text:
    Madalyn COCHRANE v. WINN DIXIE OF LOUISIANA, INC.
    No. CA-1311.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Joseph W. Thomas, Ernest Caulfield, New Orleans, for plaintiff-appellant.
    Dan R. Dorsey, River Ridge, for defendant-appellee.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   KLEES, Judge.

This suit was brought by the plaintiff-appellant, Madalyn Cochrane, against Winn Dixie Louisiana, Inc., after she was hit in the head by two two-pound bags of carrots in the produce department at a Winn Dixie grocery store. The case was tried before a jury which returned a verdict in favor of Winn Dixie. The jury’s verdict was subsequently made the judgment of the Court. From this adverse judgment Mrs. Cochrane appeals.

The issues presented on appeal are (1) that the jury instructions on causation and aggravation of a pre-existing condition when combined with the jury verdict form used, forced the jury not to consider whether Winn Dixie’s negligent act was the cause in fact of the plaintiff’s injuries because that negligence aggravated a pre-ex-isting condition, and (2) that the jury’s findings that Winn Dixie was at fault, but that that fault was not the cause in fact of the plaintiff’s injuries are clearly erroneous. For the following reasons, we affirm the judgment of the trial court.

The plaintiff was shopping in a Winn Dixie store on September 5, 1980 with her daughter when she was injured. While bending over to select some bell peppers in the produce section she was hit on the head by two two-pound bags of carrots which fell from a cart stacked with produce which was being pushed by a Winn Dixie employee. The plaintiff testified that as a result of the incident, her head began to hurt and she was dizzy. She went home, took 2 BC’s and stayed in bed. The next day, Saturday, she remembered feeling dizzy upon attempting to get out of bed. On Sunday, her husband persuaded her to get up and have breakfast with the family. While at the table the plaintiff began to feel strange and testified that she heard a voice telling her that she would die soon. On Monday, still feeling bad, the plaintiff went to work. She attempted to see her regular internist, Dr. Arnold Lupin, on Tuesday, but was unable to. Dr. William Stallworth, who was recommended by a friend of the plaintiff, agreed to see her. Dr. Stallworth insisted that she enter the hospital right away, so she checked in that Thursday evening at Hotel Dieu Hospital. The plaintiff was treated by Dr. Stallworth at Hotel Dieu for approximately a week. The plaintiff was also seen by Dr. Lynn Simon, a psychiatrist, while she was in the hospital.

Subsequent to this hospitalization, the plaintiff continued to see her internist, Dr. Lupin, who hospitalized her for approximately a week some months after the incident at Winn Dixie. Dr. Lupin suggested to the plaintiff that she seek professional help other than himself for her anxiety. In October of 1981 the plaintiff sought help from Dr. Wakeman at the Ochsner Stress Clinic. The plaintiff was treated at Ochs-ner for four weeks as an inpatient and thereafter on an outpatient basis for several months. The plaintiff began treatment with Dr. Morris Jeff, a social worker, in June of 1982 and then with Dr. C.B. Scrig-nar, a psychiatrist, in October of 1982, by whom she was being treated at the time of trial.

Mrs. Cochrane denied having any similar problems prior to the Winn Dixie incident, but her hospital records indicate that she had complained of similar symptoms on prior occasions. Dr. Lupin had seen her in 1974 when she complained of a smothering in her chest, difficulty sleeping, and weight loss. He placed her on Triavil, a tranquilizer, and diagnosed her problem as a biloral spasm and mild anemia. Dr. Lupin treated the plaintiff continuously through the date of the Winn Dixie incident, but did not make any association between the illness he treated her for and the incident.

Dr. Stallworth, who first saw the plaintiff on September 11, 1980, found no trauma to her head and could not relate the Winn Dixie incident to the symptoms complained of. He did not know what caused the onset of the anxiety the plaintiff was suffering from. While the plaintiff was under Dr. Stallworth’s care at Hotel Dieu, she was seen by Dr. Lynn Simon.

Dr. Simon saw the plaintiff on one occasion and he diagnosed her as having had a neurotic anxiety reaction and indicated that there was a hysterical component to her personality. He also felt that the injury sustained at Winn Dixie was the proximate cause of the physical injury, that is, the headaches and subsequent pain, and was also a direct cause of the resultant anxiety neurosis. Dr. Simon had no history other than that given by the plaintiff and because she was not under psychiatric care, there was no evidence that she was suffering from any ongoing physical or mental problems at the time of the incident.

Approximately one year after the Winn Dixie incident, the plaintiff sought help at the Ochsner Clinic. Dr. Richard Wakeman, a clinical psychologist, treated the plaintiff there. Dr. Wakeman testified that he could not connect the incident of the carrots hitting the plaintiff on the head with the problems that he treated her for. He said, “I don’t think there’s much reasonable medical probability that her symptoms were an outgrowth of that event.”

Dr. C.B. Scrignar, the psychiatrist who had been treating the plaintiff since October of 1982, diagnosed her as having post-traumatic stress disorder. He said that the incident at Winn Dixie was related to her anxiety condition, and in fact it precipitated her post-traumatic stress disorder. Three of the physicians who examined the plaintiff prior to Dr. Scrignar did not agree with his diagnosis.

Dr. Patricia Sutker, a clinical psychologist, saw the plaintiff in February of 1983 at which time she conducted extensive psychological testing upon her. Dr. Sutker did not agree with Dr. Scrignar’s diagnosis of post-traumatic stress disorder and she did not believe that that one incident could have caused the amount of stress and suffering, that was described by the plaintiff. Dr. Simon also disagreed with Dr. Scrig-nar’s diagnosis of post-traumatic stress disorder, as did Dr. Wakeman.

The first issue raised on appeal, the jury instructions and jury verdict form, is governed by LSA-C.C.P. art. 1793. That article says,

A. At the close of the evidence, or at such earlier time as the court reasonably directs, a party may file written requests that the court instruct the jury on the law as set forth in the requests.
B. The court shall inform the parties of its proposed action on the written requests and shall also inform the parties of the instructions it intends to give to the jury at the close of the evidence within a reasonable time prior to their arguments to the jury.
C. A part may not assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.

It is clear from our review of the record that counsel for appellant made no objection at any time to the jury instructions given. The appellant may not now assign this as error in the Court of Appeal. In Robillard v. P & R Racetracks, Inc., 405 So.2d 1203 (La.App. 1st Cir.1981) the Court said:

“The jurisprudence interpreting this procedural article holds that where a party fails to object to jury instructions prior to the jury’s retirement for deliberation, he waives any defects therein. Citing Ainsworth v. Bituminous Casualty Corporation, 379 So.2d 1187 (La.App. 3rd Cir. 1980), writ denied, 381 So.2d 1233 (La.1980)” 405 So.2d 1203, 1207.

We therefore find no merit to the appellant’s first assignment of error.

The second issue presented concerns the jury’s determination of fault and causation. The jury in this case heard testimony from fourteen live witnesses and heard the deposition of one witness read aloud in court. Of those fourteen witnesses, ten presented expert testimony concerning Mrs. Cochrane’s mental, physical and emotional health. There was a great deal of complicated medical and diagnostic evidence presented to the jury whose duty it was to assign weight and credibility to all or none of it. In Guidry v. David, 382 So.2d 250, 253 (La.App. 3rd Cir.1980), the Court said:

“It is also well settled that the jury or trial judge may, and should, assess the credibility of experts who testify at the trial, as well as that of lay witnesses, to determine the most credible and realistic evidence and the fact finder’s determination of the credibility of those witnesses will not be disturbed unless found to be clearly erroneous. Green v. State, Southwest Louisiana Charity Hosp., 309 So.2d 706 (La.App. 3rd Cir.1975); Monette v. Aetna Cas. & Sur. Co., 352 So.2d 423 (La.App. 3rd Cir.1977). After weighing and evaluating all of the medical evidence, and in most cases the lay testimony, relating to the injuries sustained by a plaintiff, the jury or trial judge may accept or reject the opinion expressed by any medical expert, depending upon how he is impressed with the qualifications and the testimony of that expert. Touchet v. Fidelity and Casualty Co. of New York, 264 So.2d 752 (La.App. 3rd Cir.1972)”

After reviewing the trial court record we cannot conclude that the jury verdict and judgment of the trial court are clearly wrong. It is well settled that a jury verdict should be maintained unless the record reflects that its conclusions of fact are not supported by the evidence, and/or its application of the law is clearly erroneous. Robillard v. P & R Racetracks, Inc., 405 So.2d 1203 (La.App. 1st Cir.1981). Accordingly, for the above stated reasons, the judgment of the trial court is affirmed. Costs of this appeal to be borne by appellant.

AFFIRMED.


source: Caselaw Access Project

author: BYRNES, Judge. KLEES, Judge,

license: Public Domain

text:
    Drew PARRAMORE v. CITY OF NEW ORLEANS and John Martin.
    No. CA 1312.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Salvadore Anzelmo, City Atty., Sharon K. Hunter, Asst. City Atty., New Orleans, for defendant-appellant.
    John B. Perry, New Orleans, for plaintiff-appellee.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

This is an appeal from a judgment against the City of New Orleans awarding damages to appellee, Drew Parramore, as a result of an automobile accident involving Parramore and a city police officer. We affirm. The facts of the case are as follows:

On July 29, 1980 Parramore was traveling south on Saint Roch Avenue in New Orleans, a divided street with a neutral ground. Parramore made a left turn at a break in the neutral ground at Law Street. As he approached the far side of the neutral ground his view of traffic traveling north on Saint Roch was blocked by tall weeds and grass growing there. As he proceeded across Saint Roch, Parramore’s vehicle was struck by a police car being operated by Officer Martin of the city police force.

Parramore sued the City and Officer Martin based on negligence and later supplemented his petition to also allege strict liability on the part of the City based on the defective condition of the neutral ground. Suit was also filed by the police officer against Parramore but that suit was settled before trial and does not form part of this appeal. The trial court ruled in favor of Parramore based on strict liability for the defective condition of the neutral ground. The City has appealed, urging that the cause of the accident was not the condition of the neutral ground but Mr. Parramore’s failure to stop for a longer period before proceeding across St. Roch Ave. The City argues that this constituted victim fault sufficient as to exonerate the City from liability under C.C. Art. 2317. We do not address this issue because we find that Officer Martin’s negligence was the cause of the accident.

There was a dispute in the trial court as to whether or not Officer Martin had sounded his siren or turned on his emergency lights as he proceeded down St. Roch Ave. before striking Parramore. The City argues that Officer Martin used both lights and sirens and that appellant was therefore at fault in failing to yield to Martin’s vehicle.

Mr. Parramore and Harold Irvin, a witness to the accident, both testified that neither lights or sirens on Officer Martin’s car were operating at the time of the accident. Officer Martin testified that both were used. Another officer, who arrived at the scene after the accident, testified that he turned off the police lights in Officer Martin’s ear.

The trial judge evidently chose to believe the plaintiff and his witness. This is a credibility evaluation which is best left to the trial judge and should not be disturbed on appeal absent manifest error. We find no such error here and therefore find that the negligence of Officer Martin in not using his siren or lights as he proceeded across St. Roch Avenue was the cause of the accident.

We further conclude that Mr. Parramore was not negligent. The evidence establishes that he stopped for a short but reasonable amount of time before proceeding down St. Roch Avenue. His view of Officer Martin’s car was blocked by the tall grass on the St. Roch neutral ground and the failure of the officer to use either audible or visual signals prevented Mr. Parramore from otherwise becoming aware of the approaching vehicle. Under these circumstances we cannot say that Mr. Parramore’s conduct was negligent.

For the foregoing reasons the judgment in favor of appellant is affirmed.

All costs of this appeal are to be borne by the appellee.

AFFIRMED.

KLEES, J., dissents with reasons.

KLEES, Judge,

dissents with assigned reasons.

I respectfully dissent. Plaintiff testified at trial that he could not see any vehicles approaching him on St. Roch Avenue (the favored street).

It is well settled that a driver entering a right of way street where the view is obstructed is under a duty to proceed with extreme caution. Continental Insurance Company v. Duthu, 235 So.2d 182 (La.App. 4th Cir.1970), writ refused, 239 So.2d 346, 256 La. 820 (1970). See also, Messina v. Bowen, et al., 415 So.2d 351 (La.App. 4th Cir.1982), writ denied, 420 So.2d 170 (La.1982).

Accordingly, I would find that the trial court was manifestly erroneous in exonerating plaintiff from contributory negligence and would reverse.


author: BYRNES, Judge.

text:
    STATE of Louisiana v. Leroy LODGE.
    No. KA 1197.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      M. Craig Colwart, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Joanne C. Marier, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   BYRNES, Judge.

Defendant was charged by Bill of Information with forcible rape, a violation of La.R.S. 14:42.1. He was found guilty by a 10-2 vote of a twelve person jury and sentenced to 20 years at hard labor. Defendant appeals asking this court to review the record of his conviction for errors patent.

We have done so and find but one error. The record reveals that the trial court failed to state the period during which defendant’s sentence would be without benefit of parole probation or suspension of sentence. La.R.S. 14:42.1 requires that “at least two years of the sentence imposed shall be without benefit of probation, parole or suspension of sentence.” In this case the trial judge’s failure to designate how much of the defendant’s sentence would be without these benefits renders the sentence unlawfully lenient. See State v. Telsee, 425 So.2d 1251 (La.1983). That case involved the same crime as the present case and held that;

By law at least two years of any forcible rape sentence must be without parole, probation or suspension of sentence. La. R.S. 14:42.1. Accordingly, the sentence must be amended to withdraw these benefits for two years of [defendant’s] sentence.”

This ruling has been placed in question by a per curiam opinion of the Supreme Court in State v. Napoli, 437 So.2d 868 (La.1983) where it was held that “when a defendant alone seeks review of a conviction and sentence the Court of Appeal should review only those errors raised by the defendant and any patent errors favorable to the defendant”. However, the opinion in Napoli was a per curiam ruling on a writ application while that in Telsee was the result of a full fledged appeal. We therefore choose to follow Telsee and accordingly amend defendant’s sentence to reflect that the first two years shall be without benefit of parole, probation or suspension of sentence. La.R.S. 14:42.1.

We have also reviewed the record to determine if the evidence against the defendant was sufficient to support a conviction. The victim testified that the defendant took her home after a party and then refused to leave'when she asked him to. When she screamed, the defendant pointed a gun at her and threatened to kill her if she did not keep quiet and cooperate. The victim further testified that after the defendant raped her, he fell asleep and she snuck out of the apartment, went to a friend’s house and called the police. The testimony of the friend corroborated this part of the victim’s story. The officer who arrived at the scene testified that the defendant was found asleep in the victim’s bed with a gun under his pillow. Medical tests confirmed the presence of seminal fluid and spermatoza.

The defendant testified on his own behalf. His version of the incident was that he and the victim had a special relationship and had had sexual relations in the past. He further testified that on the night of the incident in question the victim voluntarily had intercourse with him and had asked him to move in with her. Defendant contends that because he refused the victim fabricated the story of the alleged rape.

The defendant was convicted of forcible rape which is defined as:

“A rape committed when the anal or vaginal sexual intercourse is deemed to be without the lawful consent of the victim, because the victim is prevented from resisting the act by force or threats of violence under circumstances where the victim believes such resistance would not prevent the rape”. R.S. 14:42.1.

In this case the testimony of the victim was that she was forced to have vaginal sexual intercourse without her consent and that she was prevented from resisting by the threat of force in the form of a gun placed in her mouth and a threat to blow her brains out. The testimony of the defendant was that the victim voluntarily consented to sexual intercourse and that the victim was attempting to frame him for the rape because he refused to move in with her. The jury chose to believe the version of the victim.

We conclude that any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, could find all the essential elements of the offense were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

We therefore affirm the defendant’s conviction and amend his sentence to provide that the first two years will be without benefit of parole, probation or suspension of sentence.

AMENDED AND AFFIRMED.


author: CIACCIO, Judge. BARRY, Judge,

text:
    GIBBS CONSTRUCTION CO., INC. v. BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY and Agricultural and Mechanical College.
    No. CA 1283.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Thomas E. Gibbs, Baton Rouge, for appellant.
    Rutledge C. Clement, Jr., C. Scott Jackson, Phelps, Dunbar, Marks, Claverie & Sims, New Orleans, for appellees.
    BARRY, AUGUSTINE and CIACCIO, JJ.
   CIACCIO, Judge.

Plaintiffs, Gibbs Construction Co., Inc. and Lawrence C. Gibbs, filed suit alleging that defendant, through the administrative office of the University of New Orleans, improperly awarded a construction contract for alterations to the university’s graduate school building. The trial court maintained defendant’s peremptory exceptions of no cause of action and no right of action, and dismissed plaintiffs' suit, with prejudice and at their cost. From this judgment plaintiffs appeal. We affirm.

The peremptory exception raising the objection that the petition fails to state a cause of action tests the legal sufficiency of plaintiffs’ petition and questions whether the law affords plaintiff any remedy whatsoever under the allegations of his petition. The exception is triable solely on the face of the petition and any annexed documents or exhibits. La.C.C.P. art. 931. All well-pleaded allegations are accepted as true, and any doubts must be resolved in favor of the sufficiency of the pleading to state a cause of action. Hero Lands Co. v. Texaco, Inc., 310 So.2d 93 (La.1975); Guy Scroggins, Inc. v. Emerald Exploration, 401 So.2d 680 (La.App. 3d Cir.1981).

In ruling upon defendant’s exception the trial court considered the facts as pleaded in plaintiffs’ petition and also a “Stipulation of Facts” filed jointly by the parties “solely for the purpose of the Exceptions of No Right of Action and No Cause of Action filed on behalf of the defendant.” Plaintiffs apparently intended the “Stipulation of Facts” to be annexed to the petition and for those facts to be considered as if they had been pleaded therein, as plaintiffs have raised no objection to the trial court’s consideration of the stipulated facts and have referred to the stipulated facts in their appellate brief. We will, therefore, include the stipulated facts as part of the well-pleaded allegations accepted as true for our consideration of the plea of no cause of action.

The Facts

The University of New Orleans advertised for public bids to construct certain alterations to the university’s graduate school building. The contract documents included a date, time and location for a pre-bid conference, and provided that “no bid shall be accepted from any contractor who does not have a responsible representative attend this meeting.” Only one contractor attended the pre-bid conference. That contractor submitted a bid and was awarded the contract. Gibbs Construction Co., Inc. did not have a representative at the pre-bid conference.

Subsequent to the pre-bid conference and without the knowledge or consent of the University, the project architect contacted Gibbs Construction Co. and requested that the company submit a bid. The architect represented to the company that it could submit a bid although it did not have a representative at the pre-bid conference. The architect even lined through that portion of the documents requiring attendance at the conference.

In reliance upon the architect’s representations, but without communicating with anyone at the University, Gibbs Construction Company, Inc. submitted a bid. Gibbs’s bid was not accepted by the University, although it would have been the lowest, because Gibbs had not had a representative at the pre-bid conference. The contract was awarded to the lowest responsible bidder with a representative in attendance at the pre-bid conference, although this bid was higher than Gibbs’s bid would have been.

Plaintiffs filed suit on the theory that Gibbs Construction Co., Inc. was the lowest responsible bidder and should have been awarded the contract.

The Law

The statutory authority concerning .the advertisement and letting of public contracts can be found in La.R.S. 38:2212. The statute provides in paragraph A that all public work meeting the requirements for public bids “shall be advertised and let by contract to.the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised.” The statute furnishes general requirements for advertising.

Concerning those projects for which the statute requires advertisement, bidding in accordance with the advertisement is essential to satisfy the purposes for which the public bid laws were enacted. If public bidding is an honest attempt at getting the best value for tax moneys, then every bidder must be held bound by the terms of the advertising. Jefferson Parish School Board v. Rowley Company, Inc., 350 So.2d 187 (La.App. 4th Cir.1977), writ denied, 352 So.2d 238 and 239 (La.1977). To allow anything less than a bid conforming on its face to the advertised specifications would constitute an open invitation to the kind of impropriety and abuse the public bid laws were designed to prevent. Williams v. Board of Supervisors of L.S.U., 388 So.2d 438 (La.App. 2d Cir.1980).

To state a cause of action plaintiffs’ petition should allege facts which indicate that the contract was arbitrarily let to someone other than the lowest responsible bidder. To do this, plaintiffs need to allege facts which indicate the existence of a responsible bidder who bid lower than the bidder to whom the contract was awarded, and who submitted his bid in compliance with the requirements set forth in the bid advertisement. The facts pleaded by plaintiffs do not satisfy these requirements.

The facts alleged by plaintiffs indicate that the contract was awarded to the only responsible bidder who bid in compliance with the terms of the advertisement. The “bid” submitted by Gibbs Construction Co. did not qualify as an acceptable bid because Gibbs was not represented at the pre-bid conference as required by the advertisement. As a result, the University refused to consider the “bid.” We find this action by the University to have been proper. Under these circumstances, Gibbs’s “bid” never obtained the status of a bid which could compete with any other bids, because it did not qualify for consideration. Absent an acceptable bid, Gibbs Construction Co. does not qualify as a bidder, and cannot be considered as a potential recipient of the contract to be awarded.

Gibbs Construction Co., Inc. is the only contractor alleged to have bid lower than the bidder to whom the contract was awarded. The facts alleged by plaintiffs indicate that Gibbs did not qualify as a bidder because it failed to comply with the pre-bid procedures mandated by the bid advertisement, thus preventing them from submitting a bid which could be considered by the University. Accordingly, plaintiffs’ petition fails to state a cause of action.

Plaintiffs argue that Gibbs Construction Co.’s bid was acceptable and should have been considered by the University because the architect had requested the bid and had represented that the bid would be acceptable. Plaintiffs argue that the architect was the agent of the University and the University should be bound by his representations. Further, plaintiffs argue that the University has the power to waive the requirement of attendance at the pre-bid conference.

The facts as alleged by plaintiffs do not indicate the existence of any type of agency relationship between the University and the project architect concerning the advertising and letting of the contract. Further,' even assuming the University had the power to waive attendance at the pre-bid conference, the University was not obligated to make this waiver, and apparently did not waive the requirement as indicated by the non-acceptance of Gibbs’s “bid.” This action by the University was not arbitrary, but was in accord with the advertisement.

Considering the facts alleged by plaintiffs, we find that defendant’s peremptory exception raising the objection of no cause of action was properly maintained. La.C.C.P, art. 934 provides, however, that when a peremptory exception, such as no cause of action, has been maintained, plaintiff is entitled to the opportunity to amend if the petition can be amended to assert a cause of action. The right to amend is not so absolute as to be permitted when amendment would constitute a vain and useless act. Louisiana and Southern Life Ins. Co. v. New Orleans Steamship Association, 384 So.2d 594 (La.App. 4th Cir.1980); Woolridge v. Mouledoux, 398 So.2d 1272 (La.App. 4th Cir.1981); Perkins v. Desrochers, 359 So.2d 323 (La.App. 4th Cir.1978). Neither in brief nor oral argument have plaintiffs contended that they can allege additional facts which could state a cause of action against defendant. Under the circumstances, a remand for the purpose of permitting an opportunity to amend would be a vain and useless act.

Having concluded that the petition fails to state a cause of action, and that the deficiency cannot be cured by amendment, the result is that the action shall be dismissed. La.C.C.P. art. 934. Consequently, we pretermit any discussion as to whether plaintiffs have a right of action, as this issue is now moot.

Accordingly, the judgment of the trial court is affirmed. All costs are to be paid by appellants.

AFFIRMED.

BARRY, J., dissents with reasons.

BARRY, Judge,

dissenting.

Plaintiffs have alleged facts which, if taken as true, would be sufficient to prove that the contract was arbitrarily awarded to someone other than the lowest bidder.

Section 20(C) of the contract provided: The owner reserves the right to reject any and all bids, waive any or all infor-malities or accept any bids which in his opinion appear to be best. Owner reserves the right to accept any alternates that may serve as best interest.

Plaintiff alleges the architect was the University’s agent and that he waived the requirement of attendance at the pre-bid conference. Whether or not there was such an agency with authority to waive this condition is an issue for the merits. If accepted as true, plaintiff was the lowest responsible bidder.

Plaintiff has clearly stated a cause of action.

I respectfully dissent.


author: CIACCIO, Judge.

text:
    Danielle Lowe, wife of Wilfred A. GRUSICH, Jr. v. Wilfred A. GRUSICH, Jr.
    No. CA 1255.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Harry R. Cabral, Jr. and H. Craig Cabral, Cabral & Cabral, Metairie, for appel-lee.
    Emile L. Turner, Jr., Turner, Young & Hebbler, New Orleans, for appellant.
    Before BARRY, AUGUSTINE and CI-ACCIO, JJ.
   CIACCIO, Judge.

The parties in this action are husband and wife. Defendant-husband has appealed from a district court judgment decreeing that a certain list of moveable property, the list designated as “Mrs. Grusich No. 6”, is the list to be used in consummating the partition of community property. We affirm.

On October 27, 1982, the parties appeared in court for a hearing involving a number of issues, one of which involved the partition of community property. Before the hearing began the parties conferred over a list of moveable property and were able to agree upon a partition of that property. Agreement was reached on other issues and an amicable settlement resolving all issues was confected.

Both parties took the witness stand and testified to the terms of their agreement. In their testimony the parties referred to and identified a list of property which had been used in reaching the agreement. The hearing concluded with wife’s counsel agreeing to draw up an act of partition in accordance with the settlement terms to which the parties had testified.

The act of partition prepared by wife’s counsel was presented to husband’s counsel, but was unacceptable. Husband’s counsel prepared an act of partition, but this was unsatisfactory to wife’s counsel. The difficulty was due to the existence of more than one list of the moveable property and a dispute over which list represented the terms of the settlement agreement.

The particular list used at the hearing on October 27, 1982, was not placed in the record.

Wife’s counsel filed a rule to have the settlement agreement enforced (by the terms of the act of partition he had prepared). Husband’s counsel responded to the rule by also asking the court to enforce the settlement agreement (upon the terms of the act of partition prepared by husband’s counsel). The matter was set for a hearing.

In connection with the rule to enforce the settlement, wife asked that Judge Duran, now sitting in the domestic section, transfer the hearing to Judge DiRosa, now sitting in a non-domestic division, because Judge DiRosa had heard the matter on the day the parties reached the agreement which they were now seeking to enforce. Judge Duran ordered the transfer which was accepted by Judge DiRosa, who indicated that he remembered well the case. Husband’s counsel objected to the transfer.

Husband’s counsel filed a motion to have the transfer order rescinded, which was denied. Judge DiRosa then conducted a hearing on the rule prior to which he clarified the scope of the hearing as follows:

This rule comes up for an explanation of a settlement that was dictated into the record on October 27, 1982. On October 27 I was presiding. And the judgment was rendered or dictated into the record by the parties on October 27, 1982 and a transcript of the record is available there (indicating).
The facts under consideration today, and the only thing before the Court at this time is the explanation of the judgment and not in any way to change any of the judgment that was rendered on October 27, because that judgment, according to the Rules of Civil Procedure is final and has been final since the date of its being dictated into the record itself and in accordance with the law not even is it necessary to reduce it to writing. It’s effective as of the date it was dictated, which was October 27, 1982. * * * On that day it was stated there was a list involved. It now becomes a question of an explanation in order to explain that judgment as to what list are we speaking of.

Both parties testified concerning what list represented the terms of their agreement. Husband’s counsel wanted to testify, but the court said that he could not. The court then ruled that the list designated as “Mrs. Grusich No. 6” was the list to be used in consummating the partition of community property. A judgment was rendered in accordance with that ruling, ordering that the partition of community property be completed within 15 days.

Husband has appealed from this judgment and raises three issues: (1) Whether a domestic case can be transferred from the domestic section of court to a judge sitting in a non-domestic section of court; (2) Whether the court erred when it did not allow husband’s counsel to testify; and (3) Whether, considering the evidence, the judgment of the district court is manifestly erroneous.

Appellant argues that the transfer of the hearing on the rule from Judge Duran to Judge DiRosa was error. He bases his argument on La. Act 460 of 1979, which created a domestic section in the Orleans Parish Civil District Court, and the local rules of the district court as they relate to domestic cases. We find his arguments unfounded.

We are aware of the existence, and questionable status, of the jurisprudential rule that an appellate court may not take judicial notice of the rules of a district court, if the rules are not placed in evidence in the case being considered. See Bryant v. Travelers Insurance Co., 288 So.2d 606 (La.1974) and Lupo v. Lupo, 366 So.2d 932 (La.App. 1st Cir.1979). The rules of the district court were not placed into evidence. Judge DiRosa, however, referred to the rules in providing his reasons for denying husband’s motion to rescind the transfer order.

Obviously, there is nothing to prevent a district judge from referring to the rules of his own court. In fact, we must presume that the judge took cognizance of his own court’s rules. Bryant v. Travelers Insurance Co., supra. In this context, therefore, we will accord great weight to the district judge’s interpretation of his own court’s rules.

Further, the Civil District Court for the Parish of Orleans is a single court presently composed of twelve divisions with a single judge presiding over each of the divisions. Jurisdiction over the subject matter of any particular case is determined by considering the constitutional and/or statutory grant of jurisdiction to the court where the ease is pending. Jurisdiction is not determined by reference to any particular division of the court. Each division of the court operates under the same grant of jurisdiction as the entire court.

Act 460 of La. Acts of 1979 did not create a domestic court separate from the Civil District Court, with separate exclusive jurisdiction. The act mandated the creation of a domestic section within the Civil District Court in order to facilitate the handling of domestic matters by the court. The act did not change the jurisdiction of the court.

Any judge properly presiding over a division of the Civil District Court has the authority to hear any matter over which the court has jurisdiction. Rules concerning the allotment of cases to different divisions and the transfering of cases among divisions are designed to promote efficient internal court procedure in the interest of fairness and judicial economy. The rules do not create or limit jurisdiction.

Husband has not alleged that he suffered any prejudice as a result of the transfer. Judge Duran and Judge DiRosa saw the transfer as being in compliance with their own court rules. See: Rules of the Civil District Court for the Parish of Orleans, Rules 3 and 8.5. The record contains nothing to demonstrate that the transfer was improper or that husband suffered any harm. The proper procedural device for review of an order transferring a case from one division of the Civil District Court to another is by application for writs. Had this been the only issue on appeal we would have dismissed the appeal. See Succession of Williams, 153 La. 206, 95 So. 607 (1923); compare with Dupont v. Dupont, 392 So.2d 158 (La.App. 1st Cir.1980); Communication Counselors Network, Inc. v. Burger Chef of Louisiana, Inc., 291 So.2d 849 (La.App. 4th Cir.1974); Broussard v. Liberty Mutual Insurance Co., 204 So.2d 714 (La.App. 3d Cir.1967), application denied, 251 La. 753, 206 So.2d 97 (1968). On appeal we will not interfere with the transfer of cases between the divisions of the district court absent a showing that the appellant suffered prejudice as a direct result of the transfer.

Appellant-husband has also argued that the trial court erred by not allowing husband’s counsel to testify. After the parties testified, husband’s counsel stated, “I want to take the stand.” [Tr. Vol. II, p. 51] The trial judge told him that he could not testify and provided him with brief reasons for that ruling. Husband’s counsel then stated, “All right.” [Tr. Vol. II, p. 52] Counsel did not object, provide the court with reasons why he should be allowed to testify, proffer his testimony, or make a statement setting forth the nature of his testimony. See La.C.C.P. Art. 1636.

The record indicates that counsel acquiesced in the ruling of the trial court. He did nothing to preserve the issue for appellate review. It is incumbent upon counsel who contends his evidence was improperly excluded to make a proffer, and if he fails to do so, he cannot contend such exclusion was error. Jeffers v. Amoco Production Company, 405 So.2d 1227 (La.App. 1st Cir.1981). Counsel’s statements in his appellate brief are not sufficient to preserve the issue for appellate review.

Lastly, appellant argues that the trial court judgment is manifestly erroneous. Which list of moveable property was representative of the agreement reached by the parties at the first hearing is clearly a question of fact. Judge DiRosa presided over the first hearing wherein the parties reached their settlement agreement and dictated it into the record. Judge DiRosa also presided over the second hearing and, as the finder of fact, determined that the list designated as “Mrs. Grusich No. 6” was the list which represented the terms of the settlement agreement, and he ordered that this list be used in consummating the settlement agreement.

We have reviewed the entire record and have found nothing to indicate that the judge’s finding of fact was in error. Consequently, we will not disturb this finding of fact. Canter v. Koehring Co., 283 So.2d 716 (La.1973); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Accordingly, the judgment of the district court is affirmed. All costs are to be paid by appellant-husband.

AFFIRMED.


author: LOBRANO, Judge.

text:
    STATE of Louisiana In the Interest of M.T., P.T., N.T., T.T. and Na.T. v. D.T., Mother of Minors and J.R., Natural Father of M.T., P.T. and N.T.: G.T., Natural Father, of T.T. and Na.T.
    No. CA-1456.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    F. Clayton Latimer, New Orleans, for appellee (Gregory Thompson).
    Beverly Lawson, Richard Ducote, New Orleans, for appellant (La. Dept, of Health and Human Resources).
    Before GULOTTA, SCHOTT and LO-BRANO, JJ.
   LOBRANO, Judge.

This case arises out of an abandonment proceeding brought by the State of Louisiana, Department of Health and Human Resources pursuant to LSA R.S. 9:403-407 to adjudicate the status of five minor children, including T.T., born May 14, 1974 and Na.T., born March 3, 1976, relative to their mother D.T. and their non-legal father, G.T.

With the exception of Na.T., the children were originally placed in the custody of the Department of Health and Human Resources on August 16, 1975. They were adjudicated neglected children by the Juvenile Court for the Parish of Orleans on November 11, 1975, and have remained in the custody of the State since that time.

Na.T. was removed from her mother’s custody on August 30, 1976 and has remained in the custody of the State since that time.

The petition for a decree of abandonment was filed on April 30, 1983 and the obtaining of same would obviate the necessity of the parent’s consent to adoption of the children by others. The hearing of the abandonment petition was held on July 26, 1983.

The juvenile court found that the mother, D.T., had abandoned all five of the children and therefore terminated her parental rights. The court further found that J.R., the alleged non-legal father of the three eldest had abandoned his children and therefore terminated his parental rights. However, as to G.T., the non-legal father of T.T. and Na.T., the court found that he had not abandoned his children and did not terminate his parental rights.

From this judgment, as it relates to.G.T., the State has appealed. Neither the mother, D.T., nor J.R. have appealed the judgment against them and said judgment, as it relates to them, is final.

The State asserts one assignment of error:

“... that the trial court erred in not finding that the State proved by clear and convincing evidence under LSA R.S. 9:403(A)(l)(b) that G.T. failed to provide for the care and support of his two children under circumstances showing an intent to avoid parental responsibility.”

However, we find it unnecessary to address this assignment. La.R.S. 9:404 provides:

“A surrender by the mother of a child born out of wedlock who has not been formally acknowledged or legitimated by the father terminates all parental rights except those pertaining to property. The same shall be true as to a court order of abandonment. However, no surrender or court order of abandonment as to only one living parent of a legitimate child shall be binding upon the other living parent.”

Despite equal protection and due process arguments to the contrary, this statute has been held to be constitutional. Collins v. Division of Foster Care, Inc., 377 So.2d 1266 (La.App. 4th Cir.1979). See also, Golz v. Children’s Bureau of New Orleans, Inc., 326 So.2d 865 (La.1976). Since the record contains no evidence indicating that G.T. ever formally acknowledged or legitimated his two children, the lower court’s decree of abandonment as to D.T. necessarily terminates the parental rights as to G.T. La.R.S. 9:404, supra.

The judgment of the trial court, as it pertains to G.T. is hereby reversed, and accordingly the children T.T. and Na.T. are declared abandoned by G.T. and all parental rights, except those as to property, are terminated.

REVERSED.

      . At the request of all parties involved in this matter and because same involves juveniles this Court will use initials in its opinion.


author: WARD, Judge.

text:
    STATE of Louisiana v. Terry SIMPSON and Alex Armstead.
    No. KA 1031.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., John H. Craft, William R. Campbell, Jr., Asst. Dist. Attys., New Orleans, for State of La., plaintiff-appellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Terry Simpson and Alex Armstead, defendants-appellants.
    Before WARD, BYRNES, and AUGUSTINE, JJ.
   WARD, Judge.

Terry Simpson and Alex Armstead were charged by Bill of Information with two counts of simple burglary of an automobile and one count of illegal possession of stolen property. Both defendants pleaded not guilty to all counts. A jury found them guilty of one of the two counts of simple burglary and guilty of illegal possession of stolen property. Both were acquitted of the second count of simple burglary. Each was sentenced as a second offender to serve five years in prison for the burglary conviction and two years concurrently for the conviction of possession of stolen things.

On appeal, Simpson and Armstead request this Court to review the record for errors patent. We find no errors patent on the record and affirm the judgment of the Trial Court.

When a defendant requests this Court to review the record for errors patent, we also review for sufficiency of evidence. State v. Raymo, 419 So.2d 858 (La.1982). Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560, defines United States Constitutional standards of review which requires a reviewing appellate court to examine the evidence “in the light most favorable to the prosecution” to determine whether “any rational trier of fact could have found the essential elements of crime proven beyond a reasonable doubt.” 443 U.S. at 319, 99 S.Ct. at 2789. State v. West, 408 So.2d 1302 (La.1982); State v. Fuller, 414 So.2d 306 (La.1982).

The essential elements of simple burglary are:

1) an unauthorized entry of a vehicle
2) with the intent to commit a felony or any theft therein. La.R.S. 14:62.

The elements of the offense of illegal possession of stolen things are:

(1) the intentional procuring, receiving, or concealing
(2) of anything of value
(3) which has been the subject of any robbery or theft
(4) under circumstances which indicate that the offender knew or had good reason to believe that the thing was the subject of one of these offenses. La.R.S. 14:69.

At trial, the prosecution presented the testimony of the two New Orleans police officers who investigated the crime. They testified that shortly after midnight on August 24, 1982, they received a radio call from the police dispatcher that an anonymous source had reported two men “going in and out of” a white car in a parking lot on North Claiborne Avenue near the Famous Disco. One of the suspects was described as wearing blue jeans and a white tee shirt; the other, white shorts and a blue top. As the two officers approached the Famous Disco, they observed Simpson and Armstead dressed in a manner that fitted the radio dispatch description and standing near a white 1977 Charger, which they later learned belonged to Armstead. As the police officers parked their vehicle, Simpson swung into the passenger’s seat of Armstead’s car while Armstead remained outside. When they approached the car to investigate, they observed automobile stereo equipment with torn wires under Simpson’s feet on the floor of Arm-stead’s vehicle, a penlight, and a screwdriver in Armstead’s pockets, and a coat hanger on the ground at his feet.

Next to the Armstead ear they found a 1974 red Mustang, open and ransacked, and nearby, a white 1977 Buick Regal, in like condition.

Wade Matthews, the owner of the white Buick Regal, testified that he had locked his car before entering the nightclub that evening. When he returned to his car, he saw that his radio cassette and power booster were missing and his glove compartment had been broken into. Matthews testified that the radio cassette and power booster which the officers removed from Armstead’s car belonged to him, and that the equipment was worth over $200.00.

Jonathan Jenkins, the owner of the red Mustang, testified that he had also locked his car before he left for the disco. When he returned he found his car had been entered into and the dashboard destroyed, but the thieves could not remove the radio because of the way it was mounted in the dashboard.

Both of the defendants gave similar testimony. Simpson had met Armstead at the disco. After Armstead agreed to give Simpson a ride home, they had gone to the parking lot where they saw someone run from Armstead’s car. Armstead gave chase while Simpson waited in the vehicle, putting his feet on the stereo equipment lying on the floor only because there was nowhere else to put them. They later observed the glove compartment of Arm-stead’s car had been opened and someone had tampered with the wires to the cassette. Both contradicted the police and testified that the tools were found in the trunk of Armstead’s car, rather than in his pockets as the police officers testified. In essence, the defense is that the perpetrator of the crimes was the person whom they saw run from Armstead’s car before the police officers arrived on the scene.

The jury convicted the defendants of the burglary of the stereo equipment from Matthews’ white Buick and possession of the Matthews’ stereo equipment found with Simpson in Armstead’s car. The defendants were found not guilty of the burglary of Jenkin’s car.

Viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could find the elements of both crimes proven beyond a reasonable doubt. As to burglary, a reasonable trier of fact could readily conclude there was an unauthorized entry of the white Buick, and that at the time of the entry there was an intent to commit a theft therein. As to possession of stolen things, although possession alone does not give rise to a presumption that the person receiving it knew it was stolen, State v. Nguyen, 367 So.2d 342 (La.1979), the circumstances surrounding the possession in this case could readily lead a rational trier of fact to conclude both defendants were the thieves, received the property, and knew it to be stolen.

We affirm the conviction of both defendants of both crimes.


text:
    Barry BAKER, d/b/a Anthony Baker and Company v. Lionel R. INGRAM, Jr.
    No. CA 1231.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Henry W. Kinney, III, New Orleans, for Barry Baker plaintiff-appellee.
    Wayne H. Scheuermann, Graffagnino, Perez & Roberts, Metairie, for Lionel R. Ingram defendant-appellant.
    Before REDMANN, GARRISON and WARD, JJ.
   WARD, Judge.

This is an appeal by Lionel R. Ingram, Jr. from a summary judgment in favor of plaintiff, Barry Baker, d/b/a Anthony Baker and Company. We reverse and remand for trial on the merits.

Baker’s claim is for $6,364.43 for repair work he and his employees performed on Ingram’s vessel, the “Aloha”, during September and October of 1982. The labor and materials were furnished pursuant to an oral promise by Ingram to pay an hourly rate for labor and the costs of materials. Ingram admits the contract but he contends he advised Baker that he would not pay more than $2,500 for the repairs, and that Baker agreed to this as a maximum cost of repair.

After the repairs were completed, Baker mailed invoices to Ingram and otherwise sought to collect the $6,364.43 which he alleges is due. He refused to accept Ingram’s offer to pay $2,500 in full satisfaction of the debt.

After amicable demands failed, Baker filed suit in Civil District Court for Orleans Parish. Ingram answered alleging that the work was to be done for a price not to exceed $2,000 [sic]. After the answer, Baker filed interrogatories and moved to set the matter for trial, shortly followed by a motion for summary judgment. The motion was supported by an affidavit of Barry Baker essentially repeating the allegations of the petition, with its accompanying statements and invoices.

A few days after the motion was filed and two weeks before the hearing, Ingram filed answers to the interrogatories in which he again claimed that Baker agreed the price would not exceed $2500.

Counsel for Ingram did not respond to the motion for summary judgment by filing written opposition, nor did he timely produce opposing affidavits. Ingram’s attorney did not appear at the hearing, but a member of his firm did and he presented an affidavit of Ingram, (whether or not it was signed is disputed) in which Ingram says cost of repairs were not to exceed $2,500.

After the hearing, summary judgment was rendered in favor of Baker. Ingram shortly thereafter moved for a new trial. After a hearing on that motion, and twenty days after judgment was rendered, another member of the firm filed Ingram’s signed affidavit in the record. Present counsel for Ingram acknowledges that no opposition was filed to the motion for summary judgment, however, he contends summary judgment was improper because Ingram’s answers to the interrogatories show genuine issues of material fact. Counsel for Baker contends that because Ingram failed to oppose the motion by filing affidavits or otherwise, the motion was properly granted.

This appeal first presents the question of whether summary judgment may be rendered without consideration of the merits of the motion when counsel for defendant does not even bother to file an opposition, a memorandum, or affidavits opposing the motion, but merely appears at the hearing to oppose it.

We hold that it may not. We believe that even in the absence of a formal opposition, the moving party must show that it is entitled to a summary judgment. Any doubt must be resolved against the granting of a summary judgment and in favor of trial on the merits to resolve disputed facts. Employers ’ Surplus Line Insurance Co. v. City of Baton Rouge, 362 So.2d 561 (La.1978). Hence, even where there is no formal opposition to the motion, we believe a mover must show he is entitled to summary judgment.

This leads to our consideration of the merits of Baker’s motion for a summary judgment and whether he has shown he is entitled to it. For the following reasons, we believe the motion for summary judgment should have been denied.

It is well settled that a summary judgment should be granted if, and only if, the pleadings, depositions, answers to interrogatories, admissions on file, together with affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.Civ.P. art. 966; Chaisson v. Domingue, 372 So.2d 1225 (La.1979).

After Baker submitted interrogatories, Ingram filed answers under oath, which were made part of the record. These answers must be considered in deciding whether there is a genuine issue of fact before summary judgment may be rendered. LSA-C.C.P. art. 966 provides:

Motion for summary judgment; procedure
B. The motion for summary judgment shall be served at least ten days before the time specified for the hearing. The adverse party may serve opposing affidavits prior to the date of the hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

When Ingram answered under oath that Baker agreed to a maximum cost of $2,500, a genuine issue of fact was presented, at least as to the amount in excess of $2,500.

Admittedly, LSA-C.C.P. art. 967 seems to imply that some response, at least a written opposition, must be made to defeat a motion for a summary judgment.

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

Nonetheless, we believe art. 967 must be read in conjunction with art. 966, and when considering both, we hold summary judgment may not be rendered, even when a party does not respond to the motion, if the answers to interrogatories show a genuine issue of fact.

Our opinion is supported by Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980). In that case, while discussing summary judgments, the Supreme Court said:

On a motion for summary judgment the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.

In this case, while Baker did not include the answers to the interrogatories in support of his motion, Ingram’s answers were in the record, and they must be considered in resolving the question of whether there is a genuine issue of material fact.

Reversed. All costs of summary judgment proceedings and this appeal are to be paid by plaintiff-appellee, Barry Baker.

REVERSED.

      . Ingram’s answer claims an agreed cap of |2,000 on the price of the repairs. Interrogatory responses and an affidavit say it was $2,500.


text:
    STATE of Louisiana v. Louis PIPKINS.
    No. KA 1248.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for Louis Pipkins, defendant-appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for State of La., plaintiff-appellee.

      Before CIACCIO, LOBRANO and WARD, JJ.
   WARD, Judge.

Louis Pipkins was convicted by a jury of armed robbery. The State charged that Pipkins was also a multiple offender. After a hearing on that issue, the Trial Judge found he was a multiple offender and sentenced Pipkins to thirty-three years at hard labor without benefit of parole, probation, or suspension of sentence. Pipkins appeals and asks that we review the record for errors patent. There are none.

We have also reviewed the record for sufficiency of evidence to support the appellant’s conviction. State v. Raymo, 419 So.2d 858 (La.1982). We find that viewing the evidence in the light most favorable to the prosecution, a rational finder of fact could have found that each and every element of armed robbery had been proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 309, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); State v. Fuller, 414 So.2d 306, 310 (La.1982).

The conviction and sentence are affirmed.

AFFIRMED.


author: WILLIAMS, Judge.

text:
    Henry B. DEJOIE, Sr. v. Vivian ROUSSELL and the Louisiana Weekly Publishing Co., Inc.
    No. CA-1316.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.

      Hilliard C. Fazande, II, New Orleans, for plaintiff-appellant.
    John S. Keller, New Orleans, for defendants-appellees.
    Before KLEES, BYRNES and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from a decision by the trial court denying plaintiff, Henry B. De-joie, Sr., a preliminary injunction and dismissing a temporary restraining order previously granted against Vivian Roussell and The Louisiana Weekly Publishing Company [Louisiana Weekly].

Plaintiff filed suit against Roussell and Louisiana Weekly for specific performance of a contract to sell stock. Dejoie and his sister, defendant Roussell, entered into an agreement on March 7, 1980, in which Roussell agreed to sell plaintiff her 60 shares of stock in Louisiana Weekly, along with “twenty (20) odd Louisiana Weekly shares, from the estate.” Defendant Roussell accepted a check as partial payment for the shares of stock, but later returned the check and indicated to plaintiff her desire not to proceed with the sale. Defendant testified at trial that from March of 1980, through November of 1982, plaintiff made various offers to her to purchase the stock which had been the subject of the previous agreement. In October of 1982, Roussell sold her stock to another brother, Constant C. Dejoie, Jr. The certificates of stock were endorsed over to Constant Dejoie.

On November 19, 1982, Henry Dejoie filed a petition for specific performance of the March, 1980 agreement and received a temporary restraining order prohibiting Roussell from transfer of the stock in question. Attorneys for Constant Dejoie indicated that he had informed Henry Dejoie of the sale of stock on November 17. Henry Dejoie denies that he knew of the sale of the stock prior to his filing suit.

Plaintiff was granted a temporary injunction. On the trial for the preliminary injunction, however, the trial judge ruled in favor of defendant. A preliminary injunction is granted when a plaintiff makes a prima facie showing that he is entitled to relief and that he will suffer irreparable injury if the preliminary injunction is not granted. La.Code Civ.Pr. art. 3601, et seq. The issue in the instant case is whether plaintiff has made a prima facie showing that he will prevail upon the merits. See Schwegmann Bros. Giant Supermarkets v. Louisiana Milk Commission, 290 So.2d 312 (La.1974).

On appeal, plaintiff has raised several issues relative to the Uniform Stock Transfer Act and the issue of whether Constant C. Dejoie is a holder in due course of the stock. Because we find that the contract between plaintiff and Roussell to sell the stock cannot be enforced, we need not address those issues on appeal.

For over two years Henry Dejoie did not demand specific performance for the sale of the stock. His actions in accepting the return of the check, as well as making repeated new offers to purchase the stock, indicated his acquiescence in the recision of the contract. A contract may be modified, abrogated, nullified, or revoked by mutual consent of the parties. Watson v. Haik, 393 So.2d 173 (La.App. 1st Cir.1980), citing Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir.1978). It was reasonable for the trial court to find that plaintiffs actions indicated that the original contract had been nullified, and that Roussell was free to sell the stock to someone else.

Because plaintiff has failed to prove that there was a likelihood that he would prevail on the merits, the trial court properly denied the preliminary injunction.

While on appeal to this court, a third-party motion to appeal and intervene was filed on behalf of Louise Wilcox. The petition of intervention alleges that Louisiana Weekly’s Articles of Incorporation require that the Corporation shall have a right of first redemption of stock, i.e., that a holder of stock who wishes to sell his or her shares in the Corporation must first offer the stock to the Corporation. The petition alleges that this was not done. Furthermore, the Articles of Incorporation require that once the offer to the Corporation expires after 30 days, the stock must be offered to other shareholders according to the Charter. The petition of intervention does not state what status Ms. Wilcox has other than to allege in one paragraph that when the stock was not purchased by the Corporation then all shareholders including Ms. Wilcox had a right to purchase the stock.

Article 2086 of the Louisiana Code of Civil Procedure states that “[a]ny person who could have intervened in the trial court may appeal, whether or not any other appeal has been taken.” See Brock v. Tidewater Constr. Co., 318 So.2d 100 (La.App. 3d Cir.1975). There is no evidence, however, in the record on which we could grant Ms. Wilcox relief. In Haas v. Haas, 181 La. 265, 159 So. 384 (1935), the Louisiana Supreme Court held that a third person appellant must take the record as it is lodged in the appellate court. Ms. Wilcox, therefore, cannot introduce any new evidence to support her allegations. La.C. Civ.Pr. art. 2086 (Official Rev. Comment (C)). Although Wilcox arguably has a right of appeal, she is not entitled to relief under the facts presented by the record in this case.

For the foregoing reasons, the decision of the trial court is AFFIRMED, all costs to be borne by appellant.

AFFIRMED.

      . This “twenty (20) odd” shares apparently refers to shares of stock in the estate of the parties' mother. At trial, Dejoie admitted that he knew at the time that this contract was confect-ed that Roussell was not going to inherit any of the stock.


author: BARRY, Judge. REDMANN, Chief Judge,

text:
    Claudia Ruth Newell DARBY, Individually and as Curatrix of Andrew Darby v. METHODIST HOSPITAL, Anesthesia East, Inc., Anthony Lott, Dr. Paul Lea and Dr. Daniel E. Buras. In re Paul LEA.
    No. C-1977.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 14, 1984.
    Writ Denied April 13, 1984.

      Before REDMANN, C.J., and GULOTTA and BARRY, JJ.
   BARRY, Judge.

The defendant seeks to have plaintiff’s counsel removed because his law partner represented the defendant in a prior medical malpractice suit.

Defendant’s motion to debar alleges that the law firm previously “obtained confidential and privileged information regarding Dr. Lea’s practice of anesthesia, corporate entities, and personal information, all of which are/or maybe [sic] pertinent in the instant suit.” The motion was denied without assigned reasons.

The question is whether the information obtained from Dr. Lea in the earlier case is substantially related to the instant case. We find not.

Information concerning the practice of anesthesiology, Dr. Lea’s financial status, and his personal life is easily obtainable through discovery. More importantly, there is no connection between this suit and the prior litigation except that Dr. Lea was sued for malpractice.

WRITS DENIED.

REDMANN, Chief Judge, dissents.

REDMANN, Chief Judge,

dissenting.

“I am not in accord with [challenged counsel] that [the former client] is required to show that during the [first] litigation it disclosed matters to him related to the instant case. Rather, I hold that the former client need show no more than that the matters embraced within the pending suit wherein his former attorney appears on behalf of his adversary are substantially related to the matters or cause of action wherein the attorney previously represented him, the former client. The Court will assume that during the course of the former representation confidences were disclosed to the attorney bearing on the subject matter of the representation. It will not inquire into their nature and extent. Only in this manner can the lawyer’s duty of absolute fidelity be enforced and the spirit of the rule relating to privileged communications be maintained.
“To compel the client to show, in addition to establishing that the subject of the present adverse representation is related to the former, the actual confidential matters previously entrusted to the attorney and their possible value to the present client would tear aside the protective cloak drawn about the lawyer-client relationship. For the Court to probe further and sift the confidences in fact revealed would require the disclosure of the very matters intended to be protected by the rule. It would defeat an important purpose of the rule of secrecy — to encourage clients fully and freely to make known to their attorneys all facts pertinent to their cause. Considerations of public policy, no less than the client’s private interest, require rigid enforcement of the rule against disclosure. No client should ever be concerned with the possible use against him in future litigation of what he may have revealed to his attorney. Matters disclosed by clients under the protective seal of the attorney-client relationship and intended in their defense should not be used as weapons of offense. The rule prevents a lawyer from placing himself in an anomalous position. Were he permitted to represent a client whose cause is related and adverse to that of his former client he would be called upon to decide what is confidential and what is not, and, perhaps, unintentionally to make use of confidential information received from the former client while espousing his cause. Lawyers should not put themselves in the position ‘where, even unconsciously, they might take, in the interests of a new client, an advantage derived or traceable to, confidences reposed under the cloak of a prior, privileged relationship.’ [Citing Watson v. Watson, 171 Misc. 175, 11 N.Y.S.2d 537, 540.] In cases of this sort the Court must ask whether it can reasonably be said that in the course of the former representation the attorney might have acquired information related to the subject of his subsequent representation. If so, then the relationship between the two matters is sufficiently close to bring the later representation within the prohibition of [former ABA] Canon 6.” T.C. Theatre Corp. v. Warner Bros. Pictures, 113 F.Supp. 265, 268-269 (S.D.N.Y.1953).

Plaintiffs counsel in this medical malpractice case had (through one of two partners) earlier represented defendant anesthesiologist in another medical malpractice case. On the ground that defendant had entrusted confidences and secrets to counsel in the earlier case, defendant moved disqualification of counsel to act (through the second of two partners) as plaintiffs counsel. (Disqualification of one lawyer disqualifies all lawyers associated with him; see La. DR 5-105(D).) Defendant now seeks review of the trial court’s refusal to disqualify counsel.

The lengthy quotation from Judge Wein-feld discusses most aspects of our problem. That there is a substantial relationship between proper anesthesiology when the client is the anesthesiologist and proper anesthesiology when the client is the patient seems, to this writer, self-evident — or at least to be the presumption that a court ought to accept, rather than its contrary.

To Judge Weinfeld’s discussion this writer would add one other consideration. A lawyer who recognizes his professional responsibility towards a former client cannot act with full professional independence and may therefore be incompetent as counsel for a new client with adverse interests — divided in his professional loyalties and unable to conduct a full and free discovery against and cross-examination of the former client. See United States v. Shea, 436 F.2d 740 (9 Cir.1970), in which the former client, now a prosecution witness against the new client, was held by the trial judge not subject to cross-examination by his former lawyer because of (undisclosed, of course) privileged information the former client had given to the former lawyer.

If one might doubt all the above conclusions, based on La. Canon 4’s command to preserve confidences and secrets and on Canon 5’s obligation of independent professional judgment and Canon 6’s demand for competent representation of a client, one ought nevertheless heed Canon 9’s injunction to “Avoid Even the Appearance of Professional Impropriety.” If there is doubt, it ought to be resolved in favor of disqualification; Fleischer v. A.A.P., Inc., 163 F.Supp. 548 (S.D.N.Y.1958), appeal dismissed 264 F.2d 515 (2 Cir.), cert. denied 359 U.S. 1002, 79 S.Ct. 1139, 3 L.Ed.2d 1030 (1959).

This writer would grant certiorari and request briefing by challenged counsel or on their behalf. Unless that briefing reasonably supports a conclusion of substantial unrelatedness between the areas of medical malpractice in which challenged counsel first defended and now prosecute their former client, this writer would order challenged counsel disqualified.


author: YELVERTON, Judge. FORET, Judge,

text:
    STATE of Louisiana, Plaintiff-Appellee, v. Leon PRICE, Defendant-Appellant.
    No. CR83-668.
    Court of Appeal of Louisiana, Third Circuit.
    March 23, 1984.
    Edward Larvadain, Jr., Larvadain & Scott, Alexandria, for defendant-appellant.
    Camille J. Giordano, Asst. Dist. Atty., Alexandria, for plaintiff-appellee.
    Before FORET, DOUCET and YELVER-TON, JJ.
   YELVERTON, Judge.

Defendant, Leon Price, was charged with simple burglary, to which he entered the combined pleas of not guilty and not guilty by reason of insanity. A jury rendered a responsive verdict of guilty of attempted simple burglary. Thereafter the State filed a bill charging defendant as a multiple offender. The present conviction of attempted simple burglary was one of the convictions on which the multiple bill was based. After a hearing defendant was sentenced as a multiple offender and given 10 years at hard labor in the custody of the Department of Corrections.

Defendant appeals both the conviction of attempted simple burglary and the sentence, assigning a single error as to each.

The Conviction Assignment of Error

Defendant contends that the trial court committed reversible error in sustaining the State’s objection to certain evidence offered in support of his defense of insanity at the time of the offense. Defendant himself took the stand and testified that on the night of the attempted simple burglary-something “swooped” over him and that he had no recollection of what happened. He called his wife as a witness who testified to his bizarre behavior on the evening preceding his arrest. He also called his mother as a witness who likewise testified as to his bizarre behavior on the day of the crime as well as his mental condition for a period of five years preceding the date of the offense.

It was while his mother was testifying that the question was asked to which the State's objection was sustained. Defendant’s mother was asked whether as a child defendant did acts to indicate that something was wrong with him. The ruling on the objection to this question is the basis for this assignment of error. Defendant contends the question was relevant and that the exclusion of the evidence was a denial of his right to put on a defense.

LSA-R.S. 15:435 provides:

“The evidence must be relevant to the material issue.”

In this case the contested proposition was whether defendant was insane at the time of the offense. The evidence proffered was whether defendant “as a child” did “acts to indicate that something was wrong with him.” Defendant was 26 years old at the time of the offense; the time span between his childhood and the crime date had to be something like 15 or 20 years. Whether as a child defendant did acts that indicated something was wrong with him is an inquiry only remotely connected to his ability to tell right from wrong at the time of the offense. Nevertheless, the question was logically relevant. However, its vagueness, its uncertainty as to time, and its remoteness in time combined to attenuate its probative value to the point that the evidence was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and undue delay or waste of time. These are legitimate considerations in the administration of justice. See State v. Ludwig, 423 So.2d 1073 (La.1982). A trial judge’s determination regarding the relevancy of offered testimony is entitled to great weight and should not be overturned absent a clear abuse of discretion. State v. Stramiello, 392 So.2d 425 (La.1980). We find no abuse of the trial court’s wide discretion in excluding this testimony.

Except as to that one question, no restrictions were imposed on defendant’s presentation of his insanity defense. His wife and mother were permitted to explain his behavior on the night of the offense and his conduct on previous occasions. As mentioned earlier, his mother was permitted to state that he had been under the care of a psychiatrist for five years and defendant himself testified that he had been treated by a psychiatrist. Although defendant had the burden of proof as to the issue of insanity he did not call a medical expert. Unlike the case of State v. Hamilton, 441 So.2d 1192 (La.1983), defendant was not deprived of the right to present his defense of insanity.

This assignment of error has no merit. The conviction is affirmed.

The Sentencing Assignment of Error

This assignment of error is the claimed excessiveness of the 10 year sentence. Defendant was charged and sentenced as a third offender under LSA-R.S. 15:529.1. The permissible range of sentencing for attempted simple burglary thus was a minimum of three years and a maximum of 12 years. The trial court imposed 10 years. The trial court had the benefit of a presentence investigation report which was considered along with the arguments presented on defendant’s behalf at the sentencing hearing. It is apparent that the trial judge gave considerable thought to the sentence imposed inasmuch as he had conferences with the defendant’s minister and his stepfather during the days before the sentence. He complied with the sentencing guidelines of La.C.Cr.P. Art. 894.1. It is evident that he considered the mitigating factors of defendant’s age and family responsibilities. He explained, however, that he was unfavorably impressed by the defendant's criminal record and his demonstrated unreliability when given probation status on prior occasions. The trial court noted that defendant’s record was not limited to three felony convictions and that he could have been charged as a fourth offender and sent away for life. Under these circumstances we find no manifest abuse of the trial judge’s wide sentencing discretion. Accordingly, we do not find defendant’s sentence excessive. The sentence is affirmed.

CONVICTION AND SENTENCE AFFIRMED.

FORET, J., dissents and assigns written reasons.

FORET, Judge,

dissenting.

I respectfully dissent from the majority holding in that I think that the first assignment of error made by the defendant, that the trial court erred in refusing to allow counsel for defendant to question defendant’s mother about previous mental problems, has merit.

Defendant urges that this testimony by his mother was relevant to his defense of insanity. The trial record reflects the following colloquy on this issue:

“Q. Mrs. Thomas, do you know Leon Price?
A. Yes, I do.
Q. What’s his relationship to you?
A. That’s my son.
Q. So you’ve known Leon all his life?
A. I sure have.
Q. Do you know how old Leon is?
A. Twenty-six (26).
Q. As a child did Leon do acts to indicate that something was wrong with him?
BY MR. GIORDANO: Your Honor, I’m going to object.
BY THE COURT: Sustained.
BY MR. LARVADAIN: Your Honor, I’m going to object to the ... I’d like to reserve a bill of exception to the court
BY THE COURT: Objection noted.
BY MR. LARVADAIN: Okay, and I just want it in the record denying me the right to show by the mother a history of mental problems on behalf of Leon Price. What I want to do is show that from a baby Leon has had mental problems ... (Interrupted)
BY MR. GIORDANO: Your Honor, I ... I’m going to object to that ... (Interrupted)
BY THE COURT: I understand.
BY MR. LARVADAIN: ... up until the present time, so ... (Interrupted)
BY THE COURT: I’ve noted ... I’ve noted your objection. That’s all there is, sir. Next question.
BY MR. LARVADAIN: Yes, sir, but I ... I want the record to reflect that.
BY THE COURT: The record will be showing it if it goes to any appeal purpose, sir. Proceed.
Q. Mrs. Thomas, the questions I’m going to ask you will be restricted to the night of June 11th, 1980.
A. Yes, sir.
Q. I will not be ... the court has ruled I can’t ask you questions previous to that date. Do you understand that?
A. Yes, I understand that.
Q. I’ve objected to it. I think the court is in error ...
BY THE COURT: That’s not what my ruling is. My ruling is clear and you don’t need to explain to the witness. Ask her questions, Mr. Larvadain.
BY MR. LARVADAIN: Yes, sir, but I just want the record to reflect that.
BY THE COURT: It has so reflected.
BY MR. LARVADAIN: Okay.
BY THE COURT: Let’s go.”

An accused has the constitutional right to present a defense. Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967); La. Const. Art. 1, § 16 (1974). In State v. Murray, 375 So.2d 80 (La.1979), the Louisiana Supreme Court announced the general rule as to lay opinion evidence of insanity. The Court stated:

“[A] non-expert witness, basing his testimony on facts and circumstances known to him, may be permitted to give opinion testimony touching upon the sanity or insanity of a person whose mental condition is at issue, provided the witnesses [sic] be shown to have had ample opportunity to observe the speech, manner, habits and conduct of such person.”

In the instant case, it appears that the trial judge’s ruling was that the testimony sought to be elicited from the defendant’s mother was irrelevant. The defendant’s mother was allowed to testify about the defendant’s strange behavior on the night in question. Additionally, the defendant’s wife was allowed to testify that the defendant had been under psychiatric care in the past.

Whether or not the trial court was correct in labeling this evidence irrelevant is a matter within his discretion and will not be disturbed on appeal in the absence of a clear abuse of his discretion. State v. Chaney, 423 So.2d 1092 (La.1982).

According to State v. Murray, supra, lay testimony is admissible in attempting to prove insanity. In the present case, the defense did not present any expert testimony on the issue of insanity. The defense relied on the testimony of the defendant, his wife and mother to establish insanity within the limits set by the trial judge.

Although the defense was allowed to elicit testimony concerning defendant’s behavior on the night in question, the defense should have been afforded wider latitude in addressing the issue.

Ultimately, the State, on rebuttal, introduced testimony of an expert who stated that the defendant had no mental defect and understood the difference between right and wrong. He opined that the problem was alcohol abuse .

I also feel that the defendant’s constitutional rights were violated. Defendant’s only real defense was insanity, and the law places upon him the burden of proving insanity by a preponderance of the evidence. LSA-R.S. 14:14; LSA-C.Cr.P. Art. 652; State v. Brogdon, 426 So.2d 158 (La.1983). By denying him the opportunity to present his mother’s testimony, the trial court effectively cut off his right to present evidence relevant to the issue of insanity. The fact that the testimony was lay rather than expert should have gone not to admissibility, but to weight. To deny defendant the right to present his mother as a witness as to his past history of mental problems would be to deny him the constitutional right to present a defense. La. Const. Art. 1, § 16 (1974); State v. Hamilton, 441 So.2d 1192 (La.1983).

For the aforementioned reasons, the conviction and sentence of defendant should be set aside, and the case remanded for a new trial.

      . Although the record of this testimony was not sent up, in reasons for sentence, the trial judge noted the substance of the expert’s testimony. The expert was a psychiatrist at Central Louisiana State Hospital.


text:
    Willie James STEWART v. STATE of Mississippi.
    No. 54674.
    Supreme Court of Mississippi.
    Feb. 1, 1984.
    Rehearing Denied March 14, 1984.
    Willie James Stewart, pro se.
    Bill Allain, Atty. Gen. by Bill Patterson, Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before WALKER, P.J., and ROY NOBLE LEE and BOWLING, JJ.

DENIAL OF COMPLAINT AGAINST EDDIE LUCAS, ET AL.

AFFIRMED.