author: LEMMON, Justice. WATSON, Justice, PER CURIAM.

text:
    Kathleen Dupre DUSENBERY, et al. v. McMoRAN EXPLORATION COMPANY, et al.
    No. 83-C-1681.
    Supreme Court of Louisiana.
    Oct. 15, 1984.
    Rehearing Denied Dec. 6, 1984.

      Dean A. Sutherland, S. Daniel Meeks, Hebert & Abbott, for applicant.
    Grady C. Weeks, Authement, Weeks & Larke, Houma, John Blackwell, Gibbens & Blackwell, Richard N. Dicharry, Margot Mazeau, Michael Bagot, Jr., Phelps, Dunbar, Marks, Claverie & Sims, E. Phelps Gay, Robert E. Peyton, Ghristovich & Kearney, New Orleans, John K. Hill, Lafayette, Phillip J. McMahon, McMahon, McCollam & Hargis, Houma, John J. McGuckin, Jr., John H. Musser, IV, Weg-mann, Longenecker & Muser, Michael J. Maginnis, McGlinchey, Stafford & Mintz, New Orleans, for respondents.
   LEMMON, Justice.

We granted certiorari in this wrongful death action solely to review the lower courts’ denial of an incidental demand by McMoRan Exploration Company/Burmont Company, the joint venture which owned the oil well on which John Dusenbery was killed in a pressure explosion, for indemnity from Hart, Inc., the oilfield contractor whose employees negligently welded a nipple in the well’s pressure system which was lighter than the nipple required by the specification. We now reverse, holding that McMoRan/Burmont, although solidarily liable to plaintiff as owner of the well which contained an unreasonably dangerous condition, is entitled to full indemnity against Hart, who created the unreasonably dangerous condition, which McMo-Ran/Burmont could not detect by visual inspection and of which McMoRan/Bur-mont had no actual knowledge.

I.

Dusenbery was an employee of Pel-Tex Oil Company, who had been hired by McMoRan/Burmont to drill and operate the well. During the operation, Pel-Tex contracted with Hart for Hart to perform the production hook-up according to Pel-Tex’s specifications, which included the use of Schedule 80 nipples in the pressure system.

The pressure explosion occurred while Dusenberry was cleaning the flow lines on the well. In the cleaning process, called “pigging”, the well pressure is turned off, and a polyurethane object, called a pig, is inserted into the pipeline. The pressure is then turned back on, and the pig is forced through the pipeline to the next well, removing the built-up paraffin residue as it travels along. The explosion occurred after Dusenbery had inserted the pig and turned the pressure back on, and Dusen-bery was struck in the head by a flying object propelled by the blowout. Subsequent investigation determined that the failure occurred where Hart had used a Schedule 40 nipple in the system instead of the heavier Schedule 80 nipple required by the specifications.

The trial court found that Hart and McMoRan/Burmont were solidarily liable to plaintiffs, Hart on the basis of negligence and McMoRan/Burmont on the basis of strict liability. Because the liability of each defendant was founded on separate legal bases, the court refused McMo-Ran/Burmont’s demand for indemnity against Hart. The appellate court affirmed, reasoning that McMoRan/Burmont was not entitled to indemnity because its liability was not vicarious. 433 So.2d 268. We granted the application for review limited solely to that issue. 441 So.2d 208.

II.

The court of appeal erred in restricting indemnity to cases of vicarious liability. Indemnity is available in some (but not all) cases of strict liability. To determine the availability of indemnity, it is necessary to examine the basis for imposition of strict liability in the particular case.

As owner of the well, McMo-Ran/Burmont was liable for Dusenbery’s injuries upon proof that the well presented an unreasonable risk of injury which resulted in plaintiffs’ damages. It was not necessary for plaintiffs to prove that McMo-Ran/Burmont either created the risk or knew of the danger and failed to remedy it. The owner of a structure has an absolute duty to discover its hazards, and he is held liable to an injured party upon proof that damages resulted from a hazard in the structure that he failed to discover and correct, whether or not the hazard was created by the owner and whether or not the hazard was visibly detectable. This liability is strict in the sense that it is imposed without the requirement of proof of negligence or actual fault. Olsen v. Shell Oil Co., 365 So.2d 1285 (La.1978). Rather, liability is imposed on the basis of the owner’s relationship with the damage-causing structure (the same basis upon which the duty to discover is imposed). Kent v. Gulf States Utilities, 418 So.2d 493 (La.1982).

Of course, the injured party may also recover his damages from the party who actually created the dangerous condition (whether or not that party is the owner of the structure) or from a party who knew of the dangerous condition and had a duty to correct it but failed to do so. Liability in such an instance is imposed on the basis of negligence or actual fault.

The indemnification claim is based not on the relationship between the owner of the structure and the injured party, but upon the relationship between the owner and the party who actually created the dangerous condition in the structure. When liability to the injured party is imposed on one party on the basis of strict liability only and on a second party on the basis of negligence or actual fault, the. strict liability defendant may recover full indemnity by incidental demand against the party actually at fault. Appalachian Corp. v. Brooklyn Cooperage Co., 151 La. 41, 91 So. 539 (1922). While both defendants are liable to the injured party, the defendant who is liable only as the owner of the unreasonably dangerous structure should be made whole by the defendant who actually caused the unreasonably dangerous condition for which the owner is strictly liable. As between the two defendants, ultimate responsibility rests with the party who was actually at fault, and the fact that the law imposed liability on the owner to the injured party does not detract from the owner’s right to indemnification against the party who actually created the dangerous condition. The defendant whose actual fault has been proved by the claimant on the principal demand may prevail on the strict liability defendant’s incidental demand for indemnification only by proving affirmatively that the strict liability defendant was guilty of concurrent fault.

In the Appalachian ease, a night watchman was injured by a falling door two days after Appalachian purchased a warehouse, but while the previous owner was still in possession. Having been cast for damages and having paid the judgment, Appalachian sought indemnity from the previous owner, who filed an exception of no cause of action. This court held that a party only technically at fault, because of a failure to perform some legal duty, could recover indemnity from the party whose negligence actually caused the damage. The court reasoned that the previous owner (according to the facts alleged in the petition) was negligent for having created the situation which brought about the injury and that the new owner, not yet having taken possession, did not have knowledge of the defect or the opportunity to remedy it. Accordingly, the court held that Appalachian had stated a cause of action for indemnification.

This court recently reiterated the Appalachian doctrine in Narcise v. Illinois Central Gulf Railroad, 427 So.2d 1192 (La. 1983). In Narcise, defendant railroad, which had been held liable to plaintiff under the FELA, sought indemnification from the manufacturer of the defective equipment that caused plaintiffs injuries. Answering questions certified to us from the United States Court of Appeals for the Fifth Circuit, we held that the railroad (who was the lessee of the defective equipment) and the equipment manufacturer could be solidary obligors to the injured party, but noted that the railroad’s third party demand stated a claim for “relief by way of contribution or possibly by way of indemnification, depending on the jury’s fault weighing process”. 427 So.2d at 1196. The fact that the railroad’s liability to plaintiff was based on FELA and the manufacturer’s liability to plaintiff was based on general tort law did not change the rule of Appalachian that indemnification is allowed between solidary debtors when one party is liable only on the basis of strict liability for an undiscovered dangerous condition of the owned structure while the other is liable for actually creating the unreasonably dangerous condition.

III.

In the present case, McMo-Ran/Burmont was liable to the injured party (just as the new owner was in the Appalachian case) not because of any “negligence on its part, independently of or in combination with [Hart], but because of the ownership of the [structure] and its legal duty to keep the [structure] in safe condition”. 91 So. at 542. Hart was liable, on the other hand, because it actually created the hazard by fabricating the well with a substandard launching system. Because Hart was actually negligent and McMo-Ran/Burmont was only liable on the basis of strict liability as the owner of the well, McMoRan/Burmont is entitled to recover indemnity from Hart, unless Hart proved that McMoRan/Burmont was also actually negligent. Upon such proof, McMo-Ran/Burmont’s incidental demand would be limited to contribution.

Hart points out that the trial court in reasons for judgment stated that “employment of the Schedule 40 nipple, in combination with the lack of support of the weight of the launching system hanging from the Nipple, ultimately caused the defective Schedule 40 Nipple to fail”. (Emphasis supplied.) Hart therefore argues that the trial court found MeMoRan/Bur-mont was concurrently negligent in failing to provide adequate support for the launching system and that this failure was a concurrent cause of the accident.

The trial court’s statement is not tantamount to a finding of negligence on the part of McMoRan/Burmont. The trial court expressly held McMoRan/Burmont liable under strict liability and never reached the question of negligence.

After a thorough review of the record, we conclude that Hart failed to prove a basis for holding McMoRan/Bur-mont liable in negligence. The trial court relied heavily on the testimony of Dr. Courtney Busch, an expert in metallurgy and mechanical engineering. Dr. Busch opined that the nipple would not have failed if Hart had used a Schedule 80 nipple as specified, and the trial judge found that a Schedule 80 nipple “would have been sufficient to hold”. Therefore, since the use of a Schedule 80 nipple would have prevented the blowout, the improper use of a Schedule 40 nipple was a cause-in-fact of the accident. On the other hand, Hart failed to prove that greater support for the launching system would have prevented the accident. Moreover, while a competent welder should have noticed that the lighter nipple was being welded to a heavier-walled flange, the defect of inadequate thickness could not be detected visually once the lighter nipple was installed. We therefore conclude that Hart failed to prove McMoRan/Burmont was negligent or actually at fault with regard to the use of the Schedule 40 nipple which caused this accident.

Accordingly, the judgments of the lower courts are reversed in part, and judgment is rendered in favor of McMoRan/Burmont on its third party demand against Hart for full indemnity.

DIXON, C.J., and MARCUS and DENNIS, JJ., concur.

WATSON, J., dissents and assigns reasons.

WATSON, Justice,

dissenting.

The Schedule 40 nipple had been a part of Burmont/McMoRan’s well for six years prior to the fatal accident. It is extremely difficult to justify complete exoneration of a well owner having complete custody and control for a long period of time.

There is evidence that Burmont/McMo-Ran failed to perform ordinary preventative maintenance on Well B-5D that could have revealed the problem with the nipple. Burmont/McMoRan compounded the problem by adding the paraffin scraper which put additional weight on the Schedule 40 nipple and thereby put too much stress upon the launch system.

Because of the extra weight, along with the undetected inadequate nipple, Bur-mont/McMoRan should share responsibility for the death of John Dusenbery with Hart, Inc., and is not entitled to indemnity since it was actually negligent and not just strictly liable.

Therefore, I respectfully dissent.

On Application for Rehearing

PER CURIAM.

On application for rehearing, Hart complains that our original opinion places the burden on the third party defendant to defeat the incidental demand by proving negligence on the part of the third party plaintiff. Hart argues that the burden of proof should be on the party seeking relief by means of the third party demand.

When two defendants are held solidarily liable to the plaintiff in this type of proceeding, contribution among solidary obli-gors is the rule, in the absence of other evidence. However, the evidence presented by the plaintiff in the present case established that Hart was negligent, while not showing any negligence on the part of McMoRan/Burmont. Thus, when plaintiff rested, the evidence entitled McMoRan/ Burmont to a judgment on its third party demand for indemnity, and it was up to Hart to overcome McMoRan/Burmont’s entitlement to indemnity by presenting evidence of McMoRan/Burmont’s independent negligence.

This court’s original opinion did not place any burden of proof on Hart. Rather, our opinion simply placed on Hart the burden to proceed with the evidence, at the point that the evidence showed negligence only on Hart’s part.

WATSON, J., would grant.

      . Indeed, indemnity may not be available at all in many cases of vicarious liability. It is doubtful that indemnity would be allowed to an employer against an employee for simple negligence, since such recovery is contrary to the very purpose of imposing vicarious liability on an employer who benefits from the services of the employee in the course of his employment.

      . The negligence or actual fault of a third party may entitle the owner to full indemnity as between the defendants (or possibly even to exoneration from the injured party’s claim for damages, if the third party is a stranger to the owner rather than a person acting with the owner's consent in the performance of the owner’s non-delegable duty to keep the structure in repair).

      . This is not to say that indemnity is available in every case in which there is one strict liability defendant and one negligent defendant. Indemnity is available only when, as in the present case, the strict liability defendant is liable to the injured party on the basis of responsibility, imposed without proof of negligence, for an unreasonably dangerous condition which the negligent defendant actually created and which the strict liability defendant neither concurrently caused nor had an opportunity to actually discover and remedy.

      .This case is distinguishable from Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980), in which the operator of a department store that contained an escalator with an unreasonably dangerous condition was denied indemnity against the elevator manufacturer. The court held that the evidence did not establish "greater fault” on the part of the manufacturer, since both parties were aware of the risks which caused the injury and both failed to provide a warning.

      . With regard to the contribution versus indemnity issue, this court further noted:
      "The legislative adoption of a comparative fault system, which requires that the fault of all parties be quantified, possibly will do away to a large extent with the necessity of distinguishing between contribution and indemnity among solidary tort obligors." 427 So.2d at 1196, n. 5.

      . This rule is followed in other jurisdictions. See J. Dooley, Modern Tort Law §§ 26.07, 26.10 (1982); W. Prosser, Law of Torts § 51 (1971).


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Leander H. PEREZ, Jr., and Eugene E. Leon, Jr.
    No. 84-KK-0743.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re State of Louisiana, applying for writ of certiorari, mandamus and prohibition, Court of Appeal, Fourth Circuit, Nos. K-1285 and K-1306; 25th Judicial District Court, Plaquemines Parish, No. 68774.

Prior report: 450 So.2d 1324.

Granted.


text:
    David GRIFFIN, Thelma Griffin Battley, John Griffin and Daisy Griffin v. SUCCESSION OF Velma King BRANCH Through Johnny SMITH, Executor.
    No. 84-C-1398.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Griffin, David et al., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0446; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 254278.

Prior report: 452 So.2d 344.

Granted.


text:
    Roy GIROIR, Individually and as Administrator of the Estate of Earline Giroir v. SOUTH LOUISIANA MEDICAL CENTER, DIVISION OF HOSPITALS, Louisiana Health and Human Resources Administration, State of Louisiana, David Makey, M.D., E. Helm, M.D. and I. Bankston, M.D.
    No. 84-C-1394.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re South La. Medical Ctr. et al., Louisiana, State of, Makey, David M.D., Health & Human Res. Admin., Helm, E. M.D., Bankston, I. M.D., applying for writ of certiorari to the Court of Appeal, First Circuit, No. 83-CA-0773; Parish of Terre-bonne, 32nd Judicial District Court, Div. “D”, No. 64117.

Prior report: 453 So.2d 949.

Granted particularly for consideration of Assignment of Error number 2.


text:
    Roy GIROIR, Rickey James Giroir and Lark Giroir Pitre v. SOUTH LOUISIANA MEDICAL CENTER, DIVISION OF HOSPITALS, Louisiana Health and Human Resources Administration, State of Louisiana, David Makey, M.D., E. Helm, M.D. and I. Bankston, M.D.
    No. 84-C-1441.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Giroir, Rickey James, Pitre, Lark Giroir, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0773; Parish of Terre-bonne, 32nd Judicial District Court, Div. “D”, No. 64117.

Prior report: 463 So.2d 949.

Granted particularly for consideration of Assignment of Error number 2.


text:
    STATE of Louisiana ex rel. Roderick WILSON v. Hon. Dennis J. WALDRON, Criminal District Court, Sec. “F”, Parish of Orleans.
    No. 83-KH-2084.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re State ex rel. Roderick Wilson, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 249-461.

Granted. The trial court is ordered to furnish relator with a transcript of his Boy-kin proceeding; otherwise the writ is denied.


text:
    Dale GAUDET, Individually and as Natural Tutor of His Minor Son, Glenn Gaudet v. G.D.C., INC., et al.
    No. 84-C-1393.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Gaudet, Dale, Indiv. etc., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0715; Parish of East Baton Rouge, 19th Judicial District Court, Div. “F”, No. 208617.

Prior report: 451 So.2d 158.

Granted. Remanded to Court of Appeal to reconsider the judgment of the trial court after supplementing the record as needed.


text:
    STATE of Louisiana v. Roray JENKINS.
    No. 84-K-1475.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Jenkins, Roray, applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. KA-1742; Parish of Orleans, Criminal District Court, Div. “D”, No. 295750.

Prior report: 454 So.2d 282.

Granted. Sentence set aside. Case remanded to the district court for compliance with La.Code Criminal P. art. 894.1; otherwise, denied.

LEMMON, J., concurs. The trial judge’s reference to a “previous armed robbery” is unclear.


text:
    GAYLORD BROADCASTING COMPANY INC. v. The SACKETT GROUP, INC., Richard David Sackett, and Sackett & Associates, Inc., et al.
    No. 84-CC-1505.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Gaylord Broadcasting Co. Inc., applying for remedial writ to the Court of Appeal, Fourth Circuit, No. C 2606; Parish of Orleans, Civil District Court, Div. “E”, No. 82-6214.

Granted. The judgment of the Court of Appeal is reversed and judgment of the trial court is reinstated.


text:
    STATE ex rel. James W. SIMMONS v. STATE of Louisiana, Judge Frank Shea, Section “G”, Criminal District Court.
    No. 84-KH-1748.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
    Writ Granted Jan. 25,1985.
   In re Simmons, James W., applying for writ of review, Parish of Orleans, Criminal District Court, Div. “G", No. 267-071.

Granted and transferred to the district court for its consideration and disposition within 60 days of the date of this order.


text:
    LOUISIANA STATE BAR ASSOCIATION v. Roy L. PRICE.
    No. 84-B-1218.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Roy L. Price, applying for reconsideration of order of suspension, Disciplinary Proceedings, No. 7134-B.

Prior report: 456 So.2d 149.

Motion denied. Rehearing denied.

LEMMON, J., would grant the writ.

CALOGERO and WATSON, JJ., would grant applicant time to file a brief.


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION.
    No. 84-OB-1399.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Alex Chalmers Hope, Jr., applying for reconsideration of writ denial of September 14, 1984, 456 So.2d 161.

Denied.


text:
    STATE of Louisiana v. John Wayne SMITH.
    No. 84-K-1615.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Smith, John Wayne, applying for writ of certiorari to the Court of Appeal, Third Circuit, No. CR83-680; Parish of Acadia, 15th Judicial District Court, Div. “I”, Nos. 35177, 35183, 35189, 35195, 35180, 35186 and 35192.

Prior report: 446 So.2d 563.

Not considered. Not timely filed.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would deny the application.


text:
    STATE ex rel. Clifford DOLEMAN v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0923.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Clifford Doleman, applying for writs of habeas corpus, and/or post-eonviction relief from the Criminal District Court, Parish of Orleans, No. 275-550, Division “D”.

Upon relator’s request, application and supplement are dismissed without prejudice.


text:
    STATE of Louisiana ex rel. Woodrow ARTHUR, Jr. v. Ross MAGGIO, Warden, Louisiana State Penitentiary.
    No. 83-KH-1550.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Woodrow Arthur, applying for writ of certiorari, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 4-77-356, Section IV.

Denied.


text:
    STATE of Louisiana ex rel. Thomas H. MURPHY v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1688.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Thomas H. Murphy, applying for writ of certiorari, from Criminal District Court, Parish of Orleans, No. 84376.

Denied.


text:
    STATE of Louisiana ex rel., Raymond ROCHON v. CRIMINAL DISTRICT COURT, 15TH JUDICIAL DISTRICT COURT, PARISH OF ACADIA; Robert Cline, Assistant District Attorney, Parish of Acadia.
    No. 83-KH-1918.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Raymond Rochon, applying for writ of mandamus, Parish of Acadia, 15th Judicial District Court, No. 32-525.

Denied.


text:
    STATE of Louisiana, ex rel. Bob A. BAILEY, a/k/a Herman A. Lamb v. Donald R. GUILLORY, Warden, Wade Correctional Center.
    No. 83-KH-1928.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Bob A. Bailey, a/k/a Herman A. Lamb, applying for writs of mandamus, certiorari and habeas corpus, Criminal District Court, Parish of Orleans, No. 261-012.

Denied.


text:
    STATE of Louisiana v. Joe L. BATES.
    No. 83-KH-1941.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Joe L. Bates, applying for writs of certiorari and review, prohibition, mandamus, to the Twentieth Judicial District Court, Parish of East Feliciana, Nos. 11-78-1209 and 6-77-669.

Denied.


text:
    STATE of Louisiana, ex rel. Thomas L. JONES v. Alwine RAGLAND, Judge.
    No. 83-KH-1951.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Thomas L. Jones, applying for remedial writ, 6th Judicial District Court, Parish of East Carroll, No. 26627.

Denied.


text:
    STATE of Louisiana ex rel. Ernest DAVIS v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1952.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Ernest Davis, applying for writ of certiorari, prohibition, mandamus or habeas corpus from the Criminal District Court, Parish of Orleans, No. 274-353.

Denied.


text:
    STATE of Louisiana v. Lawrence E. GAINES.
    No. 83-KH-1979.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Lawrence E. Gaines, applying for remedial writ to the 22nd Judicial District Court, Parish of St. Tammany, Nos. 95656 and 93928.

Denied.


text:
    STATE of Louisiana, ex rel., Albert MALVO v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1988.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Albert Malvo, applying for remedial writs, Parish of Calcasieu, No. 58918.

Denied.


text:
    STATE of Louisiana ex rel. Willie L. THOMAS v. LOUISIANA STATE PENITENTIARY, Ross Maggio, Jr., Warden.
    No. 83-KH-2048.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re State ex rel. Willie L. Thomas, applying for writ of habeas corpus, to the 26th Judicial District Court, Parish of Bossier, No. 57-960.

Denied.


text:
    STATE of Louisiana v. Lester JACKSON.
    No. 83-KH-2055.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Lester Jackson, applying for remedial writs, Parish of Rapides, No. 120-123.

Denied.


text:
    STATE of Louisiana v. Irvin WINN.
    No. 83-KH-2071.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Irvin Winn, applying for remedial writ to the First Judicial District Court, No. 114346, Parish of Caddo.

Denied.


text:
    STATE of Louisiana ex rel. Drew ARNOLD v. Warden Ross MAGGIO, Louisiana State Penitentiary.
    No. 83-KH-2087.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Drew Arnold, applying for supervisory writs, to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 1-81-839.

Denied.


text:
    STATE of Louisiana v. Gleason SANCHEZ.
    No. 83-KH-2107.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Gleason Sanchez, applying for writs of certiorari, prohibition and mandamus, Parish of St. Tammany, No. 87141.

Denied.


text:
    STATE of Louisiana, ex rel., Charles J. KRAMER, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary, State of Louisiana.
    No. 83-KH-2108.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Charles J. Kramer, Jr., applying for writ of habeas corpus, Parish of Jefferson, No. 74-344.

Denied. Motion to suspend is denied. Writ is denied.


text:
    STATE of Louisiana, ex rel., Herbert BROWN v. Hon. Frank J. SHEA, Judge, Criminal District Court—Sec “G”, Parish of Orleans, State of Louisiana.
    No. 83-KH-2109.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Herbert Brown, applying for writ of certiorari or review, Parish of Orleans, No. 239-286.

Denied.


text:
    STATE of Louisiana ex rel. Frank Freddie MONROE v. John T. KING, In his Official Capacity as Secretary of the Louisiana Department of Corrections and Ross Maggio, Jr., Warden of the Louisiana State Penitentiary.
    No. 83-KH-2126
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Frank Freddie Monroe, applying for remedial writs to the Criminal District Court, Parish of Orleans, No. 241-128 and 244-336.

Denied.


text:
    STATE of Louisiana ex rel., Merlin RENARD, Jr. v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECT. G.
    No. 83-KH-2134.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Merlin Renard, Jr., applying for writ of habeas corpus, Criminal District Court, Parish of Orleans, No. 264-958, Sect. G.

Denied.


text:
    STATE of Louisiana ex rel., Andrew JOSEPH, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2194.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Andrew Joseph, Jr., applying for writs of certiorari, prohibition, mandamus and habeas corpus from the Criminal District Court, Parish of Orleans, No. 270-076.

Denied.


text:
    STATE of Louisiana, ex rel., Philip WASHINGTON v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-2196.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Philip Washington, applying for writ of certiorari, Parish of Orleans, No. 246-018.

Denied.


text:
    STATE of Louisiana ex rel. Robert Dale HICKS v. Mr. Ross MAGGIO, Jr., Warden, Mr. John M. Mamoulides, District Attorney.
    No. 83-KH-2198.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Robert Dale Hicks, applying for remedial writs to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 79-2495.

Denied.


text:
    STATE of Louisiana ex rel. Darryl THORNTON v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-2200.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Darryl Thornton, applying for writ of certiorari, prohibition and mandamus from the Criminal District Court, Parish of Orleans, No. 280-219.

Denied on showing made.


text:
    STATE of Louisiana ex rel. James HARVEY, Jr. v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-2201.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re James Harvey, Jr., applying for remedial writ from the 12th Judicial District Court, Parish of Avoyelles, No. 37598.

Denied.


text:
    STATE of Louisiana ex rel. Henry D. COTTON v. STATE of Louisiana.
    No. 83-KH-2223.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Henry D. Cotton, applying for writ of mandamus from the Fourteenth Judicial Court District, Parish of Calcasieu, No. 13260-79.

Denied.


text:
    STATE of Louisiana ex rel. Clarence WALKER v. Hon. Miriam G. WALTZER, Judge, Criminal District Court, Section “A”, Orleans Parish.
    No. 83-KH-2226.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Clarence Walker, applying for supervisory writs to Criminal District Court, Parish of Orleans, No. 254-458.

Denied.


text:
    STATE of Louisiana ex rel. Myrick M. HUTCHINSON v. Hon. Burl CAIN, Warden.
    No. 83-KH-2228.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Myrick M. Hutchinson, applying for remedial writ to the Third Circuit Court of Appeal, No. K83-676; 14th Judicial District Court, Parish of Calcasieu, No. 2384-82.

Denied.


text:
    STATE of Louisiana ex rel., Julian D. CHIASSON v. Hon. Thomas C. WICKER, Jr., Judge, Division “H”, 24th Judicial District Court, Parish of Jefferson.
    No. 83-KH-2486.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Julian E. Chiasson, applying for writ of certiorari and review from the Twenty-fourth Judicial District Court, Parish of Jefferson, No. 80-846. .

Denied.


text:
    STATE of Louisiana v. Floyd James GARRETT.
    No. 83-KH-2514.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Floyd James Garrett, applying for writ of mandamus, from the Twenty-seventh Judicial District Court, Parish of St. Landry, No. 32-890.

Denied.


text:
    STATE of Louisiana v. Joseph I. JINKS.
    No. 83-KH-2517.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Joseph I. Jinks, applying for writ of' certiorari, 22nd Judicial District Court, Parish of St. Tammany, No. 79693.

Denied.


text:
    Peter S. GIUFFRIA v. RED RIVER BARGE LINES, INC. and Elevating Boats, Inc.
    No. 84-C-1335.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Red River Barge Lines, Inc. and Elevating Boats, Inc., applying for writ of review to the Fourth Circuit Court of Appeal, No. CA 1640, from the Civil District Court, Parish of Orleans, No. 81-18399.

Prior report: 452 So.2d 793.

Denied.


text:
    Dallas J. THIBODEAUX v. AMERICAN LAND & EXPLORATION, INC., et al.
    No. 84-C-1360.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Dallas J. Thibodeaux, applying for writs of certiorari, review, prohibition and mandamus to the Third Circuit Court of Appeal, No. 83-681, from the Fifteenth Judicial District Court, Parish of Acadia, No. 49578, Section “G”.

Prior report: 450 So.2d 990.

Denied.

WATSON, J., would grant the writ.


text:
    Edmond MOUTON v. P.A.B., INC.
    No. 84-C-1366.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re P.A.B., Inc., applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-679; 15th Judicial District Court, Parish of Vermillion, Section “C”, No. 81-43511-C.

Prior report: 450 So.2d 410.

Denied.


text:
    HIGHLANDS INSURANCE COMPANY v. CITY OF LAFAYETTE, et al.
    No. 84-CC-1367.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Oil Center Realty Co., Inc., applying for writ of certiorari to the Fifteenth Judicial District Court, Parish of Lafayette, No. 69194, Section “K”; Third Circuit Court of Appeal, No. 84-248.

Prior report: 453 So.2d 608.

Denied.


text:
    STATE of Louisiana v. Lonnie R. SYKES.
    No. 84-KK-1368.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re State of Louisiana, applying for writ of review to the First Circuit Court of Appeal, No. KW-84/0760; 21st Judicial District Court, Parish of Tangipahoa, Section “E”, No. 46667.

Denied.


text:
    Norman BOUDREAUX, Jr. v. EXXON COMPANY, U.S.A.
    No. 84-C-1369.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Norman Boudreaux, Jr., applying for writ of review to the Third Circuit Court of Appeal, No. 83-171, from the Fifteenth Judicial District Court, Parish of Vermillion, No. 82-44311-E, Section “E”.

Prior report: 451 So.2d 85.

Denied.


text:
    Booker T. LOTT v. Roosevelt LANDOR and XYZ Insurance Co.
    No. 84-C-1385.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Public Safety, Louisiana Dept, of, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0879; Parish of St. Tammany,. 22nd Judicial District Court, Div. “F”, No. 70618.

Prior report: 452 So.2d 1266.

Denied.

DIXON, C.J., and MARCUS, J„ would grant the writ.


text:
    HUVAL TRACTOR, INC. v. Gilbert JOURNET.
    No. 84-C-1395.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Huval Tractor, Inc., applying for writ of certiorari to the Court of Appeal, Third Circuit, No. 83-695; Parish of St. Martin, 16th Judicial District Court, Div. “B”, No. 34667.

Prior report: 452 So.2d 373.

Denied.

DENNIS, J.,' would grant the writ.


text:
    Emma Viator REAUX, et al. v. IBERIA PARISH POLICE JURY.
    No. 84-C-1402.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Reaux, Emma Viator, et al., Reaux, • Harold A., Romero, Joseph C., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-728; Parish of Iberia, 16th Judicial District Court, Div. “C,” No. 44382.

Prior report: 454 So.2d 227.

Denied.


text:
    Frank CARTER v. The BELLE CHASSE STATE SCHOOL, The Department of Health and Human Resources, The State of Louisiana, and Rockwood Insurance Company.
    No. 84-C-1404.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Belle Chasse State School et al., Health & Human Res. Dept., Louisiana, State of, Rockwood Insurance Company, applying for writ of certiorari to the Court of Appeal, Fourth Circuit, No. CA-1562; Parish of Orleans, Civil District Court, Div. “C”, No. 80-1114.

Prior report: 451 So.2d 63.

Denied.


text:
    STATE of Louisiana v. Henry Gene SELF.
    No. 84-KK-1407.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Self, Henry Gene, applying for writ of certiorari, writ of review to the 30th Judicial District Court, No. 38412, Div. B, from the Third Circuit, Court of Appeal, No. K-84-620, Parish of Vernon.

Denied.

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


text:
    Warren Joseph LANDRY and Rodell Joseph Landry v. Charles BEAUGH, Jr.
    No. 84-C-1408.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Beaugh, Charles, Jr., applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 83-756; Parish of Calcasieu, 14th Judicial District Court, Div. “D,” No. 81-5615.

Prior report: 452 So.2d 400.

Denied.


text:
    FRANK L. BEIER RADIO, INC. v. Janel DUET, divorced wife of/and Roy P. Brown.
    No. 84-C-1410.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Beier, Frank L. Radio, Inc., Frank L. Beier Radio, applying for writ of certio-rari, writ of review to the Court of Appeal, Fifth Circuit, No. 83-CA-834; Parish of Jefferson, 24th Judicial District Court, Div. “0,” No. 237-651.

Prior report: 453 So.2d 656.

Denied.

LEMMON, J., would grant the writ.


text:
    Curtis KEELER v. John CANNON, III, and The City of New Orleans.
    No. 84-C-1411.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Cannon, John, III, et al., New Orleans, City of, applying for writ of certiora-ri, writ of review to the Court of Appeal, Fourth Circuit, No. CA-0717; Parish of Orleans, Civil District Court, Div. “J,” No. 81-2832.

Prior report: 450 So.2d 1342.

Denied.

MARCUS, J., would grant the writ.


text:
    Melvin ROBINSON v. STATE of Louisiana Through DEPARTMENT OF TRANSPORTATION AND DEVELOPMENT. John Dale WATKINS v. PATTERSON TRUCK LINE, INC., Melvin Robinson, National Union Fire Insurance Company, Department of Transportation and Development of the State of Louisiana and the State of Louisiana. Terri Rene CHAMPERS, Individually, and as Natural Tutrix of Her Minor Child, Andy Lee Champers v. PATTERSON TRUCK LINE, INC., Melvin Robinson, and State of Louisiana, Department of Transportation and Development, Secretary of Transportation and Development.
    No. 84-C-1413.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Louisiana Paving Co. Inc., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, Nos. 82-CA-0971, 82-CA-0971, 82-CA-0973; Parish of Terrebonne, 32nd Judicial District Court, Div. “C,” Nos. 60990, 61188, 63465.

Prior report: 454 So.2d 257.

Denied.

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


text:
    Ralph SHOOK v. CAMBRIDGE MUTUAL FIRE INSURANCE COMPANY.
    No. 84-C-1415.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Shook, Ralph, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0809; Parish of East Baton Rouge, 19th Judicial District Court, Div. “J,” No. 254582.

Prior report: 451 So.2d 1298.

Denied.


text:
    Susan Ann Wilson GAUDET v. Richard B. GAUDET, Jr.
    No. 84-C-1416.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Gaudet, Richard B., Jr., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. CA-84-0032; Parish of Lafourche, 17th Judicial District Court, Div. “C,” No. 35938.

Denied.

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


text:
    John Wayne COLLIER and Carmelite B. Collier v. Monty W. FOX, Jo Ann Brooks Fox, Donald W. Fox and Katherine W. Fox.
    No. 84-C-1417.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Collier, John Wayne, et ux., Collier, Carmelite B., applying for writ of certiora-ri, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0765; Parish of East Baton Rouge, 19th Judicial District Court, Div. “F,” No. 289775.

Prior report: 451 So.2d 169.

Denied.


text:
    George EAMES v. Herbert Orrin JAMES et al.
    No. 84-C-1420.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Eames, George, applying for writ of certiorari to the Court of Appeal, Third Circuit, No. 83-718; Parish of Concordia, 7th Judicial District Court, Div. “B”, No. 23141.

Prior report: 452 So.2d 384.

Denied.

DENNIS, J., would grant the writ.


text:
    Prince LEWIS v. EAST FELICIANA PARISH SCHOOL BOARD.
    No. 84-C-1422.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Lewis, Prince, applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0949; Parish of East Feliciana, 20th Judicial District Court, Div. “A”, No. A-13306.

Prior report: 452 So.2d 1275.

Denied.

BLANCHE, J., recused, having acted on case in another court.


text:
    CAJUN ELECTRIC POWER COOPERATIVE INC. et al. v. McNAMARA, Shirley Secretary of the Department of Revenue and Taxation, the State of Louisiana.
    No. 84-C-1423.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Cajun Elect. Power Coop, et al., applying for writ of certiorari to the Court of Appeal, First Circuit, No. 83-CA-0680; Parish of East Baton Rouge, 19th Judicial District Court, Div. “B”, No. 252476.

Prior report: 452 So.2d 212.

Denied.

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


text:
    Stephen S. WOOD v. Henry A. HAAS, et al.
    No. 84-C-1424.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Wood, Stephen S., applying for writ of certiorari to the Court of Appeal, First Circuit, No. 83-CA-0717; Parish of East Baton Rouge, 19th Judicial District Court, Div. “F”, No. 239667.

Prior report: 451 So.2d 160.

Denied.


text:
    Carlo J. CANOVA & Patrick W. Pendley v. STATE of Louisiana et al.
    No. 84-C-1435.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Canova, Carlo J., et al., Pendley, Patrick W., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-794; Parish of Iber-ville, 18th Judicial District Court, Div. “A”, No. 28591.

Prior report: 451 So.2d 1291.

Denied. The result is correct.


text:
    Danny Wayne LUMPKIN, Sr. and Winston Elaine Lumpkin v. STEVEN HOMES OF LEESVILLE, INC. and Mays Industries, Inc.
    No. 84-C-1436.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Mays Industries, Inc., applying for writ of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-769; Parish of Vernon, 30th Judicial District Court, No. 34714.

Denied.


text:
    Jessie L. HARRIS v. The BOARD OF SUPERVISORS, LOUISIANA STATE UNIVERSITY AGRICULTURAL AND MECHANICAL COLLEGE.
    No. 84-C-1437.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Harris, Jessie L., applying for writ . of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0797; Parish of East Baton Rouge, 19th Judicial District Court, Div. “I”, No. 229-601.

Prior report: 451 So.2d 1293.

Denied.


text:
    STATE of Louisiana v. Ruth ADDISON.
    No. 84-KK-1438.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Addison, Ruth, applying for writ of certiorari, remedial and supervisory writs to the 19th Judicial District Court, Parish of East Baton Rouge, No. 9-83-815, from the First Circuit Court of Appeal, No. KW-84-0860.

Denied.


text:
    Booker T. LOTT v. Roosevelt LANDOR, et al.
    No. 84-C-1439.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Lott, Booker T., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0879; Parish of St. Tammany, 22nd Judicial District Court, Div. “F”, No. 70618.

Prior report: 452 So.2d 1266.

Denied.


text:
    Dale GAUDET, Individually and as Natural Tutor of His Minor Son, Glenn Gaudet v. G.D.C., INC., et al.
    No. 84-C-1457.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re American Concrete Co., applying for writ of certiorari, writ of review to the Court of Appeal, First Circuit, No. 83-CA-0715; Parish of East Baton Rouge, 19th Judicial District Court, Div. “F”, No. 208617.

Prior report: 451 So.2d 158.

Denied. All rights reserved.


text:
    STATE of Louisiana v. Mark LATIOLAIS.
    No. 84-K-1553.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Latiolais, Mark, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. CR83-687; Parish of Lafayette, 15th Judicial District Court, Div. “F”, No. 46623. •

Prior report: 453 So.2d 1266.

Denied.


text:
    STATE ex rel. Reginald B. MORRISON v. C. Paul PHELPS, Secretary Department of Correction.
    No. 84-KH-1603.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Morrison, Reginald B., applying for writ of certiorari, Parish of East Baton Rouge, 19th Judicial District Court, Div. “C”, No. 5-74-1531.

Denied.


text:
    STATE of Louisiana v. Clarence ROBERSON.
    No. 84-K-1617.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Roberson, Clarence, applying for writ of certiorari, and supervisory to the Court of Appeal, Fourth Circuit» No. KA-1586; Parish of Orleans, Criminal District Court, Div. “F”, No. 292-420.

Prior report: 454 So.2d 343.

Denied.


text:
    STATE of Louisiana v. John F. PRICE.
    No. 84-K-1620.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Price, John F., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. KA-1697; Parish of Orleans, Criminal District Court, Div. “A”, No. 292-702.

Prior report: 454 So.2d 377.

Denied.


text:
    STATE of Louisiana v. Frank G. RUMORE.
    No. 84-KK-1628.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Rumore, Frank G., applying for writ of certiorari, writ of review, Parish of Jefferson, 24th Judicial District Court, Div. “N”, No. 84-550; to the Court of Appeal, Fifth Circuit, No. 84-K-452.

Denied.


text:
    STATE of Louisiana v. George WILLIAMS, Jr.
    No. 84-K-1638.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Williams, George, Jr., applying for supervisory writs to the Court of Appeal, Second Circuit, No. 16,377-KA; Parish of Morehouse, 4th Judicial District Court, Div. “D”, No. 82-1756A.

Prior report: 454 So.2d 1268.

Denied.


text:
    STATE of Louisiana v. Jimmy Ray COLLINSON.
    No. 84-K-1637.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Collinson, Jimmy Ray, applying for supervisory writs to the Court of Appeal, Second Circuit, Nos. 16,279-KA, 16,280-KA; Parish of Ouachita, 4th Judicial District Court, Div. “D”, Nos. 41081, 41259.

, Prior report: 455 So.2d 1298.

Denied.


text:
    STATE of Louisiana v. Thomas Lee WARD.
    No. 84-KH-1641.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Ward, Thomas Lee, applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “I,” No. 297-030.

Denied. Appeal pending. See C.Cr.P. art. 924. Claims of ineffective counsel may be presented by means of post conviction relief.


text:
    STATE of Louisiana v. Dowen CHELETTE.
    No. 84-K-1658.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Chelette, Dowen, applying for writ of review to the Court of Appeal, Third Circuit, No. CR-83932; Parish of Rapides, 9th Judicial District Court, Div. “B”, No. 206393.

Prior report: 453 So.2d 1282.

Denied.


text:
    STATE of Louisiana v. BRYAN, Jerome.
    No. 84-K-1661.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re State of Louisiana, applying for supervisory writs to the Court of Appeal, Third Circuit, No. CR-83-1004; Parish of Cameron, 38th Judicial District Court, Div. “ ”, No. 39071.

Prior report: 454 So.2d 1297.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. Claudell GRIFFIN.
    No. 84-K-1685.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Griffin, Claudell, applying for writ of certiorari to the Court of Appeal, Second Circuit, No. 16321-KA; Parish of DeSoto, 11th Judicial District Court, Div. “B”, No. 51435.

Prior report: 455 So.2d 681.

Denied.


text:
    ROBERT B. AIKENS-HOMART DEVELOPMENT COMPANY d/b/a Lafayette Associates v. Asia MINOR.
    No. 84-CC-1775.
    Supreme Court of Louisiana.
    Oct. 12, 1984.
   In re Minor, Asia, applying for writ of certiorari, writ of review, Parish of Lafayette, 15th Judicial District Court, Div. “F”, No. 84-3501-F; to the Court of Appeal, Third Circuit, No. 84-822.

Denied.


text:
    George LERAY v. Lloydell Iles MULLICAN and Commissioner of Elections For the State of Louisiana.
    No. 84-C-1810.
    Supreme Court of Louisiana.
    Oct. 17, 1984.
   In re Leray, George, applying for writ of certiorari, writ of review to the Court of Appeal, Third Circuit, No. 84-952; Parish of Beauregard, 36th Judicial District Court, Div. “ ”, No. C-84-779.

Prior report: 456 So.2d 1038.

Denied.

MARCUS, J., would grant the writ.


author: DIXON, C.J.,

text:
    Baptiste W. BRUNNER v. Judy Gerstner, wife of Baptiste W. BRUNNER.
    No. 84-CC-1840.
    Supreme Court of Louisiana.
    Oct. 22, 1984.
   In re Gerstner, Judy, applying for writ of certiorari, stay, Parish of Jefferson, 24th Judicial District Court, Div. “F”, No. 297-070; to the Court of Appeal, Fifth Circuit, No. 84-C-504.

DIXON, C.J.,

would deny the stay order (4:15 p.m.).

Stay order denied (4:30 p.m.). Relator made no showing that any proceedings in the district court are scheduled, or are likely to be scheduled in advance of this court’s ruling, in the normal course, on the merit of this application.


text:
    Willie J. SENEGAL v. Reta NORMAN.
    No. 84-CC-1818.
    Supreme Court of Louisiana.
    Oct. 18, 1984.
   In re Norman, Reta, applying for supervisory writ, Parish of Acadia, 15th Judicial District Court, Div. “K”, No. 54430; to the Court of Appeal, Third Circuit, No. 84-960.

Denied.


text:
    Clinton Danny HATHORNE v. SPORTMAN MOTEL, INC.
    No. 84-CC-1843.
    Supreme Court of Louisiana.
    Oct. 23, 1984.
   In re Sportman Motel, Inc., applying for supervisory writs and priority, Parish of Washington, 22nd Judicial District Court, Div. “E”, No. 50473; to the Court of Appeal, First Circuit, No. CW-841281.

Denied.


author: HALL, Judge.

text:
    Elizabeth Wreyford OLIVER and Stayton B. Oliver, Plaintiffs-Appellants, v. C.L. KENNINGTON, Jr., Defendant-Appellee.
    No. 16419-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 16,1984.

      Gahagan & Gahagan by Russell E. Gaha-gan, Natchitoches, for plaintiffs-appellants.
    Bethard & Davis by Robert E. Bethard, Coushatta, for defendant-appellee.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   HALL, Judge.

The plaintiffs, Elizabeth Wreyford Oliver and Stayton B. Oliver, filed this possessory action on April 12, 1983 against the defendant, C.L. Kennington, Jr., alleging that the defendant disturbed the plaintiffs’ possession of the SE/4 of the NW/4 of Sec. 7, T 13 N, R 8 W, Red River Parish, Louisiana, by selling certain timber contained in that tract. The defendant filed an answer and reconventional demand in which he admits the timber was cut and sold, with the proceeds going to him, but contends he is in possession of that portion of the tract from which the timber came and prays that his possession be recognized and maintained. Following trial, a judgment was rendered recognizing and maintaining defendant’s possession and ordering the plaintiffs to assert any adverse claim of ownership to the immovable property in dispute within 60 days or be thereafter precluded from doing so. The plaintiffs suspensively appealed. The defendant answered the appeal seeking to have the plaintiffs condemned to pay all costs of trial and appeal. The trial court assessed costs of trial equally between the parties.

On appeal, the plaintiffs contend the trial court erred in overruling their peremptory exception of no cause of action filed in response to the defendant’s reconventional demand and further erred in its determination that the defendant is in possession of the disputed area. We find the trial court correctly overruled the peremptory exception but erred in its determination regarding possession of the disputed area. Accordingly, we reverse and set aside the judgment rendered in favor of the defendant and render judgment in plaintiffs’ favor.

Applicable Law

The following provisions define and delimit the scope of a possessory action:

LSA-C.C.P. Art. 3655:

“The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted.”

LSA-C.C.P. Art. 3658:

“To maintain the possessory action the possessor must allege and prove that:
“(1) He had possession of the immovable property or real right therein at the time the disturbance occurred;
“(2) He and his ancestors in title had such possession quietly and without interruption for more than a year immediately prior to the disturbance, unless evicted by force or fraud;
“(3) The disturbance was one in fact or in law, as defined in Article 3659; and
“(4) The possessory action was instituted within a year of the disturbance.”

LSA-C.C.P. Art. 3660

“A person is in possession of immovable property or of a real right therein, within the intendment of the articles of this Chapter, when he has the corporeal possession thereof, or civil possession thereof preceded by corporeal possession by him or his ancestors in title, and possesses for himself, whether in good or bad faith, or even as a usurper....”

LSA-C.C.P. Art. 3661

“In the possessory action, the ownership or title of the parties to the immovable property or real right therein is not at issue.
“No evidence of ownership or title to the immovable property or real right therein shall be admitted except to prove:
“(1) The possession thereof by a party as owner;
“(2) The extent of the possession thereof by a party; or
“(3) The length of time in which a party and his ancestors in title have had possession thereof.”

A possessory action deals with the preservation or protection of the right of possession, which may be defined as the exercise of possession with respect to immovable property or a real right therein for a period of time in excess of one year, as opposed to mere possession, which may be defined as the exercise of authority over the thing at issue for a lesser period of time. LSA-C.C. Art. 3422 and comment (b) thereunder, effective January 1, 1983. Norton v. Addie, 337 So.2d 432 (La.1976); Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975); Hill v. Richey, 221 La. 402, 59 So.2d 434 (1952).

Particularly pertinent to the resolution of this conflict is the concept of constructive possession, which provides that one who possesses a part of an immovable by virtue of a title is deemed to possess the area contained within the limits of his title. LSA-C.C. Art. 3426, effective January 1, 1983. For further development or explanation of this concept, note especially comment (b) thereunder. In the absence of title, there is no constructive possession; one has possession only of the area he actually possesses. Article 3426, supra, and comment (d) thereunder.

Proof of constructive possession of immovable property or of a real right therein for a period in excess of one year entitles one to prevail in a possessory action unless the opponent proves acquisition of a right of possession with respect to the disputed area by adverse corporeal possession. Pitre v. Tenneco Oil Co., 385 So.2d 840 (La.App. 1st Cir.1980); Roy O. Martin Lumber Co., Inc. v. Lemoine, 381 So.2d 915 (La.App.3d Cir.1980); Theriot v. La-Terre Company, 256 So.2d 710 (La.App. 1st Cir.1971).

Peremptory Exception

In response to the defendant’s reconven-tional demand in this matter, the plaintiffs filed an exception of no cause of action grounded on the alleged failure by the defendant to plead his possession of the disputed property as owner for more than one year prior to the filing of the plaintiffs’ suit. This exception, which was filed on the day of trial, was overruled by the trial court. On appeal, the plaintiffs assert that the exception was improperly overruled and all evidence of the defendant’s possession as owner was improperly admitted.

In the reconventional demand, the defendant alleges that he and his father before him have possessed the property in dispute for many years prior to the institution of the plaintiffs’ action. The reconven-tional demand specifically refers to the alleged acts of possession by the defendant and his father and prays that the defendant’s right of possession be recognized. It is clear from a fair reading of the recon-ventional demand that the defendant has alleged his possession as owner for a period of time in excess of one year immediately preceding the plaintiff’s filing of the suit. Accordingly, the trial court correctly overruled the plaintiffs’ exception of no cause of action.

Possession

In 1913 the parents of plaintiff Mrs. Oliver acquired a 60-acre tract of land described as the SW/4 of the NW/4 and the W/2 of the SE/4 of the NW/4 of Section 7, T 13 N, R 8 W, Red River Parish. They lived in a home located in the southeast corner of this tract, and farmed the property.. In 1939 they obtained a warranty deed from a bank to the E/2 of the SE/4 of the NW/4. This 20-acre tract adjoined their homeplace on the east. The parents divorced, divided the property, and in 1953 Mrs. Oliver’s husband bought the SE/4 of the NW/4 from Mrs. Oliver’s mother. Mrs. Oliver’s father continued to live on the property for three or four years and then moved away. The homeplace was torn down.

The property in dispute consists of less than five acres located in the extreme southeast corner of the 20-acre tract purchased in 1939 by Mrs. Oliver’s parents. At the time the property was purchased, there was a Methodist church at the southeast corner of the tract. The church was moved within a few years thereafter. At one time the Boone Grange Lodge was located on a tract north and east of the church property. It apparently was moved or abandoned many years prior to 1939.

Defendant Kennington, and his father before him, apparently owns property to the east of the disputed property. Whether that property adjoins the disputed property is not shown by the record. Kenning-ton obtained a quitclaim deed to the church property in 1981.

The copy of a survey attached to this opinion as an appendix shows the property in dispute, which lies between points A, B, C, D, and A. Plaintiffs have clearly possessed the property west of the disputed property and have a deed translative of title which includes the disputed property. Defendant has clearly possessed that part of the Boone Grange Lodge property east of the disputed property. In dispute and at issue in this suit is possession of the “church property” and the wooded tract north thereof lying between the Holley Springs Branch and an old fence which runs north and south along the east line of the SE/4 of the NW/4 of Section 7. Acts of corporeal possession of the disputed property by either the plaintiffs or the defendant in recent years and particularly in the year prior to the disturbance in January or February 1983 have been minimal at best.

After acquisition of the 20-acre tract in 1939 plaintiffs’ parents went into physical possession of at least most of the tract as an addition to their homeplace, farming it, fencing it, cutting timber, and the like. There was testimony that plaintiffs’ father built the fence along the east line of the NW/4 of Section 7. In recent years plaintiffs have bush hogged the tract and maintained it as their own. Within the year preceding the disturbance by defendant, plaintiffs had the property surveyed and the boundaries were painted and marked on the ground. During that year the plaintiffs paid the taxes and granted an oil and gas lease. The testimony is confusing and uncertain, however, as to whether any of the acts of physical or corporeal possession were exercised on the disputed area. It is clear, nevertheless, that plaintiffs intended to retain possession of the entirety of the property contained within their deed description and that there was no intent to abandon possession of any portion of the property.

The plaintiffs have shown corporeal possession of most of the property described in their title and at least constructive possession to the full extent of the eastern line of the SE/4 of the NW/4 of Section 7. In order for their right of possession to be defeated, it must be shown that their constructive possession has been ousted by adverse corporeal possession. Pitre v. Tenneco Oil Co., supra; Theriot v. La-Terre Company, supra. The record does not establish adverse corporeal possession by the defendant of the disputed area sufficient to oust the plaintiffs’ possession and establish in the defendant a right of possession.

The areas the defendant claims to be in possession of were once possessed by a Boone Grange Lodge and a church. The defendant contends that his family took over possession of these areas when those institutions abandoned their possession of them many years ago. The defendant argues that it is obvious from the record that some form of agreement with respect to the disposition of these parcels was worked out between the abandoning institutions and his father. However, the only instrument of record the defendant has is a quit claim deed executed in May 1981 covering that portion of the disputed property designated as church property on the survey.

Initially, it should be noted that a portion of the land claimed to be possessed by the defendant, that portion of the Boone Grange Lodge tract lying east of line B C on the survey, is not in dispute in this litigation. Also, it is in that undisputed area that the strongest evidence of the defendant’s corporeal possession exists. For the past several years immediately preceding this suit, the defendant has kept an area between the cemetery fence and line B C bush hogged or cleared of underbrush. Additionally, in the more remote past, the defendant and/or his father conducted gravel mining operations on the Boone Grange Lodge tract in the area designated as the abandoned gravel pit on the drawing. However, assuming that activity is sufficient to establish corporeal possession and a right of possession with respect to that portion of the property claimed by the defendant, the evidence fails to establish defendant’s corporeal possession sufficient to establish his right of possession of the property west of the fence along the east line of the NW/4 of Section 7, that is, the property in dispute. Since the defendant does not possess under a title, his possession of that portion of the Boone Grange Lodge tract east of the fence cannot be extended by constructive possession to the limits of the property he claims.

The defendant contends that throughout his family’s possession of the disputed area they have routinely cut wood for personal and commercial use. While the record indicates that the defendant or his family may have cut some timber for commercial purposes on one or two occasions in the 1950s and 1960s, there is no indication in the record that such activity was carried on during the years immediately preceding this lawsuit. Furthermore, the record fails to establish the extent or location of these activities with any degree of certainty.

The record indicates that the vast majority of the timber cut was utilized for fence posts or fire wood rather than for commercial purposes. The only well documented commercial cutting of timber by the defendant from the disputed area occurred in January and February of 1983 and precipitated this lawsuit which was timely filed less than one year after that disturbance. The occasional cutting and removal of timber from an isolated tract of forest land is not proof of actual possession as owner. Frederick v. Goodbee, 120 La. 783, 45 So. 606 (1908); Bayard v. Baldwin Lumber Co., 157 La. 994, 103 So. 290 (1925). The defendant’s sporadic woodcutting activities failed to establish adverse corporeal possession on the disputed property sufficient to entitle him to recognition as possessor of any portion of that area.

The record also indicates that the defendant’s family might have at one time pastured some goats on a portion of the disputed area. However, the record does not establish which portion of the property now claimed by the defendant was used for that purpose or the duration of the pasturing assuming it did in fact occur. Consequently, we find this evidence insufficient to establish adverse corporeal possession of the property now claimed by the defendant.

While the record indicates that the defendant kept a portion of the property he claims cleared by bush hogging, the record also reflects that portion of the property lies east of the area claimed by the plaintiffs and is not in dispute in this lawsuit. There is no indication of routine maintenance, clearing or bush hogging of the disputed portion of the property by the defendant. In fact, the record reflects that the portion of the disputed property designated on the diagram as the church property was in fact used by members of the community as a dump for a period of time in and around the year 1980.

In 1983 the defendant went on the property with a tree buyer and pointed out what he considered the boundaries of his land. Shortly thereafter, the cutting of timber which precipitated this lawsuit occurred. Additionally, during 1983, certain individuals conducting timber cutting operations on the plaintiffs’-property west of the disputed area felt obliged, following the defendant’s protest, to obtain the defendant’s permission to use an existing road crossing that portion of the disputed area designated as the church property for transporting the timber being cut on the plaintiffs’ property. Since these activities occurred within one year of the suit which was subsequently filed by the plaintiffs, these activities do not establish a right of possession in the defendant entitling him to prevail in a possessory action.

The strongest indication of corporeal possession of the disputed area by the defendant is the testimony contained in the record offered by various individuals residing in the community that they have routinely observed the defendant walking over various portions of the disputed property throughout the years and up until a few months prior to the trial of this matter. However, the record also indicates from those witnesses’ testimony that they have also walked over the disputed area on occasions when going hunting or fishing. Consequently, we find this evidence insufficient to establish a public and openly-manifested intent on the part of the defendant to exercise dominion or exclusive control over the property in question and insufficient to establish in the defendant a right of possession. See Theriot v. La-Terre Company, supra, and Forrest v. Messenger, 20 So.2d 766 (La.App.2d Cir.1945).

We find the evidence insufficient to establish adverse corporeal possession of the disputed area by the defendant sufficient to oust the constructive possession of the plaintiffs.

Decree

In light of the foregoing reasons, the district court judgment in favor of the defendant recognizing his right of possession is hereby reversed and set aside. It is hereby ordered, adjudged, and decreed that there be judgment in favor of the plaintiffs, Elizabeth Wreyford Oliver and Stay-ton B. Oliver, and against the defendant, C.L. Kennington, Jr., recognizing and maintaining the plaintiffs’ possession in conformity with their deed of the SE/4 of the NW/4 of Section 7, T 13 N, R 8 W, Red River Parish, Louisiana. It is further ordered, adjudged, and decreed that the defendant assert any claim of ownership adverse to the plaintiffs with respect to the immovable property which forms the object of this lawsuit within 60 days after the date this judgment becomes executory or be thereafter precluded from asserting such claim of ownership. All costs of trial and appeal are assessed against the defendant-appellee, C.L. Kennington, Jr.

Reversed and rendered.


author: SAVOIE, Judge.

text:
    Charles JOHNSON v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, Southeast Louisiana State Hospital. (Two cases.)
    Nos. 83 CA 1007, 83 CA 1008.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, for appellant.
    Thomas H. Matuschka, Staff Atty., Dept, of Health and Human Resources, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellant, Charles Johnson, appeals the Civil Service Commission’s failure to award attorney’s fees in Civil Service Commission Docket Number 3135 and our Number 83 CA 1007. Further he appeals the Commission’s decision upholding his dismissal by appellee, Department of Health and Human Resources, Southeast Louisiana State Hospital, in Civil Service Commission Docket Number 3163 and our Number 83 CA 1008.

Appellant was employed as a Barber I at Southeast Louisiana Hospital and was serving with permanent status at the time of his termination. He was suspended from January 5, 1982, through January 18, 1982. A letter, dated January 11, 1982, was written informing appellant of his suspension. Appellant never received this letter. He filed a notice of appeal on February 1, 1982. The appeal was docketed as Number 3135 on the Civil Service Commission Docket.

On January 4, 1982, appellant was hand delivered a letter from the hospital informing him that the Barber I position was to be abolished, effective January 29, 1982. As a result, he was to be laid off on that date. He was also offered another position at the hospital. This was followed by a letter dated January 25, 1982, reminding him of the layoff and mentioning other positions that were available, some of which offered more opportunities for advancement than the Barber I position. Appellant filed a notice of appeal on February 16, 1982. The appeal was docketed as Number 3163 on the Civil Service Commission docket.

ACTION OF REFEREE AND CIVIL SERVICE COMMISSION

A public hearing was conducted on July 9, 1982, before a referee appointed by the Civil Service Commission. The two appeals were consolidated for the hearing. At the hearing, appellant requested summary disposition of his suspension (# 3135) and ap-pellee requested summary disposition of the layoff appeal (# 3163). On December 17, 1982, the referee granted both requests for summary disposition. On June 10, 1983, the Civil Service Commission upheld the referee’s decision. Appellant appeals the Commission’s ruling in both matters. In # 3163, he appeals his layoff; in # 3135 he appeals the hearing officer’s failure to award attorney’s fees.

ASSIGNMENTS OF ERROR

Appellant contends that the Civil Service Commission erred in:

1. failing to award attorney’s fees in No. 3135;
2. granting the employer’s motion for summary disposition;
3. concluding that the appeal in No. 3163 was not timely filed; and
4. concluding that an appeal filed February 16, 1982, from an action effective January 29, 1982, was untimely.

I.

Appellant alleges that the Civil Service Commission erred in failing to grant attorney’s fees in #3135. The basis of this argument is L.S.A.-R.S. 42:1451 which states that the Commission shall grant attorney’s fees when the appointing authority’s actions are found to have been unreasonable. He argues the appointing authority’s actions were unreasonable because the Commission found the rules regarding suspensions had been violated.

The record shows that on January 4, 1982, appellant was verbally notified that he was suspended for ten working days. A letter dated January 11, 1982, confirmed the verbal suspension, but it was never received by appellant. Appellee could not prove that the letter had been mailed. The Commission overturned the suspension simply because appellee could not prove that appellant had ever been sent written notification of the suspension.

The sole question before us is whether the suspension was unreasonable. The record does not support such a conclusion. The record does reflect that the suspension was fatally defective because written notice as required by Civil Service Rule 12.-2(a) was never mailed as required by Rule 12.3(b).

The determination of the reasonableness of the appointing authority’s action is a factual determination to be made by the Commission. The Commission’s finding will not be disturbed by the reviewing court absent manifest error. Department of Culture, Recreation and Tourism v. Peak, 423 So.2d 718 (La.App. 1st Cir.1982). There is no evidence in the record which indicates that the determination is manifestly erroneous. Therefore, the Commission was not required to award attorney’s fees. Further, there is no indication in the record that attorney’s fees were requested at the hearing or that any evidence was presented to establish grounds for an award. This assignment of error is without merit.

II, III, IV.

The three remaining assignments of error will be considered together. The issue basic to all three is whether appellant received notice of the layoff by the letter of January 4,1982, or by the letter of January 25, 1982. The timeliness of the appeal (filed on February 16, 1982) hinges upon the resolution of that issue.

The January 4th letter stated that a request had been made and approved to eliminate the Barber I position effective January 29, 1982. It further advised appellant that his employment as Barber I would terminate on that date. Finally, appellant was offered a position as Hospital Security Officer I.

The scope of review of a Civil Service Commission decision extends to both the law and the facts. La. Const, art. 10, § 12. The standard of review of decisions of the Commission is the same as that in any other civil case. Thus, the findings of fact of the Commission must be afforded great weight and will be upheld absent manifest error.” Lambert v. Department of Corrections, Louisiana Correctional and Industrial School, 451 So.2d 1340 (La.App. 1st Cir.1984).

After the hearing, the referee found that the January 4,1982 letter notified appellant of the layoff. Since an employee has thirty days from the date of notification to appeal, the appeal filed on February 16,1982, was untimely. The Commission agreed with that finding. The evidence supports the finding of the Commission. We agree with the conclusions of the Commission regarding the January 4, 1982 letter. We attach hereto as Exhibit “A” a copy of that letter because the letter itself defeats appellant’s argument. The January 25, 1982 letter was merely a fóllow-up letter sent because appellant had failed to indicate whether he was interested in another position as requested by the first letter.

For the above and foregoing reasons, the decision of the Commission is affirmed. All costs are to be paid by appellant.

AFFIRMED.

      . L.S.A.-R.S. 42:1451
      In any appeal under Article X Section 8 of the constitution by an employee in the classified state civil service to overturn any action by the department or agency employing him in which the decision to take the action is overruled and such decision is found to be unreasonable, the Civil Service Commission shall order the department or agency to pay reasonable attorneys’ fees incurred by the employee in appealing the action.


author: LANIER, Judge.

text:
    SUCCESSION OF Eugene W. BROWN.
    No. 83 CA 1089.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.

      Guy L. Deano, Covington, for Jessie Hood Brown.
    Mark Alan Jolissaint, Slidell, for Jean Winifred B. Mackey & Eugene W. Brown, Jr.
    Before COLE, CARTER and LANIER, JJ.
   LANIER, Judge.

This is a suit seeking to annul a probated statutory will and rescind a donation inter vivos brought by the decedent’s two surviving children of a prior marriage against his widow. The district court upheld the validity' of the donation but annulled the will because its attestation clause did not comply with La.R.S. 9:2442(B)(2). The widow took this suspensive appeal from the judgment annulling the will. The surviving children did not appeal the judgment upholding the donation and it is final.

FACTS

Eugene W. Brown executed a statutory will on May 26, 1981. Brown died on November 10, 1981. He was survived by a wife, Jessie Hood Brown, and two children, Jean Winifred Brown Mackey and Eugene W. Brown, Jr. On December 8, 1981, Brown’s widow filed a petition to probate the statutory will and be recognized as the testamentary executrix. The will was probated on December 16, 1981, and Mrs. Brown was appointed testamentary executrix. This suit was filed on June 1, 1982.

The attestation clause of Brown’s will is as follows:

STATE OF LOUISIANA PARISH OF ST. TAMMANY
BEFORE ME, the undersigned authority, personally came and appeared:
EUGENE W. BROWN
who declared under oath before me, Notary, and the undersigned competent witnesses that he can read and understand the English language; that he has read the above and foregoing document which is his Last Will and Testament and that he executes the same in the presence of all of the undersigned, this 26th day of ⅜, 1981.
WITNESSES:
/s/ Audrey Wetta /s/ Eugene W. Brown AUDREY WETTA EUGENE W. BROWN, Testator
/s/ Paulette Singletary PAULETTE SINGLETARY
/s/ Guy L. Deano, Jr. GUY L. DEANO, JR., NOTARY PUBLIC

VALIDITY OF ATTESTATION CLAUSE

The district court judge found that the attestation clause was not in substantial compliance with La.R.S. 9:2442(B)(2) because “no declaration was signed by the notary public and the witnesses ..Mrs. Brown contends that this ruling is in error and the clause is in substantial compliance with the statute.

The policy of our law is to maintain the validity of a will, if possible. Succession of Morgan, 257 La. 380, 242 So.2d 551 (1970); Succession of Thibodeaux, 238 La. 791, 116 So.2d 525 (1959). Since this action to annul decedent’s will was instituted more than three months after the will was probated, the burden of proving the invalidity of the testament rested with the surviving children. La.C.C.P. art. 2932; Succession of Jacque, 424 So.2d 1152 (La. App. 1st Cir.1982), writ denied, 429 So.2d 145 (La.1983). Therefore, we must determine whether the decedent’s children proved that the will was invalid because of failure to comply with La.R.S. 9:2442.

La.R.S. 9:2442(B) provides as follows:

The statutory will shall be prepared in writing and shall be dated and executed in the following manner:
(1) In the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his last will and shall sign his name at the end of the will and on each other separate page of the instrument.
(2) In the -presence of the testator and each other, the notary and the witnesses shall then sign the following declaration, or one substantially similar: ‘The testator has signed this will at the end and on each other separate page, and has declared or signified in our presence that it is his last will and testament, and in the presence of the testator and each other we have hereunto subscribed our names this _ day of _, 19_’ [Emphasis added].

All of the formal requisites for the confection of a statutory will must be observed, under penalty of nullity. There must be an attestation clause, or clause of declaration. However, its form is not sacrosanct. Succession of Morgan, 242 So.2d at 552; Succession of Dilley, 422 So.2d 516 (La.App. 5th Cir.1982). In Succession of Morgan, 242 So.2d at 552-553, the Louisiana Supreme Court discussed the attestation clause as follows:

It may follow the form suggested in the statute or use a form substantially similar thereto. The attestation clause is designed to evince that the facts and circumstances of the confection and execution of the instrument conform to the statutory requirements. In construing the attestation clause of this type of will, this court has been most liberal in its determination of whether the clause complies in form and whether it evidences the requisites to supply validity to the instrument. ... In construing an attestation clause we will not require strict, technical, and pedantic compliance in form or in language. Rather, we will examine the clause to see whether there is substantial adherence to form and whether it shows facts and circumstances which evidence compliance with the formal requirements for testamentary validity.
[Emphasis added].

La.R.S. 9:2442(B) provides that a statutory will shall be executed in a certain manner. The word “shall” is mandatory. La.R.S. 1:3. Cf. La.C.C.P. art. 5053; La.C. Cr.P. art. 5; La.C.J.P. art. 4. To properly execute a statutory will the following things must be done: (1) in the presence of a notary and two competent witnesses, the testator shall declare that the instrument is his last will; (2) in the presence of a notary and two competent witnesses, the testator shall sign his name at the end of the will and on each page thereof (in the instant case the will is only one page); and (3) in the presence of the testator and each other, the notary and the witnesses shall sign the attestation clause set forth in the statute or one substantially similar.

The purpose of an attestation clause is to show the will was executed in conformity with the statute. The attestation clause set forth in the statute, La.R.S. 9:2442(B)(2), requires the notary and witnesses to declare (1) the testator signed the will at its end and on each separate page, (2) the testator declared in the presence of the notary and witnesses that it (the instrument) was his will, and (3) in the presence of the testator and each other, they (the notary and witnesses) signed their names on a specified date.

The attestation clause in the instant case is a declaration by the testator, and not a declaration by the notary and witnesses. In it, the testator declares before the notary and witnesses that (1) he can read and understand the English language, which is not required by La.R.S. 9:2442(B)(2), (2) he has read the document (also not required), (3) the document is his Last Will and Testament, and (4) he (the testator) executed the document in the presence of the notary and witnesses on May 26, 1981. This attestation clause does not recite that the notary and witnesses signed their names on May 26, 1981, in the presence of the testator and each other.

The will was not executed in the manner prescribed in La.R.S. 9:2442(B) because the attestation clause was a declaration by the testator and not by the notary and witnesses. The attestation clause itself is not in substantial compliance with La.R.S. 9:2442(B)(2) because it does not recite that the notary and witnesses signed their names on May 26, 1981, in the presence of the testator and each other. These substantive defects are fatal to the validity of the will.

The case of Succession of Dilley is distinguishable from the instant case. In Dilley, 422 So.2d at 517-518, appears the following:

The attestation clause in the testament under consideration reads as follows:
‘Signed on both pages and declared by Donald E. Dilley, testator above named, in our presence and in the presence of each other, to be his last will and testament, we have hereunto subscribed our names as witnesses, on the day and date first above written, in the Parish of Jefferson, State of Louisiana.’
The appellants argue that the attestation clause does not indicate that the notary and witnesses signed the will in the presence of the testator and each other. They assert that, because of this failure, the will is an absolute nullity. Furthermore, they contend there is simply a failure .to recite that the notary and witnesses affixed their signatures in the presence of the testator and of each other.
The only thing the notary and witnesses attest to in the subject case, is that the testator signed in their presence and that they signed the will on the date first above written in the Parish of Jefferson, State of Louisiana. They argue that ‘this attestation clause, therefore, would be truthful if, in fact, the notary and witnesses had signed the will later in the day in another office’. We do not agree.
We have no reservation that the subject attestation clause properly fulfills the substantial compliance requirement mandated under Louisiana law. We conclude that the language of the clause is sufficient to establish that the notary and witnesses signed the will in the presence of the testator and each other. [Bolding added].

The parties in Dilley did not question the fact that the notary and witnesses executed the attestation clause, and the Court found that the language of the clause (which is substantially different from the instant case) was sufficient to show that the notary and witnesses signed in the presence of the testator and each other.

DECREE

For the foregoing reasons, the judgment of the district court is correct and is affirmed at the appellant’s costs.

AFFIRMED.

COLE, J., agrees with the result.


text:
    JEFFERSON PARISH HEALTH UNIT v. STATE of Louisiana OFFICE OF EMPLOYMENT SECURITY, et al.
    No. 83 CA 0994.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 9, 1984.
    See also 458 So.2d 148.
    Ann M. Metrailer, Charles Patín, Asst. Atty. Gen., Baton Rouge, for plaintiff, appellant.
    James A. McGraw, Baton Rouge, for defendant, appellee Office of Employment Sec.
    Philip A. Costa, New Orleans, for defendant-appellee Denise A. Licausi.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   SAVOIE, Judge.

Appellant, Jefferson Parish Health Unit (Employer), appeals the decision of appel-lee, the Board of Review, State of Louisiana Office of Employment Security. The Board affirmed the decision of the appeals referee who found that Denise Licausi (claimant) had not been discharged for misconduct connected with her employment pursuant to L.S.A.-R.S. 23:1601(2). Thus, unemployment compensation benefits were awarded to claimant. The trial court affirmed the decision of the Board. We reverse.

Ms. Licausi worked from August 23, 1979, until July 10, 1981, as a Sanitarian I with the Department of Health and Human Resources, Jefferson Parish Health Unit. Her working hours were from 8:00 A.M. to 4:30 P.M. Monday through Friday. Claimant was basically responsible for inspecting various types of establishments and submitting reports on each inspection. Most of the day was spent outside the office on the inspections, but some office work was necessary in the early morning and late afternoon.

Claimant was discharged by Mr. R.K. Banks, Acting Assistant Secretary, by letter dated July 9, 1981. The dismissal was effective at 4:30 P.M. on July 10, 1981. The reasons stated for the dismissal were lack of adaptation to authority, chronic tardiness, leave abuse, falsification of agency records and inappropriate conduct while on official duty.

The allegation of claimant’s lack of adaptation to authority stems primarily from incidents involving her supervisor, Ms. Williams. Two such incidents were referred to in the letter of termination. First, on March 25, 1981, claimant engaged in the use of loud and profane language directed to Ms. Williams when requested to turn in a'leave slip for being tardy for work that day. Several people in the office heard this exchange. On May 26, 1981, Ms. Williams requested claimant to repair ledger sheets which claimant had torn from the ledger book. Claimant refused to do so in a loud voice which included racial slurs. Again, several employees in the office heard the exchange.

The allegations of chronic tardiness and leave abuse are interrelated since the leave abuse arose from the tardiness. Claimant arrived late for work seven times from April 22, 1981 to May 22, 1981, as noted in the termination letter. Other documents introduced at the hearing, as well as testimony elicited from witnesses for both parties, indicated many other incidences of tardiness.

The charge of falsification of agency records involved inspection reports, daily sign-in sheets and mileage claims. An inspection report, dated January 30, 1980, on Big John’s Foodland was not signed by the owner, although a signature had been placed on that line of the form. Claimant was charged with placing or allowing another to place the false signature on the form. When questioned about the matter, claimant responded that she did not think she had done that. On March 3, 1980, claimant conducted an inspection of a Pizza Hut located in Kenner. She admitted placing the signature of the owner/manager on the bar inspection form. She explained the situation by saying that she had the owner’s permission, but she did not inform her supervisor of her action.

The matter involving the sign-in sheets arose when claimant allegedly signed-in at an earlier time than her actual arrival. This activity, if true, would serve to falsify payroll records. Claimant was charged with engaging in this activity on three occasions: November 5, 1980; April 1, 1981; and April 3, 1981. In addition, on May 21, 1981, claimant signed in at 9:0, omitting the last digit. The employer also considered this a falsification of agency records.

The alleged discrepancies over mileage claims resulted when claimant’s travel dailies for June 5, 8, 9 and 10, 1981, were checked. The mileage recorded by claimant was excessive for each of those days, with more than a fifty percent overage for June 10. The travel dailies were checked as a routine matter by two sanitarians who traveled the route recorded by claimant for each of the days in question.

The final reason given for the termination was inappropriate conduct while on official duty. Three instances were cited as grounds for this charge. On April 16, 1981, claimant engaged in coarse and abrasive language directed toward the owner and the bartender of the Bavarian Tavern. On April 2,1981, claimant insisted on being allowed to enter the back room of a 7-11 store after being informed that money was being counted for a bank deposit and that no one was allowed to enter during that time. Several customers overheard the exchange between claimant and the store employees. On November 14, 1980, claimant was accused of being forward and arrogant during a lunchtime inspection of Thompson’s Restaurant.

This matter was heard before an appeals referee who determined that claimant had not been discharged for misconduct. The Board of Review affirmed that decision. The employer filed an appeal with the district court seeking review of the Board’s decision. After reviewing the records of the administrative hearing, the trial court rendered judgment affirming the Board’s decision. Employer appeals from that judgment.

ASSIGNMENT OF ERROR

Employer contends that the trial court erred in its application of the standards for judicial review as set forth in L.S.A.-R.S. 23:1634, by affirming the decision of the Board of Review which qualified claimant for unemployment compensation.

The scope of appellate review of cases arising under the Louisiana Employment Security Law is set forth in L.S.A.-R.S. 23:1634. The statute provides for judicial review of such cases as follows:

“... In any proceeding under this Section the findings of the board of review as to the facts, if supported by sufficient evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.”

The standard of review set forth in L.S. A.-R.S. 23:1634, has been interpreted by our Supreme Court. In Banks v. Administrator of Department of Employment Security of State of Louisiana, 393 So.2d 696 (La.1981), the Supreme Court stated that “there must be legal and competent evidence to support the factual findings on which the administrative determination turns.”

Thus, we must determine whether the facts are supported by competent evidence and whether the facts, as a matter of law, justify the action taken. Wilkerson v. State of Louisiana, Office of Employment Security, 439 So.2d 506 (La.App. 1st Cir. 1983). We have thoroughly reviewed both the transcript of the hearing and the many exhibits which were introduced. We agree with appellant that the evidence does not support the findings of fact upon which the appeals referee based her opinion.

First, the referee concluded that appellant’s policy regarding mileage discrepancies was to submit the discrepancies to the sanitarian for review. If the sanitarian disagreed with the findings, a recheck was made using the sanitarian’s car. The referee found that no recheck was made in claimant’s car, nor was there a comparison made between the odometer on claimant’s car and the odometer in either Mr. Man-giaracina’s or the Chief Sanitarian’s car. Thus, the referee concluded that the evidence presented did not establish that claimant falsified her travel reports or expense reports since the employer failed to follow its own policy in verifying the reports.

Several witnesses testified regarding the manner in which the mileage claims were checked, including the Chief Sanitarian, Mr. Fox, who instituted the policy; the sanitarian who checked the claims, Mr. Mangiaracina; and the Program Supervisor, Mr. Pollet. Of these, Mr. Pollet was the only witness who stated that the employer’s policy was as the referee found it to be. In his testimony, Mr. Pollet admitted that his knowledge of the policy was based upon what he had heard other people say. Both Mr. Fox and Mr. Mangiaracina testified that the claims were checked, giving the employee the benefit of doubt regarding the route, by following the report exactly as it was written. Normally, discrepancies were discussed with the employee. In claimant’s case, however, a request for dismissal was under consideration by the Acting Assistant Secretary, Mr. Banks, and all information was submitted to him. Claimant was permitted to explain all allegations at a conference conducted by Mr. Banks on July 1, 1981.

“Sufficient evidence” as required by L.S.A.-R.S. 23:1634 means legal and competent evidence; hearsay is not considered sufficient evidence. Southeastern Louisiana University v. Shelton, 431 So.2d 432 (La.App. 1st Cir.1983). Since Mr. Pollet’s testimony regarding the policy on mileage checks was based upon hearsay, it cannot be considered when determining the employer’s policy on mileage checks. The referee’s opinion regarding the policy was based on hearsay, not evidence sufficient to sustain her finding.

Second, the referee found that although claimant was frequently tardy in reporting to work, no evidence of tardiness was presented following a written reprimand for tardiness on May 28, 1981. This finding of fact is incorrect. The written reprimand dated May 28,1981, concerned behavior unbecoming a state civil service employee. The written reprimand concerning tardiness was dated April 10, 1981. Claimant was tardy on seven occasions from April 22, 1981 through May 22, 1981. Thus, claimant was tardy numerous times after receiving a written reprimand for tardiness.

Within two weeks of the last incident of tardiness, termination proceedings were instituted by the Chief Sanitarian. Tardiness was one of the primary reasons that claimant’s dismissal was sought. We believe that the referee confused some of the facts in her opinion. We also believe that tardiness was a proximate cause of the dismissal and that the frequent tardiness was cause for dismissal.

The third reason for the termination was claimant’s lack of adaptation to authority by disrespecting her supervisor. Again, we find that the referee erred in her findings of fact on this point. The referee found that the supervisor had conflicts with employees other than claimant. She further concluded that “when a supervisor treats an individual in an abusive manner which provokes the individual into behaving in a like manner, it cannot be held that the behavior of the employee constitutes misconduct connected with the employment.”

Nothing in the record in any way indicates that the supervisor, Ms. Williams, had conflicts with any employee other than claimant. There is evidence that claimant had conflicts with other employees — supervisors and co-employees alike. Further, the record is devoid of any evidence that Ms. Williams provoked claimant into acting in an abusive manner. In the absence of evidence to support the referee’s findings, we must conclude that her opinion was based upon mere speculation rather than legally sufficient evidence.

We find that the facts are as follows rather than as stated by the referee. Claimant had problems in adapting to authority and on several occasions was disrespectful to her supervisor. On at least one occasion, claimant refused to follow a direct order of her supervisor to repair ledger sheets and continued to refuse until warned by the Chief Sanitarian. More than once, claimant directed abusive and profane language to her supervisor. There is no evidence in the record that the supervisor, Ms. Williams, treated claimant in an abusive manner or that she had conflicts with any employee other than claimant. Claimant had a problem with tardiness throughout her employment. After receiving a written reprimand for tardiness on April 10, 1981, claimant was tardy seven times from April 22, 1981 through May 22, 1981.

We find that claimant refused to follow direct orders given by her supervisor, directed abusive and profane language to the supervisor, and was repeatedly tardy. These acts of claimant are acts of misconduct sufficient to disqualify her for unemployment compensation under L.S.A.R.S. 23:1601(2). Dorsey v. Administrator, Louisiana Department of Employment Security, 353 So.2d 363 (La.App. 1st Cir. 1977).

For the foregoing reasons, the judgment of the district court is reversed and this case is remanded to the Louisiana Board of Review to grant relief to appellant, Jefferson Parish Health Unit, in accordance with law and this opinion. Costs are to be absorbed by the clerk of this court and the clerk and sheriff of the trial court. Shelton, supra.

REVERSED AND REMANDED.