text:
    STATE of Louisiana v. Jack K. BAKER.
    No. 83 K 655.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    John M. Mamoulides, Dist. Atty., Eric Honig, William C. Credo, III, Asst. Dist. Attys., Gretna, for plaintiff-appellee; Louise Korns, Asst. Dist. Atty., Gretna, of counsel.
    Ferdinand J. Kleppner, Law Offices of Ferdinand J. Kleppner, Metairie, for defendant-appellant.
    Before KLIEBERT, BOWES and GRIS-BAUM, JJ.
   KLIEBERT, Judge.

Defendant, Jack K. Baker, was charged by bill of information with second degree battery upon Joycelyn Baker in violation of LSA-R.S. Article 14:34.1. On March 2, 1983, the defendant was arraigned and pled not guilty. On July 19, 1983, the defendant, represented by counsel, withdrew his former plea and entered a plea of guilty to LSA-R.S. Article 14:35 — simple battery.

After a pre-sentence investigation report was prepared, received and a sentencing hearing held, the trial court sentenced the defendant to the maximum penalty allowed for the crime charged, i.e., to serve six (6) months in the parish prison and to pay a fine of $500.00 and costs. It is from this sentence that defendant sought a review by writ application to this court.

Defendant challenges the sentence imposed by raising two assignments of error: (1) The trial court erred in failing to consider the deposition of the wife-victim and evidence of promiscuous marital infidelity and provocation by the wife-victim, and (2) The trial court erred in sentencing the defendant to the maximum sentence of six (6) months and a fine of $500.00 plus costs.

Although the defendant entered a guilty plea, the facts and circumstances of the crime were presented in the presentencing investigation and supported by the testimony offered by the defendant at the sentencing hearing.

According to the defendant’s testimony, on January 26, 1983, defendant and his wife were at a lounge having drinks. An argument developed over the wife’s flirtations, so they decided to return home. On the way home, his wife verbally abused him and his family and then bit him on the arm and thumb while he was driving their automobile. In the course of disengaging his hand from his wife’s mouth, he struck her in the nose, causing it to bleed.

The wife denies she provoked the blow to the nose; but, did not specifically refute the defendant’s version of the incident. Although she sought no medical treatment or attention for the injuries she claims to have sustained, she testified the blow broke her nose and left it out of alignment. No medical evidence to show the extent of the injury to her nose was presented. The trial judge observed that her nose was obviously out of alignment, but there was also some testimony indicating her nose had been previously broken and there had been an operation requiring the fracture of the nose to correct a deviated septum a short time prior to the incident involved here.

There was also evidence indicating both the wife and husband were more than social drinkers and had previously been involved in problems because of their drinking. At the sentencing hearing, the husband offered and the judge allowed the introduction of a deposition given by the wife on the day following the incident involved here. In that deposition, she related the details of her marital infidelity after the consumption of substantial alcohol. Additionally, she testified that her husband had not physically abused her prior to the incident involved here.

Since the deposition was in fact introduced in evidence and the defendant was allowed, at the sentencing hearing, to question the victim regarding the deposition, the defendant’s first assignment of error has significance only with respect to the second assignment of error, i.e., did the trial judge properly apply the guidelines of LSA-C.Cr.P. Article 894.1 in imposing the maximum sentence and was the sentence, although within the statutory limits, excessive? Hence, we consider the first assignment of error only as it relates to the second assignment of error.

Although the wife’s deposition would not be relevant in establishing the defendant’s culpability for breaking her nose, that factor was no longer at issue because the defendant had pled guilty. Nevertheless in State v. Washington, 414 So.2d 313 (La.1982) at 315, our Supreme Court held that “[t]he source of information from which a sentencing court may draw are extensive, and traditional rules of evidence are not bars to consideration of other relevant information. State v. Douglas, 389 So.2d 1263 (La.1980).” See also State v. Williams, 412 So.2d 1327 (La.1982). Thus, in determining whether the sentence, although within the statutory limits, was excessive, the deposition can and will be considered.

Trial judges are granted great discretion in imposing a sentence, but even sentences within statutory limits may be excessive under certain circumstances. State v. Jones, 398 So.2d 1049 (La.1981); State v. Robicheaux, 412 So.2d 1313 (La.1982). Sentences must be individualized to be compatible with the offenders as well as the offenses. In deciding whether to confine a defendant or grant probation, the judge should consider those facts enumerated in LSA-C.Cr.P. Article 894.1(A) and (B). State v. Jones, supra.

Here, at the time of sentencing, the trial judge made the following observations:

“Okay, the Court is satisfied from the facts indicated in the probation office and the testimony that I’ve heard today and the observations that I’ve made of the victim in this case today that was called in her to have to undergo all of this again. The Court believes that the defendant in this case should be, and the Court does hereby sentence Mr. Baker to the Parish Prison to serve a term of six months and pay a fine of five hundred dollars and all costs of these proceedings. Take a seat over there.”

but did not consider the specific evidence submitted by the defendant.

The evidence submitted by the defendant shows the victim provoked the defendant’s actions by biting him on the arm and cursing his mother and his children by a previous marriage. Her actions induced the commission of the crime and although the provocation fails to constitute a defense, it does provide grounds tending to excuse or mitigate the defendant’s criminal conduct which should be considered in imposing the sentence.

The record also reveals that Jack Baker was previously married and is the father of two children by a previous marriage. Although the record does not show whether the defendant is currently supporting his children, the imprisonment of the defendant would entail hardships to himself and to his dependents for they would be deprived of his income during the period of incarceration.

The defendant has no prior convictions and no prior arrests other than a then pending driving while intoxicated charge. He believed the charge had been dismissed and at the time of sentencing was taking positive steps to dispose of it. Although the victim testified at' the sentencing hearing that the defendant had previously beaten her, in her deposition, given the day after the incident involved here, she testified there was no prior beating, even when she was discovered in an act of marital infidelity.

The defendant also submitted a substantial number of letters from people, in different walks of life, all attesting to the defendant’s good temperment, moral habits and employment record.

The defendant has been divorced from his wife (on the grounds of adultery), and at the time of sentencing was gainfully employed and living in Dallas, Texas. Therefore, a re-occurrence of the crime is not likely. Nor is there an apparent need to protect the victim here from further abuses.

Considering the mitigating factors, it is clear the public interest is not served by incarcerating the defendant. Rather, adherence to the guidelines of LSA-C.Cr.P. Article 894.1 requires a sentence compatible to the severity of the crime in this incident.

The trial judge, however, disregarded the Department of Corrections’ recommendations made in the pre-sentence report and did not consider the mitigating factors shown by the defendant at the sentencing hearing, nor was there minimal compliance with the requirement of LSA-C.Cr.P. Article 894.1(C). This action, we believe, constituted a manifest abuse of his discretion and a violation of the defendant’s constitutional protection against excessive punishment. Thus, the prerequisite set by .the Supreme Court, State v. Prados, 404 So.2d 925 (La.1981), for setting aside the sentence is present in this case.

Accordingly, the sentence imposed by the trial judge is set aside and the case remanded to the trial judge for sentencing with instructions that any portion of the sentence requiring incarceration be suspended and the defendant placed on probation during the time of the suspension.

SET ASIDE AND REMANDED.

      . In oral argument, in response to an inquiry by' the Court, his counsel stated he was supporting his children.


source: Caselaw Access Project

author: KLIEBERT, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Daryl BOUTTE.
    No. 83 KA 673.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Cornelius E. Regan, William C. Credo, III, Asst. Dist. Attys., John M. Mamoul-ides, Dist. Atty., 24th Judicial District, Gretna, for plaintiff-appellee.
    John H. Craft, Joseph L. Montgomery, 24th Judicial District Indigent Defender Board, Gretna, for defendant-appellant.
    Before KLIEBERT, BOWES and CUR-RAULT, JJ.
   KLIEBERT, Judge.

Defendant, Daryl Boutte, was indicted by a grand jury for aggravated rape in violation of R.S. 14:42, aggravated crime against nature in violation of R.S. 14:89.1, and aggravated burglary in violation of R.S. 14:60. He pleaded not guilty and was tried by a jury of twelve persons and found guilty as charged on May 11, 1983. Subsequently, he was sentenced to life imprisonment on the aggravated rape charge, 15 years at hard labor on the aggravated crime against nature charge, and 30 years at hard labor on the aggravated burglary charge.

It is from this conviction and sentence that the defendant now appeals. On appeal, the defendant originally raised five assignments of error. Three of the five assignments of error were not briefed and under rule 2-12.4 of the uniform rules of the courts of appeal and State v. Dirden, 430 So.2d 798 (La.App. 5th Cir.1983), those assignments of error are considered as abandoned.

The record reflects the following series of events which led to defendant’s arrest and convictions. On January 21, 1982, at about 8:00 o’clock P.M., a nurse at Charity Hospital in New Orleans and a doctor were abducted at gunpoint by two men. They were ordered into the doctor’s car and driven to the nurse’s apartment in Metairie, Louisiana. En route, the nurse was ordered to turn over all of her money and jewelry. Upon arriving there, the nurse was led upstairs in the apartment to turn on all the lights to make sure no-one else was in the apartment. The doctor was then led upstairs and tied up. The two men then brought the nurse downstairs and told her to take all of her clothes off. The shorter man then turned on the light downstairs and forced the nurse to have oral sex with him.

The taller subject then undressed and forced the nurse to have sexual intercourse with him. The two men then ransacked the apartment and left with jewelry, a television set and a camera, after tying up the nurse. The nurse and doctor then notified the police.

On the night of the incident, the victims were shown approximately 50 photographs of suspects, but no identification was made. On April 7, 1982, the victims were shown a large posterboard with twelve photographs; one of which was a photograph of the defendant, and six other loose mug shots. Again, the victims did not identify anyone and the doctor stated that he preferred to view any suspects in person rather than making identification merely from photographs.

On April 23, 1982, a lineup was conducted at the Jefferson Parish Correctional Center. Six males, including the defendant, participated in the lineup. The nurse and doctor were kept apart during the lineup and each independently picked out the defendant as being the shorter of the men who had abducted them on January 21, 1982. No suggestion was made as to the defendant’s identification, however, the victims were told that a suspect would be in the lineup. In addition, the jumpsuit worn by the defendant during the lineup was the only one with writing on the back and was therefore distinguishable from the other jumpsuits worn by the other participants in the lineup.

Assignment of Error No. 1.

Defendant contends that his conviction should be reversed because the trial court failed to suppress the evidence and/or testimony at the trial relating to the April 23, 1982 lineup on the basis of its suggestive nature.

In deciding whether to suppress identification testimony, we must balance the reliability of such identification against the corrupting influence of the suggestive identification itself. Manson v. Braithwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). State v. Stewart, 389 So.2d 1321 (La.1980). There are five factors used to determine the reliability of an identification. These are set out in Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972) and have been followed by our courts. State v. Guillot, 353 So.2d 1005 (La.1977); State v. Stewart, supra.

Applying the five factors to this case reveals the following:

1. Opportunity of the witness to view the criminal at the time of the crime—Both victims testified that their abduction and the subsequent events which took place at the nurse’s apartment lasted approximately one hour. The nurse was forced to ride in the doctor’s car in the middle of both subjects, and although it was nighttime, both victims had a substantial opportunity to view the defendant while the light was turned on in the car and subsequently at the nurse’s apartment after the lights were turned on there.

2. The witnesses’ degree of attention— Due to the nature of the crimes involved and the manner in which they were carried out, the fact that the victims were verbally threatened by both subjects and the fact that both victims testified that they saw the defendant face-to-face, it is clear that both victims’ degree of attention focused on the defendant as well as his accomplice.

3. The accuracy of the victims’ prior description—The description of the defendant given by the victims to the police on the night of the crime corresponds with the ultimate identification of the defendant.

4. The level of certainty demonstrated at the confrontation—Although the victims did not positively identify the defendant as being one of the perpetrators when they were shown a photograph of the defendant on April 7, 1982, the victims testified that they preferred to see any suspects in person before making a positive identification. At the physical lineup conducted on April 23, 1982, both victims were positive in their identification of the defendant which were made independently of each other. In addition, the nurse identified the defendant almost immediately upon seeing him in the lineup.

5.The time between the crime and confrontation—Only three months had elapsed between the time of the crime and the physical lineup and both victims testified that they could positively identify the defendant.

The defendant claims that the lineup was suggestive since the victims were told that a suspect would be in the lineup. This, in itself does not constitute suggestiveness, for it is generally assumed that when one is called to examine a physical lineup there is a suspect in the crowd. State v. Stewart, 389 So.2d 1321 (La.1980); State v. Knight, 323 So.2d 765 (La.1975). The defense further argues that the lineup was suggestive since the defendant’s jumpsuit was different from the other jumpsuits worn by the other participants in the lineup. It has been held that:

An error is harmless if there is little likelihood that it would have changed the result. It must be clear beyond a reasonable doubt that the constitutional error did not contribute to the conviction. Chapman v. California, 386 U.S. 18, 87 Sup.Ct. 824, 17 Law. Ed. [2d] 705 (1967); State v. Gibson, 391 So.2d 421 (La.1980).

The jury obviously believed that the identification of the defendant was reliable. We also conclude that a cumulation of the five factors shows that the identification of the defendant was reliable. Further, we note the people who partook in the lineup were selected by the defendant and the jumpsuit he wore was selected by him. Balanced against the reliability is the defendant’s contentions of suggestiveness in the physical lineup. We find that the reliability far outweighs any suggestive nature of the lineup.

In the other assignments of error, the defendant contends that the trial court committed reversible error by denying the defendant’s motion for a mistrial based upon statements made by the prosecutor in closing arguments. This assignment of error is based upon Article 770 of the Louisiana Code of Criminal Procedure which provides in part as follows:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney or a court official, during the trial or in argument, refers directly or indirectly to: .... (3) the failure of the defendant to testify in his own defense;

In closing argument to the jury, the prosecutor said, “Ladies and gentlemen, there has been no evidence to rebut the crimes that happended to (the nurse and the doctor)”.

In order to mandate a mistrial, the inference must be plain that the remark was intended to bring to the jury’s attention the failure of the defendant to testify. State v. Smith, 433 So.2d 688 (La.1983); State v. Johnson, 426 So.2d 95 (La.1983); State v. Burkhalter, 428 So.2d 449 (La.1983); State v. Stephenson, 412 So.2d 553 (La.1982).

In our view, the prosecutor’s remarks were not intended to direct the jury’s attention to the failure of the defendant to testify but, rather, were directed to the lack of evidence to negate the fact that the crimes involved were in fact committed.

The defendant, in his brief, relied on State v. Harvill, 403 So.2d 706 (La.1981). In Harvill, the State’s entire case was the defendant’s taped confession and the Court held that the prosecutor’s remarks concerning the lack of evidence to rebut the confession were clearly intended to be a comment upon the failure of the defendant to testify in his own defense to recant the confession. The facts in the case at bar are substantially different from the Har-vill case and thus, the defendant’s reliance on Harvill is misplaced. This assignment is without merit.

For the foregoing reasons, the conviction and sentence of the defendant, Daryl Boutte, are affirmed.

AFFIRMED.


author: CHEHARDY, Judge.

text:
    HOUSING AUTHORITY OF ST. JOHN THE BAPTIST PARISH v. Suezane SHEPHERD.
    No. 83-CA-598.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      William D. O’Regan, III, La Place, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

This case, like the four cases which accompany it in this court, is an appeal by a lessor from the dismissal of its suit to evict a tenant for nonpayment of rent. We will discuss the companion appeals in this opinion, due to the similarity of facts and issues in all five cases.

The plaintiff-lessor in all five cases is the Housing Authority of St. John the Baptist Parish, which provides low-rent housing for eligible persons. The defendants, tenants of the Housing Authority’s housing project located in Edgard, Louisiana, are Suezane Shepherd (No. 83-CA-598 on the docket of this court), Barbara Borne (No. 83-CA-599), 0wanda Shepherd (No. 83-CA-600), Marion Feist (No. 83-CA-601) and Stephanie Bailey (No. 83-CA-622).

On March 17, 1983 the Housing Authority filed rules to evict the defendants, alleging each one’s lease had terminated from nonpayment of rent, that written notices to vacate had been delivered to the defendants more than five days prior to suit, but that the defendants had failed or refused to comply with the notice. The rules were heard on May 6, 1983, one after the other, by the same district court judge.

In each case, the court dismissed the Housing Authority’s suit, holding that the Authority had waived any right it had to evict for nonpayment of rent by acquiescing in prior consistent late payment by the tenants and failing to notify the tenants of its intent to begin strict enforcement of timely rent payment.

The evidence established that each tenant rents on a month-to-month basis under a written lease. Rental amounts are set according to each tenant’s ability to pay. Paragraph 2 of the lease provides that rent is payable in advance on the first day of each calendar month; further, a charge of $5.00 is to be made to the tenant’s account “when an amount over $25.00 is unpaid on the 6th of the month.” Paragraph 10 provides the lease may be terminated by the landlord at any time “for serious or repeated violation of any terms of this lease or for any other good cause.”

On March 8, 1983, each defendant had been given written notice to vacate her apartment for nonpayment of the March 1983 rent. After receiving the notice, each defendant tendered the rent to the executive director of the Housing Authority, Mrs. Ethel Segue, who refused to take it. None of the defendants vacated her apartment, and accordingly suit was filed on March 17.

The evidence established that defendant Owanda Shepherd is on welfare, and receives her check on the 16th of the month. Her rent is $29 a month. She testified she had been paying her rent after she got her check for several months before March 1983, “since last year * * * half of last year.” She said that when she tried to pay the rent on March 9, after receiving the eviction notice, Mrs. Segue refused to accept it. She stated she did not try to pay the April rent because Mrs. Segue had refused the March rent. (Mrs. Segue, on the other hand, testified she had had no contact with Owanda Shepherd since the eviction notice was tacked on the defendant’s door.)

Barbara Borne testified her rent is $129 per month. She said she had not paid her rent for March because Mrs. Segue refused it. She sent Mrs. Segue a check for the March rent on March 11, but that check was returned to her by one of Mrs. Segue’s employees, who told her Mrs. Segue was not going to take it. She had also tried to pay the April rent, but that check was refused by Mrs. Segue. Ms. Borne stated she is employed at a hospital, and gets paid every other week, but it does not always fall on the date the rent is due. She indicated she has often offered her rent after the sixth of the month and had it received.

Marion Feist was the only defendant represented by counsel. She testified she is employed by the St. John School Board and is paid monthly, on the 20th of the month. Her rent is $175 a month. She said she had been paying her rent after she received her monthly paycheck since June of the preceding year, because she gets paid once a month and the rent had increased. Prior to March 1983, the rent money orders she sent had never been returned to her. It was only in March, she said, that it was rejected. She has lived in the project for 14 years, and has never missed a month’s rent.

Mrs. Segue testified she received Mrs. Feist’s March rent payment, a money order dated March 18, on March 21. She photocopied it and returned it to Mrs. Feist the same day. Since then, she had received a certified letter from Mrs. Feist, which Mrs. Segue refused to accept. (Mrs. Feist testified this was an attempt to pay her April rent.) On cross-examination, Mrs. Segue admitted that the lease provided for a five-dollar late charge for overdue rent, which her agency had never tried to collect. She also admitted there was no provision in the lease that stated that tenants would automatically be evicted if payment is not received before the sixth day of the month.

She stated Mrs. Feist consistently paid her rent late. She said Mrs. Feist, and all other tenants, had been notified on July 25, 1980 that all tenants would be required to pay their rent timely. She admitted, however, that not every tenant paid timely, despite the 1980 notice.

Suezane Shepherd testified her rent for March, which she sent in on March 9, was refused. She made out a money order for the April rent, but did not send it because they had returned the March rent. She said she has lived in the project for five years, has three children, no husband, and her only support is welfare. Her rent is $23 a month. Her check comes on the 15th or 16th of the month.

Mrs. Segue admitted that she had accepted late rent payments from Ms. Shepherd during the five years the latter had lived in the project.

Stephanie Bailey testified she has lived in the project for over two years. She is on welfare, and receives her check on the 16th of the month. Her rent is $10 a month. She testified she sent her check to the Housing Authority office in La Place on March 16 by a friend, but they sent the check back to her. She stated she went in person to see “her” (meaning Mrs. Segue) and asked her if she was going to take her rent. Ms. Bailey said Mrs. Segue refused. Ms. Bailey testified that during most of the previous two years, she had tried to pay her rent before the sixth of the month; eventually, however, she had found herself unable to do so, and had been paying after the grace period. She stated she had not attempted to pay the April and May rents because Mrs. Segue had refused the March rent.

Mrs. Segue denied that Ms. Bailey had ever come to see her, or had tendered the rent for March. She did not deny that she had previously allowed Ms. Bailey to pay her rent after the sixth of the month. She stated, “I’m saying that Miss Bailey is one of those that is chronically delinquent in paying her rent.”

On appeal, the Housing Authority argues the trial court erred in failing to evict the defendants, because the evidence established all paid their March rent, if at all, after the five-day grace period had expired, and these payments were not accepted by the plaintiff. Further, the Authority argues, it is entitled to evict the defendants because the April and May 1983 rents either were not tendered or were not tendered timely. The Housing Authority contends the evidence is insufficient to establish any consistent pattern of accepting late rent payments from the defendants individually, such as to establish a waiver by the plaintiff of its rights to demand timely payment. Finally, the plaintiff contends the trial judge erred by acting as an advocate on behalf of the unrepresented defendants, in effect presenting a defense for them which they did not present themselves.

We find merit to none of these arguments. The evidence, whether taken as a whole or case-by-case establishes that the Housing Authority had a pattern of allowing its tenants to pay their rent late; that the written warnings to tenants to pay their rent on time obviously had not been enforced; and that the tenants had no notice in March 1983 that the Authority intended to begin strict enforcement of timely rent payments. Further, the defendants cannot be faulted for nonpayment of their April and May rents, when the plaintiff had refused to accept their March payments. Clearly, tender of the April and May payments would have been fruitless.

Cancellation of leases is not favored in Louisiana law; a lease will be dissolved only when it has been shown that the lessor is undoubtedly entitled to such a cancellation. Atkinson v. Richeson, 393 So.2d 801 (La.App. 2 Cir.1981). The right to dissolve a lease is subject to judicial control according to the circumstances of each case. Hebert v. Brasseaux, 399 So.2d 778 (La.App. 3 Cir.1981). State courts, on the basis of equity, are vested with discretion under some circumstances to decline to grant a lessor cancellation of a lease, although such a right appears to be otherwise available to him. Hebert v. Brasseaux, supra; Housing Auth. of City of Lake Charles v. Minor, 355 So.2d 271 (La.App. 3 Cir.1977), writ denied 355 So.2d 1323.

Where a lessor customarily accepts rental payments after the date on which they are due, such “custom” by acquiescence of the parties has the effect of altering the original contract with respect to punctuality of rent payments. Himbola Manor Apartments v. Allen, 315 So.2d 790 (La.App. 3 Cir.1975). In such cases, the landlord’s right to strict enforceability of the lease rental provisions is considered to have been waived; in order to hold the lessee to the explicit terms of the lease thereafter, the lessor must give advance notice of his intention to enforce the lease strictly in the future. Himbola Manor Apartments v. Allen, supra.

“The basis for such a rule seems to be the prevention of a lessor-owner ‘misleading or lulling a tenant into a false sense of security' by accepting late rent payments for an extended period, without demand for punctuality, and then at a future date of his own choosing cancel the lease once payment becomes overdue. [Citations omitted.]” Himbola Manor Apartments v. Allen, supra, at 793.

Nor do we find merit to the Housing Authority’s contention that the trial judge acted as an advocate for the defendants and conducted their defense. As stated above, four of the defendants were without legal counsel during the proceedings. Generally, a trial judge, in order to maintain the impartiality which proper trial technique demands, should be careful not only as to the number and type of questions propounded by him to the witnesses but also as to the manner in which they are propounded. La Pierre v. Gibson, 420 So.2d 990 (La.App. 4 Cir.1982). The trial judge is within the scope of his duty when he asks questions from the bench in order to adjudicate the matter fairly. Patin v. DeStevens, 415 So.2d 1011 (La.App. 4 Cir.1982). Our review of the record here does not indicate any abuse of discretion by the district judge; his questions were an attempt to clarify the evidence and to aid in conduct of the trial.

For the foregoing reasons, the judgment of the district court is affirmed. All costs are to be paid by appellant.

AFFIRMED.


text:
    HOUSING AUTHORITY OF ST. JOHN THE BAPTIST PARISH v. Barbara BORNE.
    No. 83-CA-599.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    William D. O’Regan, III, La Place, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

For the reasons assigned in Housing Authority of St. John the Baptist Parish v. Shepherd, 447 So.2d 1232, the judgment of the district court is affirmed. All costs are to be paid by appellant.

AFFIRMED.


text:
    HOUSING AUTHORITY OF ST. JOHN THE BAPTIST PARISH v. Owanda SHEPHERD.
    No. 83-CA-600.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      William D. O’Regan, III, La Place, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

For the reasons assigned in Housing Authority of St. John the Baptist Parish v. Shepherd, 447 So.2d 1232, the judgment of the district court is affirmed. All costs are to be paid by appellant.

AFFIRMED.


text:
    HOUSING AUTHORITY OF ST. JOHN THE BAPTIST PARISH v. Marion FEIST.
    No. 83-CA-601.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    William D. O’Regan, III, La Place, for plaintiff-appellant.
    BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

For the reasons assigned in Housing Authority of St. John the Baptist Parish v. Shepherd, 447 So.2d 1232, the judgment of the district court is affirmed. All costs are to be paid by appellant.

AFFIRMED.


text:
    HOUSING AUTHORITY OF ST. JOHN THE BAPTIST PARISH v. Stephanie BAILEY.
    No. 83-CA-622.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    William D. O’Regan, III, La Place, for plaintiff-appellant.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   CHEHARDY, Judge.

For the reasons assigned in Housing Authority of St. John the Baptist Parish v. Shepherd, 447 So.2d 1232, the judgment of the district court is affirmed. All costs are to be paid by appellant.

AFFIRMED.


text:
    Mary Haas BOUDREAUX v. Michael J. BOUDREAUX.
    No. 83-CA-644.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.

      Dale C. Wilks, New Orleans, for appellant.
    Amato & Creely, Michael F. Somoza, Gretna, for appellee.
    Before BOUTALL, CHEHARDY and DUFRESNE, JJ.
   CHEHARDY, Judge.

This is a child custody case. The trial judge awarded the custody of two-and-one-half-year-old Corey Michael Boudreaux to his father. The child’s mother, Mary Haas Boudreaux, has appealed.

This appeal is a culmination of legal proceedings which began on May 7, 1982 when Mr. Boudreaux filed a petition for separation based on the ground of abandonment and prayed for custody of his son. When no answer was filed, a default judgment was rendered in favor of the husband granting the separation and awarding him custody. The wife then filed a motion for a new trial, which, after hearing thereon, was denied.

In 1983 Mrs. Boudreaux filed a suit for divorce and a change of custody, and later filed rules for contempt and visitation. The parties then entered into a consent judgment whereby the father retained custody while the mother was awarded visitation one day per week, and every other weekend.

Following trial on the merits of the divorce action, concurrent with custody and support rules, judgment of divorce was rendered in favor of the wife. Custody was continued with the husband subject to the visitation agreement previously made by the parties in the consent judgment.

In this court, appellant contends the trial court erred in awarding custody of the minor to his father and that the best interest of the child would be served if custody was granted to the mother.

In support of her position appellant relies principally on the testimony of Dr. Klebert Jones, a child psychiatrist. Jones evaluated the child at Mrs. Boudreaux’s request on January 10 and May 17, 1983. At the initial meeting a developmental history of the child was obtained, along with information from the mother about the separation and divorce and its effect upon the child. The session lasted one and one-half hours. During this period the doctor saw the child alone for about 25 to 30 minutes.

When the child was evaluated on May 17 during a one-hour, 15-minute session, the doctor noted a change in his behavior which he attributed to the fact that the mother had not been permitted to see the child in February and had to seek visitation rights through the court.

The mother also told the doctor the child’s sleeping and eating habits had changed, that he was more aggressive, and that when driven past his father’s house the child starts to cry, because he did not want to go there.

Based upon information relative to custodial arrangements, visitation and unsettling events related to him solely by the mother, with no other independent or corroborating information supplied by anyone else, and without any input by the custodial parent, who was unaware his child was being evaluated, the doctor concluded the change in visitation had resulted in Corey desperately missing his mother, and that the best interest of the child would be served if the mother had primary custody.

The doctor found Corey was more anxious, less verbal, and displayed a greater visable need to be in close physical proximity to his mother; he was less interactive with him (the doctor), and did not maintain direct eye contact as he had on the initial visit.

Dr. Jones felt Corey was being adequately cared for physically by the father and that the father’s input must be good in many ways, but the panic reaction the child exhibits when returned to the father’s residence by the mother resembles a struggle and casts a potential cloud over the child in terms of his relationship to women in later life.

Mrs. Boudreaux, a nurse, testified that when she left her husband in 1982 she took the child with her. She works varying shifts and her husband, a railroad clerk, also works shifts. Their arrangement was to share the responsibility for Corey depending on what shift either parent worked.

When the mother had the day shift (7 a.m. to 3 p.m.) she delivered Corey to the father at 5:30 a.m. He would take the child to nursery school mid-morning, and she would pick him up at nursery school about 3:30 p.m. Whenever there was a problem her mother would help.

In February her husband refused to continue the routine and she had to go to court to set visitation rights. However prior thereto she sought Dr. Jones’ help, because of her worry about how Corey’s behavior had been affected by the separation.

Since February 1983 she finds the child’s behavior has changed dramatically. He is urinating on himself, has regressed to the bottle and refuses to go out of her sight, clinging to her when she tries to return him to his father.

After the separation she and the child lived with her mother and father for a short time, and then lived with her brother and sister-in-law until she secured an apartment. Mrs. Boudreaux earns $2,000 per month and can provide for the child.

Testifying on behalf of appellee were Boudreaux himself, Mrs. Debbie Hebert, his baby-sitter, and Mrs. Catherine Haas, the wife of Mrs. Boudreaux’s brother.

Boudreaux testified that he rents a very clean two-bedroom house where Corey has his own room. There is a nice back yard to play in and a driveway along the side of the house where the child can ride a bike. Photographs introduced in evidence depict the attractive home.

He claims to have a very good relationship to the child and considers the boy his main concern and responsibility. His mother is his principal baby-sitter, assisted by Mrs. Hebert, the wife of his best friend.

Boudreaux would be willing to participate in any form of family or group therapy with the child if it was determined this was in the child’s best interest, but he was never informed about the psychiatric evaluation and has no reason to believe the child needs psychiatric treatment.

It is clear Mr. and Mrs. Boudreaux have an acrimonious relationship with each other. Prior to the visitation agreement, although he had custody, she refused to return the child and informed him the only way to get his child back was to come with a police officer because she did not want him on the property. Under those circumstances he returned with an officer.

The officer, who was called as a witness for Mrs. Boudreaux, confirmed the husband’s request. He stated the child was asleep when he arrived and cried when he had to leave the mother’s apartment. (The father denies the child cried.)

Boudreaux initially permitted his wife to see Corey anytime she wanted to, but cut down on the visitation because of harassment from her and her mother.

He described incidents where Mrs. Bou-dreaux brought the child back accompanied by a live rabbit or a dog. Corey cried because he could not keep the pets. The father feels these things are done deliberately to upset the child and manipulate him. He described other scenes where his former wife has refused to leave his home when her visit is terminated.

Mrs. Hebert testified to telephone harassment by appellant and told of a personal visit where the child’s mother knocked on her door and cursed long enough and loud enough to disturb the neighbors outside and the children inside.

Mrs. Hebert also described an incident where appellant, while driving by, saw her with her husband and Corey at a shop, and stopped her car in the middle of the street, calling to the child to come to her. The child started off and had to be restrained because of the danger of running into the street. The mother then pulled partly into a parking area and created a scene.

Mrs. Haas testified that following the separation Mrs. Boudreaux and Corey lived with the Haases for about three weeks before moving to a place of their own. During that period appellant was visited by two men, one of whom was found sleeping on the sofa with her in the early morning hours. (Mrs. Boudreaux denies this.)

After hearing all of the testimony the judge summarized the matter and commented on the evidence underlying his reasons for continuing custody in the father. The court considered the testimony of Dr. Jones was one-sided because the father was not interviewed. In the absence of any input from the father the judge failed to see how the doctor could conclude it was in the best interest of the child that he be with the mother, based on the type of evaluation conducted. "He was also concerned because'the custodial parent had not even been consulted, thus tainting the overall attitude and evaluation.

The trial judge has much discretion in custody cases. He has heard and seen the witnesses and noted their demeanor on the stand, and our Supreme Court in Bor-delon v. Bordelon, 390 So.2d 1325, 1329 (La. 1980), has set the standard of review to be used in such cases:

“This Court has clearly stated that in child custody cases, the procedure for appellate review is to give great weight to the determination of the trial judge, and to overturn a determination only when there is a clear abuse of discretion.

Although the psychiatrist concluded the best interest of the child would be served by granting custody to the mother, the court was free to accept or reject his conclusions.

After making his own evaluation the trial judge may accept or reject an opinion expressed by any medical expert depending on how impressed he is with the qualifications, credibility and testimony of that expert; in short, he is obligated to evaluate the testimony of a medical witness according to the same rules applicable to any other witness. Tebbe v. Avegno, 435 So.2d 513 (La.App. 4 Cir.1983); Davenport v. McCullough Services Baroid Div., 388 So.2d 453 (La.App. 2 Cir.1980); Guidry v. Davis, 382 So.2d 250 (La.App. 3 Cir.1980); Lewis v. Orleans Parish Sch. Bd., 371 So.2d 328 (La.App. 4 Cir.1979).

Unfortunately Corey is a product of a broken home. The judge found no evidence was presented to him that the child would improve or be any better off than he is now with the father. Thus he concluded it is in the child’s best interest to leave the custody as it is and to permit Mrs. Bou-dreaux to exercise liberal visitation privileges as set forth in the consent judgment.

The decision is not an abuse of the great discretion afforded trial judges in custody cases and neither is it clearly wrong.

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

AFFIRMED.


text:
    ASCENSION SAVINGS AND LOAN ASSOCIATION v. Carol Gueret, Wife of/and Herbert J. CHAMPAGNE.
    No. 83-CA-674.
    Court of Appeal of Louisiana, Fifth Circuit.
    March 13, 1984.
    Ronald J. Landry, La Place, for plaintiff-appellee.
    Robert R. Faucheux, Jr., Reserve, for defendants-appellants.
    Before CHEHARDY, CURRAULT and GAUDIN, JJ.
   CHEHARDY, Judge.

This is a devolutive appeal by defendants-mortgagors from a suit to foreclose a mortgage by executory process. For the reasons assigned below, we dismiss the appeal.

Plaintiff-mortgagee, Ascension Savings and Loan Association, filed suit for execu-tory process, alleging defendants were in arrears more than seven installments on the promissory note secured by the mortgage of their home. Following issuance of the order for seizure and sale, Mr. and Mrs. Herbert J. Champagne, the mortgagors, obtained a temporary restraining order preventing sale of the property and sought a preliminary injunction.

At the hearing on the preliminary injunction, the defendants attempted to establish that plaintiff’s records were incorrect, and that plaintiff had made an unauthorized transfer of $1,800 from the mortgage account in question to another mortgage account owed by defendants.

The trial judge concluded the evidence established that the defendants were often in arrears with their payments; that several times the plaintiff had allowed the defendants to restore the loan to a current status; and that plaintiff finally instituted this action when the arrearage became a substantial amount. Accordingly, he refused to grant injunctive relief. In addition, he recalled and set aside the temporary restraining order previously issued, because defendants’ surety bond was defective. (We note the latter ruling was unnecessary; the temporary restraining order had already expired of its own terms, because more than ten days had passed since its issuance. See LSA-C.C.P. art. 3604.)

Defendants moved for a new trial, which was denied. On August 16, 1982 their petition for devolutive appeal was granted.

On appeal, the record establishes that a sheriffs sale of the seized property took place on August 18, 1982, at which time the property was adjudicated to a third-party bidder for $121,500. The sheriffs return establishes that the total amount received was disbursed to pay costs of the sale and to satisfy creditors.

LSA-C.C.P. art. 2642 provides,

“Defenses and procedural objections to an executory proceeding may be asserted either through an injunction proceeding to arrest the seizure and sale as provided in Articles 2751 through 2754, or a sus-pensive appeal from the order directing the issuance of the writ of seizure and sale, or both.”

As stated above, the defendants took a devolutive rather than a suspensive appeal from the denial of the injunction, and the property since has been sold at public auction.

Under these facts, the jurisprudence is firmly established that the appeal is subject to dismissal for mootness. Tidwell v. Gaston, 371 So.2d 299 (La.App. 2 Cir.1979); Ford Motor Credit Company v. Herron, 234 So.2d 517 (La.App. 3 Cir.1970); Mr. Pizza, Inc. v. Furlow, 230 So.2d 649 (La. App. 4 Cir.1970); Choate v. Cofield, 164 So.2d 601 (La.App. 3 Cir.1964).

We do not address appellee’s demand for damages for frivolous appeal, because appellee neither appealed nor answered defendants’ appeal.

For these reasons, the appeal is dismissed. Appellants are to pay all costs.

APPEAL DISMISSED.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Roger SILVA.
    Nos. KA 1200, KA 1201.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Rehearing Denied April 25, 1984.
    Writ Denied June 8, 1984.

      John E. Unsworth, Jr., New Orleans, for defendant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for the State.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Defendant appeals his convictions for possession of ethinamate, La.R.S. 40:969, and for possession of a firearm by a convicted felon, R.S. 14:95.1. Defendant contends that the search of his residence that produced the items was illegal and that the proof was insufficient and that prejudicial but immaterial evidence was admitted at his trial on the firearm charge.

The Search

Although information from a confidential informant prompted their surveillance, the validity of the warrant rests firmly on the police officers’ having personally witnessed what appeared to their experienced eyes to be two separate drug sales at the door of defendant’s residence. The warrant was not issued on the basis of uncorroborated confidential information, and we therefore find no merit in defendant’s complaints of the trial court’s refusal to suppress and to order the state to give defendant the name of the informant (see State v. Davis, 411 So.2d 434 (La.1982)) and the police officer’s notes concerning past reliable information obtained from the informant (thus not concerning the officer’s eyewitness testimony) (see State v. Franks, 363 So.2d 518 (La.1978)).

The Trial

Defendant’s basic argument is that he was not proved “to possess a firearm,” R.S. 14:95.1, arguing that the circumstantial evidence did not exclude every reasonable hypothesis of his innocence.

Possession need only be constructive, State v. Day, 410 So.2d 741 (La.1982), and constructive possession exists if the thing is subject to the dominion and control of the accused, State v. Edwards, 354 So.2d 1322 (La.1978).

Of the three firearms found in defendant’s residence, the jury convicted him of possession of only the first one. As to the other two — a .357 magnum and a .45 Colt— there was evidence that the defendant’s wife owned one and was pledgee of the other (and the jury’s apparent conclusion that defendant did not “possess” those is not subject to review).

As to the first — also a .357 magnum — the jury obviously disbelieved defendant’s testimony (and that of his wife and a third person) that the third person rented defendant’s child’s room (decorated with “Star Wars” posters), and that the first firearm belonged to that third person (who had a notarized bill of sale, indicating that he was at least at one time the owner of that firearm). The trial-time testimony of that person’s renting the child’s room was inconsistent with defendant’s wife’s statement at the time of the search. She had then said that the occupants of the house were herself, her husband and their child; if in truth the third person had lived at the house “off and on” for two years (the third person said about a year), she would likely have remembered that at the time a pistol was found in the child’s room. The third person’s description of the materials in which the pistol was wrapped was also not consistent with the officer’s testimony.

Accepting the jury’s reasonable credibility evaluations, we observe that even if this is a circumstantial evidence case, we cannot conceive a reasonable hypothesis of defendant’s innocence: the credible evidence establishes that three firearms were found in defendant’s house, to all of which he had unimpeded access and in that sense dominion and control. We see no escape from the conclusion that he constructively possessed the firearm for possession of which he was convicted.

Defendant also complains of the admission of the bullets with which the three guns were loaded, arguing that they were prejudicial and not material to the charge. Defendant points out that the offense is possession by a felon of any firearm, loaded or not. We point out that the same is true of the firepower of the weapons seized: a .45 or a .357 magnum is considerably more menacing than a .22, and it may therefore be somewhat prejudicial for the jury to know that the firearm possessed is a .45 or a .357. The offense is possession by a felon of any firearm, whatever its caliber. But it was surely not error to introduce the firearms, and it is also not error to admit evidence of their condition, location etc. Like their caliber, their having been loaded is an added circumstance of defendant’s possession, although not essential to the charge. Testimony that the firearms were loaded when seized was admitted without objection, and the showing of the bullets with which they were loaded to the jury was no more prejudicial than the testimony itself. It was not reversible error.

Affirmed.


author: GAUDIN, Judge.

text:
    WESTEND AMUSEMENT CORPORATION v. WESTEND DEVELOPMENT COMPANY (A Partnership in Commendam).
    No. 84-C-63.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 16, 1984.

      Richard J. Boutall, Metairie, for relator.
    Nathan Greenberg, Gretna, for respondent.
    Before KLIEBERT, GAUDIN and GRIS-BAUM, JJ.
   GAUDIN, Judge.

Initially, Westend Development Company filed a foreclosure suit against Westend Amusement Corporation, No. 282-746, 24th Judicial District Court. Executory process issued on June 16, 1983, and a building “... located on pilings over Lake Pontchartrain ... situated on a permit issued by the Corps of Engineers ...” was seized.

On December 13, 1983, Westend Amusement Corporation filed suit No. 289-626, 24th Judicial District Court, stating that it had obtained a lease from the State of Louisiana covering the area of the lake beneath the subject property. Further, the petition alleged:

“That public water bottoms upon which the property is located are not subject to seizure and sale under executory process and ... said building cannot be sold separate from the lease.
“That, alternatively, because of said premises the State of Louisiana said leasehold rights are paramount to any rights of ownership of the building ... and ... cannot be subject to private mortgage or executory process.”

The district court refused to issue an injunction, however, and the property was sold on December 14,1983 at public auction for $315,000.00 to Westend Lakewalk, Inc., which deposited $5,000.00 with the Sheriff’s office. With the exception of one individual, it appears that the principals of Westend Amusement Corporation and Wes-tend Lakewalk are the same.

When Westend Lakewalk failed to pay the balance due on the executory process sale, the property was advertised again and another sale was scheduled for February 1, 1984.

On January 26, 1984, a petition of intervention was filed by West End Arcade, Ltd., contending that it and not Westend Amusement Corporation owned the property in question because of an assignment on April 23, 1983 before notaries in Jefferson Parish and in Santa Clara County, California. The intervention asked:

(1) That the seizure be set aside and that the property be returned to the possession of West End Arcade,

(2) That intervenor be awarded damages, and

(3) That the scheduled Sheriffs sale be enjoined.

Also on January 26, 1984, Westend Amusement Corporation filed a supplemental and amended petition asserting:

I
“That with its acquisition of the building forming the basis of this lawsuit from defendant, Westend Development Company, petitioner acquired the permit license of John Kirsch through Westend Development Company which formed part of the purchase agreement between petitioner and defendant.
II
“That subsequent to the purchase of this building petitioner discovered these rights were defective in the following particulars:
1. That no permission from the State of Louisiana, owner of the water bottoms, upon which the building sat, was obtained by Westend Development Company, John Kirsch or any of their predecessors.
2. That by letter of 3, October, 1972, a copy of which is attached hereto and made a part hereof, marked Exhibit “A”, purporting to grant John Kirsch the permit to maintain the construction of the building, that the Department of Army New Orleans District Corps of Engineers did so on the condition that Mr. Kirsch secure the necessary legal rights from the heirs of Mrs. Emma Moses Morlet who prior to Mr. Kirsch’s appearance held the proper permits, and that this transfer of the permits from the heirs of or the Succession of Mrs. Emma Moses Morlet to John Kirsch was never made.
Ill
“That because of this, petitioner sought to perfect their title by fulfilling the requisites of law which had not been done by previous permitees and obtain a lease from the State of Louisiana for the water bottoms upon which the building sat.
IV
“That because of these defects in the legal rights necessary to construct and maintain the building, petitioner desires that in the alternative petitioner is entitled to rescission and annulment of the sale of the building and permits attached thereto and return of its downpayment of eighty thousand and no/100 ($80,-000.00) dollars, together with all expenses of sale, all sums paid on said contract of sale to the defendant to date as well as incidental expenses relating to this sale consisting of the amount of thirty thousand and no/100 ($30,000.00) dollars in attorney’s fees and any other incidental expenses which may appear at the trial, said sale dated 22, April, 1982, being from Westend Development Company to Westend Amusement Corporation.
V
“That in the alternative, petitioners demand the demolition and removal of the building at the expense of defendant under Civil Code Article 497 because of the bad faith of John Kirsch and/or Westend Amusement Corporation in building and/or maintaining said building without transfer of the necessary permits from the heirs of or the Succession of Mrs. Emma Moses Morlet and without the permission of the State of Louisiana, owner of the water bottoms, which constitutes bad faith on the part of the defendant.
VI
“That sought to be made additional defendant herein is John Kirsch, purported to be original transferor of the permits forming a part of the act of sale of the building herein dated 22, April, 1982, and petitioners allege that because of the aforegoing mentioned defects that they are entitled to a rescission and annulment of the assignment of piling rights and permits involving him contained in the act of sale aforementioned.”

On January 30, 1984, the trial court denied the injunction requests of Westend Amusement Corporation and West End Arcade and ordered the property sold on February 1, 1984. Westend Amusement Corporation and Westend Lake walk and their principals were enjoined from bidding.

Westend Amusement Corporation and West End Arcade petitioned for writs of certiorari, prohibition and mandamus to this Court, and a stay order was issued, suspending the February 1, 1984 sale.

Westend Development Corporation is opposed to the granting of writs, contending, generally, that there is separate ownership of the wetland and the building, that the mortgage is legitimate and valid and that the forced sale of the mortgaged building should be rescheduled.

LSA-C.C.Pr. art. 2751 lists the grounds for arresting a seizure and sale, to wit:

“The defendant in the executory proceeding may arrest the seizure and sale of the property by injunction when the debt secured by the mortgage or privilege is extinguished, or is legally unenforceable, or if the procedure required by law has not been followed.” (Underlining supplied.)

We have carefully considered both records of the 24th Judicial District Court (Nos. 282-746 and 289-626), and there are issues presented concerning actual ownership of the building, validity of the mortgage, etc., issues which appear to be directly related to the enforceability of the obligation via executory process. We believe these issues should be resolved before the property is sold.

We therefore remand this matter to the 24th Judicial District Court, directing the trial judge:

(1) To issue a preliminary injunction, suspending the sale pending further orders of the district court, conditioned upon the posting of a security bond in accord with LSA-C.C.Pr. art. 3610, the amount of which and the deadline for posting said security to be determined by the district judge; and

(2) To hear the merits of the case as expeditiously as possible.

WRITS GRANTED.


author: LOTTINGER, Judge.

text:
    Linda Newcomer LITTLE v. Robert Roy LITTLE.
    No. 83 CA 1277.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Walter J. Horrell, Covington, for plaintiff-appellant.
    Clayton S. Knight, Franklinton, for defendant-appellee.
    Before LOTTINGER, EDWARDS and COLE, JJ.
   LOTTINGER, Judge.

This is a summary proceeding by the father, Robert Roy Little, seeking joint custody of his two minor children, Nicholas born March 31, 1978, and Teresa born September 15, 1980. From a judgment awarding joint custody and ordering that the parties submit a plan or plans for joint custody of the children, the mother, Linda Newcomer Little Grantham has appealed.

La.C.C. Art. 146, as amended by Act 307 in 1982, effective January 1, 1983, legislatively provides for a preference for joint custody in child custody cases. La.C.C. Art. 157 makes the provisions of Article 146 applicable to permanent custody cases. Thus, joint custody is presumed unless the parent requesting sole custody proves that it would not be in the best interest of the child.

In the instant case we have searched the record as well as making inquiries to the trial court to determine whether a plan of implementation has been approved by the trial court. None has been approved.

We are of the opinion that in amending Article 146 the legislature intended that when joint custody is awarded, a plan of implementation of joint custody be included in the decree. Otherwise, inasmuch as a joint custody decree is an appealable judgment, one parent would be forced within the applicable time period to appeal said judgment. Additionally, when the plan of implementation is ultimately approved or imposed by the trial court, a second or subsequent appeal could result. Thus, the question of joint custody and the implementation thereof would arrive in the appellate court for review by separate appeals. This is not desirable and certainly not what the legislature intended.

Therefore, under the authority of La. Code Civ.P. Art. 2164, we remand this case to the trial court for the purpose of the approval or imposition of a plan of implementation and the inclusion of same in the custody decree.

Costs of this appeal are assessed to the appellant. REMANDED.


author: GULOTTA, Judge.

text:
    Liselotte Schroth, wife of Natchez MORICE v. Natchez MORICE.
    No. CA-1322.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Rehearing Denied April 25, 1984.

      William Wessel, New Orleans, for appellant.
    Robert G. Creely, Gretna, for appellee.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   GULOTTA, Judge.

A divorced mother appeals from two separate judgments respectively ordering her: 1) to pay her two minor sons’ annual school tuition in excess of the sum of $3,300.00 paid by the father; and 2) to reimburse the father $6,428.81 in tuition paid by him. We affirm the earlier judgment ordering the wife to bear a share of the tuition expenses, but we reverse the later judgment ordering reimbursement to the husband.

On October 15, 1981, the- father, Dr. Natchez Morice, Jr., was ordered to pay, inter alia:

“... all expenses of the schooling for the children including the cost of tuition, books, uniforms, and required fees and any transportation expenses.... ”

Pursuant to this judgment, Dr. Morice paid tuition for the boys at New Orleans Academy in 1981-82 at a cost of $3,300.00 per year.

On August 3, 1982, Dr. Morice filed a “Rule to Change Child Support”, alleging that his wife was proposing to enroll the boys at much more expensive private schools, instead of maintaining the younger son at New Orleans Academy and sending the older one to Jesuit High School where he had recently been accepted for admission. Dr. Morice sought a ruling from the court that the boys attend NOA and Jesuit or, alternatively, that the child support be “changed” to make him responsible only for the costs of tuition at the named schools instead of the more expensive ones proposed by the wife.

While Dr. Morice’s rule was pending, the parties reached a community property settlement on October 28, 1982. As part of this compromise, they agreed to regard all past motions and judgments against each other as satisfied. Dr. Morice’s rule, therefore, was abandoned without being heard. Meanwhile, the boys had entered Isidore Newman School and Metairie Park Country Day School against Dr. Morice’s wishes.

On November 15, 1982, however, Mrs. Morice filed a “Motion for Contempt and For Accumulation”, alleging that Dr. Mor-ice owed $9,422.00 for the cost of educating the boys at Newman and Country Day for the 1982-83 term. Before the rule was heard, Dr. Morice paid Mrs. Morice $3,300.00, a sum equivalent to the cost of tuition at New Orleans Academy and Jesuit.

After trial on the merits, the trial court on January 11, 1983 allowed Mrs. Morice to retain the $3,300.00 already paid by Dr. Morice, but further decreed:

“Any tuition or school expenses incurred on behalf of the Morice children above and beyond that amount shall be discharged by Mrs. Natchez Morice.”

Subsequently, Dr. Morice paid the remaining tuition due at Newman and Country Day. He thereafter filed a rule against Mrs. Morice to make past due school tuition executory in the amount paid by him to the schools. On June 22, 1983, the trial judge ordered Mrs. Morice to reimburse Dr. Mor-ice $6,428.81 for the additional tuition paid by him.

Appealing from the judgments of January 11 and June 22, 1983, Mrs. Morice raises essentially three arguments: 1) that Dr. Morice is not entitled to any relief since he abandoned his rule to change child support by the October 28, 1982 community property compromise; 2) that the trial court erred in interpreting the October 15, 1982 judgment to limit Dr. Morice’s tuition obligation to $3,300.00 per year; and 3) that the $6,428.81 judgment in favor of Dr. Morice is erroneous because any amount paid to the schools in excess of his child support obligation is deemed a gift to the children for which he cannot obtain reimbursement or credit.

We reject Mrs. Morice’s contention that Dr. Morice is barred from relief because he did not re-urge his rule to reduce support or offer proof of a change in his financial ability to bear the cost of the increased tuition.

The court, by its January 11, 1983 judgment, did not change the earlier October 15, 1981 judgment, but rather clarified and made more certain an open-ended judgment. The court determined that the October 15 judgment obligating Dr. Morice to pay “all expenses for the schooling of the children” included the cost of tuition for the boys at schools equivalent to those they were attending at the time of the judgment, but not at private schools costing nearly three times as much. The question presented in the hearing resulting in the January 11, 1983 judgment was not one of a reduction or change of circumstances, but rather a clarification and judicial determination of the indefinite wording of the October 15, 1981 judgment.

Furthermore, as pointed out in the written reasons for the January 11, 1983 judgment, the effect of Mrs. Morice’s motion for contempt is to ask the court “... indirectly to find that Dr. Morice’s child support obligation extends to the additional tuition expenses of Country Day and Newman Schools.” Following Mrs. Morice’s argument to its logical conclusion would require that she, not Dr. Morice, have filed a motion for an increase for entitlement to the higher tuition at the new schools.

We likewise find no error in the trial judge’s interpretation of the October 15, 1981 judgment. In well written reasons the trial judge stated:

“To determine whether Dr. Natchez Morice is in contempt of the child support judgment dated October 15, 1981 the Court must interpret that order to discern its true intent....
“For the aforementioned reasons the Court is bound to read the October 15, 1981 judgment restrictively, and in doing so dismisses Mrs. Morice’s rule for contempt. That judgment would have allowed Mrs. Morice to continue to send the Morice children to New Orleans Academy or to any other school with comparable tuition and transportation expenses. If a change of schools had been contemplated by Mrs. Morice, a rule to show cause would have been promptly set on the Court’s docket to determine to what extent Dr. Morice’s obligation to pay the tuition and transportation expenses of his children did lie. The October 15, 1981 judgment was rendered to do justice to both parties. To allow one of the parties to give an arbitrary interpretation of that judgment to the detriment of the other would be contrary to its recognized intent....

As a supplement to the above-quoted reasons, we need only point out that a judgment ordering a father to pay “all expenses for the schooling for the children” implies all reasonable expenses, and does not give the mother license to send the children to new schools at nearly triple the cost of their accustomed tuition expense. Indeed, as pointed out by Dr. Morice at trial, giving effect to Mrs. Morice’s interpretation of the October 15 judgment at Dr. Morice’s expense could lead to the result of permitting her to send the boys “wherever she wanted to, perhaps Switzerland and commute on a Concord.” We point out also, as indicated by the trial judge, there has been no “demonstrated need for a change of school.” Accordingly, we find no error in the trial court’s January 11, 1983 judgment.

We reach a different result, however, regarding the June 22, 1983 judgment condemning Liselotte Morice to reimburse Dr. Morice the $6,428.81 he paid on behalf of his children directly to Newman and Country Day Schools.

Although Dr. Morice had satisfied his tuition obligation under the January 11, 1983 judgment by paying $3,300.00 to Mrs. Morice, the $6,428.81 in excess that he later paid directly to the schools can only be considered as a “gift” to his children that he cannot recover from his former wife. Our jurisprudence is well settled that a non-custodial parent who makes a payment of this nature to a third party on behalf of his minor children cannot obtain reimbursement or credit. See Graval v. Graval, 355 So.2d 1057 (La.App. 4th Cir.1978); Thompson v. Courville, 372 So.2d 579 (La.App. 3rd Cir.1979); Davis v. Davis, 405 So.2d 594 (La.App. 3rd Cir.1981), writ denied 409 So.2d 659 (La.1982). Having so concluded, we reverse the June 22, 1983 judgment.

Accordingly, the judgment of January 11, 1983 is affirmed. The judgment of June 22, 1983 is reversed, rescinded and set aside. Each party to pay his or her costs.

EARLIER JUDGMENT AFFIRMED; LATER JUDGMENT REVERSED, RESCINDED AND SET ASIDE.


author: AUGUSTINE, Judge.

text:
    George R. WERNER v. BOARD OF TRUSTEES OF the NEW ORLEANS POLICE PENSION FUND OF the CITY OF NEW ORLEANS, Joseph F. Maes, Sr., Individually and In His Capacity as President of the Board of Trustees of the Police Pension Fund of the City of New Orleans.
    No. CA-0269.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      C, James Gelpi, Gelpi & Willeford, P.C., New Orleans, for plaintiff-appellant.
    Joel P. Loeffelholz, Richard A. Dowling, New Orleans, for defendants-appellees.
    Before AUGUSTINE, WARD and WILLIAMS, JJ.
   AUGUSTINE, Judge.

George R. Werner, a sergeant with the New Orleans Police Department instituted suit in the Civil District Court for the Parish of Orleans against the Board of Trustees of the Police Pension Fund of the City of New Orleans (“the Board”) seeking judicial review of its decision denying him a disability pension.

The Board rendered its decision on October 26, 1977. That decision was based on evidence presented at a hearing which was held on July 7 and July 12, 1977. In its reasons for decision the Board made several findings: (1) that George Werner was suffering from an injury; (2) that the applicant was not totally and permanently disabled from all forms of police work; (3) that Werner was capable of handling sedentary work, available within the police department at that time; and (4) that the applicant did not meet the burden of proving that he was entitled to a disability pension under the law.

Under the Administrative Procedure Act, Werner sought judicial review of the Board’s decision in Civil District Court for the City of New Orleans. The district court affirmed the Board’s decision, finding that the decision was “not manifestly erroneous in view of the reliable, probative and substantial evidence in the whole record, nor was the Board’s decision made upon unlawful procedure or affected by other errors of law.” Werner appeals from that judgment. We affirm.

Werner’s pension claim is based on a series of traffic accidents which occurred over the course of two years. The first accident took place on March 11, 1974, while he was returning home from Traffic Court. The second accident happened on December 3, 1974 when Sergeant Werner was on his way to work. The third accident took place on December 30, 1975, while the appellant was off duty. The record reveals that Werner received prolonged treatment for injuries sustained in those accidents. There was extensive testimony as to the effect and severity of those injuries particularly with regard to an injury to Werner’s inner ear, due to which he apparently suffers from spells of vertigo. There was also testimony which indicated that Werner was totally disabled or nearly so.

In his brief Werner makes five specifications of error. First, he claims that the board erred when it failed to find that the nature of his injuries rendered him totally disabled. Second, Werner asserts that the Board erred when it held that his injury did not occur in the discharge of duty and that the law mandates that those injuries have been sustained in that manner. The third and fourth specifications involve the availability to Werner of a sedentary job within the police department. Werner’s final specification of error is that he was deprived of his constitutional right to due process.

With regard to the Board’s finding that Werner was not totally disabled, in light of the deference we must give to the Board in matters of credibility, and despite the substantial evidence to the contrary, we cannot say that the Board’s decision was manifestly erroneous in view of the evidence on the whole record. Buras v. Board of Trustees of Police Pension Fund Of the City of New Orleans, 367 So.2d 849 (La.1979).

To support the Board’s findings there was testimony that Werner functioned on limited duty after the first and second accidents and for a period of four months after the last accident; that no new medication was prescribed for him after the first accident; that his primary treating physician recommended that he return to work on a limited basis in March of 1976; that a friend of Werner’s, Ms. Grace Loyca-no, who sees him daily and has known him since the first accident occurred has seen him lose his balance due to his inner ear injury only twice during since that time; and finally, that Werner requested reassignment on July 16, 1976, “due to my present medical condition,” but applied for a pension only three days later, when there was no objective evidence that there was any change in circumstances between the 16th and the 19th of July. Thus we cannot conclude in view of the evidence on the whole record that the Board’s decision that Werner was not totally disabled was manifestly erroneous.

In Werner’s second specification of error he claims that the Board erred when it held that his injuries did not occur in the actual discharge of duty. In that specification the appellant also claims that the Board was wrong in asserting that it was necessary for Werner’s injuries to have been sustained in the discharge of duty before he would have become eligible for a disability pension under either of the applicable statutes.

While we agree that Sergeant Werner’s first accident may have occurred while in the active discharge of duty (the evidence on this point was scant at best), we do not believe that such a finding would necessarily entitle him to a pension under either of the applicable statutes. In its reasons for decision the Board held that under LSA-R.S. 33:2292 George Werner was not entitled to a pension because he had not become “permanently disabled so as to render his retirement from service necessary.” It was the Board’s considered opinion that Werner could continue to work in some sedentary capacity within the New Orleans Police Department, and therefore that his retirement from service was not necessary. Miller v. Board of Trustees of Police Pension Fund Of the City of New Orleans, 286 So.2d 788 (La.App. 4th Cir.1974).

The appellant goes on to claim, however, that LSA-R.S. 33:2292 and LSA-R.S. 33:2294(E) and (F) should be read in pari materia. While we believe that 2294 does apply to officers who are not injured in the active discharge of duty, we do not agree that these articles should be read in pari materia. Even if they were to be read in this manner, 2294 still would not apply to this case because it requires that the applicant be “physically or mentally permanently disabled and incapacitated to perform his duties.” (emphasis added). And, as we have noted, the Board found that Sergeant Werner was capable of carrying out some sedentary duties as a police officer. Miller, supra.

The appellants third and fourth specifications of error assert that there was no evidence that a sedentary job within the police department was available and offered to Werner. We do not believe that it was the Board’s obligation to offer such a job to Sergeant Werner. It was the Board’s duty to determine whether Werner was disabled within the meaning of the applicable statutes such that either his retirement from service was necessary or he was incapacitated to perform his duties. The Board determined that retirement was not necessary and that Werner could work in a sedentary job. Sergeant Werner is correct that no evidence was offered to prove that such jobs are available within the police department. The Board, however, was under no duty to offer such evidence. Their only duty at that time was to determine whether Sergeant Werner was disabled and if so to what extent, in order to determine whether he could continue to function as a police officer. The Board performed its duty.

Werner’s fifth specification of error is that the Board failed to give Werner a fair hearing thus depriving him of his right to due process as guaranteed by the Fourteenth Amendment to the United States Constitution and the La. Const, art. I, § 2. In ruling on this argument, we adopt the district court’s reasons for judgment.

The record does indicate that there was confusion and on occasion disorder during the two hearings. One of the reasons that chaos occurred stems from the fact that the Board had two legal representatives present who were allowed to inject themselves into the proceedings at any time without any restraint. It appears from the record that one of them was representing the Board, which is composed of laymen, and the other attorney was representing the New Orleans Police Department and possibly the Board also. Appellant’s attorney aggressively represented his client and was forceful throughout the record. Nevertheless, counsel for appellant was able to introduce all the testimony and evidence into the record necessary to adjudicate this claim.
Our law does not entitle litigants to a perfect hearing but only to a reasonable one.

Appellant’s claim that he did not receive a fair hearing is without merit.

In sum, we do not believe that the Board committed manifest error in finding that George Werner’s injury was not so disabling that he could not perform some types of police work and thus was not entitled to a disability pension under LSA-R.S. 33:2292. We also find that Werner was not entitled to a disability pension under LSA-R.S. 33:2294. In addition, we agree with the trial court that Werner received a fair hearing and was not deprived of due process.

For the foregoing reasons the decision of the district court is affirmed.

AFFIRMED.

      . La. Const, art. 5 § 10(B) governs the scope of review of the appellate courts and states in part that, "Except as limited to questions of law by this constitution, or as provided by law in the review of administrative agency determinations, appellate jurisdiction of a court of appeal extends to law and facts.”
      LSA-R.S. 49:964 covers the scope of judicial review of administrative proceedings. Section G of that statute states:
      G. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
      (1) In violation of constitutional or statutory provisions
      (2) In excess of the statutory authority of the agency
      (3) Made upon unlawful procedure
      (4) Affected by other error of law
      (5) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or
      (6) Manifestly erroneous in view of the reliable, probative, and substantial evidence on the whole record. In the application of the rule, where the agency has the opportunity to judge the credibility of witnesses by first hand observation of demeanor on the witness stand and the reviewing court does not, due regard shall be given to the agency’s determination of credibility issues.
      R.S. 49:965 governs appeals of the district court decisions and states, "An aggrieved party may obtain a review of any final judgment of the district court by appeal to the appropriate circuit court of appeal. The appeal shall be taken as in other civil cases."

      . 2292. Disability payments. If any officer, member, or employee of the police department, at any time, while in the active discharge of duty, becomes permanently disabled so as to render his retirement from service necessary, he shall be retired by a two-thirds vote of the members of the board and shall receive a sum not to exceed fifty per cent of his salary at the time of the permanent disability. This sum shall never be reduced from the amount awarded at retirement. The board may employ a doctor to assist, if necessary, in establishing the disability.

      . 2294. Retirement of members having twenty years or more of service
      ... E. If any member of the police department shall become physically or mentally permanently disabled and incapacitated to perform his duties and such disability is not the direct result of a service incurred injury or illness, then, in that event, the board of trustees, by a majority vote of its members, shall determine whether or not such member shall be retired for disability ...
      F. Should any member become disabled from injury incurred in the scope of employment and while in service he shall be paid a disability benefit to be determined by the board based on the extent of his disability but not to exceed fifty percent of his salary at the time he becomes disabled. Should such member become disabled from any cause, whether service connected or not, after ten years of creditable service he shall be entitled to a disability benefit to be determined by the board, based on the extent of his disability, but not to exceed fifty percent of his average annual salary for his highest five consecutive years, provided that monies received as overtime pay (whether voluntary or involuntary) court time pay and holiday pay shall be considered as salary for the purposes of this act.
      The board shall require annual medical examination of disabled members and should the board determine that any member has recovered from his disability he shall be required to return to active duty and his disability payments shall cease.


author: WARD, Judge.

text:
    WAGNER & TRUAX CO., INC. v. BARNETT ENTERPRISES, INC.
    No. CA 0986.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Rehearing Denied April 25, 1984.

      Edwin O. Schlesinger, Steeg & O’Connor, New Orleans, for Wagner & Truax Co., Inc., plaintiff-appellee.
    Michael H. Bagot, Bagot & Gniady, New Orleans, for Barnett Enterprises, Inc., defendant-appellant.
    Before SCHOTT, BARRY and WARD, JJ.
   WARD, Judge.

This is a suit for payment of a real estate commission that Wagner & Truax Co., Inc. claims it earned by the efforts of its agent in procuring a lease of commercial property owned by defendant Barnett Enterprises, Inc. Wagner & Truax sued Barnett as the owner of the property and Farnsworth-Samuel, Ltd., as Barnett’s listing agent, claiming both are liable to Wagner & Truax for the commission. The Civil District Court, Orleans Parish, Robert A. Katz, J., entered judgment in favor of Wagner & Truax and against Barnett for three and one-half percent of accrued and future rent under the lease and Barnett has appealed. Judgment was also rendered against Wagner & Truax and in favor of Farnsworth-Samuel, Ltd, denying Wagner & Truax’s claim. Although Wagner & Truax has filed its brief asking that we affirm, it did not appeal the judgment against it and that judgment is therefore final.

We reverse in light of the facts and the law.

Barnett owns the property and had used it at one time as a retail outlet for its furniture business. Beginning in 1975, Barnett listed the property through a series of consecutive agreements with real estate agents: Stan Weber and Associates, Inc., Farnsworth-Samuel, Ltd., Latter and Blum, Inc., and Charles L. Crawford. Pat’s Furniture Showrooms of New Orleans, Inc., leased the property on January 16, 1978, when Charles L. Crawford was the agent.

Pat’s Furniture’s president, J. Patton Mashburn, had been first introduced to the property in 1976 by an agent of Stan Weber, but little or nothing else was done to negotiate a lease. Real estate agents often work together, and later, in January of 1977, while the property was listed with Farnsworth-Samuel, Newton Fisk of Wagner & Truax contacted Mashburn with the approval of Farnsworth-Samuel and again showed Mashburn the property. In the spring of 1977 Fisk participated in three or four meetings to negotiate' terms of a lease with Mashburn, Barnett and Farnsworth-Samuel. The parties, however, were unable to reach an agreement because Barnett demanded a percentage rental and Mashburn refused to pay it. When these negotiations failed, Mashburn began negotiating to lease property for a store in another city. After those negotiations also failed, in September of 1977 Mashburn told Fisk that although he was still interested in the Barnett property he would handle the matter himself. In spite of this, Fisk sent copies of a proposed lease to Mashburn and Barnett, but each received proposals with different lease forms, and each ignored the proposal. Fisk continued to contact Barnett through September and October, but his calls were unsolicited and sometimes they were about other properties. On October 3, 1977, Barnett listed the property with another broker, Charles Crawford, and after Crawford advertised the property Mashburn began negotiations with him. After Barnett, Crawford, and Mashburn met three or four times, those negotiations culminated in a lease of the property from Barnett to Pat’s Furniture on January 16, 1978. Other evidence in the record indicates Barnett attempted to circumvent an obligation to pay a commission, although ultimately Barnett paid a commission of 1% to Charles Crawford.

Wagner & Truax, as a submitting broker affiliated with Farnsworth-Samuel, first filed suit only against Barnett, claiming there was either a contract between it and Barnett, or that it may rely on the listing contract between Barnett and Farnsworth-Samuel. That contract had a standard provision giving Farnsworth-Samuel the right to affiliate and work with other brokers to promote the lease of the property, and it provided for a commission to Farnsworth-Samuel, the listing broker, of 7% of the gross rent collected by the lessor. The listing contract, in existence from September 20, 1976 until March 20, 1977, also contained a broker’s protective provision and required payment of the commission upon: “The sale, exchange or lease of said property, within one year after termination of this Authorization and all extensions hereof, to parties with whom [Farnsworth-Samuel] has negotiated before the termination [of the listing contract]...”

The record shows first, Wagner & Truax was a broker affiliated with Farnsworth-Samuel within the meaning of the listing agreement; second, Wagner & Truax, through Newton Fisk, had negotiated with Mashburn during the existence of the listing agreement; and third, the property was leased to Mashburn within the one year “protective” period. The record also shows that it is a custom among local real estate brokers that a listing broker, in this case Farnsworth-Samuel, evenly split commissions earned with a submitting broker, such as Wagner & Truax.

Although Farnsworth-Samuel had not yet sued Barnett, it claimed a commission was due. On May 4, 1981, after the filing of this lawsuit by Wagner & Truax against Barnett, Barnett and Farnsworth-Samuel compromised Farnsworth-Samuel’s claims, and Barnett paid Farnsworth-Samuel $13,-500. Upon learning of this, and fearing Farnsworth-Samuel may be a necessary party, Wagner & Truax joined Farnsworth-Samuel as a defendant in October, 1981. After Wagner & Truax sued Farnsworth-Samuel, Wagner & Truax discovered Barnett had promised to hold Farnsworth-Sam-uel harmless for any judgment in favor of Wagner & Truax. The Trial Judge, nevertheless, rendered judgment against Wagner & Truax and in favor of Farnsworth-Samuel. Since Wagner & Truax did not appeal, we do not have to decide if there was a contract between Wagner & Truax and Farnsworth-Samuel, nor if the Trial Judge erred when he found none existed.

Wagner & Truax takes two approaches to support its claim against Barnett. First, it contends that there was a contract, although not a written one, between it and Barnett. In the alternative, Wagner & Truax contends that it was a third party beneficiary of the listing contract between Barnett and Farnsworth-Samuel, contending its agent, Newton Fisk, brought Mash-burn to Farnsworth-Samuel who negotiated with Mashburn during the existence of its listing contract. Since Barnett leased to Mashburn within one year after termination of the listing contract, Barnett owes Farnsworth-Samuel a commission by virtue of the protective provisions. Wagner & Truax, as an affiliated broker, was then entitled to one-half of Farnsworth-Samuel’s commission in accord with the custom of the trade. Wagner & Truax strongly argues that Barnett’s promise to pay Farns-worth-Samuel a commission when earned through its efforts or through those of any affiliated broker, was a stipulation pour autrui and that Wagner & Truax, an affiliated broker, was a third party beneficiary, and it may recover from Barnett.

The Trial Judge did not reach the question of whether there was a contract between Barnett and Wagner & Truax because he found that Wagner & Truax was the third party beneficiary of Barnett’s promise to Farnsworth-Samuel, and he held that Barnett owed Wagner & Truax one-half of Farnsworth-Samuel’s seven percent commission.

We believe the Trial Judge erred. We hold there was neither a contract between Barnett and Wagner & Truax nor a stipulation pour autrui, and Barnett is not liable to Wagner & Truax.

Before turning to the question of a stipulation pour autrui, we first hold there was no contract between Barnett and Wagner & Truax. In general, a real estate broker cannot recover a commission unless he shows an agreement for the payment of compensation for his services. A broker is not entitled to payment even on a quantum meruit basis where he has no express or implied contract with the party from whom he seeks a commission. Bender v. International Paint Co., 237 La. 569, 111 So.2d 775 (1959); Arnold v. Louisiana Health Service and Indemnity Co., 396 So.2d 1012 (La.App. 1st Cir.1981). There must be a contract of employment, either express or implied from the facts, and no one can claim compensation from one who did not employ him, however beneficial of valuable the services may prove. Rosenthal v. Cangelosi, 164 So. 502 (La.App. 1st Cir.1935).

In this case there was no written listing contract between Barnett and Wagner & Truax, and the record does not indicate an oral or implied contract. Rather, the record shows that Barnett contracted only with its listing agent, Farnsworth-Samuel, and not with Wagner & Truax or any other brokers that Farnsworth-Samuel might have affiliated to lease the property.

Turning now to the stipulation pour au-trui, the argument of Wagner & Truax is that it may recover its commission from Barnett as a third party beneficiary of the contract between Farnsworth-Samuel and Barnett wherein Barnett promised to pay Farnsworth-Samuel a commission. We disagree for the following reasons.

Article 1890 of the Louisiana Civil Code provides:

A person may also, in his own name, make some advantage for a third person the condition or consideration of a commutative contract, or onerous donation; and if such third person consents to avail himself of the advantage stipulated in his favor, the contract cannot be revoked.

This Article describes what is known in Louisiana as the stipulation pour autrui, and when a commutative (bilateral) contract contains a stipulation pour autrui, the third person has a right of action against the promisor. However, the prom-isee or stipulator, the one who has obtained a promise from the promisor, must have intended to confer a benefit upon a third person by the promisor fulfilling his part of the contract.

Hence, the existence of a stipulation depends upon both the promisee’s intention to confer a benefit upon a third party and the promisor’s agreement to do so. In addition, the stipulated advantage or benefit must be contemplated by each of the contracting parties. Admittedly some of the cases seem to go beyond.this. See Capital Bank & Trust Co. v. Core, 343 So.2d 284 (La.App. 1st Cir.) writ denied 345 So.2d 504 (La.1977). Nevertheless, we believe that at the time of the contract the promisor must at least have contemplated conferring a benefit on a third party beneficiary. State v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976). C.H. Leavell & Co. v. Glantz Contracting Corporation, 322 F.Supp. 779 (E.D.La.1971).

At the time Barnett and Farns-worth-Samuel entered into the listing agreement, Farnsworth-Samuel did not know who, if anyone, would be affiliated with it, and could not have contemplated eliciting a promise from Barnett to confer a benefit on Wagner & Truax. Although in the listing agreement Barnett recognized the right of Farnsworth-Samuel to affiliate other brokers, Barnett did not know who, if anyone, Farnsworth-Samuel would affiliate, and it is evident that Barnett did not promise Farnsworth-Samuel that it would pay a commission to Wagner & Truax. Rather, Barnett promised only to pay Farnsworth-Samuel—no one else—to procure a lease of Barnett’s property. Any agreement Farnsworth-Samuel made with affiliated brokers was not part of its contract with Barnett, and there was no obligation owed by Barnett to Wagner & Truax, even though Farnsworth-Samuel may well have owed a natural obligation to pay one-half of any commission received or any sum in settlement, including any amount paid under the hold harmless agreement.

Finally, the benefit in favor of the third party may not be merely incidental to the agreement in question. HMC Management Corp. v. New Orleans Basketball Club, 375 So.2d 700 (La.App. 4th Cir.1979) writ denied 378 So.2d 1384; 379 So.2d 11 (1980).

[N]ot every promise, performance of which may be advantageous to a third person, will create in him an actionable right. The problem is to separate the cases where an advantage has been stipulated from those where the advantage relied upon is merely an incident of the contract between the parties.

Smith, “Third Party Beneficiaries in Louisiana: The Stipulation Pour Autrui”, 11 Tulane L.Rev. 18, 28 (1936).

And, while it is true Barnett’s promise to pay a commission to Farnsworth-Samuel may have incidentally benefitted Wagner & Truax, since Farnsworth-Samuel would be obligated to split the commission with Wagner & Truax when it was paid, this is not a stipulation pour autrui.

In sum, we hold Barnett did not promise to pay Wagner & Truax a commission. Nor was there a stipulation pour autrui because it was never a “condition or consideration” of Barnett’s contract with Farns-worth to confer a benefit or advantage to Wagner & Truax, although Wagner & Truax may have incidentally benefitted if Barnett paid Farnsworth-Samuel a commission.

Reversed. Wagner & Truax, Inc. is to pay all costs of trial and this appeal.