text:
    Sedric E. BANKS, Plaintiff-Appellant, v. John Stanton PEARSON and Cheryl Pittman Pearson, Defendants-Appellees.
    No. 83-500.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    Sedric E. Banks, in pro. per.
    Charles Brandt, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

Plaintiff filed suit against the defendants (hereinafter referred to in the singular) for the sum of $5,000.00 allegedly due him as a brokerage and/or attorney’s fee. Defendant answered denying that he owed plaintiff that amount. After trial on the merits, the district court awarded plaintiff $1,500.00 in attorney’s fees plus legal interest from the date of judicial demand. From that judgment plaintiff has perfected this appeal.

Plaintiff is a practicing attorney at law as well as a licensed realtor in the city of Monroe. In 1981, plaintiff and his father, Mr. Earl Banks, who is also a licensed realtor, located a purchaser for certain property owned by defendant. A sale of the property was consummated and as a result thereof defendant paid to plaintiff and his father a realtor’s commission of approximately $25,000.00. The sale was arranged so that the purchaser paid to defendant some $95,000.00 in cash and signed a promissory note in the principal sum of $219,000.00, secured by a second mortgage on the property. Because the defendant expressed reservations about taking a $219,000.00 promissory note, Mr. Earl Banks, in order to facilitate closing the sale, assured defendant that in the event postliminary financing was required he and plaintiff would assist in securing a loan against the paper. Subsequently defendant did contact plaintiff about assistance in securing a loan.

Plaintiff contends that a fee of $5,000.00 was discussed on several occasions relative to the legal services rendered in connection with this transaction. The defendant takes a contraposition urging that he at no time agreed to pay $5,000.00 but rather only conceded to a reasonable attorney’s fee.

The trial judge in his written reasons for judgment, discussing the extent of services performed by plaintiff stated that:

“Plaintiff then contacted an officer of the Ouachita Bank in Monroe on two occasions about the possibility of obtaining a loan for the defendants. The time expended by plaintiff was approximately 30 minutes and he was informed that no loan would be made. Then plaintiff spoke by telephone with Mr. Arthur Broussard of the Guaranty Bank and Trust Company of Lafayette who asked him to call him back about the loan but in the meantime, he contacted an old friend of his, Glenn Taylor, who was working with the Commerce and Industry Bank in Lafayette, Louisiana. He then informed Mr. Taylor by telephone that defendants desired to make a $75,000 loan and Mr. Taylor agreed to submit the application to the loan committee of the bank. Later, plaintiff was informed that the bank had approved the loan. He then prepared the security instruments necessary to close the loan which consisted of a promissory note, a collateral pledge agreement, a hand note, an assignment of life insurance as well as obtaining a- mortgage certificate on the property of defendants located in Tensas Parish, Louisiana. Plaintiff then combined a business trip which he made to Baton Rouge, Louisiana, with the loan closing of defendants in Lafayette.”

Parties are permitted to contract with respect to attorney’s fees, but those fees are subject to review and control by the courts. Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982). However, in order for plaintiff to recover in contract the $5,000.00 he claims is due there must exist a valid conventional obligation upon which he can base his claim.

“Four requisites are necessary to the validity of a contract:
1. Parties legally capable of contracting.
2. Their consent legally given.
3. A certain object, which forms the
matter of agreement.
4. A lawful purpose.”
La.C.C. Art. 1779.

In the case sub judice no one contests the existence of elements 1, 3, and 4. These parties are of the age of majority; they are of sound mind and thus legally capable of contracting. Further, the object involved was certain in that both parties realized the alleged agreement was for the procuration of legal services in connection with securing a loan for the defendant. Likewise there is no doubt that the purpose was lawful. Ergo, the only question remaining as to the existence of a valid contract concerns legally given consent.

It is an elementary point of law that consent is a requisite to a valid contract. La.C.C. Art. 1779. Of course, this assent may either be expressed or implied. It is expressed “when evidenced by words, either written or spoken; [it is] [i]mplied when it is manifested by actions, ...” La. C.C. Art. 1811.

Plaintiff contends that certain actions of the defendant constituted implied consent. In this regard the trial judge found as a fact that:

“At the loan closing, plaintiff wrote on a yellow legal sheet of paper and presented to defendants a bill for attorney’s fees in the amount of $5,000. At that time, defendants made out a check in that amount and handed it to plaintiff. Shortly after they left the bank, defendants stopped payment on the check because they had not agreed to pay that amount and did not wish to cause a scene at the bank.”

The trial judge obviously believed defendant wrote the check simply to avoid a public dispute which would have been unpleasant to all parties involved. Further, the trial judge considering all the evidence held that plaintiff had failed to prove the existence of a valid contract. In reviewing this case we must place much emphasis on that determination because La.C.C. Art. 1818 provides:

“Where the law does not create a legal presumption of consent from certain facts, then, as in the case of other simple presumptions, it must be left to the discretion of the judge, whether assent is to be implied from them or not.”

The trial judge in his discretion held that plaintiff had failed to prove that these facts constituted an implied consent to the alleged contract. We cannot say that determination was manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1979).

Because no valid agreement existed plaintiffs claim of breach of contract must be dismissed. That however does not end our consideration of this case for plaintiff has performed valuable legal services for which he has not been compensated. And, although plaintiff may not recover on the theory of contracts the law does not allow defendant to procure an advantage as a result of the sacrifice of the plaintiff.

Under Louisiana law, “[tjhere is a general concept of quasi contractual obligations; it is a consent based upon the principle that where there is an unjust enrichment of one at the expense or improvishment of another, then the value of that enrichment or else, in some cases, the amount of the improvishment must be restituted. Planiol, Traite Elementaire DeDroit Civil, T.2, n°812, N°813 (8th ed. 1939).” Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422, 432 (1967) (Footnote omitted).

This “[rjestitution is not a matter of right. It is a privilege resting on the existence of sound judicial discretion, and [should] not be ordered when the equities of the case do not call for it.” Metropolitan New Orleans Chapter of Louisiana Consumers’ League, Inc. v. Council of City of New Orleans, 391 So.2d 878, 880 (La.App. 4th Cir.1980), writ refused, 396 So.2d 898 (La.1981).

The trial judge found that plaintiff was improvished to the extent of $1,500.00, which he considered to be a reasonable attorney’s fee for the services performed. We find that to be a proper award and accordingly affirm.

For the above and foregoing reasons the judgment of the trial court is affirmed. Plaintiff is to pay all costs of this appeal.

AFFIRMED.

GUIDRY, J., concurs.


source: Caselaw Access Project

author: DOUCET, Judge.

license: Public Domain

text:
    CITY OF ALEXANDRIA, Through the Mayor, John K. SNYDER, Plaintiff-Appellant, v. Carroll E. LANIER and Robert Lawrence, Defendants-Appellees.
    No. 83-511.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Rowena Jones and Chris J. Roy, Glynn W. Reynolds, Alexandria, for plaintiff-appellant.
    Gold, Little, Simon, Weems & Bruser, Henry B. Bruser, III, Alexandria, for defendants-appellees.
    Before FORET, DOUCET and YELVER-TON, JJ.
   DOUCET, Judge.

This appeal involves the balance of power between a Mayor and City Council. The City of Alexandria, through its Mayor, John K. Snyder, filed suit against the city’s former Mayor, Carroll E. Lanier, and its former Director of Utilities, Robert L. Lawrence, alleging the defendants failed to implement an energy cost adjustment formula to the detriment of the city. Thereafter, the Alexandria City Council adopted a resolution which, inter alia, directed the Mayor and City Attorneys to dismiss any suits previously filed by said Mayor which had not received the approval of the Council. Defendants responded with dilatory exceptions of lack of procedural capacity and prematurity. The former exception was sustained by the trial judge. Plaintiffs appeal.

Appellants assign the following errors: (1) the trial court erred in concluding the provisions of the City Charter vest authority solely in the City Council to file suits on behalf of the City and, (2) alternatively, the trial court erred in finding the resolution in dispute could be applied retroactively to the suit herein.

The City of Alexandria (plaintiff-appellant) through its Mayor, John K. Snyder, filed suit against former Mayor Carroll E. Lanier, and former Director of Utilities of the City, Robert L. Lawrence, alleging that the defendants, while acting in their official capacity and engaged in the performance of their governmental functions, breached the duty they owed under the law to the City and its citizens and violated certain provisions of the City Home Rule Charter, the State Constitution, the Code of Governmental Ethics and City Ordinances. Plaintiff sought $2,000.00 in damages.

Suit was filed January 10, 1983. On February 15, 1983, the Alexandria City Council passed Resolution No. 2422-1983, which, in sum, prohibited the Mayor from instituting any litigation on behalf of the City without the prior approval of the City Council. In addition, the resolution specifically directed the Mayor to dismiss, without prejudice, all civil suits filed in the City’s name since December 6, 1982 (the date Mr. Snyder began his term of office) reserving to the City the right to reinstate litigation upon compliance with procedures established in the resolution. The present suit was not dismissed. Subsequently, the defendants filed dilatory exceptions of lack of procedural capacity and prematurity. Plaintiff-Appellant filed motions for continuance and a stay, both of which were denied. Subsequently, defendants’ exception of lack of procedural capacity was sustained pursuant fo La.C.Civ.Pro. 926 and plaintiffs’ action was dismissed.

Thus, the issues presented for our resolution are: (1) Does the Mayor have the authority, inherent or specified, to institute suit?; (2) If so, to what extent may the Council limit the Mayor’s capacity to direct legal action?; and (3) Assuming the aforementioned issues are resolved in appellants favor, can Resolution 2422-1983 be applied retroactively to the suit herein? Our resolution of the first two issues renders it unnecessary to address the last.

Alexandria has a “Mayor-Council” form of government. The Home Rule Charter adopted by the affirmative vote of its citizens pursuant to Article VI, Section 5, of the Louisiana Constitution of 1974, divides municipal authority into two branches: legislative and executive, and specifies the powers of each. All residuary authority is reserved to the Council, Section 2-06, with the exception that all executive and administrative authority is invested in the Mayor, Section 3-01.

Section 2-06 provides:

“All powers of the city shall be vested in the council, except as otherwise provided by law or in this charter, and the council shall provide for the exercise thereof and for the performance of all duties and obligations imposed on the city by law.”

The enumeration of the powers and duties of the mayor in Section 3-07 provides that he is primarily charged with the obligation of effectuating the decisions of the council, although he also has veto power over ordinances. Section 2-13. Among the duties of the Mayor is to “perform such other duties as are specified in this charter or may be required by the council.” Section 3-07(8). Obviously, the present action has not been required by the Council, thus the Mayor’s authority must lie elsewhere if the litigation is to proceed.

Appellant relies on section 3-1 of the Charter which establishes the Mayor as the “chief executive officer of the city”, with “all executive and administrative authority ... except as set forth in this Charter.” Section 3-1 of the Charter further directs the Mayor to:

"... see that all laws, provisions of the charter and acts of the council, subject to enforcement by him or by officers subject to his direction and supervision, are faithfully executed, ...”

Section 2-07 states:

“Except for the purpose of inquiries and investigations under Section 2-08, the Council or its members shall deal with city officers and employees who are subject to the direction and supervision of the Mayor solely through the Mayor, and neither shall give orders to any such officer or employee, either publicly or privately.”

Section 4-01, in pertinent part, provides:

“(A) All divisions, departments, offices and agencies shall be under the direction and supervision of the mayor.”

Appellant also relies on section 4-02 which identifies and describes the powers and functions of the “Legal Division”; it provides that the head of the Legal Division shall be a City Attorney who shall be appointed by the Mayor and shall serve at his or her pleasure. The City Attorney, under (B) of said section, is charged with the power and responsibility of representing the city in all legal proceedings.

Appellee relies heavily on Section 2-06 and contends that if the Mayor’s powers extend to initiation of litigation without Council approval it would commit the City to expenditure of substantial public funds for attorneys fees, expert witness costs and other litigation expenses outside the budgetary process. Appellee also argues that any such grant of power would allow an incumbent Mayor to harass political opponents by subjecting them to publicly financed “reprisal” lawsuits.

Notably, the City Charter is silent on the question of whether the Mayor has the right to bring suit or instigate litigation without prior approval of the City Council.

“Executive authority” has been defined as the power and duty of the executive branch of government to enforce the laws. State of Louisiana ex rel Guste v. Legislative Budget Committee, 347 So.2d 160 (La.1977); Springer v. Government of Philippine Islands, 277 U.S. 189, 48 S.Ct. 480, 72 L.Ed. 845 (1928).

A Mayor, in the performance of his administrative duties, must be accorded discretion and his exercise thereof will be presumed to be valid unless the contrary is clearly shown. LaFleur v. Roberts, 157 So.2d 340 (La.App. 3rd Cir.1963). Nevertheless, charter provisions limiting or qualifying the authority of municipal officials must be construed so as to give them effect. Id. “In a constitutional form of government based upon the rule of law, public officials like all other citizens, must obey the law”. 157 So.2d at 343. See also: 3 McQuillan on Municipal Corporations (3rd ed. 1949) Section 12.43 at pp. 198-199; and Dickson v. Hardy, 144 So. 519 (La.App. 2d Cir.1932).

The rights, powers and duties of the officers of a municipality are controlled by the provisions of the constitution, statutes, charter and ordinances, and it may be stated broadly that the officers of a municipal corporation cannot find it by assumption of powers beyond those granted by the sovereign authority and not essential and indispensable to the declared objects for which it was incorporated. 56 Am.Jur.2d 326, Municipal Corporations § 275. Section 2-06 provides that all powers granted pursuant to the home rule charter are vested in the council unless expressly delegated to some other officer or body. The Alexandria Home Rule Charter is in accord with the regulations and delegation of powers found in the majority of municipalities. See: 56 Am.Jur.2d 194, Municipal Corporations § 140. It is no part of the official duty of the mayor to examine the books or operations of former officers although it may be within his province to investigate such matters and give public information there from if he thinks it best. 56 Am. Jur.2d 330, Municipal Corporations § 281.

Section 2-06 is clear that all powers not expressly delegated to the mayor are reserved unto the council. Appellant’s reliance on provisions relative to executive and administrative authority of the mayor is misplaced. Former city officials are not subject to the direction and supervision of the mayor nor does executive power extend to enforcement of laws prior to his term of office. Such action does not fall within the scope of executive and administrative authority.

Having found that the Mayor lacked the authority to institute the litigation herein, the action of the Council in enacting a resolution seeking compliance with the division of powers as set forth in the charter was a proper means - to assert their residuary authority as acts of a municipal council and mayor are subject to judicial control and supervision. LaFleur v. Roberts, supra.

A challenge to a plaintiffs authority to act to assert a claim is a defense properly raised by the dilatory exception pleading lack of procedural capacity. La.C.Civ.Pro. Art. 926; Frazer v. Day, 307 So.2d 733 (La.1975); Gebbia v. City of New Orleans, 249 La. 409, 187 So.2d 423 (4th Cir.1966); Lemoine v. Roberson, 366 So.2d 1009 (La.App. 1st Cir.1978); Chaney v. Brumfield Wrecker Service, Inc., 380 So.2d 126 (La.App. 1st Cir.1979), appeal after remand, 400 So.2d 1119. We find the trial judge properly sustained defendant’s exception.

For the reasons assigned hereinabove, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.


author: KNOLL, Judge.

text:
    FIRST HOMESTEAD FEDERAL SAVINGS AND LOAN ASSOCIATION, Plaintiff-Appellant, v. Sylvester COLEMAN, Sr. and Willie Brown Coleman, Defendants-Appellees.
    No. 83-524.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Newman & Drolla, Linda J. Cucullu, New Orleans, for plaintiff-appellant.
    James Vallee, Lake Charles, for defendants-appellees.
    Before CUTRER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

This appeal involves a suit on a promissory note. First Homestead Federal Savings & Loan Association (hereafter First Homestead) sued Sylvester Coleman, Sr., and his wife, Willie Brown Coleman, for $4,523.40 on a promissory note allegedly executed by them in connection with their purchase from Lake Charles Home Security of burglar bars for their home in Lake Charles. The defendants denied signing the note and further alleged fraud, duress, misrepresentation and rescission of the contract. At the conclusion of the trial, the district court rejected plaintiff’s demands on the basis that the promissory note which was sued upon was never admitted into evidence.

First Homestead has appealed contending that judgment should have been granted in its favor for the following reasons:

1) Formal introduction of the promissory note into evidence was not required because the original note had been attached as an exhibit to its petition; and
2) In the alternative, judgment should have been rendered against Willie Brown Coleman because she admitted signing the promissory note in her pleadings and at trial.

The basis of plaintiff’s suit against the Colemans was a contract for the payment of money, namely a promissory note. The contract itself is the law between the parties. LSA-C.C. Art. 1945. A plaintiff who knows of a written instrument which forms the basis for his claim must produce it when it provides the best evidence of the facts at issue. Ascension Builders, Inc. v. Jumonville, 262 La. 519, 263 So.2d 875 (1972).

LSA-C.C. Art. 2277 provides:

“All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances. (Emphasis added)

In Ascension Builders, Inc. v. Jumonville, supra, the Louisiana Supreme Court interpreted Article 2277 and stated:

“In prescribing the mode of proof for contracts not reduced to writing, by clear implication it [LSA-C.C. Art. 2277] prescribed that when the contract is reduced to writing, the writing is the required proof.

In a suit on a promissory note, the note is the foundation of the cause of action. Lindsley-Feiber Motor Company v. Brumfield, 111 So.2d 555 (La.App. 1st Cir.1959). Therefore, the introduction into evidence of the original promissory note is the required proof. LSA-C.C. Art. 2277; Ascension Builders, Inc., supra.

Nonetheless, plaintiff claims that even though it did not formally admit the promissory note into evidence, the attachment of the original promissory note to its petition, coupled with the testimony of Robert W. Ayers, was sufficient to establish its claim against the Colemans. We disagree.

In the case sub judice the only evidence First Homestead presented was the following: Robert W. Ayers, an assistant vice-president of First Homestead, identified a promissory note held by the homestead; he testified that the note was dated February 24, 1981; that the signatures which appear on the note are Sylvester Coleman and Willie Brown Coleman; that the note was the subject of the instant litigation; that the balance of the note was $4,610.13 and, that the note provided for 25% attorney’s fee if it was turned over to an attorney for collection. He further stated that he did not witness the signing of the note, and he did not know if anyone else did. Plaintiff then rested its case.

LSA-C.C.P. Art. 853 provides in pertinent part:

.. A copy of any written instrument which is an exhibit to a pleading is a part thereof for all purposes.

The documents so attached simply form a part of the pleadings. The documents are not evidence. If we were to treat such attachments as evidence, it would effectively deny the opposing party the right to object to its admissibility. In accord see Jackson v. Gordon, 381 So.2d 520 (La.App. 1st Cir.1980). Accordingly, we find plaintiff’s first argument is without merit.

Plaintiff next asserts that Willie Brown Coleman impliedly admitted signing the promissory note in her supplemental answer. This conclusion is incorrect and ignores her original answer in which she specifically denies signing the note held by First Homestead.

Finally, First Homestead contends that judgment should be granted against Willie Brown Coleman because at trial she admitted having signed the note.

LSA-C.C. Art. 2291 provides as follows:

“The judicial confession is the declaration which the party, or his special attorney in fact, makes in a judicial proceeding.
It amounts to full proof against him who has made it.
It can not be divided against him.
It can not be revoked, unless it be proved to have been made through an error in fact.
It can not be revoked on a pretense of an error in law.”

A judicial admission or confession under Article 2291 is a party’s express acknowledgment of the correctness of the fact or the act charged against him by his adversary. Am. Employers Ins. v. Honeycutt Furniture Co., 390 So.2d 255 (La.App. 3rd Cir.1980). A judicial confession has the effect of waiving evidence as to the subject of the admission. Crawford v. Deshotels, 359 So.2d 118 (La.1978). A judicial confession must be explicit and not merely implied. Hoffman v. Hoffman, 430 So.2d 149 (La.App. 2nd Cir.1983); X-L Finance Com pany v. LeDoux, 215 So.2d 164 (La.App. 3rd Cir.1968).

Mrs. Coleman was examined by her attorney and cross-examined by First Homestead about her signature on the promissory note. From our careful review of the record we cannot find one occasion in Mrs. Coleman’s testimony where she admitted signing the promissory note. Therefore, First Homestead’s argument that Willie Brown Coleman has made a judicial confession is not supported by the record.

The Colemans presented an aggressive and affirmative denial of plaintiff’s cause of action. The Colemans denied executing the promissory note from the onset of this litigation and raised numerous affirmative defenses. The filing of defendants’ general denial alone called for strict proof of each material allegation of fact set forth in plaintiff’s petition. Garden Hill Land Corp. v. Succession of Cambre, 306 So.2d 718 (La.1975), appeal after remand 313 So.2d 864 (La.App. 4th Cir.1975). Defendants' general denial coupled with their assertion of affirmative defenses required more specificity of proof than we have found in the record. Two employees of Lake Charles Home Security were identified as being present when the Colemans purportedly signed the promissory note. Neither of these witnesses were called to testify. First Homestead never confronted the Colemans with the original promissory note and asked them to admit or deny their, signatures. Accordingly, we find plaintiff has failed to prove a prima facie case necessary to obtain a valid judgment against the Colemans.

For the foregoing reasons the judgment of the trial court is affirmed. Costs of this appeal are assessed to plaintiff-appellant, First Homestead Federal Savings and Loan Association.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    STATE of Louisiana v. Arthur L. RYAN.
    No. CR83-582.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Joshua J. Pitre, Opelousas, for defendant-appellant.
    Richard W. Vidrine, Ville Platte, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and STOKER, JJ.
   DOMENGEAUX, Judge.

The defendant, Arthur L. Ryan, was apprehended by a Ville Platte police officer for traveling the wrong way on a one-way street. Thereafter he was taken to the police station and requested to submit to a PEI test. Defendant refused to take the test and exhibited hostile behavior towards the police officers on duty. This resulted in the defendant being charged with the crime of simple assault, along with charges of operating a vehicle while intoxicated, improper lane usage, and operating a vehicle with a suspended license. The defendant pled not guilty to all charges and the matter proceeded to trial. The trial court found the defendant guilty of operating a vehicle under a suspended license and of improper lane usage, but found the defendant not guilty of the simple assault and OWI charges. For the driving under a suspended license conviction, defendant was sentenced to pay a $500.00 fine and serve six months in jail, plus $25.00 court costs, with suspension of the jail sentence upon the payment of the fine. In addition he was ordered to remove the license plates from the automobile he was driving and surrender it to the State Police. For the improper lane usage conviction, the defendant was sentenced to pay a fine of $60.00 plus $25.00 court costs, or to serve thirty days in jail.

From these convictions defendant has perfected this appeal contending that the trial court made the following errors: (1) the fines and costs exceed the jurisdictional amount; and (2) the automobile’s license plate cannot legally be removed.

FINES AND COSTS EXCEEDING JURISDICTIONAL AMOUNT

The statutory authority which grants a City Court subject matter jurisdiction over criminal proceedings is La.R.S. 13:1894. The statute provides that:

“[T]he criminal jurisdiction of city courts is limited to the trial of offenses committed within their respective territorial jurisdictions which are not punishable by imprisonment at hard labor, including the trial of cases involving the violation of any city or parochial ordinance.
City judges may also require bonds to keep the peace; issue warrants of arrest; examine, commit, and admit to bail and discharge; and hold preliminary examinations in all cases not capital.”

Thus a City Court has proper subject matter jurisdiction over any criminal ease which involves an offense committed within its territorial jurisdiction and which may not be punishable by imprisonment at hard labor. Neither of the crimes for which the defendant was convicted, namely La.R.S. 32:79 and La.R.S. 32:415, provides for a possible sentence of imprisonment at hard labor. Thus, the trial court had proper subject matter jurisdiction without regard to any jurisdictional amount.

It should be noted however that the $25.00 imposed as court cost on each conviction herein exceeded what is statutorily authorized. The authority of a city court to assess costs is found in La.R.S. 13:1899. The statute provides:

“A. Except as otherwise provided by law, in all criminal matters, including traffic violation cases, in addition to the fine or other penalty which may be legally imposed against every defendant who •is convicted after trial or after a plea of guilty or who forfeits his bond, the judge may assess costs of court in an amount not to exceed ten dollars.
C. In all criminal matters, the city judge shall assess, in addition to the foregoing costs, a sum not less than five dollars and not to exceed ten dollars as additional costs of court, the proceeds from which may be deposited in a special account, separate and distinct from the account provided for in R.S. 13:1899(B), which account shall be in the name of and under the control of the marshal or constable of the court, shall be subject to audit, and shall be used to defray operational expenses of the office of marshal or constable of the court, all as may be useful and necessary for the proper conduct of the marshal’s or constable’s offices, for maintenance and improvement of jail facilities, or for purchase of law enforcement equipment, and all as may be proved by said marshal or constable. The city judges of any and all parishes and the mayor’s court in the town of Many in Sabine Parish shall be authorized to assess such sum in accordance with this Section. The provisions of this Subsection shall not apply to the City Court of Plaquemine. The additional costs provided for in this Subsection shall not exceed thirty dollars in the City Court of Houma.”

Thus under Part A of this statute a city court judge may impose a $10.00 cost and under Part C of the statute an additional $10.00 may be assessed. Further, La.R.S. 32:393 requires “every court” to keep a report of every case in which a person is charged with a law or regulation established for controlling the operation of motor vehicles. Upon final disposition of the case, parking convictions excepted, an abstract of the report is to be sent to the Department of Public Safety. La.R.S. 32:393(F) authorizes the court preparing the abstract to collect 50 cents to cover its cost.

Thus in this case the city court judge has authority to assess at most $20.50 per conviction.

REMOVAL OF THE LICENSE PLATE

The vehicle the defendant was driving at the time of the arrest was registered in his wife’s name. Defendant contends that the trial court erred in ordering the license plate to be taken from this automobile. We agree.

As set out infra, the penalty provisions of the two crimes of which the defendant was convicted provide for a penalty of a fine and/or imprisonment. These statutes do not provide for sentences which include the removal of automobile license plates.

While we find no error in the sentences insofar as fines and/or imprisonment are concerned, it is not within the judge’s discretion to order license plates removed under the facts that existed and the procedures that were employed in this case.

For the above and foregoing reasons, the defendant’s conviction for driving under a suspended license and improper lane usage are affirmed, but the sentences are vacated and set aside, and the case is remanded to the City Court with instructions to the trial judge to impose sentences and costs not inconsistent with the views expressed herein.

CONVICTIONS AFFIRMED, BUT REMANDED FOR RESENTENCING.

      . The penalty provisions of the crimes of which defendant was convicted are La.R.S. 32:57 and La.R.S. 32:427.
      La.R.S. 32:57 (improper lane usage) states:
      “Violations of the provisions of this Chapter and regulations of the department, secretary, and commissioner made pursuant thereto shall, unless otherwise specifically provided, be punished by a fine of not more than one hundred dollars, or by imprisonment for not more than thirty days, or both. A subsequent violation shall be punished by a fine of not more than five hundred dollars, or by imprisonment for not more than ninety days, or both.
      If the violator is other than an individual, imprisonment shall be dispensed with a double fine imposed.”
      La.R.S. 32:427 (driving under suspended license) states:
      “Whoever violates a provision of this Chapter shall be fined not less than ten dollars, nor more than five hundred dollars or imprisoned not more than six months, or both."

      . Attorney for appellant has erroneously attempted to inculcate in this criminal case the jurisdictional amount issue applicable in civil cases.

      . La.R.S. 32:393(F) was amended in the 1983 Legislative session to increase the costs which may be assessed from 50 cents to $2.00 in parishes having populations of less than five hundred thousand. But the effective date of this amendment is August 30, 1983, and this case was tried on April 7, 1983.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. James H. THOMPSON, Jr., Appellant.
    No. CR83-583.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.
    P. Spencer Torry, Louis Berry, Alexandria, for appellant.
    Norris Dale Jackson, Asst. Dist. Atty., Jena, for appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   FORET, Judge.

Defendant, James H. Thompson, was charged by four separate bills of information in the Twenty-Eighth Judicial District Court, in and for the Parish of LaSalle, with violation of:

(1) R.S. 14:98 (driving while intoxicated, second offense),
(2) R.S. 14:95(A)(1) (illegally carrying a weapon),
(3) R.S. 14:108 (resisting arrest), and
(4) R.S. 32:61 (speeding).

Defendant was tried on all four counts simultaneously, and convicted, by judge trial, on March 11, 1983. He was sentenced on all four counts, sentences to run concurrently, by the trial judge. However, we need not mention herein the sentences imposed because of the disposition which we make of the case on this appeal.

Although the defendant has filed a brief in this matter arguing four assignments of error, he has failed to file any formal assignments of error. See LSA-C. Cr.P. Article 844. As a result of this failure, the defendant’s case is subject only to a review of the record for patent errors. LSA-C.Cr.P. Article 920(2); State v. Zeno, 322 So.2d 136 (La.1975). Such a review does, however, reveal a fundamental error.

The maximum penalty for a second offense under R.S. 14:98 is a $500 fine and six months in prison. The maximum penalty under R.S. 14:95 is a $500 fine and six months in prison. The maximum penalty under R.S. 14:108 is a $500 fine and six months in prison. The maximum penalty for violation of R.S. 32:61 is a $100 fine and thirty days in jail as provided by R.S. 32:57. The defendant was tried on all of these charges at once without the mention of consolidation. Under such circumstances, the charges are considered as if they were joined and the total possible punishment is the sum of the maximum possible for each charge. State v. Laurendine, 439 So.2d 398 (La.1983); State v. Williams, 404 So.2d 954 (La.1981). When the maximum sentences are totaled in this case, the sum is greater than six months imprisonment and, therefore, defendant was entitled to a jury-trial. LSA-Const., Art. 1, § 17; State v. Laurendine, supra; State v. Williams, supra.

Although a defendant who is entitled to a jury trial may waive that right, such waiver is not presumed. State v. Laurendine, supra; State v. Williams, supra. Nothing in the record before this Court indicates that defendant waived his right to a jury trial. In fact, there is absolutely no mention of “jury trial” in the record. Under the circumstances, there is an error patent on the face of the record.

For the foregoing reasons, defendant’s convictions are reversed, the sentences vacated, and the case is remanded for a. new trial.

REVERSED AND REMANDED.


author: YELVERTON, Judge.

text:
    BAYOU ACCEPTANCE CORPORATION, Plaintiff-Appellee, v. SUPERIOR HYDRAULICS, INC., Defendant-Appellant.
    No. 83-630.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Michael Harson of Dupuis, Mayers & Harson, Lafayette, for defendant-appellant.
    Peter C. Piccione, Jr., Lafayette, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   YELVERTON, Judge.

This suit was brought by Bayou Acceptance Corporation against Superior Hydraulics, Inc., for breach of lease agreements. From the trial court’s judgment in favor of plaintiff, defendant has appealed. We affirm.

In 1979 Bayou Acceptance Corporation (Bayou) by written agreements leased computer equipment to Superior Hydraulics, Inc. (Superior). On default of the payments due for January 1982, pursuant to the terms of the leases Bayou sued for the entire balance due under the leases.

Superior’s defense was that it was freed from all obligations when it assigned the leases to a third party, Epic Computer Corporation (Epic). The trial court found that although the leases were assigned to Epic (now out of business), Bayou never agreed to the release of Superior from liability for lease payments under the leases. The court thus held that defendant remained liable to plaintiff for the balance due on the leases totalling $47,562.00. Judgment was rendered for this amount together with legal interest from date of judicial demand, attorney’s fees in accordance with the lease agreements, and costs.

The sole issue on appeal is whether the assignment of the leases from Superior to Epic, in combination with Bayou’s acceptance of the assignments, amounted to a novation. The facts of the case show that the trial court was correct in concluding that a novation did not occur.

The assignment from Superior to Epic was executed on September 16, 1980. The act of assignment stated that Epic would assume “all obligations or liabilities under said leases” and would hold Superior harmless from any and all liabilities.

On November 3, 1981, the attorney for Superior sent a letter to Bayou requesting Bayou’s consent to the assignment and a release of Superior from the lease agreements. Attached to the letter was a copy of the act of assignment. On November 11, 1981, Bayou responded by letter stating:

“Bayou Acceptance Corporation accepts these lease assignments as called for in Paragraph 11 of each of these three leases.”

Paragraph 11 of each of the three leases provided as follows:

“11. ASSIGNMENT, NOTICES, REMEDIES AND WAIVERS: This lease and all rights of Lessor hereunder shall be assignable by Lessor without Lessee’s consent, but Lessee shall not be obligated to any assignee of the Lessor except after written notice of such assignment from the Lessor. Without the prior written consent of Lessor, the Lessee shall not assign this lease or its interests hereunder or enter into any sub-lease with respect to the equipment covered hereby, it being agreed Lessor will not unreasonably withhold its consent to a sub-lease of the equipment. All notices relating hereto shall be delivered in person to an officer of the Lessor or Lessee or shall be mailed registered to Lessor or Lessee at its respective address above shown or at any later address last known to the sender. No remedy of Lessor hereunder shall be exclusive of any other remedy herein or by law provided, but each shall be cumulative and in addition to every other remedy. A waiver of a default shall not be a waiver of any other or a subsequent default.”

Bayou thereafter accepted the rent payments from Epic through January 1982.

We find the following quotation from Knapp v. Guerin, 81 So. 302 (La.1919) dispositive of the issue-presented:

“... The relation of lessor and lessee is created very much in the same manner as that of vendee and vendor in the contract of sale, in that there must be a thing, a price, and the consent of the parties, and carries with it implied obligations of warranty, etc. R.C.C. 2676 et seq. It is a commutative contract, and, once established, well-defined rights and obligations attach to each party thereto. R.C. 2692 et seq. The relation is terminated in the same way as other agreements. R.C. 2727 et seq.
Therefore, since the defense under discussion is, in effect, a plea of novation, or the substitution of a new debtor, in so far as the obligations of the lessor are concerned, we must look to the articles of the Code dealing with novation for a determination of that issue.

Article 2185 reads:

“Novation is a contract, consisting of two stipulations; one to extinguish an existing obligation, the other to substitute a new one in its place.”

Article 2188:

“All kinds of * * * obligations are subject to novation.”

Article 2189:

“Novation takes place in three ways:
“1. * ⅜ ⅞ When a debtor contracts a new debt, * ⅜ * which new debt is substituted to the old one, which is extinguished.
“2. * * * When a new debtor is substituted to the old one, who is discharged by the creditor.
“3. * * * When by the effect of a new engagement, a new creditor is substituted to the old one, with regard to whom the debtor is discharged.”
These articles of the Code are found in the chapter which deals with the manner in which obligations may be extinguished. Of course, with regard to the obligation to pay the rent, etc., plaintiff was the debtor to his lessor; and, as to the obligation of maintaining plaintiff in the undisturbed possession of the premises during the term of the lease, Bertrand was the obligor or debtor of plaintiff.

Again, article 2192 reads:

“The delegation, by which the debtor gives to the creditor another debtor who obliges himself toward such creditor, does not operate a novation, unless the creditor has expressly declared that he intends to discharge his debtor who has made the delegation.”

Article 2190:

“Novation can be made only by persons capable of contracting; it is not presumed; -the intention to make it must clearly result from the terms of the agreement, or by a full discharge of the original debt.”

Article 2194:

“The mere indication made by a debtor of a person who is to pay in his place does not operate a novation.
“The same is to be observed in the mere indication made by the creditor of a person who is to receive for him.”
We do not have to look to the common law for our .guidance in the determination of the subject-matter of this litigation, for it is governed by the provisions of the Civil Code, derived from the civil law. For an able and elaborate discussion of the differences under the two systems, see the case of Viterbo v. [Friedlander] Freidlander, 120 U.S. 707, 7 Sup.Ct. 962, 30 L.Ed. 776. By a reasonable interpretation of the articles above quoted, it is evident that, in order for Bertrand and his heirs to have been discharged from his obligations to plaintiff under the lease, the intention of the latter, not only to accept Fichtenberg in his place and stead, but also to discharge the former lessor, must have been clear and unequivocal. See, also, Austin, Thorpe & Co. v. Da Rocha, Becker & Co., 23 La.Ann. [44] 48; Choppin v. Gobbold, 13 La.Ann. 238; Jacobs v. Calderwood, 4 La.Ann. 509; Mark v. Bowers, 4 Mart.(N.S.) 95; Levy v. Pointe Coupee, 24 La.Ann. [292] 293.
All that plaintiff did was to pay his rent for three months to Fichtenberg, after being notified of the transfer — that is, he sent the rent down, probably in the shape of a clieck in favor of Fichtenberg, by a servant, to whomever was in charge of the premises on the ground floor — and on one occasion admitted to an outsider that he had a new landlord. At the date of the transfer plaintiffs negotiable notes were outstanding, and were by the same act conveyed to Fichtenberg. Defendant had the legal right to sell, and there was nothing that plaintiff could have done to prevent the transfer if he had wanted to. R.C. 2009 et seq. In paying the rent he did nothing more than he was bound to do under the law. There is nothing in the record to show that he either expressly or impliedly agreed to release defendant from the obligations of lessor.”

In Knapp the original lessor conveyed his interests in the property to a third party. That conveyance did not operate to release the lessor from his obligations under the lease.

Similarly, in Davidson v. Baker Fuel Oil Burner Co., 134 So. 108 (La.App.Orl.1931) the plaintiff executed a contract for the defendant to install a heating system. The defendant assigned the contract to a third party. The plaintiff filed suit against both for defective workmanship. As to the defendant’s liability under the contract, the court found that the plaintiff “had a right to call upon Baker because he had never waived his rights against Baker, and never agreed to look solely to Luderbach [the third party] as the assignee of the contract.”

In the same fashion, although Superior and Epic entered into an assignment agreement, Superior cannot escape its obligation towards Bayou, the plaintiff. Although Bayou did receive notice of the assignment and accepted payments from 'Epic until it went out of business, Bayou never explicitly released the defendant from its original obligation. Bayou’s acknowledgment of receipt of the assignment was expressly limited by the provisions of Paragraph 11 of the lease. Paragraph 11 does not state that an assignment would release the assignor from the leases. The mere acknowledgment by Bayou of the assignments, therefore, did not free defendant appellant from liability. Bayou, not bound by the assignment of the lease, can still pursue Superior based on its liability under the lease.

For the above and foregoing reasons the trial court’s judgment is affirmed. Costs are assessed against defendant-appellant.

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Joe KING, Defendant-Appellant.
    No. CR83-675.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Nesib Nader, Shreveport, for defendant-appellant.
    Asa Skinner, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   YELVERTON, Judge.

Defendant, Joe King, pleaded guilty to attempted possession of phenmetrazine (LSA-R.S. 40:967(C) and R.S. 14:27). He was given the maximum sentence of two and a half years at hard labor and the maximum fine of $2500. Defendant appeals the sentence. We affirm.

Although three assignments of error were reserved only one is argued on appeal. The other two are considered abandoned, State v. Zeno, 322 So.2d 136 (La.1975), and will not be considered.

The argued assignment is that the sentence is excessive. Based generally on the premise that his crime was a non-violent one, defendant contends that the maximum sentence in his case was undeserved.

It is generally said that the maximum penalty should be reserved for the worst case and the worst offender. State v. Lanclos, 419 So.2d 475 (La.1982). We find that it was not a manifest abuse of the trial court’s discretion to give the maximum penalty in this case. The explanation for the sentence lies in the trial court’s careful compliance with C.Cr.P. art. 894.1 and the factors he considered in arriving at the sentence. *

Following the guilty plea the trial judge deferred sentence for over two months and ordered a presentence investigation. He conducted a sentencing hearing. In imposing sentence the court noted that although defendant had no felony record, he had a lengthy misdemeanor record of eight convictions, including two marijuana possession convictions, resisting arrest, simple escape, and two thefts. Some of these had been reduced from felonies. The court also noted that there were a number of arrests on defendant’s record for which no disposition was shown, along with bond forfeitures, contempts, disturbing the peace and other matters.

The trial court also observed that defendant’s plea to attempted possession of phen-metrazine was the result of a plea bargain in exchange for which a charge of distribution of marijuana was dismissed and the charge of phenmetrazine possession was reduced to attempt. We note that the two original charges carried a combined exposure of fifteen years and $20,000. The trial judge correctly took into consideration that defendant had received considerable benefit from this plea. State v. Snider, 406 So.2d 209 (La.1981); State v. Lanclos, supra.

Additionally, the trial court observed that even while the presentence investigation was being made defendant was arrested again for distribution of a controlled dangerous substance. The trial court properly considered this as well as the other arrests mentioned above, because both arrests and convictions may be considered in imposing sentence. State v. Williams, 412 So.2d 1327 (La.1982).

Finally, the trial court took into consideration the community attitude toward defendant as revealed by the opinions of his “peers”, disclosed by the presentence report, describing defendant as having an “unsavory reputation.” The propriety of the trial court’s consideration of these con-clusory opinions depends upon whether there is a factual basis for them in the record. We do not know whether a factual basis appears in the presentence report because it is not in the record. However, we find that defendant’s criminal record alone furnishes a sufficient factual basis to explain how he might have deservedly acquired an unsavory reputation. We think it entirely appropriate for the sentencing court to give consideration to the defendant’s deserved reputation in the community as a factor relevant to whether a lesser sentence would deprecate the seriousness of the offense. C.Cr.P. art. 894.1(A)(3).

As stated earlier, the trial court conducted a sentencing hearing. At the hearing the court gave counsel and the defendant ample opportunity to present mitigating factors for consideration. The defendant spoke in his own behalf. No mitigating factors were presented.

For the reasons assigned, we conclude that the trial court did not abuse its discretion when it imposed the maximum of two and one half years at hard labor together with the maximum fine of $2500.

One of the unperfected assignments of error was the legality of the imposition of an additional six month’s imprisonment should defendant fail to pay the fine of $2500. Defendant’s assignment of error complained that a failure to pay the fine exposed him to serving a sentence which exceeded by six months the statutory maximum in this case. We would treat this as an error patent if in fact it was error. It would have been error only if the record showed defendant was an indigent. State v. Lukefahr, 363 So.2d 661 (La.1978). However, the record makes it appear that defendant was not an indigent. He has had two attorneys in the case, a presen-tence attorney and a postsentence attorney, both from outside of his judicial district and both obviously retained. This being the case, the sentence was not illegal.

For the reasons assigned, the conviction and sentence are affirmed.

AFFIRMED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. John Wayne SMITH, Defendant-Appellant.
    No. CR83-680.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      Kenneth O. Privat, Privat & Regan, Crowley, for defendant-appellant.
    Robert T. Cline, Asst. Dist. Atty., Crowley, for plaintiff-appellee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   LABORDE, Judge.

Defendant, John Wayne Smith, was charged by bill of information with seven (7) counts of theft in violation of LSA-R.S. 14:67. Defendant pleaded guilty to all counts and was sentenced to serve consecutive sentences totaling nine (9) years at hard labor. Defendant now appeals, contending that his total sentence is excessive and that the trial judge failed to adequately state reasons for imposing the sentence in accordance with C.Cr.P. art. 894.1. We affirm.

FACTS

Defendant, John Wayne Smith, twenty-three years old, entered a guilty plea to seven counts of theft. The stolen items consisted of six motorcycles and assorted tools, ranging in value from $500 to $1,500. Defendant’s brother, Harry Lee Smith, and Anthony Romero also pleaded guilty to the charges, having acted in concert with defendant. Defendant and his brother were both sentenced to serve consecutive sentences of two years, for each of three counts, and three years for the remaining four counts, resulting in a total sentence of nine years at hard labor. The third defendant, Romero, was given a three year suspended sentence.

Defendant’s assignments of error present two issues for our determination:

1) Whether the trial judge failed to adequately state the reasons for imposing the nine year sentence in accordance with LSA-C.Cr.P. art. 894.1, and;
2) Whether defendant’s sentence is excessive.

ISSUE NOS. 1 and 2

Defendant contends that his cumulative sentence of nine years at hard labor for the seven charges, each ranging from $500 to $1,500 in value, is an excessive punishment in violation of Article 1, section 20 of the Louisiana Constitution. Defendant actually received sentences of two years at hard labor for each of three counts, to run consecutively and an additional three years at hard labor for the remaining four theft charges, to run consecutively. No reasons were enunciated by the sentencing judge for the disproportionate sentence levied against the Smith brothers. LSA-R.S. 14:67 provides in pertinent part:

“Whoever commits the crime of theft when the misappropriation or taking amounts to a value of five hundred dollars or more shall be imprisoned, with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars, or both.”

Clearly, defendant’s sentences, as to each count, fall within the low range of sentences which might have been imposed within the statutory limits of up to ten years. Nonetheless, the sentence may still be reviewed by this court for excessiveness. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Cox, 369 So.2d 118 (La.1979).

In Sepulvado and Cox, supra, the Louisiana Supreme Court held that although a sentence is within the statutory limits it may nevertheless constitute an excessive sentence. In addition, the trial judge must comply with the mandatory requirements of LSA-C.Cr.P. art. 894.1, individualizing the sentences by stating for the record the considerations taken into account and the factual basis thereof. State v. Jones, 381 So.2d 416 (La.1980).

In sentencing defendant, the trial judge stated that a lesser sentence would “deprecate the seriousness of the crimes” in light of the fact that defendant was previously convicted of a felony theft for which he received a three year suspended sentence. The trial judge stated that the defendant needed “special treatment” as opposed to a suspended sentence with probationary conditions. We agree and therefore hold that the total sentence of nine years imposed upon defendant for seven counts of theft is not excessive.

As for compliance with LSA-C.Cr.P. art. 894.1, a trial court need not articulate every aggravating and mitigating circumstance under the statute if the court indicates that it has considered the guidelines in particularizing the sentence to the offender. State v. Guiden, 399 So.2d 194 (La.1981), cert. denied, 454 U.S. 1150, 102 S.Ct. 1017, 71 L.Ed.2d 305 (1982).

In this instance, thorough review of the record reveals only a slight compliance by the trial court with LSA-C.Cr.P. art. 894.1 in sentencing defendant. The only statutory consideration adequately articulated by the trial judge was that “... a lesser sentence would deprecate the seriousness of the crime.” LSA-C.Cr.P. art. 894.1(A)(3). However, we hold that the articulated consideration under 894.1 and other factual reasons given by the trial judge are sufficient to uphold the sentences. The sentences do not appear to be excessive for a second offender and do not therefore constitute an abuse of the wide discretion accorded a trial judge in the imposition of sentences within the statutory limits. State v. Jones, supra; State v. Spencer, 374 So.2d 1195 (La.1979). Even when a trial judge fails to substantially comply with art. 894.1, we will not remand for re-sentencing unless the sentence is clearly excessive. State v. Jones, supra.

Accordingly, we find no justifiable reason or purpose to remand defendant’s case for re-sentencing.

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

AFFIRMED.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Darnell WILLIAMS, Defendant-Appellant.
    No. CR83-851.
    Court of Appeal of Louisiana, Third Circuit.
    March 7, 1984.

      D. Kent Savoie, Sulphur, for defendant-appellant.
    Leonard Knapp, Jr., and Robert R. Bryant, Lake Charles, for plaintiff-appel-lee.
    Before CUTRER, LABORDE and KNOLL, JJ.
   KNOLL, Judge.

The defendant, Darnell Williams, was charged by bill of information with armed robbery alleging that he, along with James Parker, Robert Parker, and David Young robbed Thomas Hartley, Bernard Bekhe-rus, Ouida Gardinier, and Debra Odum while armed with a dangerous weapon, a violation of LSA-R.S. 14:64. Darnell Williams withdrew his plea of not guilty and entered a plea of guilty to the charge of armed robbery. On August 8, 1983 the trial judge sentenced the defendant to serve 25 years at hard labor in the custody of the Louisiana Department of Corree-tions, without the benefit of probation, parole or suspension of sentence.

The defendant has appealed contending that the trial court erred in imposing an excessive sentence in violation of Article 1, § 20 of the Louisiana Constitution.

PACTS

All four defendants gave confessions which were not completely consistent. Therefore, we are reporting the facts of the case which are the most consistent in the confessions and correlate with the victims’ testimony at a preliminary examination.

On the evening of December 12, 1982, the defendant, Robert Parker, James Parker, and David Young were together drinking and talking about “shooting up some dope”. Not having money to buy dope, they came up with a plan to rob an elderly woman who lived alone at the end of Bram-mer Street. Her house was not in close proximity to the other houses situated on the dead end street.

The four defendants, using Robert Parker’s car, drove to David Young's home where they procured a double-barreled .12 gauge shotgun and a .22 caliber rifle. They drove to the dead end of Brammer Street with the intent to break in and rob Julia Brammer, a sick and elderly woman. When they arrived, the defendants observed a van carrying several people parked at Mrs. Brammer’s residence and decided to rob the occupants of the van.

They approached the van on foot. Darnell Williams and David Young were armed with the two weapons. The victims, four adults and seven children, were out Christmas carolling. The defendants made the victims exit the van, turn over their cash and valuables, and then forced them to lay face down on the ground. During the commission of the offense, one of the victims, Bernard Bekherus, was struck in the head with the butt of a weapon. Additionally, several of the victims, including the children, were physically abused and threats were made that they would be killed.

EXCESSIVENESS OF SENTENCE

The defendant complains that he received an excessive sentence in violation of Louisiana Constitutional Article 1, § 20. The imposition of a sentence even within the statutory limitations is subject to appellate review for excessiveness or an abuse of the trial court’s discretion. Louisiana Constitution, Art. 1, § 20; State v. Sepulvado, 367 So.2d 762 (La.1979). Compliance with C.Cr.P. Art. 894.1 is an important aid to the appellate courts in reviewing a sentence for excessiveness. Sepulvado, supra; State v. Forshee, 395 So.2d 742 (La.1981). Although the trial court does not have to articulate every aggravating and mitigating factor outlined in LSA-C.Cr.P. Art. 894.1, the record must establish that he gave adequate consideration of these guidelines in particularizing defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983); State v. Ray, 423 So.2d 1116 (La.1982). The sentencing court is given wide discretion in the imposition of sentences within statutory limits and the sentence should not be set aside as excessive absent manifest abuse of the sentencing court’s discretion. For a sentence to be excessive, 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, or nothing more than the purposeless and needless imposition of pain and suffering. State v. Smith, supra; State v. Bonanno, 384 So.2d 355 (La.1980).

Defendant argues that the sentencing court did not give adequate consideration to the mitigating circumstances set forth in LSA-C.Cr.P. Art. 894.1. He rests his contention on his youth (19 years of age), his lack of prior felony convictions, the absence of a showing that he is a dangerous offender, that he did not point a gun at any of the victims, that no acts of violence can be attributed to him, and that he did not mastermind the offense.

During the sentencing hearing, the sentencing court gave counsel for the defendant the opportunity to correct any inconsistencies in the presentenee investigation and to make any comments he deemed appropriate regarding the sentencing of defendant. He pointed out that only one of the victims received physical injury, that none of the victims was able to identify which of the defendants perpetrated any of the physical abuse, and that the defendant was under the influence of drugs and alcohol and not completely in control of his faculties. The presentence investigation report revealed that: defendant was nineteen years of age; he had two prior misdemeanor convictions, and, although he had no prior felony convictions, he did have a juvenile record.

After a lengthy sentencing hearing, the sentencing court concluded that: defendant had threatened the well being of a number of children and adults; that greed was the only motivation for the armed robbery; the defendant took an active role in obtaining the weapons used in the robbery; and that a lesser sentence would deprecate the seriousness of this particular offense. Referring to the mitigating circumstances, the sentencing court also stated: that the defendant had no prior felony convictions and had a relatively crime-free youth; that some hardship would be imposed upon his parents; that the sentencing court had received numerous letters recommending leniency; and that he was of a young age. The court also noted for the record that it did not consider the defendant as using a weapon to threaten the victims or physically abusing any of the individuals.

It is not necessary for the sentencing court to enumerate every factor in LSA-C.Cr.P. Art. 894.1 as long as the guidelines are considered. State v. Smith, supra; State v. Bradley, 414 So.2d 724 (La.1982). The sentencing court considered all the mitigating factors. When Art. 894.1 has been complied with, a sentence should not be set aside as excessive in the absence of an abuse of the court’s wide sentencing discretion. State v. Dunns, 441 So.2d 745 (La.1983); State v. Cox, 441 So.2d 723 (La.1983); State v. Spencer, 374 So.2d 1195 (La.1979). We find the imposition of a twenty-five year sentence in this case not to be excessive. The maximum sentence the defendant could have received was 99 years. R.S. 14:64. The sentence he received was approximately one-fourth of the maximum sentence. His sentence is in the lower range when compared to the maximum sentence he could have received. The crime the defendant committed was heinous and violent. To commit armed robbery of Christmas carollers consisting of four adults and seven children, striking and abusing them in furtherance of the robbery, ranks among the most heartless of criminal acts.

DECREE

For the foregoing reasons, the conviction and sentence of the defendant, Darnell Williams, are affirmed.

AFFIRMED.


author: GUIDRY, Judge.

text:
    Ruby N. THOMISEE, Plaintiff-Appellee, v. Billie Joe PEARSON, Defendant-Appellant.
    No. 84-164.
    Court of Appeal of Louisiana, Third Circuit.
    March 8, 1984.

      James E. Beal, Natchitoches, for defendant-appellant.
    Gahagan & Gahagan, Marvin F. Gaha-gan, Natchitoches, for plaintiff-appellee.
    Before GUIDRY, STOKER and DOU-CET, JJ.
   GUIDRY, Judge.

MOTION TO DISMISS

The plaintiff-appellee, Ruby N. Thomi-see, moves to dismiss the appeal of Billy Joe Pearson, defendant-appellant, as being untimely filed. We deny the motion to dismiss the appeal.

Pearson appealed an unfavorable judgment awarding custody of the minor child, Gregory Doyle Pearson, to Thomisee. At the conclusion of the hearing on the rule on October 18, 1983, the trial court ruled in favor of Thomisee. In accordance therewith, judgment was signed on October 31, 1983. On November 2, 1983, Pearson moved for and obtained a devolutive appeal. Costs of the appeal were not paid until January 9, 1984.

No security is required for a devolutive appeal. LSA-C.C.P. Art. 2124. Therefore, Pearson’s appeal was perfected on November 2, 1983. Under the express provisions of LSA-C.C.P. Arts. 3942 and 3943 the appeal must be perfected within 30 days. We, therefore, hold that the instant appeal was timely.

As concerns the untimely payment of the estimated costs and fees, this court is without jurisdiction. Succession of Stafford, 424 So.2d 1244 (La.App. 1st Cir.1982). The proper forum for a resolution of this issue is in the trial court. LSA-C.C.P. Arts. 2088 and 2126. Additionally, once an appeal has been timely lodged in the appellate- court, the issue of the appellant’s failure to timely pay cost is moot. Smith v. State, Dept. of Public Safety, 352 So.2d 443 (La.App. 3rd Cir.1977).

For the above and foregoing reasons the motion to dismiss is denied. Plaintiff-ap-pellee, Ruby N. Thomisee, is assessed costs of these proceedings.

MOTION DENIED.


author: HAWKINS, Justice,

text:
    Manuel GIRTON v. STATE of Mississippi.
    No. 53977.
    Supreme Court of Mississippi.
    Feb. 8, 1984.
    Rehearing Denied March 14, 1984.

      John Booth Farese, Farese, Farese & Farese, Ashland, Russell X. Thompson, Memphis, Tenn., for appellant.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
    Before PATTERSON, C.J., and HAWKINS and ROBERTSON, JJ.
   HAWKINS, Justice,

for the Court:

Manual Girton was indicted by the grand jury of DeSoto County for murder of one John Cooley, tried and convicted of manslaughter and sentenced to serve a term of seven (7) years in the Mississippi Department of Corrections.

We first reject Girton's contention on appeal that the evidence failed to support the verdict of the jury. It is only necessary that we address the propriety of the circuit judge’s subsequent instruction to the jury during its deliberation.

When both sides had rested, the circuit judge instructed the jury. Among the instructions granted were the following:

Instruction S-l
The Court instructs the Jury that if death is inflicted upon a person with a deadly weapon, in a manner calculated to destroy life, then malice and intent to kill may be inferred from the use of the weapon.
The Court instructs the Jury that in order to justify a homicide on grounds of self-defense, the danger to the Defendant must be actual, present, and urgent, or the Defendant must have reasonable grounds to apprehend design of assaulted party to kill him or do him great bodily harm, coupled with imminent danger of such design being accomplished, and mere fear, apprehension or belief, will not justify the assault.
The Court instructs the Jury that in this case that unless you believe from the evidence in this case that MANUEL GIR-TON, had reasonable, actual and urgent grounds to believe that the deceased, JOHN D. FRANK COOLEY, intended to do him some great bodily harm, and that he the said deceased, JOHN D. FRANK COOLEY, had the present ability to carry out said design to do the said MANUEL GIRTON great bodily harm, then and only then, was MANUEL GIR-TON, justified in taking the life of JOHN D. FRANK COOLEY.
Instruction S-6
The Court instructs the Jury that in order to justify a homicide on the plea of self-defense, there must be something shown in the conduct of the deceased indicating a present intention to kill or do some great personal injury to the slayer and imminent danger of such intention being accomplished; mere fears or belief are insufficient. The danger must be such as to lead a person reasonably to believe that the killing was necessary to prevent the deceased from killing him or doing him some great bodily harm.
A party may have an apprehension that his life is in danger and believe the grounds of his apprehension just and reasonable, and yet he acts at his peril. He is not the final judge; the Jury may determine the reasonableness of the ground upon which he acted.

When the jury had deliberated three hours and fifteen minutes, the circuit judge received the following written request from a juror:

To me the State has not proved beyond a reasonable doubt that Mr. Girton was put into a position of having his back to the wall, pushed into a corner and made to take some sort of action to protect his life, family or home. The action he took may not have been proper, but it might have been the only action he felt he could take at the time. Some of the other Jurors tell me I am not following the law as it was laid out for us (And there is what, I believe to be a period) My feelings, if I am wrong, please show me at what point I am failing and I could possibly change my opinion. — signed Boyd Goodnight.

Over the objection that the question contained in the request was adequately covered and further comment would be prejudicial, the circuit judge wrote the following instructions to the jury:

The State does not have to prove that the acts of the Defendant were reasonable. It is a question of fact for the Jury to determine. The reasonableness of his acts are factual questions. Apply the written instructions to the facts as you determine them to be.

Less than thirty minutes following receipt of this instruction the jury returned a verdict of guilty of manslaughter.

Girton and the decedent were members of a gypsy group. It is apparently a gypsy custom to have open fights between women who have fallen out, at which occasion a crowd gathers to witness the event. Earlier in the day, on Christmas Eve, 1980, Girton’s wife and her sister had a fight with the decedent’s sister, Rachel, in which Rachel came out second-best. Rachel demanded a re-match under their gypsy code “duello”, which was accepted. She and Girton’s sister-in-law, Pansy, were having it out in front of Girton’s trailer before a crowd of interested, and no doubt, partisan gypsy spectators.

Not surprisingly during these proceedings, one or two shots were fired. A bullet struck the decedent and during hospitalization eleven days later, he died.

Following the shooting Girton and his family promptly had serious business in another state. He was later apprehended in Nashville, Tennessee.

The defense of his two Tennessee attorneys at trial, besides claiming Girton’s weapon did not fire the fatal shot, was defense of his home and family. The state’s position and proof was no one was interfering with the fight, and none of the group, with the sole exception of Rachel, was physically threatening anybody. Rachel, as stated, and Pansy, were occupied with one another.

This setting provided the basis for the two instructions given to the jury by the trial judge during his charge.

Although we can only surmise, it was apparently this rather unusual settlement procedure which prompted the inquiry from Juror Goodnight.

LAW

One of the most nettlesome problems faced by a circuit judge is an inquiry from the jury when it has retired to reach its verdict. The ensuing colloquy between the judge and jury, or instruction resulting therefrom, or both, have been one of the grounds of many appeals to this Court.

We really cannot lay down hard and fast legal principles to govern the myriad circumstances in which a problem may arise.

The patient and attentive judge has heard the evidence, following which he has diligently endeavored to instruct the jury on every possible relevant aspect of the case to guide this body in its deliberations. Having done so, and while he, the parties, and their counsel await the verdict, the judge is called upon to answer some question a juror has about the case.

What is he to do? In deference we offer some common sense suggestions.

Our first recommendation is that the circuit judge determine whether it is necessary to give any further instruction. Unless it is necessary to give another instruction for clarity or to cover an omission, it is necessary that no further instruction be given.

Of course, a circuit judge may realize such a necessity even in the absence of an inquiry from the jury, and under such circumstances quite properly may give the jury additional written instructions. See Wages v. State, 210 Miss. 187, 49 So.2d 246 (1950).

The second recommendation requires the trial judge to constantly bear in mind that justice in every trial requires communication and understanding. Unless words are clearly understood, there is only a communication of sound, or worse, a distinct possibility of the receiver of the information placing a different meaning on what is spoken or written than the author meant. This is critical in any communication from the circuit judge to the jury, or between the judge and jury.

Therefore, a judge should make absolutely certain he understands precisely what is meant in any inquiry from the jury. Unless he is quite certain precisely what the jury means in its inquiry, how can the judge know he is responding properly?

In this case, the circuit judge may have understood precisely what Juror Goodnight meant. While this Court believes we have some understanding of what was troubling this juror, we must at the same time concede we are not sure.

If the juror was indeed resolving an inquiry on a certain principle of law as appears from this record, and as the circuit judge apparently understood it, the principle of law had already been thoroughly covered in the two previous instructions. Also, as we have noted, we cannot be sure what this juror meant.

In Warren v. State, 336 So.2d 726 (1976), the jury appeared deadlocked, whereupon the circuit judge gave an instruction on punishment of murder and manslaughter convictions, and, the jury remaining deadlocked, the circuit judge gave an additional and more detailed instruction on punishment. The defendant objected on the ground there was an implication in the instructions that if the jury convicted of manslaughter the court would give a lesser sentence. We reversed a manslaughter conviction returned after 20 minutes’ deliberation following the final instruction. The subsequent instructions of the circuit judge did imply he would give a lighter sentence if the jury returned a guilty verdict on manslaughter.

A closer ease is Martin v. State, 415 So.2d 706 (1982). The jury was deadlocked ten to two, and reported to the court the two would not change their vote unless they could plead for a sentence. The circuit judge asked if they meant mercy, and received an affirmative reply. The circuit judge then told them they could write mercy in their verdict, it would not be binding upon the court, but they could do so.

When the jury retired a motion was made for a mistrial, counsel stating the following as to the jury: “I don’t think they realize that being advised they can put that on the verdict would mean absolutely nothing to the Court or would be — have no binding effect on the court.”

The motion for mistrial was overruled, the circuit judge believing he had made the point clear enough.

In reversing, we agree with the defendant, stating, p. 709:

The statement to the jury that it could include a recommendation of mercy as part of its verdict could have been interpreted as an invitation by the trial judge that the jury’s recommendation would have a bearing on appellant’s punishment and may have caused the two jurors to change their verdicts to guilty.

Martin does not hold that it is necessarily error for a jury to be instructed, upon specific inquiry, that in returning a verdict it can ask for mercy, but does hold that if a circuit judge so informs a jury he is also under duty to make it clear beyond question that this is not any invitation or inducement to the jury to return a guilty verdict. The circuit judge, not the jury, decides upon the punishment, in most criminal cases.

In this case we do not have a situation as in either Warren or Martin.

In Carrol v. State, 391 So.2d 1000 (1980), the jury during deliberation asked the circuit judge to interpret “premeditation”. Following a colloquy, the circuit judge told them “premeditation” was not in the instructions, and the phrase “malice aforethought” was to be considered.

The jury then asked for an interpretation of “malice aforethought”. The court responded, p. 1003:

All right, let me say this. All I can say about malice aforethought is that there is no time limit as long as the malice aforethought existed before the incident occurred, and there is no definition of law of any length of time.

In reversing, we stated, p. 1004:

It is pointed out by appellant that the homicide in this case occurred as the result of a sudden quarrel between friends and neighbors and that the State, itself, requested and was granted several instructions informing the jury that it might convict appellant of manslaughter. Under the facts and circumstances and the instructions referred to, it is argued that the actions of the trial court in entering upon the above discussion, and in defining malice aforethought or premeditation to the jury was extremely harmful and prejudicial and influenced the jury to convict of murder rather than manslaughter. Ordinarily, parties are afforded an opportunity to examine and object to instructions proposed to be given to the jury. Here, no reasonable opportunity was afforded the appellant to object until the jury retired. When that happened, the defense motion for a mistrial was entered immediately. We have concluded that substantial justice and traditional notions of fair play require that the case be reversed and remanded for a new trial.

In Morgan v. State, 370 So.2d 231 (1979), when the jury returned its verdict into open court, the jurors were polled.

COURT: Is this your verdict? Yes.
BOONE: I guess so ... I did not not want to be the one to hang the jury.
COURT: Do not say anything else. Is this your verdict?
BOONE: Yes.

In reversing and remanding, we stated, p. 232:

We are of the opinion that when the individual juror expressed a doubt as to whether he was voting his convictions in response to the instructions of the court or whether he was voting the way he did, contrary to his conviction, so as not to be unpopular with his fellow jurors, the judge should not have cut the juror off from expressing his feelings. The judge should have allowed the juror to express himself and then inquired whether the juror desired additional time in which to consult with his fellow jurors, or he could have declined to poll the jury further and returned the jury for further deliberation. In either event, additional instructions appropriate to the circumstances could be given if requested by the attorneys in writing or if deemed necessary by the court.
We are of the opinion that the questionable verdict in this case requires us to rule that no verdict either of acquittal or conviction was reached and that the case must be tried anew. By our holding we are not saying that a dialogue between the court and jury is to be encouraged except in those unusual circumstances such as the one presented in this case. Ordinarily, as little verbal exchange as possible initiated by the jurors is desirable.

In the recent case of Stubbs v. State, 441 So.2d 1386 (Miss.1983), there was a colloquy between the circuit judge and the jury bearing similarity both to Morgan and Martin, supra. A juror expressed some hesitancy about his verdict, and the circuit judge permitted a limited expression, and directed the jury to return for further deliberation. We did not find in Stubbs the possibility of misinterpretation by the jury that the judge’s statement was an inducement or encouragement to render a guilty verdict, and therefore affirmed.

In Newell v. State, 308 So.2d 68 (1975), there were two criminal defendants, and after the jury had retired to consider a verdict, it inquired of the circuit judge whether it could convict one and acquit the other.

The court responded as follows in writing: “The court has received an inquiry from the jury as follows: Can the jury convict one and acquit the other? The answer the Court gives you to this question is that you can.”

In that case we stated, at p. 69:

It is first argued that after the jury retired to consider its verdict, the court could not thereafter given an instruction to the jury. In Wages v. State, 210 Miss. 187, 49 So.2d 246 (1950), this Court found no reversible error when, in response to an inquiry from the jury after it had retired to consider its verdict, the trial court granted an instruction. Conceding that the proper procedure requires that all instructions be submitted before the jury retires, the Court in Wages said that a clear understanding by the jury of the controlling issues was more important that following the letter of procedural formula, and that what the jurors are instructed upon is more important than when it is done. On the authority of Wages, we hold that instructing the jury after it had retired to consider its verdict was not reversible error. Rule 14, Uniform Rules of the Circuit Courts, requiring instructions to be filed twenty-four hours in advance of trial may be and often is, out of necessity, waived.

In this case, because the meaning of the juror’s inquiry was not completely free from doubt, it would have been preferable for the circuit judge to see that the meaning was unquestionably clear before making a determination whether a response was necessary. Further, even the meaning ascribed by the circuit judge to the inquiry required nothing more than a court direction to follow the instructions.

At the same time we can find absolutely nothing about either the inquiry or the circuit judge’s response which would induce an otherwise doubtful juror to return a verdict of guilty.

Accordingly, we affirm.

AFFIRMED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, DAN M. LEE, PRATHER and ROBERTSON, JJ., concur.

      . Girton and his witnesses denied this custom at trial.


author: PRATHER, Justice,

text:
    Fred R. MURRAY, Sr. v. Laura Bell M. LAIRD, et al.
    No. 54085.
    Supreme Court of Mississippi.
    Feb. 22, 1984.

      K. Maxwell Graves, Jr., Meadville, W.O. Dillard, Bettie Ruth Johnson, Jackson, for appellant.
    H.B. Mayes McGehee, McGehee, Mc-Gehee & Torrey, Meadville, for appellees.
    Before PATTERSON,' PRATHER and ROBERTSON, JJ.
   PRATHER, Justice,

for the Court:

This appeal challenges the cancellation of a deed in a suit brought by six siblings against their brother, Fred R. Murray, Sr. on the ground of the fraud and undue influence exerted by their brother upon their deceased father, Eli Murray. The deed reserved a life estate in the father with remainder interest to the appellant Fred Murray, Sr. in an eighty acre tract of land. The Chancery Court of Franklin County found that Fred Murray, Sr. occupied a close confidential relationship with his father, and that the proof failed to overcome the presumption of undue influence arising from that relationship. From the cancellation of the deed by the chancery court, this appeal is sought by Fred R. Murray, Sr., assigning as error:

(1) That the trial court erred in finding that the presumption of undue influence existed under these facts; and

(2) That, assuming that the court was correct in applying the presumption of undue influence, then the trial court erred in finding that the appellant had not overcome the presumption by clear and convincing evidence. We affirm the chancery court.-

I.

To the marriage of Eli Murray and Lizzie Murray were born eight children: Laura M. Laird, Helen M. Delaney, Lizzie M. Arnold, Yertie M. Cothren, Nell M. Pickett, Ike Murray, Fred Murray, and Darlene M. Beck. Lizzie Murray died in 1951, and Eli Murray continued to live at the homeplace for some twenty-five years until he went to a nursing home at age 87.

In December, 1976 a trust agreement was signed by Eli Murray designating Ike Murray as trustee. Ike Murray transferred funds of his father into the trust account by a check signed by the “mark” of Eli Murray with attesting witnesses. However, upon learning that there was some disagreement from his siblings about the trust, Ike asked to be removed as trustee in January, 1977.

After the trust was terminated, Eli Murray was hospitalized. Fred Murray began using Eli’s money for Eli’s expenses with the assistance of his sister Helen until a dispute arose. Thereafter, the business and financial management of Eli’s monies were controlled by Fred Murray upon whom Eli was dependent. Fred Murray also handled mineral leasing on the real estate.

The transaction that gave rise to this lawsuit was not the financial management by Fred, but was the inter vivos deed transfer by Eli Murray to Fred covering the land.

In this regard on October 20, 1978, Fred Murray signed his father out of the nursing home and carried him to the law office of Maxwell Graves with whom Fred Murray had previously spoken. Mr. Graves advised Fred that he would not prepare the deed until Eli’s competency to sign the deed was discussed with Eli’s doctor. The doctor did not see or talk with Eli on that date but stated that if Eli could hear, he could understand. Eli Murray told the attorney to prepare a deed to Fred with the reservation of a life estate in himself. The deed was read and explained to Eli Murray before he signed it by the attorney and his secretary.

The record shows that the grantor was 89 years old, a resident of a nursing home, with poor eyesight and hearing, unable to read or write, and had health problems that required surgery in recent years.

A significant fact was that the attorney did not know whether he represented the father or son, but the-fee for preparation of the deed was paid by Fred Murray from his own funds. Fred testified that the transfer was his father’s desire. The testimony is somewhat confused as to Fred’s presence in the room at the time of the execution. The attorney testified that Fred was not present; his secretary testified that Fred was “in and out” of the office.

The deed was recorded the same day of execution, and its recordation was discovered by the other siblings during the lifetime of Eli. No legal action was taken by them except to talk to an attorney. Additionally, the existence of the trust agreement executed by Eli in 1976 was discovered by Fred before Eli’s death. In 1980 Fred employed Maxwell Graves to investigate the validity of his deed in view of the trust agreement. Fred paid $500.00 for legal fees from his father’s monies for this research on the direction of his father. Testimony from witnesses indicated that Eli’s expressed wishes made during his life were to equally divide the land among his children.

The chancellor found the relationship of father and son to be one of a close confidential nature which gave rise to the presumption of undue influence. He further found that the presumption was not overcome by clear and convincing proof. The deed was cancelled.

II.

The law in this state on fiduciary or confidential relationships and undue influence is well settled. ,

This Court held that a confidential relationship did not have to be a legal one, but that the relation may be moral, domestic, or personal. Hendricks v. James, 421 So.2d 1031 (Miss.1982); Bourn v. Bourn, 163 Miss. 71, 140 So. 518 (1932). The confidential relationship arises when a dominant over-mastering influence controls over a dependent person or trust, justifiably reposed. Hendricks v. James, supra, McDowell v. Pennington, 394 So.2d 323 (Miss.1981), Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959).

Its application has been made to both inter vivos and testamentary transactions. Meek v. Perry, 36 Miss. 190 (1858) Croft v. Alder, supra, In re Will of Moses, 227 So.2d 829 (Miss.1969), (as to testamentary transactions), Ham v. Ham, 146 Miss. 161, 110 So. 583 (1926) (as to inter vivos transfers).

The early 1858 case of Meek v. Perry, supra, traced the history of undue influence from our common law origins and established that in situations involving confidential relationships, a presumption of undue influence arises. That presumption could be rebutted only by showing the fullest deliberation on the part of the testator and abundant good faith on the part of the beneficiary.

The case of Ham v. Ham, supra, added an additional requirement in overcoming the presumption of undue influence in confidential relationship cases. The third requirement necessary to rebut the presumption of undue influence was to have the grantor/testator seek independent advice and counsel of a third party devoted wholly to the interests of the gran tor/testator. See In re Will of Moses, supra.

Thus, our law may be summarized to state that when the circumstances give rise to a presumption of undue influence, then the burden of going forward with the proof shifts to the grantee/beneficiary to prove by clear and convincing evidence of:

(1) Good faith on the part of the grantee/beneficiary;

(2) Grantor’s full knowledge and deliberation of his actions and their consequences; and

(3) Advice of (a) competent person, (b) disconnected from the grantee and (c) devoted wholly to the grantor/testator’s interest. Wofford v. Wofford, 244 Miss. 442, 142 So.2d 188 (1962); Croft v. Alder, 237 Miss. 713, 115 So.2d 683 (1959), Thomas v. Jolly, 251 Miss. 448, 170 So.2d 16 (1964). Our most recent pronouncement Of these unwavering principles were discussed in Hendricks v. James, supra, in a detailed opinion by Justice Hawkins.

The question which the appellant here asks is the type of proof necessary to overcome the presumption. Counsel asks for guidelines from this Court; however, this Court cannot set forth guides that fit all situations. Of necessity, each case must be determined individually on its merits. The evidence of undue influence is usually circumstantial and intangible. Phillips v. Ford, 250 Miss. 425, 164 So.2d 908 (1964). Affirmative and positive proof is needed to overcome this presumption.

However, from case decisions some affirmative and positive factors emerge that may be considered as significant to overcome the inference of the presumption.

(1) Important factors on the question of good faith are, (a) the determination of the identity of the initiating party in seeking preparation of the instrument, (b) the place of the execution of the instrument and in whose presence, (c) what consideration and fee were paid, if any, and (d) by whom paid, and (e) the secrecy or openness given the execution of an instrument. The Court recognizes that prior disclosure of a donation is not a prerequisite to its validity; but the disclosure of intent made prior to execution of an instrument helps dilute the undue influence presumption.

(2) Factors important to address the grantor/testator’s knowledge, at the time of execution of any instrument are (a) his awareness of his total assets and their general value, (b) an understanding by him of the persons who would be the natural inheritors of his bounty under the laws of descent and distribution or under a prior will and how the proposed change would legally affect that prior will or natural distribution, (c) whether non-relative beneficiaries would be excluded or included and, (d) knowledge of who controls his finances and business and by what method, and if controlled by another, how dependent is the grantor/testator on him and how susceptible to his influence.

The guidelines of our prior cases suggest that the testator/ grantor should give a thoughtful deliberation to all of these factors. No set amount of time is stated as required, but a positive factor to overcome the undue influence presumption is a mature and thoughtful weighing of the legal consequences of a grantor/testator's action.

(3) Turning now to the last factor to be discussed, (a) advice of a competent person, (b) disconnected from the grantee, and (c) devoted wholly to the grantor/testator’s interest, we note three factors to meet. The advisor has to have conferred with the grantor/testator prior to the document drafting. McDowell v. Pennington, supra. However, “independent” advice in this sense means advice separate and apart from the beneficiary, both in the initiation and execution of the instrument.

The participation of the beneficiary/grantee, or someone closely related to the beneficiary, arouses suspicious circumstances that negate independent action. McDowell v. Pennington, supra, Croft, supra.

As a necessary adjunct to “advise and counsel”, an advisor must have (a) knowledge upon which to base advice. Therefore, all factors previously named above with reference to the grantor/testator’s full knowledge of his circumstances and the grantee/beneficiary’s good faith must also be delved into by the advisor as a basis for his recommendation. The advisor needs to (b) know of the relationship of the grantor/testator to any beneficiary/grantee and the purpose or reason of an unequal division or distribution to do-nees/heirs of .the same class, (c) the relationship of the non-blood donee and the duration of that relationship; (d) the relationship, or lack of relationship, to kinsmen, (e) knowledge of tax consequences (f) information as to the marital background, age, physical and mental health of a grant- or/testator. (g) Inquiry by the advisor into whether the disposition is the free and voluntary act of an independent thinking, strong willed individual or whether the decision is imposed by the dominance of an over-reaching person will help him render better advice. All these factors will help the advisor learn of antecedent agencies that gave rise to the presumption of undue influence.

The advisor does not have to be an attorney, but must be competent to advise and be wholly dedicated to the interests of the grantor/testator. If the chosen advis- or does not have ability to answer all questions, persons with specialities can be secured.

It can be noted that consultation with an attorney does not necessarily overcome the presumption. The advisor has to be more than a mere scrivener; he has to render meaningful independent counsel. Moses, supra. But the grantor does not have to make his acts conform to the advice however. Montgomery v. Willbanks, 198 Okl. 684, 181 P.2d 240 (1947).

Even after all testimony relating to these named factors are received, it is still to the trier of fact to judge the credibility of the witnesses and the worth of their testimony. Moses, supra.

III.

Applying these principles to the facts of this case, it is clear that the trial judge was correct in cancelling the deed in question.

The grantee in this situation handled the business and financial transactions of his father. The father was old, of poor health, with poor eyesight and hearing. The grantee participated in the initiating, execution, and payment of the deed in -question. The proof was sufficient to create the presumption of undue influence at the time of the execution of the deed.

The proof offered by the grantee to rebut the presumption showed that the attorney who was secured and paid by the grantee and the attorney’s secretary, were the only advisors. There was testimony by the attorney that he did not know which was the client — the father or the son. No independent advice was proven. The inquiry by the attorney of the mental competency of the father relates to testamentary capacity, not undue influence, although that is also a factor to be considered in undue influence cases.

Therefore, we conclude with the chancery court that the grantee failed to meet his burden of proof by clear and convincing evidence that the grantor received disinterested advice from an independent person wholly dedicated to the interests of Eli Murray. The deed was correctly cancelled.

AFFIRMED.

PATTERSON, C.J., WALKER and ROY NOBLE LEE, P.JJ., and BOWLING, HAWKINS, DAN M. LEE, ROBERTSON and SULLIVAN, JJ., concur.