text:
    Harvey LOWE, Jr., Plaintiff-Appellant, v. Joe Ollie RIVERS et al., Defendants-Appellees.
    No. 15947-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Simmons, Nelson & Dunn by Otha Curtis Nelson, Sr., Baton Rouge, for plaintiff-appellant.
    Dawkins, Coyle & Carter by Michael S. Coyle, Ruston, for defendants-appellees.
    Before MARVIN, FRED W. JONES, Jr: and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

On January 25, 1982 Lowe sued Rivers and his “unknown insurer” for worker’s compensation benefits based upon an injury which allegedly occurred in the course and scope of the claimant's employment with Rivers on March 6, 1981. On March 22, 1982 Lowe filed an amended petition, adding as a defendant Union Wood Company, Inc. (“Union Wood”), but no factual basis for this alleged liability was asserted.

Union Wood filed an exception of prescription, asking that the suit be dismissed as to it because of plaintiff’s failure to sue the exceptor within one year from the date of the alleged injury. The exception was tried on September 21, 1982. Subsequently, in written reasons for judgment, the trial judge found that the filing of the suit against Rivers did not interrupt prescription as to Union Wood because the two defendants were not solidarily bound. Pursuant to that ruling, judgment was signed on December 20, 1982, sustaining the plea of one year prescription and dismissing the suit as to Union Wood. No appeal was taken from this judgment.

In the meantime, on October 15, 1982, plaintiff filed a second amended petition, again naming as defendants Rivers and Union Wood, but also adding as defendants International Paper Company and Georgia Casualty and Surety Company. Otherwise, the factual allegations of the original and first amended petition were reiterated.

On March 28, 1983 Union Wood leveled an exception of res judicata at the second amended petition insofar as it again named the exceptor as a defendant, asserting that this matter was definitively resolved by the judgment sustaining its plea of prescription. The trial judge agreed and on June 29, 1983 signed a judgment sustaining the exception of res judicata, again dismissing the suit as to Union Wood.

Plaintiff appealed the last described judgment, arguing in essence that the trial court erred in its ruling that the December 20, 1982 judgment was res judicata as to the second amended petition filed on October 15, 1982.

For the reasons hereinafter detailed, we find plaintiffs argument untenable and af- . firm the district court judgment..

A judgment that determines the merits in whole or in part is a final judgment. A final judgment is definitive when it has acquired the authority of the thing adjudged. La.C.C.P. Articles 18.41, 1842.

The authority of the thing adjudged takes place only with respect to what was the object of the judgment. The thing demanded must be the same; the demand must be founded on the same cause of action; the demand must be between the same parties, and formed by them against each other in the same quality. La.C.C. Article 2286; Reaux v. Iberia Parish Police Jury, 411 So.2d 727 (La.App. 3rd Cir. 1982).

It was held in Mitchell v. Bertolla, 340 So.2d 287 (La.1976) that the phrase “cause of action” in Article 2286 is to be interpreted to mean “cause”, which refers to “the juridical or material fact which is the basis of the right claimed, or the defense pleaded.” p. 291.

There is no question but that plaintiffs second amended petition simply repeated the same “cause” as the original and first amended petitions and that the thing demanded was the same. The only change effected by the last pleading was the addition of other parties. This change was immaterial to the question of the efficacy of Union Wood’s exception of res judi-cata. We pointed out in Johnson v. Lemons, 157 So.2d 752 (La.App.2d Cir.1963):

“[pjlaintiff ... cannot, by merely adding parties, diminish the force and effect of the peremptory exception of res judi-cata as between all the parties with whom he has litigated the issues to a final judgment.” p. 757.

Also see Giroir v. Dumesnil, 172 So.2d 89 (La.App. 1st Cir.1965).

The thrust of plaintiffs argument on appeal appears to be that the trial judge erred in sustaining the plea of prescription. This issue is clearly foreclosed since plaintiff failed to appeal from that judgment. Matters once finally determined by a court of competent jurisdiction can never again be called into question by the parties, or their privies, notwithstanding the decree may have been erroneous and subject to certain reversal upon appeal. California Company v. Price, 234 La. 338, 99 So.2d 743 (1957).

The fact that the judgment sustaining the plea of prescription did not specifically refer to the second amended petition is of no significance. That judgment definitively resolved the “cause” alleged and the thing demanded as between these parties.

For these reasons, we conclude that the trial judge correctly sustained the exception of res judicata and affirm the district court judgment to that effect, at appellant’s cost.


source: Caselaw Access Project

author: FRED W. JONES, Jr., Judge.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Larry Wayne SHOWS, Appellant.
    No. 15949-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.

      Raymond L. Cannon, Indigent Defender, Tallulah, for appellant.
    James David Caldwell, Dist. Atty. by Felicia Toney Williams, Asst. Dist. Atty., Tal-lulah, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In an action brought under the civil enforcement provisions of the Uniform Reciprocal Enforcement of Support Act [“URE-SA”], La.R.S. 13:1661-1688, the defendant father was ordered to pay $750 per month for the support of his children. Defendant appealed the judgment fixing child support, contending that the award was grossly excessive under the circumstances.

By judgment dated June 16, 1980, rendered in the Sixth Judicial District Court for Madison Parish, Willa Ann Shows received a legal separation from Larry Wayne Shows, the custody of their four minor children, and an award of $550 per month child support. On August 26, 1982, Mrs. Shows was awarded a divorce judgment by a Mississippi court, but no mention was made therein of child support.

This URESA proceeding was initiated on September 29, 1982 when Mrs. Shows filed a Bill of Complaint in a Mississippi Chancery Court, alleging that her former husband was not meeting his child support obligation. Pursuant to URESA, a copy of that complaint was forwarded to and filed in the office of the Clerk of Court of Madison Parish, where the defendant father allegedly resided. Thereupon, an assistant District Attorney for Madison Parish filed a petition on behalf of Mrs. Shows requesting the juvenile court to fix a hearing date, order defendant to appear thereat, and fix an appropriate child support award.

At the hearing Mrs. Shows testified that she was unemployed [having lost her former job] and that her estimated monthly expenses [for herself and three children living at home] were $1147.95. She further stated that her former husband was a self-employed mechanic who, during their marriage [when she kept his business records] had an average monthly income of from $1600 to $2000.

On his part, the defendant testified that he was in severe financial straits, could not pay the utility bills for his garage, had to live with his mother, and was heavily in debt.

At the conclusion of the hearing, there was rendered against the defendant father a judgment containing the following pertinent clause:

“[tjhat the Respondent herein shall pay as and for child support for his minor children, namely: Larry A. Shows (11-30-62) and Robin Ann Shows (06-29-64) both above the age of majority and Brian Keith Shows (06-28-68) and Debra Lynn Shows (10-08-69), the sum of $750.00 per month ...” (emphasis added)

As explained in Freeman v. Freeman, 226 La. 410, 76 So.2d 414 (1954):

“The basic method of operation under the reciprocal acts [URESA] is quite simple. An obligee (person to whom duty of support is owed) petitions the designated court in her home community; that court ■verifies the petition, attaches its certificate, and transmits the case to a court in the responding state where the obligor (person owing support) is now present; the responding state court takes jurisdiction over the obligor, ascertains whether a duty of support is owed, and enters the necessary support order_the proceeding is civil in nature.”

The history of the URESA indicates that its primary purpose is to prevent an obligor from avoiding his parental duty of support simply by living in a different state from his children. However, where URESA is employed, the obligee must prove his case as in any other civil action. La.R.S. 13:1677; City and County of San Francisco v. Juergens, 425 So.2d 992 (La.App. 5th Cir.1983).

The task of the juvenile judge in eases of this nature is to determine what duties of support the obligor present in this state owes under, our laws. La.R.S. 13:1644, 1661.

Louisiana mandates that minor children are owed support by both parents. La.C.C. Arts. 227, 230. However, such awards are subject to a hearing on proof of the child’s needs and the ability of an obli-gor parent to pay. Ducote v. Ducote, 339 So.2d 835 (La.1976); Savoie v. Curtis, 354 So.2d 705 (La.App. 4th Cir.1978). Further, the obligations imposed on parents under Article 227 to support, maintain and educate their children terminate when the minor reaches the age of majority. Suire v. Miller, 363 So.2d 945 (La.App. 3rd Cir.1978).

The support provisions of the judgment in this case are obviously inconsistent — ordering payment of support for four minor children and then expressly describing two of them as being above the age of majority. If, as it appears, the monthly award of $750 was intended to include support for the two adult children, this is not a duty of support owed under our laws, as required by the URESA. In such ease, enforcement of an alimentary obligation owed by the parent to the child [La.C.C. Art. 229] would have to be initiated by the child directly against the parent.

Under the circumstances, the juvenile court erred as a matter of law in fixing the child support award of $750 per month. However, rather than remanding the case for another hearing, we have determined upon our review of the record, considering the needs of the two minor children and the ability of the defendant father to pay, that the child support award should be fixed at the sum of $350 per month.

For these reasons, the pertinent support provisions of the juvenile court are amended and recast to provide “that Larry Wayne Shows shall pay as and for child support for his minor children, Brian Keith Shows and Debra Lynn Shows, the sum of $350 per month” and, as amended and recast, the judgment is affirmed.


author: SEXTON, Judge.

text:
    Bernard R. HAMPTON, Plaintiff-Appellant, v. LINCOLN NATIONAL LIFE INSURANCE COMPANY, Defendant-Appellee.
    No. 15951-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Pringle & Herzog by R. Perry Pringle, Shreveport, for plaintiff-appellant.
    Wilkinson & Carmody by Arthur R. Car-mody, Jr., Shreveport, for defendant-appel-lee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued under a health and hospitalization insurance policy to collect the benefits allegedly due him for the travel expense incurred in being transported from one medical facility to another. The trial court denied plaintiffs claims. We reverse.

Original plaintiff in this cause was Bernard R. Hampton, of Bossier Parish, Louisiana. Mr. Hampton died during the pend-ency of these proceedings, and the claims of original petitioner are now urged by his wife and son, Faye Hampton and Larry Hampton. Defendant in this cause is Lincoln National Life Insurance Company (Lincoln Life).

The facts of this cause were established by stipulation prior to trial. Bernard Hampton was a 57 year old white male, who was in good health until the sudden onset of a headache and a subsequent bout of disequilibrium on April 19, 1981. When Mr. Hampton’s condition did not improve for several hours, he was admitted into the emergency room of the Bossier Medical Center. Tests conducted the following day revealed that plaintiff had suffered a large right cerebellar arteriovenous malformation with subarachnoid hemorraging — a stroke.

The results of these tests of Mr. Hampton were reviewed by Dr. Warren Long of the Bossier Medical Center. Dr. Long recommended that these test results be sent to brain surgery specialist Dr. Charles Drake of London, Ontario, Canada, for his evaluation. After review of the data sent him, Dr. Drake recommended that Mr. Hampton undergo surgery. Pursuant to this recommendation, Mr. Hampton was flown to London, Ontario, Canada and hospitalized in the University Hospital in London, Ontario for the purpose of receiving surgical treatment from Dr. Drake. Dr. Drake performed a posterior craniotomy operation on Mr. Hampton, excising Mr. Hampton’s arteriovenous malformation. Immediately after Mr. Hampton’s return to his recovery room, it became necessary to repeat the operation. Mr. Hampton subsequently became unable to breath, and underwent a tracheotomy on June 11, 1981.

After Mr. Hampton’s condition stabilized, he was flown back to Bossier Medical Center, with his tracheotomy still in place. Mr. Hampton was flown from Ontario to Bossier City by air ambulance, because of Dr. Drake’s insistence that Mr. Hampton was not capable of making a commercial flight. Mr. Hampton was readmitted to the Bossier Medical Center upon his return to Louisiana, and remained at the Bossier Medical Center from June 21,1981 through September 28, 1981. After over three months of hospitalization at Bossier Medical Center, Mr. Hampton was transferred to P & S Rehabilitation Center in Shreveport. Mr. Hampton thereafter lapsed into a coma and subsequently died on August 17, 1982.

At the time of his stroke on- April 19, 1981, Mr. Hampton was covered by a group health and accident insurance policy which covered his employer, Liberia Manufacturing Company, and Mr. Hampton as an employee of Liberia. Defendant Lincoln Life has paid over $150,000 in medical expenses pursuant to this insurance coverage, including the cost of transporting Mr. Hampton from Bossier Medical Center to Ontario, Canada to undergo the surgical procedures performed by Dr. Drake.

However, Lincoln Life has refused to pay the $7,234.21 cost incurred in Mr. Hampton’s return to Bossier Medical Center from London, Ontario by air ambulance.

Suit was filed on May 5, 1982, seeking thé cost of the ambulatory air evacuation of Mr. Hampton from London, Ontario to Bossier Medical Center; plaintiffs further sought statutory penalties and attorney’s fees for Lincoln Life’s failure to reimburse petitioners for the costs associated with this air transfer.

The trial court rejected plaintiff’s demands reasoning that, under the stipulated facts, the insurance policy did not provide coverage for the “return” of Mr. Hampton by air ambulance from Ontario to Louisiana. The primary issue to be resolved on this appeal is whether the insurance policy issued by Lincoln Life afforded coverage for the $7,234.21 expense incurred in transporting Mr. Hampton by air ambulance from Ontario to Louisiana. The ancillary issue to be addressed herein is whether Lincoln Life’s refusal to pay that amount was arbitrary and capricious and without just or reasonable grounds, so as to justify the invocation of statutory penalties and attorney’s fees under LSA-R.S. 22:657.

The applicable provisions of the insurance policy at issue provide as follows:

“R. MAJOR MEDICAL BENEFITS
If an insured individual incurs eligible charges ... major medical benefits are payable.
4. Eligible Charges are those incurred for one of the following:
j. transportation within the United States and Canada of the [insured employee] by professional ambulance service, railroad, or regularly scheduled airline to, but not returning from, a hospital or sanitarium.” (Emphasis added.)

Appellant and appellee have not directed our attention to any jurisprudence of this state which interprets the contractual phraseology in question, nor have we uncovered any. We are thus guided, in our analysis of this contractual language, by the codal rules mandating that judicial interpretations of contract endeaver to ascertain the “true intent of all the parties,” and that “the intent is to be determined by the words of the contract, when these are clear and explicit and lead to no absurd consequences.” LSA-C.C. 1945.

The policy language at issue, when reduced to its basic functional elements, dictates that the insured be reimbursed for medical transportation “to, but not returning from, a hospital or sanitarium.” Having considered this contractual language in an effort to comprehend its underlying intent as evinced by the terms employed, we conclude that this language engenders ambiguity.

In stating that the transportation expense incurred in returning from a hospital is not reimbursible, this policy provision might be reasonably construed to exclude an insured’s return from the hospital after his medical treatment has been completed. This provision could be reasonably construed to exclude an insured’s return from the hospital after his period of hospitalization has been terminated. This provision could be reasonably construed to exclude an insured’s return from the hospital to his own home. Conversely stated, it is not clear that this policy intended to exclude coverage for transportation expense where the patient/insured leaves a medical institution, but does not “return” home therefrom, and the patient/insured has completed neither his medical treatment nor his period of hospitalization. We think it reasonable to conclude that the instant group health and hospitalization policy intended to provide coverage for the duration of the patient/insured’s period of hospitalization; and to terminate coverage when hospitalization ceased. In common sense terms, the policy arguably envisioned that the patient would “get home on his own” after his institutionalized convalescence and medical treatment ended.

In the trip for which Lincoln Life has refused to pay, patient/insured Bernard Hampton was transported from the University Hospital in London, Ontario, Canada to the Bossier Medical Center in Bossier City, Louisiana. This trip thus transported plaintiff from one medical facility to another. After arriving at Bossier Medical Center, Mr. Hampton remained there for an extended period of institutionalized treatment and convalescence. At the time of Mr. Hampton’s air evacuation from London, Ontario, neither his supervised medical treatment nor his period of hospitalization were at an end, and Mr. Hampton did not return home.

We therefore conclude that the instant insurance policy was ambiguous as to whether coverage was afforded to cover medical transportation costs under the instant circumstances where — at the time of the trip at issue — the patient/insured had not completed his medical treatment or period of hospitalization, and was not being transported to his home but to another medical facility. We conclude, more especially, that the instant policy was ambiguous with respect to the question of whether it provided coverage for a medical trans port that was simultaneously made both to and from medical institutions.

We construe this contractual ambiguity against the policy drafter, Lincoln Life. LSA-C.C. Art. 1958; Albritton v. Fireman’s Fund Ins. Co., 224 La. 522, 70 So.2d 111 (1953); Primm v. State Farm Fire & Casualty Co., 426 So.2d 356 (La.App. 2d Cir.1983); Bowab v. St. Paul Fire and Marine Ins. Co., 152 So.2d 66 (La.App. 3d Cir.1963), writ den. 244 La. 664, 153 So.2d 881 (1963). Moreover, it is the duty of the insurer to clearly express liability exclusions and limitations, exclusionary clauses are strictly construed, and the insurer has the burden of proving the applicability of a coverage exclusion. Primm, supra; Little v. Kalo Laboratories, Inc., 406 So.2d 678 (La.App. 2d Cir.1981).

An ancillary issue raised in this appeal is whether defendant-appellee is liable for statutory penalties and attorney’s fees under LSA-R.S. 22:657 for its alleged refusal to reimburse the cost of transporting Bernard Hampton from Ontario to Louisiana without just and reasonable grounds. We conclude that plaintiff-appellants are not entitled to statutory penalties and attorney’s fees. We find that Lincoln Life’s refusal to reimburse this expense was not without just and reasonable grounds, since Lincoln’s interpretation of the policy language at issue was not entirely unreasonable and had not been construed by a court of this state. See Walker v. Western-Southern Life Ins. Co., 391 So.2d 925 (La. App.2d Cir.1980); Duncan v. J.C. Penney Life Ins. Co., 388 So.2d 470 (La.App.2d Cir.1980).

For the foregoing reasons, we reverse the trial court’s judgment, and render judgment in favor of plaintiff-appellants, for the cost of transporting Bernard Hampton from University Hospital in London, Ontario to Bossier Medical Center. It is therefore ordered, adjudged and decreed that there be judgment in favor of plaintiff and against defendants in the amount of $7,234.21 with legal interest thereon from judicial demand and for all costs of these proceedings.

REVERSED AND RENDERED.


author: MARVIN, Judge. SEXTON, Judge,

text:
    Marshall W. ANDERSON and Louise G. Anderson, Plaintiffs-Appellants, v. W.A. McCARTY, Defendant-Appellee.
    No. 15967-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Granted May 4, 1984.

      Culpepper, Teat & Caldwell by James D. Caldwell, Jonesboro, for plaintiffs-appellants.
    J.P. Mauffray, Jr., Jena, for defendant-appellee.
    Before MARVIN, FRED W. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

In this personal injury action, plaintiffs appeal a judgment which directed a verdict in favor of defendants. We affirm. CCP Art. 1810.

The basic facts are undisputed. In their family automobile, plaintiffs were traveling west on U.S. Highway 84 about 6:15 p.m. on November 15, 1981, when they saw several cows on the right of way near the highway. After plaintiffs traveled one mile further another cow ran into the path of their vehicle while it was going approximately 40 mph. Plaintiffs sued for damages.

Plaintiffs alleged that defendant was the owner of the cow and was negligent in allowing the cow to be at large on the highway in violation of LRS 3:2803. After the trial court heard plaintiffs’ evidence, the court found that the plaintiffs failed to prove that defendant owned the cow and granted the directed verdict. Plaintiffs’ motion for a new trial was later denied by the trial court. Plaintiffs contend they should have been entitled to a new trial.

The central issue is whether plaintiffs proved defendant’s ownership of the cow. Where a cow causes an injury in a collision with an automobile courts will presume negligence of the owner of the livestock. This presumption must be rebutted by the owner in order to escape liability. Young v. Sentry Insurance Company, 315 So.2d 93 (La.App. 3d Cir.1975). Plaintiff, however, has the burden of proving defendant’s ownership of the livestock to invoke the presumption against him. Motors Insurance Corporation v. Melder, 336 So.2d 954 (La.App. 3d Cir.1976). Ownership of livestock may be proved by circumstantial evidence alone if such evidence excludes all other reasonable hypotheses with a fair amount of certainty. Melder, supra; Bunkie Funeral Home, Inc. v. McNutt, 414 So.2d 1263 (La.App. 3d Cir.1982).

On cross-examination defendant testified that he lives on the south edge of about 180 acres of land located about four miles north of Highway 84, which he had donated to his children when his wife died. He and his children owned about 60 head of cattle that were pastured near his home at the time of the accident.

The plaintiffs introduced certified copies of the stock marks and brands which had been recorded in the Winn Parish clerk’s office in defendant’s name. The first of these was recorded in 1940 and was can-celled in 1979. The second was recorded in 1979 and was cancelled in November 1981, and described the mark as a “crop off right ear, underslope in left ear.”

The state trooper who investigated the accident testified that when he arrived at the scene he found plaintiffs’ vehicle, which had sustained extensive damage, parked on the shoulder of the highway, and the cow about 75 or 80 feet away in the ditch. The plaintiffs did not complain of injury to the trooper and had no visible injuries. The trooper, when testifying, was allowed to refer to a copy of the accident report which he had prepared on the night of the accident. He said that he examined the cow but that he did not get “right up to her and check her, No sir.” He said that the cow had no brands but had “what they call a crop on the right ear with a underslope on the bottom portion ... on that same ear.” Photographs of the cow with a closeup of the ears which were taken and the ears, which had been severed from the cow, were filed with the troop headquarters, but neither the photos nor the ears were introduced at the trial. Plaintiffs had subpoenaed these items from the State Police but that agency apparently did not comply with the subpoena.

On direct examination, the plaintiffs’ counsel attempted to point up a discrepancy between the trooper’s testimony regarding the markings on the cow’s ears and the description of the ears contained in • the trooper’s accident report. The trial judge sustained an objection to the line of questioning as being repetitive and noted that “he was looking at the report when he answered it.” On cross-examination the trooper testified that he could not remember what color the cow was and did not get close enough to determine the sex of the animal. When asked if he knew what a split in an ear looks like, he answered “No, sir. In fact, let me back up on these markings which I described in this report. They were written on there as identified by a member of our Stock Patrol which was also there that night ... I wouldn’t know a crop from an upperslope or anything else ... that particular explanation is as told to me by the stock patrolman there that night.”

On redirect the trooper testified that “I observed the cow and I observed the markings, but as far as how to explain them and what the terms were as far as livestock goes, that was told to me by the livestock officer ... his terms and what I saw appeared to be the same.” Plaintiff’s attorney then sought to introduce the accident report into evidence which was objected to by the defendant as containing hearsay. The court sustained the objection to . the admissibility of the report, stating that “the witness testified,” but allowed the report in the record as a proffer by plaintiffs.

Plaintiffs contend that the accident report should be admissible as past recollection recorded. There are four elements to be considered in determining the admissibility of a past recollection recorded. They are that (1) the witness must have had firsthand knowledge of the event, (2) the recordation must have been made at or near the time of the event while the witness had a clear and accurate memory of it, (3) the witness must lack a present recollection of the event, and (4), the witness must vouch for the accuracy of the report. McCormick, Evidence, 2d Edition, p. 712. Although the trooper testified that he had observed the cow and that the description told to him by. the stock patrolman appeared to be the same as what he observed, he clearly explained that he could not vouch for the accuracy of the descriptions contained in his report because he was not conversant with the terms of livestock marking, either at the time of the accident or at the time of the trial. The trial court correctly excluded the accident report from the evidence.

Even should we find that the accident report was admissible, the report itself does not prove defendant’s ownership of the cow. Defendant’s recorded stock mark was an “under slope in the left ear” and the trooper’s report described the mark as “upper slope on lower portion of left ear.” These are not identical descriptions.

Under these circumstances we find that the trial court correctly found that plaintiffs failed to establish defendant’s ownership of the cow involved in the collision and correctly sustained the motion for directed verdict.

The motion for new trial was made on the grounds that it would serve the ends of justice as allowed by CCP Art. 1973. This article allows the trial judge to grant a new trial at his discretion if he finds good ground therefor. At the hearing on the new trial motion, the trooper was called in order to allow him to “correct” his testimony concerning the ear marks. The trial court sustained defendant’s objection to the plaintiffs impeaching their own witness and denied the motion for a new trial. Plaintiffs also sought to introduce photographs of the ears of the cow at the hearing on the motion. The trial judge is afforded much discretion in granting or denying a motion for a new trial under CCP Art. 1973. Plaintiffs’ failure to insist on compliance with their subpoena for the state police photographs would defeat a motion for a new trial filed under the mandatory grounds of CCP Art. 1972. Compare and see Skipworth v. McElroy Metal Mill, Inc., 353 So.2d 1069 (La.App. 2d Cir.1977). We find no abuse of discretion afforded the trial court under CCP Art. 1973. Shows v. Williamson, 256 So.2d 688 (La.App. 2d Cir.1972).

At appellant’s cost the judgment appealed is

AFFIRMED.

SEXTON, J., dissents and assigns written reasons.

SEXTON, Judge,

dissenting.

I respectfully dissent. This controversy arose in the trial court because the trooper initially testified that the crop and the slope were on the same ear, while his report recorded that the crop was on the right ear and the slope was on the left ear. Thus, the information contained in the accident report essentially matched the registered brand of the defendant. (I see little if any difference between the registered brand as an “under slope in the left ear” and the brand as reported in the accident report as a “slope on lower portion of left ear.”) The trooper was not vague about the matter, in my view, but he had absolutely no recollection of his investigation of this incident. He testified specifically that he and the stockman saw the same thing but that he did not know how to record it in “stock language.”

Therefore, I believe the report satisfies all the requirements of past recollection recorded and should have been received as such, and since it does furnish evidence that the defendant owned the cow that was struck, the matter should be remanded for a new trial and consideration of this evidence.


author: PRICE, Judge.

text:
    Thomas I. HOLLANGER, Jr., and Janet Bracewell Hollanger, Plaintiffs-Appellants, v. HOLLANGER RICE FARMS, INC., and Tallulah Production Credit Association, Defendant-Appellee Intervenor-Appellee.
    No. 15982-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Rehearing Denied Feb. 23, 1984.
    Writ Denied April 13, 1984.
    Boles & Mounger by Harvey Perry, Monroe, for plaintiffs-appellants.
    Voelker, Ragland, Brackin & Crigler by William B. Ragland, Jr., Lake Providence, for intervenor-appellee Tallulah Production Credit Ass’n.

      Before PRICE, JASPER E. JONES and NORRIS, JJ.
   PRICE, Judge.

Plaintiffs, Thomas I. Hollanger, Jr., and Janet Bracewell Hollanger, appeal the granting of a summary judgment in favor of defendant, Tallulah Production Credit Association, which dismissed plaintiffs’ action to rescind the sale of immovable property to defendant, Hollanger Rice Farms, Inc., for non-payment of the purchase price.

The record establishes that on April 20, 1978, plaintiffs, Thomas I. Hollanger, Jr., and Janet Bracewell Hollanger, transferred immovable property located in Morehouse Parish, Louisiana, to defendant Hollanger and Bracewell Rice Farms, Inc., now known as Hollanger Rice Farms, Inc., a Louisiana corporation domiciled in More-house Parish, Louisiana. The sale was executed by act of “Cash Sale with the Assumption of Mortgage” which was duly recorded in the records of Morehouse Parish, Louisiana on April 24, 1978.

The act of sale recites that the price of the immovable property was one million four hundred thousand, two hundred and thirty-eight dollars and no/100 ($1,400,-238.00). Of this price, the amount of fifty-five thousand two hundred and thirty dollars and no/100 ($55,230.00) was paid in cash. The balance of the purchase price was represented by the assumption of the following indebtedness by the defendant-vendee:

(a) $598,078.00, represented by promissory note executed by Thomas I. Hol-langer, Jr. and Janet Bracewell Hollan-ger to R.B. Mardis and Stella Mardis, nee Winn, which promissory note is secured by a Vendor’s Lien and Mortgage dated the _ day of February, 1978 and recorded in Mortgage Book _ page _ of the records of Morehouse Parish, Louisiana.
(b) $610,000.00, represented by a promissory note dated March 10, 1978, which note is secured by a Mortgage by Thomas I. Hollanger, Jr. and Janet Bracewell Hollanger to Federal Land Bank of New Orleans, of even date and in a like amount which mortgage was recorded March 14, 1978 in Mortgage Book 276, Page 227 of the records of Morehouse, Louisiana.
(c) $25,000.00, represented by a promissory note executed by Thomas I. Hol-langer, Jr. and Janet Bracewell Hollan-ger, payable to the order of John Alvin DeBlieux dated March 10, 1978 which Promissory note is secured by a mortgage from Thomas I. Hollanger, Jr. and Janet Bracewell Hollanger to John Alvin DeBlieux of an even date and a like amount, and which said mortgage was recorded March 14, 1978 in Mortgage 276 page 237 of the records of Morehouse Parish, Louisiana.
(d) $112,000.00, represented by promissory note executed by Thomas I. Hollan-ger and Janet Bracewell Hollanger, payable to the order of Cord Enterprises, Inc., which promissory note is secured by a mortgage of an even date (March 10, 1978) and in a like amount and which Mortgage was filed for record, March 14, 1978 in Mortgage Book 276 Page 233 of the records of Morehouse Parish, Louisiana.
(e) The assumption of and agreement to reimburse Thomas Hollanger and Janet Bracewell Hollanger for any and all additional sums expended by them or for which they are presently obligated to pay in connection with their acquisition of this property including but not limited to Attorney’s fees, filing costs, amount expended for Federal Land Bank Stock and any and all other costs in connection with the acquisition of said property.

The sale contract states that “(t)he parties to this contract acknowledge that Thomas I. Hollanger, Jr. and Janet Brace-well Hollanger acquired this property for and on behalf of the Vendees herein in order to arrange financing and the purpose of this act of sale is to transfer the property to the Vendees at all of the actual cost involved in the acquisition of the property.”

At the time the property was acquired, plaintiffs owned at least one half of the stock in the defendant-corporation. The remaining half of the stock was owned by Noel and Loraine Braeewell. However, it appears from the record that at the time of this action, plaintiffs are the sole owners of the defendant-corporation.

After the sale of property, the defendant-corporation executed a collateral mortgage in favor of defendant, Tallulah Production Credit Association, in the amount of one million five hundred thousand dollars and no/100 ($1,500,000.00) which was duly recorded in the records of Morehouse Parish, Louisiana on April 17, 1979.

The record reveals that the defendant-corporation paid a few installments due on the assumed mortgages but essentially has made no payments since 1979.

The plaintiffs later filed bankruptcy proceedings and the Second Amended Plan of Reorganization was confirmed by the United States Bankruptcy Court, Western District of Louisiana on June 2, 1981. In the plan, all claims and causes of action in favor of the plaintiff-debtors before the bankruptcy proceedings were reserved. The plan further provided that the plaintiff-debtors would be relieved of personal liability on the notes identified with the mortgages assumed by the defendant-corporation.

Plaintiffs then instituted this action to rescind the sale of the property to the defendant-corporation and to have the collateral mortgage executed in favor of defendant, Tallulah Production Credit Association, to be declared null and void.

Plaintiffs and defendant, Tallulah Production Credit Association filed opposing motions for summary judgment. The trial court granted defendant’s motion for summary judgment which dismissed plaintiffs’ action to rescind the sale for non-payment of the purchase price and to cancel the mortgage. The trial court held that as the plaintiffs were no longer personally liable on the mortgages assumed by the defendant-corporation by virtue of the bankruptcy order, then they were owed nothing and therefore had lost their right to rescind the sale.

On appeal, plaintiffs assert the following assignments of error:

(1) The trial court erred in finding that the plaintiffs’-vendors’ discharge in bankruptcy of debts assumed by the defendant-vendee constituted payment of the debt by the vendee to the plaintiffs.
(2) The trial court failed to order the sale from plaintiffs to the defendant-vendee rescinded for non-payment of the purchase price.
(3) The trial court failed to order the mortgage to defendant, Tallulah Production Credit Association, erased from the public records of Morehouse Parish, Louisiana.

The issue before this court is whether the trial court was correct in finding that the discharge in bankruptcy, whereby plaintiffs were relieved of personal liability on the indebtedness assumed by the defendant-corporation, effectively terminated plaintiffs’ right to rescind the sale. We conclude the trial court was correct and affirm the judgment for the following reasons.

La.C.C. Art. 2561 provides that “(i)f the buyer does not pay the price the seller may sue for the dissolution of the sale.”

The right of the seller to sue for the dissolution of the sale and the return of the property is not dependent upon the existence of a security device such as a mortgage or privilege. The effect of the dissolution is to place all of the parties in the same position they occupied prior to the sale. See Sliman v. McBee, 311 So.2d 248 (La.1975).

Plaintiffs argue that they reserved all causes of action in the bankruptcy order and that their discharge from personal liability did not terminate their right to rescind the sale under La.C.C. Art. 2561. Plaintiffs cite many cases in support of this argument, most important of which is Louis Werner Saw Mill Co. v. White, 205 La. 242, 17 So.2d 264 (1944). Defendant, Tallulah Production Credit Association, argues that plaintiffs lost their right to rescind the sale by their discharge in bankruptcy and relies on the recent case of Pearl Corp. v. Knesel, 416 So.2d 149 (La.App. 4th Cir.1982) writ denied 420 So.2d 985 (La.1982).

In the Pearl Corp. v. Knesel case, supra, the buyer of the property assumed the seller’s obligations on two existing mortgages. The buyer paid one of the obligations so assumed but not the other and the note secured by the unpaid mortgage prescribed. The seller later sued to rescind the sale for non-payment of the purchase price. The court found that the agreed upon price in this sale was the assumption by the purchaser of the seller’s liability on a note held by a third party. The court found that “(o)nce the note prescribed the seller no longer had any liability on the note and the price was paid. This was as certain once the note prescribed as it would have been had the purchaser paid the balance due the third party. Consequently, the seller no longer had any right to bring an action to dissolve the sale for non-payment of the price” (at page 150).

In Louis Werner Saw Mill Co. v. White, supra, the property was sold to the buyer for $800.00 of which $400.00 was paid in cash and the buyer gave a note representing the unpaid balance which was due one year after the date of the sale. The note was not paid and the seller later brought suit to rescind the sale of the property. The court held that although the note itself had prescribed by the five year prescriptive period, the right to rescind was an independent personal right which was subject only to a ten year prescriptive period and thus the right to rescind the sale was still enforceable. Basically, the court found that the right to rescind is independent of the debt itself and survives the prescription of the note evidencing the obligation to pay the purchase price.

Although it appears at first glance that the decision in the Pearl Corp. case, supra, is inconsistent with the ruling enunciated by the Supreme Court in Louis Werner Sawmill Co., supra, the court in Pearl Corp., supra, made a valid distinction between the facts of the two cases which supported the application of a different rule of law.

In Louis Werner Sawmill Co., supra, the unpaid obligation which had prescribed was owed by the buyer to the seller. Therefore, a portion of the purchase price remained unpaid to the seller which gave rise to the seller’s cause of action under La.C.C. Art. 2561. On the other hand, in Pearl Corp., supra, the unpaid obligation was not owed by the buyer directly to the seller but was in fact owed to a third party. Therefore, when the note owed to the third party prescribed, the seller received what he contracted for in the act of sale, that is discharge from personal liability on the obligation which was assumed by the buyer as part of the purchase price.

This court finds that the facts of the Pearl Corp. case, supra, are similar to the instant case and the holding of the Fourth Circuit Court to be persuasive.

In the instant case, as in the Pearl Corp. case, supra, the buyer assumed obligations owed to third parties rather than to the seller. The bankruptcy order relieved plaintiffs of all personal liability on the obligations assumed by the defendant-corporation. Once the plaintiffs were relieved of any liability on these debts, they received all that they contracted for in the act of sale, that is, no further personal liability. Therefore, as to them, the purchase price had been paid and plaintiffs no longer had a cause of action to rescind the sale.

Plaintiffs correctly argue that a discharge in bankruptcy does not constitute payment or extinguishment of obligations which are discharged but merely serves to bar their enforcement by legal proceedings. See Earl v. Liberty Loan Corp. of West Monroe, Inc., 193 So.2d 280 (La.App.2d Cir. 1966), and Gumina v. Dupas, 178 So.2d 291 (La.App. 4th Cir.1965). However, the practical result of plaintiffs’ discharge in bankruptcy is the same as it would be had the obligations been paid or otherwise extinguished, namely that the plaintiffs can no longer be judicially compelled to fulfill these obligations.

For these reasons, the judgment of the trial court in favor of defendant, Tallulah Production Credit Association, is affirmed at plaintiffs’, Thomas I. Hollanger and Janet Bracewell Hollanger, costs.


author: MARVIN, Judge.

text:
    Ruth Virginia Saylors DAVIS, Plaintiff-Appellee, v. Claude Joseph DAVIS, Defendant-Appellant.
    No. 15984-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied April 2, 1984.
    James L. Fortson, Jr., Shreveport, for defendant-appellant.
    Sockrider & Bolin by H.F. Sockrider, Jr., Shreveport, for plaintiff-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

The divorced husband appeals a judgment rejecting his demands to reduce permanent alimony because the wife sold the former family home after the divorce and invested the proceeds in an interest bearing account which increased her income approximately $4,800 per year. Appellant contends that the trial judge erred in finding this was not a sufficient change in circumstances which would warrant reducing permanent alimony. CC Art. 160. We find no error and affirm.

The litigants were divorced June 10, 1981, after 37 years of marriage. Appellant was found at fault and he consented to pay permanent alimony of $1,150 per month to the wife. In a community property settlement on November 19, 1980, the appellee received the family home, the furniture and fixtures, and a 1978 Cadillac. Appellant received the stock in his business corporation, life insurance policies, cemetery plots, and a motorcycle. The husband’s annual net earnings at the time of divorce were approximately $30,000. We note there is no evidence in the record of this appeal to show a change in the appellant’s earnings.

Appellee is 57 years old and is unemployed because she is in ill health. On April 1, 1982, she sold the former family home in Shreveport and moved to Tyler, Texas. She received $83,500 cash and the ■buyers assumed the outstanding mortgage indebtedness. After paying brokerage fees and other debts, she invested the remaining $60,000 in a certificate of deposit at approximately eight percent interest. This interest provides additional income to her of about $400 per month. Her current monthly, living expenses are about $1,800, which includes apartment rent of $405. The notes on the home she sold were about $350 per month.

Appellant sought the reduction on March 28, 1983, relying upon CC Art. 160. This article directs the court to consider the several listed factors and any other relevant factors in determining the entitlement and amount of alimony after divorce. One of these factors is the liquidity of the assets owned by the spouses.

Appellee relies on oases which indicate that conversion of real estate into cash does not justify modification of CC Art. 160 alimony. See O’Brien v. O’Brien, 308 So.2d 333 (La.App. 1st Cir.1975), writ ref.; Stolier v. Stolier, 357 So.2d 1334 (La.App. 4th Cir.1978), writ ref. These cases were decided before CC Art. 160 was amended in 1979 to include the liquidity and other factors. CC Art. 160 spoke only in general terms and did not list specific factors until the 1979 amendment.

While the statute directs that liquidity be considered by the court in determining whether a modification of alimony may be warranted, the court is not limited in considering and weighing all relevant factors and circumstances of the individual case. In some circumstances, liquidity alone may be controlling, while in others it may not.

This record reveals that the appellee borrowed about $7,800 from her father to meet her living and medical expenses when her only income was the $1,150 per month permanent alimony. She paid her debt to her father after she sold the Shreveport home. Her current monthly expenses of about $1,400, excluding $405 apartment rent, are not seriously disputed, although she was cross-examined on some items. Appellee also revealed and corroborated her intent to purchase a smaller home in Texas with some or all of the $60,000 she has on deposit. The trial court considered these factors, along with liquidity, and concluded that appellee’s permanent alimony needs were more than the $1,150 which she was receiving in monthly permanent alimony. This conclusion is not clearly wrong and is supported by the record.

We cannot say that the trial court abused its discretion in denying appellant’s demands and, at appellant’s cost, we affirm the judgment.


author: HALL, Judge.

text:
    Kenneth Francisco GRAVES, Jr., Plaintiff-Appellee, v. RED RIVER VALLEY BANK, Defendant-Appellant.
    No. 15987-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Writ Denied March 9, 1984.

      C. William Gerhardt & Associates by C. William Gerhardt, Shreveport, for defendant-appellant.
    Robert W. Raley, Bossier City, for plaintiff-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

The plaintiff sued the defendant bank for allowing his ex-wife to withdraw $5,900 from a joint passbook savings account established by the couple without requiring presentation of the passbook as authorization for the withdrawal as required by bank rules and regulations. The trial court found the bank liable to the plaintiff for the unauthorized disbursement and the defendant bank appealed. We affirm.

The following matters were stipulated at trial. The plaintiff and his ex-wife opened the joint passbook savings account on March 1, 1979. A passbook, filed into evidence, was issued. A signature card, filed into evidence, was signed authorizing either party to withdraw funds from the account. On March 19, 1982, Marsha Graves, plaintiff’s ex-wife, withdrew $5,900 from the passbook account. At the time of this withdrawal, Marsha Graves did not present the passbook or have the passbook in her possession. The bank does not contend that she had plaintiff’s permission to make the withdrawal. It was further stipulated that, if the disbursement in question was improper, the plaintiff should recover the entire $5,900.

The account was styled “Kenneth or Marsha Graves.” The signature card authorized the bank to recognize either signature in payment of funds from the account. The card also provides that it is mutually agreed and understood that the account is opened subject to the bank’s rules and regulations governing savings accounts, and receipt of a copy thereof was acknowledged.

The savings account passbook issued to the Graveses contains printed “Rules and Regulations”, including the following:

“5. Depositors can withdraw money personally and by written order when their signature is on file at the Bank, but in all cases the Pass Book must accompany such order, so that proper entry can be made when money is withdrawn.”

The passbook also contains the following printed declarations, prominently displayed:

“No payments can be made or money withdrawn without presentation of this book.”
“BOOK MUST ALWAYS BE PRESENTED WHEN YOU DEPOSIT OR WITHDRAW MONEY”

The issue presented is whether the bank is liable to one joint depositor for amounts withdrawn by the other joint depositor without presentation of the passbook as required by the rules and regulations of the bank.

The plaintiff argues that the rules and regulations of the bank are part of the contract between the bank and its depositors, and payment by the bank to one of the joint depositors without presentation of the passbook in violation and breach of its contract renders it liable to the other joint depositor for the amount wrongfully disbursed.

The defendant bank argues that the purpose of the rule requiring presentation of the passbook is to prevent payment to one who is not a depositor and may be waived by the bank. The defendant further argues that the bank is relieved of liability to a depositor for payment to a co-depositor under the express provisions of LSA-R.S. 6:32 A.

The precise issue is one of first impression in Louisiana, although it has been presented on a number of occasions in other jurisdictions, with varying results. The excellent briefs submitted by counsel for both parties review the cases from other states. The plaintiff cites and relies on Badders v. Peoples Trust Company, 236 Ind. 357, 140 N.E.2d 235, 62 A.L.R.2d 1103 (Ind.1957); Haseman v. Union Bank of Mena, 262 Ark. 803, 562 S.W.2d 45 (1978); Keokuk Savings Bank & Trust Company v. Desvaux, 259 Iowa 387, 143 N.W.2d 296 (1966); La Valley v. Pere Marquette Employes’ Credit Union, 342 Mich. 639, 70 N.W.2d 798 (1955); Davis v. Chittenden County Trust Co., 115 Vt. 349, 61 A.2d 553 (1948); Stillings v. Citizens Bank of Ava, 637 S.W.2d 401 (Mo.App.1982); Miranda v. Fidelity National Bank of South Miami, 334 So.2d 74 (Fla.App. 3rd Dist.1976); Mercantile Savings Bank v. Appler, 151 Md. 571, 135 A. 373 (Md.App.1926). The defendant cites and relies on Gray v. Landmark Union Trust Bank of St. Petersburg, 364 So.2d 1256 (Fla.App. 2d Dist. 1978); Coristo v. Twin City Bank, 257 Ark. 554, 520 S.W.2d 218 (1975), rehearing denied 522 S.W.2d 417; Forbes v. First Camden Nat. Bank & Trust Co., 25 N.J. Super. 17, 95 A.2d 416 (1953); Brooks v. Erie County Sav. Bank, 169 App.Div. 73, 154 N.Y.S. 692 (1915), affirmed without opinion 224 N.Y. 639, 121 N.E. 857.

In well-considered and expressed written reasons for judgment, the trial court adopted the rationale of the Badders case as the better rule of law, holding that the bank rule requiring presentation of the passbook amounted to a contract between the bank and the depositors which could not be waived by the bank and only one of the joint depositors, that the statute does not prevent the bank and its depositors from contracting to enlarge the bank’s liability beyond the provisions of the statute, and that the payment in violation of the contract rendered the bank liable for the amount disbursed. We agree.

The Badders decision is accurately summarized in an annotation, “Liability of bank to joint depositor of savings account for amounts withdrawn by other joint depositor without presentation of passbook”, 62 A.L.R.2d 1109, as follows:

“A savings bank was held liable in Badders v. Peoples Trust Co. (1957) 236 Ind 357, 140 NE2d 235, 62 ALR2d 1103, to a joint depositor having possession of the passbook for a savings account the entire amount of which was paid out to the other joint depositor without presentation of the bankbook, where it was stated within the book that the book was required to be presented when money was deposited or withdrawn, and that the account was subject to the rules and regulations of the bank, one of which was that a savings account was not subject to check and that the passbook must be presented when withdrawals were made, even though a statute provided that a bank is discharged by payment to either one of two persons having an account payable to either, or payable to either or the survivor. Stating that it was the unquestionable general rule that the rules printed in the passbook of a banking institution presented to a depositor opening an account with the bank constitute a contract between the bank and the depositor, the court took the position that the above statutes did not prevent the bank from enlarging its liability by contract if it saw fit to do so. The court also rejected a contention that the contractual provision in question was not binding upon the bank and the joint depositor to whom it paid out the funds on the ground that these two parties had waived the passbook requirement, stating that waiver had been defined as the voluntary and intentional relinquishment of a known right, and that to countenance a waiver by the bank and one joint depositor, to the financial profit and advantage of the waiving joint depositor, but to the detriment of the uninformed joint depositor, would put a high premium on fraud and invite the violation of contract for personal gain.” Id. at 1110.

The Gray case relied on by the defendant is a per curiam decision of the Florida intermediate appellate court. That court chose not to follow Badders, holding that a passbook presentation clause is for the purpose of preventing payment to one who is not a depositor and may be waived by the bank. It was held that such a clause is not meant to protect a depositor against withdrawals by a co-depositor. To hold otherwise, the court stated, would place a heavy burden on a bank to mediate between co-depositors, and this is one of the burdens which the legislature sought to remove by enacting the statute relieving the bank of liability. The Florida statute was substantially the same as LSA-R.S. 6:32 A.

The Badders rationale is more persuasive. The rule requiring presentation of the passbook is a contract between the bank and both depositors, and a waiver of the contractual requirement would require the concurrence of all parties to the contract. It cannot be waived by the bank and only one of the co-depositors.

It is not necessary or appropriate to search for hidden or unexpressed purposes underlying the contractual rule requiring presentation of the passbook. The requirement is clear and express, and is stated prominently in three places in the passbook. Each party is bound by the contract and, in turn, is entitled to rely on the express contractual provisions.

The parties seem to agree that, absent the contractual requirement, where an account is in the names of multiple depositors, LSA-R.S. 6:32 A. protects the bank from liability to one joint depositor for payment made to another joint depositor. The statute does not, however, insulate a bank from liability to a joint depositor for payment made to another joint depositor contrary to and in breach of its express contract with the joint depositors.

Beals v. City National Bank, 329 So.2d 828 (La.App. 1st Cir.1976), writ refused, 332 So.2d 863 (La.1976), cited by defendant, lends no support to defendant’s position. The holding of that case is that under LSA — R.S. 6:66 and 6:32 A. a bank may make payment of funds in a joint savings account to a deceased depositor’s legal heirs recognized as such by a judgment of possession without liability to a surviving depositor. The case did not involve presentation of a passbook pursuant to a contractual rule of the bank requiring presentation in order to make a withdrawal.

Pursuant to the stipulation of the parties that if the disbursement is found to be improper the plaintiff is entitled to recover the full amount of the disbursement, the judgment of the trial court in favor of plaintiff for that amount is correct, and is affirmed at defendant-appellant’s costs.

Affirmed.

      . LSA-R.S. 6:32 A.:
      "A. When a deposit is made in any bank, savings bank or trust company under the names of two or more persons, payable to any one of such depositors, this deposit or any part of it, or any interest or divided on it may be paid to any one of such depositors, whether the other depositor or depositors be living or not, and the receipt or acquittance of the person paid is a full release and discharge of the bank, savings bank or trust company as to any heir, legatee, creditor or other person having rights or claims to funds of such deceased depositor for any payment made; .... ”


text:
    STATE of Louisiana In the Interest of Redell REDD.
    No. 16055-KAJ.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 16, 1984.
    Raymond L. Cannon, Tallulah, for appellant.
    George F. Fox, Jr., Asst. Dist. Atty., Lake Providence, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

Redell Redd, a 14 year old juvenile, was adjudicated a delinquent by virtue of a finding that he committed armed robbery. As a consequence, the youngster was committed to the Louisiana Department of Corrections for a period of,time not to exceed his 21st birthday — which he will attain before completing the alternative sentence of 99 years.

Appealing the judgment of disposition [C.J.P. Art. 97], the juvenile's only assignment of error is that his delinquency adjudication was based upon insufficient evidence. Finding to the contrary, we affirm.

Factual Context

At about 10:30 o’clock on the night of June 30, 1983, Mr. and Mrs. Garrett Walker closed their Lake Providence store and were preparing to enter their automobile parked outside the building when they were attacked and robbed of money and other valuables by two young males. The city police were immediately notified of the incident and came to the store. Based upon information furnished by Mrs. Walker, officers proceeded to arrest the juvenile, Redell Redd, and his adult brother, Jesse Redd. The latter was charged with armed robbery and a petition was filed against the juvenile, alleging that he should be adjudged a delinquent because of his involvement in the same crime.

At the adjudicatory hearing, held on August 12, 1982, Walker [who was assaulted first] testified that he did not see who hit him. However, Mrs. Walker stated that, upon preparing to enter the family vehicle, she looked up and observed Jesse Redd advancing toward her with an iron pipe in his hand. Mrs. Walker was struck across the hands with the pipe as she attempted to ward off the impending blow. Thereupon, the assailant grabbed her pocketbook [containing some $1,000] and fled. Mrs. Walker further asserted that she observed Re-dell Redd [whom she had known all of his life] running down the road with her husband’s money sack.

Both Walkers testified that one Adams, a man who lived with the Redd brothers’ mother, was in their store attempting to use the telephone just before closing time.

It was further established that outside lights affixed to the Walker store building illumined the area where the robbery occurred.

Sixteen year old Alvin Thompson testified he knew the Redd brothers and that just before the robbery he saw Jesse Redd standing beside the Walker store with an iron pipe in his hand. Thompson then walked to his dwelling [located across the street from the store] and sat on top of his back porch to cool off. Prom that vantage point, he assertedly witnessed the robbery, observing the following: Jesse Redd strike Walker with an iron pipe; Redell Redd grab Walker’s money sack and run; Jesse Redd hit Mrs. Walker with the pipe, snatch her purse and flee.

Officer Hall of the city police stated that when he apprehended Redell Redd, the juvenile was wet from the waist down. It had been revealed that the two who robbed the Walkers probably fled across a ditch which had water in it.

Defense evidence consisted primarily of the testimony of the juvenile’s mother that she, Adams and Redell had been fishing on the afternoon of June 30,1983; returned to Lake Providence at approximately 8:30 o’clock that evening; let Redell off at a convenience store; Redell met them at the home of his grandmother some 20 minutes later; the two then went with Adams to the Redd residence where officers were waiting to arrest the juvenile. She explained that Redell got his pants wet by wading in the water where they were fishing.

Applicable Law

Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, when armed with a dangerous weapon. La.R.S. 14:64.

All persons concerned in the commission of a crime ... whether they directly commit the act constituting the offense ... are principals. La.R.S. 14:24.

In juvenile delinquency proceedings the State must prove beyond a reasonable doubt that the juvenile committed the delinquent act which is the basis of the adjudication. C.J.P. Art. 73.

Not only does the Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) standard of review apply to juvenile delinquency adjudicatory hearings, but our state constitution mandates that we determine, after reviewing the record evidence, whether the juvenile court was clearly wrong in its fact-findings. Art. 5, Sec. 10(B); State in Interest of Giangrosso, 395 So.2d 709 (La.1981); State in the Interest of Cason, 438 So.2d 1130 (La.App.2d Cir.1983); State in the Interest of Thomas, 395 So.2d 912 (La.App.2d Cir.1981).

Adverting to the evidence presented in this case, one of the victims and an alleged eyewitness to the armed robbery positively identified the juvenile as a principal. Only the youngster’s mother’s testimony purported to establish an alibi for him. However, there are significant inconsistencies in that testimony. For example, Mrs. Redd never mentioned that her “old man” [Adams] was in the Walker store just prior to its closing. Interestingly enough, Adams was not called as an alibi witness for the juvenile nor was any explanation offered for this failure. Also, Mrs. Redd testified that the juvenile was arrested when they returned home at about 9:30 o’clock P.M. This was contradicted by police records which indicated the robbery occurred about one hour later.

The juvenile court, acting within the ambit of its authority to assess witness credibility, apparently discounted the testimony of the juvenile’s mother and accepted the statements of those who identified the juvenile as a participant in the armed robbery. We cannot say that this finding of fact was manifestly erroneous.

We have also determined, based upon our consideration of the record and viewing the evidence in the light most favorable to the State, that a rational trier of fact could have concluded the State proved every essential element of the crime of armed robbery beyond a reasonable doubt.

Decree

For these reasons, the judgment of disposition in this juvenile delinquency case is affirmed.


author: FORET, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Thurmon Brent THETFORD, Defendant-Appellant.
    No. CR83-856.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 17, 1984.
    David L. Wallace, Evans, Bradley, Wallace & O’Neal, DeRidder, for defendant-appellant.
    W.C. Pegues, III, Dist. Atty., DeRidder, for plaintiff-appellee.
    Before GUIDRY, FORET and YELVER-TON, JJ.
   FORET, Judge.

MOTION TO REMAND

On May 18, 1983, the defendant, Thur-mon Brent Thetford, was convicted, by a six person jury, of two counts of simple burglary, a violation of LSA-R.S. 14:62, one count of theft of property having a value of $500.00 or more, a violation of LSA-R.S. 14:67, and one count of unauthorized use of a movable of $2,000.00 in value, a violation of LSA-R.S. 14:68. (Tr. p. 14). On July 1, 1983, the defendant was sentenced to serve nine (9) years on each count of simple burglary and nine (9) years on the one count of theft. He was sentenced to serve three (3) years on the count of unauthorized use of a movable. All sentences are to run concurrently.

The defendant has filed for an appeal of his conviction based on an allegation of insufficient evidence to sustain the verdict. Upon review of the trial record by defense counsel it becomes apparent that the transcript was incomplete. (Tr. pp. 210, 220). It is indicated by the court reporter, that a malfunction in the recordation equipment has caused certain testimony to be lost. The defendant has requested, by motion to remand, that this Court revest the trial court with jurisdiction on the matter, so that a new and completely recorded trial can be had.

Article 843 of the Louisiana Code of Criminal Procedure provides:

“In felony cases, and on motion of the court, the state, or the defendant in misdemeanor cases tried in a district, parish, or city court, the clerk of court stenographer shall record all of the proceedings, including the examination of prospective jurors, the testimony of witnesses, statements, rulings, orders, and charges by the court, and objections, questions, statements, and arguments of counsel.”

The official revision comments to the article indicate that the legislative intent was to effectuate the constitutional guarantee of an appeal in felony cases based upon a review of the full record in the proceedings. Article 1, § 19 of the Louisiana Constitution of 1974 provides:

“No person shall be subjected to imprisonment or forfeiture of rights or property without the right of judicial review based upon a complete record of all evidence upon which the judgment is based. This right may be intelligently waived. The cost of transcribing the record shall be paid as provided by law.”

Without a complete record from which a transcript for appeal may be prepared, a defendant’s right of appellate review is rendered meaningless. A slight inaccuracy in a record or an inconsequential omission from it which is immaterial to a proper determination of the appeal would not cause us to reverse defendant’s conviction. But where a defendant’s attorney is unable, through no fault of his own, to review a substantial portion of the trial record for errors so that he may properly perform his duty as appellate counsel, the interests of justice require that a defendant be afforded a new, fully-recorded trial. State v. Ford, 338 So.2d 107 (La.1976); State v. Jones, 351 So.2d 1194 (La.1977).

In this instance the omission consisted of defense counsel’s cross-examination of state’s witnesses, as well as the entire testimony of two defense witnesses. Defendant alleges these were primary alibi witnesses. It cannot be said that this is an “inconsequential omission”.

In light of the above, it would appear that the defendant’s motion is supported by constitutional, statutory and jurisprudential authority. The malfunction of the recording equipment has resulted in a substantial omission from the record, especially in light of the assignment of error lodged on appeal.

Accordingly, for the foregoing reasons defendant’s conviction and sentence are set aside and the case is remanded to the trial court for a new, fully recorded trial.

ORDER

After due consideration of the motion by relator, Thurmon Brent Thetford, and for the reasons of the Court attached hereto,

IT IS HEREBY ORDERED that the defendant’s sentence in the above captioned case be remanded to the Thirty-Sixth Judicial District Court for the proceeding ordered herein.


author: CUTRER, Judge.

text:
    Chris J. ROY, Plaintiff-Appellant, v. Guy E. HUMPHRIES, Jr., Defendant-Appellee.
    No. 83-340.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.
    Rehearing Denied Feb. 29, 1984.
    Writ Denied March 23, 1984.
    Chris J. Roy, Alexandria, and Kennedy & Yeager, Charles J. Yeager, Alexandria, for plaintiff.
    Humphries & Humphries, Guy E. Hum-phries, Jr., and G. Earl Humphries, III, Glynn W. Reynolds, Michael W. Shannon, Alexandria, for defendant-appellee.
    Before GUIDRY, CUTRER and STOKER, JJ.
   CUTRER, Judge.

This case involves a challenge by a city attorney to the authority of a “special counsel” employed by a city council.

Chris J. Roy, City Attorney of the City of Alexandria, sought a Writ of Quo Warran-to against Guy E. Humphries, Jr., wherein Mr. Humphries was directed to show the authority under which he was exercising the office of special counsel for the City of Alexandria in litigation brought by the City against the Mayor of Alexandria, John K. Snyder. The trial court found that Mr. Humphries sufficiently established the authority by which he held the position of special counsel for the Alexandria City Council and dismissed Mr. Roy’s petition. Mr. Roy appealed and we affirm.

FACTS

As a matter of background, we will relate the facts which underlie the litigation between the City Council and the Mayor which, in turn, is the basis of the instant case.

In the 1970’s, the price of natural gas, the basic feedstock of most municipal owned power plants, began a rapid rise. In the late 1970’s, nine municipalities in central and south central Louisiana formed the Louisiana Energy and Power Authority (LEPA) to seek ways to insure a constant “low cost” source of electrical power for themselves and the citizens of the member communities. The City of Alexandria, which owned a gas-fired municipal power plant, was a charter member of LEPA. In fact, the then mayor of Alexandria, Mr. Carroll Lanier, was a prime mover in the creation of LEPA and served as the chairman of the LEPA Board of Directors.

On December 30, 1982, five members of LEPA, including the City of Alexandria, joined together to purchase a 20% interest in the “Rodemacher # 2 Plant,” a coal fired electrical generating facility owned by Central Louisiana Electric Company, Inc., for a bonded indebtedness of $109,515,000.00. On November 15, 1982, in anticipation of LEPA’s purchase of an interest in Rode-macher # 2, the City of Alexandria had entered into a “Power Sales Contract,” dated October 1, 1982, with LEPA which obligated the City to begin purchasing its power from LEPA as of January 1, 1983.

In November 1982, between the date of the “Power Sales Contract” and the time the City was to begin receiving power from LEPA and Rodemacher # 2, Mr. Snyder defeated Mr. Lanier in the Alexandria may-orial election. Mayor Snyder was sworn in on December 6, 1982. Mayor Snyder appointed Mr. Roy city attorney on December 21, 1982; the City Council confirmed Mr. Roy. At that time both Mayor Snyder and Mr. Roy made public statements which indicated that neither the new mayor, nor his appointee, Mr. Roy, intended to honor the contract between the City of Alexandria and LEPA. In furtherance of this announced decision, Mayor Snyder refused, in mid-December shortly after assuming his mayorial duties, to certify the pledge of revenues to secure LEPA’s bonds. The pledge of the City of Alexandria was ultimately certified by the president of the Alexandria City Council and LEPA completed its purchase of an interest in Rode-macher # 2.

On January 1, 1983, the day Alexandria was supposed to begin purchasing its electrical power from LEPA, Mayor Snyder directed the superintendent of the City’s power plant to generate all of the electrical power needed in the City of Alexandria. As stated in Mr. Roy’s brief, “[ijmmediately conflict ... ensued because of the may- or’s breach of the LEPA contract, [and] his determination to end future collaboration with the LEPA consortium.”

Faced with this active breach of the City’s contract with LEPA by the» mayor, the City Council, on January 7, 1983, adopted a resolution (Resolution No. 2403-1982) directing the mayor to implement the provisions of the “Power Sales Contract;” this resolution was immediately presented to the mayor. Mayor Snyder refused to comply with this directive from the City Council. Later that same day, January 7, 1983, the City Council declared an “extreme public emergency” existed in the City of Alexandria and retained Mr. Hum-phries to represent the Council. (Ordinance No. 3-1983) The contract of employment between the City Council and Mr. Humphries was reviewed and approved by the attorney general as required by LSA-R.S. 33:1813 and Ordinance No. 3-1983.

In his capacity as “special counsel” to the City Council, Mr. Humphries brought suit against Mayor Snyder to mandamus the mayor to carry out the contract the City of Alexandria had previously entered into with LEPA. Mr. Roy, as city attorney, filed the instant action, a Writ of Quo War-ranto, to force Mr. Humphries to show by what authority he was acting on behalf of the City Council.

The above factual recitation provides the background for and brings us once again to our original question: Has Mr. Humphries sufficiently shown the authority under which he acted?

THE DECISION OF THE TRIAL COURT

After a hearing, on January 17 and 18, 1983, the trial judge found that Mr. Hum-phries had established sufficient authority to represent the City Council and dismissed Mr. Roy’s demands at his costs. The written reasons for judgment provided by the trial judge contained the following:

“In proceeding to reach a decision on the merits, the Court felt that while Mr. Roy’s attack upon Mr. Humphries’ status might more preferably have [been] brought in the form of injunctive relief and that the quo warranto action may appear somewhat wobbly because of the factual situation being sometimes in-definitive, nevertheless, he (Chris J. Roy) does claim a sort of usurpation of some specie of office or position, and since both parties are before the Court (defacto if no dejure), the Court should proceed to decide the case on the merits.
“Section 2-06 of the Home Rule Charter of the City of Alexandria reads as follows:
‘All powers of the City shall be vested in the Council, except as otherwise provided by law or this charter, and the councils shall provide for the exercise thereof and for the performance of all duties and obligations imposed upon the City by law.’
“Unless otherwise provided, this broad and rather sweeping authority would appear to permit the Council to do such a thing as obtain legal counsel.
. “Article 4, Section j-02(D) of the Alexandria Home Rule Charter provides as follows:
‘No special legal counsel shall be employed by the City except by written contract and approval of the City Council. ’
“While this provision may have been intended as a governor on the administrative arms securing of excessive legal services, its language is sufficient to authorize the City Council to secure special counsel.
“City Councils routinely retain special counsel all the time for such things as bond issues, etc. As a matter of fact, the Alexandria City Council just recently retained ... [a local attorney] as special counsel in connection with the finalization of the Louisiana Energy and Power Authority Bond Issue.
“Moreover, Louisiana Revised Statutes 33:1813 authorize municipalities ‘in extreme necessity’ to employ additional counsel. The Court feels in view of all of the facts and circumstances surrounding this matter that an extreme necessity did exist in connection with the City Council’s actions in retaining special counsel.
“In any event, if the City Council has a standing in court, and I believe that it does, it goes without saying that it has a right to be represented by counsel under the fundamental concepts of our American legal system.
“The Contract of Employment in this case is in full compliance with the law; therefore, the Court finds that Guy E. Humphries, Jr. has sufficiently established the authority by which he holds the position of special counsel for the Alexandria City Council, and the other plaintiffs in Civil Suit Number 125,647 on the docket of this court.
“The demands of the plaintiff in this suit (docket number 125,685) are de nied, and the plaintiff is assessed for court costs. ”

Mr. Roy has appealed the above dismissal by the trial court citing nine assignments of error. We note that several of these assignments deal with the ability and validity of the City of Alexandria bringing suit against Mayor Snyder; the appeal of the district court ruling in Civil Suit Number 125,647 has been dismissed upon joint motion of the parties to that action and issues concerning that case are not now before us. What is before us is an appeal of the trial court’s ruling on the narrow question of quo warranto.

The purpose of a writ of quo war-ranto is to order the defendant, Mr. Hum-phries in this case, to show by what authority he is acting. C.C.P. articles 3901 and 3902. Considering the entire record of this case, particularly the underlying dispute between the City Council and Mayor Snyder over the LEPA contract, we cannot say the trial judge was clearly wrong in his factual determination that an “extreme necessity” existed in connection with the City Council’s hiring of Mr. Humphries. Given such a finding, LSA-R.S. 33:1813 specifically authorizes the actions taken by the City Council and this action is, in part, the authority under which Mr. Humphries acted. Further, we agree with the trial judge’s reasoning concerning the quoted portions of the Alexandria Home Rule Charter and his reliance on these as additional authority to support Mr. Humphries’ actions.

For these reasons, the judgment of the trial court is affirmed. Appellant, Mr. Chris Roy, shall pay the costs of this appeal.

AFFIRMED.

      . Ordinance No. 17501982 adopted by the Alexandria City Council on September 28, 1982, authorized Mayor Lanier, and City Clerk Jon W. Grafton, to enter into the "Power Sales Contract” on behalf of the City.
      The "Power Sales Contract" with the City of Alexandria, and similar contracts with the four other LEPA member municipalities which joined in the purchase of a portion of Rode-macher # 2, were entered into prior to the actual purchase of Rodemacher #2 because, as a condition for the sale of the bonds which covered the purchase price, the revenues to be generated by the "Power Sales Contract” were to be pledged as security for the bonds. See: Bd. of Com’rs of La. v. All Taxpayers, Etc., 360 So.2d 863 (La.1978), in which the Louisiana Supreme Court, overruling a decision by this court, found that such contracts and pledges of future revenues as security for bonds was allowable. The LEPA bonds were issued pursuant to the State Power Authority Act, LSA-R.S. 33:4545.1 et seq. The provisions reviewed by the Supreme Court in Bd. of Com’rs of La., were LSA-R.S. 33:1321-1337, the "local services law.” The statutory framework of these two sets of statutes is very similar and we see no reason that the rational of Bd. of Com’rs of La. would not apply, in this case, to similar questions as were addressed by the Supreme Court.


author: GUIDRY, Judge.

text:
    STATE of Louisiana, Through the DIVISION OF ADMINISTRATION, Plaintiff-Appellant, v. ALGERNON BLAIR, INC., Defendant-Appellee.
    No. 83-348.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 1, 1984.

      Hawley & Schexnayder, W. Paul Haw-ley, Lafayette, for plaintiff-appellant.
    Breazealle, Sachse & Wilson, Michael D. Hunt, Baton Rouge, Smith, Currie & Hancock, Bert R. Oastler, Atlanta, Ga., for defendant-appellee. •
    Before GUIDRY, CUTRER and STOKER, JJ.
   GUIDRY, Judge.

This contract dispute arises out of the construction of the University Medical Center in Lafayette, Louisiana. The State of Louisiana, through the Division of Administration, as owner, contracted with Alger-non Blair, Inc. to construct the Medical Center. The construction contract was entered into on July 7, 1977. Disputes arose between the parties during the construction. Pursuant to the terms of the contract, Blair filed certain claims with the American Arbitration Association. The State subsequently filed suit seeking dam- ages for breach of contract. The district court stayed the proceedings pending arbitration of the dispute, as provided for by the contract. This court affirmed that judgment. State, through the Division of Administration v. Algernon Blair, Inc., 415 So.2d 612 (La.App. 3rd Cir.1982).

The claims of both parties were heard by a panel of arbitrators representing the American Arbitration Association. The proceedings included approximately thirty-five days of hearings, during which a voluminous record was compiled. On November 4, 1982, the arbitrators rendered their award. Blair was awarded the sum of $5,367,988.00. Of this total, $985,414.00 was found by the arbitrators to be due certain subcontractors of Blair. The names of the subcontractors and the amount owed to each were listed in the award. The arbitrators awarded the State the sum of $141,250.00 on its counterclaim against Blair. Costs were assessed against the State. In addition, the arbitrators ordered that interest would accrue on the award at the rate of 12% beginning forty-five days after the date of the award.

On November 30, 1982, Blair filed a petition in the district court to have the award of the arbitrators confirmed pursuant to LSA-R.S. 9:4209. The State filed a motion to vacate the award pursuant to LSA-R.S. 9:4210, or alternatively, to modify or correct the award pursuant to LSA-R.S. 9:4211. The trial court denied the State’s motions and confirmed the award of the arbitrators. The State appeals this judgment.

On appeal, the State urges that the trial court erred in refusing to vacate or modify the award of the arbitrators. The alleged error centers around the inclusion of interest in the award. The State claims that, in addition to the future interest awarded by the arbitrators, the amounts awarded Blair and its subcontractors included accrued interest on the amounts owed by the State. The State asserts that the award of interest in any form is prohibited by the contract, and further, that the award of interest against the State is prohibited by the law of Louisiana.

The ground relied upon for vacating the award appears in LSA-R.S. 9:4210, which provides in pertinent part:

“In any of the following cases the court in and for the parish wherein the award was made shall issue an order vacating the award upon the application of any party to the arbitration.
D. Where the arbitrators exceeded their powers or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.”

The State asserts that the arbitrators exceeded their authority in awarding interest, and that the trial court erred in refusing to vacate the award on that ground.

The grounds for modification or correction of an arbitration award are found in LSA-R.S. 9:4211:

“In any of the following cases the court in and for the parish wherein the award was made shall issue an order modifying or correcting the award upon the application of any party to the arbitration.
A. Where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award.
B. Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.
C. Where the award is imperfect in matter of form not affecting the merits of the controversy.
The order shall modify and correct the award so as to effect the intent thereof and promote justice between the parties.”

The State bases its motion to modify or correct the award on the alleged inclusion in the award of accrued interest on the amounts owed Blair by the State. Because the contract in question provided that no payments for interest on amounts owed either party would be due under the contract, the State urges that the inclusion of such interest in the award resulted from either an evident miscalculation or an award upon a matter not submitted to the arbitrators.

ACCRUED INTEREST

A factual dispute exists as to whether the award of the arbitrators included accrued interest on the money owed to Blair and the subcontractors. Blair was awarded the sum of $5,367,988.00. The award designated $985,414.00 of this total as being due to subcontractors of Blair. The amount owed each subcontractor was set out in the award. However, none of the amounts awarded Blair or the subcontractors were itemized. It is thus impossible to determine which elements of each claim were allowed or disallowed. More importantly, it is impossible to determine whether any of the amounts awarded included accrued interest. Nevertheless, the State contends that certain awards necessarily include accrued interest.

In support of this contention, the State points to a post-hearing brief submitted by Blair to the arbitrators prior to the rendition of the award. The brief contains a summary of Blair’s claims against the State, and delineates the amounts claimed for labor, materials, insurance and other costs, as well as the amounts claimed on behalf of the various subcontractors. The summary of claims also included a claim for accrued interest. This summary reflects a total claim by Blair and its sub-contractors, excluding interest, of $5,992,-251.00, which amount exceeds that ultimately awarded by the arbitrators. The thrust of the State’s argument is that the amount awarded to Blair alone (the total award less amounts actually awarded to subcontractors) must have included interest, because the amount awarded exceeds the sum of the other elements of Blair’s claim as summarized in brief. We reject this argument.

The State would have us rely on figures appearing in the brief submitted by Blair to the arbitrators, to the exclusion of the testimony taken in thirty five days of hearings before the panel. We do not have the benefit of a transcript of the arbitration proceedings. Thus, we do not know what claims were submitted to the panel, the manner in which they were presented, which of the claims were meritorious, nor the equities which may have existed in the position of any party to the controversy.

In Transcontinental Drilling Co., Inc. v. Davis Oil Company, 354 So.2d 235 (La.App. 4th Cir.1978), a party aggrieved by an arbitration award sought to have the award modified, alleging an evident miscalculation of figures. The court found that, because the award of the arbitrators was not itemized, there could be no evident miscalculation of figures. The court stated:

“It was conceded at appellate hearings that the arbitration proceedings had been recorded by a court reporter, but, because of the expense of transcribing such a voluminous record, it had been agreed that no transcript would be put into the record on appeal. Had a transcript been introduced, it is possible that a miscalculation of figures might have been evident. However, on the basis of the record sans transcript, the alleged miscalculation is purely suppositional. An explanation for the quantum of the award which is more plausible than miscalculation of figures is that the arbitrators, faced with both sides of the case, found $17,490 to be an equitable award.”

Similarly, we are unable to conclude, without a transcript of the arbitration proceedings nor an itemization of the arbitrator’s awards, that the award to Blair and the subcontractors included accrued interest. We therefore do not reach the question of whether an award of accrued interest would constitute grounds for the vacation or modification of the award of the arbitrators.

FUTURE INTEREST

The remaining issue is whether the arbitrators’ award of future interest is prohibited by the contract between the parties or by the law of Louisiana, and if so, whether the award of such interest requires the vacation or modification of the arbitrators’ award. In making the award, the arbitrators ordered that interest would accrue on the award at the rate of 12% per annum beginning forty-five days after the date of the award.

Article 7.9.1 of the General Conditions of the contract in question provided the following:

“Any moneys not paid when due to either party under this Contract shall bear interest at the legal rate in force at the place of the Project."

However, supplementary conditions were added to the contract, Article 7.9 of which provides:

“Delete entire subsection 7.9.1 and substitute in its place the following: 7.9.1. There shall be no payment of interest on money owed.”

The State contends that by awarding post-award interest, the arbitrators exceeded their authority, necessitating the vacation of the award pursuant to LSA-R.S. 9:4210. We find this contention to be mer-itless.

Prior to the addition of the supplemental conditions, the contract in question provided that all amounts not paid timely would bear interest at the legal rate until paid. In our view, this provision clearly referred to interest accruing on unpaid delinquent accounts. By the supplemental condition, this provision was deleted, and it was agreed that there would be no payments of interest on money owed. Likewise, the supplemental provision refers to interest accruing on delinquent accounts. It relieves the parties from liability for interest on outstanding debts. It prohibits either party from billing the other for interest on the balance owed.

In the award of the arbitrators, post-award interest was allowed on the total determined by the panel to be owing the contractor. Its purpose, the same as that of post-judgment interest, is to encourage prompt payment of a liquidated debt. LSA-C.C. Art. 1938 provides that all debts bear interest at the rate of 12% per annum from the time they become due, unless otherwise stipulated. In the contract in question, the supplemental condition regarding interest clearly absolved both parties from any liability for interest accruing on unpaid delinquent accounts. However, this provision did not relieve either party from liability for interest running on the award ultimately granted by the arbitration panel, and did not prohibit the arbitrators from making such an award of interest. The arbitrators did not exceed their authority by including post-award interest in the award.

We further observe that the award of interest by the arbitrators is authorized by the trial court’s power to confirm an arbitration award. LSA-R.S. 9:4214 provides that a judgment confirming, modifying, or correcting an arbitration award “... shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action, and it may be enforced as if it had been rendered in an action in the court in which it is entered.” Thus, in confirming the award of the arbitrators, the trial court had the authority to award judicial interest from the date of judicial demand. See LSA-C.C. Art. 2924. Blair’s motion to confirm the award was filed in the trial court on November 30, 1982. Judicial interest was therefore awardable from that date. The interest awarded by the arbitrators did not begin to run until forty-five days after the award, December 19, 1982. The court, in confirming the award, awarded interest at the rate of 12% per annum from that date. Because the trial court was authorized to award judicial interest from November 19, 1982, the award of interest from December 19, 1982, clearly falls within the power of the trial court to award judicial interest.

Finally, the State argues that an award of interest against the State is prohibited. The State relies on a line of cases holding that the State or its agencies cannot be compelled to pay interest on unpaid accounts absent some provision therefor by statute or stipulation. See, e.g., Boxwell v. Department of Highways, 203 La. 760, 14 So.2d 627 (1943); Hamberlin v. Tangipahoa Parish School Board, 210 La. 483, 27 So.2d 307 (1946); Corbello v. Jefferson Davis Parish Police Jury, 262 So.2d 151 (La.App. 3rd Cir.1972).

The cases relied upon by the State predate the Constitution of 1974. Any immunity from the payments of interest was removed by LSA-Const. Art. 12, § 10, which provides in pertinent part:

“Section 10. (A) Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

We find that the broad language of this section which eliminates the State’s immunity from suit and liability, renders the State liable to the same extent as a private litigant. The State no longer enjoys immunity from liability for interest. Thus, the arbitrators did not exceed their authority by including future interest in the award.

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal in the amount of $8320.94 are taxed against the State.

AFFIRMED.

      . While Blair may have been entitled to interest from November 19, 1982, no complaint in this regard was made in this court or the court below.