author: BARRY, Judge. SCHOTT, Judge,

text:
    SALLY BEAUTY COMPANY v. Lester BARNEY and Elnora Barney.
    No. CA-0875.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    B. Franklin Martin, III, Ellis B. Murov, McGlinchey, Stafford, Mintz & Cellini, New Orleans, for plaintiff-appellant.
    Bruce C. Waltzer, Thomas M. Derose, New Orleans, for defendants-appellees.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   BARRY, Judge.

Plaintiff, Sally Beauty Company, appeals a partial summary judgment which dismissed four causes of action relative to an alleged noncompete agreement.

Sally sells and distributes professional beauty care products on a wholesale and retail basis in eight states. Defendant, Lester Barney, was employed by Sally since 1970 as the manager of one of its stores. Up to October, 1981 Sally’s store, managers were paid a salary and other benefits plus bonuses according to unwritten company policies based primarily upon sales in excess of quotas for certain time periods. Sally alleges that due to substantial sums expended on special training for store managers, the Company determined that bonuses would only be paid to store managers who would agree not to compete. On October 1, 1981 Sally sent to all managers a “Bonus Plan — Fiscal 1982” which set out guidelines to calculate bonuses and included a “non-competition agreement.” It is undisputed that Barney did not sign this document. On January 15, 1982 Sally issued an “Amendment to Bonus Plan-Fiscal 1982” which provided for partial bonuses in addition to full bonuses; however, it did not contain nor make reference to a non-compete agreemént. Barney signed the Amended Plan on January 22, 1982. Sally paid Barney $12,925.08 in bonuses between October 1, 1981 and December 2, 1982 when Barney resigned.

In 1979 Barney and his wife opened a retail store (“Barney’s Store”) approximately one block from the Sally outlet which Barney managed. Until September 1982 Barney’s Store sold products manufactured or distributed by the Shackley chain; thereafter, Mrs. Barney purchased Sally products at her usual beautician’s discount and offered them for sale at Barney’s Store. On December 2, 1982 two Sally officials told Barney to close Barney’s Store because it was in direct competition with the Sally outlet. Barney refused and resigned from Sally that same day.

The demands in Sally’s lawsuit which were dismissed by partial summary judgment involve:

—Specific performance of the noncom-pete agreement by enjoining Lester and Elnora Barney from selling professional beauty care products within 200 miles for two years;
—$10,000 in liquidated damages;
—Return of bonuses premised on the noncompete agreement and —Return of bonuses based on unjust enrichment.
The District Judge ruled:
Attached to plaintiff’s petition are two documents, of which one is an unsigned non-competition agreement and the other a signed amendment to a bonus agreement. The plaintiff claims that the signature on the bonus agreement, as amended and which is attached to the unsigned competition agreement, amounts to a signature on the non-competition agreement.
The Court disagrees with the plaintiff’s position, and therefore grants a partial summary judgment as to the first four causes of action of plaintiff’s petition.

Plaintiff argues the following material facts are in dispute to circumvent the partial summary judgment:

Did Barney agree not to compete with Sally?
Did Sally spend substantial sums of money for special training of Barney?
Were bonuses paid to Barney based on the non-compete agreement?
Was Barney unjustly enriched?

The first three pages of the original Bonus Plan set forth a detailed schedule by which a store manager could earn bonuses. The third page also enumerated company policies which, if violated, would reduce bonuses. The last two lines of the Bonus Plan are on the fourth page. Up to this point there is no mention of a noncompete covenant. Thereafter the words “NON-COMPETITION AGREEMENT” are centered in bold type. There are no words which link or connect the Bonus Plan to the noncompete agreement, such as “The above Bonus Plan is contingent upon acceptance of the following.” The form and style of the noncompetition agreement are in sharp contrast to the Bonus Plan. In particular, where the Bonus Plan is in ordinary prose interspersed with examples, the agreement uses formal, legal terminology and has blank lines with Lester Barney’s name inserted. The agreement is on three pages followed by a signature and date line.

We find no expressed or implied connection between the Bonus Plan and the non-compete agreement. On their face each is a separate entity. The signature line appears to relate only to the noncompete agreement. Nothing suggests that bonuses would be contingent on the agreement not to compete.

Sally argues the Amended Bonus Plan incorporated the original Bonus Plan and the Amended Plan is meaningless without reference to the original. Sally urges that a document which references or refers to another for its terms incorporates the terms as though they were inserted in the former. Action Finance Corporation v. Nichols, 180 So.2d 81 (La.App. 2d Cir.1965). Sally maintains it should be allowed to depose Barney to ascertain his intent when he signed the amended agreement. Sally claims that Barney impliedly agreed to the noncompete agreement by continuing to manage the Gentilly Store and accepting bonuses. LSA-C.C. Art. 1811.

Barney did sign the Amended Bonus Han but that document also fails to mention the noncompete agreement. Barney claims and Sally denies that bonuses were paid before he signed the Amended Plan. Regardless, we find no nexus between the Bonus Plans and the agreement not to compete. Therefore, Barney’s signature on the Amended Plan and his receipt of bonuses did not evidence an expressed or implied acquiescence of the restrictive covenant.

The other dismissed causes alternatively seek reimbursement of bonuses paid in 1982. Sally asserts the reason or principal cause to pay bonuses was its understanding that Barney agreed not to compete. Sally argues if the noncompete agreement was not in force, which was the primary reason to pay bonuses, then Sally is entitled to return of the bonus money. In the alternative, the retention of bonuses by Barney amounts to unjust enrichment.

We disagree. Since there was no agreement not to compete nor connexity between the Bonus Plan and/or Amended Plan and the compete covenant, it is untenable to conclude rejection of one eliminates the other. The only consideration for bonuses was the amount of sales.

Summary judgment is often inappropriate to show the intent of parties to a contract. Nettles v. Bowlin, 386 So.2d 658 (La.App. 1st Cir.1980), Hall v. Management Recruiters of New Orleans, Inc., 332 So.2d 509 (La.App. 4th Cir.1976), Dixie Campers, Inc. v. Vesely Company, 398 So.2d 1087 (La.1981). However, under these facts the intent is clear. There are no uncertainties that require the trial court to go beyond the evidence. See Dixie Campers, supra. Mere formal allegations without substance will not preclude the granting of summary judgment. “When the evidence submitted on the motion leaves no relevant, genuine issue of fact, and when reasonable minds must inevitably conclude that the mover is entitled to judgment on the facts before the court, the motion for summary judgment should be granted.” Acme Refrigeration of Baton Rouge, Inc. v. Caljoan, Inc., 346 So.2d 743, 748 (La.App. 1st Cir.1977). LSA-C.C.P. Art. 966, 967.

The district court judgment is affirmed at appellant’s cost.

AFFIRMED.

SCHOTT, J., concurring for additional reasons.

SCHOTT, Judge,

concurring for additional reasons:

I have signed and agree with the majority opinion in its entirety. In addition to the views expressed therein I believe appellant’s position to be contrary to the law of this state emanating from LSA-R.S. 23:921 providing as follows:

“No employer shall require or direct any employee to enter into any contract whereby the employee agrees not to engage in any competing business for himself, or as the employee of another, upon the termination of his contract of employment with such employer, and all such contracts, or provisions thereof containing such agreement shall be null and unenforceable in any court, provided that in those cases where the employer incurs an expense in the training of the employee or incurs an expense in the advertisement of the business that the employer is engaged in, then in that event it shall be permissible for the employer and employee to enter into a voluntary contract and agreement whereby the employee is permitted to agree and bind himself that at the termination of his or her employment that said employee will not enter into the same business that employer is engaged over the same route or in the same territory for a period of two years.”

Appellant acknowledges that Barney never signed the non-competition agreement but contends that his signature on the amendment to the bonus plan constituted some sort of an implied intention to enter into the non-competition agreement which had been submitted to Barney and which he had declined to sign three months previously. Appellant also argues that Barney’s continuing with his employment and accepting bonuses after the non-competition agreement was tendered to him constituted some sort of an implied acceptance of the contract.

In Louisiana non-competition agreements are disfavored and are deemed contrary to public policy, except under the particular circumstances outlined in R.S. 23:921. National Oil Service, etc. v. Brown, 381 So.2d 1269 (La.App. 4th Cir.1980). “In the absence of a covenant not to enter into a competitive business, fair competition of itself will not be restrained” and where there is such a contract, “it will be strictly construed.” Desselle v. Petrossi, 207 So.2d 190 (La.App. 4th Cir.1968).

Appellant has not cited any Louisiana case, and I am not aware of any, where R.S. 23:921 was construed to authorize non-competition contracts not specifically signed by the employee. Surely, the wording of the statute strongly implies that any such contract must be in writing and must be signed by both parties. Strict construction does not favor an interpretation which would bind an employee to such a contract on some theory of implied acquiescence. If appellant wishes to take advantage of the benefits made available by R.S. 23:921, it was appellant’s responsibility to insist on Barney’s entering into the contract by signing it. Appellant’s failure to take such action resulted in the contract’s nullity and unenforceability.

      . Elnora Barney's affidavit states she has been a licensed beautician for many years and operated a beauty salon where she used and sold items purchased from the Sally store managed by her husband.


source: Caselaw Access Project

author: BYRNES, Judge.

license: Public Domain

text:
    Melvin CARTER v. HIGHLANDS INSURANCE COMPANY and Brown and Root, Inc.
    No. CA 1008.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Badeaux, Discon, Cumberland & Shear-man, J. Michael Cumberland, New Orleans, for plaintiff-appellant.
    Christovich & Kearney, Thomas C. Cow-an, New Orleans, for defendant-appellant.
    Before BYRNES, REDMANN and KLEES, JJ.
   BYRNES, Judge.

This is an appeal from a judgment of the trial court dismissing appellant, Melvin Carter’s, workers compensation suit against Brown & Root Inc. and its compensation insuror, Highlands Insurance Co. We affirm.

On August 27, 1981 Melvin Carter injured his leg while working for Brown & Root Inc. The injury occurred when Carter’s leg was caught between rolling pipes, resulting in a laceration and soft tissue injury to his left leg. It is undisputed that this injury occurred in the course and scope of Carter’s employment by Brown & Root and that medical expenses and weekly disability benefits were paid until Jan. 15, 1982.

Carter received emergency medical treatment and was operated on by Dr. Horn, an orthopedic surgeon who treated the wound itself, and Dr. Dupin, a plastic surgeon who performed a skin graft to close the wound. Follow up treatment was given by Dr. Du-pin and Dr. Horn’s associate, Dr. Rozas. By mid-January 1982 both of appellant’s treating physicians felt that his injuries had healed satisfactorily and that he could return to work without restrictions. Relying on the opinions of these physicians, Highlands stopped weekly disability payments.

When Carter tried to return to work in January and February of 1982 he complained of pain and was sent back to his treating physicians. They found no objective evidence to substantiate Carter’s subjective complaints. Moreover, Carter’s leg was again evaluated for residual disability or limitations but none were found.

In March 1982, Carter was seen by Dr. Kroll, a general surgeon. Dr. Kroll felt that the skin graft made Carter’s leg inherently weak and more susceptible to future injury. On the basis of this assumption he concluded that Carter had a 10 to 20% disability to his left leg.

When Brown & Root received this report Carter was sent back to Dr. Rozas and Dr. Dupin. They once again found no residual disability from either an orthopedic or a plastic surgeon’s point of view. Suit was filed in April of 1982.

The trial judge ruled in favor of Brown & Root and dismissed Carter’s suit with, prejudice. On appeal Carter has abandoned his claim for total disability, but seeks a schedule award under La.R.S. 23:1221(4)(h), (o) for loss of function in his leg. Recovery under that section is not predicated on disability but rather on proof of impairment in the use or function of the member in question. Wright v. Red Ball Freight, 315 So.2d 344 (La.App.1975).

The evidence of impairment in this case consisted of the report of Dr. Kroll and the testimony of appellant. Contra-dieting this evidence were the reports of Dr. Dupin and Dr. Rozas. In a letter to defense counsel dated January 25, 1982, Dr. Dupin stated; “I have examined his [Carter’s] leg and am unable to determine any problem with the function of the extremity.” (Emphasis added) In September 1982, Dr. Rozas reported, that there are no findings from an orthopedic standpoint to render and [any] sic. disability at all regarding the ankle and I feel he can 'perform work duties at this time with no limitations.” (Emphasis added)

Later in a report dated April 5, 1982, he again stated that, ... “from an orthopedic standpoint there is no functional orthopedic disability.” (Emphasis added)

It is apparent from these statements that neither of appellant’s treating specialists felt that the functioning of Carters leg was impaired. Moreover, neither physician felt that the presence of the skin graft would limit appellant’s ability to return to work. The trial judge gave more weight to the opinions of these treating specialists than to that of Dr. Kroll and ruled in favor of Brown & Root. We see no error in this ruling.

The opinion of a treating physician is entitled to more weight than that of a doctor who is consulted only for purposes of litigation. Schouest v. J. Ray McDermott Inc., 411 So.2d 1042 (La.1982). Moreover, the opinion of a specialist is entitled to greater weight than that of a non-specialist. Schouest, supra.

In this case Dr. Rozas and Dr. Du-pin were not only the treating physicians but they were also specialists in their respective fields. Dr. Kroll was a general surgeon whose evaluation was based on one examination. Under these circumstances the trial judge was correct in concluding that Carter had not sustained his burden of proving by a preponderance of the evidence that the presence of the skin graft impaired the use or function of his leg or disabled him in any way.

Because appellant is not entitled to compensation we need not address his contention that he is entitled to penalties and attorney fees under R.S. 22:658.

For the foregoing reasons the judgment of the trial court is affirmed at appellant’s cost.

AFFIRMED.


text:
    Dorothy MITCHELL v. NEW ORLEANS PUBLIC SERVICE, INC., and Paul V. Landry.
    No. CA 0872.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Ortiz & Barriffe, Eugene Barriffe, Jr., New Orleans, for plaintiff-appellee.
    C.B. Ogden, New Orleans, for defendant-appellant.
    Before BYRNES, GARRISON and AUGUSTINE, JJ.
   BYRNES, Judge.

This is a personal injury action.

Dorothy Mitchell, plaintiff-appellee, sus--tained a twisted ankle after alighting from a bus operated by New Orleans Public Service, Inc. [NOPSI] and driven by Paul V. Landry. Judgment was rendered, by the Civil District Court, Parish of Orleans, in favor of plaintiff in the amount of $750.00. Defendants appeal, contending that the trial court erred in assessing damages for NOPSI’s alleged callousness toward the plaintiff after the accident.

Appellee answered the appeal contending that the trial court had erred in finding that the defendants exercised reasonable care in allowing her to alight from the bus. She argues that the court also erred in denying her claim for medical expenses, lost wages, or general damages on the basis of a finding that her injury was not caused by the actions or inactions of defendant, and prays that the award be increased from $750.00 to $5,000.00.

FACTS

On October 7, 1980, plaintiff took a NOP-SI bus to work. When she exited from the bus at Canal and Carondelet Street her ankle twisted and she fell.

A NOPSI employee, who was working on the street car tracks, came to her aid. The driver of the bus called his supervisor and within several minutes NOPSI officials and the police were at the scene of the accident. The plaintiff was taken by the police to Charity Hospital for treatment.

NOPSI’S NEGLIGENCE

The issues raised by both parties revolve around the trial court’s determination that the defendants were not negligent. We affirm that portion of the decision.

It is well settled that public carriers are charged with the highest degree of care in transporting their passengers to their destination safely. Galland v. New Orleans Public Service, Inc., 377 So.2d 84 (La.1979); See also, Pilpovich v. New Orleans Public Service, Inc., 422 So.2d 262 (La.App. 4th Cir.1982). The mere showing of an injury to a passenger and failure to reach his destination imposes a burden on the carrier to exculpate itself from negligence. Galland, supra. However, once it is shown that the passenger has reached his destination safely the carrier’s degree of care is limited to that of the “reasonable man.” Wittenberg v. New Orleans Public Service Inc., 422 So.2d 252 (La.App. 4th Cir.1982). It has been held that a passenger has reached his destination once he has taken at least one step from the bus safely. Wittenberg, supra.

The record clearly shows that Mrs. Mitchell’s fall occurred when her legs crossed after alighting from the bus. The plaintiff’s testimony establishes that she fell after she had taken at least one step from the bus one of her feet had touched the street. Therefore, the duty of care which NOPSI owed to Mitchell was no greater than that of the “reasonable man.” The trial court’s determination that her injuries were not caused by the actions or inactions of the defendant was correct.

The record reflects that after the plaintiff fell, a public service worker came to her aid. The bus driver inquired as to the cause of the fall, instructed the other passengers to exit the bus, and told the public service worker that he was going to call his supervisor. NOPSI and the police arrived within several minutes and Mrs. Mitchell was carefully placed in the police car and transported to Charity Hospital. Mrs. Mitchell testified that the bus driver did not inquire as to how she felt or if he could do anything to help her.

While the trial judge felt that the driver’s limited concern about Mrs. Mitchell’s condition may have been somewhat callous we cannot say that this attitude caused Mrs. Mitchell any injury. NOPSI acted swiftly, and within the “reasonable man” standard in attending to her needs after she exited the bus. Because NOPSI acted reasonably and because its actions did not cause Mrs. Mitchell any injury we reverse the award of $750.00 as being an abuse of discretion and having no foundation in law.

For the foregoing reasons the decision of the trial court is affirmed in its holding regarding NOPSI’s negligence and reversed in its award of $750.00 to plaintiff.

All costs of this appeal are to be borne by appellant.

AFFIRMED IN PART, REVERSED IN PART.


text:
    STATE of Louisiana v. Joseph ROBINSON and Brenda Brown.
    No. KA 0996.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee.
    Dwight Doskey, Orleans Indigent Defender Program, New Orleans, for defendant-appellant.
    Before BYRNES, GARRISON and AUGUSTINE, JJ.
   BYRNES, Judge.

Joseph Robinson and Brenda Brown, were charged by Bill of Information with attempted simple burglary of an inhabited dwelling, a violation of La.R.S. 14:27 and 14:62.2. On April 28, 1982 Robinson was tried in the Criminal District Court, Orleans Parish and found guilty by a unanimous twelve person jury. Brown was acquitted. Robinson was sentenced to six years with credit for time served. On June 9, 1982 he was found guilty as a multiple offender and sentenced to twelve years at hard labor.

ASSIGNMENT OF ERROR

Appellant raises one issue on appeal. He contends that the trial court erred in refusing to permit prospective jurors to be questioned regarding the types of cases on which they had previously sat and the verdicts rendered in those cases.

FACTS

The alleged attempted burglary took place on September 18, 1981 at 3241 Law Street in New Orleans. On that day Robinson and Brown were twice observed loitering across the street from the house. That evening when the residents were not at home, a silent burglar alarm was triggered and the police arrived at the house. When the residents returned they observed the police escorting the defendants away from the house. .

One of the arresting officers testified that he and his partner responded to a silent alarm at 3241 Law Street. When they arrived he observed the defendants coming toward him from the back of the house. He apprehended the suspects and went to the back of the house where he found an open window, a broken piece of wood (used to secure the window), and a screw removed from the burglar bars. An open pocket knife was found in Robinson’s back pocket.

The other officer testified that he observed Brown and Robinson at the rear window. Robinson was using a knife to tamper with the burglar bars. As he approached the defendants they saw him and quickly walked to the opposite side of the building, where they were apprehended.

The record establishes further that the defendants were identified as the same people who were twice seen observing the residence on the day of the attempted burglary. The resident of the house testified that the window was closed and the wooden bar in place when he left the house. He also testified that he did not know the defendants nor did he give them permission to enter the premises.

VOIR DIRE

Appellant contends that the trial court erred in denying him the right to ask prospective jurors the type of cases they had previously sat on and the verdicts which they had rendered therein.

It is well settled that a defendant is permitted to question a prospective juror during voir dire as to whether they have previously served on a criminal jury, what the charge was, what the verdict was, etc. State v. Holmes, 347 So.2d 221 (La.1977). However, the scope of the examination is subject to the discretion of the trial judge. State v. Age, 417 So.2d 1183 (La.1982) and State v. Vinet, 352 So.2d 684 (La.1977). In Vinet the court held that:

“Undoubtedly the defense is entitled to wide latitude in examining prospective jurors. The right is, however, to be exercised within the discretion of the trial judge who determines the scope of the examination under the prevailing facts and circumstances. La.Code Crim.Pro. Art. 786. And when the question arises whether voir dire examination has been unduly restricted,- the disallowance of a proper question is not automatically reversible. In evaluating the fairness of the ruling the entire examination must be considered. State v. Monroe, 329 So.2d 193 (La.1976); State v. Jones, 315 So.2d 650 (La.1975). (Emphasis supplied)

In the case at bar, defense counsel was not permitted to ask the specific questions set forth in State v. Holmes, supra. The trial judge limited the inquiry to whether the prospective juror had served on a criminal jury and whether such service resulted in the formation of prejudices which would interfere with their rendering a fair and impartial verdict in the defendant’s case. Appellant contends that this limitation prevented him from conducting a complete voir dire and gave an unfair advantage to the prosecution.

In a similar case, State v. Nicholas, 397 So.2d 1308 (La.1981), the court concluded that, given the evidence and viewing the voir dire as a whole, any error by the trial judge in limiting the scope of defendant’s voir dire was harmless. The court in Nicholas stated:

[Cjounsel makes no allegation that the trial court otherwise curtailed voir dire, and the restriction here, standing alone, does not appear to deprive defendant of his right to full voir dire under LSA-Const., Art. 1 Sec. 17... If there was error, therefore it essentially was harmless error. 397 So.2d at 1317.

In the instant case, appellant makes no allegation that the voir dire was limited in any other manner. Defense counsel did question the jurors regarding possible prejudices formed as a result of prior jury service. The jurors answered that they were capable of rendering a fair and impartial verdict. Viewing the voir dire examination as a whole, we find that any error committed by the trial judge was harmless.

SUFFICIENCY OF THE EVIDENCE

To obtain a conviction in this case the State had to prove that: (1.) an attempt was made to enter an inhabited dwelling without authorization; (2.) with the specific intent to commit a felony or theft therein. R.S. 14:27 and 14:62.2.

In reviewing the sufficiency of the evidence this court must view the evidence in the light most favorable to the prosecution, to determine if any rational trier of fact could have found that the essential elements of the crime were proven beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Further, where circumstantial evidence forms the basis for the conviction every reasonable hypothesis of innocence must be excluded. R.S. 15:438; State v. Shapiro, 431 So.2d 372 (La.1983).

In the case at bar, Robinson was seen tampering with the burglar bars with a knife. A screw was found missing from the bars and an open pocket knife was found in Robinson’s back pocket. The window was open and the wooden bar used to secure it was broken. Defendant was not given permission to enter the premises. These facts clearly support the conclusion that an attempt to enter an inhabited dwelling was made without the inhabitant’s permission.

It is well settled that the “intent” required to support a conviction under R.S. 14:62.2 is the specific intent to commit a felony or theft within the premises. State v. Ricks, 428 So.2d 794 (La.1983). Specific intent is defined as:

... that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act. La.R.S. 14:10.

If circumstantial evidence is used to prove specific intent every reasonable hypothesis of innocence must be excluded. La.-R.S. 15:438.

In the case at bar the police witnessed the defendants attempting to gain access to the house. The defendants fled when they saw the police. There was no evidence that their ability to form specific intent was hampered because of intoxication or disorientation. See State v. Ricks, supra and State v. Jones, 426 So.2d 1323 (La.1983). Moreover, Robinson was found with a burglary tool in his back pocket. Finally, the only explanation offered for their presence was that they had entered the yard because Brown had to urinate. This explanation apparently did not convince the jury which unaminously concluded that Robinson and Brown had attempted to burglarize the house.

The standards of Jackson v. Virginia, supra and La.R.S. 15:438 have been met. The evidence was sufficient to prove the elements of the crime and exclude any reasonable hypothesis of innocence.

For the foregoing reasons the verdict of the trial court is affirmed.

AFFIRMED.


author: CIACCIO, Judge.

text:
    CITY OF NEW ORLEANS v. CENTURY MANAGEMENT, INC., d/b/a Marie Antoinette Hotel and Dauphine Toulouse Investment Company, Inc.
    No. CA 0797.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Salvador Anzelmo, Caryl H. Vesy, New Orleans, for plaintiff-appellant.
    Henry L. Klein, P.C., New Orleans, for defendants-appellees.
    Before REDMANN, CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

On April 6, 1981, the City of New Orleans brought suit to enjoin defendants from operating the premises located at 618-20 Dauphine Street as a hotel. Defendants, the developers and managers of the Dauphine Street property, filed an exception to the City’s petition, arguing that the action had prescribed pursuant to the two year prescriptive period of La.R.S. 9:5625. The trial court maintained the exception of prescription and dismissed the City’s suit. The City has appealed. We reverse.

In 1975, the owners of the Marie Antoinette Hotel, 827 Toulouse Street, conceived of an idea to construct a passageway-through a wall separating the hotel and the courtyard of the property at 618-20 Dau-phine Street. The Dauphine Street property contained a two-story building which housed eight apartments. Defendants intended to renovate the eight apartments and represented to the City that the passageway would provide easy access for the apartment tenants to utilize the hotel’s public facilities.

Recognizing the need for City approval of the proposed development, a series of communications began between the City and the project architects. Under the comprehensive zoning ordinances for the City of New Orleans, Ordinance 4264 M.C.S., 618-20 Dauphine is in a Zone VCR-1 (Vieux Carre Residential) and its use is governed by Article V, Section 21.2 of the ordinance. Use of the property as a hotel is not permitted. The City, therefore, requested and received numerous assurances from the architects that the renovation of the Dauphine Street property was to facilitate continued use as apartments and not use as a hotel.

The City ultimately granted approval for the project. The developers secured the required permits and construction began.

In September, 1977, the director of the Vieux Carre Commission questioned the intended use of the Dauphine Street Property and the City issued a stop work order. After being reassured that the Dauphine Street property would continue to be operated as apartments and not as a hotel, the City rescinded the stop work order. Construction resumed and in late 1977 defendants began renting the eight units.

The City’s petition, filed April 6, 1981, alleges that in November, 1979, defendants began operating 618-20 Dauphine Street, not as apartments, but as a hotel in violation of the zoning laws.

In answer to the City’s petition, defendants pleaded that the action had prescribed. After a hearing was held on the plea of prescription, the trial judge maintained the exception.

Defendants-exceptors bear the burden of proving their plea of prescription. Parish of Jefferson v. Groetsch, 256 So.2d 722 (La.App. 4th Cir.1972); Irland v. Barron, 230 So.2d 880 (La.App. 2d Cir. 1970). La.R.S. 9:5625 draws a distinction as to the time prescription begins to run between violations of use regulations and violations of other restrictions and regulations. Actions concerning use regulations must be brought within two years from the date the designated governmental authority first had knowledge of the violation. State v. Baudier, 334 So.2d 197 (La.1976); Parish of Jefferson v. Groetsch, supra; Irland v. Barron, supra. The City’s petition alleges violation of a use restriction, and, therefore, the requirement of knowledge in the proper governmental authority is a necessary element of the proof of defendants who are pleading prescription under the statute. Irland v. Barron, supra.

Defendants present two arguments in support of their plea of prescription. Both arguments are premised on the defendants’ allegation that the operation of the Dau-phine Street property has not changed since they began operating it in 1977. Defendants’ first argument is that from 1977 until the present, they have continuously operated 618-20 Dauphine Street as apartments, not as a hotel, and, thus, have not violated any zoning laws. Defendants’ second argument is that the City had knowledge of defendants’ operation more than two years prior to the filing of the petition and therefore, the action has prescribed under the provisions of La.R.S. 9:5625.

Defendants' first argument, that there has been no violation, will not support their plea of prescription. Prescription does not begin to run until the City has knowledge of the use violation. If there has been no violation, there can be no knowledge of a violation, and prescription cannot begin to run. The issue of whether there has been a violation must be determined on the merits.

Defendants’ second argument could support the plea if its elements are proven. That is, if defendants prove continuous, unchanging use, and, that the City had knowledge of how defendants were using 618-20 Dauphine Street more than two years prior to filing the petition, the action is prescribed, regardless of how defendants used the property. Defendants presented evidence of the City’s knowledge of the defendants’ plans, and fulfillment of those plans, to renovate the Dauphine Street apartments and to construct the passageway from the hotel to the courtyard of the apartments, to give the apartment tenants easy access to the hotel’s public facilities. Defendants further presented evidence that in December, 1977, shortly after tenants began occupying 618-20 Dauphine Street, the City inspected the premises for the purposes of approving the construction of a fence on the Dauphine Street property.

The evidence produced also presented the City’s continuing concern, during the renovations, that 618-20 Dauphine Street would be used as apartments and not as a hotel.

The evidence presented a pattern of communication between defendants and the City during construction. During this time defendants continually assured the City that their intention was to use 618-20 Dau-phine Street as apartments. There is no evidence to indicate that the City had any knowledge of how defendants actually used the property following the 1977 occupancy date. Without evidence that the City had knowledge as to how defendants were using 618-20 Dauphine Street, the defendants did not carry their burden of proof on the plea of prescription.

Because there is no evidence in the record to indicate that the City had knowledge of the alleged violation of a use restriction at 618-20 Dauphine Street, more than two years prior to the filing of this suit, we must conclude that the trial judge erred in maintaining the exception of prescription. Accordingly, the judgment of the trial court is reversed, the exceptiori of prescription is overruled and the matter is remanded to the trial court for further proceedings not inconsistent with this opinion.

REVERSED, EXCEPTION OF PRESCRIPTION OVERRULED, AND REMANDED.


text:
    Inez S. GIBBONS v. NEW ORLEANS PUBLIC SERVICE, INC.
    No. CA 0859.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      James Maher, III, New Orleans Public Service, Inc., New Orleans, for defendant and appellant.
    John G. DeRussy, New Orleans, for plaintiff and appellee.
    Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

Defendant-appellant, New Orleans Public Service, Inc., appeals from a trial court judgment which awarded plaintiff damages for injuries allegedly sustained in an automobile accident. Appellant argues that the trial court committed two errors affecting the judgment: (1) The damage award is excessive; and, (2) The jury should not have been dismissed, and the verdict should not have been rendered by the trial judge alone. We find merit in appellant’s argument that the jury should not have been dismissed. We, therefore, remand this matter to the trial court with instructions that the trial court afford defendant a jury trial.

Plaintiff filed a petition alleging defendant’s liability for damages allegedly sustained by plaintiff in an automobile accident. Defendant filed an answer to plaintiff’s petition wherein defendant requested a trial by jury.

The following jury order was signed by the district court:

JURY ORDER
Let there be a trial by JURY upon applicant for jury trial depositing in the registry of the court the sum of $192.00 for each day the court estimates the trial will last, the said deposit to be made on or before the date of trial, prior to the commencement of the trial.

The record does not contain any indication that the court ever estimated the number of days the trial would last. Nevertheless, prior to the commencement of the trial, defendant deposited a sum appropriate for a single day of trial.

Trial commenced on October 19th. On this first day of trial, all of the witnesses testified, except one. Trial was recessed until the next morning.

On the morning of October 20th, the parties and the trial judge discussed settlement possibilities, but were unable to reach an agreement. Trial resumed and defendant called its last witness. Prior to this witness taking the stand, however, plaintiff’s counsel, after a bench conference with the judge, moved the court to dismiss the jury for defendant’s failure to pre-pay jury costs for the second day of trial.

Defendant’s counsel informed the court that shortly someone would arrive with a check to cover the jury costs for the second day of trial. The trial judge was unimpressed and ordered the jury dismissed on the ground that “under the law the Jury costs must be paid in advance of the trial on a daily basis.” Defendant objected to dismissing the jury and asked for time to apply for writs. The judge refused this request for time, refusing to delay the trial. The trial judge then dismissed the jurors but advised them that they would be paid as if they had served on the second day of trial.

Defendant’s final witness testified to the court alone. Plaintiff testified in rebuttal. Both counsel waived closing argument. The judge then gave his verdict from the bench, finding in favor of plaintiff and awarding her damages. The judge also taxed defendant for two days of jury costs. By this action the trial judge denied defendant a jury trial but made defendant pay two days of jury costs.

We find no legal basis for the trial judge’s notion that “Jury costs must be paid in advance of the trial on a daily basis.” La.R.S. 13:3105 controls the procedure for the payment of the costs associated with a jury trial in Orleans Parish Civil District Court. Section 10 of Rule 10 of the Rules of the Civil District Court for the Parish of Orleans supplements the statutory provisions. These legal provisions read as follows:

Sec. 3105. Compensation of jurors in civil cases
A. Those serving as jurors in the trial of civil cases triable by a jury in the Civil District Court for the Parish of Orleans shall be entitled to compensation of sixteen dollars each for each and every day, or part of a day, on which they serve as jurors in any civil case, the said sum total to be charged as costs and paid by the party cast for such costs. The party praying for the jury shall deposit with the clerk of the civil district court the sum of sixteen dollars as jury costs. In addition, prior to the commencement of the trial, the party praying for the jury shall deposit in the registry of the court the sum of one hundred ninety two dollars for each day the court estimates the trial will last. No case triable by jury shall be placed on the court’s jury trial docket or fixed for trial unless the sixteen dollar deposit is made. No such trial by jury shall commence until the additional deposit provided for herein is made, (emphasis supplied)
Section 10. All orders permitting the trial by jury shall be conditioned upon applicant for jury trial depositing in the registry of the court the sum of $192.00 for each day the court estimates the trial will last, the said deposit to be made on or before the date of trial prior to the commencement of the trial.
Upon the termination of the jury trial each juror shall be paid $16.00 per day. for each day or part of day served, (emphasis supplied)
(Paragraphs B. and C. of La.R.S. 13:3105 do not assist in the analysis of this ease:)

Once a case has been placed on the court’s jury trial docket, the party requesting the jury trial must deposit, prior to the commencement of trial, one hundred ninety-two dollars for each day the court estimates the trial will last. The statute instructs the court not to begin the trial until this deposit has been made. No other sanction is provided.

The minimum deposit to preserve a requested trial by jury would be that amount appropriate for a one day trial, i.e. one hundred ninety-two dollars, assuming that the sixteen dollars required to have the case placed on the jury docket is deposited. In the absence of a trial court estimate of the duration of the trial, defendant made the appropriate additional deposit prior to the commencement of trial. Once the deposit had been made, the trial could begin.

Plaintiff has cited two cases for the proposition that if the applicant for trial by jury does not timely file the bond required to support his application, the right is extinguished and the opposing party has the right to demand a trial by the court alone. See: Becker v. Allstate Insurance Company, 307 So.2d 101 (La.1975) and Latino v. Rush, 300 So.2d 659 (La.App. 4th cir. 1974). We point out that the law has changed since these decisions were rendered. Prior to its amendment by Act 233 of 1975, La. R.S. 13:3105 provided:

“... If such deposit and bond is not deposited and filed within the time fixed for so doing by the court, the opposing party shall have a right to demand that the case be tried by the court, rather than by a jury.”

The law no longer contains this provision, thus, it is no longer available for use. Additionally, we note that the only time limit upon defendant for depositing the additional daily costs was that the deposit be made prior to the commencement of trial. Defendant made the deposit, the amount of which was not challenged by the court or the opposing party, before the trial began.

The trial in this case did begin. After the first day the trial judge ordered a recess until the next morning. On the morning of the second day the trial resumed, and proceeded to its conclusion.

In this case, the trial judge did not have any authority to dismiss the jury because of defendant’s failure to pay a second day of jury costs. The court is mandated to estimate the number of days the trial will last and not to begin the trial until the additional deposit corresponding to the court’s estimate has been made. Absent an estimate by the court, a deposit for a one-day trial is sufficient to allow trial to begin. Once the trial has begun, the jury shall not be dismissed because the length of the trial happens to exceed the number of days for which a deposit has been made. By dismissing the jury, without authority, the trial court improperly deprived defendant of its right to a trial by jury. La.C.C.P. Arts. 1731-1735. Preservation of defendant’s right to a jury trial can be accomplished, at this stage, only by remanding the case to the trial court for the purposes of conducting a jury trial.

Accordingly, the judgment of the trial court is annulled and the case is remanded to the trial court with instructions to afford defendant a trial by jury upon defendant depositing in the registry of the court, pri- or to the commencement of trial, the sum of one hundred ninety-two dollars for each day the court estimates the trial will last.

All costs of this appeal are to be paid by plaintiff-appellee. All other costs must await the final determination of this matter.

ANNULLED AND REMANDED.


text:
    Joe SIMMONS v. BOARD OF COMMISSIONERS FOR the PORT OF NEW ORLEANS.
    No. CA 0917.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      J. Paul Demarest, T.A., New Orleans, for plaintiff-appellant.
    Paul B. Deal, Jerald L. Album, New Orleans, for defendant-appellee.
    Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

The trial court rendered summary judgment in favor of defendant. Plaintiff has appealed. We affirm.

Plaintiff-appellant, Joe Simmons, alleged that he sustained injuries when a gate collapsed and fell on him while he was working at the Desire Street wharf as a longshoreman for Atlantic & Gulf Stevedores, Inc. Plaintiff sued the Board of Commissioners of the Port of New Orleans alleging that the Dock Board owned the gate. Relying on the provisions of La.C.C. Arts. 2815, 2817 and 2322, plaintiffs petition bases liability on the alleged negligence of the Dock Board as owners of the gate.

The Dock Board answered plaintiffs petition by denying ownership of the gate. The Dock Board further answered by alleging that the gate was built, owned and operated by plaintiffs employer, Atlantic & Gulf Stevedores.

During discovery proceedings, depositions were taken from A1 Hansen, Superintendent of Gear and Equipment for A & G, and Leonard Spalluto, chief of the Maintenance Division for the Dock Board. These two depositions along with some other documentary evidence, affidavits, and some photographs were placed in the record in connection with the hearing on the Dock Board’s motion for summary judgment. After considering the evidence, the trial judge granted defendant’s motion.

Plaintiff argues on appeal that the trial judge erred in granting summary judgment because there is a genuine issue as to material fact which should be resolved by a trial on the merits. Plaintiff-appellant contends that the facts concerning ownership, custody and control of the gate remain in dispute. The trial judge apparently found no genuine factual issue concerning the gate, and, neither do we.

La.C.C.P. Art. 966 provides that summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.

The evidence introduced in connection with the motion for summary judgment established that Atlantic and Gulf used the Desire Street wharf pursuant to a “Grant of First Call on Berth Privilege” issued by the Dock Board. The Grant incorporated by reference the provisions of the Dock Department Tariff. The Tariff provides that:

No installations on, or changes or constructions in, the assigned area of a First Call on Berth Privilege shall be made without first submitting the plans and specifications therefor to, and securing the written approval in advance, of Board; provided, that at the termination of the First Call on Berth Privilege by expiration, cancellation, or in any other manner, such installations, structures, or materials so placed in or on the said assigned area shall be promptly removed by Grantee at its own cost, risk and expense.

In late 1975, after experiencing some vandalism and some equipment damage, A & G requested approval from the Board of plans for construction, on the wharf, of a fence to provide space for storage and maintenance of equipment and gear. The Board approved the plans and A & G constructed the fence. The gate which allegedly collapsed on plaintiff was part of this fence.

In his deposition, Mr. Spalluto stated that Dock Board inspectors periodically inspect the wharf areas. Mr. Spalluto explained that the inspections focus upon property belonging to the Dock Board and that the inspectors are not concerned with the condition, maintenance or repair of property and equipment belonging to tenants. According to Mr. Spalluto, inspectors are concerned with damage to the wharf facility and not with any additional property brought onto the wharf by tenants. Fences installed by tenants are considered to be the tenant’s responsibility and are not inspected by the Dock Board inspectors. If A & G had wanted to remove the fence, it could have done so at any time.

Mr. Hansen testified in his deposition that A & G had the fence constructed, owned it and maintained it. That on occasions when the gate was knocked down A & G would have it replaced. And further, that when A & G would leave that wharf area, i.e. no longer be assigned there, it would remove the gate and fence as its own property.

Mr. Hansen also indicated that the fenced enclosure on the Desire Street wharf was used for storing equipment used by A & G for operations being conducted on the Congress Street wharf. He stated that the gates were locked and that only A & G personnel had access to the area; Dock Board personnel did not use or go into the area.

The fence established two sides of the enclosed area. The other two sides were the walls of the wharf warehouse. The fence posts were bolted to the cement warehouse floor. At the two locations where the fence contacted the warehouse walls, the fence was welded to the wall.

Sometime after plaintiff’s accident and prior to the hearing on the motion for summary judgment, A & G stopped using the Desire Street wharf and the fence was removed.

Contrary to plaintiff’s contention, we do not find any remaining issue as to material fact. The facts have been established. Whether the Dock Board was in a position of ownership, custody or control of the gate, so as to establish any Dock Board liability which might arise from the collapse of the gate, is a question of law. This question of law, nevertheless, must be answered before we can determine whether summary judgment was properly granted. That is, we must determine if the Dock Board is entitled to judgment as a matter of law.

Under the law applicable to this situation the Dock Board can be found to be liable for damage caused by the collapse of the gate (1) if the gate is considered a “building” and the Dock Board owned it at the time of its collapse (La.C.C. Art. 2322), (2) if the gate was in the Dock Board’s “custody” at the time of its collapse (La.C.C. Art. 2317), or (3) if the damage caused can be found to have happened by the Dock Board’s “fault” (La.C.C. Art. 2315) or to have been occasioned by the Dock Board’s “negligence”, “imprudence”, or “want of skill” (La.C.C. Art. 2316).

Plaintiff correctly argues that structures not necessarily intended for habitation, as well as necessary appurtenances to structures and moveables made immovable by attachment, which have fallen into ruin or are defective, have been held by the courts to be within the scope of La.C.C. Art. 2322. Olsen v. Shell Oil Company, 365 So.2d 1285 (La.1978); Cothern v. Larocca, 255 La. 673, 232 So.2d 473 (La.1970); Boudoin v. Schwegmann Bros. Giant Supermarket, 371 So.2d 370 (La.App. 4th Cir.1979). Plaintiff fails, however, in at least two respects, concerning his argument that the Dock Board, as owner-lessor of the wharf, automatically became the owner of the gate when the gate was installed by the lessee, A & G.

Plaintiff argues that the fence and gate were permanently attached to the wharf and, therefore, were owned by the Dock Board. Whether the fence and gate were permanently attached can be decided by looking to La.C.C. Art. 466, which provides:

Art. 466. Component parts of buildings or other constructions.
Things permanently attached to a building or other construction, such as plumbing, heating, cooling, electrical or other installations, are its component parts.
Things are considered permanently attached if they cannot be removed without substantial damage to themselves or to the immovable to which they are attached.

The evidence at the hearing established that the fence had been removed. The fence posts had been bolted to the floor of the warehouse and were apparently unbolted and removed. Where the fence contacted the warehouse walls, it had been welded in place. Photographs provided by plaintiff served to demonstrate that the fence had been removed without substantial damage. We find that the fence had not been permanently attached to the wharf and did not become a component part of the wharf.

The argument that the Dock Board owned the fence also falls when we consider La.C.C. Art. 495, which provides:

Art. 495. Things incorporated in, or attached to, an immovable with the consent of the owner of the immovable.
One who incorporates in, or attaches to, the immovable of another, with his consent, things that become component parts of the immovable under Articles 465 and 466, may, in the absence of other provisions of law or juridical acts, remove them subject to his obligation of restoring the property to its former condition.
If he does not remove them after demand, the owner of the immovable may have them removed at the expense of the person who made them or elect to keep them and pay, at his option, the current value of the materials and of the workmanship or the enhanced value of the immovable.

This article, as well as the agreement between A & G and the Dock Board, refer to A & G’s obligation to restore the wharf to its former condition upon termination of the Grant of First Call on Berth Privilege. Art. 495 indicates that, even if the fence were considered a component part of the wharf under Art. 466, A & G had the right to remove it. Approval of the Dock Board was required before A & G could install the fence. Approval was not required, however, to remove the fence; A & G could remove the fence at any time. A & G’s exclusive authority over the fence indicates that the fence was owned by A & G and not by the Dock Board. See: La.C.C. Art. 477.

Because the Dock Board did not acquire ownership of the fence, it cannot be held liable under La.C.C. Art. 2322 for any damage caused by the collapse of the gate.

Plaintiff also argues that the Dock Board had custody of the fence and is liable under La.C.C. Art. 2317 for damages caused by the collapse of the gate. The Dock Board did not own the fence; it neither constructed, nor participated in the construction of the fence; it did not inspect the fence, nor repair, nor participate in repairs of the fence. All responsibilities for the care and maintenance of the fence rested with A & G. All privileges of use of the fence rested with A & G. The Dock Board demonstrated no custodial interest in the fence. We find that the Dock Board did not have custody of the gate so as to be subject to liability under La.C.C. Art. 2317.

Plaintiff’s argument that the Dock Board’s fault or negligence caused the gate to collapse is premised on the Dock Board being either the owner or custodian of the gate. Because we have found the Dock Board to be neither the owner nor the custodian of the gate, this segment of plaintiff’s argument is not persuasive.

Having examined the possibilities for liability, we find no basis upon which the Dock Board could be held liable for any damages resulting from the collapse of the gate. The Dock Board, therefore, is entitled to judgment as a matter of law.

Because we have found no genuine issue as to material fact and have found the Dock Board entitled to judgment as a matter of law, we find that the trial court properly granted summary judgment. We, therefore, will not discuss the issue of whether La.R.S. 9:3221 allows the Dock Board to contract out of any liability for injuries resulting from any defect in the wharf facilities.

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

AFFIRMED.


text:
    STATE of Louisiana v. Willie DIXON.
    No. KA-0998.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Loyola Law School Clinic, Calvin Johnson, Supervising Atty., Bonnie C. Patterson, Student Practitioner, New Orleans, for appellant.
    William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Criminal Div., State of La., Harry F. Connick, Dist. Atty., Parish of Orleans, William R. Campbell, Jr., Asst. Dist. Atty., Parish of Orleans, New Orleans, for appellee.
    Before REDMANN, C.J., and CIACCIO and WILLIAMS, JJ.
   CIACCIO, Judge.

Defendant, Willie Dixon, was charged with the offense of armed robbery. R.S. 14:64. He was found guilty of attempted armed robbery and was sentenced to serve ten (10) years, at hard labor. The defendant appeals his conviction and sentence, requesting a review of the record for errors patent upon its face. The defendant’s conviction is affirmed and his sentence is amended, and as amended, is affirmed.

On the evening of January 8, 1983, at approximately 7:30 p.m., New Orleans Police Officer, Elphanous Malbrue, and a back-up patrolman, Officer Herbert Theodore, responded to a complaint at an armed robbery at Alonzo’s Grocery, located at 2200 Almonaster Street in New Orleans. Upon their arrival, they secured information concerning a description of the perpetrator of the crime. The policemen arrested Willie Dixon who met the description given to them by the owner of the grocery. Dixon was apprehended in the immediate vicinity of the crime scene, about 150 feet away. A search of the subject failed to reveal any weapons or money. He was taken by patrol car to Alonzo’s Grocery where he was identified by the store’s owner, Sophia Alonzo, as “the guy that just robbed me.”

The facts surrounding this incident are conflicting.

Sophia Alonzo, the owner of the grocery, testified that the defendant had come to the store earlier that day and inquired as to when the store closed. She stated she and her helper, Delfín Bernai, were working in the store, when the defendant returned at about 7:30 p.m. The defendant entered the back door of the grocery with his hand in his pocket. Ms. Alonzo was behind the cash register and Mr. Bernai was walking towards the back door after having collected the trash for the day. According to Ms. Alonzo, the defendant demanded money. Mr. Bernai, who did not understand English, continued walking. The defendant then put a knife to Mr. Bernai’s throat. Ms. Alonzo reacted by moving around the counter, grabbing the defendant’s arm and pleading with him not to kill Mr. Bernai. The defendant then pushed her against the counter and held the knife to her throat. Upon seeing this, Mr. Bernai began to fight with the defendant and sustained a cut on the hand. The owner of the store ran from the store to a neighbor’s house across the street where she summoned the police. She testified that the next day she ascertained that there was $173.00 missing from her cash register.

Delfín Bernai, a native Cuban, testified through an interpreter, that on the date of this incident he was putting out the trash when the defendant approached. He told the defendant the store was closed and tried to indicate this fact by standing in front of .the defendant to prevent his passage. The defendant pulled a knife out and aimed it at the store helper. The helper was stabbed in the hand with the serrated knife when he raised his hands attempting to protect his chest and head. Mr. Bernai stated that as he saw the defendant going toward Ms. Alonzo he threw himself at the defendant and hollered to the store owner to leave and call for help. Mr. Ber-nai also testified that he had seen the defendant earlier in the day. Mr. Bernai and Ms. Alonzo testified that the cash register’s alarm had been triggered during this incident.

The defendant, Willie Dixon, testified that he had been in the video room of Alonzo’s Grocery on the date in question. He stated that he lost 25$ in one of the machines. Dixon stated that he approached Mr. Bernai seeking a refund of his money but when he was told that he could not get a refund he left the store. He stated that he went to his brother’s house which was in the area. There he drank about a quart of vodka. He left his brother’s house and was going home when he again stopped in Alonzo’s Grocery seeking a return of his quarter. He stated that upon his return to the store he removed a fingernail file from his clothing to file his nails. The owner of the store began to scream and her helper grabbed his hand. The defendant testified that he knocked the store helper to the floor and left the store. He was arrested by the police a short time thereafter and returned to the store, where he was identified.

Our review of the record indicates an error in sentencing. No other errors discoverable by a mere inspection of the pleadings and proceedings, i.e. errors patent on the face of the record, have been found. La.C.Cr.P. Art. 920.

The defendant was convicted of attempted armed robbery. R.S. 14:64; 14:27. Armed robbery is punishable by “imprisonment at hard labor for not less than five years nor more than ninety-nine years, without benefit of parole, probation or suspension of sentence.” R.S. 14:64. One who attempts to commit the crime of armed robbery “... shall be fined or imprisoned or both, in the same manner as for the offense attempted”. R.S. 14:27D(3). When by law, a sentence must be imposed “without benefit of parole, probation or suspension of sentence”, the sentence is “unlawfully lenient” if it fails to specify these restrictions. See: State v. Telsee, 425 So.2d 1251 (La., 1983); but see State v. Napoli, 437 So.2d 868 (La.1983), and State v. Jackson, 439 So.2d 622 (La.App. 1st Cir.1983). It is clear that the sentencing provision of the armed robbery statute specifies that such a sentence is to be imposed “without benefit of parole, probation or suspension of sentence.” R.S. 14:64. Thus, the question becomes whether a sentence for attempted armed robbery must carry the same restrictions. (Emphasis Supplied). The Louisiana Supreme Court has concluded that such restrictions (i.e., “without benefit of parole, probation or suspension of sentence”) are also required in sentences imposed in cases of attempted armed robbery. State ex rel. Sullivan v. Maggio, 432 So.2d 854 (La.1983), citing State v. Patterson, 259 La. 508, 250 So.2d 721 (La., 1971). The Court in Patterson, reasoned that “an attempt is a lesser grade of the intended crime.” supra at 722. Furthermore, the Court stated at page 723:

In the case of “attempted armed robbery” the phrase “in the same manner” means that except for the term of imprisonment, which is specifically provided for, the other aspects of the fine or imprisonment shall be “in the same manner” as provided for armed robbery; that is, “at hard labor” and “without benefit of parole, probation or suspension of sentence.” To hold otherwise would render the words “in the same manner” virtually meaningless, for there is no other provision of the armed robbery punishment to which the attempt punishment can be likened.

In the instant case, since the defendant was sentenced to 10 years at hard labor with credit for time served, and no mention was made that the sentence was to be served without benefit of parole, probation or suspension of sentence, the sentence is illegally lenient and must be amended.

Additionally, we have reviewed this record for sufficiency of the evidence. State v. Raymo, 419 So.2d 858 (La., 1982). Upon viewing the evidence in the light most favorable to the State, we find that a rational trier of fact could have found the defendant guilty of each and every element of the crime of attempted armed robbery. R.S. 14:64; 14:27. That is, the prosecution produced evidence at trial showing that the defendant entered the grocery at closing time, threatened the owner and her helper with a knife and demanded that he be given money.

For the reasons assigned the defendant’s conviction is affirmed and the sentence imposed by the trial court is amended by providing that it shall be served without benefit of parole, probation or suspension of sentence. In all other respects, the sentence imposed by the trial judge is affirmed.

CONVICTION AFFIRMED; SENTENCE AMENDED, AND AS AMENDED, AFFIRMED.


author: LOBRANO, Judge.

text:
    Lionel MADERE v. Cynthia A. SERPAS and Allstate Ins. Co.
    No. CA-0795.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Jeff Perigoni, J. Wayne Mumphrey, Chal-mette, for Lionel Madere, appellant.
    Gerald J. Gallinghouse, Porteous, Haink-el, Johnson & Sarpy, New Orleans, for Allstate Ins. Co., appellee.
    Before SCHOTT, BARRY and LOBRA-NO, JJ.
   LOBRANO, Judge.

Plaintiff, Lionel Madere, (Madere) prosecutes this appeal from the adverse judgment of the trial jury rejecting his demand in tort for personal injuries sustained while riding as a guest passenger in an automobile owned and being operated by defendant, Cynthia A. Serpas (Serpas). Since Ser-pas had no automobile liability insurance, plaintiff also sued Allstate Insurance Company (Allstate), his uninsured motorist carrier.

A summary of the pertinent facts are as follows: The accident occurred about 3:00 a.m. on the morning of April 6, 1978 when Madere and Serpas were driving across the St. Claude Avenue bridge over the industrial canal. As it started its dissent, the car struck a curb on the opposite side of the bridge, began to rotate in a counter clockwise direction, struck the curb on the far right side of the street, tumbled over the protective railing and landed on the ground below.

The fateful evening began ten hours earlier when Madere closed his business for the day and entered the Chateau Lounge where Serpas, an old acquaintance, was employed as a bar maid. After consuming a scotch and water, Madere left briefly to get dinner and clean up. He returned around 7:00 p.m. when Serpas got off work. Although the testimony is conflicting as to the number of drinks she consumed while at the Chateau, it is clear she had at least one screwdriver, which, in her own words, was a “strong one”. Shortly after Madere’s return they left for Lou’s bar or, as it is also called, Yogi’s bar. At Lou’s they had a couple more drinks. This was substantiated by the testimony of Patricia A. Koren who joined them at Lou’s and witnessed their behavior. Koren, Ser-pas and Madere then left Lou’s and returned to the Chateau where they consumed additional alcoholic beverages. Apparently they all went in Madere’s van because Koren testified that when they arrived at the Chateau there was some discussion about Madere’s driving habits. Shortly thereafter Koren became irritated with Madere for neglecting her, took his van back to Lou’s so she could get her own car, and went home. Becoming more irritated at home because of Madere’s behavior, she decided to try to locate them (Mad-ere and Serpas) to see where they were going.

Upon arriving at Lou’s she noticed Mad-ere’s van in the middle of the street with police units around it. Koren then got worried that she failed to put the vehicle in “Park” and it rolled into the street, so she didn’t stop. After driving around about an hour, she once again located Madere and Serpas at “Jerry LaVie’s”, a lounge on Paris Road. She went in and asked Mad-ere what had happened to the van, but he refused to speak with her. Serpas answered in a very obscene and derogatory manner. Koren then left the lounge and waited in the parking lot until Madere and Serpas left. They finally departed in Ser-pas’ lime green Volkswagon, with Serpas driving.

Serpas testified that after they left Jerry LaVie’s they went to the J & M Grill for breakfast. Upon seeing that the place was overly crowded, they decided to go to Lucky Pierre’s in the French Quarter in New Orleans. At this time, Serpas claims Madere became the driver of the Volks-wagon. Shortly thereafter the accident occurred.

The sole issue on appeal is whether the jury committed manifest error in finding that Madere was contributorily negligent and assumed the risk of his injuries by voluntarily riding with Serpas whom he knew or should have known was intoxicated.

Appellant Madere also assigns as error two jury charges given by the trial judge in regard to the defenses of assumption of the risk and contributory negligence in cases of this type. Appellee, Allstate, argues that those issues are not properly before the Court because trial counsel failed to object at the proper time. A review of the record reveals that appellant was given ample opportunity by the trial court to object to the jury charges, and he failed to do so, thus waiving his right to raise the objections on appeal. La.C.C.P. Art. 1793; Fincher v. Surrette, 365 So.2d 860 (La.App. 4th Cir.1978). In addition, we have reviewed the alleged defective charges, and have found them to be proper recitations of the law.

It is well settled law that a guest passenger who voluntarily accompanies a driver who has been drinking excessively assumes the risk of injuries received in an accident caused in whole or in part by the driver’s negligence, if the alcohol induced impairment of the driver’s ability is a substantial contributory cause of the accident and if the guest passenger knows or should have known of the driver’s condition and nevertheless voluntarily rides with him. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1977).

In the case at bar, appellant does not dispute the intoxication of Serpas and the fact that her intoxication was a substantial cause of the accident. The primary thrust of the Madere argument is that Allstate failed to prove by a preponderance of the evidence that at the time of the accident he had actual knowledge of her intoxicated condition so as to satisfy the requirements of assumption of the risk.

Our Supreme Court in Bass v. Aetna Ins. Co., 370 So.2d 511 (La.1979) stated:

“Knowledge is the main stay of this assumption of the risk defense, and this court will impute knowledge to a plaintiff, not because he was in a position to make certain observations, but only when the plaintiff actually made those observations and from those observations should reasonably have known that a risk was involved. Prestenbach v. Sentry Ins. Co., 340 So.2d 1331 (La.1977). Assumption of the risk therefore is properly applicable to those situations where the plaintiff, with knowledge of the peril, voluntarily enters into a relationship with defendant involving danger to himself because of defendant’s contemplated conduct.” Id. at 51⅛.

The record reflects that Madere was with Serpas continually for a period of at least eight hours prior to the accident. During that time they both visited several bars and consumed large quantities of alcoholic beverages. This was substantiated by the testimony of Serpas herself, Patricia Koren and Ronald J. Livaudais, who saw them during the evening. The latter two both testified that Serpas and Madere were acting or appeared intoxicated at various times in the evening.

Under the circumstances shown herein (which we deem unnecessary to reiterate in detail) we find no merit in Madere’s contention that Allstate has failed to show he knew or should have known Serpas was in no condition to drive the automobile. Suffice to say the record substantiates the jury’s finding that Serpas was intoxicated and Madere knew or should have known of her condition when he got in the vehicle with her. They concluded he was eontribu-torily negligent and assumed the risk of his injuries. That finding is to be accorded great weight and should not be disturbed on appeal in the absence of manifest error.

For the above and foregoing reasons the judgment appealed from is affirmed. All costs to be borne by appellant.

AFFIRMED.

      . According to the testimony, Koren was called around 10:00 p.m. by Madere to join him and Serpas at Lou’s. Koren testified that she had been dating Madere at the time.


author: WARD, Judge.

text:
    GENCO, INC. v. McDONALD SALES CORPORATION d/b/a McDonald Sales International.
    No. CA-0883.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      McCloskey, Dennery, Page & Hennesy, Moise W. Dennery, Ann Wise, New Orleans, for defendant-appellee, McDonald Sales Corp.
    Stephen G. Sklamba, Lee D. Thomas, Me-tairie, for plaintiff-appellant, GENCO, Inc.
    Before WARD, GULOTTA and KLEES, JJ.
   WARD, Judge.

GENCO, Inc. filed this suit against McDonald Sales Corporation to recover sales commissions GENCO believes are due.

GENCO is an export broker, and it supplies machinery and parts to Latin American industries. One of its customers, Mr. Cabane-Vilet, asked GENCO to locate a source of small appliances, and pursuant to that request, Mr. Rudy Stargardter, the assistant manager of GENCO, contacted Mr. James Mart, the manager of McDonald’s International Sales Division. The initial contact was through a letter prepared by Mr. Stargardter and signed by GEN-CO’s President, Mr. Fischer:

⅜ >¡i ⅝ ⅜ ⅜: ⅜
An acquaintance of ours, Mr. Armando Cabane-Vilet, is arriving from Guatemala Wednesday, October 1st. Mr. Cabane-Vi-let was general manager of a large industrial enterprise, which included cotton gins, vegetable oil and shortening plants, mayonnaise and mustard manufacturing plants, etc. In his spare time Mr. Ca-bane-Vilet operated a small consumer goods import business, which grew too big for him to handle in his spare time. Our acquaintance with him goes back to his former position.
Mr. Cabane-Vilet has asked us to get him in contact with wholesale distributors in this area. We thought you might be interested in meeting Mr. Cabane-Vilet, and deal with his firm directly. Please let us know.
In order to avoid pricing your products out of the market, you may allow us a small commission on the business you transact with or through this gentleman. If we had to purchase merchandise from you, our prices to him would not be competitive in the quantities he orders. For instance, blenders he orders in lots of 1,000 units at a time. We will handle his spare parts orders.
5⅜ ⅜ * * Sfc

The suggested meeting took place on October 1, 1980, and Mr. James Mart, representing McDonald met with Mr. Cabane-Vi-let and an agreement was reached for the sale of small appliances.

In the months following the meeting with Mr. Cabane-Vilet, McDonald began shipping goods, and Mr. Stargardter of GENCO pressed for a commission on the sales. Finally, in August, 1981, McDonald sent a check and letter signed by Mr. Mart to GENCO:

Enclosed please find our check for $750.00 covering an introduction and finders fee. This fee is based on 3% of our first shipment to Mr. Cabane in the amount of $24,690.50.
We feel this fee is in order and no further fees are due.

GENCO continued to demand a commission on all of GENCO’s sales to Mr. Ca-bane-Vilet, but McDonald resisted, and GENCO filed this suit in January, 1982.

The Trial Judge rendered a directed verdict in favor of McDonald and against GENCO, holding that GENCO failed to prove McDonald agreed to pay a commission.

GENCO argues that the Trial Judge erred when he held there was not a contract for the payment of a commission to GENCO and, if there was not a contract, he erred when he failed to find that GENCO was entitled to commissions from McDonald because McDonald had been unjustly enriched.

GENCO relies on La.C.C. Art. 2277 ánd claims that it has proved the existence of McDonald’s obligation to pay a commission to GENCO. Art. 2277 states:

All agreements relative to movable property, and all contracts for the payment of money, where the value does not exceed five hundred dollars, which are not reduced to writing, may be proved by any other competent evidence; such contracts or agreements, above five hundred dollars in value, must be proved at least by one credible witness, and other corroborating circumstances.

Mr. Stargardter testified at trial that although there were no other notes or written agreements for a commission, the language “may” in the original letter was used as a “courtesy” and substituted for “must”. He testified that there were several subsequent meetings between him and Mr. Mart where they discussed the handling of the new account and that he suggested a five percent commission. He also testified that Mr. Mart thought this was too much, and Mr. Mart agreed to three percent. Mr. Mart denied any such agreement.

The Trial Judge weighed the persuasiveness of the corroborating circumstances and concluded that the evidence presented by GENCO was insufficient corroboration to prove a contract.

The transcript shows the Trial Judge’s reasons for directing a verdict in favor of McDonald:

According to the information presented in the plaintiff’s case I don’t think he meets the statute insofar as it is necessary to determine to show that there is a contract or agreement to give a commission to Genco, Inc. That the arrangements that were made show that Genco could not under any circumstances handle the account by themselves and if they expected a commission from the defendant that they would have asked the defendant to give a commission or made some arrangements to see that the commission was added on to the price that the defendant had quoted to Mr. Cabane-Vilet. And that since this was totally unusual, and they admitted themselves that they cannot possibly handle it because of the warehouse situation as the other purchases they made for other clients they represented in foreign countries, what they did in those instances was bought the merchandise themselves, paid for it and then rebilled it by adding an amount onto it. They didn’t do it in this instance. Everything was done by the defendant McDonald. They put a price on it and added it on, and it shows nothing was added to compensate them for any commission they thought they might have been entitled to, and it seems under the circumstances the plaintiff would have to present more than what he did, the letter requesting commission, and it seems the arrangements between the parties that no commission was to be paid, and for that reason the Court feels that the directed verdict is proper at this time since the plaintiff did not prove his case.

Since the issue is one of proof of a contract, the standard of review in this appeal is whether the Trial Judge’s findings of fact were manifestly erroneous. We conclude that they are not.

In this appeal, GENCO also claims unjust enrichment. McDonald argues that GENCO cannot raise a claim for unjust enrichment where that claim was not raised in the Trial Court. We agree and add, however, that GENCO could not in any event prevail in a claim for injust enrichment. The elements of an action for injust enrichment include: 1) enrichment to one party; 2) impoverishment of the other; 3) a connection between those two elements; 4) no legal cause for the enrichment and impoverishment; and 5) no other remedy at law.

While GENCO may have assisted McDonald in the sale of its merchandise, there is no evidence that GENCO was impoverished. Additionally, a remedy at law was available, if proven. GENCO has pursued and failed to prove its available remedy at law, and a claim for injust enrichment is not now available.

The judgment appealed from is affirmed. All costs of trial and this appeal are assessed to appellant, GENCO.


author: WILLIAMS, Judge.

text:
    STATE of Louisiana v. Richard SMITH.
    No. KA-0994.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.
    Harry F. Connick, Dist. Atty. of Orleans Parish, William R. Campbell, Jr., Asst. Dist. Atty. of Orleans Parish, New Orleans, for plaintiff-appellee.
    Patricia Christofferson, Dwight Doskey, New Orleans, for defendant-appellant.
    Before REDMANN, CIACCIO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This is an appeal from defendant Richard Smith’s conviction of armed robbery in violation of La.R.S. 14:64. Defendant was found guilty as charged and sentenced to 25 years at hard labor without benefit of parole, probation or suspension of sentence.

The testimony adduced at trial showed that on January 25, 1982 Sheila West, an employee of D.H. Holmes in the Lake Forest Shopping Center, was robbed at gunpoint by two men. Mrs. West was entering her apartment when she was approached by a man, whom she positively identified as defendant. He threatened her with a gun and demanded her purse and jewelry. She handed these items to the man. A second man, who was never apprehended, joined defendant, and they forced her to allow them to enter her apartment. She was told to sit “with her face down” on a bed while the robbers ransacked her apartment. They then demanded her car keys and left. The victim later discovered that her car was missing, as well as various items from her apartment, including binoculars, headphones and leather coats. None of the items stolen were recovered.

On February 10, 1982, the victim was working at the Ticketmaster outlet in Holmes, Lake Forest. She recognized the defendant when he approached her to buy tickets to a concert. She noticed that he was wearing an identification card from Lutheran Homes, a nursing home, and noted that the name on the card was Smith. She relayed this information to the police, who arrested defendant. The victim later identified the defendant in a photographic lineup.

At trial, defendant introduced testimony from three witnesses who claim that he was talking on the telephone from 5 o’clock to 9 o’clock the evening that the crime occurred.

The defense has requested that we review the record for errors patent. La. Const, art. 1, § 19 (1974). Defendant has made no formal assignments of error.

We have reviewed the record on appeal, and find no errors patent.

Furthermore, we have also reviewed the record to determine whether sufficient evidence of the essential elements of armed robbery was introduced at trial. See State v. Graham, 422 So.2d 123 (La.1982). After viewing evidence presented at trial in the light most favorable to the prosecution, we find that the state has proved the essential elements of armed robbery beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

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

AFFIRMED.


text:
    Lionel JACKSON v. MALONEY TRUCKING & STORAGE, INC.
    No. CA-1050.
    Court of Appeal of Louisiana, Fourth Circuit.
    Dec. 9, 1983.

      Morris H. Hyman, Bruce S. Kingsdorf, New Orleans, for plaintiff-appellee.
    Perrin C. Butler, Metairie, John H. Ryan, New Orleans, for defendant-appellant,
    Before AUGUSTINE, LOBRANO and WILLIAMS, JJ.
   WILLIAMS, Judge.

This case involves the interpretation of La.R.S. 23:1225 [Acts 1978, No. 750, § 1], which permits an employer to reduce Worker’s Compensation payments by the amount of social security benefits the employee receives when the employee is determined to have suffered total and permanent disability. This court held that defendant was entitled to the reduction and remanded it to determine the date defendant made a demand for the reduction provided for in the statute. The trial court held that demand was made, and reduction allowed, from the date defendant filed a petition for a rehearing to introduce evidence of plaintiff’s social security benefits. Plaintiff appeals.

At trial defendant argued that there was no causation present, offering the testimony and report of one doctor that plaintiff had attributed his back pain to having carried a friend’s refrigerator. The trial court apparently believed the testimony of plaintiff and his co-worker, and the testimony and reports of several of plaintiffs doctors, that plaintiffs back injury had occurred while loading a 590 pound drum during his employment by defendant on August 9, 1979. The trial court rendered judgment on June 15, 1981, awarding plaintiff 400 weeks of partial disability compensation benefits. The court also ordered defendant to pay a 12% penalty on claims withheld since December 5, 1979 and $2,000 in attorney’s fees, holding that defendant’s cessation of payments on that date in response to a medical report permitting plaintiff to return to light work without a medical discharge, was arbitrary, capricious and without probable cause under La.R.S. 23:1201.2.

Defendant moved for a suspensive appeal and on September 30, 1982, the Fourth Circuit Court of Appeal, 424 So.2d 1037, amended the trial court’s judgment to award plaintiff total and permanent disability benefits, and an additional $500.00 in attorney fees for prosecuting the appeal. Defendant requested and was granted a rehearing. On rehearing this court held that defendant was entitled to reduce his worker’s compensation payments as provided for in La.R.S. 23:1225, since plaintiff was now determined totally disabled, and the case was remanded to determine the reduction. The trial court held that defendant was entitled to reduce worker’s compensation payments only from the date defendant had specifically demanded the benefits of the statute. The court determined this to be October 29, 1982, the date defendant filed the petition for rehearing to introduce evidence of the social security payments.

Defendant appeals the judgment rendered by the trial court on remand, alleging that the trial court erred by: (1) not considering defendant’s demand to have been made in defendant’s answer to plaintiff’s original petition, or alternatively, when the issue was tried in court and the pleadings accordingly expanded; and (2) not allowing defendant to reduce all payments, including unpaid back payments, since defendant appealed the initial worker’s compensation award suspensively.

Plaintiff’s brief on appeal alleges that the trial court erred by: (1) not considering defendant’s demand to have been made only after the date of the trial court’s judgment on remand, or, alternatively, only after the case was remanded to the trial court; and (2) not holding La.R.S. 23:1225 unconstitutional. Plaintiff also asks to be awarded an increase in attorney’s fees to compensate services rendered on remand and on the present appeal.

DATE OF DEFENDANT’S DEMAND

Defendant asserts that the language in his answer to plaintiff’s initial petition, stating that “Respondent avers that he has paid to or for plaintiff any and all sums which he is due under the Workmen’s Compensation Act and specially pleads payment as a defense” constitutes the demand required to entitle defendant to the reductions provided for in La.R.S. 23:1225.

La.R.S. 23:1225 provides that Worker’s Compensation benefits for permanent and total disability shall be reduced by federal old age, survivors, and disability insurance benefits when the combined federal and worker’s compensation benefits would otherwise cause a reduction in the federal benefits.

Social security is a participatory program, the employee having contributed half of the “premium” for his coverage. La.R.S. 23:1225 affords the employer the opportunity, under certain conditions, to reduce compensation of work-injured employees by maintaining federal payments at their highest level. For the employer to benefit from the statute it must make a demand for the benefits of the statute; the employer can reduce his payments only prospectively from the date it exercises its right to do so. Lofton v. Louisiana Pacific Corporation, 423 So.2d 1255 (La.App. 3d Cir.1982).

An affirmative defense must be set forth in the answer in such a way that the plaintiff is given fair and adequate notice of the defense and of the fact that evidence will be offered regarding it. La. C.C.P. Art. 1005; Paxton v. Ballard, 289 So.2d 85 (La.1974); State v. Nattin, 316 So.2d 115 (La.1975). Defendant’s blanket assertion of payment of all sums due did not mention social security payments and cannot be considered to have given plaintiff the notice the Code’s scheme requires.

Considering the policies of worker’s compensation and social security, defendant’s vague assertion was even further from satisfying the pleading requirements of La.R.S. 23:1225. It is the responsibility of the employer to inform himself of the social security payments being received by the employee to whom he is paying worker’s compensation; the employee should not have to calculate and remit the amount creditable to the employer. Other jurisdictions have interpreted similar provisions in this manner. See, Department of Trans portation, Division of Risk Management v. Lindsey, 383 So.2d 956 (Fla.App.1980). The burden of reporting social security could not be shifted back upon the employee on the basis of defendant’s vague professions of payment of all money due. The demand required of La.R.S. 23:1225 was not made in defendant’s answer.

Defendant’s second argument that the issue was tried in court and the pleadings accordingly expanded is without merit because he introduced no evidence of social security benefits in the trial court or in the appellate court until rehearing by this court.

Defendant also asserts that all back payments of worker’s compensation due should be reduced because defendant sus-pensively appealed the award. He asserts that he would not be recouping payments made before his demand because, the sus-pensive appeal having held the judgment in abeyance, the demand automatically relates back to that judgment.

The purpose of a suspensive appeal is to defer the effects of a judgment that could possibly be overturned until it is determined that the judgment will be upheld. It does not make all affirmative acts required of an appealing party relate back to the date of appeal. As explained in Lofton, supra, La.R.S. 23:1225 is not self-operative; the social security benefits the employee receives prior to the employer’s demand cannot be recouped retroactively. It is the employer’s responsibility to ask for the benefits available to it under the statute. To allow the employer these benefits before his demand would defeat the entire purpose of the statute.

Plaintiff asserts that defendant should be allowed to reduce his payments only from the date the trial court, on remand, determined the amount of reduction or, if earlier, only from the date the appellate court remanded to the trial court to make that determination.

In Lofton, supra, the defendant had prematurely filed a rule requesting the court to determine the reduction. The trial court, therefore, did not make the reduction effective at the time of the demand, but held it would become effective upon rendition of judgment. The appellate court affirmed, holding that under the facts of the case, the trial judge had not exceeded his equitable powers. The appellate court noted, however, that ordinarily the reduction should take effect from the date of judicial demand.

Plaintiff contends that here just as in Lofton, equity requires defendant’s payments be reduced only from the time the trial court rendered judgment on remand after hearing evidence of the receipt of the social security benefits, because to do otherwise would reward defendant for its arbitrary and capricious refusal to pay plaintiff worker’s compensation benefits.

The reduction is normally to become effective upon judicial demand. Lof-ton, supra. In Lofton, because the rule demanding the reduction had been brought prematurely, the court, unable to apply the reduction from that date, chose to grant them from the date of its judgment. Here, plaintiff seeks an equitable modification of the statute’s provisions as a punitive measure. Punishment for arbitrary and capricious failure to pay is already provided for in La.R.S. 23:1201.2, which imposes a 12% penalty and attorney’s fees on the employer. There is no need to deviate from the requirements of La.R.S. 23:1225.

Plaintiff argues alternatively that the reduction should not be allowed prior to date of remand to the trial court; first, because this was the first time the evidence was presented in the trial court, and second, because affirmative defenses must be asserted in pleadings filed in the trial court and not as entirely new issues on appeal.

The appellate court can render judgment only upon the record on appeal. Thus, evidence not presented in the trial court cannot be considered on appeal. La.C.C.P. Art. 2164. Affirmative defenses must be set forth in defendant’s answer to plaintiff’s petition. La.C.C.P. Art. 1005.

The policies involved in La.R.S. 23:1225 do not mesh perfectly with those of appellate review nor those of affirmative defense. An employer may not discover that his employee is receiving social security benefits until after he has answered the employee’s petition. An employer should not be precluded from ever receiving the benefits of reduction because the issue was not brought up at trial and thus not part of the record for review, while the federal government enjoys reduced social security payments. The intent of the statute is to offer the employer a chance to make smaller worker’s compensation payments while the federal government continues to provide full social security benefits. What is required is not a technical affirmative defense, but rather, a judicial demand. Lof-ton, supra. Judicial demand was made when defendant filed a petition with the court to receive the reduction provided for in the statute. We affirm the trial court’s holding to that effect.

CONSTITUTIONALITY OF R.S. 23:1225

Plaintiff asserts for the first time on this appeal that La.R.S. 23:1225 is unconstitutional in that it violates the equal protection provisions of the Fourteenth Amendment of the United States Constitution and Article I Section 3 of the 1974 Louisiana Constitution. The constitutionality of La.R.S. 23:1225 was attacked on appeal in LeBlanc v. Consolidated Aluminum Company, 433 So.2d 361 (La.App. 3d Cir.1983) and the court held the matter res judicata because it had been neither pleaded nor raised at the trial level. We decline to consider plaintiff’s constitutional claim for the same reasons. Summerell v. Phillips, 258 La. 587, 247 So.2d 542 (1971).

ATTORNEY’S FEES

Plaintiff asserts that the $2,000 attorney’s fees awarded at the first trial and the $500.00 additional awarded at the first appeal are insufficient and requests that the defendant be required to pay an additional $5,000.00 attorney’s fees for services rendered on remand and on this appeal.

Plaintiff was last granted attorney’s fees on September 3, 1982 when this court awarded him an additional $500.00. In the following year there have been a rehearing by this court, a remand to the trial court, and the present appeal to this court. In Lastrapes v. CNA Insurance Company, 426 So.2d 741 (La.App. 3d Cir.1983), cited by plaintiff, the award of attor ney’s fees was increased by $1,500.00 to cover an appeal and remand and a second appeal occurring over two years’ time. In Bernard v. Merit Drilling Company, 434 So.2d 1282 (La.App. 3d Cir.1983), attorney’s fees were increased by $750.00 to cover one appeal. We consider an increase of $1,500.00 as appropriate in the instant case.

AFFIRMED AND AMENDED.