author: CIACCIO, Judge.

text:
    STATE of Louisiana v. Thomas R. MELTON.
    No. KA-1368.
    Court of Appeal of Louisiana, Fourth Circuit.
    Aug. 31, 1984.

      Charles R. Jones, New Orleans, for appellant.
    William Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry Connick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for appellee.
    Before GULOTTA, BARRY and CIAC-CIO, JJ.
   CIACCIO, Judge.

Defendant, Thomas R. Melton, Sr., was charged with the illegal and intentional procurement, receipt and concealment of a 1977 Ford pickup truck, with a value of forty-five hundred ($4500) dollars. R.S. 14:69. He was found guilty by a unanimous vote of a six-man jury and was sentenced, as a multiple offender, to serve twenty (20) years at hard labor in the Department of Corrections. R.S.15:529.1. The defendant appeals his conviction and sentence relying upon six (6) assignments of error. We affirm the defendant’s conviction, vacate his sentence and remand the case for resentencing in accord with the dictates of this opinion.

On the evening of July 6, 1981, as a result of an anonymous tip, four police officers of the Fifth District in New Orleans were notified that there were two black male subjects in the area of Columbus and North Robertson Streets dismantling a vehicle. Officers Taggert and Cole approached the area in their police vehicle and drove midway into the driveway of the parking lot adjacent to the Crescent Arms Complex apartments. These officers observed Officers Matteo and McCord on the scene in their unmarked vehicle. Matteo and McCord cautioned the other officers not to move. At that time Melton and a co-defendant, Bobby Rocker, were observed removing a right side mirror from a 1977 black Ford pickup truck which was parked at an angle in the parking lot. The defendant, upon noticing the police officers, turned away and began to move hastily towards Columbus Street. The subjects were ordered to stop and Officer McCord conducted a pat down of Rocker whereupon a pliers and screwdriver were recovered. Officer Matteo checked the vehicle’s license and ran a computer check to ascertain whether the vehicle was stolen. Upon being advised that the vehicle belonged to Mason Haywood and that it had been reported as stolen on that day, Melton and Rocker were advised of their rights and placed under arrest.

As the policemen attempted to place the two defendants in the police car for transportation to police headquarters, Melton indicated that he wanted to step aside to talk to the arresting officers. Melton agreed to show the officers the location of the stolen property. He disclosed to them that Rocker had stolen the vehicle and then procured Melton’s assistance in dismantling it. They removed five tires, a pump jack and assorted tools from the truck. They sold these items for $60.00 to an auto parts store which is located at Banks and South Miro Streets. The money was used to buy narcotics for use by the co-defendants. The property described by Melton was recovered from the auto parts store, photographed and taken to the owner. The owner was called to the scene of the crime where he identified his truck, reassembled the vehicle and removed it from the area.

Defendant Melton was transported to police headquarters where he was again advised of his rights, was given an arrestee’s rights form and a written copy of his statement to sign.

Assignment of Error No. 1

The defendant objected and assigned error to the actions of the trial court in admitting his confession into evidence. The defendant contends that because he was under the influence of drugs that his statements were not the result of a free and voluntary waiver his constitutional rights.

The criteria for admissibility of confessions is set forth in Revised Statute 15:451, which provides:

R.S.15:451. Condition precedent to use of confession; free and voluntary rule Before what purposes to be a confession can be introduced in evidence, it must be affirmatively shown that it was free and voluntary, and not made under the influence of fear, duress, intimidation, me-nances, threats, inducements or promises.

Where the defendant’s confession is made while he is in custody, in order for that confession to be admissible at trial there must be a showing that the accused was advised of his rights and that he made an intelligent waiver of those rights. State v. Benoit, 440 So.2d 129 (La.,1983) citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Thus, when intoxication renders a defendant incapable of understanding and knowingly waiving his rights, the confession shall be inadmissible. State v. Robinson, 384 So.2d 332 (La.,1980). Whether intoxication exists and is of a degree to vitiate the voluntariness of a confession are questions of fact. State v. Robinson, id.

Accordingly the determination by a trial court that a statement is free and voluntary is entitled to great weight and it will not be disturbed unless it is not supported by the evidence. State v. Benoit, supra.

In the instant case, although there is evidence that the defendant procured narcotics with the money received from the sale of the truck parts, there exists ample evidence that the defendant was advised of his Miranda rights, supra, and that he knowingly and voluntarily waived those rights.

That is, the defendant was advised of his constitutional rights at the time of his arrest and at police headquarters where he was given a written form to sign which informed him of these rights.

Officer Norman McCord testified that the defendant appeared “sober” and “conscious” at the time of the confession. Additionally, he testified that the defendant did not appear “high” at that time. The defendant appeared to understand what he was doing and he was not induced by promises, threatened, nor co-erced into making the confession. Since the evidence supports the trial judge’s decision that the defendant’s confession was free and voluntary, it was properly admitted into evidence. For these reasons Assignment of Error No. 1 lacks merit.

Assignment of Error No. 2

The defendant by this assignment of error alleges that the trial court erred in refusing to grant the defendant a mistrial as a result of prejudicial remarks made by the prosecutor in closing argument.

The prosecutor argued that the defendant had a motive for the crime in that he was a “junkie” who used the money from the sale of the auto parts to pay for “T’s and Blue’s.” He further argued that “things have to be taken, they have to be possessed, they have to be sold, money has to be gotten for them to pay for drug habits ... And all you have to do — all of ya’ll are aware of the crime problem in this City — ” The defendant objected and requested a mistrial. The mistrial was denied and the court instructed the jury on two occasions to disregard these remarks.

The scope of argument shall be confined to the evidence admitted, the lack of evidence, the conclusions of fact that the State or defendant may draw therefrom and the applicable law. C.Cr.P. Art. 774. The argument may not appeal to prejudice. C.Cr.P. Art. 774.

When the remark is irrelevant or immaterial and of such a nature that it might create prejudice against the defendant in the mind of the jury, the court may grant a mistrial if it is satisfied that an admonition is not sufficient to assure the defendant of a fair trial. C.Cr.P. Art. 771.

In the instant case, there exists testimony regarding the defendant’s use of drugs. It is questionable however whether the use can be catagorized as a drug habit. Moreover, the prosecutors remarks concerning crime in the city was without evidentiary foundation and was clearly improper.

Mistrial is a drastic remedy and is warranted only where the error results in substantial prejudice to the defendant. State v. Williams, 375 So.2d 364 (La.,1979). In making the determination of whether to grant a mistrial, the trial court has wide discretion and its decision will not be disturbed absent a clear abuse of discretion. State v. Ates, 418 So.2d 1326 (La.,1982).

The remarks of the prosecutor were improper, but the admonition by the trial court judge to the jury to disregard the comment was sufficient to neutralize any harmful effect that the comment may have had.

The trial judge did not err in his refusal to grant a mistrial. This assignment lacks merit.

Assignment of Error No. 3

The defendant contends, by this assignment of error, that the trial judge erred when he instructed the jury that one of the elements of the crime was the “possession” of stolen property.

At the time of this trial, the statute under which this defendant was charged read as follows:

R.S.14:69 Receiving stolen things Receiving stolen things is the intentional procuring, receiving, or concealing of anything of value which has been the subject of any robbery or theft, under circumstances which indicated that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. (Emphasis Supplied)
* * * * * *

The statute under consideration does not include the term “possession”. However, since the term “receive” is by definition “to take into possession or custody”, the charge of the judge constituted harmless error. See Black’s Law Dictionary, Fifth Edition (1979). This assignment lacks merit.

Assignment of Error Nos. ⅛ & 5

The defendant objected and assigned error to the actions of the trial judge in accepting certain documentary evidence as sufficient support for a sentence under the multiple offender statute. R.S.15:529.1.

The defendant first complains that the trial court erred when it accepted an uncer-tified copy of the criminal transcript of the defendant’s prior guilty pleas in case Doc. Nos. 269-717 and 269-152.

The trial judge has great discretion in determining the sufficiency of the foundation which is necessary for the introduction of evidence. State v. Peters, 302 So.2d 888 (La.1974). The rule of authentication, evidencing the genuineness of a particular document, must always be satisfied. State v. Martin, 356 So.2d 1370 (La.,1978), app.aft. remand, 372 So.2d 563 (La.1979).

According to Revised Statute Title 15 Section 529.1 subsection (F) the prior conviction may be established by “The certificates of the Clerk of Court of the place of conviction in the state of Louisiana, under the seal of his office, if he has a seal ... shall be prima facie evidence ...” While this section establishes one method of proof of prior convictions, the facts necessary to permit enhanced punishment may also be proved by other competent evidence. State v. Blackwell, 377 So.2d 110 (La.,1979).

In State v. Rowell, the Louisiana Supreme Court held that the records on file with the Clerk of Court, which were otherwise admissible in judicial proceedings, could be introduced in original form or by a certified copy and it would not be necessary for the Clerk or Deputy Clerk of Court to personally appear and testify to their authenticity. R.S.15:459. 306 So.2d 668 (La.,1975).

In the instant case there was no predicate established for the introduction of this evidence. The only person to testify at the hearing was Lee Comeaux, a fingerprints expert and a New Orleans policeman assigned to the criminal records section of the Department. However, it was never established that Officer Comeaux ever had custody of the subject transcript. No one from the Clerk’s Office, where the records were purportedly kept, testified as to their custody. The: document was a copy and did not contain a certificate indicating that this was a copy of the original record purportedly kept in the Clerk’s office. The only certificate on the document is one of a stenographer who was the court reporter. The court reporter did not testify and the certificate of the court reporter only indicated that this was a transcript of her notes. The statement of the trial judge to the effect that he recognized the court reporter’s signature on this court reporter certificate was not sufficient to authenticate these documents.

Accordingly for this reason the case will be remanded in order that another sentencing hearing can be conducted which comports with the dictates of this opinion.

Next, the defendant, by assignment number 5, contends that the fingerprint evidence linking the defendant to the conviction contained in docket number 269-717 was inadequate. The defendant complains that the reverse side of the bill of information did not contain his fingerprints.

The record indicates that at the Multiple Bill hearing, Officer Lee Comeaux testified that the defendant’s prints matched those on the arrest register from the previous case. The State introduced the transcript from the plea of guilty hearing from this case (also attached to the defendant’s brief) which clearly indicates that Thomas Melton pled guilty to this crime. Thus, the State affirmatively proved that the defendant was the same person who was convicted of the prior offense.

For these reasons assignment of error Number 5 lacks merit.

Assignment of Error No. 6

The defendant contends that his sentence of twenty (20) years imprisonment at hard labor without benefit of parole, probation or suspension of sentence is excessive. La. Const. Art. 1, Sec. 20.

The statutorily prescribed penalty for illegal possession of stolen property, valued in excess of five hundred ($500) dollars, provides the defendant “shall be imprisoned with or without hard labor, for not more than ten years, or may be fined not more than three thousand dollars or both.” R.S.14:69. Such a penalty can be enhanced by as much as twice the maximum sentence if it is determined that the defendant is a second or third offender who would have been punished by less than a life term. R.S.15:529.1.

In order to determine whether a particular sentence is excessive, the reviewing court must decide whether it is so disproportionate to the severity of the crime as to shock the sense of justice. State v. Bonanno, 384 So.2d 355 (La., 1980). In reaching this determination, the Supreme Court is aided by the judge’s reasons for imposition of sentence. State v. Stegall, 377 So.2d 103 (La., 1979). The court must consider the sentencing guidelines before imposing a sentence of imprisonment. C.Cr.P. Art. 894.1, State v. Williams, 397 So.2d 1287 (La., 1981). The law mandates that the trial court state for the record the considerations and factual basis for the sentence imposed. C.Cr.P. Art. 894.1. State v. Forshee, 395 So.2d 742 (La., 1981); State v. Jones, 386 So.2d 85 (La., 1980); on appeal from remand 398 So.2d 1049 (La., 1981). The sentence imposed by the court must be individualized, that is, adapted to the offender as well as to the offense. State v. Wright, 384 So.2d 399 (La., 1980); State v. Little, 377 So.2d 332 (La., 1979). The trial court need not articulate every aggravating and mitigating circumstance, but the record must reflect that the court adequately considered the sentencing guidelines in particularizing the sentence to the defendant. See: State v. Gray, 404 So.2d 1215 (La., 1981). State v. Franks, 373 So.2d 1307 (La., 1979), on appeal from remand, 391 So.2d 1133 (La., 1980); cert, den., 450 U.S. 983, 101 S.Ct. 1520, 67 L.Ed.2d 818.

The record indicates that in sentencing the defendant the trial judge took into consideration several militating factors. That is, he considered the several prior arrests and convictions of the defendant. He expressed the opinion that the defendant was a career criminal and the only way to keep him from stealing was to incarcerate him. The judge also stated that any lesser sentence would deprecate the seriousness of the crime. The essence of the judge’s ruling focused upon these factors with little or no reference to the Louisiana statutory guidelines for sentencing and with little or no reference to any mitigating factors. C.Cr.P. 894.1.

Since we are unable to review the exces-siveness of defendant’s sentence because it was imposed without proper compliance with the statutory guidelines for sentencing, we must set the sentence aside and remand for resentencing.

Additionally, as previously stated, since the evidence introduced at the multiple bill hearing was insufficient, the defendant’s sentence could not be enhanced on this basis.

Accordingly, the defendant’s conviction is affirmed. The sentence is vacated and the case is remanded to the district court for further proceedings and for imposition of sentence in accord with the opinion expressed herein.

CONVICTION AFFIRMED. SENTENCE VACATED AND CASE REMANDED FOR FURTHER PROCEEDINGS.

      . The statute was amended in 1982 to read "... the intentional possessing, procuring, receiving or concealing of anything of value ...” (Acts 1982, No. 522, Sec. 1)


source: Caselaw Access Project

author: YELVERTON, Judge. LABORDE, Judge, STOKER, Judge,

license: Public Domain

text:
    INTERDICTION OF Betty Jean GOLDSMITH. Cecil Leo GOLDSMITH, Plaintiff-Appellee, v. Betty Jean GOLDSMITH, Defendant-Appellant.
    No. 83-836.
    Court of Appeal of Louisiana, Third Circuit.
    Sept. 10, 1984.
    Concurring Opinion Sept. 11, 1984.

      D. Kent Savoie, Sulphur, for defendant-appellant.
    Charles Schrumpf, Sulphur, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER, LA-BORDE, YELVERTON and KNOLL, JJ.
   YELVERTON, Judge.

Betty Jean Goldsmith appeals a judgment declaring her a limited interdict, under Louisiana Civil Code article 389.1, by reason of a physical infirmity, and placing the care of her person in the hands of a limited curator, her husband, Cecil Leo Goldsmith, the appellee. The judgment empowered the limited curator to commit appellant to a hospital or other facility for the care of her physical needs. Mrs. Goldsmith’s primary assignment of error is that there was no showing of an actual necessity for the interdiction and that, therefore, an essential prerequisite to the rendition of a judgment was absent and a limited interdiction was not warranted. We agree with this contention and reverse the judgment.

There is no substantial dispute about the facts. Betty Jean, 62, is paralyzed from the waist down. Her condition, caused by the disease transverse myelitis, is stabilized but permanent. She and the petitioner, 64, a retired plant worker, live alone in the family home; all three of their children are grown and live outside the state.

Since 1974, when she was first afflicted by the disease, Betty Jean has needed help for the care of her person. Unable to walk, she uses a wheelchair to get about. She cannot move herself to and from the wheelchair without assistance. She has no control over her bodily functions; she requires a daily enema, which must be done by others, and a constant catheter, the periodic changing and regular cleansing of which must likewise be done by others. Not owning a specially equipped vehicle, she does not drive. There are many things she can do, because the wheelchair is mobile and she has the complete use of her hands. For example, she can get water for herself and prepare simple meals, though not hot foods. Nevertheless, she admitted that she cannot take care of herself and that she needs the assistance of others.

This assistance has been provided for the most part by a sitting service, which has for several years furnished sitters from 8:00 A.M. to 12 midnight daily. The sitters do all the things for her that she cannot do for herself. Additionally, Home Health Services takes care of changing the catheter. A hydraulic lifting device is used to move her back and forth from the bed to the wheelchair. It appears from the testimony that Cecil, the husband, usually cooks the noon meal, but otherwise he leaves Betty Jean’s care up to the sitters while they are present. He gets water and gives his wife her medication at 6:00 o’clock every morning. This routine has been going on for at least the last four years.

Cecil and Betty Jean were the only two witnesses at the interdiction hearing. They stipulated that if their physician, Dr. Charles L. Fellows, had been called, he would have testified that Betty Jean is mentally competent but paralyzed from the waist down, and that Cecil is “unable to lift or give adequate care to his wife due to his back condition and age.”

In his petition seeking the interdiction, Cecil asked for his appointment as curator and for authority to place his wife in a nursing home. There was no medical testimony that Betty Jean needed to be in a nursing home. Cecil testified that she needed to be in one because he was becoming nervous, he needed a “break” from the responsibility of caring for her, and he would like her out of the house for awhile so he could do some renovating. If finances entered into the reasons for his filing the petition, it was not apparent in the pleadings or testimony, as relative costs of home care and institutional care were not discussed. Betty Jean denied there was any basis for an interdiction. At the trial she expressed the fear that if she should ever be put into a nursing home, she would never go home again.

The trial court found that Betty Jean was incapable of caring for her own person due to a physical infirmity. Based on this finding, and acting under the authority of new Civil Code art. 389.1, the trial court ordered that she be placed under a limited curatorship of her person, appointing her husband, Cecil, the limited curator. In addition to specifically empowering the limited curator to “commit” the limited interdict to a hospital or other facility for medical treatment, rehabilitation or care, the trial court imposed upon Cecil the duty and responsibility to provide for her physical needs, and exempted his personal estate from any liability. The decision to interdict, as well as the enumeration of the powers of the curator, were based on the single finding of fact that Betty Jean was unable to care for her own person because of a physical infirmity.

In our opinion, something more must be shown to justify a limited interdiction under article 389.1. An additional prerequisite is that the petitioner must establish an actual necessity for the interdiction. We reach this conclusion based upon a comparison between the proof requirements under Civil Code arts. 389 and 422 and the hew limited interdiction law, article 389.1.

Before 1981, there was no such thing as a limited interdiction in this state. Interdiction, whether for mental disability or other infirmity under Civil Code arts. 389 and 422, was in every case total, as opposed to limited, and, as prerequisites to the rendition of a judgment, it had to be shown that the person to be interdicted was both mentally incapable of administering his estate and unable to take care of his person. Matter of Fabre, 371 So.2d 1322 (La.1979). Some courts required the additional showing that an actual necessity for an interdiction existed. Fabre, supra; see also dissenting opinion of Chief Justice Dixon in State v. Williams, 392 So.2d 641 (La.1980).

Act 167 of 1981 introduced a limited interdiction into the law as Civil Code art. 389.1, which reads:

Art. 389.1. Limited curator; judgment of limited interdiction; rights of limited interdict

When a person is declared incapable by reason of mental retardation, mental disability, or other infirmity under the provisions of Articles 389 or 422 of the Louisiana Civil Code, of caring for his own person or of administering his estate, a court of competent jurisdiction may appoint a limited curator to such person or his estate. Pending appointment of a limited curator, the court shall inquire into the specific abilities and disabilities of the incapacitated person and such limited curator shall have only those powers necessary to provide for the demonstrated needs of the incapacitated person. The powers, duties, responsibilities, and any liabilities of the limited curator shall be specifically set forth in a judgment of limited interdiction.
The rights of the limited interdict shall be infringed in the least restrictive manner consistent with his incapacities. A judgment of limited interdiction shall not operate to deprive the incapacitated person of any civil right, the right to contract, or any right pertaining to any license, permit, privilege, or benefit unless specifically set forth in the judgment.

We have found no case interpreting this new article. As we perceive its intent, a judgment of limited interdiction can now be granted on proof of incapacity either to care for one’s person or administer his estate, which is a change from the total interdiction requirements of articles 389 and 422, the prerequisites of which are proof of both incapacities. However, the new article clearly retains — and now encodes — the former jurisprudential requirement that there be a showing of the necessity for the interdiction. By requiring that the rights of the limited interdict shall be infringed in the least restrictive manner consistent with his incapacities, and that the limited curator shall have only those powers necessary to provide for the “demonstrated needs” of the incapacitated person, the new article has unquestionably installed into this type of interdiction the requirement that there be proof that an actual necessity for the interdiction exists.

No such proof was presented in this case. We agree with the trial court that Betty Jean cannot care for her own person by reason of her physical infirmity. However, her mental capacity is untouched by the disease that produced her physical infirmity. Not only is she able to administer her estate, but she also can do many things for her person; she is by no means helpless. She can communicate, she can move about in her wheelchair, and she has the use of her hands. There was no evidence that she would receive better care somewhere else; none that her condition would benefit from being institutionalized; no evidence she would deteriorate if allowed to stay home; in short, no showing was made that she has needs which are not being presently satisfied. She has certain special needs because of her physical incapacity, but there is a total absence of proof demonstrating that a limited interdiction is necessary to provide for those needs. For this reason, there exists no necessity for an interdiction in her case.

For the foregoing reasons, the judgment of the trial court ordering the interdiction of defendant, Betty Jean Goldsmith, is reversed, and judgment is rendered dismissing the petition. All costs in the lower court and on appeal are assessed to appel-lee.

REVERSED AND RENDERED.

LABORDE, J., dissents and assigns written reasons.

LABORDE, Judge,

dissenting.

I respectfully dissent from the majority opinion.

Plaintiff, Cecil Leo Goldsmith, instituted this proceeding to have his allegedly physically infirm wife, Betty Jean Goldsmith, defendant, declared a limited interdict and placed in a rest home for her physical welfare and rehabilitation. The trial court found that Betty Jean was incapable of caring for her person due to her paraplegic condition and held that she was a limited interdict, however, remaining sound in mind. Cecil was named limited curator and their son, Cecil Dale Goldsmith, as limited under-curator. Betty Jean appeals from this judgment. Considering that such limited interdiction is necessary and in defendant’s best interest, I would affirm the judgment of the trial court.

FACTS

Betty Jean Goldsmith is a 62 year old paraplegic. She was left paralyzed from the upper rib cage and below as a result of a viral disease, transverse myelitis. This condition is presently stabilized, but has existed since 1974. She is confined to a wheelchair and requires substantial assistance to move about. She has no self-control over her bodily functions and requires a daily enema, as well as a constant catheter. The catheter requires changing every six weeks which she is unable to perform. She has received extensive training for rehabilitation and is mentally competent as reflected from her testimony in this proceeding.

Betty Jean has been married to Cecil for 42 years. Three children were born of the marriage. She has also cared for her 82 year old mother in the past.

For the past three to four years, Betty Jean has been attended to by private sitters due to her physical inability and the alleged refusal by Cecil to assist her. The parties’ home has been modified for Betty Jean to include a hydraulic lift and a ramp to assist her upon entry and exit to their home.

Cecil is 64 years old and is a retired factory worker with several physical problems of his own. He is unable to lift heavy objects and suffers from residual pain in his back. He claims that due to his physical inability to adequately provide for his wife, he desires to remove her to a rest home for adequate care and rehabilitation. He states in the record that he must “have a break” from the daily services which are incumbent upon him to provide for his wife’s proper physical welfare.

Betty Jean argues that she has cared for herself, and in the future, could provide for herself with only minor assistance. For this reason, she contends that limited interdiction is unwarranted.

The trial judge held that she was incapable of caring for her own person due to her physical infirmity and pronounced her to be a limited interdict as to her person only. Cecil was named limited curator and their son, Cecil Dale Goldsmith, was named limited under-curator with limited powers, duties and responsibilities over her person.

Betty Jean appeals from this judgment of limited interdiction and alternatively prays that the trial court judgment be amended to further restrict and limit the powers of the curator.

The issues presented on appeal are:

1) Whether Betty Jean Goldsmith is physically infirm to the extent that she should be declared a limited interdict; and,
2) Whether the limited interdiction judgment infringes upon the defendant’s rights in the least restrictive manner consistent with her incapacities.

ISSUE #1: LIMITED INTERDICTION

Betty Jean contends that plaintiff failed to meet his burden of proof to have her interdicted. For this reason, she avers that the judgment of limited interdiction should be reversed and set aside.

Interdiction is a harsh remedy and should be pronounced only where proof of the infirmity and the necessity for interdiction is clear and conclusive. LSA-C.C. art. 422; In Re Adams, 209 So.2d 363 (4th Cir.1968). The civil code has historically required a plaintiff to show the alleged interdict to be incapable of earing for their person and administering their estate as a prerequisite to interdiction. Additionally, the petitioner must show that such interdiction is necessitous and in the alleged interdict’s best interest. LSA-C.C. art. 422; Matter of Fabre, 371 So.2d 1322 (La.1979). This dual prong requirement for full or total interdiction, however, applies to instances only where a person is physically and mentally incompetent to maintain their persons and estates. In response to situations where there exists either a physical or mental disabling infirmity, the Louisiana Legislature has recently enacted codal authority to provide for such instances where, out of necessity, a person may be declared a limited interdict to remain competent to care for either his person or estate. LSA-C.C. art. 389.1 provides:

“Art. 389.1. Limited curator; judgment of limited interdiction; rights of limited interdict

When a person is declared incapable by reason of mental retardation, mental disability, or other infirmity under the provisions of Articles 389 or 422 of the Louisiana Civil Code, of caring for his own person or of administering his estate, a court of competent jurisdiction may appoint a limited curator to such person or his estate. Pending appointment of a limited curator, the court shall inquire into the specific abilities and disabilities of the incapacitated person and such limited curator shall have only those powers necessary to provide for the demonstrated needs of the incapacitated person. The powers, duties, responsibilities, and any liabilities of the limited curator shall be specifically set forth in a judgment of limited interdiction.
The rights of the limited interdict shall be infringed in the least restrictive manner consistent with his incapacities. A judgment of limited interdiction shall not operate to deprive the incapacitated person of any civil right, the right to contract, or any right pertaining to any license, permit, privilege, or benefit unless specifically set forth in the judgment.”

Armed with these standards and distinctions, I proceed to review the trial court’s judgment of limited interdiction of Betty Jean in light of the facts.

Physical infirmities which give rise to a necessity for limited interdiction of one’s person must be to the extent that the alleged interdict is incapable of personally or otherwise caring and providing for their physical welfare. In Re Adams, supra. There must be clear and convincing evidence to show that the limited interdict lacks the necessary capacity to care for his person and that because of these incapabilities presents himself with a threat of harm by continued efforts of caring for himself.

I find, as did the trial judge, that Betty Jean poses a threat of harm to herself by attempting to care for herself at home. This is evident from the following facts which conclusively show a necessity for daily and special attention from others for her physical welfare. I find that the majority has failed to properly consider these facts in the course of reviewing the record.

Betty Jean is confined to a wheelchair and is paralyzed from her rib cage downward. She cannot walk. Since the occurrence of her confining condition, she has become overweight and requires aid from others to be moved in and out of the wheelchair. She cannot give herself a bath or get in and out of her bed without substantial aid. When asked during trial whether she could care for herself, the following discourse occurred:

“Q Do you have a belief as to whether you could take care of yourself totally or not?
BY MR SAVOIE: Do you believe...
BY THE WITNESS: I heard that, but
BY MR. SAVOIE: Do you believe that you could take care of yourself if you had...
BY THE COURT:
Q I need your frank opinion. I need your frank opinion.
A Well, since my doctor had advised my bowel control to be controlled by an enema every morning, that, I cannot do for myself.
Q Well, aside from that, aside from those physical functions, could you totally care for yourself, if no one lived with you?
A I think truthfully I would have to say probably not, totally alone.”

As stated earlier, she no longer has control over her bodily functions. She requires constant attendance by a capable person to help her move about and administer the daily enemas. Her catheterization must be changed and cleaned every six weeks for which she is unable to perform and requires special assistance. She argues that such assistance is of a nature that she could obtain in her own home and eventually provide for herself. I find these services to be of utmost importance to her welfare to the extent that it poses great risks of harm to her if not properly attended.

Conversely, Cecil argues that he is no longer able to personally care for Betty Jean because of his own limited physical ability. He too suffers from partial physical disabilities. Further, it appears from the record that the cost of constant in-home attendant care for Betty Jean would impose an undue economic hardship on the community. During Betty Jean’s testimony, the following discourse bears this out:

“Q Tell me something about the family financial situation. How do you and your husband afford attendants for you, medical treatment, things of that nature? Where does the money come from? Are you wealthy or not?
A Oh, no, sir.
* * * * * *
A Truly, I understand. My husband took his retirement fund from his employer, Conoco, Continental Oil Company, when he took early retirement due to his own physical problems, and Social Security. I do not draw personal Social Security, because I did not work outside the home since Social Security had been in being; consequently, I am not eligible for any kind of disability compensation for myself.
Q You have no income of your own?
A No, only the small amount that I’m able to draw from his Social Security at the present time...
Q I see.
A .. .which started several months ago. Now, I can’t give you the exact date on that. I would have to look that up in my wallet.
Q Other than your husband’s retirement fund and his Social Security, do you folks have any income?
A Some invested monies which are in the hands of Merrill Lynch Investment Counsellors. I think that was part of his lump-sum retirement fund that he invested.
Q Is that an amount sufficient to care for you and your husband the rest of your lives?
A I cannot answer that question, considering the fluctuation of the economy and prices, and et cetera. That is a question that I don’t believe anyone could answer right at this moment. The fluctuating value of the dollar...
Q Well, what I want to know...
A .. .rather prohibits a definite answer, I would say.
Q What I would like to know...
A Yes, sir.
Q Suppose you and your husband obtained a legal separation, or a divorce, and divided your properties between you, one-half to each of you after paying any debts that there may be, and disposing of all of the properties and converting it into cash and giving it to you, giving you your half of it, half of the value of the family home, assuming you have one, vehicles, anything else. If you took one-half of all of the family assets, could you then purchase suitable living quarters and hire for yourself whatever persons you needed to assist you, and live the rest of your life without any further assistance from anyone, financial or physical?
A Well, I probably would have to have some physical assistance, as I said, in some areas of body care. And as to the other question, I really do not believe, personally, that he is financially able to support two establishments, even as in a nursing-home care. But I am not an economist, not a professional economist...”

Betty Jean’s condition has not improved while at home and, if anything, has worsened since she has gained weight, making it more difficult for her to be moved. Cecil testified that her body size has increased to the extent that he can no longer physically handle her when necessary. It is undisputed that Betty Jean must be moved and handled by others on several occasions per day for proper and adequate care of her person. There appears to be constant turmoil and dispute between Cecil and Betty Jean arising out of Cecil’s inability to properly care for Betty Jean. Additionally, I detect from Betty Jean’s testimony that Cecil’s income will not provide for constant in-home attendant care necessary for the proper care and welfare of Betty Jean’s person. For these reasons, I find it necessary, as did the trial court, to have Betty Jean declared a limited interdict as to her person in order that she might be placed in a rest home to receive proper and dignified care and rehabilitation of her person.

For these reasons, I find no manifest error or abuse of discretion in the trial court’s judgment of limited interdiction of Betty Jean’s person. The majority fails to point out any manifest error as a basis for reversal in this instance. Rather, I find their decision to be one based upon a difference of opinion. Our review on appeal should not be to substitute our decision for that of the trial court in the absence of abuse of discretion or manifest error.

ISSUE # 2: LEAST RESTRICTIVE INFRINGEMENT

Article 389.1 requires that the rights of the limited interdict be infringed' in the least restrictive manner consistent with her incapacities. Betty Jean contends that the powers granted unto Cecil as curator are excessive. The powers and duties granted unto Cecil over his wife’s person are as follows:

“(1) The power to commit the limited interdict to a hospital for medical treatment, or other facility for rehabilitative purposes, or any other facility for the care of her physical needs;
(2) The curator has the duty and responsibility to assist in the total care of the physical well-being of the interdict, to see that she gets medicine, proper diet, and administers to her physical needs and bodily functions, and to provide such other assistance as may be required to fulfill her physical needs, including attempting to get rehabilitative therapy and exercise;
(3) The limited curator shall have no liability on the money, property, or business affairs of the limited interdict, except to the extent provided by the community property laws of the State of Louisiana, as long as a community of property exists between the curator and the limited interdict.”

The judgment of limited interdiction grants unto Cecil the power necessary to provide for the demonstrated physical needs of Betty Jean. The judgment also limits the limited curator’s authority over Betty Jean’s affairs and her mental abilities.

I find that such authority and responsibility placed upon Cecil is both necessary and the least restrictive in light of the circumstances. There is evidence that Betty Jean has refused treatment and rehabilitative measures offered to her at a rest home. Due to Cecil’s inability to provide for her, I find it is in the best interest of Betty Jean that she submit to professional care and rehabilitation in hopes that she might achieve the necessary abilities to care for herself in the future.

I note that the limited under-curator, Betty Jean’s son, shall always have the prerogative to object or interpose as to any type of authority imposed by the limited curator. Betty Jean may also petition the court in the future should she feel that she has recovered to the extent that limited interdiction is no longer necessary. There are, therefore, sufficient and adequate protections provided by law for the limited interdict in the event that the limited curator might abuse his authority over the limited interdict.

In the course of oral argument, the attorneys for the litigants, when asked by me how to construct a more restrictive order, could not fashion such a judgment or offer suggestion on how to do so. After reviewing the judgment, I find it to be least restrictive and in keeping with the legislative intent of LSA-C.C. art. 389.1.

For these reasons, I respectfully dissent.

STOKER, Judge,

concurring.

I concur fully in the majority opinion. My only reason for adding these concurring comments is to emphasize one point. The record contains no evidence that Mr. Goldsmith is unable to provide the cost of caring for Mrs. Goldsmith in their home. Mr. Goldsmith did not make that contention in his testimony. The petition filed by Mr. Goldsmith does not contain any allegation that he is unable to pay for the sitters hired to care for his wife. Mr. Goldsmith did not make cost an issue in this matter.


author: SCHOTT, Judge. PER CURIAM.

text:
    Donald E. LEWIS & Capital City Press v. Petr L. SPURNEY, Lee Randall & Louisiana World Exposition, Inc.
    No. CA 2650.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 19, 1984.
    Rehearing not considered Oct. 5, 1984.
    Writs Denied Sept. 28, and Oct. 26, 1984.
    Frank M. Coates, Jr., Taylor, Porter, Brooks & Phillips, Baton Rouge, for plaintiffs-appellants.
    Margaret Ann Brown, Charles J. Wil-loughby, New Orleans, for defendants-ap-pellees.
    Before SCHOTT, BYRNES and LOBRA-NO, JJ.
   SCHOTT, Judge.

This is an action by Capital City Press, a newspaper publisher, and its employee, Donald E. Lewis, to enforce the provisions of the Public Records Law, LSA-R.S. 44:1 et seq., against Louisiana World Exposition, Inc. (LWE) and its executive officers. The issue is whether LWE’s records are “public records” so as to entitle plaintiffs to examine them under R.S. 44:31. The trial court dismissed plaintiffs’ suit and they have appealed.

LWE is a private, non-profit corporation which created and is now operating the 1984 World’s Fair in New Orleans. Although largely dependent upon private capital, LWE has also relied upon public financial support since before it opened the Fair in May 1984. Such public support commenced with the passage of Act 460 of 1981 which appropriated $5,000,000 out of the state’s general fund to be placed in an escrow account for the purpose of covering any deficit of the Fair’s operations upon its discontinuance, cessation, or conclusion.

As the opening of the Fair drew near, Act 1 of 1984 was adopted and became effective on April 25, 1984. This appropriated $10,000,000 to the Louisiana Exposition Authority (LEA), created by Act 263 of 1977 for the purpose of constructing the Louisiana exhibit at the World’s Fair, and authorized LEA to loan this sum to LWE. Petr Spurney, LWE’s chief executive officer, testified that this $10,000,000 helped cover the expenses of opening the Fair. Because the Fair could not meet its financial obligations out of its operating revenues, the legislature passed Act .199 of 1984, effective June 28, 1984, which authorized LEA to borrow $17,500,000 and to loan this sum to LWE to liquidate debts to contractors and banks and to pay operating expenses. On July 12, 1984 LWE signed a $15,000,000 note to LEA evidencing receipt of this part of the $17,500,000. Pursuant to a “Co-operative Endeavor Agreement” this $15,000,000 was to be paid to bank and contractor creditors of LWE as authorized by the Governor through a Fiscal and Financial Committee. Although referred to as loans in the acts the evidence indicates that the loans will probably not be repaid. In all likelihood, the other $2,500,000, still available to LWE pursuant to Act 199, will have to be borrowed and the $5,000,000 in escrow pursuant to Act 460 of 1981 will likewise be needed at the conclusion of the Fair.

In dismissing plaintiffs’ suit the trial judge reasoned that LWE is a private corporation whose receipt of public funds as loans did not make it a public body. Holding that the Public Records Act applies only to public bodies the court concluded that plaintiffs were not entitled to the relief they are seeking. In this court both sides have addressed the issue of whether LWE is a public body or not; however, we have concluded that this question is irrelevant to our decision. The question is simply whether LWE’s records are “public records” or not.

R.S. 44:31 provides that “any person ... may inspect ... any public record.” R.S. 44:1A (2) provides the definition of “public records” as follows:

“All books, records, writings, accounts ... being in use, or prepared, possessed, or retained for use in the conduct, transaction, or performance of any business, transaction, work, duty, or function ... concerning the receipt or payment of any money received or paid by or under the authority of the constitution or the laws of this state, are ‘public records,’ except as otherwise provided in this Chapter or as otherwise specifically provided by law.”

LWE has received $25,000,000 under the authority of Acts 1 and 199 of 1984 and LSA-Const. Art. 7, Section 14 (C) which is the underlying authority for this sort of cooperative endeavor. Since this money has been spent on LWE’s operations or to pay its creditors, LWE’s financial records would necessarily reflect business or transactions which concern this money. Thus, the records are “public records” under the statutory definition and plaintiffs are entitled to inspect them.

This conclusion is buttressed by the principle that the public records law must be liberally construed so as to enlarge rather than restrict access to public records by the public. Any exemption from the law is in derogation of the public’s right to know how government affairs are being conducted and must be narrowly interpreted. Amoco Production Co. v. Landry, 426 So.2d 220 (La.App. 4th Cir.1982).

In the present case LWE received $10,-000,000 from the state before the Exposition opened its doors. Before the end of July it received another $15,000,000. When the definition of public records is considered in the spirit of liberal interpretation favoring inspection by the public the conclusion is inescapable. The public is entitled to see exactly where all this money has been spent.

In their petition plaintiffs sought to inspect all of LWE’s records. We have concluded that they are entitled to inspect only financial records dating from the time LWE received any of the $10,000,000 authorized by Act 1 of 1984.

We have also concluded that plaintiffs are not entitled to attorney’s fees which they seek under R.S. 44:35D. This statute provides that a prevailing party is entitled to attorney's fees but further provides that where a party “prevails in part” the award of attorney’s fees is discretionary with the court. Since plaintiffs have prevailed only in part, and since LWE’s resistance was in good faith, we are not disposed to award attorney’s fees.

Accordingly, the judgment of the trial court is reversed and set aside, and there is judgment in favor of plaintiffs and against defendants ordering them to make available to plaintiffs for inspection and copying the financial records of Louisiana World Exposition, Inc. from the date it first received any of the funds from Louisiana Exposition Authority pursuant to Act 1 of 1984. The parties will be governed by the provisions of R.S. 44:31 et seq. All costs in the trial court and this court are assessed against defendants.

REVERSED AND RENDERED.

On Application for Rehearing

PER CURIAM.

The application for rehearing is not considered. CCP Art. 2166 D. The obvious meaning of “financial records” is all records of receipts and disbursements of all funds.