author: OTT, Judge.

text:
    The PEOPLE OF the STATE OF ARKANSAS, on Behalf of Krajab SMITH and Krajab Smith, Appellants, v. James E. SMITH, Appellee.
    No. 80-1264.
    District Court of Appeal of Florida, Second District.
    May 27, 1981.

      Geraldyne H. Carlton of Carlton & Carlton, P. A., Lakeland, for appellants.
    No appearance for appellee.
   OTT, Judge.

The Smiths were married in Thailand December 11, 1974, and Mrs. Smith gave birth to a child on August 30, 1975. In 1978 Mr. Smith obtained a divorce in the State of New York. Mrs. Smith did not appear or defend in that proceeding. The final judgment in that court was silent as to the custody and support of the child. Such questions were referred to the Family Court of New York for determination. The record does not reflect the results in that court.

The instant proceeding was initiated by Mrs. Smith in Arkansas to obtain child support under the provisions of the Uniform Reciprocal Enforcement of Support Act (URESA). At the hearing on the order to show cause returnable before the circuit court of Pasco County, Mr. Smith appeared with an attorney and orally (and for the first time) denied paternity of the child. The objections of the assistant state attorney representing Mrs. Smith, who was not present, were overruled, as was his motion for a continuance so that Mrs. Smith could come to Florida from Arkansas and testify. Later the court entered a “Final Judgment Concerning Support” which found that Mr. Smith was not the father of the child and therefore had no duty to support it.

The state filed appropriate motions for a new trial and also to set aside the judgment under rule 1.540, Florida Statutes, and supported its motions with a showing that newly discovered evidence indicated that Mr. Smith had alleged in his New York divorce petition, and the court there had specifically found, that the child in question was indeed the issue of the marriage. Nevertheless, the trial court in the instant case denied all motions and the state has prosecuted this appeal. We reverse.

The better solution would have been a continuance of the hearing on the order to show cause to afford the state (and the mother) an opportunity to meet the paternity issue injected orally by Mr. Smith at that hearing. Unfortunately, the time for appeal had run before the state discovered the full nature of the New York proceedings.

If the state can prove that the New York court determined as a matter of fact that this child is the issue of the Smith marriage, that issue could not be further litigated between the parties, and the courts of this state would be bound to give full faith and credit to that determination. Under the circumstances, we think the court below erred in failing to set aside the judgment so as to permit the state an opportunity to fully present its case on the paternity issue.

The judgment is reversed and the case remanded for a new hearing in accordance with this opinion.

BOARDMAN, Acting C. J., and CAMPBELL, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles E. THOMSON, Appellant, v. STATE of Florida, Appellee.
    No. 80-1675.
    District Court of Appeal of Florida, Second District.
    May 27, 1981.

      John M. Walters, St. Petersburg, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Peggy A. Quince, Asst. Atty. Gen., Tampa, for appellee.
   PER CURIAM.

Charles E. Thomson appeals an order of criminal contempt entered by Judge Andrews for appellant’s failure to appear for the call of the criminal calendar on September 10, 1980. We reverse.

Appellant is an attorney in private practice. On Monday, September 8, 1980, William H. O’Neal, who was facing trial on several serious charges, including an armed robbery, appeared in court and told Judge Andrews that his parents had retained appellant to represent him. The assistant public defender representing O’Neal moved to withdraw from the case, but the judge denied the request and continued the trial until September 10 because appellant and the judge had had a telephone conversation earlier that day in which appellant had indicated he would not be representing O’Neal.

At approximately 4:30 p. m. on September 9, appellant talked by telephone with the assistant state attorney prosecuting the case against O’Neal. Appellant felt he might be able to negotiate a plea bargain for O’Neal, who had already been convicted in another case and received a seventy-five-year sentence. The assistant state attorney explained that the offer he had made to the public defender was that O’Neal would receive concurrent sentences not to exceed the seventy-five-year sentence he had already received. Appellant left the assistant state attorney with the impression that appellant would be in court the following morning, September 10, for further discussion of the possibility of achieving a plea bargain.

At about 5:30 p. m. on September 9, O’Neal’s parents arrived at appellant’s office. Appellant discussed the case with the parents and concluded that since he could do no better for their son than the negotiated plea already offered to the assistant public defender, he did not want to take their money. He had taken a fifty dollar deposit and was holding four automobile titles as security for the balance of the attorney’s fee. Appellant discussed the matter with the parents, indicating that he would not be representing their son and would return the automobile titles. He asked that the parents talk to O’Neal the next day. Appellant presumed that the parents would tell the court of his decision not to represent their son.

At 8:30 a. m. on September 10, Judge Andrews called the calendar, and appellant failed to appear as attorney for O’Neal. The assistant state attorney told the judge that he understood that appellant would appear that morning. The assistant public defender was confused as to his representation of O’Neal, although he was still counsel of record. The judge directed the sheriff to pick up appellant and bring him to court.

At 11:15 a. m. on September 10, Judge Andrews convened a show-cause hearing in chambers, appellant having appeared voluntarily after his office notified him of the requested appearance. Appellant explained the situation, adding that he had been in another court in St. Petersburg that morning and apologizing to the court for the problem. Judge Andrews made an oral finding

that you have been so lackadaisical in this whole matter that your conduct in my mind as of 8:30 this morning when you failed to appear for this trial and in light of the conversation you had with Mr. Merkle [the assistant state attorney] yesterday afternoon, giving the only person involved in the case the understanding that you were still counsel of record that you have placed yourself in contempt of this Court and you now have an opportunity to show cause why you should not be found in contempt for your failure to appear here this morning at the time of the scheduled trial after having agreed to and having undertaken the representation of Mr. O’Neal. You now have the opportunity to show cause Mr. Thomson.
MR. THOMSON: I understand, your Honor, you mean other than what I have told the Court that is exactly what my involvement has been in the case, I filed no formal notice of appearance when I also spoke to Mr. Merkle yesterday I informed him that my client did not have alot [sic] of money, I was going to be unable to do anything with him more than the Public Defenders, and I didn’t want to represent them or represent Mr. O’Neal.
MR. MERKLE: I am sorry, what was that statement?
MR. THOMSON: Pardon?
MR. MERKLE: May I have that read. (Reporter reads back statement.)
MR. MERKLE: That is not — that does not comport with my recollection of the conversation. My recollection he did state there was a lack of funds on the part of the O’Neals but he did state he was going to attempt to assist, he would be talking to Mr. O’Neal. Specific aspect of the conversation was the fact Mr. O’Neal had insisted to the Court he would not cooperate with the Public Defender and that counsel would be in a position to at least communicate with Mr. O’Neal and counsel did unequivocally state he was going to be present and would talk to Mr. O’Neal in an attempt to achieve negotiations in the case.
THE COURT: Okay, Mr. Thomson. No lawful cause having been shown and your having failed to offer good cause why you should not be found in direct contempt of this Court for your refusal and failure to appear this morning for trial, causing the Court to direct the Sheriff’s Office to bring your body before the Court, which I assume may have been some incentive for you to finally appear, the Court does find you in contempt and you are sented [sic] to serve a period of five days in the Pinellas County Jail. Sheriff.
THE BAILIFF: Yes, sir. Mr. Thomson.
MR. THOMSON: Yes, your Honor, can I ask for a bond to be posted?
THE COURT: There will be no bond.

A written contempt order was entered that same day, which recited that appellant was “in direct Contempt of Court for failure to advise the Court as to his representation of the defendant in the case of the State of Florida vs. William H. O’Neal.... ” The next morning appellant filed a motion for postjudgment release, which was denied. This appeal followed timely.

It is unclear whether the act Judge Andrews considered contempt was appellant’s failure to advise the court concerning his representation of O’Neal or appellant’s failure to appear for O’Neal’s trial earlier that morning. In either event, however, we are of the opinion that the contempt judgment cannot stand.

If, as stated in the written order, the contempt consisted of appellant’s failure to appear, the evidence is insufficient to support the judgment. An act which is calculated to embarrass, hinder, or obstruct a court in the administration of justice, or which is calculated to lessen its authority or dignity constitutes a contempt, Clein v. State, 52 So.2d 117, 119 (Fla.1950); Ex parte Crews, 127 Fla. 381, 173 So. 275 (1937). Intent is an essential element of contempt. Florida Ventilated Awning Co. v. Dickson, 67 So.2d 218 (Fla.1953); Young v. Miami Beach Improvement Co., 46 So.2d 26 (Fla.1950); Department of Health & Rehabilitative Services v. State, 338 So.2d 220 (Fla. 4th DCA 1976). Although appellant’s conduct does appear, as a practical matter, to have hindered the trial court in its efforts to dispose of the O’Neal ease as quickly as possible while affording O’Neal sufficient time to prepare his defense, the evidence falls far short of establishing that appellant intended his failure to appear for trial to have that effect.

Intent, absent a statement thereof or an admission by the accused, which is not present here, must be inferred from the acts of the accused and the surrounding circumstances, State v. J. T. S., 373 So.2d 418 (Fla. 2d DCA 1979); i. e., it must be established by circumstantial evidence. Where circumstantial evidence alone is relied on to establish the commission of a crime or any essential element thereof, it must be inconsistent with any reasonable hypothesis of innocence. McArthur v. State, 351 So.2d 972 (Fla.1977). Here the evidence was equally susceptible of the inference that appellant merely behaved negligently or irresponsibly in relying on O’Neal’s parents to explain the situation to the trial court rather than himself notifying either the judge’s office or the assistant state attorney of his intention not to appear on behalf of O’Neal. Appellant therefore cannot be guilty of criminal contempt.

Moreover, if the act constituting appellant’s alleged contempt consisted of his failure to notify the judge himself or the assistant state attorney of his intention not to appear, which we think was, in fact, the real omission to which Judge Andrews objected, the contempt, if any, must necessarily have been indirect contempt. In order to be treated as a direct contempt, the act constituting the contempt must be committed in the immediate presence of the court, whereas a contemptuous act committed out of the presence of the court constitutes indirect contempt. Sharp v. Sharp, 209 So.2d 245 (Fla. 2d DCA 1968); In re S. L. T., 180 So.2d 374 (Fla. 2d DCA 1965). Since notification by appellant of the assistant state attorney or the judge’s secretary would have been as satisfactory as his speaking personally to the judge himself, and this notification would have been given out of Judge Andrews’ immediate presence, it is clear that appellant’s failure to notify anyone other than O’Neal’s parents could not possibly constitute a direct contempt.

Florida Rule of Criminal Procedure 3.840 governs indirect criminal contempt. The procedural due process safeguards set forth therein were not complied with here. No order to show cause was issued, nor was appellant apprised prior to the hearing of the essential facts constituting the alleged contempt, as required by rule 3.840(a)(1). Judge Andrews’ failure to adhere to the requirements of the rule mandates reversal of the contempt judgment. Pugliese v. Pugliese, 347 So.2d 422 (Fla.1977).

For the foregoing reasons the judgment of contempt is REVERSED.

HOBSON, Acting C. J., and BOARD-MAN and OTT, JJ., concur.

      . We presume that the September 9 filing date stamped on the order is incorrect.

      . We assume on the basis of the appellate record that appellant has already served his sentence, so that this court is foreclosed from sparing him that. Absent some legitimate concern on the part of Judge Andrews that appellant might seek to avoid serving his sentence should this court affirm — a concern which may or may not have actually existed — we consider the judge’s refusal to release appellant on bond pending appeal an abuse of judicial discretion.

      . The “evidence” before Judge Andrews consisted of unsworn statements by appellant, Merkle, and O’Neal’s mother.


author: WATSON, Justice.

text:
    Samuel L. LIEBER v. Durward RUST.
    No. 80-C-2514.
    Supreme Court of Louisiana.
    April 17, 1981.
    Rehearing Denied May 29, 1981.

      Frank S. Kennedy, Rellis P. Godfrey, Kennedy, Goodman & Donovan, Shreveport, for plaintiff-applicant.
    Joseph L. Hargrove, Jr., Joseph L. Shea, Jr., Hargrove, Guyton, Ramey & Barlow, Shreveport, for defendants-respondents.

       DIXON, C. J., and BLANCHE, J., would grant a rehearing.

   WATSON, Justice.

This is a dispute between adjoining property owners on the shore of Cross Lake about the proper location of a pier and boathouse. Plaintiff, Samuel L. Lieber, filed suit when defendant, Durward Rust, commenced construction of a wharf which angles across the water in front of Lieber’s property.

The trial court dismissed plaintiff’s suit, and the Court of Appeal affirmed the judgment. Lieber v. Rust, 388 So.2d 836 (La. App. 2 Cir. 1980). A writ of review was granted to plaintiff. 395 So.2d 812 (La., 1980).

The shore area of navigable Cross Lake, the space between the water and the contour line, is a public thing. By Act 31 of 1910, the legislature authorized sale of the lake bed from the State to the City of Shreveport for use as a water reservoir. Act 39 of 1926 granted the City control of the shore area up to the 172 foot contour line.

Lieber and Rust own contiguous lots one and two in unit number two, Willow Ridge Subdivision. Each lot extends on the lake side to the 172 foot contour line, which is the line of demarcation between the private owners and the City. State v. Bozeman, 156 La. 635, 101 So. 4 (1924). The lots are subject to recorded title restrictions which provide in part that:

“Boat houses, fishing piers and other construction extending into Cross Lake shall be permitted to exist on, from, or connected to any lot with prior written approval of the Architectural Control Committee subject however to full compliance with all ordinances and regulations of the City of Shreveport.”

By coincidence, Lieber and Rust are two of the three members of the Architectural Control Committee. There are no standards to govern this Committee’s discretion. Approval of the Committee is by majority vote. According to Weyman Oden, Jr., the developer of the six lot subdivision and the third member of the committee, there are no specific standards for construction of piers and boathouses because:

“... The thought and idea of the whole thing was to encourage the use of materials on boathouses that would blend with the natural lake setting and surroundings.” (Tr. 87)

Rust did not apply for approval of his boathouse by the Committee.

Shreveport Ordinance No. 40 of 1964 granted its Department of Public Utilities control of all improvements on Cross Lake and its shore. It provides:

“The property owners adjacent to Cross Lake shall have the exclusive right to the use of the area which abuts their property and lies between the 172 foot contour line and the water level of Cross Lake, providing that all rules and regulations, restrictions and reservations, including waiver of any claims against the City of Shreveport, Louisiana, for injuries or damages, are agreed to by said property owners.
“Piers, boat houses and docks for the exclusive use of their owners will be authorized within the 172 foot contour line by permit only. These structures will be subject to the approval of the Department of Public Utilities and must be maintained in good repair.
******
“Piers and wharves, stationary and/or floating, and other facilities extending into the Cross Lake reservoir will be limited to a maxium (sic) total length of not more than 300 feet, perpendicular to the water line, from the 172 foot contour line

The water line and the contour line tend to be parallel, although both are uneven lines. A concrete retaining wall marks the approximate location of the contour line.

On August 9, 1978, Rust acquired a permit for the construction of his boathouse and pier from Robert William Calhoun, the Superintendent of Cross Lake Patrol, by authority of the Department of Public Utilities. The patrol directed where the structure should be placed; construction was completed at that location. Rust’s pier and boathouse are below the 172 foot contour line, entirely within the area owned by the city and completely outside the subdivision. If Lieber’s property lines are extended past the 172 foot contour line into the lake, a portion of the Rust pier is within their boundaries.

These lots are located on a concave curve of a shallow lake. Superintendent Calhoun testified that a permit was required, for the following purposes:

“To be sure that no one gets blocked off. And tiy to have it where each one can have access to the lake. See, you have a lot of lots that run in at an angle. Therefore, we have to turn — we—they can’t run down their line and straight out into the lake. If you did, there’d be a lot of people that wouldn’t get access to the lake.” (Tr. 177)

Bill Guin, civil engineer for the Department of Public Utilities responsible for the supervision of Cross Lake, testified that the city tried to create equity among the lot owners around this cove so that each could build a pier. “In so doing, I had to sacrifice perhaps a view.” (Tr. 189)

Calhoun Allen, Commissioner of Public Utilities at the time the ordinance was passed, testified that this pier is not perpendicular to the water line or the contour line, but that section of the ordinance cannot be applied when the extended property lines intersect. The exact angle of the pier with the water or contour line is not in evidence; the exhibits indicate the variation from the perpendicular is not substantial.

Lieber’s assignments of error raise three issues for decision:

(1) Is Rust required to remove his pier for failure to obtain approval of the subdivision’s Architectural Control Committee?
(2) Was Rust’s permit and construction in violation of Ordinance No. 40 either because (a) it is not perpendicular to the contour line or (b) it encroaches on Lieber’s exclusive right to use the area in front of his property?
(3) Does Lieber have a predial servitude which entitles him to view Cross Lake without obstructions on the shore or water?

VIOLATION OF BUILDING RESTRICTIONS

The City has statutory authority to regulate the shore and bed of Cross Lake. This includes authority over the placement of piers in that area. However, the subdivision owners agreed that any piers constructed would also be approved by their representatives on the Architectural Control Committee. The purpose of this restriction was to prevent the construction of unsightly structures detracting from the ambiance of the area. However, Lieber does not complain that the pier is an inferi- or structure, only that it is placed where he does not want it located. The City exercised its paramount right to dictate the location. There is no evidence that the Rust Pier and boathouse are offensive except for their placement. Plaintiff’s complaint is not directed toward a question within the competence of the Architectural Control Committee. Therefore, Rust’s failure to obtain approval of the Committee is immaterial.

VIOLATION OF SHREVEPORT ORDINANCE NO. 40 OF 1964

The placement of this boathouse is not arbitrary or capricious merely because it is not “perpendicular to the waterline, from the 172 foot contour line”. Ordinance No. 40 of 1964. Because of the curvature of the lake, the piers cannot all be perpendicular to the water line or the contour line. Adding to the problem is the uneven line of the shore. The variation from the perpendicular here is a de minimus thing. Depending on the point of origination, plaintiff could be either helped or hurt by a more perpendicular structure.

The ordinance grants the property owners the exclusive right to use the property between the contour line and the water, but it is clear from the language that this right is subject to the City’s regulation and control. The right of use in not unrestricted. The City could not grant the landowners an unsupervised use without violating its statutory mandate to protect the lake. Compare Evans v. Dugan, 205 La. 398, 17 So.2d 562 (1944).

SERVITUDE OF VIEW

Lieber contends that Ordinance No. 40 of 1964 created a predial servitude of view. LSA-C.C. art. 716. However, there is no evidence that the City of Shreveport has established a servitude of view in favor of the landowners around the lake. View is a continuous, apparent servitude which can be established only by title, destination of the owner or acquisitive prescription. There is no evidence that the landowners have acquired a servitude of view. LSA-C.C. arts. 727, 728, 765. Even if such a servitude were established, it would not necessarily apply to a structure in the adjacent lake. A building prohibition servitude, being continuous and nonapparent, can be established only be title. LSA-C.C. art. 766. See Bernos v. Canepa, 114 La. 517, 38 So. 438 (1905). Plaintiff is not entitled to an entirely unobstructed view of the lake. See LSA-C.C. art. 668.

The city determines, upon request, where structures extending into Cross Lake will be located. Although there may have been other feasible locations for this boathouse, the city’s placement was not arbitrary or capricious. Judicial interference is not warranted.

For the foregoing reasons, the judgment is affirmed.

AFFIRMED.

       Honorable Gerald P. Federoff participated in this decision as Associate Justice Ad Hoc in place of Associate Justice Fred A. Blanche, Jr.

      . Act 31 of 1910 provides:
      “Authorizing the Register of Land Office to sell and convey to the City of Shreveport, the bed of what is known as Cross Lake in the Parish of Caddo, and fixing the terms and conditions of such sale, reserving to the State of Louisiana all minerals and mineral rights on and under said lands.
      “Section 1. Be it enacted by the General Assembly of the State of Louisiana; that in pursuance to due and legal notice published in the Parish of Caddo of the intention to apply for the passage of this law, due proof having been made thereof to this body; That the Register of the State Land Office be and he is hereby authorized and empowered as hereinafter provided to sell and convey to the City of Shreveport, a municipal corporation in the Parish of Caddo, all that portion of land belonging to the State of Louisiana in what is known as the bed of Cross Lake, particularly that portion of the bed of said lake embraced within the traverse lines thereof in Section 25, Township 18, north, Range 16 west; Sections 20, 21, 28, 29, 30, 31,32 and 33 in Township 18 north, Range 15 west and Sections 5 and 6, 1 and 2 in Township 17 north, Range 15 west, and Sections 23, 24, 25, 26, 27, 34, 35, 36, Township 18 north, Range 15 west, and Sections 28, 29, 30, 31, 32, 33, 34 of Township 18 north, Range 14 west, and Sections 4, 5, 6 and 7 of Township 17 north, Range 14 west, for the purpose of enabling said city to provide a water supply of good, pure and wholesome water for the citizens of the City of Shreveport, Louisiana, as now constituted or hereafter extended reserving to the State of Louisiana all minerals and mineral rights on and under said lands.
      “Section 2. Be it further enacted, etc., That immediately after the termination of the suit of the Cross Lake Shooting and Fishing Club, Plaintiff in Error, vs. The State of Louisiana, No. 443 of the October Term 1909 of the Supreme Court of the United States, in the event said suit shall terminate favorably to the State and its title to said lands herein above described involved in said suit be maintained, it shall be the duty of the Register of the Land Office to cause accurate surveys to be made of the bed of said lake, at the expense of the said City of Shreveport, and embrace within the traverse lines thereof to determine the acreage of said land, and on the payment to him, by the City of Shreveport or its legal representatives of the sum of One Dollar per acre for each acre of land so embraced within the traverse lines of said lake in the sections, townships and ranges mentioned, he shall convey to the said City of Shreveport the said lands above described, embracing what is now the unsurveyed lands in the bed of said Cross Lake, and thenceforth the said lands shall become vested in the said City of Shreveport for the purposes and subject to the conditions of this Act, and the net funds arising from said sale after payment of the fees of the Register of the Land Office and the cost, expenses and attorney’s fees incurred by the State in the aforesaid suit to maintain the title of the State to said lands shall be placed to the credit of the Board of Commissioners of the Caddo Levee District.
      “Section 3. Be it further enacted, etc., That the said lands so conveyed to the City of Shreveport shall be used by it as a reservoir or storing basin for water to be used by said city for the purpose of supplying itself and its citizens with a good and wholesome supply of water, and should the said City of Shreveport fail to utilize the said bed of said lake for said purpose within ten years from the date of the passage of this Act or afterward should ever cease to utilize it for said purpose, then the said land shall revert back and become the property of the State of Louisiana, subject to the repayment to the City of Shreveport of the purchase price but without any interest.
      “Section 4. Be it further enacted, etc., That the City of Shreveport in the protection and conservation of its water supply is hereby granted full and plenary power over the said lake and may make such rules and regulations for the government thereof as its City Council may from time to time determine, and may enforce such rules and regulations by fíne or imprisonment as is now provided for the enforcement of its ordinances under its charter and amendments thereto.
      “Section 5. Be it further enacted, etc., That all laws or parts of law, contrary to or in conflict with this Act, be and the same are, hereby repealed.”

      . Act 39 of 1926 provides:
      “To authorize and empower the City of Shreveport to adopt, exercise and enforce police and sanitary regulations and ordinances over the bed and waters of Cross Lake and the area surrounding same with its tributaries for a distance of five thousand feet from the 172 foot mean gulf level contour line of said lake for the protection of the same from pollution and contamination as a water supply for the City of Shreveport. “Whereas due notice has been given of the intention to apply for the passage of this Act by publication for thirty days and proof has been made of said publication to Legislature as required by Article IV, Section 6 of the Constitution of 1921;
      “Section 1. Be it enacted by the Legislature of Louisiana, That the City of Shreveport is hereby granted full power and authority to adopt and enforce all needful police and sanitary ordinances and regulations for the protection of the bed and waters of Cross Lake purchased from the State of Louisiana for a water supply and now in use as such from pollution and contamination from any source and is likewise granted similar power and control over the area surrounding said lake for a distance of five thousand feet from the Meander Contour Line, which extends to the 172 foot mean gulf level as well as over the streams and tributaries of said lake, so as to prevent its pollution, contamination or destruction by salt water, refuse, filth, or from any other cause that would in any manner whatsoever endanger or render harmful or unsanitary the use of the waters of the Lake by the citizens of the City of Shreveport. That the City shall have the right and authority through its Board of Health, Public Safety Department, Public Utilities Department, or otherwise, to inspect all of said property and the drainage area of said Cross Lake and to enforce its ordinances and regulations by fine or imprisonment through the proper Courts of the State of Louisiana.”

      . LSA-C.C. art. 716 prior to its 1977 amendment provided:
      “Servitudes of view are of two kinds; one which confers the right of full view with the power of preventing one’s neighbor from raising any buildings which obstruct it, and the other which gives an owner the right of preventing his neighbor from having any view or lights on the side on which their estates unite, or that he exercise these servi-tudes according to his title.”

      . LSA-C.C. art. 727 prior to its 1977 amendment provided in pertinent part:
      “Servitudes are either continuous or discontinuous.
      “Continuous servitudes are those whose use is or may be continual without the act of man.
      “Such are aqueducts, drain, view and the like.... ”

      . LSA-C.C. art. 728 prior to its 1977 amendment provided:
      “Again, servitudes are either visible and apparent or nonapparent.
      “Apparent servitudes are such as are to be perceivable by exterior works; such as a door, a window, an aqueduct.
      “Non-apparent servitudes are such as have no exterior sign of their existence; such, for instance, as the prohibition of building on an estate, or of building above a particular height.”

      . LSA-C.C. art. 765 prior to its 1977 amendment provided:
      “Continuous and apparent servitudes may be acquired by title, or by a possession of ten years. The public, represented by the various parishes in this State, may also in like manner acquire a servitude by the open and public possession and use of a road for the space of ten years, after the said road or servitude has been declared a public highway by the Police Jury, provided that such servitude so acquired shall not extend beyond the width of forty feet.”

      . LSA-C.C. art. 766 prior to its 1977 amendment provided:
      “Continuous nonapparent servitudes, and discontinuous servitudes, whether apparent or not, can be established only by a title. “Immemorial possession itself is not sufficient to acquire them.
      “Immemorial possession is that of which no man living has seen the beginning, and the existence of which he has learned from his elders.”

      . LSA-C.C. art. 668 provides in pertinent part:
      “ * * * Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of his neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.”


author: DIXON, Chief Justice.

text:
    Marie T. HANNON et al. v. Richard L. EDRINGTON et al.
    No. 81-C-0062.
    Supreme Court of Louisiana.
    May 18, 1981.
   ORDER

DIXON, Chief Justice.

Considering the above and foregoing Motion:

IT IS ORDERED that the writ of review presently pending before this Court in the captioned matter, La., 396 So.2d 919, be and same is hereby dismissed as of settlement and compromise.


text:
    Thomas F. GLOVER d/b/a Glover’s Realty Company v. Ron HANKS and Charles Dennis.
    No. 80-C-2353.
    Supreme Court of Louisiana.
    Nov. 10, 1980.
   In re Thomas F. Glover, applying for writ of certiorari or review, to the Court of Appeal, First Circuit. Parish of Terre-bonne. City Court of Houma. 396 So.2d 949.

Denied.


text:
    STATE of Louisiana ex rel. Elbert STEWART v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2110.
    Supreme Court of Louisiana.
    Jan. 26, 1981.
   In re Elbert Stewart, applying for writs of certiorari, prohibition, mandamus, and habeas corpus. Parish of Caddo. No. 105,-812-HC.

Denied.


text:
    STATE of Louisiana ex rel. Danny WELCH v. Frank C. BLACKBURN, Warden.
    No. 80-KH-1552.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Danny Welch, applying for writs of habeas corpus, certiorari, prohibition, mandamus and supervisory. Parish of Orleans. No. 257-211.

Denied.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. STATE of Louisiana.
    No. 81-KH-0172.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Garrett Decatur Richardson, applying for remedial writ. Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Emmett HICKERSON v. Rudolph BECKER, III, Judge, Criminal District Court.
    No. 80-KH-2486.
    Supreme Court of Louisiana.
    Feb. 13, 1981.
   In re Emmett Hickerson, applying for remedial writ. Parish of Orleans. No. 251-474.

Denied.


text:
    STATE of Louisiana ex rel. David MONROE, Jr. v. Warden Frank BLACKBURN et al., Louisiana State Penitentiary.
    No. 80-KH-2603.
    Supreme Court of Louisiana.
    Feb. 20, 1981.
   In re David Monroe, Jr., applying for writ of habeas corpus. Parish of Ouachita. No. 37969.

Writ denied.


text:
    George CITIZEN v. THEODORE DAIGLE & BROTHER et al.
    No. 81-C-0156.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re George Citizen, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Acadia. 392 So.2d 741.

Granted.


text:
    P. H. A. C. SERVICES, INC. v. SEAWAYS INTERNATIONAL, INC., Pennzoil Company and Pennzoil Producing Company. ACOUSTICAL SPRAY INSULATORS, INC. v. PENNZOIL COMPANY, et al.
    No. 81-C-0366.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Pennzoil Company and Pennzoil Producing Company, applying for certiora-ri, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 393 So.2d 117.

Granted.


text:
    P. H. A. C. SERVICES, INC. v. SEAWAYS INTERNATIONAL, INC., Pennzoil Production Co. ACOUSTICAL SPRAY INC. v. PENNZOIL COMPANY et al.
    No. 80-C-2928.
    Supreme Court of Louisiana.
    March 27, 1981.
   In re Acoustical Spray Insulators, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of St. Mary. 393 So.2d 117.

Granted.


text:
    STATE of Louisiana ex rel. David MONROE, Jr. v. Warden Frank BLACKBURN et al. Louisiana State Penitentiary.
    No. 80-KH-2603.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re David Monroe, Jr., applying for reconsideration of denied writ of February 20, 1981. Parish of Ouachita. No. 37969.

Writ Denied.


text:
    STATE of Louisiana ex rel. Emmett HICKERSON v. Judge Rudolph BECKER, III, Orleans Criminal District Court.
    No. 80-KH-2486.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Emmett Hickerson, applying for reconsideration of denied writ of February 13, 1981.

Denied


text:
    Joe BERRY v. LIVINGSTON ROOFING COMPANY et al.
    No. 81-C-0506.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Joe Berry, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 242.

Granted.


text:
    CITY OF MONROE v. Albert Nation DAY.
    No. 81-K-0102.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Albert Nation Day, applying for writs of certiorari. Parish of Ouachita.

Granted. Transferred to District Court to be considered as an appeal. See R.S. 13:1896.B.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. STATE of Louisiana.
    No. 81-KH-0172.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Garrett Decatur Richardson, applying for reconsideration of denied writ of February 13, 1981. Parish of Orleans.

Denied.


text:
    In the Matter of the Succession of Irma Wilson REEVES.
    No. 81-C-0599.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Julius W. Cole, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 166.

Intervenor’s application denied.


text:
    Succession of Melissa Mary RAIFORD.
    No. 81-C-0552.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Floyd Lavigne, applying for writ of review, to the Court of Appeal, First Circuit. Parish of Tangipahoa. 393 So.2d 398.

Writ granted.


text:
    RAMSEY CONSTRUCTION COMPANY, INC. v. Wayne P. BUNCH et al.
    No. 81-C-0560.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Ramsey Construction Company, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 199.

Denied.


text:
    Lydia RICHARDSON v. LOUISIANA FARM BUREAU MUTUAL INSURANCE CO. et al.
    No. 81-C-0562.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Louisiana Farm Bureau Mutual Insurance Co., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Ascension. 393 So.2d 200.

Denied. The result is correct.

MARCUS, J., would grant the writ.


text:
    Harold Glenn SCOGGINS, and Marie B. Scoggins v. Charles B. SMITH et al.
    No. 81-C-0507.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Harold Glenn Scoggins, ex ux., applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 175.

Denied.

LEMMON, J., would grant the writ.


text:
    Nicholas F. BROCATO and Linda K. Brocato v. Doctor Anthony B. LEGGIO, M. D. et al.
    No. 81-C-0452.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Nicholas F. Brocato and Linda K. Brocato, applying for writs of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 183.

Writ denied.

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


text:
    Donna MARYLAND v. WINN-DIXIE, LOUISIANA, INC.
    No. 81-C-0550.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Donna Maryland, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Terrebonne. 393 So.2d 316.

Denied.

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


text:
    Jack Floyd HALL v. Millard SMITH.
    No. 81-C-0551.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Jack Floyd Hall, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 382.

Denied.

DIXON, C. J., and DENNIS and LEM-MON, JJ., would grant the writ.


text:
    Quincy ADAMS, Executor of the Succession of B. J. Adams v. Floyd CARTER, Executor of the Succession of Winnie Carter Adams.
    No. 81-C-0565.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Quincy Adams, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 393 So.2d.253.

Denied.


text:
    Noel Hood REED v. DEPARTMENT OF PUBLIC SAFETY, OFFICE OF STATE POLICE.
    No. 81-C-0582.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Noel Hood Reed, applying for cer-tiorari, or writ of review, to the Court of Appeal, First Circuit. Civil Service Commission. 393 So.2d 157.

Denied.


text:
    CLEGG CONCRETE, INC. v. KEL-BAR, INC. and Donald Kenaley.
    No. 81-C-0600.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Clegg Concrete, Inc., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 178.

Denied.


text:
    George A. FLOURNOY v. Susan Burnham FLOURNOY.
    No. 81-C-0686.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Susan Burnham Flournoy, applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 392 So.2d 1096.

Denied.


author: LEMMON, J.,

text:
    James E. BREAUX v. George N. MAY.
    No. 81-C-0601.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re George N. May, applying for certio-rari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Lafayette. 392 So.2d 1089.

Denied.

LEMMON, J.,

would grant and remand to trial court for introduction of parole evidence to explain ambiguity in contract.


text:
    John Brock BUNCH v. Sam BOYET.
    No. 81-C-0581.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Sam Boyet, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of Washington. 393 So.2d 760.

Denied.


text:
    DOW CHEMICAL COMPANY v. CENARD OIL & GAS COMPANY et al.
    No. 81-C-0558.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Dow Chemical Company, applying for certiorari or writ of review, to the Court of Appeal, First Circuit. Iberville Parish. 394 So.2d 1298.

Denied.


text:
    Ralph T. THORNHILL, Indiv. and As Administrator of the Estate of His Minor Son, Allen Arthur Thornhill v. BLACK, SIVALLS & BRYSON, INC. et al.
    No. 80-C-2585.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Allen Arthur Thornhill, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 391 So.2d 1256.

Denied.

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


text:
    Gary L. EWING et ux. v. Bernard C. SANSON et al., and Hartford Accident & Indemnity Co.
    No. 81-C-0559.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Hartford Accident & Indemnity Co., applying for writ of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Rapides. 394 So.2d 849.

Dismissed on relator’s motion.


text:
    Alias SMITH et al. v. PLACID OIL COMPANY et al.
    No. 81-C-0553.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Donald Johnson and Bobby Verrett, applying for certiorari, or writ of review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 393 So.2d 266.

Denied.


text:
    STATE of Louisiana ex rel. Danny WELCH v. Frank C. BLACKBURN, Warden.
    No. 80-KH-1552.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Danny Welch, applying for reconsideration of denied writ of February 3, 1981. Orleans Parish. No. 257-211.

Denied.


text:
    STATE of Louisiana ex rel. James William MARSH v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary et al.
    No. 81-KH-0623.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re James William Marsh, applying for writs of certiorari, habeas corpus, and remedial writs. Parish of St. Charles. No. 79-211.

Denied.


text:
    STATE of Louisiana ex rel. Darrell Glenn MOSS v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0655.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Darrell Glenn Moss, applying for remedial writs. Parish of Ouachita. No. 38677.

Denied.


text:
    STATE of Louisiana v. Leo DOLEY.
    No. 81-K-0678.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for writ of certiorari. Parish of Orleans. No. 279-253.

Denied.

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


text:
    OLD RIVER TERMINAL CO-OP v. DAVCO CORPORATION OF TENNESSEE et al.
    No. 81-C-0684.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Industry General Corporation and Davco Corporation, applying for writs of certiorari, prohibition and mandamus. Parish of Pointe Coupee. No. 15938.

Denied.

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


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0689.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re McArthur Johnson, applying for writ of habeas corpus. Parish of Orleans. No. 54-874.

Denied.


text:
    STATE of Louisiana ex rel. Paul J. THOMAS, Jr. v. Hayden J. DEES, Warden, Dixon Correctional Institute.
    No. 81-KH-0692.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Paul J. Thomas, Jr., applying for writ of mandamus. Parish of Rapides. No. 180533.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Allen CROSBY v. CRIMINAL DISTRICT COURT, SECTION E PARISH OF ORLEANS.
    No. 81-KH-0694.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Allen Crosby, applying for writs of review, certiorari and stay order. Parish of Orleans. No. 271-972.

Writ denied.


text:
    STATE of Louisiana ex rel. James JOHNSON v. STATE of Louisiana.
    No. 81-KH-0724.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re James Johnson, applying for writs of certiorari, prohibition, and mandamus. Parish of Jefferson. No. 80-1275.

Denied.


text:
    STATE of Louisiana ex rel. Ulysses HEBERT v. Honorable Arthur J. PLANCHARD, Judge, Criminal District Court, Parish of Calcasieu, State of Louisiana.
    No. 81-KH-0725.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Ulysses Hebert, applying for writ of mandamus. Parish of Calcasieu. No. 5639-78.

Denied. A hearing has been ordered and no further action is required by this Court.


text:
    STATE of Louisiana v. Harry LUCAS.
    No. 81-K-0768.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Harry Lucas, applying for writs of certiorari, prohibition and mandamus. Parish of Tangipahoa. No. 44394.

Denied.


text:
    STATE of Louisiana ex rel. Wayne GORDON v. STATE of Louisiana.
    No. 81-KH-0790.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Wayne Gordon, applying for remedial writ. Parish of Orleans.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Joseph R. SIEGEL v. FRANK C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0350.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Joseph R. Siegel, applying for remedial writs. Parish of East Baton Rouge. No. 1-74-8052B.

Denied.


text:
    STATE of Louisiana ex rel. Joseph R. SIEGEL v. Frank C. BLACKBURN, Warden.
    No. 81-KH-0402.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Joseph R. Siegel, applying for remedial writs. Parish of East Baton Rouge. No. 10-74-4658.

Denied.


text:
    STATE of Louisiana ex rel. Robert WILKERSON v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary, and the State of Louisiana.
    No. 81-KH-0466.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Robert Wilkerson, applying for writ of habeas corpus. Orleans Parish. No. 312-411.

Denied.


text:
    STATE of Louisiana ex rel. Floyd A. ST. ANDRE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 81-KH-0476.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Floyd A. St. Andre, applying for writ of habeas corpus. East Baton Rouge Parish.

Writ denied.


text:
    STATE of Louisiana ex rel. Nathaniel JOHNSON v. Frank C. BLACKBURN, Warden.
    No. 81-KH-0514.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Nathaniel Johnson, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 57-063.

Denied.


text:
    STATE of Louisiana ex rel. Melvin BOWMAN v. Hayden J. DEES, Warden.
    No. 81-KH-0520.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Melvin Bowman, applying for remedial writs. Parish of Orleans. No. 275-631, Sect. J.

Denied.


text:
    STATE of Louisiana v. Patrick O. DEVILLE.
    No. 81-K-0564.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Patrick 0. Deville, applying for writs of certiorari, prohibition and mandamus. Parish of Evangeline.

Denied.


text:
    Dean PLAISANCE v. Melanie PLAISANCE.
    No. 81-C-0567.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Dean Plaisance, applying for certio-rari, or writ of review, to the Court of Appeal, First Circuit. Parish of Lafourche. No. 13893.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Brent SCROGGS v. Warden Frank C. BLACKBURN, Louisiana State Penitentiary.
    No. 81-KH-0573.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Brent Seroggs, applying for writ of mandamus, habeas corpus, certiorari and prohibition or other remedial writ. Parish of Orleans. No. 171-757.

Denied.


text:
    STATE of Louisiana v. Sylvester DANIEL.
    No. 81-K-0583.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Sylvester Daniel, applying for writs of certiorari and review. Parish of Jefferson. No. 80-139.

Denied.


text:
    STATE of Louisiana ex rel. Eillis A. GUILLOT v. Frank BLACKBURN, Warden.
    No. 81-KH-0598.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Ellis A. Guillot, applying for writ of habeas corpus. Parish of Jefferson. No. 74-554, Division E.

Denied.


text:
    STATE of Louisiana ex rel. Phillip MALVEAUX v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2640.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Phillip Malveaux, applying for remedial writs. Parish of Evangeline. No. 12372.

Denied.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. STATE of Louisiana.
    No. 80-KH-2963.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re McArthur Johnson, applying for writ of habeas corpus. Parish of Bossier. No. 54874.

Denied.


text:
    STATE of Louisiana ex rel. Ezzard BOWMAN v. 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, Baton Rouge, Louisiana.
    No. 81-KH-0064.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Ezzard Bowman, applying for writ of mandamus. Parish of East Baton Rouge.

Denied. Moot.


text:
    STATE of Louisiana ex rel. McArthur JOHNSON v. STATE of Louisiana.
    No. 81-KH-0080.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re McArthur Johnson, applying for writ of habeas corpus. Parish of Bossier. No. 54874.

Writ denied.


text:
    STATE of Louisiana ex rel. Eric I. WHITE v. Honorable Frank A. MARULLO, Jr., Judge, and Honorable Edwin Lombard, Clerk of Court.
    No. 81-KH-0256.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Eric I. White, applying for writ of mandamus. Parish of Orleans. No. 275-205.

Writ denied.


text:
    STATE of Louisiana ex rel. Elbert STEWART v. Warden Frank BLACKBURN, Louisiana State Penitentiary.
    No. 80-KH-2110.
    Supreme Court of Louisiana.
    April 6, 1981.
   In re Elbert Stewart, applying for reconsideration of denied writ of January 26, 1981. Parish of Caddo. No. 185,812-HC.

Denied.


text:
    STATE of Louisiana In the Interest of Randy Lee BOWLING.
    No. 81-C-0910.
    Supreme Court of Louisiana.
    April 8, 1981.
   In re Mr. and Mrs. Gary Adams, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. No. 12245. Parish of Jefferson.

Writ granted. It is further ordered that all proceedings herein be stayed and that the record be forwarded to this Court forthwith.

MARCUS, J., dissents from the stay order.


text:
    STATE of Louisiana v. Sammy HUFFMAN.
    No. 81-K-0947.
    Supreme Court of Louisiana.
    April 13, 1981.
   In re Sammy Huffman, applying for writ of review and stay order. Parish of Terre-bonne. Nos. 87635, 87636 and 99977.

Denied.


text:
    STATE of Louisiana v. Marie WILLIAMS.
    No. 81-K-0996.
    Supreme Court of Louisiana.
    April 16, 1981.
   In re State of Louisiana through the District Attorney, Harry F. Connick, applying for supervisory writs and stay order. Parish of Orleans. No. 109-575M-1.

Stay order recalled.


text:
    STATE of Louisiana v. Luis Carlos BONNELS.
    No. 81-K-1015.
    Supreme Court of Louisiana.
    April 16, 1981.
   In re Luis Carlos Bonnels, applying for writs of mandamus, prohibition, and mandamus. Parish of Jefferson. No. 81-1146.

Writ granted. The trial judge is ordered to hold a preliminary hearing forthwith.

The writ is otherwise denied.


author: STOKER, Judge.

text:
    ROPER GMC, INC., Plaintiff-Appellant, v. Ralph WARREN and Bonnie Warren, Defendants-Appellees.
    No. 8128.
    Court of Appeal of Louisiana, Third Circuit.
    April, 15, 1981.
    Stanford B. Gauthier, II, Breaux Bridge, for plaintiff-appellant.
    Domengeaux & Wright, Anthony D. Mor-oux, uafayette, for defendants-appellees.
    Before CULPEPPER, FORET and STOKER, JJ.
   STOKER, Judge.

Appellant Roper GMC, Inc., seeks the payment of $1,000.00 as the cash portion of the purchase price of a 1979 GMC Pickup Truck. Defendants-appellees purchased this vehicle for a purchase price of $5,720.00. Taxes, fees, license and title, insurance, and a financing charge brought the total payment to $7,701.92. Negotiations called for defendants to pay the total amount by a trade-in allowance of $1,000.00, a cash down payment of $1,000.00, and the giving of a note secured by a chattel mortgage for the balance. The transaction was entered into. Plaintiff-appellant claims that defendants-appellees never paid the cash down payment. Appellant’s suit seeks payment of the cash down payment.

Defendants-appellees filed an answer denying the allegations of the petition and specially pleaded payment as an affirmative defense. Defendants-appellees then filed a motion for summary judgment. They filed documents designated as D-l and D-2 which they refer to as authentic acts. The motion for summary judgment asserts that the “documents reflect that $1,000.00 cash was paid at the time of the sale and that no parol evidence is admissible to prove otherwise ...”.

The document designated as D-l is merely an invoice which lists the proposed price and charges together with the proposed mode of payment. Under “settlement” opposite the word “deposit” the figure “$1000.00” appears. Without more we cannot discern how this document could be given any probative effect. It is urged that document D-l was signed by a salesman for plaintiff-appellant and notarized. The invoice marked D-l is a copy of the original duplicated by some mechanical means. The notary’s signature is partially blocked out in the duplicating process. Apparently a rubber stamp was used and below what purports to be the signature of the notary there appear several letter characters which may be a partial impression made by the rubber stamp intended to read “Notary Public”. Aside from the mechanical deficiencies of the claimed notarization, we question whether the so-called notarization resulted in the invoice becoming an authentic act. Defendants-appellees seem to think this document is an authentic act. If the original stamped impression with the blanks filled in could be read, it would appear as follows:

“ROPER GMC, INC.
BY: s/s Ronald J. Fontenot
Sworn to and subscribed before me this
5th day of September 1977
[Illegible signature of notary!
Notary Public”

Inasmuch as the invoice expresses no language of contract, we are not certain that the so-called notarization has any significance at all. In any event, as we stated above, we do not think that the mere showing of the figure “$1,000.00” opposite the word “deposit” can be given any legal significance in connection with defendant’s motion for summary judgment.

Appellees movers’ document D-2 is a sale and chattel mortgage which conveys the vehicle purchased from appellant to appel-lees. In form it is an act under private signature duly acknowledged. The document purports to give a breakdown or listing of all elements including the price, charges and mode of payment. Without any introductory language, certain numbered entries, notations and written provisions appear. The first, second, third of these are as follows:

"1. CASH PRICE (including any accessories, services and taxes imposed on the cash sale).$5956.00
2. TOTAL DOWNPAYMENT - $1000.00 plus $1000.00 Trade-in 1974 Pinto. .$2000.00 Trade-in (Net) Cash Downpayment Make, Model, Year
3. UNPAID BALANCE OF CASH PRICE (Difference between Items 1 and 2) .$3956.00.”

With reference to the promissory installment note given by the purchasers the sale and chattel mortgage recites that the notary who passed the act paraphed the note for identification with the act of sale and chattel mortgage. The act also states that the note “has been delivered to the vendor who acknowledges receipt thereof.” We find no similar statement in the act indicating any delivery of the $1,000.00 cash down payment or any acknowledgement of receipt of that sum in cash. Therefore, giving full effect to document D-2, we do not find that it proves or establishes in and of itself that the Warrens as purchasers paid the $1,000.00 or that Roper GMC, Inc., received that sum from them.

Inasmuch as neither D -1 nor D • 2 actually establishes payment of the down payment, other evidence would not actually vary or contradict the terms of the two instruments. No inconsistency would result in showing that the cash portion of the price was never paid. It is clear that where sales of immovables are involved in which the conveyance is executed in the form of an authentic act, which recite that the seller acknowledges receipt of payment of the consideration stipulated in the act of sale, such sales cannot be attacked by a party to the act on the ground that the consideration was not actually paid, unless the attacking party alleges fraud, mutual error or force or unless the party challenging the payment produces written evidence in the nature of a counterletter or unless the lack of consideration is indicated by answers to interrogatories or requests for admissions of act. Durham v. Evans, 377 So.2d 423 (La.App. 2nd Cir. 1979) and cases cited therein.

In Elrod v. Le Ny, 193 So.2d 299 (La.App. 4th Cir. 1967) plaintiff sought to have the sale of two parcels of real estate declared null and void. A motion for summary judgment in favor of the defendant was affirmed on the basis of the principle set forth above. Although the sale befoi’e us does not involve an immovable, the principle would nevertheless apply if the same essential elements were contained in the act under private signature.

The case before us is distinguished from Durham v. Evans, supra, and Elrod v. Le Ny, supra. In those cases the seller acknowledged receipt of the consideration as part of the recitation of the authentic act. Here there was no acknowledgement of receipt. Plaintiff is not seeking to set aside the sale but rather seeks to enforce its terms. Admission of parol evidence would not violate its terms. As a genuine issue of fact exists, the judgment of the trial court must be reversed.

For the reasons assigned the judgment of the trial court is reversed and the case is remanded to the trial court for further proceedings consistent with the views expressed herein. The costs of this appeal are assessed to defendants-appellees.

REVERSED AND REMANDED.

      . Under LSA-R.S. 13:3719 such acts “shall be deemed, taken and accepted, prima facie, and without further proof, as being true and genuine, and shall be so received and accepted in evidence in the courts of Louisiana, without further proof.”


author: LOTTINGER, Judge.

text:
    James WILLIAMS, William M. Johnson, Urias Banks, Ernest Grant, Sr., Golden Jones and Thomas Harris v. Milton OSBORNE, Jr., Individually and as President of Iberville Industrial Voters League, Inc., and Iberville Industrial Voters League, Inc.
    No. 13227.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 10, 1979.

      Murphy W. Bell, Baton Rouge, for plaintiffs-appellees James Williams, et al.
    Milton Osborne, Jr. of Osborne & Richard, Plaquemine, for defendants-appellants Milton Osborne, Jr., et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   LOTTINGER, Judge.

This is a suit seeking a declaratory judgment to nullify an election of officers of a nonprofit corporation, to order a new election and to obtain injunctive relief. The trial judge denied the injunctive relief, declared the election null and ordered a new election. The defendants filed a suspensive appeal and posted bond. Subsequently they applied for writs to this court from the trial judge’s vacating of the suspensive appeal order. On the application for writs this court, on October 16, 1979, issued a writ of certiorari ordering the record transmitted to this court on or before November 16, 1979.

Plaintiffs, without alleging that they were members of the defendant organization, sued Milton Osborne, Jr., individually and as president of the Iberville Industrial Voters League, Inc. (Voters League) and the Voters League alleging that an election of officers held on June 3, 1979, was improperly held for various reasons. The petition prayed that the election be nullified and that the defendants be ordered to conduct a new election. Additionally, the petition alleges that the defendant, Voters League, owned real estate and other securities which, if encumbered, alienated or disposed of by “this alleged slate of newly elected officers,” will result in irreparable harm to the membership. Plaintiffs thus request a preliminary injunction to enjoin the defendants from encumbering, alienating or disposing of any of the assets. The petition does not ask for a permanent injunction, but only for a preliminary injunction. A show cause hearing on the preliminary injunction was ordered for July 2, 1979.

To the petition, various exceptions were filed. Defendant, Milton Osborne, Jr., contends that he was improperly joined “individually” as a party defendant. Additionally, the exception of prematurity was filed because no permanent injunction had been prayed for. Vagueness and nonjoinder of necessary parties, i. e., secretary and treasurer of the Voters League, were also alleged. The peremptory exception of no right of action was also filed contending that the plaintiffs failed to allege or reveal a justiciable interest in the suit.

From the transcript of the show cause hearing on July 2, it is apparent the trial judge sustained the exception of no right of action and of improper joinder of Milton Osborne, Jr., individually. It is unclear whether the trial judge sustained the exception of prematurity as to the preliminary injunction, or merely denied the injunction, but be that as it may, no preliminary injunction was issued. The trial judge then fixed the trial on the merits for August 13, 1979.

Plaintiffs filed an amended petition on July 6 curing the no right of action exception, but failed to amend as to the dilatory exception of misjoinder. In the absence of an answer being filed, plaintiffs entered a preliminary default on August 8, 1979.

Defendants contend that they did not learn until the day of trial that the trial judge was going to conduct a hearing on the merits. They argued before the trial court that all defects as pointed out in the exceptions and sustained by the trial judge had not been cured by amendment, thus defendants could not be compelled to file an answer and the trial could not proceed. The trial judge apparently concluded that the August 13 hearing was a continuation of the rule to show cause hearing. He then ordered plaintiffs to file an amendment to the petition, and gave defendant approximately a couple of hours to answer. Defendants objected contending that they wanted to file a reconventional demand and take depositions, and therefore they could not be ready for trial that day. Regardless, when the trial court was ready to proceed, the trial judge asked defense counsel if he was ready, and his response was, “I have no choice, Judge.”

After the trial court rendered judgment on August 13 nullifying the election and ordering a new one, defendants presented a “motion and order for suspensive appeal” on September 11. The trial judge signed the order, and the suspensive appeal bond was filed on September 18. On September 24, plaintiffs moved to recall and set aside the order for a suspensive appeal citing La.C.C.P. arts. 2088 and 3612. At a hearing to determine whether the suspensive appeal order should be recalled, the trial judge recalled the.order on September 26, and converted the appeal to a devolutive one.

We issued a writ of certiorari primarily to determine whether the trial judge was correct in recalling the suspensive appeal.

In their brief, plaintiffs rely on La.C.C.P. art. 2088(4) and (7) for the trial judge’s authority to recall the suspensive appeal.

We are of the opinion that this appeal is not from an injunctive proceeding. Plaintiffs sought injunctive relief to prevent the wasting of assets. This was abandoned when they only asked for a preliminary injunction and never asked that a permanent injunction ultimately issue. As such, the delay for taking an appeal as provided in La.C.C.P. art. 2123 applies, and the suspensive appeal and bond were timely-

Once the order of appeal is signed and bond filed in case of a suspensive appeal, the jurisdiction of the trial court is divested except as to certain enumerated instances listed in La.C.C.P. art. 2088. We do not find that this situation falls within any of those exceptions, particularly La.C. C.P. art. 2088(4) and (7). Therefore, we find the trial judge was in error in recalling and vacating the suspensive appeal.

We also find the trial judge in error in ordering defendants to file an answer immediately after plaintiffs amended their petition to cure the defect of misjoinder of parties. It is clear that the defendant has a minimum of “ten days after service of the amended petition” within which to file an answer. La.C.C.P. art. 1001. We do not believe a trial court can force an instanter answer in disregard of Article 1001.

The defendants were not required to answer the petition until it had been properly amended after the trial court sustained the dilatory exception of misjoinder of parties. Thus, the preliminary judgment by default entered on August 8,1979, can have no validity and should be stricken from the minutes of the court. La.C.C.P. art. 1701.

In ordering the defendants to immediately file an answer, the trial judge indicated that the August 13 hearing was a continuation of the rule to show cause, and thus an answer was not necessary. The rule to show cause was only to determine whether a preliminary injunction should issue. At the same hearing exceptions filed by defendants were taken up and disposed of. We do not agree that the August 13 hearing on the merits was a continuation of the show cause on the injunction. These were two separate and distinctly different hearings, although arising out of the same suit.

Since we conclude the trial judge was in error in ordering defendants to immediately file an answer and proceed to trial, we reverse the judgment of the trial court in its entirety and remand. For the sake of judicial economy, however, the plaintiffs on remand can use the evidence already presented in addition to presenting any additional evidence. This matter, however, will not be ready for trial until defendants have filed their answer, and defendants have 10 days from the finality of this judgment within which to file an answer.

Therefore, for the above and foregoing reasons, the judgment of the trial court setting aside and vacating the suspensive appeal order, nullifying the election of officers on June 3,1979, of the Iberville Industrial Voters League and ordering a new election of officers is reversed, and this matter is remanded for further proceedings consistent with the views expressed herein-above. Defendants have 10 days from finality of this judgment to file their answer. All costs are taxed to plaintiffs-respondents.

REVERSED AND REMANDED.

      . Art. 2088. Divesting of jurisdiction of trial court
      The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolu-tive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:
      (1) Allow the taking of a deposition, as provided in Article 1433;
      (2) Extend the return day of the appeal, as provided in Article 2125;
      (3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;
      (4) Correct any misstatement, irregularity, informality, or omission of the trial record, ■ as provided in Article 2132;
      (5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;
      (6) Grant an appeal to another party;
      (7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;
      (8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of. this Code; or
      (9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal.

      . Art. 3612. Appeals
      There shall be no appeal from an order relating to a temporary restraining order.
      An appeal may be taken as a matter of right from an order or judgment relating to a preliminary or final injunction, but such an order or judgment shall not be suspended during the pendency of an appeal unless the court in its discretion so orders.
      An appeal from an order or judgment relating to a preliminary injunction must be taken and a bond furnished within fifteen days from the date of the order or judgment. The court in its discretion may stay further proceedings until the appeal has been decided.
      Except as provided in this article, the procedure for an appeal from an order or judgment relating to a preliminary or final injunction shall be as provided in Book III.


author: COVINGTON, Judge.

text:
    A. Douglas SALMON, III, d/b/a Doug Salmon Company v. James E. HODGES.
    No. 12947.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    James F. Abadie, Michael A. Patterson, Baton Rouge, for plaintiff-appellee A. Douglas Salmon, III d/b/a Doug Salmon Co.
    A. L. Carbonette, Baton Rouge, for defendant-appellant James E. Hodges.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is an appeal by the defendant, James E. Hodges, from a judgment of the district court in favor of the plaintiff, A. Douglas Salmon, III, d/b/a Doug Salmon Company, in the amount of $17,400.00 as real estate commission. We affirm.

The record shows that Hodges entered in a purchase-sale agreement on December 2, 1977, with George W. Brown, representing the owners. The tenor of the agreement was that Hodges agreed to buy, and the owners agreed to sell, certain real estate situated in East Baton Rouge Parish, Louisiana, the said property having been previously listed, with Salmon, the plaintiff, under an exclusive listing agreement with the owners on June 1, 1977. The sale price agreed upon was $290,000.00.

In the agreement, Hodges agreed to pay the real estate agent’s commission (6%) if he, the prospective purchaser, failed to perform under the agreement. The payment of the commission was to be paid at the act of sale and was the primary obligation of the seller. The agreement was not complete in itself, but referred to the attached option for its terms. The option was in favor of E. C. Shafer, effective November 2, 1977. The option was then assigned by Shafer to Salmon, who then assigned it to Hodges, who exercised the option by executing the purchase-sale agreement. Several extensions of time were granted to Hodges; but, on March 15, 1978, the owners refused to grant a further extension. The prospective purchaser was unable to make the necessary loan within the extended time, so the sale did not take place.

The applicable law is that a real estate agent earns a commission if he procures a purchaser who is ready, willing and able to purchase the property on the vendor’s terms, even if the sale is not consummated. Eanes v. McKnight, 262 La. 915, 265 So.2d 220 (1972); Joiner v. Lockart, 350 So.2d 199 (La.App. 3 Cir. 1977), writ denied, 352 So.2d 240 (La.1977).

The record reflects that Salmon procured a ready, willing and able purchaser as far as the agreement reads. The prospective purchaser did not stipulate that the sale was contingent upon his making a satisfactory loan commitment. The terms under the agreement were that the sale was for the purchase price in cash. Despite several extensions of time, the prospective purchaser was unable to fulfill his obligations under the purchase-sale agreement and has breached the contract. Consequently, under the terms of the agreement Hodges has failed to perform and has obligated himself to pay the real estate commission.

Appellee’s demand for penalties for a frivolous appeal is denied.

The statute which authorizes damages for frivolous appeals is penal in nature and must be strictly construed. Since appeals are favored; such penalties should not be granted unless they are clearly due; e. g.: when there are no serious legal questions, when it is manifest that the appeal is taken solely for the purpose of delay, when it is evident .that appellant’s counsel is not serious in advocating the view of law which he presents. C.C.P. art. 2164; Guidry v. Carmouche, 320 So.2d 267 (La.App. 3 Cir. 1975); Jackson v. East Baton Rouge Parish School Board, 348 So.2d 739 (La.App. 1 Cir. 1977); Hebert v. Knoll, 370 So.2d 151 (La. App. 3 Cir. 1979).

We, thus, agree with the holding of the district court, and affirm the judgment at the appellant’s costs.

AFFIRMED.


text:
    Marcia Batiste SMITH v. Willie SMITH.
    No. 12952.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.
    Writ Denied March 28,1980.

      Joseph A. Gladney, Robert Talley, Baton Rouge, for plaintiff-appellant Marcia Batiste Smith.
    Doris Gates Rankin, Baton Rouge, for defendant-appellee Willie Smith.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This matter originated as a divorce action brought by the plaintiff, Marcia Batiste Smith, against her husband, Willie Smith. The defendant answered, denying the allegations, and with his answer he filed four interrogatories which were primarily aimed at the question of the wife’s employment. Those interrogatories were filed on February 6,1979, and were served upon the plaintiff through her counsel on February 8. On March 2, the plaintiff having failed to respond to the interrogatories within 15 days after service, as required by LSA-C.C.P. art. 1458, the defendant moved for a rule to compel answers to the interrogatories and for expenses. The show cause order was set for hearing on March 8. The plaintiff did not file an opposition or seek an extension of time. On March 7, the day before the hearing, she filed the answers. On March 8, the rule was heard and the plaintiff was cast with $75.00 attorney’s fees and costs. This judgment was signed on March 12. Trial on the merits was held on March 26, decided in defendant’s favor, and on March 29 the lower court dismissed plaintiff’s suit for divorce. On April 14, she moved for and obtained an order of devolu-tive appeal “from the judgment of March 12, 1979.” Therefore, only the question of attorney’s fees on the rule is before this Court on appeal. We affirm.

Although neither party raised the issue, we must point out that a judgment assessing attorney’s fees for failure to make discovery as required by statute is interlocutory and nonappealable; the proper device is to apply for supervisory writs. Roy v. Moity, 225 So.2d 315 (La.App. 3 Cir. 1969). However, in this case, since appeals are favored, and since the appellant did not move for and obtain an order of appeal until April 14, which was after the judgment on the merits, we will entertain the case although the record shows that the appeal was from the March 12 judgment. It might be considered that the interlocutory judgment on March 12 was merged with the final judgment on March 29.

The plaintiff’s main contention on appeal is that the trial judge did not actually order the plaintiff to answer the interrogatories, because the plaintiff had filed her answers prior to the hearing on the motion to compel.

LSA-C.C.P. art. 1469(4) clearly permits the trial judge to allow attorney’s fees and other reasonable expenses, unless the party failing to answer the interrogatories timely was “substantially justified or that other circumstances make an award of expenses unjust.” The trial judge is necessarily granted broad discretionary powers in determining whether or not expenses and attorney’s fees will be awarded. Duplechien v. McNabb, 260 So.2d 789 (La.App. 4 Cir. 1972), writ denied, 262 La. 132, 262 So.2d 395 (1972). We have reviewed the record and find no manifest error in the trial court’s award of $75.00 as attorney’s fees. Hartford Accident & Indemnity Company v. Byles, 280 So.2d 624 (La.App. 3 Cir. 1973).

We find no merit in the plaintiff’s contention that, because of the fact that at the time the motion was argued the answers had already been filed in the record, the motion to compel the plaintiff to answer the interrogatories was never granted and therefore attorney’s fees could not be recovered. The party to whom the interrogatories are directed can either request an enlargement of the time within which to file his answers, or he may file an opposition to the interrogatories; however, he cannot merely sit back and wait to be ruled into court and then expect to avoid the discovery sanctions. We find that the plaintiff herein was properly assessed with attorney’s fees for her failure to timely respond to the interrogatories.

The judgment is, therefore, affirmed at the appellant’s costs.

AFFIRMED.


text:
    Ms. Earl Mae WELLER v. Margie BROWN, d/b/a Cattleman’s Restaurant et al.
    No. 12968.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 27, 1979.

      C. Kris Kirkpatrick, Baton Rouge, for plaintiff-appellee Ms. Earl Mae Weller.
    Alton Clay Pierce, Jr., Baton Rouge, for defendant-appellant Margie Brown, et al.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COVINGTON, Judge.

This is a workmen’s compensation case. The plaintiff, Ms. Earl Mae Weller, sued Margie Brown, d/b/a Cattleman’s Restaurant, her employer, and the employer’s insurer, Rockwood Insurance Company, for workmen’s compensation benefits for an injury she sustained while working as a waitress on April 1, 1976, when she slipped and fell while waiting on tables, injuring her back.

The district court found the employee to be totally and permanently disabled and entitled to full statutory benefits, but denied her claim for penalties and attorney’s fees. The defendants appealed; the plaintiff answered the appeal, seeking penalties and attorney’s fees. We affirm.

The record establishes that the plaintiff, a waitress at Cattleman’s Restaurant, slipped and fell on her coccyx while she was waiting on tables. She finished the day’s work, but had to seek medical attention after work. (R 98) She was able to return to duty the next day, and continued to work until April 18, 1976, at which time she was terminated by her employer. The plaintiff testified to the injury, and to “hurting the whole time” she worked following the fall. (R 99) Thereafter, she worked sporadically as a cook on river tugs. Hattie Bethley, a co-employee at Cattleman’s Restaurant, saw Ms. Weller’s fall and picked her up. Mrs. Bethley testified that the plaintiff appeared to be working in pain. She expressed the opinion that Ms. Weller worked in pain during the time that she remained employed at Cattleman’s Restaurant. (R 125) There was some medical evidence substantiating the back injury to the plaintiff, particularly that of Dr. John T. Howe. (R 82) Also, there was some evidence that the plaintiff made complaints of her back hurting prior to the accident. (R 82, R 112)

In view of these earlier back complaints, the appellants contend that the court below erred in not finding that the pre-existing back condition precluded the plaintiff from recovery of workmen’s compensation benefits. There is no merit to this contention. The jurisprudence is clear that an employer takes an employee as he finds him. An employee’s disability is com-pensable if a work-related accident aggravates or accelerates a pre-existing condition to produce disability. Cadiere v. West Gibson Products Company, 364 So.2d 998 (La. 1978); Crawford v. Al Smith Plumbing & Heating Service, Inc., 352 So.2d 669 (La. 1977). An employee who is abnormally susceptible to disability from an accident is entitled to workmen’s compensation benefits even though the same accident or injury would have caused little or no harm to a healthy employee. Gales v. Great Atlantic & Pacific Tea Company, 342 So.2d 241 (La. App. 4 Cir. 1977), writ denied, 343 So.2d 1077 (La.1977).

The evidence in the record convincingly shows that Ms. Weller’s pre-existing minor back complaints were substantially aggravated by this particular fall, which resulted in a fracture of the coccyx. Dr. Howe testified that she had only minor intermittent back pains before the accident, and that “she was able to function at least so that she could work.” However, following the fall, Ms. Weller “developed really a chronic pain syndrome which was constant and made her unable to work.” (R 82)

In the trial judge’s “Written Reasons for Judgment,” he stated:

“Plaintiff had a good work history, was able to lead a productive life, and was happy until this fall but since then her personality has changed; she is a complainer and unable to work.
“He (Dr. John Howe) diagnosed her condition as a chronic pain syndrome. Additionally, he felt that she had a personality disorder which he described as a hostile dependent personality. Dr. Howe was of the opinion that plaintiff was disabled because of the pain syndrome and the psychiatric disorder. He also felt that her prognosis for recovery was not good.”

In their second specification of error, the appellants contend that the judge a quo erred in failing to hold that the plaintiff had not carried her burden of proof in establishing her disability.

In discussing the question of burden of proof, the trial judge stated in his “Written Reasons for Judgment” (R 39):

“The court feels that several factors should be considered which definitely tend to assist plaintiff with her burden of proof, to-wit: her demeanor was good and she seemed to honestly portray her problems; she was a productive worker until her fall; she attempted to continue to work even after the fall. The various physicians who treated her all felt that she did indeed suffer from a low back disorder; and finally, the testimony from Dr. Howe, who obviously went to great depth with plaintiff in his effort to help her. The court feels that Dr. Howe was finally able to successfully diagnose her problem as being a mixed physical and psychiatric one. All these factors convinced the court that plaintiff established by a preponderance of the evidence that she is presently totally disabled.”

In a workmen’s compensation suit the employee must prove by a preponderance of the evidence that he received a personal injury arising out of and in the course of his employment and that a causal relationship exists between the injury and his disability. Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976). Once the employee has shown that there was an accident and a resulting disability without any intervening cause, the defendant bears the burden of rebutting a presumption that the accident caused the disability. Haughton v. Fireman's Fund American Insurance Companies, 355 So.2d 927 (1978).

At the trial the plaintiff testified that she slipped and fell to the floor while waiting on tables during the dinner rush, an accident within the definition of LSA-R.S. 23:1021. The existence of the injury is shown by the record. Ms. Weller’s testimony that the accident caused or aggravated the back injury and the resulting substantial pain is supported by the testimony of Dr. Howe, Dr. Moak and Mrs. Bethley, her fellow employee at Cattleman’s Restaurant. The absence of objective findings by some of the medical experts does not satisfy the defendant’s burden of going forward with the evidence to show that the disability is not compensable.

On this question of burden of proof, the appellants strenuously argue that Ms. Weller was not disabled because of the lack of objective findings or symptoms. As shown by the case of Drummer v. Central Pecan Shelling Company, 366 So.2d 1333, 1335 (La.1978), disability is not limited to the readily apparent symptoms lasting over a lengthy period of time. The Drummer Court interprets the statutory requisite as follows:

“Workmen’s compensation payments may be made ‘for only such injuries as are proven by competent evidence, or [sic] which there are or have been objective conditions or symptoms proven, not within the physical or mental control of the injured employee himself.’ (emphasis added) La.R.S. 23:1317. In interpreting the statutory language this Court has indicated that ‘objective conditions or symptoms’ have a broad meaning, including ‘symptoms of pain, and anguish, such as weakness, pallor, ... sickness, nausea, expressions of pain clearly involuntary, or any other symptoms indicating a deleterious change in the bodily condition * * *.’ Frantz v. Schroeder, 184 La. 945, 947, 168 So. 110, 111 (1936) (quoting with approval from Manning v. Pomerene, 101 Neb. 127, at 130, 162 N.W. 492, at 493 (1917)), and this Court has consistently held that subjective results which are imputable to the original objective conditions are compen-sable under law. Tantillo v. Liberty Mutual Insurance Company, 315 So.2d 743 (La.1975); Frantz v. Schroeder, supra. Accordingly, the objective conditions or symptoms required by the statute are not limited to symptoms of an injury which can be seen or ascertained by touch. Moreover, there need not be a continued exhibition of objective symptoms to entitle the employee to compensation if the injury complained of is causally connected with the original accident. Tantillo v. Liberty Mutual Insurance Company, supra; Frantz v. Schroeder, supra; Vega v. Higgins Industries, 23 So.2d 661 (La.App. Orl. Cir. 1945).”

Thus, we find, as the lower court did, that the plaintiff herein is entitled to total and permanent disability compensation.

Next, the appellants contend that because the plaintiff worked as a cook for a period of time following the termination of her employment at Cattleman’s Restaurant, she has lost her right to claim workmen’s compensation benefits from Cattleman’s. There is no merit in this contention. The case of LeBlanc v. Commercial Union Assurance Company, 349 So.2d 1283 (La.App. 1 Cir. 1977), writ denied, 351 So.2d 174 (La.1977), cited by appellants, does not support such a contention. The Workmen’s Compensation Law contemplates that an “injured” employee will endeavor to work at some gainful employment, and does not penalize such employee if he does not succeed. The record shows that the trial judge dealt properly with this situation: he disallowed compensation during the time the plaintiff worked as a cook on tug boats, yet found that the fall on April 1, 1976, which caused or aggravated her back injury, continued to bother her and ultimately rendered her totally and permanently disabled, because she has no reasonable ability to engage in any gainful employment in her present condition. See Ashworth v. Elton Pickering, Inc., 361 So.2d 940 (La.App. 3 Cir. 1978).

The appellants also argue that the plaintiff, even if totally and permanently disabled, is entitled to no more than 66% percent of $51.87 per week. The $51.87 figure is only the stipulated amount of the plaintiff’s weekly wages; it is not the only amount to take into consideration.

The trial judge explained how he arrived at the figure of $80.78 per week which he used as the basis of his judgment as follows:

“There is some dispute over plaintiff’s rate of pay. The testimony clearly indicated that she was paid $1.00 an hour for a 50-hour week, and she got one meal a day, which was worth $1.00. She also got tips. Plaintiff estimated that she averaged $10.00 a day in tips. Defendants did not contradict this evidence. According to law, the employer is under an obligation to report the amount of employees’ tips to the Internal Revenue Service, which was not done. The established minimum wage at the time of plaintiff’s accident was $2.20 per hour and the court feels that plaintiff was making at least the minimum wage from tips and hourly wages at the time she was injured.”

The trial judge’s finding, with which we agree, is supported by the testimony of defendant Brown (R 140):

“Q. Were you concerned whether she got paid the minimum wage?
A. Well, I felt like between what she was getting paid and her tips that she was getting the minimum wage. That’s what I understood, you know, that their tips made up the difference.
Q. So as far as you were concerned she was making at least the minimum wage in tips plus what you were paying her?
A. I am sure that she was.”

On the other hand, the plaintiff re-urges her claim for penalties and attorney’s fees. The circumstances shown, however, do not indicate that the failure to pay the claim was arbitrary, capricious, or without probable cause as is required by LSA-R.S. 23:1201.2 to warrant such an award. The evidence supports the existence of a valid dispute between the claimant and the defendants concerning the cause of the claimant’s disability; therefore, no penalties and attorney’s fees should be assessed. See Parks v. Insurance Company of North America, supra; LeBlanc v. Mangel’s of Louisiana, Inc., 306 So.2d 422 (La.App. 3 Cir. 1975), writ denied, 310 So.2d 639 (La. 1975).

For the reasons assigned, the judgment appealed is affirmed at the appellants’ costs.

AFFIRMED.


author: COLE, Judge.

text:
    FIDELITY NATIONAL BANK OF BATON ROUGE v. COLEMAN AMERICAN MOVING SERVICES, INC., et al.
    No. 13057.
    Court of Appeal of Louisiana, First Circuit.
    Jan. 21, 1980.
    Ralph Hood, Roland C. Kizer, Jr., Baton Rouge, for plaintiff-appellee Fidelity National Bank of Baton Rouge.
    Ronald W. Guth, Slidell, Stephen R. Wilson, Baton Rouge, for defendants-appellants Coleman American Moving Services, Inc., Coleman American Companies, Inc., James F. Coleman, Douglas M. Coleman, and Patrick B. Coleman.
    Before COVINGTON, LOTTINGER and COLE, JJ.
   COLE, Judge.

Fidelity National Bank of Baton Rouge sued on a promissory note and two contracts of suretyship. The trial court granted the bank’s motion for a summary judgment. Defendants appeal.

The issues on appeal are whether the trial court erred in denying defendants’ motion for a continuance and whether the summary judgment was properly granted.

On the issue of the refusal to grant a continuance, we note the following facts. Fidelity Bank filed suit on January 19, 1979. Defendants’ answer, signed by counsel, was not filed until March 6, after the entering of a preliminary default. On May 9, the bank filed a motion for summary judgment and on May 14, a hearing was set for June 1. Two days before the hearing defendants hired their present attorney. On May 31, defendants’ new counsel asked to be enrolled as counsel of record and filed a motion for a continuance of the hearing on the motion for summary judgment. The request for a continuance was denied without a hearing.

Defendants’ motion for a continuance contained no allegations amounting to one of the peremptory grounds set forth in Code of Civil Procedure article 1602. The motion merely stated additional time was needed because counsel had only recently been retained. Article 1602 requires a showing of due diligence by the party applying for the continuance. Any failure by defendants to prepare and present material evidence was due solely to their own lack of diligence in engaging counsel.

The granting of a continuance on grounds other than those listed in article 1602 rests within the sound discretion of the trial court. C.C.P. art. 1601; Town of Richwood v. Goston, 340 So.2d 632 (La.App.2d Cir. 1976); Barham v. Barham, 337 So.2d 289 (La.App.2d Cir. 1976). We find no abuse of discretion in denying a continuance to parties whose unpreparedness is due to their own unexplained delay in securing counsel. Barham v. Barham, supra; Evans v. Travelers Insurance Co., 220 So.2d 117 (La.App.3d Cir. 1969). Defendants also complain that no hearing was held on their motion for a continuance (C.C.P. art. 1605), but we note the record contains no evidence a hearing was ever requested.

Defendants attack the granting of the motion for summary judgment on the grounds that the documents referred to in plaintiff’s affidavit were not attached to nor served with the affidavit. The bank supported its motion for summary judgment with an affidavit of a bank officer who stated he had personal knowledge of the execution and content of the note and contracts of suretyship and of the sums due thereunder. Copies of the note and surety-ship contracts were not attached to nor served with the affidavit. However the documents had been attached to the petition.

Defendants rely on Code of Civil Procedure article 967, which states in pertinent part: “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” Defendants argue that plaintiff’s failure to serve copies of the note and guaranties with the affidavit is a sufficient basis for reversing the summary judgment. We disagree. In the instant circumstances defendants’ argument is hypertechnical and contrary to the dictates of Code of Civil Procedure article 5051. Defendants do not assert any actual prejudice resulted. The documents, which were clearly identified in the affidavit, were already part of the record and, by virtue of Code of Civil Procedure article 966, were properly considered by the trial court in acting on the motion. First Progressive Bank v. Griffith, 354 So.2d 703 (La.App.4th Cir. 1978). Furthermore, we find no genuine issue of material fact as defendants did not submit countervailing affidavits or other receivable evidence. C.C.P. art. 967.

For the above reasons, the judgment of the trial court is affirmed. Costs are to be paid by appellant.

AFFIRMED.


author: CHIASSON, Judge.

text:
    STANDARD COMPANY OF NEW ORLEANS, INC. v. ELLIOTT CONSTRUCTION COMPANY, INC., et al.
    No. 11867.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 1980.
    James Ryan, III, New Orleans, of counsel, for plaintiff-appellee Standard Company of New Orleans, Inc.
    Gordon A. Pugh, Baton Rouge, of counsel for defendant-appellee Elliott Construction Co.
    Jay H. Kearns, Robert E. Redmann, Asst. Attys. Gen., New Orleans, of counsel, for third party defendant-appellant Louisiana Division of Administration.
    Before ELLIS, CHIASSON and PONDER, JJ.
   CHIASSON, Judge.

Elliott Construction Company, Inc., filed a motion to dismiss the appeal of the State of Louisiana as being from an interlocutory decision.

A number of disputes arose among the contractors, subcontractors and the State over the minidome at Southern University. In one of these, Standard Company of New Orleans, Inc., sub-contractor for the installation of the roof, filed suit against Elliott Construction Company, Inc. among others. Elliott filed a third party demand against the State. As a pre-arbitration hearing, Elliott opposed the arbitration of the roof dispute and the arbitrators indicated a brief that they would not arbitrate that issue, but did not make a formal ruling. The State filed a motion in the suit filed by Standard to compel arbitration and to stay the litigation pending arbitration. The court refused the motion saying that the State was attempting to get an appellate review of an interim decision of the arbitration panel. The State appealed suspensively. Elliott moved - to dismiss the appeal.

The motion for an appeal recites that it is one from a final judgment which is defined by La.C.C.P. Art. 1841 as being one determining the merits in whole or in part. The judgment appealed from does not dispute in whole of in part the merits of the dispute between Elliott and the State over the roof at the minidome.

There is no allegation of irreparable injury to justify an appeal from an interlocutory judgment.

The appeal is therefore dismissed at appellant’s costs.

APPEAL DISMISSED.


author: PONDER, Judge.

text:
    Joseph Vernon FOSTER, Jr., et al. v. LOUISIANA DEPT. OF CORRECTIONS.
    No. 13103.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 11, 1980.
    Joseph Vernon Foster, Jr., and Louis Joseph Ballard, in pro. per.
    S. Dwayne Broussard, Asst. Atty. Gen., Baton Rouge, for defendant-appellee.
    Before ELLIS, CHIASSON and PONDER, JJ.
   PONDER, Judge.

Plaintiffs appealed the dismissal of their suit to enjoin the infliction of any disciplinary action for failure to show respect to penitentiary employees not given to them by those employees.

No briefs have been filed by the plaintiffs. We have received no communication negating the intention to abandon. No one was present on the date set for submission of the case. We therefore deem the appeal abandoned. Rule VII, Sec. 5 of the Uniform Rules, Courts of Appeal.

APPEAL DISMISSED.