author: STOKER, Judge.

text:
    F.E. STERLING, et ux, Plaintiffs-Appellants, v. AUDUBON INSURANCE COMPANY, Defendant-Appellee.
    No. 83-694.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Writ Denied Sept. 14, 1984.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiffs-appellants.
    Bolen & Erwin, Marsha Hopper and James A. Bolen, Jr., Alexandria, for defendant-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   STOKER, Judge.

Plaintiff homeowners seek to recover for alleged insured losses to a house owned by them under a vandalism and malicious mischief endorsement to a homeowner’s policy. Some of the loss consists of appliances or equipment attached to the house which were taken from the house and which have not been found. The basic policy provides no coverage for theft of items from the insured premises. ' The primary issue in this case is whether the detachment and removal of items from the house structure is a covered loss under the vandalism and malicious mischief endorsement of the insurance policy.

Another issue consists of the amount of recovery plaintiffs should have. (Plaintiffs are entitled to some recovery in any event, as some damages done to the premises clearly were caused by acts of vandalism and malicious mischief.) A final issue is whether plaintiffs are entitled to penalties and attorney’s fees.

The trial court’s reasons for judgment do not make any ruling on the primary issue, but the trial court did hold that plaintiffs were entitled to $1500 in “damages.” Penalties and attorney’s fees were denied.

FACTS

Plaintiffs owned a residence building at 800 Lafitte Drive in Alexandria, Louisiana, which they rented to tenants. The building was unfurnished but was equipped with a gas fueled kitchen range. It was centrally heated and air-conditioned. Plaintiffs’ tenants vacated the premises by February 14, 1982, and plaintiffs inspected the premises on that day and found them to be in excellent condition. Thereafter the house was broken into on three separate occasions, March 7, March 9 and April 18, 1982. On the three occasions parties unknown committed acts of vandalism including soiling carpets and marking or writing on walls. Light fixtures were torn and removed from the premises and in at least one instance a fixture was left hanging as if the parties had abandoned the attempt to remove the fixture. The hood over the kitchen range was badly damaged. Various other acts of vandalism causing damage could be cata-logued.

In addition to light fixtures taken, the unknown parties also took the air-conditioner compressor, the kitchen range, and ripped up a certain amount of carpeting which was carried away. A number of smaller items were taken. None of the items taken from the premises were ever found.

Plaintiffs’ rent house was insured by defendant Audubon Insurance Company (Audubon) for fire and other perils but the policy did not insure theft from the premises. The policy contained an endorsement to cover losses resulting from vandalism and malicious mischief. The provisions of this endorsement pertinent here are:

“B. The perils of Vandalism and Malicious Mischief, as defined and limited herein, are added to and made a part of the ‘Perils Insured Against’ section of the form(s) of which this endorsement is made a part.
“C. Loss by vandalism or malicious mischief shall mean only the willful and malicious damage to or destruction of the property covered. The Company shall not be liable, as respects, these perils, for any loss:
“2. By pilferage, theft, burglary or larceny, except that this Company shall be liable for willful damage to the building(s) covered hereunder caused by burglars; ...”

Audubon concluded that plaintiffs’ insured loss, as defined and limited, amounted to $695.40. After applying deductibles amounting to $200, Audubon sent plaintiffs a draft or check for $495.40. Audubon took the position that it was liable for damage to the building but not for replacement of items completely removed from the building. It regarded items removed from the building as subjects of theft or burglary and as excluded losses under the endorsement for vandalism and malicious mischief.

Plaintiffs brought this suit for the amount of all of their loss, taking the position that removal of items attached to the building constituted damage to the building. Generally the items carried away were detached with some force and violence. The air-conditioner compresser was on a concrete slab base outside of the house. Tubing running into the equipment inside the house was cut in the process of removing the compressor from the base.

TRIAL COURT ACTION

The basis for the trial court’s award of $1500 is not at all clear. In the trial court’s brief reasons for judgment it stated:

“A strict and literal interpretation of the policy provisions would clearly support the provisions (sic) taken by the defendant. On the other hand, it is understandable that the plaintiffs feel that they should have more protection under their insurance policy.
“The tender of $495.40 appears to be adequate for the specific items reflected in that aspect of the coverage. The Court feels inclined to give some relief to the plaintiffs in the form of damages occasioned by the vandalism, and awards the amount of FIFTEEN HUNDRED ($1500.00) DOLLARS.”

MATTERS ON APPEAL

The plaintiffs appealed the trial court’s judgment and urge on appeal (1) that the award is grossly inadequate (2) and that the trial court erred in not awarding penalties and attorney’s fees. The appellee, Audubon, answered the appeal and asserted that the award of $1500 was “incorrect as a matter of law.” Audubon prayed that the judgment be reversed and set aside and dismissed at plaintiffs’ costs.

INSURANCE COVERAGE

The basic policy in question here provides insurance for fire and lightning and extended coverage. No coverage is provided for theft, burglary or pilferage. By endorsement, coverage for vandalism and malicious mischief is added, the provisions of which are quoted above.

Preliminarily we note that before there can be a recovery for either vandalism or malicious mischief it must be shown that there was an actual purpose or design, an intent, to injure, damage or destroy. Ducote v. United States Fidelity & Guaranty Co., 241 La. 677, 130 So.2d 649 (1961); Thomas v. Pennsylvania Fire Insurance Company, 163 So.2d 202 (La.App. 4th Cir. 1964), writ refused, 246 La. 583, 165 So.2d 481 (1964) and Lanza Enterprises, Inc. v. Continental Insurance Co., 142 So.2d 580 (La.App. 3rd Cir.1962). Thus, intent becomes a key factor in an action to recover for loss through alleged acts of vandalism or malicious mischief.

In the Lanza case two significant holdings were announced. First, it was held that an insured is not required to show that destructive acts were motivated by malice against the property owner himself in order for an owner to recover against the insurer. Second, it was held that in suits for recovery of loss under a vandalism and malicious mischief policy, direct proof of intention to damage property is not required; such intention may be established by circumstantial evidence. Although the Lanza case establishes a broad and liberal test for determining intention, it is of little help to plaintiffs as insureds in this case because no taking or theft was involved in Lanza.

In Lanz.a this court of appeal, affirming the trial court, was faced with these facts. Over a week-end unknown parties entered a building under construction and turned on a water hose which led up to the fourth floor of the building for temporary use in laying terrazzo tile floors. The water was left running and damaged the building through flooding of the floors beneath the fourth floor. This Court concluded that, since the unknown parties who turned on the water and left it running would know the probable consequences of their act, the intention to cause damage to the building could be presumed.

In Ducote v. USF & G Co., supra, the Louisiana Supreme Court held that damage to a motor vehicle resulting from the operator’s negligence did not constitute vandalism or malicious mischief within insurance coverage for losses sustained in a vehicular collision. In Ducote the Supreme Court held that intentional damage was required as opposed to negligently caused damage.

Beyond the general principles of law announced in Ducote and Lanza, these two cases are not factually apposite to the case of Mr. and Mrs. Sterling before us. The facts of this case bear some similarity to Thomas v. Pennsylvania Fire Insurance Company, supra. In Thomas the insured owner sought to recover the replacement value of a bulldozer blade and the cost of repairing damage to the radiator core of a D-7 caterpillar tractor. There was no evidence as to how and by whose action the bulldozer blade came to be missing. The Court of Appeal for the Fourth Circuit concluded there was no evidence that any intent, purpose or design to commit vandalism or malicious mischief was involved in the loss of the blade or the damage to the radiator. (The blade was approximately 10 feet in width, 3 or 3½ feet in height and weighed about 4,000 pounds.)

In Thomas the policy of the insurer provided insurance coverage against loss or damage directly caused by theft, vandalism or malicious mischief but did not cover mysterious disappearance. After concluding that Thomas could not recover under the vandalism or malicious mischief provisions of the policy, the court concluded that he could recover under the theft provision. In concluding that a theft had occurred the court said in part:

“A recovery by the plaintiff can only be had under the policy provision relative to theft. That insured peril includes an intent to permanently deprive the owner of the blade. Ducote v. United States Fidelity & Guaranty Co., supra.
“We are of the opinion that the facts proved by the plaintiff, as found by the trial court are sufficient to establish that the loss of the blade was occasioned by theft. Considering all of the circumstances no other conclusion is tenable. The size and weight of the blade negative any possibility of misplacement, disappearance or simple loss in the usual sense. It had to be removed by a human agency which not only intended to remove it from the tractor and take it away but was also prepared with the equipment necessary for the accomplishment of that purpose. The fact that the blade has never been found is, under the circumstances peculiar to this case, a sufficient indication that it was removed and taken away with the intention of permanently depriving the owner of the same.”

In the case before us it might very well be that the issue of recovery for the items taken from plaintiffs’ house could be decided on the basis of the absence of any manifest intent in taking these items to vandalize or do malicious mischief. Certainly considerable effort and power (manpower, machine power or both) was required to detach and carry away such items as the air-conditioner compressor and the kitchen range. Considerable effort was evidently involved in ripping up carpeting in two rooms and transporting it away. Tearing out light fixtures may require less effort, but to do so and carry items away is indicative of some fixed purpose more consistent with theft than, vandalism or malicious mischief.

Admittedly, the parties who entered on the three occasions did commit pure acts of vandalism. Consequently, there may have been mixed motives. Nevertheless, there is no evidence to show that the same parties acted on each occasion or that the parties who carried away items were the same who committed the undisputed acts of vandalism. If the same parties were involved throughout, there is a question as to whether vandalism may have been merely incidental to a purpose to commit theft. They may have been committed as separate acts.

The defendant Audubon admits that it is liable for certain items or things in the premises damaged but not removed. Audubon denies that it is liable for the replacement value of items completely removed from the premises.

Despite the possibility that we might pitch our decision on the question of intent, we decline to do so. In their briefs the parties have focused on the meaning of the policy endorsement providing coverage for vandalism and malicious mischief. As we think the legal issue of coverage can be decided on the basis of the policy language, we consider it important that we do so.

INTERPRETATION OF ENDORSEMENT LANGUAGE

Apparently no Louisiana case has considered language such as that quoted above which provides insurance against loss from vandalism or malicious mischief. Of the cases from other states cited in the briefs of the parties we find only three have actually considered such language in a context of facts similar to those involved here. Plaintiffs rely on one Kentucky case and one Texas case. State Automobile Mutual Insurance Co. v. Trautwein, 414 S.W.2d 587 (Ky.1967) and United States Fidelity & Guaranty Co. v. Bimco Iron and Metal Corp., 464 S.W.2d 353 (Tex. 1971). Defendant relies on the California case of Pryor v. State Farm Fire & Cas. Co., 74 Cal.App.3d 183, 141 Cal.Rptr. 394 (5th Dist.1977). Each of these cases construe provisions the same, or quite similar to, those involved in the Audubon policy.

In the Kentucky case, vandals or thieves forceably entered three newly constructed unoccupied apartments owned by Traut-wein and entered a fourth which had been rented, the entrance door of which was not locked. A person or persons whose identity was never discovered removed air conditioning units permanently installed in each apartment unit. The air conditioning units were installed in openings in the walls and could not be removed without damage to the building. The Kentucky court found coverage for all Trautwein’s damages, including the replacement value of the air conditioners taken. The Kentucky court stated: “There can be no doubt that theft was the purpose of the burglars and that they did steal the property of the insured. It is equally certain that the insured realty, of which the air conditioners were integral parts, was damaged in the process.”

In Trautwein, the Kentucky court theorized that taking the units damaged the building and since it occurred during a burglary, the loss was covered. The language construed was as follows:

“2. The term ‘Vandalism and Malicious Mischief as used herein is restricted to and includes only wilful and malicious physical injury to or destruction of the described property.
“3. When this endorsement is attached to a policy covering direct loss to the described property, this Company shall not be liable under this endorsement for any loss
“(a) * * *
“(b) by pilferage, theft, burglary or larceny, except loss by wilful and malicious physical injury to or destruction of a building described and insured hereunder.”

In the Bimco Iron and Metal Corporation case, the Supreme Court of Texas split with reference to the rationale for recovery where burglars entered the insured plaintiff's warehouse, dismantled the electrical system and removed high voltage wiring and transformers. The majority allowed recovery under a restricted or narrow construction of policy language. Relative to the policy issued to Bimco the Texas Supreme Court stated:

“Attached to the policy was the vandalism and malicious mischief endorsement. The relevant portions of the vandalism and malicious mischief endorsement provide (emphasis ours):
“ ‘1. In consideration of $10.00 (Inch) premium and subject to the provisions of this policy and this endorsement, the liability of this Company hereunder for loss or damage resulting from the peril of Riot and Civil Commotion is hereby extended to include loss caused by damage to or destruction of the property described by Vandalism and Malicious Mischief, including damage to the building(s) covered hereunder caused by burglars.
“ ‘2. The term “Vandalism and Malicious Mischief” as used herein is restricted to and includes only willful or malicious physical injury to or destruction of the described property.
“ ‘3. When this endorsement is attached to a policy covering direct loss to the described property, this Company shall not be liable under this endorsement for any loss:
“ ‘(b) by pilferage, theft, burglary or larceny.
⅝ ⅜ ⅜ * * * ) >)

The majority concluded that if paragraph 1 quoted above covered the loss, and if paragraph 3(b) took it away, the insurance contract was ambiguous. Therefore, the contract should be construed liberally in favor of the insured and strictly against the insurer. However, the court majority concluded there was no ambiguity by interpreting paragraph 3(b) to apply only to personal property stolen from the warehouse, such as tools, gauges and miscellaneous materials.

In Bimco four justices, including the Chief Justice, concurred, disagreeing entirely with the rationale of the majority. The author of the concurring opinion (in which the other justices joined) disagreed with the majority opinion insofar as it held “that Bimco was insured against the loss by theft of copper wiring and transformers not shown to have been damaged in the burglary.” The concurring justices found no ambiguity in the provisions of the policy endorsement relative to vandalism and malicious mischief. They were of the opinion that theft was not covered. The concurring justices nevertheless thought that the endorsement covered direct damage or destruction to the building itself caused by burglars and the recovery was measured by the “cost of labor and materials required to restore the damage to the building itself.” The concurring opinion seems to hold that theft itself as a bare proposition is not a covered loss, but insofar as burglary caused damage to an insured building (albeit by theft), the cost of repair was covered.

In Pryor v. State Farm Fire & Cas. Co., supra, a California Court of Appeal came to an entirely different conclusion from Trautwein and Bimco after considering both opinions. In Pryor the plaintiffs commenced construction of three houses for sale. When the houses were being readied for placement on the market unknown persons broke into each of the houses. They disconnected and removed the major built-in appliances, took up the carpeting, and removed various light fixtures and mirrors. The policy endorsement provisions providing vandalism and malicious mischief coverage were virtually identical to those contained in Audubon’s endorsement to the Sterlings’ policy. Apparently three separate policies with endorsements were issued the plaintiffs in Pryor.

In Pryor the California court said:

“The pertinent language of the insurance (identical in all three policies) is:
‘This policy is extended to insure against loss by the following perils as hereinafter provided, only when premium for extended coverage and vandalism and malicious mischief is inserted in the space provided on the first page of this policy or endorsed hereon.
‘9. VANDALISM AND MALICIOUS MISCHIEF meaning only willful and malicious damage to or destruction of the property covered hereunder.
‘THIS COMPANY SHALL NOT BE LIABLE FOR LOSS:
‘(a) * * *
‘(b) ***
‘(c) By pilferage, theft, burglary or larceny, except that this company shall be liable for willful damage to the building(s) covered hereunder caused by burglars.
‘(d) * * *
‘(e) * * *
“The trial judge awarded damages only in the sum of $46.20 for willful damage by the burglars. The court held that the removal of the items came within the definition of pilferage, theft, burglary and larceny and were, therefore, not recoverable under the policy. The correctness of the trial court’s interpretation is the sole issue before us.
“[1] We hold that the taking of built-in appliances and carpeting constituted theft under the terms of the policy. However, we reverse for retrial solely on the amount of damages suffered by the appellant by reason of the removal.
“The clause in question is an extended coverage endorsement to the standard fire contract. The endorsement extended the fire policy to include coverage for vandalism and malicious mischief. Vandalism and malicious mischief are usually defined as willful and malicious damage to, or destruction of, the described property. Historically, the words malicious mischief were added because a dictionary definition often limited vandalism to the willful destruction of a thing of beauty (Unkelsbee v. Homestead Fire Insurance Co. (1945), D.C.Mun.App., 41 A.2d 168, 170; Annot. (1969) 23 A.L.R.3d 1259, 1263; Huebner, Black, Cline, Property and Liability Insurance (1976) (2d ed.) pp. 132-133).”
“The language in the three policies excludes loss by pilfering, theft, burglary, or larceny, but covers damages brought about by burglars. The trial court determined that this was clear and unambiguous; therefore, plaintiff could not recover for either the theft of the items removed from the houses or the labor costs incurred in installing replacements. Appellants contend that the act of removing the items from the houses constituted damage to the houses themselves. Consequently, they believe that they are covered under the policy. Respondent states that no structural damage was done to the houses; hence, only a theft occurred, and since theft is explicitly excluded from coverage, appellants have no claim.”

The California court then referred to the Trautwein and Bimco cases and stated that it was not persuaded by the ratio decidendi of those cases. (As to Bimco the California court referred to the opinion in the Texas Court of Civil Appeals, 455 S.W.2d 828, rather than the Texas Supreme Court opinion in Bimco.) The California court found no ambiguity in the policy language and held that “the clause in the policies in this case is clear on its face— replacement cost of the stolen items is not compensable.” And further: “We decline to follow the holdings of Trautwein and Bimco as to replacement costs.”

Although it rejected the cost of replacement concept, the California court held that damage to the houses caused by removing the items was covered under the policies. It held that the trial court erred in not allowing recovery against the insurer for the labor costs incurred in reinstalling the replacement items. For another opinion involving similar policy language in which coverage was found for damage caused by vandals, but not for items taken from the insured property, see Theo v. National Union Fire Insurance Company, 90 Ga.App. 342, 109 S.E.2d 53 (1959).

After considering the wisdom set forth in the three cases from Kentucky, Texas (majority and concurring opinion), and California, we consider that the interpretation given by the California court in Pryor v. State Farm Fire & Cas. Co. to represent the correct interpretation of the policy endorsement language under consideration by us. As we see the matter, there would be no coverage at all were it not for the addition of the language “except that this Company [Audubon] shall be liable for willful damage to the building(s) covered hereunder caused by burglars.” In other words, a theft or burglary is a theft or burglary and is excluded from coverage insofar as replacement cost of the stolen items is concerned. Because of the added language allowing coverage for damage caused by burglars, the insureds are entitled to the cost necessary to install replacement items but not the costs of the items themselves.

In Pryor the California court stated:

“The correct measure of damages in this case is the installation costs after new appliances, carpeting, and light fixtures have been purchased. Therefore, we conclude that the trial court erred in not construing the policies in the broadest way possible for the appellant so as to allow recovery against respondent for the labor costs incurred in reinstalling the items.”

The paragraph preceding the above makes it clear, however, that incidental damage done by burglars in the act of removing stolen property is also covered.

DETERMINATION OF AMOUNT OF RECOVERY

The trial court’s conclusion that plaintiffs are entitled to recovery “in the form of damages” is clearly wrong. This present suit is a suit on an insurance contract and is neither a suit for damages for breach of contract nor damages in tort. The written reasons for judgment are also unclear, if not inconsistent, in that the trial court first states the tender of $495.40 “appears to be adequate for the specific items reflected in that aspect of the coverage” and then awards $1500 in damages. Under the circumstances, we must consider the record to determine ourselves what amount plaintiffs are entitled to recover consistent with our interpretation of the endorsement covering vandalism and malicious mischief as outlined above.

Exclusive of their claim for lost rent, plaintiffs’ claims are set forth on Plaintiffs’ Exhibit No. 5, a copy of which was submitted by them at the time they made their insurance claim. It was used by the insurance adjusters in considering and processing the claim and their copy was introduced as Defendant’s Exhibit No. 2. Because it will be necessary to discuss individual items, we set forth in its entirety Plaintiffs’ Exhibit No. 5. It reads:

“Summary of Replacement and Repair Estimates
800 Lafitte Street
Alexandria, Louisiana
1. Replacement and installation of A/C Compressor. $1109.00 Carrier #38EB036
Air Conditioning Appliance Corporation
1901 Lee
Alexandria, Louisiana 71301
2. Replacement and installation of carpeting. $ 961.03
44.18 Square Yards at $17.95/sq. yd.
Clark-Dunbar
3600 Jackson
Alexandria, Louisiana 71301
3. Replacement and installation of kitchen range. $ 600.55
Kenmore range #72424
Sears and Roebuck Co.
3401 Masonic Drive
Alexandria, Louisiana 71301
4. Replacement of window screen. $ 14.70
.74 (tax)
31" X 51⅝⅛" aluminum frame, fiberglass screen
Lemoine’s Blind and Awning
1712 Van Street
Alexandria, Louisiana 71301
5. Replace 5 window panes
Paint one wall and touch-up paint in front bedroom
Finish and install bi-fold closet doors in master bedroom
Repair range vent hood. $ 55.00
10.00 (estimated fee)
3.25 (tax)
Total $ 68.25
6. Strip and refinish kitchen-dining and living room and hallway floors
Clean window sills in three bedrooms (damaged or soiled by vandals)
Clean door facings soiled by vandals . $ 150.00
7.50 (tax)
Service Master of Alexandria
6604 Masonic Drive
Alexandria, Louisiana 71301
7. Replacement of 1 pair of curtains. $ 25.00
1.25 (tax)
Montgomery Ward
1804 McArthur Drive
Alexandria, Louisiana 71301
8. Replace one dummy door knob $ 3.77
Stock #A12A (Weiser)
One pair two-panel bi-fold doors for closet in master
bedroom. $ 73.49
80¾" X 48" opening
One light fixture (living room) . $ 199.49
Two light fixtures (bathroom) @ $21.99. $ 46.18
One light fixture (kitchen). $ 52.49
One light fixture (dining room). $ 59.24
One light fixture (kitchen sink). $ 11.06
Two door stops @ .59 each. $ 1.24
Three curtain rod brackets @ .39 each. $ 1.23
Lowe’s Building Materials
1819 Memorial Drive
Alexandria, Louisiana 71301
9.Replace light bulbs (stolen by vandals)
Eight 60 Watt bulbs @ $2.47 for package of 4 . $ 5.19
Howard’s Department Discount Store
616 McArthur Drive
Alexandria, Louisiana 71301
10.Replace stolen closet rods (4). $ 28.88
17'-1" pipe cut to appropriate lengths
John Ward Hardware
1734 Lee — Alexandria, Louisiana 71301”

Mr. Robert W. McDaniel, who has his own insurance claims adjusting firm, testified to explain how the figure of $495.40 was derived as the amount to offer to the plaintiffs. He explained that after excluding items missing and identifying damaged items the total came to $695.40. He applied two deductibles of $100 each or a total of $200. Thus, the amount of the claim allowed by Audubon less deductibles was $495.40.

The items which Mr. McDaniel testified he recommended as being covered under the vandalism and malicious mischief endorsement were:

Item 2 in part, specifically 20 yards of carpeting at $17.95 per square yard $376.95

Item 4: Replacement of window screen 15.44

Item 5: Replacement of 5 window panes

Paint one wall Touch-up paint in front bedroom

Finish and install bi-fold doors in master bedroom

Repair range vent hood 68.25

Item 6: Strip and refinish kitchen-dining and living room and hallway floors Clean windows sills in three bedrooms (damaged or soiled by vandals)

Clean door facings soiled by vandals $157.50

Item 8 to the extent of: Replacement of 1 dummy door knob 3.77

Replacement of 1 pair of bi-fold doors for closet in master bedroom 73.49

Total for items allowed $695.40

Plaintiffs contend that Audubon is not in good faith in maintaining that it is not liable for items apparently stolen but is liable for items not removed from the premises. Plaintiffs testified that three items Audubon allowed were actually taken from the premises. These were the window screen (Item 4), the dining door knob (included in Item 8), and the bi-fold closet doors replacement (included in Item 8 and finishing and installing included in Item 5). The testimony of Mr. McDaniel and of Arthur L. McGee, who also testified on behalf of Audubon, made it clear that they were of the impression that these items were left on the premises. Otherwise, these items would not have been included in the items to be paid for. If they were in error, their misinformation or mistaken impression resulted in error in plaintiffs’ favor, insofar as amount is concerned. (Actually, the bi-fold doors were taken or torn down but on the premises at the time of the first discovery of the acts of vandalism; it was after the next visit that they were missing.)

In any event, we cannot see that plaintiffs’ argument concerning these three items changes the result of this case. It does not change the policy interpretation we follow. If defendant’s application of that policy is not consistent, it does not change the law. The only change which would result is that Audubon’s liability would be lessened, but Audubon has made it clear that it will not concern itself over the difference and is willing to admit liability for $695.40, less the deductible amounts.

Plaintiffs’ largest single claim is Item 1 covering replacement and installation of the air-conditioner compressor. There is no breakdown showing how much is for replacement cost and how much is for installation. Hence, no allowance may be made for Item 1.

With respect to Item 2, replacement and installation of carpeting, Mr. McDaniel explained that 20 yards was allowed because that was the amount of carpeting not taken away but which was damaged. Thus, recovery for replacement of 24.18 yards should be disallowed. However, the quotation furnished by Clark-Dunbar shows a break down of $793.05 for materials, $128.33 for labor and $39.65 for tax. The total of these three elements comes to $961, which is the full amount plaintiffs claimed. Plaintiffs’ claim list (P-5) shows the total yardage of carpeting to be 44.18. The figure of $17.95 times 44.18 square yards equals $793.03, which was within two cents of the amount listed by Clark-Dunbar for materials. McDaniel allowed 20 yards (20 x $17.95 = $359.00, plus tax of $17.95 of 5%) for a total of $376.95. It may be seen that nothing was allowed for labor to install the carpeting. Moreover, under our holding plaintiffs are entitled to the full amount of the labor costs estimated to install 44.18 square yards of carpeting. This amount is $128.33. Plaintiffs’ recovery should reflect this additional amount.

In all other respects the disallowances by Audubon appear to be proper, based on our conclusion as to the interpretation to be given the insurance policy endorsement. At oral argument counsel for the plaintiffs urged that Audubon had never made any tender or offer for the cost of “cleaning up” the premises and taking care of the littering, soiling, marking and writing on walls, and so forth. Plaintiffs submitted P-5 as their statement of damages. We presume it listed all of plaintiffs' claims for such clean up and it certainly should have. Exhibit P-5 was made a part of plaintiffs’ petition. (See paragraph 8.) We note that Item 6 consists of a proposal by Service Master of Alexandria which presumably covers this type of work. Also, Item 5 includes painting of one wall and touch up painting in the front bedroom. Accordingly, we are not persuaded that Audubon has refused to pay for “clean up” work.

In their petition (paragraph 11), plaintiffs allege they lost rental income of $1,125, and some testimony regarding lost rent was given at the trial. No mention of this claim is made in plaintiffs’ brief, but as we see it, the matter is of no moment in this suit. Regardless of what may have been proved, the endorsement in question provides: “Loss by vandalism or malicious mischief shall mean only the willful and malicious damage to or destruction of the property covered.” Hence, inability to rent the premises because of the condition of the premises would not be covered. Only the cost of direct damage or destruction is included in the definition.

PENALTIES AND ATTORNEYS’ FEES

From our' review of this case we conclude that the trial court correctly denied penalties and attorneys’ fees to plaintiffs. The legal position adopted by the defendant insurer is the position which we deem to be the correct position. Consistent with that position defendant sent plaintiffs a draft or check for $495.40 without requiring any release of their rights. Although we find that the amount should be increased by $128.33, the failure to include this amount was not arbitrary or capricious in the sense of justifying penalties and attorneys’ fees.

CONCLUSION

Both parties in this appeal complain that the trial court’s award of $1,500 to plaintiffs was error, and we agree. The award will be amended to change the award to the amount of $623.73 so as to include the amount tendered of $495.40 plus the sum of $128.33. As thus amended, the judgment is affirmed.

The costs of this appeal are assessed equally to appellants and appellee.

AMENDED AND AFFIRMED.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Randall LEWIS.
    No. KA-1348.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 16, 1984.
    Writ Granted in Part Oct. 5, 1984.

      Peter J. Compagno, Sanford Krasnoff, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for appellee.
    Before CIACCIO, LOBRANO and WARD, JJ.
   CIACCIO, Judge.

Randall Lewis was charged with the crime of forcible rape and a jury convicted him as charged. R.S.14:42.1. The defendant was sentenced to serve thirty (30) years at hard labor at the State Department of Corrections with credit for time served. He was also assessed court cost and in default of this payment he was to serve an additional thirty (30) days in Parish Jail. The defendant appeals his conviction and sentence relying on thirteen (13) assignments of error. We affirm the defendant’s conviction. The sentence is vacated and the case is remanded for resentencing.

On October 7, 1982, the victim had attended class at the Southern University lakefront campus. She was given a ride by a professor from the campus to the intersection of Chef Menteur Highway and Press Street, where she was to catch the Broad Street bus to her residence in the uptown Carrollton area. On the night in question it was raining heavily and the victim sought shelter near a Martinizer Cleaners which was located in the shopping center near the intersection. As she waited for the arrival of her bus, a black male in a brown Monte Carlo automobile drove into the area and commented to the victim about the fact that she was waiting in the rain alone. He then drove his car to the pay phone in the vicinity where the victim was standing and he got out of his car and used the phone. He returned to his car but left again and walked behind the victim. He then grabbed her from the rear. The victim was screaming and fighting for her release but her assailant managed to push her into his car on the passenger side.

The defendant drove towards the lake as the victim pleaded for her release. The defendant constantly threatened to kill his victim and he reached under the front car seat, as if attempting to retrieve a weapon. After reaching a residential neighborhood near Mithra Street, the defendant stopped his car, pulled the victim’s knees towards him and pulled up her dress. He then proceeded to have sexual intercourse with the victim, without her consent. Following the rape, the defendant apologized repeatedly to his victim and offered to bring her home. The victim tried to talk her assailant into releasing her from the car, but he insisted upon driving her home. He saw her address on a notebook and he then drove her to Carrollton Avenue where he released her in front of the post office. She ran to her house where she told her sister that she had been raped and the police were called.

During this incident the victim made a special effort to remember identifying characteristics of the defendant and his car. With regard to the vehicle she noticed that it was a brown Monte Carlo with golden rims, a yellow breaktag, a torn front seat, the name “Randall” in silver letters on the dashboard and a license with the numbers 6, 5, and B in it. She noticed that the defendant had an indented scar near his right eye. He was wearing a Christ ring, a serpentine chain and thick glasses.

The victim gave these detailed descriptions of the defendant and his car to Officers John Bryson and Geoffrey Kasher. The policemen notified the Rape Squad of the New Orleans Police Department of the incident and then transported the victim to Charity Hospital.

At approximately 1 a.m., the next morning the victim was examined by Dr. Steven Dean, a resident at Charity Hospital and an Acting Assistant Coroner. His examination revealed no signs of physical trauma. She was administered blood tests, pregnancy tests, and a test for venereal disease. A vaginal swab and smear test was administered to the victim. The specimen was left with the nurse in the examination room and was later delivered to the Coroner’s Office for analysis.

Patricia Daniels, a medical technologist with the Coroner’s Office, examined the specimen which had been kept in a locked refrigerator at her office. The test results were positive, indicating sexual intercourse within 24 hours of the examination. The test did not indicate secretor activity, hence no determination could be made regarding the blood type of the assailant.

Approximately two weeks after this rape occurred the victim was again in the vicinity where the attack had occurred when she saw the defendant in his automobile. She ran to catch a bus in order to elude the defendant because she was afraid he might try to kill her. After this incident the victim called Detective David Seghers of the Sex Crimes Unit of the New Orleans Police Department in order to report this incident. Detective Seghers had interviewed the victim on the night that the rape occurred.

The investigation of this case failed to reveal any further information concerning the identity of the defendant. However, on December 21, 1982 the victim was riding on the Tulane Avenue bus on her way to work when she again saw the defendant’s car. The car was parked on Tulane Avenue near Charity Hospital. The victim immediately left the bus and went to the Burger King restaurant to call the police. When the police arrived at the scene and located the victim, she advised the policeman of the location and description of the subject’s car. The officer walked to the car and verified the description. Officers Roland Meline and Tommy Tortorich arrived shortly thereafter and placed the victim in the police car in order to await the defendant’s return to his car.

The defendant and an unidentified black male companion exited the Charity Hospital Clinic and walked towards the car. The victim became hysterical as she identified the defendant as the man who had raped her. The defendant was placed under arrest. The victim, had exited the police car, was very frightened and began running away. She was later subdued and comforted by Officer Tortorich. The defendant was then transported to Central Lockup and booked with the crime of forcible rape.

The defendant’s mother and wife testified that the defendant had received phone calls in August and September, 1982 from an individual who identified herself by the victim’s name. They also testified that Lewis had dated someone by this name. They further stated that the defendant would receive phone calls from this person while he was employed at the Marriott Hotel. According to these witnesses, the caller would advise employees of the hotel who answered the phone that the defendant was a “thief and rapist.” They contended that this harassment resulted in the defendant’s resignation from his position with the hotel. A co-employee of the defendant, Joan Jones, attested to the occurrence of the phone calls. She also stated that the victim, on two occasions, visited the defendant at the hotel.

The victim denied any prior relationship with the defendant. Additionally these facts were also denied by the victim’s sister and by her former room mate. Further, several co-employees of the defendant from the Marriott Hotel refuted the statements given by the defendant’s sister, mother, and by Ms. Jones concerning the telephone calls and visits of the victim to the hotel.

Assignment of Error No. 1

The defendant, by this assignment, contends that the trial court erred in denying his motion to suppress the identification. He argues that the manner of identification was unduly suggestive and the time lapse between the crime and the confrontation for purposes of identification made the identification unreliable.

Our review of the record indicates the absence of a confrontation process for purposes of identification.

In this case the victim saw the defendant’s car and summoned the police. She pointed out the defendant as her assailant, as he exited the Charity Hospital Clinic. The defendant was never presented to the victim as a possible suspect by the police. Accordingly, the trial judge did not err in refusing to suppress the identification evidence. For these reasons, Assignment of Error No. 1 lacks merit.

Assignment of Error No. 2

The defendant, by this assignment of error, contends that the trial court erred in refusing to disqualify a prospective juror for cause. He argues that Juror No. 136 was biased, in that she evidenced by her statements on voir dire that she could not decide this ease with fairness and impartiality.

The defendant has a statutorily prescribed right to challenge for cause any juror who “is not impartial, whatever the cause of his partiality.” La.C.Cr.P. Art. 797.

The trial court’s evaluation of a prospective juror’s fairness and impartiality is entitled to great weight and will not be set aside unless it is arbitrary and unreasonable. State v. Eastin, 419 So.2d 933 (La., 1982). In the instant case we find that the trial court judge did not err in refusing to dismiss for cause Juror No. 136.

The following colloquy occurred during the voir dire examination:

BY THE COURT:
Have any one of you or has anyone close to you been the recent victim of a crime? When I put in “close to you,” I mean by close acquaintance, somebody relatively near to you, either in affection or by blood. Has anyone been the recent victim of a crime?
BY JUROR NO. 136, CAROL K. FROM-HERZ:
Our friend, but no family.
BY THE COURT:
Okay. Something happened to a friend of yours?
BY JUROR NO. 136, CAROL K. FROM-HERZ:
Yes, rape.
BY THE COURT:
Rape? And would that affect you? You realize now this is a rape charge we are going to be dealing with here.
BY JUROR NO. 136, CAROL K. FROM-HERZ:
I don’t know. I don’t think it would. No.
BY THE COURT:
The important thing is that you can set that aside what happened to you personally or someone close to you—
BY JUROR NO. 136, CAROL K. FROM-HERZ:
Right.
BY THE COURT:
—and just be able to judge this case on its own merits. Do you think you can do that?
BY JUROR NO. 136, CAROL K. FROM-HERZ:
Uh-huh.
BY THE COURT:
Okay.
[Tr. 3-4]

Upon further examination by defense counsel, the juror made the following statements:

BY MR. KRASNOFF:
Because of the fact that your close friend’s daughter has been raped and the perpetrator in that particular instance was black, would that affect your thinking in any way in regards to this case?
BY JUROR NO. 136, CAROL K. FROM-HERZ:
No, I don’t think so.
BY MR. KRASNOFF:
When you say you don’t think so, is there any doubt in your mind?
BY JUROR NO. 136, CAROL K. FROM-HERZ:
No. No.
[Tr. 4]

The voire dire examination, when considered in its entirety, supports the trial judge’s determination that this prospective juror could fairly and impartially serve. Therefore, this assignment of error is without merit.

Assignment of Error No. 3

In assignment of error Number 3, the defendant contends that the trial court erred in “admitting” evidence containing the results of the vaginal swab and smear. Defendant argues that the prosecution failed to connect the results of the evidence examined at the Coroner’s Office to the tests that were performed by Dr. Dean at Charity Hospital.

A continuous chain of custody is not essential for the admission of demonstrative evidence, provided it is more probable than not that the object introduced is the one related to the case. State v. Sharp, 414 So.2d 752 (La.1982). A lack of positive identification goes to the weight of the evidence, not to the question of admissibility. State v. Sharp, supra. Ultimately, connexity is a factual matter for determination by the trier of fact. State v. Sharp, supra.

In this ease, the State did not attempt to introduce the swab and smear into evidence. Two witnesses testified with regard to the test conducted on the victim after the rape.

Dr. Dean, the examining physician, testified that he administered the swab and smear test upon the victim. He left the vaginal swab and smear with the nurse in the examination room for transportation to the Coroner’s Office. The following morning Patricia Daniels, a medical technologist with the Coroner’s Office, found a bag in the locked freezer in her laboratory. The bag bore the name of the victim, the case number and date of the examination. She conducted her analysis on the contents of this bag and reported her findings at the trial.

Although we do not know who transported this item to the laboratory or why the name appearing on its label was that of a physician other than Dr. Dean, these factors would only affect the weight of the evidence. The evidence as a whole establishes that it is more probable than not that the object which was examined by Ms. Daniels was the original swab and smear secured by Dr. Dean from the victim in this case. Accordingly, the testimony elicited from Dr. Dean and Ms. Daniels was a relevant and material subject of inquiry and was properly admitted.

This assignment of error lacks merit.

Assignment of Error No. ⅛.

The defendant contends, by this assignment, that certain statements made by Cynthia Houston, the victim’s stepsister, were hearsay and inadmissible. In particular, his complaint is directed at Ms. Houston’s testimony concerning statements allegedly made by the victim concerning the incident of the rape.

Hearsay evidence is generally inadmissible unless it falls within one of the exceptions to the hearsay rule. R.S.15:434; 15:463. State v. Huizar, 414 So.2d 741 (La., 1982).

The statements of which this defendant complains are hearsay, as they were out of court, unsworn statements allegedly made by the victim and they were being offered as an assertion to show the truth of the matters contained therein. State v. Elzie, 351 So.2d 1174 (La., 1977). However, the courts of this state recognize an exception to the hearsay rule concerning the admission of early complaints of rape victims. State v. Middlebrook, 409 So.2d 588 (La., 1982). In Middlebrook, supra at 590, the Louisiana Supreme Court discussed this exception:

This court has long recognized an exception to the hearsay rule allowing admission of the early complaints of rape victims. At times, the court has characterized these as the ‘first complaints of rape victims’ constituting res gestae exceptions to the hearsay rule. See State v. Adams, 394 So.2d 1204 (La.1981); State v. Brown, 302 So.2d 290 (La.1974). In other cases, the court has referred to such statements simply as ‘early complaints of rape victims’ and ruled that they were admissable as such. See State v. Hatcher, 372 So.2d 1024 (La.1979); State v. Elzie, 351 So.2d 1174 (La.1977). When there is no unexplained lapse of time between the rape and the victim’s complaint, and when the utterance is spontaneous, the person to whom the complaint was made is allowed to repeat the complaint in court.

In this case, the victim, immediately upon her release from her assailant, ran home and while still visibly upset, related to her stepsister the facts of her rape. These spontaneous utterances, concerning the rape, made without any unexplained lapse of time between the incident and the statements, were properly admitted into evidence.

For these reasons, assignment of error number 4 lacks merit.

Assignment of Error Nos. 5 & 6

The defendant objected and assigned error to the trial court’s refusal to permit him to question the victim’s stepsister regarding the victim’s housemates and male visitors. The court sustained the state’s objection on the basis that the inquiries were not relevant.

Evidence in criminal cases is relevant if it tends to show the commission of an offense and the intent or if it tends to negate the commission of the offense and the intent. R.S. 15:441. State v. Huizar, supra. Likewise, evidence is relevant if it is used to explain a relevant fact or support an inference raised by such fact. R.S. 15:441. State v. Huizar, supra. Thus, there should be a logical or rational connection between the fact which is sought to be proven and the fact which is at issue in the case. State v. Whitmore, 353 So.2d 1286 (La., 1977).

The trial judge has wide discretion in determining questions of relevancy of evidence and his determination will not be overturned absent a clear abuse of discretion, particularly when such evidence pertains to the prior sexual relations of the rape victim. R.S. 15:498. See: State v. Naas, on rehearing, 409 So.2d 535 (La., 1981) cert. den. 457 U.S. 1119, 102 S.Ct. 2933, 73 L.Ed.2d 1332. Under the circumstances of this case the inquiries by the defendant concerning the existence of other sexual conduct by the victim was not a subject of proper inquiry and was irrelevant to the resolution of this case. The trial judge did not abuse his discretion in sustaining the State’s objections to such inquiries. For these reasons these assignments of error lack merit.

Assignment of Errors Nos. 8 & 9

By these assignments of error, the defendant complains of the content and scope of the prosecution’s closing arguments. In particular, the defendant complains that the prosecutor made comments during his rebuttal closing argument which were not confined to the evidence presented by the defense. Additionally he complains that the prosecutor made remarks which were prejudicial and inflammatory.

Closing arguments in criminal cases should be restricted to the evidence admitted, to the lack of evidence, to conclusions of fact that may be drawn therefrom and to the law applicable to the case. C.Cr.P. Art. 774. State v. Messer, 408 So.2d 1354 (La., 1982). The state’s rebuttal shall be confined to answering the argument of the defendant. C.Cr.P. Art. 774. State v. Prestridge, 399 So.2d 564 (La., 1981). Thus, a prosecutor should refrain from arguments which tend to divert the jury from its duty to decide the case on the evidence, by injecting issues broader than the guilt or innocence of the accused under the controlling law or by making predictions of the consequences of the jury’s verdict. State v. Messer, supra.

The trial judge has wide discretion in controlling the scope of such arguments. State v. Prestridge, supra. This court will not reverse a conviction on the basis of improper closing argument unless it is thoroughly convinced that the remarks influenced the jury and contributed to the verdict. State v. Dupre, 408 So.2d 1229 (La., 1982).

The defendant found the following statements by the'state objectionable in that they were beyond the scope of rebuttal argument:

I always say mothers have a Constitutional right to protect their children.
# jfc sjs ⅜ ⅝ ⅝
The Defense’s case is like that Hollywood set where you have a Western front, but there is no backing behind it. There is no substance. It’s a fake.
⅝ Jfc ⅝ sjs ⅝ ⅜

He also found the following statements inflamatory:

BY MR. KATZMAN:
Rape number two is what I entitle this half. The rape that occurred in this Courtroom. The lies that occurred in this Courtroom. Look what that victim had to go through. She is called an ex-lover. This is called the humiliated, the woman who is so infuriated, so angry — I wanted him to marry me.
# * * sjs 5⅜ k
The car, incidentally is a typical rapist’s car. It had no — well, had the controls of the locks on the door from the driver’s side. If you recall, [the victim] said he let her — at the end he let her out. He released some kind of latch.
# * >k * ⅜ *

We agree that the statements were improper and that they exceeded the bounds of proper closing and rebuttal argument, however, we are not thoroughly convinced that these remarks influenced the jury and contributed to the verdict. For this reason these assignments do not form a basis for reversal of the defendant’s conviction.

This assignment is without merit.

Assignments of Error Nos. 11 & 12

The defendant argues, by these assignments of error, that the State should have compelled the defendant to submit to blood and pubic hair test. We know of no authority which would compel the State to proceed in the manner suggested by the defendant and he has cited no authority for his proposition. The manner of prosecution is a matter which is left to the wide discretion of the prosecutor. C.Cr.P. Art. 61. These assignments lack merit.

Assignment of Error No. 13

The defendant contends, by this assignment, that the evidence in this case does not support a finding of guilty beyond a reasonable doubt.

The standard for review of the sufficiency of the evidence is whether a rational trier of fact, when viewing the evidence in the light most favorable to the prosecution could have found that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (U.S., 1979). State v. Edwards, 400 So.2d 1370 (La., 1981).

In this case the defendant was convicted of forcible rape. R.S. 14:42.1. That is, he committed a rape “where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim believes that such resistance would not prevent the rape.”

In this case the victim testified that she was taken by force into the car of the defendant. She was repeatedly threatened with loss of her life and was lead to believe that the defendant had a weapon which he kept under the front car seat. The defendant had vaginal sexual intercourse with the victim without her consent. This testimony was compatible with that of the lay witnesses who testified concerning the events immediately following the rape and with the testimony of the expert witnesses concerning the results of laboratory tests conducted upon certain specimens taken from the victim on the night of the rape.

Therefore, the totality of the evidence when viewed in the light most favorable to the prosecution satisfies this Court that any rational trier of fact could have found that the State proved the essential elements of the crime beyond a reasonable doubt.

For this reason, assignment of error Number 13 lacks merit.

Assignment of Error No. 10

The defendant contends, by this assignment of error that the trial court imposed an excessive sentence.

The conviction of the crime of forcible rape carries a sentence of not less than two (2) nor more than forty (40) years imprisonment, of which at least two (2) years of the sentence shall be imposed without benefit of probation, parole or suspension of sentence. In this case the trial judge ordered the defendant to serve thirty (30) years at hard labor and to pay court cost and if he should default on this payment, he was ordered to serve thirty (30) days in the parish jail.

The imposition of a sentence within statutory limit may violate a defendant’s constitutional rights against excessive punishment. La. Const. Art. 1 Section 20. State v. Sepulvado, 367 So.2d 762 (La., 1979). The courts must attempt to particularize the sentence to the offender. State v. Kersey, 406 So.2d 555 (La., 1981). Therefore, the trial judge is required to state for the record the considerations taken into account in imposing a particular sentence. State v. Simms, 410 So.2d 1040 (La., 1982). He should consider circumstances militating for incarceration and those mitigating against it. State v. Franks, 373 So.2d 1307 (La., 1979). cert. den. 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818.

Evidence presented at trial shows that Lewis used physical force in subduing his victim. He also bruised her shoulder in the struggle. Lewis threatened Ms. Jones with death if she fought back or screamed. Additionally, Lewis made motions under his seat apparently indicating to Ms. Jones that he had a weapon.

At the sentencing hearing the judge took into consideration the defendant’s age and the fact that this judge had previously sentenced this defendant for a conviction for aggravated rape. The judge found Lewis to be a potential risk to the community and that he was in need of correctional treatment or a custodial environment. The judge also found that any lesser sentence would deprecate from the seriousness of the defendant’s crime. Accordingly, our review of this matter convinces us that the defendant’s sentence is not excessive. Therefore, this assignment of error is without merit.

Finally, we have reviewed this case for errors patent on the face of the record, and we find that the trial judge failed to state for the record the length of time that the defendant’s sentence was to be served without benefit of parole, probation or suspension. (Errors Patent) C.Cr.P. Art. 920. (Sentencing) R.S. 14:42.1. It is apparent that at a minimum, two (2) years of the defendant’s sentence must be without benefit of parole, probation or suspension of sentence, it is also equally clear that up to forty (40) years at hard labor may be imposed without benefit of parole, probation or suspension of sentence. See: State v. Lewis, 412 So.2d 1353 (La.1982). When by law, a sentence, or a part thereof, must be imposed "without benefit of parole, probation or suspension of sentence”, the sentence is “unlawfully lenient” if it fails to specify these restrictions. See: State v. Telsee, 425 So.2d 1251 (La., 1983); but See State v. Napoli, 437 So.2d 868 (La., 1983), and State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983), writs granted in part and denied in part, 443 So.2d 1123 (La., 1983).

Accordingly, since this defendant was sentenced to thirty (30) years at hard labor, and no mention was made as to what amount of time was to be served without benefit of parole, probation or suspension of sentence, the sentence must be vacated and the case must be remanded to the district court for resentencing in accordance with the reasons expressed herein. See: State v. McCoy, 450 So.2d 690 (La.App., 4th Cir.), footnote 1.

For the reasons assigned the defendant’s conviction is affirmed, the sentence is vacated and the case is remanded to the district court for resentencing in accordance with the dictates of this opinion.

CONVICTION AFFIRMED, SENTENCE VACATED. CASE REMANDED FOR RESENTENCING.

      . No assignment of error No. 7 exist in this case.


author: CRAIN, Judge.

text:
    Ethel P. ANDERSON v. The POLICE JURY OF the PARISH OF EAST FELICIANA.
    No. 83 CA 0733.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Writ Denied Sept. 28, 1984.

      Richard H. Kilbourne, Clinton, for plaintiff-appellant.
    William E. Woodward, Asst. Dist. Atty., Clinton, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in a petitory action, finding that the Police Jury of East Feliciana Parish (Police Jury) had good title to a servitude for the establishment and maintenance of a public road on plaintiffs property.

FACTS

On October 5, 1971, James Anderson granted, in an authentic act filed in East Feliciana Parish, a servitude of passage to the public over part of his property for the establishment of a public road. That grant was conditioned upon the assumption by the Police Jury of the maintenance and policing of the road. The Police Jury assumed those obligations and accepted the servitude in the same act.

The Police Jury constructed a gravel road on the servitude and maintained the road to some extent over the next few years by gravelling and grading it periodically. The road was used by the public for some undetermined amount of time, until a gate was erected across its entrance. After public complaint, the gate was taken down and public use resumed, although no further work on the road was done by the Parish.

On August 3, 1981, at a meeting of the Police Jury, a motion was made and carried abandoning the parish right-of-way on the Anderson property. Jerry D. Bunch, a member of the Police Jury in 1981, testified at trial that prior to the August 3, 1981, meeting, Mrs. Ethel Anderson, widow of James Anderson, approached him about getting the road closed. Bunch stated that Mrs. Anderson represented to him that she owned all of the property that the road accessed, and based on her representations he suggested to the jury that the servitude be abandoned. Bunch also testified that he might have stated to the Police Jury at that time that the Police Jury had never done any work on the road in an effort to help Mrs. Anderson.

After the road was closed, the Police Jury immediately began to receive complaints from property owners who, due to the road’s closing, no longer had access to their property. In response to the numerous complaints, a motion was made and carried at the Police Jury meeting on October 5, 1981, to rescind the abandonment of the right-of-way on the Anderson property.

TRIAL COURT

Mrs. Anderson subsequently filed suit against the Police Jury on September 28, 1982, in the form of a possessory action. The Police Jury answered the suit and filed a reconventional demand rejecting Anderson’s demands and seeking to be recognized as the owner of the servitude by virtue of the donation from James Anderson.

Based on the allegations in the Police Jury’s reconventional demand, Anderson filed a motion and rule for judgment on the pleadings. On November 23, 1982, judgment was rendered on the face of the pleadings in Mrs. Anderson’s favor and against the Police Jury, holding that the Police Jury had converted the possessory action into a petitory action by confessing Anderson’s right to possession of the property in its pleadings. The judgment decreed that henceforth the suit would be conducted as a petitory action with the Police Jury as plaintiff and Anderson as the defendant. Anderson subsequently answered the reconventional demand generally denying the same and alleging that the Police Jury had revoked the servitude by an ordinance adopted at a meeting held August 3, 1981, and, in the same month, she had taken possession.

Trial was held, and judgment was rendered on March 30, 1983, in favor of the Police Jury on both the main demand as well as the reconventional demand, recognizing the Police Jury as legal owner of the servitude on Anderson’s property. That judgment was based on the trial judge’s findings, in his reasons for judgment, that the Police Jury’s actions purportedly abandoning the servitude on August 3, 1981, were induced by fraud on Anderson’s part and were therefore null and without effect.

Mrs. Anderson appeals the judgment of the trial court in the petitory action, specifying the following assignments of error:

(1) The trial court erred in rendering judgment in the petitory action, in favor of the Police Jury on the main demand (the possessory action), which, in effect, reversed the court’s previous judgment on the pleadings in Mrs. Anderson’s favor.
(2) The trial court erred in ruling that the Police Jury had “good title” to the servitude without requiring the Police Jury to comply with the title requirements of La.C.C.P. art. 3653 and La.C.C. art. 531.
(3) The trial court erred in basing its judgment in the petitory action entirely on its finding that the Police Jury had not abandoned the servitude.
(4) The trial court erred in ruling ex pro-prio motu in the petitory action that Mrs. Anderson acted fraudulently when no such issue had been raised in the pleadings.

Before the merits of appellant’s assignments of error can be discussed, we find it necessary to classify the type of dedication involved in this case — something which neither party nor the trial judge attempted to do.

CLASSIFICATION OF DEDICATION

In the case of Arkansas-Louisiana Gas Co. v. Parker Oil Co., 190 La. 957, 183 So. 229 (1938), the Louisiana Supreme Court concluded that there were only two types of dedication in Louisiana — statutory and common-law (informal) dedication. That there might be a third category of dedication, which has been referred to as formal non-statutory dedication, was raised in the case of Banta v. Federal Land Bank of New Orleans, 200 So.2d 107 (La.App. 1st Cir.1967), application denied, 251 La. 46, 202 So.2d 657 (1967). The court in Banta was concerned with the implication in Parker that a dedication not in substantial compliance with Act 134 of 1896 (the basis for statutory dedication in Louisiana, now La.R.S. 33:5051) amounted to a common-law dedication conveying only a servitude, not ownership, to the public, where the intent of the grantor was not clearly expressed. The court concluded that the fact that a dedication is not of the type contemplated by Act 134 of 1896 does not preclude other forms of dedication, such as that established by the filing of a plat, which would convey title in the dedicated land to the public. As was pointed out in Banta, this third category of dedication has been applied to dedications occurring prior to Act 134 of 1896, when there was no provision for statutory dedication. Richard v. City of New Orleans, 195 La. 898, 197 So. 594 (1940); Jaenke v. Taylor, 160 La. 109, 106 So. 711 (1926); Flournoy v. Breará, 116 La. 224, 40 So. 684 (1906).

Since the Banta ease, the jurisprudence has generally ignored the category of formal non-statutory dedication, preferring to cite Parker for the proposition that a dedication is either statutory (conveying ownership) or common-law (conveying only a servitude to the public). Becnel v. Citrus Lands of Louisiana, Inc., 429 So.2d 459 (La.App. 4th Cir.1983), writ denied, 437 So.2d 1147 (La.1983); Ross v. City of Covington, 271 So.2d 618 (La.App. 1st Cir. 1973), writ denied, 273 So.2d 844 (La.1973); Village of Folsom v. Alford, 204 So.2d 100 (La.App. 1st Cir.1967). The Third Circuit case of Garrett v. Pioneer Production Corporation, 378 So.2d 945 (La.App. 3rd Cir.1979) is an exception. In that case, the trial court found an implied dedication which did not divest ownership; however, in reaching that decision the court took the opportunity to discuss the alternative categories of dedication — statutory dedication and formal nonstatutory dedication. On writ of certiorari in Garrett, the Louisiana Supreme Court reversed the Third Circuit, holding that there was indeed substantial compliance with La.R.S. 33:5051 resulting in a statutory dedication divesting ownership. The Court did not reach the issue of non-statutory dedication, but mentioned in a footnote defendants’ argument that there was, in effect, a ‘formal’, non-statutory dedication.” Garrett v. Pioneer Production Corporation, 390 So.2d 851, 857-858 n. 6 (La.1980). The question surrounding the third category of dedication was left unanswered.

After extensive review of the jurisprudence and legal commentary on the subject [See, in particular, Comment, The Third Dimension of Dedication in Louisiana, 30 La.L.Rev. 583 (1970) ] we find that there are properly three distinct categories of dedication:

(1) statutory, which is accomplished when La.R.S. 33:5051 is substantially complied with. It conveys ownership to the public. Parker, 183 So. at 240.
(2) formal non-statutory, which is created whenever there exists some formal, express act by the owner which clearly shows an intent to dedicate. We hold that, absent a clear expression to the contrary, this dedication also conveys ownership and applies to the situation in which La.R.S. 33:5051 is not substantially complied with. See Banta, 200 So.2d at 112-3; cf. Parker, 183 So. at 240.
(3) informal, which would include those forms of dedication in which the law deems it necessary to infer an intent to dedicate from the owner’s actions. This creates only a servitude and acceptance by the public is necessary.

Clearly, the dedication involved in this case falls into the second category. It is unnecessary for us, however, to classify the dedication as being one which transfers ownership or only a servitude since for our purposes it is necessary only to determine that the dedication is a formal dedication for us to establish the proper procedural framework.

BURDEN IN PROVING OWNERSHIP OF PUBLIC THINGS

Mrs. Anderson at some point in time erected a fence across the road in question. She later instituted a possessory action against the Police Jury alleging that she had fulfilled the requirements of La.C.C.P. art. 8658. The Police Jury in its answer admitted Mrs. Anderson’s possession and asserted its ownership of the servitude, converting the possessory action into a pet-itory action. La.C.C.P. art. 3657. In appellant’s first assignment of error, she complains that the portion of the judgment in the petitory action concerning possession was in error. That judgment reads in pertinent part:

I. On the main demand, there be judgment rendered in favor of the defendant, the Police Jury of East Feliciana, and against the plaintiff, Ethel P. Anderson, rejecting the latter’s demands.

Counsel for the Police Jury admits in his trial brief that this part of the judgment was submitted by counsel in error and inadvertently signed by the trial judge. As such, counsel concedes and urges that this portion of the judgment be deleted.

Under La.C.C.P. art. 3657, when the defendant in a possessory action asserts title in himself, he judicially confesses the possession of the plaintiff. The issue of possession is then final. Chancey v. Franklin, 216 So.2d 920 (La.App. 1st Cir. 1968).

Obviously, that part of the petitory action judgment rendering judgment in favor of the Police Jury on the main demand — the possessory action — was in error and that judgment should be amended, deleting that section. The original judgment on the pleadings in favor of Mrs. Anderson, recognizing her possession, was a final judgment. Chancey, 216 So.2d at 922.

After the issue of possession was settled, the burden then shifted to the plaintiff in the petitory action (the Police Jury) to prove ownership. The Police Jury sufficiently proved ownership of the servitude by placing the formal act of dedication executed by James Anderson into the record, which established that the road was a public thing under La.C.C. art. 450. The same act established that James Anderson was the common author in title as required by La.C.C.P. art. 3653. Once that was accomplished, the burden shifted to Mrs. Anderson to prove that a valid revocation of the dedication had taken place divesting the Police Jury of ownership and rendering the road no longer a public thing.

When ownership of a roadway is conveyed to the public by a formal dedication, any revocation of the dedication must necessarily come under La.R.S. 48:701, which reads:

The parish governing authorities and municipal corporations of the state, except the parish of Orleans, may revoke and set aside the dedication of all roads, streets, and alleyways laid out and dedicated to public use within their respective limits, when the roads, streets, and alleyways have been abandoned or are no longer needed for public purposes.
Upon such revocation, all of the soil covered by and embraced in the roads, streets, or alleyways up to the center line thereof, shall revert to the then present owner or owners of the land contiguous thereto.
Nothing in this Section shall be construed as repealing any of the provisions of special statutes or charters of incorporated municipalities granting the right to close or alter roads or streets. (Our emphasis).

We now hold that even in a situation where only a servitude over a roadway is granted by a formal dedication, the jurisprudence interpreting La.R.S. 48:701 is applicable in determining whether there has been a valid revocation of that dedication.

After review of the record, we find that Mrs. Anderson failed to show a valid revocation of the dedication. There is no evidence that the road had been abandoned or was no longer needed for public purposes. On the contrary, the record indicates that the road was maintained up until the point Mrs. Anderson took possession by placing a fence across it. Apparently, the road was still needed for public purposes; Jerry Bunch testified that immediately after the so-called revocation, landowners began to call and complain, claiming they used the road to access their property. Therefore, by not meeting the requirements of revocation of a formal dedication, the Police Jury’s actions in the meeting purporting to abandon the road were arbitrary and capricious and should have no effect. See Caz-Perk Realty, Inc. v. Police Jury of Parish of East Baton Rouge, 213 La. 935, 35 So.2d 860 (1948); Torrance v. Caddo Parish Police Jury, 119 So.2d 617 (La.App. 2d Cir.1960).

There having been no valid revocation, we find that the trial judge was correct in his holding that the Police Jury had carried its burden of proving good title, at least to a servitude to the road. However, we base our opinion on non-compliance with the requirements for revocation of a formal dedication rather than on any “fraud” on Mrs. Anderson’s part which the trial judge found. Fraud must always be alleged with particularity and proved. La. C.C.P. art. 856, Ray’s Appliance and Air Conditioning Service, Inc. v. K & D Enterprises, Inc., 350 So.2d 228 (La.App. 3rd Cir.1977), writ denied, 352 So.2d 1032 (1977). Fraud was not pled in this case, and therefore should not have been considered.

For the foregoing reasons, we affirm that part of the judgment of the trial court finding the Police Jury has good title to at least a servitude on the property in question. We reverse that part of the judgment in the petitory action finding the Police Jury in possession. All costs are assigned to appellant.

AFFIRMED IN PART, REVERSED IN PART.

      . La.R.S. 33:5051 reads:
      Whenever the owner of any real estate desires to lay off the same into squares or lots with streets or alleys between the squares or lots and with the intention of selling or offering for sale any of the squares or lots, he shall, before selling any square or lot or any portion of same, cause the real estate to be surveyed and platted or subdivided by a licensed surveyor or civil engineer into lots or blocks, or both, each designated by number, and set stakes, which shall be permanent in nature, at all of the corners of every lot and block thereof, properly marked so as to designate the correct number of each lot and block; write the legal description of the land on the plat or map, and cause to be made and filed in the office of the keeper of notarial records of the parish wherein the property is situated and copied into the conveyance record of such parish, and a duplicate thereof filed with the assessor of the parish a correct map of the real estate so divided, which map shall contain the following:
      (1) The section, township, and range in which such real estate or subdivision thereof lies according to government survey.
      (2) The number of squares by numerals from 1 up, and the dimensions of each square in feet and inches.
      (3) The number of each lot or subdivision of a square and its dimensions in feet and inches.
      (4) The name of each street and alley and its length and width in feet and inches.
      (5) The name or number of each square or plat dedicated to public use.

        (6) A certificate of the parish surveyor or any other licensed surveyor or civil engineer of this state approving said map and stating that the same is in accordance with the provisions of this Section and with the laws and ordinances of the parish in which the property is situated.
      (7) A formal dedication made by the owner or owners of the property or their duly authorized agent of all the streets, alleys and public squares or plats shown on the map to public use.

      . We note that in A. Yiannopoulos, Property Secs. 61-66 in 2 Louisiana Civil Law Treatise 186-201 (2nd ed. 1980), Professor Yiannopoulos divides informal dedication into two separate categories — tacit dedication and implied dedication — resulting in four classifications, instead of three.

      . At this point, we note that there is serious question as to whether a private individual may bring a possessory action against the state in regard to a public thing. See Symeonides, Developments in the Law-Property, 44 L.La.Rev. 505, 511. However, we do not reach that issue in this case, since the Police Jury acquiesced in Mrs. Anderson’s possession.

      . But cf. footnote 2.

      . La.C.C. art. 450 reads:
      Public things are owned by the state or its political subdivisions in their capacity as public persons.
      Public things that belong to the state are such as running waters, the waters and bottoms of natural navigable water bodies, the territorial sea, and the seashore.
      Public things that may belong to political subdivisions of the state are such as streets and public squares.

      .La.C.C.P. art. 3653 reads:
      To obtain a judgment recognizing his ownership of immovable property or real right therein, the plaintiff in a petitory action shall:
      (1) Prove that he has acquired ownership from a previous owner or by acquisitive prescription, if the court finds that the defendant is in possession thereof; or
      (2) Prove a better title thereto than the defendant, if the court finds that the latter is not in possession thereof.
      When the titles of the parties are traced to a common author, he is presumed to be the previous owner.
      The act of dedication in this case stated that James Anderson, “married to and living with Ethel Poston Anderson”, was the owner of the property at the time of dedication. Therefore, James Anderson must be the common author in title of Ethel P. Anderson and the Police Jury. James Anderson is then presumed to be the previous owner and Mrs. Anderson cannot assail the title of the Police Jury beyond that point. La.C.C. art. 532, La.C.C.P. art. 3653; Henderson v. Henderson, 8 So.2d 133 (La.App. 1933); Peoples v. Guidry, 391 So.2d 596 (La.App. 3rd Cir.1980), writ not considered, 395 So.2d 1365 (La.1981.)

      . For the record, we point out that in Todd v. State of Louisiana, et al. (La.1983) (No. 82-C-2915, November 28, 1983), the Court pretermit-ted consideration of the nature of the burden of proof the state would have in a petitory action. A rehearing was granted on January 6, 1984, in Todd, which is still pending.