text:
    STATE of Louisiana, Appellee, v. King Edward DANGERFIELD, Appellant.
    No. 16662-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Culpepper, Teat, Caldwell & Avery by Jimmy C. Teat, Jonesboro, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, John C. Blake, Dist. Atty., Jones-boro, for appellee.
    Before MARVIN, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   MARVIN, Judge.

We granted a writ of review and ordered the record of Dangerfield’s conviction of DWI 2d offense to be filed in this court.

This record clearly shows that the trial court erred in admitting, over defendant’s objection, the results of a test made of defendant’s blood by a medical technician without first requiring the State to show that the technician held a valid permit to administer such a test and that the test was made in accord with the procedures and techniques officially promulgated by the Department of Public Safety. LRS 32:663, 664. State v. Junell, 308 So.2d 780 (La.1975); State v. Bruins, 315 So.2d 293 (La.1975); State v. Krause, 405 So.2d 832 (La.1981).

Under these circumstances, the conviction must be reversed and the case must be remanded to allow defendant to be retried. State v. Gregory, 403 So.2d 1225 (La.1981); State v. Morrison, 392 So.2d 1037 (La.1980).

The other assignments of error need not be considered.

REVERSED and REMANDED for a new trial.


source: Caselaw Access Project

author: PRICE, Judge. SEXTON, Judge,

license: Public Domain

text:
    STATE of Louisiana, CITY OF BOSSIER CITY, Appellee, v. Melissa A. WALPOLE, Appellant.
    No. 16674-KW.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Writ Denied Jan. 7, 1985.
    Michael G. Latimer, Bossier City, for appellant.
    William J. Guste, Jr., Atty. Gen., Henry Brown, Dist. Atty., James Bullers, Asst. Dist. Atty., Bossier City, for appellee.

      Before PRICE, HALL and SEXTON, JJ.
   PRICE, Judge.

The defendant, Melissa A. Walpole, sought this court’s supervisory review of her probation revocation from her conviction of driving while intoxicated (DWI) in violation of La.R.S. 14:98. We granted the defendant’s application to consider the question of whether the defendant’s un-counseled guilty plea to driving while intoxicated, second offense, was admissible to serve as a basis to revoke her probation for DWI, first offense. Finding error by the city court,- we reverse.

On October 18, 1983, the 'defendant plead guilty, without counsel, to driving while intoxicated, first offense. The defendant was sentenced to pay a fine of five hundred dollars and cost of court or serve sixty days in jail in default of payment and to serve an additional ninety days in jail. Of the five hundred dollar fine, one hundred dollars was suspended and the ninety day jail term was suspended. The defendant was additionally placed on one year supervised probation. On December 11,1983 the defendant was arrested and charged with driving while intoxicated, second offense. The record reflects that on December 15, 1983, Susan Allen, a probation officer for the Bossier Parish Sheriff’s Department, wrote a letter to the Bossier City Court Judge informing him that the defendant was on probation for DWI, first offense, and that she had been arrested on December 11, 1983 for DWI, second offense. On February 27, 1984, the defendant, again without counsel, plead guilty to DWI, second offense, before the Bossier City Court. On March 5, 1984, Susan Allen, Bossier Parish probation officer, filed a petition for cause seeking to revoke the defendant’s probation for DWI, first offense, based upon her guilty plea to DWI, second offense.

On April 23, 1984, the defendant’s probation hearing was held before the Bossier City Court. In the formal notice of revocation, the Bossier Parish probation officer specified that the defendant had violated her conditions of probation which state, “refrain from criminal conduct, specifically the violation of any state, federal, local, or municipal law.” At the revocation hearing, the state did not attempt to prove the underlying DWI offense but relied exclusively upon the fact that the defendant had plead guilty to it. To this extent the validity of the defendant’s probation revocation turns on the validity of the guilty plea to DWI, second offense.

The defendant asserts that her guilty plea to DWI, second offense, is invalid in that there was no valid waiver of her right to counsel.

The right to assistance of counsel is fundamental in our legal system and essential to insure a fair trial. Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Additionally, in a criminal prosecution in this state an accused is entitled to representation by counsel chosen by the accused. If the offense with which the accused is charged is one punishable by imprisonment and the accused is an indigent, he/she has a right to court appointed counsel. La.C.Cr.P. Art. 513.

At the time of the defendant’s guilty plea for DWI second offense, before the defendant was called to plead, the trial judge offered the following instruction “en masse” to all defendant’s pleading guilty present in the courtroom:

It’s has been indicated to the court that you wish to enter a plea of guilty to your charge. In ordér for the court to be able to accept your guilty plea, it’ll be necessary that I advise you of certain rights that you have, rights which you will be giving up if you plead guilty. Do each of you understand the nature of the charge that has been placed against you? Does anyone need me to explain that charge to you? Do you understand that if you plead guilty, you’ll then convicted of this charge and you’ll give up the following rights which you have. One of which is to a trial in this courtroom or by a jury, if applicable. You give up your right to confront and cross examine any witness who accuses you of this charge. You give up your privilege against compulsory self-incrimination or having to take the stand and testify. You give up your right to the compulsory process of this court to require your own witnesses to come here and testify for you. You give up your right to appeal from the verdict of guilty. You give up your right to be represented at all times during all stages of the proceedings, including appeal by an attorney of your choice or if you don’t have the money to hire your own attorney, this court will appoint one to represent you without any cost to you. If, for some reason, you are charged with this same offense at a later date, the fact that you plead guilty today may cause you to have a more severe penalty at that later date if you plead guilty or are found guilty at that time. After having been further advised of your rights, do each of you still voluntarily wish to enter a plea of guilty. Alright, if you will just have a seat and come up when your name is called.

Thereafter, the defendant’s name was called and the following colloquy took place between the trial judge and the defendant:

Court: Melissa Walpole, do you understand that you are giving up your right to a trial?
Defendant: Yes sir.
Court: Do you understand that you are giving up your privilege against compulsory self incrimination?
Defendant: Yes sir.
Court: Do you understand that you are giving up your right to confront your accusers?
Defendant: Yes sir.
Court: Are you doing this voluntarily? Defendant: Yes sir.
Court: The court will accept the guilty plea.

In addition to the colloquy, the defendant signed two forms: one waiving her right to be represented by an attorney, and second, a waiver of constitutional rights and a plea of guilty. No further questioning or explanation occurred between the trial judge and the defendant. There was no additional attempt to ascertain whether the defendant understood or appreciated the consequences of her actions by pleading guilty.

In State v. Varnado, 384 So.2d 440 (La.1980) the supreme court held that where the state did not introduce evidence to prove that the defendant was guilty of the underlying offense, but rather relied entirely upon the defendant’s plea of guilty and conviction as a result thereof, and then rested its case without proving any underlying facts, the uncounselled guilty plea was inadmissible and could not serve as a basis to revoke the defendant’s probation. Therefore, the issue before this court is whether the defendant made a knowing and intelligent waiver of counsel when pleading guilty to DWI, second offense.

Absent a knowing and intelligent waiver of the right to counsel, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or a felony, unless he is represented by counsel at trial. Argersinger v. Hamlin, supra. There should be some indication that the trial judge tried to assess the defendant’s literacy, competency, understanding and volition before he accepted the waiver of counsel. State v. Bell, 381 So.2d 393 (La.,1980); City of Monroe v. Wyrick, 393 So.2d 1273 (La.,1981).

An examination of the record in the present case indicates that there was no colloquy between the judge and the defendant concerning her right to counsel. The only reference to the defendant’s right to counsel is found in the court’s general instruction to all those pleading guilty in the courtroom and also in the waiver of her right to counsel forms signed by the defendant.

The Louisiana Supreme Court has repeatedly found disfavor in the use of “en masse” procedures in accepting guilty pleas. In LeBlanc v. Watson, 378 So.2d 427 (La.1979) the supreme court noted that the city court in Monroe continued to follow the procedure of collectively advising defendants of their right to counsel despite earlier disapproval of that procedure in State v. Carlisle, 315 So.2d 675 (La.,1975). In Carlisle and LeBlanc, the supreme court concluded that the trial judge’s en masse procedure could serve as a general introduction for defendants, but was not sufficient to assure that the accused in fact received instruction as to his rights, understood them, and intelligently and knowingly waived his right to counsel.

In City of Monroe v. Wyrick, supra, the supreme court again found that the trial court has the duty not only of advising of the right to counsel, but also of ascertaining whether or not the accused knowingly and intelligently waives his right to counsel. The court found that the trial judge passed that responsibility onto the defendant when it left it up to the defendant to state whether or not he understood his rights. The trial judge assumed that the rights referred to were those rights he had explained to a group collectively at the beginning of the session of court. The supreme court found that the record does not show either that the defendant’s right to counsel were explained to him or that he understood them and therefore knowingly and intelligently waived them.

The record in the present case is void of any colloquy between the trial court and the defendant concerning her right to counsel. The use of the waiver of the right to counsel form in the present case does not cure this deficiency. The form in no way reflects that the defendant understood her right to counsel. Further, the record is void of any attempt by the trial judge to personally assess the defendant’s literacy, competency, understanding, and volition before he accepted the waiver of counsel.

Therefore, we find the procedure used by the Bossier City Court to be inadequate in that there is no showing that the defendant knowing and intelligently waived her right to counsel.

In view of the fact that the state did not exercise its right to introduce evidence to prove the crime of driving while intoxicated, second offense, at the revocation hearing, and relied entirely upon the plea of guilty and conviction as a result thereof, the uncounselled guilty plea which was inadmissible cannot serve as a basis to revoke the defendant’s probation. State v. Varnado, supra.

It is therefore ordered that the judgment of the Bossier City Court revoking defendant’s probation is reversed and the rule for probation revocation is hereby dismissed.

REVERSED.

SEXTON, J., dissents and assigns written reasons.

SEXTON, Judge,

dissenting

I respectfully dissent.

In the instant case, the minutes reflect that the case was continued at the defendant’s first appearance for approximately two weeks. When the defendant returned, the minutes reflect arraignment, a not guilty plea and a trial setting. Also at that time, January 16, 1984, this college student signed a form which specifically stated that she

“... [had] been advised of my right to be represented by an attorney in every stage of the proceedings against me and further, that if I am financially unable to afford the services of an attorney, one will be appointed for me by the court.
“I freely and voluntarily waive the right to be represented by an attorney in this matter and choose to represent myself.”

The defendant signed another form with this same wording on February 27, 1984 when she changed her plea. Moreover, at the plea of guilty, the minutes and the transcript reflect that the defendant was individually Boykinized by the trial judge. I recognize that the defendant was only orally advised en masse of her right to have an appointed attorney if she was unable to afford one. However, the record reflects that the defendant was advised .of the right to counsel at least once en masse and on two separate occasions individually signed a very specific and well-written waiver form. In my view, under all of these circumstances, the record reflects that the defendant was sufficiently and adequately advised of the right to counsel, understood that advice, and specifically waived the right to be represented by counsel in this cause.

Furthermore, I find nothing in the jurisprudence prohibiting our reliance on such a record. State v. LeFleur, 391 So.2d 445 (La.1980), is arguably the strongest precedent for the majority view. But, in my view, that case can and should be distinguished. In LeFleur, the Supreme Court found that the defendant had been originally coerced into waiving counsel without ample explanation or inquiry by the court. As I appreciate it, the basis for reversal was that at arraignment at a later date, and thus without counsel, the defendant signed a waiver of Boykin rights without any explanation of those rights from the trial court. In other words, the defendant whose appearance without counsel was apparently not of his own volition was Boyk-inized only by waiver form — and it was this whole procedure which caused the reversal.

State v. Bell, 381 So.2d 393 (La.1980), cited by the majority, can and should be distinguished. That case was a four to three decision in an appeal from a burglary conviction during which the defendant had represented himself at trial. It appears that the trial court record was found to be confusing regarding the manner in which that defendant came to be unrepresented. As I appreciate it, the specific holding was that the record did not sufficiently reflect a trial court inquiry into the defendant’s ability to defend himself during a felony trial, relying on dicta in Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

Faretta specifically held that a defendant had a federal constitutional right to represent himself. The defendant had actively attempted to represent himself in that cause in a state prosecution in California. The trial judge held a hearing to inquire into the defendant’s ability to conduct his own defense, but later determined that the defendant had no federal constitutional right to conduct that defense, relying on a recent California Supreme Court opinion. In reversing and finding that the defendant had a federal constitutional right to represent himself, the United States Supreme Court stated:

“The right to defend is personal. The defendant, and not his lawyer or the state, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored _” (citation omitted, emphasis added) Faretta, supra, 95 S.Ct. at pp. 2540-2541.

The United States Supreme Court concluded that by forcing the defendant to accept state-appointed counsel against his will under the circumstances of that case, the State of California “deprived him of his constitutional right to conduct his own defense.” Faretta, supra, 95 S.Ct. at 2541.

During this discussion, the Supreme Court mentioned certain brief guidelines of inquiry for a trial court to use in determining whether a defendant can represent himself in a felony trial:

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that “he knows what he is doing and his choice is made with eyes wide open.” (citation omitted) Faretta, supra, 95 S.Ct. at p. 2541.

As I perceive it, our jurisprudential confusion in this area was begun by language in the narrow LaFleur decision which I suggest is dicta. In LaFleur, after already determining that the trial court’s action in not appointing counsel involved elements of coercion and that the defendant’s act of signing a defective rights form under those circumstances without explanation from either an attorney or the court was error, the court stated:

As in the case of a guilty plea, the record must demonstrate that the defendant was informed of the consequences of proceeding without counsel. Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). There should be some indication that the trial judge tried to assess the defendant’s literacy, competency, understanding and volition before he accepted the waiver of counsel. State v. Bell, 381 So.2d 393 (La.1980).

Thus, in addition to being dicta, the La-Fleur language relied on the close Bell case, which relied on a very minor aspect of Faretta. Moreover, Faretta and Bell both dealt with circumstances in which a defendant was representing himself at a felony trial. I suggest that Bell is only an arguable extension of Faretta but that it is a long jump from Faretta/Bell to LaFleur, and it is even a further distance to the result here reached. In sum, in my view, Faretta and Bell were overextended in dicta by LaFleur.

I believe that under the circumstances of this cause the defendant knowingly and intelligently waived counsel and that the individual Boykinization — particularly when coupled with the extremely detailed Boykin form found in this record — showed that the defendant was well-apprised of the consequences of that representation.

I would affirm.

       Note that City of Monroe v. Wyrick, 393 So.2d 1273 (La.1981), gives further credence to the Faretta/Bell/LaFleur progression, also without evaluation.


author: PER CURIAM.

text:
    Theresa Alice Mullins BEACH, Appellee, v. Johnny Ray BEACH, Appellant.
    No. 16863-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Oct. 31, 1984.
    Rankin, Yeldell, Herring & Katz by Stephen J. Katz, Bastrop, for appellee.
    Hamilton & Carroll by Orlando N. Hamilton, Jr., Oak Grove, for appellant.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   JUDGMENT GRANTING MOTION TO DISMISS

PER CURIAM.

The appellant appealed a judgment sustaining an exception of no cause of action to his petition to modify a prior custody award to his former wife.

The judgment was signed on June 22, 1984. The delay for taking an appeal commenced to run on July 2,1984. The motion and order of appeal was filed on August 8, 1984.

The appellee filed a motion to dismiss the appeal because it was untimely.

The delay for appeal of a judgment denying an application to modify custody is 30 days from the applicable date provided in LSA-C.C.P. arts. 2087(l)-(3). LSA-C.C.P. arts. 3943, 3942; Malone v. Malone, 282 So.2d 119 (La.1973). No application for new trial was here filed and the 30 days for appeal commenced to run on July 2. The appeal was taken more than 30 days from the time when the delay period commenced to run and was untimely-

The motion to dismiss the appeal is granted and the appeal is dismissed.


author: LABORDE, Judge.

text:
    Noemie MALLET, Plaintiff-Appellee, v. LOUISIANA NURSING HOMES, INC., et al., Defendants-Appellants.
    No. 83-953.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writs Denied Feb. 8, 1985.

      J. Louis Gibbens of Gibbens & Blackwell and Dennis R. Stevens, New Iberia, for defendants-appellants.
    Michael L. Schilling, Jr., Abbeville, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

This is an appeal from a workers’ compensation case. Plaintiff employee and defendants employer and insurer each contend that the trial court erred. We find no error. We affirm.

On May 10,1976, plaintiff Noemie Mallet injured her back in the course and scope of her employment with defendant Louisiana Nursing Homes, Inc. Plaintiff slipped while she was cleaning the shower area of one of Louisiana Nursing Home’s health care facilities for the aged. The primary injury apparently occurred as a result of the impact of plaintiff’s lower back on ceramic tile covered structures. Defendant employer and its compensation underwriter, defendant Zurich Insurance Company, did not contest the coverage of plaintiff’s injury under the Workers’ Compensation Act. Defendants have provided plaintiff with compensation payments and medical benefits since the date of injury. Plaintiff filed the suit from which this appeal is taken because defendants refused to pay certain medical and incidental expenses and because of an error in the calculation of compensation benefits that resulted in a substantial underpayment of compensation to plaintiff between May of 1976 and May of 1983. .

The trial judge found that compensation benefits had been miscalculated. He adjudged defendant insurer liable for past underpayments, awarding plaintiff the lump sum of the difference between the amount of compensation benefits actually paid between May of 1976 and May of 1983 and the amount that should have been paid. Defendant sought to offset this award or receive a credit for future payments because of the receipt by plaintiff of certain Social Security disability benefits during the same time period. The trial judge did not allow this offset or credit. Plaintiff claimed that defendant insurer had acted arbitrarily, capriciously, or without probable cause in underpaying plaintiffs compensation benefits and, therefore, defendant should pay attorney fees and penalties for the undercompensation. The trial judge found that defendant had not acted arbitrarily, capriciously, or without probable cause.

The trial judge found that medical bills for two periods of hospitalization in Abbe-ville which were not contested by defendants and were paid by the insurer were nevertheless paid untimely. The trial judge awarded plaintiff statutory penalties and attorney fees for these late payments.

Defendant insurer had refused to pay for two periods of hospitalization of plaintiff, including surgery, at Tulane Medical Center. The trial judge found that defendant insurer was obligated to pay the medical bills and expenses for the two periods of hospitalization at Tulane Medical Center, and he ordered defendant to pay plaintiff for these bills and expenses. The trial judge found that defendant insurer had not acted arbitrarily, capriciously, or without probable cause in refusing to pay these bills and expenses. He based this finding on conflicting medical reports and testimony as to the necessity and wisdom of the treatments at Tulane. Defendants requested that they be allowed to make payment for these bills directly to the health care providers, rather than to plaintiff. The trial judge denied this request.

The trial judge also considered plaintiffs claim for certain incidental prescription drug expenses and travel expenses. He adjudged defendant insurer liable for these expenses.

The trial judge found that defendant insurer was not liable for medical and incidental expenses incurred by plaintiff as a result of plaintiffs attempted suicide in 1981.

In this appeal, plaintiff and defendants contend that the trial judge committed several errors. Plaintiff contends:

(1) The trial judge erred by not finding that defendants acted arbitrarily, capriciously, or without probable cause in underpaying plaintiffs compensation benefits.
(2) The trial judge erred by not finding that defendants acted arbitrarily, capriciously, or without probable cause in refusing to pay for the two hospitalizations of plaintiff at Tulane Medical Center.
(3) The trial judge erred by finding that expenses incurred by plaintiff in connection with her attempted suicide were not covered under the Workers’ Compensation Act.

Defendants contend:

(1) The trial judge erred by rejecting defendants’ request to pay directly to health care providers the amounts that defendant insurer was adjudged to owe as medical benefits.
(2) The trial judge erred by not allowing defendants to offset the amount awarded to plaintiff for past under-compensation with the amount of federal disability benefits that plaintiff had received during the same time period; or, in the alternative, to receive credit for the amount of federal disability benefits that plaintiff had received.

We will separately consider the contentions of plaintiff and defendants.

UNDERPAYMENT OF COMPENSATION BENEFITS

As noted previously, defendants have never contested the coverage of plaintiff’s initial injury under the Workers’ Compensation Act. Defendants have paid most medical costs claimed by plaintiff, and have provided her with compensation benefits since the date of the injury (May 10, 1976).

However, in the suit from which this appeal is taken, plaintiff correctly claimed that the amount of defendant insurer’s payment of compensation benefits has been lower than that which it is statutorily required to pay. The cause of this underpayment can be traced to the employer’s first report of injury, which is a standard form used by insurers to calculate compensation benefits. Plaintiff completed this report for her employer on June 2,1976. Plaintiff stated that her hourly wage at the time of the accident was $2.20 per hour, that she worked seven and one-half hours per day for a daily wage of $16.'50, and that she worked five days per week. Plaintiff, however, incorrectly stated that her average weekly wage was $50.00.

The insurer calculated compensation payments from the $50.00 amount provided by plaintiff. Thus, plaintiff received $33.33, or two-thirds of $50.00, per week as compensation. See LSA-R.S. 23:1221(1) & (2)(a).

Under the law then in force, plaintiff’s weekly compensation should have been calculated from the figure derived by multiplying her hourly wage by forty hours work per week. See LSA-R.S. 23:1021(7)(a) (West 1964) repealed by La. Acts 1983, 1st Ex.Sess., No. 1, sec. 1. Thus, plaintiffs’ weekly compensation benefits should have been two-thirds of $88.00, or $58.66 per week. This error was brought to the attention of the trial judge, and he adjudged defendant liable for the past underpayment resulting from the error. However, the trial judge refused to hold defendant insurer liable for statutory penalties and attorney fees on the basis of the miscalculation; he found that defendants did not arbitrarily, capriciously, or without probable cause miscalculate and underpay compensation benefits. We agree.

At all relevant times in this case, the statutory provisions governing this issue provided for attorney fees and a 12% penalty on the difference between the amount paid or tendered and the amount actually due, in the event of undercompensation of a disabled worker by a compensation insurer, see LSA-R.S. 22:658 (West 1978), or an uninsured employer, see LSA-R.S. 23:1201.-2(A) (West 1964), if such undercompensation was arbitrary, capricious, or without probable cause. The trial judge found that defendant insurer had not undercom-pensated plaintiff in a manner punishable by the imposition of penalties and attorney fees under the relevant statutory section, in part because the error in calculation was based on a weekly earnings figure provided by plaintiff herself, and also because plaintiff accepted the payments without objection until suit was filed in May of 1983.

As plaintiff notes in her brief, even a poor mathematician would see the error in the $50.00 weekly earnings figure supplied by plaintiff upon a review of the other figures supplied by plaintiff. We note, furthermore, that under the law then in force, plaintiff’s actual weekly earnings figure, even correctly calculated, would not have provided the basis for calculating weekly benefits; rather, her hourly wage multiplied by forty would be the correct base upon which to calculate the benefits. Under the law of Louisiana, however, we may not punish the insurer simply because it did not review the other figures supplied by plaintiff, or simply because it erred in its assessment of the import of the figures. Instead, we ask whether, under the circumstances, the undercompensation caused by reliance on plaintiff’s statement of her weekly earnings shows that the insurer acted arbitrarily, capriciously, or without probable cause.

The obverse of action that is arbitrary, capricious, or without probable cause is action that is rational. See Doyle v. United General Insurance Co., 458 So.2d 152, 156 (La.App. 3d Cir.1984). Thus, put another way, if defendant insurer acted ra-tionálly, though not correctly, in miscalculating plaintiffs benefits, we must not assess penalties and attorney fees.

On the facts of this case, we find that defendant insurer acted rationally. It acted incorrectly, but this action was based on a good faith attempt to calculate compensation benefits from information supplied by plaintiff. The standard we apply is not one of negligence; we do not ask whether the insurer met a standard of reasonable care. Rather, we ask whether the insurer’s action was so devoid of reason as to constitute conduct which may be labelled “arbitrary, capricious, or without probable cause.” This standard is necessarily, and by definition, lenient. The legislatively provided sanctions of penalties and attorney fees are penal in nature, and should not be imposed if the facts of the case provide a rational basis for the error of the insurer. See, e.g., Martin v. H.B. Zachry Co., 424 So.2d 1002, 1008 (La.1982). In the present ease, the insurer erred by relying on plaintiff’s statement of her weekly earnings. The insurer, perhaps negligently, did not properly consider other figures provided by plaintiff. But reliance on the weekly earnings figure provided by plaintiff was not arbitrary, capricious or without probable cause — such figures usually provide the proper basis upon which compensation benefits should be calculated. Although it would be better practice to verify and to double-check all earnings information provided by injured employees, the conduct of the insurer in this case is not so devoid of reason as to warrant the imposition of the statutory sanctions. In workers’ compensation cases, the imposition of penalties and attorney fees promotes the sound policy of discouraging “attitudes of indifference to the injured employee’s condition.” Guillory v. U.S. Fidelity & Guar. Ins. Co., 420 So.2d 119, 124 (La.1982). This policy is not promoted- through the punishment of rational, good faith mistakes, such as the mistake committed by the insurer in miscalculating compensation benefits in this case. The insurer arguably was somewhat careless, but certainly not indifferent.

Plaintiff argues that Green v. Provencal Tie Mill, 392 So.2d 722 (La.App. 3d Cir. 1980) is factually indistinguishable from the present case on this issue, and that, just as the undercompensation in that case was held to be arbitrary, capricious, or without probable cause, so is the undercom-pensation in this case arbitrary, capricious, or without probable cause. Plaintiff misreads Green. In that case, the insurer not only miscalculated benefits, but also refused to,correct the undercompensation after the plaintiff promptly pointed out the error, and even after the plaintiff hired an attorney and filed suit. Id. at 725. In this case, plaintiff neither noticed nor complained of the error until the present suit was filed. It is obvious that the failure to correct the undercompensation resulted in the imposition of sanctions in the Green case. See also McElhaney v. Belden Corp., 376 So.2d 539, 547 (La.App. 3d Cir.1979); Campanella v. State, Dept. of Highways, 328 So.2d 798, 801 (La.App. 1st Cir.1976).

The trial judge did not err by failing to assess statutory penalties and attorney fees based on defendant insurer’s under-compensation of plaintiff.

NON-PAYMENT OF TULANE MEDICAL CENTER EXPENSES

Plaintiff had received extensive medical treatment and had been examined by numerous doctors by the time she elected to be treated and to have surgery at Tulane Medical Center. The medical evidence neither clearly supported the necessity of this surgery and treatment nor did it clearly rule out the possibility that the surgery and treatment might help plaintiff. Certain medical reports recommended that plaintiff not have further surgery, because such surgery would be more likely to aggravate her back problems than to provide her with relief. The insurer refused to pay for the surgery and other expenses incurred in the two trips to and confinement in Tulane Medical Center.

The trial judge found defendant insurer liable for the medical and incidental expenses incurred by plaintiff in connection with the two hospitalizations at Tulane Medical Center. He found that the treatment and the surgery were designed to alleviate pain, even though the benefits of the treatment and surgery were doubtful. See Gourdon v. Rockwood Ins. Co., 368 So.2d 1156, 1158 (La.App. 3d Cir.1979). The trial judge found, however, that based on the conflicting medical evidence, defendant insurer was not arbitrary, capricious, or without probable cause in refusing to pay for these hospitalizations. We agree.

A compensation insurer or an uninsured employer is not liable for penalties and attorney fees merely because its rational assessment of the facts and the law applicable to a claim for medical benefits differs from the ultimate conclusion of a trial court. Doyle v. United General Insurance Co., 458 So.2d 152, 155-156 (La.App. 3d Cir.1984). Before the statutory sanctions may be imposed, it must be determined that refusal to pay the claim is so unsupported by the relevant law, as applied to the facts of the case, that such refusal is arbitrary, capricious, or without probable cause. The conflicting medical evidence in the present case amply illustrates that defendant insurer did not deny plaintiff’s claim arbitrarily, capriciously, or without probable cause. Guidry v. Sline Industrial Painters, Inc., 418 So.2d 626, 635 (La. 1982); McDonald v. International Paper Company, 406 So.2d 582, 584 (La.1981).

COVERAGE OF MEDICAL AND INCIDENTAL COSTS INCURRED AS A RESULT OF PLAINTIFF’S ATTEMPTED SUICIDE

On April 25, 1981, plaintiff informed her husband that she was leaving for several days, and that she planned to visit her mother. Instead, plaintiff procured a room at a nearby motel. She wrote two suicide notes, consumed several bottles of pills that had been prescribed to her as pain-relievers and sleeping aids, and drank about one-half of a bottle of Jack Daniels bourbon. She was later discovered in an unconscious condition. Plaintiff was transported to a hospital and revived and treated. Defendant insurer refused to pay for expenses, medical and otherwise, incurred by plaintiff as a result of the suicide attempt. The trial judge found that defendant insurer was not liable for these expenses. We agree.

Plaintiff’s basic argument is that the suicide attempt was caused by some form of mental disease that was caused by her prolonged use of prescriptive depressant narcotics that was necessary to alleviate the pain that was caused by the back injury that arose out of and in the course of her work. Thus, plaintiff’s argument continues, if defendant insurer must pay medical and incidental expenses- more closely related to the original injury, then so must the insurer pay medical and incidental expenses resulting from the suicide attempt that logically followed the original injury.

Guidance on this issue is provided by the decision of this court in Soileau v. Travelers Insurance Company, 198 So.2d 543 (La.App. 3d Cir.), writ denied, 250 La. 978, 200 So.2d 665 (1967). In Soileau, we studied the jurisprudence of other jurisdictions and concluded that

“where death is caused by suicide, death benefits may not be recovered under the Louisiana Workmen’s Compensation Act unless it is established that the suicidal act was the product of some form of insanity, mental disease, mental derangement or psychosis, which resulted from the injury. Otherwise, a suicide is attributable to the decedent’s own volitional act which constitutes an “independent intervening cause.” It is not sufficient for recovery to show that the suicide resulted merely from the fact that the decedent had become discouraged, depressed, despondent or melancholy as the result of the accident or injury.”

Id. at 546. Although Soileau dealt with a “successful” suicide, we see no reason not to apply its persuasive reasoning to claims for medical and incidental benefits by one who lives through the suicide attempt.

In this case, the trial judge accurately noted the distinction drawn by Soileau between serious mental disease on the one hand, and depression or melancholia, on the other hand. He found, as a matter of fact, based on all the relevant lay and medical testimony presented to him, that although' plaintiff may have attempted suicide as a result of despondency caused by her injury, the suicide attempt was not the product of mental disease or psychosis caused by her injury or the drugs used to treat her injury. A factual determination of this nature will not be disturbed on appeal unless it is clearly wrong, in light of all the evidence. Harris v. State Through Huey P. Long Memorial Hospital, 378 So.2d 383, 389 (La.1979); Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978); Roussel v. Colonial Sugars Company, 318 So.2d 37, 39 (La.1975). The trial judge was not clearly wrong in his factual determination that plaintiffs suicide attempt was not the result of mental disease caused by her injury or her prescription drug use.

We have disposed of plaintiffs contentions on appeal. We now turn to the two claims of error presented by defendants.

PAYMENT OP MEDICAL BENEFITS DIRECTLY TO HEALTH CARE PROVIDERS

Defendants present a strong and meritorious argument as to why they should be allowed to pay the health care providers, rather than plaintiff, for any medical benefits they are adjudged to owe in this case. Defendants first point out that, in this case, some (if not all) of the late payments of medical bills resulted from delays attributable to plaintiffs interposal between defendant insurer and the health care providers. Second, defendants contend that payment to plaintiff could result in money in her pocket in addition to weekly compensation benefits, should plaintiff satisfy her medical bills from other, non-personal sources (e.g., Medicare). Third, defendants contend that much unnecessary litigation has occurred because of payment to the injured employee, rather than to the health care provider, of medical benefits due under the Workers’ Compensation Act or other medical insurance schemes. See, e.g., Our Lady of Lake Med. Ctr. v. Cropper, 401 So.2d 403 (La.App. 1st Cir.), writ denied, 404 So.2d 279 (La.1981). Defendants assert that the obligation to provide medical benefits under the Workers’ Compensation Act and the obligation to provide disability compensation benefits under the Act are separable. Defendants contend that while compensation benefits necessarily must be paid to the injured worker, the fulfillment of the obligation to pay medical benefits does not turn on whose hand first receives the money, but instead turns on whether the insurer actually pays for the necessary medical expenses of the worker.

Clearly, the dual obligations of the compensation insurer or the uninsured employer to provide compensation benefits and to provide medical benefits are separable and distinct. E.g., Butts v. Insurance Co. of North America, 352 So.2d 745, 748 (La.App. 3d Cir.1977), writ denied, 354 So.2d 206 (La.1978). Further, the relevant section of the Workers’ Compensation Act simply provides the obligation to “furnish all necessary medical, surgical, and hospital services, [etc.].” LSA-R.S. 23:1203 (emphasis added). The Act specifies payment to no particular party; it merely requires the employer to furnish these services at no cost to the worker. Whether payments are made to the health care providers, the injured employee who then pays the health care providers, or through some other agreement between concerned parties is irrelevant: the law only requires that the injured worker be treated at no personal cost.

Whether the worker or the health care providers are to be paid by the compensation insurer or uninsured employer is a matter governed by the agreement between the parties. We note that most compensation insurance contracts used in Louisiana specify payment to the employee. Further, as a matter of course, most payments are made in drafts to the injured employee. We find no legal objection to a different arrangement, but, on the record before us, there is no indication that the insurance contract covering plaintiff provided for medical benefits payments to one other than the injured employee. Therefore, we affirm the decision of the trial judge.

If defendants could show that plaintiff will be unjustly enriched by medical benefits payments to her, our decision would be different. Our decision would then be based on the public law of this state which prohibits unjust enrichment, and the private contract law between the parties would present no obstacle to our decision. However, under the facts of this case, defendants show nothing in excess of the common-sense proposition that direct payment to health care providers would be more convenient and simple for all parties involved. These matters are left to the private law of the insurance contract.

OFFSET OF OR CREDIT FOR FEDERAL DISABILITY BENEFITS AGAINST AWARD FOR UNDERCOMPENSATION

From May of 1976 to May of 1983 (and apparently since that time), plaintiff received monthly Social Security disability benefits. As discussed above, defendant insurer underpaid plaintiffs compensation benefits during that time period. The trial judge in this case adjudged defendant liable for the difference between compensation paid and compensation legally due. He refused to allow an offset or credit for federal benefits, finding that the right of offset had been created after plaintiffs injury and was therefore inapplicable to the case.

Defendants argue that the trial judge erred, and that the insurer should be able to offset against the undercompensation award or receive credit for amounts that plaintiff received as federal disability benefits. Defendants. contend that legislation passed in 1978 allows this offset or credit, to wit:

“The benefits provided for in this Sub-part for injuries producing permanent total disability shall be reduced when the person receiving benefits under this Chapter is entitled to and receiving benefits under 42 U.S.C. Chapter 7, Subchap-ter II, entitled Federal Old Age, Survivors, and Disability Insurance Benefits, on the basis of the wages and self-employment income of an individual entitled to and receiving benefits under 42 U.S.C. Section 423; provided that this reduction shall be made only to the extent that the amount of the combined federal and worker’s compensation benefits would otherwise cause or result in a reduction of the benefits payable under the Federal Old Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. sec. 424a, and in no event will the benefits provided in this Subpart, together with those provided under the federal law, exceed those that would have been payable had the benefits provided under the federal law been subject to reduction under 42 U.S.C. sec. 424a. However, there shall be no reduction in benefits provided under this Section for the cost-of-living increases granted under the federal law after the date of the employee’s injury.”

LSA-R.S. 23:1225(A).

Defendants have not shown the amount (if any) of the retroactively applied reduction entailed by section 1225, should we find the section applicable to this case. Defendants merely claim that the total amount of federal disability benefits received by plaintiff during the period in question should be offset against the award for past undercompensation. The reduction of benefits computation set forth in section 1225 does not operate so simply; for example, defendants have not shown that payment in full of both workers’ compensation disability benefits and federal disability benefits would, in combination, subject plaintiff to “a reduction of the benefits payable under the Federal Old Age, Survivors, and Disability Insurance Act pursuant to 42 U.S.C. sec. 424a_” Section 1225 aids employers and insurers by reducing the amount of disability compensation benefits they are obligated to pay in an appropriate case. To utilize this statute, the present defendants must first show that this is an appropriate case (i.e., that a reduction is required), and second, defendants must set forth the amount of offset or reduction entailed by the terms of the statute for this case. Defendants have met neither requirement. See Achord v. H.E. Weise Const. Co., 422 So.2d 1248, 1253 (La.App. 1st Cir.1982) (defendant failed to meet its “burden of proof” under section 1225 “with regard to the amount of Social Security benefits [received by plaintiff] or to the amount of reduction in compensation benefits which might be required”).

Because defendants have not met their burden of proof under the terms of section 1225, it is unnecessary for us to decide whether section 1225 could be retroactively applied to this case. The trial court did not err by disallowing the offset or credit sought by defendants.

DECREE

There is no error. Based on the above reasons, the judgment of the trial court is affirmed. Plaintiff Noemie Mallet answered defendants’ appeal by claiming several additional grounds for error and seeking reversal or modification of those portions of the judgment below unfavorable to plaintiff. Therefore, we tax the costs of this appeal one-half to plaintiff and one-half to defendants.

AFFIRMED.

DOMENGEAUX, J., concurs in the result.

      . The record reveals that plaintiff did not work five days every week. She worked a schedule of four days on, then two days off. R. at 61. Therefore, over a six-week span, plaintiff actually worked five days during four weeks and four days during two weeks, or an average of four and two-thirds days per week.

      . In 1983, the Louisiana Legislature amended R.S. 23:1201.2 to cover both insurers and uninsured employers and to prohibit the use of R.S. 22:658 in cases involving non-payment or underpayment of workers’ compensation claims. The 1983 amendment does not provide for penalties, only for attorney fees. See La. Acts 1983, 1st Ex.Sess., No. 1, sec. 1 (effective July 1, 1983). For an explanation of the dichotomy under the old law, see Gauthier v. Employers National Insurance Co., 316 So.2d 769, 775 (La.App. 1st Cir.1975).

      . In her brief, plaintiff contends that the error of the insurer was not made in good faith; she contends that the error, in light of other information available to the insurer, "is tantamount to willful miscalculation." The trial judge apparently disagreed with plaintiff on this issue. A finding of good faith, or a lack thereof, is an issue of fact. We will not substitute our judgment on factual issues for the judgment of the trial court unless the factual findings of the trial court are clearly wrong.


author: DOMENGEAUX, Judge. PER CURIAM.

text:
    Jerry Glenn PHILLIPS, Plaintiff-Appellant, v. Carolyn Jane Wagoner PHILLIPS, Defendant-Appellee.
    No. 83-962.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Opinion on Correction Nov. 15, 1984.
    Rehearing Denied Dec. 13, 1984.

      J.P. Mauffray, Jr., Jena, for plaintiff-appellant-appellee.
    Griffing & Johnson, Kathy J. Johnson, Jonesville, for defendant-appellee-appellant.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

The plaintiff, Jerry Glenn Phillips, has perfected this appeal from the judgment of the trial court which granted the defendant, Carolyn Wagoner Phillips, a judgment of separation based on the grounds of abandonment. The trial court’s judgment also found the defendant-wife to be free from fault.

The plaintiff and defendant were married on June 4, 1963. Of this union two children were born; Brenda Janelle Phillips and Brandon Lane Phillips.

Both parties admitted that they last lived together on October 12, 1982. Plaintiff filed suit on October 25, 1982, seeking a separation based upon cruel treatment. He conceded that he did leave the matrimonial domicile on October 12, 1982, but it was his contention that defendant’s cruel treatment was justification for his withdrawal.

On November 16, 1982, defendant filed a reconventional demand seeking a separation on the grounds of abandonment and cruel treatment. Following a trial on the merits, a judgment was rendered in favor of the defendant-wife based upon the plaintiff’s fault.

Mr. and Mrs. Phillips were awarded joint custody of the minor child, Brandon Phillips; Mrs. Phillips was awarded alimony “pendente lite”, in the sum of $200.00 per month. Mr. Phillips was also ordered to pay the sum of $250.00 per month as child support and to secure, maintain and pay premiums for hospitalization and insurance coverage on the minor, Brandon Phillips, through his employer’s furnished group policy. The judgment also ordered Mr. Phillips to permit Mrs. Phillips and the minor child to reside in the community home pending a partition of the community, and recognized attorney’s fees incurred by the parties relative to the separation as debts of the community.

The issues presented for consideration on appeal are:

(1) Whether the trial court was correct in finding Mrs. Phillips free from fault and awarding her a separation on the grounds of abandonment, and

(2) Whether the trial court was correct in making its assessments of alimony and child support.

The laws applicable to the present situation are Civil Code Articles 138(5) and 143. La.C.C. Art. 138(5) reads in part as follows:

“Separation from bed and board may be claimed reciprocally for the following causes:
s£ * * * * *
5. Of the abandonment of the husband by his wife or the wife by her husband.
* * * ⅜ )f

La.C.C. Art. 143 provides:

“Separation grounded on abandonment by one of the parties can be admitted only in the case when he or she has withdrawn himself or herself from the common dwelling, without a lawful cause, has constantly refused to return to live with the other, and when such refusal is made to appear in the manner hereafter directed; provided, however, that separation grounded on abandonment may be the object of a reconven-tional demand in any suit for separation from bed and board.”

Our jurisprudence has construed these Articles to mean that there must be a withdrawal without lawful cause and there must also be exhibited on the part of the spouse who left, a constant refusal to return. Sciortino v. Sciortino, 188 So.2d 224 (La.App. 4th Cir.1966), writ refused, 190 So.2d 237 (La.1966).

In the present case the husband having admitted: (1) he withdrew from the matrimonial domicile; and (2) his repeated refusal to return, there remains for our consideration only the question of whether he left with lawful cause.

We deem it unnecessary to relate the precise details of the time, place, and circumstances of the unpleasant disputes and differences between the parties as disclosed in the record. It suffices to narrate enough generalities to support our affirmation of the trial court’s findings. Mrs. Phillips and the parties’ daughter, Brenda Phillips testified that Mrs. Phillips’ alleged actions in harassment were merely actions taken by her to save her marriage. On the other hand, Mr. Phillips contends that Mrs. Phillips accused him of marital infidelity and locked him out of the house. Mrs. Phillips stated that she did not lock her husband out of the house and that she simply took the keys when she left to go to work so that Mr. Phillips would not take his things and leave her before there was an opportunity to discuss the marital problems. The record supports the findings of the trial court that while these parties were not on the best of terms the above actions did not justify Mr. Phillips’ departure.

Mr. Phillips further alleges that certain post-separation conduct on the part of Mrs. Phillips warrants a finding of fault on her part. The record establishes that Mrs. Phillips followed her husband, she engaged in argumentative debate with him, and had a confrontational encounter with a lady she believed responsible for her marriage problems.

The trial court found that this action engaged in by Mrs. Phillips to restore her marital situation, although misguided and unsuccessful, was not sufficient to constitute a finding of fault on her part. We cannot say that this finding was manifestly erroneous and thereby affirm the decision of the trial court.

Lastly, Mrs. Phillips contends the alimony and child support awards are improper. However, as she has not answered the plaintiff’s appeal nor perfected her own appeal we need not address that issue. See Louisiana Code of Civil Procedure Article 2133. Nevertheless we find the awards to have been proper and we will not disturb them.

For the above and foregoing reasons the judgment of the trial court is affirmed. All costs of this appeal are assessed against the appellant.

AFFIRMED.

OPINION ON CORRECTION

PER CURIAM.

On our own motion we proceed to correct a statement contained in our recently rendered opinion. Therein we erroneously stated that Mrs. Phillips had not answered the plaintiff’s appeal, nor perfected her own appeal. She did in fact appeal and her appeal pertained to the alimony and child support awards.

We found in our opinion, as shown therein, that the awards were nevertheless proper, and we would not disturb them. We reiterate that position and reaffirm our opinion.


author: KNOLL, Judge.

text:
    Alfred JACKSON, Plaintiff-Appellee, v. Joann JACKSON, Defendant-Appellant.
    No. 83-964.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.

      James E. Beal, Natchitoches, for defendant-appellant.
    Whitehead & McCoy, Charles R. Whitehead, Jr., Natchitoches, for plaintiff-appel-lee.
    Before FORET, DOUCET and KNOLL, JJ.
   KNOLL, Judge.

Joann Jackson appeals the dismissal of her rule for an increase in child support, contending the trial court erred in not finding a change of circumstances that would merit an increase. We reverse and grant an increase in child support, finding the record supports a sufficient change of circumstances that warrants an increase.

Child support for the minor child, Alfred Joseph Jackson, was originally set in 1977 in the judgment of separation at $10 per week. At that time the child was two years of age. In the divorce proceedings in 1978, Joann Jackson asked for an increase in child support but was denied. The judgment of divorce is silent as to any amount of child support, but the record is clear that Alfred Jackson, the father, was paying child support pursuant to the judgment of separation. Lewis v. Lewis, 404 So.2d 1230 (La.1981), established that a divorce decree does not terminate the obligation of child support. In accord see Clooney v. Clooney, 446 So.2d 981 (La.App. 3rd Cir.1984). Therefore, that portion of the judgment of separation pertaining to child support is still in effect.

In 1983, the mother filed another rule for an increase in child support and was again denied by the trial court. It is the denial of this rule that is before us now.

It is well settled that a party seeking a modification of child support bears the burden of showing a change of circumstances. Trice v. Trice, 428 So.2d 1265 (La.App. 3rd Cir.1983). The trial court is vested with much discretion in fixing the amount of child support, and such an award will not be disturbed on review unless there has been a clear abuse of this discretion or manifest error in its factual appreciations. Trice, supra. The amount of child support is calculated to the child’s needs as well as the circumstances of those who are obligated to pay it. Johnson v. Johnson, 432 So.2d 1140 (La.App. 3rd Cir.1983).

We find the change of circumstances in the present case to be very significant. When child support was originally set in 1977 at $10 per week, the child was two years of age. The child is now approximately nine years of age and attending school. The cost of living is considerably higher now than it was in 1977. With the child attending school, he has additional needs and expenses that were not present in 1977.

The mother is in poor financial circumstances and cannot financially support, more than she has, the increasing needs of the child. She is presently unemployed and draws $55 per week unemployment compensation. When she was working, her net pay was approximately $72 per week.

Mr. Jackson contends that his circumstances have not changed to such an extent that an increase in child support is warranted. We disagree. He argues that when child support was originally fixed, Mrs. Jackson was unemployed and that her expenses have now increased primarily to loan installment obligations. Alfred Jackson’s overall financial circumstances are stable and have improved. He is employed at Northwestern State University and grosses $10,181.20 a year. Since child support was originally set, he has received a slight raise. He has remarried and his present wife is gainfully employed and nets approximately $105 per week. The earnings and income of Alfred Jackson’s present wife should have been considered in determining child support since her earnings and income constitute a community asset. Marcus v. Burnett, 282 So.2d 122 (La.1973). They are buying a home. They have two vehicles; his vehicle is paid for and they are making monthly payments on his wife’s vehicle. His wife’s eleven year old son lives with them and Alfred helps contribute to his stepson’s support.

We do not view Joann Jackson’s loan installment obligations adversely to her position. There is no evidence that these loans were not made out of necessity. She had the burden of providing day-to-day care and supervision of the child, and providing food, clothing, shelter and an education for him, in addition to supporting herself, all on her meager income and $10 a week child support.

We recognize that Mr. Jackson has a limited income, but he has proven to be a prudent financial administrator. Joann Jackson’s earning ability has not been as good as her former husband’s, and the record clearly shows that she is unable to meet the growing demands of their minor child. Mr. Jackson's primary obligation is to support, maintain and educate his child; his obligation to support his legitimate child may not be prejudiced by his voluntary assumption of an obligation to support another child for whom he is not legally responsible. Goodrich v. Goodrich, 421 So.2d 962 (La.App. 3rd Cir.1982), writ denied, 427 So.2d 1209 (La.1983).

Accordingly, we find the learned trial judge committed manifest error in not finding a change of circumstances and failing to increase child support to a more reasonable amount. We therefore increase child support to $35 per week. We note that Mr. Jackson maintains his son on his hospitalization insurance plan and has been paying the medical expenses incurred by his son. The minor child at one time had recurrent gross hematuria secondary to sickle cell trait. The record reflects this condition has cleared up and has not troubled the child since 1978. The medical report suggests the child could have some congenital or voiding abnormality. In view of the child’s medical history, Mr. Jackson is to maintain his son on his hospitalization plan and pay all reasonable medical expenses incurred by the child.

For the foregoing reasons, the judgment of the trial court is amended and rendered as follows: IT IS ORDERED, ADJUDGED AND DECREED that Alfred Jackson pay unto Joann Jackson child support for the support of the minor child, Alfred Joseph Jackson, the sum of $35 per week, and further, Alfred Jackson is to maintain the minor child under his hospitalization insurance plan, and to pay all reasonable medical expenses incurred by the minor child.

Costs of this appeal are assessed to Alfred Jackson.

AMENDED AND AS AMENDED AFFIRMED.

FORET, J., concurs in the amended judgment, but is of the opinion that the increase in child support is excessive.


author: GUIDRY, Judge. STOKER, Judge,

text:
    Myron DUCOTE, Plaintiff-Appellee, v. J.A. JONES CONSTRUCTION COMPANY and Aetna Life & Casualty Insurance Company, Defendants-Appellants.
    No. 83-965.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Writ Granted Feb. 15, 1985.

      Gold, Little, Simon, Weems & Bruser, Sam Poole and Eugene Sues, Alexandria, for defendants-appellants.
    John T. Bennett, Marksville, for plaintiff-appellee.
    Before GUIDRY, STOKER and YEL-YERTON, JJ.
   GUIDRY, Judge.

The plaintiff, Myron Ducote, brought this suit under La.R.S. 23:1361 against his employer, J.A. Jones Construction Company, and its insurer, Aetna Life and Casualty Insurance Company, claiming that he was fired because he filed a workmen’s compensation claim. The trial court rendered judgment in favor of the plaintiff and awarded him $24,585.60 (wages for one year) and $2,500.00 attorney’s fees as well as expert witness fees of $150.00. Defendants appeal the judgment urging error was committed by the trial court in finding that Ducote’s employment was terminated for filing a workmen’s compensation claim and for taxing expert witness fees of $150.00 against defendant.

FACTS

On March 30, 1983, Myron Ducote was working as a carpenter for J.A. Jones Construction Company at the Lock and Dam Project on the Red River in Catahoula Parish. At approximately 9:00 a.m. that morning, Ducote, while lifting oak boards, experienced a sudden sharp pain in the lower portion of his stomach. Ducote informed his foreman, Terrell Laehney, that he was not feeling good and wished to go home. According to Ducote, he indicated to Lach-ney that something was wrong with his stomach. Ducote was given permission to go home.

At approximately 8:30 p.m. that same evening, Ducote telephoned Laehney and stated that he was going to the doctor the next day. Ducote informed Laehney that he was injured on the job, at which time Laehney indicated that Ducote should speak to Walter McDaniel, the project safety supervisor.

According to Ducote’s testimony, he spoke to McDaniel the following day and was told that the accident would be investigated. Ducote inquired into whether or not his medical bills would be taken care of by the company and apparently got no reply. Ducote testified further that on the next day, he again met with McDaniel and was informed that if the medical bills were turned over to the insurance company, Du-cote’s employment would be terminated.

McDaniel testified that Ducote did contact him, although he could not recall the exact date. According to McDaniel, Du-cote stated that he had sustained an injury while lifting boards at work. McDaniel asked Ducote if he had reported the injury to his foreman to which Ducote answered “no” stating that he was ashamed to report it. McDaniel noted that Ducote was fired for his failure to report his on-the-job injury after its occurrence, in accordance with established safety regulations. The termination notice given Ducote indicated failure to follow safety regulations, i.e., failure to immediately report a job injury, as the reason for discharge.

Ducote’s employment was terminated on April 8, 1983. His injury was diagnosed as a hernia and he received workmen’s compensation benefits until June 7, 1983, at which time he was released from the care of his physician. Ducote filed suit against J.A. Jones Construction Company on May 18, 1983.

UNLAWFUL DISCRIMINATION

Defendants contend the trial court erred in finding that plaintiff was discharged for filing a workmen’s compensation claim. Plaintiff brought this suit under La.R.S. 23:1361, which provides in pertinent part:

B. No person shall discharge an employee from employment because of said employee having asserted a claim for benefits under the provisions of this Chapter or under the law of any state or of the United States. Nothing in this Chapter shall prohibit an employer from discharging an employee who because of injury can no longer perform the duties of his employment.
C. Any person who has been denied employment or discharged from employment in violation of the provisions of this Section shall be entitled to recover from the employer or prospective employer who has violated the provisions of this Section a civil penalty which shall be the equivalent of the amount the employee would have earned but for the discrimination based upon the starting salary of the position sought or the earnings of the employee at the time of the discharge, as the case may be, but not more than one year’s earnings, together with a reasonable attorney’s fee.”

In Wiley v. Missouri Pacific R. Co., 430 So.2d 1016 (La.App. 3rd Cir.1982), writ denied, 431 So.2d 1055 (La.1983), this court, in addressing the applicability of La.R.S. 23:1361 to claims brought under the F.E. L.A., stated:

“The principal purpose of R.S. 23:1361 is remedial, rather than penal. Remedial and penal statutes are distinguishable in terms of the nature of the evil sought to be remedied by the legislation; it is penal if it undertakes to redress to the public and remedial if it undertakes to remedy a wrong to the individual. 3 Sutherland, Statutory Construction, § 60.03, at 33 (4th ed. Sands, 1974); State v. Boniface, 369 So.2d 115 (La.1979). R.S. 23:1361 was designed to protect individuals from discrimination by virtue of their assertion of legal right.
Inasmuch as R.S. 23:1361 is a remedial statute, it is to be liberally construed to suppress the evil and to advance the remedy. Starks v. Orleans Motors, Inc., 372 F.Supp. 928 (E.D.La.1974). What is a liberal construction is ordinarily one which makes the statutory rule or principle apply in more situations than would be the case under a strict construction. State v. Boniface, supra. In the present case the evil to be deterred is unjust dismissals. The employee must be .able to exercise his right in an unfettered fashion without being subjected to reprisal. The remedy is intended to place the discriminated-against employee in the same position he would have been but for the employer’s retaliatory conduct, thereby affording the worker an opportunity to organize his affairs and enter the work force anew....”

The trial judge, in his written reasons for judgment, noted:

“It is the finding of this court that the plaintiff was deliberately fired by defendant because he filed a workmen’s compensation claim. This court will not permit a company’s policy to fire a worker for filing a workmen’s compensation claim under the guise of terminating him because he failed to report an injury timely. It should be noted that plaintiff did in fact report the injury immediately on the job and later that night from his home by telephone.” _

The record does not support the trial judge’s finding of fact that the plaintiff reported his injury immediately on the job site. Ducote told his foreman that he was not feeling good and had pain in his stomach. It was not until later that evening that Ducote informed his foreman he had injured himself on the job.

At trial, Ducote acknowledged that when he began working for J.A. Jones Construction he was instructed to report any injury sustained on the job immediately to the foreman. This requirement was reiterated to employees every Monday morning at the safety meetings. Plaintiff’s own testimony makes clear that he was immediately aware that the onset of pain which he experienced in his stomach was caused by an on-the-job injury. In this connection, he testified as follows:

“Q. But there was no doubt in your mind when you lifted that board, that lifting the board had something to do with the pain, the sudden pain that you experienced in your groin?
A. Yes sir.
Q. You didn’t have that pain before you lifted that board, did you?
.A. No sir.
Q. So you knew there was some connection between the lifting of the board and the pain in your stomach?
A. Right.
Q. It came on right when you lifted the board?
A. Right.”

It is evident from Ducote’s own testimony that J.A. Jones Construction Company was adamant about employees’ reporting on-the-job injuries promptly as part of an overall effort toward a safe working environment. Prompt reporting of injuries was seen as a means of lowering the chances of further injuries by calling attention to potentially dangerous conditions.

J.A. Jones Construction Company introduced evidence that at least two other employees were fired for failing to promptly report an injury taking place on the job.

Ducote failed to introduce any evidence that Jones Construction did not strictly and uniformly enforce their rule that failure to follow standard safety procedures would result in termination of employment.

Concerning Ducote’s testimony that McDaniel stated that if a workmen’s compensation claim were filed Ducote would be fired, it would not appear that this statement necessarily evinces an intention on the part of Jones Construction to violate the provisions of La.R.S. 23:1361. As noted above, there was no evidence presented to indicate that Jones Construction did not strictly and uniformly apply their safety rules. Consequently, Mr. McDaniel’s statement can be taken as merely an affirmation of the result which was certain to follow under, that strict policy, since most injuries on the job will give rise to a workmen’s compensation claim and by Mr. Du-cote seeking such compensation, he admitted suffering an injury on the job which was not reported promptly.

Referring back to the trial judge’s reasons for judgment, the judge states that a company will not be permitted to fire a worker for filing a workmen’s compensation claim under the guise of terminating him because he failed to report an injury timely. As correctly stated by appellant in brief, the company’s strict safety policies and their enforcement thereof are not matters for the trial court to be reviewing. The court was only called upon to decide the limited question of whether La.R.S. 23:1361 was violated. It is quite clear, from the evidence presented at trial, that Jones Construction is very safety conscious. Ducote testified that he was told on many occasions to report injuries immediately and that failure to do so would result in dismissal, yet the evidence supports the conclusion that Ducote failed to report the job-related injury promptly. Albeit, one might conclude that the termination of plaintiff’s employment under the circumstances of the instant case was harsh, it does not necessarily follow that plaintiff’s termination from employment was in violation of La.R.S. 23:1361.

Although our court in Wiley, supra, indicated that La.R.S. 23:1361 was to be given a liberal construction, in this case we conclude that the trial judge was clearly wrong in finding that Mr. Ducote carried his burden of proving by a preponderance of the evidence that he was fired because he filed a workmen’s compensation claim.

EXPERT WITNESS FEE

The judgment of the trial court includes an award of $150.00 as an expert witness fee for Dr. Richard Michel. Defendant contends the trial court erred in granting this award. Dr. Michel was the plaintiffs treating physician; he was not deposed nor did he testify at trial.

Expert witnesses are entitled only to reasonable compensation for their appearance in court and for preparatory work done, and the fees allowed should be commensurate with those allowed in similar cases. Town of Krotz Springs v. Weinstein, 401 So.2d 664 (La.App. 3rd Cir.1981).

As noted above, Dr. Michel did not testify at trial nor was he deposed. Therefore, it appears the trial court was in error in awarding $150.00 in expert witness fees for the services of Dr. Michel.

For these reasons, the judgment of the trial court is reversed and set aside and it is now ordered, adjudged and decreed that there be judgment in favor of defendants, J.A. Jones Construction Company and Aet-na Life and Casualty Insurance Company, and against plaintiff, Myron Ducote, dismissing plaintiffs suit with prejudice. All costs of these proceedings at the trial level and on appeal are assessed to plaintiff, Myron Ducote.

REVERSED AND RENDERED.

STOKER, J., concurs and assigns written reasons.

STOKER, Judge,

concurring.

I fully concur in the majority view. The trial court was clearly wrong in concluding that the plaintiff in this case immediately reported his injury. As the writer of the majority opinion notes, the result of this case may be harsh. However, it must be remembered that it is not a suit for worker’s compensation. Plaintiff received compensation benefits. This is a suit for statutory damages grounded on the allegation that plaintiff was fired merely because he made a worker’s compensation claim. Damages for termination based on such a cause are authorized. LSA-R.S. 23:1361.

Inasmuch as the defendant employer was within its rights, on the basis of the objective evidence, in terminating plaintiff’s employment, plaintiff cannot prevail. Even having such justification for termination, it is conceivable that a particular employer might avail itself of such justification where its real motive was retaliation. It is also conceivable that under such circumstances, if the plaintiff could prove that retaliation was the only motive for termination, the statutory damages could be awarded. The trouble with plaintiff’s case here is that Mr. Myron Ducote has not shown that retaliation was a motive, much less the sole motive.

The action of Mr. McDaniel, the project safety supervisor advising Mr. Ducote that he would be discharged if he turned in his medical bills may be quite plausibly regarded as a simple reminder to Mr. Ducote that, since he had not reported his injury as required, the rules would call for his discharge. Plaintiff, on the other hand, regards it as a threat of discharge. Unfortunately for plaintiff, he has not proved that he was given a threat rather than advice.


author: DOMENGEAUX, Judge.

text:
    SUCCESSION OF Johnnie J. O’CON. John W. LUSTER, Administrator, Plaintiff-Appellee, v. Irma O’Con SANCHES, Defendant-Appellant.
    No. 83-990.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.
    Charles Seaman; Harrington & Harrington, Eric Harrington, Natchitoches, for defendant-appellant.
    Luster & Conine, John Luster, Natchi-toches, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

This is a case arising out of the administration of the succession of Johnnie J. O’Con, who died on February 1, 1983. Pursuant to the succession proceedings, a motion was filed by the administrator requesting a declaratory judgment declaring Irma O’Con Sanches to be an illegitimate child of the decedent, and therefore not entitled to share in the succession.

On June 27, 1983, a hearing was held and counsel for the Succession and Mrs. Sanch-es stipulated as follows:

1. That Irma O’Con Sanches was in fact the illegitimate child of Johnnie J. O’Con;
2. That there was no evidence of any formal acknowledgment by the decedent and no evidence of any birth certificate;
3. That in order for Mrs. Sanches to share in the estate of Mr. O’Con she would be required to comply with the requisites of La.C.C. Art. 209;
4. That Mrs. Sanches had not filed a proceeding to prove filiation, and was therefore unable to comply with the provisions of La.C.C. Art. 209 relative to the time within which filiation proceedings must be instituted.

Judgment was rendered by the district judge who found that Irma O’Con Sanches was an illegitimate child of Johnnie J. O’Con and was not entitled to share in the proceeds of his succession.

The sole issue appellant raises on appeal is the constitutionality of La.C.C. Art. 209. She alleges in her brief that La.C.C. Art. 209 which requires that proceedings for filiation “be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs” is an unconstitutional violation of the equal protection clause of the Fourteenth Amendment of the United States Constitution, and Article I, Section 3 of the 1974 Louisiana Constitution.

A careful and thorough review of the record of this case reveals that during the course of the proceedings in the trial court the appellant failed to raise the issue of the constitutionality of Article 209 in any of the pleadings. There is a long established requirement that a constitutional challenge must be affirmatively pleaded and the grounds particularized at the trial court level before the issue can be raised on appeal. Johnson v. Welsh, 334 So.2d 395 (La.1976); and Gauthreaux v. Gauthreaux, 377 So.2d 567 (La.App. 3rd Cir.1979). Hence, we are prohibited from considering this sole constitutional issue.

For the above and foregoing reasons the judgment of the district court is affirmed at appellant’s costs.

AFFIRMED.

      . "Art. 209. Proof of filiation
      A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
      B. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this article.
      C. The proceeding required by this article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely instituted, the child may not thereafter establish his filiation.
      D. The right to bring this proceeding is heritable.”


text:
    Wiley JOHNSTON, Plaintiff-Appellee, v. Forrest Wade SPEARS, Defendant-Appellant.
    No. 83-1001.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.

      Douglas L. Hebert, Jr., Kinder, for defendant-appellant.
    Kenneth R. Rush, Oakdale, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   LABORDE, Judge.

This is an action to declare a purported conveyance of land a simulation. Wiley Johnston, plaintiff, claims that the conveyance of immovable property from his adoptive mother and stepfather to their natural son, defendant Forrest Wade Smith, was a sham transaction. The trial judge found for plaintiff. Defendant appeals. We affirm.

FACTS AND PRIOR PROCEEDINGS

Wiley Johnston, plaintiff herein, was born in Allen Parish on November 12,1916, to Mr. and Mrs. Phillip Smith. Wiley’s mother died before Wiley attained the age of two. On April 30, 1919, Wiley was adopted by Walter Johnston and Johnston’s wife, Mary Johnston. Walter and Mary Johnston produced no natural children.

On October 24, 1925, Walter and Mary Johnston purchased a 140 acre tract in Allen Parish from J. Mayo Courville. Walter died on March 13, 1927, and Mary subsequently married Jessie Spears, who had children from a prior marriage.

The marriage of Mary and Jessie Spears produced one child, Forrest Wade Spears, defendant herein, who was born on March 24, 1930.

On October 18, 1948, Mary Johnston Spears filed a petition for partition by lici-tation of the 140 acre tract that she and her deceased husband had purchased, which was then held by her and Wiley Johnston. The property was sold at a sheriff’s sale on December 13, 1948, to C.W. Wofford. Mary and Wiley split the proceeds of the sale. Two days later, Wofford sold the property back to Mary, reserving timber rights.

After Mary reacquired the property from Wofford, she sold several small portions of the land. These sales reduced the size of the tract in question to 126 acres. Then, on August 20, 1951, Mary and her husband Jessie Spears executed an act of sale purporting to convey the tract to their son Forrest Wade Spears, for $400 and other good and valuable consideration. Mary and Jessie reserved the usufruct of the land. Defendant Forrest Wade Spears was in the armed services, stationed away from home, at that time. A correction deed was filed on September 15, 1952, by Jessie and Mary Spears. This deed confirmed and ratified the original conveyance, but added that Jessie and Mary reserved timber and mineral rights. The amendment also declared that Forrest Wade Spears had performed past services for his parents valued at $2000.

Jessie and Mary continued to reside upon the tract in question until several years ago. In their old age, failing health resulted in their placement in a nursing home. Jessie predeceased Mary, and Mary died shortly thereafter in 1982. sion has not been opened. Mary’s succes-

Forrest Wade Spears apparently has lived with his parents on the land deeded to him at various times since 1952. He has lived elsewhere at other times.

In the trial court, Wiley Johnston attacked the validity of the conveyance to Forrest Wade Spears by parol evidence. He testified, and presented witnesses who testified, that the conveyance to Forrest Wade Spears was a sham transaction. Irma Smith, who lived on one of the parts of the original 140 acre tract sold by Mary Spears before the disputed conveyance, testified that Forrest Wade Spears had not performed services for his parents, and that, to her knowledge, he had never paid for the land. She testified that Mary Spears treated the land as her land, and that Mary and Jessie supported themselves from Jessie’s pension and timber sales and other income derived from the property.

Irma Smith’s son, Ronald, corroborated the testimony of his mother. He testified that Mary Spears told him that she was “fixing the sale” so that Forrest Wade Spears, her only natural child, would receive the property after her death. Ronald Smith testified that Mary Spears did not want her step-children or any other person except Forrest Wade Spears to have the tract in question.

Defendant Forrest Wade Spears presented testimony to show that he had performed services for his parents. Marvin Baggett, who had owned a sawmill at which Forrest Wade Spears had been employed while a minor, testified that defendant’s wages were used by Jessie and Mary Spears to support themselves.

Pat Pique, a co-worker of defendant at the sawmill, testified that Forrest Wade Spears used his earnings to buy groceries for the family. He also testified that defendant’s father would occasionally pick up defendant’s pay check.

Forrest Wade Spears introduced into evidence a list purporting to be a record kept by his mother of payments by defendant on the tract in question. Defendant also introduced into evidence money order receipt stubs, claiming that these stubs, allegedly signed by his mother, illustrate his payment of at least part of the purchase price.

The trial judge found that the sale was a sham transaction. He found that no consideration of either cash or services had been rendered by defendant. He did not believe that the signature on the money order receipt stubs matched the signature of Mary Spears on other documents in evidence. The trial judge found that Mary and Jessie Spears may have used money earned by defendant during his minority, but that the “groceries” purchased with such money were consumed by defendant, too, and, further, that defendant was cared for by his parents. The trial judge found that Mary and Jessie Spears had supported themselves and had performed services for themselves. He found that defendant had done nothing for his parents beyond that which most children do for their parents. He further found no connection between cash paid or services rendered by defendant (if any) and the purported sale. The trial judge found that the conveyance of the tract in question was a simulated sale. Therefore, the property never left the patrimony of Mary (and Jessie) Spears.

ISSUE

Defendant contends that the trial judge erred in ruling that the sale was a simulation. Defendant contends that the transaction was a valid sale, with payment of stated consideration; or, in the alternative, that the purported transfer constituted a remunerative donation.

DISCUSSION

Civil Code article 2239 provides, in part: “[FJorced heirs shall have the same right to annul absolutely and by parol evidence the simulated contracts of those from whom they inherit, and shall not be restricted to the [legitime].”

Under this article, the effect is not to return conveyed or donated property to a succession, but to declare that such property, in reality, never left the patrimony of the decedent. This article and its effect should not be confused with Civil Code article 2444, under which a sale of immovable property by parents to children for less than one-fourth of the property’s fair market value at the time of sale may be attacked by forced heirs. Under article 2444, the transfer from decedent’s patrimony is admitted, but the sale is attacked as, in reality, a donation of property subject to collation. Similarly, Civil Code article 1248 provides that a sale to a child at a low price may be attacked by forced heirs. Again, there is no denial of an actual transference of property, but the advantage bestowed by a sale at a low price is treated as a donation subject to collation.

The trial judge in this ease found that the sale was simulated. Therefore, no transfer actually occurred. He based his finding on a careful weighing of the evidence, both documentary and testimonial. Clearly, he believed the testimony that supported plaintiff. He also found no connection between the documentary evidence purporting to show at least partial payment of the purchase price and the sale transaction. Moreover, he doubted the validity of some of defendant’s documentary evidence.

In Succession of Guin v. McDaniel, 344 So.2d 1149 (La.App. 3d Cir.1977), this court considered a similar conclusion by a trial judge faced with similar conflicting evidence. Therein, we found that the weighing of evidence by a trial judge in this type of case essentially yields a factual determination as to the reality and validity of a transaction. Id. at 1151. We held that such a determination will not be disturbed on appeal unless it is clearly wrong, in light of all the evidence. Id. at 1151. In the case we address today, we also uphold the determination of the trial judge. The record, as a whole, supports a finding that the purported conveyance of the tract in question was, in fact, a simulation and a sham transaction, supported by no consideration, either in cash or in services. See also Arceneaux v. Domingue, 365 So.2d 1330, 1333 (La.1978).

We further note that defendant’s parents lived out the remainder of their lives on the tract in question, using it and treating it as if they fully owned it. Defendant, when between jobs or faced with necessitous circumstances, would occasionally reside in a trailer-home on the property. This could not constitute delivery or transference of the property. We attach no special significance to defendant’s intermittent residence on his parents’ property; it is not at all unusual for parents to aid their children in this fashion, even children long past the age of majority.

Because of our determination that the sale by Mary and Jessie Spears was a simulation, and that the land never left their patrimony, we need not address the arguments by plaintiff and defendant concerning disguised donations, remunerative donations, etc. Plaintiff’s further contention that the tract in question is the separate property of Mary Spears may not properly be considered in this proceeding.

The purported sale of land by Mary and Jessie Spears to Forrest Wade Spears was a simulation. No actual transfer occurred. Based on the above reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Donald J. O’ROURKE, et al., Plaintiffs-Appellees, v. Mrs. Pauline Jean CORMIER, et al., Defendants-Appellants.
    No. 83-1009.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Rehearing Denied Dec. 13, 1984.

      Etta Kay Hearn, Baton Rouge, Fred Smith, Lafayette, for defendants-appellants.
    Ronald J. Gossen, Lafayette, for plaintiff s-appellees.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

On March 19, 1971, plaintiffs-appellees, Donald J. O’Rourke and Gerald M. Gossen, entered into two written contracts with Ernest A. Cormier. Litigation developed as a result of both contracts.

The first contract was the sale of a 31.75 acre tract of land by Mr. Cormier to Messrs. O’Rourke and Gossen. The second contract, which is the subject of this appeal, was an option contract for a five year period whereby Messrs. O’Rourke and Gos-sen obtained the right to purchase a four acre tract of land from Mr. Cormier.

THE OPTION TO PURCHASE CONTRACT

Ernest A. Cormier died on February 13, 1973, almost two years after confection of the aforesaid option to purchase contract. On February 27, 1976, O’Rourke and Gos-sen notified the Cormier heirs of their desire to exercise the option to purchase the four acres of land. Receiving no response, they filed suit against the Cormiers on March 28, 1979, seeking specific performance on the option contract. Defendants filed a general denial.

Subsequently, the Cormiers, with leave of court, filed a pleading styled “Amended and Supplemental Petition”. They sought relief by praying that the option contract be annulled or rescinded, and alleged several grounds in support thereof, to-wit: That no consideration was given for the option contract; that there was a lack of capacity on the part of Mr. Cormier; that there was also a lack of consent on the part of Mr. Cormier in that he was fraudulently induced to contract; and finally that there was a failure to secure Mr. Cormier’s wife’s signature on the option contract.

Theo plaintiffs, O’Rourke and Gossen, filed a motion for summary judgment. Hearings were ultimately held and the trial court granted a summary judgment in favor of plaintiffs. Among the various reasons the trial court assigned for its ruling was that the capacity, consent, and consideration arguments propounded as defenses to the option contract had prescribed.

A thorough review of the record reveals that no peremptory exception of prescription was filed on behalf of any party in this appealed suit. The plea of prescription is a peremptory exception and must be specifically pleaded and the plea cannot be supplied by the court. La.C.C.P. Art. 927; Banks v. Rattler, 426 So.2d 362 (La.App. 2nd Cir.1983); Marshall v. Marshall, 390 So.2d 1365 (La.App. 4th Cir.1980); and Gallo v. Sorci, 221 So.2d 570 (La.App. 4th Cir.1969). As there was no peremptory exception of prescription filed, and as the trial court is precluded from supplying the exception of prescription, we find that the trial court was in error in granting summary judgment based upon liberative prescription.

As footnote 1 indicates, Messrs. O’Rourke and Gossen filed a peremptory exception of prescription in the other case which was consolidated with this suit for specific performance. Although the two cases were consolidated, that exception of prescription in the non-appealed case has no bearing upon this appealed specific performance suit. Consolidation of actions pursuant to La.C.C.P. Art. 1561 is a procedural convenience designed to avoid multiplicity of actions and does not cause the case to lose its status as a procedural entity. Reed v. Pittman, 257 La. 389, 242 So.2d 554 (1970); and Howard v. Hercules—Gallion Company, 417 So.2d 508 (La.App. 1st Cir.1982). Procedural or substantive rights peculiar to one case are not rendered applicable to the companion suit by the mere fact of consolidation. Williams v. Scheinuk, 358 So.2d 340 (La.App. 4th Cir.1978); and Howard v. Hercules—Gallion Company, supra.

For the above and foregoing reasons, the judgment of the trial court which granted summary judgment in favor of Messrs. O’Rourke and Gossen is reversed, and this case is remanded to the trial court for further proceedings. Appellees are not precluded from filing proper prescriptive or other peremptory exceptions on remand.

Costs to await final determination of this suit.

REVERSED AND REMANDED.

      . Concerning the first contract, i.e., the sale by Cormier to O’Rourke and Gossen of the 31.75 acre tract of land, the heirs of Mr. Cormier (who died in 1973) sued Messrs. O’Rourke and Gossen seeking to have the sale rescinded or annulled. O’Rourke and Gossen filed a peremptory exception of prescription in that suit. Subsequently, the district court consolidated the rescisión suit with the suit for specific perform-anee on the option contract which was filed by O'Rourke and Gossen and which, as is shown in the body of this opinion, is the subject of this appeal. In the rescisión suit by the Cormier heirs, O’Rourke and Gossen filed a motion for summary judgment which was granted by the district court, declaring the sale valid. That decision has not been appealed by the Cormier heirs.