text:
    STATE of Louisiana, Appellee, v. Kenneth Ray Clark RAMSEY a/k/a Kenneth Ray Clark, Appellant.
    No. 15650-KA.
    Court of Appeal of Louisiana, Second Circuit.
    Sept. 26, 1984.

      Samuel Thomas, Tallulah, for appellant.
    William J. Guste, Jr., Atty. Gen., Baton Rouge, James David Caldwell, Dist. Atty., Tallulah, for appellee.
    Before PRICE, HALL and NORRIS, JJ.
   HALL, Judge.

The defendant, Kenneth Ray Clark Ramsey, appeals from his conviction of simple robbery, LSA-R.S. 14:65, for which he was sentenced to five years at hard labor. On February 21, 1984, this court affirmed the defendant’s conviction, 449 So.2d 1201, limiting the scope of review to errors discoverable by an inspection of the pleadings and proceedings due to the failure of the defendant to file assignments of error with the trial court as required by LSA-C.Cr.P. Art. 844. On March 16, 1984, the Louisiana Supreme Court vacated the judgment of this court, and with instructions, ordered the court of appeal to reconsider the defendant’s appeal. State v. Ramsey, 450 So.2d 660 (La.1984). The Supreme Court held that when an appellant files assignments of error for the first time in the appellate court, the appropriate action for that court is to hold the appeal in abeyance while ordering appellant’s counsel to comply with LSA-C.C.P. Art. 844. Having considered defendant’s assignments of error subsequently filed in the trial court, we affirm the conviction and sentence.

The state’s evidence establishes that on the evening of September 12, 1980, two men armed with a shotgun and a pistol, robbed Mr. and Mrs. John T. Willis of cash and jewelry at their home in Tallulah, Louisiana. According to the plan, Stanley Washington and his cousin, Donald Washington, were to break into the Willis house shortly before the Willises closed their service station and convenience store in Tallu-lah. The defendant was to purchase gasoline from the Willis Service Station shortly before closing time with $5 given to him by Donald Washington. When the Willises closed their business, the defendant was to drive to the Willis house and honk his horn once in order to notify the two inside that everything was okay. When the Willises left the service station for their house, defendant was to drive by the Willis house again and honk his horn twice in order to inform the two inside the house that the Willises were on their way home. At trial, both Washingtons indicated that the defendant did what he was supposed to do according to the plan.

Mr. and Mrs. Willis testified at trial that after entering the bedroom of the home, two men entered pointing guns at them and told them to lay down and turn over. The two men then robbed the Willises of a watch, a diamond ring, and approximately $3,000 in cash, checks, coins, and food stamps. The two men then tied the Willis-es up and departed.

Both Stanley Washington and Donald Washington pled guilty to the robbery and testified against the defendant. Both Washingtons indicated that approximately 15 minutes after the robbery the defendant came by Donald Washington’s house where he received $250 from each of the two men as his share of the robbery proceeds.

A shotgun used by the Washingtons in the robbery belonged to the defendant. The defendant led police officers to a stream where he had disposed of the gun after the robbery, and the gun was recovered. According to the testimony of a deputy sheriff, the defendant admitted his participation in the crime as described by the Washingtons.

Defendant was charged by bill of information with armed robbery, however, after trial by jury, defendant was found guilty of the responsive offense of simple robbery in violation of LSA-R.S. 14:65. On appeal, the defendant urges four assignments of error:

(1) The defendant urges on appeal that the trial court committed error when the Honorable Judge Ragland denied the defendant the right to impeach the testimony of Donald Ray Washington;
(2) The defendant urges on appeal that the trial court committed error when it refused to allow the introduction of a letter allegedly written by Wilson Bryant for Donald Ray Washington to the attorney for the defense, wherein Washington offered to give favorable testimony for the sum of $1,500;
(3) The defendant urges on appeal that the trial court committed error when it allowed testimony by officers, Billy Guice and Robert South, of the alleged statements made by the defendant after he retained counsel; and
(4) The defendant urges on appeal that the trial court committed error in sentencing the defendant to five years.

Assignments of Error Nos. 1 and 2:

By this assignment the defendant asserts that the trial court erred in refusing to allow a letter into evidence in order to impeach the testimony of Donald Ray Washington.

Prior to trial, Donald Washington gave Marjorie Day, a jailer with the Madison Parish Sheriffs Department, an envelope with a note attached. Donald Washington admitted writing the note. The note directed to Marjorie Day states as follows:

“Hello, Margie
“I don’t mean to Worry you this morning, But if you can fine time to drop this letter off, I would more than appreciate it, anytime that will have the chance, just put it in the Mail Box ‘office or House’.
‘Thank you Very Much,’ ”

The envelope attached to the note was addressed to the defendant’s attorney, Samuel Thomas. Donald Washington denied that he wrote the letter which was inside the envelope to the defendant’s attorney. Washington asserted that he delivered the envelope with the letter inside as a favor for another inmate, Wilson Bryant. Wilson Bryant testified that the letter inside the envelope was written by him. However, Bryant further indicated that he copied the letter from a document prepared by Donald Washington upon Washington’s instructions. The trial court sustained the state’s objection to the introduction of the letter into evidence on the basis of inadequate foundation. The trial court additionally stated it felt the letter was hearsay, despite the lack of an objection on the basis of hearsay.

The trial court further ruled that the letter could not be made part of the record in the form of a proffer. However, according to the undisputed allegations in defendant’s brief, Donald Washington allegedly indicated to defendant’s attorney in the letter that he would testify in favor of the defendant in return for $1,500.

The defendant asserts in brief that the letter was admissible as extrinsic evidence, without laying a foundation. We need not reach this question since we find the defendant presented an adequate foundation for the admission of the letter into evidence.

No instrument under private signature is admissible in evidence without proof of its genuineness. LSA-R.S. 15:456. The document offered must be authenticated as genuinely that which it purports to be. State v. Martin, 356 So.2d 1370 (La.1978).

In State v. Taylor, 448 So.2d 773 (La.App. 2d Cir.1984), this court found that a document is admissible if there is evidence sufficient to support a finding that the item in question is what its proponent claims it to be. Proof of any circumstances which will support a finding that the writing is genuine will suffice to authenticate the writing.

In the present case there is strong circumstantial evidence that Washington wrote the letter in question or at least directed Wilson Bryant to write the letter in his own behalf. Defendant, while in jail, handed the letter to Marjorie Day asking her to deliver or mail the letter to the defendant’s attorney. Additionally, the subject matter of the letter clearly pertains to Donald Washington’s testimony. Therefore, from the evidence presented to the court, it is more probable than not that the letter is a letter written by Donald Washington or in his own behalf. The evidence establishes the genuineness and authenticity of the letter as one from Donald Washington to the defendant’s attorney. Therefore, a proper foundation was laid for its admission and the trial court erred in excluding the letter.

However, a judgment or ruling shall not be reversed by an appellate court because of any error, defect, irregularity, or variance which does not effect substantial rights of the accused. LSA-C.Cr.P. Art. 921. Error made by the trial court'is not fatal unless defendant demonstrates actual prejudice. State v. Allen, 440 So.2d 1330 (La.1983); State v. Johnson, 453 So.2d 279 (La.App. 2d Cir.1984).

Had the letter been admitted into evidence, it would have reflected on the veracity of Donald Washington’s testimony. However, the jury was well aware of the Washington’s guilty plea for the same crime for which the defendant was on trial. The jury had sufficient evidence, if they chose, to doubt the testimony of Donald Washington.

Additionally, the testimony of Donald Washington was corroborated by his cousin, Stanley Washington. Further, there was substantial other evidence supporting a finding of guilt. Therefore, we find the error committed by the trial court to be harmless and not warranting reversal of the defendant’s conviction.

The defendant further asserts that under LSA-R.S. 15:468, the district attorney had an obligation in the interest of justice to grant immunity to Wilson Bryant and compel him to testify in regards to the letter in dispute and Donald Ray Washington’s connection with that letter.

Outside the presence of the jury, Wilson Bryant testified he wrote the letter in question upon instructions by Donald Ray Washington. According to defendant’s brief, the letter indicated that Washington would accept $1,500 in return for favorable testimony on behalf of the defendant. The trial court then found it necessary to appoint counsel to represent Wilson Bryant. Bryant’s appointed attorney advised Bryant to exert his Fifth Amendment privilege regarding any questions concerning the letter.

Defendant asserts that Bryant should have been granted immunity pursuant to LSA-R.S. 15:468. LSA-R.S. 15:468 states as follows:

“Any person may be compelled to testify in any lawful proceeding against another charged with commercial bribery, public bribery, bribery of voters or corrupt influencing, and shall not be permitted to withhold his testimony upon the ground that it may incriminate him or expose him to public infamy; but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony.”

It is readily apparent that LSA-R.S. 15:468 has no application to the present case since it has not been shown that either Wilson Bryant or the defendant was charged with any type of bribery.

We find these assignments of error to be without merit.

Assignment of Error No. 3:

By this assignment, the defendant asserts that statements he made after his arrest were inadmissible because they were taken as a result of police interrogation after defendant had invoked his right to counsel.

In Edwards v. Arizona, 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981), the United States Supreme Court held that once an accused has expressed his desire to deal with the police only through counsel, he is not subject to further interrogation by the police until counsel has been made available to him, unless the accused himself initiates further communication with the police. Once the defendant has invoked his right to counsel, the validity of any subsequent waiver depends upon the scrupulously honoring of that right by the police. State v. McCarty, 421 So.2d 213 (La.1982).

Defendant argues in brief that officers Billy Guice and Robert South testified with regard to statements made by the defendant after they were notified that counsel was retained. However, evidence adduced at trial does not support the defendant’s claim.

The evidence shows that prior to the defendant’s arrest, the defendant assisted the officers in recovering a shotgun used in the robbery. Officer Guice testified that the defendant was advised of his Miranda rights and that there were no threats or promises made to the defendant in order to induce him to make a statement. Further, Officer Guice recalled no mention of counsel by the defendant.

When a defendant alleges police misconduct in reference to a statement made by him, the state must specifically rebut those allegations. LSA-R.S. 15:451; State v. Neslo, 433 So.2d 73 (La.1983). The evidence presented in the present case indicates that the state made an adequate showing that the defendant had not invoked his right to counsel. Defendant’s apparent cooperation, along with Officer Guice’s testimony that the defendant had been advised of his Miranda rights rebuts defense counsel’s bare allegation in brief that the defendant had informed the officers that he had employed an attorney. The defendant’s argument lacks any evi-dentiary basis in the record.

Therefore, we find that this assignment of error is without merit.

Assignment of Error No. 4.

By this assignment, the defendant asserts that the defendant received an excessive sentence. The record reflects the trial court sentenced the defendant to serve five years at hard labor. The defendant’s conviction of simple robbery under LSA-R.S. 14:65 allows for a term of imprisonment of not more than seven years. In brief, the defendant argues that the trial court failed to adequately consider the mitigating circumstances of the defendant’s case.

The sentencing guidelines of LSA-C.Cr.P. 894.1 provide the criteria to consider in determining whether a sentence is excessive. State v. Sepulvado, 367 So.2d 762 (La.1979); State v. Tully, 430 So.2d 124 (La.App. 2d Cir.1983). While the trial judge need not articulate every aggravating and mitigating circumstances in Article 894.1, the record must reflect that he adequately considered these guidelines in particularizing the sentence to the defendant. State v. Smith, 433 So.2d 688 (La.1983); State v. Cody, 446 So.2d 1278 (La.App. 2d Cir.1984).

In sentencing the defendant, the trial court found that there was an undue risk that during a period of suspended sentence or probation, the defendant would commit another crime. The court also found that the defendant was in need of correctional treatment in a custodial environment in order to reestablish his sense of right and wrong. The court also found that a lesser sentence would deprecate the seriousness of the crime because of the use of the pistol and a shotgun in the commission of the robbery.

The pre-sentence report contained in the record indicates numerous mitigating circumstances. Specifically, the defendant is a youthful first-felony offender with only one prior conviction involving theft by shoplifting. The defendant received an associate degree in general electricity and wiring. The defendant has one child from his marriage and one child born prior to his present marriage. Law enforcement officials from both Madison Parish and Tallu-lah advised that defendant was not known as a troublemaker.

This court recognizes that the trial court failed to refer to mitigating circumstances indicated in the pre-sentence report. However, despite the lack of recitation of mitigating circumstances, the record fully supports the sentence given in the present case. Defendant’s participation in a crime involving dangerous weapons clearly supports the sentence of five years. Therefore, we find this assignment of error to be without merit.

Decree

The defendant’s conviction and sentence are affirmed.

Affirmed.


source: Caselaw Access Project

author: KLEES, Judge.

license: Public Domain

text:
    Janice G. SMITH, individually and as natural tutrix for Johnathan Clark v. ORLEANS ELECTRIC, INC., Philip G. Kreeger, United States Fidelity and Guaranty Co., and James Ferguson.
    No. CA-1844.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    Rehearing Denied Oct. 29, 1984.
    Writ Denied Nov. 26, 1984.

      Gerald Thomas Laborde, Gretna, for plaintiff-appellant, Janice G. Smith, individually and as natural tutrix for Johnathan Clark.
    Adams & Reese, Richard B. Eason, II, New Orleans, for defendants-appellees, Orleans Elec., Inc., Philip C. Kreeger, U.S. Fidelity and Guar. Co. and James Ferguson.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   KLEES, Judge.

The plaintiff, Janice G. Smith, brought suit against Philip C. Creger, Orleans Electric, Inc., United States Fidelity and Guaranty Company, James C. Ferguson and Aetna Life and Casualty Company, on behalf of herself and her minor child Johnathan Clark, for injuries which they received in two separate auto accidents.. The defendants, James Ferguson and Aetna, excepted to the suit against them based on the lack of Janice Smith’s procedural capacity to assert the claim on behalf of her child, improper cumulation of actions, failure to state a cause of action, and improper venue. The trial judge rendered judgment in favor of the defendants and dismissed the suit as to them. It is from this judgment that the plaintiff appeals. The issues on appeal are 1) whether the trial court erred in dismissing Ferguson and Aetna from the second and third causes of action of the petition; 2) whether the trial court erred in finding improper venue as to those defendants; and 3) whether the actions were improperly cumulated. For the following reasons, we affirm the judgment of the trial court.

The plaintiff, in her petition, attempts to assert three causes of action. The first concerns an automobile accident on May 15, 1983 in St. Bernard Parish, in which the plaintiff and her child were injured as a result of the alleged negligence of Philip Creger. Creger is domiciled in St. Bernard Parish. Plaintiff also sued Creger’s alleged employer, Orleans Electric, which is domiciled in Orleans Parish, and its insurer, United States Fidelity and Guaranty Company. The second accident sued upon occurred in East Baton Rouge Parish between the plaintiff and Ferguson. Plaintiff, also sued Ferguson’s insurer, Aetna. In the plaintiff’s third “cause of action,” she prayed that “in the event the injuries, disabilities and/or damages suffered by her and her child were so jointly, contributing, concurring and/or compounding in causation as to preclude division among the defendants, that they be cast in judgment jointly and in solido in favor of the plaintiff.” The plaintiff filed her suit in the Civil District Court for the Parish of Orleans.

From our review of the record, we cannot find that the plaintiff has at any time qualified as natural tutrix in order to institute suit on behalf of her minor child as required by Code of Civil Procedure Article 683. Therefore, the trial court was correct in its granting of the exception of lack of procedural capacity in favor of the defendants, Ferguson and Aetna.

The defendants also excepted to the improper cumulation of the actions asserted in the plaintiffs petition. The first two causes of action sued upon are entirely separate automobile accidents occurring approximately eight months apart and with domiciliaries of two different parishes. Code of Civil Procedure Article 463 governs the cumulation of actions involving two or more parties as either plaintiffs or defendants. It says,

Two or more parties may be joined in the same suit, either as plaintiffs or as defendants, if:
(1) There is a community of interest between the parties joined;
(2) Each of the actions cumulated is within the jurisdiction of the court and is brought in the proper venue; and
(3) All of the actions cumulated are mutually consistent and employ the same form of procedure.
Except as otherwise provided in Article 3657, inconsistent or mutually exclusive actions may be cumulated in the same suit if pleaded in the alternative.

The article requires that all of the elements be met in order to cumulate such actions. In this case, the plaintiff contends that there is a community of interest, but has not been able to overcome the venue requirement of C.C.P. Art. 463. Even if the suit on the May 1983 accident could be properly brought in Orleans Parish, that Parish is not the proper venue for an East Baton Rouge Parish defendant. Code of Civil Procedure Article 42(1) requires that an action against an individual who is domiciled in the state be brought in the parish of his domicile. C.C.P. Art. 42(7) requires that an action against a foreign or alien insurer shall be brought in East Baton Rouge Parish. Therefore, East Baton Rouge Parish would be the proper venue for Ferguson and Aetna. The plaintiff, in addition, had available to her C.C.P. Art. 74, which is an exception to C.C.P. Art. 42. That article would allow her to sue for the recovery of damages for an offense or quasi-offense in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained. The October 1982 accident and resulting damages occurred in East Baton Rouge; therefore, Orleans Parish is again improper as to these defendants.

The plaintiff attempts to have the defendants cast in judgment as solidary obligors in her third “cause of action,” thereby creating another exception to C.C.P. Art. 42. C.C.P. Art. 73 provides that an action against joint or solidary obli-gors may be brought in any parish of proper venue under Article 42, as to any obligor who is made a defendant. We agree with the trial court’s finding that the plaintiff stated no facts which would create solidary liability among the defendants joined in this suit.

The plaintiff has not been able to establish that the Orleans Parish venue selected is proper as to the defendants, James Ferguson and Aetna Life and Casualty Company; accordingly, the judgment of the trial court dismissing Ferguson and Aetna from the plaintiff’s suit is hereby affirmed. Costs are to be borne by the appellant.

AFFIRMED.

      . While in the style of the petition, the name of one of the defendants is referred to as Philip G. Kreeger, within the body of the petition he is referred to as Philip C. Creger.


text:
    STATE of Louisiana v. Dani C. SCHREIBER and Robert M. Duplechin.
    No. KA-2071.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    Rehearing Denied Oct. 29, 1984.

      William J. Guste, Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., Harry P. Con-nick, Dist. Atty., Beryl M. McSmith, Asst. Dist. Atty., New Orleans, for plaintiff-ap-pellee, State of La.
    Robert I. Broussard, John F. Rau, Jr., Gretna, for defendants-appellants, Dani C. Schreiber and Robert M. Duplechin.
    Before REDMANN, C.J., and KLEES and WILLIAMS, JJ.
   KLEES, Judge.

On August 24, 1983, Dani C. Schreiber and Robert M. Duplechin III were jointly charged by separate bills of information with violations of R.S. 40:967, possession of cocaine, and R.S. 40:966, possession of marijuana. Both men initially pled not guilty. Motions to suppress evidence were filed, and after a full hearing they were denied. On October 31, 1983, the defendants withdrew their former plea of not guilty and pled guilty to both charges, reserving their rights to appeal the ruling on the Motions to Suppress under State v. Crosby, 338 So.2d 584 (1976). Each defendant was then sentenced on the 40:967 offense to serve three years at hard labor, suspended, placed on three years active probation and fined $1,000.00. Each defendant was also sentenced on the 40:966 offense to serve four months in Parish Prison, suspended, and fined $250.00. Both sentences were to run concurrently. On appeal they urge that the trial court committed reversible error when it denied the appellants’ Motions to Suppress the Evidence. We find no error on the part of the trial court and Affirm.

FACTS

While patrolling the New Orleans warehouse district in the early morning hours of July 30, 1983, Officers Tamplain and Pena of the Harbor Police spotted a pickup truck containing two men in the 600 block of S. Peters Street. It was nearly 2:00 a.m. and the area was deserted. When the officers returned to S. Peters about 10 minutes later, the truck was still there but the driver was no longer visible. The officers pulled up behind the truck, and Officer Tamplain exited. As he approached the vehicle, Tamplain saw the driver, Duple-chin, hunched over toward the center of the front seat. The passenger, Schreiber, turned around and saw Tamplain approaching, leaned over and mumbled something toward Duplechin. Duplechin straightened up immediately and fumbled with something toward the center of the seat. Officer Tamplain then asked Duplechin to exit with “his hands in plain sight.” When Duplechin exited, the officer smelled the strong odor of burnt marijuana and noted that the defendant looked intoxicated. Tamplain flashed his light in the pickup truck and saw a piece of wood with several rows of cocaine on it partially concealed by a shirt. The Narcotics Division of the NOPD was summoned to the scene. Three bags of marijuana were later observed sticking out of a clutch bag on the floor of the passenger’s side of the vehicle.

Both defendants testified at the suppression hearing. They stated that the cocaine was completely hidden and that Officer Tamplain discovered it only after sticking his hand into the vehicle and removing the shirt.

Errors Patent

A review of the record reveals there are no errors patent.

Assignment of Error

The defendants assign error to the trial court’s denial of their motions to suppress the evidence. They contend that: (1) the evidence was not in plain view when it was discovered; (2) the initial investigatory stop was not made upon reasonable cause.

Whether the cocaine was in plain view turns upon a credibility call within the province of the trial court. The defendants testified that the contraband was-entirely covered by a shirt on the front seat of the pickup. Officer Tamplain testified that the cocaine was only partially concealed. A trial court’s finding of credibility is accorded great weight and will not be disturbed absent an abuse of discretion. State v. Neslo, 433 So.2d 73 (La.1983).

This assignment is without merit, as the initial investigatory stop was made on reasonable cause.

In State v. Flowers, 441 So.2d 707 (La.1983), the court, in a unanimous decision, discusses the problem of determining a valid investigatory stop and suggests a mode of analysis applicable to such an inquiry: The Court uses a three-tiered test:

(a) Whether an intrusion was an arrest or an investigatory stop.
(b) Whether the particular stop was of a type which is reasonable in view of the public interest balanced against the degree of invasion entailed.
(c) Whether the particular stop was warranted by a reasonable suspicion based on specific articulable facts and rational inferences from these facts. Flowers, supra, at 713.

In Flowers, supra, the Court states that the distinction between an arrest and a stop is often crucial because an arrest can be made only on a probable cause standard while a stop may be made under “the more relaxed ‘reasonable suspicion’ standard” of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Among the circumstances courts have considered are: Whether the suspect was questioned at the scene of the detention or transported to the police station; whether he was told he was free to go and would have, in fact, been restrained had he tried to leave; the officers’ intent in stopping the citizen; the impression conveyed to the citizen as to whether he was already in custody or only briefly detained for questioning; the length of the stop, questions asked, and the extent of the search, if any.

Under the facts of the instant case, the line between “arrest” and “investigatory stop” is a thin one. It should be noted that the defendant’s pickup was parked, i.e., already at rest, prior to Officer Tam-plain’s initial confrontation with the driver, Duplechin. There is no indication in the record as to whether Tamplain was in uniform or whether he approached the vehicle with his gun drawn. However, it is clear he was riding in a marked, Harbor Police vehicle and that the passenger, Schreiber, turned around and observed him exiting the vehicle. He told Duplechin to exit “with his hands in plain sight” and to produce his driver’s license. However, the questions the officers asked had to do with whether Duplechin needed some type of assistance. While Duplechin fumbled for his license, the officer flashed his light into the vehicle and discovered the cocaine and drug paraphernalia. The stop does not appear to have been lengthy, and the officer’s intent, at least as it is stated in the transcript, was to render assistance. Given the length of detention, the officer’s expressed intention, and the lack of force used, this court deems the initial confrontation between Officer Tamplain and Robert Duple-chin a “stop”. Therefore, the next inquiry is whether the stop was reasonable.

Whether a stop is reasonable ordinarily depends on the weighing of the public interest against the degree of the intrusion. However, if Officer Tamplain’s expression of intent is credited, then this type of stop has been held reasonable under State v. Sims, 426 So.2d 148 (La.1983); State v. Keller, 403 So.2d 693 (La.1981); and State v. Neyrey, 383 So.2d 1222 (La.1979). That is, an officer stopping to render assistance to an individual in apparent need of it is acting within the permissible scope of his authority. In Sims, Keller, and Neyrey, supra, the defendants were found slumped over the steering wheels of their respective vehicles. In each case, the stops were held valid.

There are some instances in which a police officer may approach a citizen to investigate possible criminal behavior without probable cause to arrest or search for contraband or evidence of a crime. United States v. Brignoni-Ponce, 422 U.S. 873, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). There are other instances in which an officer is justified in detaining an individual to offer to render aid or assistance. State v. Sims; State v. Keller; State v. Neyrey, supra. “Nonetheless, the Fourth Amendment requires that the detaining officer have knowledge of specific, articulable facts, which, taken together with rational inferences from those facts, reasonably warrant the ‘stop’ or ‘seizure’.” Flowers, supra, at page 714, citing United States v. Cortez, 449 U.S. 411, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981); United States v. Brignoni-Ponce, supra; Terry v. Ohio, supra, and State v. Brown, 370 So.2d 547 (La.1979).

In this instance, the officers saw the two men sitting in a pickup truck in a deserted area of the city at approximately 2:00 a.m. in the morning. Ten minutes later, one of the men was no longer visible. Officer Tamplain and his partner stopped their vehicle, and Tamplain exited to investigate. Subsequently, as Tamplain approached the pickup, he noted that the “absent” driver had his head hunched down toward the center of the seat, that the passenger mumbled something, and that the driver, then straightened up and fumbled with something toward the middle of the seat. Under these circumstances we conclude that the officers acted lawfully when they investigated the parked automobile. This assignment is without merit.

Accordingly, for the reasons expressed above, appellants’ convictions and sentences are hereby Affirmed.

AFFIRMED.


author: BYRNES, Judge. REDMANN, Chief Judge, WILLIAMS, J.,

text:
    The BANK OF NEW ORLEANS AND TRUST COMPANY v. MONCO AGENCY, INC.
    No. CA 1375.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 1984.
    Rehearings Denied Oct. 29, 1984.
    Writ Denied Dec. 7, 1984.

      Paul R. Valteau, Jr., John S. Sciambra, Salvadore Panzeca, Peter C. Rizzo, Tod M. Thedy, Jules A. Pontana, Jr., New Orleans, for defendant-appellee.
    Curtis R. Boisfontaine, Sally A. Shushan, Louis L. Galvis, Robert E. Winn, and Henry W. Kinney, III, New Orleans, for plaintiff-appellant.
    Before REDMANN, C.J., and KLEES, BYRNES, LoBRANO and WILLIAMS, JJ.
   BYRNES, Judge.

This case involves an action on two promissory notes.

MONCO Agency, Inc., [“MONCO”] Defendant-Appellant is a holding company for Cotton Belt Insurance Company, [“CBIC”]. In the fall of 1981 MONCO transferred all of its financial accounts from the First National Bank of Commerce to The Bank of New Orleans and Trust Company, [“BNO”], Plaintiff-Appellee. This transfer was the apparent result of a concerted effort by BNO to obtain these accounts.

On November 10, 1981 BNO lent MON-CO $1,658,111.10. MONCO gave BNO a promissory note in that amount and pledged as collateral all of its CBIC stock. In January of 1982 BNO lent MONCO another $500,000.00 for which BNO received another promissory note. The CBIC stock was again pledged as collateral. The terms of both loans were set out in a letter agreement between BNO and MONCO.

In March of 1982 BNO received a letter from the Texas Board of Insurance which suggested that CBIC may be insolvent. After reviewing this letter, BNO felt that their collateral was impaired and accordingly gave MONCO twenty-four hours to furnish additional collateral.. Rather than furnishing the collateral, MONCO filed for and obtained a temporary restraining order enjoining BNO from attempting to collect on the two promissory notes.

On April 2, 1982, a hearing on the restraining order was held in Civil District Court for Orleans Parish. The court reviewed the evidence, which revealed that many judgments had been rendered against CBIC, and determined that MON-CO’s collateral was indeed impaired. However, MONCO and BNO entered into a compromise agreement resulting in the dissolution of the temporary restraining order.

As part of the compromise, which was approved by the court, all parties agreed that a declaratory judgment action would be filed to determine the true ownership of the MONCO funds on deposit with BNO and whether BNO had the right to set-off against these funds. The compromise also provided that three certificates of deposit, with a total value of $805,000.00, would be issued in the name of the Clerk of the Civil District Court for Orleans Parish. These CD’s would represent the amount of three other MONCO CD’s in which ownership was disputed and would be held by the clerk pending the outcome of the declaratory judgment action. The remaining funds in dispute, via CD’s, were also placed in the custody of the clerk.

On April 8, 1982, BNO filed the declaratory judgment action in Civil District Court seeking judgment on the promissory notes. On August 5, 1982 BNO filed a motion for summary judgment. In December of 1982 the trial court granted the motion for summary judgment holding that MONCO was in default on the promissory notes and that BNO had a right to setoff against the funds MONCO had on deposit in their Bank. MONCO now appeals the granting of summary judgment.

ASSIGNMENT OF ERROR

MONCO contends that the trial court erred in granting summary judgment when material issues of fact existed regarding default on the notes and ownership of the funds.

SUMMARY JUDGMENT

The standards for granting a Motion for Summary Judgment are set out in Civil Procedure Articles 966 and 967, which state in pertinent part:

Art. 966 Motion for Summary Judgment; procedure
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.
Art. 967. Same; affidavits
When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him.

It is well settled that summary judgment is to be used cautiously and the procedure is not intended as a means of circumventing a trial on the merits. See: Millet v. Johnson, 381 So.2d 1293 (La.App. 4th Cir.1980); Savoy v. Action Products Company Inc., 324 So.2d 921 (La.App. 3rd Cir., 1975); Rosen v. Capital City Press, 314 So.2d 511 (La.App. 1st Cir.1975). Granting a motion for summary judgment is improper if there exists even the slightest doubt that it should be granted. Burke v. Occidental Life Insurance Company of California, 416 So.2d 177 (La.App. 4th Cir.1982). Any doubt is resolved in favor of a trial on the merits. Blount v. Exxon Corporation, 395 So.2d 355 (La.App. 1st Cir.1981). Finally, the likelihood that a party will prevail on the merits is of no moment when considering a motion for summary judgment. Gulf Wandes Corp. v. Vinson Guard Service Inc., 393 So.2d 207 (La.App. 1st Cir.1980).

In Vermilion Corp. v. Vaughn, 397 So.2d 490, 493 (La.1981), the Supreme Court outlined the general rules regarding summary judgment procedure:

A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law. La.C.C.P. art. 966. Because the mover has the burden of establishing that no material factual issue exists, inferences to be drawn from the underlying facts contained in the materials before the court must be viewed in the light most favorable to the party opposing the motion. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); United States v. Diebold Inc., 369 U.S. 654, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962); Mashburn v. Collin, 355 So.2d 879 (La.1977). To satisfy his burden the mover must meet a strict standard by a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. Adickes v. S.H. Kress & Co., supra; Sartor v. Arkansas Nat. Gas Corp., 321 U.S. 620, 64 S.Ct. 724, 88 L.Ed. 967 (1944). The papers supporting mover’s position are closely scrutinized, while the opposing papers are indulgently treated, in determining whether the mover has satisfied his burden. Adickes v. S.H. Kress & Co., supra; 6 Moore’s Federal Practice 56.15[3].

Applying these rules to the case at bar we conclude that a genuine issue of material fact exists regarding the true ownership of the funds MONCO had on deposit with BNO. The defendant’s counter-affidavit combined with the other pleadings contained in the record clearly support this conclusion.

The affidavit of Oliver S. Motagnet, Jr., for defendant states in pertinent part:

6. The funds that the Bank of New Orleans and Trust Company offset against were funds that were either in or came directly from a checking account designated specifically for the investment of funds belonging to Cotton Belt Insurance Company, Inc. Agents. That the account was opened up in the name of “MONCO Agency, Inc. Agent's Account” specifically for those funds for Cotton Belt Insurance Company, Inc. agents.
7. The Bank of New Orleans and Trust Company and Mr. Ellis were told that there were large sums of money that stood in the name of Moneo Agency, Inc. that were, in fact, Cotton Belt Insurance Company funds or Cotton Belt Insurance Company Agents’ funds.
8. Oliver S. Montagnet, Jr. did tell the Bank of New Orleans and Trust Company or Lawrence Ellis, with whom he negotiated the Moneo loans, that Certificates of Deposit and checking accounts standing in Moneo Agency, Inc.’s property and as such were due compensation in the event of default. The loan agreement was not negotiated on that basis. To the contrary, the Bank of New Orleans and Trust Company was told by Oliver S. Montagnet, Jr. that the agents’ funds held by Moneo Agency, Inc. could not be pledged against Moneo Agency, Inc. loans.
11. In paragraph 6 of the Motion for Summary Judgment, the Bank of New Orleans and Trust Company request a declaration that it validly exercised an offset against the account entitled “Mon-eo Agency, Inc., Agents’ Account”. However, the funds belong to Cotton Belt Insurance Company, Inc. agents. The Bank of New Orleans and Trust Company was selected as a depository by Moneo Agency Inc. to deposit the Cotton Belt Insurance Company, Inc. Agents’ funds. The funds in this account belong to Cotton Belt Insurance Company, Inc. agents and not Moneo Agency, Inc. and the Bank of New Orleans and Trust Company.
12. The Certificate of Deposit Number 53373, 53371, 53373 and 53376 represent funds that were either in a checking account styled “Moneo Agency, Inc. Agents’ Account” or in Certificates of Deposit which were pledged as investments of the agents’ account funds which were owned by the Cotton Belt Insurance Company Inc. agents.

Viewing the facts alleged in the defendant’s affidavit in the light most favorable to him it is reasonable to infer that at least a portion of the funds deposited with BNO by MONCO may have been known to be monies belonging to Cotton Belt Agents and not to MONCO. This therefore raises the issue of whether setoff against these funds was proper, which should be determined at a trial on the merits.

Accordingly, when we closely scrutinize the mover’s position and more indulgently treat the opposing papers, we conclude that [MONCO] has failed to satisfy its burden of making a showing that is quite clear what the truth is and that excludes any real doubt as to the existence of any genuine issue of material fact. Vermilion, supra at 494.

See also: Whitney v. Mallet, 442 So.2d 1361 (La.App.3rd Cir.1983).

The judgment of the trial court is reversed and the case is remanded for trial on the merits.

Costs of this appeal are to be borne by appellee.

REVERSED AND REMANDED.

REDMANN, C.J., dissents with reasons.

WILLIAMS, J., dissents with reasons to be assigned.

REDMANN, Chief Judge,

dissenting in part.

I would affirm the judgment on the notes. I concur in reversing the judgment on the question of the bank’s entitlement to collect its claim against the disputed deposits, for there does appear to be a genuine dispute over whether certain deposits included the funds of third persons to the bank’s knowledge.

WILLIAMS, J.,

dissenting.

I respectfully dissent.

The requirement that MONCO’s collateral be unimpaired is uncontroverted, as is the actual impairment as defined by the parties. Impairment does not mean failure to pay when due.

I agree with the dissenting opinion of Chief Judge Redmann insofar as he would affirm the judgment on the notes. I would further hold that BNO need not be held responsible for the knowledge, either actual or constructive, of ownership of deposits in its banks, other than the name under which the accounts existed. See Shreveport Prod. Credit Ass’n v. Bank of Commerce, 405 So.2d 842, 845-46 (La.1981). I, therefore, would find that the trial court correctly granted summary judgment on the entire action.


author: LOBRANO, Judge.

text:
    Joyce ANDERSON v. Wilmer HINRICHS, et al.
    No. CA-1648.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 3, 1984.
    Rehearings Denied Oct. 29, 1984.
    Writs Denied Dec. 14, 1984.

      James H. Looney, New Orleans, for plaintiff-appellee.
    Wilmer G. Hinrichs, New Orleans, in pro. per.
    Before SCHOTT, BYRNES and LOBRA-NO, JJ.
   LOBRANO, Judge.

Joyce Anderson, appellee, filed suit on August 5, 1980 against Wilmer Hinrichs, appellant, seeking recovery for damages allegedly sustained as a result of appellant's failure to timely record an act of sale for which he served as notary, and in his delay in delivering a title insurance policy. The trial court awarded appellee $1,500.00 for legal expenses, $2,500.00 in general damages, plus interests and costs. Prom that judgment appellant has perfected this appeal. Appellee has answered seeking an increase in the award.

The facts of this matter are essentially undisputed. Appellee purchased a home at 4600 Deanne Street, New Orleans, Louisiana from Ms. Sophia Pesch Gerard and her son, Norton Gerard. The purchase agreement provided for the closing to be performed by vendor’s notary, who was appellant.

The act of sale was passed on May 2, 1977 in appellant’s office at which time he advised all parties that the title company required certain curative work prior to the issuance of the policy. The evidence reflects that all parties, including appellee were apprised of this problem sometime prior to the closing date but were all in agreement that the sale should be. closed anyway. At the closing appellant advised that he had already begun the necessary steps to satisfy the title company’s requirement, and that it only would be a week to ten days before the act could be recorded and the policy issued. It should be noted that appellant did not do the title examination, nor did he have any connection with the title insurance company other than ordering same for the benefit of appellee. He did not receive a fee for ordering same, but merely did so at the request of appel-lee.

The sale was not recorded until March 21, 1979 and the title policy was not delivered until October 21, 1981. At trial, appel-lee attempted to prove that because of the delay of these two items she is entitled to damages for emotional distress, lost wages, medical expenses and loss of a low interest loan for remodeling. Appellee alleged, and proved numerous demands upon appellant to perform these two acts.

Appellant does not deny his tardiness in performing these duties, but argues that the matter is prescribed by virtue of the one year prescriptive period. He argues that appellee had knowledge of the tort for which she sues as of November, 1978, the date on which she first sought legal counsel to assist her, yet failed to institute these proceedings until August 3, 1980.

Although appellant was acting primarily in a notarial capacity, we feel the jurisprudence dealing with legal malpractice is relevant and controlling. Although dealing with medical malpractice our Supreme Court in Sciacca v. Polizzi, 403 So.2d 728 (La.1981) pointed out that the nature of the duty breached should be determinative of. whether a cause of action is in tort or in contract. In Cherokee Restaurant, Inc. v. Pierson, 428 So.2d 995 (La.App. 1st Cir.1983) our brethern of the First Circuit analyzed the Sciacca, supra, case to the legal malpractice cause of action and concluded:

“Conceptually, the action for legal malpractice is no different than the action for medical malpractice. Both entail a deviation from the accepted standard of care- of the profession. Although the attorney-client relationship gives rise to an implied warranty of the attorney to use his best professional skill and judgment, this duty is legal rather than contractual in nature, and a breach of this duty amounts to a tort, (citations omitted). Only when an attorney breaches an express warranty of result does an action for breach of contract arise.” Cherokee Restaurant, Inc., supra at 998.

Although the Cherokee decision indicates that a malpractice action against an attorney will normally prescribe in one year, it does not rule out the ten year limitations in those instances "... when an attorney expressly warrants a particular result, i.e. guarantees ... title to property ... or agrees to perform work and does nothing whatsoever ...” Id. at 999. We followed the reasoning of Cherokee Restaurant, Inc. in Sturm v. Zelden and Zelden, 445 So.2d 32 (La.App. 4th Cir.1984). Although we held that the one year prescriptive period was applicable in that case, we also recognized that an action based on legal malpractice could be either contractual or delictual in nature.

In the instant case, appellee and appellant were placed in a legal relationship whereby appellant was called upon to perform his professional and legal duties as a Notary. Among the legal duties of a Notary when passing an act of sale are the obligations to order a mortgage certificate, conveyance certificate, to file with the assessor and to record their acts within forty eight hours. La.C.C. Articles 3370 and 2255; La.R.S. 9:2928 and 2921; La. R.S. 35:281. Clearly the obligation to record is a legal one, and following the reasoning of the above cited cases the applicable prescriptive period is one year for a breach of that obligation.

Article 3492 of our Civil Code provides: “Delictual actions are subject to a libera-tive prescription of one year. This prescription commences to run from the day injury or damage is sustained.”

In Henderson v. Diamond Datsun, Inc., 413 So.2d 542 (La.App. 4th Cir.1982) we stated:

“Prescription does not begin to run until the plaintiff has knowledge of both the tort and resultant damages; until a cause of action has manifested itself with sufficient certainty to be capable of proof in a court of law.” Id. at 544.

By appellee’s own admission she contacted appellant the week after the sale to demand a certified copy of the act and the title insurance. Approximately six months thereafter she personally visited with him to inquire as to the delay. On November 14, 1978 she obtained legal counsel to aid her in resolving the dispute. Clearly as of that date she had sufficient knowledge of the tort and resultant damages sufficient to begin the running of prescription. We therefore hold that any damage she may have sustained from the failure to record the act has prescribed.

The problem of procuring the title policy however, is of a different nature. There is no legal obligation to secure title insurance. Appellant, however, did promise to secure one for appellee in connection with the act of sale. Although the evidence is clear he was to receive no fee in connection therewith, we consider his promise to procure title insurance as part and parcel of the entire transaction, and he did obligate himself to a particular result. See, Cherokee Restaurant, Inc., supra. In that instance, his obligation was purely contractual, and thus subject to the ten year limitation. That obligation has not prescribed.

We now turn to the question of what damages are attributable to the failure to record, and what damages are the result of the failure to deliver the title policy. The award made by the trial judge was $1,500.00 for legal fees, and $2,500.00 in general damages. According to the statement for legal services submitted to appel-lee, the charges were based on 19 hours of work at $75.00 per hour, plus $75.00 in costs. Since this document is the only evidence of legal charges, and since the sale was recorded on March 21, 1979 which constitutes approximately one-half of the total time shown on the statement we reduce the legal fee portion of the judgment to $750.00.

Although the trial court awarded $2,500.00 for general damages, his reasons state:

“The medical testimony indicates that Mrs. Anderson was a very unstable person for a considerable period of time, proceeding (sic) this transaction. The history given by Mrs. Anderson indicates that she has many factors in her life which contributed to her anxiety and whereas the Court is certain that this was an upsetting to Mrs. Anderson, the Court cannot find that this incident caused, or materially contributed to her loss of employment or current medical breakdown. The Court cannot assume that the Improvement loan applied for would have been granted had Mrs. Anderson persisted.”

Based on these reasons we assume the $2,500.00 in general damages was for ap-pellee’s inconvenience and aggravation. Since we have determined that appellee's claim for damages for appellant’s failure to record has prescribed we reduce the award to $1,250.00. However, since the lower court failed to find causal connexity between appellee’s medical problems, and loss of employment with the breach of contract by appellant, we will reverse that portion of the judgment ordering appellant to pay the expert fees of Dr. Sanders, Dr. Wolf-son and Mr. Roy Swayze.

Accordingly the judgment of the lower court is amended as follows: $750.00 for legal fees, $1,250.00 for general damages and costs of $181.00. In all other respects the judgment is affirmed.

AMENDED AND AS AMENDED AFFIRMED.

      . We are referring herein to those obligations incumbent upon a Notary passing an act of sale on immovable property located in Orleans Parish.


author: DOUCET, Judge.

text:
    Gary ADAMS, Plaintiff-Appellant, v. STONE & WEBSTER ENGINEERING CORP., Defendant-Appellee.
    No. 83-816.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Brinkhaus, Dauzat & Falgoust, Jimmy L. Dauzat, Opelousas, William Henry Sanders, Jena, for plaintiff-appellant.
    Glusman, Moore and Wilkinson, Stephen W. Glusman, Baton Rouge, for defendant-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   DOUCET, Judge.

Gary Adams, plaintiff-appellant, brought this suit against Stone and Webster Engineering, Inc., defendant-appellee, seeking workmen’s compensation benefits for a total and permanent disability. The trial court held that Mr. Adams’ disabilities were not work-related and therefore denied recovery. Mr. Adams perfected this appeal of the trial court’s judgment.

The appellant claims to suffer from two disabilities, an aggravation of a previous back condition and the disfigurement of his left foot. The original accident that caused the plaintiff’s foot injury was when he stepped on a wooden splinter while engaged in week-end recreational activities on May 3, 1982. After surgery shortly thereafter, to remove the splinter, the plaintiff resumed work as an ordinary carpenter. After working at several jobsites at the direction of his union, the plaintiff began work for the defendants at the Riverbend power facility in late August. The plaintiff worked four shifts of four days each in crews that assembled and disassembled scaffolds until he was laid off on September 14, 1982. Mr. Adams again underwent surgery on his left foot about a week after the lay off in order to relieve a recurrence of a severe infection in the foot. More wood was removed from the foot during the surgery, but the extensiveness of this operation resulted in the disabling disfigurement of Mr. Adams’ left foot. At about this time, Mr. Adams also claims to have begun suffering a recurrence of pain from a pre-existing back condition. Mr. Adams now claims that along with the disfigurement of his foot, he is also precluded from working because of severe pain in his lower back.

Mr. Adams filed for workmen’s compensation benefits on November 2, 1982 and the matter was tried on April 27, 1983. At the trial Mr. Adams stated that his left foot was completely normal until he began working for Stone and Webster. On the third shift Mr. Adams claims to have begun experiencing severe burning in his left foot and on the second shift his back pain started. Mr. Adams contends that the task of constructing scaffolds was very strenuous and a radical departure from the relatively easy work he performed as a carpenter. He stated that it was the hardest and worst job that he ever had and that he thought this new work aggravated both the remaining wood in his foot causing a recurrence of the infection and a recurrence of his lower back ailment, the back injury. Mr. Adams stated that while serving in the Army in Vietnam in 1969, he injured a disc in his lower back and that corrective surgery was required in 1978 or 1979. He traces this history of back ailments as the condition aggravated by the strenuous work he did for the defendants. Mr. Smith said that he did not report his increasing pain to anyone for fear of being laid off nor did he relate his problems to any co-employees to any real degree.

The medical evidence at the trial consisted of the depositions of Dr. Joseph Gerard Patton, who was the treating physician, and on Dr. Joe Morgan, who is an orthopedic specialist testifying for the defense. Dr. Patton’s testimony was inconclusive. Although Dr. Patton said that the continuous stress on the foot that was incidental to the plaintiffs job could have precipitated the recurrence of the infection, he could not say with any certainty that that was the case. Dr. Morgan testified that the recurrence of the infection was inevitable because of remaining pieces of wood in the foot. During cross-examination, Dr. Morgan was steadfast in his opinion that the work activity did not accelerate Mr. Adams’ foot condition. Without assigning reasons, the trial court denied the plaintiff’s claim for workmen’s compensation benefits.

The appellant contends that the exceptional strain of constructing scaffolds caused the aggravation or at least the acceleration of the recurrence of two pre-ex-isting conditions. It is well settled that an accident which accelerates or aggravates a pre-existing condition is compensable even where the disability is not caused by a specific incident. Parks v. Insurance Company of North America, 340 So.2d 276 (La.1976). Therefore the fact that no specific accident caused the disability is of no consequence. But, in order to recover benefits, the plaintiff must still prove that his pre-existing conditions were accelerated or aggravated by his job by a preponderance of the evidence. Cadiere v. West Gibson Products Co., Inc., 364 So.2d 998 (La.1978); Stucky v. Home Insurance Co., 433 So.2d 776 (La.App. 3rd Cir.1983).

With respect to the foot disability, there is evidence to support the conclusion that the recurrence of the infection and the resulting disabling surgery was not work-related. Dr. Morgan was very sure in his testimony that the disabling infection was inevitable and after reviewing the facts of the case was equally sure that no activities related to the plaintiff’s employment precipitated or accelerated the infection. On the other hand the plaintiff’s medical evidence was inconclusive. Although, as the treating physician, Dr. Patton’s testimony should be given great weight, he was unable to state with any certainty that the plaintiff’s foot problems were related to his job and therefore contributes little to assisting the plaintiff meeting his burden of proof. This leaves only the claimant’s testimony to sustain this burden. The trial court resolved this issue in favor of the defendant and the record reveals no clear error in doing so. Therefore it will not be disturbed on appeal. Arceneaux v. Do-mingue, 365 So.2d 1330 (La.1978). The foot disability is non-compensable because the plaintiff did not prove by a preponderance of the evidence that it was aggravated by activities required by his job.

The appellant contends that his back disability alone justifies an award for a total and permanent disability. The only evidence on this issue is the plaintiff’s testimony. The appellant contends that the trial court erred by not accepting as true his uncontradicted testimony. It is true that the testimony of a claimant alone may be sufficient to prove the occurrence of a work-related accident but such testimony must be supported by other circumstances appearing in the record as well as also being clear and convincing. Only then will the claimant’s testimony be accepted as true. Crochet v. American Tobacco Co., 407 So.2d 1330 (La.App. 3rd Cir.1981); West v. Bayou Vista Manor, Inc., 371 So.2d 1146 (La.1979). Mr. Adams’ testimony is not supported by circumstances appearing on the record and on the contrary the circumstances presented by the testimony casts suspicion on his testimony. Mr. Adams testified that prior to his employment by the defendants he would occasionally suffer minor pain in his back while working until he was able to relieve the pain by engaging in a higher level of physical activity. But only while employed by the defendant did this remedy fail to work. Such an inconsistency casts suspicion on the plaintiff’s testimony. Furthermore, Mr. Adams never told anyone at work about his alleged back pain thereby casting more doubt on his claim that it arose out of his job. The testimony of Mr. Adams is also not clear or convincing. There is no detailed or plausible explanation offered why the particular work involved aggravated his particular back condition. In fact, Mr. Adams is vague in his description of the particular type of back trouble that he is afflicted with. In order to be clear and convincing Mr. Adams must furnish the trier of fact with a more detailed explanation of his present back condition and the reasons why it was aggravated by his employment. The trial court’s factual conclusion that the plaintiff’s back disability is not work-related is not clearly wrong and therefore will not be disturbed on appeal. Arceneaux, supra.

Workmen’s compensation benefits were properly denied. The trial court’s judgment is affirmed. Plaintiff-appellant is assessed with the costs of this appeal.

AFFIRMED.


author: CUTRER, Judge.

text:
    BOURGEOIS, DUPUIS, WRIGHT & COHEN, Certified Public Accountants, Plaintiffs-Appellants, v. James A. HAYES, Steven G. Durio, Oliver Richard, III, and 315 Office Ltd., Defendants-Appellees.
    No. 83-838.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.
    Writ Denied Dec. 7, 1984.

      Dupuis, Mayers & Harson, Michael Har-son, Lafayette, for plaintiffs-appellants.
    Hayes, Durio & McGoffin, Gary McGof-fin, Lafayette, for defendants-appellees.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This appeal arises out of a suit for the breach of a sublease.

Bourgeois, Dupuis, Wright and Cohen, sublessors, filed suit against Hayes, Durio and Richard, sublessees, seeking an acceleration of the terms of the sublease of office space, on the ground that defendants breached their obligations by failing to pay the rent due under the terms of the sublease. Defendants answered seeking a dismissal of the suit on the ground that plaintiffs had breached the terms of the sublease by refusing to allow defendants to make certain alterations in the office space as agreed upon in the sublease. Plaintiffs amended their petition by adding, as a defendant, 315 Office Ltd. (315), the original lessor, seeking judgment against 315 to cancel the original lease between plaintiffs and 315 in the event defendants were successful in asserting their defense and obtaining judgment cancelling the sublease.

From a trial court judgment dismissing their suit, plaintiffs appeal. We affirm.

FACTS

On August 29, 1980, plaintiffs leased 5,754 square feet of office space from 315 located in a building owned by 315 at 315 South College Road in Lafayette, Louisiana. The primary term of the lease was for five years with an option to renew the lease for an additional five-year term. The lease contained a provision that plaintiffs could only sublease or assign the lease if the written permission of 315 was obtained. This lease was silent as to plaintiffs’ right to make alterations of the premises.

In the latter part of 1981, the plaintiffs began negotiations with defendants for the subleasing of the 5,754 square feet of office space. James Dupuis, managing partner of plaintiffs, Tony Fazzio, and Stephen Durio, members of defendants’ law firm, represented the respective parties in those negotiations.

It is undisputed that, in the course of the negotiations, Durio and/or Fazzio informed Dupuis that the law firm did not have need for all the space, therefore, it would be necessary that the sublease contain a provision that would allow subleasing and alterations by defendants. Durio testified that Dupuis told him that he (Dupuis) did not expect any difficulty in getting permission from 315 for him to allow defendants to sublease or for him to obtain consent for alterations.

Dupuis admitted that Durio informed him of the necessity of the clause providing for the authority of defendants to sublease and make alterations. Dupuis was agreeable to such a provision. As a result such a provision was inserted into the sublease. This instrument was prepared by the attorney for the plaintiffs. The sublease contained a provision allowing defendants to sublease and to make alterations in the premises upon giving proper notice and obtaining the written consent of plaintiffs.

Pursuant to the terms of the lease between plaintiffs and 315, Dupuis received permission from 315 to sublease the property to defendants. This letter of permission, dated November 10, 1981, made no mention of any alterations to be made by defendants.

The sublease in question was executed by plaintiffs and defendants on January 15, 1982. The defendants occupied a portion of the premises. A short time later, defendants began negotiations with Exploration of Louisiana, Inc., for the sublease of approximately 1,700 square feet of the office space. Exploration informed defendants that it would be necessary that the defendants make some alterations before they would sublease the space. These alterations consisted of the closing of one door, installing four doors, one window and a partition.

Dupuis was notified by defendants of the need for alterations and he contacted Paul Kratzer, a representative of 315, seeking the permission of 315 to allow the proposed alterations. This request by Dupuis was refused. Dupuis then informed defendants that he would not grant permission for defendants to make the alterations. The sublease to Exploration was not confected. On or about September 1, 1982, defendants vacated the premises and ceased making rental payments. This suit followed.

The trial court found that plaintiffs had breached the contract by refusing to grant permission for the alterations and dismissed the suit. The issue presented is whether the trial court was in error in its ruling.

At the outset, we feel that we should clarify the question of whether the instrument is a sublease or an assignment of the lease. The record reflects references to the instrument in some places as an assignment and in other places as it is referred to as a sublease. We have examined the instrument and have determined that the instrument is a sublease and is not an assignment.

“The distinction between an assignment and a sublease is that in an assignment the original lessee transfers all of his rights in the lease, whereas in a sublease he retains some control or interest in the lease.” (Emphasis ours.)

Bordelon v. Bordelon, 434 So.2d 633 (La.App. 3rd Cir.1983).

Dupuis, manager for plaintiffs, testified that defendants paid the monthly rental payments to plaintiffs and they, in turn, would pay 315. Dupuis stated that the monthly payments made by defendants were $.50 per square foot higher than the payments made to 315 by plaintiffs. Further, the primary term of the original lease to plaintiffs was five years with a five-year option, while the primary term granted to the defendants was one year with six two-month options. Since the term granted to defendants was shorter than the term of the original lease to plaintiffs, the lease interest in the premises would revert to the plaintiffs at the expiration of defendants’ term. The instrument between the plaintiffs and defendants contained a provision recognizing the fact that a reversion would take place and set out the responsibility of the defendants when the expiration of the term took place.

These facts clearly show that plaintiff retained an interest in the lease thus it was a sublease and was not an assignment. Having concluded that the instrument was a sublease, we now shall proceed with the disposition of the issue of the case; i.e., whether plaintiffs have breached their obligation under the sublease to defendants.

The legal principles applicable to this issue are derived from the law of lease and obligations.

When parties enter into a sublease, a new contract comes into existence which is separate and distinct from the original lease between the owner and the sublessor. The rights and obligations of the sublessor and sublessee arise out of the provisions of the sublease. There is no privity of contract between the sublessee and the original owner-lessor. When a dispute arises between the sublessee and sub-lessor regarding a breach of the sublease, the court looks to the terms of the sublease in order to determine the respective rights of the sublessee and sublessor. Audubon Hotel Co. v. Braunnig, 120 La. 1089, 46 So. 33 (La.1908); Ducote v. Callico, 307 So.2d 644 (La.App. 4th Cir.1974), writ den., 309 So.2d 337 (La.1974).

As we examine the sublease we find provisions wherein plaintiffs agreed that defendants could sublease the premises or any part thereof upon obtaining written consent from the plaintiffs. Plaintiffs agreed that such consent would not be unreasonably withheld. Also, plaintiffs specifically agreed to allow defendants to make any alterations, additions and/or improvements within the leased premises after obtaining the written consent of plaintiffs. The plaintiffs also agreed that such consent would not be unreasonably withheld.

James Dupuis, the managing partner for the plaintiffs, testified that, during the negotiations, he was informed that it was important and necessary that defendants have the right to sublease and/or make reasonable alterations to the premises. Dupuis knew that defendants would not have need for the entire floor space and that the defendants planned to sublease a portion of the space to other parties. Du-puis was aware of the fact that he needed to get the consent of 315 before alterations could be made by defendants.

Dupuis, before executing the sublease, obtained written permission from 315 to allow him to sublease the premises to defendants. He failed, however, to get consent from 315 that would allow him to grant the defendants the right to make alterations. Notwithstanding the lack of consent from 315 for alterations, plaintiffs agreed to the alterations clause that was inserted into the sublease.

When defendants requested permission for the alterations in order to sublease, Dupuis then attempted to get the consent of 315, but to no avail. Dupuis then notified defendants that he would not give alteration consent, the reason being that he was unable to obtain the consent of 315. There is no contention that the proposed alterations were unreasonable.

The plaintiff counsel contends that the defendants, being a partnership composed of attorneys who negotiated the sublease, “was in as good a position [as was plaintiff] to have required some intervention by 315 in the said sublease agreement if for no other purpose than to guarantee that they [315] would authorize alterations to be suggested at a later date.” Plaintiffs then argue that defendants cannot complain that plaintiffs breached the sublease. We disagree.

As we have previously pointed out, the sublease between plaintiffs and defendants is a separate contract from the original lease. The defendants were under no obligation to negotiate with the original lessor, 315, in order to confect the sublease. The plaintiffs, before agreeing to the alteration clause, had a duty to ascertain whether the consent by 315 could be obtained in order that they could fulfill their obligation to consent to reasonable alterations. This consent from 315 plaintiffs neglected to get. The result was that plaintiffs agreed to an obligation that it was not free to perform. When the plaintiffs refused to consent to the alterations as requested, this refusal amounted to a breach of the sublease. As stated in Fontenot v. Benoit, 128 So.2d 815 (La.App. 3rd Cir.1961):

“Article 2729 of our LSA-Civil Code provides that ‘the neglect of the lessor or lessee to fulfill his engagements, may also give cause for a dissolution of the lease * * Article 2692 provides that the lessor is under an obligation to maintain the lessee in peaceable possession of the leased premises.”

Civil Code art. 2729 gives both parties the reciprocal right to cancel or terminate the sublease if either violates the terms of the agreement. We find that plaintiffs violated the sublease by refusing to allow the defendants to make the requested alterations, thus, defendants had the right to terminate the lease. The trial court correctly dismissed plaintiffs’ suit.

For these reasons, the judgment of the trial court is affirmed. Plaintiffs-appellants are to pay the costs of this appeal.

AFFIRMED.

      . We refer to this instrument as a sublease. There seems to be some question among the parties as to whether it was an assignment or a sublease. We shall clarify this question later in this opinion.

      . The action by plaintiffs against 315 was settled while the appeal was pending. That portion of the suit has been dismissed. Thus, we shall confine our opinion to the issues arising out of the sublease between plaintiffs and defendants.

      . There is no issue being made as to defendants’ subleasing to Exploration. The issue herein concerns alterations.


text:
    Brenda COOK, Plaintiff-Appellee, v. Erskine COOK, Defendant-Appellant.
    No. 83-861.
    Court of Appeal of Louisiana, Third Circuit.
    Oct. 10, 1984.

      Robert G. Nida of Gold, Little, Simon, Weems & Bruser, Alexandria, for defendant-appellant.
    Downs & Downs, James C. Downs, Alexandria, for plaintiff-appellee.
    Before DOMENGEAUX, CUTRER and DOUCET, JJ.
   CUTRER, Judge.

This appeal presents questions involving the status of certain assets acquired during the community of acquets and gains formerly existing between Brenda and Ers-kine Cook. Also, Brenda contends that the mortgage payments (including principal and interest) made during the existence of the community on the separate property owned by Erskine and which was utilized as the matrimonial home should be classified as a community debt.

Subsequent to dissolution of their marriage, Brenda sought to partition the community property and to set forth certain claims against Erskine under the guidelines of LSA-R.S. 9:2801. Each party filed a motion to traverse the detailed descriptive list of the community property provided by the other and a joint hearing on those motions was held wherein the trial court rendered judgment finding the following items to be community assets:

(1) One portable equipment shed purchased during the existence of the community;
(2) The sum of $1,912.00 on deposit in a community checking account as of the date of the community’s dissolution;
(3) A $750.00 debt due the community by Erskine for an oxidation pond constructed on Erskine’s separate property during the community’s existence; and
(4) A debt due the community by Ers-kine of $8,609.38, the total amount of the mortgage payments made by the community on the mortgage obligation attached to Erskine’s separate property, which was used by the community as the matrimonial home.

The defendant, Erskine, appeals the judgment as to each of the aforementioned items. Brenda has neither answered nor appealed. For the reasons to follow, we reverse in part, amend in part and affirm.

FACTS

The facts are derived by stipulation and from the testimony of Erskine who was the only witness to testify at the motions to traverse. A community property regime existed between the parties from September 26, 1975 (the date of their marriage) until October 22, 1980 (the date that a suit for separation was filed by Erskine). The parties were subsequently divorced in 1982, and this partition and accounting proceeding was instituted thereafter by Brenda.

The parties resided in Rapides Parish during the existence of the community and lived in a house purchased prior to the marriage and owned separately by Erskine. The house was financed by the Federal Land Bank in 1971, for a total of $17,-000.00. The monthly payments averaged approximately $150.00, including principal and interest. A total of $8,609.38 in payments were made on the mortgage obligation during the existence of the community. The trial court found Erskine to be liable to the community for these payments. Of this amount $1,745.80 was payment on the principal and $6,863.58 (the balance) was interest expense.

During the marriage, Erskine was employed by Missouri Pacific Railroad and his salary was the only source of income to the community. Apparently, Brenda’s functions as the at-home-spouse included the care of three children who were the issue of a prior marriage by Erskine and who were also in his legal custody.

In 1979, the parties purchased a metal portable storage building for $754.00; the building was placed on Erskine’s separate property. This building was recognized as community property by the trial judge.

In approximately July 1980, an oxidation pond, serving the matrimonial home, was built on Erskine’s property at a cost of $750.00. Erskine testified that his property did not have access to a municipal sewerage system and he had, therefore, previously used a septic tank and field line. However, that system failed because of ground saturation which disrupted sewerage removal from the house. The oxidation pond was constructed to alleviate this problem. The trial judge found Erskine to be indebted to the community for the $750.00 construction cost.

On the date of the community’s dissolution (October 22, 1980), a checking account solely in the name of Erskine and to which he deposited his semi-monthly pay checks, reflected a balance of $1,912.00. On the day before this, $1,000.00 was deposited into the account. According to Erskine, this amount was given personally to him by his father “to help with the kids.” No other bank accounts were shown to exist. The trial judge recognized the balance of $1,912.00 as being community property.

We shall discuss each of the items separately.

PORTABLE BUILDING

The testimony of Erskine clearly reflects that the building in question was a metal portable building purchased in 1979 with community funds during the existence of the community. It was placed upon the property for use as a storage building.

Under both the pre-1980 law and the present law, this item is considered community property. See, LSA-C.C. art. 2402 (repealed) and LSA-C.C. art. 2338. The trial court correctly deemed this asset as community.

CHECKING ACCOUNT

As to the status of the checking account, the trial court, in its reasons for judgment, properly disposed of this issue as follows:

“One such item concerns the amount on deposit in Mr. Cook’s checking account at the time of the separation. On October 22, 1982, this account contained the sum of $1,912.00. Mr. Cook contends that of this amount $1,000 was a gift to him from his father and should not be a part of the community funds. It is presumed that any funds in a checking account during the existence of the community are community funds. The unsupported testimony of Mr. Cook is not sufficient to overcome this presumption. Therefore, the full amount on deposit as of October 22, 1982, must be considered community funds....”

Erskine failed to produce any independent or corroborating evidence that he was given a donation by his father. In view of this, we cannot say that the trial court was in error. Succession of Milton, 278 So.2d 159 (La.App. 1st Cir.1973).

OXIDATION POND

The trial court found that Erskine was indebted to the community for the $750.00 paid on the oxidation pond in July 1980, while the community still resided in Erskine’s house. We find this to have been an improper award.

Article 2366 of the Civil Code, in effect at the time the oxidation pond was built, provides as follows:

“If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community property had at the time it was used.”

Counsel for Brenda argues that this provision allows recovery of one-half of the $750.00 spent on the oxidation pond. We disagree, finding that this expenditure was a necessary one which the community required while residing in Erskine’s house.

As taxes and insurance payments are expenses which the community should bear as it receives the benefits of residing on the separate property of one spouse, so are repairs made on a house that are necessary to maintain its livability. The only evidence as to the need for the oxidation pond comes from Erskine’s testimony, which reflects that the area’s ground had become too saturated for the use of a septic tank and field lines.

Had the Cooks chosen to merely replace the septic tank and lines with a new and similar system, we have no doubt that this would be a community debt. See, LSA-C.C. art. 2360 and LSA-C.C. art. 2363. We can see no basis for distinguishing that chosen means of repair from one wherein an oxidation pond, the necessary system, was installed.

Therefore, the expenses of constructing the oxidation pond was a necessary community expense, and the trial court erred in concluding that this was a community debt.

MORTGAGE PAYMENTS ON SEPARATE PROPERTY USED AS THE MATRIMONIAL HOME

The trial court held that Erskine was indebted to the community for the total ($8,609.38) of all the mortgage payments made during the existence of the community on the house and property separately owned by Erskine, but used during the parties’ marriage as the sole matrimonial home. Although he did not state his reasons for this ruling, the trial judge apparently accepted Brenda’s argument that LSA-C.C. art. 2364 allowed the recovery granted. That article, created by Act 709, § 1 of 1979, became effective on January 1, 1980, and reads as follows:

“If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used.

The parties, do not dispute the fact that the payments made on the mortgage obligation came from community funds/property. Erskine argues that art. 2364 cannot apply retrospectively to the payments made prior to January 1, 1980 (see C.C. art. 8), and that the law pre-exist-ing Act 709, which only allowed the non-owning spouse to recover principal payments, should control as to mortgage payments made prior to January 1, 1980. In any event, Erskine argues, the new law should not allow Brenda to recover interest and principal payments, but if it does, he, in like manner, is entitled to rental payments from the community for the use of his separate property. This counter argument rests upon a reading of art. 2365, also created by Act 709, which states:

“If separate property of a spouse has been used to satisfy a community obligation, the spouse, upon termination of the community property regime, is entitled to reimbursement for one-half of the amount or value that the property had at the time it was used.
“Reimbursement may only be made to the extent of community assets, unless the community obligation was incurred for the ordinary and customary expenses of the marriage, or for the support, maintenance, and education of children of either spouse in keeping with the economic condition of the community. In the last case, the spouse is entitled to reimbursement from the other spouse even if there are no community assets.

This court has previously determined that the new Matrimonial Regimes Law, enacted by Act 709 of 1979, does not require a result different from the prior law regarding mortgage payments. The present law reflects substantial changes regarding spousal management of property, creditors’ rights and property rights, but this court, in the very recent case of Willis v. Willis, 454 So.2d 429 (La.App. 3rd Cir.1984), was faced with facts similar to those in the case at hand and held as follows:

“The facts were stipulated. When the parties married in 1977, Osborne owned, separate property, a residence, burdened with two mortgage notes requiring combined payments of $231.91 a month, amounts which included both principal and interest. The couple made this residence their family home, and for four years the monthly installments on the mortgage notes were paid with community funds, totaling $11,-131.68. When the community property regime, terminated by separation in 1981, Geraldine claimed reimbursement of one-half of the community property used to make the monthly payments. The trial judge allowed reimbursement of one-half of only the principal amount of the payments made during the time period before January 1, 1980; for the period after that date, believing that there had been a change in the law, he allowed reimbursement of one-half the total payments of both principal and interest.
“We agree with the trial court’s determination of the measure of reimbursement for the time period before January 1, 1980. Under former Civil Code art. 2408, when separate property increased in value, the other spouse was entitled to one-half the enhanced value. Thus, when separate property was used as a community home, and community funds were used to pay a mortgage note incurred as a separate obligation, on termination of the community the other spouse was entitled to reimbursement of one-half the principal, but not one-half the interest payments. Hurta v. Hurta, 260 So. 2d 324 (La.App. 4th Cir.1972). The Fourth Circuit in Hurta equated the increase in value with the principal payments on the mortgage note. Further, it reasoned that, because the husband’s separate property was used as the family home, the interest paid on the mortgage note was a community expense in producing a ‘profit’ to the community under former article 2402:
. By providing his separate house as the family home, the husband dedicates its actual “profits,” although not reduced to a dollar-revenue, to the community, and that dedication produces an actual, in-pocket, dollar saving to the community in the form of the rent for another house which the community consequently does not have to expend.
‘The husband’s separate property unquestionably did produce “profits” to the community, and, in the Supreme Court’s words in Ratcliff, supra, 24 So.2d at 460, “it is but just, equitable and proper that the ordinary expenditures required in the production of such profits and in the preservation of the property should be borne by the community.” ...’
On the basis of the reasoning of the Hurta case, we think the trial judge in the present case was correct in limiting the reimbursement to one-half the amount of principal paid on the mortgage notes for the period before January 1, 1980.
“Neither the codal underpinnings nor the logic of Hurta were changed by the new Matrimonial Regimes Law (Act 709 of 1979), effective January 1, 1980, as applied to the present issue. It is true that present articles 2364 and 2366 changed the measure of reimbursement from one-half the enhanced value to one-half of the community property so used. These articles read:
‘Art. 2364:
“If community property has been used to satisfy a separate obligation of a spouse, the other spouse is entitled to reimbursement upon termination of the community property regime for one-half of the amount or value that the property had at the time it was used. ”
‘Art. 2366:
“If community property has been used for the acquisition, use, improvement, or benefit of the separate property of a spouse, the other spouse is entitled upon termination of the community to one-half of the amount or value that the community •property had at the time it was used. ” ’
However, applying the reasoning of Hurta and looking at present laws in pari materia, we note that the fruits and revenues of Osborne’s separate property (unless reserved by him, which was not done in this case) belonged to the community. Civil Code art. 2339. The use of Osborne separate residence by the community was an enjoyment of the ‘natural and civil fruits’ of the separate property. The cost of this benefit to the community included the payment of interest. Succession of Rat-cliff, 24 So. 2d 456 (La. 194-5). The principal payment on Osborne’s notes went to the satisfaction of a separate obligation under article 2364, as well as to the ‘acquisition ... or benefit of the separate property’ under article 2366, and did not benefit the community at all. Therefore, the payment of the principal with community funds entitles the other spouse to reimbursement. On the other hand, the payment of interest benefitted the community, because this was a business cost of maintaining the natural and civil fruits of this separate property for the community’s use. Therefore, the interest cost should not have been included in the amount to which the other spouse was entitled to reimbursement. ”

Under this reasoning the trial court in the case at hand erred in classifying the total mortgage payments as a debt due the community. According to Willis, only the principal paid on the mortgage payments can be regarded as a debt owed to the community by the separate estate of Ers-kine.

Accordingly, that portion of the trial court judgment recognizing the debt due the community to be $8,609.38 by Erskine Cook as a result of mortgage payments shall be reduced to $1,745.80.

For these reasons, that portion of the trial court judgment recognizing that the sum of $750.00 paid for the oxidation pond was a debt owed to the community is reversed and set aside. Also, that portion of the trial court judgment, recognizing that the sum of $8,609.38 paid as mortgage payments was a debt owed to the community, is amended by reducing this amount to the sum of $1,745.80. In all other respects the judgment of the trial court is affirmed. The costs of this appeal are assessed equally between the parties.

REVERSED IN PART; AMENDED IN PART AND AFFIRMED.

      . Other assets and claims were also dealt with by the trial court, but the parties have not contested their disposition.

      . These figures are derived from data provided by the parties covering the period of October 1, 1975 to October 31, 1980. Although the community actually existed from September 26, 1975 until October 22, 1980, we do not find a four-day discrepancy deserving of more detailed calculations than those we have made herein.

      . LSA-C.C. art. 2402 provides:
      “This partnership or community consists of the profits of all the effects of which the husband has the administration and enjoyment, either of right or in fact, 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, either by donations made jointly to them both, or by purchase, or in any other similar way, even although the purchase be only in the name of one of the two and not of both, because in that case the period of time when the purchase is made is alone attended to, and not the person who made the purchase. But damages resulting from personal injuries to the wife shall not form part of this community, but shall always be and remain the separate property of the wife and recoverable by herself alone; ‘provided where the injuries sustained by the wife result in her death, the right to recover damages shall be as now provided for by existing laws.'"

      .See note 4 on page 238.

        4.LSA-C.C. art. 2338 provides:
      “The community property comprises: property acquired during the existence of the legal regime through the effort, skill, or industry of either spouse; property acquired with community things or with community and separate things, unless classified as separate property under Article 2341; property donated to the spouses jointly; natural and civil fruits of community property; damages awarded for loss or injury to a thing belonging to the community; and all other property not classified by law as separate property."

      . LSA-C.C. art. 2360 provides:
      "An obligation incurred by a spouse during the existence of a community property regime for the common interest of the spouses or for the interest of the other spouse is a community obligation.”

      . See note 6 on page 239.

        6. LSA-C.C. art. 2363 provides:
      "A separate obligation of a spouse is one incurred by that spouse prior to the establishment or after termination of a community property regime, or one incurred during the existence of a community property regime though not for the common interest of the spouses or for the interest of the other spouse. An obligation resulting from an intentional wrong not perpetrated for the benefit of the community, or an obligation incurred for the separate property of a spouse to the extent that it does not benefit the community, the family, or the other spouse, is likewise a separate obligation."