text:
    STATE of Louisiana v. Grover BINDOM.
    No. 84 KA 0380.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Ossie Brown, Dist. Atty., by Brett Gray-son, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   CRAIN, Judge.

On or about April 26, 1983, a man was seen stealing jeans from the J.C. Penney Store on Plank Road in Baton Rouge, Louisiana. An employee saw this man discreetly rolling up jeans and putting them into a large bag. The man left the store and was eventually chased by a manager and security guard. He escaped, however, by entering a car driven by another man. Before they fled the area, another employee obtained the license plate number and gave the information to the security guard. Through this information and a follow-up investigation, the police arrested defendant, Grover Bindom, for the theft.

Defendant was charged by bill of information with felony theft in violation of La.R.S. 14:67. Defendant pled not guilty. After a preliminary examination, the trial court found probable cause for the charge. On November 9, 1983, the case was called for trial and a six member jury was selected and sworn. The trial judge admonished the jurors and released them for the rest of the day. The next day defendant failed to appear for the resumption of trial and a bench warrant was issued for his arrest. The trial judge waited a short time for defendant to appear and then resumed trial after refusing defense counsel’s request for a continuance. Initially, defendant’s assigned counsel from the public defender’s office was present. Due to an emergency, she left prior to the resumption of trial. Another attorney was substituted for assigned counsel and the trial judge resumed trial. The trial court denied new defense counsel’s motion for continuance based upon his lack of preparation and defendant’s absence. The jury found defendant guilty of theft of 24 pair of jeans valued at five hundred dollars or more. On January 23, 1984, defendant was present in court represented by counsel from the public defender’s office. Defendant was found guilty of contempt of court and sentenced to six months in parish prison. On the felony theft conviction, he was sentenced to the maximum sentence of ten years at hard labor, with credit for time served. This sentence was to run consecutively to the sentence for contempt.

Defendant appeals his theft conviction and sentence, alleging nine assignments of error. Assignment of error number three was not briefed and therefore is considered abandoned. Rule 2-12.4, Uniform Rules of the Courts of Appeal; State v. Kent, 434 So.2d 1258 (La.App. 1st Cir.1983), writ denied, 440 So.2d 727 (La.1983). Since we find merit in assignment of error number one, we will consider no other assignments.

ABSENCE OF DEFENDANT

Defendant contends the trial court erred in allowing the trial to proceed, in charging the jury, and in accepting the verdict in his absence.

La.C.Cr.P. art. 831 provides:

A defendant charged with a felony shall be present:
(1) At arraignment;
(2) When a plea of guilty, not guilty, or not guilty and not guilty by reason of insanity is made;
(3) At the calling, examination, challenging, impanelling, and swearing of the jury, and at any subsequent proceedings for the discharge of the jury or of a juror;
(4) At all times during the trial when the court is determining and ruling on the admissibility of evidence;
(5) In trials by jury, at all proceedings when the jury is present, and in trials without a jury, at all times when evidence is being adduced; and
(6) At the rendition of the verdict or judgment, unless he voluntarily absents himself;

La.C.Cr.P. art. 832 provides that: “[a] defendant charged with a felony not punishable by death cannot object to his temporary voluntary absence at the proceedings listed in Article 831 if his counsel was present.” Thus, for a waiver to be effective, the defendant’s attorney must be present and the absence must be voluntary and temporary.

Defendant contends that, since the record reveals that his absence was not temporary, La.C.Cr.P. art. 832 was erroneously applied. The state argues that the word “temporary” should not be construed too narrowly. In addition, it contends that a determination of the temporariness of the absence must be made at the beginning of the absence. Furthermore, the state argues that the trial judge reasonably assumed that defendant would be arriving soon.

There is limited jurisprudence on the interpretation of Article 832, especially on the meaning of the word “temporary”. Official Revision Comment (b) to Article 832 states:

(b) Rights of absent defendants, whose voluntary absence create the problem, are fully protected by the stated limitations. The waiver is only effective if his attorney is present, and if the absence is of a temporary nature. Possibly the second limitation would apply even if it were not spelled out, for “due process” would require that the defendant should not be tried if he completely absents himself after the arraignment. Snyder v. Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674 (1934). The absences where a waiver has been recognized have been of fairly short duration.

In State v. Bolton, 408 So.2d 250 (La.1981), the defendant voluntarily left the courtroom, with his attorney’s acquiescence, during the examination of a witness. The Louisiana Supreme Court held that, under La.C.Cr.P. art. 832, defendant could not object to continuance of trial in his absence. In the present case, however, defendant left during a recess after the first day of trial; he did not return on the second day of trial nor did his attorney agree to the absence.

The state also cites State v. Behn, 445 So.2d 516 (La.App. 3rd Cir.1984), a Third Circuit case interpreting Article 832. In Behn the defendant escaped from the holding room where he had been placed after closing arguments and prior to jury charges. The trial judge determined that he would proceed, and he charged the jury in the absence of the defendant. The guilty verdict was also returned without the defendant being present. In that case, the defendant conceded his absence was voluntary, but contended that he did not intend for his escape to be temporary. The Third Circuit agreed with the State that a finding that the absence did not fall within the exception of Article 832 would allow defendant to manipulate the judicial process.

In holding that Behn’s absence was voluntary and temporary and within the ambit of Article 832, the Third Circuit stated:

In this case defendant’s counsel was present at all proceedings in which the defendant chose to absent himself. The charging of the jury was not adversarial in nature and did not require any input by the defendant. Also the defendant’s further presence could hardly have altered the outcome of the trial. State v. Behn, 445 So.2d at 519.

The instant case is distinguishable from Behn. Defendant was absent from the adversarial portion of the trial, including the presentation of evidence and cross examination of witnesses, which might have required his input. In addition, defense counsel only became involved when defendant’s assigned counsel had to leave for an emergency the second day of the trial. Given defense counsel’s lack of preparation, defendant’s presence might have had an effect on the trial. Defendant was in effect tried in absentia — a patent denial of due process. Snyder v. Massachusetts, supra.

Thus, in this case, we find that defendant’s absence does not fall within the scope of Article 832 which requires a temporary absence for an effective waiver. Since defendant was neither present as required during the important stages of trial nor waived his presence, the trial court erred in proceeding with the trial.

^Because we find grounds for reversal based on this assignment of error, we find it unnecessary to discuss the merits of defendant’s remaining assignments of error.

For the foregoing reasons, defendant’s conviction is reversed and his sentence vacated and this matter remanded to the trial court for further proceedings.

CONVICTION REVERSED, SENTENCE VACATED, REMANDED.

      . The employees were asked by the prosecutor to recall the events of April 26, 1983, and they indicated this was the date of the offense. The bill of information recites the date as "on or about the 26th day of April 1983”. However, two security guards testified the theft occurred on April 21, 1983.

      . Failure of the trial judge to grant a continuance for this reason is cited as error. This is a misnomer that confuses what the trial court could have done. A continuance shall not be granted after commencement of a trial or hearing. La.C.Cr.P. arts. 708 and 761. Here the trial court could have recessed the trial while attempt was made to execute the bench warrant. Contempt and bond forfeiture proceedings could have been invoked for defendant’s unauthorized absence. If it was impossible to execute the bench warrant within a reasonable time, a mistrial could have been declared under La.C.Cr.P. art. 775, the proper sentences imposed and the proceedings recommenced at a later date. Although defendant may have intentionally disrupted the orderly proceedings of the court, such actions could have been dealt with through contempt, bond forfeiture and bond setting procedures that would have resulted in severe sanctions. What cannot be done is a trial in absentia.


source: Caselaw Access Project

author: WATKINS, Judge.

license: Public Domain

text:
    STATE of Louisiana v. Albert BOSTON.
    No. 84 KA 0403.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Ossie Brown, Dist. Atty. by Ernest Smithling, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before WATKINS, CRAIN and ALFORD, JJ.
   WATKINS, Judge.

Defendant, Albert Boston, was indicted for second degree murder in violation of LSA-R.S. 14:30.1. Initially, he pleaded not guilty, but after a Boykin examination, the trial court allowed defendant to withdraw his plea. He entered a plea of guilty to a charge of manslaughter in violation of LSA-R.S. 14:31. Defendant was sentenced to three years at hard labor, with credit for time served from arrest date until bonded on this charge. Defendant now appeals his sentence.

Defendant alleges that the trial court erred in failing to follow the sentencing guidelines of LSA-C.Cr.P. art. 894.1 and in imposing an excessive sentence.

The structure of LSA-C.Cr.P. art. 894.1 requires that the trial court weigh both aggravating and mitigating circumstances to determine whether or not to impose incarceration. The trial court is not required to articulate every such circumstance in imposing sentence, but the record must reveal the court adequately considered the guidelines enumerated in art. 894.1. State v. Collins, 448 So.2d 260 (La.App. 1st Cir.1984).

In pronouncing sentence, the trial court stated that since this was defendant’s first felony conviction it would recommend that defendant be incarcerated at the facility for first offenders located at DeQuincy. The trial judge also stated that probation was not appropriate due to the seriousness of the crime and defendant’s previous criminal record. The court stated, however, that it considered the mitigating conditions under art. 894.1 and was imposing a sentence of three years at hard labor. The maximum sentence for manslaughter is twenty-one years imprisonment at hard labor. LSA-R.S. 14:31.

Wide discretion is given the trial judge in the imposition of a sentence within the applicable statutory limits; in the absence of manifest abuse, a sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La.App. 1st Cir. 1983), writ denied, 440 So.2d 731 (La.1983). After reviewing the record, we find that the trial judge adequately considered the guidelines set forth in LSA-C.Cr.P. art. 894.1. Furthermore, as the sentence imposed was in the lower end of the sentencing range we do not find an abuse of the trial court’s wide discretion.

The conviction and sentence accordingly are affirmed.

AFFIRMED.


author: CARTER, Judge.

text:
    STATE of Louisiana v. Andre CARTER.
    No. 84 KA 0405.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Ossie Brown, Dist. Atty. by Brett Gray-son, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge.

Defendant, Andre Carter, was charged by bill of information with simple burglary, a violation of LSA-R.S. 14:62. The charge arose from an incident in which defendant, using a crowbar, broke into a house and stole a television set. A plea bargain arrangement was made whereby defendant agreed to plead guilty to the charge and was guaranteed a sentence not to exceed six years in the custody , of the Department of Corrections. In addition, the state guaranteed that it would not file a habitual offender bill against defendant. Thereafter, defendant pled guilty and was sentenced to six years in the custody of the Department of Corrections.

On appeal, defendant contends that the trial court imposed an excessive sentence. In support of this contention, defendant argues that the trial court failed to comply with the sentencing guidelines set forth in LSA-C.Cr.P. art. 894.1 and that, therefore, the record is inadequate for purposes of appellate review.

During the Boykin examination, the trial judge asked defendant the following:

Q You are declaring that no officer, agent, or any branch of government has promised or suggested you will receive a lighter sentence, probation, or any form of leniency if you plead guilty today, except I have indicated to your attorney I will give you no more than one-half the maximum sentence the law provides for this offense, which is up to six years in prison? Do you understand that?
A Yes, sir.
* * * * * *
Q Okay. You understand the sentence you will receive is the sole discretion of myself as Judge in this matter, and where you hope to receive leniency, you are prepared to accept those six years I told your attorney I was going to give you in this matter?
A Yes, sir.
Q You will note on the plea bargain agreement there that I have written in that that I will give you no more than six years in D.O.C. and the District Attorney has indicated he will not file the Habitual Offender Statute against you in this case?
A Yes, sir.
Q That accurately reflects the deal that you have in this matter, is that correct?
A Yes, sir.

Following the Boykin examination, defendant waived sentencing delays and the trial judge sentenced defendant as follows:

Q Okay. Mr. Carter, because of your previous record, of which I have been made aware by the District Attorney and your defense counsel, and because of your plea herein and the bargain that you and I had together and the District Attorney with regard to this particular matter, it is the sentence of this Court that you be confined to the Department of Corrections for a period of six years....

Where a specific sentence has been agreed to as a consequence of a plea bargain, that sentence cannot be appealed as excessive and there is no need for the trial judge to give reasons for the sentence as required by art. 894.1. State v. Edwards, 434 So.2d 395 (La.1983); State v. Lewis, 434 So.2d 1261 (La.App. 1st Cir. 1983); State v. Buckenburger, 428 So.2d 966 (La.App. 1st Cir.1983). See also, State v. Bell, 412 So.2d 1335 (La.1982). Because defendant entered into a plea bargain agreement with a specific sentence, we find that the requirements of art. 894.1 are not mandated. We further find that defendant is precluded from challenging the exces-siveness of his sentence. Accordingly, we find no merit in this assignment of error.

Defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: COLE, Judge.

text:
    STATE of Louisiana v. Pearl BALSER.
    No. KA 84 0422.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Leon A. Picou, Jr., St. Francisville, for plaintiff.
    Clayton M. Perkins, Jr., St. Francisville, for defendant.

      Before COLE, CARTER and LANIER, JJ.
   COLE, Judge.

The issue presented is whether or not an unreasonable search of defendant was conducted by prison personnel when defendant sought to visit her inmate son at the Louisiana State Penitentiary. Unreasonable searches and seizures are prohibited by the Fourth and Fourteenth Amendments to the United States Constitution. The right of privacy is protected also by Article 1, Section 5, of the Louisiana Constitution of 1974.

Defendant, Pearl Balser, was charged by grand jury indictment with introducing contraband into the grounds of a correctional institution in violation of R.S. 14:402. Following the denial of her motion to suppress, defendant withdrew her not guilty plea and pled guilty, reserving the right to appeal the court’s ruling. The court sentenced defendant to six months at hard labor. Defendant appeals her conviction, alleging only the trial court erred in denying her motion to suppress.

On November 12, 1983 defendant attempted to visit her son, an inmate at the state prison. She underwent a routine “pat-down” search upon entering the prison facility and was instructed to return several items to her car. Upon re-entry defendant underwent another pat-down search. Along with the other visitors, she then boarded a prison bus and was taken to a visiting area located approximately a mile inside the facility. As the visitors filed into the visiting room, defendant was asked to step aside. Two female prison employees took her to a private room and informed her she was to be strip searched. They stated defendant did not resist or object, but merely questioned why she had been singled out from the other visitors. One of the employees testified if defendant had refused to be searched, she would have been asked to leave and would not have been permitted to visit her son, but she would not have been searched. According to defendant, she told the prison employees she did not want to be searched and repeatedly asked why she was chosen for that purpose. As a result of the search, fourteen balloons containing marijuana were discovered in defendant’s sock.

At the suppression hearing the court found defendant had not actively consented to the search. The court did accept the testimony of the prison employees that defendant did not actually object or refuse to be searched. The court denied the motion to suppress on the grounds the contraband could have been discovered in a pat-down search, which it felt was justified in the interest of security. We affirm the denial of defendant’s motion to suppress, but for different reasons. Based upon a totality of the circumstances, we find the search was reasonable and thus constitutionally permissible.

Due to security requirements, special considerations are present when dealing with visitors to prison facilities. In State v. Pitts, 263 La. 38, 267 So.2d 186, 187 (1972), the Louisiana Supreme Court, recognizing the special problems facing prison officials, stated:

“In order to maintain prison security, certain measures must be taken to insure that visitors to the prison do not smuggle contraband articles to the inmates. Persons who wish to visit prisons must therefore realize that their persons are subject to search if they intend to enter the prison confines.”

Defendant admitted being aware of signs posted at Angola stating that those entering were subject to personal searches. Accordingly, we find defendant consented to such a search when, having this knowledge, she freely chose to enter the prison grounds. Furthermore, under these circumstances, defendant did not have a reasonable expectation of privacy upon entering the prison.

At no time did defendant revoke this consent, either by her words or actions. She did not resist or object when asked to step into a private room, nor did she refuse to remove her clothing. She cooperated fully with prison personnel. There is no indication her cooperation was the result of threats, physical or psychological abuse or threats. In this regard, we note defendant had been visiting her son approximately once a month for at least three years. She had undergone numerous pat-down searches and was familiar with the penitentiary setting and the prison personnel. Under these circumstances, any coercion inherent in the situation would be virtually eliminated.

In addition to the attendant circumstances, defendant also gave written consent to a personal search. On February 6, 1980 defendant completed and signed a form requesting her name be placed on the list of approved visitors to Angola. This form contained the following language immediately above the signature line:

“I HEREBY AGREE TO A PERSONAL SEARCH BY SECURITY PERSONNEL OF THE LOUISIANA STATE PENITENTIARY WHILE ON PRISON GROUNDS.”

As noted above, defendant at no time revoked her voluntary consent to a personal search. One of the specifically established exceptions to the requirements of both a search warrant and probable cause is a search conducted pursuant to consent, and to determine whether consent was voluntary a court must look to the totality of the circumstances. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); State v. Ludwig, 423 So.2d 1073 (La.1982). Defendant’s past experiences, her knowledge of the rules, her expectations of privacy compromise, and her initial written consent to personal searches by security personnel, all taken together, validates the constitutionality of the search.

For the above reasons, we affirm defendant’s conviction.

AFFIRMED.

      . As a predicate to the claim a warrantless search of a prison visitor may violate constitutional rights as regards unreasonable searches and seizures, our sister state of Florida requires one must first establish a reasonable expectation of privacy to be free from the particular intrusion involved. See, Wells v. State, 402 So.2d 402 (Fla.1981); Williams v. State, 400 So.2d 988 (Fla.App. 1st Dist.1981), rehearing denied, 411 So.2d 385 (Fla.1981). We deem this a sound approach.


author: CARTER, Judge:

text:
    STATE of Louisiana v. Morrison Lee FURLOW.
    No. 84 KA 0441.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      Ossie Brown, Dist. Atty., by Brett Gray-son, Asst. Dist. Atty., Baton Rouge, for plaintiff-appellee.
    Anne L. Jordan, Appellate Counsel, Asst. Public Defender, Baton Rouge, for defendant-appellant.
    Before COLE, CARTER and LANIER, JJ.
   CARTER, Judge:

Defendant, Morrison Lee Furlow, was charged by bill of information with third offense DWI, a violation of LSA-R.S. 14:98. Defendant moved to quash the bill of information. In support of this motion, defendant argued that he was denied equal protection of the law due to the disparity in sentencing provisions for third offense DWI and fourth offense DWI, i.e., a third offense DWI conviction requires six months of the sentence be served without parole, probation or suspension of sentence, while a fourth offense DWI conviction has no such requirement. Defendant’s motion to quash the bill of information was denied. Defendant then pled guilty to the charge and expressly reserved his right to appeal the denial of the motion. See State v. Crosby, 338 So.2d 584 (La.1976). The trial judge sentenced defendant to serve one year in the custody of the Department of Corrections with credit for time already served.

In defendant’s sole assignment of error, he argues that the trial judge erred in denying the motion to quash the indictment. Defendant contends that his conviction of a third offense of DWI subjects him to the imposition of a harsher penalty than one convicted of a fourth offense of DWI, i.e., a mandatory six month jail sentence. Defendant further contends that, as a result of this disparity, his right to equal protection of the law has been violated. U.S. Const. 14th Amendment; LSA-Const. Art. I, § 3.

LSA-R.S. 14:98(D) and (E) provide as follows:

D. On a third conviction, [for DWI] regardless of whether the offense occurred before or after an earlier conviction, the offender shall be imprisoned with or without hard labor for not less than one year nor more than five years, and may be fined not more than one thousand dollars. At least six months of the sentence of imprisonment imposed shall be without benefit of probation, parole, or suspension of sentence. If a portion of the sentence is imposed with benefit of probation, parole, or suspension of sentence, the court shall require the offender to participate in a court-approved substance abuse program and/or participate in a court-approved driver improvement program.
E. On a fourth conviction, [for DWI] regardless of whether the fourth offense occurred before or after an earlier conviction, the offender shall be sentenced to imprisonment at hard labor for not less than ten nor more than thirty years.

In the case sub judice, the actual sentence imposed on defendant is one year at hard labor. The trial judge did not specify that a portion of defendant’s sentence be served without parole, probation or suspension of sentence as required by LSA-R.S. 14:98(D). In the recent case of State v. Jackson, 452 So.2d 682 (La.1984), the Louisiana Supreme Court found that such sentencing errors are not to be noted as patent errors by the reviewing court.

The United States Supreme Court has held that a party has standing to challenge the constitutionality of a statute only insofar as it has an adverse impact on his own rights; and, as a general rule, if there is no constitutional defect in the application of the statute to a litigant, he does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations. County of Ulster v. Allen, 442 U.S. 140, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979); State v. Turner, 392 So.2d 436, 441 (La.1980). We have adhered to this position by saying that only a person whose rights are injuriously affected by those provisions of the law sought to be declared unconstitutional can be heard to challenge the constitutionality thereof. State v. Turner, supra; State v. McMahon, 391 So.2d 1120, 1123 (La.1980).

The sentence actually imposed on defendant did not implement the mandatory jail sentence requirement for one convicted of a third offense DWI. Therefore, defendant has not been adversely affected by what he claims is an unconstitutional disparity in the sentencing provisions of LSA-R.S. 14:98. As a result, we need not address defendant’s contentions concerning the unconstitutionality of LSA-R.S. 14:98.

We find no merit in defendant’s assignment of error.

Accordingly, defendant’s conviction and sentence are affirmed.

AFFIRMED.


author: GROVER L. COVINGTON, Chief Judge.

text:
    STATE of Louisiana v. Pamela MARTINDALE.
    No. KA 84 0547.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.

      David J. Paddison, Asst. Dist. Atty., Cov-ington, for the State.
    S. Austin McElroy, Indigent Defender, Covington, for defendant.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON, JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   GROVER L. COVINGTON, Chief Judge.

The only issue before us is the excessiveness of the sentence imposed on the defendant, Pamela Martindale, as a result of her guilty plea to manslaughter, LSA-R.S. 14:31, for the homicide of her husband, William David Martindale.

The charge arose out of a confrontation which developed when her husband came into the bedroom and found the defendant in bed with another man. The husband was unarmed. The husband was shot twice in the chest and died shortly thereafter. There is no evidence in the record to support the defendant’s version of the confrontation as stated in the brief on appeal. The evidence shows the shooting was without justification.

The defendant was indicted for second degree murder. Initially, she pled not guilty; but when the charge was reduced to manslaughter, she withdrew her not guilty plea. After a “Boykin” hearing, her plea of guilty was accepted by the court, and a sentence of ten years at hard labor was imposed.

Wide discretion is given the trial judge in the imposition of a sentence within the applicable statutory limits; in the absence of manifest abuse, this sentence will not be set aside as excessive. State v. Wroten, 433 So.2d 249 (La.App. 1st Cir. 1983), writ denied 440 So.2d 731 (La.1983).

The maximum sentence for manslaughter is twenty-one years at hard labor. About one-half of the maximum sentence was imposed. In pronouncing sentence, the trial judge noted that he had reviewed the factors listed in LSA-C.Cr.P. art. 894.1 to determine if a suspended sentence or probation would be appropriate. In his opinion, neither was appropriate. The judge stated that he had considered the mitigating circumstances listed in LSA-C. Cr.P. art. 894.1, and that none were applicable. The judge then stated that there was no justification for the shooting, and he concluded that any lesser sentence would “deprecate the seriousness of the crime”—taking the life of another person.

The sentencing judge is not required to articulate the factors set out in Article 894.1, as long as the record shows that he adequately considered the guidelines. The record shows that the judge did consider the statutory guidelines and stated a factual basis for the factors he found to be present. We hold that he complied with Article 894.1.

This brings us to the question of whether the ten year sentence is excessive, in violation of LSA-Const. 1974, Art. I, Section 20. A sentence is considered excessive if it is grossly out of proportion to the severity of the offense or is nothing more than the purposeless and needless imposition of pain and suffering. State v. Bonanno, 384 So.2d 355 (La.1980).

The transcript of the sentencing hearing shows that the district judge considered the circumstances of the crime, particularly that the defendant and her paramour took a person’s life, and that the original charge of second degree murder had been reduced to the lesser crime of manslaughter. The judge also considered a presentence investigation and made the contents thereof known to defense counsel. This is a gross offense in which the defendant took the life of another. The sentence is well proportioned to the magnitude of the crime and is certainly not grossly out of proportion to the crime of manslaughter. The sentence is not one that can be said to be nothing more than the purposeless and needless imposition of pain and suffering, or one that “shocks our sense of justice.” State v. Pearson, 425 So.2d 704 (La.1982). We find that the trial judge did not abuse his discretion in imposing this sentence.

DECREE

Accordingly, the sentence of the defendant is affirmed.

AFFIRMED.


author: JOHN S. COVINGTON, Judge Pro Tem-pore:

text:
    BOARD OF REGENTS, STATE OF LOUISIANA v. The BOARD OF TRUSTEES FOR STATE COLLEGES AND UNIVERSITIES, et al.
    No. 84-CA-1008.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 20, 1984.
    Mack E. Barham, New Orleans, for plaintiff-appellee Board of Regents, State of Louisiana.
    W.S. McKenzie, Baton Rouge, for inter-venor-appellee Board of Supervisors of Louisiana State University and Agricultural & Mechanical College.
    Winston G. Decuir, Baton Rouge, Bob F. Wright, Lafayette, for defendant-appellant Board of Trustees for State Colleges and Universities.
    Before GROVER L. COVINGTON, C.J., and LOTTINGER and JOHN S. COVINGTON , JJ.

       Judge John S. Covington of the 19th Judicial District Court has been duly elected to this court; that term begins on January 1, 1985. In the interim, the Supreme Court has appointed him to this court pro tempore.

   JOHN S. COVINGTON, Judge Pro Tem-pore:

Plaintiff-appellee, Board of Regents, State of Louisiana, filed a motion to dismiss this appeal on grounds that the issue has become moot, and this Court issued a rule to show cause why the appeal should not be dismissed.

The suit which forms the basis of this appeal arose as a result of an April 27, 1984, meeting of the Board of Trustees for State Colleges and Universities, (hereinafter referred to as the Board of Trustees) at which meeting a resolution was approved to change the name of the University of Southwestern Louisiana (“USL”) to that of the University of Louisiana (“UL”). The Board of Regents filed suit on May 10, 1984, to enjoin defendants, the Board of Trustees, the University of Southwestern Louisiana (sic) University of Louisiana, et al., from implementing the resolution and further sought declaratory judgment that defendants’ actions were illegal in that a name change required prior approval of the Board of Regents. A temporary restraining order was issued on May 10, 1984. By stipulation of the parties, the hearing on plaintiffs request for a preliminary injunction was consolidated with the hearing on the permanent injunction and the request for a declaratory judgment, and that hearing was held on May 22, 1984. The trial court rendered judgment May 24, 1984, declaring the Board of Trustees’ action of changing the name of USL null and void and without effect and enjoining the defendants from taking any action in implementing the name change and from using the name of UL in any manner to identify USL. An amended judgment, signed the same date, further declared that the Board of Trustees is not vested with constitutional or statutory power to change or require the Board of Regents’ approval of any change in the name of a state college or university and that the power and authority to change the name of USL is vested in the Louisiana Legislature.

Plaintiff-appellee’s motion to dismiss the appeal is based upon its contention that the subsequent enactment of Act 656 of the 1984 Regular Session of the Legislature has rendered consideration of the appeal, moot.

The basis for the trial court’s judgment is determinative of the mootness issue, because that judgment involved a question, essentially one of constitutional interpretation, as to the authority of the Board of Trustees and Board of Regents, both of which are constitutionally created bodies. The trial court’s decision pivots on its interpretation of provisions relating to the authority of the Board of Trustees contained in Article VIII, Section 6 of the Louisiana Constitution and provisions relating to the authority of the Board of Regents contained in Article VIII, Section 5 of the Louisiana Constitution.

A matter is considered moot when the rendition of the judgment can have no practical legal effect upon the existing controversy. L.W. Eaton Construction Company, Inc. v. State, through the Division of Administration, 398 So.2d 588 (La.App. 1st Cir.1980). The court will not rule on a question of law which becomes moot since the decree would serve no useful purpose and give no practical relief. Graves v. Louisiana National Bank of Baton Rouge, 434 So.2d 1169 (La.App. 1st Cir. 1983.).

Under the facts of the instant appeal, the subsequent enactment of a statute, Act 656 of 1984, cannot be said to render the issue on appeal moot, because the judgment from which the appeal is sought was founded upon the interpretation of constitutional provisions by the trial court. This conclusion must follow, based upon the fundamental and well-established distinction between constitutional and statutory law. In State v. Smith, 209 La. 363, 24 So.2d 617 (1945), the Supreme Court, in recognition of that distinction, stated that “the constitution is the paramount law, to which all other laws must yield, and its provisions must prevail over an act of the Legislature which is in conflict therewith.”

Assuming arguendo that the trial court’s judgment in the instant appeal had rested solely on its interpretation of statutory provisions, then the subsequent enactment of Act 656 of 1984 could quite possibly have resolved the issue on appeal, making the appeal moot, because under such an hypothesis the laws being subjected to interpretation as well as the subsequently enacted statute would have been of equal dignity. Under the circumstances of the instant appeal, the law interpreted by the trial court and Act 656 of 1984 are of unequal dignity. Thus, the issue on appeal, whether or not the Board of Trustees possessed the constitutional authority to change the name of USL to UL, cannot be rendered moot by the enactment of an inferior statutory law, Act 656 of 1984. The legislature cannot by legislative act repeal, usurp or alter constitutional provisions. See Board of Elementary and Secondary Education v. Nix, 347 So.2d 147 (La.1977).

For the foregoing reasons, the motion to dismiss this appeal is denied.

MOTION DENIED.

      . Act 656 of the 1984 Regular Session provides, inter alia, that the powers, duties and responsibilities of the Board of Regents shall include the power and authority to name or rename institutions of public higher education. The Act further provides that any contrary action taken by any management board of higher education notwithstanding, that the names of the public institutions of higher education in this state shall be, on the effective date of this Act, as provided in R.S. 17:3215-R.S. 17:3217. The Act further requires the Board of Regents to obtain legislative approval prior to naming or renaming any institution of public education. Act 656 became effective September 3, 1984, in accordance with Article III, Section 19 of the Louisiana Constitution of 1974 i.e. the sixtieth day after final adjournment, since the Act did not specify an earlier or later effective date.

      . It is interesting to note that even plaintiff-ap-pellee conceded this in its memorandum submitted to this Court, in support of its motion to dismiss the appeal. That concession appears at page 3 of said memorandum, as follows: "Both the Board of Regents and the Board of Trustees are constitutionally created bodies, and the question before the trial court was essentially one of constitutional interpretation.”

      . The discussion of Act 656 of 1984 herein relates solely to the issue presently before the Court, whether or not to grant or deny the motion to dismiss the appeal. In no way does the discussion herein relate to whether or to what extent Act 656 of 1984 shall have effect with respect to the facts of the case on appeal; that matter not being presently before the Court will be properly addressed only on consideration of the merits of the appeal.


author: KNOLL, Judge.

text:
    Bill Raymond STEVENS, Plaintiff-Appellant, v. Bob HOUSE, et al., Defendant-Appellee.
    No. 82-847.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      James E. Franklin, Jr., Shreveport, Ro-thell & Cohn, David A. Rothell, Mansfield, for plaintiff-appellant.
    Lunn, Irion, Switzer & Salley, Jack E. Carlisle, Jr., Shreveport, Brittain & Williams, Jack 0. Brittain, Natchitoches, Jerry Finley, Baton Rouge, for defendant-appel-lee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

Bill Raymond Stevens appeals the trial court’s judgment dismissing his tort claim for personal injuries against Natchitoches Parish and the Natchitoches Parish Police Jury on a motion for summary judgment. The assignments of error present two issues: (1) whether there was any genuine issue as to material fact; and (2) whether oral testimony may be taken at a hearing on a motion for summary judgment.

On February 23, 1981, Stevens filed two identical suits against Bob House, Commercial Union Insurance Company, Aetna Casualty and Surety Company, the State of Louisiana, Department of Highways, Natchitoches Parish, and the Natchitoches Parish Police Jury; the first was filed in Red River Parish at 12:20 p.m. and the second in Natchitoches Parish at 1:40 p.m. The State of Louisiana, Department of Highways, filed exceptions of vagueness and lis pendens; Natchitoches Parish and the Natchitoches Parish Police Jury filed exceptions of no cause or right of action, a petition for declaratory judgment, and a motion for summary judgment which asserted that they were not liable because Natchitoches Parish had not built, owned or maintained the highway where the accident occurred.

The trial court granted the motion for summary judgment and sustained the exception of lis pendens.

We will not treat the issues raised by Stevens because we find the issues moot. In the interest of judicial economy the appellate court may declare mootness on its own motion. Behler v. Louisiana State Racing Commission, 251 La. 959, 207 So.2d 758 (1968). Courts will not ordinarily rule on legal questions where no practical results can be effectuated by its ruling. La. Ass’n of Educ. v. Concordia Par. Sch. Bd., 441 So.2d 9 (La.App. 3rd Cir.1983); In Re Baer, 310 So.2d 537 (La.1975).

Stevens seeks a ruling that the trial court improvidently granted Natchitoches Parish’s motion for summary judgment. From the colloquy on the exception of lis pendens, Stevens, through counsel, clearly declared that he did not wish to pursue both lawsuits. He stated that the only problem presented by having his Natchi-toches Parish lawsuit dismissed was that counsel for Natchitoches Parish and the Natchitoches Parish Police Jury would have to repeat their motion for summary judgment in Red River Parish. We find this to be a consent by Stevens to have his lawsuit tried completely in Red River Parish, and an acknowledgment on counsel’s part that the proceedings held on the motion for summary judgment were moot. Further, if the trial court had first ruled on the exception of lis pendens, no action would have been taken in Natchitoches Parish on the motions for summary judgment.

Under this procedural setting, a judgment by this court on the propriety of the motions for summary judgment would serve no useful purpose, nor could it afford Stevens any practical relief, since the same motions for summary judgment can now be urged in Red River Parish.

Accordingly, the appeal by Stevens is dismissed as moot. All costs of appeal are assessed to plaintiff-appellant, Bill Raymond Stevens.

APPEAL DISMISSED.

GUIDRY, J., concurs in the result.


author: GUIDRY, Judge.

text:
    Alex PROMISE, Plaintiff-Appellee, v. Mayor Hubert L. McGLOTHIN, et al., Defendants-Appellants.
    No. 83-1036.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Louis L. Vogt, Jonesville, for defendants-appellants.
    James Garland Smith, Monroe, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

Alex Promise, the plaintiff, was employed as a fireman by the City of Ferri-day. On June 3, 1983, some one year and eight months following his employment, he was advised by letter from the fire chief, his immediate superior, that he was suspended from his duties as of that date because of his disrespect to the Mayor and City Hall staff and because of his arrest on a charge of disturbing the peace.

Plaintiff thereafter appeared at the June 14, 1983, meeting of the Mayor and City Council for the purpose of having his employment status determined but was denied the opportunity to speak on his own behalf. At this meeting, he was informed that the matter would not be considered by the City Council until he complied with the City of Ferriday-Grievance Procedure—a copy of which was furnished to him at this meeting.

Plaintiff did not follow the grievance procedure but instead filed the instant suit seeking a court order mandamusing the Mayor and City Council of Ferriday to call a meeting, at which time he would be given the “opportunity to be heard and to have his job status determined.” In response to plaintiffs petition, the trial court, on July 7, 1983, ordered that an alternative writ of mandamus issue directing the Mayor and City Council to hold a meeting for the purpose of hearing plaintiff or show cause why they should not do so. A hearing was held on this matter on July 18, 1983, and the trial court entered judgment ordering the Mayor and City Council to allow the plaintiff the opportunity to be heard at its next regularly scheduled meeting concerning his suspension. The City appealed sus-pensively.

On appeal, the City of Ferriday urges that the plaintiff is not entitled to a hearing because his employment has been terminated, rendering the question moot, and secondly, plaintiff did not exhaust his administrative remedies.

At the outset, it should be noted that appellant’s contention that the issue is moot because plaintiff has been fired cannot be considered by this court. There is no evidence in the record to support the contention that plaintiff was fired. The Court of Appeal cannot consider evidence that is not in the record. Seymour v. Seymour, 423 So.2d 770 (La.App. 4th Cir.1982).

A review of the record does lead us to conclude, however, that the plaintiff has failed to show that he is entitled to the remedy of mandamus.

Mandamus is an extraordinary remedy which is used sparingly and will not issue in doubtful cases. A writ of mandamus is issued to compel the performance of a ministerial duty required by law. (La.C. C.P. Art. 3863). Mandamus may also be issued in cases where the law provides no relief by ordinary means or where the delay involved in obtaining ordinary relief may cause injustice. La.C.C.P. Art. 3862. Board of Commissioners of the Lafourche Basin Levee District v. Board of Commissioners of Atchafalaya Basin Levee District, 340 So.2d 600 (La.App. 1st Cir.1976); Deville v. City of Oakdale, 180 So.2d 556 (La.App. 3rd Cir.1965).

In the instant case, the law imposes no absolute duty on the Mayor and City Council to allow plaintiff an opportunity to be heard at its next regularly scheduled meeting. Additionally, if plaintiff has been suspended or discharged from his employment improperly and without just cause, the law provides an adequate remedy for determination of this fact and for appropriate relief through ordinary proceedings. In this latter connection, there is no showing that plaintiff will be prejudiced in any way by proceeding via ordinaria. See Hays v. Louisiana Wild Life & Fisheries Commission, 153 So.2d 562 (La.App. 3rd Cir. 1963), writ denied, 244 La. 902, 154 So.2d 769 (1963). Accordingly, we determine that the trial court clearly erred in issuing a writ of mandamus in this case.

For the above and foregoing reasons, the judgment of the trial court is reversed and judgment is entered ordering plaintiffs suit dismissed. All costs at the trial level and on appeal are taxed to plaintiff.

REVERSED AND RENDERED.


author: DOUCET, Judge.

text:
    Sidney P. LANDRY, Jr., Plaintiff-Appellant, v. The SUCCESSION OF Wilna Thibodeaux LANDRY & Sidney P. Landry, Charles H. Landry, Defendant-Appellee.
    No. 83-1065.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Writ Denied Feb. 8, 1985.
    Sidney P. Landry, Jr., Lafayette, Anatole J.Plaisance, Baton Rouge, J. Daniel Riv-ette, Caliste Beard, Jr., Lafayette, for plaintiff-appellant.
    Charles Debaillon, Paul N. DeBaillon and Kenneth G. Miller, Lafayette, for defendant-appellee.
    Before DOUCET, LABORDE, and YEL-YERTON, JJ.
   DOUCET, Judge.

This appeal arises from litigation involving certain assets within the succession of Wilna Thibodeaux Landry and Sidney P. Landry. From a judgment that reinstated the homologation of a partition in kind of these assets, Sidney Landry, Jr. perfected this appeal.

Charles A. Landry and Sidney P. Landry, Jr., who are the children of the decedents, received the assets from the succession in a judgment of possession rendered on September 15, 1976. Much of these assets were owned by Charles Landry and Sidney Landry, Jr. in undivided interests. On May 19, 1978, Sidney Landry, Jr. petitioned for an injunction against his brother, Charles Landry, to enjoin him from using the assets held indivisión because Charles was allegedly using the assets to the detriment of and in disregard of Sidney Landry, Jr’s, rights. Charles Landry filed an exception of no right of action and reconvened seeking a partition in kind. After several delays Charles Landry secured a preliminary default on his reconventional demand for a partition in kind. The default was confirmed and a judgment was rendered on June 16, 1978. This judgment granted Charles Landry’s reconventional demand for a partition in kind and it appointed a notary to conduct an inventory and propose an equitable division. After conducting the inventory, the notary filed his proces verbal of the partition on November 19, 1982. Included in the proces verbal were letters submitted by each party raising objections to certain items in the inventory.

On December 28, 1982, Charles Landry filed a rule to show cause why the partition should not be homologated. Notice of this rule was served personally on Sidney Landry, Jr. on January 4, 1983. After receiving a certificate of no opposition to the rule from the Clerk of Court’s office, the trial court homologated the partition on January 27, 1983. On the following day, Sidney Landry, Jr. filed a rule to show cause why the partition should not be rejected and an order suspending the homologation was signed. After a hearing was conducted on this Rule, the trial court rendered a judgment which denied Sidney Landry, Jr.’s demand for a rejection of the partition and the homologation of January 17, 1983 was reinstated. The trial court also awarded Charles Landry $600.00 in attorney’s fees for the costs associated with the litigation of this matter subsequent to the homologation on January 27, 1983. From this judgment Sidney Landry, Jr., plaintiff-appellant, perfected this devolutive appeal.

The plaintiff-appellant presents three principal issues: 1) that the original default judgment ordering the partition was not supported by the evidence; 2) that the letter of objection submitted to the court-appointed notary and filed with the proces verbal constituted an opposition to the ho-mologation as contemplated by La.C.C.P. art. 4610; and 3) that he did not receive adequate notice of the amended rule to homologate filed on December 22, 1982.

The plaintiff-appellant contends that the trial court erred in ordering the partition because the default judgment was not supported by the evidence and he accordingly asks us to reverse this judgment. The default judgment was rendered on September 15, 1976. The record indicates that the procedural requirements for a default judgment were complied with. No timely appeal was taken therefore this judgment is final and cannot be addressed on this appeal which concerns only the homologation of the partition ordered in 1976. The appellant’s failure to timely appeal from this default judgment precludes any attack thereon based upon the insufficiency of evidence upon which the judgment was rendered. Sicard v. Sicard, 426 So.2d 299 (La.App. 4th Cir.1983). The judgment rendered on September 15, 1976, which ordered the partition and appointed a notary to conduct this task is a final judgment that is not interlocutory in nature. We cannot disturb that judgment on this appeal.

The plaintiff-appellant next contends that the homologation of the partition was rendered as if he made no opposition when in fact he filed his opposition to the homologation. La.C.C.P. art. 4610 reads as follows: “An opposition may be filed at any time prior to the homologation of the partition. If no opposition has been filed, the partition may be homologated at any time after ten days from the service of the rule to show cause.” After the trial court received a certificate of no opposition on the Rule to Homologate the trial court rendered the homologation in conformity with La.C.C.P. art. 4610. The appellant contends that the letter that he submitted to the notary which raised his objections to the inventory constitute an opposition as contemplated by La.C.C.P. art. 4610. Therefore, the appellant contends, the ho-mologation was rendered over his opposition which was never considered by the court.

This argument is without merit. La.C. C.P. art. 4610 contemplates the opposition to be filed in the form of a formal pleading. This fact becomes clear after reading La.C. C.P. art. 4608. Clearly, La.C.C.P. art. 4608 contemplates a formal opposition to a Rule for Homologation which may include whatever informal objections that were previously submitted to the partitioning notary. In this case, the appellant lodged his complaint with the partitioning notary pursuant to the first sentence of La.C.C.P. art. 4608, but he failed to file his formal opposition pursuant to La.C.C.P. art. 4610. The trial court properly homologated the partition after receiving a certified assurance that there was no filed opposition to the homologation. The homologation was properly reinstated in the judgment that was appealed in this case.

Finally, the plaintiff-appellant contends that the notice requirements,, visa-vis the rule to homologate, were not complied with. Sidney Landry, Jr. was served with an original rule to homologate on November 23, 1982. Trial of this rule was scheduled for December 6, 1982, but was later continued to January 31,1983. Meanwhile, on December 10, 1982, Charles Landry filed an amended petition for homolo-gation and a second notice of trial was served on Sidney Landry, Jr. on January 4, 1983. The record reveals that the amended petition was attached to this second citation served on January 4, 1983. Therefore, all notice requirements were complied with and the homologation was effected in conformity with the law. La.C.C.P. art. 4603, 1201, 1231, 1312. The plaintiff-appellant’s contention is without merit. The trial court’s reinstatement of the homologation was correct and the trial court was within its discretion in awarding Charles Landry ' attorney’s fees in the sum of $600.00.

Finally, Charles Landry, in his brief, asks for damages caused by this frivolous appeal. Appeals are favored in the law therefore penalties will not be assessed unless clearly due. Jackson v. East Baton Rouge School Board, 348 So.2d 739 (La.App. 1st Cir.1977). The trial court awarded attorney’s fees to Charles Landry because it specifically found that Sidney Landry, Jr. filed frivolous Rules in attempts to delay the resolution of this matter. This appeal constitutes a continuation of these attempts to delay the resolution of this matter. Therefore, the penalties requested by the appellee are clearly due. In accordance with these findings we hold that this appeal is frivolous. Pursuant to La.C.C.P. art. 2164 which authorizes the assessment of penalties against a party filing a frivolous appeal, we award $1,250.00 to Charles Landry.

For the foregoing reasons the judgment of the trial court is affirmed. Plaintiff-appellant is assessed the costs of this appeal.

AFFIRMED.

      . Art. 4608. Controversy before notary effecting partition
      If there should be any controversy between the parties in the course of the proceedings before the notary effecting the partition, he shall record the objections and declarations of the parties in his proces verbal. Unless otherwise ordered by the court, such objections shall not suspend the proceedings before the notary, but any party may present his objections to the court in his opposition to the homologation of the partition.


text:
    Ronald and Deborah MECHE, Plaintiffs-Appellants, v. Elton A. ARCENEAUX and Doris Thibodeaux, Defendants-Appellees.
    No. 83-1069.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Stephen Spring, Lafayette, for plaintiffs-appellants.
    Edwards, Stefanski & Barousse, Homer E. Barousse, Jr., Crowley, for defendants-appellees.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

Ronald Meche and Deborah Meche, plaintiffs, filed suit against Elton Arceneaux, Sheriff of Acadia Parish, and Doris Thibo-deaux, as Chief Criminal Deputy, defendants, seeking to compel the defendants to accept commercial surety bail bonds furnished by the plaintiffs who are both duly licensed insurance agents. The defendants filed exceptions of no right and no cause of action urging that the plaintiffs have criminal charges pending against them and that •the commercial surety through which they furnish bail bonds, Heritage Insurance Company, is the proper party to bring suit, in that, it is the solvency and integrity of Heritage Insurance Company which the plaintiffs rely on to deliver bail bonds. The trial judge held that plaintiffs did not state a right of action in themselves to sue on behalf of Heritage Insurance Company of America. On that basis, the trial judge sustained the exception of no right of action without considering the exception of no cause of action. The plaintiffs appeal. We reverse.

The sole issue on appeal is whether the trial court erred in finding that plaintiffs have no right of action against the defendants under the stated allegations of their petition.

The plaintiffs are allegedly duly licensed insurance agents of the State of Louisiana and are engaged in the business of furnishing bail bonds through commercial sureties for criminal defendants in the State of Louisiana. Heritage Insurance Company, a commercial surety authorized to do and doing business in the State of Louisiana, has, by their recorded powers of attorney, authorized the plaintiffs to act as their agents to furnish surety bail bonds for criminal defendants on any one undertaking not to exceed $50,000.00. Certified copies of these powers of attorney are made part of the record.

On or about April 8, 1983, the plaintiffs went to the Acadia Parish jail to post the required bail bond for a pre-trial detainee through their principal, Heritage Insurance Company. The defendants allegedly refused to accept the bond furnished by the plaintiffs because there were multiple bills of information and warrants outstanding for the arrest of the plaintiffs grounded on the premise that the plaintiffs either knowingly or unknowingly wrote bonds through Cotton Belt Insurance Company and/or Guillory Bonding Service, which companies were insolvent or unable to discharge their duties as commercial sureties on bail bonds.

The plaintiffs allege that on or about April 22,1983, their counsel was personally informed by defendant, Elton Arceneaux, ' Sheriff of Acadia Parish, that the plaintiffs would not be allowed to write bonds until the district attorney tendered a letter stating to the effect that the pending charges against the plaintiffs were dismissed. Also it is alleged the defendant, Doris Thibo-deaux, Chief Criminal Deputy Sheriff of Acadia Parish, informed the plaintiffs that the only reason they were not allowed to write bonds was because they had been arrested and there were charges pending against them. Plaintiffs finally alleged that defendants have refused to accept bail bonds on behalf of defendants scheduled for prosecution in Acadia Parish obtained from commercial sureties represented by plaintiffs and the law provides them no relief by ordinary means to compel defendants to perform the ministerial duty of accepting such bail bonds.

The exception of no right of action addresses itself to whether the party it is asserted against has any interest in enforcing judicially the right alleged against the mover. LSA-C.C.P. Arts. 681 and 927. The exception is a threshold device to terminate a suit brought by one who has no interest in enforcing judicially the right asserted. Lambert v. Donald G. Lambert Construction Company, 370 So.2d 1254 (La.1979).

The defendants contend, and the trial judge agreed, that Heritage Insurance Company of America is the proper party to bring this action to compel the defendants to accept the Heritage bonds. This would be true if the defendants had refused to allow the plaintiffs to write the bonds on the ground that it was the Heritage bond itself that was in some manner deficient or unacceptable. If that was the case, then it would be the solvency and integrity of Heritage Insurance Company that would be the subject matter of the litigation, a matter in which the plaintiffs, as agents, would not have an interest in, nor have any right of action to bring. Defendants do not, in their answer, question the integrity or validity of bail bonds issued through Heritage Insurance Company nor do they question the solvency of that company or that it is duly authorized to do business under the laws of this state. The record reflects that defendants refused to accept bonds tendered by plaintiffs because of plaintiffs outstanding warrants of arrest, pending criminal charges, and prior representation of Cotton Belt Insurance Company and/or Guillory Bonding Service which were allegedly insolvent or unable to meet their obligation as commercial sureties. This finding is supported by the fact that the defendants stated same in their answer, in their brief on appeal, and as a ground for their exception.

Therefore, we find the issue to be whether the plaintiffs have a right of action to prevent the defendants from refusing any bonds furnished through them on the basis of plaintiffs’ past conduct and past representations.

The plaintiffs have alleged they, are bondsmen licensed through the Louisiana Insurance Commissioner’s Office. The plaintiffs have.shown, by a recorded power of attorney, their authority, as agents of Heritage Insurance Company, to furnish Heritage bonds. The plaintiffs have alleged that they are in the business of providing bail bonds through commercial sureties which forms a part of their livelihood. The plaintiffs have also alleged that the defendants, acting without statutory or constitutional authority, arbitrarily refused to accept any bail bonds furnished by them through qualified commercial sureties. Finally, they allege that the defendants’ action has prevented the plaintiffs from doing what they are licensed and authorized to do and has prevented them from performing a function of their livelihood.

Because of these allegations, we find the plaintiffs have stated a right of action, in themselves, to enforce judicially the rights which they assert.

We likewise find no merit to defendants’ exception of no cause of action. An exception of no cause of action concedes, for purposes of trial of the exception, the truth and correctness of the facts pleaded and may be sustained only when it is clearly shown that the law affords no remedy to anyone for the particular grievance alleged. Station v. Travelers Insurance Company, 236 So.2d 610 (La.App. 1st Cir.1970), writ denied, 256 La. 857, 239 So.2d 359 (1970), appeal after remand, 292 So.2d 289 (La.App. 1st Cir.1974). Assuming correctness of the allegations of plaintiffs’ petition, it is clear that our law affords them a remedy under the circumstances.

For the above reasons, the judgment of the trial court granting defendants’ exception of no right of action is reversed and set aside and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to defendants. Assessment of costs at the trial level are to await a final determination of this matter.

REVERSED AND REMANDED.


text:
    AMERICAN BANK & TRUST COMPANY OF LAFAYETTE, Plaintiff-Appellee, v. HUVAL FINANCIAL SERVICES, William R. Huval, George Huval, Fred Huval, Paul Huval, Roderick Roy, Tommy D. Kershaw and T.G. Welch, Defendants-Appellants.
    No. 83-1077.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Newman, Thibodeaux & Marshall, H. Gayle Marshall, Lake Charles, for defendants-appellants.
    Gordon, Arata, McCollam & Stuart, G. Tim Alexander, III, Lafayette, for plaintiff-appellee.
    Tommy Rutledge, De Quincy, for defendant-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   KNOLL, Judge.

Tommy D. Kershaw appeals a default judgment rendered against him and in favor of American Bank and Trust Company of Lafayette (hereafter American Bank) in the amount of $200,000 plus interest and attorney’s fees. Kershaw assigns as error that the trial court erred in granting the default judgment when an answer had been filed. The issue raised by the assignment is whether a default judgment is invalid when answer to the petition is filed on the same day of the confirmation of the default, but after the default is confirmed. We affirm, finding Kershaw’s answer has no legal effect since it was filed after confirmation of the default judgment.

The facts are undisputed. American Bank sued Huval Financial Services, Inc. and its six guarantors on July 7, 1983, for payment on a past due promissory note. After the note became past due, four of the guarantors filed bankruptcy proceedings and default judgments were entered against Tommy Kershaw and Paul Huval in separate proceedings. The default judgment against Kershaw forms the basis of this appeal.

Personal service was made on Kershaw on or about August 29, 1983. Since Ker-shaw did not file an answer after the legal delays elapsed, American Bank entered a preliminary default on September 16, 1983. The trial court confirmed the preliminary default on September 23, 1983, at 10:51 a.m.; Kershaw filed his answer at 12:07 p.m. on the same day.

The case at hand presents a question of law: does an answer filed on the same day but after the confirmation of a preliminary default set aside a default judgment? We find LSA-C.C.P. Art. 1002, set forth below, controlling:

“Notwithstanding the provisions of Article 1001, the defendant may file his answer at any time prior to confirmation of a default judgment against him. ” (Emphasis added.)

Further, the jurisprudence is consistent with our view. It is absolutely essential that an answer be filed before confirmation of the default in order to set aside and render invalid a default judgment. American Bank & Trust Co. v. Marbane Investments, Inc., 337 So.2d 1209 (La.App. 3rd Cir.1976). An answer filed after entry of a default judgment is of no consequence and has no legal effect whatsoever. Aswell v. U.S. Fidelity & Guaranty Co., 244 So.2d 243 (La.App. 3rd Cir. 1971).

The confirmation of a default judgment must be made by admissible and competent evidence sufficient to prove all essential allegations of the petition with legal certainty, as fully as though each allegation was specifically denied by the defendant. Perrodin v. Zander, 441 So.2d 12 (La.App. 3rd Cir.1983), writ denied, 444 So.2d 120 (La.1984); Weaver v. Weaver, 438 So.2d 1149 (La.App. 1st Cir.1983); Ducharme v. Guidry, 392 So.2d 755 (La.App. 3rd Cir.1980). It is settled that a pleading is not “filed in an action” until it has been delivered to the clerk for that purpose; therefore, a party obliged to file a pleading within a time limitation must insure actual delivery, since it is the time when the clerk receives actual delivery of the pleading that is determinative of whether a pleading has been timely filed. Squatrito v. Barnett, 338 So.2d 975 (La.App. 4th Cir.1976).

In the present case, the evidence supports sufficient proof of the allegations set forth in the petition; pertinent are the promissory note, the unlimited continuing guaranty signed by Kershaw, and the affidavit of correctness. The record further shows that the note is past due, that Ker-shaw received personal service, and that a preliminary default judgment was entered against Kershaw.

Kershaw argues that the record reflects he filed an answer prior to confirmation of the default judgment. We have carefully reviewed the record and it is clear that Kershaw’s answer was filed after confirmation of the default judgment.

Kershaw further contends that his answer was filed timely because he mailed it to counsel for American Bank before September 23, 1983, as shown on the certificate of service dated September 22, 1983, attached to the answer. A certificate of service upon opposing counsel is not considered a timely filing. Squatrito, supra.

For the foregoing reasons, we find the default judgment was properly entered, therefore, the judgment of the trial court is affirmed. All costs of this appeal are assessed to defendant-appellant, Tommy D. Kershaw.

AFFIRMED.


text:
    Jimmy James PELLERIN, Plaintiff-Appellant, v. LOUISIANA HEALTH SERVICE AND INDEMNITY COMPANY, Defendant-Appellee.
    No. 83-1090.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Robert J. Caluda, New Orleans, Anatole J. Plaisance, Baton Rouge, for plaintiff-appellant.
    Paul J. Hebert, Sonnier & Hebert, Abbe-ville, for defendant-appellee.
    Before DOUCET, LABORDE and YEL-VERTON, JJ.
   DOUCET, Judge.

Plaintiff-appellant brought this action individually and on behalf of a class seeking to recover benefits under a hospitalization insurance policy issued by Louisiana Health Services and Indemnity Co. (hereinafter referred to as Blue Cross). The defendant filed a peremptory exception of improper use of class action. The plaintiff appeals the trial court’s judgment which sustained the exception and dismissed the suit.

Mr. Pellerin is the beneficiary of a hospitalization insurance policy issued by Blue Cross. Under the terms of the policy Blue Cross agreed to pay hospitalization costs incurred by the plaintiff except for costs incurred for treatment of alcoholism or drug addiction. This claim is based upon costs incurred for treatment received by the plaintiff-appellant for alcoholism and alleged psychological problems at the Fountain Lake Treatment Center in Albert Lea, Minnesota. The plaintiff petitioned that such treatment came within the coverage of the insurance policy and Blue Cross responded with the assertion that this treatment was for alcoholism and as such was excluded from the policy. The plaintiff then amended his petition seeking a class action on behalf of anyone with the same policy that may have been hospitalized for alcoholism. The defendant filed a peremptory exception of improper use of class action. The trial court sustained the exception. In its written reason for judgment the trial court said:

“In this case, the Court feels that the peremptory exception should be maintained, and the class action suit dismissed, reserving to the plaintiff, however, his right to proceed individually against the defendant. Each potential member of the alleged class is connected to the defendant insurance company by a separate policy. Any denials of benefits to these persons would be based upon those separate policies and the particular factual situations making different each individual claim. These persons are not prejudiced by the denial of a class action as each may pursue their possible remedies individually. The first decision rendered will have little or no precedential value, as each case will be based on somewhat, if not substantially different facts. Inconsistent rulings in the separate adjudications will be due to these different facts, not to inconsistent readings of the law.”

The appellant contends that the trial court erred in failing to recognize the predominance of a common question in the class. Also the appellant contends that the trial court erred in not affording sufficient emphasis to the likelihood of injustice resulting from inconsistent adjudication if the class action is barred.

La.C.C.P. articles 591 and 592 provide that a class action procedure is available when the following requirements are present: (1) a class so numerous that join-der is impractical; (2) the joinder as parties to the suit of one or more parties who are (a) members of the class, and (b) so situated as to provide adequate representation for absent members of the class; and (3) a common character between the rights of the representatives of the class. Stevens v. Bd. of Trustees of Police Pension Fund of City of Shreveport, 309 So.2d 144 (La.1975); McCastle v. Rollins Environmental Services, 456 So.2d 612 (La.1984).

The appellant has failed to demonstrate his satisfaction of these criteria. There is nothing in the record to suggest that other potential claimants exist except for the bare allegation that there are perhaps other people who might sue on the same policy issued by Blue Cross. Therefore it is impossible to determine the impracticality of joining other parties to the suit or that a class of similarly situated parties actually exist. More importantly, the claim lacks a truly common character. This suit is based on an insurance policy and any denial of coverage is contingent on the particular facts of each claim. In fact, the appellee argues that it has denied only this particular claim for reasons unique to this claim. The insurers will have different reasons for refusing to pay the benefits in each case. In such a situation a class action is inappropriate and unavailable. Louette v. Security Industrial Insurance Co., 361 So.2d 1348 (La.App. 3rd Cir.1978), writ denied 364 So.2d 564 (La.1978).

Finally, there is nothing in the record to suggest that there is a likelihood of injustice if such potential claimants of this type of policy institutes his own action for recovery of denied benefits. The trial court correctly noted that inconsistent rulings in separate adjudication will result from differing factual situations and not from inconsistent interpretations of the law. In short, the law is clear with respect to adjudicating claims of denied insurance benefits in these situations. Different results will be attributable to differing claims.

The appellant’s argument of general fairness and equity do not overcome these listed obstacles to the availability of class action in this case. Accordingly, we affirm the trial court’s judgment that sustained the defendant’s peremptory exception of improper use of class action. Plaintiff-appellant is assessed the costs of this appeal.

AFFIRMED.

      . La.C.C.P. articles 591 and 592 state:
      "Art. 591. Prerequisites
      A class action may be instituted when the persons constituting the class are so numerous as to make it impracticable for all of them to join or be joined as parties, and the character of the right sought to be enforced for or against the members of the class is:
      (1) Common to all members of the class; or
      (2) Secondary, in the sense that the owner of a primary right refuses to enforce it, and a member of the class thereby becomes entitled to enforce the right.
      Art. 592. Representation
      One or more members of a class, who will fairly insure the adequate representation of all members, may sue or be sued in a class action on behalf of all members.”


text:
    Anna Louise RANDELL, Plaintiff-Appellee, v. Lester PRINCE, Defendant-Appellant.
    No. 83-1094.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Marion Overton White, Opelousas, for defendant-appellant.
    Edward J. Marquet, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, GUIDRY and KNOLL, JJ.
   GUIDRY, Judge.

In this suit plaintiff-appellee sought to recover damages resulting from an automobile accident which occurred in the City of Opelousas, St. Landry Parish, Louisiana, on November 7, 1981. The defendant-appellant is a resident of St. Landry Parish, Louisiana. Plaintiff-appellee brought suit in the Parish of Lafayette, Louisiana. In her original petition plaintiff averred that the accident occurred on “Railroad Avenue, Lafayette, Louisiana, near its intersection with Common St.”. Defendant filed an answer to plaintiffs petition generally denying the allegations thereof. Subsequent to the filing of answer, the plaintiff filed a supplemental and amending petition reiterating the allegations of her original petition but alleging that the accident occurred on “Railroad Avenue, Opelousas, Louisiana, near its intersection with Common St.”. Thereafter, defendant-appellant filed a pleading styled “Motion for Summary Judgment” seeking dismissal of this action on the ground that the venue was improper. The trial court, treating the pleading filed by appellant as an exception of venue, overruled same concluding in oral reasons as follows:

“... It is my appreciation of the Civil Code of Procedure, after having thoroughly reviewed all of the exceptions, that defendant in answering the lawsuit made a general appearance. Venue, in this case, in a personal injury lawsuit, is not jurisdictional, and therefore, as I appreciate the law, the filing of an answer was tantamount to waiving the objection to venue, and the Court will therefore proceed with the hearing of this matter.”

After trial of the merits, judgment was rendered in favor of plaintiff and against defendant for the sum of $500.00 plus legal interest from date of judicial demand and all costs. Defendant appeals.

The sole issue on appeal is whether the trial court erred in ruling that defendant had waived his objection to venue.

Defendant argues that the question of venue was not an issue when the answer was filed, it only became an issue when the plaintiff filed an amended petition. Defendant contends that venue cannot be waived before it is made an issue by the pleadings. We disagree.

At the outset, we observe that the Fifteenth Judicial District Court for the Parish of Lafayette, Louisiana, was vested with subject matter jurisdiction of this case. La.Const. of 1974 Art. V, Sec. 16.

It is well established that venue is waivable in all cases, except those actions where venue is made jurisdictional by specific articles of our Code of Civil Procedure, and that all objections to venue are raised by the declinatory exception which shall be filed before the answer. Stutts v. Liberty Mutual Insurance Co., 416 So.2d 1326 (La.App. 3rd Cir.1982); La.C.C.P. Arts. 44, 925 and 928.

It is evident that a timely filed exception to venue would have been maintained in this case. La.C.C.P. Arts. 42 and 74. Defendant’s argument that venue cannot be waived before it is made an issue by the pleadings is simply without merit. An objection to venue is cognizable following institution of suit. La.C.C.P. Art. 44. Plaintiffs original petition, upon being filed, was amenable to an exception of venue as, although the allegation was made therein, that the accident occurred in Lafayette Parish, defendant was certainly cognizant that he was a resident of St. Landry Parish and that the accident had actually occurred in that parish. The defendant failed to follow the statutory requirements of our Code of Civil Procedure, i.e., filing the declinatory exception of improper venue before answering. Venue was waived in this case.

For the above and foregoing reasons, the judgment of the trial court is affirmed at defendant-appellant’s cost.

AFFIRMED.


author: CUTRER, Judge.

text:
    David E. DURAND, Plaintiff-Defendant-in-Rule-Appellant, v. Sharon B. DURAND, Defendant-Plaintiff-in-Rule-Appellee.
    No. 84-14.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.

      Ford & Nugent, Howard N. Nugent, Jr., Alexandria, for plaintiff-defendant-in-Rule-appellant.
    Wilbert Saucier, Jr., Pineville, for defendant-plaintiff-in-Rule-appellee.
    Before FORET, CUTRER and CULPEPPER, JJ.

      William A. ad hoc.

   CUTRER, Judge.

This appeal emanates from a trial court judgment ordering an increase of the child support payments by the father and, in addition, requiring him to pay all past, present and future medical expenses of the child. The father appeals and we affirm.

David Earl Durand and Sharon Durand were married on December 11, 1978, which union resulted in the birth of one child, David Devener Durand. In June 1980, David Devener was involved in a serious accident that left him severely brain damaged. In April 1982, the Durands were judicially separated. The judgment awarded custody of David Devener to defendant and plaintiff was ordered to pay $200.00 per month child support. Since that time, the financial burden of caring for David has become even greater. Plaintiff has carried David on his health insurance policy, but has not otherwise helped with David’s medical expenses.

On May 20, 1983, plaintiff filed suit for divorce. Defendant filed an answer, recon-ventional demand and a rule seeking an increase in child support and payment of all medically related expenses for the child.

The trial court rendered judgment increasing the child support payments from $200.00 to $375.00 per month and ordered plaintiff to pay all past, present and future medical expenses of the child.

Plaintiff’s appeal presents two issues:

(1) Whether the trial court abused its discretion in allowing defendant an increase in child support; and
(2) Whether the trial court was in error in assessing the full responsibility of all the medical expenses to plaintiff.

INCREASE IN CHILD SUPPORT

Civil Codfe art. 227 imposes on parents a mutual obligation of support, maintenance and education of their children. The degree of support is determined by the needs of the child, as well as the circumstances of those who are obligated to pay it. Richardson v. Richardson, 428 So.2d 1326 (La.App. 3rd Cir.1983); Goodrich v. Goodrich, 421 So.2d 962 (La.App. 3rd Cir.1982), writ den., 427 So.2d 1209 (La.1983); Duplantis v. Monteaux, 412 So.2d 215 (La.App. 3rd Cir.1982). In analyzing the needs of the child, the courts must consider his unique medical problems.

Cf. Guinn v. Guinn, 405 So.2d 620 (La.App. 3rd Cir. 1981).

A trial court is possessed of considerable discretion in deciding whether to modify child support awards. Such awards will not be reversed except for an abuse of this discretion by the trial court. Dupuy v. Dupuy, 421 So.2d 458 (La.App. 3rd Cir. 1982); Baer v. Simon, 334 So.2d 796 (La.App. 3rd Cir.1976).

Plaintiff has been employed as an installer/repairman for South Central Bell for a period of ten years. His gross salary at the time of the hearing in September 1983, was $1,887.50 (net $1,350.40) per month. However, his salary does not actually reflect his áctual earnings because he earns a considerable amount of money in overtime pay. His 1982 income tax return shows that his actual earnings, which include his overtime pay, were $34,341.00 (net $27,-057.53).

Plaintiff lists his living expenses as $2,338.55 per month, allotting $200.00 of this as expenses for his son’s upkeep.

Defendant is employed by the Tioga Medical Clinic earning a gross pay of $600.00 (net $500.00) per month. Her salary combined with her child support payment gives her approximately $700.00 a month.

Defendant lists expenses of $1,743.33 per month. She lists $468.33 as expenses for maintenance of her son.

Under LSA-C.C. art. 227, both parents owe a general obligation to support their children. The trial judge found that defendant had met this obligation. He stated, in part:

“She has tried very hard to meet this obligation. She has been able to take only a part-time job, because she must spend so much time at home caring for David. The home care given to David is to be considered part of her contribution to David’s support. See Cowen [v. Cowen] supra [375 So.2d 118 (La.App. 3rd Cir.1979)]. In addition, David’s mother has a little over $700.00 at her disposal every month. Much of this money is used to meet David’s needs, however, it is still far from enough. This Court finds that Mrs. Durand gives ample support to David, both financially and otherwise .... ”

On the other hand, plaintiff is only giving $200.00 monthly child support as ordered by the 1982 separation decree. He does not contribute in any other way to the support of the child. The trial court stated in part:

“Mr. Durand has a good job. He nets $1350.40 a month. It is true that, on the day this rule was heard, Mr. Durand was on strike and therefore was not receiving any income. However, courts are to consider not only a parent’s actual income, but his income potential. Guinn v. Guinn, supra. This Court believes Mr. Durand’s income potential is at least $1350.40 per month. Mr. Durand is therefore capable of paying additional monthly child support. It is therefore ordered that Mr. Durand’s monthly child support payments be increased to $375.00 per month.”

The record fully supports the trial court in its ruling raising the child support.

MEDICAL EXPENSES

The second issue presented in the appeal concerns the imposition of present and future medical expenses upon plaintiff. The support obligation of LSA-C.C. art. 227 includes the obligation to pay medical bills. Gaspard v. Breaux, 413 So.2d 288 (La.App. 3rd Cir.1982). Thus, in determining how much of the medical expenses each parent owes, the court must look to the needs of the child as well as the circumstances of those who are obligated to pay it. Goodrich, supra; Duplantis, supra. The trial court stated in part:

“[M]rs. Durand is providing all the support she possibly can. This will be true even with the increase in monthly child support just granted. Mr. Durand, on the other hand, is in a position to provide more. Therefore, it is ordered that Mr. Durand pay all the medical and hospital expenses incurred on behalf of his minor son, David Devener Durand.”

After a review of the record, we conclude that plaintiff’s income is sufficient to support the trial court’s findings that he should be liable for his son’s medical expenses as well as the increase in child support. We find no abuse of discretion by the trial court. Dupuy, supra; Baer, supra.

For these reasons, the judgment of the trial court is affirmed. Plaintiff-appellant, David Durand, is to pay the costs of this appeal.

AFFIRMED.


author: FORET, Judge.

text:
    STATE of Louisiana, Through DHHR, in the Interest of Johnny DUBROC, Plaintiff-Appellant, v. Johnny COLE, Sr., Defendant-Appellee.
    No. 84-15.
    Court of Appeal of Louisiana, Third Circuit.
    Dec. 12, 1984.
    Carl Koehler, Alexandria, for plaintiff-appellant.
    George L. Higgins, III, Pineville, for defendant-appellee.
    Before FORET, CUTRER and CULPEPPER , JJ.

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

   FORET, Judge.

The plaintiff, State of Louisiana, through the Department of Health and Human Resources (DHHR) has appealed the dismissal of its suit against the defendant, Johnny Cole, Sr. by the granting of an exception of prescription filed by the defendant. The issues presented by DHHR in this appeal are:

(1) Is LSA-C.C. Art. 209 controlling in this suit;
(2) Is the equitable principle of laches applicable in this proceeding; and,
(3) If it is, was laches established in the trial court?

We reverse the judgment of the trial court.

The plaintiff, DHHR, filed suit against the defendant, Johnny Cole, Sr., to establish his paternity of the minor child, Johnny Dubroc. The suit was filed on April 15, 1983 by DHHR pursuant to the authority granted to it in LSA-R.S. 46:236.1(F). That statute says, in pertinent part that:

“F. The department, except when it is not in the best interest of the child, may without the necessity of written assignment, subrogation, tutorship proceedings, separation proceedings, or divorce proceedings, take direct civil action, including actions to establish filiation against an alleged biological parent notwithstanding the existence of a legal presumption that another person is the parent of the child solely for the purpose of fulfilling its responsibility under this Section, in any court of competent jurisdiction, to obtain an order, judgment, or agreement of support against the responsible person in any case in which an AFDC grant has been made for or on behalf of a child or children or in any case in which the department has agreed to provide services for a non-AFDC applicant. ..”

The facts, as alleged by DHHR, are that Johnny Cole, Sr. maintained a sexual relationship with the child’s mother, Annie Du-broc, from 1975 through 1978, and that the child was conceived in 1977. The child was born on January 25, 1978. Annie Dubroc first applied to DHHR for aid on October 3, 1977. DHHR conducted an investigation as to the paternity of the child subsequent to its birth, and at that time the defendant signed a notarized statement denying that he was the father of Johnny Dubroc. No other action was taken by DHHR between 1978 and the filing of this suit in 1983.

In the absence of written reasons for judgment in the record, we cannot make any assumptions as to the trial judge’s reasons for sustaining the defendant’s exception of prescription, but we find that the trial court was clearly wrong in doing so.

We do not feel that the equitable doctrine of laches is applicable to a suit of this nature as our Civil Code clearly provides a prescriptive period for civil proceedings to establish filiation. Therefore, we will not consider the issue of laches in this case.

LSA-C.C. Articles 208 and 209 say:

“Art. 208. Requirement to prove filiation
In order to establish filiation, a child who does not enjoy legitimate filiation or who has not been filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must institute a proceeding under Article 209.”

“Art. 209. Proof of filiation

A. A child not entitled to legitimate filiation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged living parent by a preponderance of the evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
B. A child not entitled to legitimate fili-ation nor filiated by the initiative of the parent by legitimation or by acknowledgment under Article 203 must prove filiation as to an alleged deceased parent by clear and convincing evidence in a civil proceeding instituted by the child or on his behalf within the time limit provided in this Article.
C. The proceeding required by this Article must be brought within one year of the death of the alleged parent or within nineteen years of the child’s birth, whichever first occurs. This time limitation shall run against all persons, including minors and interdicts. If the proceeding is not timely institut ed, the child may not thereafter establish his filiation.
D. The right to bring this proceeding is heritable.”

(Emphasis added.)

We are of the opinion that these provisions of our Civil Code govern all civil proceedings instituted to establish filiation by or on behalf of a child. No exception is made for a filiation action instituted by DHHR, and nowhere can we find some other law applicable to the issue before us. It would be an anomalous situation to allow a plea of prescription against DHHR, while the child or anyone else on his behalf could still proceed with another suit to establish filiation. Prescription serves to bar the assertion of some right in our courts and, in this type of proceeding, a child or someone on his behalf has nineteen years from the child’s birth or one year from the date of the alleged parent’s death, whichever occurs first, within which to institute this proceeding. It is our understanding from the record that the child is now six years old, and his alleged parent, Johnny Cole, Sr., has not died; therefore, this action has not prescribed.

Accordingly, the judgment of the trial court sustaining defendant’s exception of prescription is hereby reversed, and this case is remanded for proceedings in accordance with the reasons expressed herein.

All costs of this appeal are assessed against defendant.

REVERSED AND REMANDED.

      . “AFDC” is defined as aid to families with dependent children. LSA-R.S. 46:236.1(A)(2).