author: GUIDRY, Judge.

text:
    Gus DUHON, Plaintiff-Appellee, v. SLICKLINE, INC., Guy A. Duhon and Keith M. Duhon, Defendants-Appellants.
    No. 83-626.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Writ Denied June 8, 1984.

      Edwards, Stefanski & Barousse, Homer Ed Barousse, Jr., Crowley, for plaintiff-ap-pellee.
    Lynn A. DeRouen, New Iberia, for def endants-appellants.
    Before GUIDRY, FORET and CULPEPPER, JJ.

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

   GUIDRY, Judge.

The plaintiff, Gus Duhon, brought this suit seeking to be recognized as owner of 25% of the stock in the defendant corporation, Slickline, Inc. Also made defendants are the plaintiff’s sons, Guy Duhon and Keith Duhon, the record owners of one-third each of the outstanding issued stock of Slickline, Inc. The plaintiff further contends that he was wrongfully dismissed from his employment with Slickline, Inc., and seeks to be reinstated in his former position, along with accrued salary and benefits. The trial court rendered judgment for plaintiff ordering the defendants to deliver 25% of the stock in Slickline, Inc. to the plaintiff. The trial court further ordered that the plaintiff be reinstated in his employment with the corporation, along with full back salary and benefits. The defendants have appealed.

The issues presented are: (1) whether the trial court was correct in determining that a $40,000.00 check delivered by the plaintiff to the defendants was given in payment for a one-fourth interest in the stock of Slickline, Inc.; (2) whether the court could properly order the transfer of stock from the defendants to the plaintiff; and, (3) whether the trial court was correct in finding that the plaintiff was wrongfully dismissed from his employment with Slick-line, Inc.

FACTS

In 1978, Guy and Keith Duhon approached the plaintiff to discuss the possibility of forming an oilfield service company specializing in wireline work. The corporation, Slickline, Inc., was formed on February 21, 1979. On February 28, 1979, the plaintiff delivered to Guy and Keith a check in the amount of $40,000.00. Guy and Keith endorsed the check and deposited the funds into the account of Slickline, Inc. The corporate stock of Slickline, Inc. was issued to Guy, Keith and a third son, Kim Duhon, one-third to each.

Guy and Keith testified that the $40,-000.00 check was a donation given to help them get the company started. They stated that their father told them that it was not necessary to pay the money back. They admit that the money was given with the understanding that it was to be used in the establishment of Slickline, Inc. However, they deny that there was any reciprocal agreement to transfer stock to their father in consideration of the $40,000.00 check. It was stipulated at trial that, had Kim Duhon been called as a witness, his testimony would have been in accord with that of Guy and Keith.

The plaintiff, Gus Duhon, testified that the money in question was given to secure a one-fourth (25%) share in the corporate stock. He stated that the corporate stock was to be divided equally among Guy, Keith, Kim and himself. The plaintiff stated that the one-fourth share he was to receive was to eventually go to a fourth son, Chad Duhon, to insure his place in the family business. Chad was to receive his share from the plaintiff upon attaining majority.

The testimony was also in conflict with regard to the plaintiff's performance under the employment contract. The contract was entered into on March 10, 1981, and was signed by the plaintiff and by Guy Duhon as president of the corporation. The contract was for a term of ten years. The contract further provided that the plaintiff would receive a salary equal to that of the president of Slickline, Inc., including all benefits payable to the president. Paragraph 3 of the contract lists the duties of the plaintiff, stating: “The services to be rendered are Chairman of the Board, Advisor, and items actually related thereto, including supervision on jobs.” The testimony taken at trial also established that, when the plaintiff was hired by Slickline, Inc., it was understood that, as part of his job duties, the plaintiff would be expected to do sales work in addition to his advisory and supervisory duties.

The plaintiff was terminated from his position with Slickline, Inc. on March 2, 1982. Guy Duhon testified that his father’s dismissal resulted from his failure to perform job duties. In particular, Guy stated that the plaintiff failed to make sales calls, that he was difficult to locate at times despite the fact that he kept a “beeper”; and, that he had refused a promising job offered by a potential customer. He stated that the customer’s business had been actively courted by Slickline, Inc. and that the plaintiff, unbeknownst to Guy and Keith, refused to accept the job, despite Slickline’s capability to perform the job.

Keith Duhon likewise testified that the plaintiff failed to fulfill his job duties with regard to sales, stating that the plaintiff made no sales calls to speak of during the three month’s prior to his dismissal. He also testified that the plaintiff improvidently allowed an inexperienced employee to operate certain equipment on an offshore drilling platform, resulting in the loss of $7,500.00 to $10,000.00 worth of tools. Keith also corroborated Guy’s testimony that the plaintiff was at times difficult to locate when needed. Both defendants also testified regarding an incident which occurred during a meeting they had with their father. The plaintiff was apparently disturbed over the fact that his son, Guy, had grown a beard. According to Guy and Keith, the plaintiff flatly refused to do any sales work until Guy shaved the beard. According to Keith, it was at this point that the two Duhon sons decided to terminate the plaintiff’s employment with Slickline, Inc.

The plaintiff testified that he had his attorney draw up the employment contract when problems began to develop between him and his sons. The contract as originally drafted stated, “The services to be rendered are Chairman of the Board, Advisor, and items actually related thereto.” At the insistence of Guy, the words “including supervision on jobs” were added. The plaintiff and Guy signed the employment contract as amended.

The plaintiff’s testimony with regard to the scope of his job duties was in accord with that of his sons. He stated that all three men shared like responsibilities, including sales, building units, going offshore when necessary, and in general staying available at all times. The plaintiff stated that he was in fact available twenty-four hours a day, that he went offshore whenever his presence was needed, and that he fulfilled all his duties with regard to rendering advice and supervision.

The plaintiff’s version of the incident concerning Guy’s beard differs slightly from that related by his sons. The plaintiff testified that he expressed concern over Guy’s beard and the fact that in turn the company’s employees began to grow long hair and beards. The plaintiff felt that the appearance of the employees was not presentable, making it more difficult to attract new customers. The trial transcript of the plaintiff’s testimony on cross examination contains the following exchange:

“Q. Did you ever tell Keith or Guy or Kim or all of them at a meeting that if there weren’t some changes made, if there weren’t some people shaping up in terms of getting their faces shaved, et cetera, that things just weren’t going to be the same way they would have been before? You weren’t going to do all the sales work and go to the trouble that you had gone to before if they didn’t shape up? Is that it?
A. Yes, sir.”

The remainder of the plaintiff’s testimony differs from that of his sons. With regard to the alleged refusal by the plaintiff of a promising job offer by a potential customer, the plaintiff denied any knowledge of such an offer. Concerning the loss of tools caused by the inexperienced employee, the plaintiff stated that he felt the employee, who had worked for Slickline, Inc. for six months, should have been qualified to perform the task assigned to him. He further hinted that any lack of experience on the employee’s part was due to a lack of proper training attributable to the company. He stated that any employee who had been on the job for six months should have had the requisite experience and training to perform the job being performed by the employee when the tools were lost.

THE STOCK AGREEMENT

The trial judge found that the $40,000.00 check delivered to the defendants by the plaintiff was intended to secure a 25% share of the corporate stock of Slickline, Inc. In doing so, he accepted the version of the agreement testified to by the plaintiff and rejected that attested to by the defendants.

The trial court is in the best position to assess the credibility of witnesses. Reasonable evaluations of credibility and reasonable findings of fact should not be disturbed on appellate review unless they are clearly wrong. Canter v. Koehring Company, 283 So.2d 716 (La.1973); Bertrand v. Aetna Casualty and Surety Company, 306 So.2d 343 (La.App. 3rd Cir.1975), writ refused, 310 So.2d 641 (La.1975). It is also well established that witnesses are weighed and not counted, and the weight to be given evidence is not determined by the number of witnesses.

Our careful review of the record reveals no clear error in the trial judge’s factual determination that the parties agreed to a transfer of stock to the plaintiff. The record is devoid of any evidence, other than the testimony of the defendants, to show that such was not the agreement between the parties. Because the resolution of this issue depended solely on the credibility of the competing parties, we will not disturb the factual finding of the trial court.

THE PLAINTIFF’S REMEDY

We do find it necessary, however, to amend that portion of the trial court judgment which orders the defendants to transfer 25% of the corporate stock of Slickline, Inc. to the plaintiff. This is made necessary by the provisions of the Articles of Incorporation, which prohibit such a transfer of corporate stock.

Article XXI of the Articles of Incorporation of Slickline, Inc. provides, in pertinent part:

“Unless the shareholder has previously obtained approval in writing from the holders of three-fourths of the issued stock of this corporation, such shareholders may not sell, donate, pledge, or in anywise transfer any stock of this corporation without first offering the same for sale, to all of the other shareholders owning stock, at the book value thereof, as shown by the last preceding financial statement of this corporation.
No sale, donation, pledge or transfer of any of the stock of this corporation shall be valid and binding until and unless opportunity to purchase such shares has been given in the matter in this article provided; and this right so vested in the shareholder, shall follow any of the stock of the corporation into any hands into which it may pass, without such opportunity being given....”

Mandamus is a proper remedy to compel a corporation to transfer shares of stock on the corporate books and to issue a proper certificate to the owner where there is no real dispute as to ownership and where the transfer has been made in accordance with the conditions of the Articles of Incorporation. State ex rel. Jurgens v. Consumers’ Brewing Co., 115 La. 782, 40 So. 45 (1905).

The record in the instant case establishes that the corporate stock of Slickline, Inc. was issued to Guy Duhon, Keith Du-hon and Kim Duhon, one-third to each. There is nothing in the record to indicate that the written approval required by Article XXI was ever secured from Kim Duhon prior to the agreement by Guy and Keith Duhon to transfer the 25% share of corporate stock to the plaintiff. Likewise, there is nothing to indicate that the stock was ever offered to Kim Duhon prior to said agreement. Kim Duhon was not made a party to -this suit. Under these circumstances, it is clear that the agreement to transfer stock to the plaintiff was not accomplished in accordance with the mandatory provisions of the Articles of Incorporation, and mandamus will not lie to compel the transfer.

It is also observed that the order of the trial court compelling the transfer was itself a violation of Article XXI, since none of the prerequisites for the transfer of corporate stock were fulfilled. Kim Du-hon, the record owner of one-third of the corporate stock, has pre-emptive rights established by Article XXI which would be clearly violated by such an order.

Since the transfer of stock to the plaintiff may not be accomplished, the consideration for plaintiffs $40,000.00 investment has failed. Under these circumstances, the plaintiffs only remedy is to have the funds returned to him. Thus, we will amend the trial court’s judgment in order to compel the return of the plaintiffs $40,-000.00 with interest.

THE EMPLOYMENT CONTRACT

The trial court found that the plaintiff was wrongfully dismissed from his position with Slickline, Inc. In his written reasons for judgment, the trial judge stated that the incidents upon which the defendants rely to establish cause for the dismissal were minor. He found that the plaintiff adequately and substantially performed all of the duties incumbent upon him under the employment contract.

As we have previously stated, the factual determinations of the trial court are entitled to great weight. Canter v. Koehring Company, supra. We find no clear error in the trial court’s finding that the plaintiff’s dismissal was without cause.

The defendants rely heavily on the “ultimatum” delivered by the plaintiff to the defendants, wherein he allegedly refused to do any sales work while Guy Duhon wore a beard. The plaintiff’s position in the disagreement may not have been entirely reasonable. However, for the reasons which follow, we are unable to say that it constituted grounds for dismissal.

Our review of the record convinces us that the plaintiff was hired primarily to supervise and advise, due to his expertise and extensive experience in wireline work. Although the plaintiff stated that he considered sales a part of his job duties, it appears that such work was not envisioned as a primary function of the plaintiff when he signed the employment contract. We find support for this proposition in the testimony regarding the amendment of the contract at the time it was signed. At the insistence of Guy Duhon, the contract was amended to show that supervision on jobs would be considered a part of the plaintiff’s job duties. This testimony evidences a concern on the part of Guy Duhon with more precisely defining the plaintiff’s job duties. The absence of any mention of sales work leads us to believe that, if it was intended that the plaintiff do sales work, such intention was not a primary consideration in the negotiation of the employment contract. Thus, the defendants’ suggestion that the alleged failure of the plaintiff to do sales work constitutes a blanket refusal to perform his duties is not supported by the record.

It is also important to observe that the plaintiff held a position of authority with Slickline, Inc. While we may disagree with the position taken by the plaintiff on the issue of his son’s beard, the record makes clear that the plaintiff, by virtue of his position, was entitled to have some input into policy-making, a function apparently shared with his sons. Thus, the plaintiff’s strong stand on the issue, in our view, is not in the nature of insubordination, but rather a policy conflict with those with whom he shared authority.

With regard to the other incidents upon which defendants rely, we agree with the trial court that such do not constitute grounds for dismissal. The plaintiff specifically denied any wrongdoing or neglect of his duties with regard to these incidents. However, even if we accept the defendants’ testimony concerning these matters, ' it seems that, in light of the plaintiff’s position of authority and responsibility, the incidents do not establish cause for dismissal.

In consideration of the foregoing circumstances, we find no clear error in the trial court’s determination that the plaintiff was dismissed without cause.

A party who establishes a breach of his employment contract due to wrongful dismissal, is entitled to either damages or specific performance of the contract, or to dissolution of the contract. In all these cases, the plaintiff is entitled to damages where they accrue. Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981). There was no error in the trial court’s judgment ordering the specific performance of the contract, nor in the award of back pay and benefits as damages for the breach.

For the foregoing reasons, the judgment appealed from is reversed in part, amended in part and affirmed in part, and recast to read as follows:

It is ordered, adjudged and decreed that there by judgment herein in favor of plaintiff, Gus Duhon, and against the defendants, Guy Duhon and Keith Duhon, condemning the latter to pay unto the plaintiff the full sum of $40,000.00, together with legal interest on said sum from date of judicial demand until paid.

It is further ordered, adjudged and decreed that there be .judgment herein in favor of plaintiff, Gus Duhon, and against defendants, Slickline, Inc., Guy Duhon and Keith Duhon, ordering that plaintiff be reinstated to his former position with Slick-line, Inc., together with full back salary and benefits, with legal interest on the amount due him from date of judicial demand until paid.

It is further ordered that defendants are cast for all costs of these proceedings at the trial level and on appeal.

REVERSED IN PART; AMENDED IN PART; AFFIRMED IN PART; AND, RENDERED.

      . Counsel for plaintiff timely objected to the introduction of any evidence tending to vary or add to the written terms of the employment contract. The trial judge overruled the objection, finding that the evidence of additional job duties was offered to interpret or explain the written terms of the contract. We find no error in the admission of this testimony, since parol evidence is admissible “to show fraud, mistake, illegality, want or failure of consideration, to explain an ambiguity when such explanation is not inconsistent with the written terms, or to show that the writing is only a part of an entire oral contract between the parties." Scafidi v. Johnson, 420 So.2d 1113 (La.1982).

      . Plaintiff's counsel also timely objected to the introduction of this testimony, which was elicited on cross examination. As explained in footnote 1, supra, we conclude that such testimony is admissible.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LEAGUE OF WOMEN VOTERS OF NEW ORLEANS, Nancy Turner and Betty Wisdom v. The CITY OF NEW ORLEANS and Ernest N. Morial, Mayor, et al. Daryl Claire Sins, wife of/and Alvin R. CHILDRESS, III v. Ernest N. MORIAL, Mayor of the City of New Orleans, et al. Daryl Claire Sins, wife of/and Alvin R. CHILDRESS, III v. Ernest N. MORIAL, Mayor of the City of New Orleans, et al. Daryl Claire Sins, wife of/and Alvin R. CHILDRESS, III v. Ernest N. MORIAL, Mayor of the City of New Orleans, et al.
    Nos. CA 0868 to CA 0871.
    Court of Appeal of Louisiana, Fourth Circuit.
    April 13, 1984.
    Rehearing Denied May 25, 1984.

      Carolyn N. Hazard, New Orleans, Michael B. McColloster, Metairie, for plaintiffs and appellees.
    Salvador Anzelmo, City Atty., Thomas W. Milliner, Galen S. Brown, Deputy City Attys., Marc G. Shachat, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for defendants, third party defendants and appellants.
    Arthur L. Ballin, New Orleans, for defendants and third party plaintiffs-appel-lees.
    Richard J. McGinity, McGinity & McGinity, Samuel I. Rosenberg, Polack, Rosenberg, Rittenberg & Endom, New Orleans, for third party defendants-appellants.
    Before REDMANN, GARRISON and WARD, JJ.
   PER CURIAM.

These consolidated cases have one issue common to all: Did the tax recipient bodies in Orleans Parish correctly determine the millage rate applicable to the assessed valuation of property when collecting ad valo-rem taxes from Orleans Parish property owners? The answer depends upon the interpretation of Section 23 of Article VII of Louisiana’s Constitution of 1974.

Section 23. Prior to the end of the third year after the effective ¿ate of this constitution, the assessors and the Louisiana Tax Commission or its successor shall complete determination of the fair market value or the use value of all property subject to taxation within each parish for use in implementing this Article. Except as provided in this Paragraph, the total amount of ad valorem taxes collected by any taxing authority in the year in which Sections 18 and 20 of this Article are implemented shall not be increased or decreased, because of their provisions, above or below ad valorem taxes collected by that taxing authority in the year preceding implementation. To accomplish this result, it shall be mandatory for each affected taxing authority, in the year in which Sections 18 and 20 of this Article are implemented, to adjust millages upwards or downwards without regard to millage limitations contained in this constitution, and the maximum authorized millages shall be increased or decreased, without further voter approval, in proportion to the amount of the adjustment upward or downward. Thereafter, such millages shall remain in effect unless changed as permitted by this constitution. Nothing herein shall prohibit a taxing authority from collecting, in the year in which Sections 18 and 20 of this Article are implemented or in any subsequent year, a larger dollar amount of ad valorem taxes by (a) levying additional or increased mil-lages as provided by law; (b) placing additional property on the tax rolls; or (c) increases in the fair market or use value of property after the first determination of that value to implement this Article. This Section shall not apply to millages required to be levied for the payment of general obligation bonds.

After approval by the voters of the new Constitution, in response to Section 23, the Orleans Parish assessors began the enormous task of revaluing property in New Orleans at its fair market value to determine its assessed valuation. The assessed valuation would be either ten or fifteen percent of fair market value, depending on the classification of the property, and this would become the tax base for property in New Orleans. The tax recipient bodies began preparations to adjust the millage rates to be applied to the new tax base, anticipating receipt from the assessors of the new assessed valuation before the end of 1977. They also anticipated adjusting the permanent millage rates by use of the assessed valuation for 1977 as a base year.

The assessors, however, did not revalue the property at fair market value for 1977, and, of course, they did not submit to the tax recipient bodies the assessed valuation of property for that year. The tax recipient bodies, believing Section 23 required millage rates to be adjusted by use of the assessed valuation for the year 1977 as a base year, estimated the 1977 assessed valuation and adjusted the millage rates based on that estimate.

The assessors completed revaluation of the property in 1978, and submitted to the tax recipient bodies the assessed valuation based on fair market values for that year, 1978.

The millage rates determined by the tax recipient bodies using their estimates of an assessed valuation for 1977 are higher than the millage rates would be if the assessed valuation for 1978 were used by them as the base year in determining permanent millage rates. ■

As a result, whether the base year is 1977 or 1978 is crucial. The tax recipient bodies argue Section 23 of the Constitution sets 1977 as the base year. The assessors argue that 1978 is the year, hence the permanent millage rates set by the tax recipient bodies are too high.

Although not nearly as important, another issue arose as a result of the tax recipient bodies, relying on Section 23, subsection c, applying their estimated millage rates to the increases in fair market value from 1977 to 1978. Mr. and Mrs. Childress paid taxes under protest, arguing that Section 23(c) only permits the tax recipient bodies to apply the adjusted millage rate to increases after 1978, not to increases in fair market value from 1977 to 1978. They have filed suit to recover the additional amount paid as taxes under protest, as individuals and as representatives of all taxpayers who they allege overpaid their taxes.

During trial the assessors and the tax recipient bodies stipulated as to fair market value for 1977 and the recipient bodies now argue that the stipulated fair market value of 1977 should be used to set the permanent millage rate.

The Trial Judge agreed with the assessors and held that the millage rates established by the tax recipient bodies were not authorized by either the Constitution or Statutes and ordered the tax recipient bodies to reduce the rates. The Trial Judge did not reach the merits of Mr. and Mrs. Childress’ claim because after he ruled the Childresses could bring a class action suit, that ruling was appealed.

We believe that the tax recipient bodies correctly interpreted and applied Section 23 when determining the millage, and we reverse. As a consequence, we do not have to decide if a class action may be brought by Mr. and Mrs. Childress or if the Trial Judge’s ruling that it was a class action could be appealed to this Court.

Although our decision is based upon Section 23 of Article VII, to understand Section 23 it is necessary to have in mind other sections of Article VII because Section 23 is only one of several provisions of the new constitution which changed property taxes in Louisiana. Section 18 of Article VII changed the method of determining assessed valuation, requiring all parish assessors throughout the state first to determine fair market value of land and improvements, and then to list property on the assessment rolls at 10% of fair market value for land and residential improvements and 15% of fair market value for other property. Assessed valuation of some property was to be determined by its use, but that is of no importance in this case. Section 20 provided for another change authorizing the Legislature to increase the homestead exemption.

Section 23, which is determinative of this lawsuit, recognized that in most instances property had not previously been assessed at fair market value and that assessors would have to revalue the property within their jurisdictions to conform to Section 18. Consequently, Section 23 gave the assessors three years to revalue the property in their parishes:

Section 23. Prior to the end of the third year after the effective date of this constitution, the assessors and the Louisiana Tax Commission or its successor shall complete determination of the fair market value or the use value of all property subject to taxation within each parish for use in implementing this Article.
* * * * * *

Section 23 made other changes. In most parishes changing assessed valuation to either 10% or 15% of fair market value would dramatically alter the prior valuation, increasing the tax base in some parishes and lowering it in others. If existing local millage rates remained unchanged and were applied to the new tax base, there would be either windfall increases or disastrous reductions in the taxes collected by the local tax recipient bodies. To prevent either result, Section 23 required local tax recipient bodies to adjust millage rates:

* * * * * *
Except as provided in this Paragraph, the total amount of ad valorem taxes collected by any taxing authority in the year in which Sections 18 and 20 of this Article are implemented shall not be increased or decreased, because of their provisions, above or below ad valorem taxes collected by that taxing authority in the year preceding implementation. To accomplish this result, it shall be mandatory for each affected taxing authority, in the year in which Sections 18 and 20 of this Article are implemented, to adjust millages upwards or downwards without regard to millage limitations contained in this constitution, and the maximum authorized millages shall be increased or decreased, without further voter approval, in proportion to the amount of the adjustment upward or downward. Thereafter, such millages shall remain in effect unless changed as permitted by this constitution.
******

Turning now to the issue of the permanent millage rate, all parties agree that the meaning of this part of Section 23 is clear — taxes collected were to remain the same. This meant if taxes were to remain the same, the new millage rate applied to the new tax base must equal the old rate applied to the old base. To yield constant revenues, millages must be reduced if property values increased and must be increased if property values decreased.

This general rule has great importance in the instant case because the tax bases for the years 1977 and 1978 are materially different. The 1978 base is greater because of both inflation and the surge in economic growth in Orleans Parish. Hence, applying the rule, the permanent millage rate, if determined from the lower 1977 assessed valuations, would be greater than if determined from the higher 1978 tax base. As a result, whether Section 23 refers to the year 1977 or 1978 is crucial.

The assessors contend the remaining portion of Section 23 relates back to the first sentence of the Section.

Nothing herein shall prohibit a taxing authority from collecting, in the year in which Sections 18 and 20 of this Article are implemented or in any subsequent year, a larger dollar amount of ad valo-rem taxes by (1) levying additional or increased millages as provided by law; (b) placing additional property on the tax rolls; or (c) increases in the fair market or use value of property after the first determination of that value to implement this Article. This Section shall not apply to millages required to be levied for the payment of general obligation bonds.

Relying on this portion, emphasizing in particular that part of subsection c, “after the first determination of that value to implement this section ”, the assessors argue that Section 23 became effective only when they as assessors completed their valuation of property at fair market value. They also point to Sections 18 and 20 as support for the argument that these provisions were to be implemented only after they completed their work, when they determined fair market value for 1978.

This means, they argue, permanent mil-lages could be set only by use of their 1978 assessed valuation, and that taxes cannot be levied on the increase in fair market value between 1977 and 1978, but only on increases after 1978 — “after the first determination of fair market value_”. Thus, they further argue, permanent millage rate must now be reduced because the tax recipient bodies must compute the permanent millages by using the greater 1978 base. As we have said before, a larger tax base requires a lower millage to yield constant tax dollars.

The Trial Judge found the tax recipient bodies were wrong in using 1977 as a base year and held that the increase in millage rates was not authorized until 1978, and that 1978 would be the base year to determine permanent millages. He ordered a reduction in the millage rates, not only for the reasons argued by the assessors, but because, as he said in his reasons for judgment, “... Section 35 provides that the Louisiana Constitution ‘shall become effective at twelve o’clock midnight on December 31, 1975’ [sic] ... [hence] increases in ad valorem taxes should not be collected until the first year after the first determination of that fair market value of the property, which was 1978.”

We disagree because Section 23 required assessors to determine the fair market value of property before the end of “the third year after the effective date of this Constitution”. Since the Constitution became effective midnight, December 31, 1974, not 1975 as the Trial Judge said, this meant before December 31, 1977. The Trial Judge erred by misreading Section 35 which clearly provides the effective date is twelve o’clock midnight of December 31, 1974. Therefore, Section 23 must be interpreted to set December 31, 1977, not December 31, 1978, as the deadline for the assessors to determine fair market value. Consequently, 1977 is the tax base year that must be used to compute permanent millages.

We also reject the argument of the assessors that Section 23 is effective only when implemented by their determination of fair market value — and then only when the assessors have had time to do their work.

Section 23 assumes three years was ample time for assessors throughout the state to revalue the property. If it was not, this does not mean Section 23 can be implemented only after the assessors first make the determination of fair market value. The controlling fact is not when the assessors finally determined fair market value but only what the fair market value was in 1977 — within three years after the Constitution’s effective date. We do not read Section 23 so as to give assessors the prerogative of selecting another year for revaluation. Nor do we believe any statute authorizes the assessors to select any other year. Hence, when in the course of the trial, the parties stipulated as to fair market value and the assessed valuation of property in 1977, this was sufficient to establish the 1977 tax base and was conclusive of the issue. Further examination shows that the tax recipient bodies’ estimate of fair market value and the tax base was remarkably close to the fair market value and tax base stipulated during trial. Hence, their calculations of the authorized permanent milla ge rate were correct. As a result, there is no need to order either adjustment of the rate or refunds to taxpayers. Since we have concluded the tax recipient bodies were right, the assessors wrong, and that the Trial Judge committed manifest error, we need not consider either the propriety of a class action by taxpayers in this case or the propriety of the appeal of the ruling that this was a class action.

We reverse and hold that the tax recipient bodies were correct in using their estimated 1977 fair market values and assessed valuation to compute the permanent millage rate, and they were correct in applying that rate to the increases between 1977 and 1978.

REVERSED.


author: McCLENDON, Judge Pro Tem.

text:
    STATE of Louisiana, Appellee, v. Danny Michael WEEKS, Appellant.
    No. 15970-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Johnston, Thornton & Hunter by W. Orie Hunter, III, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty. by Carey T. Schimpf and Tommy J. Johnson, Asst. Dist. Attys., Shreveport, for appellee.
    Before PRICE and JASPER E. JONES, JJ., and McCLENDON, J. Pro Tern.
   McCLENDON, Judge Pro Tem.

This defendant was convicted of armed robbery of a teller in the Eastgate branch of the Bank of Commerce, Shreveport, Louisiana, and sentenced to 99 years at hard labor.

He appealed this conviction and filed five assignments of error in connection therewith.

On September 16, 1982, defendant entered the Eastgate branch of the bank and took $3,155 from teller Mary Dorsey at gun point.

This act took place in the presence of six witnesses in the bank.

The following morning at about 5:00 A.M., officers of the Lufkin, Texas, police department entered defendant’s motel room in Lufkin with an arrest warrant and took him and his female companion into custody. They were asleep at the time the police entered the room.

This arrest came as the result of information furnished police by Louisiana authorities that defendant was armed and dangerous and may have abducted the female who was with him. Defendant was known to be carrying at least two weapons. One, a derringer pistol, wás found on the nightstand beside the bed. The other, a .38 caliber pistol, was found in an attache case under the edge of the bed.

$700 in cash was found by one officer in the pants pocket of the female when he examined them before allowing her to put them on.

After his arrest and return to Shreveport, defendant was placed in a line-up where he was identified by all the witnesses except the teller.

Following the trial and conviction of armed robbery, defendant was sentenced to 99 years at hard labor.

The first assignment of error deals with the alleged error of the trial court in failing to suppress physical evidence at the trial of a motion to suppress.

The objectionable evidence was that taken by the Lufkin police officers in the motel room at the time defendant was arrested. Although they had an arrest warrant, they had no search warrant and defendant complains that to open the attache case containing the .38 caliber pistol was in direct violation of his constitutional rights.

We find that these officers were justified in searching for the weapons they had been informed defendant had in his possession and any others of which they had no prior information. This man was a known criminal, armed and considered dangerous. To arrest him and his female companion and make no effort to protect themselves and the public by finding and taking into their possession any weapons in the immediate area occupied by these persons would have been extremely foolish, dangerous and indicative of want of experience and training.

Search of the immediate vicinity incident to a lawful arrest is clearly permissible. State v. Barrett, 408 So.2d 903 (La.1981).

Defense counsel argued that the officers had no right to look any farther once the defendant and his female companion were handcuffed. This argument overlooks the fact that the only weapon visible at the time was the derringer. It was known that the robbery was committed with a silver revolver which was not in plain view of the officers and it was not known at all what other weapons defendant and his companion might have concealed in the motel room.

It is not at all unheard of for persons thought to be securely under arrest and properly restrained to somehow gain control of a situation and escape, injuring or killing the arresting or transporting officer.

Even if the trial court erred in failing to suppress some or all of the evidence obtained incident to defendant’s arrest, it was harmless error in light of the overwhelming eyewitness evidence to the robbery and defendant’s guilt. State v. Gibson, 391 So.2d 421 (La.1980).

The second assignment of error complains of the failure of the trial court to suppress the results of the line-up during which defendant was identified by the eyewitnesses present at the robbery.

Primarily, defendant complained that the line-up was unduly suggestive because none of the individuals used in the line-up with defendant was over 5 feet 6 inches tall, which focused attention on defendant who was over six feet in height.

This information appears to have been incorrect since Officer Lindsay of the Shreveport Police Department testified that the individuals in the line-up stated they were No. 1, 6 feet; Nos. 2 and 3, both 5 feet 10 inches, and No. 5, 5 feet 7 inches.

Additionally, defense counsel argued that one member of the line-up acted strangely during the line-up, making faces and moving his number card about, which would serve to eliminate him as a suspect.

A line-up can be suggestive if a sufficient resemblance of physical characteristics and features of persons in the line-up does not reasonably test the identification. State v. Robinson, 386 So.2d 1374 (La.1980).

A trial judge’s determination of the admissibility of an identification should be accorded great weight and will not be disturbed on appeal unless the evidence reveals an abuse of discretion. State v. Bickham, 404 So.2d 929 (La.1981).

This court finds no error in the trial court’s ruling on this second assignment of error.

Assignment of Error No. 3 was taken to the failure of the trial court to grant defendant’s motion for a mistrial based upon the prejudice created upon the jury by imposition of shackles upon the defendant during the trial.

Defense counsel’s argument was that the impression conveyed to the jury was that of guilt despite the presumption of innocence with which every accused is clothed until conviction.

The record indicates that defendant had attempted one escape and information in the form of a rumor was circulating at Caddo Detention Center that defendant would try again at any time.

In the light of this and the existing “holds” on defendant from other jurisdictions for aggravated robbery, first degree murder, aggravated escape, aggravated armed robbery, and aggravated kidnapping, the trial court was justified in the security measures taken.

It should be noted that with the security the trial court also made every effort to avoid the possibility of the prejudice which might arise from the restraints by permitting defendant to remain seated when the jury was entering or leaving the courtroom, and further seeing that defendant was allowed to have a coat or jacket with which to cover the handcuffs as he sat in the courtroom.

It is within the sound discretion of the trial court to take those precautions necessary to maintain security during the trial of a criminal case, and the circumstances of ⅛⅜ case will largely dictate the nature of the precautions to be taken.

We find no prejudice to defendant and no abuse of the trial court’s discretion. State v. Clark, 325 So.2d 802 (La.1976).

Assignment of Error No. 4 claims that the evidence was insufficient to support the conviction.

We find the record to contain ample evidence of the strongest type to support defendant’s guilt beyond a reasonable doubt and find this assignment to have no merit.

Assignment of Error No. 5, claiming that defendant’s sentence is excessive, is also without merit.

The trial court’s extensive reasons for sentencing, as found in the record, amply support the maximum hard labor sentence he gave defendant.

There were no mitigating circumstances that would have justified a lesser sentence.

Finding the assignments of error to be without merit, the conviction and sentence are affirmed.


author: FRED W. JONES, Jr., Judge.

text:
    B.B. WINSLETT d/b/a Humphries Insurance Agency, Plaintiff-Appellee, v. W. Murray SMITH d/b/a Ora Oil Company, Defendant-Appellant.
    No. 16014-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Hal V. Lyons, Shreveport, for defendant-appellant.
    R. Clyde Lawton, Jr., Vivian, for plaintiff-appellee.
    Before PRICE, FRED W. JONES, Jr. and NORRIS, JJ.
   FRED W. JONES, Jr., Judge.

Defendant, W. Murray Smith d/b/a Ora Oil Company, appeals a judgment in favor of plaintiff, B.B. Winslett d/b/a Humphries Insurance Agency, for premiums due on insurance policies. The judgment of the trial court is amended and affirmed for the following reasons.

The evidence reveals that defendant, W. Murray Smith, and his business, Ora Oil Company, had obtained various insurance from plaintiff for approximately ten years. During this time, plaintiff simply automatically renewed the policies upon their expiration and sent the defendant the policy invoices reflecting the amount of premiums due. It appears that the defendant and plaintiff rarely had personal contact but rather conducted the bulk of their business through telephone calls and correspondence.

The insurance policies included workmen’s compensation, office contents, general liability and insurance on numerous vehicles. The vehicle fleet policy included farm vehicles, vehicles for the oil company, and personal vehicles. Plaintiff billed the defendant on a regular basis but payment on the account was somewhat irregular. Plaintiff testified that sometimes the defendant’s payment would be immediate and on other occasions would be late.

Defendant testified that in 1978 he became ill. He then proceeded to sell his farmland to his son, Michael Smith, and his oil business to his son, Terry Smith. It appears that the Ora Oil Company was sold to Terry Smith in January 1979 and then was incorporated later that month. The company was sold in October 1979 to a third party.

Although the policies were originally carried in the name of defendant and his business, plaintiff testified that she was instructed by Terry Smith to divide or pro rate the premiums reflected on the invoices between defendant, the oil company and Michael Smith. These premiums, however, were billed on one invoice.

There is conflict in the record as to when plaintiff was actually informed as to the sale of Ora Oil Company. Plaintiff Win-slett testified that she thought she was told of the sale in the middle of 1979, whereas defendant testified he had his secretary contact the agency when he sold the business to obtain the balance then due on his account. Defendant made several payments shortly thereafter which he believed to be the entire balance of his account.

Plaintiff continued to renew the various policies, subject to instructions by Terry Smith, and to forward the invoices. Plaintiff Winslett testified that no policies were ever returned to the agency by the defendant. Plaintiff was informed on or about May 1980, by the State Insurance Commission, that defendant had dual insurance coverage. Plaintiff states that this was the agency’s first notification that the defendant had placed his insurance with another agency. Plaintiff corresponded with defendant as to the amounts due for policy premiums for 1979-80, which defendant failed to remit.

Plaintiff then brought this action seeking $9,311.49 representing premiums due on an open account. After a trial on the merits, the court rendered judgment in favor of plaintiff in the amount of $3,944.75 together with legal interest thereon from May 27, 1979.

Defendant now appeals, asserting the following assignments of error:

(1)The trial court erred in finding that defendant, W. Murray Smith, owed plaintiff agency the sum of $3,944.75; and (2) the trial court erred in holding that an insurance agency issuing separate contracts of insurance could apply payments received on an open account basis rather than applying the payments on a “per policy” basis.

Plaintiff has not answered this appeal.

Reviewing the evidence, it is clear that the judgment of the trial court is not manifestly erroneous. See Arceneaux v. Domingue, 365 So.2d 1330 (La.1978). The invoices submitted at trial are for policies issued in the name of defendant and the oil business for 1979-80. The policies are for fleet vehicles, general liability, office contents, motor home and workmen’s compensation. The premiums reflected on the invoices were distributed among defendant, the business and Michael Smith pursuant to instructions. Although there is a conflict in the record, it is clear that the court found that defendant failed to promptly notify plaintiff as to the sale of the oil company and the appropriate course of action for plaintiff to take in insuring defendant.

Plaintiff made changes on the insurance policies when instructed and no policies were ever returned to plaintiff. Further, the court apparently found that defendant failed to notify plaintiff that he was placing insurance with another agency.

Defendant’s only defense appears to be that he had notified the agency of the sale of the company and subsequently the cancellation of this insurance and, therefore he did not believe he owed this debt. Defendant testified he paid a substantial amount on the account in 1979; however, plaintiff Winslett testified this payment was applied to premiums due for insurance from 1978-1979 and did not cover these premiums.

In computing the amount of premiums due, the court simply reviewed the invoices and assigned to defendant only the amounts which were distributed personally to him.

Defendant argues that the payments should have been applied on a “per policy” basis rather than applied on an open account. This court fails to see the relevancy of this argument in this particular case as plaintiff no longer claims statutory attorney fees. From the evidence, it appears that the parties had conducted business in a rather “loose fashion” for approximately ten years. Plaintiff would simply send defendant invoices reflecting premiums due and defendant would make somewhat irregular payments. The characterization of the relationship between these parties as an “open account” or otherwise would not appear to alter the outcome of this litigation.

The trial court awarded plaintiff legal interest on the entire amount from May 27, 1979, which was the date the premium on the vehicle fleet policy became due. The other policy premiums did not become due and payable until a later date. In other words, the trial court awarded legal interest on the entire amount of the indebtedness beginning May 27, 1979, even though a large portion of this indebtedness was not incurred until several months after that date. This is incorrect.

Civil Code Article 1938 states that legal interest is computed from the time that a debt becomes due.

As noted by the Supreme Court in Paul M. Davison, etc. v. L.T. Brown, etc., 364 So.2d 583 (La.1978), it is crucial to determine when a debt sued upon became due in order that a date may be fixed from which legal interest began to run on the sum awarded.

Examining the record in the instant case, the evidence is somewhat unclear as to when the debt became due. As noted earlier, there was no real understanding between the parties as to when the premiums became due and payable. Although plaintiff informed defendant of this indebtedness through various telephone calls and letters, it appears that no unequivocal demand for full payment was made until this litigation was instituted. Therefore, it is the opinion of this court that the only ascertainable date that the indebtedness became due was the date of judicial demand, December 17, 1981.

For these reasons, that portion of the judgment of the trial court awarding plaintiff, B.B. Winslett d/b/a Humphries Insurance Agency, $3,994.75 is affirmed; and the judgment is hereby amended to award legal interest from the date of judicial demand. All costs of this appeal are assessed to defendant, W. Murray Smith d/b/a Ora Oil Company.


author: MARVIN, Judge.

text:
    STATE of Louisiana, Appellee, v. Michael Allen GREEN, Appellant.
    No. 16035-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    M. Randal Fish, Indigent Defender Bd., Benton, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Henry N. Brown, Jr., Dist. Atty., James M. Bullers, Asst. Dist. Atty., Benton, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   MARVIN, Judge.

After pleading guilty, this defendant appeals, as excessive, his consecutive sentences at hard labor to 15 years for an aggravated crime against nature and to 50 years for an attempted aggravated rape. LRS 14:42, 89.1. We affirm.

The victim was the 11-year-old stepdaughter of defendant, who is a 36-year-old college graduate. Before pleading guilty, defendant admitted to either or both police and a psychiatrist who was a member of the sanity commission, that he committed numerous crimes against nature and at least two rapes against this stepdaughter. These were aggravated crimes because of the age of the child. He also admitted a prior act of criminal sexual contact with another young female relative and admitted that his sexual preference was for young girls. The psychiatrist characterized defendant as a person who was afflicted with the psycho-sexual disorder of pedophilia that clearly influenced his behavior and who had difficulty channeling his sexual feelings and excitements.

Defendant is technically a first offender who otherwise has not been physically abusive of the young females. He argues that his first offender and his mentally afflicted status and the fact that he has not otherwise physically abused his victims should have mitigated the sentences. Defendant cannot complain of the sentence for the aggravated crime against nature because he agreed to that term in his plea bargain. State v. Curry, 400 So.2d 614 (La.1981).

In the plea negotiations, the state agreed to reduce the charge of aggravated rape to the charge of attempted aggravated rape. Defendant admitted conduct which would have proved him guilty of aggravated rape and which would have carried the mandatory sentence of life imprisonment without benefit of parole, probation or suspension of sentence. LRS 14:89.1. The reduction in the charge was of substantial benefit to defendant and is a factor which may be considered by the sentencing judge. State v. Lanclos, 419 So.2d 475 (La.1982).

The trial court mentioned the admissions by the defendant and the conclusions of the psychiatrist. The trial court found that defendant’s complete lack of remorse was a further aggravating factor. The trial judge concluded that the defendant was likely to commit a similar offense if allowed his freedom. Another factor which the trial court found was important and that apparently influenced the trial court to impose the sentences was the defendant’s complete inability to understand the lasting psychological damage he had caused his young victim by sexually forcing himself upon her.

Under these circumstances, we find no abuse of discretion in the trial court’s imposition of the sentences and we AFFIRM.


author: SEXTON, Judge.

text:
    STATE of Louisiana, Appellee, v. Charles Ray GRIGSBY, Appellant.
    No. 16042-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Indigent Defender Office by John L. Sheehan, Ruston, for appellant.
    William J. Guste, Jr,, Atty. Gen., Baton Rouge, Tommy J. Adkins, Dist. Atty., Ru-ston, Joseph A. Cusimano, Jr., Asst. Dist. Atty., Farmerville, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The defendant was charged with aggravated rape of his wife’s ten year old daughter in violation of LSA-R.S. 14:42. By a plea bargain agreement, the defendant plead guilty to the responsive charge of forcible rape, LSA-R.S. 14:42.1. He was sentenced to eighteen years imprisonment at hard labor. On appeal, the defendant objects to the sentence as excessive.

At sentencing the trial judge relied on the facts presented in a pre-sentence investigation report. The Court noted the defendant’s past criminal record, including two felony charges which were reduced to misdemeanors for which the defendant received probated sentences. Relying on information from the PSI report indicating that the defendant sexually abused the victim on innumerable occasions for two years prior to the instant offense, the Court noted that this offense was highly likely to recur. Based on the defendant’s criminal record, on the reported on-going nature of his criminal acts toward the victim, and on the manner in which the instant offense was committed, incarceration of the defendant was found to be necessary. The Court articulated the seriousness of the defendant’s crime which involved the threat of physical harm had the victim resisted, and which undoubtedly entailed great physical and emotional distress to the victim. He found that the loss to the victim in this case was of an irreparable nature and could not be cured by compensation. The Court also noted that there was no justification, provocation, or substantial grounds for the offense, the victim in no way induced the crime, and the defendant would not suffer excessive hardship by the imprisonment.

The record reveals that the trial judge adequately complied with LSA-C. Cr.P. Art. 894.1 in particularizing the sentence to the offender and to the offense. The record also shows that the sentence imposed was not apparently severe. The defendant’s actions against his wife’s ten year old daughter clearly amounted to aggravated rape. See LSA-R.S. 14:42(4). The crime of aggravated rape carries a mandatory penalty of life imprisonment without benefit of parole, probation or suspension of sentence. In view of the benefit the defendant received by the plea bargain through a significant reduction in potential exposure to confinement, it was not an abuse of discretion for the trial judge to impose a sentence of less than one-half the maximum penalty for forcible rape, which is 40 years at hard labor.

The defendant’s sentence is affirmed.

AFFIRMED.


text:
    Ronnie Lee COATS, Plaintiff-Appellant, v. O & W STEEL & METAL PRODUCTS et al., Defendants-Appellants.
    No. 16051-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Gordon, Bailey & Associates, A Professional Law Corp. by Jack M. Bailey, Jr., Shreveport, for plaintiff-appellant.
    Bowers & Bowers by Gary A. Bowers, Shreveport, for defendants-appellees.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

In this workmen’s compensation case judgment was rendered in favor of claimant awarding benefits for total and permanent disability as a result of a post-traumatic stress disorder caused by injuries sustained in a tractor-trailer rig accident.

The employer, 0 & W Steel and Metal Products (0 & W) and its insurer appealed, contending the trial court was clearly wrong in awarding benefits in light of two automobile accidents plaintiff had subsequent to the work-related accident.

Plaintiff also appealed, alleging the trial court erred in finding his low back injuries were not caused by the work-related accident, and erred in awarding inadequate medical expenses and expert witness fees.

For the reasons hereinafter set forth, we affirm.

Facts

On September 25, 1981, plaintiff was driving a tractor-trailer rig (18 wheeler) owned by 0 & W Steel on Interstate 20 in the vicinity of Utah, Alabama. Plaintiff was in the process of transporting a load of steel from Birmingham to Odessa, Texas when the right front tire had a blowout, causing him to lose control of the truck. The rig left the interstate, struck a row of pine trees and came to a stop at an oak tree, throwing plaintiff on the dashboard in the process.

Plaintiff was rushed to a hospital in Utah, Alabama where he was treated for a broken wrist and back pain.

Plaintiff returned to Shreveport where Dr. McAlister, an orthopedic surgeon, began to treat his broken wrist. At the examination of October 19, 1981, plaintiff complained of neck and back pain as a result of the accident. After continued complaints of pain Dr. McAlister admitted plaintiff to Bossier Medical Center in late October 1981. He diagnosed plaintiff as having a cervical sprain. At that time he consulted with Dr. Long, a neurological surgeon. Dr. Long examined plaintiff and diagnosed the injuries as a myeloligamen-tous sprain and muscle spasms in the neck.

In November 1981 Dr. Burda, a rheuma-tologist, began treating plaintiff for his back and neck pain. He diagnosed plaintiff as having a traumatic myeloligamentous strain.

Due to plaintiffs physical injuries and his worsening emotional problems, Dr. Bur-da admitted him to Doctor’s Hospital on December 6, 1981. He concluded plaintiff had chronic traumatic fibromyositis and depression with psychotic tendencies.

During the early morning hours of December 13, 1981 plaintiff was involved in two separate automobile accidents.

On February 18,1982 plaintiff was examined by Dr. Rambach, an orthopedic surgeon, for 0 & W. He diagnosed plaintiff as having a ligamentous strain. However, he felt plaintiff could return to work at that time. Upon receipt of Dr. Rambach’s medical report in March 1982, 0 & W terminated compensation benefits.

On March 31, 1982 plaintiff began treatment by Dr. Hayes, a psychiatrist. Dr. Hayes diagnosed plaintiff’s condition as a post-traumatic stress disorder of the chronic type caused by a significant trauma.

Plaintiff continued to be treated by Dr. Long, Dr. Burda, and Dr. Hayes. Because of his unchanged physical condition, Dr. Long re-admitted plaintiff to Bossier Medical Center on April 30, 1982. His diagnosis was myeloligamentous sprain and psychological and functional problems.

Dr. Robert Holladay, another orthopedic surgeon, also began treating plaintiff in April 1982. His diagnosis was myeloliga-mentous strain in the lumber spine and chronic back pain.

On August 22, 1982 plaintiff was re-admitted to Doctor’s Hospital for treatment of his physical injuries and psychological problems.

Plaintiff never returned to work following the September 25, 1981 accident. Suit was filed on April 7, 1982, and trial was held on December 17, 1982 and January 6 through 13, 1983.

At trial plaintiff testified that due to the strenuous nature of his job he often had low back pain and received treatment for same prior to the truck accident. Additionally, Dr. Holladay testified plaintiff related to him two bending incidents in April 1982 which caused plaintiff low back pain.

Plaintiff also stated he had disabling neck and back injuries and severe emotional problems as a result of the truck accident.

Doctors Long, Burda and Hayes all testified that plaintiff is totally disabled due to his psychological problems. Dr. Long characterized these psychological problems as “overwhelming”. Dr. Burda stated plaintiff’s physical condition was unchanged over the course of treatment but his mental condition deteriorated to the point where plaintiff was one of the most serious mental cases he had treated. Dr. Hayes opined that plaintiff’s post-traumatic stress disorder was the result of injuries sustained in the truck accident. He recommended intensive therapy for the mental condition.

In addition, numerous lay witnesses testified plaintiff was suffering from severe emotional problems related to the truck accident and they corroborated plaintiff’s complaints of neck and back pains.

Based on this testimony, the trial court held plaintiff was suffering from a mental condition caused by the upper back and neck injuries sustained in the truck accident, which renders him permanently and totally disabled. In so holding the trial court rejected defendant’s contention that the two automobile accidents on December 13, 1981 caused or aggravated plaintiff’s physical problems.

However, the trial court held plaintiff failed to prove his lower back injuries were caused by the truck accident. The trial court based this decision on the testimony of plaintiff and Dr. Holladay.

On appeal defendant alleges the trial court was clearly wrong in awarding benefits for psychological damage arising out of the truck accident. Defendant contends plaintiffs subjective complaints of injury were caused by the two automobile accidents of December 13, 1981, and plaintiff was able to return to work in November 1981 or March 1982.

“It is well established that on appellate review, the trial court’s factual findings as to disability are entitled to great weight. They are not to be disturbed in the absence of manifest error.”
Batiste v. Pointe Coupee Constructors Inc., 401 So.2d 1263 (La.App. 3rd Cir. 1981)

See also Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978).

Our careful review of the record reveals no manifest error in the trial court’s factual finding that plaintiff was permanently and totally disabled as a result of the psychological condition caused by injuries sustained in the truck accident. The testimony of Dr. Long, Dr. Burda and Dr. Hayes supports this finding. Clearly, plaintiff was unable to return to work in November 1981 or March 1982 as contended by defendant.

The trial court also correctly rejected defendant’s assertion that the automobile accidents caused or aggravated plaintiff’s injuries. Plaintiff complained of neck and back injuries approximately two months prior to the automobile accidents and his complaints after the accident were consistent with those before the accident.

On appeal plaintiff alleges the trial court erred in denying him benefits for low back injuries. However, the trial court finding of fact that the low back injuries were not the result of the truck accident is amply supported by the record; therefore it will not be disturbed on appeal.

In addition, medical expenses incurred in the treatment of low back pain were properly disallowed by the trial court.

Plaintiff also alleges the trial court set inadequate expert witness fees.

“An award of expert witness fees lies within the discretion of the trial judge and will not be altered absent a showing of an abuse of discretion. Kelley v. Stringer, 422 So.2d 189 (La.App. 2d Cir. 1982).

Under the circumstances, an expert witness fee of $100 per expert is not an abuse of the trial judge’s discretion.

For the reasons set forth above, we affirm the judgment of the district court, with costs of appeal assessed one-half to each appellant.


text:
    STATE of Louisiana, Appellee, v. Zachery T. FARRIS, Appellant.
    No. 16,117-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Nathaniel Graves Thomas, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Dale G. Cox, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, MARVIN and SEXTON, JJ.
   SEXTON, Judge.

The defendant, Zachary T. Farris, was charged by Grand Jury indictment with the Second Degree Murder of Geraldine Farris, his wife, in violation of LSA-R.S. 14:30.1. The defendant was convicted by a unanimous jury of the offense of manslaughter in violation of LSA-R.S. 14:31. The defendant was sentenced to 17 years at hard labor and appeals his sentence as excessive. Finding no abuse of discretion in the trial court’s imposition of this sentence, we affirm.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits, and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Square, 433 So.2d 104 (La.1983); State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La. App. 2d Cir.1983).

The defendant in this case had the benefit of an exhaustive evidentiary presentation at trial and a lengthy sentencing hearing. There were a number of inconsistencies between the various witnesses who testified at trial. However, the basic facts of this criminal incident are as follows: On the 4th of June, 1982, the defendant, Zachary T. Farris, went to the residence of his estranged wife, Geraldine Far-ris. Mr. Farris obtained entry to the home carrying a short-barreled single-shot .410 gauge shotgun. Mr. Farris had been drinking prior to the time of this entry, Mrs. Farris returned to the residence with her two children, ages 10 and 5. Mrs. Farris apparently detected that someone had tried to make an entry into her residence and returned to the grocery store at which she had been shopping to obtain the assistance of the security guard at the store. This security guard, who was actively sought by the prosecution prior to the trial but who was unavailable for trial, returned to the residence with Mrs. Farris. Mrs. Farris and her older child, a girl, entered the home.

Shortly thereafter, Mr. Farris chased Mrs. Farris from the residence brandishing the shotgun and a .32 caliber revolver owned by Mrs. Farris. The security guard, still present in the front yard of the residence, was accosted by Mr. Farris, relieved of his .38 caliber revolver and chased away from the residence by the discharge of the shotgun in close proximity to his head. The defendant then chased the victim of the homicide firing four shots into her with a revolver taken from the security guard, which resulted in her death. The first shot struck her in the chest, penetrated her heart and exited through her back. The other three shots were fired into the victim’s hip area while she lay on the ground. The defendant subsequently fled the scene, but surrendered himself to police authorities later that same evening.

In strongly urging that the trial court misapplied the guidelines of LSA-C.Cr.P. Art. 894.1, the defendant essentially asserts a number of points which were in serious contention at trial. These points, if accepted, tend to establish that the defendant acted in self-defense and contradict the State’s theory of the events. However, in his well-articulated compliance with LSA-C.Cr.P. Art. 894.1, the trial court indicated that defendant’s drinking, the emotionally charged atmosphere surrounding the estrangement of this husband and wife, and the presence of another man (the security guard) during the incident lent credence to the jury’s conclusion of manslaughter. The trial court concluded, as did the jury, that the shooting of the victim in this incident was not justifiable, and the trial court noted that the victim neither induced or facilitated the offense. Thus the issues argued by the defendant in mitigation of sentence were resolved adversely to him by the jury, and the trial court’s reasons for sentence show a concurrence in that determination. Moreover, the conduct of the defendant in this incident not only caused the death of Geraldine Farris, but also threatened death or serious bodily harm to the security guard and two small children.

Thus, under the circumstances here presented, we are unable to say that this 17 year sentence for the death of another, in this emotionally charged atmosphere, by a defendant who had been drinking, where the conduct threatened harm to others, is an abuse of discretion. The sentence of the defendant is affirmed.

AFFIRMED.


author: NORRIS, Judge.

text:
    STATE of Louisiana, Appellee, v. George KNIGHTON, Jr., Appellant.
    No. 16,126-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Edward L. Henderson, Grambling, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Tommy Adkins, Dist. Atty., Ruston, Joseph A. Cusimano, Jr., Asst. Dist. Atty., Farmerville, for appellee.
    ' Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Defendant, George Knighton, Jr., appeals a jury conviction of attempted second degree murder in violation of La.R.S. 14:27 and 30.1 and the resulting sentence of twenty years imprisonment at hard labor without benefit of parole, probation or suspension of sentence [See La.C.Cr.P. Art. 893.1], assigning three errors:

(1) The court erred in sentencing defendant to 20 years at hard labor because said sentence was excessive and not required for rehabilitative purposes;
(2) The testimony herein was conflicting and without solid foundation upon which to return the verdict of guilty as charged; [and]
(3) The court erred in sustaining State’s objection to relevancy of incidents occurring prior to the matter being heard in court.

We have considered these assignments in reverse order, and finding no merit therein, we affirm.

FACTS

On October 2, 1982, defendant and his girlfriend, Doris Knighton, attended a wedding reception at the home of a friend whose son had been married. Several hours prior to arriving at the reception, defendant had sent his girlfriend to the home of a friend to obtain a .22 pistol and two bullets. Upon arriving at the location of the reception, the defendant informed his girlfriend that there was going to be “some shooting tonight.” When the defendant exited his vehicle, he had the pistol at belt level inside his pants. Words were exchanged between the defendant and the victim inside of the house and both went into the yard of the residence where the reception was being held. There, more words were exchanged between the two after which the defendant pulled the gun and shot the victim in the back. The victim then turned, advanced toward the defendant and was shot again in the chest. The defendant continued to point the gun at the victim and pull the trigger but the gun did not fire again. The victim continued to advance upon the defendant and they began struggling over the gun. The victim at some point after the two shots were fired pulled a knife and stabbed the defendant during the struggle.

ASSIGNMENTS OF ERROR NOS. 2 AND 3

In connection with these assignments of error which are briefed together, the defendant first argues that the testimony presented at trial was conflicting and without solid foundation upon which to return a verdict of guilty as charged. In effect, the defendant, who claimed that the shooting was done in self defense, asks that we evaluate the credibility of the witnesses and overturn the trier of fact on its factual determination of guilt. This is not the function of the court on appeal. See State v. Richardson, 425 So.2d 1228 (La.1983); State v. Williams, 448 So.2d 753 (La.App.2d Cir.1984); State v. Wilkerson, 448 So.2d 1355 (La.App.2d Cir.1984). Because it is the role of the fact finder to weigh the respective credibilities of the witnesses, an appellate court will not second-guess the credibility determinations of the trier of fact beyond the sufficiency evaluations under the Jackson v. Virginia standard of review. State ex rel Graffagnino v. King, 436 So.2d 559, (La.1983); State v. Williams, supra; State v. Wilkerson, supra.

Evidence is sufficient to support a conviction when any rational trier of fact in viewing the evidence in the light most favorable to the prosecution, could have concluded that the essential elements of the crime were proved beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The defendant was tried for attempted second degree murder. La.R.S. 14:27 provides:

A. Any person who, having a specific intent to commit a crime, does or omits an act for the purpose of and tending directly toward the accomplishing of his object is guilty of an attempt to commit the offense intended; and it shall be immaterial whether, under the circumstances, he would have actually accomplished his purpose.
B. Mere preparation to commit a crime shall not be sufficient to constitute an attempt; by lying in wait with a dangerous weapon with the intent to commit a crime, or searching for the intended victim with a dangerous weapon with the intent to commit a crime, shall be sufficient to constitute an attempt to commit the offense intended.
C. An attempt is a separate but lesser grade of the intended crime; and any person may be convicted of an attempt to commit a crime, although it appears on the trial that the crime intended or attempted was actually perpetrated by such person in pursuance of such attempt.
D. Whoever attempts to commit any crime shall be punished as follows:
(1) If the offense so attempted is punishable by death or life imprisonment, he shall be imprisoned at hard labor for not more than fifty years.
* * * * * *
La.R.S. 14:30.1 provides:
Second degree murder is the killing of a human being:
(1) When the offender has a specific intent to kill or to inflict great bodily harm; or
(2) When the offender is engaged in the perpetration or attempted perpetration of aggravated rape, aggravated arson, aggravated burglary, aggravated kidnapping, aggravated escape, armed robbery, or. simple robbery, even though he has no intent to kill or to inflict great bodily harm.
Whoever commits the crime of second degree murder shall be punished by life imprisonment at hard labor without benefit of parole, probation, or suspension of sentence.

Thus, it was necessary that the state prove beyond a reasonable doubt that the defendant had a specific intent to kill the victim or to inflict great bodily harm upon him and engaged in some act in an attempt to accomplish this purpose. The evidence conclusively shows that the defendant shot the victim first in the back and then in the chest, all before the victim displayed any weapon. The testimony of the defendant’s girlfriend who testified on behalf of the defense shows that the defendant sent her to obtain the gun which was used and two bullets and that the defendant told her before leaving his vehicle that she should be careful because there was going to be some shooting.

In connection with this argument, defendant contends that the trial court erroneously sustained the state’s objection to conversations between the defendant’s girlfriend and the victim. The conversation sought to be admitted occurred a week prior to the shooting and consisted of the victim’s telling the defendant’s girlfriend not to be afraid of the victim or to talk to the victim. After hearing this testimony outside the presence of the jury, the trial court sustained the state’s objection on the grounds of relevancy.

A trial court has broad discretion in determining the relevancy of evidence and its determination will not be set aside absent a clear abuse of discretion and a showing of prejudice by the defendant. State v. Allen, 440 So.2d 1330 (La.1983). Relevancy of evidence is determined by the purpose for which it is offered. State v. Kahey, 436 So.2d 475 (La.1983). This evidence was sought to be introduced to support the defendant’s position that he had shot the victim in self defense. We conclude that the statement sought to be admitted in and of itself would not have supported the claimed defense; therefore, we are unable to say that the trial court’s determination that this statement should be excluded was a clear abuse of discretion which prejudiced the defendant.

Applying the proper sufficiency standard of review, we conclude that any rational trier of fact could have found the essential elements of the crime of attempted second degree murder proved beyond a reasonable doubt.

These assignments of error are without merit.

ASSIGNMENT OF ERROR NO. 1

In connection with this assignment, the defendant contends that the trial court erred in imposing a sentence which was excessive, harsh, and without necessity for purposes of rehabilitation.

In sentencing this defendant, the trial judge stated that he had carefully reviewed the pre-sentence investigation report which was stated to form a significant basis for the sentence imposed. The trial judge further noted that he had paid careful attention to the testimony presented at trial. The trial judge felt that because of the manner in which this shooting occurred that there would be a significant risk that during the period of any suspended sentence, that the defendant would commit another crime, particularly one similar to the instant offense. This conclusion was based on the defendant’s past criminal record which reveals numerous instances of crimes involving force or weapons, including battery, illegal use of weapons, aggravated assault, and carrying a concealed weapon. It was therefore concluded that the defendant was in need of correctional treatment that could be provided most effectively by commitment to an institution and that a lesser sentence than the one imposed would deprecate the seriousness of the defendant’s crime. It was the trial judge’s firm opinion that not only did the defendant clearly cause and threaten serious bodily harm to the victim but that the defendant contemplated that his criminal conduct would cause or threaten serious harm. The trial judge went on to reject the defendant’s contention that he was acting in self defense and stated that there were no grounds whatsoever tending to excuse or justify the defendant’s conduct. It was further found that the victim had not induced or facilitated in the commission of the offense. It was concluded that the defendant has a significant prior history of criminal activity and that he does not show any indication of being able to engage in proper social conduct. It was concluded that based on his past acts defendant’s actions were the results of circumstances likely to recur. It was particularly noted that after the instant offense occurred, that defendant was involved in another incident in which another individual was actually killed. While defendant’s poor health was noted, that fact was not felt to militate in favor of a lighter sentence than the one imposed.

Our review of the record reveals meticulous compliance with La.C.Cr.P. Art. 894.1 in sentencing this defendant. When Article 894.1 has been complied with, a sentence should not be set aside as excessive in the absence of a clear abuse of the wide discretion accorded a trial, judge in the imposition of sentences within statutory limits. State v. Trahan, 425 So.2d 1222 (La.1983).

We find no such abuse in the instant case. The extended imprisonment is not needless and purposeless but is imposed to negate the defendant’s opportunity to commit such crimes in the future. Accordingly, the sentence is not excessive.

For the foregoing reasons, the defendant’s conviction and sentence are affirmed.

CONVICTION AND SENTENCE AFFIRMED.


author: PRICE, Judge.

text:
    Cora C. TAYLOR, Plaintiff-Appellant, v. KROGER COMPANY, INC., Defendant-Appellee.
    No. 16146-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Joseph W. Greenwald, Shreveport, for plaintiff-appellant.
    Lunn, Irion, Switzer, Johnson & Salley by James B. Gardner, Shreveport, for defendant-appellee.
    PRICE and HALL, JJ., and ENOS C. McCLENDON, J. Pro Tem.
   PRICE, Judge.

The plaintiff in this personal injury suit appeals the trial court judgment denying her claim for damages against the defendant grocery store in which she tripped and fell. The issue is whether the plaintiff has proved negligence and/or fault on the part of defendant in failing to maintain a safe exit to its premises.

The incident in question occurred at approximately 9:30 one morning when plaintiff, a 76-year-old woman, entered the Kroger store to buy a loaf of bread. After making her purchase, she proceeded to exit the premises with a small grocery sack in her hand and her purse over her arm. She was wearing flat shoes with a strap across the instep.

There are two entrance and exit doors in this particular store with a foyer in between. The foyer contained a large heavy mat which was allegedly located in front of the exit door. Upon approaching the second exit door, plaintiff tripped and fell on her right side, landing with part of her body inside the door and part of it out. One of her shoes had come off her foot and the strap was unbuckled. Plaintiff claimed she fell because she tripped over the heavy mat in front of the door. She filed this suit against Kroger, contending that the store’s exit was unsafe due to the presence of the unsecured mat. After trial on the merits, the lower court dismissed plaintiff’s claim without written reasons. Plaintiff appealed this judgment, maintaining that the store’s premises were unsafe.

We recognize that a storekeeper has an affirmative duty to exercise reasonable care to keep his floors in a safe condition. He is not, however, the insurer of the safety of his patrons. See Smith v. Reliance Insurance Company, 431 So.2d 907 (La. App. 2d Cir.1983) and cases cited therein.

In any event, plaintiff has the burden of proving by a preponderance of the evidence that a premise hazard caused her fall and her injury, whether recovery be predicated on negligence or strict liability. Johnson v. Insurance Company of North America, 360 So.2d 818 (La.1978). Plaintiff must at least establish prima facie case, i.e., that a hazardous condition existed and that it caused his injury. Albritton v. J.C. Penney Co., Inc., 385 So.2d 549 (La.App. 3d Cir.1980), writ denied 393 So.2d 727 (La.1980). That burden of proof was not met in the instant case.

Plaintiff testified that she had been in and out of this particular store many times before the day of the accident. As she exited the store on the day of the incident, she was carrying only her purse and a small grocery sack. At trial she testified simply that she tripped on the mat and fell through the door. She admitted in deposition that she could not honestly say the mat was buckled or folded causing her to trip on it since she did not see the mat before or after she fell.

The assistant manager of the store testified that, upon the occurrence of the accident, she checked the foyer for spills or debris, but saw none. She did notice that plaintiff had one shoe off and one shoe on. She further testified that she did not recall where the mat was at the time of the accident, but it was normally placed in front of the entrance, since its purpose was to collect excess dirt and water from the shoes of patrons as they entered the store. The Kroger employee in charge of maintenance testified that he saw the plaintiff lying in the doorway after her accident, but noted nothing out of the ordinary with regard to the foyer’s condition. It was his impression that the mat was in its proper place in front of the entrance, but he could not so testify with certainty. There were no eyewitnesses to plaintiff’s fall.

There is nothing in the evidence to demonstrate that the mat, even if it had been positioned in front of the exit door, was awry or created an unusual risk of harm. Therefore, although we are cognizant of the high duty of store owners to their patrons to maintain their doors in a reasonably safe condition, we find no breach of that duty has been proven by this plaintiff. There is likewise no evidence to show that the mat itself constituted a premise hazard. Plaintiff must establish custody, causation, and defectiveness in order to recover under strict liability. Smith v. Reliance Insurance Company, supra.

The mat is constructed of a heavy rubber backing which clings to the floor, with a carpet overlay ending approximately one and a half inches from the outer edge of the mat. The rubber outer edge of the mat tapers down to a very thin width so that it initially rises less than a quarter of an inch off the floor. Due to the heavy rubber backing, the mat does not crumple or fold easily. Nor is it likely one’s foot would slide underneath this mat.

We conclude plaintiff’s evidence does not constitute a showing that the mat was defective, i.e., unreasonably dangerous to normal use. Plaintiff has further failed to establish that the mat was a causative factor in her fall, since it would be equally reasonable to conclude that plaintiff’s loss of her shoe caused her fall. Therefore, we cannot say that the trial court erred in concluding that plaintiff failed in her burden of proof and in denying plaintiff’s claim for damages.

For the foregoing reasons, the judgment appealed is affirmed. All costs of this appeal are assessed against plaintiff-appellant.

AFFIRMED.


text:
    Doris Wiley HARRELL, et al., Plaintiffs-Appellees, v. EMPIRE FIRE AND MARINE INS. CO., et al., Defendants-Appellants.
    No. 16149-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Hayes, Harkey, Smith & Cascio by Charles S. Smith, Monroe, for defendants-appellants.
    Blackwell, Chambliss, Hobbs & Henry by Sam 0. Henry, III, West Monroe, for plaintiffs-appellees.
    Before MARVIN, McCLENDON and NORRIS, JJ.
   MARVIN, Judge.

In this appeal of a judgment in a wrongful death action awarding damages to decedent’s widow and major children, defendant contends that the award for loss of support should be reduced and that the award for decedent’s pain and suffering should be disallowed.

We amend the judgment to delete the award for decedent’s pain and suffering because plaintiffs did not prove that decedent was conscious when he suffered death by drowning. Otherwise, we affirm.

FACTS

The 65-year-old decedent had been a Jack’s Cookie distributor for most of his adult life. About three months before his fatal accident he transferred his business to his son and went into “semi-retirement,” consulting with and helping his son in some respects for a salary of $125 per week. On the afternoon of November 10, 1982, decedent was driving a truck belonging to the business when it was knocked from the highway when defendant’s tractor-trailer violently ran into the rear end of the truck. The truck overturned in a ditch off the highway and decedent’s body was found in the truck when it was removed from the water.

The Richland Parish Coroner, who saw the body in a hospital emergency room shortly after it was recovered, found a “loose” upper jawbone and a laceration through the soft tissue of the right frontal area of decedent’s forehead. He determined that decedent died from asphyxia secondary to drowning. The coroner said that it was possible that decedent was unconscious when he drowned and that there was no evidence, such as is sometimes found in other drowning cases (the hand or hands clutching something or the palm being cut by the fingernails) that would forensically prove that decedent was conscious and struggling when he drowned.

THE SURVIVAL ACTION

The trial court erred in awarding damages for decedent’s pain and suffering before death. Plaintiffs had the burden of proving by a preponderance of the evidence that the decedent was conscious following the impact and before he drowned. See Chausse v. Southland Corp., 400 So.2d 1199 (La.App. 1st Cir.1981), writ den., and McDaniel v. Welsh, 234 So.2d 833 (La.App. 1st Cir.1970), writ ref.

The testimony of the coroner and his description of the physical state of the body after death does not preponderate that decedent was conscious, but indicates to the contrary. Plaintiffs did not meet their burden of proof. Compare Scott v. State, Dept. of Transp. and Develop., 424 So.2d 284 (La.App. 1st Cir.1982), writ den., where an assistant coroner gave expert testimony to the contrary.

LOSS OF SUPPORT

Defendant contends that the trial court’s award of $27,957 is excessive because it was based on a period greater than the projected work life expectancy of decedent.

Plaintiffs’ economic expert determined decedent’s work life expectancy was 3.4 years and his life expectancy was 13.9 years. Defendant’s economic expert determined the same work life expectancy and did not estimate loss of earnings past the work life expectancy. Each expert discounted his gross figures and allowed for personal consumption. Plaintiffs’ expert used a 25 percent consumption rate as opposed to the 30 percent rate of defendant’s expert. Plaintiffs’ expert used a 6½ percent discount factor while defendant’s expert used 10 percent. Using decedent’s life expectancy and the factors mentioned, plaintiffs’ expert opined that $42,528 was an appropriate figure for future loss of support. Using only the work life expectancy and the factors mentioned, defendant’s expert concluded that $10,701 was appropriate. The respective estimates of the experts for loss of support from the time of the accident to the date of the trial were more closely aligned, $2,906 and $2,684.

The trial court’s award was for total loss of support and did not distinguish between the periods before and after trial. Considering that the business that was transferred to his son was near decedent’s home, the closeness of the relationship, and the son’s testimony that it would endure “forever,” we cannot say that the trial court’s award of $27,957 constitutes a clear abuse of discretion. See Reck v. Stevens, 373 So.2d 498 (La.1979).

„DECREE

We amend the judgment to delete the $15,000 award in the survival action and, as amended, affirm the judgment. Costs of this appeal are assessed one-half to each group of litigants.


text:
    STATE of Louisiana, Appellee, v. Marvin ARTERBERRY, Appellant.
    No. 16,154-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Nesib Nader, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara B. Rutledge, Asst. Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., Richard Carney, Catherine M. Estopinal, Asst. Dist. Attys., Shreveport, for appellee.
    Before HALL, JASPER E. JONES and SEXTON, JJ.
   SEXTON, Judge.

The defendant, Marvin Arterberry, was charged by bill of information with DWI-4th offense, under LSA-R.S. 14:98. The defendant entered a plea of guilty to DWI-3rd offense under LSA-R.S. 14:98, which carries a statutory penalty of not less than one nor more than five years at hard labor. The defendant was sentenced to two years at hard labor and appeals his sentence as excessive. Finding no abuse in the trial court’s imposition of a two year hard labor sentence for this offense, the defendant’s sentence is affirmed.

It is well-settled that the sentencing judge is given wide discretion in imposing a sentence within the statutory limits and such a sentence should not be set aside as excessive in the absence of a manifest abuse of discretion by the sentencing judge. State v. Hammonds, 434 So.2d 452 (La.App. 2d Cir.1983); State v. Brooks, 431 So.2d 865 (La.App. 2d Cir.1983); State v. Square, 433 So.2d 104 (La.1983).

The sentencing guidelines of LSA-C.Cr.P. Art. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983); State v. Sepulvado, 367 So.2d 762 (La.1979). While the trial judge need not articulate every aggravating and mitigating circumstance outlined in Art. 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Hammonds, supra; State v. Cunningham, 431 So.2d 854 (La.App. 2d Cir.1983); State v. Smith, 433 So.2d 688 (La.1983).

In sentencing the defendant the trial court articulated the defendant’s criminal history. The defendant had offenses of DWI and misdemeanor theft in Oklahoma City, Oklahoma in 1962. The defendant’s record of convictions in Shreveport include drunk and disorderly conduct in 1966; DWI, 1975; DWI, 1978; DWI, October 12, 1979; DWI, October 27, 1979; no driver’s license and simple drunk, 1981; DWI, 1981; and the instant offense of DWI in April of 1982. The trial court articulated the defendant’s good work record and good military history as tending to mitigate the offense. The Court articulated that no substantial hardship would be visited upon the family of the defendant since he was separated from his wife and provided only occasional support to his children. Finding no abuse of discretion in the trial court’s imposition of a two year hard labor sentence under these circumstances, the sentence of the defendant is affirmed.

AFFIRMED.