text:
    Barry D. LeBLANC v. GIBBENS POOLS, INC.
    No. 84-C-0856.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Gibbens Pools, Inc., applying for Writ of Certiorari or Review to the Fifth Circuit Court of Appeal, No. 83-CA-619, from the Twenty-Fourth Judicial District Court, Parish of Jefferson, No. 249-479.

Denied.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Louisiana v. Michael AUGUSTINE, Thomas Estrada and Fernando Munoz.
    No. 84-KK-0857.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Michael Augustine, Thomas Estrada and Fernando Munoz, applying for Writ of Certiorari to the Fourth Circuit Court of Appeal, No. K-1955, Criminal District Court, Parish of Orleans, Nos. 299-606 and 299-622.

Denied.

DIXON, C.J., and DENNIS, J., would grant the writ.


text:
    MERRICK CONSTRUCTION COMPANY, INC., Max Merrick Farms, Inc., Max Merrill Merrick, Inez Merrick, Dianne Merrick, Carl Joseph Merrick and Scott Steven Merrick v. HARTFORD FIRE INSURANCE COMPANY.
    No. 84-C-0858.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Hartford Fire Insurance Company, applying for Writ of Certiorari and/or Review to the First Circuit Court of Appeal, No. 83-CA-0473, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 241578.

Denied.


text:
    STATE of Louisiana v. Albert N. SMITH.
    No. 84-KK-0860.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Albert N. Smith, applying for Writ of Certiorari, Mandamus and Prohibition, to the Traffic Court for the City of New Orleans, No. F475-008; Orleans Parish Criminal District Court, No. 298-706, Division H; Fourth Circuit Court of Appeal, No. K 2067.

Denied.


text:
    J. Wayne TUCKER, Russell Clark, William H. Russell, and E.A. Picou v. SPECIAL CHILDREN’S FOUNDATION, INC. and Special Children’s Village, Inc.
    No. 84-C-0863.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re J. Wayne Tucker, Russell Clark, William H. Russell, and E.A. Picou, applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal First Circuit, No. 83-CA-0992; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 258-853.

Denied. The result is correct.

BLANCHE, J., would grant the writ.


text:
    Morris Michael LAMANA v. Virginia Theresa LEBLANC.
    No. 84-C-0865.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Morris Michael Lamana, applying for Writs of Certiorari to the First Circuit Court of Appeal, No. 83-CA-0421, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, Family Court, No. 60361, Division “C”.

Denied. Result correct.

CALOGERO, DENNIS and LEMMON, JJ., would grant the writ.


text:
    Allen J. KELLY and Ernest A. Kelly v. TERREBONNE PARISH POLICE JURY.
    No. 84-C-0866.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Allen J. Kelly and Ernest A. Kelly, applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-CA-0523; Parish of Terre-bonne, Thirty-Second Judicial District Court, No. 45918.

Denied.


text:
    Marie H. VACCARO, Individually and as Succession Representative of the Succession of Frank M. Vaccaro, Sr. and as Natural Tutrix of her Minor Child, Vanessa F. Vaccaro; Craig M. Vaccaro, and Frank M. Vaccaro, Jr. v. ALLGOOD, INC., ABC Insurance Company, Caterpillar Tractor Co. and DEF Insurance Company.
    No. 84-C-0868.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Marie H. Vaccaro, Individually and as Succession Representative of the Succession of Frank M. Vaccaro, Sr. and as Natural Tutrix of Her Minor Child, Vanessa F. Vaccaro, Craig M. Vaccaro, and Frank M. Vaccaro, Jr., applying for Writs of Certiorari or Review to the First Circuit Court of Appeal, No. 83-CA-0545, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 248628, Division “J”.

Denied.


text:
    Sarah Dunkley GUERIN, et al. v. John Roy GUERIN, and Sandra Fairchild Guerin.
    No. 84-C-0871.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Sarah Dunkley Guerin, Joseph W. Guerin, Sr., Thomas D. Guerin and Nancy Faye Guerin Couvillon, applying for Writ of Certiorari, to the Court of Appeal, First Circuit, No. 83-CA-0530; Parish of Pointe Coupee, Eighteenth Judicial District Court, No. 16861-C.

Denied.

DIXON, C.J., and CALOGERO and LEM-MON, JJ., would grant the writ.


text:
    HENRY A. III, Curator of Jane Elizabeth Sibley, Interdict v. The BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL & MECHANICAL COLLEGE.
    No. 84-C-0571.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Henry A. Ill, Curator of Jane Elizabeth Sibley, Interdict, applying for writ of Certiorari and/or Review to the First Circuit Court of Appeal, No. 83-CA-0411; 19th Judicial District Court, Parish of East Baton Rouge, No. 249226 Division “B”.

Granted.


text:
    STATE of Louisiana v. Tyrone L. JACK.
    No. 84-KO-0658.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Tyrone L. Jack, applying for Writ of Certiorari and Review, to the Fifth Circuit Court of Appeal, No. 83-K-594, from the Twenty-Fourth Judicial District Court Parish of Jefferson, No. 82-2714.

Denied.

DIXON, C.J., and DENNIS, J., would grant as to sentencing only.


text:
    BNO LEASING CORPORATION v. HOLLINS & HOLLINS, INC. and Percy Hollins.
    No. 84-C-0727.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re BNO Leasing Corporation, applying for Writ of Certiorari or Review to the Fifth Circuit Court of Appeal, No. 83-CA-646, from the Twenty-Ninth Judicial District Court, Parish of St. Charles, No. 24924.

Denied.

DIXON, C.J., and DENNIS and BLANCHE, JJ„ would grant the writ.


text:
    STATE of Louisiana v. Joseph V. FOSTER, Jr.
    No. 84-KH-0848.
    Supreme Court of Louisiana.
    May 25, 1984.
   In re Joseph V. Foster, Jr., applying for Writ of Certiorari and Bail Reduction to the Court of Appeal, No. KW-84-0513, Twenty-First Judicial District Court, Parish of Livingston, No. 4646.

Denied.


text:
    STATE of Louisiana v. H.M. "Mike" CANNON.
    No. 84-KD-1033.
    Supreme Court of Louisiana.
    May 30, 1984.
   In re H.M. “Mike” Cannon, applying for Supervisory Writs of Review, Mandamus, Certiorari and Stay Order, E. Baton Rouge Parish, No. 7-79-451.

All proceedings stayed pending further orders of this Court.


text:
    STATE of Louisiana v. Junius TERRY.
    No. 84-KP-0594.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Junius Terry, applying for Writ of Certiorari, 24th Judicial District Court, Parish of Jefferson, No. 76-2524.

Granted.


text:
    STATE of Louisiana v. Andrew VIERA and Mighel Martinez.
    No. 84-K-0864.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Andrew Viera and Mighel Martinez, applying for Writ of Certiorari and Review to the Fourth Circuit Court of Appeal, No. KA-0940, from Criminal District Court, Parish of Orleans, No. 289-193.

Denied.


text:
    STATE of Louisiana v. Thomas JENKINS, Jr.
    No. 84-KH-1029.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Thomas Jenkins, Jr., applying for Remedial Writs to the Eighteenth Judicial District Court, Parish of Iberville.

Granted and transferred to the Court of Appeal, First Circuit, for its consideration.


text:
    Paulette CHARBONNET, M.N. Washington, Larry Williams and L.L. Coignet, Jr. v. Joseph GERACE, Administrator, Louisiana Department of Employment Security and Federal Aviation Administration Southwest Region.
    No. 84-C-0900.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Paulette Charbonnet, M.N. Washington, Larry Williams and L.L. Coignet, Jr., applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal, Fourth Circuit, No. CA-0822; Civil District Court, Parish of Orleans, No. 82-8682, Division G.

Granted.


text:
    STATE of Louisiana v. David Earl WILSON.
    No. 84-KH-0966.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re David Earl Wilson, applying for Remedial Writs, Parish of St. Tammany, 22nd Judicial District Court, No. 114926.

Granted and transferred to district court for consideration.


text:
    STATE of Louisiana v. Leroy F. OLSEN.
    No. 84-K-0730.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Leroy F. Olsen, applying for Writ of Certiorari and Review, to the Fourth Circuit Court of Appeal, No. KA-1058; Criminal District Court, Parish of Orleans, No. 281-217, Section I.

Denied.


text:
    Mr. and Mrs. L.J. FIDUCCIA v. SHERWOOD NURSERY & GARDEN CENTER, INC. et al.
    No. 84-C-0869.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Mr. & Mrs. L.J. Fiduccia, applying for Writ of Certiorari or Review to the First Circuit Court of Appeal, No. 83-CA-0484, Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 229-765.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Ernest MEADORS v. PACIFIC INTERNATIONAL PETROLEUM, INC., et al.
    No. 84-C-0877.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Ernest Meadors, applying for Cer-tiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-CA-0385; 21st Judicial District Court, Parish of Livingston, No. 33533.

Denied.


text:
    Frances Vandersypen LACHNEY (now Herring) v. Gordon Wayne LACHNEY.
    No. 84-C-0880.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Frances Vandersypen Lachney (now Herring), applying for Writ of Certio-rari or Review to the Third Circuit Court of Appeal, No. 83-305, Parish of Rapides, Ninth Judicial District Court, No. 112-795.

Denied.


text:
    Dr. Samuel E. FIELD, Jr. v. June B. MERRITT and the Commission of Insurance.
    No. 84-C-0881.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re June B. Merritt, applying for Writs of Certiorari and/or Review, to the First Circuit Court of Appeal, No. 83-CA-0250, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 261-300, Division “H”.

Denied.

DIXON, C.J., and CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana v. Alvin JOHNSON.
    No. 84-K-0884.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Alvin Johnson, applying for Writ of Certiorari or Review, to the Court of Appeal, First Circuit, No. 83-KA-1104; 19th Judicial District Court, Parish of E. Baton Rouge, Nos. 1-83-1065 and 11-80-801.

Denied.


text:
    STATE of Louisiana v. Caesar T. HARMASON.
    No. 84-K-0885.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Caesar T. Harmason, applying for Writ of Certiorari to the First Circuit Court of Appeal, No. 83-KA-0930, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 4-82-298, Division “V”.

Denied.


text:
    Tommy A. THOMAS v. RPM CORPORATION and the Hanover Insurance Companies.
    No. 84-C-0888.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re RPM Corporation and The Hanover Insurance Companies, applying for Writ of Certiorari or Review to the Court of Appeal, First Circuit, No. 83-CA-0359; 23rd Judicial District Court, Parish of Ascension, No. 30218, Div. A.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Lonnie E. MILLER.
    No. 84-K-0889.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Lonnie E. Miller, applying for Writ of Certiorari, to the First Circuit Court of Appeal, No. 83-KA-0793; Parish of East Feliciana, Twentieth Judicial District Court, No. 8-82-412.

Denied.

LEMMON, J., would grant as to Assignment of Error # 2.


text:
    Fred D. BOSLEY, Sr. v. PAYNE & KELLER OF LOUISIANA, INC.
    No. 84-C-0890.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Fred D. Bosley, Sr., applying for Supervisory Writs of Certiorari, Prohibition and Mandamus to the First Circuit Court of Appeal, No. 83-CA-0331, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 258951, Division

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Cathy T. WALKER v. Dudley N. GRANTHAM, Walt Bradley, Jake Jacobs, Clark Equipment Company, ABC Insurance Company and DEF Insurance Company.
    No. 84-C-0893.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Cathy T. Walker, applying for Cer-tiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-CA-0308; 19th Judicial District Court, Parish of E. Baton Rouge, No. 238959.

Denied.


text:
    Louise L. PRINCE v. BATON ROUGE GENERAL HOSPITAL, et al.
    No. 84-C-0891.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Louise L. Prince, applying for Writ of Certiorari and Review to the First Circuit Court of Appeal, No. 83-CA-0491, from the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 234552.

Denied.

DIXON, C.J., would grant the writ.


text:
    Joyce Cauvin HOCKE v. Leslie G. HOCKE.
    No. 84-C-0894.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Joyce Cauvin Hocke, applying for Certiorari or Writ of Review, to the Court of Appeal, Fourth Circuit, No. CA-1422; Civil District Court, Parish of Orleans, No. 82-11452.

Denied.

DIXON, C.J., and CALOGERO and DENNIS, JJ., would grant the writ.


text:
    Carol D. HANKS v. DEPARTMENT OF STATE CIVIL SERVICE AND DEPARTMENT OF NATURAL RESOURCES.
    No. 84-C-0898.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Carol Hanks, applying for Writ of Certiorari or Review to the First Circuit Court of Appeal, No. 83-CA-0324, From the State Civil Service Commission, No. 2901.

Denied.

CALOGERO, J., would grant the writ.


text:
    Marshall E. TITLE v. PONTCHARTRAIN HOTEL and its Liability Insurer, The ABC Insurance Company.
    No. 84-C-0901.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Marshall E. Title, applying for Writ of Certiorari and/or Review to the Fourth Circuit Court of Appeal, No. CA-1415; Civil District Court, Parish of Orleans, No. 83-743, Section C.

Denied.

DENNIS and WATSON, JJ., would grant the writ.


text:
    STATE of Louisiana v. Earl VOLPE.
    No. 84-K-0902.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Earl Volpe, applying for Writ of Certiorari, to the First Circuit Court of Appeal, No. 83-KA-0969, from the Twentieth Judicial District Court, Parish of West Feliciana, No. W-82-4-505.

Denied.

LEMMON, J., would grant the writ.


text:
    Melvin Jean BALDWIN v. SCHWEGMANN GIANT SUPER MARKETS, INC.
    No. 84-C-0907.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Schwegmann Giant Super Markets, Inc., applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal, Fourth Circuit, No. CA-1406; Civil District Court, Parish of Orleans, No. 82-15309, Division K.

Denied.


text:
    Audrey MUSE v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 84-C-0908.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re New Orleans Public Service, Inc., applying for Writs of Review or Certiorari to the Fourth Circuit Court of Appeal, No. CA-1202, from Civil District Court, Parish of Orleans, No. 82-5938, Division I.

Denied.


text:
    Helen Anthony wife of/and Benjamin ANTHONY v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. 84-C-0910.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Helen Anthony Wife of/and Benjamin Anthony, applying for Writ of Review to the Court of Appeals, Fourth Circuit, No. CA-1350; Parish of Orleans, Civil District Court, No. 80-9260.

Denied.


text:
    Luther Wesley COATES v. LOCAL 270 OF the INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, AND WAREHOUSEMEN OF AMERICA, Ronald Cousins, Lonnie Hammond and James Luckey.
    No. 84-C-0913.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Luther Wesley Coates, applying for Certiorari, or Writ of Review, to the Court of Appeal, Fourth Circuit, No. CA-1265; Civil District Court, Parish of Orleans, No. 80-8155.

Denied.


text:
    Keith J. TOLLESON and Gerald L. Tolleson v. STATE FARM FIRE AND CASUALTY COMPANY, et al.
    No. 84-C-0915.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Keith J. Tolleson and Gerald L. Tolleson, applying for Writ of Certiorari and Review to the First Circuit Court of Appeal, No. 83-CA-0612, from the Thirty-Second Judicial District Court, Parish of Terrebonne, No. 63998.

Denied.


text:
    SUCCESSION OF Mrs. Marie Theresa DUVIO.
    No. 84-C-0917.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Shirley D. Osment, applying for Writ of Certiorari or Review to the Fourth Circuit Court of Appeal, No. CA-1025, Parish of Orleans, Civil District Court, No. 77-15931.

Denied.


text:
    Bernice YOUNG, Individually and on Behalf of her Minor Children, Mark William Young, Kevin William Young, Tina Marie Young v. HERCULES, INC.
    No. 84-C-0920.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Bernice Young, Individually and on Behalf of Her Minor Children, Mark William Young, Kevin William Young, Tina Marie Young, applying for Writs of Certio-rari and Review, to the Third Circuit Court of Appeal, No. 83-554, from the Fourteenth Judicial District Court, Parish of Calcasieu, No. 80-2116.

Denied.

WATSON, J., would grant the writ.


text:
    Paul Dean MANNING v. BETTER WAY COATINGS, INC.
    No. 84-C-0924.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Paul Dean Manning, applying for Writ of Certiorari, or Writ of Review, to the Court of Appeal, First Circuit, No. 83-CA-0588; Parish of East Baton Rouge, Nineteenth Judicial District Court, No. 254221, Division M.

Denied.


text:
    STATE of Louisiana ex rel. Douglas JOHNSON v. Ross MAGGIO, Jr., Warden.
    No. 84-KH-0933.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Douglas Johnson, applying for Remedial Writ to the Nineteenth Judicial District Court, Parish of East Baton Rouge, No. 4-82-393.

Denied.


text:
    STATE of Louisiana v. Corbie L. WILLIAMS, Sr. and Helen Bernice Williams.
    No. 84-K-0944.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Corbie L. Williams, Sr. and Helen Bernice Williams, applying for Writs of Certiorari, Prohibition and Mandamus to the Third Circuit Court of Appeal, No. CR-83-389; 30th Judicial District Court, Parish of Vernon, No. 36770.

Denied.


text:
    STATE of Louisiana v. Steven CORKRAN.
    No. 84-K-0948.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Steven Corkran, applying for Writ of Certiorari or Review to the Third Circuit Court of Appeal, No. K-83-779, Thirtieth Judicial District Court, Parish of Vernon, No. 37420.

Denied.


text:
    STATE of Louisiana v. Eddie L. SMITH.
    No. 84-OK-1009.
    Supreme Court of Louisiana.
    June 1, 1984.
   In re Larry A. Stewart, applying for Stay Order, Supervisory and Remedial Writs, to the 9th Judicial District Court Parish of Rapides, No. 208982.

Denied. Application is pending in Court of Appeal, 3rd Circuit.


author: SAVOIE, Judge.

text:
    Mayer MITCHELL, et al. v. EARCETERA, INC.
    No. 84 CM 0377.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 1984.
    Sidney Sundberry, Duval, Funderburk, Sundberry & Lovell, Houma, for plaintiffs and appellees.
    Edward James Gaidry, Houma, for defendant and appellant.
    Before COVINGTON, COLE and SA-VOIE, JJ.
   SAVOIE, Judge.

This matter is presently before the Court on a motion to dismiss the appeal of an eviction judgment as suspensive. It was filed as a writ application, but we consider such matters as motions.

Plaintiffs filed suit seeking the eviction of defendant from commercial property leased by plaintiffs to defendant. Defendant’s answer asserted an affirmative defense. It was signed by a representative of defendant (corporation), as well as by defense counsel. However, the answer was not made under oath.

Judgment was signed on March 19, 1984, in favor of plaintiffs, ordering defendant to immediately vacate the premises. On that same date, defendant moved for and was granted a suspensive appeal and posted the required bond.

Plaintiffs now seek to have the appeal dismissed as suspensive on the basis that defendant’s answer was not made under oath. Defendant argues that the fact that the answer was signed by a representative of defendant itself, not just defense counsel, should suffice.

L.S.A.-C.C.P. Article 4735 provides:

“An appeal does not suspend execution of a judgment of eviction unless the defendant has answered the rule under oath, pleading an affirmative defense entitling him to retain possession of the premises, and the appeal has been applied for and the appeal bond filed within twenty-four hours after the rendition of the judgment of eviction. The amount of the suspensive appeal bond shall be determined by the court in an amount sufficient to protect the appellee against all such damage as he may sustain as a result of the appeal.” (Emphasis added).

An appellant must comply literally with the requirements of this statute in order to obtain a suspensive appeal of a judgment ordering eviction. Alexander v. Williams, 205 So.2d 456 (La.App. 1st Cir.1967). See also Landry v. Barras, 434 So.2d 685 (La.App. 3rd Cir.1983); Rourke v. Cloud, 398 So.2d 57 (La.App. 3rd Cir.1981). “An affirmative defense in an eviction proceeding must be pleaded under oath personally sworn to by defendant in order to permit the subsequent taking of a sus-pensive appeal by defendant.” Estate of Boudreaux v. Verdin, 425 So.2d 873 (La.App. 1st Cir.1982).

Defendant’s argument that the personal signature of its representative should suffice may appear to be reasonable in view of the fact that L.S.A.-C.C.P. art. 863 does not require that answers, in general, be under oath. However, that Article itself contains a proviso — “except as otherwise provided by law.” The provision of L.S.A.C.C.P. art. 4735 requiring that the answer be under oath is clear and unambiguous. It may not be ignored. The authorities cited by defendant in support of its position do not support its argument.

Although the appeal must be dismissed as suspensive, it should be maintained as devolutive. See Estate of Boudreaux v. Verdin, supra.

Accordingly, the appeal is dismissed as a suspensive appeal, but maintained as a de-volutive appeal.


author: NORRIS, Judge.

text:
    SUCCESSION OF Fausto MAGNANI.
    No. 16212-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Cady, Thompson & Duncan by Thomas N. Thompson, Shreveport, for defendants-appellants.
    Tucker, Martin, Holder, Jeter & Jackson by Katherine Brash Jeter, Shreveport, for defendant-appellee.
    S. Judd Tooke, Shreveport, for plaintiff-appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

In this succession proceeding, eight particular cash legatees appeal a judgment in a concursus proceeding interpreting a dispute arising from a compromise and settlement agreement entered into between the particular legatees and the residuary legatee over the payment of inheritance taxes in favor of the residuary legatee. We affirm. The issue presented on appeal is whether the parties consented in the compromise agreement that the particular legatees would receive 75% of the total amount of each particular legacy bequeathed by the decedent free and clear of Louisiana inheritance taxes. We conclude that they did not and for that reason affirm the judgment.

This case was tried on the record and a joint written stipulation which we summarize as follows: Fausto Magnani died on February 23, 1980, leaving a last will and testament. In this will, the decedent made certain particular bequests to named individuals and one charitable corporation leaving the balance of his estate in a charitable trust with Louisiana Bank and Trust Company appointed as trustee. The will did not relieve the particular legatees from the payment of inheritance and estate taxes. Because some of the will’s provisions were unclear, the executor of the estate filed a Petition for Declaratory Judgment seeking clarification of the will. The question involved was whether the phrase “from fresh, ready cash” immediately preceding the particular bequests established a fund whereby the particular bequests could only be satisfied “from fresh, ready cash” or whether the particular bequests were not subject to the phrase “from fresh, ready cash” and could be satisfied from any of the decedent’s property after the liquidation of non-cash assets. Because there was insufficient cash on hand in the succession to satisfy the particular legacies, the particular legatees opposed the first interpretation and supported the alternate interpretation.

After the filing of the petition for declaratory judgment, several conversations and at least one conference were had among the executor, the attorneys for the particular legatees and the attorney for the trustee. Ultimately, a compromise and settlement agreement was reached between the parties in which the particular legatees were to receive 75% of the bequests set forth in the testament. The settlement agreement was prepared by the attorney for the particular legatees. As prepared, the document was to be signed by the attorney on behalf of the legatees that he represented and by the attorney for the particular legatee that the preparer did not represent. The attorneys for the trust and the executor indicated that they preferred to have each legatee sign the agreement individually and the attorney for the particular legatees agreed to this modification. Therefore, the executor had the agreement re-typed for this purpose making no other changes except those necessary in the appearance and signature provisions. The agreement was subsequently executed by all parties without further changes.

After the execution of the agreement, the executor sent the attorney for the particular legatees checks for each particular legatee in the amount of 75% of the bequests less the Louisiana state inheritance taxes due by each legatee on each bequest. The attorney objected to the sums tendered contending that under the language of the compromise and settlement agreement each particular legatee was to receive 75% of the total amount bequeathed free and clear of Louisiana inheritance taxes with the trustee of the residuary legacy to pay all such taxes. It is the position of the attorney for the particular legatees that the word “taxes” used in the agreement included the Louisiana inheritance taxes due by each of the particular legatees on the bequests received as well as any taxes that were general obligations of the succession.

When it became apparent that the disagreement concerning the interpretation of the compromise and settlement agreement could not be resolved, a concursus proceeding was filed by the executor and answered by the particular legatees and the trustee of the residuary legatee.

The trustee filed a Motion for Summary Judgment urging that there were no disputed issues of material fact and that it was entitled as a matter of law to a judgment rejecting the particular legatees’ interpretation of the compromise and settlement agreement.

Affidavits were filed in support of the motion which declared that at no time during the discussions leading up to the agreement was the subject of the responsibility for the payment of inheritance taxes on the particular legacies discussed, nor was any demand made on behalf of the particular legatees that they receive their bequests free and clear of the Louisiana inheritance taxes imposed on them by law.

Counteraffidavits filed did not contest the truth of the supporting affidavits but asserted that the matter of inheritance taxes had been discussed between the attorneys for the particular legatees and their clients. However, they acknowledged that the matter of inheritance taxes was never discussed with the executor or the attorney for the trustee. Both asserted that a demand was made on behalf of the particular legatees for 75% of the total amount of each cash legacy.

The motion for summary judgment was denied. Thereafter, the parties entered into the above summarized stipulation in which it was further stipulated that the matter be tried upon all of the pleadings and filings in this cause, as well as the stipulated facts and briefs. In this posture, the case was submitted to the trial court.

After considering the issues involved, the trial court was of the opinion that the general rule of law should be followed in this case thereby making each particular legatee responsible for his own inheritance taxes upon a finding that the agreement did not clearly indicate to the contrary. Accordingly, Louisiana Bank and Trust Company, as trustee, was decreed to be the owner of the sum on deposit in the registry of the court.

In summary, the position of the particular legatees is that under the compromise agreement each particular legatee should receive a full 75% of the cash legacy made to each of them under the terms of the will, that all debts, claims, taxes, funeral expenses, administrative costs, and fees due should be paid by the executor, and the residuary legatee should receive the remainder of the estate because the payment of all taxes, including inheritance taxes, by the residuary legatee is clearly and unambiguously within the scope of the compromise agreement which was to resolve the amount the cash legatees would receive in satisfaction of the legacies.

Conversely, Louisiana Bank and Trust Company argues that because the will contains no directive to relieve the particular legatees from the burden of inheritance tax, their liability was so clear and undisputed that this question was not at issue in the proceeding for declaratory judgment which resulted in the compromise and settlement. It is contended that this issue was never raised in any of the discussions leading up to the compromise and that any ambiguity in that regard contained within the agreement should be construed against the particular legatees.

Accordingly, we must examine the compromise agreement in light of the applicable legal principles to answer the ultimate question presented for our resolution.

Transaction or compromise is defined by La.C.C. Art. 3071:

A transaction or compromise is an agreement between two or more persons, who, for preventing or putting an end to a lawsuit, adjust their differences by mutual consent, in the manner which they agree on, and which every one of them prefers to the hope of gaming, balanced by the danger of losing.
This contract must be either reduced into writing or recited in open court and capable of being transcribed from the record of the proceeding. The agreement recited in open court confers upon each of them the right of judicially enforcing its performance, although its substance may thereafter be written in a more coqvenient form.

A transaction or compromise has also been described as “an onerous, synallagmatic and consensual contract”. Under the general rules pertaining to contracts, it is the law between the parties [La.C.C. Art. 1901] and must be interpreted according to the clear and explicit terms found in the agreement [La.C.C. Art. 1945]. Ritchey v. Azar, 383 So.2d 360 (La.1980).

Of further import in the interpretation of the operative language of a compromise is La.C.C. Art. 3073:

Transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties, whether it be explained in a general or particular manner, unless it be the necessary consequence of what is expressed; and they do not extend to differences which the parties never intended to include in them.
The renunciation, which is made therein to all rights, claims and pretensions, extends only to what relates to the differences on which the transaction arises.

Accordingly, in order to have a valid compromise, there must be a meeting of the minds between the parties as to exactly what they intended when the compromise was reached. Munna v. Mangano, 404 So.2d 1008 (La.App. 4th Cir.1981). A compromise extends only to the differences which the parties intended to include therein. Troy v. Bretz, 399 So.2d 667 (La.App. 1st Cir.1981). Thus, transactions regulate only the differences which appear clearly to be comprehended in them by the intention of the parties. Halford v. Dugas, 422 So.2d 693 (La.App. 3d Cir.1982). The meaning and effect of a compromise agreement is determinable on the principle that the contract must be construed as a whole and in the light of attending events and circumstances. Succession of Teddlie, 385 So.2d 902 (La.App. 2d Cir.1980). With these principles in mind, any resolution of the issue herein must be based upon our determination of what the parties could reasonably have intended by the language employed in the compromise agreement in light of the surrounding circumstances.

The dispute bringing on the initial judicial proceeding between the parties centered around the interpretation of certain specific language in the will of the decedent:

Subject to the charitable trust created herein below and to the payment of claims, funeral, burial and administration expenses and estate taxes, I make the following bequests:
From fresh, ready cash:
I hereby bequeath to DONNIE DO-WELL, my true and loyal housekeeper for these many years, the sum of $20,-000.00.
To my dear friend HENRY C. JOS-TOK of Chicago, Illinois, the sum of $10,-000.00.
To my friend and barber DANNIE L. GADDY, the sum of $5,000.00.
To my dear friend, BILLY SHIPP of Haughton the sum of $5,000.00.
To JOHNNY RODRIGUES, JR. of Jefferson, Texas, the sum of $5,000.00.
To ANNE ADAMS of Shreveport, the sum of $5,000.00.
To MARGARET WARD of Haughton, the sum of $5,000.00.
To JOSEPHINE CARMODY of Shreveport, the sum of $5,000.00.
To ANIMAL WELFARE, INC., a nonprofit, charitable organization located in Shreveport, I leave the sum of $2,000.00. * * * [Emphasis added.]

While the will made total cash bequests in the amount of $62,000, the executor claimed that the total “fresh, ready cash” amounted to $38,511.93 subject to an indebtedness of the succession in the amount of $17,596.08. However, the estate did possess other assets totalling approximately $510,000. Consequently, the executor filed a petition for declaratory judgment seeking a construction of the term “fresh, ready cash” to mean that all cash legacies should be made only from the cash on hand at the time of the decedent’s death and that any liquidation of non-liquid assets undertaken by the executor because of exigent circumstances should not be construed to increase the amount of available fresh, ready cash.

The trustee for the residuary legatee filed a general denial answer to this petition. However, the particular legatees in their answer alleged that they were entitled to be paid out of the effects of the succession after the legacies of certain objects were taken out and that the cash legacies were entitled to be discharged in preference to the residual legacy.

Thereafter, the executor petitioned the court for authority to compromise the action for declaratory judgment. The compromise agreement contains the following pertinent language:

* * * in consideration of the premises and the benefits received and to be received, and mutual obligations incurred hereunder by them and each of them, do now agree, each with the other and with each other, that all of their aforesaid differences and controversies and the aforesaid lawsuit shall be settled, adjusted and compromised as among the parties hereto on the terms and conditions hereinafter set forth, and in order to accomplish such purposes, they and each of them do now expressly agree as follows:
Each cash legatee, under the Last Will and Testament of Maestro Fausto Magnani dated February 17, 1980 shall receive seventy-five percent (75%) of the total amount of each cash legacy made in said Will.
Louisiana Bank and Trust Company of Shreveport, Louisiana shall receive as residuary legacy the entire remainder of the estate of Maestro Fausto Mag-nani after the payment of debts, claims, taxes, funeral expenses, administrative costs, fees and seventy-five percent of the cash legacies.

We believe that the intent of the parties, as evidenced by the language of the compromise’agreement and the attendant circumstances surrounding it, was solely to clear up a dispute over what constituted fresh, ready cash and thus, from what assets of the succession the particular cash legatees were to be paid. This is evidenced by the language of the compromise itself and the petition for authority to compromise the action. This conclusion is further bolstered by the stipulation of facts in which it is stipulated that the question of who was to pay the inheritance taxes on the particular legacies was never discussed among the attorneys in their negotiations. While counsel for the particular legatees represents that the payment of taxes was discussed between counsel and the particular legatees, he does not dispute that this subject was never mentioned to the executor or the attorney for the trustee. Accordingly, we do not find that the language used indicates a clear intention of the parties to compromise any claim regarding the payment of inheritance taxes on the individual cash legacies. In fact, it is clear from the evidence in the record that the differences that existed between the parties when the compromise agreement was executed did not extend to the payment of inheritance taxes.

This conclusion is likewise supported by the fact that the parties failed to use language in the compromise agreement which would clearly indicate that the estate or the trustee would be liable for the payment of those taxes. If the parties’ intent in compromising this matter had been to include the question of the payment of inheritance taxes, then that result could have been assured by using language clearly expressing that intention. See Ritchey v. Azar, supra. It is significant that the compromise agreement was drafted by the attorney for the particular legatees; therefore, it is self evident that if he had intended that the estate or the trustee be liable for the payment of inheritance taxes rather than the particular legatees, he was in the best position to evidence that intent by the use of clear, unequivocal language to accomplish that purpose in his draft agreement. Furthermore, because the attorney for the particular legatees was the drafter of the operative language in this instrument, any ambiguity contained therein must be construed against the particular legatees. La.C.C. Art. 1958; Kuhn v. Planche Real Estate Co., 185 So.2d 210 (La.1966); Carpenter v. Leon E. Werntz & Assoc., Inc., 345 So.2d 1018 (La.App. 2d Cir.1977). Because “after the payment of debts, claims, taxes, funeral expenses, administrative costs, fees ...” as used in the compromise agreement is at best ambiguous, we must conclude that the agreement made no provision for the payment of 75% of the total amount of each particular legacy in the will free and clear of Louisiana inheritance taxes.

For the foregoing reasons, we find the judgment of the trial court to be correct, and it is affirmed at the cost of appellants.

JUDGMENT AFFIRMED.


author: KLIEBERT, Judge.

text:
    STATE of Louisiana In the Interest of the Minor Children, Sharon DILLARD, Karen Dillard and Cerissa Dillard.
    No. 83-CA-710.
    Court of Appeal of Louisiana, Fifth Circuit.
    May 14, 1984.

      Richard J. Brazan, Jr., Baton Rouge, for plaintiff-appellant.
    ■ Ann Keller, Gretna, for defendant-appel-lee Melvin Brown.
    Samuel Stephens, Gretna, for defendant-appellee Florita Dillard.
    Before BOUTALL, KLIEBERT and GAUDIN, JJ.
   KLIEBERT, Judge.

This suspensive appeal was brought by the Department of Health and Human Resources (DHHR) from the trial judge’s appointment of attorneys to represent the parents and the minor children in an abandonment action and directing that the cost of the attorneys be borne by the DHHR.

The proceedings commenced when, pursuant to the provisions of LSA-R.S. 9:403, the State, through the attorney for the DHHR filed an affidavit setting forth the facts constituting the abandonment of Sharon, Karen and Cerissa Dillard, the born out-of-wedlock children of Florita Dillard and Melvin Brown.

When service was not obtained in ten days, the court appointed Samuel Stephens, Esquire, as the curator ad hoc and legal representative of the mother, Florita Dillard, and Arthur Kingsmill, Esquire, as the curator ad hoc and legal representative for the father, Melvin Brown, all in accordance with the provisions of LSA-R.S. 9:403.

Attorney Kingsmill located the father in New Orleans and motioned the court for his discharge as the curator. The court permitted his discharge and fixed his fee as curator at $150.00 plus costs of $28.56. Attorney Stephens located the mother who was incarcerated in Alderson, West Virginia.

Following a hearing, by judgment dated March 17, 1983, the court appointed Ann Keller, Esquire, as attorney for the father and Samuel Stephens, Esquire, as attorney for the mother and ordered the DHHR to bear all costs of the attorneys representing the indigent parents and stated his basis for doing so was Code of Juvenile Procedure Article 95 B; State in the Interest of Lamm, 423 So.2d 1210 (La.App. 4th Cir.1982), and State in the Interest of Boudreaux, 427 So.2d 891 (La.App. 1st Cir.1983). The trial judge then rescheduled the abandonment hearing for May 26,1983. Thereafter, the DHHR filed for and was granted a suspensive appeal from the judgment dated March 17, 1983.

Subsequently, on the rescheduled hearing date, i.e., May 26, 1983, the trial judge issued an amended judgment in which it directed the following:

(1) Ordered the discharge of Arthur Kingsmill, Esquire, as curator; fixed his fee at $150.00 plus costs, and ordered the payment of same by the DHHR citing Code of Juvenile Procedure article 95B and State in the Interest of Lamm, 423 So.2d 1210 ([La.App.] 4th Cir.1982) as authority for same;
(2) Ordered the discharge of Samuel Stephens, Esquire, as curator, and awarded him a fee of $150.00 plus costs;
(3) Appointed Ann Keller, Esquire, to represent the indigent father, Melvin Brown;
(4) Appointed Samuel Stephens, Esquire, to represent the indigent mother, Florita Dillard;
(5) Appointed Wiley Beevers, Esquire, to represent the minor children; ordered the DHHR to bear all costs of the attorney and cited article 95B and State in the Interest of Lamm, supra, as a mandatory requirement for the order.

The DHHR filed for and was granted a suspensive appeal from the May 26, 1983 amended judgment.

Although the suspensive appeal, applied for and granted, was as to the entirety of the judgments dated March 17, 1983 and May 26, 1983, in his brief counsel for the DHHR limits his arguments to the authority of the Juvenile Court to appoint an attorney to represent the minor children and its authority to impose the cost of same on the DHHR where the attorney appointed is an Indigent Defendant Board attorney. We consider only the issues which were briefed.

With respect to the first question raised in the DHHR’s brief, the Fourth Circuit Court of Appeal, in State in the Interest of Brown, 387 So.2d 1366 (La.App. 4th Cir.1980), writ denied 394 So.2d 615 (La.1980), in a proceeding involving a change of custody and children in need of care, concluded that under the provisions of LSA-C. J.P. Article 95, the Juvenile Court was mandatorily required to appoint a special attorney to represent the interest of the child in any proceeding. However, in State in the Interest of Dronet, 417 So.2d 1356 (La.App. 3rd Cir.1982) the Third Circuit (one judge dissenting), in a child in need of care proceeding, after acknowledging the existence of the Brown ease, supra, concluded the Juvenile Court was not manda-torily required to appoint a special attorney to represent the minor child.

As we perceive the issues involved, their resolution depends upon the particular statutory provisions or the constitutional mandate under which the trial judge makes the appointment. The statute, LSA-R.S. 9:403, under which the abandonment proceeding was initiated neither provides for nor prohibits the appointment of a special counsel for the children. Therefore, the court’s authority to appoint an attorney to represent the minor children must be derived from some other source. The trial judge concluded the authority was mandated by LSA-C.J.P. Article 95, which reads as follows:

“A. A child shall be entitled to counsel in the following proceedings:
(1) A hearing to determine continued custody;
(2) An appearance to answer a petition which requests that the child be adjudicated to be a delinquent;
(3) A transfer hearing pursuant to R.S. 13:1571.1 et seq.;
(4) An adjudication hearing if the petition requests that the child be adjudicated to be a delinquent;
(5) A deposition hearing if the child has been adjudicated to be a delinquent;
(6) A hearing on a motion to modity the judgment of disposition in delinquency proceedings if the motion is filed by the district attorney or probation officer, unless the motion requests that the disposition be less restrictive;
(7) An appeal if the child has been adjudicated to be a delinquent.
B. The child shall be entitled to counsel in any other proceeding.
C. If the parents of the child are financially unable to afford counsel, the court shall appoint counsel in accordance with R.S. 15:141 et seq.
D. If the parents of the child are financially able to afford counsel but fail to employ counsel, the court may appoint counsel to represent the child at the expense of the parents in accordance with R.S. 15:148.”

In our view, to interpret Part B of Article 95 as mandatorily requiring the Juvenile Court to appoint a special attorney in all proceedings in which the minor is involved, as was done by the Fourth Circuit, renders Part A of Article 95 meaningless. We believe adherence to rules of statutory construction requires reading the entirety of the article in para materia with other statutory and constitutional provisions in order to give meaning to each section of the article.

All of the sub-parts (2) thru (7) of Part A of Article 95 refer to the proceedings involving the delinquency of the minor. Sub-part 1 of Part A of Article 95 has reference to the continued custody proceeding provided for by LSA-C.J.P. Articles 38 thru 41. The grounds for such a proceeding enumerated in Article 40 all involve the delinquency of the minor and/or his abuse or neglect by the parent.

The same charges as those referred to in Part A of Article 95 brought against an adult would result in a criminal proceeding and possible imprisonment upon conviction. As to the minor, proof of the delinquency can result in commitment to a home for delinquent children. Thus, although brought by a different procedure and in a different court, the proceedings contemplated by Part A of Article 95 are for the purpose of determining whether an offense punishable by confinement was committed by the minor.

The State, by LSA Constitution Article 1, Section 13, is mandated to furnish court appointed counsel to an indigent person “charged with an offense punishable by imprisonment”. Additionally, the provision mandates the legislature to “provide for a uniform system of securing and compensating qualified counsel for indigents”. In compliance with the mandate to provide a uniform system of securing and compensating qualified counsel for indigents, the legislature enacted LSA-R.S. 15:141 thru 149. Sections 141, 142 and 143, which provided for a State Indigent Defendant Board, were repealed by Act No. 873 of the 1981 Legislative Session. Sections 144 thru 149, providing for the creation, powers and funding of Judicial District Indigent Defendant Boards, are still in effect.

A minor is entitled to at least all of the rights of an adult. Hence, the mandate of LSA Constitution Article 1, Section 13, applies to minors as well as to adults. Since all of the proceedings enumerated in Part A of Article 95 are proceedings where the State is constitutionally mandated to furnish an attorney for an indigent defendant, the Court is mandatorily required to make the appointment in those proceedings. Conversely, since the constitutional mandate is applicable only to proceedings enumerated in Part A, the appointment of an attorney in other proceedings is mandatory only where there is some special statutory provision other than Article 95 mandating the appointment.

Under Part C of Article 95, where “the parents are financially unable to afford counsel, the Court shall appoint the counsel in accordance with LSA-R.S. 15:141, et seq.” Also, under Part D of Article 95, where the parents are financially able to employ counsel but fail to do so, “the Court may appoint counsel to represent the child at the expense of the parents in accordance with LSA-R.S. 15:148.” Thus, whether the minor’s entitlement to an attorney is by virtue of Part A or Part B of Article 95, the manner in which the attorney is to be procured and paid is directed by Part C or Part D of the article, depending upon the financial ability of the parents.

Here, the order appointing the attorney to represent the minors specifically stated the appointment was made pursuant to Part B of Article 95 and cites State in the Interest of Lamm, 423 So.2d 1210 (La.App. 4th Cir.1982) as authority for assessing the cost thereof to the DHHR.

The Lamb case is distinguishable from the circumstance involved here. In the Lamm case, the attorney appointed to represent the minor had already rendered the services and it was necessary that he be compensated. It is unknown whether he was an Indigent Defendant Board Attorney. Since the initiator of the proceeding was the DHHR and the parents were absentees, it was fair and just to assess the cost to the DHHR. Here, however, the parents are indigent, the services have not as yet been rendered and the court specifically stated the appointment was made pursuant to Article 95 B.

Although not reflected by the record, the attorney for the DHHR points out that the attorney appointed here is employed by the Indigent Defendant Board and compensated by the Board pursuant to the provisions of LSA-R.S. 15:144, et seq. Thus, although the court acted within its authority in appointing an Indigent Defendant Board attorney to represent the minors, it erred in assessing the cost thereof to the DHHR.

Accordingly, insofar as the judgment appealed from directs the DHHR to pay the fees of the attorney to represent the minor, it is reversed, and in all other respects it is affirmed.

REVERSED IN PART; AFFIRMED IN PART.

      . Within the meaning of LSA-CJ.P. Article 13(14).


author: FORET, Judge.

text:
    Ernest PROCELL, Plaintiff-Appellee, v. EMPLOYERS LIABILITY INSURANCE COMPANY OF WISCONSIN, Defendant-Appellant.
    No. 83-665.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.

      Brittain & Williams, Joseph Payne Williams, Natchitoches, for defendant-appellant.
    Thomas & Dunahoe, G.P. Thomas, Jr., Natchitoches, for plaintiff-appellee.
    Before FORET, LABORDE and YEL-VERTON, JJ.
   FORET, Judge.

Ernest M. Procell sued his former employer, Willamette Industries and its insurer, Employers Liability Insurance Company of Wisconsin (hereinafter referred to as Wausau) for worker’s compensation benefits, penalties, and attorney’s fees. The issues on appeal are:

(1) Whether the trial court erred in finding claimant to be totally and permanently disabled;
(2) Whether the trial court erred in setting the date from which benefits were to run;
(3) Whether the trial court erred in setting the amount of compensation;
(4) Whether the trial court erred in granting claimant penalties and attorney’s fees.

FACTS

Ernest M. Procell was employed by Willamette Industries at its mill in Zwolle, Louisiana, as a heavy-equipment operator. Some time prior to June 1, 1980, claimant was driving a log loader when the right front wheel of the loader fell into a deep hole in the log yard. Consequently, claimant was thrown about inside the cab and struck his left hip on an unpadded armrest, causing a large bruise to develop. -

At first, the pain was not severe and claimant missed no work due to his injury. His condition began to gradually worsen, however, and became so severe as to require medical attention. Claimant decided on March 1,1981, that he must see a doctor and finally saw one for the first time on March 3, 1981. The examination revealed that claimant suffered from asceptic necrosis of the left femural head, which is a deterioration of the bone caused by the gradual cutting off of the blood supply. Because of the injury, claimant immediately underwent surgery for a total hip replacement. After the operation, claimant continued to experience pain and remained out of work for over a year. During this period of inactivity, Wausau paid claimant $148 per week in compensation.

In June of 1982, claimant began working on a part-time basis with the Sabine Parish Police Jury as a CETA supervisor. Later on, in August of the same year, claimant began working full-time as a motor-grader operator. Feeling that claimant was partially, permanently disabled, when Wau-sau discovered that claimant was back at work, they suspended benefits on September 30, 1982, because claimant was making more with the Parish than he was as an employee of Willamette.

After claimant’s benefits were cut off, he filed suit. Without assigning reasons for judgment, the trial court found the claimant to be totally and permanently disabled and awarded him $148 per week as compensation, starting on June 1, 1980. It also awarded claimant damages for penalties and attorney’s fees. From this judgment, the defendants appealed, arguing that claimant was not totally and permanently disabled, and that the trial court incorrectly set the date from which benefits were to run. Also, they seek a reversal in the court’s ruling as to penalties and attorney’s fees. Claimant has answered the appeal, seeking an increase in both the amount of compensation and attorney’s fees.

CLAIMANT’S DISABILITY

Claimant’s attending physician was Dr. E.C. Simonton, an expert in the field of orthopedics. Dr. Simonton felt that claimant was having a standard recovery from the operation and found no objective signs to support his claims of severe pain. In addition, he felt that claimant could return to any type of work which did not require squatting, climbing, or constant standing or walking.

Claimant was also examined by Dr. Joseph A. Thomas, a specialist in family practice with considerable experience in orthopedic and traumatic medicine. His opinion differed from Dr. Simonton’s. Dr. Thomas did see objective signs of pain in that he found a serious lessening of the muscle mass of the left hip. He found claimant to have a 65% disability of the left hip and 25% disability of the body as a whole. Dr. Thomas saw little evidence of any chance of claimant’s condition improving with the passage of time and felt claimant’s only opportunity for future employment would be some type of sedentary activity.

Both claimant and his wife testified as to the severe pain he was suffering. Both stated that claimant’s condition worsened after a day’s work, even to the point where he could not sleep at night. The couple also stated that the only reason claimant returned to work was out of economic necessity.

The couple’s testimony as to pain was supported by claimant’s co-worker, Robert Douglass Swindoll. Swindoll testified that both he and claimant were required to stand up in the cab of the machinery for long periods of time in order to operate them properly. Claimant could not operate the machine for more than one hour at a time without having to stop because of the severe pain caused by the excessive standing. The constant shaking of the machinery also caused claimant some difficulty. Finally, Swindoll stated that he often saw the pain manifest itself through the look on claimant’s face.

After considering all the evidence, we find the claimant to be in substantial pain. Substantial pain cases are to be analyzed within the framework of the odd lot doctrine. Lattin v. HICA Corporation, 395 So.2d 690 (La.1981).

Under the Louisiana jurisprudence, a worker is considered totally disabled if his injury makes him an “odd lot” in the labor market, that is, one capable of obtaining employment periodically, but one whose services are so limited in quality, dependability, or quantity that a reasonably stable market for his services does not exist. Lattin v. HICA Corporation, supra. If the claimant can prove that his physical impairment, mental capacity, education, training, age, availability of work in his area, and any other relevant factor, has placed him at a substantial disadvantage in the labor market, he has made out a prima facie case for classification in the odd lot category. After claimant has made out his case, the onus is on the employer or insurer to show that some form of gainful occupation is regularly and continuously available to the employee within reasonable proximity to the employee’s residence. Oster v. Wetzel Printing, Inc., 390 So.2d 1318 (La.1980).

The record shows that claimant’s only job skill is limited to heavy equipment operation. He is a 54-year-old illiterate. His IQ is in the bottom 2% of the nation and he has little education or job training. Because we find that claimant cannot do the only work that he is qualified to do (namely, heavy equipment operation) without suffering from substantial pain, and considering the other factors which severely limit his ability to compete in the competitive labor market, we find the trial court was correct in finding Ernest Procell to be totally and permanently disabled.

COMPENSATION

The first question to be answered regarding the trial court’s compensation award concerns the proper date from which benefits are to run. The trial court awarded claimant compensation benefits from the date of the accident, June 1, 1980. Defendants argue that claimant was not suffering in substantial pain for months after the accident, and therefore, he did not become totally disabled until he could not work absent substantial pain. We agree.

Claimant’s own testimony showed that he suffered only minor pain after the accident and that the pain did not prevent him from working. As the condition of the claimant’s hip became more severe, so did the degree of pain. Finally, claimant could stand it no longer, ceased working, and decided to seek medical help on March 1, 1981.

It is well settled that compensation does not begin until the pain resulting from the accident becomes disabling. Melder v. Century Telephone Enterprises, Inc., 413 So.2d 1325 (La.App. 3 Cir.1982). We find that claimant first suffered from substantial pain on the date he ceased working, and thus became totally disabled under the odd lot doctrine on that date. We therefore amend the judgment so as to award benefits starting on March 1, 1981.

The next question to be decided is the proper date upon which claimant’s compensation rate is to be calculated. The trial court’s award of $148 per week was based on the maximum compensation rate available at the time of the accident, June 1, 1980. Claimant argues that the trial court erred in not basing the compensation rate on the maximum rate available at the time of claimant’s disability, March 1, 1981. We disagree.

It is undisputed that claimant’s wages were such as to entitle him to the statutory maximum provided in LSA-R.S. 23:1202. This section specifies that the maximum weekly compensation shall be 66⅝% of the “average weekly wage paid in all employment subject to Louisiana Employment Security Law”. It further provides in paragraph B that:

“B. For the purposes of this Chapter, the average weekly wage in all employment subject to the Louisiana Employment Security Law shall be determined by the administrator of the office of employment security on or before August 1 of each year as of the quarter ending on the immediately preceding March 31 of each year. The average weekly wage so determined shall be applicable for the full period during which compensation is payable when the date of occurrence of injury falls within the twelve-month period commencing September 1 following the determination.” (emphasis ours).

This provision clearly refers to the date of occurrence of injury for determination of the rate of compensation. In view of the clear language of the statute, we cannot interpret this to mean that payments are to be based on the date of disability. Wheat v. Ford, Bacon and Davis Construction Corp., 424 So.2d 293 (La.App. 1 Cir.1982), writ denied, 429 So.2d 158 (La.1983); Harris v. Louisiana Paving Company, Inc., 427 So.2d 1352 (La.App. 2 Cir.1983). See also: Bonnette v. Travelers Ins. Co., 367 So.2d 1261 (La.App. 3 Cir.1979); Garcia-Lopez v. Central Air, Inc., 410 So.2d 253 (La.App. 4 Cir.1981). The date of the accident and the accompanying injury was June 1, 1980, and the trial court was correct in basing the amount of compensation on the maximum compensation rate available at that time.

PENALTIES AND ATTORNEY’S FEES

The final issue to be decided is whether Wausau acted arbitrarily and capriciously in discontinuing compensation payments to claimant. The trial court found that they were, and awarded penalties and attorney’s fees under LSA-R.S. 23:1201.2.

An employer’s conduct in discontinuing worker’s payments must be judged on the facts as they appear at the time payments were discontinued. DeJean v. B.F. Trappey’s Sons, Inc., 285 So.2d 297 (La.App. 3 Cir.1973).

At the time Wausau discontinued payments, the only medical evidence in their possession was Dr. Simonton’s report, which indicated that claimant could return to work and that he saw no objective signs to substantiate claimant’s claim of substantial pain. Dr. Thomas’ opinions were not available to Wausau because his deposition was not taken until a few days before trial. In addition, we have a case where claimant had actually returned to work. Claimant’s supervisor, who spoke with Wausau, stated that the claimant had made no indications to them that he was in severe pain, was performing satisfactorily, and had missed little or no work.

Because of the report of Dr. Si-monton and the fact that claimant had returned to work, a genuine dispute existed as to whether claimant was actually totally and permanently disabled. Kirkley v. DSI Transports, Inc., 416 So.2d 584 (La.App. 1 Cir.1982). We find the trial court’s award of penalties and attorney’s fees to be manifestly erroneous.

For the aforementioned reasons, the judgment of the trial court awarding claimant $148 per week for total and permanent disability is affirmed. This judgment is amended, however, so that benefits commence from March 1, 1981. The judgment of the trial court awarding statutory penalties and attorney’s fees is hereby reversed. All costs of this appeal shall be divided equally between appellant and appellee.

AFFIRMED IN PART, AMENDED, AND REVERSED IN PART.

      . The exact date of the accident is unknown, but for all practical purposes, June 1, 1980 will be considered as the accident date.

      . CETA is a jobs program sponsored by the Federal Government.

      . LSA-R.S. 23:1221 provides:
      "Compensation shall be paid under this Chapter in accordance with the following schedule of payments:

      "(3) For injury producing partial disability ..., sixty-six and two-thirds per centum of the difference between the wages the employee was earning at the time of the injury and any lesser wages which the injured employee actually earns in any week thereafter in any gainful occupation for wages,"


author: STOKER, Judge.

text:
    Jack PIIRAINEN, Jr., Plaintiff-Appellant, v. CITY OF LAKE CHARLES, INC., Defendant-Appellee.
    No. 83-671.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Writ Denied Sept. 14, 1984.

      Russell T. Tritico, Lake Charles, for plaintiff-appellant.
    Louis B. Guidry, Lake Charles, for defendant-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   STOKER, Judge.

Jack Piirainen, Jr., a former police officer of the Lake Charles Police Department, appeals his dismissal from that department. The dismissal was upheld by the local Civil Service Board and the District Court. We affirm.

FACTS

On February 8, 1982, Mr. Piirainen became involved in a fight at a bar in Lake Charles. He was off duty at the time and had consumed four to six beers. The fight broke out in the upstairs part of the bar and apparently involved ten to twenty patrons and bar security. Mr. Piirainen headed up the stairs to help break up the fight and, according to his testimony, was grabbed by Boyd Miles who began to hit him. There are conflicting accounts of the fight and Mr. Piirainen’s involvement in it. Some witnesses testified that Mr. Piirainen punched Mr. Miles in the face on the stairs.

Uniformed officers finally arrived on the scene and began to make arrests. Two or three officers were struggling with Boyd Miles, trying to handcuff him and place him in the patrol car. Mr. Piirainen approached the group and said, “That’s the m_ f_ that hit me in the mouth. Make sure he goes to jail.” Mr. Piirainen claims that the officers were still wrestling with Mr. Miles and he tried to help. The officers on the scene claim that Mr. Miles had calmed down until Mr. Piirainen approached and made his comment. Lt. Johnson ordered Mr. Piirainen away, and the arrests were completed. According to the police officers present, Mr. Piirainen’s actions aggravated the situation, almost causing the brawl to begin again.

The letter of termination signed by the Mayor of Lake Charles details the events of February 8, and quotes numerous regulations alleged to have been violated by Mr. Piirainen. We note that Mr. Piirainen admits that he had been drinking, that he became involved in the brawl without identifying himself as a police officer, and that he made the comment quoted above which was directed at Boyd Miles. The letter of termination has a postscript which reads, “In imposing this disciplinary action I’ve taken into consideration prior disciplinary action taken against you.”

The hearing before the Civil Service Board was first scheduled for July 15, 1982, but was continued until September 16, 1982, at which time Mr. Piirainen filed an exception to the lack of specificity as to the prior disciplinary actions mentioned in the postscript. At some point before the hearing in September, the mayor sent a letter to the board which purportedly gave the specific prior disciplinary actions referred to in the postscript. At the hearing, counsel for Mr. Piirainen successfully objected to the board’s consideration of this letter, and the board proceeded hearing testimony only in relation to the events of February 8, 1982. The board specifically found that Mr. Piirainen’s actions on February 8, 1982 justified the termination.

In support of his claim that the disciplinary action was not taken in good faith for cause, Mr. Piirainen makes the following arguments:

1. The letter of termination lacked specificity in regard to the prior disciplinary actions considered by the mayor in his decision.
2. Mr. Piirainen should have been allowed access to personnel records of other officers to demonstrate an inconsistent pattern of punishment and lack of good faith on the part of the mayor.
3. The punishment imposed was unreasonable.
4. The city prosecutor should have been questioned under oath as to why those persons arrested on February 8, 1982, had not yet gone to trial.

We note at the outset that our review is limited to a determination as to whether the board acted in good faith for cause. LSA-R.S. 33:2501. The board’s fact-findings will not be reversed unless they are clearly wrong.

SPECIFICATION OF CHARGES

Mr. Piirainen’s complaints on the matter of specificity are directed solely at the postscript to the letter of termination which refers to prior disciplinary action. We agree with the finding of the district court that this argument must fall because it is clear that the board did not consider any prior disciplinary action against Mr. Piirainen, but upheld the action based solely on the events of February 8,1982. Even though the board was aware that there had been prior disciplinary action against Mr. Piirainen, there is no evidence that such action was considered by the board in reaching its decision. See Timmons v. Municipal Fire and Police Civil Service Board of the City of Bogalusa, 395 So.2d 1372 (La.App. 1st Cir.1981), writ denied 401 So.2d 358 (La.1981).

We also agree with the district court in its statement that the board could have properly allowed the mayor to supplement his original letter of termination to comply with the requirement that all charges be specific. See Powell v. City of Winnfield Fire and Police Civil Service Board, 370 So.2d 109 (La.App. 2d Cir.1979). However, counsel for appellant successfully objected to the supplementation, and he cannot now argue the specificity of matters which were clearly not considered by the board.

ACCESS TO PERSONNEL RECORDS

Mr. Piirainen sought and was denied access to the personnel records of other police officers which he claims would show that his termination was the result of bias and a lack of good faith. He maintains that this action was based not only on the events of February 8, but on other unspecified incidents, and he claims that the requested personnel records would show the punishment he received was inconsistent with punishment dealt other officers. As previously stated, we are convinced that the board considered only the February 8 incident in its determination that Mr. Piirainen’s discharge was justified.

Under LSA-Const. Art. 10, sec. 8, disciplinary action can be changed only if sufficient cause for the action is not shown or if the employee has been discriminated against on the basis of his political or religious beliefs, sex, or race. Apparently, Mr. Piirainen sought the personnel records in order to show he had been discriminated against. The employee has the burden of proof to show that he has been discriminated against on any of the above bases. Mr. Piirainen has made no specific allegation as to the basis of his discrimination, but has made only a general claim. Since he has not alleged a basis for the discrimination, we can see no reason to allow him access to other personnel records. A demonstration that other officers received different degrees of discipline has no bearing on whether action taken against Mr. Piirainen was in good faith for cause.

REASONABLENESS OF PUNISHMENT

Although he does not concede that the action taken was not based in part on prior disciplinary action, Mr. Piirainen argues that dismissal is too severe a penalty based solely on his actions on February 8, 1982. The board and the district court found that the February 8 incident alone justified dismissal and we agree.

The specific actions which form the basis of the dismissal are Mr. Piirainen’s involvement in the brawl without identifying himself as a police officer, his use of profane language toward a member of the public, his use of physical force, his aggravation of an explosive situation, and his purported attempt to conduct police activities while drinking. Apparently the board found these allegations against Mr. Piirainen to be true and, absent manifest error, these findings will not be reversed on appeal. Department of Public Safety, Office of State Police v. Rigby, 401 So.2d 1017 (La.App. 1st Cir.1981), writ denied 406 So.2d 626 (La.1981). We find no manifest error in the fact-findings.

An individual may be subjected to disciplinary action such as dismissal if the conduct complained of impairs the efficiency of the public service and bears a real and substantial relation to efficient and orderly operation of the public service in which the employee is engaged. Department of Public Safety, Office of State Police v. Rigby, supra. Mr. Piirainen’s actions described above clearly meet the standard required for dismissal. The uniformed officers were hampered in their efforts to quell the disturbance and carry out the arrests, and Mr. Piirainen’s behavior reflected badly on the entire police department. The dismissal is not excessive under the circumstances.

QUESTIONING OF CITY PROSECUTOR

During the hearing, counsel for Mr. Piir-ainen attempted to question the city prosecutor under oath about the charges brought against the five bar patrons who were arrested after the brawl which brought about this disciplinary action. At the time of the hearing, the charges had been pending for over seven months, but the individuals had not yet been brought to trial. The board did not allow questioning of the city prosecutor, but did allow him to make a statement to the effect that the charges were still pending and he had not yet made a determination as to when he would go to trial with them. Counsel for Mr. Piirainen stated he was satisfied with the city prosecutor’s statement.

As with the personnel records previously discussed, evidence regarding these prosecutions was sought in order to show discrimination. For the same reasons set out above, we see no reason to consider such evidence since there has been no specific allegation of discrimination. In any event, the mayor was questioned extensively regarding his relationship with the young men who were arrested. While it was established that one of the young men, Walter Seacock, is a personal friend of the mayor’s son, that fact alone does not indicate any kind of discrimination. Nor does the prosecution, or lack of it, of those involved in the fight have any bearing on Mr. Piirainen’s case.

CONCLUSION

Based on the facts presented to the board and accepted by it, we agree with Mr. Piirainen’s dismissal. The action was taken in good faith for cause.

The judgment of the district court is affirmed. Costs of this appeal are assessed to plaintiff-appellant.

AFFIRMED.


author: CUTRER, Judge.

text:
    Dallas J. THIBODEAUX, Plaintiff-Appellee, v. AMERICAN LAND & EXPLORATION, INC., et al., Defendants-Appellants.
    No. 83-681.
    Court of Appeal of Louisiana, Third Circuit.
    May 16, 1984.
    Rehearing Denied June 14, 1984.
    Aaron, Aaron & Chambers, Noble M. Chambers, Jr., Crowley, for defendants-appellants.
    Privat & Regan, Kenneth 0. Privat, Crowley, for plaintiff-appellee.
    Before CUTRER, STOKER and KNOLL, JJ.
   CUTRER, Judge.

This appeal emanates from a trial court judgment rescinding a royalty deed con-fected by Dallas J. Thibodeaux, vendor, and American Land & Exploration, Inc., vendee, (American Land).. Thibodeaux filed suit to rescind a royalty deed purporting to transfer one-half of his royalty interest in certain lands. Thibodeaux seeks rescission on the ground of fraud or error. From a trial court judgment annulling the royalty deed American Land appealed. We reverse.

FACTS

The facts are generally undisputed. We shall detail Thibodeaux’s dealings with his royalty and mineral interests in the subject property to show that Thibodeaux had negotiated several transactions which included transfers of fractional interests and “royalty acre” interests. These activities reflect that Thibodeaux had at least a working knowledge of the term “royalty acre” and the use of fractional interests in transferring his royalty or mineral interests.

Thibodeaux is the owner of an undivided one-half interest in three tracts of land, totaling 2972 acres, located in Acadia Parish. His children own the other undivided share. This ownership structure appears to be the result of the earlier death of plaintiff’s wife and the classification of the three tracts as having been community property.

In 1980, Thibodeaux executed a mineral lease of the land to Stone Oil Corporation (Stone Oil), reserving a one-fifth royalty interest in the oil, gas and other minerals. On January 29, 1982, Stone Oil and Thibo-deaux executed a second mineral lease, assuming that the first lease had expired. This second lease also reserved one-fifth of the minerals as royalty for the owner/lessor. On that same day, Thibodeaux signed a royalty deed conveying to Stone Oil %o of the minerals over the three tracts of land. Plaintiff was paid $18,000.00 by Stone Oil for this conveyance.

After Thibodeaux filed the suit in question, Stone Oil intervened to protect its royalty interest which it had purchased from Thibodeaux. A compromise settlement was reached in December 1982 between Stone Oil and Thibodeaux and Stone Oil was dismissed from this suit. The compromise settlement set aside the second lease and left the 1980 lease in effect.

It also provided that Stone Oil would be given an option to purchase one-half of the mineral royalty interest owned by Thibo-deaux for a consideration of $2,000.00 per royalty acre in the event that Thibodeaux would prevail in this suit against American Land.

In early January 1982, Thibodeaux was approached by a man named Lambert from Lafayette who sought to purchase a portion of Thibodeaux’s royalty interest at the rate of $700.00 per royalty acre. When Thibodeaux rejected that offer, Lambert promptly raised his offer to $1,500.00 per royalty acre. Told that this, too, was inadequate, Lambert left and did not contact Thibodeaux again.

In late February 1982, Timothy Supple (the president and sole stockholder of American Land) telephoned Thibodeaux and inquired whether he could purchase some of Thibodeaux’s royalty interests. According to Supple, his first offer was rejected by Thibodeaux. Supple testified that he agreed to pay Thibodeaux the same rate agreed to by Stone Oil. Supple stated that Thibodeaux told him that the price was $3,000.00 per royalty acre.

Supple testified that Thibodeaux agreed to sell him one-fourth of his interest (5.9 royalty acres) for $3,000.00 per royalty acre, or a total of $18,000.00. Supple also asked Thibodeaux to inquire of his children if they would sell that same amount. Approximately one week later, Supple again called Thibodeaux and was told that the latter’s children were unwilling to sell any more of their interests. Supple then asked Thibodeaux if he would be willing to sell another one-fourth of his share. Supple agreed to pay Thibodeaux $36,000.00 for the two one-fourth interests, equalling one-half of Thibodeaux’s holdings. Supple stated that the $36,000.00 figure was reached by multiplying the royalty acres, approximately twelve, by the rate of $3,000.00. Supple stated that Thibodeaux agreed to sell one-half of his one-half interest for the $36,000.00, but the terminology they primarily used in their conversations referred to royalty acres because Thibodeaux preferred to deal in this term. Supple agreed to meet Thibodeaux at his home in Rayne on Saturday, March 6, 1982, approximately three days after their conversation.

Supple accompanied by John K. Harrison, II, a landman who was to serve as a witness for the transaction, drove to Thibo-deaux’s home on March 6th to complete their sale. Prior to leaving his office for Rayne, Supple prepared both the royalty deed and the draft to Thibodeaux for $36,-000.00. Upon arrival, Supple was told by Thibodeaux that an individual from New Orleans had made an offer of $4,500.00 per royalty acre for Thibodeaux’s royalty interest.

Considering that Supple’s firm offer was more secure than the one from New Orleans, Thibodeaux decided to accept American Land’s offer. This decision was made after Supple had called his co-investor in New Orleans in an attempt to determine the identity of the other bidder and to see if Supple’s co-investor would be willing to pay $4,500.00 per royalty acre. The unknown New Orleans bidder was tentatively identified as being Barry Doll. Supple told Thibodeaux that they could not match the offer of $4,500.00 per royalty acre for one-half of Thibodeaux’s interest on the entire 29V2 acres, but they might consider matching it for Thibodeaux’s royal interest in the 20 acre tract. Thibodeaux then agreed to just go ahead with their original deed as planned rather than to depend upon the uncertainty of the New Orleans offer.

Shortly thereafter, the parties signed the royalty deed which had been earlier prepared by Supple. Thibodeaux was given a ten day sight draft in the amount of $36,-000.00.' No one else was present but Harrison who acted as a witness. It is undisputed that the deed was read to Thibo-deaux by Supple. The transferring language of that deed is as follows:

“⅜ $ ONE-HALF (½) of the royalty of the oil, gas and other minerals, in and under and that may be produced from the following described lands situated in the Parish of Acadia, Louisiana:
[Description of three tracts of land-29V2 acres.]
“IT IS UNDERSTOOD between the parties hereto that this sale is for ONE-HALF (½) of all the royalties owned, now or formerly, by DALLAS J. THI-BODEAUX, but in no event shall the royalties conveyed herein equal less that 11.8 royalties acres.” (Emphasis added.)

Supple testified that the agreement was for one-half of Thibodeaux’s one-half (one-fourth of the total) and that Thibodeaux stated that he did not need to talk to anyone prior to signing the deed. Further, Supple stated that they both knew what they were trading. Thibodeaux testified that he did not intend to transfer one-half of his interest but only intended to transfer one-fourth of same.

On March 7th, the day after Thibodeaux executed the royalty deed to American Land, he spoke with a Mr. Whitewing from Whitewing Oil Properties, Inc. (Whitewing) concerning the sale of royalty interests. As a result of this conversation, a royalty deed between Thibodeaux and Whitewing was executed and filed on March 8th (after American Land’s deed) covering one-half of Thibodeaux’s royalty interests over the same three tracts of land for a consideration of $80,000.00.

On March 9, 1982, Thibodeaux filed suit seeking a rescission of the royalty sale to American Land.

ISSUE

The issue on appeal is whether the royalty deed was invalid because of fraud or error.

ALLEGATION OF FRAUD

Thibodeaux alleges that a fraud was perpetrated upon him by American Land and, in support of this, he cites Placid Oil Co. v. Taylor, 345 So.2d 254 (La.App. 3rd Cir.1977), writ den., 347 So.2d 261 (La.1977). The court in Placid nullified the mineral interest conveyance which was the result of a fraudulent inducement by a niece of her elderly, uneducated aunt who had failing eyesight.

In this case, the trial judge could find no fraudulent actions by Supple; nor do we. Fraud, being a grave allegation, requires a strict standard of proof; it must be proven by evidence which is strong and convincing. Placid, supra. The record does not support an allegation of fraud by Supple.

ERROR OF FACT

The substance of the oral reasons, given by the trial court, for rescinding the contract was that Thibodeaux thought he was transferring one-fourth of his royalty interest instead of one-half. The trial court came to this conclusion after finding that Thibodeaux could not read and did not understand the transfer provisions of the contract. The trial court felt that these factors vitiated the required consent to con-fect the agreement. We disagree.

Our Supreme Court has spoken to the issue of those who seek to rescind a contract, which they have signed, on the basis that they could not read the contract. Tweedel v. Brasseaux, 433 So.2d 133 (La.1983), states:

[Signatures to obligations are not mere ornaments.’ Boullt v. Sarpy, 30 La.Ann. 494 at 495. Additionally, the courts of our state have long held that [iff a party can read, it behooves him to examine an instrument before signing it; and if he cannot read, it behooves him to have the instrument read to him and listen attentatively whilst this is being done.’ Snell v. Union Sawmill Company, 259 La. 604 at 608, 105 So. 728 at 730 (1925). Bagneris v. Oddo, 2 Pelt. 278 (La.App.1919) held:
‘The presumption is that parties are aware of the contents of writings to which they have affixed their signatures ... The burden of proof is upon them to establish with reasonable certainty that they have been deceived. ’ 2 Pelt at 285. ”

Thibodeaux has clearly not met his burden of proving that he was unaware of the contents of the contract he signed with American land. Thibodeaux admitted that the deed was read to him by Supple. Supple, additionally, testified that he asked Thibodeaux if he needed anyone else present, but Thibodeaux indicated he did not. Thibodeaux did not rebut this statement. Thibodeaux testified that, although he could not read, he could discern numbers.

The unequivocal language of the deed transfers from Thibodeaux to American Land “ONE-HALF (⅛) of the royalty .... ” After describing the lands involved, the deed further states that the sale is for “ONE-HALF (½) of all the royalties owned, now or formerly, by DALLAS J. THIBODEAUX, but in no event shall the royalties conveyed herein equal less than 11.8 royalty acres.”

Supple testified that the parties knew what they were dealing with and that Thi-bodeaux agreed to sell one-half of his share. Harrison corroborated this testimony. Both Harrison and Supple stated that the deal was primarily based on the royalty acre number 11.8 and that Thibodeaux was paid $3,000.00 per royalty acre, which was rounded off at $36,000.00. Thibodeaux sought to refute this by claiming that he did not know what a royalty acre was then or on the day of trial.

In examining the record we find that, when Thibodeaux was asked if he knew what a royalty acre was, his answer was that he wasn’t “too familiar” with it. Regardless of whether he knew how to compute royalty acreage, Thibodeaux had often dealt with the concept of royalty acres. By his own testimony, Thibodeaux admitted having dealt in January 1982, with Lambert regarding the sale of his royalty interests on the basis of royalty acres. Thibodeaux also admits having sold to Stone Oil and to Whitewing on the basis of royalty acreage. Thibodeaux stated that his deal with Stone Oil of $2,000.00 per royalty acre was “fair enough.” It is only as to his dealings with Supple that Thibodeaux denies having discussed royalty acres. The royalty deed signed by Thibodeaux unequivocally transfers one-half of his royalty interests to American Land. The fraction of one-half is twice mentioned in the document, and the intention to transfer that amount is further reiterated by the reference to 11.8 royalty acres as being the amount intended to be conveyed. The 11.8 figure was also used in the royalty deed signed the next day by Thibodeaux wherein he admits to having transferred one-half of his royalty interests to Whitewing.

In each of the transactions that we have reiterated Thibodeaux dealt in royalty acres. His assertion of ignorance can be given little credence. We conclude that the trial court was clearly wrong in finding that Thibodeaux misunderstood the terms of the royalty deed he executed.

We must further observe that, even if Thibodeaux had misunderstood the terms of the royalty deed, he cannot prevail in this rescission action under the law of unilateral error.

In Nugent v. Stanley, 336 So.2d 1058 (La.App. 3rd Cir.1976), this court held as follows:

“It is well settled in our law that consent to a contract may be vitiated by an error of fact and that without consent there is no contract. LSA-R. C.C. Articles 1819, 1820, 1923.
“Article 1821 states ‘That is called error of fact, which proceeds either from ignorance of that which really exists, or from a mistaken belief in the existence of that which has none. Article 1826 provides in effect that error of fact as to the principal cause of the agreement does not invalidate a contract unless the other party knew or should have known it was the principal cause.
“The jurisprudence under these code articles establishes that a contract may be invalidated for unilateral error as to a fact which was a principal cause for making the contract, where the other party knew or should have known it was the principal cause. Savoie v. Bills, 317 So.2d 249 (La.App. 3rd Cir.1975).

As we consider the facts of this case, the error alleged by Thibodeaux was unilateral. To prevail in this action, Thibo-deaux must show that Supple either knew or had reason to know that Thibodeaux did not understand that he was transferring one-half instead of one-fourth of his royalty interests.

The trial court, in its oral reasons, stated as follows:

“[Ifm convinced equally Mr. Supple was going out there thinking he was buying, you know, one-half of all of this man’s interest.”

The record fully supports this conclusion. Supple’s intention was to purchase one-half of Thibodeaux’s royalty. He had no reason to believe that Thibodeaux misunderstood the terms of the transfer.

Having failed to show that Supple had knowledge or had to reason to know of an alleged error, the contract cannot be set aside on the ground of the lack of consent.

We, therefore, find that the trial court was clearly wrong in rescinding the deed on the ground of error.

For these reasons, the judgment of the trial court is reversed, set aside and Thibo-deaux’s suit is dismissed. All costs of the trial court, as well as the costs of this appeal, shall be paid by plaintiff-appellee, Dallas J. Thibodeaux.

REVERSED AND RENDERED.

      . Also made a defendant was Timothy Supple, the president and sole stockholder in American Land. However, judgment was only rendered against American Land, which was also cast with costs of the suit. Accordingly, we only address the singular defendant, American Land.

      . The first tract contains three acres; the second contains six and one-half acres and the third tract contains twenty acres.

      . Supple testified that the term "royalty acre" is a commonly used industry term. He also stated that production distribution is based on the ownership of royalty acres which are derived by converting ordinary acreage into royalty acreage on the basis of the standard one-eighth (⅛) royalty, which was the fraction ordinarily reserved by owners leasing their land for oil production. Thibodeaux had, however, reserved a one-fifth royalty interest in the production under his lease with Stone Oil, thus creating more royalty acreage on the land than would have existed under a one-eighth reservation.
      Harrison and Supple both calculated that the 29.5 acres owned by Thibodeaux and his children contained 47.2 royalty acres. In his deed to American Land, Thibodeaux transferred one-half of his one-half interest, or one-fourth of the total (or 11.8) royalty acres.

      . Thibodeaux did not negotiate the draft.


author: ALFORD, Judge.

text:
    FIRST HOMESTEAD FEDERAL SAVINGS AND LOAN ASSN. v. Julius A. BOUDREAUX and Beverly Falgout Boudreaux.
    No. 83 CA 0333.
    Court of Appeal of Louisiana, First Circuit.
    May 30, 1984.
    Robert S. Herman, New Orleans, for plaintiff and appellant.
    Joseph A. Reilly, Jr., Houma, for defendants and appellees.
    Before LOTTINGER, EDWARDS and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment of the Thirty-Second Judicial District Court, Parish of Terrebonne, maintaining appellees’ dilatory exception of prematurity. Appellant, First Homestead Federal Savings & Loan Association, filed suit alleging that it was the payee and holder for value of a past due and unpaid promissory note executed by appellees, Mr. and Mrs. Julius A. Boudreaux. In their exception, appellees urged that appellant was not entitled to judicial enforcement of the note due to the fact that it was given in conjunction with a home improvement contract which required arbitration of any disputes arising out of the contract. Additionally, appellees alleged that a dispute had arisen over whether the contractor had satisfactorily completed the contract, and thus, arbitration was called for under the contract.

Appellees entered into the home improvement contract with L.A.S. Enterprises. The contract provided that L.A.S. would not only sell the materials to be used but would also install them. In order to facilitate payment, it was agreed that L.A.S. would arrange the necessary financing and execute the necessary papers at appellees’ cost. In addition, the contract stated:

“Contractor and Owner agree that if a dispute arises out of this contract both parties will first submit the dispute to the Arbitration Committee of the Remo-delers Division of the Home Builders Association of Greater New Orleans and each will pay a fee of $25.00 to defray costs of inspection and arbitration.”

Also noted on the face of the contract in bold face type was the notice required on all consumer credit transactions by 16 C.F.R. 433. This notice reads:

“NOTICE: ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR.”

L.A.S. and appellees executed the contract on May 4, 1981. On that same day, appellees executed a promissory note made out to the Order of Bearer. There was a notation on the note that L.A.S. was the seller (creditor) with the further notation that appellant was financing the transaction and would also become a creditor. L.A.S. assigned the note to appellant on June 29, 1981. This note also contained the required 16 C.F.R. 433 notice found on the home improvement contract.

It is apparent from the inclusion of the 16 C.F.R. 433 notice in both the contract and the note that appellant is not a holder in due course of appellees’ promissory note. Jefferson Bank & Trust Co. v. Stamatiou, 384 So.2d 388 (La.1980). LSA R.S. 10:3-306(b) provides that one not a holder in due course takes a note subject to “all defenses of any party which would be available in an action on a simple contract.” As a mere holder therefore, appellant is subject to any defense appellees might raise against L.A.S. Enterprises.

As noted in Cook v. AAA Worldwide Travel Agency, 360 So.2d 839, 841 (La.1978):

The defense that plaintiffs are not entitled to judicial relief because of a valid agreement to submit their claims to arbitration may be raised, as it was here, by the dilatory exception pleading prematurity. La.C.C.P. art. 926(1), which is determined on the basis of the showing made at the in-limine trial of the exception, including evidence introduced at the trial thereof. La.C.C.P. arts. 929, 930. When the issue is raised by the exception pleading prematurity, the defendant pleading the exception has the burden of showing the existence of a valid contract to arbitrate, by reason of which the judicial action is premature. Cf. Steeg v. Lawyers Title Insurance Corporation, 329 So.2d 719 (La.1976).

Appellees have met their burden of showing the existence of a valid contract to arbitrate.

Appellant maintains that the arbitration association designated in the contract is no longer in existence. We are unable to consider this assertion due to the fact that appellant has not introduced any evidence in support of this allegation. Having found that appellee has proven that a valid agreement to arbitrate was entered into, we affirm the trial judge’s decision to maintain the dilatory exception to prematurity.

AFFIRMED.