author: MARCUS, Justice. DIXON, Chief Justice LEMMON, Justice, PER CURIAM.

text:
    Succession of Joseph D. TUCKER v. Helen Tucker POCHE.
    No. 83-C-2172.
    Supreme Court of Louisiana.
    April 2, 1984.
    Rehearing Denied May 3, 1984.

      Maurice Gomila, Robin Friedman, New Orleans, for defendant-applicant.
    John D. Lambert, Jr., New Orleans, for plaintiff-respondent.
   MARCUS, Justice.

At issue in this suit is the ownership of a piece of property located at 2014 North Galvez Street in New Orleans. On December 30, 1966, Helen Tucker Poche and her husband James A. Poche conveyed this property by an act of sale before a notary and two witnesses for the recited consideration of $3100 to Joseph D. Tucker, Helen’s brother. This act of sale was duly registered in the conveyance office. On the same date, December 30, 1966, Joseph Tucker executed a counter letter stating that title to the property was placed in his name “for convenience only” and the property actually belonged to Helen as part of her separate and paraphernal estate. In the letter, Joseph obligated himself, his heirs and assigns to transfer the property to Helen or to any person she may suggest whenever called upon to do so. This letter was executed under private signature in the presence of two witnesses and was not recorded.

On January 3, 1975, Helen Tucker Poche, James Poche and Joseph Tucker executed a sale of the North Galvez Street property as well as certain property on Old Roman Street to Homeseekers Savings and Loan Association for $24,000 cash. In this act of sale, Joseph Tucker was identified as the record owner of the Old Roman Street property. Homeseekers immediately executed a resale of the property to Helen Tucker Poche, James Poche and Joseph Tucker for $24,000 on credit. The sale was duly registered in the conveyance office and the resale in the conveyance and mortgage offices.

On July 10, 1981, Joseph Tucker died testate, naming his widow Hazel McCallon Tucker as. his executrix. In his will, Joseph bequeathed his “interest” in the Old Roman Street and North Galvez Street properties to his widow and daughter. On November 19, 1981, Helen Tucker Poche registered in the conveyance office the December 30, 1966 counter letter which had been duly acknowledged before a notary public by one of the witnesses to the counter letter.

On April 28, 1982, Hazel McCallon Tucker as executrix of the Succession of Joseph Tucker filed a petition in district court seeking a declaratory judgment recognizing the succession’s undivided one-half interest in the North Galvez Street property and declaring the December 30, 1966 counter letter to be null and void. The petition further sought damages and attorney fees. Defendant, Helen Tucker Poche, answered the petition denying the succession’s ownership of the property and asserted a re-conventional demand seeking a declaratory judgment giving full force and effect to the counter letter and recognizing her as the sole owner of the North Galvez Street property. She also filed exceptions of no right or cause of action, alleging that under La.Civ.Code art. 2239, “only forced heirs and creditors have the right ... to set aside a Counter Letter.” Plaintiff moved for a summary judgment. After a hearing, the trial judge overruled the exceptions of no right and cause of action and granted plaintiff’s motion for summary judgment, declaring the counter letter null and void.

Helen Tucker Poche appealed, seeking a reversal of the trial judge’s rulings. The court of appeal affirmed. It found that the exceptions of no right and cause of action were properly overruled because the strictures of La.Civ.Code art. 2239 were inapplicable to the factual situation at bar. The court also ruled that the sale and resale through Homeseekers nullified the previously unrecorded counter letter and resulted in co-ownership of the property in question by Joseph Tucker and his sister Helen Tucker Poche. On Helen’s application, we granted certiorari to review the correctness of that decision.

Two issues are presented for our consideration: first, whether Hazel McCallon Tucker as executrix of the Succession of Joseph Tucker has a right and cause of action to set aside a counter letter made by the decedent; second, whether, as a result of the salé and resale through Homeseek-ers, Joseph and Helen became co-owners of the North Galvez Street property, thereby making the December 30, 1966 counter letter ineffective.

As to the first issue, we hold that Hazel McCallon Tucker as executrix of the Succession of Joseph Tucker does have a right and cause of action to set aside a counter letter made by decedent. Contrary to defendant’s arguments, La.Civ.Code art. 2239 does not limit the right of action of a maker of a counter letter or his representative to try to set aside that counter letter. Furthermore, La.Civ.Code art. 2239 does not deprive the plaintiff in this case of a cause of action under the facts as alleged.

In regard to the second issue, we hold that the sale and resale effected no change in the ownership of the North Gal-vez Street property and the counter letter is still fully valid and enforceable. When real property is sold to a homestead for cash and simultaneously resold by the homestead to its owner, the latter has not acquired anything. Such a transaction, which is for the purpose of providing the homestead the security of a vendor’s lien and first mortgage, is purely a pignorative contract. Bagala v. Bagala, 237 La. 60, 110 So.2d 526 (1959); Ruffino v. Hunt, 234 La. 91, 99 So.2d 34 (1958); New Orleans Federal Savings & Loan Association v. Pharr, 377 So.2d 387 (La.App. 4th Cir. 1979). The sale and resale transaction whereby one person sells to an intervenor who resells the property to the original seller and a third party has been held to effect a donation of an interest in the property to the third party, but only when there is donative intent. Succession of Daste, 254 La. 403, 223 So.2d 848 (1969); New Orleans Federal Savings & Loan Association v. Pharr, supra; Succession of Russo, 246 So.2d 26 (La.App. 4th Cir.), writ refused, 258 La. 760, 247 So.2d 861 (1971). This court has also recognized that a sale by a property owner to a lending institution and a resale to the seller plus another party can be accomplished without any intent to transfer title to the new party added on resale. Succession of Farley, 205 La. 972,18 So.2d 586 (1944). In Farley, we held that:

[the original seller’s] transaction with the building and loan association was never intended to operate as a transfer of title to the property which he mortgaged to secure the loan made by the association. The sale and resale of the land constituted a pignorative contract, which was made in the form of a sale and resale for the purpose merely of giving the building and loan association a vendor’s lien, in addition to the special mortgage.

Hence, in the case at bar, we must determine if Helen Tucker Poche intended by means of the sale and resale to donate a half interest in her property to Joseph Tucker.

It is unclear why Helen and her husband James joined in the sale and resale through Homeseekers. Clearly, their participation was not needed for Homeseekers to perfect a valid vendor’s lien and mortgage on the property because the homestead could rely on the public records doctrine. Hunter v. Buckner, 29 La.Ann. 604 (1877) (when the real owner of property allows it to stand on the public records as owned by another, a third party can rely on the public records to issue a valid mortgage to the record owner). Thus, one could argue that Helen’s unnecessary participation in the sale and resale evidenced her intent to donate an interest in the property to Joseph. However, we have held that when a true owner of property joins with others in a sale and resale of the property, the true owner may not be able to deny the others’ ownership vis a’ vis the mortgagee, but the transaction does not alter the actual facts of ownership as between the parties. Pellerin v. Sanders, 116 La. 616, 40 So. 917 (1906). Therefore, although we can only hypothesize as to why Helen and James joined in the sale and resale, we find that Helen’s mere participation in the transaction did not evidence her intent to give her brother any interest in her property. Nor has the plaintiff presented any other evidence of donative intent. Thus, we hold that no donation was accomplished.

Additionally, we find that the counter letter was unaffected by the sale and resale. Plaintiff alleged that the sale to Homeseekers satisfied Joseph Tucker’s obligation in the counter letter to retransfer the property to Helen Tucker Poche or “to any person that she may suggest.” Home-seekers allegedly was the party whom Helen suggested as her chosen transferee. Thus, plaintiff argues, the resale was made free of the counter letter and Helen cannot use the counter letter to traverse the record ownership of the property in Helen and Joseph. This contention is without merit. The sale and resale through Home-seekers was merely a pignorative device to provide the homestead with a vendor’s lien and mortgage and the transaction did not relieve Joseph of any of his obligations under the counter letter. Furthermore, the validity of the counter letter as between the parties to that letter was not affected by the homestead transaction. Safford v. Ellish, 276 So.2d 884 (La.App. 1st Cir. 1973); Cavallino v. Cavallino, 231 So.2d 623 (La.App. 4th Cir.1970). Thus, as between Helen and Joseph or Joseph’s representative, the counter letter is fully effective to show that Helen is the sole owner of the contested property even though the public records show title in Helen and James Poche and Joseph Tucker.

Plaintiff also contends that Helen is estopped from denying the succession’s co-ownership of the property with her because she admitted under oath in a deposition that she did not object when Joseph made his will disposing of an interest in the property. Further, she admitted that, at the time of the making of the will, she said that Joseph did own half of the property in question. We find these admissions of pri- or statements do not estop Helen from denying the succession’s co-ownership of the property. Helen never testified that she and Joseph actually owned the property jointly; hence, she is not estopped from denying such co-ownership. Helen explained in the deposition that she only made those statements to avoid upsetting her brother when he was near death, but she “knew the way things stood.”

Therefore, for the reasons expressed, we reverse the judgment of the court of appeal recognizing the Succession of Joseph D. Tucker as the owner of an undivided one-half interest in the property located at 2014 North Galvez Street. We remand the case to the district court to decide Helen Tucker Poche’s reconventional demand, which was not considered by the courts below.

DECREE

For the reasons assigned, the judgment of the court of appeal is reversed and the case is remanded to the district court for further proceedings in accordance with the views herein expressed.

DIXON, C.J., concurs with reasons.

LEMMON, J., concurs and assigns reasons.

WATSON, J., dissents.

DIXON, Chief Justice

(concurring).

I respectfully concur, disagreeing with the treatment of the “estoppel” argument.

LEMMON, Justice,

concurring.

I agree that the summary judgment in plaintiffs favor must be reversed, because the documents and depositions do not establish that plaintiff is entitled to judgment as a matter of law. However, the reversal of the summary judgment does not result in the denial of plaintiffs claim. The principal demand remains to be tried on the merits, along with the reconventional demand.

DENIAL OF REHEARING

PER CURIAM.

Plaintiffs rehearing application is denied. The majority opinion, by reversing the lower courts’ grant of plaintiffs motion for summary judgment, merely decided that plaintiff had not shown that she was entitled to judgment as a matter of law. The opinion did not have the effect of denying plaintiffs principal demand, which, along with the reconventional demand, remains to be tried on the merits.

WATSON, J., would grant rehearing.

      . 436 So.2d 1207 (La.App. 4th Cir.1983).

      . 441 So.2d 768 (La.1983).

      . La.Civ.Code art. 2239 provides:
      Counter letters can have no effect against creditors or bona fide purchasers; they are valid as to all others; but forced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the legitimate [legitime].

      .Note, however, that this is not the situation in the instant case; no new parties were added on resale. Rather, the same parties appeared in both the sale and the resale.

      . However, although Helen’s participation was not necessary for Homeseekers to perfect a valid mortgage and vendor’s lien on the property, her presence may have been desired (speculating that Homeseekers knew of the existence of the counter letter) to give the homestead certain procedural rights against Helen in the event she recorded the counter letter and a foreclosure proceeding was necessary.


source: Caselaw Access Project

author: LEMMON, J.,

license: Public Domain

text:
    STATE of Louisiana v. Donald CAGE.
    No. 84-K-0173.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Donald Cage, applying for Reconsideration of Denial Writ of March 9, 1984, 446 So.2d 1214, to the Court of Appeal, First Circuit, Number 83-KA-0828; Nineteenth Judicial District Court, Parish of East Baton Rouge, Number 5-81-963.

Reconsideration denied.

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

LEMMON, J.,

concurs in the denial. However, I would be willing to consider in the appropriate case the question of whether the state is required to notify the defendant prior to trial that he will be subject to a mandatory additional two-year sentence if the evidence adduced at trial establishes that a firearm was used in the commission of the felony.


author: CALOGERO, J.,

text:
    STATE of Louisiana v. Andrea JOHNSON.
    No. 84-K-0650.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Andrea Johnson, applying for Writs of Certiorari or Review, to the First Circuit Court of Appeal, No. 83-KA-1027, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 9-80-194.

Denied.

CALOGERO, J.,

concurs in .the denial of the writ. Even though the Court of Appeal failed to address defendant’s main argument, that the prosecutor intentionally elicited the response from the police officer concerning defendant’s “other crimes,” in my view, the context in which the DA’s question was posed does not indicate such improper intent.


text:
    STATE of Louisiana v. Ronald M. ANDERSON.
    No. 84-KK-0676.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re State of Louisiana, through the District Attorney, Harry F. Connick, applying for Writ of Certiorari, and Stay Order, Court of Appeal, Fourth Circuit, No. K-0676; Criminal District Court, Orleans Parish, No. 298-946.

Denied.

DIXON, C.J., and MARCUS and BLANCHE, JJ.,

would grant the writ. The Court of Appeal and the trial judge are in error. The defendant is not entitled to be represented at a photographic showup. See U.S. v. Ash, 413 U.S. 300, 93 S.Ct. 2568, 37 L.Ed.2d 619; State v. Stewart, 389 So.2d 1321 (La.1980).


text:
    STATE of Louisiana v. Wesley E. CLARK.
    No. 84-KK-0814.
    Supreme Court of Louisiana.
    April 27, 1984.
   ORDER

An Application for Supervisory Writs having been filed by Wesley E. Clark in this prosecution, and a Motion for Stay of Execution of Sentence having been filed in connection with said Application for Supervisory Writs:

IT IS ORDERED, that the sentence imposed upon Wesley E. Clark by the Fourth Judicial District Court in that prosecution styled “State of Louisiana v. No. M:53276, Wesley E. Clark” be stayed during the pendency of the Application for Supervisory Writs and during the consideration of said Application for Supervisory Writs by this Court.


text:
    LOUISIANA STATE BAR ASSOCIATION, Petitioner, v. Jay M. KLEIN, Respondent.
    No. 84-B-0764.
    Supreme Court of Louisiana.
    May 4, 1984.
   ORDER

The foregoing Petition, the premises, and the law considered:

IT IS ORDERED, ADJUDGED AND DECREED

That Jay M. Klein be and he is hereby suspended from the practice of law in the State of Louisiana for a period of one (1) year from the date of this Order, all at the cost of the Respondent, Jay M. Klein.


author: DIXON, C.J.,

text:
    STATE of Louisiana In the Interest of Adam EDELSTEIN, a/k/a Adam Yava and Reuben Jennifer Dianne, a/k/a Dianne Reuben.
    No. 84-CK-0715.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Ernestine Yava, applying for Cer-tiorari, or Writ of Review, to the Court of Appeal, Fourth Circuit, No. CA-1295; Juvenile Court, Parish of Orleans, No. 199-678.

Denied on the showing made.

DIXON, C.J.,

concurs in the denial, only because the application does not present the issue of the capacity of defendant to stand in judgment. Because of her incapacity, she must be interdicted before a judgment against her can be effective.


text:
    STATE of Louisiana v. Philip A. FURINO.
    No. 84-KH-0665.
    Supreme Court of Louisiana.
    April 5, 1984.
   In re Philip A. Furino, applying for writ of habeas corpus, from the Twentieth Judicial District Court, Parish of East Felicia-na, First Circuit Court of Appeal, No. KW 84-0268.

Denied.


text:
    STATE of Louisiana v. Charles Edward JOSEPH.
    No. 84-KK-0707.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Charles Edward Joseph, applying for writ of review, to the Third Circuit Court of Appeal, No. K-84-269; Fifteenth Judicial District Court, Parish of Lafayette, No. 48414.

Granted. It is ordered that defendant’s trial be commenced within 15 days or that defendant be released without bail. See 'La.C.Cr.P. Art. 701D(2).


text:
    STATE of Louisiana v. Danny J. GOODSON.
    No. 84-K-0591.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Danny J. Goodson, applying for writ of review, to the Second Circuit Court of Appeal, No. 15660-KA, from the Fourth Judicial District Court, Parish of Ouachita, No. 40951.

Denied.


text:
    In re Ernest C. HAMILTON, Petition For Reinstatement.
    No. 83-OB-0975.
    Supreme Court of Louisiana.
    April 13, 1984.
   In re Ernest C. Hamilton, applying for reinstatement to the Louisiana State Bar Association.

Denied.


text:
    Thomas I. HOLLANGER, Jr. and Janet Bracewell Hollanger v. HOLLANGER RICE FARMS, INC. and Tallulah Production Credit Association.
    No. 84-C-0558.
    Supreme Court of Louisiana.
    April 17, 1984.
   In re Thomas I. Hollanger, Jr. and Janet Bracewell Hollanger, applying for writ of certiorari or review to the Second Circuit Court of Appeal, No. 15982-CA, from the Fourth Judicial District Court, Parish of Morehouse, No. 82-310.

Denied.


text:
    Linda Moreau COX v. Bennie Lee COX.
    No. 84-OC-0754.
    Supreme Court of Louisiana.
    April 18, 1984.
   In re Bennie Lee Cox, applying for writ of certiorari, or review, and stay of proceedings, to the Court of Appeal, Third Circuit, No. 8477; 9th Judicial District Court, Rapides Parish, No. 109945.

Granted. All proceedings stayed for 30 days during which relator may obtain a written narrative of facts (LSA-CCP 2131) and file his brief with the Court of Appeal, 3rd Circuit; the appeal to proceed thereafter according to law.


author: WATSON, J.,

text:
    Walter Edward MAY, Jr., Applying for Adoption v. Gary David FUQUA.
    No. 83-C-2540.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Gary David Fuqua, applying for writ of certiorari or review to the Court of Appeal, Second Circuit, No. 15859-CAJ, Parish of Jackson, 2nd Judicial District Court, No. 233AD.

Granted. Court of Appeal judgment set aside. Case remanded to Court of Appeal for reconsideration after receiving and reviewing transcript of trial court proceedings.

WATSON, J.,

dissents from the order and would deny the writ.

Opinion on remand, 452 So.2d 800.


text:
    STATE of Louisiana ex rel. Lincoln REVON v. Charles FOTI, Criminal Sheriff.
    No. 84-KH-0519.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Lincoln Revon, applying for remedial writs to the Criminal District Court, for the Parish of Orleans, Nos. 272-924, 273-864, Fourth Circuit Court of Appeal, No. K-1846.

Granted and remanded to district court for evidentiary hearing.


text:
    STATE of Louisiana ex rel. Steven GALLAGHER, v. STATE of Louisiana.
    No. 84-KH-0552.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Steven Gallagher, applying for writ of habeas corpus, to the Criminal District Court, Parish of Orleans.

Granted. Remanded to the Court of Appeal for reconsideration and decision after reviewing the evidentiary hearing transcript.


text:
    STATE of Louisiana ex rel. Saul WHITTAKER v. STATE of Louisiana, Judge Miriam G. Waltzer.
    No. 84-KH-0553.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Saul Whittaker, applying for writ of certiorari and review to Criminal District Court, Parish of Orleans, No. 293-843, to the Fourth Circuit Court of Appeal, No. K-1954.

Granted. The trial court shall order the court reporter to complete and file the transcript within 30 days, and the clerk shall lodge the record immediately upon filing of the transcript.


text:
    STATE of Louisiana v. Thomas L. WARD.
    No. 84-KK-0615.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Thomas L. Ward, applying for writ of certiorari, Criminal District Court, Parish of Orleans, No. 297-030; Court of Appeal, Fourth Circuit, No. K-1765.

Granted. The judgment of the trial court is reversed. Relator is to be provided with the assistance of experts in the fields of toxicology and blood analysis insofar as applicable to relator’s defense.


text:
    STATE of Louisiana v. Anthony DAVIS.
    No. 84-KH-0761.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Anthony Davis, applying for remedial writs to the First Circuit Court of Appeal, No. KA 83-1194, from the Twenty-Second Judicial District Court, Parish of Washington, No. 37859.

Granted. Defendant is to be permitted to file a brief in the Court of Appeal by April 30, 1984.


text:
    STATE of Louisiana, ex rel. Oscar W. GORDON v. CLERK OF COURT, DIVISION “G”, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, STATE of Louisiana.
    No. 84-KH-0705.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Oscar W. Gordon, applying for writ of mandamus, Criminal District Court, Parish of Orleans, Nos. 288-315 and 288-321.

Granted. Application transferred to Court of Appeal, Fourth Circuit, for its consideration.


text:
    STATE of Louisiana ex rel. Ronald RHOME v. The Honorable Alvin V. OSER, Judge, Criminal District Court, Section “J”, Parish of Orleans, State of Louisiana, et al.
    No. 84-KH-0723.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Ronald Rhome, applying for writ of habeas corpus to the Criminal District Court, Section “J”, No. 291238, Parish of Orleans.

Granted and transferred to Court of Appeal, 4th Circuit, for consideration.


text:
    STATE of Louisiana, ex rel. Kenneth HENLEY v. LOUISIANA STATE PRISON and State of Louisiana.
    No. 84-KH-0537.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Kenneth Henley, applying for writ of habeas corpus, 1st Judicial District Court, Parish of Caddo.

Granted and transferred to 19th Judicial District Court for consideration.


text:
    STATE of Louisiana, ex rel. Ronald PORTER v. STATE of Louisiana.
    No. 83-KH-1364.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Ronald Porter, applying for writs of habeas corpus and certiorari, Orleans Parish, Criminal District Court, No. 273-251.

Writ denied.


text:
    STATE of Louisiana ex rel. Lindy Emanuel Tillett ROLAND v. CLERK, CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 83-KH-1816.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Lindy Emanuel Tillett Roland, applying for writ of mandamus, to the Criminal District Court, Parish of Orleans.

Denied. Relator must first file in the district court.


text:
    STATE of Louisiana, ex rel. Charles A. HEALY v. Richard HENDERSON, Custodian.
    No. 83-KH-1959.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Charles A. Healy, applying for writs of mandamus, habeas corpus, certio-rari, and remedial writs, Criminal District Court, Parish of Orleans, No. 243-565.

Denied.


text:
    STATE of Louisiana ex rel. Michael WILLIAMS v. 24TH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, SECTION C.
    No. 83-KH-2532.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Michael Williams, applying for writ of mandamus from the 24th Judicial District Court, Parish of Jefferson, No. 75-378.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Danny MACON v. The BOARD OF PARDONS AND PAROLES et al.
    No. 84-KH-0145.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Danny Macon, applying for an extension of time to file writ application to Supreme Court, to the Second Circuit Court of Appeal, No. 16079-KH; 26th Judicial District Court, No. 55752, Parish of Bossier.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Charles WELCH v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-0520.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Charles Welch, applying for writ of mandamus to the Nineteenth Judicial District Court, No. 5-80-376, Parish of East Baton Rouge.

Denied. Moot.


text:
    STATE of Louisiana ex rel. Donald SAMUELS v. Marie K. ERICKSON, Criminal Law Clerk and Sue Poole Court Reporter.
    No. 84-KH-0535.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Donald Samuels, applying for writ of mandamus to the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 80-1959.

Denied. Moot.


text:
    STATE ex rel. Sam PERKINS v. CLERK OF COURT & 19TH JUDICIAL DISTRICT COURT, PARISH OF EAST BATON ROUGE, SECTION II.
    No. 84-KH-0536.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Sam Perkins, applying for writ of mandamus to the 19th Judicial District Court, Parish of East Baton Rouge, No. 11-81-234.

Denied. There is no record of relator’s motion having been filed in the district court.


text:
    STATE of Louisiana ex rel. Cleveland BELL v. Hon. Walter E. KOLLIN, Judge, Twenty-Fourth Judicial District Court, Parish of Jefferson.
    No. 84-KH-0581.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Cleveland Bell, applying for writ of mandamus to the Twenty-Fourth Judicial District Court, No. 78-2318, Parish of Jefferson.

Denied. Moot.


text:
    STATE of Louisiana v. Ernest JACKSON.
    No. 84-K-0597.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re State of Louisiana, applying for writ of certiorari, to the Court of Appeal, First Circuit, No. 83-KA-0729, from the 22nd Judicial District Court, Parish of St. Tammany, No. 98273.

Denied.

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


text:
    STATE of Louisiana ex rel. Danny Neal MACON v. STATE of Louisiana BOARD OF PARDON & PAROLE, Donald R. Guillory, Warden, Wade Correctional Center, Haynesville, Louisiana, 71038.
    No. 84-KH-0599.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Danny Neal Macon, applying for writ of habeas corpus to the Twenty-Sixth Judicial District Court, No. 55752, Parish of Bossier.

Denied.


text:
    AMERADA HESS CORPORATION v. TENNECO, INC.
    No. 84-CC-0611.
    Supreme Court of Louisiana.
    April 23; 1984.
   In re Tenneco, Inc., applying for writs of certiorari, prohibition and mandamus, from Fifteenth Judicial District Court, Parish of Lafayette, No. 83-4275-D; Third Circuit Court of Appeal, No. 84-201.

Denied.

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


text:
    STATE of Louisiana v. Ray ELMORE.
    No. 84-KK-0614.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Ray Elmore, applying for writs of review, certiorari, prohibition, and mandamus, to the Second Circuit Court of Appeal, No. 16365-KW, from the Fourth Judicial District Court, Parish of Ouachita, No. M:52073.

Denied.


text:
    JONES, WALKER, WAECHTER, POITEVENT, CARRERE & DENEGRE v. Stephen R. SONSON.
    No. 84-CC-0623.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Stephen R. Sonson, applying for writ of certiorari and review, from Civil District Court, Parish of Orleans, No. 83-16772; Fourth Circuit Court of Appeal, No. C 1917.

Denied.

MARCUS, J., would grant the writ.


text:
    STATE of Louisiana v. Lionel SORINA.
    No. 84-KK-0635.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re State of Louisiana, applying for writ of certiorari, from the Criminal District Court, Parish of Orleans, No. 284-109, to the Fourth Circuit Court of Appeal, No. K-1819.

Denied.


text:
    Annie Bell JOHNSON v. Johnnie Lee EARLS and Laura Earls.
    No. 84-CC-0664.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Johnnie Lee Earls and Laura Earls, applying for writs of certiorari, prohibition, and mandamus, to the First Circuit Court of Appeal, No. CW 84-0382, from the Family Court, Parish of East Baton Rouge, No. 66224, Division “A”..

Denied.


text:
    STATE of Louisiana, ex rel. Dallas GREEN v. Hon. Robert FARR, Judge, Fourth Judicial District Court, Parish of Ouachita, State of Louisiana.
    No. 84-KH-0666.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Dallas Green, applying for writ of certiorari and review, 4th Judicial District Court, Parish of Ouachita, No. 38742.

Denied.


text:
    STATE of Louisiana ex rel. Darrell JACKSON v. FOURTEENTH JUDICIAL DISTRICT COURT.
    No. 84-KH-0673.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Darrell Jackson, applying for remedial writ to the 14th Judicial District Court, Parish of Calcasieu.

Denied. Moot.


text:
    SHELL OIL COMPANY, Shell Offshore, Inc. and Shell Onshore Partnership v. TENNECO INC.
    No. 84-CC-0682.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Tenneco Inc., applying for writ of certiorari and/or review, prohibition and mandamus to the 15th Judicial District Court, Parish of Lafayette, No. 83-5480-G; Third Circuit Court of Appeal, No. 84-255.

Denied.

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


text:
    STATE of Louisiana v. Floyd R. GREER, Jr.
    No. 84-KK-0686.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Floyd R. Greer, Jr., applying for supervisory writs, City Court of Lafayette, No. 83-807, Parish of Lafayette; Court of Appeal, Third Circuit, No. K-84-41.

Denied.


text:
    STATE of Louisiana v. Robert J. SCHRIVER.
    No. 84-KH-0701.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Robert J. Schriver, applying for writ of mandamus, 20th Judicial District Court, Parish of West Feliciana, No. W-83-8-1099; Court of Appeal, First Circuit, No. KW-84-0282.

Denied.


text:
    STATE of Louisiana, ex rel., Sam W. BATEY, Jr. v. Hon. Walter PETERS.
    No. 84-KH-0794.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Sam W. Batey, Jr., applying for remedial writs, Parish of Jeff Davis, 31st Judicial District Court.

Granted. Bond reduced to $15,000.00.


text:
    STATE of Louisiana ex rel. Ray BRADDY v. CLERK, CRIMINAL DISTRICT COURT, SEC. “B”.
    No. 84-KH-0731.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Ray Braddy, applying for writ of mandamus, certiorari, and remedial to the Criminal District Court, Parish of Orleans, No. 291-133.

Granted. Application transferred to the Court of Appeal, Fourth Circuit, for its consideration.


text:
    STATE of Louisiana ex rel. Milbert R. PIERRE v. Hon. Marion K.O. FARMER and Clerk of Court, et al., Twenty-Second Judicial District Court, Parish of Washington, State of Louisiana.
    No. 84-KH-0802.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Milbert R. Pierre, applying for writ of mandamus to the Twenty-Second Judicial District Court, No. 82-452, Parish of Washington.

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


text:
    STATE of Louisiana, ex rel. David GULLEY v. 32ND JUDICIAL DISTRICT COURT, STATE OF LOUISIANA, The Honorable Ashby W. Pettigrew, Presiding.
    No. 84-KH-0693.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re David Gulley, applying for supervisory writ, Parish of Terrebonne, 32nd Judicial District Court, No. 96034.

Granted. Relator’s motions are transferred to the district court for proceedings in accordance with law.


text:
    STATE of Louisiana ex rel., Clarence P. HUBBARD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1312.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Clarence P. Hubbard, applying for writ of certiorari, habeas corpus, and remedial writs, Parish of Orleans, No. 270-915.

Denied.


text:
    STATE of Louisiana ex rel. Floyd WEBB v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1440.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Floyd Webb, applying for supervisory writ from the Twenty-Second Judicial District Court, Parish of St. Tammany, No. 80683.

Denied


text:
    STATE of Louisiana, ex rel., Fredrick SMITH v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 83-KH-1441.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Fredrick Smith, applying for writs of certiorari, prohibition, mandamus or ha-beas corpus, Parish of East Baton Rouge, No. 10-76-445.

Denied.


text:
    STATE of Louisiana ex rel. Margaret L. CHURCH v. Johnnie JONES, Warden.
    No. 84-KH-0358.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Margaret L. Church, applying for supervisory writ of certiorari, to the Third Judicial District Court, Parish of Lincoln, No. 25877.

Denied.


text:
    STATE of Louisiana ex rel. Joe WILLIE v. Judge, Alvin OSER, Section J., Criminal District Court.
    No. 84-KH-0405.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Joe Willie, applying for remedial writs to the Criminal District Court, Parish of Orleans.

Denied.


text:
    STATE of Louisiana ex rel. Michael L. JEFFCOAT v. CLERK OF COURT, ORLEANS PARISH SECTION “H”, CRIMINAL DISTRICT COURT.
    No. 84-KH-0618.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Michael L. Jeffcoat, applying for remedial writ to the Criminal District Court, Parish of Orleans, No. 280-041.

Denied. Moot.


text:
    EMERGENCY PHYSICIANS ASSOCIATION v. Lawrence C. LEVENTHAL, M.D. and J. Thomas Miceli, M.D.
    No. 84-CC-0710.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Lawrence C. Leventhal, M.D., and J. Thomas Miceli, M.D., applying for supervisory writs, 19th Judicial District Court, Parish of E. Baton Rouge, No. 267086; Court of Appeal, First Circuit, No. Cw 84/0357.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Gregory S. SIMS.
    No. 84-KK-0711.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Gregory S. Sims, applying for remedial writ to the Second Judicial District Court, Parish of Bienville No. 21941, from the Second Circuit Court of Appeal, No. 16341-KW.

Denied.


text:
    STATE of Louisiana v. Gregory NAVARRE.
    No. 84-KP-0716.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Gregory Navarre, applying for writs of certiorari, prohibition and mandamus from the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 78517.

Denied.

CALOGERO, J., would grant the writ.


text:
    Mary Condoll, widow of James CONDOLL v. JOHNS-MANVILLE SALES CORPORATION a/k/a Johns-Manville Products Corporation.
    No. 84-C-0728.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Mary Condolí, Widow of James Condolí, applying for supervisory writs of certiorari, mandamus and review to the Fifth Circuit Court of Appeal, No. 83-CA-706, from the Twenty-Fourth Judicial District Court, No. 279-267, Div. “0”, Jefferson Parish.

Denied.


text:
    STATE of Louisiana ex rel. Felix BROSCOE v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS, SECTION “A”.
    No. 84-KH-0732.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Felix Broscoe, applying for writ of mandamus to the Criminal District Court, Parish of Orleans, No. 288-804, Section “A”.

Denied.


text:
    Adell L. FOXWORTH v. NEW ORLEANS TRAFFIC COURT.
    No. 84-C-0738.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Adell Foxworth, applying for writ of certiorari to the Fourth Circuit Court of Appeal, No. CA-1064, from the City of New Orleans Civil Service Commission, No. 1851.

Denied.


text:
    Joseph F. ROY v. PEUGEOT MOTORS OF AMERICA, INC., Classic Car Imports, Inc., Continental Imports, Inc., and Benson Continental Motors, Inc.
    No. 84-C-0740.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Joseph F. Roy, applying for writ of certiorari and review, to the Fifth Circuit Court of Appeal, No. 83-CA-667, from the Twenty-Fourth Judicial District, Parish of Jefferson, No. 268-275, Division “D”.

Denied.

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


text:
    STATE of Louisiana v. Ronald MAYEAUX.
    No. 84-KK-0756.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Ronald Mayeaux, applying for writ of certiorari, review and remedial writs, to the Fifteenth Judicial District Court, for the Parish of Lafayette, No. 41,549, from the Third Circuit Court of Appeal, No. K-84-252. ■

Denied.


text:
    STATE of Louisiana v. Joseph Dalton RIDEAUX.
    No. 84-KH-0762.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Joseph Dalton Rideaux, applying for remedial writ to the Fifteenth Judicial District Court, Parish of Lafayette, No. 37798.

Denied.


text:
    STATE of Louisiana In the Interest of M.
    No. 84-CK-0765.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Department of Health and Human Resources, applying for certiorari, or writ of review, to the Court of Appeal, Fourth Circuit, No. CA-1272; Juvenile Court for the Parish of Orleans, No. 197-921.

Denied.

DENNIS, J., would grant the writ.


text:
    Henry CHARLES v. PATTERSON TRUCK LINE, INC.
    No. 84-CC-0796.
    Supreme Court of Louisiana.
    May 4, 1984.
   In re Henry Charles, applying for supervisory writs and stay order, to the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 74751; First Circuit Court of Appeal, No. CW 84/0428.

Denied.


text:
    Wilford Leroy THOMPSON, Jr. v. COPOLYMER INTERNATIONAL, INC., et al.
    No. 84-C-0647.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re National Union Fire Ins. of Pittsburgh, Pa., applying for writ of certiorari or review to the First Circuit Court of Appeal, No. 83-CA-0061, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 225491.

Denied.

DENNIS, J., would grant the writ.


text:
    STATE of Louisiana v. Larry E. BOOKER.
    No. 84-K-0348.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Larry E. Booker, applying for reconsideration of denied writ of March 16, 1984, 446 So.2d 1227, Court of Appeal, First Circuit, No. 83-KA-0471; 32nd Judicial District Court, Parish of Terrebonne, No. 117985.

Reconsideration denied.

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


text:
    STATE of Louisiana v. Joseph CLAY.
    No. 84-K-0074.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Joseph Clay, applying for reconsideration of a March 9, 1984, 446 So.2d 1213, denied writ, to the First Circuit Court of Appeal, No. 82-KA-1089, 23rd Judicial District Court, Parish of Terrebonne, No. 104-215.

Reconsideration denied.

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


text:
    STATE of Louisiana v. Edrick JENKINS.
    No. 84-KD-0780.
    Supreme Court of Louisiana.
    April 23, 1984.
   In re Edrick Jenkins, applying for writ of certiorari or review and bail reduction, to the Twenty-Eighth Judicial District Court, Parish of LaSalle, No. 30891.

Granted for the sole purpose of transferring to Court of Appeal for its consideration.


author: GAUDIN, Judge.

text:
    Joseph A. RODRIGUE, Jr. v. FIREMEN’S FUND INSURANCE COMPANY.
    No. 83-CA-591.
    Court of Appeal of Louisiana, Fifth Circuit.
    Feb. 6, 1984.
    Sidney D. Torres, III, Keith Giardina, Chalmette, for plaintiff-appellant.
    David M. Cambre, New Orleans, for defendant-appellee.
   GAUDIN, Judge.

Joseph A. Rodrigue, Jr. instituted this proceeding in the 24th Judicial District Court because of injuries sustained at the Belle Terre playground. He sued the insurer of the Jefferson Parish Recreation Department, alleging a failure to maintain safe bleachers.

The insurance company then moved for summary judgment, contending that the Jefferson Parish Recreation Department was immune from tort liability because of LSA-R.S. 9:2795. The trial judge granted the motion.

On appeal, Mr. Rodrigue argues that the statute is inapplicable to governmental entities.

The statute reads:

R.S. 9:2795
LIMITATION OF LIABILITY OF LANDOWNER OF PROPERTY USED FOR RECREATIONAL PURPOSES
A. As used in this Section:
(1) “Land” means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
(2) “Owner” means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.
(3) “Recreational purposes” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, trapping, swimming, boating, camping, picnicking, hiking, horseback riding, bicycle riding, motorized vehicle operation for recreation purposes, nature study, water skiing, sledding, snow mo-biling, snow skiing, summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
(4) “Charge” means the admission price or fee asked in return for permission to use lands.
(5) “Person” means individuals regardless of age.
B. Except for willful or malicious failure to warn against a dangerous condition, use, structure, or activity, an owner of land, except an owner of commercial recreational developments or facilities, who permits with or without charge any person to use his land for recreational purposes as herein defined does not thereby:
(1) Extend any assurance that the premises are safe for any purposes.
(2) Constitute such person the legal status of an invitee or licensee to whom a duty of care is owned.
(3) Incur liability for any injury to person or property incurred by such person.
C. Unless otherwise agreed in writing, the provisions of Subsection B shall be deemed applicable to the duties and liability of an owner of land leased for recreational purposes to the federal government or any state or political subdivision thereof or private persons.
D. Nothing in this Section shall be construed to relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care.

THE PRATT CASE

Louisiana courts dealt with a similar issue in Pratt v. State of Louisiana, 408 So.2d 336 (La.App. 3rd Cir.1981), writ denied at 412 So.2d 1098 with three dissents.

The Third Circuit opinion stated:

“By its terms, the grant of immunity is made to any landowner who has made his land available for certain recreational purposes. The State, for purposes of this statute, stands in the same position as any other private litigant.” (Underlining supplied.)

While we do not necessarily agree with this statutory interpretation, we cannot overlook it.

Accordingly, we affirm the granting of the motion for summary judgment, with appellant to pay all costs.

AFFIRMED.


author: EDWARDS, Judge.

text:
    STATE of Louisiana v. Gloria KLEINPETER.
    No. 83-KA-0842.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Granted in Part April 3, 1984.
    Writ Denied May 11, 1984.

      Leon A. Picou, Jr., Dist. Atty., St. Fran-cisville, for plaintiff.
    Clayton M. Perkins, Jr., St. Francisville, for defendant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   EDWARDS, Judge.

In this appeal, Gloria Kleinpeter challenges the trial court’s denial of her motion to suppress certain contraband seized from her person, pursuant to a search warrant, while she was a visitor at the Louisiana State Penitentiary at Angola, Louisiana.

Kleinpeter was indicted for introducing contraband (methaqualone) into a state prison in violation of LSA-R.S. 14:402. She pleaded not guilty at arraignment and subsequently filed a motion to suppress the seized evidence. After the adverse ruling on her motion, Kleinpeter changed her former plea of not guilty to nolo contendere, reserving her right to appeal the judgment. On the basis of her new plea, the trial court sentenced her to one year imprisonment at hard labor and fined her $50.00 under the Crime Victims Reparations Act, LSA-R.S. 46:1801 et seq. This appeal followed.

No witnesses were called to testify at the hearing on the motion. But from the documents which were submitted and from the facts stipulated to by the parties and recounted by the trial court in its written reasons for judgment, the following facts emerge.

In March of 1979, as a condition for obtaining visitation rights, Kleinpeter signed a written consent form agreeing to a personal search by security personnel of the Louisiana State Penitentiary while on prison grounds. Over the following two years, Kleinpeter frequently visited inmate Harry Lovell. Some time prior to August 7, 1981, prison security received information that Lovell was to receive some drugs from a visitor on August 7. When Klein-peter arrived early in the morning that day to visit with Lovell, prison officials asked her to submit to a search. When she refused, they detained her until they could obtain a warrant to search her person.

On the affidavit of West Feliciana Sheriffs Deputy Harry Martin, Jr., a search warrant was issued at 3:30 p.m. that afternoon authorizing a body search of Gloria Kleinpeter. The search was conducted in the office of one Dr. Gould in West Felicia-na Parish. References at the hearing and in the trial judge’s written reasons indicate that a body cavity search revealed “two white pills appearing to be methaqualone & one plastic package appearing to contain other drugs.”

In her one assignment of error, Kleinpeter raises the same argument urged at the hearing below, namely, that Deputy Martin’s affidavit is facially insufficient to establish probable cause to issue the search warrant. According to the affidavit,

A) On past visits of April 3, 1981, April 24, 1981, May 7, 1981, May 22, 1981 Gloria Kleinpeter visited inmate Harry Lovell and when Lovell left the visiting area he appeared to be intoxicated according to Security Officer Robert Marks.
B) Gloria Kleinpeter is from New Orleans, La. area and inmate Harry Lo-vell received a fictious [sic] letter post marked New Orleans, La. which contained Hashish.
C) Security Office [sic] Billy Travis received information throught [sic] another unnamed officer known to him who has received information from this officer in the past. This officer in the past and on this date received information from an unnamed inmate that inmate Harry Lovell was to receive drugs from a visitor on August 7, 1981. This unnamed inmate overheard a conversation by Lovell and clearly heard him state that he was to receive drugs from the visitor. This inmate has given the unnamed officer reliable information in the past. On or about July 21, 1981 said inmate reported that another inmate Ricky Manuel was to receive “ampheti-mines” a search was conducted of Manuel’s possessions and mail and “amphetimines” were discovered per the unnamed informants instructions.
D) Gloria Kleinpeter was the only visitor requestong [sic] to see Lovell on August 7, 1981. After entering prison grounds with knowledge of possible search Kleinpeter refused to allow prison officers to search her.

Attacking the paragraphs in seriatim, Kleinpeter contends that the affidavit is based upon a chain of hearsay information supported either by informants whose basis of knowledge is not adequately established or by informants whose credibility or reliability is not established (the unnamed officer and inmate). She contends these deficiencies are fatal under the two-prong test of Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964) and Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Prior to June 8, 1983, the United States Supreme Court had ruled that where information supplied by an informant formed the basis for probable cause to issue a search warrant, the State was required to show both the veracity of the informant and the basis of his knowledge under the Spinelli-Aguilar “two-prong test.” This test was adopted in Louisiana. See State v. Ruffin, 434 So.2d 1246 (La.App. 1st Cir. 1983).

On June 8, 1983, in Illinois v. Gates, — U.S. -, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the Supreme Court abandoned the “two-prong test” of Aguilar and Spinelli in favor of a “totality of circumstances” approach. The Supreme Court said that while an informant’s “veracity,” “reliability,” and “basis of information” are important factors in determining probable cause, they should not be understood as “entirely separate and independent requirements to be rigidly exacted in every case_ Rather ... they should be understood simply as closely intertwined issues that may usefully illuminate the common sense, practical question whether there is ‘probable cause’ to believe that contraband or evidence is located in a particular place.” Gates, — U.S. at-, 103 S.Ct. at 2327-28 (footnote omitted).

The Court explained that “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules. Informants’ tips doubtless come in many shapes and sizes from many different types of persons.” Gates, — U.S. at-, 103 S.Ct. at 2328. The court further admonished that “after-the-fact scrutiny should not take the form of de novo review. A magistrate’s ‘determination of probable cause should be paid great deference by reviewing courts.’ ” Gates, — U.S. at -, 103 S.Ct. at 2331 (citations omitted).

Finally, the Court instructed:

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of the reviewing court is simply to ensure that the magistrate had a “substantial basis for ... concluding]” that probable cause existed.

Gates, — U.S. at-, 103 S.Ct. at 2332 (citations omitted).

This court has expressly adopted the Gates approach in State v. Ruffin, 434 So.2d 1246 (La.App. 1st Cir.1983) and in State v. Sterling, 444 So.2d 273 (La.App. 1st Cir.). Thus, our duty is simply to ensure that a substantial basis supports the magistrate’s conclusion that probable cause existed.

In his written reasons for judgment, the trial judge stated:

Defendant urges that the affidavit does not establish probable cause and the consent of 1979 was appropriately revoked. There are no allegations of misstatements attributed to affiant. The reliability of the security officers are not challenged. The prior consent was not uninformed. The visitor was inside the prison grounds of one of the largest penitentiaries in the United States prior to revoking consent and seeking to exercise visitation.
The only informant, not a security officer, was an inmate whose reliability was established by articulation within the corners of the affidavit.
Although standing alone, some of the individual paragraphs of the application may not meet the tests of Aguilar v. Texas, [378 U.S. 108] 84 S.C.[t] 1509 [12 L.Ed.2d 723] (1964), the common sense reading of the application in totality and paragraphs a & c caused the magistrate to find probable cause. See State v. Baker, 389 So.2d 1289 (1980).
The Courts have long recognized a detention facility is a unique place fraught with serious dangers. It is acknowledged that body cavity searches are highly intrusive and humiliating, and must be surrounded by protection which does not conflict with legitimate penological needs.
The finding of a neutral and detached magistrate upon reasonably trustworthy information and exercising reasonable caution should be paid deference by reviewing courts. See State v. Sierra, 338 So.2d 609 (1976).

We agree with the trial court’s evaluation of the affidavit. A common sense, nontechnical reading of the affidavit reveals a substantial basis for concluding that Gloria Kleinpeter was attempting to introduce contraband on August 7, 1981. There was a fair probability that she had on previous visits supplied Lovell with contraband drugs (Paragraph A). Discovery of hashish in Lovell’s mail had alerted prison officials that Lovell was receiving drugs from the outside (Paragraph B). An inmate, whose identity was undisclosed obviously for his own protection and whose tip on a prior occasion had led to the discovery of drugs in the possession of another inmate, provided security officials with a reasonably credible tip that Lovell was to receive drugs from a visitor on August 7, 1981 (Paragraph C). The visitor turned out to be Gloria Kleinpeter, who had previously in writing agreed to submit to a search, but refused to be searched after entering the prison grounds (Paragraph D).

Probable cause to search existed from the moment of her refusal to submit to the search. Detaining the defendant until the warrant was obtained in the interest of preventing the possible destruction of the evidence was justified under the circumstances. The detention was not, as defendant alleges, an unreasonable or excessive restraint of her liberty. We accordingly affirm the judgment.

However, we note that the trial judge illegally fined the defendant $50.00 under the Crime Victims Reparations Act. Introducing contraband is not one of the enumerated crimes in LSA-R.S. 46:1805 for which reparation may be ordered. We therefore amend the defendant’s sentence to delete the fine. See LSA-C.Cr.P. art. 920. In all other respects the judgment of the trial court is affirmed.

AMENDED, AND AS AMENDED, AFFIRMED.

ON REHEARING

This rehearing is granted solely for the purpose of vacating our patent error ruling. After the decision was handed down, the trial judge below informed this court that the $50.00 was assessed not as a fine under LSA-R.S. 46:1805 but as costs under LSA-R.S. 46:1816(D), which authorizes a district court to assess $50.00 for felonies in each criminal action which results in a conviction, to be paid by the defendant and deposited into the Crime Victims’ Reparations fund. Our patent error ruling was therefore in error. We accordingly vacate it and reinstate the trial court’s assessment of cost.

In all other respects, the rehearing is denied.

      . Conditional pleas of this kind are allowed. State v. Crosby, 338 So.2d 584 (La.1976).


author: SHORTESS, Judge.

text:
    Phillip Harold DURAL, Individually and in His Capacity as Administrator of the Estate of His Minor Child, Andrea Dural v. CITY OF MORGAN CITY and Bart Mancuso.
    No. 83 CA 1251.
    Court of Appeal of Louisiana, First Circuit.
    March 5, 1984.
    William H. Lambert, Lafayette, for plaintiff-appellant.
    James B. Supple, Franklin, for defendants-appellees.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

The City of Morgan City and Bart Man-cuso filed this rule to show cause to dismiss the devolutive appeal of Phillip Harold Dural (appellant), individually and in his capacity as administrator of the estate of his minor child, Andrea Dural, on the basis that the judgment complained of is nonap-pealable. Appellant has filed no response.

On July 6, 1983, the trial judge signed a judgment to the effect that appellant’s damage suit would be dismissed if he failed to answer defendants’ interrogatories by July 18, 1983. Following appellant’s failure to file answers to the interrogatories, a judgment dismissing his suit with prejudice was rendered and signed by the trial judge on July 19, 1983.

On July 27, 1983, plaintiff filed a timely motion for a new trial which was denied on that same date. Notice of this judgment was mailed to the parties on July 28, 1983.

On September 15, 1983, plaintiff filed a motion for devolutive appeal from the “judgment rendered in this matter on July 27, 1983, and mailed on July 28, 1983.” The order granting the appeal stated that “a devolutive appeal is granted to plaintiff.” The notice of appeal subsequently mailed to the parties by the clerk’s office indicated that plaintiff had taken an appeal from the judgment of July 19, 1983. Ap-pellees filed this motion to dismiss on the basis that it was taken from the July 27 judgment denying plaintiff’s motion for a new trial. They argue that this judgment is nonappealable since it is interlocutory in nature and .there has been no showing of irreparable harm.

It is well settled that the denial of a motion for a new trial is an interlocutory judgment which can be appealed only upon a showing of irreparable harm. La.C.C.P. art. 2083; Cargill, Inc. v. Cementation Company of America, Inc., 429 So.2d 210 (La.App. 1st Cir.1983), writ denied, 434 So.2d 1097 (La.1983). Appellant has not alleged in either his motion for appeal or in response to this show cause that the denial of the motion for a new trial will cause him irreparable harm. In view thereof, it is clear that the July 27 judgment is not ap-pealable.

Nevertheless, there is a line of Supreme Court cases which holds that where a motion for appeal refers by date to the judgment denying a motion for new trial, but the circumstances indicate that the appellant actually intended to appeal from the final judgment on the merits, the appeal should be maintained as being taken from the judgment on the merits. Smith v. Hartford Accident and Indemnity Company, 254 La. 341, 223 So.2d 826 (La.1969); Fruehauf Trailer Company v. Baillio, 252 La. 181, 210 So.2d 312 (La.1968); Kirkeby-Natus Corporation v. Campbell, 250 La. 868, 199 So.2d 904 (La.1967). See also Johnson v. Johnson, 432 So.2d 1140 (La. App. 3rd Cir.1983). In these cases, the court did not require much to conclude that the appellant actually intended to appeal from the judgment on the merits and that it was merely due to inadvertency that the date of the judgment denying a new trial was given. Factors cited in these cases as showing such an intent include the appellant’s assertion to that effect, whether the parties briefed issues on the merits of the final judgment and whether the language of the order granting the appeal indicated that it was from the judgment denying a new trial.

In the present case, the order granting this appeal merely stated that appellant was granted a devolutive appeal, giving no indication that it was from the judgment denying his motion for a new trial. Additionally, the notice of appeal sent to the parties stated that appellant’s appeal was taken from the judgment of July 19, 1983, 1.e., the judgment dismissing his suit. Furthermore, appellant’s brief raises issues relating to the July 19 judgment of dismissal, as well as one relating to the denial of his new trial motion.

We find that these factors are sufficient to indicate that appellant’s intent was to appeal from the July 19 judgment of dismissal rather than from the judgment denying their motion for a new trial. Appellant’s inadvertence in listing the date of the wrong judgment is insufficient grounds for the dismissal of his appeal, particularly since appeals are favored and will be dismissed only when the grounds therefor are free from doubt. Fruehauf, 210 So.2d at 315; Delatte v, Roome, 432 So.2d 914 (La. App. 1st Cir.1983), writ denied, 439 So.2d 1073 (La.1983).

The motion to dismiss is denied at movers’ costs.

MOTION DENIED.

      . This suit has a long procedural history, including an earlier judgment which dismissed this suit, without prejudice, due to the failure of appellant’s counsel to appear at a pretrial conference and at a rule to compel answers to interrogatories. This judgment was reversed on appeal to this court and this matter remanded for further proceedings. Dural v. City of Morgan City, 407 So.2d 757 (La.App. 1st Cir.1981).

      . The fact that appellant also raised an issue as to the denial of his new trial motion is not necessarily a point against maintaining the present matter as an appeal from the judgment of dismissal. When an appellant has appealed from a final judgment, it is permissible for him to raise and the court to consider in connection with the appeal, complaints relating to the denial of a motion for a new trial. See Piper v. Rabalais, 407 So.2d 751 (La.App. 1st Cir.1981); Belaire v. Vanderbrook, 405 So.2d 1143, 1141 n. 1 (La.App. 1st Cir.1981), writ denied, 409 So.2d 659 (La.1982).


author: PONDER, Judge.

text:
    Edward James ARMSTEAD, Jr., et al. v. C. Paul PHELPS, et al.
    No. 83 CA 0439.
    Court of Appeal of Louisiana, First Circuit.
    April 3, 1984.

      Edward James Armstead, Jr., pro se.
    Joseph Erwin Kopsa, Baton Rouge, for defendant-appellee C. Paul Phelps, Secretary Dept, of Corrections; H.D. Byargeon, Colonel, La. State Penitentiary; Joe Lee Norwood, Major, La. State Penitentiary; Frank Blackburn Warden, La. State Penitentiary.
    Before PONDER, WATKINS and CARTER, JJ.
   PONDER, Judge.

Plaintiffs appealed the trial court’s dismissal of their 42 U.S.C. § 1983 action alleging that certain policies in effect at Camp J, Louisiana State Penitentiary, were violative of Amendments One, Five, Eight and Fourteen of the Federal Constitution and Article 1, Sections 3 and 12 of the Louisiana Constitution. The following policies in effect at Camp J were complained of: 1) the cuffing of prisoners’ hands behind them when transferred to and from all call-outs, the prison’s hospital, dentist or doctor, and the visitation area; 2) the allowance of one five-minute personal phone call per month with the prisoner’s hands cuffed behind him; 3) the denial of the privilege of viewing television and the failure to provide prisoners with access to newspapers and radios; 4) feeding the prisoners cold food; 5) prohibiting communication via letter (farm mail) between prisoners at Camp J and other prisoners; and 6) the confiscation of personal property without reimbursement and denial of the privilege of purchasing certain personal hygeine products from the prison canteen due to the actions of some prisoners.

The Commissioner, following the hearing, recommended that plaintiffs’ suit be dismissed. He found that the policies alleged by plaintiffs were not in dispute except for the question of whether the food was served cold. He held the rights asserted by the prisoners did not rise to constitutional standards. The trial judge followed the recommendations of the Commissioner and dismissed plaintiffs’ suit.

The issues on appeal are: 1) the constitutionality of policies resulting in restrictions on all inmates due to the actions of a few; 2) whether the prison policies violate the plaintiffs’ First, Fifth, Eighth and Fourteenth Amendment constitutional rights; and 3) whether the proper test to be applied is the “rational relationship” or “compelling interest” test.

Plaintiffs first argue that prisoners at Camp J should not be deprived of certain articles; that such policies deny them due process and equal protection of the law and constitute cruel and unusual punishment.

The evidence indicated that articles that could be used as containers were taken from the inmates due to the tendency to heat liquids or store human waste in the containers and throw contents at other inmates. The inmates were also prohibited from buying some highly flammable products from the prison canteen.

Prison administrators, who are responsible for maintaining internal order and discipline, must have great discretion in accomplishing their purpose within constitutionally acceptable parameters. Fulford v. Phelps, 365 So.2d 575 (La.App. 1st Cir:1978). The State has a responsibility under the Eighth Amendment to protect the safety of its prisoners. Streeter v. Hopper, 618 F.2d 1178 (5th Cir.1980).

The policy of depriving prisoners of certain articles is rationally related to the legitimate state interest of protecting the prisoners and guards and maintaining order. The purpose of the policy is primarily for safety reasons rather than to punish all prisoners for the acts of a few. We find no denial of due process or of equal protection under either the Federal or the State Constitution.

Such actions are not “cruel and unusual under contemporary standards” and do not "involve the unnecessary and wanton infliction of pain.” See Rhodes v. Chapman, 452 U.S. 337, 101 S.Ct. 2392, 69 L.Ed.2d 59 (1981).

There was no proof of any discrimination based on race, religion or national ancestry or of any arbitrary, capricious or unreasonable discrimination based on age, sex, or physical condition.

Plaintiffs next argue that the policies complained of viewed in their totality, offended their First, Fifth, Eighth and Fourteenth Amendment rights under the United States Constitution. We disagree.

Although the CCR unit, another disciplinary camp at Angola, has a television set, we find no constitutional violation in not providing the Camp J inmates with one. The inmates confined at CCR are generally there for a much longer term than those at Camp J. We agree with the Commissioner’s finding that such actions do not provide a discriminatory base. We know of no requirement that prisons must provide indigent prisoners with newspapers and magazines.

The requirement that the prisoners be cuffed or restrained outside of their housing tier is rationally related to the legitimate interest of safety, particularly where the prisoners involved are classified as extreme risks and maximum security prisoners. We find no constitutional violation.

The restriction of “farm mail” in and out of Camp J does not place any restrictions on United States mail according to the testimony of Warden Maggio. While a prison inmate retains a constitutionally protected right to reasonable correspondence with persons in the outside world, Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), institutional authorities have a peculiar and compelling interest in regulation of communications between prisoners. See Watts v. Brewer, 588 F.2d 646 (8th Cir.1978). We find that the restriction of “farm mail” is consistent with the prison’s legitimate policy of preventing drug trafficking and of maintaining security within the prison walls.

The general conditions of confinement at Camp J do not violate the prohibition against cruel and unusual punishment under the Eighth Amendment. The deprivations complained of are not “totally without penological justification” and are not “occasioned deliberately, as punishment or mindlessly with indifference to the prisoner’s humanity.” See Fulford v. King, 692 F.2d 11 (5th Cir.1982).

Plaintiffs next argue that the proper test to be applied in analyzing prisoners’ claims is the “compelling state inter-est” test rather than a “rational relationship” test. However, since the prisoners neither claim to be, nor are, members of a suspect class, the State need only demonstrate that its policies are rationally related to a legitimate state interest. Fulford v. King, supra. At any rate, we believe the actions would be approved under either test. We find no error.

Por these reasons, the judgment of the trial court is affirmed with costs assessed to the plaintiffs.

AFFIRMED.

      . 42 U.S.C. § 1983:
      Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or cause to be subjected, any citizen of the United States or other person within the jurisdiction thereof to- the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.

      . U.S. Const.Amendment I.:
      Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

      . U.S. Const.Amendment V.:
      No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

      . U.S. Const.Amendment VIII.;
      Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

      . U.S. Const.Amendment XIV.:
      Section I. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

      . La. Const. Art. I, § 3;
      No person shall be denied the equal protection of the laws. No law shall discriminate against a person because of race or religious ideas, beliefs, or affiliations. No law shall arbitrarily, capriciously, or unreasonably discriminate against a person because of birth, age, sex, culture, physical condition, or political ideas or affiliations. Slavery and involuntary servitude are prohibited, except in the latter case as punishment for crime.

      . La. Const. Art. 1, § 12;
      In access to public areas, accommodations, and facilities, every person shall be free from discrimination based on race, religion, or national ancestry and from arbitrary, capricious, or unreasonable discrimination based on age, sex, or physical condition.

      . It was also established that the method of restraint had generally been changed to cuffing the hands in front to waist belt restraints rather than behind the prisoner’s back.

      . The articles in question include “Pond’s Cocoa Butter”, styrofoam cups and typewriter covers.

      . Warden Maggio testified that farm mail which outlined drug sources and where one prisoner had left his "stash” had been intercepted.