text:
    David CORNISH v. Dale L. FREEMAN, et al.
    83 CA 0651.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Richard D. McShan and W. Hugh Sibley, Greensburg, for plaintiff-appellant.
    Iddo Pittman, Jr., Hammond, for defendant-appellee, State Farm.
    Robert E. Birtel, Metairie, for defendant-appellee, St. Paul Ins. Co.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment maintaining a peremptory exception of res judi-cata in favor of defendant-appellee, Pamela Hayes. Plaintiff-appellant, David Cornish, filed suit for damages allegedly resulting from a three car accident in which he was involved on March 14, 1981. Named as defendants were Dale L. Freeman and his insurer, St. Paul Insurance Company, and Pamela L. Hayes and her insurer, State Farm Mutual Automobile Insurance Company. Prior to trial, plaintiff entered into a settlement with defendants Freeman and St. Paul dismissing them from the suit but reserving his rights against defendants Hayes and State Farm.

On the day this matter was scheduled for trial it became apparent that plaintiff had failed to perfect service on defendant Hayes. Counsel for plaintiff decided to pursue the case against defendant State Farm only, neither dismissing defendant Hayes from the suit nor specifically reserving any rights against her. The jury returned a verdict in favor of State Farm and no appeal was taken from the judgment. Subsequently, plaintiff perfected service upon defendant Hayes. In response to this service, defendant Hayes filed the exception of res judicata which the trial judge maintained and which is the subject of this appeal. We affirm.

LSA C.C. art. 2286 provides, “The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality.” In the landmark case of Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978), the Louisiana Supreme Court found that, “Louisiana legislative authority for res judicata establishes a presumption of correctness and precludes relitigation of the object of the judgment only when there is (1) an identity of the parties, (2) an identity of the ‘cause’ and (3) an identity of the thing demanded” (citations omitted). We must, therefore, determine if the three essential elements of res judicata, as explained in Welch, are present under the facts of this case.

It is apparent from a simple review of plaintiff’s petition that two of the three essential elements, cause and the thing demanded, are the same in these two cases. As this court stated in Ditch v. Finkelstein, 399 So.2d 1216, 1221 (La.App. 1st Cir.1981),

It has been noted by the Louisiana Supreme Court that “cause of action” is a mistranslation and should read simply “cause.” In order to determine the meaning of the work “cause” civilian doctrine should be examined. Mitchell v. Bertolla, 340 So.2d 287 (La.1976), rehearing denied 1976.
In his Civil Law Treatise (Traité élém-entaire de droit civil), Planiol defines cause as “the juridical or material fact which is the basis of the right claimed, or the defense pleaded.” 2 Planiol, Civil Law Treatise, pt. 1, no. 54A(6) at 38 (11th ed. La.St.L.Inst. transí. 1959). In this same source he states, “Without doubt no difficulties are encountered when the claim has its object a real right or a debt; the cause is the principle giving rise to the right; in the case of a real right it is a purchase, a donation, a legacy, etc;”

The principle giving rise to the right claimed (i.e. the cause) in each of these two cases is a tort. Additionally, the thing demanded in each of these two cases, money damages for the alleged tort, is identical.

We are of the opinion that the third essential element of res judicata, the identity of the parties, although much less apparent, is present in this case. In Welch, supra at 156, the Louisiana Supreme Court determined that, “There exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same ‘quality’ as parties ” (emphasis ours). We find that under these facts, defendants share the “same quality as parties.”

LSA R.S. 22:655, Louisiana’s Direct Action Statute, provides in pertinent part, “... The injured person or his or her survivors or heirs hereinabove referred to, at their option, shall have a right of direct action against the insurer within the terms and limits of the policy; and such action may be brought against the insurer alone, or against both the insured and the insurer jointly and in solido_” It is clear, therefore, that within the policy limits, the insured and insurer are solidary obligors. Additionally, LSA C.C. art. 2095 gives the creditor the right to bring separate suits on the same account against all those solidarity obligated to him. This, however, does not preclude a finding of res judicata as to a named insured when the insurer alone is sued, provided that policy limits are not exceeded and the essential elements of res judicata are present.

It has been held that the Direct Action Statute is remedial rather than substantive, and thus, it does not have the effect of creating separate and distinct causes of action, one against the insurer alone and one against the insured and the insurer. Finn v. Employers’ Liability Assurance Corporation, 141 So.2d 852 (La.App. 2nd Cir.1962). The fact that plaintiff is afforded an option as to who he will proceed against does not change the fact that he has but one cause of action arising from the circumstances of this case. In Finn, at page 864, the court stated, “In Sewell v. Newton, La.App. Orleans, 1934, 152 So. 389, 393, it was held that an unsuccessful suit against an insured who carried automobile liability insurance did not bar or preclude the injured party from bringing another suit against the insurer.” We note that this statement is almost a verbatim quote of headnote 5 of the Sewell case, however, the actual language of the Sewell opinion quoted as supporting this proposition does not do so.

In the Sewell case, Mr. Sewell was involved in an intersectional collision with a Mr. James, the chauffeur of defendant Newton. The car being operated by Mr. James was on loan to Mr. Newton from the Cadillac Motor Car Company who actually owned the automobile. Plaintiff Sewell filed suit against Mr. Newton and the Cadillac Motor Car Company. Cadillac reconvened for damages to its vehicle. The court determined that Mr. Sewell was guilty of negligence thus barring his recovery. The court went on to find that Cadillac was entitled to recover from Sewell for the actual damage to its vehicle. The language from the Sewell case relied upon by the Finn court reads as follows,

[5, 6] Plaintiff needs no reservation of its rights against the insurance carrier of Sewell. Under the statute referred to (Act No. 55 of 1930), its right is to proceed directly against either the principal or the insurer, or both, and to seek soli-dary judgments. So long as the claim is not paid by one, the right to sue the other exists. Under article 2095 of the Revised Civil Code, where two or more persons are solidarily obligated, “a suit brought against one of the debtors does not bar the creditor from bringing suits on the same account against the others.”

Our reading of the Sewell case leads us to the conclusion that the court was referring to the plaintiff in reconvention (Cadillac), rather than the plaintiff in the main demand, Sewell. Cadillac had obtained a judgment finding Sewell guilty of negligence and awarding damages. The court merely stated that Cadillac was not required to reserve its rights against Sewell’s insurer, who was solidarily liable with its insured. We agree that this was a correct statement of the law as regards that case, but we are faced with a different situation in the case at hand.

In this case, the jury made a specific factual finding that Hayes was not at fault in causing plaintiffs damages. The jury interrogatory read, “Do you find Pamela Hayes, for whom State Farm Mutual Automobile Insurance Co. is legally responsible, was at fault in causing David Cornish injury in this case.” The jury answered the question in the negative. State Farm has no independent identity in this case absent a finding of fault on the part of Hayes. State Farm’s liability to plaintiff for his damages can only arise upon a finding that its insured was negligent, and such negligence caused plaintiff’s damages. We find that under these circumstances, not only do State Farm and Hayes “share the same quality as parties,” but in essence their identities are virtually merged into one, to the extent of the policy limits. In conclusion, we note that this case involves only a situation where the insurer’s policy limits have not been exceeded.

Therefore, for the foregoing reasons, the judgment of the trial court maintaining the exception of res judicata in favor of defendant Pamela Hayes is hereby affirmed. Plaintiff-appellant is cast with costs of this appeal.

AFFIRMED.

      . Defendant Hayes is a Mississippi resident, and thus, plaintiff was required to utilize Louisiana’s Long Arm Statute, LSA R.S. 13:3201, et seq. Counsel for plaintiff had failed to file into the record his affidavit stating that a copy of the citation and petition had been mailed to defendant in accordance with the statute.


source: Caselaw Access Project

author: CARTER, Judge.

license: Public Domain

text:
    James L. KEAN v. Jerry F. LEMAIRE.
    No. 83 CA 0663.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      George Anding, Watson, Blanche, Wilson & Posner, Baton Rouge, for plaintiff James L. Kean appellee.
    H. Michael Aaron, Guy Holdridge, Crawford, St. Amant & Holdridge, Gonzales, for defendant Jerry F. Lemaire appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This is a suit for the balance due on a building contract. In July of 1974, James Kean and Jerry Lemaire entered into a written contract whereby Kean (a building contractor) was to construct a residence for Lemaire for a stated price of $33,500.00. Kean finished the work he was to do under the contract, and on February 26, 1975, Lemaire filed notice of his acceptance of the work in the office of the Recorder of Mortgages.

On January 26, 1976, Kean filed suit against Lemaire alleging that Lemaire owed him the following amounts: (1) $3,266.03 as the balance due under the contract; (2) $1,875.60 for extras and allowance overages; and, (3) $985.40 for interest on funds which he was forced to borrow to pay suppliers/materialmen. The total amount prayed for was $6,127.03.

After a trial on the merits, the trial judge rendered judgment in favor of plaintiff in the amount of $4,041.63 with legal interest from the date of judicial demand. The amount of the judgment was not itemized, nor were there any written reasons for judgment.

Defendant appeals the ruling of the trial court and assigns the following errors:

(1) The trial court failed to uphold the terms of the builder’s contract as orally modified by the defendant;
(2) The trial court erred in holding that additional amounts were owed to the plaintiff as extras; and,
(3) The trial court erred in failing to give the defendant credit for work performed by him, for costs saved and for liquidated damages.

ASSIGNMENT OF ERROR NO. 1

Defendant argues that the trial court failed to uphold the terms of the builder’s contract as orally modified.

Defendant contends that plaintiff agreed to construct a residence for $33,500.00, and subsequently it was agreed that this price could be reduced if defendant would do the wallpapering and painting. Plaintiff contends that he sent a letter to defendant in which he submitted a bid of $36,500.00 for a totally completed residence and an alternate bid of $33,500.00 for a partially completed residence (i.e., plaintiff would do the wallpapering and painting). Both parties agree that defendant did do the painting and wallpapering.

The written contract entered into by the parties is a standard “Builder’s Contract” which provides that the Contractor “agrees to furnish all materials, to do and perform all the work, and to erect, build, finish and deliver in a perfect and thoroughly workmanlike manner a residence ..”. The contract further provides: “In consideration thereof, the said Owner binds and obligates himself to pay to the said Contractor ... the sum of Thirty-three Thousand, Five Hundred and no/100 .... ($33,500.00) ... Dollars.”

Legal agreements have the effect of law upon the parties, and as they bind themselves they shall be held to a full performance of the obligations flowing therefrom. In determining the rights, obligations and relationships arising from an instrument, courts are bound to give legal effect to the true intent of the parties, and when interpreting or construing such an instrument, all facts and circumstances relevant and pertinent are to be weighed and considered. Cardos v. Cristadoro, 228 La. 975, 84 So.2d 606 (La.1955).

As a general rule, parol evidence is inadmissible to vary, modify, explain or contradict a writing. However, there are exceptions which permit reference to parol and other outside evidence. One such instance is where the mutual intention of the parties has not been fairly explicit. In such instances, the court may consider all pertinent facts and circumstances, including the party’s own conclusions rather than adhere to a forced meaning of the terms used. Kendrick v. Garrene, 233 La. 106, 96 So.2d 58 (La.1957).

In the case sub judice, plaintiff testified that he first submitted an oral bid followed by a written bid. In each instance he quoted defendant a price of $36,500.00 for a totally finished residence and an alternate price of $33,500.00 in the event defendant did the painting and wallpapering. A copy of the letter referred to by plaintiff was introduced into the record.

Defendant testified that the only bid he received was $33,500.00 and it covered the complete construction and finishing of the residence. He further testified that he subsequently discussed with plaintiff the possibility of lowering the agreed upon price of $33,500.00 by doing his own wallpapering and painting.

Apparently, the trial judge concluded, and our examination of the testimony and the evidence convinces us that the parties intended the contract price of $33,-500.00 to be a reduction in the original contract price resulting from an agreement that defendant would do certain finishing work himself. Plaintiff has proven that he is entitled to the balance due on the contract. It was stipulated at trial that defendant had paid $29,033.97. Plaintiff is, therefore, entitled to the $3,266.03 for which he prayed.

ASSIGNMENT OF ERROR NO. 2

Defendant argues that the trial court erred in holding that additional amounts were owed to the plaintiff as extras.

For purposes of clarity, we will consider each extra or overage claimed by plaintiff individually to ascertain whether sufficient evidence was produced by plaintiff to support his claims. There are ten disputed claims.

0)

Plaintiff claims he allowed $7.00 per roll for the wallpaper and that defendant chose patterns ranging from $7.95 to $9.65 per roll resulting in an overage of $45.36. The handwritten specification sheet submitted by plaintiff does not state an allowance for wallpaper, therefore, the overage claimed by plaintiff for this item will be disallowed.

(2)

According to the specification sheet, the allowance for appliances was $500.00, but the bills submitted by plaintiff indicate that the total cost of appliances selected by defendant was $719.45, an overage of $119.45. However, as plaintiff has claimed $85.16, only this amount will be allowed.

(3)

The specification sheet indicates an allowance of $200.00 for electrical fixtures, and plaintiff claims there was an overage of $78.84. The record contains no invoices for electrical fixtures and therefore, this claim is disallowed.

(4)

Plaintiff claims that defendant selected carpet costing $9.48/sq.yd. and that the specification sheet allowed only $9.00/sq.yd. resulting in an overage of $63.21. The invoice indicates that a total of 104.17 sq.yds. of carpet was purchased at a cost of $9.48/sq.yd. According to our calculations, this results in an overage of $50.00. This amount will be allowed.

(5)

The specification sheet indicates an allowance of $6.00/sheet, for paneling. Plaintiff claims an overage of $0.75/sheet totaling $67.50. After examining the invoices, we have determined that 77 sheets were purchased at a cost of $6.75/sheet resulting in an overage of $57.75, which will accordingly be allowed.

(6)

The specification sheet indicates an allowance of $1.00/sq.ft. for upstairs bath flooring. Plaintiff claims an overage of $0.20/sq.ft. totaling $33.60. The invoice indicates that a total of 18 sq. ft. was purchased at a cost of $1.20/sq.ft. resulting in an overage of $3.60, therefore only $3.60 will be allowed for this claim.

(7)

Plaintiff claims $402.00 for extra carpentry work. Plaintiff testified at trial that defendant would appear at the construction site and direct the carpenters to make certain changes. In addition, plaintiff submitted a bill he received from Gued-ry and Patty Const. Co. for $402.00 which was for “Extras requested by Mr. & Mrs. LeMaire on job.” Plaintiff is entitled to recover this amount.

(8)

Plaintiff claims as an extra $399.50 for the installation of copper wiring in defendant’s residence. Plaintiff submitted a bill from John’s Electrical Company indicating that the cost of wiring the house was $1,750.00 and that an additional $399.50 was charged as “Extra for Copper wiring.” A letter written by defendant’s attorney to plaintiff and introduced into the record indicates that defendant had authorized the use of copper wiring. The $399.50 for the copper wiring will be allowed.

(9)

Plaintiff claims $548.50 for extra siding, which was required when it was discovered that the gables could not be built as drawn, and therefore, would require siding. Plaintiff submitted a bill from A & E Insulation, Inc. which totaled $2,402.17, $548.50 of this amount was designated as “Extras on siding.” This amount will be allowed.

(10)

Plaintiff claims that the original plans did not call for front or rear sidewalks, however at defendant’s insistence, plaintiff included such sidewalks at a cost of $151.93 for five yards of concrete. The invoices for concrete indicate that the price of the concrete fluctuated from $22.60 to $23.90/yd. Because it is impossible for us to determine the price paid for the concrete used for the sidewalks, we will use the average ($23.25/yd) and allow a total of $116.25 for this claim.

Based on our calculations, plaintiff has proven that he is entitled to $1662.76 in extras and overages.

ASSIGNMENT OF ERROR NO. 3

Defendant argues that the trial court erred in failing to award him $1180.00 for liquidated damages. Defendant contends that the contract provides for liquidated damages in the amount of $10.00 per day for every day after October 31, 1974 that the construction was not completed. A claim for this amount may either be pleaded as an affirmative defense or by way of reconventional demand. LSA-C. C.P. arts. 1005, 1061. As defendant has done neither, this claim is not properly before this court.

Defendant also argues that the trial court erred in failing to allow him a credit for $500.00. Defendant contends he is entitled to the credit, due to the use of a less expensive pre-fabricated fireplace rather than a masonry fireplace. We find no merit in this argument. Plaintiff testified, and the specification sheet indicates, that the less expensive prefabricated fireplace was to be installed initially.

CONCLUSION

Based on the issues presented to us on appeal, we conclude that plaintiff has proven that he is entitled to: (1) $3,266.03 as the balance due on the contract; and (2) $1,662.76 for extras and overages. These amounts total $4,928.79. This is more than the $4,041.63 awarded by the trial court, however, as plaintiff has neither appealed nor answered the appeal, we cannot increase the judgment of the trial court.

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

AFFIRMED.

      . According to our calculations, the balance due on the contract is $4,466.03; however, we cannot increase the amount prayed for. Therefore, we will use the $3,266.03 figure supplied by the plaintiff.


author: WATKINS, Judge.

text:
    JOHN LOVELL & COMPANY v. Sterling M. BOUDREAUX, Jr.
    No. 83 CA 0689.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      William M. Detweiler, New Orleans, for plaintiff, appellee.
    James C. Bates, Baton Rouge, for defendant, appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Plaintiff, John Lovell & Company, filed suit against defendant, Sterling M. Bou-dreaux, Jr., for $2,845.00 allegedly due for accounting services provided for defendant. The trial court awarded plaintiff $2,717.00 plus attorney’s fees in the amount of $500.00, and defendant appeals.

In his three specifications of error, defendant contends that the trial court erred in: (1) awarding plaintiff $2,717.00 on the basis of the evidence presented; (2) admitting certain evidence; and (3) awarding attorney’s fees.

The record shows that defendant hired plaintiff in the latter part of 1980 to perform accounting work. The testimony is in conflict as to the extent of the work to be performed. While defendant contends he hired plaintiff to perform a projection of his 1980 tax liability and prepare the tax projection. After plaintiff completed the projection, it submitted a bill to defendant. When this bill was not paid, plaintiff brought this suit.

Defendant first contends that the trial court erred in awarding plaintiff $2,717.00 on the basis of the evidence introduced. The amount of an account is a question of fact on which the trial judge’s findings will not be disturbed absent manifest error. Texas Industries, Inc. v. Roach, 426 So.2d 315 (La.App. 2nd Cir.1983).

John C. Lovell, C.P.A., testified that he worked approximately nine and one-half hours on the projection and that his hourly rate is $100.00. Deanna Posey, accountant, testified that she worked seventy and one-half hours on the projection. Mr. Lovell testified that the company charges $28.00 per hour for Ms. Posey’s services. Plaintiff also introduced into evidence Ms. Po-sey’s time sheets reflecting the dates and hours worked.

After reviewing the record, we cannot say that the trial judge’s finding as to the amount owed is clearly wrong.

Defendant next contends that the trial court erred in admitting into evidence plaintiff’s client ledgers. Defendant argues that the ledgers were hearsay because they contained a statement of hours worked by employees who did not testify at trial and the person who prepared the ledgers did not testify at trial. However, even if we disregard the ledgers, there is ample other evidence to support the trial court’s finding. The admission of hearsay evidence is not reversible error where there is ample other evidence on which the trier of fact could base its findings. Meadeaux v. Hall, 369 So.2d 240 (La.App. 4th Cir., 1979); writ denied 369 So.2d 1366 (1979). We therefore conclude that if the trial court erred in admitting the ledgers, such error was harmless error.

Defendant also contends that the trial court erred in assessing attorney’s fees based on LSA-R.S. 9:2781 because: (1) no “open account” existed; (2) the amount stated in plaintiff’s demand letter was incorrect; and (3) the bill submitted to defendant was insufficient to constitute an “invoice” under LSA-R.S. 9:2781. Because we find merit to defendant’s argument that no open account existed, we need not discuss his other contentions.

LSA-R.S. 9:2781 authorizes the assessment of attorney’s fees in suits on open accounts. At the time of trial, paragraph C. of that provision stated.

“C. For the purposes of this Section, an open account shall include debts incurred for professional services, including, but not limited to, legal and medical services, which are rendered on a continuing basis.”

We conclude that the debt involved in this case was not on an open account. Mr. Lovell testified that his firm was retained by defendant in late 1980 and that the extent of the engagement was to project defendant’s 1980 tax liability. He further testified that the firm completed the projection and billed defendant. In our opinion this falls short of proving that the services were “rendered on a continuing basis.” Therefore, the trial court erred in assessing attorney’s fees based on LSA-R.S. 9:2781.

For the above reasons, the portion of the judgment awarding plaintiff $2,717.00 is affirmed. The portion of the judgment awarding attorney’s fees is reversed. All costs of this appeal are to be shared equally by the parties.

AFFIRMED IN PART, REVERSED IN PART.

      . Paragraph C. of LSA-R.S. 9:2781 was amended by Act 311 of 1983 to provide:

        "C. For the purposes of this Section and Code of Civil Procedure Articles 1702 and 4916, ‘open account’ includes any account for which a part or all of the balance is past due, whether or not the account reflects one or more transactions and whether or not at the time of contracting the parties expected future transactions. 'Open account’ shall include debts incurred for professional services, including, but not limited to, legal and medical services.”


author:
WATKINS, Judge. PONDER, Judge,
      CARTER, Judge,

text:
    Dale GAUDET, Individually and as Natural Tutor of His Minor Son, Glenn Gaudet v. G.D.C., INC., et al.
    No. 83 CA 0715.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.
    Michael Harson, Lafayette, for plaintiff-appellant Dale Gaudet individually and as natural tutor of Ms minor son, Glenn Gau-det.
    James Adams, Lafayette, Calvin G. Nor-wood, New Orleans, for defendant-appellee Chrysler Corp.
    Michael V. Clegg, Baton Rouge, for defendant-appellee G.D.C., Inc.
    Paul H. Spaht, Baton Rouge, for defendant-appellee Albert Switzer & Associates.
    W.S. McKenzie, Baton Rouge, for defendant-appellee American Concrete Co.
    William N. Faller, Baton Rouge, for defendant-appellee American Motorists Ins. Co.
    Frank J. Gremillion, Baton Rouge, for defendant-appellee City of Baton Rouge and Parish of East Baton Rouge.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This is an action originally brought against eight separate defendants by Dale Gaudet as administrator and/or natural tutor on behalf of his minor child, Glenn Gaudet, for personal injury to Glenn Gau-det which allegedly rendered Glenn a qua-draplegic. In the present aspect of the case, American Concrete Company, a division of Union Metal Manufacturing Company, moved for summary judgment, which was granted. We affirm.

Summary judgment was sought on the bases of the pleadings and of the depositions of Lieutenant James R. Rushing, Donald Dale Gaudet, Patricia A. Gaudet, and Mark East. The record before us was made up on a designation of documents prepared by counsel for appellant, Dale Gaudet. See LSA-C.C.P. art. 2128.

The pleadings in the record do not support the granting of summary judgment in our opinion. However, the depositions mentioned above were not included in the list of documents designated to constitute the record. Judgments of the trial court are presumed correct and items of evidence missing from the record are pre: sumed to support the trial court’s judgment. United Pentecostal Church v. Interstate Surplus Underwriters, Underwriters at Lloyd, 368 So.2d 1104 (La.App. 2d Cir.1979), writ denied 371 So.2d 621 (1979). The trial court’s oral reasons for judgment are not in the designated record. Hence, although the pleadings fail to support the granting of summary judgment, it must be presumed that the granting of summary judgment was supported by the depositions omitted from the record but mentioned in American Concrete’s motion for summary judgment. If the depositions had not been omitted from the designation of the record, a remand would be in order, but as the record was designated, we must assume the omitted depositions would not support appellant’s position.

Accordingly, the judgment of the trial court is affirmed, at appellant’s cost.

AFFIRMED.

PONDER, J., dissents and assigns reasons.

CARTER, J., concurs and assigns reasons.

PONDER, Judge,

dissenting.

I respectfully dissent, believing the presumption of correctness of the trial court’s judgment to be inappropriate in summary judgment cases.

Furthermore, I cannot agree with the concurring opinion, since it has the effect of converting a motion for summary judgment into a peremptory exception of no cause of action and of sustaining an exception which has not been filed.

Since there is insufficient evidence in the record to sustain a motion for summary judgment, I would reverse and remand.

CARTER, Judge,

concurring.

, I agree with the result reached herein, but not for the reasons assigned.

This court has previously resolved the issues of this appeal in a earlier unreported decision in the present case by sustaining an exception of no cause of action in favor of Dixie Electric Membership Corporation.

If the user (Dixie Electric) of the light standard has no duty to use a standard that will not injure a driver who leaves the highway and runs into the light standard, clearly the manufacturer would have none. Additionally, the manufacturer has no duty to warn the user of characteristics which the user (Dixie Electric) has no duty to consider in use of the product.

The duty-risk analysis as set forth in Dixie Drive-It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962), rehearing denied 1962, reiterated by the case of Naylor v. La. Dept. of Public Highways, 423 So.2d 674 (La.App. 1st Cir. 1982), writs denied, 427 So.2d 439 and 429 So.2d 127, 134 (La.1983), and the recent case of Allison v. City of Baton Rouge, 439 So.2d 570 (La.App. 1st Cir.1983) consists of four inquiries which must be answered affirmatively in order to hold a defendant liable.

The first of these questions that must be answered in the affirmative is whether or not the defendant owed a duty to the plaintiff. If this query is answered in the negative, then the subsequent queries as to whether or not the defendant breached the duty, whether or not the breach of the duty was a substantial factor in bringing about the harm to the plaintiff, i.e. was a cause in fact of the harm which occurred and the final question of whether or not the risk and harm encountered by the plaintiff fall within the scope of the protection afforded by the duty breached all become moot. I am aware of no authority and no Louisiana case has been cited to us to support appellant’s contention that the manufacturer of a light standard has a duty to manufacture one that will not injure an errant driver who leaves the highway and runs into it or even to design one that would minimize damages in such a situation. Further, the manufacturer has no duty to warn the user (Dixie Electric) of characteristics which the user has no duty to consider in the use of the product.

Accordingly, I am in agreement that the judgment of the trial court should be affirmed.

      . In an earlier unreported decision in the present case, this court affirmed the sustaining of an exception of no cause of action filed by Dixie Electric Membership Corporation, a co-defendant, in proceedings to which American Concrete was not directly a party. (Gaudet v. G.D.C., Inc., No. 14,454, La.App. 1st Cir., December 22, 1981.)

      . Gaudet v. G.D.C., Inc. # 14,454 (La.App. 1st Cir. December 22, 1981).


author: SAVOIE, Judge.

text:
    Stephen S. WOOD v. Henry A. HAAS, et al.
    No. 83 CA 0717.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      George K. Anding, Jr., Baton Rouge, for Stephen S. Wood.
    Daniel R. Atkinson, Baton Rouge, for Henry A. Haas, Henry J. Haas and Allstate Ins. Co.
    J. Rodney Ryan, Baton Rouge, for Mary Kathryn Bellew.
    Horace C. Lane, Baton Rouge, for State Farm Mut. Auto. Ins. Co.
    Ray Dawson, Baton Rouge, for Progressive American Ins. Co.
    Frank J. Gremillion, Asst. Parish Atty., Baton Rouge, for City of Baton Rouge.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiff, Stephen S. Wood, appeals the trial court’s judgment dismissing his tort action against the defendant, City of Baton Rouge, Parish of East Baton Rouge (City-Parish), in this personal injury case.

About 10:00 P.M. on April 7, 1980, plaintiff, accompanied by a rider, was proceeding south on Highland Road at approximately 35 miles per hour on his motorcycle. At approximately the same time, Henry A. Haas, who was driving a car headed west on East Parker, stopped at the intersection of East Parker before proceeding across Highland Road to West Parker. A collision occurred between the Haas automobile and the Wood motorcycle, resulting in serious injury to Mr. Wood.

Highland Road, a two-lane road that runs through the LSU campus, is intersected by East Parker and West Parker Boulevard just south of the campus. East Parker and West Parker do not line up directly across from each other, rather there is an offset in the intersection.

The entry onto the LSU campus is marked by two large octagonal concrete posts, approximately seven feet in width, which are situated on each side of Highland Road. These gates are north of the subject intersection and approximately 77 feet from the north edge of East Parker. A stop sign controls traffic from East Parker entering onto Highland Road. The stop sign is located 17 to 21 feet from the east parallel line of Highland Road.

Prior to the trial, plaintiff settled with Henry A. Haas, operator of the automobile, Henry J. Haas, owner of the automobile, and the owner’s insurers. The case'now involves only the prospective liability of the remaining named defendant, the City-Parish.

Plaintiff seeks to show that the City-Parish was at fault in designing the intersection, as a hazard or trap has been created for traffic entering onto Highland Road from East Parker.

ACTION OF THE TRIAL COURT

The trial court ruled in favor of the defendant, finding there was no evidence of fault on the part of the City-Parish and that the sole cause of the accident was attributable to the fault of Henry A. Haas. The trial judge dismissed plaintiff's suit as to the City-Parish. Plaintiff timely took a devolutive appeal.

ASSIGNMENTS OF ERROR

Appellant submits that the trial court erred:

(1) in finding no evidence of fault on' the part of the City-Parish which proximately caused the collision in question; and
(2) in finding that the sole cause of the accident was the fault or negligence of Henry A. Haas.

We will consider both assignments of error together.

The trial judge referred to Skinner v. Nightingale, 377 So.2d 1348 (La.App. 1st Cir.1979), as stating the law applicable to this case. “Defects which are not in the nature of traps, or from which danger cannot reasonably be anticipated provide no actionable negligence. Liability will only be imposed when the defect is dangerous or calculated to cause injury.” “There is no fixed rule for determining what is a dangerous defect in a public way; the facts and surrounding circumstances of each particular case control. The test usually applied, however, requires an answer to the question: was the public way maintained in a reasonably safe condition for persons exercising ordinary care and prudence?” ...

The testimony of the expert witnesses showed that the line of sight is restricted at the intersection and is limited to 140 feet for East Parker traffic stopped at the stop sign. However, the evidence also showed that by moving past the stop sign to the edge of Highland Road, a motorist on East Parker can see more than 335 feet to the north, the direction from which plaintiff approached. Accordingly, the trial court found that had Haas moved to the edge of Highland Road, he, Haas, would have , had an unobstructed view to the north for a considerable distance. Haas’ failure to see the approaching motorcycle with its headlamp burning was negligence and the sole cause of the accident. For these reasons, the trial judge dismissed plaintiffs ease as to the City-Parish.

Great weight must be given to the factual conclusions reached by the trial court. This court may not substitute its own evaluations and inferences for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly wrong. Everett v. Louisiana, Department of Transportation and Development, 424 So.2d 336 (La.App. 1st Cir.1982), rehearing denied, Jan. 1983. We agree with the trial court that no fault was shown on the part of the City-Parish and that the sole cause of the accident was the negligence of Henry A. Haas.

Application of the test set out in Skinner leads us to the same conclusion. The record convinces us that this intersection was reasonably safe for Henry A. Haas, provided Haas exercised care and prudence. Care and prudence would have dictated that Haas move forward to the edge of Highland Road, at which point Haas could and should have seen the approaching motorcycle. There was no trap. Haas knew that he was preparing to cross a major thoroughfare from a side street. He knew or should have known that it was his obligation, under the circumstances of this case, to ascertain that his crossing could be initiated and completed safely. His failure to fulfill his obligation was the cause-in-fact of the accident.

For the foregoing reasons, the trial court’s judgment is affirmed. Costs are to be borne by appellant.

AFFIRMED.


author: LOTTINGER, Judge.

text:
    James McCLENDON v. Glen CARRIER.
    No. 83 CA 0720.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.
    William J. Knight, Franklinton, for plaintiff-appellee.
    Joseph H. Simpson, Amite, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a suit for false imprisonment or malicious prosecution brought by plaintiff James McClendon, against defendant, Glen Carrier. After a trial on the merits, judgment was rendered in favor of plaintiff in the amount of $21,865.00 which was later amended to $16,865.00. Defendant appeals from that judgment.

FACTS

The trial court found the following facts:

“Plaintiff and defendant were partners in the operation of M & S Sales. The business was a failure and the parties agreed to terminate its operations in late August or early September of 1980. At a meeting of plaintiff and defendant, plaintiff offered to buy or sell with the purchaser assuming liability for all obligations of the business. Defendant agreed at the meeting to sell to plaintiff. A short sales agreement was drawn up by the bookkeeper. However, a paragraph was thereafter added by defendant that the purchaser would pay $1,500 and plaintiff refused to sign.

“Plaintiff continued to openly operate the auction as a sole proprietorship in the same location that the partnership had previously operated in Amite, Louisiana. This continued from September 1980 through the middle of February 1981. Plaintiff, meanwhile, started a similar business in Franklinton and decided to shut-down his Amite operations. He came to Amite several nights to clean out the building and move the fixtures to his Franklinton operation. Defendant signed a criminal affidavit charging plaintiff with theft of the fixtures, which he filed with the Sheriff of the Parish of Tangipahoa, resulting in plaintiffs arrest and pre-trial imprisonment in the Tangipahoa Parish Jail for a period of 15 days. The extended stay was due to bail having been set at $50,000, which plaintiff was unable to raise.

“Defendant contends that certain property removed by plaintiff belonged solely to defendant. The Court finds that certain fixtures were the separate property of the defendant, while other fixtures were property of the partnership. Some of the items named in the charges were tables owned by the Amite Jaycees, and loaned to defendant.”

Additionally, the District Attorney nolle prossed the charges against McClendon after conferring with him and his lawyer. The trial court went on to find that no probable cause existed for Carrier to file charges against McClendon, and that Carrier “could easily have mitigated the injuries suffered by plaintiff” by dropping the charges, but instead he “checked at the jail to see that plaintiff was still confined there.”

SPECIFICATIONS OF ERROR

The defendant-appellant alleges that the trial court erred in:

1) finding him liable, either for false imprisonment or malicious prosecution, and in confusing the two causes of action;
2) awarding an excessive amount in damages.

ISSUES

Defendant-appellant argues first that the trial court confused the two torts of false imprisonment and malicious prosecution and that neither theory of liability was proved.

Louisiana tort law and the concepts of fault spring from Article 2315 of the Civil Code. As Professor Ferdinand Stone recognized in his Louisiana Civil Law Treatise, Tort Doctrine, § 201, p.p. 265-267, Louisiana courts have not always delineated with clarity the distinction among the different categories of what Stone calls “interference with liberty.”

Stone, however, does make an attempt to loosely define the different categories. False imprisonment or false arrest is the confinement by a private citizen of another unlawfully or by a police officer or citizen of another without a valid warrant. Malicious prosecution is the institution of criminal or civil proceedings by A against B with malice and no probable cause on the part of A; B must have had proceedings terminated in his favor. See Jones v. Soileau, 448 So.2d 1268 (La.1984); Robinson v. Godchaux’s, 307 So.2d 287 (La.1975); Tillman v. Holsum Bakeries, Inc., 244 So.2d 681 (La.App. 4th Cir.1971).

Since plaintiff appellee McClendon was arrested lawfully, a finding of fault here would have to be based on malicious prosecution rather than false arrest or false imprisonment.

Defendant claims that the trial court was erroneous in finding that he had no probable cause to believe McClendon was stealing goods that belonged to him. We find no error in the trial court’s finding because the record shows .that Carrier never tried to redeem the fixtures but rather told McClendon that he could use them. McClendon explained that his moving the fixtures to his new place of business at night was due to that being the only time available to do so. Carrier could have probably resolved this dispute with a phone call; instead he rashly filed an affidavit which resulted in plaintiffs imprisonment. Furthermore, there was no corroboration of Carrier’s claim that someone at the sheriff’s office advised him to file an affidavit alleging theft.

Additionally, even though we agree with defendant-appellant that a nolle prosequi does not raise a presumption of no probable cause due to other possible reasons for the dismissal, the nolle prosequi does further plaintiff’s cause.

Malice may be inferred from the circumstances of a particular case. Robinson v. Godchaux’s, Inc., supra. While the trial court did not call Carrier’s actions “malice,” it did point to facts sufficient to constitute the element. Carrier’s checking for McClendon’s presence once or twice during his stay in prison evinced a malicious intent on Carrier’s part; his refusal to change his story in the affidavit likewise shows malice.

Mindful as we are of the policy considerations present in such a case as this, we do not feel that the goal of encouraging citizens to report crime would be set back by affirming the trial court’s decision.

Damages for mental anguish and embarrassment were reduced from $20,000 to $15,000 by the trial court. Defendant says this is due to the post-trial revelation that plaintiff also was charged with writing a bad check in South Carolina. The record contains telegrams from authorities in South Carolina reflecting that such a charge was outstanding. Apparently the plaintiff spent eight days in jail after the South Carolina charge was dropped, however. The trial court’s reduction of the damages reflects this and is not erroneous. The trial court judgment is affirmed at appellant’s costs.

AFFIRMED.


author: COLE, Judge.

text:
    David FERGUSON v. DEPARTMENT OF HEALTH AND HUMAN RESOURCES, OFFICE OF MANAGEMENT AND FINANCE.
    No. 83 CA 0751.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Raymond L. Simmons, Baton Rouge, for appellant.
    Robert D. Hamlett, Staff Atty., Dept, of Health & 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, Director of the Dept, of State Civil Service.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The primary issue in this Civil Service Commission appeal is whether or not the appointing authority has proven by a preponderance of the evidence charges sufficient to justify the disciplinary action taken against appellant.

Appellant, David Ferguson, is employed with permanent status as an Auditor IV by the Department of Health and Human Resources (DHHR). This employment requires him to work at various locations in the State for varying lengths of time. During October of 1981 he was assigned to a job site near Lafayette, but failed to report to work from October 20th until November 9th. On or about October 27, 1981, Ferguson, who resides in Baton Rouge, telephoned a co-worker to report he was ill and did not know when he would be able to return. He indicated he was suffering from a reoccurrence of neck and back problems sustained in an automobile accident and requested this information be passed on to Mr. LeGrange, one of his Baton Rouge supervisors. During his absence from work, Ferguson took the State CPA examination on November 4th, 5th and 6th.

When Ferguson returned to work, he submitted a request for sick leave for the entire period of his absence. When the original medical certificate attached to his leave request was deemed insufficient because it made reference only to the date of October 27th, Ferguson obtained a second medical certificate covering the entire period of his absence.

Upon learning Ferguson had taken the CPA exam during his absence, the appointing authority contacted his physician to obtain further information. In a written response to a letter requesting authentication of the dates and signature on the medical certificate submitted by Ferguson, his physician indicated they were authentic. But he also wrote that Ferguson had said he would be fired unless he obtained a signed medical certificate covering the entire period of his absence. Ferguson denied making such a statement to his physician. Additionally, in reply to the specific question of whether or not Ferguson was incapable of performing his job duties on November 4th, 5th and 6th, i.e., the dates on which he took the CPA exam, his physician wrote “not known.”

LeGrange held a meeting with Ferguson on December 11, 1981 to discuss questions which had arisen concerning the period of his absence. LeGrange questioned Ferguson as to why he had failed to comply with an order to report any absences directly to LeGrange. Ferguson denied any memory of such an order. However, the fact that Ferguson had sent a message to LeGrange through another employee that he was ill, is inconsistent with Ferguson’s claim that he had not been ordered to report his absences to LeGrange and that such reporting was not normal procedure.

The propriety of Ferguson claiming sick leave rather than annual leave for time used to take the CPA exam was also discussed. Ferguson’s position was that he could do as he liked with his sick leave. However, he claimed he was still ill when he took the exam. He was unreceptive to the suggestion of changing his request from sick to annual leave for the time spent taking this exam. The meeting culminated in LeGrange verbally suspending Ferguson, pending further investigation of the matter. Only then did Ferguson show any willingness to change his request from sick to annual leave. By this time Ferguson’s manner toward LeGrange was overtly hostile.

Ferguson’s indefinite verbal suspension, pending investigation, was confirmed by letter dated December 22, 1981. Following an investigation, Ferguson was informed by letter dated January 25, 1982 of his suspension without pay for 45 days. Additionally, his request for sick leave was denied and he was put on leave without pay for the entire period of his absence, excluding the one day covered by the original medical certificate submitted. The primary reasons for this disciplinary action were: 1) insubordination in failing to comply with a direct order to report his absence to a particular supervisor, and 2) improperly attempting to use sick leave for purposes other than those authorized by the civil service rules, action considered to be falsification of payroll documents.

Ferguson filed a timely appeal of this disciplinary action with the Civil Service Commission. Following a hearing before a referee, the Commission rendered an opinion upholding the disciplinary action taken by the appointing authority. Ferguson has now appealed to this Court.

Prior to the practice of using referees to conduct hearings, the scope of appellate review in Civil Service Commission cases was basically the same as in other civil matters. Wollerson v. Department of Agriculture, 436 So.2d 1241 (La.App. 1st Cir.1983), writ denied, 441 So.2d 1221 (La. 1983). However a less restrictive standard of review is now applied in cases involving hearings conducted before referees, with the appellate court making an independent review of the record to determine whether the Commission’s conclusions are arbitrary, capricious or manifestly wrong. Woller-son, supra.

Legal cause exists for disciplinary action against a permanent, classified civil service employee whenever that employee’s conduct is detrimental to the efficient and orderly operation of the public service for which he was employed. Thornton v. DHHR, 394 So.2d 1269 (La.App. 1st Cir. 1981). The appointing authority bears the burden of proving such conduct by a preponderance of the evidence, which means the evidence, as a whole, must show the fact sought to be proven as more probable than not. To constitute a preponderance, the evidence must be of a greater weight or more convincing than that offered in opposition thereto. Thornton, supra; Jones v. Dept. of Health & Human Resources, 430 So.2d 1203 (La.App. 1st Cir. 1983).

With respect to the charge of insubordination, LeGrange stated that although it was not normal procedure, he had given Ferguson a direct order to report his absences to LeGrange personally. LeGrange explained this order resulted from an earlier incident in which he experienced a problem locating Ferguson during working hours. It is undisputed Ferguson did not report his absence to LeGrange personally, but rather sent a message through another employee. This action was insufficient to comply with LeGrange’s direct order.

On appeal, Ferguson argues this order was unreasonable and difficult to comply with. We disagree. The importance of a supervisor knowing the location of his employees is patently obvious. Additionally, LeGrange had experienced a previous problem in keeping track of Ferguson’s location. Nor do we believe it would have been unduly difficult for Ferguson to comply with this order. Even though Ferguson was absent from work for nearly three weeks, there is no evidence he made more than one attempt to contact LeGrange. Accordingly, we find the appointing authority has proven its charge of insubordination by a preponderance of the evidence.

The other major charge against Ferguson was that of attempted abuse of sick leave. Under Civil Service Rule 11.13(a) sick leave may be utilized for: 1) illness or injury preventing an employee from performing his usual duties, or 2) medical, dental or optical consultation or treatment. No other uses of sick leave are authorized. Rule 11.14 permits an appointing authority to require a doctor’s statement or other acceptable proof of illness or inability to work. It is the policy of DHHR, the appointing authority herein, to require such a statement when an employee claims sick leave for more than two consecutive days.

Ferguson argues the Commission erred in concluding he was not ill during the period of his absence, without any supporting medical evidence to this effect. We conclude there was sufficient evidence presented by the appointing authority to prove this charge. Although Ferguson submitted a medical certificate upon his return to work, the appointing authority refused to accept it in light of information obtained subsequently which cast doubt upon the accuracy of this certificate and suspicion upon the circumstances under which it was obtained. We conclude this refusal was justified under the circumstances present.

Despite having earlier signed this medical certificate, Ferguson’s own physician later indicated he did not know whether or not Ferguson was capable of performing his job on the dates of the CPA examination. The CPA exam is a particularly difficult and demanding one. The stress it placed upon Ferguson was similar to that encountered in the performance of his usual duties. Considering the evidence as a whole, it preponderates to establish Ferguson was capable of performing his usual job duties on the dates in question. Accordingly, he abused DHHR’s leave policy by attempting to utilize sick leave for time used to take the CPA examination.

Lastly, Ferguson argues the charges against him, even if proven, were insufficient to justify the disciplinary action taken. We disagree. Ferguson’s abuse of leave policy and failure to obey a direct order are actions which, by their very nature, impair the efficient operation of the public service for which he was employed. We find the extremely serious nature of these charges, considered together with the hostile and uncooperative attitude displayed by Ferguson, warranted his 45 day suspension. Additionally, since Ferguson failed to furnish acceptable proof of illness as was required in order to claim sick leave, the appointing authority was justified in placing him on leave without pay, pursuant to Rule 11.27(g), for the period of his unauthorized absence.

Accordingly, from our independent review of the record, we find the Commission’s conclusions were not arbitrary, capricious or manifestly wrong.

AFFIRMED.

      . On this earlier occasion Ferguson left his assigned job site in New Orleans in order to see his doctor in Baton Rouge. LeGrange was aware of this appointment and requested Ferguson notify him as to whether or not he would be able to return to New Orleans. Ferguson did not return to New Orleans for several days. However, he failed to inform LeGrange of this fact. Consequently, LeGrange erroneously assumed Ferguson was on the job in New Orleans.


author: COVINGTON, Judge.

text:
    John Wayne COLLIER, et ux. v. Monty W. FOX, et al.
    No. 83 CA 0765.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Jack M. Dampf, Baton Rouge, for plaintiffs-appellants John Wayne Collier and Carmelite B. Collier.
    Teddy W. Airhart, Jr., Baton Rouge, for defendants-appellees Monty W. Fox and Jo Ann Brooks Fox.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is a suit by plaintiffs, Carmelite B. and John Wayne Collier, to rescind the safe to them of a donut shop business by defendants, Monty W. Fox and Jo Ann Brooks Fox, and for damages for breach of the lease of the building in which the donut shop was located. Also joined as defendants were Donald W. Fox and Katherine W. Fox, lessors of the land used as the donut shop parking lot and on which the donut shop building was located. The Monty Foxes reconvened for the amount due on the promissory note for the credit portion of the sale of the equipment and business, for a utility bill which was incurred by the plaintiffs but paid by the Foxes, and for rent for the building they leased to the plaintiffs. The Monty Foxes brought a separate foreclosure suit and had the equipment in the donut shop sold at sheriff’s sale with benefit of appraisement. In connection with the claim for the balance due on the promissory note, the trial court held that they had failed to prove the amount due on the promissory note, but reserved their right to sue in the foreclosure proceeding for any deficiency. The Donald Foxes reconvened for the balance of the rent due under their lease with the plaintiffs. A third party action was also brought against several other parties, but was dismissed prior to trial. The trial court rejected plaintiffs’ claim for recission of the sale, and rendered judgment in favor of the Monty Foxes for past due rent on the lease of the building and the utility bill. From this judgment, the Colliers appeal.

The trial court, in oral reasons for judgment, found the following facts: On November 3, 1978, the Monty Foxes sold the Colliers a business known as “Fox’s Mary Lee Donut Shop” together with all equipment and supplies in a building situated in East Baton Rouge Parish. Excluded from the sale were, inter alia, a “Mary Lee” sign and a sign in the shape of a donut in front of the premises. In the act of sale the Monty Foxes specifically included the following language: “Vendors further convey the name and good will of Fox’s Mary Lee Donut.” The consideration for the sale was $53,208.00 of which $13,000.00 was paid in cash, and the balance was represented by a promissory note. On January 1, 1979, the Colliers leased from the vendors the building used for the donut shop for a term of three years, and further leased from the Donald Foxes (parents of Monty Fox) the land on which the building and parking lot were situated.

The plaintiffs operated the business for almost two years. They ceased operations in October of 1980, and defaulted on the note and the leases. Thereafter, the Colliers brought suit against the Monty Foxes to rescind the sale on the grounds that the vendors did not have a proprietary interest in the name “Mary Lee Donut” which they conveyed in the act of sale of the business, and on the further ground that they were misled by the Monty Foxes with regard to the potential profits to be earned from the business.

The evidence, including Collier’s testimony, clearly indicates that prior to the sale Monty Fox advised Collier that he did not have a “Mary Lee” franchise, that he merely had the use of the name “Mary Lee” and the signs in front of the donut shop, which were owned by Vic Dunlap, who merchandised the Mary Lee donut mix and other related supplies. Collier was told that the arrangement with Dunlap was to the effect that Monty Fox could retain the use of the name and the two signs as long as Mary Lee products were purchased from Dunlap.

Although the Monty Foxes did not actually have a proprietary interest in the entire name, they had the use of the name. Additionally, neither the Colliers nor the Foxes were ever dispossessed from the use of the name or the signs during the time the donut shop was in operation. Dunlap testified that he had discussions with Collier and that Collier was allowed to continue the use of the name as long as Collier purchased Dunlap’s products. Later, Collier entered into a franchise agreement with Dunlap. The trial court, therefore, held that his claim served no basis for recission of the sale or for the breach of the agreement.

Collier’s second contention was that Monty Fox misrepresented and deceived him as to the profits which could be realized from the business. The trial court concluded that, while Monty Fox may have painted a rosy picture of the profits to be gained in the donut operation, the evidence revealed no effort was made to deceive Collier. Additionally, Collier worked in the business with Monty Fox for about two months, and had complete access to the books and records prior to the sale. Hence, Collier was familiar with the operation of the do-nut shop and knew what he was purchasing prior to the sale.

The next contention concerns the two leases. The Colliers seek to show that they are entitled to damages from both the elder and younger Foxes emanating from their respective leases because the lessors failed to properly maintain the facilities leased to the Colliers. The trial court found that there was no merit in this contention, and dismissed the plaintiffs’ suit to cancel the leases and for damages. The bases of these contentions were Donald Fox’s -failure to grade the parking lot and Monty Fox’s failure to repair the roof and floor of the building. The evidence showed that Monty Fox made the repairs called for by the Colliers and that the lease contained no requirement that the lessors grade the parking lot. On the contrary, the leases specifically provided that the lessors’ only obligation in this respect was to maintain the roof and outside walls of the building. The language of the lease represents the contract between the parties, and they are governed by it. We find no merit in these contentions.

The trial court dismissed plaintiff’s suit based on the factual finding that Collier knew prior to the sale that Monty Fox owned neither the name “Mary Lee Donut” nor the sign with the name “Mary Lee” on the front of the building. The evidence clearly establishes that the Colliers knew what they were buying from the Monty Foxes and that they were not disturbed in or evicted from their possession of the thing purchased.

In their brief, plaintiffs assert that the mere claim of title in a third person constitutes a disturbance of possession under LSA-C.C. arts. 2475 and 2476, which read as follows:

Art. 2475. The seller is bound to two principal obligations, that of delivering and that of warranting the thing which he sells.
Art. 2476. The warranty respecting the seller has two objects; the first is the buyer’s peaceable possession of the thing sold, and the second is the hidden defects of the thing sold or its redhibitory vices.

Our courts have interpreted these codal provisions in the light of the knowledge of the buyer. Byrne v. Ortte, 33 So.2d 209 (La.App.Orl.1948). Where the buyer knows that the seller’s title is imperfect, he cannot call the seller in warranty in the event of eviction. In the present case, it is clear that the vendors disclosed, and the purchasers understood, that the name “Mary Lee” belonged to another, but that the vendors had the right to use this name under certain conditions. The vendors conveyed this right of use and the Colliers enjoyed the use of the name without disturbance and under the same conditions imposed on the Monty Foxes. Thus, there never occurred a disturbance of possession.

Plaintiff's second assignment of error concerns the reservation to the Monty Foxes, of their right to seek a deficiency judgment against the Colliers for the balance owed on the promissory note representing the credit portion of the sale price. The facts surrounding this aspect of the case are: In answer to plaintiffs’ petition, the Monty Foxes reconvened for the unpaid balance of this note and for an order for executory process to seize and sell the property mortgaged to secure payment of the note. The trial judge refused to sign the order for executory process, so the Monty Foxes brought an executory proceeding in a separate suit. The property was sold in due course with benefit of appraisal. The record of that proceeding was introduced in this case. As stated, the trial judge reserved their right to proceed in the other case. The plaintiffs complain that the Monty Foxes are not entitled to another chance to prove their case, since they failed to do so the first time. There is no merit to this complaint. The trial judge dismissed the reconventional demand in the manner of a non-suit, reserving the right to plaintiffs to pursue their claim in a separate suit.

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

AFFIRMED.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Ronald BOURGEOIS.
    No. 83 KA 1124.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Walter K. Naquin, Louis Thad Toups, Asst. Dist. Attys., Thibodaux, for plaintiff State of La.
    Marjorie K. Patin, Thibodaux, for defendant Ronald Bourgeois.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Ronald Bourgeois, was charged with simple kidnapping, a violation of LSA R.S. 14:45, in connection with the abduction of a convenience store clerk. A jury convicted defendant as charged, and he was subsequently sentenced to five years at hard labor. After sentencing, defendant filed a motion for a new trial, based upon allegedly ineffective counsel, and the court ordered a hearing on the motion. The motion was denied after a full hearing, and the State served notice of its intent to file a multiple offender proceeding. Defendant was found to be an habitual offender; the court vacated the five year sentence previously rendered and imposed a ten year sentence.

Although defendant has alleged three assignments of error on appeal, defendant’s second assignment of error was not briefed and is therefore considered abandoned. Uniform Rules of the Courts of Appeal, Rule 2-12.4.

In his first assignment of error, defendant argues that the eourt erred in denying his motion for a directed verdict because the State failed to prove evidence sufficient to constitute the crime of simple kidnapping.

We note initially that defendant was not entitled to a directed verdict of acquittal because the matter was tried to a jury. State v. Allen, 440 So.2d 1330 (La.1983); LSA C.Cr.P. art. 778. This court has held that the proper procedural mechanism to raise the issue of the sufficiency of the evidence is by a motion for a post verdict judgment of acquittal. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Nevertheless, even though defendant did not properly raise the issue below, the critical Constitutional issues implicit in defendant’s allegations compel us to consider the merits of defendant’s claim. Accordingly, we have reviewed the record herein to determine whether the evidence, viewed in a light most favorable to the State, supports a verdict of guilty. LSA C.Cr.P. art. 821. We find defendant’s argument totally without merit, and his conviction wholly supported by the evidence.

Two convenience store customers testified at trial that they observed the abduction of the clerk, saw a knife in the abductor’s hand, and then signaled to two nearby deputies as the defendant attempted his escape by car. The two deputies who followed the defendant’s car testified that they had had the defendant’s car under surveillance prior to and at the time of the abduction, and that they never lost sight of the subject car until it was stopped and the defendant was arrested. Other evidence presented at trial included the testimony of the victim herself, who narrated the events and positively identified the defendant. Accordingly, we conclude that the jury was completely justified in its finding that the elements of this crime were proven beyond a reasonable doubt.

In his final assignment of error, defendant argues that the trial court erred in denying defendant’s motion for a new trial, alleging ineffective representation by his court appointed lawyer.

A claim of ineffective counsel is more properly raised by an application for a writ of habeas corpus in the district court where a full evidentiary hearing may be conducted. State v. Craddock, 435 So.2d 1110. (La.App. 1st Cir.1983). Where the record discloses evidence needed to decide the issue of ineffective assistance of counsel and that issue was raised by assignment of error on appeal, the issue may be addressed in the interest of judicial economy. State v. Seiss, 428 So.2d 444 (La.1983); State v. Ratcliff, 416 So.2d 528 (La.1982).

In the case herein, as in Ratcliff, supra, the allegation was initially raised by a motion for a new trial, and a hearing was conducted in the district court, wherein the evidence regarding the allegation was developed in sufficient detail for this court to review.

The standard for effective assistance of counsel was enunciated by the Louisiana Supreme Court in State v. Berry, 430 So.2d 1005, at 1007 (La.1983):

Defendants in criminal trials are entitled to effective assistance of counsel under the Sixth Amendment to the United States Constitution and Art. 1, § 13 of the Louisiana Constitution. “Effective assistance” is difficult to define. Louisiana requires that counsel “meet the level of competency normally demanded in criminal cases.” State v. Felde, 422 So.2d 370 at 393 (La.1982). This is essentially the standard enunciated in McMann v. Richard, 397 U.S. 759 at 771, 90 S.Ct. 1441 at 1449, 25 L.Ed.2d 763 at 773 (1970).

In this regard, our Supreme Court has further stated that,

Effective counsel %as been defined to mean “not errorless counsel, and not counsel judged ineffective by hindsight, but counsel reasonably likely to render and rendering reasonably effective assistance.” United States v. Fruge, 495 F.2d 557 (5th Cir.1974). Accord: United States v. Johnson, 615 F.2d 1125 (5th Cir.1980).

State v. Ratcliff, 416 So.2d 528, at 531 (La.1982).

Relative to his motion for a new trial, defendant had alleged in a pre-sentence investigation that he had not met his lawyer prior to trial. The evidence adduced at the hearing on the motion for a new trial indicated that defendant had met with counsel prior to trial; in fact, defendant himself testified with regard to two meetings prior to trial. Although defense counsel now alleges that the trial counsel conducted no investigation into the facts of the case, and that trial counsel did not discuss possible defenses with defendant prior to trial, both trial counsel and the State testified that the trial counsel reviewed the entire file on the matter and discussed the case at length with the prosecuting attorney. More importantly, defendant did not allege nor show any prejudice to his case or the existence of any exculpatory evidence not presented at trial.

The district court which presided over defendant’s trial considered and denied his motion for a new trial. Any doubts that defendant had not been effectively represented were satisfied at the hearing. The record does not substantiate defendant’s claim of ineffective counsel.

The decision of the trial court on a motion for a new trial is accorded great discretion and its ruling will not be disturbed on appeal in the absence of a clear showing of abuse of discretion. State v. Quimby, 419 So.2d 951 (La.1982). No abuse of discretion is presented herein. The trial court properly rejected defendant’s claim of ineffective counsel in denying his motion for a new trial.

For the foregoing reasons, we affirm the decision of the trial court.

AFFIRMED.

      . Our Supreme Court, in Allen, supra, states that the issue is properly presented either by a motion for a post verdict judgment of acquittal or by a motion for a new trial. 440 So.2d at 1332. In any event, a motion for a directed verdict of acquittal is not correct.


text:
    STATE of Louisiana v. Tyrone ANDREWS.
    No. 83 KA 1160.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    R. Judge Eames, Baton Rouge, William J. Guste, Jr., Atty. Gen., New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Tyrone Andrews, was charged by bill of information with having committed an aggravated battery in violation of LSA-R.S. 14:34 during the course of a disturbance outside the football stadium at Zachary High School in East Baton Rouge Parish on the night of October 8, 1982. Defendant entered a plea of not guilty, was tried by a six-person jury, and found guilty as charged. He was subsequently sentenced to incarceration at hard labor for a period of five years and now appeals his conviction and sentence, alleging fourteen assignments of error.

ASSIGNMENT OF ERROR NO. 1:

Defendant contends that the trial court committed error when it allowed the prosecution to use peremptory challenges to systematically exclude blacks from the jury over defense counsel’s objections.

A defendant is not denied equal protection when the state uses peremptory challenges to exclude blacks from the jury unless there is a systematic exclusion over a period of time. State v. Brown, 371 So.2d 751 (La.1979). The burden is on the defendant to establish a prima facie showing of such exclusion. State v. Williams, 442 So.2d 740 (La.App. 1st Cir.1983). A showing by the defense that peremptory challenges were used to exclude blacks in a particular case is not sufficient to establish a violation of the Fourteenth Amendment Equal Protection Clause. Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).

At trial, during early voir dire, the State used two of its peremptory challenges exempting two blacks. In response, defense counsel objected and moved for a mistrial on the ground of systematic exclusion of blacks. Defense counsel then used two of defendant’s peremptory challenges saying, “I must exercise peremptory challenges to clear the balance of the panel and try again.” As voir dire continued, the State used three more of its peremptory challenges. Each time defense counsel objected on the same grounds. However, defendant has made no further showing of any pattern of systematic exclusion of blacks over a period of time, neither at trial nor in brief.

Defendant does not tell us what the final composition of the jury was in this case, nor does the record so reveal. Moreover, we have examined the voir dire and find no evidence of exclusion on racial grounds of persons from the jury by the State. The trial judge was correct in allowing the prosecution to exercise its peremptory challenges in this case.

There is no merit to this assignment of error.

ASSIGNMENTS OF ERROR NOS. 3 AND 8:

Defendant alleges that the trial court erred when it denied defendant’s request to dim the lights in the courtroom to recreate and demonstrate for the jury the lighting conditions at the time of the alleged incident. Defendant also contends that because of the poor lighting conditions at the scene of the incident the identification of defendant by an eye witness to the crime was unreliable and thus defendant’s out-of-court identification held a significant chance of misidentification.

LSA-R.S. 15:435 provides that evidence must be relevant to a material issue at trial before it is to be introduced. Furthermore, much discretion is vested in the trial judge in questions of relevancy. State v. Walker, 344 So.2d 990 (La.1977).

At trial, during cross examination of the victim, defense counsel offered to dim the lights in the courtroom in an effort to recreate the scene of the crime. The State objected on the grounds that such demonstration was irrelevant to the matter at hand.

The victim’s testimony, which had already been admitted, was that it was dark at the time he was stabbed and he could not identify his assailant. At the time it made its objection, the State agreed to stipulate that it was dark. Although defense counsel seemed to accept the stipulation, he again reiterated his request to dim the lights, which was denied by the trial judge with the comment that the demonstration might be relevant to the testimony of another witness but here defense counsel has not shown sufficient relevance to the testimony at hand. We find no abuse of the trial judge’s wide discretion by this ruling. The offer of demonstrative evidence was properly denied at that time.

Subsequently at trial, defense counsel again requested to be allowed to demonstrate the lighting conditions at the scene of the crime by dimming the lights in the courtroom. This second request was made during the cross-examination of State’s witness, Craig Whittington, who had been present at the scene of the crime. Defense counsel’s request was granted over objection by the State. The lights were dimmed in the courtroom to the point at which witness Whittington agreed was the degree of darkness at the scene of the crime.

Prior to the demonstration witness Whit-tington had identified one of the participants in the fight, Thaddeus Jones, and had also testified to the color and kind of clothes defendant was wearing at the time of the incident. Therefore, the issue of degree of darkness was relevant to witness Whittington’s testimony and defense counsel’s demonstration was properly admitted into evidence at that time.

In sum, there was ample evidence before the jury to make sufficiently clear the lighting conditions under which the witnesses at the crime scene had observed the incidents and the participants therein.

We must next determine likelihood of misidentification of defendant. In so doing, the evidence must be weighed in the light of the factors indicating reliability as set forth in Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1979) and restated in State v. Clark, 437 So.2d 879 (La.App. 2nd Cir.1983), writ denied, 442 So.2d 460 (1983), where the court held that an identification procedure is reliable if the following factors are met: 1) the opportunity of the witness to view the criminal at the time of the crime; 2) the witness’ degree of attention; 3) the accuracy of the witness’ prior description of the criminal; 4) the witness’ degree of certainty; 5) the time between the crime and the confrontation.

Applying the Manson analysis to the instant case reveals:

1) The opportunity of the witness to view the criminal at -the time of the crime: The witness who identified defendant had ample light to view the participants including defendant in the incident and were sufficiently close to accurately notice details of clothing and physical features.

2) The witness’ degree of attention: The witnesses were not casual or passing observers but were directly involved in the fracas.

3) The accuracy of the witness’ prior description of the criminal: Each identifying witness noted the same details and accurately described the same persons viewed and confronted at the police station as the ones involved in the crime.

4) The witnesses’ level of certainty: Each identifying witness had no hesitancy in identifying defendant either in-court or out-of-court.

5) The time between the crime and the confrontation: The out-of-court identification of defendant took place at the police station within 2 to 2½ hours following the crime.

It is clear in this case that the Manson criteria have been met. Thus the out-of-court identification of defendant was based upon reliable testimony with no significant chance of misidentification.

There is no merit to these assignments of error.

ASSIGNMENT OF ERROR NO. 12:

Defendant complains that the trial court’s failure to find Act 527 of 1975 unconstitutional, which is now LSA-C.Cr.P. art. 778, deprives the accused of moving for a directed verdict in jury trials when there is no evidence in the record to support a conviction. Therefore, defendant argues, Act 527 is unconstitutional as it is in direct conflict with the due process clause of the Louisiana Constitution of 1974 and the Fourteenth Amendment of the United States Constitution.

LSA-C.Cr.P. art. 778 as enacted by Act 527 of 1975, provides:

In a trial by the judge alone the court shall enter a judgment of acquittal on one or more of the offenses charged, on its own motion or on that of defendant, after the close of the state’s evidence or of all the evidence, if the evidence is insufficient to sustain a conviction. If the court denies a defendant’s motion for a judgment of acquittal at the close of the state’s case, the defendant may offer its evidence in defense.

Under LSA-C.Cr.P. 778, the trial judge has no authority to grant a directed verdict in a jury trial. State v. Smith, 414 So.2d 1237 (La.1982).

The authority to grant a directed verdict of acquittal in a bench trial under LSA-C.Cr.P. art. 778 is strictly a procedural matter and, as such, no substantive rights of defendant are affected by a change in law which affects only procedural matters. State v. Gardette, 352 So.2d 212, 214 (La.1977). As defendant has no vested or absolute right in procedural matters, such matters are subject to legislative control, hence the elimination of the authority of the court to grant a directed verdict of acquittal in a jury trial is not a denial of defendant’s due process rights. State v. Clark, 340 So.2d 208 (La.1976), cert. denied, 430 U.S. 936, 97 S.Ct. 1563, 51 L.Ed.2d 782 (La.1976). Further, in State v. Gardette, supra, the amendment in question was held to be constitutional on other grounds.

Thus defendant’s contention that defendant was denied his due process rights by the application of the 1975 amendment to LSA-C.Cr.P. art. 778 has no merit.

ASSIGNMENT OF ERROR NO. 13:

Defendant contends that the trial court abused its discretion when it imposed an excessive sentence on defendant, arguing that, as defendant was a first felony offender, the trial judge failed to recognize defendant’s potential for rehabilitation through correctional services other than confinement.

Defendant was sentenced to five years at hard labor. The maximum sentence possible following conviction for aggravated battery under LSA-R.S. 14:34 (supra) is confinement at hard labor for a period not to exceed ten years and a fine not to exceed $5,000.00. Defendant’s sentence is actually less than half the maximum possible.

Although a sentence is within the statutory limits, it can still be excessive in a particular case. State v. Sepulvado, 367 So.2d 762 (La.1979). However, a sentence will not be overturned on review if the record reveals that the trial judge adequately considered the sentencing guidelines and tailored the sentence to fit the crime and the criminal. State v. Telsee, 425 So.2d 1251, 1253 (La.1983).

Our review of the transcript of the sentencing hearing convinces us the trial judge considered the fact that defendant had had only two prior convictions for driving while intoxicated. However, the trial judge noted that the action of defendant in stabbing the victim herein could have resulted in death and, further, that the Division of Probation and Parole recommended confinement. The trial judge felt that there was an undue risk that, during the period of suspended sentence or probation, defendant would commit another crime.

The trial judge has adequately complied with the sentencing guidelines set forth in LSA-C.Cr.P. 894.1. The sentence imposed is not excessive considering the circumstances of this case.

There is no merit to this assignment of error.

ASSIGNMENT OF ERROR NO. 14:

Defendant contends that the trial court erred when it denied defendant’s motion for directed verdict, arguing that the State failed to prove the elements of the crime beyond a reasonable doubt. Specifically, defendant contends that no proof was offered of the use of a dangerous weapon and that no witness of the State could identify the accused as the assailant.

LSA-R.S. 14:34, aggravated battery, provides:

Aggravated battery is a battery committed with a dangerous weapon.
Whoever commits an aggravated battery shall be fined not more than five thousand dollars, imprisoned with or without hard labor for not more than ten years, or both.

The “dangerous weapon” for purposes of LSA-R.S. 14:34 includes an instrumentality, which in the manner in which it is used, is calculated or likely to produce death or great bodily harm. State In the Interest of Ruschel, 411 So.2d 1216 (La.App. 4th Cir.1982).

By Acts 1982 No. 144, now LSA-C. Cr.P. art. 821, the Legislature has provided a vehicle for a convicted defendant to seek review of his conviction on the basis of insufficiency of the evidence. State v. Korman, 439 So.2d 1099 (La.App. 1st Cir. 1983). Further, in State v. Allen, 440 So.2d 1330 (La.1983), the Louisiana Supreme Court held that the correct vehicle for asserting that the State failed to prove essential elements of the crime charged is a motion for post-verdict judgment of acquittal under art. 821 or motion for new trial. Defendant herein did not file either of such motions; however, in brief he has alleged insufficiency of the evidence to find defendant guilty and requested that this court review the evidence offered by the State. Therefore, we have reviewed the evidence in the record before us on appeal under C.Cr.P. 821 and find that, when viewed in the light most favorable to the prosecution, the State has proved all elements of the crime charged. The State has presented evidence of an eye witness to the crime proving that defendant stabbed the victim with the jagged edge of the neck of a broken bottle. Further, that eye witness positively identified defendant as the perpetrator of the crime.

The State has sufficiently proved the elements.necessary to find defendant guilty of aggravated battery.

This assignment of error has no merit.

Having found no merit in any of the assignments of error affected by defendant, this court is of the opinion that thp finding of the trial court and the sentence imposed be affirmed.

AFFIRMED.

      . In his brief, defendant has not argued Assignments of Error Nos. 2, 4, 5, 6, 7, 9, 10, 11; therefore, they are considered abandoned. Rule 2-12.4, Uniform Rules-Courts of Appeal.


text:
    STATE of Louisiana v. Sandra BISSETT.
    No. 83 KA 1256.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Robert Talley, Baton Rouge, William J. Guste, Jr., Atty. Gen., State of La., New Orleans, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Sandra Bissett, was charged by bill of information with one count each of disturbing the peace, resisting an officer, and simple battery. The instant charges were based on violations of LSA-R.S. 14:103, Subd. A(2), 14:108, and 14:35, respectively. Defendant was tried without a jury. The trial judge found defendant guilty as charged on counts I and II, and acquitted defendant on the charge of simple battery, count III. The court sentenced Ms. Bissett on each count adjudged guilty to confinement in parish prison for six months, to pay a fine of $50.00 and to pay all court costs. The court suspended execution of the sentence and placed the defendant on unsupervised probation for a period of six months with the condition that she neither be involved in any criminal activity nor convicted of any criminal offenses during the probationary period. Defendant has appealed alleging three assignments of error:

1. The court erred in denying defendant’s request for a jury trial.
2. The court erred in restricting defense witness’ testimony relative to the character of defendant.
3. The court erred by convicting defendant on counts I and II, as there was insufficient evidence to support the verdict.

On the night of September 5, 1982, defendant sought medical treatment at the emergency room facility of Lane Memorial Hospital. Frustrated at her inability to receive the medical attention she thought necessary, defendant created a disturbance in the emergency room waiting area by using loud, abusive, and profane language directed toward various doctors, nurses, and clerks then on duty. When the disturbance did not abate, a Zachary police officer on security assignment at the hospital was summoned to the scene by hospital personnel.

The police officer observed defendant’s continuing course of conduct, identified himself to defendant, and ordered her to leave the facility. After two such requests, defendant, followed by the police officer, left the hospital building, continuing her tirade as she exited.

Defendant remained in her parked vehicle for several more minutes before the police officer again ordered defendant to leave the hospital grounds. In response, defendant verbally threatened the officer, who thereafter advised defendant that she was being placed under arrest. Rather than submitting to the arrest, defendant raced her vehicle from the hospital parking area.

Counts I and II of the information derive from defendant’s conduct at Lane Memorial Hospital. Count III is based on allegations of police officers who later brought defendant into custody and transported her for processing. Since defendant was acquitted on Count III, we need not concern ourselves with those events.

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant assigns as error the court’s failure to grant a motion for jury trial filed on her behalf five days prior to the assignment trial date. Defendant argues that she never effectively waived her right to trial by jury.

The record reflects that counsel for the defendant appeared, on her behalf, and waived formal arraignment and entered a plea of not guilty in absentia. Defense counsel also waived trial by jury. The trial court’s ruling denying defendant’s motion to reinstate a jury trial cited the waiver noted in the October 27, 1983, minute entry and the fact that the matter had been set for trial during a non-jury week.

Although the right to a jury trial may be waived in a non-capital case, Article I, § 17 of the Louisiana Constitution requires that the waiver be “knowingly and intelligently” made. Therefore, we must indulge every reasonable presumption against waiver of this fundamental right, State v. McCarroll, 337 So.2d 475, 480 (La.1976).

When a decision is made to opt for a judge trial rather than a jury trial, our courts have expressly rejected a rule which would require the trial judge to personally inform defendant of his right to trial by jury. State v. Kakey, 436 So.2d 475 (La.1983) and State v. Muller, 351 So.2d 143 (La.1977).

In the instant case, the record is silent as to whether defendant knowingly and intelligently waived trial by jury. The minute entry of October 27, 1982, shows that defendant was not present in open court on the day of the arraignment wfvn defense counsel put of record the waiver of trial by jury. However, when a defendant does not appear in open court at arraignment, some indication of record as to a manifestation of an effective waiver is required. Muller, supra.

Since defendant did not file a motion in arrest of judgment in accordance with La.C.Cr.P. art. 859(4), no evidentiary hearing with respect to this issue has been held. Accordingly, we remand this case to the trial court for an evidentiary hearing on the question of whether or not defendant knowingly and intelligently waived her right to trial by jury.

ASSIGNMENT OP ERROR NUMBER 2:

Defendant contends that the trial judge erred in sustaining the State’s objection to the following question propounded to defense witness, Pam Bergeron, during direct examination:

In your past experience with Ms. Bissett have you ever noticed that she has any proclivity to be violent at any time?

LSA R.S. 15:479 provides:

Character, whether good or bad, depends upon the general reputation that a man has among his neighbors, not upon what particular persons think of him.

In the instant case, the defense counsel attempted to elicit.a specific and personal opinion from the defense witness concerning the defendant’s proclivity toward violence. Such a question was not designed to elicit a response concerning general reputation. As such, it was prop-, erly excluded.

The record reveals that the defense witness was thereafter permitted to testify, in accordance with La.R.S. art. 15:480, that defendant had an excellent reputation with her neighbors for her ability to get along with other people. Hence defendant was successful in securing the desired character evidence.

Assignment of error number 2 accordingly lacks merit.

ASSIGNMENT OF ERROR NUMBER 3:

As her final assignment of error, defendant contends that the evidence presented was insufficient to support her conviction on the charges of disturbing the peace and resisting an officer.

Defendant’s conviction cannot stand, unless viewing the evidence in the light most favorable to this prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. LSA C.Cr.P. art. 821(B). Applying this standard to the instant case, we conclude that the evidence is sufficient and supports the conviction on each count.

LSA-R.S. 14:103 provides in pertinent part:

A. Disturbing the peace is the doing of any of the following in such manner as would foreseeably disturb or alarm the public:
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name; or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty;

At defendant’s trial, Deputy Chaisson testified that he personally observed the defendant in the emergency room and hallways of Lane Memorial Hospital screaming and cursing, in a boisterous and provocative manner, at hospital personnel and at an individual entering that facility. He further testified that defendant continued this course of conduct while in the parking lot of the hospital, directing abusive language and a threat of physical violence, toward Deputy Chaisson, himself.

In addition, the substance of defendant’s tirade, which threatened vengeance against hospital personnel, was foreseeably disquieting and/or alarming to the public. State v. Heck, 307 So.2d 332 (La.1975).

LSA R.S. 14:108 provides in pertinent part:

Resisting an officer is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity, and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process or court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.

Again, the evidence supporting conviction of this charge is founded on testimony of Deputy Chaisson.

Deputy Chaisson continued his testimony by saying that he informed the defendant, while both were in the hospital parking lot, that she was under arrest after her persistent conduct of harrassing people at the hospital. The deputy further testified that he was an officially uniformed, duly commissioned law enforcement officer at the time of his confrontation with defendant.

In view of our findings with respect to count I, we conclude that Deputy Chaisson had probable cause to arrest defendant for disturbing the peace. Defendant was, therefore, without any right to resist the arrest. State In Interest of Lewis, 386 So.2d 1079 (La.App. 3rd Cir.1980).

That defendant did in fact resist an officer is finally evidenced by her driving from the hospital parking lot before Deputy Chaisson could restrain her.

This assignment of error lacks merit.

We note, ex proprio motu, an error patent on the face of the record which requires that the sentence imposed on count I, LSA R.S. 14:103 subd. A(2) be annulled and set aside. The trial judge sentenced defendant thereon to six months imprisonment although the statutory maximum period of imprisonment is not more than ninety days.

While we affirm defendant’s conviction, we vacate the sentence as to count I and remand for re-sentencing. We remand the case to the trial court for an evidentiary hearing on the question of whether or not defendant knowingly and intelligently waived her right to trial by jury. If defendant should receive an unfavorable ruling on that issue, we reserve to defendant her right to appeal her conviction once more to this court.

CONVICTION AFFIRMED, SENTENCE VACATED AS TO COUNT I AND CASE REMANDED.

      . That defendant had a right to trial by jury is not disputed. Where two or more charges are joined for trial the right to a jury must be determined by the total punishment which may be imposed in that case. State v. McCarroll, 337 So.2d 475, 480 (La.1976).

      . Each charge brought against defendant was a misdemeanor and her presence was not necessary at arraignment. Plea of not guilty could be properly entered through her counsel. La.C. Cr.P. art. 833.

      . Although post-trial motion in arrest of judgment was not filed, the issue was properly preserved for review on direct appeal. See, La.C. Cr.P. art. 920.

      . Should an effective waiver be found, the issue of whether the court abused its discretion in denying the motion which sought reinstatement of a jury trial, would be addressed. Our code of criminal procedure is silent on the subject of a defendant's revocation of his jury trial waiver. The Official Revision Comments note that such matters are handled under the general authority of courts to regulate their business. La.C.Cr.P. art. 780, Official Revision Comment (d); State v. Cantanese, 385 So.2d 235, 237 (La.1980).
      "In exercising his discretion ... the trial judge should balance the legitimate interests of the prosecutor and the court against the defendant’s fundamental interest in the safeguard of a trial by jury.” State v. Catanese, supra at 237. In the instant case, balancing the respective interests weighs heavily against granting a revocation of the jury waiver.

        Defendant did not file her request until five days before trial; a ruling on the merits of the motion was not urged by defense counsel until the morning of the scheduled trial. Some seven months elapsed from the arraignment in October of 1982 until the trial in May of 1983; and the May 25, 1983, trial date was known by defendant as early as February of 1983. Further in reliance on the waiver, the matter was set for a non-jury week. The prosecution had assembled all of its witnesses for the scheduled date. Because of the foregoing factors, granting of the defendant's motion would have interfered with the orderly administration of the business of the court and would have resulted in unnecessary delay and inconvenience to the witnesses. See, State v. Catanese, supra, at 237. Additionally, we note that defendant failed to appear for the original trial scheduled in January of 1983. Accordingly, the court did not abuse its discretion in denying defendant’s motion for reinstatement of a jury trial.