Hwys. v. Denham Springs Dev. Co., Inc., 307 So.2d 304 (La.1975). The trial court awarded defendant the sum of $44,335.00 as severance damages to its remaining property stating that the formerly unrestricted access to the property from La. 44 will be restricted “due to the construction of a median barrier on La. 44.” The trial court further stated that “because of the reduction in size of the subject tract and its layout, particularly with reference to the pump island, ingress and egress from the service station area will be rendered much more difficult.” Both of the state’s appraisers testified that the taking resulted in no damages to the remainder of defendant’s property. These two appraisers, using the market data method, were of the opinion that after the taking the highest and best use of the remainder was still commercial retail as it was before, and that the utility of the remaining land and its improvements had not been diminished by the taking of the expropriated parcel. They testified that the construction of the median barrier on La. 44 would not have the effect of impairing access to the subject tract to any greater extent than before, and that there remained sufficient land area to utilize the pump island area on La. 44 and to conduct the same volume of business that defendant enjoyed prior to the taking. Mr. Williams, defendant’s appraiser, testified that damages to the remaining property were sustained in the amount of $44,335.00. Also using the market data approach, he agreed with the state’s appraisers that the remainder retained its highest and best use as commercial retail after the taking, but was of the opinion that the utility of the buildings and improvements on the remainder had been diminished in value by approximately 10%, and that the value of the remainder of the defendant’s tract of land had been reduced by the taking to the extent of 20%. Mr. Williams testified that the erection of a median barrier would definitely restrict the flow of traffic into and out of the business from La. 44. The median is what is described as a painted striped left turn control median and apparently will be neither raised nor depressed, and is in effect a middle lane to be used by southbound vehicles on La. 44 intending to turn left at the intersection with La. 30. In his initial estimate, Mr. Williams was under the impression that the median was going to be raised and therefore a barrier to any vehicles seeking to make a left turn from La. 44 into the subject property and seeking to make a left turn on La. 44 when exiting the subject property. In his testimony at trial, however, after he learned that the median was to be only striped he was still of the opinion that this type of traffic control would inhibit ingress and egress from the property along La. 44. While both parties concede that the law does not prohibit vehicles from crossing such a median, it is difficult to deny that the practical effect of the median is to discourage the flow of traffic into and out of the subject property. As the nature of defendant’s business operations on this property is particularly dependent on traffic flow and ease of access to and from the property, we cannot find manifest error in the trial court’s conclusion that the construction of the median on La. 44 has restricted the access the property enjoyed before the taking resulting in damages to defendant.

The record further shows, in regard to severance damages, that on the La. 44 side of defendant’s property, there was approximately twenty-five parking spaces for vehicles left for servicing, repairs, tires and accessories. Some ten of these parking spaces will be lost as a result of the expropriation. The loss of so substantial a number of customer parking spaces will clearly diminish the ability of defendant to accommodate as large a number of its customers’ cars as before, and will thus reduce the amount of business that defendant is able to conduct on the remaining property, hence reducing its value. Furthermore, as a result of the taking it will not be feasible to complete and use the projected service island along La. 44 because of the reduction of space attendant upon the taking, and the defendant has been deprived of the full potential of the future growth of its business operations. We, therefore, find no error in the trial court’s award of severance damages.

We note that the judgment of the trial court appears to fix attorney’s fees for defendant at 25% of the entire amount of the award. Under the provisions of LSA-R.S. 48:453(E) the award of attorney’s fees is to be fixed in a reasonable amount not to exceed 25% of the amount by which the award exceeds the amount deposited in the registry of the court. The trial court in the exercise of its discretion fixed attorney’s fees at 25%. The judgment of the trial court should have spelled out that attorney’s fees of 25% were to be computed upon the difference between the amount deposited and the amount of its award for market value and severance damages. To the extent it failed so to limit attorney’s fees by specific language, it erred.

The total award for property value and severance damages was $57,280.00. The amount deposited was $7,897.00. Hence the amount of attorney’s fees should be 25% of the difference between these two sums, or 25% of $49,383.00. The judgment of the trial court is hereby amended accordingly.

We affirm the judgment of the trial court, as amended, all costs to be paid by appellant.

AMENDED AND AFFIRMED.

      . State through DOTD v. First National Bank of Gonzales, No. 25,277, State through DOTD v. LeBlanc, No. 24,528, State through DOTD v. Cannon, No. 22,973, and State through DOTD v. Daigle, No. 25,278, Twenty-Third Judicial District Court, Parish of Ascension.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    HALMAR, INC. v. LOUISIANA DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT.
    No. 14310.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    H. Bruce Shreves, New Orleans, for plaintiff-appellee Halmar, Inc.
    Sharon F. Lyles, Executive Asst. Gen. Counsel, Baton Rouge, for defendant-appellant Louisiana Dept, of Transp. and Development.
    Bernard J. Bagert, Jr., New Orleans, for intervenor Donald M. Clement Contractor, Inc.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal from a judgment of the trial court granting plaintiff, Halmar, Inc., a preliminary injunction against the Department of Transportation and Development (DOTD), enjoining DOTD from taking any further action of whatever nature to require Halmar to execute a contract on a certain state project at Halmar’s bid price, from awarding the particular contract to any other bidder, and from taking any action to forfeit Halmar’s bid bond. The judgment failed to require plaintiff to furnish security to indemnify DOTD for payment of costs and damages, and Halmar has posted no such bond. We reverse and remand.

This suit for injunctive relief arises out of DOTD’s seeking of public bids on State Project No. 450-90-19, FAP #1-10-5 (197) 236, entitled “1-10, St. Bernard Avenue Interchange Joint Use, Route 1-10,” which project consisted of grading, drainage structures, landscaping, recreational facilities, concrete drives and walks, and related works. DOTD received three bids, including that of Halmar, which were opened and publicly read on October 29, 1980. Halmar was advised by letter on October 31, 1980, that it had submitted the low bid of $1,680,-835.14, and that the award of the contract or rejection of the bid was being taken under advisement.. In response, Halmar notified DOTD that it had made a clerical error in its bid in that for one of the line items it had written $227 instead of the intended figure of $277,000. The bid as written was tabulated at DOTD’s $1,680,-835.14 instead of Halmar’s intended bid price of $1,907,608.00. Nevertheless, DOTD notified Halmar by letter dated November 24, 1980, that the contract was awarded to it at DOTD’s tabulated bid price. In the meantime, Halmar filed suit on November 12, 1980, alleging the clerical error, and seeking injunctive and declaratory relief. Thereafter, Halmar filed an amending and supplemental petition, seeking a preliminary and permanent injunction to stop the awarding of the contract to any other bidder, to prevent DOTD from taking any action to forfeit Halmar’s bid bond, and to require DOTD to award the contract to Halmar at its intended bid price; and in the alternative, seeking damages.

The preliminary injunction came on for hearing on December 15, 1980, and resulted in the interlocutory judgment granting the preliminary injunction without bond, of which DOTD complains on this appeal.

LSA-C.C.P. art. 3610 specifically requires the furnishing of security for the issuance of a preliminary injunction “. . . except where security is dispensed with by law.” We agree with appellant that since there is no law dispensing with security under the circumstances of this case, the issuance of the preliminary injunction without bond in favor of Halmar is invalid. In Lenfants Caterers, Inc. v. Firemen’s Charitable and Benevolent Association of New Orleans, 386 So.2d 1053 (La.App. 4 Cir. 1980), the Court annulled a judgment which granted a preliminary injunction without fixing and requiring security be furnished by the applicant, stating:

“We have not been cited to any law dispensing with security under the facts of this case, and we know of none. Accordingly, the preliminary injunction here complained of is invalid because it was issued without bond.”

In view of our favorable ruling for the appellant on this issue, it is unnecessary for us to consider the other procedural questions raised by DOTD on this appeal.

For the assigned reasons, we reverse the judgment appealed at the appellee’s costs, annul and set aside the judgment issuing the preliminary injunction, and remand the case to the district court for further proceedings.

REVERSED AND REMANDED.


author: WATKINS, Judge.

text:
    Howard EADS v. A. E. PROBST.
    No. 14311.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      James Farrier, Baton Rouge, for plaintiff-appellant Howard Eads.
    John G. Morgan, Baton Rouge, for defendant-appellee A. E. Probst.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action to obtain repayment of money plaintiff Howard Eads contends he lent defendant A. E. Probst. Defendant contends that the money was paid defendant by Eads to purchase a fractional interest in a partnership, Probst, Peek & Moran, d/b/a 1216 Company. Defendant reconvened, seeking alleged losses to Probst resulting from salvage of a building by Eads. The trial court found that plaintiff and defendant had failed to prove their respective claims by a preponderance of the evidence, and dismissed both the principal and the reconventional demand. Only plaintiff has appealed. We affirm.

Eads was a supervisor in the demolition and salvage of a building owned by the partnership in Fort Worth, Texas, and had done other work for Probst in the past. Eads contends that he lent Probst $7,000.00 because Probst needed cash. Probst contends that Eads purchased a 7% interest in Probst, Peek & Moran. In any event, Eads gave Probst a check in the amount of $7,000.00 drawn on Eads’ account, dated “1-2-78”. The money, if a loan, was never repaid. There is no other relevant testimony. Probst introduced two documents, which while self-serving to some extent, tended to show the $7,000.00 was paid by Eads to purchase a 7% interest in the partnership, which interest was later increased to 20%.

Plaintiff contends that he has proved his case, as a contract for the payment of money of greater than $500.00 value may be proved by the testimony of one credible witness and other corroborating circumstances. LSA-C.C. art. 2277. In the present case, we searched in vain for evidence other than Eads’ own testimony that would tend to establish Eads’ contention that the $7,000.00 was given as a loan. The check itself was introduced, but it is equally supportive of defendant’s contention that there was a purchase of a partnership interest. Certain other less pertinent exhibits were introduced, but they are equally supportive of either contention or theory.

Eads’ testimony was directly contradicted by only that of Probst. Plaintiff appears to contend that as only one witness contradicted Eads’ testimony that there was a loan, and as the loan had been duly proved by Eads’ testimony and other corroborating circumstances (which as we have stated were equally corroborative of either theory), the burden of proving there was not a loan shifted to Probst, and, as only Probst contradicted Eads’ testimony, Probst failed to carry that burden. However, witnesses are weighed, not counted, and although there is only one witness on either side, the trial court may determine for one side or the other based on his weighing the credibility of the two witnesses. Thibo-deaux v. St. Joseph Hospital, 276 So.2d 703 (La.App. 1st Cir. 1973). Here, quite obviously the trial court believed Probst. We cannot say the trial court committed manifest error or was clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973), Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). It must be remembered that LSA-C.C. art. 2277, the basis of Eads’ position, speaks of proving a contract of more than $500.00 with the testimony of one credible witness (and other corroborating circumstances).

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.


author: PONDER, Judge.

text:
    Raymond WOLFE v. Richard JONES, Hughes Tool Co., Inc. and Hartford Ins. Company.
    No. 14312.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    Michael Samanie, Houma, for plaintiff and appellee.
    Edmond J. Harris, Metairie, for defendants and appellants.
    Sheila Moore Gordon, Baton Rouge, for intervenor Dept, of Health & Human Resources, State of Louisiana.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

Defendants appealed an award for general damages and lost wages as a result of an automobile accident. The sole issue is the amount of the award.

We affirm.

Prior to trial on the merits, defendants stipulated that there was no contest as to liability. The trial court awarded $8,000.00 for loss of earnings and $31,500.00 for physical pain and suffering.

Defendants allege three errors: the award of lost wages from April 28 to July 23 were not supported by the evidence; the computation of lost wages based on gross income rather than net income; and the award of an excessive amount for physical pain and suffering.

One medical expert found no disability from April 28, 1979 to July 23, 1979. However, plaintiff was either bedridden or hospitalized for extensive tests by another doctor’s orders. Evidently the trial court believed the latter doctor’s testimony. We do not find this election clearly wrong. Arceneaux v. Domingve, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La.1973).

The contention that the trial court should have used net income rather than gross income in computing damages is also without merit. We have held that the proper way to compute such damages is by using gross income. Moran v. Canal Indem. Ins. Co., 387 So.2d 1243 (La.App., 1st Cir. 1980). See also Reeves v. Louisiana and Arkansas Railway Co., 304 So.2d 370 (La.App., 1st Cir. 1974), writ denied, 305 So.2d 123 (La.1974).

We do not agree that the trial court abused its discretion by granting an excessive award for physical pain and suffering. Plaintiff is a cook who works standing all day. In the accident, he was thrown against the dashboard of his car and suffered various injuries, among them a lum-bosacral strain or sprain. He was hospitalized several times and was required to undergo several painful and dangerous medical procedures. At the very least, plaintiff suffered from a swollen nerve root; there is a likelihood of disc involvement. He is now probably more susceptible to future back injury. In short, under the circumstances, we do not find an articulable abuse of discretion.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of appeal are assessed against defendants-appellants.

AFFIRMED.


author: ELLIS, Judge.

text:
    Zeb HOLLINS v. E. G. EZELL, et al.
    No. 14313.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    C. Alvin Tyler, Stephen O. Labreche, Baton Rouge, for plaintiff-appellant, Zeb Hol-lins.
    George M. Pierson, Baton Rouge, for defendant-appellee, E. G. Ezell, Ranger Realty, Inc. and G & E Homebuilders, Inc.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge.

Plaintiff, Zeb Hollins, brought this suit seeking damages for breach of contract and fraud from defendants, E. G. Ezell; Ranger Realty, Inc.; and G & E Homebuilders, Inc. The case was tried by a judge on September 23, 1980. At the close of plaintiff’s evidence, the trial judge granted defendants’ motion for directed verdict and dismissed plaintiff’s action. From the judgment signed in accordance with the directed verdict, plaintiff has timely appealed.

The facts of this case are very much in dispute. Plaintiff and defendant, E.G. Ezell, testified sharply to different versions of the same incidents.

According to Mr. Ezell, plaintiff approached him in the early part of 1976 concerning the possibility of renting a house located on Ford Street in Baton Rouge. Mr. Ezell informed plaintiff that he owned two houses on Ford Street and instructed him to inspect each of them to determine the one he would like to rent. A few days later plaintiff returned and told Ezell that he would like to purchase the house located at 6470 Ford Street. Upon learning that plaintiff did not have any money for a down payment on the purchase of the house, Mr. Ezell agreed to rent the house to plaintiff for $85 per month. It was also agreed that plaintiff would be allowed to begin making payments to Mr. Ezell toward a down payment on the house and that, when the payments totaled $1,000.00, a sale of the house would be passed. Mr. Ezell stipulated that $150.00 of the down payment would have to be made prior to plaintiff moving into the house on a rental basis.

In his testimony, Mr. Ezell admits having received the initial $150.00 as a partial down payment, in two installments, prior to the date that plaintiff moved into the house. Moreover, the receipts for the $150.00 specify that the installments were being made as a down payment.

Plaintiff, who is illiterate to the extent that hé can neither read nor write, testified that he approached Mr. Ezell for the purpose of buying a particular house on Ford Street. Mr. Ezell informed him that he did not have a sufficient income to purchase the particular home he wanted, but that he could purchase the house at 6470 Ford Street if he desired. After viewing the house, plaintiff returned a few days later and informed Mr. Ezell that he would like to purchase it. In accordance with this verbal agreement, plaintiff tendered to Mr. Ezell $150.00 as a down payment on the purchase price of $7,500.00 and agreed to pay $85.00 per month until the full amount was paid. In support of his testimony concerning the oral agreement, plaintiff introduced the previously mentioned receipts for the $150.00 down payment and receipts for the first two $85.00 monthly payments and a $75.00 payment. These last three receipts indicated that the money was being accepted as “house notes.”

In the summer of 1979, Mr. Ezell sold the house to a third party. When plaintiff received notice from the new owner that his rent would be increased to $175.00 per month, plaintiff moved out of the house and instituted this action for return of the money he had paid toward its purchase.

In his petition, plaintiff alleges that he is entitled to recover damages for defendants’ breach of the contract to sell the property and for the fraud allegedly perpetrated upon him by Mr. Ezell. Plaintiff contends that the receipts from Ezell constitute a written contract to sell the house and that defendants breached this contract by failing to pass title to him. Plaintiff asserts that Mr. Ezell’s fraud consisted of taking advantage of his illiteracy through intentional misrepresentations that led him to believe that he was purchasing rather than renting the house.

As noted earlier, the trial court granted defendants’ motion for directed verdict made at the close of plaintiff’s evidence. In so doing, the court found that plaintiff had proved neither his claim of fraud nor breach of contract by a preponderance of the evidence. Accordingly, the trial court dismissed plaintiff’s suit.

On appeal, plaintiff assigns the following five specifications of error:

1. The trial court, while ostensibly admitting parol evidence, did so without giving it sufficient weight.

2. The trial court, while ostensibly admitting proof of other acts of defendant offered by the plaintiff in order to show fraud, did so without sufficient regard, or failed to give sufficient weight to same.

3. The trial court erred in its failure to give sufficient weight to the evidence provided by the plaintiff due to inappropriate application of LSA CC Article 2275 to exclude parol evidence in this action when the demand was not an attack on the title to the immovable collaterally involved.

4. The trial court erred in disregarding the undisputed evidence offered at the trial that substantial funds were advanced and services rendered by plaintiff, including a down payment of ONE HUNDRED FIFTY ($150.00) DOLLARS.

5. The trial court erred in failing to give consideration to quantum meruit recovery in favor of the plaintiff.

We conclude that the trial court erred in granting defendants’ motion for directed verdict. We recently held that a trial judge is required to apply a preponderance of the evidence standard in ruling on a motion for directed verdict in a non-jury case. Bryan v. Varnado, 394 So.2d 1321 (La.App. 1st Cir. 1981). In the instant case, plaintiff alleged various causes of action which would entitle him to recover damages, if the allegations are proven. One of the grounds for recovery stated in plaintiff’s petition was for the return of the $150.00 given to Mr. Ezell as a down payment on the house. Mr. Ezell admitted he received this money and that it was intended as a partial down payment. Under these circumstances, plaintiff has proved a prima facie case for the return of the $150.00 down payment.

Since plaintiff established a prima facie case for the return of the down payment, the motion for directed verdict should have been denied, and the case should have proceeded to conclusion. Because we so find, a consideration of the other issues raised by plaintiff is unnecessary.

For the foregoing reasons, the judgment of the trial court granting defendants’ motion for directed verdict is reversed and the motion is denied. The case is remanded to the district court for completion of the trial and further proceedings not inconsistent herewith. Costs of appeal are assessed against defendants.

REVERSED AND REMANDED.


text:
    DEVALL TOWN CORPORATION v. Zachary BRANZARU.
    No. 14321.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Robert D. Downing, Baton Rouge, for plaintiff-appellee Devall Town Corp.
    Ronald W. Wall, Baker, for defendant-appellant Zachary Branzaru.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action to recover the expenses incurred by Devall Town Corporation, lessor, in the removal of alterations, debris, and litter left on premises leased to Zachary Branzaru when the building was vacated by lessee, Branzaru. The trial court rendered judgment for plaintiff. We affirm.

Branzaru leased the premises in question, a structure at 136 Main Street, Baton Rouge, from the predecessor in title of De-vall Town Corporation in 1958 for operation of a restaurant. When the written lease expired the lease was extended on a month to month basis by reconduction. Although there is some testimony by Branzaru that the lease was cancelled in 1963 or 1964 and a lease to a different lessee entered into, we view this testimony as an afterthought and unworthy of belief, in view of the fact Branzaru in the pretrial order states, “Defendant (Branzaru) alleged that he leased from plaintiff the subject premises for many years up until 1964 and that thereafter occupied the premises on a month to month basis.”

Defendant abandoned the premises in 1979. Plaintiff corporation was forced to remove a kitchen which had been constructed in an alley outside the original walls and also to remove a facade that defendant had added. The lease provided that “The lessee shall not make any alterations, repairs, changes, or improvements in said premises which require structural changes or alterations in said building without first having secured the written consent of Lessor.” Alterations were made by the lessee involving changing the facade and adding a kitchen in an alley, as we have indicated. The lessor’s consent was never secured, either verbally or in writing. However, it appears that the lessor corporation’s officers may have known that the lessee was making these alterations to the leased premises.

In Faber v. Gay Times, Inc., 267 So.2d 252 (La.App. 4th Cir. 1972) and Ford v. Independent Bakers Supply, Inc., 385 So.2d 580 (La.App. 4th Cir. 1980), it was held that the lessor’s obtaining knowledge of the making of alterations and failing to object to the making of these alterations vitiated the requirement of the lease instrument that the lessor give written consent to alterations, and that therefore the lessor was barred or estopped under those circumstances from obtaining judicial cancellation of the lease. These cases do not alter the principle founded upon Codal provisions that the lessee must restore the leased premises to the condition in which he found them upon termination of the lease. See LSA — C.C. arts. 2719, 2720, which state that the lessee shall restore the leased premises to the state in which he found them, with certain exceptions not here pertinent.

In Dietz v. Superior Oil Company, 252 So.2d 198 (La.App. 3d Cir. 1971), writ denied 259 La. 945, 253 So.2d 383 (La.1971), it was held that the effect of these Codal articles may be altered by the parties only by provision in the lease contract to the contrary. In the present case, the lease agreement contained no language that would either dispense with or limit the duty imposed upon the lessee by the cited Codal articles (C.C. arts. 2719, 2720) to restore the premises to their original condition. Hence, lessee was under a duty to restore the building to its original state when he vacated the premises.

The trial court awarded plaintiff the sum of $6,067.00 for costs of labor and rental of a truck, and other related items paid to remove the alterations to the premises and to remove litter and debris left by the defendant lessee. These items were fully justified. As we have seen, defendant was under a duty to restore the premises to their original condition. He failed to do so. Hence, defendant must pay the expenses incurred by the lessor in restoring the premises to the state in which they existed when the lease instrument was executed.

Defendant also contends that the trial court incorrectly refused to admit in evidence certain building permits, which were then offered by proffer. The trial court refused to admit these documents or exhibits because the pretrial order indicated defendant would introduce no exhibits. However, even if we assume, as defendant contends, that these exhibits were offered for purposes of impeachment, and hence under the rules of the Nineteenth Judicial District Court should not have been excluded, still we find that these exhibits have no effect upon the result we are reaching. Some of the permits, it is true, do name the lessor or its predecessor in title as owner of the premises, but the proffered exhibits do not show that the lessor participated, either actively or passively, in applying for the permits. Hence, even if the proffered exhibits were admissible, they are of no significance.

We, therefore, affirm the judgment of the trial court at appellant’s cost.

AFFIRMED.


author: COLE, Judge.

text:
    Thomas O. LeBLANC v. Linda Spillar LeBLANC.
    No. 14323.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Thomas O. LeBlanc, in pro. per.
    Charles M. Raymond, Baton Rouge, for plaintiff Thomas 0. LeBlanc.
    Richard T. Redd, Baton Rouge, for defendant Linda Spillar LeBlanc.
    Before COVINGTON, COLE and WATKINS, JJ.
   COLE, Judge.

Plaintiff Thomas O. LeBlanc filed suit against his wife Linda Spillar LeBlanc for a separation from bed and board on the ground of abandonment. Judgment was rendered in favor of the husband granting the separation. The wife was awarded custody of the one child of the marriage, along with child support in the amount of $175 per month. No alimony pendente lite was requested at that time. Subsequently, the wife filed a Rule for alimony pendente lite. After the hearing judgment on the rule was rendered in favor of the wife awarding her $400 per month alimony pendente lite. From this judgment the husband appeals raising the issue of the effect to be given the wife’s unwillingness to accept employment contrary to her qualifications. The husband argues the trial court erred in granting the award of alimony pendente lite because plaintiff does not have sufficient means to provide support for the wife and the wife has not demonstrated a need for support because she willfully chooses not to accept employment for which she is qualified.

The record shows the husband and wife operated a child-care center of their own. Prior to and for a short time after the separation was granted, the wife was actively engaged in operating the business. She received a salary of $200 per week and had the use of the business car. At the time of the hearing for alimony pendente lite, the business was in liquidation and Mrs. LeBlanc was working intermittently as a substitute teacher in the Catholic school system. The extent of her earnings as a substitute teacher is not of record but was apparently quite limited.

The wife testified she holds a college degree in early childhood education qualifying her to teach and to take care of nursery centers. She had actively worked in these fields and, additionally, had recently served for a short time as a registered lobbyist. She also testified she chooses not to seek employment in nursery centers in spite of her experience and qualifications because they cannot pay her the salary that is due her.

The husband is employed as an industrial salesman and receives an average, gross monthly income of $1,900. His primary monthly expenses consist of an $850 per month note on the building which housed the child-care center, a $250 note on another piece of property, and the $175 per month child support obligation, totaling $1,255. After payroll deductions of approximately $500 per month, plaintiff retains about $145 each month to cover all expenses, such as housing, food, clothing, transportation, etc.

The applicable law in this matter is La. Civ. Code art. 148, which was amended in 1979 to remove its prior unconstitutional sex-based bias. The law provides:

“If the spouse has not a sufficient income for maintenance pending suit for separation, from bed and board or for divorce, the judge may allow the claimant spouse, whether plaintiff or defendant, a sum for that spouse’s support, proportioned to the needs of the claimant spouse and the means of the other spouse.”

Prior to its amendment in 1979, this article allowed only the wife to obtain alimony pendente lite. The amendment of the article was accomplished after a United States Supreme Court opinion was rendered which rejected similar, sex-based legislation as unconstitutionally discriminatory. Orr v. Orr, 440 U.S. 268, 99 S.Ct. 1102, 59 L.Ed.2d 306 (1979). See also, Lovell v. Lovell, 378 So.2d 418 (La.1979); Smith v. Smith, 382 So.2d 972 (La.App. 1st Cir. 1980).

In view of the foregoing recent history, we see strong and convincing evidence that the present article 148 must be interpreted on an even and non-discriminatory basis. Civil Code article 119 is not now, and has never been discriminatory. To attain the overall goals of our Civil Code, we consider articles 148 and 119 together. La. Civ. Code art. 17.

Article 119, which has remained basically unchanged since its adoption from article 212 of the Code Napoleon of 3804, expresses the clear belief of the redactors that the husband and wife owe to each other mutually, fidelity, support and assistance. Clearly then, when articles 148 and 119 are read together, the only conclusion to be drawn is so long as a marriage persists, either spouse must come to the assistance of the other, if the other is in need thereof.

In view of the recent amendment of article 148, and its relationship to article 119, requiring mutuality of support, the wife may not establish need for alimony pendente lite by merely refusing to work, just as the husband may not escape his obligation of support by merely refusing to work. See, Zaccaria v. Beoubay, 213 La. 782, 35 So .2d 659 (1948); Rakosky v. Rakosky, 275 So.2d 421 (La.App. 4th Cir. 1973), writ denied, 278 So.2d 508; Viser v. Viser, 179 So.2d 672 (La.App. 2d Cir. 1965). To hold otherwise would allow either spouse to quit work, without just cause, merely for the purpose of requiring the other spouse to pay alimony pendente lite. Certainly, such a race to quit work first was not envisioned by the redactors of our laws.

There is no evidence before us establishing the inability of the wife to obtain employment in a nursery center, or the amount normally paid for such services. It may be, even considering the earning potential of the wife in such employment, she would be entitled to at least partial support. Accordingly, at any time the wife is free to again litigate and establish need consistent with the views herein expressed. Alimony is always subject to review pending a change in circumstances and should the wife find it impossible to obtain employment for which she is suited by education or experience, or should such employment not avail her of sufficient funds for her needs, she can again apply to the trial court for relief. Felton v. Felton, 342 So.2d 1135 (La.App. 1st Cir. 1977).

For the above stated reasons, we find the wife has not shown a valid need for alimony pendente lite, considering her recent employment and qualifications. We therefore reverse the holding of the court below.

Appellee is to pay the costs of this appeal.

REVERSED.

      . It appears from the record that the husband, at the time of the hearing, was not in fact paying this $850 note. He testified that he lacked the funds with which to do so.


text:
    Succession of Mrs. Helen Floyd BANKSTON.
    No. 14325.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Edwin C. Schilling, Jr., Amite, for Mrs. Marion Floyd Flowers.
    Joseph H. Simpson, Amite, for Mrs. Chris V. Frey, Mrs. Helen F. Hall, Lester 0. Valentine, and Mrs. Ada F. Valentine.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   PONDER, Judge.

This is an appeal by the executrix of the Estate of Mrs. Helen Floyd Bankston from the judgment recognizing two plaintiffs, Mr. and Mrs. Valentine, as creditors for services rendered.

Appellant lists sixteen issues, which, however, may be combined into the following subjects:

1. Propriety of claims against estate by plaintiffs receiving total of about $70,000.00 in legacies;

2. Abandonment of claims by two plaintiffs;

3. Payment for services to Mr. Bankston and use of parol evidence;

4. Proof of claims for services to Mrs. Bankston;

5. Whether claim was quasi-contract or unjust enrichment;

6. Whether claim was afterthought or stale claim;

7. Whether award to Mrs. Valentine should be offset by donation to her;

8. Assessment of costs;

9. Interest on open accounts;

10. Attorney fees.

We amend and affirm.

Mrs. Valentine was a sister of the deceased. Mrs. Frey is a daughter of the Valentines and Mrs. Hall a granddaughter. Mr. and Mrs. Valentine had moved next door to the Bankstons in 1967. They provided the Bankstons constant assistance until Mr. Bankston’s death in 1977 and thereafter to Mrs. Bankston until her death in 1979. The decedent often promised to pay for these services by making provisions in her will. She did make legacies to Mr. and Mrs. Valentine but in small amounts. The four plaintiffs made claims for services but Mrs. Frey and Mrs. Hall abandoned theirs. The trial court awarded $10,000.00 less an offset of $500.00 to Mr. Valentine and $4,000.00 to Mrs. Valentine. The executrix appealed.

Appellant lumps the legacies to the original four plaintiffs to reach a sum of about $70,000.00 and then contends that Mr. and Mrs. Valentine should not be recognized as creditors because the value of the legacies far exceeds the amount of the claims. No authority for this treatment is cited and we know of none. The relationship of the four original plaintiffs is no justification for treating them as an entity. Furthermore, the claims of two were abandoned. Appellant objected but we know of no bar to this procedure.

Appellant asserts that much of the services rendered were for Mr. Bankston for which he or his succession, not Mrs. Bankston or her succession, would be liable. While undoubtedly some of the services benefitted Mr. Bankston, both Mr. and Mrs. Valentine testified the latter because of the stipulation that her testimony would be the same as Mr. Valentine’s — that they performed the services for Mrs. Bankston. Furthermore, we understand the court’s award to be only for the services rendered to Mrs. Bankston. There is no room for application of the principles of community property law, of res judicata or of the prohibition of parol evidence after one year following death (LSA-R.S. 13:3721).

Appellants’ contention that the requirements of LSA-R.S. 13:3722 were not met is without merit. The trial court expressly found that Mrs. Frey was a creditable witness despite the contention to the contrary, based evidently upon relationship to the Valentines and upon the fact that she had made a claim against the succession. As the court pointed out Mrs. Frey had abandoned her claim, and any obstacle, if one ever existed, had been removed. We find the abandonment to be effective. We agree with the court’s conclusion that the Valentines had proved their claims.

The appellant contends that the trial court erred in granting the Valentines recovery based upon quasi-contract, when they had stated that the claim was based upon unjust enrichment. In Martin v. Bozeman, 173 So.2d 382 (1st Cir. 1965), this court recognized that, in a claim against the succession for services, the doctrines of quasi-contract and unjust enrichment are virtually indistinguishable. Louisiana courts recognize the right of a person to recover compensation for his services from the succession, if it is proven that he rendered the services with the expectation of eventually being compensated. Troxler v. Cubbage, 235 So.2d 170 (4th Cir. 1970); Story v. Story, 131 So.2d 913 (1st Cir. 1961). Since it is necessary in Louisiana to plead only the facts not the theory of the case we find no merit in this conclusion.

The contention that the claims are stale or an afterthought is also without merit. The opposition to the tableau of distribution was filed just two days after the executrix had filed the tableau. Hence the Valentines clearly filled their opposition within the appropriate legal delays. See La.Code Civ.P. Art. 3304.

On the other hand, appellant is correct in contending that the award to Mrs. Valentine should be subject to an offset because of the donation of a strip of land. Story v. Story, supra.

Mr. Valentine (and, through stipulation, Mrs. Valentine) admitted that Mrs. Valentine did receive this property as a donation. However, the executrix introduced no reliable evidence to establish the value of the property. Under cross-examination, Mr. Valentine estimated the value of the land to be approximately $100.00. Accordingly, we will amend the judgment below to allow the succession of a $100.00 credit against the award made to Mrs. Valentine.

The executrix contends that the trial court erred in assessing the entire costs of court to the succession. The trial court is given wide latitude in taxing costs among the parties. La.Code Civ.P. Art. 1920; Succession of Batton v. Prince, 384 So.2d 506, (2nd Cir. 1980). We find no abuse of this discretion.

The executrix asserts that the trial court erred in concluding that the claims included in the tableau of distribution should bear interest. The executrix cites no authority for this contention. We know of none.

The executrix contends that the trial court erred in not granting an increase in attorney’s fees and in the executrix’s fee. She argues that the unexpected litigation occasioned by the filing of this opposition entitles herself and her attorney to the larger fees.

The trial court is vested with the discretion to increase the fees if the complexity of the succession so warrants. Succession of Lasoyne, 395 So.2d 413 (3rd Cir. 1981); Succession of Pierson, 365 So.2d 507 (3rd Cir. 1978). However, the record supports the trial court’s denial of the increased fees.

The Valentines ask for damages for frivolous appeal; however, they neither appealed themselves or answered the executrix’s appeal. Accordingly, the issue of such damages is not before this court. Morial v. Orleans Parish School Board, 332 So.2d 503 (4th Cir. 1976) writ denied 337 So.2d 530; Young v. Warner, 283 So.2d 547 (1st Cir. 1973).

For the foregoing reasons, the judgment of the trial court is amended to allow a $100.00 credit in favor of the succession in the award to Mrs. Ada F. Valentine. In all other respects, the judgment of the trial court is affirmed. Costs of appeal are to be borne by appellant.

AMENDED AND AFFIRMED.

      . LSA-R.S. 13:3722:
      “When parol evidence is admissible under the provisions of R.S. 13:3721 the debt or liability of the deceased must be proved by the testimony of at least one creditable witness other than the claimant, and other corroborating circumstances.” (As amended, Acts 1960, No. 32, Sec. 1)


text:
    James D. WATKINS and Donna F. Watkins v. Gordon R. AMIDON and Mary S. Amidon.
    No. 14326.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.
    George K. Anding, Jr., Baton Rouge, for plaintiffs-appellants James D. Watkins and Donna F. Watkins.
    Richard P. Reina, Denham Springs, for defendants-appellees Gordon R. Amidon and Mary S. Amidon.
    Before COVINGTON, COLE and WATKINS, JJ.
   WATKINS, Judge.

This is an action brought by the vendees of a home against the vendors, to obtain a reduction of the purchase price for failure of the house to contain the square footage so set forth in the listing and marketing agreement. Defendants filed a plea of prescription, which was upheld. We affirm.

The facts of the case and the applicable law are well and clearly set forth in the written reasons for judgment prepared by the trial court. Accordingly, we adopt the written reasons as our opinion, and quote from them in full:

“This case is before the court on an exception of prescription filed by Gordon R. Amidon and Mary S. Amidon (defendants). James D. Watkins and Donna F. Watkins (plaintiffs) purchased a home from the defendants on April 14, 1978. The house was described in the listing agreement as having 2,400 square feet. In late February 1980, the plaintiffs decided to sell said house. When measuring it for preparation of a listing agreement, they discovered that the house measured 2,100 square feet. On March 6, 1980, this suit, seeking damages and a reduction in the price, was filed. The exception of prescription is based on the lapse of two years from the date of sale to the filing of the suit.
“Plaintiffs oppose the exception and argue that the prescriptive period provided for redhibition actions applies to suits for quanti minoris. CC 2546 and Bernofsky v. Schwartz, 270[370]/590 [370 So.2d 590] ([La.App.] 4th, 1979). Said law provides that when a seller has knowledge of the defect in the thing sold, the prescriptive period begins to run with the discovery of the defect by the buyer. Plaintiffs maintain that the seller had knowledge of the ‘defect’ but that it was not discovered by them until February 1980, so this suit, filed less than three weeks later, was timely.
There is no doubt that the defendants had knowledge of the square footage difference because Mary Amidon was also the listing agent who measured the house and provided the footage information. But the critical issue is, when should the plaintiffs be charged with knowledge of the ‘defect’? A 300 square foot difference is the equivalent of a very large room and something that should have been readily apparent. Also, the listing and marketing agreement (Watkins 1) contains the exact dimensions of each room as follows:
Master BR 14x16.6 232.4 Bath lh 5x5 25
BRNo.2 11x12 132 LR 17.6x11.3 198.9
BR No. 3 15x11.7 175.5 DR 13x10.10 131.3
BRNo.4 10.4x11.2 116.5 Kit 12x10 120.0
Dressing 5.5x4 22 Bkf. Rm. 10.2x12.2 124.4
MasterBath 5x7 35 Den 15x22 330
Bath 11x5 55 Foyer 4.6x11.5 52.9
Util. 9x7 63 Storage 214
Total .2,027.9
The total dimensions of these rooms, plus the 214 feet listed as storage, came very close to the 2,100 square feet which is the correct measurement for the house. An error in arithmetic was made. Plaintiffs could easily have calculated the total square footage by simply adding it up as the court has done. Under the circumstances of this case, plaintiffs knew or should have known the dimensions of the house when they purchased it and prescription has tolled on any claim they may have.
For the reasons set forth, plaintiffs’ suit is dismissed at their costs. The expert witness fees are fixed as follows: Kathy F. Marel, $100.00 and R. Hugh Bullard, $100.00.”

The judgment of the trial court is affirmed, at appellants’ cost.

AFFIRMED.


text:
    STATE of Louisiana In the Interest of Christopher (Chris B.) AARON.
    No. 14327.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Kathleen Stewart Richey, Asst. Public Defender, Baton Rouge, for plaintiff-appellant Christopher B. Aaron.
    Kay Howell, Asst. Dist. Atty., Baton Rouge, for defendant-appellee State of Louisiana.
    Before COVINGTON, COLE and WATKINS, JJ.
   COVINGTON, Judge.

This is an appeal from a juvenile proceeding in which Christopher (Chris B.) Aaron, domiciled in East Baton Rouge Parish, was adjudicated a delinquent pursuant to LSA-R.S. 13:1570 A(5).

The petition alleged in three counts that Chris Benedict Aaron, age 15, was delinquent in that on June 26, 1980,

“1.
“said juvenile violated La.R.S. 14:64, in that he robbed a 7-11 Store of $67.00 while armed with a dangerous weapon, to wit: a .38 caliber revolver. Said offense occurred at 2424 O’Neal Lane, Baton Rouge, Louisiana;
“2.
“further, on or about June 26, 1980, said juvenile violated La.R.S. 14:30, in that he attempted the murder of Sgt. Barney McClain of Troup L by firing a double barrel Savage twelve (12) gauge shotgun at said law enforcement officer. Said offense occurred while officers pursued said juvenile east of [on] highway 190 and east towards Mandeville, Louisiana.
“3.
“further, on or about June 26, 1980, said juvenile violated La.R.S. 14:30, in that he attempted the murder of deputy John Dillon by firing a double barrel Savage twelve (12) gauge shotgun at said law enforcement officer. Said offense occurred while officers pursued said juvenile east on highway 190 and east towards Mandeville, Louisiana.”

The trial court found the juvenile guilty on all counts. He was adjudicated delinquent on October 8,1980, and at the disposi-tional hearing on November 21, 1980, he was committed to the custody of the Louisiana Department of Corrections for an indefinite term not to exceed his twenty-first birthday.

On appeal, Aaron urges the following Specifications of Error:

“1. The state failed to prove beyond a reasonable doubt that the appellant had specific intent as to the two counts of attempted murder and the trial court erred in denying the defense motion for a directed verdict of acquittal as to these counts.
“2. There was a complete lack of evidence to the proper venue as concerning the two counts of attempted murder and the trial court erred in denying the defense motion for a directed verdict.”

The appellant first contends that the State failed to produce evidence of guilt beyond a reasonable doubt of every element of the offenses charged in the juvenile delinquency proceeding; consequently, a directed verdict of acquittal was mandated.

The appellant contends that the reasonable doubt standard of review enunciated in Jackson v. Virginia, infra, must be used in the present case. The United States Supreme Court stated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that in federal habeas corpus cases the standard of review of the sufficiency of the evidence is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. This State has now adopted the Jackson standard of review when evaluating allegations by defendants that the prosecution presented insufficient evidence to prove an essential element of the crime charged beyond a reasonable doubt. State v. Abercrombie, 375 So.2d 1170 (La.1979), cert. den. 446 U.S. 935, 100 S.Ct. 2151, 64 L.Ed.2d 787 (1980); State v. Roy, 395 So.2d 664 (La.1981). The burden of proving the charge of delinquency against a juvenile and the standard of review of the sufficiency of the evidence must meet the Jackson standard. See State in Interest of Franklin, 399 So.2d 671 (La.App. 1 Cir. 1981), No. 14,146; In the Interest of LaRocca, 363 So.2d 1325 (La.App. 4 Cir. 1978).

On June 26, 1980, Joseph Jinks, the defendant’s accomplice, entered the 7-11 convenience store on O’Neal Lane in Baton Rouge, Louisiana, at approximately 1:45 a. m. The only employee in the store, Charles Grimm, a night clerk and cashier, saw Jinks exit from the driver’s side of a yellow step van bearing a license plate with the words “Ocean Springs” on it, which was backed up to the front door of the store. Jinks came into the store with a clipboard and told Grimm he had a delivery to make. Grimm told Jinks where the stockroom was, and Jinks walked to the stockroom. Jinks stayed in the store for a few minutes and then exited the store, walking back to the driver’s side of the van. He then came back into the store and bought a Coke.

After a few minutes, the defendant exited the passenger’s side of the van and entered the front door of the store. The defendant walked back to the stockroom and then returned to the front of the store, standing across the counter about four feet from Grimm. The defendant pointed a hand gun at Grimm, who was ordered to get back from the cash register. Jinks then jumped over the counter, opened the cash register, and took the cash (which included an identifiable bill used as “bait money.”)

Jinks then took the store keys and locked the front door; however, he failed to completely engage the locking mechanism. At this point, a car drove into the parking lot. A customer got out and walked to the front door of the store. Jinks and the defendant instructed Grimm to tell the customer the store was closed, and they moved to the rear of the store.

Grimm opened the door and told the customer to run, that a robbery was in progress. Both Grimm and the customer ran from the store. Grimm jumped into the customer’s automobile, which had the key in the ignition, and left the premises, driving a safe distance away. The customer ran to a nearby house. Jinks and the defendant than ran from the store, jumped in the van and drove down O’Neal Lane toward the interstate highway.

Grimm followed the van down O’Neal Lane and was able to get close enough to read the license plate of the van. He then followed it for about one-half mile until a gunshot was fired at him from the van. Grimm then put on his brakes and saw the van go on the ramp to the interstate highway (1-12) heading toward Hammond, Louisiana. Grimm returned to the store, picked up the customer, wrote down the license number of the van, and went to another 7 — 11 store where he reported the crime to the police.

John Dillon, a deputy sheriff of St. Tammany Parish, heard the radio broadcast giving the license number and description of the van involved in the armed robbery. At approximately 3:15 a. m. on June 26, 1980, while he was on patrol, Deputy Dillon observed a van on U.S. Highway 190 which met the broadcast description.

Deputy Dillon signalled for the van to pull over. Rather than obeying the officer’s signal, defendants speeded up. The deputy then chased the fleeing vehicle, attaining speeds up to 90 m. p. h. over a distance of 12 miles.

Sergeant Barney McClain of the Louisiana State Police was patrolling in the vicinity of Louisiana Highway 21 and U.S. Highway 190 when he saw the police unit pursuing the van. The van met the broadcast description of the vehicle involved in the armed robbery. Deputy McClain turned on his signal lights and joined in pursuit.

Deputy Dillon and Sergeant McClain followed the van, with Dillon driving his unit in the left lane and McClain driving his unit in the right lane, in close proximity to the van. The van drove in the center of the two lanes trying to prevent the police units from passing. Deputy Dillon attempted to pass the van on the left four or five times, but each time it would cut to the left and ram the deputy’s unit, attempting to force the unit off the road. McClain then tried to pass the van at the same time as Dillon, and the van swerved in their paths attempting to prevent either unit from passing. McClain also tried to catch the van’s bumper with the push bumpers on his unit, without success.

When the vehicles were approximately two and one-half miles west of Covington, two shotgun blasts (from a double-barrel, 12-gauge shotgun) were fired from the rear of the van at the officers, who were then driving side by side about 50 feet behind the van. One of the blasts went through Dillon’s windshield at a point about four inches above his head. The deputy returned the fire.

As Dillon made one last attempt to pass the van, it turned to the left and struck Dillon’s unit in the center of the right side, causing both the police unit and the van to wreck. Deputy Dillon’s unit had to be pried apart in order to extract the unconscious officer from the unit.

Following the accident, Officers Sanders, Windham and Bullock arrived at the scene. Jinks exited the van first through the rear door. Officer Windham testified that he shined his spotlight into the van and saw Aaron sitting in the passenger’s seat with a shotgun held in his hands in an upright position at an angle of forty-five degrees from his chest. Sgt. McClain ordered the defendant to exit the van, but the defendant refused to do so until Jinks yelled to him. The defendant then got out on the passenger’s side of the van, and was immediately apprehended.

Officer Bullock recovered the double-barrel shotgun, containing two spent shells, from the floor between the driver’s seat and the passenger’s seat. He also recovered $67.00 in cash; one of the bills was the one bearing the identifiable serial number taken in the armed robbery at the 7-11 convenience store.

As stated above, the appellant contends that the trial court erred in denying his motion for acquittal of the two counts of attempted murder, asserting that the State introduced no evidence of specific intent, or in the alternative, that the evidence of specific intent was insufficient to sustain the verdict.

Although intent is a question of fact, it need not be proven as a fact, and may be inferred from the circumstances surrounding the commission of the crime. Consequently, the State may rely on circumstantial evidence to prove this element of a crime. LSA — R.S. 15:445; State v. Custard, 384 So.2d 428 (La.1980); State v. Anderson, 343 So.2d 135 (La.1976); State In Interest of Jordan, 348 So.2d 697 (La.App. 1 Cir. 1977). A specific intent to kill may be reasonably inferred from the defendant’s intentional use of a deadly weapon in the firing of a shot aimed at the intended victim, along with the other circumstances of the case. State v. Lee, 275 So.2d 757 (La.1973); State In Interest of Jordan, supra.

At the close of the adjudication hearing, the trial judge remarked:

“The clerk at the store without equivocation and hesitation, identified Chris Aaron, as the gentleman who pointed a loaded, 38 revolver, during the time of the attempted or during the time of the armed robbery. There is no question in the Court’s mind that Chris Aaron participated in the armed robbery of Mr. Grimm on June 26th, 1980. As to the attempted murder of the law enforcement officers, the evidence establishes in this Court’s mind, beyond any reasonable doubt, that during the high speed chase, Chris Aaron took this 12 gauge, double barrel shotgun and fired twice through the back of that truck, while it was being chased by two clearly marked police vehicles, with flashing red-lights, one of which was employing the use of his siren. This Court is convinced beyond any reasonable doubt that Chris Aaron had the intent to either, kill or inflict great bodily harm upon the officers in those vehicles. The Court is not impressed by the fact that he fired through a closed door. The Court finds and believes that he knew exactly what he was doing because he was accurate, and his accuracy belies any argument that he did not have a specific intent to do exactly what he did. This and all of the evidence in the ease indicates that an armed robbery and an attempted murder — two counts of attempted murder were committed. An armed robbery is a theft of something of value from a person or which is in the immediate control of that person by the use of force or intimidation while armed with a dangerous weapon. There was a theft. Money was taken that did not belong to Chris Aaron. It was taken without the consent of the owner. Under the circumstances, the evidence shows an intent to permanently deprive that person of that money. It was taken from his immediate control by the use of force, that is the pointing of a loaded 38 caliber revolver and that loaded 38 caliber revolver is a dangerous weapon. It is an inherently dangerous instrument and in the manner in which it was used, it was calculated to or likely to produce, death or great bodily harm. The Court believes that had not Mr. Grimm complied with the orders to step back away from the register, Mr. Grimm may not have been here to testify today. That is based on the fact that the Court finds there was an attempt to either kill or seriously injure these law officers. Attempted murder requires a specific intent to kill or inflict great bodily harm and in this case, Article 14, Section 2 should apply, that is upon a peace officer engaged in the performance of his lawful duties or Section three may apply, if specific intent to kill or inflict great bodily harm made upon more than one person. Specific intent is that state of mind which exists when circumstances indicate that the defendant or the accused, actively desired to prescribe criminal consequences to follow his act. And an attempt is an act, is done when one does an act for the purpose of and tending directly toward the accomplishment or the object of the act. These were clearly peace officers, engaged in the performance of their lawful duties. There were two peace officers behind that van. Two shots were fired with a shotgun. From the circumstances, the Court finds that Chris Aaron had an active desire to either kill or inflict great bodily harm upon both officers. He had to know there were two, there were two vehicles. He did an act — he fired the shotgun through the rear of that van twice. There is no doubt whatsoever, in this Court’s mind, that Chris Aaron is delinquent for violation of Louisiana Revised Statute 14:64 — armed robbery. Revised Statute 14:30, the attempted murder of Sgt. Barney McClain and Revised Statute 14:30, the attempted murder of Deputy John Dillon and the Court adjudicates him to be so. The Court orders that a pre-disposition investigation and disposition report and a disposition hearing. He is remanded to detention to await the disposition hearing.”

The facts of this case show that Aaron was an active participant in the armed robbery in which he held a loaded revolver aimed at Charles Grimm, the store clerk. From the manner in which the gun was held pointed at him, the victim testified that he had no doubt in his mind that the defendant would have used it, and he was put in fear of his life. As Grimm was chasing the van after the robbery, a shot was fired at him from the van. During the high-speed chase which ensued, the defendant and his accomplice knew that there were two officers in separate units in close pursuit. The van drove down the center of the two lanes in a deliberate attempt to prevent either unit from passing. The van also was maneuvered from right to left to prevent the two units from passing or stopping the subjects. The occupants of the van knew that one officer was on their left, since they rammed his police unit each time he (Dillon) attempted to pass the van. They also knew that the other officer (McClain) was on the right since he tried to catch their bumper a number of times. The shotgun blasts were fired through the van rear door, directly at the pursuing officers when the occupants knew that the officers were close enough and in a position to be killed. In fact, one of the blasts missed Deputy Dillon’s head by only four inches.

The actions of the subjects in trying to force Deputy Dillon’s unit from the road while he was traveling at speeds up to 90 m. p. h. also indicates that they were willing to kill the officers to avoid capture. They did, in fact, cause Dillon’s unit to crash, injuring him so badly that he was taken, unconscious, to the hospital.

The facts of this ease further show that the appellant was the person who shot at the officers. Following. the wreck, Jinks, the driver, exited from the rear of the van. Sgt. Windham testified that Aaron was crouched in the passenger’s seat holding the shotgun in a “ready” position.

In State v. Carvin, 308 So.2d 757 (La.1975), our Supreme Court held that there was sufficient evidence from which the jury could reasonably infer that the defendant had fired a gun at the victim where there was some evidence that the defendant was actually driving a car matching the description of the vehicle involved in the incident despite no evidence actually placing the defendant at the scene of the shooting.

Our review of the record convinces us that, viewing the evidence in the light most favorable to the State, a rational trier of fact could have found beyond a reasonable doubt that Aaron fired the shots at Officers Dillon and McClain in an attempt to murder both officers. Under the facts of this case, as presented in the trial court, the State proved beyond a reasonable doubt that Aaron was guilty of attempted first degree murder of the police officers. There is no merit in the appellant’s first specification of error.

Next, the appellant argues that the State has failed to prove venue as to the two counts of attempted murder. The appellant was tried as a juvenile delinquent. He was domiciled within East Baton Rouge Parish, Louisiana, where he was accused of violating a state law. Under LSA-R.S. 13:1570 A(5), which implements La.Const. 1974, Art. 5, § 18, the East Baton Rouge Parish Family Court was a proper forum in which to hold this delinquency proceeding. Moreover, the venue article of the Code of Juvenile Procedure specifically provides that a proceeding in which a child is alleged to be delinquent may be commenced in the parish in which the child is domiciled. See LSA-C.J.P. art. 18. Juvenile delinquency proceedings do not fall within the category of criminal prosecutions. See State in Interest of Batiste, 367 So.2d 784 (La.1979). There is no constitutional requirement that all procedures of a criminal trial be imposed in a juvenile delinquency proceeding. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); State In Interest of Dino, 359 So.2d 586 (La.1978). Venue at the place of the commission of the crime which forms the basis of the criminal proceeding is not among the essentials of due process and fair treatment accorded or required during juvenile delinquency proceedings. In any event, the appellant was found guilty of committing armed robbery in the Parish of East Baton Rouge. The commission of this crime clearly makes venue in East Baton Rouge proper. There is no merit in this specification of error.

Accordingly, the judgment of the Family Court is affirmed.

AFFIRMED.


text:
    Emmett D. TATE, et al. v. Linda L. REA, et al.
    No. 14329.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 12, 1981.

      Duncan S. Kemp, III, Hammond, for plaintiff-appellants Emmett D. Tate, Elmer H. Steward and Hugie Palmer.
    William J. Wegmann, Jr., New Orleans, for defendant-appellee Linda L. Rea.
    J. Rodney Ryan, Jr., Baton Rouge, for defendant-appellee Associated Indemnity Corp.
    Tim A. Tullos, Baton Rouge, for defendant-appellee State Farm Mutual Ins. Co.
    Before ELLIS, LOTTINGER and PONDER, JJ.
   ELLIS, Judge.

This suit for personal injury damages emanates from a two-ear collision which occurred on April 21, 1978. Plaintiffs are Emmett D. Tate, operator of one of the vehicles, and his two guest passengers, Elmer H. Steward and Hugie Palmer. Plaintiffs initially instituted suit on November 21, 1978, naming as defendants Linda L. Rea, the driver of the other vehicle, and her liability insurer, Fireman’s Fund Insurance Company.

On August 15,1980, almost two years and four months after the accident, plaintiffs filed an amending and supplemental petition which added Tate’s underinsured motorist insurer, State Farm Mutual Insurance Company, as a defendant. State Farm responded to the supplemental petition by filing an exception of prescription. The trial court sustained the exception and dismissed State Farm as a defendant. Plaintiffs then perfected the instant appeal.

In sustaining the exception, the trial court relied upon Louisiana Revised Statute 9:5629, which provides:

“Actions for the recovery of damages sustained in motor vehicle accidents brought pursuant to uninsured motorist provisions in motor vehicle insurance policies are prescribed by two years reckoning from the date of the accident in which the damage was sustained.”

This statute was enacted in July 1977, was published in the state’s official journal on August 8, 1977, and became effective July 1, 1978. Hence, the accident which gave rise to the instant suit occurred subsequent to enactment and publication of the statute but prior to its effective date. If the provisions of the statute are retroactively applicable to this case, plaintiffs’ cause of action against State Farm prescribed on April 21, 1980, and their supplemental petition, filed on August 21, 1980, was untimely. The trial court found that the statute should be applied retroactively and, accordingly, that plaintiffs’ cause of action against State Farm had prescribed.

On appeal, plaintiffs contend that the trial court erred in sustaining State Farm’s exception of prescription. In so contending, plaintiffs argue first that the retroactive application of the statute is unconstitutional in that it divests them of a vested right. In the alternative, plaintiffs assert that, even if the retroactive application of the statute is constitutional, their cause of action has not prescribed because prescription was interrupted by the filing of their original petition. This latter argument is based on the assumption that State Farm, as Tate’s uninsured motorist insurer, is a soli-dary obligor with the original defendants, Rea and Fireman’s Fund.

Addressing plaintiffs’ latter argument initially, we note that plaintiffs rely on Louisiana Civil Code Article 2097 in support of their argument that filing suit against Ms. Rea and Fireman’s Fund served to interrupt prescription against State Farm. We do not agree.

Before two or more persons may be liable in solido, they must each be responsible for the same debt. La. Civ. Code Art. 2092. From the very nature of uninsured motorist coverage, the insurer is not liable for the same debt as the tortfeasor and his insurer. See La.R.S. 22:1406. Accordingly, we reject plaintiffs’ contention that prescription against State Farm was interrupted by the original filing of suit against Ms. Rea and Fireman’s Fund.

Plaintiffs also contend that the trial court erred in applying Louisiana Revised Statute 9:5629 retroactively. Prior to the statute’s enactment, it was jurisprudentially settled that the prescriptive period for uninsured motorist claims was ten years from the date of the accident. See Booth v. Fireman’s Fund Insurance Company, 253 La. 521, 218 So.2d 580 (1968). As noted above, Louisiana Revised Statute 9:5629 reduces to two years the prescriptive period for such suits. If the statute is retroactively applicable to the instant case, plaintiffs’ cause of action against State Farm has prescribed, since it was more than two years after the accident before State Farm was joined as a defendant.

It is the general rule that statutes of limitation are to be applied retroactively. Lott v. Haley, 370 So.2d 521 (La.1979): State v. Alden Mills, 202 La. 416, 12 So.2d 204 (1943). However, before it may be so applied, the statute must provide a reasonable period after enactment for the filing of suits based upon pre-existing causes of action. Lott v. Haley, supra. In Lott, the court considered the retroactive application of Louisiana Revised Statute 9:5628, which provides a three-year prescriptive period for the filing of medical malpractice suits. In recognizing the requirement for a grace period for instituting suit on extant causes of actions, the court stated the following:

“[I]n the instant case, La.R.S. 9:5628 operates to eliminate plaintiff’s vested right to sue on his pre-existing cause of action without providing a reasonable period following its enactment to assert his claim. Absent such a provision, we conclude that La.R.S. 9:5628 cannot be retroactively applied in the instant case because to do so would divest plaintiff of his vested right in his cause of action in violation of the due process guarantees under the state and federal constitutions. The court of appeal erred in holding otherwise.” 370 So.2d at 524.

In the recent case of Tilley v. Government Emp. Ins. Co., 396 So.2d 525 (La.App. 3rd Cir. 1981), the court applied the principles enunciated in Lott to a consideration of the retroactive application of Louisiana Revised Statute 9:5629. The court in Tilley indicated that the approximately nine months between publication of the statute and its effective date was a sufficient length of time to satisfy the requirements set out in Lott. The court also noted that plaintiff had a total of one year and nine months after publication of the statute to file his suit. The court then concluded that, under the circumstances of the case, the retroactive application of the statute was constitutional and did not deprive plaintiff of a vested right.

While not necessarily agreeing with the result reached in Tilley based upon the facts thereof, we do agree with the approach taken to resolve the issue. In the instant case, plaintiffs had approximately two years and eight months subsequent to publication of the statute to file their suit. Moreover, plaintiffs had approximately one year and ten months after the statute became effective to institute their action. Under the facts and circumstances presented herein, which represent a longer grace period than that which existed in the Tilley case, we conclude that plaintiffs had a reasonable period of time in which to file their suit. Accordingly, we hold that the trial court’s application of Louisiana Revised Statute 9:5629 did not operate to divest plaintiffs of a vested right.

We are aware of our decision in Johnson v. Fournet, 387 So.2d 1336 (La.App. 1st Cir. 1980), which is cited by plaintiffs in their brief to this court. In Johnson we held that the retroactive application of Louisiana Revised Statute 9:5629 in that case would unconstitutionally divest plaintiff of a vested right, and, accordingly, we reversed the trial court’s judgment sustaining an exception of prescription. However, we were careful to limit our holding in Johnson to the facts and circumstances of that case. The different result which we reach in the instant case is justified by the significantly longer period of time in which plaintiffs had to file their suit herein than that in Johnson.

For the foregoing reasons, the judgment of the trial court sustaining the exception of prescription is affirmed. Costs are assessed to plaintiffs-appellants.

AFFIRMED.