author: GUIDRY, Judge.

text:
    Carroll CURTIS, et al., Plaintiffs-Appellants, v. Roland A. BREAUX, et al., Defendants-Appellees.
    No. 83-913.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Porterfield and Simmons, John W. Por-terfield, Jeanerette, for plaintiff-appellant.
    Jacques Cousin, New Iberia, for defendant-appellee.
    Before GUIDRY, LABORDE and YEL-VERTON, JJ.
   GUIDRY, Judge.

Plaintiffs, principal and income beneficiaries of various testamentary trusts, by rule to show cause sought to have removed Roland A. Breaux and Guyton H. Watkins, as trustee and trust attorney, respectively. By consent judgment, the action against Guyton H. Watkins was dismissed. After trial on the merits, the trial judge rendered judgment in favor of defendant, Roland A. Breaux, and against plaintiffs, dismissing plaintiffs’ action. Plaintiffs appeal.

FACTS

The last will and testament of Rosella Broussard Colletti was admitted to probate on July 8,1976. In addition to other particular legacies, the will provides in pertinent part as follows for the establishment of the trusts in question:

“I give and bequeath, as a particular legacy, unto The State National Bank of New Iberia, as Trustee, in trust, for:
A. My grandson, John Michael Curtis, all investments in Iberia Savings and Loan Association standing in the name Rosella B. Colletti for John Michael Curtis, said trust to be known as the Rosella B.Colletti Trust for John Michael Curtis;
B. My grandson, Bryan Keith Curtis, all investments in Iberia Savings and Loan Association standing in the name Rosella B. Colletti for Bryan Keith Curtis, said trust to be known as the Rosella B. Colletti Trust for Bryan Keith Curtis;
C. My grandson, Richard James Curtis, all investments in Iberia Savings and Loan Association standing in the name Rosella B. Colletti for Richard James Curtis, said trust to be known as the Rosella B. Colletti Trust for Richard James Curtis; and
D. My granddaughter, Allison Claire Curtis, all investments in Iberia Savings and Loan Association standing in the name Rosella B. Colletti Custodian. for Allison Claire Curtis, said trust to be known as the Rosella B. Colletti Trust for Allison Claire Curtis....
I give and bequeath, subject to the foregoing, all of the rest of the property of every nature and description that I own when I die unto the State National Bank of New Iberia, as Trustee, to hold in trust for the benefit of the beneficiaries named below in separate trusts.
The Trustee shall hold, manage, invest and reinvest for the benefit of my son, Carroll Curtis, Jr., a full one-third of all property of which I die possessed, said full one-third to be carved from the remainder or residue of my estate, real, personal or mixed. This trust is to be known as the Carroll Curtis, Jr. Trust and all of the income from this entire trust shall be paid to my son during his lifetime annually, or, at the Trustee’s election, at more frequent intervals. My son shall have the full and unrestricted right to bequeath his entire interest. The trustee shall hold all of the remainder of my estate for the benefit of my aforenamed grandchildren. One-fourth thereof shall vest in the Rosella B. Col-letti Trust for John Michael Curtis; one-fourth thereof shall vest in the Rosella B. Colletti Trust for Bryan Keith Curtis; one-fourth thereof shall vest in the Rosella B. Colletti Trust for Richard James Curtis; and the remaining one-fourth thereof shall vest in the Rosella B. Col-letti Trust for Allison Claire Curtis.
As to the Carroll Curtis, Jr. Trust, the term of this trust shall be for his lifetime.
As to the trusts for each of my grandchildren, those trusts shall terminate when each grandchild shall arrive at his or her 30th birthday and at that time the corpus and accumulated income, if any, shall be delivered and/or paid to the beneficiary.”

The decedent’s nephew, Donald C. Brous-sard, was confirmed as executor of the succession which remained under administration for approximately two years. During the course of the succession proceedings, State National Bank declined the appointment as trustee of the testamentary trusts and Roland A. Breaux was appointed and confirmed as trustee in September of 1977. A judgment of possession and recognition of the testamentary trusts was signed on February 1, 1978 and the executor was discharged in August of 1978.

The trustee was sent into possession of the following properties: rental property on Weeks Street in the City of New Iberia consisting of two rental units; rental property on Trotter Street in the City of New Iberia consisting of four rental units; a home located in Lafayette Parish near Youngsville, Louisiana; land and mineral interests near Weeks Island, Louisiana; sixty shares of Gulfco stock; 400 shares of stock of Iberia Savings and Loan Association; cash and savings funds; certain promissory notes; furniture located in the rental apartments; and some jewelry.

The Weeks and Trotter streets properties were valued in the succession inventory at $46,200.00 and $24,000.00, respectively. The trustee ordered a subsequent appraisal for the purpose of selling the Trotter and Weeks streets properties. In this later appraisal, the Weeks and Trotter streets properties were valued at $50,000.00 and $27,000.00, respectively. The trustee sold the Trotter Street property on April 13, 1978 to Roland Broussard, the former executor’s son, and the Weeks Street property on September 1, 1978 to Rita and Edwin J. Viator, the sister and brother-in-law of the former executor, at the higher appraised prices. The furniture located in the rental apartments was sold along with the properties. The proceeds from the sales were subsequently invested in money market certificates.

Pursuant to a judgment of March 27, 1981 in favor of the trust beneficiaries, the trustee was directed to deliver the jewelry which formed a part of the corpus of the several trusts to the beneficiaries, who, upon delivery, signed a written receipt and release for same. Other than the foregoing divestitures, at the time this suit was filed, the corpus of the several trusts consisted of the properties heretofore mentioned plus the proceeds derived from the sale of the Trotter and Weeks streets properties.

On June 30, 1981, plaintiffs filed this suit seeking removal of the trustee based on LSA-R.S. 9:1789, which provides:

“A trustee may be removed in accordance with the provisions of the trust instrument or by the proper court for sufficient cause shown.”

The trust instrument does not make provision for removal of the trustee.

In the trial court, plaintiffs averred that the trustee should be removed for cause urging that the trustee was guilty of mismanagement of the trust properties. Principally, plaintiffs complained of the sale of the rental properties by the trustee; the trustee’s failure to maintain five separate and distinct trusts; the trustee’s failure to properly account to the beneficiaries; and, the trustee’s actions in improperly charging expenses against income instead of principal.

In oral reasons for judgment, the trial court concluded in general terms that, although the evidence revealed some violations of the trust code, such violations were largely technical in nature and inconsequential to the interests of the beneficiaries. The trial court further concluded that the trust was well managed by the trustee, and that there was insufficient cause shown for removal. Accordingly, plaintiffs’ suit was dismissed. Plaintiffs appeal. We affirm.

SALE OF RENTAL PROPERTY

Plaintiffs allege that the sale of the rental properties was made solely for the trustee’s ease of management and/or in the interest of the vendees at prices inadvanta-geous to the beneficiaries, resulting in a loss of income to the beneficiaries.

In managing trust property, a trustee is required to exercise such skill and care that a man of ordinary prudence, discretion and intelligence would exercise in the management of his own affairs. La. R.S. 9:2090 and 2127. The trustee is bound to administer the trust solely in the interest of the beneficiaries. La.R.S. 9:2082. La. R.S. 9:2085 prohibits the trustee from buying or selling trust property directly or indirectly from or to himself, his relative, employer, employee, partner or other business associate. These provisions of the Trust Code evidence the intention of the legislature to place the very highest fiduciary responsibility on the trustee towards the beneficiaries. Succession of Dunham, 408 So.2d 888 (La.1981).

As aforestated, prior to the sale of the Trotter and Weeks streets properties, the defendant obtained an updated appraisal from Mr. Louis Darby. The record reflects that Louis Darby has been involved in real estate appraisals in New Iberia for over 20 years. Darby conducted a market value appraisal based on comparable sales, and appraised the Weeks Street property at $50,000.00 and the Trotter Street property at $27,000.00. Shortly after each appraisal was made, the trustee sold the property at their respective appraised- values without the necessity of employing a realtor whose fee would have amounted to six (6%) percent of the sales price.

At trial, plaintiffs introduced the expert testimony of Mr. George Parker who, based on a cost analysis, valued the Weeks property at the time of the sale at $94,-000.00 and the Trotter Street property at $39,000.00. On this issue, defendants introduced the expert testimony of Louis Darby who testified in support of his previous appraisal.

We find insufficient proof that the sales were made in the trustee’s interest or the interest of the vendees rather than that of the beneficiaries in contravention of La. R.S. 9:2082 and 2085. The mere fact that the vendees are related to the former executor of the estate, an admitted friend of the trustee, is insufficient to prove that the trustee acted in the interest of the vendees rather than that of the beneficiaries, particularly in light of the overall prudence of the sale. Nor do we find the mere allegation that the sales were made solely for the trustee’s ease of management persuasive. The trustee testified that he considered the costs of hiring someone to collect rentals and perform managerial duties in his decision to sell the properties.

The stated reasons of the trustee for selling the rental properties and placing the proceeds at interest are as follows: (1) considering insurance, maintenance, management fees and vacancies, a greater net income to the beneficiaries would be realized by a sale of the properties; and, (2) considering that the grandchildren’s trusts would terminate upon reaching the age of thirty and that their interests in the property were undivided, easily liquidated assets were preferable to real estate.

Plaintiffs argue that assuming consistent rentals, low maintenance, and a return of only seven (7%) percent interest on the invested proceeds, a greater income from rents would have been realized by the beneficiaries than from interest. However, plaintiffs failed to introduce evidence of these facts and plaintiffs’ argument is mere speculation. Indeed, the record indicates that the proceeds were invested at a considerably higher interest rate than seven (7%) percent. In any event, the production of income is not the sole purpose of the trust. The test is not that the trustee always have his judgment vindicated by the market, but that he exercise the skill and care of a prudent administrator. Holladay v. Fidelity National Bank of Baton Rouge, 312 So.2d 883 (La.App. 1st Cir. 1975). We conclude that the record reveals that the evidence was insufficient to prove a breach of the prudent administrator standard in contravention of La.R.S. 9:2090 and 2127.

FAILURE TO MAINTAIN FIVE SEPARATE AND DISTINCT TRUSTS

Plaintiffs contend that the trustee failed to establish five separate and distinct trusts, one for Carroll Curtis and one for each of the grandchildren pursuant to the directives of the testatrix. According to plaintiffs, the individual trusts of the grandchildren, pursuant to the testamentary trusts, were to be comprised of the sums on deposit at a local bank in the names of the various grandchildren together with their share of the residuum of the estate. Plaintiffs complain that the trustee has failed to distribute the individual shares of the residuum of the estate into the respective trusts, resulting in the inability of each beneficiary to determine the exact amount of the corpus of his trust.

The sums on deposit at the local bank in the names of the various grandchildren were devised in trust by particular legacy. The residue of the Rosella B. Colletti estate was left undivided in trust to the five Curtis beneficiaries. This residue consisted of real estate, cash, stock and jewelry. Because these properties were not all divisible in kind, the trustee explained that for accounting purposes he accounted for the property as a whole and assigned the appropriate percentage interest to each trust. When called upon to give the principal balance of the Bryan Keith Curtis trust, the trustee had only to review his records and promptly came up with the figures. The trustee also noted that he was able to secure better interest rates by maintaining one large deposit of all trust funds rather than dividing it up into five smaller deposits. We find appellants’ contention that the trustee has maintained a common trust fund which does not comply with the requirements of La.R.S. 9:2128 without merit.

Although it can be argued that the action of the trustee in failing to maintain such properties forming part of the residuum of the Colletti estate as are divisible in kind in separate trusts constitutes a violation of the provisions of the testamentary trusts and/or the trust code, we, like the trial judge, conclude that such action would at best constitute a technical violation of the testamentary trusts and/or trust code. Further, in this regard, the record reflects that such action by the trustee enured to the benefit rather than to the detriment of the beneficiaries and cannot be considered as sufficient cause for removal of the trustee.

FAILURE TO PROPERLY ACCOUNT TO THE BENEFICIARIES

Plaintiffs contend that the trustee should be removed for failure to provide the beneficiaries with proper annual ac-countings in compliance with La.R.S. 9:2088, which provides as follows:

“A. A trustee is under a duty to a beneficiary to keep and render clear and accurate accounts of the administration of the trust.
B. A trustee shall render to a beneficiary or his legal representative at least once a year a clear and accurate account covering his administration for the preceding year. His first annual account shall relate to the calendar year during which he became responsible for the trust property, or, at his option, the first accounting period of not more than twelve months and shall be rendered within ninety days after the expiration of that calendar year or accounting period. Each annual account shall show in detail all receipts and disbursements of cash and all receipts and deliveries of other trust property during the year, and shall set forth a list of all items of trust property at the end of the year.”

During the course of his trusteeship, Roland Breaux prepared and supplied to the beneficiaries, income tax statements on the income earned and disbursements made on the various trusts. In addition, each income check disbursed by the trustee was accompanied by a statement of the amount of principal from which this income was derived, as well as the location of the account. These statements were mailed to each beneficiary quarterly until 1980 and monthly thereafter. In March of 1981, Bryan Keith Curtis requested a more detailed accounting which he received on July 11, 1981, after this suit was filed.

We find that the income tax statements and the abbreviated statements accompanying disbursements to the beneficiaries are insufficient to constitute compliance with the detailed annual accounting required by La.R.S. 9:2088. However, we find no error in the trial judge’s conclusion that the trustee’s initial failure to strictly comply with La.R.S. 9:2088 did not constitute sufficient cause for removal. A detailed accounting was supplied to the beneficiaries within reasonable delays once requested. The trustee explained his actions as an attempt to avoid the additional expense of preparing same. We are unable to conclude that this non-compliance with La.R.S. 9:2088 constitutes a breach of defendant’s fiduciary duty.

IMPROPERLY CHARGING EXPENSES AGAINST INCOME INSTEAD OF PRINCIPAL

Relying on La.R.S. 9:2156(0(3), plaintiffs assert that a certain penalty for early withdrawal of a certificate of deposit should have been charged against trust principal rather than income, and that the trial judge erred in failing to find non-compliance with this provision sufficient grounds for removal.

The trustee explained his reasons for charging the penalty against income rather than principal as follows: The interest produced on a certificate of deposit is income and was being paid monthly to the trustee. When the decision was made to withdraw the certificate of deposit before maturity, there was a recalculation of interest in accordance with the terms of the certificate of deposit, and some of the interest already paid thereon had to be returned to the Bank. Thus, the certificate was not sold for less, but some of the interest which accrued thereon was unearned and had to be paid back. Thus, the trustee reasoned that this was not an expense but a loss of income.

Whether or not the trustee was legally correct in this judgment, the reasons stated are sufficient to demonstrate that the trustee acted as a prudent administrator. To hold otherwise would burden a trust with the expenses for a legal opinion everytime a trustee exercised his judgment.

We agree with the trial judge that La.R.S. 9:1789 contemplates more than mere technical violations of the trust code as grounds for removal.

In sum, we find no abuse of discretion or manifest error in the trial judge’s findings that there exists no “substantial cause” for removal of the trustee and trust attorney. In the absence of manifest error or abuse of the trial court’s discretion on such findings of fact, we must affirm. Canter v. Koehring, 283 So.2d 716 (La. 1973).

For the above and foregoing reasons, the judgment of the trial court is affirmed. Costs on appeal are assessed against plaintiffs-appellants.

AFFIRMED.

      . Although the trial judge makes no specific mention of either appraisal in his reasons for judgment, it is reasonable to assume that, in considering this issue, he accepted the appraisal figure offered by Mr. Darby over that suggested by Mr. Parker. Our careful review of the evidence in this regard reveals no abuse of discretion in the trial court's apparent acceptance of the Darby appraisal.

      . Plaintiffs do not complain of the penalty assessed because of the early withdrawal. In fact, the record reflects that the early withdrawal was made with the full knowledge and consent of the plaintiffs.


source: Caselaw Access Project

author: STOKER, Judge.

license: Public Domain

text:
    SUCCESSION OF Salvador CAPRITO.
    No. 83-929.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writ Granted Jan. 25, 1985.

      Sanders & Owens, Pannal Alan Sanders and Lynwood Sanders, Orange, Tex., for plaintiff-appellant.
    Humphries & Humphries, Guy E. Hum-phries, Jr. and G. Earl Humphries, III, Alexandria, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   STOKER, Judge.

This is a dispute over the estate of Salvador Caprito, who died on March 9, 1982, at the age of ninety-eight. The dispute is between Mr. Caprito’s children, James C. Mayhew, a/k/a Noel Caprito, and Gertrude Caprito Daily, and his niece and nephew, Marguerite Caprito Dial and J.T. Caprito. Gertrude is represented by her guardian and daughter, Helen Vaughan.

FACTS

Mr. Caprito was born on December 23, 1883, in Franklin, Louisiana. He married Annie Ehrhardt on April 18, 1912, and they were divorced on December 14, 1915. One child of the marriage, Gertrude, was born before the divorce, and another, Noel Ca-prito, was born after the divorce on August 17, 1916. Apparently, Noel has used the name of his mother’s second husband for most of his life, and for purposes of clarity we will refer to him in this opinion as Mr. Mayhew.

Neither Mr. Caprito’s children nor his niece and nephew had contact with him until quite late in his life. Very little is known about Mr. Caprito’s whereabouts after his divorce, but it appears that he lived and conducted his business in Fort Worth, Texas, from at least 1955 until early 1977, just before his long-time friend and accountant, William McKinney, instituted guardianship proceedings in Tarrant County, Texas, in which Fort Worth is located.

According to Mr. McKinney, Mr. Caprito lived on a ranch in Tarrant County from around 1955 until he sold it in 1969. At that time, Mr. Caprito moved into a highrise apartment building for the elderly in Fort Worth where he remained until 1974 or 1975. After staying a short time with relatives in Alabama, he then moved into a hotel also in Fort Worth where he remained until early in 1977.

During his lifetime Mr. Caprito amassed a substantial fortune as an oilfield entrepreneur. Despite this fact, he apparently acquired very little personal property, but instead donated large amounts of money to individuals and charities. From the time he sold his ranch until his death, Mr. Capri-to literally lived “out of a suitcase.” A short time prior to institution of the guardianship proceedings, substantially all of Mr. Caprito’s assets were converted to certificates of deposit in a Fort Worth bank.

Sometime in February, 1977, Mr. Caprito went to Franklin, Louisiana', to stay with his nephew, J.T. Caprito. By proceedings instituted in Tarrant County, Texas, Mr. McKinney was appointed temporary guardian over the person and estate of Mr. Capri-to on July 5, 1977. Near the end of 1977, Mr. Caprito went to Lake Charles, Louisiana, to stay with his niece, Marguerite Ca-prito Dial. On January 17, 1978, Mr. Capri-to was declared incompetent by the Texas court, and Marguerite was named his permanent guardian.

Mr. Caprito remained in Marguerite’s home until December of 1981, when he fell and broke his hip. She was paid $891 per month, later increased to $961, to care for him. During that time, his guardianship changed twice. On June 7, 1978, his granddaughter, Helen Vaughan, replaced Marguerite as permanent guardian. During her term, Helen applied for and obtained an order from the Tarrant County court to transfer the certificates of deposit to a bank in Orange County, Texas, her place of domicile. She also obtained an order transferring the entire guardianship proceeding to Orange County. Helen resigned after a short time, and Mr. Mayhew was named permanent guardian on November 14,1978. On December 15, 1978, Mr. Mayhew obtained an order from the Orange County court permitting him to cash in the Texas certificates of deposit and buy new ones in the State of Louisiana, primarily in banks in Rapides Parish. The guardianship proceedings remained in the Orange County court.

After Mr. Caprito’s hospitalization in Lake Charles for hip surgery in December, 1981, Mr. Mayhew made arrangements for him to be placed in the Hilltop I Nursing Home in Pineville, Louisiana, where Mr. Mayhew lived. Mr. Caprito was admitted to Hilltop on January 7, 1982, where he remained until his final illness. He died on March 9, 1982, at the Rapides General Hospital in Alexandria, Louisiana.

On March 17, 1982, Mr. Mayhew and Helen Vaughan, representing her mother, filed a petition in Rapides Parish to probate a statutory will executed by Mr. Caprito on February 16, 1982, during his stay at Hilltop, leaving his entire estate to his children. (The cities of Pineville and Alexandria are located in Rapides Parish.) The order for probate was signed on March 17, and the judgment of recognition and possession was signed on March 26. Plaintiffs, J.T. Caprito and Marguerite Caprito Dial, filed a petition to annul the probated testament on May 17, 1982.

In the meantime, also on March 17, 1982, J.T. and Marguerite had filed for probate in Orange County, Texas, a will executed by Mr. Caprito on October 7, 1977, leaving his entire estate to them. As to the proceedings in Louisiana, plaintiffs filed a number of pretrial motions objecting to the jurisdiction and venue of the Louisiana court. These motions were denied and the Louisiana court considered the merits of the case. As to the merits, plaintiffs argue that the statutory will formalities were not met in the execution of the Louisiana will, that Mr. Caprito lacked the mental capacity to make a will, and that the procedural requirements for opening a succession were not met. Because we find that Louisiana did not have jurisdiction over Mr. Caprito’s estate, and the presence of his movable property in Rapides Parish did not establish venue there, we do not reach the merits of plaintiffs’ other claims.

ISSUES

In support of their position that the succession was properly opened in Rapides Parish, Louisiana, defendants rely on LSA-C.C.P. art. 2811 which provides:

“A proceeding to open a succession shall be brought in the district court of the parish where the deceased was domiciled at the time of his death.
“If the deceased was not domiciled in this state at the time of his death, his succession may be opened in the district court of any parish where:
(1) Immovable property of the deceased is situated; or,
(2) Movable property of the deceased is situated, if he owned no immovable property in the state at the time of his death.”

In succession proceedings venue is jurisdictional and cannot be waived. Succession of McElwee, 276 So.2d 391 (La.App. 2d Cir.1973); LSA-C.C.P. arts. 44 and 2811. Defendants argue that Mr. Caprito was domiciled in Rapides Parish at the time of his death. Alternatively, they argue that if Mr. Caprito was a nonresident of this State, the succession was properly opened in Rapides Parish by virtue of the location of some of his movable property there. We will consider these arguments separately-

DOMICILE

Defendants assert that plaintiffs failed to establish that Mr. Caprito was ever domiciled in Texas, and that the Texas guardianship proceedings were conducted as though Mr. Caprito was a nonresident. This is clearly not the case. Records from the Texas proceedings entered into evidence in this matter before us clearly indicate that the Texas Court proceeded as though Mr. Caprito was a domiciliary of that state. In fact, in some pleadings the Texas judge specifically deleted references to Mr. Caprito as a nonresident.

Despite the scarcity of facts regarding Mr. Caprito’s activities prior to 1977, we find that he did establish a domicile in Texas by virtue of his having owned a ranch there and residing there for, what seems to have been for him, a regular basis. To find otherwise would be to permit a collateral attack on the Texas decree. Such an attack may not be made unless the party seeking to deny full faith and credit to the decree shows that it could be collaterally attacked in the initial court. Didier v. Didier, 230 So.2d 436 (La.App. 1st Cir. 1969), writ refused, 255 La. 806, 233 So.2d 248 (1970). We also note that defendants participated in the Texas court proceedings without objection, even seeking and obtaining rulings for themselves.

Having determined that Mr. Caprito was domiciled in Texas when he was placed under guardianship, we must now decide whether his domicile was changed to Louisiana. The party seeking to show a change in domicile must produce sufficient evidence so that no reasonable doubt remains as to the intent to abandon the old and create a new domicile. Succession of Barger, 217 So.2d 779 (La.App. 4th Cir.1969), writ refused, 253 La. 877, 220 So.2d 459 (La.1969). The facts of this case are somewhat similar to those before the court in Barger. Mrs. Barger owned a home in Ascension Parish where she lived until January 4, 1967. She left at that time to stay with a friend in New Orleans. She moved into a nursing home in Jefferson Parish on May 16, 1967, where she resided until her death on February 1, 1968. Mrs. Barger kept her home in Ascension Parish even though she was not able to return to it due to her poor health. The court in Barger found that there had not been a change of domicile.

During the last several years of his life, Mr. Caprito suffered from a number of diseases, including kidney infection, organic brain syndrome and congestive heart failure. He required almost total care during his stay with Marguerite, and was bedridden while he was in the nursing home. While it is true that Mr. Caprito brought all of his personal effects with him to Marguerite’s house and, subsequently, to the nursing home, we do not find that sufficient to show a change in domicile. After selling his ranch, Mr. Caprito ■ apparently lived almost as a transient, keeping everything in his suitcase. It is clear from the record that his change of residence was brought about due to health reasons rather than an intent to change his domicile. From these facts, we cannot say that it has been shown beyond a reasonable doubt that Mr. Caprito’s domicile was changed.

Defendants also argue that Mr. Ca-prito could be found to have had his domicile in Rapides Parish by virtue of LSA-C.C. art. 39 which provides that “a person of full age, under interdiction, has his domicile with his curator.” We do not agree that this Louisiana provision is applicable to Mr. Caprito’s situation, because Texas has established and maintained its jurisdiction in this matter.

In appointing a guardian for the person and estate of Mr. Caprito, the Texas court exercised full jurisdiction over him. Mr. Mayhew was clearly appointed as a nonresident guardian who was required to designate an agent for service of process in Texas. Thus, the Texas court retained its jurisdiction over Mr. Caprito’s person and estate.

Defendants cite a number of cases in support of their position that Mr. Caprito’s domicile was that of Mr. Mayhew, but we do not find those authorities persuasive. In the cited cases the guardian was found to have authority to change the domicile of the ward either by virtue of the nature of the guardianship or, in one case, by specific permission of the court. Mr. Mayhew availed himself of Texas law in seeking to be appointed the guardian of Mr. Caprito and has never sought the Texas court’s permission for a change in the domicile of Mr. Caprito. After being appointed guardian, Mr. Mayhew continued to seek the permission of the Texas court in his dealings with Mr. Caprito’s property. Under the circumstances, we cannot find that Mr. Mayhew had authority to change Mr. Ca-prito’s domicile merely by placing him in a nursing home in Rapides Parish. See 25 Am.Jur.2nd Domicil, secs. 82-83.

LOCATION OF MOVABLE

We determined in the previous discussion that Mr. Caprito remained domiciled in Texas, thus, Rapides Parish does not have jurisdiction to open his succession on the basis of his domicile. Defendants argue alternatively that Rapides Parish has jurisdiction over the succession by virtue of the location of some of Mr. Caprito's movable property in that parish. We do not find that the circumstances under which Mr. Caprito’s property came to be located in Rapides Parish warrant the exercise of that parish’s jurisdiction over it.

Mr. Mayhew obtained permission from the Texas court to sell the certificates of deposit in Texas banks and reinvest the funds in Louisiana banks. The change was permitted, apparently for Mr. Mayhew’s convenience since he is a Louisiana domiciliary. The Louisiana banks from which Mr. Mayhew purchased certificates of deposit on behalf of Mr. Caprito filed receipts for safekeeping with the Orange County, Texas court in which they agreed not to release funds without permission of the Orange County court. Mr. Mayhew continued to administer Mr. Caprito’s estate through the Orange County court, filing the required bonds, statements of annual accounting, and seeking that court’s permission to spend funds of the estate. Clearly, the movable property was under the continuing jurisdiction of the Texas court. Because the property was in this State only through permission of the Texas court, we hold that its mere location here did not confer jurisdiction over it.

DECREE

For the above reasons, the judgment of the trial court is reversed. All claims regarding the succession of Salvador Caprito are dismissed. Costs at trial and on appeal are assessed to defendants-appellees.

REVERSED AND RENDERED.


text:
    Curtis D. SELLERS, Plaintiff-Appellant, v. CITY OF ABBEVILLE, et al., Defendant-Appellee.
    No. 83-940.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writ Denied Jan. 25, 1985.

      Lucius A. Hornsby, Jr., Lafayette, for plaintiff-appellant.
    Edward O. Taulbee, IV of Martin & Taul-bee, Lafayette, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   STOKER, Judge.

Curtis D. Sellers, the plaintiff in this worker’s compensation case, was injured on or about February 2, 1983 while preparing to undergo a physical readiness test conducted by the Abbeville City Police Department.

Mr. Sellers was previously employed by the City of Abbeville as a police officer but was terminated in November, 1982 because he failed to pass the Civil Service test. He later passed the test. In February, 1983 the City of Abbeville required applicants for employment as police officers to pass a physical agility test in addition to the Civil Service test.

On the morning he was injured, Mr. Sellers went to the Abbeville City Police Department and was taken to the Lafayette City Police Station for the physical agility test. He was told to warm up prior to taking the test. He injured himself while warming up or practicing.

The primary issue in the case is whether Mr. Sellers is an employee for purposes of worker’s compensation benefits. The trial court found that no employer-employee relationship existed at the time of the accident and that, therefore, Mr. Sellers is not entitled to benefits under the terms of the Worker’s Compensation Act.

In Gaspard v. Travelers Insurance Company, 284 So.2d 104 (La.App. 3rd Cir. 1973), the court states that the essence of the employer-employee relationship is the right to “control.” The four primary evi-dentiary factors considered in deciding the above are: (1) selection and engagement, (2) payment of wages, (3) power of dismissal, and (4) power of control.” In plaintiff’s first assignment of error, he argues that the trial court was clearly wrong when it found that all four of these factors were necessary for there to be an employer-employee relationship. The trial court did not find that all four were necessary. The court found that none of the essential elements existed at the time of the accident.

Plaintiff’s second assignment of error was that “[t]he trial court was wrong in concluding that Curtis D. Sellers was not an employee of the City of Abbeville when Mr. Sellers was performing work ordinarily performed by policemen, soldiers, marines, sailors, and others engaged in vigorous activities.” The trial transcript shows that no evidence was introduced as to what work is ordinarily performed by policemen, soldiers, marines, sailors, and others engaged in vigorous activities. However, even conceding that the warm-up activity Sellers was engaged in resembled activities ordinarily performed by such persons, that fact does not indicate an employment relationship.

The trial court was not wrong in concluding that Sellers was not an employee of the City of Abbeville at the time of his injury. He had been terminated in November of 1982. No wages were paid to Sellers after that time and no wages were to be paid him for taking the test.

Plaintiff then argues that he was a casual employee of the City of Abbeville. His third assignment of error was that the court was clearly wrong in failing to apply the law as found in Beard v. Wilson Wholesale Distributors, Inc., 215 So.2d 664 (La.App. 1st Cir.1968) and Pflieger v. Haws, 180 So.2d 892 (La.App. 1st Cir.1965).

In the Beard case, Darrell Beard, a 15-year-old boy, went to the premises of Wilson Wholesale Distributors to look for work. He was told he was not needed that day, but he remained on the premises. When it began to rain the assistant manager, who was authorized to hire the boy when his services were necessary, sent Darrell and a couple of the regular employees to cover holes in the roof of the warehouse with visqueen. Darrell was injured when he fell off the roof. The court found that Darrell was an employee and that his sole remedy for his injuries was in worker’s compensation. At the time of the accident Darrell was performing duties in furtherance of his employer’s trade. He fell under the presumption of LSA-R.S. 23:1044, “A person rendering service for another in any trades, businesses or occupations covered by this Chapter is presumed to be an employee under this Chapter.”

The Beard case can be distinguished from the present situation. Mr. Sellers was not rendering services for the City of Abbeville. He was taking the test for his own benefit so that he would be eligible for employment. He does not fall within the presumption "of Section 1044 of the Louisiana Worker’s Compensation Act. There is no employer-employee relationship. Mr. Sellers is not covered under the Worker’s Compensation Act.

In the Pflieger case, the plaintiff was found to be an employee pro hoc vice. He was injured when unloading the truck of a company that was not his regular employer. He was found to be performing services for the owner of the truck, and thereby fell under the presumption of Section 1044. He was a casual employee of the owner of the truck. Again, Mr. Sellers was not performing services for the City of Abbeville and was not a casual employee.

We can find no contract of employment between Mr. Sellers and the City of Abbe-ville. Since there is no employer-employee relationship, the plaintiff is not entitled to worker’s compensation benefits.

The decision of the trial court is affirmed.

AFFIRMED.

FORET, J., dissents.


author: KNOLL, Judge.

text:
    Lynn Richard BRAY, et al., Plaintiff-Appellant, v. T.H. ISBELL, et al., Defendant-Appellee.
    No. 83-943.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.
    Writ Denied Jan. 7,1985.

      Sandoz, Sandoz & Schiff, Lawrence B. Sandoz, III, Opelousas, for plaintiff-appellant.
    William Tracy Barstow, Opelousas, for defendant-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   KNOLL, Judge.

Plaintiffs, Lynn Richard Bray, his mother, Nina Sue Landry, and his stepfather, Robert R. Landry, appeal from a judgment dismissing their claim for damages against T.H. Isbell, owner of the Sunset Motor Inn, and John Dan Wells, the inn’s general maintenance man. Plaintiffs seek damages for injuries Bray suffered when Wells shot him after Bray broke into a vending machine on the premises of the Sunset Inn. The trial court concluded that Bray was 100% at fault and his injuries were dam-num absque injuria.

On appeal Bray urges two errors. Since we are affirming, and find that the record supports that Wells used reasonable force under the circumstances, we will address only that assignment of error.

On March 25, 1981, Bray and two companions, Roland Morvant and Terry Fonte-not, drove to the Sunset Inn at approximately 11:30 p.m. They parked their car on the service road in front of the inn and, while Fontenot slept in the car, Bray walked to the vending machines at the inn as Morvant waited nearby. Bray broke into a vending machine and stole the coin box. Mrs. Gastineau, the inn’s manager, saw Bray and immediately alerted her son, Wells, who was asleep on the couch in her apartment. Wells went to the back door of the apartment and saw Bray breaking into the machine with a tire tool which prompted Wells to obtain his mother’s .22 pistol. When he shouted at the intruders, Bray and Morvant ran toward their parked car carrying the money box, a tire tool, and a lug wrench. As Bray and Morvant reached the car, Wells, who was about 20 feet away, asked them to drop their weapons, put their hands up, and go inside the inn so he could call the police. Instead, Bray and Morvant ran past their car, away from Wells. When they were approximately 70-75 yards away, Wells fired three warning shots, one of which struck Bray in the lower back and exited through his stomach. Bray has undergone four surgeries.

Plaintiffs contend that Wells’s use of force against Bray was unreasonable under the circumstances. The law is well settled that a plaintiff cannot recover damages for a battery if he is at fault in provoking the difficulty in which he is injured. Neville v. Johnson, 398 So.2d 111 (La.App. 3rd Cir.1981); Levesque v. Saba, 402 So.2d 266 (La.App. 4th Cir.1981); Tripoli v. Gurry, 253 La. 473, 218 So.2d 563 (1969). However even where a person is the aggressor, the person retaliating may use only so much force as is reasonably necessary to repel the attack, and if he goes beyond this, he is liable for damages. Neville, supra. Where a person reasonably believes he is threatened with bodily harm, he may use whatever force appears reasonably necessary to protect against the threatened injury. Byrd v. Isgitt, 338 So.2d 374 (La.App. 3rd Cir.1976); Hesse v. Busby, 379 So.2d 25 (La.App. 3rd Cir.1979), writ denied, 381 So.2d 1234 (1980). Each case is dependent on its own facts. Roberts v. American Employers Ins. Co., Boston, Mass., 221 So.2d 550 (La.App. 3rd Cir. 1969).

Resort to dangerous weapons to repel an attack may be justifiable in cases when the fear of personal danger is genuine and'founded on facts likely to produce similar emotions in reasonable men. Ne-ville, supra; Levesque, supra; McCullough v. McAnelly, 248 So.2d 7 (La.App. 1st Cir. 1971). It is only necessary that a person have grounds which lead a reasonable man to believe force is necessary, and that he actually so believes. Although all facts and circumstances must be taken into account to determine the reasonableness of his belief, detached reflection or a pause for consideration cannot be demanded under circumstances which require split second decisions. Levesque, supra.

A reviewing court must give substantial weight to the trier of fact’s conclusions, and is obliged to accept reasonable evaluations of credibility and inferences of fact, even if other evaluations and inferences are also reasonable. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Company, 283 So.2d 716 (La. 1973).

In its reasons for judgment, the trial court stated in part:

“... this Court believes the use offorce in this matter was reasonable. If the Defendant shot to run these people off so they wouldn’t come back, and steal, and/or harm him or his mother; or, if he shot, as the Court believes he did, thinking he was threatened (see evidence about the lugwrench [sic] one was still carrying) by the object in the perpetrator’s hand, the Defendant used what the Court believes was reasonable force. This Court still believes and finds that taking all the facts and circumstances together, as they exist in this case, the ‘reasonable’ man would have done what Defendant did in the situation. It is difficult [not] to believe that in hot pursuit of a criminal in near proximity to the crime scene; with a parked car; with one armed with an object in his hand which could be a weapon; and with a pause for consultation, as the perpetrators acted; ... this Defendant was justified in . shooting.”

We find that the record supports the trial judge’s determination that Wells used reasonable force under the circumstances. Bond v. Toriello, 260 So.2d 727 (La.App. 4th Cir.1972), writ denied, 262 So.2d 788; Edwards v. Great American Insurance Company, 146 So.2d 260 (La. App. 2nd Cir.1962).

For the foregoing reasons, the judgment of the trial court is affirmed. Costs of this appeal are assessed to the plaintiffs-appellants.

AFFIRMED.

STOKER, J., dissents.


text:
    STATE of Louisiana, Plaintiff-Appellee, v. Daniel D. FLOYD, Defendant-Appellant.
    No. CR83-1154.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Rehearing Denied Nov. 26, 1984.

      Bertrand De Blanc, Sr., Abbeville, J. Lyle De Belleveue, Crowley, for defendant-appellant.
    J. Nathan Stansbury, Dist. Atty., Lafayette, for plaintiff-appellee.
    Before FORET, STOKER and KNOLL, JJ.
   STOKER, Judge.

Defendant, Daniel D. Floyd, appeals from his jury conviction of attempted first degree murder for which he was sentenced to a term of fifty years in the custody of the Department of Corrections. We affirm.

FACTS

Defendant’s conviction arose from the shooting of Louisiana State Trooper Ferdie Miller during the early morning hours of May 15, 1983. Sometime around midnight, Trooper Bradley Breaux observed the defendant in a black truck traveling at approximately 80 m.p.h. eastbound on Interstate 10. Trooper Breaux turned on his flashing lights and siren and began pursuing the vehicle. The defendant, aware that he was in possession of a stolen truck, a stolen gun, and an illegal drug and that a federal warrant had been issued for his arrest, accelerated in an attempt to get away from Trooper Breaux.

Trooper Breaux’s request for assistance was answered by Trooper Miller who also turned on his lights and siren. The defendant passed Trooper Miller and both police cars continued pursuit. The defendant exited the interstate at Louisiana Highway 35 into the town of Rayne. Trooper Miller remained close behind, and Trooper Breaux continued to the next intersection in an attempt to cut off a possible escape route. In his attempt to lose Trooper Miller in a residential section of Rayne, the defendant failed to negotiate a right turn and ran into a ditch.

According to Trooper Miller, he stepped out of his car and asked the defendant to exit from his truck. He testified that the defendant got out of the truck, wedged himself between the cab and the door, and opened fire. Trooper Miller stated that he was shot twice in the chest before drawing his weapon and returning fire, and was shot twice more in his hip and foot as he moved for the cover of some trees. The defendant testified that he heard breaking glass and felt a bullet striking his chest before he exited from the truck and opened fire to cover his escape. Gary Wasnick, a hitchhiker who was picked up by the defendant earlier in the evening, corroborated Trooper Miller’s version of the incident. He testified that the defendant exited from the truck and opened fire, at which point Mr. Wasnick dived for the floorboard.

Defendant fled the scene and collapsed more than 200 feet from his truck. Other law enforcement officials located the defendant by following the trail of blood from his truck. First aid was administered and both Trooper Miller and the defendant were transported by ambulance to the hospital.

On appeal, defendant argues that the trial court erred in the following respects:

1. In limiting his peremptory challenges to jurors to eight rather than twelve as previously allowed by statute;
2. In finding that the defendant had the specific intent to kill the officer, an essential element of the crime of attempted first degree murder;
3. In failing to appoint a sanity commission to examine defendant’s mental capacity to stand trial, and;
4. In failing to grant a change of venue.

PEREMPTORY CHALLENGES

The defendant specified three assignments of error dealing with the matter of challenges to jurors, and we will consider all three under this heading.

With regard to the number of peremptory challenges, the defendant asserts that the trial court applied Act 495 of 1983 amending LSA-C.Cr.P. art. 799 in an ex post facto manner. Act 495 reduces the number of peremptory challenges available to the State and the defendant from twelve to eight. Its effective date was August 30, 1983, prior to defendant’s trial which began on September 27, 1983. Defendant claims that he had a vested right to twelve peremptory challenges under the law as it provided on the date he committed the offense, May 15, 1983.

It appears that the defendant did not raise this constitutional ground at the time he objected. After defendant’s counsel challenged one of the jurors, Mr. Frank Pierce, for cause, the following exchange took place between the trial judge and counsel for the defendant:

“THE COURT: All right. Well, I still believe he’s qualified.
MR. DEBLANC: Your Honor, we have no more peremptory [sic] challenges.
THE COURT: I understand.
MR. DEBLANC: And so we will object to the Court’s ruling and make a part of the objection the questions and answers, and the Court’s ruling.
THE COURT: Yes.
MR. DEBELLEVUE: The Court has already ruled that he’s acceptable?
THE COURT: Yes. Yes. I’m satisfied that he can lay it aside and — ”

It is well settled that the grounds for an objection must be stated at the time an objection is made and that the grounds for it cannot be urged for the first time on appeal. State v. Clayton, 427 So.2d 827 (La.1983). It is apparent from the colloquy quoted above that defendant did not assert his ex post facto argument; therefore, he is precluded from raising it on appeal.

Assuming for the sake of argument that the objection made was sufficient to bring the issue of the application of Act 495 before the court, it is our opinion that the act was properly applied.

It has long been the law that a defendant in a criminal case has a constitutional right to challenge jurors peremptorily; however, the number of those challenges is to be fixed by law. LSA-Const. of 1921, art. 1, sec. 10 and LSA-Const. of 1974, art. 1, sec. 17. If the statute providing for the number of peremptory challenges is merely procedural, it may have retroactive effect without violating the constitutional prohibition against ex post facto laws. State v. Sepulvado, 342 So.2d 630 (La.1977). If the statute is found to be substantive law, defendant would have the right to the number of challenges provided for by law at the time he committed the offense.

Our Supreme Court has held in State v. Elmore, 179 La. 1057, 155 So. 896 (1934), that the article regulating the number of peremptory challenges is procedural and not substantive. We find that holding applicable to the case before us. Even though the exercise of peremptory challenges is a “substantial” right as recognized by the court in State v. Sugar, 408 So.2d 1329 (La.1982), the number of challenges to be made is a procedural matter.

Jurisprudence has established certain criteria to consider in determining whether a law is ex post facto. After reviewing these criteria, the court in State v. Sepulvado, supra, made the following observation:

“As the issue is viewed in the context of this case the Court must decide whether the statute materially impairs the right of the accused to have the question of his guilt determined according to the law as it was when the offense was committed. At the same time, it must be recognized that the accused is not entitled of right to be tried in the exact mode, in all respects, that may be prescribed for the trial of criminal cases at the time of the commission of the offense for which he is charged.” (citations omitted)

We do not find that the change in the number of peremptory challenges materially impaired the right of this defendant to have his guilt determined according to the law as it was when the offense was committed.

In support of his position that the number of peremptory challenges is a matter of substantive law protected by the prohibition against ex post facto laws, defendant quotes the following language from State v. Monroe, 366 So.2d 1345 (La.1978):

“Therefore, an erroneous ruling of a trial judge which deprives a defendant of one of his peremptory challenges constitutes a substantial violation of a constitutional or statutory right requiring reversal of his conviction and sentence. La.Code Crim.P. art. 921.”

We do not believe that the above language constitutes a holding that the number of peremptory challenges is a constitutional right. Rather it is a procedural right established by statute. The language used by the court in the paragraph quoted above simply tracks the language of LSA-C.Cr.P. art. 921 as it provided prior to amendment by Act 86 of 1979. Prior to amendment, that article provided in pertinent part:

“A judgment or ruling shall not be reversed by an appellate court on any ground unless in the opinion of the court after an examination of the entire record, it appears that the error complained of ... constitutes a substantial violation of a constitutional or statutory right.”

The trial court’s rulings regarding challenges to jurors do not constitute error.

Defendant claimed in one of his assignments of error concerning challenges to jurors that the trial court improperly denied his challenge for cause as to prospective juror Mr. Paul Olivier, who was later named jury foreman. This claim was not argued in brief on appeal and is considered abandoned. State v. Dewey, 408 So.2d 1255 (La.1982). In any event, the record reveals that there was in fact no challenge for cause made as to Mr. Olivier.

SPECIFIC INTENT

Defendant argues that his motion for new trial should have been granted because the jury verdict was contrary to the law and the evidence in that the State did not prove that he had a specific intent to kill the victim.

It is well settled that the standard of review to be applied to the issue of sufficiency of the evidence is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty. Specific intent is a state of mind which need not be proven as a fact, but may be inferred from the circumstances of the transaction and the actions of the defendant. State v. Graham, 420 So.2d 1126 (La.1982).

Defendant argues in the present case that his intent was to simply escape, not to kill. His clear intent to escape does not prove he had no intent to kill, but it does give him a clear motive. Defendant also contends, as he did at trial, that the officer fired first, and he simply returned fire. We note that Trooper Miller knew only that defendant was guilty of a traffic violation at the time the truck stopped. The jury, after hearing all of the evidence, obviously did not believe defendant’s version of the incident. Defendant fired eleven times at the officer, emptying his gun cartridge and hitting the officer four times. In viewing the evidence in the light most favorable to the prosecution, it is our opinion that a rational trier of fact could easily find that the defendant had a specific intent to kill the officer.

SANITY COMMISSION

By this assignment the defendant asserts that he presented sufficient evidence of his mental incapacity to proceed to trial to justify appointment of a sanity commission, and that the trial court erred in failing to do so.

The only evidence given at the hearing on the motion to order the appointment of the commission was the testimony of the defendant himself. -The trial court denied the motion for the following oral reasons:

“BY THE COURT: Article 643 states that the Court shall order a mental examination of the defendant when it has reasonable ground to doubt the defendant’s mental capacity to proceed; and I have heard nothing here today that makes me doubt his capacity to proceed. He has an excellent memory, can name all of the drugs he was taking even as a juvenile. He is coherent. He knows the dates of his incarcerations, the reasons why he was in the Block, why he was not. He admitted making notes, writing questions for his counsel to ask previously. He doesn’t show his situation has changed. He’s not a drug addict; he hasn’t been on drugs. There’s nothing to indicate that he can’t assist his counsel. He claims confusion; I haven’t seen any confusion at all. He’s hot so confused that he would name one of the coke dealers, because he knows the possible consequences there. The Court will deny the Motion.”

The decision to appoint a sanity commission is a matter within the sound discretion of the trial judge, and his decision will not be reversed absent a clear showing of an abuse of discretion. State v. Wilkerson, 403 So.2d 652 (La.1981). The trial judge gave clear reasons for denying the motion for appointment of a sanity commission, and there does not appear to be a clear abuse of his discretion. The motion was properly denied.

CHANGE OF VENUE

Defendant, argues that the trial court committed error in denying his motion for a change of venue. Defendant argues that as a result of newspaper, television, and radio coverage, prejudice was created in the minds of the public in Acadia Parish to such an extent that he could not receive a fair and impartial trial. The only evidence presented at the hearing on this motion was a newspaper article appearing two days after defendant’s arrest. The trial judge in denying the motion indicated that the article was a factual representation of the incident and did not show bias and prejudice in the community. We agree.

A review of the voir dire examination does not reveal the existence of any prejudice in the community against the defendant. Although some of the prospective jurors recalled hearing something about the incident in the news, none had formed any positive opinions as a result of those reports. The motion for a change of venue was properly denied.

For the above reasons, the defendant’s conviction is affirmed.

AFFIRMED.


author: EDWARDS, Judge. SAVOIE, Judge,

text:
    STATE of Louisiana v. Ronald D. AUSTIN.
    No. 83 KW 1370.
    Court of Appeal of Louisiana, First Circuit.
    Oct. 11, 1984.
    Office of Dist. Atty., Ascension Parish, Donaldsonville, for respondent.
    Alan J. Robert, Gonzales, for relator.
    Before EDWARDS, SHORTESS and SA-VOIE, JJ.
   EDWARDS, Judge.

Ronald D. Austin, convicted of first offense DWI under LSA-R.S. 14:98, applied for a writ of review on December 8, 1983, challenging the sufficiency of the State’s evidence. On December 16, this court ordered the state to file a response to defendant’s application by January 4, 1984. On January 19, after the State had failed to respond as ordered, we granted the application and issued the writ to review the State’s case.

While returning from a Jambalaya Festival late at night, Austin rear-ended a car being driven without taillights on U.S. 61, a major highway just north of La. 621. Arriving at the scene to investigate, State Trooper Doug Robertson noticed, as he approached to question Austin, that his eyes were “red and glassy, and he had a moderate odor of alcohol about his person.” He gave both Austin and the driver of the other car, who admitted to being at fault in the accident, a field sobriety test.* The other driver did well, but Austin “didn’t do quite — didn’t do too well, he did not pass the field sobriety test.”

In the test Robertson required Austin to walk heel to toe for ten paces, turn and retrace his steps in the same way. He testified that Austin swayed when he turned and stumbled as he walked. He then had Austin tilt his head back, close his eyes and touch his nose with his index fingers. Austin failed to touch the tip of his nose, although “he may have touched the bridge of his nose.” Robertson also noticed that Austin’s speech was slurred and the odor of alcohol was stronger when he talked. He concluded that Austin was intoxicated and arrested him for driving while intoxicated.

Robertson admitted on cross examination however that a field sobriety test — indicative at most of impaired motor skills and at least of simple uncoordination — without a chemical or other test of the blood does not conclusively or even reliably determine that a person is intoxicated or under the influence of alcohol or other drugs. Some peo-pie can fail the test even though they are stone sober.

For reasons undisclosed in the record, the results of a photoelectric intoximeter test, which might have allowed the State to rely on the presumption of intoxication as provided in LSA-R.S. 32:662, were not admitted into evidence.

Neither of the other two testifying witnesses — one for the State, the other for the defendant — remembered smelling any alcohol, although they both testified they weren’t paying that much attention. Mr. Masters, the driver responsible for the accident, did remember seeing Austin sway but not stumble. Mr. Paul Villemarette, a disinterested defense witness, was travelling just ahead of Austin in the outside lane. He testified:

A vehicle — the same that I was in — as I approached it I was in very short distance of it I noticed that there were no taillights on the vehicle. I had to swerve to miss the car into the left hand lane. And as soon as I passed it I proceeded back in the right hand lane I looked up in my rear view mirror, and I saw the car that was behind me hit the car that I had to swerve to miss.

He also testified that he did not notice any slurred speech although Austin looked a little dazed after the accident and expressed concern that his wife might be injured.

The inference can be drawn from this testimony that Austin should have been able to see and avoid Masters’ automobile just as Villemarette had done had he not been under the influence.

According to State v. Fontenot, 408 So.2d 919, 921 (La.1981):

Operating a vehicle while intoxicated is defined as “the operating of any motor vehicle, aircraft, vessel or other means of conveyance while under the influence of alcoholic beverages, narcotic drugs, central nervous system stimulants, hallucinogenic drugs or barbituates.” R.S. 14:98. In order to convict an accused of driving while intoxicated the state need only prove that (1) defendant was operating a vehicle or other conveyance; and (2) that defendant was under the influence of alcoholic beverages or some type of drug.

The trial court found the defendant guilty as charged, reasoning that

[the] failing of the field sobriety test in and of itself, does not give a conclusive result. However, the Court feels that when this is compared with the other signs observed by the trooper, and not contradicted, such as the red eyes, glassy eyes, odor of alcohol, (moderate when in the vicinity of the defendant, and stronger when speaking with the defendant), and the slurred speech, together with the fact that the defendant had been at a festival which served alcoholic beverages, although there was no direct evidence of the defendant’s ingestion of alcohol. The Court feels that the State has proven [an impairment of motor skills] due to the ingestion of alcohol, or some other drug ... [and] has met its burden of proof.

The defendant argues first that the State did not prove that he was intoxicated or under the influence of alcohol because Robertson administered an abbreviated and therefore invalid version of the field sobriety test recommended in the State Trooper Training Manual. He required Austin to walk only ten of the recommended twenty paces in the walking test, had him tilt his head back instead of face forward in the finger-to-nose test, and either combined the balance test with the finger-to-nose test or omitted it altogether. We consider these variations too minor to affect the validity of the test.

Second, he argues that because of its general unreliability, the field sobriety test is an invalid means of determining intoxication without more direct (i.e. scientific) proof of alcohol consumption. Notwithstanding the admitted shortcomings of a field sobriety test, we are not prepared to hold that the State must produce direct evidence of alcohol or other drug consumption (such as a chemical analysis of the defendant’s blood) before it can obtain a conviction for drunk driving when there is other reliable circumstantial evidence sufficient to support the finding of intoxication.

In fact, LSA-R.S. 32:662(C), concerning the use of chemical tests, specifically permits the use of other competent evidence bearing upon the question of whether the person was under the influence of alcoholic beverages.

Credibility evaluations to resolve conflicting testimony are evaluations of the weight, not the sufficiency, of the evidence, which are factual determinations solely within the discretion of the trier of fact and not reviewable on appeal. All of the evidence in this ease, including Robertson’s testimony reflecting his observations of the defendant before and during the field sobriety test, is sufficient to support the finding of intoxication, and the trial judge’s decision to credit his testimony, even though contradicted, is a factual matter beyond appellate review. See State v. Johnson, 446 So.2d 1371 (La.App. 1st Cir.1984). We cannot say therefore that no rational trier of fact could have found Austin guilty beyond a reasonable doubt. We must therefore affirm the conviction.

AFFIRMED.

SAVOIE, J., dissents and assigns reasons.

SAVOIE, Judge,

dissenting.

I respectfully dissent.

The standard of review for sufficiency of evidence to support a conviction is whether, viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found that the State proved the essential elements of the crime and defendant’s identity as perpetrator of that crime,beyond a reasonable doubt. See La.C.Cr.P. art. 821. The statutory rule as to circumstantial evidence is that assuming every fact to be proved that the evidence tends to prove, in order to convict, it must exclude every reasonable hypothesis of innocence. L.S.A.-R.S. 15:438. Exclusion of every reasonable hypothesis of innocence is, therefore, a component of the more comprehensive reasonable doubt standard where circumstantial evidence is used to convict. State v. Nealy, 450 So.2d 634 (La.1984).

In this matter, the only evidence that the defendant was driving while intoxicated is the testimony of State Trooper Doug Robertson. Trooper Robertson’s testimony is completely unsupported by any other testimony and, in point of fact, is contradicted by Mr. Masters, driver of the other vehicle, and Mr. Paul Villemarette, an independent and unbiased witness to the accident.

The essence of Trooper Robertson’s testimony is three-fold: (1) that Mr. Austin’s eyes were red and glassy; (2) that he had a moderate odor of alcoholic beverage about his person; and (3) he failed to pass a field sobriety test.

As to Mr. Austin’s eyes being red and glassy, this is unsupported by the testimony of either Mr. Masters or Mr. Villemar-ette. Assuming that his eyes were red and glassy, such condition could result from any one of a number of causes, not the least of which could have been the fact that he had just been involved in an automobile accident. This testimony, standing alone, is not indicative in any way that Mr. Austin was driving while intoxicated or driving while under the influence of alcohol.

Trooper Robertson’s testimony that the defendant had a moderate odor of alcoholic beverage about his person is unsubstantiated either by Mr. Villemarette or Mr. Masters. The second witness called by the State, Mr. John Masters, the driver of the vehicle which caused the accident, stated that he did stand next to Mr. Austin while the trooper was questioning him, but he did not notice any odor of alcohol. Two interesting observations as to Mr. Masters’ testimony should be made: (1) this was the State’s witness who was testifying in direct contradiction with the testimony of Trooper Robertson; (2) it would have been in Mr. Masters’ best interest to testify just the opposite in order to avoid civil liability as a result of the accident. Mr. Villemarette, who was called as defendant’s witness and who was totally unbiased in the matter, stated that he did, in fact, talk to Mr. Austin following the accident and that he did not smell any odor of alcohol coming from Mr. Austin. Thus, the testimony relative to Mr. Austin’s having the odor of alcohol about him is negated by the testimony of the State’s witness, Mr. Masters, and defendant’s witness, Mr. Villemarette.

Finally, the .State relied upon the field sobriety test to obtain a conviction of Driving While Intoxicated against Mr. Austin., No chemical test for intoxication or blood test for intoxication was offered by the State to show that the defendant was legally intoxicated. Therefore, we should examine, in detail, the field sobriety test administered by Trooper Robertson.

The abbreviated field sobriety test consisted of requiring the defendant to walk ten paces towards him and asking defendant to place his feet together, tilt his head back, close his eyes, and touch his nose with his forefinger. On the walking test, the officer testified that he asked defendant to walk towards him for approximately ten paces, then return and walk away. The officer admitted, under cross-examination, that the State Police Manual requires that defendant be required to walk twenty feet in one direction, turn and walk back in order to properly administer a field sobriety test. The officer required the defendant to walk a straight line, even though there, was no line marking on the highway, and required the defendant to walk heel-to-toe for this test. Mr. Austin argues, in brief, that no one walks heel-to-toe as a normal means of traversing from one location to another, that this test is designed to force an individual, even one who is not impaired, to be awkward and unbalanced. I agree. To ask Mr. Austin, who had just been involved in an automobile accident, to walk heel-to-toe on an imaginary, straight line, to turn and then walk back, is indicative of nothing. It is to Mr. Austin’s credit that both Mr. Masters and Mr. Villemarette thought that he had performed his test well.

The second test administered to defendant was a balance test wherein the defendant was required to tilt his head back, close his eyes, and touch his nose with his index finger. Trooper Robertson stated defendant failed to pass this test because he missed the tip of his nose. He did admit, however, that the defendant did, in fact, touch his nose during this test with both fingers, but not with the tip of his finger.

We note once again that this test is more stringent than that called for by the Police Manual. The Police Manual does not require that a person tilt his head back. It requires only that one stand straight with eyes closed, and touch his nose with his index finger. Once again, Mr. Masters and Mr. Villemarette both testified that the defendant had passed this test also.

Trooper Robertson made reference to the defendant’s slurred speech. However, this is negated once again by Mr. Villemarette and Mr. Masters.

Under the particular circumstances of this case, the worst that can be said of defendant is that the field sobriety test was inconclusive. Or, stated in another manner, viewed in the light most favorable to the prosecution, this evidence would warrant a finding that the field sobriety test and procedures were inconclusive as to whether or not any alcohol had been consumed by defendant, or how much alcohol had been consumed by the defendant.

This is not a swearing match between the arresting officer and the driver. The State Trooper gave his testimony. In support thereof, the State presented the testimony of Mr. Masters. Mr. Masters’ testimony, however, completely contradicted the testimony of the State Trooper. Then the defendant presented the testimony of Mr. Villemarette who was totally unbiased since he knew neither Mr. Masters, Trooper Robertson, nor the defendant, Mr. Austin. Mr. Villemarette’s testimony also completely and totally contradicted the testimony of Trooper Robertson. The evidence does not even support a suspicion that defendant had been drinking.

The majority opinion relies on the fact that since Mr. Villemarette was driving immediately in front of defendant and he was able to swerve and avoid running into the rear of the vehicle driven by Mr. Masters, the inability of defendant to do so was evidence that he was driving while intoxicated. This is, at best, speculation, and there is nothing in the record to support this fact.

A very reasonable hypothesis in this matter is that the defendant, having just been involved in an automobile accident, was a little dazed and was concerned about his wife, who he feared was injured in the accident. A reading of the entire record reflects that not only is this a reasonable hypothesis, it is the only reasonable hypothesis.

For the above and foregoing reasons, I respectfully dissent.


text:
    Connie Deshotel BUXTON, Plaintiff-Appellant, v. Berlin M. BUXTON, Defendant-Appellee.
    No. 83-952.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.

      William J. Bennett, Marksville, for plaintiff-appellant.
    Norman L. Williams, Lake Charles, for defendant-appellee.
    Before GUIDRY, STOKER and YEL-VERTON, JJ.
   GUIDRY, Judge.

On July 19, 1982, the plaintiff, Connie Buxton, filed a petition for separation from her husband. By interlocutory order rendered August 11, 1982, Mrs. Buxton was granted temporary custody of the couple’s two minor children and was awarded possession and use of the family home. The order also required payment by the husband of the house note due each month to Farmers Home Administration. In addition, Mr. Buxton was ordered to pay alimony pendente lite in the amount of $200.00 monthly and $100.00 child support monthly.

. On August 27, 1982, a judgment of separation from bed and board was signed which contained the same support provisions as the interlocutory order of August 11th except that the judgment contained no provision requiring payment of the house note by Mr. Buxton.

On March 4, 1983, Mrs. Buxton filed suit for divorce under La.R.S. 9:302 and sought by rule to have the judgment of August 11, 1982 made executory and for a contempt finding against Mr. Buxton for his alleged failure to pay the monthly house notes due FHA. Mrs. Buxton also prayed for permanent custody of the children, alimony and child support. On May 31, 1983, the above matters were consolidated and after hearing the evidence, the trial court rendered judgment granting the divorce and finding Mrs. Buxton free from fault. The trial court awarded Mrs. Buxton $150.00 per month permanent alimony; permanent custody of the children subject to the husband’s visitation rights; and, child support of $100.00 per month. The trial court denied the relief prayed for by the rule.

Plaintiff, Mrs. Buxton, appeals contending that the trial court erred in (1) awarding only $150.00 per month in permanent alimony; and, (2) failing to grant the relief prayed for by the rule.

ALIMONY

Plaintiff contends that the trial court erred in reducing her alimony award from $200.00 per month to $150.00 per month. The plaintiff had been awarded alimony pendente lite in the amount of $200.00 monthly which was reduced to the figure of $150.00 as permanent alimony.

When the court awards less alimony after divorce than was awarded pen-dente lite, it is not “adjusting” a prior alimony award, but is instead making a new award based on different considerations. Permanent alimony (La.C.C. Art. 160) is in the nature of a pension. Alimony pendente lite (La.C.C. Art. 148), on the other hand, is based on the husband’s obligation to support his wife during marriage. If the husband’s “means” are sufficient, he must pay alimony pendente lite in an amount sufficient to maintain the wife in a style comparable to that which she enjoyed before the separation. Since permanent alimony and alimony pendente lite are quite different, a lower award of alimony after divorce need not be supported by proof of a change in the circumstances of the parties. Vernier v. Vanier, 344 So.2d 1077 (La.App. 3rd Cir.1977); Wasson v. Wasson, 402 So.2d 718 (La.App. 1st Cir.1981).

Alimony after divorce is only due if the spouse seeking it proves that he or she is without fault and in necessitous circumstances. Frederic v. Frederic, 302 So.2d 903 (La. 1974). The spouse who demonstrates a need for permanent alimony is only entitled to an amount sufficient to provide for his or her maintenance. Ward v. Ward, 339 So.2d 839 (La.1976). Those items which are encompassed by the term “maintenance” are: food, shelter, clothing, reasonable and necessary transportation or automobile expenses, medical and drug expenses, utilities, household expenses and the income tax liability caused by alimony. Loyacano v. Loyacano, 358 So.2d 304 (La. 1978), vacated on other grounds, 440 U.S. 952, 99 S.Ct. 1488, 59 L.Ed.2d 766 (1979), affirmed on remand, 375 So.2d 1314 (La. 1979). The amount of alimony fixed by the trial court should not be modified unless the record reveals that it abused the sound discretion with which it is vested under La.C.C. Art. 160. Oddo v. Oddo, 416 So.2d 241 (La.App. 1st Cir.1982).

Both parties in this matter submitted to the trial court financial statements outlining their respective income and expenses on a monthly basis. Mr. Buxton, who is employed as a police officer by the Lake Charles Police Department, claimed that he earned a gross monthly salary of $1,263.00 of which he netted $1068.00. Mrs-. Buxton, who is unemployed, indicated a monthly income of $392.00, the source being unemployment benefits. She claimed to have $822.00 in total expenses per month.

Mrs. Buxton testified that her unemployment benefits were about to run out. She expressed a desire to find employment and indicated that she had attempted to do so but had been unsuccessful. Mrs. Buxton had been gainfully employed before the separation.

In addition to the alimony award, Mr. Buxton was ordered to pay $100.00 a month in child support for the two minor children who reside with their mother, and is also responsible for their medical, dental and pharmaceutical expenses.

The trial judge acknowledged the fact that Mrs. Buxton's unemployment benefits would probably soon run out. However, the trial judge expressed the belief that Mrs. Buxton needed to get herself a job. As mentioned previously, Mrs. Bux-ton had been employed before the separation and evidently, the trial judge believed that she should be able to find work. Considering Mr. Buxton’s income and expenses, as well as Mrs. Buxton’s apparent ability to seek employment, it cannot be said that the trial judge abused the considerable discretion afforded him in granting Mrs. Buxton a lower sum as permanent alimony than she was receiving as alimony pendente lite. Finding no clear abuse of discretion, we decline to disturb the trial court’s award of permanent alimony.

MOTION FOR A DIRECTED VERDICT

Mrs. Buxton argues that the trial court erred in granting her husband’s motion for a directed verdict thereby dismissing her claim that the August 11, 1982 judgment be made executory and that the defendant, Mr. Buxton, be found in contempt. The trial court granted the defendant’s motion upon a finding that the judgment of separation rendered on August 24, 1982 did not provide for the defendant to make payment of the FHA house notes, although the order signed by the trial judge on August 13, 1982 did so provide. The trial judge concluded that the judgment of separation su-perceded the interlocutory judgment of August 11, 1982. Consequently, the trial judge reasoned that Mr. Buxton was not obligated by the judgment of separation to pay the house notes.

In Smith v. White, 398 So.2d 178 (La. App. 3rd Cir.1981), this court addressed the issue of whether a final judgment rendered by a trial court which was inconsistent with a previous judgment on an interlocutory matter superceded the interlocutory order. The court held that the final judgment did supercede the interlocutory judgment.

Applying the Smith rationale to the instant case, we conclude that the judgment rendered by the trial court on August 24, 1982 superceded the previous order rendered on August 11, 1982, which mandated that Mr. Buxton pay the house note.

It should be noted that the judgment of August 24th did provide that Mrs. Buxton was to have the occupancy of the family home rent-free. The rent-free provision had also been included in the initial order of August 11th. Perhaps one might conclude that the implication of this language was to obligate the husband to pay the house note since the wife was to live there rent-free and that the failure to include appropriate language to that effect was an inadvertent omission. Appellant makes this argument in brief. However, the record does not support this conclusion. The trial judge rendered both the interlocutory judgment and the judgment of separation. There is no doubt that he considered this matter. Consequently, we do not find that the omission of the provision in question was inadvertent. Hence, the trial judge was correct in granting defendant’s motion for a directed verdict.

For the above and foregoing reasons, the judgment appealed from is affirmed at appellant’s cost.

AFFIRMED.


author: DOMENGEAUX, Judge.

text:
    Olivera CLARK, Plaintiff-Appellant, v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al., Defendants-Appellees.
    No. 83-956.
    Court of Appeal of Louisiana, Third Circuit.
    Nov. 7, 1984.
    Writ Denied Jan. 7,1985.
    Fruge & Vidrine, Jack C. Fruge, Sr., Ville Platte, for plaintiff-appellant.
    Gerald J. Fontenot, Mamou, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and LABORDE, JJ.
   DOMENGEAUX, Judge.

Plaintiff, Olivera Clark, brings suit against defendant, Ray N. Stagg and his insurer, Southern Farm Bureau Casualty Insurance Company, for damages sustained by her minor son, Robert Clark, in an intersectional collision between a truck and bicycle in the City of Ville Platte. The trial court dismissed the plaintiff’s suit and held in favor of the defendant. From that judgment plaintiff has perfected this appeal.

The accident occurred on October 19, 1980, as fifteen year old Robert Clark, thirteen year old Eddie Frank, and eleven year old Eric Doucet were riding their bicycles in an easterly direction on West DeSoto Street. At this time Ray N. Stagg was driving in a northerly direction on Laran Street which intersects with West DeSoto Street. There is a stop sign for traffic on West DeSoto Street compelling all traffic to stop at the intersection on West DeSoto Street and Laran Street.

Robert did not observe the stop sign and stop, but rather proceeded straight through the intersection. There is conflicting evidence as to whether the two other bicyclists crossed the intersection ahead of Robert or whether they had stopped at the intersection. Before he had completed the crossing, Robert was struck by the Stagg pickup truck.

As a result of this accident, Robert sustained a fracture of his leg below the knee. He was taken to the Savoy Memorial Hospital in Mamou, Louisiana, and was treated by Dr. Ramson Vidrine, and Dr. Lionel Mayer, an orthopedist from Opelousas. Since the leg was fractured, a closed reduction of the right leg was performed, and a cast applied. After several changes the cast was removed on February 17, 1981, and Robert was discharged by Doctor Vid-rine on April 8, 1981.

The trial judge rendered written reasons setting forth in detail his factual findings and his conclusions thereto. Close scrutiny of the trial record reveals that the trial judge’s conclusions are not only free of manifest error but also fully supported by the evidence adduced. For these reasons we adopt the well considered opinion of the trial court which reads in part as follows:

“The issues in this case are:

1. Was defendant, Ray Stagg, guilty of negligence, and that such negligence was the proximate cause of the accident in question?
2. Was Robert Clark guilty of contributory negligence proximately causing the accident? If Robert was negligent, does the doctrine of last clear chance apply in this case?
3. If both Robert and Ray Stagg were guilty of negligence, what are the relative degrees or percentages of negligence attributable to each party?
4. If plaintiff is successful, what damages would Robert and Olivera Clark suffer?
The Court believes that the defendant, Ray Stagg, was free of negligence. This accident occurred at a normal intersection where there was nothing to alert the defendant of any children playing, such as a city park, recreational center, crowded apartment house, or any other circumstances that would give the defendant any reason to use caution for such children. Also, a child of 15 years of age is old enough where a driver would not be alerted of him not observing a stop sign, as he would have been if the bicycle rider would be a child of tender years. For example, Robert was old enough to secure an automobile driver’s license if otherwise qualified. The Court further believes that Eric Doucet and Eddie Frank were stopped at the intersection as Stagg was approaching West DeSoto Street which traverses Laran Street. Stagg, the defendant, had a right to believe that Robert would also stop for the intersection. The defendant testified that he did not see the bicyclist, Robert, in time to stop his vehicle and the Court believes such testimony. The Court also believes Robert proceeded through the intersection without seeing the Stagg vehicle approaching from his right, which, of course, would be a further act of negligence on Robert’s part as he as a driver must yield to any traffic proceeding to his right. If Stagg could have seen Robert, surely Robert could have seen Stagg. It is also noted that Robert was in a far better position to avoid the accident, since it is much easier to stop a bicycle in time to avoid an accident than it is for a vehicle to stop to avoid an accident. In other words, the Court is of the opinion that Stagg did nothing wrong in proceeding On a favored street, and had a right to assume that a driver would stop and observe the stop sign at the intersection.
The Court is of the opinion that Robert Clark was in fact negligent, and that such negligence was the sole and proximate cause of the accident. The Court is further of the opinion that the doctrine of last clear chance does not apply in this case, since the plaintiff must show that he was in a position of peril from which he was unaware or from which he was unable to extricate himself. In this case, he was more able to extricate himself from the danger than Mr. Stagg as he could have stopped his bicycle easier than Stagg could have stopped his pickup truck. Secondly, the defendant was not in a position to discover plaintiff’s peril with the exercise of reasonable care and observation as the Court feels he did use reasonable care, caution and observation because he had a right to assume that Robert would have stopped at the intersection like the other youngsters, and of course, thirdly, the plaintiff did have a reasonable opportunity to avoid the accident when he discovered his peril. The situation was simply too late to avoid the accident. In addition, Robert had more of an opportunity to avoid the accident because of the type of vehicle he was operating. The Court therefore feels that the doctrine of last clear chance does not apply in this case.
For the reasons stated above, the Court must reject the plaintiffs’ demands and dismiss their suit. Plaintiffs are cast for all costs of these proceedings.”

The above opinion reveals that the trial court did not err in its findings. Since such findings will not be disturbed absent manifest error, the trial court’s decision will be affirmed. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

For the reasons assigned the judgment appealed from is affirmed. All costs of this appeal are assessed against appellant.

AFFIRMED.