author: GULOTTA, Judge. REDMANN, Chief Judge,

text:
    SOUTHEAST EQUIPMENT CO., INC. v. OFFICE OF STATE POLICE, TROOP B, Department of Public Safety, State of Louisiana.
    No. CA-0646.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 13, 1983.

      Charles D. Lancaster, Jr., Metairie, for appellant.
    Ronald J. Hof, New Orleans, for appellee.
    Before REDMANN, C.J., and GULOTTA and LOBRANO, JJ.
   GULOTTA, Judge.

In this case involving the sale of a stolen movable, we are confronted with the competing possessory rights of a true owner and an innocent purchaser. From a judgment recognizing the purchaser’s superior right to possession, the owner appeals. We affirm.

According to the stipulated facts, Southeast Equipment Co., Inc. (Southeast) purchased, in good faith, a stolen 1979 Caterpillar Loader for $54,000.00 from C. Ogle, through his agent Hattaway International, Inc. (Hattaway). Hattaway is a corporation that customarily sells heavy equipment such as this loader, but Ogle is not. Ogle had consigned the loader to Hattaway for sale.

About two weeks after the sale, the Louisiana State Police seized the machine from Southeast, pursuant to a search warrant alleging it was stolen. Southeast thereafter filed this mandamus action against the State Police to demand return of the machine. J.W. Conner and Son Construction Co. (Conner), owner of the loader at the time it was stolen, intervened and also sought possession.

The trial court rendered judgment ordering the State to return the machine to Southeast as a “good-faith possessor” until Conner reimbursed Southeast the $54,000.00 purchase price. The trial judge reached his decision based on LSA-C.C. Art. 524, which states in pertinent part:

“The owner of a lost or stolen movable may recover it from a possessor who bought it in good faith at a public auction or from a merchant customarily selling similar things on reimbursing the purchase price.”

According to the trial judge, Southeast had a “greater right” to the movable because LSA-C.C. Art. 524 is an “exception” to LSA-C.C. Art. 521, which provides that a person “who has possession of a lost or stolen thing may not transfer its ownership to another.”

Citing LSA-C.C. Art. 521 and LSA-C.C. Art. 2987, Conner contends, on appeal, that neither the suspected thief Ogle, nor his agent, Hattaway, could transfer ownership of the stolen movable. Conner argues that LSA-C.C. Art. 524 has no application because Southeast purchased the machine from Ogle, who is not a “merchant customarily selling” heavy equipment. We disagree.

LSA-C.C. Art. 524 does not expressly require that the “merchant customarily selling similar things...” be the apparent owner of the thing sold; it specified that the good faith purchaser buy it “from” the merchant. We interpret this language to encompass not only direct sales of movables from the merchant’s own inventory, but also consignment sales, as in our case, where the merchant is acting as an agent on behalf of someone else who purports to be the owner.

Under our interpretation of LSA-C.C. Art. 524, the sine qua non for application of the article is a dealing between the good faith purchaser and a merchant customarily selling similar things. We conclude that if such a merchant conducts the sale, LSA-C.C. Art. 524 applies, whether the merchant is acting as apparent owner or only as an agent for another. This interpretation is consistent with the legislative recognition of the need for balancing the rights of a good faith purchaser and an owner, and comports with the preservation of security of transactions.

We are further persuaded to reach this conclusion by the ambiguous wording of the act of sale in our case. Hattaway’s printed “BILL OF SALE_EQUIPMENT” contains the following warranty of title to Southeast, the “Grantee”:

To have and to hold all and singular the said goods and chattels to said Grantee, his successors and assigns. The undersigned covenants with said Grantee that undersigned is the lawful owner of said chattels; that they are free from encumbrances; that undersigned has a good right to sell the same; that undersigned will warrant and defend same against the lawful claims and demands of all persons.

Although the bill of sale is signed by Hattaway as “Agent for Owner: C. Ogle... ”, it conveys an impression that Hattaway is the “undersigned” who is selling the machine and warranting the title. Ogle did not sign the bill of sale. A copy of the sales agreement between Hattaway and Ogle, which would have further clarified Hattaway’s status as agent, was not incorporated in the sale document. Under these circumstances, Southeast could justifiably have believed that it was dealing with an established heavy equipment seller who had a right to sell the loader. Accordingly, we conclude that Southeast purchased the stolen movable “from a merchant customarily selling similar things”, and “in good faith” within the meaning of LSA-C.C. Art. 524.

We are mindful of the competing equities between the true owner and the good faith purchaser who are both innocent victims. Nonetheless, interpreting the language of LSA-C.C. Art. 524, we must give effect to the Legislature’s apparent intent to weigh the equities in the purchaser’s favor under these circumstances. Conner’s recourse may be against Hattaway or any other party responsible for the loss.

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

AFFIRMED.

REDMANN, C.J., dissents and assigns reasons.

REDMANN, Chief Judge,

dissenting.

The basic posture of this suit is that Southeast Equipment, a Louisiana corporation, demands mandamus against the Louisiana state police to return to Southeast a 1979 Caterpillar 950 loader, serial no. 81J12566, that the police seized under a warrant. The affidavit by Trooper First Class Joseph Mura in support of that warrant’s issuance recites that

“On 11-13-81 ... Sgt. P. Hamburger was contacted by one Det. Perry Young of the Hillsbourgh County S[heriff’s] Offfice], Tampa, Florida. Det. Young advised that he had received information from one J.B. Cole W/M 38, of 501 E. Cooper St., West Memphis, Arkansas, that a 1979 Caterpillar Model 950 front end loader serial # 81J12566 was located in the New Orleans area at [a described location]. Det. Young further advised that said vehicle was reported stolen on 10-28-81 [the date of Southeast’s purchase of it in Florida from Hattaway as, purportedly, agent for Ogle] .... At approximately 4:50 p.m. this date [of the seizure] affiant telephonically contacted Mr. Cole. Subject identified himself as the general manager of the Razorback Concrete Co. of 501 E. Cooper West Memphis Arkansas. Mr. Cole stated that on 11-03-81 [six days after Southeast’s purchase and the report of the theft ] he had sent one E.J. Hart W/M 49 head mechanic of Razorback Concrete to New Orleans to inspect the above front end loader in order to purchase same. Mr. Hart did go and returned with his report on the vehicle and its serial No. 81J12566. Mr. Cole in the morning hours of 11-13-81 [the date of the affidavit, warrant and seizure] while in the process of purchasing said vehicle, contacted the Rozier Co. of Tampa FL. the original seller of said ve-hide. Rozier representatives advised that a vehicle of the description of the above front end loader had been stolen several weeks previously from the J.W. Conner and Son Construction Co. of Tampa FL. Mr. Cole advised that a short time later he was contacted by Det. Perry Young and reconfirmed the serial no. of said equipment.”

If Razorback Concrete in Arkansas so easily learned that it was a stolen loader that Southeast was trying to peddle just six days after buying it in Tampa, why did not Southeast learn that it was a stolen loader that Hattaway was trying to sell (apparently the same day it was reported stolen). (As an aside, one wonders why professional seller Hattaway, which proclaims itself “The Company Founded on Integrity,” did not know that the loader was stolen.)

The stipulation that Southeast did not know that the loader was stolen is not a stipulation that Southeast was in good faith for purposes of La.C.C. art. 524. Art. 521 declares one in good faith “unless he knows, or should have known, that the transferor was not the owner.” (Emphasis added.) There is no stipulation that Southeast should not have known that the loader was stolen. Judging from the quoted affidavit, the least that can be said is that Southeast does not appear to be a good faith purchaser.

Thus, even if Louisiana law governed the effect of the Florida sale of a thing stolen in Florida from a Florida owner, the judgment appealed from should be reversed and there should be judgment for the owner.

      . The stipulation does not state that Southeast was a “good faith” purchaser. The stipulation states: “Southeast did not know that the loader was stolen or that Hattaway could not sell it.” See also LSA-C.C. Art. 523 for a definition of good faith. Conner acknowledges in brief, however, that Southeast purchased in “good faith”.

      . LSA-C.C. Art. 2987 provides:
      “The object of the mandate must be lawful, and power conferred must be one which the principal himself has a right to exercise.”

      . LSA-C.C. Art. 524 is a reproduction of former LSA-C.C. Art. 3507 of the Louisiana Civil Code of 1870, as incorporated in the Revised Civil Code by Acts 1979, No. 180, and comes from the Code Napoleon, Art. 2280.
      For a history of the rules governing the conflict between an owner and a good faith purchaser of a stolen movable, see “Comment, Sales of Another’s Movables — History, Comparative Law, and Bona Fide Purchasers”, 29 La.L.Rev. 329 (1969).

      . See Restatement (Second) of Torts § 233; Restatement (Second) of Agency § 343.

      . The intriguing question of La.C.C. 524’s application to one who in good faith bought from a merchant, knowing the merchant to be the agent for a non-merchant owner, need not be decided, because Florida law governs this case (and Southeast is not in good faith for Louisiana law purposes anyway). But one may note the importance of articles 2505 and 3013 in the overall scheme of the Louisiana Code.
      Art. 2505 entitles a buyer, in case of loss of the thing because of a third person’s claim (“eviction”), to recover the price from the seller, “[e]ven in case of no warranty .... ”
      On the other hand, art. 3013 provides that an agent has no responsibility “to those with whom he contracts, [except] when he has bound himself personally, or when he has exceeded his authority without having exhibited his powers [of attorney].”
      Thus the merchant would appear to be liable to return to the buyer the price of a stolen thing if the merchant were the seller, but not if the merchant were but the agent of the seller.
      The legislature by the 1979 revision of the property articles did not intend to shield professional sellers from responsibility for selling stolen items, for that article is substantially identical to its source, art. 3507 as worded in 1870, and thus presumably not in conflict with article 2505 of the 1870 Code. The professional seller would thus owe the restitution of the price to the good faith buyer under art. 2505 (and thus the owner who pays it to the buyer under art. 524 would be entitled to reimbursement from the seller by legal subrogation to the buyer’s right against the seller, C.C. 2161(3)).
      But if the professional seller who sells as agent can escape liability to the buyer to reimburse the price because of art. 3013’s general rule that the agent is not personally liable, the result would be that an owner who was forced to repay the price to the buyer under art. 524 would not get reimbursement by subrogation to the buyer’s right against the professional seller. The inconsistency would be that the courts would tell the owner (a) you must repay the buyer from “merchant, agent for X” under art. 524 because the buyer bought not from X but from the merchant, but (b) you cannot recover from the merchant because the buyer did not buy from the merchant but from X.
      The intriguing question stated deserves a firmer factual foundation before being decided than that present here, where Southeast is not shown to be a good faith purchaser.


source: Caselaw Access Project

author: GAUDIN, Judge.

license: Public Domain

text:
    Rene FERNANDEZ and Emile Fernandez v. CLEARVIEW DODGE SALES, INC. and Gama Corporation.
    No. 82-CA-129.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.
    Edwin A. Stoutz, Jr., Wayne M. Richardson-Harp, New Orleans, for defendants-appellants.
    Charles L. Chassaignac, New Orleans, for plaintiffs-appellees.
    Before KLIEBERT, GAUDIN and GRISBAUM, JJ.
   GAUDIN, Judge.

This is an appeal from a judgment maintaining an exception of no cause of action filed by a third party defendant. For reasons following, we affirm the trial judge’s decree.

Renee and Emile Fernandez instituted this proceeding with a 23-page petition in the 24th Judicial District Court, naming Clearview Dodge Sales, Inc., and Gama Corporation as defendants. The pleading, entitled “Action in Redhibition and Violation of Unfair Trade Practices and Consumer Protection Laws,” states that petitioners had purchased a defective 1975 Mercury Monarch automobile from Clearview Dodge Sales for $2,117.00 and that plaintiffs had paid an additional $289.50 for an extended one-year warranty policy issued by Gama.

The Mercury had been driven approximately 56,000 miles prior to this sale and had obvious defects which Clearview Dodge Sales agreed to repair before delivery. The air conditioning unit had to be repaired, as did the front universal joint. The engine had an oil leak and the trunk leaked.

The petition reads:

“The petitioner, Renee Fernandez, purchased a 1975 Mercury Monarch, vehicle identification number 5E34F509231, from Clearview Dodge on August 13, 1980, for cash in the amount of Two Thousand One Hundred Seventeen and 00/00 ($2,117.00) together with a one year warranty from Gama Corporation for Two hundred eighty nine and 50/00 ($289.50) with checks made payable to Clearview Dodge. “Purchase order contained a list of items which defendant, Clearview Dodge agreed to repair or replace, before delivery expressly: Air conditioning, front universal joint, oil leak and trunk leak. “Purchasers accepted delivery on August 15, 1980 and noticed that the automobile was still leaking oil and the air conditioner was not blowing cold air. On Monday August 18, 1980, petitioner called the salesman, Ray Terhune, to notify him and defendant Clearview Dodge that the oil leak was still there and the air conditioning was still not working properly. Petitioners were sent to Sports & Imports to “refill freon and fix leak in motor and air conditioner.
“Petitioners picked up auto from Sports and Imports on Friday, August 22, 1980 and noticed there was a miss in the motor and that it needed a tune-up, that oil was still leaking, and that the oil needed to be changed. Petitioners had the engine tuned up and oil added at American Tire, Inc., for a cost of $48.56.
“Petitioners returned to Clearview Dodge and were sent again to Sports & Imports who fixed the automobile so that it no longer leaked oil on the ground.
“On September 3, petitioners had a car stereo installed for $153.60 which they are able to use and enjoy due to the condition of the automobile.
“On September 6, 1980 en route to Clear-view Dodge, the car’s engine would not start and new battery cables were installed with parts alone costing $28.38. Petitioners were told by Clearview Dodge to return Monday September 8, 1980.
“On Tuesday, September 9,1980, petitioners were sent by Clearview Dodge to Sports & Imports where they were told to bring it back Monday, September 15, 1980. Sports and Imports could not find the trouble and also failed to fix the leak in the trunk, which leak is still present to date. Petitioners were told to return Monday, September 29, but the car broke down on September 28 and had to be towed to L & L Auto Repairs where the Solanoid was replaced and the engine was checked over for a cost of $58.66.
“On September 30, 1980 petitioners took automobile to Marshall Brothers Lincoln-Mercury and received estimates of $1,613.00 plus tax for installation of a rebuilt block with heads or $1,665.00 plus tax for installation of a completely rebuilt engine.
“Petitioners took the estimate to Clear-view Dodge and were told by salesman Ray Terhune that it would be covered by the extended warranty. Petitioners were told to bring car in on October 8, 1980. “On October 7, 1980, petitioners were informed that their Gama warranty was cancelled or refused and that a check would be refunded to them. A copy of that notice and check are attached to the pleadings and made a part hereof. At that time, petitioners offered to tender the automobile and rescind the sale, which offer was refused.
“Petitioner has additionally purchased oil burning spark plugs from United Auto for $14.18 in an attempt to reduce the consumption of oil (approximately 2 quarts per week) and to stop the leak of oil into the spark plugs. Petitioners took automobile to Charles Anderson, a certified mechanic, who was unable to install the oil burning plugs but did fix the gas leak in the carburetor at a cost of $57.80. “Petitioners, in order to maintain the vehicle, also replaced a tire in the amount of $44.42.
“Petitioner alleges that the automobile is still burning oil at an excessive rate, the valve seals and rings are worn and engine needs replacement and the trunk still leaks and the vehicle is generally unfit for the purpose for which it was intended. “Petitioner, Rene Fernandez, has missed over two weeks of work in attempting to have repairs made on the automobile, costing her approximately $500.00 in lost wages and/or leave.
“Both petitioners have suffered mental stress and anxiety in attempting to persuade the defendants to honor their agreements in repairing the subject vehicle. In addition, petitioner, Emile Fernandez, suffers from a nervous condition, which has required surgery on two occasions, and which condition has been greatly aggravated by the anxiety resulting from the failure of defendants to honor said agreements.
“Because the defects in the automobile manifested themselves within three (3) days of the purchase, petitioners are entitled to a rescission of the sale in redhibition as per La.Civil Code Art. 2545 and a return of the purchase price and all costs incurred in maintenance of the vehicle. “For having dealt with petitioners unfairly, deceptively and in bad faith by refusing to honor the 30 day warranty which was included in the purchase price and refusing or cancelling the extended warranty almost two months after accepting payment for same, Clearview Dodge and Gama Corporation violated R.S. 51:1405 and are liable unto petitioners for treble the “actual damages” as per L.R.S. 51:1409 as well as attorney fees as per La. Civil Code Art. 2545 and L.R.S. 51:1409.”

Petitioners asked for recission of the sale or, in the alternative, that the defendants be ordered to honor the warranty contract and repair the automobile.

Clearview Dodge Sales made a third party demand on Ford Motor Company, the car’s manufacturer, under LSA-C.C. art. 2531, which, in pertinent part, reads:

“In any case in which the seller is held liable because of redhibitory defects in the thing sold, the seller shall have a corresponding and similar right of action against the manufacturer of the thing for any losses sustained by the seller ...”

Ford filed an exception of no cause of action, which was upheld by the district judge. On appeal, Clearview Dodge Sales contends that the words “shall have” in Art. 2531 give it the absolute procedural right to join Ford as a third party defendant.

Liberal rules of pleading prevail in Louisiana, and if the allegations set forth a cause of action in any pertinent respect, an exception of no cause of action must be overruled. A challenged pleading should be accorded every reasonable interpretation in favor of maintaining its legal sufficiency, thus giving the litigant an opportunity to present evidence.

However, nowhere does the instant petition state that any of the things complained of were due to faulty manufacture or design and nowhere is it suggested that Ford could be responsible as the maker of the used automobile and/or its component parts. Instead, the petition recites a cause of action against Clearview Dodge Sales and Gama for not repairing known and apparent defects, for not living up to the terms and conditions of the warranty contract and for dealing with petitioners “... unfairly, deceptively and in bad faith...” The trial judge did not believe that Ford, as the manufacturer of a six-year-old (at time of purchase), 56,000-mile automobile, should be kept in this litigation, nor do we.

True, paragraph XX mentions “redhibition” and the petition is entitled “Action in Redhibition and Violation of Unfair Trade Practices and Consumer Protection Law,” but the factual allegations of the pleading are not concerned with hidden vices or latent defects and, consequently, do not support the procedural applicability of Art. 2581.

Finally, we note that because appellants were tardy in making or attempting to make repairs, they cannot seek indemnity from Ford. See Lehn v. Clearview Dodge Sales, Inc., 400 So.2d 317 (La.App. 4th Cir.1981).

CONCLUSION

In order for Art. 2531 to be applicable as a procedural device, the original petition must make assertions that could hold the seller responsible for redhibitory defects. Otherwise, as is the case here, the manufacturer cannot be compelled to defend against a third party demand.

We affirm the maintaining of Ford Motor Company’s exception of no cause of action.

AFFIRMED.


text:
    KENNER INDUSTRIES, INC. v. SEWELL PLASTICS, INC. and Joe N. Guy Company, Inc.
    No. 82-CA-255.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.
    Writ Granted Nov. 18,1983.
    Steven F. Griffith, Destrehan, for plaintiff-appellant.
    Daniel E. Becnel, Jr., Reserve, for defendants-appellees.
    Before BOUTALL, GAUDIN and GRISBAUM, JJ.
   GAUDIN, Judge.

Appellant in this contract dispute is Ken-ner Industries, Inc., which contends that the trial court erred in its interpretation of this clause in a sand-hauling agreement:

“Unit Price $4.20 compacted in place.”

According to the contract between Ken-ner Industries and appellees, Sewell Plastics, Inc., and Joe N. Guy Company, Inc., Kenner Industries was to deliver approximately $63,000.00 worth of sand to a job site in Reserve, Louisiana, then spread the sand and compact it. There is no dispute over the fact that Kenner Industries was to be paid $4.20 per cubic yard.

The controversy is over the time and place the sand was to be measured. Kenner Industries’ position is that the sand, according to the contract, was to be measured while still in the dump trucks and before actual delivery. Appellees, on the other hand, argue that the sand, according to the contract, was to be delivered, spread and compacted in place and then measured.

The trial judge agreed with appellees, saying in assigned reasons:

“... The contention of plaintiff (Kenner Industries) that it is entitled to be paid $4.20 for each cubic yard of sand hauled and dumped onto the job site must be denied. While it is the industry custom in this area to charge by the truck load, usually 12 yards to the load, this contract called for $4.20 per cubic yard compacted in place. Absent any showing of fraud or misrepresentation, this court must conclude that plaintiff was to be paid $4.20 per cubic yard for each compacted yard in place.”

The district judge then calculated that Kenner Industries was owed $16,707.68, having been paid $67,549.00 of the $84,-256.68 due. Kenner Industries feels that $99,678.96 is actually due and owing.

Appellant cites Jenkins v. City of Denham Springs, 216 So.2d 549 (La.App. 1st Cir.1968), which involved a dispute similar to the one now before us. However, the contract in Jenkins was not specific, and the court noted that:

“... neither the contract nor specifications recite whether the estimated cubic yardage contemplated is to be measured in terms of loose fill excavated or compacted yardage in the levee proper. ..”

In the instant case, the trial judge obviously concluded that the contract was not ambiguous, although the record does indicate that appellant thought it would be paid for cubic yards measured in the delivery trucks. Considering the contract itself and the testimony of the various witnesses, we cannot say that the trial judge came to an erroneous conclusion.

Legal agreements have the effect of law upon the parties, and they are bound by their agreement regardless of any seemingly harsh consequences, provided the agreement is not contra bonos mores or in violation of some prohibitory law. Further, courts are bound to give legal effect to all contracts according to the true intent of the parties. Intent is to be determined by the words of the contract, when same are clear, explicit and lead to no absurd consequences. See Smith v. Moncrief, 421 So.2d 1127 (La.App. 3rd Cir.1982); Maloney v. Oak Builders, Inc., 256 La. 85, 235 So.2d 386 (1970); and LSA-C.C. arts. 1901 and 1945.

We therefore affirm the judgment of the 29th Judicial District Court in favor of Ken-ner Industries, Inc., in the amount of $16,-707.68, with appellant to bear all costs.

AFFIRMED.


author: BOUTALL, Judge.

text:
    Vincent FRANZONE v. MERCHANTS TRUST AND SAVINGS BANK, et al.
    No. 83-CA-272.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.

      John R. Martzell, Martzell, Lamothe & Gay, New Orleans, for Vincent Franzone, plaintiff-appellant.
    J. Robert Hoepffner, Mamoulides & Ho-epffner, Metairie, for Merchants Trust and Sav. Bank, defendant-appellee.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   BOUTALL, Judge.

This case arises from a dispute over a lease. From judgment dismissing the plaintiff’s rule to evict and ordering the parties to submit to arbitration as provided in the lease, the plaintiff has appealed.

The issues before this court are: whether dismissal of the eviction proceeding was correct; and, as to arbitration, whether an arbitrable controversy existed and whether the defendant’s right to arbitrate was waived.

On June 1, 1977, Vincent Franzone (“Franzone”) and three co-owners leased for forty years a parcel of real estate in Kenner to Merchants Trust and Savings Bank (“the Bank”). Franzone was at that time president and shareholder of the Bank; the co-owners were also shareholders. Franzone and his co-owners sold the Bank, subject to the lease in question, to James Queyrouze (“Queyrouze”) and others on August 31,1978. Queyrouze became president of Merchants Trust and Savings Bank while Franzone became president of the First Progressive Bank. When these proceedings began, Franzone had become sole owner of the real estate.

The fourth section of the lease sets out provisions for rent. Paragraphs 4.1 through 4.5 provide for an “Annual Minimum Rental” of $35,000, to be in effect for the first five years from the date of signing the lease. The annual rent is to be increased at the beginning of each subsequent five year period if the Wholesale Price Index has risen during the preceding five year term. The method for calculating the increase is specifically set out. Paragraph 4.5 concludes with an arbitration provision as follows:

“... In the event of a dispute, such dispute shall be submitted to arbitration under the rules of the American Arbitration Association and such finding shall be binding on the parties.”

The section regarding rent provides for additional monthly rent tied to an increase in the prime rate and for arbitration of disputes, as follows:

“4.8 If, during any month of the first ten years of the term hereof, commencing with the inception of this lease, the prime rate charged from time to time by The Bank of New Orleans & Trust Company, New Orleans, Louisiana, exceeds ten per cent (10%) per annum, then during such month or part thereof that such prime rate exceeds 10% as aforesaid, Lessee shall pay Lessor rent in addition to the Annual Minimum Rental (Additional Rent) at the rate of $21.46 per month for each one-eighth percent that said prime rate exceeds ten percent. Such Additional Rent shall be payable in addition to and over and above all other payments to be made by Lessee to Lessor hereunder. Additional Rent shall be payable with the Annual Minimum Rental on the first day of each calendar month during the first ten years of the term hereof, based on the prime rate in effect as of the last day of the previous month. If it is subsequently found that the amount of Additional Rent paid was incorrect, an adjustment thereof shall be made in the next monthly rent installment.
“4.9 In the event of any dispute between the parties as to the amount of the Annual Minimum Rental payable hereunder, or as to any other matter arising under this Section 4, such dispute shall be determined by arbitration as provided in Section 4.5 above. During any such arbitration, if the amount of rent is in dispute, Lessee shall continue to pay rent at the rate theretofore applicable; provided, however, that if under such arbitration it is determined that Lessor is entitled to additional rent, Lessee shall pay Lessor, within five (5) days from the date of such determination, the additional rent owed for the months which have elapsed during which Lessee paid rent at the rate theretofore applicable, together with interest thereon at the prime rate referred to in Section 4.8 but not less than 8% per an-num.”

Section 17 of the lease contains default provisions. Paragraph 17.1(a) provides that failure to pay the rent or any part of it after ten days’ notice constitutes a default; and paragraph 17.3(a) allows the lessor to cancel or terminate the lease upon default. However:

“17.4 The failure of Lessor to enforce any term, condition or agreement hereof by reason of its breach by Lessee shall not be deemed to avoid or affect the right of Lessor to subsequently enforce such term, condition or agreement whether by reason of the same or a subsequent breach.”

The prime rate rose above 10% on October 31, 1978. According to Paragraph 4.8 of the lease additional rent was due as of November 1. On January 16, 1981, Fran-zone for the first time made written demand for the additional rent. On February 17 he declared the Bank to be in default and demanded possession in 30 days. To both communications the Bank replied with requests for a specific dollar figure for the amount due, which Franzone ignored. The Bank’s answer based its defense on lack of demand and failure to refer the dispute to arbitration; it further petitioned the court for a declaratory judgment interpreting paragraphs 4.5, 4.8, and 4.9 of the lease. The Bank prayed that the court declare Paragraph 4.8 null and void, because it was understood by the parties that the provision would be in effect only during the period prior to Franzone’s obtaining permanent financing for the property. The Bank further alleged that:

“... lessors were 'insiders,’ and wearing two hats, and accomplished their needs with Clause 4.8 of the lease while they were owners, officers and directors of the bank but now should be estopped from the enforcement of the self-serving 4.8 Clause against the new owners and stockholders of the Merchants Trust and Savings Bank.”

Trial was held on March 31, 1981 after which the judge dismissed the eviction proceedings and ordered arbitration. This appeal followed.

Leases in Louisiana are governed by the general law of contracts and by special rules applicable to lease. LSA-C.C. Title IV, Of Conventional Obligations, and Title IX, Of Lease. The issues raised in this appeal may be resolved solely on the basis of article 1901, which states:

“Agreements legally entered into have the effect of laws on those who have formed them.
“They can not be revoked, unless by mutual consent of the parties, or for causes acknowledged by law.
“They must be performed with good faith.”

The record reveals that the lease in question was acknowledged by both the sellers and the purchasers of the Merchants Trust and Savings Bank in the sale of the capital stock of the bank. Both parties were represented by counsel and had an opportunity to examine and revise the lease if need be. The transaction was admittedly at arms’ length between knowledgeable and experienced businessmen. The lease clearly required arbitration of any dispute over rent. The jurisprudence favors maintaining rather than dissolving leases, and ambiguities are resolved in favor of the lease. Tullier v. Tanson Enterprises, Inc, 367 So.2d 773 (La.1979), Wilson v. Cost + Plus of Vivian, Inc., 375 So.2d 683 (La.App.2d Cir. 1979).

Neither party followed the rules for paying rent upon which they agreed in writing. The Bank was certainly aware that the prime rate charged by the Bank of New Orleans and Trust Company rose to more than 10% on October 31, 1978, and that additional rent was due but chose to disregard clause 4.8. Franzone chose to circumvent the arbitration provision and proceed under the default provisions. Although the rent and default provisions are in conflict to some extent, we interpret the lease to mean that, where the dispute is over rent, the lessor may not pursue any remedy provided by the default provisions until the amount due has been determined by arbitration and, as specified in clause 4.9, has remained unpaid for five days.

Louisiana Revised Statute 9:4201 provides, in pertinent part:

“A provision in any written contract to settle by arbitration a controversy thereafter arising out of the contract... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.”

Franzone argues that arbitration was not required because there was no controversy or dispute as to the rental due and because the Bank had waived the arbitration provision by filing a motion for declaratory judgment.

Franzone’s denial of the existence of a controversy is clearly a denial of the very provision under which he declared put the lessee to be in default. The wording of 4.8 indicates that the parties anticipated differences between them as to the precise amount due, as it provides for an adjustment of any incorrect payment in the following month’s rent.

We find that the defendant did not waive arbitration. The Supreme Court recently held in: Matthews-McCracken Rutland Corp., Etc., 414 So.2d 756 (La.1982), at 757:

“Neither the mere answering of a judicial demand nor the mere delay in filing the demand for arbitration necessarily constitutes a waiver of the right to demand arbitration, especially in the absence of prejudice to the opposing party. M. Domke, The Law and Practice of Commercial Arbitration Section 19.01 (1968); see also Annot., 24 A.L.R.3d 1171 (1969), for a discussion of delay in asserting contractual right to arbitration as precluding enforcement of the right. Because of the strong policy favoring the right to demand arbitration, a party’s otherwise explainable conduct should be construed against waiver of the right.”

The court noted that waiver was found only in “extreme” cases and cited two, Sim v. Beauregard Electric Cooperative, Inc., 322 So.2d 410 (La.App. 3rd Cir.1975) and I.D.C., Inc. v. McCain-Winkler Partnership, 396 So.2d 590 (La.App. 3rd Cir.1981). Those cases are distinguishable from the one at hand, in that the parties had first sued for breach of contract and amended much later to demand arbitration.

We hold that the procedure for settling disputes as to rent by arbitration was agreed to by the parties, in a written contract of lease and is binding upon them.

Accordingly, the judgment appealed from is affirmed.

AFFIRMED.

      . The same parties conducted prior litigation concerning the lease of another parcel of real estate. Merchants Trust and Savings Bank v. Franzone, 388 So.2d 851 (La.App. 4th Cir.1980) writs denied, 395 So.2d 333 (La.1980); Merchants Trust and Sav. Bank v. Franzone, 425 So.2d 844 (La.App. 5th Cir.1983) writs denied, 433 So.2d 160, 1983, reconsideration denied, 435 So.2d 435, 1983; Franzone v. Merchants Trust and Savings Bank, 427 So.2d 600 (La.App. 5th Cir.1983).


text:
    FRANK L. BEIER RADIO, INC. v. BLACK GOLD MARINE, INC.
    No. 83-CA-335.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.
    Writ Granted Nov. 18,1983.

      Mitchell J. Hoffman, Ann Wise, McClos-key, Dennery, Page & Hennesy, New Orleans, for Black Gold Marine, Inc., defendant-appellant.
    P. Keith Daigle, Schudmak & Cusimano, Metairie, for Frank L. Beier Radio, Inc., plaintiff-appellee.
    Before BOUTALL, KLIEBERT and GRISBAUM, JJ.
   BOUTALL, Judge.

Black Gold Marine, Inc. appeals from a judgment against it on open account in the amount of $21,361.11, including $2,970.00 in contractual interest, and 30% attorney’s fees, in favor of plaintiff-appellee Frank Beier Radio, Inc. For the reasons which follow we affirm in part, reverse in part, and amend in part.

Appellant Black Gold Marine, Inc. (hereinafter Black Gold) is a corporation owning a number of marine vessels connected with service of the off-shore oil industry. Between 1977 and 1980 the company did a substantial amount of business with appel-lee Frank Beier Radio (hereinafter Beier), a marine electronics sales and repair firm.

The Beier officer testifying at trial stated that throughout the course of their business dealings together Black Gold had often been slow in payment. Between 1978 and 1980 Black Gold ran up a total of $18,391.00 in unpaid invoices. Early in 1981, after several meetings between officers of the two firms in an attempt by Beier to speed up payment, the two companies broke off relations altogether and this suit followed.

Beier sued Black Gold on open account for $18,391.00, together with interest at 1½ percent a month totalling $2,970.00, and 30% attorney’s fees. The trial judge held for Beier, awarding the invoice sum, interest, and attorney’s fees. He disallowed Black Gold’s counterclaim for damages due to faulty repairs and downtime, as well as a claimed set off for Black Gold equipment in Beier’s possession (due to unpaid repair bills). The trial judge did allow defendant Black Gold to try to prove faulty workmanship as a defense to the debt, but held that defendant had not met its burden of proof in this regard.

ISSUES ON APPEAL

Appellant has specified thirteen errors for our review. For the sake of brevity, and because we find the majority of alleged errors to be without merit, we would group the issues into three categories:

Issues 1-7 as stated in appellant’s brief revolve around the trial judge’s rulings to disallow appellant’s “late-blooming” counterclaim, set-off for equipment in ap-pellee’s possession, and his ruling that Black Gold did not carry its burden of proof on the defense of faulty repair.
Issues 8-12 deal with whether the contractual relationship between the parties was one of open account and whether Beier is entitled to contractual interest as well as attorney’s fees under La.R.S. 9:2781.
Issue 13 deals with the alleged exces-siveness of the 30% attorney’s fees.

With respect to Issues 1-7 as enumerated above, we find appellant’s specifications of error to be without merit. The law is well settled that the trial court has a great deal of discretion to allow or disallow amendments to pleadings and we are satisfied that in this case there was no abuse of discretion. See Louisiana Code of Civil Procedure articles 1151, 1155; White v. Cumis Insurance Society, 415 So.2d 574 (La. App. 3rd Cir.1982).

As to the trial court’s ruling that appellant did not carry its burden of proof on the defense of faulty repair, we find no manifest error.

With respect to Issues 8-12, we find that some aspects of the contractual relationship between the parties and the parameters of the agreement between them require closer inspection.

From our review of the record, we conclude, as did the trial court, that Beier and Black Gold indeed had an open account relationship. For an explanation of the characteristics of an open account, see Monlezun v. Fontenot, 379 So.2d 43 (La.App. 3rd Cir.1979).

We are compelled to disagree, however, with the trial court’s conclusion that because Black Gold was bound to the principal debt by the signature of its agents on the individual work orders, it was also bound to the 1 ½ per month interest provision and 30% attorney’s fees.

The interest and attorney’s fees provisions were strongly contested by appellant at trial and on appeal. They arise out of the following language printed at the bottom of each of Beier’s work orders containing an enumeration of the work done on each service call:

Terms: Net cash upon receipt of invoice 1½% per month interest after 30 days plus 30% attorney’s fees if placed into the hands of an attorney for collection.

Testimony at trial from both sides established that the parties had never entered into a written contract covering the terms of their business relationship. Additionally, neither the officer from Black Gold nor the officer from Beier could recall ever discussing the interest and attorney’s fees provisions. Their testimony established that the normal course of business was for Beier service people to seek out the highest ranking officer on board a Black Gold vessel to sign the work order for goods or services received.

We interpret the jurisprudence to require that contractual provisions for conventional interest and attorney’s fees must be specifically agreed to between the parties. S.E. Hornsby, Etc. v. Checkmate Ready Mix, 390 So.2d 213 (La.App. 3rd Cir. 1980). That agreement may be actual (i.e. oral or written) or implied by means of codal presumptions, La.Civil Code arts. 1816, 1817, or by means of a factual determination by the trial court. La.Civ. Code art. 1818. See Pooler Building Materials, Inc. v. Hogan, 244 So.2d 62 (La.App. 1st Cir.1971).

As we have stated, there was no actual agreement for conventional interest, either oral or written. There remains an issue of implied intent under the codal presumptions of Civil Code arts. 1816 and 1817. They provide in part the following:

Article 1816. Actions implying intent to contract
Actions without words, either written or spoken, are presumptive evidence of a contract, when they are done under circumstances that naturally imply a consent to such contract....
Article 1817. Silence and inaction as implying consent
Silence and inaction are also, under some circumstances, the means of showing an assent that creates an obligation; if, after the termination of a lease, the lessee continue in possession, and the lessor be inactive and silent, a complete mutual obligation for continuing the lease, is created by the act of occupancy of the tenant on the one side, and the inaction and silence of the lessor on the other.

It is contended that Black Gold’s silence in not making objection to the provisions on the invoices over the period of the transactions implies consent to the obligations of those provisions. We disagree. The Vice-President of Beier testified that until the matter came to suit, the interest provision was never enforced against Black Gold, and further it was only selectively enforced against other customers. We are loathe to imply consent through Black Gold’s actions or silence, as provided for in the above cited codal articles, when Beier never enforced the interest provision during the three years that the companies did business together. Had Beier demanded interest during that time, and had Black Gold paid it on one or more occasions or perhaps failed to object to it, our result might well be different. However in this case, the failure of the purchaser to object is equally balanced by the failure of the seller to demand the interest.

We hold also, for the same reasons, that the facts in this case do not support a finding of implied consent under La.Civil Code art. 1818.

Accordingly, we conclude that plaintiff is not entitled to the interest stated in its invoices and reverse that portion of the judgment appealed from. We think that the result we reach is a sound one under the law and in terms of commercial dealings. Commercial entities doing business with one another presumably have a level of business sophistication that should enable them to agree to the express terms of their business relationship at the outset. By analogy, the terms governing a consumer credit transaction are as a rule agreed to prior to the transaction, by means of an application for credit or a signed contract, or by specific provisions of the law. It cannot be onerous to require a commercial dealer, who wishes to change the contractual agreement, to notify the customer of the proposed change timely.

The proper interest to be assessed in this case is legal interest from time when due. La.Civil Code art. 1938. Proper demand was made on June 9, 1981 and interest became then due. See Succession of Drake, 359 So.2d 249 (La.App.2d Cir.1978).

Finally, with respect to attorney’s fees, it logically follows that since appellant is not bound by the interest provision, neither is it bound by the 30% attorney’s fees provision contained on the work orders. Appellant is, however, liable for reasonable attorney’s fees on an alternate basis; namely, La.R.S. 9:2781. That statute provides for an award of attorney’s fees in pertinent part as follows:

When any person fails to pay an open account within thirty days after receipt of written demand therefor correctly setting forth the amount owed and a copy of the invoices in support thereof, that person shall be liable for reasoanble attorney fees for the prosecution and collection of such claim when judgment on the claim is rendered in favor of the claimant.

The trial court found that appellee Beier had complied with the above requirements and awarded attorney’s fees in the amount of 30%. We affirm that award with the following clarifications.

Appellant has argued, at trial and on appeal, that appellee failed to comply with the requirements of La.R.S. 9:2781 and is therefore not entitled to an award of attorney’s fees. Appellant contends that Beier did not make written demand for the correct amount because the demand letter contains a demand for interest for which Black Gold was not liable.

Though we have held above that Black Gold is not liable for the conventional interest at 18% per annum, we find that its argument with respect to attorney’s fees lacks merit. The demand letter, accompanied by a sheaf of supporting invoices, states the principal due is $18,391.00. The trial judge found that this was in fact the principal due, and that award remains intact on appeal. Appellee Beier has complied with the terms of La.R.S. 9:2781. The fact that a separate item of interest in the amount of $2,970.00 is enumerated in the demand letter does not change the result. Appellee reasonably believed under the circumstances that such amount of interest was owed to it; moreover, it is abundantly clear from the written demand and invoices exactly what principal was due and had been due for many months.

We are well aware that Louisiana jurisprudence requires that La.R.S. 9:2781 be strictly construed. Scarborough v. Nelson, 371 So.2d 1261 (La.App. 3rd Cir.1979). However, our review of the existing case-law has not disclosed a case in which attorney’s fees were denied with circumstances similar to the instant one; i.e. where a creditor has sent written demand correctly setting forth the principal amount due, as well as a correct amount of interest pursuant to the terms stated on its invoices, which interest is subsequently on appeal determined to be uncontracted for. In Scarborough, the creditor was held not entitled to attorney’s fees because the record reflected that the written amount demanded was clearly incorrect by $1187.68. The creditor had refused to credit the debtor’s account with premium refunds due to him from cancelled insurance policies, arguing that the refunds were not yet owing on the date of the demand letter. The record disclosed that all the insurance policies in question had been cancelled by the date of the demand letter, and that the debtor had obviously been entitled to the credits by that date.

In Roberts v. Paciera, 411 So.2d 650 (La.App. 4th Cir.1982), also cited by appellant, attorney’s fees were disallowed because no evidence was presented in the trial court as to compliance with La.R.S. 9:2781. Such is not the situation in the case now under consideration. Finally, in Capital Recovery Assistance, Inc. v. Nelson, 424 So.2d 357 (La.App. 2nd Cir.1982), attorney’s fees were disallowed because the creditor did not send invoices in support of the written demand.

In this case the creditor has correctly set forth the amount owed and the specific invoices showing the debt. He is entitled to reasonable attorney’s fees. The trial judge set the fee at 30% of the amount claimed, having found:

“... that plaintiff has complied with the requirements of La. (sic) 9:2781 entitling it to reasonable attorney’s fees for its collection, we set the amount of attorney’s fees to be awarded at thirty percent of the amount claimed. We find such a fee to be ‘reasonable’ in light of the fact that this case was in litigation for approximately one year; the fact that the Court views the majority of Black Gold’s defenses to the payment of that account as tenuous and dilatory; and the fact that the work orders signed by Black Gold’s representative, referred to above, provided for attorney’s fees in the amount of 30% for all unpaid amounts.”

We quote this language to show that the trial judge did not simply set 30% attorney’s fees because it was specified in the invoices. The fee was based on L.R.S. 9:2781. The specifying of 30% on the invoices was only one facet of the determination of amount.

We have reviewed the record in consideration of the particular ability of a trial judge to evaluate the work done, the results reached, skill of the attorney, etc., and find no error in his assessment of 30% of the amount Beier may recover under the judgment, as a reasonable attorney fee.

Accordingly we reverse and annul that portion of the judgment awarding plaintiff interest at the rate of 18% per annum and amend by reducing the amount awarded, rendering judgment in favor of Frank L. Beier Radio, Inc. against Black Gold Marine, Inc., in the amount of $18,391.00 plus attorney’s fees of 30% of said amount, plus legal interest from June 9, 1981, until paid, and for all costs of these proceedings in both courts.

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

      . See Pooler Building Materials, Inc. v. Hogan, supra; First Wisconsin National Bank of Milwaukee v. Novem, Inc., 349 So.2d 370 (La.App. 4th Cir. 1977); Succession of Drake, 359 So.2d 249 (La.App.2d Cir.1978).


text:
    MASTER CREDIT PLAN, INC. v. Jo W. ANGELO, et al.
    No. 5-247.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.
    Rehearing Denied Oct. 17, 1983.

    Joseph V. Dirosa, Jr., New Orleans, for Jo W. Angelo, defendant-appellant.

      A.W. Wambsgans, Metairie, for William M. Justice, Jr., defendant-appellant.
    George H. Jones, New Orleans, for Master Credit Plan, Inc., plaintiff-appellee.
    Gerald A. Wasserman, Bach & Wasser-man, New Orleans, for Sec. Homestead Assn., defendant-appellant.

       Gaudin, J. was of the opinion to grant a rehearing.

   BOUTALL, Judge.

Alleging improper cancellation of an inscription of a money judgment in the mortgage records of the Clerk of Court for the Parish of Jefferson, a judgment creditor brought mandamus proceedings against the Clerk and other interested parties to require the Clerk to reinscribe the judgment as of the date of cancellation. The court held that the cancellation was improper and ordered the judgment to be reinscribed. The Clerk and the judgment debtor appealed.

The underlying basis of this case is the period of time involved in the revival of a money judgment and the inscription and reinscription of that judgment. There is no issue of fact in this case but only the application of law to the undisputed facts. We set out the calendar of events.

Master Credit Plan, Inc., obtained a money judgment against Louis E. Angelo on December 17, 1970 and recorded the judgment on January 20,1971. Nearly 10 years later, Master Credit Plan filed a petition to revive the judgment on November 14, 1980 and that matter was still pending at the time of trial of the mandamus proceeding, November 9, 1981. On December 18, 1980 the succession representative of the judgment debtor filed an affidavit for cancellation of the inscription of the judgment and the Clerk of Court and ex-Officio Recorder of Mortgages cancelled the inscription of the judgment. The next day on December 19, the succession representative, Jo W. Angelo, sold a piece of real estate belonging to the succession of the judgment debtor to defendants, Mr. and Mrs. Richard Meyer. Thereafter, on March 18,1981 the judgment creditor filed this mandamus suit seeking to have the cancelled inscription reinscribed effective as of the date of cancellation, December 18, 1980.

From a perusal of the above calendar of events it is apparent that there are two basic questions, one dealing with the 10 year limitation of time for revival of money judgments and one dealing with the limitation of time for the reinscription of a money judgment in the mortgage records. It should be noted at the outset that there is a difference between the rights and conditions that flow from the acquisition of a money judgment as compared to the rights and conditions that flow from the inscription of that judgment. Although in general each requires action to keep it effective within 10 years there is a difference in the exact timing applicable to each, and it is decisive to this case that action was taken only in the matter of revival of judgment, not in the reinscription of the judicial mortgage. Accordingly, we shall discuss each separately.

REVIVAL OF JUDGMENT

Master Credit Plan obtained a money judgment on December 17, 1970 and filed a petition to revive that judgment on November 14, 1980. When a money judgment is not voluntarily paid by the judgment debtor, it is ordinarily collectible by a resort to the provisions of Code of Civil Procedure Book IV-Execution of Judgments, and especially Title 2, beginning at C.C.P. art. 2291 permitting execution of a judgment for the payment of money by a writ of fieri facias directing the seizure and sale of the property of a judgment debtor. Recognizing that some time limitation must be imposed on the possibility of such an occurrence, our legislature has provided in Louisiana Civil Code article 3547 the following limitation:

“Prescription and revival of money judgments.
“A money judgment rendered by a court of this state is prescribed by the lapse of ten years from its signing, if rendered by a trial court, or from its rendition if rendered by an appellate court.
“Any party having an interest in a money judgment may have it revived before it prescribes, as provided in Article 2031 of the Code of Civil Procedure.... ”

Correspondingly Code of Civil Procedure article 2031 describes the procedure for revival of judgments as follows:

“Revival of judgments,
“A money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered.
“The judgment debtor shall be made a defendant in the proceeding to revive the judgment, unless he is dead, in which event his legal representative or legal successor shall be made a defendant.
“A judgment shall be rendered in such a proceeding reviving the original judgment, unless the defendant shows good cause why it should not be revived.”

As the judgment is revived via an ordinary proceeding, it necessarily follows that the mere filing of a petition for revival before the 10 year period ends will interrupt prescription. In that same section of the Civil Code which provides for the prescription which operates a release from debt, appears article 3528, which provides that a discharge from the debt occurs by the “mere silence of the creditor during the time fixed by law from all actions, real or personal, which might be brought against him.” Additionally, L.R.S. 9:5801 specifically provides that the filing of a suit in a court of competent jurisdiction shall interrupt all prescriptions affecting the cause of action therein sued upon against all defendants.

Applying these principles of law, we have no hesitancy in holding that when Master Credit Plan filed its suit for revival on November 14, 1980, less than 10 years from the signing of the judgment, that prescription was interrupted pending the final resolution of the suit for revival. Dependent upon the resolution of that suit, the judgment creditor may still have a valid and enforceable judgment.

INSCRIPTION OF JUDGMENT

The resolution of whether or not the judgment can be successfully revived may pave the way to permit Master Credit Plan to successfully continue its suit along that line, however the mandamus judgment from which this appeal is taken is another matter. The fundamental question before us now is whether the inscription was subject to cancellation or whether it should be reinscribed as of that date. As noted above our law has provided some methods by which a judgment becomes enforceable and a money debt may be collected. In addition to the devices mentioned above, one of the benefits granted a judgment creditor is that in certain cases the judgment may also have the effect of a judicial mortgage. As defined in Civil Code article 3321 a judicial mortgage takes effect from the day the judgment is recorded, C.C. article 3322, and may be enforced against all of the immova-bles which the debtor actually owns or may subsequently acquire. C.C. article 3328. Such mortgages are allowed to prejudice third persons only when they have been publicly inscribed in the mortgage records. C.C. article 3342. The inscription only binds the property of the debtor when it has been made in the office of mortgages for the parish where the property lies. C.C. article 3346. And unless so recorded it cannot affect third parties. C.C. article 3347. The methods and procedures for recordation are set out in C.C. article 3348, providing that any entitled person must cause the evidence of the mortgage to be recorded in the mortgage book of the parish where the property is situated. It should be specially noted that according to article 3357 the recording of the instrument of mortgage “shall have the effect of preserving the mortgage or privilege, but they shall in no manner be evidence of the validity of the debt or claim, other than the law may award to acts of the kind when recorded.” And finally, C.C. article 3366 provides that an authentic copy of the judgment is the document that should be recorded to obtain the inscription.

It is conceded that the original judgment was recorded on January 20, 1971 some time after the judgment date of December 17, 1970. As pointed out above the law is specific that the effectiveness of the inscription against the property of the judgment debtor or against third parties only begins from the date of inscription. However, the duration of the period is not measured from the date of inscription but from the date of the obligation. Civil Code article 3369 specifically provides in pertinent part:

“Reinscription of mortgages and privileges; duration of effect.
“In all cases where mortgages and privileges, heretofore or hereafter recorded, secure the payment of an indebtedness, the whole of which matures less than nine (9) years from the date of the obligation, the registry preserves the evidence of such mortgages and privileges during ten (10) years, reckoning from the date of the obligation.
“The effect of the registry ceases in all cases, even against the contracting parties, if the inscriptions have not been renewed within the periods of time above provided in the manner in which they were first made. In all cases the rein-scription of the mortgages and privileges shall preserve their effect for ten (10) years from the date of the timely renewal, as above provided.”

The facts are clear that the judgment creditor did not attempt reinscription within ten (10) years of the date of the obligation. According to L.R.S. 9:5161 the Clerk was thus required to cancel the inscription not timely reinscribed. We quote: “Cancellation for failure to reinscribe.

“On the simple written application of the property owner, creditor of the owner, or other party interested, the recorder of mortgages, or person acting as such, shall cancel in full from the records of his office all inscriptions of mortgages affecting the property which have not been reinscribed within the period of time specified by Civil Code Article 3369.”

The judgment creditor nevertheless argues to us that the cancellation should be governed by the provisions of L.R.S. 9:5162 and points out that under that article cancellation may be had only when the encumbrance affecting the property shall have become unenforceable or shall have been prescribed or preempted or the effect of which shall have ceased because of lapse of time. They reason thus that the judgment was in the course of being revived and that it still had an enforceable effect and had not prescribed or been preempted. However, we point out again that there is a difference between the effect of a judgment and the effect of an inscription of a judgment as discussed above. And it is immaterial to the inscription that the original judgment may still have force and effect. The inscription must still be rein-scribed in ten (10) years from the date of the obligation. Cancellation by the Clerk of Court was proper under the provisions of L.R.S. 9:5161 requiring cancellation of all inscriptions of mortgage which have not been reinscribed within the period of time specified by C.C. Article 3369. That section is operable simply by virtue of the failure to reinscribe timely, no matter that the original encumbrance may still be viable for its enforcement in other ways. We must follow the plain words of the language in these statutory requirements, especially in view of the fact that it is only by following the provisions for inscriptions that one obtains a judicial mortgage in the first place.

Having thus concluded that the Clerk properly cancelled the inscription of the judgment, it follows that we cannot consider that cancellation void and order the reinscription of it retroactive to its cancellation. Accordingly, we reverse the judgment appealed and there is now judgment in favor of William M. Justice, Jr., Clerk of Court and ex-Officio Recorder of Mortgages for the Parish of Jefferson, .and Jo W. Angelo, Administratrix of the Estate of Louis E. Angelo, dismissing the petition for mandamus filed by Master Credit Plan, Inc., formerly Yerret Credit Plan, Inc., at its cost.

REVERSED AND RENDERED.


author: KLIEBERT, Judge.

text:
    DAUL INSURANCE AGENCY, INC. v. PARISH OF JEFFERSON, Robert B. Evans, Jr., Lloyd F. Giardina, James E. Lawson, Thomas E. Ward, Kenneth Hollis, Willie Hoff, and Aaron Broussard.
    No. 5-322.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 1983.
    Nathan Greenberg, Greenberg & Dallam, Gretna, for plaintiff-appellant.
    H.A. Vonderstein, Louis G. Gruntz, Jr., Gretna, for defendants-appellees.
    Peter J. Butler, Butler & Heebe, New Orleans, for intervenor-appellee.
    Before BOUTALL, KLIEBERT and DU-FRESNE, JJ.
   KLIEBERT, Judge.

We originally considered this case and handed down an opinion appearing at 434 So.2d 118. On writs the case was remanded to us by the Supreme Court. The remand order appears at 435 So.2d 443.

In this suit, Daul sought to compel the Parish of Jefferson to designate the Parish’s “agent of record” for the acquisition of insurance policies by public bidding and/or to purchase insurance contracts by public bids rather than through a designated “agent of record”. The trial judge dismissed Daul’s suit by sustaining an exception of no cause of action filed by the Parish Council.

On appeal to this court, we affirmed the trial court’s ruling, holding that La.R.S. 38:2212 of the Public Bid Law did not require public bidding for the contract appointing the “agent of record” since the contract to provide insurance coverage is not a “public work” nor a “purchase of materials or supplies” as contemplated by the statute. See Wallace Stevens, Inc. v. Lafourche Parish Hospital District No. 3, 323 So.2d 794 (La.1975) and Lafourche Parish Water District No. 1 v. Carl Heck Engineers, Inc., 346 So.2d 769 (La.App. 1st Cir. 1977), writ refused 349 So.2d 873 (La.1977). Further, Daul had conceded on appeal and we found that La.R.S. 39:1540, which requires bidding on insurance contracts, applied only to the State of Louisiana and its agencies and not to the Parish of Jefferson.

On the original hearing, Daul urged the case of The Council of City of New Orleans v. Morial, 390 So.2d 1361 (4th Cir.1980) in support of his contention that the Jefferson Parish Home Rule Charter required public bidding. On application for writs filed by Daul, the Supreme Court remanded the case for this court to reconsider the issues in the light of Section 4.02(G) of the Home Rule Charter of Jefferson, which reads as follows:

“G. Contracts for public improvements and purchases of supplies, materials, and services other than professional for the parish or for any of its departments, offices, agencies, or special districts shall be made on the basis of specifications and competitive bids. Formal sealed bids shall be secured for all such parish purchases when the transaction involves the expenditure of $2,000 or more. The transaction shall be evidenced by written contract submitted to and approved by the Council. The Council shall have the right to reject any and all bids. The Council may authorize any parish department through its own employees and facilities or any other governmental agency to make any public improvements or to perform other parish work without competitive bidding provided that any purchases made by the parish in connection therewith shall be by competitive bidding. Purchasing and contract procedure not prescribed by this Charter shall be established by ordinance.” (Emphasis Supplied).

On the original hearing we said the Morial case was distinguishable on the facts; but erroneously added that the Parish of Jefferson did not have in its Home Rule Charter a provision similar to that contained in the Orleans charter. The above quoted provision is similar to the provision contained in the Orleans charter, but the difference in the services covered by the contracts leads us to a different result.

In the Morial case, supra, the court found the services under the particular contract involved there were not excluded from the public bidding under the professional services exclusion of the public bidding requirement of the Orleans charter. The City’s contract there involved only services connected with the administration of the City’s self-insured health care program. The services to be performed were specifically itemized in the contract and are itemized in the opinion. As to those services the court found that “the vast bulk of the services are basically clerical” and hence not excluded from public bidding as professional services.

Here, the contract is for an “agent of record” to continue in effect an insurance program previously established by the Parish, which includes workmen’s compensation, public general liability, automobile fleet liability, automobile physical damage,boiler and machinery, bonds, burglary, plate glass, inland marine and others. The operation of the Parish is similar to a multi-mil-lion dollar business operation. The planning and maintenance of an insurance program requires the use of highly technical, creative or unique individual skills possessed by one who has a high order of intelligence, skill and learnings.

As we view the responsibilities and services involved here, it is professional services as opposed to clerical or administrative services and, therefore, excluded from the bidding requirements of Section 4.02(G).

As provided by the last sentence in the Section 4.02(G) “purchasing and contract procedure not prescribed by this Charter shall be established by ‘Ordinance’ ”. The Parish Council did exactly that by adopting Ordinance No. 4732, which provides the procedure for entering into insurance contracts and is found in Section 2-10-2 of the Jefferson Parish Code and reads as follows:

“The Parish Council shall appoint a committee of insurance agents living in the Parish of Jefferson or the Parish of Orleans, consisting of not more than five (5) members to act in an advisory capacity. The Council after study of the entire insurance problems of Jefferson Parish shall authorize the Chairman of the Jefferson Parish Council to enter into a contract with an agent and/or agencies to effectuate the insurance program approved by the Jefferson Parish Council. (Ord. No. 4732, §§ 1, 2, 9-15-60).”

For the reasons stated, therefore, we again affirm the judgment of the trial court. All costs of the appeal to be borne by the plaintiff-appellee.

AFFIRMED.

      . LSA-R.S. 38:2212 A. (1) provides as follows:
      “All public work exceeding the contract limit as defined herein, including labor, and materials, and all purchases of materials or supplies exceeding the sum of five thousand dollars to be paid out of public funds, to be done by a public entity shall be advertised and let by contract to the lowest responsible bidder who had bid according to the contract, plans, and specifications as advertised, and no such public work shall be done and no such purchase shall be made except as provided in this Part. All such bids shall be either hand delivered by the bidder or his agent in which instance the deliverer shall be handed a written receipt, or such bid shall be sent by registered or certified mail with a return receipt requested. However, the requirement that all bids be sent by registered or certified mail shall not apply to bids received by municipal and parochial governing authorities.”

      . LSA-R.S. 39:1540 provides as follows:
      “Every contract entered into by the state for the purchase of insurance or for obtaining services relating to the operation of the insurance program shall be awarded by either competitive sealed bidding or competitive negotiation. Competitive negotiation shall be initiated by the issuance of a request for proposals containing a description of the coverage required and the factors to be used in evaluating the proposals. Where there is more than one offeror, written or oral discussions shall be conducted with at least the three, or two if there are only two, highest qualified offerors who submit proposals determined in writing to be reasonably susceptible of being selected for award. The contract shall be awarded with reasonable promptness by written notice to the responsible offeror whose proposal meets the requirements and criteria set forth in the request for proposals and whose proposal is most beneficial to the state, considering the price and the evaluation factors set forth in the request for proposal. Public notice of the request for proposals shall be provided in the same manner as established in Part V of Chapter 1 of Title 391 of the Louisiana Revised Statutes.”


author: DAN M. LEE, Justice,

text:
    Lonnie Keith LEE v. STATE of Mississippi.
    No. 54445.
    Supreme Court of Mississippi.
    Sept. 21, 1983.
    Lonnie Keith Lee pro se.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
    Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.
   DAN M. LEE, Justice,

for the Court:

This appeal presents just one issue, whether a circuit judge of one county may grant credit for time served in a second county when a prisoner is arrested and charged with a crime in the first county and, prior to arraignment, is subsequently transferred to the second county to face another charge, the transfer being attended by a detainer from the first county? We conclude that § 99-19-23 Miss.Code Ann. (1972) requires this question be answered in the affirmative.

The record in this appeal is scant to say the least. It consists primarily of appellant Lonnie Keith Lee’s handwritten motion for credit for time served. In that motion Lee alleges that on May 1,1976, he and his wife, Martha, were arrested in Ocean Springs, Mississippi. The arrest was made on a warrant issued in Pearl River County. During the search of Lee’s vehicle a controlled substance was discovered. The couple was taken to the jail in Ocean Springs and a few days later transported to the Jackson County jail. They remained there only a short time before they were transferred to the Harrison County jail to face another charge. A detainer was placed in Lee’s file for the Jackson County charge. That de-tainer remained in his file for all time periods relevant to this appeal.

Lee alleges that he remained in custody in Harrison County for six months. He was then transported to Pearl River County and the detainer from Jackson County again followed him. On February 8, 1977, Lee was transported to Jackson County where he was introduced to a legal intern who advised him to plead guilty to the Jackson County charge. Lee was advised that if he entered a guilty plea the case would be passed to the files. In his brief he states that his understanding was that in exchange for a guilty plea he would not be sentenced to serve time beyond that which he was serving in Pearl River County. The judge accepted the guilty plea and set the date for sentencing at February 18, 1977. The legal intern advised Lee that if the sentences were to run concurrently there would be no need for him to return on February 18. Lee was then returned to Pearl River County where he completed his previous sentence. He was not returned to Jackson County February 18, 1977 and therefore sentence was not then imposed.

Four years later, a second sentencing date was set for February 20, 1981. Lee did not appear at that time either. On April 24, 1981, Lee was arrested in Holmes County, transferred to Jackson County five days later, and sentenced to three (3) years imprisonment based on the 1977 guilty plea. Lee then filed his motion for credit for time served. Lee’s motion requested that he be granted credit for the time between May 1, 1976, when he was arrested, and February 8, 1977, when he entered a guilty plea in Jackson County. The Circuit Court of Jackson County denied his motion for credit for time served. In pertinent part the opinion of the judge in denying the motion reads: “This court finds no authority which will allow the Circuit Court of Jackson County to give the defendant credit for time served in the Pearl River County jail while awaiting trial in that county and the motion should be denied.”

Section 99-19-23 Miss.Code Ann. (1972) reads:

The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are exhausted.

The key phrase of § 99-19-23 involved in this appeal is “... while awaiting trial on a criminal charge ...” When Jackson County transferred Lee to Harrison and Pearl River Counties, a detainer was placed in his file with each transfer. Therefore, Jackson County retained jurisdiction over Lee at least for purposes of prosecuting the Jackson County charge. At no time prior to the entry of Lee’s guilty plea in Jackson County on February 8,1977, did Jackson County relinquish its hold over him by dropping the detainer. Had the authorities of either Harrison or Pearl River County decided to release Lee the detain-er would have required that he be returned to Jackson County authorities. Lee was simply loaned to and housed in another county while he awaited trial in Jackson County. There can be no mistake that he was still awaiting trial in Jackson County. Note that the statute reads “. .. incarceration in any municipal or county jail ...” (emphasis added). § 99-19-23 Miss.Code Ann. (1972).

It is also noted that in cases where prisoners transferred to another county to be held because it is inconvenient or impossible to hold him in the first county, the first county retains jurisdiction. § 47-3-1 Miss.Code Ann. (1972). Of course, that statute is designed to deal primarily with over-crowded or non-existing county jails. But the rationale is analogous. It was apparently more convenient for Jackson County to allow Harrison and Pearl River Counties to try Lee first. Jackson County did not have to allow Lee’s transfer and when it did he was not released from its jurisdiction, as he remained on a detainer. Therefore, the Circuit Court of Jackson County was in error when it held that it had no authority to give a defendant credit for time served in Pearl River County jail while awaiting trial in that county. The use of the detainer made it clear that Lee was not only awaiting trial in Pearl River County but also awaiting trial in Jackson County.

Based on the foregoing, we hold that the order of the trial judge denying the motion for credit for time served be reversed. Because the court’s order cursorily dismissed the motion for credit for time served, without a proper record being made as to actual time served while on detainer, we cannot render but must remand for proof of that issue. Due to the fact that Lee’s present incarceration may be dependent on receiving this credit for time served, we suggest that the Circuit Court dispose of this matter at the earliest possible date.

REVERSED AND REMANDED FOR PROCEEDINGS CONSISTENT WITH THIS OPINION.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, PRATHER and ROBERTSON, JJ., concur.


text:
    Robert E. TUBWELL v. Dr. Francis T. “Ted” GRIFFITHS, Director of Classification Committee, Mississippi State Penitentiary (State).
    No. 54504.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Robert E. Tubwell, pro se.
    Bill Allain, Atty. Gen. by Leonard C. Vincent, Staff Atty., Miss. Dept, of Corrections, Parchman, for appellee.
   Appeal from Circuit Court, Sunflower County; Arthur B. Clark, Judge.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.


text:
    John W. LEFLORE, Jr. v. MADISON FURNITURE INDUSTRIES.
    No. 53923.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    A.R. Wright, Jr., Wright & Phillips, Carthage, for appellant.
    James H. Herring, Herring & Self, Canton, for appellee.
   Appeal from Circuit Court, Madison County; Alfred G. Nicols, Jr., Judge.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.


text:
    FUEL SERVICES, INC. and Vallie H. Dantzler v. MISSISSIPPI STATE HIGHWAY COMMISSION.
    No. 54468.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Robert G. Ramsay, Pascagoula, for appellant.
    P.O. Gibson, Jr., Walter E. Wood, Jackson, for appellee.
   Appeal from Chancery Court, Jackson County; Kenneth B. Robertson, Chancellor.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.


text:
    Karl Justin LEE v. STATE of Mississippi.
    No. 54547.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    John R. Reeves, Jackson, for appellant.
    Bill Allain, Atty. Gen. by Walter L. Turner, Sp. Asst. Atty. Gen., Jackson, for appel-lee.
   Appeal from Circuit Court, Hinds County; Karen Gilfoy, County Judge and Acting Circuit Judge.

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

AFFIRMED.


text:
    William Albert MULLENDORE v. Dianne Marie MULLENDORE.
    No. 54495.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Martin A. Kilpatrick, Greenville, for appellant.
    Stephen L. Thomas, Mansour & Thomas, Greenville, for appellee.
   Appeal from Chancery Court, Washington County; Willard L. Mcllwain, Chancellor.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED.

PATTERSON, C.J., WALKER, P.J., and ROY NOBLE LEE, BOWLING, HAWKINS and ROBERTSON, JJ., concur.


text:
    Willie Paul BEESON v. GLASS CONTAINERS CORP.
    No. 53895.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
   Appeal from Circuit Court, Rankin County; Alfred G. Nicols, Judge.

Betty B. Tucker, Pyles & Tucker, Jackson, for appellant.

Donald Burch, J. Wyatt Hazard, Daniel, Coker, Horton & Bell, Jackson, for appellee.

Before BROOM, P.J., and DAN M. LEE and PRATHER, JJ.

AFFIRMED ON DIRECT AND CROSS-APPEALS.


text:
    Reynold Hobson RICHAUD, Jr. v. Helita D. WILLIAMS and Patricia Williams Zatarain.
    No. 54487.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Jimmy D. McGuire, Gulfport, for appellant.
    Inmond L. Deen, Jr., Gulfport, for appel-lee.
   Appeal from Chancery Court, Harrison County; Jason H. Floyd, Chancellor.

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

AFFIRMED.


text:
    Willie Lee MAYS v. STATE of Mississippi.
    No. 54458.
    Supreme Court of Mississippi.
    Sept. 28, 1983.
    Phil R. Hinton, Wilson & Hinton, Corinth, for appellant.
    Bill Allain, Atty. Gen. by Marvin L. White, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
   Appeal from Circuit Court, Alcorn County; Thomas J. Gardner, III, Judge.

Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.

AFFIRMED.

WALKER and BROOM, P.JJ., and ROY NOBLE LEE, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.


author: ROBERTSON, Justice,

text:
    Larry Van WEST, Appellant v. STATE of Mississippi, Appellee.
    No. 53918.
    Supreme Court of Mississippi.
    Sept. 28, 1983.

      Thomas Tucker Buchanan, Billie J. Graham, Buchanan & Graham, Laurel, for appellant.
    Bill Allain, Atty. Gen. by Amy D. Whit-ten, Sp. Asst. Atty. Gen., Jackson, for ap-pellee.
    Before PATTERSON, C.J., and BOWLING and ROBERTSON, JJ.
   ROBERTSON, Justice,

for the Court:

Larry Van West was convicted in the Circuit Court of Forrest County, Mississippi, of the crime of attempted sexual battery. Miss.Code Ann. §§ 97-3-95 and 97-3-97 (Supp.1982) and § 97-1-7 (1972). He was sentenced to serve a term of 20 years in the custody of the Mississippi Department of Corrections.

The evidence establishes without serious contradiction that on March 2, 1981, West inveigled his victim, a female student at the University of Southern Mississippi, into an apartment near where she lived, made a few suggestive comments, and without her consent, fondled her breasts, put his hand inside her panties, and later exposed himself. The question is not whether what West did was criminal or whether it offends sensibilities. We inquire whether what West did constitutes the specific crime of attempted sexual battery as defined in a combined reading of three statutes, Section 97-3-95, -97 and 97-1-7. We answer in the negative.

We begin with Section 97-3-95 which makes sexual battery a crime. At the time of the act in question, that statute read as follows:

A person is guilty of sexual battery if he or she engages in sexual penetration with:
(a) Another person without his or her consent;....
Miss.Code Ann. § 97-3-95 (Supp.1982).

Sexual penetration is the essence of the offense of sexual battery. Section 97-3-97 defines sexual penetration as follows:

(a) “Sexual penetration” includes cunnilingus, fellatio, buggery or pederasty, any penetration of the genital or anal openings of another person’s body by any part of a person’s body, and insertion of any object into the genital or anal openings of another person’s body.
Miss.Code Ann. § 97-3-97 (Supp.1982).

Attempted sexual battery becomes a criminal offense by virtue of the two statutes just mentioned when read in combination with Section 97-1-7 which in pertinent part provides:

Every person who shall design and endeavor to commit an offense, and shall do any overt act toward the commission thereof, but shall fail therein, or shall be prevented from committing the same, on conviction thereof, shall, ... be punished

Our concern is whether there is in the record evidence sufficient to support the jury’s verdict that Larry Van West was guilty of attempted sexual battery. As we have said repeatedly, the jury is charged with the responsibility for weighing and considering conflicting evidence and the credibility of witnesses. See, e.g., Gathright v. State, 380 So.2d 1276, 1278 (Miss.1980); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983). Once the jury has returned a verdict of guilty in a criminal case, we are not at liberty to direct that the defendant be discharged short of a conclusion on our part that on the evidence, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could find beyond a reasonable doubt that the defendant was guilty. Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct. 2781, 2791, 61 L.Ed.2d 560, 576 (1979); Pearson v. State, 428 So.2d 1361, 1364 (Miss.1983).

The facts are uncontradicted. There was no penetration. Moreover, the prosecution, in effect, has conceded that there was no attempt to penetrate. West had every opportunity to penetrate if he had wished to do so. His failure was not the product of his victim’s admittedly ineffective resistance or the intervention of extraneous causes. In this setting what the State proved falls short of an attempt under Section 97-1-7.

Attempt requires “design” on the part of the defendant. By design the statute contemplates “intent”. Whatever West’s intent may have been when he originally inveigled his victim into the apartment (leaving the door open), that intent had dissipated by the time he committed his so-called “overt acts”. Whether he lost his nerve, changed his mind, or whatever, his failure to consummate the crime of sexual penetration was obviously his own decision.

If one walks into a bank with a loaded pistol in his pocket intending to rob the bank and walks up to the teller’s window, but then changes his mind, he has not committed the crime of attempted bank robbery. See Smith v. State, 279 So.2d 652, 653 (Miss.1973). By the same token, Larry Van West on the evidence in this case has not committed the crime of attempted sexual penetration.

The attempt statute requires that, before one may be convicted of attempt, he “shall fail therein, or shall be prevented from committing the same”. The gravamen of this offense of attempt is that the accused have done an overt act toward sexual penetration “and be prevented from its commission”. State v. Lindsey, 202 Miss. 896, 899, 32 So.2d 876, 877 (1947). The State was thus required to prove that Larry Van West attempted sexual penetration but failed therein or that he was prevented from committing the same.

The proof shows neither an attempt nor a failure but a volitional stopping short.

Under our attempt statute prevention or frustration must have resulted from extraneous causes. Bucklew v. State, 206 So.2d 200, 202 (Miss.1968); c.f. Murray v. State, 403 So.2d 149, 152 (Miss.1981). We have no such intervening extraneous cause here. McDole v. State, 229 Miss. 646, 91 So.2d 738 (1957) was an attempted rape case. The defendant’s attempt to commit the crime of rape was interrupted by a third person. This is the sort of intervening extraneous cause contemplated in the Bucklew and Murray cases, as well as by the statute. We have no such interruption here.

We repeat, what Larry Van West did was neither lawful nor laudable behavior. There are other criminal statutes under which he might have been charged. To be sure, the State could have requested a lesser included offense instruction, but it did not. Having placed all of its eggs in one basket, our sole inquiry is whether there was sufficient evidence to support a jury verdict of attempted sexual battery. We hold that there was not.

REVERSED AND RENDERED.

PATTERSON, C.J., WALKER and BROOM, P.JJ., and ROY NOBLE LEE, BOWLING, HAWKINS, DAN M. LEE and PRATHER, JJ., concur.

      . See, e.g., Miss.Code Ann. § 97-3-7(1) (Supp. 1982) (simple assault); Miss.Code Ann. § 97-29-31 (Supp. 1982) (indecent exposure).