author: KLIEBERT, Judge.

text:
    Kelly S. LEWIS v. Joyce S. GARY.
    No. 83 CA 267.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Robert A. Caplan and Pete Lewis, Lewis & Caplan, New Orleans, for plaintiff-appel-lee.
    Carl W. Cleveland, Barbara Treuting Cas-teix, Carl W. Cleveland & Associates, New Orleans, for defendant-appellant.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   KLIEBERT, Judge.

The defendant, Joyce Gary, the buyer, brings this suspensive appeal from a judgment awarding to the plaintiff, Kelly Lewis, the seller, liquidated damages of $11,-400.00 (10% of the purchase price) plus attorney fees of $3,472.50, for breach of an agreement, entered into on July 15, 1980, for the purchase of a house located in Sli-dell, La. At the time the agreement was executed, the buyer was voluntarily separated from her husband. On appeal, the buyer alleges two specifications of error: (1) the trial judge failed to find the agreement was subject to a suspensive condition, and (2) the trial judge failed to hold seller, rather than the buyer, breached the agreement. In the event this court upholds the trial judge’s finding, as to the breach, the buyer alternatively argues for a credit against the rents and security deposit paid to the seller, while the buyer was in possession of the house. We affirm the trial judge’s decision, and reject the alternative argument.

The seller was occupying a house and lot he built in Slidell which was listed with a realtor in the Slidell area. The buyer, having three years of college courses, with a major in real estate, and fifteen years of experience in real estate marketing, contacted the seller seeking, according to her testimony, a lease with an-option to purchase the house occupied by the seller. On the same day the seller moved out of the house, the buyer moved in, paying a $500.00 security deposit for damages and $800.00 for the first month’s rent.

Subsequently, according to the buyer, the seller submitted to her an agreement to purchase, which was not a lease with an option to buy as she wanted. After approximately one month of negotiations, consultations with her attorney, the submission of addendums to the agreement, some of which were recommended by her attorney, they entered into the agreement to buy and sell which is at issue in this suit.

The agreement is on the standard printed form used by realtors in the area and provided for a deposit of $11,400.00 (10% of the purchase price) which was posted by the buyer in the form of a promissory note and called for the passage of the Act of Sale before purchaser’s notary on or before September 30; 1980. Under the agreement, the security deposit of $500.00 plus rentals of $800.00 per month were to be credited against the purchase price at the passage of the sale. The mortgage on the house was to be assumed by the buyer.

At the buyer’s request, based on the contention that she did not have the funds to make the purchase, by mutual agreement, sometime in September, 1980, the parties agreed to extend the passage of the Act of Sale to January 31, 1981. All other terms and conditions of the sale were to remain the same; except henceforth, only a sum equal to the portion of the monthly loan payments applied to the principal of the loan were to be applied as a credit against the purchase price instead of full monthly rentals.

In November, 1980, the buyer informed the seller she and her husband had reconciled; therefore, she would not go through with the Act of Sale then scheduled for January 31, 1981. By letter dated December 4,1980, the seller, through his attorney, informed the buyer the refusal to pass the sale as scheduled on January 31,1981 would constitute a breach and result in the seller filing suit to enforce the agreement. When no response was made to the letter or to a subsequent one dated January 7, 1981, by letter dated January 16, 1981, the seller’s attorney set the sale for January 31,1981 at his office. In response, the buyer’s attorney, by letter dated January 29, 1981, informed the seller, through his attorney, the buyer would not appear at the January 31, 1981 sale because the sale was conditioned upon the buyer’s obtaining funds for the purchase price from a settlement of the community of acquets and gains and the occurrence of a suspensive condition; namely, the performance of repairs by the seller. When the buyer did not appear for the passage of the sale, the seller brought this suit for specific performance or damages.

In the trial court and here, counsel for the buyer argues that the reconciliation between the buyer and her husband, and the seller’s failure to make the repairs called for in the agreement rendered the agreement null and void. The argument is legally based on the provisions of Civil Code Articles 2021 and 2043 and factually grounded in the following addendums to the agreements:

ADDENDUM # 1
AMENDMENT TO AGREEMENT TO PURCHASE
BETWEEN JOYCE S. GARY AND KELLY S. LEWIS
RE: 311 ROYAL DRIVE, SLIDELL, LOUISIANA
This agreement shall be null and void if the sewerage system problems are not totally repaired to the satisfaction of Joyce S. Gary, whether those problems are the responsibility of seller, subdivision developer, building contractor or any other individual and/or firm.
S/ Joyce S. Gary
JOYCE S. GARY
S/ Kelly S. Lewis
KELLY S. LEWIS
This agreement shall also be null and void if Purchaser is not acceptable by the Mortgage Company, for the assumption of said existing mortgage loan.
S/ Joyce S. Gary
Joyce S. Gary
S/ Kelly S. Lewis
Kelly S. Lewis
ADDENDUM #2
THINGS TO BE DONE BEFORE ACT OF SALE:
1. Plans to house.
2. Garage side door fixed from leakage when it rains.
3. Fasher board installed in first bathroom.
4. Fix broken switch for ceiling fan.
5. New boards installed to secure house from rats to be painted.
6. One glass bulb type fixture in dining room broken.

One of the difficulties with the buyer’s position is that the record does not factually support the legal argument. Necessary to counsel’s legal argument is a factual finding that the seller was obligated to, but did not perform the repairs called for by the agreement. Counsel for the buyer contends the seller’s failure to repair the sewerage system to the buyer’s satisfaction was the basis for the buyer’s refusal to perform in accordance with the agreement.

The testimony of the seller and of his plumber and carpenter supports the conclusion that the agreed upon repairs were in fact made. The only evidence submitted by the buyer to contradict the seller’s evidence was the testimony of Mr. Segher, a plumber, who testified that he visited the property on January 29, 1981 and found a bleeder line running from the field bed into an open drainage ditch. He saw no connection to the four inch subdivision bleeder line. Since he made only a visual examination of the system and did not go into the house, he was not in a position to nor did he testify as to what, if anything, was wrong with the system. Rather, the essence of his testimony was that he would have to get into the system to determine what was wrong. At the time of his examination, the house had been vacated by the buyer for two months. On the other hand, Mr. St. Pierre, a plumber who was thoroughly familiar with the system, testified that he inspected the system after the buyer moved out and found it to be working properly and that it was tied into the subdivision bleeder line.

Additionally, although counsel for the buyer contends title to the property was not accepted because of the seller’s failure to make the repairs, particularly to the sewer system, the essence of his client’s testimony was that she no longer needed the house due to the reconciliation with her husband; therefore, she decided not to go through with the purchase and so informed the seller.

It is true the seller admitted he had not submitted the plans of the house to the buyer (as per Addendum # 2). He also testified, however, that the buyer had agreed that delivery of the plans at the time the sale was passed would be satisfactory. In any event, there was no obligation to deliver the plans at a particular time; therefore, we hold delivery at the Act of Sale would have been sufficient compliance with the requirements of the agreement.

Furthermore, we note Civil Code Article 1932 and the Supreme Court’s ruling in Andrew Development Corporation v. West Esplanade, 347 So.2d 210 (1977) and the cases recited therein. Under those authorities “Where a party refuses and does not merely fail to comply with his contractual obligation, his refusal constitutes an active breach of the contract which relieves the other party of continuing to perform under the contract.” In the light of the buyer’s testimony here, we hold the buyer actively breached the agreement by manifesting her unwillingness to perform under the contract more than two months before the date set for the passage of the sale.

There is no indication in the agreement that the sale was conditioned upon the buyer’s receipt of funds from the anticipated partition of the community of acquets and gains then existing with her husband. Moreover, the buyer’s testimony conclusively shows she knew the risk she was running at the time she executed the agreement and that the seller wanted an agreement to purchase and not an option to purchase which would have avoided the risk of a timely partition or of no partition. The buyer totally failed to prove the agreement was conditioned upon the buyer’s receipt of funds from the partitioning of the community.

For the reasons above stated, we hold the buyer’s primary assignment of error is without merit. For the reasons which follow, we hold the buyer’s alternative assignment of error is without merit.

Although the agreement provided for a credit against the purchase price for the security deposit and the monthly rentals, there was no agreement the credit would also apply against liquidated damages. Additionally, the seller’s testimony that the damage deposit of $500.00 was used to repair damages to the carpet and stairway and those caused by the buyer’s improper effort to install an icemaker was uncontradicted. Therefore, we see no reason why the seller should be deprived of the rental payments or the damage deposit paid by the buyer for the occupancy of the house pending passage of the sale.

The trial judge awarded to the seller attorney fees of $3,472.50 based upon 46.3 hours of work at $75.00 per hour. The seller requests additional fees of $1,500.00 for the appeal. We believe the $3,472.50 fee awarded by the trial judge is sufficient to cover the trial and the appeal.

Accordingly, the judgment of the trial court is affirmed. All costs of the appeal to be borne by the buyer.

AFFIRMED.

      . Article 2021. Conditioned obligations, definition. Conditioned obligations are such as are made to depend on an uncertain event. If the obligation is not to take effect until the event happen, it is a suspensive condition; if the obligation takes effect immediately, but is liable to be defeated when the event happens, it is then a resolutory condition.
      Article 2043. Kinds of suspensive conditions, effective date of obligations. The obligation contracted on a suspensive condition, is that which depends, either on a future and uncertain event, or on an event which has actually taken place, without its being yet known to the parties.
      In the former case, the obligation can not be executed till after the event; in the latter, the obligation has its effect from the day on which it was contracted, but it can not be enforced until the event be known.

      . “When.there is an active violation of the contract, damages are due from the moment the act of contravention has been done, and the creditor is under no obligation to put the debtor in default, in order to entitle him to his action.”


source: Caselaw Access Project

license: Public Domain

text:
    Carol Aston, Wife of/and William ASTON v. Edward LAZARUS, M.D., Lakeside Hospital, Hartford Insurance Company, and Evanston Insurance Company.
    No. 83-CA-270.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Carol Lynn Doskey, Dymond, Crull & Castaing, New Orleans, for plaintiffs-appellants.
    Harold A. Thomas, F. Lee Butler, Adams & Reese, New Orleans, for defendants-ap-pellees.
    Before BOUTALL, C.J., and KLIEBERT and DUFRESNE, JJ.
   KLIEBERT, Judge.

Carol Aston, et ux, devolutively appeals from a judgment sustaining an exception of prematurity, thereby dismissing their claim of medical malpractice against Dr. Edward Lazarus and his insurer, Evanston Insurance Company, and against Hospital Corporation of Louisiana, Inc., the owner-operator of Lakeside Hospital, defendants. We affirm.

According to the petition, on June 18, 1981, Carol Aston was admitted to Lakeside Hospital and a caesarian section delivery of her infant was performed by her physician, Dr. Lazarus. During her convalescence at the hospital, a serious post-operative wound infection developed, causing her to be confined to the hospital until July 3, 1981.

On June 16, 1982, plaintiffs filed suit alleging negligence in the treatment she received and praying for damages in solido against all defendants. The doctor and his insurer filed exceptions of prematurity stating the doctor was a health care provider; therefore, the suit was premature because plaintiffs failed to comply with La.R.S. 40:1299.47B. (1), which reads as follows:

B. (1) No action against a health care provider covered by this Part, or his insurer, may be commenced in any court of this state before the claimant’s proposed complaint has been presented to a medical review panel established pursuant to this Section and an opinion is rendered by the panel. By agreement of both parties, the use of the medical review panel may be waived.

In response, plaintiffs filed a pleading entitled Opposition to Defendants’ Exception of Prematurity in which they allege the Medical Malpractice Act, as applied to plaintiffs’ claims, would not avail them of the alleged benefits of the Act and further made the following allegation:

“The Act is unconstitutional in that it deprives Mr. and Mrs. Aston of the equal protection of the laws without providing the societal benefit it was designed to achieve.”

The trial judge sustained the exception of prematurity and dismissed plaintiffs’ suit against the doctor and his insurer without prejudice.

On appeal, plaintiffs assign as error the trial court’s failure to find the Medical Malpractice Act, La.R.S. 40:1299.47, et seq.; un constitutional as a denial of equal protection and procedural due process. In support of this contention she files an extensive brief citing decisions of courts in the States of Florida, Missouri, Idaho and California, holding unconstitutional the same or similar provisions of Medical Malpractice Acts requiring a pre-suit medical review before filing suit and absolute limits of recovery, etc. Although the arguments made and supported by the cases in foreign jurisdictions might be persuasive to this court, the posture in which the issues are presented binds us to the prior rulings of this court and of the Supreme Court.

Well settled law in this jurisdiction is the legal presumption that all laws are presumed to be constitutional until the contrary is made to appear. Further, as a general rule, a litigant cannot raise the unconstitutionality of a statute unless its unconstitutionality is specially pleaded and the grounds particularized. Johnson v. Welsh, 334 So.2d 395 (La.1976). Moreover, there is a long standing judicial principal that courts will not consider constitutional challenges unless necessary to the resolution of a dispute. Benson & Gold Chevrolet v. Louisiana Motor Vehicle Commission, 403 So.2d 13 (La.1981); Collins v. Division of Foster Care, etc., 377 So.2d 1266 (La.App. 4th Cir.1979).

Here, the plaintiffs seek to raise the constitutionality of the entirety of the Medical Malpractice Act, in response to a plea of prematurity grounded solely in the provisions of La.R.S. 40:1299.47(B). Thus, under the principles above stated, even though the plaintiffs’ pleadings were construed as sufficient to raise all the issues presented in their brief, our inquiry has to be limited to the issue as to the constitutionality of La.R.S. 40:1299.47(B) because the different provisions of the Act are sev-erable and the only one necessary to a resolution of the case here is that section.

Under the limited inquiry created by the posture in which the issues are presented we are bound by the prior rulings of the Supreme Court in Everett v. Goldman, 359 So.2d 1256 (La.1978) and Derouen v. Kolb, 397 So.2d 791 (La.1981), which upheld the provision in question here against an attack of unconstitutionality grounded in an asserted violation of equal protection of the laws and due process provisions of the State and Federal Constitutions, as well as of this court in Authement v. Luke, 418 So.2d 742 (La.App. 5th Cir.1982).

We therefore affirm the decision of the trial judge sustaining the exception of prematurity.

AFFIRMED.

      . The posture here is not the same it would be were the same issues raised in the suit for a declaratory judgment which has complied with the provisions of La.C.C.P. Article 1880.


author: BOUTALL, Judge.

text:
    STATE of Louisiana v. Charles HENRY.
    No. 83-KA-350.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Writ Granted Dec. 16, 1983.

      John M. Mamoulides, Dist. Atty., Steve Wimberly, William C. Credo, III, Andrea M. Price, Asst. Dist. Attys., Research & Appeals, Gretna, for State of Louisiana plaintiff-appellee.
    Bernard E. Burk, New Orleans, for Charles Henry defendant-appellant.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   BOUTALL, Judge.

Appellant Charles Henry appeals his conviction of aggravated rape with its resultant life sentence.

Appellant, age 31, was convicted by a jury of the aggravated rape of an eight year-old girl, the daughter of appellant’s live-in girlfriend. He has assigned the following five errors for our review:

1. The Court erred in failing to grant a mistrial after incorrectly instructing the jury panel during voir dire on the definition of “reasonable doubt.”
2. The Court erred in failing to instruct the jury that forcible rape was a responsive verdict to the offense of aggravated rape.
3. The Court erred in instructing the jury that they must consider every responsive verdict and find the defendant not guilty of each of them before they could find the defendant “not guilty.”
4. Taking the evidence in the light most favorable of the State, a rational'jury could not find the defendant guilty as charged beyond a reasonable doubt.
5. The Court erred when it refused to grant a new trial to the defendant based upon the reasons set out in the defendant’s Motion for New Trial.

We will briefly pass on Assignments # 1, 3,4, and 5 and then devote the remainder of our opinion to Assignment # 2, which in our view presents the only issue on appeal which merits a detailed analysis.

ASSIGNMENT 1

As stated above, appellant specifies as error the trial court’s refusal to grant a mistrial after incorrectly instructing the jury panel during voir dire on the definition of the concept of reasonable doubt.

The incorrect instruction of which appellant complains was the following:

You are prohibited by law and your oath from going beyond the evidence to seek for doubts upon which to acquit the defendant, but you must confine yourself strictly to a dispassionate consideration of the testimony given upon the trial. You must not resort to extraneous facts and circumstances in reaching your verdict. That is, you must not go beyond the evidence to find facts and circumstances creating doubts but must restrict yourself to the evidence that you heard on the trial of this case.

Counsel for the defense advised the court that the instruction on reasonable doubt was incorrect and requested a mistrial.

The court continued with voir dire and addressed the jury once again.

I want to point out to this jury panel that in reading some of the preliminary principles of law to this jury, I want you to understand that at the end of this case I will give you the law and you will be governed in this case by that law that I will give you at the end of the case. That is the law that will govern in this.
However, in discussing some of the preliminary principles of law with you, this court believes that it inadvertently stated one principle of law in error, which was pointed out by counsel for the defendant. I want to re-read you law on the presumption of innocence and what a reasonable doubt is. Now, with that understanding, that I will charge you on the law at the end of this case and after all of the testimony is heard and after the argument of counsel at the end of this case, I will give you the law and you will be governed by that law at the end of this case. I will now re-read you those principles of law.
The defendant is presumed to be innocent until each element of the crime necessary to constitute his guilt is proven beyond a reasonable doubt. The defendant is not required to prove that he is innocent. Thus, the defendant begins the trial with a clean slate. The burden is upon the state to prove the defendant’s guilt beyond a reasonable doubt. In considering the evidence, you must give the defendant the benefit of every reasonable doubt arising out of the evidence or out of the lack of evidence. If you are not convinced of the guilt of the defendant beyond a reasonable doubt, you must find him not guilty. While the State must prove guilt beyond a reasonable doubt, it does not have to prove guilt beyond all possible doubt. Reasonable doubt is doubt based on reason and common sense and is present when, after you have carefully considered all the evidence, you cannot say you are firmly convinced of the truth of the charge.

The appellant argues that a mistrial should have been granted on the basis of the original improper instruction.

La.C.Cr.P. art. 770 delineates the instances in which a mistrial is mandatory. It provides:

Art. 770. Prejudicial remarks; basis of mistrial
Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(1) Race, religion, color or national origin, if the remark or comment is not material and relevant and might create prejudice against the defendant in the mind of the jury;
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible;
(3) The failure of the defendant to testify in his own defense; or
(4) The refusal of the judge to direct a verdict.
An admonition to the jury to disregard the remark or comment shall not be sufficient to prevent a mistrial. If the defendant, however, requests that only an admonition be given, the court shall admonish the jury to disregard the remark or comment but shall not declare a mistrial.

The original improper instruction as to the law does not fall within article 770. State v. Cushenberry, 407 So.2d 700, 701 (La.1981) held that “[ejxcept in instances in which a mistrial is mandatory, it is warranted only when trial error results in substantial prejudice to the defendant depriving him of a fair trial. [Citations omitted].”

La.C.Cr.P. art. 921 provides that “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not affect substantial rights of the accused.”

Thus the question which must be resolved in the present case is whether the error noted and corrected was harmless in nature. State v. Gibson, 391 So.2d 421, 426 (La.1980) held that “[i]f the error is the kind that may be deemed harmless, the burden is on someone other than the person prejudiced by it to show that it was harmless. Chapman, supra. [Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967)].”

In the instant case, the jury was properly reinstructed. The original error occurred before the jury was impaneled. Voir dire was continued with the original fourteen prospective jurors and the court corrected itself. Three prospective jurors were excused by the state and four by the defense. Eight more veniremen were called and they were also reinstructed as to the correct law on reasonable doubt. In the process of impaneling a jury, the trial court re-explained the law one more time for a total of three times, before opening statements were made. During these three reinstructions, the veniremen were all seated in the courtroom and were present for the correct instructions as to the law.

Appellant cites the case of State v. McDaniel, 410 So.2d 754 (La.1982) in support of his position that the incorrect instruction on “reasonable doubt” constitutes reversible error. The instruction on reasonable doubt at issue in McDaniel was very similar to the trial court’s original charge in the instant case, insofar as that portion advising the jury that they were prohibited from “going beyond the evidence to seek for doubts upon which to acquit the defendant, etc.” In McDaniel, supra, the Louisiana Supreme Court held the above instruction, under the circumstances of that case, was clearly wrong and required reversal, stating:

An instruction which misleads or confuses the jury as to the meaning of reasonable doubt may create an error of constitutional dimensions.

McDaniel, supra, at 756. We find important distinctions between McDaniel, supra, and the case now before us. In McDaniel, the trial judge did not admonish the jury and reinstruct them correctly. In the present case the error occurred prior to completion of jury selection and the trial judge immediately corrected the erroneous instruction, three times giving the correct instruction on “reasonable doubt” prior to the jury’s being impaneled, and then once again at the close of the trial. Accordingly we hold that in the present case no error of “constitutional dimensions” occurred.

For the reasons given, assignment of error # 1 is without merit.

ASSIGNMENT #3

At issue is the following jury instruction regarding responsive verdicts for lesser included offenses:

In order to convict the defendant of the offense charged you must find beyond a reasonable doubt that the state proved every element of the crime of aggravated rape.
If you are not convinced that the defendant is guilty of the offense charged you may find the defendant guilty of a lesser offense, if you are convinced beyond a reasonable doubt that the defendant is guilty of a lesser offense.
If the state has failed to prove beyond a reasonable doubt that the defendant is guilty of either the offense charged or of a lesser responsive offense you shall find the defendant not guilty.

Appellant argues that the third paragraph above is an improper statement of the law in that it implies that the jury must consider every lesser responsive verdict before it can find the defendant not guilty.

The questioned charge is correct and is one mandated by law. La.C.Cr.P. art. 804 provides in pertinent part:

B. When there are several grades of an offense contained in a single count, the court shall charge the jury as to each grade of which the defendant could be found guilty. The court shall in that case also charge the jury that if it has a reasonable doubt as to any or all grades of the offense charged it shall find the defendant not guilty of that grade, or all grades of the offense, as the case may be. (Emphasis supplied)

Assignment of error # 3 is without merit.

ASSIGNMENT #4

Appellant argues in Assignment of Error # 4 that taking the evidence in the light most favorable to the State, a rational jury could not find him guilty beyond a reasonable doubt. In other words, appellant challenges the sufficiency of the evidence upon which he was convicted under the above-enunciated test of Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

Appellant was originally indicted on two counts of aggravated rape. The first count dealt with vaginal penetration, the second with anal penetration. He was acquitted on the second count.

The elements which the State must prove in a prosecution for aggravated rape of a child under twelve (La.R.S. 14:42(4)) are (1) anal or vaginal penetration deemed to be without consent of the victim because of (2) the victim’s age.

In essence, appellant makes a two step argument that the evidence of the element of penetration is purely circumstantial. Firstly he argues that the jury did not base its verdict on the testimony of the victim, as is evidenced by their acquittal of him on the second count of anal penetration. Secondly appellant contends that the only difference in the evidence presented relative to the two counts was the doctor’s testimony, which was inconclusive and purely circumstantial.

Circumstantial evidence is defined as “[tjestimony not based on actual personal knowledge or observation of the facts in controversy, but of other facts from which deductions are drawn, showing indirectly the facts sought to be proved.” [citation omitted].

Direct evidence, by contrast, is “[evidence in form of testimony from a witness who actually saw, heard or touched the subject of interrogation.” [citation omitted].

The characterization of evidence as circumstantial rather than direct may have the effect of altering the State’s burden of proof to a stricter standard. Appellant argues that he should benefit from this stricter standard on review due to the nature of the examining doctor’s testimony.

We need not dwell on a discussion of this point, however, because appellant is in error in his argument that evidence of the element of penetration was purely circumstantial. The testimony of the young victim, though phrased in childish terminology, was quite explicit on this point, and constitutes direct evidence. That, coupled with the doctor’s testimony regarding his findings of a tear in the child’s hymen and redness and swelling in the vaginal area, were sufficient for a rational jury to find appellant guilty beyond a reasonable doubt, thus satisfying the standard of Jackson v. Virginia, supra, for review of sufficiency of the whole of the evidence, both direct and circumstantial, against appellant.

ASSIGNMENT # 5

In this assignment, appellant contends that the trial court erred when it refused to grant him a new trial based on the reasons set out in his Motion for New Trial.

Appellant submits that the ends of justice would best be served by the granting of a new trial, however, no pertinent legal grounds were demonstrated, as outlined by La.C.Cr.P. art. 851. The grounds submitted in the Motion for a New Trial were the same as the assignment of errors submitted to this court for review.

State v. Hicks, 395 So.2d 790, 797 (La.1981) held that “although a trial judge may grant a new trial on the ground that the ends of justice would thereby be served, a denial of a request for a new trial on this ground presents nothing for appellate review. [citations omitted].”

For the reasons which we have given in our discussion of assignments 1, 3, and 4, and for the reasons which we will give below, assignment of error # 5 is without merit.

ASSIGNMENT #2

In this assignment appellant raises the issue of whether the trial judge was required to instruct the jury that forcible rape is a responsive verdict to the charge of aggravated rape.

It is appellant’s argument that at the time of trial, the verdict of forcible rape was a statutorily mandated responsive verdict to the crime of aggravated rape under La.C.Cr.P. art. 814, and therefore the trial court had no discretion to omit the charge of forcible rape from the jury’s consideration.

While the crime of forcible rape was at the time of trial and continues to be a legislatively designated responsive verdict to the offense of aggravated rape under La.C.Cr.P. art. 814, appellant’s argument that the responsive verdicts under art. 814 are mandatory is contradicted by Louisiana jurisprudence, notably State v. Booker, 385 So.2d 1186 (La.1980) and State v. Dauzat, 392 So.2d 393 (La.1980). Booker and Dauzat discuss the meaning of “responsive” verdicts and which are mandatory. The two cases make a crucial distinction between legislatively provided responsive lesser verdicts as opposed to those “actual” lesser included offenses which contain all the elements found in the greater offense.

When the requested lesser offense contains all the essential elements of the greater offense, the defendant is entitled to have the jury consider that lesser included offense. When, however, an essential element of the lesser crime is lacking in the greater charged offense, both Booker and Dauzat hold that a conviction on a legislatively designated lesser offense which is unsupported by the evidence will be constitutionally infirm.

The test, as laid out in Dauzat, supra, is the following:

Where the definition of the greater crime does not necessarily include all the elements of the lesser, we will have to determine whether there is any evidence to support the conviction for the lesser offense even though it is a legislatively designated responsive verdict.

Dauzat, supra, at 396.

In the case now before us, we are faced with the Dauzat situation: a legislatively responsive verdict of forcible rape wherein all the elements of the lesser crime are not elements of the greater charged offense of aggravated rape.

The state, as evidenced by its response to defendant’s Bill of Particulars, prosecuted defendant for aggravated rape under subsection (4) of La.R.S. 14:42; the age of the victim was under 12, therefore she was incapable of consent.

Forcible rape is defined by La.R.S. 14:42.1 as follows:

Forcible rape is a rape committed where the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim because the victim is prevented from resisting the act by force or threats of physical violence under circumstances where the victim reasonably believes that such resistance would not prevent the rape.

Our review of the testimony in this case reveals no evidence of “force” as contemplated by the above-cited statute.

Appellant argues that the mere action of a full grown man lying on top of an 8 year old girl satisfies the element of force.

The young victim testified that Charles Henry instructed her to get in bed with him and she complied. Then he got on top of her and penetrated her. It is clear from her testimony that she did not even know what was about to happen to her. Under these facts, appellant’s argument that the victim’s testimony substantiates the use of force which the 8 year old did not resist because she believed her resistance would not prevent the rape is completely unsupported.

We hold that the trial judge was correct in excluding the charge of forcible rape from the jury’s consideration in this prosecution for aggravated rape. Though forcible rape is a legislatively designated responsive verdict to the offense of aggravated rape, it is not a true lesser included offense under R.S. 14:42(4) which is based on an element of lack of consent because of age. Instead Section 42.1 bases lack of consent on forces or threats of physical violence. Thus, all the elements of the lesser offense are not contained in the greater. Accordingly, since no evidence of force as defined in La.R.S. 14:42.1 was presented at trial by either side, forcible rape was not a proper charge under the circumstances of this case.

Were we to hold otherwise, the trial court would be in the anomalous position of being constrained to instruct the jury on a verdict which the evidence did not support, and which, if returned by the jury, would be open to attack on constitutional grounds of insufficiency of evidence and lack of notice.

The correctness of our result is further supported by the recent cases of State ex rel Elaire v. Blackburn, 424 So.2d 246 (La.1982) and State v. Dufore, 424 So.2d 256 (La.1982), as well as by a 1982 amendment to La.C.Cr.P. art. 814.

State v. Dufore explains as follows:

Following the Dauzat decision, the Legislature enacted Act 763 of 1982, adding Section C to Article 814. This amendment accords the trial court discretion, upon motion by either side, to refuse to instruct the jury on a responsive verdict, even though the offense is enumerated in Article 814, if the court determines that the evidence is insufficient to support that verdict. As noted above, however, this discretion exists only when the enumerated responsive verdict is not truly a lesser and included grade of the charged offense, and the accused must request the instruction (or object to the deficient instruction given by the court) in order to complain of the instruction on appeal or of the insufficiency of the evidence supporting the responsive verdict returned by the jury. La.C.Cr.P. Art. 841; State ex rel. Elaire v. Blackburn, 424 So.2d 246 (La.1982), decided this date.

State v. Dufore, supra, 258, n 2.

Assignment of Error # 2 is without merit.

For the foregoing reasons, appellant Charles Henry’s conviction is affirmed.

AFFIRMED.

      . Black’s Law Dictionary 221 (5th ed. 1979).

      . Black’s Law Dictionary 413 (5th ed. 1979).

      . See La.R.S. 15:438; State v. Shapiro, 431 So.2d 372 (La.) (1982). Recently the holding of the Shapiro case that Louisiana’s standard of proof regarding circumstantial evidence is stricter than the federal standard as enunciated in Jackson v. Virginia, has been seriously questioned by the Louisiana Supreme Court in State v. Chism, 436 So.2d 464 (1983) and State v. Sutton, 436 So.2d 471 (1983).


author: GRISBAUM, Judge.

text:
    August LENNIX v. ST. CHARLES GRAIN ELEVATOR COMPANY and Ideal Mutual Insurance Company.
    No. 83-CA-375.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Robert T. Hughes, Richard J. Garrett, New Orleans, for plaintiff-appellee.
    Adams & Reese, Alan Z. Zaunbrecher, New Orleans, for defendants-appellants.
    Before BOUTALL, C.J., and GRISBAUM and DUFRESNE, JJ.
   GRISBAUM, Judge.

This is a workmen’s compensation case. St. Charles Grain Elevator Company and its insurer, Ideal Mutual Insurance Company, appeal from a judgment awarding claimant, August Lennix, 450 weeks of compensation benefits of 66⅜ percent of his average weekly wages for a period not to exceed 450 weeks subject to a credit for any wages earned during that period, and medical payments of $10,571.83. Lennix appeals for attorney’s fees, penalties and legal interest from the date of judicial demand. We amend and affirm.

The issues are as follows:

1) Whether an accident occurred during the course and scope of Lennix’s employment with St. Charles Grain which caused him injury?

2) Whether Lennix was partially disabled [La.R.S. 23:1221(3) ]?

3) Whether St. Charles Grain was arbitrary and capricious in its refusal to pay workmen’s compensation benefits?

4) Whether Lennix is entitled to legal interest from the date of judicial demand?

Lennix, a 46 year old male laborer with an eighth grade education, alleges he was injured on March 9, 1981, while he was employed by St. Charles Grain. He claims he slipped and fell while carrying a 55 pound bag of “all purpose” material. He was alone at the time. Lennix had been injured while at work on several previous occasions. Before working for St. Charles Grain, Lennix had also injured his back in an automobile accident in 1966.

Addressing the initial issue of whether an accident occurred during the course and scope of Lennix’s employment which caused him injury, we note Lennix testified at trial as to the accident on March 9, 1981. He immediately reported his injury to his foreman, Sam Cortoza, (who responded jokingly) and eventually notified the plant superintendent, Warren Duffy, who instructed him to see a doctor and bring a diagnosis back to him.

Shandrof Burks, a union steward and Lennix’s co-worker, testified he learned of Lennix’s injury through his investigation of Lennix’s bad attendance record. He stated Lennix was asked to bring in doctors’ reports of why he had missed so much work. He further stated Lennix brought the necessary doctor’s proof to the plant superintendent, Warren Duffy. Joseph Cotton, also a co-worker, testified he knew of Len-nix’s injury some time after the accident.

During the week of this alleged accident, Lennix’s work record shows he worked only 24 hours. It also shows he did no work at all during the weeks ending in April 5, April 19, April 26, and May 3. During the following two weeks he worked only 16 hours each week.

Moreover, the medical testimony reflects Lennix’s medical treatment began on April 10, 1981 when he saw Dr. Arthur Axelrod, the company physician. He diagnosed Len-nix’s condition as arthritis of the spine and sent his diagnosis to the employer noting “degenerative disc disease lumbosacral junction, not industrial.” He noted Lennix was unable to return to work and referred him to an orthopedist, Dr. William Pusateri. When Dr. Pusateri first saw him, Lennix complained of pain in his right illiac crest. On May 13, 1981, Dr. Pusateri diagnosed Lennix’s injury as a lumbar strain. He saw Lennix several times in the summer and fall of 1981. In September of 1981, Dr. Pusateri referred Lennix to a urologist. When the urologist was unable to diagnose the problem, Dr. Pusateri recommended Lennix have a hospital work up. He was admitted on May 4,1982. After other tests were performed, a myelogram was performed which was abnormal. Dr. Kenneth E. Vogel, a neurosurgeon, was then called in, and Dr. Pusateri turned the case over to him.

Due to the abnormalities of the myelo-gram, Dr. Vogel had a discogram performed which revealed the L4-5 disc was the origin of Lennix’s pain. Dr. Vogel found a herniated lumbar disc. Upon Dr. Vogel’s recommendation, Lennix underwent a percutaneous discectomy on May 17, 1982. As of October 1982, Dr. Vogel felt Lennix had reached maximum medical improvement and discharged him from his care. Dr. Vo-gel recommended light duty work until May 1983 and reevaluation at that time. He regarded Lennix as disabled (10 or 15 percent medical impairment) from the time he first saw him in May of 1982 until at least the time of Dr. Vogel’s pre-trial deposition on November 30, 1982.

After reviewing the record including the deposition testimony of Dr. Pusa-teri, Dr. Axelrod, and Dr. Vogel, it appears “it is more probable than not” Lennix’s back injury was the result of an accident which occurred on March 9, 1981. This court reaches this conclusion because the causal relationship may be inferred when there is proof of an accident and an ensuing disability without an intervening cause. West v. Bayou Vista Manor, Inc., 371 So.2d 1146, 1147 (La.1979). Claimant’s uncontra-dicted testimony of the accident at work if plausible, consistent, and supported by corroborating circumstances is sufficient to constitute a preponderance of the evidence proving an accident. West, 371 So.2d 1146, 1147. As the trial court recognized in its reasons for judgment, the employer and its insurer failed to call witnesses which could have refuted Lennix’s testimony of an accident. His claim of a work-related accident, therefore, is unrebutted. His claim is also supported by work records indicating his absence from work for many weeks following the accident as well as the medical treatment for his back injury which commenced thereafter.

Moreover, even if there were a preexisting latent back disability, claimant is still entitled to worker’s compensation benefits when a work accident aggravates or accelerates it, producing disability. West, 371 So.2d 1146, 1149; Johnson v. Travelers Insurance Co., 284 So.2d 888, 891 (La.1973). Dr. Vogel testified there is no way to know when a herniation had occurred, and Dr. Pusateri also testified there is no way to know what caused Lennix’s back complaint. All the medical testimony indicates that a trauma is often the cause for this condition.

The court in Lucas v. Insurance Company of North America states:

“A claimant’s disability is presumed to have resulted from an accident, if before the accident the injured person was in good health, but commencing with the accident the symptoms of a disabling condition appear and continuously manifest themself afterwards, providing that the medical evidence shows there to be a reasonable possibility of cause or connection between the accident and the disabling condition.” Lucas v. Insurance Company of North America, 342 So.2d 591, 596 (La.1977).

Although Lennix had experienced previous injuries at work, there is no indication that he was not in good health at the time of the accident. His work records reflect he was consistent in his attendance in the year prior to his accident. Medical evidence and his work record indicate that after March 9, 1981 Lennix was out of work a considerable amount of time. He complained initially,to Dr. Axelrod, the company doctor, that he had pain in his lower back and right hip. This pain persisted throughout the summer and fall as was noted by Dr. Pusateri. Finally, in the spring of 1982 the source of pain was diagnosed as a herniated disc. We, therefore, find Lennix did prove an accident occurred on March 9, 1981 resulting in his back injury.

The second issue is whether Lennix was partially disabled. A worker is partially disabled by an injury if he is unable to perform the duty in which he was customarily engaged when injured or duties of the same or similar character, nature, or description for which he was fitted by education, training or experience. See, La.R.S. 23:1221(3). The record reflects Lennix had worked for St. Charles Grain for almost ten years prior to his accident. His job usually involved his performing tasks which were heavy in nature. None of the treating physicians, from the time of the accident until the trial in late 1982, recommended Lennix return to full gainful employment. Additionally, Dr. Vogel stated Lennix had a ten to fifteen percent medical impairment. We, therefore, conclude the trial court was not clearly wrong in finding Lennix partially disabled.

The next question is whether St. Charles Grain was arbitrary, capricious, or without probable cause in not paying Len-nix’s compensation benefits thereby entitling Lennix to penalties and attorney’s fees. The trial court did not award Lennix penalties and attorney’s fees, nor did it address this issue in its reasons for judgment. The purpose of the penalty provision is to discourage attitudes of indifference to the injured employee’s condition. Guillory v. U.S. Fidelity & Guaranty Insurance Company, 420 So.2d 119, 124 (La.1982). If the failure to pay compensation benefits is found to be arbitrary, capricious, or without probable cause, penalties and attorney’s fees may be awarded. Guillory, supra; Patton v. Silvey Companies, 395 So.2d 722, 726 (La.1981).

Dr. Axelrod diagnosed Lennix’s back condition as degenerative in nature and not industrial. The question of causality was a closely contested one. In light of the above facts, St. Charles Grain’s denial of compensation benefits is not arbitrary and capricious. See, Hammond v. Fidelity & Casualty Co. of New York, 419 So.2d 829, 833 (La.1982).

The final issue is whether Lennix is entitled to legal interest from the date of judicial demand. La.C.C.P. art. 1921 reads “[t]he court shall award interest in the judgment as prayed for or as provided by law.” (Emphasis added) The trial court did not award interest. Lennix’s petition included a prayer for legal interest, and, therefore, legal interest should have been included in the trial court’s judgment.

For the reasons discussed, the judgment of the trial court is amended to read as follows and, as amended, is affirmed:

It is ordered, adjudged and decreed there be judgment herein in favor of August Len-nix, and against St. Charles Grain Elevator Co. and Ideal Mutual Insurance Company decreeing August Lennix to be partially disabled and awarding him judgment for worker’s compensation benefits of 66⅜ percent of his average weekly wages for a period not to exceed 450 weeks, subject to a credit for any wages earned during this period, together with legal interest thereon from the due date until paid so long as Lennix’s disability continues not beyond a maximum of 450 weeks.

It is further ordered, adjudged and decreed there be judgment herein in favor of August Lennix and against St. Charles Grain Elevator Co. and Ideal Mutual Insurance Company for medical expenses of $10,-571.83. Costs of this appeal are taxed against defendants, St. Charles Grain Elevator Co. and Ideal Mutual Insurance Company.

AMENDED AND AFFIRMED.


author: DUFRESNE, Judge.

text:
    Jeanne Haydel Rome, Wife of/and Michael ROME v. STATE FARM MUTUAL AUTO INSURANCE CO. and Jeanne Rousseau.
    No. 83-CA-322.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Badeaux, Discon, Cumberland & Shear-man, Robert F. Shearman, New Orleans, for plaintiffs-appellants.
    Porteous, Hainkel, Johnson & Sarpy, Adrianne L. Baumgartner, New Orleans, for defendants-appellees.
    Before KLIEBERT, CURRAULT and DUFRESNE, JJ.
   DUFRESNE, Judge.

This is a tort action arising out of an automobile accident which occurred on December 25, 1980 on the Causeway Bridge in Jefferson Parish. Plaintiffs, Jeanne Hay-del Rome and Michael Rome, filed suit against Jeanne Rousseau and State Farm Mutual Automobile Insurance Company.

The underlying facts of this case are not disputed.

On December 25, 1980, at approximately 3:30 P.M. a collision occurred on the Causeway Bridge between a vehicle owned and operated by Jeanne Rousseau and one owned by John Rome and being driven by Jeanne Haydel Rome. The Rome vehicle was proceeding on the Causeway Bridge in a northerly direction towards Mandeville, Louisiana. The defendant, Jeanne Rous.seau was driving her vehicle on the Causeway Bridge traveling in the same direction. After driving in the right lane, Mrs. Rousseau then merged into the left lane and approximately six (6) or seven (7) miles onto the Causeway Bridge she asserts that she became ill with stomach cramps and could not return into the right lane because of impeding traffic. Consequently, she proceeded to stop her vehicle in the left lane. She contends that her flashers were on so as to forewarn oncoming vehicles.

The plaintiffs’ vehicle was traveling immediately behind a small truck at speeds allegedly not beyond the legal speed limit of 55 miles per hour. The plaintiffs allege that their vehicle was approximately five (5) to eight (8) car lengths to the rear of the truck.

The plaintiff-driver, Jeanne Haydel Rome, contends that she had been following the truck since she entered onto the Causeway Bridge. She stated that as the truck and her vehicle moved to the left lane and passed slower vehicles on the right, the truck upon seeing the defendants’ stopped vehicle suddenly swerved into the right lane and around the stopped automobile. The plaintiff-driver was unable to see in front of the truck and as a result, she was faced with an emergency situation. She slammed on her brakes but could not avoid colliding into the rear of the defendants’ vehicle which was stopped in the left lane.

Both the plaintiff-owner and plaintiff-driver sued Mrs. Rousseau and her automobile liability insurer, State Farm. The defendants filed a Reconventional Demand and a Third-Party Petition against the plaintiffs and the matter was tried without a jury. After the trial on the merits, the trial judge rendered judgment in favor of Michael Rome, the plaintiff-owner and against the defendants, State Farm and Jeanne Rousseau in the amount of $9,032.38; however, the judge dismissed the lawsuit of the plaintiff-driver, Jeanne Hay-del Rome and also dismissed the Reconven-tional Demand and the Third-Party Petition. From this judgment the plaintiff, Jeanne Haydel Rome has filed this devolu-tive appeal and State Farm and Jeanne Rousseau have answered the appeal.

On appeal the plaintiff has assigned the following errors:

1. The court erred in not applying the Doctrine of Sudden Emergency and in finding Jeanne Haydel Rome guilty of contributory negligence.

2. The court erred in not applying the law of Comparative Negligence and dismissing Jeanne Haydel Rome’s petition because of her contributory negligence.

The plaintiff contends that the defendant, Jeanne Rousseau violated LSA-R.S. 32:141 and that her negligence in doing so was the proximate cause of the accident. LSA-R.S. 32:141 reads as follows:

141. Stopping, standing or parking outside business or residence districts
A.Upon any highway outside of a business or residnece district, no person shall stop, park, or leave standing any vehicle, whether attended or unattended, upon the paved or main traveled part of the highway when it is practicable to stop, park or so leave such vehicle off such part of said highway, but in every event an unobstructed width of the highway opposite a standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicles shall be available from a distance of two hundred feet in each direction upon such highway.
B. The provisions of this Section shall not apply to the driver of any vehicle which is disabled while on the main traveled portion of a highway so that it is impossible to avoid stopping and temporarily leaving the vehicle in that position. However, the driver shall remove the vehicle as soon as possible, and until it is removed it is his responsibility to protect traffic.
C. The driver of' any vehicle left parked, attended or unattended, on any highway, between sunset and sunrise, shall display appropriate signal lights thereon, sufficient to warn approaching traffic of its presence.

The plaintiff argues that without this violation there certainly would not have been a collision, especially being stopped in the left (fast) or passing lane of traffic and in full view of all of the signs on the Causeway Bridge against stopping in this lane.

It is well settled law in Louisiana that violation of this statute constitutes civil negligence but is actionable only when it is shown that failure to follow a statute was a legal cause of the accident. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970); Dixie Drive It Yourself Sys. v. American Beverage Co., 242 La. 471, 137 So.2d 298 (1962).

Additionally, plaintiff must prove that there was a duty imposed upon defendant under the circumstances of the case; that the risk of the particular injury which the plaintiff suffered was within the scope of the protection of that duty; that defendant breached that duty; and that such breach of duty requires a response in damages. Pierre, supra; Dixie, supra; and State Farm Mutual Ins. Co. v. South Central Bell, 343 So.2d 758 (La.App. 3rd Cir.1977).

With respect to the above settled principles of law, any discussion of the additional elements of this analysis is unnecessary, as we agree with the trial court and find that the defendant, Jeanne Rousseau’s actions or omissions, as they were violations of existing state law, were a legal cause or a cause-in-fact of the accident. Cause-in-fact (or legal cause) has been defined as a “substantial factor in bringing about that harm.” Dixie, supra.

We agree with the trial judge and fail to understand why the defendant could not have moved her car into the right lane after the approaching traffic had passed. As the trial judge noted in his written reasons for judgment:

“She was able to put on her flashers. It appears to the court that her ability to continue moving in the car, if such were the actual case, contradicts her statement that she was unable to move to the right when it would have required a slight twist of the power driven steering.”

However, this court disagrees with the findings of the trial judge with regards to the application of comparative fault to the issue of (contributory) negligence on the part of Jeanne Haydel Rome. This court will agree that the plaintiff, Mrs. Rome, was contributorily negligent because this court must give great weight to the factual conclusions reached by the trial court, Canter v. Koehring Co., 283 So.2d 716 (La.1973), and may not substitute its own evaluations and inferences, for the reasonable evaluations and inferences of the trier of fact, unless those conclusions are clearly erroneous. Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980) and Esta v. Dover Corp., 385 So.2d 439 (La.App. 1st Cir.1980).

The trial court found Mrs. Rome had evidenced some degree of substandard conduct sufficient to constitute contributory negligence. Absent any clear error as to the trial court’s findings of fact, it shall be upheld. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The trial court’s findings of fact will not be disturbed on appeal unless they are “clearly wrong” Arceneaux, above.

The trial judge concluded in his written reasons for judgment, to wit:

“On the other hand the court feels that Mrs. Rome was negligent in that she depended on a driver ahead of her to “clear the road” for her. She failed to provide safe enough distance between vehicles to allow her to meet an emergency. It was a clear bright day and the only reason she didn’t see the stopped or slowly moving Rousseau vehicle was because she was following the pickup truck in a routine fashion and without attempting to observe the conditions of the road in front of the pickup truck. The excuse that she was unable to see over the pickup truck further indicates that she was blindly following the pickup truck at a fast though legal rate of speed. For these reasons, the court finds that it must reject the reconventional demand of State Farm and Mrs. Rousseau because of the negligence of Mrs. Rousseau as recited herein-above.”

Although this court shall follow the findings of contributory negligence on the part of Mrs. Rome, we hold that the trial judge failed to properly apply the existing law of comparative negligence to this case.

Comparative negligence is in its formative stages of judicial development and is not totally understood as to its applicability. However, in this case it should apply. In LSA-C.C. art. 2323 comparative negligence takes on the guide of contributory negligence, it reads as follows:

Art. 2323. When contributory negligence is applicable to a claim for damages, its effect shall be as follows: If a person suffers injury, death or loss as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the injury, death or loss.

Under existing Louisiana negligence law, the plaintiff’s recovery is reduced by the degree or percentage of negligence attributable to her, the same method of computation as to “damages” is used if both parties have suffered loss. As here, each party recovers from the other his total damages reduced by his share of the negligence. This legal principle avoids the seeming harshness of barring all recovery by a negligent plaintiff.

Throughout their pleadings and memorandums, neither counsel even hinted that the law of comparative negligence should be applied. However, in all claims occurring since August 1, 1980, Article 1917 of the Louisiana Code of Civil Procedure provides in part as follows:

“In nonjury cases to recover damages for injury, death or loss, whether or not requested to do so by a party, the court shall make specific findings that shall include these matters to which reference is made in Paragraph B of Article 1811 of this Code. These findings need not include reasons for judgment.” (Emphasis added)

Basically, C.C.P., Article 1811 provides that the trial court must in its reasons for judgment state whether or not the fault was a proximate cause of the damages and the degree of such fault expressed in percentages and the amount recoverable as damages expressed in dollars.

For the reasons set forth above, the judgment of the trial court is reversed and remanded for determination of the applicable degrees of comparative fault with regard to the plaintiff, Jeanne Haydel Rome and the defendant, Jeanne Rousseau, all in accordance with this opinion. As to all other issues on appeal the judgment of the trial court is affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.


text:
    Lloyd VAN GEFFEN, Jr., D.D.S. v. Frank L. HERBERT, D.D.S.
    No. 83-CA-269.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Kurt P. Forshag, Metairie, George C. Stringer, Jr., Harahan, for defendant-appellant.
    Patrick J. McCabe, Kenner, for plaintiff-appellee.
    Before BOUTALL, C.J., and KLIEBERT and DUFRESNE, JJ.
   DUFRESNE, Judge.

The only issue to be resolved in this case is whether a lessor acted unreasonably in refusing to permit a sub-lease to an orthodontist of premises which were originally leased solely for the practice of general dentistry. Because we find that the specialized practice of orthodontics is not included in the practice of general dentistry, we hold that the lessor acted reasonably in refusing consent to a sub-lessee whose use of the premises would have been in violation of the use clause of the original lease. We therefore reverse the decision of the trial court.

Dr. Frank Herbert, defendant-appellant and lessor, is the owner of a building which consists of only two dental suites. Until July, 1979, Herbert practiced pedodontics in one of the suites. At that time, he left his practice for teaching, and leased his office to Dr. Lloyd Van Geffen, Jr., plaintiff-ap-pellee. The lease included a clause which restricted the use of the premises solely to the “practice of general dentistry”. It also provided that the lessee could sub-let the property only in accordance with the terms of the lease and then only with the written consent of the lessor, which consent would not be unreasonably withheld.

In 1976, Herbert had also entered into a five year lease with Dr. Robert Gaudry, an orthodontist, for the other suite. Pursuant to that lease, Herbert paid for construction of the interior, in accordance with Gaudry’s specifications, to make it suitable for an orthodontic practice. The lease also contained a clause specifying that the premises were to be used only for the practice of orthodontics.

In late 1980 and early 1981, Herbert and Gaudry were negotiating for a renewal of the lease which was to expire on July 31, 1981. These negotiations broke down, however, because Herbert insisted on a five year term, and Gaudry refused to be bound for over two years.

Gaudry thereupon approached Van Geffen about the possibility of their sharing Van Geffen’s office and splitting the $2,000 per month cost of operating a joint office. These terms being acceptable to both, Van Geffen duly wrote to Herbert seeking his written approval of the sub-lease. Pertinent here is the following paragraph:

In connection with his practice of dentistry Dr. Van Geffen wishes to associate another dentist to assist him. In accordance with the written lease and addendum which are recorded in conveyance book number 960, folio 734, Dr. Van Geffen hereby gives you written notice of his intention to bring in an associate in the practice of dentistry. Such association will begin on or about June 15, 1981.

In response, Herbert granted his consent on condition that the rent be raised some $400 per month. This condition, though not appearing in the written lease held by Van Geffen, had apparently appeared in an unsigned Intent to Lease Agreement between these parties.

Van Geffen answered that as the $400 increase had never been incorporated into the final written lease, this condition could not be enforced. He also for the first time mentioned that the proposed sub-tenant was Gaudry, an orthodontist.

Herbert answered in turn that he considered the $400 increase binding as an oral agreement, and further that he was withdrawing his consent as to an orthodontist because such a sub-lessee would be in violation of the “general dentistry” use clause of the original lease.

Upon being informed that Herbert had withdrawn his consent, Gaudry abandoned any further efforts to sub-lease, and sought an office elsewhere.

Van Geffen then brought suit against Herbert alleging that his withdrawal of consent as to Gaudry was unreasonable. After trial on the merits, judgment was rendered in favor of Van Geffen. In his reasons for judgment the trial judge determined that as the clause in the Intent to Lease Agreement relating to the $400 per month increase in rent was not contained in the final written lease, it was not enforceable, and a refusal to consent to the sublease in order to exact this increase in rent was unreasonable. He further determined that the term “general dentistry” includes the practice of “orthodontics” and therefore that withdrawal of consent on grounds that the sub-lease would have violated the use clause was equally unreasonable.

Defendant now brings this appeal alleging that the trial court incorrectly determined that the practice of general dentistry includes the specialized practice of orthodontics, and thus erroneously rendered judgment in plaintiff’s favor.

Article 1947 of the Civil Code provides that terms of art or technical phrases appearing in contracts are to be interpreted according to their received meaning in the profession or art in question. Applying this principle to the contract of lease before us, we conclude that the practice of general dentistry does not include the specialized practice of orthodontics. Testimony by several expert dental witnesses was uniformly to the effect that an orthodontic specialist cannot practice general dentistry without losing his certification as a specialist. Gau-dry testified unequivocally that had he become associated with Van Geffen he had no intention of practicing general dentistry. In light of this unrefuted testimony we can only conclude that a specialist in orthodontics is not engaged in the practice of general dentistry, and that the sub-lease to Gau-dry would have violated the use limitation in the original lease.

We also point out that the trial court’s determination to the contrary was apparently based on testimony that a general dentist can practice orthodontics, although not as-a specialization. While we can appreciate how this fact led him to conclude that orthodontics lies within the field of general dentistry, such a determination actually inverts the proper inquiry here. The question is not whether Van Geffen could practice orthodontics on the premises; it is rather, whether Gaudry would or could have practiced general dentistry as specified in the use clause of the lease. As we have already determined that Gaudry had no intention of practicing general dentistry as an associate of Van Geffen, we conclude that Herbert’s withdrawal of his consent to Gaudry as a sub-lessee was reasonable in that such a sub-lease would have violated the explicit use limitation in Van Geffen’s lease, i.e. that the premises be used solely for the practice of general dentistry.

We also note that the trial court determined that Herbert had acted in bad faith. Our reading of his reasons for judgment is that this bad faith finding followed from a determination that Herbert had no legitimate interest in enforcing the use clause, but rather belatedly raised this issue when he discovered first that he could probably not exact a higher rent, and second, that the proposed sub-tenant would be lost to him as a direct tenant in the other suite. The evidence, however, does not sustain these findings.

In Van Geffen’s first request letter, quoted above, there was no indication that he intended to bring in an associate not engaged in the practice of general dentistry. On the contrary, the letter specifies that he intended to bring in an associate under the terms of the lease agreement, and Herbert granted his consent on the strength of this representation. Upon discovering the true nature of the sub-lessee, Herbert had the right to insist on compliance with the use clause, and did not act in bad faith in rejecting the orthodontist as a sub-lessee.

As to the loss of Gaudry as a direct tenant, we find no indication in the record that this consideration played any part in Herbert’s rejection of Gaudry. The evidence is rather that Herbert had originally paid to have Gaudry’s office built for orthodontic practice, and not for other types of dentistry. Specifically, the record shows that an orthodontist uses one large room with several dental chairs, while other types of dentists use individual cubicles with one chair in each. Herbert testified that had he permitted Gaudry to practice as an orthodontist in Van Geffen’s office, it would have been difficult to rent Gaudry’s old suite to another orthodontist because of direct competition across the hall. He would therefore probably have had to redesign Gaudry’s old space at considerable expense to himself. Again, we find no bad faith in Herbert’s actions here.

In regard to the $400 increase in rent, we agree with the trial court that this provision is unenforceable because it does not appear in the final written lease agreement between Van Geffen and Herbert, Civ.Code, Art. 2276. Had the loss of this increase been Herbert’s primary motive in rejecting Gaudry, we would have agreed that he acted unreasonably. However, as we find that the rejection of Gaudry was based on the use clause, we hold that this rejection was a reasonable exercise of a right provided in the lease.

We finally note that Van Geffen is a dentist and therefore certainly knew the distinction between general dentistry and dental specializations. Moreover, we reiterate that we reject the argument that because a general dentist can practice all specializations, that the use clause therefore did not clearly prohibit use of the premises by any specialist. Had the clause merely restricted the use to “dentistry”, we might be inclined to hold otherwise, but as has already been shown, there is a definite distinction made in the dental profession between general dentists and specialists, and it is clearly this distinction which was contemplated by these two dentists in confect-ing the lease.

For the foregoing reasons, the judgment of the trial court is hereby reversed.

All costs of this appeal are to be paid by the appellee.

REVERSED.


author: CHEHARDY, Judge.

text:
    Robert WACHTER v. Angela WACHTER.
    No. 83-CA-265.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.

      Leonard K. Fisher, Jr., Boutte, for appellant.
    Randy O. Lewis, Luling, for appellee.
    Before CHEHARDY, KLIEBERT and CURRAULT, JJ.
   CHEHARDY, Judge.

In this dispute over child custody, the mother appeals from a judgment awarding temporary custody to the father. At issue are the enforcement of a prior New Jersey judgment awarding custody to the mother, and the jurisdiction of the Louisiana court to decide custody, under the Uniform Child Custody Jurisdiction Act. We affirm the district court’s judgment in part, and set it aside in part.

The following facts are relevant to the jurisdictional issues. Robert and Angela Wachter had lived in New Jersey with their two minor children, Robert Shawn and Lorelei, since January 1981. In June 1982, Robert was hired to work at the Waterford III Nuclear Plant in St. Charles Parish, Louisiana. On July 3, 1982 Angela informed Robert that she had received a job offer to work at the Oyster Creek Nuclear Generating Station in New Jersey (where Robert was then working) and that she would not move to Louisiana with him. The children were in Idaho during the month of July, visiting their maternal grandparents.

Robert moved to Louisiana in early July to start his new job. On August 4 the children returned to New Jersey from Idaho. On August 10 Robert came back to New Jersey, unknown to Angela. His wife and children were staying with friends of hers. While Angela was temporarily out of the house, Robert took the children, telling Angela’s friends he was just taking them to get ice cream. The next day Angela received a telephone call from a friend of Robert’s, who told her Robert had taken the children back to Louisiana with him.

On August 19, 1982, Angela Wachter filed a complaint against Robert in the Superior Court of Ocean County, New Jersey, seeking a divorce and custody of the children. On the same date, the New Jersey court issued an ex parte order vesting temporary custody of the children in Angela, ordering Robert to return the children to their mother within 10 days, and setting a hearing on these matters for September 3, 1982. (In discussing these, and all subsequent pleadings, we omit mention of the allegations relating to the parties’ demands for divorce and/or separation, because the only issue before us is the custody of the children.)

As far as can be determined from the record, the hearing set for September 3 did not take place until September 13, 1982. Robert Wachter was neither present nor represented by counsel. The New Jersey court issued an order directing Robert to return the children to Angela by September 13, continuing temporary custody of the children with Angela, and restraining the parties from removing the children again from New Jersey if they were returned to that state. On September 8, Angela’s New Jersey attorney had sent a letter to Robert by certified mail to inform him the judge would be signing the order that would demand the return of the children by September 13. The record does not reflect whether Robert received the letter.

On September 17, 1982 the New Jersey court issued an order for a bench warrant and for removal of the children from Louisiana to New Jersey, directing the Sheriff of St. Charles Parish to arrest Robert Wachter and to extradite him to New Jersey for his failure to obey the court’s September 13 order. Angela was thereby authorized to remove the children from Robert’s domicile to relocate them to New Jersey.

Meanwhile, Robert Wachter had filed his own petition for separation in the 29th Judicial District Court for St. Charles Parish, Louisiana, on September 3, 1982. In that petition he prayed for pendente lite custody of the children and permanent custody thereafter. He also asked for an ex parte order for temporary custody, on the ground that Angela might attempt to remove the children from the jurisdiction. By ex parte order, the court appointed an attorney to represent Angela, granted temporary custody to Robert, and set a hearing on the custody issue for October 13, 1982.

On October 8, 1982, Angela’s court-appointed attorney filed a combination exception/motion to recognize foreign judgment. In that pleading Angela alleged the Louisiana court was without authority to grant ex parte temporary custody to Robert because Louisiana law does not provide for such action without a hearing; she pleaded lis pendens and res judicata, on the ground the New Jersey court had jurisdiction over all matters relating to the marriage, and custody of the children had already been awarded to Angela; finally, Angela moved to have the New Jersey court orders recognized and made executory in Louisiana. The hearing on this motion was set for the same date as the hearing on Robert’s custody rule.

That hearing was held as set on October 13, 1982. Both Robert and Angela were present and represented by counsel. After hearing testimony from both parties, the trial judge rendered judgment in favor of Robert. The judge ruled that the New Jersey judgment was not entitled to recognition in Louisiana because the New Jersey court did not “follow substantive rules providing for service of process and legal delays within which to respond to any petition for custody.” Further, the judge held, the New Jersey court did not have jurisdiction over the children at the time Angela Wachter brought suit, because the children had already arrived in Louisiana and were “residing under the roof of their natural father,” so that they were domiciled within the 29th Judicial District Court’s jurisdiction “under the provisions of R.S. 13:1570, thus this court became responsible for awarding custody after a contradictory hearing.” Accordingly, by judgment dated October 14, 1982, the judge awarded custody to Robert and set visitation rights for Angela.

Angela Wachter has appealed. She contends on appeal that the trial judge erred in failing to recognize the decree of the New Jersey court; in the alternative, that the trial judge erred in finding it was in the best interest of the children to be placed in Robert’s custody.

ENFORCEABILITY OF NEW JERSEY JUDGMENT

Although the result reached by the trial judge on the question of the New Jersey judgment may have been correct, it is clear he did not follow the appropriate law in reaching it. To determine whether he erred, therefore, we must review the New Jersey judgment independently.

Counsel for both parties cited the Uniform Child Custody Jurisdiction Act in support of their positions. In fact, there are two statutory schemes the trial judge should have considered in determining whether to recognize the New Jersey judgment.

The first is Title 28 U.S.C. Sec. 1738A, also known as the Parental Kidnapping Prevention Act of 1980 (PKPA). It mandates that every state shall give full faith and credit to child custody determinations made by courts of another state, provided such determinations are made consistently with the provisions of the PKPA.

Paragraph (e) of the PKPA requires,

“Before a child custody determination is made, reasonable notice and opportunity to be heard shall be given to the contestants, any parent whose parental rights have not been previously terminated and any person who has physical custody of a child.”

In addition, paragraph (g) states,

“A court of a State shall not exercise jurisdiction in any proceeding for a custody determination commenced during the pendency of a proceeding in a court of another State where such court of that other State is exercising jurisdiction consistently with the provisions of this section to make a custody determination.”

Paragraph (c) provides,

“A child custody determination made by a court of a State is consistent with the provisions of this section only if—
(1) such court has jurisdiction under the law of such State; and
(2) one of the following conditions is met:
(A) such State (i) is the home State of the child on the date of the commencement of the proceeding, or (ii) had been the child’s home State within six months before the date of the commencement of the proceeding and the child is absent from such State because of his removal or retention by a contestant or for other reasons, and a contestant continues to live in such State;
(B)(i) it appears that no other State would have jurisdiction under subpara-graph (A), and (ii) it is in the best interest of the child that a court of such State assume jurisdiction because (I) the child and his parents, or the child and at least one contestant, have a significant connection with such State other than mere physical presence in such State, and (II) there is available in such State substantial evidence concerning the child’s present or future care, protection, training, and personal relationships;
(C) the child Js physically present in such State and (i) the child has been abandoned, or (ii) it is necessary in an emergency to protect the child because he has been subjected to or threatened with mistreatment or abuse;
(D)(i) it appears that no other State would have jurisdiction under subpara-graph (A), (B), (C), or (E), or another State has declined to exercise jurisdiction on the ground that the State whose jurisdiction is in issue is the more appropriate forum to determine the custody of the child, and (ii) it is in the best interest of the child that such court assume jurisdiction; or
(E) the court has continuing jurisdiction pursuant to subsection (d) of this section.” (Emphasis added.)

Paragraph (b)(4) of the PKPA defines “home State” as,

“** * the State in which, immediately preceding the time involved, the child lived with his parents, a parent, or a person acting as parent, for at least six consecutive months * * *. Periods of temporary absence of any of such persons are counted as part of the six-month or other period.”

The second statutory scheme we must consider is the Uniform Child Custody Jurisdiction Act (hereinafter UCCJA), adopted by Louisiana in 1978 (LSA-R.S. 13:1700 to 13:1724) and by New Jersey in 1979 (NJSA 2A:34-28 to 2A:34-52). See 9 Uniform Laws Annotated, Master Edition. (We take judicial notice of New Jersey’s laws, as required by LSA-C.C.P. art. 1391.)

Section 13 of the UCCJA (adopted in •Louisiana as LSA-R.S. 13:1712 and in New Jersey as NJSA 2A:34-41) provides the court of each state shall recognize and enforce an out-of-state decree when the court of the other state assumed jurisdiction under statutory provisions substantially in accordance with the Act, or when the decree was made under factual circumstances meeting the jurisdictional standards of the Act.

Section 5 of the UCCJA (LSA-R.S. 13:1704 in Louisiana, NJSA 2A:34-33 in New Jersey) provides for various methods of giving notice to persons outside the state. Paragraph (b) states that notice under this section shall be served, mailed or delivered at least 10 or 20 days before any hearing in the state. As adopted in Louisiana, the Act requires a minimum of 10 days notice; as adopted in New Jersey, however, it requires at least 20 days’ notice. This time period may be shortened by the court if the matter is “emergent.”

Section 6 of the UCCJA (LSA-R.S. 13:1705 in Louisiana, NJSA 2A:34-34 in New Jersey) states, in pertinent part:

“(a) A court of this State shall not exercise its jurisdiction under this Act if at the time of filing the petition a proceeding concerning the custody of the child was pending in a court of another state exercising jurisdiction substantially in conformity with this Act, unless the proceeding is stayed by the court of the other state because this State is a more appropriate forum or for other reasons.”

The other paragraphs of that section provide further that before hearing a custody petition, the court shall make efforts to determine whether a custody proceeding is pending in another state. If such a proceeding is pending the court shall stay its proceeding and communicate with the court in which the other proceeding is pending to determine which is the more appropriate forum.

Applying both the PKPA and the UCCJA to the case before us, we conclude the trial court was correct in refusing to recognize and enforce the New Jersey judgment placing custody in Angela. As did the trial judge, we find the New Jersey court failed to follow the legal requirements for notice in hearing the custody proceeding. Specifically, the petition and order setting the custody hearing for September 3, 1982 were not served on Robert Wachter until August 30, 1982. Although the hearing did not actually take place until September 13, this still does not satisfy the requirements of the New Jersey version of the UCCJA, NJSA 2A:34-33, because the New Jersey statute requires at least 20 days’ notice before any hearing. Since the timing of the hearing did not comply with-the law, clearly the New Jersey court’s jurisdiction over Robert Wachter was not substantially in accordance with the Act at the time the judgment was rendered and so that decree was not enforceable in Louisiana.

JURISDICTION OF LOUISIANA COURT

On the other hand, we find the district court erred in finding it had jurisdiction to decide custody on its own.

Both the PKPA and the UCCJA forbid a court to exercise jurisdiction in a custody proceeding where there is a custody proceeding already pending in another state which is exercising jurisdiction according to the provisions of the respective Acts.

28 U.S.C. Sec. 1738A(c), set forth above, describes the circumstances under which a child custody determination is consistent with the provisions of the PKPA. Under paragraph (c)(2)(A)(ii), it is evident that only New Jersey would have jurisdiction in this case, because New Jersey was the home state of the Wachter children at the time the New Jersey proceeding was filed. Under the PKPA, Louisiana could not have jurisdiction at the same time as New Jersey unless the children had been abandoned or needed emergency protection from abuse. Since neither of these emergency situations applied to the Wachter children, only New Jersey had jurisdiction under the PKPA.

It can be argued that Louisiana had simultaneous jurisdiction with New Jersey under the “significant connection” definition of the UCCJA. See Revere v. Revere, 389 So.2d 1277 (La.1980); LSA-R.S. 13:1702(A)(1) and (A)(2). Nonetheless, under the “Simultaneous Proceedings” portion of the UCCJA (enacted as LSA-R.S. 13:1705 in Louisiana, and discussed earlier in this opinion), it is plain that the Louisiana court should have deferred to the New Jersey court’s jurisdiction, or at least have consulted with the New Jersey court to determine the more appropriate forum, because the New Jersey proceeding was pending when the petition was filed.

“It is evident that jurisdiction may exist in two different states under the home state and significant connection standards. When this occurs, it is not necessary that the significant connection state defer in every case to the home state. The conflict is avoided by reference to priority of filing (see R.S. 13:1705, which requires a court with jurisdiction under the uniform law to defer to the court of another state with uniform law jurisdiction when the first proceeding was filed in the latter state) and to factors indicating Louisiana is an inconvenient forum (see R.S. 13:1706, which encourages judicial restraint when another state with jurisdiction under -the uniform law appears to be in a better position-to determine custody).” (Footnotes omitted.) Revere v. Revere, 389 So.2d at 1280.

The Louisiana district court’s determination that jurisdiction vested in it under LSA-R.S. 13:1570 was incorrect. That statute describes the jurisdiction of the district court when acting in its capacity as a juvenile court, and is applicable only to children in need of care or supervision or who are delinquent. It cannot be used simply to change custody from one parent to another. State in Interest of Thompson, 372 So.2d 1255 (La.App. 3d Cir.1979); C.J.P. art. 15.

Further, the UCCJA states that physical presence of the child, while desirable, is not a prerequisite for jurisdiction to determine his custody. LSA-R.S. 13:1702(C); NJSA 2A:34-31(c). Accordingly, the district court erred in stating New Jersey had no jurisdiction because the children were in Louisiana with their father when the New Jersey petition was filed.

We conclude that under the standards prescribed by the Parental Kidnapping Prevention Act of 1980, 28 U.S.C. Sec. 1738A, jurisdiction to determine the custody of the Wachter children vested exclusively in the Superior Court for Ocean County, New Jersey. Although the jurisdiction under the Uniform Child Custody Jurisdiction Act is broader, and might be construed to bestow simultaneous jurisdiction on Louisiana in this case, we conclude the federal act pre-empts state law under U.S. Const. Art. IV, Sec. 1, as concerning full faith and credit among states. That article provides:

“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”

Our conclusion herein is pursuant to the expressed purposes of not only the federal law but also the UCCJA, especially that of avoiding jurisdictional competition and conflict between state courts in matters of child custody. Sec. 7, Pub.L. 96-611; LSA-R.S. 13:1700; NJSA 2A:34-29. See also, Dillon v. Medellin, 409 So.2d 570 (La.1982); Revere v. Revere, supra.

Accordingly, the judgment of the district court is affirmed insofar as it refused to enforce the September 13, 1982 judgment of the New Jersey court, but set aside insofar as it purported to exercise its own jurisdiction to determine custody. The case is remanded and the district court is ordered to stay further custody proceedings and to communicate with the New Jersey court to determine which is the more appropriate forum, pursuant to LSA-R.S. 13:1705. Each party is to pay his or her own costs for this appeal.

AFFIRMED IN PART; SET ASIDE IN PART; AND REMANDED.


text:
    Elliott P. BOISDORE v. Ben BRIDGEMAN, Mary Bryant and Janet Raineri.
    No. 83-CA-352.
    Court of Appeal of Louisiana, Fifth Circuit.
    Oct. 12, 1983.
    Rehearing Denied Nov. 17, 1983.
    Writ Denied Jan. 27, 1984.
    Satterlee, Mestayer & Freeman, A.D. Freeman, New Orleans, for plaintiff-appellant.
    John M. Holahan, New Orleans, for defendants-appellees.

      Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CHEHARDY, Judge.

Elliott Boisdore instituted this suit for writs of quo warranto and mandamus to direct defendants to show by what authority they claimed to be officers, directors and/or stockholders of Gilted Wood, Inc., and to prohibit them from exercising any authority in that corporation.

Plaintiff sought to have himself recognized as president and sole shareholder, and to have stockholders’ meetings on March 19 and April 30, 1982 declared null and void.

The defendants, attorney Ben Bridge-man; Janet Raineri, his secretary; and Mary Bryant, filed answers in the form of a general denial and an exception of res judi-cata, claiming Boisdore owned only one-third of the corporation, as determined in a prior suit.

Following trial, judgment was rendered maintaining the exception and ordering Bridgeman and Raineri to furnish plaintiff with an accounting of the creditors and debtors of the corporation and the nature and extent of such obligations. The meeting of March 19, at which Bridgeman was elected president and Raineri secretary of the corporation, was held valid. The meeting of April 30, 1982, and the resolutions adopted therein, were declared invalid.

Plaintiff has appealed.

The record reflects the following facts:

In 1979 Boisdore, a real estate broker, was managing property located at 1615 Governor Nichols Street in the City of New Orleans consisting of 24 rental units. The property was run down and in need of total renovation.

Plaintiff, aware of the incentives to renovate substandard housing offered by the City and the federal government in the form. of subsidies and grants, wanted to purchase the property and renovate it. He contacted Bridgeman, to form a corporation to carry out this objective.

Gilted Wood, Inc., was thus formed on August 10,1979. Boisdore was named president and all of the stock of the corporation (100 shares of no par value) was issued in his name. He endorsed the certificates in blank and executed separate assignments of the shares immediately thereafter.

Plaintiff claims he did not realize he was signing an assignment, but thought his signature was only necessary so the stock could be pledged when financing was secured.

According to Bridgeman, Boisdore put up no money, but was to receive one-third of the corporation in return for finding the property, securing the government subsidies and low-interest loan, carrying out the renovations, collecting the rents, and managing the property thereafter. Bridgeman, in return for rendering legal services and finding investors, was to receive one-third ownership of the corporation.

Bridgeman interested Mrs. Bryant in the project and she invested $75,000, enabling the corporation to purchase the property and to begin the work. In return for her investment defendants claim Mrs. Bryant became owner of the other one-third of the corporation. No other investors were found.

The renovations were completed by Bois-dore after the government grants and loans were secured, and he assumed management of the project, but the corporation soon encountered financial difficulties.

Mrs. Bryant was concerned because she had not been repaid, and Boisdore and Bridgeman had a conflict over various expenditures. When the parties were unable to resolve their differences, Boisdore filed the prior suit against Gilted Wood, Inc., seeking involuntary liquidation of the corporation and to be named sole owner.

The trial court dismissed that suit with prejudice. It found no ground to compel a liquidation, and determined that plaintiff owned only one-third of the corporation. No appeal was taken from that judgment. Instead, plaintiff thereafter filed this suit for quo warranto and mandamus.

In this court appellant contends the trial court erred in: (1) maintaining the exception of res judicata; (2) maintaining the validity of the shareholders’ meeting of March 19,1982; (3) failing to determine the officers, directors and/or shareholders, and the extent of their participation in the corporation; and (4) failing to exercise its equity jurisdiction, even though not requested to do so, to appoint a temporary receiver and freeze the activities of the corporation “pending a determination of the propriety of the actions of all individuals involved since the inception of the corporation and the acquisition of the complex.”

We agree that maintaining an exception of res judicata is incorrect where two suits fail to meet the three necessary requirements to support such finding, namely, the thing demanded, the parties concerned, and the cause must be the same. See LSA-C.C. arts. 2286, 3556; Randall v. Jena Wire and Cable Co., 415 So.2d 564 (La.App. 3d Cir.1982); First Guaranty Bank v. Durham, 409 So.2d 380 (La.App. 4th Cir.1982); State v. Cormier, 378 So.2d 448 (La.App. 3d Cir.1979).

Nevertheless plaintiff is estopped from relitigating his ownership of the corporation in this suit since he failed to appeal from the prior judgment. The res judicata exception in the instant case is simply mislabeled.

Furthermore Boisdore confirmed that his ownership was limited to one-third of the corporation in a letter written to interest prospective investors, as follows:

“3443 Esplanade Avenue
New Orleans, Louisiana 70119
September 13, 1979
TO WHOM IT MAY CONCERN:
IN RE: Gilted Wood, Inc.
Stock Ownership
This is to certify that I, Elliott P. Bois-dore, was the incorporator and President of said corporation.
The stock book reflects that all shares were issued to me, and belong solely to me.
This is to further certify that, in truth and in fact, I am the owner of 33V3% of said corporation. The other 66⅜% is owned by investors obtained for ’ this project by Ben Daly Bridgeman.
Very truly yours,
/s/ Elliott P. Boisdore
Elliott P. Boisdore”

Appellant’s brief was directed to the exception of res judicata, and offered no support for his other contentions. Nevertheless, we have considered the remaining arguments.

Plaintiff complains he was not notified of the stockholders’ meeting 10 days prior thereto, as provided by law and the articles of the corporation. On March 10 the notice was sent to plaintiff’s office by certified mail for the meeting which was to be held on March 19, 1982..

Plaintiff attended the meeting, did not complain, and participated in the vote wherein Bridgeman and Raineri were elected officers. His attorney was also present. Under the circumstances, plaintiff cannot now attack the validity of the action taken at that meeting. See Simon Borg & Co. v. New Orleans City R. Co., D.C. 1917, 244 F. 617.

We likewise find no duty on the part of the trial court to appoint a temporary receiver, or to freeze the activities of the corporation. In the absence of such a request and in view of the evidence offered, the court would have been remiss in taking such action.

We hold these arguments have no merit and do not warrant further consideration.

Plaintiff’s principal purpose in this suit appears to be to relitigate his ownership in the corporation. That matter was set to rest in the prior suit. He cannot reurge the issue here.

For the reasons assigned the judgment is amended to delete the misnomer “res judi-cata”, and affirmed insofar as it acknowledges plaintiff’s ownership as one-third of the corporation, as determined by the prior unappealed judgment.

In all other respects the judgment appealed from is affirmed. All costs in both courts are to be paid by appellant.

AMENDED AND AFFIRMED.

      . Boisdore v. Gilted Wood, Inc., Suit No. 263-183 of the docket of the 24th Judicial District Court for the Parish of Jefferson, filed February 5, 1982.

      . The property cost $220,000. The down payment consisted of $45,000 of Mrs. Bryant’s money, a prior mortgage was assumed, and the balance of her funds was used to begin the renovation.