author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    Roger Dale WHITE, Plaintiff-Appellee, v. NATIONAL UNION FIRE INSURANCE COMPANY, Defendant-Appellant.
    No. 84-90.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Gist, Methvin, Hughes & Munsterman, Steven W. Cook, Alexandria, for defendant-appellant.
    Darrel D. Ryland, Marksville, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

This is an appeal in a worker’s compensation case. The defendant insurance company appeals the trial court’s overruling of an exception of prematurity and, alternatively, the finding that the plaintiff, Roger Dale White, is totally and permanently disabled rather than temporarily totally disabled. The plaintiff, White, answers the appeal contending the trial court erred in failing to award him penalties and attorney’s fees.

FACTS

Roger Dale White was injured on December 26, 1981, while working on an oil rig. He-was hit by a huge pipe which was being moved by a crane and chain, which struck him in the groin, cutting his scrotal sac. The crane operator pulled the pipe suddenly to prevent it from hitting petitioner again. By doing so, the pipe caught petitioner and caused him to straddle the pipe which moved again and knocked him up against a guardrail. Petitioner then fell off the pipe and landed on a railing, striking the railing across his low back and causing a sudden jolt to his neck and back. He was employed by Merit Drilling Company at the time, and the accident occurred during the course and scope of his employment.

White was taken to Marksville General Hospital and treated in the emergency room for the cut in his scrotal sac. He was subsequently seen by his family physician, Dr. L.J. Mayeaux, who recommended that he see orthopedist, Dr. Douglas Gamburg, and urologist, Dr. Leo Lowentritt. White was treated by Dr. Lowentritt. He saw Dr. Gamburg once, and then began seeing Dr. P.M. Davis, another orthopedist who has treated him since. From the time he began treatment with Dr. Davis in January, 1982, through the date of trial on October 31, 1983, Mr. White has shown little improvement in the condition of his back and neck.

White is also being treated by Dr. William Cloyd, a neuropsychiatrist in Lafayette. White has seen two other orthopedists, Dr. F.C. McMains in Baton Rouge, and Dr. Bruce Razza in New Orleans. National Union Fire Insurance Company, Merit Drilling Company’s worker’s compensation insurer, denied the payment of the medical bills of Dr. McMains and Dr. Raz-za. White sued for worker’s compensation benefits, medical expenses, including travel expenses, penalties and attorney’s fees, and to be declared totally and permanently disabled.

TRIAL COURT RULING

The trial court overruled the exception of prematurity and found the plaintiff totally and permanently disabled, and awarded him worker’s compensation benefits, plus all medical, including the medical treatment by Dr. McMains and Dr. Bruze Razza, and all medical travel expenses up to the statutory limit. White’s claim for attorney’s fees and penalties was denied.

EXCEPTION OF PREMATURITY

On appeal, National Union Fire Insurance Company argues that the case should have been dismissed on the exception of prematurity. Parenthetically we note that under certain conditions to be noted below a petition for worker’s compensation may be premature as provided in LSA-R.S. 23:1314. Under this section if a petition is found to be premature, it shall be dismissed. Subsection C of the section provides: “The court shall determine whether the petition is premature and must be dismissed before proceeding with the hearing of the other issues involved with the claim.” (Emphasis supplied) This was not done in this case. The exception of prematurity, without articulating the specific basis therefor, was filed as a part of defendant’s answer as a final allegation. Paragraph one of defendant’s prayer asked that the exception be maintained and that the petition be dismissed. Paragraph two is an alternative plea which prays that plaintiff’s demands be rejected which would be on the merits. In fact, the parties proceeded to trial on the merits without disposing of the exception. In the course of the trial, counsel for defendant requested that the exception of prematurity be referred to the merits to which the court agreed. Tr. 59 and 60.

In its reasons for judgment the trial court overruled the exception of prematurity without discussion and proceeded to a discussion of the merits of the case. We are not certain as to what posture the exception was in when it was not disposed of prior to trial of the merits and was referred to its merits. Obviously defendant waived its privilege of having the exception determined prior to trial on the merits. We decline to rule or comment on the procedure adopted because in this instance we agree with the trial court and hold that there was no merit to the exception. Briefly stated our reasons are as follows:

LSA-R.S. 23:1314 provides that an employee’s compensation suit shall be dismissed as premature unless the petition alleges: (1) That the employee is not being paid or has not been paid the maximum percent of wages to which he is entitled; (2) that the employee has not been furnished the proper medical attention; or (3) that the employee has not been furnished with copies of the medical reports after a written request.

Here White’s petition alleges that he has suffered severe injuries as a result of his accident and continued to suffer the injuries as of the date of the petition, that doctors have prescribed a course of treatment and hospitalization for further tests, and that defendants have advised plaintiff that they are denying payment of plaintiff’s medical bills and for any further tests or medical treatment. The allegation that the defendant has refused to pay for further treatment and that doctors have prescribed treatment is sufficient to allege that he has not been furnished the proper medical attention.

The defendant insurer argues that the suit was premature because White had been furnished with all the reasonable and necessary medical attention, and allegations that he was not furnished with proper medical attention are unreasonable. Defendant argues that the petition must be dismissed under LSA-R.S. 23:1314, which at the time of the injury stated in part, “[W]hen such allegations are contained in such petition and are denied by the employer at the time fixed thereunder by court, if it be shown that such allegations are without reasonable cause or foundation in fact, such petition shall be dismissed.” Defendant contends it has provided White with a competent orthopedist, Dr. Davis, and that it is unreasonable for plaintiff to continue to seek treatment from other doctors. Defendant argues that plaintiff was doctor shopping and that he would have continued to seek treatment from other doctors until he found one who would run more tests.

We do not find it unreasonable for White to seek further medical treatment. There was no evidence that he had made any progress under Dr. Davis after more than a year of treatment. Dr. Razza’s diagnosis of injury to a disc was different from the diagnosis of the other orthopedists White had seen. The trial court did not err in denying the exception of prematurity.

The situation here with reference to the exception should be distinguished from the exceptions of prematurity involved in such cases as Ducote v. Harris, 335 So.2d 91 (La.App.3rd Cir.1976); Cooley v. Liberty Mutual Insurance Company, 346 So.2d 1352 (La.App.3rd Cir.1977), writ denied, 350 So.2d 903 (La.1977), and Sam v. Standard Fittings Company, 389 So.2d 792 (La.App.3rd Cir.1980), writ applied for, withdrawn, 395 So.2d 812 (La.1980). These cases apply the principle that with reference to medical benefits the test is not whether the employer has refused to pay the medical bills incurred, but instead it is whether the employee has not been furnished the proper medical attention. Here we are concerned with further medical attention to which the plaintiff, Roger Dale White, is entitled and which the defendant has flatly stated it will not pay for. In the Ducote, Cooley and Sam cases the claimant had received medical attention and the issue was payment for the services. This was interpreted to mean that the employee had “been furnished the property medical attention” as the words are employed in the statute, LSA-R.S. 23:1314, Subpara-graph A(3). Here, plaintiff has established that he is entitled to further medical services, and defendant has taken the position that plaintiff has been provided with all the medical attention he needs and defendant will not authorize or pay for any additional services.

MERITS OF THE CASE

The second argument the insurance company makes is that White is entitled only to an award of temporary total disability and not that of total and permanent disability. There has been little or no improvement in the condition of White’s back and neck. There is no conclusive indication that it will improve enough for him to work, and, of course, no indication of when such improvement would occur. In February of 1982, Dr. Davis predicted White could return to work in six weeks. In October of 1982, he predicted he could return to work as a roughneck in one to two months. In October, 1983, he was still unable to work. Dr. Cloyd testified in his deposition that White would be disabled to engage in any employment during his one to two years of psychotherapy treatment. Dr. Razza stated in his deposition that further tests were needed to tell how much, if any, of White’s disability would be permanent. He also stated that if White suffers from the disc disease he suspects he has, he is not likely to improve with time. The condition is more likely to get progressively worse with time.

The trial judge was not clearly wrong in finding White permanently and totally disabled.

The third and final issue is- whether the court erred in failing to award White penalties and attorney’s fees. Under LSA-R.S. 22:658, insurers must pay penalties for failure to make payments when such failure is found to be arbitrary, capricious, or without probable cause. We agree with the trial court, that under the circumstances the defendant was not arbitrary or capricious in the handling of this matter. The insurer paid for some medical treatment. There was a reasonable dispute over whether White required further medical treatment by other doctors. The judgment of the trial court is affirmed.

AFFIRMED.

DOMENGEAUX, J., dissents and assigns reasons.

DOMENGEAUX, Judge,

dissenting.

I respectfully suggest that plaintiff’s suit should have been dismissed as premature under La.R.S. 23:1314. The record is replete with evidence that the employer furnished plaintiff more than adequate medical attention as required by law. Plaintiff began to “doctor shop”. To a large extent the new doctors repeated what had already been done by the doctors who had previously seen and treated plaintiff.

Plaintiff was paid the correct compensation rate from the time of the accident to the time of trial.

Under the rationale of the majority opinion, a compensation claimant could conceivably go from doctor to doctor ad infinitum, notwithstanding the furnishing of adequate medical attention by the employer, and thereby proceed prematurely with suit if the employer refuses to pay those additional medical bills.

I respectfully suggest that the rationale of the appropriate parts of the Cooley, Ducote, and Sam cases cited in the majority opinion should apply here. See also Jack v. F & C Co. of N.Y., 306 So.2d 806 (La.App.3rd Cir.1975).

I do not mean to infer in this dissent that plaintiff has no cause or right, now or in the future, in a separate action if need be, to sue for or claim payment of these additional medical bills. I only conclude that he can’t use these nonpayments to bypass the effect of La.R.S. 23:1314.


source: Caselaw Access Project

author: DOMENGEAUX, Judge.

license: Public Domain

text:
    Gayle Younce PATIN, Plaintiff-Appellant, v. Connie PATIN, Defendant-Appellee.
    No. 84-93.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1, 1985.
    See also, La.App., 453 So.2d 334.

      Stanford B. Gauthier, II, of Gauthier and Cedars, Breaux Bridge, for defendant-ap-pellee.
    Charles Brandt, Lafayette, for plaintiff-appellant.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

These proceedings eminate from the separation and the resulting partition of the community of acquets and gains which formerly existed between the parties. Although this case was decided separately from the case of Patin v. Patin, 462 So.2d 1362 (La.App. 3rd Cir.1983), the two cases have been consolidated on appeal. We will consider issues involved in both cases herein but will render a separate opinion in No. 84-807.

The reviewable issues herein deal with the trial court’s decision concerning the separation of community property pursuant to La.R.S. 9:2801.

After an extensive review of the records we have determined that this case, No. 84-93, deals with the actual partition of the community property and case No. 84-807 deals with a subsequent proceeding to make executory a judgment rendered in No. 84-93.

These proceedings originated when Gayle Patin filed a petition for legal separation on January 25, 1982. An answer was filed by the defendant.

A rule for alimony was fixed for March 5, 1982. After hearing a judgment was signed which awarded Mrs. Patin the use of the family domicile up to and until the partition of the community. The judgment further ordered the defendant-husband to continue payment of all existing community obligations except for one $500.00 annual note.

The trial for the legal separation was set and heard on May 11, 1982. As a result of that trial, a judgment was signed granting a legal separation based upon the mutual fault of the parties. This judgment also ordered the defendant, Mr. Patin, to pay all community obligations except for a $260.00 per month note and a $500.00 per year note. The judgment further ordered that an inventory of all property of the community be taken and that the property was to be partitioned in accordance with law.

On February 18, 1983, pursuant to a rule filed by defendant, the trial court ordered each party to submit sworn detailed descriptive lists and set a trial date for the traversal of each parties’ list. In due time a partition of the community was held. The judgment resulting therefrom awarded Mr. Patin the community home and awarded Mrs. Patin the community automobile and virtually all other property belonging to the community. From this judgment the wife has appealed and the husband has answered her appeal. The wife’s contention brings before us 9 alleged errors on the part of the trial court. The husband alleges 3 assignments of error.

WIFE’S ASSIGNMENTS OF ERROR

Mrs. Patin first argues that the trial court erred when it failed to order a private sale of the community home. The trial court exercising its legislatively mandated discretion under La.R.S. 9:2801, allocated the community home to Mr. Patin and ordered that Mrs. Patin be given a credit for her one-half share. This credit was ordered secured by a vendor’s lien and special mortgage.

Under La.R.S. 9:2801(4)(c) the trial court is authorized to allocate to one party or the other a particular asset, and if this results in an unequal net distribution, the court is directed to order the payment of an equalizing sum of money. This method was chosen by the trial court. It is true that La.R.S. 9:2801(4)(d) does provide that a community asset may be sold at a private sale, but the fact that the trial judge chose one method over the other is not an abuse of discretion.

Secondly, Mrs. Patin assigns as error the trial court’s award of a credit to Mr. Patin for her prior use and occupancy of the community home. In its judgment the trial court charged the wife for her use of the community home for a period of 15 months — from the date of the legal separation until the order partitioning the community.

Under La.C.C. Art. 2369, a spouse owes an accounting to the other spouse for community property under his control at the termination of the community property regime. Further, La.C.C. Art. 2364 provides that when community property has been used to satisfy the separate obligation of one spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.

The community existing between the parties was terminated by the judgment of separation and from that point on, but for her use of the community home Mrs. Patin would have been forced to pay rent, as Mr. Patin was forced to do. The funds that she would have been forced to pay as rent have remained in her control for investment purposes. This use has benefited her separate estate and Mr. Patin was properly reimbursed for one-half the value of the community property used at the time it was used to benefit Mrs. Patin’s separate estate.

The uncontradicted testimony of Mr. Robert Domingue, who was accepted by the Court as an expert in the rental value of homes, was that the rental value of the house was $750.00 a month. The trial court accepted the value and properly awarded Mr. Patín a credit for one-half of $750.00 per month.

By the third assignment of error Mrs. Patín contends the trial court erred in awarding Mr. Patín recovery out of his wife’s share, of one-half of all amounts paid by him on the house note and other community debts.

The wife lived in the community owned home and used practically all of the community owned movables, from the time the community was terminated until the signing of the judgment of partition, and although the husband was denied use of all the community property during this time he was nevertheless ordered to make these payments “in lieu of alimony”.

“Our long settled jurisprudence is that following termination of the community between a husband and wife the two parties become owners in indivisión of the immovable property which had belonged to the community; each owner in indivisión is entitled to possess or use the common property without the obligation to pay rent therefor, provided that such possession or use is not to the exclusion of his co-owner; and each co-owner has the obligation to maintain and preserve the property or, vis-a-vis each other, pay his share of the cost thereof.”

Lentz v. Lentz, 411 So.2d 59 (La.App. 4th Cir.1981) [Footnote omitted].

In the instant case the community property could not have been maintained and preserved without payment of the mortgage principal, interest, taxes, and insurance. Without payment of all of these components the property would have been lost. Accordingly, we hold the trial court correctly reimbursed Mr. Patín out of his wife’s share of the funds to be distributed, one-half of the amounts paid by him. The wife contends that no credit should have been allowed because these payments constituted alimony. It is true as pointed out by her that alimony payments are not reim-bursible even when by subsequent judgment the alimony is disallowed. Miller v. Miller, 405 So.2d 564 (La.App. 3rd Cir.1981). However, here each time the wife sought alimony pendente lite the trial court expressly denied that request. He did, however, order the husband to pay these community debts.

An order by the Court ordering one spouse to pay the community debts in order to maintain the property cannot be considered the same as alimony which must be awarded based on one spouse’s needs and the means of the other spouse. The considerations behind the two awards are different and as such the husband was properly awarded recovery for one-half of the debts he incurred to preserve the community.

In Mrs. Patin’s fourth assignment of error she contends that the trial court erred in failing to allow her a credit for the expenses she incurred to preserve the community livestock. During the existence of the marriage these parties had acquired two horses and a cow and calf.

At trial Mrs. Patín introduced receipts totalling $1,902.00 which she claimed represented veterinary expenses and feed bills incurred to feed and care for these animals.

The trial court’s judgment of partition stated that the parties had extra-judicially partitioned the two horses but awarded the wife ownership of the cow and calf.

If the wife had proven with sufficient accuracy the actual expenses incurred to preserve the community livestock during the period between the separation and the partition, we would have no difficulty in allowing her a credit for one-half of this amount. See Lentz v. Lentz, supra. However, the testimony in the record is unclear. There is evidence that some of the expenses incurred were to feed a third horse not belonging to either member of the community. We are further unable to conclude with any degree of accuracy at what point in time the parties extra-judicially partitioned the horses.

Based on the evidence in the record there is no effective way the trial court could nor can we arrive at a realistic figure as to what was actually spent by the wife to preserve the community livestock. She has thus failed in her burden of proof and she was properly denied a credit for these expenses.

By her fifth assignment of error Mrs. Patín claims the trial court erred in allowing a credit to the husband for her sale of two items which belonged to the community-

One item of credit which was given to the husband was for the sale of a color television by the wife. This occurred because the television had been repaired at Sears. Because the wife did not have the money to pay the bill, she sold the television set to one of the personnel at Sears to pay the debt. The other item of credit given to the husband was for the sale of a Kohler welding machine. Mrs. Patín testified that a man by the name of Curtis Maturin had, in December of 1981, performed some work on a horsetrailer. Mrs. Patín further testified that because Mr. Patín refused to pay the bills she was forced to give Mr. Maturin the welding machine to pay the debt.

The record clearly establishes that the articles alienated were community property. The record further establishes the articles were given in payment of community debts. Both expenses were incurred prior to the termination of the community.

It is an elementary point of law that obligations incurred during the existence of the community for the common interest of the spouses are community obligations. La.C.C.Art. 2360 and La.C.C. Art. 2361. Further, one spouse may dispose of movable community property acting alone to satisfy a community obligation. La.C.C. Art. 2345.

In this case Mrs. Patín has simply done what the law allows her to do and the trial court was incorrect in allowing Mr. Patín a credit for the alienation of the television set and the welding machine. Even though the sale of this community property resulted in a reduction of the community’s assets the actions also reduced the community’s liabilities and the net value of the community remained the same. We must therefore reverse that part of the judgment which awarded Mr. Patín a $450.50 credit for the sale of these community assets.

By her sixth assignment of error Mrs. Patín claims the trial court erred in classifying certain hand tools as the husband’s separate property.

Both parties testified that Mr. Patín owned certain hand tools before the marriage. In view of this testimony, and in the absence of additional circumstances the hand tools would be considered separate property brought into the marriage by one of the spouses. Cookmeyer v. Cookmeyer, 274 So.2d 739 (La.App. 4th Cir.1973). Mrs. Patín attempted to establish that these tools were given away and others were purchased. The trial judge evidently did not believe this.

The trier of fact who has the unique advantage of viewing testimony when given is not to be reversed on an evaluation of credibility which furnishes the basis for the trial court finding of fact unless that finding of fact is “manifestly erroneous”. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Because both parties stated that the hand tools were possessed before the marriage and because the testimony regarding the subsequent transfer is uncorroborated we cannot say that the trial court’s determination was manifestly erroneous. The trial court properly ruled that these hand tools were Mr. Patin’s separate property which he brought into the marriage.

By her seventh assignment of error Mrs. Patín claims the trial court erred in its failure to allocate, value or otherwise dispose of a 9 piece dining room set.

Both parties listed the dining room set in their descriptive list. Further, at trial both parties testified as to the purchase of the dining room set, however, the trial court did not address itself to the issue of what disposition should be made of this furniture.

Because we do not have sufficient evidence before us to make a proper distribution of this matter we are forced to remand the issue to the trial court to conduct further proceedings: (1) To determine the value of the 9 piece dining room set; (2) To determine any amount remaining owed on the set; and (3) To make proper disposition of the matter in accordance with La. R.S. 9:2801.

By her eighth assignment of error Mrs. Patin claims the trial court erred in not valuing the assets of the community as of the date of the trial on the merits. She contends that the value used was as of the date of separation. This is without merit. At the time of the trial on the merits for the partition, Mr. William 0. Clause was accepted by the trial court as an expert appraisor. Mr. Clause had previously made an inventory and valuation of the community. His uncontradicted testimony was that the values placed on the inventory he performed would be the same on the day of the trial on the merits. We hold this is sufficient to comply with the mandate of La.R.S. 9:2801(4)(a) that the assets of the community be valued at the time of the trial.

The last issue presented for our review concerning Mrs. Patin’s interest in the community property involves the ownership of the 1978 Ford Bronco awarded her in the property settlement.

After the community was terminated, but during the pendency of the partition proceedings Mrs. Patin wrecked the 1978 Ford Bronco which was later awarded to her in the property settlement. ,

The automobile was towed from the scene of the accident by Domingue Motors. Because Mrs. Patin did not pay the storage and towing fees on the vehicle, Domingue Motors applied for and was granted a permit to sell the vehicle pursuant to La.R.S. 32:521.

Mr. Patin purchased the vehicle from Domingue Motors and subsequent thereto the proceedings styled “Connie Lee Joseph Patin v. Gayle Patin” (Our Docket No. 84-807) was instituted. After hearing, the trial court properly concluded the vehicle was the separate property of Mr. Patin, and although Mrs. Patin perfected an appeal from that judgment neither party has briefed the issue on appeal and it is thus considered abandoned. See Rule 2—8.6, Uniform Rules, Court of Appeal (West 1984).

HUSBAND’S ASSIGNMENTS OF ERROR

In answering the wife’s appeal the husband has alleged three errors committed by the trial court.

In his first assignment of error the husband claims that the trial court erred in not classifying or awarding a 9 piece dining room set and a set of encyclopedias. We have previously discussed the dining room set. Further, neither party listed the encyclopedias on their descriptive list as required by La.R.S. 9:2801(1) and thus that issue was not brought before the trial court and it is not reviewable by us now. Further, on appeal Mr. Patin claims the encyclopedias are his separate property and there is no traversal of that contention by Mrs. Patin.

Mr. Patin’s second assignment of error involves the credit he was given for Mrs. Patin’s occupancy of the community home during the pendency of these proceedings. We have previously decided that issue in the wife’s second assignment of error.

By his third assignment of error Mr. Patin claims the trial court erred in classifying as community property certain items of furniture, those items of furniture being a coffee table, end tables, a den set, a settee, and a chair.

“The settled rule of law is that property acquired during marriage is presumed to fall into the community of acquets and gains existing between the spouses. La. C.C. Arts. 2334, 2402. At the time of the dissolution of the marriage, all effects which both husband and wife reciprocally possess are presumed to belong to the community, unless it be satisfactorily proved which of such effects they brought into the marriage, of which have been given them separately, or which they have respectively inherited. La.C.C. Art. 2405; Bruyninckx v. Woodward, 217 La. 736, 47 So.2d 478 (1950).”

After a review of the record we conclude as did the trial judge that these items of furniture belong to the community-

For the reasons herein set out the judgment appealed from is reversed insofar as it allowed Mr. Patin a credit in the amount of $450.50 out of his wife’s share of the funds to be distributed for the sale of the television set and the welding machine. The case is further remanded to the trial court to conduct further proceedings: (1) To determine the value of the 9 piece dining room set; (2) To determine any amount remaining owed on the set; and (3) To make proper disposition of the matter in accordance with La.R.S. 9:2801. In all other respects the judgment of the trial court is affirmed. All costs of this appeal in No. 84-93 are assessed equally between the parties.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.


text:
    Connie Lee Joseph PATIN, Plaintiff-Appellee, v. Gayle Younce PATIN, Defendant-Appellant.
    No. 84-807.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1, 1985.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

For the reasons stated in Patin v. Patin, 462 So.2d 1356 (La.App. 3rd Cir.1984), handed down this date, the judgment of the trial court is hereby affirmed. All costs of this appeal are assessed against appellant, Gayle Younce Patin.

AFFIRMED.


author: YELVERTON, Judge.

text:
    TIOGA/TRIPLE R CORPORATION PARTNERSHIP, Plaintiff-Appellee, v. RAPIDES AREA PLANNING COMMISSION, et al., Defendants-Appellants.
    No. 84-97.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Gus Voltz and Edwin 0. Ware, Alexandria, for defendants-appellants.
    Gold, Little, Simon, Weems & Bruser, Donald Sharp, Alexandria, for plaintiff-ap-pellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

The Rapides Area Planning Commission and the Rapides Parish Police Jury, defendants below, appeal a judgment of the district court ordering them to grant to plaintiff, Tioga/Triple R Corporation Partnership, a building permit to construct an apartment complex in an unzoned area of Rapides Parish. The initial rejection of the application for the permit, which brought on the lawsuit, was found by the district judge to have been arbitrary and capricious; hence the order that the application be granted. We affirm.

The basic factual and procedural background is uncomplicated. Tioga/Triple R Corporation Partnership, the owner of some land near Tioga in Rapides Parish, planned to build a 42-unit apartment complex on the property, to be known as Country View Apartments. The project was to contain its own sewage treatment plant. The builders followed the usual procedure for obtaining the required governmental permits. They acquired a permit from the Louisiana State Fire Marshall, approving the plans. They also obtained a permit from the Department of Health & Human Resources, approving the sewage treatment plant and planned discharge system. They also got a permit from the Louisiana Department of Transportation granting permission for the discharge of the treated sewage effluent into the highway drainage ditch along Louisiana Highway 71.

Armed with these plans and permits, the plaintiff submitted its proposed construction project for approval to the Rapides Area Planning Commission, as required by local ordinance. The application was analyzed by a committee, headed by Jan James, senior planner for the Rapides Area Planning Commission, and the committee recommended approval. Despite this recommendation, at a public hearing conducted by the commission, at which some area property owners appeared in opposition, the commission voted to disapprove the plans. The developers then appealed to the Rapides Police Jury, as was their right under the ordinance, and, after a public hearing at which the area property owners again appeared in opposition, the Police Jury also disapproved the project.

The partnership then filed suit to compel these public bodies to grant the application, alleging in the petition that the application was in compliance with all applicable local ordinances and State regulations, and that the planning commission and Police Jury, in rejecting the application without giving reasons and having no valid reasons, had acted arbitrarily and capriciously. After a full hearing and after considering substantial testimony, the trial court found that all legal requirements, both state and local, had been complied with by the plaintiff. The trial court concluded that the action of the commission and Police Jury in denying the building permit was arbitrary and capricious. It granted the relief sought by the plaintiff and ordered these two public entities to grant their approval.

In their appeal from this judgment, the Police Jury and the planning commission now assign three reasons allegedly supporting their denial of the building permit, and urge the same three reasons as assignments of error. They contend: (1) the proposed drainage of the sewage effluent could cause a health hazard; (2) the area in which the project was to be built has inadequate fire protection; and (3) the plaintiff failed to produce conventional servitudes for the proposed discharge of the sewage effluent into public ditches and across private property.

The evidence shows that the sewerage plans, approved by both the State health and highway officials, would utilize the public ditch on the east side of Louisiana Highway 71. The health officials made the requirement that the course of the effluent be restricted to that ditch. The course would not be contained in the drainage ditch along the highway, but would eventually leave the highway ditch and make its way down various ditches and bayous until it emptied into Flagon Creek. The discharge would amount to 16-17,000 gallons a day. The developers had obtained no rights of way or servitudes other than the highway permit. There was no evidence that any servitudes from private individuals had been acquired for drainage from the highway ditch to Flagon Creek.

The property owners who objected to the building permit were persons who lived on Louisiana Highway 71. These persons testified generally that the addition of effluent into the roadside ditch would create drainage problems. One member of the Police Jury testified that his vote was influenced by the belief that drainage problems would occur.

The record in this case does not support a finding that any health hazard would be created by the discharge of effluent into the drainage ditch. Vernon Parker, the director of the Division of Environmental Health for the Department of Health & Human Resources testified that the sewage treatment plant and discharge of effluent met the requirements under state law and that the drainage of the effluent posed no health hazard to the community. It was his opinion that problems might occur only if the ditches became stopped up or improperly maintained. This was unlikely, however, because he stated that the Department of Health & Human Resources would monitor the flow of discharge periodically and if any problems occurred, the department would revoke the plaintiffs permit to discharge the effluent in the ditch. Further testimony revealed the 16-17,000 gallon daily discharge would go unnoticed. Melvin Jackson, an administrator for the Department of Transportation testified that the department would modify the drainage ditches to insure the effluent would stay on the east side of the highway as required by the health department’s permit.

Based on this evidence, and on the proven fact that the plaintiff had complied with state law, the defendants could not unconditionally deny plaintiff’s use of property because of the possibility of health hazards which could be satisfactorily prevented by modifying the present condition of the drainage ditch and periodic monitoring by state agencies. See Bode v. Parish of Jefferson, 309 So.2d 730 (La.App. 4th Cir.1975) for an analogous situation. Therefore, the first assignment of error is without merit.

The second assignment of error, the fire protection argument, is equally without merit. Although the State Fire Marshall approved the plans, the local fire chief for the Alpine Volunteer Fire Department testified that the new apartment complex would be in his area of responsibility, and that his equipment was inadequate to fight a fire at the proposed construction project. However, the fire fighting capability of this volunteer department, the evidence shows, was limited even as to the existing structures. While the defendants offered fairly persuasive testimony that the local fire department was inadequately equipped to fight a major fire at the apartment complex, we can find nothing in the law supporting this objection as sufficient to justify a denial of a permit for a use of property not otherwise prohibited by law. In the present case the record fails to reveal any zoning laws or local ordinances which would prohibit this contemplated use. Almost as surplusage, the plaintiff also introduced an approving certificate from the state fire marshall’s office.

The defendant’s final argument is that the plaintiff failed to produce any conventional servitudes for the discharge of effluent into public ditches and across private property. The initial discharge of effluent goes into the highway right of way ditch along Highway 71. The plaintiff offered into evidence permits from the State Department of Transportation & Development and the Department of Health & Human Resources authorizing this use of the highway ditch. Obviously, the plaintiff has met the requirements of the state regulatory agencies for the discharge of effluent into the public ditch.

However, defendants argue that since the effluent, once it enters the public ditch, must flow across private property before reaching Flagon Creek, there then occurs a violation of La.Civil Code arts. 655-658, dealing with natural drainage, and that defendants should have obtained a conventional servitude from the owners of these lands before being permitted to discharge the effluent into that part of the natural drainage system.

The trial court ruled that the defendants could not assert the private rights of these landowners since they were not parties to the suit. ’ The defendants, relying on the case of Terrebonne Parish Police Jury v. Matherne, 405 So.2d 314 (La.1981), cert denied 456 U.S. 972, 102 S.Ct. 2234, 72 L.Ed.2d 845 (1982), argue that the trial court erred in this ruling. In the Matherne case, the parish governing authority sought to enjoin a landowner from diverting his property’s drainage from its natural flow and destination into a parish drainage project, because the diversion of the natural drain impaired the efficiency of the public drainage system. Because the record did not establish that the police jury was owner of a servient estate or neighboring property overburdened by the defendant’s activities, the Supreme Court considered the police jury’s standing to bring suit. It found that the police jury had standing to bring suit under LSA-R.S. 38:113, which gives control to local governing bodies over all public drainage channels within the limits of their districts, and concluded that the public drainage ditch in question was under the control of the police jury.

In the present case no evidence was presented to establish that the drainage ditches running through private property were public drainage channels under the control of the defendants. There was testimony by Paul Morrow, a police jury member, that the police jury had on occasion cleared out the drainage ditches. However, Mr. Morrow’s further testimony revealed that these ditches were not considered its responsibility since the parish had no funds or tax allocated to maintain them. This testimony was insufficient to establish that the police jury had control over the channels as authorized by R.S. 38:113. Therefore, the trial court’s ruling that the police jury could not assert the rights of the private property owners was correct.

For the reasons given above, the judgment of the trial court is affirmed, appellants to pay costs of this appeal.

AFFIRMED.


author: DOUCET, Judge.

text:
    Vern KILGORE, Plaintiff and Appellant/Appellee, v. WESTERN CASUALTY & SURETY COMPANY, Defendant and Appellee/Appellant.
    No. 84-114.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 1, 1985.
    W.T. Armitage, Alexandria, plaintiff-ap-pellee.
    James D. Davis, Alexandria, for plaintiff and appellant, appellee.
    Trimble, Percy, Smith, Wilson, Foote, Walker & Honeycutt, H. Gregory Walker, Jr., Alexandria, for defendant and appellee, appellant.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   DOUCET, Judge.

Vern Kilgore brought this workmen’s compensation suit against his employer’s insurer, Western Casualty and Surety Company (Western) seeking total and permanent disability benefits and statutory penalties and attorney’s fees. The trial court held that the plaintiff sustained a disabling injury in a job-related accident but concluded that the duration of the disability was not permanent but only for sixty weeks. No statutory penalties or attorney’s fees were awarded. The plaintiff perfected a devolutive appeal and the defendant perfected a suspensive appeal.

The plaintiff was employed by Western’s insured, Hemphill Construction Company, during the Spring and early Summer of 1982. Mr. Kilgore claims that on Thursday, June 10, 1982, he injured his back while lowering a bucket of wet cement to a co-worker in a sewer manhole. The plaintiff continued working on the day of the alleged accident and completed the workday on the following Friday. On the subsequent Monday, the plaintiff went to the emergency room of the Veterans’ Administration Hospital in Alexandria, La., where he was briefly examined and scheduled for an appointment with an orthopedic specialist. Worker’s compensation benefits for a total disability were commenced on this day. On July 8, 1982, the plaintiff was examined by Dr. Jorge Sanchez at the VA Hospital who noticed some muscle spasms and general tenderness in the lower back region. X-rays were taken and Dr. Sanchez prescribed pain medication and muscle relaxers along with rest. On the second visit on July 29, 1982, Mr. Kilgore told Dr. Sanchez that his back had improved and Dr. Sanchez noted that there were no movement limitations. Dr. Sanchez noted from the X-rays that Mr. Kilgore had a degenerated condition in the discs of his lower spine. However, in his deposition, Dr. Sanchez said that it was doubtful that this condition was induced by the alleged trauma of June 10, 1982. Dr. Sanchez instructed Mr. Kilgore that he could try to return to work because he did not detect any serious problems and Mr. Kilgore had said that his condition had improved. Workmen’s compensation payments were terminated at this point based on Dr. Sanchez’ recommendation.

Mr. Kilgore never returned to work but instead, moved to Houston, Texas to live with his son in August of 1982. In November of 1982, Mr. Kilgore worked for Norton and McNaughton Pipeline Co. in Houston for about two weeks as a general helper in the pipe yard until he was unable to continue because of alleged back problems. Mr. Kilgore then moved to Ann Arbor, Michigan where he remained unemployed. In February of 1983 Mr. Kilgore was examined by Dr. George Ferre while he was in Michigan. Dr. Ferre, who is an orthopedic specialist, observed the same spinal condition detected by Dr. Sanchez along with a pinched nerve. However in his deposition, Dr. Ferre stated that Mr. Kilgore’s spinal disc problem could have possibly been induced by trauma. Also, Dr. Ferre stated unequivocally that Mr. Kilgore was unable to work in the capacity in which he was accustomed. An examination conducted on the day of the deposition confirmed this diagnosis.

In June of 1983, Mr. Kilgore returned to Houston, Texas where he remained unemployed. On May 31,1983, he instituted this action seeking permanent and total disability benefits. Compensation payments were made from the initial visit to the VA Hospital on June 14, 1982 until Dr. Sanchez suggested that he return to work on July 30, 1982. Thus, the plaintiff is seeking the alleged accrued benefits from the date of their termination, along with penalties and attorney’s fees.

A trial was conducted on the matter in which only Mr. Kilgore testified. All other testimony was submitted to the court by deposition. Mr. Kilgore testified that as he was lowering a bucket of wet cement into the manhole, the rope slipped, forcing him to suddenly grab the rope. The suddenness of the move along with the impact of the weight, according to Mr. Kilgore, wrenched his back. Mr. Kilgore added that his back problem began after this incident and that this condition neither improved nor worsened to any significant extent since the alleged accident on June 10, 1982. Mr. Michael Frank, who was Mr. Kilgore’s co-worker on the day of the alleged accident, was deposed and his deposition was submitted to the trial court. Mr. Frank testified that he did not recall the accident that Mr. Kilgore described as the cause of his back problems.

The trial court concluded that the variety of back problems from which Mr. Kilgore suffers were not caused by the alleged accident on June 10, 1982. However, the trial court held that the plaintiff did sustain some work-related back trauma from the accident and awarded Mr. Kilgore total disability benefits for sixty weeks. In fixing the amount, the trial court ignored a pretrial stipulation which set the amount at $167.00 and fixed the monthly amount at $204.00. The trial court also held that no penalties or attorney’s fees were appropriate and awarded the medical costs of Dr. Ferre’s fee and all of the costs of the litigation to Mr. Kilgore.

The plaintiff perfected a devolutive appeal wherein he argues that the trial court erred in failing to find that the accident is the cause for Mr. Kilgore’s permanent disability and in refusing to assess penalties and attorney’s fees. The defendant perfected a suspensive appeal wherein it contended that the trial court was manifestly erroneous in concluding that there was a work-related accident. The defendant also contends that the trial court erred in concluding that the duration of the disability was sixty weeks if there was a disabling accident. Finally, the defendant contends that to ignore the pre-trial stipulation that fixed the claimant's salary was an error.

The claimant in a workmen’s compensation case must establish by a preponderance of the evidence three elements of proof in order to recover disability benefits; (1) That the claimant sustained a job-related personal injury; (2) That the claimant was/is disabled; and (3) That the disability is causally related to the injury sustained in the job-related accident. Gallien v. Supreme Contractors, Inc., 448 So.2d 871 (La.App. 3rd Cir.1984); Bateman v. Power Rig Rental Tool Company, 453 So.2d 998 (La.App. 3rd Cir.1984). In every case the totality of the evidence, medical and lay, must be examined by the court in making its determination of whether to grant a disability award. Crawford v. Al Smith Plumbing and Heating Service, Inc., 352 So.2d 669 (La.1977); Latiolais v. Home Insurance Company, 454 So.2d 902 (La.App. 3rd Cir.1984). On appellate review the trial court’s factual findings are entitled to great weight and will not be disturbed on appeal absent clear error. Culp v. Beldon Corp., 432 So.2d 847 (La.1983); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The trial court concluded that Mr. Kilgore did sustain disabling injuries in a work-related accident. The defendant contends that the trial court was manifestly erroneous in so holding. In support of this contention, the defendant notes the testimony of Mr. Frank who very firmly stated that no such accident occurred creating a direct contradiction between this testimony and the testimony of Mr. Kilgore. Great weight is afforded to the findings of the trial court with regard to the credibility of the plaintiff in a workmen’s compensation proceeding. Joseph v. Martin Mills, Inc., 394 So.2d 722 (La.App. 3rd Cir.1981). Although the trial court stated that it learned very little from the plaintiff’s testimony, it was apparently sufficiently satisfied with his credibility to conclude that a disabling injury occurred. It should be noted that only the plaintiff testified in open court while the testimony of Mr. Frank was reviewed by deposition. Accordingly, the trial court was unable to view Mr. Frank’s testimony thereby giving greater weight to the plaintiff’s testimony. Although there are perhaps other more reasonable conclusions to be drawn from this evidence, this factual conclusion is not clearly wrong and therefore will not be disturbed on appeal.

The second element of proof in a workmen’s compensation claim is the establishment of a disability. In the instant case the plaintiff is obviously suffering from a deteriorating back condition. This fact is amply supported by the record. The trial court took specific notice of the plaintiff’s plight and expressed its sympathy. The crucial issue, however, is the establishment of the causal connection between the disability and the job-related accident. The trial court held that Mr. Kilgore’s various back ailments were not caused by the accident on June 10, 1982. The trial court instead held that the work-related back problems “should have been resolved by September of 1983”. The plaintiff argues that the court erred in concluding that the work-related disability was not permanent while the defendant contends that the trial court erred concluding that the plaintiff’s disabilities subsequent to the termination of compensation payments were work-related.

On appellate review, the trial court’s factual findings with regard to the issue of disability are entitled to great weight and will not be disturbed absent clear error. Culp v. Belden Corp., supra. A review of the record indicates that the trial court was clearly wrong in its conclusion regarding the duration of Mr. Kil-gore’s work-related disability. There is nothing in the record to suggest that a work-related disability would have been resolved by September of 1983. This date seems to have been arbitrarily fixed. The trial court correctly concluded that the full range of disabilities were not work-related but was manifestly erroneous in concluding that the claimant’s disabilities subsequent to July 29, 1984 were work-related. Much of the claimant’s activities subsequent to this date are not accounted for in the record. There were no reasons given why the plaintiff did not return to work as his physicians suggested. We are mindful of the fact that the claimant does suffer from a debilitative back condition but we are not convinced that it was caused by a work-related accident. Any disability subsequent to July 29, 1984 was not work-related and thus not compensable. It is with reluctance that we reverse a trial court’s factual conclusion with regard to disability but in this case the record justifies our conclusion. Gauthier v. Helmerich & Payne Drilling, 401 So.2d 692 (La.App. 3rd Cir.1981). We hold that the trial court was manifestly in error in concluding that the plaintiff was disabled beyond the time that Western terminated compensation benefits.

Because we hold that the plaintiff is not entitled to any additional compensation payments, the issue of penalties and attorney’s fees along with the pre-trial stipulation need not be addressed. We hold that the trial court was not clearly wrong in concluding that the claimant’s many back afflictions are not work-related. However, the trial court clearly erred in granting benefits beyond the date of the claimant’s discharge by Dr. Sanchez. The plaintiff is cast with the costs of Dr. Ferre’s fees and also with the cost of his deposition.

For the foregoing reasons the judgment of the trial court is affirmed in part and reversed in part. Both parties are cast with the cost of this appeal.

AFFIRMED IN PART, AND REVERSED IN PART.


author: GUIDRY, Judge.

text:
    STATE of Louisiana v. Jimmy Leroy SEE.
    No. CR84-357.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

Defendant, Jimmy Leroy See, was charged with the crime of armed robbery, in violation of La.R.S. 14:64, our docket number Cr84-357. Defendant was also charged by a separate bill of information with the crime of attempted second degree murder, in violation of La.R.S. 14:27 and La.R.S. 14.30.1, our docket number Cr84-358. These matters were consolidated at the trial level. We have chosen this case for our opinion, but render a separate judgment in the consolidated matter of State v. See, 462 So.2d 1373 (La.App. 3rd Cir.1985).

Defendant plead not guilty to both the armed robbery charge and the attempted second degree murder charge. On September 19, 1983, defendant changed his plea to guilty on the charge of attempted second degree murder. In accordance with a plea bargain agreement entered into between defendant and the State, the information charging defendant with the crime of armed robbery was amended to charge defendant with the crime of aggravated burglary (La.R.S. 14:60). Thereafter, defendant plead guilty to the amended information. After defendant was thoroughly Boykin-ized, the trial court accepted his guilty pleas and ordered a pre-sentence investigation.

On March 1, 1984, defendant was sentenced to twelve years at hard labor for the offense of aggravated burglary and to forty years at hard labor, without benefit of parole, probation or suspension of sentence, for the offense of attempted second degree murder. The sentences were ordered to run concurrently.

Defendant appealed designating three assignments of error, viz:

1. The trial court erred in failing to properly apply the sentencing guidelines set forth in La.C.Cr.P. Art. 894.1.
2. The trial court erred in failing to state for the record the considerations taken into account and the factual basis therefore, in imposing sentence on defendant, as required by La.C.Cr.P. Art. 894.1(e).
3. The trial court erred in imposing an excessive and arbitrary sentence.

ASSIGNMENTS OF ERROR 1, 2 AND 3

The defendant contends that the sentences imposed by the trial court are excessive and violative of Art. 1, § 20 of the Louisiana Constitution of 1974. He also contends that the trial judge failed to comply with La.C.Cr.P. Art. 894.1, which provides guidelines to be followed by the trial judge in imposing sentence. We find no merit to the assignments of error and affirm.

The facts surrounding the crimes are set out in the trial judge’s written reasons for judgment as follows:

“The facts of the case are that on or. about June 29, 1983, Defendant-See and Roger Clayton Price went to the home of Mr. Honer (sic) Henderson, an 83 year old white man, who lived alone in (sic) home in Converse, Sabine Parish, Louisiana, for the purpose of stealing his automobile. Before approaching the residence of Mr. Henderson Defendant-See handed his pocket knife to Roger Clayton Price. Defendant-See and Price went to the front door of the home and Defendant-See knocked on the front door, and, when Mr. Henderson came to the door, asked for a drink of water. Mr. Henderson obtained a glass, and opened the front door to hand him the drinking glass, and pointed to an outside water faucet, at which time Price forced his way into the home, by pushing Mr. Henderson backwards, with Defendant-See right behind him. Price then knocked Mr. Henderson down by striking him in the mouth with his fist, and both Defendant-See and Price beat Mr. Henderson with their fists. Price then jumped on Mr. Henderson and held him down by sitting on his stomach and holding the open knife to Mr. Henderson’s throat. Defendant-See obtained the keys to Mr. Henderson’s car, went outside, started the car, returned inside, grabbed Mr. Henderson’s shotgun from a place where it was leaning against the wall, demanded money of Mr. Henderson, which demand was not successful. Defendant-See then struck Mr. Henderson repeatedly about the face and head with the butt of the shotgun, and Price cut Mr. Henderson’s throat with the knife, causing a bad cut which bled profusely, and then Defendant-See and Price left Mr. Henderson lying on the floor, took his shotgun, went outside, got into Mr. Henderson’s car, and left with the stolen shotgun and car.
They were later apprehended in Texas, following a chase in which the automobile was demolished in a wreck, while they were attempting to escape law enforcement officers. They both waived extradition and were returned to Louisiana.
Mr. Henderson’s injuries were extensive, severe and painful. He was hospitalized for a considerable period of time, in serious condition. He is stiff (sic) suffering from the experience, and, among other things, now wears eye glasses, due to vision problems which he did not have before being beaten. Since being released from the hospital he resides in the home of a daughter, in Texas, who is caring for him.
His total medical expenses were approximately $100,000.00. His hospital bilis alone exceeded $68,000.00.”

La.C.Cr.P. Art. 894.1 enumerates aggravating and mitigating factors to be considered by the trial court in imposing sentence, and requires that the trial judge “state for the record the considerations taken into account and the factual basis therefor in imposing sentence.” The purpose of the statute is to afford a reviewing court some insight into the reasoning process of the sentencing judge, so that the propriety of the sentence can be better evaluated. State v. Price, 403 So.2d 660 (La.1981). The trial judge need not state for the record his consideration of each of the aggravating and mitigating circumstances enumerated in the article. However, the record must reflect that the judge did consider these guidelines in particularizing the sentence to the defendant. State v. Quebedeaux, 424 So.2d 1009 (La.1982). The record should reflect that the trial court considered not only the seriousness of the crime and the defendant’s criminal history, but also the defendant’s personal history (age, mental status, dependents, family ties, employment record, emotional and physical health), and his potential for rehabilitation. State v. Quebedeaux, supra; State v. Jones, 398 So.2d 1049 (La.1981). The judge should indicate that he considered not only the factors militating for incarceration, but also any factor mitigating against it. State v. Ray, 423 So.2d 1116 (La.1982).

Defendant argues specifically that the trial court failed to comply with the statutory guidelines of Article 894.1 by failing to enumerate existing mitigating circumstances. We disagree. The record clearly reflects that the trial judge did consider all of the circumstances applicable before deciding upon the sentences imposed. At the sentencing hearing, the following transpired between the defendant’s attorney, Mr. Dyess, and the trial judge:

“MR. DYESS: ... I would at this time point out to the Court that the offender before the Court this morning, Jimmy Leroy See, is presently aged twenty-two, is young, and secondly, Your Honor, I would point out to the Court that the Pre-Sentence reflects that his employment record was a pretty steady employment record and at one time he was a Supervisor on the job in construction.
THE COURT: Thank you, Mr. Dyess. Of course, the Court has carefully studied the Pre-Sentence Report and has considered the facts in this case and has considered the sentencing guidelines that have been set forth in Code of Criminal Procedure Article 894.1.”

Additionally, in his written reasons for sentencing, the trial judge thoroughly enumerated the factors which he considered in imposing the sentences. While it is true that the trial judge devoted a considerable amount of space discussing the aggravating circumstances which he considered, he did, in fact, also note the age of the defendant as well as his potential for rehabilitation. Our review of the record prompts us to conclude that the trial court did adequately comply with the guidelines set forth in La.C.Cr.P. Art. 894.1.

Finding that the sentencing'guidelines have been adequately considered, our standard of review is stated as follows:

“... [a] sentence will not be set aside as excessive absent manifest abuse of the trial judge’s sentencing discretion. State v. Spencer, 374 So.2d 1195 (La.1979); State v. Sepulvado, [367 So.2d 762 (La.1979)], supra. The penalty imposed must be so disproportionate to the crime committed, in light of the harm caused to society, as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980); State v. Goode, 380 So.2d 1361 (La.1980).”

State v. Smack, 425 So.2d 737, 740 (La.1983).

We do not find that a sentence of twelve years at hard labor for the crime of aggravated burglary nor a sentence of forty years for the crime of attempted second degree murder, under the facts of the present case, shocks our sense of justice.

Under the offense of aggravated burglary, to which defendant plead guilty, he was subjected to a possible 30 year term of imprisonment at hard labor. La.R.S. 14:60. For the offense of attempted second degree murder, defendant was subjected to a possible 50 year term of imprisonment at hard labor, without benefit of parole, probation, or suspension of sentence. La.R.S. 14:27 and La.R.S. 14:30.1. In total, defendant was subjected to a possible maximum sentence of 80 years. He was sentenced to serve one-half of the possible term of imprisonment. We find that the penalties imposed are appropriate both to the offenses and the offender. Therefore, these assignments are without merit.

For the foregoing reasons, defendant’s convictions and the sentences imposed are affirmed.

AFFIRMED.


text:
    STATE of Louisiana v. Jimmy Leroy SEE.
    No. CR84-358.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

For the reasons set forth in the consolidated matter of State v. See, 462 So.2d 1369 (La.App. 3rd Cir.1985), in which a separate decision is being rendered by us this day, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Roscoe JONES, Jr., Defendant-Appellant.
    No. CR84-542.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 12, 1985.

      Mark Delphin, Delphin & Granger, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Charged with armed robbery, defendant, Roscoe Jones, Jr., was convicted by a jury of simple robbery. The State then filed an information against him under the multiple offender provisions of La.R.S. 15:529.1. The trial court adjudicated defendant a fourth offender and sentenced him to life imprisonment without benefit of probation, parole or suspension of sentence. The defendant appeals, presenting six assignments of error, the first three having to do with alleged trial errors in the simple robbery conviction, and the last three having to do with his sentencing as an habitual offender. Finding no merit to any of the assignments of error, we affirm the conviction and the sentence.

Early in the morning of December 14, 1982, between the hours of 3:00 and 4:00, Walter Richard reported to the Lake Charles City Police that he had been struck in the head and robbed. According to Richard’s testimony, he had just stopped at a Wizard Fas-Stop on the corner of Broad and Enterprise Boulevard to buy some gas. After the purchase, he drove up Enterprise Boulevard, and there picked up a hitchhiker, the defendant, who asked for a ride to the Sunlight Manor Apartments. During the short ride to the apartment house the defendant tried to sell Richard a small fire extinguisher which defendant was holding in his hand, but Richard did not want to buy the fire extinguisher. As they approached the Sunlight Manor, the defendant suggested that Richard might want to buy a revolver from him that defendant claimed to have in his apartment. When Richard refused to buy the gun, the defendant told him that was just too bad. The defendant then struck Richard in the head with the fire extinguisher, grabbed his wallet, pulled the keys from the ignition of the victim’s pickup truck, and fled. Richard testified that he had about $38 in his wallet at the time. Neither the wallet nor the money was ever returned to him.

Defendant was charged with the crime of armed robbery, a violation of R.S. 14:64. The jury returned a verdict of simple robbery, a violation of R.S. 14:65. Defendant’s three assignments of error pertaining to this conviction were (1) the denial of his motion to suppress the use of prior convictions for impeachment purposes, (2) the denial of his motion for production of favorable evidence, and (3) the contention that the verdict of the jury was contrary to the law and the evidence.

ASSIGNMENT OF ERROR NO. 1

Defendant had a long criminal record. Under La.R.S. 15:495, evidence of convictions of crimes is admissible for the purpose of impeaching the credibility of a witness if the witness, after having been questioned as to such convictions, fails distinctly to admit them, and this provision applies to any witness, whether a defendant or not.

By a motion to suppress, the defendant sought a ruling from the trial court forbidding the use of his prior convictions for impeachment purposes at the trial, contending that R.S. 15:495 is unconstitutional. His argument then, and now, is that the State’s possible use of his prior convictions, if he had taken the stand, deprived him of his right to a fair trial, his right to prepare and present a defense, and his right to due process of law. His argument was that he could not afford to take the stand and present his defense because of the effect that disclosure of his prior criminal record would have on the jury.

At the trial, defendant elected not to take the stand and testify in his own defense.

The Louisiana Supreme Court examined the constitutionality of La.R.S. 15:495 in State v. Prather, 290 So.2d 840 (La.1974), saying:

“Our jurisprudence is uniform in holding that a witness who takes the witness stand in his own behalf waives his privilege against self incrimination, and is subject to cross-examination and impeachment in the same manner as any other witness....”

The Prather decision was recently followed in State v. Willie, 410 So.2d 1019 (La.1982), where the court said:

“Defendant urged, in his motion for a new trial, that the trial court erred in not granting his motion to restrain the district attorney from using prior convictions on cross examination. It was argued that Robert Willie would be inhibited from testifying in his own behalf unless the court were to restrain the district attorney from using prior convictions to impeach Willie’s credibility. We find no error in the trial court’s denial of this motion. La.R.S. 15:495; Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967); State v. Prather, 290 So.2d 840 (La.1974).”

These cases answer the contention of defendant regarding the constitutionality of R.S. 15:495. In light of this jurisprudence, the trial court properly denied the defendant’s motion to suppress the use of his prior convictions. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 2

Two weeks before trial the defendant moved for the production by the district attorney of “any record of the criminal arrests and convictions of one Walter Richard, the victim or complaining witness in this case.” The request specifically included any National Crime Investigation Center reports. The trial judge granted the motion and the district attorney, at the trial of the case and in open court, declared that he had checked with the local sheriff’s office and also with the NCIC and that the victim, Walter Richard, had no criminal record whatsoever. Being satisfied that the district attorney’s response to the motion to produce was a sufficient compliance with the court order, and that the production of a blank NCIC report with Walter Richard’s name on it was unnecessary, the trial court accepted the prosecutor’s explanation as sufficient compliance with its order.

During the trial the victim, Richard, when asked on cross examination if he had a record of convictions, admitted a DWI 10 to 12 years earlier. The defendant now contends, having objected to the trial court’s refusal to order an NCIC report, whether blank or not, that Richard may have had other convictions, such as perjury, and that his admission of the DWI supports the argument that the district attorney might have been in error, and that an NCIC report was the only way that his right to the production of favorable evidence could be fully protected.

In State v. Landry, 381 So.2d 462 (La.1980) our Supreme Court recognized a defendant’s entitlement to the production of favorable evidence under United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), but observed that in order for the omission of exculpatory evidence to deny the defendant his right to a fair trial, the omitted evidence must create a reasonable doubt that did not otherwise exist. The Louisiana Supreme Court in Landry further stated that the omission must be evaluated in the context of the entire record, and that if there is no reasonable doubt created when the additional evidence is considered, there is no justification for a new trial.

In the present case, a blank NCIC report with Walter Richard’s name on it would not create a reasonable doubt as to whether the defendant had committed the crime of simple robbery. The district attorney stated that he had called the NCIC, giving them the victim’s name, age, and date of birth, along with a physical description, and that the agency had then informed him that Walter Richard did not have a record. That being the case, any report rendered by the NCIC would have been a blank sheet of paper with Walter Richard’s name on it. The court’s refusal to order this document was not of sufficient gravity to result in the denial of the defendant’s right to a fair trial. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 3

The defendant contends that the trial court erred in denying his motion for a new trial based upon the contention that the verdict of the jury was contrary to the law and the evidence.

The standard of appellate review to be applied as to the issue of sufficiency of the evidence to support a conviction, is whether after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676 (La.1984).

The crime for which the defendant was convicted is simple robbery, defined by La. R.S. 14:65, which stated at the time of the offense:

“A. Simple 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, but not armed with a dangerous weapon.
“B. Whoever commits the crime of simple robbery shall be fined not more than three thousand dollars, imprisoned with or without hard labor for not more than seven years, or both.”

The defendant was convicted of this crime on the basis of the direct testimony of Walter Richard, the victim. He testified that the defendant hit him on the head with a fire extinguisher and that, while he was dazed and unable to move, defendant took his wallet out of his pocket, pulled the key out of Richard’s ignition, and ran away. Richard said he had $38 in his wallet and that he never got it back. Richard was cut over his right eye and bleeding and still had the facial scar at the time of the trial.

When this evidence is viewed in a light most favorable to the prosecution, any rational trier of fact could have found that the defendant had taken a wallet containing $38 from Walter Richard by use of force and intimidation, thereby committing the crime of simple robbery. This assignment of error lacks merit.

On the basis of our rejection of the assignments of error relative to the conviction for simple robbery, we affirm that conviction, and turn now to a consideration of the three assignments of error relative to the sentence under the habitual offender law.

ASSIGNMENT OF ERROR NO. 4

Defendant’s ease, as an habitual offender, fits the provisions of La.R.S. 15:529.1.-A.(2)(b), providing for a mandatory term of life imprisonment without benefit of parole, probation, or suspension of sentence. Quoting just A.(2)(b) of R.S. 15:529.1:

“A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
* ⅜ * * * *
“(2) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then,
* % * * * *
“(b) If the third felony and each of the two prior felonies involved a violation of R.S. 14:34, R.S. 14:62.1, R.S. 14:65, R.S. 14:110(B), or of any crime punishable by imprisonment for more than twelve years, the person shall be imprisoned for the remainder of his natural life, without benefit of parole, probation, or suspension of sentence.”

The defendant’s current conviction is for simple robbery, a violation of La.R.S. 14:65. In 1969, the defendant was convicted of armed robbery, a violation of La.R.S. 14:64. Armed robbery carries a maximum sentence of ninety-nine (99) years.

On February 21, 1973, the defendant pleaded guilty to a charge of simple robbery. The defendant now contends that this guilty plea cannot be used to enhance his sentence because there was an inadequate showing that that conviction was the result of a free, intelligent, and voluntary plea of guilty.

The Louisiana Supreme Court, in State v. Yarbrough, 418 So.2d 503 (La.1982), held in part that prior guilty pleas could serve as a basis for charging the defendant as a multiple offender. In Yarbrough, the court explained that when the state intends to use a plea of guilty taken subsequent to Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), as a prior conviction in order to enhance punishment, the defendant has the burden of proving that he did not waive his Boykin rights.

The burden of proof was therefore on the defendant in this case to show that he was denied his Boykin rights when he pled guilty to simple robbery on February 21, 1973. The record shows that when the defendant entered his plea, he signed a written waiver of rights form with the assistance of counsel. At the proceedings when the court accepted the guilty plea, the colloquy between the court and the defendant and his attorney, in the record indicates that the defendant had gone over his constitutional rights with his attorney, and the sentencing judge inquired as to whether the defendant understood his constitutional rights, enumerating the right to trial by jury, the right to cross-examine the witnesses, compulsory process to require witnesses to appear, the privilege against self incrimination, and the right to appeal the guilty verdict. After enumerating these rights, the trial judge asked the defendant if he understood them and if he understood that by entering pleas of guilty he was waiving them. To these explanations and inquiries, the defendant said he did.

It was the burden of the defendant to refute this record. The defendant has introduced no evidence to show he was denied his Boykin rights. As a result, this assignment of error lacks merit.

ASSIGNMENT OF ERROR NO. 5

The defendant contends that the sentence to life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence, was illegal because the sentence was not given in compliance with La.C.Cr.P. art. 894.1, the sentencing guidelines statute which requires, among other things, that the court consider mitigating circumstances.

The defendant was sentenced to a term of life imprisonment in accordance with La.R.S. 15:529.1.A.(2)(b). This is a mandatory sentence, leaving the judge without discretion to consider mitigating circumstances.

The constitutionality of La.R.S. 15:529.1 was examined by the Louisiana Supreme Court in State v. Lawson, 410 So.2d 1101 (La.1982), which states:

“R.S. 15:529.1 provides enhanced penalties for multiple offenders based on repetition of criminal conduct, and is a valid limitation on the sentencing considerations listed in C.Cr.P. 894.1. Multiple offender statutes have consistently withstood constitutional scrutiny. See Oyler v. Boles, 368 U.S. 448, 82 S.Ct. 501, 7 L.Ed.2d 446 (1962); McDonald v. Massachusetts, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (1901) and State v. Lee, 364 So.2d 1024 (La.1978). This court upheld R.S. 15:529.1 against attacks that it deprived the trial judge of control over sentencing in State v. Badon, 338 So.2d 665 (La.1976) and State v. Ugarte, 176 La. 54, 145 So. 266 (1932).”

Lawson and the cases cited therein clearly indicate that the trial court has no discretion to consider mitigating circumstances when sentencing a multiple offender in accordance with La.R.S. 15:529.1. This assignment of error is without merit.

ASSIGNMENT OF ERROR NO. 6

The defendant contends that the trial court erred in its denial of his motion to correct an illegal sentence.

As previously discussed in Assignments of Error Nos. 4 and 5, the sentence was not only legal, but actually mandated by La. R.S. 15:529.1(A)2(b). This assignment of error is without error.

For all of the reasons assigned above, the conviction of the defendant for simple robbery is affirmed, and his sentence as an habitual offender is affirmed.

AFFIRMED.


text:
    Jacquelyn FOURNERAT, Plaintiff-Appellee, v. ST. LANDRY PARISH POLICE JURY, Defendant-Appellant.
    No. 84-970.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Young & Burson, I.J. Burson, Jr., Eunice, for defendant-appellant.
    Malcolm Brasseaux, Church Point, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   GUIDRY, Judge.

Plaintiff, Jacquelyn Fournerat, appealed the St. Landry Parish Police Jury’s denial of her application for a permit to sell alcoholic beverages. The district court found in her favor and ordered the Police Jury to issue the permit. Defendant appeals from such order.

The pertinent facts of the case are as follows: Fournerat applied to the St. Landry Parish Police Jury for a liquor permit with the intention of operating a lounge on her property just north of Eunice, Louisiana, on Highway 13. At its regular meeting on Tuesday, June 5, 1984, the St. Landry Parish Police Jury denied the application on the sole ground that Fournerat failed to comply with Section 13-5 of the St. Landry Parish Compiled Ordinances. She had complied with all of the state permit requirements. Section 13-5 provides:

“It shall be unlawful for any person, firm or corporation to conduct a public dance hall or house of public entertainment within the distance of one thousand (1,000) feet in a direct line from any building occupied as a bona fide private dwelling house, except with the written consent of a majority of the property owners owning buildings within that distance from the proposed location of said business which are occupied as dwellings.”

Fournerat thereafter appealed the Police Jury’s denial of her permit application to the district court. Although admitting that the proposed lounge would be located within 1,000 feet of various private dwellings, Fournerat urged that the ordinance in question was invalid in that it went beyond the state requirements for liquor permits. She also contended that the ordinance was unconstitutionally vague. By judgment dated August 21, 1984, the district court ordered the Police Jury to issue the requested liquor permit to Fournerat. In his written reasons for judgment, the trial judge stated that:

“R.S. 26:84 restricts withholding permits by local authorities ‘in the manner and under the terms and conditions specified in this chapter.’ R.S. 26:92 provides that no permit can be withheld except ‘for causes specified in this chapter.’ Both of these provisions are contained in Chapter 1 of Title 26 of the Revised Statutes of 1950. In Chapter 2 of that same title, R.S. 26:282 and 283, contain substantially the same provisions.
In this case, the only possible cause for withholding plaintiff’s permit would be found in the language of R.S. 26:80 and R.S. 26:280, both of which prohibit issuance of a permit ‘in contravention of any municipal or parish ordinance adopted pursuant to the zoning laws of the state.’
As a ground for denial of the permit, the police jury relies on its ordinance designated as 13-5 which prohibits dance halls or houses of public entertainment within 1,000 feet of a dwelling except with consent of a majority of the affected owners.
For the purposes of further discussion I assume that the plaintiff will be operating a dance hall or house of public entertainment and that, in deciding whether to issue a permit, the police jury can anticipate that assumed fact.
If the provision (Ordinance 13-5) is not a zoning ordinance, it cannot serve as a ground for withholding the permit. See R.S. 26:80 and 26:280. If it is a zoning ordinance, it is invalid as ultra vires. Generally, police juries were never and are not now empowered to enact zoning ordinances. There are special authorizations but not for St. Landry Parish. See Article 14, Section 9, of 1921 Constitution; Opinions of the Attorney General 1940-42, Page 3008; Article 6, Section 17, of 1974 Constitution; Opinions of Attorney General No. 77-1269; R.S. 33:1236. Hence, there is no ground for denial of the permit.
I express no view whether Ordinance 13-5 is valid as it now stands, whether under R.S. 26:494, it can be validly amended or redone so as to prohibit sale of alcoholic beverages within a specified distance of a dwelling etc. or what might be the rights of the plaintiff in such a situation.”

On appeal, the Police Jury concedes that Ordinance 13-5 is not a zoning ordinance within the intendment of La.R.S. 26:80 and 26:280, but urges that the trial court erred in failing to find that La. R.S. 26:494 authorizes St. Landry Parish Ordinance 13-5 as a valid means of protecting the public health, morals, safety and peace. Stated another way, appellant contends that, although the provisions of Chapters 1 and 2 of Title 26 do not prohibit the business of wholesaling, retailing, and dealing in alcoholic beverages within a specified distance of a private dwelling except through valid zoning regulations, nevertheless Ordinance 13-5 is valid under the provisions of La.R.S. 26:494 which permits local regulations more stringent than that provided in Title 26 if necessary for the protection of the public health, morals, safety and peace. In support of this contention, appellant cites Brousseau’s Inc. v. City of Baton Rouge, 400 So.2d 1188 (La.App. 1st Cir.1981).

La. R.S. 26:494 provides in pertinent part:

“Except as limited by the provisions of this Chapter the various subdivisions of the state may regulate but not prohibit, except by referendum vote as provided by Chapter 3, this Title or by legally authorized zoning laws of municipalities, the business of wholesaling, retailing, and dealing in alcoholic beverages. However, no parish or municipality shall, in the exercise of its police power, regulate the business of selling such beverages more than is necessary for the protection of the public health, morals, safety, and peace....”

We agree that Brousseau’s, and the cases cited therein, do stand for the proposition that Section 494 authorizes the various subdivisions of the state to adopt alcoholic beverage regulations stricter than those provided by state law if such regulations are shown to be necessary for the protection of the public health, morals, safety and peace. In this case, there is no evidence whatsoever supporting defendant's contention that regulations, more stringent than those set forth in Chapters 1 and 2 of Title 26 of the Louisiana Revised Statutes, are required for the protection of the public welfare of the citizens of St. Landry Parish. Therefore, we need neither approve nor disapprove of the legal proposition espoused in Brousseau’s, for such proposition would only be applicable where the evidence establishes that stricter regulations are required for the protection of the public welfare. See Shop-A-Lott, Inc. v. Town of Many, 427 So.2d 514 (La.App. 3rd Cir.1983).

For the foregoing reasons, the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.