author: GULOTTA, Judge.

text:
    STATE of Louisiana v. Jimmy D. KING a/k/a Allen Dale McCord.
    No. KA-0334.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Clifford E. Poche, Metairie, for defendant-appellant.
    Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Before GULOTTA, GARRISON and KLEES, JJ.
   GULOTTA, Judge.

Jimmy King pleaded guilty to the charge of attempted simple burglary, a violation of LSA-R.S. 14:27 and 14:62, after entering into an agreement that provided he would receive probation if the presentencing investigation report so recommended. When the report recommended against probation, the defendant sought to withdraw his guilty plea. The trial judge refused. Defendant claims he was led to believe that if the report recommended against probation, and if he were gainfully employed, the trial judge would permit him to withdraw the guilty plea and enter a plea of not guilty. Defendant was represented at the hearings but by different counsel.

The record contains a copy of the “Boykin form” or waiver of constitutional rights and a guilty plea signed by defendant, counsel and the trial judge. On the face of the form is a hand written notation, “PSI if reccomend [sic] probation will be given.” At the sentencing hearing, defendant testified that the trial judge who had accepted his plea had promised:

“that he’d give me probation following an examination.... I was under the impression that... as long as I was working. . .I’d get probation.”

At an October 12,1981 hearing when the guilty plea was entered, the original trial judge questioned King regarding the voluntary nature of his plea, informed him of his constitutional rights and inquired whether any promises had been made in exchange for his guilty plea. After the trial judge explained the effects of the Louisiana Habitual Offender Law (LSA-R.S. 15:529.1) and the court again inquired of the voluntary nature of defendant’s plea, the judge ordered a presentence investigation.

On June 23, 1982, a sentencing hearing was conducted at which the trial judge denied King’s oral motion to withdraw the guilty plea and continued the sentencing hearing to a future date.

At the July 23,1982 sentencing, the unfavorable presentence investigation report . was received and King sought to withdraw the guilty plea. Although the report is not contained in the record, it is clear that King’s four prior convictions, under an assumed name, influenced the unfavorable report.

In denying defendant’s motion to withdraw his guilty plea, the trial judge reviewed the four prior convictions and stated:

“The court has no evidence whatsoever of any mitigating or extenuating circumstances .... ”

Despite defendant’s claim that an agreement had been made with the State and the trial judge that he could withdraw his guilty plea if an unfavorable report was made, the record in our case does not support this conclusion. It is silent concerning any agreement if the PSI recommended against probation. Only the defendant testified at the hearing on his request to withdraw the guilty plea. Neither the defense attorney who represented the defendant at the time of the plea agreement, the trial judge who accepted the plea, nor the district attorney was called to testify. Further, no minute entry was made indicating any such agreement.

LSA-C.Cr.P. Art. 559 provides: “The court may permit a plea of guilty to be withdrawn at any time before sentence.” The discretion to permit a guilty plea to be withdrawn is vested in the trial judge, and is not to be exercised arbitrarily. See State v. Compton, 367 So.2d 844 (La.1979). A guilty plea is constitutionally infirm when the State does not fulfill an express or implied part of the plea bargaining agreement which precipitated defendant’s decision to so plead, and due process may be offended both when there is a promise which is later broken and when the defendant justifiably believes that there is a promise which is later broken. See State v. Hayes, 423 So.2d 1111 (La.1982).

In limited circumstances, such as a failure to uphold an agreement or change an agreement, the Louisiana Supreme Court has held that a defendant should be allowed to withdraw his guilty plea. In State v. Chalaire, 375 So.2d 107 (La.1979), unlike the instant case, the record indicated that defendant had been promised suspended sentences and probation in return for his guilty pleas. After the trial judge changed his mind and withdrew his promise, but did not give the defendant an opportunity to withdraw his guilty plea, the Supreme Court vacated the sentences and remanded the matter to the trial court.

In State v. Galliano, 396 So.2d 1288 (La. 1981), the defendant was allowed to withdraw his guilty plea after the trial judge determined he had misled the defendant when accepting the plea. Likewise, in State v. Hayes, supra, the defendant was allowed to withdraw his guilty pleas because they had been induced by either an implied promise by the district attorney or the defendant’s justifiable belief that no multiple bill would be filed against the defendant or that he would be sentenced to a term greater than four years.

On the other hand, our Supreme Court has not allowed a defendant to withdraw a guilty plea where no express statements or agreements were made. See State v. Lockwood, 399 So.2d 190 (La.1981). In the Lockwood case, the defendant contended he had entered his guilty plea believing he would receive a suspended sentence and probation. He based his belief on discussions his attorney had with the district attorney and the trial judge. The Louisiana Supreme Court pointed out that defendant never seriously contended an actual promise or plea bargain had been made, and there was no evidence in the record of any promise by the district attorney in return for the guilty plea. Further, the Court went on to note that a misunderstanding does not have the same impact as a breached promise.

In State v. Deakle, 372 So.2d 1221 (La. 1979), a defendant was not allowed to withdraw his guilty plea where the trial judge had made no promises but the defendant’s attorney expressed to his client the belief that the sentence “based on the attorney’s experience” would be between ten and twenty-five years and the trial judge in fact intended to impose a thirty-five year sentence.

Our case falls more within the Lockwood and Deakle situations rather than those in Chalaire, Galliano and Hayes. Under these circumstances, we find no abuse of the trial court’s discretion in refusing to allow defendant to withdraw his guilty plea. Accordingly, the judgment of the trial court is affirmed.

AFFIRMED.

      . At the July 23, 1982 sentencing hearing, defendant testified that he “possibly” had four convictions under the name Allen Dale McCord. The trial judge noted defendant had been convicted on January 29, 1975 for burglary and sentenced one to five years; on March 4,1976 for possession of burglary tools; and on March 21, 1977 for attempted felony burglary and a further offense.

      . The judge who accepted the guilty plea was not the same judge who imposed the subsequent jail sentence.


source: Caselaw Access Project

license: Public Domain

text:
    Cheryl BOUDREAUX v. CHIEF ADMINISTRATIVE OFFICE.
    No. CA-0628.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.

      Frank Pola, Jr., N.O. Legal Assistance Corp., David Naccari, New Orleans, for plaintiff-appellant.
    Bernette J. Johnson, Asst. City Atty., New Orleans, for defendant-appellee.
    Before GULOTTA, GARRISON and KLEES, JJ.
   GULOTTA, Judge.

Cheryl Boudreaux appeals from the Civil Service Commission’s decision upholding her termination as a probationary automotive mechanic with the Equipment Maintenance Division (EMD) of the City of New Orleans.

Plaintiff contends 1) that the hearing examiner’s lack of objectivity deprived her of a fair hearing, and 2) that the Commission erred in holding that she had failed to prove sex discrimination as required by LSA-Const. Art. 10 § 8. We find no merit to these contentions. Accordingly, we affirm.

According to plaintiff, the examiner at the hearing acted without authority under his constitutional role by improperly commenting on the evidence, giving his opinion on the merits, and asking leading, inflammatory questions. We do not agree.

We do not find any specific instances of lack of objectivity by the examiner. His comments included his opinion that plaintiff had failed to prove discrimination, and that some actions by plaintiff’s superiors had not constituted- discrimination. The examiner’s questions were leading only to the extent necessary to elicit testimony and expedite the hearing.

Although it is true that the examiner voiced his opinion and commented on plaintiff’s failure to meet the burden of proof, nonetheless, according to LSA-Const. Art. 10 § 12(B), he is appointed “to take testimony”, and has no decisional power. See Goudeau v. Dept. of Public Safety, Div., Etc., 349 So.2d 887 (La.App. 1st Cir.1977), writ denied 351 So.2d 165 (La.1977). We do not find that the examiner’s conduct in our case deprived plaintiff of an opportunity to present evidence or denied her a fair hearing.

Plaintiff also contends that the examiner’s refusal to allow her to rebut adverse testimony denied her a fair hearing. The testimony plaintiff sought to rebut was that of witnesses called on her behalf. As her witnesses, she vouches for their veracity unless they are called as adverse witnesses. This was not done in this case. Furthermore, assuming she had been permitted to retestify, she presumably would have only reaffirmed her testimony offered earlier in the hearing. Under these circumstances, we find no prejudice to plaintiff.

Further, we reject plaintiff’s argument that she successfully proved that her dismissal was based on sex discrimination.

Boudreaux testified she felt she had been terminated for “sexual things”. She claimed that the first incident of sexual harassment occurred when her former immediate supervisor transferred her from his crew because “he didn’t want any women in the crew.... ” Additionally, she claimed she was dismissed because she “wouldn’t play ball” with her shop supervisor, a different individual, and would not submit herself “to being sexually harassed by him.” Boudreaux stated that this shop supervisor would comment on her appearance, and called himself a “dirty old man”. According to plaintiff, he stated he “likes black women” and on receiving her paycheck, once told her, “I have been trying to play with you but you won’t let me.” Bou-dreaux further testified that on other occasions he almost kissed her, offered to reach into her blouse to obtain change, and poised himself as if ready to tackle her.

None of Boudreaux’s testimony relating to sexual harassment was corroborated by any of the seven other witnesses plaintiff called on her behalf. The shop supervisor testified he had “treated her in a decent manner”, “respected her as a lady”, and had not been “overfriendly” to Boudreaux in any way. He denied suggestively teasing her, attempting to tackle her, or asking her to park outside his office to view her for sexual purposes as claimed by plaintiff. He stated it “didn’t make any difference who she was ..., as long as she did her job.” Boudreaux’s second immediate supervisor corroborated the shop supervisor’s testimony by denying having heard him make an offer to reach into plaintiff’s blouse.

Further, plaintiff’s former immediate supervisor testified that he had requested Boudreaux be transferred from his division because “she didn’t want to accept the policies”, and resented his authority. According to him, it was Boudreaux, not he, who made the statement that he “didn’t like her because she was a woman”. Another maintenance supervisor, who had witnessed this conversation, corroborated his testimony.

Similarly, three other co-workers all testified that they were unaware of any incidents of discrimination or harassment against Boudreaux.

Under LSA-Const. Art. 10 § 8(B), the employee bears the burden of proving unlawful termination because of sex discrimination. See also Bernard v. L.H.H.R. A. — Southwest Charity, Etc., 358 So.2d 653 (La.App. 1st Cir.1978). Considering the evidence, we find no error in the Commission’s conclusion that Boudreaux failed to meet her burden.

Rather, the record supports the Commission’s conclusion that Boudreaux was dismissed for cause based on evidence of her excessive tardiness, excessive sick leave, insubordination, profanity, and inordinate delay in performing her job.

Accordingly, we affirm the judgment of the Civil Service Commission.

AFFIRMED.

      . LSA-Const. Art. 10 § 8(B) provides: “No classified employee shall be discriminated against because of ... sex_ The burden of proof on appeal, as to the facts, shall be on the employee.”


text:
    Labertha COLBERT v. LOUISIANA STATE DENTAL SCHOOL and Underwriters Adjusting Company.
    No. CA-0692.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Writ Granted Oct. 28,1983.

      Norman Mopsik, New Orleans, for plaintiff-appellant.
    Mary H. Thompson, Baton Rouge, Felix R. Weill, Baton Rouge, for defendants-ap-pellees.
    Before GULOTTA, GARRISON and KLEES, JJ.
   GULOTTA, Judge.

In this worker’s compensation case, we are confronted with the question whether an oral settlement dictated into the record is binding against a plaintiff who subsequently refused to execute written settlement documents.

Plaintiff filed suit for total and permanent disability arising from her work-related back injury. On the date the case was scheduled for trial, the following discussion among the judge and counsel ensued:

THE COURT:

Let the record reflect that this case was docketed for trial on its merits as of today’s date. Following a pretrial conference, the attorneys of record informed the Court that they have settled and they will subsequently present workmen’s compensation settlement forms or papers. They have asked the Court to approve of the settlement and the Court has approved and spoken to the claimant. The settlement is for the defendant to pay to the plaintiff the sum of $4,500.00 plus the costs of Dr. Soboloff’s treatment of the plaintiff in connection with this particular case.

MR. MOPSIK: [plaintiff’s attorney]

And the X-rays, if I may add, which was in connection with this.

THE COURT:

Associated with it.

MR. WEILL: [defendants’ attorney]

And I understand that those costs are $85.00 for X-rays and $125.00 for the doctor.

MR. MOPSIK:

For Dr. Hyman Soboloff.

MR. WEILL:

We agree to pay that.

Approximately one month later, defendants’ attorneys submitted to plaintiff a draft for $4,710.00 together with releases. Because of the discovery of medical evidence after the court appearance, plaintiff refused to accept the check and sign the accompanying documents. Defendants thereupon filed a motion to enforce settlement, which was granted. From the judgment ordering her to execute settlement documents, plaintiff has appealed. We reverse.

LSA-R.S. 23:1272 sets forth the procedure for settlement in worker’s compensation cases:

§ 1272. Court appointed attorneys; venue; approval of compromise by court
The agreement entered into between the employee or his dependents and the employer or his insurer, shall be presented to the court for its approval upon a joint petition verified by all parties thereto. The judge to whom the petition is presented shall, in every case, discuss the settlement and its terms with the employee or his dependents. When the employee or his dependents are not represented by a lawyer the petition shall be presented to the district court in the parish of the domicile or principal place of business of the defendant, or in the parish where the accident occurred, or in the parish of the domicile of the employee or his dependents, at the option of the employee or his dependents, and the judge shall appoint one to advise them relative to the proposed compromise settlement. A reasonable fee for such services shall be fixed by the court and taxed as costs. The judge shall require such proof of the dispute between the parties and of the other facts set out in the joint petition as he thinks proper.

The statute expressly requires a written, verified joint petition of settlement to be approved by the trial judge. Absent compliance with this statutory procedure, there is no settlement. See Jasmin v. Gafney, Inc., 357 So.2d 539 (La.1978).

In our case, no written settlement was presented to the court for its approval. The attorneys only orally agreed to a settlement and indicated they would “subsequently present workman’s compensation forms or papers.” Without a joint, written petition verified by the parties, as required by LSA-R.S. 23:1272, the colloquy dictated in the record in our case does not constitute a valid and enforceable compromise. Under these circumstances, either party wás free to withdraw its assent to the tentative agreement before the signing of a verified petition and a judgment of approval. See Nguyen v. Lengsfield Bros., Inc., 417 So.2d 525 (La.App. 4th Cir.1982).

Accordingly, the judgment appealed from is reversed and set aside. The matter is remanded for further proceedings.

REVERSED AND SET ASIDE; REMANDED.


author: KLEES, Judge.

text:
    Joseph P. DORIGNAC, Jr., Joseph P. Dorignac, III, Louis J. Roussell, III, and the Fairgrounds Corporation v. The LOUISIANA STATE RACING COMMISSION.
    No. CA-0754.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.

      Herschel C. Adcock, Martha S. Hess, Ad-cock, Dupree, Shows & Clegg, Baton Rouge, Louie J. Roussell, III, New Orleans, for plaintiffs-appellees.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen. and Atty. for La. State Racing Com’n, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and KLEES, JJ.
   KLEES, Judge.

FACTS

This case emanates from the adoption of Rules of Racing LAC 11-6:25.35 by the Louisiana State Racing Commission.

The rule states:

“No owner or trainer shall enter, or cause to be entered, a horse to race at a track of an association in which he has a direct or indirect financial interest.”

After the rule was adopted but before its effective date, the Fair Grounds Corporation and others sought a declaratory judgment from the Racing Commission on the validity of the rule. The Commission found that the adoption of the rule was a valid exercise of its statutory authority and that the rule was adopted in accordance with law.

On November 22, 1982, Joseph P. Dorig-nac, Jr. (and others) filed a petition for injunctive relief, alleging that the rule was invalid because it had not been adopted in accordance with law. Pursuant to the petition, a temporary restraining order was issued enjoining enforcement of the rule.

The Racing Commission filed a motion to vacate the order, but on December 20,1982, the trial court issued a preliminary injunction enjoining enforcement of Rules of Racing, LAC 11-6:25.35. The Racing Commission now appeals the judgment of the trial court.

ISSUE

The single issue in this case is whether Rule of Racing LAC 11-6:25.35 was validly adopted by the Racing Commission. The trial court found that it was not and we agree and affirm its decision.

The Louisiana State Racing Commission is mandated by La.R.S. 4:197 to promulgate its rules in accordance with the Administrative Procedure Act.

La.R.S. 49:953 outlines the procedure for the adoption of a rule by an agency governed by the Act. La.R.S. 49:953 states in pertinent part:

A. Prior to the adoption, amendment, or repeal of any rule, the agency shall: (1) Give at least fifteen days notice of its intended action. The notice shall include a statement of either the terms or substance of the intended action or a description of the subjects and issues involved; a statement, approved by the Legislative Fiscal Office, of the fiscal impact of the intended action, if any; or a statement, approved by the Legislative Fiscal Office, that no fiscal impact will result from such proposed action; a statement, approved by the Legislative Fiscal Office, of the economic impact of the intended action, if any; or a statement, approved by the Legislative Fiscal Office, that no economic impact will result from such proposed action; the name of the person within the agency who has the responsibility for responding to inquiries about the intended action; and the time when, the place where, and the manner in which interested persons may present their views thereon. The notice shall be published at least once in the Louisiana Register. Notice of the intent of any agency to adopt, amend or repeal any rule and the approved fiscal and economic impact statements, as provided for in this Subsection, shall be mailed to all persons who have made timely request of the agency for such notice, which notice and statements shall be mailed at the earliest possible date, and in no case later than the date when the proposed rule change is submitted to the Louisiana Register. For the purpose of timely notice as required by this Paragraph, the date of notice shall be deemed to be the date of publication of the issue of the Louisiana Register in which the notice appears, such publication date to be the publication date as stated on the outside cover or the first page of said issue, (emphasis added)

When the Racing Commission published its initial notice of its intent to adopt LAC 11-6:25.35, the full text of the rule did not appear in the Louisiana Register. The notice of intent did not contain the terms or substance of the intended action. Furthermore, the notice of intent did not give a description of the subjects and issues involved.

The complete entry of notice which was printed in the November 20, 1981 issue of the Louisiana Register read as follows:

NOTICE OF INTENT

Department of Commerce

Racing Commission

The Louisiana State Racing Commission does hereby give notice in accordance with law that it intends to adopt a new rule, LAC 11-6:25.35.

Copies of the Rule LAC 11-6:25.35 may be obtained by telephoning the commission at Area Code 504, 568-5870 or by writing to 616 Baronne Street, Second Floor, New Orleans, Louisiana 70113.

The office of the Commission will be open from 9 a.m. to 4 p.m. and interested persons may call Alan J. Le Vasseur during this time, holidays and weekends excluded for a copy of this rule. All interested persons may submit written comments relative to this rule through December 4, 1981.

J. Melton Garrett Chairman

La.R.S. 49:954(A) provides in relevant part:

“No rule adopted on or after January 1, 1975, is valid unless adopted in substantial compliance with this Chapter.”

We view “substantial compliance” to mean that this court should determine whether the statute has been followed sufficiently so as to carry out the intent for which it was adopted. What constitutes substantial compliance with a statute is a matter depending on the facts of each particular case.

The primary purpose of the procedure set forth in La.R.S. 49:953 is to insure that all interested parties are made aware of or have notice of any proposed rule which may be adopted. The mere recitation of the Racing Commission that “it intends to adopt a new rule, LAC 11-6:25.35”, does not, in this courts mind, comprise “a statement of either the terms or substance Of the intended action or a description of the subjects and issues involved.”

In this particular case, we are not unmindful that the appellees were aware that the Racing Commission was considering the rule for adoption. The appellees also participated in the meetings of the Racing Commission and voiced their opposition to the rule.

Nonetheless, the proposed rule did not solely affect the appellees. The rule change literally affected hundreds of individuals. Notice is required to all whom the rule may in any way affect. (See Reed v. Ville Platte Fire and Police Municipal Board, 263 So.2d 924, 927 (La.App. 3rd Cir. 1972).

The trial court concluded that the notice of intent as printed in the Louisiana Register did not substantially comply with the notice requirements of La.R.S. 49:953 and therefore held that the rule was void ab initio.

The trial judge in articulating his reasons for judgment stated:

“. .. the State Racing Commission in adopting the rule ... did not state the subject matter of the proposed rule. It was absolutely void of any description of the rule that was to be adopted ... Our search of the jurisprudence does not lead us to a single case which gives validity to [the] procedure ... The word ‘notice’ is a word of art and as such must be complied with to at least a reasonable degree.”

We agree with the trial judge that the notice published by the Racing Commission did not substantially comply with the provisions of La.R.S. 49:953 and accordingly affirm his decision.

For the foregoing reasons the judgment appealed from is hereby affirmed. All costs to be borne by appellants.

AFFIRMED.


text:
    Sidney ROSENTHAL, Jr. v. Sidney ROSENTHAL, Sr.
    No. CA-0580.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.

      Ralph R. Alexis, III, Porteous, Hainkel, Johnson & Sarpy, New Orleans, for plaintiff-appellee.
    George O’Dowd, New Orleans, for defendant-appellant.
    Before GULOTTA, GARRISON and KLEES, JJ. ■
   KLEES, Judge.

On April 14, 1948, in the Judgment of Possession in the Succession of Mrs. Alice Rosenthal, the appellant and husband of the deceased, Sidney Rosenthal, Sr., was placed into possession of an undivided one-half interest in all of the property left by his deceased wife, and was granted a usufruct over the other undivided one-half. The ap-pellee and son of the deceased, Sidney Ro-senthal, Jr., was recognized as the sole heir of his mother and was placed into possession of an undivided one-half interest in all of the property left by his deceased mother subject to the usufruct granted by his mother.

At the time of the judgment, certain movable items were located in the family owned drugstore and apartment building located at 346 Verret Street in New Orleans. However, in the early 70’s the drugstore ceased operation and thereafter the items in question were simply stored at that location.

In 1979, the father and son apparently agreed that the movable property stored in the building should be sold at a mutually agreed upon price in order to facilitate a sale of the entire structure. In August of 1979, the appellee visited the building and noticed that it was totally and completely cleaned out. Subsequently, he discovered that his father had sold the property without his approval of the selling price.

Because of the sale, Sidney Rosenthal, Jr. sued his father claiming that the appellant violated the duties of a usufructuary. The trial court held that the movable property was sold without authority. Sidney Rosen-thal, Sr. now appeals that decision.

ISSUE

The issue presented in this case is whether the appellant had the authority to sell the movable items. We conclude that he did and reverse.

The applicable law is set forth in La.Civ. Code art. 568 which states:

The usufructuary does not have the right to dispose of nonconsumable things unless the right has been expressly granted to him. Nevertheless, he may dispose of corporeal movables that are gradually and substantially impaired by use, wear, or decay, such as equipment, appliances, and vehicles, provided that he acts as a prudent administrator. Upon disposition, the usufruct is converted into a usufruct of money, and the usufructuary is bound to pay to the naked owner at the end of the usufruct the value that the things had at the time of disposition, (emphasis added)

Article 568 lists equipment, appliances and vehicles as illustrative of the type of items that may be gradually and substantially impaired by use, wear or decay.

In order to' ascertain whether the items sold by the appellant qualify for the exception in favor of the usufructuary, it is necessary to examine the nature of the items involved. The movable property was particularly described in the Judgment rendered by the district court:

(1)(a) Three sets of solid Maple bedroom furniture consisting of chair, bed and chest of drawers;
(b) One set Walnut bedroom furniture consisting of bed, chifferobe, bureau and vanity.
(2) One set 5 Unit Drug Fixtures more particularly described as approximately 70 feet of wall cases consisting of glass-enclosed cases about 8 to 9 feet tall by 4 feet wide.

(3) 7 show cases, more particularly described as follows:

(a) One marble-based candy case;
(b) One marble board display case;
(c) One marble based Cigar case;
(d) Small wrapping counter and case with shelves and glass doors;
(e) 1 Carrare glass topped solid fountain with Credenza back;
(f) 1 Marble based display case;
(g) 1 Small wooden display case.
(4) One glass-topped Soda Fountain.

The old drug store fixtures can certainly be characterized as equipment. Clearly these items were implements used in the operation of the drug store.

The furniture described in the judgment of possession was shown at trial to be used in rental apartments and as such may also be characterized as equipment.

Our reading of the record shows that appellant and appellee were in agreement that the furniture and fixtures were to be sold and that the premises were to be cleared.

Appellee’s main argument is that appellant did not secure a high enough price.

Sidney Rosenthal Sr. testified that the items were deteriorated and many were even termite infested. These statements were never controverted. Considering the nature and condition of the items, we hold that the appellant had the right to sell the items based on the exception granted by law. C.C. art. 568.

Appellee argues that the value of the movables increased over time and therefore the exception should not apply. His expert who valued the property at $7,200.00 had not seen the property, but relied upon sketches and a description of it by appellee. The record indicates that the appellee himself tried to sell the items but the best firm offer he could obtain was $1,000. The appellant managed to sell the items for $3,000 and sent his son one-half of the proceeds (which he refused). The actions on the part of the appellant are indicative of a reasonable and prudent administrator. Therefore, we find that, under the factual circumstances of this case the appellant did not breach his duty as a usufructuary.

Accordingly, that portion of the judgment of the trial court in favor of plaintiff Sidney Rosenthal, Jr. and against defendant, Sidney Rosenthal, Sr. decreeing that Sidney Rosenthal, Sr. was not authorized to sell items of movable property included in the Judgment of Possession of the Succession of Mrs. Alice Darms Rosenthal, No. 280-751, Civil District Court for the Parish of Orleans is hereby reversed. All costs to be borne by appellee.

REVERSED.


text:
    Alma SPEARS v. Modesto AGUILAR, Insurance Company of Florida, Sharice Joseph, New Orleans Public Service, Inc.
    No. CA-0535.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.

      Charbonnet & Charbonnet, Jack J. Char-bonnet, Kenny M. Charbonnet, New Orleans, for plaintiff-appellee Alma Spears.
    Kierr, Gainsburgh, Benjamin, Fallon & Lewis, Judith A. Gainsburgh, New Orleans, for defendants-appellants Modesto Aguilar, Ins. Co. of Florida.
    C.B. Ogden, III, C.B. Ogden, II, New Orleans, for defendants-appellants Sharice Joseph and NOPSI.
    Before GULOTTA, GARRISON and KLEES, JJ.
   KLEES, Judge.

This is an action for personal injuries incurred by a fare-paying passenger on a bus which was involved in a collision with a taxi cab. The passenger filed suit against the taxi driver, his insurer, the bus driver and her employer, New Orleans Public Service, Inc. (NOPSI). The trial court found all defendants liable as joint tortfeasors and awarded plaintiff $37,467. The defendants appeal, each contending that the trial court erred in finding them liable and that the award granted by the trial judge was excessive. Plaintiff answered the appeal, alleging that the trial judge awarded inadequate damages, and seeks an increase of the award.

We find sufficient evidence in the record to warrant the trial court’s finding of liability on the part of all defendants. In addition, we find that the award of damages by the trial court was adequate.

FACTS

On February 1, 1980, Alma Spears was a fare-paying passenger aboard a NOPSI bus, driven by Sharice Joseph, which executed a right-hand turn from St. Charles Avenue onto Poydras Street. Before the turn was accomplished, however, the bus and a taxi cab, driven by Modesto Aguilar, collided. As a result of the collision, the bus made a sudden stop which threw plaintiff from her seat whereupon she struck her head and suffered injuries to her back. The parties differ, however, as to their versions of the manner in which the accident occurred.

Mr. Aguilar testified that after picking up a package in the right parking lane of St. Charles Avenue approximately 60 feet from the corner, he proceeded straight in the parking lane through the designated bus stop area to the corner of Poydras. At that time there was no bus in the area and the traffic light was yellow. He stopped and waited for the light to change to green. While his taxi was in this position, a bus pulled up on his left. When the light turned green, the bus made a right turn, striking his vehicle and dragging it forward. He stated that his vehicle never moved after coming to a stop at the corner pursuant to the caution light.

Ms. Joseph testified that she brought the bus to a stop at Poydras in the parking/bus stop area, about 4 to 6 feet from the curb. She claimed that there was no, cab or other vehicle in sight and the light was red. When the light turned green, she checked the right side of her bus before making the turn, and saw no vehicles there. While in the process of making the turn, she asserted, the cab apparently came up and tried to get between the rear of the bus and the curb. The bus had all but completed its turn when the accident occurred.

The trial court based its ruling of joint liability on the concurring negligence of the taxi driver and the operator of the bus. Although each defendant denies his own liability and argues the sole responsibility of the other, neither defendant overcomes the presumption of negligence which attaches when a collision between two vehicles injures an innocent third party. This presumption is as follows:

“Our law is well settled that when an innocent third party, such as a guest passenger in a motor vehicle, is injured as a result of a collision between two drivers, each of the drivers is presumed guilty of negligence, and the burden of proof falls upon each to exculpate himself from negligence proximately causing the injury to the third party. Poche v. Frazier, 232 So.2d 851 (La.App. 4th Cir.1970), writ denied, 256 La. 266, 236 So.2d 36 (1970); see also Michel v. State Farm Mutual Automobile Insurance Company, 314 So.2d 535 (La.App. 1st Cir.1975).” Parker v. Travelers Ins. Co., 369 So.2d 1120, 1122 (La. App. 1st Cir.1979), writ refused, 371 So.2d 1342 (La.1979).

In addition, there is a more specific presumption of negligence which is applicable to NOPSI. It states:

“The law applicable to the duty incumbent upon common carriers of passengers is clearly set forth in Carter v. NOPSI, 305 So.2d 481 (La.1975). The Carter case re-affirmed the well established rule that common carriers are charged with the duty of exercising the highest degree of care to their passengers and are liable for the slightest negligence causing injury to those passengers. The mere showing of an injury to a fare paying passenger on a public conveyance and his failure to reach his destination safely imposes upon the carrier the burden of exculpating itself of negligence.” Greenwald v. New Orleans Public Service, Inc., 414 So.2d 870, 871, (La.App. 4th Cir.1982).

Upon examination of the record, it is evident that the trial court did not err in holding that the presumption of negligence was not rebutted by either defendant.

LIABILITY OF SHARICE JOSEPH, THE BUS DRIVER

In finding that the bus driver was negligent, the trial court reasoned that she could or should have seen the cab to the right of the bus as she was stopped for the traffic light.

The trial court found that the bus driver failed to see what she should have seen, hence she was negligent in the manner in which she negotiated the right turn. According to her testimony, there was a mirror on the right side of the bus which provided for continuous monitoring of right-hand turns at busy intersections (such as the one at St. Charles and Poydras). Nevertheless, she stated that she did not see the taxi prior to the accident. In failing to notice the cab, she did not maintain a proper lookout, therefore, the trial court found that she was negligent.

NOPSI relies heavily on plaintiff’s signed statement given to one of its investigators on February 5, 1980 to show absence of liability. They contend that according to the statement, the sole proximate cause of the accident was the careless driving of Mr. Aguilar, whose cab suddenly appeared in the path of the turning bus. The contents of the statement, however, were recanted by plaintiff in court when she testified that she did not observe the taxi at all before the collision and that the investigator suggested that he already knew how the accident happened.

The trial court apparently adopted the version plaintiff recited in court and gave little weight to the testimony of Mr. Harold Dauphin, the investigator for NOPSI, to whom Ms. Spears made the earlier statement. We recognize that the trier of fact is better situated than the reviewers of the appellate record to assess the credibility of witnesses, and under ordinary circumstances we must rely on his subjective determination. Accordingly we find no error in the court’s conclusion that the bus driver was negligent.

LIABILITY OF MODESTO AGUILAR, THE CAB DRIVER

Mr. Aguilar argues that the trial judge erred in finding him negligent per se.

In his “Reasons for Judgment” the trial court stated “... [the] negligence of Modesto Aguilar consists inviolation of the law prohibiting driving a vehicle in a parking lane or bus loading zone...”

There are two pertinent ordinances in the City of New Orleans Municipal Code, 1956:

Section 38-91. Driving in parking lane not permitted.
Where parking is permitted in a lane of traffic immediately adjacent to the curb, no vehicle shall travel in such lane of traffic except for the purpose of stopping or parking, or for the purpose of making a turn, and when making a turn, only within fifty feet (50') from the intersection where the turn is to be made. (M.C.S., Ord. No. 3816, § 1 6-6-68.)
Section 38-230. Restricted use of a bus stop, livery and taxicab stands.
No person shall stop, stand or park a vehicle other than a bus in a bus stop, other than a livery vehicle in a livery stand or other than a taxi in a taxicab stand, when any such stop or stand has been officially designated and appropriately signed, except that the driver of a passenger vehicle may temporarily stop therein for the purpose of and while actually engaged in loading or unloading passengers, when such stopping does not interfere with any bus, livery vehicle or taxicab waiting to enter or about to enter such zone. All such vehicles when parking or stopping shall be parallel and adjacent to the curb. (M.C.S. Ord. No. 3816, § 1, 6-6-68.)

Mr. Aguilar is correct in his contention that the law governing traffic in a bus stop, while restrictive as to stopping, standing and parking, does not prohibit traveling in such areas for the purpose of making a turn.

Nevertheless, there is sufficient evidence in the record to support the finding that Mr. Aguilar did not overcome the presumption of negligence against him. The testimony of the bus driver, as well as the fact that the right rear wheel of the bus was involved in the accident, indicate that the bus was well into its turn when the collision occurred. Thus, had Mr. Aguilar maintained a proper lookout, he would or should have noticed the bus in time to avoid a collision. Furthermore, Mr. Aguilar did not take any defensive action to avoid the accident, such as sounding his horn, stopping or backing up. According to Mr. Aguilar’s testimony, the front ends of the bus and cab were aligned prior to the making of the turn by the bus, and he should have carried out his turn prior to the bus.

Thus we hold that Mr. Aguilar failed to exculpate himself from negligence proximately causing the accident.

Accordingly, we hold that the trial court did not err in finding both drivers concurrently negligent.

QUANTUM

For several years prior to the accident, plaintiff had suffered from a degenerative spinal disease. Dr. Aiken, plaintiff’s employer who examined plaintiff following the accident, stated at trial that the accident produced a cervical disc injury with pinched nerve involvement or radiculitis in the right upper extremity, causing pain and weakness in the hand. Additionally, he found probable herniation of the lumbosacral disc on the right side with sciatic pain going down the right leg. He related that, as a result of the injury to her back, plaintiff’s work had been impaired and that she had to be assisted by her fellow employees in performing certain tasks. He felt that she was a probable candidate for surgery and referred her to Dr. Henry La Rocca, an expert in orthopedic surgery.

Dr. La Rocca had treated plaintiff from June, 1973 through May, 1976 for neck and back problems which he diagnosed as degenerative arthritis of the spine, both of the back and lower back. He determined, based on the history related to him by the patient and his findings pursuant to a physical examination and x-rays of the patient, that the trauma sustained by her in the accident aggravated her pre-existing condition and caused it to be symptomatic. Dr. La Rocca stated that although he would not have recommended surgery prior to the accident, he presently recommends it. He estimated that plaintiff is now 25% disabled, but that after the indicated surgery, she could expect, at best, to remain 10% disabled. The cost of the surgery, he testified, would be $7,000.

Dr. David Jarrod, a neurosurgeon, examined plaintiff one week after the accident. According to his testimony, plaintiff is probably afflicted with a herniated cervical disc, the surgical treatment of which would cost approximately $7,450.00. He testified that plaintiff’s condition was stable prior to the accident on February 1, 1980, but became destabilized and symptomatic thereafter.

Dr. James Williams, an expert in the field of orthopedic surgery, examined plaintiff at the request of NOPSI. On direct examination, he testified that Ms. Spears showed evidence of degenerative disc disease or spondylosis in the cervical portion of the spine. In his opinion, it was a condition that developed prior to, and existed at the time of the accident.

He stated that he failed to find any objective evidence of residual injury or orthopedic disability from the physical or x-ray examination of plaintiff’s lower back. The accident, he stated, had no effect on her pre-existing condition.

However, when asked on cross-examination if it was reasonable to conclude that the trauma, which Mrs. Spears sustained in her accident, was the most probable cause of the pre-existing degenerative disc disease in the cervical area becoming symptomatic, he replied in the affirmative.

The trial court accepted the testimony and opinions of Ms. Spears’ treating physicians, and gave it more weight than the testimony of Dr. Williams who only examined the plaintiff for purposes of trial. We find no error in his conclusions.

On the basis of the foregoing testimony, the trial court awarded plaintiff $30,000 in general damages, $467 for past medical expenses, and $7,000 for the anticipated surgery, a total of $37,467.

In appraising the damage awards furnished by trial courts, appellate courts in Louisiana must adhere to a standard which grants “much discretion” to the trial judge. LSA-C.C. article 1934(3). Reck v. Stevens, 373 So.2d 498 (La.1979). The Louisiana Supreme Court, in Coco v. Winston Industries, Inc., 341 So.2d 332, 335 (La.1976) declared:

“We do re-emphasize, however, that before a Court of Appeal can disturb an award made by a trial court that the record must clearly reveal that the trier of fact abused its discretion in making the award. Anderson v. Welding Testing Laboratory, Inc. [304 So.2d 351 (La. 1974)], supra; Bitoun v. Landry [302 So.2d 278 (La.1974) ], supra; Fox v. State Farm Mutual Automobile Ins. Co. [288 So.2d 42 (La.1973)], supra; Walker v. Champion [288 So.2d 44 (La.1973) ], supra. Only after making the finding that the court record supports that the lower court abused its discretion can the appellate court disturb the award, and then only to the extent of lowering it (or raising it) to the highest (or lowest) point which is reasonably within the discretion afforded the court. Bitoun v. Landry, supra; Spillers v. Montgomery Ward & Company, Inc. [294 So.2d 803 (La.1974)], supra. It is never appropriate for a Court of Appeal, having found that the trial court has abused its discretion, simply to decide what it considers an appropriate award on the basis of the evidence.”

Counsel for defendants do not succeed in showing that the trial court abused its discretion in its total award of $37,467. The cases cited by them are either irrelevant or involve factual circumstances dissimilar to the case before us.

On the other hand, plaintiff has failed to demonstrate that the trial court abused its discretion in awarding her an inadequate amount of damages.

Accordingly, for the reasons discussed herein, we affirm the judgment of the trial court, all costs to be borne by appellants.

AFFIRMED.


author: AUGUSTINE, Judge.

text:
    STATE of Louisiana v. Kenneth HUGHES.
    No. KA-0315.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Writ Denied Oct. 17,1983.

      Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for plaintiff-appellant.
    Harry F. Connick, Dist. Atty. for the Parish of Orleans, Mary Charlotte McMul-lan, Asst. Dist. Atty., for the Parish of Orleans, New Orleans, for plaintiff-appel-lee.
    Before REDMANN, AUGUSTINE and BYRNES, JJ.
   AUGUSTINE, Judge.

Kenneth Hughes was indicted by an Orleans Parish grand jury on one count of aggravated rape, a violation of La.R.S. 14:42, and two counts of aggravated crime against nature, violations of La.R.S. 14:89.1. After two days of trial by a twelve member jury, the defendant was found guilty of aggravated rape and guilty of one count of aggravated crime against nature. He was sentenced to life in prison at hard labor, without benefit of parole for the offense of aggravated rape and fifteen years at hard labor, without benefit of parole for the offense of aggravated crime against nature, this sentence to run consecutively to the first. The defendant now appeals his conviction and sentence alleging two assignments of error.

Assignment of Error No. 1

The defendant alleges that the trial court erred in denying him access to the state’s information on prospective jurors’ prior voting records and criminal arrests and convictions.

To obtain voting records held by the prosecution, a defendant must show that the records are necessary to prevent undue prejudice, hardship or injustice. State v. Wright, 344 So.2d 1014 (La.1977). In order to make such a showing however, he is required to demonstrate that he cannot practicably obtain the information from other sources and that the State intended to use it in selecting the jury. State v. Welch, 368 So.2d 965 (La.1979) and cases cited therein. The same standard has been applied to those cases in which the defendant sought information on jurors’ criminal records. State v. Singleton, 352 So.2d 191 (La.1977).

The defendant relies on the Supreme Court’s statement in State v. Holmes, 347 So.2d 221 (La.1977) which said that it would be impossible for various defense attorneys who practice in Criminal District Court to set up a system similar to the comprehensive procedure currently used in the district attorney’s office. Defendant interpreted this statement to mean that defendants are now not required to prove that they cannot practicably obtain information on voting records and on prior criminal arrests and convictions. Holmes expressly held that “since voir dire had not yet been conducted, [the] defendant’s claims based on fundamental fairness and inability to obtain the information through other means are premature.” 347 So.2d at 223-24. The entire thrust of the Holmes opinion was to emphasize that the laws and jurisprudence of our state have afforded defendants wide latitude to question jurors during voir dire in order to exercise peremptory challenges intelligently. In the present case, the defendant did not attempt to question the jurors prior to raising his claim.

Defense counsel alleges that to question the jurors on their prior voting records and criminal records would alienate them from his client thereby preventing the defendant from being tried by an impartial jury. Holmes requires that the defendant be permitted to frame his questions in such a manner as to prevent the jurors from becoming defensive or hostile towards the defendant. The defense counsel made a tactical decision not to question the jurors in this area because he feared his client would be prejudiced. However, Holmes requires that voir dire be used as a vehicle to obtain this type of information. Until defense counsel actually attempts to question the jurors and until he actually finds them to be alienated towards his client, his claim is premature.

Since the voir dire, selection of the jury and the trial have all occurred, the defense counsel can not exercise his right. He must now show that by not obtaining the information on the jurors he was actually prejudiced. There is no showing that the defense was actually prejudiced by not having the information. The trial judge was correct in denying the motion.

Assignment of Error No. 2

The defendant’s second assignment of error charges that the evidence presented at trial was insufficient to support the conviction for aggravated rape. The defendant asserts that the state failed to prove an essential element of the crime, namely sexual intercourse with the victim.

Rape is defined by L.S.A.-R.S. 14:41 as:

... the act of anal or vaginal sexual intercourse with a male or female person who is not the spouse of the offender, committed without the person’s lawful consent.
Emmission is not necessary; and any sexual penetration, vaginal or anal, however slight is sufficient to complete the crime.

When a conviction is challenged based on sufficiency of the evidence, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Johnson, 404 So.2d 239 (La.1981). The question in the case at bar is whether there was sufficient evidence to show that any penetration was made by the penis rather than by the defendant’s hands or by a vibrator.

The facts elicited at trial were contained in the testimony of the doctor who examined the victim, the medical technologist and the victim herself.

Dr. Carey Allison testified that he examined the victim and found her development progressing into the very early stages of puberty. The examination revealed redness in the area of the victim’s genitals which could have occurred from friction, irritation or prolonged pressure, but the redness could not have occurred from a hit or a blow to the vaginal area. The hymenal ring of the vagina showed some thinning with small, healed lacerations to the front and on the left side. According to the doctor, it takes approximately 7-10 days for a laceration to heal and therefore the healed lacerations he observed on the victim would have occurred at least that length of time prior to the examination. According to the doctor’s report, said incident occurred nine days prior to his examination. Allison testified that the thinning in the hymenal ring would be consistent with an attempt to insert a penis, and that there could be a slight penetration without any tearing of the hymen.

Specimens were obtained by the doctor and sent to the coroner’s office to be tested for seminal fluid and spermatazoa. The medical technologist, Patricia Daniels, testified that the results of the tests were negative and that if the individual had bathed prior to obtaining the specimens, then the seminal fluid, if present, could be washed away.

The victim testified that the defendant, a neighbor, acted as baby sitter for the victim and her brother on several occasions. Sometimes it was convenient for the children to spend the night. The victim would sleep in one bedroom, the defendant in the other bedroom and the victim’s brother slept on the sofa in the living room.

On three separate occasions, the defendant made sexual advances toward the victim. The first incident occurred approximately two weeks before she was examined at the hospital. During this incident the defendant undressed her and fondled her breasts and genitals. In addition, sometimes used a vibrator which he rubbed over her body and private parts. At no time, victim testified, did defendant attempt to insert it into her vagina. The third incident occurred a few days after the alleged rape during which the defendant again fondled the victim and inserted his finger into her vagina.

The second incident led to the present charge of aggravated rape. The defendant took the victim to his dark bedroom and placed her on the bed. She felt something press against her vagina but could not or did not look to see what it was. The victim testified that although she did not see the defendant’s hands, she could feel his finger(s) inside of her. She also described his penis and testified that she could feel the defendant attempt to sexually penetrate her, at which time she pushed him away. Mr. Hughes then attempted to have anal intercourse with her but was unable to penetrate. At this point, the defendant poured a liquid on her and told her this would help him to enter her anally. She complained that the liquid gave her a stinging sensation and went to wash it off, cleansing her entire genital area.

The defendant’s main contention on appeal is that the victim is not capable of distinguishing between a vibrator (or his fingers) and his penis, and that her testimony does not therefore prove sexual intercourse. The victim was questioned specifically with reference to the rape itself. She testified that she knew the defendant used his penis (as opposed to a finger or vibrator) because she could feel it and because she could see it after her eyes became accustomed to the dark. When first called by the state, the victim raised a question by defense counsel as to whether he penetrated her. However, on rebuttal, the victim clarified her testimony by saying that his penis was erect when he tried to insert it into her and that the only reason the defendant did not fully penetrate her was because his penis did not “fit.” She then explained to the jury that his penis did not become flaccid until he put the liquid on himself.

In reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that, beyond a reasonable doubt, the defendant had engaged in sexual intercourse with the victim within the meaning of the statute. The statute considers any penetration however slight sufficient to complete the crime. By this appeal, Hughes attacks the credibility of the victim’s testimony on the element of sexual intercourse. The question of the credibility of the witnesses is within the sound discretion of the trier of fact. State v. Klar, 400 So.2d 610 (La.1981). We will not invade the province of the jury. There is sufficient evidence in the record on which any rational trier of fact could conclude that the state proved its case.

For the reasons assigned, the convictions and sentences are hereby affirmed.

AFFIRMED.

      . The defendant was charged with aggravated rape because L.S.A.-R.S. 14:42 defines one element of aggravated rape as the rape of a victim under the age of twelve.


text:
    STATE of Louisiana v. Ronald LaPORTE.
    No. KA-0340.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Paul A. Bonin and Carla A. Failla, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Crim. Div., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Before SCHOTT, AUGUSTINE and CI-ACCIO, JJ.
   AUGUSTINE, Judge.

This is an appeal by Ronald Laporte on his conviction of a theft of a riding lawnmower valued at $1,090. He was sentenced to serve two years at hard labor. Laporte appeals on the ground that there was no evidence presented which would support the conviction of a crime occurring on March 9, 1981. After reviewing the record we agree and therefore reverse his conviction and sentence.

Ronald Laporte was charged by bill of information for the theft of a riding lawnmower valued at $1,090 from Joe’s Bicycle and Lawnmower Shop. The bill of information states that the offense occurred on March 10, 1981 at 10:00 a.m. Lyle Mcln-tire, the owner of Joe’s Bicycle and Lawnmower, testified at the preliminary hearing and at the trial that on March 10, 1981 he received a check dated that same day and signed by Ronald Laporte using the fictitious name of Robert Rainey. Further, Mr. Mclntire testified that it was about 4:45 p.m. when Mr. Laporte entered the store to purchase the lawnmower. During the trial, when there was a question as to the admissibility of the testimony of alibi witnesses, both the state and counsel for the defense agreed that the date of the offense was March 10, 1981.

The defendant produced alibi witnesses who testified that on the date charged, defendant was playing cards at the Rubiccos’ house from 3:00 p.m. until after midnight. If believed, this testimony required acquittal. The trial judge in her reasons for judgment said, “The Court has no doubt that on Tuesday, March tenth the defendant played cards and was in the company of his friends. Equally, the Court has no doubt that on the evening preceding March ninth, approximately 5:00 p.m., 1981, the defendant defrauded Joe’s Bicycle Shop by theft.” It is significant to note that the only occasions on which March 9 was mentioned was upon questions initiated by the trial judge.

The state did not seek to prove a crime on March 9, 1981. Had the state produced evidence of a crime on that date but inadvertently stated in the bill of information that the crime occurred on March 10, 1981, the state could have amended the bill of information to conform with the proof adduced at trial, with a continuance granted to the defendant to prevent surprise or prejudice. State v. Pickett, 261 La. 237, 259 So.2d 307 (La.1972); La.C.Cr.P. art. 468 and comments thereto. However, all of the evidence refers to March 10, 1981 as the date of the offense.

Serious questions of deprivation of due process come to mind when an accused is given the date of an offense, prepares a defense accordingly, and his alibi is accepted by the trial court only to learn that he has been convicted because the trial judge believes the offense occurred on another date. The trial court therefore acquitted the defendant of the crime occurring on March 10, 1981 evidenced by the fact that she believed the defendant’s alibi.

The standard of review of sufficiency of the evidence under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), and State v. Fuller, 414 So.2d 306 (La.1982) is whether a rational trier of fact, accepting the facts in a light most favorable to the prosecution, could have found the defendant guilty of the crime charged beyond a reasonable doubt. In the present case there is absolutely no evidence upon which to base the conviction.

Since there is no evidence which would support a conviction on a crime occurring on March 9,1981, the judgment of the trial court is hereby reversed.

REVERSED.


text:
    Bobby J. NUNEZ v. Gladys Nunez, Wife of/and Kenneth C. NUNEZ.
    No. CA-0405.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    James W. Brodtmann, Chalmette, for plaintiff-appellee.

      Anthony A. Fernandez, Jr., Chalmette, for defendants-appellants.
    Before AUGUSTINE, BYRNES, and WILLIAMS, JJ.
   AUGUSTINE, Judge.

This is the second appeal in this case which stems from a judgment in which the trial court held that the defendants, purchasers of certain property located in St. Bernard Parish, failed to prove the payment of the agreed upon cash price of $6,000 to the vendor.

This suit was initiated by Bobby Nunez to rescind the sale of a tract of land and a residence to Kenneth and Gladys Nunez. The suit was based on allegations that Kenneth and Gladys threatened and coerced Bobby to sell the house and land to them and thereafter, failed to pay him the purchase price. The plaintiff lived in the house located on the St. Bernard property prior to 1965. In the same year, the house in which the defendants (the brother in law and sister of Bobby) lived was destroyed by Hurricane Betsy. Gladys and Kenneth moved into plaintiff’s residence in St. Bernard Parish approximately one year later. Bobby then moved into a trailer located on the same tract of land. Gladys and Bobby agreed that he would sell the property to Gladys at some undetermined point in the future. In the meantime, the defendants paid a nominal amount of rent and repaired some of the damage done by Hurricane Betsy.

In 1976, Bobby wanted to purchase some other land, so he approached the defendants with an offer to sell the land and house for $6,000. But since Gladys was apprehensive about getting loan approval for the entire purchase price, Bobby permitted Gladys and Kenneth to devise a suitable plan and the act of sale was drafted by their attorney. The act of sale recited the consideration of $14,000 which covered the amount of rent and repairs during the ten years Gladys and Kenneth lived on the property, plus $6,000 in cash. However, Bobby, Kenneth, and Gladys each testified that no money changed hands at the act of sale and that each signed the authentic act separately. The witnesses to the authentic act corroborated their testimony.

Gladys and Kenneth claim to have paid plaintiff $6,000 in $100 bills in August of 1976. Allegedly, the defendant obtained a personal loan from Joseph Lloyd Kanner and gave the money to Bobby prior to the act of sale. However, Mr. Kanner did not testify nor did anyone who might have witnessed the cash transaction. Kenneth stated that he gave the money to plaintiff while Gladys was present and that Bobby did not give them a receipt. Bobby, however, declared that no money was ever given to him although he had made several requests for payment. When he finally demanded to be paid, he said, the defendants responded by beating him and evicting him from the premises.

The court noted that the defendants did not employ the affirmative defense of payment, which must be specifically pleaded, but instead gave general denials to the allegations contained in plaintiff’s petition. The special defense of payment would have placed upon the defendants the burden of proving payment. The trial court found that there was a verbal agreement to sell the property, manifested by the act of sale, but the testimony on the payment of the purchase price was conflicting and unclear. The trial court was of the opinion that Mr. Kanner’s testimony would have been conclusive on this issue. The trial court found that since Mr. Kanner was not present to contradict the testimony of the defendants, it was more probable that the defendants paid Bobby $6,000, and thus the plaintiff failed to carry his burden of proving by a preponderance of the evidence that the money was not paid.

The plaintiff thereafter appealed the judgment alleging that the trial court misapplied the burden of proof. He asserted that the burden of proving payment rested on the defendants since they sought to exonerate themselves by extinction of the obligation. This court agreed and held that “once the purchasers conceded that the receipt in their deed was untrue and invalid (and that the deed did not reflect the true price) and that they did not pay any of the price at the time of the cash deed’s execution, it became the purchaser’s burden to show that they had, nevertheless, paid the price in fact agreed upon.” 396 So.2d 415 at 416. This court stated that the evidence does not clearly establish whether or not payment was made and since the trial court had also expressed this doubt and would have found Mr. Kanner’s testimony conclusive, the case was remanded specifically to allow Mr. Kanner to testify and to admit any other evidence on payment of the purchase price.

On remand, the defendants once again testified that they paid Bobby $6,000 in $100 bills in August 1976. Terry Nunez (brother to Gladys and Bobby) testified that one morning he was in the kitchen with Gladys drinking coffee when Bobby came into the house. After brief salutations, Gladys left the room. When she returned she handed to Bobby a stack of dollar bills in $100 denominations. In return, Bobby gave Gladys a blue paper which, to Terry, appeared to be a title or deed. The testimony of Terry Nunez directly contradicts Kenneth’s testimony at the first trial wherein Kenneth stated that the only persons present to witness the cash exchange were himself, Gladys and Bobby. There were further contradictions: according to Terry, this transaction occurred in February 1976 (give or take three months) during trapping season. Mrs. Nunez, however, insists that it occurred in late August or early September. The testimony of the others failed to shed any light on the issue of whether or not the money changed hands, and contrary to the suggestion made by this court, Mr. Kanner again did not testify.

The trial court rendered judgment in favor of the plaintiff, reasoning that since this court had placed the burden on the defendants to produce proof of payment of the $6,000 and to produce the testimony of Joseph Kanner, the defendant’s failure to produce such evidence should result in a verdict for the plaintiff.

The defendants filed a motion for a new trial alleging that Mr. Kanner was now available and able to testify that he lent the money to the Nunezes. The motion was denied. Defendants then instituted this appeal claiming error by the trial judge in not granting a new trial on the grounds that the witness was currently available. In addition, the defendants allege that the trial court misinterpreted this court’s opinion in ruling that Mr. Kanner’s testimony would be required in order for the defendants to prevail.

We find no error in the judgment of the trial court and hereby affirm.

Mr. Kanner was not present to testify and no attempt was made to obtain his testimony. He was not subpoenaed at the second trial nor was a continuance of the trial sought for the purpose of securing his presence. At the first trial the defendants alleged that they borrowed $6,000 from Mr. Kanner for the purpose of paying Bobby. In its original judgment, the trial court said Mr. Kanner’s testimony would have been conclusive evidence on this issue. On appeal, this court gave the defendants another opportunity to present Mr. Kanner’s testimony. Since the defendants failed to subpoena Mr. Kanner or make any other attempts to secure his testimony, we apply the well-known rule that the unexplained failure of a party to call a witness who possesses peculiar knowledge of material facts pertinent to the resolution of the litigation entitles the opposing party to the presumption that the witness s testimony would be unfavorable. Morgan v. Mattlack, Inc., 366 So.2d 1071 (La.App. 1st Cir. 1979), writ denied, 369 So.2d 1352.

The judgment in favor of the plaintiff following remand was based on the fact that absolutely no additional evidence concerning payment of the $6,000 was presented. The trial court had the benefit of viewing all the witnesses and listening to the testimony at both trials, and resolved issues of credibility in favor of the plaintiff. The court determined that the defendants had not met their burden of proving payment. We cannot find that the judgment of the trial court was manifestly erroneous.

For the reasons stated, the judgment of the trial court is affirmed.

AFFIRMED.

      . According to the jurisprudence of this state set forth in Rittiner v. Sinclair, 374 So.2d 680 (La.App. 4th Cir.1978), on rehearing, 374 So.2d 684, all the law requires for the validity of an authentic act is that the notary and witnesses be present when each contracting party signs the act, and that the notary and witnesses sign the act, although not necessarily at the time that any party signs it. It is not invalid because the parties did not execute the act in the presence of each other.

      . There is good reason to question whether the paper allegedly given to Gladys by Bobby was in fact title to the property, for no such document was introduced into the record.


text:
    Leonard HILLARD v. The HOUSING AUTHORITY OF NEW ORLEANS.
    No. CA-0578.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Steven M. Koenig of Heisler & Wysoeki, New Orleans, for plaintiff-appellant.
    Frederick F. Olsen, Jr., O’Keefe, O’Keefe & Berrigan, New Orleans, for defendant-appellee.
    Before SCHOTT, AUGUSTINE, and CI-ACCIO, JJ.
   AUGUSTINE, Judge.

This is an appeal of a judgment of the District Court sustaining the Declinatory Exception of Lack of Subject Matter Jurisdiction filed by the defendant-appellee, Housing Authority of New Orleans (HANO), and dismissing plaintiff-appellant Hillard’s suit for damages based on wrongful discharge from employment due to having asserted a workmen’s compensation claim.

The appellant was employed by HANO in a classified civil service position. He had been injured in the course and scope of his employment and he was later terminated. Hillard filed suit in Civil District Court alleging that he was discharged, contrary to the provisions of La.R.S. 23:1361 , for having asserted a claim under the workmen’s compensation laws of Louisiana. HANO filed an exception of Lack of Subject Matter Jurisdiction alleging that the Civil Service Commission was vested with exclusive jurisdiction to decide all removal cases. The court sustained the exception after a hearing and Hillard filed this appeal.

The appellant contends that the district court erred in upholding the exception and that the court’s ruling violates the appellant’s rights to due process and equal protection of the law. We hold that the granting of the exception was proper and not in violation of the appellant’s rights. We affirm.

The Louisiana Constitution grants to the Civil Service Commission very broad powers for the administration and regulation of the classified service, including the power to adopt rules for regulating employment, promotion, demotion, suspension, reduction in pay, removal, certification, qualification, employment conditions and other personnel matters and transactions. 1974 La.Const. Art. 10 § 10(A)(1). Article 10 § 10(B) provides that each commission may investigate violations of its rules, statutes or ordinances adopted pursuant to Art. 10 § 10(A)(1). In addition, Art. 10 § 12 gives the commission exclusive power and authority to hear and decide all removal and disciplinary cases.

Hillard argues that he is entitled to damages under the provisions of La.R.S. 23:1361 of Louisiana’s workmen’s compensation laws because he was unlawfully discharged based upon his assertion of a workmen’s compensation claim. Further, appellant argues that the authority or jurisdiction of the Civil Service Commission would not be impinged upon if this suit, under La.R.S. 23:1361, were allowed to proceed. We disagree.

The present case is similar to Peete v. Scheib, 156 So.2d 280 (La.App. 4th Cir.1963), writ refused, 245 La. 90, 157 So.2d 233 (1963), in which Peete, a civil service employee was illegally suspended and instituted a mandamus suit endeavoring to obtain an order directing his employer, HANO, to pay him lost wages. HANO pleaded the exceptions of no right or ho cause of action, which exceptions were overruled. Trial proceeded on the merits and Peeté was awarded a sum for lost wages. On appeal to this court, HANO reiterated its exceptions and this court maintained the exceptions, stating:

“We are convinced that it was incumbent upon the plaintiff to exhaust his administrative remedies before he was entitled to a hearing in either a district or an appellate court.
“While it is true that the Civil Service Commission is powerless to render a money judgment, an employee endeavoring to recover lost wages emanating from an illegal suspension must necessarily obtain a Commission ruling to the effect that this suspension was illegal before he can bring a mandamus action against his employer to compel payment of lost wages. If the district court was permitted to review the legality of the suspension then it would, in effect, possess concurrent jurisdiction with the Commission, which the Constitution clearly never contemplated nor intended.”

In 1974, several years after the decision in Peete, a new constitution was adopted. The 1974 Constitution still vests the Civil Service Commission with exclusive jurisdiction over removal and disciplinary cases.

Following Peete, we therefore hold that the appellant must first exhaust his remedies under the provisions of the Louisiana Constitution by successfully appealing his dismissal to the Civil Service Commission before bringing an action for damages in Civil District Court. The district court judge was correct in sustaining HANO’s declinatory exception and dismissing the plaintiff’s suit.

The judgment of the district court is hereby affirmed.

AFFIRMED.

      . L.S.A.-R.S. 23:1361 provides in relevant parts:
      B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
      C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with a reasonable attorney’s fee.


author: WILLIAMS, Judge.

text:
    Harold FERRER and Audubon Insurance Company v. John GILBERT and New Orleans Public Belt Railroad. AUDUBON INSURANCE COMPANY and Harold Ferrer v. John GILBERT and New Orleans Public Belt Railroad.
    Nos. CA-0490, CA-0491.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 8, 1983.
    Don C. Gardner, Middleberg & Riddle, Metairie, for plaintiff-appellee.
    Dan R. Dorsey, Terry M. Boudreaux, River Ridge, for plaintiffs-appellees.
    Samuel 0. Buckley, III, Michael A. Cher-nekoff, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellants.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a judgment in favor of plaintiffs for injuries he suffered in a collision between an automobile and a railroad vehicle called a tamping machine. Plaintiff, Harold Ferrer, was the driver of the automobile, and defendants are the New Orleans Public Belt Railroad [“NOPBR”], and its driver, John Gilbert. Plaintiffs insurance company, Audubon Insurance, also sued NOPBR for amounts it advanced plaintiff for property damage to his automobile. Plaintiff’s and Audubon’s petitions for damages were consolidated for trial. The trial court entered a judgment for plaintiff in the amount of $8,500.00 for personal injuries, pain and suffering, $624.00 for plaintiff’s special medical damages, and $687.00 for property damages to plaintiff’s automobile.

Plaintiff essentially alleged NOPBR failed to maintain proper warning lights at the intersection and that the lights were defective at the time of the accident. The trial court found that the railroad warning light signals were not operating properly at the time of the accident; that the warning signals were dangerously defective on the date of the accident; that defendant driver was also negligent in causing the accident; and that plaintiff was not contributorily negligent. From this judgment, defendant suspensively appealed alleging no liability.

The facts of this case as determined by the trial court are simple. The accident occurred at the intersection of France and Chartres Streets in New Orleans. Plaintiff was driving his automobile southbound toward the Mississippi River on France Street, preparing to make a right turn onto Chartres Street when he was struck by defendant’s tamping machine. The record indicates that the railroad tracks enter the intersection between France and Chartres Streets on a curve in a northeasterly direction, and it appears that plaintiff had reached the intersection first and had stopped and looked to his left and then to his right. Since plaintiff could not see clearly in both directions, he then inched forward to see if there were any vehicles approaching from either direction. The railroad crossing warning lights and bell were not operating at the time plaintiff approached' and entered the intersection. After plaintiff inched forward, he stopped again, looked to his left and before he could look to his right, his automobile was struck at the front left corner by defendant’s tamping machine. The tamping machine was unable to stop in time to avoid hitting plaintiff’s automobile. The tamping machine was not equipped with its own lights, horn, whistle or bell with which to signal its approach.

Plaintiff injured his lower back and received other bumps and bruises elsewhere on his body. He was in significant pain for approximately four to eight months after the date of the accident. His medical care involved approximately six visits to the doctor, in addition to several physical therapy treatments over a period of four months. The defendant driver was not injured as a result of this collision.

There were three eye-witnesses to the accident other than the parties themselves. Plaintiff’s two eye-witnesses were located in the block of the accident and stated unequivocally that plaintiff was stopped and that the warning lights were not operating at the time of the accident. Plaintiff’s witnesses testified that they never saw defendant’s eye-witnesses, nor another witness identified as a railroad employee repairman. The defendant’s eye-witness was a female security guard who occupied a guardhouse in the train yard near the scene of the accident. She testified that she was about 30 feet away from the accident when it occurred. She did not, however, come forward at the time of the accident to give her version of the accident for the police investigation which was conducted immediately afterwards. Defendant’s other witness was an “expert” for defendant who was merely a track warning light repairman. He was not, however, offered nor qualified as an expert witness. He testified that he was not at the scene of the accident at the time it occurred, nor after, and only stated his opinion of what would have happened when the warning lights were operating, what triggered them, and what would happen if they malfunctioned. He testified that the warning system was a “failsafe” system and was designed to operate even though the lights might lose their regular power source, continuing to function on battery power. The tamping machine driver’s testimony was exactly opposite that of the plaintiff, and although the female railroad security guard also testified and corroborated the railroad driver’s testimony, this version was apparently given little weight by the trial court.

This case presents an example of a determination made on the basis of the credibility of the witnesses. The trial court made a credibility determination based upon the testimony of all witnesses presented at trial. When there is testimony in the court below, reasonable evaluations of credibility and inferences of fact should not be disturbed upon review even though the appellate court may feel its own evaluations and inferences are as reasonable. Canter v. Koehring Co., 283 So.2d 716, 724 (La.1973); Abadie v. Morales, 391 So.2d 974 (La.App. 4th Cir.1980).

Based on the facts as determined by the trial court, the trial court applied the law correctly. The cases cited by defendant that place a duty on a motorist to stop at a railroad crossing are easily distinguishable from this case. Most involved train/automobile collisions occurring when either warning lights and bells were present and operating or, when railroad crossing stop signs were present in addition to the headlights, whistles and horns on the train itself. In all cases, the headlight on the train was burning and the whistles, horns and bells were clearly sounded in advance to warn motorists of the approaching train. See, e.g. Wheat v. New Orleans and Northeastern Railroad Company, 245 La. 1099, 163 So.2d 65 (1964); Hymel v. Texas and New Orleans Railroad Company, 145 So.2d 138 (La.App. 4th Cir.1962). In the case now before us, the plaintiff stopped before he entered the intersection although the railroad crossing warning lights were not operating. It was not manifestly erroneous, therefore, for the trial court to find that plaintiff had discharged his duty to stop and look. We also find defendant Gilbert, as the driver of the tamping machine, negligent. He was aware that the tracks crossed the intersection at an angle, thus exposing plaintiff to danger. The first duty of those who operate engines or motor vehicles is to keep a sharp lookout ahead to discover the presence of those who might be in danger. Because Gilbert failed to perform that duty, his negligence was the proximate cause of the injury. See Russo v. Texas and Pacific Railway Company, 189 La. 1042, 181 So. 485 (La.1938).

The trial court found ample evidence of defendant’s negligence and, therefore, did not err in its determination that plaintiff was entitled to recover. We cannot conclude that the judgment of the trial court was manifestly erroneous.

We do not have to resolve the amount of damages recoverable by plaintiff’s insurance company since the parties agreed, during oral argument, that defendant would be liable to Audubon for the $587.00 for their out-of-pocket expenses.

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

AFFIRMED.

      . Plaintiffs insurance company, Audubon Insurance, was subrogated to plaintiffs claim for damages to his automobile since the company had already paid to fix plaintiff’s car less the first $100.00 which was plaintiffs deductible.


author: GARRISON, Judge.

text:
    Janice Kinchen, Wife of Randolph M. HOWES v. Randolph M. HOWES.
    No. CA 0485.
    Court of Appeal of Louisiana, Fourth Circuit.
    July 18, 1983.
    Writ Denied Oct. 28,1983.

      Curtis M. Baham, Jr. and Bruce C. Bennett, Baham, Anderson, & Bennett, Hammond, for plaintiff-appellant.
    Harry R. Cabral, Jr. and H. Craig Cabral, Cabral & Cabral, Metairie, for defendant-appellee.
    Before GARRISON, BYRNES and WILLIAMS, JJ.
   GARRISON, Judge.

This is an appeal from a judgment of the district court dismissing a rule to traverse an inventory for failure to include U.S. Patent Number 4,072,146 as an asset, finding that the patent is the separate and paraphernal property of the defendant and ordering the defendant to include the sale price of the patent in the community property partition. From that judgment, which we reverse, plaintiff appeals.

The operative dates are as follows:

1. August 31,1964 Mr. and Mrs. Howes marry
2. February 7,1978 Patent issued by U.S. Patent Office
3. June 20,1978 Dr. Howes “sells” patent to Gerald Byrd
4. October 26,1978 Mrs. Howes files suit for divorce
5. (Before 1/3/79) Judgment of divorce rendered
6. January 3,1979 Byrd “sells” patent back to Howes
7. March 22,1982 Petition to partition community property filed
8. April 15,1982 Dr. Howes licenses patent to Arrow International, Inc.
9. April 20,1982 Mrs. Howes files rule to traverse for failure to list the patent in the descriptive list and prays for temporary restraining order to prevent alienation of patent
10. July 9,1982 Mrs. Howes petitions for declaratory judgment

On appeal, plaintiff raises two main specifications of error:

1. The trial judge erred in failing to find the “sale” was simulated.
2. The trial judge erred in failing to give effect to the presumption of community property.

Civil Code Article 2404 provides as follows:

“... But if it be proved that the husband had sold the common property, or otherwise disposed of the same by fraud, to injure his wife, she may have her action against the heirs of her husband, in support of her claim in one-half of the property, on her satisfactorily proving the fraud.”

It is well settled law that Article 2404 “gives to the defrauded wife an action against her husband in the event the community is dissolved by divorce or judicial separation.” Thigpen v. Thigpen, 231 La. 206, 91 So.2d 12, 19 (1956); Oliphint v. Oliphint, 219 La. 781, 54 So.2d 18 (1951).

In Thigpen, above, the Louisiana Supreme Court found intent to defraud on the basis of three factors:

1. The record left no doubt that there existed strong animosity and hostility between the spouses.
2. “Suspicious timing” in that the reputed “sale” occurred at a time when the relationship between husband and wife had deteriorated to such an extent that the court found that it was suspiciously timed, even though no petition for separation had yet been filed. “... make(s) the conclusion inescapable that it was his deliberate intent to injure his wife at a time when dissolution of the community estate was imminent.” (91 So.2d at 17) (Emphasis added).
3.The wife had no actual notice of the sale, although the sale was by authentic act and was timely registered.

In Hall v. Allred, 385 So.2d 593 (App. 3rd, 1980), intent to defraud the wife was found on the basis of two factors:

1. “Suspicious timing” in that a petition for divorce was filed in May of 1977, the parties reconciled in June of 1977, the sale occurred in July of 1977 and a second petition of divorce was filed in July of 1977.
2. The wife had no actual notice of the sale.

In the instant appeal, the following factors are present:

1. The animosity between the parties is well documented.
2. “Suspicious timing” exists in that the sale occurred “at a time when dissolution of the community ... was imminent.”
3. The wife had no actual notice of the sale.

Accordingly, we find that the sale was intended to defraud the wife.

The two essential elements of a Civil Code Article 2404 action are:

1. intent to reduce the wife’s community property interest and
2. actual injury therefrom.

Having addressed the first element, we now turn to the question of actual injury. Dr. Randolph Howes testified that he had been working on the invention for at least four years prior to the date of patent, or in 1974, clearly within the existence of the community. (TR. p. 97). Dr. Howes produced no evidence other than the “sale” to rebut the presumption of community property arising from Civil Code Article 2402. In short, he failed to carry his burden of proof.

The contract between Dr. Howes and Arrow International, Inc., is an agreement to “... make, have made, use, sell, and put into use Licensed Products under the Patent Rights” owned by Dr. and Mrs. Howes. Thus the contract is not a sale of the patent, but rather is a license for use. The term of the contract is tied into the expiration date of Dr. and Mrs. Howes’ patent.

When Dr. Howes entered into the licensing agreement on April 15, 1982, the contract provided for payment as follows:

“(a) An initial non refundable (sic) fee of $30,000 payable within 30 days of (April 15, 1982).
“(b) A running royalty throughout the term of this license agreement of 6% of Licenses’s Revenues, as hereinafter defined.
“(c) Yearly minimum royalties of $30,-000.”

In computing the amount of actual loss, the court looks to fair market value. Hall v. Allred, above. In the instant case, however, fair market value is apparent on the face of the record via the above quoted agreement. Accordingly, Mrs. Howes sustained a past actual loss of $15,000.00 as of May 16, 1982 (30 days + 1) plus running royalties in the amount of 3% per year for the term of the contract and yearly minimum royalties of $15,000.00.

For the reasons discussed, the judgment of the district court is reversed and we render judgment as follows:

IT IS ORDERED, ADJUDGED, AND DECREED that there be and hereby is judgment herein in favor of Janice Kinchen Howes and against Dr. Randolph Howes, declaring that Janice Kinchen Howes has a one-half undivided interest in a multiple-lumen catheter device known as the “Howes Venous Catheter Device” U.S. Patent Number 4072146 or any variation thereof as defined by Section 1(c) in License Agreement between Dr. Randolph Howes and Arrow International, Inc. dated April 15, 1982.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that a permanent injunction be and hereby is issued herein, restraining and prohibiting Arrow International, Inc. from making any further payments to Randolph M. Howes or to anyone designated by Randolph M. Howes to receive payments under the terms of the License Agreement concerning Patent Number 4072146, or any successor thereof, unless said payments are made jointly to Randolph M. Howes and Janice Kinchen.

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the inventory of community property be and hereby is amended to include the “Howes Venous Catheter Device” U.S. Patent Number 4072146 and that Randolph M. Howes be and hereby is ordered to provide to Janice Kinchen, as owner of a one-half undivided interest in the Patent, an accounting of any and all sums received in conjunction with U.S. Patent Number 4072146 which sums are to be included in the inventory of community property.

All costs to be borne by Dr. Randolph Howes.

REVERSED AND RENDERED.

      . In Hall, the court found “dual” intent — “... Hall was equally motivated by the desire to return the property to Allred, but he did so with the intent to injure his wife’s interest.” At 597.

      . Howes v. Howes, 388 So.2d 1182 (App. 4th, 1980):
      “The obvious bitterness between the parents promises continuing problems with the children being victims of their animosity. This misdirected effort and expense could better serve to provide the needed family environment and parental love which these youngsters deserve.” At 1186.

      . It is well settled that property acquired or “created” during the existence of the community is presumed to be community and that the burden of proof for declaring the property as separate lies on the party seeking to challenge the presumption. Thigpen, above, 91 So.2d, p. 23.