author: PER CURIAM. ERVIN, Chief Judge,

text:
    HAMPTON-CHRYSLER-PLYMOUTH-DODGE, INC., a Florida corporation, Appellant, v. Daris WHITE, Appellee.
    No. AS-488.
    District Court of Appeal of Florida, First District.
    April 11, 1984.

      Arthur C. Beal, Jr. of McConnaughhay, Roland & Maida, Tallahassee, for appellant.
    John R. Weed, Perry, for appellee.
   PER CURIAM.

Hampton Chrysler-Plymouth-Dodge, Inc. appeals from the trial court’s final judgment, entered pursuant to a jury verdict, awarding Daris White $5,000 for loss of use and $6,191.45 in damages for breach of warranty in regard to negligently done body repair work on White’s 1980 Cadillac Sedan DeVille. We find no error in the loss of use award but conclude that the damages for breach of warranty cannot be sustained. In particular, we find the trial court improperly permitted White to introduce testimony, over objection, as to the value of his car before and after it was repaired.

While the general rule in Florida is that the measure of damages for a tor-tious injury to a pleasure vehicle that may be repaired is the difference between the reasonable market value of that vehicle immediately before the accident and its reasonable market value immediately afterward, McMinis v. Phillips, 351 So.2d 1141 (Fla. 1st DCA 1977), this is not such a case and instead involves the measure of damages recoverable for defective repairs. Here, the damages recoverable amount to the “difference between the value of the vehicle in its defective condition and its value in the condition in which it would have been if the repairs had been properly performed, together with all other losses proximately resulting from the defective repair work, and which can be regarded as within the contemplation of the parties,” such as loss of use. 38 Am.Jur.2d, Garages and Filling and Parking Stations, § 80 (1968); also see Lynch v. Florida Mining & Materials Corp., 384 So.2d 325 (Fla. 2d DCA 1980); Pinellas County v. Lee Construction Co., 375 So.2d 293 (Fla. 2d DCA 1979). This difference is ordinarily measured by the reasonable cost of remedying the faulty work, Pinellas County, supra, and not a “before/after” valuation. To hold otherwise would punish Hampton not only for its defective performance in repairing the car but also for the loss of value occasioned by the wrecks that necessitated the repair work in the first place. Further, White has been amply recompensed for the period of time he was without the services of his' car. Since the properly admitted evidence shows that these negligently done repairs can be rectified by, at most, a further $750 in additional repairs, as Hampton concedes, we direct a remittitur reducing the damages for breach of warranty to $750. The loss of use award shall stand.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion.

JOANOS, J., and CHARLES E. MINER, Jr., Associate Judge, concur.

ERVIN, C.J., specially concurring and dissenting.

ERVIN, Chief Judge,

specially concurring and dissenting.

I agree with the majority that given the posture of this case, appellee elected as the measure of damages the cost to repair properly his motor vehicle which was required by the appellant’s defective repairs. In McMinis v. Phillips, 351 So.2d 1141 (Fla. 1st DCA 1977), we relied upon Restatement of Torts § 928 (1939), concerning the measure of damages to a bailed vehicle necessary to correct negligent repairs:

Where a person is entitled to a judgment for harm to chattels not amounting to a total destruction in value, the damages include compensation for
(a) the difference between the value of the chattel before the harm and the value of the harm or, at the plaintiffs election, the reasonable cost of repair or restoration where feasible, with due allowance for any difference between the original value and the value after repairs and
(b) the loss of use.

(e.s.) It is apparent from the above rule that the injured person must elect as to whether he will seek damages for the difference between the value of his chattel before the harm and its value thereafter, or seek the value of the reasonable costs of repairs. He is not entitled to both. In the present case the jury was instructed, without objection, as to the following elements of damage pertinent to appellee’s count sounding in breach of warranty:

You should consider the following elements: First, any damage to his 1980 Cadillac, the measure of such damages as the reasonable cost of repair, if it is practicable to repair the car, with due allowance for any difference between its value immediately before the repairs and its value after the repairs.
Second, you should also take into consideration any loss Plaintiff sustained by being deprived of the use of this car during the time reasonably required for its repair.

(e.s.). Accordingly, as the instruction given to the jury coincides with that portion of the Restatement which is applicable only to the reasonable costs of repairs, I agree with the majority that evidence of the value of the damaged car before and after it was repaired was not appropriately submitted to the jury. Were it a proper issue of submission, I consider that an owner is generally presumed competent to testify as to value of his personal property. Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983). This presumption, of course, may be rebutted by showing, for example, that the witness had no knowledge of the fair market value at the time of the occurrence of the harm. Id.

The difficulty I have with the majority’s opinion is its direction of a remittitur reducing the damages for breach of warranty to $750. I find no support in the record for that figure, an amount that was suggested by counsel for appellant in his brief. I would accordingly remand this cause for a new trial on the issue of damages for breach of warranty only. I otherwise concur with the majority in affirming that portion of the judgment awarding to appel-lee $5,000 in damages for loss of use of his automobile.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Dieudonne ST. LEGER and Marise Daz Mondestin, Appellants, v. Barbarito ARRECHEA, individually, Appellee.
    No. 83-2255.
    Court of Appeal of Florida, Third District.
    April 10, 1984.
    Jonathan Thiele, John R. Greenwood, Ira J. Kurzban, Miami, for appellants.
    Stephen T. Onuska, Miami, for appellee.
    Before BARKDULL and PEARSON, DANIEL and JORGENSON, JJ.
   PER CURIAM.

Affirmed. Firestone v. Firestone, 263 So.2d 223 (Fla.1972); Hamilton v. Flowers, 134 Fla. 328, 183 So. 811 (1938); Croft v. Edwards, 353 So.2d 669 (Fla. 1st DCA 1978); 59 Am.Jur.2d, Parties § 46; 61A Am.Jur.2d, Pleadings § 72; 40 Fla.Jur.2d, Pleadings § 71.


author:
CALOGERO, Justice.
     LEMMON, J.,

text:
    Raymond W. SANBORN v. OCEANIC CONTRACTORS, INC.
    No. 83-C-0966.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Byron J. Casey, III, New Orleans, for applicant.
    Arthur A. Leonard, John Galloway, McGlinchey, Stafford, Mintz & Cellini, New Orleans, for respondent.
   CALOGERO, Justice.

Raymond W. Sanborn is before this Court on writs, from lower court judgments dismissing his lawsuit against his former employer, Oceanic Contractors, Inc. (Oceanic), on the latter’s exception of no cause of action. He is seeking damages from Oceanic, claiming that eight months after his employment relationship with Oceanic had been terminated, Oceanic prevented him from working in the Middle East for another employer with whom he had contracted. Both lower courts found that plaintiff's petition and supplemental petitions did not allege facts upon which relief could be granted. This conclusion was based essentially on the finding that plaintiff had made no allegations that defendant either owed plaintiff a duty or breached any duty to plaintiff. Absent such allegations, the lower courts ruled that plaintiff had failed to state a cause of action, and consequently, that his suit should be dismissed.

For the reasons which follow, we affirm the finding that plaintiff’s petition does not state a cause of action, but reverse the judgment insofar as it dismissed plaintiff’s lawsuit. We remand the case to the district court.

It is well settled that the exception of no cause of action must be decided upon the face of plaintiffs petition alone, and that all well-pleaded allegations of fact are to be considered as true. The reviewing court must determine whether the law affords a remedy under the circumstances alleged, under any theory of the case.

Plaintiffs original petition made the following contentions: “on or about June 2, 1977 Raymond W. Sanborn entered into an employment contract with Oceanic Contractors, Inc. for an indefinite period of time”; with that Oceanic employment contract, a “work visa” was secured for plaintiff to work in Dubai, in the United Arab Emirates; “on July 29,1978 petitioner tendered his resignation to Oceanic Contractors, Inc.” effective September 30, 1978; “on June 17, 1979 Raymond W. Sanborn entered into an employment contract with Scimitar Oils Limited, S.A.”; “in order for petitioner to begin his employment with Scimitar” in Dubai “it was necessary for Oceanic Contractors, Inc. to release the ‘work visa’ previously issued to plaintiff in the name of Oceanic Contractors, Inc., in order for a new visa to be issued to him”; Scimitar “attempted to have the ‘work visa’ previously issued to petitioner released, in order that a new ‘work visa’ could be issued to petitioner in the name of and sponsored by Scimitar Oils Limited, S.A.”; “Oceanic Contractors, Inc. refused to release the said work visa”; “as a result of the refusal of Oceanic Contractors, Inc. to release the work visa issued to petitioner, said petitioner was unable to fulfill his employment agreement with Scimitar Oils Limited, S.A. as he was unable to have a work visa issued to him granting him permission to enter Dubai and work for said Scimitar Oils Limited S.A.” He itemized his damages as “loss of work, $20,400.00.”

In his first supplemental petition he contended additionally that “Oceanic Contractors, Inc. refused to release the said work visa” because “Oceanic Contractors did not desire to have Raymond W. Sanborn employed by Scimitar Oils”; he also said that he “contacted Oceanic Contractors in an attempt to have his work permit issued to him by Oceanic Contractors, Inc. cancelled so that he could begin employment with Scimitar Oils”; “all attempts made by plaintiff to have his work permit cancelled failed”; he stated further that “Scimitar Oils was advised by Oceanic Contractors that Mr. Sanborn’s work permit was held by Oceanic Contractors and that they would not release said. work permit and allow Mr. Sanborn to join Scimitar Oils even though Oceanic Contractors had terminated Mr. Sanborn’s employment approximately 6 months prior to that time.”

In his second supplemental and amending petition he added some additional paragraphs. He quoted “Rule 11 of the Immigration Laws of the United Arab Emirates, entitled Federal Rule No. (6) for the Year 1973 on the Matter of Immigration and Residency”; that rule provides essentially that the holder of a visa for employment for any person or organization “is prohibited from working for any other person or organization unless the written consent of that person or organization coupled with that of the Immigration and Naturalization Administration are given.” He also added a paragraph in which he said that “Oceanic Contractors, Inc. intentionally and knowingly interfered with plaintiff’s contractual relations with Scimitar Oils, by intentionally refusing to release plaintiff’s work permit so that he could begin work for Scimitar Oils.”

In response to these allegations, defendant filed an exception, of no cause of action. The trial court sustained the exception and dismissed plaintiff’s lawsuit. The Court of Appeal affirmed the trial court action. Sanborn v. Oceanic, 430 So.2d 232 (La. App. 4th Cir.1983).

On plaintiff’s application, we were prompted to grant writs, not because of his contention that his petition and supplemental petitions stated a cause of action, but rather, because it appeared from the entire record (not just plaintiffs petition and supplemental petitions, which alone are to be considered in ruling on an exception of no cause of action) that a properly amended petition might do so.

In addition to plaintiffs petition and supplemental petitions, the record contains defendant’s answers to plaintiffs pleadings, other pleadings by defendant, interrogatories and the answers thereto from both parties and the entirety of “Federal Rule No. (6) for the year 1973 on the Matter of Immigration and Residency” of the United Arab Emirates, as translated and offered by plaintiff. From these different factual sources, the following information, apparently available for proper assertion in an amended petition, emerges.

Eight and one-half months after the September 1978 termination of Sanborn’s employment with Oceanic, Sanborn entered an employment contract with Scimitar whereby he was to return to Dubai as Scimitar’s employee at a Processing Plant being built for Scimitar by Oceanic. In order for San-born to reenter Dubai and work for Scimitar there, a work visa had to be secured from the United Arab Emirates. Scimitar was advised by Oceanic that Sanborn’s work visa was still held by Oceanic and that they would not release it and allow Sanborn to join Scimitar, even though Oceanic had terminated Sanborn’s employment six months before.

Sanborn had obtained a work visa in 1977, when he went to Dubai to work for Oceanic. The name of the sponsoring, employer, Oceanic, was apparently duly entered on the visa.

Rule No. 16 of the Federal Rule No. (6) of the Immigration Laws of the United Arab Emirates, provides:

Every person who hires an alien has to present to the Administration of Naturalization and Immigration or Police Center in the District where the work is located, a resolution on the available forms within 48 hours from the time the alien reports to the job, and he has upon the termination of the services of the alien to present a resolution about that to the aforementioned administration or police center within 48 hours of the termination, (emphasis provided)

Notwithstanding Rule No. 16, Sanborn’s work visa, with Oceanic listed as the sponsoring employer, was not cancelled or revoked when Sanborn left Oceanic’s employ in September, 1978 (presumably because Oceanic did not process the appropriate forms within the 48 hour period after San-born’s employment with Oceanic had been terminated).

Rule No. 11 of the Federal Rule No. (6) of the Immigration Laws of the United Arab Emirates, provides:

If the visa is for a visit, the alien is prohibited from working in any part of the country with or without pay, or as owner of a business.
And if the visa is for employment for any person or organization, the holder is prohibited from working for any other person or organization unless the written consent of that person or organization coupled with that of the Immigration and Naturalization Administration are given.

As a consequence, after plaintiff had entered into an employment contract with Scimitar in June of 1979 to return to and work in Dubai, defendant Oceanic, plaintiff’s former employer, was contacted for its written consent. It was at that time that Oceanic refused to consent, notwithstanding that plaintiff’s employment with Oceanic had terminated almost nine months earlier. Oceanic expressed the sentiment that it simply did not want Sanborn working for Scimitar.

As a result of this attitude on Oceanic’s part, Sanborn was not able to obtain the necessary work visa to perform the services he had agreed to perform for Scimitar. Plaintiff’s suit seeks recovery of the $20,-400.00 in wages he would have earned had Oceanic not prevented him from working for Scimitar in Dubai.

Considering the above information appearing in the record, along with plaintiff’s petition and supplemental petitions, we conclude that notwithstanding that plaintiff has not heretofore done so, he is possibly, if not probably, able to state a cause of action in a properly amended petition.

La.C.C.P. art. 934 provides:

When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition,, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed, (emphasis provided)

The lower courts premised their decision to dismiss plaintiff’s petition on the exception of no cause of action on the absence of a duty on Oceanic’s part to release plaintiff so that he might work for another company: that is, to give their “written consent”, as is made necessary by Rule 11, of the United Arab Emirates Immigration Laws.

However, it appears that in a properly amended petition plaintiff may be able to assert Oceanic’s legal duty under Rule 16, requiring the processing of Sanborn's termination papers within 48 hours of the September 1978 employment termination. This legal duty, with the attendant consequence (had that duty been performed) that eight months later Sanborn would have been free of the requirement of Rule 11 (that he secure written consent of Oceanic), coupled with Louisiana’s strong public policy against employment contracts requiring an employer on termination not to engage in a competing business as the employee of another, may indeed support the duty on Oceanic’s part which the lower courts found lacking in the allegations of plaintiff’s petition.

Also, even if Oceanic had the right afforded by laws of the United Arab Emirates, not to consent to plaintiff's employment with Scimitar, the exercise of that right, without any benefit to Oceanic (and, of course, this latter requirement of absence of benefit would have to be proved) might constitute an actionable abuse of rights which would support an award of damages. Illinois Central Gulf Railroad Company v. International Harvester Company, 368 So.2d 1009 (La.1979); Morse v. J. Ray McDermott & Co., Inc., 344 So.2d 1353 (La.1977); Onorato v. Maestri, 173 La. 375, 137 So. 67 (1931); Higgins Oil & Fuel Co. v. Guaranty Oil Co., 145 La. 233, 82 So. 206 (1919); and Cueto-Rua, Abuse of Rights, 35 La.L.Rev. 965 (1975).

In summary, plaintiff has not adequately asserted in his petition and supplemental petitions a legal duty to plaintiff on the part of Oceanic to support a cause of action. Yet, the record including interrogatories and answers thereto as well as the text of the Immigration Laws of the United Arab Emirates, coupled with Louisiana’s strong public policy against noncompetition agreements (La.R.S. 23:921) suggests that he may be able to do so.

For the foregoing reasons the judgment of the district court and the Court of Appeal insofar as it sustained defendant’s exception of no cause of action is affirmed; insofar as it finally dismissed plaintiff’s petition it is reversed. Plaintiff is to be allowed thirty days from finality of this judgment within which to file another amending petition.

Decree

For the foregoing reasons, we affirm the lower court judgments insofar as they maintained defendant’s exception of no cause of action, but reverse them insofar as they dismissed plaintiff’s lawsuit. We remand the case to the district court to allow plaintiff thirty days from finality of this judgment within which to amend his petition.

AFFIRMED IN PART; REVERSED IN PART; REMANDED TO THE DISTRICT COURT.

LEMMON, J.,

concurs, agreeing with the majority’s reasoning as to abuse of right, but tending to the view that the petitioners sufficiently stated a claim for intentional interference with contractual relations (although the claim may well be subject to a valid defense on summary judgment or on the merits). However, plaintiff may state the claim more completely by supplemental petition on remand.

       Bailes, J. sitting for Justice Marcus.

      . Defendant had earlier filed an exception of no cause of action which had also been maintained, and on that occasion plaintiff was given leave to amend his petition. La.C.C.P. art. 934.

      . The United Arab Emirates Immigration laws were translated and, as such, introduced in evidence by plaintiff at the hearing on the cxccption of no cause of action. Defendant objected to plaintiff’s translation of the provisions.

      . Plaintiff has already amended his petition twice, once by leave of court after an exception of no cause of action had been sustained. And while we recognize that we arc, perhaps, a bit generous to plaintiff’s counsel allowing another amendment of the petition, in view of the strong policy which favors allowing litigants their day in court, we deem it preferable to allow another amendment rather than dismiss what may be a valid cause of action, simply because a litigant’s attorney has not been able to state it properly in the petition.

      . La.R.S. 23:921 provides:

        No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract or employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years, (emphasis provided)

        See also: Orkin Exterminating Company v. Foti, 302 So.2d 593 (La. 1974) wherein the Court noted that the basis of the public policy against noncompetition agreements "is the right of individual freedom and of individuals to better themselves in our frcc-cntcrprisc society, where liberty of the individuals is guaranteed.”

      . Plaintiff has argued in both lower courts that his petition and supplemental petitions state a cause of action for tortious interference with contracts. Such a cause of action has been rejected by this Court in Forcum-James v. Duke Transportation, 231 La. 953, 93 So.2d 228 (1957). See also Kline v. Eubanks, 109 La. 241, 33 So. 211 (1902). However, there have been recent expressions by some members of this Court that, in a case squarely presenting the issue, Forcum-James should be re-examined. Moss v. Guarisco, 412 So.2d 540 (La.1982) and Desormeaux v. Central Industries Company, Inc., 337 So.2d 225 (La.1976). As this case is presently before us, it does not present the issue (especially considering the state of the record) and an opinion on the subject at this time would be advisory at best. However, were plaintiff to allege and prove defendant intentionally and willfully interfered with plaintiff's contract with Scimitar, that such intentional interference was the proximate cause of the failure of the contract, and that defendant’s actions were motivated by malice, or at least not by a significant interest of its own, he might well be entitled to relief.


author: CALOGERO, Justice. MARCUS, Justice

text:
    UNITED CREDIT PLAN OF GRETNA v. Richard PULLEN and Bobalin Pullen.
    No. 83-C-2011.
    Supreme Court of Louisiana.
    Feb. 27, 1984.

      Irl R. Silverstein, Gretna, for applicant.
    John F. Rowley, Dist. Atty., Marcel J. Gueniot, Asst. Dist. Atty., William H. Egan, Chalmette, Richard K. Dimitry, New Orleans, for respondents.
   CALOGERO, Justice.

This case involves a contest over the proceeds of a foreclosure sale, between a conventional mortgagee (relative to a wife’s separate property), and a judgment creditor with an earlier inscribed judicial mortgage (against the husband).

On August 11, 1978, a judicial mortgage bearing against Richard Pullen took effect upon recordation in St. Bernard Parish of a $1445.00 judgment in favor of Southern Baptist Hospital. The judgment came out of a lawsuit to recover on a medical bill incurred when Richard Pullen’s wife, Boba-lin Pullen, gave birth to a child at Southern Baptist Hospital in New Orleans.

On April 6, 1979, United Credit Plan of Gretna loaned Bobalin Pullen and Richard Pullen $31,900.00. The loan was secured by a conventional mortgage on property located at 2204 Farmsite Road, Violet, Louisiana in St. Bernard Parish. That was the separate property of Bobalin Pullen which she had acquired by judgment of possession in the succession of one Barbara Duhe. Following default in the payments due under the mortgage, United Credit foreclosed on December 17, 1979. On March 5, 1980, United Credit bought the property in at the sheriffs sale for $28,-334.00, the amount due on its mortgage.

Southern Baptist Hospital intervened to have the sheriffs sale set aside because the sale did not bring sufficient monies to pay off the outstanding mortgages, or alternatively, to be paid by United Credit the $1,445.00 owed on the hospital’s judgment against Richard Pullen. The district court refused to set aside the sale of the property, but did order United Credit to' pay Southern Baptist Hospital the.amount outstanding on their judgment. United Credit appealed.

The Court of Appeal found that the property in question was the separate property of Bobalin Pullen, which at the time the mortgage was' confected (April 16, 1979) was not available to community creditors to satisfy a community obligation incurred by the wife. However, the Court of Appeal went on to find that, at the time of the judicial sale (March 5, 1980), the law regarding the availability of a wife’s separate property to satisfy a community debt incurred by her, had changed. Under the law as it existed in March of 1980, and today, creditors are allowed to satisfy a community obligation not only from community property but also from the separate property of the spouse, including a wife, who has incurred the debt. Because “the obligation to pay the hospital clearly arose after Bobalin Pullen was admitted to Baptist for the delivery of the couple’s child and received medical services there” [435 So.2d 1055 at 1057, n. 3 (La.App.1983) ], the appellate court concluded “that Southern Baptist Hospital had a judicial mortgage against the Pullens which on March 3, 1980, was superior to the mortgage of the seizing [conventional mortgage] creditor”, [435 So.2d at 1057], a creditor who held a mortgage made by the wife on her separate property, (emphasis provided.)

According to United Credit the Court of Appeal was apparently applying in some sort of retrospective manner a 1980 change in the law which freed a wife’s separate property for the involuntary satisfaction of community debts incurred by her. United Credit sought writs contending that the Court of Appeal erred in “giving retroactive application to La.C.C. art. 2345.” This question of the retroactivity of La.C.C. art. 2345 may yet have to be resolved, and we might conjure up hypothetical cases in which retroactive application, or not, would be dispositive in a given case. However, that is not the case here. Rather, this case can be resolved simply on the matter of ranking of mortgages, and by affording appropriate respect to the public records doctrine.

By virtue of its outset inscription of the judgment against Richard Pullen, does Southern Baptist have a ranking lien in competition with United Credit’s recorded conventional mortgage against the wife and her separate property? The answer is* no.

A judicial mortgage is “that resulting from [a] judgment ..., in favor of the person obtaining [it].” La.C.C. art. 3321. La.C.C. art. 3328 provides that “(t)he judicial mortgage may be enforced against all the immovables which the debtor actually owns and may subsequently acquire.” (emphasis provided.) The only property affected by the judicial mortgage resulting from Southern Baptist’s $1,445.00 judgment against Richard Pullen was property owned or to be acquired by that named judgment debtor, Richard Pullen.

A conventional mortgage is “a contract, by which a person binds the whole of his property, or a portion of it only, in favor of another, to secure the execution of some engagement, but without divesting himself of the possession.” La.C.C. art. 3290. “Conventional mortgages can only be agreed to by those who have the power of alienating the property which they subject to them.” La.C.C. art. 3300. In this case Bobalin Pullen and she alone was the party who mortgaged her separate property.

Applying the foregoing legal principles, the 1978 judgment against the husband (and its recordation) resulted in a lien on what he owned and on what he might later own, but the creditor got no lien against property belonging to anyone other than that debtor. La.C.C. art. 3328. The judicial mortgage against the property of Richard Pullen did not attach to the separate property of his wife. Furthermore, before 1980 Mrs. Pullen’s separate property was not exposed to the satisfaction of her husband’s judgment debt, even if a community obligation and incurred by her, absent a community property partition and express acceptance of community debts. La.C.C. art. 2403 and 2410 (1870).

Effective January 1, 1980, however the immediately preceding statement is no longer so. La.C.C. arts. 2403 and 2410 were repealed and La.C.C. art. 2345 was enacted, which provides that “[a] separate or community obligation may be satisfied during the community property regime from community property and from the separate property of the spouse who incurred the obligation.” So, after 1980 Bo-balin Pullen’s separate property is exposed to the satisfaction of a community debt incurred by her.

With the change in the law, Southern Baptist Hospital may have secured a right which did not formerly exist: that is, to satisfy a community debt incurred by the wife from the wife’s separate property. Had the judicial mortgage been recorded in both names, Richard and Bobalin Pullen, on August 11, 1978, and the change in the law were simply to have made formerly unavailable property of the judgment debtor available to creditors, Southern Baptist’s claim to a portion of the proceeds of the sale might have more merit. However, in this case, Southern Baptist Hospital’s recorded judgment was only against Richard Pullen. Bobalin Pullen’s obligation on this community debt has not produced a judgment against her. Consequently no lien against her separate property has arisen out of it. At best we can speculate about her separate responsibility, since the unpaid bill to Southern Baptist was one for medical treatment she and her newborn daughter received.

Southern Baptist might even argue (whether plausible or not) that a judicial mortgage attached to the wife’s separate property when the new law took effect on January 1, 1980, and that the court should, based upon a January 1, 1980 change in the law, constructively add the name of Boba-lin Pullen to Southern Baptist Hospital’s existing recorded inscription against Richard Pullen. This would still avail them naught for they are in competition with the holder of a prior conventional mortgage which specifically bears against Bobalin Pullen and her separate property, and which predates the change in the law.

A conventional mortgagee cannot be made to look beyond the public record, and to have to speculate about existing liens or judicial mortgages. This is especially so in a case like the one under consideration where the right of the creditor to seize the wife’s separate property did not even arise until after the conventional mortgage was recorded. Therefore, even assuming that the 1978 judicial mortgage against Richard Pullen should somehow effectively be recognized as a judicial mortgage against the wife’s separate property, the earliest effective date should surely be no sooner than January 1, 1980, the date when the law was changed to afford Southern Baptist its newly acquired right. And at that time United Credit already had an existing conventional mortgage on the property, recorded on April 6, 1979.

The rank of a creditor’s claim is established by the priority of its registry in the appropriate public record. La.C.C. art. 3329; La.R.S. 9:2721; Quality Finance Co. of Donaldsonville, Inc. v. Bourque, 315 So.2d 656 (La.1975); McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). Accordingly, United Credit’s mortgage ranked any claim of Southern Baptist Hospital and the proceeds of the foreclosure sale are not subject to Southern Baptist’s claim for the satisfaction of its judgment. The judgments of the lower courts to the contrary are therefore in error.

Decree

The judgments of the district court and the Court of Appeal, insofar as they ordered United Credit of Gretna to pay Southern Baptist Hospital $1445.00, the amount of the hospital’s judicial mortgage against Richard Pullen, are reversed. Southern Baptist’s intervention is dismissed. United Credit’s writ of mandamus is made peremptory and the inscription in MOB 164 Folio 86, Clerk’s Office for the Parish of St. Bernard, of the judgment favorable to Southern Baptist Hospital against Richard Pullen is cancelled only insofar as it may be asserted to apply to the property described as Lot 13, Section 12 Poydras Farm Site and the improvements thereon bearing the Municipal Number 2204 Farmsite Road in Violet, Louisiana, St. Bernard Parish.

JUDGMENT REVERSED; INTERVENTION DISMISSED; WRIT MADE PEREMPTORY.

BLANCHE, "J., concurs in the result.

MARCUS, J., concurs and assigns reasons.

MARCUS, Justice

(concurring).

Southern Baptist is a creditor on a community debt incurred by the wife. Southern Baptist obtained a judgment on this debt against the husband and recorded it. Under the law in effect at that time, the debt could not be satisfied out of the wife’s separate property. However, under the law, effective January 1, 1980, this debt could be satisfied from community property and from separate property of the wife, the spouse who incurred the debt. La. Civ. Code art. 2345. This is so even though the judgment was taken only against the husband because the debtor was the community, not the husband.

However, in this case, Southern Baptist was outranked on the wife’s separate house by United Credit, mortgagee on the house, although Southern Baptist’s judicial mortgage predated United Credit’s mortgage. At the time United Crédit granted the wife the mortgage, Southern Baptist could not have satisfied its mortgage from the wife’s separate property. Thus, United Credit's mortgage was superior to Southern Baptist’s mortgage as to the wife’s separate house. The law that now permits a creditor of the community to satisfy its debt out of a spouse’s separate property cannot be applied retroactively to deprive United Credit of its vested right to outrank Southern Baptist on the house. Hence, I respectfully concur in the result reached by the majority.

      . The mortgage certificate which the sheriff had secured in connection with the sale, listed two outstanding mortgages against Richard Pullen, one favoring Allstate Insurance and one favoring Southern Baptist Hospital. It was later determined that Allstate's judgment against Richard Pullen had been satisfied.

      . Il is worth noting, however, that the judgment was not taken against Bobalin Pullen but against Richard Pullen alone and the judicial mortgage inscription bore against Richard Pul-len alone.

      . It is true, of course, that United Credit had Richard Pullen as well as Bobalin Pullen sign the notarial act as mortgagors of the Farmsitc Road ■ property. (This presumably is what caused the sheriff's office to run mortgage certificates on both Richard and Bobalin Pullen.) That protective device on the part of the lender (i.c., having Richard join Bobalin in the notarial act by which Bobalin mortgaged her separate property) was mere surplusage. It had no legal effect either to make Richard a mortgagor of the property he did not own, or to give him any interest in it.

      . La.C.C. art. 2403 before its repeal in 1980 provided:
      In the same manner, the debts contracted during the marriage enter into the partnership or community of gains, and must be acquitted out of the common fund, whilst the debts of both husband and wife, anterior to the marriage, must be acquitted out of their own personal and individual effects.
      La.C.C. art. 2410 before its repeal in 1980 provided:
      Both the wife and her heirs or assigns have the privilege of being able to exonerate themselves from the debts contracted during the marriage, by renouncing the partnership or community of gains.


author: CALOGERO, Justice. DIXON, Chief Justice

text:
    STATE of Louisiana v. Wandall W. COODY.
    No. 83-KK-1369.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
    Rehearing Denied April 13, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Johnny C. Par-kerson, Dist. Atty., Allen Harvey, Asst. Dist. Atty., for applicant.
    Paul Henry Kidd, Kidd and Kidd, Monroe, for respondent.
   CALOGERO, Justice.

Wandall W. Coody, Sheriff of Morehouse Parish, was charged in a two count bill of information with malfeasance in office, in violation of La.R.S. 14:134(3), and injuring public records, a violation of La.R.S. 14:132. He filed a motion to quash the bill of information contending that the two counts contained in the bill of information are “duplicitous in that the two counts actually constitute only a single offense.” The trial court, after conducting a hearing on the motion to quash, concluded that the two counts were duplicitous and thus granted defendant’s motion. The Court of Appeal denied the state’s request for review finding no error in the trial court’s ruling. We granted the state’s application for writs.

Because the trial court granted the motion to quash, the case has yet to be tried. Thus, there is no trial evidentiary record. Nonetheless, to better understand the limited legal issue involved it is necessary that we review the state’s • contentions. Presumably the state seeks to prove the following facts:

On April 11, 1981, two brothers were arrested for attempted theft. The arresting officers issued a summons, completed an arrest report and recorded the arrests in the Sheriff department’s arrest log book. Shortly thereafter one of the arrestees telephoned Sheriff Coody and asked him to look into the matter. The Sheriff asked his chief deputy to investigate the incident and give him an account of the circumstances surrounding the arrest. The deputy reported his findings to the Sheriff who then concluded that there were insufficient grounds to charge the arrestees. At that time the deputy informed the Sheriff that the arrestees had been booked and their names recorded in the booking log. Pursuant to Sheriff Coody’s instructions the deputy removed from the booking log the page containing the names of the arrestees. Some months later the arresting officers were trying to determine the status of the ease when it was discovered that the arres-tees’ names were missing from the booking log. The problem was reported to the District Attorney’s office which then issued subpoenas for the booking log and the investigative file on the arrestees. The log which was produced had no reference to the arrests of the two brothers. Several days later the deputy who had removed the page from the booking log found all records of the arrest stored away in his home.- Shortly thereafter Sheriff Coody, defendant in these proceedings, was charged with malfeasance in office and injuring public records.

The bill of information by which defendant was charged reads:

... Wandall Coody ... on or about the 13th day of April, 1981, in the Parish and State aforesaid, did then and there wil-fully and unlawfully:
COUNT # 1: commit the crime of malfeasance in office when as a public officer, being the Sheriff of the Parish of Morehouse, he did knowingly permit another public employee, under his authority, namely Chief Deputy Sheriff Allen Brown, to intentionally refuse or fail to perform a duty lawfully required of him, namely his lawful duty pursuant to Code of Criminal Procedure Article 229, by knowingly permitting the aforementioned Deputy as officer in charge of the jail or police station, to intentionally fail to notify the District Attorney of the bookings of Manzie Reese and Mizell Reese, persons booked on or about April 11, 1981 for a violation of State statute, namely, R.S. 14:67 by intentionally permitting the aforementioned Deputy to fail to communicate the bookings to the District Attorney, by removing the names of the aforementioned Manzie Reese and Mizell Reese from the booking document kept pursuant to Code of Criminal Procedure Article 228, and by secreting all records of the arrest of Manzie Reese and Mizell Reese for six months, contrary to the provisions of R.S. 14:134(3);
COUNT # 2: commit the crime of injuring public records when he did intentionally remove, destroy, alter, and falsify a record of document, namely portions of the booking log maintained by the Sheriffs Office, Parish of Morehouse, filed or deposited, by authority of law, namely Code of Criminal Procedure Article 228, in a public office, namely the office of the Sheriff, Parish of Morehouse, contrary to the provisions of R.S. 14:132.

Stripped of its nonessential language, and paraphrased, the bill of information can reasonably be read as stating the following:

Count 1: Defendant did commit the crime of malfeasance 1) by permitting the Chief Deputy intentionally to fail to notify the District Attorney of the bookings, 2) by removing the names from the booking document, and 3) by secreting all records of the arrest(s) for six months.
Count ■ 2: Defendant did commit the crime of injuring public records by intentionally removing (or destroying, altering or falsifying) a record, namely, portions of the booking log.

Both state and federal constitutions provide that no person shall twice be put in jeopardy of life or liberty for the same offense. U.S. Const. Amend. V; La. Const, art. 1, § 15. The double jeopardy clause protects the accused against multiple punishment for the same offense as well as a second prosecution for the same offense after acquittal or conviction. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969); State v. Vaughn, 431 So.2d 763, 767 (La.1983); State v. Doughty, 379 So.2d 1088, 1090 (La.1980). In Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306 (1932), the established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated as follows:

The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not...

This rule is constitutionally required of the states. Brown v. Ohio, 432 U.S. 161, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); State v. Doughty, 379 So.2d at 1090.

This Court has also utilized the “same evidence” test, which was articulated as follows, in State v. Steele, 387 So.2d 1175 at 1177 (La.1980):

... If the evidence required to support a finding of guilt of one crime would also have supported conviction for the other, the two are the same under a plea of double jeopardy, and a defendant can be placed in jeopardy for only one. The test depends on the evidence necessary for a conviction, not all the evidence introduced at trial.

Defendant argues that the elements of the offenses “overlap” and that the alleged injury to public records is the means by which the alleged malfeasance was committed. Thus, proof of malfeasance based on this conduct would necessarily have supported a conviction for injuring public records. The state, on the other hand, contends that the malfeasance charge arose as a result of defendant’s having knowingly permitted a deputy to withhold from the district attorney the fact that arrests and bookings of the two men had taken place. The state contends that the reference in the malfeasance count to removal of names from the booking log is mere surplusage and not necessary to a conviction for malfeasance.

Based upon the bill of information it appears that the state will attempt to prove count one, malfeasance, in one or more, or all of three ways: 1) permitting the Chief Deputy to neglect to notify the District Attorney of the bookings; 2) removing portions of the booking log; and or 3) secreting all records of the arrest for six months.

They will also attempt to prove Count 2 by showing that the defendant did intentionally remove- portions of the booking log.

Thus, according to the bill of information as written, defendant runs the risk of being convicted under each count for the identical conduct: namely, removing portions of the booking log. Each offense will not require proof of an additional fact which the other does not, for while málfea-sance as here charged does require proof of an additional fact that injuring public records does not, (i.e., that defendant is a public officer), injuring public records does not require an additional fact that malfeasance does not. Injuring public records requires proof of the singular fact that public records were injured, a fact necessarily part of the malfeasance count as charged.

Apparently, the trial judge interpreted the bill of information in such manner and understandably assumed that the state intended to prove that defendant tampered with the booking log in support of both the malfeasance and injuring public records charges. Thus, in quashing the bill of .information the trial court noted that “the evidence which would be required to support a conviction under Count One of the Bill of Information would be sufficient to support a conviction under Count Two.”

The trial judge in this case was faced with a difficult legal decision prompted by a poorly drawn bill of information. Nonetheless, we find that it was unnecessary for him to have quashed the entire bill of information. Rather, he should have quashed only that part of the bill of information which threatens defendant with two convictions for precisely the same conduct. Specifically, he should have quashed part two of count one. That part of count one is a conjunctive allegation. It charges removal of names from the booking log as a means of committing malfeasance in addition to permitting the Chief Deputy to fail to notify the District Attorney of the bookings and secreting all records of the arrests for six months.

With the removal of this defect the state will be confined to proof of malfeasance based on defendant’s alleged actions in 1) permitting the Chief Deputy intentionally to fail to notify the District Attorney of the bookings, and/or 2) secreting all records of the arrests for six months. Malfeasance in office based upon one or both of these actions will not require proof that defendant ordered alteration of the booking log, which, of course, is the essence of count two. Conversely, injuring public records will not require proof that defendant permitted his Chief Deputy to fail to notify the District Attorney of the bookings or that he secreted all records of the arrest.

Decree

For the foregoing reasons the decision of the district court is affirmed insofar as it in essence strikes part two of count one of the bill of information. It is reversed however insofar as it quashes the entirety of the bill of information. The case is remanded to the district court for further proceedings.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

DIXON, C.J., concurs with reasons.

MARCUS, J., concurs for reasons assigned by DIXON, C.J.

DIXON, Chief Justice

(concurring).

I respectfully concur.

Two separate offenses were charged, one in each count. The first one charged (with some surplusage) the failure to report a booking to the district attorney in violation of C.Cr.P. 229 and R.S. 14:134(3). The second offense charged the injuring of public records in violation of R.S. 14:132. Each is a different offense and each contains elements not found in the other.

The removal or concealment of the booking record was relevant, but not essential to proving that defendant failed to notify the district attorney of the booking, as required by C.Cr.P. 229.

      . La.R.S. 14:134 provides:
      Malfeasance in office is committed when any public officer or public employee shall:

      (3) Knowingly permit any other public officer or public employee, under his authority to intentionally refuse or fail to perform any duly lawfully required of him, or to perform any such duly in an unlawful manner,
      Any duty lawfully required of a public officer or public employee when delegated by him to a public officer or public employee shall be deemed to be a lawful duly of such public officer or employee. The delegation of such lawful duly shall not relieve the public officer or employee of his lawful duty.

      . I.a.R.S. 14:132 provides:
      Injuring public records is the intentional removal, mutilation, destruction, alteration, falsification, or concealment of any record, document, or other tiling, filed or deposited, by authority of law, in any public office or with any public officer.
      Whoever commits the crime of injuring public records shall be imprisoned for not more than five years with or without hard labor or shall be fined not more than five thousand dollars or both.

      .Although couched in terms of "duplicity" by the trial court and defendant, it is clear that the issue involves double jeopardy. The trial court ■determined that, assuming the stale can prove what they charge in the two counts, they will be supporting each count essentially with proof of the same conduct.

      . It was not unreasonable for the trial judge to have read "removing the names from the booking document” (count one), as essentially the same contention as removing, etc., portions of the booking log (count two).

      .This conduct is alleged to be a violation of the duty imposed by La.C.Cr.P. art. 229 which provides:
      The officer in charge of the jail or police station shall immediately inform the prisoner booked:
      (1) Of the charge against him;
      (2) Of his rights to communicate with and procure counsel; and
      (3) Of his right to request a preliminary examination when he is charged with a felony.

        The officer in charge shall, within forty-eight hours from the time of the booking, notify the district attorney in writing of all persons booked for violation of slate statutes, and shall furnish without cost a certified copy of any booking entry to any person requesting it. (emphasis provided.)

      . Defendant is apparently being charged as a principal with respect to removing portions of the booking log, for the state contends in brief that the Chief Deputy removed the page from the log at defendant’s direction.

      . The definition of injuring public records in La.R.S. 14:132 includes removal, in addition to mutilation, destruction, alteration, falsification, or concealment.

      . La.C.Cr.P. art. 480 provides for conjunctive charging. That article states:
      If an offense may be committed by doing one or more of several acts, or by one or more of several means, or with one or more of several intents, or with one or more of several results, two or more of such acts, means, intents, or results may be charged conjunctively in a single count of an indictment, or set forth conjunctively in a bill of particulars, and proof of any one of the acts, means, intents, or results so charged or set forth will support a conviction.


author: LEMMON, J.,

text:
    STATE of Louisiana v. Kenneth LaSALLE.
    No. 84-KK-0401.
    Supreme Court of Louisiana.
    March 23, 1984.
   In Re: Kenneth LaSalle, applying for Writ of Certiorari and Prohibition to Review the ruling of the Fourth Circuit Court of Appeal, Number KA-1072; to the Criminal District Court, Parish of Orleans, Number 295-446.

Case below: 438 So.2d 1109.

Granted. The case is remanded to the Court of Appeal for an opinion setting forth the facts, all legal principles applicable to the decision in the case and reasons for judgment.

LEMMON, J.,

concurs. Because the Court of Appeal, without hearings or opinion, summarily reversed a ruling that had suppressed evidence in an apparently close case, we granted defendant’s application and ordered the .Court of Appeal to give the matter full consideration and to render an opinion. The one-sentence conclusory statement by the Court of Appeal on remand did not accomplish the purpose of our order.


author: DENNIS, J.,

text:
    STATE of Louisiana v. Bernard HAYES, Jr.
    No. 84-K-0436.
    Supreme Court of Louisiana.
    March 23, 1984.
   In re: Bernard Hayes, Jr. applying for writ of certiorari or review to Fourth Circuit Court of Appeal No. KA-0371, from Criminal District Court, Parish of Orleans No. 281-555.’

Case below: 446 So.2d 1233.

Denied.

DENNIS, J.,

concurs in the denial of relator’s application at this time, but is of the. opinion that this Court should not consider its merits until the relator is resen-tenced. At that time, when both the sentence and conviction are final, the relator may reurge his petition for review.


author: CALOGERO, DENNIS and LEMMON, J.J.,

text:
    Petition for Concursus In re James W. HAMILTON v. Delia Johnson HAMILTON, Maude Hamilton Davis, and Sandra Hardy.
    No. 84-C-0455.
    Supreme Court of Louisiana.
    March 23, 1984.
   In Re: Joann Hamilton, applying for writ of Certiorari and/or Review to the Fourth Circuit Court of Appeal, Number CA-1067; Civil District Court, Parish of Orleans, Number 81-17488 Division “H”.

Case below: 446 So.2d 463.

Denied. The result is correct.

CALOGERO, DENNIS and LEMMON, J.J.,

concur, being of the opinion that the statute in question prohibits recovery by a beneficiary adjudged guilty of an intentional act which results in his criminal responsibility for the insured’s death.


text:
    STATE of Louisiana v. Joseph NUCCIO, Doris Milazo and Irwin Corky.
    No. 84-KD-0458.
    Supreme Court of Louisiana.
    April 2, 1984.
   PER CURIAM.

Granted. When a party timely appeals, the failure of the clerk of court to lodge the record in the appellate court timely does not defeat the appeal. Accordingly, the appeal is reinstated, and the clerk of the district court is ordered to lodge the appeal in this court within 30 days.


text:
    Clifton CLAUSE, Jr. v. Eldie F. MANUEL.
    No. 84-C-0283.
    Supreme Court of Louisiana.
    April 2, 1984.
   In Re: Clifton Clause, Jr., applying for Writs of Certiorari, or Review to the Third Circuit Court of Appeal, Number 83-420, Twenty-Seventh Judicial District Court, Parish of St. Landry, Number 17,711.

Case below: 442 So.2d 905.

Denied.

LEMMON, J.,

concurs. The Court of Appeal has merely reversed a summary judgment. Relator’s arguments can be better evaluated after trial on the merits.

CALOGERO, MARCUS and BLANCHE, JJ., would grant the writ.


text:
    Samuel L. LIEBER v. Charles M. HAMEL, et al.
    No. 84-C-0181.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Samuel L. Lieber, applying for writs of prohibition, mandamus, and certio-rari, review, to.the Second Circuit Court of Appeal, No. 15829-CA, from the First Judicial District Court, Parish of Caddo, No. 184211.

Case below: 446 So.2d 1240.

Denied.

DIXON, C.J., recused.


text:
    Samuel L. LIEBER v. Charles M. HAMEL, et al.
    No. 84-C-0131.
    Supreme Court of Louisiana.
    Feb. 27, 1984.
   In re Charles M. Hamel, et al., applying for writ of certiorari, or writ of review, to the Court of Appeal, Second Circuit, No. 15829-CA; Parish of Caddo, 1st Judicial District Court, No. 184211.

Case below: 446 So.2d 1240.

Denied.

DIXON, C.J., recused.


text:
    STATE of Louisiana ex rel. Joseph V. FOSTER, Jr., v. Abe ROSS, Warden, Livingston Parish Jail.
    No. 84-KH-0582.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Joseph V. Foster, Jr., applying for writ of habeas corpus to the 21st Judicial District Court, Parish of Livingston.

Granted for the sole purpose of transferring to the Court of Appeal, First Circuit, for consideration.


text:
    STATE of Louisiana v. Leslie LOWENFIELD.
    No. 84-KH-0622.
    Supreme Court of Louisiana.
    April 2, 1984.
   In re Leslie Lowenfield, applying for remedial writ to the 24th Judicial District Court, Parish of Jefferson.

Denied. Review of the ruling complained of is presently pending in the 5th Circuit Court of Appeal.


text:
    STATE of Louisiana v. Leslie LOWENFIELD.
    No. 84-KH-0671.
    Supreme Court of Louisiana.
    April 5, 1984.
   In re Leslie Lowenfield, applying for remedial writs, 24th Judicial District Court, Parish of„Jefferson, Court of Appeal, Fifth Circuit.

Granted. This application is transferred to the 5th Circuit, Court of Appeal.


text:
    TEACHERS’ RETIREMENT SYSTEM OF LOUISIANA, et al. v. LOUISIANA STATE EMPLOYEES RETIREMENT SYSTEM.
    No. 84-C-0344.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Teachers’ Retirement System of Louisiana, Vista Mortgage and Realty, Inc, Lomas and Nettleton Company and The Constantin Foundation, applying for writ of certiorari to the First Circuit Court of Appeal, No. 83-CA-0265, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 228-826.

Case below: 444 So.2d 193.

Granted.


text:
    Randall Albert LeRAY v. ST. PAUL FIRE AND MARINE INSURANCE COMPANY, et al.
    No. 84-C-0486.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Edwards Laboratories, Division of American Hospital Supply Corporation, applying for writ of certiorari and/or review to the First Circuit Court of Appeal, No. 82-CA-0843; 19th Judicial District Court, Parish of East Baton Rouge, No. 242164 Division "I”.

Case below: 444 So.2d 1252.

Granted.


text:
    Shelia B. CRESCIONNE as Tutrix for Jean Claude Crescionne, Jr. and Michelle Crescionne v. LOUISIANA STATE POLICE RETIREMENT BOARD.
    No. 84-C-0510.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Sara G. Crescionne, applying for writs of certiorari and review, from the First Circuit Court of Appeal, No. 83-CA-0311, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 261540, Division “J”.

Case below: 447 So.2d 20.

Granted.


text:
    James C. STEELE, III, et ux. v. Eloise DENNING, et al.
    No. 84-C-0576.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re James C. Steele, III and Gloria Dyke Steele, applying for certiorari, or writ of review to the Court of Appeal, Second Circuit, No. 15929-CA; 3rd Judicial District Court, Parish of Lincoln, No. 30689.

Case below: 445 So.2d 94.

Granted.


text:
    Henry R.J. COURNOYER v. EXECUTIVE OFFICE CENTERS, INC.
    No. 84-C-0559.
    Supreme Court of Louisiana.
    April 13, 1984.
    Reconsideration Denied May 11, 1984.
   In re Henry R.J. Cournoyer, applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-0786, Parish of Orleans, Civil District Court, No. 83-2513.

Case below: 445 So.2d 6.

Granted. The judgment of the court of appeal is reversed. The judgment of the district court is reinstated. The case is remanded to the district court for further proceedings.


text:
    Sam BELL v. JET WHEEL BLAST, DIVISION OF IRVING INDUSTRIES.
    No. 83-CQ-2158.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Certification from the United States Court of Appeals, Fifth Circuit, No. 82-3364, 717 F.2d 181.

Granted.


text:
    STATE of Louisiana ex rel. Nicholas Ocasio GARCIA, v. Charles C. FOTI, Jr.
    No. 84-KH-0703.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Nicholas Ocasio Garcia, applying for remedial writ, to the Criminal District Court, Parish of Orleans, No. 297-033.

Granted and transferred to Court of Appeal for action.


text:
    Sheila B. CRESCIONNE, as Tutrix for Jean Claude Crescionne, Jr. and Michelle Crescionne v. LOUISIANA STATE POLICE RETIREMENT BOARD.
    No. 84-C-0631.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Louisiana State Police Retirement Board, applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0311, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 261-540.

Case below: 447 So.2d 20.

Granted.


text:
    STATE of Louisiana v. William LALANNE.
    No. 84-KH-0660.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re William Lalanne, applying for remedial writs to the Fourteenth Judicial District Court, Parish of Calcasieu, No. 2858-84.

Transfer to Court of Appeal, 3rd Circuit.


text:
    STATE of Louisiana v. Reginald DUNCAN.
    No. 84-KH-0720.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re' Reginald Duncan, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 298054.

Transferred to 4th Circuit, Court of Appeal, for consideration.


text:
    LOUISIANA STATE BAR ASSOCIATION v. O. Romaine RUSSELL.
    No. 83-OB-1465.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re O. Romaine Russell, applying for reinstatement to the Louisiana State Bar Association.

The applicant is reinstated and readmitted to the practice of law.


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION.
    No. 84-OB-0276.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Alex Chalmers Hope, Jr., applying for reconsideration of denied writ of March 9, 1984, 446 So.2d 308.

Denied.


text:
    STATE of Louisiana, ex rel. Elton Ray PARKER v. Ross MAGGIO, Jr., Warden.
    No. 83-KH-1087.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Elton Ray Parker, applying for writ of certiorari, prohibition and mandamus, 18th Judicial District Court, Parish of West Baton Rouge, No. 43-007.

Denied.


text:
    George M. GAMBINO v. William S. CULP, Individually and D/B/A Culp Capital Corporation.
    No. 84-C-0499.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Bankers Trust of Louisiana, applying for certiorari, or writ of review, to the Court of Appeal, Fifth Circuit, No. 83-CÁ-544; 24th Judicial District Court, Parish of Jefferson, No. 239-138.

Case below: 444 So.2d 730.

Denied.

MARCUS and DENNIS, JJ., would grant the writ.


text:
    STATE of Louisiana v. Michael Carl PIGLER.
    No. 84-KH-0481.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Michael Carl Pigler, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 295-173; Fourth Circuit Court of Appeal.

Denied. The 4th Circuit Court of Appeal has acted to enforce its earlier transfer order.


text:
    Jeraldean WILLIAMS v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al.
    No. 84-C-0419.
    Supreme Court of Louisiana.
    April 13, 1984.
   In . re Jeraldean Williams, applying for writ of certiorari to the Third Circuit Court of Appeal, No. 830195; 7th Judicial District Court, Parish of Concordia, No. 22329.

Case below: 445 So.2d 211.

Denied.


text:
    STATE of Louisiana v. Lue Elbert SULLIVAN.
    No. 84-KP-0524.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Lue Elbert Sullivan, applying for writ of certiorari and review to the 24th Judicial District Court, Parish of Jefferson, No. 73996, Div. “G”.

Denied.


text:
    Dominic J. CARLONE v. Shirley B. CARLONE.
    No. 84-C-0531.
    Supreme Court of Louisiana.
    April 13, 1984.
    Reconsideration Denied May 4, 1984.
   In re Dominic J. Carlone, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-0761; Civil District Court, Parish of Orleans, No. 550-179.

Case below: 444 So.2d 1274.

Denied.


text:
    Judy Theresa JONES v. Lee Anthony THIBODEAUX.
    No. 84-C-0532.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Lee Anthony Thibodeaux, applying for writ of certiorari and review to the Fourth Circuit Court of Appeal, No. CA-1234, Parish of Orleans, Civil District Court, No. 81-8503.

Case below: 445 So.2d 44.

Denied.


text:
    Maria COLOGNA v. Dr. Robert M. BEAZLEY.
    No. 84-C-0533.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Maria Cologna, applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA-0908, from the Civil District Court, Parish of Orleans, No. 79-2900.

Case below: 445 So.2d 25.

Denied.

DIXON, C.J., would grant the writ.


text:
    STATE of Louisiana v. Gary BENOIT.
    No. 84-KP-0539.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Gary Benoit, applying for remedial writs to the First Circuit Court of Appeal, No. KA-83-1235, from the Seventeenth Judicial District Court, Parish of Lafourche, No. 85729.

Case below: 446 So.2d 921.

Denied.


text:
    William BLANCHARD, Individually and in His Capacity as Administrator of the Estate of Michael Lawrence Blanchard, and Sherry Blanchard v. Richard T. TINSMAN and the State of Louisiana, Through the Department of Transportation and Development, et al.
    No. 84-C-0542.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re William Blanchard, Individually and in His Capacity as Administrator of the Estate of Michael Lawrence Blanchard, and Sherry Blanchard, applying for writ of cer-tiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-451; Parish of St. Landry, Twenty Seventh Judicial District Court, No. 86402-1.

Case below: 445 So.2d 149.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Robert L. RIDGLEY.
    No. 84-KP-0543.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Robert Ridgley, applying for remedial writ to the Eighteenth Judicial District Court, Parish of Point Coupee, No. 24879.

Denied.


text:
    John THOMAS v. W. & W. CLARKLIFT, INC. and Reliance Insurance Company v. John LECKERT, Sr., et al.
    No. 84-C-0551.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re W. & W. Clarklift, Inc. and Reliance Insurance Company, applying for writ of certiorari and/or review to the Fourth Circuit Court of Appeal, No. CA-0685; Civil District Court, Parish of Orleans, No. 77-9347.

Case below: 444 So.2d 1300.

Denied.


text:
    Mrs. Ronald DUPLECHAIN v. Arthur TURNER, Isaac Turner, Individually, and d/b/a 5105 Club Partnership, and Shelby Neveaux.
    No. 84-C-0562.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Mrs. Ronald Duplechain, applying for writ of certiorari, or review, to the Court of Appeal, Fourth Circuit, No. CA-0691; Civil District Court, Orleans Parish, No. 80-7817.

Case below: 444 So.2d 1322.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    Carl SENEGAL v. GEORGE THERIOT’S INC., et al.
    No. 84-C-0563.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Carl Senegal, applying for remedial writs to the Third Circuit Court of Appeal, No. 83-383, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 81-54.

Case below: 445 So.2d 137.

Denied.


text:
    Henry and Juanita HOLMES v. MARSH BUGGIES, INC. et al.
    No. 84-C-0566.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Henry and Juanita Holmes, applying for writ of certiorari or review to the Fourth Circuit Court of Appeal, No. CA-0943, from the Civil District Court, Parish of Orleans, No. 81-1004.

Case below: 445 So.2d 28.

Denied.


text:
    Brenda S. Glannen PRICE v. Paul James PRICE.
    No. 84-C-0567.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Paul James Price, applying for writ of certiorari, or writ of review to the Second Circuit Court of Appeal, No. 15904-CA, from the First Judicial District Court, Parish of Caddo, No. 252-869.

Case below: 445 So.2d 82.

Denied.


text:
    STATE of Louisiana v. Charles E. BARRETT, Jr.
    No. 84-KK-0572.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charles E. Barrett, Jr., applying for supervisory writs of review, certiorari, prohibition and mandamus, 4th Judicial District Court, Parish of Quachaita, No. M:51278; Court of Appeal, 2nd Circuit, No. 16328-KW.

Denied.


text:
    Peter J. VICARI, Jr. v. Linton MELANCON. Peter J. VICARI, Jr. v. Robert ADAMS.
    No. 84-C-0573.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Peter J. Vicari, Jr., applying for certiorari, or writ of review, to the Court of Appeal, First Circuit, Nos. 83 CA 0374 and 83 CA 0375; 17th Judicial District Court, Lafourche Parish, Nos. 45341 and 45517.

Case below: 446 So.2d 899.

Denied.


text:
    STATE of Louisiana ex rel. Hayward SIMMONS, Jr. v. STATE of Louisiana, Ross Maggio, Jr., Warden, L.S.P.
    No. 84-KH-0580.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Hayward Simmons, Jr., applying for remedial writs to the Criminal District Court, No. 225-445, Section “A”, Parish of Orleans.

Denied. Relator should use uniform post-conviction application form.


text:
    STATE of Louisiana ex rel. HUNTER, David Wayne v. Donald R. GUILLORY, Warden, Wade Correctional Center.
    No. 84-KH-0583.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re David Wayne Hunter, applying for remedial writs to the Second Judicial District Court, for the Parish of Claiborne, Nos. 14648 and 14649.

Denied.


text:
    STATE ex rel. Louis J. CHERAMIE v. JEFFERSON PARISH SCHOOL BOARD.
    No. 84-C-0585.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Louis J. Cheramie, applying for writ of certiorari or review to the Fifth Circuit Court of Appeal, No. 83-CA-615, from Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 282-156.

Denied.


text:
    STATE of Louisiana v. Donald Ray JOHNSON and Deborah J. Cassell.
    No. 84-K-0587.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Donald C. Johnson and Deborah C. Cassell, applying for remedial writs of cer-tiorari, prohibition, mandamus and for stay order, to the Second Circuit Court of Appeal, No. 15568-KA, from the Twenty-Sixth Judicial District Court, Parish of Bossier, No. 59690.

Case below: 445 So.2d 61.

Denied.


text:
    Jessie Mae Busch BONNER v. BANK OF COUSHATTA, et al. BANK OF COUSHATTA, et al. v. Jessie Mae Busch BONNER.
    No. 84-C-0588.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Jessie Mae Busch Bonner, et al., applying for writ of certiorari or review to the Second Circuit Court of Appeal, Nos. 15913 CA and 15912, CA, from the Thirty-ninth Judicial District Court Parish of Red River, Nos. 14961 and 25123.

Case below: 445 So.2d 84.

Denied.


text:
    Patricia S. WILLIAMS v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, et al.
    No. 84-C-0593.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Patricia S. Williams, applying for writ of certiorari or review to the Second Circuit Court of Appeal, No. 15692-CA, from the Fourth Judicial District Court, Parish of Ouachita, No. 82-2163.

Case below: 444 So.2d 1341.

Denied.

CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Charles SCHEPP v. OLIN CORPORATION, et al.
    No. 84-C-0595.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charles Schepp, applying for writs of certiorari and/or review to the Third Circuit Court of Appeal, No. 83-309; 14th Judicial District Court, Parish of Calcasieu, No. 80-1707.

Case below: 445 So.2d 1280.

Denied.

WATSON, J., would grant the writ.


text:
    Charles SCHEPP v. INDUSTRIAL INDEMNITY INSURANCE COMPANY, et al.
    No. 84-C-0596.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charles Schepp, applying for writ of certiorari, or writ of review, to the Court of Appeal, Third Circuit, No. 83-310; Fourteenth Judicial District Court, Parish of Calcasieu, No. 80-3940.

Case below: 445 So.2d 1286.

Denied.

WATSON, J., would grant the writ,


text:
    STATE of Louisiana v. Leonard DARSON.
    No. 84-KH-0600.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Leonard Darson, applying for writ of habeas corpus, from the Thirty-eighth Judicial District Court, for the Parish of Cameron, Nos. 43123, 43130.

Denied.


text:
    Charles SCHEPP v. OLIN CORPORATION, et al. Charles SCHEPP v. BECHTELL, INC. and Industrial Indemnity Insurance Company.
    No. 84-C-0606.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Beehtell, Inc. and Industrial Indemnity Insurance Company, applying for writ of certiorari and review to the Third Circuit Court of Appeal, Nos. 83-309 and 83-310, from the Fourteenth Judicial District Court, Parish of Calcasieu, Nos. 80-1707 and 80-3940.

Case below: 445 So.2d 1280; 445 So.2d 1286.

Denied.

WATSON, J., would grant the writ.


text:
    STATE of Louisiana ex rel. Garrett Decatur RICHARDSON v. Sheriff, Charles C. FOTI, Jr., Louisiana Department of Corrections, Louisiana State Parole Board, Sheriff, Elmer Litchfield, et al.
    No. 84-KH-0636.
    Supreme Court of Louisiana.
    April 13, 1984.
    Reconsideration Denied May 11, 1984.
   In re Garrett Decatur Richardson, applying for writs of mandamus, habeas corpus, prohibition and review to the Criminal District Court, Parish of Orleans.

Denied.


text:
    STATE of Louisiana v. Frasher WILLIAMS.
    No. 84-KH-0638.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Frasher Williams, applying for writ of certiorari, from Criminal District Court, Parish of Orleans, No. 279-451.

Denied.


text:
    STATE of Louisiana v. Chester BENNETT.
    No. 84-KH-0663.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Chester Bennett, applying for writ of mandamus from the Thirty-first Judicial District Court, Parish of Jefferson Davis.

Denied. Moot.


text:
    STATE of Louisiana, Appellee, v. Sammy GRAY, Appellant.
    No. 15728-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.
    Writ Denied June 25, 1984.
    Richard Goorley, Asst. Indigent Defender, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouehe, Dist. Atty., Terry Lindsey, Catherine Estopinal, Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   PER CURIAM.

Sammy Gray appeals his conviction by a unanimous jury of simple robbery and his sentence to 5½ years at hard labor. LRS 14:65.

He contends that the state should have produced a police report, that improper prosecutorial argument and an “other crimes” remark by a police witness should have compelled a mistrial, and that his sentence was not articulated in accord with CCrP Art. 894.1 and is constitutionally excessive. We find no error and affirm.

The victim identified defendant in a photo-line-up and at the trial as one of three men who choked and robbed him of $107.

Defendant’s assignment relating to the police report arose when a detective, while testifying, said that he had reviewed his report before he took the witness stand. Defendant’s motion to have the report produced was denied. This was not error. A witness may testify from his memory even though it has been refreshed by reading over his police report before taking the stand. Where the officer does not refer to the report while testifying, it is not error for the trial court to deny production of the report. State v. Kimble, 407 So.2d 693, 697 (La.1981).

The assignments relating to “other crimes” arose when a police witness, who was asked whether he knew defendant, replied, “I have dealt with him in the past,” and when the prosecutor, in rebuttal, emphasized that the defense lawyer had not asked defendant about a prior conviction.

The mere fact that a police witness answers an innocuous question that he has “dealt with” a defendant in the past, or has “known” him, does not imply that defendant has committed other crimes. State v. Young, 426 So.2d 370 (La.App. 2d Cir. 1983). We find no error in the trial court’s denial of a new trial.

The prosecutor’s rebuttal argument complained of is quoted:

“You have got to ask yourself this. First of all, why believe Mr. Rachal or Mr. Gray over the other? And answer it this way. First of all, the law allows you to discredit the testimony of anybody that has been convicted of a prior offense. Now Mr. Goorley wants you to believe that I speculated or tried to put in your mind that there was a conviction. What he does not tell you is that both sides have the right to impeach a witness. And Mr. Gray never, he was never asked by Mr. Goorley about a prior conviction. So he never denied it, but I asked him about it—”

Defendant objected and moved for a mistrial. The court sustained the objection and denied the mistrial. Defendant argues that this was improper argument outside the scope of CCrP Art. 774 and was prejudicial to the extent that a mistrial should have been granted. We cannot agree.

The jury was told that the argument of counsel was neither facts nor law. Our assumption that the prosecutor misstated the law in the argument does not require a reversal unless we are thoroughly convinced that the improper remarks influenced the jury and contributed to its verdict. State v. White, 430 So.2d 174, 181 (La.App. 2d Cir.1983). The critical issue determined by the jury was whether to believe the victim or to believe defendant. Defendant admitted he was with the victim at the time in question, but, for $10 paid by the victim, procured, a prostitute for the victim. Defendant testified that the victim returned to him claiming that the prostitute “clipped” him and that the victim threatened to accuse defendant to the police if defendant did not help him get his money back. Under these circumstances we are not at all convinced that the prosecutor’s alleged improper argument influenced the jury. See also State v. Moore, 432 So.2d 209 (La.1983).

The record at the sentencing hearing shows that the trial judge considered each of the mitigating circumstances and aggravating circumstances of CCrP Art. 894.1. Defendant was convicted of distribution of CDS in 1981 and was on five year felony probation when this crime occurred. The trial court recited defendant’s prior criminal history. The maximum sentence for simple robbery is seven years. Among other things, the trial court determined that defendant was in need of correctional treatment and that defendant’s experience and attitude indicated that he would likely commit “more crime.” Even if the trial court did not consider the “less onerous sentencing alternative” of a fine, as defendant argues, the sentence is not excessive.

Defendant’s conviction and sentence are AFFIRMED.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Corbett Randall GILL, Appellant.
    No. 15,991-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    David G. Haynes, West Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Baton Rouge, Louisiana, Johnny Parkerson, Dist. Atty., C. Lynn Tubb, Asst. Dist. Atty., Monroe, for appellee.
    Before MARVIN, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

The State charged the defendant on November 18, 1982, with committing the offense of Illegal Possession of Stolen Things (LSA-R.S. 14:69) on October 22, 1982. After a jury verdict of guilty as charged, the judge ordered a pre-sentence investigation. The defendant was subsequently sentenced on June 30, 1983 to two years in the parish jail, suspended, with five years supervised conditional probation. The defendant was additionally ordered to pay $500 to the Indigent Defender Board as a condition of probation in accordance with LSA-C.Cr.P. Art. 895.1B.(1).

The defendant has now appealed asserting as error the excessiveness of his sentence. Specifically, he contends that because his conduct is unlikely to recur again and because he has no previous record, that the $500 payment to the Indigent Defender Board constitutes an excessive sentence.

The requirement of such a reasonable payment to the Indigent Defender Board by an employed defendant, as a condition of probation, who has been convicted by a jury of his peers and adequately defended, cannot reasonably even be argued to be an abuse of discretion. The sentence appealed is affirmed.

AFFIRMED.