text:
    STATE of Louisiana v. Ronnie WILLIAMS. In re Ronnie WILLIAMS.
    No. K 1983.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 21, 1984.
    Elizabeth W. Cole, Supervising Atty., Mark C. Hadden, Student Atty., New Orleans, for relator.
    Harry F. Connick, Dist. Atty., New Orleans, for respondent.
   Applying for writs of certiorari, prohibition, mandamus and for a stay order directed to: Honorable James F. McKay, Judge, Criminal District Court, Parish of Orleans, Section “H”, No. 298-835.

Before AUGUSTINE, GULOTTA and LOBRANO, JJ.

WRIT DENIED.

There is no error in the ruling complained of. See State v. Thomas, 406 So.2d 1325 (La.1981).


source: Caselaw Access Project

author: REDMANN, Chief Judge. PER CURIAM.

license: Public Domain

text:
    Armand J. DUVIO, Sr. v. CONTINENTAL CASUALTY COMPANY et al.
    No. CA 1365.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 6, 1984.
    Rehearing Denied July 24, 1984.

      Stephen P. Bruno, Frank S. Bruno, Bruno & Bruno, New Orleans, for plaintiff.
    Robert E. Kerrigan, Jr., David P. Gontar, Deutsch, Kerrigan & Stiles, New Orleans, for defendants.
    Before REDMANN, C.J., and KLEES and BYRNES, JJ.
   REDMANN, Chief Judge.

Continental Casualty Company, sued as a tort liability insurer, intervened as the workers’ compensation insurer of plaintiff’s employer. The trial judge treated Continental as two parties, one the defendant and one (the intervenor) aligned with plaintiff. Under C.C.P. 1764, he added three peremptory juror challenges to each “side” and gave to Continental three of the plaintiff-side challenges and all nine of the defendant-side challenges. Thus Continental got twelve to plaintiff’s six.

That was error. One cannot be aligned against oneself on the side of a third party. Continental-as-intervenor was not on the same side with plaintiff against Continental-as-defendant. Continental is not a split personality; its interest at all times is to defeat plaintiff’s action completely (by winning as defendant) or to reduce plaintiff’s recovery (by winning as intervenor).

The error was not harmless, notwithstanding the unanimous verdict and the need for only nine to agree. Continental in fact exercised nine challenges, three more than it should. Those extra peremptory challenges may have excluded three jurors who might have all voted against the verdict and persuaded others to do so as well.

We therefore remand for trial by a properly constituted jury.

We do affirm the dismissal of the corporate president by directed verdict. The burden is on plaintiff to prove his case and he did not prove the president’s “personal (as contrasted with technical or vicarious) fault” other than “simply because of his general administrative responsibility,” Canter v. Koehring Co., 283 So.2d 716, 721 (La.1973). The jury would have been free to disbelieve the president, but disbelief in him does not constitute evidence to the contrary of his testimony. There was no evidence from which the jury could reasonably have inferred that the corporate president breached any personal duty owed to plaintiff.

Directed verdict affirmed; otherwise remanded for trial by proper jury.

On Application for Rehearing

PER CURIAM.

Continental points out for the first time on application for rehearing that of the nine peremptory challenges it exercised two were against alternate jurors and no alternate actually served. Our facts are therefore that only one juror was improperly excluded from the 12 who actually served. Our law remains the same. The one excluded juror might have voted against the verdict and persuaded others to do so as well.

Rehearing is refused.


author: REDMANN, Chief Judge.

text:
    ACTION TOWING AND RENTAL et al. v. U-HAUL INTERNATIONAL et al.
    No. CA 2039.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 1, 1984.
    Rehearing Denied July 24, 1984.
    Writ Denied Oct. 26, 1984.

      Russell A. Solomon, Jacques F. Bezou, New Orleans, for plaintiffs.
    Howard E. Sinor, Jr., Charles W. Lane, III, Richard J. Tyler, Jones, Walker, Wae-chter, Poitevent, Carrére & Denegre, New Orleans, for defendants.
    Before REDMANN, C.J., and AUGUSTINE and WILLIAMS, JJ.
   REDMANN, Chief Judge.

A final federal court judgment in an antitrust action precludes a later state court proceeding under the state’s antitrust statute based on the same alleged wrong. Woods Exploration & Pro. Co. v. Aluminum Co. of America, 438 F.2d 1286 (5 Cir.1971), cert. denied 404 U.S. 1047, 92 S.Ct. 701, 30 L.Ed.2d 736 (1972).

Reversed; action dismissed at plaintiffs’ cost.


author: LOBRANO, Judge.

text:
    Lillian Ruth BATEMAN v. Paul F. LARSON.
    No. CA-1459.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied July 24, 1984.

      Ellis Jay Pailet, New Orleans, for appel-lee.
    Anthony L. Glorioso, New Orleans, for appellant.
    Before KLEES, LOBRANO and CIAC-CIO, JJ.
   LOBRANO, Judge.

Lillian Ruth Bateman Larson, appellant, appeals the decision of the lower court which granted a divorce based on living separate and apart for more than one year, and which held both parties at fault. Appellant contends she was not guilty of legal fault under La.C.C. Art. 160 and thus should not be precluded from collecting permanent alimony from her husband Paul F. Larson, appellee.

Both parties originally requested a divorce from each other based upon being separated for a period in excess of one year as specified by La.R.S. 9:301. Appellant alleged that appellee abandoned her, and that she was without fault. Appellee alleged that he was free from fault in the dissolution of their marriage. On May 12, 1983 a trial was held and judgment was signed on May 13, 1983 wherein a divorce was granted to Dr. Larson based upon the separation for a period in excess of one year. The judgment further declared that both Dr. Larson and his wife were mutually at fault. The judgment ordered all pen-dente lite alimony payments stopped upon signing of the judgment and denied permanent alimony to appellant.

The issues raised by appellant are as follows. First, she argues that the trial court is in error in finding her at fault, and second, alimony pendente lite is not to cease until the divorce decree is final.

In attempting to prove fault on the part of his wife, Dr. Larson alleged that she was guilty of refusing to engage in sexual intercourse. Additionally he claimed she was not supportive of his career and that she publicly critized him.

Article 141 of the Civil Code authorizes a separation on the basis of mutual fault. However, that statute does not create a new ground for separation. The fault contemplated by that article is the same fault which is enumerated under Civil Code Article 138. Dixon v. Dixon, supra.

Louisiana jurisprudence is clear that the refusal of a spouse to engage in sexual intercourse does constitute cruel treatment. However, the party alleging the refusal of sexual intercourse has the burden to show that, there was a persistent and unjustified refusal to engage in such intercourse. Von Beckman v. Von Beckman, 386 So.2d 910 (La.1980); Phillpott v. Phillpott, 285 So.2d 570 (La.App. 4th Cir.1973).

The only evidence introduced by Dr. Larson to prove this claim was his own testimony. The sum total of that testimony consisted of the following:

“Q. Did your wife refuse to have sex with you regularly in the year 1980?
A. Yes.”

Appellant denied this claim and further testified that even after they agreed to separate, but prior to the actual separation, they engaged in sexual intercourse.

We find the uncorroborated testimony of Dr. Larson insufficient to prove by a preponderance the claim of fault on the part of his wife because she refused to perform the marital duties of sexual intercourse.

Dr. Larson attempted to prove that his wife was critical of him. However, on direct examination he could not recall what the criticism was or when it occurred. His own witness testified that he had been with Dr. & Mrs. Larson on five or six occasions and that on one of these occasions he recalled that Mrs. Larson was critical of her husband. However, this witness also said the incident was so insignificant that he could not recall the context of the criticism and had no specific recollection of when it occurred. Appellant called one witness who was a mutual friend of the Larsons and she testified she never heard any criticism by appellant of her husband.

In nearly every marriage there are times when one spouse is critical of the other. The test as to whether this criticism constitutes cruel treatment or public defamation must necessarily depend on whether its severity, frequency,- and nature is of such an extent as to render living together unsupportable. Denbo v. Denbo, 345 So.2d 1257 (La.App. 1st Cir.1977).

Although much discretion is vested in the trial court with regard to factual findings in the area of domestic relations, we must conclude that in the instant case there was insufficient evidence to prove that Mrs. Larson was at fault under Art. 138 of the La.Civil Code. The judgment of the trial court finding fault on appellant’s part was therefore clearly wrong and must be reversed.

The trial court terminated Mrs. Larson’s alimony pendente lite of $800.00 per month upon the signing of the judgment of divorce. Alimony pendente lite awarded by judgment on a rule in a separation proceedings continues to accrue pending the final disposition of any appeal from that proceeding or divorce decree subsequently rendered in connection therewith. Taddonio v. Taddonio, 422 So.2d 1282 (La. App. 4th Cir.1982); writs granted 431 So.2d 412 (La.1983); Viser v. Viser, 243 La. 706, 146 So.2d 409 (1962); Morris v. Morris, 426 So.2d 318 (La.App. 2nd Cir.1983). Therefore alimony pendente lite must be reinstated retroactively and is to continue until such time as this judgment of divorce is final.

Accordingly, it is ordered, adjudged and decreed that appellant is entitled to alimony pendente lite in the amount of $800.00 per month until this divorce judgment is final. Further, the ruling of the lower court is reversed in so far as it found appellant to be at fault, and denied her claim for permanent alimony. The case is remanded for a determination of permanent alimony.

REVERSED AND REMANDED.

      . The question of Dr. Larson’s fault has not been appealed by him and is therefore not before the Court. See, Dixon v. Dixon, 357 So.2d 856 (La.App. 4th Cir.1978).


text:
    STATE of Louisiana v. Danny W. STEWART.
    No. KA-0960.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied July 24, 1984.
    Writ Denied Sept. 20, 1984.

      Harry F. Connick, Dist. Atty., John H. Craft, Susan Scott Hunt, Asst. Dist. Attys., New Orleans; for appellee.
    William W. Miles, William J. O’Hara, III, Lemann, O’Hara & Miles, New Orleans, for appellant.
    Before KLEES, CIACCIO and LOBRA-NO, JJ.
   LOBRANO, Judge.

Appellant, Danny W. Stewart, was charged by bill of information with armed robbery and conspiracy to distribute marijuana in violation of La.R.S. 14:64- and R.S. 40:979.

Appellant pled not guilty to both counts. On February 18, 1983, a twelve member jury found appellant not guilty on the charge of armed robbery but guilty on the charge of conspiracy to distribute marijuana. On February 24, 1983, the trial court denied appellant’s Motion in Arrest of Judgment and sentenced him to serve five years at hard labor. Later, the state filed a multiple bill against appellant charging him as a multiple offender. On May 20, 1983, his February 24th sentence was set aside and he was re-sentenced as a multiple offender to serve ten years at hard labor. Appellant has appealed his conviction and sentence asserting eight specifications of error, as follows:

1) The court committed reversible error in denying appellant the information requested in his Bill of Particulars pertaining to the identity of all persons arrested on the date of the alleged crime;
2) The court committed reversible error in allowing the introduction into evidence of State’s Exhibit S-2, when the state had failed to notify appellant of the existence of these items despite a pretrial request made by appellant;
3) The court committed reversible error in allowing testimony of an alleged previous drug transaction involving the appellant, and further, in failing to grant appellant’s Motion for a Mistrial based on this testimony;
4) The court committed reversible error in allowing improper and highly prejudicial rebuttal testimony by the state;
5) The court committed reversible error in denying appellant’s Motion to Quash the Bill of Information which Motion was based on the State’s failure to allege or charge appellant with a specific overt act done in furtherance of the alleged conspiracy;
6) The court committed reversible error in denying appellant’s post-trial motions for relief from the jury’s verdict;
7) The verdict of the jury returned herein was contrary to the law and evidence;
8) The court committed reversible error in sentencing appellant as a multiple offender in that there was no showing that the prior pleas, upon which the sentence was based, were of such a nature as to be the basis for the imposition of an additional sentence.

FACTS:

On June 11, 1982, Officers Adams, Mari-no, Goodey, Lee, Vappie and Johnson of the Special Operations Division of the New Orleans Police Department were assigned to an undercover operation. The objective was to purchase drugs from suspected distributors.

On information received from a confidential informant, the officers devised a plan whereby Officer Adams would attempt to purchase seventy-five pounds of marijuana from a man named Danny who lived at 3313 St. Claude Avenue. At approximately 5:00 p.m. on the date in question, the officers set up surveillance and Officer Adams knocked on the door at that address. Adams testified that appellant, Danny Stewart, admitted him to the house. They discussed the proposed purchase and Stewart’s cut of the deal. Stewart then told Adams he would have to make a telephone call to set up the deal and both men proceeded to a nearby store to use the telephone. While Stewart spoke on one phone, Adams used another phone to contact the officers on surveillance, to inform them that he would raise the trunk lid on his car to signal them to move in when the deal was concluded. Both men then returned to Stewart’s house. Stewart informed Adams that David Anderson would bring the drugs to the house. Soon afterward, Anderson arrived and the men discussed the proposed drug deal. Anderson then left. Stewart indicated that he had to use the phone again, and both returned to the store. Adams sat on the neutral ground outside while Stewart made his call. Both men then returned to the front of the house. Shortly thereafter, Anderson returned and the trio re-entered Stewart’s house.

Once inside, Anderson drew a gun, ordered Adams to stand against a wall, threw Stewart a rope to tie up Adams and removed Adams’ car keys from his pocket. When Adams tried to free himself, Stewart told him to keep his hands together while threatening Adams with the gun. He (Anderson) then struck Adams with the gun, and then put it to Adams’ head, threatened to kill him and ordered him to “beg” for his life. He then picked up a pillow case and tried to put it over Adams’ head. When Adams informed Anderson that others would be coming soon, Anderson told Adams he would kill Mm later and then left. Adams freed himself from the ropes and attempted to pursue Anderson. Stewart blocked his path. A scuffle ensued, Adams broke free and ran outside in time to see Anderson drive off in his (Adams’) car.

Officers Marino and Goodey testified that soon after Adams and Stewart returned from making the first phone call, they observed a blue car with two people inside. The car circled the block and stopped. They observed Anderson leave the car and enter Stewart’s house, remain inside a short while, and then exit and drive away in the blue car. Adams and Stewart then went to make a second phone call. When they returned to the house, they sat outside talking until the blue car appeared again, this time containing three people. The car parked around the corner, and Anderson exited the car and joined Adams and Stewart. The three men re-entered the house.

Later, the officers observed Anderson run out of the house and jump into Adams’ car. He pulled off and was joined by the blue car.' Officers Marino and Goodey gave chase and eventually captured him when he wrecked Adams’ car.

Meanwhile, Officers Johnson and Vappie stopped the blue car and detained the occupants. No marijuana was found in the blue car. The officers then returned to Stewart’s house.

During the confusion, Stewart slipped away from the scene. He was arrested five months later by Officers Marino and Goodey pursuant to a tip from a confidential informant.

Adams testified that approximately one hour and fifteen minutes elapsed between the time he first entered Stewart’s house and the time he was bound with the rope. Also present were Stewart’s girlfriend and an older man in possession of drugs. During this time, Stewart smoked several “joints”. Anderson seemed to be under the influence of drugs.

Adams stated that Stewart never touched Anderson’s gun while Adams was threatened, and although he made arrangements to go to Stewart’s house to buy the drugs, he never made the arrangements directly with Stewart.

Anderson testified that Stewart did not telephone him on June 11, 1982 but that he, (Anderson), merely happened to stop at Stewart’s house on that day. He stated he was under the influence of preludin when he entered Stewart’s house and that only he and Adams discussed the proposed drug deal. He stated that Adams wanted as much marijuana as he could supply because Stewart was unable to supply the quantity Adams wanted. Needing money for legal problems, he testified that he planned to set up the deal and then rob Adams. He maintained that he had no intention of supplying Adams with marijuana. He told Adams he had to obtain the drugs from another source and then left. When he returned, Adams was outside the house. He informed him that he could not complete the deal. Adams insisted he wanted the marijuana and Anderson left again. Ten minutes later he returned. Adams and Stewart were now inside the house. He entered only intending to rob Adams. He stated that when he pointed his gun at Adams, Stewart lunged at him. He then held the gun on both men, threw Stewart a rope and ordered Stewart to tie up Adams. Anderson then fled the house. He got into Adams’ car, looked down and noticed Adams’ police radio on the seat. When he turned the corner, he noticed the other officers chasing him.

Anderson later identified the two men in the blue car as “Frog” and “Alvin”. He maintained he was beaten by the police and forced to sign a statement implicating Stewart in his plan to rob Adams.

Marilyn Metzler, Stewart’s girlfriend, testified that she lived with Stewart at the time of the offense. She was present part of the time that Adams was at the house but was at the grocery store at the time of the alleged robbery. While walking back from the store, she saw Anderson exit the house, get into a red car and drive off. Then she saw Adams and Stewart come out of the house. She denied there were drugs in the house. She said she moved out of the house that night and did not see Stewart for a long time after.

Appellant, Danny Stewart, testified that he met Adams about a month prior to the incident at which time Adams tried to buy drugs from him. He stated that on the day in question, Anderson stopped by his house late in the morning and Adams arrived much later, asking to buy the drugs. Stewart maintained that although he may have smoked a few “joints”, there were no other drugs in the house. He stated that Adams left on his own and returned before Anderson re-appeared. He denied calling Anderson. He contended that while all three of them were outside, he told them that he did not want them to conduct the “deal” in his house, but they went inside anyway. Once inside, Anderson put his gun in Adams’ face and ordered both of them to lie on the floor. Anderson then took Adams’ car keys and ordered him to tie up Stewart, changed his mind and ordered Stewart to tie up Adams. Then Anderson left.

Stewart further testified that he tied Adams’ hands loosely which allowed him to free himself quickly. He said that by the time he got outside, Anderson was already gone. Adams left to use the telephone. Then he saw Anderson drive past the house with the officers in pursuit. Adams joined the chase. It was then that Stewart left the scene because he feared he would be charged in Anderson’s robbery of Adams. He subsequently stayed with his brother in Pearl River, Mississippi and later returned to New Orleans. He testified he had no prior drug convictions nor convictions for crimes involving drugs but had two burglary convictions in Mississippi.

On rebuttal, Officers Goodey and Marino denied beating Anderson or seeing anyone else beat him. They stated Anderson was advised of his rights both in English and Spanish and maintained that the written statement taken from Anderson was verbatim.

Officer Adams testified he discussed the drug deal with Stewart before June 11th and that Stewart never refused to sell him drugs. He also refuted Stewart’s claim that he was threatened by Anderson.

ASSIGNMENT OF ERROR 1

Appellant contends that he was denied his constitutional right to call and examine witnesses due to the failure of the state to identify the two men who were in the blue car with Anderson, arrested and later identified by Anderson as “Frog” and “Alvin”.

In his Bill of Particulars, appellant requested the identity of any person arrested and/or charged in connection with the June 11th incident. The trial judge sustained the State’s refusal to supply this information. Appellant maintains that these witnesses could have corroborated his and Anderson’s claims that there was no agreement between them to distribute marijuana to Adams. Appellant argues that these witnesses were involved in the conspiracy to rob Adams and that under State v. Rogers, 375 So.2d 1304 (La.1979), the state must disclose in its answers to the Bill of Particulars the identities of any unindicted co-conspirators.

Assuming arguendo that the men were unindicted co-conspirators in the plan to rob Adams, appellant’s argument still falls. He would have no right to learn their identities via an application for bill of particulars as per Rogers, supra, because he was never charged with conspiracy to rob Adams.

A defendant does not have a right to the names and addresses of witnesses. However, the trial court has considerable discretion in determining whether such information should be supplied. See, State v. Walters, 408 So.2d 1337 (La.1982), and the cases cited therein. Even less support exists for allowing the defense access to the identity of persons not called as witnesses, nor named as co-conspirators. This would be especially so where the actions are only hypothetically related to the transaction with which a defendant may not use an application for bill of particulars as a “fishing expedition” to discover details of the state’s case. State v. Vaccaro, 411 So.2d 415 (La.1982); State v. Marcal, 388 So.2d 656 (La.1980); U.S.App. dismissed 451 U.S. 977, 101 S.Ct. 2300, 68 L.Ed.2d 834, reh. den. 452 U.S. 973, 101 S.Ct. 3128, 69 L.Ed.2d 984; State v. Boyd, 359 So.2d 931 (La.1978). This assignment of error is without merit.

ASSIGNMENT OF ERROR 3

Appellant contends that the trial court erred by denying his request for a mistrial due to repeated references to his prior criminal activity. The testimony in question is that of Officers Marino and Adams.

Officer Marino testified that as a result of information received from a' confidential informant, the police set up surveillance in the 3300 block of St. Claude Avenue with the intention of purchasing seventy-five pounds of marijuana from a man named Danny.

In response to the prosecutor’s question of what happened on June 11, 1982, Adams responded:

“After meeting the defendant on several occasions prior to that date, discussing the transaction that was supposed to take place on that particular date, bickering about the price of the drugs, the quantity that was to be delivered to me, where it was to be delivered ...”

Article 720 of the Code of Criminal Procedure, which requires the state to notify the defendant of intent to put on evidence of other crimes to show intent or system, specifically excludes matters which are considered res gestae. Officer Adams’ testimony clearly refers to conversations he had with appellant leading up to, and concerning the June 11, 1982 transaction which formed the basis of the conspiracy charge. As such, we are of the opinion that it forms part of the res gestae of the crime charged. It should also be noted that appellant in his direct testimony, also mentioned his prior meeting with Adams.

The statement of Officer Marino certainly cannot be construed as evidence of other crimes. He merely identified the nature and source of the information which prompted the surveillance and investigation of appellant.

This assignment lacks merit.

ASSIGNMENT OF ERROR 5

Appellant contends that the trial court erred in denying his Motion to Quash the Bill of Information for its failure to specify an overt act committed by him in furtherance of the conspiracy.

“The basic function of the specific indictment form is to inform the accused of the crime charged, reserving a recital of the details of the offense for the bill of particulars.” State v. Hamilton, 334 So.2d 383 (La.1976). Reviewing the bill of information we note that it recites that “Danny Stewart ... on the eleventh day of June [1982] ... did willfully and unlawfully conspire with David Anderson to distribute marijuana.”' As written, the bill of information satisfies codal requirements for sufficiently charging a person with conspiracy. C.Cr.Pr. Arts. 464 and 465.

This assignment of error is without merit.

ASSIGNMENTS OF ERROR NOS. 6 and 7

Appellant attacks his conviction on the grounds of insufficiency of the evidence presented at trial. Specifically, he contends the state failed to prove the existence of a conspiracy to distribute marijuana because there was no evidence that Anderson joined in the conspiracy, nor that appellant did an overt act in furtherance of the conspiracy. Appellant argues that a conspiracy cannot exist if there is “no common objective” among the alleged conspirators.

When assessing the sufficiency of evidence to support a conviction, the reviewing court must determine whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

Appellant was charged with conspiracy to distribute marijuana in violation of R.S. 40:966, 40:979. Title 40 of the Revised Statutes does not define conspiracy. R.S. 14:26 defines criminal conspiracy as:

“A. Criminal conspiracy is the agreement of combination of two or more persons for the specific purpose of committing any crime; provided that an agreement or combination to commit a crime shall not amount to a criminal conspiracy unless, in addition to such agreement or combination, one or more of such parties does an act in furtherance of the object of the agreement or combination.”

The “overt act” need not be an illegal act, but merely an act done in furtherance of the conspiracy. State v. Richards, supra fn. 4 at 1317; State v. Rittiner, 341 So.2d 307, 317 (La.1976).

Officer Adams testified that appellant told him he would have to make a phone call to set up a deal, and the two men then left the house to use the telephone at a nearby store. Upon returning to appellant’s house, appellant told Adams that Anderson would supply the drugs and that Adams could trust Anderson. These actions by appellant were sufficient to constitute the requisite “overt act” in furtherance of the conspiracy to distribute marijuana.

Appellant further contends that because Anderson never intended to sell Adams drugs but only to rob him, there could be no conspiracy. The elements of conspiracy can be proved either by direct or circumstantial evidence. State v. Brown, 398 So.2d 1381 (La.1981). The existence of a conspiracy between appellant and Anderson could reasonably be inferred by the jury from the fact that, following appellant’s phone call, Anderson appeared and discussed the planned transaction. Notwithstanding appellant’s denial that he contacted Anderson, or Anderson’s denial that he was contacted by appellant, the jury was entitled to believe, based on the phone call and appearance of Anderson shortly thereafter, that contact between them took place and that as a result of this contact Anderson appeared at appellant’s home to arrange the drug sale. Thus, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime of conspiracy to distribute marijuana proved beyond a reasonable doubt. These assignments of error are without merit.

ASSIGNMENT OF ERROR 8

Appellant contends that the trial court erred by adjudging him to be a multiple offender, thereby doubling his sentence as per R.S. 15:529.1.

At his May 20, 1983, multiple bill hearing, the state introduced certified copies of three Mississippi bills of indictment charging appellant with various burglaries. The state also introduced certified copies of appellant’s Boykin forms and the court’s judgment of August 25, 1977 on one burglary conviction and a minute entry of September 28, 1973 noting appellant, with counsel present, pled guilty of another burglary.

Appellant’s attorney testified that although he requested copies of the transcripts of these guilty pleas, none existed nor could any be reproduced.

Appellant testified that he was the same Danny Stewart who pled guilty to these charges, admitted he was represented by counsel but contended that he did not remember being advised of any of his Boy- kin rights in any ease except his right to trial by jury.

The Louisiana Supreme Court in State v. Cressy, 440 So.2d 141 (La.1983) recently reiterated its holding in State v. Holden, 375 So.2d 1372 (La.1979), that when using a non-Louisiana guilty plea in an enhancement proceeding, the state is required to prove only that the defendant pled guilty with representation of counsel. The defendant then has the burden of proving that he did not waive his Boykin rights.

Here, the state established that appellant was represented by counsel when he pled guilty to both charges. Appellant could not remember being advised of most of his Boykin rights, but could not produce proof to substantiate his claims. Thus, he failed to carry the burden of proof that he was not properly advised of his Boykin rights. The trial court did not err in adjudging him to be a • multiple offender. This assignment of error is without merit.

ERRORS PATENT

We have reviewed the record as to errors patent and have found none. La.C.Cr.Pr. Art. 920(2).

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

AFFIRMED.

      . R.S. 14:64 provides:
      A. Armed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.

      . R.S. 40:979 provides in part:
      A. Except as otherwise provided herein, any person who attempts or conspires to commit any offense denounded and or made unlawful by the provisions of this Part shall, upon conviction, be fined or imprisoned in the same manner as for the offense planned or attempted, but such fine or imprisonment shall not exceed one-half of the punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy.
      Appellant was charged with conspiracy to distribute marijuana. R.S. 40:964 classifies marijuana as a Schedule I drug- R.S. 40:966 provides in part:
      A. Manufacture; Distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
      (1) To produce, manufacture, distribute or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule I;
      (2) To create, distribute, or possess with intent to distribute, a counterfeit controlled dangerous substance classified in Schedule I.
      The penalty for a conviction for distribution of marijuana is not more than ten years at hard labor and a fine of not more than $15,000.00.

      . Appellant's assignments of error numbers two and four were not briefed and are deemed abandoned for purposes of this appeal. State v. Washington, 430 So.2d 641 (La.1983); State v. Joseph, 425 So.2d 1261 (La.1983).

      . “To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.” La.R.S. 15:448.

      . See also, State v. Johnson, 438 So.2d 1091, 1099 (La.1983); State v. Richards, 426 So.2d 1314, 1316-1317 (La.1982).


author: WARD, Judge.

text:
    Merrel Loubat CAIRE v. Harry G. CAIRE.
    No. CA-1362.
    Court of Appeal of Louisiana, Fourth Circuit.
    May 10, 1984.
    Rehearing Denied July 24, 1984.

      Edward D. Wegmann, Jones, Walker, Waechter, Poitvent, Carrere & Denegre, New Orleans, for plaintiff-appellee, Merrel Loubat Caire.
    Brian M. Begue, New Orleans, for defendant-appellant, Harry G. Caire.
    Before WARD, CIACCIO and LOBRA-NO, JJ.
   WARD, Judge.

Merrel Caire filed a rule to show cause against her former husband, Harry Caire, seeking a judgment for past-due alimony and an increase in future alimony. The Trial Judge rendered judgment in her favor and Harry Caire has appealed that judgment.

Mr. and Mrs. Caire were divorced on October 4, 1978. The judgment of divorce held Mrs. Caire free from fault and entitled to alimony. Thereafter, Mr. Caire agreed to pay alimony of $250.00 per month, and the agreement was entered in the record as a consent judgment.

On December 29, 1979, Mr. and Mrs. Caire settled the community. Mrs. Caire renounced all interests in the community, and in return, Mr. Caire gave her two pieces of immovable community property, promised to pay the mortgages and liens encumbering them, and promised to increase alimony payments to $750.00 per month. Additionally, because Mrs. Caire’s separate property had been given as security for the payment of community debts, Mr. Caire, as part of the settlement agreement, promised to pay those debts.

This agreement was not made part of the court record, thus the record only showed a consent judgment requiring alimony of $250.00 per month. However, on November 24, 1982, when Mr. Caire failed to pay the debts or alimony which Mrs. Caire believed was due, she filed a rule to change the judgment to increase alimony from $250.00 to $750.00, and requested judgment for past-due alimony. On April 12, 1983, the Trial Judge rendered judgment in her favor, increasing permanent alimony from $250.00 to $750.00 per month and holding Mr. Caire liable for past-due alimony payments of $250.00 per month which, together with one month’s increased payment amounted to $9,750.00. On June 3, 1983, Judge Roberts amended the judgment at Mrs. Caire’s request to include interest and costs.

In this appeal, Mr. Caire argues that the Trial Court erred in 1) awarding an increase in permanent alimony; 2) finding that there was past-due alimony; 3) receiving evidence offered by Mrs. Caire after she had rested her case; and 4) granting Mrs. Caire’s motion to amend the judgment to include costs and interest.

INCREASE IN ALIMONY

Mr. Caire first argues that a divorced person who seeks an increase in the amount of permanent alimony must show a substantial change in circumstances, and that Mrs. Caire failed to prove a change in either her expenses or his ability to pay.

We hold there is ample evidence to support a finding of changed circumstances: Mr. Caire discharged many of his debts in bankruptcy; he failed to pay the notes secured by the community property transferred to Mrs. Caire; he is now remarried to a wife who is able to contribute to their community; and his present employment and business investments and ventures are successful.

Additionally, Mrs. Caire showed increased needs: Mr. Caire had heavily encumbered all of the community property left in her possession, and after he declared bankruptcy she was required to pay those debts to avoid foreclosure on her separate property which had been given as security for community debts.

Mr. Caire next contends that his alimony payments should not be increased because his former wife is a trained chemist and should find a job rather than rely on him for support. Mrs. Caire was a chemist before her marriage in 1947. She has never worked since that time. Rather, she stayed at home and raised six children of their marriage. She now cares full time for an invalid mother. Under the circumstances of this case, we find no error in the Trial Judge’s refusal to consider Mrs. Caire’s professional training when he fixed alimony.

Additionally, Mr. Caire contends that his former wife should receive money from her invalid mother for the care and services she provides to her. Although Mrs. Caire administers her mother’s assets, she does not receive income from it. This help is only a natural obligation owed by children to parents. There is no law which requires a child to charge for this service. Additionally, financial assistance provided by a parent does not relieve a spouse from the obligation of support after divorce. Shelton v. Shelton, 395 So.2d 899 (La.App. 2nd Cir.1981); McCole v. McCole, 383 So.2d 55 (La.App. 2nd Cir.1980).

Mr. Caire’s final- argument is that Mrs. Caire is not in necessitous circumstances as she has assets which she should use to support herself. However, the record reflects Mrs. Caire has used a substantial amount of these personal assets for her support and the law does not require her to exhaust her assets, before she is eligible for permanent alimony. Powell v. Powell, 344 So.2d 453 (La.App. 2nd Cir. 1977); Super v. Super, 397 So.2d 1084 (La.App. 4th Cir.1981), cert. den., 399 So.2d 583 (La.).

We hold the Trial Judge did not abuse his great discretion when he ordered alimony payments increased.

PAST-DUE ALIMONY.

Mr. Caire testified that he has paid his alimony obligation, and that the judgment for past-due alimony was manifestly erroneous. The record shows it was not.

Because of Mr. Caire’s large personal debt and bankruptcy, his creditors sought satisfaction from the community property that he had transferred to Mrs. Caire in their community property settlement. To prevent the foreclosure and sale of Mrs. Caire’s home and other assets, she paid over $109,000.00 on community debts,— debts Mr. Caire had agreed to pay as part of the settlement. The record shows that the money given to Mrs. Caire, and which Mr. Caire now claims as alimony payments, was to partially reimburse Mrs. Caire for her payment of his debts, a fact Mr. Caire admitted on cross-examination. Therefore, these payments should not be credited to Mr. Caire as alimony payments. The judgment of the Trial Court holding Mr. Caire liable for past-due alimony is correct.

SUPPLEMENTAL NOTE OF EVIDENCE.

Mr. Caire objected when evidence was submitted and made part of the record after the case was closed. The decision to reopen a case for the production of additional evidence rests within the sound discretion of the Trial Judge. Vitari v. Lewis, 361 So.2d 476 (La.App. 4th Cir.1978).

We believe there was no abuse of discretion in this case. As a matter of fact, the Trial Judge asked Mrs. Caire to produce three mortgage certificates, and complying with his request, they were made part of the record after the close of her case in chief. Moreover, the certificates merely corroborated her oral testimony already in the record.

AMENDING THE JUDGMENT TO INCLUDE INTEREST AND COSTS

Mrs. Caire is entitled to interest on each alimony payment beginning from the time when each was due. Marshall v. Marshall, 390 So.2d 1365 (La.App. 4th Cir. 1980). In addition, she is entitled to an award of costs of the proceedings to make the past-due alimony executory. La.R.S. 9:305. And this is true even if the judgment does not provide for interest or assess costs. Hence, the Trial Judge did not err when he amended the judgment to provide for interest and assess costs, because the result would have been the same even if he had not done so.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    SUCCESSION OF Mateal Rhodes MANGLE. Patricia Mangle SANDERS, Executrix, Plaintiff-Appellee, v. Louise RHODES, Defendant-Appellant.
    No. 83-606.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Writ Denied June 25, 1984.

      C.O. Brown, Alexandria, for defendant-appellant.
    Thomas W. Robinson, Jr., Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY, and DOUCET, JJ.
   DOMENGEAUX, Judge.

Mateal Rhodes Mangle died testate on June 14, 1978. The statutory will appointed Henry Rhodes, Jr. as testamentary executor, and dispensed with the necessity of his posting bond. (During the pendency of the district court proceedings, Henry Rhodes, Jr. died and his widow, Louise Rhodes, was substituted as party-defendant.) Henry Rhodes, Jr. and Katie J. Moore, the deceased’s nephew and niece, were named as legatees to decedent’s property. However, Mateal Rhodes Mangle was predeceased by an adopted son, Aubry Henderson Mangle, who was the sole heir of decedent. He was survived by his two daughters, Audrey C. Mangle and Patricia Mangle Sanders (granddaughters of decedent herein). In this succession proceeding, Audrey and Patricia represent their father, sole heir of the decedent. La.C.C. Arts. 881, 882, and 883. In ex parte proceedings, the testament was admitted to probate. Patricia Mangle Sanders and Audrey C. Mangle filed a petition alleging that the will did not comply with the statutory requirements and therefore asked for it to be recalled due to want of form. Petitioners also alleged, in the alternative, that the mortis causa donation exceeded the disposable portion of decedent’s estate and therefore impinged upon their legi-time. Petitioners sought a reduction of the donation. La.C.C. Arts. 1502 and 1504. Petitioners further requested the removal of Henry Rhodes, Jr. as testamentary executor and the qualification of Patricia Mangle Sanders as dative testamentary executrix.

On July 18, 1979, the trial court ordered the removal of Henry Rhodes, Jr. as testamentary executor and further ordered the complete accounting and return of all assets of the succession, as well as all the records, receipts, bank statements and other documents. The trial judge then ordered the appointment of Patricia Mangle Sanders as dative testamentary executrix. The trial court further ordered the removal of the succession attorney, C.O. Brown.

On August 18, 1981, the executrix, Patricia Mangle Sanders, filed a petition making an application to sell real estate in the administration of the succession at a private sale. A hearing was held on a rule to show cause and the trial court determined that the application for private sale by the executrix to sell decedent’s immovable property was proper and ordered a homolo-gation. On January 20, 1982, the trial court dismissed the opposition to the petition for private sale which had been filed by Katie J. Moore, one of the legatees. The legatees (Katie J. Moore and the heirs of Henry Rhodes, Jr.) also filed an exception of lis pendens, alleging that the judgment ordering the homologation of the private sale had been suspensively appealed in forma pauperis. The trial judge withdrew that order and ordered the suspensive appeal dismissed, based upon La.C.C.P. Article 5185 which provides in pertinent part:

“When an order of court permits a party to litigate without the payment of costs, until this order is rescinded * * * * he is not entitled to a suspensive appeal, or to an order or judgment required by law to be conditioned on his furnishing security other than for costs, unless he furnishes the necessary security therefor.”

The executrix, Patricia Mangle Sanders, then filed a petition for homologation of application to sell decedent’s immovable property at a private sale. Audrey C. Mangle (one of the forced heirs and the executrix’s sister) had offered to purchase the property for $5,000.00 cash. The application was approved and the private sale was ordered. However, the executrix was unable to comply with the court-authorized sale because the attorney for the legatees recorded the notice of lis pendens which effectively constituted an encumbrance on the property and prevented the conveyance of the immovable property with a clear title.

On May 19, 1983, pursuant to a hearing on a rule to show cause, the trial judge ordered the cancellation of the lis pendens notice recorded in the Conveyance and Mortgage books of Rapides Parish. The trial judge further assessed all costs of the proceedings against the defendants, Katie J. Moore and Louise Rhodes (widow of Henry Rhodes, Jr. and substituted party-defendant).

Louise Rhodes was permitted to devolu-tively appeal in forma pauperis.

ISSUES

Appellant alleges (1) that the trial judge erred in removing Henry Rhodes, Jr. as executor; (2) that the trial judge erred in removing the original succession attorney; (3) that the trial judge erred in authorizing the private sale of decedent’s immovable property; and (4) that the trial judge erred in appointing the executrix without requiring bond.

REMOVAL OF EXECUTOR

A succession representative is a fiduciary relationship. La.C.C.P. Article 3191. An executor owes a duty to legatees, creditors, and heirs. Succession of Rosenthal, 369 So.2d 166 (La.App. 4th Cir. 1979), writ denied, 371 So.2d 1345 (La.1979); Succession of Anderson, 323 So.2d 827 (La.App. 4th Cir.1975). Fiduciaries may not place their own interests before the succession interest. Succession of Demurest, 418 So.2d 1368 (La.App. 4th Cir. 1982), writ denied, 422 So.2d 158 (La.1982).

Certain allegations of mismanagement and breach of fiduciary duty surfaced at the hearing pursuant to a rule filed to remove the testamentary executor. The two forced heirs, Patricia Mangle Sanders and Audrey C. Mangle, claimed that Henry Rhodes, Jr. was disposing of decedent’s property without court approval. During this period of time the heirs protested the executor’s actions. The trial judge found that the heirs presented evidence of improprieties and possible conflict of interest, i.e., the executor was also named in the will as legatee under universal title. La.C.C. Art. 1612. “While a mere conflict of interest in itself does not warrant removal, when this conflict becomes such that it is actively tainting the administration of the succession, removal of the executor becomes necessary.” Succession of Demarest, supra.

In Succession of Houssiere, 247 La. 764, 174 So.2d 521 (1965), the Supreme Court enunciated the character and standard of the fiduciary capacity:

“We do not subscribe to the view ... that cases of removal for alleged mis-mangement by fiduciaries should be decided on the ascertainment of legislative policy. Rather, we think the issue should be adjudged on whether the act or acts complained of constitute a mismanagement of the estate.”
174 So.2d at 524.

Further, it should be noted that an executor owes a duty to the forced heirs. We conclude that when an executor knows or has strong reasons to believe that there are persons with claims as forced heirs whose legitime is impinged by bequests in the will, he has a duty to make a diligent effort to learn the identity of and inform such persons of the death of the decedent and their possible claims. Succession of Hearn, 412 So.2d 692 (La.App. 2nd Cir. 1982), writ denied, 415 So.2d 215 (La.1982). See West v. Gajdzik, 425 So.2d 263 (La. App. 3rd Cir.1982), writ denied, 428 So.2d 475 (La.1983).

In the instant case, the record is clear that Henry Rhodes, Jr. knew that there existed two persons who were descendants of decedent’s adopted only child and forced heir. The record reveals that Henry Rhodes, Jr. acknowledged the existence of Patricia Mangle Sanders and Audrey C. Mangle in the affidavit filed to probate Mateal Rhodes Mangle’s statutory will. Despite this acknowledgment, Henry Rhodes, Jr. made no attempt to contact the forced heirs concerning their entitlement to the forced portion or notify them of their grandmother’s estate. By conducting himself as he did, the executor breached the duty he owed to the forced heirs.

We have determined by applying the stated law to the facts presented here that the fiduciary standard was not met. We agree with the trial judge’s conclusion that the executor breached his fiduciary duty and must be removed. La.C.C.Art. 3182.

REMOVAL OF SUC'CESSION ATTORNEY

C.O. Brown was named as succession attorney in the decedent’s last will and testament.- It is definitive that under our existing jurisprudence, a testatrix has the right to designate in her last will and testament an attorney to represent her succession; that designation is valid and binding upon the executor, legatees, and heirs. Succession of Boyenga, 424 So.2d 414 (La. App. 2nd Cir.1982), writ granted, 430 So.2d 81 (La.1983), citing Rivet v. Battistella, 167 La. 766, 120 So. 289 (1929). The right of the attorney named in the will to represent the succession and to be paid therefor must be recognized. Succession of Martin, 56 So.2d 176 (La.App.Orl.1952). The executor is powerless to deprive the attorney of his right to act as legal advisor to the succession without just cause. Succession of Falgout, 279 So.2d 679 (La.1973); Succession of Rembert, 199 La. 743, 7 So.2d 40 (1942); Succession of Boyenga, supra.

The court in Boyenga traced the jurisprudential application and clarified this principle:

“... we believe the views herein originally expressed clearly indicate our recognition and affirmation of the firmly settled principle that an attorney named by a testator to represent the testator’s executor or heirs enjoys an ‘irrevocable status’ in that as an agent of the testator so designated in the testator’s will he may not be discharged from the mandate thusly conferred. We further believe that our initial remarks made it abundantly clear that such an appointment involved the duty, privilege and obligation to represent the executor and heirs of the testator until the testator’s estate is settled and the correlative right to compensation for such professional services.
We wish to make it clearly understood that the agency thusly established is irrevocable in the sense that it may not be cancelled or terminated by the executor or heirs of the testator without the consent of the attorney. [Emphasis added.]”

Quoting Succession of Zatarain, 138 So.2d 163 (La.App. 1st Cir.1962).

Once the testator exercises this right, neither the executor, heirs, legatees nor the courts can question the necessity or propriety of the designation except for legal cause. The executor must abide by the lawful condition imposed by the decedent as a testamentary obligation, unless there exists facts and circumstances which furnish adequate cause recognized by law for refusing the designation or removing the attorney. Succession of Falgout, supra; Succession of Rembert, supra; Succession of Boyenga, supra.

An examination of the line of cases indicates that this testamentary privilege has not been definitively classified. The courts have given various interpretations to the exact nature of an attorney designated in a will. In Succession of Zatarain, the First Circuit held that the designated attorney was granted a mandate which terminated only with the attorney’s consent. The court stated that this power coincided with the death of the testator. The court further found that the interest in the estate did not constitute a donation or legacy. Contra, Roberts v. Cristina, 323 So.2d 888 (La.App. 4th Cir.1975), writ denied, 328 So.2d 109 (La.1976).

Despite this apparent difficulty to classify the attorney’s interest,

“ ... it is settled that an attorney so named by a testator enjoys an irrevocable status in that he may not be discharged without his consent except for cause. It is further abundantly clear under the existing jurisprudence that such an appointment not only confers the privilege of representing the succession but also imposes the duty and obligation to represent the succession and/or executor, heirs and legatees and to complete the probate. Accompanying this duty and obligation is the correlative right to compensation for such professional services.”

Boyenga, at 418.

In the instant case the attorney designated in the will was removed by the lower court. Our review of the record reveals that on the date of the hearing C.O. Brown was willing to fulfill the duty and obligation as attorney for the estate; we can find no evidence presented for adequate legal cause to remove him. C.O. Brown’s right to represent Mateal Rhodes Mangle’s estate should have been recognized and enforced. However, C.O. Brown has not appealed or answered the appeal of the decision of the trial court (removing him as attorney for the succession) on his own behalf. Therefore, because of the posture of the case before us, we are precluded from reviewing the propriety of his removal. C.O. Brown has been judicially removed as attorney for the succession by a court of competent jurisdiction by a judgment made final.

PRIVATE SALE OF SUCCESSION PROPERTY

The executrix, Patricia Mangle Sanders, proposed a private sale of the immovable succession property in order to reduce the assets to cash for the payment of succession taxes, debts, and legacies. La.C.C.P. Art. 3261. The terms of the sale consisted of $5,000.00 cash, as required by La.C.C.P. Art. 3263. One of the legatees, Katie J. Moore, filed an opposition to the sale. La.C.C.P. Art. 3283. However, the executrix complied with all of the requirements for the sale of the property and the trial judge determined in summary proceedings that the sale was in the best interests of the succession. La.C.C.P. Arts. 3281, 3282, and 3284. The trial judge did not abuse his discretion in ordering the private sale of succession property at a price slightly lower than the appraised value (approximately $7,000.00) for the purpose of settling the estate. Duplechin v. Duplechin, 248 So.2d 631 (La.App. 3rd Cir.1971). There was no showing of any offer by anyone to purchase the property other than the forced heir, Audrey C. Mangle, nor was there any showing that the additional cost and delay of holding a public sale would be justified. Succession of Lawson, 408 So.2d 992 (La.App. 2nd Cir.1981).

SECURITY

The appellant alleges that the trial judge erred because he did not order the executrix to furnish bond following the appointment. Henry Rhodes, Jr., the person named by the testatrix as executor was not required to furnish security, as provided in the will. La.C.C.P. Art. 3153. However, La.C.C.P. Art. 3153 also provides that the person appointed dative testamentary executor (due to disqualification, removal, or death of the designated testamentary executor) is required to furnish the same security as is required of the administrator of an intestate succession under La.C.C.P. Art. 3151. La.C.C.P. Art. 3151 provides:

“Except as otherwise provided by law, the person appointed administrator shall furnish security for the faithful performance of his duties in an amount exceeding by one-fourth the total value of all property of the succession as shown by the inventory or descriptive list.
The court may reduce the amount of this security, on proper showing, whenever it is proved that the security required is substantially in excess of that needed for the protection of the heirs and creditors.”

See Sarpy and Duplantier, 1960 Amendments to the Civil Code Enacted in Connection with the New Code of Civil Procedure, 21 La.L.Rev., 383, 386 (1961). The minute entries in the transcript reflect that Patricia Mangle Sanders’ appointment as dative testamentary executrix was conditioned upon her qualifying. La.C.C.P. Art. 3159. Although the trial court’s judgment determined Patricia Mangle Sanders’ status as duly authorized dative testamentary executrix, the judgment does not order security and there is nothing contained in the record to show that she furnished the security as required by La.C.C.P. Art. 3153. Failure to furnish security does not necessarily result in an invalid appointment or revocation of such appointment. Cf. Succession of Armentor, 426 So.2d 1366 (La.App. 3rd Cir. 1983) (the trial court there correctly allowed the correction of a clerical error .which stated an amount for security less than required by law); Succession of Smith, 219 So.2d 291 (La.App. 3rd Cir. 1969) (the court held in that case that the order appointing the administrator of the estate could not be set aside on the ground that the amount of bond fixed by the court and furnished by the administrator was less than required by law). The executrix can be afforded an opportunity to furnish a bond or special mortgage as security authorized by the court on an ex parte motion. La.C.C.P. Arts. 3153, 3157; see Smith, supra, at 293.

We find that the trial court committed error to the extent that it omitted an order requiring the appointed executrix to furnish security. Therefore, we remand this cause to determine whether Patricia Mangle Sanders furnished security when she qualified as dative testamentary executrix according to the provisions of La.C. C.P. Art. 3159 which require security upon taking the oath and the issuance of letters testamentary. In the event that the executrix did not furnish security, the trial court is directed to conduct proceedings consistent with the opinion expressed herein.

DECREE

For the above and foregoing reasons, the judgment of the trial court is reversed insofar as it failed to order the dative testamentary executrix to furnish security and the cause is remanded to correct this error; the judgment of the trial court is affirmed in all other respects. Costs on appeal are assessed against appellant, Mrs. Louise Rhodes.

AFFIRMED in part; REVERSED in part; and REMANDED.

GUIDRY, J., concurs in result.

      . At the time of decedent's death, the applicable provisions of La.C.C. Art. 1493 stated:
      "Donations inter vivos or mortis causa can not exceed two-thirds of the property of the disposer, if he leaves, at his decease, a legitimate child; one-half, if he leaves two children; and one-third, if he leaves three or a greater number.
      Under the name of children are included descendants of whatever degree they be, it being understood that they are only counted for the child they represent.”

      . We note that La.C.C.P. Art. 2974 provides:
      "Appeals from orders or judgments rendered in succession proceedings shall be governed by the rules applicable to appeals in ordinary proceedings, except that an order or judgment confirming, appointing, or removing a succession representative, or granting an interim allowance under Article 3321 shall be executed provisionally, notwithstanding appeal.
      The acts of a succession representative shall not be invalidated by the annulment of his appointment on appeal.”
      See Succession of Kaffie, 273 So.2d 318 (La. App. 3rd Cir. 1973), application denied, 276 So.2d 701 (La.1973).

      . Louise Rhodes is the only party who properly perfected an appeal.

      . La.C.C.P. Art. 3182 provides:
      "The court may remove any succession representative who is or has become disqualified, has become incapable of discharging the duties of his office, has mismanaged the estate, has failed to perform any duty imposed by law or by order of court, has ceased to be a domiciliary of the state without appointing an agent as provided in Article 3097(4), or has failed to give notice of his application for appointment when required under Article 3093.
      The court on its own motion may, and on motion of any interested party shall, order the succession representative sought to be removed to show cause why he should not be removed from office. The removal of a succession representative from office does not invalidate any of his official acts performed prior to his removal.”

      . La.C.C.P. Art. 3159 provides:
      "After the person appointed or confirmed as succession representative has qualified by furnishing the security required of him by law, and by taking his oath of office, the clerk shall issue to him letters of administration or letters testamentary, as the case may be.
      These letters, issued in the name and under the seal of the court, evidence the confirmation or appointment of the succession representative, his qualification, and his compliance with all requirements of law relating thereto.”


author: KLIEBERT, Judge.

text:
    J.B. HORNE, Jr. v. LIBERTY FURNITURE COMPANY, Travelers Insurance Company, et al.
    No. 83-CA-738.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 18, 1984.
    Writ Denied Sept. 14, 1984.

      Robert J. David, Nick F. Noriea, Jr., Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-appellee.
    John C. Combe, Jr., Jones, Walker, Wae-chter, Poitevent, Carrere & Denegre, New Orleans, for defendants-appellees.
    Wood Brown, III, Montgomery, Barnett, Brown & Read, New Orleans, for defendants-appellants.
    Joseph F. Clark, Jr., Hammett, Leake & Hammett, New Orleans, for intervenor-ap-pellee.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

The plaintiff, J.B. Horne, Jr., an employee of Levitz Furniture Store, brought this suit in tort to recover damages for personal injuries sustained when, on February 3, 1976, a chair he was occupying in the employees’ lounge collapsed. The defendants in the suit were Liberty Furniture Corporation, the manufacturer of the chair; Employers Mutual Liability Insurance Company of Wisconsin, the manufacturer’s product liability insurer; John Wilkins, general manager, and Charles Roberts, operations manager, of Levitz, and Travelers Insurance Company, the compensation and liability insurer of Levitz and its executive officers. Liberty’s liability was alleged to be the manufacture of a defective chair. The alleged fault against the executive officers was the failure to inspect, maintain and repair the furniture in the employees’ lounge, thus failing to provide the employees a safe place to work.

At the conclusion of the trial, the district judge, sitting without a jury, granted a motion for a directed verdict dismissing the defendant, John Wilkins, from the suit. Subsequently, by judgment dated June 8, 1983, he cast Liberty in judgment for $150,-000.00 and recognized a preference compensation claim for Travelers of $32,879.85 ($28,210.00 of compensation payments and $4,669.85 for medicals) against the plaintiffs award. The judgment also dismissed the plaintiffs suit against Roberts and Travelers.

Liberty suspensively appealed from the judgment. The plaintiff answered Liberty’s appeal. There was no appeal of the judgment granting a motion for a directed verdict dismissing the suit against John Wilkins.

Travelers filed a motion for an amended judgment which was set for hearing in September, 1983, but the record does not show what happened to this motion. In its brief, Travelers says the motion was never heard in the trial court.

After the record was lodged in this court, Roberts and Travelers filed a motion to dismiss the appeal. The motion was grounded in the contention they could not be made parties to the appeal by the plaintiffs answering Liberty’s appeal.

For the reasons hereafter stated, we affirm the trial court’s judgment.

MOTION TO DISMISS

Pursuant to the provisions of LSA-C. C.P. Article 2121, Liberty perfected an appeal of the judgment against it. Neither Roberts, Travelers, nor the plaintiff perfected an appeal of their own. Instead, after the record was lodged with this court, the plaintiff filed a pleading entitled “Appeal and Answer to Suspensive and Devolu-tive Appeal” with an attached order granting a devolutive appeal and an answer to the appeal. Since this was not the proper court in which to apply for the appeal, the Chief Judge struck that portion of the order granting an appeal and signed the order, thus leaving an order which read in pertinent part as follows: “Let plaintiff, J.B. Horne, Jr., be and he is hereby granted an answer to the appeal filed by Liberty .... ” Thus, there is no plaintiff’s appeal to dismiss. Further, the answer filed by plaintiff limits the portions of the judgment he can complain of on appeal.

LSA-C.C.P. Article 2133 provides as follows:

Art. 2133. Answer of appellee; when necessary
An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal, stating the relief demanded, not later than fifteen days after the return day or the lodging of the record whichever is later. The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.
Amended by Acts 1968, No. 129, § 1; Acts 1970, No. 474, § 1.

As we understand the article, plaintiff’s answer can only afford him appellate relief with respect to the judgment rendered against Liberty and then only as to the portion he complains of. It cannot afford him relief against Roberts or his insurer because they were not appellants. See Ogaard v. Wiley, 325 So.2d 642 (La. App. 3rd Cir.1975); Alleman v. Sentry Insurance Company, 257 So.2d 799 (La.App. 3rd Cir.1972); Lumber Products, Inc. v. Hiriart, 255 So.2d 783 (La.App. 4th Cir. 1971); Boxill v. Metrailer, 358 So.2d 986 (La.App. 1st Cir.1978). Hence, although plaintiff argues for it, we cannot give him any relief from the trial court’s dismissal of his claim against Roberts and Travelers.

LIABILITY

The law of products liability in Louisiana is well settled and can be succintly outlined. A manufacturer of a product may be held liable for injuries caused by its product without a showing of knowledge or negligence if the plaintiff establishes (1) there was a defect in the design or manufacture of the product, (2) the product was in normal use, (3) the defect created an unreasonable risk, and (4) the plaintiffs injury was caused by the defective product. Weber v. Fidelity & Casualty Insurance Co. of N.Y., 259 La. 599, 250 So.2d 754 (1971); Hunt v. City Stores, Inc., 387 So.2d 585 (La.1980). Once the plaintiff has established the elements of a products liability claim, only a showing by the defendant of the assumption of the risk by the plaintiff will bar a recovery. Harris v. Atlanta Stove Works, Inc., 428 So.2d 1040 (La.App. 1st Cir.1983); Bell v. Jet Wheel Blast, Division of Ervin Industries, 709 F.2d 6 (5th Cir.1982).

Liberty’s assignments of error on this appeal can be condensed into three contentions — (1) the chair which collapsed was not manufactured by Liberty or it was not the same one shown in the pictures used by the experts in formulating their conclusions, (2) the chair was abused and its collapse was caused by the abuse or defective wood and not by a defect in its manufacture, and (3) the plaintiff assumed the risk and/or was contributorily negligent.

We will now consider Liberty’s first enumerated assignment of error.

Mr. Christenberry, Liberty’s representative, testified that he inspected the broken chair some time after the accident, found Liberty’s inventory number on the chairs in the employees’ lounge and satisfied himself the chairs were manufactured by Liberty and the pictures of the broken chair submitted in evidence were of the same chair shown to him as the chair which collapsed while occupied by the plaintiff. Mrs. Phyllis Weber, who took the photos and identified same as plaintiff’s exhibits 12A through 12L, testified that she was shown the chair involved in the accident in the Levitz conference room and photographed it. Further, she testified the chair in the picture was the chair involved in the accident.

Thus, the record contains ample evidence to support the trial judge’s conclusion the chair which collapsed was manufactured by Liberty and the pictures used by the experts were of the chair which collapsed. Although there is evidence which might indicate otherwise, we cannot say the trial judge committed manifest error in finding Liberty was the manufacturer of the chair which collapsed and the pictures used by the experts was of this chair. Without manifest error, we cannot change the trial court’s finding of fact. Canter v. Koehring, 283 So.2d 716 (La.1973).

Next we consider what caused the chair to collapse.

Plaintiff’s experts, testifying from photographs, said the chair collapsed because of improper gluing. Their conclusion was based on the fact the wood dowels pulled out of the sockets rather than sheared. An examination of the pictures supports their conclusion.

Thus, the record supports the trial judge’s conclusion the chair was defective. Although there were conflicting accounts of exactly how the chair collapsed, the pictures establish with certainty that the dowels pulled out rather than sheared. The experts all testified that once properly glued, the dowels would be stronger than wood and, therefore, would shear before pulling out of the sockets. Hence, the trial judge’s conclusion that the chair was defective should not be disturbed. Pawlak v. Brown, 430 So.2d 1346 (La.App. 3rd Cir. 1983).

Liberty also argues the placing of the chair in a commercial lunchroom constituted a misuse or abuse of the product because the chairs were designed for home use. Plaintiff counters with the contention Liberty should have anticipated the chairs might be used in a non-residential situation but failed to give a limited use warning; consequently, plaintiff argues the use of the chair in a foreseeable and intended manner is not sufficient to establish misuse and cites Storey v. Lambert’s Limbs & Braces, Inc., 426 So.2d 676 (La.App. 1st Cir.1982) to support it. Liberty argues, however, that Levitz, being a long time furniture dealer, had knowledge of the characteristics of the furniture and, hence, was a sophisticated purchaser. As such, Liberty had no duty to warn Levitz of the danger of placing the chair in use in the employees’ lounge. In support of the contention, counsel for Liberty cites Foster v. Marshall, 341 So.2d 1354 (La.App. 2nd Cir. 1977); American Ins. Co. v. Duo Fast Dixie, Inc., 367 So.2d 415 (La.App. 4th Cir. 1979), which hold that a manufacturer or retailer is not required to warn the user of a danger where the user is or should be aware of the danger.

We note that the determination of what is an open and obvious danger is a factual one. Our courts have held that (1) leaning too far on a ladder is an obvious danger, Bell v. Marriott Hotels, Inc., 411 So.2d 687 (La.App. 4th Cir.1982); (2) a gasoline producer has no duty to warn a retailer that gasoline is dangerous, Butler v. Atwood, 420 So.2d 742 (La.App. 4th Cir. 1982); or that (3) operating electrical equipment in water is dangerous, Lovell v. Earl Grissmer Co., Inc., 422 So.2d 1344 (La. App. 1st Cir.1982). Here the defect was actually hidden (the improper or inadequate gluing could not be detected until the chair collapsed) and there is nothing to indicate the use of the chair in the lounge area was an obvious or apparent danger. Accordingly, we cannot say the trial court erred in concluding Liberty was required to give warning the chair was not intended for commercial use to absolve itself of liability.

To carry its burden of proof, a plaintiff in a products strict liability suit, such as the one present here, need only prove that the product was defective, i.e., unreasonably dangerous to normal use and that his injuries were caused by reason of the defect. Weber v. Fidelity & Casualty Insurance Co. of N. Y., supra. It is not necessary to prove the exact or precise nature of the defect, but rather, only that a manufacturing defect existed and that it caused the accident. Hunt v. Ford Motor Co., 341 So.2d 614 (La.App. 2nd Cir.1977). This rule applies because a manufacturer warrants that his product is reasonably fit for the use for which it is intended when it is sold and is presumed to know the vice or defect of the product he manufactures. Spillers v. Montgomery Ward & Co., Inc., 294 So.2d 803 (La.1974); Penn v. Inferno Mfg. Corp., 199 So.2d 210 (La.App. 1st Cir. 1967), writ denied, 251 La. 27, 202 So.2d 649 (1967); Chappuis v. Sears Roebuck & Co., 358 So.2d 926 (La.1978).

Further, the manufacturer owes an affirmative duty to any user of its product to assure him that all hazards or defects are eliminated from the product. Also, the manufacturer has an independent duty to test and inspect its product. Samaba v. Southern Rambler Sales, Inc., 146 So.2d 29 (La.App. 4th Cir.1962). Here, the defendant’s employee-expert admitted there was absolutely no testing and only a visual inspection of the product.

In our view, the trial judge correctly concluded the plaintiff met the burden of proof necessary to impose liability on the manufacturer. In substance, he proved the chair was (1) defective, (2) it was in normal use, and (3) the defect created an unusual risk and (4) the defect was the cause of some of the plaintiff’s complaints.

Next we consider Liberty’s contention as to contributory negligence and assumption of risk.

There is no evidence the plaintiff used the chair other than in the normal and proper way; nor is there evidence from which we could conclude the plaintiff contributed to the chair’s collapse. Accordingly, we need not consider the legal issue as to whether the doctrine of contributory negligence can be applied in this type of products strict liability case.

Further, the mere fact the plaintiff weighed 300 lbs. does not place him in a class of extra ordinary persons who must exercise special care and caution in selecting a chair to sit in. Additionally, the plaintiff was not under an obligation to use extra care because the chairs in the lounge were known to be defective or wobbly. The recorded statements relied on by the defendant to show the chair was in disrepair were given by the plaintiff while in the hospital and were explained by him as being based upon hearsay information given to him by one of Levitz’s managers. There is nothing in the record indicating the chairs were wobbly or in apparent disrepair prior to the time the chair collapsed.

Although Liberty urges the application of the doctrines of contributory negligence and/or assumption of risk, the arguments are simply without basis in the evidence.

QUANTUM

After hearing the evidence, the trial judge made the following findings as to the plaintiffs injuries:

“6. Plaintiff has grossly exaggerated his injuries and the alleged resulting disability;
7. Plaintiff has grossly exaggerated his need for ‘nursing care’ and his inability to perform the most intimate personal acts necessary for daily body hygiene. This court finds that he falsely testified about the latter functions on the court’s observation of the plaintiff’s movements in his wheelchair and the ease in which he maneuvered this vehicle. This court would apply the maxim ‘falsus in uno, falsus in omnibus’, and no part of his statements is entitled to credence.
8. Plaintiff professed he could not bend at the waist however, a private investigator observed him at his residence moving about without walker or wheelchair and bending at the waist.
9. Plaintiff prescribed and obtained his wheelchair prior to any medical advice or prescription therefor;
10. Plaintiff is not a paraplegic as he portrayed himself by his actions in court by being constantly in a wheelchair and being pushed to and from the courtroom and rushed in great haste to the restroom by his live-in female companion and ‘nurse’.
11.Plaintiff had no broken bones as a result of the accident and received no more than at most some undefined nonspecific soft tissue injury.”

After carefully reviewing the record, we cannot say the trial judge was clearly wrong in his findings as to the injury or the plaintiff’s exaggeration or his award of damages.

The evidence shows the plaintiff had substantial injuries which predated the accident.

While performing a spinal fusion, Dr. Gernon Brown noted a previous laminecto-my (it had been performed in 1963) and noted that plaintiff was suffering from a progressively worsening degenerative spine disease.

Additionally, plaintiff had sought treatment for a back injury in Portmouth, Virginia, after a slip and fall accident on December 26, 1975 which was five weeks pri- or to the date the chair collapsed. The medical report of the treating physician in Virginia concluded that although Mr. Horne complained of spinal pain when he moved his head, x-rays showed no objective evidence of injury, however, they did note evidence of “scattered degenerative lip-ping”. This report also showed plaintiff was then suffering from hypertension.

On his return to New Orleans from Virginia, plaintiff went to Dr. Marrero, an orthopedic surgeon for treatment. According to Dr. Marrero, plaintiff’s complaints of pain after the fall in Virginia were relative to the cervical spine and upper lumbar while complaints made to Dr. Marrero after the collapse of the chair were relative to the lower lumbar area of the back.

Dr. Marrero testified he diagnosed the injury after the collapse of the chair as a sprain of the lower lumbar which he originally believed would clear up in time. He testified there was a tremendous psychological overlay with great complaints of pain and no organic basis for same. The plaintiff’s complaints were out of character with the physical findings.

Dr. Gernon Brown, Jr., the primary treating orthopedic surgeon, first saw the plaintiff on June 2, 1976 (prior thereto he was under the treatment of Dr. Marrero) and hospitalized him for evaluation. X-rays taken during the hospitalization showed a narrowing of the disc spaces, which Dr. Brown said was a characteristic of a degenerative disc disease. He concluded the plaintiff had an injury to his back “superimposed on a pre-existing disc disease”. He operated on the plaintiff to try and relieve his complaints of pain by doing a double fusion at L.4 and L.5. Only a fusion was performed. No discs were removed.

At the time of his last examination in 1981, Dr. Brown believed the plaintiff was totally disabled with no hope of rehabilitation unless the plaintiff first lost substantial weight. He would not say, however, that the collapsed chair was the cause of all of the plaintiffs present problems. Rather, he believed a combination of factors, including obesity and degenerative disc disease, was the cause of his present disability. Further, he believed plaintiffs refusal to reduce his weight retarded his recovery from the injuries sustained in the chair accident.

Dr. Brown referred the plaintiff to Dr. Stuart Phillips, another orthopedic surgeon in May 1980, which was after the surgery had been performed by Dr. Brown. He examined the plaintiff and reviewed all of his records. At the time of the examination he found marked paravertebral muscle spasm in the lower lumbar region. He concluded the plaintiff had “spinal steno-sis” which means a narrowing of the spinal canal and believed this had been aggravated by the chair collapse. According to this orthopedist, the surgery on the plaintiffs back had resulted in scar tissue which could be pressing against a nerve and the cause of the plaintiffs complaint of pain. Additionally, surgery in his view would further aggravate rather than relieve the problem.

At the time of trial, plaintiff had been treated for maladies associated with obesity. Dr. Mayer Heiman testified that he first saw the plaintiff in 1976 and began to treat him for “obesity, hypertension and probable heart disease”. He believed stress aggravates or may even precipitate high blood pressure. He had confined the plaintiff to the hospital in 1979 and 1980 for the high blood pressure. He did not attribute these problems of the plaintiff to the collapsed chair.

The private investigator’s observation of the plaintiff as to his ability to bend at the waist and to move about his residence without the use of a walker or wheelchair was unrefuted. The self-prescribed remedies found by the trial judge were also unrefut-ed.

The record clearly reveals the plaintiff had an extensive history of back related problems and symptoms of degenerative spinal disease which predated the chair collapse. The back surgery performed prior to the fall, degenerative disc disease, obesity, hypertension and heart disease were not caused by the fall and there existed sincere doubt by the doctors as to whether the pre-existing problems were aggravated by the chair accident. As stated by the trial judge, although the medical testimony is replete with findings of physical ailments disconnected with and unrelated to any reasonably certain accident related injury, there is nothing in the record to indicate the plaintiff will incur future medical expenses for accident related injuries or that the plaintiff could not be gainfully employed. We cannot say this conclusion drawn from the evidence was wrong.

In his original brief, counsel for the defendant said: “The quantum award is somewhat excessive in view of the evidence of the prior accident and self-prescription of treatment indulged in by the plaintiff. However, the amount awarded is clearly within the much discretion of the trial court_” We agree with this observation and hence cannot say the trial judge was clearly wrong in refusing to award future medical expenses or awarding $150,-000.00 for loss of past and future earnmgs and general damages; nor are we at liberty to substitute our opinion as to the amount of the award for that of the trial court. Spillers v. Montgomery Ward & Co., Inc., supra.

RECOVERY FOR COMPENSATION BENEFITS

Travelers, the compensation carrier, filed an intervention in the trial court and was awarded a preferential claim against the plaintiffs award of $32,879.38, made up of $28,210.00 for weekly compensation benefits paid to June 18, 1982 and medical expenses of $4,669.38. In the brief filed on appeal, Travelers urges an increase in its claim of $40,000.00 for medical expenses and an award or a declaration of entitlement for future medical expenses it may be required to pay to" the plaintiff.

The plaintiff on the other hand argues that the trial court award to the plaintiff did not include an award for past due or future medical expenses, hence, the award to the intervenor should be reduced by $4,669.38.

Whatever may be the merit of either contention, we note the following: Travelers did not appeal, nor did it file an answer to the appeal. Hence, we are powerless to grant it the relief requested. Likewise, as shown under the caption “Motion to Dismiss”, the plaintiff failed to timely appeal. Rather, it answered the appeal taken by Liberty of the judgment rendered against Liberty. Under the provisions of LSA-C.C.P. Article 2133 above quoted, the plaintiff’s answer was equivalent to an appeal on his part only from that portion of the judgment rendered against him in favor of Liberty and which he complained of in his answer. His only complaint as to the judgment against Liberty was the inadequacy of the damage award. Consequently, we cannot grant the relief which he asked for as to the intervenor’s award.

CONCLUSION

The judgment of the trial court is affirmed. Each party to bear his own cost of the appeal.

AFFIRMED.

      . The accident happened prior to the amendment to the Louisiana Workmen’s Compensation Act restricting suits against executive officers. See Act 147 of 1976; LSA-R.S. 23:1032. The state court trial was apparently delayed pending the outcome of an action filed in federal court.


author: CARTER, Judge.

text:
    CAJUN ELECTRIC POWER COOPERATIVE, INC., et al. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    No. 83 CA 0680.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Rehearing Denied June 29, 1984.
    Writ Denied Oct. 12, 1984.

      Robert R. Rainer, Baton Rouge, for plaintiffs-appellants Cajun Elec. Power Coop. Inc. and Stone & Webster Engineering Corp.

      Robert H. Carpenter, Jr., Douglas F. Herbert and Riley F. Boudreaux, Jr., Baton Rouge, for defendant-appellee Shirley McNamara, Secretary of the Dept, of Revenue and Taxation, State of La.
    Before PONDER, WATKINS and CARTER, JJ.
   CARTER, Judge.

This is a suit filed by Cajun Electric Power Cooperative, Inc. (Cajun) and Stone and Webster Engineering Corporation (S & W) for refund of sales and use taxes paid under protest by Cajun to the State of Louisiana.

In April of 1971, Gulf States Utilities Company (GSU) and S & W entered into a contract for the construction of the River Bend Nuclear Power Plant.

Eight years later (August, 1979), during the course of the construction, GSU and Cajun agreed that Cajun would become a 30% co-owner of River Bend. Pursuant to this agreement, GSU and Cajun executed a contract captioned “Joint Ownership Participation and Operating Agreement.” GSU and Cajun agreed that Cajun would acquire its 30% undivided co-ownership interest in River Bend in the following manner. All construction costs up to the point of Cajun’s entry into the project had been paid for by GSU. It was agreed that beginning in January, 1981, Cajun would begin paying for all costs of construction and would continue to do so until such time as Cajun had bought and paid for costs of construction which equaled 30% of the total which had been spent on such costs up to that point in time.

From January, 1981, through November, 1981, Cajun paid for all construction costs. During this period, GSU did not contribute any funds. After November, 1981, Cajun had contributed funds which equaled 30% of the total costs, and the parties were at what they refer to as “parity.” Since November, 1981, GSU and Cajun have been responsible for the costs of construction by paying 70% and 30%, respectively. The project is still under construction, and the 70/30 contribution is still in progress.

At trial, Cajun contended that, as an electric cooperative, it is exempt from all sales and use taxes pursuant to LSA-R.S. 12:425. Cajun argues that all construction materials and equipment were purchased by Cajun, with S & W only acting as purchasing agent. • Cajun contends that the exemption granted by 12:425 is applicable to all such purchases, and therefore, no sales or use taxes are owed.

The trial court, in oral reasons for judgment, found that Cajun, as an electric cooperative, was exempt from sales and use taxes, but that S & W, as the purchaser and final customer, owed both sales and use taxes. The court found that S & W was an independent contractor for the purpose of construction of the plant, and therefore, could not also act as an agent of Cajun in the purchase of equipment and materials.

AGENCY

Plaintiffs appeal the ruling of the trial court assigning as error the failure of the trial court to find that S & W was acting as purchasing agent for Cajun and, therefore, that the purchases were tax exempt.

The resolution of this issue is necessary because if S & W is an agent of Cajun or GSU or both, then clearly the principal owes the taxes under basic agency principles. However, if S & W is an independent contractor, as the trial court determined, then S & W is liable for the sales taxes on purchases to construct River Bend, and neither of the joint venturers are liable to the state for sales taxes.

In the case sub judice, the record clearly indicates that an agency relationship existed between Cajun and S & W. For example, the power of attorney executed by Cajun appoints Stone & Webster Engineering Corporation “to act for it in its name, place and stead, for the purpose and rental of tangible personal property with funds constributed (sic) by principal....”

In the ease sub judice, the record clearly indicates that an agency relationship existed between Cajun and S & W. For example, the power of attorney executed by Cajun appoints Stone & Webster Engineering Corporation “to act for it in its name, place and stead, for the purpose and rental of tangible personal property with funds contributed (sic) by principal_” Additionally, the purchase orders used by S & W in obtaining material and equipment show that S & W was acting as purchasing agent.

An examination of the entire record convinces us that S & W was not an independent contractor, but was agent of Cajun.

JOINT ADVENTURE

The early case of Ault & Wiborg Co. of Canada v. Carson Carbon Co., 181 La. 681, 160 So. 298 (La.1935) defined joint venture as follows at p. 300:

“The legal relation of joint adventure now widely recognized in judicial decisions results from the undertaking by two or more persons to combine their property or labor in the conduct of a particular line of trade or general business, for joint profits, creating the status of a partnership, although the facts do not show a formal partnership. While a joint adventure is not identical with a partnership, it is analogous to a partnership and is controlled largely by the principles or rules applicable to partnerships.”

The jurisprudence has established that the essential elements of a joint venture are generally the same as those of partnership, i.e., two or more parties combining their property, labor, skill, etc. in the conduct of a venture for joint profit, with each having some right of control. Walker v. Simmons, 155 So.2d 234 (La.App. 3rd Cir.1963). Therefore, in general, joint ventures are governed by the law of partnership. Marine Services, Inc. v. A-1 Industries, 355 So.2d 625 (La.App. 4th Cir.1978).

LSA-C.C. art. 2801 defines partnership as follows:

“A partnership is a juridical person, distinct from its partners, created by a contract between two or more persons to combine their efforts or resources in determined proportions and to collaborate at mutual risk for their common profit or commercial benefit....”

The same requisites are applicable to a joint venture, and are as follows:

(1) A contract between two or more persons;
(2) A juridical entity or person is established;
(3) Contribution by all parties of either efforts or resources;
(4) The contribution must be in determinate proportions;
(5) There must be joint effort;
(6) There must be a mutual risk vis-a-vis losses;
(7) There must be a sharing of profits.

All of the above items are found in the case sub judice, either in the Joint Ownership Participation and Operating Agreement, the Powers of Attorney, or otherwise. Cajun and GSU agreed to combine their resources in a 70% and 30% ratio, to collaborate, and to share the risk of loss and the hope of gain.

During August, 1979, when GSU and Cajun agreed that Cajun would become a co-owner of River Bend — and the various contracts and powers of attorney were signed — a joint venture came into existence between the two parties.

Cajun strenuously contends that Article Seven of the Joint Ownership Participation and Operating Agreement expressly provides that its association with GSU would not be a partnership or joint venture. Article Seven, Section 7.6 of the Joint Ownership Participation and Operating Agreement provides as follows:

“Notwithstanding any provision of this Agreement, the Co-owners do not intend under Louisiana or Texas law to create hereby or by their actions as Co-owners any joint venture, partnership, association, or trust, or render the Co-owners liable as partners or trustees.”

The existence or nonexistence of a joint venture is a question of fact, although what constitutes a joint venture is a question of law. Grand Isle Campsites, Inc. v. Cheek, 262 La. 5, 262 So.2d 350 (La.1972). There are no hard and fast legal rules fixing the requisites for a joint adventure; each case must be considered sui generis and care must be exercised that consideration is given to the usages and practices characteristic of the particular commercial undertaking sought to be labeled a “joint venture.” Hero & Company v. Farnsworth & Chambers Co., 236 La. 306, 107 So.2d 650 (La.1958).

Cajun’s argument overlooks the obvious that the legal relationship of parties will not be conclusively controlled by the terms which the parties use to designate their relationship, especially with regard to third parties. Courts look to the totality of evidence and not just the written agreement between the parties to determine whether a joint venture was entered into. Guilbeau v. Liberty Mutual Insurance Company, 324 So.2d 571 (La.App. 1st Cir. 1975).

It is interesting to note that in Article Nine of the Joint Ownership Participation and Operating Agreement, GSU and Cajun contracted as follows:

“9.1 Tax Partnership: The co-owners, collectively sometimes referred to as ‘partners,’ agree that their participation under this agreement, shall, for the purpose of federal and state income taxes and subject to Section 9.11, be considered and taxed as a general tax partnership (‘tax partnership’) and such tax partnership shall be governed by the provisions of this article.”

Therefore, on the one hand Cajun and GSU are contracting that they are not a partnership or joint venture and thus seek to avoid payment of sales, use, and other excise taxes, and on the other hand they claim the advantages of being a “partnership” for state and federal income tax purposes.

Clearly, GSU and Cajun are engaged in a joint venture in spite of their expressed disclaimer because when two or more persons or concerns enter into an agreement which the law defines as a partnership or joint venture, it becomes a juridical entity and the liability of the parties is determined by the law relating to partnership or joint venture even though the parties may not have thought of such consequences and even sought to avoid the consequences of sales tax, etc. See Fossier v. American Printing Co., Ltd., 130 So.2d 529 (La.App. 4th Cir.1961). The relationship between Cajun and GSU exhibits all of the elements of a joint venture and in fact they maintain that they are a partnership or joint venture for state and federal income tax purposes. They cannot be heard to deny that they are a joint venture to avoid payment of sales and use taxes.

The basis for the exemption claimed by Cajun is found at LSA-R.S. 12:425 which reads as follows:

“Each cooperative shall pay annually, on or before the first day of July, to the department of revenue, a fee of ten dollars for each one hundred persons or fraction thereof to whom electricity is supplied within the state by it, but shall be exempt from all other excise and income taxes whatsoever.”

It is clear from the statutory provisions quoted above that the legislature intended for electric power cooperatives, as separate entities, to be granted certain tax exemptions, i.e., excise and income tax exemptions.

In the instant case, appellant is correct in arguing that Cajun, as an electric cooperative, is entitled to the tax exemption provided for in LSA-R.S. 12:425. However, we find no language in the statute which will allow us to extend the legislatively granted exemptions to a situation in which Cajun acts as a participant in a joint venture. If the legislature had intended the exemption to apply to an electric cooperative when it entered into a joint venture or partnership, it could have easily so provided.

Exemptions from taxation are to be strictly construed against the person claiming the exemption, and any plausible doubt is fatal. In like manner, an exemption being an exceptional privilege, it must be clearly, unequivocally and affirmatively established. A & P Boat Rentals, Inc. v. Cronvich, 361 So.2d 1260 (La.App. 1st Cir. 1978), writ refused, 363 So.2d 923 (La. 1978); Ethyl Corp. v. Collector of Revenue, 351 So.2d 1290 (La.App. 1st Cir.1977), writ refused, 353 So.2d 1035 (La.1978).

Although electric cooperatives are entitled to such an exemption under LSA-R.S. 12:425, a different situation exists when the cooperative changes its identity or assumes a new role.

The joint venture is not exempt from the taxes. The exemption contained in LSA-R.S. 12:425 applies only when Cajun acts singularly as an electric cooperative and not when it engages in a business venture with a non-exempt entity. Since there is no specific sales and use tax exemption for the joint venture as a legal entity, we find that the specific exemption claimed by Cajun has not been clearly, unequivocally and affirmatively established in the instant case.

Therefore, the sales taxes for purchases made by S & W for construction of River Bend are due and attributable to the partners to the extent that they have contributed to the joint venture. GSU has paid its 70% share of the sales taxes, leaving Cajun liable for its proportionate share (30%) of the taxes, which Cajun paid under protest.

For the reasons set forth herein and not for the reasons assigned by the trial court judge, the judgment of the trial court is affirmed. All costs are to be paid by appellants.

AFFIRMED.

      . In addition, a similar agency relationship existed between GSU and S & W and GSU and Cajun.

      . In Daily States Publishing Co. v. Uhalt, 169 La. 893, 126 So. 228, at 231, (1930) it was stated:
      “The relations between joint adventures are assimilated to those of partners inter se. Lu-deau v. Avoyelles Cotton Co., [164 La. 275, 113 So. 846] supra. As respects the character of the business undertaken, the principal difference between a partnership and a joint adventure ‘is that, while a co-partnership is ordinarily formed for the transaction of a general business of a particular kind, a joint adventure is usually, but not necessarily, limited to a single transaction, although the business of conducting it to a successful termination may continue for a number of years.’ ”
      See also McCann v. Todd, 203 La. 631, 14 So.2d 469 (1932); Marine Services, Inc. v. A-1 Industries, Inc., supra.

      .Cf. Josephs v. Austin, 420 So.2d 1181 (La.App. 5th Cir. 1982), writ denied 427 So.2d 870 (1983); American Fidelity Fire Ins. Co. v. Atkison, 420 So.2d 691 (La.App. 2nd Cir.1982); Roberson v. Maris, 266 So.2d 488 (La.App. 4th Cir.1972); Walker v. Simmons, supra, and cases cited therein.