author: AUGUSTINE, Judge.

text:
    Ethel M. BENDER v. SCHWEGMANN BROS. GIANT SUPERMARKET, INCORPORATED.
    No. CA-1230.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 7, 1984.
    W. Keith Hurtt, Jr., Metairie, for plaintiff-appellee.
    Ralph S. Johnson, New Orleans, for defendant-appellant.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   AUGUSTINE, Judge.

Plaintiff Ethel M. Bender brought this action for damages against Schwegmann Brothers Giant Supermarkets, Inc. on the allegation that the defendant’s employees falsely arrested her on July 5, 1982. The case was tried before a twelve-member jury and the defendant was found liable in the amount of $9,000.00. Schwegmann now brings this appeal, urging reversal on the question of liability and, alternatively, contending that the damages awarded to the plaintiff were excessive. For the following reasons, we affirm the judgment.

False arrest and imprisonment occur when one arrests or restrains another against his will without a warrant or other statutory authority, Kyle v. City of New Orleans, 353 So.2d 969 (La.1977), and it is fundamental that custodial arrest of a shoplifter by a merchant is without statutory authority unless predicated upon reasonable cause to believe that the arrestee has committed theft. La.C.Cr.Pro.Art. 215.

Thus, the primary issue in this case is largely a factual one:

Did the defendant’s security guard have reasonable cause to arrest the plaintiff on July 5, 1982?

The jury did not think so, and the defendant’s liability must therefore be affirmed unless the jury’s determination is manifestly erroneous. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). See also Johnson v. Schwegmann Bros., 397 So.2d 868 (La.App. 4th Cir.1981). Where the outcome at trial turns on the credibility of witnesses, appellate courts are reluctant to substitute their own judgment for that of the jury. Such is the case here.

According to the defendant, when plaintiff Bender entered the Schwegmann store shortly before 8:30 a.m. on July 5, 1982, she began disturbing store personnel and other customers by talking in a “loud and boisterous” manner. One of Schweg-mann’s security guards, Bobby Bridges, believed her to be a certain Edna Hahn, whom he had arrested for shoplifting two months earlier. The store manager, Robert Snyder, thought he recognized Bender as one who had caused disturbances in the supermarket on several previous occasions. As these Schwegmann witnesses testified, Bridges approached Bender and told her to leave the store because of the earlier arrest for shoplifting. As a result, the plaintiff became louder and refused to leave. When Bridges threatened to call the police, the plaintiff responded, “Send me to jail.” Bridges and Snyder then escorted Bender to the security office, where she was detained until New Orleans police arrived a short time later. The plaintiff was then placed in the rear of a marked police car and driven to Central Lock-Up, where she was booked on a charge of trespassing.

The plaintiff’s version of this episode is radically different. She contends that she has never created a disturbance in the store, that she has never shoplifted, and that she was not acting in a boisterous or disruptive manner on the day she was arrested. Bender also specifically denied having been asked to leave the store, and she contends that she was arrested immediately and without warning solely because, as security guard Bridges told her, she was believed to be Edna Hahn, who had been told to never return to Schwegmann’s because of a shoplifting incident in early May.

In resolving this dispute, we note that Schwegmann does not seriously contend that the plaintiff is the same Edna Hahn who had been arrested for shoplifting on May 6, and we are satisfied that Schweg-mann’s security guard and manager were mistaken in thinking that she was. The appellant contends, however, that Bender was not arrested because of shoplifting, but because she refused to leave the store when requested to do so. Appellant contends that Schwegmann’s employees had an unqualified right to demand that Bender leave the premises, and that Bender’s refusal furnished independent grounds to arrest her for criminal trespass under La.R.S. 14:63.3.

Faced with a similar contention in State v. Johnson, 381 So.2d 498 (La.1980), the Supreme Court of Louisiana stated that

“(T)he statute under review (La.R.S. 14:63.3, criminal trespass) makes it an offense merely to remain on the premises of another following a request to leave even though the party asked to leave is creating no distrubance and his intentions may be entirely peaceable and lawful. Pursuant to the statute, the mere whim or wish of the owner that the other party leave, for any reason, or no reason whatsoever, gives rise to the offense if this request to leave is unheeded.” Id. at 500.

In the present case, however, Bender explicitly denied having been told or requested to leave the Schwegmann store on July 5. The verdict in her favor signifies that the jury believed her account of the incident rather than that told by Schwegmann’s employees. Bender’s testimony is not demonstrably false; we cannot say that the jury committed manifest error in believing her. Accordingly, we must affirm the finding of liability.

We also affirm the judgment with respect to quantum. As our Supreme Court stated in Coco v. Winston, Industries, Inc., 341 So.2d 332, 335 (La.1976), “before a Court of Appeal can disturb an award made by a trial court ... the record must clearly reveal that the trier of fact abused its discretion in making its award.” (Emphasis supplied). See also Reck v. Stevens, 373 So.2d 498 (La.1979).

We find no clear abuse of discretion in the present case. Accepting Bender’s account as true, the defendant’s employees subjected the plaintiff to rudeness and public indignities at the time of her arrest. Moreover, talk of Bender’s arrest was spread throughout her neighborhood, where she enjoys a good reputation for law-abiding conduct and community service. The consequent embarrassment and humiliation before her peers is a remediable harm in this action. Hughes v. Standidge, 219 So.2d 6 (La.App. 4th Cir.1969).

In addition, the incident aggravated a pre-existent nervous condition for which Bender had already been on medication. She testified that for many weeks following her July 5 arrest, she experienced extreme nervousness and had great difficulty in falling asleep.

Considering all of the above in addition to the fundamental harm — wrongful deprivation of liberty — we do not think the jury clearly abused its discretion in awarding the plaintiff $9,000.00.

For the reasons assigned, the judgment is affirmed in all respects.

AFFIRMED.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Halbert J. WILSON.
    No. KA-1241.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

The defendant, Halbert Wilson was convicted of armed robbery, a violation of LSA-R.S. 14:64 and was sentenced to 99 years at hard labor, the maximum permissible sentence under the statute. Wilson appeals from that conviction. We affirm.

The victim of the robbery, Kent Stratton was visiting New Orleans for a business convention. He met the defendant in the French Quarter. After visiting several bars together, Wilson asked Stratton for a ride to his apartment. Stratton drove Wilson home whereupon Stratton asked Wilson if he could use the bathroom. The two men proceeded to the rear of the building and walked up the rear stairwell. As they approached Wilson’s apartment he stated that the lock did not work properly and that he would use another entrance and let Stratton in the rear door. Wilson left Stratton standing in the hall. A few minutes later Wilson returned and pointed a gun at Stratton and demanded that Strat-ton give him his jewelry and wallet. Wilson threatened to kill Stratton if he did not cooperate. As Wilson searched Stratton’s clothes for more money, the police arrived and placed Wilson under arrest.

Wilson’s only assignment of error is that the sentence imposed is excessive. It is well settled that “the imposition of a sentence although within the statutory limit, may violate a defendant’s constitutional rights against excessive punishment that is enforceable by this Court on appellate review of his conviction.” State v. Sepulvado, 367 So.2d 762 (La.1979). With respect to the appropriate standards for that review, the Sepulvado court further stated that:

... the statutory criteria legislatively provided by La.C.Cr.P. Art. 894.1 (1977), which are similar to those evolved by courts in other' American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.

367 So.2d 762 at 769.

Therefore in order to determine whether the sentence was excessive we must determine whether the trial court complied with the 894.1 sentencing guidelines. In that regard the case of State v. Douglas, 389 So.2d 1263 (La.1980) is instructive.

In Douglas, the Louisiana Supreme Court upheld a sentence of ninety-nine years. The circumstances of the armed robbery in Douglas were no more heinous than those in the instant case. The defendant in Douglas had three prior felony convictions: two for simple robbery and one for possession of heroin. In Douglas the trial court’s reasons for the sentencing were as follows: “Okay the court has satisfied itself with having looked at the rap sheet of the defendant, and the previous convictions involved in this man’s criminal history, and the court is satisfied that Mr. Douglas is, in the court’s opinion, an incorrigible, violent criminal ...”

In affirming the trial court’s sentence in Douglas the Supreme Court stated,

This record does not reflect any abuse of discretion which mandates interference by the appellate court in the sentencing process. Rather, one can plainly see that the trial court’s sentence was founded on non-arbitrary considerations based on record facts. The danger that defendant will continue to perpetrate dangerous felonies, if not institutionalized for an extensive period, is obvious. Furthermore, defendant apparently presented no mitigating facts to the trial court, and none were apparent from the circumstances of the case. While defendant urges that the sentence was excessive, any factors weighing in favor of a lesser sentence were not presented to the trial court and have not been argued on appeal.

389 So.2d 1263 at 1267.

We can see little difference between the instant case and Douglas. Wilson also has an extensive arrest record. He was previously convicted of criminal trespass, possession of stolen property, soliciting for prostitution and theft. In sentencing Wilson the trial judge noted the defendant’s criminal record and stated “I am convinced that there is only one sentence that will keep you from hurting other people ... You are progressively getting worse and worse.”

Given the similarities between Douglas and the case at bar we cannot say the sentence imposed was excessive or that the trial judge failed to follow the guidelines set forth by La.C.Cr.P. Art. 894.1 (1977).

In addition, we have reviewed the record for sufficiency of evidence to support the appellant’s conviction. State v. Shapiro, 431 So.2d 372 (La.1982). We find that viewing the evidence in the light most favorable to the state, a rational finder of fact could have found that every element of armed robbery had been proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

For the foregoing reasons the conviction and sentence are hereby affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Erica DABNEY.
    No. KA-1367.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 1984.

      Jasper N. Pharr, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty.,. New Orleans, for plaintiff-appellee.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

Defendant Erica Dabney was arrested on January 14,1983 and subsequently charged by bill of information with possession of pentazocine with intent to distribute, a violation of LSA-R.S. 40:967(A)(1). Following a trial by jury, the defendant was found guilty as charged and was sentenced to serve four years at hard labor without benefit of probation, parole or suspension of sentence. Defendant now brings this appeal. Finding merit to appellants’ second assignment of error, we reverse and remand for further proceedings.

During trial of this matter, the State presented the expert testimony of a narcotics officer to establish the defendant’s specific intent to distribute the “Ts and blues” found in her possession at the time of her arrest:

Q. (By the prosecutor):
“As an expert working under cover, m a person who is in possession of 60 sets of Ts and Blues, would you say from your experience they possessed the Ts and Blues for their personal use?”
A. (By the expert witness):
“No”.

Given that the above passage followed immediately on the heels of the expert’s testimony concerning the packaging and marketing of “Ts and blues” by wholesale and retail distributors, the above question and response was equivalent to a direct statement by the expert that the defendant possessed the drugs with the intent to distribute.

Such testimony on the ultimate issue of fact is tantamount to an opinion that the defendant is guilty of the charge.

In State v. Wheeler, 416 So.2d 78 (La.1982), State v. Montana, 421 So.2d 895 (La.1982), and the recent case of State v. White, 450 So.2d 648 (1984), the Louisiana Supreme Court condemned the use of such testimony as a usurpation of the jury’s function. We find the same error in the present case, and because there is a reasonable possibility that the error contributed to the . finding of guilt, we must reverse. State v. Gibson, 391 So.2d 421 (La.1980).

DECREE

For the foregoing reasons, the conviction is reversed, the sentence is set aside, and the case is remanded to the district court for retrial.

REVERSED and REMANDED.

WILLIAMS, J., concurs.


text:
    STATE of Louisiana v. C.J. JACKSON.
    No. KA-1481.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Stephen P. Bruno, Bruno & Bruno, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

On the night of March 7, 1983, while on routine patrol in the vicinity of a New Orleans housing project, Officers Rattler and Singleton of the New Orleans Police Department observed a young man riding a bicycle in front of their unmarked automobile. They stopped him, patted him down, and recovered a .22 caliber pistol from his right rear pocket. A computer check disclosed that the arrestee, C.J. Jackson, had been convicted of a felony. Thereafter, the defendant was formally charged under La. R.S. 14:95.1, relative to possession of a firearm by a convicted felon.

At Jackson’s trial, a jury of twelve convicted the defendant of attempted possession of a firearm, whereupon the court sentenced Jackson to serve eighteen months at hard labor and ordered him to pay a fine of $500.00.

By this appeal, Jackson challenges his conviction on the basis of two assignments of error.

FIRST ASSIGNMENT OF ERROR

The appellant contends that the weapon seized at the time of his arrest should have been suppressed in accordance with his pretrial motion because Officers Rattler and Singleton had no reasonable grounds to believe that criminal activity was afoot prior to stopping him. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Scott, 412 So.2d 988 (La.1982); La.C.Cr.Pro. Art. 215.1.

At the hearing of the motion to suppress evidence and at trial on the merits, Officer Rattler testified that as Jackson rode his bicycle in the beam of the police car’s headlights on the night of March 7, he could see, from a distance of about ten feet, the imprint of what appeared to be a handgun in Jackson’s right rear pocket. Rattler alerted his partner to this fact, and they stopped the defendant. The ensuing frisk of Jackson’s pocket led to the seizure of a .22 caliber pistol.

Officers Singleton and Rattler admitted in testimony that the defendant, insofar as he was merely riding a bicycle, was engaged in purely innocent behavior.

On the basis of that admission, the defendant contends that the officers had no articulable reason to suspect him of criminal conduct, and therefore, no grounds for a stop and frisk. Defendant Jackson also insists that the officers could not have been able to determine whether the imprint which they saw in Jackson’s pocket was that of a gun. By this second argument, defendant asks this court to reverse his conviction on the basis of an erroneous factual determination by the trial judge. We shall address this point first.

It is a cardinal principle of criminal appellate review that a district court’s pretrial findings of fact involving the credibility of witnesses are entitled to great weight and will not be disturbed in the absence of a clear abuse of discretion. State v. Yarbrough, 418 So.2d 503 (La.1982); State v. Robinson, 386 So.2d 1374 (La.1980); State v. Dunbar, 356 So.2d 956 (La.1978).

We find no such abuse of the trial court’s discretion in this case. To overcome the Fourth Amendment challenge to the stop and frisk, it was sufficient for the State to prove that the officers entertained a reasonable suspicion that the imprint which they observed was that of a concealed gun. La.C.Cr.Pro. Art. 215.1. Given that Jackson was in the police car’s headlights at a distance of only ten feet, the trial court did not clearly err in finding that the officers believed they saw the imprint of a gun, nor did the court clearly err in finding that the officers’ suspicions were reasonable.

What has been said thus far disposes of the appellant’s first argument as well, for if the officers had a reasonable belief that the defendant was in possession of a concealed weapon, it is immaterial that his behavior was innocent in all other respects — it is a crime to carry a concealed weapon, La.R.S. 14:95, and upon being reasonably suspected of that crime, the defendant was subject to a legal stop and frisk. La.C.Cr.Pro. Art. 215.1.

We therefore find no merit to appellant’s first assignment of error.

SECOND ASSIGNMENT OF ERROR

By this assignment, appellant contends that a new trial must be granted because the prosecutor, in closing argument, misstated the law concerning the defense of justification. It is alleged that the prosecutor erred in telling the jury that such a defense is not available to a convicted felon who possesses a firearm.

During trial on the merits, appellant’s wife testified that on the morning of Jackson’s arrest, she had walked their children to school, and that upon returning home, she discovered that someone had attempted to burglarize the Jackson residence; screws had been removed from an outer door. Appellants’ wife testified that “they are always breaking in.” Tr. 19.

Appellant’s mother testified that later that night, Jackson came to her house to borrow her pistol in order to protect himself and his family against any further burglaries. Appellant contends that he was arrested shortly after leaving his mother’s house with her gun.

We find no merit to appellant’s second assignment of error. The only conceivable basis for justification in this case is provided by La.R.S. 14:18(7):

Justification; general provisions

The fact that an offender’s conduct is justifiable, although otherwise criminal, shall constitute a defense to prosecution for any crime based on that conduct. This defense of justification can be claimed under the following circumstances:
(7) When the offender’s conduct is in defense of persons or of property under any of the circumstances described in Articles 19 through 22.

Of the Articles referred to above, that which is most favorable to the defendant is Article 19:

The use of force or violence upon the person of another is justifiable, when committed for the purpose of preventing a forcible offense against the person or a forcible offense or trespass against property in a person’s lawful possession; provided that the force or violence used must be reasonable and apparently necessary to prevent such offense, and that this article shall not apply where the force or violence results in a homicide. (Emphasis added).

Assuming that the above provision does justify a convicted felon’s use of a firearm to defend himself or his property against unprovoked force by another, the provision clearly has no application to the case at bar; for even if a finder of fact were to believe every particle of testimony offered to support the defense of justification, there has been no showing by the defendant that his possession of the firearm was necessary.

“Necessity”, when raised as a defense to the illegal possession of a firearm, entails proof that the threat of force by another is imminent and apparent, and that the person threatened has no reasonable alternative but to possess the firearm.

Defendant’s witnesses did not establish either the immediacy of a threat of force against his family home or the lack of reasonable alternatives to his possession of the handgun. We note, too, that Jackson did not possess the weapon while in his own home, but while riding a bicycle on a public street. His possession of the pistol at that time cannot have been necessary to the defense of his home and family.

Thus, assuming that the prosecutor erred in his remarks concerning the general applicability of justification as a defense to R.S. 14:95.1, such error was harmless— as a matter of law, justification was not an available defense in this case.

For the reasons assigned, the defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . Art. 215.1. Temporary questioning of persons in public places; frisk and search for weapons.
      A. A law enforcement officer may stop a person in a public place whom he reasonably suspects is committing, has committed, or is about to commit an offense and may demand of him his name, address, and an explanation of his actions.
      B. When a law enforcement officer has stopped a person for questioning pursuant to this Article and reasonably suspects that he is in danger, he may frisk the outer clothing of such person for a dangerous weapon. If the law enforcement officer reasonably suspects the person possesses a dangerous weapon, he may search the person.
      C.If the law enforcement officer finds a dangerous weapon, he may take and keep it until the completion of the questioning, at which time he shall either return it, if lawfully possessed, or arrest such person.

      . It is axiomatic that reasonable cause for an investigatory stop is something less than probable cause and must be determined under the facts of each case by whether the officer had sufficient knowledge of facts and circumstances to justify an infringement on the individual's right to be free from governmental interference. State v. Belton, 441 So.2d 1195 (La.1984); State v. Andrishok, 434 So.2d 389 (La.1983); State v. Chopin, 372 So.2d 1222 (La.1979).


author: AUGUSTINE, Judge. LOBRANO, Judge,

text:
    ASSOCIATED EXECUTIVE CONTROL, INC. v. BANKERS UNION LIFE INSURANCE COMPANY.
    No. 12912.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 1984.
    Rehearing Denied July 24, 1984.
    Harry McCall, Jr., L. Havard Scott, III, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for plaintiff-appellant.
    J. Brooeks Greer, III, New Orleans, for defendant-appellee.
    Before REDMANN, and AUGUSTINE and LOBRANO, JJ.
   ON REMAND FROM SUPREME COURT

AUGUSTINE, Judge.

The plaintiff, Associated Executive Control, Inc., filed this suit against Bankers Union Life Insurance Company to recover $50,000 due under a “finder’s fee” agreement. By the terms of that agreement, signed by both parties to this suit on January 30, 1974, Bankers promised to pay to A.E.C.

“a consulting, finding and servicing fee totalling $50,000.00 in the event that a sale is consummated for all of the stock of Security Guaranty Life Insurance Company which is owned by Bankers ... in the event that you (A.E.C.) are a moving force in the consummation of a transaction which is acceptable in the full and absolute discretion and approval of Bankers Union Life Insurance Company.”

A.E.C.’s principal contention is that although the sale of Security Guarantee Life Insurance Company stock was never consummated, having found a buyer for the entire stock of Security Guarantee Life Insurance Co., the fee is now due. A.E.C. claims that the sole reason for the transaction’s failure was Bankers’ last-minute insistence that the buyer repudiate A.E.C.’s efforts in negotiating the sale, a repudiation which the buyer could not and would not make in good faith.

Bankers denied these allegations, contending that the broker repudiation clause was not the sole cause of the transaction’s failure, and that there were other irreconcilable differences which prevented a meeting of minds between the buyer and Bankers.

The trial court rendered judgment in A.E.C.’s favor, based upon the specific finding that Banker’s insistence on the buyer’s repudiation of A.E.C. as the “moving force” of the transaction was the sole reason for the buyer’s refusal to go forward with the deal. Bankers appeals. We affirm.

The only issue raised by this appeal is whether the trial court erred in finding that the broker repudiation clause was the sole cause of the transaction’s failure.

The record reveals the following:

After signing the “finders fee” agreement of January 30, 1974, A.E.C.’s director, F.D.V. deLaBarre, contacted an associate named Darrel Jordan, a businessman whose own dealings were among entrepreneurs who might be interested in the purchase of a small insurance company such as Security Guaranty. Jordan knew a Mississippian named Roland Smith who was already interested in acquiring such a company, and when Jordan informed him of the availability of Security Guaranty’s stock, Smith expressed a definite interest in purchasing it.

DeLaBarre enlisted Jordan as his agent on behalf of A.E.C., and in the ensuing months, Jordan conducted extensive negotiations with Bankers on Smith’s behalf, advising each as to the other’s financial position and conveying the various arrangements to be made, all of this with a view to consummating the sale of stock. DeLa-Barre supervised Jordan’s activities and held frequent conferences with Smith as the negotiations developed.

On February 5, 1975, Bankers mailed to Jordan for Smith’s signature a written contract for the sale of Security Guaranty’s stock. Smith signed the agreement, and on April 14, 1975, Jordan travelled to Bankers’ home office in Denver, Colorado to deliver the signed document and to obtain Bankers’ signature. On behalf of Smith, Jordan was prepared to tender earnest money in the form of a cashier’s check payable to Bankers in the amount of $10,000.00.

Bankers, however, neither signed the contract nor accepted Smith’s earnest money. As it was explained to Jordan at that time, Bankers’ lawyers had determined that the contract required some minor revisions; the final agreement would be forwarded to New Orleans for closing. Jordan left Denver with the earnest money and Bankers’ promise to submit a revised contract in the next few weeks.

On April 25, 1975, Jordan received the revised contract, styled a “Stock Purchase Agreement,” containing the revisions which Bankers’ attorneys had drafted since the meeting in Denver. Among those changes was the following clause which caused buyer Smith to abort the transaction:

Buyer represents that he has not retained or used the services of any finder or broker or agreed to pay any finder’s or brokerage fee, commission or other compensation to any person on account of the transaction contemplated by this Agreement, except for the firm of Ola-gues, Jordan & Company, and Richard Troendle. Buyer agrees to pay any valid claim for such fee, commission or other compensation of such parties and of any other person employed or used by Buyer in connection with the transaction contemplated by this Agreement and to indemnify, defend and save Seller harmless from any such claim based upon any such arrangements that may exist between Smith and such parties. Buyer further represents that he has not had any dealings with, nor has he been influenced by, the firm of Associates Executive Control, Inc., 1501 American Bank Building, New Orleans, Louisiana, or any of its agents, or F.D.V. deLaBarre in connection with the transaction contemplated by this Agreement. On the basis of such representation, Seller agrees to pay any valid claim of Associates Executive Control, Inc. or F.D.V. deLaBarre for a finder’s or brokerage fee, commission or other compensation on account of Seller’s dealings with such persons in connection with the transaction contemplated by this Agreement and to indemnify, defend and save Buyer harmless from any such claim. (Emphasis added).

The most compelling evidence for A.E. C.’s contention that the broker repudiation clause alone caused the sale to collapse is found in the testimony of the prospective buyer himself. Roland Smith stated unequivocally that but for Bankers’ insistence on the above provision, he would have gone forward with the purchase of Security Guaranty’s stock, and that although other changes which Bankers injected into the contract after Jordan’s trip to Denver were not wholly satisfactory to him, these alterations posed no real bar to consummating the sale. Smith explained, further, that he refused to sign the contract containing the questioned clause because he knew it to be false and because he feared legal reprisal by A.E.C.

The trial court placed great reliance on Smith’s testimony in reaching the determination that “the sole reason that the sale was not consummated was due to the conditions imposed by Bankers at the last minute requiring the prospective purchaser to represent contrary to the true facts that he had no deals with nor had been influenced by Associated.” Reasons for Judgment, p. 2.

Bankers offers several reasons for rejecting Smith’s testimony, however. Appellant emphasizes that there were several differences between the proposal of February 5 (to which Smith had agreed and which Jordan delivered in Denver) and that of April 24 (which contains the questioned clause). Bankers argues that these differences, and not the repudiation clause, were responsible for Smith’s refusal to consummate the sale of stock. Banker’s points primarily to a clause in the contract which allowed Bankers to retain its interest in unrelated litigation which had been previously filed by Bankers and its subsidiary, Security Guaranty, against F.D.V. deLa-Barre.

We cannot agree with Bankers. Aside from the testimony of Smith that the only reason that the deal was not consummated in April was the repudiation clause, there is additional testimony to that effect from Charles Roth. Roth was chairman of the Board of Bankers during the time the sale of Security Guarantee was being negotiated with Smith. Roth also testified that the only reason the sale of Security Guarantee was not consummated in April of 1975 was Rusty Smith’s refusal to repudiate A.E.C.’s efforts in negotiating the sale.

Given that principals on both sides of the transaction testified that the sale was not completed because of Smith’s refusal to repudiate A.E.C. we must conclude that the trial court was correct in its judgment.

We also approve the trial court’s finding that the defendant is entitled to offset in the amount of $12,338.89.

For the foregoing reasons the judgment of the trial court is hereby affirmed.

LOBRANO, J., dissents and will assign reasons.

LOBRANO, Judge,

dissenting.

I respectfully dissent from the majority’s holding in this case. I am of the opinion that the so called “broker repudiation clause” was not the reason for the sale not going through. The evidence substantiates other reasons for its failure. The most noteworthly reason concerned the changes which allowed Bankers to retain its interest in certain unrelated litigation which was pending at the time. The parties continued negotiations until September, 1975, some five months after the insertion of the repudiation clause. Jordan’s letter of May 20, 1975 to Bankers’ general counsel sums up the numerous other obstacles to the sale.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Tyrone GAYDEN and Vernadine Avery.
    No. KA-1630.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 11, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Frank Larre, New Orleans, for defendants-appellants.
    Before REDMANN, AUGUSTINE and WILLIAMS, JJ.
   WILLIAMS, Judge.

Defendants Vernadine Avery and Tyrone Gayden were convicted of attempted armed robbery. Defendant Avery was sentenced to serve twenty-five years in the custody of the Department of Corrections, and defendant Gayden to serve twenty, as habitual offenders (LSA-R.S. 15:529.1). Both defendants appeal requesting a review of their convictions and sentences for errors patent and a review of the record for sufficiency of the evidence.

The evidence presented at trial established that Reed Bonzell and a friend were walking home from a tavern at about 1:30 a.m. on February 26, 1983, when two strangers who had been following them for some time began harrassing Bonzell and making sexual advances at him. His friend flagged down a car and left. When Bon-zell got to his apartment building he pounded on the door to a ground-floor apartment, calling for help. The two strangers pinned him against the door and the woman squeezed his testicles. When he pushed the woman away, the man was behind him. Bonzell received several blows and fell to the ground. He felt hands rifling through his pockets. Bonzell’s upstairs neighbor, Walter Hale, had been awakened by Bon-zell’s cries for help and saw the entire incident through his window. When he yelled at them to stop, they threw a bottle at Bonzell, hitting him in the jaw, and fled. Officers Wayne Varuso and Joseph Lorenzo arrived and were approached by Bonzell, who was bleeding from his left arm. Bon-zell’s description of his assailants matched that of two individuals the officers had seen just before reaching the scene of the crime. The officers arrested defendants Avery and Gayden two blocks away. A large knife was protruding from Gayden’s knapsack, and a second knife was found on Avery. The officers brought Avery and Gayden back to the scene of the crime, and both Bonzell and Hale positively identified them. The officers then realized Bonzell had been stabbed, and summoned an emergency unit. At the hospital, Bonzell realized he had lost either two or three twenty dollar bills.

A review of the record indicates one error patent. The defendants’ sentences were required to be “without benefit of parole, probation or suspension of sentence.” LSA-R.S. 14:64, 14:27. Their sentences did not reflect the statutorily mandated ineligibility for benefits and should be amended to conform with the provisions of the statutes under which the defendants were convicted.

In State v. Telsee, 425 So.2d 1251 (La.1983), the Louisiana Supreme Court held that the defendant’s sentence was “unlawfully lenient” because it failed to specify that the defendant would be ineligible for parole, probation or suspension for the two year period mandated by the statute under which the defendant was convicted (LSA-R.S. 14:42.1, forcible rape). The sentence was amended to withdraw those benefits for two years.

The Supreme Court then contradicted Telsee by refusing to allow the amendment of a sentence to deny benefits of parole, probation or suspension in conformance with the statute under which the defendant was convicted. The court explained:

[W]hen the defendant alone seeks review of a conviction and sentence, the court of appeal should review only those issues raised by the defendant and any patent errors favorable to defendant. The court of appeal erred in this case by reviewing a sentencing error unfavorable to defendant, thereby providing a chilling effect on defendant’s exercise of his right to appeal.

State v. Napoli, 437 So.2d 868 (La.1983). It is difficult to see how the correction of an illegal sentence by an appellate court could have a chilling effect on a defendant’s exercise of his right to appeal. An illegal sentence may be corrected at any time by the court that imposed the sentence. La.C.Cr.P. art. 882. The appellate court is not penalizing the defendant, but only assuring that his sentence will conform to the terms of the statute under which he was convicted.

In State v. Jackson, 439 So.2d 622 (La. App. 1st Cir.1983), writ granted in part and denied in part, 443 So.2d 1123, the First Circuit followed Telsee, an opinion rendered after a full-fledged appeal, rather than the more recent Napoli decision, which was only a per curiam ruling on a writ application. This court followed the October, 1983, decision of the First Circuit with several opinions similarly electing Tel-see in lieu of Napoli. State v. Dixon, 442 So.2d 840 (La.App. 4th Cir.1983); State v. Lee, 445 So.2d 54 (La.App. 4th Cir.1984); State v. Lodge, 447 So.2d 88 (La.App. 4th Cir.1984).

On January 6, 1984, the Louisiana Supreme Court granted writs to the First Circuit’s decision in State v. Jackson, supra. Pending resolution of the matter we will continue to follow Telsee and therefore amend the defendant’s sentence to provide that he shall be ineligible for the benefit of parole, probation or suspension for the initial year of his sentence.

We have also reviewed the record to assess the sufficiency of the evidence.

“Armed robbery is the taking of anything of value belonging to another from the person of another or that is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.” LSA-R.S. 14:64.
“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishment of his object is guilty of an attempt to commit the offense intended ...” LSA-R.S. 14:27.

Upon viewing the evidence in the light most favorable to the prosecution, we find that a rational trier of fact could have concluded that the essential elements of the crime of attempted armed robbery were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Edwards, 400 So.2d 1370 (La.1981).

For the foregoing reasons, the convictions of the defendants are affirmed and the sentences imposed by the trial court are amended to provide that they shall be served without benefit of parole, probation or suspension of sentence.

AFFIRMED AS AMENDED.

      . In State v. Irvin McCoy, 450 So.2d 690 (La. App. 4th Cir.1984), the court expressly overruled those cases holding that an unlawfully lenient sentence cannot be corrected on appeal, and amended the defendant’s sentence to provide for the penalties required by law.


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. Gregory NATA and Wade Manger.
    No. KA 0781.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for the State.
    Dwight Doskey, New Orleans, for defendant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Appealing from his conviction for simple burglary, defendant Manger complains of the trial court’s failure to grant a mistrial. Defendant’s motion for mistrial was based on the state’s failure to have disclosed in pre-trial discovery a statement that defendant made to a security guard when apprehended inside the coin-operated laundry room of an apartment complex. The guard testified concerning the substance of that statement at trial. Its substance (that defendant claimed to be a cigarette machine company employee checking the cigarette machine) conflicted with the defense evidence that defendant had gone to the laundry room to buy cigarettes from the machine.

The defendant’s oral statement’s “existence, but not the contents” (and “when, where and to whom ... made”) should have been disclosed on plaintiff’s motion, La.C.Cr.P. 716 B. The state erred in failing to disclose its existence and the statutorily required details. The state did report that a “res gestae” statement had been made by co-defendant Nata. That suggests that the state was in good faith. The state’s good faith, however, would not justify denying an appropriate remedy under C.Cr.P. 729.5 A, in any case in which the state’s noncompliance (even in good faith) resulted in basic unfairness to the defendant; State v. Davis, 399 So.2d 1168 (La.1981).

We are unable, on the facts of this case, to envision any significant unfairness to defendant from not being told of the existence of his statement to the guard when apprehended. Defendant argues that he had to recall other state witnesses “in an effort to impeach the security guard’s story [, objectionable because their] recall would in great part bolster the state’s case by allowing the state to ask leading questions _” We do not see how the knowledge of the existence of the statement would have changed defendant’s need to counter it (and the statute is clear the defendant was not entitled to “the contents” of the statement). If defendant already knew of its existence, he cannot have been hurt (save by relying on the expectation it would not be put in evidence, treated hereafter); if defendant did not remember having made the statement or any of its contents (e.g., because drunk when he made it), defendant would gain nothing from being informed of its “existence, but not [its] contents.” Thus, in either case, defendant would not ordinarily be harmed by the state’s failure to disclose the statement’s existence.

The most we can suppose is that defendant, if he had forgotten that he made a statement at the time of his apprehension resulting in his arrest, might have “relied” on the state’s reporting it had no statement by himself and therefore concluded that he could invent any story he pleased without fear of contradicting any earlier statement. But that is not the purpose of any exclusionary rule, for even illegally-obtained evidence is admissible for impeachment purposes; Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954); Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971); Oregon v. Hass, 420 U.S. 714, 95 S.Ct. 1215, 43 L.Ed.2d 570 (1975); United States v. Havens, 446 U.S. 620, 100 S.Ct. 1912, 64 L.Ed.2d 559 (1980). Havens, 100 S.Ct. at 1916, noting the purpose of arriving at the truth and the obligation of witnesses to testify truthfully, declared that Harris “rejected the notion that the defendant’s constitutional shield against having illegally seized evidence used against him could be ‘perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.’ ”

We conclude that the state’s error (probably in good faith, from confusing the two defendants) in failing to disclose the existence of defendant’s statement, and the use of that statement at trial, did not deprive defendant of a fair trial.

Affirmed.


text:
    STATE of Louisiana v. David BLATCHER.
    No. KA 1154.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for the State.
    Craig Colwart, New Orleans, for defendant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Defendant appeals the overruling of his objection to the district court’s jurisdiction and his 20-year sentence on a guilty plea to aggravated burglary.

The jurisdictional plea — based on defendant’s age of 16 years at the time of the offense — is fully answered in State v. Penque, 439 So.2d 1060 (La.1983).

The 20-year sentence is not excessive. Defendant burglarized a church rectory where he had earlier resided. When one of the priests caught defendant in the act of burglary, defendant slashed the man’s mouth on both sides of his face and also slashed his throat with a knife.

In brief, “defendant concedes that his prior juvenile record (burglary of a business, robbery by purse snatching, and simple escape), and the circumstances of his present offense, may have justified ... a substantial sentence of imprisonment.” But defendant argues it excessive to impose two-thirds of the maximum sentence of 30 years because in effect based on “concluding that at the age of 16, this first adult felony offender has no chance of rehabilitation,” and because disproportionate to the five-year sentence of his co-burglar in juvenile court.

We disagree. Defendant is among the worst of first-offender aggravated burglars, and deserves a sentence towards the maximum. Defendant’s argument tracks State v. Dean, 438 So.2d 213 (La.1983), where a 17-year-old was sentenced to 65 years while his companion was sentenced to only 15 years “for the same degree of culpability.” There was not the same degree of culpability in our case because the co-burglar did not slash the victim’s face and throat. And our trial judge, unlike that in Dean, never uttered words like “no chance of rehabilitation”; he spoke only of the “severity of this incident” of “very violent crime.”

Affirmed.


text:
    STATE of Louisiana v. Nathaniel JONES.
    No. KA 1290.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for the State.
    Dwight Doskey, Numa V. Bertel, Jr., New Orleans, for defendant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Defendant’s appeal argues only the ex-cessiveness of his 24-year maximum sentence, asserting that he is not among the worst offenders, State v. Oubichon, 422 So.2d 1140 (La. 1982).

The present offense, simple burglary of an inhabited dwelling, R.S. 14:62.2, was committed while the householder was away. The state billed defendant as a second offender, reciting only a 1980 conviction for simple burglary, R.S. 14:62 (i.e. not of an inhabited dwelling). At the sentencing hearing, the unsworn (but uncontested) assertion by an assistant district attorney is that defendant had other convictions: for unauthorized use of a movable in 1966 (when 13 or 14 years old); resisting arrest in “1973 and 1974” (when about 21 or 22); attempted theft in 1975 (when 22 or 23).

Defendant is certainly not the least offender (whose sentence would be four years). But he is also not the worst, and therefore the maximum sentence is excessive for him. See, e.g., State v. Guajardo, 428 So.2d 468 (La.1983); State v. Clark, 414 So.2d 369 (La.1982); and State v. Brown, 410 So.2d 1043 (La.1982).

The sentence is therefore set aside and the matter is remanded for resentencing.


text:
    In re ROY, MULCHIN AND FEDERLINE (A Medical Corporation), petitioning for dissolution etc.
    No. CA 1353.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    Writ Denied Oct. 5, 1984.

      James E. Stovall, Jackson & Stovall, New Orleans, for Dr. Michael J. Federline.
    Ronald J. Favre, New Orleans, for Dr. Walter L. Mulchin.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

This appeal asserts a medical corporation’s claim against its president for notifying a hospital of nonrenewal of the corporation’s contract with the hospital to supply emergency services, and then entering into a substitute contract with the hospital to supply those services through another medical corporation. The trial court dismissed the action and we affirm.

The hospital contract provided automatic renewal every year unless nonrenewal was notified in writing by either party 60 days before its anniversary. Automatic renewals had added four years to the contract’s original term of one year. The contract also provided that the “Corporation will require that Dr. Walter Mulchin under this contract provide medical direction which includes all of the medical and administrative responsibility necessary to the fulfillment of this contract and represent the Mulchin and Federline, A Medical Corporation in its relationship with the Hospital.”

The hospital contract thus could not be performed without Dr. Mulchin’s providing his personal services. Evidently, if Dr. Mulchin had the right to decline to work any longer for the corporation (or otherwise with Dr. Federline), he had the right (if not the obligation to the corporation, which in turn had the obligation to the hospital) to notify the hospital that he would no longer work for the corporation and therefore the corporation could no longer provide his services after the end of the current contract year. Our question therefore becomes whether any contractual obligation to the corporation or Dr. Feder-line deprived Dr. Mulchin of the freedom to quit working for the corporation and with Dr. Federline.

The basic written agreement between Dr. Mulchin and Dr. Federline provided that the two physicians “shall both execute an employment contract with the corporation containing the usual terms and conditions, including a restriction against outside employment or medical practice without the consent of the corporation.” In fact no formal employment contract was ever executed, and there is no evidence of “the usual terms and conditions,” nor of any agreement upon any specific period during which Dr. Mulchin was to work with Dr. Federline or for the corporation to be formed.

Dr. Mulchin thus never expressly or impliedly bound himself for any determinate period of time to work for the corporation or merely with Dr. Federline. La.C.C. 2050 does imply a reasonable term “from the nature of the act” when none is specified, and we might agree that by signing the contract with the hospital Dr. Mulchin impliedly agreed to work for the corporation or with Dr. Federline for the year of that contract. We might similarly conclude that he impliedly agreed to work for each of the successive one-year renewals of the contract (and he has in fact done so). But we find no evidence in this record that would justify holding that Dr. Mulchin expressly or impliedly obliged himself to a personal services contract for a term in excess of five years.

Affirmed.

WILLIAMS, J., dissents.


text:
    STATE of Louisiana v. Frederick BROWN.
    No. KA 1826.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., William R. Campbell, Jr., Susan Scott Hunt, Asst. Dist. Attys., New Orleans, for the State.
    Deana Greengus, Student Practitioner, Elizabeth Cole, New Orleans, for defendant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

Defendant appeals from his conviction for manslaughter and his sentence as a second offender to 42 years at hard labor.

Defendant was convicted, notwithstanding his claim of self-defense, on testimony by one witness who saw him shoot and kill the victim, and testified the victim did not move or reach for a weapon before being shot; testimony of another witness who could see the victim from around the corner, heard the shots and saw the victim fall, and saw defendant run away; testimony of another witness who reported the victim’s dying declaration that defendant was his killer; and testimony of the arresting police officer that defendant then said nothing about self-defense but that he killed the victim for not returning borrowed jewelry.

Defendant’s first three assignments argue that it was error for the trial court to refuse to order production of the police report and of prior recorded statements of the state’s witnesses, for inspection (at least by the trial judge in chambers) for material favorable to the defense, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant makes the logical argument that, because he cannot know what is in the report and statements he has not seen, he cannot be “specific” in his requests. That logical argument, however, would support a conclusion that, in every case in which inspection is requested, the court ought to order at least in camera inspection, and that is not the law; United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); State v. Smith, 437 So.2d 252 (La.1983). Yet where, as here, a claim of self-defense is present, in-chambers inspection has been ordered because of a request no more specific than one for pre-trial statements of state witnesses, in State v. Davenport, 399 So.2d 201 (La.1981). We conclude Davenport controls this case, and that the trial judge erred in failing to conduct on defendant’s request an in-chambers inspection of the report and statements for material inconsistencies and exculpatory matter.

(Assignment four and several others are treated in an appendix not designated for publication.)

Assignment nine — that it was error not to instruct the jury on the mandatory penalty for the offense charged (second degree murder), State v. Hooks, 421 So.2d 880 (La.1982) — is academic because defendant was not convicted of that offense but of manslaughter.

Assignment ten complains of the trial judge’s refusal to add to his instructions that “Once the defendant pleads self defense, the burden of proof does not shift to the defendant to prove to your satisfaction and beyond a reasonable doubt that the killing was justifiable. The State, which brings the charge, must prove to your entire satisfaction and beyond a reasonable doubt that the killing was not in self defense and, therefore, the defendant was guilty.” The trial judge began his charge with the instruction that “a defendant is presumed to be innocent until he is proved guilty beyond a reasonable doubt. The consequence of this rule of law is, he is not required to prove his innocence, but may rest upon the presumption in his favor until it is overthrown by positive affirmative proof. The onus, therefore is on the state to establish to your satisfaction, and beyond a reasonable doubt the guilt of the accused as to the crime charged in the indictment, or any lesser one included in it. If you entertain any reasonable doubt as to any fact or element necessary to constitute the defendant’s guilt, it is your sworn duty to give him the benefit of that doubt, and return a verdict of not guilty. Even where the evidence demonstrates a probability of guilt, yet if it does not establish it beyond a reasonable doubt, you must acquit the accused.” We also note the instruction on provocation as possibly reducing murder to manslaughter — the verdict actually returned — as joining with the quoted instruction and the self-defense instruction to constitute an overall charge that we conclude jurors of ordinary intelligence would understand to place the burden always on the state to establish every necessary fact beyond a reasonable doubt, including, in view of the claim of self-defense, that the killing was not in self-defense. We conclude that defendant’s requested charge, while a probably correct statement of law, State v. Lynch, 436 So.2d 567 (La.1983), was included in the trial judge’s charge.

Assignment 13 complains of the maximum, 42-year sentence for manslaughter by a second offender. We agree with the trial judge’s apparent position that the record justifies categorizing defendant among the worst of persons guilty of “manslaughter.” Defendant claimed to feel fear of the victim, having had some running (and nonviolent) dispute with the victim over a chain and earring that defendant loaned him. Defendant therefore, on seeing the victim at the bar where the killing occurred, left the bar to go to the automobile of the friend who drove him there to retrieve his pistol, loaded the pistol, returned to the bar (to return the friend’s car keys, he said), and there shot the victim four times (and misfired a fifth time) because, he testified, he saw out of the corner of his eye that the victim was making some move he interpreted as threatening. Moreover, defendant testified he always kept his pistol with him, suggesting that he would present danger of similar behavior in the future. We conclude that the record supports the maximum sentence.

We therefore conditionally affirm the conviction and sentence, but as in State v. Davenport, 399 So.2d 201 (La.1981), we remand for the trial judge to conduct an in-chambers inspection of the requested police report and the pre-trial statements of the state witnesses (including the one who did not testify) for material inconsistencies and exculpatory material, reserving to the trial court the authority to grant a new trial on the basis of its findings and also reserving the defendant’s right to appeal from any adverse ruling by the trial court.


text:
    Mr. & Mrs. Anthony C. LICAUSI v. TULLIS TOWNEHOMES OF TALL TIMBERS, INC.
    No. C 2113.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    Roy Cheatwood, Andrew Braun, Nancy Scott Degan, New Orleans, for Relator.
    Jacob Taranto, III, New Orleans, for respondent.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

We granted certiorari, in this redhibitory action by purchasers against the builder of a house, to review the district court’s order that plaintiffs make the house available to defendant so that the builder might remedy the defects on which plaintiffs base their claim for redhibition.

We reverse that ruling. La.C.C. 2531 provides that the “seller who knew not the vices of the thing” is not obliged to return the purchase price unless he fails to correct the vices, and therefore implies an obligation upon the buyer to allow the good-faith seller to correct the vices. But C.C. 2545 contains no such limit on the obligation of the “seller, who knows the vice of the thing he sells and omits to declare it.”

The manufacturer of a defective thing is charged with knowledge of its defects, Media Pro. Consult, Inc. v. Mercedes-Benz of N.A., Inc., 262 La. 80, 262 So.2d 377 (La.1972). The builder-seller of a building is its manufacturer, charged with knowledge of its defects, and the builder-seller’s liability is governed by C.C. 2545 rather than C.C. 2531, Cox v. Moore, 367 So.2d 424 (La.App. 2 Cir.1979), writ denied 369 So.2d 1634.

The ruling complained of is reversed and the matter remanded.


author: GARRISON, Judge.

text:
    Peter S. GIUFFRIA v. RED RIVER BARGE LINES, INC. and Elevating Boats, Inc.
    No. CA 1640.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    Writ Denied Oct. 12, 1984.
    Julian G. Baudier, Jr., Roberts, Katz and Baudier, New Orleans, for plaintiff-appel-lee.
    Roy A. Raspanti, New Orleans, for defendant-appellant.
    Mark C. Surprenant, Adams & Reese, New Orleans, for appellant and cross-appel-lee.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   GARRISON, Judge.

Plaintiff, Peter Giuffria, was involved in a vehicular collision when the van driven by him was hit from behind by a truck operated by Warren Davis and owned by Red River Barge Lines, Inc. At the time of the accident, Davis was an employee of Red River Barge Lines, Inc. and was acting within the course and scope of his employment. Giuffria filed a tort suit against Red River Barge Lines, Inc. and Elevating Boats, Inc. for injuries sustained in the accident. Elevating Boats was named as a defendant because it was the parent company of Red River at the time of the accident.

Plaintiff subsequently filed a supplemental and amending petition in which Pennsylvania General Insurance Company was named as an additional defendant. Pennsylvania General is the plaintiff’s uninsured motorist carrier and was named as a defendant due to plaintiffs belief at the time that neither Davis nor Red River had liability insurance.

Pennsylvania General filed an answer and third party demand in which it named Davis and Red River as third party defendants. The third party demand prayed for indemnification by the third party defendants in the event of a judgment against Pennsylvania General. Pennsylvania General then filed a supplemental and amended third party demand in which Elevating Boats, Inc. was also named as a third party defendant. Elevating was named as a defendant due to the fact that it owned a majority (72%) of the stock of Red River Barge Lines, Inc. Pennsylvania General’s position was that these two corporations were essentially the same and that the court should “pierce the corporate veil” and hold Elevating responsible for the debts and obligations of Red River.

At trial, defendant, Pennsylvania General, made a motion for a directed verdict at the close of plaintiff’s case in which it claimed that plaintiff had not met his burden of proving that both the owner of the vehicle, Red River, and the operator of the vehicle, Warren Davis, were uninsured at the time of the accident as required by R.S. 22:1406(D)(6) and that, therefore, Pennsylvania General should be dismissed. The trial judge denied this motion. Defendant, Elevating Boats, also made, a motion for directed verdict which was granted as to the main demand but not as to the third party demand.

The jury found that the plaintiff suffered damages of $25,000 but that the plaintiff's negligence constituted 40% of the total damages. Therefore, an award of $15,000 was recommended by the jury. The jury also found that the corporate veil should be pierced and that Elevating should be held liable for Red River’s debts and obligations.

Judge Richard Garvey entered judgment in favor of the plaintiff and against Pennsylvania General in the amount of $10,-000.00 and against Red River Barge Lines, Inc. in the amount of $15,000.00, less the amount collected from Pennsylvania General. On the third party demand, judgment was entered in favor of Pennsylvania General and against Red River Barge Lines, Inc. and Elevating Boats, Inc., in solido, in the amount of $10,000.00.

On appeal, appellants Red River Barge Lines, Inc. and Elevating Boats, Inc. argue that:

1. the trial court erred in finding that Elevating Boats, Inc. was the alter ego of Red River Barge Lines, Inc.;
2. the trial court erred in not dismissing Pennsylvania General Insurance Company; and
3. the trial court erred in finding that the plaintiff, Peter Giuffria, suffered damages in the amount of $25,000.00.

Appellant, Pennsylvania General, argues that:

1. the trial court erred in entering judgment against Pennsylvania General after plaintiff won a judgment against a defendant which is solidarily liable with an insured defendant;
2. the trial judge erred as a matter of law in denying Pennsylvania General’s motion for a directed verdict; and
3. damages awarded to the plaintiff are excessive.

As for the finding that Elevating Boats was the alter ego of Red River, testimony at trial established the facts that:

1. Elevating owned 72% of Red River’s stock.
2. Both companies had the same president.
3. No corporate minutes were taken and no corporate meetings were held for Red River after March, 1980.
4. No corporate tax returns for Red River were filed in 1981.
5. Elevating made over $200,000 in loans to Red River.
6. The president of Elevating worked as president of Red River for no salary.

Cases dealing with piercing the corporate veil allow shareholders to be held personally liable for corporate debts by looking at the totality of the circumstances to determine if there was fraud or deceit, commingling of funds, failure to follow statutory formalities, undercapitalization, failure to provide separate bank accounts and bookkeeping records, and failure to hold regular meetings. Kingsman Enterprises, Inc. v. Bakerfield Electric Company, 339 So.2d 1280 (La.App. 1st Cir.1976). Defendants Red River and Elevating cite the case of Ceco Corporation v. R & M Industries, Inc., 416 So.2d 166 (La.App. 4th Cir.1982), modified on other grounds and writ denied, 425 So.2d 709 (La.1982), as authority for not piercing the corporate veil in the instant case. In Ceco, the court found that the facts that the president of the corporation did not collect a salary, that the president made interest free loans to the corporation, that no meetings were held and no minutes were kept were insufficient to pierce the corporate veil where there was a sole shareholder who would otherwise be held personally liable. The instant case is distinguishable in that the corporate veil was pierced so that the parent company would be held responsible for the torts of its subsidiary. No individual shareholders are incurring personal liability in this case. Due to the totality of the circumstances, we feel that the trial judge was correct in piercing the corporate veil in this case and in holding Elevating responsible to Pennsylvania General for the torts of Red River.

All three defendants argue that the trial court erred in not dismissing Pennsylvania General, the uninsured motorist carrier, in light of the fact that the plaintiff received a judgment against an uninsured defendant, Red River, who is solidarily liable with an insured defendant, Elevating Boats. However, the plaintiff only received a judgment against the uninsured defendant, Red River, and against the uninsured motorist carrier, Pennsylvania General. Because Elevating Boats was dismissed by directed verdict on the main demand, plaintiff did not recover from Elevating and, therefore, the statement by the defendants that the plaintiff recovered from an uninsured defendant, Red River, who is solidarily liable with an insured defendant, Elevating Boats, is completely inaccurate. The judgment casting Red River and Elevating solidarily liable is only in favor of Pennsylvania General on the third party demand. Therefore, the uninsured motorist coverage is applicable in this ease and Pennsylvania General is liable to the plaintiff on the main demand.

Appellant, Pennsylvania General, appeals the denial of its motion for a directed verdict. This court has stated in the case of Adams v. Pourciau, 417 So.2d 860 (La.App. 4th Cir.1982), writ denied 422 So.2d 157 (La.1982), that the denial of a directed verdict is not an appealable issue, but rather is an interlocutory order.

The final issue which is appealed by all defendants is the quantum of damages awarded to the plaintiff. The trial court awarded $25,000 in damages to the plaintiff but this amount was reduced to $15,000 because of a finding that plaintiff was 40% contributorily negligent.

In the vehicular collision, plaintiff sustained soft tissue injuries to the neck and back. This condition caused plaintiff severe pain for approximately three months and he continued to experience discomfort for several months thereafter. He received treatment for his condition three days a week for three months following the accident. This condition has also limited plaintiffs activities in that he can no longer lift weights and he cannot hold his arm at a certain angle without a resulting burning sensation in his neck. Dr. Pierre Espenan, who examined the plaintiff on the day of the accident, testified that plaintiffs injuries were moderately severe and that it was his opinion that plaintiff needed further medical treatment. The plaintiffs van also received considerable damage in the accident.

Before a Court of Appeal can disturb an award made by a trial court, the record must clearly reveal that the trier of fact abused its discretion in making its award. Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). While this award may be high and is more than requested by the plaintiff in his petition, it was not an abuse of the trial judge’s discretion.

For the reasons discussed above, the judgment of the trial court is affirmed.

AFFIRMED.

      . Red River Barge Lines, Inc. is no longer in existence.


text:
    STATE of Louisiana v. Kendall WILLIS.
    No. KA-1042.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, New Orleans, for defendant-appellant.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   AUGUSTINE, Judge.

The defendant, Kendall Willis, was convicted of illegal possession of stolen things, a violation of LSA-R.S. 14:69. A multiple bill was filed against the defendant and he was adjudged a multiple offender and sentenced to serve 15 years at hard labor. Willis appeals from that conviction.

On May 8, 1982 Clayton Fortune was attending the New Orleans Jazz Festival when his red 1980 Kawasaki 750 motorcycle was stolen from its parking place. Two days later, while investigating an incident involving another motorcycle, Police Officers Rodney Bailey and Donald Lemon encountered the defendant who was sitting on a red Kawasaki 750 motorcycle. The police officers asked Willis for the motorcycle’s registration papers. Willis produced registration papers indicating that John Pardone was the owner of the motorcycle. The registration papers matched the license plate of the motorcycle. However, further investigation revealed that the license plate was stolen. Additional inquiries disclosed that the motorcycle itself was stolen. The officers also determined that the defendant possessed an owner’s manual which listed the owner’s name as Clay Fortune and that he was using a Suzuki key on a Kawasaki motorcycle. Willis was then placed under arrest for possession of the stolen motorcycle.

Willis’ only assignment of error is that the sentence imposed is excessive. It is well settled that “the imposition of a sentence, although within the statutory limit, may violate a defendant’s constitutional right against excessive punishment that is enforceable by this Court on appellate review of his conviction.” State v. Sepulvado, 367 So.2d 762, 767 (La.1979).

With respect to the appropriate standards for that review, the Sepulvado court stated that:

... the statutory criteria legislatively provided by La.C.Cr.P. Art. 894.1 (1977), which are similar to those evolved by courts in other American jurisdictions with a constitutional or statutory duty to review excessiveness, provide appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive, either by reason of its length or because it specifies confinement rather than less onerous sentencing alternatives.

367 So.2d 762 at 769.

To comply with the guidelines, “there is no requirement that the trial judge articulate every aggravating and mitigating circumstance under C.Cr.P. 894.1 if he adequately considers the guidelines in particularizing sentence to the defendant.” State v. Bradley, 414 So.2d 724, 725 (La.1982).

In the instant case the trial court noted that the defendant, who was twenty-one years of age was still on probation for a prior charge of three counts of simple robbery to which he had pled guilty; and that in addition to the conviction for receiving stolen property for which he was being sentenced, there was an open misdemeanor charge for possession of stolen property. He also reviewed the defendant’s arrest record. The only mitigating factors brought to the court’s attention were defendant’s youth and the fact that he had no juvenile record whatsoever. It may be said that the trial court demonstrated adequate compliance with Art. 894.1.

The 15-year sentence is nevertheless not justified on the basis of the factors considered by the trial court. First and foremost, there were no aggravating factors in the present offense itself at all — no threats, no violence, no breaking and entering, no injury; nothing but possession of a stolen thing. No details of the earlier conviction on three counts of simple robbery were shown, but the fact that defendant was placed on probation (on serving six months in parish prison) shows that that cannot have been a particularly bad crime. Nor does the record contain any details of the other arrests, assuming they might appropriately be considered. Perhaps the worst that can be said of defendant — in comparing him with other second-offender possessors of stolen things — is that he was still on probation for his first offense (committed three-and-a-half-years earlier) when he committed the second. Because the circumstances of the three-count simple robbery were mild enough to allow probation, we conclude that defendant appears to be towards the least rather than towards the worst second-offender possessors of stolen things. The sentence range under R.S. 15:529.1 is one third of to twice the ten-year maximum of R.S. 14:69, or between three and a third and twenty years. Our judgment is that on this record 15 years is excessive punishment, because the appropriate sentence should be one on the order of five years.

For the foregoing reasons the conviction is hereby affirmed, and the matter is remanded for resentencing consistent with this opinion.

AFFIRMED.


text:
    Russell ALONGI v. DEPARTMENT OF POLICE.
    No. CA-1568.
    Court of Appeal of Louisiana, Fourth Circuit.
    June 12, 1984.

      Alan B. Tusa, New Orleans, for plaintiff-appellant.
    Harold D. Marchand, Asst. City Atty., New Orleans, for defendant-appellee.
    Before GARRISON, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

Appellant, Russell J. Alongi was dismissed from the New Orleans Police Department (“Police Department”) on October 28, 1982. Alongi appealed his dismissal to the New Orleans Civil Service Commission (“Commission”). On January 31, 1983 a hearing was held before a Commission Hearing Examiner, and on June 6, 1983, the Commission affirmed that dismissal. Alongi appeals the Commission’s decision. We reverse.

The record reveals that Alongi suffered from a serious illness, chronic ulcerative colitis. As a result of his sickness Alongi was able to work only two days in 1982. By a letter dated October 27, 1982 and signed by the Superintendant of Police, Henry M. Morris, Alongi was notified that he was being dropped from the rolls of the Police Department effective October 28, 1982. The only reason given for Alongi’s dismissal was that the Police Departments’ physician “has concluded that you will probably not be able to return to full duty in the future.”

It is apparent, and the Commission noted in its decision, that the Police Department was unaware that six days prior to Alongi’s dismissal he had undergone an operation which completely cured him of his ailment. All of the evidence presented at the hearing proves that Alongi is fully capable of functioning as a police officer at the present time.

On appeal Alongi raises three issues. Those issues are whether the Police Department complied with the Commission’s rules concerning notification of dismissal and the right to reply in writing; whether the Police Department met its burden of proof; and whether Alongi was given a fair hearing.

First, Alongi claims that the Police Department failed to notify him that he had a right to reply in writing to the department’s reasons for dismissal as required by Commission Rules 9 § 1.1 and 1.2. Appellant is mistaken in this assertion. The record clearly reflects that Alon-gi was informed of that right by letter dated November 9, 1982 and signed by the Commission’s Director of Personnel.

Appellant also contends that he did not receive a fair hearing. “Our law does not entitle litigants to a perfect hearing but only to a reasonable one.” Werner v. Board of Trustees of the New Orleans Police Pension Fund of the City of New Orleans, 447 So.2d 1251 (La.App. 4th Cir. 1984). We see no evidence in the record that appellant’s hearing was not conducted properly and in accord with the law. Appellant’s claim that he did not receive a fair hearing is without merit.

With regard to the appellant’s contention that the Police Department failed to carry its burden of proof we note that in the instant matter the evidence was taken before a hearing examiner and the record thus compiled was filed with the Commission without comment or recommendation. Under these circumstances the standard of review by an appellate court is not unlike that of judicial review in other administrative matters: the question is whether the conclusion reached by the Commission is arbitrary, capricious, or characterized by abuse of discretion. LSA-R.S. 49:964 (G), (S). Merchant v. Department of Finance, 391 So.2d 587 (La.App. 4th Cir.1980).

We find a clear abuse of discretion in the present case. It is true that Officer Alongi had been absent from his duties for approximately one year, and that the Police Department did not clearly abuse its discretion in terminating him — given what they thought they knew. The department did not know, however, that at the time of Officer Alongi’s dismissal, the reason for terminating him no longer existed. Officer Alongi’s operation completely cured him of the illness which had previously prevented his attendance at work, and the police surgeon’s own testimony confirms that Alongi is as capable as any other officer to resume his police duties.

However reasonable the Department’s error in dismissing Officer Alongi, it was error nonetheless and should have been corrected by the Commission. Failure to have done so was a clear abuse of discretion.

Therefore we reverse the Commission’s ruling and order Alongi reinstated as a New Orleans Police Officer. This matter is remanded to the Commission for its determination as to whether the appellant is entitled to back wages.

For the foregoing reasons the judgment of the New Orleans Civil Service Commission is reversed and remanded.

REVERSED AND REMANDED.

      . MAINTAINING STANDARDS OF SERVICE.
      1.1 When any regular employee in the classified service is unable or unwilling to perform the duties of his position in a satisfactory manner or has committed any act to the prejudice of the service, or has omitted to perform any act that it was his duty to perform, or otherwise has become subject to corrective action, the appointing authority shall take action warranted by the circumstances to maintain the standards of effective service. The action may extend to (1) removal from the service, (2) retirement, (3) reduction in pay to the next lower rate in the range for the class, (4) demotion to any position of a lower class that the employee is deemed by the appointing authority and the Director to be competent to fill, (5) suspension without pay not exceeding in the aggregate one hundred twenty (120) days in any period of twelve (12) consecutive calendar months, (6) fine, (as amended February 9, 1955 and August 9, 1979).
      1.2 In every case of removal, suspension, reduction in pay, or fine of any employee in the classified service or of involuntary retirement or demotion of the employee, the appointing authority shall immediately furnish the employee and the Director a statement in writing of the reasons therefor. The Director shall notify the employee in writing at his last known address that he has a right to make a reply in writing, shall receive and consider the reply, and may make an investigation of the facts.


author: PER CURIAM.

text:
    In re MAY, Applying for Adoption.
    No. 15859-CAJ.
    Court of Appeal of Louisiana, Second Circuit.
    June 13, 1984.
    Writ Denied Oct. 26, 1984.
    John C. Blake, Jonesboro, for appellee.

      Appellant, in pro. per.
    Before PRICE, MARVIN and SEXTON, JJ.
   PER CURIAM.

Subsequent to our opinion herein, In Re May, 441 So.2d 500 (La.App. 2d Cir.1983), our Supreme Court, 449 So.2d 1028 (1984), granted writs and made the following pronouncement:

“Granted. Court of Appeal judgment set aside. Case remanded to Court of Appeal for reconsideration after receiving and reviewing transcript of trial court proceedings.”

In dealing with appellant’s Assignment of Error No. 1, we noted that a lack of a trial transcript precluded us from determining exactly what occurred during the course of the trial. Even though we cited LSA-C.C.P. Art. 2130, we apparently did not make it sufficiently clear that the proceedings were never “taken down in writing.” Thus, there is no transcript and one is not available because the proceedings were never recorded.

We are still of the view, as we espoused in the original opinion, that because the defendant did not object in the trial court to the failure to record the proceedings, he waived the right to complain of such an appeal.

Moreover, and just as importantly, the defendant did not indicate what he wished to prove by the subpoenas he contended were not issued, nor did he indicate how his case was prejudiced by the lack of the records which he sought. Furthermore, we accepted plaintiff’s contention arguendo that his cross-examination of his former wife on the details of their having lived together after the divorce was curtailed. We adhere to the opinion that since this evidence concerned events a number of years old that it was irrelevant. Therefore, the defendant did not show us in what manner he was prejudiced by a lack of a transcript and, under the circumstances of this case we are unable to conceive of any such circumstance.

Thus, in summary, because the proceedings are civil in nature, we believe that defendant’s lack of objection to the “taking down” of the proceedings operates as a waiver thereof. Furthermore, we are firmly of the view that even had those proceedings been taken down, they would not have assisted petitioner in the errors which he asserts before us. Having reconsidered the record and the law in light of the remand, we reinstate our original opinion.

      . "Art. 2130. Record on appeal; statement of facts
      “A party may require the clerk to cause the testimony to be taken down in writing and this transcript shall serve as the statement of facts of the case. The parties may agree to a narrative of the facts in accordance with the provisions of Article 2131.”


author: DOUCET, Judge.

text:
    Chester DARBONNE, Plaintiff-Appellee, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant-Appellant.
    No. 83-697.
    Court of Appeal of Louisiana, Third Circuit.
    June 27, 1984.

      Trimble, Randow, Percy, Wilson & Foote, James T. Trimble, Jr. and Elizabeth E. Foote, Alexandria, James Shelton, Lafayette, for defendant-appellant.

      David Carriere, Opelousas, for plaintiff-appellee.
    Before CUTRER, DOUCET and YEL-VERTON, JJ.
   DOUCET, Judge.

In this personal injury action against an uninsured motorist carrier, the jury awarded plaintiff damages, statutory penalties, and attorney’s fees. From that judgment, the defendant-insurer appeals and the plaintiff has answered the appeal, seeking an increase in attorney’s fees. We amend and affirm.

On September 22, 1981, the plaintiff, Chester Darbonne, received personal injuries arising from an automobile accident when his vehicle was struck from the rear as it was stopped by a vehicle which in turn was- struck from the rear. The tortfeasor was an uninsured motorist. Mr. Darbonne was driving a vehicle owned by his employer, Newport Trucking Company, and that vehicle was not covered by uninsured motorists coverage. Subsequently suit was filed for personal injuries, medical expenses, and lost wages suffered by Mr. Darbonne. Named defendant was Mr. Darbonne’s uninsured motorists carrier, Safeco Insurance Company of America. After trial by jury, the plaintiff was awarded the sum of $4,500 for lost wages, $900 for medical expenses, and $10,500 for physical and mental pain and suffering. Additionally, the jury answered yes to the question of whether Safeco Insurance Company was arbitrary, capricious, and without probable cause in its settlement negotiations with its insured, Chester Darbonne. The trial judge rendered judgment awarding plaintiff $15,000 (the policy limits) with statutory penalties of 12% of that sum and the sum of $5,000 as reasonable attorney’s fees. In addition, interest was awarded from the date of judicial demand until paid. Safeco Insurance Company was given a credit of $7,521.00 due to a partial payment made on July 15, 1982. Penalties were assessed based on the entire $15,000 found due by the jury.

Following the accident, plaintiff was seen by Dr. Albon Young and his associate, Dr. Rivette, of Lafayette, La. Dr. Young testified that he saw the plaintiff the day after the accident and he was suffering from headaches and neck discomfort and numbness along the ulner aspect of his right hand. Plaintiff further complained of abdominal pain. Plaintiff related that he had been knocked unconscious momentarily at the time of the accident. Dr. Young’s examination indicated tenderness on the back of the neck, cervical spine area, and either side of the base of the skull. Dr. Young’s impression was that the plaintiff had suffered a cervical strain or a lumbar radiculo-pathy. Physical therapy was recommended, and the use of a cervical collar along with pain medication was prescribed. Two weeks later on October 7, 1981, Dr. Young again saw plaintiff, who continued to have complaints of pain in the shoulder and neck areas. Dr. Young recommended a myelogram; however, due to plaintiff’s fears of such an operation, the myelogram was never performed. At the time of trial, the plaintiff continued to have pain in the neck and shoulder and Dr. Young testified that he could be expected to have the same for some time.

The appellant specifies the following assignments of error: 1) The jury erred in awarding $10,500 to the plaintiff for his pain and suffering in view of the limited medical testimony based on six weeks of treatment when the total amount of medical expenses was only $902.52. 2) The trial court erred as a matter of law in its application of the penalties and attorney’s fees provision of R.S. 22:658 to an uninsured motorist’s insurer whose liability arises ex delicto rather than ex contractu. 3) In the alternative, the trial court erred in assessing legal interest against defendant from the date of judicial demand instead of from the date of judgment. 4) In the alternative, the jury erred in finding that the statute applied under the facts of this case where less than sixty days had lapsed from the time the plaintiff submitted all elements of proof and the time from which the defendant tendered the sum of $7,521.00. 5) Alternatively, the appellant contends that the trial court erred in assessing the percentage of penalties on the entire amount of the judgment without first giving credit to the appellant for the amount tendered.

Before a trial'court award can be questioned as inadequate or excessive, a reviewing court must look first not to prior awards, but to individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to an individual case or plaintiff may a reviewing court determine that the award is excessive. Thus, the initial inquiry must always be directed at whether the fact-finder clearly abused their much discretion. La.C.C. art. 1934(3); Reck v. Stevens, 373 So.2d 498 (La.1979); Coco v. Winston Industries, Inc., 341 So.2d 332 (La.1976). We have reviewed the record and find no manifest abuse of discretion in the jury’s award of $10,500 for pain and suffering.

With regard to appellant’s contention that the trial court erred in applying La.R.S. 22:658 to an uninsured motorist insurer, we note that R.S. 22:658 has been held applicable to an uninsured motorist’s arbitrary, capricious, failure to pay. See: Stewart v. Wood, 153 So.2d 497 (La.App. 1st Cir.1963); Rogers v. State Farm Mutual Automobile Insurance Company, 217 So.2d 690 (La.App. 3rd Cir.1969); Schoelen v. Fidelity & Casualty Company, 318 So.2d 90 (La.App. 3rd Cir.1975), writ denied 322 So.2d 780 (La.1975); Soniat v. State Farm Mutual Auto. Ins. Co., 340 So.2d 1097 (La.App. 4th Cir.1976); Flowers v. Lloyd’s of London Insurance Company, 364 So.2d 650 (La.App. 2nd Cir.1978); Hawthorne v. Southeastern Fidelity Insurance Company, 387 So.2d 26 (La.App. 3rd Cir.1980); and Day v. Coca-Cola Bottling Co., Inc., 420 So.2d 518 (La.App. 2nd Cir. 1982). § 658 specifically provides that “All insurers issuing any type of contract other than those specified in R.S. 22:656 and 22:657 shall pay the amount of any claim due any insured including any employee under Chapter 10 of Title 23 of the Revised Statutes of 1950 within sixty days after receipt of satisfactory proofs of loss from the insured, employee or any party in interest.” Clearly, R.S. 22:658 makes no exemption for uninsured motorist’s insurance carriers but rather mandates that they, like other insurers, pay insurance proceeds promptly when due or be subject to the penalty provisions therein.

Nevertheless, appellant contends R.S. 22:658 has no application to an uninsured motorist carrier inasmuch as its obligation arises out of tort rather than contract, citing in support thereof Stroud v. Liberty Mutual Insurance Co., 429 So.2d 492 (La.App. 3rd Cir. 1983). We find no merit in appellant’s contention. In Johnson v. Fireman Fund Insurance Co., 425 So.2d 224 (La.1982) the Louisiana Supreme Court had occasion to decide whether a worker’s compensation carrier had a cause of action to recover from either the employer’s or employee’s uninsured motorist carrier. In discussing the relationship between the tort-feaser and the uninsured motorist carrier, the court stated: “Subject to conditions not granted the tortfeaser, the uninsured motorist carrier is independently obliged to repair the same damage which the tortfeaser has wrongly caused.” Among the conditions not granted the tortfeaser are the rights and privileges provided by R.S. 22:658. Thus, the“trial judge properly applied R.S. 22:658 to the case herein. We note also that since the rendition of the Johnson and Stroud decisions cited above, our Supreme Court in Hart v. Allstate Insurance Company, 437 So.2d 823 (La.1983), has specifically reiterated that La. R.S. 22:658 is applicable to an uninsured motorist claim.

Appellant’s contention that interest should run from the date of judgment rather than date of judicial demand is totally without merit. See: Ainsworth v. Government Employees Insurance Company, 433 So.2d 709 (La.1983); Stroud v. Liberty Mutual Insurance Company, supra; Block v. Reliance Insurance Company, 433 So.2d 1040 (La.1983). It is well established that legal interest attaches from the date of judicial demand under the circumstances herein. See also: Chiasson v. Whitney, 427 So.2d 470 (La.App.1983), writ denied 433 So.2d 179 (La.1983).

Next, appellant contends that the trial court erred in applying R.S. 22:658 inasmuch as its conduct was neither arbitrary, capricious, or without probable cause. Furthermore, appellant contends that sixty days had not elapsed between submitting proof of claim and the insurer’s subsequent tender of $7,521.00. As aforementioned, the accident occurred on September 22, 1981. Elo Whitmore, the claims adjuster for the defendant, testified that she received notification of the claim and opened a file on November 17, 1981. She acknowledged receiving copies of the medical bills along with the original letter of representation. Mrs. Whitmore also acknowledged receiving a letter of January 6, 1982 wherein demand for payment under the medical payments provision and the uninsured motorist provisions of the policy was made and a settlement was proposed. It was not until February 25, 1982 that Mrs. Whit-more requested copies of the medical reports. In addition, she acknowledged that although the policy of insurance from Wau-sau Insurance Company was tendered to her, she waited three to four weeks before picking it up and also waited until March 17th for verification that the uninsured motorist coverage had been rejected in writing by Newport Trucking Company. Malcolm MacGregor took over the file in the early part of April 1982 and on April 15, 1982, written rejection of uninsured motorist coverage was received from the plaintiff’s employer’s insurer. Settlement offers were made on June 18th and again on June 28th. Both contemplated full settlement. The unconditional draft was not written until June 30, 1982 and it was not received and presented for acceptance until July 5, 1982 by Mr. Darbonne. Mr. MacGregor acknowledged the bank upon which the draft was drawn did not issue instructions to pay the draft until July 18, 1982.

From the aforegoing it is apparent the payment was not made within sixty days from receipt of proof of loss as required by R.S. 22:658. The jury unanimously agreed that the defendant was arbitrary, capricious, and acting without probable cause in settlement negotiations with the insured. The trier of fact’s conclusion with regard to assessment of penalties and attorney’s fees is partially a factual determination which should not be disturbed absent the finding that it is manifestly in error. Atlee v. Stone & Webster Engineering, Inc., 428 So.2d 569 (La.App. 3rd Cir.1983); Carter v. American Mutual Liability Insurance Co., 386 So.2d 1072 (La. App. 3rd Cir. 1980).

Concerning appellant’s claim that the penalties should have been assessed on the difference between the amount tendered and the amount found due we note that 22:658 provides that in the event of partial payment or tender, penalties shall be made in the sum of 12% of the difference between the amount paid or tendered and the amount found to be due, plus reasonable attorney’s fees. However, the partial payment provisions of 22:658 only apply when such payment has been made within 60 days after receipt of proof of claim and demand therefor. Given the evidence presented, the fact-finder obviously determined that the partial payment was not timely made and we have no difficulty in concluding such a result is free from manifest error.

Plaintiff has answered the appeal, seeking an increase in attorney’s fees. An increase in attorney’s fees for services on appeal is usually awarded when the defendant appeals and obtains no relief and the plaintiff requests an increase in accordance with proper appellate procedures. Gagnard v. Travelers Insurance Company, 380 So.2d 191 (La.App. 3rd Cir.1980); Haynes v. Standard Fire Insurance Company, 370 So.2d 118 (La.App. 1st Cir.1979). We find that an award of $500 will adequately compensate counsel for its efforts on appeal. Accordingly, the judgment appealed is amended to award a total sum of $5,500.00 as attorney’s fees.

For the reasons assigned hereinabove, the judgment is affirmed as amended.

AFFIRMED AS AMENDED.