text:
    STATE of Louisiana v. Earl VOLPE.
    No. 83 KA 0969.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Rehearing Denied April 3, 1984.
    Writ Denied June 1, 1984.
    Leon A. Picou, Jr., St. Francisville, for plaintiff.
    Charles E. Griffin, II, Jesse L. Means, Jr., St. Francisville, for defendant.

      Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue in this criminal case is whether or not the trial court erred in ruling on certain evidentiary matters. The facts giving rise to this litigation are as follows.

Defendant Earl Volpe was indicted by a grand jury for aggravated battery following an incident which occurred in the Louisiana State Penitentiary at Angola. He slashed a fellow inmate with a razor blade as the inmate passed in front of defendant’s cell on the way to the shower. Defendant claimed he was acting in self-defense because he had received verbal threats from the victim and recent warnings from other prisoners about his dangerous character.

A jury convicted defendant of second degree battery, a responsive verdict for the crime of which he was indicted. After the State filed an habitual offender petition under La.R.S. 15:529.1, defendant was adjudicated a fourth felony offender and sentenced to serve twenty years at hard labor consecutively with any other imposed sentences.

Defendant assigns three errors:

(1) the trial court erred in denying suppression of the razor blade which had not been made available to defendant after his motion for discovery;

(2) the trial court erred in refusing to admit certain testimony under the res ges-tae exception to the hearsay rule; and

(3) the trial court erred in ruling defendant failed to show an overt act or a hostile demonstration by the victim thus precluding testimony as to the dangerous character of the victim and his threats against the accused.

ASSIGNMENT OF ERROR NUMBER ONE

Pursuant to Code Crim.P. art. 718, defendant filed a motion for discovery and inspection requesting the state to “... authorize the defendant to inspect ... tangible objects ... which are within the possession, custody, or control of the state, and ... are intended for use by the state as evidence at the trial_” The State answered the motion and agreed to allow discovery and inspection of the above. Defendant did not exercise his right to inspect the evidence. When the State attempted to introduce the razor blade used in the attack, defense counsel objected, alleging he had no notice of the State’s intent to introduce the razor blade nor an opportunity to examine it. Defendant avers the State had a duty to inform him of the whereabouts of the razor blade and its intention to introduce it at trial.

We find no merit to this argument. The weapon was locked in a safe in a security trailer at Angola and defendant’s inspection of the blade could have been easily arranged and was not prevented by the State. When no attempt is made to inspect evidence pursuant to a motion for discovery and inspection, a contention that the verdict should be overturned because of noncompliance with the rules of discovery is without merit.

ASSIGNMENT OF ERROR NUMBER TWO

In this assignment of error, defendant argues the court erred in denying the jury the opportunity to hear certain testimony which was admissible under the res gestae exception to the hearsay rule.

In an attempt to support his self-defense claim, defendant tried to prove the victim made verbal threats against him approximately two hours before the attack. Defendant attempted to show the victim’s threats through the testimony of an inmate. The inmate testified, out of the presence of the jury, the victim made verbal threats to defendant when defendant first came onto the tier and again after defendant was placed into his cell. Defendant alleges these threats were admissible under the res gestae exception to the hearsay rule.

La.R.S. 15:447 defines res gestae as follows:

“Res gestae are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events. What forms any part of the res gestae is always admissible in evidence.”

La.R.S. 15:448 provides:

“To constitute res gestae the circumstances and declarations must be necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.”

The attack occurred approximately two hours after the victim made the alleged threats. Although time lapses are not the sole consideration in determining whether or not a declaration constitutes res gestae, verbal threats from one inmate to another, within approximately two hours of an attack upon the threatening prisoner, do not form one continuous transaction and therefore do not constitute res gestae within the meaning of La.R.S. 15:448. See, State v. Billiot, 421 So.2d 864 (La.1982), rehearing denied 1982. Accordingly, the trial court was correct in ruling the threats made by the victim while he was still in his cell were not admissible under the res gestae exception to the hearsay rule.

ASSIGNMENT OF ERROR NUMBER THREE

In this assignment of error defendant contends the trial court erred in ruling defendant had failed to show an overt act or hostile demonstration by the victim. Because of this ruling the testimony as to the dangerous character of the victim and his threats against defendant could not be presented to the jury.

La.R.S. 15:482 provides:

“In the absence of evidence of hostile demonstration or of overt act on the part of the person slain or injured, evidence of his dangerous character or of his threats against accused is not admissible.”

The evidence proffered to show the victim’s overt act or hostile demonstration consisted of testimony of several inmates who stated the victim threatened defendant before the victim was let out of his cell to go to the shower. The prisoners also testified the victim initially walked in front of defendant’s cell, threatened to return, walked past the cell, then turned around and walked back to defendant’s cell where the victim was slashed with a razor blade. Defendant contends these actions along with the prior threats constitute an overt act or hostile demonstration by the victim. We disagree.

Prison guards testified the victim walked in a continuous line down the tier and did not turn back toward defendant’s cell. Even accepting defendant’s witnesses’ testimony as credible there has been no showing of an overt act or hostile demonstration on the part of the victim. The jurisprudence has defined an overt act as any act of the victim which manifests in the mind of a reasonable person a present intent to kill or inflict great bodily harm. State v. King, 347 So.2d 1108 (La.1977); State v. Cavalier, 421 So.2d 892 (La.1982). The evidence here does not reflect any overt act which would manifest a present' intent to kill or inflict great bodily harm. Under the literal language of La.R.S. 15:482, the defendant must present evidence of a hostile demonstration or of an overt act by the victim before evidence of dangerous character or threats can be admitted. Therefore the trial court was correct in concluding the proper predicate for the introduction of the victim’s threats and dangerous character had not been laid.

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

AFFIRMED.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    STATE of Louisiana v. David Leo RAYMOND.
    No. 83 KA 0999.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied April 23, 1984.
    Ossie B. Brown, Dist. Atty. by Samera Abide, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    David Price, Appellate Co-Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, David Leo Raymond was charged by bill of information with the crime of indecent behavior with a juvenile on January 25, 1983, in violation of LSA-R.S. 14:81. He pled not guilty.

Defendant waived trial by jury, was tried by the judge and found guilty as charged. He was given a sentence of five years at hard labor; the court suspended all but 100 days of the sentence to which was credited time served, and placed defendant on active supervised probation for five years with the special conditions that (1) he make no contact whatever with the victim and the family of the victim, (2) he not be convicted for offenses committed during the probationary period; (3) he report to a mental health facility for whatever counseling deemed necessary, at his own expense (to be selected by the Division of Probation and Parole); and (4) he pay court costs in the amount of $93.20. The court also imposed special conditions of probation under LSA-C.Cr.P. 895, that (1) he remain within the jurisdiction of the court; (2) he obtain permission of the Probation Office before changing his address or employment; (3) he maintain full-time employment or occupation; and (4) he report to the Probation Office as directed by the Office. On appeal, defendant assigned fifteen errors for reversal of his conviction; eight are not briefed and are, therefore, considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal.

ASSIGNMENTS OF ERROR

1. The trial court erred when it excluded from the courtroom persons who were relatives of the defendant and who were not witnesses.

2. The trial court erred when it sustained the prosecution’s objection that defense counsel’s question attacking a witness’ credibility was irrelevant.

3. The trial court erred when it overruled defense objection to the court’s rulings sustaining prosecution’s objection.

⅜ * * * * *

5. The trial court erred when it denied a defense motion for a directed verdict.

6. The trial court erred when it overruled defense objection to the court’s ruling denying defense motion for a directed verdict.

* * * * % *

12. The trial court erred when it denied the defense motion for a new trial.

13. The trial court erred when it overruled a defense objection to the court’s ruling denying the defense motion for a new trial.

* ¡H * * * ⅝

The assignments fall into two categories, as follows:

1. The trial court erred when it excluded the adult children of the accused’s wife from the courtroom.

2. The trial court erred when it denied defense the opportunity to challenge the credibility of prosecution’s primary witness.

The victim was a two-year-old child that defendant and his wife were baby-sitting. At the trial, the primary witness for the state was the accused’s wife. Defendant asserted his husband-wife privilege as to confidential communications. When advised by the court of her right not to testify against her husband, defendant’s wife asserted her privilege, and declined to testify against her husband. A recess was called, during which time the assistant district attorney spoke privately with the witness. When court resumed, the state informed the court that the witness was intimidated by the presence in the courtroom of two of her adult children. The state moved that the children, ages 18 and 20, be excluded from the courtroom. The court, after hearing on the predicate, granted the state’s motion to exclude the two children. Defendant gave notice of his intention to seek supervisory writs, and requested a stay of the proceedings. The trial court granted the stay, during which time this Court and the Supreme Court denied defendant’s request for writs. The trial resumed, and, after presentation of all evi-denee, the defendant was found guilty as charged.

ASSIGNMENT OF ERROR NOS. 1, 5, 6, 12 AND 13

Defendant contends that the trial court committed reversible error when it excluded the adult children of defendant’s wife from the courtroom while she was testifying, arguing that by this action defendant was denied his constitutional right to a public trial.

In criminal cases, the accused is granted the right to enjoy a public trial. U.S. Const.Amend. 6 and 14; La. Const. Art. 1, sec. 16 (1974). The right to a public trial is not a “limitless imperative”; the right is subject to the trial judge’s power to keep order in the courtroom, or to prevent unnecessary pressures or embarrassment to a witness. United States ex rel. Smallwood v. La Valle, 377 F.Supp. 1148 (E.D.N.Y.1974); aff’d 508 F.2d 837 (1974); cert. denied 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788 (1975). A trial judge may, in his sound discretion, exclude spectators from the courtroom while the testimony of a witness in a criminal case is being taken, if such a step is reasonably necessary to prevent embarrassment or emotional disturbance of that witness or to enable that witness to testify to facts material to the case. State v. Poindexter, 231 La. 630, 92 So.2d 390 (1956).

The transcript of testimony taken during trial reveals that, at the hearing on the predicate, the trial judge requested the two adult children of defendant’s wife to leave the courtroom. As they were leaving, a threatening remark was made by the witness’ son, which the court reporter noted:

REPORTER’S NOTE: A voice in the courtroom audience was heard to say “That’s all right you gonna get it.”

At the hearing on the predicate, Mrs. Raymond testified that she had asserted her privilege because she did not want to testify about this incident in the presence of her son and daughter; she wanted them to hear about it from her and/or her husband in their own words. At that point, the witness admitted that the adult children were not making any physical disturbance, that it was only their presence that inhibited her testimony. It was stipulated that the two children were not witnesses, only spectators. Defendant’s wife testified that they were her children from a previous marriage, had lived with her and defendant since their marriage, and that they loved her husband.

The witnesses and spectators were returned to the courtroom at the close of the hearing. The trial judge admonished the son for his remark, and then announced his decision that the two children would be excluded from the courtroom while their mother testified. When trial was resumed two days later, following the denial of writs, the children were excluded.

The state argues that the exclusion of the two spectators for a limited time during trial does not amount to a denial of a public trial to defendant; and further, that the trial judge was clearly within his discretion when he excluded the children under the existing circumstances.

We agree and note that the state’s motion to exclude the witness’ children was reinforced when the witness’ son did in fact commit a disruptive and threatening act. We find no abuse of discretion on the part of the trial judge in excluding the particular spectators, defendant’s wife’s adult children, from the courtroom so that Mrs. Raymond might testify without embarrassment or intimidation as to facts material to the case at bar.

There is no merit to these assignments of error.

ASSIGNMENT OF ERROR NOS. 2 AND 3

Defendant next contends that the trial court erred when it refused to allow him to challenge on cross-examination the credibility of the state’s primary witness, Mrs. Raymond, who was allegedly an eye-witness to the offense. At the trial, when defense counsel attempted to question Mrs. Raymond about a prior complaint allegedly similar to the one at bar which was lodged against her ex-husband, the state objected on the grounds of irrelevancy. The state’s objection was sustained by the court. Defendant argues that in denying to defendant the right to bring out these events, which happened prior to their marriage, defendant was denied the right to reveal the state of mind of the witness, and possible bias.

While evidence of bias in the particular case on trial is admissible, LSA-R.S. 15:492, the bias of a witness which may be shown must be direct or personal against the defendant rather than indirect or general in nature. State v. Lewis, 328 So.2d 75 (La.1976), cert. denied, 429 U.S. 833, 97 S.Ct. 98, 50 L.Ed.2d 98 (1976). Although LSA-R.S. 15:486 grants to each side the right to impeach the testimony and credibility of every witness sworn on behalf of the other side, LSA-R.S. 15:494 provides that it is not competent to impeach a witness as to collateral facts or irrelevant matter. Moreover, the trial judge is vested with sound discretion in ruling on the relevancy of evidence and such ruling will not be disturbed on appeal in the absence of a showing of manifest abuse of discretion. State v. Chaney, 423 So.2d 1092 (La.1982).

We agree with the trial judge’s ruling that the facts sought to be brought out by defense were not relevant to the instant charge and were not personal against defendant. Evidence of prior acts of the witness’ ex-husband, who was not in any way involved in the instant case, clearly concerns facts collateral to the issue of this trial, and such testimony is not relevant on the question of whether defendant is in fact guilty of the crime charged. Consequently, the trial court did not err in refusing to admit this testimony for the purpose of showing bias or impeaching the testimony of the state’s primary witness.

These assignments of error lack merit.

Finding none of the assignments of error to be meritorious, we affirm the conviction and sentence.

DECREE

For the reasons assigned, the conviction and sentence of defendant, David Leo Raymond, are affirmed.

AFFIRMED.


author: CRAIN, Judge.

text:
    STATE of Louisiana v. Oliver A. WALKER.
    Nos. 83 KA 1020, 83 KA 1021.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.

      Ossie Brown, Dist. Atty. by Glen Petersen, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Johnny Wellons, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   CRAIN, Judge.

This is an appeal by defendant of his conviction of simple robbery.

Defendant, Oliver A. Walker, was charged by bill of information with armed robbery, a violation of La.R.S. 14:64. The jury returned a responsive verdict of guilty to simple robbery, and, after a hearing in which defendant was adjudicated a second habitual felony offender, he was sentenced to serve five years at hard labor. He has appealed, alleging that:

1. The trial court erred in denying a motion for a post judgment verdict of acquittal because the state failed to prove specific intent..
2. There is insufficient evidence to support the verdict.
3. The trial court erred in denying the motion for a post judgment verdict of acquittal on the grounds that the State failed to prove defendant participated in the crime.

Defendant was charged with the armed robbery of a Vietnamese native who had asked defendant for directions to a place where he could buy beer. The victim and a companion followed in their car behind defendant, who drove to a deserted area, stopped his car, pulled a knife and robbed the victim of his cash and some jewelry before driving off. The victims immediately called the police and gave the officers a report at the scene. A short time later, the victims spotted the car defendant had been driving and alerted police officers, who were still in the area. The police followed defendant to his mother’s house where he was arrested.

ASSIGNMENTS OF ERROR ONE, TWO AND THREE:

Although defendant argues each issue separately, all of his assignments of error are concerned with the sufficiency of the evidence to support the verdict. When reviewing the sufficiency of the evidence, the appellate court must review under the standard of La.C.Cr.P. art. 821 regardless of whether the question is raised as a motion for a post verdict judgment of acquittal or as an assignment of error from a holding of the trier of fact. La.C.Cr.P. art. 821; State v. Korman, 439 So.2d 1099 (La.App. 1st Cir.1983); Joseph, Developments in the Law, 1982-1983: Post Conviction Procedure, 44 LLR 480 (1983). The standard established by La.C.Cr.P. art. 821 is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. La.C.Cr.P. art. 821; Korman, 439 So.2d at 1100. The victim testified at the trial and positively identified defendant as the man who had robbed him. Viewed in the light most favorable to the prosecution, a rational juror could have determined that the defendant committed the crime and that he had the requisite specific intent. We find no error in the trial court’s denial of post verdict judgment of acquittal under La.C.Cr.P. art. 821.

For the foregoing reasons we affirm the conviction and sentence.

AFFIRMED.


author: SHORTESS, Judge.

text:
    STATE of Louisiana v. Andrea JOHNSON.
    No. 83 KA 1027.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Ossie Brown, Dist. Atty., by Brenda Creswell, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before SHORTESS, LANIER and CRAIN, JJ.
   SHORTESS, Judge.

Defendant, Andrea Johnson, was charged by bill of information with receiving stolen things of a value of more than $100.00 but less than $500.00 on April 16, 1980, in violation of La.R.S. 14:69. Defendant pled not guilty. After a jury trial, defendant was found guilty of receiving stolen things in the amount of less than $100.00. He was sentenced to six months without hard labor, said sentence to run consecutively with any other sentence the accused was then serving. He was also ordered to pay costs. Defendant appealed his conviction and sentence and originally alleged six assignments of error. Only one assignment of error was briefed; therefore, the others are considered abandoned. Uniform Rules, Courts of Appeal, Rule 2-12.4; State v. Trevathan, 432 So.2d 355 (La.App. 1st Cir.1983), writ denied, 437 So.2d 1141 (La.1983).

FACTS

On August 16, 1980, defendant and Paula Edwards shared an apartment located at 2750 Alaska Street in Baton Rouge. At that time defendant was already in jail on another charge, but the police were investigating some house burglaries so Officers Jude Boudreaux and Malcolm D. Cain went to the apartment. After some discussions, Paula Edwards voluntarily signed a consent to search form. The officers then searched her apartment and found a man’s wrist watch engraved “Joseph Lanier, Delta Airlines, Twenty years service.” The officers then confronted defendant with the fact that they had recovered the watch. Defendant admitted that the watch was his, but he could not remember where he had gotten it. Joseph Lanier testified that the watch, along with other items, had been stolen in a burglary of his house.

During trial as the State conducted its direct examination of Officer Cain, the following colloquy took place:

Q. And where did you talk to him? Where were you when you talked to him?
A. Mr. Johnson was at the jail. We brought him to the office and he did advise that—
Q. Wait before you get into that. Did he talk to you?
A. Yes, sir.
Q. Prior to him talking to you, did you give him his Miranda rights?
A. Yes, sir.
Q. Did you tell him what he was being questioned about?
A. Yes, sir.
Q. In fact, was he under arrest at the time you talked to him?
A. He was under arrest for unrelated charges not anything involving that watch.

Defense counsel moved for a mistrial on the grounds that La.C.Cr.P. art. 770(2) requires a mistrial when a reference is made by judge, district attorney or court official during the trial to other crimes by the defendant to which evidence is not admissible.

The trial court denied the motion for mistrial but strongly admonished the jury that it was to disregard any references to any offenses other than the charge of receiving stolen things.

ASSIGNMENT OP ERROR

Defendant contends that the trial court erred when it denied his motion for mistrial based upon Cain’s mention of another crime committed by defendant.

The defendant argues in brief that Cain’s testimony mandates a mistrial in accordance with La.C.Cr.P. art. 770 which states in pertinent part:

Upon motion of a defendant, a mistrial shall be ordered when a remark or comment, made within the hearing of the jury by the judge, district attorney, or a court official, during the trial or in argument, refers directly or indirectly to:
(2) Another crime committed or alleged to have been committed by the defendant as to which evidence is not admissible; ... (Emphasis added.)

Article 770 makes it clear that the remark or comment must be made by the judge, district attorney, or a court official. Cain was a police officer. That status did not qualify him as a court official. See State v. Hayes, 414 So.2d 717 (La.1982).

In State v. Harris, 383 So.2d 1, 9 (La.1980), the Louisiana Supreme Court stated:

This Court has generally recognized that a police officer’s unsolicited, unresponsive reference to another crime by the defendant is not the comment of a court official under Article 770. Absent a showing of a pattern of unresponsive answers or improper intent by the police officer or prosecutor such comments would not fall within the purview of Article 770. State v. Schwartz, 354 So.2d 1332 (La.1978); State v. Hammontree, 363 So.2d 1364 (La.1978); State v. Martin, 376 So.2d 300 (La.1979).

The aforementioned rule applies to this case, and a mistrial was not mandated under La.C.Cr.P. art. 770. The police officer witness was not a court official. Therefore, the judge had discretion to deny a mistrial. Officer Cain’s testimony showed no pattern of unresponsive answers. The one unresponsive answer given by the witness was not so prejudicial to defendant as to warrant a mistrial.

The trial judge promptly admonished the jury to disregard any reference to the unspecified crime mentioned by Cain insofar as the guilt or innocence of defendant was concerned. Our review of the entire record shows that the trial judge’s admonishment was sufficient to correct any prejudice which may have resulted from Cain’s testimony. Defendant was not deprived of a fair trial.

Defendant’s assignment of error lacks merit.

CONCLUSION

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana v. Leon TURNER.
    No. 83 KA 1040.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Granted June 25, 1984.
    Ossie Brown, Dist. Atty. by Luke Lav-ergne, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Fournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.

      Before COVINGTON, COLE and SA-VOIE, JJ.
   COLE, Judge.

The issue before us is whether or not the sentence imposed upon the defendant is excessive. After trial by jury, defendant, Leon Turner, was convicted of attempted second degree murder, a violation of La.R.S. 14:30.1 and 14:27. He was sentenced to fifteen years at hard labor. He appeals alleging, in his sole assignment of error briefed, the trial court imposed an excessive sentence.

Defendant contends his sentence is excessive because he is 54 years old and a diabetic requiring medication twice a day. He relies on the case of State v. Huizar, 414 So.2d 741 (La.1982) in which the Louisiana Supreme Court noted the considered factors of age and poor health in affirming a sentence of five years at hard labor for attempted second degree murder. The defendant in Huizar was 48 years old and suffering from tuberculosis. Huizar is distinguishable from the case before us. In Huizar fifteen years had elapsed since the defendant’s last crime and in this case only three years elapsed since the defendant’s last crime. Furthermore, the trial court in Huizar noted the doubtful credibility of the state’s witnesses whereas the trial court in this case agreed completely with the jury’s rejection of defendant’s story of self-defense, commenting there was no evidence to the contrary.

Because of the above distinctions we do not find Huizar is controlling and turn to the jurisprudential and statutory guidelines in determining whether or not the sentence is excessive.

A sentence is excessive if it is grossly disproportionate to the severity of the crime or is nothing more than a needless imposition of pain and suffering. State v. Reed, 409 So.2d 266 (La.1982). A sentence is grossly disproportionate if it shocks the sense of justice when the offense and punishment are considered in light of the harm done to society. State v. Lewis, 430 So.2d 1286 (La.App. 1st Cir. 1983), writ denied, 435 So.2d 433 (La.1983). La.Code Crim.P. art. 894.1 lists aggravating and mitigating factors the court must consider and articulate in imposing sentence.

The trial court’s reasons for imposition of the fifteen year sentence in this case reflect a careful consideration of the jurisprudential and statutory guidelines. It cautiously tailored the sentence to defendant’s age, health, family responsibilities, past conduct and criminal propensities, while bearing in mind the severity of the crime.

The defendant’s conviction of attempted second degree murder could have resulted in a sentence of fifty years at hard labor. By receiving a sentence of 15 years at hard labor, he received less than one-third of the possible sentence. Although a majority of the Louisiana Supreme Court held in State v. Sepulvado, 367 So.2d 762 (La.1979), the imposition of a sentence within statutory limits may violate a defendant’s constitutional right against excessive punishment and is therefore subject to appellate review, the trial judge is given great discretion in imposing sentences within statutory limits. Sentences imposed by the trial court within statutory limits should not be set aside as excessive absent manifest abuse of discretion. State v. Prados, 404 So.2d 925 (La.1981); State v. Spencer, 374 So.2d 1195 (La.1979).

In imposing incarceration, as opposed to probation, the court noted the defendant had previously been convicted on other felony charges and violated his probated sentence. The court placed particular emphasis on the fact the defendant had been convicted of other violent crimes and still had a propensity for violence. A propensity for felonious behavior is a factor which the court should consider in imposing sentence because it creates an undue risk the defendant will commit another crime. State v. Douglas, 389 So.2d 1263 (La.1980) rehearing denied 1980; La.Code Crim.P. art. 894.1. The court further noted that anything other than a term of confinement would deprecate the seriousness of defendant’s conduct. Weighing all of these factors against the mitigating aspects of defendant’s age and health, we can not say the sentence imposed by the trial court is an abuse of its great discretion in imposing sentence. Accordingly, the sentence is affirmed.

AFFIRMED.

      . Assignment of error number 1 was not briefed and is therefore considered abandoned. Rule 2-12.4, Uniform Rules, Courts of Appeal.


author: LOTTINGER, Judge.

text:
    Erline Wright CREARY v. Ansel Lloyd CREARY.
    No. 83 CA 1042.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Leo J. Berggreen, Baton Rouge, for plaintiff-appellee Erline Wright Creary Val-lery.
    Johnnie A. Jones, Baton Rouge, for defendant-appellant Ansel Lloyd Creary.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   LOTTINGER, Judge.

This is a summary proceeding instituted by plaintiff, Erline Wright Creary, seeking a change of custody to herself, and in the alternative, an award of joint custody. The trial court awarded joint custody and ordered both parties to submit plans of joint custody to the court on or before June 29, 1983. The defendant-father appeals.

La.C.C. Art. 146, as amended by Act 307 in 1982, effective January 1, 1983, legislatively provides for a preference for joint custody in child custody cases. La.C.C. Art. 157 makes the provisions of Article 146 applicable to permanent custody cases. Thus, joint custody is presumed unless the parent requesting sole custody proves that it would not be in the best interest of the child.

In the instant case we have searched the record as well as making inquiries to the trial court to determine whether a plan of implementation has been approved or imposed by the trial court. None has been found.

We are of the opinion that in amending Article 146 the legislature intended that when joint custody is awarded, a plan of implementation of joint custody be included in the decree. Otherwise, inasmuch as a joint custody decree is an appealable judgment, one parent would be forced within the applicable time period to appeal said judgment. Additionally, when the plan of implementation is ultimately approved or imposed by the trial court, a second or subsequent appeal could result. Thus, the question of joint custody and the implementation thereof would arrive in the appellate court for review by separate appeals. This is not desirable and certainly not what the legislature intended.

Therefore, under the authority of La. Code Civ.P. Art. 2164, we remand this case to the Family Court for the purpose of the approval or imposition of a plan of implementation and the inclusion of same in the custody decree.

Costs of this appeal are assessed to the appellant. REMANDED.


author: WATKINS, Judge.

text:
    Frank P. ARNONE v. ILLINOIS CENTRAL GULF RAILROAD COMPANY.
    No. 83 CA 1053.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Charles B.W. Palmer, Amite, for plaintiff-appellee.
    Frank S. Craig, III, Chris Lipsey, Baton Rouge, for defendant-appellant.
    Before PONDER, WATKINS and CARTER, JJ.
   WATKINS, Judge.

This show cause was issued pursuant to a motion by defendant-appellant, Illinois Central Gulf Railroad, to dismiss the answer filed in this appeal by plaintiff-appel-lee, Frank P. Arnone, on the basis of untimeliness.

The instant appeal arises out of a suit filed by Arnone against Illinois Central Gulf Railroad for crop damages. Following judgment in plaintiff’s favor, defendant took an appeal therefrom. The return date for this appeal was set for September 18, 1983. The record was lodged on September 13, 1983. On October 5, 1983, plaintiff filed an answer to defendant’s appeal requesting an increase in the damages awarded. Subsequently, this motion to dismiss was filed by defendant.

Louisiana Code of Civil Procedure 2133 provides that an answer to an appeal must be filed “... not later than fifteen days after the return day or the lodging of the record whichever is later.” In the instant case, the September 18th return date was the later of these two dates. Accordingly, plaintiff had fifteen days therefrom in which to file an answer.

Plaintiff admits in his Opposition to Motion to Dismiss, answer was not filed within this period. Nevertheless, he argues that his answer should not be dismissed since the language of LSA-C.C.P. art. 2133 does not specifically mandate such a result. While it is true that art. 2133 does not expressly mandate dismissal, the jurisprudence is clearly to the effect that an untimely answer cannot be considered by an appellate court. See: Commercial Union Insurance Company v. Melikyan, 430 So.2d 1217, 1224 (La.App. 1st Cir.1983); Good v. Louisiana Commission on Governmental Ethics, 370 So.2d 123 (La.App. 1st Cir.1979), writ denied 371 So.2d 836 (1979); Cefalu v. Cefalu Company, 253 So.2d 547 (La.App. 1st Cir.1971). Accordingly, an answer not filed within the delay permitted by law is subject to dismissal upon motion by the opposing party. Sanders v. Williams, 434 So.2d 172, 175 (La. App. 3d Cir.1983); McCaskill v. Deviney Construction Company, 323 So.2d 178 (La.App. 3d Cir.1975), writ denied, 325 So.2d 615 (1976).

The motion to dismiss filed by Illinois Central Gulf Railroad Company is hereby granted, and the answer to appeal filed by Frank P. Arnone is hereby dismissed, all costs of the answer to the appeal to be ’borne by Frank P. Arnone.

ANSWER TO APPEAL DISMISSED.


text:
    STATE of Louisiana v. Karl J. ACOSTA.
    No. 83 KA 1056.
    Court of Appeal of Louisiana, First Circuit.
    Feb. 28, 1984.
    Writ Denied May 4, 1984.

      Ossie Brown, Dist. Atty., Baton Rouge, by Premila Chumbley, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Michele Pournet, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   COVINGTON, Judge.

The defendant, Karl J. Acosta, was charged by bill of information with the attempted first degree murder of Cindy Quebedeaux on February 19, 1983, in violation of LSA-R.S. 14:27, 30. The defendant pled guilty.

After hearing, the defendant was sentenced to twenty-five years at hard labor. The defendant has appealed his sentence alleging it is excessive.

The charge of attempted first degree murder was based on the following facts: On February 19, 1983, at about 5:30 p.m., Karl J. Acosta drove his girlfriend to work as a waitress at Larry K. Sullivan’s in Cortana Mall in East Baton Rouge Parish. He returned some time later and was joined by two women acquaintances while he was eating a steak dinner. After dinner, Acosta prevented the two women from leaving by threatening them with a .357 magnum handgun. The defendant then tried to get his girlfriend, who was behind the bar at Larry K’s, to come out. The girlfriend and the victim, who was also behind the bar, tried to reason with Acosta to get him to put away the gun. Instead, the accused pointed the gun in their faces. For reasons not fully explained, Acosta became incensed, and placed the gun to the left side of the victim and deliberately fired the weapon. Ms. Quebedeaux was critically wounded. A gun battle then ensued between Acosta and several peace officers. No other person appears to have been wounded. The shooting ceased only when the defendant surrendered to the police. The ballistics report definitely established that Acosta’s weapon was the one used to shoot Ms. Quebedeaux.

The defendant urges that the trial court erred when it imposed an excessive sentence.

The maximum sentence which can be imposed for the crime of attempted first degree murder is imprisonment at hard labor for not more than fifty years. LSA-R.S. 14:27 D(l). The penalty actually imposed by the trial court was twenty-five years, or one-half of the maximum assessable penalty-

The trial judge has wide discretion, though not unbridled, in the imposition of a sentence within statutory limits, State v. Sepulvado, 367 So.2d 762 (La.1979); and given compliance with the sentencing criteria of LSA-C.Cr.P. art. 894.1, the sentence will not be set aside in the absence of manifest abuse of discretion. State v. Washington, 414 So.2d 313 (La.1982); State v. Fleming, 428 So.2d 947 (La.App. 1st Cir.1983).

Article 1, Sec. 20 of the Louisiana Constitution of 1974 prohibits the imposition of excessive punishment.

A sentence will be determined to be excessive if it is grossly disproportionate to the crime, or nothing more than the needless imposition of pain and suffering. State v. Guiden, 399 So.2d 194 (La.1981); State v. Bonanno, 384 So.2d 355 (La.1980). The determination turns upon the punishment and the crime in light of the harm to society and whether the penalty is so disproportionate that it shocks our sense of justice. State v. Pearson, 425 So.2d 704 (La.1982).

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

A review of the record in the case reveals that the trial judge carefully particularized the sentence, considering each and every mitigating and aggravating factor as set out in LSA-C.Cr.P. art. 894.1 with respect to Acosta. The judge noted that the defendant was 24 years of age; he pled guilty to the offense; and the defendant had no previous criminal background. The judge noted the conduct of the defendant which threatened serious harm and which created a highly dangerous situation, placing the lives of innocent persons in jeopardy. The victim in no way induced or facilitated the commission of the offense. The court considered that the defendant’s conduct was such that the same or similar circumstances of violence were likely to recur. There was no showing of remorse for the harm done his victim. It was in this context that the trial judge concluded that there was an undue risk that during a suspended, probated or lesser sentence the defendant would commit another crime; that the defendant was in need of correctional attention, treatment and supervision; and that a lesser sentence would diminish the seriousness of the crime. Further, as stated, the trial judge discussed the mitigating factors which were taken into consideration in fixing the sentence. In summation, the record shows the trial judge’s articulation of reasons for sentence are more than adequate to meet the statutory criteria.

The sentence imposed is well within the statutorily defined range, and does not appear grossly disproportionate to the severity of the crime and does not appear to be imposed merely for the purposeless and needless imposition of pain and suffering. State v. Brown, 412 So.2d 998 (La.1982). Consequently, this assignment is without merit.

We affirm the sentence.

AFFIRMED.

      . Acosta pled not guilty at first. He then withdrew that plea and pled not guilty and not guilty by reason of insanity. On the scheduled trial date, defendant withdrew his pleas and pled guilty as charged. After Boykinization, the trial court ruled Acosta had knowingly and intelligently waived his rights and the guilty plea was accepted.


author: REDMANN, Chief Judge.

text:
    Aynaud M. HEBERT, M.D. v. Patricia McGUIRE and Dominick McGuire.
    No. CA-1046.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Carl J. Schumacher, Jr., C. David Schu-macher, New Orleans, for plaintiff.
    Before REDMANN, C.J., and BARRY and WILLIAMS, JJ.
   REDMANN, Chief Judge.

A patient’s defense to her doctor’s suit for a $900 fee for surgery is that the doctor’s branch office caused the loss of insurance benefits by (a) failing to file her insurance claim as the office had agreed to do and (b) failing to notify her that her bill remained outstanding until after it was too late for the patient (or her husband) to collect from the insurer. The doctor appeals from the dismissal on the merits of his suit against the patient and her husband.

An unpublished appendix affords a fuller factual discussion for the benefit of the parties. The trial judge could reasonably have concluded that defendants proved the factual basis of their defense.

Plaintiff argues that the trial judge incorrectly applied estoppel, a doctrine “not favored” in Louisiana, Wilkinson v. Wilkinson, 323 So.2d 120 (La.1975).

This may not be a simple estoppel. If plaintiff’s Jean Lafitte office employee agreed before the surgery to take care of the insurance claim, it is arguable that the promise was part of an enforceable contract, made by an ostensibly authorized agent. If the promise had come after the debt for surgery was incurred, it would be a clearer case of a gratuitous promise, as to which estoppel (or the civil law doctrine against contravening one’s own acts) would, however, reasonably apply; see Sanders v. United Distributors, Inc., 405 So.2d 536 (La.App. 4 Cir.1981), writ refused 410 So.2d 1130.

In either case, the trial judge was not manifestly erroneous in concluding that plaintiff’s breach of the promise by plaintiff’s employee to take care of the insurance claim caused defendant to suffer the loss of the insurance benefits. But defendants only lost the benefits that his contract would have paid, and defendant’s proof is only that the benefits were at least 80% without any showing of the circumstances that would afford 100% coverage. The defense therefore defeats only 80% of the claim, and defendants are liable for the other 20%, or $180 (less a $25 credit).

Reversed in part; judgment for Aynaud M. Hebert, M.D. against Patricia and Dominick McGuire for $155 plus interest from judicial demand as prayed; each side to bear half of all costs.


text:
    CITY OF NEW ORLEANS v. Mr. & Mrs. Judel KIRZNER.
    No. CA-1896.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Karen Milner, Asst. City Atty., New Orleans, for plaintiff.
    Joel P. Loeffelholz, New Orleans, for defendants.
    Before REDMANN, C.J., and GARRISON and WILLIAMS, JJ.
   REDMANN, Chief Judge.

We deny our own motion to dismiss this appeal from a judgment not signed until six days after the motion for appeal. (C.C.P. 1911 allows appeal only from a signed judgment.) The matter is controlled by In the Matter of Parker, 399 So.2d 607 (La.1981), reversing the First Circuit, 395 So.2d 373.

The First Circuit distinguishes Parker in Painter v. Continental Union Assur. Co., 407 So.2d 500 (La.App. 1 Cir.1981), and in Brown v. Brown, 421 So.2d 952 (La.App. 1 Cir.1982), on the basis that Parker contained written “reasons for judgment” that might have been interpreted as a judgment.

We disagree with that distinction because the Louisiana supreme court has often held that a judgment’s not being signed at the time the appeal is taken does not warrant dismissal of the appeal if, by the time the appeal is lodged, the signed judgment is present in the record. The most recent of these decisions is Palmer v. Wren, 361 So.2d 1206 (La.1978) (also reversing the First Circuit), declaring that “Nomey v. St. Department of Highway, La.App. [2 Cir.1976], 325 So.2d 732, ... has correctly decided this issue.” Seven earlier such decisions by the supreme court are listed in Richards v. Gettys, 329 So.2d 475 (La.App. 4 Cir.1976). For a fuller exposition see Reed v. Superior Motors, 415 So.2d 219 (La.App. 2 Cir.1982), which is consistent with this court’s and the supreme court’s earlier decisions and which, if Parker be distinguishable, we follow.

Motion denied.


author: GULOTTA, Judge.

text:
    Joan Martin KOPERA v. Anthony Peter KOPERA.
    No. CA-1262.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Joan B. Montero, Metairie, for appellee.
    Clydia Davenport, New Orleans, for appellant.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   GULOTTA, Judge.

Defendant-husband appeals from a judgment granting his wife a separation from bed and board based on cruel treatment. We affirm.

According to the husband, the trial court erred in: 1) granting a separation judgment in the wife’s favor without finding fault on his part and in failing to specify the particular grounds for the separation; 2) finding the wife’s “uncorroborated” testimony sufficient to support the judgment; and 3) admitting or excluding certain evidence.

GROUNDS FOR SEPARATION

The wife sued for a separation based on cruel treatment, and the husband reconvened for separation in his favor on the same grounds. After trial on the fault issue, the trial judge, in oral reasons, found the wife “to be frée of substantial fault”, and dismissed the husband’s reconventional demand. A judgment of separation in favor of the wife was rendered.

We reject the husband’s contention that the trial judge denied him due process by failing to find either party at fault and to state the particular grounds for the judgment of separation.

It is clear from the pleadings and the transcript that cruel treatment was at issue in this separation suit and was the sole basis for the judgment in favor of the wife. Evidence on this fault issue consisted of conflicting testimony of the spouses’ ill treatment of each other by verbal and physical abuse, failure to communicate, and other acts of hostility. Under these circumstances, the husband’s argument that the judgment fails to specify the grounds for granting the separation simply ignores the obvious posture of the entire litigation.

Although there was some testimony concerning the wife’s discovery of the husband with another woman under suspicious circumstances, it is clear from the petition and the entire context of the trial that this evidence was not adduced as proof of the husband’s adultery, per se, but as a circumstance leading to the spouses’ last altercation.

Similarly, we find no error in the wording of the trial judge’s comments at the end of the trial. In finding the wife “free of substantial fault” and dismissing the husband’s reconventional demand, the judge implicitly concluded that the husband had been solely at fault for the breakup of the marriage. To interpret the judge’s comments as a finding of mutual fault or as an exoneration of the husband would distort the obvious intent of the judgment in favor of the wife and the dismissal of the husband’s reconventional demand. Accordingly, we find no error.

SUFFICIENCY OF EVIDENCE

The husband further argues that the wife’s testimony of his physical or emotional mistreatment of her was uncorroborated.

In addition to testifying that her husband had repeatedly stated he did not want to be married, had asked her to leave the marital domicile, and had failed to communicate and confide in her, the wife related that she had suffered two physical beatings by her husband.

Mrs. Kopera’s testimony concerning a beating in February, 1980, was corroborated by her father to the extent that he observed bruises on her arm. Other supporting evidence is a February 25, 1982, hospital record indicating multiple contusions and a history of beating by the husband on the previous day.

Mrs. Ropera further related an incident in the early morning hours of May 19, 1982, when she found her husband with another woman in the downstairs apartment of their marital home. According to the wife, her husband thereafter became angry and beat her, inflicting bruises on her eye, arm, and back.

The wife’s father further testified that his daughter had telephoned in a “panic” in the early morning hours of May 19. Upon arriving at the marital home shortly afterward, he found the husband to be “incoherent” and having a “difficult time keeping his composure.” Although this witness had never seen his daughter physically abused by the husband, he related that she was “very upset” by the incident.

On the other hand, the husband denied physically abusing his wife. Ropera testified that the bruises on his wife’s arms in February, 1982 resulted from his attempts to hold her down while she was “wildly swinging her arms ... the whole time screaming and ranting.” He further testified that her bruises from the May, 1982 incident were caused by her “fainting and falling to the kitchen floor”. He characterized the wife’s testimony as a “fabrication”, and related instances of her mental and physical cruelty inflicted on him.

The evidence considered, we find no merit to the argument that the wife’s “uncorroborated” testimony of the physical beatings is insufficient to satisfy her burden of proof. The trial judge made a credibility determination, and we find no error.

The instant case is akin to Durapau v. Durapau, 338 So.2d 957 (La.App. 4th Cir.1976), where we were confronted with an identical argument on similar facts. We held that a wife’s testimony of a beating by her husband was corroborated by photographs showing bruises on her face and by testimony of other witnesses concerning her physical appearance and emotional upset after the incident, even though no one had actually eyewitnessed the argument between the spouses.

EVIDENTIARY RULINGS

The husband initially complains the trial court erred in excluding evidence of marital problems pre-dating his last reconciliation with his wife in November, 1981, after her first suit for separation. Citing LSA-C.C. Art. 153, he specifically contends that he was entitled to introduce pre-reconciliation letters of apology by the wife for marital difficulties as evidence of a “pattern in the wife’s disturbing behavior and conduct”. We disagree.

Copies of the letters have been included in the record on appeal. Upon examination, we find them to be of little, if any, probative value. The wife’s words of apology, written at the husband’s request as a condition of the reconciliation, were simply a futile attempt to mollify him and give the relationship another chance. Because this evidence has no true relevance to the post-reconciliation fault issue, we find no error in its exclusion.

We likewise reject the husband’s argument that the trial judge allowed uncorroborated evidence implying an adulterous act. The testimony of the husband's presence with another woman was adduced not to prove adultery on his part, but only as a factual circumstance surrounding the Rop-eras’ final altercation in May, 1982. As such, it was relevant evidence and properly admitted.

We further find no merit to the contention that the testimony of plaintiffs father was rife with hearsay and irrelevant comments. The trial judge properly allowed this witness to testify concerning the presence of bruises on his daughter in February, 1982, and the circumstances surrounding the May, 1982 altercation.

We do find persuasive, however, the husband’s contention that the deposition of the wife’s treating physician should not have been admitted in lieu of testimony at trial. The husband’s attorney had not received specific notice of the wife’s intention to depose this witness to perpetuate his testimony, and did not attend the deposition. Absent the husband’s meaningful cross-examination of the deponent, his deposition was inadmissible.

Nonetheless, because the deposed physician merely related the presence of bruises on the wife and her history of the May 19 beating by her husband, the evidence contained in the deposition is merely cumulative and of no probative value. Under these circumstances, any error in its admission is a harmless one not constituting grounds for reversing the judgment.

Accordingly, the judgment is affirmed.

AFFIRMED.

      . LSA-C.C. Arts. 152 and 153 provide as follows:
      Art. 152. Reconciliation after separation. "The action of separation shall be extinguished by the reconciliation of the parties, either after the facts which might have given ground to such action, or after the action has been commenced.”
      Art. 153. Causes arising after reconciliation. "In either case the plaintiff shall be precluded from bringing his action; but he shall be at liberty to bring a new suit for causes arising since the reconciliation, and therein make use of the former motives to corroborate his new action.”


text:
    Pasquelina Sabino, wife of William I. FOX v. LOUISIANA STATE RACING COMMISSION.
    No. CA-1320.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Kenneth J. Berke, New Orleans, for appellants.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, John E. Jackson, Jr., Asst. Atty. Gen. and Atty. for the La. St. Racing Com’n, New Orleans, for appellee.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   GULOTTA, Judge.

Plaintiff, a horse owner separate in property from her husband, appeals from a judgment affirming a decision of the Louisiana State Racing Commission that prohibits her from separately entering her horse in the same race in which her husband has entered a horse owned by him. According to the Commission, a conflict of interest, or possibility thereof, is created when a husband and wife have horses competing in the same race.

Appealing, plaintiff claims that there is no conflict of interest since she and her husband are judicially separate in property through a marital agreement, and the horses entered by each are owned separately. Moreover, according to plaintiff, because there are adequate statutory safeguards to protect against corrupt practices, it is unnecessary to deprive married owners from entering separate entries in the same race. Plaintiff further contends that the Commission’s restriction discriminates against married persons and abridges their fundamental equal protection rights guaranteed by our federal and state constitutions.

In written reasons affirming the Commission’s decision the trial judge stated, in part:

“The public must have confidence in the integrity of the officials that regulate this industry.
Public confidence would be eroded if married couples ... were permitted to separately enter a horse in a race and compete against each other and the rest of the field. Racing officials must act to avoid impropriety and also the appearance of impropriety in scheduling races....’’

We are in agreement with the trial judge. Accordingly, we affirm.

LSA-R.S. 4:141 et seq. place upon the Louisiana State Racing Commission the responsibility for the conduct of racing in this State. In this connection, LSA-R.S. 4:172(A) empowers the Stewards with the general “supervision of the daily conduct of racing” and provides them with the “authority to investigate, inspect, search and inquire into all matters under their supervision”. See Imparato v. Louisiana State Racing Commission, 433 So.2d 398 (La.App. 4th Cir.1983).

Despite plaintiff’s claim that sufficient statutory safeguards exist to prevent corrupt practices, it is clearly the responsibility of the Stewards and the Commission to take those actions necessary to avoid a conflict of interest or the appearance of a conflict of interest. We canot say their action was unreasonable when considering the very nature of horse racing and the absolute necessity of protecting the integrity of that sport.

Furthermore, for these same reasons, we do not conclude that the restriction complained of in this case is a discriminatory abridgement violative of the fundamental equal protection rights guaranteed by the federal and state constitutions. Under these guarantees, where fundamental rights are involved, separate classifications are valid when there exists a “compelling governmental interest.” Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969); Everett v. Goldman, 359 So.2d 1256 (La.1978); Acorn v. City of New Orleans, 377 So.2d 1206 (La.1979); Mixon v. New Orleans Police Department, 407 So.2d 793 (La.App. 4th Cir.1981). Where no fundamental right exists, however, equal protection is not abridged where the classification reasonably furthers a valid state or governmental purpose and demonstrates some rational relationship to a legitimate state purpose. Weber v. Aetna Casualty & Surety Company, 406 U.S. 164, 172, 92 S.Ct. 1400, 1405, 31 L.Ed.2d 768 (1972); Acorn v. City of New Orleans, supra; Borne v. Mike Persia Chevrolet Co., Inc., 396 So.2d 326 (La.App. 4th Cir.1981), writ denied 401 So.2d 976 (La.1981); Martin v. La Stadium & Exposition Dist., 349 So.2d 349 (La.App. 4th Cir.1977); Flynn v. Devore, 373 So.2d 580 (La.App. 3rd Cir.1979).

In the instant case, we find no abridgement of a fundamental right. Clearly, the right to contract marriage carries restrictions necessarily resulting from that relationship. Clear also is the obvious necessity to closely safeguard and protect the integrity and honesty of racing.

Considering that valid State interests are involved, we cannot say that the actions of the Stewards and the Commission were unreasonable or bore no rational relationship to a legitimate State purpose. Quite to the contrary, if the Stewards had not imposed the prohibition complained of, public confidence would have been eroded. Accordingly, we find no violation of the equal protection doctrine. See La. Div. of Horsemen’s v. La. State Racing Com’n, 391 So.2d 589 (La.App. 4th Cir.1980).

Having so concluded, we affirm the judgment of the trial court.

AFFIRMED.

      . There is no prohibition against a husband and wife entering two horses as a "double entry”.


author: SCHOTT, Judge.

text:
    Thomas J. BENNETT, Jr. Individually and as Administrator of the Estate of His Minor Son, Ted G. Bennett, and Ted G. Bennett v. Russell TUSA and State Farm Casualty Company.
    No. CA 1303.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Bruce G. Reed, Reed & Reed, New Orleans, Richard A. Tonry, Tonry & Brodtmann, Chalmette, for plaintiffs-appellants.
    Kevin L. Cole, Hailey, McNamara, Hall, Larmann & Papale, Metairie, for defendants-appellees.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   SCHOTT, Judge.

This is a suit for personal injuries sustained by plaintiff’s ten year old son, Ted, when he was bitten by defendant’s German Shepherd. A jury returned a verdict in favor of plaintiff, awarding $5,673.00 in special damages and $2,000.00 in general damages. Plaintiff appealed, seeking an increase in the award for general damages only.

The incident occurred on August 25, 1980, as Ted approached the home of his playmate, defendant’s son. As Ted neared the gate to the yard where the dog was housed, he was bitten once on the right forearm. Immediately after the incident, Ted was taken to Chalmette General Hospital where the wound was cleaned and sutured. The following day, Ted’s pediatrician administered a penicillin injection and also prescribed oral penicillin.

One week later, Ted returned to the pediatrician with an infection in the wound. He was immediately taken to Methodist Hospital where Dr. Ruel, an orthopedic surgeon, aspirated pus from the wound. The next day, surgery was performed consisting of debridement and irrigation of the wound with antibiotics. Ted remained in the hospital for six days, at all times receiving intravenous dosages of antibiotics.

Three days after being discharged from the hospital the wound was inspected by Dr. Ruel and said to be healing well. On October 28, 1980, Dr. Ruel found that the wound had completely healed, Ted had good functional activity, and his nerves were intact. He told Ted to return in six months if problems developed, but he never returned. At trial in January, 1983, Dr. Ruel observed that there was an indented scar resulting from the loss of fat beneath the skin but said there was no functional or anatomical disability as a result of the injury-

By stipulation, a report from Dr. Randolph M. Howes, a plastic surgeon, to plaintiff’s attorney, was placed in evidence. He saw Ted on August 21, 1981, and described the scar as measuring approximately four centimeters by 1.2 centimeters, with a tooth mark one centimeter in diameter. He said the scar can be made less noticeable by plastic surgery performed in three surgical stages and the only permanent residual effect likely to be suffered by Ted would be numbness in the area of the scar because of cutaneous nerve damage. Dr. Howes also described the scar as a “depressed hyperpigmented unsightly thickened scar,” but this description must be considered in the light of the fact that the jury saw the scar and made its own evaluation of the scar’s appearance in concluding that $2,000 was the appropriate award.

In reviewing quantum, we are guided by the often repeated standard enunciated in Reck v. Stevens, 373 So.2d 498 (La.1979):

Before a trial court award may be questioned as inadequate or excessive, the reviewing court must look first, not to prior awards, but to the individual circumstances of the present case. Only after analysis of the facts and circumstances peculiar to this ease and this individual may a reviewing court determine that the award is excessive.”

In this case the award is being challenged as inadequate. The jury apparently felt that because Ted’s injury was completely healed within two months of the date sustained, and because the only residual effects of the injury are a relatively small scar on the forearm of a young boy, a scar that can be improved with plastic surgery, and numbness in the immediate area of the scar, $2,000 was an appropriate award. Although the award may be argued as being too low, we cannot conclude it is so low as to constitute an abuse of the jury’s much discretion.

AFFIRMED.

      . The estimated cost of the plastic surgery, $2,000, was included in the special damage award.


text:
    Felicia L. FUKSMAN, Roslyn F. Morris, Roslyn F. Beth Hellman, Abbie E. Fuksman, and Fox Furniture Store, Inc. v. GENERAL MOTORS CORPORATION, the City of New Orleans, and Mossy Motors, Inc.
    No. CA 1203.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Writ Denied May 4, 1984.
    . A. Remy Fransen, Jr., Wiedemann & Fransen, New Orleans, for Plaintiff-Appellant, Fox Furniture Store, Inc.
    Walter M. Babst, B. Frank Davis, Bernard, Cassisa, Babst & Saporito, Metairie, for defendants-appellees; Douglas E. Brown, General Motors Corp., Detroit, Mich., of counsel.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ. .
   SCHOTT, Judge.

In a joint petition with the widow and children of Max Fuksman who seek damages for his wrongful death, Fox Furniture Store, Inc., a corporation, sought damages for the loss or diminution of its value resulting from the loss of its owner and operator, Fuksman. Defendants, General Motors Corporation and Mossy Motors, Inc., responded with an exception of no cause of action as to Fox’s claim. The trial judge sustained the exception and Fox has appealed. We affirm.

We follow Baughman Surgical Assoc., Ltd. v. Aetna Cas. & Sur. Co., 302 So.2d 316 (La.App. 1st Cir.1974) where the court was confronted with an almost identical situation and concluded after reviewing the jurisprudence that such damages are too remote, speculative and evasive to prove; they are not consequential and are not within the purview of LSA C.C. Art. 2315. Interestingly, this approach seems to be uniform throughout the country. See Zawadyki v. Checker Taxi Co., 539 F.Supp. 207 (N.D.Ill.1982).

Appellant’s principal argument flows from Afeman v. Insurance Company of North America, 307 So.2d 399 (La.App. 4th Cir.1975). In this case plaintiff, who was the president of and owned ninety per cent of the stock in a corporation, was attempting to measure his loss of personal income by establishing the corporation’s losses. This method of proof was disallowed by the court. Appellant argues that the combined effect of Afeman and the action of the trial court (as in Baughman) is to leave the injured parties without any remedy.

The narrow question before us at this time is whether the corporation has a cause of action for Fuksman’s death, the answer to which is clearly negative. While we are not here concerned with the claim of the widow who is seeking loss of support it seems that her full recovery can be had under the broad umbrella of loss of earning capacity developed in Folse v. Fakouri, 371 So.2d 1120 (La.1979).

AFFIRMED.


text:
    Mr. & Mrs. Francis N. DENTON v. C.S. MAMMELLI, XYZ Surety and Bonding Company and ABC Architect.
    No. CA 1259.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Harold J. Wheeler, DiRosa & Wheeler, New Orleans, for defendants-appellants.
    David W. Oestreicher, II, Oestreicher, Whalen & Hackett, New Orleans, for plaintiffs-appellees.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   SCHOTT, Judge.

This is an action by home owners, Mr. and Mrs. Francis N. Denton, against a building contractor, C.S. Mammelli, for damages for breach of a contract for the construction of the home. From a judgment in favor of plaintiffs for $5,000 defendant has appealed. Plaintiffs have neither appealed nor answered defendant’s appeal. In general defendant contends that plaintiffs failed to carry their burden of proof, and, in particular, he contends that the trial court erred in accepting the opinions of plaintiffs’ expert witness over those of experts he offered.

The parties entered into a building contract for the construction of a single residence in New Orleans in 1972. In 1978 plaintiff began to discover cracks in the slab and bricks and other defects in the house, and, after calling on defendant to correct the problems and getting no satisfaction, they filed suit in 1980 alleging that defendant failed to perform the contract in a workmanlike manner. The major area of deterioration was in the garage area of the house. Plaintiff contacted Amy Ebrahim, a civil engineer, who inspected the house in June, 1980, and May, 1982, and concluded that the wire mesh had been improperly placed in the garage section of the slab causing the cracks in the slab and bricks in this area of the house. He recommended that the slab in this area be demolished and rebuilt properly and he estimated that the cost of this work along with some necessary incidentals would be $5,000.

To counter Ebrahim’s testimony defendant offered two experts, Tom Carter, a contractor with thirty years of experience in building houses; and Frank Chivleatto, the manager of a concrete company with twelve years experience in the business. Carter testified that the problems in the house were not structural but his opinion was based only on photographs of cracks in the house. He never inspected the house and never conducted any study of the slab’s integrity. Chivleatto was not permitted by the court to answer whether or not the defects were structural but his opinion that they were not was proffered by defendant.

In written reasons for judgment the trial judge stated:

“This Court is convinced that it is more probable than not that the defendant, C.S. Mammelli, in his capacity as ‘Contractor’ failed to furnish plans and specifications which would guarantee the integrity of the slab of the garage. If not, he failed to follow the plans and specifications. In either event his failure is a breach of his duty to perform in a ‘workmanlike manner’ the contract he made with plaintiffs. Plaintiffs have proved this aspect of their claim to the satisfaction of this Court.
⅝ 5⅜ £ ⅜ ⅜!
“When this Court weighs the ‘expertise’ of the two (2) witnesses presented by defendant as opposed to the expert witness presented by plaintiff, this Court finds defendant’s witnesses deficient for purposes of this lawsuit and the pertinent issues presented herein. The Court would hasten to add that for purposes irrelevant to this cause, these two witnesses are well qualified as ‘experts’ in the fields for which their expertise is evident.”

There is no question about the qualifications of Ebrahim as an expert in civil and structural engineering. His ability to form an opinion as to the nature and reason for the slab’s failure was supported academically and empirically. However, defendant contends that the trial court erred in failing to recognize his witnesses as experts and to accept their opinions over Ebrahim’s.

Carter was not a civil engineer and had no training or experience in structural engineering. He did have a long and impressive record as a contractor. The court specifically accepted him as an expert contractor but declined to accept him as an expert with respect to structural defects involving engineering. Even so, he was permitted to testify that the defects were not structural, but the trial court gave no weight to this testimony.

As to Chivleatto, his work was primarily concerned with quality control of cement products. He did not pretend to be an expert in civil or structural engineering, but he did inspect the house, and he opined that the cracks in the slab were due to soil subsidence. He also stated that the cracks were not due to structural failure but the trial court did not consider this opinion as evidence.

The trial court is vested with wide discretion in determining the competency and qualification of an expert witness. Ashley v. Nissan Motor Corp. in U.S.A., 321 So.2d 868 (La.App. 1st Cir.1975) writ refused 323 So.2d 478; Bonilla v. Arrow Food Distributors, Inc., 202 So.2d 438 (La. App. 4th Cir.1967). Defendant’s argument that the trial judge abused such discretion in this case is not supported by the record. Ebrahim, the civil and structural engineer, testified that the problem was structural. In his sound discretion the trial judge would not consider this opinion refuted by statements that the problem was not structural by Carter and Chivleatto when neither of these men even claimed to be structural experts.

They were permitted to express their opinions as to some explanation other than structural but the trial court in weighing these opinions against Ebrahim’s decided the case based on the latter. Once again, the record supports this conclusion. As to Carter, while he had an impressive record as a contractor, he simply stated that the hairline cracks he saw in the photographs were due to mortar problems, but he never physically inspected the house. Under these circumstances we are not persuaded that Carter’s opinion is necessarily entitled to greater weight than Ebrahim. As to Chivleatto he did not offer an opinion in his field of expertise. Asked for the cause of the cracking he did not offer to explain it on the basis of an improper mix of concrete or a pouring of the slab at an improper temperature or any explanation which he as a cement quality control expert could provide. Instead, he simply blamed the problem on soil subsidence which would not necessarily excuse the slab’s failure in any event. On the contrary, the slab had to be designed and constructed to deal with a certain amount of soil subsidence.

Defendant cannot prevail on the basis of Laroque v. Hines, 250 So.2d 465 (La.App. 4th Cir.1971) and Maddox v. Percy, 351 So.2d 1249 (La.App. 1st Cir.1977). In the Laroque case, the expert opinion of an experienced contractor like Carter was received for the purpose of listing numerous defects in a construction job, providing a list of corrections to be made, and estimating the cost of corrections. This is no authority to require that Carter be accepted as an expert in structural engineering. In Maddox, the court was concerned with weighing opinions of two experts in the same field. Here only Ebrahim was qualified in the field which the court considered appropriate.

As to the issue of damages, the only estimate presented to the court was Ebra-him’s. The record provides no basis to question the award as an abuse of the trial court’s discretion.

Furthermore, the trial court apparently rejected defendant’s suggestion that nearby highway construction work caused the damage. We cannot say that this conclusion was manifestly erroneous.

Accordingly, the judgment is affirmed.

AFFIRMED.


text:
    Anthony J. GERACI v. SOUTHERN SCRAP MATERIAL COMPANY, LTD.
    No. CA 1323.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Emile L. Turner, Jr., Turner, Young & Hebbler, New Orleans, for defendant-appellant, Hertz Corp.
    Jack C. Benjamin Kierr, Gainsburgh, Benjamin, Fallon & Lewis, New Orleans, for plaintiff-appellee.
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   SCHOTT, Judge.

This case is an appeal following a remand from this court in Geraci v. Southern Scrap Material Co., Ltd., 425 So.2d 916 (La.App. 4th Cir.1983). In that case we affirmed the trial court judgment on the main demand awarding plaintiff $17,500 in damages resulting from the April 11, 1977, rear-end collision of his truck by a tractor-trailer driven by an employee of Southern Scrap Material Co., Ltd. The portion of the original trial court judgment dismissing the third party demand of the Hertz Corporation, insurer of the tractor and driver, against North-West Insurance Company, insurer of the trailer, was reversed and remanded to determine whether Hertz’s policy of self-insurance contained a proration clause. The sole issue in this appeal is whether the trial court properly dismissed Hertz’s third party demand for contribution.

In regard to the third party demand at issue, our original opinion in this matter was principally concerned with Hertz’s right to receive contribution from NorthWest considering the provisions of the Hertz rental agreement and the NorthWest insurance policy. Although we concluded that Hertz and North-West became co-primary insurers once the tractor and trailer were joined as a unit, relying on Aetna Cas. & Sur. Co. v. Hertz Corp., 366 So.2d 1362 (La.1978), we remanded the case to determine whether the “specimen copy of a Basic Automobile Liability Policy” referred to in the Hertz rental agreement contained a proration clause. Presumably, this clause would have allowed the court to determine what amount of contribution Hertz was entitled to receive.

At the hearing on remand Hertz was unable to produce the specimen copy referred to in the rental agreement. Instead, Hertz offered the testimony of Louis Jordan, an executive secretary with the Louisiana Insurance Commissioner’s Office, to the effect that the Commissioner’s Office does have an approved standard Basic Automobile Liability and Physical Damage form which could have been applicable to the tractor-trailer as of 1977 and which contains a proration clause. Hertz contends that since they are a qualified self-insurer subject to the jurisdiction of the Department of Public Safety, they relied upon the Insurance Commissioner’s Office to supply a basic automobile liability policy conforming to Louisiana law. More specifically, Hertz argues that since Mr. Jordan testified that the approved state insurance form contains a proration clause and that no company in the last six years has submitted a policy which did not contain such a clause, the basic automobile liability policy referred to in the Hertz rental agreement must also contain a proration clause.

We must initially refer to the language of the Hertz rental agreement which provides in pertinent part:

“Lessor provides liability coverage for customer and any authorized operator ... in accordance with the standard provisions of a Basic Automobile Liability Policy under a policy of insurance or as a qualified self-insurer against liability arising from use of the vehicle with limits as follows [limits were stated] ... A specimen copy of a Basic Automobile Liability Policy is. available for inspection at the main office of lessor.” (Emphasis added)

In the language of the aboye'agreement, Hertz acknowledges the existence of a specimen copy of their insurance policy. Additionally, Hertz’s own witness testified that although Hertz, a self-insurer, would not be required to file a copy of their policy with the Insurance Commissioner’s Office, such a document would have to be filed with the Department of Public Safety. Despite this evidence, Hertz failed to produce a copy of their insurance policy.

Since Hertz is contending that their policy contained certain provisions material to this claim for proration, they are required to produce the original policy, or if unavailable, a reliable and accurate copy thereof. Fidelity National Bank v. Jack Neilson, Inc., 248 So.2d 412 (La.App. 4th Cir.1971). The approved policy which the Commissioner’s Office suggests a company should use cannot speak for what may have been contained in the Hertz policy.

Even assuming arguendo that Hertz was entitled to rely on the State to provide the contents and terms of their self-insurance, the testimony of Jordan revealed that the proration clause contained in the standard Louisiana form was an optional clause which may or may not have been included in the Hertz policy. Although Jordan’s testimony revealed that for the last six years no company had submitted a policy for approval of the Insurance Commissioner which excluded a proration clause, Jordan also remarked that no one had jurisdiction over a self-insured except the Department of Public Safety.

A review of the statutory law in this area reveals that Jordan’s testimony is correct. Under the Motor Vehicle Safety Responsibility Law, the Commissioner of the Department of Public Safety of Louisiana has the authority to issue a certificate of self-insurance. LSA-R.S. 32:851, et seq. R.S. 32:897(4) states that whenever proof of financial responsibility is required, such may be given by filing:

“A certificate of self-insurance, as provided in R.S. 1042, supplemented by an agreement by the self-insurer that with respect to accidents occurring while the certificate is in force, he will pay the same judgments and in the same amounts that an insurer would have been obliged under an owner’s motor vehicle liability policy if it had been issued such a policy to said self-insurer.” (Emphasis added)

LSA-R.S. 32:900 defines a “Motor Vehicle Liability Policy” and states what terms are to be included in such a policy. Subsection I of this statute provides that “Any motor liability policy may provide for the prorating of the insurance thereunder with other valid and collectible insurance.” (Emphasis added) Clearly, the use of the word “may” denotes the optional nature of a proration clause in a motor vehicle liability policy. Thus, even if the terms of LSA-R.S. 32:900 were applicable to Hertz as a self-insured, we could not enforce the pro-ration provision.

Accordingly, we hold that Hertz Corporation is not entitled to proration in their claim for contribution. However, Hertz is entitled to whatever contribution it can claim from North-West as an insólido debt- or under LSA C.C. Art. 2103. See Shaw v. New York Fire and Marine Underwriters, Inc., 252 La. 653, 212 So.2d 416 (1968).

Accordingly, the judgment dismissing the third party demand is reversed and set aside, and there is judgment in favor of Hertz Corporation and against North-West Insurance Company for fifty (50%) percent of the amount owed to plaintiff under the judgment on the main demand.

REVERSED AND RENDERED.


author: KLEES, Judge.

text:
    ADAM, INC. v. DIVIDEND, INC.
    No. CA-1124.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Steeg & O’Conner, Edwin O. Schlesinger, New Orleans, for plaintiff-appellant Adam, Inc.
    Warren M. Simon, Jr., Metairie, for defendant-appellee Dividend, Inc.

      Before SCHOTT, KLEES and CIACCIO, JJ.
   KLEES, Judge.

This appeal is from the dismissal of an eviction rule brought by the plaintiff, Adam, Inc. Adam sought to evict its lessee, Dividend, Inc., for non-payment of monthly rentals due under a lease agreement. The trial court found that the provision in the lease concerning written notice of default was inapplicable and that tender of payment was timely and cured any default. The plaintiff appeals these findings. The issues presented on appeal are whether the defendant was given written notice of default under the terms of the lease and whether payment within the time period for curing the default is actual payment when the check is subsequently returned “NSF” to the lessor.

The premises are located at 740 Gravier Street in New Orleans. The plaintiff is the owner of these premises having purchased them from the original lessor, Mutual Savings Life Insurance Co. in December of 1981. The original lease, of which the defendant is the assignee, was between Mutual Savings Life Insurance Co., as lessor, and 740 Gravier Corporation, as lessee. The lease was dated February 15, 1979 and subsequently assigned to Dividend, Inc. on November 19, 1979.

Dividend, Inc. operates a restaurant and bar on the premises. Rental payments were current up until March of 1982 at which time there arose a dispute as to who would pay for repairs to and replacement of the building’s air conditioning system. Lessee thought that the repairs were structural in nature and therefore the costs under the terms of the lease should be borne by the lessor. The lessor however disagreed and told the lessee that it did not regard the work as structural and would not pay for the repairs done.

On April 13, 1982, Chester A. Hingle,'Jr., who at the time was the lessor’s local agent, wrote Dividend, Inc. advising them that their rent for April was past due and they were in default under the lease. On June 1, 1982, Dividend, Inc. tendered a rental check to the lessor which was applied to the overdue April rent. On June 2, 1982, Arnold Partesotti, who replaced Mr. Hingle, wrote Dividend, Inc. advising them that the rent for May and June was past due and demanded payment. Lessee issued and tendered another check on June 30,1982 which was applied to the May rent. On July 31, 1982 the lessee issued and tendered to the lessor another check for the June rent. This check was deposited in the usual course of business on or about August 10, 1982. Mr. Partesotti wrote the lessee on August 5, 1982 concerning the overdue rent for the months of July and August and advised them that unless the rent was paid Adam, Inc. would begin eviction proceedings.

On or about August 17, 1982, the lessor received the lessee’s check of July 31 from the bank marked “NSF”. The lessee subsequently issued and tendered to the lessor a check for the June rent on September 1, 1982. The lessor refused to accept this check and a subsequent check issued on October 1, 1982 which was to cover payment of the rentals for July, August, September and October. Lessee was given notice to vacate the premises in a letter dated October 11, 1982 within 7 days from receipt of the letter. On October 13, lessee attempted to retender the October 1 check but it was again refused. Lessor then filed a Rule to Evict.

The lease between the parties contains a clause governing non-payment of rent or any other default. It says in Section 26:

In the event of failure to pay the rent hereunder, or any other default in the obligations required hereunder, which shall continue for a period of Sixty (60) days after written notice of such default, or in the event that Lessee becomes insolvent or be placed in receivership or bankruptcy proceeding, then the Lessor, at its option, may declare the amount due for the balance of the lease term immediately and entirely due and payable and may commence legal action to obtain payment of the same in full or Lessor may enter into and re-enter into and take possession of the premises instituting such legal proceedings as may be required therefore, and to preserve any privilege or lien which the law might grant to them, (emphasis supplied)

Mr. Partesotti’s letter of June 2 said in pertinent part,

“Please be advised that the Dividend Inc. is now past due rent for the months of May and June, 1982. This letter is notice of the past due rent for May, 1982 and June, 1982 of $7,000.00. Please forward a check to cover the above stated amount.”

Section 26 refers to non-payment of the rent as a default under the lease and therefore written notice that the rent has not been paid and a demand for its payment is notice of default. We can find no authority in Louisiana requiring the use of any sacrosanct language in which a notice of default must be written.

Appellee suggests that the letter of June 2 is not notice of default, and that in order to be so considered, it should have been couched in the same terms as Mr. Partesot-ti’s letter of August 5. That letter said in pertinent part:

“This is formal notice that the rent due on July 1 and August 1 has not been paid. Failure to pay this rent within 60 days as provided for in Paragraph 26 of the lease will result in action against you for eviction, and assertion of other rights under the lease.”

We disagree with this argument and find that the letter of June 2, 1982 by Mr. Partesotti to Dividend, Inc. was sufficient to have put the lessees on notice that they were in default for non-payment of the rent.

Once the lessee was given written notice of default, it then had 60 days under the terms of the lease within which to cure the default. The lessee issued and tendered a check on June 30, 1982 to cover the May rent. This check was accepted and deposited by the lessor. Lessor made its demand for the May and June rent in the same letter, thereby giving the lessee 60 days from that written notice to cure that default. The acceptance of the June 30 check in the amount of $3,500, which was applied to the May rent, timely cured that default.

“The Louisiana jurisprudence is clear and well established that a lessor’s acceptance of rental payments after the notice of default and the grace period constitutes a waiver of the breach and notification thereof.” Major v. Hall, 251 So.2d 444, 449 (La.App. 1st Cir.1971). (partially reversed on other grounds, 262 La. 243, 263 So.2d 22 (1972).

By accepting a part of the rent demanded, the lessor vitiated the effect of the default and the notice. Adam, Inc. was then bound to again notify Dividend, Inc. of its overdue June rent once the May rent was accepted. While Ernst Food Mart, Inc. v. Jackson-Atlantic, 405 So.2d 1272 (La.App. 4th Cir. 1981), and West End v. Board, 299 So.2d 418 (La.App. 4th Cir.1974), indicate that the acceptance of the May rent did vitiate the demand for May and June rent, even more persuasive is the language in Canal Realty & Improvement Co., Inc. v. Pailet, 217 La. 376, 46 So.2d 303 (1950), quoted in Arms v. Rodriguez, 232 La. 951, 95 So.2d 616, 618 (1957). “... that the acceptance ... constituted a waiver of that notice and a forgiveness as to any and all previously committed infractions, and it served to reinstate the lease as of that time.”

This would be consistent with Smith v. Lamarque, Inc., 427 So.2d 63 (La.App. 4th Cir.1981) where we held that the lessor was obligated to give a new notice to the lessee after the lessee’s checks were returned by lessor’s bank as NSF.

The next notice was not written until August 5, 1982 at which time the lessor was unaware that the June rent check, issued and tendered in July, would be dishonored by the bank. The lessor here did nothing between June 2 and August 5 to serve written notice of default upon the lessee for the unpaid June rent, therefore the breach, and the notice of June 2 were waived by acceptance of the May rent. The checks which the lessee attempted to tender to the lessor after August 5, 1982 were timely tendered under the terms of Section 26 of the lease.

On August 5 the lessee was given written notice of its overdue July and August rents. The lessor refused to accept the check in September for the June rent. This was error, as absent a new notice of default, the June payment tendered on September 1st should have been accepted by lessor and its non-acceptance cannot serve as a default by lessee.

The lessee attempted to tender a check on October 1, within the 60 day grace period after written notice, for July, August, September and October. The $14,000 tendered by lessee on October 1, 1982 was more than sufficient to cover the rent for the months of July and August placed in default by the letter of August 5th, and lessor had no right to reject this tender. If we assume that the August 5th notice impliedly contained notice of default of the June rent in addition to July and August, the $14,000 payment was ample to cure all defaults.

The appellant argues that once this payment was refused, the lessee should have consigned the amount by deposit into the registry of the court or some other means in order to protect itself. We disagree. The lessee had tendered payments in accord with the lease terms. These payments were improperly rejected. Lessee had no obligation to do anything further under the circumstances.

The lessee asserted as its affirmative defense LSA-C.C. 2694, the “repair and deduct” article of the Code. The lessee contends that the lessor was responsible for repairs to and replacement of parts of the air conditioning system. The lease clearly states in Sec. 13 that the lessor is responsible for any repairs, “... structural in character or which may be necessitated by fire or other casualty.” There was no evidence presented at trial establishing that the repairs made were of a structural nature and we find that an air conditioning system is not an element of a building’s structure. Although we disagree with the trial court’s finding on this issue it does not affect the validity of the judgment on the eviction rule.

AFFIRMED.