text:
    Linda FRIX v. SUPREME CATERING SERVICE AND AETNA INSURANCE COMPANY.
    No. 83-CA-610.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Russell L. Breckenridge, New Orleans, for plaintiff-appellant.
    Paul W. Grego, Gary Heilman, New Orleans, for defendants-appellees.
    Before CHEHARDY, KLIEBERT and BOWES, JJ.
   BOWES, Judge.

Plaintiff appeals a judgment of the district court dismissing her suit for further workman’s compensation benefits following an accident which occurred subsequent to her work-related injury. We reverse and remand.

Ms. Linda Frix, plaintiff-appellant, was originally injured on September 17, 1981. On that date, while in the course and scope of her employment for Supreme Catering Service, Ms. Frix slipped on a loose tray and fell, sustaining an injury which was initially treated at the emergency room of East Jefferson General Hospital. She was then referred to her own physician, Dr. Bruce Razza, for further treatment.

The cross-examination, at trial, of Dr. Razza produced the following colloquy: .

Q. I have a copy of the Emergency Room Report which was supplied to the Court in response to a subpoena duces tecum to the hospital and I would ask that you refer to that. Could you please read to us what it says by brief history—
Yes, sir, the brief history in the accident or emergency room visit states that the patient states she fell and hurt the hip of her right side and her right shoulder. That was the history.
MR. HELLMAN:
Q. As far as the physical findings of concern, can you make out what that says?
A. Tender at hip area and something on foot out—
Q. You can’t really make that out?
A. No, and then lumbo-sacral area tender and then ...

On Mrs. Frix’s first follow-up visit to Dr. Razza, he diagnosed her injuries as an “acute lumbosacral strain, secondary to fall, contusion of the right hip [with] [n]o signs of sciatica.” Plaintiff did not report, specifically, pain in her right foot to her physician until a follow-up visit on October 27, 1981. Thereafter, she continued to complain of pain in her right foot and, finally, on December 15, 1981, Dr. Bruce Razza (her physician) diagnosed her foot problem as Morton’s neuroma. Surgery to correct the condition took place on January 5, 1982. The surgery was deemed a success and, on February 18, 1982, Ms. Frix was discharged to return to full duty at work. During the February 18th visit, plaintiff complained of burning and numbness in her foot, which her physician attributed to her surgery.

Ms. Frix never returned to work, so we do not know if she was able to work prior to her second injury, but, two weeks later, on March 4, 1982, Ms. Frix returned to Dr. Razza complaining that she was once again experiencing acute pain, similar in nature to that which she had suffered prior to her surgery. The following testimony by Ms. Frix, on direct, is, in our opinion, the pivot on which this case hinges and, therefore, although rather long, is included:

Q. Would you recount the events prior to Mardi Gras day?
A. I seen Dr. Razza on the 18th of February and he told me that he felt that I could go back to work on the 24th if I didn’t have any trouble with my foot. I asked him about walking, going to some parades, would that be alright and he asked me about the walking I had done, how sore it would be and instructed me not to fall. I went Saturday and walked a couple of hours and my foot started hurting and started swelling on me. We waited for another couple of hours. I got up walked some more and it kept hurting me and I had my pain pills with me and I went home. Joe tried to call Dr. Razza.
Q. Joe is your husband?
A. Yes. Through his answering service, to see what to do so I didn’t know if it was normal for it to swell after I had been on it that much. We couldn’t get a hold of him so we took the kids Sunday afternoon and a couple of hours I had to sit down. I couldn’t walk on it. It was hurting so bad so we let the kids watch a couple of more parades and we went home.
Tuesday, Mardi Gras day we went down about eight o’clock all day. I had to stop every two or three hours. It was hurting, it was swelling and I took my shoe off because the shoe felt so tight. It was swollen. We sat down. I got back up after taking a pain pill after eating. I went back up with my children. It started hurting again. It was still swollen. Later on that afternoon the policeman was pushing to the back. I was standing over here on St. Charles when the people came back, a guy was in front of me, backed up on me when he went to step on my foot, when I felt that something was on my foot, I moved my foot. He did not come down hard on my foot because I jerked it out from under him. Wednesday morning when I got up my foot was swelling and Joe called Dr. Razza and he was in surgery. Joe called him Thursday. He told me to do the hot soaks, elevate it and get on my crutches if I need to and come into his office.
Q. When were your workman’s compensation benefits terminated?
A. February 25th.
Q. Have you been continuing to see Dr. Razza since that time?
A. Yes.

At the close of the trial, counsel for both sides stipulated that if plaintiff called Mr. Steve Roth to testify he would testify that he was with Mr. and Mrs. Frix on Mardi Gras day and that Mrs. Frix’s foot was swollen prior to the time her foot was stepped upon. This stipulation clearly buttresses the testimony of Mrs. Frix and, when considered along with her testimony, indicates that even though she was discharged by her physician on February 18, 1982, she had not completely recovered from her injury.

Dr. Bruce Razza, Ms. Frix’s treating physician, testified as follows:

Q. So it is possible then that this injury could have been there all along, that the present condition that she has, could have been there and could have been masked by the treatment that she has received for the Morton’s neuro-ma?
A. It certainly is possible ... it certainly is possible that I could have just missed the proximal joint from the beginning and that it got better. In other words, the overall effect of the ster-iods, I treated it for one area, but the nearby area benefited too. That is possible. Again, it is not the way I see it, but I could have missed it. Yes, sir.
Q. Dr. Rauchwerk, referred to a term causalgia. Could you explain that term?
A. Causalgia has to deal with continued pain from nerve irritation. A situation applicable to this if you excise the area of the nerve that is swollen and irritated the area of the neuroma, part of the nerve ending proximal that is further on up closer to the foot could still be triggering all pain messages to the brain. If there is still irritation to it and again that could have been a component of her problem, but most of her picture started localizing in the joint in the tarsal, metatarsal joint and it sort of left that area so that area was again flared up....
Q. Now I realize when you are talking about causalgia, this causalgia is a smaller percentage. It is a low percentage of patients that have this sort of recurrence after the excision of the neuroma, but it is a possibility in this case. She did in fact, have this causal-gia?
A. Yes, sir, in other words, you know one out of twenty people or so can have this continued irritation to the nerve, even following a well done operation with everything going fine....
Q. So even if she did suffer another insult as she did on Mardi Gras day that this condition could possibly have developed any way even without that insult?
A. Well it is possible, yes, sir, ...

In Field v. Winn Dixie, Inc., 427 So.2d 616 (La.App. 5th Cir.1983), this court stated:

The plaintiff (employee) in workmen’s compensation litigation bears the burden of establishing the causal relationship between the disability and the employment accident by a reasonable preponderance of the evidence. Prim v. City of Shreveport, 297 So.2d 421 (La. 1974). Nevertheless, it is not necessary for the experts to determine the exact cause of the disability in order for the employee to recover. The complaint need show only by a preponderance of the evidence that the work accident caused the disability. Allor v. Belden Corp., 393 So.2d 1233 (La.1981); Lucas v. Insurance Company of North America, 342 So.2d 591 (La.1977). "... furthermore, medical testimony ‘must be weighed in the light of other credible evidence of a nonmedical character, such as a sequence of symptoms or events in order to judicially determine probability’ ....” Schouest v. J Ray McDermott & Co., 411 So.2d 1042 (La.1982).
An employee’s disability will be presumed to have resulted from an employment accident if before the accident the employee was in good health, but commencing with the accident the symptoms of the disabling condition appear and continuously manifest themselves, provided that the evidence shows that there is a reasonable possibility of causal connection between the accident and the disabling condition, [emphasis ours]

Other Louisiana courts have also recog-, nized this presumption. See Thum v. MRO Services Co., Inc., 430 So.2d 1298 (La.App. 1st Cir.1983); Oalmann v. Brock and Blevins Co., Inc., 428 So.2d 892 (La.App. 1st Cir.1983) (different panel); and Martin v. Rollins Services, Inc., 424 So.2d 429 (La.App. 4th Cir.1982).

We are aware of the holding by our Supreme Court in Haughton v. Fireman’s Fund American Ins. Co., 355 So.2d 927, that “[i]f an accident causes a disability from which a workman would have recovered except for further disability produced by a separate, intervening cause, there is no liability for compensation beyond the disability produced by the job-connected accident.” Obviously, this is the case on which the learned trial judge relied (he quoted it), holding that this Mardi Gras day accident was a separate intervening cause of her present disability, a fact which Haughton, supra, holds must be proven by the employer because the above presumption, which is rebuttable, has shifted the burden back to them. In Haughton, the employer failed to maintain this burden and the court awarded compensation. We feel that the same result is present in this case.

In the case before us, the combination of (1) plaintiffs testimony; (2) the stipulated testimony of Mr. Roth; and (3) the testimony of Dr. Razza convinces us that Mrs. Frix had not completely recovered before the Mardi Gras incident and, more importantly, that there was no evidence that she would have fully recovered and been able to return to work except for the Mardi Gras day accident.

The foregoing facts, along with the rule that if an employee was symptom-free before a work-related accident but after the accident symptoms commence and continue without interruption, then the employee’s disability will be presumed to have resulted from the accident, leads us to the inescapable conclusion that the astute trial judge misconstrued the effect of Haughton here and was clearly erroneous in his conclusions that the plaintiff’s present condition is due to the Mardi Gras day incident as an intervening cause.

Finally, we find that there was a reasonable basis on which the employer and its insurer could have reached the conclusion that Ms. Frix’s original disability had ended. Considering the occurrence of the second accident, we do not find that the defendants were arbitrary or capricious in their refusal to continue to pay plaintiff benefits. Therefore, we refuse to assess penalties and attorney fees in this case. However, we do assess defendants-appel-lees for the costs of this appeal.

Accordingly, for the reasons stated above, we reverse the judgment of the trial court and remand for a determination by the trial court of plaintiff’s extent of disability, amount of compensation due, and further proceedings consistent with the holding herein.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: BOWES, Judge.

license: Public Domain

text:
    Weldon FROMMEYER, et al. v. ST. CHARLES PARISH, et al.
    No. 83-CA-593.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Wilmer C. Hinrichs, New Orleans, for plaintiffs-appellees.
    Steven F. Griffith, Destrehan, for St. Charles Parish, et al., defendants-appellants.
    William F. Wessel, New Orleans, for American Waste & Pollution Control, inter-venor-appellant.
    Before CHEHARDY, BOWES and GAU-DIN, JJ.
   BOWES, Judge.

Defendants St. Charles Parish and American Waste and Pollution Control Company appeal from a judgment of the District Court granting a preliminary injunction to plaintiffs. The original motion for appeal' was filed by St. Charles Parish, American Waste, and Jefferson Disposal Company, Inc., but was granted by the trial judge only as to the Parish because the others were “not cast in judgment.” A supplemental motion for appeal was filed by American Waste and signed by the court. Plaintiffs filed a motion to have Jefferson and American Waste dismissed from this appeal, arguing that the petition for intervention filed by these parties was not served on them.

Plaintiff raised an additional point at oral argument that American’s supplemental motion for appeal was not timely.

Addressing these issues in order, La.C. C.P. article 1033 permits the filing of an incidental demand, after an answer is filed, with leave of court. Page 201 of the record contains a judicial order permitting the intervention of American Waste, signed by the trial court. It is not evident from the record whether service was ever effected; however, lack of service is irrelevant as to the efficacy of the order, although the question of service may eventually affect the validity of any judgment on the merits regarding American Waste.

No such similar intervention was filed by Jefferson Disposal. The supplemental motion for appeal filed by American Waste was timely. We find, from the pleadings on record, that American Waste is properly before the trial court as a party and is a party on appeal. Jefferson Disposal is not a party before us at the present time for purposes of this appeal.

Plaintiffs filed a petition for a declaratory judgment and injunction on April 26, 1983, praying that certain ordinances, resolutions, and contracts, passed by the St. Charles Parish Council be declared illegal and null, and that the Parish be enjoined from further implementation of these contracts. A temporary restraining order was obtained, and extended through July 15, 1983, at which time a preliminary injunction was granted. It is from this judgment that defendants have appealed.

Briefly, plaintiffs are persons and firms who have been providing solid waste garbage service to the residents of St. Charles Parish for some years. Two of the plaintiffs are identified as electors and taxpayers of St. Charles. The complaint alleges that the Parish Council illegally attempted to award contracts for garbage collection throughout the Parish to two large companies, the defendants American Waste and Jefferson Disposal. The petitioners requested that the court issue a declaratory judgment as to the validity of these contracts — specifically, did the Parish Council have the authority to advertise and accept bids for the contracts, and ultimately to award such to defendants? The council is accused of certain “ultra vires” acts in passing ordinances for bids, and the questions are raised under the Louisiana State Constitution of 1974, Louisiana Revised Statutes, the Home Rule Charter for St. Charles Parish, and even under certain federal laws.

At the rule for the preliminary injunction, the court found that the plaintiffs were persons with a vested interest in the matter, “in that before any particular type of hearing can be had on the suit on the law side, the equity determines that the injunctive relief is proper for them to file in an injunctive-type situation.”

We take this to mean that the trial judge found irreparable injury would result to the plaintiff in the absence of an injunction.

Under Louisiana Code of Civil Procedure article 3601, a party may obtain injunctive relief in cases where irreparable injury, loss, or damage may occur. Under article 3609, the court may render its decision on verified pleadings or supporting affidavits, or it may take proof. In the present case, the court elected to decide the issue on affidavits and pleadings. Counsel were duly notified in writing. The parties filed affidavits, and plaintiffs included in their exhibits the verified petition.

Plaintiffs alleged in the verified petition that the effect of the alleged ultra vires acts of the Council, the implementation of the contracts with defendants, would be to destroy their businesses and adversely affect their income. We find no manifest error or abuse of discretion in the trial judge’s holding with reference to the injunction. The irreparable injury requirement for the preliminary injunction was satisfactorily met by the affidavits and verified petition of plaintiffs that the businesses of plaintiffs would be destroyed or permanently substantially reduced unless the injunction was granted.

The injunction thus acted to preserve the status of the parties as plaintiffs continue to execute their contracts on an individual basis with the parish residents.

A preliminary injunction is a procedural device, interlocutory in nature, designed to preserve the existing status pending a trial of the issues on the merits of the case. The principal demand is determined on its merits only after a full trial under ordinary process, where the parties have not expressly agreed to submit the case for final decision at the hearing on the rule for the preliminary injunction. Smith v. W. Virginia Oil & Gas Co., 373 So.2d 488 (La.1979).

Since the case must be remanded for trial on the merits of the petition for declaratory judgment, and no evidence was taken that would afford both sides to properly present their arguments, we are unable to make a decision on the various other issues raised. Indeed, these issues are not even before us on this appeal. They may receive appropriate review after final judgment on the principal demands. Smith, supra.

For the reasons assigned, the judgment of the trial court granting the preliminary injunction to plaintiffs is affirmed. The case is remanded to the district court for further proceedings on the principal demand and for a hearing on the issuance of a permanent injunction.

All costs of appellate proceedings to date are assessed against defendants-appellants.

AFFIRMED AND REMANDED TO DISTRICT COURT.


text:
    STATE of Louisiana v. James E. JOHNSON.
    No. 83-KA-446.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      William C. Credo, III, Gretna, for plaintiff/appellee.
    Joseph Montgomery, I.D.B., Gretna, for defendant/appellant.
    Before BOUTALL, BOWES and GRIS-BAUM, JJ.
   BOWES, Judge.

Defendant, James E. Johnson, a/k/a Ray Vaughn, was charged by a Bill of Information filed April 13, 1981, with a violation of La.R.S. 14:64 (armed robbery). Following a jury trial on September 28 and 29, 1982, defendant was found guilty as charged, and, on Friday, October 16, 1982, he was sentenced to twenty years at hard labor, without benefit of parole, probation, or suspension of sentence. From that conviction and sentence, defendant appeals. We affirm both the conviction and the sentence.

In the early morning hours of March 24, 1981, Margaret Davidson was on duty as a cashier in the Time Saver Store located at 401 Lapalco Boulevard, on the westbank of Jefferson Parish.

At approximately 2:00 a.m., David Scales, the brother of Ms. Davidson, who was on his way to work, stopped in the store to pick up a few items and to talk to his sister. While Mr. Scales was in the store, two men entered, made a small purchase, and left. Approximately fifteen minutes later, the same two men returned; both were armed. One of the subjects approached Mrs. Davidson and her brother, Mr. Scales, at the cash register, while the other remained near the entrance to the store. The subject at the cash register forced Scales to the floor and put his knee on Scales’ back, while the other did the same to a customer, Leon Robinson, who had entered the store. Mrs. Davidson was ordered to remove the money from the cash register and safe. She put approximately $117.00 in bills and change into a paper bag and gave it to the man holding the gun on her brother. Scales’ wallet was also removed from his pocket and the robber at the entrance took a wallet containing $10.00 from the customer. The men then fled from the store.

After they left, the police were called and a description of the subjects, obtained from the victims, was broadcast. Officer Al Penouilh of the Jefferson Parish Sheriff’s Office, while canvassing the area, was flagged down by a man on a motorcycle who advised him that there was a suspicious vehicle in the neighborhood, in which two men were sitting. Sergeant Bolser and Lieutenant Dorsey, also of the Jefferson Parish Sheriff’s Office, responded to Penouilh’s call.

When the officers arrived on the scene, they observed a white 1976 Pontiac parked on the corner of Baywood, facing the dead-end section of the street. Since there did not appear to be anyone in the vehicle, the officers spotlighted the area. At that time, in response to a voiced command, one subject alighted from the passenger side of the car and, after several more verbal commands for anyone else in the vehicle to exit, the other subject exited on the driver’s side. The officers then approached the vehicle to ascertain that no one else remained therein. Upon looking inside, they saw money strewn all over the front seat; two revolvers were also observed.

The officers then realized that they may have apprehended the robbers since the subjects matched the broadcast description. Ms. Davidson and Mr. Scales were brought to the scene and both identified the defendant, James Johnson, a/k/a Ray Vaughn, as one of the perpetrators of the armed robbery. Both stated that it was he who had approached the cash register, held both of them at gunpoint, demanded money from the register and the safe, and had stolen Mr. Scales’ wallet. The defendant was arrested and the present prosecution was initiated.

Three sanity hearings were convened before the trial and, as a result of these hearings, on February 26, 1982, the defendant was adjudicated sane and competent to assist counsel in preparation of his defense.

The defendant was arraigned on September 28, 1982, immediately preceding his trial on the charge of armed robbery. A plea of not guilty and not guilty by reason of insanity was entered on his behalf. An additional sanity commission was requested at that time by the defense, but was denied by the court. Trial before a twelve-person jury commenced and, on the following day, September 29, 1982, a verdict of guilty of armed robbery was returned. Post trial motions filed by the defense were denied by the court on October 15, 1982, and, on that same date, the court sentenced the defendant to 20 years at hard labor without benefit of parole, probation or suspension of sentence. Although the state expressed the intent to bill the defendant as a habitual offender, no such proceeding appears in the record.

ASSIGNMENTS OF ERROR:

Assignment Number 1

By this assignment, the defense asserts the trial judge committed reversible error when he failed to grant the defendant’s Motion for a New Trial. The motion was based on an allegedly incorrect ruling during the trial, which was purportedly prejudicial to the defendant. During the presentation of the state’s case, the investigating officer, in response to the prosecutor’s question, testified as follows:

Q. Once you arrived at that location, what happened?
A. We observed a car, myself and Sergeant Bolser, and we observed no one in there. We shined a spotlight on the car and two subjects were lying down in the seats and started to get up. We approached the car and ordered them to get out of the car. We started to search them. That is when we noticed that they fit the description. When we searched the passenger of the car, the subject sitting there, that is when he stood up, you know, after we searched him and he said, “You got us, right, we pulled the job.

(R. pp. 428-429).

At this point, defense counsel objected and moved for a mistrial. The trial court denied the mistrial and admonished the jury to disregard the statement of the witness. The admonishment is excerpted:

Ladies and gentlemen of the jury, just before you were asked to leave the room the witness had testified and made a statement to the effect that the defendant allegedly said, “You got us, right, we pulled the job.” The Court is now admonishing you to disregard the statement in its entirety.

(R. p. 431).

“It is within the trial court’s discretion to grant a mistrial if it believes that an admonition is insufficient to assure the accused a fair trial when prejudicial remarks (not listed in C.Cr.P. art. 770) have been voiced, [citations omitted]. The proper remedy for a witness’ unsolicited references is admonition.” State v. Stephenson, 412 So.2d 553, 556-557 (La.1982). In the present case, as indicated above, the trial judge admonished the jury to disregard the remark.

Assuming arguendo, that the ruling of the trial court was in error, La.C.Cr.P. art. 851 provides in pertinent part:

The motion for a new trial is based on the supposition that injustice has been done the defendant, and, unless such is shown to have been the case the motion shall be denied, no matter upon what allegations it is grounded.
The court, on motion of the defendant, shall grant a new trial whenever: ...
(2) The court’s ruling on a written motion, or an objection made during the proceedings, shows prejudicial error; ...

The defense argument regarding a new trial is based on section (2) above, namely that the ruling of the trial court denying the mistrial shows prejudicial error.

The Official Revision Comment following Article 851 states:

(b) The first paragraph, taken almost verbatim from Art. 508 of the 1928 Code, stresses the basic requirement that the irregularities complained of in a motion for a new trial must have resulted in the doing of an injustice to the accused. In addition to the general requirement, it is particularly important to stress this harmless error concept in connection with grounds (2) and (4), irregularities or defects in the proceedings.

In the light of the substantial evidence against the defendant, we cannot conclude an injustice was done.

C.Cr.P. art. 921 provides, “[a] judgment or ruling shall not be reversed by an appellate court because of any error, defect, or irregularity, or variance which does not affect substantial rights of the accused.”

In deciding whether an error involving the denial of a federal constitutional right can be held harmless in a state prosecution, the Louisiana Supreme Court, in State v. Gibson, 391 So.2d 421 (La.1980), adopted the standard enunciated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) as the standard to be applied upon appellate review.

That test requires the reviewing court to determine “whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction” and to affirm the ruling only when “the court [is] able to declare a belief that (the error) was harmless beyond a reasonable doubt.” The court noted additionally “that the Chapman rule provides a helpful supplemental guide in cases involving only errors of state procedure or state law.” See State v. Gibson, supra at 428. Applying the Chapman standard of review to the instant case, we find, in view of the remaining evidence of guilt introduced at trial, that the action of the trial court in no way prejudiced the accused. See also State v. Shea, 421 So.2d 200 (La.1982).

We find that this assignment is without merit.

Assignment Number 2

By this assignment, the defense asserts the trial judge erred in sentencing the defendant to a term of twenty years at hard labor without benefit of parole, probation or suspension of sentence. It is argued that the trial judge failed to articulate the reasons for sentencing as mandated by C.Cr.P. art. 894.1 and that the sentence imposed is illegally excessive.

The trial judge, in delineating the reasons for the sentence imposed, observed that the defendant’s record “is one that indicates serious violations of law and order” and further noted that Vaughn was “engaged in a life of crime” and was “in and out of violations of the law for that period of time [20 years].” (Vol. II, R. p. 530). The trial judge additionally took cognizance of the fact that “the nature of the crime that was involved in this situation is one of the most serious crimes that we are faced with in society” and then detailed the circumstances surrounding the offense before imposing sentence.

C.Cr.P. art. 894.1, requiring the trial judge to consider certain factors in deciding whether to confine a defendant or grant probation, represents a legislative attempt to guide the trial judge in thoughtfully imposing an appropriate sentence under the facts and circumstances of a particular case. It was also designed to afford a reviewing court some insight into the reasoning process of the trial judge, so that the propriety of the sentence can be evaluated. State v. Robicheaux, 412 So.2d 1313 (La.1982).

In this case, the trial judge complied minimally with the mandates of Article 894.1. However, lack of full compliance does not automatically compel the reviewing court to remand if there is evidence in the record which clearly justifies the sentencing choice, or if there is no apparent abuse of discretion in imposing sentence. See State v. Brown, 412 So.2d 998 (La. 1982); State v. Price, 403 So.2d 660 (La. 1981); and State v. Robicheaux, supra.

The record reflects that the defendant was 49 years old at the time of the offense, single, with no dependents. (R. p. 21). Although urging insanity as a defense to his actions, two psychiatrists concluded, after testing and observation that the defendant was feigning mental illness. The many pre-trial motions and writs filed by the defendant confirm the trial judge’s assessment that Vaughn was engaged in a “life of crime.” The motions filed by the defendant recount a history of felony charges in California (for which he states he was found not guilty by reason of insanity) and mentions several pending charges in Jefferson Parish, including burglary and/or receiving stolen things and possession of Tal-win.' (R. p. 42 and 54). He additionally asserts a history of alcohol and drug abuse. (R. p. 100). The motions themselves demonstrate more than an average knowledge of the inner workings of a court system and corroborate the opinion of the psychiatrists that the defendant was a malingerer.

The offense evidenced a degree of planning and forethought, as the victims testified that Vaughn had previously entered the store, made a small purchase, and departed, before entering the store again to rob. The crime not only endangered the life of the cashier, but also the lives of two customers who had guns put to their heads by the defendant and his accomplice and were robbed of money, personal identification, and credit cards. Although charged with only one armed robbery, there were actually three victims placed in immediate jeopardy.

In State v. Telsee, 425 So.2d 1251 (La.1983), the Louisiana Supreme Court, in issuing guidelines which we are bound by law to consider in determining whether a sentence, by its length or harshness, is disproportionate to the underlying offense, stated:

There are several factors which are useful in determining whether the sentence by its excessive length or severity is greatly disproportioned to the underlying offense. Disproportionality analysis is cummulative and focuses on a combination of these factors, [citations omitted]
The initial elements to be analyzed in determining whether the punishment is constitutionally disproportionate are the nature of the offense and the offender....
Another factor is comparison of the defendant’s punishment with the sentences imposed for similar crimes by the same court and other courts....
Additional factors which have been considered are the legislative purpose behind the punishment and a comparison of the defendant’s punishment with how he would have been punished in other jurisdictions.

The offender is obviously no stranger to the justice system, having been arrested for several felonies, not only in this jurisdiction but others. The instant offense reflects a disregard for the lives and property of others, as the facts set forth above and by the trial court indicate. While the defense argued in mitigation that the defendant was not responsible for his actions, the evidence did not support this árgument. Nothing else in mitigation was either argued or found in the record.

A survey of recent armed robbery cases recently decided by the Louisiana Supreme Court reflects that the “average” sentence imposed was 27V7 years, over 7 years above the sentence imposed on the defendant herein.

The Louisiana Legislature has apparently deemed armed robbery to be a particularly serious offense and has adopted a wide sentencing range of from five to ninety-nine years. Such a wide range in possible sentences provides the trial court with great latitude in particularizing the punishment rendered to the particular offender.

The defendant’s sentence is in the lower range of that prescribed by the statute and below the “average” sentence affirmed by the Louisiana Supreme Court. Considering the circumstances surrounding the offense and the character and propensities of the defendant, Vaughn, we find the sentence to be reasonable and well below that which we would consider excessive.

For the reasons assigned, we affirm the conviction and the sentence imposed by the trial court.

AFFIRMED.

      . State v. Smith, 433 So.2d 688 (La.1983); State v. Williams, 420 So.2d 1116 (La.1982); State v. Tribbet, 415 So.2d 182 (La.1982); State v. Williams, 414 So.2d 371 (La.1982); State v. Walker, 414 So.2d 1245 (La.1982); State v. Tokman, 412 So.2d 561 (La.1982); State v. Jones, 412 So.2d 1051 (La.1982); State v. Robicheaux, 412 So.2d 1313 (La.1982).


author: CURRAULT, Judge.

text:
    STATE of Louisiana v. Wayne BRIDGES.
    No. 83-KA-442.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.

      John M. Mamoulides, Dist. Atty., Gerald Alonzo, William C. Credo, III, Asst. Dist. Attys., Gretna, for plaintiff-appellee.
    Joseph J. Tosh, Gretna, for defendant-appellant.
    Before BOUTALL, CURRAULT and DU-FRESNE, JJ.
   CURRAULT, Judge.

In a two count bill of indictment filed December 18, 1981, defendant Wayne Bridges was charged with armed robbery (LSA-R.S. 14:64) and second degree murder (LSA-R.S. 14:30.1). The second count was dismissed on October 5, 1983. Along with co-defendant, Kamurt Bridges, he was arraigned on January 20, 1982, at which time a plea of “not guilty” was entered on Wayne Bridges’ behalf. On September 8, 1982, following pretrial motions, a twelve-person jury was selected and trial commenced on the armed robbery count of the indictment. On September 10, 1982, the jury returned a verdict of guilty of armed robbery. Following post-trial motions, on November 22, 1982, the defendant was sentenced to twenty-five years at hard labor. It is from this conviction and sentence Wayne Bridges appeals.

At approximately 4:30 p.m. on the evening of November 20, 1981, three black males entered a Shoe Town off Jefferson Highway in Jefferson Parish, Louisiana. Present in the store were the store manager, Jesse Tate; two cashier-salesgirls, Martha Mitchell and Melanie Grego; a security guard, Mr. Desmeaux; and two unidentified stock persons. One of the black males moved toward the sock counter. When approached by the store manager, he asked if the socks came in any colors other than those displayed, whereupon Mr. Tate responded that he would go to the back of the store to get another box of socks. After Mr. Tate left the area, the subject then selected one pair of socks from the display and approached the cash register. The cashier, Martha Mitchell, rang up the sale. As she opened the register to deposit the two dollars proffered by Kamurt and give him change, he shoved her aside and grabbed the money from the cash drawer. While the subject was at the register, the two confederates, one of whom was identified as Wayne Bridges, disarmed the security guard. The three men, waving the stolen gun, then fled from the store.

Based upon the descriptions received from persons in the store and from Vincent Grego (husband of the cashier, Melanie), who observed the perpetrators standing in the street prior to the robbery, photo lineups were prepared. Wayne Bridges was included in one of the lineups not only because of his physical description but also because a Debbie Waldron named Wayne Bridges as a person she had seen approximately one week earlier break into a car in the Shoe Town area.

Wayne Bridges was identified by Melanie Grego and her husband, Vincent Grego. A third person was also identified but was found to have been in jail at the time of the robbery.

A subsequent search of Wayne Bridges’ residence revealed a “bebop” cap similar to that worn by one of the perpetrators of the offense.

At trial, alibi defenses were presented for both Wayne Bridges and his co-defendant. Mrs. Bertha Bridges, mother of both defendants, testified that on the day of the robbery Wayne Bridges had gone to Mississippi to attend a party. Both Pat Bridges, the sister of the defendants and Altha Rogers, a fifteen year old friend of Mrs. Bridges from Mississippi, corroborated the alibi testimony.

Defendant appeals the conviction, asserting the four assignments of error filed in an original and supplemental brief as follows:

(1) That the trial court committed reversible error in denying defendant’s motion for acquittal;

(2) That the trial court committed reversible error in sentencing the defendant to a term of twenty-five years at hard labor, which sentence is excessive;

(3) That the grossly incomplete trial transcript was submitted by the clerk of court, which created reversible error; and

(4) That the trial court committed reversible error in denying defense counsel’s motion for a new trial.

ASSIGNMENT OF ERROR NO. 1

Appellant failed to brief the first assignment of error. In this regard, the jurisprudence has consistently held that assignments of error neither briefed nor argued are to be considered abandoned. State v. Perry, 420 So.2d 139 (La.1982); State v. Williams, 418 So.2d 562 (La.1982); State v. Lewis, 416 So.2d 921 (La.1982). For this reason, Assignment of Error No. 1 will not be addressed.

ASSIGNMENT OF ERROR NO. 2

On the second assignment of error, defendant-appellant urges that the twenty-five year sentence for armed robbery is excessive. Appellant asserts that the trial court failed to follow the guidelines for sentencing set forth in LSA-C.Cr.P. art. 894.1 and that the sentence far exceeds the penalties imposed for similar offenses. As authority for this two-pronged argument, the defense cites State v. Sepulvado, 367 So.2d 762 (La.1979) and State v. Telsee, 425 So.2d 1251 (La.1983).

State v. Sepulvado, supra, and its progeny have held that although a sentence falls within statutory limitations, there can still exist a violation of the defendant’s constitutional right against excessive punishment. For that reason, the court held that it is incumbent upon the trial court to consider not only the aggravating factors of the offense, but the mitigating factors determined by a review of the defendant’s previous history and that the guidelines set forth in Article 894.1 provide the appropriate criteria by which a sentence can be reviewed for excessiveness even within statutory limits. On the other hand, State v. Lanclos, 419 So.2d 475, 477-478 (La.1982) held that a trial court’s failure to comply with Article 894.1 does not automatically render a sentence invalid as “compliance with its provisions is not an end in itself.” The court further held that remand is unnecessary if the record clearly shows an adequate factual basis for the sentence imposed. In State v. Telsee, supra, cited by appellant, the court determined that the goal of Article 894.1 is to tailor the sentence to the defendant and to the specific crime. The nature of the offender and his offense must be determined and then a comparison of this punishment with that imposed for similar offenses in the same jurisdiction and in others. However, the approach set forth in Telsee appears to have lost some predominance in the determination of an appropriate sentence.

In the decisions promulgated on September 3, 1983 by the Louisiana Supreme Court, three cases were reviewed for excessive sentence and the Telsee approach was not applied. In State v. Joseph, 437 So.2d 280 (La.1983), the defendant’s sentence of fifty years was affirmed after a review of the facts of the case and of the defendant’s prior history. The court found that the sentence was not excessive on its face and within the trial court’s discretion.

The two other cases deal with simple burglary and manslaughter; however, in the review of the sentence, the approach taken by the court was that the facts supported the sentence and there was no abuse of discretion by the trial court.

A twenty-five year sentence for armed robbery was upheld in State v. Square, 433 So.2d 104 (La.1983), although this was the twenty-three year old defendant’s first conviction since the court again found no abuse of the wide discretion afforded the trial court.

In State v. Smith, 433 So.2d 688 (La.1983), the court had before it the imposition of a sixty year sentence for a carefully planned and well executed armed robbery. The facts of the Smith case were, however, particularly heinous and the long sentence was justified in order to prevent the early release of what could be considered a master criminal.

One case in which the court vacated a twenty-five year sentence as excessive is State v. Robicheaux, 412 So.2d 1313, 1320 (La.1982). There the court found no reasonable basis for the twenty-five year sentence for armed robbery. Defendant, in that case, mugged a pedestrian for a gold chain and medallion which was yanked from the victim’s neck. The court noted that the robbery of a convenience store “has more earmarks of habitual criminal activity” then a mugging, and further took into account a more positive prior history reflected by the defendant.

In the instant case, as noted by the court, there appeared to be a systematic plan utilized by the three perpetrators. Upon their entrance, the three took their assigned positions. One moved behind the security guard, another near a clothing rack, but still behind the guard, and the third inquired as to colors of the socks on display. The male store manager was sent to the back of the store on a pretext of desiring a greater selection of socks. This left the female cashier, a saleswoman and the security guard in the immediate area. As the apparent spokesman for the trio feigned payment of merchandise for socks he had selected, the other two perpetrators overpowered the security guard, pulling his arms behind his back and relieving him of his weapon. After the gun had been taken, the spokesman shoved the cashier aside and grabbed the money out of the opened register. The three then moved towards the door with the defendant pointing the gun at the store personnel, thereby perfecting their escape with the money. The operation required a fair degree of teamwork and coordination and, therefore, the robbery could not have been accomplished without prior contrivance.

In addition, the trial court noted two previous arrests, resulting in a conviction for a reduced charge. The report of the pre-sentence investigation had also been reviewed by the trial court which apparently gave rise to his appraisal that the defendant exhibited minimal societal standards of behavior.

Appellant, however, submits that the trial court did not comply with Article 894.1 in that there was only speculation as to the defendant’s future behavior in the event that a “light sentence” were to be imposed. In its sentencing colloquy, the trial court states as follows:

“You have had some problems in your juvenile career. This was a deliberate plan to arm-robbery with three or four men involved.
“You have previously been arrested on simple battery and simple robbery charges and you have been convicted of — they reduced that charge to theft of under $100 and you did six months in parish prison.
“It is obvious to me, Mr. Bridges, that although your record indicates that you have some ability, that you don’t intend to use that ability in any way except for the way you see fit. If I give you a light sentence all it is going to do is put you back on the street earlier so that you can go about doing what you want to do. I believe that any minor sentence in this matter would not be commensurate with the crime involved in this planned armed robbery, a definite plan worked out for armed robbery.”

Our review of the record indicates that while the trial court may not have been in full compliance with LSA-C.Cr.P. Art. 894.1, we find no abuse of discretion in the imposition of the twenty-five year sentence. The guidelines of Article 894.1 should be referred to if the sentence appears to be excessive on its face in relation to the crime and the offender; however, this is not the situation in the case before us. Further, the record supports the sentence.

ASSIGNMENT OF ERROR NO. 3

By this assignment, the defense asserts that “a grossly incomplete transcript of the trial was submitted by the clerk of court which created reversible error.” However, Assignments of Error Nos. 3 and 4 were not filed in the district court, but rather were incorporated in a supplemental brief, filed November 30, 1983 (the day before oral argument); although a separate sheet labeled “Assignment of Errors” was also filed.

LSA-C.Cr.P. art. 844 provides:

“The party appealing shall designate, in writing, those errors which are to be urged on appeal. This assignment of errors shall be filed within the time specified by the trial judge, but not later than five days prior to the return date. A copy of the assignment of errors shall be furnished to the trial judge by the appealing party on the date such errors are filed.
“The trial judge may submit such per curiam comments as he desires.”

In State v. Lavene, 343 So.2d 185, 187 (La.1977), the Louisiana Supreme Court stated, “[ajssignments of error are designations in writing of the errors to be urged on appeal and are to be filed with the trial court, which may submit per curiam comments. LSA-C.Cr.P. art. 844 (1974). Except for ‘patent error’, the reviewing court may consider only errors so designated. LSA-C.Cr.P. art. 920(1).” (Emphasis added). See also State v. Spell, 399 So.2d 551 (La.1981) and State v. Spears, 350 So.2d 603 (La.1977).

Similarly, in discussing whether an assignment of error appearing for the first time in brief would be considered, Judge Edward A. Dufresne, Jr. in State v. Sonnier, 441 So.2d 359, 360 (La.App. 5th Cir.1983) stated:

“Since the defendant did not submit the issue by formal assignment of error, caselaw indicates the matter is not properly before the court for review. See State v. Spell, 399 So.2d 551 (La.1981) and State v. Spears, 350 So.2d 603 (La. 1977).
“Accordingly, pursuant to article 920, the excessiveness issue need only be considered if it falls into the category of ‘error patent’.”

Since the error related in Assignment of Error No. 3 relates to an issue not patent error, we cannot now consider it; however we find that the issue in Assignment of Error No. 4 is reviewable.

ASSIGNMENT OF ERROR NO. 4

In argument, appellant contends that an essential element of the crime of armed robbery was not proved at trial, i.e., that the robbery was committed while the defendant was armed with a dangerous weapon under LSA-R.S. 14:64. LSA-R.S. 14:64 states that “[ajrmed robbery is the theft of anything of value from the person of another or which is in the immediate control of another, by use of force or intimidation, while armed with a dangerous weapon.”

In State v. Melton, 296 So.2d 280 (La.1974), the defense appealed the denial of his motion for a new trial. He alleged that, although he was charged and convicted of attempted armed robbery, there was no evidence of the use of force or intimidation by the defendant at the time of the alleged offense as there was no evidence of the use of a dangerous weapon. The court held that:

“The first ground cannot be serious. The evidence established that the perpetrator of this offense walked up to a car in which three girls were seated and reached in and tried to snatch a purse. When the girls began rolling up the window and started the car, he pulled a pistol and shot one of the victims. Thus, both challenged elements of the crime were clearly established.” Supra at page 282.

The facts of Melton are analogous to those of the instant case in which the gun was not used for force or intimidation until after the money was in the possession of the perpetrators. Further analogy can be drawn from the aggravated burglary statute, LSA-R.S. 14:60, which provides that even if the offender arms himself with a dangerous weapon after entry, this would constitute an aggravated burglary. As explained at 77 C.J.S. Robbery § 25, citing various cases at common law:

“[T]he robber need not be armed at all times during the robbery in order to be guilty of robbery in the first degree, he is guilty of robbery in the first degree if he arms himself or becomes armed with a deadly weapon at any time during the progress of the taking or while the robbery is being perpetrated, [footnote omitted] and in this connection the crime of robbery is not completed the moment the stolen property is in the possession of the robbers, but may be deemed to continue during their attempt to escape, [footnote omitted].”

In the instant case, the three armed themselves not so much to take possession of the money, but to ensure that they could get away without resistance from the victims. As a result, the three victims were placed in jeopardy of greater bodily injury because the suspects were now armed. In our opinion, the money was taken by virtue of physical force or intimidation and the final step in the series of events or res gestae was perfected by the use of the gun. It should be noted that the security guard’s gun was not stolen to be pocketed by the defendants, but rather was implemented in the course of their crime. Thus, we conclude that the elements of armed robbery have been met.

Therefore, after a review of the law and the record, for the foregoing reasons, the conviction of armed robbery and twenty-five year sentence is hereby affirmed.

AFFIRMED.

      . State v. Laprime, 437 So.2d 1124 (La.1983)

      . State v. Smith, 437 So.2d 252 (La.1983)

      . LSA-C.Cr.P. art. 920 states, in pertinent part, that "[a]n error that is discoverable by a mere inspection of the pleadings and proceedings" shall be considered on appeal.


text:
    Robert A. OTTERMANN v. Thurman W. GANUS.
    No. 83-CA-529.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.
    Writ Granted April 2, 1984.

      Stephen J. Simone, Metairie, for plaintiff-appellee.
    Arthur C. Reuter, Jr., New Orleans, for defendant-appellant.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   CURRAULT, Judge.

This appeal arises from a judgment rendered against defendant-lessee, Thurman W. Ganus, in an action by plaintiff-lessor, Robert A. Ottermann, for possession of property pursuant to the terms of a lease agreement.

In September, 1967, Robert A. Otter-mann, lessor, leased to Thurman W. Ganus, lessee, certain commercial property briefly described as Lots 12 and 13, Square 1, Section “C” of Pontchartrain Gardens Subdivision. This property forms the corner of Veterans Memorial Boulevard and Lime Street in Jefferson Parish. As set forth in that lease, the primary term of the lease was for a period of fifteen (15) years and three (3) months, commencing October 1, 1967 and ending December 31, 1982, with an option to renew and extend the lease for ten years.

Subsequently, by written lease dated December 5, 1967, lessee, Thurman W. Ganus, subleased to PFC of New Orleans Inc. the above described property for a term commencing October 1, 1967, and ending December 31, 1982. The option to renew was retained by Thurman W. Ganus.

On January 14, 1975, Plantation Fried Chicken Corporation (formerly PFC of New Orleans, Inc.) transferred by assignment to A. Copeland Enterprises, Inc. all of its right, title and interest in and to the sublease from Thurman W. Ganus relating to the above described property.

That same date, Thurman W. Ganus subleased to A. Copeland Enterprises, Inc. the above described property for a term of ten years commencing January 1, 1983, and ending December 31, 1992 (the period of time covered by the above referred to option). Also on that date, at the request of the attorney representing A. Copeland Enterprises, Inc., Thurman W. Ganus signed a letter addressed to Mr. Robert A. Otter-mann exercising the ten year option referred to above. The original of that letter was retained by the attorney representing A. Copeland Enterprises, Inc. in connection with the matter.

On February 17, 1975, the option letter was mailed to Mr. Robert A. Ottermann, properly addressed, postage prepaid, certified mail, from the offices of the attorney representing A. Copeland Enterprises, Inc. In due course, the return receipt was received back at the offices of the attorney representing A. Copeland Enterprises, Inc. The return receipt, however, was returned unsigned.

At the end of the primary lease term, by letter dated January 1, 1983, Robert A. Ottermann advised Thurman W. Ganus to vacate the subject premises, alleging that the lease had expired by its own terms December 31, 1982, the ten year option having not been exercised.

Subsequently, Robert A. Ottermann filed a rule for possession of premises alleging that the lease had expired by its own terms on December 31, 1982, and that the ten year option was not exercised in accordance with the terms of this lease. Defendant, Thurman W. Ganus, answered the rule for possession and specifically pleaded as an affirmative defense that the ten year option in question had indeed been exercised on February 19, 1975.

The matter was tried on February 25, 1983. At that time, plaintiffs wife was substituted as party plaintiff due to Mr. Ottermann’s death a few days prior to trial. Following the trial, the court rendered judgment in favor of petitioner and against defendant, ordering eviction of the defendant from the leased premises. From that judgment appellant herein, Thurman W. Ganus, has perfected this appeal.

SPECIFICATIONS OF ERRORS

I.

The trial court erred in holding that the mailing of the letter exercising the option in question did not constitute written notification.

II.

The trial court erred in failing to apply the presumption that a letter properly addressed, posted and mailed was received by the addressee.

III.

The trial court erred in holding that the plaintiff rebutted the presumption of receipt of the letter by positive, direct evidence.

The issue in this case is whether the option was exercised under the contract terms by mailing a letter of intent to plaintiff properly addressed and stamped, with a return receipt returned unsigned by the intended recipient. Appellant concedes that the mailing in and of itself is not sufficient notice, but that the letter must be received by the lessor. Appellant, however, argues that there is presumption of receipt under the jurisprudence where the letter was properly addressed, stamped and mailed, and that the presumption is rebut-table only by direct evidence to the contrary.

Appellee argues to the contrary that there is no legal presumption of receipt arising upon the proper addressing, stamping and mailing of a letter under a contract; but, alternatively, if one exists, it was rebutted by the evidence.

The option clause reads as follows:

“As a further consideration for this lease, Lessor hereby grants Lessee an option to extend the period of this lease for a period of ten (10) years from the expiration of the term of the original lease, said extended term to be on the same terms and conditions and at the same rental as set forth herein. In the event Lessee desires to exercise this option to extend the lease for a period of an additional ten (10) years, Lessee shall notify Lessor in writing at least one hundred twenty (120) days prior to the expiration of this lease.”

Appellee has neither cited, nor have we found jurisprudence precluding use of the U.S. Postal System as a method of delivery where the contract is silent in that regard. The trial court relied on the case of Bankston v. Estate of Bankston, 401 So.2d 436 (La.App. 1st Cir.1981) to determine mailing did not constitute written notification. That case, however, involved contract terms which specifically established the sufficiency of notice by ordinary mail. Our review of the trial court’s reasons indicate that the court may have intended its remarks to reflect that mailing alone without further proof of receipt was insufficient under this contract. This proposition is conceded by appellant. It is the question of proof of receipt that is more to the point in the case herein.

Appellant, however, points to Moore v. Drexel Homes, Inc., 293 So.2d 500 (La.App. 4th Cir.1974) as dispositive of the question. There the issue was notice of intent not to renew a lease. The court held a lease silent as to mailing does not preclude it as an acceptable means of giving written notice as long as the letter was received. The court recognized that a presumption of receipt by proper mailing exists in law and stated:

“Moore testified that he personally mailed the letter in an envelope which he properly addressed to Drexel and which contained his return address and that his letter was not returned to him. He relies on New Orleans Silversmith, Inc. v. Wormser, 258 So.2d 592 (La.App. 4th Cir.1972), to invoke the presumption of due receipt by an addressee of a letter properly addressed, stamped and mailed.” At page 502.

Relying on McWilliams v. Reith, 149 La. 298, 88 So. 913 (1921), the court noted that the proper elements of mailing were, however, necessary to invoke the presumption. In McWilliams, the suit was for commissions and fees under a brokerage contract for the sale of property, and the question of notice related to a revocation of the contract.

The New Orleans Silversmiths’ case is in accord. Further, in 50 Am. Jur.2d, Landlord and Tenant, § 1184, the following statement was cited in Moore:

“Generally, whether a mailed notice of the exercise of an option to renew or extend a lease will be regarded as sufficient depends upon the terms of the lease and upon the surrounding circumstances. Usually it is held that where the lease is silent as to the means of communicating the notice of election to the lessor, or where it merely provides that written notice shall be given, such notice may properly be transmitted by mail within the specified time, although there is authority indicating that the lessee assumes the risk of a failure of the means of communication adopted, and that the presumption of delivery of a letter shown to have been placed in the mails is rebut-table. Thus, notice by mail has been held sufficient to satisfy the requirement of notice in writing, but generally a letter must be received by the lessor in order to constitute it effective notice.”

Our research has not uncovered any recent legal impediment to application of this principle, thus the remaining question is whether appellee produced sufficient evidence to rebut the presumption.

Appellant’s third assignment of error alleges that the rebuttable evidence must be direct and positive. The cases cited for this proposition, Skipper v. Federal Insurance Company, 238 La. 779, 116 So.2d 520 (1959) and Gulf Coast Inv. Corp. v. Secretary of Housing, 509 F.Supp. 1321 (E.D.La.1980) are inapposite, since they arose under statutes providing for cancellation of insurance policies. Nonetheless, the jurisprudence is clear that the evidence must be sufficient to rebut the presumption. On the other hand, appellee argues that, even granting the presumption, appellant assumes the risk of failure of the means of communication adopted.

The evidence reveals that the letter of intent to renew the lease was properly addressed, stamped and mailed. Further, appellant chose to send the document certified, return receipt. Appellant’s attorney in the matter testified the green receipt card was returned, but was unsigned contrary to instructions. He testified to some concern regarding that fact, but assumed that the letter was delivered and took no further action to determine whether or not it had, in fact, been received. It is the lack of the signature on the return receipt that appellee claims is the failure of the means of communication for which appellant assumes the risk. We agree.

Furthermore, in regard to the other evidence, appellee’s wife testified that the letter was never received by her or her deceased husband, even though she admitted that she did not open the deceased’s mail regularly. She further asserted that the letter was not in the file kept on the property in question. While the file did not include schedule of rents received, current insurance policies, deposits referencing utilities, list of expenses or the building plans and specifications, and was somewhat sparce in documentation, Mrs. Ottermann testified that this file contained any and all of the records kept on the property. On the other hand, appellee further admitted that throughout the years of the primary lease, appellant or its sublessee customarily mailed rental checks to Mr. Ottermann, and that those mailed items were always received without question.

It is well established in Louisiana, however, that factual determinations of the trial court are subject to review under the manifest error doctrine in Louisiana.

“ ‘Manifestly erroneous,’ in its simplest terms means ‘clearly wrong.’ ” Arcen-eaux v. Domingue, 365 So.2d 1330, 1333 (La.1978)

After reviewing the evidence, the trial judge determined that appellee did not receive the notice of intent to renew the option. Since the trial judge is in the best position to evaluate the testimony and credibility of the witnesses, we cannot hold that his findings were clearly wrong under these facts. Therefore, for the foregoing reasons and after a review of the law and the evidence, the trial court judgment is hereby affirmed, with appellant to pay all costs of this appeal.

AFFIRMED.

      . The original Exhibit Ganus No. 7, the green return receipt card, is not contained in the original record, apparently having been misplaced or lost. Ganus No. 7, however, is identical to plaintiffs Exhibit No. 4 which is contained in the record. The green return receipt card contained in the record where Ganus No. 7 should be located is actually the return receipt card of a letter sent on behalf of plaintiff in January, 1983, demanding that the premises be vacated.

      . A list of items in that file subpoenaed by appellant disclosed the following:
      (a) Certificate of insurance dated February 1, 1977 contained in an envelope showing a return address from Popeye’s Fried Chicken;
      (b) An empty envelope with a notation on the front, "copy of insurance policy for Popeye”;
      (c) An envelope bearing return address of Popeye's Fried Chicken containing a letter dated October 23, 1-975 postmark on the envelope of January 21, 1982;
      (d) An envelope addressed to Mr. Ottermann containing insurance binders for 1976;
      (e) Policy of insurance covering the period of time March, 1975 through March, 1978;
      (f) A one-page letter dated January 6, 1982 from an attorney representing Popeye's Fried Chicken regarding a tax receipt;
      (g) Another envelope with a return address of Popeye’s containing two slips of paper regarding a change of address and some apparent payment; and
      (h) An empty envelope with return address of Popeye’s Fried Chicken.


text:
    George M. GAMBINO v. William S. CULP, Individually and d/b/a Culp Capital Corporation.
    No. 83-CA-544.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.
    Writ Denied April 13, 1984.

      Laurence D. Rudman, Rudman, Howard, Laudumiey & Mann, New Orleans, for plaintiff-appellant.
    Ronald J. Vega, Kenner, for defendant-appellee.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   CURRAULT, Judge.

This appeal originates in Division “N” of the Twenty-Fourth Judicial District Court wherein the Honorable James L. Cannella denied the plaintiff’s rule to traverse garnishee’s answers. Plaintiff has appealed.

Plaintiff, George M. Gambino, is a judgment creditor of defendant, William S. Culp, individually and doing business as Culp Capital Corporation, by virtue of a judgment rendered by the trial court on April 8, 1982, in the sum of Twenty-Four Thousand Five Hundred Dollars ($24,500).

On September 28,1982, Bankers Trust of Louisiana advanced Mr. Culp Twenty-Five Thousand Dollars ($25,000) which was secured by a demand promissory note. On the following day, September 29, 1982, the sum of Twenty-Five Thousand Dollars ($25,000) was deposited in checking account Number 400-090-0 in the name of Mr. or Mrs. William S. Culp.

On October 8, 1982, Bankers Trust of Louisiana received a garnishment in the amount, of Twenty-Four Thousand Five Hundred Dollars ($24,500) on behalf of plaintiff, citing Bankers Trust as garnishee and ordering them, as per the writ of fieri facias, to turn over any funds they had in their possession belonging to defendant. Upon receipt of this garnishment, Bankers Trust made a set-off of the monies on hand in defendant’s account (No. 400-090-0) and applied them to the remaining balance on the demand note which was entered into September 28, 1982. A sum of Seven Thousand Forty-Five Dollars and Thirty-One Cents ($7,045.31) was removed from Account No. 400-090-0 and set-off; thereby leaving a zero balance in defendant’s account. On October 21, 1982, garnishee bank responded to garnishment interrogatories in the negative as to having any funds on hand to satisfy the judgment.

Plaintiff then moved to traverse garnishee’s answers, questioning the garnishee’s right to set-off. After a hearing on plaintiff’s rule, judgment was rendered in favor of garnishee denying the motion to traverse. Plaintiff now appeals that judgment.

The facts are not in dispute. The question is, does a garnishee bank have the requisite power or authority, once service has taken place, to apply compensation to any of the judgment debtor’s fund they may hold? The garnishee bank contends they do. The plaintiff-judgment creditor contends they do not.

Appellant, George Gambino, relies primarily on LSA-C.C. art. 2215, which reads:

“Compensation can not take place to the prejudice of the rights acquired by a third person; therefore, he who, being a debtor, is [has] became creditor since the attachment made by a third person in his hands, can not, in prejudice to the person seizing, oppose compensation.”

It is appellant’s assertion that when the garnishment interrogatories were served upon the appellee bank, he, as seizing creditor, acquired rights to the funds which were the subject of the set-off and that the exercise by the bank of its right of compensation against its depositor is clearly prohibited by Article 2215.

Appellee, Bankers Trust of Louisiana, argues that Article 2215 has no application, but that this particular set of facts is controlled by LSA-C.C. arts. 2207, 2208. Ap-pellee further asserts that the language contained in the note they held specifically gave them the authority to make a set-off against any monies Mr. Culp had on deposit with them. That language, so heavily relied upon, is as follows:

“Bank shall further have the right to accellerate the maturity of this promissory note when the Bank deems itself to be in an insecure position with regard to the repayment, performance or collateral hereunder. Upon any of said events of default, this promissory note and each and every other debt, liability and obligation to Bank of the parties hereto, and each of them whether direct or indirect, absolute or contingent, liquidated or un-liquidated, due or to become due, or whether or not existing hereunder, shall be forthwith due and payable without any notice, demand or putting in default whatsoever unless Bank shall otherwise elect.”

Appellee argues then that since the right to compensation (set-off) contractually existed prior to receiving notice of a pending garnishment, that upon being served with such garnishment, under the above stated contractual language and LSA-C.C. arts. 2207, 2208, they still had the authority to execute their right of off-set and withdraw the remaining'funds on account to be applied to the remaining indebtedness due them.

Our Supreme Court in First National Bank of Commerce v. Boutall, 422 So.2d 1159 (La.1982) has recently commented, at page 1161, that, “the garnishment procedure is designed as a streamlined method of obtaining funds of the debtor in the hands of a third party.” Seizure of the debtor’s funds (property) is an essential aspect of this procedure. While we recognize that this seizure is merely a constructive one, the intent nevertheless is to immobilize the funds (property) until it can be distributed by the court. May v. Market Insurance Company, 373 So.2d 763 (La.App. 3 Cir.1979). Seizure in a garnishment procedure is effective the moment of service of the garnishment interrogatories. Thus, the garnishee becomes the custodian of the judgment debtor’s funds (property) and is warned by the seizure that he should hold the funds until the court renders an order for the disposition of the funds. First National Bank, supra; May, supra.

In our situation, all property of William Culp in the possession of Bankers Trust of Louisiana was seized and immobilized the moment of service of the garnishment interrogatories upon Bankers Trust. Bankers Trust, simultaneously with service, becomes the custodian of William Culp’s property in their possession. As custodians, they were under a legal duty to maintain and preserve the seized property until such property could be turned over to the court.

To allow the custodians of seized property to avail themselves of compensation as provided by our Civil Code works contrary to the intended purpose of garnishment. The alienation of seized funds after the seizure has occurred is repugnant to the basic precepts of seizure. Bankers Trust violated their imposed duty to maintain and preserve the seized property when they, by their own initiative, utilized compensation.

Bankers Trust should have held the seized funds, answered the garnishment interrogatories, and then intervened in the garnishment asserting any claim that they might have as to the seizure. The court ordering the seizure is the sole authority for distribution of the seized funds. A garnishee bank does not have the requisite power, after service has taken place, to apply compensation to any of the judgment debtor’s funds they may hold.

Accordingly, for the above cited reasons, the judgment of the trial court denying plaintiff’s petition to traverse garnishee’s answers is hereby reversed and remanded for proceedings consistent with the views expressed herein. Costs of this appeal are to await final outcome of this matter.

REVERSED AND REMANDED.


text:
    LOUISIANA TRUCK PARTS, INC. v. W & W CLARKLIFT, INC.
    No. 83-CA-548.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Nel F. Veziña, Vezina & Associates, Gretna, for plaintiff-appellant.
    Henry F. Mestayer, Satterlee, Mestayer & Freeman, New Orleans, for defendant-appellee.
    Before BOWES, CURRAULT and GAU-DIN, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “N”, wherein the Honorable James L. Can-nella rendered judgment in favor of defendants and against plaintiff, denying its petition to annul a previous judgment between the same parties.

Defendant, W. & W. Clarklift, Inc., executed a rental agreement with plaintiff, Louisiana Truck Parts, Inc. In executing this agreement, defendant dealt with a Mr. D. Moody who had initiated the contract between the parties and gave the information necessary to complete a credit application. Once the credit application was approved, defendant delivered the equipment to Jefferson Trucking Company and billed plaintiff at Post Office Box 431, Harvey, Louisiana.

Louisiana Truck Parts, however, failed to pay for defendant’s services. W. & W. Clark-lift, Inc. then recovered its equipment and sent a certified letter demanding payment. When payment was not forthcoming, defendant filed suit in the Twenty-Fourth Judicial District Court, Division “G”.

Defendant attempted service on plaintiff’s registered agents but could not make proper service. Relying upon a return of service on the Secretary of State dated May 29, 1980, in accordance with LSA-C. C.P. art. 1262, a preliminary default judgment was entered on July 2, 1980, and confirmed on July 8, 1980. Defendant subsequently attempted to execute on its judgment. However, plaintiff filed a separate action seeking to enjoin the execution of defendant’s judgment and further petitioned to annul that judgment. Plaintiff sought to annul the judgment on the basis of improper service, fraud and ill practices.

At the conclusion' of the hearing and submission of memoranda, the trial court concluded that the service made in the suit was sufficient and that there was no fraud or ill practices. Thus the petition of Louisiana Truck Parts, Inc. to annul the previous judgment rendered in favor of W.W. Clark-lift, Inc. was denied. It is from this judgment that Louisiana Truck Parts, Inc. now appeals.

On appeal, appellant has set forth only one issue:

Whether service upon a Louisiana Corporation through the Secretary of State pursuant to LSA-C.C.P. art. 1262 is adequate where the Secretary omits, contrary to statute, to forward the citation to the corporation’s last known address.

LSA-C.C.P. art. 1262 states:

“If the officer making service certifies that he is unable, after diligent effort, to have service made as provided in Article 1262, then the service may be made personally on the secretary of state, or on a person in his office designated to receive service of process on corporations. The secretary of state shall forward this citation to the corporation at its last known address.”

Appellant argues that LSA-C.C.P. art. 1262, by use of the word “shall”, imposes upon the office of the secretary of state an express, affirmative and active duty to forward citations to corporate defendants. Appellant additionally contends, however, that it is incumbent upon the secretary of state to file the certificate of service, receipt for registered or certified mail, or the returned and unclaimed letter itself in the record. It is appellant’s position that without any evidence in the record of the forwarding of the citation, then mere service upon the Secretary of State is insufficient to form the basis of a judgment. We disagree.

At the trial to annul, appellant in its opening remarks stated that the problem of forwarding the citation and service was a major issue. However, appellant failed to carry his case any further. Instead, appellant simply introduced the record of the prior suit in which appellee obtained the default judgment which served as the basis of the suit to annul.

A stipulation was made by appellant that there were no problems with the actions of appellee in that appellee complied completely with the procedures as dictated by Article 1262 (i.e., due and diligent effort to have defendants served and the subsequent service upon the Secretary of State). Appellant’s only complaint is the Secretary of State’s failure to forward the citation and then place in the record evidence that the service was forwarded. Appellant made conclusionary remarks on the absence of any evidence in the prior record which would demonstrate that the Secretary of State did forward the citation to appellant’s last known address. Then, appellant submitted the service question on memorandum and by introducing the prior record.

We do not agree with appellant’s interpretation of LSA-C.C.P. art. 1262. That article does not place any duty upon the Secretary of State to file into the record any evidence showing that office has forwarded the citation to the corporate defendant’s last known address. LSA-C.C.P. art. 1262 simply requires the Secretary of State to forward the citation of service, nothing more. Absent positive evidence to the contrary, we afford the Secretary of State’s office a presumption of regularity that it is presumed to have carried out its statutory duty. Appellant’s arguments do not persuade us to infer such duty where the legislature has not seen fit to impose such. If the legislature had intended for the Secretary of State to take such actions, then we believe they would have directed him to do so. We interpret LSA-C.C.P. art. 1262 to mean that service is complete when service is made upon the Secretary of State as is directed by that article and return of that service is made part of the record.

It is clear that the plaintiff in a nullity action has the burden of proving his case by a preponderance of the evidence. A preponderance is made when the evidence, taken as a whole, shows that the fact sought to be proved is more probable than not. Roper v. Dailey, 393 So.2d 85 (La.1980). We find appellant’s arguments unconvincing and both records non-supportive. Appellant did not carry his burden of proving his case by a preponderance of the evidence.

Accordingly, for the above stated reasons, the judgment of the trial court dismissing appellant’s petition to annul is hereby affirmed with all costs to be paid by appellant.

AFFIRMED.


author: GAUDIN, Judge.

text:
    STATE of Louisiana v. Joyce BARGE.
    No. 83-KA-530.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.
    Writ Denied March 16, 1984.

      Olden C. Toups, Jr., New Orleans, for defendant-appellant.
    John M. Mamoulides, Dist. Atty., Calvin Hotard, William C. Credo, III, 24th Judicial Dist. Court, Parish of Jefferson, Gretna, for plaintiff-appellee.
    Before BOUTALL, CURRAULT and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant is Joyce Barge, who was convicted of LSA-R.S. 14:34.2, battery of a police officer, in the Second Parish Court of Jefferson Parish and sentenced to thirty (30) days in parish prison.

She contends the trial judge erred:

(1) In finding probable cause for her arrest on a charge of disturbing the peace,

(2) In failing to find that she justifiably resisted an unlawful arrest,

(3) In finding that she used more force than necessary to repel the aggression of police officers, and

(4) In improperly using her arrest record as a sentencing guide.

For the following reasons, we affirm the conviction and sentence.

THE TRIAL

Four persons, Miss Barge and her friend, Merle Sanderson, and two Jefferson Parish deputies, Lawrence West and Debra Hooper, testified at the trial.

Miss Barge said that in the early morning hours of February 28, 1982, she was expelled from the Hee Haw lounge in Gret-na, Louisiana, and then physically abused by police officers who arrived at the scene. Miss Sanderson’s testimony supported Miss Barge’s.

Miss Sanderson said:

“... by that time there was about six cops there, six or seven, and they were beating her for no reason.
“... I told them she hadn’t done nothing and they said that if I didn’t leave they were going to arrest me.”

Deputy West stated that when he arrived at the lounge, there was “... a large crowd of people outside...,” including Miss Barge. Deputy West said that Miss Barge “... couldn’t talk in a normal tone. She just kept shouting in my face.”

Deputy West said he told Miss Barge: “M’am, take it easy. What’s going on? I can’t understand you if you are going to scream and shout and carry on. If you don’t calm down, I am going to have to place you under arrest.”

When he “... couldn’t get the young lady to calm down ...,” Deputy West testified, he placed her under arrest for disturbing the peace.

Deputy Hooper, a female police officer, said that Deputy West . was attempting to find out what was going on and trying to calm her down a little bit. She still kept screaming things that really didn’t make sense. It was incoherent pretty much. I can’t remember exactly what was being said and we continually tried to calm her down. When we realized that we couldn’t calm her down, that’s when we placed her under arrest.”

Deputy Hooper added:

“We tried getting her to come walk away from the crowd and to come to talk to us over by the car but she wouldn’t do that...
“She was screaming something about hate and, oh, I can’t remember the exact words, something about ‘fucking pigs’...”

The “pigs” Miss Barge referred to, Deputy Hooper explained, were police officers.

After Miss Barge was arrested, Deputy Hooper tried to search her for weapons; whereupon, Deputy Hooper stated, Miss Barge struck her “... with her feet and elbows. She bit me on my arm.” Deputy Hooper said that she and Miss Barge “... were down on the ground wrestling.”

APPLICABLE STATUTES

LSA-R.S. 14:103 defines disturbing the peace as the doing of any of the following in such manner as would foresee-ably disturb or alarm the public:

“(1) Engaging in a fistic encounter; or
(2) Addressing any offensive, derisive, or annoying words to any other person who is lawfully in any street, or other public place; or call him by any offensive or derisive name, or make any noise or exclamation in his presence and hearing with the intent to deride, offend, or annoy him, or to prevent him from pursuing his lawful business, occupation, or duty; or
(3) Appearing in an intoxicated condition; or
(4) Engaging in any act in a violent and tumultuous manner by any three or more persons; or
(5) Holding of an unlawful assembly; or
(6) Interruption of any lawful assembly of people.”

R.S. 14:34.2 states that:

“Battery of a police officer is a battery committed without the consent of the victim when the offender has reasonable grounds to believe the victim is a commissioned police officer acting in the performance of his duty.
“Whoever commits the crime of battery on a police officer shall be fined not more than five hundred dollars and imprisoned not less than fifteen days nor more than six months without benefit of suspension of sentence.”

Miss Barge was formally charged only with the R.S. 14:34.2 violation, the more serious offense. Even though a police officer is trained to exercise a higher degree of restraint than the average citizen, we cannot say that the trial judge erred when he found probable cause for the R.S. 14:103 arrest. Miss Barge’s words and behavior would fit under Section (2) of the statute.

The right to resist an unlawful arrest has long existed in this State, but if the arrest is with probable cause and thus legal, the person arrested cannot forcibly rebuff a police officer. There is little doubt here that Miss Barge did physically resist attempts to restrain her and that she did commit a simple battery on Deputy Hooper.

Miss Barge contends that her testimony, supported by Miss Sanderson’s, was more believable, that there was no probable cause for her arrest and that the statements of the police officers did not establish guilt beyond a reasonable doubt. The record, however, supports the trial judge’s determinations, and we will not disturb them.

Probable cause is not absolute cause, and the actions of lawmen may be supported by less evidence than would justify a conviction. The determination of probable cause is a matter for the trial judge depending, as it often does, upon factual findings and the credibility of witnesses. State v. Billiot, 370 So.2d 539 (La.1979).

SENTENCING

The penalty for simple battery of a police officer is a fine not more than $500.00 and imprisonment not less than 15 days nor more than six months without benefit of suspension of sentence.

Defendant does not contend that her 30-day sentence, which was barely over the statutorily allowed minimum, was excessive. She does complain about LSA-C. Cr.P. art. 894.1 guidelines not being followed and that the trial judge improperly-considered her arrest record — i.e., her “rap sheet” — prior to imposition of sentence.

One of the prime purposes of Art. 894.1 is for appellate courts to know the judge’s reasoning so that the propriety of the sentence can be evaluated. However, unless it is argued that the sentence was excessive, it matters little, for appellate purposes, whether the trial judge fully articulated the listed aggravating and mitigating circumstances.

Before Miss Barge was sentenced, there was an off-the-record discussion. The trial judge then stated:

“You have been repeatedly in for trouble from time to time and time again. Every time you are in trouble, it results in some type of fight or — let me read you some of these things. Of course, you don’t have convictions; you have slid out of everything that you have had.
“ ‘Disturbing the peace’, ‘fighting’, ‘aggravated assaults’, ‘disturbing the peace’, ‘aggravated battery’, ‘illegal carrying of a weapon’, ‘resisting arrest’, ‘simple battery’, ‘attempted murder’, and again, you have no convictions. And, ah, were any of these things convictions, I would give you the maximum sentence I could, but there is no way that someone could get in that much trouble unless they just walk around with a chip on their shoulder and look for trouble. I mean there is just no way in the world somebody can get in that much trouble unless they are looking for it. No chance.
“The court sentences you to thirty days in Parish Prison.”

The Supreme Court of Louisiana has said, in State v. Washington, 414 So.2d 313 (La.1982), that “... prior criminal activity is one of the factors under Art. 894.1 to be considered by the trial judge in sentencing a defendant. Prior criminal activity is not limited to convictions.”

Here, the trial judge properly considered Miss Barge’s prior criminal activity, and then imposed a sentence well within his discretionary range.

DECREE

We affirm Miss Barge’s conviction and her 30-day sentence.

AFFIRMED.

      . See State in the Interest of Courtney, 411 So.2d 593 (La.App. 1st Cir.1982).


text:
    William R. LEBLANC v. Roger A. GUIDRY, Jr. et al.
    No. 83-CA-524.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Rehearing Denied Feb. 17, 1984.

      Earl M.J. Boydell, Jr., New Orleans, for plaintiff-appellant.
    William F. Bologna, Glenn P. Hare, New Orleans, for defendants-appellees.
    Before KLIEBERT, BOWES and GAU-DIN, JJ.
   GAUDIN, Judge.

This is an appeal from a judgment of the 24th Judicial District Court refusing to set aside a release and indemnity agreement. The record does not contain a transcript nor is there either a statement of facts signed by opposing counsel or a narrative of facts prepared by the trial judge. As there is nothing for appellate review, we affirm the district court decree.

Actually, the only issue before us is whether to rely on the statutory law and jurisprudence and say that the appealed-from judgment is presumed to be supported by competent evidence and is therefore correct, or to remand the case, in the interest of justice, for preparation of a record.

This precise choice was presented in the Succession of Walker, 288 So.2d 328 (La.1974). The Second Circuit Court of Appeal, at 276 So.2d 372, had refused to remand, and the Supreme Court of Louisiana affirmed, saying:

“... we are unable to see what would be accomplished by a remand. Apparently, the only witnesses who testified at the trial of this matter were produced on behalf of the appellees. Presumably, this testimony would be favorable to them. Additionally, the deposition of Emma Garr was quite vague and indefinite. Also, appellants do not contradict the statement of appellees that the testimony was not transcribed. This being the case, there is nothing to include, should we remand. The only alternative would be a narrative of facts, and this must be done prior to appeal. Besides, it has been over a year and a half since the trial of this rule. Consequently, the securing of a narrative of facts would be most difficult at this late date.
“In view of the foregoing facts, we are unable to conclude that the circumstances warrant a deviation from the general rule set forth in the statutory law and jurisprudence. A remand in the interest of justice is not presented here.”

In the instant case, a motion to set aside a release and indemnity agreement was filed and then set for a hearing. When the motion was heard, no witnesses were called, no documentary evidence introduced and no depositions, affidavits or statements offered. Instead, the trial judge heard arguments of counsel for approximately an hour, which were not recorded, and rendered judgment denying the motion without assigning written reasons.

We cannot remand for preparation of a record as there is no record to prepare. The trial judge couldn’t create a narrative of facts based only on arguments of counsel.

An appellant has the burden of preparing the record for appellate review, as clearly set forth in LSA-C.C.P. arts. 2130 and 2131, or he must convince the appellate court that a remand for construction of the record, in the interest of justice, is procedurally proper.

Art. 2131:

“If the testimony of the witnesses has not been taken down in writing the appellant must request the other parties to join with him in a written and signed narrative of the facts, and in cases of disagreement as to this narrative or of refusal to join in it, at any time prior to the lodging of the record in the appellate court, the judge shall make a written narrative of the facts, which shall be conclusive.”

Here, appellant has neither produced a record susceptible of appellate review nor has he shown that a record could be produced on remand. Consequently, we must assume that the trial court’s judgment was supported by sufficient evidence and was correct. See Discon v. Saray, Inc., 265 So.2d 765 (La.1972).

AFFIRMED.


author: GRISBAUM, Judge.

text:
    Malcolm FALGOUST and John J. Vizcaino, Jr. v. Mrs. Lolita Vicknair MORGAN, et al.
    No. 82-CA-254.
    Court of Appeal of Louisiana, Fifth Circuit.
    Jan. 10, 1984.
    Roland J. St. Martin, LaPlace, for plaintiffs-appellants.
    Agnes B. Blasi and James A. McCann, New Orleans, for defendants-appellees.
    Before BOUTALL, CHEHARDY, ‘ BOWES, GAUDIN and GRISBAUM, JJ.
   GRISBAUM, Judge.

Malcolm Falgoust appeals the judgment of the trial court in favor of appellees, Ira A. Duhe and Wayne A. Duhe, annulling and setting aside a judicial sale for failure to appoint a notary. We affirm.

Malcolm Falgoust and John J. Vizcaino, Jr., owners of undivided interests in certain immovable property in St. John the Baptist Parish, filed a petition for partition by lici-tation against the nine owners of the remaining undivided interest. The petition was filed on November 12, 1981, and the matter was heard on June 18, 1982 at the end of which hearing the attorney for defendants stated his clients were not opposed to proceeding with the partition by licitation. Judgment was signed ordering the property in dispute be sold at public auction for cash in order to effect the partition after the advertisements required by law. No mention was made of the appointment of a notary.

The sale was conducted on August 4, 1982. Appellee, Ira Duhe, arrived at the courthouse in Edgard prepared to bid in an attempt to acquire full ownership of the property. However, Mr. Duhe’s attorney had informed him he need only put down 10 percent cash of the amount bid and would be allowed ten days to pay the balance. Upon arriving at the courthouse, Deputy Sheriff Kathleen Chauvin informed Mr. Duhe he would be required to remit the full amount bid in cash immediately following the auction. Mr. Duhe had only a $10,000 cashier’s check and $2000 cash on his person. Roland St. Martin, attorney for Mr. Falgoust, appeared at the auction to bid on behalf of Mr. Falgoust. Mr. St. Martin and Mr. Duhe were the only two engaged in the bidding. Mr. Duhe’s final bid was $70,000 and Mr. St. Martin offered the final, highest bid of $71,000. After the auction had ended, Mr. Duhe went to Deputy Chauvin to see Mr. Falgoust’s check. He was told that Mr. Falgoust had not left a check and would be allowed to pay at a later time. Deputy Chauvin testified the custom was to require cash from an “outside bidder,” which she defined as anyone other than the plaintiff in the case.

On August 24, 1982, appellee, Mr. Duhe, filed a rule to show cause opposing homolo-gation of the partition on the ground that no notary was appointed resulting in substantial prejudice to him. After hearing the argument of counsel on September 8, 1982, the trial court found that under the provisions of article 4605 of the Louisiana Code of Civil Procedure the appointment of a notary is required to effect a partition by licitation and that, therefore, the absence of a notary required the judicial sale be annulled and set aside.

The trial court did not address the issue of prejudice, but this court finds the record supports allegations that the sale was conducted improperly and unfairly to the prejudice of Duhe.

Article 4605 of Louisiana Code of Civil Procedure provides in pertinent part that the trial court has discretion to direct the manner and conditions of effecting the partition, so that it will be most advantageous and convenient to the parties. In this case, the trial court did not set terms and conditions except in instructing that there be a sheriff’s sale and for cash. A sale “for cash” means payment at the time of sale as opposed to a credit sale. General Electric Credit Corp. v. Tardo, 304 So.2d 89 (La. App. 1st Cir.1974). It is not necessary that a sale with terms for cash be paid in legal tender, but a personal check honored by the bank is sufficient. Therefore, Duhe should not have been told he could not pay the purchase price by check.

Moreover, when the sheriff, without court mandate, makes different requirements of the bidders in their payment, the sale is not a fair sale and should be rescinded, when the successful bidder is the one favored by the sheriff.

The sheriff apparently relied upon Louisiana Revised Statute 13:4359 in his approach to the sale. This article permits the sheriff in certain instances to decide upon a portion of the purchase price to be paid at the moment of adjudication but only when this information is included in the advertisement prior to sale. This article is inapplicable to the instant case since there was no such advertisement, and, in any event, the article does not authorize a sheriff to impose different requirements of payment on individual bidders.

Because the sale can be annulled on grounds of unfairness, it is unnecessary to address the issue of whether a notary must be appointed by the trial court prior to the sale under article 4605 of the Louisiana Code of Civil Procedure in order for the sale to be valid.

For the reasons assigned, we affirm the judgment of the trial court in annulling and setting aside the judicial sale and remand for further proceedings in accordance with article 4605, each party to pay his own costs.

AFFIRMED.