author: FRED S. BOWES, Justice Pro Tern.

text:
    STATE of Louisiana v. Billy THIBODEAUX.
    No. 81-KA-2492.
    Supreme Court of Louisiana.
    May 17, 1982.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Ossie Brown, Dist. Atty., Kay Kirkpatrick, Allen Helm, Asst. Dist. Attys., for plaintiff-appellee.
    M. Michele Fournet & David Randall Buckley, Baton Rouge, for defendant-appellant.
   FRED S. BOWES, Justice Pro Tern.

The defendant, Billy Steven Thibodeaux, pleaded guilty to six separate counts of simple burglary, while reserving the right to appeal the trial court’s ruling on the motion to suppress his confession. State v. Crosby, 338 So.2d 584 (La.1976). He was sentenced to a term of six years’ imprisonment on each count. The sentences on the first three counts were directed to run concurrently with each other and the sentences on the second three counts were directed to run concurrently with each other and consecutively to the first three counts. These sentences were suspended and the defendant was placed on supervised probation for five years. The defendant now appeals the trial court’s ruling on the motion to suppress his confession, arguing one assignment of error.

On May 15, 1980 and May 16, 1980, Billy Thibodeaux confessed to each of the six burglaries charged herein. The defendant pointed out the residences and buildings he burglarized as Detectives Ernest Brewer and Donnie Smith of the Baton Rouge City Police drove him throughout the city of Baton Rouge. He indicated how he gained entry to the buildings, who, if anyone, assisted him, approximately when he burglarized the premises, and what items he stole. Officer Paul Morant, Jr., subsequently retrieved police reports compiled on each of these burglaries and interrogated the defendant as to the circumstances surrounding each burglary, thereby further corroborating the defendant’s confessions.

Assignment of Error Number 1

By this assignment, defendant contends that the trial court erred in denying the motion to suppress his confession. The defendant submits that his confession was obtained as a direct result of a warrantless arrest without probable cause. Alternatively, it is submitted that the confession was involuntary and inadmissible because it was obtained by the improper influence of the police officers in misrepresenting the evidence which they had against the defendant.

Detective Ernest Brewer testified that on May 15, 1980 he received a telephone call from an unidentified, confidential informant who stated that Billy Thibodeaux and Wes Mizell had burglarized a Mobil Station on Florida Blvd. a few days earlier. Brewer personally knew the informant. However, he had not previously worked with him. Acting on this tip, Brewer and Smith proceeded to the defendant’s residence that same afternoon, arriving there at approximately 4:00 p. m., in plain clothes and in an unidentified car. As they pulled into the defendant’s driveway, Thibodeaux approached them from down the street and his mother came outside. Brewer and Smith identified themselves and told the defendant that they were detectives investigating the burglary of a Mobil Station. They advised him of his Miranda rights and asked him if he would come to the police station for questioning regarding this. Detective Brewer testified that he did not go there with the intention of arresting the defendant but that he wanted to bring Thi-bodeaux to the station because he anticipated an extended interrogation and wanted access to police reports. The defendant agreed to accompany the police after his mother approved of the idea. Brewer testified that he specifically told the defendant that he did not have to come to the station. The defendant denied this and claims that he was under the impression that he would be arrested immediately if he did not agree. While at the stationhouse, Thibodeaux admitted to burglarizing the Mobil Station.

The first issue in this case is whether the defendant was illegally detained when Detectives Brewer and Smith arrived at his house. Whether a person has been taken into custody, detained or deprived of his freedom in a significant way must be decided by an objective test. State v. Liner, 397 So.2d 506 (La.1981); State v. Menne, 380 So.2d 14 (La.1980). Neither the defendant’s subjective impression nor the formality of an official arrest will be determinative of the issue of his claimed illegal detention. State v. Menne, supra. Rather, all of the circumstances surrounding the defendant’s transportation to the station-house and questioning should be evaluated.

In the present case, the defendant was approached by two plainclothes police officers at his house. They advised him of his rights and requested that he accompany them to the police station. The defendant was specifically told that he did not have to go along. At no time did the detectives tell the defendant that he had to come to the station or that he was under arrest. When the objective standards of Menne, supra, are applied to the totality of circumstances in this case, it is clear that the defendant had no reason to feel that he had been “deprived of his freedom or action in a significant way” such as to believe he was in custody. Therefore, we find that the defendant voluntarily accompanied the police to the station and there was no illegal arrest.

The second part of defendant’s argument concerns the voluntariness of his confession. The defendant submits that the police misrepresented the existence of evidence against him.

At the police station, the defendant was again advised of his Miranda rights and at this time signed the first of many forms, entitled “Your Rights And Consent To Questioning.” Shortly thereafter, he admitted to burglarizing the Mobil Station. The defendant claims he confessed because either Detective Brewer or Detective Smith showed him what they claimed to be his fingerprints lifted from a vending machine in the Mobil Station. Detective Smith flatly denied ever showing the defendant these purported fingerprints. Brewer did not recall showing the defendant the fingerprints but admitted that it was “possible” that he could have told the defendant that they had evidence which they did not in fact have. Detective Brewer stated, however, that he did not think that they showed the defendant any fingerprints because they did not have any.

After the defendant admitted to burglarizing the Mobil Station, he asked the police about the possibility of probation. Detective Brewer testified that he told the defendant he would not object to his being placed in a Pretrial Intervention Program or on probation. However, it is undisputed that no promises or threats were ever made. The defendant then confessed to a number of burglaries and agreed to accompany Brewer and Smith throughout the city, pointing out the places he had burglarized. After again being advised of his Miranda rights, the defendant gave written statements confessing to each of the burglaries named therein. He was then formally arrested and charged.

Conclusions of a trial court on the credibility and weight of testimony relating to the voluntariness of a confession are given great weight and will not be overturned unless they are not supported by the evidence. State v. Jackson, 381 So.2d 485 (La.1980); State v. Manning, 380 So.2d 46 (La.1980); State v. Gaines, 354 So.2d 548 (La.1978). The State has the burden of affirmatively proving that a confession was not made under the influence of fear, duress, intimidation, menaces, threats, inducements or promises and must prove beyond a reasonable doubt that a confession was free and voluntary. R.S. 15:451, C.Cr.P. Art. 703(C), State v. Coleman, 369 So.2d 1286, (La.1979); State v. Volk, 369 So.2d 128 (La.1979); State v. Weinberg, 364 So.2d 964 (La.1978).”

The defendant’s claim that the police overstated the case against him was unsubstantiated by the evidence. Detective Smith flatly denied that he misrepresented the evidence to the defendant and the totality of Detective Brewer’s testimony was that they probably did not show the defendant any fingerprints because they did not have any. In our opinion, this evidence was sufficient to meet the State’s burden and to rebut the defendant’s claim that he was shown what the police claimed to be his fingerprints. The State also proved that there were no promises or threats made to induce the defendant’s confession. We think the trial court properly ruled that the defendant’s confession was voluntary and admissible.

Accordingly, defendant’s only assignment of error is without merit.

DECREE

For this reason, we affirm the defendant’s conviction.

LEMMON, J., concurs in the result.

       Judges Fred S. Bowes and Nestor L. Currault, Jr. of the Court of Appeal, Fifth Circuit and Walter I. Lanier, Jr., of the Court of Appeal, First Circuit, participated in this decision as Associate Justices pro tempore, joined by Associate Justices Calogero, Dennis, Blanche and Lemmon.


source: Caselaw Access Project

author: H. CHARLES GAUDIN, Justice Pro Tem.

license: Public Domain

text:
    STATE of Louisiana v. Curtis CLARK.
    No. 81-KA-2613.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Edwin 0. Ware, Dist. Atty., Camille Giordano, Asst. Dist. Atty., for plaintiff-appellee.
    Charles Yeager of Kennedy & Yeager, Alexandria, for defendant-appellant.
   H. CHARLES GAUDIN, Justice Pro Tem.

Curtís Clark is before this Court contending (1) that he should have been allowed to withdraw a guilty plea moments before actual sentencing, (2) that his four-year prison term for an amended charge of simple burglary was constitutionally excessive and (3) that the trial judge did not comply with LSA-C.Cr.P. art. 894.1.

On May 11, 1981, Clark appeared in the 9th Judicial District Court, charged with aggravated burglary. Following reduction of the charge to simple burglary, Clark changed his plea to guilty.

Judge Robert P. Jackson personally conducted a full hearing in accord with the Boykin guidelines, and then ordered a pre-sentence investigation. The record clearly indicates that no promises were made to Clark, although both he and his attorney hoped for either probation or a short parish prison sentence.

In fact, Clark’s attorney said that he advised Clark that first offenders customarily receive probation, sometimes with a 30- to 60-day parish prison sentence as a special condition of probation, and Clark apparently anticipated such lenient treatment.

Clark’s attorney admitted, however, that trial judge would make no commitment until he “. . . had an opportunity to review the file, had the opportunity to see a pre-sentence investigation...”

Immediately before sentencing on August 10, 1981, Judge Jackson, in chambers, told Clark’s attorney that a four-year at hard labor sentence would be imposed. When the hearing convened, Clark moved to withdraw his plea, but this was denied and Clark was sentenced.

The court may permit a plea of guilty to be withdrawn at any time before sentencing (LSA-C.Cr.P. art. 559), and a defendant has a right to withdraw the plea when a promise is made and then broken, as in State v. Lockwood, 399 So.2d 190 (La.1981). But dissatisfaction with the sentence or expected sentence is not grounds if the accused entered the plea on the advice of competent counsel and there is no indication that a prior commitment had been broken. See State v. Boatright, 406 So.2d 163 (La.1981).

Further, the expectation of a lesser sentence than the one imposed will not undermine the voluntary nature of the plea. See State v. Dunn, 408 So.2d 1319 (La.1982).

The instant record is devoid of any breached plea bargain or any negotiation that might have led Clark to reasonably believe that his plea would result in probation or a short sentence. According, the trial judge properly refused to allow the guilty plea to be withdrawn.

Regarding the four-year sentence, Judge Jackson gave this reasoning:

“This was a crime in which you broke into an inhabited dwelling, and during the course of it ... you committed a battery upon the person involved. You broke into a lady’s house, and . . . did commit a slight battery upon her. Since this was a crime directed toward the person, I am not going to give you a suspended sentence, and also it was a crime where you broke into an inhabited dwelling”

Clark had broken into the female victim’s house and committed the battery by waking her up and trying to pull her pants down in the presence of her two small children. According to the victim, Clark “.. . was saying suggestive things to me and he started grabbing on me ... burglary was not his intention...”

When he heard neighbors outside, Clark fled through the rear door.

The pre-sentence report, relied on by the trial judge, shows that while Clark is a first felony offender, he does have misdemeanor convictions for disturbing the peace, theft, gambling and possession of marijuana. Clark was on one-year probation when the present offense occurred, and his probationary record was unsatisfactory.

It should also be noted that Clark received considerable benefit from the reduction of the charge from aggravated to simple burglary.

The record fully supports the four-year sentence and it shows substantial compliance with LSA-C.Cr.P. art. 894.1 by the trial judge.

Thus, Clark’s conviction, via the plea of guilty, and his sentence are affirmed.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


text:
    STATE of Louisiana v. Rowan WILLIAMS.
    No. 81-K-2677.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., James D. Caldwell, Dist. Atty., John D. Crigler, Asst. Dist. Atty., for plaintiff-appellee.
    Raymond L. Cannon of Office of Indigent Defender, Tallulak, for defendant-appellant.
   H. CHARLES GAUDIN, Justice Pro Tem.

Rowan Williams was convicted of armed robbery and originally sentenced to 70 years at hard labor without benefit of probation, parole or suspension of sentence. The Supreme Court of Louisiana affirmed the conviction, State v. Williams, 397 So.2d 1287 (La.1981), but found the sentence constitutionally excessive and remanded for resen-tencing, suggesting that the record did not support a sentence in excess of 15 years.

We were of the opinion, and so stated, that Williams was an 18-year-old youth of below average intellect and that he acted under the domination of a militant father.

The excessiveness of a sentence is a reviewable question of law under appellate jurisdiction. La.Const. Art. 1, Sec. 20, Art. 5, Sec. 5(C).

After the initial opinion was rendered on April 6,1981, the State of Louisiana applied for a rehearing. In a per curiam denial of this application, this Court stated that the trial court, on remand, may consider additional evidence at the resentencing hearing and impose a new sentence justified by the record as amended.

Judge Alwine M. Ragland, who presided over the first trial, conducted a lengthy resentencing hearing, following which she imposed a sentence of 40 years without benefit or probation, parole or suspension of sentence.

Williams is now back before this Court, contending that his 40-year sentence is excessive. We cannot agree.

Six persons, including Williams, participated in the armed robbery of Earl Lessley, Jr. and his family, during which Lessley was shot and fatally injured by Lee Andrew Carroll.

Carroll entered a plea of guilty to second degree murder and was sentenced to life imprisonment. John Williams, alias Kwab-lah, was convicted and given 50 years at hard labor without benefit of probation, parole or suspension of sentence. John Williams is Rowan Williams’ father.

Three others, Darnell Washington, Cornelius Washington and Willie Washington, entered pleas of guilty to armed robbery and received 25-year sentences without benefit of probation, parole or suspension of sentence.

Darnell, Cornelius and Willie Washington were among those who testified during the resentencing hearing. They described Williams’ part in the Lessley robbery and other crimes, including burglary and arson, during which Williams used “Molotov cocktail” fire bombs he had made.

Williams, the Washingtons said, helped plan and was a willing participant in the Lessley robbery. Armed with a pistol, Williams served as a look-out; and later, after Lessley had been shot, Williams helped remove stolen weapons from the residence and shared in stolen money. He also wanted to drive the get-away car, also stolen.

The trial judge found “. .. that Rowan Williams took part in the inner circle of the . . . group run by his father, and in this respect he helped plan many crimes to get guns and money. Part of the aim of the group was to place the white and black citizens in mortal fear and under their control. Rowan Williams took part in the Lessley armed robbery and' other crimes, and this Court believes he would commit other crimes if he were released. His attitude was found to be hostile and beligerent by the probation officer.. .”

Also, the trial judge found Williams to be “. . . the more intelligent planner and participant ...” and that he was not under the domination of a militant father. These findings, which were supported by the re-sentencing record, differ from those expressed by this Court in the April 6, 1981, opinion.

At the time of his arrest, Williams was attending San Francisco City College in California.

Williams had lived with his grandmother, Mrs. Alice Mae Campbell, during his teenage years while his father was in New York. Mrs. Campbell said that Williams was more intelligent than the three Wash-ingtons and that Williams was not under his father’s influence “. . . because he hadn’t been living with him too long.”

Later, on cross examination:

Q. Mrs. Campbell, do you feel like Kwablah, the father of Rowan Williams, did not influence him?
A. I’m positive he didn’t.

Considering the trial judge’s closing colloquy with regard to the LSA-C.Cr.P. art. 894.1 guidelines, it is clear that she felt that Williams was in dire need of correctional treatment and that a lesser sentence would deprecate the seriousness of an armed robbery in which an innocent victim lost his life.

Also, Judge Ragland felt compelled to sentence Williams to a longer term than those received by the Washingtons. “To give Rowan Williams anything less or even an equal sentence to the other participants,” she said, “would be unfair to the defendants who entered into the plea bargain and lived up to it.” The three Wash-ingtons confessed to various crimes and agreed to be prosecution witnesses.

After carefully considering the resentenc-ing record, we conclude that it does support the trial judge’s findings and her sentence of 40 years without benefit of probation, parole or suspension of sentence.

We affirm.

       Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices Ad Hoc joined by Chief Justice Dixon and Associate Justices Marcus, Blanche and Watson.


author: GAUDIN, Justice Pro Tern.

text:
    STATE of Louisiana v. Byron GRANT.
    No. 81-KA-2853.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Louise Korns, Clifford Strider, William R. Campbell, Asst. Dist. Attys., for plaintiff-appellee.
    John J. Dolan, New Orleans, for defendant-appellant.
   GAUDIN, Justice Pro Tern.

Byron Grant was found guilty of LSA-R.S. 14:95.1, possession of a firearm by a previously convicted felon, and he argues that there was insufficient evidence on which to sustain his conviction.

A 12-person jury did not agree with this contention, nor do we.

On February 22, 1981, a police officer responded to a disturbance at a residence where Grant was in possession of a handgun.

Grant testified that the weapon belonged to Rose Porter, his aunt, and that he had taken it from her after she became excited and “. .. pulled a pistol from her purse.”

Further, Grant said that he was walking from the house to place the gun in his truck just as the policeman arrived.

The officer said that when he reached the residence “. . . there was a big commotion going on ...” involving several people, including Grant.

“Accusations were shouted back and forth,” according to the policeman, and Grant was asked by the officer if he had a weapon. Grant said yes, and produced a loaded .22 caliber pistol from his rear pocket. The serial number had been filed off, and Grant was originally booked with having a concealed weapon.

The charge was later changed when the District Attorney learned that Grant had previously been convicted of simple burglary and had served 18 months in Orleans Parish prison.

Miss Porter provided the jury with a third version of the events that occurred at the residence. The pistol was indeed hers, she said, and she had it in her possession because she was "... upset because, you know, they shot at my daughter.”

When the police officer arrived, Miss Porter stated, Grant was “... moving the hi-fi down the step, him and another man, and the lady pointed him out, the landlord next door pointed him out. . .”

This Court does not know, of course, precisely what findings of fact were made by the jury. If Miss Porter’s version was the one relied on, and she was a prime defense witness, then Grant had ample time to hand the pistol to someone else or to otherwise remove it from his person before “. . . moving the hi-fi down the step...”

The jury might have been persuaded by the police officer’s account and could well have concluded that Grant should have disposed of the pistol before the “big commotion” started.

The instant facts are somewhat similar to those in State v. Clement, 368 So.2d 1037 (La.1979), where the defendant unsuccessfully urged the defense of justification for the weapon possession. If there is reasonable time for the convicted felon to divest himself of a weapon, no matter how obtained, he must do so.

Only Grant’s testimony suggests a very brief lapse between the time he obtained the weapon and his encounter with the officer, and apparently the jury disregarded this possibility.

The trial judge, incidentally, did not read a justification charge to the jury, and the record does not reflect that Grant’s attorney requested such a charge.

There was sufficient evidence to support Grant’s jury conviction and three-year sentence, and we affirm.

      Judge H. Charles Gaudin of the Court of Appeal, Fifth Circuit, and Judges Israel M. Augustine, Jr. and Philip C. Ciaccio of the Court of Appeal, Fourth Circuit, participated in this de-cisión as Associate Justices Ad Hoc joined by Justices Calogero, Dennis, Watson and Lem-mon.


author: PER CURIAM.

text:
    STATE of Louisiana v. otis McKinley.
    No. 81-KA-1516.
    Supreme Court of Louisiana.
    May 17, 1982.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John M. Mam-oulides, Dist. Atty., Abbott J. Reeves, Philip Boudousque, William C. Credo, Asst. Dist. Attys., for plaintiff-appellee.
    Robert T. Garrity, Jr., & Martha Sassone, of Indigent Defender Bd., Jack Quarles, Jr., of Duplechin & Associates, New Orleans, for defendant-appellant.
   PER CURIAM.

Affirmed.

       Judges Nestor L. Currault, Jr. and Fred S. Bowes, of the Fifth Circuit Court of Appeal, and Walter I. Lanier, Jr., of the First Circuit Court of Appeal, participated in this decision as Associate Justices Pro Tempore, with Associate Justices Calogero, Dennis, Blanche and Lem-mon.


author: DIXON, C. J., WATSON, J.,

text:
    STATE of Louisiana v. Edward A. CHANCE.
    No. 82-K-1236.
    Supreme Court of Louisiana.
    May 19, 1982.
   Re Edward A. Chance, applying for writs of Certiorari or Review, Parish of Grant.

Bail reduced to $50,000.

DIXON, C. J.,

concurs in this reduction; if the $50,000 bond cannot be met, relator should apply for a further reduction in a detailed application.

WATSON, J.,

concurs, but would reduce the bond to $25,000 particularly since that amount was not opposed by the State.


text:
    STATE of Louisiana v. Robert DESORMEAUX.
    No. 82-K-1048.
    Supreme Court of Louisiana.
    May 3, 1982.
   In re Robert Desormeaux, applying for writs of certiorari, prohibition, mandamus and a stay order. Parish of Lafayette. No. 46096.

Granted. Preliminary examination ordered to be conducted forthwith and prior to trial.


text:
    Ronald BRILEY v. LOUISIANA STATE RACING COMMISSION, et al.
    No. 82-C-0997.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Ronald Briley, applying for writs of certiorari. Parish of Lafayette. 410 So.2d 802.

Denied.


text:
    Mattie Rose Ferguson DOWNS v. Malcolm C. DOWNS.
    No. 82-C-0996.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Malcolm C. Downs, applying for writ of review, to the Third Circuit, Court of Appeal. Parish of Rapides. 410 So.2d 793.

Denied.

DIXON, C. J., recused.


text:
    Mattie Ross Ferguson DOWNS v. Malcolm C. DOWNS.
    No. 82-C-1015.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Mattie Ross Ferguson Downs, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 410 So.2d 793.

Denied.

DIXON, C. J., recused.


text:
    William E. RYALS, Sr., et al., Individually and as Administrator of the Estate of the Minor, William E. Ryals, Jr. v. HOME INSURANCE COMPANY, et al.
    No. 82-C-0980.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re William E. Ryals, Individually and as Administrator of the estate of the minor, William E. Ryals, Jr., and Betty A. Ryals, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 410 So.2d 827.

Denied.


text:
    William E. RYALS, Sr., et al., Individually and as Administrator of the Estate of the Minor, William E. Ryals, Jr. v. HOME INSURANCE COMPANY, et al.
    No. 82-C-1012.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Home Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 410 So.2d 827.

Denied.


text:
    Martha E. CRONAN, Jane Cronan Cody, et al. v. The CITY OF KENNER, the Consolidated Sewerage District of the City of Kenner, East Jefferson Waterworks District Number one and the Jefferson Parish Council.
    No. 82-C-0957.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Martha E. Cronan, Jane Cronan Cody, et al., applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 410 So.2d 790.

Writ denied.


text:
    S. Mark LOVELL, et al. v. L. H. BOSSIER, et al.
    No. 82-C-0972.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re S. Mark Lovell and Quinn-L Corporation, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 410 So.2d 821.

Denied. The result is correct.

MARCUS, J., would grant the writ.


text:
    MELDEANS, INC. v. Woodrow W. RIVERS.
    No. 82-C-0974.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Meldeans, Inc., applying for writs of certiorari or review, to the Court of Appeal, Third Circuit. Parish of Vernon. 410 So.2d 837.

Denied.


text:
    Jessie JACKSON, et al. v. RAPIDES PARISH SCHOOL BOARD, et al.
    No. 82-C-0978.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Jessie Jackson, et al., applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Rapides. 410 So.2d 811.

Denied. The result is correct.


text:
    STANDARD MACHINE AND EQUIPMENT COMPANY v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al.
    No. 82-C-0948.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Southern Pacific Transportation Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 410 So.2d 842.

Denied. Not final.

LEMMON, J., would grant the writ.


text:
    STANDARD MACHINE & EQUIPMENT COMPANY v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, et al.
    No. 82-C-1013.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Olin Corporation, applying for cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Calcasieu. 410 So.2d 842.

Denied. Not final.

LEMMON, J., would grant the writ.


text:
    Malcolm Keith PEARCE, et al. v. L. J. EARNEST, INC., et al.
    No. 82-C-0947.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Louisiana Department of Transportation and Development Office of Highways, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Sabine. 411 So.2d 1276.

Denied.

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


text:
    EMPLOYERS INSURANCE OF WAUSAU v. I. D. S. O. INVESTMENTS, INC.
    No. 82-C-0942.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Employers Insurance of Wausau, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 410 So.2d 786.

Denied.


text:
    Elmore Ray JOHNSON, Individually and on behalf of his minor child, Elmore Ray Johnson, Jr. v. ALLSTATE INSURANCE COMPANY, and Elvorn Tate, Individually and on behalf of his minor son, Adrien Tate.
    No. 82-C-0940.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Elvorn Tate, Individually and on behalf of his minor son Adrien Tate, and Allstate Insurance Company, applying for certiorari, and writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 410 So.2d 777.

Writ denied.

LEMMON, J., would grant the writ.


text:
    SUCCESSION OF Joseph F. FAVALORO.
    No. 82-C-0936.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Catherine Favaloro, Rose Favaloro, Frank Favaloro, Natalie Favaloro, Felix T. Favaloro, Jr., Camille T. Favaloro and Joseph David Favaloro, applying for certiora-ri, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 410 So.2d 840.

Denied.


text:
    Michael M. WAHLDER v. Richard H. OSBORNE.
    No. 82-C-0926.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Michael M. Wahlder, applying for writ of certiorari or review, .to the Third Circuit, Court of Appeal. Parish of Rap-ides. 410 So.2d 808.

Denied.

CALOGERO, J., would grant the writ.


text:
    Curtis E. BARRIOS v. RHEEM MANUFACTURING COMPANY and The Home Insurance Company a/k/a The Home Indemnity Company.
    No. 82-C-0909.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Curtis E. Barrios, applying for cer-tiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of St. Charles. 410 So.2d 862.

Denied.


text:
    Rudy GIL v. METAL SERVICE CORPORATION.
    No. 82-C-0846.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Rudy Gil, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Orleans. 412 So.2d 706.

Writ denied.

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

WATSON, J., recused.


text:
    STATE of Louisiana ex rel. Clarence SIMMONS and Sammy Bernard v. STATE of Louisiana.
    No. 82-KH-0736.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Sammy Bernard and Clarence Simmons, applying for remedial writs. Parish of Caddo. No. 110001.

Writ denied. Appeal pending.


text:
    STATE of Louisiana ex rel. Robert FELTON, Jr. v. Edwin A. LOMBARD, Clerk of Criminal District Court for the Parish of Orleans and the State of Louisiana and Matthew S. Braniff, Judge of Criminal District Court for Section “B” and Marietta S. Perez, Official Court Reporter for Section “B” and Robert P. Early, Esq., Assistant District Attorney for the Criminal District Court Section “B” and Howat A. Peters, Jr., Esq., Assistant District Attorney for Criminal District Court of Section “B” and Frank Blackburn, Warden, of Angola State Penitentiary.
    No. 81-KH-2430.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Robert Felton, Jr., applying for writ of mandamus. Parish of Orleans. No. 234-672.

Denied.


text:
    D. M. GREENUP AND SONS, INC. v. Dollie M. POWELL.
    No. 82-C-0528.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Dollie M. Powell, applying for reconsideration of writ denied 3/26/82, Court of Appeal, Fourth Circuit. Parish of Orleans. 412 So.2d 1107.

Reconsideration denied.


text:
    Elijah GREEN v. PROVENCAL TIE MILL, et al.
    No. 82-C-0872.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Elijah Green, applying for writ of certiorari or review, Third Circuit, Court of Appeal. Parish of Natchitoches. 411 So.2d 1228.

Granted.


text:
    Eddie HARLAUX, Ronald Harlaux, Leon Harlaux, Lionel Harlaux, Cecil Harlaux, and Stella Harlaux Manchester v. Leroy HARLAUX.
    No. 82-C-0760.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Eddie Harlaux, Ronald Harlaux, Leon Harlaux, Lionel Harlaux, Cecil Har-laux, and Stella Harlaux Manchester, applying for certiorari, or Writ of review, to the Court of Appeal, First Circuit. Parish of Pointe Coupee. 411 So.2d 581.

Granted.


text:
    STATE of Louisiana v. James A. MOORE.
    No. 82-K-0560.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re James A. Moore, applying for supervisory writs of review. Parish of Ouachita. No. 39684.

Denied.


text:
    STATE of Louisiana, ex rel. Jewel SPOTVILLE v. Judge Israel AUGUSTINE, Section “I”, Criminal District Court, Parish of Orleans, New Orleans, Louisiana.
    No. 81-KH-0791.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Jewel Spotville, applying for writ of mandamus. Parish of Orleans. No. 233-945.

Denied.


text:
    STATE of Louisiana, ex rel. Jewel SPOTVILLE v. Israel AUGUSTINE, Judge, Criminal District Court.
    No. 82-KH-0819.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Jewel Spotville, applying for remedial writs. Parish of Orleans. No. 233-945.

Denied.


text:
    Wilbert L. ROTH v. B & L ENTERPRISES, INC., and F. Robert Porter.
    No. 82-C-0845.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Wilbert L. Roth, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Jefferson. 411 So.2d 627.

Granted.

LEMMON, J., recused.


text:
    Deborah Kay HARDY, et al. v. STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS, et al.
    No. 82-C-0946.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Shirley D. Campbell, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchi-toches. 412 So.2d 208.

Denied.


text:
    STATE of Louisiana v. Paul Mitchell GOODLEY.
    No. 82-K-0937.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re State of Louisiana, through the District Attorney, Leonard Knapp, Jr., applying for writ of review. Parish of Calca-sieu. No. 13261-79.

Granted.


text:
    STATE of Louisiana v. Victor MAGEE.
    No. 82-K-0930.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re State of Louisiana through the District Attorney Harry F. Connick, applying for writ of certiorari. Parish of Orleans, Magistrate Section I. No. 286-624.

Granted.


text:
    KUSWA & ASSOCIATES, INC., General Contractors v. THIBAUT CONSTRUCTION COMPANY, INC.
    No. 82-C-0959.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Kuswa & Associates, Inc., General Contractors, applying for writs of certiorari or review. Parish of Jefferson. No. 235-569.

Granted. The appeal is reinstated.


text:
    STATE of Louisiana, ex rel. Bennie MARSHALL v. COURT REPORTER, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 81-KH-2333.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Bennie Marshall, applying for writs of mandamus. Parish of Orleans. No. 267-684.

Writ denied. Moot.


text:
    STATE of Louisiana, ex rel. Glenn David BONNETTE v. CLERK OF COURT, 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, and the Honorable Louis Desonier, Jr., Judge.
    No. 82-KH-0333.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Glenn David Bonnette, applying for writ of mandamus. Parish of Jefferson. No. 80-1228.

Denied.


text:
    STATE of Louisiana, ex rel. Leslie Kyle ADAMS v. Honorable Charles S. KING, Judge, 14th Judicial District Court.
    No. 82-KH-0552.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Leslie Kyle Adams, applying for remedial writs. Parish of Calcasieu. 14th Judicial District Court. Nos. 12191-79 and 2881-80.

Denied.


text:
    STATE of Louisiana, ex rel. Clarence GREEN v. CLERK OF COURT, 5TH JUDICIAL DISTRICT COURT, PARISH OF WEST CARROLL.
    No. 82-KH-0653.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Clarence Green, applying for writ of mandamus. Parish of West Carroll. No. 11496.

Denied. Moot.


text:
    Henry A. SIBLEY, III, Curator of Jane Elizabeth Sibley, Interdict v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE and Louisiana Health Service & Indemnity Company, d/b/a Blue Cross.
    No. 82-C-0949.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re The Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, applying for writ of review or certiorari. Parish of East Baton Rouge. No. 249226.

Not considered. Not timely filed. See Rule 10, § 5(b) Louisiana Supreme Court Rules.


text:
    STATE of Louisiana, ex rel. Morris DAWSON v. STATE of Louisiana.
    No. 82-KH-0693.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Morris Dawson, applying for writ of habeas corpus. Parish of Orleans. No. 269-029.

Denied.


text:
    STATE of Louisiana, ex rel. Donald J. WALKER v. TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON.
    No. 82-KH-0726.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Donald J. Walker, applying for remedial writs. Jefferson Parish. No. 81-324.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Otis GEORGE v. William KLEIN, Judge, Twentieth Judicial District Court.
    No. 82-KH-0788.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Otis George, applying for writ of mandamus. Parish of East Feliciana. No. B-5048.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Leonard DOWELL v. STATE of Louisiana.
    No. 82-KH-0791.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Leonard Dowell, applying for remedial writs. Parish of East Baton Rouge. No. 7 81 90.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Alfred J. ISTRE v. CLERK OF COURT, 21ST JUDICIAL DISTRICT COURT, PARISH OF TANGIPHOA.
    No. 82-KH-0799.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Alfred J. Istre, applying for writ of mandamus, or writ of prohibition. Parish of Tangiphoa. No. 45277-79.

Denied. Application is moot insofar as request for Boykin transcript; request for other document denied.


text:
    STATE of Louisiana, ex rel. Feltus ANDERSON v. COURT REPORTER, DIV. “G”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-0813.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Feltus Anderson, applying for writ of mandamus. Parish of Orleans. No. 208— 980 “G”.

Writ denied. Moot.


text:
    Joseph H. BELLINA, M.D. v. Ceil Mary ROSS, Wife of Joseph H. Bellina, M.D.
    No. 82-C-0842.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Joseph H. Beilina, M.D., applying for writ of certiorari or review, to the Court of Appeal, Fourth Circuit. Civil District Court. Parish of Orleans. No. 12681.

Denied.

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


text:
    STATE of Louisiana, ex rel. Arthur Lee STEWART, Jr. v. Honorable G. KITCHENS, 26th Judicial District Court, Parish of Bossier, State of Louisiana.
    No. 82-KH-0869.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Arthur Lee Stewart, Jr., applying for writ of mandamus. Parish of Bossier. No. 57720.

Denied. Moot.


text:
    STATE of Louisiana v. Keith ELLIOTT.
    No. 82-K-0913.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Keith Elliott, applying for supervisory writs. Parish of Orleans. No. 271-217.

Denied.


text:
    STATE of Louisiana v. Jeffery HEDRICK.
    No. 82-K-0916.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Jeffery Hedrick, applying for writs of certiorari, prohibition, mandamus and for a stay order. Parish of East Baton Rouge. No: 1-82-348.

Writ denied.


text:
    STATE of Louisiana v. Thomas E. SALMONS.
    No. 82-K-0941.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Thomas E. Salmons, applying for writs of certiorari, prohibition and mandamus. Parish of Jefferson Davis. No. CR-827-82.

Denied.


text:
    STATE of Louisiana v. Anzetta SMITH.
    No. 82-K-0991.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Anzetta Smith, applying for writs of certiorari, prohibition and mandamus. Parish of Caddo. Nos. 120044 and 120044-A.

Denied.

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


text:
    In re CARLOS A. GOMEZ O. for Permission to take the Louisiana Bar Examination.
    No. 82-0-0987.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Carlos A. Gomez O., applying for permission to take the Louisiana Bar Examination and, contingent on passing the examination, to be certified for admission to the Louisiana State Bar Association. Parish of Orleans.

Granted. Relator is permitted to take the bar examination which is forthcoming.


text:
    STATE of Louisiana v. Zeno DAVENPORT.
    No. 82-K-1118.
    Supreme Court of Louisiana.
    May 12, 1982.
   In re Zeno Davenport, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of Caddo. No. 120040.

On the showing made, writ denied. Previously issued stay order recalled.


text:
    STATE of Louisiana v. Ray JACKSON.
    No. 82-K-1134.
    Supreme Court of Louisiana.
    May 12, 1982.
   In re Ray Jackson, applying for writs of mandamus and certiorari and a stay order. Parish of Orleans. No. 245-863.

Denied.


text:
    STATE of Louisiana v. Edward J. WEST.
    No. 82-K-1150.
    Supreme Court of Louisiana.
    May 13, 1982.
   In re Edward J. West, applying for writs of certiorari, mandamus and review and stay order. Parish of Orleans. No. 286-537.

Granted. A continuance is ordered.


text:
    Charles J. KRAMER v. C. DONOVAN, Alwynn J. Cronvich, Sheriff of the Parish of Jefferson and the Jefferson Parish Sheriffs Office.
    No. 82-C-1079.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re C. Donovan, and Alwynn J. Cron-vich, Sheriff of the Parish of Jefferson, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit. 413 So.2d 204.

Denied.


text:
    STATE of Louisiana, ex rel. Nelson Ray CHARLES v. STATE of Louisiana, ex rel.
    No. 82-KH-1047.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Nelson Ray Charles, applying for remedial writs. Parish of Jefferson Davis. No. CR-1410-78.

The trial judge is ordered to rule on defendant’s motion for a new trial. In the event of an adverse ruling, the trial judge is ordered to appoint counsel to represent the defendant on appeal.


text:
    RAPIDES MERCHANTS ASSOCIATION, et al., v. RAPIDES PARISH POLICY JURY.
    No. 82-C-1058.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Rapides Merchants Association, et al., applying for writs of certiorari, or review. Parish of Rapides. No. 120746.

Granted and appeal reinstated. The “internal rule” of the Third Circuit supplementing Rule VII(5)(a) of the Uniform Rules of the Courts of Appeal is invalid.See CCP 561 and 2165 as amended, and Perkins v. Coker, La., 404 So.2d 902.


text:
    STATE of Louisiana, ex rel. Wilbert M. DORSEY v. Ross MAGGIO, Jr., Warden.
    No. 82-KH-0107.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Wilbert M. Dorsey, applying for remedial writs, to the Criminal District Court. Parish of Orleans. No. 226-982.

Denied.


text:
    STATE of Louisiana, ex rel. Willie WILLIAMS v. The COURT REPORTER/SECTION “G”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 82-KH-0483.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Willie Williams, applying for writ of mandamus. Parish of Orleans. No. 266-173.

Denied. Relator’s claims could have been raised by appeal, which was apparently waived. Relator’s claim to ús (that his lawyer failed to take an appeal against relator’s wishes) has not been presented to the district court, which must first rule on the claim.


text:
    Charlie W. JORDAN v. Ray T. SUTTON, Commissioner of Conservation, State of Louisiana.
    No. 82-C-1005.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Charlie W. Jordan, applying for writs of certiorari or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 411 So.2d 1170.

Denied.


text:
    STATE of Louisiana v. Raymond ROSS.
    No. 82-KH-1085.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Raymond Ross, applying for remedial writs. Parish of Terrebonne. No. 94187.

Denied.


text:
    Bruce CHAMPION, Jr., et al. v. PANEL ERA MANUFACTURING COMPANY, et al. v. KAISER ALUMINUM AND CHEMICAL CORPORATION and Mosinee Paper Corporation.
    No. 82-C-1003.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re American States Insurance Company of Texas, American States Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Natchitoches. 410 So.2d 1230.

Denied.


text:
    Antonio TIRANTE v. GULF STATES UTILITIES COMPANY, et al.
    No. 82-C-1016.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Ciba Geigy Corporation, applying for writ of certiorari, or review, to the Court of Appeal, First Circuit. Parish of East Baton Rouge. 412 So.2d 128.

Denied.


text:
    STATE of Louisiana, ex rel. Edward R. WYNN v. STATE of Louisiana.
    No. 82-KH-0890.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Edward R. Wynn, applying for writ of mandamus. Parish of Orleans. No. 272-897.

Denied.


text:
    Nolan CHATMAN v. THOR OFFSHORE BOAT SERVICE, INC.
    No. 82-C-0945.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Nolan Chatman, applying for certio-rari, or writ of review, to the Court of Appeal, Fourth Circuit. Parish of Plaque-mines. 410 So.2d 784.

Denied.

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


text:
    STATE of Louisiana, ex rel. Louis TROTTIE, Jr. v. STATE of Louisiana.
    No. 82-KH-0715.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Louis Trottie, Jr., applying for supervisory and remedial writs. Parish of Rapides. No. 199-997.

Denied.


text:
    STATE of Louisiana, ex rel. Daymond SANDERS v. Frank J. SHEA, Judge, Section “G” Criminal District Court, Parish of Orleans, State of Louisiana.
    No. 82-KH-0475.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Daymond Sanders, applying for writ of mandamus. Parish of Orleans. No. 274-214.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Eddie Lee JOHNSON v. STATE of Louisiana.
    No. 82-KH-0231.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Eddie Lee Johnson, applying for writ of mandamus. Parish of Orleans. No. 263-814.

Writ denied.


text:
    FINANCIAL CORPORATION v. George G. WEST.
    No. 82-C-0622.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Financial Corporation, applying for motion to recall writ of review and to recall stay order. East Baton Rouge Parish. No. 248449.

Reconsideration of 411 So.2d 469 granted. Previous action of this Court and stay order are set aside; the writ is denied.

CALOGERO, J., dissents from the action of the Court.


text:
    STATE of Louisiana ex rel. Roderick DAVIS v. STATE of Louisiana.
    No. 81-KH-2973.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Roderick Davis, applying for reconsideration of denied writ of February 12, 1982. Parish of Natchitoches. 411 So.2d 52.

Denied.


text:
    STATE of Louisiana ex rel. Joey L. BARNES v. STATE of Louisiana.
    No. 82-KH-1044.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Joey L. Barnes, applying for remedial writ. Parish of Terrebonne.

Granted. Relator is given until May 28, 1982 to file application for rehearing.


text:
    STATE of Louisiana ex rel. Travis E. BARKLEY v. STATE of Louisiana.
    No. 82-KH-1062.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Travis E. Barkley, applying for remedial writs. Parish of Terrebonne.

Granted. Relator given to May 28, 1982 to file application for rehearing.


text:
    Ernie B. BARKER v. RUST ENGINEERING COMPANY, J. E. Sirrine and Lamb-Gray Harbor Company.
    No. 82-C-1071.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Lamb-Gray Harbor Company, applying for remedial writs. Parish of Rap-ides. No. 107707.

Writ Granted.


text:
    Ernie B. BARKER v. RUST ENGINEERING COMPANY, J. E. Sirrine and Lamb-Gray Harbor Company.
    No. 82-C-1072.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Lamb-Gray Harbor Company, applying for remedial writs. Parish of Rap-ides. No. 107707.

Writ Granted.


text:
    J. C. GAUTREAU v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
    No. 82-C-0918.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Southern Farm Bureau Casualty Insurance Company and Insurance Farm Bureau Mutual Insurance Company, applying for certiorari, or writ of review, to the Court of Appeal, Third Circuit. Parish of Vermilion. 410 So.2d 815..

Granted.


text:
    Gary Neil FONTANA v. Kay Marie FONTANA.
    No. 82-K-0944.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Gary Neil Fontana, applying for remedial and supervisory writs and stay order. Ouachita Parish. No. 129494.

Granted. Sentence set aside as excessive. Remanded for resentencing.

DIXON, C. J., and CALOGERO and DENNIS, JJ., would grant the writ and bring the case up.


text:
    STATE of Louisiana ex rel. Elvis BROOKS v. Frank J. SHEA, Judge.
    No. 81-KH-2937.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Elvis Brooks, applying for writ of mandamus. Parish of Orleans. No. 261-032.

Granted. The trial judge is ordered to act on this application within 15 days.


text:
    STATE of Louisiana ex rel. Wendell A. MARTIN v. Judge Bernard BAGERT, Section “H”, Criminal District Court, Parish of Orleans.
    No. 82-KH-0372.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Wendell A. Martin, applying for writ of mandamus. Parish of Orleans. No. 263-888.

Writ granted. Application is transferred to district court for disposition.


text:
    STATE of Louisiana, ex rel. Anthony MURRAY v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 82-K-0985.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Anthony Murray, applying for remedial and supervisory writs. Parish of Orleans. No. 252-069.

Granted. The rulings of the trial court excluding evidence are reversed and the case is remanded for further proceedings.


text:
    STATE of Louisiana ex rel. Gerald R. WILSON v. STATE of Louisiana, PARISH OF JEFFERSON.
    No. 82-KH-1077.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Gerald R. Wilson, applying for writ of habeas corpus. Parish of Jefferson.

Writ granted only insofar as transferring this petition to the district court for consideration, and action.


text:
    STATE of Louisiana v. Gregory HUDSON.
    No. 82-K-1090.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Gregory Hudson, applying for writs of certiorari, prohibition, mandamus and stay order. Parish of DeSoto. No. 40776.

Granted. Probation revocation set aside. A bond forfeiture is not a plea of guilty nor usually a conviction. Remanded for further proceedings.


text:
    State of Louisiana ex rel. Jerry L. SUMLIN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 81-KH-3321.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Jerry L. Sumlin, applying for writs of certiorari and habeas corpus. Parish of Webster. No. 47068.

Denied.


text:
    STATE of Louisiana v. Randy MARINEAUX.
    No. 82-K-0119.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Randy Marineaux, applying for writ of certiorari. Parish of East Baton Rouge. No. 1-81-514.

Denied.


text:
    STATE of Louisiana ex rel. Samuel WILSON v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 82-KH-0311.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Samuel Wilson, applying for writ of habeas corpus. Parish of Orleans. No. 260-036, Section “F”.

Denied.


text:
    STATE of Louisiana, ex rel. Doyle JAMES v. CLERK OF COURT 20TH JUDICIAL DISTRICT COURT, PARISH OF WEST FELICIANA.
    No. 82-KH-0342.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Doyle James, applying for writ of mandamus. Parish of West Feliciana. No. 9068-A.

Denied. Moot.


text:
    STATE of Louisiana, ex rel. Leonard CRESSY v. Frank SHEA, Judge, Criminal District Court, Section “G”.
    No. 82-KH-0587.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Leonard Cressy, applying for writ of mandamus. Parish of Orleans. No. 263-820.

Denied. Appeal pending.


text:
    STATE of Louisiana ex rel. George LOYD v. CLERK OF COURT, SUPREME COURT OF LOUISIANA.
    No. 82-KH-0814.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re George Loyd, applying for writ of mandamus, to the 6th Judicial District Court. Parish of Tensas. No. 28256.

Denied.


text:
    STATE of Louisiana ex rel. Melvin BOWMAN v. Nathan Burl CAIN, Warden, Dixon Correctional Institute.
    No. 82-KH-0836.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Melvin Bowman, applying for writ of habeas corpus. Parish of Orleans. No. 235-076.

Writ denied. The district court has complied with this Court's order (# 81-KH-2808) by sending relator a copy of the transcript of his August 27, 1973 plea proceeding. Although the transcript bears an incorrect docket number, it appears in all other respects the document he was seeking. Thus, his claim that the district court did not comply with our order is without merit.


text:
    STATE of Louisiana ex rel. Charles E. TATE v. Warden Roger AUCION.
    No. 82-KH-0990.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Charles E. Tate, applying for writ of habeas corpus. Parish of East Baton Rouge. No. 255614.

Denied. Apj>eal pending.


text:
    STATE of Louisiana ex rel. Donald Reed BROWN v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 82-K-1036.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re Donald Reed Brown, applying for writs of certiorari (review). Parish of Cal-casieu. No. 11994-78.

Denied.


text:
    STATE of Louisiana v. John Glass DICKENSON, III.
    No. 82-K-1067.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re John Glass Dickenson, III, applying for writ of review or certiorari. Parish of Jefferson Davis. Nos. CR. 3840-81 and 3841-81.

Denied.


text:
    STATE of Louisiana ex rel. John A. GUAJARDO v. STATE of Louisiana.
    No. 82-KH-1102.
    Supreme Court of Louisiana.
    May 17, 1982.
   In re John A. Guajardo, applying for remedial writs. Parish of Calcasieu. No. 12391-81.

Denied.


text:
    CITY OF NEW ORLEANS v. Guy H. FARNELL.
    No. 82-K-0979.
    Supreme Court of Louisiana.
    May 7, 1982.
   In re Guy H. Farnell, applying for writs of certiorari, prohibition and mandamus. Traffic Court for the City of New Orleans. Parish of Orleans. No. F-214144-5C.

Application transferred to Criminal District Court, Parish of Orleans, which has appellate jurisdiction in this case. RS 13:1337.


author: FORET, Judge.

text:
    Joseph M. TOUCHET, Jr., Plaintiff-Appellant, v. Maxie BROUSSARD, Defendant-Appellee.
    No. 8407.
    Court of Appeal of Louisiana, Third Circuit.
    March 10, 1982.
    Anatole J. Plaisance, Baton Rouge, for plaintiff-appellant.
    Davidson, Meaux, Sonnier & Roy, M. Candice Hattan, Lafayette, for defendant-appellee.
    Before FORET, CUTRER and DOUCET, JJ.
   FORET, Judge.

Joseph M. Touchet, Jr. (Plaintiff) brought this workmen’s compensation action alleging that he is totally and permanently disabled as a result of personal injuries suffered in an accident arising out of and in the course of his employment by defendant, Maxie Broussard . Plaintiff sought to recover disability benefits and medical expenses incurred in the treatment of his injuries. In addition, plaintiff sought to recover penalties and attorney’s fees alleging that defendant had been arbitrary and capricious in failing to pay the benefits to which he is entitled.

Plaintiff contended in the trial court that he had suffered a severe injury to his back, as well as his left knee, in the accident and that he was totally and permanently disabled as a result thereof. The trial court found that plaintiff had failed to prove this. However, the trial court did find that plaintiff had sustained a 10% permanent disability of the left leg, entitling him to the schedule benefits for such a disability found in LSA-R.S. 23:1221(4)(h), (o).

The parties stipulated that all of plaintiff’s medical expenses, up to the time of trial, had been paid by defendant and that plaintiff was paid weekly compensation benefits of $76.16 for temporary total disability from the date of the accident until October 15, 1979, for a total payment of $10,967.04 in disability benefits. The trial court found that the amount paid to plaintiff for temporary total disability exceeded the amount he was entitled to receive under LSA-R.S. 23:1221(4)(h), (o) and that, since defendant was entitled to a credit under the provisions of LSA-R.S. 23:1223 for the amounts paid plaintiff for temporary total disability, plaintiff was entitled to no further recovery. The trial court also found that defendant’s termination of benefit payments to plaintiff was justified after defendant received a report from a medical expert stating that plaintiff could return to work with no restrictions and that no further treatment was necessary. Thus, the trial court denied plaintiff’s claim with prejudice.

We have examined the record and find that the trial court judgment is correct, and we affirm same.

All costs of this appeal are assessed against the plaintiff-appellant.

AFFIRMED.

APPENDIX I

JOSEPH M. TOUCHET, JR. : 15TH JUDICIAL DISTRICT COURT

VERSUS NUMBER: 68478-D

MAXIE BROUSSARD : LAFAYETTE PARISH, LOUISIANA

REASONS FOR JUDGMENT

This is a suit for workmen’s compensation benefits wherein plaintiff seeks benefits for total and permanent disability, future medical expenses, penalties and attorney’s fees.

On December 13,1976 plaintiff was working as a laborer at a dairy owned by Maxie Broussard. Plaintiff testified that as he was descending a ladder, he twisted his left knee and fell to the concrete floor. Plaintiff stated that because his leg and knee were swollen and hurting, that he did not work the rest of the day.

Plaintiff was examined the next day for his knee injury by Dr. Joseph W. Burley. Dr. Burley advised plaintiff to refrain from working for ten (10) days. After that period, plaintiff returned to work for two (2) weeks, at which time he was dismissed by defendant. Plaintiff was apparently examined by Dr. Burley approximately four to five times during the one month period immediately following his injury.

Because of continued complaints of knee pain, on March 21,1977 plaintiff was examined by Dr. William L. Meuleman, an orthopedic surgeon. Dr. Meuleman prescribed a course of conservative treatment for plaintiff’s knee condition from March, 1977 until February, 1978. On February 21, 1978, Dr. Meuleman performed surgery on plaintiff’s left knee; at that time, a broken piece of cartilage was removed. Dr. Meuleman followed plaintiff’s post-operative progression until May, 1978. Dr. Meuleman was of the opinion that the surgery had been successful. Plaintiff also testified that the knee pain had been alleviated and that his knee is well.

Plaintiff now contends that the accident in December of 1976 has also caused his current alleged lower back problems and that as a result he is totally and permanently disabled. Plaintiff asserts that his toes began hurting the day after the accident; he further contends that his back and right leg were hurting him during his course of treatment for his knee injury. Plaintiff testified that he now has pain in his right leg and in his lower back and that when he does things such as mowing his lawn, that he has to stop every 5-10 minutes because of the pain.

Plaintiff testified that he told Dr. Burley, his initial treating physician, that he also had back pain immediately following the accident. Plaintiff did not, however, call Dr. Burley at trial or through deposition testimony to testify as to the nature of plaintiff’s original complaints of injury or as to the diagnosis which the doctor made and his corresponding treatment thereof. Plaintiff did attempt to introduce, however, in connection with the deposition testimony of another examining physician, a report of Dr. Burley of January 25, 1977 concerning plaintiff’s initial complaints and treatment. Defendant timely objected to the introduction of the report; this evidence as presented is hearsay and is therefore not properly before this Court.

Plaintiff also testified that he was examined by Dr. John J. McCutchen, a neurologist, and by Dr. Alexander E. Brodsky, an orthopedic surgeon, in connection with his injury sustained in the December, 1976 accident. Plaintiff has also attempted to introduce the reports of these physicians along with the report of Dr. Burley; as discussed above, these reports are not properly before the Court. Plaintiff did not call Dr. McCutchen or Dr. Brodsky to testify on his behalf, and it must therefore be presumed that their testimony would have been adverse to his cause. It is notable, however, that plaintiff did testify that he did not complain of his alleged back condition to these physicians.

Plaintiff testified at trial that he told Dr. Meuleman about his back condition. Plaintiff also testified, however, that his wife accompanied him on his office visits with Dr. Meuleman, and that it was she who spoke with Dr. Meuleman concerning plaintiff’s complaints. He further stated that because his hearing is impaired, that he is not certain what his wife told Dr. Meule-man.

Dr. Meuleman testified that at no time during his course of treatment for the December, 1976 injury did plaintiff complain to him of back, leg, foot, or thigh pain. Dr. Meuleman stated that although plaintiff volunteered no complaints of back pain, that nevertheless he specifically questioned plaintiff concerning lower back pain; plaintiff’s response was that he had had some pain in the groin. Dr. Meuleman further testified that he spoke directly with the plaintiff, and not through plaintiff’s wife.

Plaintiff was last examined by Dr. Meuleman in April, 1980. Dr. Meuleman testified that this was the first time that the plaintiff had complained to him of back pain; Dr. Meuleman said that plaintiff told him that lately he had had back pain while working in his yard at home. Plaintiff admitted that he told Dr. Meuleman in April, 1980 that while working in his yard he began experiencing pain in the left hip, but he denied that this was the first time that he had complained of this pain to Dr. Meuleman. In deposition in October, 1979, when asked, “Did you hurt anything else besides your left knee?”, plaintiff replied, “No, sir.” (Deposition Touchet, pg. 6). At trial, plaintiff explained that he did not remember saying this in his deposition.

Plaintiff was examined by Dr. David M. Jarrott, a neurosurgeon, on March 17, 1980. At that time, plaintiff complained of pain in his left leg, knee, and radiation of pain down into the toe. Based upon the history as given to him by the plaintiff and upon this single clinical examination performed over 3 years after the accident, it was the opinion of Dr. Jarrot that plaintiff was suffering from chronic lumbar neuralgia, which he felt was the result of a previously unrecognized or untreated chronic lumbar disc syndrome. He further opined that it is plausible that both the initial knee pain following the accident and the current chronic back pain emanate from irritation of a nerve root in the spine at the L-5 or S-l level. Therefore, under Dr. Jarrott’s “theory”, (Deposition Jarrot, pg. 24), plaintiff’s current alleged back difficulty could be associated with the December, 1976 accident.

In contrast to the evaluation presented by Dr. Jarrot, Dr. Meuleman was of the opinion that plaintiff’s accident in December of 1976 had resulted only in an injury to the left knee, to which he attributed a resulting ten percent permanent disability of the left leg. He did not relate plaintiff’s current back problem to the accident. As the treating physician, it is the opinion of this Court that the testimony of Dr. Meule-man who was the physician of plaintiff’s choice, should be afforded greater weight than that of the physician who examined plaintiff for purposes of evaluation.

At the time of trial, plaintiff was 44 years old. He has an eighth grade education and has worked as a laborer most of his adult life. He has undergone psychiatric treatment for 17 years, has been determined to be disabled because of psychiatric disorder, and is currently receiving Social Security disability benefits for that reason.

After reviewing the evidence as a whole, it is the opinion of this Court that plaintiff has failed to prove by a preponderance of the evidence that his current alleged back condition is the result of the December, 1976 accident. It is also the opinion of this Court, however, that plaintiff has sustained a ten percent permanent disability of the left leg as a result of this accident.

The parties have stipulated that all medical bills have been paid by defendant and that plaintiff was paid weekly compensation benefits of $76.16 for temporary total disability from the date of the accident, December 13, 1976, until October 15, 1979, a total of $10,967.04. Defendant is entitled to a credit for the payments made to plaintiff for temporary total disability against his obligation to pay schedule benefits for the ten percent permanent disability to plaintiff’s left leg. La.R.S. 23:1223. Because plaintiff has already received benefits for temporary total disability in excess of the amount to which he is entitled under the scheduled disability benefits provisions of the workmen’s compensation statute, La. R.S. 23:1221(4)(h), (o), he is not entitled to further recovery.

Plaintiff also seeks an award of penalties and attorney’s fees incurred as a result of defendant’s alleged arbitrary and capricious termination of compensation benefits. Compensation benefits were terminated after defendant received Dr. Meuleman’s report of August 29, 1979, in which he stated that it was his opinion that plaintiff could return to work and that no further treatment was necessary. It is therefore the opinion of this Court that defendant’s termination of benefits was justified. . Plaintiff’s claim for penalties and attorney’s fees is denied.

Accordingly, let there be judgment in favor of defendant, MAXIE BROUSSARD, and against plaintiff, JOSEPH M. TOU-CHET, JR., denying plaintiff’s claim for workmen’s compensation benefits for total and permanent disability, future medical expenses, penalties, and attorney’s fees.

The expert witness fee of Dr. David M. Jarrot is set at $200.00.

The expert witness fee of Dr. William L. Meu lemán is fixed at $200.00 and is hereby cast as costs. Costs to be paid by plaintiff.

An appropriate judgment will be signed upon presentation.

Lafayette, Louisiana this 29th day of October, 1980.

s/Lucien C. Bertrand. Jr.

LUCIEN C. BERTRAND, JR.

District Judge

      . Defendant’s workmen’s compensation insurer, Southern Farm Bureau Casualty Insurance Company, was not made a party to these proceedings.

      . “§ 1223. Deductions from benefits
      Where compensation has been paid under subdivisions (1), (2), or (3), of R.S. 23:1221, the amount of such payment shall be deducted from any compensation allowed under subdivision (4) thereof or under Sub-part C of this Part.”

      . We annex hereto, as Appendix I, a copy of the trial court’s reasons for judgment with which we agree, but do not deem necessary to repeat or elaborate on in our review of the case.


author: LOTTINGER, Judge.

text:
    J. Wiley SMITH, d/b/a J. Wiley Smith, Realtor, v. Shile D. McCARTY, Jr.
    No. 14701.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Lee Herrington, Jr., Baton Rouge, for appellee.
    William S. Strain, Baton Rouge, for appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an action ex contractu by plaintiff, J. Wiley Smith doing business as J. Wiley Smith, realtor, against defendant, Shile D. McCarty, Jr., for a real estate commission, attorney’s fees, and interest. From a judgment in favor of plaintiff, defendant has appealed.

FACTS

On September 8, 1980, defendant-seller accepted an offer from Dennis Ponsonby, and a purchase agreement was signed by the parties on that date. A real estate commission was fixed at six percent of the sale’s price ($39,900.00) and was the obligation of the seller. The purchase agreement also provided that the buyer was to obtain a loan, to be applied for on October 8,1980, at an interest rate of 10.95 percent. Additionally the agreement provided that the act of sale was to take place on or before November 14, 1980. The agreement specifically provided that:

“Time is of the essence in this contract. In the event of default by either party the non-defaulting party shall have the right to demand and sue for specific performance and/or damages. The defaulting party under this contract shall also be liable for the Realtor’s fees and all attorney’s fees and other costs incurred in the enforcement of any and all rights under this contract.”

The purchaser applied for a Mortgage Finance Authority (MFA) loan on October 8, 1980. The MFA loan was the only loan available at an interest rate of 10.95 percent, and the earliest date that same could be applied for was October 8. The loan was not approved as of November 14, 1980. Consequently, the purchase agreement lapsed and the sale was never consummated.

The branch manager of the mortgage company which accepted the application from the purchaser testified that the only difficulty she encountered in processing the loan was a delay experienced in obtaining the required appraisal of defendant’s house. On October 24,1980, she had everything she needed to put together the loan package, with the exception of the appraisal. By the time she actually received the appraisal on November 3, she had a backlog of other MFA loans waiting to be processed. MFA rules and regulations prohibited her from giving any purchaser’s loan a priority over other pending loans.

The trial judge concluded in his oral reasons for judgment that because a MFA loan was the only one available at 10.95 percent interest, and that same could not be applied for prior to October 8, 1980, that both parties including the seller realized and understood that the loan was to be financed through the MFA program. He additionally concluded that the seller either refused or failed to cooperate with the purchaser in obtaining a timely appraisal of the subject property. Subsequent to the execution of the purchase agreement, seller had his telephone number changed to an unlisted number. Additionally, deadbolt locks secured the door of the subject house, preventing the use of a key in the possession of the real estate agent, and seller required that plaintiff and purchaser act through the seller’s father as an intermediary rather than dealing with him directly.

SPECIFICATIONS OF ERROR

Defendant-appellant contends the trial judge erred in finding that defendant breached his obligations under the purchase agreement, that plaintiff proved by a preponderance of the evidence that defendant was the cause of the act of sale not being passed before the expiration date, and in finding an obligation on the part of the seller to assist the purchaser in obtaining a mortgage loan.

I

In National Safe Corporation v. Benedict and Myrick, Incorporated, 371 So.2d 792 (La.1979), the Supreme Court enunciated the principles contained in La.C.C. arts. 1901, 1903, 1963 and 1965, as follows:

“[N]ot all obligations arising out of contract need be explicitly stated. Into all contracts, therefore, good faith performance is implied. Furthermore, everything that by equity is considered incidental to the particular contract, or necessary to carry it into effect, is also a part of all agreements.”

The seller has an obligation to cooperate with the purchaser in obtaining the necessary financing to consummate the purchase agreement. The obligation to cooperate includes the obligation to make that which is being sold readily available for appraisal. The appraisal of real estate pri- or to the approval by a lending institution of a loan is customary practice in all banks and lending institutions. Though the obligation to cooperate with a purchaser is not express as is the furnishing by the seller of the termite inspection certificate, as provided in the purchase agreement, the obligation to cooperate as far as the obtaining of an appraisal is implied. Otherwise, to allow the seller to thwart the efforts of the purchaser in fulfilling the requirements of the purchase agreement would afford the seller the opportunity to circumvent the purchase agreement without being liable for default.

The trial judge accepted the testimony of plaintiff’s witnesses, which testimony indicates that the defendant breached his obligations under the purchase agreement. By having an unlisted telephone number, by securing the house with deadbolt locks, and by forcing the plaintiff and purchaser to deal with the seller’s father, the defendant delayed the completion of the appraisal to such an extent that it became impossible for the loan to be approved in time for a November 14 closing.

II

The trial judge apparently found as fact that without the delay caused by the defendant, the loan would have been approved timely and the closing date set in the purchase agreement would have been met. We have studied the record carefully and agree with the conclusion reached by the trial judge.

It is clear that a realtor is entitled to receive a commission, even when the sale is never consummated, if he has procured a buyer ready, willing and able to purchase on the seller’s terms, and the failure to consummate the sale is due to the seller’s fault. The failure to consummate the sale in this case was due to the seller’s failure to cooperate in good faith.

Therefore, for the above and foregoing reasons, the judgment of the trial court is affirmed at defendant-appellant’s costs.

AFFIRMED.


text:
    James PELLERIN v. TUDOR CONSTRUCTION COMPANY, Commercial Union Assurance Company, T. Clayton Price and Century Marble and Tile Corp.
    No. 14726.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.
    Rehearing Denied June 23, 1982.
    Allen J. Borne, Borne, Rogers & Senette, Franklin, for plaintiff.
    Howard W. Martin, Martin & Leonard, Ltd., Lafayette, for intervenor Employers Commercial Union Ins. Co.
    John Blackwell, Gibbens & Blackwell, New Iberia, for Tudor Const. Co., Commercial Union Ins. Co. and T. Clayton Price.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ.
   LOTTINGER, Judge.

This is an “executive officer” suit wherein plaintiff, James R. Pellerin, sued his employer, Tudor Construction Company, Inc., his employer’s insurer, Commercial Union Assurance Company, and T. Clayton Price, superintendent for the plaintiff’s employer. The suit is for personal injury damages sustained on February 6, 1976, when plaintiff slipped and fell off a wall while in the course of his duties as a carpenter, causing a serious head injury. Tudor Construction Company was dismissed from the suit on a peremptory exception of no cause of action on the grounds that it was the employer of plaintiff, and that plaintiff’s sole remedy against it was in workmen’s compensation, La.R.S. 23:1032. By the time of trial, the only remaining defendants were T. Clayton Price and Commercial Union Assurance Company.

At trial, defendants moved for a directed verdict at the close of plaintiff’s case. The motion for a directed verdict was denied by the trial court. The defendants put on no additional evidence, and the case was submitted to the jury. The jury returned a verdict for the plaintiff. The defendants then moved the trial court to grant a new trial on the issue of liability, arguing that the jury verdict in favor of plaintiff was clearly contrary to the law and evidence, pursuant to La.C.C.P. art. 1972. Motion for a new trial on these grounds was granted by the trial court. Because no appeal lies from the granting of a motion for a new trial since same is not a final judgment, the plaintiff applied for supervisory writs to this court, alleging that he would sustain irreparable injury if forced to go through another trial. This court granted a writ of certiorari and ordered the record to be transmitted from the trial court. All proceedings in the trial court were held in abeyance pending this court’s determination of the propriety of the trial court’s actions under the unique circumstances presented.

The accident from which the suit arose occurred on February 6,1976. The plaintiff was employed as a carpenter for Tudor Construction Company, which at the time of the accident was engaged in construction of Inglewood Mall in Morgan City. On the morning of the accident, plaintiff left his residence in Verdunville to travel by car to Morgan City. Weather conditions were rainy and stormy, and plaintiff began to wonder if work were possible that day. Plaintiff returned home to call the work site and find out whether he was to work that day. Plaintiff’s wife contacted defendant T. Clayton Price on the telephone. Price informed Mrs. Pellerin that plaintiff should indeed report to work, and plaintiff did so.

After reporting to work, plaintiff was assigned by Price the task of finishing the window frames for an outer wall of a building. This task required plaintiff to work from a scaffold outside of the wall. The scaffold was about 25 feet inside of an overhang roof, but was otherwise exposed to the elements. This overhang was approximately 20 feet high.

The wall which plaintiff was working with was approximately five feet high. Plaintiff’s task was to do precision work on the window frames which would allow the wall to be completed. The already completed portion of the wall was covered with a sheet of visqueen for protection. The vis-queen was held in place by a number of bricks on top of the wall. Plaintiff used a scaffold to finish the window frames. He was assisted in his task by a helper. The helper’s job was to move the scaffold along the wall as requested by the plaintiff. Plaintiff ordinarily climbed down from the scaffold while it was being moved by the helper. However, just before the work was completed, the plaintiff elected to step from the scaffold onto the visqueen-covered wall. In so doing, the plaintiff tripped over one of the bricks holding down the visqueen, and fell headfirst to the floor inside the wall, causing him serious injuries.

At trial, the plaintiff sought to prove that the rainy and cloudy weather conditions brought moisture into plaintiff’s work area from under the overhang, that the floor and the scaffolding where plaintiff was ordered to work were wet from rainwater, that the scaffold was slippery and dangerous from moisture and thus could not be safely ascended and descended, and that plaintiff had no choice but to climb over to the wall so that the scaffold could be moved by the helper. Thus, the plaintiff argued, his fall from the wall was caused by the negligence of T. Clayton Price in ordering him to work under such dangerous conditions.

The plaintiff has not assigned formal specifications of error, but basically argues that the trial court abused its discretion in granting a new trial on the issue of liability. He contends that the jury’s verdict in his favor was supported by the law and evidence, and points to the denial of a directed verdict as an indication that there was evidence from which a jury could return such a verdict. The defendants argue that the granting of a motion for a new trial is not inconsistent with the denial of a directed verdict for defendants, even where defendants decline to put on further evidence after the directed verdict has been denied. The defendants further assert that the motion for a new trial was properly granted, in that the jury verdict was clearly contrary to law and evidence. Alternatively, the defendants argue that certain statements made during the voir dire examination of potential jurors prejudiced the jury, and ask for a new trial under La.C.C.P. art. 1973. The judgment granting a new trial did not mention the alleged voir dire irregularities, and stated as grounds therefor only that the jury verdict was clearly contrary to law and evidence.

It is the task of this court to decide whether the trial court abused its discretion in granting a new trial. If we find an abuse of discretion, we must decide the case on its merits, inasmuch as the entire record is before us, La.C.C.P. art. 2164, Gonzales v. Xerox Corporation, 320 So.2d 163, 166 (La.1975). Should we find no abuse of discretion in granting a new trial, we will recall the writ and remand for the new trial.

The motion for a directed verdict, La.C. C.P. art. 1810(A), is a relatively new procedure made available to Louisiana litigants. In Campbell v. Mouton, 373 So.2d 237 (La. App. 3rd Cir. 1979), the Third Circuit held that the correct standard for ruling upon a motion for directed verdict was that applied by the federal courts, inasmuch as La.C.C.P. art. 1810(A) was adopted verbatim from Rule 50(a) of the Federal Rules of Civil Procedure. The court in Campbell v. Mouton, supra, cited Boeing Co. v. Shipman, 411 F.2d 365 (C.A. 5th Cir. 1969) for the following standard as to directed verdicts:

“On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s case — but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.”

This court has applied the same standard for directed verdicts in Gunter v. Plauche, 399 So.2d 727 (La.App. 1st Cir. 1981), and in Perkins v. American Machine and Foundary Company, 385 So.2d 492 (La.App. 1st Cir. 1980), writ denied 393 So.2d 727 (La.1980).

La.C.C.P. art. 1972 states in part that a new trial shall be granted where the judgment appears clearly contrary to the law and the evidence. The Supreme Court held in early cases that the standard for granting a motion for new trial on this ground was as follows:

“If the judge of the district court was of the opinion that the verdict of the jury was ... in direct and flagrant violation of the law and the evidence, and in utter disregard of his charge, he should have set the verdict aside and granted a new trial.” Halliday v. Lanata, 25 La.Ann. 373 (1873). (Emphasis supplied.)

In Dalgarn v. New Orleans Land Company, 161 La. 653, 109 So. 345 (1926), the Supreme Court stated:

“We must remember that this was a jury trial, and it was the province of the jury to pass upon the facts, and of the judge to render judgment thereon if he concurred in their finding of fact, or, if, in his wise judgment, the jury had improperly or incorrectly resolved the facts, or for any good reason which addressed itself to his conscientious conviction, to set the verdict aside.”

This court in Malbreaugh v. City of Baton Rouge, 68 So.2d 619 (La.App. 1st Cir. 1953), stated: “While courts are loathe to disturb the judgment of a judge or jury unless manifestly erroneous, it is clearly the duty of the lower court as well as the appellate courts to do so when in their opinion the judgment is manifestly erroneous.” This case compares the standard for granting a new trial to the manifest error rule for appellate review.

Thus, we are of the opinion that the standards for a directed verdict and for granting a new trial because the jury verdict is contrary to the law and evidence are not the same. The difference between these two standards is the posture which the trial judge adopts in examining the evidence. In a motion for a directed verdict, the trial judge must examine all the facts and reasonable inferences in the light most favorable to the non-mover, and his evaluation of the credibility of witnesses has no part. Campbell v. Mouton, supra. However, in a motion for a new trial, the trial judge is free to evaluate the evidence without favoring either party; he may draw his own inferences and conclusions, and may evaluate the credibility of the witnesses to determine if the jury has erred in giving too much credence to an unreliable witness. Thus, the standard for a motion for a new trial is not nearly as stringent as that for a directed verdict. This is rightfully so, inasmuch as a directed verdict deprives a party of his right to be heard by a jury, whereas granting a motion for a new trial merely gives the party an opportunity to present evidence to a second jury, since the first jury has returned an unauthorized or unjust verdict. For these reasons, the fact that the trial judge has refused to direct a verdict in favor of defendants does not preclude his ability to grant a new trial, even when the defendants have presented no additional evidence. The trial judge may rule that the evidence is legally sufficient to make a directed verdict improper, but this mere legal sufficiency does not preclude the trial court from granting a new trial where the verdict does not do substantial justice or is against the manifest weight and probative effect of the evidence. We note parenthetically that the Alabama and Florida courts have long since taken the same position. Alabama: Hodges & Company, Inc. v. Albrecht, 288 Ala. 281, 259 So.2d 829, 832 (1972); Pollard v. Rogers, 234 Ala. 92, 173 So. 881 (1937). Florida: Pyms v. Meranda, 98 So.2d 341 (Fla.1957); Carney v. Stringfellow, 73 Fla. 700, 74 So. 866 (1917).

Although as a general proposition it is not improper to grant a new trial following a denial of a directed verdict, we must still determine whether the granting of a new trial in the instant case was an abuse of discretion in light of all the evidence adduced at the trial court. We have examined the entire record thoroughly, and con-elude that the trial judge did not abuse his discretion in granting a new trial on the grounds that the jury verdict was contrary to the law and the evidence. Trial testimony indicated that the plaintiff never complained of the working conditions on and around the scaffold; that defendant T. Clayton Price specifically warned plaintiff to stay off the wall because of the danger of tripping over a brick; that the plaintiff had access to an ordinary stepladder to use to ascend and descend the scaffold if he felt that the scaffold ladder was dangerously slippery, and that the plaintiff did not request his helper to bring him a stepladder; and finally that the bricks on top of the wall were clearly distinguishable from those composing the wall and were easily observable from the area of the scaffold. This testimony not only suggests the absence of negligence of the defendants, but also the contributory negligence of the plaintiff. In light of same, the decision of the trial court to grant a new trial was not an abuse of its discretion.

Because the entire record of the case is before us, it may appear that under La.Civ. Code P. 2164 we could rule on the merits of the case at this time. However, the only issue presented by the writ application was whether the trial judge abused his discretion in granting a new trial. The trial judge ordered a new trial on the merits and we have found same not to be an abuse of discretion. We do not know the reasons for this order, and do not intend to usurp the authority of the trial judge to grant a new trial as he deems necessary. We therefore remand the cause to the trial court for a new trial.

Therefore, for the above and foregoing reasons, the writ of certiorari previously issued by this court in this cause is hereby recalled, and the cause remanded to the trial court for a new trial, as per judgment of the trial court dated May 19, 1981. All costs of these proceedings before this court are assessed to plaintiff-relator, James R. Pellerin.

WRIT RECALLED, CAUSE REMANDED.

      . Suit against an “executive officer” for negligence is available to plaintiff because the injury occurred prior to the 1976 amendments to La. R.S. 23:1032, the exclusive remedy provision.

      . Another party defendant, Century Marble and Tile Corporation, was dismissed with prejudice prior to trial on the joint motion of plaintiff and this defendant.

      . It must be noted that Alabama has a different standard for directed verdicts; the court will refuse an “affirmative charge” to the jury if there is a “scintilla of evidence" in favor of non-mover, rather than in Louisiana, where we look to determine whether there is substantial evidence opposed to the motions, that is, “evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach differing conclusions.” Boeing, supra.


author: LOTTINGER, Judge. EDWARDS, J.,

text:
    James PARKE v. Gene RICCA.
    No. 14732.
    Court of Appeal of Louisiana, First Circuit.
    April 13, 1982.

      Donald R. Weber, Baton Rouge, for plaintiff-appellee.
    Richard Derbes, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and SHORTESS, JJ. ,
   LOTTINGER, Judge.

This is an action in quant/ minoris wherein James Parke sued Gene Ricca for a reduction in the purchase price of a house which contained an allegedly defective air conditioning unit. From judgment of the trial court in favor of plaintiff, defendant has appealed.

On August 22, 1980, James Parke (plaintiff-appellee) bought a house located at 14347 Acacia Street, Baton Rouge, Louisiana, from Gene Ricca (defendant-appellant). Plaintiff visited the house on at least three occasions prior to signing a purchase agreement. On every occasion he noticed that the house was warm and that the air conditioning was blowing warm air. Plaintiff asked Michael Ricca, defendant’s son who was living in the house at the time, whether the air conditioning worked properly. Michael Ricca’s response was that he had not had any troubles but that he operated it at 80 degrees.

Plaintiff prepared a punchlist of items that he wanted repaired prior to passing the act of sale. The air conditioner was not mentioned. Plaintiff did not move into the house until around September 9, 1980, after returning from his honeymoon.

The trial judge reduced the purchase price of the residence by $450.00 for a defective air conditioning unit, after concluding that it had a hidden defect.

SPECIFICATIONS OF ERROR

Defendant-appellant Gene Ricca basically argues that the trial court erred in holding: 1) that the air conditioning unit was defective, 2) that the defect .was not discoverable through simple inspection, and 3) that the plaintiff was justified in relying on statements of defendant’s son, the previous occupant, that the air conditioner worked satisfactorily, in lieu of further inspection by the plaintiff.

Testimony at trial indicated that plaintiff discovered that the air conditioner was not working properly almost immediately after returning home from his honeymoon. Plaintiff received similar complaints from workmen who’d remodeled parts of the house while plaintiff and his wife were away. This, together with the fact that the unit was blowing warm air prior to the passage of sale, apparently led the trial court to conclude ■ that the unit was defective and that this defect existed prior to the sale. This conclusion is fully supported by the record.

Louisiana Civil Code Article 2521 states that apparent defects which can be discovered by simple inspection are not redhibi-tory vices. The Louisiana Supreme Court in Pursell v. Kelly, 244 La. 323, 152 So.2d 36, 41 (1963) defined “simple inspection” as follows:

“Article 2521 of the Civil Code excludes, from the vices for which redhibition may be demanded, apparent defects ‘that is, such as the buyer might have discovered by simple inspection * * * ’. Inspection, as defined by Webster’s New International Dictionary, 2nd Ed., means a strict or prying examination of the article by the vendee with a view of ascertaining its soundness. However, the Code limits the exclusion of warranty to those defects discoverable by a simple inspection. This, it is manifest, relieves the buyer of examining the inner or hidden parts of the object of the sale for the purpose of ascertaining the existence of latent defects.”

In Darville v. Daigle Pontiac-Buick-GMC, Inc., 399 So.2d 1252, we held that a buyer was not put on notice of a defective leak in a car when he observed standing water on the floor, since the presence of water was attributed by the car salesman to a broken window and/or someone leaving a window down. The instant case reveals similar circumstances, and supports the trial court’s conclusion that the defect was not apparent.

Bermes v. Facell, 328 So.2d 722 (La.App. 1st Cir. 1976), is factually quite similar to the instant case. In that case there was a conflict as to whether an express warranty was given that the air conditioning would maintain a 20 degree differential between the inside and outside temperatures, but this court said that it was implied in the sale of a house with a central air conditioning system that the system is of adequate capacity to comfortably cool the house. The facts therein also showed that plaintiff visited the house before the purchase, noticed it to be warm inside and mentioned that fact to defendant, who responded that the children were running in and out of the house, causing it to be warm. This court held that an ordinary, prudent buyer is not held to the same standard that would be required of an expert in air conditioning, and affirmed an award which gave the buyer a new air conditioning unit.

The trial judge herein placed defendant’s son in a higher position than a mere tenant and felt that his response to plaintiff’s inquiry as to the condition of the air conditioner relieved plaintiff from any further inspection. In his oral reasons for judgment, he referred to “Mr. Mike Ricca’s statement that he liked it like that and the machine worked — or the air-conditioning unit worked to his satisfaction constantly.” The simple inspection requirement of Pur-sell did not require plaintiff to examine the inner and hidden parts of this air conditioning unit, especially after inquiring and receiving assurance from the defendant’s son that the air conditioning worked to his satisfaction. We find no error by the trial court in this regard.

Therefore, for the above and foregoing reasons, the judgment of the trial court in favor of plaintiff-appellee is hereby affirmed at defendant-appellant’s costs.

AFFIRMED.

EDWARDS, J.,

dissents. The plaintiffs’ numerous inspections of the A/C unit blowing warm, not cold, air rendered the defect apparent and not redhibitory.