text:
    STATE of Louisiana v. Calvin DONALDSON.
    No. KA 0731.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Ernest Lee Caulfield, New Orleans, for appellant.
    Harry F. Connick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.
    Before REDMANN, C.J., and SCHOTT and CIACCIO, JJ.
   SCHOTT, Judge.

Defendant was convicted of armed robbery in violation of LSA-R.S. 14:64 and sentenced as an habitual offender under R.S. 15:529.1 to 198 years of hard labor.

In the early evening hours of September 22, 1980, the victim, Mrs. Doris Sparrow, and her friend, Mrs. Henrieu Carter, were walking near Jackson Square in the French Quarter in New Orleans when they were accosted by a man with a knife. When Sparrow resisted the man began chopping at her arm and her purse on the arm until the purse became free. He ran away with the purse. A witness across the street, John McParish, chased after the man until the offender jumped on a Public Service Bus. McParish, now joined by a number of other bystanders, managed to hold the bus for a few moments when the police came on the scene. They boarded the bus and found defendant crouched in the rear of the bus still in the possession of the knife and Sparrow’s purse.

Our review of the record discloses no errors patent. Defendant assigned 11 errors but abandoned assignments 4 and 7 by failing to brief them.

ASSIGNMENT OF ERROR 1

By this assignment defendant contends that the trial court erred in denying his motion for continuance, which was on the ground that two crucial witnesses ordered subpoenaed were not present at trial. The record shows that defendant did request that subpoenas be issued to the witnesses. The minutes reflect that his counsel made an oral motion for continuance prior to the commencement of the trial. Those minutes state that the reasons for the continuance were noted by the court reporter as were the reasons for the trial judge’s denial of the motion. However, such reasons are not in the record. In any event, C.Cr.P. Art. 709 provides that a motion for a continuance based on the absence of a witness must state 1) the facts to which the absent witness is expected to testify, the materiality of the testimony, and the necessity for the presence of the witness; 2) a showing of the probability that the witness will be available at the time to which the trial is continued, and 3) facts showing that defendant has exercised due diligence in attempting to procure the witness’s attendance. While defendant may have satisfied the third requirement by his ordering the subpoenaes well in advance nothing in the record or transcript satisfies the other two requirements. As in State v. Washington, 407 So.2d 1138 (La.1981) and State v. Hopkins, 351 So.2d 474 (La.1977), this assignment has no merit.

ASSIGNMENT OF ERROR 2

By this assignment defendant contends that the state should have been charged with a challenge for cause when a juror was excused based on the statement by the prosecutor that the juror was preoccupied with family problems and unable to give the case his complete attention. Since the state used only 9 of its 12 peremptory challenges the designation of the juror’s challenge as one for cause is not a ground for complaint. State v. George, 346 So.2d 694 (La.1977). This assignment has no merit.

ASSIGNMENTS OF ERROR 3 AND 10

By these assignments defendant complains about the prosecutor’s conduct during cross examination of defendant wherein he addressed defendant as “Mr. Burglar.” The evidence as to defendant’s guilt was overwhelming. Furthermore, while defendant was on the witness stand he admitted to pleading guilty to simple burglary in the past. The jury was instructed to disregard the prosecutor’s remark. Prosecutorial misconduct in the form of an improper remark is not a ground for a mistrial under these circumstances. State v. Green, 416 So.2d 539 (La.1982). The assignments have no merit.

ASSIGNMENT OF ERROR 6

By this assignment defendant contends that he was entitled to a mistrial for which he moved on the ground that the state in answer to defendant’s motion to suppress identification had responded that no identification had taken place. The state’s answer to defendant’s motion to suppress identification is not in the record. At trial the victim stated that she was told by the police officer that the man who robbed her had been arrested and was in the police car. She indicated that in her state of shock, having just been slashed repeatedly and to the extent that she required 24 stitches she was not in a position to identify defendant in the police car. The victim was not asked to and did not make a pretrial identification of defendant. She did identify him at trial. Defendant was also identified at trial by Sparrow’s companion, Carter, by McParish who witnessed the crime and kept the defendant within his view the entire time he was chasing him around the area until defendant got on the bus, and by the police officer who found defendant crouching in the back of the bus with the knife and the purse. This assignment has no merit.

ASSIGNMENTS OF ERROR 8 AND 9

By these assignments defendant contends that it was error to allow McParish to testify from a map that he and the prosecutor had charted outside the courtroom and to introduce the map into evidence. This added nothing to the testimony of McParish and the body of evidence against defendant, which was overwhelming. McParish testified exactly what his route was in chasing after defendant, and his testimony was in full compliance with R.S. 15:463’s requirements that a witness can testify only as to facts within his knowledge. The map could have been marked in the presence of the jury in the same way that it was marked prior to going before the jury thereby saving time and delay. Defendant had ample opportunity to examine the map and cross examine McParish. These assignments have no merit.

ASSIGNMENT OF ERROR 11

By this assignment defendant complains of the trial judge’s refusal to grant a mistrial moved for on the ground that one of the jurors slept during a portion of the court’s charge to the jury. The record does not support the alleged sleeping. The trial judge specifically said no one was sleeping, and no effort was made by defendant to prove that the juror was sleeping. The assignment has no merit.

Before passing to the final assignment of error which has to do with the sentence, we confirm that the record has been reviewed for sufficiency of evidence in accordance with State v. Raymo, 419 So.2d 858 (La.1982), and measures up to the standards required for a proper conviction under Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Any rational trier of fact viewing the evidence in a light most favorable to the prosecution could conclude that the state proved the essential elements of the crime beyond a reasonable doubt. State v. Fuller, 414 So.2d 306 (La. (1982). Since we have' already covered the evidence it would be repetitious to state it here, except to say that this defendant was caught red handed committing the crime and was immediately apprehended. Fortunately there were reliable eye witnesses who saw and participated in the entire sequence of events leading to his apprehension.

ASSIGNMENT OF ERROR 5

By this assignment defendant contends that his sentence was excessive because 1) it was imposed without compliance with C.Cr.P. Art. 894.1, 2) it was severe solely because he exercised his constitutional right to trial rather than plead guilty, and 3) it was excessive and constituted cruel and inhuman punishment in violation of state and federal constitutions. We first address the argued non-compliance with Art. 894.1.

In State v. Oubichon, 422 So.2d 1140 (La. 1982) the court remanded for resentencing for non-compliance with Art. 894.1 finding that the trial judge failed to perform his duty under the article to “articulate” the reasons for his sentences thereby demonstrating why maximum sentences were appropriate as opposed to something less.

“Upon imposition of the sentences, the trial judge denounced each defendant as a violent recidivist beyond any hope of rehabilitation. However, he failed to state the facts which support this conclusion and gave no reason for finding these particular defendants less reformable and more deserving of punishment than other persons in their offender classes who have received lesser sentences for the same crime.”

A reviewing court must have the benefit of the trial court's reasons for the sentence in order to determine whether a sentence is excessive where defendant complains, as here, that his constitutional protection has been violated. State v. Baranda, 388 So.2d 759 (La.1980); State v. Sepulvado, 367 So.2d 762 (La.1979).

In the instant case the trial judge recited some facts but the question is whether there was a sufficient “articulation” to satisfy the requirements of C.Cr.P. Art. 894.1. The article begins with three criteria which would mandate a sentence of imprisonment. They are as follows:

“(1) There is an undue risk that during the period of a suspended sentence or probation the defendant will commit another crime;
(2) The defendant is in need of correctional treatment of a custodial environment that can be provided most effectively by his commitment to an institution; or
(3) A lesser sentence will deprecate the seriousness of defendant’s crime.”

During the sentencing colloquy the judge first verified that defendant in fact was convicted of simple burglary on April 26, 1979, and then reconfirmed what defendant had said on the witness stand that he was convicted of simple battery in 1976 in connection with a street fight and was convicted of theft on September 3, 1976. The judge then referred to the fact that defendant had committed all these crimes already even though he was but thirty-one years of age and noted that each of his crimes was progressively worse.

As far as the first three criteria of Art. 894.1 are concerned any other statement by the judge would have been superfluous. Here we have in defendant a man who has been convicted of a vicious crime on top of three previous crimes within a short span of time. No one can question that he is a risk to society and needs the custodial environment of a correctional institution. As to whether some lesser sentence would deprecate the seriousness of defendant’s crime the trial judge specifically noted the appropriateness of maximum penalty considering this man’s record. The record clearly supports the conclusion that anything less than a long jail sentence would deprecate the seriousness of his crime.

Next, we consider whether the trial judge’s remarks satisfy the other eleven criteria to which he was mandated to accord weight under Art. 894.1 B. These are:

“(1) The defendant’s criminal conduct neither caused nor threatened serious harm;
(2) The defendant did not contemplate that his criminal conduct would cause or threaten serious harm;
(3) The defendant acted under strong provocation;
(4) There was substantial ground tending to excuse or justify the defendant’s criminal conduct, though failing to establish a defense.
(5) The victim of the defendant’s criminal conduct induced or facilitated its commission;
(6) The defendant has compensated or will compensate the victim of his criminal conduct for the damage or injury that he sustained;
(7) The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the instant crime;
(8) The defendant’s criminal conduct was the result of circumstances unlikely to occur;
(9) The character and attitudes of the defendant indicate that he is unlikely to commit another crime;
(10) The defendant is particularly likely to respond affirmatively to probationary treatment; and
(11) The imprisonment of defendant would entail excessive hardship to himself or his dependants.”

As to (1) we need not labor the point. He did in fact cause serious harm. As to (2) he must have contemplated that his conduct would cause serious harm when he stuck this knife in the faces of these women and proceeded to cut up the victim while trying to get her purse.

In this case defendant was specifically asked whether he had anything to say before sentencing and he said “No.”. Furthermore, he was represented by able counsel and almost a month intervened between the trial on the charge and the sentencing hearing. Defendant offered no suggestion that he did not contemplate the results of his actions, that he acted under (3)’s strong provocation, that there were (4)’s substantial grounds tending to excuse or justify his conduct — and so on through (5), (6), (8), and (11). As to (7) the record shows that the trial court commented on his history of lawlessness. As to (9) the court correctly noted that a person already convicted of four crimes in six years can hardly be said to possess a character and attitude indicating that he is unlikely to commit another crime. As to (10) it is fair to infer that a person already given a third chance to respond affirmatively to probationary treatment will not, three years since the third offense, so respond.

The minimum penalty under R.S. 14:64 B is five years. Under R.S. 15:529.1 A(l) the minimum penalty for defendant was one-third of R.S. 14:64 B’s ninety-nine years or 38 years. It can hardly be said that the trial judge abused his discretion in sentencing him to something more than the minimum considering defendant’s other three convictions and lack of anything in the record as to any mitigating circumstances whatever.

The sufficiency of the “articulation” of the court’s reasons for the sentence in compliance with Art. 894.1 C must be determined on a case by case basis. In this case, where a thirty-one year old defendant can’t be sentenced to less than 33 years and the facts warrant something substantially more, we conclude that the statement of the trial court in this particular case was sufficient to meet the requirements of Art. 894.1.

In support of his argument that he was given the maximum sentence solely because he chose not to plead guilty defendant has produced in this court a list of cases handled by this trial judge which purport to show his tendency to mete out the maximum sentences, especially in armed robbery prosecutions, where there were pleas of not guilty, as opposed to minimum sentences for guilty pleas. This same argument was made in State v. Oubichon, supra, and the list may be the same. Aside from the problem alluded to in Oubichon that these data are not properly before us, they would not be helpful in the absence of some showing of similarity to this case as to circumstances, particularly the presence of not one, but three, previous convictions on defendant’s record. The ages of the other defendants might also be pertinent. A forty year old defendant sentenced to seven years more than the minimum of 33 years would be no better off as a practical matter than our thirty-one year old defendant if sentenced to only twenty years more than the minimum of 33 years. If defendant had pled guilty, with his record it is unlikely that he would have been given anything near the minimum especially considering the aggravating circumstances of this case where he seriously injured the victim. Defendant’s argument may be good in another case, but since this sentence is appropriate as to this crime arid this defendant, it becomes irrelevant whether the sentence was imposed following a trial or a guilty plea.

Finally, the argument that defendant’s sentence is constitutionally excessive has no merit. It seems to be more appropriately addressed to the entire legislative scheme for dealing with habitual offenders. There is no showing that 33 years, the minimum, would constitute cruel and inhuman punishment, nor is there a showing that something appreciably more than the minimum would be no matter how much mitigation we might dream up for this defendant.

After giving due consideration and weight to any aggravating and mitigating factors, and the sentencing discretion afforded the trial judge, we do not find the sentence, although maximum, to be excessive.

Accordingly, the conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: BARRY, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Nathan VENTRY.
    No. KA-0594.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.
    Harry F. Connick, Dist. Atty. of Orleans Parish, William R. Campbell, Jr., Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Roger M. Evans, New Orleans, for defendant-appellant.
    Before BARRY, KLEES and WILLIAMS, JJ.
   BARRY, Judge.

Defendant Nathan Ventry pleaded guilty to possession of phencyclidine and possession with intent to distribute marijuana (LSA-R.S. 40:966), but reserved the right to appeal the denial of his motion to suppress the evidence.

Ventry contends the search warrant and application specified 1918 St. Andrew Street whereas the contraband was seized in 1920 St. Andrew and argues this violates the particularity requirements of United States Constitutional Amendment IV, La. Const. Art. 1, § 5 and C.Cr.P. Art. 162.

A confidential informant told two police officers that Ventry was selling narcotics from inside 1918 St. Andrew in New Orleans. The informant stated he observed several persons approach the defendant on the sidewalk and each time the defendant went inside 1918 and into the “Manager’s Office” and returned with a clear plastic bag containing marijuana. Based on this information the officers established a surveillance of the pool hall and observed five individuals approach the defendant in front of 1918 St. Andrew. On each occasion the defendant went inside the pool hall with the person and both would come out several minutes later. A black female arrived and spoke with Ventry several minutes before proceeding inside the pool hall. A few minutes later they came out and the woman was carrying a paper bag. The officers attempted to follow the woman but lost her car in traffic; however, she was located later that evening in a bar on Barrone and Clio Streets. The woman fled upon seeing the officers, but was caught going out the back door. Officer Goode observed the woman drop the paper bag which was found to contain 76 marijuana cigarettes. In response to the officers’ questioning, the woman stated she obtained the marijuana at a pool hall/sweet shop on St. Andrew Street. She then directed the police to 1918 St. Andrew and described Ventry as the person who sold the marijuana to her.

Officers Marino and Goode returned to the pool hall, approached the defendant who was standing outside, and told him an informant identified him as a narcotics dealer and that a woman who had purchased narcotics from him was arrested. The officers patted down Ventry in a search for weapons and asked his consent to search his automobile and the pool hall. A search of Ventry, his automobile and the pool hall did not reveal any narcotics; however, when the officers attempted to open the lock on the door labeled “Manager’s Office,” the defendant objected and asked to speak with his attorney. The search was ceased and the officers returned to the police station and completed a search warrant application. The application described the building to be searched as: “concrete and wood, red in color,” “commercial,” “one store used as a pool hall and sweet shop,” “1918 St. Andrew” and “no apartment.” The resultant search of the room(s) beyond the door marked “Manager’s Office” revealed a large amount of marijuana, an envelope of phencyclidine, a scale, rolling papers, a cigarette roller, two guns, a stolen bicycle and $1,040 in cash.

Defendant argues 1918 St. Andrew and the adjacent property wherein the “Manager’s Office” is located are separate structures and the search should have been restricted to 1918 which housed the pool hall and sweet shop. An architectural expert described the building next to 1918 as a “very old run down apartment” and stated the two structures were built from different materials, had different facades, and roof lines.

The architect rendered a scale drawing which shows a common wall with double doors connecting the two structures. The witnesses stated that in the pool hall (1918) in the proximity of the double doors was a sign reading “Manager’s Office” where the drugs were found. On cross-examination the architect conceded he assumed the address of the adjacent apartment to be 1920 St. Andrew even though there was no municipal number on that building.

Ventry testified he leased the property separately for the last three years, but offered no proof to support that claim. He alleged the buildings are separate structures; one a business and the other a two bedroom residence. Ventry conceded there was no municipal number on the “apartment side” because it was removed a year earlier to paint. On cross-examination Ventry admitted his “formal” address was 1918 St. Andrew.

A search warrant must describe with particularity the place to be searched. United States Constitutional Amendment IV; La. Const. Art. 1, § 5; La.C.Cr.P. Art. 162. Our Supreme Court stated in State v. Cobbs, 350 So.2d 168, 171 (La.1977):

The object of the description in a search warrant is to prevent the search of the wrong premises. If the place to be searched is described in sufficient detail to enable the officers to locate it with reasonable certainty and with the reasonable probability that the police will not search the wrong premises, the description is sufficient, [citations omitted]

A discrepancy, such as a non-existent address, will not invalidate the search warrant. State v. Korman, 379 So.2d 1061 (La.1980); State v. Petta, 354 So.2d 563 (La.1978); State v. Alexander, 337 So.2d 1111 (La.1976). In each of those cases the warrants were upheld because the court felt there was little possibility the wrong premises would be searched.

However, warrants were defective in State v. Lee, 247 La. 553, 172 So.2d 678 (1965) and State v. Manzella, 392 So.2d 403 (La.1980) where incorrect addresses were specified. In Lee the executing officer realized the warrant incorrectly named 2127 Bienville instead of 2123 Bienville and telephoned the issuing judge who approved a change on the warrant. The court held the warrant invalid because it was amended without the requisite amendment to the affidavit which could only be done by a judge. The court stated:

Under no circumstances could it be held that an officer with such a warrant could take it upon himself to enter and search premises located at another number. Lee, supra, 172 So.2d at 682.

In Manzella the warrant specified 6176 Pontchartrain Blvd., the police rang the doorbell at 6176, a woman answered and told the officers Manzella, her brother, lived at 6178 in the other half of the house. The police searched 6178 and the court held the warrant invalid because it did not “particularly describe” the right premises.

In the instant case, like Lee and Manzella and unlike Korman, Petta and Alexander, the warrant contained a specific address. In State v. Smith, 397 So.2d 1326 (La.1981) the application and warrant specified 1821 Carondelet Street but the officers searched 1819 Carondelet because they knew it was the defendant’s residence. The executing officers had observed suspicious activity at 1819, the affidavit identified the correct apartment door with a picture window to the right and column with 1821 to the left. The court held the warrant was sufficient because the affidavit served to “particularize” an otherwise misleading warrant.

The facts of this case are much stronger than Smith. The officers testified (and it is uncontradicted) that 1918 was the only address on the building. During their surveillance all suspected illegal activity was observed at 1918. Information from their confidential informant revealed the marijuana was kept inside 1918 behind doors marked “Manager’s Office.” The application clearly establishes (and was confirmed by the officers’ and defendant’s testimony at the hearing) that the search warrant became necessary only after Ventry allowed the police to search the pool hall, but refused entry into the “Manager’s Office.” This was obviously the only area where the officers sought authorization to search. The “Manager’s Office” was readily accessible from the pool hall through the double doors and the officers had no reason to suspect the “Manager’s Office” might be part of a separate building. Under these circumstances, we feel the officers had every reason to believe they were in 1918 when they entered the “Manager’s Office.” See State v. Hymer, 400 So.2d 637 (La.1981); State v. Roach, 322 So.2d 222 (La.1975). Unlike Lee and Manzella the officers did not knowingly search a municipal address not specifically designated in the warrant. Like Smith, the affiants were also the executing officers and there was no reason to believe an address not intended to be searched would be searched.

The purpose of the exclusionary rule is to deter police misconduct. Here, there was no error nor was there arbitrary action or bad faith on the part of the officers. The police went where they intended to go. There is nothing in the record to support the defendant’s contention that 1920 was illegally searched nor is there any evidence to even establish the existence of 1920 St. Andrew as a municipal address, if in fact it ever was. The area searched was not due to “lucky happenstance” as in Manzella, supra, but was clearly the intended area for which the search warrant was secured. Defendant’s motion to suppress the evidence is without factual or legal substance and was properly denied.

Defendant further argues that the application for the search warrant contained false information, i.e., that he consented to the search of his person, automobile and pool hall. Both officers unequivocally testified that Ventry granted permission to search. Defense witness Charlene Gilmore and Ventry testified that he “mildly” objected. The trial court said:

There is no doubt that absent the defendant’s permission, the officers had no right to search Ventry’s person, car and pool hall. Permission was clearly obtained by the officers and that search revealed nothing at all, but a reluctance on the part of Ventry to permit entry into the “manager’s office.” It was at that point that the officers used the information they had been possessed of all the while and applied for a search warrant. There is neither a “fruit of the poison tree” situation here, nor a misstatement by the officers.

Officers Marino and Goode developed the case, pursued the evidence by appropriate warrant, and conducted their search in a reasonable and prudent manner. In fact, there conduct followed textbook procedures. Consent to search is a question of fact involving credibility of the witnesses and great weight is given to the trial judge’s determination. State v. Robinson, 386 So.2d 1374 (La.1980). We find no abuse of discretion.

The defendant’s conviction and sentence are affirmed.

AFFIRMED.


text:
    Mrs. Evelyn Jackson, wife of Anteal JACKSON, et al. v. WINN DIXIE STORES, INC.
    No. CA-0746.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Meyer Sabludowsky, New Orleans, for plaintiff-appellant.
    Dan R. Dorsey, Terry M. Boudreaux, River Ridge, for defendant-appellee.
    Before BARRY, KLEES and WILLIAMS, JJ.
   BARRY, Judge.

Plaintiffs’ claim for damages based upon eating deleterious food purchased from the defendant grocery was dismissed because “.. . the short ribs purchased by the plaintiff were not contaminated nor the cause of the food poisoning organisms which unquestionably caused the plaintiffs’ minor discomfort .... [T]he resulting illness was caused by the negligence of Evelyn Jackson in the refrigeration and/or preparation of the beef short ribs.”

At noon on Saturday, August 15, 1981 plaintiff Mrs. Evelyn Jackson purchased six packages of beef short ribs from Winn Dixie. She went directly home and placed the ribs in a freezer until 5:30 a.m. the next morning when the meat was defrosted until 9:30 a.m. Mrs. Jackson testified she cooked the ribs for 2½ to 3 hours and at approximately 1:00 p.m. the plaintiffs JoAnn Jackson, Diane Williams, Lorraine Jackson, Evelyn Jackson, and the minor Wayne Jackson ate the ribs for lunch.

There is a dispute as to whether the ribs were refrigerated after lunch or remained on the stove until that evening at 6:00 p.m. when the meat was heated and served for dinner to the same family members and also to Walter Jackson. Mrs. Jackson said after lunch she removed the ribs from the pot and refrigerated them in a clean container until supper. In her deposition, Diane Williams said the ribs were left on the stove all afternoon and that she had eaten the ribs at lunch and dinner. At trial, Williams contradicted both statements and denied she ate dinner or that she had any knowledge whether the ribs were left unrefrigerated after lunch. That evening between 9:00 and 11:00 p.m. all of the plaintiffs became ill with cramps, nausea, vomiting, and diarrhea. Everyone went to Charity Hospital emergency room for treatment except Walter who saw his personal physician, Dr. Tontiplaphol.

Plaintiffs contend the trial judge committed manifest error in basing his decision on the expert testimony of Dr. Brobson Lutz. They assert Dr. Lutz’s opinion was “highly speculative ... a matter of conjecture” and premised on the erroneous assumption that the food was left unrefrigerated on the stove all afternoon. They argue it was proven the ribs were the only food consumed and since all six plaintiffs became ill at the same time, the court should infer the ribs were the direct and proximate cause of their injuries, citing McCauley v. Manda Bros. Provisions Co., 202 So.2d 492 (La.App. 1st Cir.1967) affirmed 252 La. 528, 211 So.2d 637 (1968). Defendant does not question that plaintiffs suffered from food poisoning. The issue is the cause of the food contamination.

Plaintiffs’ burden is to establish by a preponderance of evidence that the meat was in a deleterious condition when purchased and caused their illnesses. English v. Louisiana Creamery, Inc., 181 So.2d 800 (La.App. 1st Cir.1965). A plaintiff need not negate every conceivable cause nor produce a scientific analysis of the alleged contaminated food. Proof must only show that it is more likely than not that the alleged deleterious food caused the illness. McCauley, supra; Tate v. Winn Dixie of Louisiana, Inc., 339 So.2d 1329 (La.App. 1st Cir.1976).

The most persuasive evidence, which was obviously relied on by the trial judge, was the unrebutted testimony of Dr. Brob-son Lutz, an eminently qualified expert in internal medicine with expertise in public health and infectious diseases. Dr. Lutz said freezing was a very effective way to sterilize meat and keeping the meat in the freezer would destroy any bacteria. He also testified that boiling or cooking any food for the amount of time Mrs. Jackson reported would kill existent bacteria and toxins. Therefore, according to Dr. Lutz and based on Mrs. Jackson’s testimony, her handling of the meat up to lunch time would have effectively eliminated bacteria that might have been present when it was purchased from Winn Dixie.

In addition, it was Dr. Lutz’s opinion, based on the time to onset of symptoms (four to six hours) and the symptoms themselves (cramps, nausea, vomiting and diarrhea), the most likely cause of the food poisoning was clos perfringens, or ptomaine poisoning. He stated this is common where the meat is cooked and browned in its own juices (as here) because the gravy provides an excellent medium for the organism to grow. Plaintiff asserts this conclusion is based on the inaccurate assumption that the ribs were left out all afternoon.

The trial judge made the factual determination that the ribs remained unrefrigerated from lunch until dinner. When Dr. Lutz was asked whether one person (Diane) could eat the ribs at 1:00 p.m. and another (Walter) at 7:00 p.m. and all develop the same problems at the same time, he replied: “No .... [T]hat fits no known food poisoning syndrome that I know of.” Dr. Lutz admitted he could not positively identify the organism without a sample but “where you have several people in one family who became sick several hours after eating a piece of meat that was prepared on the top of the stove and probably remained on top of the stove, you’re talking about clos perfrin-gens.” He stated the cause was “contamination of the food after cooking” and not due to any quality existing in the meat when sold “because the bacteria that makes the toxin would be destroyed by freezing, they would be destroyed by three hours of cooking.” Dr. Lutz unequivocally said “I know of no instance of this — this is based on my training and on my reading and on my personal practice and my work with the City Health Department at New Orleans. I know of no instance in which a gastrointestinal disease of this short duration following an ingestion of a meat problem was caused by anything but improper handling and the type of cooking.” Regarding the weight Dr. Lutz gave to the assumption that the ribs were not refrigerated after lunch, he stated even if refrigerated in a large enough container, the inside temperature would be ideal for the growth of bacteria for approximately 24 hours. Thus, refrigeration after lunch would not be conclusive in plaintiffs’ favor.

• We note Mrs. Jackson testified when she reheated the ribs for dinner she “warmed it up” for about 15 minutes and did not bring it to a boil. Whether the ribs were unrefrigerated all afternoon was immaterial to Dr. Lutz’s opinion that the organism was close perfringens based on the symptoms, the number of people involved, the food involved, the overnight freezing and the three hours of cooking. He said if the poisoning was due to clos perfringens then the organism had to enter between cooking and cooling. “Now, that implies contamination to me because these clos perfringens don’t fall out of the air. They have to be put in there. And it’s usually contamination from improper hand washing or from using utensils that have been used with a salad or poured into a receiving bowl that was not cleaned .... [I]t’s the result of food contamination after cooking.”

On cross-examination Dr. Lutz was asked whether an examining physician would be in a better position to evaluate this situation. Dr. Lutz responded that while this was true for much of medicine, cases of food poisoning are “historically a retrospective type of examination and the examination of the individual person actually adds very little to the case in tracking down food poisoning.” He was convinced the plaintiffs’ suffering was caused by improper food handling after it was cooked and not by the condition of the meat at the time of purchase.

The record clearly shows the trial judge was not impressed with the testimony or the demeanor of the plaintiffs and the court believed the unrebutted testimony of Dr. Lutz that the source of contamination was improper handling of the meat after cooking. We find no error in that conclusion.

The judgment of the district court is affirmed at appellants’ costs.

AFFIRMED.

      . Dr. Lutz stated he was chief of communicable diseases (apparently for the City of New Orleans). He stated any outbreak of food borne infectious diseases is reported to his office.


author: KLEES, Judge.

text:
    Abraha CHA-JUA v. DEPARTMENT OF FIRE.
    No. CA-0637.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Steve V. Barbre, New Orleans, for plaintiff-appellee.
    Bernette J. Johnson, Asst. City Atty., New Orleans, for defendant-appellant.
    Before KLEES, LOBRANO and WILLIAMS, JJ.
   KLEES, Judge.

Abraha Cha-Jua, an employee for the City Department of Property Management for more than one year, applied for employment with the New Orleans Fire Department. He successfully passed all tests and was ultimately ranked first on the Fire Recruit roll. After plaintiff was passed over three times, Chief William McCrossen, under the City Civil Service Rule, requested Cha-Jua’s name be removed from the register. Cha-Jua was informed that his prior attendance record with the Department of Property Management, his arrest record and the incomplete explanation of prior arrests on his application were factors in the decision not to hire him. Cha-Jua instituted proceedings before the Civil Service Commission alleging that the use of his arrest record to exclude him from employment had a discriminatory impact on black male applicants since black males are arrested disproportionately to their numbers in the population. The Commission agreed and ordered plaintiff employed immediately. We disagree with their ruling and reverse.

On appeal the Fire Department contends Cha-Jua did not carry the burden of proof required to show that discrimination based on race was the reason he was not selected as a recruit. The Fire Department asserts McCrossen’s decision was not based solely on the arrest record but the combination of that plus the attendance record and Cha-Jua’s “misleading” response regarding his prior arrests. Cha-Jua argues that the use of an arrest record as an employment standard, although neutral on its face, has a discriminatory impact on blacks and was not shown by the appointing authority to relate to job performance. For support of this proposition appellee relies (as did the Commission) on cases arising under Title VII of the Civil Rights Act of 1964. We seriously question the applicability of Title VII cases to an action before the Civil Service Commission based upon Louisiana law. An action under Title VII is a remedy entirely distinct from a civil service appeal based upon state law and is not applicable herein. Mixon v. New Orleans Police Department, 430 So.2d 210 (La.App. 4th Cir.1983); Bernard v. L.H.H.R.A.-Southwest Charity Hospital of Lafayette, 358 So.2d 653 (La.App. 1st Cir.1978); Brown v. L.H.H.R.A., 346 So.2d 758 (La.App. 1st Cir.1977).

Civil Service Commission rulings are reviewable on questions of law and fact. 1974 La. Const. Art. 10 § 12. The standard of review of actions by the Civil Service Commission is whether the conclusion reached is arbitrary or capricious or manifestly wrong.

At the hearing Cha-Jua testified that he was unsure of the exact number of times he had been arrested. He was certain however that he had never been tried or convicted of anything other than minor traffic violations. He also stated prior to legally changing his name to Abraha Chink Cha-Jua his name had been Louis Johnson. With so common a name, he said he was frequently arrested when the police were actually looking for someone else. The compilation of arrests relied on by McCros-sen and supplied by the Police Department reveals eight arrests involving fourteen separate charges. We note that all of the arrests occurred after the name change from Johnson to Cha-Jua. Cha-Jua testified that the name change procedure was brought in 1972. The nature of the offenses is unclear but at least five appear to be traffic violations. The remaining charges are for obstructing the street, “misuse of registration,” disturbing the peace, theft, language toward officer and resisting arrest. Cha-Jua testified that many of his arrests were during civil rights demonstrations and were harrassment by the police. He stated during one nine day period he was arrested seven times. In light of this testimony the Commission found that Cha-Jua’s response on his application was not misleading. From our reading of the record, we cannot agree.

While we agree with the statement of the commission that, “Arrests are no more than allegations of wrongdoing. They do not constitute proof of wrongdoing.”, it is obvious to this Court that Chief McCrossen used these reports merely in a probative manner in assessing competing candidates for employment.

He explained this when asked:

“Q. But, insofar as their actual duties, an arrest would not necessarily interfere with an individual’s performing the duties of a fireman, isn’t that correct?
A. Well, I would say that judging and trying to respond to your question, I would say that those who avoid scrimmages with the law, multiple scrimmages with the law, would be a better candidate than those who have scrimmages with the law.
Q. Do you know the difference between an arrest and a conviction?
A. Certainly. A man is arrested. He is not convicted. He is charged with.
Q. Do you know the difference between a charge and a conviction?
A. Sure. A man is arrested. Charges are preferred against him. He is then given due process. He goes before a judge or a jury and he’s found guilty or not guilty. Or, in some cases, he pays a fine, which in my judgment is an admission of guilty. Why pay a fine if you’re not guilty.
Q. If an individual has been arrested a number of times, that this individual has been arrested and hasn’t been convicted or anything, wouldn’t that stand for something?
A. Well, yes, it stands for something. But, you know you have to compare things. As I mentioned here the other day. There’s only one way that you have to measure that. There’s only one way that I can compare darkness is if I know light. So, if I have a man with no charges, no scrimmages with the police and I have another man that has fourteen (14) scrimmages with the police, that stands for something. That tells me that he has a tough time getting along in this society for whatever reasons it may be, whatever the violations may be.
Q. Now, isn’t it a fact that the basic, the ultimate, the but for criteria in Mr. Chink Cha-Jua not obtaining this employment is his arrest record?
A. No, it’s not. It is compounded by other things. ... ”

Further when asked about the candidate who ultimately was hired Chief McCrossen was very candid in his answers:

“Q. I think you testified that Mr. Cha-Jua’s application was rejected. Do you know who was appointed from the register? What was the race of the individual that was appointed from the register?
A. Well, yes, I do know. After it really came to my attention, after the charges were filed about discrimination, it came to my attention that the individual that we hired was a black.
Q. Let me ask you this. At the time that you made the decision to reject Mr. Cha-Jua’s application, did you have any idea what his race was?
A. Not the slightest. ”

In this case, the commission found “That black citizens are often subjected to more aggressive police contact and that young black males are more likely to compile arrest records is an appropriate matter for judicial notice.”

We are in agreement with the argument presented by the Fire Department that the burden was upon the Cha-Jua. The burden was upon Cha-Jua from the start to prove he had been discriminated against by reason of his race. Yet, he was able to avoid carrying his burden of proof because the Commission took judicial notice of a crucial fact which circumvented all need to prove that his failure to be hired was in fact discriminatory.

The doctrine of judicial notice was not meant to preclude the burden of proof that must of necessity be the hurdle or obstacle in a claimant’s path.

Judicial notice does not prove that a particular defendant was discriminated against. The spirit and nature of the American judicial system requires that before an employer can be found guilty of discriminatory hiring practices, the party alleging discrimination must be required to prove such acts. Sanders v. Department of Health and Human Resources, 394 So.2d 629 (La.App. 1st Cir.1980), Writ Denied, La., 399 So.2d 602 (1981).

In the case at bar, the Commission acknowledged that the City Fire Department’s hiring policy was race neutral, and only by accepting an unsubstantiated fact was the Commission able to conclude that this case involved an impermissible discrimination to Cha-Jua himself.

La. Const. Art. 10 § 8(B) provides:

(B) Discrimination. No classified employee shall be discriminated against because of his political or religious beliefs, sex, or race. A classified employee so discriminated against shall have the right of appeal to the appropriate commission. The burden of proof on appeal, as to the facts, shall be on the employee, (emphasis ours)

Here Cha-Jua clearly did not carry this burden and such indirectness of result based on unsubstantiated conclusions should not be the basis for a successful charge of racial discrimination.

Accordingly, for the reasons expressed above, we reverse the judgment of the Civil Service Commission.

REVERSED.


author: BYRNES, Judge.

text:
    LOUISIANA JOINT UNDERWRITERS OF AUDUBON INSURANCE COMPANY v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House Inc. LOUISIANA JOINT UNDERWRITERS OF AUDUBON INSURANCE COMPANY v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House, Inc. Ernestine ROUX v. Willie GANT and Pearl Jackson Gant. TRAVELERS INSURANCE CO., Robert A. Vaucresson and Maurice A. Fortin v. Willie GANT d/b/a Peck’s Steak House. Jake P. SCHIELE, Jr. v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House Inc. ESTATE OF Percy McGEE, Sr., and Helen McGee, Individually v. Willie GANT, d/b/a Peck’s Steak House, and Peck’s Steak House, Inc.
    Nos. CA 0520-CA 0525.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Writ Denied Dec. 9, 1983.

      John W. Waters, Jr., New Orleans, for attorney-appellee.
    James F. Ryan, New Orleans, for plaintiff-appellee.
    David M. Cambre, Jesse S. Guillot, New Orleans, for defendant-appellant.
    Before GULOTTA, WARD and BYRNES, JJ.
   BYRNES, Judge.

This appeal arises out of a suit for damages caused by a fire at Peck’s Steak House in New Orleans.

The plaintiffs are Helen McGee individually and as administratrix of the Estate of Percy McGee Sr., Ernestine Roux, Jake P. Schiele Jr., Louisiana Joint Underwriters of Audubon Insurance Company (“Audubon”), and Traveler’s Insurance Insurance Co. (“Traveler’s”), Robert A. Vaucresson and Maurice A. Fortin. The defendant is Willie Gant d/b/a Peck’s Steak House.

Each of these plaintiffs filed suit separately against Gant in Civil District Court for Orleans Parish. The actions were consolidated and transferred to the Commissioner’s office. After a hearing, the Commissioner, acting as Judge ad hoc, filed a report recommending that judgment be entered:

1.) Awarding Audubon $31,630.62, Travelers $4,468.00, and Vaucresson and Fortin $100.00;
2.) Dismissing the claims of McGee, Roux and Schiele.

The Civil District Court adopted this recommended judgment verbatim. Roux, McGee, and Schiele have appealed the dismissal of their claims and Gant appeals liability. We affirm.

THE FACTS

On March 23, 1977 a fire, alleged to have started in Peck’s Steak House at 1529 Basin Street in New Orleans, damaged three neighboring buildings. Peck is owned by defendant Willie Gant.

One of the damaged buildings is owned by Helen McGee and her late husband. This building housed the Busy Bee Motel, a barber shop, and the Dragon’s Garden restaurant and lounge. Audubon, the insurer of the building, paid Mrs. McGee $17,000.00 for the fire damage and became subrogated to her rights against Gant. Mrs. McGee seeks additional damages not covered by insurance.

The next building is owned by Ernestine Roux and was also insured by Audubon. This building contained a rooming house and the unfinished J.P. Restaurant and Bar. Mrs. Roux collected $14,630.62 from Audubon, which became subrogated to her rights as well. Mrs. Roux also seeks additional damages not covered by her insurance. Mr. Jake P. Schiele, Jr., who leases space in this building and is the proprietor of the J.P. Restaurant seeks $12,000.00 in damages for which he was not insured.

The third building houses the Vieux Carre Lounge and it is owned by Robert Vaucresson and Maurice A. Fortin. The lounge was insured by Traveler’s which paid the owners $4,868.60 and became sub-rogated to their rights.

THE FIRE’S ORIGIN

The trial court found that the fire began in a locked storeroom in the rear of Peck’s. On appeal Gant contends that the evidence presented at trial was not sufficient to establish that the fire originated in his building. We do not agree.

Several firefighters who were on the scene testified that when they arrived, the fire appeared to be limited to Peck’s. Moreover, plaintiff’s expert, who examined the scene the following day, testified that a “V” pattern of burning was evident in Gant’s building, indicating that the fire began there and spread up and out to the neighboring buildings. The defendant produced an expert who testified that a “V” pattern was present in the McGee building. However, this witness did not view the scene until four months after the fire when renovation of Gant’s building had already begun.

The trial judge concluded that plaintiffs theory of the origin and spread of the fire was correct. Factual findings of the trial court will not be disturbed on appeal unless such findings are not reasonably supported by the evidence. Arceneaux v. Dominique, 365 So.2d 1330 (La.1979); see also Barnes v. Wilhite, 434 So.2d 638 (La.App. 3rd Cir.1983). Furthermore, where there is conflicting testimony, a credibility judgment made by the trier of fact will not be disturbed unless it is found to be manifestly erroneous. Bren Lynn Corp v. Vallere, 434 So.2d 600 (La.App. 3rd Cir.1983). The ruling of the court in the instant case regarding the point of origin of the fire is supported by the evidence and is not manifestly erroneous; accordingly, we affirm.

RES IPSA LOQUITUR

Gant contends that the doctrine of Res Ipsa Loquitur should not be applied in this case because the cause of the fire was undetermined and it could have been caused by spontaneous combustion. We disagree.

It is generally accepted that Res Ipsa Loquitur is only applied when:

(1)The event which caused the damage is one which ordinarily does not occur in the absence of someone’s negligence.
(2) The damage is caused by an agency or instrumentality within the exclusive control of the defendant or for which the defendant is legally responsible;
(3) The plaintiff has not caused or contributed to his injury.

W. Prosser, Hornbook on Torts, Section 39 (4th ed. 1971).

Louisiana jurisprudence has followed this general rule.

Res Ipsa Loquitur ... sometimes comes into play as a rule of circumstantial evidence, whereby negligence is inferred on the part of a defendant because the facts indicate this to be the more probable cause of the injury in the absence of other as plausible explanations by witnesses found credible.

Boudreaux v. American Insurance Co., 262 La. 721, 264 So.2d 621, 636 (1972); see also Benjamin v. United States Steel Corp., 396 So.2d 332, 337 (La.App. 4th Cir.1981).

While a fire does not usually occur in the absence of someone’s negligence its occurrence alone does not necessarily imply negligence on the part of the defendant. Hanover Insurance Co., v. Jacobson Young, Inc., 294 So.2d 564 (La.App. 4th Cir.1974). However, the record in the instant case shows that the back storeroom of Peck’s contained no outside doors or windows. The room was always locked and the only keys belonged to Gant and his wife. Mrs. Gant did not testify. On the day of the fire the only people in the restaurant were Gant, his wife, and two employees. Thus it appears that the storeroom was in Gant’s exclusive control.

Moreover, flammable substances were stored in the room. Plaintiff’s expert testified that the room was so badly burned that it was impossible to determine which, if any, of these substances caused the fire. However, he was able to conclude with certainty that it did originate in Peck’s storeroom.

Gant argues that the possibility of spontaneous combustion as an origin of the fire should preclude application of Res Ipsa Loquitur. We do not agree. It has been held that spontaneous combustion can imply negligence where the defendant or his agents have complete control over the area where the fire began. See Fireman’s Fund Insurance Co. v. U.S.F. & G., 276 So.2d 754 (La.App. 3rd Cir.1973).

When viewed as a whole the circumstantial evidence in this case, points to Gant’s negligence as the most plausible explanation for the fire. A fire normally does not occur without someones negligence; the storeroom was under Gant’s exclusive control; there was no evidence in the record to suggest that any of the plaintiffs contributed to the starting of the fire. We therefore conclude that the trial court properly applied Res Ipsa Loquitur to infer negligence in this case.

DAMAGES OF McGEE, ROUX, AND SCHIELE

Mrs. Helen McGee and the Estate of Percy McGee, Sr., seek damages of $62,500.00 for loss of income and damage to their building beyond the $17,000.00 received from Audubon. We find that neither loss of income nor damages were adequately proven at trial.

McGee claims she lost income from rental units on the second floor of her building as well as from a barber shop and restaurant on the first floor. She testified as to rental rates and related expenses. However, when the court gave her the opportunity to produce records to support her claims, she failed to do so. Claims for lost profits must be proven with a reasonable degree of certainty. Meshel v. INA, 416 So.2d 1383 (La.App. 3rd Cir.1982). A claim based solely on the testimony of the injured party and unsubstantiated by other evidence does not constitute a reasonable certainty. Having failed to meet her burden of proof, the trial court properly denied any award for lost income not covered by insurance.

Mrs. McGee further claims $40,-000.00 in damages for repairs to her building not covered by insurance. To support her claim, she produced a myriad of checks and receipts which established that materials were purchased and work was done. However, it is apparent from the record that much of the work was not related to damage caused by the fire. Additionally, many of the contracts included work which was paid for by Audubon. The invoices were not itemized to reflect non-fire related work or amounts already paid by insurance. Mrs. McGee failed to produce any witnesses to establish what portion of the work was not fire related or not covered by insurance. In these circumstances we conclude that she failed to prove damages beyond the $17,-000.00 received from her insurer.

Mrs. Roux seeks $10,575.00 for loss of income, furniture, and equipment beyond the $14,630.62 she received from Audubon. Her proof of loss beyond that amount consisted of the same type of unsubstantiated evidence presented by Mrs. McGee. Moreover, her claims for lost income were unsupported by records which Mrs. Roux stated she had but failed to produce in court. The trial court correctly denied recovery of any amount beyond that paid by her insurer.

Finally, Mr. Schiele claims $12,-000.00 in damages consisting of $8,000.00 for loss of business and $4,000.00 for physical damage to his restaurant. Mr. Schiele produced no records and did not accurately testify as to the income he earned from his establishment prior to the fire. The record reveals that his business had operated at a loss after it opened in June, 1977. Hence, any award for lost income as a result of the fire would be purely conjectural.

As to the physical damage caused by the fire Mr. Schiele submitted checks which he alleged were partially used to repair the damage. However, his restaurant was not yet finished at the time of the fire and he failed to prove what amounts were used to repair fire damage and what amounts went towards completion of the work which was in progress when the fire occurred. Accordingly, we affirm the trial court’s decision to deny any recovery by Mr. Schiele for damages.

CONCLUSION

The judgment of the trial court is affirmed. All costs of this appeal are of be divided equally between Willie Gant and the Estate of Percy McGee Sr., Helen McGee, Ernestine Roux, and Jake P. Schiele Jr.

AFFIRMED.


author: BYRNES, Judge. BARRY, Judge,

text:
    AGUILLARD’S ENTERPRISES INC. v. David SMITH, Mrs. Annette Smith, Wife of/and Dr. Arnold Smason and Sara Baskind, Wife of/and Irvin S. Smith.
    No. CA 0684.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    Rehearing Denied Nov. 22, 1983.
    Writ Denied Jan. 27, 1984.

      Jane M. Gisevius, Frederick J. Gisevius, Jr., Dennis L. Rousseau, New Orleans, for plaintiff-appellee.
    Steeg & O’Connor, Moise S. Steeg, Jr., Carl J. Schumacher, Robert M. Steeg, New Orleans, for defendants-appellants.
    Before GARRISON, BARRY and BYRNES, JJ.
   BYRNES, Judge.

This is an appeal from a judgment of the Civil District Court, Parish of Orleans, finding that plaintiff-appellee Aguillard’s Enterprises Inc., had effectively exercised an option to renew its lease with defendant-appellant, David Smith et al., on certain property located on St. Charles Ave. in New Orleans. We affirm.

FACTS

On October 1, 1977 appellee, Aguillard’s Enterprises Inc., through its president Lloyd Aguillard, leased from David Smith certain premises at 2025 St. Charles Ave. The lease was for a five year term ending September 30, 1982. Included in the lease was an option to renew for an additional five years which provided that; “In the event lessee wishes to exercise his option to renew this lease he must give his written notice of such intention to lessor no later than April 1, 1982.”

These provisions were essentially the same as those in an earlier lease between the parties covering the same premises. This first lease was also for a five year term, commencing on October 1, 1967. When the term of this lease was up appel-lee, who had not at that time incorporated his business, exercised his option to renew by mailing a letter to Smith by ordinary mail on April 1,1972. It is undisputed that this letter arrived after April 1, 1972 and that the Smiths accepted this notice as a timely exercise of the option.

On March 31,1982 Aguillard, as president of Aguillard’s Enterprises Inc., sent a certified letter, postage pre-paid, return receipt requested, to David Smith expressing his intention to exercise the option under the second lease. This letter was not delivered to the Smiths until April 5, 1983. Upon receiving the letter Smith informed Aguil-lard that, because the notice was not received by April 1st, Smith did not consider the notice timely and would not renew the lease.

Thereafter Aguillard filed suit in the Civil District Court seeking a declaratory judgment upholding his exercise of the option. Following discovery, motions for summary judgment were filed by both parties and the trial court entered judgment in favor of Aguillard. It is from this judgment that the Smiths appeal.

TIMELY EXERCISE OF THE OPTION

Resolution of this case revolves around the meaning of the phrase “give notice” as used by the parties. Appellants contend that in order for Aguillard to have given a timely notice they must have received that notice by April 1, 1982. On the other hand Aguillard’s position is that by dispatching the notice before April 1st he had effectively exercised his option. After careful consideration of the previous dealings between the parties and an examination of both the lease itself and the applicable law we find that the trial judge was correct in concluding that the option was timely exercised.

The question of whether an acceptance of an offer requires communication of that acceptance to the offeror as a prerequisite to the formation of a contract is dealt with primarily in Civil Code Arts. 1797 through 1819. Those articles speak in terms of communication of acceptance and stand for the general rule that, in Louisiana, a contract is not perfected until the offeror receives notice of the offeree’s acceptance. Offer and acceptance in Louisiana Law; a Comparative Analysis, Saul Litvinoff, 28 La.L.R. 153, 163. However, this rule is subject to exceptions and may be altered by the parties pursuant to their freedom to contract.

The question then becomes, did the parties so alter the general rule that dispatch of a notice to exercise the option under the lease was sufficient? The answer to this question must first be sought in the language of the lease itself for that agreement has the effect of law between the parties and their intent is determined by the words of that contract when they are clear and explicit. C.C. Articles 1945 and 1963 Bohm v. C.I.T. Financial Services Inc., 348 So.2d 132 (La.App. 1st Cir.1977) writ denied La., 350 So.2d 673. However, where the wording of a contract is ambiguous or susceptible of two interpretations it is the duty of the courts to interpret the contract according to the precepts set forth in C.C. Arts. 1945 to 1967.

In this case we find that the phrase “give written notice” as used in the context of the lease as a whole is at least susceptible of two meanings if not ambiguous. This conclusion is based in part on the fact that the clause of the lease dealing with the lessors’ liability for damages caused by defects in the leased premises specifically provides that written notice of such defects must be received by lessor as a prerequisite to liability. However, other clauses which require written notice speak only in terms of giving notice without reference to receipt. Thus there appears to be an inherent ambiguity in the lease concerning the effective date of written notices. Certain notices are deemed effective only upon receipt while others are only required to be “given”.

To clarify this ambiguity it is appropriate to look at other contracts, past and present, between the same parties concerning the same subject. C.C. Art. 1949, Finkel v. Texas Edwards Inc., 295 So.2d 903 (La.App. 2nd Cir.1974) writ denied La., 299 So.2d 798. Plantation Pipe Line Co. v. Kaiser Aluminum and Chemical Corporation, 222 So.2d 905 (La.App. 1st Cir.1969) writ denied 254 La. 761, 226 So.2d 522. Moreover, any ambiguity in a contract is to be strictly construed against the party who prepared it. C.C. Arts. 1957 and 1958 Rayford v. Louisiana Savings Association, 380 So.2d 1232 (La.App. 3rd Cir.1980) writ denied La., 384 So.2d 793.

In applying these principles to the case at hand we note that the lease in this case was drawn up by David Smith, an attorney, and son of the owner of the leased premises. He was responsible for its wording and could have drawn the lease to require receipt of written notice by his father as a prerequisite to the exercise of the option. He did not. The lease does provide that; “Any notices, demands or citations under this lease may be served personally on lessee or by mail addressed to lessee at the leased premises.” Thus it appears that the Smiths sanctioned the use of the mails as a means of communication of notice between the parties.

When Aguillard exercised his option to renew his first lease in 1972 a written notice was mailed by him on April 1st and was received by Smith after that date. The Smiths raised no objections to receipt of this notice after the day specified in the lease and permitted the exercise of the option. This was the only occasion on which the parties had an opportunity to establish a rule for interpretation of this clause of their lease.

When a new lease was confected in 1977 the provisions pertinent to the option to renew were essentially unchanged. Aguil-lard had no reason to suspect that he could not exercise his option in the same manner in which he had done so in the past. In fact Aguillard sent his notice to renew earlier than under the previous lease and by a more reliable and well documented method (i.e. registered mail).

Moreover, as previously discussed, the Smiths had, by their wording of the lease, sanctioned the use of the mails as a means of communication between the parties. In these circumstances we feel the risk that notices so communicated would not arrive on time should be placed on them. If they wished to avoid this risk the Smiths could have protected themselves as was done in the clause relating to their liability for the defects in the premises by providing that if the notice was sent by mail it had to be received on or before a certain time. In the absence of such a provision we feel that the clause authorizing the use of the mail should be interpreted so that dispatch of a notice to exercise the option by U.S. Mail postage pre-paid, within the time provided by the lease was timely.

CONCLUSION

The terms of the lease in question were ambiguous concerning the effective date of written notices. This ambiguity was created by the lessors failure to clearly specify that he desired receipt of such notices before a certain time. The lessee, relying on his past dealings with lessor and the similarity between his earlier lease and the lease in question, dispatched written notice of his intention to exercise an option to renew within the time period allowed by the lease. Under the circumstances presented by this case we hold that such dispatch was a timely exercise of the option notwithstanding the general rule that such acceptance must be communicated to be effective.

The judgment of the trial court is affirmed. All costs of this appeal to be borne by appellant.

AFFIRMED.

BARRY, J., concurs with reasons.

BARRY, Judge,

concurring.

“Give notice” only refers to the required action of one party — here it applies to the lessee.

Hence, a person (the lessee) “notifies” or “gives” a notice to another by taking such steps as may be reasonably required to inform the other (the lessor) in ordinary course whether or not such other actually comes to know of it.

A person “receives” notice when it comes to his attention or is delivered as required.

Aguillard gave timely notice when he mailed his option one day prior to the deadline. This was sufficient to exercise the option.


text:
    Nona Lee Barr, Wife of/and Luther L. BARR v. COOL VUE ALUMINUM, INC.
    No. CA 0700.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Trudy Oppenheim, New Orleans, for defendant-appellant.
    John A. Stewart, Jr., New Orleans, for defendant-appellee.
    Before BYRNES, GULOTTA and WARD, JJ.
   BYRNES, Judge.

This is an appeal from the granting of a motion for partial summary judgment. We affirm.

In June and July 1976, plaintiff-appellants, Luther and Nora Lee Barr entered into a series of building contracts with Cool Vue Aluminum for the construction of a patio addition to their home. Work was completed in August 1976 and almost immediately the Barrs began to notice defects in the addition, some of which caused damage to the original structure. Suit was filed against Cool Vue which joined its insurer, Sentry Insurance Co., as a third party defendant. The Barrs amended their petition to name Sentry as a defendant in the main demand. Sentry responded with a motion for partial summary judgment, admitting liability under its policy for damages to the original structure and its duty to defend Cool Vue against those claims, but denying liability for defects in the addition or any duty to defend Cool Vue against such claims.

In its motion for summary judgment Sentry prayed for dismissal of all claims by either the Barrs or Cool Vue for defects in the addition and of Cool Vue’s claim that Sentry owed a duty to defend Cool Vue against such claims.

The basis of Sentry’s motion was the contention that its policy with Cool Vue specifically excluded coverage for defects in the addition. The exclusion on which Sentry relied reads as follows:

[This insurance does not apply;]
(a.) to liability assumed by the insured under any contract or agreement except an incidental contract; but this exclusion does not apply to a warrant of fitness or quality of the named insured’s products or warranty that work performed by or on behalf of the named insured will be done in a workman like manner;
(N) To property damage to the named insured’s product arising out of such products or any part of such products;
(O) To property damage to work performed by or on behalf of the named insured arising out of the work or any portion thereof, or out of materials, parts or equipment furnished in connection therewith.”

The Barrs and Cool Vue contend that exclusions (n) and- (o) are ambiguous and in conflict with exclusion (a). We find this contention to be without merit.

In Vitenas v. Centanni, 381 So.2d 531 (La.App. 4th Cir.1981), this court found identical provisions to be unambiguous and applied them as written to exclude coverage for similar damage. In analyzing the exclusions the court held:

Primarily we find no conflict in these exclusions. Exclusion (a) is simply contained within itself, and the remainder of that exclusion does not apply to the policy generally, only to the effect of that liability assumed except [by] an incidental contract.

Applying this analysis to the case at hand it appears that Cool Vue’s policy with Sentry does not apply to damages caused by defective work or by defective products used in that work and thus summary judgment on this issue was correctly granted.

As to the other exclusions we note that to trigger liability there must first be an occurrence as defined in the policy. The exclusions in question define which occurrences are covered and which are not. In this case the defects which relate to the motion before this court fall squarely within the risks excluded by sections (n) and (o) of the policy.

If there is no coverage with regard to the patio addition it is difficult to conceive how a duty to defend Cool Yue against the Barr’s claims could arise. This is not a case where a policy provides coverage but the validity of the claim is questionable. In this case the damage for which recovery is sought is specifically excluded from the policy in question. In such a situation there is no duty to defend. American Automobile Association v. Globe Indemnity Co., 362 So.2d 1206 (La.App. 4th Cir.1978).

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

AFFIRMED.


author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Leroy BELL.
    No. KA 0696.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., William R. Campbell, Jr., Asst. Dist. Atty., New Orleans, for appellee.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   CIACCIO, Judge.

Defendant, Leroy Bell was charged with being a convicted felon in possession of a firearm. R.S. 14:95.1. He was tried before a judge, found guilty as charged and sentenced to imprisonment for three (3) years at hard labor. Defendant was granted an out of time appeal. We affirm the conviction and sentence.

On October 20, 1981 at approximately 11:30 a.m., New Orleans Police Officers Keith Turner and Norbert Zimmerman responded to a dispatch call to investígate a disturbance at the Desire Housing Project in New Orleans. Upon arriving at the Desire Housing Office at 3367 Desire Street in New Orleans, the policemen were met by Carolyn Howard, the complainant. Miss Howard was upset and crying. She informed the officers that her former boyfriend and father of her child, Leroy Bell, had thrown hot water on her and pointed a loaded pistol at her while threatening to shoot her. She advised the police officers that Bell was currently in her apartment at 2902 Desire Street, Apartment “C”. The police accompanied by the victim proceeded to her apartment. The officers entered the apartment first, followed by the victim. Leroy Bell was in the kitchen at the time the three entered the apartment. The police placed Bell under arrest for aggravated assault and aggravated battery. Ms. Howard consented to a search of her residence wherein she directed the police officers to the .38 caliber revolver which was located under the mattress in her bedroom. A box of shells was recovered from a shelf in the closet. When police asked the accused his name he first told them it was “Hughes”. Once the defendant’s real identity was ascertained, a computer check revealed that he had been convicted of the felony of possession of barbituarates with intent to distribute. R.S. 40:968. He was then charged with being a convicted felon in possession of a firearm.

At the trial of this matter, Ms. Howard testified that she and Bell were acquainted romantically but that they had not lived together for a couple of months. She stated that on the night preceding the defendant’s arrest that the couple had become involved in an argument over a female friend of the defendant - from California, whom the defendant wanted to stay at the victim’s house. The three had allegedly stayed at the victim’s house on the two prior nights and Ms. Howard then decided she did not want the couple to stay at her house any longer. The altercation took place at about 7:08 p.m. on the night preceding the arrest. According to the victim, the defendant pulled the gun from his back pocket and a struggle ensued as the victim attempted to keep the defendant from loading the gun. The victim stated that she did not call the police on the night of the altercation because she did not get out of the house until the next morning. She also testified that she did not know what Bell did with the gun before the police came because she had left to call the police.

In seeking a reversal of his conviction, the defendant relies upon one assignment of error. The defendant contends that the state failed to prove its case beyond a reasonable doubt. In support of his contention, the defendant argues that the trial judge abused his discretion in finding the prosecution witness credible. He argues further that while a judge may be allowed to determine the credibility of a witness, he should not be allowed, in so doing, to resolve any inconsistency within the testimony so that the prosecution’s case, when viewed as a whole, is sufficient to prove the defendant guilty beyond a reasonable doubt. The defendant points to certain apparent inconsistencies in the victim’s testimony, in attacking her credibility.

The standard of review in this case is that enunciated in Jackson v. Virginia, namely whether any rational trier of fact, when viewing the evidence in the light most favorable to the prosecution, could have found that the State proved the essential elements of the crime beyond a reasonable doubt. 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). State v. Edwards, 400 So.2d 1370 (La., 1981).

In discussing the resolution of conflicting inferences in such a review, the U.S. Supreme Court in Jackson, supra 99 S.Ct. at 2793, stated:

Under the standard established in this opinion as necessary to preserve the due process protection recognized in Winship, a federal habeas corpus court faced with a record of historical facts that supports conflicting inferences must presume— even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.

While the appellate review standard entails for its application some assessment of the evidence presented at trial, it does not however make this Court a fact finder. See State v. Edwards, supra.

In this case the accused was charged with being a convicted felon in possession of a firearm. R.S. 14:95.1. The essential elements of the crime are set forth in R.S. 14:95.1(A) which provides:

95.1. Possession of firearm or carrying concealed weapon by a person convicted of certain felonies
A. It is unlawful for any person who has been convicted of first or second degree murder, manslaughter, aggravated battery, aggravated or simple rape, aggravated kidnapping, aggravated arson, aggravated or simple burglary, armed or simple robbery, burglary of a pharmacy, burglary of an inhabited dwelling, or any violation of the Uniform Controlled Dangerous Substances Law which is a felony or any crime defined as an attempt to commit one of the above enumerated offenses under the laws of this state, or who has been convicted under the laws of any other state or of the United States or of any foreign government or country of a crime which if committed in this state, would be one of the above enumerated crimes, to possess a firearm or carry a concealed weapon. (Emphasis added)

The purpose of this statute is to limit the possession of firearms by persons who, by their past commission of certain enumerated felonies, have demonstrated a dangerous disregard for the law and present a potential threat of further or future criminal activity. State v. Amos, 343 So.2d 166 (La., 1977). As a result, three elements must be proven in order to convict an accused of this offense:

1.) status of defendant as a convicted felon
2.) possession by the defendant
3.) the instrumentality possessed was a firearm

In State v. Day, 410 So.2d 741 (La., 1982), the Louisiana Supreme Court noted that “actual” possession is not required, nor does the defendant actually have to have the firearm on his person. Thus, “constructive” possession will satisfy this element of the offense. State v. Day, supra.

In this case the parties stipulated that this defendant was convicted of possession of barbituarates and a certified copy of his conviction was entered into evidence. (TR 16) The firearm which was retrieved from the scene of the crime, a .38 caliber revolver, was introduced into evidence without objection. (TR 33)

The balance of the evidence establishes that the State proved the defendant’s “possession” of the firearm beyond a reasonable doubt.

Officer Keith Turner testified that a search of the victim’s apartment produced a .38 caliber revolver. This evidence was retrieved from under the mattress in the bedroom and a box of shells was taken from a shelf in the bedroom. He made an in-court identification of this tangible evidence. He testified that at the time of the seizure the gun was fully loaded. He stated that the defendant was originally arrested for tossing hot water on the victim and pointing a gun at her.

Officer Norbert Zimmerman testified that on October 20, 1981 he responded to a disturbance call at 3367 Desire Street. There he met with the victim who advised him that the defendant had thrown hot water on her and had pointed a weapon at her, threatening to kill her. He stated that his patrol partner had gone to the bedroom with the victim where he retrieved a gun and ammunition. This officer identified the weapon and shells as being those seized on the night of this incident. He testified that the defendant identified himself as Leroy “Hughes” when he was questioned as to his identity.

Although Carolyn Howard’s testimony, at times, appeared to result in conflicting inferences, we must presume that the trial judge resolved these conflicts in favor of the prosecution. On the crucial issue of the defendant’s “possession” of the firearm, Ms. Howard testified unequivocally to the following facts:

Q. Would you tell the Court the reason you called the police?
A. Because he tried to get this young lady that he brought from California to try to stay at my house and he took and throwed hot water on me and shoved a pistol at me and when I could I went and called the police.
Q. Now, you mentioned that he placed a pistol—
A. He was talking about shooting me.
A. Okay.
I show you what I have marked for identification as S — 1 and ask you if you can identify this?
A. That’s he [sic] gun with the bullets.
Q. Where was the gun and bullets when the police came?
A. The bullets was on my shelf and the gun was under the mattress.
Q; Where was the gun when he originally put it on you?
A. It was on him.
******
Q. I want you to explain to the Judge the manner in which he placed the gun on you. In other words, I want you to explain what were his actions before you called the police?
A. He came in and turned the TV up loud and was trying to shut me in the room, and I managed to get out and we was fighting with the gun and while we was fighting with the gun I was trying to keep him from loading the gun and—
Q. Where were the shells then?
A. In the bag.
Q. Did you see where the gun came from originally?
A. Out of his back pocket. [TR 24-25]

Therefore, viewing the totality of the evidence in the light most favorable to the prosecution, this Court is satisfied that the State proved the essential elements of R.S. 14:95.1 beyond a reasonable doubt. Accordingly, this assignment of error lacks merit.

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

AFFIRMED.

      . The defendant suggests the following:
      1. Ms. Howard stated that the defendant threw hot water on her, pointed a gun at her and that she struggled with him. The police stated that the victim was not wet, had no scald marks and the apartment did not appear ransacked.
      2. Ms. Howard first stated that the defendant showed up at her apartment with another girlfriend, an argument ensued and the girlfriend left. She later stated that Bell and the other girl stayed a few days at her apartment and the argument ensued when she asked them to leave.
      3. The incident occurred at 7:08 p.m. on October 19, 1981 and the police were called the next morning around 11:00 a.m.
      4. The victim stated that she didn’t know where the gun was when she left the apartment, but she lead police to the gun upon her re-entry into the apartment.


text:
    Cecil B. BERRY v. BANK OF LOUISIANA.
    No. CA 0741.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.

      Clarence F. Favret, Jr., New Orleans, for appellant.
    John H. Gniady, Michael H. Bagot, New Orleans, for appellee.
    Before REDMANN, SCHOTT and CIAC-CIO, JJ.
   CIACCIO, Judge.

The district court rendered judgment sustaining the defendant’s exception of no cause of action and the plaintiff appeals. We reverse the trial court judgment which dismissed the plaintiff’s suit, and remand the case for further proceedings.

The sole issue presented on appeal is whether the plaintiff’s petition states a cause of action.

The plaintiff, Cecil B. Berry sued the Bank of Louisiana in an attempt to recover a payment made to the defendant by its issuing bank, First Metropolitan, pursuant to an Irrevocable Letter of Credit. The Letter of Credit, which is the subject of this litigation was issued by First Metropolitan Bank at the plaintiff’s request. On January 19,1981 the Irrevocable Letter of Credit was issued and received by Mr. Charles Lacoste, Jr. It had been signed by the proper banking authorities, and it reads as follows:

January 19, 1981
NOLEASCO
Charles L. Lacoste, Jr.
P.O. Box 13336
New Orleans, Louisiana 70185
Stanley Letter of Credit No. 811901
$100,000.00 Aggregate Total
Expiration Date: October 31, 1982
Dear Mr. Lacoste:
We hereby establish an irrevocable standby credit No. 811901 in your favor for the account of Cecil B. Berry, for a sum not to exceed $100,000.00 U.S. currency, available by your draft on First Metropolitan Bank, Metairie, Louisiana, subject to the following conditions:
Funds may be drawn under this letter of credit, between September 30, 1982 and its expiration, October 31, 1982, upon receipt of an affidavit of an officer of any bank or lending institution which has extended credit to NOLEASCO, an Ordinary Partnership in Commendam; which affidavit states that said bank or lending institution has extended credit to the partnership upon its Letter of Credit, and such loan is due and unpaid or in default. This credit is subject to the Uniform Customs and Practices for Documentary Credits (1974 Revision) International Chamber of Commerce Brochure No. 290. We hereby agree with you and negotiating banks or bankers that drafts under and in compliance with the terms of the credit shall be duly honored on due presentation to the drawer.

According to the plaintiff’s petition, Mr. Lacoste owed a debt to the defendant bank of $57,833.34. Mr. Lacoste presented the Irrevocable Letter of Credit to the defendant in conjunction with this debt. The defendant, according to the plaintiff, presented the Letter to the issuing bank and the issuing bank paid the defendant pursuant to the Irrevocable Letter of Credit. In seeking recovery against the Bank of Louisiana the plaintiff’s petition makes the following allegations as a basis for recovery:

6.
Petitioner was a Limited Partner in the NOLEASCO Partnership and the said Letter of Credit was issued in connection with his investment in the said Partnership and for the purpose of acquiring a pipe laying barge known as “SHERYL ANN.”
7.
Petitioner would show that the said Charles L. Lacoste delivered the said Letter of Credit to the Bank of Louisiana and used the same for personal purposes, entirely unrelated to the purposes for which the said Letter of Credit was issued and the objects and purposes of the Partnership in actions which were f[r]agrantly fraudulent and for which petitioner filed suit and obtained Judgment in proceedings entitled “, Cecil B. Berry et als vs. Noleasco Partnership, Noleasco, Inc. and Charles L. Lacoste, Jr.” No. 82-5958 of the Civil District Court of the Parish of Orleans and the said proceedings and Judgment entered therein are incorporated herein by reference.
On September 30, 1982 defendant presented the said Letter of Credit to the First Metropolitan Bank for payment of a debt due the defendant by Charles L. Lacoste, Jr. in the sum of $57,833.34 and was paid the said sum by First Metropolitan Bank and your petitioner’s account was charged with the said amount.
8.
Petitioner would show that the terms and conditions under which Charles L. Lacoste, Jr. became indebted to the Bank of Louisiana were such that were not covered by the terms of the Letter of Credit and petitioner is entitled to claim and recover from the Bank of Louisiana the said sum of $57,833.34 plus whatever additional interest he may be required to pay on this amount and reasonable attorneys’ fees.
⅜ # ⅜: ⅝ ⅞5 *

A letter of credit is, by definition, an engagement by a bank made at the request of a customer that the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit. R.S. 10:5-103(1)(a). Schweibish v. Pontchartrain State Bank, 389 So.2d 731 (La.App., 4th Cir., 1980) writ denied La., 396 So.2d 885.

Unless otherwise agreed a credit is established as regards the beneficiary when he receives a letter of credit or an authorized advice of its issuance. R.S. 10:5-106. The beneficiary, unless otherwise agreed, by transferring or presenting a documentary draft or demand for payment warrants to all interested parties that the necessary conditions of the credit have been complied with. R.S. 10:5-111. Thus, the issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract between the customer and the beneficiary. R.S. 10:5-114. Schweibish v. Pontchartrain State Bank, supra.

The Louisiana Supreme Court, in Haskins v. Clary, 346 So.2d 193 at 194-195 (La., 1977) discussed the factors to be considered in disposing of an exception of no cause of action:

The peremptory exception of no cause of action tests the legal sufficiency of the petition, and is triable on the face of the papers. For the purpose of determining the validity of the exception, all well-pleaded allegations of fact are accepted as true, and if the allegations set forth a cause of action as to any part of the demand, the exception must be overruled. Pence v. Ketchum, 326 So.2d 831 (La.1976); Hero Lands Company v. Texaco, Inc., 310 So.2d 93 (La.1975); Louisiana State Board of Medical Examiners v. England, 252 La. 1000, 215 So.2d 640 (1968).
Liberal rules of pleading prevail in Louisiana and each pleading should be so construed as to do substantial justice. La.C.C.P. art. 865; Pence v. Ketchum, supra; Eschete v. City of New Orleans, 258 La. 133, 245 So.2d 383 (1971). When it can reasonably do so, the court should maintain a petition so as to afford the litigant an opportunity to present his evidence. Pence v. Ketchum, supra; Hero Lands Company v. Texaco, Inc., supra; Eschete v. City of New Orleans, supra; Erath Sugar Company v. Broussard, 240 La. 949, 125 So.2d 776 (1961).

We have reviewed the plaintiff’s petition, accepting the allegations of facts as true and we find that, on its face, it sets forth a cause of action.

The plaintiff complains that the defendant deviated from the express terms of the letter of credit and further alleges that the defendant negotiated the letter of credit based upon a personal indebtedness of Charles Lacoste, Jr. and not in compliance with the terms of the letter of credit which required the beneficiary to have “extended credit to NOLEASCO, an Ordinary Partnership in Commendam.” The petition states a cause of action in warranty. R.S. 10:5-111.

Therefore, the trial court judge incorrectly dismissed the plaintiff’s suit for its failure to state a cause of action.

Accordingly, for the reasons assigned, the judgment of the district court sustaining the exception of no cause of action is reversed. The case is remanded to the district court for further proceedings. Costs of this appeal are assessed against appellee with other costs to be determined at the conclusion of the case.

REVERSED AND REMANDED.


author: LOBRANO, Judge.

text:
    Charles L. BROWN, Jr. v. Mrs. Mary Howard McLaughlin wife of Charles L. BROWN, Jr.
    No. CA-0494.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 6, 1983.
    As Corrected Oct. 13, 1983.

      John L. Hantel, New Orleans, for plaintiff/appellee.
    Mary Howard McLaughlin Brown, in pro. per.
    Before GARRISON, LOBRANO and AUGUSTINE, JJ.
   LOBRANO, Judge.

This appeal arises out of a suit for partition of the former community of acquets and gains which existed between appellee Dr. Charles L. Brown, Jr. and his first wife, appellant Mary Howard McLaughlin.

Appellant and appellee were divorced in a separate proceeding in the Civil District court for the Parish of Orleans, State of Louisiana by judgment dated May 29, 1975. Appellee filed the instant partition suit six months later. A special note is made that this appeal is limited to the subject matter of that partition suit only. Appellant attempts to interject other issues including alimony, child support, custody and fault in the divorce all of which are irrelevant to the partition of the community. This Court in an order dated April 14, 1983 already recognized that a large portion of appellant’s arguments are totally irrelevant to the issues on appeal. Accordingly this court will address only the relevant issues concerning the partition proceeding.

In his suit for partition, appellee filed a descriptive list and valuation of community property and a subsequent amendment thereto. Also included was a list of all community obligations. Although appellant answered the partition suit she never traversed appellee’s descriptive lists or his lists of debts and assets, nor did she ever file any opposing lists.

On November 19, 1981, a partial consent judgment of the parties was signed recognizing their agreement to list for private sale the major asset of the former community, the family home at 296 Audubon Boulevard in New Orleans, Louisiana. An offer of $175,000.00 cash was accepted by both parties and the sale took place on March 12, 1982. In addition to normal closing costs, the closing notary paid a number of judgments and liens recorded against appellant for separate debts incurred by her after the divorce. Also, both parties agreed that a large community debt owed to the Whitney National Bank be paid to stop the continued accrual of interest. After these payments, there remained net proceeds from the sale of the house in the amount of $26,236.48. However, prior to the sale, appellant’s former attorneys, Tucker and Schonekas, filed a lien of public record claiming that out of the community they were entitled to payment of $19,850.70 in attorney fees. Appellee opposed this claim on the grounds that Tucker and Schonekas were retained only by appellant after the divorce and subsequent to the dissolution of the community.

As a result of this lien, the closing Notary deposited the sum of $19,850.70 in the registry of the Civil District Court by way of a concursus. Tucker and Schonekas filed an intervention in this partition proceeding asserting their claim.

Trial on the merits was held April 1,1982. Both appellant and appellee were represented by counsel. During the course of the trial, seven exhibits were jointly offered and introduced into evidence pertaining to various community debts, assets and their values. One such exhibit was entitled “accounting”. This “accounting” contained a breakdown and analysis of the allocation between the parties of the expenses and debts that should be paid from the sale proceeds as well as the division of other community debts and obligations. The trial court rendered judgment April 30, 1982, which judgment provided:

1) the intervention of Tucker and Schonekas for attorney fees was dismissed at their costs;
2) the descriptive lists and valuation of community property filed in the record by appellee were sustained and approved;
3) the list of community debts filed in the record by appellee were sustained;
4) the “accounting” filed as a joint exhibit by appellant and appellee was approved;
5) that appellee be entitled to the balance of the funds remaining from the sale of the family home;
6) Appellee is responsible for and must pay, out of these proceeds $7,000 to Mrs. Charles L. Brown, Sr., $300.00 for appraisal fees and $900.00 for insurance.

Receipts evidencing payment of these debts was ordered filed in the record, and appellant was released and discharged from any further obligation, liability and responsibility for the above debts.

Based on the joint exhibits and other evidence introduced at trial, it was found that appellant’s indebtedness with respect to the former community exceeded her interest. Appellee’s rights with respect to appellant’s deficit were reserved in the judgment. This appeal followed.

As best that can be ascertained from appellant’s brief it appears that her complaints before this court constitute an objection to:

1) the distribution of the proceeds from the sale of the family home and;
2) a review of the community assets that were divided.

At no time in her arguments before this court does appellant specify any particular error made by the trial court in rendering its judgment. Thus we have carefully reviewed the evidence and testimony introduced at trial and we find no manifest error in the ruling of the trial court. Canter v. Koehring, 283 So.2d 716 (La.1973).

Appellant never opposed or refuted the evidence presented at trial. No traversal was ever filed by her with respect to the descriptive lists of community property, debts and assets filed by appellee. Those portions of appellants brief which purport to pertain to the trial of the partition almost entirely constitute an effort by appellant to add new testimony and documentation to the record which were never before the trial court. This court is bound to review a case only on the record. No new evidence or testimony can be added to the record at the appellate level. Capital Bank and Trust Co. v. Lacey, 393 So.2d 668 (La.1980); Good v. Louisiana Commission on Governmental Ethics, 370 So.2d 123 (La.App. 1st Cir.1979); Succ. of Johnson, 278 So.2d 164 (La.App. 4th Cir.1973).

The “accounting” and other exhibits relied upon by the trial court in rendering its judgment were not exhibits of appellee but joint exhibits of both parties. The “accounting” sets forth in detail the correct division of the assets and credits of the former community and the allocation between the parties of all the pertinent debts and obligations pertaining to those assets and credits. Appellant, at no time, before or during the trial offered her own accounting to refute that of appellee. In addition to the accounting being offered as a joint exhibit, the testimony at the trial substantiates the contents of the “accounting”.

Appellant admitted during her testimony that she was solely responsible for the many judgments and debts attributable to her. Those debts which she did question, she failed to offer any proof to the contrary. Her only defense was that she could not remember if they were incurred during the existence óf the community or after its dissolution. It is basic to the laws of evidence that a party is bound by the evidence both testimonial and documentary which he or she introduces at trial. Appellant cannot now complain as to the contents of the exhibits she joined in introducing. Any opposition which appellant may have had to the evidence presented at trial had to be presented during the trial or prior thereto. Breeden v. Breeden, 147 So. 757 (La.App. 1st Cir.1933); Rush v. Sterkx, 47 So.2d 344 (La.App. 2nd Cir.1950); Madison v. Orleans Datsum, 405 So.2d 350 (La.App. 4th Cir.1981).

For the foregoing reasons the judgment of the trial court is affirmed.

AFFIRMED.