text:
    STATE of Louisiana, Appellee, v. Don Ray WALKER, Appellant.
    No. 16363-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 16, 1984.

      Jack Wright, Jr., Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., J. Carl Parkerson, Dist. Atty., Robert S. Kennedy, Jr., Asst. Dist. Atty., Attorneys for appel-lee.
    Before HALL, MARVIN and NORRIS, JJ.
   NORRIS, Judge.

Defendant, Don Ray Walker, appeals two consecutive sentences of six months imprisonment without hard labor after a jury conviction of two counts of simple battery in violation of La.R.S. 14:35 assigning as errors:

(1) The sentencing Judge enhanced the harshness of the sentence because the victims were police officers, without statutory authority and in violation of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States of America and Article I, Section 3 of the Louisiana Constitution of 1974; [and]
(2) The sentencing Judge failed to accord any weight to sections (3), (4), and (5) of [La.C.Cr.P. Art.] 894.1(b) which would mitígate harshness of the sentencing code.
[Bracketed material added.]

• For the reasons hereinafter set forth, we find no abuse of the sentencing choices of the sentencing judge and affirm.

On March 31, 1983, Sergeant Royce To-ney, Officer Calvin Woodall and Detective Robbie Freeman of the Metro Narcotics Unit were at the Backseat Lounge in Monroe, Louisiana. After their arrival, Toney was recognized by the defendant whom Toney had previously arrested and who began harassing Toney verbally. When the three officers attempted to leave the lounge, Toney was pushed outside and a fight ensued with one of the participants holding Toney while defendant struck To-ney about the head and face. When Woo-dall observed what was occurring, he intervened. Woodall grabbed defendant and pulled him off of Toney. Defendant resisted and Woodall grabbed defendant a second time punching him in the face. Defendant landed on the top of the hood of a vehicle where Woodall pinned him down. Thereafter, someone came up behind Woo-dall and grabbed him across the face as though attempting to gouge out his eyes. In an attempt to remove himself from his attacker’s grasp, Woodall leaned forward. Defendant then kicked him in the face causing Woodall to fall, hit his head, and lose consciousness. A third party observed defendant attempting to stomp Woodall in the head and pulled defendant away.

As a result of this altercation, Toney and Woodall suffered facial and head injuries requiring that they be taken to Glenwood Medical Center’s Emergency Room. To-ney’s injuries were in the facial area and around his eyes and he later consulted an opthamologist to determine the extent of his injuries when he continued to have trouble with his eyes. Woodall’s injuries rendered him unconscious for some period of time and were also primarily in the area of the face and head. Additionally, Woodall was bleeding profusely from the mouth and stitches were required.

Defendant was originally charged with two counts of second degree battery in violation of La.R.S. 14:34.1, tried by jury and convicted of two counts of simple battery. The sentencing judge imposed two consecutive six month sentences, the maximum term of incarceration which could have been imposed in this case.

In sentencing this defendant, the judge noted the defendant’s past history of criminal conduct, including numerous traffic offenses, two convictions of contempt of court, a conviction of misdemeanor theft after a plea bargain reducing an original charge of felony theft, a conviction of possession of marijuana and a conviction for failure to appear. Concerning the offenses for which the defendant was convicted after this trial, the sentencing judge stated that the involved offenses represented a serious, brazen and intentional attack on two police officers as a result of defendant’s desire to exact some form of revenge against Toney for his previous activities in connection with his employment regarding this defendant. The judge further noted the serious injuries which resulted to both officers, particularly Woodall. The judge, who heard all of the evidence during the trial, concluded that this defendant “set out” to cause serious harm to these police officers when he initiated his actions and that such harm was in fact caused. Stating that he could not condone such actions because to do so would undermine the efforts of the officers and would result in widespread demoralization within their ranks, he was of the opinion that because of the seriousness of these offenses that the sentences actually imposed, although maximum sentences of incarceration for the crimes convicted, were extremely lenient. While the trial judge noted that there were medical problems in the defendant’s family which involved the defendant, he concluded that these factors would not cause a term of imprisonment to create an excessive hardship for the defendant. As is evidenced by the statement of considerations filed in the record, the judge found no mitigating factors to be present.

On appeal, defendant does not expressly assert that these sentences are excessive but argues that it was improper for the trial judge to impose an enhanced penalty because the victims were police officers and that the judge failed to give appropriate weight to the mitigating factors enumerated in La.C.Cr.P. Art. 894.1. However, it is self evident that an attack on the judge’s sentencing reasons under La.C. Cr.P. Art. 894.1 is an implicit challenge to the excessiveness of the sentences imposed. State v. Day, 414 So.2d 349 (La. 1982).

Article I, § 20 of the Louisiana Constitution of 1974 prohibits the imposition by law of excessive punishment. Although a sentence is within statutory limits, it may violate a defendant’s constitutional right against excessive punishment and is subject to appellate review. State v. Sepulvado, 367 So.2d 762 (La.1979). In imposing sentence, a trial judge must comply with the mandatory requirements of La.C.Cr.P. Art. 894.1 and individualize the sentence by stating for the record the considerations taken into account and the factual bases therefor. State v. Jones, 381 So.2d 416 (La.1980). While the sentencing judge need not articulate every aggravating and mitigating circumstance outlined in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant [State v. Hammonds, 434 So.2d 452 (La.App.2d Cir.1983) ] because the sentencing guidelines of this article provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, supra.

In this case, while the sentencing judge articulated specific reasons for the sentence, he did not list every aggravating and mitigating circumstance under the applicable article. However, it is unnecessary that he list each aggravating and mitigating circumstance if the record reflects that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Vaughn, 378 So.2d 905 (La.1979).

While a sentence may be vacated and a case remanded for re-sentencing when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983). The reasons given by the sentencing judge in this case are sufficient unless they are without objective basis in the record. State v. Day, supra. From our review of this record, we conclude that these reasons are with record support.

While the sentences imposed were the maximum periods of incarceration for each crime and were imposed to run consecutively, they are supported by the record, defendant’s arguments to the contrary notwithstanding. First of all, striking a police officer is a serious offense. See State ex rel Bailey v. City of West Monroe, 418 So.2d 570 (La.1982). Furthermore, when an officer is attacked with the intent to exact some form of revenge for his having arrested the defendant in the past, the severity of the offense is considerably heightened. Defendant’s argument that the sentencing judge gave undue weight to the fact that the victims were police officers is simply without merit. In fact, what the judge actually did was to consider the underlying circumstances of the crime. To individualize a sentence, the judge must consider these underlying circumstances. La.C.Cr.P. Arts. 875(A)(1) and 894.1(A)(3); State v. Sepulvado, supra; State v. Day, supra. The sentencing judge in this case could not ignore the factual basis of the criminal acts and still individualize the sentences appropriately. Under the facts and circumstances of this case, the sentencing judge was justified in attaching great weight to the manner in which these criminal acts were committed, including the fact that the victims were police officers, and in concluding that these offenses were of the most egregious and blameworthy sort in their class. Additionally, it was not improper for the sentencing judge to take into account larger sociological concerns in imposing the sentences. State v. Moore, 419 So.2d 963 (La.1982).

Finally, defendant’s argument that the sentencing judge failed to adequately consider mitigating factors in imposing sentence on the count involving Woodall is equally without merit. Defendant’s argument is that because he did not know that Woodall was a police officer and that Woo-dall had interjected himself into the fight when he pulled the defendant off of Toney, that these were mitigating factors which should have been considered to militate in favor of a lesser sentence. Initially, in response to this argument, we note that the judge heard all of the evidence adduced concerning the altercation itself and was not limited to the portions of the record designated by defendant for our review. Obviously, the judge concluded that the defendant knew or had every reason to have known that Woodall was in fact a police officer. Furthermore, this argument overlooks the fact that in response to Woo-dall’s actions and while he was being held by another, defendant kicked Woodall in the head with his foot knocking him to the ground. After Woodall was on the ground and unconscious, defendant was in the process of attempting to stomp him in the head when pulled away by a third party. The brutality of the defendant’s response to Woodall’s actions was obviously and correctly considered by the sentencing judge to outweigh any factors which might weigh in favor of a lesser sentence because by no stretch of the imagination can kicking anyone in the head and attempting to stomp him while he is on the ground unconscious under the circumstances present here to be considered to be a justified, retaliatory blow.

While maximum sentences are reserved for the most blameworthy and egregious of offenders in a particular class [State v. Daranda, 398 So.2d 1053 (La.1981) ] and consecutive sentences for crimes arising from a single course of conduct require particular justification [State v. Messer, 408 So.2d 1354 (La.1982)], the sentencing judge’s reasons and the record justify this sentencing choice. The sentences are commensurate with, rather than grossly disproportionate to, the severity of the defendant’s offenses. The extended period of incarceration is not needless and purposeless but is imposed to negate the defendant’s opportunity to commit such crimes in the near future. The sentences are adequately particularized to this particular defendant in light of his particular crimes. They certainly do not shock our sense of justice. State v. McDermitt, 406 So.2d 195 (La.1981).

Accordingly, we conclude that the sentencing judge did not abuse his great discretion in imposing these sentences and they are affirmed.

CONVICTIONS AND SENTENCES AFFIRMED.


source: Caselaw Access Project

author: SEXTON, Judge.

license: Public Domain

text:
    Patricia TAYLOR, Plaintiff-Appellee, v. SECURITY INDUSTRIAL INSURANCE COMPANY, Defendant-Appellant.
    No. 16368-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Gahagan & Gahagan by Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Talbot, Sotile, Carmouche, Marchand & Marcello by Victor L. Marcello, Donaldson-ville, for defendant-appellant.
    Before PRICE, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

Plaintiff sued as beneficiary to collect the benefits allegedly due under a life insurance policy for the death of her husband, the insured. Plaintiff also sought statutory penalties and attorney’s fees. The trial court awarded judgment in plaintiff’s favor, granting plaintiff the benefits due under the policy, as well as statutory penalties and attorney’s fees. We affirm the trial court’s award of policy benefits, and vacate the trial court’s judgment insofar as it granted plaintiff statutory penalties and attorney’s fees.

Plaintiff in this cause is Patricia Taylor, a resident of Winn Parish. Ms. Taylor is the widow of Julius Taylor, and the beneficiary of an insurance policy which insured his life. Julius Taylor was the decedent whose life was insured, and the former husband of Patricia Taylor. Mr. Taylor died on October 12, 1982. Defendant in this cause is Security Industrial Insurance Company, the insurer that issued the policy insuring the life of Mr. Taylor.

Julius and Patricia Taylor were married on November 2, 1970. Although his employment record prior to 1979 was not discussed at trial, it appears that Mr. Taylor began working at a wood “mill sometime in 1979 or 1980, and thereafter worked there full time for two years. Mr. Taylor either quit or was laid off his job at the wood mill in March of 1982 for undetermined reasons. Mr. Taylor was admitted to Huey P. Long Memorial Hospital in Pineville from March 19, 1982 to March 22, 1982, and treated for an alcohol dependency. From the time of his hospital discharge in March until August of 1982, Mr. Taylor worked part-time at several endeavors. During this interim, Mr. Taylor sold Avon products, maintained a large garden located on his mother’s property, and did lawn work. In August, Mr. Taylor was hired as a laborer by Country Pride, a Natchitoches-based chicken processing plant. Mr. Taylor was required to work in a damp, cool atmosphere and contracted pneumonia in September. He missed two weeks of work. After recovering from this bout of pneumonia, Mr. Taylor was terminated by Country Pride.

Mr. Taylor was readmitted to Huey P. Long Memorial Hospital on October 10, 1982, suffering from a recurrence of pneumonia. He was subsequently diagnosed as suffering from a lung infection, which developed as a complication of his pneumonic condition. On October 12, a Swan-Ganz catheter was inserted into Mr. Taylor’s lungs in an apparent attempt to drain excess fluid from the lungs. However, Mr. Taylor’s pulmonary artery was inadvertently perforated by the catheter, causing his death.

On July 12, 1982, exactly three months before his death, Julius Taylor purchased a life insurance policy from Security Industrial Insurance Company through its authorized agent and sales representative, A.A. Bolton.

The insurance policy provided in pertinent part that “Security Industrial Insurance Company agrees to pay the benefits described in this policy” in “the amount of insurance given in the Schedule ... at the death of the Insured.” The policy was issued in the amount $2,000 and listed Patricia Taylor as the beneficiary.

The crucial provision of the policy states that “this policy shall take effect on the Date of Issue, provided the Insureds are then alive and in sound health, but not otherwise." (emphasis added.) The policy's date of issuance is August 1, 1982.

On December 29, 1982, plaintiff filed a formal claim for the $2,000 worth of coverage provided by the policy. Plaintiff’s counsel made formal demand upon defendant for the policy proceeds on January 20, 1983. However, the defendant refused to make payment under the policy provisions.

Plaintiff thus filed suit seeking the $2,000 policy coverage, statutory benefits, and attorney’s fees. In a judgment rendered December 9, 1983, the trial court granted judgment in plaintiffs favor, awarding her $2,000 in policy benefits, a 12% statutory penalty, and $3,500 in attorney’s fees. In written reasons for judgment, the trial court concluded that Julius Taylor was not excluded from policy coverage by the policy’s sound health clause, because “(t)he facts of this case overwhelmingly prove that the named insured ... was in sound health at the time of issue of the policy on August 1, 1982.”

Defendant-appellant Security Industrial raises two issues on appeal. Security Industrial first contends that the trial court erred in finding that Julius Taylor was in sound health on the date of the policy’s issuance, and therefore not precluded from coverage by the policy’s sound health clause. In its second assignment of error, defendant asserts that the trial court erred in assessing statutory penalties and attorney’s fees against it. These issues will hereinafter be singly addressed.

I.

Sound Health Clause

The courts of this state have on many occasions addressed policy exclusions which preclude coverage if the insured is not in sound health on a specified date. It has thus been determined that “sound health” clauses do not violate public policy, and are therefore legally enforceable. Martin v. Security Industrial Insurance Co., 367 So.2d 420 (La.App. 2d Cir.1979), writ refused, 369 So.2d 1364 (La.1979); Borer v. Security Industrial Life Insurance Co., 245 So.2d 5 (La.App. 1st Cir. 1971), writ refused, 258 La. 575, 247 So.2d 394 (1971); Fournier v. Gulfco Life Ins. Co., 241 So.2d 287 (La.App. 1st Cir.1970). It is axiomatic, however, that an insurer relying on a coverage exclusion to defeat recovery under an insurance policy has the burden of proving the applicability of the exclusion. Little v. Kalo Laboratories, Inc., 406 So.2d 678 (La.App. 2d Cir.1981), writs denied, 410 So.2d 1133 (La.1982); Borden, Inc. v. Howard Trucking Co., Inc., 372 So.2d 242 (La.App. 1st Cir.1979); Cummings v. Universal Life Ins. Co., 286 So.2d 412 (La.App. 4th Cir.1973). Moreover, this court has held that, in order to establish the applicability of a sound health clause, an insurer must adduce “clear and convincing evidence that the insured was not in sound health.” Martin, supra, at 367 So.2d 423. Furthermore, in addition to presenting clear and convincing evidence of the insured’s lack of sound health, the insurer must adduce date specific proof that the insured was not in sound health at the precise time stipulated by the policy as determinative. Martin, supra, at 367 So.2d 423.

Thus the dispositive issue of this first portion of the appeal is whether the trial court manifestly erred in determining that the insurer did not establish — by clear and convincing, and date-specific proof— that the insured, Julius Taylor, was not in sound health on August 1, 1982. We conclude, for the following reasons, that the trial court did not commit manifest error in concluding that the insurer did not meet this burden of proof.

In attempting to establish that Julius Taylor was not in sound health on August 1, 1982, Security Industrial adduced evidence that the decedent was an alcoholic, a diabetic, and suffered from pneumonia. Defendant offered into evidence, in this connection, medical records compiled during decedent’s two day stay in the hospital just prior to his death in the early morning hours of October 12. These records reflect that decedent was diagnosed by treating physicians as suffering from diabetes, pneumonia of the lower lobe of the left lung, and alcoholism. Decedent was observed to be in acute respiratory distress.

Defendant also introduced into evidence medical records dating from decedent’s three day hospitalization in March of 1982, some six and one-half months prior to his death. The diagnosis at that time was that decedent was suffering from alcoholism and diabetes. The defendant’s expert, Dr. Malcolm Russell, opined — on the basis of the March medical reports — that the decedent was not of sound health as of August 1, 1982. Dr. Russell never examined the decedent.

Although the defendant thus presented considerable evidence that the decedent was not in good health as of August 1, 1982, this evidence is not dispositive when viewed in light of the totality of the evidence. When the evidence is assessed as a whole, it is clear that the trial court did not commit manifest error in determining that the defendant did not adduce clear and convincing, and date-specific proof that the decedent was not in sound health on August 1, 1982.

It is pertinent in this connection that the decedent worked without interruption between the time of his hospital discharge in March and the time he contracted pneumonia in September. During the two year interim preceding his contraction of pneumonia, decedent worked at numerous jobs, performed lawn work, tended a garden, sold Avon products, and worked as a laborer at a wood mill and at a chicken processing plant. With the possible exception of the sales position, all of these jobs primarily involved physical labor. The record does not reflect that decedent suffered any health-related work interruptions other than his hospitalization in March and his pneumonic bout in September. It appears, moreover, that in the two year period preceding his death, the decedent often worked at two or more jobs simultaneously for significant periods of time. Against the backdrop of the entirety of the evidence, decedent’s hospitalization appears to be an isolated — and the only — instance of disabling sickness which occurred prior to the crucial date of August 1, 1982.

With respect to the allegation of alcoholism, there was considerable lay testimony that — although decedent engaged in a drinking bout of several weeks prior to his hospitalization in March — he otherwise drank in relative moderation and fairly infrequently. With respect to the diagnosis of diabetes made in March, it appears that this condition was at that time of relatively mild magnitude: decedent was not placed on medication until several months thereafter, and was merely advised to reduce carbohydrate and starch intake. With respect to decedent’s pneumonic condition, it is clear that this ailment did not materialize until September, well after the August 1 date of issuance. It moreover appears that this pneumonic condition was traceable in whole or in part to the cool, damp working conditions at the chicken processing plant at which decedent started working in August, and this ailment therefore sheds little light on his health condition as of August 1.

It is further significant, in assessing decedent’s health as of August 1, that decedent passed an employer sponsored physical examination by a physician shortly before going to work for Country Pride in August. Insurance agent A.A. Bolton, who personally interviewed the decedent and processed his life insurance application on July 8, 1982, stated that he did not detect any observable health deficiencies in decedent’s condition on that date. Mr. Bolton stated in this connection that, “He seemed to me to be in good health.”

In ruling that the defendant did not establish with the requisite specificity that decedent was not in sound health on August 1, the trial court placed substantial emphasis on the discharge summary and prognosis compiled upon decedent’s discharge from hospitalization on March 22, 1982. The treating physician stated in the medical report compiled prior to discharge that the decedent’s prognosis was good; that no activity limitations were imposed; and that the decedent was released to return immediately to full time work.

We conclude that, considering the evidence as a totality, the trial court did not commit manifest error in determining that the defendant did not adduce clear and convincing evidence and date-specific proof that the decedent was not in sound health on August 1, 1982. Thus, the policy exclusion relied on is inapplicable, and the plaintiff is entitled to recovery under the policy in the amount of $2,000.

II.

Statutory Penalties

LSA-R.S. 22:656 states that if an insurer “fails ... without just cause” to pay the benefits due under a life insurance policy “within sixty days after the date of receipt of due proof of death .... the amount due shall bear interest at the rate of eight percent per annum from date of receipt of due proof of death by the insurer until paid.” Statutory penalties for the refusal to pay life insurance benefits are appropriate where the insurer does not have a reasonable justification for its refusal. Thus, the presence or absence of a reasonable basis for refusal to pay is determinative in analyzing the propriety of penalty assessment. Carr v. Port Ship Service, Inc., 406 So.2d 632 (La.App. 4th Cir. 1981), writ denied, 412 So.2d 85 (La.1982).

There is substantial medical documentation in the record of the decedent’s incipient ailments of diabetes and alcoholism as of October, 1982, the date of decedent’s death. These diseases were apparently in merely embryonic stages in August of 1982, and the defendant did not establish with the requisite specificity that these ailments were significant health factors in August of 1982. Nevertheless, under the circumstances of this case, the subsequent materialization of these diseases constituted ample justification for the insurer to refuse payment, and litigate the viability of these health defects as a defense to recovery. Although a beneficiary may ultimately be determined to be entitled to policy benefits, this judicial determination does not in and of itself justify the invocation of penalties, where the insurer had reasonable grounds to believe that it had a valid defense to payment based on the insured’s lack of good health. McClelland v. Security Industrial Ins. Co., 426 So.2d 665 (La.App. 1st Cir.1982), writ denied, 430 So.2d 94 (La.1983).

For the foregoing reasons, we affirm the trial court’s award to plaintiff-beneficiary of the $2,000 worth of benefits due under the instant life insurance policy. We reverse and vacate that portion of the trial court’s judgment awarding plaintiff statutory penalties and attorney’s fees. The costs of this appeal are to be equally assessed between plaintiff and defendant.

AFFIRMED in PART, REVERSED in PART, and RENDERED.


author: HALL, Judge.

text:
    SUCCESSION OF Gurvey SHEPHERD, Sr.
    No. 16370-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Kitchens, Benton & Kitchens by John B. Benton, Jr., Minden, for plaintiff-appellant, Loretta S. Butler, Dative Testamentary Executrix of the Succession of Gurvey Shepherd, Sr.
    Campbell, Campbell & Johnson by John T. Campbell, Minden, for defendants-appel-lees, John Henry Shepherd, Jr., Henry Bryan Johnson, and Linda Johnson Porter.
    Before HALL, FRED W. JONES and SEXTON, JJ.
   HALL, Judge.

The dative testamentary executrix of the succession appeals devolutively from a district court judgment denying her application to sell immovable succession property at private sale. Finding no abuse of discretion by the district court, we affirm.

Gurvey Shepherd, Sr. died in 1963 survived by his widow, a daughter who is the executrix of the succession, and three grandchildren who are the children of the decedent’s two sons who predeceased him.

The decedent’s will was not probated until 1980 after his widow moved to a nursing home from the family home which was community property and is the property the executrix seeks to sell. The decedent bequeathed the disposable portion of his estate to his wife and granted to her the usufruct of the remainder of his estate. Accordingly, the widow is entitled to ownership of an undivided 12/is interest in the property, the daughter a ¾8 interest, and the three grandchildren a 4/is interest. The widow was named executrix in the will but because of the widow’s poor health the daughter was named dative testamentary executrix.

The property in question is located at 207 Murrell Street in Minden. The structure located on the site is a one-story, wood-frame residence a little over 50 years old. The area immediately surrounding the house is predominately commercial in nature composed primarily of shops, businesses, and rental property.

After the decedent’s widow moved from the house and the succession was opened, the executrix began her attempt to sell the property. For about two years, from December 1980 until December 1982, the property was listed by the executrix with various real estate agencies for prices, ranging from $40,000 to $34,000, but no acceptable offer was received. An offer of $25,000 was rejected by the executrix shortly after the property was placed on the market.

In December 1982 the executrix entered into a lease purchase agreement with the real estate broker currently listing the property. The agreement provided for a one-year lease at a monthly rental of $300 and a purchase price of $26,000. The executrix applied for judicial authority to consummate the transaction and is joined by the widow in seeking approval. The application was opposed by the grandchildren. The application of the executrix offered the following reasons as justification for the sale: (1) the elderly surviving spouse has been forced by ill health to move from the property to a nursing home. Left vacant, the house was deteriorating rapidly; (2) funds are needed for payment of succession debts and charges; and (3) the sale would facilitate the ultimate division of the estate.

The sale was opposed on the following grounds: (1) the decedent’s succession was free from debt at the time it was opened and at the time of the application for private sale; (2) the sale is not necessary to provide funds for the maintenance and care of the decedent’s surviving spouse; (3) the executrix is without power or authority to administer the opponents’ legitime because no testamentary bequest was made respecting the forced portion of the decedent’s estate, which devolved intestate to the opponents; consequently, the executrix’s powers are confined to administration of that portion of the decedent’s estate disposed of in his will; (4) no other valid reasons necessitating the sale exist; (5) the price offered for the property is inadequate; and (6) a public sale would be more advantageous to the succession than the proposed private sale.

The trial court found that when the will was admitted to probate in 1980 no debts were due by the decedent. The surviving widow receives an adequate income for her support. The court noted that although the executrix takes the position that the proposed sale should be approved because of the deteriorating condition of the property, there was evidence by a real estate expert that the property in the neighborhood is becoming commercial and that the house is in good condition. The realtor was of the opinion that the house had a value of $38,000 when he appraised it in October 1983 which was after the proposed buyer had expended approximately $3,000 to get the house in its present condition. The trial court held that although LSA-C. C.P. Art. 3261 authorizes a succession representative to sell succession property in order to pay debts or legacies, or for any other purpose, the succession representative has the burden of establishing the necessity of the sale or the purpose of the sale as being in the best interest of the succession. Otherwise, there would be no reason for the requirements of advertisement, hearings on oppositions, and court approval. The court noted that the principal functions of a succession representative are to collect the assets, pay the debts, and distribute the balance of the property in accordance with the decedent’s will. The court was not satisfied that the evidence established that the proposed sale was in the best interest of the succession and found that the evidence did not show that the deterioration of the house was such that a sale was the only way or the best way to preserve the estate. The court noted that the heirs could be sent into possession and that the necessity for the sale or the advantage to the succession was not established.

A succession representative may sell succession property in order to pay debts and legacies, or for any other purpose, when authorized by the court. LSA-C.C.P. Art. 3261. A succession representative who desires to sell succession property at private sale shall file a petition setting forth a description of the property, the price and conditions of, and “the reasons for the proposed sale.” LSA-C.C.P. Art. 3281. Notice of the application for authority to sell succession property at private sale must be published. LSA-C.C.P. Art. 3282. Opposition to a proposed private sale may be filed by an heir, legatee, or creditor. LSA-C. C.P. Art. 3283. If no opposition is filed and the court considers the sale “to be to the best interests of the succession”, the court shall render an order authorizing the sale. An opposition shall be tried as a summary proceeding. LSA-C.C.P. Art. 3284.

The approval of an application to sell succession property at private sale rests within the sound discretion of the trial court. There must be good reasons for the sale and it must be in the best interest of the succession. Succession of Pipitone, 204 La. 391, 15 So.2d 801 (1943); Caillouet v. Caillouet, 419 So.2d 536 (La. App. 5th Cir.1982); Succession of Lawson, 408 So.2d 992 (La.App. 2d Cir.1981). In allowing private sales of succession property, the requirement of court approval was included as a safeguard against the inappropriate disposition of succession property. Hamilton v. McKee, 371 So.2d 1115 (La.1979); Estate of LaSalle, 377 So.2d 576 (La.App. 3d Cir.1979).

A succession representative has the duty of collecting, preserving, and managing the property of the succession in accordance with law. LSA-C.C.P. Art. 3191. It is the duty of a succession representative to close the succession as soon as advisable. LSA-C.C.P. Art. 3197.

Here, the succession was not opened and the will probated until 17 years after the decedent’s death, when there were no debts and charges to be paid. There would seem to be little or no reason for an administration of the succession or the sale of succession property during the course of an administration, particularly over the opposition of some of the heirs. There would seem to be no reason why the heirs should not be sent into possession of the succession property, to manage or dispose of the property as they see fit. These were appropriate considerations by the trial court, as were the facts that the house was in good condition at the time the application for private sale was filed and that the appraised value of the house substantially exceeded the proposed sales price.

For the reasons assigned, the judgment of the district court is affirmed, at appellant’s costs.

AFFIRMED.


text:
    STATE of Louisiana, Appellee, v. George WILLIAMS, Jr., Appellant.
    No. 16,377-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Writ Denied Oct. 12, 1984.
    Smith & Hingle by J. Randolph Smith, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Allen Harvey, Asst. Dist. Atty., Monroe, for appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

The defendant, George Williams, Jr., age 63, was charged by bill of information with Attempted Second Degree Murder. The sentencing range for this offense is up to fifty years at hard labor. The defendant entered a plea of guilty to Second Degree Battery, which carries a maximum sentence of five years with or without hard labor and/or a fine of $2000. The defendant was sentenced to four years at hard labor and complains of the excessiveness of sentence on appeal. Finding no abuse of discretion in the trial court’s imposition of this four year hard labor sentence, the defendant’s sentence is affirmed.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir. 1983), writ denied, 439 So.2d 1074 (La. 1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

The defendant was charged as a result of the following factual circumstance. The defendant had a dating relationship with the victim of this offense and was apparently supporting her. The two were together in a bar, where the victim spurned the attention of the defendant in preference to another man. Shortly after declining to leave the bar with the defendant, she accepted an invitation to go to the other man’s room. As she got up to leave, the defendant became enraged and stabbed her several times with a small short-blade pocket knife. These wounds were inflicted to the victim’s upper chest area and required two days hospitalization.

The trial court specifically adverted to the defendant’s long history of criminal conduct. Over a period of forty years it appears the defendant had some seven or eight felony convictions involving crimes against property, and any number of misdemeanor driving and alcohol related offenses. The trial court noted that the defendant did not have a history of violent crimes and took into consideration the defendant’s medical complaints of hypertension, colitis, and brain and heart problems. The trial court determined that these problems did not outweigh the seriousness of the offense involved. Under the circumstances of this case, we find no abuse of discretion in the trial court’s imposition of this four year hard labor sentence, and accordingly, the defendant’s sentence is affirmed.

AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    CITY OF BOSSIER, Plaintiff-Appellee, v. HAMBLIN INVESTMENTS, INC., et al., Defendants-Appellants.
    No. 16379-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Nelson, Hammons & Johnson by Walter D. White, Shreveport, for defendants-appellants.
    James D. Hall, Asst. City Atty., Bossier City, for plaintiff-appellee.
    Before JASPER E. JONES, FRED W. JONES, Jr. and SEXTON, JJ.
   JASPER E. JONES, Judge.

Appellants, Hamblin Investment, Inc., John E. Hamblin and Tim E. Hamblin, are the partners of Sonic Drive Inn of Bossier City No. 1, a limited partnership, and the same parties are the partners of Sonic Drive Inn of Bossier City No. 2, a limited partnership. On September 29, 1983, No. 1 commenced the hamburger restaurant business at 2961 East Texas Street, Bossier City, and on the same date No. 2 commenced the hamburger restaurant business at 3504 Barksdale Blvd., Bossier City. No. 1 and No. 2 failed to purchase occupational licenses required by Bossier City Ordinance No. 27 of 1982. Pursuant to the Bossier City ordinance and LSA-R.S. 47:401, Bossier City instituted this action by rule on November 22 to enjoin No. 1 and No. 2 from doing business until they had paid their occupational license taxes plus interest and penalties. The rule was tried on November 30. At the conclusion of the trial appellants and the City entered a stipulation that appellants would that day pay the occupational license taxes based upon the 1982 gross sales of Sonic Drive Inn of Bossier City No. 1, Inc. and Sonic Drive Inn of Bossier City No. 2, Inc., which had conducted Sonic hamburger business at the locations now occupied by the partnerships during the year of 1982, subject to the later judgment to be rendered by the court. Pursuant to the stipulation appellants paid the tax.

We construe this stipulation to provide for a payment of the taxes under protest and by the terms of the stipulation the City agreed to return the taxes paid if the court rejected its demand that appellants pay the amount demanded by the City or cease doing business. On December 21 judgment was rendered in favor of the City and the judgment was signed on January 9, 1984 and this appeal followed.

The issue presented is whether the amount of the 1983 occupational license taxes for partnership No. 1 and for partnership No. 2 should be calculated on the 1982 gross sales of Sonic Drive Inn of Bossier No. 1, Inc. and Sonic Drive Inn of Bossier No. 2, Inc., as required by the City, or whether the 1983 occupational license taxes of partnership No. 1 and partnership No. 2 should be determined under the tax provisions which apply to new businesses.

Prior to a sheriffs sale on September 7, 1983 the Sonic hamburger business had been conducted by Bossier No. 1, Inc. at the site where the Sonic hamburger business was commenced by partnership No. 1 on September 29. Prior to the sheriffs sale the Sonic hamburger business had been conducted by Bossier No. 2, Inc. at the site where the Sonic hamburger business was commenced by partnership No. 2 on September 29.

Prior to November 23, 1982 the sole stockholders of the two corporations were Robert A. Gass and John E. Hamblin. On that date in a complex sales, chattel mortgage and sublease agreement, John E. Hamblin sold his stock in these two corporations on credit to Robert A. Gass. He sold on credit an interest he had in the movable property used in the businesses to Robert A. Gass and the two corporations. He subleased the sites where the businesses were conducted to Robert A. Gass and the corporations. John E. Hamblin received as security for the payment of .the price of the credit sales of the stock, the movable property, and the consideration for the subleases, notes executed by the corporations and Gass secured by a chattel mortgage on all the corporation stock and on all the movable property used in the operations of the two businesses. Gass and the corporations defaulted on the payments required by the notes and John E. Hamblin foreclosed on the chattel mortgage and purchased at the September 7 sheriffs sale all the stock in the corporations and the movable property used by the corporations in the conduction of the businesses.

The two partnerships were thereafter formed on September 19 with John E. Hamblin owning a 58% interest in each. The partnerships admit they acquired the prior business assets of the corporations by virtue of the sheriffs sale, though the exact manner by which they made their respective acquisitions from John E. Hamblin who purchased the stock of the corporations and movable property of the corporations at the sheriffs sale, is not in the record.

The power of local governing units within the state to levy and collect annual occupational license taxes is regulated by Title 47, Sub-Title II, Chapter 3 of the Revised Statutes consisting of LSA-R.S. 47:341— 405. The local units cannot levy a greater tax than is set by the statute. LSA-R.S. 47:341. Chapter 3 contains a number of tables setting the tax schedule the local units can charge for different types of businesses at different income levels. LSA-R.S. 47:346-395. LSA-R.S. 47:353 contains the license tax schedule applicable to restaurants and the amount of the tax is based upon gross sales. The table in this provision increases the tax upward as the gross sales increase. The provisions of LSA-R.S. 47:398 A establish base periods from which the revenue of the business is taken to be used in determining the amount of the tax. 47:398 A provides:

§ 398. Period used where gross revenue is the measure of the license A. The basis for determining the amount of the annual licenses provided by this Chapter, where the license is measured by gross revenue, shall be as follows:
(1) If the business has been conducted previously by the same party, or by a party or parties to whom he or they are successors, the annual gross receipts, gross sales, gross premiums, gross fees and/or gross commissions (as the case may be) earned, regardless of whether received or accrued, during the preceding calendar year for which the license is issued shall be the basis for determining the amount of the annual license.
(2) If the business is begun during the calendar year for which the license is issued the license for the year of commencement shall be based on the gross receipts, gross sales, gross premiums, gross fees or gross commissions earned, regardless of whether received or accrued, during the first thirty days of business, multiplied by the number of months, or major fraction thereof, remaining in the calendar year; provided, that any business which opens after June thirtieth of the year in question whose estimated gross revenue for the remainder of the year is less than one-half of the maximum gross revenue allowed in the minimum rate under the classification of the particular business, shall pay for the remainder of the year at one-half of the minimum rate.
(3) If the business is begun less than thirty days before the end of the calendar year for which the license is to be issued the tax shall be based on the gross receipts, gross sales, gross premiums, gross fees or gross commissions earned, regardless of whether received or accrued, during the calendar year; provided that one-half of the annual rate shall apply to such businesses whose gross revenue for the period operated during the calendar year is less than one-half of the maximum gross revenue allowed in the minimum rate under the classification of the particular business.
(4) The license tax of a business for the calendar year following that of commencement shall be based on the gross receipts, gross sales, gross premiums, gross fees or gross commissions earned, regardless of whether received or accrued, during the previous year, divided by the number of days in operation during the year of commencement, and multiplied by three hundred sixty-five.

Appellants were informed by their attorney that the businesses should be taxed under 47:398 A(2). When appellants attempted to secure the licenses they tendered to the city a check for $5.00 (representing $2.50 per business) for the 1983 taxes. The city rejected the tender contending that since the businesses were operated in 1982, although by different owners, the tax should be based on the 1982 gross sales of the corporations which had previously conducted business at the same sites where the partnerships are doing business. Following the trial of the rule on November 30 the City accepted $300.00 plus $27.00 interest and penalties from partnership No. 1 and issued the occupational license and the City accepted $180.00 plus $16.20 from partnership No. 2 and issued an occupational license.

47:398 A contemplates that whenever a business was in operation, as the same business or same type of business, for any part of the previous year and is owned by the current operator or by an operator to whom the current operator-is a successor, the current year’s tax is based on the income that was either earned or would have been earned, if the business had operated the full previous year. See 47:398 A(l) and (4). The reason for the rule is that once the business has been in operation for any part of a prior year, the taxing authority has a basis for estimating the current year’s sales. The sole exception to the rule is where a new business is opened for the first time during the course of the year. In that event the business will only be taxed on the income it will earn during the part of the year it operates estimated from the first 30 days of operation. 47:398 A(2).

Appellants contend they should be taxed as the operators of newly opened businesses under 47:398 A(2) because they do not meet the “successor to the previous operator” requirement under 47:398 A(l). They argue that a purchaser of a business at a judicial sale cannot be considered a successor to the previous owner because the sale is not negotiated and the purchaser has no opportunity to protect himself from prior tax liability of the judgment debtor.

The argument is without merit. The successor is never liable for the tax owed by his predecessor. The successor’s liability for occupational tax does not exist until it commences business and does not become past due until 10 days thereafter under Sec. 15-27 of the Bossier City ordinance. The amount of the successor’s tax is what is determined by the gross sales of the predecessor during the preceding year. The issue here presented is not the manner in which these partnerships acquired title to the assets of the corporations but whether the business which they are conducting is essentially the same business which had been conducted by their predecessor. If the business is essentially the same the scheme of the tax statute provides that the gross sales of the prior operator of the business provides a proper base upon which the amount of the tax can be computed. We have been cited no prior case where the definition of successor in this tax situation has been determined and our research for a similar case has produced no result. C.C. art. 3556 states “Successor is, generally speaking, the person who takes the place of another.” Black’s Law Dictionary, 5th Ed. defines successor as “One who takes the place that another has left, and sustains the like part or character ...”

The provision of Sec. 398 A(l) does not limit the succeeding taxpayer to which it is applicable to those successors who purchased the business from the party who conducted it the previous year. Rather the provision refers to the business being conducted by a successor. The intent of the provision is that it applies to the same business though it be conducted by some entity other than the entity which conducted the business the prior year.

The partnerships are conducting the business of selling Sonic hamburgers which is exactly the business conducted by the corporations. The partnerships are using the same movable property previously used by the corporations and are using similar names and the same outside signs at the same locations. No doubt the partnerships are using the same or similar franchises as those used by the corporations. The partnerships took the place of the corporations as the operators of the Sonic hamburger business and they are successors to the corporations within the contemplation of 47:398 A(l).

The judgment requiring them to pay the tax calculated as provided in this section or cease doing business is correct.

We note the occupational taxes were past due 10 days after September 29 and the amount in excess of the tax collected from these partnerships did not exceed the 12% per annum interest and 5% per month penalty which is authorized by the Bossier Parish ordinance on past due occupational licenses.

AFFIRMED at appellant’s cost.

      . In this document John A. Hamblin conveyed his interest in the Sonic franchises to Robert A. Gass. The document contains declarations indicating the corporations owned part interest in the Sonic franchises.

      . Bossier City has expressly adopted the state statute in its entirety. Bossier City Ordinance No. 27 of 1982, § 15-22.

      . Whenever a new business opens in Bossier City the city charges an initial license fee of one-half the minimum tax set by statute for that class of business. The minimum tax for restaurants is $5.00. LSA-R.S. 47:353. The remainder of the tax due, if anything, is collected after the first 30 days of operation.

      . The tax was based upon the 1982 gross sales of the corporations and the interest and penalty charged was apparently based upon the tax becoming due 10 days after the partnerships commenced business on September 29.


text:
    Lang MOORE, Jr., et ux., Plaintiff-Appellants, v. The AETNA CASUALTY AND SURETY COMPANY, et al., Defendant-Appellees. Bobbie Jean MOORE, Plaintiff-Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, et al., Defendant-Appellees. MARYLAND CASUALTY COMPANY, Plaintiff-Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, et al., Defendant-Appellees.
    Nos. 16380-CA to 16382-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Campbell, Campbell & Johnson by James M. Johnson, Minden, for plaintiffs-appellants.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for Star Furniture of Minden, Inc. and Aetna Cas. & Sur. Co.
    Mayer, Smith & Roberts by Caldwell Roberts, Shreveport, for Fedders Corp.
    Bodenheimer, Jones, Klotz & Simmons by Harry D. Simmons, Shreveport, for United Distributing of Shreveport.
    Cook, Yancey, King & Galloway by Charles G. Tutt, Shreveport, for Kenneth Warren d/b/a Warren’s Appliance Service and Commercial Union Ins. Co.
    Before HALL, FRED W. JONES, Jr. and SEXTON, JJ.
   SEXTON, Judge.

Plaintiffs, Mr. and Mrs. Lang Moore, Jr., filed suit for the loss of their home by fire, joining as defendants both the manufacturer and seller of an air conditioner which plaintiffs contend was defective and caused the fire. Mr. and Mrs. Lang Moore, Jr. also brought suit against a third defendant for allegedly advising them to install an improper circuit breaker which causally contributed to the fire. Plaintiff, Bobbie Jean Moore, daughter of Mr. and Mrs. Lang Moore, Jr., brought suit against the same defendants for the death of her minor child in the fire. Plaintiff, Maryland Casualty Company, brought suit against the defendants to recover the insurance proceeds paid out by it under an insurance policy covering the home of Mr. and Mrs. Lang Moore, Jr. The claims of all the plaintiffs against all the defendants were consolidated for purposes of trial. The trial court granted judgment in favor of all the defendants, and against the plaintiffs. We affirm.

Principal plaintiffs in this cause are Lang Moore, Jr., a 53 year old construction worker residing in Minden, and his wife, Bertha Lee Moore. Mr. and Mrs. Lang Moore, Jr. owned the house at 913 Wood Street which was destroyed by fire. Plaintiff Bobbie Jean Moore is the daughter of Mr. and Mrs. Moore, and resided with them at 913 Wood Street at the time of the fire. Bobbie Jean’s eight year old daughter, Roshan-da, died in the fire which destroyed Mr. and Mrs. Moore’s home. Plaintiff Maryland Casualty Company is the insurance company that provided fire insurance coverage to Mr. and Mrs. Moore on their home, and paid policy benefits to the Moores. Maryland Casualty was subrogated to Mr. and Mrs. Moore's right to receive compensation for the loss of their home to the extent of Maryland Casualty’s reimbursement.

Defendants in this cause are Fedders Corporation (hereinafter referred to as Fedders), the manufacturer of the allegedly defective air conditioner, and its insurer, ABC Insurance Company; and Star Furniture of Minden, Inc., (hereinafter referred to as Star), who sold the air conditioner to plaintiffs, and its insurer, Aetna Casualty and Surety Company. Also joined as defendants were Kenneth Warren, the self-employed repairman who inspected the air conditioner prior to the fire, and his insurer, Commercial Union Insurance Company.

On July 14, 1980, Lang Moore, Jr. purchased from Star Furniture a new air conditioner manufactured by Fedders which was delivered on July 15 by two employees of Star Furniture. The two employees plugged the air conditioning unit into an electrical outlet at the Moore residence. However, while the fan operated, the compressor would not activate, and the air conditioner therefore simply emitted warm air. The following day, July 16, the same two employees returned to the Moore residence in the morning, picked up the air conditioner, and brought it back to Star.

That same day, Keith Madden, the manager and proprietor of Star Furniture, tested the unit at Star. It operated perfectly there.

Later that same afternoon, July 16, Lang Moore, Jr. and his son came to Star to speak with Keith Madden about the status of the air conditioner. Madden related to Mr. Moore that the air conditioner was functioning properly and in good condition, and had performed satisfactorily when plugged in at Star. Madden further explained to Mr. Moore that the air conditioner had not operated properly at the Moore residence because the air conditioner was not receiving sufficient voltage, or because there was something wrong with the electrical system or wiring in Mr. Moore’s house. Madden then notified Mr. Moore that Star was going to return the air conditioner to the Moore’s house. Mr. Moore did not object. Shortly thereafter, on the afternoon of July 16, Star’s employees returned the same Fedders air conditioning unit to the Moore residence.

Later on the afternoon of July 16, Mr. Moore called Mr. Madden to renew his complaint that the air conditioning unit was not operating properly at the Moore residence. Mr. Madden repeated to Mr. Moore that the air conditioner was in operable condition, and that its improper performance at the Moore residence was a result of defective wiring or insufficient voltage at the Moore residence. Mr. Madden accordingly advised Mr. Moore to obtain the services of an electrician.

Repairman Kenneth Warren went to the Moore residence on July 17 at the request of Star Furniture’s manager, Keith Madden. At the Moore residence, Mr. Warren found that when the air conditioner was plugged in, the fan would activate, but the compressor would not function. As electrical surges would approximate activating the compressor, the fan would slow. When the compressor would “kick off,” the fan would resume its normal speed. Mr. Warren subsequently employed a voltage meter in the Moore residence and thereby determined that there was insufficient voltage in the Moore’s electrical system to power the air conditioner. Mr. Warren further determined that a severe drop in the voltage present in the circuit occurred when the air conditioner was turned on. Mr. Warren ultimately concluded that “something was wrong with the wiring” in the Moore’s residence, unplugged the air conditioner, counseled the Moores not to plug the unit back in, and advised them “[t]o get an electrician.”

Subsequent to Mr. Warren’s examination of the air conditioner and circuitry at the Moore residence, Lang Moore, Jr. replaced the 20 amp breaker, which regulated the circuit into which the air conditioner was plugged, with a 30 amp breaker. The 30 amp breaker was installed in an apparent attempt to allow greater voltage to flow through the circuit which fed the receptacle into which the air conditioner was plugged. The air conditioner was plugged into a receptacle below the living room picture window at the front of the Moores’ brick house. This receptacle was fed by an electrical circuit of 20 amp electrical wire which wound from the utility room at the back of the Moore’s house where the breaker box was located, to the living room located at the front, or “street side,” of the residence. There were other electrical appliances located in the Moore’s living room in addition to the air conditioner. However, the air conditioner was apparently the only appliance plugged into the receptacle located beneath the picture window of the Moore’s living room.

Despite the replacement of the 20 amp breaker with a 30 amp breaker, the air conditioner still did not function properly at the Moore house. When plugged in and turned on, the unit’s fan would operate, but the unit’s compressor would not activate or generate cold air, and the air conditioner accordingly only blew out hot air.

At 9:00 p.m., on the night of July 28, 1980, all of the residents of the Moore household were home, save David Moore, Lang Moore’s 23 year old son. An electrical storm arose that night, and all of the members of the Moore household present retired early, around 9:00 p.m. Before going to bed, the Moores — at the behest of their father — unplugged all appliances in the house, except for the deep freeze and refrigerator.

David Moore returned to the Lang Moore household later that night, at approximately 1:00 a.m. He plugged in the air conditioner, and turned it on, in a futile attempt to get cooled off. The fan operated, but the compressor still failed to activate. David Moore nevertheless left the air conditioner plugged in and turned on, and went to bed in the bedroom which he shared with his brothers.

At roughly 2:00 a.m., an hour later, members of the Moore residence were awakened by the smoke from a fire which had broken out in the living room at the front of the house and was rapidly spreading. The Moore family successfully escaped the fire in the living room at the front of the house by slipping out their bedroom windows which opened up to the backyard of the residence. However, Roshanda Moore, the eight year old granddaughter of Lang Moore, Jr. and his wife Bertha, and the daughter of Bobbie Jean Moore, became lost in the smoke and confusion surrounding the Moores’ evacuation of their house. She ultimately died in the ensuing blaze despite the attempts of Lang Moore, Jr., David Moore and firefighters to save her.

Maryland Casualty Co. subsequently paid $21,900 to Lang Moore, Jr., for the total destruction of his home by fire. This amount reflected the $22,000 policy limit for total loss of the home, less a $100 deductible. This payment left the plaintiffs uncompensated for their household belongings, virtually all of which had been consumed in the conflagration. The legal actions previously outlined ensued.

The claims of all the plaintiffs against all the defendants were consolidated for the purpose of trial which commenced before a jury on November 7, 1983. At the close of plaintiff’s ease, the trial court granted a directed verdict against the plaintiffs and in favor of Fedders and Star Furniture and their respective insurers, on the grounds that the plaintiffs had not established grounds upon which recovery against these defendants could be based. The trial court also sustained a peremptory exception in favor of repairman Kenneth Warren and his insurer, on the grounds that any claims against Mr. Warren had prescribed prior to the filing of suit against him.

Plaintiffs urge two major contentions on appeal. Plaintiffs first contend that the trial court erred in granting a directed verdict in favor of Fedders and Star Furniture and their respective insurers, on the plaintiffs’ defective product claim. Plaintiffs assert in the second instance that the trial court erred in determining that plaintiffs’ claims against Kenneth Warren had prescribed, and in awarding judgment in Warren’s favor on that basis.

I.

The Granting of a Directed Verdict In Favor of Fedders and Star Furniture

LSA-C.C.P. Art. 1810 provides that a party may move for a directed verdict at the close of the evidence offered by his opponent. The motion for directed verdict is appropriately granted in a jury trial when, after considering all evidentiary inferences in the light most favorable to the movant’s opponent, it is clear that the facts and inferences redound so overwhelmingly in favor of granting the verdict, that reasonable jurors could not arrive at a contrary conclusion. Roberts v. St. Bernard Parish School Board, 427 So.2d 676 (La.App. 4th Cir.1983), writ denied, 433 So.2d 1053 (La.1983); King v. Commercial Union Ins. Co., 425 So.2d 358 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 146 (La.1983).

It is axiomatic that the propriety of a directed verdict must be evaluated in light of the substantive law underpinning the plaintiffs’ claims. The substantive law applicable in this case is products liability law. The Louisiana Supreme Court clearly enunciated the fundamental precepts of products liability in its landmark decision in Weber v. Fidelity Casualty Ins. Co. of New York, 250 So.2d 754 (La.1971). As was made clear in Weber, the essential elements of proof in a products liability ease are proof of the defective or unreasonably dangerous character of the product, and proof that plaintiffs injuries were caused by the product’s defects.

The trial court did not err in granting a directed verdict in favor of Fedders and Star Furniture. This is because the plaintiff simply did not present proof which—even after reasonably resolving evi-dentiary inferences in plaintiffs’ favor— would enable a juror to reasonably conclude either that the air conditioner was defective or that it had caused the fire.

Clifford Frey, the electrical engineer whose expert testimony went to the crux of the issue of defect and causation, was plaintiffs’ own witness. However, Mr. Frey expressly declined to opine that the air conditioner was defective. The nearest approximation to evidence that the air conditioner was defective was Mr. Frey’s rumination that there was a possibility—but not a probability—that the air conditioner became defective through constant overloading of the electrical circuits of the Moore residence. Mr. Frey was explicit in his refusal to state that the air conditioner was probably defective as manufactured. No other witness presented by plaintiff stated that the air conditioner was defective, or even probably defective. Furthermore, Mr. Frey unequivocally testified that there was virtually no question that the fire was started by the overloading or over-fusing of Lang Moore’s electrical circuits with more voltage than the circuits were designed to conduct.

Mr. Frey explained that the regulation of a 20 amp circuit with a 30 amp breaker violated the most fundamental principles of electrical wiring. The installation of a 30 amp breaker on a 20 amp circuit caused an overload of the 20 amp wiring, placing a greater burden on the wiring than it was designed to bear. He further clarified that this type of overloading deteriorates the insulation which encapsules electrical wiring, and allows electricity generated heat from the wire to escape into the surrounding wall. Mr. Frey testified that this phenomenon of circuit overloading created a “heat spot,” and caused the tragic fire to break out in the wall near the air conditioner.

The testimony of Mr. Frey, just discussed, was the sole evidence in plaintiff’s case addressed to defect and causation. The granting of the directed verdict here appealed was clearly not error in view of the factual evidence and the testimony of Mr. Frey.

II.

The Sustaining of a Peremptory Exception in Favor of Kenneth Warren

The basis of plaintiffs’ claims against Repairman Kenneth Warren and his insurer was their factual allegation that he gave them ill-conceived advice to place a 30 amp breaker on a 20 amp circuit. This act of misconduct allegedly occurred on July 17, 1980, when Kenneth Warren went to the Moore residence to inspect their air conditioner. Suit was filed against Kenneth Warren on January 20, 1983, long after suit had been filed against the other defendants. The trial court sustained a peremptory exception of prescription filed by Mr. Warren.

Actions in tort prescribe in one year “from the day injury or damage is sustained.” LSA-C.C. Art. 3492. Over a year had elapsed between the time plaintiffs’ losses were sustained on July 28, 1980, and the time suit was filed against Kenneth Warren on January 20, 1983. Thus, any action in tort against Kenneth Warren had prescribed.

It is further germane that plaintiffs may not avail themselves of the timely interruption of prescription with respect to Star and Fedders to interrupt prescription with respect to Kenneth Warren, under the theory that Star and Fedders are solidary co-obligors of Kenneth Warren. See LSA-C.C. Art. 2097. Star and Fedders are not obligors of the putative obligation to compensate plaintiffs’ fire losses, having been correctly found free of liability for said losses. Because Star and Fedders are not obligors of the putative obligation to compensate plaintiffs’ fire losses, they could not logically be deemed to be Kenneth Warren’s solidary co-obligor with respect to said putative obligation. Because Star and Fedders are not solidary co-obligors of Kenneth Warren, the interruption of prescription with respect to Star and Fedders does not effect an interruption of prescription with respect to Kenneth Warren.

Plaintiffs did not have any contractual privity with Kenneth Warren which could serve as the predicate of an action in contract, and avail plaintiffs a longer prescriptive period of ten years. LSA-C.C. Arts. 3499, 3500. However, the record reflects that Kenneth Warren had a contractual arrangement with Star and Fedders to repair air conditioners manufactured and sold by them. Plaintiffs assert, on the basis of this contractual arrangement, that the respective contractual arrangements between Kenneth Warren on the one hand and Star and Fedders on the other, constituted stipulations pour autrui—contracts which inured to the benefit of the Moores as third party beneficiaries. They contend that the breach of these stipulations pour autrui conferred upon them, as third party beneficiaries, an action in contract, which prescribes in ten years rather than one.

Plaintiffs are correct in asserting that where two parties enter into a contract to construct or repair an edifice owned by a third party, and that contract is ultimately designed to benefit the third party/owner, the third party/owner has an action in contract for the breach of that contract. LSA-C.C. Arts. 1890, 1902. State ex rel Guste v. Simoni, Heck & Associates, 331 So.2d 478 (La.1976); Abney v. Allstate Ins. Co., 442 So.2d 590 (La.App. 1st Cir.1983). However, the evidence adduced at trial does not support the contention that plaintiffs possess an action in contract as third party beneficiaries. This is because the alleged actions of Kenneth Warren which form the basis for plaintiffs’ action against him are totally outside the scope and terms of Kenneth Warren’s contractual arrangements with Star and Fedders, and therefore do not constitute a breach of said contracts.

If Kenneth Warren had negligently repaired plaintiffs’ air conditioner, this dereliction of duty could well have constituted a breach of his agreements with Star and Fedders, and conferred upon the plaintiffs an action in contract as third party beneficiaries of the contract. However, there is no evidence or claim that Kenneth Warren negligently repaired plaintiffs’ air conditioner or omitted an attempt at repair when the circumstances indicated the advisability of repair. The record amply demonstrates that Mr. Warren did not undertake a repair of the air conditioner; and further establishes that no such undertaking was called for, insofar as the cause of the unit’s malfunctioning was not in the air conditioner itself, but in the Moores’ electrical system. The factual basis of plaintiffs’ claim against Kenneth Warren is instead the allegation that Warren gave gratuitous, ill-advised and harm-causing advice to them to replace the 20 amp breaker with a 30 amp breaker.

We reject the plaintiffs’ assertion that they have claims against Kenneth Warren in contract, for the simple reason that the advice complained of did not constitute a breach of Kenneth Warren’s contracts with Fedders and Star. Warren’s contract with Fedders and Star extended only to air conditioning repair. Warren’s contracts with Star and Fedders did not extend to or embrace advice on residential electrical systems, or electrical circuit analysis. Any advice on electrical systems was wholly outside the air conditioner repair contracts. Warren’s contracts with Star and Fedders imposed upon him a duty of prudent air conditioning repair, but did not impose upon him a duty of prudent electrical circuitry analysis.

We conclude that because Warren’s alleged advice did not come within the scope of Warren’s contracts, and did not constitute a breach of Warren’s contractual duty of prudent air conditioner repair, plaintiffs do not have an action in contract for the breach of the stipulation pour au-trui intended for their benefit. They are thus unable to avail themselves of the longer ten year prescriptive period applicable to actions in contract.

We do not mean to hold that an appliance repair contract may never be breached by negligent electrical systems repair or inspection. In our cause, plaintiffs never established that Kenneth Warren’s contracts with Star and Fedders extended beyond air conditioner repair. No evidence was adduced that said contracts encompassed the repair and/or inspection of electrical systems. Our decision is thus based upon what was established at trial to be the scope of the contracts.

We find for the foregoing reasons that the trial court did not err in granting a directed verdict in favor of Fedders, Star Furniture, and their respective insurers, and in sustaining the peremptory exception of prescription in favor of Kenneth Warren. The trial court’s judgment is at appellants’ cost in all respects affirmed.

AFFIRMED.


text:
    Donald V. BOLEN, et al., Plaintiffs-Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY, et al., Defendants-Appellees.
    No. 16400-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.

      Hal V. Lyons, Shreveport, for plaintiffs-appellants, Donald V. Bolen and David Ray Bolen.
    Lunn, Irion, Switzer, Johnson & Salley by Jack E. Carlisle, Jr., Shreveport, for defendants-appellees, State Farm Fire and Cas. Co., Friendship Academy, Inc., and Cecil Thibodeaux.
    Before HALL, MARVIN and NORRIS, JJ.
   HALL, Judge.

The plaintiffs, a father and his son who was injured when bitten by a dog, appealed from a judgment in the amount of $35,000 rendered in accordance with a jury verdict, complaining that the damage award is too low and that the jury’s finding that the son was thirty percent negligent is erroneous.

This lawsuit presents the poignant story of a boy, his coach, and his coach’s watchdog who bit the hand (literally, the1 leg) that fed him.

The boy is David Bolen, a student and star athlete at Friendship Academy. He and his father, Donald V. Bolen, are the plaintiffs in this lawsuit.

The coach is Cecil Thibodeaux who taught math and was the head basketball and football coach at Friendship Academy. Coach Thibodeaux and his family lived in a trailer home on the school grounds, where the coach also had security responsibilities and mowed the grass when needed. Coach Thibodeaux, Friendship Academy, and their liability insurer are the defendants in this suit.

The dog is Bo, a large Bull Mastiff who strayed onto the campus of the academy, wounded, bleeding and tick infested. Bo was befriended and nursed back to health by Coach Thibodeaux who then used Bo to help guard the campus where vandalism and gasoline stealing had become a serious problem. Bo acquired somewhat of a reputation as a watchdog, partly because he looked mean and partly because of a story the coach made up and spread around about Bo having bit and run off some persons who were attempting to steal gasoline one night. Bo was known to have bitten a person on a moped who was teasing him. On another occasion Bo jumped into a pileup on the football practice field and bit one of the participants. The coach’s regular practice was to put Bo on a chain in the morning and then unchain him at night, but it appears that Bo pretty much had free run of the campus. He often went into the gym and lay on the floor while students practiced, and the students sometimes played around with him.

Before Coach Thibodeaux and his family went out of town during the Thanksgiving holidays in 1981, he asked David to feed Bo during his absence, which David was happy to do because he considered Bo his canine friend. David fed Bo as requested for several days, during which time Bo was not kept on the chain.

On Sunday night following Thanksgiving, David and some friends had finished playing basketball in the gym, which was a regular practice at the school. They left the campus in David’s pickup truck and then David went back to the gym with one of his friends to turn off the gym lights. He parked his truck about ten feet from the gym door with its headlights shining through the gym. When David got out of the truck Bo joined him and David went inside the gym with Bo tagging along. He walked across the gym, turned off the lights, and came back out with Bo still tagging along. As David started to climb into his truck Bo, for some unknown reason, clamped his massive jaws around David’s leg and pulled him to the ground. David was able to fight Bo off only after Bo had bitten a large “hunk of meat” from David’s right leg. David dived into his truck with Bo diving in right after him. However, Bo missed David and latched onto the truck seat with his teeth and would not let go. David got the truck started and was finally able to throw Bo out of the truck by driving in circles.

David drove to Coach Thibodeaux’s trailer and the coach, who had just returned home, took him to the hospital where he was treated for a severe and terrible looking dog bite injury. The next day Dr. John P. Valiulis, a plastic surgeon, debrided the wound while David was under a general anesthetic, but the wound could not be closed because of lack of sufficient skin to make a closure. For several days the wound was cleaned and dressed and washed out with whirlpool baths, during which time David suffered considerable pain. The plastic surgeon again performed surgery, grafting skin taken from David’s left buttock to his right leg. David was discharged from the hospital after fourteen days.

Some two months after the injury David was playing first-string basketball, and he was an all-state football player the following fall. He has no functional disability but does have a degree of permanent disability because a part of his leg and foot is permanently numb. The scar on his leg is somewhat unsightly, but more unsightly is the scar on his buttock from which the skin was taken for the graft. This scar in the shape of a square several inches wide darkened and became rough and itchy due to some genetic pigmentation problem. Outpatient surgery was required about a year after the injury to improve the condition of this scar which remains very unsightly. Fortunately, the scar is hidden by boxer-type shorts or swimsuit, but it is partly visible with jockey-type shorts or swimsuit. Medical expenses to the date of trial were $8,695.35. The plastic surgeon testified that the scars could be cosmetically improved about fifty percent with six or seven additional surgeries at a cost of some $28,000. The doctor said that he was not sure he would undergo the additional surgeries if it were himself, and David did not testify as to any plans to have the additional cosmetic surgery done.

After hearing the evidence, the jury, in answer to special interrogatories, found that the plaintiff knew the dog was dangerous and that the plaintiff voluntarily confronted a known danger and assumed the risk. The jury further found that Friendship Academy was sixty percent at fault, Coach Thibodeaux was ten percent at fault, and David was thirty percent at fault. The jury awarded $50,000 in damages which, when reduced by thirty percent, amounted to an award of $35,000 to David and his father. From a judgment rendered in accordance with the jury verdict, the plaintiffs appealed. The defendants did not appeal or answer the appeal.

On appeal the plaintiffs argue that the jury erred in finding fault on the part of David. It is argued that since the dog was friendly toward David and David had been assisting in the care and feeding of the dog without incident, he had no reason to suspect that the dog would suddenly attack him and consequently he was not at fault and did not assume the risk he encountered. The defendants argue that the jury was reasonable in determining that the plaintiff assumed the risk of being bitten by the dog and that the plaintiff was well aware of the dog’s propensity for biting, but nevertheless continued into the gym and turned the lights off even after he saw the dog was roaming the school yard.

After reviewing the evidence, we find that the jury was clearly wrong and manifestly erroneous in attributing any degree of fault to David. There were only two known incidents when Bo had bitten anyone and they appear to be minor in nature. On one of those occasions the dog was being teased and provoked. The other occasion involved a group of boys playing rowdily near the dog. These incidents were not significant enough to establish that the dog had known dangerous propensities or to cause David to suspect that Bo might launch an unprovoked attack against him. To the contrary, David’s experience with the dog had been good and he thought the dog was his friend. He had been around him in the gym and had fed him for several days without any problems. The fact that his coach asked him to care for the dog belies any reason for David to think that the dog was dangerous and likely to attack him. At the time the incident took place David was pursuing normal activities on the school grounds, walking in a normal manner with the dog tagging along, and did nothing whatsoever out of the ordinary that was likely to provoke an attack by the dog.

The burden was on the defendants pleading contributory negligence to prove that David failed to exercise the care for his own safety that an ordinarily prudent person would exercise under the same or similar circumstances. Under the circumstances there was no reason for David to believe that he was in danger of attack from the dog while going to and from the gym. The sudden attack by the dog was entirely unforeseeable by David. The defendants failed to establish any fault or negligence on the part of David.

As to the amount of damages, plaintiffs strenuously urge that the jury abused its discretion in failing to award a larger amount of general damages in addition to proven medical expenses of over $8,000 and future medical expenses of over $28,000. The defendants argue that the jury committed no abuse of discretion in the amount of damages awarded, citing the fact that David returned to his role as a star athlete at the school a little more than a month after the incident occurred.

The jury could, and apparently did, reasonably conclude that future medical expenses were not established. Although it was established that cosmetic surgical procedures were available to improve the condition of the scars, there was no evidence that David had any intention or plans of undergoing those procedures. The damage award was not itemized by the jury, but it can be assumed that the jury intended to compensate David and his father for the $8,700 in medical expenses actually incurred, leaving a general damage award of approximately $41,300. Considering the severity of the injury, the degree of permanent disability attributable to the numbness in the side of the leg and foot, and the permanent disfigurement, the general damage award is clearly on the low side, but is not so low as to amount to an abuse of the jury’s much discretion.

For the reasons assigned, the judgment of the district court is amended to increase the amount awarded to the plaintiffs from $35,000 to $50,000 and as amended is affirmed, at the cost of the defendants-appel-lees.

Amended, and as amended, affirmed.


author: MARVIN, Judge.

text:
    Celia HOWERY, Plaintiff-Appellant, v. William LINTON, et al., Defendant-Appellee.
    No. 16412-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    See also 452 So.2d 295, La.App.

      Loridans, Beresko & Loridans by Henri Loridans, Bossier City, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by Charles W. Salley, Shreveport, for defendant-appellee.
    Before HALL, MARVIN and NORRIS, JJ.
   MARVIN, Judge.

In this action for personal injury damages arising out of an altercation with other patrons in a Bossier City lounge, plaintiff appeals a summary judgment in favor of the lounge operator.

We find that the affidavits and deposition present genuine issues of material fact and reverse and remand. CCP Art. 966.

A lounge owner owes his customers the duty of reasonable care to protect them from insult, annoyance, or danger at the hands of other customers or lounge employees. Anderson v. Clements, 284 So.2d 341 (La.App. 4th Cir.1973); Borne v. Bourg, 327 So.2d 607 (La.App. 4th Cir. 1976); Freeman v. Bell, 366 So.2d 197 (La.App. 2d Cir.1979), writ ref. This duty extends to the calling of police if need be and if time permits. Anderson, supra.

Plaintiff’s deposition elaborates on her allegations. Plaintiff is an experienced bartender and manager. After completing her work, she went to defendant’s lounge about 12:30 a.m. She knows Steve Hucka-by and Mike Linton, the defendant’s son, who were in the lounge, and who were, according to plaintiff, intoxicated. Plaintiff also effectively states that Steve Huc-kaby and Mike Linton are easily provoked when they are drinking. She asserts that defendant was “quite familiar with [his son’s] quick temper and violent, bullying propensities” at the time in question.

In deposition and counter affidavit, plaintiff states that defendant had time to shout and require the fighting customers to leave, to call the police or threaten to do so, and that defendant did nothing to prevent his son and Steve Huckaby from continuing the altercation with a female customer or physically attacking plaintiff.

According to plaintiff, the altercation arose when a customer named Joan made some remarks to the wives of Steve Hucka-by and Mike Linton. When Joan got into a scuffle with Huckaby’s wife, Huckaby and Mike Linton allegedly grabbed Joan and started hitting her. Plaintiff shouted for them to stop hitting the female customer. When plaintiff arose from her chair, the two grabbed plaintiff and battered her, causing her injuries.

Defendant’s affidavit denied any knowledge of violent tendencies, or of the intoxication, of either or both Huckaby and defendant’s son. Defendant asserts that when the altercation arose he did all within his power to squelch it.

The propensities and intoxication of Huc-kaby and Mike Linton are genuinely disputed. Other factual disputes exist as to the time Huckaby and Linton had been drinking in the bar, whether defendant himself was intoxicated, and whether defendant had time to do more than he did to quell the argument between the women, the physical encounter with the first female customer, and the last encounter with plaintiff. Reasonableness of conduct is the legal issue and the material facts upon which that determination is made are genuinely disputed.

At appellee’s cost, the summary judgment is REVERSED and the case is remanded for further proceedings.


text:
    M.A. FINANCIAL, INC., Plaintiff-Appellant, v. ACTION WEST, INC. and Fred M. Wiggins, Defendants-Appellees.
    No. 16414-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Aug. 22, 1984.
    Rehearing Denied Sept. 21, 1984.
    Writ Denied Nov. 16, 1984.
    Richard E. Hiller, Shreveport, for plaintiff-appellant.
    Evans, Feist, Auer & Keene by Frances 0. Allen, Shreveport, for defendants-appel-lees.
    Before HALL, MARVIN and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

The lessee of a Shreveport cocktail lounge appeals a judgment denying its demands to evict the operator of the lounge who had been occupying the lounge either as a sub-lessee or mere occupant for several years. We reverse and render judgment evicting the operator. La. CCP Arts. 4701-4735; CC Arts. 2685, 2686; Magnolia Petroleum Co. v. Carter, 2 So.2d 680 (La.App. 2d Cir.1941).

Plaintiff, M.A. Financial, Inc., is a corporation solely owned by Michael Roberts. That corporation leased the premises from others under a written lease for three years beginning January 30, 1979. The lease instrument also granted plaintiff the option of renewing the lease for an additional three years at an increased rental. At the time the lease was executed Michael Roberts owned Action West, Inc., which became the corporate operator of the lounge. At all times, Action West, Inc. paid the monthly rent due on the lease of January 30, 1979, which was recorded on the public records of Caddo Parish.

In late 1981, Michael Roberts sold all of the corporate stock of Action West, Inc. to Fred M. Wiggins, who, with Action West, Inc., is a defendant-appellee in these proceedings. Apparently no mention was made in the sale of the corporate stock about the lease of January 30, 1979, but after the sale, Action West, Inc. remained in the leased premises and continued to pay the rent to the owners of the premises. The lease states that the premises shall not be sublet or assigned without written consent of the owners-lessors of the premises. The owners did not object to the occupancy of Action West, Inc. and stated that they were “satisfied” with Action West, Inc. as a tenant in the premises and that they had no desire to evict Action West, Inc. The owners are not parties to this action but appeared as witnesses.

By letter of December 1, 1981, Action West (now Wiggins) sought to exercise the option to renew that was granted plaintiff, M.A. Financial (Roberts), in the 1979 lease. The owners “acknowledged” the “renewal ... as per the original lease.” This “renewal” was not recorded on the public records.

M.A. Financial (Roberts) obtained the written acknowledgment and acceptance by the owners and exercised the option to renew or extend the lease by a letter dated February 4, 1982:

“This letter confirms our conversation that the lease ... dated January 30, 1979, ... will be renewed in accordance with the terms of the lease ... at an increase ... rental ... for an additional three years.”

This letter was recorded on the public records. Action West (Wiggins) paid the increased monthly rental to the owners-lessors of the premises.

On August 7, 1982, Roberts (M.A. Financial) informed Action West, Inc. that its “month to month rental” was being terminated effective August 31, 1982. See Magnolia Petroleum Co., supra. On November 7, 1983, formal notice by certified mail was sent to Action West, Inc. as required by CCP Art. 4701. This action to evict was filed about two weeks later.

TRIAL COURT’S REASONS

Denying plaintiff’s demands, the trial court said that the owners “would rather continue to deal with Action West ...,” that eviction would create a “great problem for the owners,” and that courts should not “tell an owner who he can lease to and under what terms and conditions.”

THE LAW

M.A. Financial, Inc., as a lessee, is legally deemed to be an owner entitled to invoke eviction procedures against its occupant or sublessee. CCP Arts. 4704, 4702. CC Arts. 2685-2691. Occupant is defined as any person occupying immovable property by permission or accommodation of the “owner.” Action West, Inc., under the circumstances of this record, was an occupant who occupied the premises by permission or accommodation of the lessee-“owner” and without the duration of that occupancy being fixed. CCP Art. 4704, CC Art. 2685. The fact that the true owners-lessors were also pleased with Action West’s occupancy does not affect the relationship between Action West and plaintiff. If Action West is also considered as a lessee of plaintiff, the “lease” was not of fixed duration, and Action West remains a mere occupant by definition of the eviction statutes. CCP Art. 4704.

A [sublessee or occupant in an eviction proceeding cannot contest the title of plaintiff, its [sublessor or permittor. Magnolia Petroleum Co., supra. See also Norman v. Woods, 8 La.App. 184 (Orl.App. 1928) and authorities cited therein. The validity of plaintiffs lease from the true owners of the premises is not at issue under these circumstances. Even though Action West paid the rent that was owed by plaintiff under its written lease, Action West was occupying the premises on a month to month basis and not for a term of fixed duration. CC Art. 2685. Plaintiff was entitled to withdraw its permission by giving notice to terminate as required by CC Art. 2686. See also CCP Art. 4701. This notice was given by plaintiff.

Action West and Wiggins contended they were “fully and lawfully [the] occupants and lessees of the premises.” Action West, however, bases its alleged status on its continued occupancy and its attempt to exercise the option to renew the lease that was granted to plaintiff. Under these circumstances, the trial court erred in not ordering the eviction. CCP Art. 4732. Magnolia Petroleum Co., supra.

DECREE

The judgment appealed is reversed and defendants, Action West, Inc. and Fred M. Wiggins, are hereby ordered to deliver possession of the premises at municipal number 618 Commerce Street, Shreveport, Louisiana, to plaintiff, M.A. Financial, Inc.

All costs of these proceedings are assessed against defendants in solido.

REVERSED AND RENDERED.

      . Defendants' letter to each owner read:
      "RE: Lease Agreement of 618 Commerce Street between Jacob Wolchansky and Adelaide N. Ridgeway and M.A. Financial,
      Inc., Mike Roberts,
      Action West, Inc., and Fred Wiggins
      "Please be on notice that Action West and Fred Wiggins are exercising their option to renew the lease of 618 Commerce Street, known as Action West, in conformity with the terms of the original lease agreement of January 30, 1979. Further, the aforementioned exercise of the option has been hand delivered this 1st day of December, 1981."

      . Defendants’ letter attempting to exercise the option is quoted in footnote one and expressly refers to the lease of January 30, 1979, between the owners and M.A. Financial, Inc.