author: SAVOIE, Judge.

text:
    BIG TRAIN CONSTRUCTION COMPANY, INC. v. The PARISH OF ST. TAMMANY, et al.
    No. 83 CA 0350.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Waldon Hingle, Slidell, for plaintiff, ap-pellee.
    Leo Hemelt, II, Covington, for defendants, appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Parish of St. Tammany, appeals the trial court’s issuance of a Writ of Mandamus, compelling it to issue a building permit to plaintiff, Big Train Construction Company, Inc.

On June 23, 1982, plaintiff, Big Train, made application to the St. Tammany Parish Planning Advisory Board for a building permit. Such permit was for the construction of a deli and game room in a rural area (i.e., zoned R-rural) for the parish. At the hearing on such application, numerous local residents objected to the issuance of the permit. Their objections were based upon various grounds. After discussion, the Advisory Board ruled that the permit would not be issued due to plaintiffs failure to meet the Comprehensive Zoning Ordinance of St. Tammany Parish, Ordinance No. 523.

Thereafter, plaintiff appealed the Advisory Board’s decision to the St. Tammany Parish Council. The Council, after consideration of the matter, affirmed the Advisory Board’s decision, finding that plaintiff failed to meet Section 2.1(1) and (2)(A) of the ordinance.

Plaintiff subsequently filed suit, asking that a Writ of Mandamus be issued, compelling defendant to grant to plaintiff a building permit. After a hearing, the trial court found, as a matter of fact, that the plaintiff had met all of the zoning criteria for issuance of a building permit. Further, it found that defendant had failed to prove that plaintiff had not met all of the zoning criteria. Accordingly, it ordered that a Writ of Mandamus be issued, compelling defendant to grant the building permit. It is from this judgment that defendant appeals.

While defendant has assigned three assignments of error, in essence, it asserts the trial court erred in (1) finding that plaintiff had met all of the requisite zoning criteria and (2) allowing a Writ of Mandamus to be used as the procedural vehicle to compel the building permit to be issued in this instance. For reasons hereinafter stated, the issue of whether plaintiff has met the requisite zoning criteria is pretermitted.

A Writ of Mandamus is an extraordinary remedy set forth in the Code of Civil Procedure. It may be directed to a public officer to compel performance of a ministerial duty which is required by law. L.S. A.-C.C.P. art. 3863. Our jurisprudence is clear that such writ may not issue to compel performance of an act which contains any element of discretion, however slight. Rather, the act must be purely ministerial. Caldwell Country Club v. Department of Transportation and Development, 438 So.2d 723 (La.App. 2d Cir.1983); and see Clarco Pipeline Company v. Parish of East Baton Rouge, 383 So.2d 1296 (La.App. 1st Cir.1980); and Bye v. Giarrusso, 292 So.2d 742 (La.App. 4th Cir.1974).

In the instant matter, plaintiff attempts to compel the defendant to issue a building permit through a Writ of Mandamus by attacking the Advisory Board’s and Parish Council’s discretionary decision. We find that their decisions to deny plaintiff a building permit contain a large element of discretion and the remedy of Mandamus is clearly inappropriate. Plaintiffs appropriate remedy is an ordinary proceeding appealing the factual determination of the Advisory Board and the Parish Council.

Having found the remedy of Mandamus inapplicable in this instance, we need not address whether the trial court erred in concluding that plaintiff had met all of the zoning criteria.

For the above and foregoing reasons, judgment of the trial court is reversed. Plaintiff is to pay all costs.

REVERSED.

      . Section 2.1 provides in pertinent part:
      "(1) Any use which does not create a nuisance by way of objectionable noise, glare, odor, or air pollution. Junkyards shall be permitted only where authorized by the St. Tammany Parish Council. This proposed use will require a public hearing before permit issuance as well as the adequate completion of the parish environmental assessment data form (EAD) prior to said hearing. All local, state and federal regulations as regard environmental pollution are to be complied with.
      “(2) All commercial, industrial, religious, institutional uses and multifamily or condominium uses of three (3) units or more, require review and approval by the planning advisory board before issuance of a permit. Applicants for such permits must submit to the planning advisory board plans meeting the following criteria:
      (a) Use does not create a hazard to health and safety of the adjacent residents.”


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Raleigh DARDAR, et al. v. TEXOMA CONTRACTORS, INC., et al.
    No. 83 CA 0351.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Thomas E. Dunn, and Kenneth W. Manuel, of Ungar, Jacobs, Manuel & Kain, New Orleans, for plaintiffs-appellants Raleigh Dardar and Evelyn Dardar.
    Lloyd T. Bourgeois, and Christopher Riv-iere, of Porteous, Hainkel, Johnson & Sar-py, and John L. Lanier, of Pugh, Lanier & Pugh, Thibodaux, for defendants-appellees Texoma Contractors, Inc., Robert T. Schertler and Allstate Ins. Co.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

This is an appeal by the plaintiffs, Raleigh and Evelyn Dardar, from a judgment notwithstanding the jury verdict, in their favor, awarding damages from personal injuries in an amount allegedly inadequate. We reverse and remand.

On or about July 27, 1979, Evelyn Dar-dar was operating an automobile in a southerly direction on Louisiana Highway 308 in the Parish of Lafourche, when she was rear-ended by a vehicle owned by defendant-appellee, Texoma Contractors, Inc., and operated by defendant-appellee, Robert T. Schertler. At this time, Allstate Insurance Company had in effect a policy of liability insurance covering the automobile.

The plaintiffs filed a suit for personal injuries and damages against the defendants. A jury trial was fixed. Before the trial on the merits, an agreement was reached whereby the defendants stipulated to liability and the plaintiffs agreed to limit their recovery to the insurance policy limits. The trial extended over a three day period, at the conclusion of which the jury returned a verdict in favor of the defendants. During his instructions to the jury, the judge gave the jury a verdict form on the liability of the defendant as well as a verdict form in favor of plaintiff.

The plaintiffs filed a motion for a new trial and/or motion for judgment notwithstanding the verdict. The plaintiffs argued that inasmuch as the defendants had stipulated liability, the jury’s verdict of no liability against the defendants was clearly wrong and inconsistent with the evidence. The motion came on for hearing, and the trial judge granted a judgment notwithstanding the verdict. Judge Knobloch awarded $2,926.51 to the plaintiff, Raleigh Dardar, for medical expenses and loss of wages to the community, $12,500.00 to the plaintiff, Evelyn Dardar, for her personal injuries, together with expert witness fees to be taxed as costs.

The judgment notwithstanding the verdict was rendered on December 15, 1982, and plaintiffs were granted suspensive and devolutive appeals from the judgment.

On January 28, 1983, the trial court signed an order allowing Allstate, Texoma and Schertler to deposit in the registry of the court the amount of the awards, plus legal interest, and all costs.

On Appeal, it is the plaintiffs’ primary contention that they were effectively denied a right to a jury trial as a result of the jury’s failure to consider the only issue presented to it, i.e., the issue of quantum.

Pursuant to LSA-C.C.P. arts. 1731-1732, litigants have a right to trial by jury; this right is a basic right, which should be zealously protected. Ruston State Bank & Trust Company v. Theodus, 367 So.2d 899 (La.App. 2nd Cir.1979).

Our review of the entire record, particularly the jury charges and the verdict forms used in connection therewith, convinces us that the trial judge’s submission to the jury of the verdict form on the issue of the liability of the defendants, under the circumstances of this case, constituted reversible error. The question of the defendants’ liability had been pretermitted by the stipulation of the parties. The question of liability was not before the jury, yet the verdict shows that only the liability of the defendants was considered by the jury. Finding no liability, the jury did not reach the question of quantum. The verdict is erroneous and contrary to the evidence presented to the jury.

The jury's verdict was based on an erroneous application of the verdict forms, and the trial court’s decision was based on an erroneous interpretation and application of the law, rather than a valid exercise of its discretion; such incorrect decision is not entitled to deference. See Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La.1983). We find that the plaintiffs were deprived of a meaningful jury trial on the issue of quantum, which should have been the only issue presented to the jury for consideration, after correct jury instructions and with a proper verdict form.

For the trial court to fix damages and for us either to agree or disagree on its fixing of damages is to deprive the plaintiffs of their right to trial by jury. Hence, we will not consider the issue of quantum at this time, but will remand for a new trial by jury, solely on the question of damages. Liability of the defendants has been stipulated. The issue of. whether or not the accident was caused by the fault of the defendants is not to be re-submitted to the jury on the new trial. The form of the verdict shall properly reflect that only the amount of damages, if any, sustained by the plaintiffs as a result of this accident is to be considered and decided by the jury.

This case is distinguishable from Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975). In Gonzales the issue of liability was before the jury. The jury fully considered all of the issues, although the trial court had made a consequential but erroneous instruction to the jury on the duty of motorists toward small children. Neither party was deprived of its right to a jury trial. Briefly, in Gonzales, the Court of Appeal had found a jury charge substantially deficient and had remanded the case for a new trial. The Supreme Court disagreed with the intermediate appellate court’s sending the case back for a new trial, and remanded the case to the Court of Appeal to consider the trial record and decide the case on the merits, reasoning that since the record was complete and the state constitution vests fact-finding jurisdiction in the appellate courts, judicial economy was best served by decision on the merits on the record rather than remand. Thus, it is only where a finding of fact is prevented because of some legal error implicit in the fact-finding process, or when a mistake of law forecloses a finding of fact, and where the record is complete, that the appellate court, should decide the case on the merits on the record. Gonzales v. Xerox Corporation.

Appellate courts are given the power to remand an action for proper consideration when the record is so incomplete that the court is unable to pronounce definitely on the issues presented-or where the parties have failed, for whatever reason, to produce available evidence material to a proper decision. Bodin v. Bodin, 392 So.2d 759 (La.App. 3rd Cir.1980).

In the instant case it is apparent that the plaintiffs had evidence available to them to establish a connexity between the accident admittedly caused by the fault of the defendants and the personal injuries complained of. We feel that, in the interest of justice, the judgment of the trial court and the verdict of the jury must be reversed and this matter remanded to the trial court for consideration of the issue of quantum by a jury.

For the foregoing reasons, the judgment of the lower court is reversed; the case is remanded. Costs of this appeal are assessed against the defendants-appellees; all other costs are to await a final determination.

REVERSED AND REMANDED.

SAVOIE, J., concurs.


author: CRAIN, Judge.

text:
    SHELTER INSURANCE COMPANY v. Michael CRUSE.
    No. 83 CA 0358.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Michael W. McKay, Roy, Kiesel, Patterson & McKay, Baton Rouge, for plaintiff-appellant.
    John A. Lieux, Gonzales, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Plaintiff appeals a judgment of the trial court which dismissed its suit to declare an insurance policy void ab initio and to recover damages paid under the policy.

On June 1, 1981, Michael Cruse (Cruse) applied for automobile insurance with Shelter Insurance Company (Shelter). At that time Cruse, in response to questions on Shelter’s insurance application, stated that he had not had any tickets or accidents within the past three years. Shelter issued a policy to Cruse.

On June 16, 1981, Cruse damaged his vehicle in a single vehicle collision and filed a claim with Shelter for payment under the policy. Shelter paid Cruse $1,855.63 over the $200.00 deductible.

After payment, Shelter discovered that Cruse had made false statements on the application regarding his driving record. Shelter sued for return of the money alleging that payment had been made under a void policy.

The trial judge dismissed Shelter’s claim finding that although Shelter had proved the falsity of the statements and the materiality of the statements to the acceptance of the risk, it had not proved Cruse’s intent to deceive. Shelter assigns as error on appeal the trial court’s finding that Cruse did not have intent to deceive when he made false statements on the application for automobile insurance.

La.R.S. 22:619(A) provides:

Except as provided in Sub-section B of this Section and R.S. 22:692, no oral or written misrepresentation or warranty made in the negotiation of an insurance contract, by the insured or in his behalf, shall be deemed material or defeat or avoid the contract or prevent it attaching, unless the misrepresentation or warranty is made with the intent to deceive.

We observed in Davis v. State Farm Mutual Automobile Insurance Company, 415 So.2d 501, 503 (La.App. 1st Cir.1982) that,

To defeat coverage it is necessary to find an intent to deceive. The difficulty of proving intent to deceive is recognized by the courts, thus the courts look to the surrounding circumstances indicating the insured’s knowledge of the falsity of the representation made in the application and his recognition of the materiality of his misrepresentations, or from circumstances which create a reasonable assumption that the insured recognized the materiality. Cousin v. Page, 372 So.2d 1231 (La.1979).

In Davis, 415 So.2d 501, the applicant denied having any tickets or accidents within the past several years when in fact both he and his wife had received several tickets. The trial court held that Mr. and Mrs. Davis did not understand the questions and consequently were telling the truth as they knew it. This court reversed the trial court’s finding and held that it was unreasonable under the circumstances to believe that Mr. Davis did not understand the questions and the materiality of the questions to his obtaining insurance.

The record in this case establishes not only facts very similar to Davis, 415 So.2d 501, but also the significant fact that Cruse had previously applied for insurance from Shelter in 1977 and had been rejected. The reason given to Cruse for his rejection at that time was he had too many tickets. Therefore, Cruse obviously knew of the importance of his driving record to obtaining automobile insurance.

Accordingly, we hold that there was a misrepresentation with intent to deceive and that Cruse recognized the materiality of this misrepresentation. Therefore, the insurance policy is void ab initio. Lovett v. Webb, 183 So.2d 97 (La.App. 1st Cir.1965), application not considered, 248 La. 1030, 183 So.2d 651 (1966).

Shelter further argues that once the policy is declared void ab initio then it is entitled to recover the amount paid under the policy as payment of a thing not due under La.C.C. arts. 2301 and 2302. La.C.C. art. 2302 provides that “[h]e who has paid through mistake, believing himself a debt- or, may reclaim what he has paid.”

In Central Surety & Ins. Corp. v. Corbello, 74 So.2d 341 (La.App. 1st Cir.1954), this court allowed an insurer to recover money paid to the insured on a policy which had expired, reasoning that since the policy was ineffective on the date of the accident, payment was not due. At the time of Cruse’s accident the policy was ineffective. Consequently, the payment made under the policy was not due.

Cruse argues that Shelter’s own neglect in not inspecting his driving record bars any recovery. However, negligence per se is not a bar to recovery for the payment of a thing not due. Dynamic Exploration, Inc. v. Sugar Bowl Gas Corporation, 367 So.2d 18 (La.App. 1st Cir.1978), writ denied, 368 So.2d 142 (La.1979).

Accordingly, we reverse the trial court’s judgment in favor of Cruse and hold that Shelter is entitled to recover $1,855.63, together with legal interest from judicial demand until paid. All costs are to be paid by Cruse.

REVERSED AND RENDERED.


text:
    Charles BUCK v. Forest J. ADAMS, et al.
    No. 83 CA 0369.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Russel J. Cremaldi, Morgan City, for plaintiff, appellee.
    P. David Carollo, Slidell, for defendants, appellants.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This is a redhibitory action to rescind the sale of a shrimp boat. The trial court rendered judgment in plaintiff’s favor rescinding the sale and ordering defendants to pay all costs. Defendants appealed, alleging the defect was not redhibitory in nature and, alternatively, that it was discoverable upon simple inspection. We find no error in the trial court’s conclusion that the boat was defective, and that such defect was not discoverable by simple inspection. Accordingly, we affirm.

The parties stipulated that on August 28, 1980, plaintiff purchased the shrimp trawler, Papa White, from defendants for $47,-000.00. At the time of sale, the Papa White was a 13-year-old wood-bottom boat.

Plaintiff became aware of the boat’s availability for purchase by defendants’ newspaper ad. After contacting defendants in reference to this ad, plaintiff and his father, Mr. Norman Buck, went to view the boat. At that time, it was in the water, thus preventing any inspection of the boat’s bottom. However, plaintiff inspected the remainder of the boat and was satisfied therewith. Both plaintiff and his father testified that the defendants guaranteed that the boat’s bottom was in good condition and, if not, plaintiff’s money would be refunded upon return of the boat. Thereupon, plaintiff purchased the boat.

Thereafter, plaintiff and Kenny Blicker navigated the boat to plaintiff’s moorings. Both testified that the bilge pumps operated constantly during this voyage.

Within eight days thereafter, plaintiff had the boat dry-docked. He stated that the boat’s bottom, upon first view, was a “disaster” from being worm eaten. Plaintiff then attempted to contact Mr. Adams but was unable to do so. Thereafter, plaintiff again dry-docked the boat and contacted Dan 'McCloy, a marine surveyor, to inspect the boat.

Mr. McCloy performed a survey on the Papa White on October 1, 1980. He noticed severe evidence of worm infestation on numerous planks below the waterline and partial replacement of the bottom with oversized plankings. He opined that the worm infestation created two problems: (1) excessive leaking, and (2) weakening of the vessel’s structure to include the keel. He explained that uneven planking beneath the waterline could cause the boat to catch on something and thereby result in planks splitting away. Based on his inspection, McCloy testified he would not have approved the boat for insurance purposes. Further, he felt that the boat’s condition was the same on the date of purchase (August 28, 1980) as it was on October 1, 1980. Also, he opined that more than likely, the boat would not have been seaworthy to perform shrimping duties as of August 28, 1980.

In February, 1981, McCloy inspected the Papa White for a second time. At this inspection, he was accompanied by Ed McGarry, a marine surveyor, who had inspected the boat at defendants’ request in March, 1980, several months before it was purchased by plaintiffs. McCloy took this opportunity to point out to McGarry the worm holes and defects in the keel.

Like McCloy, McGarry was accepted as an expert in marine surveying. However, unlike McCloy, half of whose work involves the inspection of wood-bottom boats, McGarry has inspected only six or seven wood-bottom boats in his career. He deals primarily with steel-bottom boats.

It was McGarry’s opinion that the vessel was suitable for insurance purposes when he inspected it in March, 1980. He testified that, at that time, there was no evidence of worm infestation and no apparent problem with the boat’s bottom. In contrast thereto, defendant-Mr. Adams testified he was preparing to cover some worm holes at the time of McGarry’s appraisal. Mr. Adams stated that previously thereto, he had covered other worm holes with a silicone and cement mixture and had replaced several planks of the boat’s bottom because of the worm infestation and to aid in strengthening the boat. McGarry testified he noticed one or two planks had been replaced but did not consider this dangerous. As to his later inspection with McCloy in February, 1981, McGarry noticed that the vessel’s stern boards appeared to have a slight opening in them which was not present in March, 1980. He opined that the vessel could possibly have struck something but that he could not really tell. Contrarily, McCloy could not recall any evidence that the boat had struck a submerged object.

Defendants complain that the worm holes in the boat’s bottom are not redhibi-tory in nature because: (1) defendant told the plaintiff about the condition at the time of sale; (2) worm holes are allegedly a commonplace occurrence in wood-bottom boats; and (3) the condition was discoverable upon simple inspection.

Redhibition is the avoidance of a sale on account of some vice or defect in the thing sold, which renders it either absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice. L.S.A.-C.C. art. 2520. Not among redhibitory vices are apparent defects, that is, such as the buyer might have discovered by simple inspection. L.S. A.-C.C. art. 2521. In addition, a redhibi-tory action cannot be instituted by the buyer on account of latent defects which the seller has declared to him before or at the time of the sale. L.S.A.-C.C. art. 2522.

(1)

Here, Mr. Adams stated that in deposition, he had stated that the plaintiff was told of the worm holes in the boat’s bottom. When questioned again about whether he had told plaintiff of the worm holes, Mr. Adams responded affirmatively.

However, the trial court held that the •plaintiff was entitled to rescission of the sale not due to the worm infested boat’s bottom, but “on account of the unseaworthiness of the vessel at the time of sale.”

We agree that the boat’s unseaworthiness is the defect. Albeit the worm holes are the cause thereof, the record reflects that it is possible to have a seaworthy vessel with worm holes. Defendants’ mention of the worm holes to plaintiff is of little importance since the crucial disclosure is the seaworthiness of the vessel.

(2)

Defendants next contend that worm holes are a common occurrence in wood-bottom boats and, therefore, are not redhi-bitory in nature. This contention is without merit.

First, a defect is redhibitory in nature when it is such that renders the thing sold absolutely useless, or its use so inconvenient and imperfect, that it must be supposed that the buyer would not have purchased it had he known of the vice. L.S. A.-C.C. art. 2520. It has nothing to do with whether or not the defect commonly exists.

Second, the redhibitory vice existing herein is the unseaworthiness of the vessel, not the presence of the worm holes.

(3)

Defendants finally contend that the worm holes were an apparent defect because they were discoverable by simple inspection. More specifically, defendants argue that dry-docking the Papa White is encompassed in the “simple inspection” required in L.S.A.-C.C. art. 2521 when taking into account: “the knowledge and expertise of the parties, the desire of the purchaser to dry-dock the Papa White, the reason for the purchaser to dry-dock the Papa White, the idea expressed by the purchaser that there was no rush to buy the Papa White, and the knowledge of the parties that there was, in fact, worm infestation in the Papa White.”

L.S.A.-C.C. art. 2521 provides that:

“Apparent defects, that is, such as the buyer might have discovered by simple inspection, are not among the number of redhibitory vices.”

The court, having affirmed the trial court’s finding that the boat’s redhibitory defect was its unseaworthiness and not its worm holes, need not consider whether the worm holes were apparent. We find the sole issue posed is whether “simple inspection” requires one to dry-dock a boat to check its seaworthiness. We think not.

Our courts have noted that “inspection” connotes more than a mere casual observation and envisages an examination of the article by the vendee with a view of ascertaining its soundness, though he is not required to examine inner or hidden parts of the object for the purpose of finding latent defects. Pursell v. Kelly, 244 La. 323, 152 So.2d 36 (1963); see also Estopinal v. Bourshie, 420 So.2d 749 (La.App. 4th Cir.1982). Such examination should reveal what a reasonably prudent purchaser acting under similar circumstances would have discovered. Anselmo v. Chrysler Corporation, 414 So.2d 872 (La.App. 4th Cir.1982). Further, the scope of the purchaser’s inspection may depend on the facts in each case, such as knowledge and expertise of the purchaser, opportunity for inspection, and assurances made by the seller. Anselmo, supra.

Here, there is nothing in the record to indicate that plaintiff had any “special knowledge” or “expertise” about wood-bottom boats. Further, although there is some question of whether, in fact, plaintiff knew about the boat’s worm infestation, there is no doubt that plaintiff did not know the extent thereof. The record also reveals that the dry-docking facilities in the area were operating at capacity at that time and, therefore, there would have been a waiting period prior to the dry-docking of the boat. Although plaintiff was concerned about the condition of the boat’s bottom, he relied upon Mr. Adams’ guarantee of its good condition when deciding to forego the dry-docking before purchase. There was also testimony that the boat could be returned after dry-docking if the bottom was unsatisfactory. Mr. Adams’ advertisement that the boat was in “ex. cond.” supports plaintiff’s reliance of Mr. Adams’ guarantee. When plaintiff went to view the boat, it was in the water and all the worm holes were below the waterline. We find that nothing in defendant’s advertisement or in plaintiff’s viewing of the boat which would have put him on notice of the vessel’s unseaworthiness.

As dry-docking a boat is both expensive and time consuming, and nothing indicated the boat’s bottom was damaged, to require dry-docking before purchase would seem to go beyond that contemplated by “simple inspection.” We so find.

For the above and foregoing reasons, the trial court’s judgment is affirmed. Defendants are to pay all costs of the appeal.

AFFIRMED.

      . Defendants’ ad read:
      "47' Double or Single rig Shrimp Trawler. Fully equipped, all radios, and generators, Exc. Cor.d. Best buy in the South. See to appreciate. Leesville, La. Price negotiable. Call 1-649-1315.”

      . Plaintiff testified that he spoke with Mrs. Adams on several occasions but was unable to speak with Mr. Adams. Further, plaintiff was contacted by the Adams’ attorney, Mr. Carollo, and told not to call anymore.

      . A latent defect is one which cannot be discovered by simple inspection. Lemoine v. Hebert, 395 So.2d 353 (La.App. 1st Cir.1980).


text:
    Peter J. VICARI, Jr. v. Linton MELANCON. Peter J. VICARI, Jr. v. Robert ADAMS.
    Nos. 83 CA 0374, 83 CA 0375.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 13, 1984.

      Stephen J. Caire, Metairie, for Peter J. Vicari, Jr.
    John J. Erny, Jr., Larose, for Linton Me-lancon and Robert Adams.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

These are consolidated appeals from judgments dismissing plaintiff’s suits. Plaintiff, Peter J. Vicari, Jr., filed separate suits against the defendants, Linton Melan-con and Robert Adams, seeking payment for the construction of a water line across defendants’ properties. Plaintiff alleged that he had entered into an oral contract with each defendant calling for payment of $6.00 per linear foot for the construction of the water line. The trial court found that plaintiff failed to prove either contract and dismissed his suits.

The evidence, as presented at the trial, consisted of testimony by plaintiff’s employee, Michael Gene Burke, the defendants, and Eldon Breaux, General Manager for the Lafourche Parish Water District Number 1. Mr. Breaux provided the background information concerning the construction of the water line. He testified that where a developer wanted to extend an existing water line to a new development, it was customary for the developer to pay for the construction of the new line. In the present case, plaintiff Vicari wished to extend an existing line to serve property he owned behind defendants’ property. This new line also passed through property of others, who contributed to the cost of construction. Some of these property owners paid into a fund held by the Water District, which, in turn, paid the plaintiff. Some owners paid plaintiff directly. The defendants did not pay anything into the fund held by the Water District or to the plaintiff.

Mr. Burke testified that he spoke to both defendants, but his recollection of what was discussed was vague and indefinite. The defendants, on the other hand, were definite about what they agreed to do. Defendant Melancon stated that he never agreed to pay for the water line, but did give plaintiff permission to cross his property. He further stated that after construction was begun, Burke approached him about paying for the water line, but he told Burke that he did not have the money to pay for it. Melancon did agree to send prospective purchasers of plaintiff’s subdivision lots to Burke as payment for his portion of the cost of the water line. Breaux testified that Melancon has not tapped into and does not receive any water from the line.

On the other hand, defendant Adams consistently maintained that he never agreed to pay anything toward the cost of constructing the water line, because he allowed Burke to construct it on his property without charging for the servitude or right-of-way.

Burke could not remember whether Adams had agreed to pay for the water line; Adams, supported by Melancon’s testimony, testified that he was never asked to pay for construction of the water line. Therefore, there is no testimony in the record that Adams agreed to anything other than permitting the line to be across his property-

The Civil Code regulates the proof of obligations. LSA-C.C. art. 2277 states:

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

Although the courts have allowed recovery based on the plaintiff’s testimony and held that such testimony constituted evidence of one credible witness, those cases included evidence of corroborating circumstances. Where there was found to be no corroborating evidence, the plaintiff’s testimony has been held to be insufficient to meet the burden of proof as outlined in LSA-C.C. art. 2277. In the case of Bordlee v. Pat’s Construction Company, Inc., 316 So.2d 16, 17 (La.App. 4th Cir.1975), the court made the following statement:

In all such civil matters plaintiff must carry the burden imposed on him by a preponderance of the evidence. This simply means that viewing the evidence as a whole the existence of a fact is more probable than its nonexistence. Lombard v. Sewerage & Water Board of New Orleans, 284 So.2d 905 (Supreme Court 1973); Marcotte v. Travelers Insurance Co., 258 La. 989, 249 So.2d 105 (1971); Hanover Insurance Co. v. Jacobson-Young, Inc., 294 So.2d 564 (La.App. 4th Cir.1974).

We find that the plaintiff has failed to carry his burden of proof in these cases, since he has not presented any corroborating circumstances in support of his contention that the defendants agreed to pay for the installation of the water line. He has only offered the testimony of one witness, which has not been corroborated.

Plaintiff further contends that he is entitled to recover under a theory of unjust enrichment. The criteria for a successful prosecution of an action in unjust enrichment were established by the case of Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967). In addition to the enrichment of the defendant at the expense of the plaintiff, the plaintiff must establish, among other things, that the defendant’s enrichment occurred without legal justification or cause. In this case, the record discloses that the plaintiff constructed the water line across defendants’ property without purchasing a right of way on which to lay the water line, and that the water line could be used to serve plaintiff’s property as well as defendants’. Consequently, the evidence in this case preponderates to the effect that the defendants were not enriched at the plaintiff’s expense. On the contrary, the plaintiff obtained something of value from defendants without payment, and the defendants obtained access to the water line without paying for its construction. Also, the elements of enrichment without legal cause are not present. The proportionate difference in values is not shown by the evidence. The record supports the trial court’s conclusion that neither party was unjustly enriched at the expense of the other.

For the reasons assigned, the judgments of the trial court are affirmed at appellant’s costs.

AFFIRMED.


author: COLE, Judge.

text:
    Benny RICARD v. STATE of Louisiana, et al.
    No. 83 CA 0378.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Dennis R. Whalen, Baton Rouge, for plaintiff-appellant.
    Stephen H. Vogt, Baton Rouge, for defendants-appellees.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this case is whether or not the trial court erred in finding plaintiff failed to prove by a preponderance of the evidence he was “pistol whipped” by a Louisiana State Police officer.

Almost all facts were disputed at trial. Sergeant Russell Cook and Patrolman Emile Burgoyne of Troop A, Louisiana State Police, were conducting a stationary radar surveillance on U.S. Highway 190 in the early morning hours of August 13, 1977. A car driven by Benny Ricard (age 18) was clocked as traveling 87 miles per hour. Sergeant Cook turned on his red overhead lights, stepped out of the car, and using a flashlight, motioned Ricard’s vehicle to pull over. Ricard did not stop but continued traveling at a high rate of speed. Cook pursued Ricard in his vehicle and Burgoyne followed behind. Cook testified his vehicle was traveling at least 115 miles per hour. When the cars approached the intersection of U.S. 190 and Highway 63 the Ricard vehicle hit a curb and momentarily left the ground. Ricard apparently lost control of the car as it turned 180 degrees and finally came to a stop in a nearby parking lot.

Cook testified he attempted to remove Ricard from the car and ordered him to “submit.” However, Ricard resisted and a struggle ensued as Cook attempted to handcuff him. Cook denied striking Ri-card. Trooper Burgoyne arrived and found the men scuffling on the ground. He helped Cook handcuff Ricard. Both policemen testified they later noticed Ricard had been cut on the back of the head and offered him medical assistance, which he refused. He was taken to the Livingston jail and booked with speeding and resisting arrest. When released he went to Dixon Memorial Hospital where he received 11 stitches for his head injuries. In June of 1978 he filed suit against the State of Louisiana and others alleging he had been “pistol whipped” by a Louisiana State Police officer. The trial was not held until November of 1982.

Ricard testified he was traveling down U.S. 190 at a speed no greater than 68 miles per hour. He says he was totally unaware of the policemen until immediately before his car stopped in the parking lot. He testified Officer Cook told him to put his hands on the hood of the car and then Cook struck him three or four times in the back of the head with the butt of his pistol. He stated he was then handcuffed, pushed to the ground and kicked in the ribs.

Officer Cook testified that after handcuffing Ricard he looked inside the vehicle and noticed a smear of blood on Ricard’s dashboard. Officer Burgoyne said he saw a small amount of blood on the headrest and on the ceiling of the car. A third officer, Steve Jones, testified he was in the Livingston area when he heard the chase on the radio. When he arrived at the parking lot he saw the two police officers pulling Ricard from the ground.

Two of Ricard’s friends were called as witnesses. Ricky McSwain stated he was a passenger in Jimmy Pate’s car on the morning of the incident. He testified they were traveling west on U.S. 190 and noticed Ricard’s car (traveling east) being pursued by police. They turned around and when they arrived at the parking lot saw Benny with his hands on the hood of his car and saw Officer Cook hit Benny on the head. Another officer told them to leave the scene or they would receive the same treatment as Benny.

James Pate testified they first noticed Benny’s car when they spotted it at the parking lot and saw Benny being picked up from the ground. He did not see anyone strike Benny.

In oral reasons for judgment the trial court noted inconsistencies between the testimony of McSwain and Pate and stated: “It’s almost impossible to reconcile the testimony of those two eyewitnesses.” The court then went on to balance the conflicting testimony between Ricard and the three police officers. The court then commented as follows:

“He (Officer Cook) was in pursuit to make a lawful arrest, and during the course of that arrest Mr. Ricard resisted arrest and was injured in the scuffle. Exactly how he was injured, I don’t know but he was injured during the process of a lawful arrest. I would have to say his injuries were accidental.”

The court therefore found in favor of the defendants and against plaintiff.

As always, we must give great discretion to the trial court's conclusions concerning credibility of witnesses and reasonable inferences of facts. Aleman v. Lionel F. Favret Co., Inc., 349 So.2d 262 (La.1977), rehearing denied 1977. The trial court apparently accepted the facts as related by Officers Cook and Bourgoyne as opposed to those stated by plaintiff and his witnesses. We find these conclusions to be reasonable and will not disturb them here. Plaintiff’s version of the incident is simply not corroborated by the evidence. He maintained he was totally unaware of the police pursuing him until he stopped in the parking lot. Yet Officers Cook and Bour-goyne and Ricky McSwain testified the police car’s siren and overhead lights were on as Ricard was being pursued. The high speed chase continued for several miles. The physical evidence showed Ricard’s car skidded over 200 feet in the parking lot, indicating he was traveling at a high rate of speed when he attempted to stop.

The testimony concerning the sequence of events which occurred after the Ricard automobile stopped is indeed conflicting. Yet the trial court, after listening to the testimony and observing the demeanor of the witnesses, concluded any injuries received by Ricard were caused by accident rather than by an intentional act of the arresting officer. Again, we find this conclusion reasonable. Officer Cook admitted he had initially pulled his gun when making the arrest. He stated that when Ricard resisted and the scuffle began it was possible the gun may have come into contact with the young man’s head as they scuffled. The fact that both police officers observed blood on the interior of Ricard's car indicates it is possible he injured his head when the car hit the curb and went out of control. In any event, we agree the plaintiff did not prove by a preponderance of the evidence that Officer Cook (or any other police officer) deliberately “pistol whipped” him. For these reasons, the judgment of. the trial court is affirmed. Appellant is to pay costs.

AFFIRMED.

      . Other defendants are the Department of Public Safety and its secretary, their insurance company and Officer Steve Jones. The trial court found Steve Jones had no real connection to the case and dismissed him as a defendant.

      . This suit was brought under 42 U.S.C. § 1983 (Civil Rights Act). Previously litigated was the question of whether or not punitive damages may be awarded. See, Ricard v. State, 382 So.2d 190 (La.App. 1st Cir.1980); affirmed, 390 So.2d 882.


author: SHORTESS, Judge.

text:
    Gloria BURTON v. COUNTRY BOYS, INC., d/b/a the Pressing Shoppe.
    No. 83 CA 0403.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Robert M. Braiwick, Jr., New Orleans, for plaintiff-appellant.
    Lonny A. Myles, Hammond, Michael Stagg Guillory, New Orleans, Frank M. RePass, III, Slidell, for defendant-appellee.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Gloria Burton (plaintiff) brought suit against Country Boys, Inc., d/b/a The Pressing Shoppe (defendant) stating two causes of action, one sounding in negligence and the other in workers’ compensation. Both stemmed from the same incident which occurred on April 9, 1981. Plaintiff had been employed as a waitress at the Pitt Grill in Hammond, but her friend Mary Robertson told her there was a job opening at The Pressing Shoppe, so plaintiff went there to apply for it. During the course of her interview and while learning how to operate a pressing machine at Mary Robertson’s direction, she injured her left ring finger when it was caught in the machine. She suffered second-degree and third-degree burns to that finger. Defendant filed an exception of no right and no cause of action to plaintiff’s petition in tort. It alleged that: “Plaintiff, Gloria Burton, has no right of action in tort against defendant since she was, at the time of the alleged accident, an employee of defendant. As such, plaintiff’s only right of action is in workmen’s compensation.”

Defendant filed an extensive memorandum wherein it set forth unequivocally that plaintiff was an employee. The trial court on August 9, 1982, rendered an opinion sustaining the peremptory exceptions of no right and no cause of action. On August 24, 1982, this opinion was reduced to written judgment, and plaintiffs suit based on negligence was dismissed with prejudice at her costs.

Subsequently, the workers’ compensation claim was tried. After hearing the evidence, the trial court rendered an opinion dismissing plaintiffs case. The court was of the opinion that “there was no evidence indicating that plaintiff was an employee of the defendant corporation. It was not shown that any official or anyone in authority of defendant corporation had anything to do with inviting plaintiff to ‘try out’ for employment. The person who apparently arranged with plaintiff to come to The Pressing Shoppe, Mrs. [Robertson], was not called as a witness.”

La.Civil Code art. 2291 provides that:

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

"The [Louisiana Supreme Court] in Farley v. Frost-Johnson Lumber Co., 133 La. 497, 63 So. 122 (1913), in interpreting LSA-C.C. art. 2291 stated that a judicial confession in the pleadings has the effect of dispensing with the necessity of producing evidence to prove those facts admitted in the pleadings.” McCorkle v. Service Cab Co., Inc., 305 So.2d 589 at 590 (La.App. 4th Cir.1974). See also Smith v. Board of Trustees of Louisiana School Employees Retirement System, 398 So.2d 1045 (La.1981); Cheatham v. City of New Orleans, 378 So.2d 369 (La.1979); Guillot v. Alleman, 303 So.2d 272 (La.App. 1st Cir.1974), writ denied, 303 So.2d 749 (La.1974) (admissions made in exception of nonjoinder and answer to interrogatories). We further note that La.C.C.P. art. 852 includes the exception as a type of pleading: “The pleadings allowed in civil actions ... shall consist of petitions, exceptions, written motions, and answers.” (Emphasis added.)

The Court in Jackson v. Gulf Insurance Company, 250 La. 819, 199 So.2d 886 (La.1967), passed upon the general applicability of Article 2291. The plaintiff in that case had asserted the article applied only to conventional obligations since it was found in Title IV of the Civil Code. The court ruled otherwise, stating:

Article 2291 contains no language delimiting it to proof of conventional obligations. The Article refers generally to “a judicial proceeding.” This Court has long recognized that the Article applies to judicial proceedings other than those involving the proof of a contractual obligation.
199 So.2d at 889.

We find that La.C.C. art. 2291 also applies to workers’ compensation proceedings. The trial judge erred in finding that plaintiff was not an employee of the defendant corporation. Her status as an employee was not an issue because of defendant’s admissions.

Immediately after the accident, plaintiff went to see Dr. Vincent N. Cefalu, a general practitioner in Hammond. He examined her and found second-degree and third-degree burns over the entire left ring finger. He found her to be in a lot of pain and asked her to return in a couple of days so he could debride the wound. She returned on April 13, 1981. He debrided the finger and found that the burn was still bad. Cefalu told plaintiff he did not know what would come of it and wanted to see her weekly for treatment, but he never saw her again. He felt that second-degree burns took two or three weeks at a minimum to heal, and third-degree burns took a couple more weeks.

On April 28, 1981, plaintiff was seen by Dr. James L. Nelson, a general surgeon in Hammond. He testified that Dr. Cefalu referred plaintiff to him. On examination, he found that plaintiff had a third-degree burn that measured lVa centimeters by 3V2 centimeters on the back surface of her left ring finger. He suggested that skin grafting would be appropriate to facilitate healing. He testified that plaintiff was to consider a skin graft and call him back but that he never heard from her again. He estimated that an injury such as this one without a skin graft would take three to six months to heal. He also estimated that with a skin graft it would take about two weeks to heal. Plaintiff admitted seeing Dr. Nelson but said she refused to submit to skin grafts and went back to see him on two different occasions. However, on cross-examination she admitted that she only saw him once.

The only other evidence in the record regarding disability is the certified copy of the Lallie Kemp Charity Hospital record. Plaintiff was first seen at Lallie Kemp on April 16, 1981, with complaints of pain in the left ring finger. A notation on that visit indicates that she “spilt hot grease on finger.” She was treated on April 30, 1981, in the Surgery Department, where the wound was cleaned and debrided. She was seen again in the Surgery Department on May 5, 12, 26, June 25, and July 9. On July 9 a note was made that “the wound almost healed.” After that visit, she was seen on several occasions for other problems not relating to her finger. On January 19, 1982, the admittance record notes “finger on left hand crooked.” Plaintiffs complaint was that she found it increasingly difficult to straighten out her finger. Plaintiff was seen again on February 9 with complaints of stiffness in the finger. On this date she was seen by the Orthopedic Department, and the following note was made: “She seems to be doing quite well at this time. Primary complaint is chronic residual tenderness. Instructed in exercises to toughen up the tender area.” The last note from Lallie Kemp was from her October 19, 1982, visit. Apparently, she was referred to the Orthopedic Department for reevaluation and given an appointment for November 9, 1982. No further records were attached to the Lallie Kemp record.

The record before us clearly establishes that plaintiff experienced problems with the burn to her left ring finger which continued at least through October of 1982. The record, however, is too sketchy as presently constituted to permit us to make any finding relative to disability. Additionally, we note that there was no direct evidence taken as to the amount of wages the job paid. We find that the interests of justice require a remand to the trial court so an evidentiary hearing can be held as to the disability aspects of plaintiffs case.

For the above reasons, the judgment of the trial court is reversed, and this case is remanded for further proceedings consistent with this opinion. All costs of this appeal are taxed to defendant.

REVERSED AND REMANDED.

      . No appeal was taken from that judgment, and it has become final.


text:
    Billy J. TAYLOR (pro se) v. David C. TREEN, Governor of Louisiana; John T. King, Secretary of Corrections; Ross Maggio, Warden At Angola; Dr. Frank Riger, Medical Director At Angola General Hospital.
    No. 83 CA 0426.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Billy J. Taylor, pro se.
    J. Marvin Montgomery, Baton Rouge, for defendants-appellees David C. Treen, Governor et al.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Plaintiff appeals the dismissal of a preliminary injunction which asks that defendants be prohibited from denying plaintiff “a complete and adequate medical examination by specialists at Charity Hospital in New Orleans, Louisiana.”

On November 29, 1982, plaintiff slipped and fell while exiting a shower at Angola Penitentiary. He was treated that day at the penitentiary medical facility and given a “no duty status” for one day. Subsequently, no medical treatment, therapy or medication has been given. Plaintiff filed suit, asking that a preliminary and permanent injunction be issued prohibiting defendants from denying plaintiff “a complete and adequate medical examination by specialists at Charity Hospital in New Orleans, Louisiana.” He further demanded that a declaratory judgment be given stating that defendants’ acts and policies, as enumerated in his petition, were violative of his constitutional rights. Finally, plaintiff asked for compensatory and punitive damages in the amount of One million and no/100 ($1,000,000.00) Dollars each.

A hearing was had before Commissioner Norbert C. Rayford on the issue of the preliminary injunction. After such hearing, the commissioner found that the plaintiff had failed to carry his burden of proof (i.e., failed to establish irreparable injury). As such, he denied plaintiff’s request for a preliminary injunction. In his report, the commissioner noted that he had committed a faux pas in that he realized after he had denied the plaintiff’s motion for a preliminary injunction, that he had no authority to decide injunctive issues. Consequently, he ordered the defendants’ motion for a directed verdict rescinded and made his recommendations to the trial court. Based upon the commissioner’s recommendations, the trial court rescinded the commissioner’s directed verdict and de novo, granted a directed verdict for the defendants, thus dismissing plaintiff's request for a preliminary injunction.

Plaintiff assigns as error the commissioner’s: (1) decision or recommendation on the injunctive issue to the trial court as he had no such authority, and (2) finding that no irreparable injury would accrue if an injunction or a full and complete examination were not granted.

L.S.A.-R.S. 13:713 provides in part that a commissioner may be designated to conduct hearings, including evidentiary hearings, and to submit to the trial court, proposed findings of fact and recommendations for the disposition of any matter or motion pending before the court. This power to conduct hearings has also been extended to motions for injunctive relief. Bordelon v. Louisiana Department of Corrections, 398 So.2d 1103 (La.1981). As such, we find plaintiffs first assignment of error to be totally without merit.

Plaintiff secondly contends that the commissioner erred in deciding irreparable injury would not accrue if an injunction for a complete and full physical was not granted to the plaintiff. He cites L.S. A.-C.C.P. art. 1493 and L.S.A.-R.S. 15:831 as giving him a right to have a complete and full medical examination. Such logic is unfounded. First, L.S.A.-C. C.P. art. 1493 provides that the court may order a litigant to submit to a physical or mental examination by a physician. Further, the trial court is afforded great discretion in granting such physical examination of a litigant and in setting the guidelines therefor. Walker v. Marcev, 427 So.2d 678 (La.App. 4th Cir.), writ denied, 433 So.2d 182 (La.1983). Here, we find that the trial court did not abuse its discretion in refusing to require a physical examination. Secondly, L.S.A.-C.C.P. art. 1493 is a discovery article. Plaintiff has failed to cite nor have we found any jurisprudence which requires a court to mandate a physical examination of the plaintiff upon motion of the plaintiff. Such is not the law in Louisiana. Accordingly, we find L.S.A.C.C.P. art. 1493 to be inapplicable in the instant matter.

While L.S.A.-R.S. 15:831 requires the state to provide competent medical attention, the trial court did not find the evidence substantiated that the medical attention in this instance was inadequate. Great weight is to be given the trier of fact’s findings and will be overturned only if manifestly erroneous. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). We find the record fails to substantiate the rendering of inadequate medical attention. Accordingly, plaintiffs assignment of error is without merit.

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

AFFIRMED.

      . "A. Commissioners of the Nineteenth Judicial District Court shall perform such duties as are assigned to them by the chief judge of the district in accordance with rules which shall be prescribed by the elected judges of the court, not inconsistent herewith or with the constitution and laws of the state. Such duties shall include but shall not be limited to, hearing and recommendation of disposition of criminal and civil proceedings arising out of the incarceration of state prisoners.
      "B. Over matters pending in the Nineteenth Judicial District Court, commissioners shall have all powers of a district judge not inconsistent with the rules of the court and their assigned duties, except the adjudicatory power, including but not limited to the powers to administer oaths and affirmations, take acknowledgments, affidavits, and depositions, fix bails, and issue search and arrest warrants.
      "C. In furtherance of the above, a commissioner may be designated and assigned to hear and determine any pretrial matter pending before the court, except motions for injunctive relief and temporary restraining orders in civil matters and preliminary hearings, motions for discovery, motions to suppress, and motions to quash in criminal matters, or any motion or exception which adjudicates any question of law or fact with regard to that matter. A commissioner may be designated to conduct hearings, including evidentiary hearings, and to submit to the judge of the appropriate division, proposed findings of fact and recommendations for the disposition thereof of any matter or motion pending before the court, or any application for post trial relief made therein. In such cases, the commissioner shall file his proposed findings and recommendations with the court, and a copy shall forthwith be mailed, postage prepaid, to all parties or their counsel of record. Any party, within ten days after transmittal of such copy, may traverse such findings or recommendations in writing in such manner as shall be specified by the rules of the district court. The judge of the appropriate division shall make a de novo determination of any findings or recommendations to which objection is made. The judge may accept, reject, or modify in whole or in part the findings or recommendations made by the commissioner and also may receive further evidence or recommit the matter to the commissioner with instructions.
      "D. In proceeding before a commissioner, any- act or conduct which, if committed before a judge having authority over the same would constitute contempt of court, whether direct or indirect, shall be a contempt of the district court. Upon the commission of any such act or conduct, the commissioner shall forthwith certify the facts thereof to a judge of the district court. Such judge shall thereupon, and in accordance with law, hear the evidence of the act or conduct complained of and, if such person is adjudicated in contempt, shall punish such person in the same manner and to the same extent as for a contempt committed before a judge of the court, or commit such person upon the conditions applicable in the case of defiance of process of the district court or misconduct in the presence of a judge in the court."

      . "In an action in which the mental or physical condition of a party is in controversy, the court in which the action is pending or in which the judgment was originally rendered may order him to submit to a physical or mental examination by a physician, except as otherwise provided by law. The order may be made only on motion for good cause shown and upon notice to the party to be examined and to all other parties and shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made."

      . "The director of corrections shall establish and shall prescribe standards for health, medical, and dental services for each institution, including preventive, diagnostic, and therapeutic measures on both an outpatient and a hospital basis, for all types of patients. An inmate may be taken to a medical facility outside the institution when deemed necessary by the director.”


text:
    Harry W. HOSE v. Brenda Irene HOSE.
    No. 83 CA 0848.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Bruce E. Simpson, Kentwood, for plaintiff-appellee.
    Richard A. Schwartz, Amite, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This matter commenced as a suit for a divorce by Harry W. Hose (husband), a resident of Louisiana, against Brenda Irene Hose (wife), a resident of Florida. Subsequently, the husband filed a petition for the temporary custody of the couple’s two minor children, Keitha Lynn Hose and Harry Wayne Hose. The wife filed declinatory exceptions of lack of jurisdiction over her person and lis pendens (alleging that proceedings had been filed in Florida). After a hearing, the trial judge granted the temporary custody of the children to the husband, ordered the Louisiana Department of Health and Human Resources to conduct home studies on the husband and wife and overruled the exceptions. The wife qualified in forma pauperis and took this devolu-tive appeal contending that the trial court committed error by giving the temporary custody of the children to the husband and by overruling the exception of lack of jurisdiction.

FACTS

The parties were married in Florida in 1975 and moved to Louisiana in 1979. In August of 1982, the wife left Louisiana and went to Georgia taking the children with her. The husband followed and the couple remained in Georgia until the beginning of December 1982 when they went to Miami, Florida to visit their parents. In February of 1983, the husband returned to Louisiana, but the wife remained in Florida with the children. On March 9, 1983, the husband filed this suit for a divorce alleging adultery. He then returned to Florida, picked up the two children and returned to Louisiana.

PROYIDENCY OF THIS APPEAL

An appeal may be taken from a final judgment or from an interlocutory judgment which may cause irreparable injury. La.C.C.P. art. 2083. . A judgment overruling an exception of lack of personal jurisdiction is an interlocutory judgment which is not appealable absent a showing of irreparable injury. Pavlo v. Pavlo, 396 So.2d 390 (La.App. 1st Cir.1981); Delapasse v. Phillips, 348 So.2d 754 (La.App. 1st Cir.1977); Stahlman Lumber Company-Division of Staco Manufacturing Company v. Ferrill, 320 So.2d 331 (La.App. 3rd Cir.1975). Cf. Brian v. Target, Inc., 395 So.2d 372 (La.App. 1st Cir.1981).

A custody judgment incidental to a principal demand for divorce is an interlocutory judgment. La.C.C.P. art. 1841; Mertens v. Mertens, 308 So.2d 508 (La.App. 3rd Cir.1975), writ denied, 313 So.2d 240 (La.1975). Cf. Loeb v. Shanton, 168 La. 874, 123 So. 604 (1929); Courtin v. Browne, 151 La. 741, 92 So. 320 (1922).

Because the wife has failed to allege or demonstrate irreparable injury, this appeal will be dismissed. La.C.C.P. art. 2162; Pavlo, 396 So.2d at 391; Fontenot v. O’Brien, 302 So.2d 399 (La.App. 1st Cir.1974).

Although the wife has taken this appeal in forma pauperis, she is responsible for payment of the costs. La.C.C.P. art. 5188; Smith v. AMF Tuboscope, Inc., 442 So.2d 679 (La.App. 1st Cir.1983); Williams v. Dupre, 347 So.2d 1214 (La.App. 1st Cir.1977).

DECREE

For the foregoing reasons, the wife’s appeal is dismissed at her costs.

APPEAL DISMISSED.

      . At the hearing on the exception, the wife contested the jurisdiction of the court over the children. She raises that same issue in this appeal.


author: ALFORD, Judge.

text:
    STATE of Louisiana v. Gary GLASPER.
    No. 83 KA 0852.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Ossie Brown, Dist. Atty. by Glen Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

Defendant, Gary Wayne Glasper, was charged with three counts of simple burglary of an inhabited dwelling in violation of LSA R.S. 14:62.2. After pleading guilty to all three counts, defendant was sentenced on each count to twelve years at hard labor. The sentences were to run concurrently with each other and any other sentence that defendant might be serving at that time, without benefit of probation, parole or suspension of sentence as provided by law on each count.

There were two assignments of error designated on this appeal:

(1)The trial court erred when it denied defendant’s motion to suppress defendant’s confession.
(2)The trial court erred when it imposed an excessive sentence.

Defendant did not argue assignment number one, therefore it is considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal, State of Louisiana. With regard to assignment of error number two, defendant alleges that the trial court erred when it imposed an excessive sentence on defendant following his guilty pleas to three counts of simple burglary of an inhabited dwelling.

State v. Sepulvado, 367 So.2d 762 (La.1979), states that adequate appellate review must consider whether the trial judge gave due consideration to the statutory guidelines and has specifically stated his reasons for imposition of sentence as related to the particular defendant and the crime committed. While the trial judge need not articulate every mitigating and aggravating circumstance presented in LSA-C.Cr.P. art. 894.1, the record must reflect that the judge adequately considered the guidelines in particularizing the sentence to the defendant. State v. Guiden, 399 So.2d 194 (La.1981).

A review of the record reveals that the trial judge carefully particularized the sentence, considering each and every mitigating and aggravating circumstance as set out in LSA-C.Cr.P. art. 894.1 with respect to Glasper. The judge cited Glas-per’s lengthy arrest record as a juvenile in addition to specifically stating his reasons for the sentence, using the statutory guidelines. In summary, the record shows that the trial judge’s articulation of reasons for the sentence was more than adequate.

A sentence is excessive if it is grossly out of proportion to the severity of the offense or nothing more than the needless and purposeless imposition of pain and suffering. To determine whether a sentence is grossly disproportionate to the crime, the court considers the punishment and the crime in light of the harm to society caused by its commission and whether the punishment is so disproportionate to the crime as to shock our sense of justice. State v. Bonanno, 384 So.2d 355 (La.1980).

The trial court has wide discretion in imposing a sentence within the statutory limits, and the sentence is not to be set aside as excessive in the absence of manifest abuse of that wide discretion. State v. Jacobs, 383 So.2d 342 (La.1980).

Considering the alleged excessiveness of the sentence, we observe that the sentence imposed on the defendant is one-third of a possible maximum of thirty-six years on the three counts, or twelve years. The transcript of the sentencing hearing and the length of the sentence imposed convince us that the trial court gave the defendant full consideration and benefit of any mitigating circumstances. The sentence imposed by the district judge does not shock our sense of justice and is not excessive.

However, we find merit in the appellant’s contention that the trial court erred in interpreting LSA-R.S. 14:62.2 as requiring that the defendant be sentenced to twelve years without benefit of parole, probation or suspension of sentence. (Emphasis added). The Court in State v. Boowell, 406 So.2d 213 (La.1981), held that LSA-R.S. 14:62.2, as written, was ambiguous; hence a defendant, under the principle of strict construction of penal statutes, must be afforded the benefit of any such ambiguity. Under Boowell, where the sentences (of three years) were also to run concurrently, the Supreme Court allowed the ineligibility for parole, probation or suspension of sentence only “during the first year,” not the first year on each count (or a total of three years). Thus, under the Boowell construction, only the minimum sentence of one-year includes the ineligibility provision. A legal sentence for the crime of simple burglary of an inhabited building can be up to twelve years at hard labor, but the ineligibility for parole, probation or suspension of sentence is restricted to the first year.

We hold that the trial court erred in its interpretation of LSA-R.S. 14:62.2 by denying the defendant eligibility for parole, probation or suspension of sentence during the entire term of his sentence.

Accordingly, we hold that the sentence imposed herein was clearly illegal and must be vacated; and we remand the case for resentencing.

AFFIRMED IN PART; REMANDED FOR RESENTENCING.

      . LSA-R.S. 14:62.2 provides:
      Simple burglary of an inhabited dwelling. Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling house, apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the attempt to commit a felony or any theft therein, other than as set forth in Article 60.
      Whoever commits the crime of simple burglary of an inhabited dwelling shall be imprisoned at hard labor for not less than one year, without benefit of parole, probation or suspension of sentence, nor more than twelve years.


author: WATKINS, Judge.

text:
    STATE of Louisiana v. Joe C. RIVERS.
    No. 83 KA 0854.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      J. Kevin McNary and Peter J. Garcia, Asst. Dist. Attys., Covington, for appellee.
    Oliver F. Johnson, David J. Knight, Cov-ington, for appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

Defendant Joe C. Rivers, was indicted for armed robbery, a violation of LSA-R.S. 16:64, (Count I) and aggravated kidnapping, a violation of LSA-R.S. 14:44, (Count II). A jury convicted defendant as charged, and he was subsequently sentenced to life imprisonment at hard labor, without benefit of parole, probation or suspension on Count II, the sentence to be served consecutively to the sentence of life imprisonment which defendant is currently serving for a conviction of first degree murder. The defendant was also sentenced to serve ninety-nine (99) years at hard labor, without benefit of parole, probation or suspension of sentence on Count I, this sentence to be served consecutively to the life sentence imposed under Count II. Defendant has appealed, alleging that the trial court erred in imposing the sentences consecutively.

Defendant was charged with aggravated kidnapping and armed robbery after he and an accomplice abducted a sixteen year old boy after the two had sawed their way out of their cell and escaped from the St. Tammany Parish Jail in a mass jail break. The victim agreed to give the men a ride from the Popeye’s Fried Chicken establishment in Covington, Louisiana, where he worked, to the Lake Pontchartrain Causeway. While he was driving to the Causeway, defendant placed an object against his head and told him to “keep cool”. Defendant’s companion then took over the wheel and began driving eastward. After several stops, defendant and his companion forced the victim out of his car in Alabama, stripped him to his underwear, and, after tying his hands behind his back, the pair drove off in the victim’s car, after also robbing him of his wallet. The pair was apprehended after a day long manhunt in the woods in Florida after running the victim’s car into a ditch while fleeing from police at high speed on a dirt road in that state.

The court imposed the maximum term of ninety-nine (99) years for armed robbery, and the mandated term of life imprisonment for the aggravated kidnapping. Defendant objected to the sentences because of their severity, and argues on appeal that, since the armed robbery and aggravated kidnapping took place at the same time, the imposition of consecutive sentences violated defendant's constitutional right against excessive punishment.

Unless there are specific reasons for heavier punishment, concurrent sentences rather than consecutive sentences are appropriate for convictions arising out of a single course of criminal conduct, at least for a defendant with no prior criminal record and in the absence of a showing that the public safety requires a longer sentence. State v. Armstead, 432 So.2d 837 (La.1983). See also generally LSA-C.Cr.P. art. 883. These offenses, however, were committed during the commission of another crime, that is, the escape from the parish prison, by a defendant already serving a life term for a murder committed during the course of an armed robbery. The defendant testified that he had escaped from jail several times before and had been convicted once of this crime. He further testified that he had been convicted on other occasions for the crimes of attempted armed robbery, receiving stolen property and sales of marijuana. The record leaves no doubt that the defendant is a dangerous and incorrigible criminal. In view of the foregoing we find no abuse of the sentencing discretion on the part of the trial judge by imposing the sentences to be served consecutively, and find, therefore, that the sentences are not unconstitutionally excessive.

AFFIRMED.

      . Defendant’s assignment of errors includes a request that this court review the record for errors patent, and to reverse if such an error is found. After a thorough review of the record in this matter we find no error. See State v. Raymo, 419 So.2d 858 (La.1982).


author: CRAIN, Judge. PER CURIAM.

text:
    STATE of Louisiana v. Wesley McKNIGHT.
    No. 83 KA 0863.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Granted in Part and Denied in Part April 3, 1984.
    Ossie B. Brown, Dist. Atty. by Jeffrey Hollingsworth, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    J.J. McKernan, McKernan & Counce, Baton Rouge, for defendant-appellant.

      Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

Defendant was charged with the shooting death of his estranged wife. The couple had been separated for several weeks, and the victim had moved to Baton Rouge from Amite, Louisiana, along with the couple’s children. Defendant claimed that the gun went off accidentally as he was attempting to give the gun to his wife. He was indicted for the crime of second degree murder, a violation of La.R.S. 14:30.1. The jury returned a responsive verdict of guilty of manslaughter, and defendant was subsequently sentenced to serve eighteen years at hard labor. This sentence was imposed without the benefit of probation, parole, or suspension of sentence under La.R.S: 14:31 and La.C.Cr.P. art. 893.1, a determination having been made that a firearm was used in the commission of the crime. An additional two year term, consecutive to the first term, also without the benefit of probation, parole or suspension of sentence, was imposed under La.R.S. 14:95.2. Defendant appeals alleging four assignments of error, all of which are concerned with the sentence which was imposed.

ASSIGNMENTS OF ERROR

Defendant alleges the following errors in the imposition of his sentence:

1. The trial court erred by failing to sufficiently articulate the reasons for the sentence under La.C.Cr.P. art. 894.1.
2. The court erred in its interpretation of La.C.Cr.P. art. 893.1.
3. The court imposed an excessive sentence.
4. The court erred by imposing a two year sentence under La.R.S. 14:95.2.

Assignment of error number four was not briefed and is not error patent on the face of the record. It is therefore considered abandoned on appeal. Uniform Rules of the' Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

ASSIGNMENT OF ERROR NUMBER ONE:

Defendant alleges that the trial court erred by imposing sentence without regard to applicable mitigating factors. The trial court, in sentencing defendant, noted for the record what he believed to be mitigating factors such as his belief defendant was not likely to commit another crime. He also went thoroughly into defendant’s past record noting what he was and was not considering for sentencing purposes. He also noted that because of the seriousness of the crime, he felt that a lessor sentence would deprecate the seriousness of the incident. The record reflects the trial judge gave due consideration to relevant sentencing factors. It is not necessary for the trial judge to enumerate every factor under La.C.Cr.P. art. 894.-1. State v. Lewis,. 434 So.2d 1261 (La.App. 1st Cir.1983). This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER TWO:

In this assignment of error, defendant alleges that the trial court erred by imposing a sentence of 18 years without the benefit of probation, parole or suspension of sentence under La.C.Cr.P. art. 893.-I. That article provides for sentencing when a firearm was used in thé commission of a felony. Defendant argues that it allows only five years of the sentence to be without benefit of probation, parole, or suspension of sentence. La.C.Cr.P. art. 893.1 calls for a sentence of not less than five years without benefit of parole, probation or suspension when the offender has used a firearm in the commission of a felony that carries a possible maximum sentence of (5) or more years. This in no way implies that a sentence of more than five years without these benefits is prohibited. State v. Moore, 442 So.2d 726 (La.App. 1st Cir.1983). This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER THREE:

Defendant argues that the sentence imposed is excessive. Defendant was convicted for the taking of a human life with a firearm. A minimum sentence of 5 years without suspension and without benefit of parole or probation was necessary. Another two years without these benefits, to run consecutively with the sentence imposed, was also required under La.R.S. 14:95.2. The sentence imposed was not excessive. State v. Mathews, 428 So.2d 988 (La.App. 1st Cir.1983).

For the foregoing reasons we affirm the sentence of the trial court.

AFFIRMED.

ON APPLICATION FOR REHEARING

PER CURIAM.

The decision of this court was rendered and mailed on February 28, 1984. This application for rehearing was filed on March 26, 1984. Pursuant to La. C.Cr.P. art. 922, as amended by Act 451 of 1983 and effective August 30, 1983, an application for rehearing must be filed within fourteen days of the mailing of the notice of judgment and the opinion of this court. This application is not timely.

This rehearing is granted solely for the purpose of vacating our patent error ruling. After the decision was handed down, the trial judge below informed this court that the $50.00 was assessed not as a fine under LSA-R.S. 40:1805 but as costs under LSA-R.S. 40:1816(D), which authorizes a district court to assess $50.00 for felonies in each criminal action which results in a conviction, to be paid by the defendant and deposited into the Crime Victims’ Reparations Fund. Our patent error ruling was therefore in error. We accordingly vacate it and reinstate the trial court’s assessment of cost.

In all other respects, the rehearing is denied.

      . Art. 893.1. Use of firearm in commission of a felony; sentencing
      When the court makes a finding that a firearm was used in the commission of a felony and when suspension of sentence is not otherwise prohibited, the court shall impose a sentence which is not less than:
      (1) The maximum sentence provided by law, in the same manner as provided in the offense, if the maximum sentence is less than five years, or
      (2) Five years, in the same manner as provided in the offense, if the maximum sentence is five years or more.

        Imposition or execution of sentence shall not be suspended and the offender shall not be eligible for probation or parole, (footnotes omitted)


text:
    STATE of Louisiana v. Leonard MOORE.
    No. 83 KA 0931.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Charles V. Genco, Asst. Dist. Atty., Am-ite, for state-appellee.
    Kenneth F. Sarama of Baham & Anderson, Hammond, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

Defendant, Leonard Moore, appeals his conviction for simple burglary in violation of L.S.A.-R.S. 14:62. On appeal, he contends there is insufficient evidence to support a verdict of guilty. Alternatively, he argues that his sentence is excessive.

On September 10, 1982, at approximately 11:00 P.M., the Hammond police were called to the premises of Southern Pipe and Supply Company when a silent alarm alerted the police that their attention was required. The building from which the alarm was triggered is enclosed by a 6-7 foot cyclone fence topped with three strands of barbed wire.

Four officers arrived on the scene to investigate. Upon investigating the area from outside the fence, Officer Day noticed that the corner of the metal building had been pulled back to create a passageway. From this passageway, Day saw a black male exit the building. When Day hollered at the suspect, the suspect ran. Several of the other officers also saw the suspect in his flight. All the officers described the suspect to be a black male, approximately 5'10" to 5'11" tall, and 160-170 pounds, wearing a blue T-shirt and blue jeans.

Shortly thereafter, Officer Connelley was advised that the suspect was running in his direction. At that time, he heard something stick to the far east side of the fence. In response thereto, he went to the east side and began walking the fence line to determine the source of the sound. He noticed a clearing and walked up to the fence. Thereupon, he saw a negro male lying on the ground inside the fenced area. As he directed the flashlight on the subject’s face, the suspect fled.

No one was apprehended at the scene nor was any other suspect seen on the premises. Further, investigation thereof failed to reveal any theft. However, in a grassy area to the east of the building, police discovered a lone vehicle. Because the engine was warm, the officers ran a license check. This check revealed that the car was registered to Leonard Moore, defendant herein. The police “staked out” the car for about another hour but no one returned for it.

From the license check, the driver’s license number of the car owner was obtained. A driver’s license check was then run to obtain a physical description of the registered owner, Moore. This description matched the police officer’s description of the suspect at the scene.

Pursuant thereto, Moore was requested to come to the station for questioning. After being advised of his rights, he was questioned, but denied any knowledge of the burglary. Upon request, he consented to having his photograph taken. Once obtained, it was placed in a “mug book” with numerous other photographs. From this book, Officer Connelley identified the defendant as the suspect he saw on the .premises on the night in question. Further, Officer Connelley made a positive identification of defendant at trial.

At trial, defendant testified that he had not been on the premises. While he admitted parking his car in the grassy area, he explained that he had gone to a barroom and, ultimately, walked home in a highly intoxicated condition. Defendant had two witnesses who testified that they had been with the defendant that evening at places other than the scene of the crime. However, we note that their testimony relates to a time period prior to the time of the crime and to locations not inconsistent with the defendant being at the crime scene at the time alleged. Defendant’s wife testified that he was home by 11:15 P.M.

Defendant was subsequently convicted of simple burglary and sentenced to six years at hard labor.

I.

Defendant’s assignment of error as to the insufficiency of evidence to convict is based on two factors: (1) an incorrect identification of defendant as the suspect, and (2) failing to prove an essential element of the crime; i.e., the intent to commit a felony or theft.

A conviction cannot stand unless, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could conclude that the State proved the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); State v. Graham, 422 So.2d 123 (La.1982), rehearing denied Dec. 10, 1982, appeal dismissed for insufficient federal question, — U.S. -, 103 S.Ct. 2419, 77 L.Ed.2d 1309 (1983). Also, in order to support a conviction based upon circumstantial evidence, the evidence must exclude every reasonable hypothesis of innocence. LSA-R.S. 15:438; State v. Graham, supra.

(1)

After reviewing the evidence under the above standards, we find that the State proved that defendant was the black male the officers saw at the crime scene. Several officers testified as to the suspect’s physical description, which description fits the defendant. Further, the suspect was seen exiting the building and running in Officer Connelley’s direction. Shortly thereafter, Officer Connelley, upon hearing a noise and investigating, saw the suspect face-to-face. Later, that officer made a positive out-of-court identification of defendant as the person he saw at the crime scene. Furthermore, Officer Gonnelley made a positive in-court identification of the defendant as that same person.

(2)

To be guilty of simple burglary, the defendant must have had the specific intent to commit a felony or theft therein at the time of his unauthorized entry. See L.S. A.-R.S. 14:62; and State v. Marcello, 385 So.2d 244 (La.1980). Specific intent is defined as that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. L.S.A.-R.S. 14:10.

From the totality of the circumstances, we find that not only could any rational trier of fact conclude that the defendant had the requisite intent to be guilty of simple burglary, but that the evidence thereto excludes every reasonable hypothesis of innocence.

The offense occurred at 11:00 P.M. on a Friday night. The record shows that defendant’s car was parked in a weeded field a short distance from the crime scene. There was a 6 to 7 foot fence surrounding the building which defendant had to negotiate in order to enter the premises. Further, the corner of the metal building was pulled back to create a passageway to enter and exit the building. A silent alarm guarding the office area was triggered inside the building. Defendant was discovered on the premises by the police. Further, the defendant ran from the police officers and ignored their commands to stop.

We note that this case is factually distinguishable from State v. Merrill, 442 So.2d 713 (La.App. 1st Cir.1983), decided November 22, 1983, wherein the defendant entered a house, walked through several rooms and exited the house. After exiting, the defendant knocked on the door and asked for directions. The alleged offense occurred during the day. Further, there was no forced entry nor flight from the area by defendant after he was discovered at the house.

II.

Defendant next alleges his sentence of six years at hard labor is excessive. We note that this sentence is within the statutory limits provided upon conviction of this crime. However, a sentence imposed within the statutory limits may still violate Louisiana’s prohibition against excessive sentences. See La. Const. Art. I, Section 20; and State v. Sepulvado, 367 So.2d 762 (La.1979).

The appropriate criteria by which to measure whether a sentence within statutory limits is nevertheless excessive are the guidelines provided in La.C.Cr.P. art. 894.1. These guidelines are applicable whether ex-cessiveness is claimed by reason of the length of sentence or because the sentence specifies confinement rather than less onerous sentencing alternatives. State v. Sep-ulvado, supra.

We recognize that the trial court considered that this was defendant’s first felony offense and that he is married and the father of three children. Further, in compliance with La.C.Cr.P. art. 894.1, the trial court opined that a lesser sentence would deprecate the seriousness of the crime. However, we are also aware that the trial court considered several factors against defendant which we believe are not appropriate for consideration in imposing sentence.

The first factor was defendant’s testimony that he was out drinking and attempting to see another woman. The trial court felt that this countered defendant’s appearance as a good family man. While this court does not necessarily condone such actions by defendant, we do not find that such testimony rebuts other trial evidence that defendant resides with and supports his wife and three children. Such being the case, it is our belief that defendant’s imprisonment would entail excessive hardship to his dependants. Secondly, the trial court considered the testimony of the manager of the premises burglarized regarding the numerous burglaries which have occurred there in the past. The trial court viewed this testimony as indicative of “the expensive steps which are required to be taken now-a-days to prevent the numerous burglaries which are occurring in this parish which has [sic] led to great loss of property as well as expenditure of money on behalf of the citizens of the parish.” It is important that there is no evidence to infer or connect the defendant with any of the previous burglaries to the premises in question or in the parish at large. For this reason, it was inappropriate for the trial court to consider such testimony. A defendant is to be sentenced according to the particular facts and the individual circumstances of his case. See State v. Dunns, 404 So.2d 1235 (La.1981).

The pre-sentence investigation report shows that defendant is a first time felony offender and had no juvenile record whatsoever. His adult record reveals only automobile and traffic-related convictions. At the time of defendant’s arrest for the instant offense, he was working as a laborer for a bag company in Hammond and had been so employed for two years prior thereto. According to the evidence, nothing was taken as a result of the burglary and no restitution was due the complainant.

We note that defendant’s conduct neither caused nor threatened any serious harm to persons. The offense occurred at 11:00 P.M. when there would be no one on the premises. Defendant was not armed.

In light of the above, we cannot agree with the trial court that a lesser sentence would deprecate the seriousness of the crime. The imposition of a prison sentence of six years at hard labor herein is so inappropriate that it represents a clear abuse of the trial court’s sentencing discretion which violates defendant’s right against excessive punishments.

There is nothing in the record to indicate that the defendant would not respond favorably to a far less onerous sentence or to probation and/or even a suspended sentence. Further, circumstances indicate that any sentence, suspended or not, should not be of an extended nature and should be to the parish prison rather than the Department of Corrections.

For the foregoing reasons, the conviction is affirmed, the sentence of the trial court is set aside, and the case is remanded for re-sentencing in accordance with the views expressed herein.

CONVICTION AFFIRMED, SENTENCE SET ASIDE, CASE REMANDED FOR RE-SENTENCING.

COLE, J., concurs in affirmation of conviction but dissents from setting aside the sentence and remanding for re-sentencing.

      . We note that while an individual’s flight does not in and of itself indicate any guilt, it can be considered as circumstantial evidence that one has committed an offense. It is admissible into evidence as relevant to show consciousness of guilt. State ex rel. Womack v. Blackburn, 393 So.2d 1216 (La.1981), rehearing denied, March 2, 1981.

      . Under L.S.A.-R.S. 14:62, whoever commits the crime of simple burglary shall be fined not more than two thousand dollars, imprisoned with or without hard labor for not more than twelve years, or both.


text:
    STATE of Louisiana v. Gary BENOIT.
    No. KA 83 1235.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 13, 1984.

      Stephen E. Caillouet, Asst. Dist. Atty., Thibodaux, for plaintiff-appellee.
    F. Smith Knobloch, Thibodaux, William J. Guste, Atty. Gen., New Orleans, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.

      . La. Const.1974, Art. 5, § 5(E) provides, in pertinent part, that the Supreme Court shall have exclusive supervisory jurisdiction of all criminal writ applications relating to convictions and sentences imposed prior to July 1, 1982. We note appellant herein was convicted and sentenced on August 31, 1978.

   SAVOIE, Judge.

This court, ex proprio motu, issued a show cause order as to why this appeal should not be dismissed due to lack of appellate jurisdiction.

On August 31, 1978, appellant, Gary Be-noit, pled guilty to a charge of distribution of phencyclidine in violation of Louisiana R.S. 40:968. After waiver of the statutory delay, appellant was sentenced to ten years at hard labor. Thereafter, on April 11, 1983, appellant filed an “Application for Post-Conviction Relief” and a “Motion for Review and Correction of an Illegal Sentence.” On August 23, 1983, the trial judge rendered judgment, following an evi-dentiary hearing, denying both the application and motion. Appellant appeals this judgment. However, this judgment is non-appealable.

As to that portion of the judgment dismissing appellant’s “Application for Post-Conviction Relief,” La.C.Cr.P. art. 930.6 provides that no appeal lies therefrom. The proper procedure therefor is by application for supervisory writs. L.S.A.C.Cr.P. art. 930.6.

As to the portion of the judgment denying appellant’s “Motion for Review and Correction of an Illegal Sentence,” we recognize that this is not a final judgment. For this reason, it is not appealable. La.C. Cr.P. art. 912. Again, appellant’s proper remedy for raising any error relating to the ruling on the motion is by application for supervisory writs. L.S.A.-C.Cr.P. art. 912.-1(C).

Appellant’s argument that this matter is appealable under C.Cr.P. art. 912.1(B) is without merit. While it is true that appellant was entitled to a jury trial on the charge for which he was convicted, he was not entitled to a jury trial on his application and motion. See La. Const, of 1974, Art. 1, § 17. Appellant is under the misapprehension that he has taken an appeal of the sentence imposed on him. While it is true that appellant could apply for a delayed appeal and, if granted, raise any issues as to his sentence therein, he has not done so herein.

Although appellant does not have the right of appeal herein, under the Supreme Court’s recent ruling in State v. Banks, 444 So.2d 1243 (La.1984), we will treat defendant’s timely appeal as an application for a writ of review. In accordance therewith, we assign the following number KW(A)83 1235. Further, we grant said writ application for the limited purpose of transferring same to the Supreme Court under La. Const.1974, Art. 5, § 5(E).

APPEAL CONVERTED TO WRIT NO. KW(A) 83 1235.

APPEAL DISMISSED.

WRIT GRANTED SOLELY FOR THE PURPOSE OF TRANSFERRING SAME TO THE SUPREME COURT.

      . L.S.A.-C.Cr.P. art. 912.1(C) provides, in pertinent part, that in all other cases not otherwise provided by law, the defendant has the right of judicial review by application to the court of appeal for writ of review.

      . L.S.A.-C.Cr.P. art. 912.1(B) provides, in pertinent part, that the defendant may appeal to the court of appeal from a judgment in a criminal case triable by jury.