text:
    Luz SOSA, Femme Sole, v. CHANDLER MACHINE COMPANY, et al.
    No. CA 1889.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Frederick J. Gisevius, Jr., Jane M. Gisevi-us, New Orleans, for appellant.
    Borrello & Huber, Bruce J. Borrello, Me-tairie, for appellee.
    Before ARMSTRONG, CIACCIO and LOBRANO, JJ.
   CIACCIO, Judge.

Plaintiff appeals from a judgment of the district court which granted summary judgment in favor of defendant Chandler Machine Sales Company. We reverse that judgment and remand this matter for further proceedings.

At the time of this incident, January 24, 1973, Luz Sosa was employed by Wembly Industries, Inc., of New Orleans, as a machine tacker. At the time of the accident she was operating a tacking machine which was allegedly manufactured by Chandler Machine Company and sold by Chandler Machine Sales Company. Ms. Sosa sustained injuries to the fingers of her right hand when they became enmeshed in the automatic tacking machine. The machine which allegedly caused the injuries was identified by plaintiff’s employer as a Chandler tacking machine, Class 600250, Serial No. 31552. Plaintiff sued Chandler Machine Company as the manufacturer of a defective product. She amended her petition to also include as a defendant, Chandler Machine Sales Company, Inc. (hereafter referred to as Chandler Sales). Sosa alleges that Chandler Sales is liable as the manufacturer and/or seller of the tacking machine and tacking machine stand, in that the product was not equipped with a safety guard or device.

Chandler Sales filed a motion for summary judgment. It’s first motion for summary judgment was denied, however it was successful in its second attempt to secure summary judgment.

The sole issue on appeal is whether the trial court erred when it granted the motion for summary judgment filed by Chandler Sales.

The Louisiana Supreme Court, in a recent decision, discussed the issue of summary judgment. In the case of Industrial Sand and Abrasive, Inc. v. Louisville and Nashville Railroad Company, et al., 427 So.2d 1152 at 1154-1155 (1983) that Court stated:

The sole purpose for the motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. Miller v. East Ascension Tel. Co., 263 So.2d 360 (La.App. 1st Cir.), writs denied, 262 La. 1121, 266 So.2d 430 (1972); cf. Albatross Shipping Corp. v. Stewart, 326 F.2d 208 (5th Cir.1964); see also Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963); Comment, Development of Jurisprudence in Louisiana Ralative to Summary Judgment since 1960, 12 Loyola L.Rev. 128 (1965-66). The summary judgment procedure in Louisiana is set out in La.C.C.P. art. 966 et seq...
La.C.C.P. art 966 provides that any party may move for a summary judgment at any time, and the mover is entitled to summary judgment in his favor “if the pleadings, depositions, answers to interrogatories, and admissions of fact, together with the affidavits, if any, show that there is no genuine issue as to a material fact, and that the mover is entitled to judgment as a matter of law.” Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772 (La.1980); cf. Fed.Rule Civ.Pro. 56. The burden is on the mover to show clearly that there is not a genuine issue of material fact in dispute, and any reasonable doubt as to the existence of a genuine issue of material fact must be resolved against the mover and in favor of trial on the merits. Thornhill v. Black, Sivalls & Bryson, 394 So.2d 1189 (La.1981); White v. Baker Manor Nursing Home, 400 So.2d 1168 (La.App. 1st Cir.), writs denied, 403 So.2d 68 (La.1982); cf. Erco Industries, Ltd. v. Seaboard Coast Line Railroad Co., 644 F.2d 424 (5th Cir.1981); Joplin v. Bias, 631 F.2d 1235 (5th Cir.1980).
To satisfy this burden, the mover must meet a strict standard of showing that it is quite clear as to what is the truth and that there has been excluded any real doubt as to the existence of a genuine issue of material fact. The pleadings, affidavits, and documents of the mover must be scrutinized closely, while those of the opponent to the motion are to be indulgently treated. Vermilion Corp. v. Vaughn, 397 So.2d 490 (La.1981); Mashburn v. Collin, 355 So.2d 879 (La.1977); cf. Adickes v. S.H. Kress Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970).

Our examination of the record indicates that the trial court erred in granting the motion for summary judgment filed by Chandler Sales.

In support of its motion for summary judgment, this defendant filed an affidavit by Robert F. Maxant, a manager of this company, wherein he stated that his companies’ records indicated that the machine which was identified by the plaintiff as causing her injuries (i.e., “Class No. 600250, Serial No. 31552”), was shipped two months after the plaintiff’s accident. Additionally, the affiant states that the head of the machine and the table were purchased by this defendant and shipped together without alteration directly to Wembly Industries Inc.

The parties agree that the machine, erroneously identified by plaintiff’s employer, as Class No. 600250, Serial No. 31552, was not the machine which caused Sosa’s injuries. The plaintiff does allege that she was injured by a Chandler tacking machine which was sold and delivered by Chandler Machine Sales Co. to Wembley prior to the date of this accident. The affidavit of Chandler Sales does not negate this material issue of fact.

A factual dispute exists as to whether prior to January 24, 1973, Chandler Sales sold and delivered a Chandler tacking machine to Wembly, which machine caused the plaintiffs injuries. Since the mover has failed to bear its burden of showing that no genuine issue of material fact exists, the trial judge erred in granting the summary judgment.

Accordingly, for the reasons assigned the judgment of the district court is reversed and the case is remanded to the district court for proceeding consistent herewith. Costs are assessed against the appellee.

REVERSED AND REMANDED.


source: Caselaw Access Project

author: CIACCIO, Judge.

license: Public Domain

text:
    Wilmer J. BALTAZOR v. Dorothy B. WALDEN, et al.
    No. CA 1945.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Denied Jan. 14, 1985.

      Edward J. DeMartini, Kenner, and Frank Rabito, New Orleans, for appellants.
    A. Bowdre-Banks, Jr. of Banks & Fritch, New Orleans, for appellee.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   CIACCIO, Judge.

The issue on this appeal concerns the right of a corporation to reinstatement and continued existence following a revocation by the Secretary of State pursuant to La. R.S. 12:163 A.

Plaintiff, Wilmer J. Baltazor, appellee, is a shareholder of one-third (¾⅞) of the outstanding shares of the defendant corporation, Baltazor, Inc., and is an officer and director of that corporation. Defendants, Dorothy B. Walden and Albert A. Baltazor, each own one-third (Vs) of the outstanding shares of Baltazor, Inc., and are officers and directors of that corporation. Also named as a defendant is Baltazor Fabrics, Inc.

This law suit began when plaintiff filed a petition entitled “Shareholder’s Secondary Action for Damages, For the Appointment of a Receiver, and On Promissory Note.” Plaintiff alleged that the individual defendants had wasted, misused and misapplied the assets of both of the corporate defendants, and thereby caused him damage. Plaintiff prayed for dissolution of the two corporations and for the appointment of a liquidator or, alternatively, receivers to take charge of all corporate property. Plaintiff also prayed for judgment on a promissory note, damages, expenses of the litigation, attorney fees, costs and interest. All defendants answered plaintiff’s petition.

Plaintiff then filed a “Petition for Temporary Restraining Order and Rule for Preliminary Injunction.” In this second petition plaintiff reiterated an allegation of the first petition that the articles of incorporation and franchise of Baltazor, Inc., had been revoked by the Secretary of State pursuant to La.R.S. 12:163 A. Plaintiff requested that defendants be enjoined from holding a meeting of the board of directors and from executing a certain lease.

Defendants answered, stating that the revocation by the Secretary of State had been set aside and that the articles of incorporation and charter had been reinstated.

At trial, plaintiff offered no proof that defendants were “wasting, misusing and misapplying the assets of both corporations.” The testimony in the record dealt solely with the failure of the corporation to file its annual reports and the action of the Secretary of State in revoking and reinstating the defendant corporation and in issuing a new charter to the second “Baltazor, Inc.”

The trial court issued a preliminary injunction enjoining defendants “from executing any leases, loans or any business on behalf of Baltazor, Inc. other than that business customarily and usually necessary for the day to day operations of Baltazor, Inc.” The judgment also set the matter for trial on the permanent injunction.

After a hearing, the trial judge issued a permanent injunction “restraining and prohibiting [defendants] from holding a meeting of the Board of Directors of the defendant corporation, Baltazor, Inc.” The judgment further ordered the appointment of a temporary liquidator for Baltazor, Inc. From this judgment defendants have appealed. We reverse.

Baltazor, Inc. is a closely held corporation whose stock is equally divided among plaintiff, Wilmer J. Baltazor, defendant, Dorothy B. Walden, and defendant, Albert A. Baltazor. On March 13, 1982, under the authority provided in La.R.S. 12:163 A, the Secretary of State revoked the articles of incorporation and franchise of Baltazor, Inc. for failure to file an annual report for three consecutive years. On June 21, 1983, documents were filed with the Secretary of State incorporating a new Baltazor, Inc. The incorporators were plaintiffs attorneys of record in this proceeding. We presume, as there is nothing in the record to indicate otherwise, that the incorporation was accomplished in a representative capacity on behalf of plaintiff. On June 22, 1983, the required annual reports were filed and the appropriate fees were paid for the reinstatement of the original Baltazor, Inc. The Secretary of State issued a certificate of reinstatement setting aside the previous revocation “as though said revocation had never occurred.” Subsequently, when the updated records of the Secretary of State revealed the existence of the two corporations named Baltazor, Inc., he informed the original Baltazor, Inc. that reinstatement could not take place under that name. (Baltazor, Inc. had been enjoined, however, from conducting a board of directors meeting at which a name change could be accomplished.)

In granting the permanent injunction, the trial judge reasoned:

“The statute (R.S.12:163) authorizes the reinstatement upon application within one year from the effective date of the revocation. The charter and franchise of the defendant corporation, Baltazor, Inc. were revoked on May 13, 1982. Any action taken by the Secretary of State in an attempt to reinstate the charter and Articles of Incorporation more than one year after the date of revocation is unauthorized and is therefore of no effect.”

The judge further ordered the appointment of a temporary liquidator pursuant to his authority under La.R.S. 12:143 E.

The language of La.R.S. 12:163 does more than authorize reinstatement within one year of revocation. Reinstatement within one year is required if all prerequisites are met:

E. The charter and articles of incorporation shall be reinstated provided an application for reinstatement, the reinstatement fee and the current annual report is filed with the secretary of state within one year after the effective date of the revocation. (Emphasis ours)

The statute is silent concerning reinstatement beyond one year of the effective date of the revocation, and contains no language prohibiting reinstatement beyond one year.

The Secretary of State is charged with the administration of the state corporation laws. La. Const, of 1974 Art. 4 Sec. 7. The trial testimony of a representative of the office of the Secretary of State indicated that reinstatement beyond one year of revocation is customarily permitted, and that if the corporate name has been taken, reinstatement is still permitted, combined with a requirement that the name be changed or amended. We have found nothing which prohibits this administrative policy. If all prerequisites are met, there is no legal impediment to the authority of the Secretary of State to reinstate a corporation beyond one year from revocation.

Appellee argues that reinstatement is barred because the corporate name has been assumed by another entity. Corporate existence is not absolutely dependent upon the selection of the corporate name. If there occurs a conflict with regard to the corporate name, that does not affect or vitiate the corporate existence. La.R.S. 12:23 F. Further, legal questions remain unanswered regarding the propriety of plaintiff’s action in having his representatives appropriate the corporate name of the original corporation to plaintiffs new corporation while the plaintiff was serving in the fiduciary capacity of director and officer of the first corporation, and, under these circumstances, whether the original corporation is entitled to reclaim its corporate name which may be a valuable property right. However, these issues need not be resolved at this time but may be resolved in future legal proceedings.

We find that the trial court erred by concluding that reinstatement by the Secretary of State more than one year after the date of revocation is unauthorized and of no effect. We do not read this state’s corporation laws as dictating the mandatory involuntary dissolution of a corporation solely because of the failure to file for reinstatement within one year of revocation. We do not interpret La.R.S. 12:143 A (8) as providing for such a result. La. R.S. 12:143 A (8) requires a “judgment annulling, vacating or forfeiting the corporation’s articles and franchise.” “Judgment”, in this instance, includes prior requirements of notice in writing, demand for correction of the situation giving rise to the action and proceedings in a court of competent jurisdiction. See La.R.S. 12:163 as enacted by La.Aets 1968, No. 105 Sec. 1 (this same act created R.S. 12:143). Revocation pursuant to the administrative powers of the Secretary of State does not satisfy this requirement. To the extent that River Cities Construction Co., Inc. v. Barnard & Burk, Inc., 413 So.2d 666 (La.App. 1st Cir.1982), expresses a different opinion, we disagree.

We hold that it was within the power of the Secretary of State in administering this state’s corporation laws to reinstate a corporation (which has satisfied the requirements for reinstatement) more than one year after the effective date of revocation.

Further, we note that during the most recent legislative session La.R.S. 12:163 was amended to mandate reinstatement within three years of revocation. Three years has not elapsed since the revocation concerning the original Baltazor, Inc.

Because we find it was within the power of the Secretary of State to reinstate the original Baltazor, Inc. we reverse the judgment of the district court enjoining any meeting of the board of directors. Further, because we consider the appointment of the temporary liquidator, to have resulted directly from the enjoining of the board of directors based on an erroneous interpretation of R.S. 12:163 E, we also set aside that appointment. This matter is remanded to the district court for further proceedings consistent with this opinion. All costs of this appeal are to be paid by plaintiff-ap-pellee.

REVERSED AND REMANDED.

      . As noted above, whether the original Baltazor, Inc. may reclaim its name or will be required to amend its name will have to be determined by further proceedings.


author: LOBRANO, Judge.

text:
    STATE of Louisiana v. Daniel PATTERSON.
    No. KA-2211.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry F. Con-nick, Dist. Atty., Mary Charlotte McMullan, Joanne C. Marier, Asst. Dist. Attys., New Orleans, for appellee.
    John M. Lawrence, Orleans Indigent Defender Program, New Orleans, for appellant.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

Defendant, Daniel Patterson, was charged by bill of information with the July 7, 1983 simple burglary of an inhabited dwelling, a violation of La.R.S. 14-.62.2. On July 25, 1983, defendant was arraigned and pled not guilty. Trial was held on January 19, 1984 and defendant was found guilty of attempted simple burglary by a six person jury. On February 9, 1984, defendant filed a motion for a new trial which was denied. On that same day, he was sentenced to serve six (6) years at hard labor with credit for time served. Subsequently on May 14, 1984 the State filed a multiple bill of information alleging defendant to be a Habitual Offender under La. R.S. 15:529.1. A hearing was held on June 5, 1984 and the court, after overruling defendant’s Motion to Quash Multiple Bill, sentenced defendant to serve twenty (20) years in the custody of the Department of Corrections as a multiple offender.

FACTS:

On July 7, 1983, at approximately 7:25 p.m., Gladys Toussaint, while watering her garden, saw a man exit a brown Ford Tori-no automobile parked in front of a vacant house next door to her at 1716 Alvar Street. She watched the man walk up the driveway of the house. The house had been vacant for two years.

Shortly thereafter, at approximately 7:45 p.m., Sarah Sturgis, who resided on the other side of the unoccupied house, looked across the driveway and noticed that the window directly across from hers was open. She then went to the front of the house, saw the strange car and called police. Within several minutes, she heard a horn blow and saw the police approach from both corners. She went back to her den window and saw a man exit the vacant house from the open window. He was wearing white sneakers, a white shirt, blue jeans and a cap. In his hand he held a screwdriver. It was still daylight. She watched the man jump down from the window and run down the driveway. The car then pulled away.

When the police arrived at the scene, Ms. Sturgis gave them a description of the car and the license number. Using this information, they apprehended the defendant seven to ten blocks away. In the car were three other people. The police transported all four persons back to the scene of the crime where Ms. Sturgis singled out the defendant as the man she saw exiting the window. He was arrested and transported to central lockup.

Crime lab personnel examined the crime scene. The window from which defendant exited had been forced open. Beneath it, on the grass, lay a pair of pliers. There were grass stains below the point of entry and grass stains on defendant’s shoes. Inside the house was evidence that a window air conditioning unit had been removed and dragged from another room.

The vacant house is part of an estate represented by attorney, Kenneth Ward. Ward testified that, as attorney for the estate, he had exclusive control and authority over the property. He stated that he had never seen the defendant before the day of trial and had not given Patterson permission to enter the house. He further testified that he had been on the premises in May or June and all of the air conditioning units were in their respective windows at the time of his visit.

At trial, defendant denied ever being on the premises. He testified he had been walking in his mother’s neighborhood that evening when a friend asked if he wanted a ride. He got into the car with his friend and two other people. Shortly thereafter, the car was stopped by police.

On cross examination, defendant admitted to four prior convictions, three for receiving stolen property and one drug conviction. No other witnesses testified for the defense.

Defendant appeals his conviction and sentence asserting the following assignments of error:

1) The court erred by refusing to declare a mistrial during the testimony of a state witness who made prejudicial and unsolicited remarks about other crimes not related to the evidence in this case.
2) The court erred by not granting defendant a new trial based on sufficient evidence to sustain a conviction for attempted simple burglary.
3) The trial court erred when it denied defendant’s Motion to Quash the Multiple Bill as untimely filed.

ASSIGNMENT OF ERROR 1:

Defendant contends the trial court erred in denying his motion for mistrial based on unsolicited, non-responsive remarks made by a prosecution witness on cross-examination.

Mistrial is a drastic remedy warranted only when an error at trial results in substantial prejudice to a defendant which effectively deprives him of a fair trial. State v. Edwards, 420 So.2d 663 (La.1982). An admonition to the jury to cure possible prejudice is sufficient when the offending remarks are made by a State’s witness.' C.Cr.P. Art. 771. When no request for mistrial or admonition to disregard is made at trial, and an objection is sustained, the defendant cannot complain of the alleged error on appeal. State v. Michel, 422 So.2d 1115 (La.1982). Moreover, unsolicited and non-responsive remarks made by a witness cannot be charged against the State to require reversal of a conviction. State v. Perry, 420 So.2d 139 (La.1982).

In the instant ease, both remarks were unsolicited, nonresponsive and made on cross-examination. The trial judge sustained defense counsel’s objection to the witness’s remark about defendant’s drugged appearance. No request for a mistrial or admonition to the jury was made. Defense counsel merely requested the court to admonish the witness to limit her answers to the questions, which the court promptly did.

While the witness did allude to other burglaries in the neighborhood, she did not tie the defendant to those crimes. In compliance with C.Cr.P. Art. 771, the court admonished the jury to disregard her remarks. This assignment of error is without merit.

ASSIGNMENT OF ERROR 2:

Defendant contends the trial court’s denial of his motion for a new trial was error, as there was insufficient evidence of defendant’s intent to commit theft or other felony while on the premises.

Simple burglary is the unauthorized entry of any dwelling, vehicle, watercraft, or other structure, movable or immovable with the intent to commit theft or other felony. LSA R.S. 14:62.

Specific intent to commit theft or other felony is required for attempted simple burglary, State v. Jones, 426 So.2d 1323, (La.1983); State v. Marcello, 385 So.2d 244 (La.1980), and may be inferred from the circumstances. LSA R.S. 14:10

A defendant’s flight from the scene of a crime indicates consciousness of guilt, and as such, is one of the circumstances from which guilt may be inferred. State v. Fuller, 418 So.2d 591 (La.1982).

With respect to the question of sufficiency of evidence, our Supreme Court in State v. Camp, 446 So.2d 1207 (La.1984), stated:

“... the standard of appellate review of a conviction is the same in all cases, whether or not circumstantial evidence is involved. The evidence, viewed in the light most favorable to the prosecution, must be sufficient for a rational juror to conclude beyond a reasonable doubt that defendant is guilty of the crime. Nevertheless the rule stated in Section 438 [La.R.S. 15:438] is useful in determining the existence of a reasonable doubt, because when the overall evidence, direct and circumstantial, does not exclude a reasonable hypothesis of innocence, there exists a reasonable doubt as to guilt.” Id. at 1209.

Defendant does not deny his presence in the house, but rather, likens it to that in State v. Ricks, 428 So.2d 794 (La.1983). In Ricks, the defendant claimed a long association with the victim, stated he had painted her apartment and that he had gone to her apartment for a visit, unaware that a male friend was staying there. No burglary tools were found on his person nor was there any other evidence of criminal intent.

In the instant case, Ms. Sturgis testified she observed the defendant climbing out of the window of the house with a screwdriver in his hand. A pair of pliers was found on the grass. An air conditioner had been removed from a window in the adjoining room and dragged to a spot under the exiting window. When the police were approaching the scene, the driver of the car honked the horn and defendant made a hurried exit.

Given the foregoing facts, there was sufficient evidence for the jury to have concluded that defendant broke into the vacant house with the requisite intent to commit theft, to the exclusion of every reasonable hypothesis of innocence, assignment of error is without merit. This

ASSIGNMENT OF ERROR 3:

Defendant contends the trial court erred in denying the motion to quash the State’s multiple bill as untimely filed.

La.R.S. 15:529.1 (The Habitual Offender Law) does not prescribe a specific period in which the district attorney must file a multiple bill. The courts, however, have held it must be filed within a reasonable time after the prosecution becomes aware a defendant has a prior felony record. State v. Broussard, 416 So.2d 109 (La.1982). Our Supreme Court has held that filing a multiple bill weeks after sentencing is timely but filing a bill thirteen months after sentencing and three months prior to the date that defendant becomes eligible for parole was untimely. State v. Broussard, supra; State v. Wilson, 360 So.2d 166 (La.1978); State v. Bell, 324 So.2d 451 (La.1975).

In the instant case, the multiple bill was filed on May 7, 1984, three months from the original sentencing of February 9, 1984. After a careful reading of the record, we find no manifest error in the trial judge’s finding that the delay in filing was reasonable and with good reason. The trial judge correctly explained to defendant that the State had no control over the preparation of the guilty plea transcript in a previous state conviction, of the receipt of the documents from federal authorities on a prior federal conviction, and that the filing of the bill without those requisite documents to prove the bill would have been meaningless. This assignment of error is without merit.

ERRORS PATENT:

A review of the record indicates that defendant was originally sentenced on February 9, 1984 immediately after his motion for a new trial was denied. There is nothing in the minutes to reflect that the defendant waived further delays. Code of Criminal Procedure Article 873 mandates a twenty four hour delay before sentencing after the denial of a motion for new trial or in arrest of judgment unless defendant has waived further delays. Thus, the trial court’s failure to comply with the provisions of Article 873 at the original sentencing is an error patent. Whether this error merits remand for resentencing depends on whether this court finds that the rights of the accused were substantially affected. The error must be evaluated in the light of its potential impact on the fairness of the lower court proceedings. State v. White, 404 So.2d 1202 (La.1981); C.Cr.P. Art. 921.

No objection was made to the sentencing or to the sentence, nor was there a showing ’that the defendant had been prejudiced. Further, defendant’s original sentence was later vacated and defendant was re-sen-teneed as a multiple offender.

For the reasons assigned above, defendant’s conviction and sentence are affirmed.

AFFIRMED.

      . La.R.S. 14:62.2 provides:
      "Simple burglary of an inhabited home is the unauthorized entry of any inhabited dwelling house, .apartment or other structure used in whole or in part as a home or place of abode by a person or persons with the intent to commit a felony or any theft therein, other than as set forth in Article 60.”

      . La.R.S. 15:529.1 provides:
      “A. Any person who, after having been convicted within this state of a felony, or who, after having been convicted under the laws of any other state or of the United States, or any foreign government or country of a crime which, if committed in this state would be a felony, thereafter commits any subsequent felony within this state, upon conviction of said felony, shall be punished as follows:
      (1) If the second felony is such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then the sentence to imprisonment shall be for a determinate term not less than one-third the longest term and not more than twice the longest term prescribed for a first conviction;
      (2) If the third felony is such that upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life then,
      (a) The person shall be sentenced to imprisonment for any term not less than one-half the longest possible sentence for the conviction and not more than twice the longest possible sentence prescribed for a first conviction; or ...
      (D) If, at any time, either after conviction or sentence, it shall appear that a person convicted of a felony has previously been convicted of a felony under the laws of this state, or has been convicted under the laws of any other state or of the United States; of any foreign government or country of a crime, which, if committed in this state would be a felony, the district attorney of the parish in which subsequent conviction was had may file an information accusing the person of a previous conviction ..."

      . Because defendant’s appeal had already been filed and lodged with this court, defendant applied for writs of certiorari, prohibition and mandamus to review the trial courts denial of the Motion to Quash Multiple Bill (K-2756). The writ application was granted and consolidated in this appeal.

      . The remarks were made by Ms. Sturgis who commented upon the defendant’s drugged appearance and the rash of burglaries in the neighborhood.

      . La.R.S. 14:10 provides:
      "Criminal intent may be specific or general: (1) Specific criminal intent is that state of mind which exists when the circumstances indicate that the offender actively desired the prescribed criminal consequences to follow his act or failure to act.
      (2) General criminal intent is present whenever there is specific intent, and also when the circumstances indicate that the offender, in the ordinary course of human experience, must have adverted to the prescribed criminal consequences as reasonably certain to result from his act or failure to act.”

      . This court is well aware of the unpublished opinion in the matter of State v. McCoy, No. K-1794 handed down March 12, 1984, but find it inapplicable in the instant case.


text:
    Albert V. COLLIER v. WILLIAMS-McWILLIAMS COMPANY, INC., et al.
    No. CA-1855.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Denied Jan. 25, 1985.

      Joseph M. Bruno, Bruno & Bruno, New Orleans, for plaintiff/appellant.
    Bertrand M. Cass, Jr. and A. Wendel Stout, III., Deutsch, Kerrigan & Stiles, New Orleans, for defendants (Williams-McWilliams).
    Lawrence J. Ernst, Christovich & Kear-ney, New Orleans, for defendants (Commercial Insurance Co. of Newark, New Jersey Fidelity & Casualty Co. of New York).
    Thomas E. Loehn, Boggs, Loehn & Ro-drigue, New Orleans, for defendants (Employers Liability Assurance Corp., Ltd.).
    Before CIACCIO, LOBRANO and ARMSTRONG,. JJ.
   LOBRANO, Judge.

The two issues presented in this appeal are first, did the lower court err in failing to grant appellant Collier a continuance of his September 16th trial date, and second, does appellant Employers Liability Assurance Corporation, LTD. (Employers) owe a duty to defend its assured?

On December 23, 1976 Albert Collier (Collier) filed suit against William McWil-liams, Inc. (McWilliams), its executive officers, and numerous other parties seeking relief in the form of damages allegedly sustained as a result of the occupational lung disease, silicosis. On June 3, 1977 Collier amended his petition to include a claim for workman’s compensation against the various defendants, and specifically alleged that he worked for McWilliams from 1962 thru 1967. On December 27, 1978, the McWilliams’ executive officers third partied Employers, as well as other insurers, alleging that they were insured under policies of insurance issued during the material times alleged in the petition, and consequently were obligated to defend, and indemnify against any losses sustained. Employers denied coverage and refused to provide a defense.

A trial was originally scheduled for May 6, 1982 on motion of one of the defendants, however it was presumably continued as the record is void of any reason why the trial was not had that date. On May 4, 1982, the trial court issued an order which transferred this matter to a commissioner for the purpose of intensifying discovery efforts, narrowing the issues and possibly reducing the length of trial. In addition, the order also provided in pertinent part:

“IT IS FURTHER ORDERED that all pleadings, motions and orders must be presented to the Commissioner to which this case is assigned; Upon appropriate Motion and/or Request by the Commissioner to whom this case is assigned, the case may be re-assigned for trial proceedings.”

On May 12th the Commissioner issued an order for a pre-trial on May 21st. Collier’s counsel at that time moved for a continuance for the reason that he had a conflict with another matter previously scheduled. For unknown reasons that motion was denied. There is no record of what took place at the May 21st pre-trial, however, another order was issued by the Commissioner on June 17th calling for another pre-trial on June 29th, with discovery to be completed by August 16, 1982. On the same date, June 17th, the Commissioner also set the trial for September 16, 1982. On September 10th, Collier’s new attorney (who is also his. present attorney) requested a continuance of the September 16th trial date setting forth two reasons. First he alleges that during the previous month (presumably August, 1982) Collier’s condition had worsened rendering him permanently disabled, and therefore additional time would be required to amend the pleadings to seek additional sums and to obtain medical reports to substantiate the claim. Second, he alleges that a trial by the Commissioner would be contrary to the orders of the trial judge who had reserved the right to try the matter himself. That motion was denied by the Commissioner on September 14th, and Collier took writs to this Court on September 16th. This Court denied the writs, and the Commissioner called the matter for trial on September 16th. At that time Collier’s attorney offered no evidence, and chose to stand on his motion for continuance. The Commissioner then proceeded to hear evidence on the third party demands.

On March 9, 1983 the Commissioner filed his report with the trial court, and on March 22, 1983 judgment was rendered dismissing Collier’s claims at his cost. There was also judgment against Employers in the amount of $4,500.00, plus interest and costs, said amount being the costs of defending the suit by McWilliams and its executive officers. This appeal followed after the denial of motions for a new trial.

THE CONTINUANCE ISSUE

The pertinent Articles of the Louisiana Code of Civil Procedure are 1601 and 1602. They provide:

Article 1601
“A continuance may be granted in any case if there is good ground therefore.”
Article 1602
“A continuance shall be granted if at the time a case is to be tried, the party applying for a continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.”

Under Article 1601 a continuance rests within the sound discretion of the trial court, and appellate courts are reluctant to interfere. Armstrong v. State Farm Fire & Casualty Co., 423 So.2d 79 (La.App. 1st Cir.1982). Under Article 1602, a party moving for a continuance has the burden of proving that his motion falls within these peremptory grounds. Armstrong, supra. Furthermore, the requesting party must have exercised due diligence, yet been unsuccessful in obtaining the material evidence. Estopinal v. Thomas, 273 So.2d 54 (La.App. 4th Cir.1973). The materiality of the missing evidence must be demonstrated. Gallin v. Travelers Insurance Co., 323 So.2d 908 (La.App. 4th Cir.1975), writ denied 329 So.2d 452 (La.1976).

Although Collier could make serious arguments under Article 1602 based on his allegation that his physical condition seriously deteriorated the month before trial and therefore additional medical evidence was needed, we find no proof whatsoever to substantiate this allegation. We are convinced, however, that Collier was not ready for trial on September 16, 1982, whether due to his medical condition or due to his attorney’s lack of preparation. Since this matter has been pending since December of 1976 we tend to believe that Collier’s attorney was lacking in diligence in preparing the matter for trial. We also believe that the lack of preparation is in no way attributed to the plaintiff himself. Hence this court is faced with the problem of weighing the harsh remedy of depriving plaintiff his day in court, with the strict adherence to the rules of procedure allowing continuances.

In considering the question of whether or not the trial court erred in refusing to grant a new trial where a default judgment was rendered, our brethren of the Second Circuit in Terra Builders v. International Paper Company, 445 So.2d 79 (La.App. 2nd Cir.1984), writs denied 446 So.2d 1226, stated:

“It does not appear that the defendant had notice that an answer had not been filed or that plaintiff intended to take a default. The defendant did not realize until after confirmation of the default that its attorney had failed to file an answer.
The failure of the defendant to file an answer is in no way attributable to its own neglect, as defendant relied on its retained counsel to represent it in this matter ...
* * * * * *
In light of the circumstances of this case, we conclude the trial court abused its discretion in denying the defendant’s new trial application. A miscarriage of justice will result if the defendant is not afforded the opportunity to defend this substantial and complex action on its merits.” Id. at 81, 82.

Our courts have not been hesitant to reverse the trial court’s rulings where a miscarriage of justice will result, especially where the cause is not attributable to the client, but to his attorney’s neglect. We feel such is the situation in the instant case. Collier has been deprived of his day in court through no fault of his own. Fairness, equity and justice require us to see that he gets the opportunity to be heard. Therefore we reverse the judgment dismissing his claim and remand for trial on the merits. We do not intend by this opinion to condone an attorney’s neglect in fulfilling his professional responsibilities. There may be circumstances in other cases where the opposite result may be appropriate. However, under the facts of the instant case we are of the opinion that justice requires we give Collier his day in court.

EMPLOYERS’ DUTY TO DEFEND

The judgment below awarded McWil-liams $4,500.00 against Employers as the costs of defending the suit.

The jurisprudence relating to an insurer’s duty to defend is well settled and has remained unchanged since the Supreme Court’s ruling in American Home Insurance Co. v. Czarniecki, 230 So.2d 253 (La.1969) wherein the Court stated:

“Generally the insurer’s obligation to defend suits against its insured is broader than its liability for damage claims. And the insurer’s duty to defend suits brought against its insured is determined by the allegations of the injured plaintiff’s petition, with the insurer being obligated to furnish a defense unless the petition unambiguously excludes coverage. (Citations omitted).
Thus, if assuming all the allegations of the petition to be true, there would be both (1) coverage under the policy and (2) liability to the plaintiff, the insurer must defend the insured regardless of the outcome of the suit. Additionally, the allegations of the petition are liberally interpreted in determining whether they set forth grounds which bring the claims within the scope of the insurer’s duty to defend the suit brought against its insured.” (Citations omitted). Id. at 259.

Collier’s original petition alleges in pertinent part:

“Petitioner sandblasted for the various defendants for approximately the last 18 years on various occasions.”
“As a direct and proximate result of the negligence of the aforesaid defendants, petitioner contracted advanced silicosis with massive fibrosis.”

The supplemental petition filed in June of 1977 further alleged that Collier worked for William McWilliams during the year 1962 through 1967. Employers’ policy was in existence from April, 1964 thru July 1, 1970, and contained the following provisions.

“COVERAGE A — BODILY INJURY LIABILITY
COVERAGE B — PROPERTY DAMAGE LIABILITY
The company will pay ... because of
Coverage A. bodily injury or
Coverage B. property .damage
to which this insurance applies, caused by an occurrence, and the company shall have the right and duty to defend any suit ... even if any of the allegations ... are groundless, false or fraudulent ...”
# ⅜ ⅜ ⅜ ⅜ 5fe
“DEFINITIONS
⅜ ⅝ ⅜ ⅜ ⅝ ⅜
“ ‘occurrence’ means an accident, including injurious exposure to conditions which results, during the policy period, in bodily injury ...”

Employer argues that the application of the manifestation theory whereby no bodily injury takes place until the disease becomes apparent would relieve them of a duty to defend in the instant case. They urge a simple reading of the definition of “occurrence”, along with the principles set out in Carter v. Avondale Shipyards, Inc., 415 So.2d 174 (1982) should substantiate their position. We disagree. First, Carter, supra, is distinguisable from the instant case in that it dealt with a workman’s compensation claim against two of claimant’s former employers. The ultimate determination made in that case was which employer was to be liable for the compensation benefits. Our Supreme Court directed its attention to the specific provisions of the Workman’s Compensation statute in determining that Avondale as the employer wherein the disease manifested itself, should bear the burden of compensation payments. The Court did not rule out the possibility of other employers sharing in the burden, but decided that such an issue would be a policy decision best left to the legislature.

In the instant case we are not dealing with ultimate liability on the merits, but a “duty to defend” under a general liability policy. Employers’ lengthy arguments concerning the evidence presented at trial is irrelevant. The only consideration is whether the allegations of plaintiff’s petition, if assumed to be true, would mandate coverage and thus the duty to defend. Collier alleged he worked for McWilliams during the period Employers had its policy in effect. As a result of that work he alleges he contracted' silicosis which did not manifest itself until 1976. In Quick v. Murphy Oil Co., 446 So.2d 775 (La.App. 4th Cir.1982), writ denied 447 So.2d 1074 (La.1984), this Court, in deciding when a cause of action for silicosis arises, stated:

“We have concluded that in the unique circumstances presented by cases of cumulative diseases such as silicosis, it is the contraction of the disease which creates a cause of action and not the later manifestation of the consequences of that disease. To hold otherwise would be to ignore the facts. While the ultimate manifestation of the disease by physical disability may be convenient, easily fixed point at which to find a cause of action accrues we cannot disregard the fact that, but for the earlier contraction of the disease, there would be no symptoms to manifest themselves.
The problem with this approach is that it is extremely difficult to accurately fix the point in time at which the disease is contracted. This difficulty does not change the unavoidable reality that the disease existed in the sense that irreversible biological changes which inevitably result in disease and disability take place before manifestation of the condition by way of disability symptondis. There is universal medical opinion that the date of detection is not the date at which the disease is contracted.” at p. 779.

The Court went on to find that for purposes of deciding an exception of no cause of action the only consideration is whether the allegations of the petitioner state that plaintiff contracted silicosis prior to the effective date of statute at issue.

Given this Court’s approval of the exposure theory in the Quick case, supra, the allegations of Collier’s petition clearly allege a cause of action during the policy period. That factor, coupled with the general policy enunciated in American Home Insurance Co., supra that the obligations to defend is much broader than an insurer’s ultimate liability, we conclude the trial court was correct in holding that Employers, was obligated to defend the instant suit. This portion of the judgment is therefore affirmed. Accordingly, this matter is remanded to the trial court for further proceedings consistent with this opinion.

REVERSED IN PART, AFFIRMED IN PART AND REMANDED.

      . See Halley v. Halley, 457 So.2d 108 (La.App. 2nd Cir.1984).

      . Commercial Union Insurance Company is designated in the judgment as the party cast in judgment since Employers either changed their name, or was taken over by Commercial Union. We have referred to this party as Employers so as to avoid confusion since there is another party in the suit named Commercial Insurance Company.


text:
    SUCCESSION OF Emi Lou Stuart DANESE.
    No. CA-1898.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Regel L. Bisso, Hulse, Nelson & Wanek, New Orleans, for defendant/appellee.
    R. Travis Douglas, Douglas & Douglas, Kenner, for plaintiff/appellant.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   LOBRANO, Judge.

This appeal arises out of a judgment removing appellant, Samual Stuart Danese, as Testamentary Executor for the Succession of his adoptive mother, Emi Lou Stuart Danese and appointing appellee, Dixie Danese Irick, daughter of the decedent, as Executrix for the Succession.

Decedent, Emi Lou Stuart Danese, died in Orleans Parish on November 1, 1980. In her statutory will she named her adopted son, Samual Stuart Danese, as Testamentary Executor. A petition to probate the will was filed in the Civil District Court for the Parish of Orleans on January 16, 1981.

On November 25, 1981, appellee filed a Petition for Possession of certain legacies bequeathed to her. The Petition for Possession was opposed by appellant who claimed the succession did not have sufficient liquid assets with which to pay its debts. Appellant alleged that in order to raise sufficient funds with which to pay succession debts, it would be necessary to sell succession assets.

On February 24, 1983, appellee filed a Rule to Remove appellant as executor and appoint her as executrix. Appellee alleged a number of breaches of fiduciary duty owed by appellant to the succession.

A hearing on the rule was held April 25, 1983. On May 23, 1983, judgment was rendered removing appellant as executor and appointing appellee executrix. From this judgment appellant appeals asserting that the trial court erred in finding that appellant failed in his duties as executor. The trial court’s extensive reasons for judgment found appellant derelict in:

1) Failing to file either an inventory of succession assests or a sworn detailed descriptive list of said assets in lieu of inventory;
2) Failing to file an annual account;
3) Failing to file a tableau of distribution when debts of the succession were paid;
4) Failing to close the succession as soon as advisable;
5) Failing to properly manage, maintain and preserve the real estate of the succession;
6) Failing to protect and preserve the special legacies bequeathed to appel-lee;
7) Failing to include as assets certain funds represented by certificates of deposit held jointly in the names of decedent and appellant;
8) Failing to appoint an agent for service of process as required by La.C.C.P. Art. 3097(4), for non-resident executor.

Absent a clear finding of manifest error, a trial court’s judgment will not be overturned. Canter v. Koehring, 283 So.2d 716 (La.1973). A review of the record discloses ample evidence in support of the trial court’s judgment.

The duties and responsibilities of a succession representative in Louisiana are clearly mandated by the Code of Civil Procedure which states unequivocally:

“A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator. ..” La.C.C.P. Art. 3191.
“Whenever an inventory of succession property otherwise would be required by law, the person at whose instance the inventory would be taken may file with the Department of Revenue and in the Succession proceeding, in lieu of an inventory ... a detailed descriptive list of all succession property...” La.C.C.P. Art. 3136.
“It shall be the duty of a succession representative to close the succession as soon as advisable.” La. C. CP- Art. 3197.
“A succession representative may sell succession property in order to pay debts and legacies or for any other purpose, when authorized by the Court ...” La. C. C.P. Art. 3261 ... either by listing the property, La.C.C.P. Art. 3286, or thru a private sale, La.C.C.P. Art. 3281.
“When a succession representative desires to pay charges or debts of the succession, he shall file a petition for authority and shall include in or annex to the petition a tableau of distribution listing those charges and debts to be paid ...” La. C. C.P. Art. 3303.-
“A succession representative shall file an account annually and at any other time when ordered by the Court on its own motion or on the application of any interested person.” La.C.C.P. Art. 3331.

At the April 25, 1983 hearing appellant admitted that no inventory or detailed descriptive list, annual report or tableau of distribution had been filed even though debts of the succession had been paid.

He failed to offer any explanation why it took two and one-half months to file the petition to probate and nearly fourteen months from the date of death to determine the succession did not have sufficient assets with which to pay the debts and distribute the legacies. His reason for failing to either rent or list the succession property at 1130 Octavia Street was that the property was in a state of disrepair. Yet, he readily admitted that he stayed there over night at various times and that a caretaker lived there rent free for two and one-half years. We recognize that it was difficult for the trial court to determine the status of the property upon decedent’s death, however, it is generally true that property which is not maintained will deteriorate especially if it is already in a state of disrepair. Accordingly, we hold that the trial court was correct in finding that appellant should have made reasonable attempts to either lease and/or sell the property shortly after decedent’s death when it was apparent there was no need for an administration and funds were needed to pay succession debts. La.C.C.P. Arts. 3191, 3261, 3286 and 3281, supra.

Appellee alleged that appellant failed in his duty to list the particular legacies of furniture, furnishings, jewelry and various personal effects bequeathed to her. In defense of this assertion, appellant testified that he had no knowledge as to the whereabouts of some of the items bequeathed while others were given by the decedent to members of his family or other relatives shortly before her death. He further testified that he and his attorney verbally informed appellee, at the time of her mother’s death, that she was free to take her mother’s personal possessions as they were of no monetary value and that appellee failed to take possession, Appellee vehemently denied this assertion and testified that all of the items bequeathed to her were present in her mother’s home and were in good condition prior to her mother’s death. Appellant admitted that all of the “donated” items were removed after his mother’s death with his permission and supervision.

As executor, it was appellant’s duty and responsibility with the assistance of his attorney, if necessary, to file a detailed descriptive list of all the property in decedent’s house at the time of death, regardless of monetary value so as to provide a complete and concise evaluation of the property thus enabling the succession representative to properly administer the succession and inform heirs, creditors, and other interested parties of the nature and value of the succession property. Succession of Willis v. Martin, 228 So.2d 732 (La.App. 3rd Cir.1969), writ refused 255 La. 244, 230 So.2d 93 (1970). Included in that list should have been those objects allegedly given by decedent to various persons immediately before her death, which, but for those donations, would have gone to appel-lee especially in light of the fact that these movables were not delivered prior to the date of death. If there is any question at all that property donated might be claimed by the succession, the executor must include the subject property among the assets of the succession. Succession of Amos, 422 So.2d 605 (La.App. 3rd Cir. 1982).

Appellant also failed to include as succession assets certain funds held in certificates of deposit in the names of decedent and appellant. Appellant produced a document, allegedly in the handwriting of the decedent, stating these funds were, in truth and in fact, his from his natural mother who died in 1947. The trial judge concluded that the alleged document which was executed in January, 1980, shortly before decedent wrote her will, was, at best, “a simulated counterletter” and gave it no weight. The parol testimony by the witnesses attesting to the fact that it was decedent’s handwriting was disregarded on credibility grounds.

Because decedent was listed on the face of the certificate as co-owner, appellant should have listed these funds in a descriptive list or inventory of the succession even if he had absolute proof that the funds, in actual fact, belonged to him. Succession of Amos, supra.

Finally, appellant asserts the trial court erred in finding appellant to be domiciled in the State of Mississippi, and as such, required by law to appoint an agent for service of process. La.C.C.P. Art. 3097(4). Failure to appoint an agent for service of process is grounds for removal of the succession representative. La.C. C.P. Art. 3182.

Appellant testified he was a resident of both Louisiana and Pearlington, Mississippi. He claimed decedent’s house at 1130 Octavia Street was his Louisiana domicile. He. testified he often slept at the Octavia Street residence but admitted that over the last twelve months he spent, at the most, thirty nights there at various times. He further admitted that his family resides at his home in Pearlington, Mississippi on a daily basis and that his children commute from there to school in Covington, Louisiana.

Steve Cambus, who lived in the Octavia Street property as caretaker, testified that since decedent’s death, appellant stayed at the house with his family for Mardi Gras and an occasional weekend when visiting relatives.

Residence and domicile are not synonymous terms. Under Louisiana law a person may have several residences but only one domicile. La.C.C. Art. 38; Messer v. London, 438 So.2d 546 (La.1983); Taylor v. State Farm, 248 La. 246, 178 So.2d 238 (1965); Turner v. Alexis, 436 So.2d 1346 (La.App. 4th Cir.1983). The evidence clearly indicates that appellant is, in fact, domiciled in Mississippi and, as such, should have appointed an agent for service of process as required by law. La.C.C.P. Art. 3097(4).

As a whole, the evidence shows that appellant failed to act diligently, conscientiously and promptly in the discharge of his duties as succession representative. We find no manifest error in the judgment of the trial court.

For the foregoing reasons, the judgment of the trial court is affirmed.

AFFIRMED.


author: WARD, Judge.

text:
    Louis L. DELISE, et al. v. METROPOLITAN PROPERTY AND LIABILITY INSURANCE CO., et al. Maria DELISE v. ST. BERNARD PARISH POLICE JURY.
    Nos. CA-1979, CA-1993.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Frederick A. Miller, New Orleans, for defendant-appellant, St. Bernard Parish Police Jury.
    Keith S. Giardina, Chalmette, for plaintiffs-appellees Louis L. Delise, et al.
    Jeff Perigoni, Chalmette.
    Before GULOTTA, SCHOTT and WARD, JJ.
   WARD, Judge.

These consolidated cases present claims for damages by Maria Delise, the driver of an automobile hit by a St. Bernard Parish Police Jury ambulance and by Louis L. Delise, Sr., individually and on behalf of his two minor children, Amy and Louis, Jr., who were passengers in the Delise car. Maria Delise filed suit solely against the St. Bernard Parish Police Jury seeking $38,062.36 in damages. Louis L. Delise, Sr., filed suit against his liability insurer, Metropolitan Property and Liability Insurance Company, as well as the St. Bernard Parish Police Jury, for $7,199.65 in medical expenses and $30,000.00 in damages for Amy and $5,000.00 in damages for Louis, Jr. Metropolitan filed a Petition of Intervention to recover medical payments it made for the Delise children.

The Trial Court found that Maria Delise was fifty percent liable for the negligence proximately causing the intersectional collision and that the ambulance driver, Donna Morales, was liable for the other half. The Trial Court found the total amount of damages, including medical expenses, was: $6,000 for Amy Delise; $1,000 for Louis-Delise, Jr.; and $1,000 for Maria Delise. Judgment was rendered against Metropolitan and the St. Bernard Parish Police Jury and in favor of Louis Delise, Sr. and his children accordingly, with each defendant to pay one-half the judgment. Additionally, the judgment decreed that the St. Bernard Parish Police Jury pay $500 to Maria Delise for her damages and $1,605.02 to Metropolitan for medical payments made for the Delise children.

On appeal, the St. Bernard Parish Police Jury complains the Trial Judge erred in finding the driver of its ambulance, Donna Morales, negligent and in not finding that Maria Delise’s negligence was the sole cause of the accident. The Delises argue Morales’ negligence was the sole cause of the accident and, therefore, the Trial Judge failed to award Mrs. Delise adequate damages.

The facts are largely undisputed. The accident occurred at approximately 7:30 p.m. on a rainy September 3rd of 1981, when Donna Morales and her partner were responding to an emergency call in an ambulance owned by the St. Bernard Parish Police Jury. Driving west on West Judge Perez Drive at approximately 35 m.p.h. and operating the ambulance’s emergency lights and siren, Morales came to a red light at the intersection of Center Street. She testified that she slowed down, entered the intersection, and collided with the Delise vehicle as it was going through the intersection on a green light. Before the collision, Maria Delise had been driving east on Center Street, had stopped for a red light at West Judge Perez Drive for at least one minute, and had continued driving when the light changed. Each driver failed to see the other until immediately before impact. Under these circumstances, we believe the Trial Court was correct in finding Morales and Maria Delise equally negligent.

La.R.S. 32:24 prescribes the privileges and duties of the driver of an emergency vehicle as follows:

* * * * * *
B. The driver of an authorized emergency vehicle may:
(1) Park or stand, irrespective of the provisions of this Chapter;
(2) Proceed past a red or stop signal or stop sign, but only after slowing down or stopping as may be necessary for safe operation;
(3) Exceed the maximum speed limits so long as he does not endanger life or property;
(4) Disregard regulations governing the direction of movement or turning in specified directions.
C. The exceptions herein granted to an authorized emergency vehicle shall apply only when such vehicle is making use of audible or visual signals sufficient to warn motorists of their approach, except that a police [vehicle] need not be equipped with or display a red light visible from in front of the vehicle.
D. The foregoing provisions shall not relieve the driver of an authorized vehicle from the duty to drive with due regard for the safety of all persons, nor shall such provisions protect the driver from the consequences of his reckless disregard for the safety of others.

The degree of care required of the driver of other vehicles, upon the approach of an emergency vehicle, is provided by La.R.S. 32:125 which states:

A. Upon the immediate approach of an authorized emergency vehicle making use of audible or visual signals, or of a police vehicle properly and lawfully making use of an audible signal only, the driver of every other vehicle shall yield the right of way and shall immediately drive to a position parallel to, and as close as possible to, the right hand edge or curb of the highway clear of any intersection, and shall stop and remain in such position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.
B. This Section shall not operate to relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons using the highway.

Although La.R.S. 32:24 authorizes the driver of an emergency vehicle to exceed speed limits and disregard traffic signals, the statute also expressly provides that the driver is not relieved of the duty to drive with due regard for the safety of others and further states he is responsible for any injury or damage resulting from his breach of duty. Carpenter v. Hartford Accident and Indemnity Co., 333 So.2d 296, 299 (La.App. 1st Cir.1976).

The Trial Court found that Morales proceeded through the red light going at least 25 m.p.h. Visibility was poor and it had been raining all day. Additionally, Morales did not see the Delise vehicle until impact, despite the fact that it was within her range of vision. Morales’ failure to observe Mrs. Delise’s car and her proceeding through a red light at 25 m.p.h. under such poor weather and road conditions constitute negligence. Fleming v. State Department of Hospitals, 308 So.2d 366 (La.App. 1st Cir.1975).

The Trial Court also properly found that Mrs. Delise breached the duty of care required by La.R.S. 32:125. A green light does not give a motorist a carte blanche right to cross an intersection. Funderburk v. Rayfield, 274 So.2d 777, 780 (La.App. 3rd Cir.1973). The duty to yield the right of way arose when the ambulance approached the intersection using its audible and visible emergency signals. Cassity v. Williams, 373 So.2d 586 (La.App. 3rd Cir.1979). When Mrs. Delise failed to hear the ambulance’s siren, failed to see its emergency light, and failed to yield the right of way to the ambulance, she breached the statutory duty of La.R.S. 32:125.

For the foregoing reasons, we conclude the Trial Judge’s assessment of liability and damages is correct.

Affirmed.


text:
    Robert CAHN v. Dorothea Schlesinger CAHN and Marjorie Cahn Friedman.
    No. CA-2016.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Granted Feb. 4, 1985.

      Max Nathan, Jr., Isaac M. Gregorie, Jr., Sessions, Fishman, Rosenson, Boisfontaine & Nathan, New Orleans, for plaintiff-appellant Robert Cahn.
    William W. Rosen, Levy, Marx, Lucas & Rosen, New Orleans, for defendant-appel-lee, Dorothea Schlesinger Cahn.
    Before GULOTTA, SCHOTT and WARD, JJ.
   WARD, Judge.

This is an appeal from a judgment sustaining an exception of no cause of action in a suit to partition immovable property by licitation. The Trial Court held that Louisiana Civil Code Article 543, as it read in 1978, prohibited an owner of an undivided interest in full ownership from seeking partition by licitation where the property is subject to a usufruct. We reverse, because we find no statutory prohibition against the cause of action, but more importantly, because we believe that the rights of full ownership are meaningless without the remedy of partition.

Robert Cahn filed this suit to partition property consisting of a residence on two lots in the City of New Orleans. He named as defendants his sister, Marjorie Cahn Friedman, and his father’s widowed second wife, Dorothea Schlesinger Cahn, who resides in the house. All parties agree that the land and its improvements cannot be partitioned except by licitation, that is, by judicial sale.

The property was originally acquired as community property of Moise S. Cahn and his first wife, the parents of Robert and Marjorie Cahn. When the first Mrs..Cahn died, her one-half interest in the home was inherited by her children, Robert and Marjorie, subject to a usufruct in favor of Moise Cahn. Moise Cahn remarried and lived in the house for twenty years with his second wife, Dorothea. When Moise Cahn died in February of 1978, his usufruct over the property which belonged to his first wife terminated. He bequeathed all of his property, including his undivided one-half interest in the house, to his children as naked owners with a life usufruct to his widow. Hence, Robert and Marjorie each now own an undivided one-fourth in naked ownership, bequeathed by their father, as well as the undivided one-fourth in full ownership inherited from their mother. Dorothea Cahn has a usufruct for life over an undivided one-half of the property.

Robert Cahn originally filed suit in 1982 requesting only partition of the property by licitation, but later amended his petition to include alternative claims for rent or for possession of the one-fourth interest he holds in full ownership, or upon denial of all his other claims, for a declaratory judgment setting forth the rights and obligations of the parties. The Trial Judge denied these alternative claims along with the claim for partition.

Although her interests in the property are identical to those of her brother Robert, Marjorie Cahn Friedman did not join in his petition but answered the suit asking that the judgment of the Trial Court be “equally applicable” to her. Although a defendant, she did not join in Mrs. Cahn’s exception of no cause of action which was sustained by the Trial Court, and Marjorie Cahn Friedman is not a party to this appeal.

Th'e-sole issue we decide is whether one who holds an undivided fractional interest in property in full ownership has the right to seek partition by licitation even though there is a person who holds a usufruct over another undivided interest in the property.

In deciding that Robert Cahn had no cause of action for partition because of the existence of his stepmother’s usufruct, the Trial Judge relied upon Civil Code Article 543 as it was written at the time Dorothea Cahn’s usufruct was created and when Robert Cahn filed suit:

A coowner whether or not he is also a usufructuary of an undivided part of a thing may demand its partition in kind to the extent necessary to enable him to obtain the perfect ownership of a determined part. Partition by licitation is not allowed even though there is a person who is both a usufructuary and an owner.

The Trial Judge applied the interpretation of Article 543 from Pasternack v. Samuels, 415 So.2d 211 (La.1982) to preclude Robert Cahn’s action, finding that the prohibition in the second sentence of the article “protects the usufructuary in her continued and uninterrupted enjoyment of the usufruct.” Although a 1983 amendment to Article 543 expressly allows an action for partition in this case, the Trial Judge declined to apply the amended article. He found that Dorothea Cahn’s right “to reside in the [home] under her usufruct is a vested right from which she cannot be divested by the vehicle of partition by licitation.”

We believe the Trial Judge was incorrect when he characterized Dorothea Cahn’s interest in the property as a vested right to live in the house. We do not believe Dorothea Cahn has a vested right to reside in the property; she has a testamentary usufruct for life over one-half the property. ' Partitioning the property by lici-tation will not divest Dorothea Cahn’s enjoyment of her usufruct; the usufruct will attach to the proceeds of the sale. La.C.C. art. 616.

We reverse the decision of the Trial Court because we believe Article 543, as it existed before 1983, does not prohibit all claims by a full owner for partition by licitation. We distinguish Pasternack because the parties’ ownership interests in that case were different from those in the Cahn property. Joseph Pasternack, Jr.’s co-owner in indivisión, Mrs. Samuels, from whom he sought partition, owned fractional interests in the property in full ownership in addition to interests in usufruct. Pasternack, 415 So.2d at 212 n. 1 and 213. Thus, Mrs. Samuels was precisely the person described in the second sentence of Article 543, “both a usufructuary and an owner.” In the present case, Dorothea Cahn is not both a usufructuary and an owner; her only interest in the property is a usufruct. There is no one who is both a usufructuary and a perfect owner of the Cahn property. Therefore, because of this critical factual distinction, we hold the rule in Pasternack inapplicable to the issue before us.

Rather than extending the application of Pasternack beyond its factual basis, the proper civilian judicial method is to refer to the text of the Code itself. The language of Article 543 did not expressly prohibit partition by licitation where there is a person, such as Mrs. Cahn, who holds only an interest in usufruct. Paragraph (b) of the official Comments to Article 543, as enacted in 1976, explains that the second sentence of 543 restates the rule established by Smith v. Nelson, 121 La. 170, 46 So. 200 (1908), Succession of Glancey, 112 La. 430, 36 So. 483 (1904) and Fricke v. Stafford, 159 So.2d 52 (La.App. 1st Cir.1963), a line of cases in which the plaintiffs were naked owners, not holders of interests in full ownership. Therefore, the rule established by these cases and codified by Article 543 does not prohibit an action for partition by the holder of an interest in full ownership.

A further examination of the text of the Code yields no provision barring Robert Cahn’s cause of action. On the contrary, Article 1289 provides:

No one can be compelled to hold property with another, unless the contrary has been agreed upon; any one has a right to demand the division of a thing held in common, by the action of partition.

And Article 1308:

The action of partition will not only lie between co-heirs and co-legatees, but between all persons who hold property in common, from whatever cause they may hold in common.

Therefore, we hold that one who holds an interest in property in full ownership may demand partition, including partition by licitation, where necessary to allow unqualified enjoyment of the absolute rights of full ownership. Accordingly, the judgment of the Trial Court sustaining Dorothea Cahn’s exception of no cause of action is reversed, and this case is remanded to permit Robert Cahn to bring an action for partition by licitation. Costs of this appeal are to be paid by the parties jointly.

Reversed and Remanded.


author: WILLIAMS, Judge.

text:
    Merlin MARECHAL v. LOUISIANA STATE RACING COMMISSION.
    No. CA-1933.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Salvador Anzelmo, Thomas W. Milliner, New Orleans, for plaintiff-appellee.
    William J. Guste, Jr., Atty. Gen., Robert A. Barnett, Staff Atty., John E. Jackson, Jr., Asst. Atty. Gen. and Atty. for Louisiana State Racing Commission, New Orleans, for defendant-appellant.
    Before BYRNES and WILLIAMS, JJ., and L. JULIAN SAMUEL, Judge Pro Tem-pore.
   WILLIAMS, Judge.

This is an appeal from a decision by the trial court holding that plaintiff’s action against the Louisiana State Racing Commission [“Commission”] is moot.

Merlin Marechal is an owner-trainer of horses in Louisiana. On June 1, 1983, one of Marechal’s horses, “Tuff Casey,” placed first in a race at Jefferson Downs. A sample of urine taken from “Tuff Casey” after the race, as required by the Rules of the Racing Commission, was found to have contained the drug benzocaine. Marechal was suspended on July 4, 1983 and therefore unable to go to any race track. The Steward’s Ruling also disqualified the horse from the race and redistributed the purse.

Marechal was granted a suspensive appeal from the Steward’s Ruling to the Commission. After a hearing, the Commission suspended Marechal’s license for sixty (60) days beginning on August 2, 1983. On August 1, 1983, Marechal filed a petition for injunction and a temporary restraining order enjoining this decision. The- trial court granted the temporary restraining order on August 1, and the matter was set for hearing on the permanent injunction at a later date. On December 8, 1983, after several delays, the case was submitted to the district court. The district court held that the matter was moot: the temporary restraining order expired ten (10) days after it had been entered, i.e. August 10, 1983, and more than the sixty (60) days of Marechal’s suspension had elapsed. It is from this ruling that the State Racing Commission now appeals.

On appeal, the issue is whether the ruling by the State Racing Commission is moot. Marechal, the appellee, presented three other issues on answer to appeal, all dealing with constitutionality and with statutory construction. We do not reach these three other issues because we find the trial court correctly dismissed the action.

The Commission asserts that there is a non-written agreement between counsel for the Commission and counsel for appellee, who is also counsel for the Horsemen’s Benevolent Protective Association, that the Commission will not enforce a ruling if a temporary restraining order is issued as interim relief during an appeal to the district court, until that court has heard the matter. There is no evidence of this unwritten agreement in the record; it is simply asserted only in brief.

Because we are a court of record, we can only consider the information contained in the record before us. We cannot rely on assertions. We, therefore, are forced to conclude that defendant’s suspension went into effect at the expiration of the temporary restraining order and continued until sixty (60) days had elapsed. Any further action in the case after that date was moot.

For the foregoing reasons, the decision of the trial court is AFFIRMED, all costs to appellant.

AFFIRMED.


text:
    Rita Bouterie BOYLE v. William BOYLE.
    No. CA-1897.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.
    Writ Denied Jan. 14, 1985.

      Milton E. Brener, Garon, Brener & McNeely, New Orleans, for defendant-ap-pellee.
    Harry R. Cabral, Jr., H. Craig Cabral, Cabral & Cabral, Metairie, for plaintiff-appellant.
    Before BYRNES and WILLIAMS, JJ., and L. JULIAN SAMUEL, J. Pro Tem.
   WILLIAMS, Judge.

This is an appeal from a trial court’s special hearing to determine the sole issue of the status of the “Bill Boyle Agency.” The said agency was begun during the marriage of Rita and Bill Boyle and continues to date.

Rita and Bill Boyle, the plaintiff and defendant respectively, were married in Louisiana in 1966. At the time of the marriage, Bill was employed as an insurance agent by Mr. Ivy Foret, but shortly thereafter he was approached by American Income Life Insurance Company (AIL) with the opportunity of opening his own agency. In 1967, Rita and Bill moved to Memphis where they opened the “Bill Boyle Agency,” with Bill acting as agent for AIL while Rita served as secretary/office manager for the business. From 1967-1974, this arrangement continued as the couple moved from Memphis to Salt Lake City, and then to Denver. In 1974 the couple relocated in New Orleans where they operated the “Bill Boyle Agency”; however, in 1975, Rita ceased working in the office although she did fill in on occasion until the couple separated in 1978.

After viewing substantial evidence, the trial court rendered a judgment recognizing renewals on insurance policies written before the termination of the community as community property; however, the court found that those renewals attributable to the period after the separation are separate property of the agent spouse. Additionally, the court considered the assets of the business and found the sole assets of value to be furniture, fixtures, and equipment located in the agency office on the date of termination of the community. From this judgment Mrs. Boyle appeals.

Because the “Bill Boyle Agency” was begun during the Boyle’s marriage it was part of the community of acquets and gains as described in former article 2402 of the Louisiana Civil Code (West 1971) which stated in part:

This partnership or community consists of the profits of all the effect ... of the produce of the reciprocal industry and labor of both husband and wife, and of the estate which they may acquire during the marriage [emphasis added].

The trial court awarded Rita one-half of the renewal on policies written as of November 13, 1978, although the funds would not be collected until a future time. Due v. Due, 342 So.2d 161 (La.1977). In her specification of error, however, plaintiff argues that the trial court undervalued her interest when awarding her one-half of the agency business as it stood at termination of the community because she was an integral part of the development of the business and, by agreement with her husband, a partner in a “joint venture.” In effect she is asking the court to hold that the “Bill Boyle Agency” was established as a partnership or joint venture rather than a community enterprise and she asks for a continuing partnership interest in the agency-

There is -no evidence in the record that Rita and Bill contemplated a “partnership” in the business sense of the word. There was no written partnership agreement, and there is no persuasive testimony to establish the evidence of an oral agreement. To the contrary, the evidence indicated that during the marriage Bill did establish several formal agency partnerships, but never one including Rita.

Plaintiff argues that it is the “consensual element underlying the relationship” which created the partnership. It is true that Rita and Bill consented to work together for the benefit of the marriage; however, this relationship ended upon separation as did the community, and Rita was properly recompensed for her interest at that time.

Rita testified that she has no interest in working in the business, her only interest is in receiving profits earned by Bill from the agency since the separation. To hold that one spouse should be allowed to continue to reap the benefits of the other spouse’s labor after the termination of the community is without basis, in this instance.

Besides awarding Rita one-half of the renewal premiums on policies written as of November 13, 1978, Rita received one-half of the assets of the business on said date. In her specifications of error, plaintiff set forth an alternative plea, claiming that the trial court undervalued her community interest when the judge failed to include the value of the “good name” of the “Bill Boyle Agency” as an asset of the agency. This argument is without merit. The record abounds with testimony to the effect that the name “Bill Boyle Agency” has no monetary value and in its judgment the court states:

[T]he court finds the sole asset of value of the said business to be the furniture, fixtures and equipment located at the office of the Bill Boyle Agency on said date.
The court further finds there to be no other items of value, tangible or intangible, forming part of the said business.

It is clear that the trial court did consider whether or not the name of the agency had a monetary value and the testimony was persuasive enough to show that it did not.

For the foregoing reasons, the decision of the trial court is AFFIRMED.

AFFIRMED.


author: ARMSTRONG, Judge.

text:
    Frank R. POIRRIER v. CAJUN INSULATION, INC. a/k/a the Cajun Company and Louisiana Power and Light Company.
    Nos. CA-1848, CA-1895.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      Raymond A. Milly, Metairie, for plaintiff-appellant.
    Monroe & Lemann, Andrew P. Carter, Eugene G. Taggart, John H. Turner, Jr., New Orleans, for defendant-appellee.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

Frank R. Poirrier, an employee of Lou-Con Inc., (“Lou-Con”) brought a tort suit for damages against Louisiana Power and Light Company (“LP&L”). LP & L contracted with Lou-Con to perform certain work on the LP & L plant at Nine Mile Point in Westwego, Louisiana. LP & L moved for summary judgment and the trial court granted that motion. Plaintiff appeals. We affirm.

In his petition plaintiff alleges that on March 23, 1983 he was working on a preheating wheel at the Nine Mile Point Plant. As plaintiff was descending from a boiler, a ladder turned, causing him to fall to the ground sustaining injuries.

Plaintiff’s first claim is that LP & L was not entitled to summary judgment, because it failed to show that there was no genuine issue as to material facts entitling it to judgment as a matter of law. LSA-C.C.P. Art. 966.

Under the Louisiana workers compensation scheme some employers of contractors are called principals. Such principals are subject to the compensation claims of their contractor’s employees. These provisions come into operation only when the work let by contract is a part of the principal’s trade, business, or occupation. LSA-R.S. 23:1032 and 1061. Principals who are covered by these provisions are known as statutory employers. See Barnes v. Sun Oil Co., 362 So.2d 761 (La.1978); W. Malone & H. Johnson, Workers Compensation at 121 (La.Civ.L. Treatise vol. 13 1980).

“[I]n order for a principal to be considered a statutory employer ... the ‘work’ must be a part of the principal’s ‘trade business or occupation.’ ” Lewis v. Exxon Corporation, 441 So.2d 192 at 197 (La.1983), on remand, 451 So.2d 24 (1984). In Lewis, at p. 198, the Court stated:

Courts must look to the facts of each individual case to determine whether a particular activity is within the scope of a principal’s trade business or occupation, it must be routine or customary, ... or some other type of activity which is necessary for the principal’s day-to-day operations. Put another way, the works contemplated by the statute are those activities which are an actual part of the nature and purpose of the principal’s enterprise ... In addition to the regularity or predictability of the activity, it is also important to determine whether the employer normally is equipped to handle such projects both as to manpower and equipment... General maintenance and repair work which by their nature allow the smooth and continued operations of the principal, are within the scope of the statute. (Emphasis supplied.)

In support of its motion for summary judgment LP & L submitted the following evidence: The affidavit of Randy Dufour, maintenance superintendent for LP & L, indicating that pursuant to a purchase order between LP & L and Lou-Con, at the time of the alleged accident plaintiff was performing maintenance and repair work on a boiler at the plant, and that LP & L had employees on its payroll who were capable of performing the same work that plaintiff was performing; an LP & L purchase order for the work plaintiff was engaged in at the time of the accident stating, “this order is being issued for a one-year period effective October 15, 1982 to cover miscellaneous work as required at the locations indicated above to repair boiler and/or piping”; a copy of the LP & L contract with Lou-Con; a copy of the Lou-Con Time Sheet for the date of the accident; a copy of LP & L’s articles of incorporation, which state that the objects and purposes of LP & L are “to acquire ... construct, build, install, equip, improve, use, operate, maintain and work upon any and all kinds of plants and systems for the manufacture, production, generation ... of electricity”.

The record supports the summary judgment in favor of LP & L. The affidavit, purchase order, time sheet, and articles of incorporation show that when he was injured plaintiff was working at the LP & L plant pursuant to the contract between LP & L and Lou-Con, and that the boiler repairs in which he was engaged are a “routine”, “customary” and “necessary” part of LP & L’s business. The evidence presented in support of the summary judgment also shows that LP & L was normally equipped to handle boiler repair work. The work plaintiff was engaged in was general maintenance and repair work, which by its nature allows the smooth and continued operation of LP & L. Klohn v. Louisiana Power & Light Company, 394 So.2d 636 (La.App. 1st Cir.1980), writ den., 399 So.2d 612 (La.1981), see also Redler v. Louisiana Power & Light Company, Inc., 383 So.2d 409 (La.App. 4th Cir.1980).

Plaintiff also claims that LP & L cannot be considered a statutory employer because he was not engaged in manual labor. Plaintiff asserts that because he is an experienced boilermaker and a code certified welder, and he was practicing his craft at the time of the accident that he was engaged in skilled labor, not manual labor.

In order to resolve this issue we must look to the statute. LSA-R.S. 23:1021 clearly requires the court to look to the totality of the work the contractor is performing under the contract, not the individual worker’s job. The work order under which the plaintiff was employed specified that the contractor was to be engaged in repairing boilers and piping.

In Timberlake v. Avis Rent A Car System, 361 So.2d 934 at 935 (La.App. 4th Cir.1978) this court' stated:

We refer to the case of Welch v. Newport Industries, Inc., 86 So.2d 704 (La.App.1956) wherein the court, in applying the term “manual labor” to the Workmen’s Compensation Law stated at page 707: * * * but the true legal meaning of the term “manual labor” is to denote work in which the physical element predominates over the mental, see 26 Words and Phrases, Verbo Manual Labor, p. 603. For purposes of determining compensation coverage, the distinguishing feature is whether the workingman participates physically himself, rather than — so to speak — aloofly directs in clean Sunday clothes.

Clearly in repairing boilers and piping “the physical element predominates over the mental.” Accordingly we find that Lou-Con contracted with LP & L to perform manual labor.

Even though Lou-Con may be an independent contractor, in accordance with its contract with LP & L sufficient manual labor was performed so as to make LP & L a statutory employer, thus limiting plaintiff’s remedy to workmen’s compensation.

For the foregoing reasons the trial court’s grant of the motion for summary judgment is affirmed. Appellant is assessed all costs of this appeal.

AFFIRMED.

      . LSA-R.S. 23:1021(6) specifies that only independent contractors who spend a substantial amount of work time in manual labor are covered under the workers compensation provisions. That portion of the statute reads as follows:
      (6) "Independent contractor” means any person who renders service, other than manual labor, for a specified recompense for a specified result either as a unit or as a whole, under the control of his principal as to results of his work only, and not as to the means by which such result is accomplished, and are expressly excluded from the provisions of this Chapter unless a substantial part of the work time of an independent contractor is spent in manual labor by him in carrying out the terms of the contract, in which case the independent contractor is expressly covered by the provisions of this Chapter.


author: ARMSTRONG, Judge. LOBRANO, Judge,

text:
    Emile L. TURNER, Jr. v. Helen Ruth Gubbels TURNER.
    No. CA-1857.
    Court of Appeal of Louisiana, Fourth Circuit.
    Nov. 14, 1984.

      A.D. Freeman, Charlotte A. Hayes of Satterlee, Mestayer & Freeman, New Orleans, for defendant-appellee.
    Cabral & Cabral, Harry R. Cabral, Jr., H. Craig Cabral, Thomas M. Young, New Orleans, for plaintiff-appellant.
    Before CIACCIO, LOBRANO and ARMSTRONG, JJ.
   ARMSTRONG, Judge.

Appellee, Helen Turner, sued her former husband, Emile Turner, for past due child support and attorney fees. The trial court awarded her $500 in past due child support and $200 in attorney fees. Emile Turner appeals. We affirm.

On April 27, 1983 the trial court issued a joint custody judgment covering the custody of Bret and Bert Turner by their parents, Emile Turner and Helen Turner. See 455 So.2d 1374. By that judgment physical custody of the children was to alternate annually between the parents. Helen Turner, who assumed custody of the children on July 15, 1983, has a history of mental illness. In the fall of 1983 her illness manifested itself. On Friday, October 14, 1983, Helen Turner checked herself into a hospital. Emile Turner took physical custody of the children on the same day.

On October 17 Emile Turner filed a motion for provisional custody of the children and a rule to show cause why the joint custody judgment should not be modified to grant permanent custody to him. Mr. Turner was granted provisional custody. On November 9, 1983 the trial court held a hearing on that Rule. The court dismissed the rule and returned custody of the children to their mother.

Emile Turner had physical custody of the children from October 14, 1983 to November 9, 1983. Mr. Turner did not make his scheduled October 15, 1983 child support payment. Consequently, Helen Turner filed a rule for executory judgment, contempt, and attorney’s fees against Emile Turner for his failure to make the scheduled October payment. A hearing was held on that Rule on December 14, 1983. Following that hearing the court entered a judgment in favor of Helen Turner for the amount of the October child support payment, $500, as well as $200 in attorney’s fees and court costs.

On appeal Emile Turner first argues that the provisional custody order modified the joint custody judgment, releasing him from his obligation to pay child support to his ex-wife while he had physical custody of the children under that order.

Mr. Turner points to the joint custody judgment which, in pertinent part, reads as follows:

E. SUPPORT
While the father of the twins has their physical custody he shall provide, without exception, all support, maintenance, and care, including housing, school expenses, clothing, food, medical care, etc. —and he shall not be required to pay the mother anything.
While the twins are in the physical custody of their mother, their father shall pay the following:
(a) All medical expenses for the children.
(b) All schooling or educational expenses.
(c) Child support to the mother in the sum of $500.00 per month on the 15th day of each month, in advance.
All other expenses or needs of the children while in their mother’s physical custody are to be paid and furnished by the mother.

The general rule concerning non-payment of child support was enunciated by this court in the case of Hall v. Hall, 379 So.2d 826 (La.App. 4th Cir.1980). In that case the court stated;

Accrued child support is a property right of the party in whose favor it is granted. In computing the amount due under a judgment of support, the father is not entitled to a credit for the time the children resided with him absent a modification of the judgment which made the award. Stated another way, credits based on equitable considerations cannot be applied retroactively against the vested property right of accrued child support and can only be considered prospectively if the child support judgment is amended or altered by a subsequent judgment.

Id., at 828 (emphasis added).

Mr. Turner would have us agree that the provisional custody order modified the original joint custody judgment. However, we are of the opinion the trial judge was correct in interpreting the law and the joint custody judgment. Mr. Turner must modify the joint custody support judgment itself before his obligation to pay child support would be suspended. In that section of the joint custody judgment entitled “support” the term “physical custody” can fairly be read as pertaining to the following portion of the joint custody judgment:

A. PHYSICAL CUSTODY
The physical possession, care, custody and control of the twins is to be alternated annually between the two parents. The year shall begin on July 15th and end July 14th the following year, and thq first year will start on July 15, 1983, at which time physical custody is to be with the mother, Helen Turner ...

When the joint custody judgment referred to physical custody it was referring to that section of the judgment setting out the alternating annual custody of the children and not to any type of temporary arrangements for the physical custody of the children. The trial court made that clear. Thus absent a modification of the joint custody judgment Mr. Turner was still required to pay child support for the month of October.

In addition Emile Turner claims that the trial court incorrectly awarded attorney fees to Helen Turner. L.S.A.-R.S. 9:305 states, “When the court renders judgment in an action to make past due alimony or child support executory, or in an action to enforce child visitation rights, except for good cause, the court shall award attorney fees and costs to the prevailing party.” Emile Turner argues that, “[a]ctions taken on advice of counsel, even when that advice is erroneous have been held to constitute the good ‘cause’ which will preclude an award of attorneys fees under R.S. 9:305.”

We agree that refusal to pay child support or alimony on advice of counsel constitutes “good cause” under 9:305. Morgan v. Morgan, 452 So.2d 255 (La.App. 5th Cir.1984). However at the hearing, neither Mr. Turner nor his counsel argued that Mr. Turner should not be required to pay attorney fees because he was following his attorney’s legal advice. Therefore, we must find that Mr. Turner did not show “good cause” for his failure to pay child support and consequently that Helen Turner is entitled to attorney fees under R.S. 9:305.

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

AFFIRMED.

LOBRANO, J., concurs.

LOBRANO, Judge,

concurring.

I reluctantly concur in the affirmance of the award in the instant case but only because the law is clear in this matter. In doing so, however, I feel compelled to point out that I disagree with the principle enunciated in Hall v. Hall, 379 So.2d 826 (La.App. 4th Cir.1980). It is ridiculous to state as a matter of law that if the physical custody of a child changes, the support obligations will remain the same without a court ordered modification of the original support decree. The party obtaining the physical custody in effect pays twice unless he goes through the added cost and expense of obtaining a judicial modification. In requiring this procedure, the law totally ignores the practicality of the situation.