author: STOKER, Judge.

text:
    ACADIAN HERITAGE REALTY, Plaintiff-Appellee, v. The CITY OF LAFAYETTE, Defendant-Appellant.
    No. 84-35.
    Court of Appeal of Louisiana, Third Circuit.
    April 11, 1984.
    Rehearing Denied May 7, 1984.
    Writ Denied June 25, 1984.

      Voorhies & Labbe, Marc W. Judice, Lafayette, for defendant-appellant.
    Jefferson D. Hughes, III, Walker, Ronald G.' Gossen, J. Minos Simon, Domen-geaux & Wright, Bob P. Wright, Joseph Koury of Koury & Koury, Kenneth W. DeJean of Fruge & DeJean, J.M. Wooder-son, Lafayette, for plaintiff-appellee.
    Before CUTRER, STOKER and DOU-CET, JJ.
   STOKER, Judge.

Before us in this appeal is a judgment dated September 10, 1981, which grants a “conditional permanent injunction” in favor of certain intervenors in this case. The injunction sets out specific guidelines to be followed by the City of Lafayette in its operation of a sanitary landfill and, in effect, makes the landfill subject to the management of the trial court. A motion to dismiss the appeal was filed by the interve-nors and was referred to the merits. In this opinion, we first address the motion to dismiss which we conclude should be denied. We will then address the merits of the injunction.

FACTS

The circumstances leading up to the filing of the present appeal are somewhat lengthy and confusing, but a recitation of these circumstances is necessary to an understanding of the motion to dismiss.

Suit was originally filed by Acadian Heritage Realty (Acadian) against the City of Lafayette. Acadian sought to enjoin the City from beginning operation of a landfill in an area which it was developing into subdivisions. Acadian also sought damages for the negligent placement of the landfill. Acadian’s suit for damages was dismissed on an exception of no cause of action. The dismissal of the suit was reversed on appeal by this Court in an opinion reported at 394 So.2d 855 (Acadian # 1). The trial court ultimately refused to enjoin the construction of the landfill at the instance of Acadian, but this action was not appealed by Acadian. Acadian does not figure in this appeal.

In the meantime the landfill had begun operations, and several landowners in the area (referred to as the Gossen and Guil-beau groups) intervened in the suit filed by Acadian seeking damages for loss of value and nuisance and seeking to enjoin further operation of the landfill. However, Acadi-an’s principal suit and the interventions were tried separately and came up on appeal separately. After trial between the landowners and the City, on September 10, 1981, the district court issued the injunction before us in this appeal. Thus, in this appeal the intervenors, the Gossen and Gu-ilbeau groups, are the appellees. It has recently become apparent that the City obtained an order of appeal, timely signed by the trial judge, granting an appeal and setting bond. The trial court refused to stay the injunction and, on application for writs to this Court, the City was granted a stay of the injunction during the pendency of the appeal. The original order of appeal was not filed with the parish clerk of court at this time, but a revision of the order dated September 23,1981 deleting the bond requirement was filed and sent to this court on September 24. This revision does not refer to a particular judgment or original order of appeal, but it is now apparent that the only appealable judgment in the record at that time was that of September 10, 1981. The writ granting a stay of the injunction was issued on September 30, 1981. (Our Docket Number # 8659.)

A judgment awarding money damages to the intervening landowners was filed on October 27, 1982, from which the City appealed. That judgment was affirmed by this Court in an opinion at 434 So.2d 182, writ denied 440 So.2d 733 (Acadian # 2). In that appeal both the City and the landowners argued the merits of the injunction, but we found that the record before us at that time contained only an order of appeal from the October 27,1982 judgment. Thus we did not consider the injunction. In its application for rehearing in that matter, the City asserted only that our writ action on September 30, 1981 granted an appeal from that judgment. The rehearing was denied on July 14, 1983.

During the appeal proceedings on Acadi-an # 2, trial was held between the original plaintiff, Acadian, and the City resulting in a judgment for money damages in favor of Acadian on January 28, 1983. Our decision affirming that judgment was rendered on February 1, 1984. (Acadian # 3). Acadian Heritage Realty v. City of Lafayette, 446 So.2d 375 (La.App. 3rd Cir.1984). In that appeal, the City again attempted to bring the issues regarding the injunction before this Court and we pointed out that Acadian, the appellee in Acadian # 3, was not involved in the injunction and was not the plaintiff in whose favor the injunction was given. Thus, the City could not argue the injunction in its appeal against Acadian.

During the latter part of July, 1983, the clerk of this Court received a communication from the Lafayette Clerk of Court forwarding an order of appeal from the injunction judgment of September 10, 1981, requesting that the order be inserted into the record of Acadian # 3, at page 462A, et seq. This order of appeal was stamped as having been filed on July 26, 1983, with the Clerk of Court for Lafayette Parish, and, although it was signed by the trial judge, the date of the signing was not given. The order does contain a return date of October 12, 1981, evidently inserted in the appropriate blank by the trial judge.

During oral argument of Acadian # 3 the City’s attorney, when advised that the injunction matter was not on appeal in that particular appeal, indicated the City’s desire to have it docketed, heard and disposed of. Accordingly, a separate appeal was docketed and is the appeal now before us. (Acadian # 4.) When notice of the appeal was given to the intervening landowners, they filed a motion to dismiss the appeal as being untimely.

MOTION TO DISMISS

In support of the motion to dismiss the appeal as having been untimely filed, movers argue that the late filing of the order of appeal is an error attributable solely to the City. In fact, at oral argument on this matter, the City’s attorney admitted that the unfiled order of appeal was finally located in his office files, and he then immediately filed it with the Lafayette Parish Clerk of Court on July 26, 1983. Counsel stated that the usual procedure in Lafayette Parish was for the judge to sign an order of appeal, and someone from the judge’s office would file it with the Clerk of Court. Counsel for the City speculated that the original order was apparently sent back to his law office and was inadvertently placed in his file under the erroneous impression that it was an information copy. We have no doubt that the search for the order was extremely tedious as the final Clerk’s record in this matter contained more than 3800 pages. No doubt the file kept by the City’s attorney must be even more voluminous.

Although the original order of appeal did not appear in the record until July 26, 1983, the revision of that order and the writ granting a stay of execution of the injunction did appear in the record and gave timely notice to the parties of a pending appeal. The. two documents do not grant an appeal as. argued by the City, but they do make it apparent that an appeal was intended. Even this Court was clearly under the impression that an appeal existed when the writ was granted. In Acadian # 2, all parties argued the merits of the injunction in their briefs as if it were being considered on appeal.

Movers argue that this situation should be controlled by Traigle v. Gulf Coast Aluminum Corporation, 399 So.2d 183 (La.1981). In that matter the Louisiana Supreme Court dealt with a series of cases in which the orders of appeal were timely filed with the parish clerks of court, but were not signed prior to the expiration of the delays. The Supreme Court concluded that when an order of appeal is timely filed with the clerk of court, the clerk has a duty to either obtain the judge’s signature on it or, in cases where allowed by law, sign it himself. Thus, the Court held that the appeals were valid because they were timely filed.

According to movers, the Court in Traigle ruled that only the timely filing of the order of appeal could validly effect an appeal and the signing of an order of appeal within the time limit did not. We disagree. The cases relied on by the City, Owens v. AAA Contracting Company, 213 So.2d 338 (La.App. 1st Cir.1968) and Martin v. Martin, 228 So.2d 355 (La.App. 4th Cir.1969), represent the long-standing rule that as long as the order of appeal is timely obtained (i.e., signed), it cannot be invalidated by the failure to timely file it as long as it is eventually filed in the record. We do not believe that the Supreme Court in Trai-gle intended to overrule prior holdings recognizing the validity of appeals. Rather we believe the Court was merely recognizing the principle that appeals are favored in the law and should not be dismissed for a mere technicality. Further, an appeal should be maintained unless the ground urged for dismissal is free from doubt. See Jeanmard v. Sears, Roebuck and Company, 436 So.2d 575 (La.App. 3rd Cir. 1983).

In the present case, although it is clear that the order of appeal was not timely filed, it is not entirely clear what caused the late filing. The City’s attorney contends he followed normal procedure in leaving the order at the judge’s office to be signed. We decline to hold that the reliance on the usual custom in this case constitutes fault imputable to the appellant. See Thompson v. Warmack, 229 So.2d 352 (La.App. 3rd Cir.1969). Both parties and even this Court at one point believed that there was a valid appeal.

Finally, movers urge that under LSA-C. C.P. arts. 561 and 2165 as each provided prior to amendment by Act 186 of 1982, the appeal should be declared abandoned for failure to prosecute for one year. We disagree. Aside from the fact that both parties believed the injunction to be before this Court on appeal, there was also some confusion in this Court concerning which matters in this case were to be consolidated. At one point a peripheral matter was consolidated with Acadian # 2. See 434 So.2d 180 (La.App. 3rd Cir.1983). The City’s attorney consistently harbored the expectation that the injunction would be heard either in connection with Acadian # 2 or Acadian # 3. Because the entire record was already before this Court in Acadian # 3, and the City’s attorney mistakenly assumed the order of appeal relative to the injunction was a part of that record, the appellant had no reason to expect a separate return date or separate notice on the injunction matter. Considering the fractured nature of this litigation, we do not find his expectations unreasonable. On the other hand, this Court of Appeal was not made aware that the injunction had in fact been appealed until a copy of the order of appeal filed July 26, 1983 was forwarded to us sometime thereafter by the Clerk of Court for Lafayette Parish. As noted above, this was while the appeal in Acadian # 3 was pending before us.

After fully considering all of the above matters, and with particular notice of the continual and unusual confusion in this matter, we conclude that the motion to dismiss the appeal should be denied. Accordingly, we deny the motion to dismiss.

MERITS OF THE INJUNCTION

The Conditional Permanent Injunction

In the appeal in this case we consider the merits of a judgment of the trial court which it referred to as a conditional permanent injunction. From the standpoint of mechanics, the trial court first issued an injunction prohibiting and enjoining the City of Lafayette, or anyone acting for it, “from continuing the operation of the N. Dugas Road landfill.” The trial court judgment then provided: “This conditional permanent injunction is suspended contingent upon the following:” At this point the judgment lists numerous conditions to be met which extend over three and a half legal size pages of double space typing. The City was given two weeks to meet the conditions. After the conditions are concluded a final paragraph provides:

“2. Upon written notice or motion to this Court that any violation(s) has occurred, a hearing will be held to determine whether or not the complaint is well taken and that the suspension of the conditional permanent injunction should be dissolved.”

The judgment described above was signed on September 10, 1981 and is reproduced at the end of this opinion in full as Appendix I.

The Stay Order from this Court

As recounted above, the City appealed from the injunctive order. The injunctive order was first given verbally on September 1 or 3, 1981. This Court of Appeal granted a stay order in the proceedings on September 3, 1981 and on September 30, 1981 we extended the stay order to stay the trial court judgment (the conditional permanent injunction) during the pendency of the City’s devolutive appeal. Therefore, our stay order is still in effect. Although the trial court injunctive order is still in effect it is in abeyance by reason of our stay order.

Issues on Appeal

In the brief on behalf of the City of Lafayette, numerous points are raised in support of the City’s assignment of error in which it contends that the trial court erred in the issuance of the “conditional permanent injunction.” Separate counsel for the Gossen group and Guilbeaux group filed briefs in support of the injunction. It might well be that this injunction matter could be disposed of on a consideration of the various issues raised by the parties. However, we prefer to base our opinion on broader grounds which we feel are more appropriate under the circumstances.

In this connection we are mindful of our pronouncement in Louisiana Livestock Sanitary Board v. Prather, 301 So.2d 688 (La.App. 3rd Cir.1974) which we recently reiterated in Daiquiri Factory, Ltd. v. City of Lafayette, 429 So.2d 523 (La.App. 3rd Cir.1983), writ denied 435 So.2d 441 (La.1983). That pronouncement was:

“The purpose of an injunction is not to afford a remedy for what has happened in the past, but to prevent the occurrence of acts in the future which are unlawful or injurious. The applicant for an injunction is not entitled to that type of relief unless he shows that there is a reasonable probability that the acts sought to be enjoined will occur. It is not sufficient for plaintiff to simply show that the unlawful act has been committed once by the defendant, and that plaintiff fears that it will be committed again. Simon v. Southwest Louisiana Electric Mem. Corp., 267 So.2d 757 (La.App; 3 Cir.1972); Greenberg v. DeSalvo, 254 La. 1019, 229 So.2d 83 (1969).”

Basis for Dissolving Conditional Permanent Injunction

Regardless of all other considerations and technical arguments, we are inclined to view the issues from a broader perspective. At the time the trial court issued the conditional permanent injunction in written form, September 10, 1981, the case was still to be heard on its merits. The judgment in the case on its merits (affirmed by us) in which damages were awarded became final when writs were denied by the Louisiana Supreme Court on October 17, 1983. (440 So.2d 733). There is nothing before us at this time to indicate what has been the operational history of the landfill since the plaintiffs’ concern first arose.

In reasons for judgment in which the trial court stated the conditional permanent injunction would be granted, and in the injunction judgment itself, the trial court drew heavily on the requirements for operation of the landfill laid down in the interim permit granted by the state agency, Department of Natural Resources, on June 25, 1981. The City of Lafayette suggests to us now that a permanent permit has now been issued, and the City is operating the landfill under that permit.

It occurs to us that the very detail dealt with by the trial judge in the injunctive order in question suggests that supervision of such an activity by judicial bodies are inordinately time consuming, is beyond the ordinary expertise of judges and is inappropriate for long-time supervision by judges. We are of the opinion that the conditional injunction in question no longer serves any valid purpose. Obviously, such an activity can be more appropriately regulated and monitored by an administrative agency designed and staffed to deal with such operations as landfills.

This is not to suggest that in exceptional situations of an overriding nature issuance of a qualified injunction by a court of law may not be in order. This was done by our Supreme Court in Salter v. B.W.S. Corporation, Inc., 290 So.2d 821 (La.1974). In that case the need for immediate action was manifest. In the case before us no insupportable consequences will result if the landfill is properly operated. This is clear from our opinion on the merits. 434 So.2d 182. We affirmed damage awards to plaintiffs on the basis of what had been done in the past and up to the time of trial. Much of the award was based on lowered property values resulting from mere location of the landfill.

In Robichaux v. Huppenbauer, 258 La. 139, 245 So.2d 385 (1971), the trial court permanently enjoined the defendant from operating a stable or keeping horses on premises in the French Quarter of the City of New Orleans. The Court of Appeal affirmed. The Supreme Court ameliorated the injunction to permit continued operation of the stable under “mandates, restrictions, and injunctions” which it laid down in its opinion. These conditions included positive instructions to take described affirmative measures. The action taken by the trial court here with reference to the landfill belonging to the City of Lafayette in this case is not far different from what the Supreme Court did in Robichaux v. Huppenbauer. However, there are several points of qualitative difference. In the first place, there was no suggestion that the trial court in Robichaux reserved permanent supervision of the horse stable. However, the right was reserved to plaintiffs to renew their complaints if defendant failed to abate the nuisance aspect of his stable. In the second place, the situation in Robichaux v. Huppenbauer was not so complex or technical that it would constitute a burden for the trial court involved to deal with, even in the future if need be. Finally, there is no indication that there was an appropriate administrative agency in the City of New Orleans regulating horse stables and exercising supervision over their operation.

In view of the considerations discussed above, and considering the appropriate roles of the judiciary and administrative and regulatory bodies, we are inclined to believe there is no longer any need for a continuation of the permanent conditional injunction issued on September 10, 1981, if indeed it was necessary at the time it was issued. Therefore, we will reverse the trial court and dissolve the injunction in question.

During oral argument counsel for plaintiff-appellees referred us to the case of McCastle v. Rollins Environmental, etc., 415 So.2d 515 (La.App. 1st Cir.1982), writ denied, 420 So.2d 449 (La.1982). The Court of Appeal for the First Circuit held in that case that injunctive relief to halt a nuisance under LSA-C.C. art. 667 (offensive chemical fumes and odors) was not precluded or pre-empted by the fact that the Legislature had enacted statutory regulations in the field and the fact that a state agency, Environmental Control Commission (ECC), had been created to regulate the field. Without commenting on this holding, we take the position that our action does not run counter to the First Circuit’s holding. We base our action on policy considerations. Our decision today comes approximately two and one-half years after the conditional permanent injunction granted by the trial court. Thereafter, the trial court awarded plaintiff-appellees damages, we affirmed, and the Supreme Court denied writs. It is time that supervision and regulation of the landfill in question be taken out of the courts and be handled by the appropriate state administrative agency. We do not hold that the courts may not act or intervene at any time where the circumstances warrant it. Salter v. B. W.S. Corporation, Inc., supra.

Although our reversal will embrace all matters ordered, prohibited or prescribed as conditions of the trial court’s suspension of its injunction from continuing operation of the landfill, we deem that one condition requires specific consideration. Conditions numbered 11 and 16 laid down by the trial court provided:

“11) The operators of the landfill shall oversee the dumping and stacking of garbage, and they are to prevent the disposal of waste any higher than five (5') feet above the ground.
“16) The operators of the landfill shall dismantle the thirty (30') foot wall of waste and bring it down to comply with the five (5') foot height listed above.

In its reasons for judgment the trial court refers to the representations in an earlier injunction hearing in which the City representatives stated that garbage at the landfill would extend ten feet below ground level and five feet above it. At the time of the hearing on the injunction which was granted the trial court found as a fact that garbage might extend as high as 30 to 35 feet above ground. The trial court derisively characterized the ultimate result as “something like Mount Everest.”

Regardless of what the City may have represented, we find no evidence justifying the trial court’s order, as a condition of suspending the injunction to close the landfill, requiring that the City “dismantle” Mount Everest. The order can only be based on esthetic considerations. Counsel for the Gossen Group argued as follows in his brief on appeal:

“The trial judge heard the testimony of the various witnesses and personally viewed the solid waste disposal site and concluded that the thirty (30') foot wall of waste should be dismantled and brought down to five feet above ground level.
“Furthermore, Mr. Bentley MacKay, Jr., appellant’s expert witness had testifed that the thirty-foot mound of garbage could take as much as thirty years to settle and there could be danger of explosion from the collection to methane gas if proper measures are not exercised.
“The trial court, after having viewed the thirty foot mound, recognized that a thirty foot hill of garbage rising from the flat countryside sticks out like a ‘sore thumb’, and a lowering to a height of five feet above the ground would lessen the blight on the countryside.
“Appellant argues that a party has a right to construct a hill on his property. We agree. Had the City constructed a hill on the property for, let’s say, park and recreational purposes, there would have been no litigation.
“A thirty foot pile of garbage and dirt is unsightly and the potential of a methane gas explosion creates a hazardous condition and cannot be construed as the type of inconvenience contemplated by Civil Code Article 668.”

Counsel’s argument shows on its face that its thrust is.on the esthetic appearance, a point which we will not contest. The reference to the danger of collection and possible explosion of methane gas is followed by the words “if proper measures are not exercised.” The trial court may not limit the height of the waste pile based upon its personal sensibilities and aesthetic sense even if it coincides with the residents and property owners of the area. The exercise of proper measures to meet the danger of methane gas is another matter. In any event, any measure to deal with such gas and the proper measures to be taken are not sufficiently covered in the record in this case to justify the order to dismantle the waste pile.

We conclude that the trial court abused its discretion in issuing the order to limit the height of the waste pile to five feet above ground level. In previous opinions in this litigation reference has been made to the balancing of interests between a land user and his neighbors. Numerous cases could be cited of instances in which landowners and occupiers have been denied relief and have been required to tolerate operations considered by the claimants as inordinately offensive. In our opinion the landfill as an object of height, not in itself dangerous or productive of nuisance other than unsightliness, is an “inconvenience” of the type referred to in LSA-C.C. art. 668. Article 668 provides:

“Although one be not at liberty to make any work by which his neighbor’s buildings may be damaged, yet every one has the liberty of doing on his own ground whatsoever he pleases, although it should occasion some inconvenience to his neighbor.
“Thus he who is not subject to any servitude originating from a particular agreement in that respect, may raise his house as high as he pleases, although by such elevation he should darken the lights of neighbors’s [neighbor’s] house, because this act occasions only an inconvenience, but not a real damage.”

CONCLUSION

For the reasons given above, the judgment of the trial court granting a conditional permanent injunction in this case, the written and signed judgment being dated September 10, 1981, is reversed;

IT IS ORDERED, ADJUDGED AND DECREED that the demands of the plaintiff-intervenors for injunctive relief be rejected and the conditional permanent injunction issued in written form on September 10, 1981 and any oral injunction granted prior thereto be dissolved.

The costs of all proceedings in this matter, both in the trial court and on appeal, are assessed to the defendant-appellant the City of Lafayette.

REVERSED, INJUNCTION DISSOLVED.

      . The order of appeal actually grants a suspen-sive appeal. However, this was obviously not intended as the trial court struck out the second paragraph of the injunction appeal order which would have stayed the injunction until completion of the appeal process. Without such a stay from the trial court the appeal could not be suspensive. LSA-C.C.P. art. 3612. Hence, the appeal could only have been devolutive.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    Vernon LEWIS v. EXXON CORPORATION.
    No. 14984.
    Court of Appeal of Louisiana, First Circuit.
    April 11, 1984.
    Rehearing Denied May 21, 1984.

      John L. Avant, Daniel L. Avant, Baton Rouge, for Vernon L. Lewis.
    J. Rodney Ryan, Jr., Baton Rouge, for Associated Indem. Corp.
    Wendell G. Lindsay, Jr., Glenn P. Marcel, Baton Rouge, for Exxon Corp. and Robert D. Litt.
    Wood Brown, III, New Orleans, for H.E. Wiese and Aetna Ins. Co.
    Gerald L. Walter, Jr., Baton Rouge, for Tyler Pipe Industries, Inc. and Hartford Acc. & Indem. Co.
    Before COVINGTON, LOTTINGER and LANIER, JJ.
   COVINGTON, Judge.

This is a suit for damages brought by Vernon L. Lewis against Exxon Corporation (Exxon) and Robert D. Litt, a section supervisor for Exxon . The worker’s compensation insurer, Associated Indemnity Corporation, intervened for recovery of the compensation benefits paid to the plaintiff.' Exxon brought a third party action against H.E. Wiese, Inc. (Wiese) and its insurer, Aetna Insurance Company, based on an indemnity clause in its contract with Wiese, and a third party action against Tyler Pipe Industries, Inc. (Tyler) and its insurer, Hartford Accident & Indemnity Company. The trial court dismissed the plaintiffs claim on the grounds that the plaintiff was a statutory employee of Exxon and a co-employee of Litt. The trial court also dismissed the third party claim by Exxon against Tyler and its insurer, and Wiese and its insurer. Further, the court dismissed the intervention of Associated Indemnity Company, plaintiff’s worker’s compensation carrier. This Court affirmed, 441 So.2d 192, the trial court’s decision, and the plaintiff obtained writs from the Louisiana Supreme Court, which reversed both lower courts on the issue that plaintiff was a statutory employee of Exxon Corporation, and remanded the case to this Court for a determination of the liability of the defendants and the quantum due to the plaintiff, in the event of liability.

The facts in this case are not in serious dispute and have been stated in our previous decision.

An accident happened on March 10,1977, at the Exxon chemical plant in East Baton Rouge Parish. Lewis was employed as a pipefitter/welder by Wiese, which had entered into a contract with Exxon to convert an existing ethanol unit to production of isopropanol. While Lewis was welding a 'flange on a gas line, in order to install a metering device, a seal plug, which had been inserted in the line to isolate a section thereof, blew out, causing severe injuries to plaintiff’s left arm and shoulder.

The line involved was one carrying gas from the Exxon refinery for use in the chemical plant. For internal accounting purposes, the refinery would bill the chemical plant for gas supplied. Since all of the gas was not used, Exxon needed to measure the gas so that an accounting could be made. The job that plaintiff (and the Wiese crew) was working on at the time of the accident was installing a metering device on the line for this purpose. Prior to the accident a “hot-work permit” had been issued by defendant Litt certifying that the area in which Lewis was to weld was safe for that purpose, a test having been conducted to check for combustible gases and the line having been purged by nitrogen.

Shortly before the accident, a portion of the gas line had been cut out after purging and testing the line. The work area was then isolated, by using a heavy seal plug. The plug was inserted just before plaintiff’s welding of the flange. As plaintiff commenced the welding, the,plug blew out, causing the injuries to plaintiff.

Lewis bases his claim for damages upon Exxon's negligence and/or strict liability as the owner and custodian of the pipe on which he was working. The criteria for determining Exxon’s duty and the risk to Lewis, and ultimately its liability, was set out in Kent v. Gulf States Utilities Company, 418 So.2d 493, 497 (La.1982), as follows:

In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.
In a strict liability case against the same owner, the claimant is relieved only of proving that the owner knew or should have known of the risk involved.

The evidence in this case discloses that Exxon exercised exclusive control over all engineering, safety and operational decisions related to the work performed by Wiese and its employees. Exxon’s engineers made all decisions concerning procedures used on this project. The testimony of Exxon’s employees indicates that Exxon personnel supervised all work, conducted the tests necessary to determine the presence of gases in the pipeline and issued the “hot work permit” only after all safety procedures had purportedly been followed, and Exxon concluded it was safe for Lewis to weld the flanges onto the pipe.

These procedures included inspection of the pipe by Litt, purging the line of hydrocarbons by the injection of nitrogen into the line, inserting the seal plug in the pipe to isolate any remaining hydrocarbons after the purge, and testing the area in front of the seal plug to determine the presence or absence of combustible material in that part of the pipe. All of the procedures were performed by Exxon employees before the “hot work permit” was issued and the work by Lewis was begun. Even if Exxon followed their so-called normal procedures in determining that the pipe was “safe” to work on, it is evident that the procedures employed were faulty. The purging of the pipe took place about twenty hours before the cold cutting of the pipe. This lapse of time allowed gases leaking from the valve to reenter the pipe. After the cold-cut section of the pipe was removed, air entered the pipe and mixed with hydrocarbons, forming a combustible mixture. Then the seal plug was inserted in order to isolate the section of the pipe to be welded and contain any gases in the pipe behind the seal plug. After the accident Exxon tested the line for hydrocarbons and found that the pipe contained 3% ethane, 28% propylene, 63% propane, 2% isopropy-lether, 1% isopropylalcohol and 3% hydrogen.

The traditional test of negligence in cases of this type requires the plaintiff prove that the thing within the defendant’s custody and control created an unreason-able risk of injury which resulted in injury and damages. In addition, the plaintiff must prove that the defendant knew or should have known of that risk, and that the owner, nevertheless failed to render the thing safe or to take reasonable steps to prevent the injury caused by the thing. This knowledge, whether actual or constructive, gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and so, responsibility is not placed on the owner who acted reasonably, but, nevertheless, failed to discover that the thing presented an unreasonable risk of harm. Buchanan v. Tangipahoa Parish Police Jury, 426 So.2d 720 (La.App. 1st Cir.1983).

To apply this test to the facts of this case we have reviewed the testimony concerning Exxon’s knowledge of the risk and the steps it took to avoid an accident. There is no doubt that Exxon owed a duty to take steps to protect against an unreasonable risk of harm to the plaintiff. We find that Exxon failed to take those reasonable steps to protect him, and thus violated this duty.

The duty owed by Exxon to protect Lewis against an unreasonable risk of harm is based upon Exxon’s custody and control of the thing which resulted in injury to Lewis and the defendant’s knowledge of the potential risk of harm or injury. The knowledge, whether actual or constructive, that the pipe might contain a combustible mixture gives rise to Exxon’s liability. In this case the evidence shows actual knowledge by Exxon of the potential danger; and, hence the creation of an unreasonable risk of harm to Lewis. Exxon attempted to free the pipe of hydrocarbons by purging it with nitrogen twenty hours before the accident. Further, the seal plug was used because Exxon knew that the pipe contained hydrocarbons and it was necessary to isolate that section of the pipe. To block that section of the pipe, Exxon used a device, the seal plug, not intended by its design and manufacture to be used for that purpose. In short, by failing to take the above described reasonable steps to protect Lewis from the risk of injury from an explosion and expulsion of the seal plug, Exxon was negligent. The above described evidence also shows that Litt, whose responsibility it was to see that the foregoing duties were performed properly, was also negligent.

Exxon contends that Wiese and Lewis were negligent and that their negligence caused the accident. Particularly, Exxon contends that the seal plug supplied by Wiese was of faulty design in that it was not exactly round and its wing nut and valve stem were bent so that the distance between either the base plate of the plug or the wing nut and valve stem was so slight that an electrical spark could jump from the plug to the pipe if the plug was touched with the welding rod. Lewis denied touching the plug. An experiment conducted by Exxon’s engineers after the accident failed to produce such a spark. The voltage from the welding machine was insufficient to arc the gap between the plug and the pipe. Exxon’s engineers failed to produce a source of ignition from the welding rod as Lewis is alleged to have done. • Since there is no other theory of negligence ascribed to Lewis’ conduct, we find Lewis free of contributory negligence. The evidence fails to show that the plug was of faulty design (if used for appropriate purposes). We find Exxon and Litt negligent; we find no negligence on the part of Wiese or Lewis.

Quantum.

The force of the explosion which expelled the seal plug from the pipe threw Lewis against the scaffolding on which he was working and caused serious injury to Lewis’ left arm and shoulder. He suffered a compound fracture of the left humerus which failed to heal and caused extensive soft tissue damage. After several weeks, a bone graft was surgically inserted with a metal plate in order to close the fracture. The injury resulted in the permanent loss of strength and motion in his left arm and hand. He is left-handed; and, as a consequence of his injury, is unable to resume his trade or occupation as a welder/pipefit-ter. There was some evidence concerning the possibility that plaintiff might be able to do some other type of work. However, the preponderant evidence indicates that Lewis’ lack of range of motion and lack of strength in his left arm and hand will severely limit his opportunity for employment. Accordingly, we find him to be permanently disabled, and compute his loss by using a projection of his past wages. From the evidence on this question, we conclude that his lost wages, based on an annual income of $17,000, using an inflation factor of 5.8%, for three years and three months (from date of accident to date of trial) amounts to $59,000. We fix Lewis’ future lost wages at $118,000, based on a work-life expectancy of 8V2 years and using an inflation factor of 5.8% and a discount rate of 7%. We award these amounts to Lewis. We further award the plaintiff $80,000.00 for past and future pain and suffering, and medical and hospital expenses in the amount of $7,601,16.

Associated Indemnity Company intervened as Wiese’s workers’ compensation insurer to recover the amounts paid to plaintiff as compensation and as medical expenses. It is entitled to judgment in its favor for such amounts.

Exxon brought a third party action against Tyler, alleging faulty design of the seal plug. Tyler’s witness testified that the plug used by Exxon was not designed to contain gas under pressure and had not been marketed as such. This testimony is not refuted. We' find no error in the trial court’s judgment on this issue, and it is affirmed.

The last issue raised by Exxon concerns the indemnity agreement contained in Wiese’s contract with Exxon. We quote here the provision in question:

Contractor shall defend, indemnify, and save Owner, its officers, employees, agents and representatives harmless from all claims for injuries to or death of any and all persons, including without limitation, employees, agents and representatives of Contractor or its subcontractors, arising out of or in connection with or by reason of work done by Contractor, its employees, agents, representatives, or subcontractors under this contract, expressly excepting claims for injuries or death caused by the sole negligence of Owner, its officers, employees, agents and representatives.

The evidence shows that the injuries to Lewis were caused solely by the negligence of Exxon and its employee. Thus, Exxon is not entitled to recover from Wiese under the indemnity agreement.

For the above reasons, the judgment of the trial court is now set aside and judgment is rendered herein in favor of the plaintiff, Vernon Lewis, in the sum of $257,000.00, plus interest, against the defendants, Exxon Corporation and Robert D. Litt, in solido. There is further judgment herein in favor of plaintiff, Vernon Lewis, in the sum of $7,601.16, plus interest, for special damages, against said defendants.

It is further ordered, adjudged and decreed, that there be judgment herein in favor of Associated Indemnity Company, intervenor herein, and against Exxon Corporation and Robert D. Litt, in solido, in the full amount Associated Indemnity Company has actually paid, or will actually pay prior to the date of the satisfaction of this judgment, to or in behalf of Vernon Lewis as weekly workers’ compensation benefits and medical expenses, plus interest on the amount of each payment of benefit which was or will be made by intervenor from the date of each payment until payment of the amounts awarded in this judgment, the sum to be paid to Associated Indemnity Company to be paid by preference and priority out of the award made herein to plaintiff, Vernon Lewis.

All costs to be paid by defendants, Exxon and Litt.

RENDERED.

      . Safety Main Stopper Co., Inc. was made a defendant by a supplemental and amending petition of plaintiff as well as being made a third party defendant by Exxon, Litt and Associated Indemnity Company. It was dismissed on a motion for summary judgment. Tyler Pipe Industries, Inc. and its insurer, Hartford Accident & Indemnity Company, were also made defendants through a supplemental petition by plaintiff.

      . 417 So.2d 1292 (La.App. 1st Cir.1982)


author: DOUCET, Judge. STOKER, Judge,

text:
    ED BULLIARD CO., INC., Plaintiff-Appellee, v. FORETICH-ZIMMER CONSTRUCTION CO., INC., Defendant-Appellant.
    No. 83-546.
    Court of Appeal of Louisiana, Third Circuit.
    April 24, 1984.
    Rehearing Denied May 16, 1984.
    Writ Denied Sept. 14, 1984.

      Aycock, Horne, Caldwell, Coelan & Duncan, David H. Stiel, III, Franklin, for defendant-appellant.
    McBride & Foret, Robert R. McBride, Lafayette, for plaintiff-appellee.
    Before DOMENGEAUX, STOKER and DOUCET, JJ.
   DOUCET, Judge.

Plaintiff, Ed Bulliard Co., Inc., brought suit on a construction contract dated December 18, 1980, against Foretich-Zimmer Construction Co., seeking $22,789.00 plus interest and costs. Defendant answered the petition alleging the contract was mutually rescinded on April 29, 1981 by oral agreement between the parties. The trial court rendered judgment in favor of plaintiff in the sum of $9,000.00. Defendant appeals. We affirm.

Defendant had been awarded the general contract for the renovation and expansion of the New Iberia central office of South Central Bell Telephone Co. Subsequently, defendant obtained several sub-contractors. The contract between the parties provided, inter-alia, that the sub-contractor would have the option, upon three days written notice, to take over such work and complete same at the cost of the sub-contractor and its bondsman.

Contemporaneously with execution of the contract there was an agreement between plaintiff and defendant whereby the former would provide the latter with supplies which did not require labor. A disagreement later arose as to what windows were to be provided by the plaintiff in accordance with the plans and specifications drawn up by the architect. The trial court noted that the windows which were to be provided were not in accordance with the architect’s specifications, and negotiations to remedy the misunderstanding followed as a result thereof. Mr. Foretich and Mr. Bulliard, respective principals in each company, met one day at a Lafayette restaurant and it is there that defendant contends an agreement was reached whereby Mr. Foretich’s company would do the flooring work and supply the windows and, in turn, Mr. Bulliard would not have to supply the windows at a higher price than anticipated.

The trial judge found Mr. Bulliard’s company performed no work under the contract due to defendant’s breach thereof. Plaintiff claims he was damaged in the sum of $9,000.00 — the amount of profits lost by the defendant’s failure to perform. Judgment was rendered accordingly as the trial judge found that there had been no valid rescission of the contract. In reaching this result, the trial court relied on various correspondence between the parties indicating that it was the parties’ plan to proceed with their plans as set forth in the contract.

Defendant appeals, alleging the trial court erred in (1) not finding the parties mutually agreed to cancellation of the contract, and (2) alternatively, the trial court erred in finding the defendant failed to give proper notice of cancellation, and (3) the award of $9,000.00 is excessive and not supported by the evidence.

A written contract may be modified or nullified by mutual consent of the parties. LSA Civ.Code Arts. 1901, 1945; Watson v. Haik, 393 So.2d 173 (La.App. 1st Cir.1980); Arceneaux v. Adams, 366 So.2d 1025 (La.App. 1st Cir.1978). Here, the burden of proving the mutual rescission of the contract was on the defendant. The trial judge found both that there had been no intent to rescind the contract and, regardless, defendant had failed to give three days written notice of cancellation as required by the parties’ original agreement. We have carefully scrutinized the record and conclude it contains no grounds for disturbing the trial court’s factual finding in this regard. Mr. Bulliard testified that the only topic of discussion at the aforesaid restaurant meeting concerned the windows. This is substantiated by evidence showing Mr. Bulliard subsequently ordered windows meeting the architect’s specifications. Correspondence between the parties further supports this conclusion. We find no manifest error.

Where there is a legal right to recovery but damages cannot be exactly estimated, courts have reasonable discretion to assess same based upon all the facts and circumstances of the case. Jordan v. Travelers Insurance Co., 257 La. 995, 245 So.2d 151 (1971) and cases cited therein.

A claim for loss of earnings need not be proved with mathematical certainty, but only by such proof as reasonably establishes the claim, and such proof may even consist of only the plaintiff’s own reasonable testimony. Jordan v. Travelers Insurance Co., supra; Casadaban v. Bel Chemical & Supply Co., Inc., 322 So.2d 854 (La.App. 1st Cir.1975). The absence of independent corroborative evidence of loss of profits is not always fatal to such a claim, rather the absence goes to the weight of evidence. Campbell v. Lelong Trust, 327 So.2d 533 (La.App. 2d Cir.1976), Recherche, Inc. v. Jewelry Jungle, Inc., 377 So.2d 1329 (La.App. 1st Cir.1979). F & F Transfer, Inc. v. Tardo, 425 So.2d 874 (La.App. 4th Cir.1983). Casadaban v. Bel Chemical & Supply Co., Inc., supra. Independent proof of every detail of witness’ testimony is not required to corroborate testimony of witness as to existence of oral contract involving more than $500.00. Ville Platte Concrete Service, Inc. V. Western Casualty & Surety Co., 377 So.2d 532 (La.App. 3rd Cir.1979). A party’s own detailed testimony as to proof of loss may be sufficient to support an award. Stevens v. Dowden, 125 So.2d 234 (La.App. 3rd Cir. 1960).

It is axiomatic that appellate courts will not disturb damage awards in the absence of manifest abuse of discretion by the trier of fact. Recherche, Inc. v. Jewelry Jungle, Inc., supra; Coco v. Winston Industries, Inc. 341 So.2d 332 (La.1977); Reck v. Stevens, 373 So.2d 498 (La.1979). Defendant failed to present any evidence to contradict plaintiff’s estimate of lost profits. The trial judge obviously found plaintiff’s testimony in this respect to be credible. He was not required to detail every item of loss with independent proof. We cannot say the trial judge was clearly wrong in his award of $9,000.00.

For the reasons assigned hereinabove, the judgment appealed is affirmed at appellant’s cost.

AFFIRMED.

STOKER, J., dissents and assigns reasons.

STOKER, Judge,

dissenting.

With respect I dissent from the majority holding in this case. I do not feel that the plaintiff met its burden of proof with respect to the amount of its damages, that is, its loss of profits. The testimony of Edmond Bulliard (Tr. 126-131) on this point was vague and uninformative. It did not meet the liberal standard of Jordan v. Travelers Ins. Co., 257 La. 995, 245 So.2d 151 (1971) concerning estimating losses. As a matter of fact, in the Jordan case the Supreme Court pronouncement concerned a wage earner and the loss of earnings between the plaintiffs accident and trial and future loss of earnings. Earning power was at issue, not loss of profits.

The trial court in this case did not deal with the subject of the amount of damages in its reasons for judgment; the trial court simply accepted the figure of $9,000 testified to by Mr. Bulliard.

It is well settled that the amount of damages sustained by a contractor or subcontractor who is not allowed to perform his contract is his loss of profit determined by subtracting from the amount of his bid or contract price the amount of labor, materials and overhead which would have been necessary to perform the contract. Magnolia Construction Co., Inc. v. Causey, 421 So.2d 990 (La.App.1982), writ denied 426 So.2d 177 (La.1983) and White v. Rimmer and Garrett, Inc., 340 So.2d 283 (La.1976). On cross-examination Mr. Bulliard frankly admitted that he had no idea what his labor costs or materials would be. (Tr. 147-151)

As shown in Magnolia Construction Co., Inc. v. Causey, supra, one method of establishing such costs is by referring to the costs actually incurred by the contractor or subcontractor who performed the work. In any event, if plaintiff had produced any testimony or evidence to show reasonably based estimates of costs of labor, materials and other costs, the estimates could be accepted. As I read the record, plaintiff gave no estimates; all he gave was a general over-all cost estimate to which he added cushions. In his testimony on direct examination Mr. Bulliard appears to be referring to some notes or memoranda; however, he never testified in intelligible or meaningful terms. Nevertheless, as noted above, Mr. Bulliard admitted that there was no way he could know what the labor and material costs would have been. Under these circumstances, I think it is error to apply the standard of Jordan v. Travelers Ins. Co.


author: SAVOIE, Judge.

text:
    N.A. “Red” MASON v. STAUFFER CHEMICAL COMPANY.
    No. 83 CA 0581.
    Court of Appeal of Louisiana, First Circuit.
    April 26, 1984.
    Writ Denied June 8, 1984.

      A. Wayne Stewart, Denham Springs, for plaintiff-appellant N.A. “Red” Mason.
    L. Michael Cooper and M. O’Neal Walsh, Baton Rouge, for American Mfrs. Mut. Ins. Co.
    William R. D’Armond, Baton Rouge, for defendant-appellee Stauffer Chemical Co.
    James H. Gill, Jr., Baton Rouge, for third party defendant-appellee Terothechnology Corp. (Tero).
    Before COVINGTON, COLE, SAVOIE, LANIER and CRAIN, JJ.
   SAVOIE, Judge.

Plaintiff appeals the trial court’s sustaining of defendant’s exception of prescription as to plaintiff’s “Amending and Supplemental Petition.”

On September 6, 1977, plaintiff was injured when a pipeline assembly metal support gave way and fell, striking plaintiff on the head and shoulder. Plaintiff subsequently filed suit on May 17, 1978, alleging injuries to his head and right shoulder, right eye, right ear, right collar bone, and possibly, his brain. In paragraphs 8 and 9 of his original petition, plaintiff alleges as follows:

“8. On September 6, 1977, petitioner was engaged in assisting in the removal and relocation of one of the groups of pipeline which carried acid from the oleon [sic] towers.
“9. The procedure employed to remove the disconnected pipe involved the use of mechanical lifting devices known as ‘cherry pickers.’ When one of these ‘cherry pickers’ lifted a section of one of these acid-carrying pipes, petitioner, on the third deck, moved to avoid being doused by residual acid in the pipe. When the section was lifted, the unattached ‘saddle’ support fell, from a point about 25 feet above petitioner’s position on the third deck, struck him on the head and shoulder, and injured him as hereinafter described.”

On November 23, 1982, plaintiff filed an Amending and Supplemental Petition wherein he claimed further damages sustained as a result of the same incident. In paragraphs 16 and 17 of his amending petition, plaintiff alleges as follows:

“16. Your plaintiff, while working at the site of the accident and particularly while working at the time and place of this accident, came into contact with certain gases, one of which plaintiff believes to be ‘oleom’ but plaintiff reserves the right to amend this paragraph to include other gases.
“17. That the gas ‘oleom’ as well as other gases which plaintiff came into contact with at the time and at the site of this accident is a carcinogen and caused, aggravated, or contributed to a cancerous condition in his body, especially his nose and face.”

Thereafter, defendant filed a peremptory exception of prescription which was maintained by the trial court. At the trial of the exception, the only witness to testify was plaintiff who' testified, in pertinent part, as follows:

“A. We was [sic] , taking down 24-inch oleom pipe out of the pipe pack and I was up on the structure, and then I came down off the structure. I got into the gas and I run [sic] to get out the gas and this piece of pipe hit me on the shoulder and knocked me down. Knocked me out.
“By Mr. Ferrin:
“Q. Sir, do you recall how long you stayed in the gas?
“A. No, not right off. They got me out as soon as they could.
“Q. Is it your allegation in your amended and supplemental petition that the cancer was caused by the gas that you were exposed to when you got hit by the pipe?
“A. True. Yes, Sir.
“Q. On this basis you claim that that caused your cancer?
“A. Yes, Sir.”

In its written reasons, the trial court considered the question of whether plaintiffs amended petition set forth a new cause of action such that it did not relate back to the date of the filing of the original petition. The trial court concluded that plaintiffs original petition alleging defendant’s negligence did not give fair notice and varied greatly with the facts involved in defending a suit based upon being exposed to cancer-causing gas. Applying L.S.A.C.C. art. 3536 which provides for a one-year prescriptive period for torts, the trial court found that plaintiffs alleged tort in his amending petition had prescribed. Accordingly, defendant’s exception of prescription was sustained.

It is well settled that a plaintiff or defendant may amend a petition or answer, despite prescriptive bars, when the original pleading gives fair notice of the fact situation out of which the amended claim or defense arises. L.S.A.-C.C.P. art. 1153; Baker v. Payne and Keller of Louisiana, Inc., 390 So.2d 1272 (La.1980); Chargois v. Fremin, 480 So.2d 302 (La.App. 3rd Cir. 1983). Where the pleadings reveal some factual connexity between the original and the amended assertions and contain sufficient allegations to afford fair notice to the adverse party of the relief sought, amendments should be allowed. Chargois, 430 So.2d at 303.

The defendant herein cites this court to our decision in Gunter v. Plauche, 428 So.2d 1094 (La.App. 1st Cir.1983), as providing the proper analytical framework for us to determine this case. „ We agree. However, defendant claims that Gunter is factually inapposite to the instant case. With this, we disagree. Therein, this court held that a petition asserting dangers for lack of informed consent did not relate back to the original petition alleging surgical malpractice. However, our Supreme Court, granting plaintiff’s writ of certiora-ri, reversed and remanded. See Gunter v. Plauche, 439 So.2d 437, 440, 441 (La.1983). Therein, the Court stated:

“... Article 1153 requires only that the amending petition’s thrust factually relate to the conduct, transaction or occurrence originally alleged. While the original petition did not mention lack of informed consent, the factual events during June 1976 of the consultations and defendant’s advising plaintiff that surgery was necessary were explicitly set forth. The essence of interruption of prescription by suit is notice. Here, defendant had actual notice that judicial relief was being sought arising from that general factual situation of defendant’s June 1977 conduct, and he thus was put on notice that his evidence concerning it should be collected and preserved. (Citations omitted). Both causes of action arose out of the conduct, transaction, or occurrence set forth in the original petition. Plaintiff will not be held to a burden of separating out in his initial pleading the defendant’s actions during that month’s medical service merely because two theories of recovery are possible out of that factual setting. The amending petition did not elaborate at all on the factual setting, and no challenge to its sufficiency was made; the factual allegations made originally met the notice requirement to defendant under art. 1153. The transaction or occurrence giving rise to the demand or object of the suit remained unchanged by the amendment, and, even if the state of facts which constitute [sic] the defendant’s wrong differ [sic] enough so that two causes of action exist, the facts of the transaction which created both duties is [sic] similar enough to support a relation back of the amending petition under art. 1153.” (Emphasis added).

Herein, the defendant had actual notice that judicial relief was being sought arising from the accident of September 6, 1977. The accident or occurrence giving rise to plaintiff’s demand remained unchanged by the amendment. The factual events listed in the original petition more than amply support a finding that notice of a claim for damages for exposure to the gas, Oleom, was given. Having found that the defendant had actual notice of judicial relief being sought, a fortiori, defendant was put on notice that evidence concerning the conduct, transaction, or occurrence should be collected and preserved. We find that the plaintiff’s amending and supplemental petition relates back to the original petition.

For the above and foregoing reasons, judgment of the trial court is reversed and the case remanded back for further proceedings consistent with this opinion. Defendant is to pay all costs.

REVERSED AND REMANDED.


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

text:
    STATE of Louisiana, Appellee, v. Gerald Dewayne JONES a/k/a Jerald Dewayne Jones, Appellant.
    No. 15911-KA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.
    Rehearing Denied May 25, 1984.
    Writ Denied Sept. 14, 1984.

      Caddo Parish Indigent Defender Office by Richard C. Goorley, and Donald R. Minor, Shreveport, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, Paul J. Carmouche, Dist. Atty., by Robert W. Gillespie, Jr., Asst. Dist. Atty., Shreveport, for appellee.
    Before PRICE, JASPER E. JONES and FRED W. JONES, Jr., JJ.
   FRED W. JONES, Jr., Judge.

The defendant, Gerald Dewayne Jones, was found guilty by a jury of second degree murder and armed robbery. Defendant was sentenced to serve life imprisonment at hard labor on the second degree murder conviction, plus a consecutive prison term of 60 years at hard labor on the armed robbery conviction.

Factual Context

On the afternoon of November 24, 1980, Paul DeBroeck returned from work to his rural Caddo Parish mobile home and discovered the body of his wife, Mary De-Broeck, lying face up on the living room floor beneath a sheet. She had died from two gunshot wounds to her chest. Mrs. DeBroeck’s car, a 1980 yellow AMC Concord with a temporary license plate, and her credit cards were missing.

In the ensuing investigation the Caddo Parish Sheriff’s Department was informed by a nearby resident, Earl Eastman, that his .22 caliber pistol was missing from his home and that the defendant had slept at his home the night before the murder. The authorities also learned that the defendant, who had been living in the vicinity of the crime for about two months, left the state bound for Oneonta, Alabama. On the night of the 24th of November a nationwide alert was broadcast for Mrs. De-Broeck’s yellow AMC Concord. On the 25th the sheriff’s department was notified by the Tarrant City, Alabama police that a vehicle fitting the description of Mrs. De-Broeck’s car had been seen in that city and the driver had asked directions to Oneonta, Alabama. Based on this information a warrant was issued for defendant’s arrest on the charge of felony theft.

On April 24, 1981, the defendant was arrested in Garden City, Georgia, at the scene of a burglary. After discovery of the pending charges in Louisiana, defendant was transferred to the Chatham County courthouse in Savannah, Georgia, for extradition. At that time Caddo Parish authorities issued a second arrest warrant charging defendant with first degree murder.

Caddo Parish Sheriff Deputy J.W. Jones arrived in Savannah on April 26, 1981, in order to return the defendant to this state. Deputy Jones testified that after advising defendant of his Miranda rights, defendant informed him that he had been in the home of Paul and Mary DeBroeck on November 24, 1980. The defendant stated that he passed the DeBroeck's mobile home that morning and saw the door open and walked up to the home with the intention of using the telephone to call the police to turn himself in as being AWOL from the army. As he looked in the front door he saw two feet sticking out from underneath a sheet in the living room. The defendant started to use the telephone to call the police, but realizing he was AWOL, he did not and panicked. Defendant then admitted taking the car parked in the carport. He claimed that the credit cards were in the glove compartment of the car. However, he denied shooting Mrs. DeBroeck.

On April 27, 1981 defendant was transported back to Caddo Parish for prosecution in connection with the death of Mary DeBroeck.

At trial the undisputed evidence clearly established that Mrs. DeBroeck died from two gunshot wounds. The bullets recovered at the scene of the crime were fired from a .22 caliber pistol. Other evidence tending to implicate defendant as the murderer was a statement made by him to Wilson Wade Shelley, a friend in Georgia. Shelley testified defendant told him he shot someone twice in Louisiana and threw the gun into a river. At trial defendant admitted the theft of the DeBroeck car and the unauthorized use of the credit cards, but denied killing Mrs. DeBroeck.

This appeal raises issues as to the admissibility of the statements made by the defendant upon arrest and the sufficiency of the evidence to convict.

Assignment of Error No. 1

By this assignment, defendant contends that his statement to Caddo Parish Sheriff Deputy J.W. Jones should have been suppressed. In essence, defendant asserts that he informed three people that he desired counsel prior to making the statement.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the Supreme Court made clear that when an accused invokes his right under Miranda to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation, even if he has been advised of his rights. An accused, having expressed his desire to deal with the police only through counsel, is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversation with the police.

The Louisiana Supreme Court reached a similar conclusion prior to the Edwards v. Arizona decision in the case of State v. Thucos, 390 So.2d 1281 (La.1980). In that case, the Louisiana Supreme Court held that after an accused invokes his right to have counsel present during custodial interrogation, the police failed in their duty to scrupulously honor his right when they initiated further questioning shortly after his request for counsel.

The general rule is that, in a trial on a motion to suppress, the burden of proof is on the defendant to prove the grounds of his motion. La.C.Cr.P. Art. 703(D). One exception to the rule is that the state has the burden of proving beyond a reasonable doubt the voluntariness of a confession which the defendant has moved to suppress as evidence at the trial on the merits. In reviewing the trial judge’s ruling as to the admissibility of the confession, his conclusions on credibility are entitled to the respect due those made by one who saw the witnesses and heard them testify. State v. Rodrigue, 409 So.2d 556 (La.1982); State v. Bouffanie, 364 So.2d 971 (La.1978).

The determination to be made on review of the motion to suppress hearing is whether the defendant carried his burden of proof for the grounds of his motion under Article 708(D) and whether the state has carried its burden of proving beyond a reasonable doubt the voluntariness of the statement which defendant has moved to suppress. In addition, this court is required to give great weight to the trial court’s conclusions on credibility of witnesses. Applying these precepts to the facts found by the trial court, we conclude that any inculpatory statements made by the defendant to the Caddo Parish Sheriff Deputy while in Georgia occurred after the defendant had been advised of his constitutional rights and had voluntarily, knowingly, and intelligently waived them in compliance with Miranda.

The review of the record indicates that the only evidence that defendant had requested counsel prior to making a statement was the testimony of the defendant himself. Defendant states that the first person whom he told that he wanted an attorney was the “deputy of the judge” at the Chatham County, Georgia, jail. Defendant asserts that his next request occurred when he went to Chatham County Judge Brannon’s chambers concerning his extradition back to Louisiana. Defendant next asserts that he informed Caddo Parish Deputy J.W. Jones that he wanted an attorney and that Deputy Jones had told him that he would have to wait until he got back to Louisiana. The record indicates that defendant could not identify the deputy of the judge. Additionally, Judge Bran-non of Chatham County, Georgia, testified at the motion to suppress hearing and denied the defendant’s assertions. Deputy J.W. Jones also denied that defendant requested counsel prior to returning to Louisiana.

The State called five witnesses on its behalf, all of whom contradicted the testimony of defendant. The record contains ample support for the trial court’s finding that defendant had not requested counsel prior to making his statement and that his statement was given freely and voluntarily. Additionally, the defendant signed a waiver of his Miranda rights form prior to his statement. We therefore find this assignment of error to be without merit.

Assignment of Error No. 2

By this assignment, defendant asserts that the trial court erred in not granting a mistrial when a witness for the prosecution testified concerning the defendant’s absence from the army without leave. However, defendant has not briefed this assignment of error and it will, therefore, be considered abandoned. State v. Domingue, 298 So.2d 723 (La.1974); State v. Williams, 338 So.2d 672 (La.1976).

Assignment of Error No. 3

By this assignment, defendant asserts that the evidence did not support a verdict of guilty beyond a reasonable doubt.

In reviewing the sufficiency of the evidence to support a conviction, an appellate court in Louisiana is controlled by the standard enunciated by the U.S. Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

In cases involving circumstantial evidence, the defendant is entitled under the provisions of LSA-R.S. 15:438 to have the jurors instructed that they must be satisfied that the overall evidence excludes every reasonable hypothesis of innocence. State v. Sutton, 436 So.2d 471 (La.1983).

Thus, the defendant has a statutory right to an instruction that the jurors must conclude that no reasonable hypothesis of innocence exists, as well as a constitutional (and statutory) right to appellate review of the sufficiency of evidence. An appellate court reviewing the sufficiency of evidence must resolve any conflict in the direct evidence by viewing that evidence in the light most favorable to the prosecution. When the direct evidence is thus viewed, the facts established by the direct evidence and inferred from the circumstantial evidence must be sufficient for a rational jury to conclude beyond a reasonable doubt that the defendant was guilty of every essential element of the crime. As stated by the Louisiana Supreme Court in State v. Chism, 436 So.2d 464 (La.1983) the circumstantial evidence rule of LSA-R.S. 15:438 may not establish a stricter standard of review than the more general reasonable juror reasonable doubt formula, but it emphasizes the need for careful observance of the usual standard, and provides a helpful methodology for implementation in cases which hinge on the evaluation of circumstantial evidence. In sum, the Jackson standard is a constitutional standard gleaned from the due process clause of the 14th Amendment. R.S. 15:438 is a statutory evidentiary standard — not a constitutional standard — and as such, forms the heart of the inquiry in affecting the sufficiency of the evidence under the Jackson standard of appellate review. A single standard for appellate review, comporting with the sufficiency standard established in Jackson v. Virginia, is all that is constitutionally required. State v. Chism, supra.

Defendant asserts in brief that there is no direct evidence of the essential elements of the crime charged. The state asserts that the testimony of Wilson Wade Shelley who was arrested along with the defendant in Garden City, Georgia, offered direct proof of the crime charged. According to Shelley, defendant told him that he had shot somebody in Louisiana and that he had shot the person twice with a pistol which he had thrown in a river. The state asserts that this statement made by the defendant is, in fact, a “confession”. Defendant asserts that the statement constitutes an “admission”.

The term .“admission” is applied to those matters of fact which do not involve criminal intent; the term “confession” is applied only to an admission of guilt, not to an acknowledgment of facts merely tending to establish guilt. LSA-R.S. 15:449. There is a broad distinction between the mere admission of inculpatory facts and a confession of guilt. Where a person only admits certain facts from which the jury may or may not infer guilt, there is no confession. An admission is circumstantial evidence for it is merely an acknowledgment of facts from which an inference of guilt can be drawn. A confession is direct evidence for it is an acknowledgment of guilt for which no inference need be drawn. McCormick on Evidence, § 185 (2d Ed.1972); Wigmore, Law of Evidence, § 25 (3rd Ed.1940).

Applying the jurisprudence to the testimony of Shelley indicates that the statement made by defendant to Shelley constituted “admissions”. The statements made by defendant to Shelley did not involve intent, they merely stated matters of fact which tended to establish guilt. Defendant did not state the victim’s name, the purpose of the shooting, where the shooting occurred, or any other event relating to the shooting. Additionally, since the statement made by defendant constituted an admission, it is circumstantial evidence of the crime charged.

A review of the record evidence indicates that there was no direct evidence establishing the defendant’s guilt. However, we find there to be ample circumstantial evidence from which a rational jury could find the defendant guilty of the essential elements of the crime charged.

First, the defendant confessed to deputy J.W. Jones that he had in fact been at the DeBroeck residence on the morning of November 24, 1980 and had taken the De-Broeck car and credit cards. Other evidence tending to establish that defendant was at the scene was a cigarette butt found in an ashtray in the DeBroeck home. It was established at trial that the person who smoked that cigarette had a blood type “A” and was a “secreter”. It was also established that the victim smoked a different brand of cigarette and also had blood type “0”. Blood samples taken from the defendant indicated that defendant has blood type “A” and is a “secreter”. Pat Wojakiewicz, of the Northwest Louisiana Criminalistics Laboratory, testified that a “secreter” is a person whose blood type can be found in the saliva or seminal fluid. The expert also indicated that approximately 80% in blood group “A” are going to be secreters. However, people who have blood group “A” constitute approximately 32% of the people in North Louisiana. This clearly establishes strong circumstantial evidence that defendant was in fact in the DeBroeck home.

Although the defendant denied shooting Mrs. DeBroeck, the admission made by defendant to Wilson Wade Shelley infers that the person he shot in Louisiana was the victim in this case. Although the .22 caliber murder weapon was never recovered, defendant had access to the .22 caliber pistol belonging to Earl Eastman, at whose house he slept the night before the murder. Coincidentally, Eastman discovered his pistol missing on the afternoon of November 24th.

After reviewing this evidence in the Jackson v. Virginia constitutional due process standard, we find that the circumstantial evidence in this case provided sufficient evidence from which a rational fact finder could find the defendant guilty of the essential elements of the crime charged. Even if this court were to apply the R.S. 15:438 circumstantial evidence rule, there appears to be no reasonable hypothesis' of innocence. Therefore, we find this assignment of error to be without merit.

Decree

For the reasons stated, the convictions and sentences are affirmed.


author: NORRIS, Judge.

text:
    Calvin HENSON, Plaintiff-Appellant, v. Bennie R. COPELAND, et al., Defendant-Appellee.
    No. 16219-CA.
    Court of Appeal of Louisiana, Second Circuit.
    April 30, 1984.

      Joe D. Guerriero, Monroe, for plaintiff-appellant.
    Swellings & Barnes by O.P. Barnes, III, Monroe, for defendant-appellee.
    Before PRICE, SEXTON and NORRIS, JJ.
   NORRIS, Judge.

Plaintiff, Calvin Henson, appeals a judgment dismissing his suit with prejudice for his failure to answer interrogatories. We reverse and remand for further proceedings.

Familiarity with the detailed chronology of events preceding this dismissal will facilitate an understanding of our resolution of this issue. On November 22, 1978, Henson filed a suit for damages sustained in a multi-vehicular collision which occurred on November 28, 1977 on Interstate 20 in Oua-chita Parish. Nine defendants were originally named including Northeast Louisiana Agricultural Corporation, its employee Samuel R. Wroten, and Fireman’s Fund American Insurance Corporation. After extensive pre-trial discovery and activity, all defendants with the exception of the above named three parties were released through a compromise settlement of those claims.

Thereafter, the remaining defendants sought further discovery of information pertaining to Henson’s claim for lost income and medical expenses by propounding eight interrogatories directed to Henson on March 19, 1982. Service of these interrogatories was accomplished through Henson’s attorney of record, who withdrew on April 27, 1982 with the consent of Henson. On May 27, 1982, defendants filed a motion to compel answers to interrogatories. Because service of this motion was improper, a second motion was filed on June 23, 1982, which was heard on July 6, 1982. Henson appeared in proper person at that hearing. Introduced into evidence were two letters written to Henson; one from his attorney who had withdrawn advising him of the necessity of responding to the interrogatories and another from defendants’ counsel requesting that Henson answer the interrogatories and informing him that failure to do so would result in the motion to compel. Henson denied receiving defense counsel’s letter which was signed for by his father and the trial court informed him that it would attach no weight to the letter because it was received by Henson’s father rather than Henson. At this hearing, Henson argued that the information sought by defendants through these interrogatories had been made available to the defendants through other means and that he should not have to provide it again. The trial court instructed Henson to answer the questions to the best of his ability within ten working days and to do it in writing. No further instructions were given to Henson as to the form or procedure required for the answering of these interrogatories and Henson was not warned that failure to answer within that period could result in certain sanctions including dismissal of his lawsuit. The issue of fees was taken under advisement, and attorney’s fees were subsequently awarded in the amount of $250.

On July 29, 1982, the interrogatories remained unanswered and a rule nisi was issued directed to Henson to show cause why he should not be held in contempt for failure to comply with the court’s orders and condemned to pay attorney’s fees. This rule was returned unserved and the original hearing date of August 4, 1982 was refixed by order to September 17, 1982. Neither the rule nor the order refix-ing it is reflected in the record as ever having been served.

No further activity is shown of record until January 24, 1983 when Clayton Y. Bankston, Jr. was enrolled as counsel for Henson. On February 22, 1982, certain documents were filed in the record by Henson, including a letter to Henson from Richard L. Weil, another attorney, stating that he was terminating his representation of Henson and that he had been informed by counsel for defendants that a motion to dismiss the case for failure to answer the interrogatories was being set; a letter from Henson to the court stating that he had not been at the September 17, 1982 hearing because of a death in the family; copies of medical and tax forms; a page from a deposition in which he authorized defendants’ counsel to obtain his medical records; a letter from one of his treating physicians; 1976 and 1974 tax returns; a medical authorization; a list of physicians; the name of the officer who investigated the accident; other names and addresses; an amount of claimed wage loss; and the names and addresses of two oil companies.

On March 2, 1983, a pleading entitled “Motion and Order for Hearing on Motion to Dismiss” was signed by the trial court and a hearing on a motion to dismiss was fixed for April 4, 1983. This motion reads:

On motion of Defendants, through undersigned counsel, and on a showing that the Motion to Dismiss for failure to comply with orders for discovery is presently pending and is ready for hearing. [Emphasis added.]

However, it is significant that the record does not contain any prior or subsequent “Motion to Dismiss”. Although there is no indication in the record that a copy of the earlier rule for contempt accompanied the Motion and Order for Hearing on Motion to Dismiss or had ever been served, this later order was nevertheless served on Henson who appeared at the hearing fixed thereby for April 4, 1983, in proper person.

After this hearing in written reasons for judgment, handed down on August 2, 1982, the trial court stated that the matter was before the court on a motion to dismiss Henson’s suit for failure to answer the interrogatories. Contained therein were the following findings: (1) that the interrogatories had not been answered although Henson had been afforded an opportunity to be heard prior to the order compelling answers; (2) that Henson was aware of the time limits available within which to answer; (3) that the failure to answer was not attributable to his attorney; (4) that the earlier withdrawal of Henson’s attorney on April 27, 1982 was of no avail because Henson had demonstrated no inability to obtain an attorney citing the fact that there had been at least four attorneys of record since the suit’s commencement; (5) that the documents filed by Henson were woefully inadequate as “answers” because they were not in proper form, were not served on defendants and were not made under oath; (6) that there were no mitigating circumstances; (7) that the failure to. answer the interrogatories had been arbitrary and capricious; and (8) that this failure had occurred after a thorough explanation of the consequences of the situation to Henson by the trial court. Accordingly, the trial court concluded that Henson’s refusal to answer justified the invocation of the penalty provided for by La.C. C.P. Art. 1471(3) and that all procedural steps had been complied with prior to the court’s making this determination.

After a careful review of this difficult record, we respectfully disagree with the trial court’s finding that all of the consequences of Henson’s failure to answer had thoroughly been explained to him by the trial court and that all of the procedural steps had been complied with prior to the determination that the motion to dismiss should be granted. These findings are not supported by the record. We conclude that the trial court abused the discretion afforded it in such matters by imposing the ultimate sanction of dismissal with prejudice under the facts of this case. In arriving at this conclusion, we have considered the following legal and factual bases:

La.C.C.P. Arts. 1469-74 provide the means for the enforcement of discovery. In particular, the following articles apply: Art. 1469

A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling discovery as follows:
(1) An application for an order to a party or a deponent who is not a party may be made to the court in which the action is pending.
(2) If a deponent fails to answer a question propounded or submitted under Articles 1437 or 1448, or a party fails to answer an interrogatory submitted under Article 1457, or if a party, in response to a request for inspection submitted under Article 1461, fails to respond that inspection will be permitted as requested or fails to permit inspection as requested, the discovering party may move for an order compelling an answer, or a designation, or an order compelling inspection in accordance with the request. When taking a deposition or oral examination, the proponent of the question may complete or adjourn the examination before he applies for an order.
If the court denies the motion in whole or in part, it may make such protective order as it would have been empowered to make on a motion made pursuant to Article 1426.
(3) For purposes of this Subdivision an evasive or incomplete answer is to be treated as a failure to answer.
(4) If the motion is granted, the court shall, after opportunity for hearing, require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in obtaining the order, including attorney’s fees, unless the court finds that the opposition to the motion was substantially justified or that other circumstances make an award of expenses unjust.
Art. 1471.
If a party or an officer, director, or managing agent of a party or a person designated under Articles 1442 or 1448 to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under Article 1469 or Article 1464, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:
(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order.
(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence.
(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any party thereof, or rendering a judgment by default against the disobedient party.
(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.
(5) Where a party has failed to comply with an order under Article 1464, requiring him to produce another for examination, such orders as are listed in Paragraphs (1), (2), and (3) of this Article, unless the party failing to comply shows that he is unable to produce such person for examination.
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

These provisions grant the trial court the power to compel discovery and the discretion to impose various sanctions on a party or his attorney for unjustified failure to comply with the statutory scheme or to obey an order compelling discovery. Because the granting of relief against a recalcitrant defendant rests within the trial judge’s discretion, it will not be disturbed unless the record shows a clear abuse of this discretion. When a party has been given sufficient notice and opportunity to be heard prior to the imposition of a penalty, the sanction of dismissal may be within the bounds of the trial court’s discretion. Butts v. Cummings, 360 So.2d 534 (La.App. 2d Cir.1978).

As later stated in Allen v. Smith, 390 So.2d 1300 (La.1980):

The Louisiana rule empowering a court to impose these sanctions is identical to Federal Rule of Civil Procedure 37(b), (d). Accordingly, the jurisprudence interpreting and applying the federal rule may provide useful precepts in bringing La.C. C.P. art. 1473 into action in the present case.
The United States Supreme Court held in Societe Internationale Pour Participations Industrielles v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 1096, 2 L.Ed.2d 1255, 1267 (1958) that Rule 37
“should not be construed to authorize dismissal of [a] complaint because of petitioner’s noncompliance with a pretrial production order when it has been established that a failure to comply has been due to inability, and not to wilfulness, bad faith, or any fault of petitioner.”
While there have been amendments to the rule since the decision in Rogers, the high court has indicated that the changes will not affect the teachings of the quoted language from that decision. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).
Many of the federal courts of appeal have decided that the dismissal of a complaint with prejudice is such a drastic penalty for failure to make discovery that a district court should apply it only in extreme circumstances. [Citations omitted.]

In interpreting the analogous federal rule, the court in Symeonides v. Cosmar Compania Naviera, S.A., 433 So.2d 281 (La.App. 1st Cir.1983) stated:

In Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 102 S.Ct. 2099, 72 L.Ed.2d 492 (1982), the United States Supreme Court had occasion to consider the application of sanctions under Federal Rule of Civil Procedure 37(b)(2). At 2107 the Court noted:
“Rule 37(b)(2) contains two standards — one general and one specific — • that limit a district court’s discretion. First, any sanction must be specifically related to the particular ‘claim’, which was at issue in the order to provide discovery.”
Having noted above that the Louisiana rules of civil procedure were patterned after the federal rules, it is no surprise that LSA-C.C.P. art. 1471 contains the same standards as Federal Rule 37(b)(2).
In Ireland, the discovery sought dealt with the issue of whether the court had personal jurisdiction over the defendant. In reviewing the decision of the district court to impose the Rule 37(b)(2) sanction of treating as established the personal jurisdiction over the defendant for failure to comply with discovery, the Supreme Court reached its decision that the sanction was just based on the following four factors: (1) defendants continued delay and obvious disregard of court orders; (2) defendants repeated failure to comply with their agreements regarding discovery orders within the specified time periods; (3) the fact that plaintiff’s allegations that the court had personal jurisdiction over defendants were not frivolous, and thus the attempted use of discovery to substantiate the claims was not an abuse of the judicial process; (4) defendants had ample warning that their continued failure to comply with discovery would lead to the sanctions.

Applying the rationale set forth above, we conclude that the imposition of the ultimate sanction of dismissal in the instant case is not “just” in the factual context of this case. First of all, while we concede that there was continued delay present in this case, we do not find that there was an obvious disregard of repeated orders of the court by Henson. At the hearing on the motion to compel answers, the defendant appeared in proper person. The trial court after hearing the evidence informed Henson that he had ten days to answer the interrogatories. The crux of the trial court’s order to Henson was that he get something in writing. We find no instructions that this written document or documents be in proper form or notarized. While the documents filed some seven months later were not in proper form or notarized, because of the ambiguous instructions given Henson by the trial court, we cannot conclude that there had been an obvious disregard of court orders prior to the imposition of the sanction. While we admit that these documents are not answers to interrogatories as contemplated by the Code of Civil Procedure, they are in writing as ordered by the Court and generally concern the subject matter raised by the interrogatories. This order compelling Henson to answer the interrogatories in writing within 10 days is the only court order that Henson did not obey in connection with the eight interrogatories. Furthermore, there is nothing contained within this record which we have been able to find which supports a conclusion that Henson was aware that his failure to answer these interrogatories could result in the imposition of the ultimate sanction of dismissal of his suit. In fact, we have been unable to find any reference in the transcripts of the hearings that we would construe as a warning by the trial court to Henson that his failure to comply with discovery would lead to any sanctions. Thus, at least two and perhaps three of the four factors set forth in Ireland are simply not present. Therefore, we conclude that the imposition of this particular sanction in this particular ease constituted an abuse of the trial court’s discretion.

Although unnecessary to the ultimate resolution of this case, there is another consideration which lends support to the conclusion that the trial court erred in dismissing this suit. It is obvious from our reading of the trial court’s reasons, the briefs of both parties, and the transcript of evidence taken at the hearing which resulted in the dismissal that all parties were proceeding under the assumption that a motion to dismiss had been filed and fixed for hearing. A proceeding to impose sanctions for failure to comply with a discovery order should be instituted by written contradictory motion. La.C.C.P. Arts. 961-963. Such a hearing requires proper notice. Billiot v. Sea Life, Inc., 384 So.2d 1023 (La.App. 4th Cir.1980).

The only written, contradictory motion contained within the record is the rule for contempt filed some eight months prior to the hearing.. This rule was never served. See La.C.C.P. Art. 225. While it was continued on one occasion to September 17, 1982, by written order, this date passed without any further action. This rule for contempt is not referred to again nor was any further attempt made to refix a hearing date or effect service of it on Henson. It is ordinarily incumbent upon the proponent of a motion to move for a hearing date. Otherwise, it may be considered that the . ¾ tion has been abandoned. State v. Wagster, 361 So.2d 849 (La.1978). Furthermore, when the moving party fails to call his motion to the attention of the court and insist upon a ruling thereon but instead files other pleadings inconsistent therewith, he may be held to have abandoned his first motion, depending on the circumstances and the equities. Kemper v. Doyal, 212 So.2d 166 (La.App. 3d Cir.1968).

Under the facts of this case, we conclude that defendants by their actions abandoned their earlier rule for contempt and proceeded to obtain an order fixing a hearing date on a non existing “pending” motion to dismiss. The order fixing this “motion” for hearing was signed some eight months after the original rule was filed. In our view, this order was improperly issued because it was not based on a properly filed motion to dismiss. Compare Dibert, Bancroft & Ross Co., Ltd. v. Westinghouse Air Brake Co., 323 So.2d 482 (La.App. 4th Cir. (1975). While it is obvious that all concerned proceeded as if a valid motion was pending, and no objections were made, we are of the opinion that it would be unjust and inequitable to allow this suit to be dismissed as to this unrepresented plaintiff upon the posture of this record.

Because the sanction of dismissal of a lawsuit is a drastic remedy it should be imposed only in extreme circumstances and after all procedural safeguards have been followed. The trial court in its reasons specifically found that all procedural safeguards had been followed prior to the imposition of the sanction. Contained within its reasons is a reference to the earlier hearing date on the rule for contempt which leads us to believe that the trial court felt that the rule had in fact been a motion to dismiss. Accordingly, because of the confused state of the record, the trial court obviously believed that it was conducting a hearing on a motion to dismiss. Additionally, while La.C.C.P. Art. 1471 contemplates dismissal as a sanction, it also contains other less onerous sanctions which might have been considered by the trial court had a proper motion been before the court for review and consideration. It is apparent that the trial court did not consider alternative sanctions in arriving at its decision to dismiss this suit. The trial court’s specific finding that all procedural safeguards had been followed prior to the dismissal is in error. Henson had received no notice of any written motion to dismiss other than an order fixing the non-existent motion for hearing. He had obviously been informed through informal channels that he was to attend a hearing on a motion to dismiss but a proper motion had not been served on him.

While lack of service in and of itself may be waivable, when all of these facts are construed together, we conclude that the imposition of the ultimate sanction of dismissal in this case constituted an abuse of discretion.

For the foregoing reasons, the judgment of the trial court dismissing the suit is reversed, the suit against defendants is reinstated, and the case is remanded to the district court for proceedings consistent with this opinion. Costs of this appeal are cast against appellees.

JUDGMENT REVERSED; CASE REMANDED.

      . Despite the fact that Clayton Bankston, Jr. was the attorney of record for Henson during this pertinent period according to the record, there was no service on Bankston, no reference was made to him by the court or the parties, and Henson represented himself.

      . The trial court did not recognize and may not have realized that Bankston had enrolled and had never officially withdrawn.

      . Henson obtained new counsel after the April 4, 1983 hearing.