text:
    Sandra Zahn ORECK v. The FRENCH EIGHTH, et al.
    No. 84-C-2023.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Oreck, Sandra Zahn, applying for writ of certiorari and/or review, Court of Appeal, Fourth Circuit, No. CA-1384; Parish of Orleans, Civil District Court, Div. “C”, No. 8212087.

Prior report: 457 So.2d 35.

Denied.

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


source: Caselaw Access Project

license: Public Domain

text:
    ST. PAUL FIRE & MARINE INSURANCE COMPANY v. The FRENCH EIGHTH, T.C. Farrell, Jr. and Continental Insurance Company.
    No. 84-C-2024.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   "In re St. Paul Fire & Marine Ins. Co., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-1384; Parish of Orleans, Civil District Court, Div. “C”, No. 82-12087.

Prior report: 457 So.2d 35.

Denied.

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


text:
    AURORA COMMUNITY ASSOCIATION, INC., et al. v. SOUTHWOOD PATIO HOMES, et al.
    No. 84-C-2025.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Southwood Patio Homes et al., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-1760; Parish of Orleans, Civil District Court, Div. “E”, No. 82-14191.

Prior report: 457 So.2d 86.

Denied.

BLANCHE, J., would grant the writ.


text:
    Kenneth JOHNSON v. Gregory DIXON and Louisiana Industrial Coatings.
    No. 84-C-2028.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Louisiana Industrial Coatings, applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-2022; Parish of Plaquemines, 25th Judicial District Court, Div. “B”, No. 21-123.

Prior report: 457 So.2d 79.

Denied.


author: MARCUS, J.,

text:
    Joyce ANDERSON v. Wilmer HINRICHS, Sophia P. Gerard and Norton Adrian Gerard.
    No. 84-C-2030.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Hinrichs, Wilmer et al., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. CA-1648; Parish of Orleans, Civil District Court, Div. “C”, No. 80-11818.

Prior report: 457 So.2d 225.

Denied.

MARCUS, J.,

would grant the writ.


text:
    Deila Mae Warren HOLCOMB and Gladys Jean Holcomb McAllister v. Catherine Sue Hickingbottom BAKER and Carolyn Hickingbottom Crumpton.
    No. 84-C-2031.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Holcomb, Deila Mae Warren et al., McAllister, Gladys Jean, Holcomb, Gladys Jean, applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16599-CA; Parish of Morehouse, 4th Judicial District Court, Div. “D”, No. 81-453.

Prior report: 459 So.2d 158.

Denied.


text:
    Robert W. MORELAND v. Lamar SMITH.
    No. 84-C-2036.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Smith, Lamar, applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16510-CA; Parish of Webster, 26th Judicial District Court, Div. “D”, No. 42522.

Prior report: 457 So.2d 748.

Denied


text:
    Floyd J. SEPULVADO v. WILLIS-KNIGHTON MEDICAL CENTER, INC., et al.
    No. 84-C-2038.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Willis-Knighton Med. Ctr. et al., XYZ Insurance Co., applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16598-CA; Parish of Caddo, 1st Judicial District Court, Div. “B”, No. 281041.

Prior report: 459 So.2d 152.

Denied.


text:
    STATE ex rel. Lawrence WILLIAMS v. CRIMINAL DISTRICT COURT, PARISH OF ORLEANS.
    No. 84-KH-2040.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Williams, Lawrence, applying for remedial writ, Court of Appeal, Fourth Circuit, No. K-3084; Parish of Orleans, Criminal District Court, Div. “A”, No. 286-431.

Denied.


text:
    Maestri B. DALE v. PEACOCK LOUNGE, INCORPORATED.
    No. 84-C-2041.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Peacock Lounge Inc., applying for supervisory writs, Court of Appeal, Fourth Circuit, No. CA-1567; Parish of Orleans, Civil District Court, Div. “K”, No. 83-9604.

Denied.


text:
    TRANSWORLD FINANCIAL SERVICES CORPORATION v. J. Hugh BRISCOE and Jacqueline Robinson Briscoe.
    No. 84-C-2043.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Briscoe, Jacqueline Robinson, applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16534-CA; Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 291740.

Prior report: 459 So.2d 100.

Denied.


text:
    John P. HARRINGTON, Jr. v. Juanita Keith Beasley OLIVER.
    No. 84-C-2044.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Harrington, John P., Jr., applying for writ of certiorari and/or review, supervisory, Court of Appeal, Second Circuit, No. 16539-CA; Parish of Caddo, 1st Judicial District Court, Div. “G”, No. 274807.

Prior report: 459 So.2d 111.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE ex rel. George R. SPENCER v. STATE of Louisiana.
    No. 84-KH-2048.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Spencer, George R., applying for remedial writ, Parish of Tangipahoa, 21st Judicial District Court, Diy. “D”, No. 45884; Court of Appeal, First Circuit, No. KW 84-1305.

Denied.


text:
    Raynor JUNEAU and Janice Juneau, Individually and on Behalf of Their Minor Child, Rushing Juneau v. The HARTFORD INSURANCE COMPANY, et al.
    No. 84-C-2050.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Juneau, Raynor et al., Juneau, Janice, Juneau, Rushing, applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 83-1048; Parish of Rap-ides, 9th Judicial District Court, Div. “C”, No. 125351.

Prior report: 458 So.2d 1011.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE of Louisiana v. John BURGESS.
    No. 84-KH-2052.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Burgess, John, applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “F”, No. 304445.

Denied.


text:
    STATE of Louisiana In the Interest of Erin Aline BRADLEY.
    No. 84-CK-2056.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Bradley, Aline S., Bradley, Victor E. Jr., applying for writ of certiorari and/or review, Parish of Orleans, Juvenile Court, Div. “A”, No. 225-074; Court of Appeal, Fourth Circuit, No. C-3151.

Denied.

CALOGERO and LEMMON, JJ., to grant.


text:
    Michael Jerry CAMPBELL v. LUKE CONSTRUCTION COMPANY.
    No. 84-C-1589.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Campbell, Michael Jerry, applying for writ of certiorari to the Court of Appeal, Third Circuit, No. 83-831; Parish of Vermilion, 15th Judicial District Court, Div. “D”, No. 80-42144.

Prior report: 453 So.2d 332.

Granted.


text:
    STATE of Louisiana ex rel. Joseph WOODS v. STATE of Louisiana.
    No. 83-KH-2444.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Joseph Woods, applying for reconsideration on denied writ of November 16, 1984, 460 So.2d 598, to the Criminal District Court, Parish of Orleans, No. 269-497.

Reconsideration granted. Evidentiary hearing in the district court is ordered concerning relator’s excessiveness of sentence claim.


text:
    Gerard BROTMEYER v. NEW ORLEANS POLICE DEPARTMENT.
    No. 84-CC-2084.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Brotmeyer, Gerard, applying for supervisory writ; to the Court of Appeal, Fourth Circuit, No. C-3058; Parish of Orleans, Civil Service Commission, Div. “ ”, Nos. 2463, 2464.

Denied.


text:
    PARISH OF JEFFERSON v. Alvin C. COPELAND. Herbert RODRIGUE, Burton G. Klein and Mary Borrell v. Alvin C. COPELAND and Popeyes Famous Fried Chicken, Inc.
    No. 84-CC-2108.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Copeland, Alvin C. et al., Copeland, Alvin C. et al., Popeyes Famous Fried Chicken, applying for writ of certiorari and/or review, Parish of Jefferson, 24th Judicial District Court, Div. “K”, Nos. 289-098, 289-142; to the Court of Appeal, Fifth Circuit, No. 84-C-646.

Denied.

WATSON, J., recused.


text:
    The LOUISIANA WEEKLY PUBLISHING CO., INC. and Constant C. Dejoie, Jr., Individually and as President, Publisher and Stockholder v. FIRST NATIONAL BANK OF COMMERCE and Henry B. Dejoie, Individually and as a Stockholder and Renette D. Hall, Individually and as a Purported Representative of a Purported Stockholder, Louise Wilcox and Louise Wilcox.
    No. 84-CD-2112.
    Supreme Court of Louisiana.
    Dec. 14, 1984.
   In re Louisiana Weekly Pub. Co. et al., Dejoie, Constant C. Jr., applying for writ of certiorari and/or review, stay, mandamus; Parish of Orleans, Civil District Court, Div. “L", No. 84-11436; Civil District Court, Div. “J”, No. 84-10568; Civil District Court, Div. “G”, No. 83-18777.

Denied.


text:
    STATE ex rel. Clinton STATON, Jr. v. Sabine PARISH, 11th Judicial District Court.
    No. 84-KH-2065.
    Supreme Court of Louisiana.
    Dec. 18, 1984.
   In re Staton, Clinton Jr., applying for writ of mandamus; Parish of Sabine, 11th Judicial District Court, Div. “B”.

Granted. Application transferred to the district court for its consideration of whether parole revocation proceedings were timely initiated.


text:
    STATE of Louisiana v. Jessie M. HILLS, Jr.
    No. 84-KH-2073.
    Supreme Court of Louisiana.
    Dec. 18, 1984.
   In re Hills, Jessie M. Jr., applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “H”.

Granted. The district court is ordered to act, if it has not already done so, on the motion to withdraw/vacate guilty plea and the motion for appointment of psychiatrist and other special services submitted November 5, 1984.


text:
    STATE of Louisiana v. Kevin WISE.
    No. 84-KH-2136.
    Supreme Court of Louisiana.
    Dec. 19, 1984.
   In re Wise, Kevin, applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “G", No. 298-819.

Denied.


text:
    STATE of Louisiana v. John KRAUSS.
    No. 84-KK-2140.
    Supreme Court of Louisiana.
    Dec. 19, 1984.
   In re Krauss, John, applying for stay, writ of certiorari, prohibition, and mandamus; Parish of Jefferson, 24th Judicial District Court, Div. “N”, No. 84-1948; to the Court of Appeal, Fifth Circuit, No. 84-K-667.

Denied.


text:
    STATE ex rel. Harry O. CRAMER v. Frank BLACKBURN, Warden.
    No. 84-KH-2102.
    Supreme Court of Louisiana.
    Dec. 19, 1984.
   In re Cramer, Harry 0., applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “G”.

Granted. The district court is ordered to act, if it has not already done so, on relator’s application styled writ of error coram nobis submitted August 3, 1984, if that application has been filed.


text:
    Glenn GASTAL, et al., Individually and on Behalf of Their Minor Child v. Archbishop Philip M. HANNAN, Bishop Gerald L. Frey, Vicar General Richard Von Puhl Mouto, Monsignor Harry E. Benefiel, Monsignor H.A. Larroque, the Archdiocese of New Orleans d/b/a the Roman Catholic Church, the Roman Catholic Church for the Diocese of Lafayette, the Roman Catholic Church, St. John Parish, Representing the Communities of Esther and Henry, Vermilion Parish, Louisiana, Certain Underwriters at Lloyd’s of London, Interstate Insurance Company and Father Gilbert Gauthe.
    No. 84-OC-2070.
    Supreme Court of Louisiana.
    Dec. 20, 1984.
   In re Gastal, Glenn et al., Gastal, Faye, applying for alternative writ of mandamus, Court of Appeal, Third Circuit, No. 84-1021; Parish of Vermilion, 15th Judicial District Court, Div. “A”, No. 84-48175.

Denied. Moot.


text:
    STATE ex rel. Leroy JACKSON v. STATE of Louisiana.
    No. 84-KH-2142.
    Supreme Court of Louisiana.
    Dec. 20, 1984.
   In re Jackson, Leroy, applying for remedial writs; Parish of Bossier, 26th Judicial District Court, Div. “D”, No. 57385.

Denied.


text:
    THE MARINER PROJECT v. WILSON HOMES, INC.
    No. 84-CC-2143.
    Supreme Court of Louisiana.
    Dec. 20, 1984.
   In re Mariner’s Village Partners Ltd., applying for supervisory writs; Parish of Jefferson, 24th Judicial District Court, Div. “G”, No. 292-429; to the Court of Appeal, Fifth Circuit, No. 84-C-652.

Denied.


text:
    Beverly Vicknair, Wife of/and Floyd VICKNAIR v. HIBERNIA BUILDING CORP. & United States Fidelity and Guaranty Co.
    No. 84-C-2145.
    Supreme Court of Louisiana.
    Dec. 20, 1984.
   In re Hibernia Building Corp et al., United States Fid/Gty Co., Broadmoor Corporation, applying for supervisory and/or remedial writs; to the Court of Appeal, Fourth Circuit, No. CA-1473; Parish of Orleans, Civil District Court, Div. “A”, No. 77-16405.

Prior report: 459 So.2d 685.

Granted. Rehearing purportedly granted by Court of Appeal on December 14, 1984 is set aside as not having been timely applied for. La.Code Civ.P. art. 2166.


text:
    STATE ex rel. David Eugene TAPLEY v. Honorable L.H. COLTHARP, Judge, 36th Judicial District Court, Parish of Beauregard, State of Louisiana, et al.
    No. 84-KH-2105.
    Supreme Court of Louisiana.
    Dec. 21, 1984.
   In re Tapley, David Eugene, applying for writ of mandamus; Parish of Beauregard, 36th Judicial District Court, Div. “ ”, No. CR-355-81.

Granted. The district court is ordered to act, if it has not already done so, on the petition for writs submitted by relator on October 15, 1984.


text:
    William A. LESTER v. SOUTHERN CASUALTY INSURANCE COMPANY, et al.
    No. 84-C-2037.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Lester, William A., applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 83-997; Parish of Grant, 35th Judicial District Court, Div. “ ”, No. 3315.

Prior report: 458 So.2d 654.

Granted.


text:
    STATE of Louisiana ex rel., Jerome Milton POWELL, Jr. v. Hon. Frank J. SHEA, Judge, Criminal District Court, Section “G”.
    No. 84-KH-1788.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Powell, Jerome Milton Jr., applying for writ of certiorari, writs of mandamus and habeas corpus, Parish of Orleans, Criminal District Court, Div. “G”, No. 262-982.

Granted. The district court is ordered to act if it has not already done so, on the habeas petition submitted by relator about August 5, 1984 if that petition has been filed.


text:
    STATE ex rel. Eddie J. CATES v. Hon. Matthew S. BRANIFF, Judge and Edwin A. Lombard, Clerk of Court, Section B, Parish of Orleans.
    No. 84-KH-1986.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Cates, Eddie J., applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “B”, No. 251-375.

Granted. The trial court is ordered to comply with the October 26, 1984 order of this Court to furnish relator a transcript of his guilty plea.


text:
    STATE ex rel. Johnnie Lee ROGERS v. C. Paul PHELPS, et al.
    No. 84-KH-2049.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Rogers, Johnnie Lee, applying for writ of mandamus; Parish of Pointe Cou-pee, 18th Judicial District Court, Div. “B”, No. 19-509.

Granted. The district court is ordered to act, if it has not already done so, on the post-conviction petition submitted in March, 1983.


text:
    STATE ex rel. Jerome Milton POWELL, Jr. v. Hon. Alvin V. OSER, Judge, Criminal District Court, Sec. J.
    No. 84-KH-2003.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Powell, Jerome Milton Jr., applying for writ of certiorari and/or review, writ of habeas corpus and writ of prohibition, Parish of Orleans, Criminal District Court, Div. “J”.

Motion to Dismiss is Granted. Application dismissed.


text:
    STATE ex rel. Charles Richard PARKER v. Frank BLACKBURN, Warden, Sub Nom. Ross Maggio, Jr., Warden, Louisiana State Penitentiary.
    No. 84-KH-2066.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Parker, Charles Richard, applying for writ of habeas corpus; Parish of St. Tammany, 22nd Judicial District Court, Div. “D”, No. 82930.

Not considered. The application does not comply with this Court’s Rule X § 5(a) nor with the requirements of the Uniform Application for Post Conviction Relief.

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


text:
    STATE ex rel. Charles Edward TATE v. Frank C. BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-2081.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
    Reconsideration Denied Feb. 8, 1985.
   In re Tate, Charles Edward, applying for writ of certiorari and/or review; Parish of East Baton Rouge, 19th Judicial District Court, Div. “G”, No. 11-80-313.

Not considered. The application does not comply with this Court’s Rule X § 5(a) nor with the requirements of the Uniform Application for Post Conviction Relief.

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


text:
    Alex Chalmers HOPE, Jr. v. LOUISIANA STATE BAR ASSOCIATION.
    No. 84-OB-1399.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Alex Chalmers Hope, Jr., applying for reconsideration of denial of application for Admission to the Louisiana State Bar.

Prior report: 456 So.2d 161.

Denied.


text:
    STATE of Louisiana v. John J. LOPERA, Jr.
    No. 84-K-1962.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Lopera, John J. Jr., applying for writ of certiorari, writ of review, stay, prohibition and mandamus to the Court of Appeal, Fifth Circuit, Nos. 84-KA-6, 83-K849; Parish of Jefferson, 24th Judicial District Court, Div. “J”, No. 82-3336.

Stay order recalled. Writ denied.


text:
    STATE of Louisiana v. Brett S. BURGER.
    No. 83-KH-1689.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Brett S. Burger, applying for remedial writ, from Criminal District Court, Parish of Orleans, No. 283-048.

Denied.


text:
    STATE of Louisiana ex rel., Edward OGLETREE v. ORLEANS INDIGENT DEFENDER PROGRAM, Numa V. Bertel, Jr. and Craig Cowart.
    No. 84-KH-1789.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Ogletree, Edward, applying for writ of mandamus, Parish of Orleans, Criminal District Court, Div. “D”, No. 289-752.

Denied.


text:
    Josephine Marie PRICE, et al. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al.
    No. 84-C-1855.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Louisiana Farm Bur. Mut. Ins. Co., Boleware, Louie M., applying for writ of certiorari to the Court of Appeal, Second Circuit, No. 16208-CA; Parish of West Carroll, 5th Judicial District Court, Div. “A”, No. 16084.

Prior report: 457 So.2d 722.

Denied.

LEMMON, J., would grant the writ.


text:
    Josephine Marie PRICE, et al. v. LOUISIANA FARM BUREAU MUTUAL INSURANCE COMPANY, et al.
    No. 84-C-1856.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re American Employers Ins. Co., applying for writ of review to the Court of Appeal, Second Circuit, No. 16208; Parish of West Carroll, 5th Judicial District Court, Div. “A”, No. 16084.

Prior report: 457 So.2d 722.

Denied.

LEMMON, J., would grant the writ.


text:
    STATE ex rel. Glenn HOUSTON v. Edwin A. LOMBARD, Clerk of Court, Criminal District Court.
    No. 84-KH-1894.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Houston, Glenn, applying for remedial writ, Parish of Orleans, Criminal District Court, Div. “G”, No. 272-293.

Denied.


text:
    STATE ex rel. Elrick Paul FORET v. David YELVERTON.
    No. 84-KH-1948.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Foret, Elrick Paul, applying for remedial writs, Parish of Terrebonne, 32nd Judicial District Court, Div. “B”, No. 122394.

Denied.


text:
    STATE ex rel. Russell J. CHALINE v. Criminal Court Reporter Mrs. STANLEY, et al., 14th Judicial District Court, Parish of Calcasieu.
    No. 84-KH-1953.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Chaline, Russell J., applying for writ of mandamus, Parish of Calcasieu, 14th Judicial District Court, Div. “F”, Nos. 2817-82, 4130-83, 6507-81.

Denied. Moot.


text:
    STATE of Louisiana v. Mary M. DAVIS and Alvin R. Thomas.
    No. 84-K-1963.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
    Reconsideration Denied Jan. 25, 1985.
   In re Davis, Mary M. et al., Thomas, Alvin R., applying for writ of certiorari, writ of review to the Court of Appeal, Fourth Circuit, No. KA-1694; Parish of Orleans, Criminal District Court, Div. “J”, No. 296-883.

Prior report: 457 So.2d 91.

Denied.


text:
    STATE of Louisiana v. Lynn Zell JONES.
    No. 84-K-1992.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Jones, Lynn Zell, applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16288-KA; Parish of Caddo, 1st Judicial District Court, Div. “D”, No. 122-096-A.

Prior report: 457 So.2d 110.

Denied.


text:
    STATE of Louisiana v. Melissa A. WALPOLE.
    No. 84-K-1994.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re State of Louisiana et al., applying for writ of certiorari and/or review, supervisory and remedial to the Court of Appeal, Second Circuit, No. 16,674-KW; Parish of Bossier, Bossier City Court Div. “ ”, Nos. 65820, 67475.

Prior report: 459 So.2d 172.

Denied.

LEMMON, J., would grant the writ.


text:
    LIVINGSTON PARISH POLICE JURY, et al., on Their Own Behalf and as Members of a Class and on Behalf of All Others Similarly Situated v. ILLINOIS CENTRAL GULF RAILROAD COMPANY, et al.
    84-CC-2007.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Illinois Central Gulf R.R. Co., applying for writ of certiorari and/or review, supervisory and remedial writs, Parish of Tangipahoa, 21st Judicial District Court, Div. “B”, No. 72-706; to the Court of Appeal, First Circuit, No. CW-1334.

Denied.


text:
    Essie Sprawls WHITE, Billie White Nix and Helen White Horneman v. J.O. EVANS, Constance C. Evans, S.B. Evans, Richard H. Evans and S.B. Evans, Jr.
    No. 84-C-2014.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re White, Essie Sprawls et al., Evans, J.O. et al., Nix, Billie White, Horneman, Helen White, applying for writ of certiorari and/or review to the Court of Appeal, Second Circuit, No. 16456-CA; Parish of Bien-ville, 2nd Judicial District Court, Div. “C”, No. 25417.

Prior report: 457 So.2d 159.

Denied.


text:
    STATE of Louisiana v. Glyn A. WILSON.
    No. 84-K-2032.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Wilson, Glyn A., applying for writ of certiorari and/or review to the Court of Appeal, Fourth Circuit, No. KA-1801; Parish of Orleans, Criminal District Court, Div. “F”, No. 295-752.

Prior report: 457 So.2d 75.

Denied.


text:
    STATE ex rel. Willie BRUINS v. Frank C. BLACKBURN, Warden, State of Louisiana.
    No. 84-KH-2054.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Bruins, Willie, applying for remedial writ; Parish of Rapides, 9th Judicial District Court, Div. “C”, No. 196-668. Denied.


text:
    Sadie Aline CAMPOS, Individually and as Provisional Curatrix of Her Son Donald Jerome Campos, and Donald Jerome Campos, Individually v. Shelton GERALD, Alton Gerald and Allstate Insurance Company.
    No. 84-C-2057.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Campos, Sadie et al., Campos, Jerome, applying for writ of certiorari and/or review, Court of Appeal, First Circuit, No. 83-CA-1241; Parish of Washington, 22nd Judicial District Court, Div. “E”, No. 48116E.

Prior report: 460 So.2d 36.

Denied. Result is correct.


text:
    Luke DIMATTIA v. GULF SOUTH BEVERAGE, INC., the Allstate Insurance Company and Earl White.
    No. 84-C-2058.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Gulf South Beverage, Inc. et al., Allstate Insurance Co., White Earl, applying for writ of certiorari and/or review, Court of Appeal, Fifth Circuit, No. 84-CA-75; Parish of Jefferson, 24th Judicial District Court, Div. “A”, No. 260-556.

Prior report: 459 So.2d 598.

Denied.


text:
    STATE of Louisiana ex rel. Derrick BELL v. CRIMINAL DISTRICT COURT, et al.
    No. 84-KH-2061.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Bell, Derrick, applying for writs of mandamus, supervisory and remedial; Parish of Orleans, Criminal District Court, Div. “J”, No. 268-855 J.

Denied.


text:
    Olivera CLARK v. SOUTHERN FARM BUREAU CASUALTY INSURANCE COMPANY, et al.
    No. 84-C-2063.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Clark, Olivera, applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 83-956; Parish of Evangeline, 13th Judicial District Court, Div. “B”, No. 37881-B.

Prior report: 458 So.2d 610.

Denied.


text:
    STATE of Louisiana v. Jackie Lynn Joseph John JONES.
    No. 84-KH-2064.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Jones, Jackie Lynn Joseph John, applying for writ of certiorari and/or review, Court of Appeal, Second Circuit, No. 16337-KH; Parish of Caddo, 1st Judicial District Court, Div. “B”, No. 115756.

Denied.


text:
    KAPLAN TELEPHONE COMPANY v. CITY OF KAPLAN BOARD OF ADJUSTMENT.
    No. 84-C-2076.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Kaplan City of Bd./Adjustment, applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 83-1047; Parish of Vermilion, 15th Judicial District Court, Div. “B”, No. 82-45606.

Prior report: 458 So.2d 664.

Denied.


text:
    Lynn Richard BRAY, et al. v. T.H. ISBELL, et al.
    No. 84-C-2077.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Bray, Lynn Richard et al., Landry, Nina Sue, Landry, Robert, applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 84-943; Parish of St. Landry, 27th Judicial District Court, Div. “C”, No. 85061-1.

Prior report: 458 So.2d 594.

Denied.


text:
    Freddie Wayne CLARK v. A.L. LAIRD, et al.
    No. 84-C-2079.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Laird, A.L. et al., applying for writ of certiorari and/or review, Court of Appeal, Third Circuit, No. 83-988; Parish of LaSalle, 28th Judicial District Court, Div. “ ”, No. 19124.

Prior report: 458 So.2d 639.

Denied.

BLANCHE, J., would grant the writ.


text:
    STATE of Louisiana v. Ken MOSLEY.
    No. 84-KH-2087.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Mosley, Ken, applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “D”, No. 303-776.

Denied.


text:
    CITY OF NEW ORLEANS v. Robert E. DeVECCA.
    No. 84-KK-2089.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re DeVecca, Robert E., applying for supervisory writ, Parish of Orleans, Traffic Court for City of New Orleans, Div. “A”, No. F542884-6; Criminal District Court, Div. “I”, No. 302-272; to the Court of Appeal, Fourth Circuit, No. K-2480.

Denied.

CALOGERO, J., would grant the writ.


text:
    STATE of Louisiana ex rel., Billy Ray FORD v. Honorable Julian A. BAILES, Judge, Fourth Judicial District Court.
    No. 84-KH-2090.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Ford, Billy Ray, applying for writ of mandamus; to the Court of Appeal, Second Circuit, No. 16917-KH; Parish of Oua-chita, 4th Judicial District Court, Div. “B”, No. 41219.

Denied.


text:
    Lucille MILLET v. CONTAINER CORPORATION OF AMERICA.
    No. 84-C-2091.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Millet, Lucille, applying for writ of certiorari and/or review; to the Court of Appeal, Fifth Circuit, No. 84-CA-263; Parish of St. John the Baptist, 29th Judicial District Court, Div. “B”, No. 14120.

Prior report: 459 So.2d 589.

Denied.

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


text:
    STATE ex rel. Sam PERKINS v. Hon. Donovan W. PARKER, Judge, 19th Judicial District Court, Parish of East Baton Rouge.
    No. 84-KH-2092.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Perkins, Sam, applying for writ of mandamus; Parish of East Baton Rouge, 19th Judicial District Court, Div. “C”, No. 12-74-5637.

Denied. Moot.


text:
    Donna Marie Boudreaux, Wife of Robert Joseph BARRILLEAUX v. Robert Joseph BARRILLEAUX.
    No. 84-C-2100.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Barrilleaux, Robert Joseph, applying for writ of certiorari and/or review, mandamus; to the Court of Appeal, Fifth Circuit, No. 84-CA-126; Parish of Jefferson, 24th Judicial District Court, Div. “E”, No. 265-883.

Denied.

CALOGERO and BLANCHE, JJ., would grant the writ.


text:
    STATE of Louisiana, ex rel. Keith JAMERSON v. Edwin A. LOMBARD, Criminal District Court.
    No. 84-KH-2104.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Jamerson, Keith, applying for mandamus; to the Court of Appeal, Fourth Circuit, No. K-3064; Parish of Orleans, Criminal District Court, Div. “G”, No. 296-101; Criminal District Court, Div. “E”, No. 295-723.

Denied.


text:
    STATE of Louisiana v. Jack Hudson CAMP.
    No. 84-K-2205.
    Supreme Court of Louisiana.
    Jan. 7, 1985.
   In re Camp, Jack Hudson, applying for stay, writ of certiorari, prohibition and mandamus; to the Court of Appeal, Second Circuit, Nos. 16443-KA, 16444-KA; Parish of Ouachita, 4th Judicial District Court, Div. “A”, No. 41070; 4th Judicial District Court, Div. “C”, No. 41118.

Prior report: 459 So.2d 53.

Denied.


text:
    STATE ex rel. Mack J. ZARDES v. Frank J. SHEA, Judge, Criminal District Court, Section “G”, Parish of Orleans.
    No. 84-KH-2085.
    Supreme Court of Louisiana.
    Jan. 8, 1985.
   In re Zardes, Mack J., applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “G”.

Granted. The district court is ordered to act, if it has not already done so, on the petition for writs submitted by relator on October 15, 1984.


text:
    STATE ex rel. Daniel HYORTH v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-2209.
    Supreme Court of Louisiana.
    Jan. 8, 1985.
   In re Hyorth, Daniel, applying for remedial writ; Parish of Orleans, Criminal District Court, Div. “G”.

Granted. The district court is ordered to act, if it has not already done so, on the petition for writ of habeas corpus submitted for filing October 21, 1982, if that petition has been filed.


text:
    STATE of Louisiana ex rel. David NELSON, et al. v. Harry F. CONNICK, et al.
    No. 85-KH-0036.
    Supreme Court of Louisiana.
    Jan. 8, 1985.
   In re David Nelson and Michael Brooks applying for writ of habeas corpus, prohibition and mandamus, Criminal District Court, Parish of Orleans.

Granted for the sole purpose of transferring to the district court for its consideration.


text:
    STATE ex rel. George ELLIOTT v. Frank BLACKBURN, Warden, Louisiana State Penitentiary.
    No. 84-KH-2195.
    Supreme Court of Louisiana.
    Jan. 9, 1985.
   In re Elliott, George, applying for writ of mandamus; Parish of Orleans, Criminal District Court, Div. “G”.

Granted. The district court is ordered to act, if it has not already done so, on the post conviction petition submitted about October 2, 1984, if that petition has been filed.


text:
    In re Charlotte Jo FALCONE.
    No. 85-OB-0028.
    Supreme Court of Louisiana.
    Jan. 11, 1985.
   In re Falcone, Charlotte Jo, In re, applying to take Bar.

Granted.


text:
    In re W. James SINGLETON.
    No. 85-OB-0038.
    Supreme Court of Louisiana.
    Jan. 11, 1985.
   In re Singleton, W. James In re, applying to take bar.

IT IS ORDERED THAT:

The application of W. James Singleton to take the February 1985 Bar Examination be accepted/filed with the Louisiana State Bar Association.


author: GAUDIN, Judge. BOUTALL, Judge,

text:
    STATE of Louisiana, Through the DEPARTMENT OF HIGHWAYS v. LUTCHER & MOORE CYPRESS LUMBER COMPANY, LTD.
    No. 83-CA-390, 83-CA-391.
    Court of Appeal of Louisiana, Fifth Circuit.
    Nov. 15, 1984.
    Rehearing Denied Jan. 17, 1985.
    Writs Denied March 8, 1985.

      Bryan Miller, Sr. Asst. Gen. Counsel, Baton Rouge, for plaintiff-appellant.
    John L. Peytavin, Martin, Himel, Peyta-vin & Nobile, Lutcher, for defendant-appel-lee.
    Before BOUTALL, CHEHARDY and GAUDIN, JJ.
   GAUDIN, Judge.

Appellant in these expropriation proceedings is the State of Louisiana, through the Department of Highways, contending that the monetary awards by the district court to the landowner, Lutcher and Moore Cypress Lumber Company, Inc., were excessive.

Two petitions were filed pursuant to LSA-R.S. 48:441 to 460 and Art. VI, Sec. 19.1 of the Louisiana Constitution and in the lawsuits, the trial judge awarded a total of $904,236.55, plus interest, costs and the fees of various expert witnesses.

In answer to the appeals, Lutcher and Moore does not question either the public necessity or purpose of the expropriations, but it does contend that it is entitled to additional funds and that the fees of its experts should be increased.

In suit No. 10,026, 23rd Judicial District Court, the trial judge awarded $138,623.00 for the property expropriated, for rental of a servitude area and for timber loss, and $278,750.00 as severance damages, a total of $417,373.00, minus $41,154.00 placed in the registry of the court by the State at the time of the expropriation. Thus, the actual amount awarded was $376,219.00, plus interest, costs and fees of expert witnesses.

In suit No. 10,027, the trial judge awarded $71,695.00- for the property expropriated, for rental of a servitude area and for timber loss, and $415,168.55 as severance damages, a total of $486,863.25, minus $20,855.00 placed in the registry of the court. Therefore, the actual amount awarded was $466,008.55, plus interest, costs and fees of expert witnesses.

For reasons that follow, we amend these awards. In suit No. 10,026, the record justifies an award of $180,233.83, which includes $137,758.83 for the property expropriated, for rental of a servitude area and for timber loss, and $83,625.00 as severance damages, minus the $41,154.00 placed in the registry of the court.

In suit No. 10,027, we amend the award to $180,573.38, which includes $76,877.82 for the property expropriated, for rental of a servitude area and for timber loss, and $124,550.56 as severance damages, minus the $20,855.00 placed in the registry of the court.

In both suits, we amend and affirm the awards for interest, and we affirm the awards for court costs and fees of expert witnesses.

BACKGROUND

In December, 1967, the State filed two petitions and expropriated a strip of land across Lutcher and Moore’s property to complete the Interstate 10 highway from New Orleans to Baton Rouge. The land taken, near the towns of Lutcher and Gramercy, was 300 feet wide and stretched east to west. A total of 225 acres was expropriated from a contiguous tract of approximately 30,000 acres.

In addition, the State acquired a temporary servitude over a 1000-foot wide strip, 714 acres, adjacent to the actual I — 10 roadway to use for muck disposal.

Lutcher and Moore’s land is traversed by the Blind River, which runs north to south. One suit (No. 10,026) expropriated the strip on the east side of the Blind River, while the other suit (No. 10,027) took the strip on the west side of the river. The State placed a total of $62,009.00 in the registry of the court, $41,154.00 in suit No. 10,026 and $20,855.00 in No. 10,027.

The following not-to-precise-scale sketch is a facsimile of several maps in evidence, showing the general layout of Lutcher and Moore’s property and the expropriated strip:

Following a lengthy trial, the district judge rendered judgment on January 14, 1983, awarding the amounts previously specified. In both judgments, legal interest was awarded as follows:

Seven per cent per annum from December 1, 1967 to September 12, 1980;
Ten per cent per annum from September 13, 1980 to September 11, 1981; and
Twelve per cent per annum from September 12, 1981 to date of payment.

Also in both suits, the fees of defendant’s experts were fixed and taxed as costs:

$5,292.15, to Raymond D. Hodges,
3,288.24, to Robert D. Hatcher,
250.00, to E. Paul Bercegeay,
3,190.00, to Kermit Williams, and
2,850.00, to John LeJeune.

The trial judge assigned reasons for:

(1) Rejecting Lutcher and Moore’s claim for clay mining possibilities;

(2) Placing a value of $500.00 per acre on the 225 acres taken;

(3) Establishing a rental value of the 714 acres used for muck disposal and setting a $50.00 per acre figure for loss of timber on these acres;

(4) Rejecting Lutcher and Moore’s claim for “... full compensation for what it terms the effective taking of the muck disposal area ...” and

(5) Assessing severance damages of $693,918.55 to the property north of the 1-10 while finding no severance damages to defendant’s land south of the 1-10.

On appeal, the State argues that the district court decrees were based on “... legal errors and manifest errors of fact ...” Lutcher and Moore, on the other hand, suggests that the district court judgments should be affirmed except in these instances:

(1) Lutcher and Moore should have been compensated (a) for the permanent taking of a 1000-foot long drainage area adjacent to the highway and (b) for damages to timber harvesting in a so-called devaluation zone north of the 1-10, and

(2) Defendant’s expert witnesses should have been paid $40,860.78.

Lutcher and Moore does not now suggest that severance damages should have been awarded for the property south of the I—10, nor does Lutcher and Moore argue that the property has or had clay mining potential.

TRIAL TESTIMONY

While each expropriation case is unique in some respects, the trial judge normally has to make an award for the land actually taken, based on the fair market value at the time of the expropriation, and make an award for severance damages if the property remaining after the taking has lessened in value.

Two things make the instant case uncommon. First, an additional award has to be made for temporary use of 714 acres used for muck storage and for timber loss on these acres; and, secondly, fair market values had to be determined for an area of approximately 30,000 dissimilar acres.

This case lasted 32 days, during which time the State called as witnesses:

(1) Charles Eslinger, the I-10’s section engineer and an expert in highway design;

(2) John Starring, the project engineer who described the right-of-way zone as a wet swamp with no access except by water;

(3) Eugene Waguespack, a civil engineer who surveyed the area;

(4) Lewis Peters, an expert appraiser of timberland and farmland who said that the virgin timber was gone, having been logged in the 1890-1920 period by pullboat operations, that the highest and best use of the property was for timber growth and recreation and that the landowner’s loss was $49,917.57, which included the value of the land taken, the value of the temporary rental servitude and the value of timber that was destroyed;

(5) Max Derbes, an expert in real estate appraisals, who placed Lutcher and Moore’s loss at $62,071.00, which included $20,242.00 for the land taken and $47,-769.00 for servitude rental and loss of timber; and

(6) Chester Driggers, another expert in real estate appraisal, who said the landowner should be paid $68,910.00.

In response, Lutcher and Moore called:

(1) Raymond Hodges, a civil engineer who said that the 1-10 had severed whatever limited overland access the property had, that large boats could not pass under the Blind River bridge and that the landowner’s loss amounted to $6,438,275.00;

(2) Edward Carmouehe, Lutcher and Moore’s president, who testified about the company’s future plan for the area;

(3) Robert Hatcher, timber and forestry expert, who said that the I—10 presented a serious barrier to future logging operations, that a “timber devaluation zone” now exists on Lutcher and Moore’s property and that the landowner’s timber loss was $164,817.82, which included a 25 per cent reduction in value of the timber in the devaluation zone;

(4) Paul Bercegeay, a petroleum and chemical engineer who testified about clay mining possibilities;

(5) Kermit Williams, an expert in real estate who itemized Lutcher and Moore’s loss at $1,425,776.00; and

(6) John Lejeune, another real estate expert and the former senior appraiser for the Department of Highways, who said that there was not adequate clearance under the Blind River bridge to build a roadway, that the land north of the 1-10 could now be reached only by boat and that severance damages amounted to $685,440.00, adding that the property closest to the I — 10 had dropped in value from $1,100.00 per acre to $140.00 per acre, primarily because clay mining possibilities had been lost.

THE AWARDS

After receiving these diverse views, the trial judge found that the highest and best use of the 225 expropriated acres and the 714 servitude acres was “... a combination of industrial, residential and recreational use ...,” and he assigned an overall fair market value of $500.00 per acre at the time of the taking.

The fair market value is the worth of property considered in- light of its highest and best use, this being the most favorable employment to which the land is acceptable and may reasonably be put to use in the not too distant future. State v. Rapier, 246 La. 150, 164 So.2d 280 (1964).

In arriving at the $500.00 per acre figure, the trial judge favorably considered several comparable sales, particularly a Trosclair-to-Rittenberg sale in January of 1965 for $642.00 an acre for 99 nearby acres, and the opinions of Mr. Williams and Mr. Lejeune.

The State’s experts testified that the highest and best use of Lutcher and Moore’s property was for growing timber and for recreation, and they placed per-acre values as low as $66.02. Apparently, these estimates were disregarded by the trial judge as being too low.

Regardless, the record does support a $500.00 per acre value on the 225 taken acres and the 714 acres used for muck disposal, and we will not disturb these determinations.

With regard to the worth of the temporary servitude, the trial judge used an annual rental figure of eight per cent of land value, a percentage figure testified to by several expert witnesses including Mr. Derbes and Mr. Williams. Mr. Lejeune said that a 10 per cent figure was appropriate, but the trial judge decided on the lesser figure.

An eight per cent rental return on $357,-000.00 (714 acres at $500.00 per acre) is $29,560.00 per year, or $2,463.33 a month. The muck storage area was used for two years and five months, establishing the total servitude rental value at $71,436.65.

The trial judge stated that he had “... little difficulty ...” in placing the timber loss on the servitude zone at $50.00 an acre, noting that “there is little doubt as to the accuracy of this value.” The record does support the $50.00 per acre assessment, and we will not upset it.

Of the 225 acres taken, 146 acres (65 per cent) were expropriated in suit No. 10,026, and 79 acres (35 per cent) in suit No. 10,-027. Likewise, 464 of the 714 servitude acres (65 per cent) are in suit No. 10,026, and 250 acres (35 per cent) in suit No. 10,027.

In suit No. 10,026, the record sub: stantiates these awards:

$73,125.00, for 146 acres taken at $500.00 per acre;
$46,433.83, for 464 acres rented at eight per cent of value for two years, five months; and
$18,200.00, for 464 acres of timber loss at $50.00 per acre.

These awards total $137,758.83, or slightly less than the amount designated by the trial judge.

In suit No. 10,027, the record substantiates these awards:

$37,375.00, for 79 acres taken at $500.00 per acre;
$25,002.82, for 250 acres rented at eight per cent of value for two years, five months; and
$12,500.00, for 250 acres of timber loss at $50.00 per acre.

These figures add up to $76,877.82, approximately $5,000.00 more than the trial judge awarded.

SEVERANCE DAMAGES

Following the expropriations, Lutcher and Moore was left with 5,575 acres north of the 1-10 and east of the Blind River (suit No. 10,026) and 8,303.371 acres north of the I — 10 and west of the river (suit No. 10,027).

The State’s experts described these acres as swamp lands, devoid of meaningful timber growth and usable mainly for recreational purposes. Lutcher and Moore tried to show, through its witnesses, that the area north of the highway was not a swamp but an area of tide lands with industrial, timber harvesting and clay mining possibilities. Tide lands are subject to water overflow and are different from swamps, which are constantly under water.

The trial judge described Lutcher and Moore’s property “... as a tree swamp subject to tidal overflow. It is uninhabited and unimproved except for certain recreational facilities of a rather primitive nature, such as hunting and fishing camps and structures related to outdoor activities.”

Before assessing severance damages to the acres north of the 1-10, the trial judge first had to determine if severance damages were due, then the amount if they were owed.

Severance damages are the difference in value of the remaining property immediately before and immediately after the taking. The before and after test may be applied to segmented areas as well as to the property in its entirety. Town of Rayville v. Thomason, 404 So.2d 1290, (La.App. 2nd Cir.1981); and State, Dept. of Highways v. Luling Industrial Park, 443 So.2d 672 (La.App. 5th Cir.1983), writs denied at 444 So.2d 1247.

Accordingly, the trial judge could award severance damages to the lands north of the I — 10 although deciding that property south of the interstate had not lessened in value.

There is no exclusive or artificial formula for determining severance damages, but the awards must be reasonable and must be related to adduced testimony and documentary evidence. Louisiana Power & Light Co. v. Churchill Farms, Inc., 292 So.2d 183 (La.1974).

The trial judge concluded that the areas north of the I — 10 had suffered a 10 per cent reduction in value. He stated:

“The testimony of all of the experts taken together makes it clear that there was a denial of access to the defendant’s property north of the new highway, that the presence of I — 10 has an adverse effect on recreational and timber activities and that it has virtually precluded from all time any possibility of any industrial development of that property ...”

Mr. Williams assigned a 10 per cent diminution in value to the lands north of the I — 10, and he valued the property at $1,000.00 an acre if clay could be mined and $150.00 per acre if land produced only timber.

Mr. Lejeune, too, said there was a 10 per cent drop in value. He valued the property near the I — 10 at $1,100.00 an acre, including clay deposits.

Mr. Hatcher said that the I — 10 was an obstruction that would raise timber harvesting costs.

The State’s experts were more conservative in their estimates, setting per acre value no higher than $100.00 for the area north of the interstate, and they refused to admit to any severance damages. Mr. Derbes even suggested that this property had increased in value “... because of its new increased prominence caused by the taking. People, when the highway is completed, will pass by the land and see it, so that their interest in it ... would be improved ...” Mr. Derbes’ optimistic opinion notwithstanding, the trial judge was satisfied that the property north of the I — 10 had been cut off by the roadway and had suffered a 10 per cent reduction in value. The record is supportive of this assessment, and we cannot say that the trial judge erred in this respect. However, once clay mining possibilities were dismissed by the trial judge as being too speculative, the record does not support his across-the-board valuation of $500.00 per acre. This sweeping evaluation included the 225 acres expropriated and the 714 servitude acres as well as the thousands of acres north of the 1-10.

The trial judge said that the testimony of Lutcher and Moore’s experts was “... very credible ...,” and it is apparent that he placed more faith in the precepts of Mr. Williams and appellee’s other witnesses than in the State’s experts. We have carefully reviewed Mr. Williams’ testimony and except in the areas immediately adjacent to the expropriated corridor, he does not value the land north of the 1-10 higher than $150.00 an acre unless clay mining potential exists. Clay mining possibilities were soundly disaffirmed by the trial judge, and Lutcher and Moore, on appeal, is not contesting this rejection. Hence, we cannot, for severance damages purposes, value the property north of the 1-10 at higher than $150.00 an acre. This is, of course, an average per acre value. The acres close to the expropriated strip are worth $500.00 per acre or perhaps slightly less, while the per acre values diminish as distance from the I — 10 increases.

Severance damages, ergo, are 10 per cent of $150.00, or $15.00 an acre. In suit No. 10,026, severance damages are $83,625.00 (5,575 acres times $15.00). In suit No. 10,027, severance damages are $124,550.56 (8,803.371 acres times $15.00).

APPELLEE’S CONTENTIONS

Lutcher and Moore maintains that it should also have been compensated:

(1) for the State’s effective taking of the muck disposal area by the installation of drainage canals, and

(2) for causing the cost of timber harvesting to rise in a so-called timber devaluation zone, a lateral strip of land immediately north of and running parallel with the 1-10.

Lutcher and Moore cites LSA-R.S. 48:223 as authority for demanding payment for the taking of the muck disposal area.

The statute reads, in pertinent part:
“The department may construct canals, ditches, or drains sufficient in its judgment to properly drain any highway embraced in the system of state highways constructed or to be constructed through any lands of private persons. The rights of way for these canals may be acquired in the same manner and on the same basis of compensation as provided for acquiring rights of way for highways.”

In his “Reasons for Judgment,” the trial judge recognized the fact that drainage laterals had been built. He said that he had “... admiration for defendant’s ingenious arguments ...,” but that Lutcher and Moore’s “... contention that it is entitled to additional compensation is found to be without merit. There is no testimony to indicate that the defendant has been harmed in any way. On the contrary, it should be observed, it has obtained some special benefits from these ditches which make the property more useful and more valuable than it was before the plaintiff began work.”

The record does support the trial judge’s denial of compensation for the canals, and it also supports his refusal to allow damages for increased harvesting expenses in the timber devaluation zone. All of the acres north of the 1-10 sustained a 10 per cent devaluation, and there was no precise testimony indicating that increased harvesting costs would cause property devaluation in excess of the 10 per cent figure testified to by Mr. Williams and Mr. Lejeune.

LEGAL INTEREST AND EXPERTS’ FEES

The trial judge’s computation of legal interest was statutorily correct, except that five per cent instead of seven per cent should have been awarded from December 1, 1967 to September 12, 1970, and seven per cent from September 12, 1970 to September 12, 1980.

The fixing of experts’ fees is within the sound discretion of the trial judge and should not be raised or diminished unless an abuse is shown. The fees are fixed by the trial judge with reference to the value of time and the degree of learning or skill required. Kalmn, Inc. v. Empiregas Corporation, 276 So.2d 276 (La.App. 3rd Cir.1981), and numerous other cases.

Here, we find no misuse of discretion, and we affirm the fees enumerated in the judgments, despite Lutcher and Moore’s contention that the amounts paid or owed to its expert witnesses exceeds the sums judicially , awarded.

DECREE

In suit No. 10,026, we amend the award to Lutcher and Moore to $221,383.83, minus $41,154.00 deposited in the registry of the court.

In suit No. 10,027, we amend the award to Lutcher and Moore to $201,428.38, minus $20,855.00 deposited in the registry of the court.

Interest is awarded as heretofore stated, and all other parts of both suits are affirmed. Each party to bear its appeal costs.

AMENDED AND AFFIRMED

BOUTALL, Judge,

concurring in part and dissenting in part.

I cannot agree with the results reached in the majority opinion and I delineate the reasons for my disagreement.

The first major issue is the evaluation of the property taken at $500.00 per acre. As I appreciate the testimony of the various appraisers, when you take away from the appraisal the valuation based upon the possibility of clay mining, the highest appraisal of the land per acre amounts to $150.00, and I cannot see that the testimony of any appraiser would justify the valuation of the property as it now stands. Nevertheless, even considering those appraisals, I think it somewhat persuasive to evaluate the cases which adjudicated property to the east of this property for the construction of this same I — 10 highway. I refer to the case of State, Department of Highways v. Lutcher and Moore, 364 So.2d 134 (La.App. 4th Cir.1978) involving another tract of land owned by these same defendants, and the case of State, Department of Highways v. Bougere, 363 So.2d 228 (La.App. 4th Cir.1978) which considered property between the two tracts. In each of these two cases, the court reached the conclusion that $250.00 per acre was an appropriate price for the taking.

However, I recognize that the evidence in one case may differ from the evidence in another case, not only as to the appraisals, but as to the location and best use of the land. The trial judge apparently recognized in this case a difference in the best use of at least a part of this land. While I see no difference as to that along the line of the property taken, there is room for a difference of opinion when one considers the entire tract of which this property is a part. The trial judge was apparently persuaded to his opinion because this tract in its southern most point did reach the Mississippi River. At the same time it is apparent from his reasons for judgment that he placed greater reliance upon the sale from Trosclair to Rittenberg than the amount stated by the appraisers themselves. I do not put such reliance upon that sale because I consider that the property is of such vast extent and varied usages that I am not persuaded that the sale of property along the Airline Highway can be equated with the property taken so far north. However, I feel I must accede to the findings of the trial judge because in this regard I would be merely substituting my opinion for his in violation of the rules of appellate consideration.

Accordingly, although I think the award of $500.00 per acre is overly generous, I cannot say that the trial judge is manifestly erroneous, and I concur in his valuation.

As to the second major issue, I am of the opinion that the trial judge has erred in awarding severance damage for the property north of the right of way. I do not see in this record any factual evidence that would support the proposition that the value of the property north of the right of way is less after the taking than it was before the taking. While it may be that the owners of this property have ambitious plans for the development of the property in the future, I think that the record clearly shows that those proposed projects are speculative and are not compensable. There is no difference between the use of the land north of the highway prior to the taking as compared to after the taking, even as reflected in the testimony which took place a number of years after the actual taking. The property has its best use of timber and recreational pursuits, with income available pursuant to sales or rentals for campsites, hunting, fishing, trapping, etc. I agree with the trial judge’s finding that the land is unsuitable for clay mining.

The major issue as I see it is the accessibility of the north tract. It may be that in many tracts of land, the simple division of it into two parts with a limited access highway between will cause damages. But in our case, this is one large tract of cypress-tupelo swamp and the only access between the north and south sections at the time of the taking was by way of Blind River, by pirogue through the swamp, or by way of walking through the swamp in hip boots. Blind River is still there and the Department has made provisions for continued use of Blind River for navigational purposes as well as leaving space for access roadways along the banks of the River for land passage. Additionally, an interchange was installed at the intersection of Louisiana Highway 641 just to the east of Blind River and that interchange permits a road access to the northern portion of the property immeasurably improving access, indeed providing an access never enjoyed before.

Accordingly, I dissent from that portion of the opinion which grants severance damages.

      . Louisiana Constitution of 1921.

      . Of course, the access to the northern portion from Lake Maurepas through Blind River and its tributaries is unaffected.


author: ALFORD, Judge.

text:
    SUCCESSION OF Alice REMONT.
    No. CA 83 1270.
    Court of Appeal of Louisiana, First Circuit.
    Nov. 26, 1984.

      Richard J. Bouterle, Jr. and Edmond L. Deramee, Sr., Thibodaux, for plaintiff-appellant.
    George J. Ledet, Jr., Cut Off, for defendant-appellee.
    Before WATKINS, CRAIN and ALFORD, JJ.
   ALFORD, Judge.

This is an appeal from a judgment in favor of defendant-appellee, Thelma Guidry Bourgeois. Plaintiff-appellant, Alcide Re-mont, filed suit seeking to annul the probated olographic testament of his deceased sister, Alice Remont, and to probate a subsequent statutory testament executed by decedent. Defendant answered the suit and reconvened seeking to have the subsequent statutory testament declared null and void for defects in its form and for lack of testamentary capacity. The trial court, after a hearing on the merits, ruled that the statutory testament was invalid because it was not executed in compliance with the requirements of LSA R.S. 9:2442.

The trial court in its reasons for judgment reached the following factual determinations. Decedent died testate on April 12, 1979. Prior to her death, Miss Remont executed an olographic testament dated September 15, 1970, naming defendant Bourgeois testamentary executrix and residuary legatee. At the time this testament was probated, November 26, 1979, the court was not aware of the existence of the subsequent statutory testament dated March 1, 1977. The statutory testament did contain a revocatory clause revoking all prior testaments.

At the time decedent executed the statutory testament, she was eighty-two (82) years old and suffering from a broken hip. She had been hospitalized for some thirty (30) days, undergone an operation and was under heavy medication for much of the period immediately prior to the statutory testament being executed. The testament was prepared by a Lafourche Parish attorney at the request of plaintiff. The attorney who prepared the testament was unable to attend to its execution, and thus, a New Orleans attorney was enlisted to complete the task.

As noted by the trial judge, the evidence presented is at best confusing as to what actually transpired on the evening the testament was executed. The notary arrived at the Southern Baptist Hospital in the early evening hours of March 1, 1977, and had a discussion with Miss Remont. The notary testified that he read the document to decedent and then gave her a copy which she glanced at. It is uncertain as to whether anyone else was present at the time of this discussion. Miss Remont’s two sitters were then asked to witness her signature. The trial court characterized the testimony of the notary concerning the formalities followed in executing the will as unsure.

Both the trial testimony and the deposition of the first witness, Mrs. Emma Coco, is conflicting. In her deposition, Mrs. Coco stated that she thought that she was witnessing the fact that Miss Remont was in her right state of mind. She could not at first remember if Miss Remont signified in anyway that the document being signed was her last will and testament or whether the notary even asked her to do so. Later in her deposition, Mrs. Coco stated that the decedent did not signify as to what she was signing. At trial, Mrs. Coco first testified that the decedent stated that she was changing her will, but then, on further examination she testified that decedent made so such statement.

The other witness, Mrs. Eva Mae Gould, was not present at trial but her deposition was introduced into evidence. In her deposition, Mrs. Gould also made conflicting statements as to whether decedent signified in any way that she was executing a last will and testament. In addition, Mrs. Gould stated that she did not see Mrs. Coco witness the document.

Exceptionally compelling proof of the nonobservance of the formalities must be presented to rebut the presumption of the validity of a will. Succession of Straggers, 254 So.2d 289 (La.App. 4th Cir.1971), application not considered 254 So.2d 617 (La.1971). We are of the opinion that no such showing has been made in this case. Although attestation clauses are not self-proving for purposes of probate, their primary purpose is to evidence that the statutory formalities had been satisfied at the time the will was executed. Succession of Porche, 288 So.2d 27 (La.1973). Given the fact that the testament in question contained an attestation clause drawn in compliance with the suggested form noted in LSA R.S. 9:2442, we are of the opinion that the testament is valid as to form. However, we are of the opinion, for reasons discussed below, that the statutory will is in fact invalid.

Although there was substantial evidence presented to show the lack of testamentary capacity of the testator, the trial court did not reach this issue due to its decision on the formalities issue. We are of the opinion that the interest of justice requires that we consider this allegation. Further, in that we have the entire record before us, to remand for this determination would not be in the interest of judicial economy. Gonzales v. Xerox Corporation, 320 So.2d 163 (La.1975).

We are aware of the fact that testamentary capacity is presumed, and that the burden of proving a lack of capacity at the time the will was executed is placed upon the person attacking the will. Succession of Clement, 402 So.2d 702 (La.App. 4th Cir.1981), writ denied, 407 So.2d 733 (La.1981). We are of the opinion that defendant has met her burden.

As noted above, decedent was an eighty-two (82) year old woman suffering from a broken hip and hospitalized for over thirty (30) days prior to the execution of the testament. One of the witnesses to the testament, Mrs. Gould, stated in her deposition that decedent appeared to be very disoriented on the day in question. Additionally, decedent’s hospital records introduced into evidence reveals that decedent had been subjected to massive amounts of sedatives and painkillers during her hospital stay. It is the uncontradicted testimony of Dr. Manolito T. Seludo, the only expert to testify, which is the most persuasive in this court’s opinion. Dr. Seludo, after describing the effects of each of the prescribed drugs and correlating the effects to the time periods in which they were administered, stated without qualification that decedent could not have been in a sufficient state of mind to adequately understand the consequences of what she was doing. We find that the totality of the circumstances in this case mandates a finding that the decedent lacked the requisite testamentary capacity.

Therefore, pursuant to the authority vested in us by LSA C.C.P. art. 2164 to render any judgment just, legal and proper upon the record on appeal, we hereby find the statutory testament of Alice Remont dated March 1, 1977, invalid for lack of capacity on the part of the testator. Costs are taxed to appellee.

AFFIRMED.

      . Prior to its amendment by Acts 1980, No. 744, § 1, LSA R.S. 9:2442 read in pertinent part, "[i]n the presence of the notary and both witnesses the testator shall signify to them that the instrument is his will ...” The noted amendment had the effect of changing this provision to read, "[i]n the presence of a notary and two competent witnesses, the testator shall declare or signify to them that the instrument is his last will ...”


author: REDMANN, Chief Judge.

text:
    STATE of Louisiana v. John E. MEYERS.
    No. K 3006.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 1984.
    Richard B. Stricks, New Orleans, for relator.
    Leander H. Perez, Jr., Dist. Atty., Pointe-a-la-Hache, for State.
    Before REDMANN, C.J., and GARRISON and KLEES, JJ.
   REDMANN, Chief Judge.

We granted certiorari, staying trial meanwhile, to review the trial court’s refusal to quash a bill of information charging relator with disturbing the peace, La. R.S. 14:103(A)(2), by displaying on his pickup truck while driving in Plaquemines parish a bumper sticker reading “Fuck Charles Foti, Jr.” Charles Foti, Jr. is the criminal sheriff of Orleans parish. Relator represents that he was at one time employed as a deputy by Sheriff Foti. We now reverse and quash the charge.

We deem the matter controlled by cases from both the United States and the Louisiana supreme courts interpreting the constitutional right of free speech. Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), held protected by the constitution the expression “Fuck the draft” on a jacket worn in a county courthouse in the presence of women and children. City of New Orleans v. Lyons, 342 So.2d 196 (La.1977), held unpunishable the response “Fuck you” by a woman accosted by a police officer on a complaint that she was soliciting for prostitution. We find no distinction between those cases and the present matter, and the district attorney has not suggested any (nor any other reason why the information should stand).

Reversed; information quashed.


text:
    Erich A. KOENIGER v. Paul R. LENTZ et al.
    No. C 3075.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 11, 1984.
    See also La.App., 450 So.2d 680.
    Alan H. Goodman, Roger A. Stetter, Lemle, Kelleher, Kohlmeyer, Huntley, Moss & Frilot, New Orleans, for petitioner.
    William F. Wessel, New Orleans, for respondents Herman A. Dressel and Robert W. Hutchins.
    Bruce C. Ashley, II, New Orleans, for respondent Paul R. Lentz.
    Before REDMANN, C.J., and WARD and WILLIAMS, JJ.
   REDMANN, Chief Judge.

We grant certiorari to review and we affirm a refusal of summary judgment.

Mover, a continuing guarantor, in large part paid the principal debts he and respondents had guaranteed, and for the balance he gave his note. He was conventionally subrogated to all rights of the creditor bank. He then sued on the original notes and guaranties, demanding from his co-guarantors the full amount (or alternatively their virile shares) of the principal and interest, plus the attorney’s fees provided in the note.

Aiavolasiti v. Versailles Gardens Land Dev. Co., 371 So.2d 755 (La.1979), holds that, in the absence of their “clearly expressing an intention to be bound as soli-dary obligors even among themselves,” continuing guarantors occupy the position of sureties in their relations towards one another, and that when one guarantor “paid or otherwise discharged the debts,” id. at 756,

“The principal debtor and the other sureties were discharged by [that one guarantor’s] payment, and his recourse against them consequently must be based on law, as provided by the surety-ship rules, and not on contract. The court of appeal, therefore, reached the correct result ... in denying plaintiff judgment based on the promissory note.” Id. at 758.

Even as to one note with the accomodation indorsement of the guarantors, “not discharged” by payment by “a party secondarily liable thereon,” former R.S. 7:121 [N.I.L. § 121], “the rights and obligations among the six [guarantors] are governed by the rules of suretyship_” Id. at 760.

Petitioner seeks to have the notes here involved treated as not discharged, and himself as their subrogee, as a similarly situated plaintiff may appear to have been treated in Fox v. Corry, 149 La. 445, 89 So. 410 (1921). Fox did speak of its plaintiff as having “a right of action as transferee of the bank,” but that language may be 'deemed unessential to the opinion because of two circumstances. First, Fox used that language in responding to an argument that C.C. 3058 gives the surety a remedy against co-sureties “only, when such person has paid in consequence of a lawsuit instituted against him.” Because that provision of art. 3058 is not applicable among solidary co-sureties (see Aiavolasiti), that language in Fox may be deemed obiter dictum. Second, the judgment in Fox in fact did not award the attorney’s fees provided by the notes, and awarded legal interest rather than the interest provided by the note. Thus in fact the plaintiff in Fox did not recover as a “transferee” of the notes or in accordance with their terms but only as a co-surety under art. 3058. To the extent that Fox may suggest that a co-surety could buy rather than pay the principal obligation, and thereby become entitled to the original creditor’s rights against the other co-sureties, we deem it inconsistent with Aiavolasiti, which we are bound to follow.

We conclude that plaintiff may not sue on the notes, and that his rights against his co-guarantors are governed by the rules of suretyship.

The basic rule as between sureties is that “the surety who has satisfied the debt, has his remedy against the other sureties in proportion to the share of each ...,” C.C. 3058. Plaintiff’s motion for summary judgment does not show that there is no genuine dispute over the relative shares of the sureties.

Affirmed.


author: CURRAULT, Judge. BOWES, Judge,

text:
    Dr. Harry B. CAPLAN v. LATTER & BLUM, INC.
    No. 84-CA-96.
    Court of Appeal of Louisiana, Fifth Circuit.
    Dec. 11, 1984.
    Writ Granted Feb. 4, 1985.

      Irl R. Silverstein, Gretna, for plaintiff-ap-pellee.
    Mitchell J. Hoffman, McCloskey, Den-nery, Page & Hennesy, New Orleans, for defendant-appellant.
    Before CHEHARDY, BOWES and CUR-RAULT, JJ.
   CURRAULT, Judge.

This appeal originates in the Twenty-Fourth Judicial District Court, Division “C”, wherein the Honorable Joseph F. Gre-fer rendered judgment in favor of plaintiff-lessor, Dr. Harry B. Caplan, and against defendant-lessee, Latter & Blum, Inc., for lessee’s abandonment of leased premises without justification.

The facts of this case, well articulated by the trial court, are as follows:

The record reflects that on October 31, 1980, Latter & Blum, Inc., as tenant, and Dr. Harry B. Caplan, as lessor, executed a lease agreement for approximately 2,786 square feet on the second floor of a building located on 3409 North Hullen Street in Metairie, owned by Dr. Caplan. Latter & Blum, Inc. located its commercial division in this Metairie office. This five-year least [sic] was to commence January 15, 1981, and terminate January 14, 1986. Said lease provides for a monthly rental payment of $1,973.48 each month, due on the first day of each month.
Shortly after moving into the premises, Latter & Blum, Inc. determined it had excess space and, with Dr. Caplan’s permission, subleased approximately 538 square feet of said space to Health Care Associates, Inc. for a one-year term from April 15, 1981, through April 14, 1982. Subsequent thereto, Latter & Blum, Inc. decided to move its commercial division out of the North Hullen Street location and arranged to have a “For Lease” sign erected in front of the building advertising the availability of the second floor space. The record indicates that Dr. Ca-plan objected to the placement of said sign and removed the sign from the premises. Latter & Blum, Inc. viewed this action as an attempt by Dr. Caplan to frustrate their efforts to sublease the office space. Eventually Latter & Blum, Inc. secured Duke Advertising Agency as a prospective subtenant and submitted to Dr. Caplan financial information, references, and certain plans the Duke Agency had prepared to install a sink in the leased premises. The testimony reveals that Dr. Caplan refused to accept Duke, the proposed subtenant. The record reflects that Dr. Caplan asserted three grounds for his refusal to consent to said subtenant. First, Dr. Caplan complained of the financial solvency of the prospective subtenant. Second, Dr. Caplan raised as an obstacle to his consent the increased square-foot rental proposed to be charged to the Duke Agency, which was substantially higher than the original base rate and which was not being passed on to the lessor. The third reason presented by Dr. Caplan was his objection to the proposed changes in the physical structure of the premises, which he asserted would have resulted in the placement of water lines directly overhead to his office which could potentially cause damage to his facilities.
Defendant, Latter & Blum, Inc. took the position that Dr. Caplan was arbitrary and capricious in his refusal to approve the sublease and that under the terms of the lease it was entitled and elected to terminate its lease without any further obligation to Dr. Caplan, [sic] As a result of this refusal, Latter & Blum, Inc. moved out of the space and refused to pay rent asserting that Dr. Caplan had breached his obligations under the lease, specifically lines 113-116 of said lease.
The record reflects that Latter & Blum, Inc. vacated the premises on or about June 1, 1982. The record further reflects that the rental payment due on June 1, 1982, was not paid by defendant to plaintiff. Furthermore, in accordance with the default provisions of said lease, plaintiff notified defendant by certified mail on June 10, 1982, of its default and advised the defendant that it had 20 days to cure said default under the terms of said lease. Despite receipt of this notice by defendant on June 14, 1982, to date defendant has still failed to pay rent due for the month of June, 1982, and the subsequent months thereafter. As a result of Latter & Blum, Inc.’s abandonment and failure to make payment of the rent, Dr. Caplan filed this suit for breach of lease against lessee, Latter & Blum, Inc.

After a trial on the merits, judgment was rendered in favor of Dr. Caplan for the full amount of the accelerated lease together with 15 percent attorney’s fees. Latter & Blum has appealed, asserting the following specifications of error:

that (1) the trial court erred in its interpretation of the applicable standard of reasonableness required of the lessor to refuse his consent to a sublease; that

(2) Caplan was not reasonable in refusing to consent to the sublease to Duke Advertising Agency under any applicable standard; that

(3) even assuming Latter & Blum, Inc. breached the lease, the trial court erred in awarding accelerated rent as opposed to following the election of remedies provided in the lease agreement between Latter & Blum, Inc. and Caplan; that

(4) assuming Latter & Blum, Inc. is held to have breached the lease, the trial court erred in awarding plaintiff attorney’s fees in the amount of 15 percent of the amount claimed by- plaintiff pursuant to lines 130-135 of the lease agreement; that

(5) the trial court erred in failing to require Caplan to mitigate his damages; and that

(6) the trial court erred in not recognizing that Caplan retook possession of the leased premises for his own account on September 23, 1982 by listing the former Latter & Blum, Inc. space for lease at a price far in excess of the market value.

The trial court concluded Caplan was reasonable in withholding his consent. As recited in the facts, Caplan asserted three grounds for his refusal to consent. However, it appears the trial court focused upon Caplan’s concern with the proposed sublessee’s financial soundness for its determination that his refusal was reasonable.

Caplan requested a financial statement from the proposed sublessee. He testified that after reading this statement he, “... felt that the agency wasn’t strong enough to meet the financial obligations of the lease. The main bulk of her accounts receivable were — the main bulk of her financial statement were in the account receivables and I didn’t know how viable they were, how old they were, how collectible they were and whether they were pledged or not and I felt that if she collected 80 percent of those accounts receivable, which today on this economic market might not be an unrealistic figure my figures showed that she would still be $10,000.00 in deficit.” (Transcript P. 15)

Dr. Caplan’s financial concerns were amply supported by the testimony of Gerald Duhon, Certified Public Accountant, who qualified as an expert witness in the field of public accounting. Mr. Duhon testified that he was presented with the same financial information that was presented to Dr. Caplan, namely the statement of financial condition of the sublessee. Mr. Duhon further testified that he was requested to review the statement in terms of generally accepted accounting principles and to determine the financial ability of the sublessee to meet its obligations under the proposed sublease. He further testified that the balance sheet provided did not comply with the generally accepted procedures of accountancy because it contained no financial disclosures such as footnotes; no statement of operations, which would be a statement of income and loss; no statement of retained earnings and no statement of changes in financial position, which would give a summary of where the money came from and where it went. Mr. Duhon’s opinion included findings that the sublessee appeared undercapitalized and highly leveraged in terms of its assets. When he made a comparison of the sublessee with national figures of comparably sized firms in the same business, he concluded that Dr. Ca-plan acted in a very prudent manner in rejecting the proposed sublease based upon the financial conditions presented to him. Appellant did not rebut this testimony.

This court must give great weight to the factual conclusions reached by the trial court and is prohibited from substituting our own evaluation and inferences for those of the trier of fact; instead, we are relegated to the duty of determining whether the trier of fact was not merely erroneous, but manifestly erroneous in those factual determinations. Rome v. State Farm Mut. Auto. Ins. Co., 439 So.2d 1253 (La.App. 5th Cir.1983); Mayeux v. Cane-Air, Inc., 426 So.2d 305 (La.App. 5th Cir.1983); Parr v. Kelly, 420 So.2d 1187 (La.App. 5th Cir.1982).

Appellant has failed to show in what manner the trial court was manifestly erroneous (clearly wrong) in concluding Ca-plan’s consent was reasonably withheld. After carefully reviewing the record, we conclude the trial court’s decision was soundly reasoned, well within discretion, and was not clearly wrong. For us to find otherwise would be, in effect, a substitution of our evaluation and inferences for those of the trier of fact which would constitute a violation of our established jurisprudential standard of review.

Appellant next complains that the trial court erred in awarding accelerated rents as opposed to having appellee cancel the lease. Appellant cites specifically lines 90-95 of the lease as the basis for such contention asserting that since appellee chose to accelerate rents, but did not immediately release the premises, then appel-lee’s only other course was to cancel the lease.

Appellee’s suit, however, was based upon appellant’s failure to pay rent. The trial court specifically found though that appellant’s voluntary and unjustified abandonment of the lease premises clearly constituted a breach of that lease and, accordingly, accelerated the rent under lines 119-130.

The jurisprudence is clear that a lessor cannot collect accelerated rents and cancel his lease. The lessor can, however, accelerate the whole amount of the rent under the lease, collect them, and then, although under no duty to do so, may mitigate any damages he may have suffered as a result of lessee’s abandonment. Lessor, however, is equitably bound to credit the original lessee for the amount received from the new tenants. Weil v. Segura, 178 La. 421, 151 So. 639 (1933); Preen v. LeRuth, 430 So.2d 825 (La.App. 5th Cir.1983); Lirette v. Sharp, 44 So.2d 221 (La.App. 1st Cir.1950).

The granting of accelerated rents by the trial court was proper under the facts of the case. However, as stipulated by parties, the premises in question were released by appellee to a new tenant on December 15, 1983. Accordingly, appellant is entitled to a credit of those rents due from that date until the expiration of the original lease.

Appellant initially failed to pay its rent on June 1, 1982. Occupancy by the new tenant began December 15, 1983. The appellant is therefore liable for eighteen and one-half months (I8V2) of rent at a monthly rental of One Thousand Nine Hundred Seventy-Three Dollars and Forty-Eight Cents ($1,973.48); or Thirty-Six Thousand, Five Hundred Nine Dollars and Thirty-Eight Cents ($36,509.38).

Appellant also asserts that awarding appellee 15 percent attorney’s fees, as called for by the lease, was error by the trial court. Appellant cites Leenerts Farms, Inc. v. Rogers, 421 So.2d 216 (La.1982) for the proposition that attorney’s fees must be reasonable and cannot be set by contractual provisions which provide unreasonable fees. Appellee, on the other hand, suggests that the Leenerts Farms decision has been overruled legislatively by the enactment of 1983 Louisiana Acts, No. 483 § 1, amending Louisiana Civil Code Article 1935.

There is no question the Leenerts Farms decision has been legislatively overruled. However the lease, which operates as law between the parties, clearly dictates that attorney’s fees become due when the lease is breached. This lease was breached by appellant on June 1, 1982 when they failed to pay rent. Accordingly, the attorney’s fees were also triggered on that date. As the attorney’s fees came into existence well before the Leenerts Farms decision, we rule the lease, providing 15 percent attorney’s fees, controlling.

Accordingly, for the foregoing reasons, the judgment in favor of appellee, Dr. Ca-plan, and against appellant, Latter & Blum, Inc., is affirmed; the judgment, however, insofar as to its amount, is amended to a reduced amount of Thirty-Six Thousand, Five Hundred Nine Dollars and Thirty-Eight Cents ($36,509.38). Attorney’s fees (15 percent) are to be based upon the reduced award of $36,509.38. All costs of this appeal are to be paid by appellant.

AFFIRMED IN PART; AMENDED IN PART; AND AFFIRMED AS AMENDED.

BOWES, J., dissents with written reasons.

BOWES, Judge,

dissenting.

I respectfully disagree with the majority opinion of my learned brothers. I am of the opinion that Dr. Caplan was unreasonable in withholding his permission to allow Latter & Blum, Inc. to sublease to the Duke Advertising Agency, Inc.

Both the trial court and the majority place great emphasis on one of Dr. Ca-plan’s objections to Duke as a sublessee, namely that the agency did not meet the financial criteria he required for the tenants of his building. In my opinion, this objection by Dr. Caplan is spurious. My reading of the record reflects that the doctor testified that he made no inquiry at all into the financial status of a recent previous sublessee (Health Care Associates) of Latter & Blum. Caplan not only approved that former sublease without any information as to the financial soundness of the sublessee, but he also approved it for an increased square-foot rental to Latter & Blum, the basis of his alleged second objection to the “Duke” sublease. There were no adverse financial effects to Caplan from this action. Therefore, he would have no reason to suddenly change his procedure and begin an inquiry into the financial status of sublessees.

Since Latter & Blum would have remained completely responsible for the lease payments even if Duke had defaulted and since there was never any question raised as to the financial stability of Latter & Blum and since plaintiff-appellee had previously approved the sublease between Latter & Blum and Health Care Associates without inquiry into financial status, and at a substantially higher per square-foot rate, I am of the opinion that these first two objections to the Duke sublease have no merit. In addition, based on past performance, Latter & Blum had good reason to expect the sublease to be approved.

The majority opinion attempts to justify Dr. Caplan’s conclusions regarding the financial stability of Duke because they were corroborated by the testimony of Gerald Duhon, a C.P.A., who was offered as an expert witness at trial. I look with a jaundiced eye upon this reasoning for two reasons. First, I seriously doubt that an active medical doctor would be so well-versed in accounting and financial terms to value the viability and collectibility of accounts receivable (as Caplan testified he did) and conclude that Duke would still have a deficit of $10,000. Secondly, it is obvious that any support or corroboration from the C.P.A. for Caplan’s financial objections came long after the fact, as Duhon testified he had been retained by Caplan’s attorney “in connection with the trial.”

While appellant did not directly offer testimony to rebut Duhon’s opinion, defendant did introduce testimony that it located other office space for Duke; that the space located cost Duke more in rent than it would have paid to Latter & Blum as a subtenant; and that Duke presently remains in that space, paying the higher rent, without ever being in default. In my opinion, the proven performance of a business is certainly equal to the conjecture of an expert — and both are “after the fact.”

Finally, Caplan’s third objection to the sublease that the trial court felt was justified, and was, therefore, embraced by the majority opinion, was a proposed change in the physical structure of the premises which would have resulted in the placement of water lines directly over Caplan’s office and could result in great damage to his expensive equipment.

At first blush, this would certainly seem to be a meritorious objection. The only trouble is that it is a non-existent ground. The testimony of Lana Duke showed that, this request was abandoned by Duke, was not a final requirement, and was not inserted in the sublease which was finally submitted to Caplan for approval. An inspection of this final proposed sublease, Exhibit L & B-5, which is in the record, proves this statement to be correct.

I am of the opinion that the trial judge was manifestly erroneous in his conclusions and, for these reasons, I respectfully dissent from the views expressed in the majority opinion, insofar as they contravene those of mine expressed above. Accordingly, I would reverse the decision of the trial judge and would find for the defendant, Latter & Blum, Inc.

      . Lines 113-115 of the lease are as follows: "Lessee is not permitted to rent or sub-let or grant use or possession of the premises to any other party without the written consent of the Lessor, said consent shall not be unreasonably withheld, and then only in accordance with the terms of this lease." (Emphasis added)

      . Lines 90-95 provide:
      Should the premises be vacated or abandoned by Lessee because of ejectment for breach hereof,
        or otherwise, or should the Lessee begin to remove personal property or goods to the prejudice of the Lessor’s lien, then the rent for the unexpired term, with Attorney’s fees, shall at once become due and exigible, and Lessor, at his option, has the right to cancel the lease, or re-enter and let said premises for such price and on such terms as may be immediately obtainable and apply the net amount realized to the payment of the rent. (Emphasis added)

      . Lines 119-130 provide, in part:
      Should the Lessee at any time violate any of the conditions of this lease, or discontinue the use of premises for the purpose for which they are rented, or fail to pay the rent, ... then, at the option of the Lessor, the rent for the whole unexpired term of this lease shall at once become due and exigible; and Lessor shall have the further option to at once demand the entire rent for the whole term, or to immediately cancel this lease, or to proceed for past due installments only, reserving its right to later proceed for the remaining installments, all without putting Lessee in default, Lessee to remain responsible for all damages or losses suffered by Lessor, Lessee hereby assenting thereto and expressly waiving the legal notices to vacate the premises. (Emphasis added)