text:
    Steve A. VERZWYVELT, et ux, Plaintiffs-Appellees, v. ARMSTRONG-RATTERREE, INC., Defendant-Appellant.
    No. 84-86.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      Michael Henry, Natchitoches, for defendant-appellant.
    Charles R. Whitehead, Jr., Natchitoches, for plaintiffs-appellees.
    Michael I. Murphy, Natchitoches, amicus curiae.
    Before DOMENGEAUX, STOKER and KING, JJ.
   DOMENGEAUX, Judge.

This is a possessory action instituted by plaintiffs-appellees, Steve A. Verzwyvelt and his wife, Mary Margaret Lemoine Verzwyvelt. The lawsuit was brought as a result of an alleged disturbance in fact perpetrated by defendant appellant, Armstrong-Ratterree, Inc.

Prior to 1972, the Red River negotiated a hairpin curve as it proceeded through Township 9 North, Range 6 West, of Natchitoches Parish. The peninsula — like section of land within this hairpin curve made up part of the Island Plantation owned by Mr. and Mrs. George A. Thomas, (as shown in illustration No. 1 below).

In 1972, the Red River suddenly abandoned its course and surged forth creating a new channel; the hairpin curve of the old channel was transformed into an oxbow lake and the 214.3 acre tract of land which once made up the area within the hairpin curve was separated from the remainder of the Island Plantation by the new channel, (as shown in illustration No. 2 below).

The following diagrams are for illustrative purposes only. They are not scale drawings.

On December 31,1979, the plaintiffs purchased from Mr. and Mrs. Thomas the 214.3 acre tract of land described in the deed of acquisition as being “bounded on the North by Red River and on the West, South, and East by a former bed or channel of Red River.” The deed went on to state that the sale included “all accretion, allu-vion, avulsion, sandbars, batture, second banks, and all rights that the vendor may have in and to the former channel of Red River which adjoins the ... tract.” The title further stated “[i]t being understood and agreed that the vendor is transferring to the vendee herein all of the rights that may accrue to the above described property as the result of accretion, alluvion, avulsion, and the like including but not limited to those rights under Articles 509 through 518, of the Louisiana Civil Code.” The property at issue in this case is the oxbow lake created in the former channel of the Red River.

The plaintiffs filed this possessory action claiming that they possessed the oxbow lake created by the former channel of the Red River and prayed that they be maintained in the peaceable possession of that property. The plaintiffs aver that they were disturbed in their possession when the employees of the defendant corporation, Armstrong-Ratterree, Inc. placed a pipe into the oxbow lake and began pumping water out of the lake for irrigation of the defendant's farmlands abutting the lake.

The defendant answered, admitting that it had pumped water out of the former channel of the Red River but denied that the plaintiffs were in possession of the property. The defendant further asserted that it was entitled to extract water from the former channel under the provisions of La.C.C. Art. 657 which allows a property owner adjoining running water to use it as it runs for the purpose of watering his estate.

The district judge ruled that the plaintiffs were in possession of the former channel of the Red River. In a written opinion he cited various acts which he considered as constituting possession, such as:

1. Granting permission to various named individuals to build duck blinds and hunt upon the oxbow lake;

2. Clearing land with bulldozers along the low banks of the oxbow lake; and

3. Building a control structure at the juncture of the oxbow lake and the Red River for the purpose of regulating the level of the water in the lake.

The trial judge ruled that as plaintiffs were in possession of the lake, and as the water in the lake was not running water, the provisions of La.C.C. Art. 657 did not apply. The court therefore concluded that the defendant’s pumping operations constituted a disturbance in fact and ordered the defendant to pay damages to plaintiff in the amount of $1,250.00, plus interest, and court costs. The judgment further ordered the defendant to assert its claim of ownership to the disputed property within sixty days from the date the judgment becomes executory.

The defendant-appellant raises two issues on this appeal:

1. Whether the plaintiffs’ actions in connection with the former channel of the Red River (the oxbow lake) were sufficient to establish the possession required to bring a possessory action.

2. If it is determined that plaintiffs are in possession of the old channel does the defendant’s act of pumping water out of the former channel (the oxbow lake) constitute a disturbance of plaintiff’s possession?

ISSUE 1

The possessory action is one brought by the possessor of immovable property or of a real right therein to be maintained in his possession of the property or enjoyment of the right when he has been disturbed, or to be restored to the possession or enjoyment thereof when he has been evicted. La.C. C.P. Art. 3655.

To maintain the possessory action, the possessor must allege and prove that he had possession as owner at the time of the disturbance; that he and his ancestors in title possessed quietly and uninterruptedly for more than one year immediately prior to the disturbance; that there has been a disturbance in law or in fact; and that the action was brought within one year of the disturbance. La.C.C.P. Art. 3658.

The possession necessary to maintain a possessory action must be either corporeal possession or civil possession preceded by corporeal possession by the plaintiff or his ancestors in title. La.C.C.P. Art. 3660; Liner v. Louisiana Land and Exploration Company, 319 So.2d 766 (La. 1975); Roy 0. Martin Lumber Company, Inc. v. Lemoine, 381 So.2d 915 (La.App. 3rd Cir.1980); and Crowel Land and Mineral Corporation v. Neal, 428 So.2d 496 (La.App. 3rd Cir.1983).

The elements and characteristics of the possession necessary to maintain a pos-sessory action vary with the nature of the property and other attending relevant circumstances. What constitutes possession in any case is a question of fact and each case must rest upon its own peculiar circumstances. Plaisance v. Collins, 365 So.2d 608 (La.App. 1st Cir.1978). [Citation omitted].

It is a well established principle of law that physical occupancy of any part of a tract specifically described in a deed with the intent to possess the whole will constitute possession of all the property included therein. Former La.C.C. Art. 3437 and La. C.C.P. Art. 3661; Roy 0. Martin Lumber Company, Inc., v. Lemoine, supra, and Crowel Land and Mineral Corporation v. Neal, supra. “Therefore, a possessory action may be brought to quiet possession in an entire estate to which the plaintiff holds title although he can only show actual possession of a part thereof.” Riseman, The Possessory Action, 20 Tulane Law Review, 524 (1946). See also Sallier v. Bartley, 113 La. 400, 37 So. 6 (1904); Leonard v. Garrett, 128 La. 535, 54 So. 984 (1911); and Rhodes v. Collier, 215 La. 754, 41 So.2d 669 (1949).

In a possessory action the title to immovable property shall only be introduced to prove:

1. The possession thereof by a party as owner;

2. The extent of the possession thereof by a party; or

3. The length of time in which a party and his ancestors in title have had possession thereof.

La.C.C.P. Art. 3661.

This being a possessory action, any references made by this Court to the plaintiffs’ title are restricted to the limited purposes enumerated in La.C.C.P. Art. 3661.

In the instant case the Verzwyvelts introduced into evidence a deed describing the property they purchased from Mr. and Mrs. Georege Allen Thomas. The title includes 214.3 acres of high ground as well as “all accretion, alluvion, avulsion, sandbars, batture, second banks, and all rights that the vendor may have in and to the former channel of Red River which adjoins the ... tract.” Also included in the title was “all of the rights that may accrue to the above described property as the result of accretion, alluvion, avulsion, and the like, including but not limited to those rights under Articles 509 through 518, of the Louisiana Civil Code.” Mr. Verzwyvelt testified that when he purchased the property he understood and believed that he was purchasing the former channel of the Red River and further that he possessed the abandoned channel.

La.C.C.P. Art. 3661 allows a title to be introduced to prove the extent of the plaintiffs’ possession. The Verzwyvelt’s title can therefore be used to determine the bounds of the property they intended to possess. The title makes reference to the term avulsion and also to La.C.C. Art. 518 (see footnote 1, supra, for text of Article 518). Inasmuch as the term avulsion and Article 518 are adverted to in the title we must examine their meaning in context with the title as a whole to ascertain the extent of the Verzwyvelt’s title.

The term avulsion is defined by the Louisiana Jurisprudence as “a sudden and perceptible change in the course and channel of the river.” Dickson v. Sandefur, 235 So.2d 579 (La.App. 2nd Cir.1970), modified on appeal, 259 La. 473, 250 So.2d 708 (1971).

La.C.C. Art. 518 states in pertinent part:

“If a river or stream, whether navigable or not, opens itself a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost.”

The Red River abandoned its course in 1972, and formed a new bed through the Thomas’ property. The action of the Red River in abandoning its course and opening a new bed constitutes avulsion. La.C.C. Art. 518 gives a landowner whose property was taken by the new channel the former channel.

For the purposes of determining the extent of the Verzwyvelts’ possession we interpret their title as including the former channel of the Red River.

There is evidence in the record that the Verzwyvelts corporeally possessed the 214.3 acres of high ground by raising agricultural crops and grazing cattle upon it. The record also indicates that Mr. Verzwy-velt constructed a water control structure where the oxbow lake created in the former channel meets the Red River. Evidence was further adduced that Mr. Verzwyvelt conducted land clearing operations along the banks of the former channel and granted permission to certain named individuals to build duck blinds and hunt upon the lake.

The Verzwyvelts have entered a title into evidence and have testified that they believe they possess within the bounds of their title. The evidence is sufficient to prove that the plaintiffs exercised physical possession of a considerable part of the land described in their deed. The acts of physical possession recited above combined with the deed describing the property in dispute establishes that the Verzwyvelts had sufficient corporeal possession of other parts of the tract to constitute constructive possession of the whole as provided in former La.C.C. Arts. 3437 and 3431.

At oral argument, the appellant cited the Louisiana Supreme Court case of Chaney v. State Mineral Board, 444 So.2d 105 (La.1983), and contends that Chaney should be controlling here. It argues that the acts of possession exhibited by the plaintiffs in the Chaney case “were much more open, notorious, and adverse than the acts testified to by Mr. Verzwyvelt”, and therefore the district judge was in error for holding that the acts of Mr. Verzwyvelt were sufficient to prove possession.

We distinguish Chaney from the case at hand. In Chaney, titles of the riparian landowner plaintiffs were not introduced into evidence. Here, Mr. Verzwyvelt did enter a title into evidence. The Chaney case supports our holding. Therein, the Court cited City of New Orleans v. New Orleans Canal, Inc., et al, 412 So.2d 975 (La.1982) for the proposition that:

“When a possessor has a title, his exercise of possession over a part of the property constitutes the exercise of constructive possession of the whole; however, when a possessor does not have a title, his claim of possession is limited in extent to that property shown by enclosures (artificial or natural boundaries) and his possession must be proved ‘inch by inch’ so that the possessor must establish actual, physical and corporeal possession over the entire amount of land claimed in the possessory action. Stated otherwise, the possessor without title is entitled to be maintained in possession only to the extent of the boundaries within which he proved actual, physical and corporeal possession.”

For the purposes of this possessory action and as was shown, supra, Mr. Verzwy-velt has introduced a title into evidence and proven corporeal possession over a part of the property within the bounds of that title. He therefore is deemed to be in possession of the entire tract described in his deed.

ISSUE 2

The defendant-appellant argues that the trial judge was in error for holding that the act of pumping water out of the former channel for irrigation purposes was a disturbance in fact. It contends that it had a natural servitude over the water in the one time channel of the Red River under the provisions of La.C.C. Art. 657.

La.C.C. Art. 657 provides that:

“[t]he owner of an estate bordering on running water may use it as it runs for the purpose of watering his estate or for other purposes.”

We do not agree with the appellant’s assertion that it has a natural servitude over the water in the abandoned channel. We premise our position on the trial court’s factual determination that the water in the abandoned channel is not “running water” as contemplated by La.C.C. Art. 657.

Whether water is “running water” for the purpose of La.C.C. Art. 657 is a factual issue to be determined by the trial court. Before an appellate court can disturb the factual determination of the trial court, it must be determined that the finding of fact is manifestly erroneous and has no reasonable basis. Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978).

In his written opinion the district judge stated:

“The court finds that Article 657 is inapplicable in this case because this is not running water. The defendant itself admits in its exhibit A-9 that, and properly so, that this is a lake. The fact that a drainage canal drains into it does not alter the fact that this body of water is a garden variety ox-bow lake of the type common to the rivers, streams and bayous of this state.”

There is evidence in the record to support the district judge’s factual findings. The former channel of the Red River which is at issue in this appeal meets the Red River at two junctures. The upstream juncture of the Red River and the former channel has been completely sealed off by the natural buildup of soil. The downstream juncture has been partially sealed off by natural causes, and is the site of the earthen control structure constructed by Mr. Verzwyvelt.

The one time channel depends upon excessive rainfall and upon overflow from the Red River for its supply of water. When the Red River overflows its banks, wate from the river innundates the former channel. When the Red River’s water level drops, the water in the former channel will drop until it reaches the natural structure formed at the downstream juncture (and now, until it reaches the level of the plaintiff’s control structure.) The flow of water in the channel depends almost totally upon the level of the Red River. During much of the year the water in the onetime channel is stagnant.

Also convincing to us that all parties involved considered this body to be an oxbow lake is a letter sent by the President of the defendant corporation to Mr. Verzwy-velt which repeatedly refers to the former channel as a “lake”.

As there is no continuous current in the former channel we fail to see how it can be construed as running water. We therefore conclude that the defendant-appellant does not have a natural servitude upon the water in the lake.

Inasmuch as the defendant admitted that he pumped water out of the lake we conclude that such actions constituted a disturbance in fact. A disturbance in fact is defined in La.C.C.P. Art. 3659 as “... an eviction, or any other physical act which prevents the possessor of immovable property or of a real right therein from enjoying his possession quietly, or which throws any obstacle in the way of that enjoyment.”

Certainly the act of pumping water from a lake possessed by Mr. and Mrs. Verzwy-velt is an example of a physical act which prevents the Verzwyvelts from enjoying their possession quietly.

The appellant argues in the alternative that should we find that the Verzwy-velts were in possession of the former channel, and that Armstrong-Ratterree did not have a natural servitude over the water in the channel that an award for damages was not justified.

The district judge awarded the plaintiffs $1,250.00 for their “inconvenience, worry, and concern.”

The appellant contends that “[tjhere is very little evidence in the record to support ...” the trial court’s damage award.

“[0]ne in legal possession of land is entitled to bring a suit for damages against one who disturbs his possession.” Garrett v. Martin Timber Company, Inc., 391 So.2d 928 (La.App. 2nd Cir.1980).

In the assessment of an award for damages “much discretion must be left to the [trial] judge or jury ...” La.C.C. Art. 1934(3), Reck v. Stevens, 373 So.2d 498 (La.1979).

“[B]efore a Court of Appeal can disturb an award made by a trial court ... the record must clearly reveal that the trier of fact abused its discretion in making its award. Only after making the finding that the record supports that the lower court abused its much discretion can the appellate court disturb the award ...” Coco v. Winston Industries, Inc., 341 So.2d 382 (La.1976) [Citations omitted].

We conclude that there exists sufficient evidence in the record to support the district judge’s award of damages. In light of such evidence we cannot hold that the trial court abused its much discretion in making the award.

For the above and foregoing reasons the judgment of the district court is affirmed.

AFFIRMED.

      . The sale of the property at issue in this case took place in 1972. The Civil Code Articles dealing with property were amended effective January 1, 1979. Article 518 of the Louisiana Civil Code dealing with avulsion read this way in 1972:
      "If a river or stream, whether navigable or not, opens itself a new bed by leaving its former channel, the owners of the soil newly occupied shall take, by way of indemnification, the former bed of the river, every one in proportion to the quantity of land he has lost.
      They shall again take their former property, if the river or stream returns to its former channel.”
      The 1979 amendment (now C.C. Art. 504) reproduced the substance of former C.C. Art. 518. See official comments to C.C. Art. 504.


source: Caselaw Access Project

author:
      STOKER, Judge.
      KING, Judge,

license: Public Domain

text:
    TOWN OF CHURCH POINT, Plaintiff-Appellee, v. Michael CARRIERE and Tammy Bellard Carriere, Defendants-Appellants.
    No. 84-103.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Malcolm Brasseaux, Church Point, for defendants-appellants.
    Yidrine & Wimberley, J. Lee Wimberley, Jr., Church Point, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

This is an appeal from a judgment of expropriation of certain property belonging to Michael Carriere and his wife, Tammy Bellard Carriere, defendants, in favor of the Town of Church Point, the plaintiff.

The Town of Church Point sought the property in question in connection with a street hard-surfacing project. The trial court granted the taking and expropriation and placed a value on the property to be expropriated at $560.

The Carrieres make six assignments of error:

1) The trial court erred in its determination that the Town of Church Point had negotiated in good faith with respect to the acquiring of property for its right-of-way.
2) The trial court erred in its determination of the value of the property expropriated.
3) The trial court erred in finding that the Carrieres would suffer no damage to their remaining property as a result of this taking.
4) The trial court erred in allowing the deposition of Kirney Thibodeaux to be introduced and received as evidence after timely objection by counsel for the Carrieres on the grounds that none of the situations permitting such introduction in lieu of the presence of the witness were shown to exist.
5) The trial court erred in its refusal to award attorney’s fees to defendants.
6) The trial court erred in casting defendants with costs.

FACTS

The property of defendants being taken consists of a residential lot fronting 104.35 feet on the northwest side of North Street in the Town of Church Point. In order to make an understanding of the facts of this case more intelligible we include as a part of this opinion and labeled as Exhibit 1, a portion of a plat of survey which appears in the record at transcript page 62. We have added to this plat certain data which we understand represent fact.

We have inserted on the plat the name of North Street which runs in a northeast and southwest direction. For convenience and simplicity the parties have referred to this direction as an east-west direction and to the properties along North Street as being north or south of North Street. We will follow the same course of description. From the plat it will be noted that Home Street forms a T-junction with North Street on the east (southeast) side of North Street at a point opposite the plaintiffs residential lot. Property belonging to Vidrine lies east of Home Street along the south side of North Street. Property belonging to the Gianfalas lies west of Home Street along the south side of North Street. Plaintiffs’ property lies on the north side of North Street opposite Home Street and the Vid-rine property.

West of the Carriere property the Town had obtained sufficient right-of-way north of North Street. East of the Carriere property the town had obtained sufficient right-of-way south of North Street. The Town then decided to put a curve in the street to connect the strips of right-of-way. To do this it would have to take a triangular piece of land from either the Carrieres or the Gianfalas, their neighbors on the other side of North Street. After negotiations with both the Carrieres and the Gianfalas, the Town decided to expropriate the property of the Carrieres. The Carriere property to be taken is triangular in shape consisting of a leg 104.35 feet long across the front of the lot on North Street, a leg 15.3 feet long along the west boundary of the Carriere lot and a leg beginning 15.3 feet inside the property on the west side line and stretching 105.47 feet to connect with the east front corner of the Carriere lot. (On Exhibit A, the plat, the lot is shown as Parcel 1 of the Carriere lot with corners marked as A, B and C).

The triangular part of the lot or tract of the Carrieres taken contains 798.28 square feet. In a minute entry the trial court fixed the values of this triangle at $558.80. The trial court thus assigned a value of seventy cents per square foot to the Carri-ere property taken. In its judgment the trial court rounded off its award for the property at an even $560.

We now take up the Carrieres’ assignments of error in the order given above.

GOOD FAITH NEGOTIATION

The first assignment of error, that the court erred in finding that the Town negotiated in good faith, lacks merit. The Carrieres were offered $1,000 for their property. They argue that the Gianfalas across the street were offered twice as much for the same thing. The Carrieres so reason because the Town offered the Gian-falas free blacktop on the North Street side of their property, worth about $2,000, in exchange for the right-of-way. The Town argues that the Gianfala property was worth more since it was a corner lot. The Town further urged that the expropriation would decrease the Gianfala frontage, which would significantly decrease the value of the property. The Carriere property is not a corner lot and the frontage would remain essentially the same after the expropriation.

In response to the offer of $1,000, Mr. Carriere demanded $30,000 for the property. He made no other offer. He had at least two or three meetings with the attorney for the Town of Church Point. At trial he testified that the only bad faith on the part of the Town was that they discussed the offer with his wife rather than with him.

With due respect to the Carrieres' argument that the Town of Church Point offered the Gianfalas twice as much compensation for approximately the same frontage to be taken from them as is to be taken from the Carrieres, we do not think the argument is persuasive. In the first place, the offer was in the form of free paving for all of the Gianfala frontage, not just the one hundred or so feet it might have taken. We do not know what considerations may have entered into such an offer, but more important, we do not know (and have no way of knowing) that the offer to the Gianfalas was a fair offer from the Town’s standpoint. Moreover, the Town may have had a preference for using the Gianfala property for which it was willing to pay more. In any event, the record is clear that the Carriere property was worth seventy cents a square foot, and that is what the trial court awarded the Carrieres. Therefore, the offer of $1,000 to the Carri-eres where the trial court ultimately judicially determined the property to be worth only $560 would seem to indicate good faith negotiations.

We cannot say the trial judge was clearly wrong in finding the Town negotiated in good faith.

VALUATION OF THE PROPERTY

The second assignment of error is that the trial court erred in its valuation of the property expropriated. The Carrieres themselves produced evidence to show that comparable property in the area had an average value of seventy cents per square foot. However, they contend the frontage property is more valuable than the average value of the entire tract; therefore they should receive more than seventy cents per square foot. We disagree. As stated in State through Department of Highways v. Hoyt, 284 So.2d 763 (La.1973),

“Usually, however, there is no market value for a strip taken for highway or other public-servitude purposes. The landowner would not normally sell at any reasonable price the portion cutting his tract off from the highway or (in the case of other servitudes) bisecting it. There is no willing buyer (except the servitude-seeker) for the strip to be taken, normally useless because of its small-depth and its shape for any other purpose than the public servitude.
“For this reason, in holding that the landowner must receive the actual market value of the front strip taken, the courts have valued it at the price per unit (square foot, front foot, acre, etc.) that a willing seller would pay for it at its highest and best use as if the strip taken were part of a marketable front area of the parent tract sold for such highest and best use. As the dissent here in the intermediate court noted, 272 So.2d [768 at] 776 [La.App. 3 Cir.]:
* * A number of the above cited cases, including, originally, Landry, supra, and most recently, Stegemann, supra, stand for the proposition that once the use tract is defined, i.e., it is determined what portion of the parent tract has a highest and best use as commercial property, the average unit value of the use tract may be employed to ascertain the value of the expropriated portion. In such a situation the expropriated portion would be assigned a value which bears the same proportion to the overall value of the use tract as its size bears to the size of the entire use tract.’ ”

No evidence was presented that the tract could be divided and put to different uses. The lot must be considered as a whole. The average value per square foot of the lot determines the value of the property taken. The trial court did not err in awarding seventy cents per square foot to the Carrieres for the property taken.

DAMAGE TO REMAINING PROPERTY

The third assignment of error is that the trial court erred in finding that the Carrieres would suffer no damage to their remaining property as a result of this taking. The Carrieres argue that the diagonal line at the front of their lot produced by the expropriation causes damage to the property. The front of their house is no longer parallel to the street. They also argue that the view from the driveway will be impaired. We do not believe that having a diagonal property line will cause damage to the property. If any impairment of view should result from moving one corner of the Carriere property back 15.3 feet, this same impairment of view must have existed to begin with. We believe that if farther impairment should result, it should be minimal. The trial court did not err.

ADMISSIBILITY OF EXPERT’S DEPOSITION

The fourth assignment of error is that the court erred in allowing the deposition of The Town’s expert witness, Kirney Thibodeaux, to be introduced and received as evidence after timely objection by counsel for the Carrieres. The ground or basis of the objection was that none of the situations in which such introduction is permitted under LSA-C.C.P. art. 1450 in lieu of the presence of the witness were shown to exist. Counsel stipulated at the time the deposition was taken that it is for all purposes.

The Carrieres filed a motion for new trial, which was granted, limited to the taking of Kirney Thibodeaux’s testimony. The trial court, on further consideration, found that its ruling at the trial that the deposition was admissible, was correct, and that no benefit could be gained by retaking that testimony.

In our opinion Article 1450 of the Code of Civil Procedure governs situations in which there is no stipulation as to the use of a deposition. Here, in taking the deposition of Kirney Thibodeaux, the attorneys stipulated as follows: “As allowed under the Rules of the Louisiana Code of Civil Procedure, it is agreed by all parties that this deposition is being taken for all purposes.” This stipulation is ambiguous. Without the introductory clause of the stipulation the “all purposes” provision would seem to permit use of the deposition at trial, saving, of course, any objections from an evidentiary standpoint which would have been valid had the testimony been taken in court as part of the trial.

Kirney Thibodeaux was called at the instance of the Town of Church Point as its expert real estate appraiser. Therefore, the deposition would hardly have been taken for discovery purposes, and the Carri-eres’ attorney surely must have understood that the Town was taking the deposition for probable use at the trial in lieu of having Mr. Thibodeaux testify at the trial. In view of this we do not feel that the trial court was in error in construing the ambiguity in the stipulation in favor of the Town of Church Point. Cf. McKinley v. Dalton, 355 So.2d 1033 (La.App. 4th Cir. 1978).

In any event, if the depositions were ruled inadmissible, the result would be the same. The Carrieres agree that property in the area was worth seventy cents per square foot and produced evidence of their own purporting to prove that point. Their contention is that the frontage taken is worth more than seventy cents per square foot. We have already dealt with this argument. Under the circumstances the Town proved its case even without the testimony of Kirney Thibodeaux; therefore, if admission of his deposition was error, it was harmless error.

The remaining two assignments of error presuppose that the judgment of the trial court in fixing the value of the property was erroneous. We find no such error and do not reach these assignments of error.

The judgment of the trial court is affirmed. Appellants are assessed with the costs of this appeal.

AFFIRMED.

KING, J., concurs and assigns written reasons.

KING, Judge,

concurring.

I respectfully dissent from the decision of the majority holding that a deposition of a witness is admissible in evidence at the time of a trial on the merits in lieu of the presence of the witness, because of an ambiguous stipulation made at the time of the taking of the deposition, without the requirements of LSA-C.C.P. Art. 1450 being first met. The case cited by the majority as legal authority for this holding, McKinley v. Dalton, 355 So.2d 1033 (La.App. 4th Cir.1978), was one in which a deposition of a witness was admitted at the time of trial because of the unavailability of the witness, not because of an ambiguous stipulation as to its use made at the taking of the deposition. I do not agree with the decision of the majority finding that LSA-C. C.P. Art. 1450 is limited to and only governs situations in which there is no stipulation made at the time of the taking of the deposition as to the use of the deposition.

A need must first be shown, as required by LSA-C.C.P. Art. 1450, at the time of a trial in order for the deposition to be properly admitted into evidence, and then a basis for admitting the deposition in evidence, pursuant to LSA-C.C.P. Art. 1450, must also be shown. Succession of Brum-field, 401 So.2d 1055 (La.App. 3rd Cir. 1981), writ den., 409 So.2d 617 (La.1981); Bankston v. Cooper, 371 So.2d 654 (La. App. 4th Cir.1979).

I agree with the majority, even though the deposition of the appraiser was improperly admitted into evidence, that the result would be the same and for this reason would find that the improper admission pf the appraiser’s deposition, over objection, was only harmless error and that the judgment of this court should be that rendered herein. See LSA-C.C.P. Art. 2164; Na-quin v. Maryland Casualty Company, 311 So.2d 48 (La.App. 3rd Cir.1975), and cases cited therein.

For the foregoing reasons, I concur in the result reached by the majority.


author: KING, Judge. DOMENGEAUX, Judge,

text:
    Ronald J. NAQUIN, Plaintiff-Appellee, v. AIR ENGINEERED SYSTEMS & SERVICES, INC., et al., Defendants-Appellants.
    No. 84-105.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied March 22, 1985.

      Porteus R. Burke, New Iberia, for defendants-appellants.
    Charles N. Wooten, Sr., and Dan Keefe Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   KING, Judge.

The issue presented by this appeal is whether the trial court properly awarded attorney’s fees as a penalty against the defendants who prevented plaintiff-stockholder from exercising his statutory right to inspect corporate records.

The facts of this case are as follow:

On December 20, 1977, defendant, Air Engineered Systems and Services, Inc. (Air Engineered), was incorporated by plaintiff, Ronald Naquin, and defendants, Keith R. Dubois and Dennis Hoffpauir, with each of them owning 100 shares of stock in the corporation. The defendant, Dubois, was President and the defendant, Hoffpauir, was the Secretary-Treasurer of Air Engineered, with plaintiff, Naquin, an employee. The plaintiff was employed mostly as a salesman for the corporation. The business of the corporation consists primarily of the design, sale and installation of air compressors for drilling rigs. Air Engineered tried to design a compressor to fit on a drilling rig, using the least amount of space and weight, computed a cost analysis, and then tried to sell the package to a drilling company. Naquin was employed by the corporation until early in November 1981, when dissatisfaction arose between the three shareholders. Dubois and Hoff-pauir offered to buy Naquin’s interest for $2,000.00 a month for ten years if he would sign a non-competition agreement. Naquin refused the offer and was fired on November 17, 1981. At about this same time, Naquin formed his own business called Air Compression Energy Systems. On November 20, 1981, Naquin made a written request for an appointment to examine the corporate records. This request was referred to Air Engineered’s attorney. Defendants subsequently denied Naquin access to the corporate records unless he agreed to sign an indemnity and hold harmless agreement in favor of Air Engineered claiming Naquin was a competitor. On February 26, 1982, Dubois and Hoffpauir held a special shareholder’s meeting and voted to increase the capital stock of Air engineered by issuing 15,000 new shares valued at $10.00 each. Dubois and Hoff-pauir exercised their preemptive rights, purchasing 5,000 shares each. Naquin refused his option to purchase 5,000 shares because he was uninformed as to the true worth of the corporation and was apparently in the middle of a freezeout. In order to pay for their new shares, Dubois and Hoff-pauir called in personal loans they had given to the corporation. Hoffpauir’s monthly salary was also increased from $3,500.00 to $6,000.00 per month.

Dubois and Hoffpauir testified that they refused to allow Naquin access to the records because they feared he would use the information to gain an unfair advantage over Air Engineered in the sales of air compressors. They complained that Na-quin had hired away one of their former employees and attempted to hire another. They also testified that Naquin secured á contract for his own company from a customer that he had originally solicited for Air Engineered.

In order to gain access to the corporate records, Naquin filed this suit for a writ of mandamus against Air Engineered, Dubois and Hoffpauir, ordering them to allow him to examine the corporate records pursuant to LSA-R.S. 12:103. Naquin also sought attorney’s fees and other expenses. The trial court granted the writ of mandamus ordering Air Engineered to allow Naquin to inspect the corporate records within fifteen days. The trial judge also found that Na-quin was entitled to attorney’s fees, however, he delayed setting the actual amount of the fees until a later date. On appeal, this court affirmed the granting of the mandamus. We noted that the trial judge’s decision to award attorney’s fees was not appealable since it was not a final judgment. Nonetheless, in the interest of judicial economy, this court examined the propriety of awarding attorney’s fees and concluded that the trial judge was correct in deciding to award attorney’s fees. Air Engineered applied for writs to the Louisiana Supreme Court which were denied. Subsequently, Naquin filed in the trial court a motion and order to show cause seeking another order mandating that Air Engineered allow Naquin access to the corporate records and also seeking attorney’s fees in the amount of $8,960.25. The trial judge heard the rule and ordered Air Engineered to allow Naquin to inspect all records of shareholders, board meetings and committee meetings as well as all financial records of the corporation that were prepared prior to February 28, 1982. The court also awarded Naquin $7,179.00 in attorney’s fees as a penalty for Air Engineered’s bad faith in denying Naquin his right to examine the corporate records. Air Engineered appeals the award of attorney’s fees and we affirm.

Air Engineered asserts the following specifications of error: “The trial court erroneously allowed an award of attorney’s fees to plaintiff.” This raises two issues for resolution on appeal. First, was Air Engineered in bad faith in denying Naquin access to the corporate records. Second, if Air Engineered was in bad faith, may attorney’s fees be awarded under LSA-R.S. 12:172(D) as a penalty.

AIR ENGINEERED’S BAD FAITH

In order for Naquin to recover the penalties provided in LSA-R.S. 12:172(D), he must prove that Air Engineered acted in bad faith in denying Naquin’s statutory right to inspect the corporate records. LSA-R.S. 12:103 provides in pertinent that, upon at least five days written demand, any shareholder who is also a business competitor is entitled to inspect the corporate records if he owns 25% of the outstanding shares for a six month period previous to the demand. At the time Na-quin made his written demand (November 17, 1982), he owned 33½% of the outstanding shares of Air Engineered for more than six years. Under the express language of the statute, he was legally entitled to inspect the corporate records at the date of his written demand. Naquin v. Air Engineered System & Services, Inc., et al, supra.

The trial court found that:

“... [t]he defendant is in bad faith in this matter in trying to water down the corporation’s stock and dragging its feet, thwarting the plaintiffs right of inspection.”

We agree with this finding. Not only did the corporation refuse Naquin access to the corporate records but Dubois and Hoff-pauir responded to Naquin’s written demand for inspection of the corporate records by calling a shareholders’ meeting to increase the number of outstanding shares of Air Engineered in an attempt to keep Naquin from viewing the records. As the trial court noted:

“[t]he purpose of issuing the new shares with subscription rights was to put the plaintiff in a position where he would certainly not buy new stock in the corporation and numerically at least own less than the 25 percent shares necessary to inspect the books as a competitor.”

Air Engineered contends that it was justified in refusing to allow Naquin to inspect the corporate records as long as he refused to sign an indemnity agreement protecting Air Engineered from any damages it might suffer as a result of Naquin’s use of the information contained in the corporate records. Dubois and Hoffpauir argue that their fear that Naquin would use the information in an unfair manner, to Air Engineered’s detriment, is substantiated by Naquin’s past conduct. They complain that Naquin has already hired away one of their employees, attempted to hire another, and secured a job' for his own company which he originally solicited for Air Engineered. However, the burden of proving that a shareholder possesses ill motive is on the corporation seeking to deny the shareholder’s right to inspect the records. Naquin v. Air Engineered Systems, Etc., supra; Orlando v. Reliance Homestead Ass’n, 171 La. 1027, 132 So. 777 (La.1931). Air Engineered has failed to meet its burden of proof. The record supports Naquin’s assertion that he wanted to examine the records so that he could determine the actual value of his interest in the corporation. The corporation’s original stock issue was never given a dollar value. Since Dubois and Hoffpauir fired Naquin and were attempting to buy him out at a price that he felt was inadequate to fairly compensate him, it was imperative that Na-quin be allowed to examine the corporate records to determine the actual value of the corporation and its financial condition, to determine the true value of his shares.

Air Engineered’s argument that Naquin was actually seeking to gain an unfair competitive advantage is not supported by the facts of the case. Since Naquin was a major stockholder of Air Engineered and a salesman for six years, he already knew who Air Engineered’s customers were and he could gain no unfair advantage from inspecting the financial records.

ATTORNEY’S FEES UNDER LSA-R.S. 12:172

The issue of whether LSA-R.S. 12:172(D) provides for attorney’s fees has already been resolved by this court in this same case between the same parties. The first time this case was heard before this court, appellant, Air Engineered, argued that the lower court erroneously awarded attorney’s fees to Naquin. After considering Air Engineered’s contentions, this court found that the award of attorney’s fees by the trial court was not a final judgment but, for reasons of judicial economy, passed on the issue of awarding attorney’s fees to Naquin as a penalty for Air Engineered’s bad faith denial of Naquin’s statutory inspection rights.

Due to our previous decision on this issue, we are now constrained by the law of the case doctrine in reviewing the propriety of the trial judge’s award of attorney’s fees. The Louisiana Supreme Court explained the applicability and the purpose of the doctrine as follows:

“The law of the case principle relates to ... the rule that an appellate court will ordinarily not reconsider its own rulings of law on a subsequent appeal in the same case. Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.
“Nevertheless, the law of the case principle is applied merely as a discretionary guide: Argument is barred where there is merely doubt as to the correctness of the former ruling, but not in cases of palpable former error or so mechanically as to accomplish manifest injustice.” Petition of Sewerage & Water Board of New Orleans, 278 So.2d 81, 83 (La.1973).

See also, Bowles & Edens v. H & H Sewer Systems, Inc., 346 So.2d 1283 (La.App.3rd Cir.1977).

After examining the merits of this case, we hold that the previous decision approving the award of attorney’s fees was not palpably erroneous nor did it create manifest injustice. The issue of whether R.S. 12:172(D) provides for attorney’s fees as a penalty was not res nova when this case first appeared before the Third Circuit as our brethren on the Fourth Circuit Court of Appeal had already resolved the issue in favor of allowing attorney’s fees as a penalty for improperly refusing a stockholder his right to inspect corporate records. In Lanaux v. Ace Production, Inc., 396 So.2d 461 (La.App. 4th Cir.1981), the court held that, under R.S. 12:172(D), attorney’s fees may be assessed as a penalty against a defendant, who in bad faith refuses to allow a shareholder to inspect the corporate records. But see, Redemer v. Hollis, 347 So.2d 48, 49 (La.App. 2nd Cir.1977), writ den., 350 So.2d 897 (La.1977), where the court recognized LSA-R.S. 12:172 is penal in nature and is to be strictly construed and all doubts are to be resolved against imposition of a penalty. The clear purpose of R.S. 12:172(D) is to discourage corporations from denying minority shareholders their statutory right to inspect the corporate records. A minority shareholder’s inspection rights are of the utmost importance as they may be his only means of acquiring information about the affairs of the corporation. See Bennett, 2 L.La.L.Rev. 597 (May 1940). As was noted in Naquin v. Air Engineered Systems, Etc., supra, if this statute is interpreted so as to preclude awarding attorney’s fees as a penalty, it would render the statutory rights meaningless as often the most expensive cost, expense and damage to a shareholder for bringing a mandamus action to force a corporation to allow inspection of its records are the attorney’s fees incurred by the shareholder in pursuing the action. If we were to hold that R.S. 12:172(D) only allowed as a penalty the imposition of court costs and expenses of the proceeding as damage actually sustained by the stockholder, the statute would lose its effectiveness as a deterrence to the bad faith denial of shareholder inspection rights to corporate records.

Air Engineered argues that the statute’s provision for “costs and expenses” and “for any other damages actually sustained” by a shareholder seeking to enforce such inspection rights cannot be construed as to allow an award of attorney’s fees. In support of this, Air Engineered cites the well-established principle of law that attorney’s fees are not recoverable unless they are particularly authorized by law or by a contract between the parties. See Williams v. Peacock, 441 So.2d 57 (La.App. 3rd Cir.1983); Gewin v. Willamette Industries, Inc., 406 So.2d 730 (La.App. 3rd Cir. 1981). Further, Air Engineered argues that we must follow the Louisiana Supreme Court’s limited interpretation of the word “expenses” in the case of United Gas Pipeline Co. v. Louisiana Pub. Serv. Com’n, 279 So.2d 195 (La.1973).

In United Gas Pipeline Co., supra, the Louisiana Supreme Court held that the Louisiana Public Service Commission was not entitled to recover attorney’s fees for its expenses in retaining a special counsel in its investigation to determine the proper rates for the United Gas Pipeline Company under a statute, LSA-R.S. 45:1180, which provides that any business investigated by the Louisiana Public Service Commission for the purpose of setting its rates must pay all expenses incurred by the commission in conducting such examinations. The commission argued that the language providing for payment of “all expenses incurred by the commission” entitled it to recover the attorney’s fees it incurred in retaining a Washington, D.C., attorney. The Louisiana Supreme Court disagreed, holding that the import of the statute was to exclude fees of a lawyer for work traditionally performed for the commission by lawyers.

The United Gas Pipeline Co. case and the present case are distinguishable. The Supreme Court, in the United Gas case, held that the import of that statute was to exclude attorney’s fees for traditional legal work. In the present case it is clear that LSA-R.S. 12:172(D) is a penalty statute, unlike the statute construed in the United Gas case, which is intended to punish corporations for their bad faith in denying stockholders their statutory right to inspect corporate records. In light of the fact that attorney’s fees are often the most expensive cost of bringing a mandamus action and the importance of the stockholder’s rights at stake, attorney’s fees should be allowable as a penalty under R.S. 12:172(D).

Finally, Air Engineered argues that, since Naquin entered into a contingency fee contract with his attorney, that the attorney’s fees have not actually been incurred by Naquin and the court is bound by this agreement in assessing Naquin’s attorney’s fees. We disagree. In awarding punitive attorney’s fees, the court is not bound by any agreements between the parties but on the court’s conclusion as to the services the attorneys performed for Na-quin. The amount of attorney’s fees rests largely within the discretion of the trier of fact. Factors to consider include the amount involved, the skill of the attorney, and the amount of work necessarily undertaken by the attorney. Dowden v. Commonwealth Life Ins. Co., 407 So.2d 1355 (La.App. 3rd Cir.1981); LSA-R.S. 37, Chapter 4 Addendum DR 2-106.

The trial judge awarded Naquin $7,179.00 in attorney’s fees. The court arrived at this amount by multiplying $100.00 (hourly rate for senior attorney’s time) times 71.25 (amount of hours spent on the case), and adding $54.00 for travel expenses. At the time the trial judge assessed the attorney’s fees, this case had been twice before the district court, once before our court, and once before the Louisiana Supreme Court where Air Engineered’s application for writs was denied. After a close review of the entire record, we cannot say the trial judge abused his discretion in awarding $7,179.00 in attorney’s fees.

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are to be borne by defendant-appellant.

AFFIRMED.

DOMENGEAUX, J., concurs and assigns reasons.

DOMENGEAUX, Judge,

concurring.

As a general rule attorney’s fees are not allowable in Louisiana except if authorized by law or by agreement. Hence, I have some reservations about the propriety of assessing attorney’s fees in this case. However, I feel clearly bound to agree to attorney’s fees in this instance due to the law of the case doctrine and this Court’s previous ruling in this case at 423 So.2d 713 (La.App. 3rd Cir.1982), writ denied, 429 So.2d 156 (La.1983).

      . For a more detailed summary of the facts, see Naquin v. Air Engineered Systems & Services, Inc., et al, 423 So.2d 713 (La.App. 3rd Cir.1982), writs den., 429 So.2d 156 (La.1983).

      . Naquin sought $8,960.25 in attorney's fees based on an hourly rate of $125.00 for senior attorney time. Although the trial judge did not feel $125.00 per hour was excessive, he reduced the hourly rate to $100.00 an hour since it is a penalty against Air Engineered and Naquin's attorney may eventually recover more from Na-quin.


author: DOMENGEAUX, Judge.

text:
    In the Matter of the COMMITMENT OF VA.

    No. 84-112.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Paul Young, Pineville, for defendant-appellant.
    Vivian L. Whittle, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.

       For obvious reasons, the full name of the respondent is reduced to initials.

   DOMENGEAUX, Judge.

Respondent-appellant, V A, was admitted to the Central Louisiana State Hospital on September 1, 1982, in compliance with a Physician’s Emergency Certificate.

A hearing was held on September 27, 1982, pursuant to a petition to judicially commit the appellant to Central Louisiana State Hospital for treatment of her mental condition. A judgment ordering the appellant committed was signed following the hearing.

Shortly thereafter, a transfer order was signed by the committing court transferring Ms. A from Central Louisiana State Hospital to the Lakeland Nursing Home. The transfer order stated that Ms. A had reached the maximum benefits available at Central Louisiana State Hospital, but, because she was still unable to function and live alone she was to be transferred to and maintained in an appropriate facility.

On October 31, 1983, pursuant to La. R.S. 28:56(B), an annual review hearing was held in order to determine whether this patient required continued judicial commitment.

The district judge determined that this patient was mentally ill which caused her to be gravely disabled and ordered her commitment affirmed and recommitted her to Lakeland Nursing Home.

In order for a district court to commit a person to a facility for the care and treatment of a mental disease that court must find by “... clear and convincing evidence that the respondent is dangerous to self and others or is gravely disabled, as a result of substance abuse or mental illness ...” La. R.S. 28:55E.

Should the court conclude that commitment is necessary it shall order the respondent committed to a “... designated treatment facility which is medically suitable and least restrictive of his liberty.” La. R.S. 28:55E.

Ms. A contends that the district court' was in error for recommitting her to the Lakeland Nursing Home. The appellant argues that at the annual review hearing on October 31, 1983, the petitioner did not prove by clear and convincing evidence that the patient was mentally ill and/or gravely disabled. Alternatively, appellant contends that Lakeland Nursing Home was not the least restrictive medically suitable facility for her care.

Whether a person is mentally ill and/or gravely disabled, or whether a particular facility is the least restrictive are factual determinations to be made by the trial court. Before an appellate court can disturb the factual determinations of the trial court, it must be determined that the finding of fact is manifestly erroneous and has no reasonable basis. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The record reveals that V A is a 51 year old female with a long history of mental illness. She has been admitted to the Central Louisiana State Hospital 14 times since the age of 16.

Doctor Charles L. Saint, a psychiatrist, testified at the October 31, 1983 review hearing. He testified that Ms. A “was not suffering from any present mental illness” but rather that she was in a state of “remission”. A Physician’s Report to the Court prepared by Doctor Saint was filed into the record. In that report Doctor Saint stated that the patient’s mental illness was "... under control at present only on the basis of taking adequate and proper medication” and that "... no psychotic symptoms are present.”

Webster’s Third New International Dictionary defines remission as “a temporary abatement of the symptoms of a disease”. Taking the record as a whole, we understand Doctor Saint’s testimony and the Physician’s Report to the Court to conclude that Ms. A is mentally ill, however, due to properly administered medication none of the symptoms of her disease are noticeable, and that the symptoms of her mental illness are only temporarily abated and will resurface without proper care and medication.

Doctor Saint further testified that should Ms. A’s symptoms resurface it would make her gravely disabled and that Lakeland Nursing Home is the least restrictive facility available in which Ms. A could receive the proper treatment to keep the symptoms of her mental illness from recurring.

The only witness testifying for the respondent was Ms. A. She could only testify that if released from commitment that she would live with her family and take her medication. However, according to Doctor Saint, Ms. A’s medical history refutes her testimony that she would take her medication responsibly. Doctor Saint testified that Ms. A has a history of refusing medication and overtaking her medication when not in the custody of a mental health facility-

We hold that the district court’s factual determinations that Ms. A was mentally ill and gravely disabled and that Lakeland Nursing Home was the least restrictive facility for her internment were not manifestly erroneous.

Ms. A’s history of mental illness, her present state of remission, and inability to properly medicate herself lead us to the conclusion that if she were not recommitted to the custody of Lakeland Nursing Home that she would have a recurrence of the symptoms of her psychosis.

We conclude that the testimony and evidence is clear and convincing that Ms. A is mentally ill in view of the fact that her disease has not been cured but is only in remission. She is still presently mentally ill. There is only an abatement of the symptoms of her disease.

We further determine that the evidence is clear and convincing that Ms. A is gravely disabled in light of the fact that she would have a recurrence of the symptoms of her psychosis if she did not take her medication. Ms. A has a history of irresponsibility when she is accountable for her own medication; this results in her reverting from a state of remission to a psychotic state. Ms. A’s past record of unreliable self-care leads us to conclude that she is clearly unable to care for herself and provide herself with essential medical care. We find her to be gravely disabled.

Furthermore, we find that Lakeland Nursing Home is the least restrictive facility for Ms. A’s care. Doctor Saint testified as such. Ms. A testified that she would move in with her children if released. However, none of the children testified that they would see to it that Ms. A would be administered medication either as an outpatient or by the children themselves.

For the above and foregoing reasons the decision of the district court is affirmed. All costs on appeal to be assessed against respondent.

AFFIRMED.


author: LABORDE, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Harold Ray WISDOM, Defendant-Appellant.
    No. CR84-226.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    William D. Dyess, Many, for defendant-appellant.
    Asa Skinner, Asst. Dist. Atty., Leesville, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant, Harold Ray Wisdom, was charged with simple burglary in violation of LSA-R.S. 14:62. After pleading guilty, he was sentenced on January 27, 1984, to serve six (6) years at hard labor. Defendant appeals, alleging that his sentence is excessive and that the trial judge failed to consider the sentencing guidelines pursuant to LSA-C.Cr.P. article 894.1. We affirm.

FACTS

On August 4, 1983, defendant was charged by bill of information with simple burglary in violation of LSA-R.S. 14:62 and felony theft in violation of LSA-R.S. 14:67. Pursuant to a plea bargain with the District Attorney’s office, defendant pleaded guilty to the simple burglary charge in return for a dismissal of the felony theft charge.

The charges arose out of defendant’s involvement with a co-defendant, Anthony Overly. On April 12,1983, the two of them entered the home of Charles Fulda, III, and removed nearly all of the furniture, objects, and valuables therein. Defendant’s principal involvement in the offenses was to drive the truck used to transport the stolen items.

On November 9, 1983, defendant pleaded guilty to simple burglary and on January 27, 1984, he was sentenced to six (6) years at hard labor.

ISSUE

Defendant raises three (3) assignments of error on appeal contending that the trial judge failed to comply with the sentencing guidelines under LSA-C.Cr.P. article 894.1, and that his sentence is unconstitutionally excessive.

REVIEW OF SENTENCE AND COMPLIANCE WITH LSA-C.Cr.P. ART. 894.1

The penalty for simple burglary provides for a fine of not more than two thousand dollars ($2,000), imprisonment with or without hard labor for not more than twelve (12) years, or both. Defendant contends that imposition of a six (6) year sentence in this instance is unconstitutionally excessive. Defendant further contends that the trial judge failed to state for the record the considerations and factual basis for the sentence imposed.

In sentence review cases, we first consider whether the trial court has complied with the requirements of article 894.1. Assuming that it has complied, we then determine the question of excessiveness on the merits in light of the circumstances alleged on appeal. If the trial court has complied with article 894.1, as in this case we find that it has, we next consider whether the defendant has shown his sentence to be an apparently severe or excessive one. If it is shown to be excessive, the court will remand for resentencing. If it is not, we will affirm. State v. Vizena, 454 So.2d 1291 (La.App. 3rd Cir.1984).

In this instance, we find that the trial judge adequately stated for the record the considerations and factual basis taken into account for imposing sentence on the defendant. LSA-C.Cr.P. 894.1(C). We also find that defendant has failed to show that his sentence is excessive or apparently severe in relation to him and the actual offense committed. Further, we do not find from our independent research that the defendant’s sentence is an excessive one under the circumstances. See State v. Vallare, 430 So.2d 1336 (La.App.3d Cir. 1983); State v. Frank, 310 So.2d 110 (La. 1975).

Accordingly, we hold that defendant’s sentence must be upheld.

For the above and foregoing reasons, the defendant’s sentence is affirmed.

AFFIRMED.


author: STOKER, Judge. DOMENGEAUX, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Harold Ray WISDOM, Defendant-Appellant.
    No. CR84-604.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      William D. Dyess, Many, for defendant-appellant.
    James L. Davis, Dist. Atty., Many, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and KING, JJ.
   STOKER, Judge.

Defendant, Harold Ray Wisdom, was charged with three counts of simple burglary. He entered a plea of guilty to one count of simple burglary and was sentenced to a term of six years in the custody of the Department of Corrections, said sentence to run consecutively to any existing sentence. He appeals, arguing that the trial court did not comply with the requirements of LSA-C.Cr.P. art. 894.1, and that the sentence imposed is excessive. We affirm.

The reasons for sentence given by the trial judge are as follows:

“This 27 year old Defendant has a criminal record, as an adult, extending back to 1970. Prior to that he had a juvenile record.
“His adult record includes four prior felony offenses, so the Defendant is not eligible for a suspended, or probated sentence, and the Court will not review the provisions of Art. 894.1 of the Louisiana Code of Criminal Procedure as it would be pointless.”

These brief remarks do not comply with the requirement of Article 894.1 that the considerations taken into account in sentencing and the factual basis for the sentence be stated for the record. We also note that the trial judge’s comment that the defendant's adult record extends back to 1970 is incorrect. The defendant’s juvenile record was established in 1970. His adult criminal record extends back to 1975. Even though the trial judge did not comply with Article 894.1, such noncompliance does not necessarily result in reversal of the sentence. As the court held in State v. Jones, 381 So.2d 416 (La.1980):

“... A sentence may be vacated and a case remanded for re-sentencing, however, when the reasons for an apparently severe sentence in relation to the particular offender and the actual offense committed do not appear in the record.”

After reviewing the record and the pre-sentence investigation report submitted for an in camera review by this court, we find that the sentence imposed on this defendant is not apparently severe. The one count of simple burglary to which the defendant pleaded guilty was reduced by agreement from three counts of simple burglary. The trial court was correct in noting that defendant’s prior criminal record makes him ineligible for probation or a suspended sentence. The presentence investigation also indicates the defendant has had an unstable homelife and has no dependents. The presentence investigation further indicates the defendant was gainfully employed at the time of these offenses, and thus had no financial need justifying the burglaries. None of these factors which could possibly have mitigated against the sentence were presented to the trial court by defendant at the sentencing hearing.

Defendant also asserts that the sentence was improperly ordered to be served consecutively to another six-year sentence received by him in Vernon Parish on a charge of simple burglary. Defendant argues that the burglary charges in Vernon and Sabine Parishes were part of the same course of conduct, and the sentence for these offenses should be served concurrently. Although it appears that the offenses in the two parishes were committed within a short period of time, there is no evidence that they were part of a common scheme. In view of the charges against the defendant which were dismissed as a result of the plea agreement, the sentence imposed in this case which was ordered to be served consecutively to any other sentences is not apparently severe nor excessive.

For the above reasons, the sentence of the defendant is affirmed.

AFFIRMED.

DOMENGEAUX, Judge,

concurring.

For the reasons which I have advanced many times heretofore — we should not be made to review sentences for excessiveness unless they go beyond the statutory limit.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. John A. SMITH, Defendant-Appellant.
    No. CR84-246.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.
    Writ Denied April 12,1985.

      David L. Kimball, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Gemine Mailhes, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before GUIDRY, FORET and LA-BORDE, JJ.
   LABORDE, Judge.

Defendant, John A. Smith, was charged by a bill of information with distribution of a controlled dangerous substance, namely, Pentazocine, in violation of LSA-R.S. 40:967 A(l). Defendant entered a plea of not guilty, and was tried before a twelve member jury. He was found guilty by an 11-1 vote. On January 24, 1984, the court sentenced the defendant to serve four (4) years imprisonment without benefit of probation or parole. Defendant appeals, urging five (5) assignments of error. We affirm.

FACTS

On May 12, 1983, at approximately 5:30 p.m., Deputy John Arceneaux, an undercover agent for the Narcotics Division of the Calcasieu Parish Sheriff’s Office, met with his investigating officer, Deputy Larry Miller, who gave him $100 in narcotics money and told him to try and make some narcotics buys in the North Lake Charles area. During that night, Deputy Arceneaux made three buys. One of these buys involved a purchase from the defendant of a set of pills, known in street language as “T’s and Blue’s.” One of these pills contained Pentazocine, a controlled dangerous substance under Louisiana law. LSA-R.S. 40:964 Schedule II D.(2). Deputy Arcen-eaux paid the defendant $20 out of the $100 narcotics money he was given. Deputy Arceneaux then turned the pills over to Deputy Miller.

Defendant was later charged, tried and convicted. Defendant presents five (5) assignments of error for our consideration on appeal.

ASSIGNMENT # 1: FAILURE TO BRIEF ON APPEAL

The defendant contends that the trial court erred when it denied the defendant’s motion for a mistrial based upon improper statements made by the Assistant District Attorney during the opening statement. The defendant did not address this assignment of error in his brief. Assignments of error which have not been briefed are deemed abandoned and not considered by us on appeal. State v. Dewey, 408 So.2d 1255, 1256 n. 1, (La.1982); State v. Crawford, 441 So.2d 813, 814 n. 1, (La.App. 3rd Cir.1983).

ASSIGNMENT # 2: EVIDENCE AND THE CHAIN OF CUSTODY

The defendant contends that the trial court erred in allowing the state to introduce into evidence two pills allegedly sold by the defendant, claiming that a proper chain of custody had not been established.

The Louisiana Supreme Court in State v. Godeaux, 378 So.2d 941 (La.1980), in examining the requirements set forth for the admissibility of demonstrative evidence, stated:

“To admit demonstrative evidence at trial the law requires that the object be identified. The identification can be visual, that is by testimony at trial that the object is related to the case. It can also be identified by chain of custody, that is by establishing the custody of the object from the time it was seized to the time it was offered into evidence. State v. Past-er, 373 So.2d 170 (La.1979); State v. Drew, 360 So.2d 500 (La.1978). A continuous chain of custody is not essential to enable the state to introduce physical evidence as long as the evidence as a whole establishes that it is more probable than not that the object introduced was the same as the object originally seized by the officer. State v. Guzman, 362 So.2d 744 (La.1978).”

378 So.2d at 944. See also State v. Davis, 411 So.2d 434, 438 (La.1982).

In the present case, the state established a proper chain of custody of the evidence. Deputy John Patrick Arceneaux testified that on May 12, 1983, he purchased two pills from the defendant. One of these pills was Pentazocine, which is listed as a controlled dangerous substance. LSA-R.S. 40:964 Schedule II D.(2). Arcen-eaux then turned this evidence over to his superior officer, Detective Larry Miller. Miller in turn gave this evidence to Sandra Dailey Havens, Evidence Custodian for the Calcasieu Parish Sheriffs Department, who put a number and her initials (36581 S.D.) on it. The evidence was then checked out by Francis Touchet, a drug analyst for the Southwest Louisiana Crime Lab, on May 27, 1983, and returned on June 7, 1983. The evidence was checked out again by Mr. Touchet on the morning of the trial for use at the trial.

Defendant argues that the chain is incomplete because Mr. Touchet claims he checked out the evidence on May 16, 1983, but in actuality he did not check it out until May 27, 1983. However, the record indicates that Mr. Touchet did not remember the exact date it was checked out from Deputy Havens to himself. This insignificant detail does not appear to break the continuous chain of custody of the evidence as presented by the Sheriffs office.

In following Davis, it appears to be more probable than not that the object introduced into evidence was the same object seized by Agent Arceneaux from the defendant. Furthermore, any defect in the chain of custody goes to the weight of the evidence, rather than its admissibility. State v. Taylor, 422 So.2d 109, 115 (La. 1982). Consequently, the envelope containing the pills was properly admitted into evidence. This assignment of error is without merit.

ASSIGNMENTS # 3 AND 4: ACQUITTAL AND NEW TRIAL

The defendant contends that the trial court erred in denying his motion for a new trial and motion for a post verdict judgment of acquittal in that the evidence was insufficient to sustain the defendant’s conviction.

The standard of review as to the sufficiency of the evidence is whether viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt proof of the essential elements of the crime. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Captville, 448 So.2d 676, 678 (La.1984).

In the present case, the defendant was convicted of the crime of distribution of a controlled dangerous substance classified in Schedule II of LSA-R.S. 40:964, namely, Pentazocine. This is a violation of LSA-R.S. 40:967 A(l), which states in part:

“A. Manufacture; distribution. Except as authorized by this part, it shall be unlawful for any person knowingly or intentionally:
(1) To produce, manufacture, distribute, or dispense or possess with intent to produce, manufacture, distribute, or dispense, a controlled dangerous substance classified in Schedule II;”

During the trial, Deputy Arceneaux of the Calcasieu Parish Sheriff’s Department testified that on May 12, 1983, he was working as an undercover agent for the Narcotics Division. About 5:40 in the afternoon on May 13, 1983, Deputy Larry Miller, who first searched him, then gave him $100 in narcotics money and informed him that he wanted him to work in the North Lake Charles area. During that night, Agent Arceneaux had made three narcotics buys. One of these buys involved a purchase from the defendant of a set of pills, known in street language as “T’s and Blue’s.” One of these pills contained Pen-tazocine, a controlled dangerous substance under Louisiana law. LSA-R.S. 40:964 Schedule II D.(2). According to the testimony of Deputy Arceneaux, at approximately 11:30 in the evening of May 12, 1983, he met the defendant outside the Am-Vet Club on Enterprise Boulevard. The defendant had just come out of the Am-Vet, and upon seeing Deputy Arcen-eaux asked him if he was just standing there or if he needed something. Deputy Arceneaux asked him what he had in mind. The defendant replied that he had some “sets” (Pentazocine) and he knew where he could get some marijuana. Deputy Arcen-eaux then testified that he purchased one set of “T’s and Blue’s” which consists of one pill containing an antihistamine and one pill containing Pentazocine, a controlled dangerous substance. The meeting between the defendant and Deputy Arcen-eaux lasted approximately 40 minutes while the two men rode around in Arcen-eaux’s car. During this meeting, Deputy Arceneaux paid the defendant $20 out of the $100 narcotics money he was given. Deputy Arceneaux recalled that the defendant was wearing a beigish-white colored suit and a straw cowboy hat. After Deputy Arceneaux returned the defendant to Enterprise Boulevard, he called Deputy Miller, his investigating officer, from a pay phone and asked Miller to meet him. Deputy Arceneaux then turned the pills over to Deputy Miller.

Viewing this evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant sold Deputy Arceneaux a set of pills which contain Pentazocine and therefore committed the crime of distribution of a controlled dangerous substance. This assignment of error is without merit.

ASSIGNMENT # 5:

EXCESSIVE SENTENCE

Defendant finally contends that the trial court’s imposition of the mandatory and minimum four (4) year sentence is excessive in this instance. LSA-R.S. 40:967 provides that an offender under the statute shall receive a sentence of not less than four (4) years, nor more than ten (10) years without benefit of parole, probation, or suspension of sentence. Additionally, the trial judge may impose a fine of not more than fifteen thousand (15,000) dollars.

The record shows that defendant is fifty years old and has no prior criminal record. He was convicted of selling one “set,” that is, two pills.

Defendant contends that the mandatory minimum sentencing requirement under LSA-R.S. 40:967 B, which denies the trial court’s discretion to impose a sentence with benefit of parole, probation or suspension of sentence, is unconstitutional and in violation of LSA-Const. Art. I, sec. 20 (1974). We disagree.

The Louisiana Legislature has determined that distribution of Pentazocine presents a high potential of danger to society. Deterrence may only be accomplished by stringent and adequate penalties for offenders. The Supreme Court in State v. Bonanno, 384 So.2d 355, 358 (La.1980) stated with regard to the penal provision for distribution of cocaine:

“We are not here to determine whether the Legislature acted wisely in that respect or not, only whether it acted constitutionally. We can not say that a penalty range from five to thirty years for distribution of cocaine is so disproportionate to the crime as to shock our sense of justice. Therefore, we do not find the penalty range of the statute to be unconstitutionally excessive per se.”

In this instance, we do not find that the penalty range from four (4) to ten (10) years for distribution of Pentazocine is so disproportionate to the crime as to shock our sense of justice. Moreover, the Supreme Court in State v. Brown, 322 So.2d 211, 221 (La.1975) has upheld as constitutional the penal provisions for armed robbery, LSA-R.S. 14:64, which includes a sentence without benefit of parole, probation or suspension of sentence.

Therefore, we do not find the penalty range or the exclusion of the trial court’s discretion to allow for probation or suspension of the sentence to be unconstitutionally excessive.

For the above and foregoing reasons, the defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: KNOLL, Judge.

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Paul Dale ROBERTS, Jr., Defendant-Appellant.
    No. CR84-442.
    Court of Appeal of Louisiana, Third Circuit.
    Jan. 30, 1985.

      James E. Burks, Gray, Clemons & Spruell, Lake Charles, for defendant-appellant.
    Leonard Knapp, Jr., Dist. Atty., Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for plaintiff-appellee.
    Before DOUCET, YELVERTON and KNOLL, JJ.
   KNOLL, Judge.

Defendant, Paul Dale Roberts, Jr., was convicted in a trial by jury of aggravated battery, a violation of LSA-R.S. 14:34. Defendant was sentenced to serve ten years at hard labor, the maximum penalty provided for aggravated battery. Defendant relies upon two assignments of error to set aside his sentence: (1) the trial judge erred in not following the guidelines as established by Article 894.1 of the Code of Criminal Procedure; and (2) the trial court erred by imposing the maximum sentence of ten years at hard labor, which sentence is excessive and amounts to cruel and unusual punishment. We affirm, finding that the record clearly illuminates and supports the sentencing choice.

In the early morning of January 30, 1983, defendant and David Gaspard, the victim, began fighting at Oscar’s Lounge in downtown Lake Charles, but were ejected before the altercation became too involved. Defendant was escorted out of the front door and the victim through the rear exit. The defendant went to his automobile, obtained a baseball bat, and sought out Gas-pard. Defendant then repeatedly struck Gaspard with the baseball bat, leaving him lying semiconscious on the sidewalk. Officers of the Lake Charles Police Department on routine patrol later found Gaspard in the same condition and location where defendant left him. Gaspard was hospitalized and remained in a coma for over two weeks and has no recollection of the beating. The medical evidence shows that Gas-pard suffered a fractured skull, broken left arm, broken fingers on his right hand, and multiple fractures of the ribs and several vertebrae.

LSA-C.CR.P. ART. 894.1 AND EXCESSIVENESS

Wide discretion is given the sentencing judge in imposing a sentence within the statutory limits. State v. Square, 433 So.2d 104 (La.1983). A sentence within the statutory limits should not be set aside as excessive in the absence of a manifest abuse of the sentencing judge’s discretion. State v. Griffin, 455 So.2d 681 (La.App. 2nd Cir.1984). A sentence is constitutionally excessive if it is grossly out of proportion to the severity of the offense or nothing more than a needless and purposeless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980).

LSA-C.Cr.P. Art. 894.1 provides criteria for consideration in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979). Even though the sentencing court does not need to articulate every aggravating and mitigating circumstance contained in C.Cr.P. Art. 894.1, the record must reflect that adequate consideration was given to these codal guidelines in particularizing defendant’s sentence. State v. Smith, 433 So.2d 688 (La.1983). The sentencing court’s failure to adequately comply with C.Cr.P. Art. 894.1 does not necessitate the invalidation of a sentence or warrant a remand for resentencing if the record clearly illuminates and supports the sentencing choice. State v. Smith, 430 So.2d 31 (La.1983).

In imposing sentence, the sentencing court explained:

“The facts disclosed in trial indicate that the Defendant sustained a minor battery at the hands of what was later his victim, and that this so infuriated the Defendant that he went to his automobile and got a baseball bat, searched out the other party, whom he located about a block from where the initial minor incident had occurred, and proceeded to beat him with that baseball bat to the point of death. In my opinion, the Defendant could have as easily been convicted of attempted murder in this case, as he was convicted of aggravated battery. And it’s only by the fortuitous coincident of a city police officer happening by the scene where the victim was left on the ground by the Defendant, shortly thereafter, which helped to save his life, otherwise, the Defendant would likely have been tried for murder in the second degree. This is a crime of such violence and brutality the the [sic] Court cannot consider a probated sentence. I can imagine no factual situation which would fit under the provisions of the aggravated battery statute in a more extreme manner. The legislature has provided a maximum sentence of ten years imprisonment at hard labor for this offense, and I will impose the maximum sentence in this case based on the facts.

During the sentencing hearing there was no indication that the sentencing court considered mitigating circumstances as required by Art. 894.1(B). However, after a careful review of the record, we find that the record clearly illuminates and supports the sentencing choice. State v. Jett, 419 So.2d 844 (La.1982).

Defendant’s aggravated battery upon the victim was unprovoked. Defendant, after being thrown out of the bar, immediately went to his car, armed himself with a baseball bat, and went looking for Gaspard. Upon finding Gaspard, defendant repeatedly struck him although Gaspard made no attempt to ward off the blows. Defendant’s criminal conduct was violent and unjustified. The conduct of the victim did not induce the commission of the crime. Although the psychiatric testimony failed to establish defendant’s inability to distinguish right from wrong, it clearly established that defendant’s criminal conduct was likely to recur, with little provocation needed. These considerations, coupled with the extreme brutality and the senseless nature of the crime, clearly outweigh defendant’s lack of prior felony convictions, and fully supports the sentencing choice by the sentencing court. '

For the foregoing reasons the sentence of the defendant, Paul Dale Roberts, Jr. is affirmed.

AFFIRMED.