author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. OPELOUSAS CHARITY BINGO, INC., et al., Defendant-Appellant.
    No. 84-1039.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      William B. Faust, III, Asst. Atty. Gen., New Orleans, for plaintiff-appellee.
    Darlene Simmons, Opelousas, for defendant-appellant.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

The State of Louisiana sought to declare certain bingo games and games of chance conducted in Opelousas by Opelou-sas Charity Bingo, Inc. (OCBI), Don W. Smith, Jerry Kotwitz and Darrell Wagley a public nuisance and to permanently enjoin their operation. The trial court ruled that OCBI was not a bona fide organization or club entitled to an exemption from the state’s gambling laws, and its operations constituted a public nuisance; therefore, it granted a permanent injunction against OCBI. Only OCBI brings this appeal, accordingly, the trial court judgment is final as to all other defendants. OCBI asserts that the trial court erred: (1) by its failure to grant a motion for continuance after evidence was presented that the defendants had inadequate notice of the hearing, depriving the defendants of due process of law as guaranteed by the Louisiana Constitution and the United States Constitution; (2) by granting an injunction after the State failed to present any evidence of wrongdoing or any illegal activities when the sole regulatory and investigatory authority lay with the licensing municipality; (3) by granting an injunction under LSA-R.S. 14:90 or 13:4724 in light of the law and the evidence presented at the hearing; and (4) by ruling that OCBI was not lawfully licensed because of OCBI’s failure to state in the application for a license a specific charitable purpose for which its net proceeds should be devoted. Since OCBI did not brief assignment of error three, it is considered abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal; Stephens v. State, Through Dept. of Transp., 440 So.2d 920 (La.App. 2nd Cir.1983), writ denied, 443 So.2d 1119 (La.1984). We affirm for the following reasons.

FACTS

Jerry Kotwitz and Don W. Smith, residents of Monroe, incorporated OCBI in Ouachita Parish on June 1, 1984. The articles of incorporation provide, inter alia, that: (1) its purpose and object are to provide services and help to needy families and people in St. Landry Parish; (2) it is organized exclusively for charitable, educational and literary purposes; (3) it is empowered to pay reasonable compensation for services rendered; and (4) no salaries shall be paid to any member or officer of the corporation. In summary, the articles are clear that OCBI purported to be a nonprofit organization dedicated to charitable, literary and educational purposes with no part of its net corporate profits inuring to the benefit of its officers.

In early June 1984 the City of Opelousas adopted an ordinance under the authority of R.S. 33:4861.1 et seq. which provided for the issuance of a license permitting charitable bingo and raffles within its corporate limits. On June 25, 1984, OCBI submitted an application to license its operation of charity bingo games and raffles. At an administrative meeting, the Opelousas City Council accepted OCBI’s application and issued a license on October 3, 1984, permitting OCBI to conduct bingo in accordance with the Opelousas City Ordinance and R.S. 33:4861.1 et seq. The license specifically mentions that the corporation’s net proceeds were to be devoted to persons, firms, agencies or institutions of educational, charitable, or public spirited needs who shall be designated by OCBI’s board of directors and that the license was to be displayed where the games were to be conducted. There is no evidence that the license was displayed. On October 11, 1984, a second license was issued by the Opelou-sas City Clerk to OCBI to include raffles.

• OCBI began conducting bingo and other games of chance in Opelousas at 1693 Cres-well Lane on July 14, 1984, while its application was pending but without a license. Financial summaries prepared weekly by Borel Dauphin, OCBI’s accountant, and filed with the City of Opelousas show that from July 14, 1984, through September 29, 1984, OCBI grossed approximately 1.3 million dollars from the playing of bingo, carney wheel games, and pull tab games. At the time of the hearing on the State’s petition for injunctive relief, OCBI contended it was operating at a loss totaling approximately $68,000 and had donated only $500 to a needy organization.

MOTION FOR CONTINUANCE

OCBI argues that the trial court erred in failing to grant a motion for continuance alleging inadequate notice, thus depriving OCBI due process of law.

LSA-R.S. 13:4724 provides the procedure for the injunction to abate the nuisance. It provides, in pertinent part, as follows:

All actions brought under this Sub-part shall be tried in the following manner:
(1) Upon the filing of any suit the district judge, whether in term or vacation, shall immediately issue a rule on the defendant to show cause why the nuisance complained of should not be abated and why an injunction should not issue restraining the operation of the gambling house. This rule shall, at the time of its issuance, be fixed for hearing not later than five days (counting Sundays, half-holidays and holidays) from the date of its issuance, and shall be heard by preference over all other matters and cases fixed for the same day and shall be heard continuously day after day until submitted for adjudication." (Emphasis added.)

The State’s petition for an injunction was filed October 16,1984, and the rule to show cause was issued that date setting the hearing for October 19. Although the record is void of any proof that OCBI was ever served, its attorney acknowledged that service was made on one of its agents for service of process in Ouachita Parish on October 18, 1984.

Initially OCBI objected at the hearing on October 19 and moved for a continuance alleging short notice and inadequate time to prepare for trial. The trial court referred to LSA-C.C.P. Art. 3602 which provides that a preliminary injunction shall not issue unless no fewer than two days notice is given after service of the notice. Therefore, the trial court announced that it was inclined to grant the continuance but it would also issue a temporary restraining order prohibiting OCBI’s operation pending the hearing. OCBI then elected to withdraw its motion for continuance and the hearing proceeded to final adjudication.

By withdrawing its motion for a continuance OCBI waived its objection, therefore, we reject OCBI's complaint. Furthermore, there is no showing that OCBI was prejudiced by holding the hearing on the scheduled date, particularly since its accountant was present at the hearing and testified with all supporting documentation provided him by OCBI regarding its corporate income and expenditures.

PUBLIC NUISANCE

OCBI contends that its operations were legally authorized by the Opelousas City Council and do not constitute a public nuisance as provided in either R.S. 13:4721 et seq. or R.S. 14:90 et seq.

Unlike a 'preliminary injunction which requires only the presentation of a prima facie case to justify its issuance, a permanent injunction demands full proof by a preponderance of the evidence. Guidry v. Primeaux, 410 So.2d 1249 (La.App. 3rd Cir.1982); Picard v. Choplin, 306 So.2d 918 (La.App. 3rd Cir.1975); Schwegmann Bros. G.S. Mkts. v. Louisiana Milk Com’n, 290 So.2d 312 (La.1974); State Board of Education v. Anthony, 289 So.2d 279 (La.App. 1st Cir.1973), writ denied, 292 So.2d 246 (La.1974).

LSA-Const. Art. 12, Sec. 6 provides that the legislature shall suppress and define gambling.

LSA-R.S. 14:90 defines gambling as follows:

“A. Gambling is the intentional conducting, or directly assisting in the conducting, as a business, of any game, contest, lottery, or contrivance whereby a person risks the loss of anything of value in order to realize a profit. ”

R.S. 13:4721 defines a gambling house in pertinent part as:

“... (1) any place whatever where any game of chance of any kind or character is played for money, for wagers, or for tokens, and where the conduct of such place operates, directly or indirectly, to the profit of one or more individuals and not exclusively to the direct profit of the actual participants in such game; and (2) any place whatsoever where races, athletic contests and sports and games are not actually held and where opportunity is afforded for wagering upon races, athletic contests, sports and games of chance. ”

LSA-R.S. 14:90.2(B) exempts certain organizations from the gambling laws and provides in pertinent part as follows:

“B. This Section shall not prohibit activities authorized under the Charitable Raffles, Bingo and Keno Licensing Law,1 nor shall it apply to bona fide fairs and festivals conducted for charitable purposes. ” (Footnote omitted.)

The Charitable Raffles, Bingo and Keno Licensing Law is contained in LSA-R.S. 33:4861.1 et seq. Particularly, R.S. 33:4861.4 provides in pertinent part:

“A. It shall be lawful for any incorporated municipality or, in absence of such municipality, the governing body of any parish to license bona fide veterans, charitable, educational, religious, or fraternal organizations, civic and service clubs, to hold and operate the specific kind of game or games of chance commonly known as raffle or raffles played by drawing for prizes or the allotment of prizes by chance, by the selling of shares or tickets or rights to participate in such game or games and by conducting the game or games accordingly, and the game of chance commonly known as bingo or keno played for prizes with cards bearing numbers or other designations, five or more in one line, the holder covering numbers, as objects, similarly numbered, are drawn from a receptacle and the game being won by the person who first covers a previously designated arrangement of numbers on such a card, by selling shares or tickets or rights to participate in such games and by conducting the games accordingly when the entire net proceeds of such games of chance are to be devoted to educational, charitable, patriotic, religious, or public spirited uses, and when so licensed, to hold, operate, and conduct such games of chance exclusively by its active members pursuant to this Part and for such licensee in such municipality or parish, to sell shares or tickets or rights to participate in such game or games of chance therein, and under such conditions and regulations for the supervision and conduct thereof, as shall be prescribed by rules and regulations duly adopted, from time to time, by the municipality or governing body of the parish not inconsistent with the provisions of this Part, and for any person or persons to participate in and play such games of chance conducted under any license. ” (Emphasis added.)

In its decision to declare OCBI’s activities a public nuisance the trial court succinctly stated:

“I conclude that the defendant is not within the licensing provisions of Louisiana Revised Statutes 33:4861.1 et se-quitur. That law was originally enacted (Act 609 of1968) as part of the criminal code to modify the section prohibiting gambling. Its purpose was to immunize from criminal prosecution organizations and their members that have traditionally engaged in games of chance as a means of raising funds to promote their nonbusiness ends. It was not enacted to allow for the present situation. The law provides that municipalities may license ‘-bona fide veterans, charitable, educational, religious or fraternal organizations, civic and service clubs to hold and operate-’ certain games of chance ‘-when the entire net proceeds of such games of chance are to be devoted to educational, charitable, patriotic or religious or public-spirited uses. ’ The evidence does not indicate that defendant is conducting such a charitable endeavor as the law contemplates. It has operated at a substantial loss for two months although gross receipts approximated $1.2 million. Substantial funds are going to nonbingo enterprises servicing the bingo operation. The evils of gambling are present. Others are making money; defendant is not making money. No substantial charitable effect has been achieved; only one $500 donation has been made. The law does not contemplate such a - lopsided situation.
The defendant is not such a bona fide organization or club as the law contemplates. More important, it is certainly not operating as such an organization or club. ”

Since R.S. 33:4861.1 et seq. was enacted as an exception to LSA-Const. Art. 12, § 6 which demands the suppression of gambling, it shall be strictly construed.

The carefully carved exception to the constitutional and statutory prohibition against gambling applies only to bona fide charitable organizations or clubs specifically named in R.S. 33:4861.4, e.g., “bona fide veterans, charitable, educational, religious or fraternal organizations, civic and service clubs.” There is no statutory provision or jurisprudential law that allows a person and/or corporation with the exception of the aforementioned under R.S. 33:4861.4 to hold and operate games of bingo, raffle and keno. It was not the intent of the legislature to allow the operation of such games other than by those specifically mentioned. It is clear that the exception to the laws against gambling were meant to be strictly governed and controlled. A person and/or corporation operating under the guise of “nonprofit” invites gambling, as shown in the present case, and, as well stated by the trial judge, “the evils of gambling are present.” We therefore find that the licenses to OCBI should not have been issued.

OCBI does not operate in the manner normally associated with any of the philanthropic, charitable and altruistic organizations which were intended to benefit from R.S. 33:4861.1 et seq. The record clearly reveals that it is difficult to differentiate between the nonprofit corporation, OCBI, and some of its board members. LSA-R.S. 33:4861.12 sets forth the requirements for reasonable expenses and prohibition against a commission, salary, compensation, reward or recompense to any person holding, operating or conducting permitted games of chance. In pertinent part it provides:

“... except such as are bona fide items of reasonable amount of goods, wares and merchandise furnished or services rendered, which are reasonably necessary to be purchased or furnished for the holding, operating or conducting thereof, under any circumstances whatever, and no commission, salary, compensation, reward or recompense whatever shall be paid or given, directly or indirectly, to any person holding, operating or conducting, or assisting in the holding, operation or conduct, of any game of chance so held, operated or conducted. ”

The building leased to conduct OCBI’s operations is shared by Kotwitz to sell food and drink. Even though bingo games are held once weekly and OCBI shares rental space with the restaurant and beer concessions, OCBI pays rent of $6,000 per week to David Angel, a LaPorte, Texas resident and an OCBI board member, in cash payments most of the time; the total monthly rental on the building is $25,861. Jerry Kotwitz, one of OCBI’s incorporators and a board member, is an investor not only in the beer concessionaire, Bingo Kitchen, but also in United Brokers, Inc., the owner of the restaurant. In addition United Brokers, Inc. has the weekly maintenance contract with OCBI and has been paid sums averaging in excess of $4000 weekly even though bingos are held only once a week and no more than six times a month. Jerry Kotwitz made two loans to OCBI, without corporate authority requesting such funds, and was partially repaid by simply withdrawing cash from the gross proceeds. The success of Bingo Kitchens and United Broker, Inc., is directly tied to OCBI’s bingo operations. Bingo patrons are bused to Opelousas from cities in Louisiana (Shreveport, Baton Rouge, New Orleans, Leesville, Monroe, Lafayette, Pontchatoula, Alexandria) and Texas (Austin, Port Arthur, Na-vasota, Beaumont, Tyler, Houston, Humble, Bryan, Pasadena); the bus companies are paid by OCBI for the transportation as well as the promotion of OCBI’s operations. Kotwitz’s reasoning for making the loans to OCBI belies the purely philanthropic purpose of OCBI: he testified that without the influx of bingo enthusiasts the restaurant and beer concessions would not be profitable. The record convinces us that OCBI used the vehicle of a nonprofit corporation as a sham to front an illegal gambling operation.

The record shows that OCBI has conducted weekly games including bingo, carney wheel games, straight line bingo, and pull tabs since July 14, 1984. The first license issued to OCBI was dated October 3, 1984, to conduct bingo games. The second license issued to OCBI, although dated October 3, 1984, but in fact issued later, included bingo and raffles. However, straight line bingo and/or racehorse bingo, carney wheel, and pull tabs,. the games OCBI continuously conducted since July 14, 1984, are games of chance not permitted by law. Since we have determined that OCBI is not a bona fide organization as intended by the legislature, and as such disqualified from the gambling exception provided in R.S. 33:4861.1 et seq. and 14:90.2, the State has proven by a preponderance of the evidence that OCBI’s operations constituted a public nuisance as defined in R.S. 13:4721 et seq.

For the foregoing reasons the judgment of the trial court permanently enjoining Opelousas Charity Bingo, Inc. from conducting bingo and other games of chance at 1693 Creswell Lane, Opelousas, Louisiana, or conducting like operations of a public nuisance within the State of Louisiana is affirmed. All costs of the trial court and of this appeal are assessed against Opelou-sas Charity Bingo, Inc.

AFFIRMED.


source: Caselaw Access Project

author: KING, Judge. STOKER, Judge,

license: Public Domain

text:
    Mildred A. BROUSSARD, Plaintiff-Appellant, v. Daniel G. BROUSSARD, Defendant-Appellee.
    No. 84-72.
    Court of Appeal of Louisiana, Third Circuit.
    Feb. 5, 1985.

      J.N. Prather, Jr., Lafayette, for plaintiff-appellant.
    G. Paul Marx, Lafayette, for defendant-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

The issues presented by this appeal are whether the trial court erred in denying permanent alimony after divorce and whether the trial court awarded a sufficient amount for child support.

Mildred A. Broussard and Daniel G. Broussard were married on October 14, 1978. One child, Christina, was born of the marriage and was four years old at the time of trial. After a number of separations and reconciliations, the parties began living separate and apart on March 20, 1981.

On March 28, 1982, Mrs. Broussard filed suit for a divorce on the basis of having lived separate and apart from her husband for more than one year. Mrs. Broussard also sought sole custody of Christina, child support in the sum of $500.00 per month, and alimony in the sum of $250.00 per month. Mr. Broussard reconvened seeking joint custody of Christina and praying that Mrs. Broussard’s claims for child support and alimony be dismissed. In her supplemental and amending petition, Mrs. Brous-sard alleged that she left the matrimonial’ domicile voluntarily due to Mr. Broussard’s mental and physical cruelty and his habitual intemperance. This was denied by Mr. Broussard.

After trial on the merits, judgment of divorce was granted on the basis of the parties having lived separate and apart for more than one year, and sole custody of Christina was granted to Mrs. Broussard, subject to visitation by and with Mr. Brous-sard. The trial court ordered that Mr. Broussard pay child support in the sum of $250.00 per month and further ordered that he provide medical and dental insurance for Christina. Mrs. Broussard’s claim for permanent alimony after divorce was denied upon the trial court finding that she was not free from fault in the termination of the marriage. Mrs. Broussard appeals seeking to reverse the trial court’s judgment denying her permanent alimony after divorce and seeking an increase in the amount of child support awarded by the trial court. We affirm both the trial court’s denial of permanent alimony after divorce and the amount awarded for child support.

PERMANENT ALIMONY

In order to receive permanent alimony after divorce, the claimant spouse must be free from fault. LSA-C.C. Art. 160. The “fault” contemplated in Art. 160 is synonymous with the fault grounds for separation and divorce contained in LSA-C.C. Arts. 138 and 139. Boudreaux v. Boudreaux, 407 So.2d 1363 (La.App. 3rd Cir.1981). It is not necessary that a spouse be totally blameless in the marital discord; the fault must be an independent contributory or approximate cause of the separation. Watson v. Watson, 442 So.2d 1310 (La.App. 3rd Cir.1983), writ den., 445 So.2d 450 (La.1984); Palmer v. Palmer, 433 So.2d 346 (La.App. 3rd Cir.1983), writ den., 441 So.2d 213 (La.1983); Herrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982). The spouse seeking permanent alimony has the burden of proving freedom from fault. Palmer v. Palmer, supra.

In his oral reasons for judgment, the trial judge made the following finding:

“... However, the plaintiff has failed to establish by a preponderance of the evidence that the defendant was at fault or that she was — or that the plaintiff was free from fault, and therefore the Court will deny alimony — deny permanent alimony.”

No further indication is given in the reasons for judgment as to the specific fault found on the part of Mrs. Broussard. Mr. Broussard asserts that she is at fault due to abandonment and cruel treatment. Mrs. Broussard asserts that Mr. Broussard was guilty of cruel treatment and habitual intemperance which justified her leaving the matrimonial domicile. Mr. Broussard’s fault is relevant only insofar as it may have excused Mrs. Broussard’s “abandonment.”

The only testimony present at trial regarding fault by the parties is that of Mr. and Mrs. Broussard. Their testimony is conflicting, and the allegations made by each are denied by the other.

According to Mrs. Broussard, her husband was guilty of acts of mental cruelty through telling her that she was worthless and by doing things calculated to make her feel worthless. Mrs. Broussard also claims instances of physical cruelty, some of which occurred after the separation. She testified at trial that she frequently was forced to sleep on the couch because her husband would “accidentally” hit her in his sleep. Her allegations of habitual intemperance are based on a general assertion that her husband began drinking heavily before they finally separated.

Mr. Broussard denies all allegations of cruelty and habitual intemperance made by Mrs. Broussard. He claims that she was mentally cruel by repeatedly leaving the matrimonial domicile giving no reason other than that she no longer wanted to be married. He also claims that she arbitrarily refused him sexual relations. He testified that this refusal was frequent toward the end of the marriage.

In our opinion that evidence shows, not abandonment by Mrs. Brous-sard, but a mutual agreement by the parties that she would leave the matrimonial domicile. Such an agreement is not sufficient to show the fault on the part of the leaving party. See Gilberti v. Gilberti, 338 So.2d 971 (La.App.4th Cir.1976). We are further supported in this conclusion by a document presented into evidence at the time of the trial by Mr. Broussard. The document is an affidavit executed by both Mr. and Mrs. Broussard on the date they physically separated, March 20, 1981. It reads as follows:

“Before me, the undersigned Notary, and in the presences (sic) of the undersigned witnesses, personally came and appeared, Daniel G. Broussard and Mildred A. Broussard, husband and wife, who declared that as of Friday, March 20, 1981, they have begun to voluntarily live separate and a part (sic); that neither has grounds for a separation other than irreconcilable differences.
“This affidavit is made so that either party can show that there has been no abandonment by one spouse of the other. “Furthermore, Mildred A. Broussard, in consideration of this Agreement and other valuable consideration, agrees to waive her rights to alimony.
“Daniel G. Broussard to have the child, Mary Christina Broussard, from Friday Seven o’clock (7:00) P.M. to Seven o’clock (7:00) P.M. Sunday night for visitation every weekend and Daniel G. Broussard will pay $250.00 a month for the child’s support, payable on the first day of the month.”

Mrs. Broussard makes a general claim that she executed the document under duress, and testified that she knew the provisions regarding her waiver of alimony was unenforceable. According to counsel for Mr. Broussard, the document was entered into evidence, not for the purpose of seeking enforcement, but to impeach Mrs. Broussard’s credibility concerning her reasons for leaving and to corroborate Mr. Broussard’s claim that she left him without just cause. We find that it is not clear from the affidavit whether the waiver of alimony was for alimony pendente lite or permanent alimony, but we note that a waiver of permanent alimony may be valid under the most recent matrimonial regimes legislation. See the discussion in Monk v. Monk, 376 So.2d 552 (La.App. 3rd Cir.1979).

When questioned about the document, Mr. Broussard testified that he did not force Mrs. Broussard to sign the agreement, but that she would not leave until it was signed. He also asserted that Mrs. Broussard hired the attorney who drew up the agreement, but he agreed to pay the attorney’s fees. Mr. Broussard makes no claim that he was under any duress to make the agreement; therefore, we disagree with his claim that the agreement corroborates his position that he was abandoned. Mr. Broussard’s testimony and the agreement clearly show that all parties reached a mutual agreement that Mrs. Broussard should leave the matrimonial domicile.

A trial judge’s determination on the issue of fault is a factual finding which cannot be disturbed on appeal absent manifest error. Pearce v. Pearce, 348 So.2d 75 (La.1977); Tate v. Tate, 442 So.2d 1379 (La.App. 3rd Cir.1983). It is well settled that the unjustified persistent refusal of sexual intercourse to one’s spouse is cruel treatment constituting fault under LSA-C.C. Art. 138 and is a legal ground for separation. Von Bechman v. Von Bechman, 386 So.2d 910 (La.1980); Morgan v. Morgan, 462 So.2d 897 (La.App. 3rd Cir.1984); Bourque v. Landry, 293 So.2d 218 (La.App. 3rd Cir.1974); Taddonio v. Kinney-Taddonio, 428 So.2d 486 (La.App. 4th Cir.1983); Saucier v. Saucier, 357 So.2d 1378 (La.App. 4th Cir.1978).

The trial judge obviously chose to believe the husband’s testimony that his wife persistently and unjustifiably denied him sexual relations. In this delicate area of marital relations the trial judge will almost always be faced with determining the credibility of a husband and wife for the simple reason that witnesses are rarely present before, during, or immediately after the sexual acts of a married couple which usually take place in private.

As appeal court judges, we are only able to review the cold words of the witnesses’ testimony as reflected in the black type on the white paper of a transcript of testimony made by a court reporter. We are not able to see and hear the witnesses as is the trial judge. The witnesses’ mannerisms, gestures, voice inflections, body movements, and other subtle actions while on the witness stand giving testimony can be seen and heard by the trial judge and are part of his evaluation of a witness’ credibility. In Pearce v. Pearce, 348 So.2d 75 (La.1977), the Louisiana Supreme Court stated that:

“... In the area of domestic relations, much discretion must be vested in the trial judge and particularly in evaluating the weight of evidence which is to be resolved primarily on the basis of the credibility of .witnesses. The trial judge having observed the demeanor of the witnesses is in the best position to rule on their credibility. Trosclair v. Trosclair, 337 So.2d 1216 (La.App. 1st Cir.1976). The factual findings of the trial court are therefore to be accorded very substantial weight on review. Gilberti v. Gilberti, 338 So.2d 971 (La.App. 4th Cir.1976).”

We have carefully considered the evidence in this case in light of the rule of appellate review set forth in Arceneaux v. Arceneaux, 426 So.2d 745 (La.App. 3rd Cir.1983) and Canter v. Koehring Company, 283 So.2d 716 (La.1973) and we conclude that the trial court did not clearly err in accepting the testimony of Mr. Broussard over that of Mrs. Broussard.

CHILD SUPPORT

Mrs. Broussard asserts that the $250.00 per month awarded to her for child support along with the requirement that Mr. Broussard pay medical and dental insurance for the minor child is not sufficient. She seeks an increase in the amount of child support to $500.00 per month. Mrs. Broussard’s affidavit of income and expenses indicates she has no income but has monthly expenses in the amount of $1,736.68, of which $678.06 is attributable to the minor child of the marriage. Mrs. Broussard also has an older child who was not born of this marriage. She introduced into evidence a ledger sheet indicating that she has received over $25,000.00 from her father from the time she and Mr. Brous-sard separated up until March of 1983. According to Mrs. Broussard, these funds were for the necessities of life and she is obligated to repay her father for these amounts. At the time of trial, June 1983, Mrs. Broussard was a senior majoring in criminal justice at the University of Southwestern Louisiana and she expected to graduate in December of the same year. Her resume introduced into evidence by Mr. Broussard indicates that she had previously been gainfully employed.

Mr. Broussard’s affidavit of monthly income and expenses dated April 25, 1983 shows that he has a total net monthly income of $1,739.00 and expenses in the amount of $1,529.00, a difference of $210.00. Mr. Broussard’s financial declaration dated April 28, 1980 shows that he had a net monthly income of $1,342.00 and expenses in the amount of $1,102.00, a difference of $240.00. The 1983 affidavit of income and expenses shows substantial increases in Mr. Broussard’s entertainment and travel expenses, installment payments and incidentals such as personal grooming, gifts, alcohol and tobacoo.

In considering the affidavits of income and expenses filed by the parties, the circumstances and resources of each and the needs of the child, we find that the trial court did not abuse its wide discretion in awarding $250.00 per month in child support.

For the reasons given above, the trial court’s judgment denying permanent alimony to Mrs. Broussard and awarding her child support of $250.00 per month is affirmed. The plaintiff-appellant is cast with all costs of this appeal.

AFFIRMED.

STOKER, J., concurring in part and dissenting in part for which written reasons are assigned.

STOKER, Judge,

concurring in part and dissenting in part.

I concur in the affirmance of the trial court’s award of child support.

I respectfully dissent from that portion of the majority opinion which holds that Mrs. Broussard is not free from fault, and thus not entitled to permanent alimony. I agree that the evidence shows no abandonment by Mrs. Broussard, but only a mutual agreement to separate. I disagree that the trial judge could have found mental cruelty by Mrs. Broussard due to a persistent refusal of sexual relations.

As stated by the majority, it is not necessary that a spouse be totally blameless in the marital discord; the fault must be an independent contributory or proximate cause of the separation. Harrington v. Campbell, 413 So.2d 297 (La.App. 3rd Cir.1982). In order to constitute cruel treatment, the denial of sexual relations must be persistent and unjustified. Von Bechman v. Von Beckman, 386 So.2d 910 (La.1980). Mr. Broussard testified that his wife arbitrarily denied him sexual relations and that this denial became more frequent toward the end of the marriage. Mrs. Broussard testified that she frequently was forced to sleep on the couch because her husband would “accidentally” hit her in his sleep.

In our opinion, the trial court could not have found that the testimony of either of the parties established a persistent and unjustified refusal of sexual relations. The testimony clearly establishes a pattern of mutual incompatibility which is not sufficient to constitute cruel treatment. See Langton v. Langton, 442 So.2d 1308 (La.App. 3rd Cir.1983). It is clear from the testimony of both Mr. and Mrs. Broussard that their relationship deteriorated rapidly toward the end of the marriage.

For these reasons, I respectfully dissent from that portion of the majority opinion finding that Mrs. Broussard is not entitled to permanent alimony. I would reverse this portion of the trial court’s judgment and remand the case to the trial court for further proceedings. I would assess the costs of this appeal to defendant-appellee.

CONCURRING IN PART, DISSENTING IN PART.


author: PER CURIAM.

text:
    G.Z., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 82-1609.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Bennett H. Brummer, Public Defender, and Beth C. Weitzner, Asst. Public Defender, for appellant.
    Jim Smith, Atty. Gen., and Richard E. Doran, Asst. Atty. Gen., for appellee.
    Before SCHWARTZ, C.J., and HUB-BART and FERGUSON, JJ.
   PER CURIAM.

Reversed on authority of A.O. v. State, 456 So.2d 1173 (Fla.1984).


text:
    Stephen WEINSTEIN and Nancy Weinstein, Appellants, v. LUMBERMENS MUTUAL CASUALTY COMPANY, Appellee.
    No. 84-601.
    District Court of Appeal of Florida, Third District.
    Feb. 5, 1985.
    Norman S. Klein and Alan D. Sackrin, North Miami Beach, for appellants.
    Kimbrell, Hamann, Jennings, Womack, Carlson & Kniskern and Thomas E. Scott, Miami, for appellee.
    Before BARKDULL, NESBITT and DANIEL S. PEARSON, JJ.
   PER CURIAM.

Affirmed. Old Republic Insurance Company v. Whitworth, 442 So.2d 1078 (Fla. 3d DCA 1983).


text:
    STATE of Louisiana v. Thomas Lee WARD.
    No. 84-KH-2055.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Ward, Thomas Lee, applying for remedial writs; Parish of Orleans, Criminal District Court, Div. “I”, No. 297-030.

Denied. Relator must first seek relief in the district court.


text:
    STATE ex rel. John FULFORD v. Ross MAGGIO, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-2194.
    Supreme Court of Louisiana.
    Jan. 14, 1985.
   In re Fulford, John, applying for remedial writs; Parish of Lafayette, 15th Judicial District Court, Div. “H”, No. 35423.

Denied.


text:
    STATE of Louisiana v. Phillip E. GLINDMEYER.
    No. 85-KD-0195.
    Supreme Court of Louisiana.
    Jan. 29, 1985.
   In re Glindmeyer, Phillip E., applying for writ of habeas corpus; Parish of Livingston, 21st Judicial District Court, Div. “E”.

Denied.


author: CURRAULT, Judge.

text:
    Gwendolyn GROS, et al. v. OCCIDENTAL CHEMICAL CORPORATION, Dr. Armand Hammer, A. Robert Abboud, General Electric Corporation, et al.
    No. 84-C-511.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 18, 1984.
    Writ Denied Feb. 8,1985.
    Robert J. Caluda, New Orleans, for respondents.
    Kurt S. Blankenship, Jr., New Orleans, for relators.
    Before KLIEBERT, CURRAULT, and GRISBAUM, JJ.
   CURRAULT, Judge.

This matter originated in the Twenty-Ninth Judicial District Court, Parish of St. Charles, wherein the Honorable Mary Ann Vial Lemmon ruled in favor of plaintiffs, dismissing defendants’ declinatory exception to in 'personam jurisdiction. We now reverse.

Francois and Gwendolyn Gros filed suit, individually and on behalf of their minor children, for damages stemming from a malignant cancer contracted by Francois Gros allegedly as a result of his exposure to various toxic chemicals and substances while employed at Hooker Chemicals and Plastics Corporation (now known as Occidental Chemical Corporation, a wholly owned subsidiary of Occidental Petroleum Corporation). Numerous parties were made defendants including Dr. Armand Hammer and Mr. A. Robert Abboud, respectively, the chairman of the board and president of Occidental Petroleum Corporation.

Defendants, Abboud and Hammer, filed a declinatory exception to plaintiffs’ petition on the grounds that they lacked sufficient personal contacts with our state so as to enable a Louisiana court to maintain personal jurisdiction over them. This exception was supported by the affidavits of each defendant and that of Paul C. Hebner, Executive Vice-President and Secretary of Occidental Petroleum Corporation. No evidence was introduced by plaintiffs to contradict any of the asserted facts contained in these affidavits.

The declinatory exception was heard by the trial court on September 10, 1984, and by judgment dated September 13, 1984, the exception was overruled. Defendants then filed a notice of intention to apply for supervisory writs to the Fifth Circuit Court of Appeal, State of Louisiana. Said writ application was filed timely on October 1, 1984, and by judgment dated October 10, 1984, the Fifth Circuit Court of Appeal denied the writ application. A petition for supervisory writs was then timely filed with the Louisiana Supreme Court and by judgment dated November 16, 1984, the writ application was granted and the case remanded to the Fifth Circuit Court of Appeal for briefing, argument and an opinion. 460 So.2d 596.

The exclusive basis for plaintiffs’ attempt to obtain jurisdiction over Dr. Hammer and Mr. Abboud is LSA-R.S. 13:3201 et seq., the Louisiana Long Arm Statute. Both Dr. Hammer and Mr. Abboud are nonresidents of this state, so the threshold issue is whether they personally have sufficient contacts with this state so as to enable a Louisiana court to exercise jurisdiction over them.

Over the years, certain general principles in making such determinations have been established:

(1) A resolution of the issue of whether or not a defendant is subject to personal jurisdiction of a court in Louisiana hinges upon a determination of whether or not the defendant has “minimum contacts” with Louisiana which are sufficient to satisfy the defendant’s rights to due process of law under the United States and Louisiana constitutions. Latham v. Ryan, 373 So.2d 242 (La.App. 3d Cir.1979); International Shoe Company v. State of Washington, 326 U.S. 310 66 S.Ct. 154, 90 L.Ed. 95 (1945).

(2) Whether or not a particular defendant has minimum contacts with the state is to be determined from the facts and circumstances peculiar to each separate case. Drilling Engineering, Inc. v. Independent Indonesian American Petroleum Company, 283 So.2d 687 (La.1973).

(3) This test requires that the particular contacts that the nonresident defendant has with the state be such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice”. Latham, supra.

The affidavit executed by Dr. Hammer stated the following:

(1) Dr. Hammer has been a resident and domiciliary of the State of California since 1956.

(2) He has never had any residence in the State of Louisiana.

(3) He has never had any business office in the State of Louisiana.

(4) He has never engaged in any business activity in the State of Louisiana.

(5) He has never contracted to supply any services in the State of Louisiana.

(6) He has no interest in any real property in the State of Louisiana.

(7) He does not now nor has he ever derived any personal income directly related to any personal business activities in the State of Louisiana.

Mr. Abboud’s affidavit recites the same basic facts, except that Mr. Abboud has been a resident and domiciliary of the State of California only since 1980, and that prior to that he was a resident and domiciliary of the State of Illinois.

Mr. Hebner’s affidavit indicates that Dr. Hammer was a director of Occidental Chemical Corporation only from 1968 to February of 1973. He was never an officer or an employee. Plaintiff did not begin his employment with Occidental Chemical Corporation until April of 1973, some two months after Mr. Hammer resigned his directorship. Mr. Hebner’s affidavit further indicates Mr. Abboud has never had any direct business relations with Occidental Chemical Corporation.

It is clear, after a complete review of the record, that neither Dr. Hammer nor Mr. Abboud, individually, have sufficient minimum contacts with this state so as to justify the exercise of personal jurisdiction over them. Defendants have amply demonstrated a complete lack of sufficient minimum contact which plaintiffs have failed to contradict.

Accordingly, the judgment denying defendants’ exception to in personam jurisdiction, dated September 13,1984, is hereby reversed and defendants, Dr. Armand Hammer and Mr. A. Robert Abboud, are hereby individually dismissed from the instant suit. This matter is now remanded back to the district court for further proceedings not inconsistent with this judgment. Each party is to pay its own costs of this appeal.

REVERSED AND REMANDED.

      . LSA-R.S. 13:3201:
      "A court may exercise personal jurisdiction over a nonresident, who acts directly or by an agent, as to a cause of action arising from the nonresident’s
      a. transacting any business in this state;
      b. contracting to supply services or things in this state;
      c. causing injury or damage by an offense or quasi offense committed through an act or omission in this state;
      d. causing injury or damage in this state by an offense or quasi offense committed through an act or omission outside of this state if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this state;
      e. having an interest in, using or possessing a real right or immovable property in this . state, or;
      f. nonsupport of a child or spouse or former spouse domiciled in this state to whom an obligation of support is owed and with whom the nonresident formerly resided in this state;
      g. parentage and support of a child who was conceived by the nonresident while he resided in or was in this state.”


text:
    Lloyd DOUGLAS v. G.H.R. ENERGY CORPORATION, TCP Construction Co., Teledyne-Faris Corporation, Groth Manufacturing Co., Inc. and “John Doe” (Case No. 23,315 and Consolidated Cases).
    No. 84-C-641.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 19, .1984.

      Patrick F. Lee, Joseph R. Ward, Jr., New Orleans, for relator.
    Christopher T. Grace, Jr., John P. Ma-nard, Jr., John J. Weigel, Robert E. Couhig, Jr., Edward F. Downing, III, Donald A. Hammett, Benjamin R. Slater, III, New Orleans, for respondent.
    Before CURRAULT, GRISBAUM and DUFRESNE, JJ.
   CURRAULT, Judge.

This matter arises from an explosion and fire which occurred at Good Hope Refinery on June 19, 1981. Twelve individuals filed separate lawsuits seeking damages allegedly sustained in the accident. All lawsuits have been consolidated for trial by jury beginning March 4, 1985.

Three plaintiffs, Tim Youngwirth, Kevin Novak and Oliver Watson, filed motions for pre-trial ruling on admissibility of certain evidence; namely three separate audio-videotapes depicting the debridement procedures each of the above named plaintiffs underwent while in the burn unit of East Jefferson Hospital immediately following the accident.

Following separate hearings on each video, the trial judge ruled that:

(1) the audio-videotape debridement procedure of plaintiff, Tim Youngwirth, would be admissible into evidence to the jury, subject to various editions ordered by the court;

(2) the audio-videotape debridement of Kevin Novak would be admissible into evidence to the jury, subject to various editions to be performed jointly by plaintiff’s counsel and counsel for defendants; and

(3) the audio-videotape debridement procedure of plaintiff, Oliver Watson, would be admissible into evidence to the jury.

Relator, Groth Equipment Corporation of Louisiana, has applied to this court for supervisory writs of certiorari, prohibition or mandamus alleging the trial court erred in granting plaintiffs’ pre-trial motions admitting into evidence the audio-videotapes depicting debridement procedures performed on plaintiffs. We grant the writ to decide whether or not the possible prejudicial and inflammatory effect of these audio-videotapes might have outweighed their probative value.

This exact issue was addressed in Thomas v. C.G. Tate Construction Company, Inc., 465 F.Supp. 566 (D.S.C.1979). In Thomas, supra, plaintiff sustained serious burns on April 6,1978, and sought to admit an audio-videotape, essentially depicting a debridement session, produced five weeks later.

The Thomas court recognized that the tape depicted less than one half hour of a recuperative period which required many months, and noted that the tape would have such impact that the jury would place an inordinate amount of weight on this isolated portion of the recuperation period. The court held that the tape “definitely incites extreme sympathy for the plaintiff and would inflame the average person”, 465 F.Supp. at 569; and in balancing the probative value of the tape with the prejudicial effect it would have on the jury, noted the following at page 571:

The novelty of using a videotape in the courtroom in and of itself may make the tape stand out in the minds of the jury. Unquestionably, it will dominate the evi-dentiary scene. This court is greatly concerned that its dominating effect will distract the jury from its proper consideration of other issues they will be called on to decide. The court can conceive of no way in which the defendant can possibly depict with equal impact those periods of time during the plaintiff’s recovery process when he was either free of pain or relatively speaking, free of pain. Defendant has never had the opportunity of preserving such periods and being able to present them in such a dramatic way. In this court’s judgment, no amount of testimony from the attending physician, nurses, etc., could possibly offset the dramatic effect of the audio-videotape in question.
This court, weighing the probative value against the prejudicial probability, on balance, finds that the probative value is substantially outweighed and overshadowed by the danger of unfair prejudice and rules that the film must not be allowed in evidence. The court is mindful, in making this ruling, that not only will the plaintiff be available to testify, but the doctor, the wife, and the therapist. There is nothing to keep them from testifying as to the pain and suffering which they witnessed, or which they believe to be true because of the subjective symptoms emanating from the plaintiff himself. It is, of course, admissible.

Respondents cited the trial court in Reggio v. Louisiana Gas Service Service Company, 333 So.2d 395 (La.App. 4th Cir. 1976), writ denied, 337 So.2d 187, as supporting authority for their position. However, the Reggio case is distinguishable from the instant case. In Reggio, supra, the audio-videotape admitted into evidence did not depict a plaintiff immediately after his accident when his condition was most severe. Rather, it was admitted only to depict treatment which he was currently undergoing two weeks prior to trial. To equate the audio-videotape admitted in Reg-gio, supra, with the audio-videotapes made subject of this application is not a fair comparison.

After careful review and due consideration, we must rule that the probative value of these audio-videotapes is far outweighed by their inflammatory and prejudicial nature. These audio-videotapes would, without doubt, incite extreme sympathy for these three plaintiffs and would easily inflame the average person. In reaching this conclusion, we adopt the reasons articulated by the court in Thomas, supra, as cited above, as our own. Keeping in mind, however, that the determination on the admissibility into evidence of audio-videotapes is to be done on a case-by-case basis depending upon the individual facts and circumstances of each case.

Accordingly, for the foregoing reasons, the prior rulings admitting into evidence the audio-videotapes of Tim J. Youngwirth, Kevin Novak and Oliver Watson are hereby reversed, specifically ruling such tapes inadmissible as we find their prejudicial effect outweighs their probative value. This matter is remanded for further proceedings not inconsistent with this ruling and all costs are to await the final outcome of this case.

REVERSED AND REMANDED.


author: DUFRESNE, Judge.

text:
    STATE of Louisiana ex rel. Jimmy SPRINKLE # 100426 v. N. Burl CAIN, Warden et al.
    No. 84-KH-648.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 20, 1984.

      Jimmy Sprinkle, pro se.
    Dorothy A. Pendergast, Asst. Dist. Atty., Gretna, for respondent.
    Before BOWES, GRISBAUM and DU-FRESNE, JJ.
   DUFRESNE, Judge.

Relator challenges the ruling of the Twenty-Fourth Judicial District Court regarding his application for post-conviction relief and assigns five (5) errors for review by this court.

1. It was error for the trial court, at the evidentiary hearing to rely on the Court of Appeal judgment regarding whether the evidence was sufficient to justify a conviction for simple burglary.

2. The trial court erred when it failed to render a decision on relator’s claim that he was denied his Sixth Amendment right to confront and cross-examine his accusers.

3. The trial court committed reversible error in denying relator’s allegation that the trial court abused its discretion in denying defense counsel’s motion to have the jury view the stairs at the scene of the alleged burglary.

4. The Twenty-Fourth Judicial District Court committed reversible error when it denied relator’s claim that the prosecutor was guilty of misconduct at the summation and rebuttal stages of the proceedings.

5. It was error for the trial judge, at the evidentiary hearing, to consolidate for review relator’s claim of incompetent trial and appellate counsel and the challenge to the sufficiency of the evidence. The assignment also challenges the adequacy of the evidentiary hearing and counsel appointed to represent him at the proceeding.

We have examined the record in light of the relator’s claims and find no error in the denial by the trial court of relator’s application for post-conviction relief.

While the opinion of this Court does not reflect that the sufficiency of the evidence was a question presented for appellate review, in light of State v. Raymo, 419 So.2d 858 (La.1982) each record is examined for evidentiary sufficiency and we are not persuaded by the relator’s argument that the evidence in this case was insufficient to support his conviction for simple burglary. Although he contends that his conviction was based solely on the presumption denounced in State v. Searle, 339 So.2d 1194 (La.1976), the facts presented at trial demonstrate otherwise. See factual narration, State v. Sprinkle 439 So.2d 1230 (Ct.App. 5th Cir.1983).

Nor do arguments two (2) and three (3) merit significant attention. We note that at trial the investigating officer testified that the owner of the car viewed at the scene of the burglary placed Sprinkle in possession of the car at the time of the offense, but the thrust of the testimony was to explain the subsequent steps of the officer’s investigation. As it was the recital of the car’s owner that caused him to present a photo display to the witness and victim which resulted in Sprinkles identification and apprehension, it appears clear that the testimony was not offered for the truth of the matter asserted so as to be impermissible hearsay. See State v. Watson, 449 So.2d 1321 (La.1984). Conceding that defense counsel at trial stated “I don’t know what these stairways actually look like” and at the evidentiary hearing apparently testified to the contrary, it does not appear that the denial of the defense counsel’s motion to have the jury view the scene of the offense constituted an abuse of discretion. We note that a drawing of the stairwell was exhibited to the jury during the testimony of Mr. Hebert in order to explain the various levels of the stairwells in the victim’s apartment complex and agree with the estimation of the trial court and defense counsel that the denial of the motion to view the scene of the offense did not prejudice the defense case.

We also decline to reconsider the portion of our opinion regarding the alleged misconduct of the prosecution during closing argument based upon the information presented by the relator in the present writ application. See C.Cr.P. art. 930.4.

The remaining issues are addressed to the adequacy of counsel appointed to represent the relator at trial, on appeal, and at the recently conducted evidentiary hearing.

The test for evaluating the competence of trial counsel was most recently articulated by the United States Supreme Court in Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 2054, 80 L.Ed.2d 674 (1984). The court held:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

In evaluating the performance of counsel, the “inquiry must be whether counsel’s assistance was reasonable considering all of the circumstances.” Supra at 2065.

In making the determination of whether the specified errors resulted in an unreliable verdict, the inquiry must be directed to whether “there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, supra at 104 S.Ct. 2068. See also State v. Dill, 461 So.2d 1130 (La.App. 5th Cir.1984). After examination of the trial record, we conclude that the conduct of trial counsel was far from deficient and the defendant was given a fair trial resulting in a reliable verdict.

Because the appellate brief presented for review the most serious issues arising during the trial proceedings, we cannot fault appellate counsel for failing to designate as error every objection lodged in the trial court. As we observed in State v. Foley, 448 So.2d 731, 733 (La.App. 5th Cir.1984):

The function of the court-appointed counsel is not to create rights for an accused; but, rather, to advocate the facts favorable to a defendant’s opposition and to assert and/or protect those rights granted to the accused by our constitutions and statutory law. [and further] As designated by its name “brief”, the document filed by counsel is intended to be a precise and to the point recitation of his client’s position under the applicable facts and circumstances of the case. Its purpose is not to raise irrelevant issues and law. Here counsel has urged error in those areas containing some factual discrepancies from which a legal argument supporting a contention of error could be made. Although we do not agree a reversible error was committed, we nevertheless believe defendant’s counsel briefed the relevant issues while avoiding superfluous recitations of irrelevant issues and law.

We conclude likewise in this case and find the relator’s appellate counsel adequately represented him on appeal.

Relator also challenges the representation of counsel appointed to him at the evidentiary hearing granted as a result of his writ application filed in the Twenty-Fourth Judicial District Court and the sufficiency of that hearing. He urges that counsel had a conflict of interest, as he was then representing the co-participant in the burglary for which the relator was convicted and he asserts the evidentiary hearing was not a complete fact finding hearing as required in Federal Courts. Because these issues have not been presented to the district court for consideration and since we have only supervisory jurisdiction in such matters, we decline to consider them at this time.


author: GAUDIN, Judge.

text:
    STATE of Louisiana v. Michael WASHINGTON.
    No. 83-KA-768.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 20, 1984.
    Cornelius E. Regan, Asst. Dist. Atty., Gretna, for plaintiff-appellee.
    Martha E. Sassone, Staff Appeals Counsel, Indigent Defender Bd., Gretna, for defendant-appellant.
    Before GAUDIN, GRISBAUM and MARCEL, JJ.
   GAUDIN, Judge.

Michael Washington was convicted of armed robbery by a 12-person jury in the 24th Judicial District Court and sentenced to five years at hard labor, the statutory minimum.

On appeal, he assigns two district court errors:

(1) The trial judge erred in not giving Washington a continuance, and

(2) The trial judge erred in not granting defendant’s motion for a new trial.

Finding no error, we affirm Washington’s conviction.

BACKGROUND

On April 15, 1982, at 7 p.m., Charles Carson was leaving a restaurant when he was approached by a black male armed with a pistol. The armed man, who was wearing a red shirt and blue jeans, demanded money, and Carson handed over $450.00. The armed man then fled.

Approximately five minutes later, police officers saw Washington, wearing a red shirt and blue jeans, sitting on a porch a block and a half from the restaurant. Washington was immediately returned to the crime scene, where Carson made a positive identification of Washington as the armed man who had just robbed him.

Carson stated:
“... I was no more than a foot away from him.
“I seen him. I seen the gun that he had and then I looked at his face and he was there with me at least two minutes, and then he said, ‘Give me the money or I’m going to kill you.’ ”

Carson was asked about the lighting in the parking lot, and he replied: “It was very well lit.”

During the trial, Carson again identified Washington. The prosecuting attorney asked: “Mr. Carson, is there any doubt in your mind that that’s the person that committed the crime?” The response was: “No, sir.”

ASSIGNMENT NO. 1

On July 30, 1982, Washington was arraigned and pleaded not guilty to LSA-R.S. 14:64, armed robbery. Before his trial eventually started on March 15, 1983, the case was scheduled but continued 10 times, six and possibly seven times at Washington’s request. The 9-30-82 minute entry postponing the trial from that day to 11-8-82 does not show whether the State or Washington asked for that delay.

After the jury had been selected on March 15, 1983 and just before the Bill of Information was read to the jury, defense counsel orally moved for a continuance, stating:

“... on behalf of the defendant, I’m going to request permission to make a verbal motion for a continuance on grounds that we have issued numerous subpoenas for Ricky Ward who is an essential witness ...
“The defendant and I at around noon yesterday went to the same address and talked to a cousin of his named Walter, who stated he was still living there and that he had just left a few minutes before to go someplace in the neighborhood.
“We went through the entire neighborhood trying to locate him and were unable to find him ...”

The motion was denied, the trial judge noting that the case “... had been continued on a number of occasions for the very purpose of bringing forward one Ricky Ward.”

Apparently, Ward was residing at 2123 LaSalle Street in New Orleans, the address specified in defendant’s subpoenas, but he (Ward) was, as the trial judge said, “ducking service.”

The defense at no time asked the court to invoke the provisions of the material witness statute, LSA-R.S. 15:257, which reads:

“Whenever it shall appear, upon motion of the district attorney or upon motion of a defendant supported by his affidavit, that the testimony of any witness is essential to the prosecution or the defense, as the case may be, and that there are good grounds to fear that said witness may depart or be taken from the jurisdiction of the court, a judge ... shall issue a warrant for the arrest of the witness. The witness shall be arrested and held in the parish jail ...”

The granting of continuances is within the trial judge’s discretion and will not be disturbed on appeal absent an arbitrary or unreasonable refusal. See LSA-C. Cr.P. art. 712 and the Official Revision Comment thereunder, and also State v. Gordy, 380 So.2d 1347 (La.1980); and State v. Washington, 407 So.2d 1138 (La.1981).

Inasmuch as (1) the instant case had been continued more than once because Ward had not been served and (2) the defense had not asked for Ward’s attachment as a material witness, the trial judge’s refusal to grant another continuance was neither arbitrary nor unreasonable.

We note that the record does not contain a written motion for a continuance as required by LSA-C.Cr.P. art. 707, which normally precludes consideration by an appellate court. State v. Jones, 340 So.2d 563 (La.1976).

There are exceptions to this requirement, as in State v. Parsley, 369 So.2d 1292 (La.1979), and State v. Washington, supra, where the occurrences that assertedly made the continuance necessary arose unexpectedly, leaving defense counsel with no opportunity to prepare a formal motion. Here, however, the defense knew at least one day in advance of trial that Ward would again be unavailable. A written motion should have been prepared and placed in the record.

ASSIGNMENT NO. 2

Washington’s motion for a new trial contended that the trial judge committed prejudicial error in not allowing the defendant and several other witnesses to testify about admissions of guilt made by the missing witness, Ward. Allegedly, Ward said that he and not Washington had committed the armed robbery. The trial judge ruled that this testimony was hearsay and it was excluded.

Appellant argues that Ward’s alleged statements were declarations against his own penal interest and were therefore exceptions to the general rule prohibiting hearsay testimony.

Louisiana jurisprudence does recognize this exception, but an essential element is that the declarant be unavailable. See State v. Gilmore, 332 So.2d 789 (La.1976), in which the Supreme Court of Louisiana discussed this issue at length and said that the missing declarant should be “... deceased or insane or fled from the jurisdiction and therefore quite unavailable ...”

As Ward was still living at a known address in New Orleans and not so unavailable as to qualify under Gilmore, any admissions by him were hearsay.

As neither assignment of error has substance, we affirm Washington’s conviction.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Kevin S. CAWLEY v. UNITED PARCEL SERVICE, INC. and Liberty Mutual Insurance Company.
    No. 84-C-596.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 8, 1985.
    Keristine H. White, Metairie, for defendants-appellants United Parcel Service, Inc. and Liberty Mut. Ins. Co.
    ■ Donna R. Moliere, New Orleans, for plaintiff-appellee Kevin S. Cawley.
    Before BOUTALL, CHEHARDY and KLIEBERT, JJ.
   BOUTALL, Judge.

We granted certiorari to determine the validity of a judgment overruling an exception of prematurity.

Plaintiff Kevin S. Cawley filed a petition for worker’s compensation on August 6, 1984 alleging injuries as a result of an accident on October 31, 1983. The defendant filed an exception of prematurity based upon failure to first submit the claim to the office of Worker’s Compensation Administration created by Act No. 1 of the first extra session of 1983, effective July 1, 1983. (R.S. 23:1291 et seq.) Specifically, exceptor points out that the claimant does not follow the requirements of R.S. 23:1314 in that it is not alleged in the petition that the claim was submitted to the office for informal resolution and that the attempt failed, nor is the petition accompanied by a copy of the certificate of office. The ex-ceptor denied that any such resolution has been made prior to the suit being filed and asserts that the petition is accordingly premature and should be dismissed.

The trial judge overruled the exception of prematurity, but required petitioner to amend the petition within thirty days. While such a resolution of the exception may be equitable, it is not provided for in this statute. This statute requires dismissal and we so order.

Accordingly, the judgment complained of is reversed and there is now judgment in favor of exceptors and against petitioner, Kevin S. Cawley, maintaining the exception of prematurity and dismissing his petition at his cost.

REVERSED AND RENDERED.

      . "1314. Necessary allegations; dismissal of premature petition
      A.The presentation and filing of the petition under R.S. 23:1311 shall be premature unless it is alleged in the petition that the claim for compensation has been submitted to the office for informal resolution and that such attempt to informally resolve the claim has failed and:
      (1) The employee or dependent is not being or has not been paid, and the employer has refused to pay, the maximum percentage of wages to which petitioner is entitled under this Chapter; or
      (2) The employee has not been furnished the proper medical attention; or
      (3)The employee has not been furnished copies of the reports of examination made by the employer’s medical practitioners after written request therefor has been made under this Chapter.
      B. The petition shall be dismissed when the allegations in Subsection (A) of this Section are denied by the employer and are shown at a time fixed by the court to be without reasonable cause or foundation in fact or the petition is not accompanied by a copy of the certificate of the office as required by R.S. 23:1310.1.
      C. The court shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with this claim.”


text:
    Willard GRAY v. Margaret Frances Collom, Wife of Willard GRAY.
    No. 84-CA-167.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Rehearing Denied Feb. 20, 1985.

      Jacques F. Bezou, Russell A. Solomon, New Orleans, for plaintiff-appellant.
    Dunn & Rasch, Ltd., J. Morris “Jack” Dunn, III, Metairie, for defendant-appellee.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

The issue on this appeal is the interpretation of “the date on which the original petition in the action was filed” as provided in La.C.C. art. 159, and its application to the dissolution of the community property regime in this case.

On June 6, 1980, Willard Gray filed a “Petition for Divorce” against his wife Mildred Frances Collum on the ground of adultery. The petition also contains allegations of cruel treatment such as to render living together insupportable. However the prayer does not mention either divorce or separation. His wife answered and reconvened for a separation on the grounds of abandonment and cruel treatment.

On June 5, 1981 the husband filed a “Supplemental and Amended Petition for Divorce” on the ground of having lived separate and apart for a period of more than one year. A judgment of divorce as well as ancillary matters was apparently agreed upon that day but the judge set the divorce aside because no evidence was taken. By agreement of the parties on June 12, 1981, the supplemental petition was tried on the merits, and judgment was rendered in favor of the husband awarding him an absolute divorce, based on living separate and apart for more than a year.

On August 25,1981 a petition to partition the community property by licitation was filed. The family home was sold and an inventory of other community assets and debts was filed. A dispute then arose as to the effective date of the termination of the community.

In 1977 the Louisiana Legislature amended LSA-C.C. arts. 155 and 159 to provide that dissolution of the community by a judgment of separation or divorce is retroactive to the filing of the original petition. C.C. art. 159 now provides in pertinent part:

“If a community property regime exists on the date of filing of the original petition in the action in which the judgment of divorce is rendered, the judgment of divorce carries with it the dissolution of the community, which dissolution is retroactive to the date on which the original petition in the action was filed, but such retroactive effect shall be without prejudice (a) to the liability of the community for the attorney fees and costs incurred by a spouse in the action in which the judgment is rendered, or (b) to rights validly acquired in the interim between commencement of the action and recordation of the judgment.

Appellant Gray contends that the “original petition” is the first petition he filed in the divorce action, thus the community terminated on June 6, 1980. Appellee wife contends that dissolution occurs because of the judgment of divorce and that the “original petition” is the one which first sets out the cause of action or ground upon which the judgment is based. Thus, the community terminated on June 5, 1981.

The wife relies on the case of Morice v. Morice, 419 So.2d 1003 (La.App. 4 Cir. 1982). In Morice plaintiff filed a petition for separation on the ground of mental cruelty, which was abandoned when the original petition was amended praying for a divorce on the ground of separation in excess of one year. The Morice decision was based upon LSA-C.C.P. art. 1153, which provides:

“When the action or defense asserted in the amended petition or answer arises out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back- to the date of filing the original pleading.”

The Morice court held that where the supplemental and amended petition was separate and distinct from the cause of action asserted in the original petition, the effective date of the termination of the community was the date of filing the later petition, rather than the date of the earlier filed petition which had been abandoned. See also Pepe v. Drouant, 311 So.2d 582 (La.App. 1st Cir.1975), which was decided before the 1977 amendment of Article 159.

The Morice case does not discuss C.C. art. 159 although the amendment was in effect for several years. We can perceive a difference between the purposes of these two codal articles and Article 1153 is not necessarily controlling of Article 159. Nevertheless a compatible interpretation and application of them is a reasonable premise.

Because of the particular facts in the instant case we conclude the same result would be reached here under Article 159. This is so because the judgment awarding Mr. Gray the divorce clearly states it was based upon “plaintiffs supplemental and amended petition [which] came for hearing this ... day.” It is the judgment of divorce which triggers the dissolution of community. It seems reasonable that the legislature intended the original petition setting out that action upon which the judgment is based as the controlling factor. Otherwise dissolution could be controlled by filing a petition on non-existent or specious grounds.

Since plaintiff abandoned his divorce petition based on adultery and went to trial on his supplemental and amended petition based on 1 year separation, the trial court was correct in concluding that the supplemental petition was a different cause of action and that the dissolution of the community property regime became effective retroactive to the filing of that petition on June 5, 1981.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Thomas J. SMITH.
    No. 84-KA-427.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      John M. Mamoulides, Dist. Atty., Twenty-Fourth Judicial Dist., Parish of Jefferson, Eric Honig, Dorothy A. Pendergast, Louise Korns, Asst. Dist. Attys., of counsel, Gretna, for appellee.
    John H. Craft, Staff Appellate Counsel, Twenty-Fourth Judicial Dist., Indigent Defender Bd., Gretna, for appellant.
    Before BOUTALL, GRISBAUM and DU-FRESNE, JJ.
   BOUTALL, Judge.

Thomas J. Smith, a young man in his early twenties, was charged in a bill of information with simple burglary of an inhabited dwelling place in violation of LSA-R.S. 14:62.2. The jury returned a verdict of attempted burglary, and Smith was given the maximum sentence of six years at hard labor without benefit of parole, probation or suspension of sentence.

The record reflects the following facts:

On August 25, 1983, Smith had visited Robert Rideau at his mobile home on 207 Filmore Street, Kenner, Louisiana. Smith had done odd jobs for Rideau, and at one time lived next door. He inquired about Rideau’s plans for the day and was told Rideau planned to go to work with his taxicab.

That evening at about 10 p.m., Sharon Aubert, who lives in a trailer in the mobile home park directly across the street from Rideau, saw Smith arrive on a bicycle and walk around the Rideau trailer. She asked her husband Robert if she should call the police, and he came to the window while she left the room to take care of her baby in another room. They recognized Smith because he had worked around the place.

At first Robert told her not to call the police because Smith was doing nothing but walking around. However, as Robert continued to watch, he saw Smith pull a barrel under a window, break the glass and climb in.

While this was in progress Aubert called his wife, who came into the room in time to see the body halfway into the trailer. About a minute or so later the Auberts heard Rideau’s burglar alarm go off. Smith jumped back out of the broken window, rolled on the ground, ran to his bike and pedaled out of the park. In the meantime Sharon Aubert had gone to call the police after her husband had seen Smith breaking the window.

When Rideau returned to the trailer he phoned the police, who had left a note on his door advising him of a suspected burglary. He found nothing missing in the trailer and except for the broken window, nothing was amiss.

Rideau had been burglarized several times previously and had a burglar alarm installed on all of the windows and doors, and a backup system with trip pads under the rug. It is significant that the window smashed on the night of the present offense was inoperative because of water damage. This was known to Smith, but he was unaware of the backup system under the rug.

Smith was positively identified by the Auberts as the man they had seen that evening, and whom they knew previously.

Appellant cited five assignments of error, but urges only one on this appeal: that the evidence presented by the State was insufficient to justify a guilty verdict of attempted burglary of an inhabited dwelling.

R.S. 14:62.2 defines simple burglary of an inhabited dwelling as follows:

“[T]he unauthorized entry of any inhabited dwelling, house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein .... ”

It is clear from the .statute that an essential element of the crime is that the offender must have specific intent to commit a felony or a theft in the structure entered.

LSA-R.S. 14:27(A) defines attempt as:

“Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.”

The constitutional standard for testing the sufficiency of evidence is enunciated in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). It requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime charged beyond a reasonable doubt.

When circumstantial evidence is used to prove the commission of the offense, LSA-R.S. 15:438 mandates that:

“The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence.”

Ultimately all evidence, both direct and circumstantial, must be sufficient under Jackson to satisfy a rational trier of fact that the defendant is guilty beyond a reasonable doubt.

To uphold Smith's conviction the reviewing court must find that each of the following elements were proven beyond reasonable doubt:

1. an unauthorized entry was attempted or made,
2. into an inhabited dwelling,
3. by the defendant,
4. with the specific intent to commit a felony or theft therein.

It is appellant’s position that the State has failed to prove the element of specific intent, and consequently defendant should not have been found guilty.

LSA-R.S. 14:10(1) defines specific intent as “that state of mind which exists when the circumstances indicate the offender actively desired the prescribed criminal consequences to follow his act or failure to act.”

The question of intent may be inferred from the circumstances of the transactions surrounding the commission of the crime. See State v. Dickerson, 353 So.2d 262 (La.1977); State v. Coleman, 450 So.2d 1063 (La.App. 1st Cir.1984).

We are cited to the case of State v. Ricks, 428 So.2d 794 (La.1983). In Ricks, the Supreme Court found that evidence of an attempt to enter a house was not sufficient to justify a conviction for attempted burglary absent proof of defendant’s specific intent to commit a felony or theft.

The factual situation in Ricks is diametrically opposed to the facts in the instant case. In Ricks the defendant was paying a social call on a girl he knew. He tugged on the screen door to get her attention and a man staying with the girl heard the noise, grabbed a gun and yelled out of a secured door telling defendant to leave. When the intoxicated defendant did not respond, he was shot in the leg.

The trier of fact concluded it was a reasonable hypothesis that the defendant merely intended a social visit and that no specific intent was proven by the State.

In the instant case defendant knew that Mr. Rideau would be working that evening, he knew the burglar alarm was ineffective on the window where he entered. He was seen moving a barrel to gain entry, breaking a window and actually entering the premises, and exiting hastily when he tripped the alarm under the rug.

We liken the factual situation here to the case of State v. Pierce, 450 So.2d 730 (La.App. 5th Cir.1984). In a somewhat similar situation we stated it was “difficult to imagine any hypothesis that does not include the specific intent to commit a felony or a theft therein at the time the appellant made his unauthorized entry.” That finding is also appropriate in the instant case.

The following cases illustrate cases where specific intent was found necessary for a burglary conviction, although nothing was taken: State v. Pike, 426 So.2d 1329 (La.1983); State v. Fuller, 418 So.2d 591 (La.1982); State v. Lawson, 446 So.2d 494 (La.App. 4th Cir.1984); State v. Robinson, 442 So.2d 827 (La.App. 4th Cir.1983).

Defense counsel claims Smith could have broken into the trailer to get his work clothes and personal belongings which he sometimes kept in Rideau’s trailer, or that he was so intoxicated he could not have had the capacity to form the specific intent.

The evidence of intoxication and fact that defendant sometimes kept work clothes at the trailer were circumstances considered by the jury, along with other facts of the case in determining if Smith had the necessary specific intent.

The jury in returning a verdict of guilty of attempted simple burglary indicated a belief that the State had proved all of the necessary elements of the crime.

On appeal the function of the reviewing court is not to reassess the credibility determinations of the fact finder, but only to determine if the evidence offered was sufficient to support the conviction. State v. Richardson, 425 So.2d 1228 (La.1983); State v. Lee, 445 So.2d 54 (La.App. 4th Cir.1984); State v. Jacobs, 435 So.2d 1014 (La.App. 1st Cir.1983). We conclude the evidence offered was sufficient to support the conviction.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Kenneth GRANGER.
    No. 84-KA-428.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    John H. Craft, Staff Appellate Counsel, 24th Judicial Dist., Indigent Defender Bd., Gretna, for defendant-appellant Kenneth Granger.
    William C. Credo, III, Asst. Dist. Atty., Research and Appeals, Gretna, for plaintiff-appellee State.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   BOUTALL, Judge.

Kenneth Granger was charged by bill of information with two counts of attempted second degree murder, one count of aggravated arson and one count of aggravated burglary. Following trial, the jury returned a verdict of guilty as charged to all four counts. Granger was sentenced to 50 years, 25 years, 15 years, and 10 years on each respective count, to be served consecutively.

While this appeal was pending, Granger died. The prosecution in this proceeding is therefore abated. State v. DeHart, 445 So.2d 419 (La.1984), State v. Clayton, 427 So.2d 827 (La.1982), State v. Broadnax, 421 So.2d 238 (La.1982), and State v. Morns, 328 So.2d 65 (1976).

Accordingly, in accordance with State v. Morris, the appeal in this case is dismissed, the judgment of conviction is vacated, and the case is remanded to the district court with instructions to dismiss the indictment.

PROSECUTION ABATED, APPEAL DISMISSED.


author: CHEHARDY, Judge.

text:
    Herbert E. MILLS v. SENTRY INSURANCE COMPANY.
    No. 84-CA-171.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.
    Writ Denied March 15, 1985.
    Richard J. Boutall, Metairie, for plaintiff-appellant.
    Joseph R. McMahon, Jr., New Orleans, for defendant-appellee.
    Before CHEHARDY, CURRAULT and DUFRESNE, JJ.
   CHEHARDY, Judge.

Herbert E. Mills instituted this suit for personal injuries allegedly sustained in a slip-and-fall accident at Earl’s I — 10 Shell Service Station,' 6600 Veterans Highway, Metairie, Louisiana. The suit was a direct action against Earl’s insurer, Sentry Insurance A Mutual Company (incorrectly referred to as Sentry Insurance Company). Following trial on the merits, judgment was rendered dismissing plaintiffs demand at his cost. Plaintiff has appealed.

Plaintiff was the only witness to testify about the occurrence of the accident; although one of his sons was present, he did not see the father slip or fall.

Plaintiffs version of the incident is as follows:

Mr. Mills had taken his automobile to the service station for repairs on the morning of February 20, 1981. Late that afternoon after work plaintiffs son Stephen drove his father to the station in his truck to pick up the automobile.

The automobile was parked at the service station facing Veterans Highway next to a sidewalk adjacent to the rest room. Stephen parked the truck next to his father’s automobile, facing in the opposite direction (i.e. toward Airline Highway.)

Mills got out of the truck and went to look under the hood of the car to check on the repairs and then went into the men’s room to wash his hands.

When Mills came out of the rest room he claims to have tripped on a piece of rusty metal protruding ⅜ inches above the sidewalk between the sidewalk and the curb. His automobile broke the fall, but he went down hard on his hand and right knee. He got up quickly and brushed himself off. He did not report the accident to anyone at the service station or mention it to his son at that time.

Stephen testified that he saw his father go in and out of the rest room but did not see him trip or fall. He did not recall seeing his father look under the hood of the car. He did notice his father brushing off his pants after he came out of the rest room and asked if he was all right, but his father waved him off and the son drove away in the truck. When he saw his father two days later the leg was swollen and bruised, and the father told him about the fall.

The incident occurred on a Friday afternoon and on the following Monday plaintiff went to the Emergency Room at Ochsner Foundation Hospital where he was seen by Dr. Charles Johnson. He was treated as an outpatient by Dr. Johnson on March 3, 7,16, 31 and August 28,1981. Dr. Johnson was not called as a witness.

Plaintiff was examined by Dr. G. Gernon Brown at the request of defendant on November 4, 1981. Dr. Brown found possible internal derangement of the knee, evidence of an old fracture of the right tibia and tear of the medial meniscus. The doctor recommended an arthroscopic examination and possible excision of the torn medial meniscus. Plaintiff was seen on eight occasions by Dr. Brown, and treated with anti-inflammatory drugs and an elastic support.

Dr. Brown was unable to state whether plaintiff’s knee problems resulted from the injury in suit or from an earlier injury when plaintiff broke his leg in 1967. He considered the prognosis good, even though plaintiff declined the arthroscopic examination and operation.

Earl Larrieu, who leases the station from Shell, testified plaintiff never told him about any accident until the following week. He and plaintiff then examined the area where the incident occurred and could find nothing. He had Shell inspect the area and they made no repairs to the curb or sidewalk because there was nothing to repair.

In reasons for judgment the trial court stated it found strong evidence as to the nature of the injury, but the testimony did not convince the court that plaintiff’s version was true and correct. It did not show it was “more likely than not that plaintiff was injured at defendant’s service station.”

We agree with that conclusion.

We note that defendant denied having prior problems with his right knee both during a deposition and at the time of trial. However, in another law suit filed by him in 1975 he acknowledged that he had suffered an injury to his right knee at that time.

The case was reopened at the request of both parties to introduce new evidence. Plaintiff wanted to show that Mr. Larrieu, who had denied he was a personal friend of plaintiffs, had frequently cashed checks in substantial sums for plaintiff, and defendant wanted to introduce evidence of prior injury to plaintiff’s knee.

At that time defendant introduced a certified copy of the records of East Jefferson Hospital which clearly established that plaintiff suffered an injury to his right knee on April 12, 1975, the subject of the prior law suit.

Plaintiff must prove by a preponderance of the evidence that it is more probable than not that the harm complained of was caused by defendant. Napoli v. State Farm Mut. Auto. Ins. Co., 387 So.2d 1351 (La.App. 1st Cir.1980), affirmed 395 So.2d 720 (La.1981).

Failure to call a treating physician creates a presumption that his testimony would have been unfavorable. Liner v. Patrick, 421 So.2d 391 (La.App. 1st Cir. 1982); Vidrine v. Sentry Indemnity Co., 341 So.2d 558 (La.App. 3d Cir.1976), writ refused, 343 So.2d 202 (La.1977); Bailey v. St. Paul Fire & Marine Insurance Company, 268 So.2d 697 (La.App. 1st Cir.1972).

Of course this is a rebuttable presumption, but we do not agree that plaintiffs failure to call Dr. Johnson would have merely been cumulative evidence, as suggested by plaintiff. He was seen on six occasions by this doctor prior to his examination and treatment by defendant's doctor. We regard Dr. Johnson’s testimony as to whether or not the knee problem was caused by this accident vital to plaintiff’s claim.

This is particularly true in view of plaintiff’s prior injuries in 1967 and 1975, and the fact that Dr. Brown could not state with certainty that plaintiff’s present knee problems are related to this incident.

As stated in the landmark case of Canter v. Koehring Company, 283 So.2d 716, 724 (La.1973): “When there is evidence before the trier of fact which, upon its reasonable evaluation of credibility, furnishes a reasonable factual basis for the trial court's finding, on review the appellate court should not disturb this factual finding in the absence of manifest error.” See also Sosa v. New Orleans Public Service Inc., 454 So.2d 1124 (La.App. 4th Cir. 1984).

We find no manifest error here.

For the reasons assigned the judgment appealed from is affirmed.

AFFIRMED.

      . Shell Oil Company was named an additional defendant by supplemental and amended petition, but was never served.


author: KLIEBERT, Judge.

text:
    Peter W. SCHWEHM, Jr. v. SUPERIOR PONTIAC COMPANY and General Motors Corporation.
    No. 84-CA-218.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 14, 1985.

      Gerald R. Cooper, New Orleans, for plaintiff-appellant Peter W. Schwehm, Jr.
    David L. Campbell, Deutseh, Kerrigan & Stiles, New Orleans, George T. Mustakas, II, Porteous & Mustakas, Metairie, for defendant-appellee General Motors Corp.
    Before BOUTALL, KLIEBERT and BOWES, JJ.
   KLIEBERT, Judge.

This is a suit in quanti minoris, i.e., reduction of the purchase price or reimbursement of expenses incurred in repairing an alleged latent defect. The plaintiff-purchaser, Peter Schwehm, Jr., purchased a 1980 Lemans, manufactured by General Motors, defendant, from Superior Pontiac, a dealer, on June 28,1980 for $7,123.20. In October 1982 the automobile developed transmission problems. Schwehm’s petition alleges the transmission problem was caused by an improperly installed bolt which cracked the casing. He alleges the manufacturer knew of the defect and he could not have discovered the defect by mere inspection. When the dealer and the manufacturer refused to repair the vehicle, Schwehm filed this suit on July 14, 1983.

Both defendants filed peremptory exceptions of prescription. The exceptions were grounded in the contention more than one year had run since the close of the sale; hence, under Civil Code Article 2534, prescription had run. Schwehm conceded his claim against the dealer had prescribed, but argued his claim against the manufacturer had not because under Civil Code Article 2546 a suit in quanti minoris against a manufacturer may be brought within one year of the date of discovery of a hidden defect. Nevertheless, the trial judge maintained the exceptions of prescription as to both the dealer and the manufacturer. We agree with the plaintiff and hence reverse the trial court’s ruling as to the manufacturer.

Whether the suit is considered an action in redhibition or an action in quanti minoris is immaterial. The first paragraph of Civil Code Article 2534 provides a one year prescriptive period for an action in redhibition, but, the second paragraph of the article provides: “This limitation [one year prescription] does not apply where the seller had knowledge of the vice and neglected to declare it to the purchaser.” We also note that under Civil Code Article 2544 the same rules apply to an action in quanti minoris as to an action in redhibition.

The plaintiff contends the action against General Motors, as the manufacturer, is governed by Louisiana Civil Code Articles 2545 and 2546 which provide as follows:

Art. 2545. Liability of seller for concealment of vice
Art. 2545. The seller, who knows the vice of the thing he sells and omits to declare it, besides the restitution of the price and repayment of the expenses, is answerable to the buyer in damages. Art. 2546. Prescription of redhibitory action when seller in bad faith
Art. 2546. In this case, the action for redhibition may be commenced at any time, provided a year has not elapsed since the discovery of the vice.
This discovery is not to be presumed; it must be proved by the seller.

Under these articles, Louisiana courts have formulated a jurisprudential rule that the manufacturer of a product is presumed to have knowledge of the defect. George v. Shreveport Cotton Oil Co., 114 La. 498, 38 So. 432 (1905); Moreno’s Inc. v. Lake Charles Catholic High Schools, Inc., 315 So.2d 660 (La.1975); Harris v. Bardwell, 373 So.2d 777 (2nd Cir.1979); Vance v. Emerson, 420 So.2d 1032 (5th Cir.1982). Thus, where a manufacturer fails to declare the vice to the buyer and the buyer could not have discovered the vice by ordinary inspection, the prescriptive period for an action in redhibition or in quanti minoris is that provided by Civil Code Article 2534, i.e., one year from the date of discovery of the vice.

Appellee argues on appeal that the jurisprudential presumption of knowledge by the manufacturer is a legal fiction contrary to our civil tradition. We do not appreciate the significance of this historical interpretation of the Civil Code nor do we believe that we can stray from this well established rule. The established facts are the plaintiff discovered the defect in October of 1982 and filed suit against the manufacturer in July 1983. Under these facts, the present statutory provisions and the interpretation of same by the courts of Louisiana, plaintiff’s claim was timely asserted within one year of discovery of the defect.

Accordingly, the ruling of the trial judge as to the defendant manufacturer is reversed and set aside and the case remanded for trial on the merits. All costs of the appeal are to be borne by General Motors.

REVERSED, SET ASIDE AND REMANDED.