author: PRICE, Judge.

text:
    STATE of Louisiana, Appellee, v. Vincent J. BOOTH, Appellant.
    No. 15861-KA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Rehearing Denied May 2, 1984.

      Kidd, Jones & Kidd by Jerry L. Jones, Monroe, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Johnny Parkerson, Dist. Atty., Joseph T. Mickel, Asst. Dist. Atty., Monroe, for appellee.
    Before PRICE and MARVIN, JJ., and ENOS C. McCLENDON, J. Pro Tem. JJ.
   PRICE, Judge.

The defendant, Vincent J. Booth, has appealed his conviction for Distribution of a Controlled Dangerous Substance, La.R.S. 40:966. We find no merit to the numerous assignments of error and affirm the conviction for the reasons assigned herein.

The charge against defendant followed a purchase made by an undercover police officer, James Kees, at defendant’s dormitory room on the Northeast Louisiana University Campus on the evening of November 15, 1982. Officer Kees was accompanied by a confidential informant who was acquainted with defendant. The confidential informant informed defendant that Kees desired to purchase some marijuana. Defendant told Kees he had a one-half ounce sack which could be purchased for fifty-five dollars. Kees paid this amount and received the bag of marijuana from defendant. Subsequently, defendant was charged on December 15, 1982, by a bill of information with Distribution of a Controlled Dangerous Substance.

After defendant’s arrest, defense counsel filed pre-trial discovery motions pursuant to La.C.Cr.P. Art. 716. In the response to the motions the district attorney stated that defendant had made spontaneous oral statements to an undercover police officer on November 15, 1982. The first statement was stated to have been made at the Bleachers Lounge in Monroe at around 9:00 p.m. and the second at defendant’s dormitory room at around 9:25 p.m.

Immediately prior to the commencement of the trial on April 4,1983, the state orally moved to amend its previous answer to discovery to delete reference to the oral statement allegedly made by the defendant to the undercover police officer at 9:00 p.m. on November 15, 1982, at the Bleacher’s Lounge. Defense counsel objected pursuant to La.C.Cr.P. Art. 729.5. Defense counsel argued that the deletion eliminated his defense of misidentification on the part of Officer Kees. Defense counsel contended that he was forced to change his defense to entrapment. He further contended that he did not prepare for the defense of entrapment because he relied on what appeared to be a misidentification on the part of Officer Kees in the state’s discovery answer. The trial court found the defendant was not prejudiced by allowing the amendment to the state’s discovery response and continued with the trial after overruling the defendant’s objection.

On this appeal defendant has made the following assignments of error:

(1) The trial court erred when it ruled that the state of Louisiana could amend its answer to discovery subsequent to jury selection in 10 to 15 minutes prior to the start of the trial on the merits.
(2) The trial court erred when it ruled that the defense was not entitled to a continuance or a mistrial as requested by defense counsel after it allowed the state to amend its answer to discovery.
(3) The trial court erred when it ruled that the defendant suffered no prejudice from the state’s untruthful answer to defendant’s motion for discovery, notwithstanding the fact that defense counsel testified as to the detrimental reliance as it related to the identification of the defendant, on such answers.
(4) The defense counsel was rendered ineffective by the state’s untruthful answer to discovery in that the viable defense of entrapment was virtually abandoned by the defense in favor of the defense of identification, all as a result of the aforementioned untruthful answer.
(5) The trial court erred when it curtailed cross-examination of the state’s key witness, James Kees, on the subject of his knowledge of Kevin Newell, the alleged reliable confidential informant, involved in the drug transaction which forms the basis of the instant prosecution.
(6) The state of Louisiana failed to meet its burden of proof when it failed to rebut specific allegations of misconduct and entrapment raised by the defense.
(7) The trial court erred when it failed to give requested jury charges submitted on behalf of the defendant.

ASSIGNMENTS OF ERROR 1, 2, 3, and 4:

The Louisiana Supreme Court has consistently held that where the defendant has been lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Ray, 423 So.2d 1116 (La.1982); State v. Strickland, 398 So.2d 1062 (La.1981); State v. Hatter, 350 So.2d 149 (La.1977). However, the failure of the state to comply with discovery procedure will not automatically require reversal. Rather, this court must review the record for a determination of whether any prejudice which may have resulted from the non-compliance caused the trier of fact to reach the wrong conclusion. State v. Ray, supra; State v. Mitchell, 412 So.2d 1042 (La.1982); State v. Davis, 399 So.2d 1168 (La.1981).

La.C.Cr.P. Art. 729.3 imposes a continuing duty upon a party prior to or during trial to promptly notify the other party and the court of the discovery of additional evidence previously requested by the other party and subject to discovery or inspection under the court order. State v. Vaccaro, 411 So.2d 415 (La.1982). Counsel for the state indicated to the court that the discrepancy in the discovery answer had just been made known to himself prior to trial. Therefore, it appears that the state complied with its continuing duty to disclose under La.C.Cr.P. Art. 729.3.

The real issue in this assignment of error is what prejudice, if any, the discrepancy in the discovery answer caused. Defense counsel contended that the amendment precluded him from using his planned defense of misidentification. In reality it did not prevent defendant from using the defense, it just made that particular defense unnecessary.

Defense counsel next contends that the discovery amendment prejudiced him because it forced him to change his defense to entrapment. Further, defense counsel contends that the discrepancy lulled him into a misapprehension of the state’s case. As previously stated, where the defendant has been lulled into a misapprehension of the strength of the state’s case by the failure to fully disclose, such a prejudice may constitute reversible error. State v. Strickland, supra; State v. Hatter, supra; State v. Boothe, 310 So.2d 826 (La.1975).

The record does not indicate that the erroneous answer regarding an oral statement made by defendant at the Bleacher Lounge on the night of the subject transaction was made with any intent to mislead defendant. The prosecuting attorney explained to the court that he had misinterpreted the police report in preparing the discovery answer and did not learn of the error until just before trial began, when it was called to his attention by the officer who was present to testify. The officer had actually made the contact at the Bleachers Lounge with defendant’s brother who referred him to defendant.

It is difficult to see how defendant’s counsel could have relied on this apparent mistake as a sufficient defense to render it unnecessary to prepare to defend against the state’s evidence of a direct sale made by defendant to the undercover agent on this same night. Under the circumstances, counsel for defendant could not have been lulled into a misapprehension of the state’s case. There is no merit to these assignments of error.

ASSIGNMENT NO. 5:

The defendant asserts that he was denied his constitutional right to confront and cross-examine on the basis that the trial court sustained a state’s objection to a question by defense counsel directed at Officer James Kees of the Metro Narcotics Unit. Defense counsel asked Officer Kees if his confidential informant’s name was Kevin Newell. The state argued that the testimony was objectionable in that there was no showing that the confidential informant directly participated in the crime. The trial court sustained the state’s objection.

The Sixth Amendment to the U.S. Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. This right is secured for defendants in state as well as federal criminal proceedings through the Fourteenth Amendment to the U.S. Constitution. Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The Confrontation Clause of the Louisiana Constitution directly affords each accused the right to confront and cross-examine the witnesses against him. La. Const.1974, Art. 1, § 16.

In State v. Vaughn, 448 So.2d 1260 (La.1983) the Louisiana Supreme Court found that confrontation means more than being allowed to physically confront the witnesses. More specifically, the court stated that our state constitution expressly guarantees a defendant the right to cross-examine adverse witnesses. The U.S. Supreme Court eases construing the Confrontation Clause held that a primary interest secured by it is the right of cross-examination. Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 1110, 39 L.Ed.2d 347 (1974).

The privilege of withholding the identity of an informer who supplies information to law enforcement officers concerning crime is founded on public policy and seeks to advance the public interests and effective law enforcement. Roviaro v. U.S., 353 U.S. 53, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957); State v. Weems, 358 So.2d 285 (La.1978). The Louisiana Supreme Court has consistently held that a confidential informant’s identity will be revealed only in exceptional circumstances, and that the defense must demonstrate these exceptional circumstances. State v. Weems, supra; State v. Williams, 347 So.2d 184 (La.1977); State v. De la Beckwith, 344 So.2d 360 (La.1977); State v. Robinson, 342 So.2d 183 (La.1977); State v. Russell, 334 So.2d 398 (La.1976). The general rule is that the burden is upon the defendant to demonstrate exceptional circumstances and much discretion is vested in the trial judge on the question of whether the circumstances warrant disclosure. State v. Weems, supra; State v. Robinson, supra; State v. Russell, supra.

The defendant argues that when the defense of entrapment was advanced, the defendant had an absolute right to cross-examine his accuser. In State v. Dick, 362 So.2d 547 (La.1978), the Louisiana Supreme Court found that the confidential informant’s privilege granted to the government is not absolute, but rather is limited by its underlying purpose. Thus, the court found that once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable. The court noted that the record in Dick clearly established that the identity of the informer was known to defense counsel and the fact had been disclosed to him by the informer himself. Hence, the state’s privilege in withholding from disclosure the identity of the informer ceased to exist.

In State v. Bonanno, 373 So.2d 1284 (La.1979), defense counsel sought to cross-examine an agent of the Drug Enforcement Agency concerning the identity of an informant. The trial court allowed the agent to assert the informant’s privilege. In support of their position, the defendants relied on the case of State v. Dick, supra, and argued that the privilege was not applicable once the identity of the informant is known as it was in Bonanno. The court in Bonanno found that technically, the defense was correct, but the curtailment of cross-examination of the agent did not prejudice the defendants. Specifically, the court noted that defense counsel was allowed to explore the character of the informant and the relationship between the informant and the DEA. He was also allowed to cross-examine the agent concerning a $1,000 reward paid to the confidential informant for his information.

The record in the present case indicates that defense counsel was allowed to cross-examine Officer Kees about the informant’s possible participation in the crime including where the confidential informant stood, what he touched, what he said, and what the officer had told the confidential informant prior to the offense. Defense counsel also cross-examined Sgt. Don McClanahan as to whether he knew Kevin Newell. Defense counsel extensively cross-examined Officer McClanahan concerning the use of confidential informants in narcotics investigations.

The ruling of the trial judge as to the scope and extent of cross-examination should not be disturbed in the absence of an abuse of discretion. State v. Coleman, 406 So.2d 563 (La.1981); State v. Eaker, 380 So.2d 19 (La.1980). While La.R.S. 15:280 provides that a witness may be cross-examined upon the whole case, La. R.S. 15:275 vests the trial judge with the sound discretion to stop the prolonged, unnecessary and irrelevant examination of a witness, whether such examination be direct or cross, and even though no objection be urged by counsel.

We find that the state did have a right to assert the confidential informant’s privilege. If defense counsel actually knew who the confidential informant was, he could have subpoenaed the witness for trial. However, it appears that defense counsel failed to do so. Further, defense counsel was allowed to cross-examine the witnesses concerning all aspects of the crime except the confidential informant’s name. Therefore the name of the confidential informant was irrelevant. Additionally, there has been no showing of abuse of discretion by the trial judge in limiting the scope of examination. There is no merit to this assignment of error.

ASSIGNMENTS OF ERROR NOs. 6 and 7:

The defendant contends that the trial judge erred in refusing to give special jury instructions requested by him concerning entrapment.

A defendant has the right before argument to submit to the court special written charges for the jury. A requested special charge need not be given if it is included in the general charge. La.C.Cr.P. Art. 807; State v. Feeback, 414 So.2d 1229 (La.1982); State v. Artis, 391 So.2d 847 (La.1980). Article 807 provides:

The state and the defendant shall have the right before argument to submit to the court special written charges for the jury. Such charges may be received by the court in its discretion after argument has begun. The party submitting the charges shall furnish a copy of the charges to the other party when the charges are submitted to the court.
A requested special charge shall be given by the court if it does not require qualification, limitation, or explanation, and if it is wholly correct and pertinent. It need not be given if it is included in the general charge or in another special charge to be given.

In the instant case, the defendant did not designate that portion of the record concerning the jury charges which were given by the court. In its brief the state quotes that portion of the record not designated by the defendant which the state asserts is the jury instructions given by the trial court on entrapment. Defense counsel argues in his supplemental brief that the state may not argue the adequacy of the jury instructions given by the trial court when defense counsel did not designate that portion of the record. Therefore, it is apparently clear that defense counsel purposefully excluded a portion of the record which is critical for this court’s review.

La.C.Cr.P. Art. 914.1 states that the party making the motion for appeal shall request that portion of the proceedings necessary for a review in light of the assignments of error to be urged. La.C.Cr.P. Art. 914.1 states as follows, in pertinent part:

A. The party making the motion for appeal shall, at the time the motion is made, request the transcript of that portion of the proceedings necessary, in light of the assignment of errors to be urged. Not later than five days after the motion, the opposing party may designate in writing the transcript of that portion or portions of the proceedings necessary to oppose the appeal.

In State v. Augustine, 215 So.2d 634 (La.1968), the Supreme Court held that only that which is in the record may be reviewed, and it is the obligation of the appellant to bring his appeal property before the court. In State v. LeBlanc, 367 So.2d 335 (La.1979), the Supreme Court found that the failure to make contemporaneous objections and to designate parts of the record for appellate review may procedurally bar the right of judicial review. In the present case, the minutes reflect that the defendant did make a contemporaneous objection, but the defendant failed to designate that portion of the record necessary for review. In State v. Oubichon, 422 So.2d 1140 (La.1982), the Supreme Court held again that only that which is in the record may be reviewed by the court, citing State v. Augustine, supra.

Art. 1, § 19 of the Louisiana Constitution of 1974, grants the right of judicial review based upon a complete record whenever a person is subject to imprisonment for forfeiture of rights of property. State v. LeBlanc, supra. The Supreme Court in LeBlanc found that Art. 1, § 19 of the constitution does not require that the record be transcribed in all cases, but a record must be available to one who might choose to take advantage of his right of review. The court in LeBlanc concluded that if the defendant makes a knowing and intelligent waiver of the right, the record need not be transcribed.

A review of the defendant’s designation of record and his argument contained in his supplemental brief demonstrates a knowing and intelligent waiver of a designation of that portion of the record containing the trial court’s jury instructions.

It has been previously established that in order for this court to determine whether the trial court erroneously denied the defendant’s request for special jury instructions under C.Cr.P. Art. 807, that this court must have the jury instructions which were actually presented. La.C.Cr.P. Art. 807 specifically states that a requested special charge may not be given if it is included in the general charge. Therefore, without a record of the general charge, this assignment of error has not been perfected for review by the defendant.

For the foregoing reasons, the conviction and sentence are affirmed.

AFFIRMED.


source: Caselaw Access Project

author: NORRIS, Judge.

license: Public Domain

text:
    FIRST NATIONAL BANK OF RUSTON, Plaintiff-Appellee, v. Robert L. MERCER, et al., Defendant-Appellant.
    No. 16,099-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.

      Boles & Mounger by Charles H. Ryan, Monroe, for defendant-appellant.
    Barham, Adkins & Tatum by Charles C. Barham, Ruston, Hudson, Potts & Bernstein by B. Roy Liuzza, Monroe, for plaintiff-appellee.
    Before MARVIN, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Robert L. Mercer appeals a judgment declaring purported sales of property in Lincoln Parish, Louisiana, to be null and void. For the reasons hereinafter assigned, we affirm.

FACTS

In December, 1974, the First National Bank of Ruston, Louisiana acquired certain immovable property located on West California Avenue in Ruston via a foreclosure proceeding. Sam Thomas, Jr., president of the Bank at the time, initiated plans to sell the property. According to the testimony of Thomas at trial, Thomas contacted Mercer, a business acquaintance with whom Thomas had had previous dealings, about purchasing the property. Thomas testified that Mercer did not want to purchase the property directly because it was an eating establishment located in the immediate vicinity of a restaurant belonging to the parents of his wife. Furthermore, Mercer was already indebted to the Bank for the maximum loan amount permitted by the Bank’s supervising agency. Therefore, according to Thomas, Mercer procured Thomas W. Craig, his employee of many years, to take title to the property for Mercer’s benefit.

Conversely, Mercer claimed that Thomas wanted the property for himself and requested that Mercer purchase the property in Mercer’s name for Thomas’ benefit. When Mercer indicated he could not, Thomas asked if there was someone in Mercer’s organization who could accomplish this purpose, and Craig was selected. Although at trial Mercer disclaimed any arrangement wherein he would personally benefit from the contemplated purchase, by earlier deposition, he testified that he understood that subsequent to the contemplated purchase and when the existing lease on the property terminated, he would be given the opportunity to participate in the operation of the restaurant.

On the other hand, Craig testified that Mercer wanted him to meet with Thomas and admitted having such a meeting in the presence of Mercer. Craig finally stated that the result of that meeting was purportedly a decision to have the property transferred into his name for the benefit of Thomas although in an earlier deposition Craig stated that he was to hold the property in his name for the benefit of both Mercer and Thomas.

Mercer then arranged a meeting between himself, Thomas and Craig to discuss the transfer. As can be seen from the sample of the testimony adduced at trial and set forth above, the testimony concerning the terms of the purported transfer to Craig is conflicting to say the least and sometimes incredible — as will be shown hereafter.

The testimony of Sam Thomas was the most forthright and nonevasive. He testified that Mercer agreed to purchase the property from the Bank for $100,000 and that it was to be placed in the name of Craig for Mercer’s benefit. The purchase price was to be loaned by the Bank to Craig and secured by a mortgage in favor of the Bank executed by Craig affecting the property. Thomas had renegotiated the terms of a lease with the present tenant of the property which was to be signed by the Bank and Craig and the monthly rentals from that lease were to be paid to the Bank and applied to the loan payment. According to Thomas, Mercer authorized the Bank (orally at least) to deduct from his bank account the difference between the monthly rental and the loan payment. Thomas also testified Mercer verbally agreed to guarantee Craig’s loan.

At best, Mercer’s version of the discussion surrounding the transaction is vague. At worst, it is incredible for a man with Mercer’s education and business experience. While admitting he took Craig to meet with Thomas and remained during the entire meeting, he stated that Thomas explained the “deal” to Craig but did not think that a purchase price was discussed or ever “settled on”. At trial, Mercer first admitted he allowed the debiting of his account for the balance of the note payment. However, he later denied knowledge of the debits until he belatedly discovered them, also characterized them as allowed under economic duress, and finally testified that the debits were actually a loan to Thomas. This is all in spite of his earlier deposition testimony to the effect that Craig was to purchase the property for $85,000, that Mercer was aware there was to be a lease on the property, and that Mercer authorized a debit from his bank account to supplement the rentals to meet the payment on the property. Obviously, at his earlier deposition, Mercer’s recollection was much clearer than it was at the trial.

An even more fascinating version of the details of the transaction is recalled by Craig. At trial, Craig testified that Thomas offered to “transfer” a piece of property into his name until a later date without any discussion of the details or mechanics of the transaction. According to Craig, not only was no price, debt or note discussed, but also he was not to be obligated in any manner, much less sign a note for any purchase price amount. This is all despite the fact that by earlier deposition he had testified that the purchase price was to be $85,000 to be represented by his note; and in answers to interrogatories and admissions, he had admitted that he was to receive a loan from the bank.

After the meeting in Thomas’ office, Mercer and Craig went to James Hall’s office to complete the transaction. Authority to sell the property to Craig had been granted by the Bank’s board of directors at the December 10, 1974 meeting. Hall was given a cash deed transferring the property from the Bank to Craig for $100,000 cash, the receipt of which was acknowledged; a collateral mortgage and note for $125,000; and a hand note for $100,000; and perhaps a collateral pledge agreement in order to close the contemplated transaction. Again, the testimony regarding the attempted “closing” of the purported sale strains the imagination.

Although Craig testified that no purchase price was agreed on, that he didn’t agree to pay anything and that he didn’t buy anything, he freely admitted signing the collateral mortgage and note although he testified he really didn’t notice them. However, he admitted that he balked at signing the $100,000 hand note because there was a discrepancy between the amount of $85,000 and $100,000 which Mercer, at his side and reviewing the papers, called to his attention. Craig testified that at this point “we stopped right there” until the matter could be discussed with Thomas. However, Thomas had left the Bank. Thereafter, Mercer and Craig left and at trial Craig testified he received the keys to the property and went and signed a new lease on the premises that Thomas had negotiated. However, in his previous deposition, Craig testified that after Mercer called the discrepancy to his attention he did not sign any more papers, left the Bank, went back to Natchitoches, and never bought the property because he did not finish the transaction. In that deposition he testified he knew nothing about a lease on the premises.

At trial, Mercer finally admitted he told Craig at some point he did not think the documents represented what Craig was to sign because Craig was not to sign any note since he was not paying for the property. However, in his prior deposition, Mercer testified he looked at the documents to be signed and noted that the figures had changed from $85,000 to $100,-000.

James Hall did not remember any details of the transaction other than the fact it took place.

All the documents that evidence the transaction, i.e., the deed, collateral mortgage and note, hand note for $100,000 and collateral pledge agreement are dated December 31, 1974, and the deed and collateral mortgage were recorded by the Bank in the conveyance and mortgage records of Lincoln Parish, Louisiana, on January 2, 1975. The Bank also instituted the necessary book entries to show a loan by it to Craig for $100,000 based on the transaction.

Thomas terminated his association with the Bank in August of 1976, and the monthly payments on the debt were paid by the rentals and debits to Mercer’s account until August of 1977. When the loan became in default Craig and Mercer were notified. Craig went to the Bank, talked to Hall and obtained copies of the papers he had signed and discovered that a signed hand note and collateral pledge agreement had been executed and that the signatures on these instruments were not his. He so informed Hall. A report of a hand writing expert was filed into evidence by stipulation which states that the hand note and collateral pledge were not signed by Craig. There is no evidence in the record as to who signed Craig’s name to these documents that came to be in the Bank’s possession other than Thomas’ statement that his vague recollection was that he thought Mercer brought the notes back in. There is no evidence to indicate that anyone connected with the Bank signed or authorized Craig’s signature on these instruments.

Hall testified that after the Bank considered the loan in default he contacted Mercer who at one point agreed to pay $20,000 and reschedule the loan but did not. Hall testified Craig informed him there was nothing that he could do about the matter.

After the foreclosure suit was filed Craig contacted Mercer who directed him to an attorney and went with him on several occasions to the attorney’s office. In connection with the foreclosure suit, a notice of lis pendens was filed. The depositions of Mercer and Craig were taken on April 10, 1978. By this time all knew that a signed hand note and collateral pledge in possession of the Bank had not been signed by Craig.

Craig admitted that he never went on or exercised any incidents of ownership to the property in question until sometime in 1978 after the foreclosure suit was filed and he became aware that there was a deed of record in his name.

Subsequent to all the above events — the filing of the foreclosure suit, and the taking of the depositions — by deed dated April 13, 1977, Craig and his wife transferred to Mercer the subject property for a consideration of $100,000 represented by a note payable one year after date which was described as an in rem obligation only and which could not be personally enforced against Mercer. Mercer did not assume nor did the deed refer to the Bank’s recorded collateral mortgage.

The Bank initially filed the foreclosure suit against Craig who reconvened and filed third party demands against Thomas and James Hall. Thomas and Hall reconvened and filed third party demands against Mercer. After the execution of the deed from Craig to Mercer, the Bank added Mercer as a defendant in the foreclosure suit and filed a second suit against Mercer and Craig seeking to rescind the purported sale for nonpayment of the purchase price, or alternatively to have it and a subsequent purported sale of the same property from Craig to Mercer declared null and void for failure of consideration, as a simulation, and because of error and fraud. Both suits were consolidated for trial.

ACTION OP THE TRIAL COURT

In written reasons, the trial court found that Thomas and Mercer had agreed that Mercer would acquire the property from the Bank and that the Bank would make a loan sufficient to cover the purchase price. Because Mercer’s indebtedness to the Bank had reached the maximum, Mercer would have Craig take title to the property in order to circumvent the banking regulation which would preclude the Bank’s loaning more money to Mercer. The trial court further found that at the closing and after the collateral mortgage and note had been signed, Mercer discovered the hand note was for $100,000 rather than $85,000 and instructed Craig, his agent, not to sign any further instruments. The trial court further found that Craig paid no price for the property, that throughout the transaction Craig acted at the direction of Mercer, and that the sale and loan arrangement was in fact a single transaction.

The trial court finally concluded that the transaction of the sale arid mortgage was never completed because Mercer was under the impression the sale was for $85,000 and the testimony of Thomas, the act of sale and hand note indicated the Bank’s understanding that the sale was to be for $100,-000. Thus, the trial court concluded that neither Craig nor Mercer or the Bank consented to the sale or loan because the purchase price was never agreed upon. Therefore, the trial court declared the act of sale and collateral mortgage to be null and void for lack of consent as to the purchase price.

■ The lower court further concluded that Mercer was not a third party to the transaction entitled to rely on the public records, i.e., the cash deed that stated the Bank had sold the property to Craig for $100,000 and that the price had been paid. The court then declared that Mercer acquired no title to the property by virtue of the deed from Craig since Craig had no title to convey. Thus, the act of sale from Craig to Mercer was also declared to be null and of no effect.

Finally, the trial court allowed the Bank to retain the rentals paid under the lease because the Bank was ultimately found to have retained the ownership of the property but reserved to Mercer the right to seek reimbursement for any amounts paid by Mercer personally or debited from his account which were credited on the account of Craig. All reconventional and third party demands were denied.

ASSIGNMENTS OF ERROR

Mercer appeals contending that the trial court erred in:

(1) ordering the cancellation of the cash deed from First National Bank of Ruston to Thomas W. Craig, dated December 31, 1974 insofar as this deed affected the subsequently acquired rights of Mercer for the reason that the deed did not constitute a sale and that there was no meeting of the minds of the parties regarding the price and imputing that de-feet bo Mercer because he was not a “third party” to the deed transaction; and
(2)holding that since no title was transferred to Craig by the Bank that thereafter Craig could not transfer any title to Mercer under the deed of April 13, 1978 and that said deed was null and void and should be cancelled.

FIRST ASSIGNMENT OF ERROR

In this assignment of error, appellant contends that the trial court erred in concluding that there was no valid sale from the Bank to Craig.

The general rule is that under La. C.C. Arts. 2236 and 2276, an authentic act is full proof of the agreement contained in it as against the contracting parties and their heirs and assigns. The exception to this general rule which has been repeatedly recognized by the courts is that where the party to an authentic act alleges that he executed it through fraud or error, he is permitted to introduce parol testimony to support such allegations. Franton v. Rusca, 187 La. 578, 175 So. 66 (1937); Unity Industrial Life Ins. Co. v. DeJoie, 202 La. 249, 11 So.2d 546 (1942); American Creosote Co. v. Springer, 257 La. 116, 241 So.2d 510 (1970); Paciera v. Benitz, 284 So.2d 827 (La.App. 4th Cir.1973).

The sale of immovable property executed in the form of an authentic act, which recites that the seller acknowledges receipt of the payment of the consideration therein stipulated, cannot be attacked by a party thereto on the ground that the consideration was not paid, unless the attacking party alleges fraud, mutual error or force, or unless the lack of consideration is indicated by answers to interrogatories or requests for admission to fact. Durham v. Evans, 377 So.2d 423 (La.App.2d Cir.1979); Cordova v. Cordova, 382 So.2d 1050 (La. App.2d Cir.1980).

In this case, parol testimony was freely admitted without objection to explain the dealings and intentions of the parties. While conflicting in many respects, the testimony is clear that the Bank intended to sell this property to Craig for the consideration of $100,000. Regardless of which version of Craig’s and Mercer’s testimony is believed, it is also clear that no meeting of the minds occurred as to the consideration or purchase price. It was either believed by Craig and Mercer to be $85,000 or there never was an agreed upon purchase price. Whatever the intent of Craig and/or Mercer, the trial court was certainly not clearly wrong in its finding that there was no agreed upon price or consent to the sale at an agreed price. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). Therefore, as between the Bank and Craig, there was no contract of sale that can be given legal effect. La.C.C. 2439; Catyb v. DeVille, 246 So.2d 41 (La.App.3d Cir.1971); Manuel v. Pitre, 389 So.2d 774 (La.App.3d Cir.1980); Mulina v. Tate, 393 So.2d 259 (La.App. 1st Cir.1980).

Furthermore, it is noteworthy that Craig frankly admits that he paid no consideration to the Bank. Error was alleged by the Bank and the lack of payment of any consideration by Craig is certainly indicated by his answers to interrogatories and request for admissions of fact found in the record. The more credible evidence preponderates that a sale was indeed contemplated between the parties even though a price was never agreed upon, and both parties understood that the Bank would loan Craig the funds to purchase the property to be secured by a valid mortgage on the property. The entire transaction (sale and loan) was never actually consumated because Craig, at Mercer’s instruction, refused to complete it after realizing that there was no agreement as to the purchase price.

To accept Mercer’s contention that the Bank was actually paid the consideration for the property under the facts of this case would be untenable and an unrealistic result. The facts are as the trial court found. The entire transaction was never completed and the Bank was never actually paid the purchase price. Therefore, the deed from the Bank to Craig is a null and void; thus, title never in fact passed from the Bank to Craig. See Durham v. Evans, supra; Cordova v. Cordova, supra.

SECOND ASSIGNMENT OF ERROR

Mercer next argues that despite the invalidity of the transaction between the Bank and Craig he cannot be affected thereby because he is a third party who purchased from Craig in reliance on the public records; that is, the deed from the Bank to Craig which stated a purchase price acknowledged to have been paid. In reality, it is obvious that Mercer’s real contention is that he owns the property free of all encumberances despite the fact that the Bank has never been paid.

In Louisiana, interests which are subject to the recordation law but are unrecorded are null and void as to third persons having actual knowledge of the unrecorded interest. McDuffie v. Walker, 125 La. 152, 51 So. 100 (1909). However, recordation is not the source of rights. As stated in 39 Tul.L.Rev. 491, 495:

It may be further observed, from the negative character of the law of recordation, that recordation does not purport to be and is not itself the source of rights. A recorded purchase from the legal owner transfers ownership to the purchaser, not because of the recordation, but because of the purchase. While the unrecorded purchase from the owner does not transfer ownership insofar as third persons are concerned, a recorded purchase from one not the owner does not transfer ownership at all .... [Emphasis added.]

In Gulfs South Bank and Trust Co. v. Demarest, 354 So.2d 695 (La.App. 4th Cir. 1978), purchasers/appellants purchased a home that they believed to be free of mortgages because the mortgages were shown to be cancelled on the public records by documents which were later proved to be fraudulent. The court held that the presence of the fraudulent releases in the public records only entitled the purchasers to introduce the releases into evidence, as against third parties and that the releases remained forgeries which were invalid and incapable of waiving the mortgagees’ rights or of freeing the home from the mortgages despite their having been recorded stating:

Appellants stress their freedom from fault, although they concede the mortgagees’ equal innocence. They also claimed protection of “the legal doctrine that persons in good faith buying real estate or acquiring a mortgage or lien on realty can rely on public records in determining ownership or encumberances of real property.”
This argument overstates Louisiana recordation law. It omits to address the problem of the radical invalidity of forged instruments affecting land; if a good-faith mortgagee could lose his mortgage because of fraudulent release bearing a forgery of the mortgagee’s signature as recorded than a homeowner could lose his home because of a fraudulent sale or mortgage bearing a forgery of the home-owner’s signature as recorded.
Louisiana recordation law is to the contrary; recordation does not create rights at all, much less grant validity to forgeries. [Citations omitted.] Rights of purchasers and conventional mortgagees in immovable property are created by the act of purchase or mortgage from the owner. * * * But being recorded * * * is not proof of anything, and particularly it is neither proof nor promise of the genuineness or validity of the recorded or written instrument which alone can be the source of the rights asserted. All that recordation does for an instrument, valid or fraudulent, is to permit its introduction into evidence for purposes of asserting its validity against third persons.
Therefore a third person can rely upon absence from the records (non-recordation) as guaranteeing ineffectiveness of an instrument required to be recorded. But he cannot rely upon the presence in the records (recordation) of the instrument, because the only effect of recordation is admissibility into evidence with effectiveness against third parties. [Footnotes omitted.]

In the instant case, the evidence which conclusively shows the invalidity of the sale from the Bank to Craig was parol. It was admissible under the above stated rules. Further, not only did Mercer or any other party not object to the admission of this evidence at trial but also in fact Mercer provided a great deal of that evidence. Because Louisiana’s parol evidence rule [La.C.C. Art. 2276] is evidentiary in nature and not substantive, if not invoked at trial via proper objection, the right to later object to such evidence which may or may not be admissible is waived and may not later be invoked in an attempt to exclude evidence. Wade v. Joffrion, 387 So.2d 1265 (La.App. 1st Cir.1980).

Accordingly, based on the evidence contained in this record, we conclude that the trial court did not err in nullifying the sale from Craig to Mercer for several reasons.

As discussed in connection with Assignment of Error No. 1, the evidence conclusively shows that not only was there a lack of consent to the purchase price in the original transaction between Craig and the Bank but also there was a failure of consideration because no consideration was paid to the Bank from Craig. This is not disputed, by any of the parties, including Mercer. Accordingly the judicial dissolution of this sale because of this failure of consideration provides a basis for nullifying the subsequent sale from Craig to Mercer. In Durham v. Evans, supra, this court concluded that a judgment which annulled and dissolved a sale had the effect of freeing the property from a subsequent conveyance:

Article 2045 of the Civil Code provides that the dissolving condition is that which, when accomplished, operates a revocation of the obligation, placing matters in the same state as though the obligation had not existed.
In Sliman v. McBee [311 So.2d 248 (La.1975) ], supra, our Supreme Court annulled a sale of immovable property on the grounds that the purchase price had not been paid, and in so doing it also decreed that the property was to be returned to the seller free and clear of any mortgages or other encumberances and placed thereon by the seller. In that connection the court said:
The only question that remains is whether the return of the property is to be free and clear of the mortgages given by the McBees to the bank to secure the loans made to them. The answer here is well settled. We stated in Stevenson v. Brown, 32 La.Ann. 461, 464 (1880) that ‘[a] demand in resolution is a demand for the property itself, and embraces in it the abrogation of any and all alienations and encumbrances placed upon it by the vendee.’ (Emphasis added.) The failure of the purchaser to pay the sale price causes the resolutory condition to take effect, which places matters in the same state as though the obligation had not existed, La. Civil Code, arts. 2045-47, 2561 (1870). Thus, judicial dissolution of a sale for non-payment of the price frees the property of all mortgages created by the purchaser. E.g., Adler v. Adler, 126 La. 472, 52 So. 668 (1910) and authorities cited therein.
The same court said in Adler v. Adler, supra, where a somewhat similar issue was presented: “That the judicial dissolution of a sale of real estate for nonpayment of the price frees the property from all mortgages and charges created by the purchaser, or resulting from his possession as owner and the operation of law, is too well settled for dispute.”
In Stevenson v. Brown, supra, the Supreme Court said “a demand in resolution is a demand for the property itself, and embraces in it the abrogation of any and all alienations and encumbrances placed upon it by the vendee.” * * *

That rationale is equally applicable herein and compels the same result; that is, the judicial decree which dissolved and annulled the sale from the Bank to Craig had the effect of freeing the property from the subsequent conveyance made to Mercer.

The trial court concluded that Mercer was not entitled to third party status under the rationale of King v. People’s Bank and Trust Co., 371 So.2d 257 (La.1979). In that case, it was held that a bank was not a third party entitled to the protection of the public records doctrine because it was concluded from the facts and circumstances that the attorney for the bank was a witness to the act of sale because he signed the sale as notary. As the bank’s attorney, he designed the entire loan package under their instructions and in keeping with their policy in such cases. It was concluded that his actions were in fact the actions of the bank and his knowledge should be imputed to the bank as much as would be the case if the President of the bank had signed the deed as a witness, and that as a witness to the sale, the bank, acting through its attorney, was aware that the sale was meant to be without consideration. Accordingly, the bank was not a third person in legal contemplation. See also McDaniel v. Stoval, 25 La.Ann. 495 (1873); Brown v. Sadler, 16 La.Ann. 206 (1861) cited therein.

While at first glance, King appears to be factually distinguishable rather than anala-gous, the facts of the instant case when viewed closely may even be stronger than those present in King. While admittedly Mercer was not an attorney for Craig, he was at least his partner, advisor, and/or promotor in arranging and carrying out the transaction between Craig and the Bank. Whatever knowledge was available to Craig was certainly available and known to Mercer. Mercer was the party who procured Craig to purchase the property; he was present during all of the discussions and the negotiations surrounding the transaction. Mercer knew that the purchase price was not agreed upon, knew that Craig had refused to sign further papers after this fact was brought to light and knew that Craig was of the opinion that the transaction had been cancelled until demand for payment was made upon him. Even more noteworthy is the fact that it was Mercer, rather than Craig, who discovered the discrepancy in the purchase price and insisted that Craig sign no further documents thereafter. Finally, it was Mercer who directed Craig to an attorney after the foreclosure suit was filed and the resulting notice of lis pendens was recorded. Accordingly, under the strong facts of this case, we feel it appropriate to conclude that Mercer was at least as knowledgable about this transaction as Craig, or any other party, witness, or attorney, if not more so. However, we find it unnecessary to determine whether this factual' situation is governed by La.C.C. Art. 3342 et seq. and whether La.C.C. Art. 3344 would preclude Mercer from asserting third party status.

After the foreclosure suit was filed, the depositions of Mercer and Craig were taken. Mercer was present at the deposition of Craig and heard his testimony that the purchase price was never agreed upon or paid and that he never considered himself to have purchased the property. Nevertheless, after the foreclosure suit was filed, after these depositions were taken, after much discussion between Craig and Mercer and after much discussion between Mercer and his attorneys, a deed from Craig to Mercer was executed. That instrument, dated April 13, 1978 is shrouded in suspicious circumstances and the ultimate consideration given in satisfaction of the $100,000 in rem note was proved to have been concocted between the parties thereto. Without further elaboration, suf-ficeth to say that we are convinced that any fair reading of this record will convince anyone that a prima facie case of fraud was proven by clear and convincing evidence. It is obvious that Craig and Mercer, knowing all the facts surrounding the initial transaction became aware of the Bank’s vulnerable position after which they conspired and schemed to deprive the Bank of this property without paying for it. In actuality, Mercer does not attempt to rely on the public records to protect himself but in fact attempts to use them as a cloak in furtherance of his fraudulent scheme. The rule is well established that fraud vitiates all things, notwithstanding the public records doctrine. McDuffie v. Walker, supra. See also Todt v. Todt, 237 La. 168, 110 So.2d 566 (1959); Acadian Production Corp. of La. v. Savanna Corp., 222 La. 617, 63 So.2d 141 (1953); Cuselich v. Cuselich, 159 La. 652, 106 So. 20 (1925). A party to a fraudulent transaction can never take advantage of the fraud. Bernard v. Auguste, 1 La.Ann. 69 (La.1846). The rule has always been that the public records doctrine does not protect a third party purchaser, where there has been fraud or forgery. Keller Building Products of Baton Rouge, Inc., v. Siegen Development, Inc., 312 So.2d 182 (La.App. 1st Cir.1975). Accordingly, we conclude that Mercer can find no protection for his actions by relying on the public records doctrine because we hold that a person can not use the public records doctrine to perpetrate a fraud. Compare Broussard v. Doucet, 236 La. 217, 107 So.2d 448 (1958).

For the foregoing reasons, the judgment of the trial court is affirmed in its entirety.

JUDGMENT AFFIRMED.


author: JASPER E. JONES, Judge.

text:
    Preston WILSON, Plaintiff-Appellant, v. STATE FARM INSURANCE CO., et al., Defendant-Appellee.
    No. 16148-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Tyler & Johnson by Tommy J. Johnson, Shreveport, for plaintiff-appellant.
    Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendant-appellee.
    Before JASPER E. JONES and NORRIS, JJ., and ENOS McCLENDON, J. Pro Tern.
   JASPER E. JONES, Judge.

The plaintiff, Preston Wilson, appeals a summary judgment which dismissed his suit against Trinity Universal Insurance Company of Kansas, Inc., the uninsured and underinsured insurance carrier of Lewis Thorndike.

The plaintiff was injured in an automobile accident on the parking lot of Louisiana Downs Racetrack in Bossier City on November 23, 1979. The plaintiff was a passenger in a vehicle driven by Lewis Thorndike which was struck in the rear by a vehicle driven by Polly Gilbert. The plaintiff sued in the Bossier Parish district court to recover his personal injury damages. Included among the defendants were Polly Gilbert, her liability insurer, State Farm Mutual Automobile Insurance Company and Trinity, Thorndike’s uninsured and underinsured motorist carrier. After suit was filed State Farm paid plaintiff $10,000.00 for a full release of Gilbert and State Farm. The suit against both of these defendants was dismissed with prejudice.

Lewis Thorndike, who was also made a defendant in the suit, was a resident of 2605 N. Glass St., Tyler, Texas, and the vehicle owned by him and occupied by plaintiff at the time of the accident was registered in Texas.

Trinity’s policy, which is in the record, reflects it was produced by the Preston Insurance Agency of Henderson, Texas and sent to Thorndike at 2605 N. Glass St., Tyler, Texas.

The Trinity policy which provided $10,-000.00 uninsured-underinsured coverage on the Thorndike vehicle contained the following provision:

“C. Any amount payable under the terms of this insurance because of bodily injury or property damage sustained in an occurrence by a person who is an insured shall be reduced by
(1) all sums paid on account of such bodily injury ... by or on behalf of
(1) the owner or operator of the uninsured motor vehicle and ...
(2) the amount recovered or recoverable from the insurer of an underinsured motor vehicle.”

Trinity filed a motion for summary judgment attaching to it a copy of plaintiff’s release granted to Gilbert and State Farm in consideration of the payment to plaintiff of the sum of $10,000.00.

Trinity asserted it had no liability to plaintiff under its uninsured or underin-sured coverage which was initially $10,-000.00 and which by the above quoted terms of the policy was reduced to zero when plaintiff was paid $10,000.00 by State Farm.

The trial court granted Trinity’s motion for summary judgment and in its written reasons for judgment made the following findings:

“The Court finds that Louis (sic) Thorndike, the owner of the vehicle in question, was a resident of Tyler, Texas; and that, therefore, the automobile is registered and garaged in the State of Texas.
To apply Louisiana law concerning underinsured motorists coverage in this case would undermine the laws of Texas governing insurance contracts. Since the Texas court has specifically approved dimunition (sic) clauses such as the one found in the policy at issue — see Janet height (sic) Montayne v. The American Insurance Company, 638 SW 2nd, 518 and Jacinto Infante, et at v. Texas Farmers Insurance Company, 640 SW 2nd, 321 — this court finds for mover.”

On appeal plaintiff assigns as error the trial court’s finding that “Texas law applied to the uninsured and underinsured motorist coverage of a policy of insurance issued in the State of Texas to a Texas resident involved in an accident in the State of Louisiana where a victim of the accident is also a resident and domiciliary of the State of Louisiana.”

Plaintiff contends Louisiana law applies to the interpretation of Trinity’s policy and under Louisiana law Trinity’s motion for summary judgment should have been denied.

C.C.P. Article 966 provides that a motion for summary judgment should be granted if there is no genuine issue as to material fact and mover is entitled to judgment as a matter of law.

There is no genuine issue of material fact present in this case.

. The mover was entitled to the summary judgment based upon the diminution clauses in Trinity’s policy if Texas law is applicable. Janet Leigh Montayne v. The American Insurance Company, supra, and Jacinto Infante, et al v. Texas Farmers Insurance Company, supra.

Trinity is not entitled to the summary judgment as a matter of law if Louisiana law is applicable. The Louisiana uninsured motorist statute provides an uninsured motor vehicle shall include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by a person entitled to claim uninsured coverage. La.R.S. 22:1406 D(2)(b). The diminution provision in the Trinity policy is unenforceable under Louisiana law because it eliminates the coverage mandated by the cited provision of the uninsured motorist statute. Hebert v. Green, 311 So.2d 223 (La.1975); Earl v. Commercial U. Ins. Co., 391 So.2d 934 (La.App. 2d Cir.1980).

A conflict exists between the law of Texas and the law of Louisiana in that a different result will here occur depending upon which law is applied to the undisputed facts.

The case of Jagers v. Royal Indemnity Company, 276 So.2d,309 (La.1973) adopted the “interest analysis” theory as the proper approach for resolving choice of law problems. The court found Louisiana had all the interest applicable to litigation on a Mississippi auto accident in a Louisiana court between a plaintiff domiciled in Louisiana and a defendant domiciled in Louisiana. The court then applied Louisiana tort law to the accident, where the plaintiff was the mother of the defendant. The Jagers case overruled the earlier case of Johnson v. St. Paul Mercury Insurance Company, 256 La. 289, 236 So.2d 216 (1970) which had required the application of the law of Arkansas to litigation in Louisiana between Louisiana domiciliaries where the tort occurred in Arkansas. The court had adhered to the lex loci delecti doctrine. The Jagers court cited with approval Restatement, Second, Conflict of Laws, § 6 (1969) and approved the modern conflict choice of law rule that all interest should be evaluated and balanced to determine which law to apply.

This court in the case of Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976) applied the interest analysis, citing Jagers, to find Louisiana law applicable to litigation in a Louisiana court on a Louisiana accident involving a Texas defendant, his uninsured motorist carrier, Louisiana defendants, their insurers, and Texas plaintiffs. The court construed Jagers to not only abandon the rigid application of the doctrine of lex loci delicti but also as authority to reject the rule of lex loci contrac-tus when the interest of Louisiana outweighed the interest of the state where the contract was made. The court stated that where Louisiana interest outweighed the interest of the foreign state, Louisiana law is applicable. The court reasoned that while Texas had an interest in awards to Texas citizens that Louisiana’s intérest in awards made to victims of accidents occurring on its highways involving other Louisiana residents outweighed Texas interests. The court acknowledged that Texas had an interest in the uninsured motorist policy written in Texas because of the adverse effect that the application of foreign law could have upon rates charged for this coverage. The court reasoned that Texas insurers in this mobile society were well aware that liability under their policies would not always be determined based upon Texas law. The court considered the interest Louisiana had in regulating awards for injuries sustained upon its highways and in protecting these victims from the uninsured motorist. The court concluded Louisiana interest outweighed Texas interest and applied Louisiana law to stack uninsured motorist coverage contained in Texas policies, a result not sanctioned by Texas law.

The Jagers and Sutton cases have been cited with approval and the interest analysis applied to find Louisiana law applicable in the following cases involving uninsured motorist insurance coverage in policies written in other states. Brawner v. Kaufman, 496 F.Supp. 961 (E.D.La.1980); Bell v. State Farm Fire & Cas. Co., 527 F.Supp. 300 (W.D.La.1981); Bell v. State Farm Mut. Auto. Ins. Co., 680 F.2d 435 (5th Cir.1982); Jones v. American Fire-Indem. Ins. Co., 442 So.2d 772 (La.App. 2d Cir.1983). See also Wickham v. Prudential Ins. Co. of America, 366 So.2d 951 (La.App. 1st Cir.1978) and Champion v. Panel Era Mfg. Co., 410 So.2d 1230 (La. App. 3d Cir.1982) where the interest analysis was applied in cases involving non auto insurance policies to find the foreign insur-anee contracts governed by the law of Louisiana.

The Brawner, Bell and Jones cases each involved uninsured motorist insurance policies written and delivered in other states which were construed in light of the requirements of the Louisiana uninsured motorist statute, La.R.S. 22:1406. In each ease coverage was found under this Louisiana statute that would not have existed in the state where the contract was made.

Trinity relies upon Abel v. White, 430 So.2d 202 (La.App. 4th Cir.1983) wherein the Fourth Circuit refused to apply the Jagers interest analysis to determine the choice of law to be applied to a Texas uninsured motorist contract. The Abel court construed C.C. Art. 10 to require Texas law to be applied to a Texas insurance contract by a Louisiana court to a Louisiana accident involving a Louisiana plaintiff and apparently a Louisiana under-insured motorist. The Abel court reduced the $10,000.00 underinsured coverage in the Texas policy to $5,000.00 because plaintiff recovered $5,000.00 from the tort-fea-sor’s insurer. Though the opinion does not clearly reflect the basis for the reduction Abel apparently enforced a diminution clause in the Texas policy similar to the one found in the Trinity policy.

We decline to follow Abel because we consider Jagers and Sutton and their progeny to represent sound public policy designed to permit Louisiana courts to apply Louisiana law to situations requiring a choice of law where Louisiana interest is sufficient to mandate this result.

We here find that while Texas had an interest in the Texas insurance contract issued by Trinity, this interest is outweighed by the Louisiana interest in the award to be made to a Louisiana victim of a Louisiana accident caused at least in part by a Louisiana domiciled underinsured defendant.

We, therefore, find the clause in the Texas insurance contract that has the effect of reducing the underinsured motorist coverage provided by the Trinity policy to be unenforceable because it is contrary to La.R.S. 22:1406 D(2)(b).

We REVERSE AND SET ASIDE the summary judgment and REMAND the case for further proceedings in accordance with law. Trinity is assessed with cost of this appeal.

      . La.R.S. 22:1406 D(2)(b):
      (b) For the purposes of this coverage the term uninsured motor vehicle shall, subject to the terms and conditions of such coverage, also be deemed to include an insured motor vehicle when the automobile liability insurance coverage on such vehicle is less than the amount of damages suffered by an insured and/or the passengers in the insured's vehicle at the time of an accident, as agreed to by the parties and their insurers or as determined by final adjudication.

      . Restatement, Second, Conflict of Laws, § 6 (1969):
      "(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law,
      "(2) When there is no such directive, the factors relevant to the choice of the applicable rule of law include
      "(a) the needs of the interstate and international systems,
      “(b) the relevant policies of the forum,
      "(c) the relevant policies of other interested states and the relative interests of those states in the determination of the particular issue,
      "(d) the protection of justified expectations,
      "(e) the basic policies underlying the particular field of law,
      "(f) certainty, predictability and uniformity of result, and
      "(g) ease in the determination and application of the law to be applied.”

      . Art. 10. Choice of Law:
      The form and effect of public and private written instruments are governed by the laws and usages of the places where they are passed and executed...


author: MARVIN, Judge.

text:
    Verna Lou SNIDER, as Tutrix for the Minor Children of Jerry Wayne Snider, Plaintiff-Appellee, v. KEMPER INSURANCE COMPANY, et al., Defendant-Appellant. Donna Bates SNIDER, Plaintiff-Appellee, v. Gloria M. MURRAY, Kemper Insurance Companies and State Farm Insurance, Defendants-Appellants.
    No. 16124-CA, 16125-CA.
    Court of Appeal of Louisiana, Second Circuit.
    March 26, 1984.
    Writ Granted May 11, 1984.
    Nelson & Aehee, Ltd. by Roland J. Achee, Shreveport, for Aetna Cas. & Sur.

      Lunn, Irion, Switzer, Johnson & Salley by Julie Mobley Lafargue, Shreveport, for State Farm Ins.
    Self & Burkett by Don M. Burkett and Edward Chevallier, Many, for Verna Lou Snider.
    Herman L. Lawson, Mansfield, for Donna Bates Snider.
    Before PRICE and MARVIN, JJ., and McCLENDON, J. Pro Tem.
   MARVIN, Judge.

In consolidated actions arising out of the wrongful death of Jerry Wayne Snider in 1979, Snider’s widow in one action, and his children by an earlier marriage in the other, were awarded judgment under the UM coverage provisions of two automobile liability policies, one written by State Farm for Snider, and the other written by Aetna for Snider’s father-in-law.

State Farm appeals, contending that Louisiana law should not be applied to its policy which was written in Texas when Snider was a Texas resident. Aetna appeals, contending that Snider was not “occupying,” within the meaning of its policy, his father-in-law’s vehicle when the fatal accident occurred. In each case we affirm the judgment as to State Farm and reverse as to Aetna.

On July 28, 1979, Snider, with his wife as a passenger, drove off of Highway 84 near Mansfield to look at land they were considering buying. Snider’s truck got stuck when he attempted to drive back onto the highway. The Sniders walked to the home of her father, Bates, which was nearby, to get help. Snider then rode with Bates and Bates’ son in Bates’ truck to get Snider’s truck out of the mud. A chain almost 20 feet in length was attached to the rear of Bates’ truck and to the front of Snider’s truck. Bates drove his truck and Snider drove his own truck as it was pulled out of the mud. After Snider’s truck was pulled from the mud, the trucks were parked on the shoulder of the highway. Bates removed the chain from his truck. Snider was removing the chain from his truck when his truck was struck from the rear and propelled into the Bates truck by a car driven by Murray. Snider was crushed between the trucks and suffered fatal injuries.

Plaintiffs settled their claims against Murray and her insurer and proceeded to trial in these cases.

WHAT LAW APPLIES TO STATE FARM. POLICY?

The trial court applied Louisiana law and recovery was allowed plaintiffs under the UM provisions of the State Farm policy.

The State Farm policy was issued to decedent by a Texas agent while decedent resided in Texas. About two or three months before the accident, decedent married his second wife and moved with her to Louisiana where he found work. He was working and living in Louisiana when the accident occurred. Ms. Murray resided in Louisiana, as did all plaintiffs.

State Farm’s policy provided $10,000 uninsured or underinsured motorists coverage and contained the following limiting provision:

“(c) Any amount payable under the terms of this insurance because of bodily injury or property damage sustained in an occurrence by a person who is an insured shall be reduced by “(1) all sums paid on account of such bodily injury or property damage by or on behalf of
“(i) the owner or operator of the uninsured motor vehicle and ...
“(2) the amount recovered or recoverable from the insurer of an underin-sured motor vehicle.”

If Texas law is applied, the diminution clause would have been enforceable and the $10,000 underinsured motorists coverage would be reduced to zero since plaintiffs recovered $10,000 from Murray’s insurer. If Louisiana law is applied, the dimunition clause would be unenforceable because it is contrary to the provisions of the Louisiana uninsured motorists statute. LRS 22:1406(D)(2)(b); Wilson v. State Farm Ins. Co., 448 So.2d 1379 (La.App.2d Cir.1984).

State Farm contends that CC Art. 10 mandates that Texas law should be applied. CC Art. 10 provides that “[t]he form and effect of ... private written instruments are governed by the laws and usages of the places where they are — executed.”

This court abandoned rigid application of the lex loci contractus rule of conflicts of law in the case of Sutton v. Langley, 330 So.2d 321 (La.App. 2d Cir.1976), writ denied. In its place, the “interest analysis” theory of Jagers v. Royal Indemnity Company, 276 So.2d 309 (La.1973), was applied. There Louisiana law was applied to a tort which occurred in Arkansas. Since Jagers, lex loci contractus is no longer a hard and fast conflicts of law rule in tort cases where insurance coverage is an issue. Wilson v. State Farm, supra.

Abel v. White, 430 So.2d 202 (La.App. 4th Cir.1983), recently refused to apply the interest analysis to an insurance policy issued in Texas where the accident occurred in Louisiana and involved Louisiana residents. We declined to follow Abel in Wilson v. State Farm, supra, because we found that the Jagers and Sutton cases represent a sound public policy that permits Louisiana to apply its laws where it has a sufficient interest and reason to do so.

We recognize that Texas may also have an interest in the Texas policy because Texas insurance rates could possibly be affected. We find, however, that Louisiana’s interest outweighs that of Texas and that'Louisiana law should apply. Wilson v. State Farm, supra. As State Farm notes in its well presented and supported argument, Shaw v. Ferguson, 437 So.2d 319 (La.App. 2d Cir.1983), applied CC Art. 10 to a contract that was not an automobile liability policy involved as an issue in a tort case.

AETNA COVERAGE

The trial court did not give reasons for allowing'Snider’s representatives to recover under the UM provisions of the Aet-na policy on the Bates truck. Snider was not a resident of the Bates household and was not a named insured under the policy. Snider would be an insured under the UM provisions only while occupying the Bates truck.

This language, which is defined in the policy as meaning in or upon or entering into or alighting from the vehicle, has been construed in many cases in various jurisdictions and sometimes inconsistently. See annotations at 19 ALR 2d 513 and at 42 ALR 3d 501, and cases discussed in Smith v. Girley, 260 La. 223, 255 So.2d 748 (1971) and in Day v. Coca-Cola Bottling Co., Inc., 420 So:2d 518 (La.App. 2d Cir.1982).

Plaintiffs do not contend that Snider was fatally injured while in, or while entering into, or while alighting from the Bates truck. As we have stated, Snider got out of the Bates truck and drove his truck out of the mud while it was being pulled by the Bates truck. Snider got out of his own truck after the two trucks were parked on the shoulder of the road and began removing the chain attached to the front of his truck. The chain had been removed from the Bates truck before the accident occurred. It must be concluded that Snider was not injured while in, or while entering into, or while alighting from the Bates truck. See Day, supra.

Plaintiffs argue that Snider was upon the Bates truck because the impact physically propelled him there. While it is true that Snider was crushed between the two trucks and in that sense was propelled upon or into the Bates vehicle, we cannot accept that premise to find coverage. Our acceptance of plaintiffs’ position would effectively declare that any person who was either struck by, or who himself struck, the insured vehicle was occupying that vehicle and was an insured under the policy. Such a result, in our opinion, would be contrary to the intent of the policy.

There are cases which have found a claimant upon a vehicle that has become inoperable or that was being used in the aid of another vehicle or thing.

In Macalusa v, Hartford Acc. & Indent. Co., 343 So.2d 1217 (La.App. 4th Cir.1977), plaintiff connected battery cables to his car and to his airboat. When the airboat motor started it pushed the boat toward plaintiff who was between the car and the airboat. Plaintiff braced himself with his right arm on the car and attempted to shove the airboat away with his left arm. The propeller of the airboat chopped up the hood of the car and plaintiffs arm. Plaintiff argued that he was upon the car or was struck by the ear. The court emphasized that his striking the car, rather than being struck by it, did not place him upon the car, but that he was upon the car, for coverage purposes, because he was leaning upon it in an unsuccessful effort to prevent the propeller from hitting him.

In Smith v. Girley, supra, deputy Smith was attaching one end of battery cables to his car, the other end of which he had connected to a disabled vehicle. The court emphasized that Smith was reaching over the front of his car, with its hood raised, and that his legs were touching the bumper of his car when a third car ran into the rear of the disabled car and pinned Smith between the two cars. After the accident, Smith was laying “in the hood [of his car with] ... his hands on the right fender. Both legs were pinned between the bumpers of the cars.”

In Hendricks v. American Employers Insurance Co., 176 So.2d 827 (La.App. 2d Cir.1965), writ denied, a decedent was found to have been upon his truck when he was “standing against, or almost against, the truck ... reachpng] over the closed tailgate and ... leanpng] over the truck bed ...” to retrieve a bucket of diesel fuel which was on fire. The court refused to give a narrow meaning to the word upon, citing eight cases for that construction. 176 So.2d at 831.

In Smith, supra, the court summarized many of the cases contained in the annotations cited supra and emphasized that the word upon “must connote some physical relationship between [the claimant] and the car that enlarged the area defined by the words ‘entering or alighting’ and the word ‘in’.” The court further said that it was not necessary to go as far as to say that plaintiff did not have to prove he was “actually physically touching the car at the time of the injury.” 255 So.2d at 751-752. In Day, we observed that it was the proximity or relationship, in time and in distance, between the claimant and the car that determines the specific coverage under the alighting from language, concluding that the determination must be made on the circumstances of the particular case. 420 So.2d at 520. Compare State Farm Mut. Auto. Ins. v. Farmers Ins., 569 S.W.2d 384 (Mo.App.1978).

Again we emphasize that Snider had alighted from the Bates truck and had entered his own truck to get it out of the mud. Snider alighted from his own truck after he drove it to the shoulder. The connecting chain between the trucks had been detached from the Bates truck and Snider was attempting to detach the chain from his truck when the accident occurred. He was not in, and was not entering into, or alighting from, the Bates truck. He had no legal or physical relationship with the Bates truck once the chain was removed from that truck. In the legal sense Snider was outside the Bates truck, a stranger to it, and was not upon the truck until the force of the impact propelled him there. Under these circumstances, we must hold that the trial court erred in finding that Snider was an insured under the Aetna policy on the Bates truck and entitled to the UM coverage.

In that respect in each case, we reverse the judgment awarding damages and costs against Aetna and render judgment in Aet-na’s favor rejecting the demands of the • respective plaintiffs or plaintiff in each suit against Aetna. Costs in this court are assessed one-half to the respective plaintiff in each suit and one-half to State Farm. Otherwise, the judgments appealed are affirmed.

AFFIRMED in part, REVERSED and RENDERED in part.


author: FORET, Judge.

text:
    STATE of Louisiana, Appellee, v. Paula Sue RAINWATER, aka Paula Haley, Appellant.
    No. CR83-793.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 10, 1984.

      John Crochet, Rogers, St. Romain & Ou-bre, Lake Charles, for appellant.
    Leonard Knapp, Jr., Dist. Atty., Robert R. Bryant, Asst. Dist. Atty., Lake Charles, for appellee.
    Before GUIDRY, FORET and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

Defendant, Paula Sue Rainwater, aka Paula Haley, was charged in one bill of information with five counts of accessory after the fact to burglary of an inhabited dwelling, and one count of accessory after the fact to simple burglary. In a separate bill of information, defendant was also charged with accessory after the fact to felony theft. LSA-R.S. 14:25. She pleaded guilty to all charges, and, on June 24, 1983, was sentenced to eighteen months in the Department of Corrections on each charge. The eighteen-month sentences for the first three counts of accessory after the fact to burglary of an inhabited dwelling were to run consecutively. All other sentences were to be served concurrently. In all, four and one-half years were to be served consecutively.

Since defendant was charged with accessory after the fact to felony theft in a separate bill of information, her conviction on this charge has been appealed separately (our docket number CR 83-792). The issues in both appeals are the same and they will be treated fully in this decision .

On appeal, defendant makes the following assignments of error:

(1) The sentence imposed was cruel, unusual and excessive;
(2) The court failed to state for the record the considerations taken into account and factual basis therefor in imposing sentence as required by LSA-C.Cr.P. Article 894.1.
(3) The sentencing judge abused his discretion by recalling a pre-sentence investigation that he had previously ordered.

ASSIGNMENT OF ERROR NUMBER 1.

By this assignment, the defendant contends that the sentences violated the constitutional prohibition against cruel, excessive, and unusual punishment. LSA-Const., Art. 1, § 20; State v. Sepulvado, 367 So.2d 762 (La.1979). A sentence is excessive if it is grossly out of proportion to the severity of the crime, or if it is nothing more than a purposeless and needless imposition of pain and suffering. State v. Phagans, 412 So.2d 580 (La.1982). The trial judge, however, is given wide discretion in the imposition of sentences and his decision should not be disturbed absent a manifest abuse of this discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Feeback, 414 So.2d 1229 (La.1982).

Given the number of charges against defendant, and the nature of her crimes, the sentences imposed were not excessive. The court could have imposed sentences of up to thirty-five years. The sentences it did impose on defendant were well within the lower range of the sentencing scale. Although defendant had no pri- or felony convictions, she had a lengthy arrest record that showed she had been convicted of, among other things, resisting arrest and criminal mischief. We also note that the criminal acts of defendant were not isolated in time, but occurred over a number of months.

Considering all of the circumstances of this case, we find that the sentences imposed were neither cruel, unusual, nor excessive. The trial judge did not abuse his broad discretion in sentencing defendant.

This assignment is without merit.

ASSIGNMENT OF ERROR NUMBER 2.

By this assignment, the defendant contends that the trial judge erred in his imposition of sentences because he did not follow the guidelines set forth in LSA-C.Cr.P. Article 894.1. The record indicates, however, that the trial judge did follow the guidelines set forth in Article 894.1. Before sentencing the defendant, the judge specifically mentioned several factors which influenced his decision. He stated that defendant had no respect for and freely violated the sanctity of private homes, and the right of inhabitants to be secure in their goods and effects. He concluded that defendant was in need oí correctional treatment and that a lesser sentence would deprecate the seriousness of defendant’s crimes. The record shows that the trial judge considered a letter written to him by defendant, and a plea on defendant’s behalf by her father. The trial judge stated in his reasons for sentencing that he had not found any circumstances which would justify the suspension of sentence or probation.

The trial judge need not articulate every factor mentioned in the guidelines which he considered in imposing sentence. State v. Straughter, 406 So.2d 221 (La. 1981). The requirements of Article 894.1 are fulfilled when the record affirmatively shows that the trial judge considered the statutory sentencing guidelines. State v. Brooks, 431 So.2d 865 (La.App. 2 Cir.1983); State v. McDermitt, 406 So.2d 195 (La. 1981). In the present case, the record shows that the trial judge considered the guidelines in imposing sentence and articulated at least some of those which influenced his sentence. Accordingly, we find that the trial judge did not violate Article 894.1.

However, we point out that even if the trial judge had not complied with Article 894.1, there would be no need for resen-tencing in the instant case. Non-compliance with the statute does not automatically require that the sentence be set aside. Even if the trial judge does not adequately consider the guidelines of Article 894.1, where a sentence imposed is not apparently severe and is in the lower range of the sentencing scale, the appellate court need not remand for compliance with Article 894.1. State v. Jones, 412 So.2d 1051 (La.1982); State v. Bowick, 403 So.2d 673 (La.1981); State v. Day, 391 So.2d 1147 (La.1980).

In the instant case, the sentence of four and one-half years to be served consecutively was well within the lower range of the sentencing scale, whose upper limit was thirty-five years. Considering the crimes to which defendant plead guilty and all the circumstances surrounding their commission, we do not think that the sentences imposed were apparently severe. Therefore, even if we thought that the trial judge had not followed the guidelines of Article 894.1, we would not remand this case for resentencing.

This assignment of error is without merit.

ASSIGNMENT OF ERROR NUMBER 3.

In her last assignment of error, defendant contends that the trial court abused its discretion in recalling the pre-sentence investigation. After the defendant had plead guilty, the trial judge ordered a pre-sen-tence investigation, but later recalled it. The trial judge evidently felt that the record contained enough information concerning defendant for him to make a decision regarding sentencing.

It is well settled that under LSA-C. Cr.P. Article 875, the pre-sentence investigation is discretionary, not mandatory, with the trial court. State v. Williams, 420 So.2d 1116 (La.1982). While acknowledging this, defendant maintains that once the trial judge ordered the pre-sentence investigation, he had no power to recall it. Defendant points to several portions of Article 875 which contain the word “shall”.

“All such reports shall be made within sixty days of conviction except that when the defendant is released on bond pending imposition of sentence, such reports shall be made within ninety days of conviction. In making the investigation, the probation officer shall inquire into the circumstances attending the commission of the offense, the defendant’s history of delinquency or criminality, his family situation and background, economic and employment status, education and personal habits.” LSA-C.Cr.P. Article 875. (Emphasis ours.)

While defendant is correct in pointing out the mandatory nature of these passages, he is incorrect to conclude that they divest the trial judge of the right to, in his discretion, recall a pre-sentence investigation. These mandates regulate the time for making a report, and what will be included in the report. They clearly do not denote an intention to take away the trial court’s discretion to forego the preparation and use of a pre-sentence investigation in imposing sentence. The trial judge, who is vested with the discretion to order a pre-sentence investigation, maintains the discretion to recall that order.

This assignment of error is without merit.

For the above mentioned reasons, the convictions and sentences of defendant are affirmed.

AFFIRMED.

      . For our opinion rendered in CR 83-792, see State v. Rainwater, 448 So.2d 1390 (La.App. 3 Cir.1984).


text:
    STATE of Louisiana, Appellee, v. Paula Sue RAINWATER, aka Paula Haley, Appellant.
    No. CR83-792.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 10, 1984.
    William Ziegler, Salter, Streete & Hale, Lake Charles, for appellant.
    Leonard Knapp, Jr., Dist. Atty., Robert R. Bryant, Asst. Qist. Atty., Lake Charles, for appellee.

      Before GUIDRY, FORET and CULPEP-PER , JJ.

       Judge William A. Culpepper, Retired, Judge Ad Hoc.

   FORET, Judge.

For the reasons assigned this date in State v. Rainwater, 448 So.2d 1387 (La.App. 3 Cir.1984), with which this instant case was consolidated on appeal, the decision of the trial court is affirmed.

AFFIRMED.


author: PER CURIAM.

text:
    John M. KOVTAN, Appellant, v. Kay H. FREDERIKSEN, Appellee.
    No. 83-326.
    District Court of Appeal of Florida, Second District.
    March 21, 1984.
    Rehearing Denied April 30, 1984.
    Thomas E. Reynolds of Law Office of Edward D. Foreman, St. Petersburg, for appellant.
    Zala L. Forizs of Blasingame, Forizs & Smiljanich, St. Petersburg, for appellee.
   PER CURIAM.

In this appeal appellant contends the trial court erred in directing a verdict against appellant in his suit to recover money damages for accounting services rendered to appellee.

Upon review of the record, including the briefs, and after hearing oral argument, we conclude that appellant based his claim for relief on the quasi-contract theory of contract recovery. However, during the course of the trial, appellant testified that appellee expressly agreed to compensate him for the services, thereby proving the existence of an express agreement between the parties. It is well settled that the law will not imply a contract where an express contract exists concerning the same subject matter. Hazen v. Cobb, 96 Fla. 151, 117 So. 853 (1928); Williams v. Stewart, 424 So.2d 204 (Fla. 2d DCA 1983); Poe v. Estate of Levy, 411 So.2d 253 (Fla. 4th DCA 1982); Tobin & Tobin Insurance Agency v. Zeskind, 315 So.2d 518 (Fla. 3d DCA 1975); Solutec v. Young & Lawrence Associates, Inc., 243 So.2d 605 (Fla. 4th DCA 1971).

Accordingly, we affirm the trial court’s granting of appellee’s motion for directed verdict.

OTT, C.J., and BOARDMAN and RYDER, JJ., concur.