author: LABORDE, Judge. PER CURIAM.

text:
    RICKEY TRI-KEY PARTNERSHIP, Plaintiff-Appellant, v. L. Ellis DUPLEIX, Etc., Defendants-Appellees.
    No. 83-1100.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied in Part; Granted in Part Jan. 15, 1985.
    On Rehearing Jan. 15, 1985.
    Writs Denied March 15, 1985.

      George J. Forest, Lafayette, for plaintiff-appellant.
    J. Nathan Stansbury, Lafayette, Thomas S. Halligan, Baton Rouge, William J. Friedman, Jr. of Voorhies & Labbe, Lafayette, for defendants-appellees.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   LABORDE, Judge.

Appellant Rickey Tri-Key Partnership contests the validity of an ad valorem property assessment by Lafayette Parish taxing authorities. After pursuing its administrative remedies, appellant filed suit in district court. The trial judge dismissed on appellees’ peremptory exception of prescription. We reverse.

FACTS AND PRIOR PROCEEDINGS

Rickey Tri-Key Partnership, Limited, appellant herein, is the owner of the Tri-Key Building in Lafayette. The building is commercial rental property. The property was appraised and assessed in 1982 by appellees Lafayette Parish Tax Assessor and Louisiana Tax Commission for ad valo-rem taxes. On January 27, 1983, appellant paid the taxes assessed under protest.

Appellant followed the statutory administrative procedure for protesting ad valorem assessments. Appellant eventually appeared before the Louisiana Tax Commission on November 16, 1982. The Tax Commission affirmed the Lafayette Parish Assessor’s appraisal and assessment on April 22,1983. Appellant contested that decision by filing its petition in district court on May 23, 1983, within thirty legal days of the decision of the Tax Commission, as required by LSA-R.S. 47:1989(D) and Tax Commission rules.

Appellees filed a peremptory exception of prescription, contending that appellant failed to bring suit in district court within thirty days of the payment of taxes under protest, as required by LSA-R.S. 47:2110(A). The district court maintained this exception.

ISSUE

Appellant explains that there are two methods for contesting ad valorem assessments in Louisiana. First, there is the administrative remedy which involves an appearance before a review board of the local authority and culminates in an appearance before the Louisiana Tax Commission, whose decision may then be contested by filing suit in the appropriate district court within thirty days. Second, there is the remedy afforded by LSA-R.S. 47:2110(A), which involves a payment of assessed taxes under protest, and a direct suit against the taxing authority filed in the appropriate district court within thirty days of the protested payment. Appellant contends that it has followed the administrative procedure, and that the trial judge erroneously based his ruling of prescription on the time period applicable to the legal remedy afforded by section 2110(A), which appellant has not pursued.

DISCUSSION

Appellant is correct in contending that there are two separate statutory schemes with separate prescriptive periods that afford remedies to assessed property owners in Louisiana. Appellee Louisiana Tax Commission admits as much and, in fact, states in its brief that, of the two statutory schemes, the administrative remedy pursued by appellant is the only constitutionally permissible remedy for one aggrieved by the actions of a parish assessor. ■ See La.Const. art. VII, sec. 18(E).

Appellant in this case followed the administrative procedure of LSA-R.S. 47:1992, which provides for complaint to a local board of review, then appeal to the Louisiana Tax Commission. LSA-R.S. 47:1998(A) expressly gives appellant the right to contest an adverse decision of the Tax Commission in district court within thirty days of that decision. See also LSA-R.S. 47:1989(D) (decision of Tax Commission is final if no suit is filed within thirty days).

Conversely, LSA-R.S. 47:2110(A) provides a direct legal action against the collecting entity with no appearances before administrative boards or agencies. The taxpayer pays under protest and then sues the collecting officer in district court. This statute has been construed to provide a thirty day prescriptive period for the filing of suit after payment under protest. See Allied Chemical Corp. v. Iberville, Etc., 414 So.2d 409, 411 (La.App. 1st Cir.1982), aff'd, 426 So.2d 1336 (La.1983). However, the same statute, in section 2110(D), clearly provides that the direct action afforded in subsection (A) is in addition to the administrative remedies afforded elsewhere in title 47. Thus, appellant properly proceeded before the administrative boards. The statutes that control the procedure before the administrative boards provide that an adverse decision may be contested in district court, and that the prescriptive period for suit in district court is thirty days after the decision of the Tax Commission. Appellant’s suit therefore has not prescribed.

Appellees argue that, by paying its taxes with checks marked “under protest,” appellant irrevocably selected the direct action under section 2110(A) with its corresponding thirty-days-after-payment peremptive period for suit in district court. This argument is without merit. By paying “under protest,” appellant preserved^ the right to proceed under section 2110(A) should it choose to do so, but payment “under protest” does not foreclose the pursuance of the administrative remedy. By marking its checks “under protest,” appellant did nothing more than provide notice to the taxing authority that it would contest the assessment under either the direct action afforded by section 2110(A) or the administrative procedure available to appellant.

Appellees’ final argument is that appellant may not maintain its suit in district court because it has failed to comply with LSA-R.S. 47:2110(E), which provides:

“Any taxpayer in the state who has paid his taxes under protest as provided in Subsection A above, and who has filed suit under the provisions of R.S. 47.T856, R.S. 47:1857, or R.S. 47:1998, shall cause to issue in said suit notice to the officer or officers designated for the collection of said taxes in the parish or parishes where the property is located, and such notice shall be sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit.”

First, we again note that appellant paid his taxes under protest. This provided notice to the taxing authority that appellant was contesting the assessment. Further, the assessor was aware during every step of appellant’s pursuance of its administrative remedy that appellant was contesting the validity of the assessment. Finally, appellant named and served the assessor as defendant in its suit after the Tax Commission decision. Appellees correctly describe the policy behind the notice provision in section 2110(E). The assessor should be informed that the taxpayer is attempting to recover all or part of the taxes paid so that the assessor will maintain the identity of the contesting taxpayer’s funds and not merge them with general revenues and allow them to be expended before the validity of the assessment is finally determined. In this case, it is obvious that the assessor had notice “sufficient to cause said officer or officers to further hold said amount segregated pending the outcome of the suit.” If the assessed funds paid under protest by appellant were merged with general revenues in the face of publicly recorded administrative and legal proceedings, then the assessment office of Lafayette Parish has only itself to blame for this error.

Appellant has properly followed the administrative procedure for contesting the assessment of ad valorem taxes in this state. After appellant exhausted its administrative remedies, it was entitled to file suit in district court within thirty legal days of the final decision of the Louisiana Tax Commission. Appellant timely filed suit. Appellant’s suit has not prescribed. We reverse the decision of the trial court and remand to that court so that appellant may further pursue the remedies granted to it under the laws of this state. Defendants-appellees are taxed with the cost of this appeal and the cost of prior proceedings in the district court.

REVERSED AND REMANDED.

ON REHEARING

PER CURIAM.

Defendant-appellee Louisiana Tax Commission has applied for a rehearing in this matter and filed a supporting brief. We grant the application for rehearing for the limited purpose of issuing this opinion. We affirm our prior decision.

The Tax Commission does not question the opinion of this court that appellant proceeded correctly by attacking the contested assessment under the administrative procedure set forth in title 47, nor does the Commission still assert that appellant failed to file suit in the appropriate district court within thirty legal days of its adverse decision, as provided by LSA-R.S. 47:1998(A). Rather, the commission contends that appellant did not fulfill the requirements of LSA-R.S. 47:2110(E), the language of which is set forth in our original opinion, and that this court erred by concluding that appellant has fulfilled the requirements of section 2110(E).

Specifically, the Commission argues that appellant did not comply with section 2110(E) because it did not give notice of its suit “to the officer or officers designated for the collection of said taxes in [Lafayette Parish].” The Commission correctly asserts that the sheriff of Lafayette Parish, not the tax assessor, is the officer to whom notice “sufficient to cause said officer ... to further hold said amount segregated pending the outcome of the suit” must be provided. The assessor sets the amount of ad valorem taxes, but the office of the sheriff collects, holds, and disburses the actual assessed funds. Our original opinion indicates that it is the responsibility of the assessor to collect, hold, and disburse ad valorem taxes and, therefore, that the assessor is the “officer” to whom notice must be provided under section 2110(E).

Although we erroneously named the assessor as the party to be notified of a suit to recover assessed taxes, we find that the considerations set forth in our original opinion as sufficient notice under section 2110(E) to the assessor apply with equal force to the sheriff. The sheriff (not the assessor) received the checks marked “under protest,” which gave notice to the sheriff that appellant was contesting the assessment, even though payment “under protest” is not required to contest ad valo-rem assessments by the administrative procedure, see LSA-R.S. 47:1992, but instead is only necessary when suit is filed in district court, either after the pursuance of administrative remedies, see LSA-R.S. 47:1998(A) & (B), or when a direct lawsuit attacking the validity of an assessment is filed in district court. See LSA-R.S. 47:2110(A). Further, the sheriff and the assessor do not operate in totally separate, insular spheres in regard to the assessment and collection of ad valorem taxes. Both the sheriff and the assessor knew that appellant was contesting the assessment. It is unclear whether the sheriff, personally or through counsel, actually appeared before the administrative boards during that phase of appellant’s pursuit of its remedy; however, the sheriff of Lafayette Parish is clearly named and was served as a defendant in appellant’s timely-filed suit in district court. A close reading of section 2110(E) reveals that notice of this district court suit is the notice required by that statutory provision. What notice exists that is more “sufficient” than being named and personally served as a defendant in a lawsuit?

The statutes do not define “sufficient” notice for the purpose of meeting the requirements of section 2110(E). As the interpretative organ of the law, therefore, this court must decide whether the actions of appellant provided notice “sufficient to cause [the sheriff] to further hold said amount segregated pending the outcome of the suit.” The Tax Commission’s application brief, in overall tenor, suggests that nothing short of a written message, hand-delivered to the sheriff once every month, stating that litigation or administrative proceedings are being undertaken to decide the validity of the assessment, would have sufficed. Neither the letter nor the spirit of the law imposes such an onerous requirement. Under the “direct action” of LSA-R.S. 47:2110(A), a contesting taxpayer must actually file suit within thirty days after payment by check marked “under protest” or some other form of notice of protest to the collecting officer. If suit is not filed within thirty days, then the collecting authority is authorized to merge the protested funds with general revenues, because suit has prescribed. There is no analogous or even similar rule of a thirty-day effective period for notice when the taxpayer pursues his remedy through the lengthier administrative process; the arguments of the Commission to the contrary should be addressed to the legislature, not the courts.

We find that the actions of appellant were sufficient to notify (and actually did notify) the sheriff that appellant was contesting its tax liability.

The Commission states that the sheriff has merged appellant’s contested funds with general revenues, and that such funds have at least lost their separate identity if they have not, in fact, been disbursed. The Commission therefore argues that this case is moot, that appellant may not recover any portion of its paid ad valorem taxes in any event. Again, we stress that if the assessed funds paid by appellant were merged with general revenues, then the collecting authority has only itself to blame for this error. Such a mistake by the collecting authority cannot preclude appellant’s recovery, if appellant prevails in its cause after further pursuance of this matter.

Our original opinion in this case is correct in its result. The reversal and remand entailed by that opinion is affirmed.


source: Caselaw Access Project

author: FORET, Judge. PER CURIAM.

license: Public Domain

text:
    STATE of Louisiana, Appellee, v. Raymond J. BOUTTE, Appellant.
    No. CR84-237.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Rehearing Denied Jan. 23, 1985.

      Richard T. Haik, Haik, Haik, Minvielle & Patout, New Iberia, for appellant.
    Bernard Boudreaux, Ralph K. Lee, Jr., Asst. Dist. Attys., New Iberia, for appellee.
    Before FORET, CUTRER and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

The defendant, Raymond Boutte, was charged by bill of information with possession of cocaine and possession of cocaine with intent to distribute, in violation of LSA-R.S. 40:967. The defendant changed his plea of not guilty to guilty on one count of possession of cocaine. The State agreed to dismiss the charge of possession with intent to distribute and recommended that a pre-sentence investigation be conducted, that the court sentence the defendant to not more than three years at hard labor, and that it may order the forfeiture of the truck used by the defendant at the time of his arrest.

The defendant was subsequently sentenced to serve three years at hard labor, and his truck was ordered forfeited to the Iberia Parish Sheriffs Department.

The defendant now appeals the sentence imposed as excessive and claims the court failed to follow proper forfeiture procedure concerning the defendant’s truck. We affirm the defendant’s sentence, but reverse the judgment insofar as it orders the forfeiture of the defendant’s truck.

On March 16, 1983, a woman was arrested by the Iberia Parish Sheriff’s Department for possession of cocaine. She told the authorities that she had obtained the cocaine from the defendant and agreed to have the defendant deliver more to her. She telephoned the defendant, who agreed to deliver the cocaine to her. The Sheriff’s Department recorded the contents of the telephone conversation and subsequently placed the defendant under surveillance. The defendant was followed from his home to the neighborhood where the woman lived, at which point he was stopped by the authorities. As the defendant got out of his truck, a packet containing 8 grams of cocaine dropped to the ground and was seized by the deputies. The defendant consented to a search of his home, where another 9 grams of cocaine were found. The defendant’s wife was present in the home, and she too was arrested.

At the hearing conducted on September 29, 1983, wherein the defendant changed his plea to guilty and was Boykinized, he admitted that the facts of the crime as presented by the State were correct. The defendant also stated that he understood that as part of his plea bargain that the court could impose any sentence up to three years at hard labor.

At the sentencing hearing conducted on December 14, 1983, the trial court acknowledged the favorable nature of the pre-sen-tence investigation report and the many letters of recommendation submitted on behalf of the defendant, but, upon consideration of the sentencing guidelines in LSA-C. Cr.P. Art. 894.1, imposed the three-year sentence.

The trial court gave a great deal of consideration to the defendant’s prior conviction for possession of marijuana, the fact that he was again arrested on drug charges so soon after his first probationary period ended, and the seriousness of the offense committed.

The trial court’s examination of the aggravating and mitigating factors was thorough and clear:

“It is well settled that the trial judge is given wide discretion in the imposition of sentences and the sentence imposed by him should not be set aside in the absence of abuse of that discretion. State v. Jones, 381 So.2d 416 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979).” State v. Bell, 438 So.2d 636 (La.App. 2 Cir.1983).

We find that the trial court’s sentencing choice is supported by the record, and there was no abuse of discretion.

The second error raised by the defendant is our learned brother’s order regarding the forfeiture of the defendant’s pickup truck. Defendant contends that the forfeiture, if ordered in lieu of a fine, is in excess of the maximum fine allowed by the statute. If the State did intend the recommendation that the truck could be forfeited to be a part of the defendant’s sentence, then we could have the imposition of an illegal sentence in this case. We are not inclined to treat the recommendation of forfeiture as part of the plea bargain, but feel instead that the State was simply apprising the defendant that the court could order the forfeiture if it chose to.

The court at all times had the power to order the forfeiture, even if the charges against the defendant had been dismissed. See LSA-R.S. 32:1550(0(4).

In light of that consideration and the fact that seizure and forfeiture of contraband are governed by an entirely separate and distinct statutory scheme contained in LSA-R.S. 32:1550 et seq., we feel that it is the better policy for the State to adhere to the proper forfeiture procedure once the defendant has been informed that forfeiture may be ordered.

We find no evidence in the record of any adherence to the procedure in LSA-R.S. 32:1550 et seq. governing such a forfeiture, and, since we feel that it should not be dispensed with, we hereby vacate the order and remand this case to the trial court to conduct a proper forfeiture proceeding for the defendant’s truck.

In all other respects, the defendant’s conviction and sentence are hereby affirmed for the reasons stated herein.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

ON APPLICATION FOR REHEARING

PER CURIAM.

From our judgment of December 12, 1984, the State of Louisiana has filed an application for rehearing with regard to that portion of our judgment which held that the State had not adhered to the proper forfeiture procedure set forth under R.S. 32:1550, governing the forfeiture of a vehicle or other property pursuant to that statute. With its application for rehearing, the State furnished a certified copy of proceedings instituted subsequent to the order of appeal granted by the trial court in this matter.

From these exhibits filed by the State, it appears that by pleadings filed on May 28, 1984, the State, through the District Attorney of the Sixteenth Judicial District Court, in docket number 55,867, filed a rule to show cause against “1979 Ford F-100 truck, La. Lie. # T-234893.” On July 6, 1984, the defendant, Raymond Boutte, signed an affidavit that he was the owner of the truck, and: that he waived all notice, time requirements, and proceedings in this matter; and wherein he declared that he was fully aware of the allegations of the petition and did not contest same nor did he wish to contest the forfeiture proceedings; and that he waived all rights in the matter and wished to surrender all rights, title, and interest he may have in the vehicle in question, to the Iberia Parish Sheriff’s Department. On August 14,1984, the defendant having failed to show cause why the vehicle should not be forfeited, the trial court ordered the forfeiture of the vehicle to the Iberia Parish Sheriff’s Department in conformity with LSA-R.S. 32:1550, et seq.

Inasmuch as the issue of the forfeiture of the vehicle is now moot, our order of remand to the trial court for further proceedings is hereby vacated, and the application for rehearing is denied.


author: WILLIAMS, Judge.

text:
    Nancy Frederick Henderson wife of/and Nolden HENDERSON, Jr. v. TODD SHIPYARDS, et al.
    Nos. CA-2098, CA-2356.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1984.
    Writ Denied Feb. 4, 1985.
    Michael A. Britt, Leach & Paysse; Gary M. Zwain; Thomas E. Loehn; Joseph L. von Rosenberg, III, Leonard A. Young, Franklin H. Jones, III, Bienvenu, Foster, Ryan & O’Bannon; Thomas R. Blum, Kenneth R. Bowen, Simon, Peragine, Smith & Red-fearn; James L. Selman, II, Jones, Walker, Waechter, Poitevent, Carrere & Denegre; Robert A. Yosbein, Lynn M. Luker, Adams & Reese, New Orleans, for defendants-appellees.
    Cheryl A. Denney, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    Before REDMANN, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a ruling by the trial court granting defendants’ exceptions of prescription and dismissing plaintiff’s action.

On October 3, 1972, plaintiff’s husband died of lung cancer. Plaintiff alleges that she learned on June 29, 1982, that her husband’s lung cancer could possibly have been caused by toxic substances with which he had worked while employed by Todd Shipyards. On May 31, 1983, plaintiff filed a wrongful death action against Todd Shipyards and other defendants which plaintiff claimed were responsible for her husband’s death by lung cancer.

Because more than ten (10) years have elapsed since the death of her husband, plaintiff has relied upon the doctrine of contra non valentón agere nulla writ prescripto to defeat the apparent nullity of this action by virtue of prescription. This doctrine allows a plaintiff to bring an action although it has prescribed in either of two circumstances: (1) the cause of action has not manifested itself so that certainty of proof can be presented in court; and/or (2)defendant has misled, concealed, etc. facts so that plaintiff is not aware that he or she has a cause of action. E.g. Reed v. General Motors Corp., 400 So.2d 919 (La.App. 1st Cir.1981). Plaintiff argues that she relied upon her assumption that her husband’s lung cancer was due to his heavy smoking and was not aware until June of 1982 that the lung cancer could have been caused by his employment .with Todd.

When an action appears to have prescribed on the face of the petition, a plaintiff bears the burden of proof to establish facts which would have the effect of either interrupting or avoiding prescription. Yarbrough v. Louisiana Cement Co., 370 So.2d 602, 602 (La.App. 4th Cir.1979); Marcel v. Hospital Corp., 322 So.2d 302 (La.App. 1st Cir.1975). The defendants argue that plaintiff has failed to carry this burden of proof, asserting that she should not be able to rely on her own failure to pursue the question of the cause of her husband’s death in order to defeat the very purposes for which prescription has been enacted. We agree.

Constructive, not actual, notice of a cause of action is required. If, therefore, the plaintiff has information enough to “excite attention” or to give “her notice of everything to which inquiry may lead,” then her cause of action has prescribed. See Cartwright v. Chrysler Corp., 255 La. 597, 232 So.2d 285 (1970).

In the court below, plaintiff made no showing that she had inquired into the cause of her husband’s death, but had rather simply rested upon assumption that his death had been caused by his heavy smoking. Under the circumstances presented by this case, we cannot hold that plaintiff has presented sufficient evidence to carry her burden of proof. For these reasons, the decision of the trial court is affirmed, all costs to plaintiff.

AFFIRMED.


text:
    STATE of Louisiana v. Glenn WADE.
    No. KA-1811.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 12, 1984.

      Susan Elaine Ogden, Calvin Johnson, Loyola Law School Clinic, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Before REDMANN, WARD and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a jury decision finding defendant Glenn Wade guilty of simple burglary in violation of La.R.S. 14:62.

The State adduced the following facts at trial: On December 5,1972, Albert Westley received a telephone call informing him that a burglary was taking place in a vacant rental property that he owned. West-ley’s son called the police, and Westley and his wife went to the house. When they arrived, they saw defendant Wade leaving the house carrying draperies that had been hanging inside. Westley held defendant at gunpoint until the police arrived. Both the police and Westley testified that a kitchen window had been broken and raised and that the burglar bars covering the window had been bent. The police arrested defendant. At trial, the Westleys testified that they did not know defendant and had not given him permission to enter their property or to remove the draperies.

Defendant appeals his conviction, asserting that the evidence presented at trial was insufficient to convict him. We disagree. We have reviewed the evidence in a light most favorable to the prosecution and find that a rational trier of fact could have found defendant guilty of simple burglary beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Defendant was seen exiting from a dwelling which he was not authorized to enter and had in his possession items which he was not authorized to have by their owner. Although the defense asserts that the state failed to prove criminal intent, these facts dearly present a situation in which intent may be inferred from defendant’s actions. See State v. Graham, 420 So.2d 1126 (La.1982); State v. McDermitt, 406 So.2d 195 (La.1981).

For the foregoing reasons, defendant’s conviction and sentence are affirmed.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellant, v. Clyde J. WYATT (No. 16612-KA), Joe W. Sutton (No. 16613-KA), James C. Hottinger (No. 16614-KA), Appellees.
    Nos. 16612-KA to 16614-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Dec. 17, 1984.

      William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Carl Parkerson, Dist. Atty., Geary Aycock, Asst. Dist. Atty., Monroe, for appellant.
    Farrar & Jefferson by Stephen A. Jefferson, Monroe, for appellees.
    Before MARVIN, JASPER E. JONES, Jr. and SEXTON, JJ.
   MARVIN, Judge.

The State attempted to appeal the sustaining of motions to suppress marijuana obtained after an investigatory stop and a warrantless search and seizure from the automobile occupied by the three defendants that was consented to by the defendant driver of the automobile.

An appeal does not lie in such a situation. The record having been lodged and briefs filed as in an appeal, we consider the appeal as an application for a writ of review by the State. See State v. Reid, 355 So.2d 932 (La.1978); State v. Bradley, 445 So.2d 209 (La.App. 4th Cir.1984); CCrP Art. 912. We grant the application and reverse the trial court and overrule the motions to suppress.

FACTS

Defendants did not testify or call witnesses at the hearing on the motion to suppress. The State produced two officers of the West Monroe Police Department and the person whose name was used in a telephone call to the police department.

The communications officer said that at 8:50 p.m. on January 15,1984, he received a telephone call from a person, otherwise unknown to him, who identified himself as Joe Cotton, a resident of Apartment No. 57 of the Pine Terrace Apartments in West Monroe. The telephoner reported that when walking to his apartment within the last few minutes he had seen, and had smelled smoke from, “three boys” who were “smoking dope” in a maroon Pinto parked at a washateria at the Pines Terrace Apartments. These apartments and the washateria, according to the officers, were near the intersection of Pine Terrace Street and North 7th Avenue.

A patrolman was informed of these reported details and was dispatched by radio to the scene. The communications officer said that in seven minutes the patrolman radioed back that he had the three suspects and was bringing them to the police station. The patrolman said that he drove to Pine Terrace and North 7th within one minute after receiving the dispatch and saw a maroon Pinto driving away from the stop sign at the intersection. The stop sign was about 200-250 feet away from the washateria on Pine Terrace. The patrolman stopped the Pinto by using the flashing light on his patrol car.

The patrolman told the driver of the car, who had exited the Pinto after the stop, about what had been reported to him and why he was investigating. He asked the driver for his driver’s license. The driver denied smoking pot and said he did not have a driver’s license. The patrolman asked whether the driver “would mind” him searching the car. The driver said, “sure, go ahead.” The marijuana was found underneath the passenger side of the front seat occupied by another defendant. The three defendants (including one who was on the back seat) were given Miranda warnings and were transported to the station.

In obedience to Brady v. State of Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and much to its credit, the State subpoenaed Joe Cotton after learning that he had denied, to a police investigator a day or two after the defendants’ arrest, making the telephone call or knowing anything about the recited circumstances. Cotton testified that he lived in Apt. No. 60 of Pine Terrace Apartments, that Apt. No. 57 was next door but he did not know who resided there at the time, that he did not make the phone call, did not know defendants or anybody involved, and did not know who had used his name.

THE ISSUE

The precise issue is whether the recited circumstances afforded the patrolman the requisite reasonable suspicion to justify the investigatory stop of the automobile and the interrogation of its occupants. La. CCrP Art. 215.1; Terry v. State of Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Belton, 441 So.2d 1195 (La.1983). Both the federal and state constitutions protect a citizen against unreasonable invasions of privacy, detentions, and searches and seizures. U.S. Const. Amend. IV; LSA-Const. Art. 1, § 5. La. CCrP Art. 215.1 recognizes the case law authority that a law enforcement officer, under appropriate conditions, may temporarily stop and interrogate a citizen about possible criminal activity. Each case must be determined by its own circumstances. State v. Chaney, 423 So.2d 1092 (La.1982).

The primary inquiry is directed to the totality of the circumstances, knowledge and experience of the officer making the stop. The “good faith” of the officer is a secondary consideration. State v. Flowers, 441 So.2d 707 (La.1983). Compare Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Reasonable suspicion to justify an investigatory stop and interrogation is something less than probable or reasonable cause to arrest without a warrant. La. CCrP Art. 213. Nevertheless, the detaining officer must have articulable knowledge of particular facts that meet the test of reasonableness to suspect the detained person of criminal activity and to justify the detention against an infringement of the constitutionally protected right of freedom from governmental interference. State v. Wilson, 366 So.2d 1328, 1331 (La.1978).

An informant’s tip may provide the reasonable suspicion, but that tip must have some indicia of reliability that would cause a reasonable mind to suspect the detainee of criminal activity. Wilson, supra at p. 1332.

The patrolman was acting in response to information that can be characterized as coming from a citizen informant, but which was later revealed to have come from an anonymous informant. See and compare State v. Morris, 444 So.2d 1200 (La.1984); State v. Wilson, supra; and State v. Rodriguez, 396 So.2d 1312 (La.1981). Tips from citizen informers have been recognized as entitled to a higher degree of reliability or credibility than tips from anonymous informers, which require some independent police corroboration, and from confidential informers, which require proven reliability. Adams v. Williams, 407 U.S. 143, 92 S.Ct. 1921, 32 L.Ed.2d 612 (1972).

The trial court relied primarily on State v. Wilson, supra. As we have shown, Wilson correctly analyzes and states the law. In our opinion, however, Wilson is factually inapposite. There, the confidential informant obtained his information from other informants inside the barroom who did not have firsthand knowledge and observation as here. There it was said that “the information was no ‘more substantial than a casual rumor ... or an accusation based merely on an individual’s general reputation.’ ” Wilson, at p. 1331.

In Wilson, there was “no information about the ultimate ... source of the tip ...—the anonymous informant inside the lounge [who told the confidential informant who told the police]—... connecting the defendant with marijuana trafficking ...” There was “nothing ... to suggest that the tip in fact was anything more than casual rumor or accusation.” Supra, at p. 1332.

Even though this patrolman could not negate the existence of another maroon Pinto parked at the washateria, we cannot and do not find unreasonable the patrolman’s suspicion that the defendant’s Pinto driving away from the stop sign at an intersection within 250 feet of the washate-ria was the Pinto he was seeking. The patrolman had been told only a minute before of the details of the tip (that a named resident of the apartment complex had walked by the automobile at the was-hateria and had seen and smelled three occupants “smoking dope” in the car). This knowledge afforded the patrolman ar-ticulable reasonable suspicion to stop the vehicle and interrogate its occupants.

The patrolman’s knowledge at the time of the stop came from the firsthand observations of a source identified to him as a citizen informer. See State v. Abadie, 390 So.2d 517 (La.1980). Neither the time (one minute after the report) nor the distance factor (200-250 feet from the washateria) is here attenuated. The patrolman would have neglected his duty to ascertain whether the defendants were violating LRS 40:966 or whether the defendant driver posed a danger to the motoring public by violating LRS 14:98.1, had he not stopped the vehicle.

The driver and ostensible custodian or owner of the automobile consented to the search after the stop and we do not consider whether the search could have been conducted without a warrant.

Accordingly, we grant the writ, reverse the trial court, and hereby overrule the motions to suppress and remand these cases to the trial court for further proceedings.

WRIT GRANTED, REVERSED, RENDERED, REMANDED.


author: SCHOTT, Judge.

text:
    STATE of Louisiana v. Adolph ARCHIE.
    No. KA 0627.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Harry F. Connick, Dist. Atty., Mary Charlotte McMullan, Asst. Dist. Atty., New Orleans, for plaintiff-appellee.
    Dwight Doskey, Maurice Hattier, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before SCHOTT, BYRNES and ARMSTRONG, JJ.
   SCHOTT, Judge.

Defendant was convicted of being a felon in possession of a firearm in violation of R.S. 14:95.1 and sentenced to ten years at hard labor. In his only assignment of error, he contends the trial court erred in denying his motion to suppress. Moreover, he contends he is entitled to have his conviction and sentence vacated because a portion of the transcript of the hearing on the motion to suppress has been lost so that he is being deprived of a meaningful review on appeal.

The record does not contain a regular transcript of the hearing. Our own efforts to have the transcript produced have com firmed defendant’s counsel’s assertion that it is lost and cannot be reproduced by the court reporter.

In Louisiana a person is entitled to judicial review based upon a complete record of all evidence upon which the judgment is based. LSA-Const. Art. 1, Section 19. If defendant’s motion was erroneously denied, his conviction was necessarily illegal because his possession of the firearm is one of the essential elements of the offense.

However, the circumstances do not warrant vacating the conviction and sentence at this point. All that is required is for the trial judge to conduct another hearing on the motion to suppress and again act on the motion. Should she decide to grant the motion, she would likewise be required to vacate the conviction and sentence. On the other hand should she again deny the motion, the case shall be returned to this court for complete review on appeal.

We are aware that Officer Corales is deceased, but luckily the court reporter did produce the portion of the transcript of the motion hearing containing his testimony for use at the trial. It was the testimony of Officer Peyton which was lost. Therefore, the trial court shall utilize the transcription of the testimony of Officer Co-rales taken on September 7, 1982 together with the testimony of Officer Peyton and any other evidence the parties may wish to produce in conducting another hearing on defendant’s motion to suppress the firearm.

Accordingly, the case is remanded to the trial court for further proceedings as outlined in this opinion.

REMANDED.


text:
    STATE of Louisiana v. Douglas M. LEE and Leon Percy.
    No. KA 1802.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Pamela S. Moran, Asst. Dist. Attys., New Orleans, for plaintiff-appellee.
    Bryan C. Gustafson, Student Practitioner, Calvin Johnson, David Girard, Supervising Attys., Loyola Law School Clinic, New Orleans, for defendants-appellants.
    Before SCHOTT, BYRNES and ARMSTRONG, JJ.
   SCHOTT, Judge.

Defendant, Douglas M. Lee, was convicted of possession with intent to distribute pentazocine in violation of LSA-R.S. 40:967 and sentenced to four years at hard labor. He pled guilty to the offense reserving his right to appeal from the trial court’s previous denial of his motion to suppress. Thus, his only assignment of error is that the trial court erroneously denied the motion.

However, we first note that there are no errors patent on the face of the record.

Officer Elder testified as follows: He and Officer Chimento, both narcotics officers, received information from a “reliable confidential informant” that Rose Tobias was selling wholesale “sets” of talwin and pyrabenzamine from 3026 South Robertson Street. At 2:50 P.M. they set up a surveillance and observed defendant and Leon Percy, a co-defendant in the trial court, leaving the premises and looking about as they walked toward a van. Elder recognized defendant as a self admitted narcotic user with whom he had contacts previously. Defendant was carrying a cloth object. Defendant and Percy drove off in the van, and the officers followed them for a short distance. The officers stopped the van, and, as they walked up to it, they saw Percy place under the seat a black object which Elder thought was a weapon. After ordering the suspects from the van, Chi-mento found a gun and forty-seven sets of talwin and pyrabenzamine under the seat. A further search of the van uncovered a shotgun and nineteen more sets.

The issue is whether the police had the right to stop defendant under the circumstances. If so, the evidence discovered after the stop was admissible. A policeman may stop a person in a public place whom he reasonably suspects is committing or has committed an offense. C.Cr.P. Art. 215.1. Reasonable cause for such a stop is something less than probable cause required to make an arrest under C.Cr.P. Art. 213 and must be determined under the facts of each case. State v. Belton, 441 So.2d 1195 (La.1983). The detaining officer must have knowledge of specific, articula-ble facts which reasonably warrant the stop. State v. Flowers, 441 So.2d 707 (La.1983).

We readily conclude that the facts in the officers’ possession were quite sufficient to support a reasonable suspicion that defendant had just obtained narcotics and still had them in his possession. To recapitulate such facts: they 1) had a tip from a reliable informant that drugs were being sold at a specific address; 2) observed defendant leaving the premises carrying an object which could contain drugs; 3) recognized defendant as a known drug user; and 4) observed defendant looking about as he walked toward the van. Under the cited cases and the clear provisions of C.Cr.P. Art. 215.1 the officers were justified in stopping defendant, and the motion to suppress the evidence was properly denied.

AFFIRMED.


text:
    Milton SCHAEFFER v. STATE of Louisiana BOARD OF REVIEW FOR the OFFICE OF EMPLOYMENT SECURITY.
    No. CA 2170.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.
    Stephen R. Perez, Chalmette, for plaintiff-appellant.

      Denise A. Nagel, James A. McGraw, Herman Robinson, Dept, of Labor, Baton Rouge, for defendant-appellee.
    Before SCHOTT, BYRNES and ARMSTRONG, JJ.
   SCHOTT, Judge.

This is a claim for unemployment compensation benefits which has been denied at all administrative levels and by the district court. Plaintiff resigned his employment with Credico Financial, Inc. to take another job. After working five and one-half months for the second employer he left this employment under non-disqualifying circumstances and filed his claim for benefits. The issue is whether he left Credico without good cause connected with his employment so that he was properly disqualified for benefits under LSA-R.S. 23:1601 which provides:

“An individual shall be disqualified for benefits:
(1) If the administrator finds that he has left his employment from a base period or subsequent employer without good cause connected with his employment. Such disqualification shall continue until such time as the claimant (a) can demonstrate that he has been paid wages for work subject to the Louisiana Employment Security Law or to the unemployment insurance law of any other state or the United States equivalent to at least ten times his weekly benefit amount subsequent to a claim for a com-pensable week for unemployment benefits under this Act and (b) has not left his last work under disqualifying circumstances.”

The initial inquiry is whether the administrator correctly found that plaintiff left Credico, his base period employer, without good cause connected with his employment. At the hearing before the appeals referee, plaintiff testified that he left because he did not want to travel any longer in connection with his job and because he heard Credico was going to be sold which would jeopardize his job. This report did not come from the management of his company. The appeals referee concluded that plaintiff left Credico for personal reasons not connected with his employment.

We agree with the referee’s interpretation of the facts and his conclusion. Plaintiffs decision to leave was not based on a change in working conditions and was not caused by discriminatory or arbitrary treatment by his employer. See McDonald v. Lockwood, 424 So.2d 356 (La.App. 2d Cir.1982); Dunigan v. Admin, of Dept. of Emp. Sec., 351 So.2d 807 (La.App. 1st Cir.1977). He simply decided he no longer wanted to travel in his job — a purely personal preference on his part. Furthermore, his assumption that his job was in jeopardy because the company was going to be sold was not attributable to the employer. This report was more in the nature of a rumor. Such an unfounded fear cannot be classified as employment connected good cause.

In his brief plaintiff argues that this result is unfair. After ten years with Credico he left to take a new job which he lost through no fault of his own. He reasons that he is being penalized for changing jobs. The trial judge likewise remarked that the statute did not seem to produce an equitable result in this case.

Nonetheless, the statutory scheme is such that once plaintiff became disqualified for leaving the first job without good cause, he would continue to be disqualified until he met certain conditions imposed by the legislature. The administrative agency and the courts have no alternative but to apply the law as written.

Accordingly, the judgment is affirmed.

AFFIRMED.


author: GARRISON, Judge.

text:
    Arlette C. LONG, Individually and John J. Long, Jr., Individually v. ABC INSURANCE COMPANY OR COMPANIES, Dr. Luis Oms, Dr. Alton Ochsner, Jr., and Montelepre, Inc. and/or Montelepre Memorial Hospital.
    No. CA 2737.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 19, 1984.
    Writ Denied Feb. 8, 1985.
    E. John Litchfield, Berrigan, Danielson, Litchfield, Olsen & Schonekas, New Orleans, for defendant-appellee.
    Before GARRISON, BYRNES and LO-BRANO, JJ.
   GARRISON, Judge.

This lawsuit, filed in Civil District Court for the Parish of Orleans, was originally allotted to Judge Steven Plotkin. The defendant, Montelepre Memorial Hospital, filed a motion to recuse Judge Plotkin from the case. The motion was granted and signed by Judge Gerald Fedoroff and the case was ordered reallotted. The plaintiff is now appealing the ruling ordering the recusal of Judge Plotkin. The defendant filed a motion to dismiss this appeal alleging that the recusal of a judge is an interlocutory judgment which is not appealable in the absence of a showing of irreparable injury. Trial on the merits of this case has not yet taken place.

The applicable Code of Civil Procedure articles are as follows:

An appeal may be taken from a final judgment rendered in causes in which appeals are given by law whether rendered after hearing or by default, and from an interlocutory judgment which may cause irreparable injury. LSA-C. C.P. Art. 2083; and
A judgment is the determination of the rights of the parties in an action and may award any relief to which the parties are entitled. It may be interlocutory or final.
A judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment.
A judgment that determines the merits in whole or in part is a final judgment. LSA-C.C.P. Art. 1841.

According to Article 1841, the judgment ordering the recusal of Judge Plotkin is clearly interlocutory in nature. Furthermore, the plaintiff, in filing this appeal, has not made any showing of irreparable injury as required by Article 2083. Because this court lacks jurisdiction to hear this appeal, it is ordered that this appeal be dismissed.

APPEAL DISMISSED.


text:
    Brad MOLINARIO v. HARTFORD INSURANCE COMPANY and C.N. Flagg, Company, Inc.
    No. CA 2647.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 1984.
    See also La.App., 462 So.2d 254.
    Cheryl A. Denney, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    James C. Cockfield, Metairie, for defendants-appellees.
    Before SCHOTT, BYRNES, ARMSTRONG, JJ.
   SCHOTT, Judge.

Plaintiff has appealed from a dismissal of his workers’ compensation suit. A resident of Chalmette, Louisiana, he was employed as a boilermaker in Massachusetts where he sustained an accident. The issue is whether the extraterritorial coverage of the compensation act contained in LSA-R.S. 23:1035.1(l)(b) applies to plaintiff.

This statute provides that an employee who suffers a compensable injury while working outside of the state shall be entitled to compensation benefits if “(b) he is working under a contract of hire made in this state.”

The case was submitted on a motion for summary judgment by defendant on the basis of depositions of plaintiff and defendant’s construction manager. Defendant, C.N. Flagg Company, a mechanical contractor was engaged in a project in Massachusetts and required the services of a number of boilermakers. Under its union contract it was required to hire the boilermakers through Local 29 in Boston. Local 29 contacted Local 37 in Chalmette to recruit some employees. Plaintiff, a member of Local 37, responded to his Local’s invitation and traveled to Massachusetts where he reported to work for defendant. This was the first contact between plaintiff and defendant. At this time defendant was not doing business in Louisiana and had no contacts with the state whatsoever.

Nothing in the depositions even suggests that a contract of hire was made in this state. The trial court correctly concluded that it had no jurisdiction over the subject matter of this case. The judgment appealed from is affirmed.

AFFIRMED.


text:
    Frank GILBERT v. HARTFORD INSURANCE COMPANY and C.N. Flagg, Company, Inc.
    No. CA 2648.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 21, 1984.
    Cheryl A. Denney, Gertler & Gertler, New Orleans, for plaintiff-appellant.
    James C. Cockfield, Metairie, for defendants-appellees.
    Before SCHOTT, BYRNES, and ARMSTRONG, JJ.
   SCHOTT, Judge.

This case is identical to that of Molinario v. Hartford Insurance Company, 462 So.2d 253. Plaintiff, Frank Gilbert was employed in the same way by C.N. Flagg and was injured in the same accident as Molinario. For the reasons assigned in the Molinario case the judgment dismissing Gilbert’s case is affirmed.

AFFIRMED.


author: JOHN S. COVINGTON, Judge Pro Tem.:

text:
    Louis F. LETEFF v. DEPARTMENT OF CORRECTIONS, HEADQUARTERS.
    No. 83 CA 1315.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Frank L. Leteff, Floyd J. Falcon, Jr., Avant & Falcon, Baton Rouge, for appellant.

      Betty Jean G. Ray, Dept, of Justice, Corrections Section, Baton Rouge, for appellee.
    Robert R. Boland, Jr., Civil Service Legal Counsel, Dept, of State Civil Service, Baton Rouge, for Herbert L. Sumrall.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVING-TON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem.:

Louis F. Leteff, an employee of the Department of Corrections (Department), appeals from a judgment of the State Civil Service Commission (Commission) upholding his demotion.

We reverse.

Appellant was a permanent classified employee in the Department’s Management and Finance Section, Headquarters Division, when Secretary John T. King notified him by letter of his demotion from Fiscal Auditor IV to Management Analyst I. The Secretary detailed two separate incidents of alleged misconduct and cited these as the reason for appellant’s demotion. The first incident involved a request made of appellant by his supervisor, Undersecretary Michael Martin, for submission of a draft proposal for conducting an internal control survey of the Department’s disbursement processes. Although appellant ultimately submitted a proposal, according to Mr. King his response was untimely and substantively not in compliance with his supervisor’s request. Mr. King commented as well that appellant’s responses to Mr. Martin (in the exchange of memos after the request was made) revealed a “lack of knowledge and understanding of accounting and auditing procedures”. The second incident involved appellant’s allegedly telling business managers at two institutions not to keep certain records, in violation of generally accepted accounting principles. In the letter’s conclusion, Mr. King summarized the charges against appellant as follows:

“Therefore, because of your failure to perform your assigned duties and because you did not encourage policies and procedures for institutional compliance with accounting standards, this letter will serve to inform you that you will be demoted from your position ...”

At the hearing, appellant moved for summary disposition in his favor, arguing that the letter of notice of demotion was so vague and unspecific in its charges that under Civil Service Rule 12.3(c) and Article X, Section 8 of the 1974 Louisiana Constitution, the demotion should be ineffective. The record shows that the Corn-mission examined the letter and retained as sufficiently specific only the two charges summarized in the letter of demotion. However, the Department failed to submit any evidence or testimony relative to the second charge, and the Commission’s written opinion makes no reference to it.

The Commission upheld appellant’s demotion on the basis of the first charge only, having determined that appellant failed to prepare the draft proposal as directed by his supervisor. In addition, the Commission concluded:

“Appellant’s response to the memoranda indicated both sarcasm and a total lack of knowledge of auditing procedures and functions that should have been possessed by an individual holding the responsible position of Fiscal Auditor IV. Appellant did not, through his responses to Martin and in his testimony before this Commission, exhibit the knowledge or understanding of accounting and auditing procedures. Appellant admitted in his testimony that he had not been performing auditing functions and failed to indicate that this lack of performance was for any reason other than his lack of knowledge and ability.”

Article X, Section 8(A), of the Louisiana Constitution of 1974 provides that a classified civil service employee with permanent status shall not be subjected to disciplinary action except for cause. Legal cause exists when the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to efficient operation of the public service in which the employee is engaged. Leggett v. Northwestern State College, 242 La. 927, 140 So.2d 5 (1962). The appointing authority bears the burden of proving legal cause by a preponderance of the evidence. Thornton v. DHHR, 394 So.2d 1269 (La.App. 1st Cir.1981).

The record reveals that by memo dated November 18, 1981, appellant’s newly appointed supervisor Mr. Martin directed appellant to submit, by November 25th, a draft proposal for conducting an internal control survey of the Department’s disbursement processes. Appellant responded by memo dated that same day, requesting clarification of Martin’s intent, in light of some language in his memo which might, if taken literally, be somewhat confusing. In addition, appellant requested a “literal description” of certain acronyms, “GAAP” and “GA-AFR”, used by his supervisor. Appellant testified that he understood what these terms meant (even though GAAFR was mistakenly hyphenated by Mr. Martin), but because he knew his supervisor knew very little about accounting or auditing, he wanted to be sure Martin understood what he was asking for. Mr. Martin testified that although an internal control survey was actually needed, he assigned appellant this task mainly in an attempt to test the latter’s knowledge of auditing functions and procedures.

Appellant testified that thereafter, his supervisor verbally told him to forget the survey proposal and assigned him to another project. Martin-did not refute this assertion. However, he sent appellant another memo on December 8, 1981, well past the initial deadline of November 25th, defining the acronyms “GAAP” and “GAAFR”. He failed to address appellant’s other request for clarification, but set a new deadline (December 15th) for submission of appellant’s draft proposal. Appellant submitted his proposal on December 14th. Because we rule as we do, we find it unnecessary to go into the details of appellant’s response and why the Department and the Commission found it to be inadequate.

Martin never responded to appellant’s proposal, although he testified that he was not satisfied with the substance of appellant’s suggestions. He testified that as a result of this exchange of memos, he became concerned that appellant lacked the necessary understanding and ability to carry out the functions of his position. Accordingly, he assigned appellant to other duties, unrelated to auditing.

On April 28, 1982, Martin gave appellant a Satisfactory Service Rating Report, noting in the report that he had not assigned appellant any duties as a Fiscal Auditor IV for the past eight months. However, he stated that the other duties he’d assigned to appellant had been performed to his satisfaction. He did not mention the supposed unsatisfactory performance on the requested survey proposal. Sometime thereafter, Secretary King attempted to demote appellant, for reasons not in the record. Appellant was subsequently reinstated to his former position, but on August 12,1982, appellant received notice of a second demotion, which is the subject of this appeal.

We conclude that the Department was estopped from using the alleged failure of appellant to adequately prepare the ordered proposal as the basis for disciplinary action approximately eight months later, in light of the fact that in the time period intervening, appellant’s supervisor gave him a Satisfactory Service Rating Report, noting specifically that appellant had performed all assigned duties satisfactorily. As a Rating Report is required annually for each employee (Civil Service Rule 10.2(a)), the satisfactory rating appellant received April 28,1982 clearly encompasses all tasks assigned to appellant over the previous year.

Much testimony at the hearing was concerned with, and much argument in brief was devoted to, the question of whether appellant is qualified for his former position of Fiscal Auditor IV. That question is not properly before us for resolution, nor was it properly before the Commission. The Commission erred in making a determination so broad in scope and clearly beyond the scope of the charges against appellant. The latter’s demotion was based on two specific charges, and general lack of qualification for his position was not one of them.

As the Department failed to prove legal cause for the demotion of appellant, the Commission’s ruling upholding the demotion was manifestly erroneous. In light of our ruling, we need not address appellant’s other arguments and specifications of error.

Accordingly, for the reasons assigned above, the ruling of the Commission is reversed and appellant is ordered reinstated in his position as Fiscal Auditor IV effective August 20, 1982, with full back pay and all accrued benefits, with credit to the Department for income earned by appellant since August 20, 1982 in his position of Management Analyst I. The Department is to pay costs in the amount of $50.00.

REVERSED.

      . Civil Service Rule 12.3 provides, in pertinent part:
      “Procedure in Removals, Demotions and Reductions in Pay of Permanent Employees, (a) In every case of removal, demotion or reduction in pay for cause of a permanent employee, the appointing authority or his authorized agent shall:
      1. Furnish to the employee at the time such action is taken, or prior thereto, a statement in writing given detailed reasons for such action.
      (c) For purposes of this Rule, "detailed reasons” shall include at least a description of the misconduct for which the disciplinary action is being levied, the date, time and place of such misconduct, the names of persons directly involved in or directly affected by the misconduct (unless their identities are protected by state or federal statute or regulation, in which case, identification shall be made as permitted by such statute or regulation) and such other information as will fully inform the employee of the charge against him and will enable him to prepare a defense.”

      . Article X, Section 8 of the 1974 Louisiana Constitution provides, in pertinent part:
      § 8. Appeals
      Section 8. (A) Disciplinary Actions. “No person who has gained permanent status in the classified state or city service shall be subjected to disciplinary action except for cause expressed in writing. A classified employee subjected to such disciplinary action shall have the right of appeal to the appropriate commission pursuant to Section 12 of this Part. The burden of proof on appeal, as to the facts, shall be on the appointing authority-”

      . Civil Service Rule 10.2(a) provides:
      "10.2 Service Ratings — How Made.
      (a) The appointing authority of each department shall as of March 31 of each year have a service rating made of each permanent employee who has worked ninety days or more in the class of position he occupies.”


author: CRAIN, Judge.

text:
    David MULKEY v. STONEY-POINT MISSIONARY BAPTIST CHURCH.
    No. 83 CA 1360.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      Autley B. Newton, Hammond, for plaintiff-appellee.
    Kenneth P. Carter, New Orleans, Gordon Matheny, Hammond, for defendant-appel-lee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

This is an appeal from a judgment of the trial court in a petitory action finding in favor of plaintiff, David Mulkey, and against the defendant, Stoney-Point Missionary Baptist Church.

FACTS

The trial judge made the following findings of fact, which we adopt as our own:

I.

On February 28, 1934, New Orleans-Hammond Land Company, Inc., sold to Maurice B. O’Neil (ancestor in title of the third party defendants) Lots 10, 11, 12, 22, 23 and 24 of Square N of the Hammond Heights Subdivision. At an earlier date, the vendor corporation had recorded a plat of survey of the EV2 of the SWV4 of Section 1, T6S, R7E designating the same to be Hammond Heights Subdivision. This property is located in a rural area several miles east of Natalbany. There is no evidence that the subdivision was ever developed.

II.

On December 19, 1946, New Orleans-Hammond Land Company, Inc. sold plaintiff a parcel described as 137 acres of land, more or less, being the EV2 of SWV4 and the NEVi of SEVi of Section 1, T6S, R7E and the NV2 of SWV4 of Section 6, T6S, R8E in the Parish of Tangipahoa, State of Louisiana, said land being also described as the Hammond Heights Subdivision and Pine Gable Acres Subdivision. The deed refers to the recordation of the plat of said subdivision. It thereafter states that the sale is less and except the sales of certain parcels to which it refers by the recording data. The prior sale to Maurice O’Neil is not listed as being excepted from the deed.

III.

At the time of the acquisition by plaintiff in 1946, the entire 137 acres, more or less, bounded on the south by the Natal-bany Highway and on the east by the Cherry Street Extension, was fenced. Plaintiff had already run cows on the entire parcel prior to his purchase, and he thereafter continuously kept and grazed cattle on the entire 137 acres. Plaintiff paid taxes on the property since his acquisition in 1946. Plaintiff kept up the fences around the perimeter of the property from his purchase in 1946 until he was disabled in 1981. He regularly walked or rode the fence line checking its condition to make sure it would contain his fifty some odd head of cattle and several horses which grazed on the entire tract.

IV.

When plaintiff was hospitalized in October, 1981, a Mrs. Jacobson checked the fences several times a week for plaintiff. In October of that year she discovered that a portion of the fences along the Natalbany Highway had been taken down. The family had been forced to dispose of plaintiffs cattle due to his illness, but she was concerned that plaintiffs horses would get out.

V.

Third party defendants apparently visited the property on very few occasions from the time their father acquired it in 1934. One occasion was after their mother’s death around 1974, when they found it was fenced and heavily wooded. They thereafter listed the property with one real estate agent and then another. One of the third party defendants testified that the agents ran ads and posted signs. However, no real estate agents were called to testify that signs were ever posted on the property, which would have notified the public that it was for sale.

VI.

On October 22, 1981, third party defendants sold the property in question to the defendant. Several representatives of the defendant visited the property. They found that the fence line was grown up in briars and underbrush. However, the testimony is clear that there definitely was a fence along the Natalbany Highway on the south side of the subject property. It was when some of the defendant’s members cut and removed a portion of the fence along the Natalbany Highway that this suit was instituted by plaintiff.

On March 24, 1982, plaintiff, David Mul-key, filed a possessory action against defendant, Stoney-Point Missionary Baptist Church, alleging that he was disturbed in his possession of a tract of land when defendant recorded an act of sale on October 23, 1981, wherein it purchased six lots in the described property from members of the O’Neil family.

The defendant subsequently filed an answer, reconventional demand and third party demand which denied plaintiff’s possession, set up its title to the six lots, and called the O’Neil family (Marion O’Neil Prevost, Janice O’Neil Giffin, and Maurice O’Neil, Jr.) in warranty.

After trial on the merits, the trial court found that plaintiff had acquired the entire property under a deed translative of title; plaintiff was unaware of the prior sale; plaintiff immediately went into possession of the entire 137 acres (including the six lots in dispute); and this possession remained undisturbed until 1981. The trial court therefore held that plaintiff had acquired the property by prescription and was entitled to be recognized as owner. The court further held that the defendant was entitled to recission of the sale of the' six lots by the third party defendants, the O’Neil family and to restoration of the purchase price.

The O’Neil family, third party defendants, appeal, raising the following three assignments of error:

1. The district court erred in failing to find that David Mulkey did not maintain corporeal possession of Lots 10, 11, 12, 22, 23 and 24 of Square N of the Hammond Heights Subdivision sufficient to be found (a) a possessor for the purpose of a possessory action or (b) an owner by acquisitive prescription for the purpose of a petitory action.
2. The district court erred in considering the plea of the acquisitive prescription since that defense to a petitory action was never raised on behalf of David Mulkey.
3. The district court erred in finding that David Mulkey acquired ownership of the subject six lots by acquisitive prescription under La.C.C. art. 3478.

Appellant alleges as error that the trial court considered acquisitive prescription.

Acquisitive prescription is a mode of acquiring ownership or other real rights by possession for a period of time. La.C.C. art. 3446. Prescription must be pleaded. Courts may not supply a plea of prescription. La.C.C. art. 3452.

Plaintiff instituted this proceeding by filing what was labelled as a “Petition For Possessory Action and Injunction”. Paragraphs I and II of plaintiff’s petition read:

I.
On October 23, 1981, petitioner was, and he is now in possession of the immovable property located in this parish described as follows:
The East Half of the Southwest quarter of Section 1, T6S, R7E, Tangipahoa Parish, Louisiana.
The property described above is referred to in the remainder of this petition as “the property.”
II.
Beginning December 1946, when petitioner acquired the property from New Orleans-Hammond Land Company, Inc., et al, by act of sale and contending (sic.) until the present, petitioner has had possession of ‘the property’ as owner.

Defendant answered and filed a reconven-tional demand asserting title to the property. This converted the action to a petitory action. Plaintiff, as defendant in reconvention to the petitory action simply filed a general denial. However, the allegations in plaintiff’s original possessory action are still a part of the proceedings although the action is now a petitory action. Plaintiff did not go back and specifically label his pleading as a plea of acquisitive prescription, however, his original petition factually alleges it. We see no reason to require the plaintiff to reallege his original pleadings under a different label in order to assert title by acquisitive prescription. Louisiana has adopted the fact theory of pleading. La.C.C.P. arts. 854, 891, 1003, 1004. Where the facts pled are sufficient to give adequate notice of the claim or special defense to the opposing party, it is not necessary to specifically label that claim or special defense as such. Cox v. W.M. Heroman Co., Inc., 298 So.2d 848 (La.1974). The legislature has mandated in La.C.C.P. art. 5051 that “The articles of this Code are to be construed liberally, and with due regard for the fact that rules of procedure implement the substantive law and are not an end in themselves.” See Smith v. Scott, 345 So.2d 981 (La.App. 2d Cir.1977); Doescher v. Marcottle, 343 So.2d 345 (La.App. 4th Cir.1977); Haas Land Company v. O’Quin, 187 So.2d 208 (La.App. 3d Cir.1966). Appellants allude to the issue of acquisitive prescription in their pre-trial memorandum apparently conceding such plea by plaintiff. At trial, testimony relevant to the issue of prescription was offered without objection by third party defendants. Only at the close of trial did counsel of third party defendants object to the trial judge’s consideration of the issue that plaintiff acquired ownership of the property by acquisitive prescription. “So long as the facts constituting the claim or defense are alleged or proved, the party may be granted any relief to which he is entitled under the fact-pleading requirement or restriction.” Cox v. W.M. Heroman Co., Inc., 298 So.2d at 855. We hold that where a possessory action alleges facts sufficient to form the basis of acquisition of ownership by acquisitive prescription, and is subsequently converted to a petitory action by a defendant, it is not necessary to replead the same facts under a different title in order to prove acquisitive prescription.

Plaintiff alleges in his petition that from December 1946 through October 1981, a period of almost thirty-five years, plaintiff possessed the property as owner. We find that plaintiff set forth facts in his petition which sufficiently allege acquisitive prescription. Accordingly, the trial judge was not in error in considering acquisitive prescription by plaintiff.

Appellant alleges as error that appellee did not show acts of possession sufficient to have acquired ownership of the property by acquisitive prescription. Appellant argues that where tracts are noncontiguous, acts of possession must be shown on each tract in order to acquire the property by acquisitive prescription. Lee v. Giauque, 97 So. 669 (La.1923), McCluskey v. Meraux and Nunez, 186 So. 117 (La.App.Orl.1939).

The six lots in dispute were located in Hammond Heights Subdivision and are shown on a plat which was duly recorded prior to the sale of the disputed property to the O’Neils. The plat shows named streets which completely bound Square N. A statutory dedication or substantial compliance with the statute, vests full ownership in the municipality, parish or state. A municipality, Tangipahoa Parish or the state would thus own the streets of Hammond Heights Subdivision if statutory dedication, or if substantial compliance with the statute were found. This issue was not determined by the trial court. However, the trial court found that plaintiff was in uninterrupted corporeal possession of the entire property for greater than thirty years. The record supports his finding that the six disputed lots were corporeally possessed by appellee. We will not disturb factual findings in the absence of manifest error. Arceneaux v. Dominque, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973). We find no manifest error herein. Accordingly, where the trial judge found actual corporeal possession of the disputed property the fact that it was noncontiguous did not affect appel-lee’s acquisition by possession.

The trial judge also found that plaintiff acquired ownership of the six lots by deed translative of title and by possessing the whole of the property in good faith for an uninterrupted period in excess of thirty years. We find that Mulkey acquired the lots by prescription of ten years. La.C.C. art. 3473. The requisites of La. C.C. art. 3475 are met. Plaintiff was in good faith; possessed the property under a deed translative of title; the six lots were susceptible of acquisition by prescription; and the six lots were corporeally possessed for ten years.

Appellant also alleges that plaintiff did not set forth sufficient evidence of corporeal possession to be found a possessor for purposes of instituting a possessory action. The trial judge found that plaintiff was in uninterrupted corporeal possession of the entire property for greater than thirty years. These findings of fact are not manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978), Canter v. Koehring Co., 283 So.2d 716 (La.1973). Adverse claims and acts by appellants prior to the complained of disturbance of October 23, 1981, did not interrupt possession of plaintiff. He was thus entitled to bring a possessory action. Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La.1975). The trial court properly determined that defendants had converted the possessory action into a petitory action.

Accordingly, for the foregoing reasons we affirm the judgment of the trial court. All costs are to be paid by appellant.

AFFIRMED.

      . By proceeding in this manner a plaintiff in a possessory action converted to a petitory action is required to prove title by acquisitive prescription, and is not raising his possession as a defense to defendant's asserting title as with a peremptory exception of prescription. See Montgomery v. Breaux, 297 So.2d 185 (La.1974).

      . La.C.C. art. 3473. Ownership and other real rights in immovables may be acquired by the prescription of ten years,

      . La.C.C. art. 3475. The requisites for the acquisitive prescription of ten years are: possession of ten years, good faith, just title, and a thing susceptible of acquisition by prescription.


author: ALFORD, Judge.

text:
    Robert BRAYDON, Et Ux. v. Ann MELANCON, Et Als.
    No. CA 83 1407.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.

      John A. Lieux, Gonzales, for plaintiffs-appellants.
    Ralph Tureau, Gonzales, Larry G. Starns, Denham Springs, for defendants-appellees.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is a suit for redhibition against the seller of a house and for negligent misrepresentation against the realtor who negotiated the sale. After trial on the merits, the trial court found that plaintiffs had failed to meet their burden of proof under either of the two theories of recovery. We affirm.

Plaintiffs, Robert and Linda Braydon, purchased a house in Ascension Parish on May 19, 1978, from Ronald Moore and his then wife, Denise Moore. Mr. and Mrs. Moore were subsequently divorced and Mrs. Moore was dismissed from this suit due to having received a discharge in bankruptcy. In the early part of 1979, Ascension Parish was stricken with an extraordinary rain (in excess of 7 inches within a 24 hour period) which flooded not only the Braydon home, but also the majority of the parish. As a result, the Braydon home sustained considerable damage from water standing in the house for some three days. The facts developed at trial show that the house had flooded on one occasion prior to the Braydon’s purchase. On the occasion of the first flooding, the house received approximately one-half inch of water for some six hours after an extraordinary rain (also in excess of 7 inches). This fact was not revealed to the Braydons prior to their purchase of the house.

REDHIBITION

While a house’s susceptibility to flooding is a redhibitory defect, the mere fact that a house has flooded under extraordinary rainfall is not a redhibitory defect. Susceptibility, as that term is used, means a propensity, proneness or predisposition to flooding under normal conditions. Smith v. Kennedy, 392 So.2d 177, 178 (La.App. 2nd Cir.1980). The fact that some sixty-five percent of Ascension Parish was flooded at the time in question clearly shows that plaintiffs’ house was flooded under extraordinary conditions. We find no abuse in the trial court’s determination that plaintiffs’ damages were caused by an extraordinary rainfall, rather than due to the house’s susceptibility to flooding under normal conditions.

NEGLIGENT MISREPRESENTATION

For plaintiffs to recover for negligent misrepresentation, they must prove that there was a duty on the part of defendant realtor to supply correct information, a breach of that duty and the breach must have caused plaintiffs damage. Beal v. Lomas and Nettleton Co., 410 So.2d 318 (La.App. 4th Cir.1982). We agree with plaintiffs’ assertion that defendant realtor had the duty to relay accurate information concerning the property. Josephs v. Austin, 420 So.2d 1181 (La.App. 5th Cir.1982), writ denied, 427 So.2d 870 (La.1983). However, we agree with the trial court’s finding that there was no breach of the duty on the part of defendant realtor.

Plaintiffs testified that they were specifically told by defendant realtor that the property had never flooded. This assertion was contradicted by the testimony of defendant realtor who testified that the subject never came up because no questions were asked regarding flooding, nor did she have any independent knowledge of the previous occurrence. Both defendant Moore and his former wife testified that they never informed the realtor of the prior situation due to the extraordinary conditions under which it occurred. In essence, the trial court was faced with a credibility issue which he resolved in favor of defendant realtor. We find no abuse in this determination. Kikendall v. American Progressive Ins. Co., 457 So.2d 53 (La.App. 1st Cir.1984).

Therefore, for the foregoing reasons, the judgment of the trial court is affirmed. Costs are taxed to plaintiffs-appellants.

AFFIRMED.


text:
    Cornell KELLER v. Damon B. TOWNSLEY, et al.
    No. 83 CA 1414.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 28, 1984.
    Douglas C. Ellis, Baton Rouge, for plaintiff-appellee.
    Charles A. Schutte, Jr., Baton Rouge, for intervenor-appellee.
    Raymond G. Jones and Philip D. Lorio, III, New Orleans, for defendant-appellant.
    R. Ryland Percy, Gonzales, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

The central issue of this appeal is whether a reconventional demand filed within ninety days of a supplemental and amending petition is timely under LSA C.C.P. art. 1067. The trial court reached the conclusion that the demand was not timely and maintained defendants in reconvention peremptory exceptions of prescription.

Plaintiff, Cornell Keller, and defendant, Damon B. Townsley, were involved in a traffic accident on May 7, 1981. At the time of the accident, plaintiff Keller was driving a truck leased to his employer, Quality Bearing and Machine Works, by the owner of the truck, Lousteau Ford. State Farm Mutual Automobile Insurance Company insured the vehicle being driven by Mr. Keller. Defendant Townsley was operating a vehicle owned by his employer, Corr Tech, Inc., and insured by Continental Casualty Company.

Suit was filed on behalf of plaintiff on May 6, 1982, naming as defendants Towns-ley, Corr Tech and CNA Insurance Company. Defendants answered the suit, noting the erroneous designation of Continental as CNA Insurance Company. On July 28, 1982, Sentry Insurance A Mutual Company, the workmen’s compensation carrier for Quality Bearing and Machine Works (plaintiff’s employer) filed a petition of intervention.

On February 10, 1988, plaintiff filed a supplemental and amending petition correcting the erroneous designation of Continental as CNA, alleging that plaintiff had developed permanent brain damage and psychological problems since the accident and increasing his prayer for damages by the amount of $500,000.00. Defendants Townsley, Corr Tech and Continental answered the supplemental and amending petition and reconvened against plaintiff, Lousteau Ford and Sentry Insurance for damages caused by the accident. Defendants (plaintiffs in reconvention) next filed an amending answer to the supplemental and amending petition of plaintiff (defendant in reconvention) and an amended recon-ventional demand. In this amended recon-ventional demand, Quality Bearing and Machine Works, State Farm and ABC Insurance were added as defendants in reeon-vention. Defendants’ (plaintiffs in recon-vention) original and amending reconven-tional demands were both filed within ninety days of plaintiff’s (defendants in recon-vention) supplemental and amending petition.

Before reaching the merits of this appeal, there is a problem presented whieh apparently the parties are not aware of and which must be dealt with. There were three separate exceptions of prescription filed by the defendants in reconvention and three corresponding judgments rendered on these exceptions. The first judgment was in favor of Keller and was signed on August 11, 1983. The second judgment was in favor of Quality Bearing and Machine Works and State Farm and was signed on August 12,1983. The final judgment was in favor of Lousteau Ford and was signed on November 15, 1983. The petition and order for appeal filed by plaintiffs in reconvention only refers to the judgment rendered on August 11, 1983. The delays for a devolutive appeal from the August 12, 1983, and the November 15, 1983, judgments having run, these judgments are now final and not before us on this appeal. Therefore, the only judgment before us on this appeal is the August 11, 1983, judgment rendered in favor of plaintiff (defendant in reconvention) Cornell Keller.

LSA C.C.P. art. 1067 provides,

An incidental demand is not barred by prescription or peremption if it was not barred at the time the main demand was filed and is filed within ninety days of date of service of main demand or in the case of a third party defendant within ninety days from service of process of the third party demand.

We agree with defendants’ (plaintiffs in reconvention) argument that “main demand”, as that term is used in article 1067, encompasses more than just the original petition. LSA C.C.P. art. 1153 provides that amendments to petitions and answers which arise out of the conduct set forth in the original pleading relate back to the date of the filing of the original pleading. It has long been recognized that properly allowed supplemental and/or amending petitions form a part of plaintiff’s demand. Self v. Great Atlantic & Pacific Tea Company, 178 La. 240, 151 So. 193 (1933).

In addition, we find no merit in Keller’s argument that policy considerations should dictate against defendants (plaintiffs in re-convention) because additional discovery will have to be conducted to develop defenses to the demands made and the pretrial order will have to be amended. It appears to this court that by amending and supplementing his demand to allege additional injuries and damage, Keller has placed defendants (plaintiffs in reconvention) in the very same position of which he now complains.

Therefore, for the foregoing reasons, the judgment of the trial court maintaining the peremptory exception of prescription in favor of defendant in reconvention (plaintiff in the main action), Cornell Keller, is hereby reversed. In finding as we do, we in no way reach the issue of whether the same result would be reached as to the additional defendants in reconvention who were brought into the suit for the first time in the reconventional demand.

Costs of this appeal are taxed to the appellee, Cornell Keller.

REVERSED AND REMANDED.